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Agenda 02-21-23The City of Boynton Beach City Commission Agenda Tuesday, February 21, 2023, 6:00 PM City Hall Commission Chambers Boynton Beach City Commission Mayor Ty Penserga (At Large) Vice Mayor Angela Cruz (District 1) Commissioner Woodrow L. Hay (District 11) Commissioner Thomas Turkin (District 111) Commissioner Aimee Kelley (District IV) Daniel Dugger, City Manager Michael Cirullo, City Attorney Maylee DeJesus, City Clerk *Mission* To create a sustainable community by providing exceptional municipal services, in a financially responsible manner. tall www. boy nton- beach. org Page 1 of 971 Welcome Thank you for attending the City Commission Meeting General Rules & Procedures for Public Participation at City of Boynton Beach Commission Meetings The Agenda: There is an official agenda for every meeting of the City Commissioners, which determines the order of business conducted at the meeting. The City Commission will not take action upon any matter, proposal, or item of business, which is not listed upon the official agenda, unless a majority of the Commission has first consented to the presentation for consideration and action. • Consent Agenda Items: These are items which the Commission does not need to discuss individually and which are voted on as a group. • Regular Agenda Items: These are items which the Commission will discuss individually in the order listed on the agenda. • Voice Vote: A voice vote by the Commission indicates approval of the agenda item. This can be by either a regular voice vote with "Ayes & Nays" or by a roll call vote. Speaking at Commission Meetings: The public is encouraged to offer comment to the Commission at their meetings during Public Hearings, Public Audience, and on any regular agenda item, as hereinafter described. City Commission meetings are business meetings and, as such, the Commission retains the right to impose time limits on the discussion on an issue. • Public Hearings: Any citizen may speak on an official agenda item under the section entitled "Public Hearings." • Public Audience: Any citizen may be heard concerning any matter within the scope of the jurisdiction of the Commission - Time Limit - Three (3) Minutes. Regular Agenda Items: Any citizen may speak on any official agenda item(s) listed on the agenda after a motion has been made and properly seconded, with the exception of Consent Agenda Items that have not been pulled for separate vote, reports, and presentations. - Time Limit - Three (3) Minutes. Addressing the Commission: When addressing the Commission, please step up to either podium and state your name for the record. Decorum: Any person who disputes the meeting while addressing the Commission may be ordered by the presiding officer to cease further comments and/or to step down from the podium. Failure to discontinue comments or step down when so ordered shall be treated as a continuing disruption of the public meeting. An order by the presiding officer issued to control the decorum of the meeting is binding, unless over -ruled by the majority vote of the Commission members present. Please turn off all cellular phones in the City Commission Chambers while the City Commission Meeting is in session. The City of Boynton Beach encourages interested parties to attend and participate in public meetings either in-person or via communications media technology online. To view and/or participate in the City Commission meeting online you have the following options: 1. Watch the meeting online, but not participate: Page 2 of 971 You may watch the meeting via the GoToWebinar platform. Visit the City's website at www.boynton-beach.org to access the up-to-date link to the meeting. 2. Watch the meeting online and provide public comment during the meeting: To request to speak during the meeting, you can electronically "raise your hand" or type a question using the GoToWebinar platform. The meeting moderator will announce when it is your turn to speak or have your question addressed. Please note that time limits will be enforced so comments must be limited to no more than 3 minutes. For additional information or for special assistance prior to the meeting, please contact Mavlee De Jesus, City Clerk at cityclerk@bbfl.us or (561) 742-6061. Page 3of971 1. Openings A. Call to Order - Mayor Ty Penserga Roll Call Invocation by Pastor Patterson, Seacrest Presbyterian Church Pledge of Allegiance to the Flag led by Mayor Ty Penserga Agenda Approval: 1. Additions, Deletions, Corrections 2. Adoption 2. Other A. Informational items by the Members of the City Commission. 3. Announcements, Community And Special Events And Presentations A. The City of Boynton Beach and the Boynton Beach Veterans Task Force will host a dedication ceremony during Black History Month for the Tuskeegee Airmen Monument on Saturday, February 25 at 10:00 A.M. The ceremony will be held at the Tom Kaiser, USN, Boynton Beach Veterans Memorial Park (411 N. Federal Hwy). B. Proclaim February 21, 2023 as Robert E. Wells Day. Bishop Bernard Wright will accept the proclamation. C. Announce the City of Boynton Beach Career Fair taking place at the Boynton Beach Arts & Cultural Center at 125 E. Ocean Avenue, on Friday, March 3, 2023 from 9:00 A.M. to 5:00 P.M., and Saturday, March 4, 2023 from 10:00 A.M. to 2:00 P.M. 4. Public Audience Individual Speakers Will Be Limited To 3 Minute Presentations (at the discretion of the Chair, this 3 minute allowance may need to be adjusted depending on the level of business coming before the City Commission) 5. Administrative A. Appoint eligible members of the community to serve in vacant positions on City Advisory Boards. 6. Consent Agenda Matters in this section of the Agenda are proposed and recommended by the City Manager for "Consent Agenda" approval of the action indicated in each item, with all of the accompanying material to become a part of the Public Record and subject to staff comments A. Approve a 7% increase (or $28,220.30) to the contract for services associated with the Landscape Maintenance Services contract for Medians and Right -of -Ways, Bid No. 033-2730- 20/RW performed by Batallan Enterprises, Inc. dba Property Works. The contract will total $436,718.27 after the increase. B. Authorize a budget amendment to transfer funds in the amount of $222,184 from Utilities Capital Improvement Fund Account 403-5000-535-64.15 project UC2101 to project UC2202. These funds will be used for the purchase for OT Cyber and Network Design Services for GrayMatter Systems, LLC, which was approved by Commission at the December 6, 2022 meeting. C. Proposed Resolution No. R23-017 - Approve an amendment to Resolution R23-005 by Page 4 of 971 amending Exhibit "A." The FY 2022-23 budget amendment submitted and approved on January 3, 2023 will adjust budgeted appropriations and revenue sources and provide spending authority for the General Government Capital Improvement Surtax Fund (303), the Utility Capital Improvement Fund (403), and the Golf Capital Improvement Fund (412). D. Proposed Resolution No. R23-018 - Approve the temporary lane closures in the 2000 Block of State Road 5 (Federal Hwy) - 700 feet of the right lane heading Northbound and 400 feet of the left lane heading Southbound on Tuesday, July 4, 2023 for the annual 4th of July event, and authorize the City Manager, or designee, to apply for the State permit for the temporary road closure. E. Accept the written report to the Commission for purchases over $10,000 for the month of January 2023 F. Approve the one-year extension for RFPs/Bids and/ or piggy -backs for the procurement of services and/or commodities under $100,000 as described in the written report for February 21, 2023 - "Request for Extensions and/or Piggybacks." G. Approve minutes from the February 7, 2023 City Commission Meeting. 7. Consent Bids And Purchases Over $100,000 A. Approve the purchase of seven (7) replacement vehicles that were approved in the FY22-23 budget for an estimated amount of $374,710 by utilizing the Florida Sheriff's Contract FSA22- V E L30.0. B. Approve the one-year extension for RFPs/Bids and/ or piggy -backs for the procurement of services and/or commodities over $100,000 as described in the written report for February 21, 2023 - "Request for Extensions and/or Piggybacks." 8. Public Hearina 6 p.m. or as soon thereafter as the agenda permits. The City Commission will conduct these public hearings in its dual capacity as Local Planning Agency and City Commission. A. Proposed Ordinance No. 23-001 - Second Reading - Approve modifications to the existing methodology for the Payment in Lieu of Workforce Housing Units program; to include an FAR bonus; and to clarify the receiving areas for height, FAR, and density bonuses (CDRV 23-001) by amending LAND DEVELOPMENT REGULATIONS, Chapter 1. Art 11. Sec 2.C.11. In -Lieu and Off -Site Options (related to the Workforce Housing Program). B. Proposed Ordinance No. 23-003 - Second Reading- Approve modifications (CDRV 23-003) amending the LAND DEVELOPMENT REGULATIONS, Chapter 2. Land Development Process, Article 11. Planning and Zoning Division Services, Section 2. Standard Applications, to establish a process for proposed Development Agreements. C. Proposed Ordinance No. 23-005- First Reading - Approve The Pierce request for Rezoning (REZN 22-001) from Central Business District (CBD) to Mixed -Use Core (MU -C), property generally located at the intersection of East Ocean Avenue and North Federal Highway. Applicant: Jeffery Burns, Affiliated Development. D. Proposed Ordinance No. 23-006- First Reading. Approve request for Abandonment of the 225 - foot long segment of the 20 -foot wide right-of-way located within the northern section of the proposed The Pierce development approximately 175 feet south of the East Boynton Beach Boulevard centerline (a.k.a. "North Alley") (ABAN 22-001), the 225 -foot long segment of the 40 - foot wide NE 1st Avenue right-of-way (ABAN 22-002), and the 335.02 -foot long segment of the 20 -foot wide right-of-way located within the southern section of the proposed The Pierce Page 5of971 development, approximately 150 feet north of the East Ocean Avenue centerline (a.k.a "South Alley") (ABAN 22-003). Applicant: Jeffery Burns, Affiliated Development. E. Approval of Variance (ZNCV 23-002) of Part III, Chapter 4, Article II, Section 4.B.3.c — Urban Landscape Buffer (Type 2), to grant a variance of seven (7) feet from the required twelve (12) foot buffer, to allow for a five (5) foot wide landscape buffer, and the elimination of the requirement to provide a six (6) foot tall masonry wall. F. Approve request for a New Master Plan (MPMD 22-005) and New Major Site Plan (NWSP 22- 004) for The Pierce mixed-use development to allow the construction of an eight (8) -story building with 300 dwelling units, 17,089 square feet of commercial space, associated recreational amenities, and parking on a 3.04 acre site, located generally at the intersection of East Ocean Avenue and North Federal Highway. Applicant: Jeffery Burns, Affiliated Development. G. Approve request for four (4) Community Design Appeals (CDPA 22-002, 23-006, 23-007, & 23- 008) of Chapter 4, Article III, Section 6.F.2.c, Freestanding Parking Garages, which prohibits freestanding parking garages from having frontage on any arterial or collector roadway, to allow for alternative design solutions for the freestanding parking garage as proposed, for The Pierce mixed-use project in the MU -C (Mixed -Use Core) zoning district. Applicant/Agent: Jeffery Burns, Affiliated Development H. Approve request for Height Exception (HTEX 23-001) to allow the freestanding parking garage egress staircase of the The Pierce mixed-use project to be constructed at 77 feet 11 inches, 2 feet 11 inches above the maximum allowable height of 75 feet in the MU -C (Mixed -Use Core) zoning district. Applicant/Agent: Jeffery Burns, Affiliated Development Approval of a Major Master Plan Modification for Boynton Beach Town Square to amend the number of proposed dwelling units, project phasing, and allow for additional commercial area. Applicant: Robert Singer, Time Equities, INC. Proposed Resolution No. R23-022- Approve and authorize the Mayor to sign the Temporary Parking Easement Agreements and all documents associated therewith between the City of Boynton Beach and Boynton Beach Town Center Apartments, LLC. K. Proposed Resolution No. R23-023- Approve and authorize the Mayor to sign a Continuing Parking Lease Agreements (North and South) between the City of Boynton Beach and the Boynton Beach Town Center Apartments, LLC. L Proposed Resolution No. R23-024 - Approve and authorize the Mayor to sign the Escrow Agreement and any and all documents associated therewith between the City of Boynton Beach and Boynton Beach Town Center Apartments, LLC., and Goren, Cherof, Doody & Ezrol, P.A., as Escrow Agents. M. Proposed Ordinance No. 23-004- Second Reading - Approving and authorizing the proper City Officials to enter into a Development Agreement with Boynton Beach Town Center Apartments, LLC., an affiliate of Time Equities, Inc., for the development of certain real property within the area known as Town Square. 9. City Manager's Report - None 10. Unfinished Business A. Proposed Resolution No. R23-019- Approve and authorize the Mayor to sign a First Amendment to Comprehensive Agreement for Ground Lease and Training Facility with Primetime Sports Group, LLC to amend the original Agreement to increase the allowable size of the Facility, update the Conceptual Site Plan, and increase the amount of time for substantial/final completion. B. Proposed Resolution No. R23-020- Approve and authorize the Mayor to sign the ARPA Subrecipient Partnership Agreements with Boynton Beach's nine (9) public schools for a total amount of $848,500. Below is a list of the City's public schools: Page 6 of 971 Freedom Shores Elementary Forest Park Elementary Poinciana STEM Elementary Galaxy E3 Elementary Crosspointe Elementary Rolling Green Elementary Citrus Cove Elementary Congress Middle Boynton Beach Community High 11. New Business - None 12. Legal A. Proposed Resolution No. R23-021- Approve and authorize the Mayor to sign the Declaration of Restrictive Covenant restricting the future park site in the Leisureville subdivision to use as a passive public park. 13. Future Agenda Items A. Update on EcoPark, requested by Commissioner Kelley. - March 9, 2023 B. Consider revised local rules for approval. - March 21, 2023 C. Continue discussion on adding a new sister city, requested by Commissioner Turkin - March 2023 D. Discussion regarding American Rescue Plan Funds, requested by Mayor Penserga - TBD E. Discussion regarding installing a coral reef at Oceanfront Park, requested by Commissioner Turkin - TBD F. Review Advisory Board Ordinance, requested by Commissioner Kelley. - TBD G. Discussion regarding future cemetery lots in Boynton Beach, requested by Commissioner Hay -TBD H. Discussion for Ordinance regarding tints for paraphernalia shops, requested by Commissioner Turkin - TBD I. Look into lowering or waiving arts impact fees for small businesses, requested by Commissioner Turkin- TBD J. Discussion regarding changing minimum requirements for traffic studies, requested by Commissioner Turkin- TBD K. Update regarding speedbumps throughout the City, requested by Commissioner Turkin-TBD L. Discussion regarding bringing more jobs to the City at former ToysRUs site, requested by Commissioner Turkin.- TBD 14. Adjournment Notice If a person decides to appeal to any decision made by the City Commission with respect to any matter considered at this meeting, He/She will need a record of the proceedings and, for such purpose, He/She may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. (ES. 286.0105) The city shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to Page 7 of 971 participate in and enjoy the benefits of a service, program, or activity conducted by the city. Please contact the City Clerks office, (561) 742- 6060 or (TT i) 1-800-955-8771, at least 48 hours prior to the programor activity in order for the city to reasonably accommodate your request. Additional agenda items may be added subsequent to the publication of the agenda on the city's web site. lnformation regarding items added to the agenda after it is published on the city's web site can be obtained fromthe office of the City Clerk Page 8of971 Requested Action by Commission: The City of Boynton Beach and the Boynton Beach Veterans Task Force will host a dedication ceremony during Black History Month for the Tuskeegee Airmen Monument on Saturday, February 25 at 10:00 A.M. The ceremony will be held at the Tom Kaiser, USN, Boynton Beach Veterans Memorial Park (411 N. Federal Hwy). Explanation of Request: This event is to dedicate the monument at Tom Kaiser, USN, Boynton Beach Veterans Memorial Park in honor of the Tuskegee Airmen. How will this affect city programs or services? Fiscal Impact: Alternatives: Strategic Plan: Strategic Plan Application: Climate Action Application: Is this a grant? Grant Amount: Attachments: Page 9of971 Requested Action by Commission: Proclaim February 21, 2023 as Robert E. Wells Day. Bishop Bernard Wright will accept the proclamation. Explanation of Request: Robert E. Wells settled in Boynton Beach in 1890 and raised his family in the City. He helped found the oldest church in the City - St. Paul's AME Church; was a petitioner for the provision of the first black/African American school; was a signatory of the document incorporating Boynton as a town; and platted the Robert Wells subdivision in 1925. This proclamation honors his memory and recognizes his contributions to the City of Boynton Beach. How will this affect city programs or services? Fiscal Impact: Alternatives: Strategic Plan: Strategic Plan Application: Climate Action Application: Is this a grant? Grant Amount: Attachments: Type Description FlirtaaJa irna bola Flirta:Ja irnatioin If olbE)irt II::... VVE)lIS IDay Page 10 of 971 pro e I CGAM Cation WHEREAS, Mr. Robert E. Wells, a merchant sailor from Cat Island in the Bahamas, settled in Boynton in 1890 where he and his wife, Elizabeth, raised one son, Harry. WHEREAS, in 1892, Robert and Elizabeth Wells helped found St. Paul's African Methodist Episcopal Church. Officially established in 1900, St. Paul's AME is the oldest church in the city. WHEREAS, in 1896, Mr. Wells, and other members of St. Paul's AME, successfully petitioned Dade County School Board to provide a school for Boynton's black/African American children. Originally called "Boynton Colored School," it later became known as "Poinciana Elementary." WHEREAS, On April 14, 1920, Mr. Wells was a signatory of the document incorporating Boynton as a town; however, the land owned by him and the rest of the historic Heart of Boynton was not recognized in the incorporation and was called "Boynton Colored Town." WHEREAS, in 1925, Mr. Wells platted the Robert Wells Subdivision. He built the main thoroughfare in the historic Heart of Boynton called Wells Avenue (now known as Martin Luther King Junior Boulevard) and built a home at number 416. In addition to selling land and building houses, Mr. Wells donated lots to those in need, including St. Paul's AME for the building of a church. In time, Wells Avenue became a thriving downtown area for the black/African American community. NOW THEREFORE, I, Ty Penserga, Mayor of the City of Boynton Beach, Florida, do hereby proclaim the 21" of February, Two Thousand Twenty -Three as: Robert E. Wells Day IN WITNESS WHEREOF, I have hereunto set my hand and caused the Seal of the City of Boynton Beach, Florida, to be affixed at Boynton Beach Florida, the 21" day of February, Two Thousand Twenty - Three. Ty Penserga, Mayor ATTEST: Maylee De Jesus, MMC City Clerk Requested Action by Commission: Announce the City of Boynton Beach Career Fair taking place at the Boynton Beach Arts & Cultural Center at 125 E. Ocean Avenue, on Friday, March 3, 2023 from 9:00 A.M. to 5:00 P.M., and Saturday, March 4, 2023 from 10:00 A.M. to 2:00 P.M. Explanation of Request: Announce the City of Boynton Beach Career Fair. How will this affect city programs or services? Fiscal Impact: Alternatives: Strategic Plan: Strategic Plan Application: Climate Action Application: Is this a grant? Grant Amount: Attachments: Page 12 of 971 5.A. Administrative 2/21/2023 11 City of Boynton Beach D Agenda Item Request Form Commission Meeting Date: 2/21/2023 Requested Action by Commission: Appoint eligible members of the community to serve in vacant positions on City Advisory Boards. Explanation of Request: The attached list contains vacancies on the various Advisory Boards, with the designated Commissioner having the responsibility for the appointment to fill each vacancy. How will this affect city programs or services? Appointments are necessary to keep City Advisory Boards full and operating as effectively as possible. Fiscal Impact: There is no fiscal impact to the budget for this item. Alternatives: Allow vacancies to remain unfilled. Strategic Plan: Building Wealth in the Community Strategic Plan Application: Climate Action Application: Is this a grant? Grant Amount: Attachments: Type ttaclhtirTIENI'll ttaclhtirTIENI'll ttaclhtirTIENI'll ttaclhtirTIENI'll ttaclhtirTIENI'll Description ppoiir:tirTIE)i is air:d AppIicaints 02...21...23 1....11airlirnair:ir:, (3)irEslg Art Advisory Board VVlilllllia erns,XEV ,yah Art Advisory Board Czlizlilk, Jla irTIE)S SE)ir:lioir Advisory Board (.')alllla ghE)r, IRE)E)ir:a w ENI':lior Adria:oiry Board Page 13 of 971 Advisory Board Vacancies as of February 21, 2023 Art Advisory Board Vice Mayor Cruz Regular 3 -year term Applicant: Gregory Hartmann — Currently an Alternate member on the Board, seeking appointment to Regular member. A'Keyah Williams Building Board of Adjustment and Appeals IV Kelley Alternate 1 -year term Applicants: None Education and Youth Advisory Board Vice Mayor Cruz Alternate 1 -year term IV Kelley Student 1 -year term Mayor Penserga Student 1 -year term Applicants: None Historic Resources Preservation Board Mayor Penserga Alternate 1 -year term Applicants: None Library Board Mayor Penserga Alternate 1 -year term Vice Mayor Cruz Alternate 1 -year term Applicants: None Police Officers' Retirement Trust Fund Vice Mayor Cruz City Resident 4 -year term II Hay 5th Trustee 4 -year term Applicants: None Recreation and Parks Board III Turkin Alternate 1 -year term Applicants: None Page 14 of 971 Advisory Board Vacancies as of February 21, 2023 Senior Advisory Board Vice Mayor Cruz Regular 4 -year term Commissioner Hay Alternate 1 -year term Applicants: Reena Gallagher James Czizik Page 15 of 971 13rMRMMN= From: City Clerk Sent: Wednesday', January 11, 2023 1038 AM To: Stainzione, Tan-irny Subject- FW: Advisory Board Appointnwrst application Attachments: Gire gl--lartiiiannRes,ume2O2,pclf From. re harts <noreplly@123foriii,builcier.coryi> Sent�: Wednesday, January 11, 2023 9:56 AM To: City Clerk <City0erk@bbfl.us> Subject: Advisory Board Appo4itment application Name Gregory Hartmann Phone number 954-258-3236 Address 1083 SW 25 RL Boynton, Beach FL 33426 United States Eirnall &re.cor &hL jrLsrq p Lonrnafln, _p Current occupation or, if retired, prior Motion Graphic Designer occupation, Education ConnecfiCLA School! of Broadcasting Are you a, registered voter? Yes Do you reside within the Boynton Beach Yes City limits? Do 'you own/manage a business within City "des firnits? If "Yes", name of Modern Ainirnal LLC business: Are you currently serving on a City Yes board? Have you served on a , e past'? City board lin th Yes Page 16 of 971 If "yes", which '? Currently an alternate on the Arts Advisory board, would hike to become a full member. board(s) and when. If "yes", when and where? Adviisory Board Art Advisory Board If appiointed by the City Commission to serve as Board Chair Yes or Vice Chaiir alre you willing to; serve In this capacity? Personal I am a full time motion graphic artist working in the advertising and creative industries. I work Qualifications to create motion graphic inspired ads, social media creative, acrd over alli digital marketing creative for srnall to mid size bUsinesses. Through nny own business, l do video production & media buying to help business owners put their creative in front of the right audiences at the right time, I have previously worked for'WSVN in Miami, and several ad agencies in PaIrn IBeach County. Here is a link towork ive created this past year through my business !21tp:s AvimecLcorn&�OOQ601 Thank, you for your time and consideration. Professional Delray Beach Police Benevolent Assoblation Memberships Roard meniliber - Festival Latino Feel free to attach/upload an hit s. orm.12LfnrrnbtJlOer.pLryjiu No Ldph ?fiLei4=5,a2(L4,12 _Sj1606d49cOeOf5O61O4ffe8341 extra sheet or resume,. Certification 1, the applicant, hereby certify that the statei,nents and answers provided herein are true and accurate. I understand that, if appointed, any false statements aiay be cause for removal from a board'. The rriessage has been sent ftoiru 99,35,29, 159 (United States) at 2023,-01-11 09:55:33 On afarr 15.6.1 Entry 11D: 582 torn Host': N'itip.,IZLQL!11,,Ifofrriibuilde�,.coi 583 t�a ct 214 _LJsoryLl:joa4ajjj2oinLi�n ntA)j2jicadcLn ..... . ........ L _q_ 2 Page 17 of 971 Mr 954-258-3236 g reg ha rts@protorima i I coirn 1083 SW 25 PL Boynton Beach, FL Motion Graphic Artist, Creative Problern Solver i'm a senior level motion graphic artist with over, 10 years of experience. I specialize in After Effects and corrirriercial design, I arn Mso a, strong advocate for better communities, f serve on my cities Art Advisory Board arid Volunteer for local organizations to produce media and provide hve video services. SeMor, Motion Graphic Artist, ChUrnney & Associates, R. PWirn Beach, FL , 2'01 6 - Le ding Leading the video department in design aind technique, lve helped bring production standards, higher, and Win around times faster. Ulsing the latest in, scripts for After Effects, I was able to bring turn around firne to r6inutos, instead of hours. Studio Manager', OMG NatiorW, Rantation, Ft. , 20112 -2015 Hielped grow a studiol's production 200% in my tenure. Developed a server for rnedia management and work flow while creatingfilming end writing spots, for television an(]: online delivery, JUnior Editor, WIS Advedising, li� oca Raton, FL 11 -2012 Owm, D(,�rad Piml IIDRwre, FL - 9CY)9-2(I1O Ass(,,rdate editnii, Quad INTIL, Dou,,�11, F[ 2008,2011 PJews WSVN 7 sura IHiean,m kfle0skgr , Ni)rth Bay Oflage, FT 2018 Winner: BMW M Series Dealership Prornotion; Editing arid r -notion graphics, Boynton Beach Art Advisory Board Dellray Beach, PBA More SkiHs Afteir Effects,, Media, Encoder Key light . Prernnire Photoshop - 11kistrator - (-,aniera Or.,� Lighting , 3D Motion Trr4cking Videc, Copilot ProdUdS • Mac OS , Data0ay Templater Older Demo, Reel . hitps://y�:)uj!tu.lje/,,-B2ZO7C6L)AO Page 18 of 971 S�ta,nzione, Tamimv From: City Clerk Sent: Tuesday, January 31, 2023 L58 P,M To: De JeSUS, Mayllee; Stanzione, Tammy Subject- FW: Advisory Board AI)pointrnent application From,: al(eyandasia <noreply@123forrnbluilder,coni> Sent,, Tuesday, January 31, 2023 2:14 PM To: City Clerk <CityClerk@bbfI,us> Subject. Advisory Board Appointment appllication Today's date 011/31/2023 Name A'Keyah Wilfiarns �Phone number 561-377-5439 Address 1441 NW 1st CT Boynton Beach, FL 43,5 United States Email u ke kilcorr] Current occupation or, if Teacher re�tired, prior occupation Education Bachelor of Arts from Fordharn University Do you reside within, the Y, Boynton Beach City limits? Do you own/maniage a business N within City limits? I If "yes", name of busine,ss: Are you currenitiy serving on a No City board? Have you served on a City No board in the past? HREMNMZMr� Art Advisory Board Page 19 of 971 If appointed by the City Commission to serve as Board Yes Chair or Vice Chair are you willing to serve in this capacity? Personal Qualifications li am currently in my first year as the Theatire Program Diiirector at AtIlantic Cornirriunity High School. In just 4 months, we were able to grow, Our internal account by $7,000 through fundraising efforts and: hosting a public event. I absolutely love how you all have launched the art in public spaces, platform, as it truly makes a difference in the community; I Would like to find'/create ways to begin a siniflar initiative with perforinia nice art, I aim the lead actress in a feature film titled 'Me Little Me'which had its world premiere at SW 202111 ireceived my Bob in Acting from Fordham University in 2017, and have attended both Bak MSO ,A and Dreyfoos SOA for Tlieaitre, IFU extra sheet or resume., Certification 1, the applicant, hereby certify that the statements and answers provided herein are true and accurate. I understand that, if appointed, any false statements rnay be cause for removal from a, board. The rnessage has been sent frorn 108,255,55 252 (Unjited States), at 2023-01-31, 1 1150 on Chronle 109J)1,0'0 Entry 0: 586 Referrer: Ihs W itQqn h.o _qV . _ For Hc)W l�tjL &Zgo!gL1,!3,for rn buil der co yiL5,� 3,2 14ja dvis_cLa LI_j1p ppiq_&ji_t,zg[42_flig d— on Page 20 of 971 From,: pblvp2020 <norepl:lrbc 123formbuilcier.con,i> Sent: Tuesday, February 14, 20 1:14 IPM T : City Clerk Subject: Advisory Board Appointment apipfication Attachments: MasterFL--0,92022.docx Today's date 02/14/2023 Name JAMES CZlZ1K Phone number 732-29,9-6225 Address 705 SW'1THI STREET BOYNTON BEACH FLORIDA 33426 United States Email pblvp202O@grnail,corn Current occupation or, If retired, prior Operations, Manager / Project Manager occupation, Education Bachelors, United States MilitaryAcaderny (West Point), Are you a registered Yes voter? Do you reside within the Boynton Beach My Yes limilts? Do, you own/manage a business within City No limits? If "yes", name of business: Are y ui uirrenitly No serving on a City board? Have you served on, a No City board in the past? If "yes", which, board(s) and when? Have you ever been No convicted of a crime? if "yes", when andd whiere? Advisory Board Senior Advisory Board' If appointed by the City Commission to serve as, Yes, Board Chair or Vice 1 Page 21 of 971 gill i MEM 1 0 Personal Qualifications Account Management 1-1 Business DeMopment - Sales Results -oriented Sales / Account Management professional Ipossessinng more than 20 years of successful Business-to-BLIsiness consultative sales and relationship management experiences within the healthcare, pharrnaceutical, retail, insurance and technology services arena, Proven track record of success in, advising, senior level executives, on solutions -based buying decisions, Adept at developing and exeCtAting sales strategies, generating leads, bililding rapport, overcoming objections, and negotiating favorable pricing, Demonstrated abffity to generate new business and expand existing accounts within uiltra competitive markets Professional, President, Palm each Leisureville Cornmunifty Association, Boynton Beach, FL 33426 (2022 - Memberships, Present) Vice President, Palm each, Leisureville Community Association, Boynton Beach, PL 33426 (20201-2022) Chairman, Boynton each Veterans Council (2020 -Present) Public Affairs Officer, Arnedcan'Veterans (AMVETS) Post 88, Massapequa, NY 2012-2015) United States Army — Persian Gulf (Bronze Star), Coinbat Infantrytrian's lfadge, Honorable Discharge Peels free to attach/upload an extra hLttps. iL)Lri�L123forrwib,LlildercoriiLu)lg�aci dld.R!i ?fileid=�67998bbfdcc6347fLO,3tfc96e,52c5�2c JIL sheet or resume. Certification 1, the applicant, hereby certify that the statements and answers provided herein are true and accurate, I understand that, if appokited, any false statements may be cause for removal from a board, The message has been sent frorn 73,84,21.1,19 (United States) at 2023-02-14 13:14:23 on Chrome, 110-0,0,0 Entry ID: 590 Referrer• tiLtp,,j/Wwboyjjtn-b q_ P Forr'n Host ;hj_!.p.��Jj lg!jLTl.l,Z2f"oLrqbuilid!.Lr,,L '�L 321V do or )2g Lq� t ni P Q t -p iqajtion qL �g_L j)p.L Page 22 of 971 I i I IMP I I! 1=16=�Mi I' �i: I IN 11 1 MOM AcCOlUNT MANAG,EMiENT w BuSINEss DEVELOPMENT N SALES "Dilving business growth and strengthening client relationships through consultative partnering" Results-ioriented Sales I Account Managerrient professional possessing morei than, 20 years oi successful Business -to -Business consultati�e sales and relationship managernent experiences within the healthcare, pharmaceutical, reitail, insurance and technology servic:es arena. Proven track record of success in advising !senior level executives on soilutions,-basied buying decisions. Adept at devdoping and executing sales strategies,,, generating leads, building rapport, overcoming objiections, and negotiating favorabfe pricing. Demonstrated abi]ity to generate new business and expand existing accounts within ultra competitive imiarkets,; performing at levels that exceed business objectives arid sales goals, ,"Account Management vFinanc'W/Trend Analysis, VMS Office Suite Profit & Loss, (P&L) �/Negoitiation Skills v'Orade 11 V Competitor Analysis VROationship Mgmt, VSQL/HTML ,/Collaborative Solutions VBulsiness Improvement /AutoCAID 2000, V'Business Development /Budgets & Forecasting VIVIS Windows 20iOO Bachelor of Science - InternationalStudies, Engineering, and BehavioraiScienceis United States Mili'tary Academy Specialized Training, Certificate in, Project Management (Rutgers University) - Managing for Success (Sun Microsystems) - Empowered Teams Workshop - Critical Thinking and Decision Making for Leaders - Target Selection -Interviewing Skulls - COMMUnicating to Manage Performance - Legal Issues in Managing Employees . .. . ......... .. ... . . . PTOFESSIOiNAL EXPERIENCE Managed sales, account managers, and technical professionals; providing support on multiple information system implementation and sollutionis projects. Provided oversight of strategic planning, revenue generation, and expense reduction efforts. Created process maps and established baselines, goals, and they Performance Indicators (KPI) to, evaluate efficiency. Generated new business opportunities, and expanded; account penetration through collaboration with senior managers to develop consultative -based solutions for systern and process inefficiencies. Increased profit margins, through cross -promoting and up selling value added services, Delivered demonstrations and presentations to senior (level execufives, Wrote sales proposals, prepared quotes, and presented support material to create added value propositions, Enhanced custorner relationships through, implementing effective follow , up procedures for addressing client inquiries and ensuring efficient conimuNcation with cross -functional departments through regular contact and accurate documentation in proprietary Custorner Relationship Management (CIRM) databases. Page 23 of 971 Negotiated contract terms that included profitable pricing structures, service level agreements (SL s), and modifications necessitated by business fluctuations. OMMINE-JOIRMM-01=00 I Assumed complele i»rofit & Loss (P&L) accountability, Oversaw quality, standards ainid operating budgets,� measuring actual performance against projected forecasts and making business driven adjustrnents when needed, Developed business, p1lans, that out�l�ine milestones, objeictives, and' strategies for achieving project goials,. Managed multi-million dollar process and technology implernentatilon projects that have included software and process solutions, as well as information management Support, Conducted customer, needs analysis, delivered custom application enhancements, coordinated risk management planning, assisted with, vendor selection, and enis,ured client comprehension of the return on investment (ROI), mi Aligned project requirernents, with strategic objectives; maintaining cost within budget, ensuring adherence to contract requirements, assessing and tracking project performance, documenting processes,, and irnpiernenting plans for project progression. Directed and schedule the activities of project personnel; managing performance of direct reports through continuous training and support, team building, goal setting, and, motivafionW encouragement. Conducted personnel performance reviews, provided requisite training, and developed Standard Operating Procedures (SOP's) to support consistent performance and drive positive results. Analyzed financial reports ands improved net profits through oversight of spending approvals to reduce SG&A expenses,. Implemented cost control measures; optirnizing labor and non-huirrian capital related costs. Designedl and developed disaster recovery procedures; reviewing simulation testing and formulating pre-test objectives, Managed business recovery contracts and developed risk rnifigation measures to improve disaster recovery capabilities, Key Achievernents: Managed custonwr productivity in excess of 95% on metrics compliance — Iron Mountain, Implemented collections procedures; reducing DSO by 19% in the 1"" year — Iron Mountah"i Achieved 105%- 130% QTR over QTR growth, oil T&M published plan — Sun Microsystems Exceeded profit margin ,plan, 56%-77% Q TR over QTR — Sun Microsystems Negotiated additional billable services (<5%1) — MediServe and Still Microsystems President, Palim Beach LeisurevWe Community Association, Boy,intolin each, FL 33426 (2022- Present) Vice President, PaIrn Beach LeisurevMe Community Association, Boynton Beach, FL 3 426 (2020-2022) Chairman, Boynton Beach Veterans Cound (2020 -Present) Public Affairs Officer, American, Veterans (AMVETS) Post 88, Massapequa, NY 2012�-2015) NTO, I�#M- 2 Page 24 of 971 James W'. Cz'lz'l'k INSURANCE AGENT (Life, Accident and Health) : NYS ILicense # LA -1325394 - Combined Insurance & Pearl Carroll and Assodate sl 2014-2015 AREA CUSTOMER SERVICE MANAGER (NY METRO & PENNSYLVANIA) / MGR, ACCOUNT SERVICES (NY METRO+ ) -- Iron Mountain Nnforrnafion Sy tern 12009 - 20,12 PROJECT MANAGER - MediServe Information Systems � 2007 -200191 CUSTOMER SERVICE MANAGER - Sun Microsystems/Storage Techridogies 1:: 2003,- 2006 INDEPENDENT CONSULTANT - Hurrrcane Technologies/Vallus, Corporation 12002 - 2003 NRECTON of OPERATIONS - AlphaNet Solutions p 2001 - 2002 Professional 6ffiliation ,Preto grarn Management Institute - 167" Infantry Association - Annerican Legion (Honor Guard, Board of Directors, Public Affairs Officer, Serme Officer) - Knights, of Columbus 41i1 Degree - MV TS -Veterans of Foreign Weirs - Fralen'-wal Order of Eag)es United States Army - Persian Guff (Bronze Star), Combat Infantryman's B'adge, Honorable Discharge Page 25 of 971 From: City Clerk Sent: Friday, January 13, 2023 8:05 AM To: Stanzione, "I"wrimy Subject: FW- Advilsory Board Appointment application From: rvwright44 <nor eply@1123forryibulilder,corTi> Sent. ThUrsday, January 1.2, 2023 7:23 PM To: City Clerk <Ci::tyClerk@bbfl.us> Subject- Advisory Board AppointIffient application Today"s, date 01/12/2023 Name Reerw Gallagher Phone number 561-402-1201 Address, 7 Ripley way Boynton beach Fl 33426 United States Emai�l Lyw.Li& Lit544,LJp!TigH.corn Current occupation, or, if Cy be rsecu rity Senior E ngi nee r and M a riage ir retired, prior occupation Education Masters Degree in CyberSeWrity Are you a registered voter? Yes Do you reside within the Yes Boynton Beach City limits? Do you own/manage a business No, within City limits? Rup3mami'm �1- �� Are you c�urrently serving on, a Nloi City board? Haveyou served on a City No board in, the past? Have you ever been convicted No xf a crimie? If "yes", when, and where? Advisory Board Senior Advisory Board n Page 26 of 971 If appointed by the City Commission to serve as Board Yes, Chair or Vice Chair are you willing to serve in, this capacity? personal Qualifications My intent on being board mernber is to start educating arid pushing seniiors to, become more cyber aware. There are lots of scams and cirlirnes being committed onhne which seniors are being deceived andl defrauded out of their money, It's rny personal mission to educate and make aware as many seniors In south Florida as pos,s,iblle to the dangers of social engineering and online scams that plaque them: and their families out of h"om"es, money, and business. My personal qualifications for the, Senior Advisory board include being, a great communicator with compassionMaster Degree holder and a senior in may professional field of CyberseCUrity for almost 7 years. I have worked in various Industries excelling. Professional Memberships N/A Feel free to attach/upload an extra sheet or resume. Certification 1, the applicant, hereby certify that the statements and answers provided herein, are true and accurate. I understand that, it' aha pointed, any false staterneints may be cause for rernoval from a board, The message has been sent from 73,204.57'.242 (Urfltedl States), at 2023-01-12 191-23:15 on Chrome 1.08.0.5359.1.12 Entry ID: 583 referrer: L%p s,LlWyL vK.�oynrn�bg�gt. Form Most: h.t s n ii,ne - _jp_ :Lrwagi--t n 19 lmLlqi�kLm), foirm,123forrobuildc Page 27 of 971 Consent Agenda 2/21/2023 Requested Action by Commission: Approve a 7% increase (or $28,220.30) to the contract for services associated with the Landscape Maintenance Services contract for Medians and Right -of -Ways, Bid No. 033-2730-20/RW performed by Batallan Enterprises, Inc. dba Property Works. The contract will total $436,718.27 after the increase. Explanation of Request: In December 2020, the City Commission approved Resolution R20-145 awarding the contract for Landscape Maintenance Services for Medians and Right -of -Ways to Batallan Enterprises, Inc. dba Property Works (PW) in the amount of $408,147.92 annually. In March 2021 Commission approved a $95,000 increase to the annual expenditure (from $5,000 to $100,000 annually) for additional services on an as needed basis. The vendor is now requesting a 7% increase (an additional $28,220.30) to their Contract (see attachment 2 — Letter from PW requesting a CPI increase). Staff has verified that the Consumer Price Index of All Urban Consumers (CPI_U) for Miami -Fort Lauderdale -West Palm Beach rose 7.0 percent (all items except for food and energy) from June 2020 to June 2022. Staff reviewed the contract terms and conditions and based on the CPI -U, Staff supports the request to increase the contract pricing. How will this affect city programs or services? This additional funding will allow for continued maintenance services for the City's medians and rights-of-way. Fiscal Impact: The funding of this increase will be paid from the unused additional services account: # 001-2730-572-49-17. No other budget adjustments are required. Alternatives: Commission could elect not to approve the increase. If this option was chosen, the planned mulching and fertilization will not occur. Strategic Plan: Strategic Plan Application: Climate Action Application: Page 28 of 971 Is this a grant? Grant Amount: Attachments: Type AttachirTIENI'lt Description AttachirTIE)lllt 2 ... IFlVV I E)ttENr of IIREgLAE)St Page 29 of 971 propert Darks Wednesday, January 25, 2023 To whom it may concern, I would like to start off by thanking you for giving Property Works the opportunity to provide landscaping services for the city for these past few years. We value the partnership that we have created with Boynton Beach and truly enjoy working with your team. It is our understanding that the City has been very pleased with the quality of service we have provided over the past few years. We are excited and looking forward to continuing the partnership with the recent extension of our contract. As we are all aware, we have had massive inflation over the last couple of years! There are very few things, if any, that cost us less today than when we bid the contract. Again, as stated above we are looking forward to the continuation of our contract with the City. We are formally asking for your consideration in regards to an agreed upon 7% increase for our contract. Below you will find some support to just a few of the increased expenses we are incurring to perform on the said contract in an acceptable way. Fuel: Fuel costs have increased by roughly 35% in the past 3 years. Today's average price for regular unleaded fuel in Palm Beach County is $3.71 per gallon (AAA), while in January 2020, regular unleaded fuel in Florida was going for an average rate of $2.45 per gallon (US Energy Information Administration). The cost for 2 stroke fuel and oil has had a significant increase of 75% in the past year itself. Labor: Labor costs have increased in the time since we formulated our previous contract. In order to deliver the same high standard of work at all of our projects, we pay our employees above minimum wage. We also provide healthcare options, 401 K & 401 K matching, along with many other benefits so we can attract the highest caliber of quality workers. In the past year alone, our labor costs have had to increase by over 12%, and our healthcare costs have had to increase over 10%. Aside from this, workers compensation insurance rates have also increased by around 20%. Materials Many of the essential materials that we use on a daily basis as a part of lawn maintenance have increased significantly as well. In the past year, the cost of fertilizer, pest control, and weed control has increased by an average of over 30%. The cost of our weed killer went up about 350% from the beginning of our contract to now. The cost of maintaining our equipment to a standard that is safe to use has also increased by 15% since 2021 Insurance: In order to properly operate in our capacity as a facilities maintenance business, we must make sure that we are properly insured. Our rates in their entirety have increased. Our liability insurance rate has increased 25%. Our automobile insurance has also increased by over 50%. Our property insurance has increased by 100%. While there was not originally a CPI rate established in the original contract, the standard CPI in 2019 was at 255.658 points, and inflation was at 1.76 percent. In 2022, the CPI is at 296.171 points, and inflation is at 6.5 percent (Bureau of Labor Statistics). The expenses listed above are just some examples of the costs that go into the services that we provide to the City. Very few costs have increased slightly, most costs have increased dramatically in a very short period of time. It is Property Works' belief that increasing our contract price from the original contract is necessary for us to be able to continue to perform the work to not only our high standards, but also to the standards that you desire, and deserve. As a valued customer, we want nothing more than to provide services the Property Works way, and absolutely nothing less. Thank you for your consideration! Colin Yoskowitz- Contract Administrator Tampa Palm Beach Miami 3201 N Florida Ave. 1201 Roebuck Court 7915 N.W. 60th St. Tampa, FL 33603 West Palm Beach, FL 33401 Miami, FL 33166 Main 813.360.1092 Main 561.805.8687 Main 786.529.2309 C ne '„ rope " �fir iSfiiY 114, iY4x„ Page 30 of 971 Mn Consent Agenda 2/21/2023 Requested Action by Commission: Authorize a budget amendment to transfer funds in the amount of $222,184 from Utilities Capital I mprovement Fund Account 403-5000-535-64.15 project UC2101 to project UC2202. These funds will be used for the purchase for OT Cyber and Network Design Services for GrayMatter Systems, LLC, which was approved by Commission at the December 6, 2022 meeting. Explanation of Request: The Utilities Department operational technology (OT) network is currently using network infrastructure that is end -of -life. The operational Technology (OT) network supports the Utilities Supervisory Control and data Acquisition (SCADA) systems. The new network equipment, design, and configuration will ensure that the Utilities Department (OT) network complies with OT network best practices. This purchase includes the networking equipment, licensing, 5 -years hardware/software maintenance and support, and professional services to install and configure the equipment. This CI P budget amendment will provide funding in the appropriate account so this project can move forward. How will this affect city programs or services? The new network equipment will provide enhanced reliability, efficiency, and security to the Utilities Department's Operational Technology (OT) network. Fiscal Impact: The new network equipment will provide enhanced reliability, efficiency, and security to the Utilities Department's Operational Technology (OT) network. Alternatives: Strategic Plan: Strategic Plan Application: Climate Action Application: Is this a grant? Grant Amount: Page 31 of 971 Attachments: Type AttacftrTIENI'lt Description Exhibit Page 32 of 971 BUDGET ADJUSTMENT (TRANSFER) REQUEST Finance Department From: Utilities - CIP 403-5000-536.64-15 Page 1 of 1 Fiscal Period: FY: 22-23 Date: 114/2023 Please initiate this Budget Transfer for the Gray Matter new project numbe FIE 2023. Agenda Item Resolution No. R22-182 was COMMISSION Justification of Transfer: APPROVED on 12/06/2022 Pricing per Collier County Contract # 17-7189 email & Docs. Approvals: Department Head: Finance Budget Mgr: Finance Director: City Manager: 1/4/2023 9:16 AM 09Utllities FinancelBudget Transfers\Budget Transfer CIP Gray Matter UC220201-04-2023 Page 33 of 971 Bud' et Office Use OnlwW 9ocument Group # Posted By: * Budget Data Only * Expend as of: Adjustment Expenditures Project Present Increase Adjusted & Unencumbered Account Number Description Number Budget (Decrease) Budget Encumbrances Balance 403-5000-536.64-15 MACHINERY AND EQUIPMENT I COMPUTER EQUIPMENT 2C21 01 $240,000 -$222,184E $17,816 $17,816 403-5000-536.64-15 MACHINERY AND EQUIPMENT 1 COMPUTER EQUIPMENT UC2202 $167,600. $222,184 $389.794'. $4,049 $385,735 $0 $0 $0 $( $0 $0'' $0 $0 $0 $0 $0 $o $0 $0', $0 $o $0 $0 $o $o', $o Use Whole Dollars Only TOTALS $407,600''. $0 $407,6001, 14�1.tA ll $403,551 Please initiate this Budget Transfer for the Gray Matter new project numbe FIE 2023. Agenda Item Resolution No. R22-182 was COMMISSION Justification of Transfer: APPROVED on 12/06/2022 Pricing per Collier County Contract # 17-7189 email & Docs. Approvals: Department Head: Finance Budget Mgr: Finance Director: City Manager: 1/4/2023 9:16 AM 09Utllities FinancelBudget Transfers\Budget Transfer CIP Gray Matter UC220201-04-2023 Page 33 of 971 Bud' et Office Use OnlwW 9ocument Group # Posted By: AM EQUIPMEIG I C(MVER E9JIPMENT g'isca2 year; 2023 Gir p iwa giet r PAW, fi(A), ER Cmaii i q i ed 3,67:, 6DO, 00 ap Ba I'Anc v 4013,551.01 ... ,-A . . ..... . ...... ..... ....... .......... . .. ... . . mom SCADA ryberSecurity Balance Pr1:oJeirt Entry Required UC2101 ITS Hardware Up 24e,(M.00 UC2.26? SMA Cyber,Secu 163,552,01 . ...... ........ . .. ..................... Vendor indicates pending) Total Fype Req/1FIO P'r�oject Balance P0 230801. UC2202 4,048.99 Page 34 of 971 YM) MID sudgeL 3,67:, 6DO, 00 335,200.010 Flostpd al"Ount , IN OR Unposted amount .00 W3 Poste,d encumbrame ,W unposted ana;umbranco , IN N Total 4,eMg,99 4, 04S. 99 lialance 1.153, 551,01. 331,1,51.01 ryry!jrruo- �rYF" 3), 4209 "Wrie 1 00 +00 fljj�,10 3uly OR Be Rie� 21, August .00 M MJIR32 Septmbeir A0 00 Balance Pr1:oJeirt Entry Required UC2101 ITS Hardware Up 24e,(M.00 UC2.26? SMA Cyber,Secu 163,552,01 . ...... ........ . .. ..................... Vendor indicates pending) Total Fype Req/1FIO P'r�oject Balance P0 230801. UC2202 4,048.99 Page 34 of 971 40", V9 MACHIMERY AND EQUIPMENT / COMPUTER EQUIPMENT Fiscal year2023 Dr Hudget: 407, 600 80 Committed, 4,048.99 Balance: 403,551.01 UC2101 May .010 r.15 Hardware UjDdstes 09 June .00 Y M IFITID Bud&O� me,erdo.00 409,6IS5,00, posted almeml: "He 93,321 06 Unpristvd amtount '08 One Posted emmimbrancie 11 OE) W� Unposted enciumbrance ,89 go, I Ota 1, .00 83,321-06 11-alance 2,40,8M.00 326, 315 3, 94 AIJ 08 F May .010 .00 09 June .00 .0e A July .00 .00 11, Au6ust 00 .00 Soliptember 00 .00 ....... . . . . FIO 0 Vendor, Balance Project Entry Required [!Ar UCC 01 i,rS Hardware Up 240,900.00 I!,j UC2202 SCADA CyberSecu 1.163,5M.01 ven6m, indicates psanding) Type Rieq/PO ProJect PO 230801. 11,11C22012 Page 35 of 971 Total Balance 4,048.99 Prepared 1/04/23, 9:02:20 Account Balance Inq-(GMN200I1) Program HTDFTAL Screen detail for Program: GM GMN2001 User ID BYB2JSK 403-5000-536.64-15 ----------------------------------------------------------------------------------------------------------- Account information MACHINERY AND EQUIPMENT / COMPUTER EQUIPMENT Fiscal year: 2023 Dr Budget: 407,600.00 Committed: 4,048.99 Balance: 403,551.01 Project Data Project Entry Required UC2101 ITS Hardware Up 240,000.00 UC2202 SCADA CyberSecu 163,551.01 Account Balance by Period Cumulative Period/Month Actuals Totals 01 October .00 .00 02 November .00 .00 03 December .00 .00 04 January .00 .00 O5 February .00 .00 06 March .00 .00 07 April .00 .00 08 May .00 .00 09 June .00 .00 10 July .00 .00 11 August .00 .00 12 September .00 .00 Payment information Vendor (* indicates pending) Total Encumbrances PO # Vendor Balance Pre Encumbrances Type Req/PO Project Balance PO 230801 UC2202 4,048.99 Segment/Balance Details Fund 403 UTILITY GENERAL CIP FUND Department 50 Division 00 RESERVES Activity basic 53 PHYSICAL ENVIRONMENT Sub activity 6 WATER/SEWER COMB. SRVS Element 64 MACHINERY AND EQUIPMENT Object 15 COMPUTER EQUIPMENT Original Budget Revised Budget Current expenditures YTD expenditures Unposted expenditures Encumbrances Unposted encumbrances Pre -encumbrances Total Exp & Enc Unencumbered balance 240,000.00 407,600.00 .00 .00 .00 .00 .00 4,048.99 4,048.99 403,551.01 Page 36 of 971 1.0 % 99.0 % Page 1 C00111 Consent Agenda 2/21/2023 Requested Action by Commission: Proposed Resolution No. R23-017 -Approve an amendment to Resolution R23-005 by amending Exhibit 'A." The FY 2022-23 budget amendment submitted and approved on January 3, 2023 will adjust budgeted appropriations and revenue sources and provide spending authority for the General Government Capital Improvement Surtax Fund (303), the Utility Capital Improvement Fund (403), and the Golf Capital Improvement Fund (412). Explanation of Request: The FY 2022-23 Budget was adopted in September of 2022, before identifying all prior year Cl P purchase orders - this review occurs late October thru December. As such, the FY 2022-23 Adopted Budget for various Capital Improvement Projects and related accounts need to be adjusted to reflect outstanding FY21- 22 purchase order encumbrances. This type of budget amendment is part of the annual budget process. The Budget adjustment will increase the Fund's total appropriation which requires City Commission approval. The City's practice, for all City operating budgets and unspent appropriations are to be cancelled at the end of each fiscal year. Thus, the unspent monies become part of the fund balance of each fund. Most capital projects span multiple years and continue into the following year. Under best budgeting practices and governmental accounting standards, these funds should be re -appropriated to provide the continued spending authority for these projects. Accordingly, during FY 2022-23 budget modifications will be made to various Funds, see Exhibit A, staff is requesting Commission approval. • The Capital Improvement Fund will be amended for Fund 303 will be amended from $9,138,662 to $11,071,337 due to prior year encumbrances and available prior year project budgets. • The Water & Sewer Utility Capital Funds will be amended for Fund 403 from $47,127,575 to $53,471,211 due to prior year encumbrances and prior year available project budget. • The Golf Capital Improvement Fund will be amended for Fund 412 from $75,148 to $320,670 due to prior year encumbrances and prior year available project budget. How will this affect city programs or services? Approval of this amendment will allow the City to continue to follow appropriate budgeting and procurement practices while also allowing for planned projects to be funded across budget years. Fiscal Impact: See Exhibit A for the fund totals that were updated. Alternatives: Page 37 of 971 Strategic Plan: Strategic Plan Application: Climate Action Application: Is this a grant? Grant Amount: Attachments: Type D IRE)S()l� LA ti 0 111 D AddE)indUlirn Description RE)SOkAboin airTIENridillIg1:RE)S0k.J1b01['1 IR23 005 Exhibit "A" UpdatEd ArTIE)indirTIENI'lt F:::Y2022 23 IPLArcha SE) OrdE)r Exhibit Page 38 of 971 I RESOLUTION R23-017 2 3 A RESOLUTION OF THE CITY OF BOYNTON BEACH, FLORIDA, 4 AMENDING RESOLUTION R23-OOS WHICH WAS A BUDGET 5 AMENDMENT BY AMENDING EXHIBIT 'A'; PROVIDING FOR AN 6 EFFECTIVE DATE. 7 8 9 WHEREAS, Budget Amendment Resolution R23-005 was approved by the City 10 Commission on January 3, 2023; and 11 WHEREAS, certain figures in the exhibit attached to Resolution R23-005 required 12 correction and updating; and 13 WHEREAS, Exhibit "A" attached hereto contains the corrected figures; and 14 WHEREAS, accordingly staff is requesting Commission approval to amend Resolution 15 R23-005 which amended the FY 2022-23 budget as noted specifically on Exhibit A attached 16 hereto. 17 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF 18 BOYNTON BEACH, FLORIDA: 19 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as 20 being true and correct and are hereby made a specific part of this Resolution upon adoption 21 hereof. 22 Section 2. That the City Commission hereby approves amending Resolution R23- 23 005 which amends the appropriated Fiscal Year 2022-2023 budget, which will adjust 24 budgeted appropriations and revenue sources and provide spending authority for 25 Department or Fund Operating and Capital Budget as noted on Exhibit A attached hereto 26 and incorporated herein by reference. The funds which are amended are as follows: 27 S:ACA\RESO\Budget\2022 - 2023 BudgetTY22-23 Budget Aiuendiuent Resolution - (Aiuending R23-005).Docx Page 39 of 971 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 The Capital Improvement Fund will be amended for Fund 303 will be amended from $9,138,662 to $11,071,337 due to prior year encumbrances and available prior year project budgets. The Water & Sewer Utility Capital Funds will be amended for Fund 403 from $47,127,575 to $53,471,211 due to prior year encumbrances and prior year available project budget. The Golf Capital Improvement Fund will be amended for Fund 412 from $75,148 to $320,670 due to prior year encumbrances and prior year available project budget. Section 3. This Resolution shall become effective immediately upon passage. PASSED AND ADOPTED this 21 st day of February, 2023. ATTEST: Maylee De Jesus, MPA, MMC City Clerk (Corporate Seal) CITY OF BOYNTON BEACH, FLORIDA Mayor — Ty Penserga YES NO Vice Mayor —Angela Cruz Commissioner — Woodrow L. Hay Commissioner — Thomas Turkin Commissioner —Aimee Kelley VOTE Ty Penserga Mayor APPROVED AS TO FORM: Michael D. Cirullo, Jr. City Attorney S:ACA\RESO\Budget\2022 - 2023 Budget\FY22-23 Budget Aiuendiuent Resolution - (Aiuending R23-005).Docx Page 40 of 971 5:\Finance\Budget Amendments and Transfers\FY2022-23\Current Year Budget Amendment\FY22_23 Budget Adj for PY2022 POs EncumbrancesAmendment Wrksht (R23-005 rv) Page 41 of 971 1/5/20231:01 PM 1oft CITY OF BOYNTON BEACH Exhibit A CAPITAL APPROPRIATION AMENDMENTS BU DG ET YEAR 2022-23, Commission Meeting 01/17/23 2022/23 2022/23 PROJECT PO AMENDED Revised Amendment (1123-005) AMENDED NUMBER # BUDGET Revenue PO Accounts BUDGET Revision Comments CAPITAL IMPROVEMENT FUND 303-0000-389.91-00 FUND BALANCE APPROPRIATED 4,736,662 1,932,675 6,669,337 Adopted Fund Total Revenues 9,138,662 1,932,675 11,071,337 303-1214-580.63-00 IMPVTS OTHER THAN BLDGS. TS2101 210967 - 9,000 9,000 303-1214-580.63-00 IMPVTS OTHER THAN BLDGS. TS2101 221547 9,000 13,797 22,797 303-4101-580.62-01 BUILDING IMPROVEMENTS GG1901 211002 50,000 2,289 52,289 303-4101-580.62-01 BUILDING IMPROVEMENTS GG1901 220771 52,289 1,965 54,253 303-4101-580.64-15 COMPUTER EQUIPMENT IT2104 221320 181,004 1,730 182,734 303-4101-580.64-15 COMPUTER EQUIPMENT IT2202 221596 182,734 25,134 207,868 303-4101-580.64-15 COMPUTER EQUIPMENT IT2104 220656 207,868 6,223 214,091 303-4101-580.64-15 COMPUTER EQUIPMENT IT2201 221128 214,091 97,739 311,830 303-4101-580.64-18 AIR CONDITIONERS GG1004 221688 20,000 33,400 53,400 303-4101-580.64-18 AIR CONDITIONERS GG1004 221693 53,400 34,500 87,900 303-4103-580.63-15 GROUNDS IMPROVEMENTS GG1801 201340 - 46,749 46,749 303-4107-573.62-01 BUILDING IMPROVEMENTS GG2105 211381 - 2,220 2,220 303-4107-573.62-01 BUILDING IMPROVEMENTS GG2206 221675 2,220 13,665 15,885 303-4113-572.63-05 PARKS IMPROVEMENTS RP2221 221666 11,000 59,934 70,934 303-4113-572.63-05 PARKS IMPROVEMENTS RP2218 221784 70,934 300,000 370,934 303-4116-580.62-01 BUILDING IMPROVEMENTS GG2006 221378 5,000 8,976 13,976 303-4119-521.64-15 COMPUTER EQUIPMENT PD2202 221810 62,000 1,085 63,085 303-4126-522.62-01 BUILDING IMPROVEMENTS FA2204 221419 - 27,450 27,450 303-4126-522.62-01 BUILDING IMPROVEMENTS FA2203 221705 27,450 14,800 42,250 303-4126-522.64-18 AIR CONDITIONERS GH2210 220863 44,550 4,044 48,594 303-4127-522.64-15 COMPUTER EQUIPMENT FA2211 221584 - 25,309 25,309 303-4199-580.64-15 COMPUTER EQUIPMENT FA2210 221582 - 82,550 82,550 303-4209-572.63-05 PARKS IMPROVEMENTS RP2009 221608 3,000,000 19,429 3,019,429 303-4209-572.63-05 PARKS IMPROVEMENTS RP2016 200750 3,019,429 15,386 3,034,815 303-4209-572.63-05 PARKS IMPROVEMENTS RP2101 210467 3,034,815 25,110 3,059,925 303-4220-580.62-01 BUILDING IMPROVEMENTS RP1902 221131 - 12,230 12,230 303-4223-572.64-15 COMPUTER EQUIPMENT RP2206 221566 99,220 99,220 303-4233-572.63-05 PARKS IMPROVEMENTS RP2107 221729 - 15,930 15,930 303-4233-572.63-05 PARKS IMPROVEMENTS RP2107 221730 15,930 54,750 70,680 303-4233-572.63-05 PARKS IMPROVEMENTS RP2047 221759 70,680 123,417 194,097 303-4905-580.63-08 STREET IMPROVEMENTS CP0266 221662 2,000,000 10,340 2,010,340 303-4905-580.63-08 STREET IMPROVEMENTS CP0266 221708 2,010,340 13,563 2,023,903 303-4905-580.63-08 STREET IMPROVEMENTS CP0266 221709 2,023,903 44,522 2,068,424 303-4905-580.63-08 STREET IMPROVEMENTS CP0266 221823 2,068,424 166,570 2,234,994 303-4905-580.63-08 STREET IMPROVEMENTS CP0266 201117 2,234,994 25,550 2,260,544 303-4905-580.63-08 STREET IMPROVEMENTS CP0266 221831 2,260,544 3,265 2,263,809 303-4905-580.63-08 STREET IMPROVEMENTS CP0266 221654 2,263,809 287,861 2,551,670 303-4905-580.63-08 STREET IMPROVEMENTS TR2101 221654 2,551,670 200,000 2,751,670 303-4906-541.63-22 BRIDGE IMPROVEMENTS TR0903 221421 100,000 1,325 101,325 303-4906-541.63-22 BRIDGE IMPROVEMENTS TR0903 221792 101,325 1,648 102,973 Adopted Fund Total Expenses 9,138,662 1,932,675 11,071,337 Total updated 5:\Finance\Budget Amendments and Transfers\FY2022-23\Current Year Budget Amendment\FY22_23 Budget Adj for PY2022 POs EncumbrancesAmendment Wrksht (R23-005 rv) Page 41 of 971 1/5/20231:01 PM 1oft Adopted Fund Total Expenditures GOLF CIP FUND 412-0000-389.92-00 NET ASSETS APPROPR Adopted Fund Total Revenues 47,127,575 Revision Comments 6,343,636 53,471,211 Total updated (141,152) 245,670 104,518 75,148 245,670 320,818 412-4501-572.62-01 BUILDING IMPROVEMENTS GF2201 221551 75,000 Adopted Fund Total Expenditures 75,148 5:\Finance\Budget Amendments and Transfers\FY2022-23\Current Year Budget Amendment\FY22_23 Budget Adj for PY2022 POs EncumbrancesAmendment Wrksht (R23-005 rv) 245,670 320,670 245,670 320,818 Total revised Page 42 of 971 1/5/20231:01 PM 2 oft CITY OF BOYNTON BEACH Exhibit A CAPITAL APPROPRIATION AMENDMENTS BU DG ET YEAR 2022-23, Commission Meeting 01/17/23 2022/23 2022/23 PROJECT PO AMENDED Revised Amendment (1123-005) AMENDED NUMBER # BUDGET Revenue PO Accounts BUDGET UTILITY FUND CAPITAL IMPROVEMENT FUND 403-0000-389.92-00 NET ASSETS APPROPR 18,277,575 6,343,636 24,621,211 Adopted Fund Total Revenues 47,127,575 6,343,636 53,471,211 403-5000-533.65-02 R&R - WATER UC2102 211392 29,947,267 16,765 29,964,032 403-5000-533.65-02 R&R - WATER WT2202 221116 29,964,032 175,052 30,139,084 403-5000-533.65-02 R&R - WATER WTR127 221632 30,139,084 16,000 30,155,084 403-5000-533.65-02 R&R - WATER WTR075 220938 30,155,084 8,833 30,163,917 403-5000-533.65-02 R&R - WATER WT2102 211286 30,163,917 547 30,164,465 403-5000-533.65-02 R&R - WATER WT2103 221156 30,164,465 34,995 30,199,460 403-5000-533.65-02 R&R - WATER UC1802 220936 30,199,460 24,142 30,223,601 403-5000-533.65-02 R&R - WATER WT1802 221321 30,223,601 139,164 30,362,765 403-5000-533.65-02 R&R - WATER WTR127 221325 30,362,765 276,800 30,639,565 403-5000-533.65-02 R&R - WATER WTR127 221326 30,639,565 89,993 30,729,558 403-5000-533.65-02 R&R - WATER WTR020 190724 30,729,558 56,786 30,786,344 403-5000-533.65-02 R&R - WATER WT1902 191014 30,786,344 15,714 30,802,057 403-5000-533.65-02 R&R - WATER WT2008 210345 30,802,057 14,910 30,816,967 403-5000-533.65-02 R&R - WATER WT1605 210667 30,816,967 34,950 30,851,917 403-5000-533.65-02 R&R - WATER WT2008 210344 30,851,917 44,103 30,896,019 403-5000-533.65-02 R&R - WATER WTR105 221555 30,896,019 184,918 31,080,937 403-5000-533.65-02 R&R - WATER WT2103 221221 31,080,937 187,750 31,268,687 403-5000-533.65-02 R&R - WATER WT1802 211524 31,268,687 4,107 31,272,794 403-5000-533.65-02 R&R - WATER WT2102 221226 31,272,794 9,100 31,281,894 403-5000-533.65-02 R&R - WATER WT2102 220562 31,281,894 1,211 31,283,105 403-5000-533.65-02 R&R - WATER WT2102 221458 31,283,105 106,500 31,389,605 403-5000-533.65-02 R&R - WATER WT1802 221796 31,389,605 79,025 31,468,630 403-5000-533.65-02 R&R - WATER WTR105 221805 31,468,630 227,601 31,696,231 403-5000-533.65-02 R&R - WATER WT1802 221805 31,696,231 365,869 32,062,100 403-5000-533.65-02 R&R - WATER UC2103 210359 32,062,100 12,236 32,074,335 403-5000-533.65-02 R&R - WATER WTR060 221754 32,074,335 53,150 32,127,485 403-5000-533.65-02 R&R - WATER WT2003 221042 32,127,485 2,015 32,129,500 403-5000-533.65-02 R&R - WATER UC2203 221654 32,129,500 48,565 32,178,065 403-5000-533.65-02 R&R - WATER WT2003 210806 32,178,065 5,333 32,183,398 403-5000-533.65-02 R&R - WATER WT2103 221539 32,183,398 33,250 32,216,648 403-5000-533.65-02 R&R - WATER WT1902 221731 32,216,648 1,539,039 33,755,687 403-5000-533.65-02 R&R - WATER WT2008 221280 33,755,687 729,812 34,485,499 403-5000-533.65-02 R&R - WATER WT1605 221711 34,485,499 102,736 34,588,235 403-5000-535.65-04 R&R -SEWER SWR102 220411 10,008,842 812 10,009,654 403-5000-535.65-04 R&R -SEWER SWR064 201340 10,009,654 28,289 10,037,943 403-5000-535.65-04 R&R -SEWER SWR064 191121 10,037,943 14,504 10,052,447 403-5000-535.65-04 R&R -SEWER SWR102 220488 10,052,447 52,843 10,105,290 403-5000-535.65-04 R&R -SEWER SW2101 211027 10,105,290 18,557 10,123,848 403-5000-535.65-04 R&R -SEWER SW1801 220900 10,123,848 165,959 10,289,807 403-5000-535.65-04 R&R -SEWER UC2103 210359 10,289,807 886 10,290,693 403-5000-535.65-04 R&R -SEWER SW2202 221446 10,290,693 490,740 10,781,433 403-5000-535.65-04 R&R -SEWER UC2203 221654 10,781,433 9,680 10,791,113 403-5000-535.65-04 R&R -SEWER SWR102 211639 10,791,113 76,538 10,867,651 403-5000-536.31-90 OTHER PROFESSIONAL SRVS UC1804 201360 720,940 94,496 815,436 403-5000-538.65-09 R&R - STORMWATER UC2102 211392 4,992,926 95,618 5,088,544 403-5000-538.65-09 R&R - STORMWATER UC1802 220936 5,088,544 72,425 5,160,969 403-5000-538.65-09 R&R - STORMWATER STM031 220939 5,160,969 66,500 5,227,469 403-5000-538.65-09 R&R - STORMWATER UC2203 221654 5,227,469 460,955 5,688,424 403-5000-538.65-09 R&R - STORMWATER STM031 221122 5,688,424 18,953 5,707,376 403-5000-538.65-09 R&R - STORMWATER UC1802 191253 5,707,376 34,913 5,742,289 Adopted Fund Total Expenditures GOLF CIP FUND 412-0000-389.92-00 NET ASSETS APPROPR Adopted Fund Total Revenues 47,127,575 Revision Comments 6,343,636 53,471,211 Total updated (141,152) 245,670 104,518 75,148 245,670 320,818 412-4501-572.62-01 BUILDING IMPROVEMENTS GF2201 221551 75,000 Adopted Fund Total Expenditures 75,148 5:\Finance\Budget Amendments and Transfers\FY2022-23\Current Year Budget Amendment\FY22_23 Budget Adj for PY2022 POs EncumbrancesAmendment Wrksht (R23-005 rv) 245,670 320,670 245,670 320,818 Total revised Page 42 of 971 1/5/20231:01 PM 2 oft 1" Consent Agenda 2/21/2023 Requested Action by Commission: Proposed Resolution No. R23-018 - Approve the temporary lane closures in the 2000 Block of State Road 5 (Federal Hwy) - 700 feet of the right lane heading Northbound and 400 feet of the left lane heading Southbound on Tuesday, July 4, 2023 for the annual 4th of July event, and authorize the City Manager, or designee, to apply for the State permit for the temporary road closure. Explanation of Request: The closing of a state road requires a permit from the Florida Department of Transportation (FDOT) which must be requested by an authorized official of the City. The road closure will be from appro)amately 2:00 P.M. - 11:59 P.M., or until safe to reopen, to accommodate complimentary shuttle services for those desiring to attend the 4th of July event on Tuesday, July 4, 2023. How will this affect city programs or services? Temporary re-routing of traffic from 2:00 P.M.- 11:59 P.M. on Federal Highway. Fiscal Impact: Road Safe is a budgeted item within the Events Division. Alternatives: Do not approve the temporary road closure of the lanes in the 2000 Block of State Road 5 (Federal Highway) on Tuesday, July 4, 2023. Strategic Plan: Transportation and Mobility Strategic Plan Application: Temporary road closure of the lanes in the 2000 Block of State Road 5 (Federal Highway) on Tuesday, July 4, 2023 will provide a safe environment for entering and exiting the site and utilizing complimentary transportation services. Climate Action Application: Is this a grant? Grant Amount: Attachments: Type RE)Sa:allLAti0111 Description RE)SCallUltioin appiroviir:g ..Tbirnlpoi a i y IRoad Clla: SL. ir'E) for 4th Of JLAa y Il::.veinf Page 43 of 971 I RESOLUTION NO. R23 - 018 2 3 A RESOLUTION OF THE CITY OF BOYNTON BEACH, FLORIDA, 4 APPROVING AND AUTHORIZING THE TEMPORARY LANE 5 CLOSURES IN THE 2000 BLOCK OF STATE ROAD S (FEDERAL 6 HWY) - 700 FEET OF THE RIGHT LANE HEADING NORTHBOUND 7 AND 400 FEET OF THE LEFT LANE HEADING SOUTHBOUND ON 8 TUESDAY, JULY 4, 2023 FOR THE ANNUAL 4TH OF JULY EVENT, 9 AND AUTHORIZE THE CITY MANAGER, OR DESIGNEE, TO APPLY 10 FOR THE STATE PERMIT FOR THE TEMPORARY ROAD CLOSURE; 11 PROVIDING FOR EFFECTIVE DATE. 12 13 WHEREAS, the City of Boynton Beach's annual 4t" of July Celebration is scheduled to 14 be held on Tuesday, July 4, 2023; and 15 WHEREAS, in order to provide for the safety of the participants and citizens attending 16 the celebration a portion of State Road 5 being 700 feet of the right lane heading Northbound 17 and 400 feet of the left lane heading Southbound will be required to be closed beginning at 18 2:00 p.m. until 11:59 p.m.; and 19 WHEREAS, the Florida Department of Transportation requires the local government 20 to authorize all temporary road closures on state roadways; and 21 WHEREAS, the City Commission of the City of Boynton Beach desires to approve and 22 authorize the temporary lane closures in the 2000 Block of State Road 5 (Federal Hwy) - 700 23 feet of the right lane heading Northbound and 400 feet of the left lane heading Southbound 24 on Tuesday, July 4, 2023 for the annual 4th of July event; and 25 WHEREAS, the City Manager (or designee) is authorized to apply for the permit for 26 temporary closing of state roads for special events, pursuant to Chapter 14-65, Florida 27 Administrative Code, for said temporary closings. 28 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF 29 BOYNTON BEACH, FLORIDA, THAT: 30 Section 1. The foregoing "WHEREAS" clauses are true and correct and hereby 31 ratified and confirmed by the City Commission 32 Section 2. That the City Commission of the City of Boynton Beach approves and 33 authorizes the temporary lane closures in the 2000 Block of State Road 5 (Federal Hwy) - 700 S:ACA\RESO\Road Closings 4th of July (2023) - Reso.docx Page 44 of 971 34 feet of the right lane heading Northbound and 400 feet of the left lane heading Southbound 35 on Tuesday, July 4, 2023 for the annual 4th of July event. 36 Section 3. The City Manager (or designee) is hereby authorized to apply for 37 permits from the Florida Department of Transportation pursuant to Chapter 14-65, Florida 38 Administrative Code, for said temporary closings. 39 Section 4. That this Resolution will become effective immediately upon passage. 40 PASSED AND ADOPTED this 21 st day of February, 2023. 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 ATTEST: 60 61 62 Maylee De Jes6s, MPA, MMC 63 City Clerk 64 65 66 (Corporate Seal) 67 68 69 70 71 CITY OF BOYNTON BEACH, FLORIDA YES NO Mayor — Ty Penserga Vice Mayor —Angela Cruz Commissioner —Woodrow L. Hay Commissioner — Thomas Turkin Commissioner —Aimee Kelley S:ACA\RESO\Road Closings 4th of July (2023) - Reso.docx VOTE Ty Penserga Mayor APPROVED AS TO FORM: Michael D. Cirullo, Jr. City Attorney Page 45 of 971 6.E. Consent Agenda 2/21/2023 City of Boynton Beach w Agenda Item Request Form Commission Meeting Date: 2/21/2023 Requested Action by Commission: Accept the written report to the Commission for purchases over $10,000 for the month of January 2023 Explanation of Request: Per Ordinance No.01-66, Chapter 2, Section 2-56.1 Exceptions to competitive bidding, Paragraph b, which states: Further, the City Manager, or designee is authorized to execute a purchase order on behalf of the City for such purchases under the $49,999 bid threshold for personal property, commodities, and services, or $200,000 for construction. The City Manager shall file a written report with the City Commission at the second Commission meeting of each month listing the purchase orders approved by the City Manager, or designee. All backup documentation is available upon request. Below is a list of the purchases for January 2023. Oi,de, i # —Vendor. How will this affect city programs or services? Ordinance No.01-66, Chapter 2, Section 2-56.1 assists departments in timely procurement of commodities, services, and personal property. Administrative controls are in place with the development of a special processing form titled "Request for Purchases over $10,000" and each niirrhaca raniiact is raviawad And AnnrnvP_d by tha nP_nartmant nirarrtnr FlnAnrA nP_nArtmRnt And City KAAnanar nr Page 46 of 971 ............... '''''''''. ll ..,Amount . 230799 TRANE (WPB) $49,556.00 230800 J.C. WHITE ARCHETECTURAL INTERIOR PRODUCTS $18,490.94 230808 SOLID ROCK TECHNOLOGY INC. $20,000.00 230814 STRYKER MEDICAL $29,094.06 230817 BROADCAST SYSTEMS $11,740.06 230821 LAWMEN'S & SHOOTERS SUPPLY INC. $16,487.20 230839 EAGLE PAINTING $11,900.00 '230843 THE BELONY LAW GROUP $15,000.00 230849 LEADSONLI NE $13,233.00 '230860 FEDERAL EASTERN INT'L, LLC $11,520.00 230864 STEP CG, LLC $24,918.93 230881 SPI DR TECH INC $34,740.00 '230898 STI NGRAY CHEVROLET $46,453.00 '230900 JOHNSON CONTROLS FIRE PROTECTION $28,925.84 230912 DELL MARKETING $18,871.36 230913 CALVIN, GIORDANO&ASSOCIATES $38,310.00 230915 JOHNSON-DAVIS INC. $121,964.00 230916 CONCENTRA MEDICAL CENTERS $22,201.00 230917 ALLIGATORALLEY HARLEY-DAVIDSON $29,017.46 230921 CRYE PRECISION LLC $44,762.45 230922 ALAN JAY CHEVROLET $31,309.00 230925 FORTILINE WATERWORKS $13,899.94 How will this affect city programs or services? Ordinance No.01-66, Chapter 2, Section 2-56.1 assists departments in timely procurement of commodities, services, and personal property. Administrative controls are in place with the development of a special processing form titled "Request for Purchases over $10,000" and each niirrhaca raniiact is raviawad And AnnrnvP_d by tha nP_nartmant nirarrtnr FlnAnrA nP_nArtmRnt And City KAAnanar nr Page 46 of 971 V- ... ....,.. ..,M...,.,..- ............. -..., designee. Fiscal Impact: This Ordinance provides the impact of reducing paperwork by streamlining processes within the organization. This allows administration to maintain internal controls for these purchases, reduce the administrative overhead of processing for approval, and allow for making more timely purchases. Alternatives: Strategic Plan: Strategic Plan Application: Climate Action Application: Is this a grant? Grant Amount: Attachments: Type A tacIhir noirnt Description l:::1u ircltna.~ es ovoir $10,000 foir Jai nu airy 2023 Page 47 of 971 Page 48 of 971 CITY OF BOYNTON BEACH APPROVED REQUESTS FOR PURCHASES OVER $10,000 FOR JANUARY 2023 1. Vendor: TRANE (WPB) Purchase Amount: $49,556.00 Requesting Department: UTILITIES Contact Person: BRYAN HELLER Date: 1/3/2023 Brief Description of Purchase: CITY OF BOYNTON BEACH CENTRAL ENERGY PLANT. CLEAN TWO (2) DES COOLING TOWERS AT CENTRAL ENERGY PLANT. OUR EQUIPMENT IS CURRENTLY UNDER WARRANTY WITH TRANE. Source for Purchase: SINGLE SOURCE Fund Source: 401-2805-536.49-17 2. Vendor: J.C. WHITE ARCHITECTURAL INTERIOR PRODUCTS Purchase Amount: $18,490.94 Requesting Department: PUBLIC WORKS Contact Person: WESLEY NORWOOD Date: 1/3/2023 Brief Description of Purchase: MAUSOLEUM FURNITURE - BUFFET CREDENZA, SEAT SOFA, CUBE END TABLE. Source for Purchase: PIGGYBACK STATE OF FL CONTRACT Fund Source: 631-3110-539.64-02 #56120000 -19 -ACS 631-3110-539.52-20 631-3110-539.49-17 3. Vendor: ROCK SOLID TECHNOLOGY, INC. Purchase Amount: $20,000.00 Requesting Department: ITS Contact Person: FRED HARRIS Date: 1/5/2023 Brief Description of Purchase: PURCHASE OF REPLACEMENT MOBILE APPLICATION FOR CITIZEN ENGAGEMENT. CREATING SERVICE REQUEST AND WORK ORDER AUTOMATION THROUGH VENDOR SUPPORTED INTEGRATION WITH SUNGARD (NAVILINE) AND FUTURE ASSET MANAGEMENT AND CONTACT CENTER APPLICATION INTEGRATIONS. Source for Purchase: SOLE SOURCE Fund Source: 001-1510-513.46-91 4. Vendor: STRYKER MEDICAL Purchase Amount: $29,094.06 Requesting Department: FIRE Contact Person: CHIEF BRUDER Date: 1/10/2023 Brief Description of Purchase: EMS STRETCHER MAINTENANCE AND PURCHASES Source for Purchase: CONFIRMING Fund Source: 001-2210-522.52-66 5. Vendor: BROADCAST SYSTEMS Purchase Amount: $11,740.06 Requesting Department: ITS Contact Person: MICHAEL BENNETT Date: 1/10/2023 Brief Description of Purchase: INSTALLATION OF CONDUIT AND SHIELDING ETHERNET CABLING OF AMPHITHEATER AT CENTENNIAL PARK TO SUPPORT OUTDOOR WI -FI. Source for Purchase: GSA CONTRACT # GS-07F-173GA Fund Source: 303-4101-580.64-15 GG2207 6. Vendor: LAWMEN'S & SHOOTERS SUPPLY INC. Purchase Amount: $16,487.20 Requesting Department: POLICE Contact Person: SGT McDEAVITT Date: 1/10/2023 Brief Description of Purchase: ANNUAL TRAINING AMMUNITION FOR OFFICERS TRAINING ON AR15 PATROL RIFLES Source for Purchase: THREE QUOTES Fund Source: 001-2112-521.52-50 Page 48 of 971 7. Vendor: EAGLE PAINTING Purchase Amount: $11,900.00 Requesting Department: UTILITIES Contact Person: HOWARD KERR Date: 1/17/2023 Brief Description of Purchase: PAINTING FOR THE FRONT OF EAST WATER TREATMENT PLANT Source for Purchase: CITY OF BOYNTON BEACH CONTRACT Fund Source: 401-2811-536.49-1 #013251119 8. Vendor: THE BELONY LAW GROUP, PLLC Purchase Amount: $15,000.00 Requesting Department: HUMAN RESOURCES Contact Person: K. BIAZAR Date: 1/17/2023 Brief Description of Purchase: INVESTIGATION SERVICES FOR CURRENT INVESTIGATION Source for Purchase: SERVICE CONTRACT DATED 01/10/2023 Fund Source: 001-1610-513.49-17 9. Vendor: LEADSONLINE Purchase Amount: $13,233.00 Requesting Department: POLICE Contact Person: SOPHIA STEWART Date: 1/19/2023 Brief Description of Purchase: LEADS ON-LINE ALLOWS BBPD INVISTIGATIONS TO SHARE VITAL INFORMATION REGARDING COMMON SUSPECTS AND STOLEN PROPERTY THAT MAY TRAVEL THROUGHOUT THE REGION Source for Purchase: CONFIRMING Fund Source: 001-2112-521.46-91 10. Vendor: FEDERAL EASTERN INT'L, LLC Purchase Amount: $11,520.00 Requesting Department: POLICE Contact Person: SOPHIA STEWART Date: 1/19/2023 Brief Description of Purchase: SWAT RIFLE PLATES (24) NEED TO BE REPLACED. Source for Purchase: THREE QUOTES Fund Source: 001-2112-521.52-51 11. Vendor: STEP CG, LLC Purchase Amount: $24,918.93 Requesting Department: POLICE Contact Person: SOPHIA STEWART Date: 1/19/2023 Brief Description of Purchase: EXTREME NETWOK SWITCHES, NETWORKING APPLIANCES AND NETWORKING SOFTWARE THAT BBPD UTILIZES REQUIRE FIRMWARE AND OPERATING SYSTEM UPDATES TO ENSURE THEY ARE SECURE AND WORK WITH NEW HARDWARD AND SOFTWARE PLATFORMS. Source for Purchase: STATE OF FL CONTRACT # 43220000-NASPO-19-ACS Fund Source: 001-2112-521.46-20 12. Vendor: SPIDR TECH INC Purchase Amount: $34,740.00 Requesting Department: POLICE Contact Person: SOPHIA STEWART Date: 1/20/2023 Brief Description of Purchase: ANNUAL SUBSCRIPTION AND MAINTENANCE. HELPS LAW ENFORCEMENT AGENCIES LEVERAGE THEIR OWN DATA TO INCREASE EFFICIENCY. Source for Purchase: THREE YEAR SUBSCRIPTION AGREEMENT Fund Source: 001-2112-521.46-91 13. Vendor: STINGRAY CHEVROLET Purchase Amount: $46,453.00 Requesting Department: PUBLIC WORKS Contact Person: MARIO GUZMAN Date: 1/24/2023 Brief Description of Purchase: 2023 CHEVY TAHOE UTILITY VEHICLE FOR FIRE RESCUE DEPARTMENT Source for Purchase: STATE OF FL CONTRACT #FSA22-VEL30.0 Fund Source: 501-2516-519.64-33 14. Vendor: JOHNSON CONTROLS FIRE PROTECTION Purchase Amount: $28,925.84 Requesting Department: PUBLIC WORKS Contact Person: MARIO GUZMAN Date: 1/25/2023 Brief Description of Purchase: OUTSTANDING 20/21 INVOICES Source for Purchase: NJ PA CONTRACT #031517 -SGL Fund Source: 001-2511-519.49-17 Page 2 Page 49 of 971 15. Vendor: DELL MARKETING Purchase Amount: $18,871.36 Requesting Department: LIBRARY Contact Person: CRAIG CLARK Date: 1/25/2023 Brief Description of Purchase: REPLACE LIBRARY STAFF COMPUTERS Source for Purchase: CONTRACT # NCPA 01-42 Fund Source: 105-3221-513.64-15 105-3221-513.52-20 16. Vendor: CALVIN, GIORDANO & ASSOCIATES Purchase Amount: $38,310.00 Requesting Department: UTILITIES Contact Person: ANGELA PRYMAS Date: 1/26/2023 Brief Description of Purchase: EVALUATION OF LAKE SHORE CANAL CULVERT, INCLUDING SURVEYING AND ENGINEERING SERVICES TO DETERMINE IF EXISTING CULVERT IS IN ACCEPTABLE STRUCTURAL CONDITION AND TO EVALUATE THE FEASIBILITY OF REPLACING IT WITH EITHER A LARGER CULVERT OR BRIDGE. Source for Purchase: CONTRACT #046-2821-17 Fund Source: 403-5000-538.31-90 US2302 17. Vendor: JOHNSON-DAVIS INC. Purchase Amount: $121,964.00 Requesting Department: UTILITIES Contact Person: TREMAINE JOHNSON Date: 1/26/2023 Brief Description of Purchase: EMERGENCY SANITARY SEWER REPAIR AT BOYNTON BEACH BLVD AND LAWRENCE ROAD. INCLUDING INSTALLATION OF NEW MANHOLES AND GRAVITY SEWER PIPING TO A DEPTH OF 20 FEET BELOW EXISTING GRADE. Source for Purchase: CONTRACT #019-2821-19 Fund Source: 403-5000-535.65.04 SW2301 18. Vendor: CONCENTRA MEDICAL CENTERS Purchase Amount: $22,201.00 Requesting Department: FIRE Contact Person: CHIEF BRUDER Date: 1/27/2023 Brief Description of Purchase: NEW FIREFIGHTER PHYSICALS Source for Purchase: EXEMPT PER FLORIDA STATUTE 287.057 Fund Source: 001-2210-522.19-99 19. Vendor: ALLIGATOR ALLEY HARLEY-DAVIDSON Purchase Amount: $29,017.46 Requesting Department: PUBLIC WORKS Contact Person: RICK OPITZ Date: 1/27/2023 Brief Description of Purchase: 2023 HARLEY-DAVIDSON TO REPLACE VEHICLE #4026 DAMAGED IN ACCIDENT. Source for Purchase: FL STATE CONTRACT # FSA22-VEL 30.0 Fund Source: 522-1710-519.64-33 20. Vendor: CRYE PRECISION LLC Purchase Amount: $44,762.45 Requesting Department: POLICE Contact Person: STEVE BURDELSKI Date: 1/27/2023 Brief Description of Purchase: REPLACEMENT OF SWAT VESTS THAT ARE ABOUT TO EXPIRE. Source for Purchase: THREE QUOTES Fund Source: 001-2112-521.52-51 21. Vendor: ALAN JAY CHEVROLET Purchase Amount: $31,309.00 Requesting Department: PUBLIC WORKS Contact Person: RICK OPITZ Date: 1/27/2023 Brief Description of Purchase: 2023 TOYOTA RAV4 MODEL 4435 TO REPLACE VEHICLE #849 - FIRE DEPARTMENT Source for Purchase: SOURCEWELL CONTRACT #091521 -NAF Fund Source: 501-2516-519.64-33 22. Vendor: FORTUNE WATERWORKS Purchase Amount: $13,899.94 Requesting Department: WAREHOUSE Contact Person: JEN PACIELLO Date: 1/27/2023 Brief Description of Purchase: WAREHOUSE STOCK. SUPPLIES FOR DRAINAGE IMPROVEMENT PROJECTS. Source for Purchase: THREE QUOTES Fund Source: 401-2824-536.52-33 Page 3 Page 50 of 971 6. F. Consent Agenda 2/21/2023 Requested Action by Commission: Approve the one-year extension for RFPs/Bids and/ or piggy -backs for the procurement of services and/or commodities under $100,000 as described in the written report for February 21, 2023 - "Request for Extensions and/or Piggybacks." Explanation of Request: As required, the Finance/Procurement Department submits requests for award to the Commission; requests for approval to enter into contracts and agreements as the result of formal solicitations; and to piggy -back governmental contracts. Options to extend or renew are noted in the "Agenda Request Item" presented to Commission as part of the initial approval process. Procurement seeks to provide an accurate and efficient method to keep the Commission informed of pending renewals and the anticipated expenditure by reducing the paperwork of processing each renewal and/or extension individually and summarizing the information in a monthly report (as required). VENDOR(S) Advanced Generator Sales and Services, Inc. DESCRIPTION OF SOLICITATION RENEWAL AMOUNT SOLICITATION NUMBER TERM Annual Diesel / Propane Generator and COBB Bid No. March 16, 2023 Estimated By -Pass Pump Maintenance and 003-2821- - March 15, Expenditure Repair 21/RW 2024 $90,000 How will this affect city programs or services? This renewal report will be used for those solicitations, contracts/agreements and piggy -backs that are renewed/extended with the same terms and conditions and pricing as the initial award. Fiscal Impact: Funds have been budgeted under line items as noted on the attached report. Alternatives: Not approve renewals and require new solicitations to be issued. Strategic Plan: Strategic Plan Application: Climate Action Application: Is this a grant? Page 51 of 971 Grant Amount: Attachments: Type D AttacftrTIENI'lt D AttacftrTIENI'lt Description Bid EAE)insioins aind Fliggy BackS UlirldE�Iir' $100,000 IRENIIE)W,-'.Ill IIl['ItE)ir'E)St I E)ttENr Adv,,.-,.iinC2,d (3)ENIIENrator Say E)S & SE)irviCE)S, II inc. 2023 2024 Page 52 of 971 RE CITY OF BOYNTON BEACH REQUESTS FOR BID EXTENSIONS AND PIGGY -BACKS UNDER $100,000 February 21, 2023 REQUESTING DEPARTMENT: UTILITIES DEPARTMENT CONTACT: Tremaine Johnson, Manager Field Operations TERM: March 16, 2023, to March 15, 2024 SOURCE FOR PURCHASE: City of Boynton Beach Bid No. 003-2821-21/RW ACCOUNT NUMBER: 401-2816-536.46-20 VENDOR(S): Advanced Generator Sales & Services, Inc. ANNUAL ESTIMATE: $90,000 DESCRIPTION: On March 16, 2021, City Commission approved the award and authorized the City Manager to sign the Agreement Resolution R21-030, between the City of Boynton Beach and Advanced Generator Sales and Services, Inc. of Royal Palm Beach, FL for the Diesel / Propane Generator and By -Pass Pump Maintenance and Repair Services. The initial Agreement period was for two (2) years with the option to renew for three (3) additional one-year renewals. The vendor has agreed to renew the Agreement for the 1St one-year renewal term with the same terms, conditions, and pricing. The City of Finance/Procurement Services 100 K Ocean Avenue Boynton Beach, FL 33435 P.O. Box 310 Boonton Beach, Florida 33425-0310 Telephone Na (561) 742-6310 IAX (561) 742-6316 January 30, 2023 Richard Cordis, President Advanced Generator Sales & Services, Inc. 12351 59th Street N Boynton Beach, FL 33435 VIA EMAIL TRANSMITTAL TO ��,a6^� ch. r,�ik; as tt,iet BID: Diesel/Propane Generator and By -Pass Pump Maintenance and Repair BID No.: 003-2821-21/RW CURRENT AGREEMENT TERM: MARCH 16,2021— MARCH 15, 2023 Dear Mr. Johnson: The current term with Advanced Generator Sales & Services, Inc. for Diesel/Propane Generator and By - Pass Pump Maintenance and Repair expires March 15, 2023. The contract allows for three (3) one-year renewals. The City of Boynton Beach would like to exercise the option to renew for its 1 St renewal term with the same terms, conditions, and pricing. Please indicate your response on the following page and return it to Procurement Services via email to I,IL�) )„(c(>t P�°i,G�w � at your earliest convenience. If you should have any questions, please do not hesitate to contact Taralyn Pratt, Contract Administrator at (561) 742-6308. Sincerely, Mara Frederiksen Director of Financial Services Page 54 of 971 Cc: Tremaine Johnson, Manager, Field Operations, Boynton Beach Utilities Melissa Roberts, Contract Coordinator, Boynton Beach Utilities E]January 30, 2023 BID: DIESEL/PROPANE GENERATOR AND BY-PASS PUMP MAINTENANCE AND REPAIR BID No.: 003-2821-21/RW Agreement between the CITY OF BOYNTON BEACH and Advanced Generator Sales & Services, Inc. AGREEMENT RENEWAL TERM: March 16, 2023 — March 15, 2024 Yes, I agree to renew the existing agreement under the same terms and conditions for an additional one-year term. No, I do not wish to renew the bid for the following reason(s) ADVANCED GENERATOR SALES & SERVICES, INC. NAME OF COMPANY ro i'Ag AM Ccadi '.5 NAME OF REPRESENTATIVE (please print) DATE ('11/v eyf E-MAIL U_ ® SIGNATURE TITLE (AREA CODE) TELEPHONE NUMBER America's Gateway to the Gulf Stream Page 55 of 971 6.G. Consent Agenda 2/21/2023 Requested Action by Commission: Approve minutes from the February 7, 2023 City Commission Meeting. Explanation of Request: The City Commission met on February 7, 2023 and minutes were prepared from the notes taken at the meeting. The Florida Statutes provide that minutes of all Commission meetings be prepared, approved and maintained in the records of the City of Boynton Beach. How will this affect city programs or services? A record of the actions taken by the City Commission will be maintained as a permanent record. Fiscal Impact: There is no fiscal impact to the budget from this item. Alternatives: Approve, amend and approve, or do not approve the minutes. Strategic Plan: Building Wealth in the Community Strategic Plan Application: Climate Action Application: Is this a grant? Grant Amount: Attachments: Type Description 1['1LAtE)S Coirnirnia:>sioin I E)E)tiir':g I li1r'1LAtEss 02... 7...2023 Page 56 of 971 Minutes of the City Commission Meeting Held Online Via the GoToWebinar Platform and In -Person at the City Hall Commission Chambers 100 East Ocean Avenue, Boynton Beach, Florida On Tuesday, February 7, 2023, at 6:00 P.M. Present: Mayor Ty Penserga Vice Mayor Angela Cruz Commissioner Woodrow L. Hay Commissioner Thomas Turkin Commissioner Aimee Kelley 1. Agenda Items A. Call to Order - Mayor Ty Penserga Daniel Dugger City Manager Sean Swartz, Assistant City Attorney Maylee De Jesus, City Clerk Mayor Penserga called the meeting to order at 6:03 P.M. Roll Call City Clerk Maylee De Jesus called the roll. A quorum was present. Invocation by Pastor Tim McNeil, St. John Missionary Baptist Church Invocation was given by Pastor Tim McNeil. Pledge of Allegiance to the Flag led by Commissioner Thomas Turkin Commissioner Turkin led the Pledge of Allegiance to the Flag. Agenda Approval: Additions, Deletions, Corrections Commissioner Turkin requested to add the following to Future Agenda Items: Staff to research reducing or waiver the arts impact fee for small businesses; changing minimum requirements for traffic studies; update for speedbumps for multiple locations; proposed business where the old Toys R Us was located; efforts to bring more jobs to the City. Commissioner Kelley requested to add an EcoPark update to Future Agenda Items. Motion: Commissioner Turkin moved to approve the agenda, as amended. Commissioner Hay seconded the motion. The motion passed unanimously. 2. Other Page 57 of 971 Meeting Minutes City Commission Meeting Boynton Beach, FL February 7, 2023 A. Informational items by the Members of the City Commission. Vice Mayor Cruz and Commissioners Kelley and Turkin had no disclosures. Commissioner Hay disclosed that he attended the opening of the Neuro Behavioral Hospital, Kinetic Arts exhibits, and the First Friday Concert. He stated that he also attended a community discussion at Sara Sims park. He acknowledged Black History Month and provided historical background. He encouraged everyone to celebrate Black History Month. Mayor Penserga acknowledged Glenn Weiss, his team, and the Arts Advisory Board for making the Kinetic Arts Event a success. He said that a local business owner shared that they had their highest -grossing day, due to the event. He announced that the Youth Enrichment Association for Academics and Athletics and has been awarded a $250K grant for athletic field refurbishments, which will be a part of a park improvement project. 3. Announcements, Community and Special Events And Presentations A. Mayor and Commission to recognize the Boynton Beach Bulldogs 11 U Youth Tackle Football Team for winning the Battle Youth National Championship and the 7U Cheerleaders for winning first place in the Grand Championship at the American Youth League Cheer Competition. Mayor Penserga recognized the Boynton Beach Bulldogs 11 U Youth Tackle Football Team and 7U Cheerleaders. Coach Max Elwell said that he appreciated what the City has done to help the Bulldogs. Coach Arius Constant acknowledged the players and noted how hard they work. He encouraged everyone to come out and watch a game. Commissioner Hay congratulated the Bulldogs and stated that he has been to many of the games. He said that he used to coach the Rams and that they are doing an excellent job working with the kids. B. Mayor and Commission to recognize the Boynton Beach Fire Fighters who won first place in the Rapid Intervention Team Competition at the Fire Rescue East Conference in Daytona in January 2023. Mayor Penserga recognized the Boynton Beach Fire Fighters for winning first place in the Rapid Intervention Team Competition at the Fire Rescue East Conference in Daytona. He named the members of the team. Chief Bruder stated that the blessing is seeing men and women, who risk their lives every Page 58 of 971 Meeting Minutes City Commission Meeting Boynton Beach, FL February 7, 2023 day, out in their community doing more than what is required. Chief Oxendine thanked the City for congratulating them, and he explained what the competition is, and what they go through. He said that to win something like this is a testament of the training that they do across the department. He read a report of what happened to a Fire Fighter that they honored, because he passed away while on the job. C. Mayor and Commission to recognize Alpha Kappa Alpha Sorority, Inc. Xi Pi Omega Chapter for 40 years of dedicated service within the City of Boynton Beach community. Commissioner Hay recognized the Alpha Kappa Alpha Sorority, Inc. Xi Pi Omega Chapter. The Commission presented the certificate to the Chapter. Duan Jackson Clayton thanked the Commission for the recognition and gave a history of their Chapter. She announced different events that they assist with and mentioned an upcoming awards event. D. Hear State of Education report from District 4 School Board Member Erica Whitfield and Edwin Ferguson. Ms. Whitfield presented her State of Education Report and discussed the following: their mission; core belief; score increases and decrease for schools in Boynton Beach; impacted school subjects such as science; decrease in school suspensions; advanced placement; and mental health impacts. Mr. Ferguson stated that Boynton Beach was one of the highest cities that voted for him. He thanked the Commissioners for their $100K to each school, and said that they will have a plan ahead of time for spending that money. He spoke about the different subjects passing rates in schools either decreasing or increasing; and the different schools scores and their increase in performances. He spoke about enhancing their security measures in the schools. Ms. Whitfield asked that the Commission come and be recognized at a School Board Meeting. Commissioner Kelley thanked them for coming and asked about the status of ensuring that there is access to the internet. Ms. Whitfield thanked the City for giving money towards helping out with increasing internet in the City. She explained what the money is being used towards to increase the internet access. Commissioner Turkin stated that he would like to sit with Mr. Ferguson about the Forest Park Elementary School. 3 Page 59 of 971 Meeting Minutes City Commission Meeting Boynton Beach, FL February 7, 2023 Commissioner Hay asked what challenges the school board is seeing. Ms. Whitfield spoke about Boynton Beach High School and people not wanting to go there. She noted that there is more work that needs to be done for this school. Commissioner Hay spoke about marketing what the schools in the area have, such as the planetarium. Mr. Ferguson stated that this district must be competitive, so the schools must prove what they offer. He spoke about needing more help with students to be kindergarten ready, so they can be ahead of the curve. He said that he would like to have more collaboration with the municipalities to help with this. Mayor Penserga stated that there are a lot of low income and homeless children and asked what the school district is doing to help those students. Ms. Whitfield explained what they do to help the homeless students. She mentioned the different employees who are helping out with the homeless children. She spoke about the emergency housing in the community and the number of kids that are living in vehicles. Mr. Ferguson spoke about a meeting that they will be having to discuss the topic. He congratulated Ms. Nancy Robinson, Principal at Forest Park Elementary School, on her upcoming retirement. E. Proclaim February 11-17, 2022, as 2-1-1 Awareness Week. Donald Earl, 211's Director of Operations, will be accepting the proclamation. Mayor Penserga read the proclamation into the record. Mr. Earl accepted the proclamation. He stated that 211 is the only helpline that is 24/7. He explained what 211 assists with, and how many Boynton Beach residents they have helped out. F. Announce the last Oceanfront Bark of the 2022-2023 season. The event is being held on Saturday, February 18, 2023, from 9:00 AM to 12:00 PM, at Oceanfront Park located at 6415 N. Ocean Blvd. This is a free event for all well behaved, licensed dogs and their owners to "paw-ty" on the beach. Dogs will be allowed off leash in a designated fenced area. Parking is free during Oceanfront Bark for all beach patrons from 9:00 AM to 12:00 PM. Mayor Penserga announced the last Oceanfront Bark Event. G. Announce the 2023 Joe DiMaggio Children's Health Specialty Center "Magic Wheels" and Special Deals Inclusion Resource Fair on Friday, February 10th Page 60 of 971 Meeting Minutes City Commission Meeting Boynton Beach, FL February 7, 2023 from 5:00 PM to 8:00 PM at the Boynton Beach Arts & Cultural Center located at 125 E. Ocean Avenue. This is a free event for the entire family with inclusion resource information, vendors, music, performances, and the "Magic Wheels" unveiling. This year's recipient is 11 -year-old Giovanni and the theme of the Magic Wheel will be unveiled at the event. On Saturday, February 11 at 7:30 AM, the Greater Boynton Beach Foundation will host the 11th Annual Barrier Free 5K at Barrier Free Park located at 3111 S. Congress Avenue. For more information please visit http://barrierfree5k. pbrace.com/ Mayor Penserga announced the 2023 Joe DiMaggio Children's Health Specialty Center "Magic Wheels" and Special Deals Inclusion Resource Fair. H. Announce the Gold Coast Band's "Music Making America" concert at First Baptist Church located at 301 North Seacrest Blvd. on Sunday, February 19, 2023 at 3:00 PM. Admission is $10.00 for adults and free for children 12 and under. Tickets are available to purchase online at www.goldcoastband.org or at the door on the day of the concert. Mayor Penserga announced the Gold Coast Band's "Music Making America" concert at First Baptist Church. 4. Public Audience Individual Speakers Will Be Limited To 3 Minute Presentations (at the discretion of the Chair, this 3 -minute allowance may need to be adjusted depending on the level of business coming before the City Commission) Mayor Penserga stated that if residents are here to speak on the three ordinances, there are no public comments at that time, so they could use this time to speak on it, and will have the chance to speak on it at second reading. Susan Oyer stated that she is looking forward to getting input on the White Roof Project. She spoke about changing the street names, especially where there are multiple similar street names. Karen Ho stated that her commercial house was stolen from her by the City of Boynton Beach. She read from a transcript regarding the case, and spoke about the history of her problem. Harry Woodworth stated that he went to the P&D Meeting last night and said that it is a professionally run meeting. He mentioned that there were a lot of presentations last night. He spoke about the giant housing project being proposed in downtown and said that is not what this City was looking for originally in a town square. Page 61 of 971 Meeting Minutes City Commission Meeting Boynton Beach, FL February 7, 2023 Marsha Levine thanked everyone that attends the meetings. She said that she is here to represent the Senior Advisory Board (SAB), and she stated what their mission is. She mentioned that they are a small and mighty board, and spoke about their Senior Resource List. Thomas Thebo, AKA Nature, displayed proposals to the dais. He spoke about being in harmony with nature. He proposed a design for all of mankind. Sandra Watson, Chair of SAB, spoke about the collaboration between SAB and the Delray Beach Art Garage. She described the process of free tickets she has for seniors in the City. Robert Cannon spoke about Boynton Beach improving and it still being a livable City. He asked the Commission not to make things worse and noted that they do not need to accept the downtown proposals, because it will make it an unlivable City. Linda Dixon stated that she is here on behalf of the Girl Scouts Troop 25514, and they are asking for a donation. The group of girls spoke about what the donation will help out with. They said that they would like to donate girl scout cookies to non-profit organization, to send out in care packages. Mayor Penserga asked that they leave their contact information with Eleanor. Vice Mayor Cruz said that she is proud of the girls, and she would like to provide some community support funds towards the girls, and they will do what they can to support them. Steve Overture spoke about developments that were built in the past, and about density and height of buildings. Cindy Falco Di Corrado stated that she was called a name last week and that it should have been addressed. She showed a symbol and said that she wants that painted on the road, and explained what it means. She asked for her religion to be respected and asked how she can get her project done. She spoke about the LGBTQ+ flag on the road and how much has been spent on that flag. She referenced the minutes and said that there is information missing. Neil Richardson stated that he has been waiting patiently for Boynton Beach to figure out what to build on this property. He said that the residents of SE 2nd Avenue are disappointed and they need to figure out what they are going to do. Barbara Ready stated that she chairs the Historic Resources Preservation Board (NRPB) and she is the First Vice President and Programming Chair of the Historical Society and spoke about a program coming up regarding Florida's underground railroad. She said that she is concerned about the development that is being proposed for the downtown. She commented that we do not need apartments, because people are not going to come here for that. Page 62 of 971 Meeting Minutes City Commission Meeting Boynton Beach, FL February 7, 2023 Mark Myer stated that he is the President of Inca and spoke about the reduced frontage changes and inconsistencies. He spoke about the workforce housing amendment concerns too. Bradley Miller, Urban Design Studio, representing Time Equities, stated that from the commercial standpoint, they have listened, heard, talked, and they have already started talking about increasing to 70% commercial space through their plans. He stated that it is going from 62 units per acre to 62.5 units per acre. He said that staff is doing a wonderful job with workforce housing. Robert Singer, with Time Equities, spoke about workforce housing and their proposal. He said that they hear the residents and Commission and they want to deliver what the City wants. He mentioned that they will be forced to reduce their residential units on the ground floor. He commented that two of the ordinances are important, for the deal they currently have. Ernest Mignoli stated that he thinks that they are going to lose their building and the building next door because of the code violations. He said that the City does not do anything about it. He talked about the Special Magistrate meetings. He said that there are two cases against him, and about employees making complaints about him. No virtual comments. 5. Administrative A. Appoint eligible members of the community to serve in vacant positions on City Advisory Boards. Motion: Vice Mayor Cruz moved to table the Senior Advisory Board appointment. Commissioner Hay seconded the motion. The motion passed unanimously. Mayor Penserga mentioned the openings in different Boards that are available. Commissioner Turkin stated that we should not delay appointing someone because of political reasons. He asked for the Clerk's Office to check if there is another position available, because it was announced at last night's P&D Meeting that someone resigned. Assistant City Attorney Sean Swartz said that if a resignation of a position is confirmed then the position would be available. City Clerk De Jes6s further explained the resignation process. Motion: Commissioner Turkin moved to appoint William Cwynar to the Alternate position on the Page 63 of 971 Meeting Minutes City Commission Meeting Boynton Beach, FL February 7, 2023 Planning and Development Board. Commissioner Kelley seconded the motion. The motion passed unanimously. B. Continue discussion on rescheduling the Tuesday, March 7, 2023 Commission Meeting to Thursday, March 9, 2023 due to a scheduling conflict with Palm Beach County Days taking place March 7-8, 2023. Motion: Commissioner Hay moved to reschedule the Tuesday, March 7, 2023 Commission Meeting to Thursday, March 9, 2023. Commissioner Turkin seconded the motion. City Manager Dugger stated that you usually get a day prior and after for travel. He stated another alternate date is March 13th but noted that the City Clerk will have an early day the next day, due to the election. Mayor Penserga said that it is impractical to reschedule to March 13th since there are two people on the Board that are up for election. Motion: Commissioner Hay motioned to change the Tuesday, March 7, 2023 Commission Meeting to Thursday, March 9, 2023. Commissioner Turkin seconded the motion. The motion passed unanimously. 6. Consent Agenda A. Proposed Resolution No. R23-013 - Amend the FY 2022-2023 budget to adjust budgeted appropriations and revenue sources in order to revise the spending authority for the General Fund Special Events, Marketing Department and Public Information Department into three separate divisions, and the Building Fund (130) will also be amended for procurement of additional vehicles. B. Proposed Resolution No. R23-014- Approve and authorize the City Manager to sign the Urban Search and Rescue grant agreement between the State of Florida, Division of Emergency Management and the City of Boynton Beach for the Urban Search and Rescue Grant. C. Proposed Resolution No. R23-015 - Authorize the City Manager to sign Agreement with Property Registration Champions, LLC., dba PROCHAMPS for registration and monitoring services based on the Request for Quote No. DEV23-021 R Administrator of Record for Abandoned, Foreclosed, Vacant Properties within the City. D. Approve the purchase of site furnishings for Ocean Front Park from Upbeat Site Furnishings, an Anova Company, as a sole source vendor. The estimated expenditure is $67,143.96. ." Page 64 of 971 Meeting Minutes City Commission Meeting Boynton Beach, FL February 7, 2023 E. Legal Expenses - December 2022 - Information at the request of the City Commission. No action required. F. Approve change orders to purchase 2023 vehicles from Duval Ford. These purchases were previously approved by Commission for the purchase of 2022 model vehicles that have been discontinued. G. Approve minutes from the January 17, 2023 City Commission Meeting. Motion: Vice Mayor Cruz moved to approve the consent agenda. Commissioner Kelley seconded the motion. The motion passed unanimously. 7. Consent Bids and Purchases over $100,000 A. Proposed Resolution No. R23-016- Approve utilizing GSA contract GS- O7F-173GA and Authorize the City Manager to sign an agreement with Broadcast Systems Inc of Pompano Beach, FL. for the purchase of IT services for support and maintenance for Citywide cameras, access control, Real Time Crime Center technology and Fire Station 2, 3, 4, 5 - Cameras CIP Project from Broadcast Systems, in the amount of up to $211,635.00. B. Approve the one-year extension for RFPs/Bids and/ or piggy -backs for the procurement of services and/or commodities over $100,000 as described in the written report for February 7, 2023- "Request for Extensions and/or Piggybacks." Motion: Commissioner Hay moved to approve the Consent Bids and Purchases over $100,000. Vice Mayor Cruz seconded the motion. The motion passed unanimously. 8. Public Hearing -None 6 p.m. or as soon thereafter as the agenda permits. The City Commission will conduct these public hearings in its dual capacity as Local Planning Agency and City Commission. 9. City Manager's Report- None 10. Unfinished Business- None 11. New Business p Page 65 of 971 Meeting Minutes City Commission Meeting Boynton Beach, FL February 7, 2023 A. Consider the recommendation from the Recreation & Parks Advisory Board to rename the Boynton Beach Tennis Center to the Boynton Beach Tennis and Pickleball Center in order to highlight the addition of six permanent pickleball courts installed at the Tennis Center. Kacy Young, Recreation and Parks Director, gave an overview of the ordinance regarding renaming City facilities. He explained why they would like to change the name to what is being presented. Motion: Commissioner Hay moved to approve the renaming of the Boynton Beach Tennis Center to the Boynton Beach Tennis and Pickleball Center. Vice Mayor Cruz seconded the motion. Vice Mayor Cruz asked for an update of what happened to the courts and what was spent to update these courts. She asked if they have a new date for the ribbon cutting ceremony. Mr. Young explained what they did to change the courts over to the pickleball courts. He said that they are looking at March 4, 2023 for the ribbon cutting. Commissioner Kelley asked about the process to rename the center, what needs to be changed and the cost. Mr. Young said that the first step was consensus from the Commission, then getting the word out on social media, and then they will work on changing signage. Mayor Penserga asked Mr. Young if he will come back with more information about the changes. Mr. Young responded yes. In a roll call vote, the motion passed unanimously. Commissioner Turkin requested a 5 -minute recess at 8:16 PM. The meeting reconvened at 8:21 PM. 12. Legal A. Proposed Ordinance No. 23-001 - First Reading - Approve modifications to the existing methodology for the Payment in Lieu of Workforce Housing Units program; to include an FAR bonus; and to clarify the receiving areas for height, FAR, and density bonuses (CDRV 23-001) by amending LAND DEVELOPMENT REGULATIONS, Chapter 1. Art II. Sec 2.C.11. In -Lieu and Off -Site Options (related to the Workforce Housing Program). 10 Page 66 of 971 Meeting Minutes City Commission Meeting Boynton Beach, FL February 7, 2023 Attorney City Attorney Swartz read the ordinance into the record. Ms. Amanda Radigan, Director of Planning and Zoning, spoke about the Workforce Housing Payment in Lieu Amendment as follows: current workforce housing program; challenges & proposed amendments; and questions. Mayor Penserga stated that what he has heard so far is what he would support. He spoke about the sliding scale. Commissioner Hay stated that he is happy that the FAR went up only .5, not 50%. He said that he does support this, because they do need more workforce housing. Ms. Radigan said that they are using the County's AMI and said that it is industry standards to do so. Vice Mayor Cruz spoke about revamping this program, because it is not successful. She asked what the current amount of money is in that fund. Ms. Radigan said the last she heard, it was between $70K -100K, but she can get the information. Vice Mayor Cruz said that with $90K you cannot purchase property. She asked if this is passed, that they are not actually building properties. Ms. Radigan said that these funds could be used for whatever they want, such as purchasing a property, etc. Vice Mayor Cruz spoke about new language that is being proposed. Ms. Radigan stated that this is not new, it is being reiterated. Vice Mayor Cruz stated that in general, the Board needs to focus on the actual problem. She asked how do we determine when a unit gets more density. Ms. Radigan clarified that it is not part of this program and does not affect this ordinance. She explained the density code. There was discussion regarding density. Commissioner Turkin thanked Staff for working on this project. He said that this is a conversation that we need to go more in depth with. Ms. Radigan spoke about grants that can help with building more properties. She explained the additional .5 FAR. Page 67 of 971 Meeting Minutes City Commission Meeting Boynton Beach, FL February 7, 2023 Commissioner Turkin spoke about discouraging density. Mayor Penserga spoke about recognizing, protecting, and preserving our current affordable housing stock. Commissioner Kelley asked how we have a Comp plan that does not match our LDR. Ms. Radigan explained the difference and said that it is designed that way. Commissioner Kelley spoke about bringing in funding to the City that would be beneficial. She spoke about figuring out what is working and what is not working. Ms. Radigan spoke about doing a workshop, because there is a lot of information, and it is complex. She spoke about having an increase on the in -lieu of fee. There was further discussion regarding the in -lieu of fee. Commissioner Hay asked to allow public comment on this item. Mayor Penserga stated that he would rather stick to the rules. Commissioner Turkin supported Commissioner Hay. Mayor Penserga said there are not enough votes to open public comment and there will be more times for them to speak. He noted they had a chance to speak earlier as well. Motion: Commissioner Hay moved to approve Ordinance No. 23-001. Commissioner Kelley seconded the motion. In a roll call vote, the motion passed unanimously. B. Proposed Ordinance No. 23-002 - First Reading - Approve modifications (CDRV 23-002) amending the LAND DEVELOPMENT REGULATIONS, Chapter 3. Zoning, to modify requirements for commercial frontage within the Boynton Beach Boulevard Overlay. Assistant City Attorney Swartz read the ordinance into the record. Ms. Radigan spoke about the following: overview and current conditions; proposed amendments; and questions. Commissioner Turkin stated that he is not a fan of reducing the commercial frontage. He said that the practical approach is to switch the percentages, which would make sense. He mentioned that he would not support what is in front of him right now. 12 Page 68 of 971 Meeting Minutes City Commission Meeting Boynton Beach, FL February 7, 2023 Ms. Radigan spoke about the zoning in the area that they are speaking about. Vice Mayor Cruz stated that she opposes this. She spoke about prioritizing the downtown core and keeping their dollars here. Commissioner Hay asked about the pedestrian zone. Ms. Radigan responded that they are measured from the back of curb and are required. Commissioner Hay stated that he initially thought about changing it past Seacrest and said he would support leaving it at 70% commercial and 30% active. Commissioner Kelley said that it is too soon to make changes. Commissioner Hay asked if the sidewalks are being widen. Ms. Radigan stated as far as a different ordinance there is a different requirement, but they are not being changed for this. Vice Mayor Cruz asked if sidewalk sizes changes. Ms. Radigan stated yes, depending on the areas, and she explained what the zones are and what the sidewalk requirements are for the respective areas. Commissioner Turkin stated that he would like to see the options for this area. Ms. Radigan clarified what this ordinance is proposing to change. There was further discussion regarding sidewalks. Mayor Penserga said that he will not support this ordinance. He spoke about being practical with the amendments. Vice Mayor Cruz spoke about a survey that was done last year and the response was that the residents want more restaurants and retail. There was discussion regarding uses of the spaces in the downtown; Boynton Beach Boulevard being a hurricane evacuation route; quantifiable percentage being the same; pedestrian zone requirements; and flexibility. Motion: Vice Mayor Cruz moved to approve Ordinance No. 23-002. Commissioner Kelley seconded the motion. In a roll call vote, the motion did not pass (0-5). 13 Page 69 of 971 Meeting Minutes City Commission Meeting Boynton Beach, FL February 7, 2023 C. Proposed Ordinance No. 23-003 - First Reading- Approve modifications (CDRV 23-003) amending the LAND DEVELOPMENT REGULATIONS, Chapter 2. Land Development Process, Article II. Planning and Zoning Division Services, Section 2. Standard Applications, to establish a process for proposed Development Agreements. Assistant City Attorney Swartz read the ordinance by title. Ms. Radigan spoke about the following: overview; proposed amendments; and questions. Commissioner Turkin asked if this is only for sites with 15 acres+. Ms. Radigan responded yes and mentioned the eligible properties. Commissioner Turkin stated that he does not see an issue with this. Vice Mayor Cruz asked if it is possible for a 15+ acre property to not secure a building permit for 6 years. Ms. Radigan responded no and explained the requirements. Commissioner Hay said that he will support this item. Motion: Commissioner Kelley moved to approve Ordinance No. 23-003. Commissioner Hay seconded the motion. Vice Cruz asked about line #4 and for legal clarification. She recommended adding to language "up to 72 months" to secure a building permit for vertical construction. Ms. Radigan clarified the code currently includes that language within the actual standards. In a roll call vote, the motion passed unanimously. 13. Future Agenda Items A. Approval of Variance (ZNCV 23-002) of Part III, Chapter 4, Article II, Section 4.B.3.c — Urban Landscape Buffer (Type 2), to grant a variance of seven (7) feet from the required twelve (12) foot buffer, to allow for a five (5) foot wide landscape buffer, and the elimination of the requirement to provide a six (6) foot tall masonry wall. - Tabled until February 21, 2023 B. Continued discussion regarding a potential park in Leisureville and 14 Page 70 of 971 Meeting Minutes City Commission Meeting Boynton Beach, FL February 7, 2023 creating a Restrictive Covenant on this parcel, requested by Vice Mayor Cruz. — TBD C. Discussion regarding American Rescue Plan Funds, requested by Mayor Penserga — TBD D. Continue discussion on adding a new sister city, requested by Commissioner Turkin — TBD E. Consider revised local rules for approval. -TBD F. Discussion regarding installing a coral reef at Oceanfront Park, requested by Commissioner Turkin — TBD G. Review Advisory Board Ordinance, requested by Commissioner Kelley. — TBD H. Discussion regarding future cemetery lots in Boynton Beach, requested by Commissioner Hay- TBD Discussion for Ordinance regarding tints for paraphernalia shops, requested by Commissioner Turkin - TBD Adjournment Motion: Commissioner Kelley moved to adjourn the meeting. Commissioner Hay seconded the motion. The motion passed unanimously. There being no further business to discuss, the meeting was adjourned at 9:31 PM. CITY OF BOYNTON BEACH ATTEST: Maylee De Jesus, MMC City Clerk 15 Page 71 of 971 7.A. Requested Action by Commission: Approve the purchase of seven (7) replacement vehicles that were approved in the FY22-23 budget for an estimated amount of $374,710 by utilizing the Florida Sheriff's Contract FSA22-VEL30.0. Explanation of Request: The Public Works Fleet Division recommends the purchase of seven (7) replacement vehicles. Attached is a spreadsheet indicating proposed replacement type, number of units ordered, user department, bid/contract information and projected cost. FSA22-VEL30.0 (Effective October 1, 2022 - September 31, 2023) The Fleet Maintenance Division intends to award the following vendor for the purchases as follows (see attached Exhibit 1 for vendor details): 1. Garber Fleet Sales for seven (7) 2023 Ford F-150 Police Responder XL 4WD Super Crew 5.5 Box for Police in the amount of $374,710. These units utilize the FSA22-VEL30.0 contract. How will this affect city programs or services? These vehicles will be used throughout the City to provide services to our residents. Fiscal Impact: The Total amount of $2,067,306 was approved in the FY 22-23 budget for this purchase of approximately $374,710 Alternatives: By deferring purchases, departmental maintenance cost and equipment downtime would increase. Strategic Plan: Strategic Plan Application: Climate Action Application: Is this a grant? No Grant Amount: Page 72 of 971 Contracts Vendor Name: Garber Fleet Sales Start Date: 110/11/2022 End Date: 9/30/2023 Contract Value: Minority Owned Contractor?: No Extension Available?: Yes Extension Explanation: May be extended by mutual agreement, at the sole discretion of the FSA. Attachments: Type D Cointract D QLAOtE)S Description 1:::: 1 , ShE)rfffs Associatioin Cointract 1::::SA22 V11::.11.....3. 02...01...23 QLAOtE) Page 73 of 971 Sik E \|//S ASSOC IATI\\ 11 ,05r"7 � < > y> wv \� FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions Table of Contents 1.0 GENERAL CONDITIONS.............................................................................................................. 5 1.01 BID CORRESPONDENCE................................................................................................ 5 1.02 PURPOSE.......................................................................................................................5 1.03 TERM OF CONTRACT..................................................................................................... 5 1.04 ESTIMATED QUANTITIES............................................................................................... 5 1.05 SHERIFF AS COUNTY CONSTITUTIONAL OFFICER......................................................... 5 1.06 FUNDING.......................................................................................................................6 1.07 CURRENCY.....................................................................................................................6 1.08 GENERAL DEFINITIONS................................................................................................. 6 1.09 ELIGIBLE PURCHASERS OF CONTRACT.......................................................................... 8 1.10 LEGAL REQUIREMENTS................................................................................................. 8 1.11 PATENTS & ROYALTIES................................................................................................. 8 1.12 FEDERAL AND STATE STANDARDS................................................................................ 9 1.13 UNDERWRITERS' LABORATORIES................................................................................. 9 1.14 AMERICANS WITH DISABILITIES ACT............................................................................ 9 1.15 REASONABLE ACCOMMODATION................................................................................ 9 1.16 DISADVANTAGED BUSINESSES..................................................................................... 9 1.17 ANTI-DISCRIMINATION...............................................................................................10 1.18 BEST COMMERCIAL PRACTICES.................................................................................. 10 1.19 PUBLIC ENTITY CRIMES (PEC)..................................................................................... 10 1.20 TAX EXEMPTION......................................................................................................... 10 1.21 ORDER OF PRECEDENCE IN THE EVENT OF CONFLICT ............................................... 10 1.22 COMMUNICATIONS....................................................................................................11 1.23 CLARIFICATION AND ADDENDA.................................................................................. 11 1.24 SIGNED BID CONSIDERED AN OFFER.......................................................................... 11 1.25 ASSIGNMENT OF CONTRACT...................................................................................... 12 1.26 TERMINATION OF PRODUCT LINE.............................................................................. 12 1.27 METHOD OF AWARD..................................................................................................12 1.28 DEMONSTRATION OF COMPETENCY.......................................................................... 12 Page 1 Page 75 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions 1.29 VENDOR ABILITY TO PERFORM.................................................................................. 13 1.30 FINANCIAL RESPONSIBILITY........................................................................................ 13 1.31 QUALITY AND SAFETY................................................................................................. 13 1.32 NONCONFORMANCE..................................................................................................14 1.33 GRATUITIES.................................................................................................................14 1.34 TIE BIDS....................................................................................................................... 14 1.35 RIGHT TO AUDIT......................................................................................................... 14 1.36 LIABILITY, INSURANCE, LICENSES AND PERMITS........................................................ 15 1.37 BID AND PERFORMANCE BONDS................................................................................ 15 1.38 ELIMINATION FROM CONSIDERATION....................................................................... 15 1.39 COLLUSION................................................................................................................. 15 1.40 DEFAULT..................................................................................................................... 16 1.41 PROTESTS AND ARBITRATION.................................................................................... 16 1.42 NONPERFORMANCE...................................................................................................17 1.43 SEVERABILITY..............................................................................................................18 1.44 TERMINATION FOR CAUSE......................................................................................... 18 1.45 TERMINATION WITHOUT CAUSE................................................................................ 18 1.46 CONTRACT ADVERTISMENT AND USE OF FSA LOGO ................................................. 19 2.0 BIDDER INSTRUCTIONS........................................................................................................... 20 2.01 QUALIFICATION.......................................................................................................... 20 2.02 LICENSING AND FACILITIES......................................................................................... 20 2.03 INSURANCE AND INDEMNIFICATION......................................................................... 21 2.04 SPECIFICATIONS..........................................................................................................22 2.05 FIXED PRICES............................................................................................................... 23 2.06 DISCOUNTS................................................................................................................. 23 2.07 SEALED BIDS................................................................................................................ 23 2.08 EXCEPTIONS................................................................................................................23 2.09 MISTAKES....................................................................................................................23 2.10 EQUIVALENTS............................................................................................................. 24 2.11 MANDATORY PRE-BID MEETING................................................................................ 24 2.12 PRICES QUOTED.......................................................................................................... 24 Page 2 Page 76 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions 2.13 OPTION PRICING......................................................................................................... 24 2.14 EMERGENCY LIGHTS AND SIRENS............................................................................... 25 2.15 SUBMITTAL OF BID..................................................................................................... 26 2.16 ZONE BIDDING............................................................................................................ 27 2.17 EXECUTION OF BID..................................................................................................... 27 2.18 MODIFICATION OR WITHDRAWALS OF BIDS............................................................. 28 2.19 LATE BIDS.................................................................................................................... 28 2.20 BID OPENING.............................................................................................................. 28 2.21 DETERMINATION OF RESPONSIVENESS..................................................................... 28 2.22 RESPONSIBLE BIDDER CRITERIA.................................................................................. 28 2.23 BASIS FOR AWARD...................................................................................................... 29 2.24 FIRM BID..................................................................................................................... 29 2.25 BID TABULATIONS....................................................................................................... 29 2.26 MINOR IRREGULARITIES/RIGHT TO REJECT................................................................ 29 2.27 CONE OF SILENCE....................................................................................................... 30 3.0 CONTRACT CONDITIONS......................................................................................................... 31 3.01 GENERAL REQUIREMENTS.......................................................................................... 31 3.02 STATEMENT OF AUTHORITY....................................................................................... 31 3.03 VENDOR CONTACT INFORMATION............................................................................ 31 3.04 ADDITIONS OR DELETIONS......................................................................................... 31 3.05 CONTRACT EXTENSION............................................................................................... 31 3.06 PRICE ADJUSTMENT.................................................................................................... 31 3.07 CONDITIONS............................................................................................................... 32 3.08 PRODUCTION CUTOFF................................................................................................ 32 3.09 FACILITIES................................................................................................................... 33 3.10 PURSUIT RATED VEHICLES & MOTORCYCLES............................................................. 33 3.11 SPECIAL SERVICE VEHICLES......................................................................................... 33 3.12 CAB AND CHASSIS PURCHASES................................................................................... 33 3.13 FACTORY -INSTALLED OPTIONS................................................................................... 33 3.14 VENDOR -INSTALLED OPTIONS.................................................................................... 34 3.15 NON-SCHEDULED OPTIONS........................................................................................ 34 Page 3 Page 77 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions 3.16 FORCE MAJEURE......................................................................................................... 34 3.17 ORDER.........................................................................................................................34 3.18 REGISTRATION, TAG, AND TITLE................................................................................. 35 3.19 DELIVERY.....................................................................................................................35 3.20 INSPECTION AND ACCEPTANCE.................................................................................. 36 3.21 INVOICING AND PAYMENTS....................................................................................... 36 3.22 WARRANTY................................................................................................................. 36 3.23 PURCHASE ORDERS..................................................................................................... 36 3.24 QUARTERLY REPORTS................................................................................................. 37 3.25 ADMINISTRATIVE FEE................................................................................................. 37 3.26 LIQUIDATED DAMAGES.............................................................................................. 38 AppendixA: Zone Map.............................................................................................................. 39 AppendixB Bid Calendars......................................................................................................... 40 AppendixC: ACH Payments...................................................................................................... 41 Appendix D: Federal Clauses..................................................................................................... 42 Page 4 Page 78 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions 1.0 GENERAL CONDITIONS 1.01 BID CORRESPONDENCE All correspondence regarding this bid should be directed to the Florida Sheriffs Association, "FSA". Please be sure to reference the bid number and title, and provide your contact information. Communication for this Invitation to Bid should be identified by contract number and title and directed to: Florida Sheriffs Association Attn: Cooperative Purchasing Program Coordinator 2617 Mahan Drive Tallahassee, FL 32308 E-mail Cf'F'12fj�b2ig IiI[lymall IN111.91 The Florida Sheriffs Association invites interested bidders, including manufacturers and dealers or authorized representatives to submit responses in accordance with these solicitation documents. The FSA Cooperative Purchasing Program will conduct the solicitation process and administer the resulting contract. The purpose of this bid is to establish contracts with manufacturers and manufacturer's authorized dealers for contract terms specified under Section 1.03 for the purchase of items on a "no trade-in basis." II111K 1Y1IINUIIdwere]Q1YM.toVI The term for Contracts FSA22-VEL30.0 Pursuit, Administrative and Other Vehicles and FSA22-VEH2O.0 Heavy Trucks and Buses shall remain in effect for one year from date of contract execution by the FSA, and may be extended by mutual agreement, at the sole option and discretion of the FSA. The initial term of these contracts begins October 1, 2022, and ends September 30, 2023. Contract extensions will only be executed when the FSA determines, based on then -existing conditions, that it is in the best interest of the FSA and the purchasers to do so. 1.04 ESTIMATED QUANTITIES Over the last three years, eligible users purchased an average of 5,937 vehicles from these contracts each year. These estimated figures are given as a guideline for bidders preparing bids. Quantities for items depend on many factors, including the vendor's marketing efforts, established business with local governments and products awarded. Quantities provided do not guarantee or imply future contract sales. Neither the FSA nor any eligible user is obligated to place any order for a given amount subsequent to the award of this bid solicitation. 1.05 SHERIFF AS COUNTY CONSTITUTIONAL OFFICER The Offices of the Sheriff in the State of Florida are constitutional offices of the State of Florida. Each has the authority either individually or collectively to execute contracts for all goods and services for the proper conduct of that office. Section 30.53, Florida Statutes, exempts the sheriffs' offices from the provisions of the Florida Statute that would otherwise require sealed and competitive bidding procedures. Page 5 Page 79 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions The Office of the Sheriff is not required by law to accept the lowest priced proposal and may reject any or all of the proposals without recourse. Bidders are solely responsible for their own bid preparation costs and nothing in this solicitation in any way obligates the participating sheriffs' offices for any payment for any activity or costs incurred by any bidder in responding to this solicitation. In the case of certain purchasers, including state agencies, funds expended for the purposes of the contract must be appropriated by the Florida Legislature, the individual participating agency or the agency's appropriating authority for each fiscal year included within the contract period. For such agencies, their performances and obligations to pay for products or services under any resulting contract, or purchase order, are contingent upon such an annual appropriation by the Legislature, individual agency or by the appropriating authority. Therefore, any contract or purchase order with such an agency shall automatically terminate without penalty or termination costs in the event of non -appropriation. 1.07 CURRENCY All transaction amounts, bids, quotes, provisions, payments or any part of this contract relating to currency are to be made in United States Dollar. �1[I�:J<HIIQ111.7.�1�17111fIQ111Y[�]Q[.� The terms used in this contract are defined as the following: A. Base Specification: Items developed by the FSA for bidders to bid on. These items may be unique to FSA and require additional components to the standard manufacturer specifications and equipment. B. Bidder: A bidder or enterprise that submits a formal bid to the FSA Cooperative Purchasing Program in accordance with the FSA CPP Terms and Conditions. A bidder, that is not the manufacturer, must be authorized by the manufacturer to market and sell an item for which they are bidding. C. Bid System: The online forum used for the submission of bids and review of bid results for the specifications connected to this Invitation to Bid. VendorLink is the software used for this bid. D. Build Sheet: A document from the bidder or manufacturer that confirms that the bid specifications submitted by bidders matches the FSA base specification. Build sheets include, but are not limited to, the factory options list and door data plate info for the vehicles. They provide details such as engine size and transmission, paint codes, production date, axle code etc. E. Dealer: An enterprise authorized by the manufacturer to market, sell, provide, and service the items for the FSA Cooperative Purchasing Program. Dealers may be vendor -owned and controlled, in whole or in part, or independently owned and controlled. F. Florida Sheriffs Association Cooperative Purchasing Program (FSA): The entity that administers the Invitation to Bid and contract administration functions for this contract. G. End User: A term used to distinguish the person who ultimately uses or is intended to use a product or for whom a product is designed for use. Page 6 Page 80 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions H. Factory: Refers to the manufacturer produced products. I. Fleet Advisory Committee (committee): An employee of a sheriff's office or other local governmental agency, or person who FSA identifies as subject matter expert who assists with the development of bid specifications and evaluation of bid responses. The committee makes recommendations to the FSA and is not responsible for final awards. J. Invitation to Bid: A competitive solicitation and award process established through the issuance of an invitation to bidders, vendors, dealers and manufacturers to submit a price offer on a specific product to be provided. This term shall include the bid specifications available to bidders on the bid system and references to solicitation documents. The term shall not include request for proposals, request for quotes, request for letters of interest, or the solicitation of purchase orders based on oral or written quotations. K. Manufacturer: The original producer or provider of items offered on this contract. L. Manufacturer's Suggested Retail Price (MSRP): Manufacturer's Suggested Retail Price (MSRP) represents the Manufacturer's recommended retail selling price, list price, published list price, or other usual and customary price that would be paid by the purchaser. The following are acceptable sources of current MSRPs and MSRP Lists for use in submission of the bid solicitation and the resulting contract: a. Manufacturer's Computer Printouts b. Chrome Systems, Inc.'s PC Carbook Plus and PC Carbook Fleet Edition c. Manufacturer's Annual U.S. Price Book d. Manufacturer's official website M. Non -Scheduled Options: Any optional new or unused component, feature or configuration that is not included or listed in the base specifications or options. N. Production Cutoff: A date used by manufacturers to notify vendors and dealers that the factory has reached maximum capacity for orders or are discontinuing the production of an item. Vehicle manufacturers use this term when referring to any given model year for production. O. Published List Price: A standard "quantity of one" price currently available to government and educational purchasers, excluding cooperative or volume discounts. Purchaser: A purchaser is an entity that seeks to obtain items awarded on this contract by meeting the eligible user criteria or with vendor approval. Q. Purchase Order: A request for order from a purchaser to an awarded vendor for an item that has been awarded on this contract. Purchase orders placed using this contract formalize the terms and conditions of this contract under which a vendor furnishes items to a purchaser. R. Qualification Packet: This document contains the required forms, attestations, authorizations, and organizational information needed by bidders to submit a successful and complete bid. S. Terms & Conditions: This document serves as the governing contract for the identified FSA contract and bid. Standard regulations, processes, procedures, and compliance requirements are identified herein. Bidders complete a qualification packet during the bid process indicating they agree to comply with the Terms & Conditions, and that this will serve as a contract for both parties. Page 7 Page 81 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions T. Third Party Supplier: Businesses external to a bidder or vendor that provide products and services which contribute to the overall finished item in this contract. Third Party Suppliers are contractors under the direction and responsibility of the bidder or vendor. U. Vendor: The bidder that has been awarded, who agrees to provide the contract items that meet the requirements and base specifications of the contract. The vendor must agree to the contract terms and conditions, which will serve as the governing contract. V. Vendor Installed: A product or service provided by the vendor or other third party; not the factory. �111j:�111I[!'�I:j111.11�;2110/.[.911.i.Y�IY<K�]QYY.7.21111 Awarded bids, or contract prices, will be extended and guaranteed to the Florida Sheriffs Association, any unit of local government, political subdivision or agency of the State of Florida. This includes, but is not limited to counties, municipalities, sheriffs' offices, clerks, property appraisers, tax collectors, supervisors of elections, school boards or districts, water management districts, other special districts, police and fire departments, emergency response units, state universities and colleges, or other state, local or regional government entities within the State of Florida. Eligible purchaser also includes all Eligible Users as defined in F.A.C. 60A-1.001(2). All purchasers are bound by state law, local ordinances, rules and regulations for purchases made under this contract. Participating agencies cannot guarantee any order other than those ordered by the individual agency. In addition, bids can be extended and guaranteed to other entities approved by manufacturers to participate in this contract, which can include out-of-state sales. Vendors that wish to extend contract pricing to entities other than those defined here are governed by their manufacturer's agreement, and must agree to the terms and conditions of this contract. 1.10 LEGAL REQUIREMENTS Federal, State, and local laws, ordinances, rules and regulations that in any manner affect the items covered herein apply. Lack of knowledge by the bidder of applicable legal requirements will in no way be a cause for relief from responsibility. Bidders have the option to certify and agree to comply with federal regulations allowing for the acceptance of federal grant funds. By opting in bidders may be able to accept federal and state grant funds from purchasers. This is not a requirement of the bid or contract. Bidders are not required to opt -in; however, they are required to indicate whether they will opt -in or opt -out of federal compliance. Appendix D outlines federal clauses found to generally apply with the FSA contracts. FSA has taken actions to provide and develop information, materials, and resources for bidders, vendors and purchasers that will assist in the use of federal grant dollars with this contract. It is the responsibility of the purchaser to determine compliance for each vendor, if they wish to use federal grant funds for purchase, or intend to request reimbursements using federal dollars. See Appendix D for Appendix II to Part 200 - Contract Provisions for Non -Federal Entity Contracts Under Federal Awards for requirements that apply to this contract and to awarded vendors. 11Iiii1•�.11Y11QYK�:�.Z1Y/.�NYII[.� Page 8 Page 82 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions The bidder, without exception, shall indemnify and hold harmless the FSA and its employees from liability of any nature or kind, including costs and expenses for, or on account of, any copyrighted, patented, or unpatented invention, process, or article manufactured or used in the performance of the contract, including its use by the FSA or a purchaser. If the bidder uses any design, device or materials covered by letters, patent, or copyright, it is mutually understood and agreed, without exception, that the bid prices shall include all royalties or costs in any way arising, directly or indirectly, from the use of such design, device, or materials in any way involved in the work. ��ii�.��117�1.7.11I.1Q11Ly1Y:11YD[.ylY:1Q117.1.11I It is the intent of FSA that all specifications herein are in full and complete compliance with all federal and State of Florida laws, requirements, and regulations applicable to the type and class of commodities and contractual services being provided. In addition, any applicable federal or State legal or regulatory requirements that become effective during the term of the contract, regarding the commodities and contractual services' specifications, safety, and environmental requirements shall immediately become a part of the contract. The vendor shall meet or exceed any such requirements of the laws and regulations. If an apparent conflict exists, the vendor shall contact the FSA immediately. 1.13 UNDERWRITERS' LABORATORIES Unless otherwise stipulated in the bid, all manufactured items and fabricated assemblies shall be Underwriters' Laboratories, or U.L., listed or re-examination listing where such has been established by U.L. for the item(s) offered and furnished. 1.14 AMERICANS WITH DISABILITIES ACT To request this material in accessible format, sign language interpreters, information on access for persons with disabilities, or any accommodation to review any document or participate in any FSA sponsored proceeding, please contact FSA Human Resources at (850) 877-2165 five business days in advance to initiate your request. TTY users may also call the Florida Relay Service at 711. 1.15 REASONABLE ACCOMMODATION In accordance with the Title II of the Americans with Disabilities Act, any person requiring an accommodation at the Bid opening because of a disability must contact the FSA Human Resources at (850) 877-2165. 1.16 DISADVANTAGED BUSINESSES As part of the solicitation process FSA makes information available to potentially qualified entities publicly available, and conducts additional outreach to qualified: • Small businesses, • Minority-owned small businesses, Women -owned small business enterprises, and Disadvantaged business enterprises. Page 9 Page 83 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions FSA takes necessary affirmative steps to assure that minority businesses, women's business enterprises, and labor surplus area firms are used when possible, as recommended by 2 C.F.R. § 200.321. FSA will: • Evaluate whether small, minority, and women's businesses are potential sources, • Place those qualified small and minority businesses and women's business enterprises on solicitation lists, and Search the Small Business Administration, Minority Business Development Agency, and Labor Surplus Area reports for additional potential sources. Bidders self -identify in the qualification packet whether they meet the state and federal definitions of a disadvantaged business. 1.17 ANTI -DISCRIMINATION The bidder certifies that they are in compliance as applicable by federal or state law with the non-discrimination clause contained in Section 202, Executive Order 11246, as amended by Executive Order 11375, relative to equal employment opportunity for all persons without regard to race, color, religion, sex or national origin. 1.18 BEST COMMERCIAL PRACTICES The apparent silence or omission of any description from the specifications shall be regarded as meaning that only the best commercial practices, size, and design are to be used. All workmanship is to be first quality. All interpretations of this specification shall be upon the basis of this statement. 1.19 PUBLIC ENTITY CRIMES (PEC) In accordance with the Public Entity Crimes Act, Section 287.133, Florida Statutes, a person or affiliate who has been placed on the convicted vendor list maintained by the State of Florida Department of Management Services following a conviction for public entity crimes may not submit a bid on a contract to provide any goods or services to a public entity, may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to public entity, may not be awarded or perform work as a vendor, supplier, sub -vendor, or consultant under a contract with a public entity, and may not transact business with any public entity in excess of the threshold amount provided in Section 287.017, Florida Statutes, for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list. 1.20 TAX EXEMPTION Purchasers making a purchase pursuant to the awarded bid are generally exempt from Federal Excise and State Sales Tax. It is the responsibility of the vendor to verify that the purchaser is exempt by obtaining the purchaser's Federal Excise and State Taxes and Use Certificate Number. The Florida Sheriffs Association is a 501(c)3 organization and is exempt from all Federal Excise and State Taxes. State Sales Tax and Use Certificate Number is 85-8012646919C-3. 1.21 ORDER OF PRECEDENCE IN THE EVENT OF CONFLICT In the event of conflict, the conflict may be resolved in the following order of priority (highest to lowest): • Addenda to Contract Terms and Conditions, if issued • Contract Conditions Page 10 Page 84 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions • Addenda to Bid Specifications, if issued • Bid Specifications • Bidder Instructions • General Conditions 1.22 COMMUNICATIONS Communications between a bidder, lobbyist or consultant and FSA are limited to matters of process or procedure and shall be made in writing to the FSA CPP Staff. Bidders should not rely on representations, statements, or explanations other than those made in this bid or in any written addendum to this bid, and no oral representations, statements, or explanations shall be deemed to bind the FSA or eligible users. Iii•IC�111I.�.�1�[11.11Y[�]Q/.1Q117.�1]I]�IQ117.1 Any questions or clarifications concerning the Invitation to Bid shall be submitted to FSA by e-mail to f'f' ��ilrlr�.i 1piro�xi g with the bid title and number referenced on all correspondence. Final questions must be received by the date for Request for Clarification stated on the Bid Calendar. Questions and answers will be posted to the FSA Cooperative Purchasing Program website on the date indicated on the Bid Calendar. Questions received during the cone of silence date listed on the bid calendar will not be addressed, except as provided herein. Interpretation of the specifications or any solicitation documents will not be made to the bidder verbally, and if any verbal clarifications are provided they are without legal effect. FSA will make every attempt to e-mail updates to registered bidders. However, posting to the FSA website or the bid system constitutes proper notice of addenda. The FSA shall issue a Formal Addendum if substantial changes which impact the submission of bids are required. Any such addenda shall be binding on the bidder and shall become a part of the solicitation document. In the event of conflict with the original specifications, addenda shall govern to the extent specified. Subsequent Addenda shall govern over prior Addenda only to the extent specified. The FSA will not be responsible for any explanation or interpretation made verbally or in writing except those made through the posting of a Formal Addendum. The bid submission constitutes acknowledgment of addenda to the specifications. Bids that fail to account for the specification addenda shall be determined to be nonresponsive; however, the FSA may waive this requirement in its best interest. After the start of the contract term, FSA will notify all vendors of any addenda and will require acknowledgement of the new terms and conditions. If the vendor does not agree to the new terms and conditions, the vendor's award can be removed or replaced by another vendor or qualified responsive bidder. 1.24 SIGNED BID CONSIDERED AN OFFER The signed bid shall be considered an offer on the part of the bidder, which offer shall be deemed accepted upon approval by the FSA. The bid submission must be signed by an authorized representative. Submission of a bid in the FSA bid system constitutes a signed bid for purposes of bid evaluation. An electronic signature may be used and shall have the same force and effect as a written signature. Page 11 Page 85 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions 1.25 ASSIGNMENT OF CONTRACT No right or interest in this contract may be assigned, transferred, conveyed, sublet or otherwise disposed of, without prior written consent of the FSA. If the original vendor sells or transfers all assets or the entire portion of the assets used to perform this contract, a successor -in -interest must perform all obligations under this contract. FSA reserves the right to reject the acquiring entity as vendor. A change of name agreement will not change the contractual obligations of the vendor. In the event a manufacturer reassigns the product line to an alternate company, the vendor is required to immediately notify the FSA in writing of the change within 10 business days confirming the reassignment. If the vendor is not already an approved FSA vendor, the alternate company is required to submit a Qualifications Packet to the FSA to become an approved vendorrip or to conducting any qualified sales. FSA may approve such assignments of existing or new vendors at its discretion. The vendor is required to honor the contract pricing and all of the applicable terms and conditions throughout the remaining term of the contract. 1.26 TERMINATION OF PRODUCT LINE If a vendor terminates a product line (manufacturer or brand), the vendor is required to notify the FSA within 10 business days of the decision not to retain the product line. FSA may remove the terminated products from the contract. 1.27 METHOD OF AWARD The award is made to responsive and responsible bidders. FSA uses its discretion in determining if bids meet the requirements of this solicitation. The FSA reserves the right to make multiple awards for each item, if deemed in the best interest of the FSA and the purchasers. Awards will be posted on the FSA website according to the date posted in the bid calendar. ��:�17�1U[�]Q[.ylY.7.11Y[�]Q[�IYtK�]UI�DIIY�IQ[1Y1 Bidders must be able to demonstrate a good record of performance for a reasonable period of time, and have sufficient financial support, equipment and organization to ensure they can satisfactorily execute the services if awarded a contract under the terms and conditions herein stated. The terms "equipment" and "organization" as used herein shall be construed to mean a fully equipped and well- established company in line with the best business practices in the industry and as determined by the FSA. The FSA may consider any evidence available and may require submission of supporting documentation regarding the financial, technical and other qualifications and abilities of a bidder, including past performance with the FSA in making the award. The FSA may require bidders to show proof that they have been designated as authorized representatives of a manufacturer or supplier which is the actual source of supply. In these instances, the FSA may also require information from the source of supply regarding the quality, packaging and characteristics of the products. Any conflicts between this material information provided by the source of supply and the information contained in the bid submission may render the bid nonresponsive. Page 12 Page 86 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions Pre -award inspection of the bidder's facility may be made prior to the award of contract. Bids will only be considered from firms which are regularly engaged in the business of providing the goods or services as described in this bid. Information submitted in the bid may not be plagiarized and, except in the case of materials quoted from this solicitation or developed by the manufacturer, must be the original work of the individual or company that submits the bid for evaluation. 1.29 VENDOR ABILITY TO PERFORM During the contract period, FSA may review the vendor's record of performance and may require submission of supporting documentation to ensure that the vendor is providing sufficient financial support, equipment and organization. If the FSA determines that the vendor no longer possesses the financial support, equipment and organization in order to comply with this section, FSA has the authority to immediately terminate the contract awarded. By responding to this procurement, the vendor warrants that, to the best of his or her knowledge, there is no pending or threatened action, proceeding, or investigation, or any other legal or financial condition, that would in any way prohibit, restrain, or diminish the vendor's ability to satisfy the obligations of the contract. The vendor warrants that neither it nor any affiliate is currently on the convicted vendor list maintained pursuant to section 287.133 of the Florida Statues, or on any similar list maintained by any other state or the federal government. The vendor shall immediately notify the FSA and purchaser in writing if its ability to perform is compromised in any manner during the term of the contract. 1.30 FINANCIAL RESPONSIBILITY Bidder affirms by the submission of the bid and by signature on the contract signature form that the bidder: • Has fully read and understands the scope, nature, and quality of work to be performed or the services to be rendered under this bid and has adequate facilities and personnel to fulfill such requirements. • Accepts the financial responsibility associated with this bid and declares that they have the access to capital (in the form of liquidity or credit lines) in order to meet the financial demands of such award. • Has assessed the financial responsibility required to serve the contract as bid, including such details as the obligations to perform all items bid, zones bid, and quantities that could be ordered, as well as timing of payment from purchasers, which can be 45 calendar days from receipt of invoice. 1.31 QUALITY AND SAFETY All materials used for the manufacture or construction of any supplies, materials or equipment covered by this bid shall be new. The items bid must be new, the latest model, of the best quality, and highest -grade workmanship that meet or exceed federal safety standards. Items requiring certification should require certification of options in cases where non -certified options could result in the decertification of the original product or warranty. In all cases where options are not certified, the vendor must disclose to the end user that the non -certified options are not required to be certified. All options must meet or exceed federal safety standards. Page 13 Page 87 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions 1.32 NONCONFORMANCE Items may be tested for compliance with specifications. Items delivered that do not conform to specifications may be rejected and returned at the vendor's expense. Items not meeting the specifications and items not delivered within a reasonable period of time after expected delivery date may be purchased outside of the FSA contract. Any violation of these stipulations may also result in: • Vendor's name being removed from the awarded vendor list. • FSA and purchasers being advised not to do business with vendor. ��C�C�H,7.11111)fYYI Bidders shall not offer any gratuities, favors, or anything of monetary value to any official, employee, or agent of the FSA, for the purpose of influencing consideration of this bid. Bidders shall disclose in writing any conflicts of interest to FSA prior to any award, or as soon as practical after learning of any such conflict, including any contractual or employment relationships with FSA or potential purchasers of bidders' products or services. 1.34 TIE BIDS FSA has the right to award multiple bidders the primary or alternate award in the event of a tie. In the event the FSA desires to break tie bids, and both businesses have qualifying drug-free work programs, the award will be made using the following criteria: • Bidder within the State of Florida • Vendors performance record with purchasers • Coin Toss 1.35 RIGHT TO AUDIT Vendor shall establish and maintain a reasonable accounting system that enables FSA to readily identify vendor's sales. FSA and its authorized representatives shall have the right to audit and to make copies of all related records pertaining to this contract, including all government sales and eligible users information whether kept by or under the control of the vendor, including, but not limited to those kept by its employees, agents, assigns, successors, sub -vendors, or third -party suppliers in whatever form they may be kept — written or electronic. Such records shall include, but not be limited to: • Accounting records, including but not limited to purchase orders, confirmation of orders or invoices, paid vouchers, cancelled checks, deposit slips, ledgers, and bank statements • Written policies and procedures; • Subcontract files (including proposals of successful and unsuccessful bidders, bid recaps, etc.); • Original estimates, quotes, or work sheets; • Contract amendments and change order files; • Insurance documents; or • Memoranda or correspondence. Vendor shall maintain such records during the term of this contract and for a period of three (3) years after the completion of this contract. At the vendor's expense and upon written notice from FSA, the vendor shall provide such records for inspection and audit by FSA or its authorized representatives. Such records shall be made available to FSA during normal business hours within three business days of receipt of the written notice. FSA may Page 14 Page 88 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions select the vendor's place of business or offsite location for the audit. The FSA may also request the vendor provide requested records via e-mail. Vendor shall ensure FSA has these rights with vendor's employees, agents, assigns, successors, and third -party supplier and the obligations of these rights shall be explicitly included in any subcontracts or agreements formed between the vendor and any sub -vendors to the extent that those subcontracts or agreements relate to fulfillment of the vendor's obligations to FSA. Professional fees, personnel costs and travel costs incurred by FSA under its authority to audit and not addressed elsewhere will be the responsibility of the FSA. However, if the audit identifies under reporting, overpricing or overcharges (of any nature) by the vendor to FSA or a purchaser in excess of three percent (3%) of the total contract billings, the vendor shall reimburse FSA for the total costs of the audit not to exceed $5,000. If the audit discovers substantive findings related to fraud, misrepresentation, or non-performance, FSA may recoup all the costs of the audit work from the vendor. Any adjustments or payments that must be made as a result of any such audit or inspection of the vendor's invoices or records shall be made within a reasonable amount of time (not to exceed 60 calendar days) from presentation of FSA's findings to vendor. FSA has the right to assess damages or seek reimbursements or refunds based on audit results. 1.36 LIABILITY, INSURANCE, LICENSES AND PERMITS The bidder shall obtain and pay for all licenses, permits and inspection fees for this bid submission and contract. Where vendors are required to enter or go onto FSA or purchaser property to deliver materials or perform work or services as a result of a bid award, the vendor will assume the full duty, obligation and expense of obtaining all necessary licenses, permits and insurance. The vendor shall be liable for any damages or loss to the FSA or purchaser occasioned by negligence of the vendor or any person the vendor has designated in the completion of the contract as a result of the bid. 1.37 BID AND PERFORMANCE BONDS Bid Bonds, when required, shall be submitted with the bid in the amount specified in Bidder Instructions. Purchasers may request a performance bond from a vendor. Performance bonds are recommended with pre- payment and will be at the expense of the requesting agency. Purchasers should determine the best practice in comparing performance bond expense against any prior discounts that may be available. 1.38 ELIMINATION FROM CONSIDERATION This Invitation to Bid shall not be awarded to any person or bidder who has outstanding debts to the FSA, whether in relation to current or previous bid awards or for other business purposes. fimi1wto] III[oi]001QI Collusion is a non-competitive secret or sometimes illegal agreement between rival bidders that attempts to disrupt the contract process equilibrium. Collusion involves people or companies that would typically compete, but are conspiring or working together in which the outcome results in an unfair bid advantage. The parties may Page 1 S Page 89 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions collectively choose to agree to increase or decrease the item base price in one or more zones to maximize awards thus denying purchasers a fair price. Bidders or vendors who are found to have engaged in collusion will be considered nonresponsive, and will be suspended or barred from bid participation. Any contract award resulting from collusive bidding may be terminated for default. Further, any collusion that is detected by the FSA may be reported to relevant law enforcement and/or prosecutorial agencies. Bidders may submit multiple bids without conflict of collusion if the bid submitted is not from the same manufacturer and product line. Dealers which share the same ownership may submit multiple bids without conflict of collusion if the bidders are not in the same region featuring the same manufacturer and product line. 1.40 DEFAULT In case of default on the part of vendor, the FSA may take necessary steps to otherwise procure the products sought, including but not limited to procuring the products or services from the next highest ranked bidder or from other sources. A defaulting vendor may be held liable for costs incurred by the FSA in procuring replacement products. 1.41 PROTESTS AND ARBITRATION Any person who is adversely affected by the decision or intended decision to award shall file a "Notice of Protest" in writing to the FSA within three (3) business days after the posting of the Intent to Award and shall file a formal written protest within five (5) business days after filing the Notice of Protest. Failure to file both a notice of protest and a formal written protest within the above referenced timelines shall constitute a waiver of proceedings. The burden is on the party protesting the award of the bid to establish grounds for invalidating the award(s). The formal written protest must state with particularity the facts and law upon which the protest is based. Options are for informational purposes only and will not serve as a basis for protest. Failure to do so will result in a denial of protest. Formal written protest which states with particularity the facts and law upon which the protest is based will be reviewed by FSA legal counsel for legal soundness and validity, and corrective action will be taken as needed contingent upon the validity of such claims. However, any additional time required and cost incurred by the FSA to substantiate a protesting party's claim(s) beyond the normal scope of its legal review due to the vague or inconclusive nature of the protesting party's filing will be reimbursable to the FSA and deducted from the protesting party's bond or security which must accompany their filing. Any bidder who files an action protesting a decision or intended decision pertaining to this contract shall post a bond, cashier's check or money order payable to the Florida Sheriffs Association in the amount equal to ten percent of the item being protested. The bond, cashier's check or money order must be filed at the time of filing the formal written protest or within the five (5) business day period allowed for filing the formal written protest. FSA will provide the amount required within two (2) business days of the notice of protest received. This bond or security will be conditioned upon the payment of all costs which may be adjudged against the protesting party in a court of law and/or to reimburse the FSA for additional legal expenses incurred and required to substantiate the protesting party's claim(s). Failure to post the bond or security requirement within the time allowed for filing will result in a denial of protest. The filing of the protest shall not stay the implementation of the bid award by the Florida Sheriffs Association. Should the unsuccessful bidder(s) decide to appeal the decision of the FSA, they shall file a notice to FSA within three (3) business days of the FSA bid protest decision regarding their intent to request arbitration. A demand for Page 16 Page 90 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions arbitration with the American Arbitration Association's (AAA) commercial panel under its rules and regulations must be made within ten (10) business days of the FSA bid protest decision. Any person who files for an arbitration with the AAA shall post with the Florida Sheriffs Association at the time of filing the formal written arbitration request, a bond, cashier's check or money order payable to the Florida Sheriffs Association in the amount equal to ten percent of the product line being protested. This amount will be the same amount as the FSA provided at the time of filing the initial protest. Failure to provide written notice to FSA, file a demand for arbitration with the AAA, or failure to post the required bond and security requirement within the specified timelines shall constitute a waiver of arbitration proceedings. By responding to this procurement, the bidder expressly agrees to the use of mandatory binding arbitration to resolve any appeals of the decision of the FSA, and any claims arising from or in any way relating to the procurement process, and expressly waives any and all rights that it may otherwise have to pursue such claims in any other forum, judicial or otherwise. If the party filing for arbitration does not prevail, it shall pay all costs, legal expenses and attorney fees of the prevailing party incurred in connection with the arbitration. However, if the filing party prevails, the parties shall share equally the fees and expenses of the arbitration and AAA and each shall bear the cost of their own attorney fees. The filing for arbitration shall not stay the implementation of the bid award by the Florida Sheriffs Association. 1.42 NONPERFORMANCE By virtue of the bid submission, bidder acknowledges its obligation to sell items in all zones for which it is awarded. Failure of the bidder to comply with these requirements may result in the imposition of liquidated damages of up to $1,000 per item, which amount the vendor agrees is reasonable, or probation, suspension, termination or a combination thereof from current and future bids at the FSA's discretion. The vendor shall at all times during the contract term remain responsive and responsible. In determining vendor's responsibility, the FSA shall consider all information or evidence that demonstrates the vendor's ability or willingness to fully satisfy the requirements of the solicitation and the contract. Vendors that are not in compliance with any of the provisions of this contract can be assessed liquidated damages, suspended or terminated from the contract. The FSA at its sole discretion may remove a noncompliant vendor from future competitive bid solicitations; or take other actions including suspension from the contract until compliance issues are resolved, limit current or future vendor participation by items or zones, or other actions as determined by FSA at its sole discretion. At FSA's discretion, vendors may be required to develop corrective action plans to address contract compliance. Failure to abide by corrective action plans will result termination from the existing contract and future competitive bid solicitations at the discretion of the FSA. In situations where there is evidence that the vendor has engaged in egregious breaches of the contract with respect to either the FSA and/or the purchaser, the contract can be terminated and the vendor will be removed from future solicitations for a period of up to three (3) years, or a permanent ban from the bid process at the sole discretion of FSA. Specific conditions for termination include, but are not limited to; failure to perform, refusal to accept orders during the contract period while manufacturer orders are still being accepted for current model year or the new year if the vehicle is price protected by the factory, charging amounts exceeding MSRP on factory or vendor installed items and packages, requiring the purchase of additional options over and above the base vehicle as a condition of acceptance of order, providing aftermarket options where factory options are available without the Page 17 Page 91 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions consent of the purchaser, any misrepresentation of optional equipment or service as being factory that fails to meet the definition as described in this document, and any other practice deemed to be inconsistent with the intent of the contract. Any vendor presented with a valid purchase order consistent with vendor bid quotes or other agreed upon terms and pricing is required by this contract to accept such purchase order and deliver the product. Orders must be fulfilled if the item is a base model or whether it includes options. The vendor must deliver this product if they were awarded the contract — regardless of profit or loss. Failure to deliver the item may result in the purchaser seeking damages for the difference of cost to issue the exact same order with another vendor plus any legal fees and damages that may be incurred in the process to facilitate a completed order. Additionally, FSA may seek damages for nonpayment of administrative fees, to which FSA is entitled, according to Section 3.28 and any attorney's fees incurred in the recovery of these damages. 1.43 SEVERABILITY In the event any provision of this contract is held to be unenforceable for any reason, the unenforceability thereof shall not affect the remainder of the contract which shall remain in full force and effect and enforceable in accordance with its terms. 1.44 TERMINATION FOR CAUSE If through any cause within the reasonable control of the vendor, it shall fail to fulfill in a timely manner, or otherwise violate any of the terms of this contract, the FSA shall have the right to terminate the services remaining to be performed. Written notice of the deficiencies shall be given to the vendor and unless the deficiencies are corrected within 10 business days, the contract may be terminated for cause immediately. The right to exercise the option to terminate for cause shall be in the sole discretion of the FSA, and the failure to exercise such right shall not be deemed to constitute a waiver of this right. In that event, the FSA shall compensate the successful bidder in accordance with the contract for all services performed by the bidder prior to termination, net of any costs incurred by the FSA as a consequence of the default. Notwithstanding the above, the vendor shall not be relieved of liability to the FSA for damages sustained by the FSA by virtue of any breach of the contract by the vendor, and the FSA may reasonably withhold payments to the vendor for the purposes of offset until such time as the exact amount of damages due the FSA from the vendor is determined. 1.45 TERMINATION WITHOUT CAUSE The FSA can terminate the contract in whole or part without cause by giving written notice to the vendor of such termination, which shall become effective 30 calendar days following receipt by vendor of such notice. In that event, all finished or unfinished documents and other materials shall be properly delivered to the FSA. The vendor shall not furnish any product after it receives the notice of termination, except as necessary to complete the continued portion of the contract, if any. The vendor shall not be entitled to recover any lost profits that the vendor expected to earn on the balance of the contract or cancellation charges. Page 18 Page 92 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions Any payments to the vendor shall be only to the total extent of the FSA liability for goods or services delivered prior to the date of notice to terminate the contract. 1.46 CONTRACT ADVERTISMENT AND USE OF FSA LOGO The CPP logo is an official logo of the Florida Sheriffs Association designed to promote the program. The logo may be used by vendors in accordance with this policy. Use of the logo is limited to the original version received from the FSA. Modifications are not permitted. Methods of use include, but are not limited to: • Electronic mediums such as websites, digital marketing campaigns, social media and e-mail; or • Print media such as forms, marketing campaigns, business cards, posters, banners, brochures, flyers and postcards. Vendors may request the logo by contacting ,€.:.,,,,?..,,,,z,,Yr,1,,};;,;,l,;,,f`,Yr,��,.,x„iK,,,,, and should include a brief description of how the vendor intends to use the logo. The official FSA sheriff's star and wreath logo may not be used without prior written permission. Page 19 Page 93 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions 2.0 BIDDER INSTRUCTIONS 2.01 QUALIFICATION Bidders are required to complete the qualification packet as part of the bid submission. A bidder becomes a qualified bidder if they comply with this section and Section 2.11, Mandatory Pre -Bid Meeting. ualification Packet information reauired for bid aualification include: • Qualification form o Contact Information o Business Profile o References o Disqualifications & Defaults o Warranty Service Plan Attestation o Emergency Technician Attestation • State compliance attestations o E -Verify o Drug -Free Workplace o Workers Compensation o Motor Vehicles Dealer and Brokers license • Federal compliance attestations o Certification Regarding Debarment and Suspension o Certification Regarding Lobbying • Contract Signature Form • Insurance Checklist 2022 o Certificates of Insurance due by September 26' for awarded vendors The qualification packet is located on the bid system. 2.02 LICENSING AND FACILITIES Bidders are required to possess a Florida Motor Vehicle Dealer's License in order to bid on any motor vehicle. Bidders must maintain a repair facility within the State of Florida to provide warranty service for the items bid. If bidders do not have a facility, the bidder must be able to assist purchasers in obtaining warranty work as authorized by the manufacturer. If a bidder does not maintain a facility within the State of Florida, the bidder must have a plan as to how the bidder would service Florida purchasers if awarded the contract. This warranty service plan must demonstrate that the warranty work will be timely and satisfactorily performed and should include: • Whether the warranty service provider is approved by the manufacturer; • If the bidder plans to contract out for service, a copy of the service agreement; and • Zone specific service plans to include: o Response time to initial call from purchaser, o Number of personnel available to service the contract, o Qualifications of personnel providing warranty work, and o Any additional information that would detail how warranty service would be provided. Page 20 Page 94 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions The sufficiency of the Warranty Service Plan may be evaluated by the FSA. The FSA reserves the right to request additional information from a bidder regarding the facility during the solicitation and the term of the contract, if awarded. The FSA may also exercise discretion in examining such facility as deemed necessary. 2.03 INSURANCE AND INDEMNIFICATION Vendor shall be fully liable for the actions of its agents, employees, partners, or third party suppliers and shall fully indemnify, defend, and hold harmless the Florida Sheriffs Association, the participating agencies, and their officers, agents, and employees from suits, actions, damages, and costs of every name and description, including legal counsels' fees, arising from or relating to personal injury and damage to real or personal tangible property alleged to be caused in whole or in part by bidder, its agents, employees, partners, or third party suppliers; provided, however, that the bidder shall not indemnify for that portion of any loss or damages resulting directly from the negligent acts or omissions of the Florida Sheriffs Association and participating agencies or proximately caused by intentional wrongful acts or omissions of the Florida Sheriffs Association and participating agencies. Vendor's obligations under the above paragraph with respect to legal action are contingent upon the Florida Sheriffs Association and/or participating agencies giving the bidder (1) written notice of any action or threatened action, and (2) the opportunity to take over and settle or defend any such action at bidder's sole expense. Vendor shall not be liable for any cost, expense or compromise incurred by the Florida Sheriffs Association, or participating agencies, in any legal action without bidder's prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed. The Insurance Checklist summarizes the bidder's insurance coverage obligations, if awarded. Certificates of Insurance, evidencing such coverages and endorsements as required herein, shall be provided no later than five business days prior to the contract award date. The vendor may not begin performance under the contract until such Certificates have been approved by the FSA. The certificate must state Bid Number and Title. FSA must be named as an additional insured for the duration of the contract. The vendor shall maintain comprehensive general liability insurance and general aggregate insurance in the amount and coverage levels specified on the Insurance Checklist. The vendor shall specifically and distinctly assume, and does so assume, all risks of damage or injury to property or persons used or employed on or in connection with the work and of all damage or injury to any person or property wherever located, resulting from any action or operation under the contract or in connection with the work. It is understood and agreed that at all times the vendor is acting as an independent contractor. The vendor shall be responsible for the work and every part thereof, and for all materials, tools, appliances and property of every description, used in connection with this particular contract. The vendor at all times during the full duration of work under this contract, including extra work in connection with this contract, shall meet the requirements of this section. The vendor shall maintain automobile liability insurance including property damage covering all owned, non - owned, hired and scheduled automobiles, when used in connection with the delivery or service of this contract. The vendor shall maintain insurance to cover garage operations in the amount specified on the Insurance Checklist when the garage is used to complete work on this contract. Page 21 Page 95 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions All insurance policies shall be issued by companies authorized to do business under the laws of the State of Florida and these companies must have a rating of B+ or better per the AM Best Rating. FSA required insurance coverages must be maintained through the duration of the contract. Upon expiration of the required insurance, the vendor must email updated certificates of insurance for as long a period as any work is still in progress. No change or cancellation in insurance shall be made without 30 calendar days written notice to the FSA. It is understood and agreed that all policies of insurance provided by the vendor are primary coverage to any insurance or self-insurance the FSA possesses that may apply to a loss resulting from the work performed in this contract. All policies issued to cover the insurance requirements herein shall provide full coverage from the first dollar of exposure. The liability insurance coverage shall extend to and include the following contractual indemnity and hold harmless agreement: The vendor hereby agrees to indemnify and hold harmless the FSA, a 501(c)3, its officers, agents, and employees from all claims for bodily injuries to the public and for all damages to the property per the insurance requirement under the specifications including costs of investigation, all expenses of litigation, including reasonable legal counsel fees and the cost of appeals arising out of any such claims or suits because of any and all acts of omission or commission of any by the vendor, his agents, servants, or employees, or through the mere existence of the project under contract. The foregoing indemnity agreement shall apply to any and all claims and suits other than claims and suits arising out of the sole and exclusive negligence of the FSA, its officers, agents, and employees, as determined by a court of competent jurisdiction. The vendor will notify the insurance agent without delay of the existence of the Hold Harmless Agreement contained within this contract, and furnish a copy of the Hold Harmless Agreement to the insurance agent and carrier. The vendor will obtain and maintain contractual liability insurance in adequate limits for the sole purpose of protecting the FSA under the Hold Harmless Agreement from any and all claims arising out of this contractual operation. The vendor will secure and maintain policies of third -party suppliers. All policies shall be made available to the FSA upon demand. Compliance by the vendor and all third -party suppliers with the foregoing requirements as to carrying insurance and furnishing copies of the insurance policies shall not relieve the vendor and all third -party suppliers of their liabilities and obligations under any section or provisions of this contract. Vendor shall be as fully responsible to the FSA for the acts and omissions of the third -party suppliers and of persons employed by them as they are for acts and omissions of persons directly employed by the vendor. The FSA can request and the vendor shall furnish proof of insurance within seven calendar days of receipt of the written request from FSA. Should the vendor fail to provide acceptable evidence of current insurance during the contract term, the FSA shall have the right to consider the contract breached and justifying the termination thereof. If bidder does not meet the insurance requirements; the FSA may consider alternate insurance coverage. 2.04 SPECIFICATIONS Page 22 Page 96 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions All items covered by this contract and the specifications shall be the manufacturer's current basic production model, and shall, as a minimum, be equipped with all standard factory equipment in accordance with the manufacturer's latest literature unless otherwise noted in the bid system or FSA base specification. If awarded, bidders must supply an item that either meets or exceeds all the requirements included in the applicable specifications. The bid specifications are contained in the FSA bid system, may be requested from FSA and are retained within FSA's archive. As part of the bid submission, all bidders will be required to provide information confirmation that the item bid meets the base specification or may have their bid rejected. Failure of a bidder to comply with these provisions will result in bidders being held responsible for all costs required to bring the vehicle into compliance with the contract specifications. FSA develops the specifications with subject matter experts and publicly available information. However, FSA does not have access to full details from the manufacturer and relies on bidders to assist in this process. Bidders should immediately notify the FSA of any inaccuracies in the specifications. All notifications of inaccuracies must be in writing. 2.05 FIXED PRICES If the bidder is awarded a contract under this Invitation to Bid, the prices quoted by the bidder at the time of bid submission shall remain fixed and firm during the term of this contract, unless otherwise addressed in a contract extension or price adjustment as provided herein. 2.06 DISCOUNTS Discounts listed in FSA22-VEL30.0 Pursuit, Administrative and Other Vehicles, and FSA22-VEH2O.0 Heavy Vehicles and Buses bids shall be below Manufacturer's Standard Retail Pricing (MSRP) or manufacturer's published list price for any item and options. The vendor has the authority to offer additional discounts based on quantity, as well as additional manufacturer or vendor discounts. Discount ranges are not permissible. Discounts must be a whole, positive percentage with no decimal place (e.g. 10%). 2.07 SEALED BIDS For purposes of this solicitation, a sealed bid is considered a bid submitted using the FSA bid system. 2.08 EXCEPTIONS Any requested exceptions, deviations, or contingencies a bidder may have to the terms and conditions must be documented in bidder's submission. Exceptions to the item specifications at the time of the bid submission shall reference the item number, make and model. FSA has the discretion to grant or deny, in whole or in part, the bidders requested exception, deviation or contingency to the specifications or terms and conditions. Bidder acknowledges that if FSA rejects the proposed exceptions, the bid may be disqualified. W11WUTILIIIF:1IN061 Bidders are expected to examine the item specifications, delivery schedules, bid prices and all information pertaining to servicing this contract before submitting a bid. Failure to do so will be at the bidder's risk. Page 2 3 Page 97 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions 2.10 EQUIVALENTS Prior to the opening of the bid system, bidders may request item equivalents. The bidder must submit the manufacturer name and model number (or product identifier) of each equivalent requested to FSA. Complete, descriptive, technical literature should demonstrate that the equivalent conforms with specification. If a bid uses equivalents without prior approval, the bid may be disqualified. 2.11 MANDATORY PRE-BID MEETING Prospective bidders are required to attend or participate in the mandatory Pre -Bid Meeting. The Pre -Bid Meeting is designed for vendors, the Fleet Advisory Committee and the FSA to clarify questions on the terms and conditions and to confirm all item specifications. Questions relating to the items, specifications, the bid process, or award can be asked at the Pre -Bid Meeting. Bidders have the opportunity to suggest technical modifications or corrections before the item specifications are finalized. FSA reserves the right to grant attendance exceptions to the mandatory meeting if the bidder has requested authorization, signs a memo to agree to meet all the terms and conditions without exception and further waives their right to protest the bid process in its entirety or any portion thereof. 2.12 PRICES QUOTED Prices submitted as indicated in the sealed bid are final. Bidders acknowledge that prices quoted will be valid for a period of sixty (60) calendar days from the date of bid opening. Each item, make, and model must be priced and bid separately. Prices quoted in the bid submission should reflect the final amount the bidder can expect to receive for payment for the items bid for the duration of the contract, unless otherwise provided in the contract. These prices must be inclusive of all of the components included in the base specification. Once awarded, the vendor has the authority to offer discounts for prompt payment. Cash or quantity discounts offered will not be a consideration in determination of award of the bid. Prices bid, including options, must include the administrative fee FSA charges to administer the contract, as outlined within these terms & conditions. The administrative fee is three quarters of one percent (.0075). Prices must be Free On Board (FOB) destination. 2.13 OPTION PRICING FSA requests vendors include most frequently purchased scheduled, factory and aftermarket options in the bid system. The bidder shall offer a discount below Manufacturer's Standard Retail Pricing (MSRP) or manufacturer's published list price for any options included in the bid submission and quotes to purchasers, if awarded. Discounts can be provided beyond option prices listed in the contract. The additional discounts for each option shall be decided by the bidder. The FSA has the discretion to disqualify bidders if the option pricing is excessive or if options listed are not available for the item bid. Options are intended to add or delete equipment or features from the base specification. Options can provide an upgrade or downgrade to a manufacturer's model, such as a slightly different engine size or horsepower, and should not be made available for purchase separate from the base item. Bidders shall NOT use options to create an item that is available as another item bid on this ITB. The use of options to facilitate the sale of an alternate manufacturer's product which is outside the scope of the base specification will be determined nonresponsive and Page 24 Page 98 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions the bid will be rejected in whole or part by the FSA. Bidders must disclose which options require the purchase of other options or are dependent on another option in their bid submission. Option pricing will include all costs of labor associated with the option and cost of labor should not be listed separately. Bidder must use proper manufacturer codes for all factory options. Options available through the factory should be bid and supplied to purchaser as "factory" options, unless otherwise requested in writing by the purchaser. Factory package options are allowable under this contract. Factory package options included in the bid submission must detail what components the package includes. If a bidder will offer registration and title services as a fee for service, the bidder must include the administrative fee as a separate option (i.e. line item) for each item bid. Government imposed fees should not be included in this option pricing. If the bidder wishes to offer credit to the purchaser for an option that is standard on the FSA base specification, the bidder should include the word "Credit" at the beginning of the description field, and continue to describe the option being credited. For example, "Credit: one key fob" and enter the price the bidder will credit the purchaser. For purposes of this bid, Emergency Lights and Sirens will require a separate pricing sheet and option upload in the bid system. Section 2.14 contains specific instructions and exceptions for emergency lights and sirens. �iLY•�IUhI:Z!'��IQ[1Y�11[!'�OYKy.�Q11iy1.»IQ Under Florida Statute 316.003(1), authorized emergency vehicles are defined as: "Vehicles of the fire department (fire patrol), police vehicles, and such ambulances and emergency vehicles of municipal departments, public service corporations operated by private corporations, the Fish and Wildlife Conservation Commission, the Department of Environmental Protection, the Department of Health, the Department of Transportation, and the Department of Corrections as are designated or authorized by their respective departments or the chief of police of an incorporated city or any sheriff of any of the various counties." Bidders that will provide or contract to provide emergency light and siren installation must only use installers that possess a current Emergency Vehicle Technician Certification, or an approved equivalent. FSA may request certificates for a vendor's installers at any time during the contract term. Labor may be charged for the installation of emergency lights and sirens. Labor rates must be disclosed as part of the bid submission. Bidders may not charge for labor for vehicles that are manufactured with emergency lights and sirens, including motorcycles. Prices submitted for emergency lights and sirens shall include all applicable government -imposed fees. Bidders that install emergency lights and sirens are required to provide and install products that are Society of Automotive Engineers (SAE) certified. SAE Certifications must include Class 1, Class 2 and Class 3 in order to be eligible for participation in the contract. If a lighting or siren product installed on an emergency vehicle is not SAE Certified, the vendor can be found in default of the contract. Bid Submission of Emergency Lights and Sirens If offering emergency lights and sirens, bidders will be asked to provide pricing by submitting a pricing sheet. An emergency vehicle lights and siren option pricing template is offered in the bid system. Bidders are encouraged, but not required to use the template. If item or specification group is helpful to display light and siren options, bidders may categorize the pricing sheet by item group. Page 2 5 Page 99 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions Items listed below are required for the submission of the pricing sheet: • Order code • Description to include manufacturer • Price (part only) • Estimated labor hours • Labor cost per hour 2.15 SUBMITTAL OF BID Bidders must submit a bid electronically using the bid system. Bid submissions include pricing for the base specification, option descriptions and pricing, and any applicable lighting/siren pricing, as well as required documentation. The bid must be received by the date and time specified on the Bid Calendar seen in Appendix B. Failure to meet all submission requirements by the date indicated on the Bid Calendar will result in rejection of the bid. Bid System: VendorLink The bid system is located atI r i n a �nF:�nF ..f:.1.`.7.i=�..x.l...l..l.!.a.l`...c(,:� i'n. Bidders are encouraged to participate in training provided. Usernames and passwords will be issued to bidders after registering in the bid system. Contact VendorLink at support@evendorlink.com if technical issues arise during bid submission. Prices are to be rounded to the nearest whole dollar. If a bidder submits bid pricing using cents, the following formula will be applied: $.01-.49 will be rounded down to the dollar bid (e.g., $50.49 = $50) and $.50-.99 will be rounded to the next dollar (e.g., $50.50 =$51). Bid Submission To ensure correct bid submittal and formatting, bidders shall: Input a bid price for each item by zone. Upload files as instructed in the bid system; files requested will be in Excel or .pdf. Follow all instructions outlined in this ITB and provide all requested information. The bid shall include the following documents: • Executed Qualifications Packet. • Build sheet for each item bid as a single .pdf • Pricing Sheet for Emergency Vehicle Lights and Sirens, if applicable. • Any requested exceptions or equivalents. Option Upload An option sheet should be submitted for each item bid. The bid system will accept option information for each item through a .pdf file upload. Each option sheet should include a header to identify the FSA contract title and number, the bidder name, item number, make and model. Information required for the bid submission must comply with the terms and conditions. Each option sheet should include: • Manufacturer order code Description Price Bidders may also choose to add MSRP and the discount offered to their option pricing sheet. If option pricing is not uploaded correctly, FSA may require bidders to correct the issue, but bidders may not modify the price. Page 26 Page 100 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions FSA may ask awarded bidders to supply one hard copy set with digital signatures and original compliance forms, prior to the contract execution. Hard copy bids should not be submitted unless specifically requested by FSA. FSA is not responsible for bidder's improper use of the bid system. Exceptions will be granted to this section should any bid system malfunctions occur. Bidders may bid in one or more geographic zones. The zone map is included in Appendix A. Bidders must submit pricing for each zone they wish to be evaluated. 2.17 EXECUTION OF BID By submitting a response to this Invitation to Bid, the bidder agrees to the terms and conditions of this contract and to be bound by such terms and conditions if selected for award. The bidder must submit the Contract Signature Form with the signature of an authorized representative no later than the bid submittal due date. All terms and conditions are applicable throughout the term of the contract and not specific to any given year, make or model. Page 2 7 Page 101 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions 2.18 MODIFICATION OR WITHDRAWALS OF BIDS A bidder may submit a modified bid to replace all or any portion of a previously submitted bid until the due date and time of the bid submission listed in the Bid Calendar. Modifications received after the bid due date and time will not be considered. Bids can be withdrawn in writing prior to the contract award. If a bidder must withdraw the bid, the bidder must contact FSA immediately. Bid withdrawals are handled on a case-by-case basis, and can result in a limitation of participation in future bids. ►.SLG W."'V N9111 .1 The responsibility for submitting a bid before the due date and time on the bid calendar is solely and strictly the responsibility of the bidder. The FSA is not responsible for delays caused by technical problems, any internet outages or delays incurred by electronic delivery, or any other occurrence. Any reference to time will be based on Eastern Time. 2.20 BID OPENING Bids shall be opened on the date and time specified on the Bid Calendar. The bid opening may occur at the Florida Sheriffs Association, 2617 Mahan Drive, Tallahassee, Florida, or may be offered online. FSA will provide a bid inspection period for bidders following the bid opening. The date, time and duration will be announced prior to the bid opening. �•Ti�17DIlY�I.�U11Q/.11Y[�]Q[�1�.»[.91�]Q[.y��hlQh[.Y.� Determination of responsiveness will take place at the time of bid opening and evaluation. In order to be deemed a responsive bidder, the bid must conform in all material respects to the requirements stated in the contract. As set forth in Section 2.26, FSA reserves the right to waive or allow a vendor to correct minor irregularities. 2.22 RESPONSIBLE BIDDER CRITERIA Bids will be evaluated to determine if qualifications and contract requirements are met. Responses that do not meet all requirements of this Invitation to Bid or fail to provide all required information, documents or materials may be rejected as nonresponsive. Bidders whose responses, past performance, or current status do not reflect the capability, integrity, or reliability to fully and in good faith perform the requirements of the contract may be rejected as non -responsible. In determining a responsible bidder, the following factors may be considered: • Adequacy of facilities, staffing, and financial resources; • Previous experience with FSA contract or other similar government contracts; • Ability to provide excellent customer service, including previous FSA contracts; and • Any other information relevant to the responsibility of a vendor that FSA is aware of. In addition to the requirements of set forth by these Terms & Conditions, FSA reserves the right to request staffing, performance and financial information from any bidder during the evaluation process. Page 28 Page 102 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions FSA reserves the right to determine which responses meet the requirements, specifications, terms and conditions of the solicitation, and which bidders are responsive and responsible. FSA further reserves the right to limit participation of bidders who, in FSA's sole discretion, are determined to present responsibility concerns that call into question the bidder's ability to perform but that do not rise to the level of requiring rejection of the bidder as non -responsible. 2.23 BASIS FOR AWARD The FSA shall make awards to the lowest bidder by item, by manufacturer, and by zone to bidders deemed to be responsive and responsible. Awards may also be made to the second and third lowest bidders by item, by manufacturer and by zone, and determined to be in the best interest of the FSA and the purchaser. FSA has the discretion to consider option pricing in making the award. Awards will not be given to any parties listed on the government wide exclusion in the System for Award Management. See Appendix D, II to 2 CFR Part 200. FSA reserves the right to accept or reject any and all bids, and to waive any minor irregularity, technicality or omission if it determines that doing so will serve the purchaser's best interest. 2.24 FIRM BID Bidder warrants by virtue of bidding it is submitting a firm bid and the prices quoted in their bid response will be good for an evaluation period of sixty (60) calendar days from the date of bid opening, and if awarded, through the duration of the contract unless otherwise addressed by a contract extension or price adjustment as provided in this contract. By virtue of the bid submission, bidder acknowledges its obligation to sell items in all zones for which it is awarded. Failure of the bidder to comply with these requirements may result in the imposition of liquidated damages of up to $1,000 per item, which amount the vendor agrees is reasonable, or probation, suspension, termination or a combination thereof from current and future bids at the FSA's discretion. 2.25 BID TABULATIONS The Bid Tabulation report will be posted on the FSA Cooperative Purchasing Program website after the bid submission closes. If there is a delay in posting the bid tabulation results, FSA will post a notice of the delay and a revised date for posting of results. 2.26 MINOR IRREGULARITIES/RIGHT TO REJECT The FSA has the right to accept or reject any and all bids, or separate portions thereof, and to waive any minor irregularity, technicality or omission if the FSA determines that doing so will serve its best interest or the best interest of the purchasers. A minor irregularity is a variation from the terms and conditions of this procurement that does not affect the price of the bid or give the bidder a substantial advantage over other bidders and thereby restrict or stifle competition and does not adversely impact the interests of the FSA or the purchasers. At its option, the FSA may allow a bidder to correct minor irregularities but is under no obligation to do so. In doing so, the FSA may request a bidder to provide clarifying information or additional materials to correct the irregularity. Page 29 Page 103 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions However, the FSA will not request and a bidder may not provide the FSA with additional materials that affect the price of the bid, or give the bidder an advantage or benefit not enjoyed by other bidders. The FSA may also reject any bids not submitted in the manner specified in this document. 2.27 CONE OF SILENCE This Invitation to Bid is subject to the Cone of Silence that begins the date the bid submission opens through the intent to award date as indicated in the Bid Calendar. During this period, all communications regarding this solicitation between FSA and Bidder will cease, except for procedural questions, questions regarding problems incurred in the use of the bid system, or communications initiated by the FSA. All permitted communications during this period shall be made in writing to the t contacts identified in Section 1.01 of this ITB. Page 3 0 Page 104 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions 3.0 CONTRACT CONDITIONS 3.01 GENERAL REQUIREMENTS Once the bid has been awarded, the terms and conditions of this document become the contract between the FSA and the awarded vendor. The terms and conditions apply to all items purchased from this contract. 3.02 STATEMENT OF AUTHORITY Each person signing the contract warrants that they are duly authorized to do so and binds the respective party to the contract. 3.03 VENDOR CONTACT INFORMATION The vendor shall maintain current contact information with FSA at all times for sales and submission of purchase orders, quarterly reports and administrative fee payments. If a change occurs during the contract, the vendor must notify FSA immediately. 3.04 ADDITIONS OR DELETIONS FSA reserves the right to add or delete any items from this bid or resulting contract when deemed to be in the best interest of FSA and purchasers, at its discretion. This decision to take action may be based upon and not limited to few or no sales, product recalls and other safety issues, vendor or manufacturer performance, or the product's lack of relevance. 3.05 CONTRACT EXTENSION Contract Extension The contract may be extended by mutual agreement for up to two (2) additional years, on a year-to-year basis. FSA reserves the right to execute a contract extension or to allow the contract to fully or partially terminate and readvertise for bids, whichever is in the best interest of FSA. The vendor may request price adjustments for contract extensions as provided for herein. If no request is received from the vendor, the FSA will assume that the vendor has agreed that the optional term may be exercised without a price adjustment. Any adjustment request received after the execution of an extension may not be considered unless otherwise provided for in this contract. Month -to -Month Continuation In the event a new contract is not active at the time of this contract's expiration, this contract's terms and conditions shall extend on a month-to-month basis and shall not constitute an implied extension of the contract. Such a month-to-month continuation shall be upon the compensation and payment provided herein. 3.06 PRICE ADJUSTMENT This contract provides the following options for price adjustments: • Annual Price Adjustments • Changes to Manufacturer Production or Design Page 31 Page 105 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions Manufacturer Certified Adjustments Equitable Adjustments Price adjustment requests must clearly substantiate a need to increase or decrease the price. Price adjustments will not be considered if vendors are delinquent on administrative fee payments or have outstanding quarterly reports. Annual Price Adjustment The FSA may consider annual price adjustments due to: • Changes in the Producer Price Index (PPI) as published by the U.S. Department of Labor, Bureau of Labor Statistics (BLS); or • As a result of changes to national or state standards that require substantial price adjustments. FSA may consider other documentation related to the change to national or state standards, but is not obligated to grant price changes without literature from the manufacturer. The FSA will consider the request and will make a final determination on the change in price. Changes to Manufacturer Production or Design Significant changes by the manufacturer to the production of and specification design may initiate a price adjustment request. FSA will consider order dates, production factors, model year, or other conditions, as well as the replacement or complete redesign of items. Vendors must provide documentation from the manufacturer. Manufacturer Certified Adjustments Vendors must provide documentation from the manufacturer to FSA that shows a legitimate need for price adjustments. Equitable Adjustments The FSA may make an equitable adjustment to the contract terms or pricing at its discretion. 3.07 CONDITIONS It is understood and agreed that any item offered or shipped as a result of this contract shall be the most current model offered. 3.08 PRODUCTION CUTOFF Vendors shall notify the FSA in writing no less than sixty (60) calendar days prior to the close of final order date by the manufacturer when the final order date is during the term of the contract. Purchase orders received by the vendor ten (10) business days prior to the final order date must be accepted and entered into the order system with the manufacturer. Purchase orders issued and received after the production cutoff date will be subject to availability. In this case, the vendor and manufacturer have the discretion whether to choose to provide next year's model at current year's prices until the end of the contract term. If the manufacturer cutoff date is during the term of the contract and will affect the purchaser's ability to obtain the items, FSA may consider substitutions from the same manufacturer. Page 3 2 Page 106 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions 3.09 FACILITIES The FSA reserves the right to inspect the vendor's facilities at any time with prior notice. 3.10 PURSUIT RATED VEHICLES & MOTORCYCLES Vehicles in this category have been reviewed by one or more of the nationally recognized authorities on Police Vehicle Testing Program/Evaluation. These evaluations are not designed to recommend a particular product, but to serve as a resource for vehicles which are currently being offered for law enforcement service. To see the full detailed report, click or copy the links below. At the time of the bid there were two nationally recognized authorities: g 'i rDCJr�irrrr f �l it ing (,Jeri% si�ri��,;, ()f� f\/liE�l.l.rii„ rir, ��.I�rir��l��. V;;�.r�i 1��.�f„i rr (rf� il�r��,:. f\/liE��l�ri;,„ rir `�i�li,.�. f��xhE��, f\/I,�f�. @ (:)sin�,MkDs 0:)unN Shel iff„s f erz i ti,r ent k..aw E nfcri cei, neint Veh'kr kD [estand E rrPrluatirrrr F"i ()rxi ai,n 3.11 SPECIAL SERVICE VEHICLES Vehicles in this category have been reviewed by one or more of the nationally recognized authorities on pursuit vehicle testing program/evaluation. These vehicles are labeled as Special Service Vehicle (SSV) and often used in public safety applications and other areas of government. Refer to manufacturers published information for detailed information regarding these vehicles. �ii�.X11.�:Z.1Q11Z110/.[.Y.y[.y11�;Z110/.[.9D[.� Vendors performing upfitting of cab and chassis should be licensed and certified to perform such work. Vendors are responsible for tag and title work if the chassis is completed by the vendor or the vendor's contracted third - party supplier. The requirements of Florida Statute 319.21 related to the manufacturer statement of origin apply to cab and chassis purchases. Cab and chassis may be purchased from the vendor without any required additional upfitting by the vendor. Vendors are not responsible for tag and title if an incomplete chassis is requested and sold to the purchaser. 3.13 FACTORY -INSTALLED OPTIONS All options specified as factory -installed are to be installed on the item at the primary site of assembly and is to be the manufacturer's standard assembly -line product. Aftermarket and vendor -installed equipment will not be accepted as factory -installed. Vendors found supplying aftermarket or vendor -installed equipment where factory - installed are specified shall be required to retrieve all delivered items and supply new items meeting the specifications. All factory -ordered options are to be original equipment manufacturer (OEM) and installed at the primary site of assembly unless otherwise noted by the vendor and acknowledged in writing by the purchaser. Verbal agreements will not be recognized. Page 3 3 Page 107 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions 3.14 VENDOR -INSTALLED OPTIONS All vendor -installed accessories, equipment, or options shall be installed according to the manufacturer's specifications. All vendor -installed options must be manufactured by an established manufacturer of the product provided. Vendors are required to disclose make and model of product being offered, design, and model must be approved by the purchaser prior to installation. Prior to any purchase, the vendor must also disclose the warranty of any accessory, equipment or option that is less than or exceeds the factory or equipment warranty coverage. Any vendor that violates this provision will be considered in default of the contract. FSA may terminate the contract in accordance with these terms & conditions. 3.15 NON-SCHEDULED OPTIONS A non-scheduled option is an option not listed on the FSA published award. Vendors may provide non-scheduled options at less than MSRP or the Published List Price. Non-scheduled options should be identified and listed as a separate line item with the price and discount on the purchase order. Non-scheduled options are covered under these terms and conditions. 3.16 FORCE MAJEURE A vendor shall not be penalized for a delay resulting from the vendor's failure to comply with delivery requirements if neither the fault nor the negligence of the vendor or its employees contributed to the delay and the delay is due directly to acts of God, wars, acts of public enemies, strikes, fires, floods, or other similar cause wholly beyond the vendor's control, or for any of the foregoing that third party suppliers if no alternate source of supply is available to the vendor. cANFAKIMMIN:1 To initiate a purchase, a purchase order must be issued to the vendor, which includes: • FSA contract title and number; • FSA item number, and the make and model or item description; and • Purchaser name, phone number and email address. The vendor's acceptance of a purchaser's order will indicate that the vendor agrees to deliver an awarded item that will be fully compatible with all of its options. Production schedules and delivery dates should be discussed at the time the quote is provided to the purchaser, or if no quote is provided, when the purchase order is delivered to the vendor. Vendor shall place the order with the manufacturer within 10 business days of receipt of the purchase order. The vendor shall assure that all orders are placed in full compliance with the specifications and the terms and conditions of the contract and the purchase order. Any changes that are required to bring an item into compliance with the various options due to an incorrect order will be accomplished at the vendor's expense. A Confirmation of Order form shall be completed by the vendor and provided to the purchaser and FSA fifteen (15) calendar days from receipt of purchase order without request by the purchaser. Any additional information needed to complete this form should be obtained by the vendor from the purchaser. While it is recommended that an agency purchase from the zone which is closest to their location, it is not mandatory to do so. If the purchaser determines that a vendor in another zone can better serve the purchaser's needs, the purchaser may order from a vendor in another zone. Vendors that provide awarded items outside of an awarded zone may upon mutual agreement between the vendor and the purchaser charge a delivery fee. Page 34 Page 108 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions If a vendor receives a purchase order for an item for which they were not awarded, the vendor must notify the purchaser and return the purchase order to the purchaser within three (3) business days. 3.18 REGISTRATION, TAG, AND TITLE Title items shall be the responsibility of the vendor. If the purchaser is a government agency, the purchaser has the right to choose to register and title the item. Costs of registration, tag and title shall not exceed the statutory rates. FSA administrative fee does not apply to the cost of registration, tag and title. CALL 171111WN117411 Vendors are to inspect the item to confirm the item meets or exceeds the FSA base specification, manufacturer specification, and purchase order. Deliveries not complying with these requirements may be rejected and will have to be redelivered at vendor's expense. Delivery shall be within the normal working hours of the user, Monday through Friday, excluding holidays. Delivery schedules shall be agreed to by the purchaser and the vendor. Vendor shall notify the purchaser no less than twenty-four (24) hours prior to delivery of the time and location, which shall reflect the mutually agreed upon delivery details. The vendor shall be responsible for delivering items that are properly serviced, clean and in first class operating condition. Items shall be delivered with each of the following documents completed or included: 1. Copy of the purchase order. 2. Copy of the FSA base specification. 3. Copy of manufacturer's Invoice, price sheet, build sheet or other documentation that verifies what components are included on the item being delivered 4. Copy of the pre -delivery service report 5. Registration warranty certification 6. Owner's manual 7. Registration, tag and title or an application for the registration, as applicable All items with fuel tanks of thirty-five (35) gallons or less must contain no less than one quarter (1/4) tank of fuel as indicated by the fuel gauge at the time of delivery. For items that have more than thirty-five (35) gallons, a minimum of one eighth (1/8) of a tank of fuel must be provided. The purchaser has the option to reject a vehicle with more than 350 odometer miles, or may deduct $0.51 cents per mile in excess of 350 miles from the invoice, unless distance above 350 miles was previously approved by the purchaser. Deliveries of less than 350 miles may be accomplished by driving the vehicle. Any delivery accomplished by driving the vehicle must be supervised and the driver must comply with manufacturer's break-in requirements and all applicable traffic laws. Any delivery accomplished by driving a pursuit -rated vehicle must use an "OUT OF SERVICE" cover on light bars. Deliveries in excess of 350 miles shall be made by transport, or otherwise approved by the purchaser, however, this requirement shall not apply to incomplete chassis. Items with hour meters must be delivered with fewer than five (5) hours on the hour meter or may be rejected by the purchaser. The purchaser may choose to negotiate a lower purchase price when the item exceeds five (5) hours. When items require service or adjustments upon delivery, the vendor shall either remedy the defect, or be responsible for reimbursing the manufacturer's local authorized representative or other service provider to remedy the defect. Such service or adjustments shall be initiated by the vendor within 48 hours after notification Page 3 5 Page 109 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions by a purchaser, not to include weekends and holidays. Delivery will not be considered complete until all services or adjustments are satisfactory, and the item is redelivered or repaired. The cost of any transportation required to address the defect shall be the responsibility of the vendor until the items are satisfactory and accepted by the purchaser. 3.20 INSPECTION AND ACCEPTANCE Final acceptance shall be given only after the purchaser inspects or confirms the item meets contract specifications. Delivery of an item to a purchaser does not constitute acceptance for the purpose of payment. Inspection and acceptance will be at the purchaser's destination unless otherwise previously agreed upon location was provided in the purchase order. Should the delivered items differ in any respect from the item specifications, payment can be withheld until such time as the vendor completes the necessary corrective action. 3.21 INVOICING AND PAYMENTS Invoicing and payments shall be the responsibility of the vendor and purchaser placing orders using this contract. Vendors must invoice each purchaser independently. The vendor shall be paid upon submission of invoices to the purchaser after satisfactory delivery and acceptance of the items. The Local Government Prompt Payment Act will apply to ensure timely payment of vendor invoices. The Local Government Prompt Payment Act is defined in Sections 218.70-218.79 of Florida Statutes. All warranties shall begin at the time of delivery and final acceptance by the purchaser. The purchaser's warranty should not be active for incomplete items and items delivered to a third -party supplier before final delivery. 91PAM all W*smF.,k9lwe) IN11W1141 The vendor must submit electronic copies of purchase orders within fifteen (15) calendar days of the purchase order issue date. Emai s shall e sent to E �:�,,,, ��il`k�::}. L..Lr..k..„.,..,(:N..g. Purchase orders received by the vendor after this deadline must be submitted to FSA as soon as possible with the date received by the vendor and cause for the delay. Purchase orders should contain the following required information: • Purchaser name, • Purchase order number, • Purchase order issue date, • FSA contract title and number, • Item number, • Item make and model, or item description, • Item price, • Options by item, and • Estimated delivery date. Purchase orders vary in format and information provided. If a purchase order does not include the required information, the vendor must submit supplemental documentation to FSA at the same time the purchase order is due. Such information may be in bid quotes, equipment proposals, confirmation of orders, or other documents. If a purchaser does not use purchase orders, written communication from the purchaser to the vendor will be provided supplied to FSA. Page 3 6 Page 110 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions 3.24 QUARTERLY REPORTS Quarterly reports are the contractual responsibility of each vendor. Quarterly reports must be completed and submitted electronically. All quarterly reports shall be sent to 2 p(:)i 2)fl,shei iffr�o.�xi i:,. The quarterly report template shall be submitted using an Excel workbook provided by FSA. Quarterly reports which do not adhere to the required format or are not complete of all purchase orders received and/or deliveries made during the quarter will be returned to the reporting vendor for correction. Quarterly reports are due no later than the 15th day of the month following the end of the quarter. Quarterly reports shall follow the schedule below for the duration of the contract. If a contract extension is executed, the quarterly reports will maintain the same schedule for future reporting periods. Contract Year: October 1, 2022 — September 30, 2023 Year 1 Quarter 1: October 1— December 31 Q1 Report Due: January 15 Year 1 Quarter 2: January 1— March 31 Q2 Report Due: April 15 Year 1 Quarter 3: April 1—June 30 Q3 Report Due: July 15 Year 1 Quarter 4: July 1— September 30 Q4 Report Due: October 15 Quarterly reports must be submitted even if there are no sales or no deliveries in a quarter. If a vendor has no sales within a quarter, the vendor shall indicate "No sales this quarter" on the top row of the sales worksheet. If the vendor has no deliveries in a given quarter, the vendor shall indicate "No deliveries this quarter" on the top row of the delivery worksheet. FSA reserves the right to modify the procedure for submitting quarterly reports during the term of the contract. Such a change shall not materially modify the substance of the information to be reported, but may change the method by which future quarterly reports are to be submitted. In the event of such a change, FSA will provide written notice to all vendors of the method by which future quarterly reports are to be submitted. 3.25 ADMINISTRATIVE FEE The FSA charges three quarters of one percent (.0075) to procure, process and administer the contract. The administrative fees are the contractual responsibility of each awarded vendor. After receipt of payment from contract purchases, the vendor shall remit all administrative fees to the FSA no later than 15 calendar days after the end of each quarter. All fees payable to the FSA during any given quarter will be accompanied and supported by a quarterly report. The administrative fee will remain payable to FSA and no relief from payment of the administrative fee, nor any additional charge to recoup the administrative fee, will be permitted if a vendor fails to incorporate the administrative fee in its bid pricing. The administrative fee should never be listed as a separate line item on any purchase order or invoice. The administrative fee is based on the total purchase order amount of new items. This fee excludes any value given to purchasers for trade-ins. Trade-ins, extended warranties and other exchanges will not reduce or impact the fee calculation. Page 3 7 Page 111 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions The ACH form for electronic payment or wiring of funds is included in Appendix C. It is the preference of FSA that all payments be electronically paid and submitted. If ACH is not available, checks for the administrative fee can be sent to: Florida Sheriffs Association Cooperative Purchasing Program 2617 Mahan Drive Tallahassee, FL 32308 3.26 LIQUIDATED DAMAGES The vendor warrants that the item supplied to the purchaser shall conform in all respects to the standards set forth and the failure to comply with this condition will be considered as a breach of contract. Any liquidated damages levied because of inadequacies or failures to comply with these requirements shall be borne solely by the vendor responsible for same. Failure to submit the administrative fee with accompanying quarterly reports to FSA within 15 calendar days following the end of each quarter may result in the imposition of liquidated damages. Vendors failing to submit administrative fees and/or quarterly reports will incur liquidated damages in the amount of $25 for each calendar day that fees and reports are past due, beginning on the 16' day following the end of the quarter. If a civil action is initiated by the FSA to recover administrative fees or liquidated damages as set forth in this section, the prevailing party shall be entitled to its reasonable attorneys' fees and costs incurred in the litigation. The venue shall lie in the Circuit Court for the Second Judicial Circuit in and for Leon County, Florida. When quarterly reports are late, liquidated damages are to be included in vendor's Quarterly Report and administrative fee submission. Liquidated damages that remain unpaid beyond 45 calendar days can result in FSA, at its sole discretion, implementing contract compliance actions, including but not limited to, suspension, limited participation by specifications or zones, disqualification from future solicitations, or termination for cause pursuant to the Terms & Conditions. Schedule of Liquidated Damages Failure to submit quarterly report on time $25 per calendar day Failure to submit administrative fee on time $25 per calendar day Failure to report a Purchase Order to FSA within 15 calendar days of the purchase order issue date $100 per Purchase Order Failure to Report Sales .0075 of the sales price plus 1.5% each month following the delivery date. Vendor agrees and acknowledges that its failure to take any of the actions specified in the above schedule will result in liquidated damages to this contract. Vendor agrees and acknowledges that these liquidated damages are not intended to be and do not constitute a penalty and that these amounts are reasonably calculated to compensate the FSA for the damages that it will incur as a result of the vendor's failure to take the specified actions. Page 3 8 Page 112 of 971 Appendix A: Zone Map FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions FSA C.'ONTRAC."TZONE MAP' WES]'1:11IN C 1�,,ALJHOUN 1XI F, MCAM,131A l:l'-,'ANKLlN 11OLM ES 1A4AYFIA F, LEON LIBERFY M A [ )IS('1N MKA� 0()SA % N—A R(',,,S,% W A� [ FON 4 V i KULLA WARIUCit T] ()N CENTRA.I. IMF ,VAl'-,.D C11 , RUS Bi A,(")l'I o H A R I)F: I � lu; o iq�)o I k;IALANDS 'LSBOROU� V�lll pNDIAN IZ'11.111Z L4KFl IIA N Al F1: OKE FCAWBF: ORANG1 N `33Aq �01 K 1. U(, F Sl I V11NOLF, st"M 111:; P, NORTHERN BAKER BRSRI )FORD ( : LAY C01 I.AlBIA HAGLER f f:, H M S, I I A �Nl I Ll 0 N LEVY MA RN IN NASSAL ' P: I -FN I AM ST. nO N S S LTW A "; FF oBN)N �R01. US] A RV 11 DADE' PAAl BE, A(A SOUTH NORTITERN A30 Page 39 Page 113 of 971 .......... .......................... mmnrmk (TINI'RAU, . . ........................... SOUTH NORTITERN A30 Page 39 Page 113 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions Appendix B Bid Calendars l7 A2ZE1...3 aid if itis i lt, c niftii h� tiend.:. thel- Vehicles If^°1-l2 aid f -le 'II:, �itcMl1 BID CALENDAR ITEM DATE Bid Announcements 5/17/22 & 5/31/22 Voluntary Workshop for Interested Bidders on Pursuit Rated & Admin 5/4/2022 Voluntary Workshop for Interested Bidders on Heavy Trucks & Buses 5/5/2022 Mandatory Pre -Bid Meeting FSA22-VEL30.0 7/12/2022 Mandatory Pre -Bid Meeting FSA22-VEH2O.0 7/13/2022 FSA Bid System Training For Bidders 7/19/2022 Request for Clarifications Due to FSA 7/25/2022 FSA Response to Request for Clarifications 8/1/2022 Cone of Silence 8/4/22-9/16/22 Bid System Open 8/4/2022 Bid Submissions Due 8/25/2022 Public Bid Opening 8/26/2022 Bid Tabulations Posted 8/26/2022 Bid Evaluation 9/13-16/22 Intent To Award Posted 9/16/2022 Effective Date Of New Contract 10/1/2022 * FSA will complete the mandatory pre-bid meeting via ZOOM For the most up to date information, please refer to https://www.flsheriffs.org/law-enforcement- programs/cooperative-purchasing-program/bid-announcements * Details for the Workshop, Mandatory Pre -Bid Meeting, and Public Bid Openings will be posted on FSA's website, emailed to interested bidders, or can be found in Florida Administrative Register (as appropriate) for the dates published. Page 40 Page 114 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions Appendix C: ACH Payments M SUBJECT: R .. . . . .. ...... ... All CustDrneirs of the Ficricla sheriffs: Association Florida sheriffsAssociation is, going Ipapiadlessu our association is pleased to, aninouince the, implernentation of arceptiing, electronic payrnantss f rom custoirnef s. if Vour agency of, companyuus ably tis p2)r via A)CH, piesconsider adding the Florida sheriff's Association to your Illlist of vendors. paid 0a electronic payment. Florida; sheriffs, As-sociation'sBanking Illnformation is as, follaws- checking account capitallll city Bank Routing Number:: 063.100693 Aucouirit, Number: 0011S570GI Please ernail any payment reiirnitta,,Inc�e,information tD,alcc�ountiinggflllshe,r,iffs,.ac . If you choose to make ACIM payments to the association, there is no additional charge. However, the iiniftirmation abcive can Ibe used to Ipa°V with a wire, tramfer, if Va,,u choose to Ilpay via Mire, there is a charge cf'$25, per wire that, ya,,u YAI need to add toi your payment. If you have any questions at° all, piesse contact Trish Eldri4,e at, Leld rid, -, fisheriff sx, of, call 15,50) 559-556& Since,rely, Tr 87 �, h, E 12 Cr 2, dig e Director of Accounting and Finance Nbricla shieriffs Association Page 41 Page 115 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions Appendix D: Federal Clauses . APPLICABILITY OF THIRD PARTY CONTRACT PROVISIONS (excluding micro -purchases, except Davis -Bacon requirements apply to contracts exceeding $2,000) TYPE OF PROCUREMENT PROVISION Professional Operations/ Rolling Stock Construction Materials & Services/A&E Management Supplies Purchase No Federal Government Obligations to Third Parties All All All All All (by Use of a Disclaimer) False Statements or Claims Civil and Criminal Fraud All All All All All Access to Third Party Contract All All All All All Records Changes to Federal Requirements All All All All All Termination >$10,000 if >$10,000 if >$10,000 if >$10,000 if >$10,000 if 49 CFR Part 18 49 CFR Part 18 49 CFR Part 18 49 CFR Part 18 49 CFR Part applies. applies. applies. applies. 18 applies. Civil Rights (Title VI, ADA, EEO All All All>$10,000 All All except Special DOL EEO clause for construction projects) Special DOL EEO clause for >$10,000 construction projects Disadvantaged Business All All All All All Enterprises (DBEs) Incorporation of FTA Terms All All All All All Debarment and Suspension >$25,000 >$25,000 >$25,000 >$25,000 >$25,000 Buy America >$100,000 >$100,000 >$100,000 As of Feb. 2011, As of Feb. 2011, As of Feb. 2011, FTA has not FTA has not FTA has not adopted the FAR adopted the FAR adopted the FAR 2.101 $150,000 2.101 $150,000 2.101 $150,000 standard. standard. standard. Resolution of Disputes, Breaches, >$100,000 >$100,000 >$100,000 >$100,000 >$100,000 or Other Litigation Lobbying >$100,000 >$100,000 >$100,000 >$100,000 >$100,000 Clean Air >$100,000 >$100,000 >$100,000 >$100,000 >$100,000 Clean Water >$100,000 >$100,000 >$100,000 >$100,000 >$100,000 Cargo Preference Transport by Transport by Transport by ocean vessel. ocean vessel. ocean vessel. Fly America Foreign air Foreign air Foreign air Foreign air Foreign air transp. /travel. transp. transp. transp. transp. /travel. /travel. /travel. /travel. PROVISIONS, CERTIFICATIONS, REPORTS, FORMS, AND OTHERMATRICES Page 42 Page 116 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions B. APPLICABILITY OF THIRD PARTY CONTRACT PROVISIONS (Continued) (excluding micro -purchases, except Davis -Bacon requirements apply to construction contracts exceeding $2,000) TYPE OF PROCUREMENT Professional Operations/ Rolling Stock Construction Materials & PROVISION Services/A&E Management Purchase Supplies Davis -Bacon Act >$2,000 (also ferries). Contract Work Hours and Safety >$100,000 >$100,000 >$100,000 Standards Act (transportation (also ferries). services excepted). Copeland Anti -Kickback Act Section 1 All Section 2 > $2,000 (also ferries). Bonding $100,000 Seismic Safety A&E for new New buildings & buildings & additions. additions. Transit Employee Protective Transit Arrangements operations. Charter Service Operations All School Bus Operations All Drug Use and Testing Transit operations. Alcohol Misuse and Testing Transit operations. Patent Rights R & D Rights in Data and Copyrights R & D Energy Conservation All All All All All Recycled Products EPA -selected EPA -selected EPA -selected items $10,000 items $10,000 items $10,000 or more or more or more annually. annually. annually. Conformance with ITS National ITS projects. ITS projects. ITS projects. ITS projects. ITS projects. Architecture ADA Access A&E All All All All Notification of Federal Limited to Limited to Limited to Limited to Limited to Participation for States States. States. States. States. States. Page 43 Page 117 of 971 Appendix II to Part 200, Title 2 (up to date as of 7/08/2022) Contract Provisions for Non -Federal Entity Contracts Under Fe... This content is from the eCFR and is authoritative but unofficial. Appendix II to Part 200, Title 2 Title 2 - Grants and Agreements Subtitle A - Office of Management and Budget Guidance for Grants and Agreements Chapter II - Office of Management and Budget Guidance Part 200 - Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards Authority: 31 U.S.C. 503 Source: 78 FR 78608, Dec. Source: 85 FR 49543, Aug. Source: 85 FR 49539, Aug. 26, 2013, unless otherwise noted. 13, 2020, unless otherwise noted. 13, 2020, unless otherwise noted. Appendix II to Part 200 - Contract Provisions for Non -Federal Entity Contracts Under Federal Awards In addition to other provisions required by the Federal agency or non -Federal entity, all contracts made by the non - Federal entity under the Federal award must contain provisions covering the following, as applicable. (A) Contracts for more than the simplified acquisition threshold, which is the inflation adjusted amount determined by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) as authorized by 41 U.S.C. 1908, must address administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as appropriate. (B) All contracts in excess of $10,000 must address termination for cause and for convenience by the non - Federal entity including the manner by which it will be effected and the basis for settlement. (C) Equal Employment Opportunity. Except as otherwise provided under 41 CFR Part 60, all contracts that meet the definition of "federally assisted construction contract" in 41 CFR Part 60-1.3 must include the equal opportunity clause provided under 41 CFR 60-1.4(b), in accordance with Executive Order 11246, "Equal Employment Opportunity" (30 FR 12319, 12935, 3 CFR Part, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," and implementing regulations at 41 CFR part 60, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor." (D) Davis -Bacon Act, as amended (40 U.S.C. 3141-3148). When required by Federal program legislation, all prime construction contracts in excess of $2,000 awarded by non -Federal entities must include a provision for compliance with the Davis -Bacon Act (40 U.S.C. 3141-3144, and 3146-3148) as supplemented by Department of Labor regulations (29 CFR Part 5, "Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction"). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non -Federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non -Federal entity must report all suspected or reported violations to the Federal awarding agency. The contracts must also include a provision for compliance with the Copeland "Anti -Kickback" Act (40 U.S.C. 3145), as supplemented by Department of Labor regulations (29 CFR Part 3, "Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by 2 CFR Appendix -II -to -Part -200(D) (enhanced display) Page 44 Page 118 of 971 Appendix II to Part 200, Title 2 (up to date as of 7/08/2022) Contract Provisions for Non -Federal Entity Contracts Under Fe... 2 CFR Appendix -II -to -Part -200(E) Loans or Grants from the United States"). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non - Federal entity must report all suspected or reported violations to the Federal awarding agency. (E) Contract Work Hours and Safety Standards Act (40 U.S.C. 3701-3708). Where applicable, all contracts awarded by the non -Federal entity in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 CFR Part 5). Under 40 U.S.C. 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence. (F) Rights to Inventions Made Under a Contract or Agreement. If the Federal award meets the definition of funding agreement" under 37 CFR § 401.2 (a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that "funding agreement," the recipient or subrecipient must comply with the requirements of 37 CFR Part 401, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements," and any implementing regulations issued by the awarding agency. (G) Clean Air Act (42 U.S.C. 7401-7671 q.) and the Federal Water Pollution Control Act (33 U.S.C. 1251-1387), as amended - Contracts and subgrants of amounts in excess of $150,000 must contain a provision that requires the non -Federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671 q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA). (H) Debarment and Suspension (Executive Orders 12549 and 12689) - A contract award (see 2 CFR 180.220) must not be made to parties listed on the governmentwide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p. 235), "Debarment and Suspension" SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. (I) Byrd Anti -Lobbying Amendment (31 U.S.C. 1352) - Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non -Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non -Federal award. 2 CFR Appendix -II -to -Part -200(I) (enhanced display) Page 45 Page 119 of 971 Appendix II to Part 200, Title 2 (up to date as of 7/08/2022) 2 CFR Appendix -II -to -Part -2000) Contract Provisions for Non -Federal Entity Contracts Under Fe... J See 200.323. (K) See 200.216. (L) See 200.322. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75888, Dec. 19, 2014; 85 FR 49577, Aug. 13, 2020] 2 CFR Appendix -II -to -Part -200(L) (enhanced display) Page 46 Page 120 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions *References to the code of regulations (CFR) or United States Code (USC) were accurate at the time of publication. It is the responsibility of the bidder to ensure compliance is met of the referenced state and federal laws within the published rules. ACCESS TO RECORDS AND REPORTS 49 U.S.C. § 5325(g) 2 C.F.R. § 200.333 49 F.R. part 633 1. Record Retention. The Contractor will retain, and will require its subcontractors of all tiers to retain, complete and readily accessible records related in whole or in part to the contract, including, but not limited to, data, documents, reports, statistics, sub -agreements, leases, subcontracts, arrangements, other third -party agreements of any type, and supporting materials related to those records. 2. Retention Period. The Contractor agrees to comply with the record retention requirements in accordance with 2 C.F.R. § 200.333. The Contractor shall maintain all books, records, accounts and reports required under this Contract for a period of at not less than three (3) years after the date of termination or expiration of this Contract, except in the event of litigation or settlement of claims arising from the performance of this Contract, in which case records shall be maintained until the disposition of all such litigation, appeals, claims or exceptions related thereto. 3. Access to Records. The Contractor agrees to provide sufficient access to FSA and its contractors to inspect and audit records and information related to performance of this contract as reasonably may be required. 4. Access to the Sites of Performance. The Contractor agrees to permit FSA and its contractors access to the sites of performance under this contract as reasonably may be required. BUS TESTING 49 U.S.C. § 5318(e) 49 C.F.R. part 665 The operator of the bus testing facility is required to provide the resulting test report to the entity that submits the bus for testing. The manufacturer or dealer of a new bus model or a bus produced with a major change in component or configuration is required to provide a copy of the corresponding full bus testing report and any applicable partial testing report(s) to the recipient during the point in the procurement process specified by the recipient, but in all cases before final acceptance of the first bus by the recipient. The complete bus testing reporting requirements are provided in 49 C.F.R. § 665.11. Although no specific certification and bus testing language in required, recipients can draw on the following language for inclusion in their federally funded procurements. Bus Testing The Contractor [Manufacturer] agrees to comply with the Bus Testing requirements under 49 U.S.C. 5318(e) and FTA's implementing regulation at 49 C.F.R. part 665 to ensure that the requisite testing is performed for all new bus models or any bus model with a major change in configuration or components, and that the bus model has achieved a passing score. Upon completion of the testing, the contractor shall obtain a copy of the bus testing reports from the operator of the testing facility and make that report(s) publicly available prior to final acceptance of the first vehicle by the recipient. BUY AMERICA REQUIREMENTS 49 U.S.C. 5323(j) 49 C.F.R. part 661 The Buy America regulation at 49 C.F.R. § 661.13 requires notification of the Buy America Page 47 Page 121 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions requirements in a recipients' bid or request for proposal for state or federally funded contracts. Recipients can draw on the following language for inclusion in their federally funded procurements. Note that recipients are responsible for including the correct Buy America certification based on what they are acquiring. Recipients should not include both the rolling stock and steel, iron, or manufactured products certificates in the documents unless acquiring both in the same procurement. Buy America The contractor agrees to comply with 49 U.S.C. 5323(j) and 49 C.F.R. part 661, which provide that Federal funds may not be obligated unless all steel, iron, and manufactured products used in FTA funded projects are produced in the United States, unless the product is subject to a general waiver. General waivers are listed in 49 C.F.R. § 661.7. Separate requirements for rolling stock are set out at 49 U.S.C. 5323(j)(2)(C) and 49 C.F.R. § 661.11. The [bidder or offeror] must submit to [Recipient] the appropriate Buy America certification below with its [bid or offer]. Bids or offers that are not accompanied by a completed Buy America certification will be rejected as nonresponsive. In accordance with 49 C.F.R. § 661.6, for the procurement of steel, iron or manufactured products, use the certifications below. CARGO PREFERENCE REQUIREMENTS 46 U.S.C. § 55305 46 C.F.R. part 381 The Cargo Preference Act of 1954 requirements applies to all contracts involving equipment, materials, or commodities that may be transported by ocean vessels. The Maritime Administration (MARAD) regulations at 46 C.F.R. § 381.7 contain suggested contract clauses. Cargo Preference - Use of United States -Flag Vessels The contractor agrees: 1. to use privately owned United States -Flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping any equipment, material, or commodities pursuant to the underlying contract to the extent such vessels are available at fair and reasonable rates for United States -Flag commercial vessels,- 2. essels;2. to furnish within 20 working days following the date of loading for shipments originating within the United States or within 30 working days following the date of loading for shipments originating outside the United States, a legible copy of a rated, "on -board" commercial ocean bill -of -lading in English for each shipment of cargo described in the preceding paragraph to the Division of National Cargo, Office of Market Development, Maritime Administration, Washington, DC 20590 and to the FSA recipient (through the contractor in the case of a subcontractor's bill -of -lading.); and 3. to include these requirements in all subcontracts issued pursuant to this contract when the subcontract may involve the transport of equipment, material, or commodities by ocean vessel. CLEAN AIR ACT AND FEDERAL WATER POLLUTION CONTROL ACT 42 U.S.C. §§ 7401— 7671q 33 U.S.C. §§ 1251-1387 2 C.F.R. part 200, Appendix II (G) The Contractor agrees: 1) It will not use any violating facilities; 2) It will report the use of facilities placed on or likely to be placed on the U.S. EPA "List of Violating Facilities;" 3) It will report violations of use of prohibited facilities to FSA; and 4) It will comply with the inspection and other requirements of the Clean Air Act, as amended, (42 U.S.C. §§ 7401— 7671q); and the Federal Water Pollution Control Act as amended, (33 U.S.C. §§ 1251-1387). Page 48 Page 122 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions CIVIL RIGHTS LAWS AND REGULATIONS Civil Rights and Equal Opportunity The AGENCY is an Equal Opportunity Employer. As such, the AGENCY agrees to comply with all applicable Federal civil rights laws and implementing regulations. Apart from inconsistent requirements imposed by Federal laws or regulations, the AGENCY agrees to comply with the requirements of 49 U.S.C. § 5323(h) (3) by not using any Federal assistance awarded to support procurements using exclusionary or discriminatory specifications. Under this Agreement, the Contractor shall at all times comply with the following requirements and shall include these requirements in each subcontract entered into as part thereof. 1. Nondiscrimination. In accordance with Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, religion, national origin, sex, disability, or age. In addition, the Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FSA may issue. Race, Color, Religion, National Origin, Sex. In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e et seq., and Federal transit laws at 49 U.S.C. § 5332, the Contractor agrees to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal 2. Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41 C.F.R. chapter 60, and Executive Order No. 11246, "Equal Employment Opportunity in Federal Employment," September 24, 1965, 42 U.S.C. § 2000e note, as amended by any later Executive Order that amends or supersedes it, referenced in 42 U.S.C. § 2000e note. The Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, national origin, or sex (including sexual orientation and gender identity). Such action shall include, but not be limited to, the following: employment, promotion, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, the Contractor agrees to comply with any implementing requirements FSA may issue. 3. Age. In accordance with the Age Discrimination in Employment Act, 29 U.S.C. §§ 621- 634, U.S. Equal Employment Opportunity Commission (U.S. EEOC) regulations, "Age Discrimination in Employment Act," 29 C.F.R. part 1625, the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6101 et seq., U.S. Health and Human Services regulations, "Nondiscrimination on the Basis of Age in Programs or Activities Receiving Federal Financial Assistance," 45 C.F.R. part 90, and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, the Contractor agrees to comply with any implementing requirements FSA may issue. 4. Disabilities. In accordance with section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq., the Architectural Barriers Act of 1968, as amended, 42 U.S.C. § 4151 et seq., and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against individuals on the basis of disability. In addition, the Contractor agrees to comply with any implementing requirements FSA may issue. DISADVANTAGED BUSINESS ENTERPRISE (DBE) 49 C.F.R. part 26 It is the policy of the AGENCY and the United States Department of Transportation ("DOT") that Disadvantaged Business Enterprises ("DBE's"), as defined herein and in the Federal regulations published at 49 C.F.R. part 26, shall have an equal opportunity to participate in government assisted contracts. It is also the policy of the AGENCY to: 1. Ensure nondiscrimination in the award and administration of DOT -assisted contracts; Page 49 Page 123 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions 2. Create a level playing field on which DBE's can compete fairly for DOT -assisted contracts; 3. Ensure that the DBE program is narrowly tailored in accordance with applicable law; 4. Ensure that only firms that fully meet 49 C.F.R. part 26 eligibility standards are permitted to participate as DBE's; 5. Help remove barriers to the participation of DBEs in DOT assisted contracts; 6. To promote the use of DBEs in all types of federally assisted contracts and procurement activities; and 7. Assist in the development of firms that can compete successfully in the marketplace outside the DBE program. The Contractor, subrecipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Contract. The Contractor shall carry out applicable requirements of 49 C.F.R. part 26 in the award and administration of DOT -assisted contracts. Failure by the Contractor to carry out these requirements is a material breach of this Contract, which may result in the termination of this Contract or such other remedy as the AGENCY deems appropriate. For the purpose of this Contract, the AGENCY will accept DBE's who are: 1. Certified, at the time of bid opening or proposal evaluation, by the [certifying agency or the Unified Certification Program (UCP)]; or 2. An out-of-state firm who has been certified by either a local government, state government or Federal government entity authorized to certify DBE status; or 3. Certified by another agency approved by the AGENCY. The DBE Certification Program is a Federal Program designed for business owners deemed "socially and economically disadvantaged." A Disadvantaged Business Enterprise (DBE) is a for-profit, independent small business concern that is: 1. At least 51% owned by one or more individuals who are both socially and economically disadvantaged; and 2. Whose management and daily business operations are controlled by one or more of the socially and economically disadvantaged individuals who own it. To achieve DBE status a business must meet the following criteria: 1. Must be an existing "for-profit" business that is currently operational; 2. Must meet the federal definition of a small business concern; 3. Must be an independent business which does not depend on its relationships with another firm or firms. If it is a subsidiary of a corporation, the business must still operate in a self-sufficient manner; 4. The qualifying owner(s) must meet the federal definition of "socially and economically disadvantaged" individuals; 5. The qualifying owner(s) must own a minimum of 51% of the company; and have an investment in their company; 6. The qualifying owner(s) cannot have a net worth that exceeds $1.32 million (excluding the owner's business and primary residence); 7. The qualifying owner(s) must have day-to-day control of operations and possess an expertise in their work specialty. The Unified Certification Program (UCP) provides "one-stop shopping" where disadvantaged businesses that meet the DBE certification requirements and become certified are eligible to be used to meet the DBE goal requirements on any project with funding from the U.S. Department of Transportation. The UCP eliminates the need for multiple DBE certifications with recipients of funding from the U.S. Department of Transportation (USDOT). In Florida, DBE UCP Certifying Members shall make certification decisions on behalf of all recipients in the state, with respect to participation in the U.S. Department of Transportation DBE Program. 1. The UCP shall provide "one-stop shopping" to applicants for certification, such that an applicant is required to apply only once for a DBE certification and all recipients in the state will honor that certification. Page Jr 0 Page 124 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions 2. All obligations of recipients with respect to certification and nondiscrimination must be carried out by UCPs, and recipients may use only UCPs that comply with the certification and nondiscrimination requirements of 49 CFR Part 26. 3. A UCP is not required to process an application for certification from a firm having its principal place of business outside the state of Florida if the firm is not certified by the UCP in their "home state", where it maintains its principal place of business. 4. A UCP DBE Directory containing all firms certified by the Florida DBE UCP Program is available to the public electronically, on the internet. The DBE Directory is updated as additions/changes are made. The web address for the DBE Directory is IrPPI,;zriE.G�xPs,�nF�z��,oE.i�xPorPi. �.oilo�arfE��a lE lzlz�xiP�ai7iPyQfPIc Busine s[ ket'b:)iY/ Page 51 Page 125 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions EMPLOYEE PROTECTIONS 49 U.S.C. § 5333(a) 40 U.S.C. §§ 3141— 3148 29 C.F.R. part 5 18 U.S.C. § 874 29 C.F.R. part 3 40 U.S.C. §§3701-3708 29 C.F.R. part 1926 The recipient must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. In addition, recipients can draw on the following language for inclusion in their federally funded procurements. The Contractor will comply with the Davis -Bacon Act, 40 U.S.C. §§ 3141-3144, and 3146-3148 as supplemented by DOL regulations at 29 C.F.R. part 5, "Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction." In accordance with the statute, the Contractor shall pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, the Contractor agrees to pay wages not less than once a week. The Contractor shall also comply with the Copeland "Anti -Kickback" Act (40 U.S.C. § 3145), as supplemented by DOL regulations at 29 C.F.R. part 3, "Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in part by Loans or Grants from the United States." The Contractor is prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The Contractor shall comply with all federal laws, regulations, and requirements providing wage and hour protections for non -construction employees, in accordance with 40 U.S.C. § 3702, Contract Work Hours and Safety Standards Act, and other relevant parts of that Act, 40 U.S.C. § 3701 et seq., and U.S. DOL regulations, "Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction (also Labor Standards Provisions Applicable to Non -construction Contracts Subject to the Contract Work Hours and Safety Standards Act)," 29 C.F.R. part 5. The Contractor shall maintain payrolls and basic payroll records during the course of the work and shall preserve them for a period of three (3) years from the completion of the contract for all laborers and mechanics, including guards and watchmen, working on the contract. Such records shall contain the name and address of each such employee, social security number, correct classifications, hourly rates of wages paid, daily and weekly number of hours worked, deductions made, and actual wages paid. Such records maintained under this paragraph shall be made available by the Contractor for inspection, copying, or transcription by authorized representatives of the agency, and the Contractor will permit such representatives to interview employees during working hours on the job. The contractor shall require the inclusion of the language of this clause within subcontracts of all Tiers. ENERGY CONSERVATION 42 U.S.C. 6321 et seq. 49 C.F.R. part 622, subpart C The contractor agrees to comply with mandatory standards and policies relating to energy efficiency, which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act. FLY AMERICA 49 U.S.C. § 40118 41 C.F.R. part 301-10 48 C. F. R. part 47.4 Page Jr 2 Page 126 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions Fly America Requirements Definitions. As used in this clause -- "International air transportation" means transportation by air between a place in the United States and a place outside the United States or between two places both of which are outside the United States. "United States" means the 50 States, the District of Columbia, and outlying areas. "U.S.-flag air carrier" means an air carrier holding a certificate under 49 U.S.C. Chapter 411. When Federal funds are used to fund travel, Section 5 of the International Air Transportation Fair Competitive Practices Act of 1974 (49 U.S.C. 40118) (Fly America Act) requires contractors, recipients, and others use U.S.-flag air carriers for U.S. Government -financed international air transportation of personnel (and their personal effects) or property, to the extent that service by those carriers is available. It requires the Comptroller General of the United States, in the absence of satisfactory proof of the necessity for foreign -flag air transportation, to disallow expenditures from funds, appropriated or otherwise established for the account of the United States, for international air transportation secured aboard a foreign -flag air carrier if a U.S.-flag air carrier is available to provide such services. If available, the Contractor, in performing work under this contract, shall use U.S.-flag carriers for international air transportation of personnel (and their personal effects) or property. In the event that the Contractor selects a carrier other than a U.S.-flag air carrier for international air transportation, the Contractor shall include a statement on vouchers involving such transportation essentially as follows: Statement of Unavailability of U.S.-Flag Air Carriers International air transportation of persons (and their personal effects) or property by U.S.-flag air carrier was not available or it was necessary to use foreign -flag air carrier service for the following reasons. See FAR § 47.403. The Contractor shall include the substance of this clause, including this paragraph (e), in each subcontract or purchase under this contract that may involve international air transportation. GOVERNMENT -WIDE DEBARMENT AND SUSPENSION 2 C.F.R. part 180 2 C.F.R part 1200 2 C.F.R. § 200.213 2 C.F.R. part 200 Appendix II (1) The Contractor shall comply and facilitate compliance with U.S. DOT regulations, "Nonprocurement Suspension and Debarment," 2 C.F.R. part 1200, which adopts and supplements the U.S. Office of Management and Budget (U.S. OMB) "Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement)," 2 C.F.R. part 180. These provisions apply to each contract at any tier of $25,000 or more, and to each contract at any tier for a federally required audit (irrespective of the contract amount), and to each contract at any tier that must be approved by an FTA official irrespective of the contract amount. As such, the Contractor shall verify that its principals, affiliates, and subcontractors are eligible to participate in this federally funded contract and are not presently declared by any Federal department or agency to be: 1. Debarred from participation in any federally assisted Award; 2. Suspended from participation in any federally assisted Award; 3. Proposed for debarment from participation in any federally assisted Award; 4. Declared ineligible to participate in any federally assisted Award; 5. Voluntarily excluded from participation in any federally assisted Award; or 6. Disqualified from participation in ay federally assisted Award. By signing and submitting its bid or proposal, the bidder or proposer certifies as follows: The debarment and suspension certification within the FSA CPP procurement package is a material representation of fact upon which reliance was placed when this transaction was made or entered into. If it is later determined by the AGENCY that the bidder or proposer knowingly rendered an erroneous certification, in addition to remedies available to the AGENCY, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. The bidder or proposer agrees to comply with the Page 5 3 Page 127 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions requirements of 2 C.F.R. part 180, subpart C, as supplemented by 2 C.F.R. part 1200, while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions. LOBBYING RESTRICTIONS 31 U.S.C. § 1352 2 C.F.R. § 200.450 2 C.F.R. part 200 appendix II (J) 49 C.F.R. part 20 The contractor certifies, to the best of his or her knowledge and belief, that: 1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. 2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form -LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. 3. The contractor shall require that the language of this certification be included in the award documents for all sub -awards at all tiers (including subcontracts, sub -grants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. The lobbying restrictions certification within the FSA CPP procurement package is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. NO GOVERNMENT OBLIGATION TO THIRD PARTIES The Recipient and Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying Contract, absent the express written consent by the Federal Government, the Federal Government is not a party to this Contract and shall not be subject to any obligations or liabilities to the Recipient, Contractor or any other party (whether or not a party to that contract) pertaining to any matter resulting from the underlying Contract. The Contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions. Page 54 Page 128 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions PRE -AWARD AND POST -DELIVERY AUDITS OF ROLLING STOCK PURCHASES 49 U.S.C. 5323(m) 49 C.F.R. part 663 The Contractor agrees to comply with 49 U.S.C. § 5323(m) and implementing regulation at 49 C.F.R. part 663. The Contractor shall comply with the Buy America certification(s) submitted with its proposal/bid. The Contractor agrees to participate and cooperate in any pre -award and post -delivery audits performed pursuant to 49 C.F.R. part 663. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS 49 U.S.C. § 5323(1) (1) 31 U.S.C. §§ 3801-3812 18 U.S.C. § 1001 49 C.F.R. part 31 The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et seq. and U.S. DOT regulations, "Program Fraud Civil Remedies," 49 C.F.R. part 31, apply to its actions pertaining to this Project. Upon execution of the underlying contract, the Contractor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying contract. In addition to other penalties that may be applicable, the Contractor further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Contractor to the extent the Federal Government deems appropriate. The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5323(1) on the Contractor, to the extent the Federal Government deems appropriate. The Contractor agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions. TERMINATION 2 C.F.R. § 200.339 2 C.F.R. part 200, Appendix II (B) The AGENCY may terminate this contract, in whole or in part, at any time by written notice to the Contractor when it is in the AGENCY's best interest. The Contractor shall be paid its costs, including contract close-out costs, and profit on work performed up to the time of termination. The Contractor shall promptly submit its termination claim to AGENCY to be paid the Contractor. If the Contractor has any property in its possession belonging to AGENCY, the Contractor will account for the same, and dispose of it in the manner AGENCY directs. Termination for Default [Breach or Cause] (General Provision) If the Contractor does not deliver supplies in accordance with the contract delivery schedule, or if the contract is for services, the Contractor fails to perform in the manner called for in the contract, or if the Contractor fails to comply with any other provisions of the contract, the AGENCY may terminate this contract for default. Termination shall be effected by serving a Notice of Termination on the Contractor setting forth the manner in which the Contractor is in default. The Contractor will be paid only the contract price for supplies delivered and accepted, or services performed in accordance with the manner of performance set forth in the contract. If it is later determined by the AGENCY that the Contractor had an excusable reason for not performing, such as a strike, fire, or flood, events which are not the fault of or are beyond the control of the Contractor, the AGENCY, after setting up a new delivery of performance schedule, may allow the Page S5 Page 129 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions Contractor to continue work, or treat the termination as a Termination for Convenience. Opportunity to Cure (General Provision) The AGENCY, in its sole discretion may, in the case of a termination for breach or default, allow the Contractor [an appropriately short period of time] in which to cure the defect. In such case, the Notice of Termination will state the time period in which cure is permitted and other appropriate Conditions. If Contractor fails to remedy to AGENCY's satisfaction the breach or default of any of the terms, covenants, or conditions of this Contract within [10 days] after receipt by Contractor of written notice from AGENCY setting forth the nature of said breach or default, AGENCY shall have the right to terminate the contract without any further obligation to Contractor. Any such termination for default shall not in any way operate to preclude AGENCY from also pursuing all available remedies against Contractor and its sureties for said breach or default. Waiver of Remedies for any Breach In the event that AGENCY elects to waive its remedies for any breach by Contractor of any covenant, term or condition of this contract, such waiver by AGENCY shall not limit AGENCY's remedies for any succeeding breach of that or of any other covenant, term, or condition of this contract. Termination for Default (Transportation Services) If the Contractor fails to pick up the commodities or to perform the services, including delivery services, within the time specified in this contract or any extension, or if the Contractor fails to comply with any other provisions of this contract, the AGENCY may terminate this contract for default. The AGENCY shall terminate by delivering to the Contractor a Notice of Termination specifying the nature of default. The Contractor will only be paid the contract price for services performed in accordance with the manner of performance set forth in this contract. If this contract is terminated while the Contractor has possession of AGENCY goods, the Contractor shall, upon direction of the AGENCY, protect and preserve the goods until surrendered to the AGENCY or its agent. The Contractor and AGENCY shall agree on payment for the preservation and protection of goods. Failure to agree on an amount will be resolved under the Dispute clause. If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the AGENCY. VIOLATION AND BREACH OF CONTRACT 2 C.F.R. § 200.326 2 C.F.R. part 200, Appendix II (A) Applicability to Contracts All contracts in excess of the Simplified Acquisition Threshold (currently set at $150,000) shall contain administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms and provide for such sanctions and penalties as appropriate. The Violations and Breach of Contracts clause flow down to all third party contractors and their contracts at every tier. Inasmuch as the Contractor can be adequately compensated by money damages for any breach of this Contract, which may be committed by the AGENCY, the Contractor expressly agrees that no default, act or omission of the AGENCY shall constitute a material breach of this Contract, entitling Contractor to cancel or rescind the Contract (unless the AGENCY directs Contractor to do so) or to suspend or abandon performance. Substantial failure of the Contractor to complete the Project in accordance with the terms of this Agreement will be a default of this Agreement. In the event of a default, the AGENCY will have all remedies in law and equity, including the right to specific performance, without further assistance, and the rights to termination or suspension as provided herein. The Contractor recognizes that in the event of a breach of this Agreement by the Contractor before the AGENCY takes action contemplated herein, the AGENCY will provide the Contractor with sixty (60) days written notice that the AGENCY considers that such a breach has occurred and will provide the Contractor a reasonable period of time to respond and to take necessary corrective action. Should Page 56 Page 130 of 971 FLORIDA SHERIFFS ASSOCIATION Cooperative Purchasing Program Contract Terms and Conditions either party to the Contract suffer injury or damage to person or property because of any act or omission of the party or of any of its employees, agents or others for whose acts it is legally liable, a claim for damages therefor shall be made in writing to such other party within a reasonable time after the first observance of such injury or damage. Unless this Contract provides otherwise, all claims, counterclaims, disputes and other matters in question between the AGENCY and the Contractor arising out of or relating to this agreement or its breach will be decided by arbitration if the parties mutually agree, or in a court of competent jurisdiction within the State in which the AGENCY is located. The duties and obligations imposed by the Contract documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. No action or failure to act by the AGENCY or Contractor shall constitute a waiver of any right or duty afforded any of them under the Contract, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder, except as may be specifically agreed in writing Page 5 7 Page 131 of 971 City of Boynton Beach GA, BER J%" 2/13/2023 Garber Ford, Inc. City of Boynton Beach Ryan Davis Attn: Ricky Opitz (904) 264-2442 ext.2335 FAX. (904) 284-0054 OpitZR(a_bVILu 3380 Hwy 17 Green Cove Springs Fl, 32043 561-742-6205 rdavis(a_aarberautomall.com .00 2/13/20233:28 PM Boynton Beach 2023 Ford F-150 Police Responder XL 4WD Super Crew (Black TTP) Quote 2-13-23.xlsx Page 132 of 971 '_a..If I ._" r J ..I I " � I .� � 1 �� Prices are published bythe Florida Sheriffs Association (www.fisheriffs.org) Purchasing contract number is FSA22-VEL30.0 Pursuit, Administrative Vehicles, expiring September 30th, 2023. If you have any questions regarding quote please call! Equipment Group 150A Base Included Engine: 3.5L V6 EcoBoost Included Transmission: Electronic 10 -Speed Automatic Included Agate Black Metallic Included Black, Cloth 40/Blank/40 Front -Seats Included Trailer Tow Package 1324 Integrated Trailer Brake Controller Included Black Platform Running Boards 249 Fog Lamps 139 Remote Keyless -Entry Key Fob w/o Key Pad (4 Keys and Fobs) Included LED Left Hand Spot Light Included Non -OEM Equipment: Hours: SounclOff Signal: DUAL Color Premium Unmarked Patrol Package (R/B) -Inc.: 3095 5.0 Front and Rear Full -Width Interior DUAL LED System Dual Color 4 -Corner Strobe LED's Dual Color Suface Mount LED's (x2) for Rear Side Windows 200 -watt Siren/Switch Module (Console Mount) 100w Speaker and Bracket Low Profile Surface Mount 3 -LED Lightheads for Running Boards (x4 R/B) 496 2.0 Setina LED Push Bumper with (4) SounclOff M -Power Dual R/B Signals 996 2.0 Havis 12.5" Wide Flat 24" Vehicle -Specific Console 796 Havis Self -Adjusting Double Cup Holder 59 Havis Side Mount Armrest 84 Havis 7" Accessory Pocket, 4.4" Deep For 3.3"W Section Of Wide Consoles 20 Havis Mic Clip Bracket W/ Mic Clip for Wide VSW Consoles 26 Havis Dual Lighter Plugs for Wide VSW Consoles 37 Havis Filler Plates and SounclOff Equipment Bracket N/C Paint 4 -Doors White on Black Vehicle 1195 LINEX Professional Spray In Bedliner 595 Tint Windows to 20% Match (No Windshield Strip) 295 9.0 Hours EVT Certified Lighting Installation (@ $125/hr) 1125 Temporary Tag 6 Delivery Included & Other this 150A 998 44G UM PB 53A $ 67T 18B 595 67P LNF 30PUMP-LED2 $. ST3 3645014 :-VSW-2400-F15o CUP2-1001 C -ARM -102 C-APW-0744 C-W-MC1 C-W-LP2 FP/EB TTP $ SIBL TINT INST $ TTAG DEL .00 2/13/20233:28 PM Boynton Beach 2023 Ford F-150 Police Responder XL 4WD Super Crew (Black TTP) Quote 2-13-23.xlsx Page 132 of 971 7.B. Requested Action by Commission: Approve the one-year extension for RFPs/Bids and/ or piggy -backs for the procurement of services and/or commodities over $100,000 as described in the written report for February 21, 2023 - "Request for Extensions and/or Piggybacks." Explanation of Request: As required, the Finance/Procurement Department submits requests for award to the Commission; requests for approval to enter into contracts and agreements as the result of formal solicitations; and to piggy -back governmental contracts. Options to extend or renew are noted in the "Agenda Request Item" presented to Commission as part of the initial approval process. Procurement seeks to provide an accurate and efficient method to keep the Commission informed of pending renewals and the anticipated expenditure by reducing the paperwork of processing each renewal and/or extension individually and summarizing the information in a monthly report (as required). VENDOR(S) DESCRIPTION OF SOLICITATION SOLICITATION RENEWAL AMOUNT NUMBER TERM Annual Madsen Barr Repairs and Emergency Services for Water Bid No. 019- May 8, Estimated Corporation; Distribution, Wastewater Collection and 2821-19/IT 2023- May Expenditure Johnson -Davis, Inc. Storm Water 7, 2024 $500,000 How will this affect city programs or services? This renewal report will be used for those solicitations, contracts/agreements and piggy -backs that are renewed/extended with the same terms and conditions and pricing as the initial award. Fiscal Impact: Funds have been budgeted under line items as noted on the attached report. Alternatives: Not approve renewals and require new solicitations to be issued. Strategic Plan: Strategic Plan Application: Climate Action Application: Page 133 of 971 Is this a grant? Grant Amount: Attachments: Type D AttachirTIENI'lt D AttachirTIENI'lt D ttaclhhirTIEsirlt Description Bid EAE)insioins aind Fliggy Backs oveir $100,000 IRENIIE)W,-'.Ill IIl['ltE)ir'E)St I E)ttENr MadSE�lirl Barr Corpoiraboin 2023 2024 IRENIIE)W,-'.Ill ll['ltE)ir'E)St I E)ttENr JohinsoinDwAs, linc- 2023 2024 Page 134 of 971 RE CITY OF BOYNTON BEACH REQUESTS FOR BID EXTENSIONS AND PIGGY -BACKS UNDER $100,000 February 21, 2023 REQUESTING DEPARTMENT: UTILITIES DEPARTMENT CONTACT: Tremaine Johnson, Manager Field Operations TERM: March 16, 2023, to March 15, 2024 SOURCE FOR PURCHASE: City of Boynton Beach Bid No. 003-2821-21/RW ACCOUNT NUMBER: 401-2816-536.46-20 VENDOR(S): Advanced Generator Sales & Services, Inc. ANNUAL ESTIMATE: $90,000 DESCRIPTION: On March 16, 2021, City Commission approved the award and authorized the City Manager to sign the Agreement Resolution R21-030, between the City of Boynton Beach and Advanced Generator Sales and Services, Inc. of Royal Palm Beach, FL for the Diesel / Propane Generator and By -Pass Pump Maintenance and Repair Services. The initial Agreement period was for two (2) years with the option to renew for three (3) additional one-year renewals. The vendor has agreed to renew the Agreement for the 1St one-year renewal term with the same terms, conditions, and pricing. The City of Boynton Beach February 1, 2023 Fin ant Se/vices I0DEOcean Avenue Boynton Beach, FL33435 P.D.Box 32O Boynton Beach, Florida 33425-892O Telephone No: /562/742-632O John Barr Madsen -Barr Corporation 12113Indian Mound Road Wellington, FL3344Q VIA EMAIL TRANSMITTAL TO: j�Lhnbar[@agd��p.ab�q�rqgjD BID: Repairs and Emergency Services for Water Distribution, Wastewater Collection and Storm Water Utility Systems Dear Mr. Barr: The current term with Madsen -Barr Corporation for Repairs and Emergency Services for Water Distribution, Wastewater Collection and Storm Water Utility Systems expires May 7, 2023. The contract allows for three (3) additional one-year remevvm|S. The City of Boynton Beach would like to exercise the option to renew for its 3rd renewal term with the same terms and conditions. Please indicate your response on the following page and return it to Procurement Services via email to at your earliest convenience. If you should have any queStinns, please do not hesitate to contact Tera|ymPratt, Contract Administrator at(581)742-G3O8 Sincerely, I*k.L ai,4 Mara Frederiksen Director ofFinancial Services Co DremaimaJohnsom. Manager, Field Opanations, Boynton Beach Utilities Melissa Roberts, Contract Coordinator, Boynton Beach Utilities Americo'sGateway tothe Gulf Stream Page 136Of971 The City of Be BID: REPAIRS AND EMERGENCY SERVICES FOR WATER DISTRIBUTION, WASTE'TVATE-R COLLECTION AND STORM WATER UTILITY SYSTEMS Agreement between the CITY OF BOYNTON BEACH and Madsen -Barr Corporation. AGREEMENT RENEWAL TERM: May 8, 2023 — May 7, 2024 Yes, I agree to renew the existing agreement under the same terms and conditions for an additional one-year term. No, I do not wish to renew the bid for the following reason(s) NAME OF REPRESENTATIVE (please print) 4 —4. DATE (AREA CODE) TELEPHONE NUMBER John Barr President 7M77,177,77,77-17, America's Gateway to the Gulf Stream Page 137 of 971 The City of Bounton Beach Fit) or) celPro co rernent Services 100 E. Ocean Avenue Boynton Beach, FL 33435 P.O. Box 310 Boynton Beach, Florida 33425-0310 Telephone No; (561) 742-6310 February 1, 2023 Scott J. Johnson Johnson -Davis, Inc, 604 Hillbrath Drive Lantana, FL 33462 VIA EMAIL TRANSMITTAL TO: siohnson@iohnsoiidavis.com BID: Repairs and Emergency Services for Water Distribution, Wastewater Collection and Storm Water Utility Systems CURRENT AGREEMENT TERM: MAY 8,2022—MAY 7,2023 Dear Mr. Johnson: The current term with Johnson -Davis, Inc. for Repairs and Emergency Services for Water Distribution, Wastewater Collection and Storm Water Utility Systems expires May 7, 2023. The contract allows for three (3) additional one-year renewals, The City of Boynton Beach would like to exercise the option to renew for its 3rd renewal term with the same terms and conditions. Please indicate your response on the following page and return it to Procurement Services via email to Prattt(a)bbfl.us at your earliest convenience. If you should have any questions, please do not hesitate to contact Taralyn Pratt, Contract Administrator at (561) '742-6308. Sincerely, Mara Frederiksen Director of Financial Services Cc: Tremaine Johnson, Manager, F�elcl Operations, Boynton Beach Utilities Melissa Roberts, Contract Coordinator, Boynton Beach Utilities Im Arnerico's Gotewoy tro the Gulf Stream Page 138 of 971 The City of Boiynton Beach January 26, 2023 Finance/Procurement Services 100 E. Ocean Avenue Boynton Beach, FL 33435 P.O. Box 310 Boynton Beach, Florida 33425-0310 Telephone No: (561) 742-6310 Agreement between the CITY OF BOYNTON: BEACH and Johnson -Davis, Inc, P" Yes, I agree to renew the existing agreement under the same terms and conditions for an additional one-year term. No, I do not wish to renew the bid for the following reason(s) RIVO �,'* -I �,1011 V;66 ATf NAME OF REPRESENTATIVE (please print) 2 11 DATE z E-MAIL,,57 SIGNATURE TITLE / "1' (AREA CODE) TELEPHONE NUMBER Americo's Gateway to the Gulf Stream Page 139 of 971 Am Public Hearing 2/21/2023 Requested Action by Commission: Proposed Ordinance No. 23-001 - Second Reading - Approve modifications to the existing methodology for the Payment in Lieu of Workforce Housing Units program; to include an FAR bonus; and to clarify the receiving areas for height, FAR, and density bonuses (CDRV 23- 001) by amending LAND DEVELOPMENT REGULATIONS, Chapter 1. Art 11. Sec 2.C.11. In -Lieu and Off - Site Options (related to the Workforce Housing Program). Explanation of Request: The enclosed staff report outlines information regarding amendments to the Workforce Housing Program in the Land Development Regulations, including modifying the existing methodology for the Payment in Lieu of Workforce Housing (W FH) Units program, providing for a Floor Area Ratio (FAR) bonus, and clarifying the receiving areas for height, FAR, and density bonuses. How will this affect city programs or services? This will not affect City programs or services. Fiscal Impact: If these modification to the existing program are adopted, staff anticipates that the participation by developers will increase. This would lead to additional funding in the Housing Trust Fund established by the City to assist with workforce housing initiatives. Alternatives: Do not approve the amendments and continue the current workforce housing program currently in place Approve other modifications to the exisiting program. Strategic Plan: Building Wealth in the Community Strategic Plan Application: By providing mechanisms for increased participation in workforce housing, greater access to attainable housing options will be provided for residents looking to buy and/or rent a new home. Climate Action Application: Is this a grant? Grant Amount: Attachments: Page 140 of 971 Type D OrdinainCE) D Staff IRE)port D ArTIE)indirTIENI'lt D AttachirTIENI'lt Description Ordinall'IC2, airTIE)inding I UIR SE�ICUOIIIS mirl(forCE) I ll0L.aiSiirIg Staff IRE)port Exhibit A FlrolPOSEd ArTIE)indirTIENI'Its Staff Flir'E)SE)intahoin Page 141 of 971 I 2 ORDINANCE NO. 23-001 3 4 5 AN ORDINANCE OF THE CITY OF BOYNTON BEACH, FLORIDA 6 AMENDING THE LAND DEVELOPMENT REGULATIONS CHAPTER 1, 7 GENERAL ADMINISTRATION, ARTICLE V. HOUSING INITIATIVES, 8 SECTION 2, WORKFORCE HOUSING PROGRAM (CDRV 23-001), TO 9 MODIFY THE EXISTING METHODOLOGY FOR THE PAYMENT IN LIEU OF 10 WORKFORCE HOUSING UNITS PROGRAM; TO INCLUDE AN FAR BONUS; 11 AND TO CLARIFY THE RECEIVING AREAS FOR HEIGHT, FAR, AND 12 DENSITY BONUSES; PROVIDING FOR CONFLICTS, SEVERABILITY, 13 CODIFICATION AND AN EFFECTIVE DATE. 14 15 16 WHEREAS, existing language reflected in the Workforce Housing Program section of 17 the City's LDR's establishes the criteria for Payment in Lieu of Construction of Workforce 18 Housing Units; and 19 WHEREAS, the program is largely underutilized, likely because of the methodology 20 for payment (more units are being paid for than are being provided through the program); 21 and 22 WHEREAS, staff has proposed to change the fee calculation by providing that 23 applicants pay the applicable fee multiplied by the bonus dwelling units provided; and 24 WHEREAS, staff also proposes to provide an option for an increase in Floor Area Ratio 25 (FAR) bonus of one-half (0.5) for the provision of workforce housing; and 26 WHEREAS, the City Commission of the City of Boynton Beach has considered the 27 recommendations and has determined that it is in the best interest of the citizens and 28 residents of the City of Boynton Beach, Florida to approve the amendments to the Land 29 Development Regulations as contained herein. 30 NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY 31 OF BOYNTON BEACH, FLORIDA, THAT: 32 Section 1. The foregoing whereas clauses are true and correct and are now ratified 33 and confirmed by the City Commission. 34 Section 2. City of Boynton Beach Land Development Regulations, Chapter 1, u S:ACA\Ordinances\LDR Changes\LDR Aiuendiuent (Ch 1) (Workforce Housing) - Ordinance.Docx Page 142 of 971 35 General Administration, Article V, Housing Initiatives, Section 2, Workforce Housing Program 36 is hereby amended as follows: 37 CHAPTER 1. GENERAL ADMINISTRATION 38 ... 39 ARTICLE V. HOUSING INITIATIVES 40 ... 41 Sec. 2. Workforce Housing Program. 42 ... 43 C. Provisions. The developer may elect to obtain a density bonus, Floor Area Ratio 44 (FAR), and/or a height bonus through the construction of the workforce units on-site or off - 45 site, monetary contribution, donation of land or purchase of units to be designated as 46 workforce, subject to the limits and requirements of this article. 47 I. Construction of workforce units on-site: 48 ... 49 II. In -Lieu and off-site options. 50 1. Payment In -Lieu (Table 1-3). Contributions per unit listed in the table below shall accrue 51 to the Boynton Beach Housing Trust to be utilized to subsidize the creation of workforce 52 housing within the city. In -lieu of fees shall be paid in full prior to the issuance of building 53 permit. Utilization of the Payment in Lieu of Workforce Housing Units program shall not be 54 applied in conjunction with other provisions to increase density. 55 Payment In Lieu of Construction of Workforce Housing Units (per unit) Payment In Lieu of Construction of Workforce Housing Units (per unit) For -sale unit $ 82,986 For rent units $ 36,760 56 Note: Payment -in -lieu amounts shall be revised every two (2) years, based on (i) 57 median single-family home sale price for Palm Beach County provided by Realtors' 58 Association of the Palm Beaches, and (ii) average monthly apartment rent for the Boynton 59 Beach market provided by Reinhold P. Wolff Economic Research, Inc. 60 2. The number of units for which the payment in lieu can be collected shall be as be as 61 follows: 62 a. Projects located within the Downtown Transit Oriented Development District 63 (DTODD) are eligible for a density bonus of up to twenty-five percent (25%), a Floor Area 64 Ratio (FAR) bonus of one-half (0.5), and a height bonus of one (1) additional story (up to a 65 maximum of 12 feet). Payment in Lieu of fee will be applied to each unit proposed in 66 excess of the Zoning Districts permitted density. 2 S:ACA\Ordinances\LDR Changes\LDR Aiuendiuent (Ch 1) (Workforce Housing) - Ordinance.Docx Page 143 of 971 67 b. Projects located within the DTODD in the Boynton Beach Boulevard Overlay with the 68 Mixed Use Medium or Mixed Use High future land use classifications are eligible for a 69 density bonus of up to twenty-five percent (25%), a Floor Area Ratio (FAR) bonus of one - 70 half (0.5), and a height bonus of two (2) additional stories (up to a maximum of 24 feet). 71 Payment in Lieu of fee will be applied to each unit proposed in excess of the Zoning 72 Districts permitted density. 73 c. Projects located outside of DTODD with Mixed Use Medium, Mixed Use Low, or 74 Special High Density Residential future land use classifications are eligible for a density 75 bonus of up to twenty-five percent (25%). Properties of three (3) or more acres are also 76 eligible for a height bonus of one (1) additional story up to a maximum of twelve feet (12'). 77 Payment in Lieu of fee will be applied to each unit proposed in excess of the Zoning 78 Districts permitted density. 79 3. Donation of Land. The value of the land shall equal or exceed the total "in -lieu of 80 fee for all workforce units or shall be of sufficient size to develop the same number of units. 81 The value of the donated land must be verified by a MAI appraisal no more than three (3) 82 months old. The appraisal shall be obtained by developer at developer's cost to verify the 83 value of donated land. The land shall be deeded to the city prior to the issuance of a final 84 certificate of occupancy for the development. 85 4. Off -Site Construction. The workforce housing units may be built off-site, provided 86 they are constructed within the city limits. All off-site workforce housing units shall comply 87 with all sections of these Regulations. 88 5. Purchase Market Rate Units. Purchase an equivalent number of existing market 89 rate units to be deeded to the city or sold to eligible households. Such units shall be deed 90 restricted to comply with the Workforce Housing Ordinance. The developer may retain the 91 title to off-site units subject to recordation of a city approved deed restriction. 93 Section 3. Each and every other provision of the Land Development Regulations 94 not herein specifically amended, shall remain in full force and effect as originally adopted. 95 Section 4. All laws and ordinances applying to the City of Boynton Beach in 96 conflict with any provisions of this ordinance are hereby repealed. 97 Section S. Should any section or provision of this Ordinance or any portion 98 99 100 101 102 103 104 thereof be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the remainder of this Ordinance. Section 6. Authority is hereby given to codify this Ordinance. Section 7. This Ordinance shall become effective immediately. FIRST READING this 7th day of February, 2023. SECOND, FINAL READING AND PASSAGE this 21 st day of February, 2023. CITY OF BOYNTON BEACH, FLORIDA 3 S:ACA\Ordinances\LDR Changes\LDR Aiuendiuent (Ch 1) (Workforce Housing) - Ordinance.Docx Page 144 of 971 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 Mayor — Ty Penserga Vice Mayor —Angela Cruz Commissioner — Woodrow L. Hay Commissioner — Thomas Turkin Commissioner —Aimee Kelley ATTEST: VOTE Maylee De Jesus, MPA, MMC Ty Penserga City Clerk Mayor (Corporate Seal) 4 YES NO APPROVED AS TO FORM: Michael D. Cirullo, Jr. City Attorney S:ACA\Ordinances\LDR Changes\LDR Aiuendiuent (Ch 1) (Workforce Housing) - Ordinance.Docx Page 145 of 971 TO: Chair and Members Planning and Development Board FROM: Amanda Radigan, AICP Planning and Zoning Director DATE: January 12, 2023 REQUEST: Approve modifications to modify the existing methodology for the Payment in Lieu of Workforce Housing Units program; to include an FAR bonus; and to clarify the receiving areas for height, FAR, and density bonuses (CDRV 23-001) by amending LAND DEVELOPMENT REGULATIONS, Chapter 1. Art 11. Sec 2.C.11. In -Lieu and Off -Site Options (related to the Workforce Housing Program). OVERVIEW This staff report outlines information regarding amendments to the Workforce Housing Program in the Land Development Regulations. Specifically, modifying the existing methodology for the Payment in Lieu of Workforce Housing Units program, providing for an FAR bonus, and clarifying the receiving areas for height, FAR, and density bonuses. I*:I:jAe1ki/eTI1[07kiE_jv:j:Z9719194I7e1LY, lEll ki131LY, lEll ki III K The City of Boynton Beach desires to assess the current and future housing needs of the City of Boynton Beach and to develop solutions for affordable housing. It has become increasingly difficult for middle-income workers to buy or rent housing in the areas in which they work. This is in part due to wages not keeping up with increasing costs of living but is also due to the limited supply of housing affordable to these workers. In response to limited affordable housing options in the areas where they work, many middle-income workers move to the outer fringes of a region, leading to longer commute times for the worker, higher levels of traffic, and other negative externalities for the surrounding area. According to the Urban Land Institute (ULI), Workforce Housing is defined as housing affordable to households earning between 60 and 120 percent of area median income (AMI). Workforce housing targets middle-income workers which includes professions such as police officers, firefighters, teachers, health care workers, retail clerks, and the like. Households who need workforce housing may not always qualify for housing subsidized by the Low -Income Housing Tax Credit (LIHTC) program or the Housing Choice Vouchers program (formerly known as Section 8), which are two major programs in place for addressing affordable housing needs. Boynton Beach hired Zonda, a housing market research company, to provide a housing assessment study which was completed in 2021. The study concluded, amongst other things, that establishing a Housing Trust Fund would be a viable option for improving affordability options within the City. Zonda stated that a housing trust fund could allow the City to be nimble and flexible when opportunities arise for additional affordable housing stock, and could be used to support housing payments on existing stock rather than waiting for a new supply. Page 146 of 971 Page 2 Workforce Housing Program Amendment CDRV 23-001 The existing language reflected in the Workforce Housing Program section of the City's LDR's establishes the criteria for Payment in Lieu of Construction of Workforce Housing Units. Currently, a developer is required to pay the applicable fee based off a percentage of the total number of units provided. The program is largely underutilized, likely because of the methodology for payment (more units are being paid for than are being provided through the program). In lieu of the existing methodology, Staff has proposed to change the fee calculation by providing that applicants pay the applicable fee multiplied by the bonus dwelling units provided. For example, if a 1 -acre parcel that is permitted 80 dwelling units per acre pays into the In -Lieu fund for 10 units (where up to 20 additional units could be paid for), they would pay the applicable fee multiplied by 10 (a one to one ratio). Staff has also included a provision that states that 'Utilization of the Payment in Lieu of Workforce Housing Units program shall not be applied in conjunction with other provisions to increase density'. Additionally, staff also proposes to provide an option for an increase in Floor Area Ratio (FAR) bonus of one-half (0.5) for the provision of workforce housing. Finally, the proposed amendment further clarifies the receiving locations where height, FAR, and density bonuses can be requested. Specifically: • Projects located within the Downtown Transit Oriented Development District (DTODD) are eligible for a density bonus of up to twenty-five percent (25%), a Floor Area Ratio (FAR) bonus of one-half (0.5), and a height bonus of one (1) additional story (up to a maximum of 12 feet). Payment in Lieu of fee will be applied to each unit proposed in excess of the Zoning Districts permitted density. Projects located within the DTODD in the Boynton Beach Boulevard Overlay with the Mixed Use Medium or Mixed Use High future land use classifications are eligible for a density bonus of up to twenty-five percent (25%), a Floor Area Ratio (FAR) bonus of one-half (0.5), and a height bonus of two (2) additional stories (up to a maximum of 24 feet). Payment in Lieu of fee will be applied to each unit proposed in excess of the Zoning Districts permitted density. Projects located outside of DTODD with Mixed Use Medium, Mixed Use Low, or Special High Density Residential future land use classifications are eligible for a density bonus of up to twenty-five percent (25%). Properties of three (3) or more acres are also eligible for a height bonus of one (1) additional story up to a maximum of twelve feet (12'). Payment in Lieu of fee will be applied to each unit proposed in excess of the Zoning Districts permitted density. Attachments 2 Page 147 of 971 PART III LAND DEVELOPMENT REGULATIONS CHAPTER 1. GENERAL ADMINISTRATION ARTICLE V. HOUSING INITIATIVES Sec. 2. Workforce Housing Program. C. Provisions. The developer may elect to obtain a density bonus, Floor Area Ratio (FAR), and/or a height bonus through the construction of the workforce units on-site or off-site, monetary contribution, donation of land or purchase of units to be designated as workforce, subject to the limits and requirements of this article. I. Construction of workforce units on-site: II. In -Lieu and off-site options. 1-2. Payment In -Lieu (Table 1-3). Contributions per unit listed in the table below shall accrue to the Boynton Beach Housing Trust to be utilized to subsidize the creation of workforce housing within the city. In -lieu of fees shall be paid in full prior to the issuance of building permit. Utilization of the Payment in Lieu of Workforce Housing Units program shall not be applied in conjunction with other provisions to increase density. Payment In Lieu of Construction of Workforce Housing Units (per unit) Payment In Lieu of Construction of Workforce Housing Units (per unit) For -sale unit $ 82,986 For rent units $ 36,760 Note: Payment -in -lieu amounts shall be revised every two (2) years, based on (i) median single-family home sale price for Palm Beach County provided by Realtors' Association of the Palm Beaches, and (ii) average monthly apartment rent for the Boynton Beach market provided by Reinhold P. Wolff Economic Research, Inc. 2. The number of units for which the payment in lieu can be collected shall be as be as follows: a. Projects located within the Downtown Transit Oriented Development District (DTODD) are eligible for a density bonus of up to twenty-five percent (25%), a Floor Area Ratio (FAR) bonus of one-half (0.5), and a height bonus of one (1) additional story (up to a maximum of 12 feet). Payment in Lieu of fee will be applied to each unit proposed in excess of the Zoning Districts permitted density. b. Projects located within the DTODD in the Boynton Beach Boulevard Overlay with the Mixed Use Medium or Mixed Use High future land use classifications are eligible for a density bonus of up to twenty-five percent (25%), a Floor Area Ratio (FAR) bonus of one-half (0.5), and a height bonus of two (2) additional stories (up to a maximum of 24 feet). Payment in Lieu of fee will be applied to each unit proposed in excess of the Zoning Districts permitted density. Page 148 of 971 .0 1-2. Payment In -Lieu (Table 1-3). Contributions per unit listed in the table below shall accrue to the Boynton Beach Housing Trust to be utilized to subsidize the creation of workforce housing within the city. In -lieu of fees shall be paid in full prior to the issuance of building permit. Utilization of the Payment in Lieu of Workforce Housing Units program shall not be applied in conjunction with other provisions to increase density. Payment In Lieu of Construction of Workforce Housing Units (per unit) Payment In Lieu of Construction of Workforce Housing Units (per unit) For -sale unit $ 82,986 For rent units $ 36,760 Note: Payment -in -lieu amounts shall be revised every two (2) years, based on (i) median single-family home sale price for Palm Beach County provided by Realtors' Association of the Palm Beaches, and (ii) average monthly apartment rent for the Boynton Beach market provided by Reinhold P. Wolff Economic Research, Inc. 2. The number of units for which the payment in lieu can be collected shall be as be as follows: a. Projects located within the Downtown Transit Oriented Development District (DTODD) are eligible for a density bonus of up to twenty-five percent (25%), a Floor Area Ratio (FAR) bonus of one-half (0.5), and a height bonus of one (1) additional story (up to a maximum of 12 feet). Payment in Lieu of fee will be applied to each unit proposed in excess of the Zoning Districts permitted density. b. Projects located within the DTODD in the Boynton Beach Boulevard Overlay with the Mixed Use Medium or Mixed Use High future land use classifications are eligible for a density bonus of up to twenty-five percent (25%), a Floor Area Ratio (FAR) bonus of one-half (0.5), and a height bonus of two (2) additional stories (up to a maximum of 24 feet). Payment in Lieu of fee will be applied to each unit proposed in excess of the Zoning Districts permitted density. Page 148 of 971 c. Projects located outside of DTODD with Mixed Use Medium, Mixed Use Low, or Special High Density Residential future land use classifications are eligible for a density bonus of up to twenty-five percent (25%). Properties of three (3) or more acres are also eligible for a height bonus of one (1) additional story up to a maximum of twelve feet (12'). Payment in Lieu of fee will be applied to each unit proposed in excess of the Zoning Districts permitted density. 3. Donation of Land. The value of the land shall equal or exceed the total "in -lieu of fee for all workforce units or shall be of sufficient size to develop the same number of units. The value of the donated land must be verified by a MAI appraisal no more than three (3) months old. The appraisal shall be obtained by developer at developer's cost to verify the value of donated land. The land shall be deeded to the city prior to the issuance of a final certificate of occupancy for the development. 4. Off -Site Construction. The workforce housing units may be built off-site, provided they are constructed within the city limits. All off-site workforce housing units shall comply with all sections of these Regulations. 5. Purchase Market Rate Units. Purchase an equivalent number of existing market rate units to be deeded to the city or sold to eligible households. Such units shall be deed restricted to comply with the Workforce Housing Ordinance. The developer may retain the title to off-site units subject to recordation of a city approved deed restriction. Page 149 of 971 OF- NTON B E A C N Workforce Housing �Payment �in Lieu Amendment CDRV 23-002 Planning & Development Board IMeeting Febiruairy 6, 2023 City Commission Meetings Febiruairy'7, 2023 1I Febiruairy 21, 2023 Page 150 of 971 - Voluntary City-Mide Program Failored towards WFIH Developers Incentivized by density/height bonus Goal: Private investrnent and construction of units Required to provide a % of overall units as WFIH (10%.-20% based on location) Fee in -lieu of Constr cdo P o m .......................................................................... �q M f.P. • Tailored towards Market Rate Developers • Incentivized by density/height bonus • Goal: Funds the City's IHousing"Frust Fund to implement WFIH initiatives Required to contribute a fee for a % percent of overall units (15%.-25% based on location) • For sale units: from $82,986 • For rerow*f 66 --mm $36,760 0 Fee in -lieu of Constr cdo P o m .......................................................................... �q U f. --p - Incentivized by density/height bonus Required to contribute a fee for a % percent of overall units (15%.-25% based on location) Page 152 of 971 Challenges & Proposed Cha � a Only allows for all of the available bonus to b given instead of in r rnents 00_ . Encourages rnaxirnizing of density and height Chal ® Iyrm�r�t MethodologyIyrm�r�tsr current bs onprcr�t raf l�GI�AL uur�its Discourages the use of the pro rarn. __nnto ____r__ _________________ Applicants pay the applicable fee per bonus unit being utilized. 0 Discourages rnaxirnizing of density and height Workforce Housing Payment in Lieu Amendment Page 153 of 971 CDRV 23-001 i Cha � a Only allows for all of the available bonus to b given instead of in r rnents 00_ . Encourages rnaxirnizing of density and height Chal ® Iyrm�r�t MethodologyIyrm�r�tsr current bs onprcr�t raf l�GI�AL uur�its Discourages the use of the pro rarn. ______ _ ___________________ Applicants pay the applicable fee per bonus unit being utilized. 0 Discourages rnaxirnizing of density and height l .. lenge. Current bonus' wire inf a,siibll -to t aHz itlho ut °eine" -to bLuiill . Discourages the use of the pro rarn. __nnto ____r__ _________________ Ad'd'ed option for ars increase in Floor Area Banca (FAR) bonus of one. -half (0.5). *Cornprehensive plea already p rrnits the additional FAR. Workforce Housing Payment lin Lieu Amendment dent Page 154 of 971 CDRV 23-001 Page 155 of 971 AW Public Hearing 2/21/2023 Requested Action by Commission: Proposed Ordinance No. 23-003 - Second Reading- Approve modifications (CDRV 23-003) amending the LAND DEVELOPMENT REGULATIONS, Chapter 2. Land Development Process, Article 11. Planning and Zoning Division Services, Section 2. Standard Applications, to establish a process for proposed Development Agreements. Explanation of Request: The City's current Land Development Regulations (LDRs) do not include a procedure to govern the process of entering into a Development Agreement. To date, the City has relied on state statute minimum requirements. The proposed amendment contains three (3) notable changes. First, the amendment allows only developments which are a minimum of fifteen (15) gross acres to enter into Development Agreements. Secondly, the process establishes submittal requirements above what State statute requires, such as, requiring a master plan or conceptual site plan be approved concurrently. Lastly, the proposed amendment allows for certain flexibility within current standards, to be utilized when a project enters into a Development Agreement. How will this affect city programs or services? Fiscal Impact: No Impact Alternatives: Do not approve a local procedure and continue to enter into Development Agreements pursuant to State Statute 163. Strategic Plan: Strategic Plan Application: Climate Action Application: Is this a grant? Grant Amount: Attachments: Page 156 of 971 Type D Staff IRE)port D A rTIE)ind rTIENI'l t D Attac, �h rTIE) II'l t Description Ordinall'IC2, appirtmAing airTIE)indirTIENI'lt taxa I arld DE)V(.)lopirTIENI'ltIRE�IgUlbboins to appirov(..s �DE�IVC.sll(.)lpirTIEsll'ItAgir'EsEsirTIEsll'It pir,C)CE)SS Staff IRE)port Tbwt A rTIE) ind rTIE) II'l t Staff Flir'E)SE)intaboin Page 157 of 971 1 2 ORDINANCE NO. 23-003 3 4 5 AN ORDINANCE OF THE CITY OF BOYNTON BEACH, FLORIDA 6 AMENDING THE LAND DEVELOPMENT REGULATIONS CHAPTER 2 LAND 7 DEVELOPMENT PROCESS, ARTICLE II PLANNING AND ZONING 8 DIVISION SERVICES, SECTION 2. STANDARD APPLICATIONS TO ADD A 9 SECTION FOR DEVELOPMENT AGREEMENTS; PROVIDING FOR 10 CONFLICTS, SEVERABILITY, CODIFICATION AND AN EFFECTIVE DATE. 11 12 13 WHEREAS, the Florida Legislature has previously enacted the Florida Local 14 Government Development Agreement Act (the Act), codified Sections 163.3220-163.3243, 15 Florida Statutes; and 16 WHEREAS, the Florida Legislature has determined that the lack of certainty in the 17 approval of development can result in a waste of economic and land resources, discourage 18 sound capital improvement planning and financing, escalate the cost of housing and 19 development, and discourage commitment to comprehensive planning; and 20 WHEREAS, the Florida Legislature has further determined that providing assurance 21 to developers through development agreements that they may proceed in accordance with 22 existing laws and policies, subject to the conditions of a development agreement, strengthens 23 the public planning process, encourages sound capital improvement planning and financing, 24 assists in assuring there are adequate capital facilities for the development, encourages 25 private participation in comprehensive planning, and reduces the economic costs of 26 development; and 27 WHEREAS, the Act authorizes local governments to enter into Development 28 Agreements with developers subject to the requirements of the Act; and 29 WHEREAS, the City of Boynton Beach deems it in the best interest of the City to 30 formally establish a policy that it may enter into Development Agreements when permitted 31 by Florida law and desired by the City Commission and a developer; and 32 WHEREAS, having considered the recommendations of the Planning and 33 Development Board, the City Commission of the City of Boynton Beach has found and u S:ACA\Ordinances\LDR Changes\LDR Amendment (Ch 2) (Development Agreements) - Ordinance.Docx Page 158 of 971 34 determined that the adoption of the development agreement ordinance will preserve the 35 public health, safety, and welfare, enhance the value and character of the community and is 36 consistent with the Comprehensive Plan. 37 NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY 38 OF BOYNTON BEACH, FLORIDA, THAT: 39 Section 1. The foregoing whereas clauses are true and correct and are now ratified 40 and confirmed by the City Commission. 41 Section 2. City of Boynton Beach Land Development Regulations, Chapter 2, Land 42 Development Process, Article II Planning and Zoning Division Services, Section 2. Standard 43 Applications is hereby amended as follows: 44 CHAPTER 2. LAND DEVELOPMENT PROCESS 45 ARTICLE II. PLANNING AND ZONING DIVISION SERVICES 46 Sec. 2. Standard Applications. 47 48 G. Development Agreement. 49 1. General. 50 a. Purpose and Intent. The purpose of Development Agreements is to encourage a strong 51 commitment to comprehensive and capital facilities planning, ensure the provision of 52 adequate public facilities for development concurrent with the impacts of development, 53 encourage the efficient use of resources, and reduce the economic cost of development. 54 The purpose of this section is to establish procedures and standards for the City 55 Commission to consider and enter into Development Agreements in accordance with 56 Florida State Statutes. 57 b. Authority and Applicability. The city is authorized to review and enter into a Development 58 Agreement with any person having legal or equitable interest in real property in the city in 59 accordance with the procedures and standards in this section. 60 c. Parcel Criteria. Only developments which are a minimum of fifteen (15) gross acres are 61 eligible to enter into Development Agreements with the city pursuant to this section. 62 d. Conflict. In the event of any conflict between the provisions of this Section and any other 63 sections of the Land Development Regulations or City Codes of Ordinance, the provisions of 64 this section shall prevail. These provisions shall not be construed to supersede any federal, 65 state, or county laws. 66 2. Submittal Requirements. Development Aereements shall include and meet the reauirements of 67 at least the following: 2 S:ACA\Ordinances\LDR Changes\LDR Amendment (Ch 2) (Development Agreements) - Ordinance.Docx Page 159 of 971 68 a. Proposed Development Agreements must meet and be consistent with all requirements set 69 forth in the Florida Local Government Development Act, sections 163.3220-163.3243, 70 Florida Statutes; 71 b. A Master Plan or Major Master Plan Modification must be submitted and approved 72 concurrently with a Development Agreement; 73 c. A phasing plan indicating the proposed phases, if the development is subject to phasing; 74 d. A conceptual site plan for any single-phase development proposals; 75 e. Schematic Design plans including, at a minimum, building location, architectural style, and 76 building height; and 77 f. A statement of milestone dates including necessary development approvals, permitting and 78 construction. 79 3. Alternative Standards. The City may elect to enact the below alternative standards for 80 developments which are subject to a Development Agreement: 81 a. Developments must participate in the City's Public Art Program; however, the Public Art 82 Fee for the Development may be established within the proposed Development Agreement 83 in an amount different than the amount required by of the City Code. Public Art Fee 84 amounts established pursuant to this section must meet the purpose and intent of the 85 City's Public Art Program. 86 b. The City of Boynton Beach may reserve utility system capacity for water and wastewater 87 service for a period not to exceed six (6) years from the date of the agreement or approved 88 permit application at no cost to the Developer at the discretion and approval of the Utilities 89 Director or designee, for the purpose of allowing the Developer to meet anticipated 90 concurrency requirements. 91 c. Expiration of a Master Plan or Major Master Plan Modification. A Master Plan or Major 92 Master Plan Modification approved with a Development Agreement shall remain valid for 93 twenty-four (24) months; however, upon approval of a site plan by the City Commission, a 94 master plan shall remain valid until the corresponding site plan expires. 95 d. Expiration of a Site Plan or Major Site Plan Modification. Upon approval of a site plan by 96 the City Commission, the applicant shall have up to seventy-two months (72) months to 97 secure a building permit for vertical construction. 98 4. Review Criteria. An application for a Development Agreement shall be approved and executed 99 only if the City Commission finds that the development proposed in the Development Agreement: 100 a. Includes all the information and provisions required by this Section 101 b. Meets all Submittal Requirements; 102 c. Is consistent with the City's Comprehensive Plan and any amendments to the 103 Comprehensive Plan that would impact the development have been found in compliance if 104 required by state law and are beyond all appeal periods; 105 d. Is consistent with this City Code; and 106 e. Furthers the public health, safety, and welfare of the city. 107 S. Approval Process. A Development Agreement requires review and approval by the City 108 Commission. by ordinance. and shall be processed in accordance with section 163.3225. Florida 109 Statutes. 3 S:ACA\Ordinances\LDR Changes\LDR Amendment (Ch 2) (Development Agreements) - Ordinance.Docx Page 160 of 971 110 6. Periodic Review of Development Agreement. The City shall review land subject to the 111 Development Agreement at least once every 12 months to determine if there has been a 112 demonstration of good faith compliance with the terms of the Development Agreement. Each 113 annual review conducted after the sixth year of a Development Agreement shall include a written 114 report completed by the developer, which shall be submitted to the parties to the Development 115 Agreement. 116 117 Section 3. Each and every other provision of the Land Development Regulations 118 not herein specifically amended, shall remain in full force and effect as originally adopted. 119 Section 4. All laws and ordinances applying to the City of Boynton Beach in 120 conflict with any provisions of this ordinance are hereby repealed. 121 Section S. Should any section or provision of this Ordinance or any portion 122 thereof be declared by a court of competent jurisdiction to be invalid, such decision shall not 123 affect the remainder of this Ordinance. 124 Section 6. Authority is hereby given to codify this Ordinance. 125 Section 7. This Ordinance shall become effective immediately. 126 FIRST READING this 7th day of February, 2023. 127 SECOND, FINAL READING AND PASSAGE this 21 st day of February, 2023. 128 CITY OF BOYNTON BEACH, FLORIDA 129 130 YES NO 131 132 Mayor — Ty Penserga 133 134 Vice Mayor —Angela Cruz 135 136 Commissioner — Woodrow L. Hay 137 138 Commissioner — Thomas Turkin 139 140 Commissioner —Aimee Kelley 141 142 VOTE 143 144 145 4 S:ACA\Ordinances\LDR Changes\LDR Amendment (Ch 2) (Development Agreements) - Ordinance.Docx Page 161 of 971 146 147 148 149 150 151 152 153 154 155 156 157 158 ATTEST: Maylee De Jes6s, MPA, MMC City Clerk (Corporate Seal) 5 Ty Penserga Mayor APPROVED AS TO FORM: Michael D. Cirullo, Jr. City Attorney S:ACA\Ordinances\LDR Changes\LDR Amendment (Ch 2) (Development Agreements) - Ordinance.Docx Page 162 of 971 DEVELOPMENT DEPARTMENT PLANNING AND ZONING DIVISION MEMORANDUM NO. PZ 23-006 " STAFF REPORT TO: Chair and Members Planning and Development Board FROM: Amanda Radigan, AICP, LEED AP Planning and Zoning Director DATE: January 13, 2023 REQUEST: Approve modifications (CDRV 23-003) amending the LAND DEVELOPMENT REGULATIONS, Chapter 2. Land Development Process, Article II. Planning and Zoning Division Services, Section 2. Standard Applications, to establish a process for proposed Development Agreements. OVERVIEW The City's current Land Development Regulations (LDRs) do not include a procedure to govern the process of entering into a Development Agreement. To date, the City has relied on state statute minimum requirements. The proposed amendments establish a procedure, submittal requirements, eligibility requirements, as well as provide alternative standards that are designed to allow for flexibility in key areas of the LDRs. EXPLANATION & PROPOSED AMENDMENTS The proposed amendment contains three (3) notable changes. First, the amendment allows only developments which are a minimum of fifteen (15) gross acres to enter into Development Agreements. Secondly, the process establishes submittal requirements above what state statute requires, such as, requiring a master plan or conceptual site plan be approved concurrently. Lastly, the proposed amendment allows for certain flexibility within current standards to be utilized when a project enters into a Development Agreement. The flexible standards include: Developments must participate in the City's Public Art Program; however, the Public Art Fee for the Development may be established within the proposed Development Agreement in an amount different than the amount required by of the City Code. Public Art Fee amounts established pursuant to this section must meet the purpose and intent of the City's Public Art Program. • The City of Boynton Beach may reserve utility system capacity for water and wastewater service for a period not to exceed six (6) years from the date of the agreement or approved permit application at no cost to the Developer at the discretion and approval of the Utilities Director or designee, for the purpose of allowing the Developer to meet anticipated concurrency requirements. • Expiration of a Master Plan or Major Master Plan Modification. A Master Plan or Major Master Plan Modification approved with a Development Agreement shall remain valid for 24 months; Page 163 of 971 Page 2 Development Agreement Process CDRV 23-005 however, upon approval of a site plan by the City Commission, a master plan shall remain valid until the corresponding site plan expires. Expiration of a Site Plan or Major Site Plan Modification. Upon approval of a site plan by the City Commission, the applicant shall have 72 months to secure a building permit for vertical construction. It is important to note the flexible standards can be utilized at the City Commission discretion and all Development Agreements are not automatically entitled to the proposed alternative standards. CONCLUSION/RECOMMENDATION Staff recommends Approval of the subject amendments to the Land Development Regulations to establish a procedure for entering into Development Agreements and to provide alternative standards that may be utilized at the City Commission discretion. Attachments 2 Page 164 of 971 PART III LAND DEVELOPMENT REGULATIONS CHAPTER 2. LAND DEVELOPMENT PROCESS ARTICLE II. PLANNING AND ZONING DIVISION SERVICES Sec. 2. Standard Applications. G. Development Agreement. 1. General. a. Purpose and Intent. The purpose of Development Agreements is to encourage a strong commitment to comprehensive and capital facilities planning, ensure the provision of adequate public facilities for development concurrent with the impacts of development, encourage the efficient use of resources, and reduce the economic cost of development. The purpose of this section is to establish procedures and standards for the City Commission to consider and enter into Development Agreements in accordance with Florida State Statutes. b. Authority and Applicability. The city is authorized to review and enter into a Development Agreement with any person having legal or equitable interest in real property in the city in accordance with the procedures and standards in this section. c. Parcel Criteria. Only developments which are a minimum of fifteen (15) gross acres are eligible to enter into Development Agreements with the city pursuant to this section. d. Conflict. In the event of any conflict between the provisions of this Section and any other sections of the Land Development Regulations or City Codes of Ordinance, the provisions of this section shall prevail. These provisions shall not be construed to supersede any federal, state, or county laws. 2. Submittal Requirements. Development Agreements shall include and meet the requirements of at least the following: a. Proposed Development Agreements must meet and be consistent with all requirements set forth in the Florida Local Government Development Act, sections 163.3220-163.3243, Florida Statutes; b. A Master Plan or Major Master Plan Modification must be submitted and approved concurrently with a Development Agreement; c. A phasing plan indicating the proposed phases, if the development is subject to phasing; d. A conceptual site plan for any single-phase development proposals; e. Schematic Design plans including, at a minimum, building location, architectural style, and building height; and f. A statement of milestone dates including necessary development approvals, permitting and construction. 3. Alternative Standards. The City may elect to enact the below alternative standards for developments which are subject to a Development Agreement: a. Developments must participate in the City's Public Art Program; however, the Public Art Fee for the Development may be established within the proposed Development Agreement in an amount different than the amount required by of the City Code. Public Art Fee amounts established pursuant to this section must meet the purpose and intent of the City's Public Art Program. b. The City of Boynton Beach may reserve utility system capacity for water and wastewater service for a period not to exceed six (6) years from the date of the agreement or approved permit application at no cost to the Developer at the discretion and approval of the Utilities Director or designee, for the purpose of allowing the Developer to meet anticipated concurrency requirements. c. Expiration of a Master Plan or Major Master Plan Modification. A Master Plan or Major Master Plan Modification approved with a Development Agreement shall remain valid for 36 months; however, upon approval of a site plan by the City Commission, a master plan shall remain valid until the corresponding site plan expires. 01876561-1 Page 165 of 971 d. Expiration of a Site Plan or Major Site Plan Modification. Upon approval of a site plan by the City Commission, the applicant shall have forty-eight months (48) months to secure a building permit for vertical construction. 4. Review Criteria. An application for a Development Agreement shall be approved and executed only if the City Commission finds that the development proposed in the Development Agreement: a. Includes all the information and provisions required by this Section b. Meets all Submittal Requirements; c. Is consistent with the City's Comprehensive Plan and any amendments to the Comprehensive Plan that would impact the development have been found in compliance if required by state law and are beyond all appeal periods; d. Is consistent with this City Code; and e. Furthers the public health, safety, and welfare of the city. S. Approval Process. A Development Agreement requires review and approval by the City Commission, by ordinance, and shall be processed in accordance with section 163.3225, Florida Statutes. 6. Periodic Review of Development Agreement. The City shall review land subject to the Development Agreement at least once every 12 months to determine if there has been a demonstration of good faith compliance with the terms of the Development Agreement. Each annual review conducted after the sixth year of a Development Agreement shall include a written report completed by the developer, which shall be submitted to the parties to the Development Agreement. 01876561-1 Page 166 of 971 OF- NTON B E A C N Development Agreement �Process Amendment CDRV 23-003 Planning & Development Board IMeeting Febiruairy 6, 2023 City Commission Meetings Febiruairy'7, 2023 1I Febiruairy 21, 2023 Page 167 of 971 Development agreements allow the City to set terms and conditions of developments and are typically used in large projects and/or private.--pulbilc partnerships (P3s).. 0 Per State Statutes, development agreements:: 0 can have terms of up to 30 years 0 -freeze the City's LURs in effect -for the length of the contract The city does not currently have a process for Development agreements, so any agreements -fall upon the minimum requirements set by Chapter 163 in the (Florida Statutes.. Development Agreement Process Amendment Page 168 of 971 CDRV 23-003 Three (3) notable Amendments:: 0 Developments must be -fifteen (15) gross acres or more to enter into Development Agreements.. 0 Establishes submittal requirements above what state statute requires, such as, requiring a master plan or conceptual site plain be approved concurrently.. 0 Allows -for certain -flexibility within current standards that can be utilized by the City Commission.. Development Agreement Process Amendment Page 169 of 971 CDRV 23-003 M1, , 1.. The Public Art IFee may be established within the proposed Development 2.. City may reserve utility system capacity for water and wastewater service for up to six (6) years from the date of the agreement at no cost to the I A IMaster Plan or Modification approved with a Development Agreement 4.. Upon approval of a site plan by the City Commission, the applicant shalIll Development Agreement Process Amendment Page 170 of 971 CDRV 23-003 Page 171 of 971 E:lu" Public Hearing 2/21/2023 Requested Action by Commission: Proposed Ordinance No. 23-005- First Reading - Approve The Pierce request for Rezoning (REZN 22-001) from Central Business District (CBD) to Mixed -Use Core (MU - C), property generally located at the intersection of East Ocean Avenue and North Federal Highway. Applicant: Jeffery Burns, Affiliated Development. Explanation of Request: The Pierce development is proposed for 3.04 acres located within the Downtown District as defined by the CRA Community Redevelopment Plan (CRA Plan). The project site is an assemblage of properties consisting of eight (8) developed and undeveloped parcels, including one- and two-story commercial buildings and surface parking lots. The parcels are classified as Mixed -Use High (MXH) allowing a maximum density of 100 dwelling units per acre (du/ac), and zoned Central Business District (CBD). The developer has requested to rezone the parcels to Mixed Use -Core (MU -C), a zoning designation corresponding to the MXH future land use classification. The requested zoning district allows a maximum density of 80 du/ac; the underlying future land use classification maximum density may be realized through density bonuses outlined within the Land Development Regulations (LDR). The requested MU -C zoning designation is consistent with the CRA Plan. The applicant proposes to develop a mixed-use project with 300 multi -family rental units and approximately 17,089 square feet of ground commercial space including restaurants fronting Boynton Beach Boulevard and Ocean Avenue, retail adjacent to NE 4th Street, office spaces adjacent to Federal Highway, and a freestanding parking garage (Exhibit F — Site Plan and Master Plan). The proposed density of 99 du/ac exceeds the requested zoning district's maximum density (80 du/ac); however, the developer proposes to participate in the City's Workforce Housing Program. Per LDR, the maximum density within the MU -C zoning district may be increased by twenty-five percent (25%) for projects located within the Downtown Transit - Oriented Development District (DTODD), with participation in the City's Workforce Housing Program. Currently, there are three existing projects within close proximity to the project site that are zoned MU -C, including 500 Ocean, Casa Costa, and Marina Village. In addition, the Broadstone Boynton Beach site plan has received approval under MU -C zoning. The Planning & Development Board recommended APPROVAL of this request during the February 6, 2023 meeting. How will this affect city programs or services? This will not affect the City programs or services. Fiscal Impact: There is no fiscal impact to the budget for this item. Alternatives: Staff has reviewed the proposed rezoning and recommends DENIAL based on the recommendation of denial for variance request ZNCV 23-002; however, should the City Commission approve the applicant's request for a variance for relief from Part 111, Chapter 4, Article 11, Section 4.B.3.c Urban Landscape Buffer (Type 2); then staff recommends APPROVAL of The Pierce Rezoning (REZN 22-001) based on the findings that the project implements the CRA Community Redevelopment Plan and the Comprehensive Plan objectives and policies, and is consistent with the Complete Streets Mobility Plan. Page 172 of 971 Strategic Plan: Strategic Plan Application: N/A Climate Action Application: N/A Is this a grant? Grant Amount: Attachments: Type Description D OrdinainCE) Ordinal['IC2, appirtnkng thE) r'E)Z01['1i1['1g for ME) RiENrCE) D Staff IRE)port Staff IRE)port D I ocaboin li ap Exhibit A I ocaboin li ap D Exhibit Exhibit B E)dsbing Zoiniing D Exhibit Exhibit C Flro�POSEd D Exhibit Exhibit iD Exisbing F:::L.J1tL.J1ir'E) (.....a ind LJSE, D Exhibit Exhibit ii:::::. Appicaint RE)ZO111illIg J LAStificaboin StatE)irTIENI'lt D D ings Exhibit F::: Sl E) Rain air' d MastE)r Rain D Exhibit Exhibit (3) URA I aind L. SE: D OthE)r App�icaint Flir'E)SENI'Itaboin Page 173 of 971 1 ORDINANCE NO. 23-005 2 3 AN ORDINANCE OF THE CITY OF BOYNTON BEACH, FLORIDA, 4 AMENDING ORDINANCE 02-013 TO REZONE A PARCEL OF LAND 5 DESCRIBED HEREIN AND COMMONLY REFERRED TO AS THE PIERCE 6 FROM CBD (CENTRAL BUSINESS DISTRICT) TO MU -C (MIXED-USE 7 CORE); PROVIDING FOR CONFLICTS, SEVERABILITY, AND AN EFFECTIVE 8 DATE. 9 10 WHEREAS, the City Commission of the City of Boynton Beach, Florida has adopted 11 Ordinance No. 02-013, in which a Revised Zoning Map was adopted for said City; and 12 WHEREAS, the applicant has requested to rezone the parcels to Mixed Use -Core (MU - 13 C), a zoning designation corresponding to the MXH future land use classification and carrying 14 that classification's maximum density of 80 dwelling units per acre (du/ac); and 15 WHEREAS, the City Commission conducted public hearings as required by law and 16 heard testimony and received evidence which the Commission finds supports a rezoning for 17 the property hereinafter described; and 18 WHEREAS, the City Commission deems it in the best interests of the inhabitants of said 19 City to amend the aforesaid Revised Zoning Map as hereinafter set forth. 20 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF 21 BOYNTON BEACH, FLORIDA, THAT: 22 Section 1. The foregoing Whereas clauses are true and correct and incorporated 23 herein by this reference. 24 Section 2. The land herein described be and the same is hereby rezoned from CBD 25 (Central Business District) to MU -C (Mixed Use -Core). A location map is attached hereto as 26 Exhibit "A" and made a part of this Ordinance by reference. 27 PROPERTY 1: 28 Address: 508 E BOYNTON BEACH BLVD 29 PCN: 08434528030010060 30 31 Legal Description: Lots 6 and 7, Block 1, Original Town of Boynton, according to the 32 map or plat thereof as recorded in Plat Book 1, Page 23, Public Records of Palm 33 Beach County, Florida. 34 35 1 S:ACA\Ordinances\Planning\Rezoning\The Pierce - Rezone - Ordinance.Docx Page 174 of 971 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 PROPERTY 2: Address: NE 4th St. PCN: 08434528030010080 Legal Description: Lots 8 and 9, Block 1, TOWN OF BOYNTON, according to the map or plat thereof as recorded in Plat Book 1, Page 23, of the Public Records of Palm Beach County, Florida. PROPERTIES 3 and 4 (share a legal description) Address: N E 1 st Ave PCN: 08434528030010100 Legal Description: 1, 2, 3, 4, 5, 6, and 7, Block 6, Original Town of Boynton, a subdivision of the City of Boynton Beach, Florida according to the Plat thereof in the Office of the Clerk of the Circuit Court, recorded in Plat Book 1, Page 23, excepting therefrom the North 5' of Lots 5 and 7 and the West 5' of Lot 7, and existing right-of-way for U.S. Highway #1 and Lots 10, 11, and West 1/2 of Lot 12, Block 1, Original Town of Boynton, a subdivision of the City of Boynton Beach, Florida according to the Plat thereof in the Office of the Clerk of the Circuit Court, recorded in Plat Book 1, Page 23, Public Records of Palm Beach County, Florida. Address: 115 N Federal Hwy PCN: 08434528030060010 Legal Description: 1, 2, 3, 4, 5, 6, and 7, Block 6, Original Town of Boynton, a subdivision of the City of Boynton Beach, Florida according to the Plat thereof in the Office of the Clerk of the Circuit Court, recorded in Plat Book 1, Page 23, excepting therefrom the North 5' of Lots 5 and 7 and the West 5' of Lot 7, and existing right-of-way for U.S. Highway #1 and Lots 10, 11, and West 1/2 of Lot 12, Block 1, Original Town of Boynton, a subdivision of the City of Boynton Beach, Florida according to the Plat thereof in the Office of the Clerk of the Circuit Court, recorded in Plat Book 1, Page 23, Public Records of Palm Beach County, Florida. PROPERTIES S, 6, and 7 (share a legal description): Address: 511 E Ocean Ave PCN: 08434528030060100 PARCEL 1: Lot 10, Less the South 8 feet thereof, and the West 7 feet 8 inches of Lot 11, Less the South 8 feet thereof, Block 6, Boynton, according to the plat thereof, as recorded in Plat Book 1, Page 23, of the Public Records of Palm Beach County, Florida. PARCEL 2: 2 S:ACA\Ordinances\Planning\Rezoning\The Pierce - Rezone - Ordinance.Docx Page 175 of 971 80 The East 42 feet 4 inches of Lot 11, Less the South 8 feet thereof, in Block 6, 81 Boynton, according to the plat thereof, as recorded in Plat Book 1, Page 23, of the 82 Public Records of Palm Beach County, Florida. 83 84 PARCEL I 85 Lot 12, Block 6, Original Town of Boynton, according to the plat thereof, as 86 recorded in Plat Book 1, Page 23, of the Public Records of Palm Beach County, 87 Florida. 88 89 Address: 515 E Ocean Ave 90 PCN: 08434528030060111 91 Legal Description: 92 PARCEL 1: 93 Lot 10, Less the South 8 feet thereof, and the West 7 feet 8 inches of Lot 11, Less 94 the South 8 feet thereof, Block 6, Boynton, according to the plat thereof, as 95 recorded in Plat Book 1, Page 23, of the Public Records of Palm Beach County, 96 Florida. 97 98 PARCEL 2: 99 The East 42 feet 4 inches of Lot 11, Less the South 8 feet thereof, in Block 6, 100 Boynton, according to the plat thereof, as recorded in Plat Book 1, Page 23, of the 101 Public Records of Palm Beach County, Florida. 102 103 PARCEL I 104 Lot 12, Block 6, Original Town of Boynton, according to the plat thereof, as 105 recorded in Plat Book 1, Page 23, of the Public Records of Palm Beach County, 106 Florida. 107 108 Address: 529 E Ocean Ave 109 PCN: 08434528030060120 110 Legal Description: 111 PARCEL 1: 112 Lot 10, Less the South 8 feet thereof, and the West 7 feet 8 inches of Lot 11, Less 113 the South 8 feet thereof, Block 6, Boynton, according to the plat thereof, as 114 recorded in Plat Book 1, Page 23, of the Public Records of Palm Beach County, 115 Florida. 116 117 PARCEL 2: 118 The East 42 feet 4 inches of Lot 11, Less the South 8 feet thereof, in Block 6, 119 Boynton, according to the plat thereof, as recorded in Plat Book 1, Page 23, of the 120 Public Records of Palm Beach County, Florida. 121 122 PARCEL I 123 Lot 12, Block 6, Original Town of Boynton, according to the plat thereof, as 3 S:ACA\Ordinances\Planning\Rezoning\The Pierce - Rezone - Ordinance.Docx Page 176 of 971 124 recorded in Plat Book 1, Page 23, of the Public Records of Palm Beach County, 125 Florida. 126 127 128 PROPERTY 8: 129 Address: 101 N Federal Hwy 130 PCN: 08434528030060130 131 Legal Description: 132 133 TRACT 1: 134 All of the North 58.25 feet of Lot 14 and all of the East 9 feet of the North 58.25 135 feet of Lot 13, Block 6 original townsite of Boynton, Florida, according to a plat 136 thereof on file in Plat Book 1, Page 23, Palm Beach County, Florida public records, 137 and also according to the attached sketch of Lot 14 and East 9 feet of Lot 13, Block 138 6, original townsite of Boynton, Florida, surveyed and prepared by George S. 139 Brockway, Engineer, under date of December, 1939, and marked on said sketch as 140 "Tract 1 "; also 141 142 TRACT 2: 143 All of the South 68 feet of Lot 14 and the East 9 feet of South 68 feet of Lot 13, 144 Block 6, original townsite of Boynton, Florida, according to a plat thereof on file in 145 Plat Book 1, Page 23, Palm Beach County, Florida public records, and also 146 according to the attached sketch of Lot 14 and East 9 feet of Lot 13, Block 6, 147 original townsite of Boynton, Florida, surveyed and prepared by George S. 148 Brockway, Engineer, under date of December 1939, and marked on said sketch as 149 "Tract 2". 150 151 TRACT I 152 West 41 feet of Lot 13 in Block 6 of the Town of Boynton, Palm Beach County, 153 Florida, according to the plat thereof on file in the office of the Clerk of the Circuit 154 Court in and for Palm Beach County, Florida, recorded in Plat Book 1, Page 23. 155 LESS AND EXCEPT 156 The East 10 feet of Lot 14 and the South 8 feet, less the East 10 feet thereof, of Lot 157 14, Block 6, Original Town of Boynton, according to the plat thereof as recorded in 158 Plat Book 1 at Page 23 of the Public Records of Palm Beach County, Florida; being 159 in Section 28, Township 45 South, Range 43 East. 160 And 161 That part of the aforementioned Lot 14, Block 6 of Original Town of Boynton, which 162 is included in the external area formed by a 12 foot radius arc tangent to a line 8 163 feet North of and parallel to the South line of said Lot 14 and tangent to a line 10 164 feet West of and parallel to the East line of said Lot 14; subject to the existing right - 165 of -way for Ocean Avenue. 166 167 4 S:ACA\Ordinances\Planning\Rezoning\The Pierce - Rezone - Ordinance.Docx Page 177 of 971 168 Section 3. That the aforesaid Revised Zoning Map of the City shall be amended 169 accordingly. 170 Section 4. All ordinances or parts of ordinances in conflict herewith are hereby repealed. 171 Section 5. Should any section or provision of this Ordinance or any portion thereof be 172 declared by a court of competent jurisdiction to be invalid, such decision shall not affect the 173 remainder of this Ordinance. 174 Section 6. This ordinance shall become effective immediately upon passage. 175 FIRST READING this 21st day of February, 2023. 176 SECOND, FINAL READING and PASSAGE this day of March, 2023. 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 ATTEST: 192 193 194 Maylee De Jesus, MPA, MMC 195 City Clerk 196 197 198 (Corporate Seal) 199 200 201 202 CITY OF BOYNTON BEACH, FLORIDA YES NO Mayor — Ty Penserga Vice Mayor —Angela Cruz Commissioner —Woodrow L. Hay Commissioner — Thomas Turkin Commissioner —Aimee Kelley 5 S:ACA\Ordinances\Planning\Rezoning\The Pierce - Rezone - Ordinance.Docx VOTE Ty Penserga Mayor APPROVED AS TO FORM: Michael D. Cirullo, Jr. City Attorney Page 178 of 971 Page 179 of 971 DEVELOPMENT DEPARTMENT PLANNING AND ZONING DIVISION MEMORANDUM NO. PZ 23-009 STAFF REPORT TO: Chair and Members Planning and Development Board THRU: Amanda B. Radigan, AICP, LEED AP Planning and Zoning Director,Aa/,2 FROM: Craig Pinder, Planner II DATE: January 19, 2023 PROJECT: The Pierce Rezoning (REZN 22-001) REQUEST: Approval of The Pierce Rezoning (REZN 22-001) from Central Business District (CBD) to Mixed -Use Core (MU -C) with a master plan for 300 multi -family residential units and 17,015 square feet of commercial square footage. PROJECT DESCRIPTION Property Owners: Boynton Beach CRA & BB QOZ LLC Applicant: BB QOZ, LLC Agents: Rebecca Zissel/Sachs Sax Caplan, P.L. Location: Generally located at northwest corner of Ocean Avenue and Federal Highway, extending north to Boynton Beach Boulevard and Federal Highway, extending west to NE 4th Street and Federal Highway, and south to approximately one- half block north of Ocean Avenue (Exhibit A) Existing Land Use/ Zoning: Mixed Use -High (MXH)/ Central Business District (CBD) Proposed Land Use/ Zoning: Mixed Use -High (MXH)/ Mixed Use -Core (MU -C) Proposed Use: Mixed-use project with 300 multi -family units and approximately 17,089 square feet of commercial space Page 180 of 971 The Pierce Rezoning (REZN 22-001) Memorandum No PZ 23-009 Page 2 Acreage: 3.04 acres Adjacent Uses: North: To the north, right-of-way of Boynton Beach Boulevard, then further north, developed commercial properties classified Mixed Use High (MXH) and zoned Central Business District (CBD); South: To the southwest, the Dewey Park classified Mixed Use High (MXH) zoned Central Business District (CBD); to the south, right-of-way of Ocean Avenue, then further south, a mixed-use project AKA 500 Ocean classified MXH and zoned Mixed Use - Core (MU -C); East: To the east and northeast, developed commercial properties classified Mixed Use -High (MXH) and zoned Central Business District (CBD); on the southeast, right-of-way for Federal Highway, then an undeveloped property classified MXH and zoned Mixed -Use Core (MU -C); West: Right-of-way of NE 4t" Street, then an undeveloped parcel classified Mixed Use -High (MXH) and zoned Central Business District (CBD). BACKGROUND The Pierce development is proposed for 3.04 acres located within the Downtown District as defined by the CRA Community Redevelopment Plan (CRA Plan). The project site is an assemblage of properties consisting of eight (8) developed and undeveloped parcels, including one- and two-story commercial buildings and surface parking lots. The parcels are classified as Mixed -Use High (MXH) allowing a maximum density of 100 dwelling units per acre (du/ac), and zoned Central Business District (CBD). The developer has requested to rezone the parcels to Mixed Use -Core (MU -C), a zoning designation corresponding to the MXH future land use classification. The requested zoning district allows a maximum density of 80 du/ac; the underlying future land use classification maximum density may be realized through density bonuses outlined within the Land Development Regulations (LDR). The requested MU -C zoning designation is consisted with the CRA Plan. The applicant proposes to develop a mixed-use project with 300 multi -family rental units and approximately 17,089 square feet of ground commercial space including restaurants fronting Boynton Beach Boulevard and Ocean Avenue, retail adjacent to NE 4t" Street, office spaces adjacent to Federal Highway, and a freestanding parking garage (Exhibit F — Site Plan and Master Plan). The proposed density of 99 du/ac exceeds the requested zoning district's maximum density (80 du/ac); however, the developer proposes to participate in the City's Workforce Housing Program. Per LDR, the maximum density S:APlanning\SHARED\WP\PROJECTS\The Pierce - 101 N Federal (fka 115 N Federal Hwy)APEZN 22-001\The Pierce Staff Report REZN 22- 001 Final.doc 2 Page 181 of 971 The Pierce Rezoning (REZN 22-001) Memorandum No PZ 23-009 Page 3 within the MU -C zoning district may be increased by twenty-five percent (25%) for projects located within the Downtown Transit -Oriented Development District (DTODD), with participation in the City's Workforce Housing Program. Currently, there are three existing projects within close proximity to the project site that are zoned MU -C, including 500 Ocean, Casa Costa, and Marina Village. In addition, the Broadstone Boynton Beach site plan has received approval under MU -C zoning, and is currently in the building permit process seeking approval for construction. REVIEW BASED ON CRITERIA The criteria used to review rezonings are listed in the Land Development Regulations, Chapter 2, Article II, Section 2.D.3. These criteria are required to be part of a staff analysis when the proposed change includes a rezoning. a. Demonstration of Need. Whether the proposed amendments to the FLU and zoning maps are supported by the implementation of the city's vision for, or changes in the conditions or character of development in, the area under consideration. Ongoing or anticipated market trends may also be considered in a justification Statement provided as part of the application. The requested rezoning of the subject site aligns with the CRA Plan that calls for a vibrant downtown where people can live, work, and play in an environment that's bikeable and walkable. This vision is implemented through the development of the highest density and intensity projects, supported by the City's most intense FLU and zoning designations, and by providing the opportunity for additional density bonuses for developments located within the DTODD. In addition, a heightened rationale for intensification of downtown development has been driven by the planned Coastal Link commuter train station, which the 2012 Florida Department of Transportation's TOD Guidebook would classify as a Community Center station, requiring gross density between 11 and 16 du/ac. In support of creating a `transit -ready' downtown, the development includes improvements to the existing pedestrian facilities by providing street trees and sidewalks that are a minimum width of 10' along the perimeter of the site. Bicycle racks and a public bike share station are also included in support of a multimodal transportation environment, consistent with the vision of the Boynton Beach Complete Streets Mobility Plan. As stated in the applicant's justification statement (Exhibit E), the project proposes 300 dwelling units, or a density of approximately 99 du/ac and approximately 17,089 square feet of commercial space. The amendment to the zoning map is necessary for the continued implementation of the city's vision as described in the CRA Plan. b. Consistency. Whether the proposed amendments to the FLU and zoning maps would be consistent with, and promote, the purpose and intent of the applicable Comprehensive Plan policies, Redevelopment Plans, or any other current city - approved planning documents. The Proposed MU -C zoning district is consistent with the recommendation of the 2016 S:APlanning\SHARED\WP\PROJECTS\The Pierce - 101 N Federal (fka 115 N Federal Hwy)APEZN 22-001\The Pierce Staff Report REZN 22- 001 Final.doc 3 Page 182 of 971 The Pierce Rezoning (REZN 22-001) Memorandum No PZ 23-009 Page 4 CRA Plan, Boynton Beach Complete Streets Mobility Plan, and the City's Comprehensive Plan. The MU -C zoning district is intended to replace the existing CBD zoned parcels classified as MXH, upon request from the developer. The rezoning is also consistent with the following Comprehensive Plan policies: Policy 1.12.1 The City shall continue to utilize Workforce Housing program to facilitate the construction of affordable rental and for sale housing units. Policy 1.18.1 The City shall continue to implement the Transit -Oriented Development (TOD) approach, as described in the 2012 Florida Department of Transportation's TOD Guidebook, to manage future growth within the Downtown TOD District (a % mile radius around the intersection of Ocean Avenue and the Florida East Coast rail corridor, the anticipated location of the Downtown Boynton Beach Station for the planned commuter Tri -Rail Coastal Link service on the FEC Corridor). The inner -mile core of this District shall be designed to accommodate the greatest density and intensity of development. Policy 1. 18.2 The City shall aim to transform the Downtown TOD District area into an active, mixed-use, pedestrian -friendly activity zone, supporting new housing to increase potential ridership, intensifying land development activity, and adding amenities and destination uses for future transit riders. The City shall strive to achieve this goal through facilitating compact, high density and intensity development of a varied mix of land uses. c. Compatibility. The application shall consider whether the proposed future land use and zoning, or potential uses allowed in a proposed zoning district, would be compatible with the surrounding uses in terms of density, scale, and the nature of use, or when such an amendment would normally create an isolated zoning district but would result in the incremental implementation of a redevelopment plan for the area. The proposed location of the freestanding parking garage is currently proposed to encroach into the the required landscape buffer at the east property line. A relief application requesting a variance (ZNCV 23-002) of seven (7) feet from the required twelve (12) foot landscape buffer, to allow for a five (5) foot wide landscape buffer, and the elimination of the requirement to provide a six (6) foot tall masonry wall has been submitted and staff recommends denial of the variance (refer to staff report ZNCV 23- 002). However, the proposed master plan, supported by the subject rezoning, would be compatible in scale and character with several nearby developments that are either already constructed, in permitting, or approved. As stated in criterion "b", the proposed MU -C zoning designation is consistent with the recommendations of the CRA Plan and Comprehensive Plan, and implements the MXH future land use classifcation as identified on the City's Future Land Use Map. The proposal will not create an isolated zoning district, as the properties to its south (500 Ocean) and east (approved Ocean One site) are zoned MU -C. In addition, all neighboring properties immediately north, south, east, and west of the proposed project and immediately west of the FEC tracks currently carry S:APlanning\SHARED\WP\PROJECTS\The Pierce - 101 N Federal (fka 115 N Federal Hwy)APEZN 22-001\The Pierce Staff Report REZN 22- 001 Final.doc 4 Page 183 of 971 The Pierce Rezoning (REZN 22-001) Memorandum No PZ 23-009 Page 5 the MXH future land use category, while several nearby developments, either built (500 Ocean, Marina Village and Casa Costa) or approved (Ocean One, Broadstone, and The Villages), are zoned MU -C. The existing CBD zoning of the properties assembled for the project is being gradually phased out and replaced with mixed-use zoning designations corresponding to the MXH and MXM future land use categories. The proposed rezoning would continue the implementation of the land use pattern envisioned for the Downtown District by the CRA Plan. Note that the CRA Plan's FLU recommendation for the areas north, east, and west of the proposed project is Mixed Use High (MXH). This classification carries a maximum density of 100 du/ac that is achievable with receiving a 25% density bonus through participation in the City's Workforce Housing Progam or by providing "half units" as defined by the LDR. d. Orderly Growth. Whether the proposed amendments to the FLU and zoning maps would encourage piecemeal development or create undevelopable parcels. As stated in the responses for criteria "b" and "c", the proposed rezoning is consistent with the recommendations of the CRA Plan and Comprehensive Plan. The CRA Plan identifies the need for an assemblage of parcels within the Downtown District due to a lack of developable land. The proposal represents an assemblage of eight (8) parcels, all of which are proposed to be rezoned to MU -C, and will meet the minimum building and site regulations for the zoning district. The surrounding parcels are currently zoned CBD and will not be negatively impacted by the proposed rezoning. Therefore, the proposed amendment would not result in the creation of an undevelopable parcel(s). Furthermore, the proposal is accompanied by a master plan for a mixed-use multi -story building with multi -family units, commercial space, and a parking structure. The assemblage of parcels for the master planned development further discourages piecemeal development. e. Location Efficiency. Whether the proposed amendments to the FLU and zoning maps would support complementary land uses, the integration of a mix of land uses consistent with smart growth or sustainability initiatives; access to a wide range of mobility options, or interconnectivity within the project and between adjacent properties. See the response to criterion "c," as well as response to criterion "d". The proposed amendment to the zoning map is consistent with the vision of the Downtown District embedded in the CRA Plan, and will be complementary with the existing development and future redevelopment of the surrounding areas as the implementation of the CRA Plan continues. In addition, the existing MXH FLU classification of the parcels is intended to allow for the most intense development within the city, and the proposed MU -C urban zoning district implements the MXH category. Part III, Chapter 3, Article III, Sec.5.A.1 of the LDR states "the urban mixed-use zoning districts are intended to implement the CRA Plan by providing for a mixture of land uses, accommodating varying densities and intensities appropriate for each CRA district, and by establishing quality streetscapes and pedestrian environments as part of a compact S:APlanning\SHARED\WP\PROJECTS\The Pierce - 101 N Federal (fka 115 N Federal Hwy)APEZN 22-001\The Pierce Staff Report REZN 22- 001 Final.doc 5 Page 184 of 971 The Pierce Rezoning (REZN 22-001) Memorandum No PZ 23-009 Page 6 urban setting." The proposed master plan provides for a mix of uses (residential and commercial) and a variety of pedestrian amenities including wide sidewalks and street trees. In addition, the development will support multi -modal transportation, is positioned to support the anticipated commuter train station, and is consistent with the LDR's purpose and intent for the urban mixed-use zoning districts. f. Availability of Public Services/Infrastructure. All requests for FLUM amendments shall be reviewed for long-term capacity availability at the maximum intensity permitted under the requested land use classification. Requests for rezoning to planned zoning districts and FLUM amendments shall be subject to review pursuant to Chapter 1, Article VI Concurrency. This request is for rezoning only. The long-term capacity availability for potable water, sewer, and solid waste was reviewed earlier as a part of the area -wide FLUM amendment following the adoption of the CRA Plan. (The Palm Beach County Solid Waste Authority determined that sufficient disposal capacity will be available at the existing landfill through approximately the year 2046.) Developments located within the Transportation Concurrency Exception Area (TCEA) are not subjected to standard traffic concurrency analyses. Nonetheless, the traffic impact analysis was submitted to the Palm Beach County Traffic Division, with the findings of 1,664 net new daily trips, 126 new am peak hour trips and 115 new pm peak hour trips. Since the subject property is within the Traffic Concurrency Exception Area, it is exempt from the Palm Beach County Traffic Performance Standards. The applicant has submitted a School Capacity Availability Determination (SCAD) application to the PBC School District for review, and approval of the new major site plan and master plan applications are conditioned upon receiving a SCAD approval letter. Drainage will be reviewed in detail as part of the site plan, land development, and building permit review processes. g. Economic Development Impact. (1) Whether the proposed rezoning/FLUM amendments would not- a. Represent a potential decrease in the possible intensity of development, given the uses permitted in the proposed land use category and/or zoning district, and b. Represent a potential decrease in the number of uses with high probable economic development benefits. (2) Whether the proposed rezoning/FLUM amendments would: a. Create new employment opportunities,- b. pportunities,b. Contribute to the enhancement and diversification of the city's tax base,- c. ase,c. Respond to the current or anticipated market demand or community needs, or d. Alleviate economic obsolescence of the subject area. S:APlanning\SHARED\WP\PROJECTS\The Pierce - 101 N Federal (fka 115 N Federal Hwy)APEZN 22-001\The Pierce Staff Report REZN 22- 001 Final.doc 6 Page 185 of 971 The Pierce Rezoning (REZN 22-001) Memorandum No PZ 23-009 Page 7 The proposed rezoning would not represent a decrease in the possible intensity of development, nor would it represent a decrease in the number of uses with high probable economic development benefits. The proposed project generates economic development benefits as it presents an opportunity to become yet another contributor to a successful, lively downtown, by bringing more development to the area and attracting more residents and visitors to the city. Moreover, the density increase in the DTODD is essential for support of a future commuter service stop. The direct impact on job generation would be modest; however, there will be substantial indirect effects through increased demand for retail and restaurant uses. The project also has the potential to add a significant contribution to the City's tax base. Market demand for apartment rentals is high, especially apartment units that are affordable. The project will be a mixed -income housing development that will include apartment units at an attainable price -point through participation in the City's Workforce Housing Program. h. Heavy Commercial and Industrial Land Supply. The review shall consider whether the proposed rezoning/FLUM amendment would reduce the amount of land available for commercial/industrial development. If such determination is made, the approval can be recommended under the following conditions: (1) The size, shape, and/or location of the property makes it unsuitable for commercial/industrial development, or (2) The proposed rezoning/FLUM amendment provides evidence of satisfying at least two (2) of the Direct Economic Development Benefits listed in subparagraph above. The subject property is currently classified as Mixed Use High. The proposed rezoning corresponds to that FLU classification and does not affect the type of land uses allowed on the property. The project includes approximately 17,089 square feet of commercial uses. RECOMMENDATION Staff has reviewed the proposed rezoning and recommends DENIAL based on the recommendation of denial for variance request ZNCV 23-002; however, should the City Commission approve the applicant's request for a variance for relief from Part III, Chapter 4, Article II, Section 4.B.3.c Urban Landscape Buffer (Type 2); then staff recommends APPROVAL of The Pierce Rezoning (REZN 22-001) based on the findings that the project implements the CRA Community Redevelopment Plan and the Comprehensive Plan objectives and policies, and is consistent with the Complete Streets Mobility Plan. S:APlanning\SHARED\WP\PROJECTS\The Pierce - 101 N Federal (fka 115 N Federal Hwy)APEZN 22-001\The Pierce Staff Report REZN 22- 001 Final.doc 7 Page 186 of 971 Page 187 of 971 Page 188 of 971 Page 189 of 971 I Page 190 of 971 Exhibit E ProjectNarrative- The Pierce, Rezoning �, �1 & C I 1 This application for Rezoning is submitted on behalf of BB QOZ, LLC (the "Applicant") for the project known as The Pierce. Applications for a New Master Plan, New Major Site Plan, Abandonments, Community Design Appeals, and Height Exception are being submitted concurrently. Pursuant to Section 2.1) of the Boynton Beach, FL Code of Ordinances, Part III Land Development Regulations (the "Land Development Regulations") Chapter 2, Article II, this application would seek to change the zoning designation of the subject property from Central Business District (CBD) to Mixed -Use Core (MU -C) including a Master Plan. The rezoning is consistent with the Future Land Use Map (FLUM) classification of Mixed -Use High (MXH), and no amendment to the FLUM classification is proposed. The rezoning application meets the criteria specified in Section 2.D.3 of Chapter 2, Article II of the Land Development Regulations as follows: a. Demonstration of Need The proposed amendment to the zoning designation is necessary for and supported by implementation of the city's vision for development in the area. The Pierce will be constructed on underutilized and largely vacant property. It is the first luxury apartment building constructed in east Boynton Beach with Class A features and amenities at an attainable price -point. The Pierce will add 300 new households to the community and over 17,015 SF of restaurant/retail/office space. The developer will provide 150 parking spaces in the parking garage for use by the general public for enhancement of the downtown. b. Consistency The proposed amendment to the zoning map is consistent with, and promotes, the purpose and intent of Comprehensive Plan policies, Redevelopment Plans, and other city -approved planning documents, including but not limited to the following: - Comprehensive Plan, Future Land Use Element, Objective 1.8: This is a compact project that promotes a compact urban development pattern and discourages sprawl. - Comprehensive Plan, Future Land Use Element, Policy 1.11.1: Provides multi -family rental housing for a broad range of income groups. - Comprehensive Plan, Future Land Use Element, Objective 1.12 and Policy 1.12.1: Provides workforce housing to maintain a diversified and sustainable City having character and sense of community where people can live and work in the same area. c. Compatibility The proposed MU -C zoning designation is compatible with the surrounding uses in terms of density, scale, and nature of use. Many surrounding properties are zoned MU -C, including the property directly east across Federal Highway, the property diagonally northeast along Federal Highway, and the property directly south across E Ocean Avenue. d. Orderly Growth The proposed amendment to the zoning map encourages orderly growth. This is a 3 -acre parcel in an area compatible with the proposed zoning designation. The current and proposed zoning designations both make sense for the downtown area. The parcels that compose this large underutilized and largely vacant property Page 191 of 971 The Pierce, Rezoning Narrative Page 12 have been combined for this project. The proposed use, which includes 300 residential units, 17,015 SF of restaurant/retail/office space, and additional parking for use by the public will contribute to the area and encourage further development of neighboring properties. In this way, it is in sync with the City's goals for redevelopment of the downtown area. Accordingly, it will not encourage piecemeal development. Likewise, the proposed amendment to the zoning map would not create undevelopable parcels. The plans take underutilized and largely vacant property and propose a development that will contribute to the neighborhood. The property adjacent to the proposed development that would remain at the existing zoning is currently occupied with active businesses that will remain in operation. The adjacent parcel's existing zoning of CBD will allow for multiple development opportunities that would make sense at the location if in the future redevelopment is desired at that site. e. Location Efficiency The proposed amendment to the zoning map would support complementary land uses. The Future Land Use designation of the site is Mixed Use High (MXH). This is a designation intended for areas east of I- 95 that allows for high-density mixed-use projects. MU -C Zoning is defined in Part III of the Land Development Regulations, Chapter 3, Article III, Sec. 5.A.2.e as a district that "implements the Mixed Use High (MXH) future land use map (FLUM) classification of the Comprehensive Plan." The permitted uses in the zoning district include high-density mixed-use projects like those contemplated in the comprehensive plan for MXH designated areas. Accordingly, the proposed amendment to MXH would support complementary land uses. The amendment would also support the integration of a mix of land uses consistent with smart growth and sustainability initiatives. Chapter 3, Article III, Sec.3.E.1 of Part III of the Land Development Regulations discusses the general intent of the CBD Zoning District. It says "The CBD Zoning district was established with the intent to serve the entire community, create a high volume of pedestrian activity, provide business, recreation and residential opportunities, and maximize the potential of the waterfront. The district is considered the predecessor to the high density urban mixed use zoning districts, and will eventually be supplanted by them." (emphasis added). Uses allowed under the current CBZ zoning include residential uses in mixed-use buildings as well as various retail/commercial/office uses. This type of development is the type contemplated in the land development regulations for smart growth. As described in the accompanying narratives for this project, it also supports sustainability initiatives. We refer to those narratives for reference as to the details of the sustainability features. f. Availability of Public Services/Infrastructure The proposed rezoning meets the requirements of Chapter 1, Article VI Concurrency as follows: 1. Potable Water, Sanitary Sewer, Drainage, and Solid Waste. The applicant will pay the Capital Facilities Charges and Connection Charges for Potable Water, Sanitary Sewer, Drainage, and Solid Waste as applicable. The development agreement guarantees that the necessary facilities and services will be in place when the development impacts occur. 2. Parks and Recreation The applicant has complied with the requirements of the Parks and Recreation Facilities Impact Fee ordinance. Page 192 of 971 The Pierce, Rezoning Narrative 3. Roads Page 13 The applicant has complied with the requirements of Palm Beach County Traffic Performance Standards (TPS) ordinance. The traffic analysis that was performed evaluates the level of service (LOS) at intersections in the vicinity of the site. As noted in the traffic study, the adopted LOS D standard is anticipated to be met at all intersections evaluated throughout buildout of this project. g. Economic Development Impact The proposed rezoning would not represent a potential decrease in the possible intensity of development, nor would it represent a potential decrease in the number of uses with high probable economic development benefits. The Pierce is a development project bringing in 300 apartment units with state-of-the-art amenities, secure parking, interactive public spaces, restaurant, retail and office use and public parking. The Pierce will create a new live -work -play destination in East Boynton Beach, helping catalyze the area and creating the potential for redevelopment of nearby properties. In addition, the proposed rezoning would contribute to the enhancement and diversification of the city's tax base. The project will be constructed on underutilized and largely vacant property, which creates very little property tax generation to the City. The Pierce is adding 300 new households to the community and over 17,015 SF of restaurant/retail/office space which will greatly contribute to the local area spending, business development and investment. The proposed rezoning also responds to market demand and community needs. It is the first luxury apartment building constructed in east Boynton Beach with Class A features and amenities at an attainable price -point for the City's workforce. As a mixed -income housing development, all tenants will benefit from the same luxury finishes and amenities, regardless of income. h. Heavy Commercial and Industrial Land Supply The amendment to the zoning map would not reduce the amount of land available for commercial/industrial development. Page 193 of 971 AEEILIATED QMRINKA+ 0 Revisions SITE PLAN APPROVAL THE PIERCE ARCHITECTURAL SITE PLAN & SITE DATA J I AEEILIATED Q=RINKA+ m 0 Revisions SITE PLAN APPROVAL THE PIERCE MASTER PLAN Page 196 of 971 Page 197 of 971 Executive Summary The Pierce will be a mixed-use development featuring an eight -story multifamily building containing 300 luxury residential rental units connected to a parking garage that contains parking for the project's private uses as well as 150 spaces dedicated to the public, so that visitors to the area can park and walk conveniently to the project's restaurants, retail and office attractions. With over 61 % of our project's overall site area accessible by the public, The Pierce ensures enhanced pedestrian connectivity throughout the project. Strategically spanning across the project site, The Pierce contains an assortment of uses that combine to create continual activity and energy. Anchoring the north end of the site on Boynton Beach Blvd will be the new home for Boynton Beach's local mainstay, Hurricane Alley. The site's north end and parking garage will connect along 4th Street where pedestrians will pass by retail space and Dewey Park to make their way to the restaurants and caf6 fronting Ocean Avenue. The "hard corner" on Ocean Ave and Federal Hwy will display a large marine and educational monumental art piece for residents and visitors to enjoy and learn more about Boynton Beach's marine life. The Pierce residences is situated in the center of the site and will function as the nucleus that fuels the project's daytime and nighttime vitality. Residents of The Pierce will experience best -in -class amenities spread throughout the building and grounds. The urban design, abundant amenity offerings and luxury finishes was created to offer an elevated and different living experience from other Boynton Beach apartment options. The Pierce offers something for everyone who wishes to truly embody the live, work, play mantra. 150 of the project's 300 units will be offered at workforce level rates that are attainable to the hard working individuals and families that desire a luxury living experience at an attainable rate. The mixed -income approach fosters a healthy, diverse urban environment, and will help make this area of Boynton Beach a true urban oasis. =PIERCE Project Video F 1-1 E F"", I E R (I',""" E A 1",,l I I'vA A F I C) 1""I Applications • Rezoning from Central Business District (CBD) to Mixed -Use Core (MU -C) • New Master Plan • New Major Site Plan • Abandonments • South Alley • Portion of NE 1st Ave • Portion of North Alley • Four Community Design Appeals for the Parking Garage • Height Exception for the Parking Garage =PIERCE a Rezoning from Central Business District (CBD) to Mixed -Use Core (MU -C) Meets the Criteria in Section 2.D.3 of Chapter 2, Article II of the LDRs: ✓ Demonstration of Need ✓ Consistency with city planning documents ✓ Compatibility with surrounding uses ✓ Orderly Growth ✓ Location Efficiency ✓ Availability of Public Services/Infrastructure ✓ Economic Development Impact ✓ Heavy Commercial and Industrial Land Supply =PIERCE 9 Master Plan & Major Site Plan New Master Plan Meets the Criteria in Section 2.D.6 of Chapter 2, Article II of the LDRS: 1) Zoning and Standards Compliance: complies with the requirements of the respective zoning district regulations and site development standards. 2) Diagrams: submittal includes diagrams which illustrate the location of uses and density on the site. New Major Site Plan Meets the Criteria in Section 2.F of Chapter 2, Article II of the LDRS: 1) The site plan complies with the requirements of the respective zoning district regulations and site development standards. 2) The site plan is consistent with the master plan. 10 New Master Plan &New Major Site Plan The project complies with the location and general use requirements applicable to the Mixed -Use Core district as follows: 1. The future land use classification of the land is mixed use -high (MX -H). 2. The development is a high density/intensity development intended for the downtown area. It includes a mix of uses designed in a compact vertical style. 3. The development fronts on Federal Highway, which is designated as an "arterial" roadway on the Functional Classification of Roadways Map. 11 Four Community Design Appeals • Code Requirement: • Freestanding parking garages are allowed within the Mixed -Use (Urban) Districts provided they do not have frontage on any arterial or collector roadway. • Proposed Design: • Freestanding parking garage that fronts 4t" Street The Code provides for the Community Design Appeal process to allow for flexibility and alternative ways to meet the intent of the Code to yield high quality design, architectural detail, and visual interest without negative impacts to the subject site or surrounding properties. 1 10 '1 Nk. 13 North Garage Elevation • Vertical landscaping at the base • Lush landscape buffer • Large area for projecting movies/sport games as well as public events in open space area between Hurricane Alley and parking structure =PIERCE 1< South Garage Elevation • Decorative metal fencing • Bike -themed mural element • Horizontal projections and overhangs to provide shading over pedestrian walkways • Integrated perforated metal screen wraps from the East side of facade 15 West Garage Elevation • Vertical landscaping elements at the base • "Welcome to Boynton Beach" image integrated into a vertical perforated metal screen 17 Four Community Design Appeals Meets the Criteria in Chapter 2, Article II, Sec. 4.13.3: ✓ Consistency with the Comprehensive Plan ✓ Will not significantly detract from the Livability or Appearance of the city and will be consistent with the established or desired character ✓ Consistency with the Purpose of the standard ✓ Trees or Fauna ✓ Environmental Impacts ✓ Impact on Property Values ✓ Light and Air ✓ Furthers objectives of the City ✓ Other Standards and Requirements W., Height Exception for the Parking Garage Code requirement: Max 75' Feet Proposed: Egress staircase extends to 77' 11" Meets the Criteria in Chapter 2, Article II, Sec. 4.C.3: ✓ Will not adversely affect: 1) light and air; 2) property values; 3) living conditions; or 4) existing or proposed land uses ✓ Would not be a deterrent to development or improvement of adjacent properties ✓ Would contribute to architectural character and form of the project ✓ Would positively contribute to the city's desired image, streetscape design, or recommendation of any applicable redevelopment plan ✓ Would contribute to sustainable development and other green initiatives ✓ Is necessary and not proposed in a manner with which the objective is to maximize project visibility without concern for architectural or aesthetic integrity ✓ Sufficient evidence has been presented to justify the need for a height exception. 19 F111 M, I I THE PIERCE AMENITIES C3 - RETAIL f Fitness center 2 Coworkcollaborafive seating I Bar/Tap Roorn 4 Sports Viewing ilrr I V 5 Wine/S�ar rit Cellar Room 6 BiltiardsShuffell Board!/Darts, 26 P281 30 22 31 132 �36 7 Coffee ao Grab in O Convenience rJ ITT 9 Wine/Sprint Lockers 2 ,.I M 10 Parce[]Package Room with Refrigeration oil 11 Bicycle StorageMike Shop f 12 Ride Share Waiting I V 7r -n - - i 74 Free Bike Sharing 18 IF 'j;;; 1 W, atersports Sharing 4 E_ "1 J 15 Fullness center yogal room L Ftl1 B9 '16 Coworkmicro offices tf 17 Fitness center outdoor crossfil area 18 Wellness room with, infered sauna RI 19 Arcade Games 2 20 Pool with sun shelf 12 21 Pool bar .......... .. 22 Pill Court 311135 23 B'BQ Grill & Outdoor Kitchen 23 2T 24 Covered Outdoor DininglSeating 25 Rooftop Deck �fl At 4 B2 q FM, J f 44 Page 226 of 971 2 0 Al"Ip4l All 26 Hammock Park 27 Pool Cabanas 28 Carne Lawn 29 Dog Park N - TA 1 �Mtl 30 Bocce Ball COLO 23 27 311 Outdoor Gaming Area Pilng Pong, Comhole, ring tol 32 Golf Range Net - ------ 33 14 EV Charging Stations Loading Dock for Move- in s 27' 35 36 Chess(Domino Tables Picniic/Diningi gazebo 37 Car Wash Afea some amenities not pictured �fl At 4 B2 q FM, J f 44 Page 226 of 971 Artin Public Space Art incorporated into prominent public locations • Sculpture of marine inspired theme paying homage to Boynton Beach's main industry • Garage screen on garage west fagade will serve as focal point as you enter The East Boynton Beach District • Requirement - $300,000. Developer will exceed this Requirement *conceptual artistic renderings subject to change =PIERCE 31 Mw Public Hearing 2/21/2023 Requested Action by Commission: Proposed Ordinance No. 23-006- First Reading. Approve request for Abandonment of the 225 -foot long segment of the 20 -foot wide right-of-way located within the northern section of the proposed The Pierce development approximately 175 feet south of the East Boynton Beach Boulevard centerline (a.k.a. "North Alley") (ABAN 22-001), the 225 -foot long segment of the 40 -foot wide NE 1st Avenue right-of-way (ABAN 22-002), and the 335.02 -foot long segment of the 20 -foot wide right-of-way located within the southern section of the proposed The Pierce development, approximately 150 feet north of the East Ocean Avenue centerline (a.k.a "South Alley") (ABAN 22-003). Applicant: Jeffery Burns, Affiliated Development. Explanation of Request: The applicant is requesting three (3) abandonments (ABAN 22 - 001, ABAN 22-002, & ABAN 22-003) in conjunction with the following applications: The Pierce Rezoning (REZN 22-001) to rezone the subject properties from CBD (Central Business District) to Mixed Use -Core (MU -C), and The Pierce Master Plan (MPMD 22-005) and New Major Site Plan (NW SP 22-004) for the development of an 8 -story mixed-use development consisting of approximately 17,089 square feet of ground floor commercial space and a supporting parking garage with a total of 564 parking spaces (see Exhibit "C" Conditions of Approval). The three requests are outlined as follows: North Alley (ABAN 22-0011 The applicant is requesting to abandon the west portion of the alleyway located within the northern section of the site between NE 4th Street and Federal Highway. The North Alley has an existing driveway and provides access to the existing parking lots and neighboring properties. The abandoned land will be transferred in equal portions to the abutting property owner(s) per State Statute. In this case the southern portion of the abandon area will be conveyed and developed for further implementation of The Pierce Master Plan and the northern portion will be conveyed to the abutting properties. The portions of the abandonment within the project boundary will be demolished for the proposed development. ROW of NE 1st Avenue (ABAN 22-002): The applicant is requesting to vacate the west portion of NE 1st Avenue between NE 4th Street and Federal Highway. The segment of the right-of-way to be vacated has an existing driveway that provides access to the existing parking lots and properties to the north and the south which is proposed to be redeveloped and incorporated into The Pierce development. The remaining portion of the right-of-way will continue to serve as access to the properties to the north. South Alley (ABAN 22-003): The applicant is requesting to vacate a full length of the alleyway located within the southern section of the site between NE 4th Street and Federal Highway. The South Alley has an existing driveway that provides access to the properties to the south and the existing parking lot to the north. These properties will be demolished for the implementation of The Pierce Master Plan. The Planning & Development Board recommended APPROVAL of this request during the February 6, 2023 meeting. How will this affect city programs or services? This will not affect City programs or services. Fiscal Impact: There is no fiscal impact to the budget for this item. Page 229 of 971 Alternatives: N/A Strategic Plan: Strategic Plan Application: N/A Climate Action Application: N/A Is this a grant? Grant Amount: Attachments: Type D OrdinainCE) D Staff IRE)port D I ocaboin li ap D Exh �i lb li t D Coindboins of Appirov,-,.ill D Exh �i lb li t 71 IIhIII�I Description Ordinal['IC2, appirtnkng abaindoinirTIENI'lt Of IROW for ME) RiENrCE) Staff IRE)port ExhibitA FlrolPOSEd AbaindoinirTIENI'ItS, Exhibit IBI E�IgallIi:: E)SCripboins aind SkE�ItchE�,S Exhibit C Coindboins of Appirov,,.-,.ill Exh �i bi t ID 1 Appicaint J LAStificaboin S tatENrYIENI'lt (North NIE)Y) Exh �i bi t IC: 2 Appicaint J LAStificaboin S tatENrYIENI'lt (N IE 1 st Ave) Exh �i bi t IC: 3 Appicaint J LAStificaboin S tatENrYIENI'lt (SOLAthAlbly) Page 230 of 971 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 ORDINANCE NO. 23-006 AN ORDINANCE OF THE CITY OF BOYNTON BEACH, FLORIDA, APPROVING THE ABANDONMENT OF THE 225 - FOOT LONG SEGMENT OF THE 20 -FOOT WIDE RIGHT-OF- WAY LOCATED WITHIN THE NORTHERN SECTION OF THE PROPOSED THE PIERCE DEVELOPMENT APPROXIMATELY 175 FEET SOUTH OF THE EAST BOYNTON BEACH BOULEVARD CENTERLINE (A.KA. "NORTH ALLEY"), THE 225 -FOOT LONG SEGMENT OF THE 40 -FOOT WIDE NE 1ST AVENUE RIGHT-OF-WAY, AND THE 335.02 -FOOT LONG SEGMENT OF THE 20 -FOOT WIDE RIGHT-OF-WAY LOCATED WITHIN THE SOUTHERN SECTION OF THE PROPOSED THE PIERCE DEVELOPMENT, APPROXIMATELY 150 FEET NORTH OF THE EAST OCEAN AVENUE CENTERLINE (A.K.A "SOUTH ALLEY"); AUTHORIZING THE CITY MANAGER TO EXECUTE A DISCLAIMER, WHICH SHALL BE RECORDED WITH THIS ORDINANCE IN THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Applicant is requesting three (3) abandonments (ABAN 22 - 001, ABAN 22-002, & ABAN 22-003) in conjunction with the following applications: The Pierce Rezoning (REZN 22-001) to rezone the subject properties from CBD (Central Business District) to Mixed Use -Core (MU -C), and The Pierce Master Plan (MPMD 22-005) and New Major Site Plan (NWSP 22-004) for the development of an 8 -story mixed-use development consisting of approximately 17,089 square feet of ground floor commercial space and a supporting parking garage with a total of 564 parking spaces; and WHEREAS, staff has determined that the requested abandonment would not adversely impact traffic or other City functions, and would not adversely impact other adjacent property owners; and WHEREAS, comments have been solicited from the appropriate City Departments, and public hearings have been held before the City Commission on the proposed abandonment; and WHEREAS, staff has determined that the subject right-of-way no longer serves a public purpose other than retention of a utility easement, if warranted and therefore recommends approval of the request, subject to the accompanying conditions. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA THAT: Section 1. The foregoing whereas clauses are true and correct and incorporated herein by this reference. {S:\CA\Ordinances\Abandonments\Abandonment of ROW (The Pierce) - Ordinance.docx Page 231 of 971 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 Section 2. The City Commission of the City of Boynton Beach, Florida, does hereby abandon the 225 -foot long segment of the 20 -foot wide right-of-way located within the northern section of the proposed The Pierce development approximately 175 feet south of the East Boynton Beach Boulevard centerline (a.k.a. "North Alley"), the 225 -foot long segment of the 40 -foot wide NE 1st Avenue right-of-way, and the 335.02 -foot long segment of the 20 -foot wide right-of-way located within the southern section of the proposed The Pierce development, approximately 150 feet north of the East Ocean Avenue centerline (a.k.a "South Alley"). The property being abandoned is more particularly described as follows: South Alley Legal Description A PORTION OF THE 20' ALLEYWAY AS SHOWN ON ORIGINAL TOWN OF BOYNTON, ACCORDING TO THE MAP OR PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 23, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA. SAID PORTION BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST CORNER OF LOT 7, BLOCK 6, SAID PLAT OF ORIGINAL TOWN OF BOYNTON, PROCEED THENCE ALONG THE NORTH LINE OF SAID ALLEYWAY, ALSO BEING THE SOUTH LINE OF SAID BLOCK 6, N89°46' 59"E A DISTANCE OF 335.02 FEET TO A POINT 10 FEET WEST OF THE PLATTED WEST RIGHT OF WAY OF FEDERAL HIGHWAY (US HIGHWAY NO. 1), SAID POINT BEING THE WEST RIGHT OF WAY LINE OF SAID FEDERAL HIGHWAY PER F.D.O.T. R/W MAP SECTION 93010-2501, SHEET 4 OF 10; THENCE PROCEED ALONG SAID RIGHT OF WAY LINE S01022'36"E A DISTANCE OF 20.00 FEET TO A POINT ON THE SOUTH LINE OF SAID ALLEYWAY; THENCE PROCEED ALONG SAID SOUTH LINE S89046'59"W A DISTANCE OF 335.02 FEET TO A POINT 5.00 FEET EAST OF THE WEST LINE OF SAID BLOCK 6; THENCE PROCEED N01022'36"W A DISTANCE OF 20.00 FEET TO THE POINT AND PLACE OF BEGINNING. CONTAINING 6700.30 SQUARE FEET. Portion of North Alley Legal Description A PARCEL OF LAND BEING A PORTION OF THE 20 FEET WIDE ALLEYWAY IN BLOCK 1, ORIGINAL TOWN OF BOYNTON, ACCORDING TO THE MAP OR PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 23, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA. SAID PARCEL LYING IMMEDIATELY ADJACENT TO LOTS 6 THROUGH 11, AND THE WEST OF LOT 12. BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWEST CORNER OF LOT 7, BLOCK 1, SAID PLAT OF ORIGINAL TOWN OF BOYNTON, PROCEED THENCE ALONG THE NORTH LINE OF SAID ALLEYWAY AND ALSO BINT THE SOUTH LINE OF LOTS 6 AND 7 N89048'41"E A DISTANCE OF 100.00 FEET TO A POINT ON THE SOUTHEAST CORNER OF LOT 6, THENCE DEPARTING SAID LINE PROCEED ALONG THE SOUTHERLY EXTENSION OF THE EAST LINE OF SAID LOT 6 S01022'23"E A DISTANCE OF 10.00 FEET TO A POINT; THENCE PROCEED ALONG A LINE TEN FEET SOUTH OF AND PARALLEL TO THE NORTH LINE OF SAID ALLEYWAY, N89048'41"E A DISTANCE OF 125.00 FEET (SAID LINE BEING THE CENTERLINE OF SAID ALLEYWAY) THENCE PROCEED S01022'36"E TO THE SOUTH LINE OF SAID ALLEYWAY AND INTERSECTION OF THE EAST LINE OF THE WEST f/z OF LOT 12, SAID BLOCK 1, {S:\CA\Ordinances\Abandonments\Abandonment of ROW (The Pierce) - Ordinance.docx Page 232 of 971 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 THENCE PROCEED ALONG THE SOUTH LINE OF SAID ALLEYWAY S89048'41"W A DISTANCE OF 125.00 FEET TO A POINT ON THE EAST RIGHT OF WAY LINE OF NE 4TH STREET (PLATTED AS PALMETTO STREET, SAID POINT ALSO BEING THE NORTHWEST CORNER OF LOT 8, BLOCK 1; THENCE PROCEED N01022'36"W A DISTANCE OF 20.00 FEET ALONG SAID EAST RIGHT OF WAY LINE TO A POINT IN THE SOUTHWEST CORNER OF LOT 7, ALSO BEING THE POINT AND PLACE OF BEGINNING. CONTAINING 3251.00 SQUARE FEET. Portion of NE 1 st Ave Legal Description A PORTION OF THE RIGHT OF WAY OF NE 1 ST AVENUE AS SHOWN ON ORIGINAL TOWN OF BOYNTON, ACCORDING TO THE MAP OR PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 23, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA. SAID PORTION BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWEST CORNER OF LOT 8, BLOCK 1, SAID PLAT OF ORIGINAL TOWN OF BOYNTON, PROCEED ALONG THE NORTH RIGHT OF WAY LINE OF SAID NE 1 ST AVENUE N89048'41"E A DISTANCE OF 225 FEET TO A POINT BEING THE SOUTHEAST CORNER OF THE WEST 1/2 OF LOT 12, BLOCK 1: THENCE DEPARTING SAID NORTH RIGHT OF WAY LINE PROCEED S01022'36"E A DISTANCE OF 40 FEET TO A POINT ON THE SOUTH RIGHT OF WAY LINE OF SAID NE 1 ST AVENUE (ALSO BEING THE NORTH LINE OF BLOCK 6); THENCE PROEED S89048'41"W A LONG SAID SOUTH RIGHT OF WAY LINE A DISTANCE OF 225.00 FEET TO THE NORTHWEST CORNER OF LOT 7, BLOCK 6, ALSO BEING THE INTERSECTION POINT OF THE EAST RIGHT OF WAY LINE OF NE 4TH STREET (PLATTED AS PALMETTO STREET); THENCE PROCEED N01022'36" ALONG SAID EASTERLY RIGHT OF WAY LINE A DISTANCE OF 40.00 FEET TO THE SOUTHWEST CORNER OF LOT 8, BLOCK 1, ALSO BEING THE POINT AND PLACE OF BEGINNING. CONTAINING 9003.59 SQUARE FEET. Section 3. The City Manager is hereby authorized and directed to execute the attached Disclaimer and cause the same to be filed, with this Ordinance, in the Public Records of Palm Beach County, Florida. Section 4. This Ordinance shall take effect immediately upon passage. FIRST READING this 21st day of February, 2023. SECOND, FINAL READING AND PASSAGE THIS CITY OF BOYNTON BEACH, FLORIDA {S:\CA\Ordinances\Abandonments\Abandonment of ROW (The Pierce) - Ordinance.docx day of March, 2023. YES NO Page 233 of 971 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 Mayor — Ty Penserga Vice Mayor —Angela Cruz Commissioner —Woodrow L. Hay Commissioner — Thomas Turkin Commissioner —Aimee Kelley ATTEST: VOTE Maylee De Jesus, MPA, MMC Ty Penserga City Clerk Mayor (Corporate Seal) {S:\CA\Ordinances\Abandonments\Abandonment of ROW (The Pierce) - Ordinance.docx APPROVED AS TO FORM: Michael D. Cirullo, Jr. City Attorney Page 234 of 971 DISCLAIMER KNOW ALL MEN BY THESE PRESENTS that the City Commission of the City of Boynton Beach, Florida, does hereby abandon the 225 -foot long segment of the 20 -foot wide right-of- way located within the northern section of the proposed The Pierce development approximately 175 feet south of the East Boynton Beach Boulevard centerline (a.k.a. "North Alley"), the 225 -foot long segment of the 40 -foot wide NE 1st Avenue right-of-way, and the 335.02 -foot long segment of the 20 - foot wide right-of-way located within the southern section of the proposed The Pierce development, approximately 150 feet north of the East Ocean Avenue centerline (a.k.a "South Alley"). The property being abandoned is more particularly described as follows: South Alley Legal Description A PORTION OF THE 20' ALLEYWAY AS SHOWN ON ORIGINAL TOWN OF BOYNTON, ACCORDING TO THE MAP OR PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 23, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA. SAID PORTION BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST CORNER OF LOT 7, BLOCK 6, SAID PLAT OF ORIGINAL TOWN OF BOYNTON, PROCEED THENCE ALONG THE NORTH LINE OF SAID ALLEYWAY, ALSO BEING THE SOUTH LINE OF SAID BLOCK 6, N89046'59"E A DISTANCE OF 335.02 FEET TO A POINT 10 FEET WEST OF THE PLATTED WEST RIGHT OF WAY OF FEDERAL HIGHWAY (US HIGHWAY NO. 1), SAID POINT BEING THE WEST RIGHT OF WAY LINE OF SAID FEDERAL HIGHWAY PER F.D.O.T. R/W MAP SECTION 93010-2501, SHEET 4 OF 10; THENCE PROCEED ALONG SAID RIGHT OF WAY LINE S01022'36"E A DISTANCE OF 20.00 FEET TO A POINT ON THE SOUTH LINE OF SAID ALLEYWAY; THENCE PROCEED ALONG SAID SOUTH LINE S89046'59"W A DISTANCE OF 335.02 FEET TO A POINT 5.00 FEET EAST OF THE WEST LINE OF SAID BLOCK 6; THENCE PROCEED N01022'36"W A DISTANCE OF 20.00 FEET TO THE POINT AND PLACE OF BEGINNING. CONTAINING 6700.30 SQUARE FEET. Portion of North Alley Legal Description A PARCEL OF LAND BEING A PORTION OF THE 20 FEET WIDE ALLEYWAY IN BLOCK 1, ORIGINAL TOWN OF BOYNTON, ACCORDING TO THE MAP OR PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 23, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA. SAID PARCEL LYING IMMEDIATELY ADJACENT TO LOTS 6 THROUGH 11, AND THE WEST OF LOT 12. BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWEST CORNER OF LOT 7, BLOCK 1, SAID PLAT OF ORIGINAL TOWN OF BOYNTON, PROCEED THENCE ALONG THE NORTH LINE OF SAID ALLEYWAY AND ALSO BINT THE SOUTH LINE OF LOTS 6 AND 7 N89048'41"E A DISTANCE OF 100.00 FEET TO A POINT ON THE SOUTHEAST CORNER OF LOT 6, THENCE DEPARTING SAID LINE PROCEED ALONG THE SOUTHERLY EXTENSION OF THE EAST LINE OF SAID LOT 6 SO1°22'23"E A DISTANCE OF 10.00 FEET TO A POINT; THENCE PROCEED ALONG A LINE TEN FEET SOUTH OF AND PARALLEL TO THE NORTH LINE OF SAID {S:\CA\Ordinances\Abandonments\Abandonment of ROW (The Pierce) - Ordinance.docx Page 235 of 971 ALLEYWAY, N89048'41"E A DISTANCE OF 125.00 FEET (SAID LINE BEING THE CENTERLINE OF SAID ALLEYWAY) THENCE PROCEED S01022'36"E TO THE SOUTH LINE OF SAID ALLEYWAY AND INTERSECTION OF THE EAST LINE OF THE WEST 1/2 OF LOT 12, SAID BLOCK 1, THENCE PROCEED ALONG THE SOUTH LINE OF SAID ALLEYWAY S89048'41 "W A DISTANCE OF 125.00 FEET TO A POINT ON THE EAST RIGHT OF WAY LINE OF NE 4TH STREET (PLATTED AS PALMETTO STREET, SAID POINT ALSO BEING THE NORTHWEST CORNER OF LOT 8, BLOCK 1; THENCE PROCEED N01022'36"W A DISTANCE OF 20.00 FEET ALONG SAID EAST RIGHT OF WAY LINE TO A POINT IN THE SOUTHWEST CORNER OF LOT 7, ALSO BEING THE POINT AND PLACE OF BEGINNING. CONTAINING 3251.00 SQUARE FEET. Portion of NE 1st Ave Legal Description A PORTION OF THE RIGHT OF WAY OF NE 1ST AVENUE AS SHOWN ON ORIGINAL TOWN OF BOYNTON, ACCORDING TO THE MAP OR PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 23, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA. SAID PORTION BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWEST CORNER OF LOT 8, BLOCK 1, SAID PLAT OF ORIGINAL TOWN OF BOYNTON, PROCEED ALONG THE NORTH RIGHT OF WAY LINE OF SAID NE 1ST AVENUE N89048'41"E A DISTANCE OF 225 FEET TO A POINT BEING THE SOUTHEAST CORNER OF THE WEST 1/2 OF LOT 12, BLOCK 1: THENCE DEPARTING SAID NORTH RIGHT OF WAY LINE PROCEED S01022'36"E A DISTANCE OF 40 FEET TO A POINT ON THE SOUTH RIGHT OF WAY LINE OF SAID NE 1ST AVENUE (ALSO BEING THE NORTH LINE OF BLOCK 6); THENCE PROEED S89048'41"W A LONG SAID SOUTH RIGHT OF WAY LINE A DISTANCE OF 225.00 FEET TO THE NORTHWEST CORNER OF LOT 7, BLOCK 6, ALSO BEING THE INTERSECTION POINT OF THE EAST RIGHT OF WAY LINE OF NE 4TH STREET (PLATTED AS PALMETTO STREET); THENCE PROCEED N01022'36" ALONG SAID EASTERLY RIGHT OF WAY LINE A DISTANCE OF 40.00 FEET TO THE SOUTHWEST CORNER OF LOT 8, BLOCK 1, ALSO BEING THE POINT AND PLACE OF BEGINNING. CONTAINING 9003.59 SQUARE FEET. IN WITNESS WHEREOF, the duly authorized officers of the City of Boynton Beach, Florida, have hereunto set their hands and affixed the seal of the City this day of March, 2023. CITY OF BOYNTON BEACH, FLORIDA Maylee De Jesus, MMC Daniel Dugger, City Manager City Clerk {S:\CA\Ordinances\Abandonments\Abandonment of ROW (The Pierce) - Ordinance.docx Page 236 of 971 STATE OF FLORIDA ) ) ss: COUNTY OF PALM BEACH ) BEFORE ME, the undersigned authority, personally appeared by means of ❑ physical presence or ❑ online notarization, Daniel Dugger, City Manager of the City of Boynton Beach, Florida, known to me to be the person described in and who executed the foregoing instrument, and acknowledged the execution thereof to be his free hand and deed as such officer, for the uses and purposes mentioned therein; that he affixed thereto the official seal of said corporation; and that said instrument is the act and deed of said corporation. WITNESS my hand and official seal in the said State and County this day of .2023. NOTARY PUBLIC, State of Florida My Commission Expires: {S:\CA\Ordinances\Abandonments\Abandonment of ROW (The Pierce) - Ordinance.docx Page 237 of 971 DEVELOPMENT DEPARTMENT PLANNING AND ZONING DIVISION 19 MEMORANDUM NO. PZ 23-007 STAFF REPORT TO: Chair and Members Planning & Development Board THRU: Amanda B. Radigan, AICP, LEED AP ,A,:�W Planning and Zoning Director FROM: Craig Pinder, Planner II Jae Eun Kim, PLA, Principal Planner DATE: January 24, 2023 PROJECT: The Pierce Right-of-way Abandonment (ABAN 22-002) North & South Alley Abandonments (ABAN 22 — 001 & ABAN 22-003) REQUEST: Approval of three (3) applications for abandonments to vacate a portion of an alleyway located within the northern section of the proposed The Pierce development AKA North Alley (ABAN 22-001), a portion of NE 1 st Avenue (ABAN 22-002), and the full length of an alleyway located within the southern section of the proposed The Pierce development AKA South Alley (ABAN 22-003). BACKGROUND The applicant is requesting three (3) abandonment (ABAN 22 - 001, ABAN 22-002, & ABAN 22-003) in conjunction with the following applications: The Pierce Rezoning (REZN 22-001) to rezone the subject properties from CBD (Central Business District) to Mixed Use -Core (MU -C), and The Pierce Master Plan (MPMD 22-005) and New Major Site Plan (NWSP 22-004) for the development of an 8 - story mixed-use development consisting of approximately 17,089 square feet of ground floor commercial space and a supporting parking garage with a total of 564 parking spaces (see Exhibit C Conditions of Approval) . The three abandonment requests are outlined below (refer to Exhibit A — Proposed Abandonments): North Alley (ABAN 22-001): The applicant is requesting to abandon the west portion of the alleyway located within the northern section of the site between NE 4th Street and Federal Highway. The North Alley has an existing driveway and provides access to the existing parking lots and neighboring properties. The abandoned land will be transferred in equal portions to the abutting property owner(s) per State Statute. In this case the southern portion of the abandon area will be conveyed and developed for further implementation of The Pierce Master Plan and the northern portion will be conveyed to the abutting properties. The portions of the abandonment within the project boundarywill be demolished forthe proposed development. The subject area is approximately 4,500 square feet, 20 feet wide by 225 feet (Exhibit B — Legal Descriptions and Sketches). Page 238 of 971 The Pierce Abandonments (ABAN 22-001, ABAN 22-002 & ABAN 22-003) Memorandum No. PZ 23-007 Page 2 ROW of NE 1St Avenue (ABAN 22-002): The applicant is requesting to vacate the west portion of NE 1St Avenue between NE 4th Street and Federal Highway. The segment of the right-of-way to be vacated has an existing driveway that provides access to the existing parking lots and properties to the north and the south which is proposed to be redeveloped and incorporated into The Pierce development. The remaining portion of the right-of-way will continue to serve as access to the properties to the north. The subject area is approximately 9,004 square feet, 40 feet wide by 225 feet (Exhibit B — Legal Descriptions and Sketches). South Alley (ABAN 22-003): The applicant is requesting to vacate a full length of the alleyway located within the southern section of the site between NE 4th Street and Federal Highway. The South Alley has an existing driveway that provides access to the properties to the south and the existing parking lot to the north. These properties will be demolished for the implementation of The Pierce Master Plan. The subject area is approximately 6,700 square feet, 20 feet wide by 335 feet (Exhibit B — Legal Descriptions and Sketches). The applicant has provided justification statements for the abandonment requests (see Exhibit D — Justification Statements). The following is a description of the zoning districts and land uses of the properties that surround the subject abandonment requests: Adjacent Uses: North: On the northwest, the right-of-way of Boynton Beach Boulevard, then further north, developed commercial properties, classified Mixed Use High (MXH) and zoned Central Business District (CBD); on the northeast, developed commercial properties also under the MXH and CBD designations, and farther north, the right-of-way of Boynton Beach Boulevard; South: On the southwest, public park classified Mixed Use High (MXH) zoned Central Business District (CBD); on the southeast, the right-of-way of Ocean Avenue, then further south, a mixed-use project (500 Ocean), classified MXH and zoned Mixed Use -Core (MU -C); East: On the east northeast, developed commercial properties, classified Mixed Use - High (MXH) and zoned Central Business District (CBD); on the southeast, the right-of-way for Federal Highway, then an undeveloped property classified MXH and zoned Mixed -Use Core (MU -C); West: Right-of-way of NE 4th Street, then an undeveloped parcel, classified Mixed Use -High (MXH) and zoned Central Business District (CBD). ANALYSIS A notice of the requests was mailed to owners of properties within 400 feet of the subject properties. and signs were posted for the Planning & Development Board and City Commission meeting dates. S:\Planning\SHARED\WP\PROJECTS\The Pierce - 101 N Federal (fka 115 N Federal Hwy)WbandonmentsWBAN 22-001, 002, 003_Staff Report v4.doc Page 239 of 971 The Pierce Abandonments (ABAN 22-001, ABAN 22-002 & ABAN 22-003) Memorandum No. PZ 23-007 Page 3 The applicant has certified that they posted signage and mailed notices in accordance with Ordinance No. 04-007 & 05-004. A summary of the responses received from the City Engineering and Utilities, and the utility companies follows: CITY DEPARTMENTS/DIVISIONS Engineering No objection. Public Works/Utilities No objection with the provision of the necessary easements for the existing or future utilities. Planning and Zoning No objection with conditions (see Exhibit "C" - Conditions of Approval) PUBLIC UTILITY COMPANIES Florida Power and Light No response received as of the date of this report. If easements and relocation of utilities are necessary they will be at the developer's cost. AT&T No response received as of the date of this report. If easements and relocation of utilities are necessary they will be at the developer's cost. Florida Public Utilities No response received as of the date of this report. Comcast: No response received as of the date of this report. Crown Castle Fiber: No response received as of the date of this report. Fibernet Direct: No response received as of the date of this report. Level 3: No response received as of the date of this report. Sprint: No response received as of the date of this report. Hotwire: No response received as of the date of this report. Strome Networks: No response received as of the date of this report. Windstream: No response received as of the date of this report. PBC Traffic Engineering: No response received as of the date of this report. RECOMMENDATION Staff has determined that the three (3) requested abandonments (ABAN 22 - 001, ABAN 22 - 002, & ABAN 22 - 003) would not adversely impact traffic or other City functions and would not adversely impact other adjacent property owners. Based on the above -analysis, staff has determined that the subject right-of-way and alley segments no longer serve a public purpose other than retention of necessary utility easements and therefore recommends APPROVAL of the requests, subject to the attached conditions (see Exhibit C - Conditions of Approval). Any conditions requested by the Planning and Development Board or required by the Commission will be placed in Exhibit C. S:\Planning\SHARED\WP\PROJECTS\The Pierce - 101 N Federal (fka 115 N Federal Hwy)WbandonmentsWBAN 22-001, 002, 003_Staff Report v4.doc Page 240 of 971 Page 241 of 971 Page 242 of 971 SHEET 1 OF 2 SKETCH AND DESCRIPTION LEGAL DESCRIPTION: Exhibit "B"- 1 of 6 ABAN 22 - 001 A PARCEL OF LAND BEING A PORTION OF THE 20 FEET WIDE ALLEYWAY IN BLOCK 1, ORIGINAL TOWN OF BOYNTON, ACCORDING TO THE MAP OR PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 23, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWEST CORNER OF LOT 7, BLOCK 1, SAID PLAT OF ORIGINAL TOWN OF BOYNTON, PROCEED N89°4841"E ALONG THE NORTH LINE OF SAID ALLEYWAY A DISTANCE OF 225.00 FEET; THENCE S01 °22'36"E LEAVING SAID NORTH LINE A DISTANCE OF 20.00 FEET TO THE NORTHEAST CORNER OF THE WEST HALF OF LOT 12, SAID BLOCK 1, THENCE PROCEED S89.4841 "W ALONG THE SOUTH LINE OF SAID ALLEYWAYA DISTANCE OF 225.00 FEET TO THE EAST RIGHT OF WAY LINE OF NE 4TH STREET (PLATTED AS PALMETTO STREET), ALSO BEING THE NORTHWEST CORNER OF LOT 8, BLOCK 1; THENCE PROCEED N01 22'36"W ALONG SAID RIGHT OF WAYA DISTANCE OF 20.00 FEET TO THE SOUTHWEST CORNER OF LOT 7, ALSO BEING THE POINT AND PLACE OF BEGINNING. CONTAINING 4,500.00 SQUARE FEET. SURVEYORS' NOTES: 1. 1 HEREBY CERTIFY THIS SKETCH AND DESCRIPTION MEETS STANDARDS OF PRACTICE SET FORTH IN RULE 5J-17.050-.052, FLORIDA ADMINISTRATIVE CODE, PURSUANT TO FLORIDA STATUTES. 2. THE SKETCH AND DESCRIPTION AND THE COPIES THEREOF ARE NOT VALID WITHOUT THE SIGNATURE AND THE ORIGINAL RAISED SEAL OR VERIFIED ELECTRONIC SIGNATURE OF A FLORIDA LICENSED SURVEYOR AND MAPPER.. 3. ADDITIONS OR DELETIONS TO SURVEY MAPS OR REPORTS BY OTHER THAN THE SIGNING PARTY OR PARTIES IS PROHIBITED WITHOUT WRITTEN CONSENT OF THE SIGNING PARTY OR PARTIES. 11-03-22 PR VA I L FL x21 °AND MAPPER No. 7211 PR�NCI SURVEYINGINC. SHEET 2 OF 2 EAST BOYNTON BEACH BOULEVARD I CR I :z ml� r a I 01mz I m In I n LOT 7 i LOT 6 0 1 m� BLOCK 1 I BLOCK 1 plrn oy I G) SW CORNER LOT 7, 1 m BLOCK 1 n -mi POINT OF BEGINNING a1 I I L20.0'— Exhibit "B"- 2 of 6 ABAN 22 - 001 RIGHT OF WAY I I I I I LOT5 1 BLOCK 1 I I I I I I 20' PLATTED ALLEYWAY (P.B. 1, PG. 23) i N 89'4841" E 225.00' I LOT BLOCK 1 I I LOT3 BLOCK 1 I I o 1 N o O N 1 O N O W _0� I m I 1 I S89°48'41"W 225.00' I I I I I LOT 1 BLOCK 1 I I I I I I I I I I WEST 1/21 EAST 1/2 LOT 9 I LOT 10 1 LOT 11 1 LOT 12 I LOT 12 BLOCK 1 I BLOCK 1 I BLOCK 1 1 BLOCK 1 1 BLOCK 1 I I I I I I I I I I GRAPHIC SCALE 40 0 20 40 1 INCH = 40 FT. JOB#22-435 Page 244 of 971 ��P� �IPIC�IPAL IIII�'�III � � VUIII VUIII SURVEYING SNC. 4546 CAMBRIDGE STREET WEST PALM BEACH, FL 33415 PHONE 833.478.7764 / FAX 561.478.1094 VWVW.PMSURVEYING.NET GRAPHIC SCALE 40 0 20 40 1 INCH = 40 FT. JOB#22-435 Page 244 of 971 SHEET 1 OF 2 SKETCH AND DESCRIPTION LEGAL DESCRIPTION: Exhibit "B"- 3 of 6 ABAN 22 - 002 A PORTION OF THE RIGHT OF WAY OF NE IST AVENUE AS SHOWN ON ORIGINAL TOWN OF BOYNTON, ACCORDING TO THE MAP OR PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 23, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA. SAID PORTION BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWEST CORNER OF LOT 8, BLOCK 1, SAID PLAT OF ORIGINAL TOWN OF BOYNTON, PROCEED ALONG THE NORTH RIGHT OF WAY LINE OF SAID NE 1ST AVENUE N89°48'41 "E A DISTANCE OF 225 FEET TO A POINT BEING THE SOUTHEAST CORNER OF THE WEST! OF LOT 12, BLOCK 1: THENCE DEPARTING SAID NORTH RIGHT OF WAY LINE PROCEED S01 22'36"E A DISTANCE OF 40 FEET TO A POINT ON THE SOUTH RIGHT OF WAY LINE OF SAID NE 1ST AVENUE (ALSO BEING THE NORTH LINE OF BLOCK 6); THENCE PROCEED S89°4841" WA LONG SAID SOUTH RIGHT OF WAY LINE A DISTANCE OF 225.00 FEET TO THE NORTHWEST CORNER OF LOT 7 BLOCK 6, ALSO BEING THE INTERSECTION POINT OF THE EAST RIGHT OF WAY LINE OF NE 4TH STREET (PLATTED AS PALMETTO STREET); THENCE PROCEED N01' 2236" ALONG SAID EASTERLY RIGHT OF WAY LINE A DISTANCE OF 40.00 FEET TO THE SOUTHWEST CORNER OF LOT 8, BLOCK 1, ALSO BEING THE POINT AND PLACE OF BEGINNING. CONTAINING 9003.59 SQUARE FEET. SURVEYORS' NOTES: 1. 1 HEREBY CERTIFY THIS 1. THIS SKETCH OF DESCRIPTION MEETS STANDARDS OF PRACTICE SET FORTH IN RULE 5J-17.050-.052, FLORIDA ADMINISTRATIVE CODE, PURSUANT TO FLORIDA STATUTES. 2. THE SKETCH AND DESCRIPTION AND THE COPIES THEREOF ARE NOT VALID WITHOUT THE SIGNATURE AND THE ORIGINAL RAISED SEAL OR VERIFIED ELECTRONIC SIGNATURE OF A FLORIDA LICENSED SURVEYOR AND MAPPER.. 3. ADDITIONS OR DELETIONS TO SURVEY MAPS OR REPORTS BY OTHER THAN THE SIGNING PARTY OR PARTIES IS PROHIBITED WITHOUT WRITTEN CONSENT OF THE SIGNING PARTY OR PARTIES. 08-29-22 PR VA I L FL so NDN a 721 AND MAPPER 7211 PR�NCI SURVEYINGINC. SHEET 2 OF 2 I I I I I LOT 1 BLOCK 1 1 I 1 SW CORNER JOT 8, BLOCK 1 I {-20.0' � rV11V1 VI UL VIIV z 0 I N O N m z Im n Exhibit "B"- 4 of 6 ABAN 22 - 002 I I I I I I I I I I I I I I I I I I I I WEST 1/21 EAST 1/2 LOT9 I LOT 10 1 LOT 11 1 LOT 12 1 LOT 12 1 BLOCK 1 1 BLOCK 1 1 BLOCK 1 1 BLOCK 11 BLOCK 1 1 I I I I I I I I I I I RIGHT OF WAY N 89°48'41" E 225.00' c„ NE 1 st_AVENUE_ CENTERLINE 40' PLATTED RIGHT OF WAY w o O S89'48'41" W 225.00' m _ RIGHT OF WAY m lr I I I I I o,om I I I m ic -'o '=E�r! LOT 1 LOT 1 LOT 1 LOT4 1 LOTS 1 n cBLOCK 6 1 BLOCK 6 1 BLOCK 6 1 BLOCK 6 I BLOCK 6 1 o Imp I I I I I �m I I I I I —{ I m o m I I I I I :7- < I I I I I I I I I 4546 CAMBRIDGE STREET WEST PALM BEACH, FL 33415 PHONE 833.478.7764 / FAX 561.478.1094 VVWW.PMSURVEYING.NET JOB#22-435 Page 246 of 971 SHEET 1 OF 2 SKETCH AND DESCRIPTION LEGAL DESCRIPTION: Exhibit "B"- 5 of 6 ABAN 22 - 003 A PORTION OF THE 20'ALLEYWAYAS SHOWN ON ORIGINAL TOWN OF BOYNTON, ACCORDING TO THE MAP OR PLAT THEREOFAS RECORDED IN PLAT BOOK 1, PAGE 23, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA. SAID PORTION BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST CORNER OF LOT 7, BLOCK 6, SAID PLAT OF ORIGINAL TOWN OF BOYNTON, PROCEED THENCE ALONG THE NORTH LINE OF SAID ALLEYWAY, ALSO BEING THE SOUTH LINE OF SAID BLOCK 6, N89°4659"E A DISTANCE OF 335.02 FEET TO A POINT 10 FEET WEST OF THE PLATTED WEST RIGHT OF WAY OF FEDERAL HIGHWAY (US HIGHWAY NO. 1), SAID POINT BEING THE WEST RIGHT OF WAY LINE OF SAID FEDERAL HIGHWAY PER F.D.O. T. R/W MAP SECTION 93010-2501, SHEET 4 OF 10; THENCE PROCEED ALONG SAID RIGHT OF WAY LINE S01 °22'36"E A DISTANCE OF 20.00 FEET TO A POINT ON THE SOUTH LINE OF SAID ALLEYWAY,- THENCE PROCEED ALONG SAID SOUTH LINE S 89°46'59"WA DISTANCE OF 335.02 FEET TO A POINT 5.00 FEET EAST OF THE WEST LINE OF SAID BLOCK 6; THENCE PROCEED N01 °22'36"WA DISTANCE OF 20.00 FEET TO THE POINT AND PLACE OF BEGINNING. CONTAINING 6700.30 SQUARE FEET. SURVEYORS' NOTES: 1. 1 HEREBY CERTIFY THIS 1. THIS SKETCH OF DESCRIPTION MEETS STANDARDS OF PRACTICE SET FORTH IN RULE 5J-17.050-.052, FLORIDA ADMINISTRATIVE CODE, PURSUANT TO FLORIDA STATUTES. 2. THE SKETCH AND DESCRIPTION AND THE COPIES THEREOF ARE NOT VALID WITHOUT THE SIGNATURE AND THE ORIGINAL RAISED SEAL OR VERIFIED ELECTRONIC SIGNATURE OF A FLORIDA LICENSED SURVEYOR AND MAPPER.. 3. ADDITIONS OR DELETIONS TO SURVEY MAPS OR REPORTS BY OTHER THAN THE SIGNING PARTY OR PARTIES IS PROHIBITED WITHOUT WRITTEN CONSENT OF THE SIGNING PARTY OR PARTIES. 08-29-22 PR VA I L FL so NDN a 721 AND MAPPER 7211 PR�NCI SURVEYINGINC. SHEET 2 OF 2 I I 20.0' I I I I I I I I I I I I I I SW CORNER LOT 7, I c'A BLOCK 6 1 z] POINT OF COMMENCEM P LOT 7 I LOT 6 1 r- a BLOCK 6 1 BLOCK 6 I m P01 IIT OF BEGINNI ( �z �m a a N 89'4659" E 5.00' rM zo I I C/:) a I I � to,^; I I s 5dto w I I m 0� y :� LOT 8 LOT9 BLOCK 6 1 BLOCK 6 1 I I I I I I I I I I I I I I I I I I I I I I I I I I L ------I------- I I Exhibit "B"- 6 of 6 ABAN 22 - 003 LOT5 j LOT4 j LOT3 j LOT2 BLOCK 6 1 BLOCK 6 1 BLOCK 6 1 BLOCK 6 N89 -46'59"E 335.02' 20' PLATTED ALLEYWAY (P.B. 1, PG. 23) S 89'4659" Wl 335.02' LOT 10 BLOCK 6 LOT 11 BLOCK 6 MERIDIAN SURVEYINGINC. LOT 12 BLOCK 6 LOT 13 BLOCK 6 I 50.0 I I O cl I ; � I ; I I � , I I I Irn m 0 LOT 1 BLOCK 6 1 c„ 2 ION E9Z , m m n I C) Z I� I C I co O LOT 14 I y BLOCK 6 I I m = On I �a mID I I c) -i I o n I I cz�o O -i ml �IZZ 0 I N N N O � O GRAPHIC SCALE 1 INCH = 60 FT. JOB#22-435 Page 248 of 971 EXHIBIT "C" Conditions of Approval Project Name: The Pierce File number: ABAN 22-001, ABAN 22-002, & ABAN 22-003 Reference: 41h review of plans identified as a New Maior Site Plan and New Master Plan with a January 10, 2023 Planning and Zoning Department date stamp marking. DEPARTMENTS INCLUDE REJECT ENGINEERING / PUBLIC WORKS / FORESTRY / UTILITIES Comments: No comments of abandonment requests X PLANNING AND ZONING Comments: 1. Final approval and recordation of the abandonments are contingent on the submittal of a building permit for the residential X building associated with the New Major Site Plan application (NWSP 22-004). 2. Clarify discrepancy of five (5) foot wide portion of land along the southern boundary of NE 1St Ave to be abandoned. The legal sketch for the subject area illustrates 40ft wide right-of-way for X abandonment; however, the Palm Beach Property Appraiser GIS map shows a right-of-way width of 45 feet. 3. Provide consent letters from applicable public utility companies including the City's Utility Department of each abandonment X request. If easements and/or relocation of utilities are required it will be at the sole cost of the developer. 4. Provide consents signed by the adjacent property owners of the X abandonment requests. UTILITY PROVIDERS Comments: Pending for determination or approval. X PLANNING & DEVELOPMENT BOARD CONDITIONS Comments: No comments CITY COMMISSION CONDITIONS S:\Planning\SHARED\WP\PROJECTS\The Pierce - 101 N Federal (flea 115 N Federal Hwy)Wbandonments\Exhibit C - COA_ABAN 22-001, 002, 003.doc Page 249 of 971 The Pierce Abandonments (ABAN 22-001, ABAN 22-002, & ABAN 22-003) Conditions of Approval Page 2 of 2 DEPARTMENTS INCLUDE REJECT Comments: To be determined ADDITIONAL REPRESENTATIONS / COMMITMENTS The applicant or applicant's representatives made the following representations and commitments during the quasi-judicial and/or public hearings that now constitute binding obligations of the applicant. The obligations have the same weight as other conditions of approval. S:\Planning\SHARED\WP\PROJECTS\The Pierce - 101 N Federal (flea 115 N Federal Hwy)Wbandonments\Exhibit C - COA_ABAN 22-001, 002, 003.doc Page 250 of 971 Exhibit DA Justification Statement- The Pierce, North Alley Abandonment This application for Abandonment is submitted on behalf of BB QOZ, LLC (the "Applicant") for the project known as The Pierce. Applications for Rezoning, New Master Plan, New Major Site Plan, Community Design Appeal, and two other Abandonments are being submitted concurrently. Applicant requests abandonment of a portion of the North Alley as shown in the enclosed sketch and legal description. This request to abandon a portion of the North Alley meets the review criteria specified in Section 2.G.3 of the Boynton Beach, FL Code of Ordinances, Part III Land Development Regulations (the "Land Development Regulations") Chapter 2, Article II as follows: a. Access The subject land does not contain a legal means of access to a lot of record, subdivision, or development. The abandonment would not cause or result in any permanent stoppage, interruption, or unacceptable level of service for the subject lot or on neighboring lots with respect to police, fire, or other emergency services, or solid waste removal. There is an existing 6 -inch sewer main to remain and a 12 -foot easement will be provided. b. Utilities The subject land does not contain, support, or allow potable water, sanitary sewer, or any other utility (e.g., cable, telephone, electricity, gas, etc.) which would be permanently stopped or interrupted, or which would cause an unacceptable level of service to the subject lot or neighboring lots, subdivisions, or developments. c. Drainage and Wastewater Management The subject land does not contain, support, or allow a legal means of drainage or wastewater management for such lot or on neighboring lots, subdivisions, or developments which would cause or result in a stoppage, interruption, or unacceptable level of service. d. Conservation The subject land does not contain, support, or allow the means of conservation or preservation of flora or fauna. Page 251 of 971 Exhibit D.2 Justification Statement- The Pierce, NE First Avenue Abandonment This application for Abandonment is submitted on behalf of BB QOZ, LLC (the "Applicant") for the project known as The Pierce, Applications for Rezoning, New Master Plan, New Major Site Plan, Community Design Appeal, and two other Abandonments are being submitted concurrently, Applicant requests abandonment of a portion of the Right of Way of NE First Avenue as shown in the enclosed sketch and legal description. This request to abandon a portion of NE First Avenue meets the review criteria specified in Section 2.G.3 of the Boynton Beach, FL Code of Ordinances, Part III Land Development Regulations (the "Land Development Regulations") Chapter 2, Article 11 as follows: III@ III I IIII !III ��I 11111 111 111 The abandonment would not cause or result in any permanent stoppage, interruption, or unacceptable level of service for the subiect lot or on in lots with resXtct1Q-Xoltce- flr�Tmw4wjMaiTq, services, or solid waste removal. The subject land does not contain, support, or allow potable water, sanitary sewer, or any other utility (e.g., cable, telephone, electricity, gas, etc.) which would be permanently stopped or interrupted, or which would cause an unacceptable level of service to the subject lot or neighboring lots, subdivisions, or developments. c. Drainage and Wastewater Management The subject land does not contain, support, or allow a legal means of drainage or wastewater management for such lot or on neighboring lots, subdivisions, or developments which would cause or result in a stoppage, interruption, or unacceptable level of service. 1JOBBIRAN-W, The subject land does not contain, support, or allow the means of conservation or preservation of flora or fauna. Page 252 of 971 Exhibit D.3 Justification Statement- The Pierce, South Alley Abandonment This application for Abandonment is submitted on behalf of BB QOZ, LLC (the "Applicant") for the project known as The Pierce. Applications for Rezoning, New Master Plan, New Major Site Plan, Community Design Appeal, and two other Abandonments are being submitted concurrently. Applicant requests abandonment of a portion of the South Alley as shown in the enclosed sketch and legal description. This request to abandon a portion of the South Alley meets the review criteria specified in Section 2.G.3 of the Boynton Beach, FL Code of Ordinances, Part III Land Development Regulations (the "Land Development Regulations") Chapter 2, Article II as follows: a. Access The subject land does not contain a legal means of access to a lot of record, subdivision, or development. The abandonment would not cause or result in any permanent stoppage, interruption, or unacceptable level of service for the subject lot or on neighboring lots with respect to police, fire, or other emergency services, or solid waste removal. b. Utilities The subject land does not contain, support, or allow potable water, sanitary sewer, or any other utility (e.g., cable, telephone, electricity, gas, etc.) which would be permanently stopped or interrupted, or which would cause an unacceptable level of service to the subject lot or neighboring lots, subdivisions, or developments. c. Drainage and Wastewater Management The subject land does not contain, support, or allow a legal means of drainage or wastewater management for such lot or on neighboring lots, subdivisions, or developments which would cause or result in a stoppage, interruption, or unacceptable level of service. d. Conservation The subject land does not contain, support, or allow the means of conservation or preservation of flora or fauna. Page 253 of 971 Justification Statement- The Pierce, NE First Avenue Abandonment This application for Abandonment is submitted on behalf of BB QOZ, LLC (the "Applicant") for the project known as The Pierce, Applications for Rezoning, New Master Plan, New Major Site Plan, Community Design Appeal, and two other Abandonments are being submitted concurrently, Applicant requests abandonment of a portion of the Right of Way of NE First Avenue as shown in the enclosed sketch and legal description. This request to abandon a portion of NE First Avenue meets the review criteria specified in Section 2.G.3 of the Boynton Beach, FL Code of Ordinances, Part III Land Development Regulations (the "Land Development Regulations") Chapter 2, Article 11 as follows: III@ III I IIII !III ��I 11111 111 111 The abandonment would not cause or result in any permanent stoppage, interruption, or unacceptable level of service for the subiect lot or on in lots with resXtct1Q-Xoltce- flr�Tmw4wjMaiTq, services, or solid waste removal. The subject land does not contain, support, or allow potable water, sanitary sewer, or any other utility (e.g., cable, telephone, electricity, gas, etc.) which would be permanently stopped or interrupted, or which would cause an unacceptable level of service to the subject lot or neighboring lots, subdivisions, or developments. c. Drainage and Wastewater Management The subject land does not contain, support, or allow a legal means of drainage or wastewater management for such lot or on neighboring lots, subdivisions, or developments which would cause or result in a stoppage, interruption, or unacceptable level of service. 1JEUBIRAN-W, The subject land does not contain, support, or allow the means of conservation or preservation of flora or fauna. Page 254 of 971 8.E. Public Hearing 2/21/2023 Requested Action by Commission: Approval of Variance (ZNCV 23-002) of Part 111, Chapter 4, Article 11, Section 4.B.3.c — Urban Landscape Buffer (Type 2), to grant a variance of seven (7) feet from the required twelve (12) foot buffer, to allow for a five (5) foot wide landscape buffer, and the elimination of the requirement to provide a six (6) foot tall masonry wall. Explanation of Request: The applicant is requesting approval to provide a landscape buffer that varies from a minimum width of five (5) feet to a maximum width of eight (8) feet along the east property line in lieu of the required twelve (12) foot landscape buffer required by code, and the elimination of the requirement to provide a six (6) foot tall masonry wall. Within this reduced buffer, the applicant proposes a number of silver buttonwood canopy trees and sabal palm trees in excess of the code requirement with frog fruit groundcover. The first floor of the parking garage's east facade is pulled back approximately 6' 6" to provide landscaping consisting of a continuous red tip cocoplum shrub with frog fruit groundcover underneath the 2nd floor building overhang. The upper floors of the parking garage are proposed to extend over this landscaped area and will be supported by columns placed within the required twelve (12) foot wide landscape buffer. Staff has determined that there are possible design solutions that would eliminate the need for the requested relief and recommends DENIAL of the request. The Planning & Development Board recommended APPROVAL of this request during the November 29th, 2022 meeting. How will this affect city programs or services? This will not affect City programs or services. Fiscal Impact: There is no fiscal impact to the budget for this item. Alternatives: Staff recommends DENIAL of this variance request, based on the following justification: 1. The parking garage and development will be newly constructed, which provides the applicant the ability to reduce the overall size and intensity of the development where necessary which in turn reduces the number of required parking spaces and overall size of the parking garage, which would allow the provision for an adequate landscape buffer. Staff notes that there are possible design solutions that would eliminate the need for the requested relief. 2. That the special conditions and circumstances as described in this report are not peculiar to the land, structure, or building involved, and are applicable to other lands, structures or buildings in the same zoning district. 3. That granting the variance can confer a special privilege that would be denied to other lands, buildings, or structures located within the same zoning district. Should the City Commission choose to approve the project, staff recommends the following condition(s) of approval: Page 255 of 971 1. The east facade of the parking garage should incorporate a green wall treatment to further reduce the visual impact of the proposed building. 2. Provide enhanced pedestrian connectivity through the garage to ensure the safe flow of pedestrians throughout the site. Strategic Plan: Strategic Plan Application: N/A Climate Action Application: N/A Is this a grant? Grant Amount: Attachments: Type D Staff IIRE)p.:irt D 1:::::.xhilbit D 1:::::.xhilbit D 1:::::.xhilbit D Coindliflioir s of Ippirovaill D ffaclhtirTIENI'lt D ffaclNrTIENI'lt Description Staff IIRE)p .:ir t Exhibit A 1.....oca bola li Map Exhibit IB JLAa tiflicaflioin Sfa tE)irTIENI':f Exhibit C PirOOICt IRains Exhibit ID Coindliflioirs of IppirovaIll Appicair:f IFlirasa .Nauta bola Staff IFlirE)SE)irnta bola Page 256 of 971 DEVELOPMENT DEPARTMENT PLANNING AND ZONING DIVISION MEMORANDUM NO. PZ 23-002 STAFF REPORT To: Chair and Members, Planning and Development Board Thru: Amanda B. Radigan, AICP Planning and Zoning Director From: Craig Pinder, Planner II Date: November 29, 2022 Project: The Pierce — 101 N Federal Highway Variance (ZNCV 23-002) Requests: Relief from Part III, Chapter 4, Article II, Section 4.B.3.c— Urban Landscape Buffer (Type 2), to grant a variance of seven (7) feet from the required twelve (12) foot buffer, to allow for a five (5) foot wide landscape buffer, and the elimination of the requirement to provide a six (6) foot tall masonry wall. BACKGROUND The subject property is an assemblage of parcels totaling approximately 3.01 acres generally located south of E Boynton Beach Boulevard, north of E Ocean Avenue, west of N Federal Highway, and east of NE 4th Street within the Downtown Transit Oriented Development District and Urban Commercial District Overlay. Proposed on this assemblage of parcels is "The Pierce", a planned mixed-use development currently under review for several concurrent applications, including a New Master Plan, New Site Plan, Rezoning, and three (3) Abandonments. The development proposal includes 301 dwelling units, approximately 17,556 square feet of commercial space (restaurants, retail, and offices), private and public open spaces including public plazas, and an eight (8) floor freestanding parking garage approximately 74' 6" in height (Exhibit C — Project Plans — Elevations — Parking Garage). Pursuant to Part III, Chapter 4, Article II, Section 4.3.c, the project is required to provide an Urban Landscape Buffer (Type 2) along the east side of the freestanding parking garage, which includes a minimum twelve (12) foot wide landscape buffer, comprised of trees, hedges, shrubs, and a six (6) foot tall masonry wall. The landscape buffer is intended to provide adequate buffering between the proposed freestanding parking garage and 209 N Federal Highway, known as The Boardwalk Italian Ice & Creamery, a one-story building approximately 8'-6" in height. PROPOSAL The applicant proposes to provide a landscape buffer that varies from a minimum width of five (5) feet to a maximum width of eight (8) feet along the east property line in lieu of the required twelve Page 257 of 971 (12) foot landscape buffer required by code. Within this reduced buffer, the applicant proposes a number of silver buttonwood canopy trees and sabal palm trees in excess of the code requirement with frog fruit groundcover. The first floor of the parking garage's east fagade is pulled back approximately 6' 6" to provide landscaping consisting of a continuous red tip cocoplum shrub with frog fruit groundcover underneath the 2nd floor building overhang. The upper floors of the parking garage are proposed to extend over this landscaped area and will be supported by columns placed within the required twelve (12) foot wide landscape buffer. ANALYSIS The City Commission has the authority and duty to authorize upon appeal such variance from the terms of a city ordinance as will not be contrary to the public interest when, owing to special conditions, a literal enforcement of the provisions of the city ordinance would result in unnecessary and undue hardship. In order to authorize any variance from the terms of an ordinance, the applicant must demonstrate that the request meets the following criteria (a -g). The applicant's justification and response to these criteria is attached (see Exhibit B - Justification Statement). a. That special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures or buildings in the same zoning district. There are no existing special conditions or circumstances which are peculiar to the land or structure, as the proposed development will be newly -constructed upon an assemblage of parcels that share similar characteristics and challenges of comparable parcels located elsewhere within the downtown. The proposed parking garage has been designed to meet the minimum dimensional standards for parking structures, however, the garage is proposed to encroach up to seven (7) feet into the required twelve (12) foot wide landscape buffer. The applicant states that locating the parking garage on the assemblage of parcels between E Ocean Avenue and NE 1St Avenue with the mixed-use building would eliminate and/or negatively impact the commercial uses and outdoor public spaces proposed along the Ocean Avenue and NE 4th Street corridors. Additionally, pedestrian circulation, courtyards, and private outdoor amenities for the future residents would also be impacted. The proposed central location assists in maintaining pedestrian connectivity between the proposed restaurant to the north end of the site and the proposed commercial uses to the south end of the site, promotes activation of E Ocean Avenue and NE 4th Street, and assists with effectively concealing the loading dock and back of house functions for the mixed-use building. b. That the special conditions and circumstances do not result from the actions of the applicant. The request for a reduction in the width of the required landscape buffer from twelve (12) feet to seven (7) feet and the elimination of the requirement to provide a six (6) foot masonry wall is the direct result of the proposed footprint of the parking garage. Staff notes that there are possible design solutions that would eliminate the need for the requested relief. However, as noted in the response to criteria `a' above, the applicant reduced the footprint of the parking garage to be designed as small as possible while maintaining the necessary Page 258 of 971 dimensional standards required for parking structures, including minimum drive aisle widths and parking stall dimensions, and provides the minimum number of parking spaces required for the proposed site plan. In addition, the applicant proposes to pull back the exterior wall approximately six and one-half feet (65) on the ground floor to provide landscaping underneath the building overhang. The applicant also states that additional trees would be provided above the code requirement in an effort to minimize the impact of the reduced landscape buffer. c. That granting the variance requested will not confer on the applicant any special privilege that is denied by this ordinance to other lands, buildings, or structures in the same zoning district. As described in response to criteria "a", the parking garage is proposed on an assemblage of parcels that share similar challenges and characteristics of comparable parcels located elsewhere within the downtown. Granting the variance requested can be interpreted as granting a special privilege. The applicant states that the proposed location of the parking garage will allow for a mix of commercial and residential uses to front the main thoroughfares (N Federal Highway, E Ocean Avenue, and NE 4th Street), maximize pedestrian connectivity, optimize open space amenities (including public plazas and private residential amenities), and create an interconnected development that ties the residential building, parking garage, and the commercial spaces together. In addition, as mentioned above, the parking garage is designed to be as small as possible while meeting all dimensional standards and minimum parking requirements. d. That literal interpretation of the provisions of this ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of the ordinance and would work unnecessary and undue hardship on the applicant. Literal interpretation of the provisions of the ordinance would not deprive the applicant of rights or cause undue hardship. However, the applicant states that the proposed size and location of the parking garage was determined to be the most suitable area for the development to activate the main thoroughfares with commercial spaces of sufficient size to attract desirable tenants and to provide dwelling units to support the commercial uses. Per the applicant's justification, the proposed project would not be developable without the approval of this variance as it would not be possible to fit the proposed garage on the site. e. That the variance granted is the minimum variance that will make possible the reasonable use of the land, building, or structure. As previously mentioned, the applicant has requested a variance of seven (7) feet from the required twelve (12) foot landscape buffer and elimination of the required six (6) foot tall masonry wall, which is the minimum required to construct the parking garage. Per the applicant's proposal, the provided landscape buffer will be fully landscaped with a combination of trees, shrubs, and groundcover identified earlier in this report. As noted in the applicant's justification, the inclusion of the six (6) foot tall masonry wall would result in concealed areas that can create public safety concerns on the east side of the parking garage. As such, providing relief for the wall is necessary to maintain a safe environment. Page 259 of 971 f. That the granting of the variance will be in harmony with the general intent and purpose of this chapter [ordinance] and that such variance will not be injurious to the area involved or otherwise detrimental to the public welfare. Granting the variance would still allow the intent of the ordinance to be maintained. Landscape buffers are generally intended to reduce the visual impact of the difference in development intensity and building height, provide distance between neighboring properties to mitigate noise and odors, increase the durability of landscape material in order to withstand environmental hazards, and improve the aesthetic appearance of developments through landscaping that helps to enhance the natural and built environment. As noted above, the applicant proposes to provide additional trees to exceed the minimum code requirement, and will provide groundcover in addition to the row of continuous shrubs required by code. CONCLUSIONS / RECOMMENDATION Staff recommends DENIAL of this variance request, based on the following justification: 1. The parking garage and development will be newly constructed, which provides the applicant the ability to reduce the overall size and intensity of the development where necessary which in turn reduces the number of required parking spaces and overall size of the parking garage, which would allow the provision for an adequate landscape buffer. Staff notes that there are possible design solutions that would eliminate the need for the requested relief. 2. That the special conditions and circumstances as described in this report are not peculiar to the land, structure, or building involved, and are applicable to other lands, structures or buildings in the same zoning district. 3. That granting the variance can confer a special privilege that would be denied to other lands, buildings, or structures located within the same zoning district. Should the Planning & Development Board or City Commission choose to approve the project, staff recommends the following condition(s) of approval: 1. The east fagade of the parking garage should incorporate a green wall treatment to further reduce the visual impact of the proposed building. 2. Provide enhanced pedestrian connectivity through the garage to ensure the safe flow of pedestrians throughout the site. Any additional conditions of approval added by the Planning & Development Board or the City Commission will be placed in Exhibit "D" — Conditions of Approval. Page 260 of 971 S:\Planning\SHARED\WP\PROJECTS\The Pierce - 101 N Federal (fka 115 N Federal Hwy)\Staff Reports\ZNCV 23-002\Staff Report.docx Page 261 of 971 EXHIBIT "A" - LOCATION MAP Page 262 of 971 C° X Ih...0 � [ 3� �. J U S U � II: � CA U � 0 [ S U EE M EE [ ..0 Project Narrative- The Pierce, Variance This application for Variance is submitted on behalf of BB QOZ, LLC (the "Applicant") for the project known as The Pierce. The Pierce is a planned 301 -unit apartment building in East Boynton Beach with state-of-the-art amenities, secure parking, interactive public spaces, restaurant, retail and office use, and public parking. Pursuant to Section 2.1) of the Boynton Beach, FL Code of Ordinances, Part III Land Development Regulations (the "Land Development Regulations") Chapter 2, Article 11, this application would seek approval to allow for a reduction in the landscape buffer on the east side of the parking garage that would otherwise be required by Section 4 of Part II, Chapter 4, Article II of the Land Development Regulations. This location requires an Urban Landscape Buffer (Type 2), which would require a minimum buffer width of twelve (12) feet. In addition, it would require a six (6) foot masonry buffer wall. The variance request is for a reduction in buffer and elimination of the masonry wall. The proposed site plan, enclosed with this submittal, would provide a minimum of five (5) feet of landscape buffer, with some areas providing up to eight (8) feet. Additional landscaping will be provided adjacent to the landscape buffer under the building overhang. When added together, the landscape buffer and adjacent additional landscaping under the overhang will add up to a minimum of twelve (12) feet with some areas adding up to almost fifteen (15) feet. The five (5) to eight (8) feet of buffer, in conjunction with the additional landscaping under the building overhang, will sufficiently buffer the east facade of the garage to meet the intent of the code. The additional landscaping utilizes the same requirements of the Urban Landscape Buffer (Type 2). The overhang is at thirteen (13) feet above grade, which will provide for sufficient sunlight for the landscaping. Although not counted towards the buffer calculation, this additional landscaping will contribute to the buffering as intended by the code. The proposed landscape buffer composition reflects an increase above the landscape zoning requirements with four (4) foot red tip cocoplum hedges, silver buttonwood trees and sabal palm trees alternating that are spaced at smaller intervals than code (7'-6" as compared to 20' per code), and approximately eight (8) feet of frogfruit groundcover. With a site of this configuration, the design team was challenged to find a suitable location for the garage that would reduce to the maximum extent possible the impact on pedestrian activity and access to the project site. With a "four-sided" site of pedestrian activation, the design team reviewed many configuration options, but the proposed location was found to be the only suitable location. This is the only location where the garage will not negatively impact pedestrian connectivity and where loading and back of house activities are best removed from the pedestrian realm. It is the only location that will allow for garage entry and exit outside of the active areas that pedestrians will frequent, namely the Ocean Avenue and 4' Street retail areas. Centering the garage in the middle of the site would all but eliminate the public plaza spaces and public seating areas for restaurants. In addition to maximizing these areas, the proposed location also avoids the appearance of a "superblock" monolithic structure which would feel out of scale with the context. With its proposed placement and configuration, the multifamily building is allowed to have courtyard areas for public and private enjoyment as well as active retail spaces at the most desirable locations on the site (which are likely to succeed and not become vacant unrentable space). The garage also has a proposed Page 263 of 971 The Pierce- Variance P i & c 12 connection bridge on every floor to the multi -family building. This creates an inviting drop off entry experience for residents and the public and allows for almost complete concealment of the necessary refuse areas and loading docks. Additionally, the garage location and the placement of elevators allows for easy public access to the proposed Hurricane Alley restaurant along Boynton Beach Boulevard. The garage size is the smallest it can be to serve the development in terms of size, parking space count, and height. When the design team explored other options, they would have not only created very tall monolithic streetwalls along 4th Street and Ocean Avenue, but also would have eliminated the inviting drop off area as currently shown on the plans. Under the Land Development Regulations, a Variance is intended to provide an efficient relief process to allow for deviations from certain requirements and standards of Chapter 3 and Chapter 4 of the Land Development Regulations. The intent is to allow for a departure from the Code upon demonstrations that the subject request satisfactorily addresses the review criteria contained herein, and without the necessity of amending the regulation or rezoning the property to accommodate the requested relief. The City Commission has the authority and duty to authorize, upon appeal, such a variance from the terms of a city ordinance as will not be contrary to the public interest when, owing to special conditions, a literal enforcement of the provisions of the ordinance would result in unnecessary and undue hardship. Applicability Applicant requests a deviation from a quantifiable standard, measure or regulation. In addition, there is no other relief process available and no nonconforming use of neighboring lands, structures, or buildings in other zoning districts is offered as consideration for grounds for the authorization of the variance. Accordingly, the variance process shall be available to Applicant. Review Criteria The application meets the review criteria specified in Section 4 of Chapter 2, Article II as follows: a. Special conditions and circumstances exist which are peculiar to the land, structure or building involved, and which are not applicable to other lands, structures or buildings in the same zoning district. Given the configuration of the site as well as the "four-sided" pedestrian activation, the proposed location for the garage is the only suitable location that would avoid negative impacts on pedestrian activity and access. The central location of the garage within the project helps evenly disburse people to the various uses within the project. Without the parking garage in this location, the site would have pedestrian connectivity issues and the development would struggle to activate Ocean Avenue, Federal Highway, and Boynton Beach Boulevard. In addition, the specifics of the land are such that the proposed location is necessary to provide for the proposed public and private courtyard areas as well as to maximize retail uses in the most desirable locations. It is also necessary to allow for the proposed connection bridge on every floor of the garage to the multi -family building, which both contributes to an inviting drop off entry experience and allows for maximum concealment of the refuse and loading dock areas. The garage was designed to be as small as possible, but the conditions and circumstances are such that the variance is required. It is the only option available for the site that promotes pedestrian activation, retail Page 264 of 971 The Pierce- Variance P �i g c 13 activity, courtyard areas, an inviting drop off area, and easy public access to the proposed Hurricane Alley restaurant along Boynton Beach Boulevard. b. Special conditions and circumstances do not result from the actions of Applicant. As described above, the conditions and circumstances of the site are such that the variance is necessary to locate the garage in the proposed location, which is the only possible location to provide the desired pedestrian circulation, courtyard areas, retail uses, and connectivity. The feasibility of the project depends upon incorporating the multi -family building, commercial space, and a garage with sufficient parking capacity into the site. Attracting the best possible tenants and generating the revenue needed to support the project require locating the commercial uses on the main thoroughfares, which then requires the parking garage to be in this location. The variance is necessary to avoid hardship to the Applicant due to conditions of the site beyond Applicant's control. In addition to the required location of the garage as described above, providing the masonry wall as specified in the code would have the effect at this location of creating concealed areas that would create public safety concerns. With the landscaping, although the buffer itself would be under the code minimum through the grant of a variance, additional landscaping will be provided under the building overhang and additional trees will be provided as well. Although the variance is necessary, Applicant has made every effort to minimize the impact. c. Granting the variance will not confer on Applicant any special privilege that is denied by this section to other lands, structures or buildings in the same zoning district. As described above, this is the only location possible for the garage given the site considerations. The project meets code as to other requirements and provides sufficient open space as an overall development. The location of the garage is necessary to promote commercial uses and maximize pedestrian connectivity. There will be a striped walkway within the garage to the main entrance of the multi -family development connecting sidewalks to Federal Highway. Additionally, a public elevator will be located in the northwest corner closest to Hurricane Alley and the 4' Street retail uses. The overall impact of the variance will be to promote the type of development that is contemplated for the zoning district. The garage location, which requires this variance, will allow for a mix of commercial and residential uses, an optimal pedestrian environment, and well -located courtyard spaces, in tune with the intent of the zoning district. It will create an interconnected development that ties the residential building, the parking garage, and the commercial spaces together. d. Literal interpretations of the provisions of the ordinance would deprive Applicant of rights commonly enjoyed by other properties in the zoning district under the terms of the ordinance and would work unnecessary and undue hardship on Applicant. Applicant could not develop the proposed project without this variance as it would not be possible to fit the proposed garage on the site without this variance. e. The variance granted is the minimum variance that will make possible reasonable use of the land, structure or building. The variance is required for the placement of the garage in the only location that will allow for the residential and commercial uses to be located on the main thoroughfares. The drive lanes and parking space widths are the smallest allowed by code; accordingly, the garage cannot be reduced in size while still providing the minimum parking necessary to support the development. In some areas, the reduction in buffer is only four (4) feet, and this is not including the additional landscaping to be provided adjacent to the landscape buffer. The reduction from the code minimum of twelve (12) feet is minimized as much as possible. Wherever possible, up to eight (8) feet of landscaping is provided, plus the non -buffer landscaping under the overhang. At this location, a masonry wall would result in Page 265 of 971 The Pierce- Variance P i & c 14 concealed areas that create public safety concerns, so that aspect of the variance related to the wall requirement is the minimum required as well. No other location for the garage is possible if the pedestrian connectivity and promotion of optimum retail locations are to be maintained. Given the specifics of the site, this is the only suitable location for the garage, and the variance is the minimum that would make the development possible. f. Granting of the variance will be in harmony with the general intent and purpose of this chapter and such variance will not be injurious to the area involved or be otherwise detrimental to the public welfare. The location of the garage will allow for better pedestrian connectivity and a greater activation of the thoroughfares. The building is pulled back at the ground floor on the east facade. This area underneath the second floor of the building will have in -ground landscaping in addition to the landscaping that is part of the measured landscape buffer. The project team feels that this solution endeavors to meet the design intent of the Urban Landscape Buffer (Type 2) code requirement. The project will meet the intent of the code and contribute to the neighborhood and the City of Boynton Beach. Page 266 of 971 Xll flll:rll 11 C :lR0JlI::C 11 11:111 A114S I 4 PARKING GARAGE - NORTH ills -1I BU I DING ELEVATION -PARKING GARAGE -EAST -PRESENTATION GARAGE -EAST 3 PARKING GARAGE All", 14,11 —44 i—kk -E-t ... . . ... .. ........... ........... k, oti AAFFILIATED ,@,"RINKA+ 0 Revisions PRE -APPLICATION C ITY COORDINATION MEETING THE PIERCE 0 H 1-1 0 �02 ELEVATIONS- LEVATIONS- ....., 0 —PARKINGGARAGE — Jite Plan / Location Map /Northwest Gorvler - Landscape Plan 7—".77 scan IN FEET O' 16' 32' 48' :4 AFFILIATED ©RINKA+ 0 Revisions PRE -APPLICATION C ITY COORDINATION MEETING THE PIERCE ARCHITECTURAL SITE PLAN & SITE DATA 3 SPA HURRICANE ALLEY MEZZANINE I'll -, 2 SPA OCEAN EATERY ROOFTOP PLAN 2 I'll -, .� SPA LEVEL 02-07 1116-11 AFFILIATED ©RINKA+ 0 Revisions PRE -APPLICATION C ITY COORDINATION MEETING THE PIERCE ,o, �,EOEAA��wr eovxrox er�cx,4�ms 2ND -7TH FLOOR PLAN EXHIBIT "D" Conditions of Approval Project Name: The Pierce — 101 N Federal Hwy File number: ZNCV 23-002 Reference: DEPARTMENTS INCLUDE REJECT PLANNING AND ZONING Comments: 1. The east fagade of the parking garage should incorporate a green X wall treatment to further reduce the visual impact of the proposed building. 2. Provide enhanced pedestrian connectivity to ensure the safe flow X of pedestrians throughout the site. PLANNING & DEVELOPMENT BOARD CONDITIONS 1. Replace the proposed Sabal Palmetto palm trees with tree species X of an appropriate size. 2. Provide a green wall treatment on the east fagade of the parking garage. CITY COMMISSION CONDITIONS Comments: None ADDITIONAL REPRESENTATION / COMMITMENTS 3. The applicant or applicant's representatives made the following representations and commitments during the quasi-judicial and/or public hearings that now constitute binding obligations of the applicant. The obligations have the same weight as other conditions of approval. S:\Planning\SHARED\WP\PROJECTS\The Pierce - 101 N Federal (fka 115 N Federal Hwy)\Staff Reports\ZNCV 23-002\Exhibit D - Conditions of Approval.doc Page 271 of 971 LLJERCE P � Page 272 of 971 Page 273 of 971 Page 274 of 971 Development Details The Pierce will be a mixed-use development featuring an eight -story multifamily building containing approximately 301 residential units, with a public/private parking structure giving residents access to each floor through a common corridor. The total development project will consist of over 16,800 SF of multi- faceted commercial, retail, office, and restaurant space. The Pierce is a transit -oriented development with mixed -income workforce housing apartments. The mixed -income approach fosters a healthy, diverse urban environment, providing a luxury living experience at an attainable rate. The Pierce will offer a distinctive and preeminent living option to the East Boynton Beach neighborhood, one that embraces the unique personality of the area. AF.EFI�IAT_ED 100-� D E V E L O P M N T ■ -301 residential units ■ Approximately 17,000 SF of Multi -faceted Commercial Space ■ 3 on-site Restaurants with frontage on main thoroughfares ■ NEWLY located Hurricane Alley Restaurant ■ 5,100 SF of Office/Retail Space ■ Seamless connection with Dewey Park ■ Enhanced Pedestrian Experience ■ City Bike Share Area ■ Secure Public/Private Garage ■ Gated access to resident parking area ■ EV Charging Stations ■ NGBS Certified Buildings ■ Co -"Werk" Lounge ■ State of the art Fitness Facility ■ Parcel Delivery Room ■ Resident Bike Storage ■ Gated Off -Leash Dog Park ■ Rooftop Clubroom ■ Resort Style Pool ■ Private Cabanas ■ BBQ Area ■ Private Pickleball Court & Outdoor Fitness Area ■ -579 spaces ■ 72' to top deck in height ■ 8 levels of public/private parking ■ Metal mesh material on portion of garage to feature art piece ■ Concealed ramp ■ Motorcycle parking Page 276 of 971 Page 277 of 971 Page 278 of 971 Page 279 of 971 Page 280 of 971 Criteria a) That special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures or buildings in the same zoning district. b) That the special conditions and circumstances do not result from the actions of the applicant. c) That granting the variance requested will not confer on the applicant any special privilege that is denied by this ordinance to other lands, buildings, or structures in the same zoning district. d) That literal interpretation of the provisions of this ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of the ordinance and would work unnecessary and undue hardship on the applicant. e) That the variance granted is the minimum variance that will make possible the reasonable use of the land, building, or structure. f) That the granting of the variance will be in harmony with the general intent and purpose of this chapter [ordinance] and that such variance will not be injurious to the area involved or otherwise detrimental to the public welfare. 100D EVE L AFF_I_PL.IAT_E_D NT 'PIERCE -1%.OME Page 282 of 971 Page 283 of 971 1. Zoning Code Variance (ZNCV 23-002) Relief from Part III, Chapter 4, Article 11, Section 4.B.3.c — Urban Landscape Buffer (Type 2), to grant a variance of seven (7) feet from the required twelve (12) foot buffer, to allow for a five (5) foot wide landscape buffer, and the elimination of the requirement to provide a six (6) foot tall masonry wall. Page 284 of 971 The Pierce is under review for several concurrent application requests including: ❑ Major Master Plan ❑ Major Site Plan ❑ Rezoning ❑ Three (3) Abandonments ❑ Relief Applications: ■ Community Design Appeal Application for the North Elevation of the Parking Garage; ■ Community Design Appeal Application for the West Elevation of the Parking Garage; ■ Community Design Appeal Application for the South Elevation of the Parking Garage; ■ Community Design Appeal Application for the East Elevation of the Parking Garage; ■ Variance Application for relief from the Urban Landscape Buffer Type 2 requirements. Page 285 of 971 Proposal includes: ❑ An eight (8) floor mixed-use building with: ■ Approximately 17,500 SF of commercial space (restaurants, office, and retail) ■ 301 dwelling units including workforce housing ■ A freestanding parking garage ■ Private and public open spaces Freestanding Parking Garage Details: A total of eight (8) floors of parking Approximately 74'6" in height 567 parking spaces provided within the garage, 585 total on-site As proposed, project requires a total of 569 parking spaces Page 286 of 971 Page 287 of 971 Page 288 of 971 ❑ Part III, Chapter 4, Article II, Section 4.3.c requires an Urban Landscape Buffer (Type 2) along the east side of the parking garage. 12'— 15' in width ■ Include a 6' tall masonry wall Page 289 of 971 Page 290 of 971 Landscape buffer required I I Reduced landscape buffer proposed within this approximate area I within this approximate area Page 291 of 971 .... . . . . . . ...... . -77 77-7 . ..... .. 11 7 To u n 9 t IA L ly . . ..... .. . .... Page 292 of 971 Page 293 of 971 a uLo wavAuaw - PARKING GARaA5r - Pwsr rariaN _ _aIWkF _k ......... p Page 294 of 971 ❑ That special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures or buildings in the same zoning district. ❑ That the special conditions and circumstances do not result from the actions of the applicant. ❑ That granting the variance requested will not confer on the applicant any special privilege that is denied by this ordinance to other lands, buildings, or structures in the same zoning district. ❑ That literal interpretation of the provisions of this ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of the ordinance and would work unnecessary and undue hardship on the applicant. ❑ That the variance granted is the minimum variance that will make possible the reasonable use of the land, building, or structure. ❑ That the granting of the variance will be in harmony with the general intent and purpose of this chapter [ordinance] and that such variance will not be injurious to the area involved or otherwise detrimental to the public welfare. Page 295 of 971 Staff has reviewed this request for a Variance and recommends DENIAL based on the following justification: The parking garage and development will be newly constructed, which provides the applicant the ability to reduce the overall size and intensity of the development where necessary which in turn reduces the number of required parking spaces and overall size of the parking garage, which would allow the provision for an adequate landscape buffer. 2. That the special conditions and circumstances as described in this report are not peculiar to the land, structure, or building involved, and are applicable to other lands, structures or buildings in the same zoning district. 3. That granting the variance can confer a special privilege that would be denied to other lands, buildings, or structures located within the same zoning district. Page 296 of 971 Should the City Commission choose to approve the project, staff recommends the following condition(s) of approval: ■ The east fagade of the parking garage should incorporate a green wall treatment to further reduce the visual impact of the proposed building. Provide enhanced pedestrian connectivity to ensure the safe flow of pedestrians throughout the site. Page 297 of 971 The project was APPROVED by the Planning & Development Board with the following conditions: ■ Provide a green wall treatment on the east fagade of the parking garage. Replace the proposed Sabal Palmetto palm trees with tree species of an appropriate size. Page 298 of 971 8. F. Public Hearing 2/21/2023 Requested Action by Commission: Approve request for a New Master Plan (MPMD 22-005) and New Major Site Plan (NW SP 22-004) for The Pierce mixed-use development to allow the construction of an eight (8) -story building with 300 dwelling units, 17,089 square feet of commercial space, associated recreational amenities, and parking on a 3.04 acre site, located generally at the intersection of East Ocean Avenue and North Federal Highway. Applicant: Jeffery Burns, Affiliated Development. Explanation of Request: The Pierce is a proposed mixed-use development that will be situated on 3.04 acres located within the Downtown District as defined by the CRA Community Redevelopment Plan. The project site is an assemblage of properties consisting of eight (8) developed and undeveloped parcels, including one and two-story commercial buildings (retail, restaurant, and offices) and surface parking lots. The applicant is requesting approval of several concurrent applications for the development of The Pierce (see the respective staff reports). The first application, REZN 22-001, is to rezone the property from CBD (Central Business District) to Mixed Use -Core (MU -C). The next two applications, NW SP 22-004 and MPMD 22-005, are for New Major Site Plan and New Master Plan approval, which proposes an 8 -story mixed-use development consisting of approximately 17,089 square feet of ground floor commercial space adjacent to Federal Highway, Ocean Avenue, Boynton Beach Boulevard and NE 4th Street, and a supporting freestanding parking garage with a total of 564 parking spaces. The applicant is also seeking to receive relief from Part 111, Chapter 3, Article 111, Section 6.F.2.c. of the Land Development Regulations which prohibits a freestanding parking garage from fronting an arterial or collector roadway and restricts the maximum height of a freestanding parking garage to 75 feet. The relief applications include, four (4) Community Design Appeal applications (CDPA 22-002, 23-006, 23-007, 23-008) applicable to each elevation of the parking garage, a Height Exception application (HTEX 23-001) for the proposed egress staircase, and a variance (ZNCV 23- 002) for relief from Part 111, Chapter 4, Article 11, Section 4.B.3.c Urban Landscape Buffer (Type 2), to grant a variance of seven (7) feet from the required twelve (12) foot buffer, to allow for a five (5) foot wide landscape buffer, and the elimination of the requirement to provide a six (6) foot tall masonry wall. Finally, the request includes three (3) applications for abandonments (ABAN 22-001, 22-002, 22-003) to vacate the full length of the alleyway located within the southern section of the site, a portion of NE 1st Avenue, and a portion of the alleyway located within the northern section of the site. The commercial portion of the project totals 17,089 square feet including restaurants, a creative office space, and retail along Federal Highway, Ocean Avenue, and NE 4th Street. Included within the commercial square footage is the relocation of the existing Hurricane Alley Restaurant to the intersection of Boynton Beach Boulevard and NE 4th Street. In addition, a restaurant is proposed to front Ocean Avenue and a cafe is planned to be located adjacent to Dewey Park. The creative office space will have frontage along Federal Highway and the retail space will front NE 4th Street. Of the 300 residential units 201 are one (1) bedroom, 85 are two (2) bedroom, and 14 are three (3) bedroom units. The units range in size from 572 square feet to 1,423 square feet. Each unit also has a balcony or terrace that either faces out towards the street or Dewey Park, or in towards one of the ground floor amenity areas. Relative to the floor area ratio (FAR) regulations within the code, the Mixed Use Core (MU -C) zoning district Page 299 of 971 has a maximum FAR of 4.0. The project is also located within the "Transit Core" (1/4 mile radius of the planned station), which requires that new development have a minimum density of 40 dwelling units per acre; the project proposes a density of 98.7 du/ac based on participation in the City's Workforce Housing Program (Exhibit G — Conditions of Approval). Under this provision, the development can receive a 25% density bonus to the maximum density allowed by the MU -C zoning district (80 du/ac). The proposed density, with the bonus, complies with the maximum density permitted within the MXH future land use category (100 du/ac). The Planning & Development Board recommended APPROVAL of this request during the February 6, 2023 meeting. How will this affect city programs or services? This will not affect City programs or services. Fiscal Impact: There is no fiscal impact to budget for this item. Alternatives: Staff has reviewed this request for a New Major Site Plan and Master Plan, and recommends DENIAL due to the applicant's variance request (ZNCV 23-002) which staff has determined does not meet the required review criteria (refer to staff report ZNCV 23-002), should the City Commission approve the requested variance of the required Urban Landscape Buffer Type 2, staff recommends APPROVAL subject to approval of the accompanying applications and satisfying all comments indicated in Exhibit G — Conditions of Approval. Any additional conditions recommended by the Board or required by the City Commission shall be documented accordingly in the Conditions of Approval. Strategic Plan: Strategic Plan Application: N/A Climate Action Application: N/A Is this a grant? Grant Amount: Attachments: Page 300 of 971 Type D Staff IRE)port D I ocaboin IMa p D Exhibit D Exhibit D Exhibit D Exh li lb li t D Exh li lb li t D �D ings D Exh li lb li t D C:: D OthE)r Description Staff IRE)p.sir t Exhibit A I ocaboin IMa p Exh �i bi t . 1 FICN aind OWIE)r II.....list Exhibit B EAshing Zoiniing Exhibit C FlrolPOSEd Exhibit ID Exishing l:::::L.JltL.Jlir'E) I aind USE) Exhibit IE FlrolPOSEd AbaindoinirTIENI'AS, ExhibitIF::: PrOjE)CA IRlair s Exhibit Cly Coindhoins of Appirov,-,.Ill DE)V(.)lopirTIENI'lt OrdE)r Appicaint IFlirEsa ENI'Itahoin Page 301 of 971 TO: THRU: FROM: DATE: DEVELOPMENT DEPARTMENT PLANNING AND ZONING DIVISION MEMORANDUM NO. PZ 23-008 STAFF REPORT Chair and Members Planning and Development Board Amanda Radigan, AICP, LEED AP Planning and Zoning Director ,Aal,2 Craig Pinder, Planner II January 12, 2023 PROJECT NAME: The Pierce Major Master Plan Modification (MPMD 22-005) and; New Major Site Plan (NWSP 22-004) REQUEST: Approval of a New Master Plan (MPMD 22-005) and New Major Site Plan Modification (NWSP 22-004) application for a mixed-use development consisting of an eight (8) -story building with 300 dwelling units, 17,089 square feet of commercial space, associated recreational amenities, and parking on a 3.04,,,,,, acre site. PROJECT DESCRIPTION Property Owner: Boynton Beach CRA & BB QOZ LLC, (see Exhibit A.1) Applicant: BB QOZ, LLC Agent: Jeffery Burns, Affiliated Development Rebecca Zissel/Sachs Sax Caplan, P.L. Location: Generally located at northwest corner of Ocean Avenue and Federal Highway, extending north to Boynton Beach Boulevard and Federal Highway, extending west to NE 4th Street and Federal Highway, and south to approximately one-half block north of Ocean Avenue (see Exhibit A Location Map) Existing Land Use: Mixed Use High (MXH) Proposed Land Use: Mixed Use High (MXH) Existing Zoning: Central Business District (CBD) Proposed Zoning: Mixed Use -Core (MU -Core) Page 302 of 971 The Pierce (NWSP 22-004, MPMD 22-005) Memorandum No PZ 23-008 Page 2 Proposed Use: Mixed use development with 300 multi -family units, approximately 17,089 square feet of commercial space, recreational amenities, parking, and other related site improvements. Acreage: 3.04 acres Adjacent Uses: North: To the north, right-of-way of Boynton Beach Boulevard, then further north, developed commercial properties classified Mixed Use High (MXH) and zoned Central Business District (CBD) South: To the southwest, the Dewey Park classified Mixed Use High (MXH) zoned Central Business District (CBD); to the south, right-of-way of Ocean Avenue, then further south, a mixed-use project AKA 500 Ocean classified MXH and zoned Mixed Use - Core (MU -C) East: To the east and northeast, developed commercial properties classified Mixed Use -High (MXH) and zoned Central Business District (CBD); on the southeast, right-of-way for Federal Highway, then an undeveloped property classified MXH and zoned Mixed -Use Core (MU -C) West: Right-of-way of NE 4th Street, then an undeveloped parcel classified Mixed Use -High (MXH) and zoned Central Business District (CBD). PROPERTY OWNER NOTIFICATION A notice of the requests was mailed to owners of properties within 400 feet of the subject properties, and signs were posted for the Planning & Development Board and City Commission meeting dates. The applicant has certified that they posted signage and mailed notices in accordance with Ordinance No. 04-007 & 05-004. BACKGROUND Proposal: The Pierce is a proposed mixed-use development that will be situated on 3.04 acres located within the Downtown District as defined by the CRA Community Redevelopment Plan. The project site is an assemblage of properties consisting of eight (8) developed and undeveloped parcels, including one- and two-story commercial buildings (retail, restaurant, and offices) and surface parking lots. K Page 303 of 971 The Pierce (NWSP 22-004, MPMD 22-005) Memorandum No PZ 23-008 Page 3 The applicant is requesting approval of several concurrent applications for the development of The Pierce (see the respective staff reports). The first application, REZN 22-001, is to rezone the property from CBD (Central Business District) to Mixed Use -Core (MU -C). The next two applications, NWSP 22-004 and MPMD 22- 005, are for New Major Site Plan and New Master Plan approval, which proposes an 8 -story mixed-use development consisting of approximately 17,089 square feet of ground floor commercial spaces adjacent to Federal Highway, Ocean Avenue, Boynton Beach Boulevard and NE 4th Street, and a supporting freestanding parking garage with a total of 564 parking spaces. The applicant is also seeking to receive relief from Part III, Chapter 3, Article III, Section 6.F.2.c. of the Land Development Regulations, which prohibits a freestanding parking garage from fronting an arterial or collector roadway, and restricts the maximum height of a freestanding parking garage to 75 feet. The relief applications include, four (4) Community Design Appeal applications (CDPA 22-002, 23-006, 23-007, 23-008) applicable to each elevation of the parking garage, a Height Exception application (HTEX 23-001) for the proposed egress staircase, and a variance (ZNCV 23-002) for relief from Part III, Chapter 4, Article II, Section 4.B.3.c Urban Landscape Buffer (Type 2), to grant a variance of seven (7) feet from the required twelve (12) foot buffer, to allow for a five (5) foot wide landscape buffer, and the elimination of the requirement to provide a six (6) foot tall masonry wall. Finally, the request includes three (3) applications for abandonments (ABAN 22-001, 22-002, 22-003) to vacate the full length of the alleyway located within the southern section of the site, a portion of NE 1St Avenue, and a portion of the alleyway located within the northern section of the site. ANALYSIS Traffic: A traffic study was sent to the Palm Beach County Traffic Division for review. The project is located within the boundaries of the City of Boynton Beach TCEA (Traffic Concurrency Exception Area), and therefore is not required to meet the Palm Beach County Traffic Performance Standards. The project would generate 1,664 new daily trips with 126 AM peak trips and 115 PM peak trips. School: The applicant has submitted a School Capacity Availability Determination (SCAD) application to the School District of Palm Beach County to confirm that area schools have adequate capacity to accommodate the potential public -school students who will reside in the proposed dwelling units with their families. Approval of the 3 Page 304 of 971 The Pierce (NWSP 22-004, MPMD 22-005) Memorandum No PZ 23-008 Page 4 application request is contingent upon approval of the SCAD application (Exhibit G — Conditions of Approval). Utilities: The City's water capacity would meet the projected potable water demand for this project. The applicant will be making several upgrades to utility lines in the vicinity of the project to meet the fire flow and water demand requirement as part of the site development. At the time of permitting, detailed engineering calculations are required for the wastewater flow for the project and proposed connection points to the existing sanitary sewer system to determine whether the project can be served by gravity sewer or if a lift station will be required (Exhibit G — Conditions of Approval). Police/Fire: The Police and Fire Departments have reviewed the site plan and the applicant has addressed all review comments during the DART review process. The Fire Department notes that they will be able to provide an adequate level of service for this project with current or expected infrastructure and/or staffing levels. Further plan review by Police and Fire will occur during the building permit process. Drainage: Conceptual drainage information was provided for the City's review. The Engineering Division has found the conceptual information to be adequate and is recommending that the review of specific drainage solutions be deferred until time of permit review. Access: The proposed project's main vehicular access point is located on NE 1St Avenue with a secondary access point on NE 4th Street. The project's access design from NE 1St Avenue is contingent on the approval of the Abandonment application request. In addition, the project also provides fourteen (14) on -street parking spaces along Federal Highway, Ocean Avenue, and NE 4th Street to serve the commercial uses on the first floor of the project. Sidewalks are provided along all street rights-of-way. The proposed sidewalks area minimum of ten (10) feet wide and are lined with street trees for shade. The sidewalk along Federal Highway also abuts a covered eight (8) foot active area that acts as a front patio entry into the ground floor residential units. Additionally, eight (8) foot active areas are provided along Ocean Avenue and Boynton Beach Boulevard. Parking: Off-street parking for the MU -C zoning district requires 1.33 parking spaces for studios and one -bedroom units, and 1.66 parking spaces for two (2) or more bedroom units. The project proposes 300 units (201 one -bedrooms, and 99 two and three -bedrooms), which would require 434 parking spaces. Additionally, the code requires guest 4 Page 305 of 971 The Pierce (NWSP 22-004, MPMD 22-005) Memorandum No PZ 23-008 Page 5 parking at a rate of 0.15 spaces per unit, which adds an additional 45 required spaces. The commercial space, which would allow a mix of retail, restaurants, and office uses, requires one (1) parking space per 200 square feet of gross floor area. Proposed is 17,089 square feet of retail, thereby requiring an additional 86 parking spaces. Under this standard methodology for calculating required off-street parking spaces, a grand total of 565 parking spaces would be required. Additionally, the developer has entered into a parking agreement with the Boynton Beach CRA (CRA) that involves providing 150 metered spaces for use by the general public. The applicant is required to provide a layout of the public parking spaces to be operated by the CRA, along with a shared parking study that meets the City's methodology requirements showing a reduction in the need of residential parking by at least 29 spaces (or a reduction in density resulting in at least 29 fewer required spaces), which shall be for the purpose of allowing the CRA to install meters in 150 spaces for public parking (Exhibit G — Conditions of Approval). The site plan proposes 578 parking spaces, an excess of thirteen (13) spaces. Regular parking space dimensions would conform to code requirements for the CRA of 9 feet by 18 feet for 90 -degree parking and 8 feet by 22 feet for parking parallel spaces. The applicant proposes an eight (8) -story freestanding parking garage that would accommodate up to 564 vehicles. The applicant will be required to comply with the City's residential parking requirements to ensure that designated resident parking spaces are reserved for, and made available for the residents to minimize the use of the retail parking spaces by residents. This requirement shall be monitored and enforced by the applicant (Exhibit G — Conditions of Approval). There are an additional 14 on -street parking spaces; four (4) on Federal Highway and three (3) on Ocean Avenue and seven (7) on NE 4th Street. Landscaping: The Plant List (Sheet LP -1) indicates that the project would add a total of 224 trees, 81 of them being canopy trees (including 14 relocated), and 143 palms, 1,595 accent and shrub specimens, and 4,070 small shrubs/vines/groundcover plants. Canopy trees are being maximized where spatially feasible, while palms are proposed in areas near the building foundation, within the landscape buffer and to further screen the parking garage. The exception to this objective intended to maximize canopy trees is within the ground floor amenity areas in an effort to maximize the amount of programmable open space on the site. All plant materials proposed for the landscape areas are required to be at least Florida number one grade and must be identified as having "low" or "medium" watering needs as 5 Page 306 of 971 The Pierce (NWSP 22-004, MPMD 22-005) Memorandum No PZ 23-008 Page 6 indicated in the South Florida Water Management's "Waterwise" publication. The proposed tree species would include the following: Gumbo Limbo, Green Buttonwood, Silver Buttonwood, Orange Geiger, Alexander Palm, Coconut Palm, Canary Island Date Palm, Sabal Palm, California Fan Palm, and Bougainvillea Standard. The applicant has selected several butterfly attracting plants and has exceeded the sustainability code's requirement of utilizing a minimum of 5% of butterfly attracting plant material within the planting scheme. Projects proposed in the Mixed -Use Core (MU -C) zoning district are subject to the "Streetscape Design" portion of the landscape code regulations. These code provisions recognize the desire for reduced building setbacks, thus creating an urban setting. The purpose of the "Streetscape Design" concept is to create a landscape design that encompasses both the private and public domain, to blend the two areas into one unified landscape scheme and optimize the pedestrian experience. This is accomplished through hardscape and landscape choices, covered walkways (arcades, awnings, tree canopy), and streetscape amenities (benches/seatwalls, lighting, accent plantings). The landscape design proposed by the applicant depicts the use of street trees and covered arcades to create the streetscape theme. This includes the uses of lower landscape material placed around private terraces and along the building foundation, and street trees placed between the street and sidewalk in an effort to provide maximum clear pedestrian pathways. Lastly, the project is required to provide a 12 -foot wide urban landscape buffer type 2 along the east property line, however, the applicant has submitted a relief application requesting a variance of seven (7) feet from the required twelve (12) foot landscape buffer, to allow for a five (5) foot wide landscape buffer, and the elimination of the requirement to provide a six (6) foot tall masonry wall (Exhibit G — Conditions of Approval). Building and Site: The proposed site area totals 3.04 acres. The proposed mixed-use buillding contains 300 dwelling units, some of which are located on the ground floor fronting Federal Highway with a covered arcade that creates an entry feature reminiscent to a covered front patio. A large courtyard which allows for the ground floor amenity deck is provided in between the main residential building and the proposed restaurant fronting Ocean Avenue, and is visible from the unit balconies. As noted previously, the proposed parking garage is freestanding and has eight (8) levels of parking which are able to be accessed LV Page 307 of 971 The Pierce (NWSP 22-004, MPMD 22-005) Memorandum No PZ 23-008 Page 7 from each level of the residential building. In order to meet the intent of the Land Development Regulations, the applicant proposes a number of design solutions to disguise the freestanding parking garage including an artwork on a perforated metal screen located on the southwest corner of the building (Exhibit G — Conditions of Approval), and arhictectural design elements consistent with the elevations of the multi -family building as described in the staff report for the Community Design Appeal Applications. The east side of the parking garage encroaches into the required twelve (12) foot landscape buffer by approximately seven (7) feet and as noted above under "landscaping", the applicant has submitted a relief application requesting a variance from the urban landscape buffer (type 2) requirements. The commercial portion of the project totals 17,089 square feet including restaurants, a creative office space, and retail along Federal Highway, Ocean Avenue, and NE 4th Street. Included within the commercial square footage is the relocation of the existing Hurricane Alley Restaurant to the intersection of Boynton Beach Boulevard and NE 4th Street. In addition, a restaurant is proposed to front Ocean Avenue and a cafe is planned to be located adjacent to Dewey Park. The creative office space will have frontage along Federal Highway and the retail space will front NE 4th Street. Of the 300 residential units 201 are one (1) bedroom, 85 are two (2) bedroom, and 14 are three (3) bedroom units. The units range in size from 572 square feet to 1,423 square feet. Each unit also has a balcony or terrace that either faces out towards the street or Dewey Park, or in towards one of the ground floor amenity areas. Relative to the floor area ratio (FAR) regulations within the code, the Mixed Use Core (MU -C) zoning district has a maximum FAR of 4.0. The project is also located within the "Transit Core" (1/4 mile radius of the planned station), which requires that new development have a minimum density of 40 dwelling units per acre; the project proposes a density of 98.7 du/ac based on participation in the City's Workforce Housing Program (Exhibit G — Conditions of Approval). Under this provision, the development can receive a 25% density bonus to the maximum density allowed by the MU -C zoning district (80 du/ac). The proposed density, with the bonus, complies with the maximum density permitted within the MXH future land use category (100 d u/ac). Building Height: The maximum building height allowed in the MU -C zoning district is 150 feet. The proposed building elevations depict the lower roof slab deck height of the multi -family building at 81 feet 6 inches, and an 7 Page 308 of 971 The Pierce (NWSP 22-004, MPMD 22-005) Memorandum No PZ 23-008 Page 8 upper roof slab height of 88 feet 6 inches located at the corners of the building. The tallest height indicated on the elevations is 91 feet 6 inches, measured to the top of the apartment stair parapet wall. Along Federal Highway, the proposed building elevations show that the building steps back 10 feet at an approximate height of 31 feet 5 inches and then extends to its overall height. In addition, the applicant has submitted a relief application requesting a height exception (HTEX 23-001) to exceed the maximum height of 75 feet for a freestanding parking garage to allow for a height of 77 feet 11 inches for the egress staircase. Setbacks: The MU -C zoning district requires no building setbacks, but rather a zero (0) build -to line with accommodation of the required pedestrian zone. The Land Development Regulations requires the building to be setback to allow for an enhanced public realm that includes two and a half (2.5) feet — five (5) feet for street trees, ten (10) feet for sidewalks, and eight (8) feet for active areas such as outdoor seating and retail uses. In those instances where a pedestrian zone is required, the building setback is measured from the back of curb to the exterior surface of the building or supporting columns. Please see the corresponding table below for the proposed setbacks, as provided on the architectural site plan (Exhibit F — Project Plans). Building Setbacks/Build-to-Line Building Setbacks Required Provided Mixed Use Multi -Family Building NE 1St Avenue 0' 42'9" NE 4th Street 0' 11'-9" East Ocean Avenue 20'-6"* 28'-255* East Ocean Avenue (at C4 Retail) 20-6"* 20'-655* Federal Highway 20-6"* 22'-4"*** Parking Garage NE 1St Avenue 0' N/A** NE 4th Street 0' 0'-10" East (Interior) 0' 5'-0" North (Interior) 0' 15'-055* Hurricane Alley Restaurant NE 4th Street 0' 1858" Boynton Beach Boulevard 20-655* 205655* East (Interior) 0' 957" South (Alley) 0' N/A** *Measured from back of curb per pedestrian zone requirements. Highway, additional setback required for 120'0" ultimate ROW drawings At N Federal — refer to civil Page 309 of 971 The Pierce (NWSP 22-004, MPMD 22-005) Memorandum No PZ 23-008 Page 9 ** Alley/Street at setback of building proposed to be vacated as part of project site plan approval ***12'-9" setback to arcade, 8'0" from arcade to building face — see site plan. Amenities: The project proposes a hardscaped public plaza with an art sculpture at the intersection of Federal Highway and Ocean Avenue (Exhibit G — Conditions of Approval), which connects to the pedestrian zone along both roadways. In addition, the ground floor arcade provided along Federal Highway acts as a front covered patio entry for the ground floor apartments. Along Ocean Avenue, covered outdoor seating is provided in the active area for the Ocean Eatery restaurant (C4 -Retail) and Dewey Park Cafe (C5 -Retail). The pedestrian zones include a street tree area, sidewalks, active areas, and covered walkways. The project has been designed with a large interior courtyard located between the multi -family building and the Ocean Avenue restaurant for resident use, containing the community pool, outdoor lounging areas, and lush tropical landscaping. A smaller ground floor amenity area with a pickleball court and dog run is provided between the parking garage and multi -family building. The private amenities located within the building will include a host of programmed spaces on the ground floor and a rooftop amenity for the residents' enjoyment. The developer also worked with Palm Tran of Palm Beach County to locate and create a new transit shelter on site (Exhibit G — Conditions of Approval), designed utilizing some of the architectural characteristics of this project. Design: The intended architectural style for the project is a mid -rise modern interpretation of "contemporary coastal" architecture, including design features that pay homage to local history and the community aesthetic. The architectural design elements that elicit a coastal style, are the exterior color tones such as the white stucco finish, reminiscent to historic lighthouses and watercraft color tones used in boating. A strong vertical base that interacts with the pedestrian zone fronting Federal Highway provides shade and protection. The framed corners of the building along with the selected window frames will be painted in a dark finish to provide a strong contrast to the white stucco finish, which is similar to coastal home designs seen in the South Florida area. The upper portions of the building include separate vertical elements that create a scale consistent with the approved Broadstone and existing 500 Ocean developments. The project's materials include brick veneer, clear glass at the ground floor commercial level, concrete eyebrows, metal awnings, vertically - 9 Page 310 of 971 The Pierce (NWSP 22-004, MPMD 22-005) Memorandum No PZ 23-008 Page 10 Sustainability: oriented windows, and a predominantly white painted building which aids in accentuating the clean lines of the architecture. The materials and finishes are consistent with the contemporary coastal architectural style. Mixed-use projects are designed to create a pedestrian -friendly environment by placing the buildings along the pedestrian zones and articulating the building mass to avoid a repetitive, continuous, monotonous building block. The building mass of the multi -family building fronting Ocean Avenue steps back and wraps the ground floor amenity deck, creating a break in the building mass. This layout allows for the proposed Ocean Eatery Restaurant to be at a reduced height (30') which further helps to reduce the building mass fronting the roadway. This approach mitigates the visual impact of the building's height onto the 500 Ocean multi -family development to the south. Along Federal Highway, the building maintains its mass along the length of the roadway and varies in height to create a tower element at the south end of the building. As mentioned previously, the building facing Federal Highway is stepped back ten (10) feet at a height of 26 feet in order to move the mass of the building farther from the pedestrian environment. Mixed-use developments must achieve a minimum of 25 sustainability points (see Exhibit G — Conditions of Approval). The development would satisfy the requirement by providing the following: SUSTAINABLE DEVELOPMENT STANDARDS POINTS ENERGY Heat Island Reduction - 50% of the non -roof impervious site 4 Efficient Cooling - All air conditioners are Energy Star qualified. Minimum SEER 16. 2 Efficient Water Heating - At least 75% of hot water on premises is heated via Energy Star Certified water heaters or solar water heaters. 2 Cool Roof - Use roofing materials that have a Solar Reflective Index (SRI) 75 for low -sloped roofs (<2:12) or 25 for steep- sloped roofs (>2:12) for a minimum of 75% of the roof surface. 2 Building Color - Use of white or cool light colors for the body of buildings to reflect rather than absorb heat and reduce cooling costs - as shown on architectural plans. 2 Where provisions of shade structures are not required per code: Structures such as awnings, screens, 4 10 Page 311 of 971 The Pierce (NWSP 22-004, MPMD 22-005) Memorandum No PZ 23-008 Page 11 louvers, or other architectural devices shall cover a minimum of 50% of glazed openings. Lighting - Provide energy efficient lighting such as LED lighting for building interiors for 100% of proposed lighting. 1 Energy star appliances - All appliance with in a building are 100% energy star. 2 Recycle & Waste Reduction Recycle station \ dumpster area Recycle chute(s) in Mixed Use Districts and dumpster, which include a recycle station. 1 URBAN NATURE Tree Canopy - Provide canopy trees in an amount that exceeds the minimum number of required trees by 15%. 3 TRANSPORTATION Parking Structure - At least 75% of the development's total number of required off-street parking spaces is contained in a parking deck or garage. 2 Total Points 25 Lighting: The photometric plans (Sheets E1.2 & E1.3) include 43 freestanding light pole fixtures, with varying pole heights. The light poles proposed along Boynton Beach Boulevard and Federal Highway will have a pole mounting height of 30' and will match the design of the existing light poles along Seacrest Boulevard; light poles located on Ocean Avenue and NE 4th Street will have a pole mounting height of 15-9" and will match the design of the existing light poles in front of City Hall. Light poles located within the interior of the site will have a mounting height of 12', and the light poles located on the rooftop of the garage will have a mounting height of 20'. The condition of approval requires the spot readings to be a maximum of 5.9 foot- candles (see Exhibit G — Conditions of Approval). Signage: Site and building signage have not been finalized and a Sign Program must be approved in conjunction with requesting any sign permits for the site (see Exhibit G — Conditions of Approval). Public Art: The project is subject to the Art in Public Places requirement, and the applicant has identified a location for a sculpture at the intersection of Federal Highway and Ocean Avenue (Exhibit G — Conditions of Approval). In conjunction with the requirements for the 11 Page 312 of 971 The Pierce (NWSP 22-004, MPMD 22-005) Memorandum No PZ 23-008 Page 12 Community Design Appeal applications, the applicant will also provide artwork to welcome visitors and residents to Boynton Beach in the form of a perforated metal screen on the southwest corner of the freestanding parking garage extending from the second floor to the top floor level. This concept is supported by City staff as well as the Art Advisory Board. The applicant is required to spend a minimum of $150,000 of the Art in Public Places art fees on the sculpture at the northwest corner of Ocean Avenue and Federal Highway and the size shall be complementary to the Albert Paley sculpture at 500 Ocean (see Exhibit G — Conditions of Approval). RECOMMENDATION Staff has reviewed this request for a New Major Site Plan and Master Plan, and recommends DENIAL due to the applicant's variance request (ZNCV 23-002) which staff has determined does not meet the required review criteria (refer to staff report ZNCV 23- 002), should the City Commission approve the requested variance of the required Urban Landscape Buffer Type 2, staff recommends APPROVAL subject to approval of the accompanying applications and satisfying all comments indicated in Exhibit G — Conditions of Approval. Any additional conditions recommended by the Board or required by the City Commission shall be documented accordingly in the Conditions of Approval. S:\Planning\SHARED\WP\PROJECTS\The Pierce - 101 N Federal (flea 115 N Federal Hwy)\NWSP 22-004 MPMD 22-005\—Staff Report\Staff Report_NWSP 22-004—MPMD 22-005.docx 12 Page 313 of 971 Page 314 of 971 Exhibit A.1 PROPERTY 1: Address: 508 E BOYNTON BEACH BLVD PCN: 08434528030010060 Owner: Boynton Beach CRA Legal Description: Lots 6 and 7, Block 1, Original Town of Boynton, according to the map or plat thereof as recorded in Plat Book 1, Page 23, Public Records of Palm Beach County, Florida. PROPERTY 2: Address: NE 4' St. PCN: 08434528030010080 Owner: Boynton Beach CRA Legal Description: Lots 8 and 9, Block 1, TOWN OF BOYNTON, according to the map or plat thereof as recorded in Plat Book 1, Page 23, of the Public Records of Palm Beach County, Florida. PROPERTIES 3 and 4 (share a legal description) Address: NE 1st Ave PCN: 08434528030010100 Owner: Boynton Beach CRA Legal Description: 1, 2, 3, 4, 5, 6, and 7, Block 6, Original Town of Boynton, a subdivision of the City of Boynton Beach, Florida according to the Plat thereof in the Office of the Clerk of the Circuit Court, recorded in Plat Book 1, Page 23, excepting therefrom the North 5' of Lots 5 and 7 and the West 5' of Lot 7, and existing right-of-way for U.S. Highway 91 and Lots 10, 11, and West 1/2 of Lot 12, Block 1, Original Town of Boynton, a subdivision of the City of Boynton Beach, Florida according to the Plat thereof in the Office of the Clerk of the Circuit Court, recorded in Plat Book 1, Page 23, Public Records of Palm Beach County, Florida. Address: 115 N Federal Hwy PCN: 08434528030060010 Owner: Boynton Beach CRA Legal Description: 1, 2, 3, 4, 5, 6, and 7, Block 6, Original Town of Boynton, a subdivision of the City of Boynton Beach, Florida according to the Plat thereof in the Office of the Clerk of the Circuit Court, recorded in Plat Book 1, Page 23, excepting therefrom the North 5' of Lots 5 and 7 and the West 5' of Lot 7, and existing right-of-way for U.S. Highway 91 and Lots 10, 11, and West 1/2 of Lot 12, Block 1, Original Town of Boynton, a subdivision of the City of Boynton Beach, Florida according to the Plat Page 315 of 971 thereof in the Office of the Clerk of the Circuit Court, recorded in Plat Book 1, Page 23, Public Records of Palm Beach County, Florida. PROPERTIES 5, 6, and 7 (share a legal description): Address: 511 E Ocean Ave PCN: 08434528030060100 Owner: Boynton Beach CRA PARCEL I: Lot 10, Less the South 8 feet thereof, and the West 7 feet 8 inches of Lot 11, Less the South 8 feet thereof, Block 6, Boynton, according to the plat thereof, as recorded in Plat Book 1, Page 23, of the Public Records of Palm Beach County, Florida. PARCEL 2: The East 42 feet 4 inches of Lot 11, Less the South 8 feet thereof, in Block 6, Boynton, according to the plat thereof, as recorded in Plat Book 1, Page 23, of the Public Records of Palm Beach County, Florida. PARCEL 3: Lot 12, Block 6, Original Town of Boynton, according to the plat thereof, as recorded in Plat Book 1, Page 23, of the Public Records of Palm Beach County, Florida. Address: 515 E Ocean Ave PCN: 08434528030060111 Owner: Boynton Beach CRA Legal Description: PARCEL I: Lot 10, Less the South 8 feet thereof, and the West 7 feet 8 inches of Lot 11, Less the South 8 feet thereof, Block 6, Boynton, according to the plat thereof, as recorded in Plat Book 1, Page 23, of the Public Records of Palm Beach County, Florida. PARCEL 2: The East 42 feet 4 inches of Lot 11, Less the South 8 feet thereof, in Block 6, Boynton, according to the plat thereof, as recorded in Plat Book 1, Page 23, of the Public Records of Palm Beach County, Florida. PARCEL 3: Lot 12, Block 6, Original Town of Boynton, according to the plat thereof, as recorded in Plat Book 1, Page 23, of the Public Records of Palm Beach County, Florida. Page 316 of 971 Address: 529 E Ocean Ave PCN: 08434528030060120 Owner: Boynton Beach CRA Legal Description: PARCEL 1: Lot 10, Less the South 8 feet thereof, and the West 7 feet 8 inches of Lot 11, Less the South 8 feet thereof, Block 6, Boynton, according to the plat thereof, as recorded in Plat Book 1, Page 23, of the Public Records of Palm Beach County, Florida. PARCEL I The East 42 feet 4 inches of Lot 11, Less the South 8 feet thereof, in Block 6, Boynton, according to the plat thereof, as recorded in Plat Book 1, Page 23, of the Public Records of Palm Beach County, Florida. PARCEL 3: Lot 12, Block 6, Original Town of Boynton, according to the plat thereof, as recorded in Plat Book 1, Page 23, of the Public Records of Palm Beach County, Florida. PROPERTY 8: Address: 101 N Federal Hwy PCN: 08434528030060130 Owner: BB QOZ LLC Legal Description: TRACT 1: All of the North 58.25 feet of Lot 14 and all of the East 9 feet of the North 58.25 feet of Lot 13, Block 6 original townsite of Boynton, Florida, according to a plat thereof on file in Plat Book 1, Page 23, Palm Beach County, Florida public records, and also according to the attached sketch of Lot 14 and East 9 feet of Lot 13, Block 6, original townsite of Boynton, Florida, surveyed and prepared by George S. Brockway, Engineer, under date of December, 1939, and marked on said sketch as "Tract I"; also TRACT I All of the South 68 feet of Lot 14 and the East 9 feet of South 68 feet of Lot 13, Block 6, original townsite of Boynton, Florida, according to a plat thereof on file in Plat Book 1, Page 23, Palm Beach County, Florida public records, and also according to the attached sketch of Lot 14 and East 9 feet of Lot 13, Block 6, original townsite of Boynton, Florida, surveyed and prepared by Page 317 of 971 George S. Brockway, Engineer, under date of December 1939, and marked on said sketch as "Tract 2". TRACT 3: West 41 feet of Lot 13 in Block 6 of the Town of Boynton, Palm Beach County, Florida, according to the plat thereof on file in the office of the Clerk of the Circuit Court in and for Palm Beach County, Florida, recorded in Plat Book 1, Page 23. LESS AND EXCEPT The East 10 feet of Lot 14 and the South 8 feet, less the East 10 feet thereof, of Lot 14, Block 6, Original Town of Boynton, according to the plat thereof as recorded in Plat Book 1 at Page 23 of the Public Records of Palm Beach County, Florida; being in Section 28, Township 45 South, Range 43 East. And That part of the aforementioned Lot 14, Block 6 of Original Town of Boynton, which is included in the external area formed by a 12 foot radius arc tangent to a line 8 feet North of and parallel to the South line of said Lot 14 and tangent to a line 10 feet West of and parallel to the East line of said Lot 14; subject to the existing right-of-way for Ocean Avenue. Page 318 of 971 Page 319 of 971 Page 320 of 971 I Page 321 of 971 Page 322 of 971 AnEFILIATED QMRINKA+ (0 0 Revisions SITE PLAN APPROVAL THE PIERCE ARCHITECTURAL SITE PLAN & SITE DATA J 0 0 AnEFILIATED Q=RlNKA+ (0 0 Revisions SITE PLAN APPROVAL THE PIERCE MASTER PLAN BUILDING ELEVATION - RETAIL END 2 — -1 1 ELEVATION LEGEND NEI KEY PLAN - LEVEL 01 AnEFILIATED ,c,,',RINKA+ 0 Revisions SITE PLAN APPROVAL THE PIERCE 0 0 ELEVATIONS - F MIXED-USE o BUILDING 3 BUILDING ELEVATION -TYPICAL CORNER --, ELEVATION LEGEND KEY PLAN - LEVEL 01 m m , mm 4N, ELEVATION - NORTH - RETAIL 4 e e -BUILDING ELEVATION LEGEND KEY PLAN - LEVEL 01 AEEILIATED °RINKA+ O Revisions y.. SITE PLAN APPROVAL THE PIERCE ELEVATIONS - MIXED -USE BUILDING Ek ,, h r... I L] o 0 o 'Z BUILDING ELEVATION WEST o .� BUILDING ELEVATION RETAIL END 02 AEEILIATED °RINKA+ O Revisions y.. 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AUTOMATIC WATER SUPPLY SYSTEM WILL BE PROVIDED IN COMPLIANCE WITH PART III, CHAPTER 4. ARTICLE II. SECTION 4.6 OF THE LAND DEVELOPMENT REGULATIONS WATER SOURCE TO BE COORDINATED WITH CIVIL ENGINEER. POTABLE WATER IS NOT TO BE USED FOR IRRIGATION PURPOSES, INSTEAD, ALTERNATIVE SOURCES OF WATER SHALL BE USED FOR IRRIGATING LANDSCAPING MATERIALS SUCH AS WELL WATER, LAKES, AND/OR RECLAIMED WATER WHERE AVAILABLE AND USED IN COMPLIANCE WITH CITY AND COUNTY REGULATIONS. 100% OF PROPOSED PLANTING CAN BE FOUND IN THE LIST OF SPECIES IN THE MOST RECENT EDITION OF SOUTH FLORIDA WATER MANAGEMENT DISTRICT WATERWISE SOUTH FLORIDA LANDSCAPES uy�e eyu - Planting Mute YaI//-pecificatione CANCRY s LEGEND/KEY PLANT NAME QUANT ERING NEEDS 6lxwo 1 26 12' OA, b' CT, I'M CAL. LOW FLORIDA FANCY IN �NaDTT ooTR� 9 FORIDA A 6 GA Gw oMIHC DCTISNw�o �E s MINGAL o O oRAn6E GEIGe3 TREE IS a MIN. CP T. Low Planting Material/Jpecifications ES LEGEND—Y PLANT NAME CLANTITI SIZHSPECIFICATIONS wATEERING NEEDS � ^ ALNTOII _ND� PALnn NDeAE 2 12 ORIDP FANCY 16 CT. CPL MEOILwn 33�,�.ryV�� co�NLn aALrvl ]6 STRAIOA BUNK MING Low CLCEZ-fnRz caNART Isv+w DATe PALM 3 14'AOCHIbSCT, IZ'CPL LOW var,L PaLM z0 M T Low 20 1 'C 2. ieCt. 11 21 C7. $ wASHCALIFORNIa �PN FILM IS 5 MIN. CPL. ING low Pluntiny Material//'pecificutione SIGNATURE TREES LEGEND/KEr PLANT NAME GJANTITI SIZCDPECIFICPTION6 BOWPINVIUEA SPP. e' IT, LOw 11,1 IINEAP IIET A__ 2022. ,n za Planting Requirements � 'T'L 11-1 7IL11INT 1117 Rw15 6oLm+ Il C_A PES SHRUBS I[.I��niUn nr,rn -111Y PLANT NAME OTT. SISEE'REMARKS WATER— NEEDS wxea Po ASCLCOMMON MILK® 80 SPREAD LO'w e,lu^e 1A11EEAUTI EERRT HEDGE 2O SPREAD LCW PIA X666/& RED TIP G DPLDM N� PRD Dw wARx-RICAFKFEAM vTLE �ooE 30 SPREAD Low K.Nswlsswe a , zo SPREAD _IuM sAw?—z.'ASS 7 SPR24 EAD S GROUNDCOVERS U SIM/KE Q (�.xbo AL.. 16 O.C. Low S, 11 DUTTEZFLr w�D LL G PL G' --N TIP GG w a s IN;DIT 2IoD 11 LS S VINES S SIM/KEr OTT, SIZE/REMARKS 0 Q _UGANIo L. -M 1RED LLLJLLlI DOUGAIN�ILLEA v1 E cow Ns LAWN AND MULCH A SYM/KEY MATERIAL QTY SIZE/REMARKS Lavidscape_/_chedule 7—�.� ScnLE IN FEET O' 16' 32' d8' N GRAPHIC SCALE AFFILIATED ---"-- --- --__- ---___- ------ - - -- r� ❑�` KEITH i e i xx�xx IHRFL o Fo"RR, € "°M'35s xx��xx ,o®x� SITE PLAN APPROVAL THE PIERCE MATCH LINE REF SHEET CP-102 .m m mxs.Moux.ae� — =-_ rvaEx g„ o mxs. cxoswau: x°.e - F ' o 0 0 - _. coxa - ox Z .°xs sx°wx xEnEaxa `° AEE x°x.x aeEn rw x� enxxt ee rtix PAVING, GRADING AND O DRAINAGE PLAN z CALCULATION 7MMARYj,,.,, AFFILIATED SGM ENGINEERING or SITE PLAN APPROVAL THE PIERCE PHOTOMETRIC PHOTOMETRIC SITE PLAN SITE PLAN E1.2' AEEILIATED °RINKA+ M�ttR k � 4415 t w S raj 4 0 Revisions SITE PLAN APPROVAL THE PIERCE MASSING STUDY EXHIBIT "G" Conditions of Approval Project Name: The Pierce Site Plan & Master Plan File number: NWSP 22-004 & MPMD 22-005 Reference: 41h review of plans identified as a New Maior Site Plan and New Master Plan with a January 10, 2023 Planning and Zoning Department date stamp marking. DEPARTMENTS INCLUDE REJECT ENGINEERING / PUBLIC WORKS / FORESTRY / UTILITIES Comments: 1. At the time of permitting, provide detailed engineering calculations for the wastewater flow for the project and proposed connection points to the existing sanitary sewer system. The capacity in the X sanitary sewer system and existing pipe sizes shall be considered to determine if the project can be served by gravity sewer or if a lift station will be required. 2. For the alley on the north side of NE 1St Avenue, provide a 12 -foot easement for the portion of the sanitary main that will be in the X abandonment. 3. In addition to the site lighting requirements, the existing street lights along Boynton Beach Blvd. and Federal Hwy. shall be replaced with FPL 37' concrete poles. Existing street lights along X Ocean Ave., NE 41h St. and NE 1St St. shall be replaced with FPL 20' aluminum poles. Please refer to the PDFs emailed 12/30/2022. 4. The developer shall underground all existing overhead lines within and adjacent to the subject project along Boynton Beach Blvd., Federal Hwy., Ocean Ave. and both sides of NE 41h St., NE 1St St. and alleyways. Easements shall be coordinated with requisite utility authorities and shall be provided for the installation of underground utilities or relocating existing facilities in conformance X with the respective utility authority's rules and regulations. The developer shall make necessary cost and other arrangements for such underground installations with each of the persons, firms, or corporations furnishing utility service involved. 5. Provide and maintain unobstructed safe -sight triangles at intersections and driveways. X 6. Minor driveways may be constructed as a drop curb. Intermediate driveways shall provide minimum pavement return radii of 30 feet. X 7. Driveway north of parking garage servicing Hurricane Alley site shall be used for service vehicles only; no parking. X Page 342 of 971 The Pierce (NWSP 22-004, MPMD 22-005) Conditions of Approval Paqe 2 of 6 DEPARTMENTS INCLUDE REJECT 8. Drop-off areas are not permitted to include valet use; any changes to add valet parking shall require a Site Plan Modification. X 9. Clearly indicate all existing and proposed easements. X 10. Parking garage columns shall not encroach into required drive aisles width. X 11. Any modifications to parking garage shall require administrative approval prior to permitting. X 12. Please note that changes or revisions to these plans may generate additional comments. Acceptance of these plans during the DART (Development Application Review Team) process does X not ensure that additional comments may not be generated by the commission and at permit review FIRE Comments: None. All previous comments acknowledged at DART meeting. POLICE Comments: None. All previous comments acknowledged at DART meeting. BUILDING Comments: None. All previous comments acknowledged at DART meeting. PARKS AND RECREATION Comments: None. All previous comments acknowledged at DART meeting. PUBLIC ART Comments: 14. A minimum of $150,000 of the Art in Public Places art fees shall X be spent on a sculpture at the northwest corner of East Ocean Avenue and Federal Highway (i.e. the southeast corner of the site). Page 343 of 971 The Pierce (NWSP 22-004, MPMD 22-005) Conditions of Approval Paqe 3 of 6 DEPARTMENTS INCLUDE REJECT 15. Per the Art Advisory Board's direction increase the size of the X sculpture located at the corner of Ocean and Federal to be similar in size and complementary to the Albert Paley sculpture at 500 Ocean. The Board gave a low priority to the use of Art in Public Places funds to be used for the mural facing Federal Highway on the garage. 16. Provide adequate lighting for all proposed artwork. X PLANNING AND ZONING Comments. 17. An application for a variance (ZNCV 23-002) was submitted to obtain relief from the required width and from the requirement to provide a wall within the Urban Landscape Buffer Type 2. X Approval of the New Major Site Plan and Master Plan applications are contingent upon the approval of the variance application. 18. Approval of the Major Master Plan and Site Plan applications are contingent upon the approval of the Abandonment (ABAN 22-001, 22-002, 22-003), Rezoning (REZN 22-001), Community Design X Appeal (CDPA 22-002, CDPA 23-006, CDPA 23-007, CDPA 23- 008, and Height Exception (HTEX 23-001) applications. 19. NE 4th Street is classified as a collector roadway according to the Comprehensive Plan of the City of Boynton Beach. Approval of the freestanding parking garage is contingent upon approval of all X requested community design appeal (CDPA) relief applications, as stated in comment #15. 20. Approval of the Major Master Plan and Site Plan applications are contingent upon the approval of the School Capacity Availability X Determination (SCAD) application. At time of permit, please submit a letter of approval for the SCAD application. 21. The project's approval is conditioned upon its participation in the City's Workforce Housing Program. X 22. At time of permit, please submit a traffic statement from Palm Beach County. X 23. The developer shall provide a perforated metal screen including a mural design on the southwest elevation of the parking garage as the scale and size is depicted on the referenced elevation X drawings. 24. Per the Sustainable Development Standards, one Electric Vehicle (EV) charging station is required per fifty thousand (50,000) X square feet of non-residential development. At time of permitting, Page 344 of 971 The Pierce (NWSP 22-004, MPMD 22-005) Conditions of Approval Paqe 4 of 6 DEPARTMENTS INCLUDE REJECT please identify one additional EV charging station for the commercial component of the site plan. The total required number of EV charging stations required by the Sustainable Development Standards for the proposed site plan is seven (7) servicing a total of fourteen (14) parking spaces. 25. The resident parking spaces shall be separated by a gate and/or gate arm to restrict public access to resident parking. The developer shall comply with the City's residential parking requirements to ensure that designated resident parking spaces X are reserved for, and made available to the residents to minimize the use of the retail parking spaces by residents. This requirement shall be monitored and enforced by the developer. 26. At time of permit, depict all parking spaces that are proposed to be metered and/or any surplus (above Code required) parking within the property. Please note that if any parking spaces are proposed X to be metered, additional review of the site plan and meter agreement may be required. 27. Per the Land Development Regulations, overhead doors shall not be located on building facades visible from Federal Highway. At time of permit, replace the overhead doors with sliding glass doors or accordion doors on the east building elevation for the Ocean X Avenue Restaurant, and provide the updated east elevation drawing. 28. At time of permit, please update the Ocean Avenue restaurant `key plan' on sheet A2.7 to match the revised floor plan. The drawings shall be consistent across all plan sets. Any unforeseen X changes to the plan(s) will be subject to additional review. 29. All buildings throughout the development shall have an appropriate and fully integrated rooftop architectural treatment which substantially screens all mechanical equipment, stairs, and elevator towers. All rooftop equipment must be completely X screened from view at a minimum distance of 600 feet. At the time of permitting, provide a line of sight drawing(s) showing compliance with this requirement. 30. At the time of permit, provide a comprehensive management plan that clearly illustrates how trash pickup will be handled on the site, X and identifies the central trash pickup location. 31. At time of permit, revise the dimensions of the bike rack detail to feet and inches. X Page 345 of 971 The Pierce (NWSP 22-004, MPMD 22-005) Conditions of Approval Paqe 5 of 6 DEPARTMENTS INCLUDE REJECT 32. At time of permit, provide additional height for the variation in the roof line. The proposed rhythm of the "breaks" in roofline is adequate, however, a one -foot difference in height is insufficient. Please increase the height of the roof line break at strategic X locations, for e.g. consider including a two -foot variation at strategic locations. 33. At time of permit, replace the site plan shown on the Landscape Plan with the updated site plan submitted on 12-29-22. Any unforeseen changes to the plan(s) will be subject to additional X review. 34. The Wax Myrtle Hedge proposed around the FPL transformer adjacent to Ocean Avenue is spec'd as 36" O.C. on the Landscape Plan (sheet L2.1), but the spacing provided in the Planting Material/Specifications table states 24" O.C. At time of X permitting, correct the specifications and ensure that the hedge is planted with tip -to -tip spacing. 35. At the time of permit, revise the spread of the Swiss Cheese plant spread to either 36 -inches or revise the spacing to 24 -inches on X center 36. Street trees are required to be spaced between twenty (20) — twenty-five (25) feet on center. At time of permit, revise the Perimeter Landscape Requirements table to state a minimum of every 25 linear feet rather than 30 linear feet, and revise the number of required trees. In addition, please include the trees required for the Urban Landscape Buffer Type 2 in this table to X show compliance. Please ensure that the proposed number of canopy trees satisfies the selected Sustainable Development option for "Urban Nature — Tree Canopy" as the project is required to achieve a minimum of 25 sustainability points. 37. At time of permit, please remove the reference to Suburban Landscape Buffer Type 1 from the Perimeter Landscape X Requirements on sheet L2.3. 38. Permanent off-street lighting levels for all multiple -family residential and non-residential uses shall not exceed five and nine -tenths (5.9) foot-candles for any spot location reading. At X time of permit, revise the photometric plan to ensure that spot readings do not exceed five and nine -tenths (5.9) foot-candles. 39. Please replace the site plan shown on the Photometric Plan with the updated site plan submitted on 12-29-22. Be advised that the X drawings shall be consistent across all plan sets. Any unforeseen Page 346 of 971 The Pierce (NWSP 22-004, MPMD 22-005) Conditions of Approval Paqe 6 of 6 DEPARTMENTS INCLUDE REJECT changes to the plan(s) will be subject to additional review. 40. Any existing overhead utilities around the perimeter of the site and all utilities required to service the site shall be placed below X ground at the cost of the applicant. 41. A Sign Program is required to be submitted and approved prior to the approval of any sign permits for the project. X 42. The applicant shall provide on -street parking on N Federal Highway, Ocean Avenue, and NE 4th Street as depicted on the X site plan submitted on 1-10-2023. 43. The applicant shall dedicate a 10' x 30' easement and place, at their cost, a bus shelter designed utilizing architectural elements, materials, and colors matching the proposed building along X Federal Highway. COMMUNITY REDEVELOPMENT AGENCY Comments: 44. Pursuant to the Parking Lease Agreement executed by the City, CRA, and Applicant on July 8, 2022, 150 spaces on the unrestricted side of the gate will count towards the Applicant's required parking and will function as public parking operated by the CRA. The Applicant will submit, at the time of building permit, a layout of the public parking spaces to be operated by the CRA, along with a shared parking study that meets the City methodology X requirements showing a reduction in the need of residential parking by at least 19 spaces (or a reduction in density resulting in at least 19 fewer required spaces), which shall be for the purpose of allowing the CRA (or the Applicant on behalf of the CRA) to install meters in 150 spaces for public parking. PLANNING & DEVELOPMENT BOARD CONDITIONS Comments: None. CITY COMMISSION CONDITIONS Comments: To be determined. Page 347 of 971 DEVELOPMENT ORDER OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA PROJECT NAME: APPLICANT: APPLICANT'S ADDRESS The Pierce (NWSP 22-004 & MPMD 22-002) BB QOZ, LLC. 613 NW 3RD AVENUE, SUITE 104, FORT LAUDERDALE, FLORIDA 33311 DATE OF HEARING RATIFICATION BEFORE CITY COMMISSION: February 21, 2023 APPROVAL SOUGHT: Approval of a New Master Plan (MPMD 22-005) and New Major Site Plan Modification (NWSP 22-004) application for a mixed-use development consisting of an eight (8) -story building with 300 dwelling units, 17,089 square feet of commercial space, associated recreational amenities, and parking on a 3.04 -acre site. LOCATION OF PROPERTY: Generally located at northwest corner of Ocean Avenue and Federal Highway, extending north to Boynton Beach Boulevard and Federal Highway, extending west to NE 4th Street and Federal Highway, and south to approximately one- half block north of Ocean Avenue. DRAWING(S): SEE EXHIBIT "B" ATTACHED HERETO. THIS MATTER was presented to the City Commission of the City of Boynton Beach, Florida on the date of hearing stated above. The City Commission having considered the approval sought by the applicant and heard testimony from the applicant, members of city administrative staff and the public finds as follows: Application for the approval sought was made by the Applicant in a manner consistent with the requirements of the City's Land Development Regulations. 2. The Applicant X HAS HAS NOT established by substantial competent evidence a basis for the approval requested. 3. The conditions for development requested by the Applicant, administrative staff, or suggested by the public and supported by substantial competent evidence are as set forth on Exhibit "C" with notation "Included." 4. The Applicant's request is hereby X GRANTED subject to the conditions referenced in paragraph 3 above. DENIED 5. This Order shall take effect immediately upon issuance by the City Clerk. 6. All further development on the property shall be made in accordance with the terms and conditions of this order. 7. Other: DATED: City Clerk S:\Planning\SHARED\WP\PROJECTS\The Pierce - 101 N Federal (fka 115 N Federal Hwy)\NWSP 22-004 MPMD 22-005\—Staff Report\Development Order\NWSP 22-004 MPMD 22-005 DO.doc Page 348 of 971 Page 349 of 971 Executive Summary The Pierce will be a mixed-use development featuring an eight -story multifamily building containing 300 luxury residential rental units connected to a parking garage that contains parking for the project's private uses as well as 150 spaces dedicated to the public, so that visitors to the area can park and walk conveniently to the project's restaurants, retail and office attractions. With over 61 % of our project's overall site area accessible by the public, The Pierce ensures enhanced pedestrian connectivity throughout the project. Strategically spanning across the project site, The Pierce contains an assortment of uses that combine to create continual activity and energy. Anchoring the north end of the site on Boynton Beach Blvd will be the new home for Boynton Beach's local mainstay, Hurricane Alley. The site's north end and parking garage will connect along 4th Street where pedestrians will pass by retail space and Dewey Park to make their way to the restaurants and caf6 fronting Ocean Avenue. The "hard corner" on Ocean Ave and Federal Hwy will display a large marine and educational monumental art piece for residents and visitors to enjoy and learn more about Boynton Beach's marine life. The Pierce residences is situated in the center of the site and will function as the nucleus that fuels the project's daytime and nighttime vitality. Residents of The Pierce will experience best -in -class amenities spread throughout the building and grounds. The urban design, abundant amenity offerings and luxury finishes was created to offer an elevated and different living experience from other Boynton Beach apartment options. The Pierce offers something for everyone who wishes to truly embody the live, work, play mantra. 150 of the project's 300 units will be offered at workforce level rates that are attainable to the hard working individuals and families that desire a luxury living experience at an attainable rate. The mixed -income approach fosters a healthy, diverse urban environment, and will help make this area of Boynton Beach a true urban oasis. =PIERCE Project Video F 1-1 E F"", I E R (I',""" E A 1",,l I I'vA A F I C) 1""I Applications • Rezoning from Central Business District (CBD) to Mixed -Use Core (MU -C) • New Master Plan • New Major Site Plan • Abandonments • South Alley • Portion of NE 1st Ave • Portion of North Alley • Four Community Design Appeals for the Parking Garage • Height Exception for the Parking Garage =PIERCE a Rezoning from Central Business District (CBD) to Mixed -Use Core (MU -C) Meets the Criteria in Section 2.D.3 of Chapter 2, Article II of the LDRs: ✓ Demonstration of Need ✓ Consistency with city planning documents ✓ Compatibility with surrounding uses ✓ Orderly Growth ✓ Location Efficiency ✓ Availability of Public Services/Infrastructure ✓ Economic Development Impact ✓ Heavy Commercial and Industrial Land Supply =PIERCE 9 Master Plan & Major Site Plan New Master Plan Meets the Criteria in Section 2.D.6 of Chapter 2, Article II of the LDRS: 1) Zoning and Standards Compliance: complies with the requirements of the respective zoning district regulations and site development standards. 2) Diagrams: submittal includes diagrams which illustrate the location of uses and density on the site. New Major Site Plan Meets the Criteria in Section 2.F of Chapter 2, Article II of the LDRS: 1) The site plan complies with the requirements of the respective zoning district regulations and site development standards. 2) The site plan is consistent with the master plan. 10 New Master Plan &New Major Site Plan The project complies with the location and general use requirements applicable to the Mixed -Use Core district as follows: 1. The future land use classification of the land is mixed use -high (MX -H). 2. The development is a high density/intensity development intended for the downtown area. It includes a mix of uses designed in a compact vertical style. 3. The development fronts on Federal Highway, which is designated as an "arterial" roadway on the Functional Classification of Roadways Map. 11 Four Community Design Appeals • Code Requirement: • Freestanding parking garages are allowed within the Mixed -Use (Urban) Districts provided they do not have frontage on any arterial or collector roadway. • Proposed Design: • Freestanding parking garage that fronts 4t" Street The Code provides for the Community Design Appeal process to allow for flexibility and alternative ways to meet the intent of the Code to yield high quality design, architectural detail, and visual interest without negative impacts to the subject site or surrounding properties. 1 10 '1 Nk. 13 North Garage Elevation • Vertical landscaping at the base • Lush landscape buffer • Large area for projecting movies/sport games as well as public events in open space area between Hurricane Alley and parking structure =PIERCE 1< South Garage Elevation • Decorative metal fencing • Bike -themed mural element • Horizontal projections and overhangs to provide shading over pedestrian walkways • Integrated perforated metal screen wraps from the East side of facade 15 West Garage Elevation • Vertical landscaping elements at the base • "Welcome to Boynton Beach" image integrated into a vertical perforated metal screen 17 Four Community Design Appeals Meets the Criteria in Chapter 2, Article II, Sec. 4.13.3: ✓ Consistency with the Comprehensive Plan ✓ Will not significantly detract from the Livability or Appearance of the city and will be consistent with the established or desired character ✓ Consistency with the Purpose of the standard ✓ Trees or Fauna ✓ Environmental Impacts ✓ Impact on Property Values ✓ Light and Air ✓ Furthers objectives of the City ✓ Other Standards and Requirements W., Height Exception for the Parking Garage Code requirement: Max 75' Feet Proposed: Egress staircase extends to 77' 11" Meets the Criteria in Chapter 2, Article II, Sec. 4.C.3: ✓ Will not adversely affect: 1) light and air; 2) property values; 3) living conditions; or 4) existing or proposed land uses ✓ Would not be a deterrent to development or improvement of adjacent properties ✓ Would contribute to architectural character and form of the project ✓ Would positively contribute to the city's desired image, streetscape design, or recommendation of any applicable redevelopment plan ✓ Would contribute to sustainable development and other green initiatives ✓ Is necessary and not proposed in a manner with which the objective is to maximize project visibility without concern for architectural or aesthetic integrity ✓ Sufficient evidence has been presented to justify the need for a height exception. 19 F111 M, I I THE PIERCE AMENITIES C3 - RETAIL f Fitness center 2 Coworkcollaborafive seating I Bar/Tap Roorn 4 Sports Viewing ilrr I V 5 Wine/S�ar rit Cellar Room 6 BiltiardsShuffell Board!/Darts, 26 P281 30 22 31 132 �36 7 Coffee ao Grab in O Convenience rJ ITT 9 Wine/Sprint Lockers 2 ,.I M 10 Parce[]Package Room with Refrigeration oil 11 Bicycle StorageMike Shop f 12 Ride Share Waiting I V 7r -n - - i 74 Free Bike Sharing 18 IF 'j;;; 1 W, atersports Sharing 4 E_ "1 J 15 Fullness center yogal room L Ftl1 B9 '16 Coworkmicro offices tf 17 Fitness center outdoor crossfil area 18 Wellness room with, infered sauna RI 19 Arcade Games 2 20 Pool with sun shelf 12 21 Pool bar .......... .. 22 Pill Court 311135 23 B'BQ Grill & Outdoor Kitchen 23 2T 24 Covered Outdoor DininglSeating 25 Rooftop Deck �fl At 4 B2 q FM, J f 44 Page 378 of 971 2 0 Al"Ip4l All 26 Hammock Park 27 Pool Cabanas 28 Carne Lawn 29 Dog Park N - TA 1 �Mtl 30 Bocce Ball COLO 23 27 311 Outdoor Gaming Area Pilng Pong, Comhole, ring tol 32 Golf Range Net - ------ 33 14 EV Charging Stations Loading Dock for Move- in s 27' 35 36 Chess(Domino Tables Picniic/Diningi gazebo 37 Car Wash Afea some amenities not pictured �fl At 4 B2 q FM, J f 44 Page 378 of 971 Artin Public Space Art incorporated into prominent public locations • Sculpture of marine inspired theme paying homage to Boynton Beach's main industry • Garage screen on garage west fagade will serve as focal point as you enter The East Boynton Beach District • Requirement - $300,000. Developer will exceed this Requirement *conceptual artistic renderings subject to change =PIERCE 31 E:1r] Public Hearing 2/21/2023 Requested Action by Commission: Approve request for four (4) Community Design Appeals (CDPA 22- 002, 23-006, 23-007, & 23-008) of Chapter 4, Article 111, Section 6.F.2.c, Freestanding Parking Garages, which prohibits freestanding parking garages from having frontage on any arterial or collector roadway, to allow for alternative design solutions for the freestanding parking garage as proposed, for The Pierce mixed- use project in the MU -C (Mixed -Use Core) zoning district. Applicant/Agent: Jeffery Burns, Affiliated Development Explanation of Request: The application submitted for the Community Design Appeal (CDPA 22-002, 23-006, 23-007, 23-008) is pursuant to Chapter 4, Article 111, Section 6.F.2.c, Freestanding Parking Garages of the Land Development Regulations (LDR), which prohibits the freestanding parking garage from fronting an arterial or collector roadway. The strict application of the site design standards for a freestanding parking garage, in this instance, would prohibit the garage from this location due to NE 4th Street's classification as a collector roadway. This would require the developer to provide an integrated parking garage wrapped with permitted habitable floor area. However, due to the orientation and geometry of the site, with Dewey Park located at the southwest corner and the developed commercial properties bordering the eastern and northern property boundaries, providing a freestanding parking garage allowed the applicant to optimize the amount of available usable open space for both the public and private residential amenities. In lieu of providing an integrated parking structure, the applicant proposes alternative architectural facade treatments on each elevation (Exhibit C.1) of the parking garage to ensure that the design would resemble habitable floor areas as well as be compatible with the architectural design of the multi -family residential building. The applicant proposes a combination of the following treatments: window openings with metal framing matching the design of the windows used for the multi -family units, raked stucco, and varying roof height. Staff is requiring, as a condition of this Community Design Appeal and of the requested variance that the applicant install an irrigated green wall or similar treatment on the majority of the east elevation of the garage. The Planning & Development Board recommended APPROVAL of this request during the February 6, 2023 meeting. How will this affect city programs or services? This will not affect the City programs or services. Fiscal Impact: There is no fiscal impact to the budget for this item. Alternatives: Staff has reviewed the requests for the Community Design Appeals and recommends DENIAL based on recommendation of denial for the associated variance request ZNCV 23-002. However, should the City Commission approve the applicant's request for a variance for relief from Part 111, Chapter 4, Article 11, Section 4.B.3.c Urban Landscape Buffer (Type 2); then staff recommends APPROVAL based on the analysis contained herein, contingent upon City Commission approval of concurrent requests for the New Page 381 of 971 Site Plan, New Master Plan, Rezoning, and Abandonment applications, and satisfying all comments indicated in Exhibit D — Conditions of Approval. Any additional conditions recommended by the Board or City Commission shall be documented accordingly in the Exhibit D. Strategic Plan: Strategic Plan Application: N/A Climate Action Application: N/A Is this a grant? Grant Amount: Attachments: Type D Staff IRE)p.:irt D 1.....ocaflioir: li Map r r r r D Diraiwiir:gs D Diraiwiir:gs D Coindliflioir s of Ippirovaill D C:: E)V(.)lk)�PrT1Esir1t f firdE)r Description Staff IRE)p .:ir t Exhibit A 1.....oca bola li Map 1:: xh: ilbif Il: 1 Appicaint Jl UlStiflicaflioin Sfa tEf irm'I:f (North Il:::::. E)Va1tlk)1[':) 1:: xh: ilbif II: 2 Appicaint J UlStiflicaflioin Sfa tE)irT1asiraf (East IC:::::.Ila)Va:1flk)1['1) 1:: xh: ilbif 11::x.3 Appicaint J UlStiflicaflioin Sfa tEf irm'I of (SOLAth IC:::::.Ila)Va:1flk)1[':) C:: xh: ilbif IC: ppica int J UlStiflicaflioin Sfa tE)irT1asiraf (V'VE)St IC:::::. E)Va1tlk)1['1) C:: xh: ilbif C.. f Flairlkiir g (::)airagE) IC:::::. E)Va1tlk)1['1S C:: xh: ilbif C.2 Silas Rain air:d Silas IDa to Exhibit ID Coindliflioirs of Ippirovaill C: E)V(.)llo prT1asir:f f firdE)r Page 382 of 971 DEVELOPMENT DEPARTMENT PLANNING AND ZONING DIVISION MEMORANDUM NO. PZ 23-011 STAFF REPORT TO: Chair and Members Planning and Development Board THRU: Amanda B. Radigan, AICP, LEED AP Planning and Zoning Director ,Acle FROM: Craig Pinder, Planner II DATE: January 18, 2023 PROJECT NAME: The Pierce (CDPA 22-002, 23-006, 23-007, & 23-008) REQUEST: Approval of four (4) Community Design Appeal requests (CDPA 22-002, 23-006, 23-007, & 23-008) for Chapter 4, Article III, Section 6.F.2.c, Freestanding Parking Garages, prohibiting freestanding parking garages from having frontage on any arterial or collector roadway, to allow for alternative design solutions for the freestanding parking garage as proposed. Property Owner: Boynton Beach CRA, BB QOZ LLC, & City of Boynton Beach Applicant: BB QOZ, LLC Agent: Rebecca Zissel/Sachs Sax Caplan, P.L. Location: Generally located at northwest corner of Ocean Avenue and Federal Highway, extending north to Boynton Beach Boulevard and Federal Highway, extending west to NE 4th Street and Federal Highway, and south to approximately one- half block north of Ocean Avenue (Exhibit A). Site Details: The applicant has submitted development applications for a Rezoning, New Major Site Plan, and Master Plan, four (4) Community Design Appeals, one Height Exception, and three (3) Abandonments for a mixed-use project known as The Pierce, which proposes an eight -story mixed-use building with 300 multi- family units, approximately 17,089 square feet of commercial space, recreational amenities, parking, and other related site improvements. The total area of the subject properties is 3.04 acres. BACKGROUND AND ANALYSIS The application submitted for the Community Design Appeal (CDPA 22-002, 23-006, 23-007, 23- 008) is pursuant to Chapter 4, Article III, Section 6.F.2.c, Freestanding Parking Garages of the Land Development Regulations (LDR), which prohibits the freestanding parking garage from fronting an arterial or collector roadway. Page 383 of 971 The Pierce (CDPA 22-002, 23-006, 23-007, 23-008) Memorandum No PZ 23-011 Page 2 Any deviation from the exterior building and site design standards is subject to review and approval by the City Commission. As described, the freestanding parking garage is proposed to front NE 4t" Street, classified as a collector roadway in the Comprehensive Plan of the City of Boynton Beach, and accordingly, is the subject of this appeal request. The applicant has submitted a Justification Statement for each elevation of the parking garage (Exhibits B.1, B.2, B.3, & B.4) addressing each of the following review criteria - a) Whether the proposed request will demonstrate consistency with the Comprehensive Plan; b) Whether the proposed request will not significantly detract from the livability or appearance of the city and will be consistent with the established or desired character of the area, or with the redevelopment plan, where applicable; c) On balance, whether the proposed request will be consistent with the purpose of the standard for which a deviation is requested. Granting the request will equally or better meet the purpose of the standard to be appealed; d) Whether the proposed request is intended to save or preserve existing trees or desired flora; e) Whether the proposed request will have adverse environmental impacts that cannot be prevented by the imposition of conditions; fl Whether the proposed request will have an adverse impact on property values of abutting or adjacent land; g) Whether the proposed request will seriously reduce the quality or quantity of light and air available to adjacent properties; h) Whether the proposed request is necessary to further the objectives of the City to assist with economic development and business promotion; and i) Whether the proposed request meets the purpose and intent of these regulations but conflicts with another site development standard or requirement, including sustainable development and green initiatives. The proposed building site totals 3.04 acres, with developed commercial properties to the north and Boynton Beach Boulevard, developed commercial properties to the northeast, Federal Highway to the east, Dewey Park to the southwest, Ocean Avenue to the south and further south a multi -family development AKA 500 Ocean, NE 4t" Street to the west, and further west undeveloped property anticipated to be the future site for the Coastal Link Commuter Station. The proposed mixed-use development is comprised of four (4) structures including two (2) 2 - story restaurants, an eight -floor mixed-use building with the commercial spaces on the ground floor and 300 multi -family units on all levels, one eight -floor freestanding parking garage, and private recreational amenities on the ground floor. As shown on the architectural site plan (Exhibit C.2), the proposed freestanding parking garage is not wrapped with habitable floor area on any elevation, and all elevations are visible from the streets surrounding the site. The strict application of the site design standards for a freestanding parking garage, in this instance, would prohibit the garage from this location due to NE 4t" Street's classification as a collector roadway. This would require the developer to provide an integrated parking garage wrapped with permitted habitable floor area. However, due to the orientation and geometry of the site, with Dewey Park located at the southwest corner and the developed commercial S.\Planning\SHARED\WP\PROJECTS\The Pierce - 101 N Federal (fka 115 N Federal Hwy)\HTEX 23-001, CDPA 22-002, 23-006, 23-007, 23-008\CDPA 22-002 23-006 23-007 23-008_Staff Report _Flnal.docx Page 384 of 971 The Pierce (CDPA 22-002, 23-006, 23-007, 23-008) Memorandum No PZ 23-011 Page 3 properties bordering the eastern and northern property boundaries, providing a freestanding parking garage allowed the applicant to optimize the amount of available usable open space for both the public and private residential amenities. Furthermore, pursuant to Part III, Chapter 4, Article VIII, Section 4.b.1 of the Land Development Regulations, the width of NE 4t" Street post land dedication meets the width of a local street (50') rather than a collector street (80'). Therefore, the applicant is proposing the freestanding parking garage to front NE 4t" Street and provide in/egress along the street. In lieu of providing an integrated parking structure, the applicant proposes alternative architectural facade treatments on each elevation (Exhibit C.1) of the parking garage to ensure that the design would resemble habitable floor areas as well as be compatible with the architectural design of the multi -family residential building. The applicant proposes the following treatments for each elevation - North Elevation - The north elevation will incorporate the following architectural design features - window openings with metal framing matching the design of the windows used for the multi- family units, raked stucco, varying roof height, a blank area on the wall to serve as a plane for movie night projections, and vertical landscaping at the base with trees at varying heights to further screen the north elevation-, East Elevation — The east elevation will feature raked stucco, metal window framing (no openings) matching the design of the windows used for the multi -family units, planter boxes with bougainvillea plants on levels two (2) and three (3), vertical landscaping at the base with trees at varying heights to further screen the east elevation. The landscape scheme provided on the east elevation represents a modified urban landscape buffer type 2, which the applicant has submitted a relief application requesting a variance (ZNCV 23-002) to the standards of the urban landscape buffer type 2. Finally, Staff is requiring, as a condition of this Community Design Appeal and of the requested variance that the applicant install an irrigated green wall or similar treatment (Exhibit D — Conditions of Approval). South Elevation — The south elevation will include window openings with metal framing matching the design of the windows used for the multi -family units, raked stucco, accent banding, a portion of the perforated metal screen with a mural design wrapped around the southwest corner of the building from the west elevation extending from the second floor to the top floor level, and a bike and city map themed mural on the ground floor at the southwest corner; West Elevation — The west elevation will include a perforated metal screen extending from the second -floor level to the top floor with a mural and "Welcome to Boynton Beach", bike and city map themed mural, vine screens, a replica of the Harvey E Oyer Jr. Real Estate mural on the ground level, window openings with metal framing matching the design of the windows used for the multi -family units, raked scoring, and accent banding. S.\Planning\SHARED\WP\PROJECTS\The Pierce - 101 N Federal (fka 115 N Federal Hwy)\HTEX 23-001, CDPA 22-002, 23-006, 23-007, 23-008\CDPA 22-002 23-006 23-007 23-008_Staff Report _Flnal.docx Page 385 of 971 The Pierce (CDPA 22-002, 23-006, 23-007, 23-008) Memorandum No PZ 23-011 Page 4 These proposed architectural features and landscape material will allow the parking garage elevations to appear as habitable spaces and remain consistent with the architectural design of the multi -family building. RECOMMENDATION Staff has reviewed the requests for the Community Design Appeals and recommends DENIAL based on recommendation of denial for the associated variance request ZNCV 23-002. However, should the City Commission approve the applicant's request for a variance for relief from Part III, Chapter 4, Article II, Section 4.B.3.c Urban Landscape Buffer (Type 2); then staff recommends APPROVAL based on the analysis contained herein, contingent upon City Commission approval of concurrent requests for the New Site Plan, New Master Plan, Rezoning, and Abandonment applications, and satisfying all comments indicated in Exhibit D — Conditions of Approval. Any additional conditions recommended by the Board or City Commission shall be documented accordingly in the Exhibit D. S.\Planning\SHARED\WP\PROJECTS\The Pierce - 101 N Federal (fka 115 N Federal Hwy)\HTEX 23-001, CDPA 22-002, 23-006, 23-007, 23-008\CDPA 22-002 23-006 23-007 23-008_Staff Report _Flnal.docx Page 386 of 971 Page 387 of 971 Exhibit BA r° a g e I 1 Project Narrative- The Pierce, Community Design Appeal, North Elevation This application for Community Design Appeal for the North Elevation of the parking garage is submitted on behalf of BB QOZ, LLC (the "Applicant") pursuant to Section 4.13 of the Boynton Beach, FL Code of Ordinances, Part III Land Development Regulations (the "Land Development Regulations") Chapter 2, Article II. Applications for Rezoning, New Master Plan, New Major Site Plan, Abandonments, Height Exception, and additional Community Design Appeals for the other three elevations of the parking garage are being submitted concurrently. Specifically, the request is for a deviation from Section 6.17 S.2.c of Chapter 4, Article III ("Exterior Building and Site Design Standards") of the Land Development Regulations. This appeal is being requested for processing concurrent with the New Major Site Plan Application for The Pierce. The Code provides for the Community Design Appeal process to allow for flexibility and alternative ways to meet the intent of the Code to yield high quality design, architectural detail, and visual interest without negative impacts to the subject site or surrounding properties. As shown in the plans submitted for site plan approval, the proposed design complies with this standard. Section 6.F.2.c states that freestanding parking garages are allowed within the Mixed -Use (Urban) Districts provided they do not have frontage on any arterial or collector roadway. It also states that parking garages that front on arterial or collector roadways must be integrated into the development and designed as provided for in Section 6.F.2.d. Based on the traffic engineer's read of the definitions of arterial and collector roadways in the Land Development Regulations, Applicant originally thought that 4th Street would not be classified as an arterial or collector roadway. Accordingly, the design contained a freestanding parking garage. Since 4th Street does in fact qualify as an arterial or collector roadway, Applicant is submitting this application for a Community Design Appeal. The intent of the affected standard is to soften the impact of the garage and provide for continuity in street -level activity. The proposed design meets this intent due to the screening and facade treatment provided as well as the provision a public bike share station component to the 4th street frontage. The design is compatible with the architecture of the adjacent structures within the development. Vertical landscaping at the base will be used to soften the impact and improve the appearance. There will also be a lush landscape buffer. The design of the windows and the color tones will match the multi -family building. There will be a large area to serve as a spot for projecting movie nights as well as public events in the open space area in between Hurricane Alley and the parking structure. As described above, the proposed design would not diminish the practical application of the affected standard. Accordingly, an acceptable design will result. Page 388 of 971 The Pierce- Community Design Appeal, North Elevation A. Consistency With the Comprehensive Plan r'u a g e 12 The Future Land Use Designation of the property is Mixed -Use High (MXH), and the proposed use is consistent with an MXH designation. MXH is intended to provide for vertical or horizontal mixing of land uses within a single site in order to allow development and redevelopment in specific geographic areas of the City that take maximum advantage of existing utility systems and services; promote compact development, safe and pedestrian -friendly streets, and transportation choices. As this property is located East of I-95, the Comprehensive Plan specifically contemplates a high-density residential development. Accordingly, the proposed project is consistent with the Comprehensive Plan in that it is a high-density residential development. The proposed request is also consistent with various objectives and policies in the Future Land Use Element of the Comprehensive Plan, including but not limited to the following: - Comprehensive Plan, Future Land Use Element, Objective 1.8: This is a compact project that promotes a compact urban development pattern and discourages sprawl. - Comprehensive Plan, Future Land Use Element, Policy 1.11.1: Provides multi -family rental housing for a broad range of income groups. - Comprehensive Plan, Future Land Use Element, Objective 1.12 and Policy 1.12.1: Provides workforce housing to maintain a diversified and sustainable City having character and sense of community where people can live and work in the same area. B. Livability, Appearance, Character The proposed request will not significantly detract from the livability or appearance of the city and will be consistent with the established or desired character of the area, or with the redevelopment plan, where applicable. C. Consistency with the Purpose of the Standard The proposed request will be consistent with the purpose of the standard for which a deviation is requested. Granting the request will equally or better meet the purpose of the standard to be appealed. The proposed design has elements that soften the garage and integrate it into the development. The intent of the requirement is to integrate the garage into the development to minimize the visual impact of the garage. Although not fully connected, the garage has a number of features that tie it in to the development. On the North elevation, these features include window openings that match the multi -family building. Accent banding, exterior material colors that also match the multi- family building D. Trees or Fauna A robust landscape buffer with hedges, groundcover and large palm trees lines the entire north facade. Page 389 of 971 The Pierce- Community Design Appeal, North Elevation F'u a g e 13 E. Environmental Impacts The proposed request will not have adverse environmental impacts. To the contrary, it will have positive environmental impacts by allowing for the proposed development, which has a number of environmentally friendly features, including open space that exceeds the minimum for the development by over 30%. An enclosed parking structure minimizes negative impact of street parking spaces and the entire facade conceals the appearance of vehicles completely. An entirely white exterior facade helps to reduce heat island impacts. Heat island impact is reduced as well by utilizing structured parking, rather than surface parking. F. Impact on Property Values The proposed request will not have an adverse impact on property values of abutting or adjacent land. In fact, we expect it to positively impact property values by housing over 400 new residents with disposable incomes to help support nearby businesses. The Pierce will add 300 apartment units with state-of-the-art amenities, secure resident parking, interactive public spaces, restaurant, retail and office use including public parking. The Pierce will create a new live -work -play destination in East Boynton Beach, and by helping catalyze the area, will significantly increase property values. Hurricane Alley will be relocated to the SE corner of E Boynton Beach Blvd and NE 4 1 Street which will offer outdoor seating and dynamic public outdoor space which activates the corner of the street and helps anchor the development along Boynton Beach Boulevard. This mainstay business will positively impact property values by legitimizing Boynton Beach Boulevard as a main commercial corridor G. Light and Air The proposed request will not seriously reduce the quality or quantity of light and air available to adjacent properties. The building is naturally ventilated, allowing for air to flow freely through it. Light is minimally impacted as the garage is oriented east -west, and the majority of daytime shadow will be cast internally onto the development itself rather than adjacent properties. H. Objectives of the City Local Spending/Economic Development: The Pierce is adding 300 new households to the community and over 17,000 SF of restaurant/retail/office space which will greatly contribute to the local area spending, business development and investment. Our resident population is comprised of mostly young professionals whose households generate $30K per year in local spending. New residents provide a new client base with disposable income for existing merchants and businesses. The Pierce brings in private investments, benefitting local consultants, workers and tradesman. The addition of a new building will cause landlords to invest Page 390 of 971 The Pierce- Community Design Appeal, North Elevation F'u a g e 14 their resources in improving their properties and create the potential for redevelopment of nearby commercial properties in order to keep pace. Workforce Housing: The Pierce is the first luxury apartment building constructed in east Boynton Beach with Class A features and amenities at an attainable price -point for the City's workforce. As a mixed -income housing development, all tenants will benefit from the same luxury finishes and amenities, regardless of income. The restricted units will be split into tiers where 3.8% of the total units are rented to tenants that earn between 60%-80% of the AMI; 23.1% rented to tenants that earn between 80%-100% of the AMI; 23.1% rented to tenants that earn between 100%-120% of the AMI; and the remaining total rental units being unrestricted. A portion of the units will maintain affordability into perpetuity. Public Parking: The developer has entered into an agreement with the CRA to provide 150 parking spaces located in the Parking Garage for the use by the general public for enhancement of the downtown in furtherance of the CRA's 2016 Community Redevelopment Plan. Relocation of Existing Businesses (Hurricane Alley): Hurricane Alley restaurant and bar will be relocated to a new 4,500SF building along Boynton Beach Boulevard. This agreement between the developer and the restaurant owner ensures the longevity of this institution and maintains jobs for its employees. Hurricane Alley will front one of Boynton Beach's primary commercial corridors and serve as an anchor to the development establishing a vibrant presence on the north edge of the property. Creation of New Tax Base: The project will be constructed on underutilized and largely vacant property, which creates very little property tax generation to the City. The investment will create a substantial amount of new tax revenue for the City. L Other Standards and Requirements The proposed request does not present any conflicts with other site development standards and requirements. The development will meet the sustainability criteria, as described in the Master Plan and Site Plan narratives. Page 391 of 971 Exhibit B.2 r° a g e i 1 Project Narrative- The Pierce, Community Design Appeal, East Elevation This application for Community Design Appeal for the East Elevation of the parking garage is submitted on behalf of BB QOZ, LLC (the "Applicant") pursuant to Section 4.13 of the Boynton Beach, FL Code of Ordinances, Part III Land Development Regulations (the "Land Development Regulations") Chapter 2, Article II. Applications for Rezoning, New Master Plan, New Major Site Plan, Abandonments, Height Exception, and additional Community Design Appeals for the other three elevations of the parking garage are being submitted concurrently. Specifically, the request is for a deviation from Section 6.17 S.2.c of Chapter 4, Article III ("Exterior Building and Site Design Standards") of the Land Development Regulations. This appeal is being requested for processing concurrent with the New Major Site Plan Application for The Pierce. The Code provides for the Community Design Appeal process to allow for flexibility and alternative ways to meet the intent of the Code to yield high quality design, architectural detail, and visual interest without negative impacts to the subject site or surrounding properties. As shown in the plans submitted for site plan approval, the proposed design complies with this standard. Section 6.F.2.c states that freestanding parking garages are allowed within the Mixed -Use (Urban) Districts provided they do not have frontage on any arterial or collector roadway. It also states that parking garages that front on arterial or collector roadways must be integrated into the development and designed as provided for in Section 6.F.2.d. Based on the traffic engineer's read of the definitions of arterial and collector roadways in the Land Development Regulations, Applicant originally thought that 4th Street would not be classified as an arterial or collector roadway. Accordingly, the design contained a freestanding parking garage. Since 4th Street does in fact qualify as an arterial or collector roadway, Applicant is submitting this application for a Community Design Appeal. The intent of the affected standard is to soften the impact of the garage and provide for continuity in street -level activity. The proposed design meets this intent due to the screening and facade treatment provided as well as the provision of a public bike share station component to the 4th street frontage. The design is compatible with the architecture of the adjacent structures within the development. Vertical landscaping at the base will be used to soften the impact and improve the appearance. The color tones will match the multi -family building. Despite not having openings on this elevation, the same window trims, and stucco treatments will be applied so that the appearance matches the rest of the facade. As described above, the proposed design would not diminish the practical application of the affected standard. Accordingly, an acceptable design will result. Page 392 of 971 The Pierce- Community Design Appeal, East Elevation A. Consistency With the Comprehensive Plan r'u a g e 12 The Future Land Use Designation of the property is Mixed -Use High (MXH), and the proposed use is consistent with an MXH designation. MXH is intended to provide for vertical or horizontal mixing of land uses within a single site in order to allow development and redevelopment in specific geographic areas of the City that take maximum advantage of existing utility systems and services; promote compact development, safe and pedestrian -friendly streets, and transportation choices. As this property is located East of I-95, the Comprehensive Plan specifically contemplates a high-density residential development. Accordingly, the proposed project is consistent with the Comprehensive Plan in that it is a high-density residential development. The proposed request is also consistent with various objectives and policies in the Future Land Use Element of the Comprehensive Plan, including but not limited to the following: - Comprehensive Plan, Future Land Use Element, Objective 1.8: This is a compact project that promotes a compact urban development pattern and discourages sprawl. - Comprehensive Plan, Future Land Use Element, Policy 1.11.1: Provides multi -family rental housing for a broad range of income groups. - Comprehensive Plan, Future Land Use Element, Objective 1.12 and Policy 1.12.1: Provides workforce housing to maintain a diversified and sustainable City having character and sense of community where people can live and work in the same area. B. Livability, Appearance, Character The proposed request will not significantly detract from the livability or appearance of the city and will be consistent with the established or desired character of the area, or with the redevelopment plan, where applicable. C. Consistency with the Purpose of the Standard The proposed request will be consistent with the purpose of the standard for which a deviation is requested. Granting the request will equally or better meet the purpose of the standard to be appealed. The proposed design has elements that soften the garage and integrate it into the development. The intent of the requirement is to integrate the garage into the development to minimize the visual impact of the garage. Although not fully connected, the garage has a number of features that tie it in to the development. On the East elevation, these features include window openings that match the multi -family building. Accent banding, exterior material colors that also match the multi- family building D. Trees or Fauna A modified urban landscape buffer has been applied to this facade, including continuous hedges, tall palm and cocoplum trees spaced at approximately 10'-0" on center. The first three levels of Page 393 of 971 The Pierce- Community Design Appeal, East Elevation F'u a g e 13 the east facade will also incorporate a green treatment in the form of planter boxes with lush bougainvillea with an integrated drip irrigation system to maintain longevity of the proposed fauna. E. Environmental Impacts The proposed request will not have adverse environmental impacts. To the contrary, it will have positive environmental impacts by allowing for the proposed development, which has a number of environmentally friendly features, including open space that exceeds the minimum for the development by over 30%. An enclosed parking structure minimizes negative impact of street parking spaces and the entire facade conceals the appearance of vehicles completely. An entirely white exterior facade helps to reduce heat island impacts. Heat island impact is reduced as well by utilizing structured parking, rather than surface parking. F. Impact on Property Values The proposed request will not have an adverse impact on property values of abutting or adjacent land. In fact, we expect it to positively impact property values by housing over 400 new residents with disposable incomes to help support nearby businesses. The Pierce will add 300 apartment units with state-of-the-art amenities, secure resident parking, interactive public spaces, restaurant, retail and office use including public parking. The Pierce will create a new live -work -play destination in East Boynton Beach, and by helping catalyze the area, will significantly increase property values. Hurricane Alley will be relocated to the SE corner of E Boynton Beach Blvd and NE 4 1 Street which will offer outdoor seating and dynamic public outdoor space which activates the corner of the street and helps anchor the development along Boynton Beach Boulevard. This mainstay business will positively impact property values by legitimizing Boynton Beach Boulevard as a main commercial corridor G. Light and Air The proposed request will not seriously reduce the quality or quantity of light and air available to adjacent properties. The building is naturally ventilated, allowing for air to flow freely through it. Light is minimally impacted as the garage is oriented east -west, and the majority of daytime shadow will be cast internally onto the development itself rather than adjacent properties. H. Objectives of the City Local Spending/Economic Development: The Pierce is adding 300 new households to the community and over 17,000 SF of restaurant/retail/office space which will greatly contribute to the local area spending, business development and investment. Our resident population is comprised of mostly young professionals whose households generate $30K per year in local spending. New residents provide a new client base with disposable income Page 394 of 971 The Pierce- Community Design Appeal, East Elevation F'u a g e 14 for existing merchants and businesses. The Pierce brings in private investments, benefitting local consultants, workers and tradesman. The addition of a new building will cause landlords to invest their resources in improving their properties and create the potential for redevelopment of nearby commercial properties in order to keep pace. Workforce Housing: The Pierce is the first luxury apartment building constructed in east Boynton Beach with Class A features and amenities at an attainable price -point for the City's workforce. As a mixed -income housing development, all tenants will benefit from the same luxury finishes and amenities, regardless of income. The restricted units will be split into tiers where 3.8% of the total units are rented to tenants that earn between 60%-80% of the AMI; 23.1% rented to tenants that earn between 80%-100% of the AMI; 23.1% rented to tenants that earn between 100%-120% of the AMI; and the remaining total rental units being unrestricted. A portion of the units will maintain affordability into perpetuity. Public Parking: The developer has entered into an agreement with the CRA to provide 150 parking spaces located in the Parking Garage for the use by the general public for enhancement of the downtown in furtherance of the CRA's 2016 Community Redevelopment Plan. Relocation of Existing Businesses (Hurricane Alley): Hurricane Alley restaurant and bar will be relocated to a new 4,500 SF building along Boynton Beach Boulevard. This agreement between the developer and the restaurant owner ensures the longevity of this institution and maintains jobs for its employees. Hurricane Alley will front one of Boynton Beach's primary commercial corridors and serve as an anchor to the development establishing a vibrant presence on the north edge of the property. Creation of New Tax Base: The project will be constructed on underutilized and largely vacant property, which creates very little property tax generation to the City. The investment will create a substantial amount of new tax revenue for the City. L Other Standards and Requirements The proposed request does not present any conflicts with other site development standards and requirements. The development will meet the sustainability criteria, as described in the Master Plan and Site Plan narratives. Page 395 of 971 Exhibit B.3 Project Narrative- The Pierce, Community Design Appeal, South Elevation This application for Community Design Appeal for the South Elevation of the parking garage is submitted on behalf of BB QOZ, LLC (the "Applicant") pursuant to Section 4.13 of the Boynton Beach, FL Code of Ordinances, Part III Land Development Regulations (the "Land Development Regulations") Chapter 2, Article II. Applications for Rezoning, New Master Plan, New Major Site Plan, Abandonments, Height Exception, and additional Community Design Appeals for the other three elevations of the parking garage are being submitted concurrently. Specifically, the request is for a deviation from Section 6.17 S.2.c of Chapter 4, Article III ("Exterior Building and Site Design Standards") of the Land Development Regulations. This appeal is being requested for processing concurrent with the New Major Site Plan Application for The Pierce. The Code provides for the Community Design Appeal process to allow for flexibility and alternative ways to meet the intent of the Code to yield high quality design, architectural detail, and visual interest without negative impacts to the subject site or surrounding properties. As shown in the plans submitted for site plan approval, the proposed design complies with this standard. Section 6.F.2.c states that freestanding parking garages are allowed within the Mixed -Use (Urban) Districts provided they do not have frontage on any arterial or collector roadway. It also states that parking garages that front on arterial or collector roadways must be integrated into the development and designed as provided for in Section 6.F.2.d. Based on the traffic engineer's read of the definitions of arterial and collector roadways in the Land Development Regulations, Applicant originally thought that 4th Street would not be classified as an arterial or collector roadway. Accordingly, the design contained a freestanding parking garage. Since 4th Street does in fact qualify as an arterial or collector roadway, Applicant is submitting this application for a Community Design Appeal. As described above, the proposed design would not diminish the practical application of the affected standard. Accordingly, an acceptable design will result. A. Consistency With the Comprehensive Plan The Future Land Use Designation of the property is Mixed -Use High (MXH), and the proposed use is consistent with an MXH designation. MXH is intended to provide for vertical or horizontal mixing of land uses within a single site in order to allow development and redevelopment in specific geographic areas of the City that take maximum advantage of existing utility systems and services; promote compact development, safe and pedestrian -friendly streets, and transportation choices. As this property is located East of I-95, the Comprehensive Plan specifically contemplates a high-density residential development. Accordingly, the proposed project is consistent with the Comprehensive Plan in that it is a high-density residential development. The proposed request is also consistent with various objectives and policies in the Future Land Use Element of the Comprehensive Plan, including but not limited to the following: Page 396 of 971 The Pierce- Community Design Appeal, South Elevation u'�i&c 12 - Comprehensive Plan, Future Land Use Element, Objective 1.8: This is a compact project that promotes a compact urban development pattern and discourages sprawl. - Comprehensive Plan, Future Land Use Element, Policy 1.11.1: Provides multi -family rental housing for a broad range of income groups. - Comprehensive Plan, Future Land Use Element, Objective 1.12 and Policy 1.12.1: Provides workforce housing to maintain a diversified and sustainable City having character and sense of community where people can live and work in the same area. B. Livability, Appearance, Character The proposed request will not significantly detract from the livability or appearance of the city and will be consistent with the established or desired character of the area, or with the redevelopment plan, where applicable. C. Consistency with the Purpose of the Standard The proposed request will be consistent with the purpose of the standard for which a deviation is requested. Granting the request will equally or better meet the purpose of the standard to be appealed. The proposed design has elements that soften the garage and integrate it into the development through architectural enhancement and high-quality exterior materials The intent of the requirement is to integrate the garage into the development to minimize the visual impact of the garage. Although not fully connected, the garage has a number of features that tie it in to the development. On the South elevation, these features include window openings that match the multi -family building. Accent banding, exterior material colors that also match the multi- family building D. Trees or Fauna There is no proposed landscape along the South facade as it faces an internal loading courtyard. E. Environmental Impacts The proposed request will not have adverse environmental impacts. To the contrary, it will have positive environmental impacts by allowing for the proposed development, which has a number of environmentally friendly features, including open space that exceeds the minimum for the development by over 30%. An enclosed parking structure minimizes negative impact of street parking spaces and the entire facade conceals the appearance of vehicles completely. An entirely white exterior facade helps to reduce heat island impacts. Heat island impact is reduced as well by utilizing structured parking, rather than surface parking. F. Impact on Property Values The proposed request will not have an adverse impact on property values of abutting or adjacent land. In fact, we expect it to positively impact property values by housing over 400 new residents Page 397 of 971 The Pierce- Community Design Appeal, South Elevation i�" �i " c 13 with disposable incomes to help support nearby businesses. The Pierce will add 300 apartment units with state-of-the-art amenities, secure resident parking, interactive public spaces, restaurant, retail and office use including public parking. The Pierce will create a new live -work -play destination in East Boynton Beach, and by helping catalyze the area, will significantly increase property values. Hurricane Alley will be relocated to the SE corner of E Boynton Beach Blvd and NE 4 I Street which will offer outdoor seating and dynamic public outdoor space which activates the corner of the street and helps anchor the development along Boynton Beach Boulevard. This mainstay business will positively impact property values by legitimizing Boynton Beach Boulevard as a main commercial corridor G. Light and Air The proposed request will not seriously reduce the quality or quantity of light and air available to adjacent properties. The building is naturally ventilated, allowing for air to flow freely through it. Light is minimally impacted as the garage is oriented east -west, and the majority of daytime shadow will be cast internally onto the development itself rather than adjacent properties. Objectives of the City Local Spending/Economic Development The Pierce is adding 300 new households to the community and over 17,000 SF of restaurant/retail/office space which will greatly contribute to the local area spending, business development and investment. Our resident population is comprised of mostly young professionals whose households generate $30K per year in local spending. New residents provide a new client base with disposable income for existing merchants and businesses. The Pierce brings in private investments, benefitting local consultants, workers and tradesman. The addition of a new building will cause landlords to invest their resources in improving their properties and create the potential for redevelopment of nearby commercial properties in order to keep pace. Workforce Housing: The Pierce is the first luxury apartment building constructed in east Boynton Beach with Class A features and amenities at an attainable price -point for the City's workforce. As a mixed -income housing development, all tenants will benefit from the same luxury finishes and amenities, regardless of income. The restricted units will be split into tiers where 3.8% of the total units are rented to tenants that earn between 60%- 80% of the AMI; 23.1% rented to tenants that earn between 80%- 100% of the AMI; 23.1% rented to tenants that earn between 100%-120% of the AMI; and the remaining total rental units being unrestricted. A portion of the units will maintain affordability into perpetuity. Public Parking Page 398 of 971 The Pierce- Community Design Appeal, South Elevation i�" �i " c 14 The developer has entered into an agreement with the CRA to provide 150 parking spaces located in the Parking Garage for the use by the general public for enhancement of the downtown in furtherance of the CRA's 2016 Community Redevelopment Plan. Relocation of Existing Businesses (Hurricane Alley) Hurricane Alley restaurant and bar will be relocated to a new 4,500SF building along Boynton Beach Boulevard. This agreement between the developer and the restaurant owner ensures the longevity of this institution and maintains jobs for its employees. Hurricane Alley will front one of Boynton Beach's primary commercial corridors and serve as an anchor to the development establishing a vibrant presence on the north edge of the property. Creation of New Tax Base: The project will be constructed on underutilized and largely vacant property, which creates very little property tax generation to the City. The investment will create a substantial amount of new tax revenue for the City. H. Other Standards and Requirements The proposed request does not present any conflicts with other site development standards and requirements. The development will meet the sustainability criteria, as described in the Master Plan and Site Plan narratives. Page 399 of 971 Exhibit B.4 ° I Project Narrative- The Pierce, Community Design Appeal, West Elevation This application for Community Design Appeal for the West Elevation of the parking garage is submitted on behalf of BB QOZ, LLC (the "Applicant") pursuant to Section 4.13 of the Boynton Beach, FL Code of Ordinances, Part III Land Development Regulations (the "Land Development Regulations") Chapter 2, Article II. Applications for Rezoning, New Master Plan, New Major Site Plan, Abandonments, Height Exception, and additional Community Design Appeals for the other three elevations of the parking garage are being submitted concurrently. Specifically, the request is for a deviation from Section 6.17 S.2.c of Chapter 4, Article III ("Exterior Building and Site Design Standards") of the Land Development Regulations. This appeal is being requested for processing concurrent with the New Major Site Plan Application for The Pierce. The Code provides for the Community Design Appeal process to allow for flexibility and alternative ways to meet the intent of the Code to yield high quality design, architectural detail, and visual interest without negative impacts to the subject site or surrounding properties. As shown in the plans submitted for site plan approval, the proposed design complies with this standard. Section 6.F.2.c states that freestanding parking garages are allowed within the Mixed -Use (Urban) Districts provided they do not have frontage on any arterial or collector roadway. It also states that parking garages that front on arterial or collector roadways must be integrated into the development and designed as provided for in Section 6.F.2.d. Based on the traffic engineer's read of the definitions of arterial and collector roadways in the Land Development Regulations, Applicant originally thought that 4th Street would not be classified as an arterial or collector roadway. Accordingly, the design contained a freestanding parking garage. Since 4th Street does in fact qualify as an arterial or collector roadway, Applicant is submitting this application for a Community Design Appeal. The intent of the affected standard is to soften the impact of the garage and provide for continuity in street -level activity. The proposed design meets this intent due to the screening and facade treatment provided as well as the provision of a public bike share station component to the 4th street frontage. The design is compatible with the architecture of the adjacent structures within the development. The base of the parking garage will have a bike -themed and city map mural element at the base, along with decorative metal fencing. Additionally, on the South elevation, there will be horizontal projections and overhangs on the second floor to provide shading over a portion of the pedestrian walkways. On the primary corners of the parking garage, there will be a vertical perforated metal screen with a "Welcome to Boynton Beach" image that is integrated within the screen element. The screen will also have imagery of sailfish to match the City crest. This goes all the way up from the second floor of the building to mimic the corner projections on the multi -family building. The sign will serve as a landmark and placemaking tool for visitors as they enter the City. An artist will also recreate the existing historic Harvey E. Oyer Insurance sign at ground level. Page 400 of 971 The Pierce- Community Design Appeal, West Elevation i�" �i " c 12 As described above, the proposed design would not diminish the practical application of the affected standard. Accordingly, an acceptable design will result. A. Consistency With the Comprehensive Plan The Future Land Use Designation of the property is Mixed -Use High (MXH), and the proposed use is consistent with an MXH designation. MXH is intended to provide for vertical or horizontal mixing of land uses within a single site in order to allow development and redevelopment in specific geographic areas of the City that take maximum advantage of existing utility systems and services; promote compact development, safe and pedestrian -friendly streets, and transportation choices. As this property is located East of I-95, the Comprehensive Plan specifically contemplates a high-density residential development. Accordingly, the proposed project is consistent with the Comprehensive Plan in that it is a high-density residential development. The proposed request is also consistent with various objectives and policies in the Future Land Use Element of the Comprehensive Plan, including but not limited to the following: - Comprehensive Plan, Future Land Use Element, Objective 1.8: This is a compact project that promotes a compact urban development pattern and discourages sprawl. - Comprehensive Plan, Future Land Use Element, Policy 1.11.1: Provides multi -family rental housing for a broad range of income groups. - Comprehensive Plan, Future Land Use Element, Objective 1.12 and Policy 1.12.1: Provides workforce housing to maintain a diversified and sustainable City having character and sense of community where people can live and work in the same area. B. Livability, Appearance, Character The proposed request will not significantly detract from the livability or appearance of the city and will be consistent with the established or desired character of the area, or with the redevelopment plan, where applicable. C. Consistency with the Purpose of the Standard The proposed request will be consistent with the purpose of the standard for which a deviation is requested. Granting the request will equally or better meet the purpose of the standard to be appealed. The proposed design has elements that soften the garage and integrate it into the development. The intent of the requirement is to integrate the garage into the development to minimize the visual impact of the garage. Although not fully connected, the garage has a number of features that tie it in to the development. On the West elevation, these features include window openings that match the multi -family building. Accent banding, exterior material colors that also match the multi- family building D. Trees or Fauna Page 401 of 971 The Pierce- Community Design Appeal, West Elevation i�" �i " c 13 Street trees and a green screen along the base of a portion of the garage is located on the west side E. Environmental Impacts The proposed request will not have adverse environmental impacts. To the contrary, it will have positive environmental impacts by allowing for the proposed development, which has a number of environmentally friendly features, including open space that exceeds the minimum for the development by over 30%. An enclosed parking structure minimizes negative impact of street parking spaces and the entire facade conceals the appearance of vehicles completely. An entirely white exterior facade helps to reduce heat island impacts. Heat island impact is reduced as well by utilizing structured parking, rather than surface parking. F. Impact on Property Values The proposed request will not have an adverse impact on property values of abutting or adjacent land. In fact, we expect it to positively impact property values by housing over 400 new residents with disposable incomes to help support nearby businesses. The Pierce will add 300 apartment units with state-of-the-art amenities, secure parking, interactive public spaces, restaurant, retail and office use including public parking. The Pierce will create a new live -work -play destination in East Boynton Beach, and by helping catalyze the area, will significantly increase property values. Hurricane Alley will be relocated to the SE corner of E Boynton Beach Blvd and NE 4th Street which will offer outdoor seating and dynamic public outdoor space which activates the corner of the street and helps anchor the development along Boynton Beach Boulevard. This mainstay business will positively impact property values by legitimizing Boynton Beach Boulevard as a main commercial corridor G. Light and Air The proposed request will not seriously reduce the quality or quantity of light and air available to adjacent properties. The building is naturally ventilated, allowing for air to flow freely through it. Light is minimally impacted as the garage is oriented east -west, and the majority of daytime shadow will be cast internally onto the development itself rather than adjacent properties. H. Objectives of the City Local Spending/Economic Development: The Pierce is adding 300 new households to the community and over 17,000 SF of restaurant/retail/office space which will greatly contribute to the local area spending, business development and investment. Page 402 of 971 The Pierce- Community Design Appeal, West Elevation i�" �i " c 14 Our resident population is comprised of mostly young professionals whose households generate $30K per year in local spending. New residents provide a new client base with disposable income for existing merchants and businesses. The Pierce brings in private investments, benefitting local consultants, workers and tradesman. The addition of a new building will cause landlords to invest their resources in improving their properties and create the potential for redevelopment of nearby commercial properties in order to keep pace. Workforce Housing: The Pierce is the first luxury apartment building constructed in east Boynton Beach with Class A features and amenities at an attainable price -point for the City's workforce. As a mixed -income housing development, all tenants will benefit from the same luxury finishes and amenities, regardless of income. The restricted units will be split into tiers where 3.8% of the total units are rented to tenants that earn between 60%- 80% of the AMI; 23.1% rented to tenants that earn between 80%- 100% of the AMI; 23.1% rented to tenants that earn between 100%-120% of the AMI; and the remaining total rental units being unrestricted. A portion of the units will maintain affordability into perpetuity. Public Parking: The developer has entered into an agreement with the CRA to provide 150 parking spaces located in the Parking Garage for the use by the general public for enhancement of the downtown in furtherance of the CRA's 2016 Community Redevelopment Plan. Relocation of Existing Businesses (Hurricane Alley) Hurricane Alley restaurant and bar will be relocated to a new 4,500SF building along Boynton Beach Boulevard. This agreement between the developer and the restaurant owner ensures the longevity of this institution and maintains jobs for its employees. Hurricane Alley will front one of Boynton Beach's primary commercial corridors and serve as an anchor to the development establishing a vibrant presence on the north edge of the property. Creation of New Tax Base: The project will be constructed on underutilized and largely vacant property, which creates very little property tax generation to the City. The investment will create a substantial amount of new tax revenue for the City. L Other Standards and Requirements The proposed request does not present any conflicts with other site development standards and requirements. The development will meet the sustainability criteria, as described in the Master Plan and Site Plan narratives. Page 403 of 971 o I NOT FOR CONSTRUCTION "I I J) 115 Is l' 6 1 '1 m � _ -0M p >m _ m -0m Z D M < D D z� 70 PQ, 0�ge m 4 cn o '1 'I it i i i i i i i i i i i i i i i it it (I �l A ISI I�lI NOT FOR CONSTRUCTION j - - nT z mv m r iju0 m r m D O z r m O m z 0 71 �M >m _ _ m -0 -0M p -07 A oD �D o m � a r z o� Z D czi� m i NU gage 4 + 71 AAFFILIATED QMRINKA+ (0 0 Revisions SITE PLAN APPROVAL THE PIERCE ARCHITECTURAL SITE PLAN & SITE DATA EXHIBIT "D" Conditions of Approval Project Name: The Pierce Community Design Appeals File number: CDPA 22-002, 23-006, 23-007, 23-008 Reference: 41h review of plans identified as a New Maior Site Plan and New Master Plan with a January 10, 2023 Planning and Zoning Department date stamp marking. DEPARTMENTS INCLUDE REJECT PLANNING AND ZONING Comments: 1. Parked vehicles shall be effectively screened from view. The intent is to ensure that parked vehicles are not able to be seen, and the appearance of habitable floor area must be maintained. X 2. An irrigated green wall or similar landscape treatment is required on the east elevation of the garage. The treatment is to occupy a minimum of 50% of thee fa ade. X PLANNING & DEVELOPMENT BOARD CONDITIONS Comments: No Comments CITY COMMISSION CONDITIONS Comments: To be determined. Page 407 of 971 DEVELOPMENT ORDER OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA PROJECT NAME: APPLICANT: APPLICANT'S ADDRESS The Pierce (CDPA 22-002, 23-006, 23-007, 23-008) BB QOZ, LLC. 613 NW 3RD AVENUE, SUITE 104, FORT LAUDERDALE, FLORIDA 33311 DATE OF HEARING RATIFICATION BEFORE CITY COMMISSION: March 7, 2023 APPROVAL SOUGHT: Approval of four (4) Community Design Appeal requests (CDPA 22-002, 23- 006, 23-007, & 23-008) for Chapter 4, Article III, Section 6.F.2.c, Freestanding Parking Garages, prohibiting freestanding parking garages from having frontage on any arterial or collector roadway, to allow for alternative design solutions for the freestanding parking garage as proposed. LOCATION OF PROPERTY: Generally located at northwest corner of Ocean Avenue and Federal Highway, extending north to Boynton Beach Boulevard and Federal Highway, extending west to NE 4th Street and Federal Highway, and south to approximately one- half block north of Ocean Avenue. DRAWING(S): SEE EXHIBIT "B" ATTACHED HERETO. THIS MATTER was presented to the City Commission of the City of Boynton Beach, Florida on the date of hearing stated above. The City Commission having considered the approval sought by the applicant and heard testimony from the applicant, members of city administrative staff and the public finds as follows: Application for the approval sought was made by the Applicant in a manner consistent with the requirements of the City's Land Development Regulations. 2. The Applicant X HAS HAS NOT established by substantial competent evidence a basis for the approval requested. 3. The conditions for development requested by the Applicant, administrative staff, or suggested by the public and supported by substantial competent evidence are as set forth on Exhibit "C" with notation "Included." 4. The Applicant's request is hereby X GRANTED subject to the conditions referenced in paragraph 3 above. DENIED 5. This Order shall take effect immediately upon issuance by the City Clerk. 6. All further development on the property shall be made in accordance with the terms and conditions of this order. 7. Other: DATED: City Clerk S:\Planning\SHARED\WP\PROJECTS\The Pierce - 101 N Federal (fka 115 N Federal Hwy)\CDPA 22-002, 23-006, 23-007, 23-008\Development Order\CDPA 22-002 23-006 23-007 23-008 DO.doc Page 408 of 971 8.H. Public Hearing 2/21/2023 Requested Action by Commission: Approve request for Height Exception (HTEX 23-001) to allow the freestanding parking garage egress staircase of the The Pierce mixed-use project to be constructed at 77 feet 11 inches, 2 feet 11 inches above the maximum allowable height of 75 feet in the MU -C (Mixed -Use Core) zoning district. Applicant/Agent: Jeffery Burns, Affiliated Development Explanation of Request: The applicant is requesting approval of the proposed freestanding parking garage to be 77 feet 11 inches in height rather than a maximum of 75 feet, as required in Chapter 4, Article 111, Section 6.F.2.c. The purpose of C. Height Exception (Chapter 2, Article 11, Section. Relief) is to allow for certain eligible building appurtenances and structures, erected or located on top of or within a building, to exceed the maximum building height allowed by the respective zoning district upon demonstrating compliance with the review criteria. The requested height exception will allow for the required egress staircase, located at the northwest corner of the building, to extend 2 feet above the maximum allowed height of 75 feet for a total structure height of 77 feet, and is not intended to circumvent the maximum height allowed for the freestanding parking garage. The remainder of the freestanding parking garage complies with the maximum allowable height. In addition, the maximum allowed building height within the Mixed Use -Core zoning district is 150 feet, therefore, the proposed height of the egress staircase would not have any negative impacts on surrounding properties. The Planning & Development Board recommended APPROVAL of this request during the February 6, 2023 meeting. How will this affect city programs or services? This will not affect City program or services. Fiscal Impact: There will no fiscal impact to the budget for this item. Alternatives: Staff has reviewed the requests for the Height Exception and recommends DENIAL based on the recommendation of denial for the associated variance request ZNCV 23-002. However, should the City Commission approve the applicant's request for a variance for relief from Part 111, Chapter 4, Article 11, Section 4.B.3.c Urban Landscape Buffer (Type 2); then staff recommends APPROVAL of the Height Exception request contingent upon City Commission approval of concurrent requests for the New Major Site Plan, New Master Plan, Rezoning, and Abandonment applications, and satisfying all comments indicated in Exhibit D — Conditions of Approval. Any additional conditions recommended by the Board or City Commission shall be documented accordingly in the Exhibit D. Strategic Plan: Strategic Plan Application: N/A Page 409 of 971 Climate Action Application: N/A Is this a grant? Grant Amount: Attachments: Type D Staff IRE)port D I ocaboin li ap D Exhibit D �D ings D Coindboins of Appirov,-,.ill D C:: OrdE)r Description Staff IRE)port Exhibit A I ocaboin li ap Exhibit IB Appicaint J LAStificaboin StatEKTIEsIlnt Exhibit C Flarkiing (3)aragE)EE)V,.-.1b01['1S Exhibit ID Coindboins of Appirov,-,.Ill is E)V(.)lopirTIENI'lt OrdE)r Page 410 of 971 DEVELOPMENT DEPARTMENT PLANNING AND ZONING DIVISION MEMORANDUM NO. PZ 23-010 STAFF REPORT TO: Chair and Members Planning and Development Board THRU: Amanda B. Radigan, AICP, LEED AP Planning and Zoning Director FROM: Craig Pinder, Planner II DATE: January 18, 2023 PROJECT NAME: The Pierce Height Exception (HTEX 23-001) REQUEST: Approval of a Height Exception (HTEX 23-001) for Chapter 4, Article III, Section 6.F.2.c to exceed the maximum height of 75 feet for a freestanding parking garage to allow for a height of 77 feet 11 inches for an egress staircase. Property Owner: Boynton Beach CRA, BB QOZ LLC, & City of Boynton Beach Applicant: BB QOZ, LLC Agent: Jeffery Burns, Affiliated Development Rebecca Zissel, Sachs Sax Caplan, P.L. Location: Generally located at northwest corner of Ocean Avenue and Federal Highway, extending north to Boynton Beach Boulevard and Federal Highway, extending west to NE 4th Street and Federal Highway, and south to approximately one- half block north of Ocean Avenue (see Exhibit A: Location Map) Site Details: The applicant has submitted development applications for a Rezoning, New Major Site Plan, and Master Plan, four (4) Community Design Appeals, one Height Exception, and three (3) Abandonments for a mixed-use project known as The Pierce, which proposes an eight -story mixed-use building with 300 multi- family units, approximately 17,089 square feet of commercial space, recreational amenities, parking, and other related site improvements. The total area of the subject properties is 3.04 acres BACKGROUND AND ANALYSIS The application submitted for a Height Exception (HTEX 23-001) pursuant to Chapter 4, Article III, Section 6.F.2.c, Freestanding Parking Garages of the Land Development Regulations (LDR), which restricts the maximum height of the freestanding parking garage to 75 feet. The applicant is requesting approval of the proposed freestanding parking garage to be 77 feet 11 inches in height rather than a maximum of 75 feet, as required in Chapter 4, Article III, Section 6.F.2.c. The purpose of C. Height Exception (Chapter 2, Article II, Section. Relief) is to Page 411 of 971 The Pierce Height Exception (HTEX 23-001) Memorandum No PZ 23-010 Page 2 allow for certain eligible building appurtenances and structures, erected or located on top of or within a building, to exceed the maximum building height allowed by the respective zoning district upon demonstrating compliance with the review criteria. The applicant is proposing the egress staircase to be at 77 feet and 11 inches, extending 2 feet and 11 inches above the maximum allowed height of 75 feet. The applicant has submitted a Justification Statement for the height exception (See Exhibit B — Justification Statement) addressing each of the following review criteria - a) On the subject site or surrounding properties, whether the height exception would adversely affect any of the following: 1) light and air; 2) property values; 3) the living conditions; or 4) existing or proposed land uses; b) Whether the height exception would be a deterrent to the development or improvement of adjacent properties in accord with existing regulations; c) Whether the height exception would contribute to the architectural character and form of the proposed project; d) Whether the height exception would positively contribute to the city's desired image, streetscape design, or recommendation of any applicable redevelopment plan; e) Whether the height exception would contribute, incentivize, or serve as a catalyst for sustainable development and other green initiatives; fl Whether the height exception is necessary and not proposed in a manner with which the principle objective is to maximize project visibility without concern for architectural or aesthetic integrity; and g) Whether sufficient evidence has been presented to justify the need for a height exception. The requested height exception will allow for the required egress staircase, located at the northwest corner of the building, to extend 2 feet above the maximum allowed height of 75 feet for a total structure height of 77 feet 11 inches, and is not intended to circumvent the maximum height allowed for the freestanding parking garage. The remainder of the freestanding parking garage complies with the maximum allowable height (See Exhibit C — Parking Garage Elevations). In addition, the maximum allowed building height within the Mixed Use -Core zoning district is 150 feet, therefore, the proposed height of the egress staircase would not have any negative impacts on surrounding properties. RECOMMENDATION Staff has reviewed the requests for the Height Exception and recommends DENIAL based on the recommendation of denial for the associated variance request ZNCV 23-002. However, should the City Commission approve the applicant's request for a variance for relief from Part III, Chapter 4, Article II, Section 4.B.3.c Urban Landscape Buffer (Type 2); then staff recommends APPROVAL of the Height Exception request contingent upon City Commission approval of concurrent requests for the New Major Site Plan, New Master Plan, Rezoning, and Abandonment applications, and satisfying all comments indicated in Exhibit D — Conditions of Approval. Any additional conditions recommended by the Board or City Commission shall be documented accordingly in the Exhibit D. S:\Planning\SHARED\WP\PROJECTS\The Pierce - 101 N Federal (fka 115 N Federal Hwy)\HTEX 23-001\HTEX 23-001 Staff Report-Final.dou Page 412 of 971 Page 413 of 971 Exhibit B.5 Pro] ect Narrative- The Pierce, Height Exception u, �1 & C 11 This application for Height Exception is submitted on behalf of BB QOZ, LLC (the "Applicant") for the project known as The Pierce. Applications for Rezoning, New Master Plan, New Major Site Plan, Abandonments, and Community Design Appeals are being submitted concurrently. Pursuant to Section 2.1) of the Boynton Beach, FL Code of Ordinances, Part III Land Development Regulations (the "Land Development Regulations") Chapter 2, Article 11, this application would seek approval to allow for the staircase and parapet as shown on the enclosed West elevation of the parking garage. The request is a deviation from the maximum allowable height requirement in the MU -C zoning district for building appurtenances and architectural features. This is for the parking garage building. At its maximum, the proposed building is 8 stories, and the height of the building is 72'-11" to parking level 8 from parking level 1 (the lowest floor elevation of the garage) with a parapet that varies in height, but stays under the allowable 5'-0" over the highest parking level, and the height of the required egress staircase is set to be exactly 5'-0" above the highest floor level, at an overall height from parking level 1 of 77'-11". The resident elevators are inside the multi -family building to the south. There is a parking garage public elevator which goes up to level 2.5 for public parking while the resident building is connected at every level. Under the Land Development Regulations, a Height Exception is intended to provide an efficient relief process to allow for certain eligible building appurtenances and structures to exceed the maximum building height allowed by the zoning district upon demonstrating compliance with the applicable review criteria. This application is not intended to circumvent the maximum height allowed for buildings. The Height Exception would allow for the required egress stair to extend greater than five feet above the 75'-0" permitted building for parking structures within the development district. This fits within the purpose and intent of the Land Development Regulations. The design flexibility would allow for the proposed design to proceed. This design provides visual interest and enhancement to the building facade without negatively impacting the subject site and surrounding properties. The application meets the review criteria specified in Section 4 of Chapter 2, Article II of the Land Development Regulations as follows: a. Granting of the Height Exception would not adversely affect any of the following: 1) light and air; 2) property values; 3) the living conditions; or 4) existing or proposed land uses. The location of the proposed parking garage, and specifically the staircase and parapet at issue in this height exception request, ensures that there will be minimal impact on light and air to adjacent properties. The parking garage is located on the western part of the property towards the north. This is furthest from existing residential buildings to the south and east of the property. To the west of the western facade of the parking garage is the railroad tracks. Given this choice of location, as well as the fact that the total height of the parapet and staircase will remain under the 80' maximum allowable for a building of 75' in height, the height exception will not have any adverse impact on any light and air quality. The proposed project replaces underutilized property at a prime location at the corner of Boynton Beach Boulevard and Federal Highway. The Pierce will improve the existing site and add 300 residential units whose tenants will support local commercial uses. The project will also activate the street frontage and add additional commercial tenants to revitalize the area. The additional public parking spaces will also Page 414 of 971 The Pierce- Height Exception Narrative i�" �i " c 12 add to the desirability of future projects in the neighborhood. Accordingly, property values in the area are expected to increase not decrease. Living conditions in the area will also not be adversely affected by the granting of the height exception. As mentioned above, the total height will remain below the maximum permissible in the zoning district. The minor increase for the parapet and/or staircase on the western facade of the parking garage already located on the western side of the property adjacent to the railroad tracks will not directly contribute to any decrease in the living conditions of the area, which will be improved by the overall project and its addition of additional residences, parking, and commercial spaces. The total height and the placement are compatible with existing and potential future buildings in the area. The actual height exception request is minimal, and the location minimizes any potential impact. Accordingly, there will not be adverse impacts on existing or proposed land uses. Based on the above reasoning, the proposed height exception meets the criteria related to lack of adverse impact on 1) light and air; 2) property values; 3) living conditions; and 4) existing or proposed land uses. b. Granting of the Height Exception would not be a deterrent to the development or improvement of adjacent properties in accord with existing regulations. The height exception is requested for the western facade of the parking garage located on the western side of the property. This is the area adjacent to the railroad tracks. The requested height exception is also minimal and involves a total height under what could be built in the area under the land development regulations. Accordingly, the height exception itself would not be a deterrent to the development or improvement of adjacent properties. By contrast, the overall project, which is made possible by the location of the parking garage in the area proposed on the drawings with the maximum parking possible provided, will spur development and improvement of adjacent properties in accord with existing regulations. This new mixed-use development with 300 additional residential units, additional commercial spaces, and public parking, will contribute to the neighborhood and is expected to encourage revitalization of neighboring properties. The new residents will patronize local commercial businesses and provide demand for additional commercial uses. The property will also increase property values and tax revenue, thereby also adding the potential for additional redevelopment. c. Granting of the Height Exception would contribute to the architectural character and form of the proposed project. The height exception request specifically relates to features that are designed in order to improve the design of the building, not detract from it. The parking garage has been designed to blend into the property and contribute to the architectural character and form of the proposed project. By allowing the design as proposed to move forward with the grant of the height exception, the overall visual appeal of the project will be increased. d. Granting of the Height Exception would positively contribute to the city's desired image; streetscape design; or recommendation of any applicable redevelopment plan. The height exception would allow for the development as detailed in the enclosed additional narratives for The Pierce. In addition, after the first submittal and receipt of comments, our team met with staff to redesign the parking garage to further meet the requested design changes and integrate the garage seamlessly into the overall development. The resulting design contributes to the City's desired image and streetscape design. Page 415 of 971 The Pierce- Height Exception Narrative P �i g c 13 e. Granting of the Height Exception would contribute, incentive, and/or serve as a catalyst for sustainable development and other green initiatives. The project design incorporates a number of design elements that contribute to a sustainable development. The enclosed master plan and site plan narratives detail the various sustainable development standards in place for this project. The project also adds a residential component to an existing commercial development that is largely underutilized. It also adds commercial space to an area with several existing large residential properties in the vicinity. These factors both will increase the walkability of the area. f. The Height Exception is necessary and not proposed in a manner with which the objective is to maximize project visibility without concern for architectural or aesthetic integrity. The height exception is necessary to support the mix of uses for the development, which includes public amenities, as well as to provide adequate public parking. It allows for the placement of the parking garage in the area that is the only location to best meet these goals. The height exception is not request only to maximize visibility. Architectural and aesthetics integrity were considered in the design, and the result is a high-quality design that meets the stated goals. These design features add cost to the project but contribute to the aesthetics. g. Sufficient evidence has been presented in the enclosed drawings and narratives to justify the need for a height exception. As details in the enclosed plans and narratives, the height exception is justified. The request itself related to the height exception is minimal and will allow for the project as designed to contribute to the neighborhood and the City. Page 416 of 971 o I NOT FOR CONSTRUCTION "I I J) 115 Is l' 6 1 '1 m � _ -0M p >m m -0m _ Z D m < D z� 70r m D zK T `-Tn " °= D PQ, F)2rg a 4- fJ7 m + , 0 '1 'I it i i i i i i i i i i i i i i i it it (I �l A ISI I�lI NOT FOR CONSTRUCTION j - - nT z mv m r iju0 m r m D O z r m O m z 0 71 �M _ -07 -0M p >m m _ A �D o m � oD a r z Dczi� m U mT N gage 4- 67 + 0 71 EXHIBIT "D" Conditions of Approval Project Name: The Pierce File number: HTEX 23-001 Reference: 41h review of plans identified as a New Maior Site Plan and New Master Plan with a January 10, 2023 Planning and Zoning Department date stamp marking. DEPARTMENTS INCLUDE REJECT PLANNING AND ZONING Comments: 1. Approval of the height exception request is contingent upon the approval of all concurrent application for The Pierce Development. X PLANNING & DEVELOPMENT BOARD CONDITIONS Comments: No comments. CITY COMMISSION CONDITIONS Comments: To be determined. Page 419 of 971 DEVELOPMENT ORDER OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA PROJECT NAME: APPLICANT: APPLICANT'S ADDRESS The Pierce (HTEX 23-001) BB QOZ, LLC. 613 NW 3RD AVENUE, SUITE 104, FORT LAUDERDALE, FLORIDA 33311 DATE OF HEARING RATIFICATION BEFORE CITY COMMISSION: March 7, 2023 APPROVAL SOUGHT: Approval of a Height Exception (HTEX 23-001) for Chapter 4, Article III, Section 6.F.2.c to exceed the maximum height of 75 feet for a freestanding parking garage to allow for a height of 77 feet 11 inches for an egress staircase. LOCATION OF PROPERTY: Generally located at northwest corner of Ocean Avenue and Federal Highway, extending north to Boynton Beach Boulevard and Federal Highway, extending west to NE 4th Street and Federal Highway, and south to approximately one- half block north of Ocean Avenue. DRAWING(S): SEE EXHIBIT "B" ATTACHED HERETO. THIS MATTER was presented to the City Commission of the City of Boynton Beach, Florida on the date of hearing stated above. The City Commission having considered the approval sought by the applicant and heard testimony from the applicant, members of city administrative staff and the public finds as follows: 1. Application for the approval sought was made by the Applicant in a manner consistent with the requirements of the City's Land Development Regulations. 2. The Applicant X HAS HAS NOT established by substantial competent evidence a basis for the approval requested. 3. The conditions for development requested by the Applicant, administrative staff, or suggested by the public and supported by substantial competent evidence are as set forth on Exhibit "C" with notation "Included." 4. The Applicant's request is hereby X GRANTED subject to the conditions referenced in paragraph 3 above. DENIED 5. This Order shall take effect immediately upon issuance by the City Clerk. 6. All further development on the property shall be made in accordance with the terms and conditions of this order. 7. Other: DATED: City Clerk S:\Planning\SHARED\WP\PROJECTS\The Pierce - 101 N Federal (fka 115 N Federal Hwy)\HTEX 23-001\Development Order\HTEX 23-001 DO.doc Page 420 of 971 1.1" Public Hearing 2/21/2023 Requested Action by Commission: Approval of a Major Master Plan Modification for Boynton Beach Town Square to amend the number of proposed dwelling units, project phasing, and allow for additional commercial area. Applicant: Robert Singer, Time Equities, INC. Explanation of Request: The subject areas cover four blocks and include 14 parcels, totaling 15.52 acres. The applicant, Time Equities, INC. is under contract with J KM BTS, LLC to purchase the vacant privately -owned parcels (North and South Parcels, See Exhibit A). Portions of the subject areas, including the City Hall Complex, amphitheater, park, and playground, were completed as the first phase of the approved Master Plan (LUAR 17-005). The first phase of the approved Master Plan also included a parking garage on the South Parcel, which to date has not begun construction. The proposed project is the product of the partnership between the City, CRA, and a private development team, based on the Public -Private Partnership (P3) development model enabled by Chapter 255.065, Florida Statutes. A P3 is achieved through an agreement between public and private entities, which allows for greater private -sector participation in the financing, delivery of public buildings, and infrastructure projects. In February of 2015, the City approved Resolution No. R15-020, which established procedures for processing of Pas. Time Equities has drafted a Development Agreement associated with the subject application, which is currently under review by the City and targeting concurrent approval of this Major Master Plan Modification at the February 21, 2023 City Commission Meeting. Approval of the proposed Master Plan modifications is conditioned on the several concurrent applications including two (2) Land Development Regulation (LDR) amendments: the City's Workforce Housing Program and the establishment of the process and criteria for Development Agreements (See Exhibit E — Conditions of Approval). Lastly, the Master Plan is conditioned on approval of a land exchange between the City and J KM BTS North Parcel, LLC (See Exhibit E — Conditions of Approval). The Master Plan proposes that the City gain ownership of the parcel (approximately 1.2 acres, Parcel No. 08434528480030030) located at the northwest corner of Ocean Avenue and NE 1St Street in exchange for the property located at the southeast corner of E. Boynton Beach Blvd. and N. Seacrest Blvd. (approximately 1.1 acres, Parcel No. 08434528480010020 & 08434528480010010). Under the subject major modification application, the applicant is requesting approval of two (2) residential buildings with commercial uses and parking garages on the North and South Parcels, as well as several modifications to the previously approved Master Plan (MPMD 19-001). Furthermore, the City will gain ownership of Phase 4, AKA Central Parcel, situated east of the Children's Museum. Uses of Phase 4 are estimated for this modification application and subject to change at the discretion of the City. The uses shall be comparable to the existing proposal or the proposed use may be up to an equivalent intensity. The following is a list of the proposed modifications, and itemized development elements are provided in the staff report for reviews. Increased number of dwelling units Land exchange Revised phasing plan Page 421 of 971 • Changes to the building height proposed in the South Parcel • Amended first floor uses to commercial • Modified building massing This Major Master Plan Modification application was heard in the Planning and Development Board Meeting on February 6, 2023. The Board did not recommend approval of the application. How will this affect city programs or services? This will not affect City programs or services. Fiscal Impact: This agreement will serve as a revenue generation to the City in the following areas based on City fees: Art Fee Permit Fee Workforce Housing Fee Park Impact Fee In addition, there is settlement funding with J KM contingent on the finalization of this development agreement. Alternatives: None recommended. Strategic Plan: Strategic Plan Application: N/A Climate Action Application: N/A Is this a grant? Grant Amount: Attachments: Type D Staff IIRE)p.:irf D 1:::::.xhilbit D 1:::::.xhilbit D 1:::::.xhilbit D 1:::::.xhilbit D Coindliflia:air s ofIppirov,-'ill D DE)V(.) a:al irTIEsirlf f firdE)r Description fa:awn w: gUia ir'E) I IPI ID 23...004 Staff IIRE)p.:irt Exhibit A 1.....a:caflia:air: li Map Exhibit IB ... IC:::::.)dstliir:g Il:::::LAtLAir'E) Il.....air:d USE) Exhibit C C::.acistiir:g f(..:ir:liir g Exhibit ID astE)ir Rain Exhibit II::::°. Coindliflia:air s ofIppirov-'.ill fa:awn f: gUia irE) I IPI ID 23 004 IC: E)V(.)lla:al irTIEsiraif f firdE)r Page 422 of 971 DEVELOPMENT DEPARTMENT a PLANNING AND ZONING DIVISION MEMORANDUM NO. PZ 23-001 STAFF REPORT TO: Mayor and City Commission THRU: Amanda B. Radigan, AICP, LEED AP Planning and Zoning Director FROM: Jae Eun Kim, PLA Principal Planner DATE: February 21, 2023 PROJECT: Boynton Beach Town Square Master Plan Major Master Plan Modification (MPMD 23-004) REQUEST: Approval of a Major Master Plan Modification for Boynton Beach Town Square to amend the number of buildable dwelling units, the project phasing, and changes to the commercial use areas. PROJECT DESCRIPTION Property Owner: City of Boynton Beach, JKM BTS NORTH LLC, & JKM BTS SOUTH LLC Applicant: Robert Signer, Time Equities, INC. Location: The subject properties bounded by Seacrest Boulevard to the west, NE/SE 1St Street to the east, Boynton Beach Boulevard to the north, and SE 2nd Avenue to the south (See Exhibit A — Location Map) Existing Future Land Use: MXM (Mixed Use Medium, See Exhibit B — Land Use Map) Existing Zoning: MU -3 (Mixed Use 3, See, Exhibit C — Zoning Map) Proposed Future Land Use: No change proposed Proposed Zoning: No change proposed Acreage: +/- 16.22 acres (overall site areas for the Master Plan) +/- 15.52 acres (gross site areas excluding existing rights-of-way) Adjacent Uses: North: The right-of-way of Boynton Beach Boulevard; further north are developed properties with a Future Land Use classification of LRC (Local Retail Commercial) and a zoning designation of C-3 (Community Commercial District). Existing uses include retail, office, and restaurant. Page 423 of 971 Page 2 Boynton Beach Town Square Master Plan MPMD 23-004 South: The right-of-way of SE 2nd Avenue; further south are developed with a Future Land Use classification of MEDR (Medium Density Residential) and zoning designations of R -1-A (Single -Family Residential District) & R-2, (Single- and Two -Family Residential District). Existing uses include developed single-family homes East: The right-of-way of SE 2nd Avenue; further east are developed with the following Future Land Use classifications of LRC (Local Retail Commercial), MEDR (Medium Density Residential), MXM (Mixed Use Medium), and LDR (Low Density Residential), and zoning designations of C-3 (Community Commercial), R-3 (Multi Family), MU -3 (Mixed Use 3), and R-1 -A (Single Family). Existing uses include retail, City fire station, multi -family residential, single family home, and vacant lot. West: The right-of-way of North Seacrest Blvd; further west are developed with following Future Land Use classifications of LRC (Local Retail Commercial) and MEDR (Medium Density Residential), and zoning designations of C-2 (Neighborhood Commercial) and R-3 (Multi Family). Existing uses include post office, office, worship center, single family home, and multi -family residential. BACKGROUND The subject area covers four blocks, bounded by Seacrest Boulevard to the west, NE/SE 1St Street to the east, East Boynton Beach Boulevard to the north and SE 2nd Avenue to the south. It includes 14 parcels, totaling 15.52 acres. The current applicant, Time Equities, INC is under contract with JKM BTS, LLC to purchase the vacant privately -owned parcels (North and South Parcels, See Exhibit A). Portions of the subject areas, including the City Hall Complex, amphitheater, park, and playground, were completed as the first phase of the approved Master Plan (LUAR 17-005). The first phase of the approved Master Plan also included a parking garage on the South Parcel, which to date has not begun construction. The proposed project is the product of the partnership between the City, CRA, and a private development team, based on the Public -Private Partnership (P3) development model enabled by Chapter 255.065, Florida Statutes. A P3 is achieved through an agreement between public and private entities, which allows for greater private -sector participation in the financing, delivery of public buildings, and infrastructure projects. In February of 2015, the City approved Resolution 15-020, which established procedures for processing of P3s. Time Equities has drafted a Development Agreement associated with the subject application, which is currently under review by the City and targeting concurrent approval of this Major Master Plan Modification on the February 21, 2023 City Commission Meeting. Approval of the proposed Master Plan is conditioned on the several concurrent applications including two (2) Land Development Regulation (LDR) amendments: the City's Workforce Housing Program and the establishment of the process and criteria for Development Agreements (See Exhibit E — Conditions of Approval). Lastly, the Master Plan is conditioned on approval of a land exchange between the City and JKM BTS North Parcel, LLC (See Exhibit E — Conditions of Approval). The Master Plan proposes that the City gain ownership of the parcel (approximately 1.2 acres, Parcel No. 08434528480030030) located at the northwest corner of Ocean Avenue and NE 1St Street in exchange for the property located at the southeast corner of E. Boynton Beach Blvd and N. Seacrest Blvd (approximately 1.1 acres, Parcel no. 08434528480010020 & 08434528480010010). 2 C:\Program Files (x86)\neevia.com\docConverterPro\temp\NVDC\F41CC416-5DD4-4F81-AA65-2BBFB6ED18D2\Boynton Beach.37128.1.Town_Square_MPMD_23- 004_Staff_Report 022123CC_H e a ri n g. d ocx Page 424 of 971 Page 3 Boynton Beach Town Square Master Plan MPMD 23-004 History of the Town Square Master Plan February 20. 2018 Ord. 17-021 Town Square Future Land Use Amendment: Amending from Public and Private Government/Institutional (PPGI) & High Density Residential to Mixed Use Medium (MXM). Ord. 17-022 Town Square Rezoning: Amending Public Usage (PU), Recreation (REC) and Multifamily (R-3) to Mixed Use 3 (MU -3) zoning district. February 20, 2018 Boynton Beach Town Square Master Plan approval (LUAR 17-005): A mixed use of civic, residential, and commercial uses. October 23, 2018 Boynton Beach Town Square Plat with a total of 16.869 acres is recorded. This Plat includes the Fire Rescue Station (Parcel 8 of the Plat, 0.6456 acres). April 16, 2019 Approval of the Major Master Plan Modification (MPMD 19-001) was granted by the City Commission on April 16, 2019. Major Master Plan Modifications as follows: • Decreased the number of buildable dwelling units from 705 to 575, • Revised the project phasing, • Revised the proposed use of Building "B" (south parcel) to age -restricted units, • Increased the height of Building "C" (Residential Building, east of the existing Schoolhouse & Children's Museum) from 50 feet to 62 feet, • Increased hotel rooms (northwest corner of the overall site) from 120 to 144, and • Obtained approval for a shared parking study. A comparison of development elements of the Modification (MPMD 19-001) and this Modification (MPMD 23-004) is provided in the table below of this report. April 13, 2021 Minor Master Plan Modification (MPMD 20-002) was approved on April 13, 2021. Minor modifications as follows: • Increase of dwelling units in the southern residential building from 196 to 203 units, and • Corresponding revisions to the shared parking study. ANALYSIS Under the subject major modification application, the applicant is requesting approval of two (2) residential buildings with commercial uses and parking garages on the North and South Parcels, as well as several modifications to the previously approved Master Plan (MPMD 19-001). Furthermore, the City will gain ownership of Phase 4, AKA Central Parcel, situated east of the Children's Museum. Uses of Phase 4 are estimated for this modification application and subject to change at the discretion of the City. The uses shall be comparable to the existing proposal or the proposed use may be up to an equivalent intensity. The proposed modifications compared to the previously approved Master Plan are itemized in the 3 C:\Program Files (x86)\neevia.com\docConverterPro\temp\NVDC\F41CC416-5DD4-4F81-AA65-2BBFB6ED18D2\Boynton Beach.37128.1.Town_Square_MPMD_23- 004_Staff_Report 022123CC_H e a ri n g. d ocx Page 425 of 971 Page 4 Boynton Beach Town Square Master Plan MPMD 23-004 following table: C:\Program Files (x86)\neevia.com\docConverterPro\temp\NVDC\F41CC416-5DD4-4F81-AA65-2BBFB6ED18D2\Boynton Beach.37128.1.Town_Square_MPMD_23- 004_Staff_Report 022123CC_H e a ri n g. d ocx Page 426 of 971 Master Plan approval Proposed Modification (MPMD 19-001) in 2019 (MPMD 23-004) in 2023 Residential North Parcel 210 Units 441 Units Units South Parcel 261 Units 457 Units Central Parcel 104 Units (Age Restricted 144 Hotel Rooms & 15,000 sq.ft. Residential) Commercial Uses Building North Parcel Residential Building: 99 ft Residential/Commercial Building Heights Parking Garage: 99 ft with Garage: 99 ft ht, Maximum Hotel: 75 ft South Parcel Residential Building: 62 ft Residential/Commercial Building Garage: 75 ft with Garage: 87 ft ht, Maximum Central Parcel Age Restricted Building: 75 ft ht, Maximum 80 ft Public Parking A Total of 1787 Spaces Approximately 2338 Spaces Spaces** Including Public Spaces Including Public Spaces Allocation for 542 Public Parking Spaces 539 Public Parking Spaces public use **Note that a North Parcel 151 Public Parking Space 237 Public Parking Spaces public space (101 Garage + 50 on & off - also includes street parking spaces) parking for city South Parcel 391 public parking spaces 236 Public Parking Spaces employees. (364 Garage + 27 on& off- street parking spaces) Central Parcel N/A. Parking provided for Required parking for uses 104 Age Restricted proposed for this parcel shall be Residential Units provided on the parcel. Government/Civic Parking provided in the Existing 66 on & off-street parking Parcel (AKA South Parcel parking spaces Phase 1 site) garage. Right-of-way NE & SE 1St Street As existing Land dedication may be required (ROW) for ROW purposes. NE 1St Ave Abandoned 45 ft wd land dedication for ROW purposes SE 1St Ave 24 ft Public Ingress/Egress 40 ft wd land dedication for ROW Easement purposes & an easement vacation Public Two sperate locations Two sperate locations to be Restroom provided by the City and paid by the applicant on Government /Civic Parcel (Phase 1 Site) C:\Program Files (x86)\neevia.com\docConverterPro\temp\NVDC\F41CC416-5DD4-4F81-AA65-2BBFB6ED18D2\Boynton Beach.37128.1.Town_Square_MPMD_23- 004_Staff_Report 022123CC_H e a ri n g. d ocx Page 426 of 971 Page 5 Boynton Beach Town Square Master Plan MPMD 23-004 Commercial Use Overall Site 34,642 sq.ft. Approximately 38,504 sq.ft. including 15,000 sq.ft. proposed on Central Parcel. Hotel 144 Rooms & 15,000 sq.ft. 144 Rooms & 15,000 sq.ft. Commercial Uses Commercial Uses Location Southeast corner of the Central Parcel, northwest corner intersection of N Seacrest of the intersection of E Ocean and E Boynton Beach Blvd Ave and NE 1 St (east of the existing Children's Museum) Phasing Plan Phase 1 Cultural Center, Constructed except for the (Government/Civic Playground, City Parking Garage*** *** Parking Parcel) Hall/Library, Children's garage was Museum, Amphitheater, planned for and Parking Garage* residential units Phase 2 Residential Building B (261 Residential Building (457 Units) & general public (South Parcel) Units) with Commercial use with Commercial Uses and including the city and Parking Garage Parking Garage employees. Phase 3 Residential Buildings A Residential Building (441 Units) (North Parcel) (210 Units) & C (104 Units) with Commercial Uses and with Parking Garage Parking Garage Phase 4 Hotel (144 Rooms) with 144 Rooms with Commercial Use (Central Parcel) Commercial Use Increased number of dwelling units The approved Master Plan (MPMD 19-001) proposed a total of 575 units (a density of 38.2 units per acre) within three separate buildings. The applicant is requesting to increase the number of dwelling units to 898 between two (2) buildings; One (1) 441 residential unit building on the North Parcel and one (1) 457 residential units on the South Parcel (see Exhibit D — Master Plan). The proposed dwelling units have resulted in a density increase from 38.2 du/ac to 57.9 du/ac. The Mixed Use Medium (MXM) Future Land Use classification and Mixed Use 3 (MU -3) zoning designation have a maximum residential density of fifty (50) dwelling units per gross acre, except within the Downtown Transit -Oriented Development District (DTODD), where the maximum density may be 62 du/ac through participation in the Workforce Housing Program. The proposed density under the subject application is 57.9 du/ac. Furthermore, the proposed zoning district of MU -3 also has a minimum density of 30 du/ac (See Exhibit E — Conditions of Approval). Land exchange Lastly, the master plan is conditioned on approval of a land exchange between the City and JKM BTS North Parcel, LLC (See Exhibit E — Conditions of Approval). The Master Plan proposes that the City gain ownership of the Central Parcel (Parcel No. 08434528480030030) located at the northwest corner of Ocean Avenue and NE 1St Street in exchange for a portion of the North Parcel located at the southeast corner of E. Boynton Beach Blvd and N. Seacrest Blvd (Parcel no. 08434528480010020 & 08434528480010010). 5 C:\Program Files (x86)\neevia.com\docConverterPro\temp\NVDC\F41CC416-5DD4-4F81-AA65-2BBFB6ED18D2\Boynton Beach.37128.1.Town_Square_MPMD_23- 004_Staff_Report 022123CC_H e a ri n g. d ocx Page 427 of 971 Page 6 Boynton Beach Town Square Master Plan MPMD 23-004 Revised phasing plan The approved Master Plan delineated four (4) phases of development. The applicant is requesting to modify the phasing plan of the Master Plan as follows: • Phase 1 (Government/Civic Parcel): Completed except for a parking garage. • Phase 2 (South Parcel): Residential and commercial developments with a parking garage. • Phase 3 (North Parcel): Residential and commercial developments with a parking garage. • Phase 4 (Central Parcel): 144 Rooms with Commercial Use. The Central Parcel uses are estimated for this modification application and subject to change. Additional height for the building proposed in the South Parcel The applicant is requesting to increase the building height to a maximum of 87 feet through participation in the Workforce Housing Program. Pursuant to Part III, Chapter I, Article V, Section 2. Workforce Housing Program, projects located within the DTODD (Downtown Transit Oriented Development District) may use the density bonus of up to 25% alone or in conjunction with the height bonus of one (1) additional story (up to a maximum of 12 feet). The MU -3 zoning district allows a maximum building height of 75 feet. Amended first floor uses to commercial The previously approved Master Plan consists of 34,642 sq.ft. of the commercial use floor areas. The applicant is requesting to modify the plan to provide the commercial use areas to Approximately 38,504 sq.ft. The proposed commercial uses are primarily fronting E Boynton Beach Blvd and SE 1 Ave. Permitted uses for the commercial use areas will be specified during the site plan review. • Phase 2 (South Parcel): Approximately 7,165 sq.ft. • Phase 3 (North Parcel): Approximately 16,339 sq.ft. • Phase 4 (Central Parcel): Approximately 15,000 sq.ft. Modified building massing Although the exact building footprints of the proposed new buildings are not defined, the placement and adjacencies are reflected on the Master Plan. All new buildings are proposed to be oriented to front on streets, adjacent to the enhanced pedestrian public facilities to maximize the pedestrian experience. Ingress and egress from and to the parking garages is proposed along NE 1St Ave and SE 1 stAve to reduce interference of the traffic flow along East Boynton Beach Blvd, and to reduce impacts to the existing residential neighborhood to the south. Proposed Land Development Regulation (LDR) Text Amendments As previously stated, in order to approve the Master Plan modification as proposed, the following staff initiated LDR text amendments must be approved: Proposed amendments to the Workforce Housing Program: The amendment is proposing to 1) modify methodology for Payment in Lieu of construction of Workforce Housing Units, 2) provide a Floor Area Ratio (FAR) bonus of one-half (0.5) for participation in the Program, which could allow a maximum FAR of 3.5 for the subject site, and 3) clarify the receiving areas for height, FAR, and density bonuses. The proposed FAR for this Master Plan Modification is contingent upon approval of the LDR text amendment of City's Workforce Housing Program outlined in Chapter 1, Article V, Section 2 of Part III. Land Development Regulations (CDRV 23-001). • Proposed amendments to establish a procedure of Development Agreements: The City's current 6 C:\Program Files (x86)\neevia.com\docConverterPro\temp\NVDC\F41CC416-5DD4-4F81-AA65-2BBFB6ED18D2\Boynton Beach.37128.1.Town_Square_MPMD_23- 004_Staff_Report 022123CC_H e a ri n g. d ocx Page 428 of 971 Page 7 Boynton Beach Town Square Master Plan MPMD 23-004 Land Development Regulations (LDRs) do not include a procedure to govern the process of entering into a Development Agreement. To date, the City has relied on FL State statute minimum requirements. The proposed amendments establish a procedure, submittal requirements, eligibility requirements, and alternative standards that are designed to allow for flexibility in key areas of the LDRs. Part III, Chapter 2. Land Development Process, Article II. Planning and Zoning Division Services, Section 2. Standard Applications will to be codified to establish a procedure of Development Agreements (CDRV 23-003). CONCLUSION/RECOMMENDATION As indicated herein, staff has reviewed the proposed Major Master Plan Modifications and has determined that the project is in compliance with existing Mixed Use Medium (MXM) Future Land Use Classification and the existing zoning designation of MU -3 (Mixed Use — 3). Should the Planning and Development Board recommend approval of the requested Major Master Plan Modification, staff recommends including the Conditions of Approval (Exhibit E - Conditions of Approval). ATTACHMENTS 7 C:\Program Files (x86)\neevia.com\docConverterPro\temp\NVDC\F41CC416-5DD4-4F81-AA65-2BBFB6ED18D2\Boynton Beach.37128.1.Town_Square_MPMD_23- 004_Staff_Report 022123CC_H e a ri n g. d ocx Page 429 of 971 Page 430 of 971 Page 431 of 971 Page 432 of 971 PHASE =3 NORTH RESIDENTIAL/ COMMERCIAL 441 UNITS TPHASE 11 PHASE G&ERNM�INT/ .. CENTRAL PARCEL CIVIC R_ 1'�E P" xo IF, PHASE 1 GOVERNMENT/ rVIC " � T, PI'IlIPl DEVELOPMENT TEAM — — — — — — — — — -..... 11A""El TIA11111 FlIA -IL FlF1' I'L "'I' EN-ElB 11,11411 AlIlITIIT 11 A 1111111 "I" IF,Ise LSF AacLA" 'C'APE 1 N'O'11�14�l L 11, 1 A K I I NN B IA I I 1.NTlFLALl T111 P_ _ 11 Exhibit D - Master Plan LOCATION MAP urban E= desin stuc?(0 U- D n 6 PInq NOUN L.ndcape A -It ... B, PHASE2 SOUTH RESIDENTIA= 1 of 2 COMMERCIAL 4 4�' UNITS 5 UNITS Bn� � T, PI'IlIPl DEVELOPMENT TEAM — — — — — — — — — -..... 11A""El TIA11111 FlIA -IL FlF1' I'L "'I' EN-ElB 11,11411 AlIlITIIT 11 A 1111111 "I" IF,Ise LSF AacLA" 'C'APE 1 N'O'11�14�l L 11, 1 A K I I NN B IA I I 1.NTlFLALl T111 P_ _ 11 Exhibit D - Master Plan LOCATION MAP urban E= desin stuc?(0 U- D n 6 PInq NOUN L.ndcape A -It ... B, FIRE STATION PARCEL 1 of 2 02 09, 2023 ---------- SITE DATA IFN �� ...... ...... N'ENL_ F'N �EBI INTF PANNBT 1.11EP -11 Al 1 -11 IIA P'gP MAGNUSON PROJECT SUMMARY HOUSE cep EA ... P-1 P-I.E. 'AREA' OR Op.='.m.II Inc B, LEms�6r O.lE-IINNl LU IF,, -"Em I 11, 4 111 IN N— I N- I 1114PI NI. ll—_ 11TI1111111. GROSS AREA 115622 5�62 676,946 662,757 'PLATTED PLPROD ECT AREA :3 rvcwoE L='l`LFP="K'FlHL'TLP, , 1 N- L" F cy U_ USEABLE OPEN SPACE CALCULATION GROB,- SIT, ARFRss A z III Ii LIIALNII IELFA Pl.lABl lO 1-111 INAP I 'El III ,1FIZUB11%, I'll I P"""' 0 NOTES IN. PEL I 11 IF NPLITER PLAN PN.PP— B.INEPLIES OT ANN LUPPIELF ElS ILE BRO. - ILE EEI.FNE) PUT( 121 RPOEIF I I PI111D s". -l' ONT _FHE 0 M I— 21 SILL 11 11 111 *1" PPP -1-1 ,lNFJ LET 111BUT PI 11 FIFAAAAL PLO PINIFIN, LF'E.':AN'N 0F'NFBP Z.�B1I I �ION,TON.ONlPlAN_�l 1�91PENIEPE11:- P-1 LIN 11 l 2 11 51111 1 PHASE I A AN, N UI. N011 F 4 PEP(S) LLF OF 0PAPOEO ON P-PBB 4 511B 'NUBA... ON ME APP-1—AND F—E.T I FILE PIN PPPN—LS ANN LE.NUN. IFR�r Pl- ANO -111T I FILION.1 I III N - 9l III, III PI—F-LLK =_N_ FlIFIAINFRIPPIFLIT. NORTH 121 -NI I LEGEND 11 1111EPH NIPIIAL - 11 11 TO , tN)1111 IT 11`1111 IFILL BE *111 11111LI ONILL —111 FTIMI IF III PLAN IRPLIOPIII OT UPILIFF PIRS IIEL BE IBIONAID UNDLEBOOPNO SUBJECI 10 11 All MSP -1 of 2 -ND Exhibit D - Master Plan 2 of 2 02 09, 2023 -- -- --- ---- ------- ------ -------------- PARKING - SPA - CES REWIRED ------------- �FUSE SJ -Sp NCES Boynton Beach Town Square Master Plan (MPMD 23-004) Conditions of Approval Page 1 of 5 EXHIBIT E Conditions of Approval Project Name: Boynton Beach Town Square Master Plan File number: MPMD 23-004 Reference: Major Master Plan Modification with the February 09, 2023 Planning and Zoning Department date stamp marking. DEPARTMENTS INCLUDE I REJECT ENGINEERING 1. Provide written statement that applicant/owner has received, understands and acknowledges the requirements outlined in the Standard DART Comments of the City of Boynton Beach X Department of Public Works, Utilities, and Engineering Division, attached hereto. 2. The Right -of -Way for NE 1St Ave, NE/SE 1St Street, and SE 1St Ave shall be dedicated as follows: • 5 ft along the west side of SE 1 st Street to provide a total of 25 ft right-of-way measured from the centerline between Boynton Beach Blvd and SE 2nd Ave (the area between E Ocean Ave and SE 1 st Ave is excluded). • 40 ft land dedication on the south side of Parcel 2 aligned with X and centered on the existing NE 1st Avenue right-of-way, Tract R1. • 8 ft land dedication on the north side of Parcel 7 between Seacrest Boulevard and the west end of the existing SE 1 st Ave right-of-way to provide a total of 20 ft right-of-way measured from the centerline of existing SE 1 st Ave. 3. A 25 ft corner chord dedication shall be provided at the intersection of Boynton Beach Blvd and NE 1St Street. Corner chord dedications at other intersections shall be provided as warranted and can be X less than 25 ft as accommodated by building design. 4. The City and Developer shall work together to align driveways on both the proposed project site and existing driveway to Children's X Museum playground/Community Center parking lot. 5. A discussion with FDOT is suggested to obtain conceptual approval of a traffic signal at Boynton Beach Boulevard & SE/NE 1st Street. X If a signal is allowed: C:\Program Files (x86)\neevia.com\docConverterPro\temp\NVDC\E667672F-D292-4EAE-868F-BABEDF152FC0\Boynton Beach.37135.1.Exhibit_E= _COA_M P M D_23-004_for_022123_CC_H ea r i n g. d ocx Page 435 of 971 Boynton Beach Town Square Master Plan (MPMD 23-004) Conditions of Approval Page 2 of 5 DEPARTMENTS I INCLUDE I REJECT • The City will require a pro rata cost share for the signal, should a signal be warranted within two (2) years of the final certificate of occupancy (CO) being issued for phase 3. • The intersection of NE 1St Ave and NE 1St St should become a 2 -way stop (ENV), and • The eastbound approach of the intersection of NE 1St Ave at NE 1St St will be modified to include the following lane configuration: 1 eastbound shared through -left lane and 1 eastbound right -turn lane. The right-of-way dedication required for the additional lane will be taken from the hotel parcel on the south side of NE 1St Avenue. 6. The intersection of Seacrest & NE 1st Avenue will be restricted to right-in/right-out; a physical barrier on NE 1St Ave and/or Seacrest X Blvd shall be provided. 7. A southbound right turn lane shall be provided at NE 1St Ave on NW 1St St., or provide a queuing analysis and request an X engineering waiver. UTILITIES 8. Water and wastewater plants have capacity to serve this site. Upgrades to existing infrastructure immediately adjacent to the subject sites and specifically serving the project would be the X responsibility of the developer. 9. Utility connections shall be restricted to water and sanitary sewer pipelines that were installed with the City Hall Town Square redevelopment project. All sanitary sewer for this project is to be X directed to the lift station constructed with City Hall. 10. Potable water infrastructure is available on site and water main stub outs are available as indicated on the provided as -built drawings. The proposed Phase 3 - North Residential/Commercial building eliminates the route of the 12 -inch PVC C-900 water main that is X required to loop the water main per the existing as -built drawings. It is the responsibility of the Developer to complete water main loop within a dedicated 12 ft. utility easement or public right-of-way. 11. It is the responsibility of the Developer to make the necessary water service line connections to each building for the Phase 2 — South Residential/Commercial building and Phase 3 - North X Residential/Commercial building. 12. At the time of permitting, provide fire flow calculations to X demonstrate a minimum fire flow of 3,000 gallons per minute (gpm) C:\Program Files (x86)\neevia.com\docConverterPro\temp\NVDC\E667672F-D292-4EAE-868F-BABEDF152FC0\Boynton Beach.37135.1.Exhibit_E= _COA_M P M D_23-004_for_022123_CC_H ea r i n g. d ocx Page 436 of 971 Boynton Beach Town Square Master Plan (MPMD 23-004) Conditions of Approval Page 3 of 5 DEPARTMENTS I INCLUDE I REJECT with 20 psi residual pressure per the City's Code of Ordinances for high-rise buildings, as stated in the 2010 LDR, Chapter 4, Article VIII, Section 3.B.2.d., or the requirement imposed by insurance underwriters, whichever is greater (Code of Ordinances, Section 26-16(b)). If flow does not meet required minimum data points, a fire pump will be required. 13. A fire hydrant shall be located within 100 ft. of each Fire Department Connection (FDC), along access roadways with all-weather driving surfaces, distance measured as the fire track travels. Fire hydrant X spacing shall provide coverage within a 200 ft. radius to all points of each building. 14. Fire hydrants shall be placed in an accessible, unobstructed location with 5 feet clearance in all directions. Bollards and a 6" raised curb may be required if the minimum distance cannot be X met. 15. Appropriate backflow preventer(s) are required on the domestic water service lines to the building, and all fire lines shall be in X accordance with the Code of Ordinances, Section 26-207. 16. The residential and commercial buildings shall be metered separately. At the time of permitting, the meter sizes and locations X shall be shown on the engineering drawings. 17. Sanitary sewer mains are available as indicated on the provided as -built drawings. It is the responsibility of the Developer to make X the necessary sewer lateral connections to serve each building. 18. The existing wastewater lift station is shown on the provided as - built drawings. At the time of permitting, detailed engineering calculations for wastewater demand shall be submitted for review by Utilities. Any Upgrades that are required to the existing lift station X shall be limited to the pumps and associated or controls and will be the responsibility of the Developer. 19. Grease interceptors are required for all proposed restaurants in the commercial space. At time of permitting, detailed engineering shall X be submitted to demonstrate the capacity of grease interceptors. 20. On-site stormwater drainage infrastructure is available on site. At the time of permitting, pre -development and post -development stormwater calculations shall be submitted for review by Utilities X and Public Works/Engineering. C:\Program Files (x86)\neevia.com\docConverterPro\temp\NVDC\E667672F-D292-4EAE-868F-BABEDF152FC0\Boynton Beach.37135.1.Exhibit_E= _COA_M P M D_23-004_for_022123_CC_H ea r i n g. d ocx Page 437 of 971 Boynton Beach Town Square Master Plan (MPMD 23-004) Conditions of Approval Page 4 of 5 DEPARTMENTS I INCLUDE I REJECT 21. Reclaimed water infrastructure is available on site for irrigation. It is the responsibility of the Developer to make the necessary X connections for landscape irrigation. 22. Per the City's Code of Ordinances, water and sewer capital facilities charges (cap fees) must be paid prior to Utilities signing X the DEP/PBC Health Department permit applications. PLANNING AND ZONING 23. The subject application is contingent on the applicant's participation in the City's Workforce Housing Program. X 24. Provide an executed and recorded Development Agreement. X 25. Replat of the Master Plan area is required prior to approval of any permit for the site. X 26. Provide the net area of each parcel, and revise the Maximum Building Area according to the net area on sheet MSP -1. The Maximum Building Area shall be tabulated based on the net area X of each parcel. 27. Provide documentation indicating the completed land exchange between the City and JKM BTS North Parcel. The City is to gain ownership of the parcel located at the northwest corner of Ocean Avenue and NE 1St Street (Approximately 1.2 acres, Parcel No. 08434528480030030) in exchange for the property located at the X southeast corner of E. Boynton Beach Boulevard and N. Seacrest Blvd (Approximately 1.1 acres, Parcel No. 08434528480010020 & 08434528480010010). 28. Prior to approval of this Major Master Plan Modification application, text amendments of the Land Development Regulations (LDRs) for the City's Workforce Housing Program (CDRV 23-001), and the process and criteria establishment for Development Agreements X (CDRV 23-003) shall be approved by the City Commission, or this application shall comply with the existing regulations. 29. Provide required parking calculations for the residential units. Pursuant to Part III, Chapter 4, Article V, Section 3. B. Table 4-17. Residential and Lodging Uses, 1,555 parking spaces are required for residential units proposed in North and South Parcels. The X applicant is proposing 1,333 parking spaces for the units through participation in sustainability, pursuant to Part III, Chapter 4, Article V, Section 3. G, Parking Reductions for Sustainability. The C:\Program Files (x86)\neevia.com\docConverterPro\temp\NVDC\E667672F-D292-4EAE-868F-BABEDF152FC0\Boynton Beach.37135.1.Exhibit_E= _COA_M P M D_23-004_for_022123_CC_H ea r i n g. d ocx Page 438 of 971 Boynton Beach Town Square Master Plan (MPMD 23-004) Conditions of Approval Page 5 of 5 DEPARTMENTS I INCLUDE I REJECT requested parking rate reduction is conditioned on the Site Plan approval. 30. Correct the parking spaces for City Lease Spaces and residential units provided in the Phase 2 and 3 parking garages on MSP -2. X 31. Use(s) of Phase 4, AKA Central Parcel, are estimated for this Major Master Plan Modification application (MPMD 23-004) and subject to change at the discretion of the City. The uses shall be X comparable to the existing proposal or the proposed use may be up to an equivalent intensity. 32. Prior to Site Plan Approval, a traffic study and plan must be approved by the City Engineering Division. X PLANNING & DEVELOPMENT BOARD CONDITIONS Comments: None CITY COMMISSION CONDITIONS Comments: To be determined. C:\Program Files (x86)\neevia.com\docConverterPro\temp\NVDC\E667672F-D292-4EAE-868F-BABEDF152FC0\Boynton Beach.37135.1.Exhibit_E= _COA_M P M D_23-004_for_022123_CC_H ea r i n g. d ocx Page 439 of 971 m„ DEVELOPMENT ORDER OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA s PROJECT NAME: Town Square Master Plan (MPMD 23-004) APPLICANT: Time Equities, INC. APPLICANT'S ADDRESS: 555 1h Ave, 15th Floor, Suite 105, New York, New York 10003 DATE OF HEARING RATIFICATION BEFORE CITY COMMISSION: February 21, 2023 APPROVAL SOUGHT: Approval of a Major Master Plan Modification (MPMD 23-004) application to amend the number of buildable dwelling units, the project phasing, and changes to the commercial use areas on a 15.52 -acre site. LOCATION OF PROPERTY: The subject properties bounded by Seacrest Boulevard to the west, NE/SE 1st Street to the east, Boynton Beach Boulevard to the north, and SE 2nd Avenue to the south. DRAWING(S): SEE EXHIBIT "D" ATTACHED HERETO THIS MATTER was presented to the City Commission of the City of Boynton Beach, Florida on the date of hearing stated above. The City Commission having considered the approval sought by the applicant and heard testimony from the applicant, members of city administrative staff and the public finds as follows: Application for the approval sought was made by the Applicant in a manner consistent with the requirements of the City's Land Development Regulations. 2. The Applicant X HAS HAS NOT established by substantial competent evidence a basis for the approval requested. 3. The conditions for development requested by the Applicant, administrative staff, or suggested by the public and supported by substantial competent evidence are as set forth on Exhibit "E" with notation "Included." 4. The Applicant's request is hereby X GRANTED subject to the conditions referenced in paragraph 3 above. DENIED 5. This Order shall take effect immediately upon issuance by the City Clerk. 6. All further development on the property shall be made in accordance with the terms and conditions of this order. 7. Other: DATED: City Clerk CAProgram Files (x86)\neevia.com\docConverterPro\temp\NVDC\A5F9D645-3E3F-44CD-B2D8-42E6508ADB37\Boynton Beach. 37134.1.MPMD_23- 004_Development_Order.docx Page 440 of 971 E:11i Public Hearing 2/21/2023 Requested Action by Commission: Proposed Resolution No. R23-022- Approve and authorize the Mayor to sign the Temporary Parking Easement Agreements and all documents associated therewith between the City of Boynton Beach and Boynton Beach Town Center Apartments, LLC. Explanation of Request: The Temporary Parking Easement Agreements (North and Central) will permit the City to continue using the temporary parking it currently uses until the Continuing Parking Agreement takes effect. How will this affect city programs or services? The Temporary Parking Easement Agreements (North and Central) will permit parking by City employees and the public in the same manner as now until the permanent parking is constructed Fiscal Impact: None Alternatives: Not approve, in which case the City Commission will need to determine how to address temporary parking until permanent parking is available. Strategic Plan: Transportation and Mobility , High Performing Organization Strategic Plan Application: Parking is necessary for City employees and the public using City Hall and nearby Town Square facilities Climate Action Application: Is this a grant? Grant Amount: Attachments: Page 441 of 971 Type Ag ir'EsE) rTIE) II'l t Ag ir'EsE) rTIE) II'l t Description IRE)SOkAboin appiroviing Tbirnpoirairy IFlairllcliir g �EaSE�lirTIEsii'itAgir'EsEsirTIEsll'itE, (inorth aind CE)intir'4l Ipa irt2flS) Wth BoyintoinBE�,ach Tbwn CENI'AE)r Apartirm�llllts, I . I C. Tb,irnpoirairy IFlairllcliirg IEaSE�lirTIEsll'ItAgir'EsEsirTIEsll'It North Flairt2fl Tb,irnpoirairy IFlarllcliirg IEaSE�lirTIEsll'ItAgir'EsEsirTIEsll'It CE)intir'4I IC lairt2fl Page 442 of 971 I RESOLUTION R23-022 2 3 A RESOLUTION OF THE CITY OF BOYNTON BEACH, FLORIDA, 4 APPROVING AND AUTHORIZING THE MAYOR TO SIGN THE 5 TEMPORARY PARKING EASEMENT AGREEMENTS AND ANY 6 AND ALL DOCUMENTS ASSOCIATED THEREWITH BETWEEN 7 THE CITY OF BOYNTON BEACH AND BOYNTON BEACH 8 TOWN CENTER APARTMENTS, LLC; AND PROVIDING AN 9 EFFECTIVE DATE. 10 11 WHEREAS, the Temporary Parking Easement Agreements (North and Central parcel) 12 will permit the City to continue using the temporary parking it currently uses until the 13 Continuing Parking Agreement takes effect; and 14 WHEREAS, the Temporary Parking Easement Agreements will permit parking by City 15 employees and the public in the same manner as now until the permanent parking is 16 constructed; and 17 WHEREAS, the City Commission has determined that it is in the best interests of the 18 residents of the City to approve and authorize the Mayor to sign the Temporary Parking 19 Easement Agreements and any and all documents associated therewith between the City of 20 Boynton Beach and Boynton Beach Town Center Apartments, LLC. 21 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF 22 BOYNTON BEACH, FLORIDA, THAT: 23 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as 24 being true and correct and are hereby made a specific part of this Resolution upon adoption 25 hereof. 26 Section 2. The City Commission hereby approves and authorizes the Mayor to 27 sign the Temporary Parking Easement Agreements and any and all documents associated 28 therewith between the City of Boynton Beach and Boynton Beach Town Center Apartments, 29 LLC. Copies of the Temporary Parking Easement Agreements are attached hereto and 30 incorporated herein by reference as Exhibit "A" (North parcel) and Exhibit "B" (Central parcel). 31 Section 3. This Resolution shall become effective immediately upon passage. 32 33 34 S:ACA\RESO\Agreements\Approve Temporary Parking Easement Agreement With BBTCA - Reso.Docx Page 443 of 971 35 PASSED AND ADOPTED this 21 st day of February, 2023. 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 CITY OF BOYNTON BEACH, FLORIDA Mayor — Ty Penserga Vice Mayor —Angela Cruz Commissioner — Woodrow L. Hay Commissioner — Thomas Turkin Commissioner —Aimee Kelley ATTEST: VOTE Maylee De Jesus, MPA, MMC Ty Penserga City Clerk Mayor (Corporate Seal) YES NO APPROVED AS TO FORM: Michael D. Cirullo, Jr. City Attorney S:ACA\RESO\Agreements\Approve Temporary Parking Easement Agreement With BBTCA - Reso.Docx Page 444 of 971 TEMPORARY PARKING EASEMENT AGREEMENT (NORTH PARCEL) THIS TEMPORARY PARKING EASEMENT AGREEMENT (this "Easement") is made and executed as of , 2023, by and between Boynton Beach Town Center Apartments, LLC, a Florida limited liability company, C/O Time Equities, Inc. 55 Fifth Avenue, 15th Floor New York, NY 10003 ("Grantor") and The City of Boynton Beach, Florida, a political subdivision of the State of Florida, 100 East Ocean Avenue, Boynton Beach, FL 33435 ("City"). WITNESSETH: WHEREAS, Grantor and the City are entering into a Development Agreement ("Development Agreement") on a date even with the Effective Date (defined below), and Grantor is, or shall be on the Effective Date, the owner of certain property located in Boynton Beach, Palm Beach County, Florida described on Exhibit "A" attached hereto and made a part hereof (the "Grantor Property"); and WHEREAS, as of the date first mentioned above, the City is the beneficiary of certain recorded Temporary Parking Easement Agreements with JKM BTS Central, LLC, JKM BTS Capital, LLC, and JKM BTS North, LLC, (collectively, "JKM") recorded in Palm Beach County Official Record Book 31962, Page 1449 and Book 31962, Page 1434 (together, the "Existing Temporary Parking Easements"); and WHEREAS, Grantor intends to purchase the Grantor Property from JKM; and WHEREAS, it is the desire of Grantor and the City to terminate the Existing Temporary Parking Easements and simultaneously enter into this Easement, and enter into a like easement on certain other property known as the "Central Parcel"; and WHEREAS, the Grantor Property is the subject of a Development Agreement which contemplates development of a mixed-use project, together with a parking structure (the "Project"), and which, once constructed, is intended to be occupied by tenants to reside or conduct business therein and shall provide permanent parking to the City therein pursuant to a separate continuing parking lease agreement; WHEREAS, the temporary parking spaces provided by this Easement, along with a like easement with Grantor over the Central Parcel, are intended to satisfy the temporary parking which Grantor may hereafter be required to provide to the City with respect to the parking structure (the "North Garage") contemplated for construction upon certain property located in Boynton Beach, Palm Beach County, Florida described on Exhibit "B" attached hereto and made a part hereof (the "North Parcel") pursuant to the Development Agreement, 01889329-1 Page 445 of 971 without releasing or modifying any of Grantor's other contingent obligations to provide temporary parking as referenced therein; and WHEREAS, Grantor desires to establish, create and grant for the benefit of, and as a burden upon, the Grantor Property, a temporary exclusive easement for use by City over and across the portion of the Grantor Property as described in Exhibit "C" attached hereto and made a part hereof (the "Easement Property") for the purposes and upon the terms and conditions as set forth herein, for the benefit of City; the Easement Property, together, if separately agreed in writing by City and Grantor, with an easement across adjacent property owned by another affiliate of Grantor (the "Adjacent Property") or any alternative parking arranged at another location (any such location or locations, collectively, "Alternative Property") by Grantor with the consent of City (which consent shall not be unreasonably withheld), is intended to provide at least 198 parking spaces for use by the City as set forth in this Easement; and NOW, THEREFORE, in consideration of the mutual covenants and agreements heretofore made, and in satisfaction of the requirement to provide temporary parking under the Development Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties hereto, Grantor and City hereby agree as follows: 1. Recitals. The foregoing recitals are true and correct and are hereby incorporated into this Easement by reference in their entirety. 2. Parking Easement. a. Parking Easement. Grantor hereby establishes, creates and grants to the City a temporary, exclusive easement for parking on the parking areas constructed and existing from time to time within the Easement Property and for the existing road and driveway used to access the parking areas (the "Parking Easement"). Grantor establishes, creates and grants the Parking Easement for City to use, without payment of any fee or charge, the Easement Property for the intended purposes as set forth in this Easement. For the avoidance of doubt, the Parking Easement only includes the Easement Property and does not include any right to use or enter upon any portion of the Grantor Property outside of the Easement Property. This Easement shall become effective upon the execution of this Easement by both parties and Grantor's closing on the Grantor Property ("Effective Date"). This Easement shall be recorded in the Public Records of Palm Beach County, Florida. b. Right to Modify, Remove or Relocate Parking Easements. Grantor shall have the right, at any time and from time to time, upon 90 days prior written notice to City, to modify, remove and relocate all or any portion of the Parking Easement described herein to another location, with the consent of the City (which consent shall not be unreasonably withheld, conditioned, or delayed), within the Grantor Property (or to an Alternative Property owned by Grantor or 01889329-1 Page 446 of 971 to an Alternative Property procured via acquisition, lease, or other possessory interest by Grantor), provided in all events that the City is provided the use of at least 300 spaces when taking into account spaces provided by or procured by Grantor or its affiliates at the Grantor Property, the Adjacent Property, and any Alternative Property. For purposes of this Easement, it is anticipated that in the event a modification, removal, or relocation of the Parking Easement results in the parking area being located more than .25 miles from the entrance to City Hall (measured from the point in the parking area closest to City Hall to the entrance doorway to City Hall), the City may condition its consent for such modification, removal, or relocation on Grantor's provision of shuttle service from the parking area to City Hall. c. Termination. The Parking Easement shall be terminated, upon at least ten (10) business days prior written notice, at such time construction of the North Garage is complete and a certificate of occupancy (or equivalent certification) has been issued for the same, or at such time as Grantor shall have provided (either itself, through one of its affiliates, or through a third party) alternative parking arrangements consented to by the City (which consent shall not be unreasonably withheld) until such time as the North Garage can be completed. Following termination of the Parking Easement and provided alternative parking has been provided subject to terms and conditions reasonably comparable to those set forth in this Easement, City shall cease using the Easement Property for parking, and the City will enter into an agreement terminating this Easement and all rights hereunder. d. No Assignment or Transfer. The Parking Easement may not be assigned or transferred by City. Any attempted assignment or transfer of the Parking Easement or any rights granted herein shall be null and void and shall be deemed a violation of the Parking Easement. Grantor may assign this Easement to its affiliate without City's consent, provided that Grantor shall provide City not less than 30 days' advance written notice of such assignment, provided such assignment is for the whole of this Easement. 3. Prohibited Use. The intended use of the Easement Property is for parking of typical passenger vehicles by City employees, their invitees, and the general public in connection with business with the City or attending civic events; for the avoidance of doubt, the City shall not use or park any heavy equipment, buses, recreational vehicles, or other oversized vehicles within the Easement Property. The City will use its best efforts to prohibit or limit any use not consistent with the intended use. The City will not use the Easement Property to stage any civic or social events, City shall be prohibited from using the Easement Property in violation of any law or for any purpose other than use of the Parking Easement. The City will establish and enforce reasonable restrictions assure that minors less than 12 years of age are permitted on the easement property only when accompanied by an adult and that animals are prohibited on the easement property except when on leash or other physical halter. The City will mark or sign the walkways from the parking lots to City facilities to enhance safety and minimize foot -traffic movement onto adjacent Grantor properties. Subject to applicable governmental requirements and approvals, and with the consent of City (which consent shall 01889329-1 Page 447 of 971 not be unreasonably withheld), Grantor may post signs on the Grantor Property and/or the Easement Property setting forth the rules and restrictions for the use of the Easement Property consistent with the terms of this Easement, and the prohibition of use of portions of the Grantor Property other than the Easement Property. 4. Use by Grantor. Grantor may continue to use the Easement Property and all other portions of the Grantor Property for any lawful purposes that do not unreasonably interfere with the easement rights granted herein, including the right to improve the easement areas, which improvements may include parking, paving, sidewalks, lighting, landscaping, green spaces, recreational areas, drive aisles for motor -vehicles, and construction of the Project (including, without limitation, installation of staging areas). City shall not interfere in any manner with Grantor's operations and activities upon the Easement Property. 5. Maintenance. a. Definition of Maintenance Obligations. The term "Maintenance Obligations" means any and all obligations to maintain, safeguard, upkeep, operate, repair, replace and remove the parking areas so that the Easement Property and the Grantor Property remain reasonably safe for the parking of vehicles and the access to such vehicles by their operators. b. City Duties. The City will keep the parking area free of debris. The City is responsible for the repair of any damage caused by the storage or operation of City heavy equipment, buses, recreational vehicles, or other oversized vehicles on the Easement Property. c. No City Duty. The City has no duty to remove or pay for removal of the temporary parking improvements when the temporary use ends. d. Performance. Subject to Sections 5(a) and (b), Grantor shall be responsible to perform all Maintenance Obligations as reasonably necessary and reasonably required hereby on or at the Easement Property. e. Standard of Care. To the extent required to be performed by each of the parties hereto as set forth in this Easement, all Maintenance Obligations shall be performed in a good and workmanlike manner, and in compliance in all respects with all applicable laws, rules, regulations and ordinances of all governmental authorities having jurisdiction over the Grantor Property or the Easement Property. 6. No Duties of Grantor. Grantor and its members, managers, lenders (including any lender with a mortgage upon the Grantor Property), attorneys, employees, and agents (together, the "Grantor Parties") shall not have any duty to City whatsoever with respect to the Parking Easement or the Easement Property, including no duty to provide to City any services whatsoever, except infrastructure maintenance as required by, and subject to those limitations set forth in, Section 5 and any conditions imposed by the City in exchange for the City's consent to modify, remove, or relocate the Parking Easement. Furthermore, Grantor Parties shall not have any duty to City or any of City's employees, agents, 01889329-1 Page 448 of 971 contractors, guests, or invitees to provide security or to monitor the Grantor Property or the Easement Property in order to protect against injury to any person or to safeguard or protect any vehicles or personal property of any such parties. Grantor shall not have any liability whatsoever for any injury to any person or for any lost, stolen, or damaged property to City or any of City's employees, agents, contractors, guests, or invitees. City and City's employees, agents, contractors, guests, and invitees assume all risk of injury to any person and loss (including, but not limited to theft) and damage to any of their respective vehicles or other personal property, and City, on its own behalf and on behalf of City's employees, agents, contractors, guests, or invitees, agrees to hold Grantor harmless from and against any and all damages in connection with the Parking Easement including, but not limited to, consequential damages, arising with respect to the matters set forth in this Easement. Grantor Parties shall not have any obligation to assist (or to cause their employees or agents to assist) City in collecting and/or removing any vehicles or personal property of City or other Party from the Easement Property after the Parking Easement has been terminated. Any vehicles or personal property left on the Easement Property after termination of the Parking Easement shall be deemed to have been abandoned, and Grantor may remove any such vehicles or personal property from the Easement Property without any obligation to account to City or any other party with respect thereto. 7. Indemnification. City agrees to indemnify and hold harmless Grantor Parties from and against any damage, cost, or liability to the Grantor Parties or the Grantor Parties' property (including the Grantor Property) caused by the use of the Parking Easement granted herein or the exercise of any rights granted in connection with the Parking Easement, unless such damage, cost or expense was caused by a failure of Grantor to maintain the infrastructure as required by Section 5 or the negligence or willful misconduct of the Grantor Party. Nothing in this paragraph shall be interpreted as a waiver of City's sovereign immunity or the limitations of liability set forth in Sec. 768.28, Florida Statutes. 8. Default. a. Default. If City shall be in default under any of the obligations applicable to it as set forth in this Easement for 72 hours after receipt of written notice of default (or such lesser time in the event of an emergency) given by Grantor, or if such default shall be of such a nature that the same cannot practicably be cured within such 72 hour period and City shall not within such period commence the curing of such default and thereafter with due diligence complete the curing of such default, then Grantor may take appropriate steps to cure such default. City shall, following the demand (which shall be accompanied by appropriate supporting documentation), reimburse the Grantor for the City's share of the costs and expenses reasonably paid or incurred by Grantor in the exercise of such rights necessary to cure City's default. Amounts unpaid by City more than 45 days after such demand shall accrue interest at a rate of 10% per annum. b. Standard of Care for Self -Help. Any acts which the Grantor shall perform or cause to be performed in exercise of its self-help and cure rights under this Section 8 shall be performed with the same standards of care, diligence and workmanship as if such 01889329-1 Page 449 of 971 acts were being performed or caused to be performed by City pursuant to its obligations or duties hereunder. c. In the event of a default by City that continues beyond the notice and cure periods herein, Owner shall have the right to bring an action against City for damages or specific performance, as appropriate. 9. Estoppel Certificate. City shall, without charge, at any time, and from time to time, within ten (10) days after request therefor, certify by written instrument duly executed, acknowledged and delivered to or for the benefit of any existing or prospective tenant, buyer, or mortgagee of the Grantor Property (or any portion thereof), specify: a. That this Easement is unmodified and in full force and effect (or if there has been a modification, that the Easement is in full force and effect as modified and stating the modification); b. Whether or not there are any existing defaults under this Easement and if so, specifying such defaults; and c. Such other pertinent information as the requesting party may reasonably request. 10. Insurance. City, at its sole expense, shall maintain a reasonable program of self- insurance or shall otherwise obtain insurance coverages, as described in Exhibit "D", 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); upon Grantor's request, City shall provide to Grantor a copy of each such policy or a certificate of insurance. Furthermore, any policy of insurance maintained by City in connection with the Easement 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 the City's election to self -insure as to any risks in connection with the Easement Property) limit the liability of City under this Easement. 11. Miscellaneous. a. The intended and primary use of the Easement Property is to provide parking for City employees, City invitees, and the general public, and such use will have priority over other uses unless a like number and quality of alternative parking is provided at a location reasonably agreed to by the City in accordance with the terms of this Easement. The exercise of the rights and privileges granted hereby shall be exercised in a manner which does not unreasonably interfere with or disrupt the normal use, business or occupation of the Project or any improvements located or to be located on the Grantor Property or the Easement Property. 01889329-1 Page 450 of 971 b. All provisions of this Easement and the easement rights hereunder shall run with the land and shall be binding upon Grantor and its successors and assigns. The Grantor Property shall hereafter be held, sold, conveyed, operated and leased subject to the easements, restrictions, covenants and conditions contained in this Easement. c. All notices, demands, requests or other communications required hereunder shall be in writing and sent by recognized express courier (such as FedEx or United Parcel Service) or via United States registered, certified mail, postage prepaid, return receipt requested, addressed to each party hereto, as the case may be, at the address first hereinabove provided or such other address as any party may from time to time designate in writing to the other. d. This Easement shall be governed by and construed in accordance with the laws of the State of Florida. Venue of any litigation or administrative proceeding shall be exclusively in Palm Beach County, Florida. The prevailing party in any litigation arising from the terms of this Easement shall be entitled to recover its reasonable attorneys' fees, both at trial and on appeal, as well as court costs, from the non - prevailing party. e. The captions used in this Easement are solely for the convenience of reference and shall not in any way limit or amplify the terms and provisions hereof. f. This Easement may be executed in counterparts, each of which will be deemed an original as against any party whose signature appears hereon, and all of which shall constitute one and the same agreement. g. This Easement may not be terminated, modified or amended except as provided herein or as otherwise agreed to in a written document executed by the parties hereto or their respective successors in interest. h. Any invalidity of any of the terms and conditions or provision of this Easement by judgment, court order or otherwise shall not affect any of the other terms, conditions or provisions of this Easement. i. A like Easement Agreement will be executed contemporaneously with this Agreement by the parties to address additional temporary parking on the Central Parcel. j. City shall not be liable or responsible to Grantor beyond the monetary limits specified in Ch. 768.28, Fla. Stat., regardless of whether said liability be based in tort, contract, indemnity or otherwise; and in no event shall City be liable to Grantor for punitive or exemplary damages or for lost profits or consequential damages. k. City and Grantor hereby acknowledge and confirm that the Existing Temporary Parking Easements shall be terminated and become null and void and of no further force or effect simultaneous with the Effective Date. 01889329-1 Page 451 of 971 [SIGNATURES AND ACKNOWLEDGEMENTS APPEAR ON THE FOLLOWING PAGES] 01889329-1 Page 452 of 971 IN WITNESS WHEREOF the parties hereto have caused these presents to be executed. CITY OF BOYNTON BEACH ATTEST: Un City Clerk Mayor, Ty Penserga Address: Witness: Printed Name: APPROVED AS TO FORM: City Attorney STATE OF FLORIDA } COUNTY OF PALM BEACH } The foregoing instrument was acknowledged before me this day of , 2022, by , as Mayor of the CITY OF BOYNTON BEACH, a municipal corporation of the State of Florida. He/she appeared before me ❑ in person or ❑ electronically and is personally known to me or has produced as identification. Commission Expires: 01889329-1 Page 453 of 971 Signed, sealed and delivered: DEVELOPER: BOYNTON BEACH TOWN CENTER APARTMENTS, LLC, a Florida limited liablity company Witness: By: Printed Name: Witness Dated: Printed Name: STATE OF ) SS COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2022, by of BOYNTON BEACH TOWN CENTER APARTMENTS, LLC, a Florida limited liablity company. He or she is appeared before me ❑ in person or ❑ electronically and is: [ ] personally known to me, or [ ] produced identification. Type of identification produced (Seal) My commission expires: 01889329-1 NOTARY PUBLIC: Print Name: Page 454 of 971 EXHIBIT "A" LEGAL DESCRIPTION OF GRANTOR PROPERTY Parcel 2, Boynton Beach Town Square, according to the plat thereof as recorded in Plat Book 127, Page 1, Public Records of Palm Beach County, Florida. 01889329-1 Page 455 of 971 EXHIBIT "B" LEGAL DESCRIPTION OF SOUTH PARCEL Parcel 7, Boynton Beach Town Square, according to the plat thereof as recorded in Plat Book 127, Page 1, Public Records of Palm Beach County, Florida. 01889329-1 Page 456 of 971 EXHIBIT "C" LEGAL DESCRIPTION OF EASEMENT PROPERTY A parcel of landing being a portion of Parcel 2, BOYNTON BEACH TOWN SQUARE, according to the Plat thereof as recorded in Plat Book 127, Page 1 of the Public Records of Palm Beach County, Florida. Being more particularly described as follows: Commencing at the Southwest corner of said Parcel 2; Thence North 00°20'03" West (as a basis of bearings) along the Westernmost West line of said Parcel 2, a distance of 30.30' to the POINT OF BEGINNING; Thence continue North 00° 20'03" West along said Westernmost West line, a distance of 24.00 feet; Thence North 89° 40'29" East, a distance of 29.40 feet to a point lying 5.00 feet East of and parallel with (as measured at right angles) the Easternmost West line of said Parcel 2; Thence North 00° 19'56" West along said parallel line, a distance of 262.00 feet; Thence North 89° 40'29" East, a distance of 247.13 feet; Thence North 00° 19' 31" West, a distance of 16.47 feet to a point being on the North line of said Parcel 2; Thence North 89° 16'40" East along said North line, a distance of 33.45 feet; Thence South 00° 19' 31" East, a distance of 21.70 feet to the point of curvature of a circular curve to the right; Thence Southerly and Westerly along the arc of said curve having a radius of 40.00 feet, a central angle of 67°19'05, for a distance of 47.00 feet; Thence South 00° 19'56" East, a distance of 220.09 feet; Thence North 89° 40'29" East, a distance of 161.08 feet to a point being on the East line of said Parcel 2; Thence South 01° 22'45" East along said East line, a distance of 24.00 feet; Thence South 89° 40'29" West, a distance of 15.11 feet; Thence South 00° 20'03" East, a distance of 20.37 feet; Thence South 89° 39'57" West a distance of 56.71 feet; Thence South 00° 20'03" East, a distance of 9.86 feet; Thence South 89° 39'57" West, a distance of 71.32 feet; Note: The proceeding three courses and distance coinciding with the Southern limits of said Parcel 2; Thence North 00° 20'03" West, a distance of 30.25 feet; Thence South 89° 40'29" West, a distance of 303.76 feet to the POINT OF BEGINNING. Said lands situate, lying and being Section 28, Township 45 South, Range 43 East, City of Boynton Beach, Palm Beach County, Florida. Containing 1.89 acres more or less. 01889329-1 Page 457 of 971 EXHIBIT "D" Insurance Coverage Automobile Liabili Bodily injury and property damage liability covering all owned, non -owned and hired automobiles for limits of not less than $500,000 bodily injury each person, each accident and $500,000 property damage, or $500,000 combined single limit each occurrence/aggregate. Commercial General Liability Bodily injury and property damage liability as shall protect the City or Grantor from claims of bodily injury or property damage which arise from the use of the Easement. The amounts of such insurance shall be $2,000,000 per person, $2,000,000 per occurrence, and a general aggregate limit of $5,000,000.00. This insurance shall include coverage for products/completed operation, personal injury liability and contractual liability assumed under the indemnity provision of this Easement. Workers' Compensation Insurance Meeting the statutory requirements of Florida and Employer Liability of $1,000,000 per accident limit, $1,000,000 disease per policy limit, $1,000,000 disease each employee limit, providing coverage for employees and owners. Professional Liability Insurance In an amount of not less than $2,000,000 each claim and $2,000,000 aggregate. 01889329-1 Page 458 of 971 TEMPORARY PARKING EASEMENT AGREEMENT (CENTRAL PARCEL) THIS TEMPORARY PARKING EASEMENT AGREEMENT (this "Easement") is made and executed as of , 2023, by and between Boynton Beach Town Center Apartments, LLC, a Florida limited liability company, C/O Time Equities, Inc. 55 Fifth Avenue, 15th Floor New York, NY 10003 ("Grantor") and The City of Boynton Beach, Florida, a political subdivision of the State of Florida, 100 East Ocean Avenue, Boynton Beach, FL 33435 ("City"). WITNESSETH: WHEREAS, Grantor and the City are entering into a Development Agreement ("Development Agreement") on a date even with the Effective Date (defined below), and Grantor is, or shall be on the Effective Date, the owner of certain property located in Boynton Beach, Palm Beach County, Florida described on Exhibit "A" attached hereto and made a part hereof (the "Grantor Property"); and WHEREAS, as of the date first mentioned above, the City is the beneficiary of certain recorded Temporary Parking Easement Agreements with JKM BTS Central, LLC, JKM BTS Capital, LLC, and JKM BTS North, LLC, (collectively, "JKM") recorded in Palm Beach County Official Record Book 31962, Page 1449 and Book 31962, Page 1434 (together, the "Existing Temporary Parking Easements"); and WHEREAS, Grantor intends to purchase the Grantor Property from JKM; and WHEREAS, it is the desire of Grantor and the City to terminate the Existing Temporary Parking Easements and simultaneously enter into this Easement, and enter into a like easement on certain other property known as the "North Parcel"; and WHEREAS, the Grantor Property is the subject of a Development Agreement which contemplates development of a mixed-use project, together with a parking structure (the "Project"), and which, once constructed, is intended to be occupied by tenants to reside or conduct business therein and shall provide permanent parking to the City therein pursuant to a separate continuing parking lease agreement; WHEREAS, the temporary parking spaces provided by this Easement, along with a like easement with Grantor over the North Parcel, are intended to satisfy the temporary parking which Grantor may hereafter be required to provide to the City with respect to the parking structure (the "South Garage") contemplated for construction upon certain property located in Boynton Beach, Palm Beach County, Florida described on Exhibit "B" attached hereto and made a part hereof (the "South Parcel") pursuant to the Development Agreement, 01889361-1 Page 459 of 971 without releasing or modifying any of Grantor's other contingent obligations to provide temporary parking as referenced therein; and WHEREAS, Grantor desires to establish, create and grant for the benefit of, and as a burden upon, the Grantor Property, a temporary exclusive easement for use by City over and across the portion of the Grantor Property as described in Exhibit "C" attached hereto and made a part hereof (the "Easement Property") for the purposes and upon the terms and conditions as set forth herein, for the benefit of City; the Easement Property, together, if separately agreed in writing by City and Grantor, with an easement across adjacent property owned by another affiliate of Grantor (the "Adjacent Property") or any alternative parking arranged at another location (any such location or locations, collectively, "Alternative Property") by Grantor with the consent of City (which consent shall not be unreasonably withheld), is intended to provide at least 103 parking spaces for use by the City as set forth in this Easement; and NOW, THEREFORE, in consideration of the mutual covenants and agreements heretofore made, and in satisfaction of the requirement to provide temporary parking under the Development Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties hereto, Grantor and City hereby agree as follows: 1. Recitals. The foregoing recitals are true and correct and are hereby incorporated into this Easement by reference in their entirety. 2. Parking Easement. a. Parking Easement. Grantor hereby establishes, creates and grants to the City a temporary, exclusive easement for parking on the parking areas constructed and existing from time to time within the Easement Property and for the existing road and driveway used to access the parking areas (the "Parking Easement"). Grantor establishes, creates and grants the Parking Easement for City to use, without payment of any fee or charge, the Easement Property for the intended purposes as set forth in this Easement. For the avoidance of doubt, the Parking Easement only includes the Easement Property and does not include any right to use or enter upon any portion of the Grantor Property outside of the Easement Property. This Easement shall become effective upon the execution of this Easement by both parties and Grantor's closing on the Grantor Property ("Effective Date"). This Easement shall be recorded in the Public Records of Palm Beach County, Florida. b. Right to Modify, Remove or Relocate Parking Easements. Grantor shall have the right, at any time and from time to time, upon 90 days prior written notice to City, to modify, remove and relocate all or any portion of the Parking Easement described herein to another location, with the consent of the City (which consent shall not be unreasonably withheld, conditioned, or delayed), within the Grantor Property (or to an Alternative Property owned by Grantor or 01889361-1 Page 460 of 971 to an Alternative Property procured via acquisition, lease, or other possessory interest by Grantor), provided in all events that the City is provided the use of at least 300 spaces when taking into account spaces provided by or procured by Grantor or its affiliates at the Grantor Property, the Adjacent Property, and any Alternative Property. For purposes of this Easement, it is anticipated that in the event a modification, removal, or relocation of the Parking Easement results in the parking area being located more than .25 miles from the entrance to City Hall (measured from the point in the parking area closest to City Hall to the entrance doorway to City Hall), the City may condition its consent for such modification, removal, or relocation on Grantor's provision of shuttle service from the parking area to City Hall. c. Termination. The Parking Easement shall be terminated, upon at least ten (10) business days prior written notice, at such time construction of the South Garage is complete and a certificate of occupancy (or equivalent certification) has been issued for the same, or at such time as Grantor shall have provided (either itself, through one of its affiliates, or through a third party) alternative parking arrangements consented to by the City (which consent shall not be unreasonably withheld) until such time as the South Garage can be completed. Following termination of the Parking Easement and provided alternative parking has been provided subject to terms and conditions reasonably comparable to those set forth in this Easement, City shall cease using the Easement Property for parking, and the City will enter into an agreement terminating this Easement and all rights hereunder. d. No Assignment or Transfer. The Parking Easement may not be assigned or transferred by City. Any attempted assignment or transfer of the Parking Easement or any rights granted herein shall be null and void and shall be deemed a violation of the Parking Easement. Grantor may assign this Easement to its affiliate without City's consent, provided that Grantor shall provide City not less than 30 days' advance written notice of such assignment, provided such assignment is for the whole of this Easement. 3. Prohibited Use. The intended use of the Easement Property is for parking of typical passenger vehicles by City employees, their invitees, and the general public in connection with business with the City or attending civic events; for the avoidance of doubt, the City shall not use or park any heavy equipment, buses, recreational vehicles, or other oversized vehicles within the Easement Property. The City will use its best efforts to prohibit or limit any use not consistent with the intended use. The City will not use the Easement Property to stage any civic or social events, City shall be prohibited from using the Easement Property in violation of any law or for any purpose other than use of the Parking Easement. The City will establish and enforce reasonable restrictions assure that minors less than 12 years of age are permitted on the easement property only when accompanied by an adult and that animals are prohibited on the easement property except when on leash or other physical halter. The City will mark or sign the walkways from the parking lots to City facilities to enhance safety and minimize foot -traffic movement onto adjacent Grantor properties. Subject to applicable governmental requirements and approvals, and with the consent of City (which consent shall 01889361-1 Page 461 of 971 not be unreasonably withheld), Grantor may post signs on the Grantor Property and/or the Easement Property setting forth the rules and restrictions for the use of the Easement Property consistent with the terms of this Easement, and the prohibition of use of portions of the Grantor Property other than the Easement Property. 4. Use by Grantor. Grantor may continue to use the Easement Property and all other portions of the Grantor Property for any lawful purposes that do not unreasonably interfere with the easement rights granted herein, including the right to improve the easement areas, which improvements may include parking, paving, sidewalks, lighting, landscaping, green spaces, recreational areas, drive aisles for motor -vehicles, and construction of the Project (including, without limitation, installation of staging areas). City shall not interfere in any manner with Grantor's operations and activities upon the Easement Property. 5. Maintenance. a. Definition of Maintenance Obligations. The term "Maintenance Obligations" means any and all obligations to maintain, safeguard, upkeep, operate, repair, replace and remove the parking areas so that the Easement Property and the Grantor Property remain reasonably safe for the parking of vehicles and the access to such vehicles by their operators. b. City Duties. The City will keep the parking area free of debris. The City is responsible for the repair of any damage caused by the storage or operation of City heavy equipment, buses, recreational vehicles, or other oversized vehicles on the Easement Property. c. No City Duty. The City has no duty to remove or pay for removal of the temporary parking improvements when the temporary use ends. d. Performance. Subject to Sections 5(a) and (b), Grantor shall be responsible to perform all Maintenance Obligations as reasonably necessary and reasonably required hereby on or at the Easement Property. e. Standard of Care. To the extent required to be performed by each of the parties hereto as set forth in this Easement, all Maintenance Obligations shall be performed in a good and workmanlike manner, and in compliance in all respects with all applicable laws, rules, regulations and ordinances of all governmental authorities having jurisdiction over the Grantor Property or the Easement Property. 6. No Duties of Grantor. Grantor and its members, managers, lenders (including any lender with a mortgage upon the Grantor Property), attorneys, employees, and agents (together, the "Grantor Parties") shall not have any duty to City whatsoever with respect to the Parking Easement or the Easement Property, including no duty to provide to City any services whatsoever, except infrastructure maintenance as required by, and subject to those limitations set forth in, Section 5 and any conditions imposed by the City in exchange for the City's consent to modify, remove, or relocate the Parking Easement. Furthermore, Grantor Parties shall not have any duty to City or any of City's employees, agents, 01889361-1 Page 462 of 971 contractors, guests, or invitees to provide security or to monitor the Grantor Property or the Easement Property in order to protect against injury to any person or to safeguard or protect any vehicles or personal property of any such parties. Grantor shall not have any liability whatsoever for any injury to any person or for any lost, stolen, or damaged property to City or any of City's employees, agents, contractors, guests, or invitees. City and City's employees, agents, contractors, guests, and invitees assume all risk of injury to any person and loss (including, but not limited to theft) and damage to any of their respective vehicles or other personal property, and City, on its own behalf and on behalf of City's employees, agents, contractors, guests, or invitees, agrees to hold Grantor harmless from and against any and all damages in connection with the Parking Easement including, but not limited to, consequential damages, arising with respect to the matters set forth in this Easement. Grantor Parties shall not have any obligation to assist (or to cause their employees or agents to assist) City in collecting and/or removing any vehicles or personal property of City or other Party from the Easement Property after the Parking Easement has been terminated. Any vehicles or personal property left on the Easement Property after termination of the Parking Easement shall be deemed to have been abandoned, and Grantor may remove any such vehicles or personal property from the Easement Property without any obligation to account to City or any other party with respect thereto. 7. Indemnification. City agrees to indemnify and hold harmless Grantor Parties from and against any damage, cost, or liability to the Grantor Parties or the Grantor Parties' property (including the Grantor Property) caused by the use of the Parking Easement granted herein or the exercise of any rights granted in connection with the Parking Easement, unless such damage, cost or expense was caused by a failure of Grantor to maintain the infrastructure as required by Section 5 or the negligence or willful misconduct of the Grantor Party. Nothing in this paragraph shall be interpreted as a waiver of City's sovereign immunity or the limitations of liability set forth in Sec. 768.28, Florida Statutes. 8. Default. a. Default. If City shall be in default under any of the obligations applicable to it as set forth in this Easement for 72 hours after receipt of written notice of default (or such lesser time in the event of an emergency) given by Grantor, or if such default shall be of such a nature that the same cannot practicably be cured within such 72 hour period and City shall not within such period commence the curing of such default and thereafter with due diligence complete the curing of such default, then Grantor may take appropriate steps to cure such default. City shall, following the demand (which shall be accompanied by appropriate supporting documentation), reimburse the Grantor for the City's share of the costs and expenses reasonably paid or incurred by Grantor in the exercise of such rights necessary to cure City's default. Amounts unpaid by City more than 45 days after such demand shall accrue interest at a rate of 10% per annum. b. Standard of Care for Self -Help. Any acts which the Grantor shall perform or cause to be performed in exercise of its self-help and cure rights under this Section 8 shall be performed with the same standards of care, diligence and workmanship as if such 01889361-1 Page 463 of 971 acts were being performed or caused to be performed by City pursuant to its obligations or duties hereunder. c. In the event of a default by City that continues beyond the notice and cure periods herein, Owner shall have the right to bring an action against City for damages or specific performance, as appropriate. 9. Estoppel Certificate. City shall, without charge, at any time, and from time to time, within ten (10) days after request therefor, certify by written instrument duly executed, acknowledged and delivered to or for the benefit of any existing or prospective tenant, buyer, or mortgagee of the Grantor Property (or any portion thereof), specify: a. That this Easement is unmodified and in full force and effect (or if there has been a modification, that the Easement is in full force and effect as modified and stating the modification); b. Whether or not there are any existing defaults under this Easement and if so, specifying such defaults; and c. Such other pertinent information as the requesting party may reasonably request. 10. Insurance. City, at its sole expense, shall maintain a reasonable program of self- insurance or shall otherwise obtain insurance coverages, as described in Exhibit "D", 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); upon Grantor's request, City shall provide to Grantor a copy of each such policy or a certificate of insurance. Furthermore, any policy of insurance maintained by City in connection with the Easement 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 the City's election to self -insure as to any risks in connection with the Easement Property) limit the liability of City under this Easement. 11. Miscellaneous. a. The intended and primary use of the Easement Property is to provide parking for City employees, City invitees, and the general public, and such use will have priority over other uses unless a like number and quality of alternative parking is provided at a location reasonably agreed to by the City in accordance with the terms of this Easement. The exercise of the rights and privileges granted hereby shall be exercised in a manner which does not unreasonably interfere with or disrupt the normal use, business or occupation of the Project or any improvements located or to be located on the Grantor Property or the Easement Property. 01889361-1 Page 464 of 971 b. All provisions of this Easement and the easement rights hereunder shall run with the land and shall be binding upon Grantor and its successors and assigns. The Grantor Property shall hereafter be held, sold, conveyed, operated and leased subject to the easements, restrictions, covenants and conditions contained in this Easement. c. All notices, demands, requests or other communications required hereunder shall be in writing and sent by recognized express courier (such as FedEx or United Parcel Service) or via United States registered, certified mail, postage prepaid, return receipt requested, addressed to each party hereto, as the case may be, at the address first hereinabove provided or such other address as any party may from time to time designate in writing to the other. d. This Easement shall be governed by and construed in accordance with the laws of the State of Florida. Venue of any litigation or administrative proceeding shall be exclusively in Palm Beach County, Florida. The prevailing party in any litigation arising from the terms of this Easement shall be entitled to recover its reasonable attorneys' fees, both at trial and on appeal, as well as court costs, from the non - prevailing party. e. The captions used in this Easement are solely for the convenience of reference and shall not in any way limit or amplify the terms and provisions hereof. f. This Easement may be executed in counterparts, each of which will be deemed an original as against any party whose signature appears hereon, and all of which shall constitute one and the same agreement. g. This Easement may not be terminated, modified or amended except as provided herein or as otherwise agreed to in a written document executed by the parties hereto or their respective successors in interest. h. Any invalidity of any of the terms and conditions or provision of this Easement by judgment, court order or otherwise shall not affect any of the other terms, conditions or provisions of this Easement. i. A like Easement Agreement will be executed contemporaneously with this Agreement by the parties to address additional temporary parking on the North Parcel. j. City shall not be liable or responsible to Grantor beyond the monetary limits specified in Ch. 768.28, Fla. Stat., regardless of whether said liability be based in tort, contract, indemnity or otherwise; and in no event shall City be liable to Grantor for punitive or exemplary damages or for lost profits or consequential damages. k. City and Grantor hereby acknowledge and confirm that the Existing Temporary Parking Easements shall be terminated and become null and void and of no further force or effect simultaneous with the Effective Date. 01889361-1 Page 465 of 971 [SIGNATURES AND ACKNOWLEDGEMENTS APPEAR ON THE FOLLOWING PAGES] 01889361-1 Page 466 of 971 IN WITNESS WHEREOF the parties hereto have caused these presents to be executed. CITY OF BOYNTON BEACH ATTEST: Un City Clerk Mayor, Ty Penserga Address: Witness: Printed Name: APPROVED AS TO FORM: City Attorney STATE OF FLORIDA } COUNTY OF PALM BEACH } The foregoing instrument was acknowledged before me this day of , 2022, by , as Mayor of the CITY OF BOYNTON BEACH, a municipal corporation of the State of Florida. He/she appeared before me ❑ in person or ❑ electronically and is personally known to me or has produced as identification. Commission Expires: 01889361-1 Page 467 of 971 Signed, sealed and delivered: DEVELOPER: BOYNTON BEACH TOWN CENTER APARTMENTS, LLC, a Florida limited liablity company Witness: By: Printed Name: Witness Dated: Printed Name: STATE OF ) SS COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2022, by of BOYNTON BEACH TOWN CENTER APARTMENTS, LLC, a Florida limited liablity company. He or she is appeared before me ❑ in person or ❑ electronically and is: [ ] personally known to me, or [ ] produced identification. Type of identification produced (Seal) My commission expires: 01889361-1 NOTARY PUBLIC: Print Name: Page 468 of 971 EXHIBIT "A" LEGAL DESCRIPTION OF GRANTOR PROPERTY Parcel 2, Boynton Beach Town Square, according to the plat thereof as recorded in Plat Book 127, Page 1, Public Records of Palm Beach County, Florida. 01889361-1 Page 469 of 971 EXHIBIT "B" LEGAL DESCRIPTION OF SOUTH PARCEL Parcel 7, Boynton Beach Town Square, according to the plat thereof as recorded in Plat Book 127, Page 1, Public Records of Palm Beach County, Florida. 01889361-1 Page 470 of 971 EXHIBIT "C" LEGAL DESCRIPTION OF EASEMENT PROPERTY Parcel 3, Boynton Beach Town Square, according to the plat thereof as recorded in Plat Book 127, Page 1, Public Records of Palm Beach County, Florida. 01889361-1 Page 471 of 971 EXHIBIT "D" Insurance Coverage Automobile Liabili Bodily injury and property damage liability covering all owned, non -owned and hired automobiles for limits of not less than $500,000 bodily injury each person, each accident and $500,000 property damage, or $500,000 combined single limit each occurrence/aggregate. Commercial General Liability Bodily injury and property damage liability as shall protect the City or Grantor from claims of bodily injury or property damage which arise from the use of the Easement. The amounts of such insurance shall be $2,000,000 per person, $2,000,000 per occurrence, and a general aggregate limit of $5,000,000.00. This insurance shall include coverage for products/completed operation, personal injury liability and contractual liability assumed under the indemnity provision of this Easement. Workers' Compensation Insurance Meeting the statutory requirements of Florida and Employer Liability of $1,000,000 per accident limit, $1,000,000 disease per policy limit, $1,000,000 disease each employee limit, providing coverage for employees and owners. Professional Liability Insurance In an amount of not less than $2,000,000 each claim and $2,000,000 aggregate. 01889361-1 Page 472 of 971 8.K. Public Hearing 2/21/2023 Requested Action by Commission: Proposed Resolution No. R23-023- Approve and authorize the Mayor to sign a Continuing Parking Lease Agreements (North and South) between the City of Boynton Beach and the Boynton Beach Town Center Apartments, LLC. Explanation of Request: The Continuing Parking Lease Agreements will provide permanent parking for City employees and the public for the duration of the Agreements, which is 100 years. The Continuing Parking Lease Agreements will take effect once the permanent parking facilities are completed How will this affect city programs or services? The Continuing Parking Lease Agreements will permit the City and general public to use the parking facilities once they are completed, for City employees and the public using City Hall and Town Square facilities Fiscal Impact: None Alternatives: Not approve, in which case the City Commission will need to address how to provide parking for City employees and the public using City Hall and Town Square Strategic Plan: Transportation and Mobility , High Performing Organization Strategic Plan Application: Parking is necessary for City employees and the public using City Hall and Town Square Climate Action Application: Is this a grant? Grant Amount: Attachments: Page 473 of 971 Type D Ag ir'EsE) rTIE) II'l t D Ag ir'EsE) rTIE) II'l t Description IRE)SOkAboin approviing ChE) CC)1['lhl['IL.Jlil['lg IFlairlkiir g I EsaSE�,Agir'E�IENrTIENI'AS, (Noirth aind SOLAth) with &B TCA, I I .C� CC)1['lhl['IL.Jlil['lg IFlairlkiir gI EsaSE�,Agir'E�IENrTIENI'lt North CC)1['lhl['IL.Jlil['lg IFlairlkiir gI EsaSE�,Agir'E�IENrTIENI'lt SOLAth Page 474 of 971 I RESOLUTION R23-023 2 3 A RESOLUTION OF THE CITY OF BOYNTON BEACH, FLORIDA, 4 APPROVING AND AUTHORIZING THE MAYOR TO SIGN THE 5 CONTINUING PARKING LEASE AGREEMENTS (NORTH AND 6 SOUTH) AND ANY AND ALL DOCUMENTS ASSOCIATED 7 THEREWITH BETWEEN THE CITY OF BOYNTON BEACH AND 8 BOYNTON BEACH TOWN CENTER APARTMENTS, LLC; AND 9 PROVIDING AN EFFECTIVE DATE. 10 11 WHEREAS, the Continuing Parking Lease Agreements will provide permanent parking 12 for City employees and the public for the duration of the Agreements, which is 100 years and 13 will take effect once the permanent parking facilities are completed; and 14 WHEREAS, The Continuing Parking Lease Agreements will permit the City and general 15 public to use the parking facilities once they are completed, for City employees and the public 16 using City Hall and Town Square facilities; and 17 WHEREAS, the City Commission has determined that it is in the best interests of the 18 residents of the City to approve and authorize the Mayorto sign the Continuing Parking Lease 19 Agreements and any and all documents associated therewith between the City of Boynton 20 Beach and Boynton Beach Town Center Apartments, LLC. 21 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF 22 BOYNTON BEACH, FLORIDA, THAT: 23 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as 24 being true and correct and are hereby made a specific part of this Resolution upon adoption 25 hereof. 26 Section 2. The City Commission hereby approves and authorizes the Mayor to 27 sign the Continuing Parking Lease Agreements and any and all documents associated 28 therewith between the City of Boynton Beach and Boynton Beach Town Center Apartments, 29 LLC. Copies of the Continuing Parking Lease Agreements are attached hereto and 30 incorporated herein by reference as Exhibit "A" (North) and Exhibit "B" (South). 31 Section 3. This Resolution shall become effective immediately upon passage. 32 33 34 S:ACA\RESO\Agreeiuents\Approve Continuing Parking Lease Agreement With BBTCA - Reso.Docx Page 475 of 971 35 PASSED AND ADOPTED this 21 st day of February, 2023. 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 CITY OF BOYNTON BEACH, FLORIDA Mayor — Ty Penserga Vice Mayor —Angela Cruz Commissioner — Woodrow L. Hay Commissioner — Thomas Turkin Commissioner —Aimee Kelley ATTEST: VOTE Maylee De Jesus, MPA, MMC Ty Penserga City Clerk Mayor (Corporate Seal) YES NO APPROVED AS TO FORM: Michael D. Cirullo, Jr. City Attorney S:ACA\RESO\Agreeiuents\Approve Continuing Parking Lease Agreement With BBTCA - Reso.Docx Page 476 of 971 PARKING LEASE AGREEMENT North Garage THIS PARKING LEASE AGREEMENT (the "Agreement") is entered into this day of 2023, by and between BOYNTON BEACH TOWN CENTER APARTMENTS, LLC, a Florida limited liability company ("Owner"), and CITY OF BOYNTON BEACH ("City"). WITNESSETH: WHEREAS, Owner owns certain real property in Boynton Beach, Florida, as more particularly depicted on the attached Exhibit "A" (collectively, "Property"), together with all rights, easements and appurtenances belonging or in any way pertaining thereto, and all improvements to be constructed thereon, including without limitation certain buildings, and a parking garage commonly known Garage North (the "Garage"); WHEREAS, Owner, itself or through an affiliate thereof, and City have entered into a Development Agreement of even date herewith (the "Development Agreement") governing, among other things, development of the Garage, and Owner's obligations to commence construction thereunder; and WHEREAS, pursuant to the Development Agreement and that certain City -approved master plan attached hereto as Exhibit `B" (the "Master Plan"), the Garage contemplated for construction on the Property is anticipated to contain a total of approximately 1026 parking spaces; and WHEREAS, pursuant to that certain Parking Allocation attached hereto as Exhibit "C" ("Parking Allocation"), the approximately 1026 parking spaces in the Garage shall be allocated as follows: a. 237 parking spaces which are being leased by Owner to City pursuant and subject to the terms and conditions in this Agreement (the "City Spaces"). b. 789 parking spaces which are not being leased to City and are reserved by Owner for the exclusive use of its residential and commercial tenants, as depicted in the Parking Allocation as "Residential and Guest" and "Commercial" (together the "Owner Controlled Spaces"; the City Spaces and the Owner Controlled Spaces are referred to hereinafter together as "All Spaces"); and WHEREAS, Owner desires to lease the City Spaces to City, upon the terms and conditions set forth herein; and WHEREAS, once constructed, the Garage will provide required parking for certain City buildings and facilities; 01888887-5 52983123_1 Page 477 of 971 WHEREAS, pursuant to the Master Plan, Owner plans to construct a second parking garage ("South Garage"); and WHEREAS, simultaneous with the execution of this Agreement the parties intend to execute a substantially similar parking lease agreement for parking spaces in the South Garage; NOW, THEREFORE, in consideration of their mutual promises, covenants and intending to be legally bound, the parties hereto agree as follows: 1. Recitals. The foregoing recitals are true and correct and are incorporated herein by reference. 2. Construction of Garage. The Garage will be constructed pursuant to the terms and conditions of the Master Plan and the Development Agreement and any development orders issued for the Garage. 3. Lease of City Spaces. Owner hereby leases to City and City hereby leases from Owner, pursuant and subject to the terms and conditions of this Agreement, the City Spaces, together with the nonexclusive use, in common with others entitled thereto, of the Common Areas, for the purpose of accessing and using the City Spaces. As constructed and installed, the City Spaces shall be located within the areas designated as the City Spaces in the site plan to be submitted to City for its approval, provided that such spaces shall be on the same levels of the Garage as depicted on the drawing attached hereto as Exhibit "D" (the remaining levels of the Garage being reserved for the Owner Controlled Spaces). The parties understand that the attached Exhibit "D" is for illustrative purposes only, remains subject to site plan review, and nothing in this Agreement shall be deemed a site plan approval or relieve Owner of its obligations to obtain the same. Notwithstanding illustrative nature of Exhibit "D," the 237 City Spaces shall be as follows, subject to the terms herein: a. 192 parking spaces shall be designated "Exclusive City Spaces," which shall be for the exclusive use of the City 24 hours a day, 7 days a week. The Exclusive City Spaces shall be located no higher in the Garage than the ramp located between the mezzanine and second level of the Garage. No more than 10% of the Exclusive Parking Spaces may be compact spaces and no more than 1% of the Exclusive Parking Spaces may be motorcycle spaces. b. 45 City Spaces shall be designated "Nonexclusive City Spaces," which shall be for the exclusive use of the City between the hours of 7:30 am to 6:30 pm, Monday through Friday (the "City Control Hours"). Except during the City Control Hours, Owner may utilize the Nonexclusive City Spaces for other parking purposes, including commercial parking and residential parking; provided however, that Owner's use of the Nonexclusive Parking Spaces shall not be counted towards required parking for Owner's residential and commercial tenants for site planning purposes. No more than 10% of the Nonexclusive Parking Spaces may be compact spaces and no more than 1% of the Nonexclusive Parking Spaces may be motorcycle spaces. 01888887-5 52983123_1 2 Page 478 of 971 c. During the site planning process, the parties may agree to swap the location of a portion of the City Spaces with certain of those spaces depicted as "commercial spaces" on Exhibit "D." 4. Owner Controlled Spaces. Owner shall have the absolute right to use and control the Owner Controlled Spaces for the purpose of providing parking for its residential and commercial tenants on an exclusive basis, pursuant to rules and regulations binding such tenants as determined by Owner from time to time in its sole discretion, notwithstanding anything in this Agreement to the contrary (provided such rules and regulations shall not materially affect the use of or access to the City Spaces and are in compliance with all applicable city, state, and federal ordinances, laws, rules, and regulations). Further, Owner shall have the right to install a gate or other mechanism within the Garage, to be installed, modified, replaced, repaired and maintained at Owner's sole cost, which shall restrict access to the Owner Controlled Spaces as deemed appropriate by Owner in its sole and absolute discretion (the "Gate"); it being understood and agreed that the Owner Controlled Spaces are intended and reserved exclusively for the use and enjoyment of Owner's tenants, are not being leased to City, and City shall have no rights (possessory or otherwise) with respect thereto (except to enforce Owner's express obligations hereunder if necessary). Notwithstanding the foregoing, Owner's installation, maintenance, modification, replacement and repair of the Gate shall not materially interfere with City's and the public's use of the City Spaces, and all such work shall be performed in accordance with all Legal Requirements. In the event that City and Owner later agree that certain City Spaces may be located behind a Gate, such agreement shall be expressly conditioned on the understanding that the Owner may not deny the City (or City's designee, if any) access to the City Spaces behind the Gate for any reason whatsoever (it being understood that such City Spaces may be located behind the Gate, but the City (or its designee) shall at all times have continuous and uninterrupted access (via a gate fob, "clicker" or otherwise) through the Gate to and from such City Spaces). Additionally, Owner shall have the right, from time to time, alter or modify the use, design or structure (or any combination thereof) of that portion of the Garage comprising the Owner Controlled Spaces and the Common Area appurtenant thereto (the "Owner Alteration"), provided (i) Owner obtains all necessary permits and approvals for the applicable governmental authorities, (ii) the Owner Alteration, including alteration of the Common Areas appurtenant to such Owner Controlled Spaces, shall not disturb the City Spaces or the use thereof (as permitted in this Agreement). 5. Management of Garage. Owner, itself or through an affiliate or management company designated by Owner in its sole discretion, shall operate and maintain the Garage as a first-class facility and shall, in such capacity, among other things, assess City its Proportionate Share of Operating Expenses pursuant to Section 9 below. Notwithstanding the foregoing, however, if any portion of the City Spaces (or the Common Areas appurtenant thereto) are subject to any interference, action, condition, material waste or damage not caused solely by Owner, its agents, contractors, tenants or designees and which, in Owner's reasonable discretion, (i) impedes or restricts access to the Common Areas and/or Owner Controlled Spaces (ii) creates a visual, audial or other nuisance, (iii) violates any applicable laws or codes which violations can be lawfully remediated by Owner, (iv) violates the any of the Rules and Regulations (defined below) or (v) otherwise causes the Garage to be less than a "first-class" facility (any of the foregoing, a "Violation"), then Owner shall have the right to tow or boot vehicles, perform extra cleaning or 01888887-5 52983123_1 3 Page 479 of 971 maintenance, contact the appropriate authorities, replace or repair damage or take such other action as Owner reasonably believes is necessary to remedy such violation and City shall reimburse Owner's actual charges therefor within forty-five (45) days of delivery of an invoice with reasonable detail. Reimbursement for any such Violation shall be in addition to any Operating Expenses for which City is otherwise responsible. Owner shall have the right, but not the obligation, to create reasonable rules and regulations for use of the Garage ("Rules and Regulations") which shall be uniformly applied in a non-discriminatory manner and shall be effective upon delivery of a copy thereof to City; provided however, that any such Rules and Regulations shall not impede or disrupt the City's rights under this Agreement (including the City's rights to use and access the City Spaces), and including the right to park vehicles in the Exclusive City Spaces during hurricanes or other natural disasters. The Owner shall operate the Garage in compliance with all applicable 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 Garage is located. Owner shall comply with all such laws, ordinances, regulations, codes and orders now in effect or hereafter enacted or passed during the Term. 6. Term and Commencement of Term. This Agreement shall be in full force and effect from the date of the issuance of the final Certificate of Occupancy (or equivalent certification) for the Garage ("Effective Date"). The term of the Agreement ("Term") shall commence on the date first written above. Unless sooner terminated pursuant to the terms of this Agreement, the Term shall continue from the Commencement Date for aperiod of one hundred (100) years and shall terminate at midnight on the last day of the one hundredth (100th) Lease Year (as hereinafter defined) ("Expiration Date"). 7. Rent and Expenses. (a) Pursuant to the Development Agreement, City has provided consideration to Owner for the use of the City Spaces for the Term set forth herein, the sufficiency of which Owner hereby acknowledges. (b) The City shall pay its Proportionate Share of the Operating Expenses (as defined in Section 9) related to the maintenance and operation of the Garage. 8. Sales Tax Exemption. Notwithstanding anything to the contrary set forth in this Agreement, so long as City obtains and provides a true, correct, and complete copy of a sales tax exemption certificate, issued by the Florida Department of Revenue to Owner contemporaneously with City's execution and delivery of this Agreement, City shall be exempted from paying sales tax (from which it is so exempt) under this Agreement. City shall, not later than thirty (30) days before the end of each calendar year throughout the Term provide to Owner an updated sales tax exemption certificate from the Florida Department of Revenue to establish City's exemption from sales tax for the upcoming year. In the event that, at any time during the Term, City no longer holds a valid sales tax exemption certificate from the Florida Department of Revenue or it is determined by the Florida Department of Revenue that sales tax is otherwise due on the amounts payable by City under this Agreement for any reason whatsoever, then City shall be liable for all sales taxes due under this Agreement and shall promptly remit same to Owner. City may, upon written notice to Owner, request that Owner contest any such taxes, assessments and other charges that City reasonably determines, in its good faith judgment, are not appropriate or applicable. Owner may elect, but shall 01888887-5 52983123_1 M Page 480 of 971 not be obligated, to accept any request by City to contest such taxes, assessments and/or other charges. In the event Owner elects to accept City's request, City shall reimburse Owner for all actual costs and expenses incurred by Owner in connection with contesting such taxes, assessments and/or other charges on City's behalf (including, without limitation, reasonable attorneys' fees) within thirty (30) days of Owner's written demand therefor. Notwithstanding any pending tax or assessment contest, City shall be obligated to pay, when and as due under this Agreement, all taxes, assessments or other charges so contested. City's obligation to pay any taxes, assessments and/or other charges under this Agreement shall not be contingent upon the resolution of any such tax contest. Owner shall provide the City with a credit for all taxes, assessments and other charges which are awarded to Owner in such tax contest to the extent applicable to City's Proportionate Share. 9. Expenses. (a) Definitions. For purposes of this Agreement, the following terms shall have the meanings set forth below: (i) "City's Proportionate Share of Operating Expenses" shall be calculated as follows: the City shall be charged 100% of the Operating Expenses associated with the Exclusive City Spaces, which shall be calculated by dividing the number of Exclusive City Spaces by the number of total Garage spaces, then multiplying the resulting number by the total Operating Expenses of the Garage. The City shall also be charged 33% of the Operating Expenses associated with the Nonexclusive City Spaces, which shall be calculated by dividing the number of Nonexclusive City Spaces by the number of total Garage spaces, which resulting amount shall be multiplied by .33, which shall then be multiplied by the Operating Expenses of the Garage. The multiplier .33 is determined by dividing the number of hours the City will control the Nonexclusive City Spaces during one week by 168 and rounding to the nearest two decimal places. The Operating Expenses of the Exclusive City Spaces shall be added to the Operating Expenses of the Nonexclusive Spaces to determine the City's Proportionate Share of Operating Expenses. Figure 1, below, contains a mathematical illustration of the calculation described in this Section 9(a)(i). 01888887-5 52983123_1 k, Page 481 of 971 Figure 1: City's Proportionate Share of Operating Expenses Calculation Number of Exclusive City Spaces x Operatnng Expenses = 'Number of Total Garage Spaces Number of Nonexclusive City Spaces x .33 x Operatnng Expenses = Number of Total Garage Spaces Operating Expenses for Operating Expenses for Exclusive City Spaces � NonexcluslVe City Spaces Operating Expenses for Exclusive City Spaces Operatinug Expenses for -Nonexclusive City Spaces City s Proportionate Share of Operating Expenses At present, the parties anticipate that the City's Proportionate Share of Operating Expenses shall be 20.10% of the total Operating Expenses of the Garage. (ii) "Commencement Date" shall mean that "Commencement Date" as set forth in that certain Confirmation of Commencement Date completed and executed by City and Owner on the form attached as Exhibit "E" hereto. Upon the issuance of a final certificate of occupancy for the Garage (or upon another milestone agreed in writing by Owner and City), then Owner and City shall promptly execute the Confirmation of Commencement Date with the applicable date of issuance of such certificate of occupancy (or other agreed date) inserted as the Commencement Date. (iii) "Common Areas" shall mean all areas located within the Garage excluding the actual parking spaces comprising All Spaces. To avoid confusion, Common Areas shall include all utilities, drainage, driveways, structures, elevators, ductwork, risers, decoration (including, without limitation, artwork), landscaping, ramps and all other portions of the Garage, including, without limitation, those Common Areas which serve the Garage and/or All Spaces. (iv) "Lease Year" shall mean the following time periods: the first Lease Year shall commence upon the Commencement Date and end on December 31; and each Lease Year thereafter shall commence upon January 1 after the end of the prior Lease Year, and shall end on 01888887-5 52983123_1 6 Page 482 of 971 December 31 of that year. Any calculations based on the first Lease Year and last Lease Year shall be prorated accordingly. (v) "Operating Expenses" shall mean all costs and expenses which Owner actually incurs for operating, maintaining and repairing the Garage, the parking areas (including, without limitation, All Spaces), and the Common Areas. Operating Expenses shall include 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) market rate management fees, including, to the extent permitted under the 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, pest control, 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 Common Areas and window cleaning; (e) the cost of capital improvements to any portion of the Garage; (f) all taxes and assessments (including, without limitation, real estate taxes); (g) insurance costs; and (h) all other costs customarily treated as operating expenses or taxes in buildings of this nature. Operating Expenses do not include salary, benefits, or bonuses of Owner's employees or officers employed by Owner or any subsidiary of Owner or entity related to Owner; or other expenses not directly related to the operation of the Garage. Notwithstanding the foregoing, the City shall not be required to pay taxes and assessments from which it is lawfully exempt, and in the event Owner receives any reduction in taxes or assessments owed or paid, which reduction can be verified as resulting directly from the City's status as a governmental entity, such savings shall be passed directly on to the City. Any Operating Expenses associated solely with the Owner Controlled Spaces shall not be included in the calculation of City's Proportionate Share of Operating Expenses. (vi) Rights. City acknowledges that Owner shall have the right to install facilities within the Common Areas for the benefit of the Garage and to perform services for the benefit of the Garage, of Owner, of Owner's tenants, and of the licensees, employees, customers, visitors and invitees of the Garage, 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 Garage. Owner's costs of operating, maintaining and insuring any such facilities and providing any such services for the benefit of the Garage 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 Garage, shall be included, in proportionate share, in Operating Expenses for purposes hereof. Notwithstanding anything to the contrary in this Agreement, to the extent that any material improvements to the Garage contemplated by Owner directly affect the City Spaces or City's right to the use of the City Spaces, Owner shall be required to obtain the prior written consent of City, which consent shall not be unreasonably withheld, delayed or conditioned by City, and City shall be responsible for City's Proportionate Share of Operating Expenses with respect to such improvements. However, to the extent that any improvements to the Garage only: (A) Affect the City Spaces or City's right to the use of the City Spaces under this Agreement, City shall be solely responsible for all costs of construction, installation, maintenance, repair, and replacement of such improvements; and 01888887-5 52983123_1 7 Page 483 of 971 (B) Affect the Owner Controlled Spaces or Owner's right to the use of the Owner Controlled Spaces under this Agreement, 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 9(a)(i), the City's Proportionate Share of Operating Expenses (prorated for any partial Lease Year at the beginning or end of the Term). (c) Estimate. For each Lease Year during the Term, Owner shall supply City with an estimate of the City's Proportionate Share of Operating Expenses ("Owner's Estimated Expense Computation") for such Lease Year. City shall pay to Owner on the first day of each month during the Lease Year one -twelfth (1/12) of Owner's Estimated Expense Computation. For each Lease Year during the Term, Owner shall notify City of the actual annualized Operating Expenses for the Lease Year just concluded ("Owner's Actual Expense Computation"). Owner's Actual Expense Computation shall be prorated for any fraction of a Lease Year in which the Term begins or ends. If the Owner's Estimated Expense Computation paid by City to Owner with regard to any Lease Year is less than the Owner's Actual Expense Computation with regard to the same Lease Year, the amount of such shortfall shall be taken into account in calculating the Owner's Estimated Expense Computation for the following Lease Year (and shall thereby increase the following Lease 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 Lease Year exceeds the Owner's Actual Expense Computation with regard to the same Lease Year, the excess shall be taken into account in calculating the Owner's Estimated Expense Computation for the following Lease Year (and shall thereby decrease the following Lease Year's estimated payments by the amount of such excess). (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 Lease Year occurring during the term of the Agreement. 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 City has paid in excess of its 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 laws, codes and ordinances) 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 Garage; establish and, from time to time, change the level or grade of parking surfaces 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 City Spaces without the prior written consent of City, which consent shall not be unreasonably withheld, conditioned, or delayed. In no case shall the City Spaces 01888887-5 52983123_1 K, Page 484 of 971 be moved to a higher level than depicted on Exhibit "D" unless expressly consented to by the City in its sole discretion. (f) Demolition of Garage. After 30 years from the Effective Date, the Owner has the right to demolish the garage and construct new parking garage improvements on the Property; provided however that Owner may exercise such right only if the following conditions are met: (A) Except in cases where immediate demolition is required to protect public health or provide public safety, Owner shall provide the City at least one year's advance written notice of such demolition; (B) Owner must obtain, at its sole expense, all necessary approvals and permits; (C) Owner must, at its sole expense, provide to City parking in a substantially equivalent amount of parking spaces in an alternative location and with the same rights to use, occupy, manage, charge for (meter), and tow temporarily during the demolition and construction of the new parking garage. In the event the temporary parking provided is more than .25 miles from the entrance to City Hall, Owner shall provide, at its sole expense, shuttle service not less than once per hour and for which the average shuttle trip time does not exceed 15 minutes; and (D) Upon completion of the new parking garage, this Agreement shall remain in full force and effect and Developer and City shall recognize the new parking garage as the Garage. In the event Developer exercises its right to demolish the Garage, the City may, in its sole discretion, elect (x) to terminate this Agreement instead of accepting alternative parking arrangements, or (y) to allow the Agreement to remain in full force and effect but provide its own alternative parking arrangements, during which City shall not pay any fees or costs of any kind to Owner. 10. 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 ten (10%) per annum. If any check given to Owner for any 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. 11. Payment of Utilities. Subject to reimbursement by City as part of the Operating Expenses, Owner shall provide and pay for any electrical or other utility services required to operate the City Spaces. Owner makes no warranty or representation as to the quality or capacity of utility service to the City Spaces. 12. Use of City Spaces. (a) City shall use the City Spaces solely for the parking of motor vehicles and for no other purpose. The City may, in its sole discretion, allow the general public to park in all, some, or none of (i) the Exclusive City Spaces at all times and (ii) the Nonexclusive City Spaces only during the City Controlled Hours. 01888887-5 52983123_1 9 Page 485 of 971 (b) City acknowledges that all parking in the Garage is currently on a self -parking basis. City covenants and agrees that notwithstanding anything in Section 5 above or otherwise in this Agreement to the contrary, Owner shall have no obligation, liability, or responsibility to City should the City Spaces be occupied at any time or times by vehicles not so authorized or directed by Owner. (c) 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 City Spaces, including signage indicating that the Exclusive City Spaces are for the sole use of City, that the Nonexclusive Spaces are for the sole use of the City during the City Control Hours, 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 which shall not be unreasonably withheld, conditioned, or delayed. City, at its sole cost and expense, shall prior to installation of signage, obtain all required governmental, quasi -governmental, and other permits and approvals. (d) 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 City 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, conditioned, or delayed 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 -parry manager of the Garage at no expense to Owner or such third -parry manager; City shall be entitled to all revenue resulting from such use of the City 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, at the option of the City in its sole discretion, applied to reduce City's obligations with respect to 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. (e) City, at its sole expense, may also contract with a duly licensed towing company to service the City Spaces and to enforce the signage described in Section 12(c), 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. (f) City, at its sole expense, may also contract with a management company to operate the City Spaces or any aspect thereof, including metering, charging, maintenance, signage, and other aspects. Such manager shall reasonably coordinate with Owner and any manager employed by Owner for the operation of the Garage. This Section 12(f) shall not interfere with or 01888887-5 52983123_1 10 Page 486 of 971 reduce the Owner's rights pursuant to Sections 5 and 9 of this Agreement, including but not limited to the right to pass through to the City its proportionate share of the costs of operating the Garage. (g) City covenants that, during the Term, no part of the City Spaces shall be used in any manner whatsoever for any purposes other than as set forth in this Section 12 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 City Spaces 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 City Spaces and any signs of the City are concerned (collectively, "Legal Requirements"). (h) The City Control Hours have been determined based on the operating hours of the City's facilities. In the event the such operating hours change, the City may request that Owner agree to modify the City Control Hours accordingly, which agreement shall not be unreasonably withheld, conditioned, or delayed, and in which case the City's Proportionate Share of Operating Expenses shall be adjusted accordingly. 13. City's Insurance. City may elect to self -insure against certain risks, including certain risks related to City's rights under this Agreement and to City's occupation or use of the City Spaces. 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 (or if City later elects to obtain insurance in lieu of self-insurance, then City shall immediately notify Owner in writing of such election and provide a certificate of insurance which conforms to the requirements of this Section). 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 Garage 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 Garage 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 Garage) limit the liability of City under this Agreement. 14. Waiver of Claims. Except for claims arising from Owner's intentional or negligent acts that are not covered by City's insurance required by this Agreement, subject to applicable law, City or any party claiming through City (or both) (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 Garage; (ii) wind, rain, hurricane, flooding, fire, explosion, hail, or other 01888887-5 52983123_1 11 Page 487 of 971 casualty or act of God; and (iii) vandalism, assault, battery, malicious mischief, theft or other acts or omissions of any third parties not caused by Owner's failure to operate the Garage in all material respects as required by this Agreement. 15. 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 City Spaces 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 up to the amount specified in Section 768.28, Florida Statutes, whether such claim lie in indemnity, contract, tort, or otherwise. This Section 15 shall survive the termination of the Agreement. 16. 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 negligence or intentional misconduct by Owner or any of its employees, independent contractors, invitees, guests, or agents. This Section 16 shall survive the termination of the Agreement. 17. 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 forty-five days (45) calendar days after City receives written notice of the failure to pay after the payment is due; (b) if City attempts to transfer its rights under this Agreement without Owner's prior written consent including any attempt to assign this Agreement or sublease all or any portion of the City Spaces without Owner's prior written consent; (c) if City violates any other material term, condition, or covenant in this Agreement which is to be performed by City, and fails to remedy the same within ninety (90) 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 ninety (90) days, City shall not be in default of this Agreement if City, during said ninety (90) day period, commences to cure the default and diligently continues in good faith to cure the default until completion. 18. Remedies of Owner. 01888887-5 52983123_1 12 Page 488 of 971 (a) If any monetary Event of Default by City occurs, then, in addition to any other remedies of Owner, Owner shall have Owner shall have the right to bring an action to recover all sums due, which may include an action for revenues generated by the City Spaces (including, if necessary, court selection of a receiver) to be paid to Owner up to the amount owed. (b) 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. (c) 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 City Spaces 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. Any amounts which may be due Owner shall include any costs, expenses, or any other amounts payable pursuant to this Agreement. (d) 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 Agreement or to add City as an additional insured under a policy of Owner's as to City's rights under this Agreement, and Owner shall have the right to charge City for any amounts required to purchase such insurance (or to be reimbursed for such amounts). (e) Any and all rights, remedies and options given in this Agreement to Owner shall be cumulative and in addition to and withoutwaiver of, or in derogation of, any right or remedy under this Agreement or provided under any law now or hereafter in effect. (f) No cure periods shall apply to any emergencies or to failure to maintain and furnish insurance. (g) It is expressly understood that the remedies provided in the Event of Default by the City shall be in the form of damages or equitable relief, which may include, specific performance, and injunctive relief (it being understood monetary damages may not be a sufficient remedy for City's default hereunder), and shall not result in termination of this Agreement. 19. 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 ninety (90) 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 ninety (90) days, Owner shall not be in default of this Agreement if Owner, during such ninety (90) day period, commences to cure the default and diligently continues in good faith to cure the default until completion. 01888887-5 52983123_1 13 Page 489 of 971 20. 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, may seek damages or specific performance, which may include injunctive relief, and may exercise any right or remedy now or hereafter existing at law or in equity or by statute. 21. 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. 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. 22. No Assignment or Sublease/Change in Ownership. (a) City may not assign this Agreement in whole or in part, nor sublease all or any portion of the City Spaces, 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 City Spaces in the ordinary course, whether with or without charge, on an hourly or daily basis. The consent by Owner to any assignment or sublease shall not constitute a waiver of the necessity for such consent to any subsequent assignment or sublease. No assignment, sublease, occupancy or collection shall be deemed acceptance of the assignee, sub -lessee, or occupant, or as a release of City from the further performance by City of the covenants on the part of City herein contained. Despite Owner's consent to an assignment or sublease, 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 rent or other sums to be paid hereunder unless otherwise expressly consented to by Owner in its sole discretion. Any attempted assignment or sublease 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 City Spaces and the Property, and all right and interest of Owner in this Agreement, may be conveyed or assigned at the sole discretion of Owner at any time provided such conveyance or assignment is of the whole Agreement and the party conveyed or assigned to is recognized as Owner under this Agreement. (c) If Owner, in its sole and absolute discretion, consents to an assignment or sublease of all or any portion of the City Spaces, the form of such documents shall be as acceptable to Owner in its sole and absolute discretion. 23. Subordination and Attornment. (a) From time to time, Owner may request the City to subordinate its rights hereunder to mortgage or other method of financing or refinancing through a subordination, non- disturbance, and attomment agreement ("SNDA"). Any subordination must be effectuated through an SNDA reasonably acceptable to the City so as to ensure the City's rights under this Agreement are continued without interruption for the Term of this Agreement. So long as the above-described 01888887-5 52983123_1 14 Page 490 of 971 conditions are met and the City has adequate assurances this Agreement will not be disturbed, the City shall approve of the SNDA. So long as such request is received more than 10 days before a City Commission meeting, the SNDA shall be placed on the next City Commission agenda, and if received less than 10 days before the next City Commission meeting, shall be placed on the agenda of the next available regularly scheduled meeting. Further, the City and Owner agree to work together with reasonable diligence and in good faith to create a standard form of SNDA to expedite such requests. (b) If any proceedings are brought for the foreclosure of, or if exercise of the power of sale occurs under, any mortgage covering the City Spaces 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. 24. 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 24, execute, acknowledge and deliver to the parry 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 parry 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 parry to execute, acknowledge and deliver to the other a statement in accordance with the provisions of this Section 24 within such thirty (30) day period shall constitute an acknowledgment, by the parry 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 City Spaces or this Agreement from or through the other parry, 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 24 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. 25. Right of Entry. Owner and Owner's agents may enter the Garage at all reasonable times to examine the City Spaces (as well as other portions of the Garage), and to show the Garage to prospective purchasers, mortgagees, or other interested parties, and to make such repairs, alterations, improvements or additions as Owner may deem necessary or desirable (including, without limitation, actions taken pursuant to Section 5 or 9 above), and Owner shall be allowed to take all material into and upon the City Spaces that may be required therefor without the same constituting a termination of or infringement upon City's rights in whole or in part, provided however that should such material remain in the City Spaces more than 3 calendar days the amounts payable to Owner shall be abated in proportion to the reasonably determined loss of use and access to the City Spaces while the repairs, alterations, improvements, or additions are being made. If City shall not be present to open and permit 01888887-5 52983123_1 15 Page 491 of 971 entry into the City Spaces, 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. 26. Hazardous Materials and Environmental Laws; Indemnity. City shall not cause or permit the City Spaces 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 City Spaces 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 any activity conducted thereon, and from any use, generation, handling, storage, transportation, disposal or release of Hazardous Materials at or in connection with the Garage 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 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", "containments", or other pollution under applicable federal, state, commonwealth, 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. 27. Time of the Essence. Time is of the essence regarding the performance of every provision of this Agreement. 28. 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 (which term Owner, for the purposes of this Section 28 only includes any party with a real property interest in any portion the Property) 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 City Spaces, 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 City Spaces, 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 01888887-5 52983123_1 16 Page 492 of 971 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 City Spaces. In the event of Owner bankruptcy, all City's rights under this Agreement (including the rights of use and access to the City Spaces, and amount and timing of payment) shall be considered appurtenant to the Property for the balance of the Term and shall be considered enforceable rights but may be subject to any limitation or subordination found in any SNDA entered into pursuant to Section 23(a) above. 29. 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, OR (11) CITY'S USE OF CITY SPACES AND THE GARAGE. 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. 30. 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 30(a) or Section 30(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: Dan Dugger, City Manager 100 E. Ocean Avenue Boynton Beach, FL 33435 Email: DuggerD@bbfl.us With a copy to: Michael Cirullo, Jr. Goren Cherof Doody and Ezrol, PA 3099 East Commercial Boulevard Suite 200 Fort Lauderdale, FL 33308 MCirullo(&- wrencherof.com 01888887-5 52983123_1 17 Page 493 of 971 Kathryn Rossmell Lewis, Longman & Walker, PA 360 S. Rosemary Avenue Suite 1100 West Palm Beach, FL 33401 krossmell (r&11w-law.com If to Owner: Jerneb Acquisition Corp. I c/o Time Equities, Inc. 55 Fifth Avenue —15'h Floor New York, New York 10003 Attention: Robert Kantor and Robert Singer Email: rkantor(r&timeequities.com rsing er &timeecluities.com With a copy to: Mark J. Lynn, Esq. Greenspoon Marder LLP 200 E. Broward Boulevard Suite 1800 Fort Lauderdale, FL 33301 e-mail: mark. lynn2gmlaw.com 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. 31. 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 City Spaces 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 City Spaces except as herein expressly set forth, and all representations, either oral or written, shall be deemed to be merged into this Agreement. Except 01888887-5 52983123_1 18 Page 494 of 971 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 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 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) 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. 01888887-5 52983123_1 19 Page 495 of 971 (h) 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, shall be brought exclusively in the courts of Palm Beach County, Florida. (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. Except as expressly provided herein, 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 rights of sovereign immunity or extend the City's liability beyond the limits established in Section 768.28 of the Florida Statutes, as it may be amended from time to time. Nothing in this Agreement shall be deemed a waiver of the City's rights of sovereign immunity, and in no case shall the City's liability exceed the amount specified in Section 768.28, Florida Statutes, whether such claim lie in indemnity, contract, tort, or otherwise. (o) Recorded Document. The City shall record this Agreement or a memorandum thereof in the Public Records of Palm Beach County, Florida. 01888887-5 52983123_1 [SIGNATURES ON FOLLOWING PAGE] 20 Page 496 of 971 This Parking Lease Agreement is entered into and acknowledged by City and Owner as of the date first stated above. Approved for Form by City Attorney 01888887-5 52983123_1 21 CITY: CITY OF BOYNTON BEACH Ty Penserga, Mayor Page 497 of 971 WITNESSES: Print Name: Print Name: 01888887-5 52983123_1 22 OWNER: BOYNTON BEACH TOWN CENTER APARTMENTS, LLC, a Florida limited liability company By: Name: Title: Page 498 of 971 EXHIBIT "A" THE PROPERTY Parcel 1, Boynton Beach Town Square, according to the plat thereof, as recorded in Plat Book 127, Page 1, of the Public Records of Palm Beach County, Florida; and Parcel 2, Boynton Beach Town Square, according to the plat thereof, as recorded in Plat Book 127, Page 1, of the Public Records of Palm Beach County, Florida. 01888887-5 52983123_1 23 Page 499 of 971 01888887-5 52983123_1 EXHIBIT "B" MASTER PLAN 24 Page 500 of 971 PHASE =3 NORTH RESIDENTIAL/ COMMERCIAL 441 UNITS TPHASE 11 PHASE G&ERNM�INT/ .. CENTRAL PARCEL CIVIC R_ 1'�E P" xo IF, PHASE 1 GOVERNMENT/ rVIC " � T, PI'III1lIPl DEVELOPMENT TEAM — — — — — — — — — -..... 11A""El TIA11111 FlIA -IL FlF1' I'L "'I' EN-ElB 11,11411 AlIlITIIT 11 A 1111111 "I" IF,Ise LSF AacLA" 'C'APE 1 N'O'11�14�l L 11, 1 A K I I NN B IA I I 1.NTlFLALl T111 P_ _ 11 Exhibit D - Master Plan LOCATION MAP urban E= desin stuc?(0 U- D n 6 PInq NOUN L.ndcape A -It ... B, PHASE2 SOUTH RESIDENTIA= 1 of 2 COMMERCIAL 4 4�' UNITS 5 UNITS Bn� � T, PI'III1lIPl DEVELOPMENT TEAM — — — — — — — — — -..... 11A""El TIA11111 FlIA -IL FlF1' I'L "'I' EN-ElB 11,11411 AlIlITIIT 11 A 1111111 "I" IF,Ise LSF AacLA" 'C'APE 1 N'O'11�14�l L 11, 1 A K I I NN B IA I I 1.NTlFLALl T111 P_ _ 11 Exhibit D - Master Plan LOCATION MAP urban E= desin stuc?(0 U- D n 6 PInq NOUN L.ndcape A -It ... B, FIRE STATION PARCEL 1 of 2 02 09, 2023 ---------- SITE DATA IFN �� ...... ...... N'ENL_ F'N �EBI INTF PANNBT 1.11EP -11 Al 1 -11 IIA P'gP MAGNUSON PROJECT SUMMARY HOUSE cep EA ... P-1 P-I.E. 'AREA' OR Op.='.m.II Inc B, LEms�6r O.lE-IINNl LU IF,, -"Em I 11, 4 111 IN N— I N- I 1114PI NI. ll—_ 11TI1111111. GROSS AREA 115622 5�62 676,946 662,757 'PLATTED PLPROD ECT AREA :3 rvcwoE L='l`LFP="K'FlHL'TLP, , 1 N- L" F cy U_ USEABLE OPEN SPACE CALCULATION GROB,- SIT, ARFRss A z III Ii LIIALNII IELFA Pl.lABl lO 1-111 INAP I 'El III ,1FIZUB11%, I'll I P"""' 0 NOTES IN. PEL I 11 IF NPLITER PLAN PN.PP— B.INEPLIES OT ANN LUPPIELF ElS ILE BRO. - ILE EEI.FNE) PUT( 121 RPOEIF I I PI111D s". -l' ONT _FHE 0 M I— 21 SILL 11 11 111 *1" PPP -1-1 ,lNFJ LET 111BUT PI 11 FIFAAAAL PLO PINIFIN, LF'E.':AN'N 0F'NFBP Z.�B1I I �ION,TON.ONlPlAN_�l 1�91PENIEPE11:- P-1 LIN 11 l 2 11 51111 1 PHASE I A AN, N UI. N011 F 4 PEP(S) LLF OF 0PAPOEO ON P-PBB 4 511B 'NUBA... ON ME APP-1—AND F—E.T I FILE PIN PPPN—LS ANN LE.NUN. IFR�r Pl- ANO -111T I FILION.1 I III N - 9l III, III PI—F-LLK =_N_ FlIFIAINFRIPPIFLIT. NORTH 121 -NI I LEGEND 11 1111EPH NIPIIAL - 11 11 TO , tN)1111 IT 11`1111 IFILL BE *111 11111LI ONILL —111 FTIMI IF III PLAN IRPLIOPIII OT UPILIFF PIRS IIEL BE IBIONAID UNDLEBOOPNO SUBJECI 10 11 All MSP -1 of 2 -ND Exhibit D - Master Plan 2 of 2 02 09, 2023 -- -- --- ---- ------- ------ -------------- PARKING - SPA - CES REWIRED ------------- �FUSE SJ -Sp NCES 01888887-5 52983123_1 EXHIBIT "C" PARKING ALLOCATION 25 Page 503 of 971 BLDG 11 BDF 13 BDF 11 BDF 12 BDF 13 BDF Grand Total 898 2013 473 77 1463 units Avert Page 504 of 971 North Building Parking Floor DUs Total City Comm. Res. Ratio 1 14 75 54 0 21 1.50 1.5 0 120 120 0 0 0.00 2 59 115 32 0 83 1.41 3 62 120 31 0 89 1.44 4 62 120 0 32 88 1.42 5 62 119 0 28 91 1.47 6 62 119 0 0 119 1.92 7 62 119 0 0 119 1.92 8 58 1 121 0 0 121 2.09 Total 441 1 1028 237 60 731 1.66 BLDG 11 BDF 13 BDF 11 BDF 12 BDF 13 BDF Grand Total 898 2013 473 77 1463 units Avert Page 504 of 971 South Building Parking Floor DUs Total City Comm. Res. Ratio 1 22 73 40 0 33 1.50 1.5 0 114 114 0 0 0.00 2 61 110 30 0 80 1.31 3 63 114 30 0 84 1.33 4 63 114 22 0 92 1.46 5 63 114 0 17 97 1.54 6 63 114 0 0 114 1.81 7 63 114 0 0 114 1.81 8 59 1 118 0 0 118 2.00 Total 457 1 985 236 17 732 1.60 BLDG 11 BDF 13 BDF 11 BDF 12 BDF 13 BDF Grand Total 898 2013 473 77 1463 units Avert Page 504 of 971 G I - North Parcel i PER LEVELS Level 1st Level 2"d Levels 3rd - 7th Level 8th TOTAL AREA LEASABLE AREA (NRSF) % TOTALS 110/1 B: ST 2 4 20 3 29 550 sf 15,950 sf 1 6.6% T& 1BDR + DEN: Al 1 6 35 6 48 793 sf 38,064 sf AIM 1 14 70 13 98 749 sf 73,402 sf 48.1% A2 0 4 20 4 28 698 sf 19,544 sf 46.0% B1 2 3 20 4 29 950 sf 27,550 sf R: B2 1 3 15 3 22 980 sf 21,560 sf C1 2 3 15 3 23 1,083 sf 24,909 sf 37.9% C2 5 16 85 16 122 1,156 sf 141,032 sf R: D1 0 1 5 1 7 1,341 sf 9,387 sf D2 0 5 25 5 35 1,461 sf 51,135 sf 9.5% per Level 14 59 310 58 age Unit Size 958 sf /Building 441 dus I 422,533 sf 100.0% G II - South Parcel i PER LEVELS" Level 1st Level 2nd Levels 3rd -7 th Level 8th TOTAL AREA LEASABLE AREA (NRSF) % TOTALS 110/1 B: ST 2 4 20 4 30 550 sf 16,500 sf 6.6% R &1BDR+ DEN: Al 0 10 55 11 76 793 sf 60,268 sf AIM 5 12 60 8 85 749 sf 63,665 sf 48.1% A2 0 4 20 4 28 698 sf 19,544 sf B1 3 4 20 4 31 950 sf 29,450 sf R: B2 1 1 5 1 8 980 sf 7,840 sf C1 1 9 1 45 9 64 1,083 sf 69,312 sf 38.9% C2 9 13 70 14 106 1,156 sf 122,536 sf R: D1 1 3 15 3 22 1,341 sf 29,502 sf D2 0 1 5 1 7 1,461 sf 10,227 sf 6.3% per Level 22 61 315 59 age Unit Size 938 sf /Building 457 dus 428,844 sf 100.0% (.evel, I Leve f 1 Lural Level Leveq Levd Level Lveq........ 7 Level Total l evel I evel I Total) Page 505 of 971 Provided Parking BLDG 11 (South Parcel) 9 STORY GARAGE ..5 9, STORY GARAGE Standard Compact HC Totall per Level 60 sp 8 sp 5 sp 73 sp 103 sp 11 sp sp 114 sp 96 sp 11 sp 3 sp 110 sp 101 sp 11 sp 2 sp 114 sp 101 sp 11 sp 2 sp 114 sp 101 sp 11 sp 2 sp 114 sp 101 sp 101 sp 11 sp 11 sp 2 sp 2 sp 114 sp 114 sp 105 sp 11 sp 2 sp 118 sp pub-Tbtal 869 sf 96 sf 20 sf Provided Ratio 985 sp 2.1 sp/unit 10028 sp 2.23 s�uni Provided Parking BLDG 11 (South Parcel) ..5 9, STORY GARAGE Standard Compact HC Totall per Level 60 sp 8 sp 5 sp 73 sp 103 sp 11 sp sp 114 sp 96 sp 11 sp 3 sp 110 sp 101 sp 11 sp 2 sp 114 sp 101 sp 11 sp 2 sp 114 sp 101 sp 11 sp 2 sp 114 sp 101 sp 101 sp 11 sp 11 sp 2 sp 2 sp 114 sp 114 sp 105 sp 11 sp 2 sp 118 sp pub-Tbtal 869 sf 96 sf 20 sf Provided Ratio 985 sp 2.1 sp/unit Page 506 of 971 01888887-5 52983123_1 EXHIBIT "D" SCHEMATIC DEPICTION OF PARKING SPACES 26 Page 507 of 971 NORTH GARAGE FLOOR 1: 54 CITY/PUBLIC 21 RESIDENT '1 NORTH GARAGE FLOOR 1.5: 120 CITY/PUBLIC Page 509 of 971 NORTH GARAGE FLOOR 2: 32 CITY/PUBLIC 83 RESIDENT NORTH GARAGE FLOOR 3: 31 CITY/PUBLIC 89 RESIDENT Page 511 of 971 .., ,,,,,, / ,,,:�,.e......:.... ,,,,,,,,., ,..p........ ....e.....,,,,,,,, t .............. ,,,,,,,,,,,,,;o. V V .....,,,,,,,,,,,,,,,, ,,. 1 .� 1 I 1 Page 511 of 971 NORTH GARAGE FLOOR 4: 32 COMMERCIAL 88 RESIDENT Page 512 of 971 NORTH GARAGE FLOOR 5: 28 COMMERCIAL 91 RESIDENI Page 513 of 971 Page 514 of 971 7 My Spaces 4 Resklent Spaces ..... .... .......... . .. ....... . ..... .... ............ ........... . .......... . 11 .......... .......... ................... ..................... SOUTH GARAGE FLOOR 1: . 33 RESIDENT . . ...... . ...... 40 CITY/PUBLIC ............... M I "IM—IT ......... .................. .. . ................... ........... ................... ...................... ............ .......... ............. ........................ .............. .................... ............... ...................... ................ ........................ ................. ........................ .................. ..................... . . ................ . ............ ............ I ............ ............. ........ - Ln .. ...... .................... Ent . . ................ . ........................... ........... - — .............................. ........... LLJ .............................. ............. ............ ................. . ..... ............... .. .. ...... Page 514 of 971 7 My Spaces 4 Resklent Spaces SOUTH GARAGE FLOOR 1.5: 114 CITY/PUBLIC Page 515 of 971 SOUTH GARAGE FLOOR 2: 30 CITY/PUBLIC 80 RESIDENT Page 516 of 971 SOUTH GARAGE FLOOR 3: 30 CITY/PUBLIC 84 RESIDENT Page 517 of 971 SOUTH GARAGE FLOOR 4: 22 CITY mit 92 RESIDENT A . ... ...... .... ...... .. ........ ... . . ...... m.. ...... . .. ....... I . jj ............. ... ....... ...... .............. . . . . . ........................ ............. . ............... . ........ . .............. Page 518 of 971 SOUTH GARAGE FLOOR 4: 17 COMMERCIAL 97 RESIDENT Page 519 of 971 EXHIBIT "E" CONFIRMATION OF COMMENCEMENT DATE PARKING LEASE AGREEMENT FOR THE NORTH GARAGE The parties hereto agree and confirm that the date of the Final Certificate of Occupancy for the North Garage has been issued, dated , 202. Pursuant to the definition of "Commencement Date" in paragraph 9(a)(ii) of the Parking Lease Agreement for the North Garage dated , 2023, the Commencement Date for the Term of the Parking Lease Agreement for the North Garage shall be , 202 . CITY: WITNESSES: Print Name: Print Name: 01888887-5 52983123_1 OWNER: 27 CITY OF BOYNTON BEACH Mayor BOYNTON BEACH TOWN CENTER APARTMENTS, LLC, a Florida limited liability company By: Name: Title: Page 520 of 971 PARKING LEASE AGREEMENT South Garage THIS PARKING LEASE AGREEMENT (the "Agreement") is entered into this day of 2023, by and between BOYNTON BEACH TOWN CENTER APARTMENTS, LLC, a Florida limited liability company ("Owner"), and CITY OF BOYNTON BEACH ("City"). WITNESSETH: WHEREAS, Owner owns certain real property in Boynton Beach, Florida, as more particularly depicted on the attached Exhibit "A" (collectively, "Property"), together with all rights, easements and appurtenances belonging or in any way pertaining thereto, and all improvements to be constructed thereon, including without limitation certain buildings, and a parking garage commonly known Garage South (the "Garage"); WHEREAS, Owner, itself or through an affiliate thereof, and City have entered into a Development Agreement of even date herewith (the "Development Agreement") governing, among other things, development of the Garage, and Owner's obligations to commence construction thereunder; and WHEREAS, pursuant to the Development Agreement and that certain City -approved master plan attached hereto as Exhibit `B" (the "Master Plan"), the Garage contemplated for construction on the Property is anticipated to contain a total of approximately 1026 parking spaces; and WHEREAS, pursuant to that certain Parking Allocation attached hereto as Exhibit "C" ("Parking Allocation"), the approximately 983 parking spaces in the Garage shall be allocated as follows: a. 236 parking spaces which are being leased by Owner to City pursuant and subject to the terms and conditions in this Agreement (the "City Spaces"). b. 747 parking spaces which are not being leased to City and are reserved by Owner for the exclusive use of its residential and commercial tenants, as depicted in the Parking Allocation as "Residential and Guest" and "Commercial" (together the "Owner Controlled Spaces"; the City Spaces and the Owner Controlled Spaces are referred to hereinafter together as "All Spaces"); and WHEREAS, Owner desires to lease the City Spaces to City, upon the terms and conditions set forth herein; and WHEREAS, once constructed, the Garage will provide required parking for certain City buildings and facilities; 01889373-1 52983123_1 Page 521 of 971 WHEREAS, pursuant to the Master Plan, Owner plans to construct a second parking garage ("South Garage"); and WHEREAS, simultaneous with the execution of this Agreement the parties intend to execute a substantially similar parking lease agreement for parking spaces in the South Garage; NOW, THEREFORE, in consideration of their mutual promises, covenants and intending to be legally bound, the parties hereto agree as follows: 1. Recitals. The foregoing recitals are true and correct and are incorporated herein by reference. 2. Construction of Garage. The Garage will be constructed pursuant to the terms and conditions of the Master Plan and the Development Agreement and any development orders issued for the Garage. 3. Lease of City Spaces. Owner hereby leases to City and City hereby leases from Owner, pursuant and subject to the terms and conditions of this Agreement, the City Spaces, together with the nonexclusive use, in common with others entitled thereto, of the Common Areas, for the purpose of accessing and using the City Spaces. As constructed and installed, the City Spaces shall be located within the areas designated as the City Spaces in the site plan to be submitted to City for its approval, provided that such spaces shall be on the same levels of the Garage as depicted on the drawing attached hereto as Exhibit "D" (the remaining levels of the Garage being reserved for the Owner Controlled Spaces). The parties understand that the attached Exhibit "D" is for illustrative purposes only, remains subject to site plan review, and nothing in this Agreement shall be deemed a site plan approval or relieve Owner of its obligations to obtain the same. Notwithstanding illustrative nature of Exhibit "D," the 237 City Spaces shall be as follows, subject to the terms herein: a. 171 parking spaces shall be designated "Exclusive City Spaces," which shall be for the exclusive use of the City 24 hours a day, 7 days a week. The Exclusive City Spaces shall be located no higher in the Garage than the ramp located between the mezzanine and second level of the Garage. No more than 10% of the Exclusive Parking Spaces may be compact spaces and no more than 1% of the Exclusive Parking Spaces may be motorcycle spaces. b. 65 City Spaces shall be designated "Nonexclusive City Spaces," which shall be for the exclusive use of the City between the hours of 7:30 am to 6:30 pm, Monday through Friday (the "City Control Hours"). Except during the City Control Hours, Owner may utilize the Nonexclusive City Spaces for other parking purposes, including commercial parking and residential parking; provided however, that Owner's use of the Nonexclusive Parking Spaces shall not be counted towards required parking for Owner's residential and commercial tenants for site planning purposes. No more than 10% of the Nonexclusive Parking Spaces may be compact spaces and no more than 1% of the Nonexclusive Parking Spaces may be motorcycle spaces. 01889373-1 52983123_1 2 Page 522 of 971 c. During the site planning process, the parties may agree to swap the location of a portion of the City Spaces with certain of those spaces depicted as "commercial spaces" on Exhibit "D." 4. Owner Controlled Spaces. Owner shall have the absolute right to use and control the Owner Controlled Spaces for the purpose of providing parking for its residential and commercial tenants on an exclusive basis, pursuant to rules and regulations binding such tenants as determined by Owner from time to time in its sole discretion, notwithstanding anything in this Agreement to the contrary (provided such rules and regulations shall not materially affect the use of or access to the City Spaces and are in compliance with all applicable city, state, and federal ordinances, laws, rules, and regulations). Further, Owner shall have the right to install a gate or other mechanism within the Garage, to be installed, modified, replaced, repaired and maintained at Owner's sole cost, which shall restrict access to the Owner Controlled Spaces as deemed appropriate by Owner in its sole and absolute discretion (the "Gate"); it being understood and agreed that the Owner Controlled Spaces are intended and reserved exclusively for the use and enjoyment of Owner's tenants, are not being leased to City, and City shall have no rights (possessory or otherwise) with respect thereto (except to enforce Owner's express obligations hereunder if necessary). Notwithstanding the foregoing, Owner's installation, maintenance, modification, replacement and repair of the Gate shall not materially interfere with City's and the public's use of the City Spaces, and all such work shall be performed in accordance with all Legal Requirements. In the event that City and Owner later agree that certain City Spaces may be located behind a Gate, such agreement shall be expressly conditioned on the understanding that the Owner may not deny the City (or City's designee, if any) access to the City Spaces behind the Gate for any reason whatsoever (it being understood that such City Spaces may be located behind the Gate, but the City (or its designee) shall at all times have continuous and uninterrupted access (via a gate fob, "clicker" or otherwise) through the Gate to and from such City Spaces). Additionally, Owner shall have the right, from time to time, alter or modify the use, design or structure (or any combination thereof) of that portion of the Garage comprising the Owner Controlled Spaces and the Common Area appurtenant thereto (the "Owner Alteration"), provided (i) Owner obtains all necessary permits and approvals for the applicable governmental authorities, (ii) the Owner Alteration, including alteration of the Common Areas appurtenant to such Owner Controlled Spaces, shall not disturb the City Spaces or the use thereof (as permitted in this Agreement). 5. Management of Garage. Owner, itself or through an affiliate or management company designated by Owner in its sole discretion, shall operate and maintain the Garage as a first-class facility and shall, in such capacity, among other things, assess City its Proportionate Share of Operating Expenses pursuant to Section 9 below. Notwithstanding the foregoing, however, if any portion of the City Spaces (or the Common Areas appurtenant thereto) are subject to any interference, action, condition, material waste or damage not caused solely by Owner, its agents, contractors, tenants or designees and which, in Owner's reasonable discretion, (i) impedes or restricts access to the Common Areas and/or Owner Controlled Spaces (ii) creates a visual, audial or other nuisance, (iii) violates any applicable laws or codes which violations can be lawfully remediated by Owner, (iv) violates the any of the Rules and Regulations (defined below) or (v) otherwise causes the Garage to be less than a "first-class" facility (any of the foregoing, a "Violation"), then Owner shall have the right to tow or boot vehicles, perform extra cleaning or 01889373-1 52983123_1 3 Page 523 of 971 maintenance, contact the appropriate authorities, replace or repair damage or take such other action as Owner reasonably believes is necessary to remedy such violation and City shall reimburse Owner's actual charges therefor within forty-five (45) days of delivery of an invoice with reasonable detail. Reimbursement for any such Violation shall be in addition to any Operating Expenses for which City is otherwise responsible. Owner shall have the right, but not the obligation, to create reasonable rules and regulations for use of the Garage ("Rules and Regulations") which shall be uniformly applied in a non-discriminatory manner and shall be effective upon delivery of a copy thereof to City; provided however, that any such Rules and Regulations shall not impede or disrupt the City's rights under this Agreement (including the City's rights to use and access the City Spaces), and including the right to park vehicles in the Exclusive City Spaces during hurricanes or other natural disasters. The Owner shall operate the Garage in compliance with all applicable 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 Garage is located. Owner shall comply with all such laws, ordinances, regulations, codes and orders now in effect or hereafter enacted or passed during the Term. 6. Term and Commencement of Term. This Agreement shall be in full force and effect from the date of the issuance of the final Certificate of Occupancy (or equivalent certification) for the Garage ("Effective Date"). The term of the Agreement ("Term") shall commence on the date first written above. Unless sooner terminated pursuant to the terms of this Agreement, the Term shall continue from the Commencement Date for aperiod of one hundred (100) years and shall terminate at midnight on the last day of the one hundredth (100th) Lease Year (as hereinafter defined) ("Expiration Date"). 7. Rent and Expenses. (a) Pursuant to the Development Agreement, City has provided consideration to Owner for the use of the City Spaces for the Term set forth herein, the sufficiency of which Owner hereby acknowledges. (b) The City shall pay its Proportionate Share of the Operating Expenses (as defined in Section 9) related to the maintenance and operation of the Garage. 8. Sales Tax Exemption. Notwithstanding anything to the contrary set forth in this Agreement, so long as City obtains and provides a true, correct, and complete copy of a sales tax exemption certificate, issued by the Florida Department of Revenue to Owner contemporaneously with City's execution and delivery of this Agreement, City shall be exempted from paying sales tax (from which it is so exempt) under this Agreement. City shall, not later than thirty (30) days before the end of each calendar year throughout the Term provide to Owner an updated sales tax exemption certificate from the Florida Department of Revenue to establish City's exemption from sales tax for the upcoming year. In the event that, at any time during the Term, City no longer holds a valid sales tax exemption certificate from the Florida Department of Revenue or it is determined by the Florida Department of Revenue that sales tax is otherwise due on the amounts payable by City under this Agreement for any reason whatsoever, then City shall be liable for all sales taxes due under this Agreement and shall promptly remit same to Owner. City may, upon written notice to Owner, request that Owner contest any such taxes, assessments and other charges that City reasonably determines, in its good faith judgment, are not appropriate or applicable. Owner may elect, but shall 01889373-1 52983123_1 M Page 524 of 971 not be obligated, to accept any request by City to contest such taxes, assessments and/or other charges. In the event Owner elects to accept City's request, City shall reimburse Owner for all actual costs and expenses incurred by Owner in connection with contesting such taxes, assessments and/or other charges on City's behalf (including, without limitation, reasonable attorneys' fees) within thirty (30) days of Owner's written demand therefor. Notwithstanding any pending tax or assessment contest, City shall be obligated to pay, when and as due under this Agreement, all taxes, assessments or other charges so contested. City's obligation to pay any taxes, assessments and/or other charges under this Agreement shall not be contingent upon the resolution of any such tax contest. Owner shall provide the City with a credit for all taxes, assessments and other charges which are awarded to Owner in such tax contest to the extent applicable to City's Proportionate Share. 9. Expenses. (a) Definitions. For purposes of this Agreement, the following terms shall have the meanings set forth below: (i) "City's Proportionate Share of Operating Expenses" shall be calculated as follows: the City shall be charged 100% of the Operating Expenses associated with the Exclusive City Spaces, which shall be calculated by dividing the number of Exclusive City Spaces by the number of total Garage spaces, then multiplying the resulting number by the total Operating Expenses of the Garage. The City shall also be charged 33% of the Operating Expenses associated with the Nonexclusive City Spaces, which shall be calculated by dividing the number of Nonexclusive City Spaces by the number of total Garage spaces, which resulting amount shall be multiplied by .33, which shall then be multiplied by the Operating Expenses of the Garage. The multiplier .33 is determined by dividing the number of hours the City will control the Nonexclusive City Spaces during one week by 168 and rounding to the nearest two decimal places. The Operating Expenses of the Exclusive City Spaces shall be added to the Operating Expenses of the Nonexclusive Spaces to determine the City's Proportionate Share of Operating Expenses. Figure 1, below, contains a mathematical illustration of the calculation described in this Section 9(a)(i). 01889373-1 52983123_1 k, Page 525 of 971 Figure 1: City's Proportionate Share of Operating Expenses Calculation Number of Exclusive City Spaces x Operatnng Expenses = 'Number of Total Garage Spaces Number of Nonexclusive City Spaces x .33 x Operatnng Expenses = Number of Total Garage Spaces Operating Expenses for Operating Expenses for Exclusive City Spaces � NonexcluslVe City Spaces Operating Expenses for Exclusive City Spaces Operatinug Expenses for -Nonexclusive City Spaces City s Proportionate Share of Operating Expenses At present, the parties anticipate that the City's Proportionate Share of Operating Expenses shall be 19.57% of the total Operating Expenses of the Garage. (ii) "Commencement Date" shall mean that "Commencement Date" as set forth in that certain Confirmation of Commencement Date completed and executed by City and Owner on the form attached as Exhibit "E" hereto. Upon the issuance of a final certificate of occupancy for the Garage (or upon another milestone agreed in writing by Owner and City), then Owner and City shall promptly execute the Confirmation of Commencement Date with the applicable date of issuance of such certificate of occupancy (or other agreed date) inserted as the Commencement Date. (iii) "Common Areas" shall mean all areas located within the Garage excluding the actual parking spaces comprising All Spaces. To avoid confusion, Common Areas shall include all utilities, drainage, driveways, structures, elevators, ductwork, risers, decoration (including, without limitation, artwork), landscaping, ramps and all other portions of the Garage, including, without limitation, those Common Areas which serve the Garage and/or All Spaces. (iv) "Lease Year" shall mean the following time periods: the first Lease Year shall commence upon the Commencement Date and end on December 31; and each Lease Year thereafter shall commence upon January 1 after the end of the prior Lease Year, and shall end on 01889373-1 52983123_1 6 Page 526 of 971 December 31 of that year. Any calculations based on the first Lease Year and last Lease Year shall be prorated accordingly. (v) "Operating Expenses" shall mean all costs and expenses which Owner actually incurs for operating, maintaining and repairing the Garage, the parking areas (including, without limitation, All Spaces), and the Common Areas. Operating Expenses shall include 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) market rate management fees, including, to the extent permitted under the 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, pest control, 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 Common Areas and window cleaning; (e) the cost of capital improvements to any portion of the Garage; (f) all taxes and assessments (including, without limitation, real estate taxes); (g) insurance costs; and (h) all other costs customarily treated as operating expenses or taxes in buildings of this nature. Operating Expenses do not include salary, benefits, or bonuses of Owner's employees or officers employed by Owner or any subsidiary of Owner or entity related to Owner; or other expenses not directly related to the operation of the Garage. Notwithstanding the foregoing, the City shall not be required to pay taxes and assessments from which it is lawfully exempt, and in the event Owner receives any reduction in taxes or assessments owed or paid, which reduction can be verified as resulting directly from the City's status as a governmental entity, such savings shall be passed directly on to the City. Any Operating Expenses associated solely with the Owner Controlled Spaces shall not be included in the calculation of City's Proportionate Share of Operating Expenses. (vi) Rights. City acknowledges that Owner shall have the right to install facilities within the Common Areas for the benefit of the Garage and to perform services for the benefit of the Garage, of Owner, of Owner's tenants, and of the licensees, employees, customers, visitors and invitees of the Garage, 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 Garage. Owner's costs of operating, maintaining and insuring any such facilities and providing any such services for the benefit of the Garage 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 Garage, shall be included, in proportionate share, in Operating Expenses for purposes hereof. Notwithstanding anything to the contrary in this Agreement, to the extent that any material improvements to the Garage contemplated by Owner directly affect the City Spaces or City's right to the use of the City Spaces, Owner shall be required to obtain the prior written consent of City, which consent shall not be unreasonably withheld, delayed or conditioned by City, and City shall be responsible for City's Proportionate Share of Operating Expenses with respect to such improvements. However, to the extent that any improvements to the Garage only: (A) Affect the City Spaces or City's right to the use of the City Spaces under this Agreement, City shall be solely responsible for all costs of construction, installation, maintenance, repair, and replacement of such improvements; and 01889373-1 52983123_1 7 Page 527 of 971 (B) Affect the Owner Controlled Spaces or Owner's right to the use of the Owner Controlled Spaces under this Agreement, 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 9(a)(i), the City's Proportionate Share of Operating Expenses (prorated for any partial Lease Year at the beginning or end of the Term). (c) Estimate. For each Lease Year during the Term, Owner shall supply City with an estimate of the City's Proportionate Share of Operating Expenses ("Owner's Estimated Expense Computation") for such Lease Year. City shall pay to Owner on the first day of each month during the Lease Year one -twelfth (1/12) of Owner's Estimated Expense Computation. For each Lease Year during the Term, Owner shall notify City of the actual annualized Operating Expenses for the Lease Year just concluded ("Owner's Actual Expense Computation"). Owner's Actual Expense Computation shall be prorated for any fraction of a Lease Year in which the Term begins or ends. If the Owner's Estimated Expense Computation paid by City to Owner with regard to any Lease Year is less than the Owner's Actual Expense Computation with regard to the same Lease Year, the amount of such shortfall shall be taken into account in calculating the Owner's Estimated Expense Computation for the following Lease Year (and shall thereby increase the following Lease 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 Lease Year exceeds the Owner's Actual Expense Computation with regard to the same Lease Year, the excess shall be taken into account in calculating the Owner's Estimated Expense Computation for the following Lease Year (and shall thereby decrease the following Lease Year's estimated payments by the amount of such excess). (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 Lease Year occurring during the term of the Agreement. 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 City has paid in excess of its 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 laws, codes and ordinances) 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 Garage; establish and, from time to time, change the level or grade of parking surfaces 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 City Spaces without the prior written consent of City, which consent shall not be unreasonably withheld, conditioned, or delayed. In no case shall the City Spaces 01889373-1 52983123_1 K, Page 528 of 971 be moved to a higher level than depicted on Exhibit "D" unless expressly consented to by the City in its sole discretion. (f) Demolition of Garage. After 30 years from the Effective Date, the Owner has the right to demolish the garage and construct new parking garage improvements on the Property; provided however that Owner may exercise such right only if the following conditions are met: (A) Except in cases where immediate demolition is required to protect public health or provide public safety, Owner shall provide the City at least one year's advance written notice of such demolition; (B) Owner must obtain, at its sole expense, all necessary approvals and permits; (C) Owner must, at its sole expense, provide to City parking in a substantially equivalent amount of parking spaces in an alternative location and with the same rights to use, occupy, manage, charge for (meter), and tow temporarily during the demolition and construction of the new parking garage. In the event the temporary parking provided is more than .25 miles from the entrance to City Hall, Owner shall provide, at its sole expense, shuttle service not less than once per hour and for which the average shuttle trip time does not exceed 15 minutes; and (D) Upon completion of the new parking garage, this Agreement shall remain in full force and effect and Developer and City shall recognize the new parking garage as the Garage. In the event Developer exercises its right to demolish the Garage, the City may, in its sole discretion, elect (x) to terminate this Agreement instead of accepting alternative parking arrangements, or (y) to allow the Agreement to remain in full force and effect but provide its own alternative parking arrangements, during which City shall not pay any fees or costs of any kind to Owner. 10. 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 ten (10%) per annum. If any check given to Owner for any 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. 11. Payment of Utilities. Subject to reimbursement by City as part of the Operating Expenses, Owner shall provide and pay for any electrical or other utility services required to operate the City Spaces. Owner makes no warranty or representation as to the quality or capacity of utility service to the City Spaces. 12. Use of City Spaces. (a) City shall use the City Spaces solely for the parking of motor vehicles and for no other purpose. The City may, in its sole discretion, allow the general public to park in all, some, or none of (i) the Exclusive City Spaces at all times and (ii) the Nonexclusive City Spaces only during the City Controlled Hours. 01889373-1 52983123_1 9 Page 529 of 971 (b) City acknowledges that all parking in the Garage is currently on a self -parking basis. City covenants and agrees that notwithstanding anything in Section 5 above or otherwise in this Agreement to the contrary, Owner shall have no obligation, liability, or responsibility to City should the City Spaces be occupied at any time or times by vehicles not so authorized or directed by Owner. (c) 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 City Spaces, including signage indicating that the Exclusive City Spaces are for the sole use of City, that the Nonexclusive Spaces are for the sole use of the City during the City Control Hours, 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 which shall not be unreasonably withheld, conditioned, or delayed. City, at its sole cost and expense, shall prior to installation of signage, obtain all required governmental, quasi -governmental, and other permits and approvals. (d) 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 City 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, conditioned, or delayed 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 the City 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, at the option of the City in its sole discretion, applied to reduce City's obligations with respect to 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. (e) City, at its sole expense, may also contract with a duly licensed towing company to service the City Spaces and to enforce the signage described in Section 12(c), 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. (f) City, at its sole expense, may also contract with a management company to operate the City Spaces or any aspect thereof, including metering, charging, maintenance, signage, and other aspects. Such manager shall reasonably coordinate with Owner and any manager employed by Owner for the operation of the Garage. This Section 12(f) shall not interfere with or 01889373-1 52983123_1 10 Page 530 of 971 reduce the Owner's rights pursuant to Sections 5 and 9 of this Agreement, including but not limited to the right to pass through to the City its proportionate share of the costs of operating the Garage. (g) City covenants that, during the Term, no part of the City Spaces shall be used in any manner whatsoever for any purposes other than as set forth in this Section 12 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 City Spaces 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 City Spaces and any signs of the City are concerned (collectively, "Legal Requirements"). (h) The City Control Hours have been determined based on the operating hours of the City's facilities. In the event the such operating hours change, the City may request that Owner agree to modify the City Control Hours accordingly, which agreement shall not be unreasonably withheld, conditioned, or delayed, and in which case the City's Proportionate Share of Operating Expenses shall be adjusted accordingly. 13. City's Insurance. City may elect to self -insure against certain risks, including certain risks related to City's rights under this Agreement and to City's occupation or use of the City Spaces. 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 (or if City later elects to obtain insurance in lieu of self-insurance, then City shall immediately notify Owner in writing of such election and provide a certificate of insurance which conforms to the requirements of this Section). 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 Garage 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 Garage 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 Garage) limit the liability of City under this Agreement. 14. Waiver of Claims. Except for claims arising from Owner's intentional or negligent acts that are not covered by City's insurance required by this Agreement, subject to applicable law, City or any party claiming through City (or both) (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 Garage; (ii) wind, rain, hurricane, flooding, fire, explosion, hail, or other 01889373-1 52983123_1 11 Page 531 of 971 casualty or act of God; and (iii) vandalism, assault, battery, malicious mischief, theft or other acts or omissions of any third parties not caused by Owner's failure to operate the Garage in all material respects as required by this Agreement. 15. 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 City Spaces 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 up to the amount specified in Section 768.28, Florida Statutes, whether such claim lie in indemnity, contract, tort, or otherwise. This Section 15 shall survive the termination of the Agreement. 16. 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 negligence or intentional misconduct by Owner or any of its employees, independent contractors, invitees, guests, or agents. This Section 16 shall survive the termination of the Agreement. 17. 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 forty-five days (45) calendar days after City receives written notice of the failure to pay after the payment is due; (b) if City attempts to transfer its rights under this Agreement without Owner's prior written consent including any attempt to assign this Agreement or sublease all or any portion of the City Spaces without Owner's prior written consent; (c) if City violates any other material term, condition, or covenant in this Agreement which is to be performed by City, and fails to remedy the same within ninety (90) 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 ninety (90) days, City shall not be in default of this Agreement if City, during said ninety (90) day period, commences to cure the default and diligently continues in good faith to cure the default until completion. 18. Remedies of Owner. 01889373-1 52983123_1 12 Page 532 of 971 (a) If any monetary Event of Default by City occurs, then, in addition to any other remedies of Owner, Owner shall have Owner shall have the right to bring an action to recover all sums due, which may include an action for revenues generated by the City Spaces (including, if necessary, court selection of a receiver) to be paid to Owner up to the amount owed. (b) 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. (c) 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 City Spaces 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. Any amounts which may be due Owner shall include any costs, expenses, or any other amounts payable pursuant to this Agreement. (d) 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 Agreement or to add City as an additional insured under a policy of Owner's as to City's rights under this Agreement, and Owner shall have the right to charge City for any amounts required to purchase such insurance (or to be reimbursed for such amounts). (e) Any and all rights, remedies and options given in this Agreement to Owner shall be cumulative and in addition to and withoutwaiver of, or in derogation of, any right or remedy under this Agreement or provided under any law now or hereafter in effect. (f) No cure periods shall apply to any emergencies or to failure to maintain and furnish insurance. (g) It is expressly understood that the remedies provided in the Event of Default by the City shall be in the form of damages or equitable relief, which may include, specific performance, and injunctive relief (it being understood monetary damages may not be a sufficient remedy for City's default hereunder), and shall not result in termination of this Agreement. 19. 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 ninety (90) 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 ninety (90) days, Owner shall not be in default of this Agreement if Owner, during such ninety (90) day period, commences to cure the default and diligently continues in good faith to cure the default until completion. 01889373-1 52983123_1 13 Page 533 of 971 20. 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, may seek damages or specific performance, which may include injunctive relief, and may exercise any right or remedy now or hereafter existing at law or in equity or by statute. 21. 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. 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. 22. No Assignment or Sublease/Change in Ownership. (a) City may not assign this Agreement in whole or in part, nor sublease all or any portion of the City Spaces, 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 City Spaces in the ordinary course, whether with or without charge, on an hourly or daily basis. The consent by Owner to any assignment or sublease shall not constitute a waiver of the necessity for such consent to any subsequent assignment or sublease. No assignment, sublease, occupancy or collection shall be deemed acceptance of the assignee, sub -lessee, or occupant, or as a release of City from the further performance by City of the covenants on the part of City herein contained. Despite Owner's consent to an assignment or sublease, 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 rent or other sums to be paid hereunder unless otherwise expressly consented to by Owner in its sole discretion. Any attempted assignment or sublease 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 City Spaces and the Property, and all right and interest of Owner in this Agreement, may be conveyed or assigned at the sole discretion of Owner at any time provided such conveyance or assignment is of the whole Agreement and the party conveyed or assigned to is recognized as Owner under this Agreement. (c) If Owner, in its sole and absolute discretion, consents to an assignment or sublease of all or any portion of the City Spaces, the form of such documents shall be as acceptable to Owner in its sole and absolute discretion. 23. Subordination and Attornment. (a) From time to time, Owner may request the City to subordinate its rights hereunder to mortgage or other method of financing or refinancing through a subordination, non- disturbance, and attomment agreement ("SNDA"). Any subordination must be effectuated through an SNDA reasonably acceptable to the City so as to ensure the City's rights under this Agreement are continued without interruption for the Term of this Agreement. So long as the above-described 01889373-1 52983123_1 14 Page 534 of 971 conditions are met and the City has adequate assurances this Agreement will not be disturbed, the City shall approve of the SNDA. So long as such request is received more than 10 days before a City Commission meeting, the SNDA shall be placed on the next City Commission agenda, and if received less than 10 days before the next City Commission meeting, shall be placed on the agenda of the next available regularly scheduled meeting. Further, the City and Owner agree to work together with reasonable diligence and in good faith to create a standard form of SNDA to expedite such requests. (b) If any proceedings are brought for the foreclosure of, or if exercise of the power of sale occurs under, any mortgage covering the City Spaces 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. 24. 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 24, execute, acknowledge and deliver to the parry 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 parry 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 parry to execute, acknowledge and deliver to the other a statement in accordance with the provisions of this Section 24 within such thirty (30) day period shall constitute an acknowledgment, by the parry 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 City Spaces or this Agreement from or through the other parry, 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 24 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. 25. Right of Entry. Owner and Owner's agents may enter the Garage at all reasonable times to examine the City Spaces (as well as other portions of the Garage), and to show the Garage to prospective purchasers, mortgagees, or other interested parties, and to make such repairs, alterations, improvements or additions as Owner may deem necessary or desirable (including, without limitation, actions taken pursuant to Section 5 or 9 above), and Owner shall be allowed to take all material into and upon the City Spaces that may be required therefor without the same constituting a termination of or infringement upon City's rights in whole or in part, provided however that should such material remain in the City Spaces more than 3 calendar days the amounts payable to Owner shall be abated in proportion to the reasonably determined loss of use and access to the City Spaces while the repairs, alterations, improvements, or additions are being made. If City shall not be present to open and permit 01889373-1 52983123_1 15 Page 535 of 971 entry into the City Spaces, 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. 26. Hazardous Materials and Environmental Laws; Indemnity. City shall not cause or permit the City Spaces 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 City Spaces 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 any activity conducted thereon, and from any use, generation, handling, storage, transportation, disposal or release of Hazardous Materials at or in connection with the Garage 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 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", "containments", or other pollution under applicable federal, state, commonwealth, 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. 27. Time of the Essence. Time is of the essence regarding the performance of every provision of this Agreement. 28. 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 (which term Owner, for the purposes of this Section 28 only includes any party with a real property interest in any portion the Property) 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 City Spaces, 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 City Spaces, 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 01889373-1 52983123_1 16 Page 536 of 971 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 City Spaces. In the event of Owner bankruptcy, all City's rights under this Agreement (including the rights of use and access to the City Spaces, and amount and timing of payment) shall be considered appurtenant to the Property for the balance of the Term and shall be considered enforceable rights but may be subject to any limitation or subordination found in any SNDA entered into pursuant to Section 23(a) above. 29. 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, OR (11) CITY'S USE OF CITY SPACES AND THE GARAGE. 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. 30. 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 30(a) or Section 30(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: Dan Dugger, City Manager 100 E. Ocean Avenue Boynton Beach, FL 33435 Email: DuggerD@bbfl.us With a copy to: Michael Cirullo, Jr. Goren Cherof Doody and Ezrol, PA 3099 East Commercial Boulevard Suite 200 Fort Lauderdale, FL 33308 MCirullo(&- wrencherof.com 01889373-1 52983123_1 17 Page 537 of 971 Kathryn Rossmell Lewis, Longman & Walker, PA 360 S. Rosemary Avenue Suite 1100 West Palm Beach, FL 33401 krossmell (r&11w-law.com If to Owner: Jerneb Acquisition Corp. I c/o Time Equities, Inc. 55 Fifth Avenue —15'h Floor New York, New York 10003 Attention: Robert Kantor and Robert Singer Email: rkantor(r&timeequities.com rsing er &timeecluities.com With a copy to: Mark J. Lynn, Esq. Greenspoon Marder LLP 200 E. Broward Boulevard Suite 1800 Fort Lauderdale, FL 33301 e-mail: mark. lynn2gmlaw.com 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. 31. 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 City Spaces 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 City Spaces except as herein expressly set forth, and all representations, either oral or written, shall be deemed to be merged into this Agreement. Except 01889373-1 52983123_1 18 Page 538 of 971 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 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 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) 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. 01889373-1 52983123_1 19 Page 539 of 971 (h) 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, shall be brought exclusively in the courts of Palm Beach County, Florida. (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. Except as expressly provided herein, 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 rights of sovereign immunity or extend the City's liability beyond the limits established in Section 768.28 of the Florida Statutes, as it may be amended from time to time. Nothing in this Agreement shall be deemed a waiver of the City's rights of sovereign immunity, and in no case shall the City's liability exceed the amount specified in Section 768.28, Florida Statutes, whether such claim lie in indemnity, contract, tort, or otherwise. (o) Recorded Document. The City shall record this Agreement or a memorandum thereof in the Public Records of Palm Beach County, Florida. 01889373-1 52983123_1 [SIGNATURES ON FOLLOWING PAGE] 20 Page 540 of 971 This Parking Lease Agreement is entered into and acknowledged by City and Owner as of the date first stated above. Approved for Form by City Attorney 01889373-1 52983123_1 21 CITY: CITY OF BOYNTON BEACH Ty Penserga, Mayor Page 541 of 971 WITNESSES: Print Name: Print Name: 01889373-1 52983123_1 22 OWNER: BOYNTON BEACH TOWN CENTER APARTMENTS, LLC, a Florida limited liability company By: Name: Title: Page 542 of 971 EXHIBIT "A" THE PROPERTY Parcel 7, Boynton Beach Town Square, according to the plat thereof, as recorded in Plat Book 127, Page 1, of the Public Records of Palm Beach County, Florida. 01889373-1 52983123_1 23 Page 543 of 971 01889373-1 52983123_1 EXHIBIT "B" MASTER PLAN 24 Page 544 of 971 PHASE =3 NORTH RESIDENTIAL/ COMMERCIAL 441 UNITS TPHASE 11 PHASE G&ERNM�INT/ .. CENTRAL PARCEL CIVIC R_ 1'�E P" xo IF, PHASE 1 GOVERNMENT/ rVIC " � T, PI'II,LIlIPl DEVELOPMENT TEAM — — — — — — — — — -..... 11A""El TIA11111 FlIA -IL FlF1' I'L "'I' EN-ElB 11,11411 AlIlITIIT 11 A 1111111 "I" IF,Ise LSF AacLA" 'C'APE 1 N'O'11�14�l L 11, 1 A K I I NN B IA I I 1.NTlFLALl T111 P_ _ 11 Exhibit D - Master Plan LOCATION MAP urban E= desin stuc?(0 U- D n 6 PInq NOUN L.ndcape A -It ... B, PHASE2 SOUTH RESIDENTIA= 1 of 2 COMMERCIAL 4 4�' UNITS 5 UNITS Bn� � T, PI'II,LIlIPl DEVELOPMENT TEAM — — — — — — — — — -..... 11A""El TIA11111 FlIA -IL FlF1' I'L "'I' EN-ElB 11,11411 AlIlITIIT 11 A 1111111 "I" IF,Ise LSF AacLA" 'C'APE 1 N'O'11�14�l L 11, 1 A K I I NN B IA I I 1.NTlFLALl T111 P_ _ 11 Exhibit D - Master Plan LOCATION MAP urban E= desin stuc?(0 U- D n 6 PInq NOUN L.ndcape A -It ... B, FIRE STATION PARCEL 1 of 2 02 09, 2023 ---------- SITE DATA IFN �� ...... ...... N'ENL_ F'N �EBI INTF PANNBT 1.11EP -11 Al 1 -11 IIA P'gP MAGNUSON PROJECT SUMMARY HOUSE cep EA ... P-1 P-I.E. 'AREA' OR Op.='.m.II Inc B, LEms�6r O.lE-IINNl LU IF,, -"Em I 11, 4 111 IN N— I N- I 1114PI NI. ll—_ 11TI1111111. GROSS AREA 115622 5�62 676,946 662,757 'PLATTED PLPROD ECT AREA :3 rvcwoE L='l`LFP="K'FlHL'TLP, , 1 N- L" F cy U_ USEABLE OPEN SPACE CALCULATION GROB,- SIT, ARFRss A z III Ii LIIALNII IELFA Pl.lABl lO 1-111 INAP I 'El III ,1FIZUB11%, I'll I P"""' 0 NOTES IN. PEL I 11 IF NPLITER PLAN PN.PP— B.INEPLIES OT ANN LUPPIELF ElS ILE BRO. - ILE EEI.FNE) PUT( 121 RPOEIF I I PI111D s". -l' ONT _FHE 0 M I— 21 SILL 11 11 111 *1" PPP -1-1 ,lNFJ LET 111BUT PI 11 FIFAAAAL PLO PINIFIN, LF'E.':AN'N 0F'NFBP Z.�B1I I �ION,TON.ONlPlAN_�l 1�91PENIEPE11:- P-1 LIN 11 l 2 11 51111 1 PHASE I A AN, N UI. N011 F 4 PEP(S) LLF OF 0PAPOEO ON P-PBB 4 511B 'NUBA... ON ME APP-1—AND F—E.T I FILE PIN PPPN—LS ANN LE.NUN. IFR�r Pl- ANO -111T I FILION.1 I III N - 9l III, III PI—F-LLK =_N_ FlIFIAINFRIPPIFLIT. NORTH 121 -NI I LEGEND 11 1111EPH NIPIIAL - 11 11 TO , tN)1111 IT 11`1111 IFILL BE *111 11111LI ONILL —111 FTIMI IF III PLAN IRPLIOPIII OT UPILIFF PIRS IIEL BE IBIONAID UNDLEBOOPNO SUBJECI 10 11 All MSP -1 of 2 -ND Exhibit D - Master Plan 2 of 2 02 09, 2023 -- -- --- ---- ------- ------ -------------- PARKING - SPA - CES REWIRED ------------- �FUSE SJ -Sp NCES 01889373-1 52983123_1 EXHIBIT "C" PARKING ALLOCATION 25 Page 547 of 971 BLDG 11 BDF 13 BDF 11 BDF 12 BDF 13 BDF Grand Total 898 2013 473 77 1463 units Avert Page 548 of 971 North Building Parking Floor DUs Total City Comm. Res. Ratio 1 14 75 54 0 21 1.50 1.5 0 120 120 0 0 0.00 2 59 115 32 0 83 1.41 3 62 120 31 0 89 1.44 4 62 120 0 32 88 1.42 5 62 119 0 28 91 1.47 6 62 119 0 0 119 1.92 7 62 119 0 0 119 1.92 8 58 1 121 0 0 121 2.09 Total 441 1 1028 237 60 731 1.66 BLDG 11 BDF 13 BDF 11 BDF 12 BDF 13 BDF Grand Total 898 2013 473 77 1463 units Avert Page 548 of 971 South Building Parking Floor DUs Total City Comm. Res. Ratio 1 22 73 40 0 33 1.50 1.5 0 114 114 0 0 0.00 2 61 110 30 0 80 1.31 3 63 114 30 0 84 1.33 4 63 114 22 0 92 1.46 5 63 114 0 17 97 1.54 6 63 114 0 0 114 1.81 7 63 114 0 0 114 1.81 8 59 1 118 0 0 118 2.00 Total 457 1 985 236 17 732 1.60 BLDG 11 BDF 13 BDF 11 BDF 12 BDF 13 BDF Grand Total 898 2013 473 77 1463 units Avert Page 548 of 971 G I - North Parcel i PER LEVELS Level 1st Level 2"d Levels 3rd - 7th Level 8th TOTAL AREA LEASABLE AREA (NRSF) % TOTALS 110/1 B: ST 2 4 20 3 29 550 sf 15,950 sf 1 6.6% T& 1BDR + DEN: Al 1 6 35 6 48 793 sf 38,064 sf AIM 1 14 70 13 98 749 sf 73,402 sf 48.1% A2 0 4 20 4 28 698 sf 19,544 sf 46.0% B1 2 3 20 4 29 950 sf 27,550 sf R: B2 1 3 15 3 22 980 sf 21,560 sf C1 2 3 15 3 23 1,083 sf 24,909 sf 37.9% C2 5 16 85 16 122 1,156 sf 141,032 sf R: D1 0 1 5 1 7 1,341 sf 9,387 sf D2 0 5 25 5 35 1,461 sf 51,135 sf 9.5% per Level 14 59 310 58 age Unit Size 958 sf /Building 441 dus I 422,533 sf 100.0% G II - South Parcel i PER LEVELS" Level 1st Level 2nd Levels 3rd -7 th Level 8th TOTAL AREA LEASABLE AREA (NRSF) % TOTALS 110/1 B: ST 2 4 20 4 30 550 sf 16,500 sf 6.6% R &1BDR+ DEN: Al 0 10 55 11 76 793 sf 60,268 sf AIM 5 12 60 8 85 749 sf 63,665 sf 48.1% A2 0 4 20 4 28 698 sf 19,544 sf B1 3 4 20 4 31 950 sf 29,450 sf R: B2 1 1 5 1 8 980 sf 7,840 sf C1 1 9 1 45 9 64 1,083 sf 69,312 sf 38.9% C2 9 13 70 14 106 1,156 sf 122,536 sf R: D1 1 3 15 3 22 1,341 sf 29,502 sf D2 0 1 5 1 7 1,461 sf 10,227 sf 6.3% per Level 22 61 315 59 age Unit Size 938 sf /Building 457 dus 428,844 sf 100.0% (.evel, I Leve f 1 Lural Level Leveq Levd Level Lveq........ 7 Level Total l evel I evel I Total) Page 549 of 971 Provided Parking BLDG 11 (South Parcel) 9 STORY GARAGE ..5 9, STORY GARAGE Standard Compact HC Totall per Level 60 sp 8 sp 5 sp 73 sp 103 sp 11 sp sp 114 sp 96 sp 11 sp 3 sp 110 sp 101 sp 11 sp 2 sp 114 sp 101 sp 11 sp 2 sp 114 sp 101 sp 11 sp 2 sp 114 sp 101 sp 101 sp 11 sp 11 sp 2 sp 2 sp 114 sp 114 sp 105 sp 11 sp 2 sp 118 sp pub-Tbtal 869 sf 96 sf 20 sf Provided Ratio 985 sp 2.1 sp/unit 10028 sp 2.23 s�uni Provided Parking BLDG 11 (South Parcel) ..5 9, STORY GARAGE Standard Compact HC Totall per Level 60 sp 8 sp 5 sp 73 sp 103 sp 11 sp sp 114 sp 96 sp 11 sp 3 sp 110 sp 101 sp 11 sp 2 sp 114 sp 101 sp 11 sp 2 sp 114 sp 101 sp 11 sp 2 sp 114 sp 101 sp 101 sp 11 sp 11 sp 2 sp 2 sp 114 sp 114 sp 105 sp 11 sp 2 sp 118 sp pub-Tbtal 869 sf 96 sf 20 sf Provided Ratio 985 sp 2.1 sp/unit Page 550 of 971 01889373-1 52983123_1 EXHIBIT "D" SCHEMATIC DEPICTION OF PARKING SPACES 26 Page 551 of 971 NORTH GARAGE FLOOR 1: 54 CITY/PUBLIC 21 RESIDENT '1 NORTH GARAGE FLOOR 1.5: 120 CITY/PUBLIC Page 553 of 971 NORTH GARAGE FLOOR 2: 32 CITY/PUBLIC 83 RESIDENT NORTH GARAGE FLOOR 3: 31 CITY/PUBLIC 89 RESIDENT Page 555 of 971 .., ,,,,,, / ,,,:�,.e......:.... ,,,,,,,,., ,..p........ ....e.....,,,,,,,, t .............. ,,,,,,,,,,,,,;o. V V .....,,,,,,,,,,,,,,,, ,,. 1 .� 1 I 1 Page 555 of 971 NORTH GARAGE FLOOR 4: 32 COMMERCIAL 88 RESIDENT Page 556 of 971 NORTH GARAGE FLOOR 5: 28 COMMERCIAL 91 RESIDENI Page 557 of 971 Page 558 of 971 7 My Spaces 4 Resklent Spaces ..... .... .......... . .. ....... . ..... .... ............ ........... . .......... . 11 .......... .......... ................... ..................... SOUTH GARAGE FLOOR 1: . 33 RESIDENT . . ...... . ...... 40 CITY/PUBLIC ............... M I "IM—IT ......... .................. .. . ................... ........... ................... ...................... ............ .......... ............. ........................ .............. .................... ............... ...................... ................ ........................ ................. ........................ .................. ..................... . . ................ . ............ ............ I ............ ............. ........ - Ln .. ...... .................... Ent . . ................ . ........................... ........... - — .............................. ........... LLJ .............................. ............. ............ ................. . ..... ............... .. .. ...... Page 558 of 971 7 My Spaces 4 Resklent Spaces SOUTH GARAGE FLOOR 1.5: 114 CITY/PUBLIC Page 559 of 971 SOUTH GARAGE FLOOR 2: 30 CITY/PUBLIC 80 RESIDENT Page 560 of 971 SOUTH GARAGE FLOOR 3: 30 CITY/PUBLIC 84 RESIDENT Page 561 of 971 SOUTH GARAGE FLOOR 4: 22 CITY mit 92 RESIDENT A . ... ...... .... ...... .. ........ ... . . ...... m.. ...... . .. ....... I . jj ............. ... ....... ...... .............. . . . . . ........................ ............. . ............... . ........ . .............. Page 562 of 971 SOUTH GARAGE FLOOR 4: 17 COMMERCIAL 97 RESIDENT Page 563 of 971 EXHIBIT "E" CONFIRMATION OF COMMENCEMENT DATE PARKING LEASE AGREEMENT FOR THE NORTH GARAGE The parties hereto agree and confirm that the date of the Final Certificate of Occupancy for the North Garage has been issued, dated , 202. Pursuant to the definition of "Commencement Date" in paragraph 9(a)(ii) of the Parking Lease Agreement for the North Garage dated , 2023, the Commencement Date for the Term of the Parking Lease Agreement for the North Garage shall be , 202 . CITY: WITNESSES: Print Name: Print Name: 01889373-1 52983123_1 OWNER: 27 CITY OF BOYNTON BEACH Mayor BOYNTON BEACH TOWN CENTER APARTMENTS, LLC, a Florida limited liability company By: Name: Title: Page 564 of 971 E:3M Public Hearing 2/21/2023 Requested Action by Commission: Proposed Resolution No. R23-024 - Approve and authorize the Mayor to sign the Escrow Agreement and any and all documents associated therewith between the City of Boynton Beach and Boynton Beach Town Center Apartments, LLC., and Goren, Cherof, Doody & Ezrol, P.A., as Escrow Agents. Explanation of Request: Boynton Beach Town Center Apartments, LLC is under contract with J KM BTS North LLC, J KM BTS Central LLC and J KM BTS North LLC (collectively the J KM entities) to acquire property in Town Square. The City and the J KM entities have entered into a Settlement Agreement which is contingent on the closing of the transaction between Boynton Beach Town Center Apartments LLC and the J KM entitities, the Development Agreement and the Temporary Parking Easement Agreement, so the approved and executed documents will be held in escrow until the Closing and compliance with the terms of the Escrow Agreement. The City Attorney, Goren Cherof Doody and Ezrol, will be Escrow Agent How will this affect city programs or services? Approving the Escrow Agreement will facilitate the settlement between the City and the J KM entities, and the closing between the Boynton Beach Town Center Apartments LLC and the J KM entities Fiscal Impact: None Alternatives: None Strategic Plan: High Performing Organization Strategic Plan Application: This document will facilities the settlement between the City and the J KM entities and the closing of the transaction between Boynton Beach Town Center Apartments LLC and the J KM entities Climate Action Application: Is this a grant? Grant Amount: Attachments: Page 565 of 971 Type 10M Ag ir'EsE) rTIE) II'l t Description RE)SOkAboin approviing IEs(�,ir'(�)wAgir'EsEsiryiEsll'itwiitlh &B TCA E scrowAgir'E�IENrTIENI'lt Page 566 of 971 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 C7:-fo] ILI] i Col ►1:i*]ff1yZ1! A RESOLUTION OF THE CITY OF BOYNTON BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR TO SIGN THE ESCROW AGREEMENT AND ANY AND ALL DOCUMENTS ASSOCIATED THEREWITH BETWEEN THE CITY OF BOYNTON BEACH AND BOYNTON BEACH TOWN CENTER APARTMENTS, LLC., AND GOREN, CHEROF, DOODY & EZROL, P.A., AS ESCROW AGENTS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Boynton Beach Town Center Apartments, LLC (BBTCA) BBTCA is under contract with JKM BTS North, LLC, a Florida limited liability company, JKM BTS Central, LLC, a Florida limited liability company and JKM BTS South, LLC, a Florida limited liability company (together, "JKM") to acquire a portion of Property; and WHEREAS, in connection with the prospective development of that project commonly known as Boynton Beach Town Square the City and BBTCA have executed the following agreements: Development Agreement by City and BBTCA ("Development Agreement"), Temporary Parking Easement Agreement by City and BBTCA ("Temporary Parking Easement"), and Continuing Parking Lease Agreement (together, the "Escrow Documents); and WHEREAS, the City and BBTCA have agreed that the Escrow Documents shall be binding on the parties and released by the Escrow Agent, Goren, Cherof, Doody & Ezrol, P.A., only upon the occurrence of the Closings and upon compliance with the specific terms and conditions; and WHEREAS, the City Commission has determined that it is in the best interests of the residents of the City to approve and authorize the Mayor to sign the Escrow Agreement and any and all documents associated therewith between the City of Boynton Beach and Boynton Beach Town Center Apartments, LLC., and Goren, Cherof, Doody & Ezrol, P.A., as Escrow Agents. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: S:ACA\RESO\Agreements\Approve Escrow Agreement With BBTCA - Reso.Docx Page 567 of 971 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as being true and correct and are hereby made a specific part of this Resolution upon adoption hereof. Section 2. The City Commission hereby approves and authorizes the Mayor to sign the Escrow Agreement and any and all documents associated therewith between the City of Boynton Beach and Boynton Beach Town Center Apartments, LLC., and Goren, Cherof, Doody & Ezrol, P.A., as Escrow Agents. A copy of the Escrow Agreement is attached hereto and incorporated herein by reference as Exhibit "A". Section 3. This Resolution shall become effective immediately upon passage. PASSED AND ADOPTED this 21 st day of February, 2023. CITY OF BOYNTON BEACH, FLORIDA ATTEST: Maylee De Jesus, MPA, MMC City Clerk (Corporate Seal) Mayor — Ty Penserga YES NO Vice Mayor —Angela Cruz Commissioner— Woodrow L. Hay Commissioner — Thomas Turkin Commissioner —Aimee Kelley VOTE Ty Penserga Mayor APPROVED AS TO FORM: Michael D. Cirullo, Jr. City Attorney S:ACA\RESO\Agreements\Approve Escrow Agreement With BBTCA - Reso.Docx Page 568 of 971 ESCROW AGREEMENT This Escrow Agreement (the "Agreement"), is entered into this day of , 2023, among CITY OF BOYNTON BEACH, FLORIDA ("City") BOYNTON BEACH TOWN CENTER APARTMENTS, LLC, a Florida limited liability company (`BBTCA"), and Goren, Cherof, Doody & Ezrol, P.A., a Florida Profit Corporation ("Escrow Agent"). WITNESSETH: WHEREAS, in connection with the prospective development of that project commonly known as Boynton Beach Town Square bounded generally by Seacrest Blvd., E. Boynton Beach Blvd., SE 2nd Avenue and NE 1st Street in Boynton Beach, Florida, (the "Property"), City and BBTCA have executed the following agreements: a. Development Agreement by City and BBTCA("Development Agreement") (one original), b. Temporary Parking Easement Agreement by City and BBTCA ("Temporary Parking Easement") (two originals), and c. Continuing Parking Lease Agreement (two originals) together, the "Escrow Documents'; and WHEREAS, BBTCA is under contract with JKM BTS North, LLC, a Florida limited liability company, JKM BTS Central, LLC, a Florida limited liability company and JKM BTS South, LLC, a Florida limited liability company (together, "JKM") to acquire a portion of the Property, the closing of which is anticipated to occur on or before December 31, 2023 (the "JKM Closing"); and WHEREAS, prior to entering into this Agreement City and BBTCA have entered into that certain Land Swap Agreement pursuant to which, City will convey certain City -owned property to BBTCA in exchange for which BBTCA will simultaneously convey a portion of the property acquired from JKM to City (the "Land Swap Closing"), which closing shall occur simultaneously with the JKM Closing (the JKM Closing and the Land Swap Closing are referred to together as the "Closings"); and WHEREAS, JKM and City are in litigation regarding the terms of a prior development agreement between those parties in the case styled City of Boynton Beach v. JKM BTS Capital, LLC, Case No. 502020CA012780XXXXMB; which litigation will be fully resolved by the agreed terms of the Settlement Agreement, which Settlement Agreement is contingent upon the JKM Closing, the execution of the Development Agreement, and the Temporary Parking Easement becoming effective simultaneous with the effective date of the Development Agreement; and WHEREAS, City and BBTCA have agreed that the Escrow Documents shall be binding on the parties and released by Escrow Agent only upon the occurrence of the Closings and upon compliance with the following terms and conditions. NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and upon 01888469-3 Escrow Agreement - Boynton Beach project: 51781462_1 Page 569 of 971 and subject to the terms, provisions and conditions hereinafter set forth, City and BBTCA and Escrow Agent hereby agree as follows: Recitals. The Recitations set forth above are incorporated herein by this reference. 2. Receipt by Escrow Agent. Escrow Agent hereby acknowledges receipt of the Escrow Documents. 3. Release of Escrow Documents. Escrow Agent shall hold the Escrow Documents in escrow until the Closings occur. The occurrence of the Closings shall be evidenced by simultaneous execution and delivery to Escrow Agent of (i) a letter executed by BBTCA, confirming that the JKM Closing has occurred and Escrow Agent is authorized to release the Escrow Documents, and (ii) a joint letter executed by BBTCA and City, confirming that the Land Swap Closing has occurred and Escrow Agent is authorized to release the Escrow Documents (the "Confirming Letters"). Escrow Agent's receipt of the Confirming Letters via e-mail delivery shall constitute irrevocable and conclusive authorization for Escrow Agent to immediately release all of the Escrow Documents, as set forth below: a. Development Agreement — An executed copy shall be delivered via e-mail to City and BBTCA, with the original to be delivered to City via overnight delivery; b. Temporary Parking Easement Agreement — shall be recorded by Escrow Agent in the Public Records of Palm Beach County, Florida (after the recording of the applicable documents for the Closings) and a recorded copy shall be delivered via e-mail to City and BBTCA; and c. Continuing Parking Lease Agreement — An executed copy shall be delivered via e- mail to City and BBTCA , with the original to be delivered via overnight delivery to City and one copy delivered via overnight delivery to BBTCA. The Confirming Letters shall also serve as irrevocable and conclusive confirmation that the Escrow Documents are binding and of immediate force and effect, and may be dated by Escrow Agent on the same date as such Confirmation Letters are received by Escrow Agent. 4. Escrow Provisions. The Escrow Agent is acting as stakeholder only with respect to the Escrow Documents. If there is any valid dispute as to whether the Escrow Agent is obligated to release and record (as applicable), or continue to hold the Escrow Documents, the Escrow Agent shall not take any further action, but in such event, the Escrow Agent shall hold same until receipt by it of joint authorization in writing, directing the disposition of same executed by City and BBTCA; or in the absence of such authorization, the Escrow Agent shall hold the Escrow Documents until final determination of the rights of the applicable parties in the appropriate proceedings. If such written authorization is not given or proceedings for such determination are not begun within five (5) business days of written demand by Escrow Agent to BBTCA and City and diligently continued, the Escrow Agent may bring an interpleader or other court action as Escrow Agent deems appropriate. Any such court action must be brought in Palm Beach County, Florida. The Escrow Agent shall be reimbursed by BBTCA and City (who shall be jointly and severally responsible for such reimbursement) for all reasonable costs and expenses of such action or proceeding, including, without limitation, reasonable attorneys' fees. Upon completion of delivery of the recorded Escrow Documents to the appropriate parties, the Escrow Agent shall have no further liability unless such delivery constituted willful misconduct or gross 01888469-3 Escrow Agreement - Boynton Beach project: 51781462_1 Page 570 of 971 negligence. This Agreement will expire when the Escrow Documents have been recorded (as applicable) and delivered to the appropriate parties as set forth herein. 5. Liabilities of Escrow Agent. Escrow Agent shall be liable only to hold the Escrow Documents received herewith and to hold, record (as applicable) and deliver them to the appropriate parties in accordance with the provisions of this Agreement and any amendments hereto, it is being expressly understood that by acceptance hereof Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses, or expenses unless same shall be caused by its gross negligence or willful malfeasance. 6. Modification or Termination. This Agreement shall not be modified, revoked, released, or terminated, except upon the mutual consent of City, BBTCA and Escrow Agent given in writing and delivered to Escrow Agent subject to the provisions of Paragraph 7 hereof. 7. Resignation of Escrow Agent. Should, at any time, any attempt be made to modify this Agreement in a manner that would increase the duties and responsibilities of Escrow Agent, or to modify this Agreement in any manner that Escrow Agent shall deem undesirable, or at any other time, Escrow Agent may resign by notifying the parties hereto in writing, by certified mail to their respective addresses set forth below; and until the acceptance by a successor as escrow agent as shall be appointed by such parties and delivery of the Escrow Documents to the successor escrow agent, Escrow Agent's only remaining obligation shall be to perform its duties hereunder in accordance with the terms of this Agreement. 8. Public Records. The City is a municipality subject to Chapter 119, Florida Statutes. The Escrow Agent shall comply with Florida's Public Records Law. Specifically, the Escrow Agent shall: a. Keep and maintain public records required by the City to perform the Escrow Agent's responsibilities described in this Agreement. b. Upon request from the City's custodian of public records, provide the City with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119, Florida Statutes, or as otherwise provided by law. c. Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the contractor does not transfer the records to the City. d. Upon completion of the contract, transfer, at no cost, to the City all public records in possession of the Escrow Agent or keep and maintain public records required by the City to perform the service. If the Escrow Agent transfers all public records to the City upon completion of the Agreement, the Escrow Agent shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Escrow Agent keeps and maintains public records upon completion of the contract, the Escrow Agent shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the City, upon request from the City's custodian of public records, in a format that is compatible with the information technology systems of the City. IF THE ESCROW AGENT HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO 01888469-3 Escrow Agreement - Boynton Beach project: 51781462_1 Page 571 of 971 THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT (561)742-6060; 100 E. Ocean Avenue, Boynton Beach, Florida 33435; or cityclerkLa),hbilms. The Escrow Agent also understands that City may disclose any document in connection with this Agreement, so long as the document is not exempt or confidential and exempt from public records requirements. 9. Additional Provisions. This Agreement contains the entire understanding between and among City, BBTCA and Escrow Agent, and shall be binding upon and inure to the benefit of such parties, and subject to its terms, their respective successors, heirs, assigns, and legal representatives. This Agreement may be executed and delivered in any number of counterparts, each of which, when so executed and delivered, shall be deemed to be an original and all of which shall constitute one and the same instrument. This Agreement is being executed and delivered in and shall be governed by and construed and enforced in accordance with the laws of the State of Florida. In the event of litigation between any of the parties, the parties hereby irrevocably agree that venue shall be in a court of competent jurisdiction in Palm Beach County, Florida. Facsimile or electronic transmission copies of execution pages of this Agreement or any amendments of this Agreement or notices pursuant this Agreement shall constitute original execution documents for purposes of this Agreement or any such amendment or notice. BBTCA hereby acknowledges that Escrow Agent is also counsel for the City in the transactions contemplated in this Agreement and the Escrow Documents. In the event of a dispute between any of the parties, the parties consent to Escrow Agent continuing to represent the City (to the extent permitted under applicable law), notwithstanding that Escrow Agent shall continue to have the duties provided for in this Agreement. Nothing in this Agreement shall be deemed to affect the rights, privileges, and sovereign immunities of the City as set forth in Section 768.28, Florida Statutes and any liability to the City arising or concerning this Agreement shall be limited to the amount set forth in Section 768.28, Florida Statutes. 10. Notices. Any notices required or permitted to be given hereunder shall be given by overnight courier, certified or registered mail, return receipt requested, to the following addresses or to such other single address as either party hereto shall notify the other: For BBTCA: Jerneb Acquisition Corp. I c/o Time Equities, Inc. 55 Fifth Avenue — 15t1 Floor New York, New York 10003 Attention: Robert Kantor and Robert Singer Email: rkantorLa)timeeduities.com rsin ger a>,timeeduitiesxom With Counterpart to: Mark J. Lynn, Esq. Greenspoon Marder LLP 200 E. Broward Boulevard Suite 1800 Fort Lauderdale, FL 33301 e-mail: markt nna>gmlaw.com 01888469-3 Escrow Agreement - Boynton Beach project: 51781462_1 Page 572 of 971 For the City: Dan Duggar, City Manager 100 E. Ocean Avenue Boynton Beach, FL 33435 Email: DuggarD@bbfl.us With Counterparts to: Michael D. Cirullo, Jr. 3099 East Commercial Boulevard, Suite 200 Fort Lauderdale, FL 33308 Email: MCirullo a>,OorenCherof.com Kathryn B. Rossmell 360 S. Rosemary Avenue, Suite 1100 West Palm Beach, FL 33410 Email: krossmell@llw-law.com Escrow Agent: Michael D. Cirullo, Jr. 3099 East Commercial Boulevard, Suite 200 Fort Lauderdale, FL 33308 Email: MCirulloa>,OorenCherof.com [THIS SPACE INTENTIONALLY LEFT BLANK] 01888469-3 Escrow Agreement - Boynton Beach project: 51781462_1 Page 573 of 971 IN WITNESS WHEREOF, the undersigned have signed and sealed this Agreement as of the date set forth above. Signed, sealed and delivered In the presence of- Witnesses: £ Witnesses: (Signature) Print Name (Signature) Print Name Witnesses: (Signature) Print Name (Signature) Print Name BOYNTON BEACH TOWN CENTER APARTMENTS, LLC, a Florida limited liability company By: Name: Title: CITY OF BOYNTON BEACH, FLORIDA, a Florida municipal corporation By::_ Name: Title: 01888469-3 Escrow Agreement - Boynton Beach project: 51781462_1 Page 574 of 971 Witnesses: (Signature) Print Name (Signature) Print Name GREENSPOON MARDER LLP, a Florida limited liability partnership By: Name: Title: 01888469-3 Escrow Agreement - Boynton Beach project: 51781462_1 Page 575 of 971 E:� Public Hearing 2/21/2023 11 City of Boynton Beach D Agenda Item Request Form Commission Meeting Date: 2/21/2023 Requested Action by Commission: Proposed Ordinance No. 23-004- Second Reading - Approving and authorizing the proper City Officials to enter into a Development Agreement with Boynton Beach Town Center Apartments, LLC., an affiliate of Time Equities, Inc., for the development of certain real property within the area known as Town Square. Explanation of Request: Sections 163.3220-163.3243, Florida Statutes, authorize municipalities to enter into development agreements with any person having a legal or equitable interest in real property located within its jurisdiction and sets out certain standards for those development agreements. This request is for approval of a Development Agreement with Boynton Beach Town Center Apartments, LLC, (BBTCA) for two phases of development within the area generally referred to as "Town Square." Phase I of the Town Square Project was successfully completed, is owned by the City, and contains City Hall, the Boynton Beach City Library, and other civic uses. The Development Agreement would govern development in Phase 2 and Phase 3. Phase 2, the "South Parcel," is located on the southern end of Town Square, bounded to the north by SE 1st Avenue, to the south by SE 2nd Avenue, to the east by SE 1st Street, and to the west by Seacrest Boulevard. In accordance with the master plan attached as an exhibit, the proposed Phase 2 development would include one (1) eight (8) story building, which is anticipated to consist of approximately 457 residential units, approximately 7,165 square feet of retail/restaurant space and a parking garage containing approximately 983 parking spaces. Phase 3, the "North Parcel," is bounded to the north by Boynton Beach Boulevard, to the south by NE 1st Avenue, to the east by NE 1st Street, and to the west by Seacrest Boulevard. The proposed Phase 3 development would contain one (1) eight (8) story residential building, consisting of approximately 441 residential units, approximately 16,339 square feet of retail/restaurant space and a parking garage containing approximately 1,026 parking spaces. The proposed Development Agreement also contemplates that the City and BBTCA would enter into temporary and continuing parking lease agreements to provide parking for City and public uses. BBTCA would provide the City with $1,000,000 in art fees and $180,000 for use in procuring public restroom facilities for Town Square. As with all development agreements, the proposed Development Agreement would "freeze" the City's Land Development Regulations ("LDRs") and Comprehensive Plan in place on the Effective Date, setting the standards for how development order applications for Phases 2 and 3 will be considered by the City. However, the Development Agreement does not actually approve any development orders. Site plans and other development orders would still need to be approved by the City. The Development Agreement also allows BBTCA to reserve water and wastewater capacity for a period of 6 years at no cost. The proposed Development Agreement states that BBTCA will have 5.5 years from the Effective Date to start construction in either Phase 2 or Phase 3, and allows for a limited number of extensions consistent with state Page 576 of 971 statutes and the LDRs. If BBTCA failed to meet the deadlines set forth in the proposed Development Agreement, the City could seek termination of the agreement. The Development Agreement, if approved, would not become immediately effective. The property that is proposed for development is currently owned in part by the City and in part by J KM BTS Central LLC, J KM BTS North LLC, and J KM BTS South LLC (the "J KM Entities.") The City is currently in litigation with J KM Entities, and has signed a settlement agreement contingent upon, among other things, the City entering into a development agreement with a purchaser of the land owned by J KM Entities. BBTCA is under contract to purchase the property held by the JKM Entities and, separately, to exchange land with the City in order to acquire the Phase 2 and Phase 3 properties. The Development Agreement would not become effective until BBTCA became the owner of all relevant properties, all parking agreements are executed, and the settlement agreement is otherwise able to go into effect. How will this affect city programs or services? The development agreement would impact the application of future changes to the City's LDRs and Comprehensive Plan to the project. The temporary and long term parking agreements contemplated in the proposed Development Agreement will provide short and long term parking for public and City uses in the Town Square area. Fiscal Impact: This agreement will result in revenue generation for the City in the following areas below based on City fees: Art Fee Permit Fee Workforce Housing Fee Park Impact Fee In addition, settlement funds would be due the City from J KM contingent on the finalization of this agreement. Alternatives: Do not approve the proposed development agreement. Provide further direction to staff and legal departments. Strategic Plan: Strategic Plan Application: Climate Action Application: Is this a grant? Grant Amount: Attachments: Page 577 of 971 Type Ag ir'EsE) rTIE) II'l t Description Ordinall'IC2, appirtmAing IDE�IVC.sll(�)lpirTIEsll'ItAgir'EsEsirTIEsll'It Wth I&B TCA DE)V(.)�opirTIENI'lt Agir'E)E)irTIE)l['It with BoyintoinBE�,ach Tbwn CENI'AE)r ApartirTIENI'AS I I C Page 578 of 971 1 2 ORDINANCE NO. 23-004 3 4 AN ORDINANCE OF THE CITY COMMISSION FOR THE CITY OF BOYNTON 5 BEACH, FLORIDA, APPROVING AND AUTHORIZING THE PROPER CITY 6 OFFICIALS TO ENTER INTO DEVELOPMENT AGREEMENT WITH BOYNTON 7 BEACH TOWN CENTER* APARTMENTS, LLC, AN AFFILIATE OF TIME 8 EQUITIES, INC.; AND PROVIDING FOR AN EFFECTIVE DATE. 9 WHEREAS, the City and Boynton Beach Town Center Apartments, LLC, whose principal 10 is Time Equities, Inc., have negotiated a Development Agreement; and, 11 WHEREAS, the notice and hearing requirements for review and approval of a 12 Development Agreement set forth by law have been satisfied; and, 13 14 WHEREAS, pursuant to Section 163.3225, the City Commission has conducted two 15 public hearings on the proposed Development Agreement, considered the Development 16 Agreement, and the comments from the public. 17 WHEREAS, the City Commission has determined that it is in the best interest of the 18 citizens and residents of the City of Boynton Beach to adopt this ordinance to permit the 19 proper City Officials to enter into a Development Agreement with Boynton Beach Town Center 20 Apartments, LLC., an affiliate of Time Equities, Inc. 21 NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION FOR THE CITY OF 22 BOYNTON BEACH, FLORIDA, AS FOLLOWS: 23 24 Section 1: The foregoing whereas clauses are true and correct and are now ratified and 25 confirmed by the City Commission. 26 Section 2: The City Commission of the City of Boynton Beach approves the Development 27 Agreement, attached hereto as Exhibit "A" and incorporated herein. 28 29 Section 3: The City Commission authorizes the Mayor to execute the Development 30 Agreement, and for the proper City officials to take all actions necessary to effectuate the 31 Development Agreement and the intent of this Resolution, including without limitation 32 the recordation of the Development Agreement at the expense of the applicant. 33 34 Section 4: This Ordinance shall become effective immediately upon second reading. 35 FIRST READING this 15th day of February, 2023. 36 SECOND, FINAL READING AND PASSAGE this 21 st day of February, 2023. *Scriveners error corrected from advertised title the name Square changed to Center. Page 579 of 971 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 CITY OF BOYNTON BEACH, FLORIDA Mayor — Ty Penserga Vice Mayor —Angela Cruz Commissioner —Woodrow L. Hay Commissioner — Thomas Turkin Commissioner —Aimee Kelley ATTEST: VOTE Maylee De Jesus, MPA, MMC Ty Penserga City Clerk Mayor (Corporate Seal) YES NO APPROVED AS TO FORM: Michael D. Cirullo, Jr. City Attorney 2 Page 580 of 971 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ("Agreement") is entered into this day of 2023 by and between the CITY OF BOYNTON BEACH, FLORIDA ("City"), AND BOYNTON BEACH TOWN CENTER APARTMENTS, LLC, a Florida limited liability company ("Developer"), as follows: WITNESSETH: WHEREAS, Developer is an affiliate of Time Equities, Inc., a diversified real estate investment, development, asset and property management company that has been in business for more than 55 years, and owns a portfolio of approximately 38.7 million square feet, including residential, industrial, office and retail properties, along with approximately 1.5 million square feet in pending acquisitions, and 2.0 million square feet of properties in various stages of pre - development and development; and WHEREAS, Developer is under contract (the "JKM Contract") with JKM BTS Capital, LLC and its affiliates (together, "JKM") to acquire that certain real property located in Boynton Beach, Florida, legally described in Exhibit A (collectively, the "JKM Parcels"); and WHEREAS, Developer has also entered into that certain contract with City in the form attached as Exhibit B (the "Land Swap Agreement"), whereby City is to convey to Developer that certain parcel of real property from City which is legally described in Exhibit B-1 (the "Developer Swap Parcel"), and in exchange Developer is to convey to City that certain parcel of real property legally described in Exhibit B-2 on which City intends to develop a hotel or use of equivalent intensity (the "Central Parcel"); and WHEREAS, the closing contemplated by the Land Swap Agreement shall occur immediately before this Agreement becomes effective; and WHEREAS, the accomplishment of the closing on the JKM Parcels and the closing on the Land Swap Agreement are hereinafter referred to together as the "Closing," whereupon Developer would own the JKM Parcels and the Developer Swap Parcel, and City would own the Central Parcel; and WHEREAS, the JKM Parcels and the Developer Swap Parcel shall be referred to herein as the "Property;" 01889367-1 1:531051471 Page 581 of 971 WHEREAS, this Agreement, along with the other Escrow Documents (as defined below) are to be executed by Developer and City and placed into escrow pursuant to an escrow agreement agreed to and executed by both parties (the "Escrow Agreement," a copy of which is attached hereto as Exhibit C), such Escrow Documents to be released immediately following the Closing and otherwise in accordance with the Escrow Agreement, and such Escrow Documents to be of no force or effect unless and until the Closing occurs (and the other conditions of the Escrow Agreement are met); and WHEREAS, subject to the terms and conditions herein, Developer will apply for and work with City to obtain the Approvals (as defined below) as required pursuant to the City of Boynton Beach Code of Ordinances ("Code") and LDRs (as defined below); and WHEREAS, the Developer intends to develop the Property in conformance therewith consistent with the Deadlines (defined below) provided herein; and WHEREAS, City has approved with conditions the amended master plan attached hereto as Exhibit D (the "Master Plan"), which depicts the Property as being comprised of that parcel containing approximately 4.37 acres +/- identified as the "North Residential" (the "North Parcel"), which includes the Developer Swap Parcel; and that parcel containing approximately 3.94 acres identified as "South Residential" (the "South Parcel") (the term "Parcel" hereinafter shall mean either the South Parcel or the North Parcel as applicable based upon context); and WHEREAS, the Master Plan also depicts the Central Parcel and parking to support the Central Parcel, which shall be a stand-alone, separate parcel that may be developed by the City as noted on the Master Plan; WHEREAS, pursuant to the Master Plan and the agreed upon preliminary design package attached as Exhibit E (the "Schematic Design Package") (the overall project as depicted in the Master Plan (subject to approval of the implementing site plans) and the Schematic Design Package is defined as the "Project,") Developer seeks to develop the Property as follows: On the North Parcel: one (1) eight (8) story buildings, consisting of approximately 441 residential units, approximately 16,339 square feet of retail/restaurant space and a parking garage containing approximately 1,026 parking spaces (the "North Garage"), and On the South Parcel: one (1) eight (8) story buildings, which is anticipated to consist of approximately 457 residential units, approximately 7,165 square feet of retail/restaurant space and a parking garage containing approximately 983 parking spaces (the "South Garage"); and WHEREAS, JKM and City entered into a separate development agreement dated March 19, 2018 (the "Prior Agreement"), pursuant to which JKM had submitted a master plan and site plan for the development of a mixed-use community, which master plan provided for 100 public parking spaces above that which was required by the City's land development regulations along with public bathrooms to support the now -completed public park; and 01889367-1 -2- Page 582 of 971 WHEREAS, the development contemplated in the Prior Agreement has not been constructed and JKM and City have expressed a mutual desire to terminate the Prior Agreement in connection with the Settlement Agreement (defined below) and, pursuant to the Settlement Agreement, the Prior Agreement will be terminated and of no further force or effect; and WHEREAS, City and JKM have been involved in litigation over certain provisions of the Prior Agreement, under Case No. 502020CA012780, City ofBoynton Beach v. JKMBTS Capital, LLC (the "Case"); and WHEREAS , City and JKM have agreed to settle the Case, including, without limitation, the termination and mutual release of all agreements that exist between JKM and City, pursuant to a settlement agreement entered into by City and JKM effective on or about the date of the Closing (the "Settlement Agreement"); and WHEREAS, as of the Effective Date (defined below), City wishes to enter into temporary parking easement agreements (`Temporary Parking Easement Agreements") with Developer for surface parking on the Property for City uses, as more particularly set forth in such Temporary Parking Easement Agreements attached hereto as Composite Exhibit F and described more fully below; and WHEREAS, upon issuance of a final certificate of occupancy for the Parking Garages (as defined below), City and Developer desire to enter into long-term parking lease agreements (collectively the "Continuing Parking Lease Agreements") whereby City shall have the right to utilize 237 spaces in the North Garage and 236 spaces in the South Garage, as more particularly set forth in the Continuing Parking Lease Agreements attached hereto as Composite Exhibit G; and WHEREAS, City further agrees to terminate and release, or cause to be terminated and released, certain documents specifically identified below which encumber the Property and which are recorded in the Public Records of Palm Beach County; and WHEREAS, City agrees to release, or cause to be released, all utility easements affecting the Property which shall be replaced as required by this Agreement; and WHEREAS, the utilities director for the City (the "Utilities Director") has analyzed the existing Utility Capacity (as defined below) and has approved the Developer's request to reserve utility system capacity for water and wastewater service for the Project for a period of six (6) years from the Effective Date at no cost to Developer; and WHEREAS, the City finds that the proposed Project is consistent with the City of Boynton Beach Comprehensive Plan in effect on the Effective Date (as defined below) of this Agreement ("Comprehensive Plan") and Land Development Regulations in effect on the Effective Date ("LDRs"); WHEREAS, master plans approved pursuant to Ordinance 23-003 expire 24 months after approval, or upon the expiration of the last site plan approved under a master plan, whichever is 01889367-1 -3- Page 583 of 971 later; WHEREAS, site plans approved pursuant to Ordinance 23-003 expire after 72 months after approval unless a vertical building permit is secured; and WHEREAS, applications for master plans and site plans submitted by Developer for the Project shall be processed pursuant to the timelines set forth above in Ordinance 23-003; NOW, THEREFORE, in consideration of the premises, the mutual and reciprocal obligations undertaken herein and the mutual covenants contained herein, the parties to this Agreement agree as follows: Section 1. Recitals. The above Whereas clauses are true and correct and made a part hereof as if fully set forth herein. Section 2. Permits and Approvals. a) The Approvals necessary to effectuate the Project ("Approvals;" individually an "Approval") include, without limitation: 01889367-1 i) Master Plan Approval; ii) Site plan Approval ("Site Plan Approval") for the North Parcel; iii) Site Plan Approval for the South Parcel; iv) 2 Sign Program Approvals; v) Community Design Appeal Approvals for each phase depicted on the master plan and as may be required during site plan review; vi) Participation in the City's payment -in -lieu Workforce Housing Program; vii) Right-of-way dedications and abandonments (Items (4) through (6) below being governed by Section 6(c) below): (1) Five (5) foot land dedication along SE 1 st Street to provide a total of 25 feet of right-of-way measured from the centerline between SE I" Ave and SE 2nd Ave.; (2) 40 foot land dedication on the south side of Parcel 2 aligned with and centered on the existing NE 1st Avenue right-of-way, Tract R1; (3) Eight (8) foot land dedication on the north side of Parcel 7 between Seacrest Boulevard and the west end of the existing SE 1st Ave right-of-way to provide a total of 20 feet of right-of-way measured from the centerline of existing SE 1 st Ave; N Page 584 of 971 (4) Dedications of easements as may be required to cause power lines to be moved underground pursuant to Section 50) below; (5) Abandonment of a 24 foot Public Ingress/Egress Easement (Plat Book 127, Page l; all recording information in this Agreement refers to the Public Records of Palm Beach County, Florida); (6) Abandonment of the following City Utility Easements a. 10 foot City Utility Easement recorded in Plat Book 127, Pagel; b. Easement in favor of City recorded in ORB 30690, Page 556 (7) Abandonment of: a. 10 foot FPL Easement (ORB 2403, Page 1139); b. FPL Easement recorded at ORB 31491, Page 1520. c. FPL Easement recorded at ORB 31562/1724. (8) Dedication of Track R3 per Plat Book127, Page l; (9) Pedestrian easements as may be required to comply with the pedestrian zone requirements along perimeters of Phases 2 and 3. As used herein, the term "Phase" refers to phases as depicted on the Master Plan' viii) Replat of the Master Plan Area ix) Building Permits; x) Height Exceptions (See Sec. 2(g)(iii) below); and xi) Any other approvals which are reasonably necessary to effectuate the Approvals or the Project (or both). The failure of this Agreement to address a particular permit, condition, term, or restriction shall not relieve Developer of the necessity of complying with the law governing said permitting requirements, conditions, term, or restrictions. b) The parties may, each in their sole and absolute discretion, mutually agree in writing to conditions for any Approval hereunder that supersede the terms of this Agreement, without requiring further amendment of this Agreement. C) Developer will seek final authorizations from the City for all Approvals. For purposes of this Agreement, each Approval shall be considered a "Final Approval" as of the date that it has been duly approved by the City and either of the following conditions are met: (x) the Developer takes action pursuant to the Approval (such as commencing construction or filing 01889367-1 -5- Page 585 of 971 applications for building permits), or (y) the period to bring a legal challenge against such Approval has run. In the event of a legal challenge (including, without limitation, the filing of an appeal) to an Approval, any Deadlines in this Agreement calculated from the date of such Approval shall be tolled until the earliest of the following occurs, at which point the subject Approval will be considered a Final Approval: i) The challenge to the Approval is concluded and Developer receives an Approval not subject to further challenge, in which case the Approval shall be a Final Approval as of the date of such conclusion of the challenge; or ii) Developer elects in its sole and absolute discretion to proceed with development pursuant to the challenged Approval during the pendency of the challenge, which shall be deemed a Final Approval as of either the date of City's receipt of Developer's written election to proceed, or Developer's actual commencement of construction (site work or vertical, as applicable) pursuant to the challenged approval, whichever is earlier. d) The City represents that it has the ability to provide water and wastewater service in an amount sufficient to serve the Project in the normal course of usage (such amount being hereinafter referred to as the "Utility Capacity"). A determination letter from the City Utilities Director confirming the same is attached hereto as Exhibit H. The Utility Capacity for the Project is hereby reserved by the City, without requiring further notice to or from Developer, for a period of six (6) years from the Effective Date, per Chapter 2, Article II, Section 2 of the LDRs. Upon issuance of a building permit for vertical construction within the North Parcel or the South Parcel from time to time, the portion of the Utility Capacity designated to such Parcel shall automatically vest so that such portion of the Utility Capacity shall not be used for any other project or purpose. e) The City further represents that the infrastructure depicted on the as -built drawings attached hereto as Exhibit I ("Existing Infrastructure"), which Exhibit is hereby incorporated herein, exists and is available to serve the Project. Notwithstanding the foregoing, as provided in the conditions of approval of the Master Plan, if the Existing Infrastructure depicted on Exhibit I is reasonably determined to be insufficient to adequately serve the Project, Developer shall be responsible for required modifications to the Existing Infrastructure to provide such service. For avoidance of doubt as to Developer's obligations concerning upgrades to Existing Infrastructure, required upgrades to lift stations shall be limited to pumps and controls, and upgrades to water mains shall be limited to the installation of no larger than 12 inch PVC pipes along Boynton Beach Boulevard from Seacrest Avenue to NE I" Street and/or NE I" Avenue from the stub out on the west end near Seacrest Avenue to NE I" Street. Utility connections shall be restricted to water and sanitary sewer pipelines that were installed in connection with the City Hall Town Square redevelopment project. All sanitary sewer for this project shall be directed to the lift station constructed as part of the City Hall Town Square redevelopment project. f) Developer shall meet concurrency requirements of the LDRs. In meeting such concurrency requirements, City and Developer acknowledge as follows: (i) the Project lies within a TCEA (Traffic Concurrency Exemption Area) pursuant to Palm Beach County code section Article 12, Chapter K of Palm Beach County Unified Land Development Code; (ii) Any 01889367-1 -6- Page 586 of 971 concurrency requirements for water and sewer utilities will be met in accordance with to Section 2(e) above and through payment of required City capital facilities charges (as provided in the City Code Chapter 26 — Water, Sewers, and City Utilities); (iii) Per the capacity letter from the School District of Palm Beach County to Developer, there are no further City school concurrency requirements for the Project other than school impact fees charged by School District of Palm Beach County; and (iv) Developer shall satisfy any City concurrency requirements for police, fire, park, library, and other City and Palm Beach County impact fees in connection with permit issuance. The parties understand and agree this Agreement has no impact on Developer's responsibilities under any Palm Beach County, School District of Palm Beach County, state, or federal permits or requirements. g) All uses permitted by the LDRs shall be considered permitted uses for the Project; however, changes in use per the Master Site Plan require approval pursuant to the LDRs. h) In the event the City issues an approval, authorization, or consent that contains one or more conditions that are not acceptable to Developer in its reasonable discretion, Developer shall have 30 days to notify the City that such condition(s) is(are) unacceptable, and upon receipt of such notice, such approval, authorization or consent shall not be considered an Approval. i) The applications for Approvals shall conform to the Master Plan in the following respects (together, the "Material Components"): 01889367-1 i) Between the two Parcels, the completed Project shall have a total of up to 898 dwelling units, with a density of no more than 58 dwelling units per acre if the developer elects to participate in the City's Workforce Housing Program (the "WFH Program"), otherwise the density shall be no more than 50 dwelling units per acre. Density is calculated using the entire area depicted within the Master Plan. ii) Each Parcel within the Project shall have no more than 3.5 FAR pursuant to the City's Workforce Housing Program (the "WFH Program") if Developer elects to participate in the WFH Program; otherwise, each parcel within the Project shall have no more than 3.0 FAR. iii) No building within the South Parcel shall exceed 87 feet in habitable height, comprised of 75 feet of habitable height as of right, plus a workforce housing bonus of up to 12 feet pursuant to the WFH Program if Developer elects to participate in the WFH Program. iv) No building within the North Parcel shall exceed 99 feet in habitable height, comprised of 75 feet of habitable height as of right, plus a workforce housing bonus of up to 24 feet pursuant to the WFH Program if Developer elects to participate in the WFH Program. v) Additional height shall be permitted on both Parking Garages, the North Parcel, and the South Parcel to allow for non -habitable parapet/architectural -7- Page 587 of 971 enhancements and visual screening of the roof, consistent with the height exception process in the LDRs. vi) A total of 473 parking spaces within the Parking Garages (comprised of 237 spaces in the North Garage and 236 spaces in the South Garage) for use by the City. Upon completion, the Project shall provide 100 number of spaces in excess of that required by the LDRs across the area depicted in the Master Plan (44 of which shall be in the Parking Garages and 66 of which shall be surface parking) which shall be dedicated to use by the City and the public. j) The Material Components are determined to be necessary for the public health, safety, and welfare of the citizens of the City of Boynton Beach. The Developer agrees the completed Project will contain the Material Components and that the inclusion of the Material Components in the Project is an essential part of this transaction and consideration for this Agreement. k) Developer understands that this Agreement in no way obligates the City to approve applications for Approvals that do not meet all applicable requirements of the Comprehensive Plan and LDRs, and that the City retains its full discretionary and decision-making authority to review and approve, deny, or approve with conditions any and all applications. For avoidance of doubt, Site Plan Approval remains subject to compliance with the terms of this Agreement, the Master Plan, and the LDRs including Chapter 2, Article II, Section 2.F.2.b. of the LDRs. 1) City and Developer agree that this Agreement need not be amended to reflect changes in the Master Plan or Schematic Design Package which are submitted, approved, and modified from time to time; except that material changes to the above-described Material Components shall require amendment to this Agreement. For purposes of this Agreement, a modification shall be considered a "material change" if it qualifies as a "major" modification pursuant to the applicable section of LDRs. For avoidance of doubt, a major modification to a site plan or to the Master Plan would require amendment to this Agreement. Upon receipt of Final Approvals, such Final Approvals and the Project shall be subject to the LDRs and City Code. m) It is specifically understood that under the LDRs, the Master Plan becomes vested upon the receipt of a building permit for vertical construction within either the North Parcel or the South Parcel, and that following Site Plan Approval the applicable site plan shall become vested upon the receipt of a building permit for vertical construction within the area depicted in that site plan. The term "vest" or "vested" shall mean that the applicable plan (site and/or master) for the Project is irrevocably approved, and not subject to modification, amendment, supplement, termination or revocation by City, or any governmental authority under the City's direction or contract (except where a modification, amendment, or supplement is expressly requested or consented to in writing by Developer or Developer is not in compliance with the terms of the applicable Approval) provided the Project is in compliance with the material terms of this Agreement and all applicable laws, ordinances, rules and regulations. This section shall not be read to limit the City's ability to seek approvals for, dispose of, or develop land owned by the City. 01889367-1 p -O- Page 588 of 971 Section 3. Additional Agreements. City and Developer acknowledge and agree that as of the date of the signatures below, the following documents have been executed by both Parties and, along with this Agreement, shall be placed in escrow with Greenspoon Marder LLP in conformance with the Escrow Agreement: a) Temporary Parking Easement Agreements executed by City and Developer; and b) Continuing Parking Lease Agreements. The documents above, together with this Agreement shall be referred to as the "Escrow Documents." The City and Developer acknowledge and agree that the Escrow Documents shall be of no force or effect unless and until the Closing has occurred and all of the conditions of the Escrow Agreement have otherwise been met. For clarification, the Land Swap Agreement is not part of the Escrow Documents. The parties agree that the Escrow Documents, the Land Swap Agreement, and the terms and conditions contained in each, are a material part of this transaction and consideration for this Agreement. Section 4. City's Obligations. a) Upon Developer's submission of any application for any of the Approvals, City shall process same (including, without limitation issuance of building permits) on an expedited basis, and shall make reasonable efforts to cause each of the Approvals to be acted upon within 120 days of Developer's submission of application for same. b) So long as the City owns the Developer Swap Parcel, City shall, upon request by Developer, execute any and all documentation consenting as the property owner to any application for the Approvals, so long as same are consistent with this Agreement and applicable laws. C) City hereby confirms that pursuant to the Settlement Agreement, subject to compliance with the terms and conditions therein, the Prior Agreement shall become null and void, of no further force or effect and, accordingly, not binding on Developer. d) Following issuance of all Approvals, City shall, on an expedited basis and with reasonable efforts process all necessary permits, including, without limitation, site clearing permits (as applicable) and building permits. e) City shall reasonably cooperate with Developer in Developer's efforts to cause power lines to be buried and to install on -street parking at Boynton Beach Boulevard pursuant to Section 50) below. f) The City shall apply the Comprehensive Plan provisions and the LDRs to the Approvals for the duration of the Development Agreement except (i) as otherwise expressly provided herein; (ii) as later consented to by both the City and by the Developer in writing, each of which may consent or decline to consent in their sole and absolute discretion, (it being understood that without the consent of both Developer and the City such changes may not be applied pursuant to this provision); or (iii) as applied by the City pursuant to Section 163.3233, 01889367-1 W Page 589 of 971 Florida Statutes, as it may be amended from time to time. Any provision that becomes applicable to the Approvals though the means provided for in this paragraph shall be considered part of the Comprehensive Plan or LDRs, as applicable, for purposes of this Agreement. g) The City shall review land subject to this Agreement at least once every 12 months to determine if there has been demonstrated good faith compliance with the terms of this Agreement. Developer has the right to present to the City and submit a written report to the City, both of which shall be considered in the City's review for compliance. If the City finds, on the basis of substantial competent evidence, that there has been a failure to comply with the terms of this Agreement, this Agreement may be revoked or modified by the City at a public hearing in conformance with Florida law. h) Within 14 days of the Effective Date, the City shall record this Agreement with the clerk of the circuit court of Palm Beach County. 01889367-1 Section 5. Developer's Obligations. a) City acknowledges that Developer has reasonably and in good faith, coordinated the Project design with City and obtained Approval (with conditions) of the Master Plan. Developer will continue to reasonably and in good faith, cooperate with City in the implementation of the Master Plan and in obtaining further Approvals. b) Developer agrees to make a contribution to the City's Public Art Fund pursuant to the City's Art In Public Places program pursuant to Ordinance 23-003, for the total Project (inclusive of both buildings) in an amount not to exceed $1,000,000. For avoidance of doubt, Developer's contribution shall be in addition to any contribution made pursuant to the City's Art in Public Places program prior to the Effective Date. c) Developer agrees to make a non-refundable contribution of $180,000 to the City to be used for the provision of two public restroom facilities ($90,000 each, for the total of $180,000), which may be in the form of portable restroom facilities so long as such portable facilities will be primarily used on the property owned by the City (such property being identified as "Phase 1 government/civic" on the Master Plan). The restroom facilities shall not be placed on the Property owned by the Developer. Developer shall make payment to the City within 45 days of the receipt of the Certificate of Occupancy or equivalent for each of the restroom facilities, or the invoice(s) for the portable restroom facilities and related costs, as applicable. The City shall use reasonable efforts to locate and maintain any portable restroom facility in a location so as not to unreasonably interfere with the use and enjoyment of the Project. d) Developer agrees to meet the following deadlines (collectively, the "Deadlines;" each individually, a "Deadline"): i) Developer shall submit an application seeking an Approval for a vertical building permit for either the North Parcel or South Parcel within 5 years of the Effective Date. -10- Page 590 of 971 01889367-1 ii) Developer shall commence work on either the North Parcel or the South Parcel pursuant to such vertical building permit within 5.5 years of the Effective Date ("Construction Commencement Date"), subject to any extensions available as provided in Section 5(e). e) Developer may seek or provide notice of extensions for Approvals pursuant to Art. II, Sections 2.17.6. and 5.B.6. of the LDRs (as applicable); as provided for by Section 252.363, Florida Statutes (as it may be amended from time to time); and as may be available pursuant to the Florida Building Code in effect at the time of building permit and/or extension application. However, Developer agrees it shall not seek or provide notice of extensions that would extend the Construction Commencement Date beyond 7.5 years from the Effective Date without first obtaining consent of the City. With respect to extensions that would extend the Construction Commencement Date beyond 7.5 years from the Effective Date, Developer shall submit evidence of reasonable efforts to commence construction as part of its request for the City's consent to seek or notice an extension. f) Developer agrees to timely submit and diligently pursue applications for all Approvals in good faith and with reasonable efforts so as to assist the City in meeting the 120 -day timeframe provided in Section 4(a) above. g) Developer agrees to provide 473 parking spaces in the Parking Garages for public use as follows: Upon issuance of a final certificate of occupancy for each of the Parking Garages, Developer agrees to provide such parking spaces and otherwise perform its obligations as required under the Continuing Parking Lease Agreements, and to thereafter operate and manage such Parking Garages in conformance with its obligations thereunder and otherwise in a first-class manner. h) Developer agrees to provide parking as provided in the Temporary Parking Easement Agreements. i) Developer shall develop the Project consistent with the Material Components defined herein. j) Developer shall use reasonable efforts (including paying the associated costs) to cooperate with the utility providers or other responsible parties to cause power lines to be buried and to install on -street parking at Boynton Beach, with the City's cooperation as described in Section 4(e). k) Developer shall pay all fees as maybe required by the City pursuant to the fee schedule in effect at the date of permit issuance. 1) Commencing six years after the Effective Date, on an annual basis thereafter, Developer shall provide a written report to the City concerning the status of the Project. City shall deliver Developer written notice that such written report is required not less than 30 days in advance of the date due. -11- Page 591 of 971 Section 6. Termination of Existing Agreements and Other Documents of Record. a) The following agreements are hereby terminated, of no further force or effect, and have no application to the Project or Developer, and City agrees to execute such further documentation as is necessary to cause such instruments to be terminated in the Public Records of Palm Beach County, Florida: (i) Those certain Parking License Agreements between City and JKM both dated March 19, 2018, for BTS South and BTS North respectively. (ii) Temporary Parking Easement Agreement recorded December 2, 2020 in Official Records Book 31962, Page 1434 of the Public Records of Palm Beach County, Florida. (iii) Temporary Parking Easement Agreement recorded December 2, 2020 in Official Records Book 31962, Page 1449 of the Public Records of Palm Beach County, Florida. b) City agrees to cooperate with Developer to cause Palm Beach County to execute and record in the Public Records of Palm Beach County, Florida, a termination of the following instruments in a timely manner so as not to interfere with the Approvals and, if applicable, development of the Project: (i) Declaration of Restrictive Covenant Regarding Reduced Road Impact Fee for Age Restricted Communities recorded July 28, 2021 in Official Records Book 32728, Page 1615 of the Public Records of Palm Beach County, Florida. (ii) Declaration of Restrictive Covenant Regarding School Impact Fee recorded in Official Records Book 32728, Page 1622 of the Public Records of Palm Beach County, Florida. c) City agrees to cooperate with Developer to cause all utility easements affecting the Property to be released and terminated in a timely manner so as not to interfere with the other Approvals and, if applicable, development of the Project, including, without limitation, those easements to be abandoned pursuant to Section 2(a)(vii) above. Section 7. Effective Date. This Agreement is effective upon the date all of the following have been completed and, where applicable, released from escrow pursuant to the Escrow Agreement ("Effective Date"): 01889367-1 a) This Agreement is executed by all Parties; b) The Settlement Agreement, attached hereto as Exhibit J, between the City and JKM becomes effective per its terms; -12- Page 592 of 971 c) Developer closes on the JKM Parcels; d) City and Developer close pursuant to the Land Swap Agreement; e) Execution of the Continuing Parking Lease Agreements by all Parties; and f) Execution of the Temporary Parking Easement Agreements by all Parties. Notwithstanding anything herein to the contrary, this Agreement shall be contingent upon, and shall not be effective until Final Approval is issued for the Master Plan in substantially the form attached hereto, provided, however, that if such Final Approval is not obtained by December 31, 2023, then Developer, in its sole and absolute discretion, may terminate this Agreement by written notice to City. Section 8. Termination. Unless earlier terminated pursuant to the terms of this Agreement, this Agreement shall automatically terminate upon the earlier of: (x) 30 years from the Effective Date; (y) the completion of the Project as evidenced by the issuance of the last Certificate of Occupancy or equivalent certification for the Project, or (z) 7.5 years after the Effective Date upon vote of the City Commission confirming the termination at the City's sole and absolute discretion. However, notwithstanding anything in this Section 8 or in this Agreement to the contrary, if during such seven and a half (7.5) year period, Developer is not in default under this Agreement, has received a building permit for vertical construction of any portion of the Project and actually commences construction as provided in such building permit for vertical construction, then the termination date of this Agreement shall be automatically extend for a period of 10 years from the date of vertical building permit issuance. Notwithstanding anything to the contrary herein, once Developer has commenced construction pursuant to this Agreement, if City determines that Developer has failed to diligently prosecute completion of construction, the City may provide written notice to Developer of its intent to terminate this Agreement. For purposes of this Section 8, the term "failed to diligently prosecute completion of construction" shall mean that no work has been performed on site and passed an inspection for a period of one or more years. Upon receipt of such notice, Developer shall have 180 days to cure by resuming construction and performing work on site reasonably intended to achieve completion of the Project. If City reasonably determines that Developer has resumed construction and is performing work on site reasonably intended to achieve completion of the Project, City shall withdraw such notice in writing, and Developer shall be deemed to be in compliance with this Section. If City reasonably believes that Developer has not met the foregoing requirements and elects not to withdraw the notice prior to expiration of the 180 -day period, the City shall hold a public meeting, during which meeting Developer will have the opportunity to provide evidence of such cure or that such notice was wrongly issued. If the City determines that (i) Developer failed to prosecute construction prior to issuance of notice, and (ii) Developer has failed to establish that Developer has sufficiently cured by diligently prosecuting construction reasonably intended to achieve completion, the City may terminate this Agreement so long as such determination is not arbitrary and capricious. For avoidance of doubt, in the event the Developer fails to actually and timely commence construction pursuant to a vertical building permit as required by Section 5(d) or fails to meet any other Deadline in this Agreement, the City Commission may terminate this Agreement as provided above. In no case shall the City be entitled to require Developer to construct the Project. 01889367-1 -13- Page 593 of 971 This Agreement may be terminated by mutual consent, evidenced in writing, of the City and Developer or by their successors in interest. Section 9. Impact on other Agreements. It is specifically understood that the termination of this Agreement shall not cause the Continuing Parking Lease Agreements to terminate. Section 10. Default. a) In the event of a default by Developer under this Agreement which is not cured within thirty (30) days after written notice delivered to Developer, at any time thereafter, City shall have the right to proceed against Developer in an action for specific performance of this Agreement and/or for damages based on such default. Notwithstanding the foregoing, if such default cannot be cured within thirty (30) days, then Developer shall have such additional time as is reasonably necessary to cure the default, not to exceed 120 days, provided that Developer promptly commences to cure such default and diligently pursues the cure thereof. b) In the event of a default by City under this Agreement which is not cured within thirty (30) days after written notice delivered to City, at any time thereafter Developer shall have the right to proceed against City in an action for specific performance of this Agreement and/or for damages based on such default. Nothing in this Agreement shall be deemed a waiver of the City's sovereign immunity and in no case shall the damages or City liability exceed the amount established in Section 768.28, Florida Statutes, regardless of whether such damages or liability be based in tort, contract, indemnity, or otherwise. Notwithstanding the foregoing, if such default cannot be cured within thirty (30) days, then City shall have such additional time as is reasonably necessary to cure the default, not to exceed 120 days, provided that City promptly commences to cure such default and diligently pursues the cure thereof Section 11. Force Majeure. Notwithstanding anything in this Agreement to the contrary, if the performance of this Agreement or of any obligation hereunder is prevented, or substantially restricted or interfered with, by reason of an event of Force Majeure (defined below), the affected party, upon giving notice to the other party, shall be excused from such performance to the extent of and for the duration of such prevention, restriction of interference, and all applicable deadlines and timeframes herein shall be automatically extended for such period of time, plus an additional period of one hundred twenty (120) days. For purposes hereof, events of Force Majeure shall include, without limitation, one or more of the following occurrences that actually and substantially prevent, restrict, or interfere with any obligation hereunder: 1. An act of the federal, state, or local government, including any governmental directive or restriction implemented by law, proclamation, regulation, ordinance, executive or administrative order or edict, or imposed by martial law; 2. An act of God; 3. A natural disaster, epidemic, flood, earthquake, fire, hurricane, tornado, or other extreme weather event; 4. A civil disturbance, riot, or war, or an incident of domestic terrorism, 01889367-1 -14- Page 594 of 971 5. delay in transportation, shortage of labor or a strike, a failure of power, or any other cause of a like nature beyond the reasonable control of the party asserting such delays; 6. A virus outbreak, pandemic or plague in the United States; or 7. A declaration of a state of emergency in the United States or the State of Florida; If either party intends to claim excusal of performance due to an event of Force Majeure, that party shall notify the other party within 60 days of the onset of the event of Force Majeure; otherwise, the rights for excusal of performance under this paragraph shall be deemed waived for that event of Force Majeure. Section 12. Interpretation. Words not defined herein shall have the meaning prescribed by one the following sources: first, by the LDRs or Comprehensive Plan; next, if no definition appears in the LDRs or Comprehensive Plan, by the Florida Statutes; finally, if no definition appears in the LDRs, Comprehensive Plan, or Florida Statutes, then by an ordinary dictionary. Section 13. Binding Effect. This Agreement shall be binding on Developer, its designated successors and assigns, and City. Section 14. Notice. All notices, demands, correspondence and communication in connection with this Agreement must be in writing and shall be deemed to have been delivered on the date post -marked by (i) mailing the same by certified mail, (ii) on the date sent by overnight or the express courier, or (iii) sent via e-mail which shall be deemed delivered if no notice of non- delivery is received by sender, addressed to the respective parties at the following addresses: 01889367-1 To the City: City of Boynton Beach 100 E. Ocean Avenue Boynton Beach, FL 33435 ATTN: Dan Dugger, City Manager With a copy to: Michael Cirullo, Jr. Goren Cherof Doody and Ezrol, PA 3099 East Commercial Boulevard Suite 200 Fort Lauderdale, FL 33308 MCirullo2gorencherof.com Kathryn Rossmell Lewis, Longman & Walker, PA 360 S. Rosemary Avenue Suite 1100 West Palm Beach, FL 33401 krossmell(a,llw-law.com -15- Page 595 of 971 To Developer: c/o Time Equities, Inc. 55 Fifth Avenue 15th Floor New York, NY 10003 ATTN: Robert Singer, Director of Development Melinda Rubenstein, Esq., General Counsel rsinger(c�timeequities.com mrubenstein(c�timeequities.com With a copy to: Greenspoon Marder LLP Mark Lynn, Esq. 200 E. Broward Blvd. Suite 1800 Fort Lauderdale, FL 33301 mark lynn(c�gmlaw.com Section 15. Modification. This Agreement shall not be modified, amended or released as to any portion of the Property except by written instrument, executed by Developer, its successors or assigns and City; provided, however, that if state or federal laws are enacted after the execution of this Agreement that are applicable to and make it impossible for the parties to timely comply with the material terms of this Agreement, and City and Developer, within ninety (90) days after receipt of written notice from City of such new laws, working together in good faith and utilizing best efforts are not able to modify this Agreement or the Project (or both) in a mutually agreeable manner that is consistent with such relevant state or federal laws, then, subject to the severability provision in Section 20 below, this Agreement shall be modified to the extent necessary to comply with such relevant state or federal laws. Section 16. 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 Developer or its principals upon 30 days written notice to the City but without prior approval of the City. Developer further agrees that in the event Developer disposes of the Property or a portion thereof, Developer shall include in the terms of such disposal notice to the new property owner that acquisition of the Property includes the responsibility to fulfill the obligations hereunder, including Sections 5(c), 5(g), and 5(h) concerning public parking and public bathrooms, to the extent such obligations have not been fulfilled. For avoidance of doubt, the burdens of the development agreement shall be binding upon, and the benefits of the agreement shall inure to, all successors in interest to the parties to the agreement. The City is not required to provide prior approval in the event Developer disposes of the Property or any portion thereof. Section 17. 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 or partners or co -venturers, or creating or establishing the relationship 01889367-1 -16- Page 596 of 971 or a joint venture or partnership 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 parry. Section 18. Attorney's Fees. In the event that either party brings suit to enforce the terms of this Agreement, then the prevailing parry shall be entitled to recover all fees and costs, including attorney's fees and paralegal charges incurred in connection with such proceedings (including appellate proceedings) against the non -prevailing party. Section 19. Complete Agreement. This Agreement sets forth all of the promises, covenants, agreements, conditions and understandings between the parties hereto, and supersedes all prior and contemporaneous agreements, understandings, inducements or conditions, express or implied, oral or written. Section 20. Severability. The invalidity of any of the provisions hereof shall in no way affect or invalidate the remainder of this Agreement. Section 21. Governing Law/Waiver of Jury Trial. This Agreement shall be construed in accordance with the laws of the State of Florida, and any proceeding arising between the parties in any manner pertaining to this Agreement shall, to the extent permitted by law, be held in Palm Beach County, Florida. DEVELOPER AND CITY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER OR ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE RELATIONSHIP OF CITY AND DEVELOPER. THIS WAIVER BY THE PARTIES HERETO OF ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN. Section 22. Additional Documentation. The parties agree to execute such documents and take such actions are reasonably necessary to implement this Agreement. This paragraph shall not be read to require the City to approve any proposed Approval, development order, or take any specific quasi -legislative or quasi-judicial action. Section 23. Entire Agreement. This Agreement constitutes the entire agreement between City and Developer with respect to the development of the Project, and it supersedes all prior understandings or agreements between the parties. Section 24. Survival. The provisions of this Agreement regarding assignment, property disposal, limitation of liability, waiver, and termination shall survive the expiration or termination of this Agreement and remain in full force and effect. Section 25. 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. 01889367-1 -17- Page 597 of 971 Section 26. Construction. Each parry 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. Section 27. 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. Section 28. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall, together, constitute one and the same instrument. forth. 01889367-1 Section 29. Exhibits. All Exhibits attached hereto are incorporated herein as if fully set [END OF PAGE] [SCHEDULE OF EXHIBITS ON FOLLOWING PAGE] M. Page 598 of 971 SCHEDULE OF EXHIBITS Exhibit A — JKM Parcels Exhibit B — Land Swap Agreement Exhibit B-1 — Developer Swap Parcel Exhibit B-2 — Central Parcel Exhibit C — Escrow Agreement Exhibit D — Proposed Master Plan Exhibit E — Schematic Design Package Composite Exhibit F — Temporary Parking Easement Agreements Composite Exhibit G — Continuing Parking Lease Agreements Exhibit H — Utility Capacity Confirmation and Reservation Letter Exhibit I — Existing Infrastructure Exhibit J — Settlement Agreement 01889367-1 [SIGNATURES ON FOLLOWING PAGE] -19- Page 599 of 971 IN WITNESS WHEREOF the parties hereto have caused these presents to be executed. ATTEST: City Clerk APPROVED AS TO FORM: City Attorney STATE OF FLORIDA } COUNTY OF PALM BEACH } 01889367-1 CITY OF BOYNTON BEACH Mayor Address: The foregoing instrument was acknowledged before me this day of , 2022, by , as Mayor of the CITY OF BOYNTON -20- Page 600 of 971 BEACH, a municipal corporation of the State of Florida. He/she appeared before me ❑ in person or ❑ electronically and is personally known to me or has produced identification. Commission Expires: 01889367-1 -21 - as Page 601 of 971 Signed, sealed and delivered DEVELOPER: Printed Name: Printed Name: STATE OF ) SS COUNTY OF BOYNTON BEACH TOWN CENTER APARTMENTS, LLC, a Florida limited liablity company Dated: The foregoing instrument was acknowledged before me this day of , 2022, by of BOYNTON BEACH TOWN CENTER APARTMENTS, LLC, a Florida limited liablity company. (Seal) 01889367-1 He or she is appeared before me ❑ in person or ❑ electronically and is: [ ] personally known to me, or [ ] produced identification. Type of identification produced -22- NOTARY PUBLIC: Page 602 of 971 My commission expires: 01889367-1 -23- Print Name: Page 603 of 971 01889367-1 EXHIBIT A JKM Parcels PARCEL A: Parcel 2, Boynton Beach Town Square, according to the plat thereof, as recorded in Plat Book 127, Page 1, of the Public Records of Palm Beach County, Florida. PARCEL B: Parcel 3, Boynton Beach Town Square, according to the plat thereof, as recorded in Plat Book 127, Page 1, of the Public Records of Palm Beach County, Florida. PARCEL C: Parcel 7, Boynton Beach Town Square, according to the plat thereof, as recorded in Plat Book 127, Page 1, of the Public Records of Palm Beach County, Florida. -24- Page 604 of 971 01889367-1 EXHIBIT B Land Swap Agreement -25- Page 605 of 971 AGREEMENT FOR EXCHANGE OF REAL PROPERTY THIS AGREEMENT FOR EXCHANGE OF REAL PROPERTY (the "Agreement") is made and entered into as of the 26 day of January , 2023 (the "Effective Date"), by and between BOYNTON BEACH TOWN CENTER APARTMENTS, LLC, a Florida limited liability company ("BBTCA") and CITY OF BOYNTON BEACH, FLORIDA {"C"). This Agreement may refer to BBTCA or City individually as a "Party" or may refer to BBTCA and City collectively as "Parties". WITNESSETH: WHEREAS, BBTCA is under contract to acquire that certain real property and improvements thereon situate in the City of Boynton Beach, Palm Beach County, Florida, more particularly described in Exhibit "A" attached hereto (the "BBTCA Parcel"); and WHEREAS, City is the owner of that certain real property and improvements thereon situate in City of Boynton Beach, Palm Beach County, Florida, more particularly described in Exhibit "B" attached hereto (the "Cite Parcel"); and WHEREAS, BBTCA is under contract with JKM BTS North, LLC, JKM BTS South, LLC and JKM BTS Central, LLC (together, "JKM") to acquire certain real property located in Boynton Beach, Fldrida located adjacent to and near the BBTCA Parcel and the City Parcel (the "JKM Closing") simultaneous with the acquisition described herein; and WHEREAS, BBTCA is currently negotiating a separate agreement with City regarding development of, among other properties, the City Parcel and other adjacent and/or nearby parcels which BBTCA is acquiring from JKM (the "Development Agreement"). WHEREAS, contingent upon the JKM Closing, BBTCA has agreed to convey the BBTCA Parcel to City in exchange for City conveying to BBTCA the City Parcel; and NOW, THEREFORE, in consideration of Ten Dollars ($10.00) to each paid, and the mutual covenants and undertakings hereinafter contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the Parties, the Parties hereto, each intending to be legally bound hereby, do represent, warrant, covenant and agree with each other as follows: 1. Exchange of Properties. BBTCA agrees to convey and exchange the BBTCA Parcel to City in consideration of, and in exchange for, the conveyance and exchange to BBTCA of the City Parcel. The BBTCA Parcel and the City Parcel are sometimes collectively referred to herein as the "Parcels" or each a "Parcel". 2. Proration of Property Taxes and Assessments. Where applicable, real property taxes and assessments levied upon each shall be apportioned and prorated as of the Closing Date. If the amount of taxes for the year to be prorated cannot be ascertained as of the Closing, the rates, millages, and assessed valuations for the preceding calendar year (with known changes) shall be used for purposes of making the prorations at Closing, which prorations shall be adjusted when the actual proration is known. The provisions of this Section shall survive the Closing. (00549748.1306-9905263) Page 606 of 971 3. Closing Costs. General closing costs shall be shared equally by the Parties, including, but not limited to, recording costs, title insurance premiums and survey costs. Notwithstanding the foregoing, the Parties agree that BBTCA shall be solely responsible for the documentary stamps for both Parcels. The value of the two Parcels together, for the purpose of determining equivalent consideration for documentary stamp taxes and title insurance, is stipulated to be not more than a total of $6 million. Each party shall pay the expenses of their separate attorneys, environmental engineers and other due diligence consultants. Each party shall select their own respective title insurance agent. Neither party has dealt with any other broker or agent in connection with this transaction. Each Party shall indemnify and hold the other Party harmless from claims of any other broker, agent or claimant for a fee or commission related to this transaction arising by, through or under such indemnifying Party. 4. Inspection Period, Each Party shall have an "Inspection Period" which begins on the next business day following the date upon which this Agreement, fully executed and delivered by all Parties (the "Effective Date") and ends at 11:00 p.m. eastern time twenty-five (25) days after the Effective Date. The Parries shall have the Inspection Period within which to physically inspect the BBTCA Parcel and the City Parcel, as the case may be, to conduct their due diligence. Each Party's officers, employees, consultants, attorneys and other authorized representatives, shall have the right to reasonable access to the BBTCA Parcel and the City Parcel, respectively, and to all title information, surveys, environmental assessment reports and other information concerning the condition of such Parcels, at reasonable times during the Inspection Period for the purpose of inspecting such Parcels, taking soil and ground water samples, conducting hazardous materials and wetlands inspections, tests and assessments, and otherwise conducting its due diligence review of such Parcel(s). Each Party hereby agrees to indemnify and hold the other Party harmless from any damages, liabilities or claims for property damage or personal injury and mechanics or construction liens caused or created by the indemnifying Party or its agents or contractors. Each Party shall cooperate with and assist the other Party in making such inspections and reviews and in obtaining any governmental approvals for the exchange and contemplated uses of the Parties. Each Party shall give the other Party any authorizations, which may be required in order to gain access to records or other information pertaining to the particular Parcel or the use thereof maintained by any third party, governmental or quasi -governmental authorities or organizations. The Parties may mutually agree to extend the Inspection Period should conditions be found that would require additional analysis. The indemnities contained in this section shall survive the Closing or sooner termination of this Agreement. 5. Termination Right. Within the Inspection Period, either Party may, in its sole discretion, for any reason or for no reason, elect to terminate this Agreement, which election shall be made by notice to the other Party given within the Inspection Period. If such notice is not timely given, this Agreement and all rights, duties and obligations of the Parties (including without limitation their respective obligations to close the transaction), shall, subject to the terms and conditions hereof, become fully binding and the Parties shall proceed to Closing. If either Party timely furnishes such notice of termination to the other Party, this Agreement shall terminate and be of no further force or effect, except those provisions hereof which shall expressly survive termination. {00549748.1306-9905283) -2- Page 607 of 971 6. Title Commitment and Survey Permitted Exceptions. Within five (5) days after the Effective Date, each Party shall furnish to the other and to each other's counsel copies of any existing title information and surveys in its possession regarding the Parcel owned by it. Within fifteen (15) days of Effective Date, the Parties shall order, at their own expense, a title insurance commitment and current survey for each respective Parcel being acquired by that Party. Each Party shall have five (5) days after its receipt of both the title insurance commitment and survey for the Parcel it is acquiring within which to notify the other Party in writing of any conditions defects, encroachments or other objections to title or survey, which adversely affect marketability of title to the Parcel and are otherwise not acceptable to such Party. Any matter disclosed by such title insurance commitment (other than liens removable by the payment of money) or by such survey, which is not timely specified in such notice, shall be deemed a "Permitted Exception." Each Party shall respond within 10 days of receipt of such notice advising whether they intend to cure Each Party shall use reasonable and diligent efforts to cure all objections to title or survey by Closing. If the responding Party does not agree to cure any such qualifying defects in title, then the objecting party may, within five (5) business days of receipt of such response, terminate the Contract by written notice to the other Party whereupon the Parties shall have no further obligations hereunder. Otherwise, such defects objected to shall be deemed "Permitted Exceptions". Otherwise, the responding Party shall cause such defects to be cured at or prior to Closing. Notwithstanding the foregoing, mortgages, liens and other monetary encumbrances for which a liquidated amount can be ascertained shall be satisfied in full by the conveying Party at or prior to Closing. 7. Warranties. Representations and Covenants of the Parties. BBTCA represents and warrants to City as to the BBTCA Parcel, and City represents and warrants to BBTCA as to the City Parcel, respectively, as follows: (a) BBTCA is duly formed, validly existing and in good standing under the laws of its state of formation and has all requisite right, power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. (b) The execution, delivery and performance of this Agreement by each Party has been duly authorized and no consent of any other person or entity to such execution, delivery and performance is required to render this Agreement a valid and binding instrument enforceable against each Party in accordance with its terms and conditions. (c) No condemnation or eminent domain proceedings are now pending or, to the best of their knowledge, threatened and such Party has received no notice from any governmental agency or authority or other potential condemnor concerning any right-of-way, utility or other taking which may affect the Parcel owned by it. (d) To the best of its knowledge, the Parcel owned by such Party does not now contain nor has it contained any underground storage tanks, material amounts of hazardous material or landfills. Such Party has used no hazardous material at the Parcel owned by it, nor has such Party knowingly permitted any other person to do so. (e) Neither Party is a "foreign person" within the meaning of Section 1445 of the Internal Revenue Code, or under any comparable state statutes which are applicable to this {00549748.1306.9905263 } -3 - Page 608 of 971 transaction. At Closing, each Party will execute and deliver to the other Party an affidavit regarding such matters. (f) To each Party's knowledge, with respect to the Parcel owned by such Party, there are no (1) existing or pending improvement liens affecting such Parcel; (2) violations of building codes and/or zoning ordinances or other governmental or regulatory laws, ordinances, regulations, orders or requirements affecting such Parcel; (3) existing, pending or threatened lawsuits or appeals of prior lawsuits affecting such Parcel; (4) existing, pending or threatened condemnation proceedings affecting such Parcel; (5) existing, pending or threatened zoning, building or other moratoria, downzoning petitions, proceedings, restrictive allocations or similar matters that could affect Buyer's use of such Parcel. 8. Closing. Closing shall occur simultaneous with the JKM Closing. Notwithstanding anything herein to the contrary, if (i) the JKM Closing does not occur on or before December 31, 2023 (or other date agreed to by the Parties in an executed amendment to the Agreement) for any reason whatsoever and (ii) the Development Agreement is not entered into and fully executed by City and BBTCA and released from escrow as provided in such Development Agreement on or before December 31, 2023 (or other date agreed to by the Parties in an executed amendment to the Agreement) for any reason whatsoever, then either Party may, in its sole and absolute discretion, terminate this Agreement by written notice to the other Party, whereupon both Parties shall be automatically released from all obligations hereunder. 9. Closing Procedures. At Closing: (a) BBTCA shall convey title to the BBTCA Parcel to City via special warranty deed free and clear of all interests, liens and encumbrances, except Permitted Exceptions. (b) City shall convey title to the City Parcel to BBTCA by special warranty deed free and clear of all interests, liens and encumbrances, except Permitted Exceptions. (c) Each Party shall execute and deliver to the other Party such resolutions, affidavits, certifications and other instruments reasonably requested by a Party or by the respective title insurance company to effectuate the transactions contemplated hereby. 10. Default. In the event that either Party shall fail to fully and timely perform any of its obligations hereunder prior to Closing, and such failure shall continue for ten (10) days following notice thereof in writing from the non -defaulting Party, then the non -defaulting Party shall be entitled to any and all of the following remedies: seek and pursue specific performance of this Agreement or termination of this Agreement. In the event of a dispute between the Parties, the prevailing Party shall be entitled to recover from the non -prevailing Party all reasonable attorney's fees, costs and expenses incurred, including such fees, costs and expenses for all pre -suit legal services, all trial, post judgment and appellate court proceedings, any arbitration, mediation, and bankruptcy court proceedings, and including legal assistant time and other costs and expenses even if not taxable as court costs. However, the amount of the City's liability under this paragraph shall not exceed the amount established in Section 768.28, Florida Statutes, regardless of whether the City's liability is subject to protection under Section 768.28. [00549748-130(-9905263 1 -4- Page 609 of 971 11. Risk of Loss. If, prior to Closing, either Parcel, or any part thereof, shall be condemned or transferred in lieu of condemnation or become the subject of pending or threatened condemnation proceedings, then the affected Party shall so notify the other Party in writing, and: (a) Moor Loss. If such event would (in the affected Party's reasonable opinion) materially and adversely affect the affected Party's ability to develop its Parcel as intended (the City Parcel as a multifamily community; the BBTCA Parcel as a hotel), then the affected Party shall have the option either to (x) terminate this Agreement by giving written notice to the other Party within ten (10) days after receiving notice thereof or (y) consummate the transaction contemplated by this Agreement notwithstanding such condemnation. If either Party elects to terminate this Agreement, both parries hereto shall thereafter be released from all further obligations each to the other hereunder except the Parties shall not be released from those obligations which survive the termination of this Agreement. If the affected Party elects to consummate the transaction contemplated by this Agreement, then the Affected Party shall be entitled to (and the other Party shall assign to the affected Party all of the other Party's interest in, of and to) condemnation payments, awards and settlements. In the event the affected Party fails to notify Seller of its election of either Paragraph 11(a)(x) or Paragraph 11(a)(y) within the appropriate time period set forth above, then Buyer shall be conclusively deemed to have elected Paragraph 1 I (a)(y). 12. Assignment: Successors and Assigns. This Agreement is personal to the Parties and not assignable by either without the consent of the other; provided, however, that BBTCA may assign this contract to its affiliate upon 20 days notice to the City. 13. Aoylicable Law and Venue. This Agreement is to be construed and enforced according to the laws of the State of Florida. Venue shall be in Palm Beach County, Florida. 14. Notices. All notices herein required shall be in writing. Whenever any notice, demand or request is required or permitted hereunder, such notice, demand or request shall be hand -delivered personally or sent by express mail or courier service or by email or by fax to the addresses set forth below: As to BBTCA: c/o Time Equities, Inc. 55 Fifth Avenue 15th Floor New York, NY 10003 ATTN: Robert Singer, Director of Development Melinda Rubenstein, Esq., General Counsel rsinger Aimeequities.com innibenstein(i)timeeciuities. com With a copy to: Greenspoon Marder LLP 200 E. Broward Blvd., Suite 1800 Fort Lauderdale, FL 33301 ATTN: Mark J. Lynn, Esq. mark.l rnns4,gmlaw.com (00549748.1306.9905263) -5- Page 610 of 971 As to the City: City of Boynton Beach 100 E. Ocean Avenue Boynton Beach, FL 33435 ATTN: Dan Dugger, City Manager With a copy to: Michael Cirullo, Jr. Goren Cherof Doody and Ezrol, PA 3099 East Commercial Boulevard Suite 200 Fort Lauderdale, FL 33308 MCirulloti,worencherof col Kathryn Rossmell Lewis, Longman & Walker, PA 360 S. Rosemary Avenue Suite 1100 West Palm Beach, FL 33401 lossmelliilllw-law. coni Any notice or demand to be given hereunder shall be deemed sufficiently given for all purposes hereunder (1) at the time such notices or demands are hand -delivered, or (2) upon receipt or refusal of delivery if sent by reputable overnight courier service or (3) upon sending by email provided the sending does not receive a message signaling an error in delivery. Any Party hereto may change its address by notice in writing to the other parties in the manner herein provided. Counsel for either Party may provide notices for their respective clients. 15. Time. Time is of the essence of this Agreement, provided that if any date upon which some action, notice or response is required of any party hereunder occurs on a weekend or national holiday, such action, notice or response shall not be required until the next succeeding business day. 16. Entire Agreement. This Agreement contains all of the agreements, representations, and warranties of the parties hereto and supersedes all other discussions, understandings or agreements in respect to the subject matter hereof. 17. Construction,. This Agreement shall not be construed more strictly against either party by virtue of the preparation of this Agreement. This Agreement may be executed in counterparts, each of which shall be an original and both of which shall constitute one and the same agreement. This Agreement may be signed electronically or by e-mail. 18. AS IS. EXCEPT AS SPECIFICALLY SET FORTH HEREIN AND IN THE CLOSING DOCUMENTS, IT IS UNDERSTOOD AND AGREED THAT EACH PARTY DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESSED OR IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR REPRESENTATIONS AS TO MATTERS OF TITLE, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL CONDITIONS, VALUE, OPERATING HISTORY, OR ANY {00549748.1306-9905x631 -6- Page 611 of 971 OTHER MATTER OR THING RELATING TO OR AFFECTING THE PROPERTY. EACH PARTY AGREES THAT WITH RESPECT TO THE PROPERTY SUCH PARTY IS ACQUIRING AND EXCEPT AS SPECIFICALLY SET FORTH HEREIN, SUCH PARTY HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF THE CONVEYING PARTY, ITS AGENTS OR EMPLOYEES. EACH PARTY REPRESENTS THAT IT IS A KNOWLEDGEABLE BUYER OF REAL ESTATE AND THAT SUCH PARTY IS IS RELYING SOLELY ON ITS OWN EXPERIENCE AND ITS OWN CONSULTANTS, AND EACH PARTY, AS OF THE INSPECTION COMPLETION DATE, SHALL HAVE CONDUCTED SUCH INVESTIGATIONS AND INSPECTIONS OF THE PROPERTIES, INCLUDING, BUT NOT LIMITED TO, PHYSICAL AND ENVIRONMENTAL CONDITIONS, AND SHALL RELY UPON SAME, AND UPON CLOSING, SHALL ASSUME THE RISK OF ALL ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS WHICH MAY NOT HAVE BEEN REVEALED BY BUYER'S INSPECTIONS AND INVESTIGATIONS. EACH PARTY ACKNOWLEDGES AND AGREES THAT UPON CLOSING, THE CONVEYING PARTY SHALL SELL AND CONVEY TO THE ACQUIRING PARTY AND THE ACQUIRING PARTY SHALL PURCHASE AND ACCEPT FROM THE CONVEYING PARTY THE PROPERTY "AS IS" AND "WHERE IS" WITH ALL FAULTS AND THERE ARE NO ORAL AGREEMENTS, WARRANTIES, REPRESENTATIONS, COLLATERAL TO OR AFFECTING THE PROPERTY OTHER THAN AS SPECIFICALLY SET FORTH IN THIS AGREEMENT. THE PROVISIONS OF THIS PARAGRAPH SHALL SURVIVE CLOSING. [Remainder of page intentionally left blank - signatures appear on the following page] {00549748.1306-9905x63} -7- Page 612 of 971 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. {00549748.13o6-9905263) "BBTCA" BOYNTON BEACH TOWN CENTER APARTMENTS, LLC, a Florida limited liability c mpany By: Print Name: ,,o ku'rf Title: 011,1 VA Date: V1 (/L(", "CITY„ CITY OF BOYNTON BEACH AF By: .------------------- Print Name: U Title. Date: In Page 613 of 971 Exhibit "A" (Legal Description of BBTCA Parcel) Parcel 3, Boynton Beach Town Square, according to the plat thereof, as recorded beginning in Plat Book 127, Page 1, of the Public Records of Palm Beach County, Florida. Page 614 of 971 Exhibit "B" (Legal Description of City Parcel) Parcel 1, Boynton Beach Town Square, according to the plat thereof, as recorded beginning in Plat Book 127, Page 1, of the Public Records of Palm Beach County, Florida. Page 615 of 971 01889367-1 EXHIBIT B-1 DEVELOPER SWAP PARCEL Parcel 1, Boynton Beach Town Square, according to the plat thereof, as recorded in Plat Book 127, Page 1, of the Public Records of Palm Beach County, Florida. -26- Page 616 of 971 01889367-1 EXHIBIT B-2 CENTRAL PARCEL Parcel 3, Boynton Beach Town Square, according to the plat thereof, as recorded in Plat Book 127, Page 1, of the Public Records of Palm Beach County, Florida. -2/- Page 617 of 971 01889367-1 EXHIBIT C Escrow Agreement MI. Page 618 of 971 ESCROW AGREEMENT This Escrow Agreement (the "Agreement"), is entered into this day of , 2023, among CITY OF BOYNTON BEACH, FLORIDA ("City") BOYNTON BEACH TOWN CENTER APARTMENTS, LLC, a Florida limited liability company (`BBTCA"), and Goren, Cherof, Doody & Ezrol, P.A., a Florida Profit Corporation ("Escrow Agent"). WITNESSETH: WHEREAS, in connection with the prospective development of that project commonly known as Boynton Beach Town Square bounded generally by Seacrest Blvd., E. Boynton Beach Blvd., SE 2nd Avenue and NE Ist Street in Boynton Beach, Florida, (the "Property"), City and BBTCA have executed the following agreements: a. Development Agreement by City and BBTCA("Development Agreement") (one original), b. Temporary Parking Easement Agreement by City and BBTCA ("Temporary Parking Easement") (two originals), and c. Continuing Parking Lease Agreement (two originals) together, the "Escrow Documents"; and WHEREAS, BBTCA is under contract with JKM BTS North, LLC, a Florida limited liability company, JKM BTS Central, LLC, a Florida limited liability company and JKM BTS South, LLC, a Florida limited liability company (together, "JKM") to acquire a portion of the Property, the closing of which is anticipated to occur on or before December 31, 2023 (the "JKM Closing"); and WHEREAS, prior to entering into this Agreement City and BBTCA have entered into that certain Land Swap Agreement pursuant to which, City will convey certain City -owned property to BBTCA in exchange for which BBTCA will simultaneously convey a portion of the property acquired from JKM to City (the "Land Swap Closing"), which closing shall occur simultaneously with the JKM Closing (the JKM Closing and the Land Swap Closing are referred to together as the "Closings"); and WHEREAS, JKM and City are in litigation regarding the terms of a prior development agreement between those parties in the case styled City of Boynton Beach v. JKM BTS Capital, LLC, Case No. 502020CA012780XXXXMB; which litigation will be fully resolved by the agreed terms of the Settlement Agreement, which Settlement Agreement is contingent upon the JKM Closing, the execution of the Development Agreement, and the Temporary Parking Easement becoming effective simultaneous with the effective date of the Development Agreement; and WHEREAS, City and BBTCA have agreed that the Escrow Documents shall be binding on the parties and released by Escrow Agent only upon the occurrence of the Closings and upon compliance with the following terms and conditions. NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and upon 01888469-3 Escrow Agreement - Boynton Beach project:51781462_1 Page 619 of 971 and subject to the terms, provisions and conditions hereinafter set forth, City and BBTCA and Escrow Agent hereby agree as follows: Recitals. The Recitations set forth above are incorporated herein by this reference. 2. Receipt by Escrow Agent. Escrow Agent hereby acknowledges receipt of the Escrow Documents. 3. Release of Escrow Documents. Escrow Agent shall hold the Escrow Documents in escrow until the Closings occur. The occurrence of the Closings shall be evidenced by simultaneous execution and delivery to Escrow Agent of (i) a letter executed by BBTCA, confirming that the JKM Closing has occurred and Escrow Agent is authorized to release the Escrow Documents, and (ii) a joint letter executed by BBTCA and City, confirming that the Land Swap Closing has occurred and Escrow Agent is authorized to release the Escrow Documents (the "Confirming Letters"). Escrow Agent's receipt of the Confirming Letters via e-mail delivery shall constitute irrevocable and conclusive authorization for Escrow Agent to immediately release all of the Escrow Documents, as set forth below: a. Development Agreement — An executed copy shall be delivered via e-mail to City and BBTCA, with the original to be delivered to City via overnight delivery; b. Temporary Parking Easement Agreement — shall be recorded by Escrow Agent in the Public Records of Palm Beach County, Florida (after the recording of the applicable documents for the Closings) and a recorded copy shall be delivered via e-mail to City and BBTCA; and c. Continuing Parking Lease Agreement — An executed copy shall be delivered via e- mail to City and BBTCA , with the original to be delivered via overnight delivery to City and one copy delivered via overnight delivery to BBTCA. The Confirming Letters shall also serve as irrevocable and conclusive confirmation that the Escrow Documents are binding and of immediate force and effect, and may be dated by Escrow Agent on the same date as such Confirmation Letters are received by Escrow Agent. 4. Escrow Provisions. The Escrow Agent is acting as stakeholder only with respect to the Escrow Documents. If there is any valid dispute as to whether the Escrow Agent is obligated to release and record (as applicable), or continue to hold the Escrow Documents, the Escrow Agent shall not take any further action, but in such event, the Escrow Agent shall hold same until receipt by it of joint authorization in writing, directing the disposition of same executed by City and BBTCA; or in the absence of such authorization, the Escrow Agent shall hold the Escrow Documents until final determination of the rights of the applicable parties in the appropriate proceedings. If such written authorization is not given or proceedings for such determination are not begun within five (5) business days of written demand by Escrow Agent to BBTCA and City and diligently continued, the Escrow Agent may bring an interpleader or other court action as Escrow Agent deems appropriate. Any such court action must be brought in Palm Beach County, Florida. The Escrow Agent shall be reimbursed by BBTCA and City (who shall be jointly and severally responsible for such reimbursement) for all reasonable costs and expenses of such action or proceeding, including, without limitation, reasonable attorneys' fees. Upon completion of delivery of the recorded Escrow Documents to the appropriate parties, the Escrow Agent shall have no further liability unless such delivery constituted willful misconduct or gross 01888469-3 Escrow Agreement - Boynton Beach project:51781462_1 Page 620 of 971 negligence. This Agreement will expire when the Escrow Documents have been recorded (as applicable) and delivered to the appropriate parties as set forth herein. 5. Liabilities of Escrow Agent. Escrow Agent shall be liable only to hold the Escrow Documents received herewith and to hold, record (as applicable) and deliver them to the appropriate parties in accordance with the provisions of this Agreement and any amendments hereto, it is being expressly understood that by acceptance hereof Escrow Agent is acting in the capacity of a depository only and shall not be liable or responsible to anyone for any damages, losses, or expenses unless same shall be caused by its gross negligence or willful malfeasance. 6. Modification or Termination. This Agreement shall not be modified, revoked, released, or terminated, except upon the mutual consent of City, BBTCA and Escrow Agent given in writing and delivered to Escrow Agent subject to the provisions of Paragraph 7 hereof. 7. Resignation of Escrow Agent. Should, at any time, any attempt be made to modify this Agreement in a manner that would increase the duties and responsibilities of Escrow Agent, or to modify this Agreement in any manner that Escrow Agent shall deem undesirable, or at any other time, Escrow Agent may resign by notifying the parties hereto in writing, by certified mail to their respective addresses set forth below; and until the acceptance by a successor as escrow agent as shall be appointed by such parties and delivery of the Escrow Documents to the successor escrow agent, Escrow Agent's only remaining obligation shall be to perform its duties hereunder in accordance with the terms of this Agreement. 8. Public Records. The City is a municipality subject to Chapter 119, Florida Statutes. The Escrow Agent shall comply with Florida's Public Records Law. Specifically, the Escrow Agent shall: a. Keep and maintain public records required by the City to perform the Escrow Agent's responsibilities described in this Agreement. b. Upon request from the City's custodian of public records, provide the City with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119, Florida Statutes, or as otherwise provided by law. c. Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the contractor does not transfer the records to the City. d. Upon completion of the contract, transfer, at no cost, to the City all public records in possession of the Escrow Agent or keep and maintain public records required by the City to perform the service. If the Escrow Agent transfers all public records to the City upon completion of the Agreement, the Escrow Agent shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Escrow Agent keeps and maintains public records upon completion of the contract, the Escrow Agent shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the City, upon request from the City's custodian of public records, in a format that is compatible with the information technology systems of the City. IF THE ESCROW AGENT HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO 01888469-3 Escrow Agreement - Boynton Beach project:51781462_1 Page 621 of 971 THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT (561)742-6060; 100 E. Ocean Avenue, Boynton Beach, Florida 33435; or cityclerkLa),hbfl.us. The Escrow Agent also understands that City may disclose any document in connection with this Agreement, so long as the document is not exempt or confidential and exempt from public records requirements. 9. Additional Provisions. This Agreement contains the entire understanding between and among City, BBTCA and Escrow Agent, and shall be binding upon and inure to the benefit of such parties, and subject to its terms, their respective successors, heirs, assigns, and legal representatives. This Agreement may be executed and delivered in any number of counterparts, each of which, when so executed and delivered, shall be deemed to be an original and all of which shall constitute one and the same instrument. This Agreement is being executed and delivered in and shall be governed by and construed and enforced in accordance with the laws of the State of Florida. In the event of litigation between any of the parties, the parties hereby irrevocably agree that venue shall be in a court of competent jurisdiction in Palm Beach County, Florida. Facsimile or electronic transmission copies of execution pages of this Agreement or any amendments of this Agreement or notices pursuant this Agreement shall constitute original execution documents for purposes of this Agreement or any such amendment or notice. BBTCA hereby acknowledges that Escrow Agent is also counsel for the City in the transactions contemplated in this Agreement and the Escrow Documents. In the event of a dispute between any of the parties, the parties consent to Escrow Agent continuing to represent the City (to the extent permitted under applicable law), notwithstanding that Escrow Agent shall continue to have the duties provided for in this Agreement. Nothing in this Agreement shall be deemed to affect the rights, privileges, and sovereign immunities of the City as set forth in Section 768.28, Florida Statutes and any liability to the City arising or concerning this Agreement shall be limited to the amount set forth in Section 768.28, Florida Statutes. 10. Notices. Any notices required or permitted to be given hereunder shall be given by overnight courier, certified or registered mail, return receipt requested, to the following addresses or to such other single address as either parry hereto shall notify the other: For BBTCA: Jerneb Acquisition Corp. I c/o Time Equities, Inc. 55 Fifth Avenue —15th Floor New York, New York 10003 Attention: Robert Kantor and Robert Singer Email: rkantor &timeequities.com rsin er &timeequities.com With Counterpart to: Mark J. Lynn, Esq. Greenspoon Marder LLP 200 E. Broward Boulevard Suite 1800 Fort Lauderdale, FL 33301 e-mail: markt nn L&g law.com 01888469-3 Escrow Agreement - Boynton Beach project:51781462_1 Page 622 of 971 For the City: Dan Duggar, City Manager 100 E. Ocean Avenue Boynton Beach, FL 33435 Email: DuggarD(cr bbfl.us With Counterparts to: Michael D. Cirullo, Jr. 3099 East Commercial Boulevard, Suite 200 Fort Lauderdale, FL 33308 Email: MCirullo a>,OorenCherof.com Kathryn B. Rossmell 360 S. Rosemary Avenue, Suite 1100 West Palm Beach, FL 33410 Email: krossmell(�llw-law.com Escrow Agent: Michael D. Cirullo, Jr. 3099 East Commercial Boulevard, Suite 200 Fort Lauderdale, FL 33308 Email: MCirullo(a>,OorenCherof.com [THIS SPACE INTENTIONALLY LEFT BLANK] 01888469-3 Escrow Agreement - Boynton Beach project:51781462_1 Page 623 of 971 IN WITNESS WHEREOF, the undersigned have signed and sealed this Agreement as of the date set forth above. Signed, sealed and delivered In the presence of - Witnesses: (Signature) Print Name (Signature) Print Name Witnesses: (Signature) Print Name (Signature) Print Name BOYNTON BEACH TOWN CENTER APARTMENTS, LLC, a Florida limited liability company By: Name: Title: CITY OF BOYNTON BEACH, FLORIDA, a Florida municipal corporation By::_ Name: Title: 01888469-3 Escrow Agreement - Boynton Beach project:51781462_1 Page 624 of 971 Witnesses: (Signature) Print Name (Signature) Print Name GREENSPOON MARDER LLP, a Florida limited liability partnership By: Name: Title: 01888469-3 Escrow Agreement - Boynton Beach project:51781462_1 Page 625 of 971 01889367-1 EXHIBIT D Proposed Master Plan -29- Page 626 of 971 PHASE =3 NORTH RESIDENTIAL/ COMMERCIAL 441 UNITS TPHASE 11 PHASE G&ERNM�INT/ .. CENTRAL PARCEL CIVIC R_ 1'�E P" xo IF, PHASE 1 GOVERNMENT/ rVIC " DEVELOPMENT TEAM — — — — — — — — — -..... 11A""El TIA11111 FlIA -IL FlF1' I'L "'I' EN-ElB 11,11411 AlIlITIIT 11 A 1111111 "I" IF,Ise LSF AacLA" 'C'APE 1 N'O'11�14�l L 11, 1 A K I I NN B IA I I 1.NTlFLALl T111 P_ _ 11 Exhibit D - Master Plan LOCATION MAP urban E= desin stuc?(0 U- D n 6 PInq NOUN L.ndcape A -It ... B, PHASE2 SOUTH RESIDENTIA= 1 of 2 COMMERCIAL 4 4�' UNITS 5 UNITS Bn� DEVELOPMENT TEAM — — — — — — — — — -..... 11A""El TIA11111 FlIA -IL FlF1' I'L "'I' EN-ElB 11,11411 AlIlITIIT 11 A 1111111 "I" IF,Ise LSF AacLA" 'C'APE 1 N'O'11�14�l L 11, 1 A K I I NN B IA I I 1.NTlFLALl T111 P_ _ 11 Exhibit D - Master Plan LOCATION MAP urban E= desin stuc?(0 U- D n 6 PInq NOUN L.ndcape A -It ... B, FIRE STATION PARCEL 1 of 2 02 09, 2023 ---------- SITE DATA IFN �� ...... ...... N'ENL_ F'N �EBI INTF PANNBT 1.11EP -11 Al 1 -11 IIA P'gP MAGNUSON PROJECT SUMMARY HOUSE cep EA ... P-1 P-I.E. 'AREA' OR Op.='.m.II Inc B, LEms�6r O.lE-IINNl LU IF,, -"Em I 11, 4 111 IN N— I N- I 1114PI NI. ll—_ 11TI1111111. GROSS AREA 115622 5�62 676,946 662,757 'PLATTED PLPROD ECT AREA :3 rvcwoE L='l`LFP="K'FlHL'TLP, , 1 N- L" F cy U_ USEABLE OPEN SPACE CALCULATION GROB,- SIT, ARFRss A z III Ii LIIALNII IELFA Pl.lABl lO 1-111 INAP I 'El III ,1FIZUB11%, I'll I P"""' 0 NOTES IN. PEL I 11 IF NPLITER PLAN PN.PP— B.INEPLIES OT ANN LUPPIELF ElS ILE BRO. - ILE EEI.FNE) PUT( 121 RPOEIF I I PI111D s". -l' ONT _FHE 0 M I— 21 SILL 11 11 111 *1" PPP -1-1 ,lNFJ LET 111BUT PI 11 FIFAAAAL PLO PINIFIN, LF'E.':AN'N 0F'NFBP Z.�B1I I �ION,TON.ONlPlAN_�l 1�91PENIEPE11:- P-1 LIN 11 l 2 11 51111 1 PHASE I A AN, N UI. N011 F 4 PEP(S) LLF OF 0PAPOEO ON P-PBB 4 511B 'NUBA... ON ME APP-1—AND F—E.T I FILE PIN PPPN—LS ANN LE.NUN. IFR�r Pl- ANO -111T I FILION.1 I III N - 9l III, III PI—F-LLK =_N_ FlIFIAINFRIPPIFLIT. NORTH 121 -NI I LEGEND 11 1111EPH NIPIIAL - 11 11 TO , tN)1111 IT 11`1111 IFILL BE *111 11111LI ONILL —111 FTIMI IF III PLAN IRPLIOPIII OT UPILIFF PIRS IIEL BE IBIONAID UNDLEBOOPNO SUBJECI 10 11 All MSP -1 of 2 -ND Exhibit D - Master Plan 2 of 2 02 09, 2023 -- -- --- ---- ------- ------ -------------- PARKING - SPA - CES REWIRED ------------- �FUSE SJ -Sp NCES 01885343-2 EXHIBIT E Schematic Design Package (Includes Preliminary Site Plan) https:/hnsaarchitectsinc.sharefile.com/d-s66919c5ce5a54556bc9ll 5I c4d1b03fc I -2/- Page 629 of 971 01889367-1 COMPOSITE EXHIBIT F Temporary Parking Easement Agreements -31- Page 630 of 971 TEMPORARY PARKING EASEMENT AGREEMENT (CENTRAL PARCEL) THIS TEMPORARY PARKING EASEMENT AGREEMENT (this "Easement") is made and executed as of , 2023, by and between Boynton Beach Town Center Apartments, LLC, a Florida limited liability company, C/O Time Equities, Inc. 55 Fifth Avenue, 15th Floor New York, NY 10003 ("Grantor") and The City of Boynton Beach, Florida, a political subdivision of the State of Florida, 100 East Ocean Avenue, Boynton Beach, FL 33435 ("City"). WITNESSETH: WHEREAS, Grantor and the City are entering into a Development Agreement ("Development Agreement") on a date even with the Effective Date (defined below), and Grantor is, or shall be on the Effective Date, the owner of certain property located in Boynton Beach, Palm Beach County, Florida described on Exhibit "A" attached hereto and made a part hereof (the "Grantor Property"); and WHEREAS, as of the date first mentioned above, the City is the beneficiary of certain recorded Temporary Parking Easement Agreements with JKM BTS Central, LLC, JKM BTS Capital, LLC, and JKM BTS North, LLC, (collectively, "JKM") recorded in Palm Beach County Official Record Book 31962, Page 1449 and Book 31962, Page 1434 (together, the "Existing Temporary Parking Easements"); and WHEREAS, Grantor intends to purchase the Grantor Property from JKM; and WHEREAS, it is the desire of Grantor and the City to terminate the Existing Temporary Parking Easements and simultaneously enter into this Easement, and enter into a like easement on certain other property known as the "North Parcel"; and WHEREAS, the Grantor Property is the subject of a Development Agreement which contemplates development of a mixed-use project, together with a parking structure (the "Project"), and which, once constructed, is intended to be occupied by tenants to reside or conduct business therein and shall provide permanent parking to the City therein pursuant to a separate continuing parking lease agreement; WHEREAS, the temporary parking spaces provided by this Easement, along with a like easement with Grantor over the North Parcel, are intended to satisfy the temporary parking which Grantor may hereafter be required to provide to the City with respect to the parking structure (the "South Garage") contemplated for construction upon certain property located in Boynton Beach, Palm Beach County, Florida described on Exhibit "B" attached hereto and made a part hereof (the "South Parcel") pursuant to the Development Agreement, 01889361-1 Page 631 of 971 without releasing or modifying any of Grantor's other contingent obligations to provide temporary parking as referenced therein; and WHEREAS, Grantor desires to establish, create and grant for the benefit of, and as a burden upon, the Grantor Property, a temporary exclusive easement for use by City over and across the portion of the Grantor Property as described in Exhibit "C" attached hereto and made a part hereof (the "Easement Property") for the purposes and upon the terms and conditions as set forth herein, for the benefit of City; the Easement Property, together, if separately agreed in writing by City and Grantor, with an easement across adjacent property owned by another affiliate of Grantor (the "Adjacent Property") or any alternative parking arranged at another location (any such location or locations, collectively, "Alternative Property") by Grantor with the consent of City (which consent shall not be unreasonably withheld), is intended to provide at least 103 parking spaces for use by the City as set forth in this Easement; and NOW, THEREFORE, in consideration of the mutual covenants and agreements heretofore made, and in satisfaction of the requirement to provide temporary parking under the Development Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties hereto, Grantor and City hereby agree as follows: 1. Recitals. The foregoing recitals are true and correct and are hereby incorporated into this Easement by reference in their entirety. 2. Parking Easement. a. Parking Easement. Grantor hereby establishes, creates and grants to the City a temporary, exclusive easement for parking on the parking areas constructed and existing from time to time within the Easement Property and for the existing road and driveway used to access the parking areas (the "Parking Easement"). Grantor establishes, creates and grants the Parking Easement for City to use, without payment of any fee or charge, the Easement Property for the intended purposes as set forth in this Easement. For the avoidance of doubt, the Parking Easement only includes the Easement Property and does not include any right to use or enter upon any portion of the Grantor Property outside of the Easement Property. This Easement shall become effective upon the execution of this Easement by both parties and Grantor's closing on the Grantor Property ("Effective Date"). This Easement shall be recorded in the Public Records of Palm Beach County, Florida. b. Right to Modify, Remove or Relocate Parking Easements. Grantor shall have the right, at any time and from time to time, upon 90 days prior written notice to City, to modify, remove and relocate all or any portion of the Parking Easement described herein to another location, with the consent of the City (which consent shall not be unreasonably withheld, conditioned, or delayed), within the Grantor Property (or to an Alternative Property owned by Grantor or 01889361-1 Page 632 of 971 to an Alternative Property procured via acquisition, lease, or other possessory interest by Grantor), provided in all events that the City is provided the use of at least 300 spaces when taking into account spaces provided by or procured by Grantor or its affiliates at the Grantor Property, the Adjacent Property, and any Alternative Property. For purposes of this Easement, it is anticipated that in the event a modification, removal, or relocation of the Parking Easement results in the parking area being located more than .25 miles from the entrance to City Hall (measured from the point in the parking area closest to City Hall to the entrance doorway to City Hall), the City may condition its consent for such modification, removal, or relocation on Grantor's provision of shuttle service from the parking area to City Hall. c. Termination. The Parking Easement shall be terminated, upon at least ten (10) business days prior written notice, at such time construction of the South Garage is complete and a certificate of occupancy (or equivalent certification) has been issued for the same, or at such time as Grantor shall have provided (either itself, through one of its affiliates, or through a third party) alternative parking arrangements consented to by the City (which consent shall not be unreasonably withheld) until such time as the South Garage can be completed. Following termination of the Parking Easement and provided alternative parking has been provided subject to terms and conditions reasonably comparable to those set forth in this Easement, City shall cease using the Easement Property for parking, and the City will enter into an agreement terminating this Easement and all rights hereunder. d. No Assignment or Transfer. The Parking Easement may not be assigned or transferred by City. Any attempted assignment or transfer of the Parking Easement or any rights granted herein shall be null and void and shall be deemed a violation of the Parking Easement. Grantor may assign this Easement to its affiliate without City's consent, provided that Grantor shall provide City not less than 30 days' advance written notice of such assignment, provided such assignment is for the whole of this Easement. 3. Prohibited Use. The intended use of the Easement Property is for parking of typical passenger vehicles by City employees, their invitees, and the general public in connection with business with the City or attending civic events; for the avoidance of doubt, the City shall not use or park any heavy equipment, buses, recreational vehicles, or other oversized vehicles within the Easement Property. The City will use its best efforts to prohibit or limit any use not consistent with the intended use. The City will not use the Easement Property to stage any civic or social events, City shall be prohibited from using the Easement Property in violation of any law or for any purpose other than use of the Parking Easement. The City will establish and enforce reasonable restrictions assure that minors less than 12 years of age are permitted on the easement property only when accompanied by an adult and that animals are prohibited on the easement property except when on leash or other physical halter. The City will mark or sign the walkways from the parking lots to City facilities to enhance safety and minimize foot -traffic movement onto adjacent Grantor properties. Subject to applicable governmental requirements and approvals, and with the consent of City (which consent shall 01889361-1 Page 633 of 971 not be unreasonably withheld), Grantor may post signs on the Grantor Property and/or the Easement Property setting forth the rules and restrictions for the use of the Easement Property consistent with the terms of this Easement, and the prohibition of use of portions of the Grantor Property other than the Easement Property. 4. Use by Grantor. Grantor may continue to use the Easement Property and all other portions of the Grantor Property for any lawful purposes that do not unreasonably interfere with the easement rights granted herein, including the right to improve the easement areas, which improvements may include parking, paving, sidewalks, lighting, landscaping, green spaces, recreational areas, drive aisles for motor -vehicles, and construction of the Project (including, without limitation, installation of staging areas). City shall not interfere in any manner with Grantor's operations and activities upon the Easement Property. 5. Maintenance. a. Definition of Maintenance Obligations. The term "Maintenance Obligations" means any and all obligations to maintain, safeguard, upkeep, operate, repair, replace and remove the parking areas so that the Easement Property and the Grantor Property remain reasonably safe for the parking of vehicles and the access to such vehicles by their operators. b. City Duties. The City will keep the parking area free of debris. The City is responsible for the repair of any damage caused by the storage or operation of City heavy equipment, buses, recreational vehicles, or other oversized vehicles on the Easement Property. c. No City Duty. The City has no duty to remove or pay for removal of the temporary parking improvements when the temporary use ends. d. Performance. Subject to Sections 5(a) and (b), Grantor shall be responsible to perform all Maintenance Obligations as reasonably necessary and reasonably required hereby on or at the Easement Property. e. Standard of Care. To the extent required to be performed by each of the parties hereto as set forth in this Easement, all Maintenance Obligations shall be performed in a good and workmanlike manner, and in compliance in all respects with all applicable laws, rules, regulations and ordinances of all governmental authorities having jurisdiction over the Grantor Property or the Easement Property. 6. No Duties of Grantor. Grantor and its members, managers, lenders (including any lender with a mortgage upon the Grantor Property), attorneys, employees, and agents (together, the "Grantor Parties") shall not have any duty to City whatsoever with respect to the Parking Easement or the Easement Property, including no duty to provide to City any services whatsoever, except infrastructure maintenance as required by, and subject to those limitations set forth in, Section 5 and any conditions imposed by the City in exchange for the City's consent to modify, remove, or relocate the Parking Easement. Furthermore, Grantor Parties shall not have any duty to City or any of City's employees, agents, 01889361-1 Page 634 of 971 contractors, guests, or invitees to provide security or to monitor the Grantor Property or the Easement Property in order to protect against injury to any person or to safeguard or protect any vehicles or personal property of any such parties. Grantor shall not have any liability whatsoever for any injury to any person or for any lost, stolen, or damaged property to City or any of City's employees, agents, contractors, guests, or invitees. City and City's employees, agents, contractors, guests, and invitees assume all risk of injury to any person and loss (including, but not limited to theft) and damage to any of their respective vehicles or other personal property, and City, on its own behalf and on behalf of City's employees, agents, contractors, guests, or invitees, agrees to hold Grantor harmless from and against any and all damages in connection with the Parking Easement including, but not limited to, consequential damages, arising with respect to the matters set forth in this Easement. Grantor Parties shall not have any obligation to assist (or to cause their employees or agents to assist) City in collecting and/or removing any vehicles or personal property of City or other Party from the Easement Property after the Parking Easement has been terminated. Any vehicles or personal property left on the Easement Property after termination of the Parking Easement shall be deemed to have been abandoned, and Grantor may remove any such vehicles or personal property from the Easement Property without any obligation to account to City or any other party with respect thereto. 7. Indemnification. City agrees to indemnify and hold harmless Grantor Parties from and against any damage, cost, or liability to the Grantor Parties or the Grantor Parties' property (including the Grantor Property) caused by the use of the Parking Easement granted herein or the exercise of any rights granted in connection with the Parking Easement, unless such damage, cost or expense was caused by a failure of Grantor to maintain the infrastructure as required by Section 5 or the negligence or willful misconduct of the Grantor Party. Nothing in this paragraph shall be interpreted as a waiver of City's sovereign immunity or the limitations of liability set forth in Sec. 768.28, Florida Statutes. 8. Default. a. Default. If City shall be in default under any of the obligations applicable to it as set forth in this Easement for 72 hours after receipt of written notice of default (or such lesser time in the event of an emergency) given by Grantor, or if such default shall be of such a nature that the same cannot practicably be cured within such 72 hour period and City shall not within such period commence the curing of such default and thereafter with due diligence complete the curing of such default, then Grantor may take appropriate steps to cure such default. City shall, following the demand (which shall be accompanied by appropriate supporting documentation), reimburse the Grantor for the City's share of the costs and expenses reasonably paid or incurred by Grantor in the exercise of such rights necessary to cure City's default. Amounts unpaid by City more than 45 days after such demand shall accrue interest at a rate of 10% per annum. b. Standard of Care for Self -Help. Any acts which the Grantor shall perform or cause to be performed in exercise of its self-help and cure rights under this Section 8 shall be performed with the same standards of care, diligence and workmanship as if such 01889361-1 Page 635 of 971 acts were being performed or caused to be performed by City pursuant to its obligations or duties hereunder. c. In the event of a default by City that continues beyond the notice and cure periods herein, Owner shall have the right to bring an action against City for damages or specific performance, as appropriate. 9. Estoppel Certificate. City shall, without charge, at any time, and from time to time, within ten (10) days after request therefor, certify by written instrument duly executed, acknowledged and delivered to or for the benefit of any existing or prospective tenant, buyer, or mortgagee of the Grantor Property (or any portion thereof), specify: a. That this Easement is unmodified and in full force and effect (or if there has been a modification, that the Easement is in full force and effect as modified and stating the modification); b. Whether or not there are any existing defaults under this Easement and if so, specifying such defaults; and c. Such other pertinent information as the requesting party may reasonably request. 10. Insurance. City, at its sole expense, shall maintain a reasonable program of self- insurance or shall otherwise obtain insurance coverages, as described in Exhibit "D", 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); upon Grantor's request, City shall provide to Grantor a copy of each such policy or a certificate of insurance. Furthermore, any policy of insurance maintained by City in connection with the Easement 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 the City's election to self -insure as to any risks in connection with the Easement Property) limit the liability of City under this Easement. 11. Miscellaneous. a. The intended and primary use of the Easement Property is to provide parking for City employees, City invitees, and the general public, and such use will have priority over other uses unless a like number and quality of alternative parking is provided at a location reasonably agreed to by the City in accordance with the terms of this Easement. The exercise of the rights and privileges granted hereby shall be exercised in a manner which does not unreasonably interfere with or disrupt the normal use, business or occupation of the Project or any improvements located or to be located on the Grantor Property or the Easement Property. 01889361-1 Page 636 of 971 b. All provisions of this Easement and the easement rights hereunder shall run with the land and shall be binding upon Grantor and its successors and assigns. The Grantor Property shall hereafter be held, sold, conveyed, operated and leased subject to the easements, restrictions, covenants and conditions contained in this Easement. c. All notices, demands, requests or other communications required hereunder shall be in writing and sent by recognized express courier (such as FedEx or United Parcel Service) or via United States registered, certified mail, postage prepaid, return receipt requested, addressed to each party hereto, as the case may be, at the address first hereinabove provided or such other address as any party may from time to time designate in writing to the other. d. This Easement shall be governed by and construed in accordance with the laws of the State of Florida. Venue of any litigation or administrative proceeding shall be exclusively in Palm Beach County, Florida. The prevailing party in any litigation arising from the terms of this Easement shall be entitled to recover its reasonable attorneys' fees, both at trial and on appeal, as well as court costs, from the non - prevailing party. e. The captions used in this Easement are solely for the convenience of reference and shall not in any way limit or amplify the terms and provisions hereof. f. This Easement may be executed in counterparts, each of which will be deemed an original as against any party whose signature appears hereon, and all of which shall constitute one and the same agreement. g. This Easement may not be terminated, modified or amended except as provided herein or as otherwise agreed to in a written document executed by the parties hereto or their respective successors in interest. h. Any invalidity of any of the terms and conditions or provision of this Easement by judgment, court order or otherwise shall not affect any of the other terms, conditions or provisions of this Easement. i. A like Easement Agreement will be executed contemporaneously with this Agreement by the parties to address additional temporary parking on the North Parcel. j. City shall not be liable or responsible to Grantor beyond the monetary limits specified in Ch. 768.28, Fla. Stat., regardless of whether said liability be based in tort, contract, indemnity or otherwise; and in no event shall City be liable to Grantor for punitive or exemplary damages or for lost profits or consequential damages. k. City and Grantor hereby acknowledge and confirm that the Existing Temporary Parking Easements shall be terminated and become null and void and of no further force or effect simultaneous with the Effective Date. 01889361-1 Page 637 of 971 [SIGNATURES AND ACKNOWLEDGEMENTS APPEAR ON THE FOLLOWING PAGES] 01889361-1 Page 638 of 971 IN WITNESS WHEREOF the parties hereto have caused these presents to be executed. CITY OF BOYNTON BEACH ATTEST: Un City Clerk Mayor, Ty Penserga Address: Witness: Printed Name: APPROVED AS TO FORM: City Attorney STATE OF FLORIDA } COUNTY OF PALM BEACH } The foregoing instrument was acknowledged before me this day of , 2022, by , as Mayor of the CITY OF BOYNTON BEACH, a municipal corporation of the State of Florida. He/she appeared before me ❑ in person or ❑ electronically and is personally known to me or has produced as identification. Commission Expires: 01889361-1 Page 639 of 971 Signed, sealed and delivered: DEVELOPER: BOYNTON BEACH TOWN CENTER APARTMENTS, LLC, a Florida limited liablity company Witness: By: Printed Name: Witness Dated: Printed Name: STATE OF ) SS COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2022, by of BOYNTON BEACH TOWN CENTER APARTMENTS, LLC, a Florida limited liablity company. He or she is appeared before me ❑ in person or ❑ electronically and is: [ ] personally known to me, or [ ] produced identification. Type of identification produced (Seal) My commission expires: 01889361-1 NOTARY PUBLIC: Print Name: Page 640 of 971 EXHIBIT "A" LEGAL DESCRIPTION OF GRANTOR PROPERTY Parcel 2, Boynton Beach Town Square, according to the plat thereof as recorded in Plat Book 127, Page 1, Public Records of Palm Beach County, Florida. 01889361-1 Page 641 of 971 EXHIBIT "B" LEGAL DESCRIPTION OF SOUTH PARCEL Parcel 7, Boynton Beach Town Square, according to the plat thereof as recorded in Plat Book 127, Page 1, Public Records of Palm Beach County, Florida. 01889361-1 Page 642 of 971 EXHIBIT "C" LEGAL DESCRIPTION OF EASEMENT PROPERTY Parcel 3, Boynton Beach Town Square, according to the plat thereof as recorded in Plat Book 127, Page 1, Public Records of Palm Beach County, Florida. 01889361-1 Page 643 of 971 EXHIBIT "D" Insurance Coverage Automobile Liabili Bodily injury and property damage liability covering all owned, non -owned and hired automobiles for limits of not less than $500,000 bodily injury each person, each accident and $500,000 property damage, or $500,000 combined single limit each occurrence/aggregate. Commercial General Liability Bodily injury and property damage liability as shall protect the City or Grantor from claims of bodily injury or property damage which arise from the use of the Easement. The amounts of such insurance shall be $2,000,000 per person, $2,000,000 per occurrence, and a general aggregate limit of $5,000,000.00. This insurance shall include coverage for products/completed operation, personal injury liability and contractual liability assumed under the indemnity provision of this Easement. Workers' Compensation Insurance Meeting the statutory requirements of Florida and Employer Liability of $1,000,000 per accident limit, $1,000,000 disease per policy limit, $1,000,000 disease each employee limit, providing coverage for employees and owners. Professional Liability Insurance In an amount of not less than $2,000,000 each claim and $2,000,000 aggregate. 01889361-1 Page 644 of 971 TEMPORARY PARKING EASEMENT AGREEMENT (NORTH PARCEL) THIS TEMPORARY PARKING EASEMENT AGREEMENT (this "Easement") is made and executed as of , 2023, by and between Boynton Beach Town Center Apartments, LLC, a Florida limited liability company, C/O Time Equities, Inc. 55 Fifth Avenue, 15th Floor New York, NY 10003 ("Grantor") and The City of Boynton Beach, Florida, a political subdivision of the State of Florida, 100 East Ocean Avenue, Boynton Beach, FL 33435 ("City"). WITNESSETH: WHEREAS, Grantor and the City are entering into a Development Agreement ("Development Agreement") on a date even with the Effective Date (defined below), and Grantor is, or shall be on the Effective Date, the owner of certain property located in Boynton Beach, Palm Beach County, Florida described on Exhibit "A" attached hereto and made a part hereof (the "Grantor Property"); and WHEREAS, as of the date first mentioned above, the City is the beneficiary of certain recorded Temporary Parking Easement Agreements with JKM BTS Central, LLC, JKM BTS Capital, LLC, and JKM BTS North, LLC, (collectively, "JKM") recorded in Palm Beach County Official Record Book 31962, Page 1449 and Book 31962, Page 1434 (together, the "Existing Temporary Parking Easements"); and WHEREAS, Grantor intends to purchase the Grantor Property from JKM; and WHEREAS, it is the desire of Grantor and the City to terminate the Existing Temporary Parking Easements and simultaneously enter into this Easement, and enter into a like easement on certain other property known as the "Central Parcel"; and WHEREAS, the Grantor Property is the subject of a Development Agreement which contemplates development of a mixed-use project, together with a parking structure (the "Project"), and which, once constructed, is intended to be occupied by tenants to reside or conduct business therein and shall provide permanent parking to the City therein pursuant to a separate continuing parking lease agreement; WHEREAS, the temporary parking spaces provided by this Easement, along with a like easement with Grantor over the Central Parcel, are intended to satisfy the temporary parking which Grantor may hereafter be required to provide to the City with respect to the parking structure (the "North Garage") contemplated for construction upon certain property located in Boynton Beach, Palm Beach County, Florida described on Exhibit "B" attached hereto and made a part hereof (the "North Parcel") pursuant to the Development Agreement, 01889329-1 Page 645 of 971 without releasing or modifying any of Grantor's other contingent obligations to provide temporary parking as referenced therein; and WHEREAS, Grantor desires to establish, create and grant for the benefit of, and as a burden upon, the Grantor Property, a temporary exclusive easement for use by City over and across the portion of the Grantor Property as described in Exhibit "C" attached hereto and made a part hereof (the "Easement Property") for the purposes and upon the terms and conditions as set forth herein, for the benefit of City; the Easement Property, together, if separately agreed in writing by City and Grantor, with an easement across adjacent property owned by another affiliate of Grantor (the "Adjacent Property") or any alternative parking arranged at another location (any such location or locations, collectively, "Alternative Property") by Grantor with the consent of City (which consent shall not be unreasonably withheld), is intended to provide at least 198 parking spaces for use by the City as set forth in this Easement; and NOW, THEREFORE, in consideration of the mutual covenants and agreements heretofore made, and in satisfaction of the requirement to provide temporary parking under the Development Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties hereto, Grantor and City hereby agree as follows: 1. Recitals. The foregoing recitals are true and correct and are hereby incorporated into this Easement by reference in their entirety. 2. Parking Easement. a. Parking Easement. Grantor hereby establishes, creates and grants to the City a temporary, exclusive easement for parking on the parking areas constructed and existing from time to time within the Easement Property and for the existing road and driveway used to access the parking areas (the "Parking Easement"). Grantor establishes, creates and grants the Parking Easement for City to use, without payment of any fee or charge, the Easement Property for the intended purposes as set forth in this Easement. For the avoidance of doubt, the Parking Easement only includes the Easement Property and does not include any right to use or enter upon any portion of the Grantor Property outside of the Easement Property. This Easement shall become effective upon the execution of this Easement by both parties and Grantor's closing on the Grantor Property ("Effective Date"). This Easement shall be recorded in the Public Records of Palm Beach County, Florida. b. Right to Modify, Remove or Relocate Parking Easements. Grantor shall have the right, at any time and from time to time, upon 90 days prior written notice to City, to modify, remove and relocate all or any portion of the Parking Easement described herein to another location, with the consent of the City (which consent shall not be unreasonably withheld, conditioned, or delayed), within the Grantor Property (or to an Alternative Property owned by Grantor or 01889329-1 Page 646 of 971 to an Alternative Property procured via acquisition, lease, or other possessory interest by Grantor), provided in all events that the City is provided the use of at least 300 spaces when taking into account spaces provided by or procured by Grantor or its affiliates at the Grantor Property, the Adjacent Property, and any Alternative Property. For purposes of this Easement, it is anticipated that in the event a modification, removal, or relocation of the Parking Easement results in the parking area being located more than .25 miles from the entrance to City Hall (measured from the point in the parking area closest to City Hall to the entrance doorway to City Hall), the City may condition its consent for such modification, removal, or relocation on Grantor's provision of shuttle service from the parking area to City Hall. c. Termination. The Parking Easement shall be terminated, upon at least ten (10) business days prior written notice, at such time construction of the North Garage is complete and a certificate of occupancy (or equivalent certification) has been issued for the same, or at such time as Grantor shall have provided (either itself, through one of its affiliates, or through a third party) alternative parking arrangements consented to by the City (which consent shall not be unreasonably withheld) until such time as the North Garage can be completed. Following termination of the Parking Easement and provided alternative parking has been provided subject to terms and conditions reasonably comparable to those set forth in this Easement, City shall cease using the Easement Property for parking, and the City will enter into an agreement terminating this Easement and all rights hereunder. d. No Assignment or Transfer. The Parking Easement may not be assigned or transferred by City. Any attempted assignment or transfer of the Parking Easement or any rights granted herein shall be null and void and shall be deemed a violation of the Parking Easement. Grantor may assign this Easement to its affiliate without City's consent, provided that Grantor shall provide City not less than 30 days' advance written notice of such assignment, provided such assignment is for the whole of this Easement. 3. Prohibited Use. The intended use of the Easement Property is for parking of typical passenger vehicles by City employees, their invitees, and the general public in connection with business with the City or attending civic events; for the avoidance of doubt, the City shall not use or park any heavy equipment, buses, recreational vehicles, or other oversized vehicles within the Easement Property. The City will use its best efforts to prohibit or limit any use not consistent with the intended use. The City will not use the Easement Property to stage any civic or social events, City shall be prohibited from using the Easement Property in violation of any law or for any purpose other than use of the Parking Easement. The City will establish and enforce reasonable restrictions assure that minors less than 12 years of age are permitted on the easement property only when accompanied by an adult and that animals are prohibited on the easement property except when on leash or other physical halter. The City will mark or sign the walkways from the parking lots to City facilities to enhance safety and minimize foot -traffic movement onto adjacent Grantor properties. Subject to applicable governmental requirements and approvals, and with the consent of City (which consent shall 01889329-1 Page 647 of 971 not be unreasonably withheld), Grantor may post signs on the Grantor Property and/or the Easement Property setting forth the rules and restrictions for the use of the Easement Property consistent with the terms of this Easement, and the prohibition of use of portions of the Grantor Property other than the Easement Property. 4. Use by Grantor. Grantor may continue to use the Easement Property and all other portions of the Grantor Property for any lawful purposes that do not unreasonably interfere with the easement rights granted herein, including the right to improve the easement areas, which improvements may include parking, paving, sidewalks, lighting, landscaping, green spaces, recreational areas, drive aisles for motor -vehicles, and construction of the Project (including, without limitation, installation of staging areas). City shall not interfere in any manner with Grantor's operations and activities upon the Easement Property. 5. Maintenance. a. Definition of Maintenance Obligations. The term "Maintenance Obligations" means any and all obligations to maintain, safeguard, upkeep, operate, repair, replace and remove the parking areas so that the Easement Property and the Grantor Property remain reasonably safe for the parking of vehicles and the access to such vehicles by their operators. b. City Duties. The City will keep the parking area free of debris. The City is responsible for the repair of any damage caused by the storage or operation of City heavy equipment, buses, recreational vehicles, or other oversized vehicles on the Easement Property. c. No City Duty. The City has no duty to remove or pay for removal of the temporary parking improvements when the temporary use ends. d. Performance. Subject to Sections 5(a) and (b), Grantor shall be responsible to perform all Maintenance Obligations as reasonably necessary and reasonably required hereby on or at the Easement Property. e. Standard of Care. To the extent required to be performed by each of the parties hereto as set forth in this Easement, all Maintenance Obligations shall be performed in a good and workmanlike manner, and in compliance in all respects with all applicable laws, rules, regulations and ordinances of all governmental authorities having jurisdiction over the Grantor Property or the Easement Property. 6. No Duties of Grantor. Grantor and its members, managers, lenders (including any lender with a mortgage upon the Grantor Property), attorneys, employees, and agents (together, the "Grantor Parties") shall not have any duty to City whatsoever with respect to the Parking Easement or the Easement Property, including no duty to provide to City any services whatsoever, except infrastructure maintenance as required by, and subject to those limitations set forth in, Section 5 and any conditions imposed by the City in exchange for the City's consent to modify, remove, or relocate the Parking Easement. Furthermore, Grantor Parties shall not have any duty to City or any of City's employees, agents, 01889329-1 Page 648 of 971 contractors, guests, or invitees to provide security or to monitor the Grantor Property or the Easement Property in order to protect against injury to any person or to safeguard or protect any vehicles or personal property of any such parties. Grantor shall not have any liability whatsoever for any injury to any person or for any lost, stolen, or damaged property to City or any of City's employees, agents, contractors, guests, or invitees. City and City's employees, agents, contractors, guests, and invitees assume all risk of injury to any person and loss (including, but not limited to theft) and damage to any of their respective vehicles or other personal property, and City, on its own behalf and on behalf of City's employees, agents, contractors, guests, or invitees, agrees to hold Grantor harmless from and against any and all damages in connection with the Parking Easement including, but not limited to, consequential damages, arising with respect to the matters set forth in this Easement. Grantor Parties shall not have any obligation to assist (or to cause their employees or agents to assist) City in collecting and/or removing any vehicles or personal property of City or other Party from the Easement Property after the Parking Easement has been terminated. Any vehicles or personal property left on the Easement Property after termination of the Parking Easement shall be deemed to have been abandoned, and Grantor may remove any such vehicles or personal property from the Easement Property without any obligation to account to City or any other party with respect thereto. 7. Indemnification. City agrees to indemnify and hold harmless Grantor Parties from and against any damage, cost, or liability to the Grantor Parties or the Grantor Parties' property (including the Grantor Property) caused by the use of the Parking Easement granted herein or the exercise of any rights granted in connection with the Parking Easement, unless such damage, cost or expense was caused by a failure of Grantor to maintain the infrastructure as required by Section 5 or the negligence or willful misconduct of the Grantor Party. Nothing in this paragraph shall be interpreted as a waiver of City's sovereign immunity or the limitations of liability set forth in Sec. 768.28, Florida Statutes. 8. Default. a. Default. If City shall be in default under any of the obligations applicable to it as set forth in this Easement for 72 hours after receipt of written notice of default (or such lesser time in the event of an emergency) given by Grantor, or if such default shall be of such a nature that the same cannot practicably be cured within such 72 hour period and City shall not within such period commence the curing of such default and thereafter with due diligence complete the curing of such default, then Grantor may take appropriate steps to cure such default. City shall, following the demand (which shall be accompanied by appropriate supporting documentation), reimburse the Grantor for the City's share of the costs and expenses reasonably paid or incurred by Grantor in the exercise of such rights necessary to cure City's default. Amounts unpaid by City more than 45 days after such demand shall accrue interest at a rate of 10% per annum. b. Standard of Care for Self -Help. Any acts which the Grantor shall perform or cause to be performed in exercise of its self-help and cure rights under this Section 8 shall be performed with the same standards of care, diligence and workmanship as if such 01889329-1 Page 649 of 971 acts were being performed or caused to be performed by City pursuant to its obligations or duties hereunder. c. In the event of a default by City that continues beyond the notice and cure periods herein, Owner shall have the right to bring an action against City for damages or specific performance, as appropriate. 9. Estoppel Certificate. City shall, without charge, at any time, and from time to time, within ten (10) days after request therefor, certify by written instrument duly executed, acknowledged and delivered to or for the benefit of any existing or prospective tenant, buyer, or mortgagee of the Grantor Property (or any portion thereof), specify: a. That this Easement is unmodified and in full force and effect (or if there has been a modification, that the Easement is in full force and effect as modified and stating the modification); b. Whether or not there are any existing defaults under this Easement and if so, specifying such defaults; and c. Such other pertinent information as the requesting party may reasonably request. 10. Insurance. City, at its sole expense, shall maintain a reasonable program of self- insurance or shall otherwise obtain insurance coverages, as described in Exhibit "D", 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); upon Grantor's request, City shall provide to Grantor a copy of each such policy or a certificate of insurance. Furthermore, any policy of insurance maintained by City in connection with the Easement 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 the City's election to self -insure as to any risks in connection with the Easement Property) limit the liability of City under this Easement. 11. Miscellaneous. a. The intended and primary use of the Easement Property is to provide parking for City employees, City invitees, and the general public, and such use will have priority over other uses unless a like number and quality of alternative parking is provided at a location reasonably agreed to by the City in accordance with the terms of this Easement. The exercise of the rights and privileges granted hereby shall be exercised in a manner which does not unreasonably interfere with or disrupt the normal use, business or occupation of the Project or any improvements located or to be located on the Grantor Property or the Easement Property. 01889329-1 Page 650 of 971 b. All provisions of this Easement and the easement rights hereunder shall run with the land and shall be binding upon Grantor and its successors and assigns. The Grantor Property shall hereafter be held, sold, conveyed, operated and leased subject to the easements, restrictions, covenants and conditions contained in this Easement. c. All notices, demands, requests or other communications required hereunder shall be in writing and sent by recognized express courier (such as FedEx or United Parcel Service) or via United States registered, certified mail, postage prepaid, return receipt requested, addressed to each party hereto, as the case may be, at the address first hereinabove provided or such other address as any party may from time to time designate in writing to the other. d. This Easement shall be governed by and construed in accordance with the laws of the State of Florida. Venue of any litigation or administrative proceeding shall be exclusively in Palm Beach County, Florida. The prevailing party in any litigation arising from the terms of this Easement shall be entitled to recover its reasonable attorneys' fees, both at trial and on appeal, as well as court costs, from the non - prevailing party. e. The captions used in this Easement are solely for the convenience of reference and shall not in any way limit or amplify the terms and provisions hereof. f. This Easement may be executed in counterparts, each of which will be deemed an original as against any party whose signature appears hereon, and all of which shall constitute one and the same agreement. g. This Easement may not be terminated, modified or amended except as provided herein or as otherwise agreed to in a written document executed by the parties hereto or their respective successors in interest. h. Any invalidity of any of the terms and conditions or provision of this Easement by judgment, court order or otherwise shall not affect any of the other terms, conditions or provisions of this Easement. i. A like Easement Agreement will be executed contemporaneously with this Agreement by the parties to address additional temporary parking on the Central Parcel. j. City shall not be liable or responsible to Grantor beyond the monetary limits specified in Ch. 768.28, Fla. Stat., regardless of whether said liability be based in tort, contract, indemnity or otherwise; and in no event shall City be liable to Grantor for punitive or exemplary damages or for lost profits or consequential damages. k. City and Grantor hereby acknowledge and confirm that the Existing Temporary Parking Easements shall be terminated and become null and void and of no further force or effect simultaneous with the Effective Date. 01889329-1 Page 651 of 971 [SIGNATURES AND ACKNOWLEDGEMENTS APPEAR ON THE FOLLOWING PAGES] 01889329-1 Page 652 of 971 IN WITNESS WHEREOF the parties hereto have caused these presents to be executed. CITY OF BOYNTON BEACH ATTEST: Un City Clerk Mayor, Ty Penserga Address: Witness: Printed Name: APPROVED AS TO FORM: City Attorney STATE OF FLORIDA } COUNTY OF PALM BEACH } The foregoing instrument was acknowledged before me this day of , 2022, by , as Mayor of the CITY OF BOYNTON BEACH, a municipal corporation of the State of Florida. He/she appeared before me ❑ in person or ❑ electronically and is personally known to me or has produced as identification. Commission Expires: 01889329-1 Page 653 of 971 Signed, sealed and delivered: DEVELOPER: BOYNTON BEACH TOWN CENTER APARTMENTS, LLC, a Florida limited liablity company Witness: By: Printed Name: Witness Dated: Printed Name: STATE OF ) SS COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2022, by of BOYNTON BEACH TOWN CENTER APARTMENTS, LLC, a Florida limited liablity company. He or she is appeared before me ❑ in person or ❑ electronically and is: [ ] personally known to me, or [ ] produced identification. Type of identification produced (Seal) My commission expires: 01889329-1 NOTARY PUBLIC: Print Name: Page 654 of 971 EXHIBIT "A" LEGAL DESCRIPTION OF GRANTOR PROPERTY Parcel 2, Boynton Beach Town Square, according to the plat thereof as recorded in Plat Book 127, Page 1, Public Records of Palm Beach County, Florida. 01889329-1 Page 655 of 971 EXHIBIT "B" LEGAL DESCRIPTION OF SOUTH PARCEL Parcel 7, Boynton Beach Town Square, according to the plat thereof as recorded in Plat Book 127, Page 1, Public Records of Palm Beach County, Florida. 01889329-1 Page 656 of 971 EXHIBIT "C" LEGAL DESCRIPTION OF EASEMENT PROPERTY A parcel of landing being a portion of Parcel 2, BOYNTON BEACH TOWN SQUARE, according to the Plat thereof as recorded in Plat Book 127, Page 1 of the Public Records of Palm Beach County, Florida. Being more particularly described as follows: Commencing at the Southwest corner of said Parcel 2; Thence North 00°20'03" West (as a basis of bearings) along the Westernmost West line of said Parcel 2, a distance of 30.30' to the POINT OF BEGINNING; Thence continue North 00° 20'03" West along said Westernmost West line, a distance of 24.00 feet; Thence North 89° 40'29" East, a distance of 29.40 feet to a point lying 5.00 feet East of and parallel with (as measured at right angles) the Easternmost West line of said Parcel 2; Thence North 00° 19'56" West along said parallel line, a distance of 262.00 feet; Thence North 89° 40'29" East, a distance of 247.13 feet; Thence North 00° 19' 31" West, a distance of 16.47 feet to a point being on the North line of said Parcel 2; Thence North 89° 16'40" East along said North line, a distance of 33.45 feet; Thence South 00° 19' 31" East, a distance of 21.70 feet to the point of curvature of a circular curve to the right; Thence Southerly and Westerly along the arc of said curve having a radius of 40.00 feet, a central angle of 67°19'05, for a distance of 47.00 feet; Thence South 00° 19'56" East, a distance of 220.09 feet; Thence North 89° 40'29" East, a distance of 161.08 feet to a point being on the East line of said Parcel 2; Thence South 01° 22'45" East along said East line, a distance of 24.00 feet; Thence South 89° 40'29" West, a distance of 15.11 feet; Thence South 00° 20'03" East, a distance of 20.37 feet; Thence South 89° 39'57" West a distance of 56.71 feet; Thence South 00° 20'03" East, a distance of 9.86 feet; Thence South 89° 39'57" West, a distance of 71.32 feet; Note: The proceeding three courses and distance coinciding with the Southern limits of said Parcel 2; Thence North 00° 20'03" West, a distance of 30.25 feet; Thence South 89° 40'29" West, a distance of 303.76 feet to the POINT OF BEGINNING. Said lands situate, lying and being Section 28, Township 45 South, Range 43 East, City of Boynton Beach, Palm Beach County, Florida. Containing 1.89 acres more or less. 01889329-1 Page 657 of 971 EXHIBIT "D" Insurance Coverage Automobile Liabili Bodily injury and property damage liability covering all owned, non -owned and hired automobiles for limits of not less than $500,000 bodily injury each person, each accident and $500,000 property damage, or $500,000 combined single limit each occurrence/aggregate. Commercial General Liability Bodily injury and property damage liability as shall protect the City or Grantor from claims of bodily injury or property damage which arise from the use of the Easement. The amounts of such insurance shall be $2,000,000 per person, $2,000,000 per occurrence, and a general aggregate limit of $5,000,000.00. This insurance shall include coverage for products/completed operation, personal injury liability and contractual liability assumed under the indemnity provision of this Easement. Workers' Compensation Insurance Meeting the statutory requirements of Florida and Employer Liability of $1,000,000 per accident limit, $1,000,000 disease per policy limit, $1,000,000 disease each employee limit, providing coverage for employees and owners. Professional Liability Insurance In an amount of not less than $2,000,000 each claim and $2,000,000 aggregate. 01889329-1 Page 658 of 971 01889367-1 COMPOSITE EXHIBIT G Continuing Parking Lease Agreements -32- Page 659 of 971 PARKING LEASE AGREEMENT North Garage THIS PARKING LEASE AGREEMENT (the "Agreement") is entered into this day of 2023, by and between BOYNTON BEACH TOWN CENTER APARTMENTS, LLC, a Florida limited liability company ("Owner"), and CITY OF BOYNTON BEACH ("City"). WITNESSETH: WHEREAS, Owner owns certain real property in Boynton Beach, Florida, as more particularly depicted on the attached Exhibit "A" (collectively, "Property"), together with all rights, easements and appurtenances belonging or in any way pertaining thereto, and all improvements to be constructed thereon, including without limitation certain buildings, and a parking garage commonly known Garage North (the "Garage"); WHEREAS, Owner, itself or through an affiliate thereof, and City have entered into a Development Agreement of even date herewith (the "Development Agreement") governing, among other things, development of the Garage, and Owner's obligations to commence construction thereunder; and WHEREAS, pursuant to the Development Agreement and that certain City -approved master plan attached hereto as Exhibit `B" (the "Master Plan"), the Garage contemplated for construction on the Property is anticipated to contain a total of approximately 1026 parking spaces; and WHEREAS, pursuant to that certain Parking Allocation attached hereto as Exhibit "C" ("Parking Allocation"), the approximately 1026 parking spaces in the Garage shall be allocated as follows: a. 237 parking spaces which are being leased by Owner to City pursuant and subject to the terms and conditions in this Agreement (the "City Spaces"). b. 789 parking spaces which are not being leased to City and are reserved by Owner for the exclusive use of its residential and commercial tenants, as depicted in the Parking Allocation as "Residential and Guest" and "Commercial" (together the "Owner Controlled Spaces"; the City Spaces and the Owner Controlled Spaces are referred to hereinafter together as "All Spaces"); and WHEREAS, Owner desires to lease the City Spaces to City, upon the terms and conditions set forth herein; and WHEREAS, once constructed, the Garage will provide required parking for certain City buildings and facilities; 01888887-5 52983123_1 Page 660 of 971 WHEREAS, pursuant to the Master Plan, Owner plans to construct a second parking garage ("South Garage"); and WHEREAS, simultaneous with the execution of this Agreement the parties intend to execute a substantially similar parking lease agreement for parking spaces in the South Garage; NOW, THEREFORE, in consideration of their mutual promises, covenants and intending to be legally bound, the parties hereto agree as follows: 1. Recitals. The foregoing recitals are true and correct and are incorporated herein by reference. 2. Construction of Garage. The Garage will be constructed pursuant to the terms and conditions of the Master Plan and the Development Agreement and any development orders issued for the Garage. 3. Lease of City Spaces. Owner hereby leases to City and City hereby leases from Owner, pursuant and subject to the terms and conditions of this Agreement, the City Spaces, together with the nonexclusive use, in common with others entitled thereto, of the Common Areas, for the purpose of accessing and using the City Spaces. As constructed and installed, the City Spaces shall be located within the areas designated as the City Spaces in the site plan to be submitted to City for its approval, provided that such spaces shall be on the same levels of the Garage as depicted on the drawing attached hereto as Exhibit "D" (the remaining levels of the Garage being reserved for the Owner Controlled Spaces). The parties understand that the attached Exhibit "D" is for illustrative purposes only, remains subject to site plan review, and nothing in this Agreement shall be deemed a site plan approval or relieve Owner of its obligations to obtain the same. Notwithstanding illustrative nature of Exhibit "D," the 237 City Spaces shall be as follows, subject to the terms herein: a. 192 parking spaces shall be designated "Exclusive City Spaces," which shall be for the exclusive use of the City 24 hours a day, 7 days a week. The Exclusive City Spaces shall be located no higher in the Garage than the ramp located between the mezzanine and second level of the Garage. No more than 10% of the Exclusive Parking Spaces may be compact spaces and no more than 1% of the Exclusive Parking Spaces may be motorcycle spaces. b. 45 City Spaces shall be designated "Nonexclusive City Spaces," which shall be for the exclusive use of the City between the hours of 7:30 am to 6:30 pm, Monday through Friday (the "City Control Hours"). Except during the City Control Hours, Owner may utilize the Nonexclusive City Spaces for other parking purposes, including commercial parking and residential parking; provided however, that Owner's use of the Nonexclusive Parking Spaces shall not be counted towards required parking for Owner's residential and commercial tenants for site planning purposes. No more than 10% of the Nonexclusive Parking Spaces may be compact spaces and no more than 1% of the Nonexclusive Parking Spaces may be motorcycle spaces. 01888887-5 52983123_1 2 Page 661 of 971 c. During the site planning process, the parties may agree to swap the location of a portion of the City Spaces with certain of those spaces depicted as "commercial spaces" on Exhibit "D." 4. Owner Controlled Spaces. Owner shall have the absolute right to use and control the Owner Controlled Spaces for the purpose of providing parking for its residential and commercial tenants on an exclusive basis, pursuant to rules and regulations binding such tenants as determined by Owner from time to time in its sole discretion, notwithstanding anything in this Agreement to the contrary (provided such rules and regulations shall not materially affect the use of or access to the City Spaces and are in compliance with all applicable city, state, and federal ordinances, laws, rules, and regulations). Further, Owner shall have the right to install a gate or other mechanism within the Garage, to be installed, modified, replaced, repaired and maintained at Owner's sole cost, which shall restrict access to the Owner Controlled Spaces as deemed appropriate by Owner in its sole and absolute discretion (the "Gate"); it being understood and agreed that the Owner Controlled Spaces are intended and reserved exclusively for the use and enjoyment of Owner's tenants, are not being leased to City, and City shall have no rights (possessory or otherwise) with respect thereto (except to enforce Owner's express obligations hereunder if necessary). Notwithstanding the foregoing, Owner's installation, maintenance, modification, replacement and repair of the Gate shall not materially interfere with City's and the public's use of the City Spaces, and all such work shall be performed in accordance with all Legal Requirements. In the event that City and Owner later agree that certain City Spaces may be located behind a Gate, such agreement shall be expressly conditioned on the understanding that the Owner may not deny the City (or City's designee, if any) access to the City Spaces behind the Gate for any reason whatsoever (it being understood that such City Spaces may be located behind the Gate, but the City (or its designee) shall at all times have continuous and uninterrupted access (via a gate fob, "clicker" or otherwise) through the Gate to and from such City Spaces). Additionally, Owner shall have the right, from time to time, alter or modify the use, design or structure (or any combination thereof) of that portion of the Garage comprising the Owner Controlled Spaces and the Common Area appurtenant thereto (the "Owner Alteration"), provided (i) Owner obtains all necessary permits and approvals for the applicable governmental authorities, (ii) the Owner Alteration, including alteration of the Common Areas appurtenant to such Owner Controlled Spaces, shall not disturb the City Spaces or the use thereof (as permitted in this Agreement). 5. Management of Garage. Owner, itself or through an affiliate or management company designated by Owner in its sole discretion, shall operate and maintain the Garage as a first-class facility and shall, in such capacity, among other things, assess City its Proportionate Share of Operating Expenses pursuant to Section 9 below. Notwithstanding the foregoing, however, if any portion of the City Spaces (or the Common Areas appurtenant thereto) are subject to any interference, action, condition, material waste or damage not caused solely by Owner, its agents, contractors, tenants or designees and which, in Owner's reasonable discretion, (i) impedes or restricts access to the Common Areas and/or Owner Controlled Spaces (ii) creates a visual, audial or other nuisance, (iii) violates any applicable laws or codes which violations can be lawfully remediated by Owner, (iv) violates the any of the Rules and Regulations (defined below) or (v) otherwise causes the Garage to be less than a "first-class" facility (any of the foregoing, a "Violation"), then Owner shall have the right to tow or boot vehicles, perform extra cleaning or 01888887-5 52983123_1 3 Page 662 of 971 maintenance, contact the appropriate authorities, replace or repair damage or take such other action as Owner reasonably believes is necessary to remedy such violation and City shall reimburse Owner's actual charges therefor within forty-five (45) days of delivery of an invoice with reasonable detail. Reimbursement for any such Violation shall be in addition to any Operating Expenses for which City is otherwise responsible. Owner shall have the right, but not the obligation, to create reasonable rules and regulations for use of the Garage ("Rules and Regulations") which shall be uniformly applied in a non-discriminatory manner and shall be effective upon delivery of a copy thereof to City; provided however, that any such Rules and Regulations shall not impede or disrupt the City's rights under this Agreement (including the City's rights to use and access the City Spaces), and including the right to park vehicles in the Exclusive City Spaces during hurricanes or other natural disasters. The Owner shall operate the Garage in compliance with all applicable 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 Garage is located. Owner shall comply with all such laws, ordinances, regulations, codes and orders now in effect or hereafter enacted or passed during the Term. 6. Term and Commencement of Term. This Agreement shall be in full force and effect from the date of the issuance of the final Certificate of Occupancy (or equivalent certification) for the Garage ("Effective Date"). The term of the Agreement ("Term") shall commence on the date first written above. Unless sooner terminated pursuant to the terms of this Agreement, the Term shall continue from the Commencement Date for aperiod of one hundred (100) years and shall terminate at midnight on the last day of the one hundredth (100th) Lease Year (as hereinafter defined) ("Expiration Date"). 7. Rent and Expenses. (a) Pursuant to the Development Agreement, City has provided consideration to Owner for the use of the City Spaces for the Term set forth herein, the sufficiency of which Owner hereby acknowledges. (b) The City shall pay its Proportionate Share of the Operating Expenses (as defined in Section 9) related to the maintenance and operation of the Garage. 8. Sales Tax Exemption. Notwithstanding anything to the contrary set forth in this Agreement, so long as City obtains and provides a true, correct, and complete copy of a sales tax exemption certificate, issued by the Florida Department of Revenue to Owner contemporaneously with City's execution and delivery of this Agreement, City shall be exempted from paying sales tax (from which it is so exempt) under this Agreement. City shall, not later than thirty (30) days before the end of each calendar year throughout the Term provide to Owner an updated sales tax exemption certificate from the Florida Department of Revenue to establish City's exemption from sales tax for the upcoming year. In the event that, at any time during the Term, City no longer holds a valid sales tax exemption certificate from the Florida Department of Revenue or it is determined by the Florida Department of Revenue that sales tax is otherwise due on the amounts payable by City under this Agreement for any reason whatsoever, then City shall be liable for all sales taxes due under this Agreement and shall promptly remit same to Owner. City may, upon written notice to Owner, request that Owner contest any such taxes, assessments and other charges that City reasonably determines, in its good faith judgment, are not appropriate or applicable. Owner may elect, but shall 01888887-5 52983123_1 M Page 663 of 971 not be obligated, to accept any request by City to contest such taxes, assessments and/or other charges. In the event Owner elects to accept City's request, City shall reimburse Owner for all actual costs and expenses incurred by Owner in connection with contesting such taxes, assessments and/or other charges on City's behalf (including, without limitation, reasonable attorneys' fees) within thirty (30) days of Owner's written demand therefor. Notwithstanding any pending tax or assessment contest, City shall be obligated to pay, when and as due under this Agreement, all taxes, assessments or other charges so contested. City's obligation to pay any taxes, assessments and/or other charges under this Agreement shall not be contingent upon the resolution of any such tax contest. Owner shall provide the City with a credit for all taxes, assessments and other charges which are awarded to Owner in such tax contest to the extent applicable to City's Proportionate Share. 9. Expenses. (a) Definitions. For purposes of this Agreement, the following terms shall have the meanings set forth below: (i) "City's Proportionate Share of Operating Expenses" shall be calculated as follows: the City shall be charged 100% of the Operating Expenses associated with the Exclusive City Spaces, which shall be calculated by dividing the number of Exclusive City Spaces by the number of total Garage spaces, then multiplying the resulting number by the total Operating Expenses of the Garage. The City shall also be charged 33% of the Operating Expenses associated with the Nonexclusive City Spaces, which shall be calculated by dividing the number of Nonexclusive City Spaces by the number of total Garage spaces, which resulting amount shall be multiplied by .33, which shall then be multiplied by the Operating Expenses of the Garage. The multiplier .33 is determined by dividing the number of hours the City will control the Nonexclusive City Spaces during one week by 168 and rounding to the nearest two decimal places. The Operating Expenses of the Exclusive City Spaces shall be added to the Operating Expenses of the Nonexclusive Spaces to determine the City's Proportionate Share of Operating Expenses. Figure 1, below, contains a mathematical illustration of the calculation described in this Section 9(a)(i). 01888887-5 52983123_1 k, Page 664 of 971 Figure 1: City's Proportionate Share of Operating Expenses Calculation Number of Exclusive City Spaces x Operatnng Expenses = 'Number of Total Garage Spaces Number of Nonexclusive City Spaces x .33 x Operatnng Expenses = Number of Total Garage Spaces Operating Expenses for Operating Expenses for Exclusive City Spaces � NonexcluslVe City Spaces Operating Expenses for Exclusive City Spaces Operatinug Expenses for -Nonexclusive City Spaces City s Proportionate Share of Operating Expenses At present, the parties anticipate that the City's Proportionate Share of Operating Expenses shall be 20.10% of the total Operating Expenses of the Garage. (ii) "Commencement Date" shall mean that "Commencement Date" as set forth in that certain Confirmation of Commencement Date completed and executed by City and Owner on the form attached as Exhibit "E" hereto. Upon the issuance of a final certificate of occupancy for the Garage (or upon another milestone agreed in writing by Owner and City), then Owner and City shall promptly execute the Confirmation of Commencement Date with the applicable date of issuance of such certificate of occupancy (or other agreed date) inserted as the Commencement Date. (iii) "Common Areas" shall mean all areas located within the Garage excluding the actual parking spaces comprising All Spaces. To avoid confusion, Common Areas shall include all utilities, drainage, driveways, structures, elevators, ductwork, risers, decoration (including, without limitation, artwork), landscaping, ramps and all other portions of the Garage, including, without limitation, those Common Areas which serve the Garage and/or All Spaces. (iv) "Lease Year" shall mean the following time periods: the first Lease Year shall commence upon the Commencement Date and end on December 31; and each Lease Year thereafter shall commence upon January 1 after the end of the prior Lease Year, and shall end on 01888887-5 52983123_1 6 Page 665 of 971 December 31 of that year. Any calculations based on the first Lease Year and last Lease Year shall be prorated accordingly. (v) "Operating Expenses" shall mean all costs and expenses which Owner actually incurs for operating, maintaining and repairing the Garage, the parking areas (including, without limitation, All Spaces), and the Common Areas. Operating Expenses shall include 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) market rate management fees, including, to the extent permitted under the 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, pest control, 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 Common Areas and window cleaning; (e) the cost of capital improvements to any portion of the Garage; (f) all taxes and assessments (including, without limitation, real estate taxes); (g) insurance costs; and (h) all other costs customarily treated as operating expenses or taxes in buildings of this nature. Operating Expenses do not include salary, benefits, or bonuses of Owner's employees or officers employed by Owner or any subsidiary of Owner or entity related to Owner; or other expenses not directly related to the operation of the Garage. Notwithstanding the foregoing, the City shall not be required to pay taxes and assessments from which it is lawfully exempt, and in the event Owner receives any reduction in taxes or assessments owed or paid, which reduction can be verified as resulting directly from the City's status as a governmental entity, such savings shall be passed directly on to the City. Any Operating Expenses associated solely with the Owner Controlled Spaces shall not be included in the calculation of City's Proportionate Share of Operating Expenses. (vi) Rights. City acknowledges that Owner shall have the right to install facilities within the Common Areas for the benefit of the Garage and to perform services for the benefit of the Garage, of Owner, of Owner's tenants, and of the licensees, employees, customers, visitors and invitees of the Garage, 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 Garage. Owner's costs of operating, maintaining and insuring any such facilities and providing any such services for the benefit of the Garage 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 Garage, shall be included, in proportionate share, in Operating Expenses for purposes hereof. Notwithstanding anything to the contrary in this Agreement, to the extent that any material improvements to the Garage contemplated by Owner directly affect the City Spaces or City's right to the use of the City Spaces, Owner shall be required to obtain the prior written consent of City, which consent shall not be unreasonably withheld, delayed or conditioned by City, and City shall be responsible for City's Proportionate Share of Operating Expenses with respect to such improvements. However, to the extent that any improvements to the Garage only: (A) Affect the City Spaces or City's right to the use of the City Spaces under this Agreement, City shall be solely responsible for all costs of construction, installation, maintenance, repair, and replacement of such improvements; and 01888887-5 52983123_1 7 Page 666 of 971 (B) Affect the Owner Controlled Spaces or Owner's right to the use of the Owner Controlled Spaces under this Agreement, 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 9(a)(i), the City's Proportionate Share of Operating Expenses (prorated for any partial Lease Year at the beginning or end of the Term). (c) Estimate. For each Lease Year during the Term, Owner shall supply City with an estimate of the City's Proportionate Share of Operating Expenses ("Owner's Estimated Expense Computation") for such Lease Year. City shall pay to Owner on the first day of each month during the Lease Year one -twelfth (1/12) of Owner's Estimated Expense Computation. For each Lease Year during the Term, Owner shall notify City of the actual annualized Operating Expenses for the Lease Year just concluded ("Owner's Actual Expense Computation"). Owner's Actual Expense Computation shall be prorated for any fraction of a Lease Year in which the Term begins or ends. If the Owner's Estimated Expense Computation paid by City to Owner with regard to any Lease Year is less than the Owner's Actual Expense Computation with regard to the same Lease Year, the amount of such shortfall shall be taken into account in calculating the Owner's Estimated Expense Computation for the following Lease Year (and shall thereby increase the following Lease 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 Lease Year exceeds the Owner's Actual Expense Computation with regard to the same Lease Year, the excess shall be taken into account in calculating the Owner's Estimated Expense Computation for the following Lease Year (and shall thereby decrease the following Lease Year's estimated payments by the amount of such excess). (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 Lease Year occurring during the term of the Agreement. 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 City has paid in excess of its 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 laws, codes and ordinances) 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 Garage; establish and, from time to time, change the level or grade of parking surfaces 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 City Spaces without the prior written consent of City, which consent shall not be unreasonably withheld, conditioned, or delayed. In no case shall the City Spaces 01888887-5 52983123_1 K, Page 667 of 971 be moved to a higher level than depicted on Exhibit "D" unless expressly consented to by the City in its sole discretion. (f) Demolition of Garage. After 30 years from the Effective Date, the Owner has the right to demolish the garage and construct new parking garage improvements on the Property; provided however that Owner may exercise such right only if the following conditions are met: (A) Except in cases where immediate demolition is required to protect public health or provide public safety, Owner shall provide the City at least one year's advance written notice of such demolition; (B) Owner must obtain, at its sole expense, all necessary approvals and permits; (C) Owner must, at its sole expense, provide to City parking in a substantially equivalent amount of parking spaces in an alternative location and with the same rights to use, occupy, manage, charge for (meter), and tow temporarily during the demolition and construction of the new parking garage. In the event the temporary parking provided is more than .25 miles from the entrance to City Hall, Owner shall provide, at its sole expense, shuttle service not less than once per hour and for which the average shuttle trip time does not exceed 15 minutes; and (D) Upon completion of the new parking garage, this Agreement shall remain in full force and effect and Developer and City shall recognize the new parking garage as the Garage. In the event Developer exercises its right to demolish the Garage, the City may, in its sole discretion, elect (x) to terminate this Agreement instead of accepting alternative parking arrangements, or (y) to allow the Agreement to remain in full force and effect but provide its own alternative parking arrangements, during which City shall not pay any fees or costs of any kind to Owner. 10. 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 ten (10%) per annum. If any check given to Owner for any 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. 11. Payment of Utilities. Subject to reimbursement by City as part of the Operating Expenses, Owner shall provide and pay for any electrical or other utility services required to operate the City Spaces. Owner makes no warranty or representation as to the quality or capacity of utility service to the City Spaces. 12. Use of City Spaces. (a) City shall use the City Spaces solely for the parking of motor vehicles and for no other purpose. The City may, in its sole discretion, allow the general public to park in all, some, or none of (i) the Exclusive City Spaces at all times and (ii) the Nonexclusive City Spaces only during the City Controlled Hours. 01888887-5 52983123_1 9 Page 668 of 971 (b) City acknowledges that all parking in the Garage is currently on a self -parking basis. City covenants and agrees that notwithstanding anything in Section 5 above or otherwise in this Agreement to the contrary, Owner shall have no obligation, liability, or responsibility to City should the City Spaces be occupied at any time or times by vehicles not so authorized or directed by Owner. (c) 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 City Spaces, including signage indicating that the Exclusive City Spaces are for the sole use of City, that the Nonexclusive Spaces are for the sole use of the City during the City Control Hours, 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 which shall not be unreasonably withheld, conditioned, or delayed. City, at its sole cost and expense, shall prior to installation of signage, obtain all required governmental, quasi -governmental, and other permits and approvals. (d) 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 City 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, conditioned, or delayed 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 -parry manager of the Garage at no expense to Owner or such third -parry manager; City shall be entitled to all revenue resulting from such use of the City 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, at the option of the City in its sole discretion, applied to reduce City's obligations with respect to 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. (e) City, at its sole expense, may also contract with a duly licensed towing company to service the City Spaces and to enforce the signage described in Section 12(c), 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. (f) City, at its sole expense, may also contract with a management company to operate the City Spaces or any aspect thereof, including metering, charging, maintenance, signage, and other aspects. Such manager shall reasonably coordinate with Owner and any manager employed by Owner for the operation of the Garage. This Section 12(f) shall not interfere with or 01888887-5 52983123_1 10 Page 669 of 971 reduce the Owner's rights pursuant to Sections 5 and 9 of this Agreement, including but not limited to the right to pass through to the City its proportionate share of the costs of operating the Garage. (g) City covenants that, during the Term, no part of the City Spaces shall be used in any manner whatsoever for any purposes other than as set forth in this Section 12 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 City Spaces 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 City Spaces and any signs of the City are concerned (collectively, "Legal Requirements"). (h) The City Control Hours have been determined based on the operating hours of the City's facilities. In the event the such operating hours change, the City may request that Owner agree to modify the City Control Hours accordingly, which agreement shall not be unreasonably withheld, conditioned, or delayed, and in which case the City's Proportionate Share of Operating Expenses shall be adjusted accordingly. 13. City's Insurance. City may elect to self -insure against certain risks, including certain risks related to City's rights under this Agreement and to City's occupation or use of the City Spaces. 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 (or if City later elects to obtain insurance in lieu of self-insurance, then City shall immediately notify Owner in writing of such election and provide a certificate of insurance which conforms to the requirements of this Section). 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 Garage 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 Garage 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 Garage) limit the liability of City under this Agreement. 14. Waiver of Claims. Except for claims arising from Owner's intentional or negligent acts that are not covered by City's insurance required by this Agreement, subject to applicable law, City or any party claiming through City (or both) (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 Garage; (ii) wind, rain, hurricane, flooding, fire, explosion, hail, or other 01888887-5 52983123_1 11 Page 670 of 971 casualty or act of God; and (iii) vandalism, assault, battery, malicious mischief, theft or other acts or omissions of any third parties not caused by Owner's failure to operate the Garage in all material respects as required by this Agreement. 15. 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 City Spaces 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 up to the amount specified in Section 768.28, Florida Statutes, whether such claim lie in indemnity, contract, tort, or otherwise. This Section 15 shall survive the termination of the Agreement. 16. 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 negligence or intentional misconduct by Owner or any of its employees, independent contractors, invitees, guests, or agents. This Section 16 shall survive the termination of the Agreement. 17. 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 forty-five days (45) calendar days after City receives written notice of the failure to pay after the payment is due; (b) if City attempts to transfer its rights under this Agreement without Owner's prior written consent including any attempt to assign this Agreement or sublease all or any portion of the City Spaces without Owner's prior written consent; (c) if City violates any other material term, condition, or covenant in this Agreement which is to be performed by City, and fails to remedy the same within ninety (90) 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 ninety (90) days, City shall not be in default of this Agreement if City, during said ninety (90) day period, commences to cure the default and diligently continues in good faith to cure the default until completion. 18. Remedies of Owner. 01888887-5 52983123_1 12 Page 671 of 971 (a) If any monetary Event of Default by City occurs, then, in addition to any other remedies of Owner, Owner shall have Owner shall have the right to bring an action to recover all sums due, which may include an action for revenues generated by the City Spaces (including, if necessary, court selection of a receiver) to be paid to Owner up to the amount owed. (b) 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. (c) 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 City Spaces 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. Any amounts which may be due Owner shall include any costs, expenses, or any other amounts payable pursuant to this Agreement. (d) 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 Agreement or to add City as an additional insured under a policy of Owner's as to City's rights under this Agreement, and Owner shall have the right to charge City for any amounts required to purchase such insurance (or to be reimbursed for such amounts). (e) Any and all rights, remedies and options given in this Agreement to Owner shall be cumulative and in addition to and withoutwaiver of, or in derogation of, any right or remedy under this Agreement or provided under any law now or hereafter in effect. (f) No cure periods shall apply to any emergencies or to failure to maintain and furnish insurance. (g) It is expressly understood that the remedies provided in the Event of Default by the City shall be in the form of damages or equitable relief, which may include, specific performance, and injunctive relief (it being understood monetary damages may not be a sufficient remedy for City's default hereunder), and shall not result in termination of this Agreement. 19. 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 ninety (90) 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 ninety (90) days, Owner shall not be in default of this Agreement if Owner, during such ninety (90) day period, commences to cure the default and diligently continues in good faith to cure the default until completion. 01888887-5 52983123_1 13 Page 672 of 971 20. 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, may seek damages or specific performance, which may include injunctive relief, and may exercise any right or remedy now or hereafter existing at law or in equity or by statute. 21. 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. 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. 22. No Assignment or Sublease/Change in Ownership. (a) City may not assign this Agreement in whole or in part, nor sublease all or any portion of the City Spaces, 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 City Spaces in the ordinary course, whether with or without charge, on an hourly or daily basis. The consent by Owner to any assignment or sublease shall not constitute a waiver of the necessity for such consent to any subsequent assignment or sublease. No assignment, sublease, occupancy or collection shall be deemed acceptance of the assignee, sub -lessee, or occupant, or as a release of City from the further performance by City of the covenants on the part of City herein contained. Despite Owner's consent to an assignment or sublease, 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 rent or other sums to be paid hereunder unless otherwise expressly consented to by Owner in its sole discretion. Any attempted assignment or sublease 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 City Spaces and the Property, and all right and interest of Owner in this Agreement, may be conveyed or assigned at the sole discretion of Owner at any time provided such conveyance or assignment is of the whole Agreement and the party conveyed or assigned to is recognized as Owner under this Agreement. (c) If Owner, in its sole and absolute discretion, consents to an assignment or sublease of all or any portion of the City Spaces, the form of such documents shall be as acceptable to Owner in its sole and absolute discretion. 23. Subordination and Attornment. (a) From time to time, Owner may request the City to subordinate its rights hereunder to mortgage or other method of financing or refinancing through a subordination, non- disturbance, and attomment agreement ("SNDA"). Any subordination must be effectuated through an SNDA reasonably acceptable to the City so as to ensure the City's rights under this Agreement are continued without interruption for the Term of this Agreement. So long as the above-described 01888887-5 52983123_1 14 Page 673 of 971 conditions are met and the City has adequate assurances this Agreement will not be disturbed, the City shall approve of the SNDA. So long as such request is received more than 10 days before a City Commission meeting, the SNDA shall be placed on the next City Commission agenda, and if received less than 10 days before the next City Commission meeting, shall be placed on the agenda of the next available regularly scheduled meeting. Further, the City and Owner agree to work together with reasonable diligence and in good faith to create a standard form of SNDA to expedite such requests. (b) If any proceedings are brought for the foreclosure of, or if exercise of the power of sale occurs under, any mortgage covering the City Spaces 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. 24. 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 24, execute, acknowledge and deliver to the parry 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 parry 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 parry to execute, acknowledge and deliver to the other a statement in accordance with the provisions of this Section 24 within such thirty (30) day period shall constitute an acknowledgment, by the parry 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 City Spaces or this Agreement from or through the other parry, 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 24 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. 25. Right of Entry. Owner and Owner's agents may enter the Garage at all reasonable times to examine the City Spaces (as well as other portions of the Garage), and to show the Garage to prospective purchasers, mortgagees, or other interested parties, and to make such repairs, alterations, improvements or additions as Owner may deem necessary or desirable (including, without limitation, actions taken pursuant to Section 5 or 9 above), and Owner shall be allowed to take all material into and upon the City Spaces that may be required therefor without the same constituting a termination of or infringement upon City's rights in whole or in part, provided however that should such material remain in the City Spaces more than 3 calendar days the amounts payable to Owner shall be abated in proportion to the reasonably determined loss of use and access to the City Spaces while the repairs, alterations, improvements, or additions are being made. If City shall not be present to open and permit 01888887-5 52983123_1 15 Page 674 of 971 entry into the City Spaces, 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. 26. Hazardous Materials and Environmental Laws; Indemnity. City shall not cause or permit the City Spaces 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 City Spaces 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 any activity conducted thereon, and from any use, generation, handling, storage, transportation, disposal or release of Hazardous Materials at or in connection with the Garage 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 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", "containments", or other pollution under applicable federal, state, commonwealth, 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. 27. Time of the Essence. Time is of the essence regarding the performance of every provision of this Agreement. 28. 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 (which term Owner, for the purposes of this Section 28 only includes any party with a real property interest in any portion the Property) 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 City Spaces, 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 City Spaces, 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 01888887-5 52983123_1 16 Page 675 of 971 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 City Spaces. In the event of Owner bankruptcy, all City's rights under this Agreement (including the rights of use and access to the City Spaces, and amount and timing of payment) shall be considered appurtenant to the Property for the balance of the Term and shall be considered enforceable rights but may be subject to any limitation or subordination found in any SNDA entered into pursuant to Section 23(a) above. 29. 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, OR (11) CITY'S USE OF CITY SPACES AND THE GARAGE. 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. 30. 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 30(a) or Section 30(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: Dan Dugger, City Manager 100 E. Ocean Avenue Boynton Beach, FL 33435 Email: DuggerD@bbfl.us With a copy to: Michael Cirullo, Jr. Goren Cherof Doody and Ezrol, PA 3099 East Commercial Boulevard Suite 200 Fort Lauderdale, FL 33308 MCirullo(&- wrencherof.com 01888887-5 52983123_1 17 Page 676 of 971 Kathryn Rossmell Lewis, Longman & Walker, PA 360 S. Rosemary Avenue Suite 1100 West Palm Beach, FL 33401 krossmell (r&11w-law.com If to Owner: Jerneb Acquisition Corp. I c/o Time Equities, Inc. 55 Fifth Avenue —15'h Floor New York, New York 10003 Attention: Robert Kantor and Robert Singer Email: rkantor(r&timeequities.com rsing er &timeecluities.com With a copy to: Mark J. Lynn, Esq. Greenspoon Marder LLP 200 E. Broward Boulevard Suite 1800 Fort Lauderdale, FL 33301 e-mail: mark. lynn2gmlaw.com 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. 31. 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 City Spaces 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 City Spaces except as herein expressly set forth, and all representations, either oral or written, shall be deemed to be merged into this Agreement. Except 01888887-5 52983123_1 18 Page 677 of 971 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 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 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) 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. 01888887-5 52983123_1 19 Page 678 of 971 (h) 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, shall be brought exclusively in the courts of Palm Beach County, Florida. (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. Except as expressly provided herein, 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 rights of sovereign immunity or extend the City's liability beyond the limits established in Section 768.28 of the Florida Statutes, as it may be amended from time to time. Nothing in this Agreement shall be deemed a waiver of the City's rights of sovereign immunity, and in no case shall the City's liability exceed the amount specified in Section 768.28, Florida Statutes, whether such claim lie in indemnity, contract, tort, or otherwise. (o) Recorded Document. The City shall record this Agreement or a memorandum thereof in the Public Records of Palm Beach County, Florida. 01888887-5 52983123_1 [SIGNATURES ON FOLLOWING PAGE] 20 Page 679 of 971 This Parking Lease Agreement is entered into and acknowledged by City and Owner as of the date first stated above. Approved for Form by City Attorney 01888887-5 52983123_1 21 CITY: CITY OF BOYNTON BEACH Ty Penserga, Mayor Page 680 of 971 WITNESSES: Print Name: Print Name: 01888887-5 52983123_1 22 OWNER: BOYNTON BEACH TOWN CENTER APARTMENTS, LLC, a Florida limited liability company By: Name: Title: Page 681 of 971 EXHIBIT "A" THE PROPERTY Parcel 1, Boynton Beach Town Square, according to the plat thereof, as recorded in Plat Book 127, Page 1, of the Public Records of Palm Beach County, Florida; and Parcel 2, Boynton Beach Town Square, according to the plat thereof, as recorded in Plat Book 127, Page 1, of the Public Records of Palm Beach County, Florida. 01888887-5 52983123_1 23 Page 682 of 971 01888887-5 52983123_1 EXHIBIT "B" MASTER PLAN 24 Page 683 of 971 PHASE =3 NORTH RESIDENTIAL/ COMMERCIAL 441 UNITS TPHASE 11 PHASE G&ERNM�INT/ .. CENTRAL PARCEL CIVIC R_ 1'�E P" xo IF, PHASE 1 GOVERNMENT/ rVIC " � T, PI'IlIPl DEVELOPMENT TEAM — — — — — — — — — -..... 11A""El TIA11111 FlIA -IL FlF1' I'L "'I' EN-ElB 11,11411 AlIlITIIT 11 A 1111111 "I" IF,Ise LSF AacLA" 'C'APE 1 N'O'11�14�l L 11, 1 A K I I NN B IA I I 1.NTlFLALl T111 P_ _ 11 Exhibit D - Master Plan LOCATION MAP urban E= desin stuc?(0 U- D n 6 PInq NOUN L.ndcape A -It ... B, PHASE2 SOUTH RESIDENTIA= 1 of 2 COMMERCIAL 4 4�' UNITS 5 UNITS Bn� � T, PI'IlIPl DEVELOPMENT TEAM — — — — — — — — — -..... 11A""El TIA11111 FlIA -IL FlF1' I'L "'I' EN-ElB 11,11411 AlIlITIIT 11 A 1111111 "I" IF,Ise LSF AacLA" 'C'APE 1 N'O'11�14�l L 11, 1 A K I I NN B IA I I 1.NTlFLALl T111 P_ _ 11 Exhibit D - Master Plan LOCATION MAP urban E= desin stuc?(0 U- D n 6 PInq NOUN L.ndcape A -It ... B, FIRE STATION PARCEL 1 of 2 02 09, 2023 ---------- SITE DATA IFN �� ...... ...... N'ENL_ F'N �EBI INTF PANNBT 1.11EP -11 Al 1 -11 IIA P'gP MAGNUSON PROJECT SUMMARY HOUSE cep EA ... P-1 P-I.E. 'AREA' OR Op.='.m.II Inc B, LEms�6r O.lE-IINNl LU IF,, -"Em I 11, 4 111 IN N— I N- I 1114PI NI. ll—_ 11TI1111111. GROSS AREA 115622 5�62 676,946 662,757 'PLATTED PLPROD ECT AREA :3 rvcwoE L='l`LFP="K'FlHL'TLP, , 1 N- L" F cy U_ USEABLE OPEN SPACE CALCULATION GROB,- SIT, ARFRss A z III Ii LIIALNII IELFA Pl.lABl lO 1-111 INAP I 'El III ,1FIZUB11%, I'll I P"""' 0 NOTES IN. PEL I 11 IF NPLITER PLAN PN.PP— B.INEPLIES OT ANN LUPPIELF ElS ILE BRO. - ILE EEI.FNE) PUT( 121 RPOEIF I I PI111D s". -l' ONT _FHE 0 M I— 21 SILL 11 11 111 *1" PPP -1-1 ,lNFJ LET 111BUT PI 11 FIFAAAAL PLO PINIFIN, LF'E.':AN'N 0F'NFBP Z.�B1I I �ION,TON.ONlPlAN_�l 1�91PENIEPE11:- P-1 LIN 11 l 2 11 51111 1 PHASE I A AN, N UI. N011 F 4 PEP(S) LLF OF 0PAPOEO ON P-PBB 4 511B 'NUBA... ON ME APP-1—AND F—E.T I FILE PIN PPPN—LS ANN LE.NUN. IFR�r Pl- ANO -111T I FILION.1 I III N - 9l III, III PI—F-LLK =_N_ FlIFIAINFRIPPIFLIT. NORTH 121 -NI I LEGEND 11 1111EPH NIPIIAL - 11 11 TO , tN)1111 IT 11`1111 IFILL BE *111 11111LI ONILL —111 FTIMI IF III PLAN IRPLIOPIII OT UPILIFF PIRS IIEL BE IBIONAID UNDLEBOOPNO SUBJECI 10 11 All MSP -1 of 2 -ND Exhibit D - Master Plan 2 of 2 02 09, 2023 -- -- --- ---- ------- ------ -------------- PARKING - SPA - CES REWIRED ------------- �FUSE SJ -Sp NCES 01888887-5 52983123_1 EXHIBIT "C" PARKING ALLOCATION 25 Page 686 of 971 BLDG 11 BDF 13 BDF 11 BDF 12 BDF 13 BDF Grand Total 898 2013 473 77 1463 units Avert Page 687 of 971 North Building Parking Floor DUs Total City Comm. Res. Ratio 1 14 75 54 0 21 1.50 1.5 0 120 120 0 0 0.00 2 59 115 32 0 83 1.41 3 62 120 31 0 89 1.44 4 62 120 0 32 88 1.42 5 62 119 0 28 91 1.47 6 62 119 0 0 119 1.92 7 62 119 0 0 119 1.92 8 58 1 121 0 0 121 2.09 Total 441 1 1028 237 60 731 1.66 BLDG 11 BDF 13 BDF 11 BDF 12 BDF 13 BDF Grand Total 898 2013 473 77 1463 units Avert Page 687 of 971 South Building Parking Floor DUs Total City Comm. Res. Ratio 1 22 73 40 0 33 1.50 1.5 0 114 114 0 0 0.00 2 61 110 30 0 80 1.31 3 63 114 30 0 84 1.33 4 63 114 22 0 92 1.46 5 63 114 0 17 97 1.54 6 63 114 0 0 114 1.81 7 63 114 0 0 114 1.81 8 59 1 118 0 0 118 2.00 Total 457 1 985 236 17 732 1.60 BLDG 11 BDF 13 BDF 11 BDF 12 BDF 13 BDF Grand Total 898 2013 473 77 1463 units Avert Page 687 of 971 G I - North Parcel i PER LEVELS Level 1st Level 2"d Levels 3rd - 7th Level 8th TOTAL AREA LEASABLE AREA (NRSF) % TOTALS 110/1 B: ST 2 4 20 3 29 550 sf 15,950 sf 1 6.6% T& 1BDR + DEN: Al 1 6 35 6 48 793 sf 38,064 sf AIM 1 14 70 13 98 749 sf 73,402 sf 48.1% A2 0 4 20 4 28 698 sf 19,544 sf 46.0% B1 2 3 20 4 29 950 sf 27,550 sf R: B2 1 3 15 3 22 980 sf 21,560 sf C1 2 3 15 3 23 1,083 sf 24,909 sf 37.9% C2 5 16 85 16 122 1,156 sf 141,032 sf R: D1 0 1 5 1 7 1,341 sf 9,387 sf D2 0 5 25 5 35 1,461 sf 51,135 sf 9.5% per Level 14 59 310 58 age Unit Size 958 sf /Building 441 dus I 422,533 sf 100.0% G II - South Parcel i PER LEVELS" Level 1st Level 2nd Levels 3rd -7 th Level 8th TOTAL AREA LEASABLE AREA (NRSF) % TOTALS 110/1 B: ST 2 4 20 4 30 550 sf 16,500 sf 6.6% R &1BDR+ DEN: Al 0 10 55 11 76 793 sf 60,268 sf AIM 5 12 60 8 85 749 sf 63,665 sf 48.1% A2 0 4 20 4 28 698 sf 19,544 sf B1 3 4 20 4 31 950 sf 29,450 sf R: B2 1 1 5 1 8 980 sf 7,840 sf C1 1 9 1 45 9 64 1,083 sf 69,312 sf 38.9% C2 9 13 70 14 106 1,156 sf 122,536 sf R: D1 1 3 15 3 22 1,341 sf 29,502 sf D2 0 1 5 1 7 1,461 sf 10,227 sf 6.3% per Level 22 61 315 59 age Unit Size 938 sf /Building 457 dus 428,844 sf 100.0% (.evel, I Leve f 1 Lural Level Leveq Levd Level Lveq........ 7 Level Total l evel I evel I Total) Page 688 of 971 Provided Parking BLDG 11 (South Parcel) 9 STORY GARAGE ..5 9, STORY GARAGE Standard Compact HC Totall per Level 60 sp 8 sp 5 sp 73 sp 103 sp 11 sp sp 114 sp 96 sp 11 sp 3 sp 110 sp 101 sp 11 sp 2 sp 114 sp 101 sp 11 sp 2 sp 114 sp 101 sp 11 sp 2 sp 114 sp 101 sp 101 sp 11 sp 11 sp 2 sp 2 sp 114 sp 114 sp 105 sp 11 sp 2 sp 118 sp pub-Tbtal 869 sf 96 sf 20 sf Provided Ratio 985 sp 2.1 sp/unit 10028 sp 2.23 s�uni Provided Parking BLDG 11 (South Parcel) ..5 9, STORY GARAGE Standard Compact HC Totall per Level 60 sp 8 sp 5 sp 73 sp 103 sp 11 sp sp 114 sp 96 sp 11 sp 3 sp 110 sp 101 sp 11 sp 2 sp 114 sp 101 sp 11 sp 2 sp 114 sp 101 sp 11 sp 2 sp 114 sp 101 sp 101 sp 11 sp 11 sp 2 sp 2 sp 114 sp 114 sp 105 sp 11 sp 2 sp 118 sp pub-Tbtal 869 sf 96 sf 20 sf Provided Ratio 985 sp 2.1 sp/unit Page 689 of 971 01888887-5 52983123_1 EXHIBIT "D" SCHEMATIC DEPICTION OF PARKING SPACES 26 Page 690 of 971 NORTH GARAGE FLOOR 1: 54 CITY/PUBLIC 21 RESIDENT '1 NORTH GARAGE FLOOR 1.5: 120 CITY/PUBLIC Page 692 of 971 NORTH GARAGE FLOOR 2: 32 CITY/PUBLIC 83 RESIDENT NORTH GARAGE FLOOR 3: 31 CITY/PUBLIC 89 RESIDENT Page 694 of 971 .., ,,,,,, / ,,,:�,.e......:.... ,,,,,,,,., ,..p........ ....e.....,,,,,,,, t .............. ,,,,,,,,,,,,,;o. V V .....,,,,,,,,,,,,,,,, ,,. 1 .� 1 I 1 Page 694 of 971 NORTH GARAGE FLOOR 4: 32 COMMERCIAL 88 RESIDENT Page 695 of 971 NORTH GARAGE FLOOR 5: 28 COMMERCIAL 91 RESIDENI Page 696 of 971 Page 697 of 971 7 My Spaces 4 Resklent Spaces ..... .... .......... . .. ....... . ..... .... ............ ........... . .......... . 11 .......... .......... ................... ..................... SOUTH GARAGE FLOOR 1: . 33 RESIDENT . . ...... . ...... 40 CITY/PUBLIC ............... M I "IM—IT ......... .................. .. . ................... ........... ................... ...................... ............ .......... ............. ........................ .............. .................... ............... ...................... ................ ........................ ................. ........................ .................. ..................... . . ................ . ............ ............ I ............ ............. ........ - Ln .. ...... .................... Ent . . ................ . ........................... ........... - — .............................. ........... LLJ .............................. ............. ............ ................. . ..... ............... .. .. ...... Page 697 of 971 7 My Spaces 4 Resklent Spaces SOUTH GARAGE FLOOR 1.5: 114 CITY/PUBLIC Page 698 of 971 SOUTH GARAGE FLOOR 2: 30 CITY/PUBLIC 80 RESIDENT Page 699 of 971 SOUTH GARAGE FLOOR 3: 30 CITY/PUBLIC 84 RESIDENT Page 700 of 971 SOUTH GARAGE FLOOR 4: 22 CITY mit 92 RESIDENT A . ... ...... .... ...... .. ........ ... . . ...... m.. ...... . .. ....... I . jj ............. ... ....... ...... .............. . . . . . ........................ ............. . ............... . ........ . .............. Page 701 of 971 SOUTH GARAGE FLOOR 4: 17 COMMERCIAL 97 RESIDENT Page 702 of 971 EXHIBIT "E" CONFIRMATION OF COMMENCEMENT DATE PARKING LEASE AGREEMENT FOR THE NORTH GARAGE The parties hereto agree and confirm that the date of the Final Certificate of Occupancy for the North Garage has been issued, dated , 202. Pursuant to the definition of "Commencement Date" in paragraph 9(a)(ii) of the Parking Lease Agreement for the North Garage dated , 2023, the Commencement Date for the Term of the Parking Lease Agreement for the North Garage shall be , 202 . CITY: WITNESSES: Print Name: Print Name: 01888887-5 52983123_1 OWNER: 27 CITY OF BOYNTON BEACH Mayor BOYNTON BEACH TOWN CENTER APARTMENTS, LLC, a Florida limited liability company By: Name: Title: Page 703 of 971 PARKING LEASE AGREEMENT South Garage THIS PARKING LEASE AGREEMENT (the "Agreement") is entered into this day of 2023, by and between BOYNTON BEACH TOWN CENTER APARTMENTS, LLC, a Florida limited liability company ("Owner"), and CITY OF BOYNTON BEACH ("City"). WITNESSETH: WHEREAS, Owner owns certain real property in Boynton Beach, Florida, as more particularly depicted on the attached Exhibit "A" (collectively, "Property"), together with all rights, easements and appurtenances belonging or in any way pertaining thereto, and all improvements to be constructed thereon, including without limitation certain buildings, and a parking garage commonly known Garage South (the "Garage"); WHEREAS, Owner, itself or through an affiliate thereof, and City have entered into a Development Agreement of even date herewith (the "Development Agreement") governing, among other things, development of the Garage, and Owner's obligations to commence construction thereunder; and WHEREAS, pursuant to the Development Agreement and that certain City -approved master plan attached hereto as Exhibit `B" (the "Master Plan"), the Garage contemplated for construction on the Property is anticipated to contain a total of approximately 1026 parking spaces; and WHEREAS, pursuant to that certain Parking Allocation attached hereto as Exhibit "C" ("Parking Allocation"), the approximately 983 parking spaces in the Garage shall be allocated as follows: a. 236 parking spaces which are being leased by Owner to City pursuant and subject to the terms and conditions in this Agreement (the "City Spaces"). b. 747 parking spaces which are not being leased to City and are reserved by Owner for the exclusive use of its residential and commercial tenants, as depicted in the Parking Allocation as "Residential and Guest" and "Commercial" (together the "Owner Controlled Spaces"; the City Spaces and the Owner Controlled Spaces are referred to hereinafter together as "All Spaces"); and WHEREAS, Owner desires to lease the City Spaces to City, upon the terms and conditions set forth herein; and WHEREAS, once constructed, the Garage will provide required parking for certain City buildings and facilities; 01889373-1 52983123_1 Page 704 of 971 WHEREAS, pursuant to the Master Plan, Owner plans to construct a second parking garage ("South Garage"); and WHEREAS, simultaneous with the execution of this Agreement the parties intend to execute a substantially similar parking lease agreement for parking spaces in the South Garage; NOW, THEREFORE, in consideration of their mutual promises, covenants and intending to be legally bound, the parties hereto agree as follows: 1. Recitals. The foregoing recitals are true and correct and are incorporated herein by reference. 2. Construction of Garage. The Garage will be constructed pursuant to the terms and conditions of the Master Plan and the Development Agreement and any development orders issued for the Garage. 3. Lease of City Spaces. Owner hereby leases to City and City hereby leases from Owner, pursuant and subject to the terms and conditions of this Agreement, the City Spaces, together with the nonexclusive use, in common with others entitled thereto, of the Common Areas, for the purpose of accessing and using the City Spaces. As constructed and installed, the City Spaces shall be located within the areas designated as the City Spaces in the site plan to be submitted to City for its approval, provided that such spaces shall be on the same levels of the Garage as depicted on the drawing attached hereto as Exhibit "D" (the remaining levels of the Garage being reserved for the Owner Controlled Spaces). The parties understand that the attached Exhibit "D" is for illustrative purposes only, remains subject to site plan review, and nothing in this Agreement shall be deemed a site plan approval or relieve Owner of its obligations to obtain the same. Notwithstanding illustrative nature of Exhibit "D," the 237 City Spaces shall be as follows, subject to the terms herein: a. 171 parking spaces shall be designated "Exclusive City Spaces," which shall be for the exclusive use of the City 24 hours a day, 7 days a week. The Exclusive City Spaces shall be located no higher in the Garage than the ramp located between the mezzanine and second level of the Garage. No more than 10% of the Exclusive Parking Spaces may be compact spaces and no more than 1% of the Exclusive Parking Spaces may be motorcycle spaces. b. 65 City Spaces shall be designated "Nonexclusive City Spaces," which shall be for the exclusive use of the City between the hours of 7:30 am to 6:30 pm, Monday through Friday (the "City Control Hours"). Except during the City Control Hours, Owner may utilize the Nonexclusive City Spaces for other parking purposes, including commercial parking and residential parking; provided however, that Owner's use of the Nonexclusive Parking Spaces shall not be counted towards required parking for Owner's residential and commercial tenants for site planning purposes. No more than 10% of the Nonexclusive Parking Spaces may be compact spaces and no more than 1% of the Nonexclusive Parking Spaces may be motorcycle spaces. 01889373-1 52983123_1 2 Page 705 of 971 c. During the site planning process, the parties may agree to swap the location of a portion of the City Spaces with certain of those spaces depicted as "commercial spaces" on Exhibit "D." 4. Owner Controlled Spaces. Owner shall have the absolute right to use and control the Owner Controlled Spaces for the purpose of providing parking for its residential and commercial tenants on an exclusive basis, pursuant to rules and regulations binding such tenants as determined by Owner from time to time in its sole discretion, notwithstanding anything in this Agreement to the contrary (provided such rules and regulations shall not materially affect the use of or access to the City Spaces and are in compliance with all applicable city, state, and federal ordinances, laws, rules, and regulations). Further, Owner shall have the right to install a gate or other mechanism within the Garage, to be installed, modified, replaced, repaired and maintained at Owner's sole cost, which shall restrict access to the Owner Controlled Spaces as deemed appropriate by Owner in its sole and absolute discretion (the "Gate"); it being understood and agreed that the Owner Controlled Spaces are intended and reserved exclusively for the use and enjoyment of Owner's tenants, are not being leased to City, and City shall have no rights (possessory or otherwise) with respect thereto (except to enforce Owner's express obligations hereunder if necessary). Notwithstanding the foregoing, Owner's installation, maintenance, modification, replacement and repair of the Gate shall not materially interfere with City's and the public's use of the City Spaces, and all such work shall be performed in accordance with all Legal Requirements. In the event that City and Owner later agree that certain City Spaces may be located behind a Gate, such agreement shall be expressly conditioned on the understanding that the Owner may not deny the City (or City's designee, if any) access to the City Spaces behind the Gate for any reason whatsoever (it being understood that such City Spaces may be located behind the Gate, but the City (or its designee) shall at all times have continuous and uninterrupted access (via a gate fob, "clicker" or otherwise) through the Gate to and from such City Spaces). Additionally, Owner shall have the right, from time to time, alter or modify the use, design or structure (or any combination thereof) of that portion of the Garage comprising the Owner Controlled Spaces and the Common Area appurtenant thereto (the "Owner Alteration"), provided (i) Owner obtains all necessary permits and approvals for the applicable governmental authorities, (ii) the Owner Alteration, including alteration of the Common Areas appurtenant to such Owner Controlled Spaces, shall not disturb the City Spaces or the use thereof (as permitted in this Agreement). 5. Management of Garage. Owner, itself or through an affiliate or management company designated by Owner in its sole discretion, shall operate and maintain the Garage as a first-class facility and shall, in such capacity, among other things, assess City its Proportionate Share of Operating Expenses pursuant to Section 9 below. Notwithstanding the foregoing, however, if any portion of the City Spaces (or the Common Areas appurtenant thereto) are subject to any interference, action, condition, material waste or damage not caused solely by Owner, its agents, contractors, tenants or designees and which, in Owner's reasonable discretion, (i) impedes or restricts access to the Common Areas and/or Owner Controlled Spaces (ii) creates a visual, audial or other nuisance, (iii) violates any applicable laws or codes which violations can be lawfully remediated by Owner, (iv) violates the any of the Rules and Regulations (defined below) or (v) otherwise causes the Garage to be less than a "first-class" facility (any of the foregoing, a "Violation"), then Owner shall have the right to tow or boot vehicles, perform extra cleaning or 01889373-1 52983123_1 3 Page 706 of 971 maintenance, contact the appropriate authorities, replace or repair damage or take such other action as Owner reasonably believes is necessary to remedy such violation and City shall reimburse Owner's actual charges therefor within forty-five (45) days of delivery of an invoice with reasonable detail. Reimbursement for any such Violation shall be in addition to any Operating Expenses for which City is otherwise responsible. Owner shall have the right, but not the obligation, to create reasonable rules and regulations for use of the Garage ("Rules and Regulations") which shall be uniformly applied in a non-discriminatory manner and shall be effective upon delivery of a copy thereof to City; provided however, that any such Rules and Regulations shall not impede or disrupt the City's rights under this Agreement (including the City's rights to use and access the City Spaces), and including the right to park vehicles in the Exclusive City Spaces during hurricanes or other natural disasters. The Owner shall operate the Garage in compliance with all applicable 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 Garage is located. Owner shall comply with all such laws, ordinances, regulations, codes and orders now in effect or hereafter enacted or passed during the Term. 6. Term and Commencement of Term. This Agreement shall be in full force and effect from the date of the issuance of the final Certificate of Occupancy (or equivalent certification) for the Garage ("Effective Date"). The term of the Agreement ("Term") shall commence on the date first written above. Unless sooner terminated pursuant to the terms of this Agreement, the Term shall continue from the Commencement Date for aperiod of one hundred (100) years and shall terminate at midnight on the last day of the one hundredth (100th) Lease Year (as hereinafter defined) ("Expiration Date"). 7. Rent and Expenses. (a) Pursuant to the Development Agreement, City has provided consideration to Owner for the use of the City Spaces for the Term set forth herein, the sufficiency of which Owner hereby acknowledges. (b) The City shall pay its Proportionate Share of the Operating Expenses (as defined in Section 9) related to the maintenance and operation of the Garage. 8. Sales Tax Exemption. Notwithstanding anything to the contrary set forth in this Agreement, so long as City obtains and provides a true, correct, and complete copy of a sales tax exemption certificate, issued by the Florida Department of Revenue to Owner contemporaneously with City's execution and delivery of this Agreement, City shall be exempted from paying sales tax (from which it is so exempt) under this Agreement. City shall, not later than thirty (30) days before the end of each calendar year throughout the Term provide to Owner an updated sales tax exemption certificate from the Florida Department of Revenue to establish City's exemption from sales tax for the upcoming year. In the event that, at any time during the Term, City no longer holds a valid sales tax exemption certificate from the Florida Department of Revenue or it is determined by the Florida Department of Revenue that sales tax is otherwise due on the amounts payable by City under this Agreement for any reason whatsoever, then City shall be liable for all sales taxes due under this Agreement and shall promptly remit same to Owner. City may, upon written notice to Owner, request that Owner contest any such taxes, assessments and other charges that City reasonably determines, in its good faith judgment, are not appropriate or applicable. Owner may elect, but shall 01889373-1 52983123_1 M Page 707 of 971 not be obligated, to accept any request by City to contest such taxes, assessments and/or other charges. In the event Owner elects to accept City's request, City shall reimburse Owner for all actual costs and expenses incurred by Owner in connection with contesting such taxes, assessments and/or other charges on City's behalf (including, without limitation, reasonable attorneys' fees) within thirty (30) days of Owner's written demand therefor. Notwithstanding any pending tax or assessment contest, City shall be obligated to pay, when and as due under this Agreement, all taxes, assessments or other charges so contested. City's obligation to pay any taxes, assessments and/or other charges under this Agreement shall not be contingent upon the resolution of any such tax contest. Owner shall provide the City with a credit for all taxes, assessments and other charges which are awarded to Owner in such tax contest to the extent applicable to City's Proportionate Share. 9. Expenses. (a) Definitions. For purposes of this Agreement, the following terms shall have the meanings set forth below: (i) "City's Proportionate Share of Operating Expenses" shall be calculated as follows: the City shall be charged 100% of the Operating Expenses associated with the Exclusive City Spaces, which shall be calculated by dividing the number of Exclusive City Spaces by the number of total Garage spaces, then multiplying the resulting number by the total Operating Expenses of the Garage. The City shall also be charged 33% of the Operating Expenses associated with the Nonexclusive City Spaces, which shall be calculated by dividing the number of Nonexclusive City Spaces by the number of total Garage spaces, which resulting amount shall be multiplied by .33, which shall then be multiplied by the Operating Expenses of the Garage. The multiplier .33 is determined by dividing the number of hours the City will control the Nonexclusive City Spaces during one week by 168 and rounding to the nearest two decimal places. The Operating Expenses of the Exclusive City Spaces shall be added to the Operating Expenses of the Nonexclusive Spaces to determine the City's Proportionate Share of Operating Expenses. Figure 1, below, contains a mathematical illustration of the calculation described in this Section 9(a)(i). 01889373-1 52983123_1 k, Page 708 of 971 Figure 1: City's Proportionate Share of Operating Expenses Calculation Number of Exclusive City Spaces x Operatnng Expenses = 'Number of Total Garage Spaces Number of Nonexclusive City Spaces x .33 x Operatnng Expenses = Number of Total Garage Spaces Operating Expenses for Operating Expenses for Exclusive City Spaces � NonexcluslVe City Spaces Operating Expenses for Exclusive City Spaces Operatinug Expenses for -Nonexclusive City Spaces City s Proportionate Share of Operating Expenses At present, the parties anticipate that the City's Proportionate Share of Operating Expenses shall be 19.57% of the total Operating Expenses of the Garage. (ii) "Commencement Date" shall mean that "Commencement Date" as set forth in that certain Confirmation of Commencement Date completed and executed by City and Owner on the form attached as Exhibit "E" hereto. Upon the issuance of a final certificate of occupancy for the Garage (or upon another milestone agreed in writing by Owner and City), then Owner and City shall promptly execute the Confirmation of Commencement Date with the applicable date of issuance of such certificate of occupancy (or other agreed date) inserted as the Commencement Date. (iii) "Common Areas" shall mean all areas located within the Garage excluding the actual parking spaces comprising All Spaces. To avoid confusion, Common Areas shall include all utilities, drainage, driveways, structures, elevators, ductwork, risers, decoration (including, without limitation, artwork), landscaping, ramps and all other portions of the Garage, including, without limitation, those Common Areas which serve the Garage and/or All Spaces. (iv) "Lease Year" shall mean the following time periods: the first Lease Year shall commence upon the Commencement Date and end on December 31; and each Lease Year thereafter shall commence upon January 1 after the end of the prior Lease Year, and shall end on 01889373-1 52983123_1 6 Page 709 of 971 December 31 of that year. Any calculations based on the first Lease Year and last Lease Year shall be prorated accordingly. (v) "Operating Expenses" shall mean all costs and expenses which Owner actually incurs for operating, maintaining and repairing the Garage, the parking areas (including, without limitation, All Spaces), and the Common Areas. Operating Expenses shall include 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) market rate management fees, including, to the extent permitted under the 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, pest control, 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 Common Areas and window cleaning; (e) the cost of capital improvements to any portion of the Garage; (f) all taxes and assessments (including, without limitation, real estate taxes); (g) insurance costs; and (h) all other costs customarily treated as operating expenses or taxes in buildings of this nature. Operating Expenses do not include salary, benefits, or bonuses of Owner's employees or officers employed by Owner or any subsidiary of Owner or entity related to Owner; or other expenses not directly related to the operation of the Garage. Notwithstanding the foregoing, the City shall not be required to pay taxes and assessments from which it is lawfully exempt, and in the event Owner receives any reduction in taxes or assessments owed or paid, which reduction can be verified as resulting directly from the City's status as a governmental entity, such savings shall be passed directly on to the City. Any Operating Expenses associated solely with the Owner Controlled Spaces shall not be included in the calculation of City's Proportionate Share of Operating Expenses. (vi) Rights. City acknowledges that Owner shall have the right to install facilities within the Common Areas for the benefit of the Garage and to perform services for the benefit of the Garage, of Owner, of Owner's tenants, and of the licensees, employees, customers, visitors and invitees of the Garage, 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 Garage. Owner's costs of operating, maintaining and insuring any such facilities and providing any such services for the benefit of the Garage 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 Garage, shall be included, in proportionate share, in Operating Expenses for purposes hereof. Notwithstanding anything to the contrary in this Agreement, to the extent that any material improvements to the Garage contemplated by Owner directly affect the City Spaces or City's right to the use of the City Spaces, Owner shall be required to obtain the prior written consent of City, which consent shall not be unreasonably withheld, delayed or conditioned by City, and City shall be responsible for City's Proportionate Share of Operating Expenses with respect to such improvements. However, to the extent that any improvements to the Garage only: (A) Affect the City Spaces or City's right to the use of the City Spaces under this Agreement, City shall be solely responsible for all costs of construction, installation, maintenance, repair, and replacement of such improvements; and 01889373-1 52983123_1 7 Page 710 of 971 (B) Affect the Owner Controlled Spaces or Owner's right to the use of the Owner Controlled Spaces under this Agreement, 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 9(a)(i), the City's Proportionate Share of Operating Expenses (prorated for any partial Lease Year at the beginning or end of the Term). (c) Estimate. For each Lease Year during the Term, Owner shall supply City with an estimate of the City's Proportionate Share of Operating Expenses ("Owner's Estimated Expense Computation") for such Lease Year. City shall pay to Owner on the first day of each month during the Lease Year one -twelfth (1/12) of Owner's Estimated Expense Computation. For each Lease Year during the Term, Owner shall notify City of the actual annualized Operating Expenses for the Lease Year just concluded ("Owner's Actual Expense Computation"). Owner's Actual Expense Computation shall be prorated for any fraction of a Lease Year in which the Term begins or ends. If the Owner's Estimated Expense Computation paid by City to Owner with regard to any Lease Year is less than the Owner's Actual Expense Computation with regard to the same Lease Year, the amount of such shortfall shall be taken into account in calculating the Owner's Estimated Expense Computation for the following Lease Year (and shall thereby increase the following Lease 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 Lease Year exceeds the Owner's Actual Expense Computation with regard to the same Lease Year, the excess shall be taken into account in calculating the Owner's Estimated Expense Computation for the following Lease Year (and shall thereby decrease the following Lease Year's estimated payments by the amount of such excess). (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 Lease Year occurring during the term of the Agreement. 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 City has paid in excess of its 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 laws, codes and ordinances) 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 Garage; establish and, from time to time, change the level or grade of parking surfaces 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 City Spaces without the prior written consent of City, which consent shall not be unreasonably withheld, conditioned, or delayed. In no case shall the City Spaces 01889373-1 52983123_1 K, Page 711 of 971 be moved to a higher level than depicted on Exhibit "D" unless expressly consented to by the City in its sole discretion. (f) Demolition of Garage. After 30 years from the Effective Date, the Owner has the right to demolish the garage and construct new parking garage improvements on the Property; provided however that Owner may exercise such right only if the following conditions are met: (A) Except in cases where immediate demolition is required to protect public health or provide public safety, Owner shall provide the City at least one year's advance written notice of such demolition; (B) Owner must obtain, at its sole expense, all necessary approvals and permits; (C) Owner must, at its sole expense, provide to City parking in a substantially equivalent amount of parking spaces in an alternative location and with the same rights to use, occupy, manage, charge for (meter), and tow temporarily during the demolition and construction of the new parking garage. In the event the temporary parking provided is more than .25 miles from the entrance to City Hall, Owner shall provide, at its sole expense, shuttle service not less than once per hour and for which the average shuttle trip time does not exceed 15 minutes; and (D) Upon completion of the new parking garage, this Agreement shall remain in full force and effect and Developer and City shall recognize the new parking garage as the Garage. In the event Developer exercises its right to demolish the Garage, the City may, in its sole discretion, elect (x) to terminate this Agreement instead of accepting alternative parking arrangements, or (y) to allow the Agreement to remain in full force and effect but provide its own alternative parking arrangements, during which City shall not pay any fees or costs of any kind to Owner. 10. 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 ten (10%) per annum. If any check given to Owner for any 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. 11. Payment of Utilities. Subject to reimbursement by City as part of the Operating Expenses, Owner shall provide and pay for any electrical or other utility services required to operate the City Spaces. Owner makes no warranty or representation as to the quality or capacity of utility service to the City Spaces. 12. Use of City Spaces. (a) City shall use the City Spaces solely for the parking of motor vehicles and for no other purpose. The City may, in its sole discretion, allow the general public to park in all, some, or none of (i) the Exclusive City Spaces at all times and (ii) the Nonexclusive City Spaces only during the City Controlled Hours. 01889373-1 52983123_1 9 Page 712 of 971 (b) City acknowledges that all parking in the Garage is currently on a self -parking basis. City covenants and agrees that notwithstanding anything in Section 5 above or otherwise in this Agreement to the contrary, Owner shall have no obligation, liability, or responsibility to City should the City Spaces be occupied at any time or times by vehicles not so authorized or directed by Owner. (c) 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 City Spaces, including signage indicating that the Exclusive City Spaces are for the sole use of City, that the Nonexclusive Spaces are for the sole use of the City during the City Control Hours, 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 which shall not be unreasonably withheld, conditioned, or delayed. City, at its sole cost and expense, shall prior to installation of signage, obtain all required governmental, quasi -governmental, and other permits and approvals. (d) 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 City 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, conditioned, or delayed 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 the City 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, at the option of the City in its sole discretion, applied to reduce City's obligations with respect to 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. (e) City, at its sole expense, may also contract with a duly licensed towing company to service the City Spaces and to enforce the signage described in Section 12(c), 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. (f) City, at its sole expense, may also contract with a management company to operate the City Spaces or any aspect thereof, including metering, charging, maintenance, signage, and other aspects. Such manager shall reasonably coordinate with Owner and any manager employed by Owner for the operation of the Garage. This Section 12(f) shall not interfere with or 01889373-1 52983123_1 10 Page 713 of 971 reduce the Owner's rights pursuant to Sections 5 and 9 of this Agreement, including but not limited to the right to pass through to the City its proportionate share of the costs of operating the Garage. (g) City covenants that, during the Term, no part of the City Spaces shall be used in any manner whatsoever for any purposes other than as set forth in this Section 12 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 City Spaces 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 City Spaces and any signs of the City are concerned (collectively, "Legal Requirements"). (h) The City Control Hours have been determined based on the operating hours of the City's facilities. In the event the such operating hours change, the City may request that Owner agree to modify the City Control Hours accordingly, which agreement shall not be unreasonably withheld, conditioned, or delayed, and in which case the City's Proportionate Share of Operating Expenses shall be adjusted accordingly. 13. City's Insurance. City may elect to self -insure against certain risks, including certain risks related to City's rights under this Agreement and to City's occupation or use of the City Spaces. 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 (or if City later elects to obtain insurance in lieu of self-insurance, then City shall immediately notify Owner in writing of such election and provide a certificate of insurance which conforms to the requirements of this Section). 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 Garage 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 Garage 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 Garage) limit the liability of City under this Agreement. 14. Waiver of Claims. Except for claims arising from Owner's intentional or negligent acts that are not covered by City's insurance required by this Agreement, subject to applicable law, City or any party claiming through City (or both) (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 Garage; (ii) wind, rain, hurricane, flooding, fire, explosion, hail, or other 01889373-1 52983123_1 11 Page 714 of 971 casualty or act of God; and (iii) vandalism, assault, battery, malicious mischief, theft or other acts or omissions of any third parties not caused by Owner's failure to operate the Garage in all material respects as required by this Agreement. 15. 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 City Spaces 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 up to the amount specified in Section 768.28, Florida Statutes, whether such claim lie in indemnity, contract, tort, or otherwise. This Section 15 shall survive the termination of the Agreement. 16. 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 negligence or intentional misconduct by Owner or any of its employees, independent contractors, invitees, guests, or agents. This Section 16 shall survive the termination of the Agreement. 17. 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 forty-five days (45) calendar days after City receives written notice of the failure to pay after the payment is due; (b) if City attempts to transfer its rights under this Agreement without Owner's prior written consent including any attempt to assign this Agreement or sublease all or any portion of the City Spaces without Owner's prior written consent; (c) if City violates any other material term, condition, or covenant in this Agreement which is to be performed by City, and fails to remedy the same within ninety (90) 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 ninety (90) days, City shall not be in default of this Agreement if City, during said ninety (90) day period, commences to cure the default and diligently continues in good faith to cure the default until completion. 18. Remedies of Owner. 01889373-1 52983123_1 12 Page 715 of 971 (a) If any monetary Event of Default by City occurs, then, in addition to any other remedies of Owner, Owner shall have Owner shall have the right to bring an action to recover all sums due, which may include an action for revenues generated by the City Spaces (including, if necessary, court selection of a receiver) to be paid to Owner up to the amount owed. (b) 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. (c) 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 City Spaces 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. Any amounts which may be due Owner shall include any costs, expenses, or any other amounts payable pursuant to this Agreement. (d) 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 Agreement or to add City as an additional insured under a policy of Owner's as to City's rights under this Agreement, and Owner shall have the right to charge City for any amounts required to purchase such insurance (or to be reimbursed for such amounts). (e) Any and all rights, remedies and options given in this Agreement to Owner shall be cumulative and in addition to and withoutwaiver of, or in derogation of, any right or remedy under this Agreement or provided under any law now or hereafter in effect. (f) No cure periods shall apply to any emergencies or to failure to maintain and furnish insurance. (g) It is expressly understood that the remedies provided in the Event of Default by the City shall be in the form of damages or equitable relief, which may include, specific performance, and injunctive relief (it being understood monetary damages may not be a sufficient remedy for City's default hereunder), and shall not result in termination of this Agreement. 19. 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 ninety (90) 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 ninety (90) days, Owner shall not be in default of this Agreement if Owner, during such ninety (90) day period, commences to cure the default and diligently continues in good faith to cure the default until completion. 01889373-1 52983123_1 13 Page 716 of 971 20. 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, may seek damages or specific performance, which may include injunctive relief, and may exercise any right or remedy now or hereafter existing at law or in equity or by statute. 21. 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. 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. 22. No Assignment or Sublease/Change in Ownership. (a) City may not assign this Agreement in whole or in part, nor sublease all or any portion of the City Spaces, 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 City Spaces in the ordinary course, whether with or without charge, on an hourly or daily basis. The consent by Owner to any assignment or sublease shall not constitute a waiver of the necessity for such consent to any subsequent assignment or sublease. No assignment, sublease, occupancy or collection shall be deemed acceptance of the assignee, sub -lessee, or occupant, or as a release of City from the further performance by City of the covenants on the part of City herein contained. Despite Owner's consent to an assignment or sublease, 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 rent or other sums to be paid hereunder unless otherwise expressly consented to by Owner in its sole discretion. Any attempted assignment or sublease 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 City Spaces and the Property, and all right and interest of Owner in this Agreement, may be conveyed or assigned at the sole discretion of Owner at any time provided such conveyance or assignment is of the whole Agreement and the party conveyed or assigned to is recognized as Owner under this Agreement. (c) If Owner, in its sole and absolute discretion, consents to an assignment or sublease of all or any portion of the City Spaces, the form of such documents shall be as acceptable to Owner in its sole and absolute discretion. 23. Subordination and Attornment. (a) From time to time, Owner may request the City to subordinate its rights hereunder to mortgage or other method of financing or refinancing through a subordination, non- disturbance, and attomment agreement ("SNDA"). Any subordination must be effectuated through an SNDA reasonably acceptable to the City so as to ensure the City's rights under this Agreement are continued without interruption for the Term of this Agreement. So long as the above-described 01889373-1 52983123_1 14 Page 717 of 971 conditions are met and the City has adequate assurances this Agreement will not be disturbed, the City shall approve of the SNDA. So long as such request is received more than 10 days before a City Commission meeting, the SNDA shall be placed on the next City Commission agenda, and if received less than 10 days before the next City Commission meeting, shall be placed on the agenda of the next available regularly scheduled meeting. Further, the City and Owner agree to work together with reasonable diligence and in good faith to create a standard form of SNDA to expedite such requests. (b) If any proceedings are brought for the foreclosure of, or if exercise of the power of sale occurs under, any mortgage covering the City Spaces 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. 24. 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 24, execute, acknowledge and deliver to the parry 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 parry 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 parry to execute, acknowledge and deliver to the other a statement in accordance with the provisions of this Section 24 within such thirty (30) day period shall constitute an acknowledgment, by the parry 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 City Spaces or this Agreement from or through the other parry, 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 24 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. 25. Right of Entry. Owner and Owner's agents may enter the Garage at all reasonable times to examine the City Spaces (as well as other portions of the Garage), and to show the Garage to prospective purchasers, mortgagees, or other interested parties, and to make such repairs, alterations, improvements or additions as Owner may deem necessary or desirable (including, without limitation, actions taken pursuant to Section 5 or 9 above), and Owner shall be allowed to take all material into and upon the City Spaces that may be required therefor without the same constituting a termination of or infringement upon City's rights in whole or in part, provided however that should such material remain in the City Spaces more than 3 calendar days the amounts payable to Owner shall be abated in proportion to the reasonably determined loss of use and access to the City Spaces while the repairs, alterations, improvements, or additions are being made. If City shall not be present to open and permit 01889373-1 52983123_1 15 Page 718 of 971 entry into the City Spaces, 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. 26. Hazardous Materials and Environmental Laws; Indemnity. City shall not cause or permit the City Spaces 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 City Spaces 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 any activity conducted thereon, and from any use, generation, handling, storage, transportation, disposal or release of Hazardous Materials at or in connection with the Garage 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 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", "containments", or other pollution under applicable federal, state, commonwealth, 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. 27. Time of the Essence. Time is of the essence regarding the performance of every provision of this Agreement. 28. 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 (which term Owner, for the purposes of this Section 28 only includes any party with a real property interest in any portion the Property) 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 City Spaces, 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 City Spaces, 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 01889373-1 52983123_1 16 Page 719 of 971 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 City Spaces. In the event of Owner bankruptcy, all City's rights under this Agreement (including the rights of use and access to the City Spaces, and amount and timing of payment) shall be considered appurtenant to the Property for the balance of the Term and shall be considered enforceable rights but may be subject to any limitation or subordination found in any SNDA entered into pursuant to Section 23(a) above. 29. 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, OR (11) CITY'S USE OF CITY SPACES AND THE GARAGE. 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. 30. 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 30(a) or Section 30(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: Dan Dugger, City Manager 100 E. Ocean Avenue Boynton Beach, FL 33435 Email: DuggerD@bbfl.us With a copy to: Michael Cirullo, Jr. Goren Cherof Doody and Ezrol, PA 3099 East Commercial Boulevard Suite 200 Fort Lauderdale, FL 33308 MCirullo(&- wrencherof.com 01889373-1 52983123_1 17 Page 720 of 971 Kathryn Rossmell Lewis, Longman & Walker, PA 360 S. Rosemary Avenue Suite 1100 West Palm Beach, FL 33401 krossmell (r&11w-law.com If to Owner: Jerneb Acquisition Corp. I c/o Time Equities, Inc. 55 Fifth Avenue —15'h Floor New York, New York 10003 Attention: Robert Kantor and Robert Singer Email: rkantor(r&timeequities.com rsing er &timeecluities.com With a copy to: Mark J. Lynn, Esq. Greenspoon Marder LLP 200 E. Broward Boulevard Suite 1800 Fort Lauderdale, FL 33301 e-mail: mark. lynn2gmlaw.com 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. 31. 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 City Spaces 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 City Spaces except as herein expressly set forth, and all representations, either oral or written, shall be deemed to be merged into this Agreement. Except 01889373-1 52983123_1 18 Page 721 of 971 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 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 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) 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. 01889373-1 52983123_1 19 Page 722 of 971 (h) 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, shall be brought exclusively in the courts of Palm Beach County, Florida. (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. Except as expressly provided herein, 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 rights of sovereign immunity or extend the City's liability beyond the limits established in Section 768.28 of the Florida Statutes, as it may be amended from time to time. Nothing in this Agreement shall be deemed a waiver of the City's rights of sovereign immunity, and in no case shall the City's liability exceed the amount specified in Section 768.28, Florida Statutes, whether such claim lie in indemnity, contract, tort, or otherwise. (o) Recorded Document. The City shall record this Agreement or a memorandum thereof in the Public Records of Palm Beach County, Florida. 01889373-1 52983123_1 [SIGNATURES ON FOLLOWING PAGE] 20 Page 723 of 971 This Parking Lease Agreement is entered into and acknowledged by City and Owner as of the date first stated above. Approved for Form by City Attorney 01889373-1 52983123_1 21 CITY: CITY OF BOYNTON BEACH Ty Penserga, Mayor Page 724 of 971 WITNESSES: Print Name: Print Name: 01889373-1 52983123_1 22 OWNER: BOYNTON BEACH TOWN CENTER APARTMENTS, LLC, a Florida limited liability company By: Name: Title: Page 725 of 971 EXHIBIT "A" THE PROPERTY Parcel 7, Boynton Beach Town Square, according to the plat thereof, as recorded in Plat Book 127, Page 1, of the Public Records of Palm Beach County, Florida. 01889373-1 52983123_1 23 Page 726 of 971 01889373-1 52983123_1 EXHIBIT "B" MASTER PLAN 24 Page 727 of 971 PHASE =3 NORTH RESIDENTIAL/ COMMERCIAL 441 UNITS TPHASE 11 PHASE G&ERNM�INT/ .. CENTRAL PARCEL CIVIC R_ 1'�E P" xo IF, PHASE 1 GOVERNMENT/ rVIC " DEVELOPMENT TEAM — — — — — — — — — -..... 11A""El TIA11111 FlIA -IL FlF1' I'L "'I' EN-ElB 11,11411 AlIlITIIT 11 A 1111111 "I" IF,Ise LSF AacLA" 'C'APE 1 N'O'11�14�l L 11, 1 A K I I NN B IA I I 1.NTlFLALl T111 P_ _ 11 Exhibit D - Master Plan LOCATION MAP urban E= desin stuc?(0 U- D n 6 PInq NOUN L.ndcape A -It ... B, PHASE2 SOUTH RESIDENTIA= 1 of 2 COMMERCIAL 4 4�' UNITS 5 UNITS Bn� DEVELOPMENT TEAM — — — — — — — — — -..... 11A""El TIA11111 FlIA -IL FlF1' I'L "'I' EN-ElB 11,11411 AlIlITIIT 11 A 1111111 "I" IF,Ise LSF AacLA" 'C'APE 1 N'O'11�14�l L 11, 1 A K I I NN B IA I I 1.NTlFLALl T111 P_ _ 11 Exhibit D - Master Plan LOCATION MAP urban E= desin stuc?(0 U- D n 6 PInq NOUN L.ndcape A -It ... B, FIRE STATION PARCEL 1 of 2 02 09, 2023 ---------- SITE DATA IFN �� ...... ...... N'ENL_ F'N �EBI INTF PANNBT 1.11EP -11 Al 1 -11 IIA P'gP MAGNUSON PROJECT SUMMARY HOUSE cep EA ... P-1 P-I.E. 'AREA' OR Op.='.m.II Inc B, LEms�6r O.lE-IINNl LU IF,, -"Em I 11, 4 111 IN N— I N- I 1114PI NI. ll—_ 11TI1111111. GROSS AREA 115622 5�62 676,946 662,757 'PLATTED PLPROD ECT AREA :3 rvcwoE L='l`LFP="K'FlHL'TLP, , 1 N- L" F cy U_ USEABLE OPEN SPACE CALCULATION GROB,- SIT, ARFRss A z III Ii LIIALNII IELFA Pl.lABl lO 1-111 INAP I 'El III ,1FIZUB11%, I'll I P"""' 0 NOTES IN. PEL I 11 IF NPLITER PLAN PN.PP— B.INEPLIES OT ANN LUPPIELF ElS ILE BRO. - ILE EEI.FNE) PUT( 121 RPOEIF I I PI111D s". -l' ONT _FHE 0 M I— 21 SILL 11 11 111 *1" PPP -1-1 ,lNFJ LET 111BUT PI 11 FIFAAAAL PLO PINIFIN, LF'E.':AN'N 0F'NFBP Z.�B1I I �ION,TON.ONlPlAN_�l 1�91PENIEPE11:- P-1 LIN 11 l 2 11 51111 1 PHASE I A AN, N UI. N011 F 4 PEP(S) LLF OF 0PAPOEO ON P-PBB 4 511B 'NUBA... ON ME APP-1—AND F—E.T I FILE PIN PPPN—LS ANN LE.NUN. IFR�r Pl- ANO -111T I FILION.1 I III N - 9l III, III PI—F-LLK =_N_ FlIFIAINFRIPPIFLIT. NORTH 121 -NI I LEGEND 11 1111EPH NIPIIAL - 11 11 TO , tN)1111 IT 11`1111 IFILL BE *111 11111LI ONILL —111 FTIMI IF III PLAN IRPLIOPIII OT UPILIFF PIRS IIEL BE IBIONAID UNDLEBOOPNO SUBJECI 10 11 All MSP -1 of 2 -ND Exhibit D - Master Plan 2 of 2 02 09, 2023 -- -- --- ---- ------- ------ -------------- PARKING - SPA - CES REWIRED ------------- �FUSE SJ -Sp NCES 01889373-1 52983123_1 EXHIBIT "C" PARKING ALLOCATION 25 Page 730 of 971 BLDG 11 BDF 13 BDF 11 BDF 12 BDF 13 BDF Grand Total 898 2013 473 77 1463 units Avert Page 731 of 971 North Building Parking Floor DUs Total City Comm. Res. Ratio 1 14 75 54 0 21 1.50 1.5 0 120 120 0 0 0.00 2 59 115 32 0 83 1.41 3 62 120 31 0 89 1.44 4 62 120 0 32 88 1.42 5 62 119 0 28 91 1.47 6 62 119 0 0 119 1.92 7 62 119 0 0 119 1.92 8 58 1 121 0 0 121 2.09 Total 441 1 1028 237 60 731 1.66 BLDG 11 BDF 13 BDF 11 BDF 12 BDF 13 BDF Grand Total 898 2013 473 77 1463 units Avert Page 731 of 971 South Building Parking Floor DUs Total City Comm. Res. Ratio 1 22 73 40 0 33 1.50 1.5 0 114 114 0 0 0.00 2 61 110 30 0 80 1.31 3 63 114 30 0 84 1.33 4 63 114 22 0 92 1.46 5 63 114 0 17 97 1.54 6 63 114 0 0 114 1.81 7 63 114 0 0 114 1.81 8 59 1 118 0 0 118 2.00 Total 457 1 985 236 17 732 1.60 BLDG 11 BDF 13 BDF 11 BDF 12 BDF 13 BDF Grand Total 898 2013 473 77 1463 units Avert Page 731 of 971 G I - North Parcel i PER LEVELS Level 1st Level 2"d Levels 3rd - 7th Level 8th TOTAL AREA LEASABLE AREA (NRSF) % TOTALS 110/1 B: ST 2 4 20 3 29 550 sf 15,950 sf 1 6.6% T& 1BDR + DEN: Al 1 6 35 6 48 793 sf 38,064 sf AIM 1 14 70 13 98 749 sf 73,402 sf 48.1% A2 0 4 20 4 28 698 sf 19,544 sf 46.0% B1 2 3 20 4 29 950 sf 27,550 sf R: B2 1 3 15 3 22 980 sf 21,560 sf C1 2 3 15 3 23 1,083 sf 24,909 sf 37.9% C2 5 16 85 16 122 1,156 sf 141,032 sf R: D1 0 1 5 1 7 1,341 sf 9,387 sf D2 0 5 25 5 35 1,461 sf 51,135 sf 9.5% per Level 14 59 310 58 age Unit Size 958 sf /Building 441 dus I 422,533 sf 100.0% G II - South Parcel i PER LEVELS" Level 1st Level 2nd Levels 3rd -7 th Level 8th TOTAL AREA LEASABLE AREA (NRSF) % TOTALS 110/1 B: ST 2 4 20 4 30 550 sf 16,500 sf 6.6% R &1BDR+ DEN: Al 0 10 55 11 76 793 sf 60,268 sf AIM 5 12 60 8 85 749 sf 63,665 sf 48.1% A2 0 4 20 4 28 698 sf 19,544 sf B1 3 4 20 4 31 950 sf 29,450 sf R: B2 1 1 5 1 8 980 sf 7,840 sf C1 1 9 1 45 9 64 1,083 sf 69,312 sf 38.9% C2 9 13 70 14 106 1,156 sf 122,536 sf R: D1 1 3 15 3 22 1,341 sf 29,502 sf D2 0 1 5 1 7 1,461 sf 10,227 sf 6.3% per Level 22 61 315 59 age Unit Size 938 sf /Building 457 dus 428,844 sf 100.0% (.evel, I Leve f 1 Lural Level Leveq Levd Level Lveq........ 7 Level Total l evel I evel I Total) Page 732 of 971 Provided Parking BLDG 11 (South Parcel) 9 STORY GARAGE ..5 9, STORY GARAGE Standard Compact HC Totall per Level 60 sp 8 sp 5 sp 73 sp 103 sp 11 sp sp 114 sp 96 sp 11 sp 3 sp 110 sp 101 sp 11 sp 2 sp 114 sp 101 sp 11 sp 2 sp 114 sp 101 sp 11 sp 2 sp 114 sp 101 sp 101 sp 11 sp 11 sp 2 sp 2 sp 114 sp 114 sp 105 sp 11 sp 2 sp 118 sp pub-Tbtal 869 sf 96 sf 20 sf Provided Ratio 985 sp 2.1 sp/unit 10028 sp 2.23 s�uni Provided Parking BLDG 11 (South Parcel) ..5 9, STORY GARAGE Standard Compact HC Totall per Level 60 sp 8 sp 5 sp 73 sp 103 sp 11 sp sp 114 sp 96 sp 11 sp 3 sp 110 sp 101 sp 11 sp 2 sp 114 sp 101 sp 11 sp 2 sp 114 sp 101 sp 11 sp 2 sp 114 sp 101 sp 101 sp 11 sp 11 sp 2 sp 2 sp 114 sp 114 sp 105 sp 11 sp 2 sp 118 sp pub-Tbtal 869 sf 96 sf 20 sf Provided Ratio 985 sp 2.1 sp/unit Page 733 of 971 01889373-1 52983123_1 EXHIBIT "D" SCHEMATIC DEPICTION OF PARKING SPACES 26 Page 734 of 971 NORTH GARAGE FLOOR 1: 54 CITY/PUBLIC 21 RESIDENT '1 NORTH GARAGE FLOOR 1.5: 120 CITY/PUBLIC Page 736 of 971 NORTH GARAGE FLOOR 2: 32 CITY/PUBLIC 83 RESIDENT NORTH GARAGE FLOOR 3: 31 CITY/PUBLIC 89 RESIDENT Page 738 of 971 .., ,,,,,, / ,,,:�,.e......:.... ,,,,,,,,., ,..p........ ....e.....,,,,,,,, t .............. ,,,,,,,,,,,,,;o. V V .....,,,,,,,,,,,,,,,, ,,. 1 .� 1 I 1 Page 738 of 971 NORTH GARAGE FLOOR 4: 32 COMMERCIAL 88 RESIDENT Page 739 of 971 NORTH GARAGE FLOOR 5: 28 COMMERCIAL 91 RESIDENI Page 740 of 971 Page 741 of 971 7 My Spaces 4 Resklent Spaces ..... .... .......... . .. ....... . ..... .... ............ ........... . .......... . 11 .......... .......... ................... ..................... SOUTH GARAGE FLOOR 1: . 33 RESIDENT . . ...... . ...... 40 CITY/PUBLIC ............... M I "IM—IT ......... .................. .. . ................... ........... ................... ...................... ............ .......... ............. ........................ .............. .................... ............... ...................... ................ ........................ ................. ........................ .................. ..................... . . ................ . ............ ............ I ............ ............. ........ - Ln .. ...... .................... Ent . . ................ . ........................... ........... - — .............................. ........... LLJ .............................. ............. ............ ................. . ..... ............... .. .. ...... Page 741 of 971 7 My Spaces 4 Resklent Spaces SOUTH GARAGE FLOOR 1.5: 114 CITY/PUBLIC Page 742 of 971 SOUTH GARAGE FLOOR 2: 30 CITY/PUBLIC 80 RESIDENT Page 743 of 971 SOUTH GARAGE FLOOR 3: 30 CITY/PUBLIC 84 RESIDENT Page 744 of 971 SOUTH GARAGE FLOOR 4: 22 CITY mit 92 RESIDENT A . ... ...... .... ...... .. ........ ... . . ...... m.. ...... . .. ....... I . jj ............. ... ....... ...... .............. . . . . . ........................ ............. . ............... . ........ . .............. Page 745 of 971 SOUTH GARAGE FLOOR 4: 17 COMMERCIAL 97 RESIDENT Page 746 of 971 EXHIBIT "E" CONFIRMATION OF COMMENCEMENT DATE PARKING LEASE AGREEMENT FOR THE NORTH GARAGE The parties hereto agree and confirm that the date of the Final Certificate of Occupancy for the North Garage has been issued, dated , 202. Pursuant to the definition of "Commencement Date" in paragraph 9(a)(ii) of the Parking Lease Agreement for the North Garage dated , 2023, the Commencement Date for the Term of the Parking Lease Agreement for the North Garage shall be , 202 . CITY: WITNESSES: Print Name: Print Name: 01889373-1 52983123_1 OWNER: 27 CITY OF BOYNTON BEACH Mayor BOYNTON BEACH TOWN CENTER APARTMENTS, LLC, a Florida limited liability company By: Name: Title: Page 747 of 971 01889367-1 EXHIBIT H Utility Capacity Confirmation and Reservation Letter -33- Page 748 of 971 February 17, 2023 BOYNTON BEACH UTILITIES 124 E. Woolbright Road Boynton Beach, Florida 33435 Office: (561) 742-6400 Fax: (561) 742-6298 Website: www.boynton-beach.org Mr. Robert Singer Time Equities, Inc. 55 Fifth Avenue, 15th Floor New York, NY 10003 RE: Town Square Dear Mr. Singer: Please accept this letter as confirmation that Boynton Beach Utilities will be the water and sewer service provider for the referenced project, sufficient treatment plant capacity exists, and potable water mains, sanitary sewer mains, wastewater lift station, and force mains are available within the project site. It is the developer's responsibility for connecting water and sewer service lines to each building. Utility capacity is reserved for the project for a period of six (6) years. Sincerely, BOYNTON BEACH UTILITIES D 101 C111 "7 Poonam Kalkat, PhD Utilities Director America's Gateway to the Gulfstream Page 749 of 971 01889367-1 EXHIBIT I Existing Infrastructure -34- Page 750 of 971 "'OYN FONI'I OVOIN S Q l j A Fl l kH, I I, d d 1, 1 I I I y [1�:,: I A H Kim ley,,,))Hoirin .... . ....... . Page 751 of 971 �: . . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . . . 7� I I I y [1�:,: I A H Kim ley,,,))Hoirin .... . ....... . Page 751 of 971 ° / 1w. 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I M. .2 "XI =M z r Zi m .1, r:7m RECORD DRAWING JOB #18 001 Men= ms o-xma R M �ATCHL|NE 3EE3HEETC6,O7 lie �ATCHL|NE 14 � �ATCHL|NE 3EE3HEETC6,O@ 52( IM k. 6.1A ..... ... .... 01889367-1 EXHIBIT J Settlement Agreement -35- Page 775 of 971 SETTLEMENT AGREEMENT AND FULL AND FINAL GENERAL RELEASE This Settlement Agreement and Full and Final General Release (the "Settlement Aul�reement' is entered into on this 12 day of qua , 2023 (the "Execution Date), between JKM BTS Capital, LLC, a Florida limited liability company ("JKM Capital"), JKM Developers, LLC, a Florida limited liability company ("JKM Developers"), JKM BTS North, LLC, a Florida limited liability company ("JKM North"), JKM BTS South, LLC, a Florida limited liability company ("JKM South"), JKM BTS Central, LLC, a Florida limited liability company ("JKM Central") (collectively, "JKM Parties"), and City of Boynton Beach, Florida, a municipal corporation of the State of Florida (including its officials, offices, commission, boards, departments, and divisions, the "f�tff') (the JKM Parties and the City are referred to each as a "Party." and collectively as the "Parties"). RECITALS WHEREAS, the JKM Parties and City desire to forever settle and resolve the disputes and potential obligations (the "Disputes") between and among them regarding and/or arising from any conversations, agreements, potential agreements, draft agreements, complaints, and/or contracts including, but not limited to: a. Development Agreement dated March 19, 2018, between JKM Capital and City (the "Development Agreement"); b. Purchase and Sale Agreement dated March 19, 2018, between JKM North and City (the "North Purchase Agreement"); C. Parking License Agreement dated March 19, 2018, between JKM North and City (the "North Parking, Ageement"); d. Option Agreement dated March 19, 2018, between JKM North and City (the "North Option Agreement'); e. Termination of Option Agreement dated December 18, 2018, between JKM North and City, and recorded at Official Records Book 30335 Page 0768 of the Public Records of Palm Beach County, Florida (the "North Option Termination Aueement"); f. Purchase and Sale Agreement dated March 19, 2018, between JKM Central and City (the "Central Purchase Agreement"}; g. Parking License Agreement dated March 19, 2018, between JKM Central and City (the "Central Parking Agreement"); h. Purchase and Sale Agreement dated March 19, 2018, between JKM South and City (the "South Purchase Agreement"); i. Parking License Agreement dated March 19, 2018, between JKM South and City (the "South Parking Agreement"); j. Option Agreement dated March 19, 2018, between JKM South and City (the "South Option Agreement"}; k. Termination of Option Agreement dated December 18, 2018, between JKM South and City, and recorded at Official Records Book 30335 Page 0773 of the Public Records of Palm Beach County, Florida (the "South Option Termination Ae;reement"); 100548043.1 306.903525) Page 776 of 974 1. Letter of Intent to lease/purchase the Boynton Beach Boulevard Mixed-use Land of Boynton Town Square Property, Boynton Beach, Florida from JKM Developers to City dated November 3, 2017 (the "LOI"); M. Letter Memorandum of Understanding — Parcels 1, 2, 3, and 4 of Boynton Beach Town Square from JKM North and JKM Central to City dated November 30, 2018 (the "MOU"); n. Letter from Colin D. Groff, Assistant City Manager, on behalf of the City, to JKM Capital, dated December 17, 2019, and all allegations contained or referenced therein (the "Groff Letter"): o. Temporary Parking Easement Agreement dated November 10, 2020, between JKM Capital, JKM North, and City, and recorded at Official Records Book 31962 Page 1434 of the Public Records of Palm Beach County, Florida (the "_North Temporary Parkinglasement"); P. Temporary Parking Easement Agreement dated November 10, 2020, between JKM Capital, JKM Central, and City, and recorded at Official Records Book 31962 Page 1449 of the Public Records of Palm Beach County, Florida (the "Central Temporary Parkin Ear"); and, q. The Complaint for Declaratory Relief, Case No. 2020 -CA -0 I 278OXXXXMB filed in Palm Beach County Circuit Court in West Palm Beach, Florida (the "Com 1I aint") and the corresponding legal proceedings (the "Lawsuit"). For purposes of this Agreement, items (a) through (k) of the foregoing list are referred to as the "Relevant Aeements," items (1) through (n) are referred to herein as the "Related Documents," items (o) and (p)) are referred to as the "Temporary Parking Easements," and all of ".�..........._................._ items (a) through (n) are referred to as the Documents„ WHEREAS, the Documents, the Complaint, and the Lawsuit relate to certain real estate now known as Parcels 2, 3, and 7, Boynton Beach Town Square, according to the plat thereof as recorded in Plat Book 127, Page 1, Public Records of Palm Beach County, Florida (collectively, the "BTS Parcels"), which were sold to certain of the JKM Parties by the City pursuant to terms set forth in certain of the Documents; and WHEREAS, to avoid the costs and expenses of litigating the Disputes and the uncertain costs surrounding the Disputes, and in order to allow for the applicable parties to proceed with development of the BTS Parcels and proceed with construction of improvements thereon, the Parties desire to compromise and settle the Disputes and all other obligations between and among the Parties as set forth in this Settlement Agreement; and WHEREAS, it is the desire of the Parties to terminate any and all existing contractual or other obligations between the JKM Parties and the City and/or any of their affiliates or subsidiaries in any transactions between or among any of them; and WHEREAS, it is the desire of the Parties to resolve the Disputes and any obligations between or among them without admitting fault or otherwise acknowledging liability of any kind in connection with the Disputes, or otherwise. 100548043.1 306-9905525 ) 2 Page 777 of 971 NOW, THEREFORE, in consideration of the recitals, covenants, general releases, and agreements contained in this Settlement Agreement, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereby agree as follows: 1. Recitals. All of the recitals set forth above are true and correct and are hereby incorporated into this Settlement Agreement. 2. Settlement Contm ;ent. The effectiveness of this Settlement Agreement, including the obligations to exchange the Consideration (as defined hereafter), including the payment of the Sale Payment (as defined hereafter) and the Incentive Payment (as defined hereafter), if any, is contingent upon the following conditions precedent: (a) the successful sale by one or more of the JKM Parties of the BTS Parcels (the "Sale", and the contract for such Sale, the "Contract"); (b) payment of the Sale Payment as set forth in Section 5; (c) the proposed purchaser (the "Purchaser") of the BTS Parcels pursuant to the Contract, and the City, have executed a new Development Agreement for the BTS Parcels (the "New DeveloLiment Agreement") which includes (or requires via separate document) a requirement for the Purchaser to provide to the City parking spaces (which may be used by the City for City purposes or for public parking purposes) in a location and amount reasonably acceptable to the City and the Purchaser; and (d) that the Temporary Parking Easements will be assigned or replaced effective simultaneously with the effectiveness of the New Development Agreement such that there shall be no interruption in the City's ability to use the applicable parking easement areas. For avoidance of doubt, in the event the Temporary Parking Easements are to be replaced (rather than assigned) in connection with the New Development Agreement, the Temporary Parking Easements shall not be terminated until such replacement agreements are fully executed and enforceable. The date on which the last of the requirements in Paragraphs 2(a), (b), (c), and (d) above have been fulfilled shall be referred to as the "Effective Date" herein. Notwithstanding the execution of this Settlement Agreement, the Parties have not agreed to stay any proceedings under the Lawsuit and/or with respect to the Complaint, and the Parties contemplate that the Lawsuit will proceed unless and until the Effective Date has occurred or the Lawsuit has been dismissed by the City, with or without prejudice. Notwithstanding anything to the contrary in this Settlement Agreement, if at any time the Contract shall be terminated by any party thereto, the JKM Parties shall promptly advise the City of such termination in writing (the "Termination Notice"), and upon delivery of the Termination Notice, neither party shall thereafter have any further obligation under this Settlement Agreement (but the same shall not serve to negate or invalidate any representation or warranty given by any party pursuant to this Settlement Agreement). 3. Dismissal. Within five (5) business days following the Effective Date as hereafter set forth in Section 5(a), the Parties shall file a joint stipulation of dismissal with prejudice of all {00548043.1 306-9905525 } Page 778 of 971 claims pending in the Lawsuit, with each Party to bear their own fees and costs, and with the Court in which the Lawsuit is pending to retain jurisdiction to enforce the terms of this Settlement Agreement. 4. Consideration. The parties, by the terms of this Settlement Agreement, have agreed to the exchange of consideration in the form of the Sale Payment, the Incentive Payment, the agreements regarding the Terminated Agreements (as defined below) and the Terminated Obligations (as defined below), the general releases set forth in this Settlement Agreement, and the other representations, warranties, covenants and other provisions set forth in this Settlement Agreement (all of the foregoing, the "Consideration"). Each of the Parties hereto acknowledges and agrees that, as applicable, the portion of the Consideration it will receive is sufficient in exchange for the applicable portion of the Consideration it will provide to the other Parties. The Parties hereby acknowledge and agree that the exchange set forth in this Settlement Agreement reflects a mutual compromise and constitutes an exchange of valuable consideration. Each of the Parties agrees that this is a material inducement to the other Parties entering into this Settlement Agreement. 5. Settlement Payments. (a) Upon closing of the Sale of all of the BTS Parcels, the JKM Parties will cause the closing agent with respect to such Sale to pay from the closing proceeds of the Sale to the trust account of the City's attorneys, Goren Cherof Doody & Ezrol, P.A., on behalf of and for the benefit of City, the total sum of Four Million Five Hundred Thousand Dollars and No Cents ($4,500,000.00) (the "Sale Payment") in U.S. currency via wire transfer in accordance with the wire transfer instructions to be later provided by the City. (b) As a further incentive and strictly as an accommodation to the City, the JKM Parties agree to pay to the trust account of the City's attorneys, Goren Cherof Doody & Ezrol, P.A. (the "City Attomeys"), on behalf of and for the benefit of the City, subject to the further terms of this Section 5(b), one or more payments totaling no more than One Hundred Thousand Dollars and No Cents ($100,000.00) (all such payments collectively, the "Incentive Pa dent") in U.S. currency via wire transfer in accordance with the wire transfer instructions to be later provided by the City. The Incentive Payment is to be used to defray the fees and costs incurred by the City from and after the Execution Date in defending that certain lawsuit styled E2L Real Estate Solutions, LLC v. City of Boynton Beach, JKM Developers, LLC, et al., Case No. 50 -2022 -CA - 006010 (15th Judicial Circuit in and for Palm Beach County, Florida) (the "B2L Lawsuit"). At any time after the Effective Date, the City may present to the JKM Parties a notice (each, an "Incentive Pavy inent Notice") requesting an amount equal to the sum of the fees and costs incurred by the City between the Execution Date and the date of such Incentive Payment Notice and not previously presented for payment, and so long as the City supplies copies of law firm invoices evidencing the amount sought in such Incentive Payment Notice (which law firm invoices may be redacted by the City to protect attorney-client privileged information), the JKM Parties will pay the amount shown on such Incentive Payment Notice (or such lesser amount as would not cause the aggregate amount of all payments made by JKM Parties with respect to Incentive Payment Notices to exceed $100,000.00) to the trust account of the City Attorneys, in the manner provided for above, within fifteen (15) days of their receipt of such Incentive Payment Notice. This procedure will be repeated no more frequently than monthly after the first Incentive Payment 100548043.1 306-9905525 } 4 Page 779 of 971 Notice has been delivered, and the JKM Parties will continue to pay the amount requested in each subsequent Incentive Payment Notice within fifteen (15) days after receipt thereof until the earlier of (a) the aggregate amount of all payments made by the JKM Parties with respect to Incentive Payment Notices equals $100,000.00, or (b) the E2L Lawsuit has fully and finally concluded. For purposes of clarity, in no event will the JKM Parties ever be obligated to pay the City an amount greater than $100,000.00 in the aggregate under this Section 5(b), and should the E21, Lawsuit be fully and finally concluded prior to the City incurring $100,000.00 in fees and costs defending the EM Lawsuit, the JKM Parties will only be obligated to reimburse the City for the amount actually incurred, even though such amount is less than $100,000.00. Furthermore, any attempt to deliver an Incentive Payment Notice prior to the occurrence of the Effective Date shall have no effect, and the JKM Parties shall not have any obligation to make any payment with respect to any such attempted notice. (c) The City's attorneys shall be authorized to release the Sale Payment and the Incentive Payment to City only upon the filing of the Joint Stipulation of Dismissal described in Paragraph 3 of this Settlement Agreement. (d) For the avoidance of doubt, the Sale Payment and the Incentive Payment, if any, shall only become due and payable, if ever, following satisfaction of all conditions set forth in Section 2 of this Settlement Agreement. 6. Termination of Relevant Agreements. Effective from and after the Effective Date, the Parties do hereby terminate, release, extinguish, discharge, and waive any and all present and/or continuing duties and obligations of or between the City and the JKM Parties, whether oral or in writing, if any, related to or arising from or in connection with the Relevant Agreements, the Related Documents, or otherwise (collectively, the "Terminated Agreements"). From and after the Effective Date of this Settlement Agreement, the Terminated Agreements shall have no further force and effect. 7. The Terminated.Obligations. The Parties hereby agree that, with the exception of the continuing obligations set forth in this Settlement Agreement that survive after the Effective Date, effective from and after the Effective Date, all present and/or continuing duties and obligations of the City to the JKM Parties, or of the JKM Parties to the City, as applicable, under any contract or agreement they previously had or presently have with one another as of the execution of this Settlement Agreement, whether oral or in writing, if any, including, but not limited to, the Terminated Agreements (collectively, the "Terminated Obliations"), are hereby fully and forever fulfilled, extinguished, terminated, released, waived, and discharged without any further action by the Parties. 8. Temorar Parking Easements,. City warrants and represents to JKM Parties that (i) the Temporary Parking Easements are not subject to any credits, charges, claims, defenses, or rights of offset or deduction of any kind or character whatsoever; and (ii) there do not exist with respect to the Temporary Parking Easements any defaults or circumstances which, with the passage of time, would constitute defaults under the terms of such Temporary Parking Easements. City releases and discharges JKM Parties from any and all claims and causes of action under the Temporary Parking Easements, whether known or unknown and whether now existing or hereafter arising, that have at any time been known, or that are hereafter known, in tort or in contract by the 100548043.1 306-9905525 i 5 Page 780 of 971 City and that arise out of any one or more circumstances or events that occurred prior to the date of this Settlement Agreement. 9. No Other Pave ent or Com )ensation Due. The Parties agree that, other than the Sale Payment, the Incentive Payment (if any), and any other Consideration to be exchanged as specifically set forth in this Settlement Agreement effective from and after the Effective Date: (i) the City, and each of its current and former elected officials in their official capacities, principals, officers, directors, members, managers, partners, shareholders, employees, parent companies, subsidiaries, affiliates, agents, enrollers, attorneys, trustees, accountants, insurers, predecessors, successors, assigns, relatives, and representatives of any kind do not owe any amounts or sums to the JKM Parties of any kind or type, including, without limitation, taxes, attorneys' fees, costs, expenses, and/or damages; and (ii) the JKM Parties, and each of their current and former principals, officers, directors, members, managers, partners, shareholders, employees, parent companies, subsidiaries, affiliates, agents, enrollers, attorneys, trustees, accountants, insurers, predecessors, successors, assigns, relatives, and representatives of any kind do not owe any amounts or sums to the City of any kind or type, including, without limitation, taxes, attorneys' fees, costs, expenses, and/or damages. 10. Tolling. The Parties agree that any statute of limitations relating to any claims against each other, including, but not limited to, any claims by either Party against the other Party for breach of the Development Agreement, shall be tolled as of the Execution Date until the earlier of (a) the Sale and the payment of the Sale Payment provided for in Section 5(a), or (b) two months after delivery of the Termination Notice; or (c) 12 months from the Execution Date. 11. General Release of the City. Effective from and after the Effective Date, in exchange for the Consideration set forth in this Settlement Agreement, each of the JKM Parties, and their current and former members, managers, officers, directors, partners, agents, employees, contractors, consultants, heirs, administrators, executors, attorneys, consultants, trustees, accountants, insurers, predecessors, successors, assigns, and representatives of any kind, if any, and for all those who may have the right to claim by, through, or under them or on their behalf in any form of derivative or representative action, shall and hereby do generally release, acquit, and forever discharge the City, jointly and individually as to each of them, together with their respective current and former elected officials, principals, officers, directors, partners, members, managers, shareholders, employees, agents, parent companies, subsidiaries, affiliates, attorneys, trustees, trusts, trustors, settlors, accountants, insurers, predecessors, successors, assigns, relatives, and representatives of any kind (collectively, the "City Released Parties"), from and against any and all liability which they now have, have had, or may have, and from all claims, demands, liens, actions, administrative proceedings, and causes of action of every kind and nature, and from all damages, injuries, losses, contributions, indemnities, compensation, obligations, costs, attorneys' fees, and expenses of every kind and nature whatsoever, whether known or unknown, fixed or contingent, direct or indirect, whether in law or in equity, whether asserted or unasserted, whether sounding in tort or in contract, whether or not related to or arising from the BTS Parcels, the Documents, the Disputes, the Terminated Agreements, the Terminated Obligations, or issues that were raised or could have been raised in the Lawsuit, including, but not limited to, causes of action for violation of any state, federal, or international statutes, rules, or regulations, including, but not limited to, the laws of Florida, conversion, breach of contract, breach of third -party beneficiary contract, prima facie tort, bad faith, fraud, intentional fraud, constructive fraud, fraudulent (00548043.1 306-9905525 ) 6 Page 781 of 971 inducement, misrepresentation, fraudulent misrepresentation, intentional misrepresentation, negligent misrepresentation, false advertising, marketing fraud, bad faith refusal to pay, bad faith refusal to investigate, an accounting, declaratory judgment, unjust enrichment, deceptive advertising and/or unfair or unlawful trade practices, failure of consideration, rescission, failure to disclose, commissions, suppression, fraudulent suppression, fraudulent concealment, concealment, conspiracy, civil conspiracy, pattern and practice, racketeering, fraudulent non- disclosure, breach of the duty of good faith and fair dealing, breach of fiduciary and trust duties, promissory estoppel, negligence, negligence per se, breach of implied contract, professional negligence, gross negligence, defamation, slander, libel, disparagement, wantonness, punitive damages, or any other tort or contract claim, any violation of any state or federal law, any claim that any of the JKM Parties were fraudulently induced to enter into this Settlement Agreement or any other claim related to any of the JKM Parties' execution of this Settlement Agreement or to the BTS Parcels, the Documents, the Disputes, the Terminated Agreements, the Terminated Obligations, and/or any understanding or agreement or interaction between the Parties, whether written or oral (the "General Release of the Cit/11). The General Release of the City is specifically intended to include and does include claims that the JKM Parties might not now know or expect to exist in their favor as of the execution of this Settlement Agreement, even if knowledge of such claims might have otherwise materially affected the granting of this General Release of the City. The JKM Parties represent and warrant that the General Release of the City is executed and delivered by each of them based upon their respective independent analyses of the facts and circumstances. The JKM Parties specifically acknowledge that such facts might hereafter prove to be different from the facts that are known or believed to exist. The JKM Parties expressly assume the risk that any state of facts might be different from those thought to exist by such Party or Parties or that such state of facts might hereafter change. The JKM Parties agree that the terms of the General Release of the City will be binding in all respects notwithstanding any mistake of existing facts or subsequent change of facts, and this General Release of the City shall not be subject to termination or rescission by the JKM Parties for any reason whatsoever. The General Release of the City is intended to be a full release of all of the JKM Parties' claims known and unknown. NOTWITHSTANDING THE FOREGOING, nothing in this Settlement Agreement is intended to release, and nothing in this Settlement Agreement shall release, any claims which arise under the terms of this Settlement Agreement. 12. General Release ofmthe mITJKM Parties. Effective from and after the Effective Date, in exchange for the consideration set forth in this Settlement Agreement, each of the City and its current and former elected officials in their official capacities, members, managers, officers, directors, partners, agents, employees, contractors, consultants, heirs, administrators, executors, attorneys, consultants, trustees, accountants, insurers, predecessors, successors, assigns, and representatives of any kind, if any, and for all those who may have the right to claim by, through, or under them or on their behalf in any form of derivative or representative action, shall and hereby do generally release, acquit, and forever discharge the JKM Parties, jointly and individually as to each of them, together with their respective current and former principals (including, without limitation, Adam P. Freedman, James S. Gielda, Jeff Johnson, Brady Hooker, and John K. Markey), officers, directors, partners, members, managers, shareholders, employees, agents, parent companies, subsidiaries, affiliates, attorneys, consultants, trustees, trusts, trustors, settlors, 100548043.1 306-9905525 ) Page 782 of 971 accountants, insurers, predecessors, successors, assigns, relatives, and representatives of any kind (collectively, the "JK'M Relmeased Parties"), from and against any and all liability which they now have, have had, or may have, and from all claims, demands, liens, actions, administrative proceedings, and causes of action of every kind and nature, and from all damages, injuries, losses, contributions, indemnities, compensation, obligations, costs, attorneys' fees, and expenses of every kind and nature whatsoever, whether known or unknown, fixed or contingent, direct or indirect, whether in law or in equity, whether asserted or unasserted, whether sounding in tort or in contract, whether or not related to or arising from the BTS Parcels, the Documents, the Disputes, the Terminated Agreements, the Terminated Obligations, or issues that were raised or could have been raised in the Lawsuit, including, but not limited to, causes of action for violation of any state, federal, or international statutes, rules, or regulations, including, but not limited to, the laws of Florida, conversion, breach of contract, breach of third -party beneficiary contract, prima facie tort, bad faith, fraud, intentional fraud, constructive fraud, fraudulent inducement, misrepresentation, fraudulent misrepresentation, intentional misrepresentation, negligent misrepresentation, false advertising, marketing fraud, bad faith refusal to pay, bad faith refusal to investigate, an accounting, declaratory judgment, unjust enrichment, deceptive advertising and/or unfair or unlawful trade practices, failure of consideration, rescission, failure to disclose, commissions, suppression, fraudulent suppression, fraudulent concealment, concealment, conspiracy, civil conspiracy, pattern and practice, racketeering, fraudulent non -disclosure, breach of the duty of good faith and fair dealing, breach of fiduciary and trust duties, promissory estoppel, negligence, negligence per se, breach of implied contract, professional negligence, gross negligence, defamation, slander, libel, disparagement, wantonness, punitive damages, or any other tort or contract claim, any violation of any state or federal law, any claim that the City or any of its affiliates were fraudulently induced to enter into any of the Documents, this Settlement Agreement or any other claim related to the City's execution of this Settlement Agreement, or to the BTS Parcels, the Documents, the Disputes, the Terminated Agreements, the Terminated Obligations, and/or any understanding or agreement or interaction between the Parties, whether written or oral (the "General Release of the JKM Parties"). The General Release of the JKM Parties is specifically intended to include and does include claims that the City might not now know or expect to exist in their favor as of the execution of this Settlement Agreement, even if knowledge of such claims might have otherwise materially affected the granting of this General Release of the JKM Parties. The City represents and warrants that the General Release of the JKM Parties is executed and delivered by each of them based upon their respective independent analyses of the facts and circumstances. The City specifically acknowledges that such facts might hereafter prove to be different from the facts that are known or believed to exist. The City expressly assumes the risk that any state of facts might be different from those thought to exist by such Party or Parties or that such state of facts might hereafter change. The City agrees that the terms of the General Release of the JKM Parties will be binding in all respects notwithstanding any mistake of existing facts or subsequent change of facts, and this General Release of the JKM Parties will not be subject to termination or rescission by the City for any reason whatsoever. The General Release of the JKM Parties is intended to be a full release of all claims known and unknown. NOTWITHSTANDING THE FOREGOING, nothing • in this Settlement Agreement is intended to release, and nothing in this Settlement Agreement shall release, any claims which arise under the terms of this Settlement Agreement. 100548043.1 306-9905525 1 8 Page 783 of 971 13. Rei-iresentationswand wwWarranties by the Parties. (a) Bir J_ _Pwarties. The JKM Parties hereby represent and warrant that (i) they are not relying upon any statements, understandings, representations, expectations, or agreements other than those expressly set forth in this Settlement Agreement, (ii) they have been represented and advised by counsel in connection with this Settlement Agreement, which each of them has executed voluntarily and of its own choice and not under coercion or duress, (iii) they have made their own investigation of the facts and are relying upon their own knowledge "and the advice of legal counsel, (iv) they have no expectation that any of the other Parties will disclose facts material to the Settlement Agreement, and (v) they knowingly waive any claim that the Settlement Agreement was induced by any misrepresentation or non -disclosure and any right to rescind or avoid the Settlement Agreement based upon presently existing facts, known or unknown. The JKM Parties agree and stipulate that the City are relying upon these representations and warranties in entering into the Settlement Agreement. (b) By CitX. The City hereby represents and warrants that (i) it is not relying upon any statements, understandings, representations, expectations, or agreements other than those expressly set forth in this Settlement Agreement, (ii) it has been represented and advised by counsel in connection with this Settlement Agreement, which each of them has executed voluntarily and of its own choice and not under coercion or duress, (iii) it has made their own investigation of the facts and are relying upon their own knowledge and the advice of legal counsel, (iv) it has no expectation that any of the other Parties will disclose facts material to the Settlement Agreement, and (v) it knowingly waive any claim that the Settlement Agreement was induced by any misrepresentation or non -disclosure and any right to rescind or avoid the Settlement Agreement based upon presently existing facts, known or unknown. The City agrees and stipulates that JKM Parties are relying upon these representations and warranties in entering into the Settlement Agreement. 14. No Admission of Fault or Liability;. This Settlement Agreement is made to settle any and all controversies, real or potential, asserted or unasserted, and claims for injuries or damages of any nature whatsoever, real or potential, asserted or unasserted, by the Parties including but not limited to those relating in any way to the BTS Parcels, the Lawsuit, the Disputes, the Documents, the Terminated Agreements, the Terminated Obligations, or to the matters described herein or therein. Neither the execution and delivery of this Settlement Agreement, nor compliance with its terms, shall constitute an admission of any fault or liability on the part of any of the Parties, or any of their respective members, managers, officers, directors, partners, agents, employees, contractors, consultants, heirs, administrators, executors, attorneys, consultants, trustees, accountants, insurers, predecessors, successors, assigns, and representatives of any kind. None of the Parties to this Settlement Agreement admit fault or liability of any sort and, in fact, all Parties expressly deny fault and liability. 15. The Parties' Covenant Not to Sue. With respect to the subject matter herein each of the foregoing releasing Parties (each as applicable, the "Releasor"), with respect to any of the actions or causes of action, suits, claims, charges, complaints, contracts, and promises, whatsoever, in law or equity released pursuant to Paragraphs 11 or 12, as applicable (collectively, "Claims"), waives its right to file any charge or complaint nor will it accept any relief or recovery from any charge or complaint before any federal, state or local administrative agency against any of the {00548043.1 306-9905525 } 9 Page 784 of 971 foregoing released parties (each as applicable, the "Releasee"), except as such waiver is prohibited by statute. Each Releasor further waives all rights to file, with respect to the subject matter herein, any action before any federal, state, or local court against any Releasee. Each Releasor confirms that as of the date of this Settlement Agreement, such Releasor has brought no charge, complaint, or action in any forum or form against any Releasee, other than the Lawsuit with respect to the Complaint, which the City has covenanted to dismiss with prejudice in accordance with the terms of Section 3 of this Settlement Agreement. Except as prohibited by statute, in the event that any such Claim is filed, it shall be dismissed with prejudice upon presentation hereof, and the applicable Releasor(s) shall reimburse the applicable Releasee(s) for the costs, including attorneys' fees, of defending any such action. Each Releasor agrees not only to release each Releasee from any and all Claims which it could make on its own behalf with respect to the subject matter hereof, but also those which may be made by any other person or organization on its behalf. Each Releasor further waives any right to in any way voluntarily assist any individual or entity in commencing or prosecuting any action or proceeding with respect to the subject matter hereof, including, but not limited to, any administrative agency Claims, charges or complaints and/or any lawsuit against any Releasee, or to in any way voluntarily participate or cooperate in any such action or proceeding with respect to the subject matter hereof, except as such waiver is prohibited by statute. 16. Covenant Not to Interfere with Sale. In regard to the Sale and any associated activities or transactions, w ................_._.—. hether prior to or after the closing of such Sale, the City, either directly or indirectly, including through any of the City's elected officials, contractors, consultants, employees, agents, attorneys, or other representatives, shall not: (a) take any action, or raise any objection in any forum whatsoever, which is intended to or has the effect of terminating, delaying, postponing, invalidating, or otherwise interfering with the transactions contemplated with respect to the Sale, or (b) make any effort to contact or solicit or otherwise seek to induce any person, court, receiver, trustee, governmental or quasi -governmental agency or official, or any other party in any manner involved with or having any role or influence with respect to the Sale: (x) to breach, in whole or in part, any of its agreements with respect to the Sale; (y) not to consummate any transactions or take any actions necessary with respect to the BTS Parcels or in connection with the Sale; or (z) to otherwise interfere in any manner with respect to the BTS Parcels or the Sale. For the avoidance of doubt, the foregoing is not intended to limit the ability of the City to negotiate with any proposed buyer under the Sale upon such terms and for such conditions as the City may desire in its sole and absolute discretion. 17. Voluntga Agreement. The Parties acknowledge that they have carefully read this Settlement Agreement and understand all of its terms and furthermore acknowledge that this Settlement Agreement is executed voluntarily, without duress, and with full knowledge of its legal significance. Each Party represents and warrants that it has consulted with its legal advisors regarding the meaning, effect and advisability of this Settlement Agreement to the extent such Party has determined such consultation to be necessary or appropriate. 18. Authoritv, to Settle and Release. As a condition precedent to any obligations or liabilities of the Parties, each of the JKM Parties expressly represents and warrants to the City Released Parties that (a) as applicable, it is the lawful owner of the BTS Parcels and/or any claims and/or any potential claims released in this Settlement Agreement; (b) it has full capacity and authority to settle, compromise, and release its claims and potential claims and to enter into this Settlement Agreement; (c) no other person or entity has acquired or has been assigned, or will in (00548043.1 306-9905525 ) 10 Page 785 of 971 the future acquire or have any right to assert, against any of the City Released Parties any portion of its claims or potential claims released in this Settlement Agreement; and (d) it knows of no other person or entity that intends to assert a claim by, through, under, or on behalf of any of them. As a condition precedent to any obligations or liabilities of the Parties, the City expressly represents and warrants to the JKM Released Parties that (a) it is the lawful owner of the claims and the potential claims released in this Settlement Agreement; (b) it has full capacity and authority to settle, compromise, and release its claims and potential claims and to enter into this Settlement Agreement; (c) no other person or entity has acquired or has been assigned, or will in the future acquire or have any right to assert, against any of the JKM Released Parties any portion of its claims or potential claims released in this Settlement Agreement; and (d) it knows of no other person or entity that intends to assert a claim by, through, under, or on behalf of any of them. 19. Attorne m's Fees, Expenses. and Costs. (a) Disputes and Negotiation of Settlement ITAgreement. The Parties agree that each Party shall be solely responsible for its own respective fees, attorney's fees, expenses, and other costs incurred in connection with the Disputes and the preparation, drafting, and negotiation of this Settlement Agreement. (b) Enforcement of Settlement wA [ggmegt. In conjunction with any litigation arising out of or concerning the interpretation of or enforcement of this Settlement Agreement, the prevailing party shall be entitled to recover from the non -prevailing party its reasonable attorney's fees, expenses, and costs, whether incurred before, during or after trial, on appeal or in conjunction with administrative, post judgment, or bankruptcy proceedings, including attorney's fees and costs included during any appeals. 20. Remedies. The parties agree that any action taken in contravention or violation of this Settlement Agreement (including, without limitation, any act prohibited pursuant to either Section 15 or Section 16) or any other breach or violation of this Settlement Agreement will cause irreparable harm and significant injury to the other Parties, as applicable, the amount of which will be extremely difficult to determine, thus making any remedy at law or in damages inadequate. Therefore, the parties agree that any Party and/or any applicable affiliate(s) shall have the right to apply to any court of competent jurisdiction for an order restraining any breach or threatened breach by any other Party of this Settlement Agreement and for any other relief deemed appropriate, and any Party seeking such an order will not be obligated to post bond or other security in seeking such relief. This right shall be in addition to any other remedy available to the Party seeking such order or relief, whether in law or equity. Notwithstanding the foregoing, nothing in this Settlement Agreement shall be considered a waiver of the City's rights of sovereign immunity. 21. Governin�Law. This Settlement Agreement shall be governed by and construed according to the laws of the state of Florida. 22. Venue. With respect to any suit, action or proceeding relating to a dispute regarding enforcement of the terms of this Settlement Agreement ("Actions"), each party to this Settlement Agreement irrevocably submits to the exclusive jurisdiction of the state and federal courts located in or presiding over Palm Beach County, Florida, and each party to this Settlement Agreement hereby waives any objection which it may have at any time to the laying of venue of any Actions 100548043.1 306-9905525 ) I 1 Page 786 of 971 brought in any such court, waives any claim that such Action has been brought in an inconvenient forum and further waives the right to object with respect to such Action that such court does not have jurisdiction over such party. 23. Reliance onm Representations. Each Party hereby warrants, represents, and agrees that each Party is relying upon only the representations and warranties contained in this Settlement Agreement in entering into this Settlement Agreement and that no other representations have been made by anyone upon which they are relying in executing this Settlement Agreement. All of the covenants, representations, and warranties set forth in this Settlement Agreement shall survive the execution of this Settlement Agreement indefinitely. 24. Further Assurances. The Parties shall execute, acknowledge, deliver, or cause to be executed, acknowledged, or delivered, all further documents as shall be reasonably necessary or convenient to carry out the provisions of this Settlement Agreement. 25. Entire Ag iBement and Inte r;aL ion Clause. This Settlement Agreement contains all agreements and understandings of any sort or character between the Parties concerning the subject matter of the Settlement Agreement and any other dealings between the Parties and supersedes all prior negotiations, discussions, or agreements of any sort whatsoever, whether oral or written, relating to the BTS Parcels, the Lawsuit, the Disputes, the Documents, the Terminated Agreements, the Terminated Obligations, or any claims that might ever be made by one Party against any opposing Party. There are no representations, agreements, or inducements, except as set forth expressly and specifically in this Settlement Agreement. THERE ARE NO UNWRITTEN OR ORAL UNDERSTANDINGS, AGREEMENTS, OR REPRESENTATIONS OF ANY SORT WHATSOEVER, IT BEING STIPULATED THAT THE RIGHTS OF THE PARTIES HERETO AGAINST ANY OPPOSING PARTY HERETO SHALL BE GOVERNED EXCLUSIVELY BY THIS SETTLEMENT AGREEMENT. 26. Seyerability. If any provision hereof is invalid or unenforceable, then, to the fullest extent permitted by law, the other provisions hereof shall remain in full force and effect and there shall be deemed substituted for the provision at issue a valid, legal, and enforceable provision as similar as possible to the provision at issue in order to carry out the intentions of the Parties hereto as nearly as may be possible. 27. Notices. Any notice, request, instruction, or other document or communication required or permitted to be given under this Settlement Agreement shall be in writing and shall be deemed given (i) upon receipt if delivered in person or by a messenger or courier service; (ii) upon being transmitted by confirmed facsimile or other wire transmission; or (iii) three business days after being deposited in the U.S. mail, certified or registered, return receipt requested, postage prepaid, addressed as follows: {00548043.1 306-9405525 1 12 Page 787 of 971 or to such other address or addresses as may be specified in writing from time to time by any Party to the other Parties. 28. Amendments in Writino. This Settlement Agreement may only be amended or modified by a written instrument that has been executed by the Party sought to be charged with such amendment, modification, or waiver. No waiver of any breach of this Settlement Agreement shall be construed as an implied amendment or agreement to amend or modify any provision of this Settlement Agreement. 29. Non Waiver. The failure by any of the Parties to enforce at any time, or for any period of time, any one or more of the terms or conditions of this Settlement Agreement, or a course of dealing between the Parties, shall not be a waiver of such terms or conditions or of such Party's right thereafter to enforce each and every term and condition of this Settlement Agreement. 30. Consultation with Attorneys. (a) JKM..Part ies. Each of the JKM Parties understands and acknowledges that this Settlement Agreement contains a General Release of the City of any and all claims that any of the JKM Parties may have against the City Released Parties, and each of the JKM Parties understands and acknowledges that it has had the opportunity to retain independent counsel to represent it in connection with its consideration of such release and of this Settlement Agreement and has done SO. (b) City. The City understands and acknowledges that this Settlement Agreement contains a General Release of the JKM Parties of any and all claims that the City may have against the JKM Released Parties, and the City understands and acknowledges that it has had the opportunity to retain independent counsel to represent it in connection with its consideration of such release and of this Settlement Agreement and has done so. (c) Investi,aton bw Parties. The Parties represent and warrant that each of them has undertaken its own investigation of the facts and is relying solely upon its own knowledge and the advice of counsel. (d) Stipulation. The Parties further represent and warrant to each other that they have each consulted with independent counsel and other advisors with respect to the preparation, negotiation, and execution of this Settlement Agreement to the extent they deemed such consultation necessary or appropriate, and have been provided with a reasonable period of time to consider and execute this Settlement Agreement. The Parties, therefore, stipulate and agree that this Settlement Agreement shall not be construed against any Party as the drafter thereof. 31. Joint Drafting. The Parties agree that they have jointly participated in the drafting and preparation of this Settlement Agreement, and that the language in this Settlement Agreement shall be construed according to its fair meaning and not strictly for or against any Party. All provisions of this Settlement Agreement have been negotiated by the Parties at arms' length, and no Party shall be deemed the scrivener of this Settlement Agreement. The Parties agree and direct that the rule of contract construction providing that ambiguous contract terms should be interpreted against the drafting party shall not apply nor be applied to this Settlement Agreements. '00548043.1306 } 13 Page 788 of 971 32. Construction. Words in this Settlement Agreement of the male, female, or neuter gender shall be construed to include any other gender where appropriate. Words used in this Settlement Agreement that are either singular or plural shall be construed to include the other where appropriate. 33. Hetes. Headings are for convenience only and shall not limit, expand, affect, or alter the meaning of any text. 34. Mutti ale CounteIT�Iarts. This Settlement Agreement may be signed in multiple counterparts and, when each Party has signed a counterpart hereof, each such counterpart shall be a binding and enforceable agreement as an original. 35. Facsimile Si,atures. This Settlement Agreement may be executed by electronic signature, or by facsimile or other electronically transmitted signature, and such facsimile signatures will be deemed to be as valid as an original signature whether or not confirmed by delivering the original signatures in person, by courier or by mail, although it is the Parties' intentions to exchange original signatures. 36. Exhibits. All Exhibits to this Settlement Agreement are expressly incorporated herein by reference. 37. Bindin- onSuccessorsand Assi s. This Settlement Agreement and each exhibit hereto shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and assigns, and is enforceable against them in accordance with its terms. Notwithstanding the foregoing, no Party hereto may assign any of its rights or obligations hereunder without the written consent of all of the other Parties. EACH OF THE UNDERSIGNED HAS CAREFULLY READ THE FOREGOING SETTLEMENT AGREEMENT AND FULL AND FINAL GENERAL RELEASE, KNOWS THE CONTENTS THEREOF, AND SIGNS THE SAME AS ITS OWN FREE ACT. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] {00548043.1 306-9905525 ) 14 Page 789 of 971 IN WITNESS WHEREOF, I have hereunto set my hand and seal this . ----- �............. 2023. CITY OF BOYNTON BEACH TY STATE OF FLORIDA COUNTY OF PALM BEACH "S. day of The foregoing instrument was acknowledged before me by means of physical presence or El online notarization this , day of .... 94Xy, 2023, by Ty Penserga as Mayor of the CITY personally pp p y ... OF BOYNTON BEACH. He/She appeared before me, is ��aersonally known to me or produced .._-_„ .....ww... — as identification. WCOW�a4#m lam t' :* EXPIRES Nwe*V 1T, 20 :� � 11wN�f►� . Bonded (00548043.1 306-9905525 ) NOT re N ne Notary Public, State of My Commission Expires: / R-67" Notary Seal: 15 Page 790 of 971 IN WITNESS WHEREOF, I have hereunto set my hand and seal this 92. day of January, 2023. STATE OF FLORIDA COUNTY OF PALM BEACH JKM BTS CENTRAL, LLC, a Florida limited liability company By: JKM BTS CAPITAL, LLC, a Florida limited liability company, its Manager The foregoing instrument was acknowledged before me by means of 10 physical presence or ❑ online notarization this 12- day of January, 2023, by John K. Markey, as Manager of JKM BTS CAPITAL, LLC, a Florida limited liability company, the Manager of JKM BTS _CELN11-j! LLC, a Florida limited liability company. He personally appeared before me, i personally known to me, or produced as identification. N TARP) Si t ... L. , ohs ;on Printed Name Notary Public, State ofL _ My Commission Expires: hZ 2026 Notary Seal: =Notaryate of Floridasonn26 Page 791 of 971 2023. IN WITNESS WHEREOF, I have hereunto set my hand and seal this I � day of January, JKM BTS SOUTH, LLC, a Florida limited liability company By: JKM BTS CAPITAL, LLC, a Florida limited liability company, its Manager By. Jot Markey, Manager STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me by means of ® physical presence or ❑ online notarization this 19, day of January, 2023, by John K. Markey, as Manager of JKM BTS CAPITAL, LLC, a Florida limited liability company, the Manager of JKM BTS L1T LLC, a Florida limited liability company. He personally appeared before me, i ersonally known to me, or produced as identification. RUIVRIVEW ( jj e W B x+ Si at > J Johricon Printed Name Notary Public, State of FL, My Commission Expires: 6 1c�Z Notary Seal: Notary Public State of Florida Jeff L Johnson MyCommission Illl HH 261757 Exp. 6/12/2026 Page 792 of 971 2023. IN WITNESS WHEREOF, I have hereunto set my hand and seal this E2. day of January, JKM BTS NORTH, LLC, a Florida limited liability company By: JKM BTS CAPITAL, LLC, a Florida limited liability company, its Manager John arkey, iVlanager STATE OF FLORIDA � COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me by means of R physical presence or ❑ online notarization this 12- day of January, 2023, by John K. Markey, as Manager of JKM BTS CAPITAL, LLC, a Florida limited liability company, the Manager of JKM BTS R-Tjj LLC, a Florida limited liability company. He personally appeared before me 's ersonally known toe or produced as identification. Si ao _ Q Printed Name Notary Public, State of fl, My Commission Expires: b 1 20.2 Notary Seal: ENotary Public State of Florida ff LJohnson Commission H 261757 . 6/12/2026 Page 793 of 971 2023. IN WITNESS WHEREOF, I have hereunto set my hand and seal this 12 day of January, JKM DEVELOPERS, LLC, a Florida limited liability company J � Mar ey, Manager STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me by means of NO physical presence or ❑ online notarization this 1'. day of January, 2023, by John K. Markey, as Manager of JKM DEVELOPERS, LLC, a Florida limited liability company. He personally appeared before me, is sonally known to mei, or produced as identification. N ARY: Sl t 1 Printed Name Notary Public, State of f'L My Commission Expires: 611211,02Z Notary Seal: Notary Public State of Florida Jeff L Johnson IIII M HH 261757ion Exp. 6/12/2026 Page 794 of 971 IN WITNESS WHEREOF, I have hereunto set my hand and seal this 62 day of January, 2023. JKM BTS CAPITAL, LLC, a Florida limited liability company By: J STATE OF FLORIDA COUNTY OF PALM BEACH key, Manager The foregoing instrument was acknowledged before me by means of ® physical presence or ❑ online notarization this 9 Z day of January, 2023, by John K. Markey, as Manager of JKM BTS CAPITAL, LLC, a Florida limited liability company. He personally appeared before me, is e sr anally kno tones m�, or produced as identification. QUINVY Si atkk V f L.130�yi5oyl Printed Name Notary Public, State of .. My Commission Expires:g 2126 Notary Seal: Notary Public State of Florida Jeff L Johnson My Commission IIII HH 261757 Exp. 6/12/2026 Page 795 of 971 Wi� Unfinished Business 2/21/2023 Requested Action by Commission: Proposed Resolution No. R23-019- Approve and authorize the Mayor to sign a First Amendment to Comprehensive Agreement for Ground Lease and Training Facility with Primetime Sports Group, LLC to amend the original Agreement to increase the allowable size of the Facility, update the Conceptual Site Plan, and increase the amount of time for substantial/final completion. Explanation of Request: On September 17, 2021, Primetime Sports Group, LLC. submitted an unsolicited proposal to the City for a public private partnership agreement ("P3") to develop a training facility on a portion of Little League Park. As required by Florida Statutes and Resolution No. R15-020, prior to executing an agreement, the City subsequently placed advertisements in The Palm Beach Post and Florida Administrative Register on December 5, 2021 and December 12, 2021, notifying the public of the opportunity to submit proposals for the same project. The City did not receive any other proposals for the development of a training facility, and has determined that Primetime Sports Group, LLC. is a responsible private entity and that the unsolicited proposal from Primetime Sports Group, LLC. for the development, operation, and maintenance of a training facility is in the public's best interest, and that ownership will be conveyed to the City upon expiration of this Agreement. After discussions and negotiations, the City and Primetime Sports Group, LLC. agreed, in principle, to move forward with the project for the development of a training facility at Little League Park. Primetime Sports Group, LLC. has proposed to lease a designated area of land at Little League Park, that is owned and operated by the City of Boynton Beach, to design, construct, operate, maintain and fund at no cost to the City an up to twenty eight thousand square feet (28,000 sq. ft.) training facility. Primetime Sports Group, LLC. is also proposing to complete ancillary improvement projects simultaneously with construction of the Indoor Training Facility at Little Park as part of this agreement. The projects include the following: • Construction of parking lot to accommodate the facility needs. • Construction of an additional artificial turf field with dugouts and perimeter fencing. • New Little League Park Signage. • Scoreboards for all fields. During the November 1, 2022, City Commission Meeting a Ground Lease Agreement was approved and signed by Mayor Penserga. At the request of the City Commission during the November 1, 2022, City Commission Meeting, a Site Plan was requested for review and approval by City Commission before issuing a Notice to Proceed. How will this affect city programs or services? Primetime Sports Group, LLC. proposed Little League Park improvements included with the development of Page 796 of 971 an Indoor Training Facility will improve the City of Boynton Beach operations of Little League Park by adding an artificial turf field which will enhance facility usage for the program participants and City residents. The Lease agreement includes hours of operations restrictions that will not impact Boynton Beach Little League Park Sports Provider East Boynton Beach Little League. Fiscal Impact: This agreement will result in revenue generation for the City from ground lease/monthly permit fees. Additionally the City will realize reduced maintenance cost as part of converting fields from grass to turf. Alternatives: To not sign the addendum to Comprehensive Agreement for Ground Lease and Training Facility for Primetime Sports Group, LLC. or request revisions to the Agreement. Strategic Plan: High Performing Organization Strategic Plan Application: The projects included in the Lease Agreement with Primetime Sports Group, LLC. will improve Boynton Beach Little League Park, which will lead to increased park usage by Boynton Beach residents and visitors to participate in recreation programs and special events. Climate Action Application: No climate action application. Is this a grant? Grant Amount: Attachments: Type D I E)S()lLAti0111 D A rTIE)i:drTIENI':t D 1:::::.xhilbit DgirEs'E)rTIE)111 l Description I E)SCfllUltioin alplpiroviirg If:::liir'stAirTIEsir:diryiEsirit taxa Ca�aryil ir'Es'hh s'll'I >liv s gir'E)E)rT1Es1r:t for (::4'OLAind Il.....Esa SE) a nd Tiraliir:liir g Il:::::acilllity 1:::::liir'st rT1E)i:drT1Es1r:t to Ca�aryilpir'Es'hh sIii'i >livcs gir'EsEsrT1Es1r1l for (34'CRAndIl.....Esa SE: , air:d Tiraliir:liirg Il:::::acilllity 1: xhibR A2 & IB COIIICE)lP .aiall w: RE) Rain Ca�aryil ir'Es'hh s'll'I >liv s gir'E)E)rT1Es1r:t for (::4'OLAind Il.....Esa SE) a nd Tiraliir:liir g Il:::::acilllity Page 797 of 971 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 RESOLUTION R23-019 A RESOLUTION OF THE CITY OF BOYNTON BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR TO SIGN A FIRST AMENDMENT TO COMPREHENSIVE AGREEMENT FOR GROUND LEASE AND TRAINING FACILITY WITH PRIMETIME SPORTS GROUP, LLC TO AMEND THE ORIGINAL AGREEMENT TO INCREASE THE ALLOWABLE SIZE OF THE FACILITY AND UPDATE THE CONCEPTUAL SITE PLAN AND INCREASE THE AMOUNT OF TIME FOR SUBSTANTIAL/FINAL COMPLETION; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the On September 17, 2021, Primetime Sports Group, LLC. submitted an unsolicited proposal to the City for a public private partnership agreement ("P3") to develop a training facility on a portion of Little League Park; and WHEREAS, as required by Florida Statutes and Resolution No. R15-020, prior to executing an agreement, the City subsequently placed advertisements in The Palm Beach Post and Florida Administrative Register on December 5, 2021 and December 12, 2021, notifying the public of the opportunity to submit proposals for the same Project; and WHEREAS, after discussions and negotiations, the City and Primetime Sports Group, LLC. agreed, in principle, to move forward with the project for the development of a training facility at Little League Park; and WHEREAS, Primetime Sports Group, LLC. has proposed to lease a designated area of land at Little League Park, that is owned and operated by the City of Boynton Beach, to design, construct, operate, maintain and fund at no cost to the City an up to twenty eight thousand square feet (28,000 sq. ft.) training facility; and WHEREAS, the City Commission has determined that it is in the best interests of the residents of the City to approve and authorize the Mayor to Sign a First Amendment to Comprehensive Agreement for Ground Lease and Training Facility with Primetime Sports Group, LLC to amend the original Agreement to increase the allowable size of the Facility and update the Conceptual Site Plan and increase the amount of time for substantial/final completion. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF S:ACA\RESO\Agreements\First Amendment To Agreement With Primetime - Reso.Docx Page 798 of 971 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 BOYNTON BEACH, FLORIDA, THAT: Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as being true and correct and are hereby made a specific part of this Resolution upon adoption hereof. Section 2. The City Commission hereby approves and authorizes the Mayor to Sign a First Amendment to Comprehensive Agreement for Ground Lease and Training Facility with Primetime Sports Group, LLC to amend the original Agreement to increase the allowable size of the Facility and update the Conceptual Site Plan and increase the amount of time for substantial/final completion. A copy of the First Amendment is attached hereto and incorporated herein by reference as Exhibit "A". Section 3. This Resolution shall become effective immediately upon passage. PASSED AND ADOPTED this 21 st day of February, 2023. CITY OF BOYNTON BEACH, FLORIDA ATTEST: Maylee De Jesus, MPA, MMC City Clerk (Corporate Seal) Mayor — Ty Penserga YES NO Vice Mayor —Angela Cruz Commissioner — Woodrow L. Hay Commissioner — Thomas Turkin Commissioner —Aimee Kelley VOTE Ty Penserga Mayor APPROVED AS TO FORM: Michael D. Cirullo, Jr. City Attorney S:ACA\RESO\Agreements\First Amendment To Agreement With Primetime - Reso.Docx Page 799 of 971 FIRST AMENDMENT TO COMPREHENSIVE AGREEMENT FOR GROUND LEASE AND TRAINING FACILITY WHEREAS, the City of Boynton Beach, a Florida municipal corporation (the "City") and Primetime Sports Group, LLC (the "Developer") entered into that certain Comprehensive Agreement for Ground Lease and Training Facility dated November 1, 2022 (the "Original Agreement"), and WHEREAS, the parties wish to amend the Original Agreement to increase the square footage of the Training Facility, amend the Monthly Permit Fee, and increase the amount of time for the Developer to substantially and fully complete the Facility and Ancillary Projects; and NOW THEREFORE, Developer and City agree as follows: 1. The Whereas clauses are hereby ratified and confirmed. 2. Section 1.12 of the Original Agreement is hereby amended as follows: FACILITY or TRAINING FACILITY: An up to approximately twenty-eight thousand square feet (28, 000 sq. ft.) training facility to be constructed at the East Boynton Little League complex. 3. Section 5.1 of the Original Agreement is hereby amended as follows: Developer hereby agrees to engage the Consultants and the Contractor necessary for the design and construction of an up to twenty-eight thousand square feet (28, 000 sq. ft) Training Facility on City -owned land located at 300 W Woolbright Rd., Boynton Beach, Florida, inclusive of furnishing land surveying, labor, materials, equipment, and other services necessary to perform all of the work to develop and operate the Facility including completion of the Ancillary Projects. The Facility shall be located in the general area identified on the Proposed Site Plan that is attached hereto and incorporated herein as Exhibit 'B'; including any additional drawings and addenda thereto, to be constructed in accordance with the requirements and provisions of the Contract Documents. 4. Section 6.2 of the Original Agreement is hereby amended as follows: The Facility and the Ancillary Projects shall be substantially constructed no later than three hundred thirty (330) calendar days after the Construction Commencement Date, and final completion shall be no later than three hundred sixty (360) calendar days after the Construction Commencement Date, subject to approved extensions and Force Majeure. Upon failure of Developer to substantially complete the Facility and the Ancillary Projects within the specified period of time (plus approved extensions and Force Majeure, if any), Developer shall reimburse the City for any monetary losses, including fines, that the City experiences for each calendar day (plus any approved extensions) after the time specified for substantial completion. 100553463.1 306-99056311 Page 800 of 971 5. Article 46 of the Original Agreement is hereby amended as follows: Developer shall pay a Monthly Permit Fee that shall cover such things as common - area maintenance costs and other costs associated with the maintenance and upkeep of the East Boynton Little League Complex. The Monthly Permit Fee payments shall be based on the following graduated scale: Years I and 2: $400.00 per month Year 3: $800.00 per month Year 4: $1,200.00 per month Year S through Expiration: $2, 000.00 per month plus a bi-annual (every other year) increase based on the most recent 12 -month change in the following U.S. Government Index from the Bureau ofLabor Statistics: Consumer Price Index, All Goods and Services, All Items, Miami -Ft. Lauderdale Area. All payments are due payable by the 10th day of the month that the payment becomes due. 6. Exhibits A2 and B of the Original Agreement are hereby amended as shown in Exhibit A2 and B to this First Amendment. 7. All other terms and provisions of the Original Agreement not otherwise modified by this First Amendment are hereby ratified and confirmed and shall remain in full force and effect. 8. All capitalized terms used but not defined herein shall have the meaning assigned in the Original Agreement. DEVELOPER: Primetime Sports Group, LLC, a Florida limited liability company By: Phil Terrano, Manager 100553463.1 306-99056311 2 CITY: CITY OF BOYNTON BEACH, a Florida municipal corporation By: Ty Penserga, Mayor Page 801 of 971 EXHIBIT A2 & B CONCEPTUAL SITE PLAN 100553463.1 306-99056311 Page 802 of 971 SITE DATA 'IT " E"NTN EEA" uN EIINTIN EEAll IIIE 11 IIIINANIE AILIWAI. TEE IENIIN. INITI ... El" AllE IEETAlANLTALE 11 ,ENTAL (AME lEE) 11" 1 TIE "' LEIIT 1111 I N... AT INETIN NET .. TI'D I TIA, NIN. IE.lIIEl I IIIIIIAl I IN WINITI IIIIT IT RD I� ElI.IN. ALLOWED PIOINDED EETEACKE .IN ENLDIN. EETEACKE ALLOWED PIOIND D �T 111T PAIDIN. CALCITIATIONE P,OlIDED COMPREHENSIVE AGREEMENT FOR GROUND LEASE AND TRAINING FACILITY Si THIS AGREEMENT is made and entered into this day of�,�( ""��" , 2022 (the "effective date") by and between the City of Boynton Beach, a Florida municipal corporation (hereinafter referred to as the "City"), and Primetime Sports Group, LLC (hereinafter referred to as "Developer"). WHEREAS, on September 17, 2021, Developer submitted an unsolicited proposal to the City for a public private partnership agreement ("P3") to develop a training facility on a portion of East Boynton Little League complex, as more fully depicted attached hereto and incorporated herein as Exhibit "A1" (the "Property"); and WHEREAS, after discussions and negotiations, the City and Developer agreed, in principle, to move forward with the Project for the development of a Training Facility at the Property; and WHEREAS, as required by Florida Statutes, prior to executing an agreement, the City subsequently placed advertisements in The Palm Beach Post and Florida Administrative Register on December 5, 2021 and December 12, 2021, notifying the public of the opportunity to submit proposals for the same Project; and WHEREAS, the City did not receive any other proposals for the development of a Training Facility, and has determined that Developer is a responsible private entity and that the unsolicited proposal from Developer for the development, operation, and maintenance of a Training Facility is in the public's best interest, and that ownership will be conveyed to the City upon expiration of this Agreement; and WHEREAS, to facilitate the development, operation, and maintenance of the Training Facility, the City agrees to lease a portion of, and grant certain easements, rights, and privileges with respect to, the Property ("Facility Property") as more fully depicted attached hereto and incorporated herein as Exhibit "A2" to Developer upon and subject to the conditions and limitations hereinafter expressed (such lease being referred to herein as the "Ground Lease"). NOW, THEREFORE, in consideration of the mutual covenants and promises hereafter set forth, the City and Developer agree as follows: ARTICLE 1. DEFINITIONS. For the purposes of this Agreement and the various covenants, conditions, terms, and provisions that follow, the Definitions set forth below are assumed to be true and correct and are agreed upon by the parties: {00519664.4306-9905631 } Page 1 of 54 Page 804 of 971 1.1 ANCILLARY PROJECTS: The additional projects required to be developed and installed by the Developer simultaneously with the Facility in accordance with Article 6 as follows: construction of a parking area nearest to the Facility with the exact location to be determined in writing by the City's Designated Representative; the addition and construction of one small artificial turf field with 2 dugouts, and perimeter fencing, which shall be in compliance with tee ball and miracle league dimensions; purchase and installation of new scoreboards for all four fields at the Property; installation and construction of a digital marquee and park sign to be visible from Woolbright Road; and relocation of the monument behind field 2 to a location to be determined by the City's Designated Representative. 1.2 CHANGE ORDER: A written document ordering a change in the contract price or time or a material change in the work issued subsequent to this Agreement, as determined by the Project Manager. 1.3 CITY: The City of Boynton Beach, a Florida municipal corporation. 1.4 CITY'S DESIGNATED REPRESENTATIVE: Director of Recreation and Parks Department. 1.5 CONSULTANT: A registered architect, professional engineer, professional land surveyor, civil engineer, and/or registered landscape architect who has contracted with or who is employed by the City or Developer to provide professional services for the design or construction of the Project and who is licensed by the State of Florida to provide said services. 1.6 CONTRACT: This Agreement between the City and Developer for this Project, all as defined herein. As used herein, the term Contract shall mean the same as Agreement. 1.7 CONTRACTOR: A general contractor hired by Developer for the construction of the Project and who is licensed by the State of Florida to provide said services. 1.8 CONTRACT DOCUMENTS: Developer' unsolicited proposal, including plans, specifications, drawings, and/or other written or graphic materials that are to be developed by the Consultant as part of the record of this Agreement; this Agreement, the performance and payment bond, the design documents, the construction documents, the Purchase Order, and any additional documents relevant to the Project and are required by this Agreement. 1.9 COMMISSION: The City Commission, which is the governing body of the City of Boynton Beach, Florida. {00519664.4 306-99056311 Page 2 of 54 Page 805 of 971 1.10 DEVELOPER: Primetime Sports Group, LLC 1.11 DEVELOPER'S DESIGNATED REPRESENTATIVE: Phil Terrano. 1.12 FACILITY or TRAINING FACILITY: An approximately seven thousand five hundred square feet (7,500 sq. ft.) training facility to be constructed at the East Boynton Little League complex. 1.13 FIELD ORDER: A written order issued by the Project Manager that orders minor changes in the Project but that does not involve a change in the total cost or time for performance. 1.14 FINAL COMPLETION: The date certified by the City that all construction work on the Facility and Ancillary Projects is fully and finally complete under this Agreement. 1.15 FORCE MAJEURE: Acts of God; hurricane; war; acts of terrorism; civil commotion; fire or other casualty; labor difficulties; shortages of labor, materials or equipment; government regulations; or other causes beyond such party's reasonable control. 1.16 INSPECTOR: An authorized representative of the City assigned to make necessary inspections of materials furnished by Developer and of the work performed by Developer. 1.17 MATERIAL: Materials incorporated in this Project that are used or consumed in the performance ofthe work. 1.18 NOTICE OF COMPLETION: The date certified by the Consultant that all conditions of the permits and regulatory agencies have been met, all construction, reconstruction, or rehabilitation, including corrective work, has been performed, and all administrative requirements of the Contract Documents have been completed, and the City has received from Developer a release of all liens, release of surety, certificate of indemnification by Developer, release of claims by Developer, and corrected as- built drawings. 1.19 NOTICE TO PROCEED: A written Notice to Proceed (or a Purchase Order) issued by the Project Manager. 1.20 PLANS AND/OR DRAWINGS: The official graphic representations of this Project that, upon written approval of the Project Manager, shall become a part of the Contract Documents, as well as the preliminary plans and drawings and renderings of the Project and the preliminary outline specifications and plans for the design -build services for the Project that shall be prepared by Developer, and shall be made a part of the Contract Documents upon approval by the Project {00519664.4 306-9905631 } Page 3 of 54 Page 806 of 971 Manager. The plans and specifications shall include the design development documents and construction documents to be approved by the Project Manager as provided in this Agreement. 1.21 PROJECT: The Project is the design, construction, operation, and maintenance of the Facility and the Ancillary Projects, as described herein and in accordance with the Contract Documents, complete with all appurtenances required to perform the work, including without limitation, construction services and labor, materials, and equipment necessary or used or incorporated in the construction, in accordance with the Contract Documents and as is required or reasonably inferred from them. The Project includes the work, services, and labor, and the goods, materials, tools, supervision, and equipment to be provided, and the cleanup, removal, and disposal of all debris, trash, and other material so as to leave the facilities in a clean and ready -to -use condition; and the operation and maintenance thereof by Developer. The definition of the Project shall also include the Ancillary Projects. 1.22 PROJECT INFRASTRUCTURE: The electrical utility, water, and sewer lines running to within six (6) feet of the Facility's slab that are to be constructed by Developer. 1.23 PROJECT MANAGER: Unless otherwise explicitly stated, all contract duties, contract responsibilities, and contract communications of the City shall be made through the City's Engineer as Project Manager. The foregoing sentence shall not apply to the City construction inspections made to assure compliance with applicable regulatory law and which the City conducts in a governmental regulatory capacity. 1.24 SUBCONTRACTOR: The person or corporation having a direct contract with the Contractor, including one who furnishes material worked to a special design according to the Contract Documents for this Project, but does not include one who merely furnishes material not so worked. 1.25 SUBSTANTIAL COMPLETION: The date certified by the City that all conditions of the permits and regulatory agencies have been met, and all construction, reconstruction, or rehabilitation (except minor corrective work) has been performed in accordance with the Contract Documents, and the Facility and Ancillary Projects are able to be used for their intended use. 1.26 SURETY: The surety company or individual that is bound by a contract bond with and for the Contractor who is primarily liable, and which surety company or individual is responsible for the Contractor's acceptable performance of the work under the contract and for the payment of all debts pertaining thereto per Chapter 255.05, Florida Statutes. ARTICLE 2. GENERAL INTENTION AND UNDERSTANDING. {00519664.4306-9905631 1 Page 4 of 54 Page 807 of 971 2.1 It is the intent ofthe Contract Documents to describe a functionally complete Project to be designed, constructed, operated, and maintained by Developer in accordance with the Contract Documents. Any work, materials, or equipment that may reasonably be inferred from the Contract Documents, as being required to produce the intended result, shall be supplied whether or not specifically called for. When words that have a well- known technical or trade meaning are used to describe work, materials, or equipment, such words shall be interpreted in accordance with that meaning. Reference to standard specifications, manuals, or codes of any technical society, organization, or association, or to laws or regulations of any governmental authority, whether such reference is specific or by implication, shall mean the standard specification, manual, code, laws, or regulations in effect at the time of the date of the execution of this Agreement. 2.2 This is a public-private partnership project. As such, the parties agree and understand that after the expiration of the Term of the Ground Lease, except as otherwise provided herein, the Facility and Ancillary Projects that will be constructed will revert in ownership to the City, free and clear of all claims by Developer or any other entity. 2.3 The City shall not provide any financial assistance or monetary support for the development of this Project. The City shall not be liable for any financial costs related to the design, construction, operation, or maintenance of the Facility or the Ancillary Projects during the term of this Agreement, except as specifically set out herein. 2.4 Developer shall design, construct, operate, and maintain the Facility and Ancillary Projects to the satisfaction and standards of the City. 2.5 The public shall have access and use of the Facility as set forth herein. Developer shall develop a non-discrimination policy and applicable processes and procedures to allow the public to access and use the Facility. The policy and procedures require the review and approval of the City, and such approval will not be unreasonably withheld. 2.6 The individual and group programming that is offered by Developer shall be available and open to the public. The training for adults and youth shall be conducted according to policies, procedures, and costs developed by Developer; provided such policies and procedures are not in conflict with the City's policies and procedures. The City shall not be responsible for providing staff, additional facilities (outside ofthis Agreement), additional permitting, or the collection of fees for Developer. 2.7 The Facility shall be used for athletic programs in the areas of semi -private group training, strength camps, personal training, performance consulting, manual and {00519664.4306-9905631 } Page 5 of 54 Page 808 of 971 physical therapy, nutrition consulting, elite sport training, apparel sales, and symposiums related to the uses referenced is this section (the "Intended Use"). The City shall have no right to modify or change the Intended Use, except as provided by law or ordinance. The fees associated with this Agreement are specifically related to the Intended Use. Developer shall retain all revenues collected as part of its business operations. 2.8 After the construction phase of the Project is completed and Developer has begun operating in full within the Facility, the City's Recreation and Parks Director or designee shall perform the functions of Contract/Project Manager during the remaining term of the Agreement. All issues related to the operation and maintenance of the Facility shall be handled through the Recreation and Parks Department. ARTICLE 3. CONTRACT DOCUMENTS. 3.1 The Contract Documents shall be followed in strict accordance as to work, material, and dimensions, except when the Project Manager may authorize an exception in writing. 3.2 Dimensions given in figures are to hold preference over scaled measurements from the drawings; however, all discrepancies shall be decided upon by the Project Manager. The Contractor shall not proceed when in doubt as to any dimension or measurement but shall seek clarification from the Project Manager. 3.3 Developer shall maintain four (4) copies of the Contract Documents, two (2) of which shall be preserved and always kept accessible to the Project Manager or his/her authorized representative. 3.4 This Contract incorporates by reference Developer's unsolicited proposal, including any addenda or revisions. In the event of any conflict between such proposal and this Contract, this Contract shall prevail. ARTICLE 4. OWNERSHIP OF DESIGN MATERIALS AND DOCUMENTS. All design materials and documents shall remain the property of Developer. However, Developer shall provide to the City copies of all such design materials and documents, including any updates or changes during the term of this Agreement. ARTICLE 5. PROJECT DEVELOPMENT SCOPE. 5.1 Developer hereby agrees to engage the Consultants and the Contractor necessary for the design and construction of a seven thousand five hundred {00519664.4306-9905631 1 Page 6 of 54 Page 809 of 971 square feet (7,500 sq. ft.) Training Facility on City -owned land located at 300 W Woolbright Rd., Boynton Beach, Florida, inclusive of furnishing land surveying, labor, materials, equipment, and other services necessary to perform all of the work to develop and operate the Facility including completion of the Ancillary Projects. The Facility shall be located in the general area identified on the Proposed Site Plan that is attached hereto and incorporated herein as Exhibit "B", including any additional drawings and addenda thereto, to be constructed in accordance with the requirements and provisions of the Contract Documents. 5.2 The Facility shall be designed to reflect or complement the general architectural language of the surrounding buildings at the Property, and shall conform to all applicable building codes and construction requirements for public buildings in the State of Florida. 5.3 Developer agrees to meet with the City at reasonable times and with reasonable notice during the term of this Agreement, and specifically during the design and construction phase of the Facility. 5.4 Prior to the Final Completion of construction services under this Agreement, there shall be established a record set of plans and specifications, that shall bear the approval of Developer and the Project Manager. In addition, prior to the commencement of construction services under this Agreement, Developer shall submit to the Project Manager a Construction Schedule for the planning and execution of the Construction Phase of the Project. The Construction Schedule shall be updated regularly and submitted to the Project Manager. ARTICLE 6. COMPLETION DATE - CONSTRUCTION PHASE. 6.1 Upon execution of this Agreement by both parties, the Developer shall have one hundred eighty (180) calendar days to submit all required documents and receive any and all permits for the Project. Prior to receipt of any permits for the Project from the City, the Developer shall be required to receive final site plan approval from the City Commission of the City of Boynton Beach. Upon approval of the final site plan by the City Commission and once the permits are received by the Developer, the Project Manager shall instruct Developer to commence the Construction Phase of the Project by written instructions in the form of a Notice to Proceed issued by the City. Construction of the Project shall commence within seven (7) calendar days of the Project initiation date specified in the Notice to Proceed (the "Construction Commencement Date"). The Notice to Proceed will not be issued until after execution of this Agreement by both parties and receipt and approval by the City of all required documents, including a task and delivery - oriented project timeline. {00519664.4306-9905631 1 Page 7 of 54 Page 810 of 971 6.2 The Facility and the Ancillary Projects shall be substantially constructed no later than one hundred eighty (180) calendar days after the Construction Commencement Date, and final completion shall be no later than two hundred ten (210) calendar days after the Construction Commencement Date, subject to approved extensions and Force Maj eure. Upon failure of Developer to substantially complete the Facility and the Ancillary Projects within the specified period of time (plus approved extensions and Force Majeure, if any), Developer shall reimburse the City for any monetary losses, including fines, that the City experiences for each calendar day (plus any approved extensions) after the time specified for substantial completion. 6.3 No extension of time shall be granted for delays resulting from normal weather conditions prevailing in the area as defined by the average of the last five (5) years of weather recorded for the City of Boynton Beach. ARTICLE 7. DEVELOPER'S RESPONSIBILITIES. 7.1 The parties acknowledge and agree that the City is entering into a public private partnership with Developer, and that Developer is bound to coordinate and administer the design and construction of the Facility and the Ancillary Projects, including, without limitation, the obligations to coordinate, administer, and assume certain rights and obligations with respect to: (a) the Consultants under Consultant contracts, and (b) the Contractor under the construction contract for the Facility and the Ancillary Projects that shall be constructed in accordance with the Contract Documents and comply with all applicable laws and technical codes. 7.2 The City acknowledges that Developer is providing the services described herein as a development consultant and not as a licensed general contractor, architect, or other licensed professional. However, Developer will engage and contractually require licensed professionals to complete the construction work in accordance with the requirements of this Agreement, and will enforce such contracts and administer any claims process associated with such contracts as set forth herein. Developer shall require each Contractor and each design Consultant to provide customary warranties, enforce said warranties, and name the City as a third -party beneficiary of all such warranties. The foregoing notwithstanding, Developer shall be obligated to enforce the provisions of each Consultant Contract and each Construction Contract as set forth herein. 7.3 All fees payable to the City pursuant to the operation of the Facility shall be paid by Developer. Local Business Tax Receipts (formerly Occupational Licenses) are required pursuant to Chapter 205, Florida Statutes. 7.4 Nothing in this Agreement shall create any contractual relationship between any consultant or subcontractor and the City or any obligation on the part of the City to {00519664.4306-9905631} Page 8 of 54 Page 811 of 971 pay or to see to the payment of any monies due to any consultant or subcontractor of Developer. 7.5 Developer agrees to bind specifically the Contractor and Consultants to the applicable terms and conditions of this Agreement for the benefit of the City and shall ensure the Contractor or Consultants prohibit any liens on the City's Property. 7.6 Unless otherwise provided herein, Developer shall provide and pay for all land surveying services, materials, labor, water, tools, equipment, light, power, transportation, and other facilities and services necessary for the proper execution and completion of the Project, whether temporary or permanent, and whether or not incorporated or to be incorporated in the Project. 7.7 Developer shall cause all its agents, employees, Contractor, subcontractors, and Consultants to observe and comply with all such existing and future laws, ordinances, regulations, orders, and decrees, at no additional cost to the City. 7.8 Developer shall pay all applicable sales, consumer, use, and other taxes required by law. Developer is responsible for reviewing the pertinent state, federal, and local statutes, laws, rules, regulations, guidelines, and directions involving such taxes and complying with all requirements. ARTICLE 8. FINANCIAL SUPPORT. 8.1 The City shall have no obligation whatsoever to provide any type of monetary or financial support for the design, construction, operation, and maintenance of the Facility or the Ancillary Projects. The City shall not be obligated to provide any kind of bonding support, credit guarantees, or any type of financial commitments for the development of this Project. 8.2 Prior to the execution of this Agreement, Developer shall provide acceptable written evidence to the City that it has the necessary financial means to design, construct, operate, and maintain the Facility and the Ancillary Projects. Such evidence shall meet the City's standard of financial adequacy, and the City shall conduct due diligence to verify the nature and source of such funding. The City shall have the right to reject such evidence as inadequate or unacceptable as the City deems in its best interest. During the term of this Agreement, the City shall have the right to demand and receive information from Developer on any additional form of financial support or commitments and the sources of such support/commitments. ARTICLE 9. USE OF FACILITY. 9.1 The intent of the parties to this Agreement is that the Facility will be used for the Intended Use, and primarily to provide high-performance training to elite professional and amateur athletes. The parties envision a public private partnership {00519664.4306-9905631} Page 9 of 54 Page 812 of 971 that helps to position the City as a premier sports destination, while providing tangible economic and community benefits. The Facility shall be operated subject to the City's applicable codes and its rules regarding recreation and park activities. 9.2 The programmatic operation of the Facility shall be governed by programs and schedules outlined in the Programming Schedule, attached hereto and incorporated herein as Exhibit "C". The City and Developer may mutually make changes to the Programming Schedule during the term of this Agreement, without invalidating the Agreement and without the need for a formal amendment. Except as provided on the Programming Schedule, Developer shall have full discretion as to the hours of operation and programs offered at the Facility. 9.3 The parties agree that the intent is for the public to have access to the services offered at the Facility, subject to the Programming Schedule. Developer shall have the right to establish fees reasonably within industry norms for services and programs provided to the public. ARTICLE 10. THE CITY'S RESPONSIBILITIES. 10.1 The City shall assist Developer by placing at its disposal any available information pertinent to the Project, including previous reports, laboratory tests, and inspections of samples, materials, and equipment; property, boundary, easement, rights-of- way, topographic and utility surveys; property descriptions; and known zoning, deed, and other land -use restrictions. 10.2 The City shall arrange for access to and make all provisions for Developer to enter upon the public property as required for Developer to perform its services. 10.3 Without invalidating this Agreement and without notice to any surety, the City reserves and shall have the right to make such changes from time to time as may be reasonably considered necessary to complete fully and acceptably the proposed construction in accordance with applicable law. Any other changes (that are not required for compliance with applicable law) proposed by the City shall be paid for by the City at its sole cost and expense. Any extra or additional work during the construction of the Facility or Ancillary Projects may be accomplished by means of appropriate field orders and supplemental instructions or change orders subject to the provisions herein. ARTICLE 11. RESOLUTION OF DISPUTES. In order to prevent all disputes and litigation, it is agreed by the parties hereto that during the construction phase of the Project, the City Engineer shall decide all questions, difficulties, and disputes of whatever nature that may arise relative to the technical interpretation of the Contract Documents and fulfillment of this Agreement as to the character, quality, {00519664.4 306-9905631} Page 10 of 54 Page 813 of 971 amount, and value of any work done and materials furnished under or by reason of this Agreement, and the City Engineer's estimates and decisions upon all claims, questions, and disputes shall be final and conclusive upon the parties hereto. This Article does not preclude either or both parties from seeking any and all remedies available at law or in equity. The parties hereto may also, if mutually agreed, seek mediation to resolve any dispute related to this Contract. ARTICLE 12. ASSIGNMENT. Except as provided herein with respect to subleasing, neither party to this Agreement shall assign this Agreement without the prior written consent of the other party, nor shall Developer assign any monies due or to become due to the City hereunder without the prior written consent of the City. ARTICLE 13. CONSTRUCTION PROGRESS PROJECT MEETINGS. Developer shall schedule periodic work progress meetings and specially called meetings as needed with the City's Designated Representative relating to the construction services under this Agreement. Developer shall record the minutes of such meetings, include significant proceedings and decision(s) within the minutes, and reproduce and distribute copies of minutes within five (5) business days after each meeting, plus incorporate comments received or exceptions taken by those present who have reviewed and commented on the minutes. ARTICLE 14. SECURITY. Developer or its Contractor shall provide a project security program to protect work, stored products, and construction equipment from theft and vandalism, and to protect premises from entry by unauthorized persons. In the event any such materials, equipment, and supplies are lost, stolen, damaged, or destroyed prior to final completion, Developer shall replace same without cost to the City. ARTICLE 15. INSPECTION OF CONSTRUCTION. 15.1 During the construction phase, the City Engineer or designee shall, at all times, have access to the Facility and any Ancillary Projects, and Developer shall provide proper facilities for such access. 15.1.1 Should the Contract Documents, instructions, any laws, ordinances, or any public authority require any work for the Facility or the Ancillary Projects to be specially tested or approved, Developer shall give to the City timely notice of readiness of the work for inspection. If the testing or approval is to be made by an authority other than the City, timely notice shall be given of the date fixed for such testing. Inspections shall be made promptly, and where practicable, at the source of supply. If any work on the Facility or the Ancillary Projects are {00519664.4 306-9905631 } Page 11 of 54 Page 814 of 971 covered up without approval or consent of the Project Manager, it shall, if required by the City, be uncovered for examination and properly restored at Developer's expense. 15.1.2 Re-examination and re -testing of any work on the construction of the Facility or the Ancillary Projects may be ordered by the Project Manager, and if so ordered, such work shall be uncovered by Developer. If work is found defective, Developer shall bear all direct, indirect, and consequential expenses of such removal or correction. If such work is found to be in accordance with the Contract Documents, the City shall pay the cost of re-examination, re -testing, and replacement. 15.2 The payment of any compensation, regardless of its character or form, or the giving of any gratuity or the granting of any valuable favor by Developer to any inspector other than its consultant, is forbidden, and any such act on the part of Developer shall constitute a breach of this Agreement. ARTICLE 16. SUPERINTENDENCE AND SUPERVISION. 16.1 The orders of the City shall be given through the Project Manager, whose instructions are to be strictly and promptly followed in every case. Developer shall maintain a competent resident supervisor, who shall serve as the Designated Representative, and any necessary assistants on the construction site throughout the duration of the construction phase of the Project. The Designated Representative shall serve as the Superintendent on site and shall be responsible for continuous field supervision, coordination, and completion of the work. The Designated Representative shall not be changed except with the consent ofthe Project Manager, unless the Designated Representative proves to be unsatisfactory to Developer and ceases to be in its employ. The Project Representative shall represent Developer, and all direction given to the Designated Representative shall be as binding as if given to Developer. Directions shall be confirmed in writing to Developer. Other directions will be so confirmed on written request in each case. 16.2 Developer's Designated Representative shall prepare, on a daily basis and keep on the construction site, a bound log setting forth, at a minimum for each day: the weather conditions and how any weather conditions affected progress of the work; work performed; equipment utilized for the work; any idle equipment and reasons for idleness; visitors to the site; labor utilized for the work; and any materials delivered to the construction site. The daily log shall be available for inspection by the Project Manager at all times during the construction phase of the Project. 16.3 If Developer, in the course of constructing the Facility or the Ancillary Projects, finds any discrepancy between the Contract Documents and the physical conditions of the locality, or any errors or omissions in the Contract Documents, including drawings (plans) and specifications, it shall be Developer's duty to immediately {00519664.4 306-99056311 Page 12 of 54 Page 815 of 971 inform the Project Manager in writing, and the Project Manager shall promptly verify the same. Any work done prior to or after such discovery shall be done at Developer's sole risk. ARTICLE 17. THE CITY'S RIGHT TO TERMINATE AGREEMENT DURING DEVELOPMENT AND CONSTRUCTION. 17.1 The following shall give the City the right to terminate this Agreement by written notice to the Developer prior to completion of construction of the Facility and the Ancillary Projects ("Notice of Termination"): 17.1.1 Construction of the Facility and the Ancillary Projects does not commence within the time specified, or is not performed to ensure the prompt completion of the Facility and the Ancillary Projects or the construction work is performed unsuitably, or the construction work is defective and/or unsuitable. 17.1.2 If Developer becomes insolvent, is declared bankrupt, commits any act of bankruptcy or insolvency, makes an assignment for the benefit of creditors, or as a result of any other cause whatsoever resulting in Developer not carrying on the construction of the Facility or the Ancillary Projects in an acceptable manner, the Project Manager may give notice in writing to Developer and its Surety of such delay, neglect, or default, specifying the same. If Developer, within a period of ten (10) calendar days after such notice, does not proceed in accordance therewith, then the City may, upon written certificate from the Project Manager of the fact of such delay, neglect or default and Developer's failure to comply with such notice, terminate the Agreement, exclude Developer from the site and take the construction of the Facility and the Ancillary Projects out of the hands of Developer, and appropriate or use any or all materials and equipment on the site as may be suitable and acceptable. 17.2 In the event of an occurrence under Section 17.1 above, the City may enter into a separate agreement for the completion of the Facility and Ancillary Projects according to the terms and provisions of the Contract Documents or use such other methods as in the City's opinion is required for the completion of the construction in an acceptable manner. 17.3 In the event of an occurrence under Section 17.1 above, all damages, costs, and charges incurred by the City shall be deducted from any monies due or that may become due to Developer. Actions may be instituted to recover on the posted bonds. In case of damages and expenses incurred by the City, Developer shall be liable and shall pay to the City the amount of such costs. 17.4 Upon receipt of the Notice of Termination pursuant to Article 17.1, Developer shall promptly discontinue all affected work, unless the Notice of Termination directs otherwise, and deliver or otherwise make available to the Project {00519664.4 306-9905631} Page 13 of 54 Page 816 of 971 Manager all data, drawings, specifications, reports, estimates, summaries, and such other information as may have been required by the Contract Documents, whether completed or in process. ARTICLE 18. DEVELOPER'S RIGHT TO STOP WORK OR TERMINATE AGREEMENT. 18.1 If the construction of the Facility or Ancillary Projects should be stopped under an order of any court or other public authority for a period of more than ninety (90) calendar days, through no act or fault of Developer or of anyone employed by Developer, then Developer may, upon seven (7) calendar days' written notice to the City and the Project Manager, stop work on the construction of the Facility or Ancillary Projects, without any penalties hereunder, until such time Developer is legally allowed to commence performance under this Agreement. 18.2 If the City fails to perform its obligations under this Agreement, Developer must provide twenty (20) calendar days' written notice of such failure, after which the City shall have thirty (30) days to cure. If the City fails to cure the subject default, Developer may terminate the Agreement. 18.3 In the event the City Commission denies the final site plan for the Project in accordance with Article 6, the Developer shall have the right to immediately terminate this Agreement. ARTICLE 19. PLANS AND WORKING DRAWINGS. The City and Developer will review and revise construction plans prior to submittal for permitting. All approved plans, general and detail, are to be deemed a part of this Agreement, and the plans and specifications and Agreement are to be considered together and are intended to be mutually complementary so that any work shown on the plans, though not specified in the specifications, and any work specified in the specifications, though not shown on the plans, is to be executed by Developer as part of this Agreement. All things that in the opinion of the Project Manager may reasonably be inferred from this Agreement and plans, as developed by Developer and approved by the Project Manager, are to be executed by Developer under the terms of this Agreement; and the Project Manager shall determine whether the detail plans conform to the Contract Documents, except as may be otherwise determined by the Project Manager. All plans, specifications, and related technical documentation should be in the form of an electronic CADD drawing file and paper copy. ARTICLE 20. SUBCONTRACTS. Developer shall cause the Contractor, prior to the start of construction, to notify the Project Manager in writing of the names of the subcontractors who will be used to construct the Facility and Ancillary Projects, and identify the portion of the work that each will perform. The Contractor shall have a continuing obligation to notify the Project Manager of any change in {00519664.4 306-99056311 Page 14 of 54 Page 817 of 971 the subcontractors. ARTICLE 21. SEPARATE CONTRACTS. 21.1 The City reserves the right to let other contracts that may impact work in the general area of the construction site. Developer shall afford other contractors reasonable opportunity for the introduction and storage of their materials and the execution of their work and shall properly connect and coordinate this work with theirs. 21.2 Developer shall use commercially reasonably efforts to require the Contractor to perform the obligations described on Exhibit "D" attached hereto and incorporated herein. 21.3 To ensure the proper execution of its subsequent work, Developer shall inspect the work already in place and shall at once report to the Project Manager any discrepancy between the executed work and the requirements of the Contract Documents. 21.4 No claim for damages or any claim other than for an extension of time shall be made or asserted against the City by reason of any delays due to work of other contractors, unless such delays result in the de -mobilization of Developer's work crew and there is an attendant cost to re -mobilize. ARTICLE 22. USE OF COMPLETED PORTIONS. 22.1 The City may inform Developer if any portion of the Facility or the Ancillary Projects may be utilized by Developer prior to normal construction completion. Such possession and use shall not be deemed an acceptance of any work not completed in accordance with the Contract Documents. If such possession and use delay the construction of the Facility or the Ancillary Projects, Developer shall be liable for any costs incurred by the City. 22.2 In the event Developer takes possession of a completed portion, the following shall occur: 22.2.1 Developer shall give notice to the City at least fifteen (15) calendar days in advance of intent to occupy a designated area. 22.2.2 Developer shall bring the designated area to the point of Substantial Completion. When the City considers that the designated area of the Facility or the Ancillary Projects are substantially complete, the City shall notify Developer, in writing, and shall prepare a list of items to be completed or corrected. The failure to include any items on such list does not alter the responsibility of Developer to complete work on the designated area in accordance with the Contract Documents. The Project Manager shall conduct {00519664.4 306-99056311 Page 15 of 54 Page 818 of 971 an inspection to determine that the designated portion of the Facility or the Ancillary Projects are substantially complete. The Project Manager and Developer shall agree on the time within which Developer shall complete the items listed. 22.2.3 Upon issuance and acceptance of the Certificate of Substantial Completion, Developer shall assume full responsibility for the operation, maintenance, utilities, and all related expenses. Developer shall remain responsible for all items listed to be completed or corrected as submitted to the Project Manager as required in the substantial completion process. 22.2.4 If Developer finds it necessary to use a portion or portions of the Facility or Ancillary Projects prior to Substantial Completion thereof, such use shall not commence prior to a time mutually agreed upon by the Project Manager and Developer. Any insurance in effect shall not be canceled or lapsed on account of such partial use. ARTICLE 23. LANDS FOR WORK. The City shall provide, as indicated in the Contract Documents, the lands upon which the Facility and the Ancillary Projects are to be constructed, rights-of-way, and easements for access thereto, and such other lands as are designated for the use of Developer. No claim for damages or other claim other than for an extension of time shall be made or asserted against the City by reason of any delay arising as a result of any failure of the City to provide such lands on the date needed by Developer. ARTICLE 24. FIELD ORDERS AND SUPPLEMENTAL INSTRUCTIONS. 24.1 The Project Manager shall have the right to approve and issue field orders setting forth written interpretations of the intent of the Contract Documents and ordering minor changes in contract execution, provided the field order involves no change in the total cost of the construction of the Facility or the Ancillary Projects or the time of performance. 24.2 The Project Manager shall have the right to approve and issue supplemental instructions setting forth written orders, instructions, or interpretations concerning this Agreement or its performance, provided they make no major changes in contract execution and involve no change in the total cost of the construction of the Facility or the Ancillary Projects or the time of performance. ARTICLE 25. CHANGE ORDERS (CHANGES IN QUANTITIES OF WORK OR CONTRACT PRICE). 25.1 Changes in the quantity or character of work within the scope of the construction of the Facility or the Ancillary Projects that are not properly the {00519664.4 306-9905631 } Page 16 of 54 Page 819 of 971 subject of field orders or supplemental instructions, to include all changes resulting in changes in the total cost of the work or the time of performance, shall be authorized only by Change Orders approved and issued by the City. 25.2 Developer shall not authorize the start of work on any alteration requiring an increase in price or extension of time for completion until a Change Order setting forth the adjustments is approved by the City. 25.3 All changes to construction contracts shall be approved in advance in accordance with the value ofthe Change Order or the calculated value ofthe time extension. All contract Change Orders shall be approved by the City Engineer and shall be accomplished at no cost to the City. All Change Orders where the time for completion is extended by more than sixty (60) calendar days, in any one change or cumulatively for the same project, beyond the most recent contract completion time shall be approved by the City Manager or designee. 25.4 In the event satisfactory adjustment cannot be reached for any item requiring a Change Order, the City reserves the right, at its own option, to either terminate this Agreement as it applies to the items in question and make such arrangements as may be deemed necessary to complete the construction of the Facility or the Ancillary Projects, or submit the matter in dispute to the Project Manager as set forth herein. During the pendency of the dispute resolution, Developer shall proceed with the work set forth within the Change Order if the estimated dollar amount of the Change Order is less than Ten Thousand Dollars ($10,000.00). 25.5 On approval of any Change Order increasing the price, Developer shall ensure that the applicable Performance and Payment Bonds and Guarantees are each increased so that it reflects the total amount of the construction of the Facility or the Ancillary Projects as increased. 25.6 Change Orders may not be issued unilaterally by either party to this Agreement. ARTICLE 26. VALUE OF CHANGE ORDER WORK. 26.1 The value of any work covered by a Change Order shall be determined in one of the following ways: 26. 1.1 Where the work involved is covered by unit prices contained in the Contract Documents, by application of unit prices to the quantities of items involved, subject to the provisions herein. 26.1.2 By mutual acceptance of a lump sum that includes any subcontractor fees. {00519664.4306-9905631 } Page 17 of 54 Page 820 of 971 26.1.3 On the basis of the "cost of the work" determined as provided, plus the contractor's fee for overhead and profit that is determined as provided in the applicable provisions of this Agreement. 26.2 The term "cost ofthe work" means the sum of all costs necessarily incurred and paid by Developer in the proper construction of the Facility or the Ancillary Projects. Except as otherwise may be agreed to in writing by the City, such costs shall be in amounts no higher than those prevailing in the locality of Boynton Beach, shall include only the following items, and shall not include any other costs whatsoever: 26.2.1 Payroll costs for employees in the direct employ of the Contractor in the construction of the Facility or the Ancillary Projects under schedules of job classifications agreed upon by the City and Developer. Payroll costs for employees not employed full-time in the construction work shall be apportioned on the basis of their time spent on the job. Payroll costs shall include, but not be limited to, salaries and wages, plus the cost of fringe benefits that shall include social security contributions, unemployment, excise and payroll taxes, workers' compensation, health and retirement benefits, bonuses, sick leave, vacation and holiday pay applicable thereto. Such employees shall include superintendents and foremen at the construction site. The expenses of performing the work after regular working hours, on Sunday, or legal holidays shall be included in the above to the extent authorized by the City. Insurance and benefits shall be based on single time. 26.2.2 Cost of all materials and equipment furnished and incorporated in the construction of the Facility and the Ancillary Projects, including costs of transportation and storage thereof, and manufacturers' field services required in connection therewith. All cash discounts shall accrue to Developer. All trade discounts, rebates and refunds, and all returns from the sale of surplus materials and equipment shall accrue to Developer. 26.2.3 Payments made by Developer to subcontractors for work performed by subcontractors. The term subcontractors shall include architects and engineers employed for services specifically related to the construction of the Facility and the Ancillary Projects. If required by the Project Manager, Developer shall obtain competitive bids from subcontractors acceptable to Developer, and shall deliver such bids to the City who will then determine which bids will be accepted. If the subcontract provides that the subcontractor is to be paid on the basis of the cost of the work plus a fee, the subcontractor's cost of the work shall be determined in the same manner as the main contractor's cost of the work. Whenever a subcontractor is involved, a complete and separate breakdown shall be submitted by the subcontractor for its portion of the work. 26.2.4 Costs of special consultants, including, but not limited to, testing laboratories, surveyors, lawyers, and accountants employed for services specifically related 100519664.4 306-99056311 Page 18 of 54 Page 821 of 971 to the construction of the Facility and the Ancillary Projects. 26.2.5 Supplemental costs, including the following: 26.2.5.1 The proportion of necessary transportation, travel, and subsistence expenses of Developer's employees incurred in the discharge of duties connected with the construction of the Facility and the Ancillary Projects. 26.2.5.2 Cost, including transportation and maintenance, of all materials, supplies, equipment, machinery, appliances, office and temporary facilities at the site, and hand tools not owned by the workers that are consumed in the performance of the construction of the Facility and the Ancillary Projects, and cost, less market value, of such items used but not consumed that remain the property of Developer. 26.2.5.3 Rentals of all construction equipment and machinery and the parts thereof, and the costs of transportation, loading, unloading, installation, dismantling, and removal thereof, all in accordance with the terms of said agreements. The rental of any such equipment, machinery, or parts shall cease when the use thereof is no longer necessary for the construction of the Facility and the Ancillary Projects. Late charges, penalties, restocking charges, and similar assessments in said agreements shall not be recognized by the City as a supplemental cost. 26.2.5.4 Sales, use, or similar taxes related to the construction of the Facility and the Ancillary Projects, and for which Developer is liable, imposed by any governmental authority. 26.2.5.5 Deposits lost for causes other than Developer's negligence, royalty payments, and fees for permits and licenses. 26.2.5.6 The cost of utilities, fuel, and sanitary facilities at the site. 26.2.5.7 Minor expenses such as telegrams, long-distance telephone calls, telephone service at the site, expressage, and similar petty cash items in connection with the construction of the Facility and the Ancillary Projects. 26.2.5.8 Cost of premiums for additional bonds and insurance required because of changes in the scope of work. 26.3 The term "cost of the work" shall not include any of the following: {00519664.4306-9905631} Page 19 of 54 Page 822 of 971 26.3.1 Payroll costs and other compensation of Developer's officers, executives, principals (of partnership and sole proprietorships), general managers, estimators, lawyers, auditors, accountants, purchasing and contracting agents, expediters, timekeepers, clerks, and other personnel employed by Developer, whether at the construction site or in Developer's principal or branch office for general administration of the Project and not specifically included in the agreed- upon schedule of job classifications referred to herein, all of which are to be considered administrative costs covered by Developer. 26.3.2 Expenses of Developer's principal and branch offices other than Developer's office at the construction site. 26.3.3 Any part of Developer's capital expenses, including interest on Developer's capital employed for the construction of the Facility and the Ancillary Projects, and charged against Developer for delinquent payments. 26.3.4 Cost of premiums for all bonds and for all insurance whether or not Developer is required by the Contract Documents to purchase and maintain the same, except for additional bonds and insurance required because of changes in the scope of work. 26.3.5 Costs due to the negligence of Developer or any subcontractors, any consultants, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, including, but not limited to, the correction of defective or nonconforming work, disposal of materials or equipment wrongly supplied, and making good on any damage to property. 26.3.6 Other overhead or general expense costs of any kind and the cost of any item not specifically and expressly included herein. 26.4 The Contractor's fee allowed for overhead and profit shall be determined as follows: 26.4.1 A mutually acceptable fixed fee that shall not exceed percentages, as set forth below, or if none can be agreed upon. 26.4.2 A fee based on the following percentages of the various portions of the cost of the work: 26.4.2.1 For costs incurred under Articles 26.2.1, and 26.2.2, contractor's fees shall not exceed ten percent (10%); 26.4.2.2 For costs incurred under Articles 26.2.3 or 26.2.4, contractor's fee shall not exceed ten percent (10%); and if a subcontract is on the basis of the cost of the work plus a fee, the maximum allowable to the subcontractor as a fee for overhead and profit shall not exceed ten {00519664.4306-9905631 } Page 20 of 54 Page 823 of 971 percent (10%); and 26.4.2.3 No fee shall be payable on the basis of cost itemized under Articles 26.2.5 and 26.3. 26.5 The amount of credit to be allowed for any such change that results in a net decrease in cost shall be the amount of the actual net decrease. When both additions and credits are involved in any one change, the combined overhead and profit shall be figured on the basis of the net increase, if any. 26.6 Whenever the cost of any work is to be determined pursuant to Articles 26.1 through 26.2.4, Developer shall submit, in a form acceptable to the Project Manager, an itemized cost breakdown with the supporting data. 26.7 Where the quantity of work with respect to any item that is covered by a unit price is increased or decreased by more than twenty percent (20%) from the quantity of such work indicated in the Contract Documents, an appropriate Change Order may be issued to adjust the unit price, if warranted. 26.8 Whenever a change in the work is to be based on mutual acceptance of a lump sum, whether the amount is an addition, credit, or no -change -in -cost, Developer shall promptly submit to the Project Manager an estimate substantiated by a complete itemized breakdown. 26.8.1 Breakdown shall list quantities and unit prices for materials, labor, equipment, and other items of cost. 26.8.2 Whenever a change involves one or more subcontractors or consultants and the change is an increase in the contract price, overhead and profit percentages for the subcontractor or consultant shall be itemized separately. 26.9 Each Change Order shall state within the body of the Change Order whether it is based upon unit price, negotiated lump sum, or "cost of the work." ARTICLE 27. CHANGE OF CONTRACT TIlVIE. 27.1 Any claim for an extension of the contract time shall be based on written notice delivered by the party making the claim to the Project Manager promptly (but in no event later than seven (7) calendar days after the occurrence of the event giving rise to the claim and stating the general nature of the claim). Notice of the extent of the claim with supporting data shall be delivered within sixty (60) calendar days after such occurrence (unless the Project Manager allows, in writing, an additional period of time to ascertain more accurate data in support of the claim) and shall be accompanied by the claimant's written statement that the adjustment claimed is the {00519664.4 306-9905631 } Page 21 of 54 Page 824 of 971 entire adjustment to which the claimant has reason to believe it is entitled as a result of the occurrence of said event. All claims for adjustment in the contract time shall be determined by the Project Manager in accordance with the terms herein. No claim for an adjustment in the contract time shall be valid if not submitted in strict accordance with the requirements of this Article. 27.2 The contract time will be extended in an amount equal to time lost due to delays beyond the control of and through no fault or negligence of Developer if a claim is made therefor as provided herein. Such delays shall include, but not be limited to, acts of neglect by the City, or by any employee of the City, or any separate contractor employed by the City; Force Majeure. ARTICLE 28. NO DAMAGES FOR DELAY. Developer shall not be entitled to any payment or compensation of any kind from the City for direct, indirect, consequential, impact, or other costs, expenses, or damages, including, but not limited to, costs of acceleration or inefficiency arising because of delay, disruption, interference, or hindrance from any cause whatsoever, whether such delay, disruption, interference, or hindrance be reasonable or unreasonable, foreseeable or unforeseeable, or avoidable or unavoidable. Developer shall be entitled to terminate this Agreement as the sole and exclusive remedy for such resulting in delays in accordance with and to the extent specifically provided above. ARTICLE 29. SUBSTANTIAL COMPLETION. 29.1 When Developer considers that the construction of the Facility and the Ancillary Projects, or a designated portion thereof which is acceptable to the City, is substantially complete, Developer shall notify the Project Manager in writing and shall instruct the Contractor to prepare for submission to the Project Manager a thorough list of items to be completed or corrected, together with a schedule for completion of all items. 29.2 The Project Manager shall conduct an inspection to determine that the Facility and the Ancillary Projects or designated portion thereof is substantially complete. The Project Manager will then instruct Developer to prepare and deliver to the Project Manager a Certificate of Substantial Completion that shall establish the date of Substantial Completion. After review of the Certificate by the Project Manager, the City will either accept or reject the Certificate. The Project Manager, with the concurrence of Developer, shall fix the time within which Developer shall complete the items listed therein. Warranties required by the Contract Documents shall commence on the date of Substantial Completion. The Certificate of Substantial Completion shall be submitted to the City through the Project Manager and Developer for its written acceptance of the responsibilities assigned to them in such Certificate. {00519664.4 306-9905631} Page 22 of 54 Page 825 of 971 ARTICLE 30. FIELD ENGINEERING. 30.1 Developer shall provide and pay for field engineering services required for the construction of the Facility and the Ancillary Projects. This work shall include the survey work required in execution of the construction of the Facility and the Ancillary Projects. ARTICLE 31. FIELD LAYOUT OF THE WORK AND RECORD DRAWINGS. 31.1 Developer shall maintain in a safe place at the site one (1) record copy of all drawings (plans), specifications, addenda, written amendments, Change Orders, and written interpretations and clarifications in good order, annotated to show all changes made during construction, and in a format compatible with GADD equipment. These record documents, together with all approved samples and a counterpart of all approved Shop Drawings, shall be available to the Project Manager for reference. Upon completion of the construction, these record documents, samples, and Shop Drawings shall be delivered to the Project Manager. 31.2 At the completion of the construction of the Facility and the Ancillary Projects, Developer shall turn over to the City -a set of reproducible drawings that accurately reflect the "as -built" conditions of the new Facility and the Ancillary Projects and in a format compatible with the City's GADD equipment. All changes made to the construction documents, either as clarifications or as changes, shall be reflected in the plans. The changes shall be submitted on Mylar at least monthly to the Project Manager. These "as -built" drawings shall be signed and sealed by a registered Florida engineer or architect and shall be delivered and found to be acceptable. ARTICLE 32. PAYMENT FOR TESTS. Except when otherwise specified in the Contract Documents, the expense of all tests and test reports ordered by Developer shall be borne by Developer. ARTICLE 33. PROJECT SIGNAGE. 33.1 Developer and/or the Contractor shall furnish and erect signs, subject to the approval by the City, at the construction site, as directed by the Project Manager. Developer and/or the Contractor may install additional signage at the site, subject to approval by the Project Manager. 33.2 Developer shall supply and install wayfinding and building signs for the Facility. These signs shall be developed with the review and approval of the City and {00519664.4 306-99066311 Page 23 of 54 Page 826 of 971 subject to the City's Land Development Code requirements for signage. ARTICLE 34. CLEANING UP AND REMOVAL OF EQUIPMENT. 34.1 The City's Right to Clean Up. If a dispute arises between Developer and separate contractors as to the responsibility for cleaning up, the City may clean up and charge the cost thereof to contractors, including Developer, responsible therefor, as the Project Manager shall determine to be just. 34.2 Removal of Equipment. In case of termination of this Agreement before completion for any cause whatever, Developer, if notified to do so by the City, shall promptly remove any part or all of Developer's equipment and supplies from the property of the City, failing which the City shall have the right to remove such equipment and supplies at the expense of Developer. RTICLE 35. MISCELLANEOUS. 35.1 Rights of Various Interests. Whenever work being done by the City or by City contractors is contiguous to work covered by this Agreement, the respective rights of the various interests involved shall be established by the Project Manager to secure the completion of the various portions of the work in general harmony. 35.2 Records. Developer shall keep such records and accounts and require any and all architects, consultants, Contractor and subcontractors to keep records and accounts as may be necessary in order to record complete and correct entries as to personnel hours charged to this engagement. Such books and records shall be available at all reasonable times for examination and audit by the City and for the required retention period of the Florida Public Records Act (Chapter 119, Florida Statutes), if applicable, or if the Florida Public Records Act is not applicable, for a minimum period of three (3) years after termination of this Agreement. If any audit has been initiated and audit findings have not been resolved at the end of the retention period or three (3) years, whichever is longer, the books, records, and accounts shall be retained until resolution of the audit findings. If the Florida Public Records Act is determined by the City to be applicable to Developer's records, Developer shall comply with all requirements thereof; however, no confidentiality or nondisclosure requirement of either federal or state law shall be violated by Developer. 35.3 No Contingent Fee. Developer warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for Developer, to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for Developer, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this {00519664.4306-9905631 } Page 24 of 54 Page 827 of 971 Agreement. For the breach or violation of this provision, the City shall have the right to terminate this Agreement without liability, at its discretion, and to recover the full amount of such fee, commission, percentage, gift, or consideration. 35.4 Representative of the City and Developer. 35.4.1 It is recognized that questions in the day-to-day course of the construction of the Facility and the Ancillary Projects will arise. All communications pertaining to the day-to-day conduct of the work shall be addressed to the Project Manager. 35.4.2 Developer shall inform the Project Manager in writing of the representative of Developer to whom matters involving the day-to-day conduct of the construction shall be addressed. 35.5 All Prior Agreements Superseded; Amendments. The Contract Documents incorporate and include all prior negotiations, correspondence, conversations, agreements, or understandings applicable to the matters contained herein, and the parties agree that there are no commitments, agreements, or understandings concerning the subject matter of this Agreement that are not contained in the Contract Documents. Accordingly, it is agreed that no deviation from the terms hereof shall be predicated upon any prior representations or agreements, whether oral or written. It is further agreed that no modification, amendment, or alteration in the terms or conditions contained herein shall be effective unless contained in a written document executed with the same formality and of equal dignity herewith. 35.6 Notices. Whenever either party desires to give notice unto the other, it shall be given by written notice, sent by certified United States mail, with return receipt requested, addressed to the party for whom it is intended, at the place last specified; and the place for giving of notice shall remain such until it shall have been changed by written notice in compliance with the provisions of this paragraph. For the present, the parties designate the following as the respective places for giving of notice, to -wit: As to the City: Attn: City Manager City of Boynton Beach 100 East Ocean Avenue Boynton Beach, FL 33435 With a copy to: Michael D. Cirullo, Jr., Esq. Goren, Cherof, Doody & Ezrol, P.A. 3099 East Commercial Boulevard, Suite 200 Fort Lauderdale, Florida 33308 {00519664.4306-9905631 } Page 25 of 54 Page 828 of 971 Telephone: (954) 771-4500 Facsimile: (954) 771-4923 Email: mcirullo@gorencherofcom As to Developer: 35.7 Truth -In -Negotiation Certificate Signature of this Agreement by Developer shall act as the execution of a truth - in -negotiation certificate stating that wage rates and other factual unit costs supporting the costs for the design and construction of the Facility and the Ancillary Projects are accurate, complete, and current at the time of contracting. The original pricing and any additions thereto shall be adjusted to exclude any significant sums, by which the City determines the prices were increased due to inaccurate, incomplete, or noncurrent wage rates and other factual unit costs. All such pricing adjustments shall be made within one (1) year following the end of this Agreement. 35.8 Interpretation. The parties hereto acknowledge and agree that the language used in this Agreement expresses their mutual intent, and no rule of strict construction shall apply to either party hereto. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All personal pronouns used in this Agreement shall include the other gender, and the singular shall include the plural, and vice versa, unless the context otherwise requires. Terms such as "herein, "hereof," "hereunder," and "hereinafter" refer to this Agreement as a whole and not to the particular sentence, paragraph, Section, or Article where they appear, unless the context requires otherwise. Whenever reference is made to a Section or Article of this Agreement, such reference is to the Section or Article as a whole, including all of the subsections and subparagraphs of such Section or Article, unless the reference is expressly made to a particular subsection or subparagraph of such Section or Article. 35.9 Environmental Regulations. The City reserves the right to consider the history of citations and/or violations of environmental regulations in investigating a contractor's responsibility, and further reserves the right to declare Developer not responsible if the history of violations warrants such determination in the opinion of the City. Developer shall notify the City immediately of notice of any citation or violation that Developer may receive during the time of performance of this Agreement. 35.10 Applicable Law and Venue. This Agreement shall be interpreted and construed in accordance with and governed by the laws of the State of Florida. Venue for litigation concerning this Agreement shall be in Palm Beach County, Florida. {00519664.4 306-99056311 Page 26 of 54 Page 829 of 971 35.11 Public Entity Crime Statement. Developer acknowledges the existence of Chapter 287.133(2)(a), Florida Statutes ("Public Entity Crimes Act"), which provides, in part, that a person or affiliate who has been placed on the Convicted Vendor List following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to the City; may not submit a bid on a contract with the City for the construction or repair of a public building or public work; may not submit bids on leases of real property to the City; may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with the City; and may not transact business with the City in excess of the threshold amount provided in Chapter 287.017, Florida Statutes, for Category Two for a period of thirty- six (36) months from the date of being placed on the Convicted Vendor List. Violation of this Section by Developer shall result in termination of this Agreement by the City without penalty. 35.12 Joint Preparation. The preparation of this Agreement has been a joint effort of the parties, and the resulting document shall not, solely as a matter of judicial construction, be construed more severely against one of the parties than the other by virtue of the fact that it may have been physically prepared by one party or its attorneys. 35.13 Severance. In the event this Agreement or a portion of this Agreement is found by a court of competent jurisdiction to be invalid, the remaining provisions shall continue to be effective unless the City or Developer elects to terminate this Agreement. The election to terminate this Agreement based upon this provision shall be made within seven (7) calendar days after the finding by the court becomes final. 35.14 Waiver. No waiver of any provision of this Agreement shall be effective unless it is in writing, signed by the party against whom it is asserted, and any such written waiver shall only be applicable to the specific instance to which it relates and shall not be deemed to be a continuing or future waiver. 35.15 Drug -Free Workplace. Execution of this Agreement by Developer shall serve as Developer's certification that it either has or that it will establish a drug-free workplace consistent with Chapter 112.045 5, Florida Statutes. 35.16 Conflicts. Neither Developer nor its employees shall have or hold any continuing or frequently recurring employment or contractual relationship that is substantially antagonistic or incompatible with Developer's loyal and conscientious exercise of judgment related to its performance under this Agreement. Developer agrees that none of its employees shall, during the term of this Agreement, serve as an adverse or hostile expert witness against the City in any {00519664.4306-9905631 } Page 27 of 54 Page 830 of 971 legal or administrative proceeding in which he or she is not a party, unless compelled by court process, nor shall such persons give sworn testimony or issue a report or writing, as an expression of his or her opinion, that is adverse or prejudicial to the interests of the City in any such pending or threatened legal or administrative proceeding. The limitations of this Article shall not preclude such persons from representing themselves in any action or in any administrative or legal proceeding regarding this Agreement. In the event Developer is permitted to utilize subcontractors to perform any services required by this Agreement, Developer agrees to prohibit such subcontractors, by written contract, from having any conflicts as within the meaning of this Article. 35.17 Background Checks. Prior to hiring any employee, subcontractor, or consultant to provide services at the Facility, the Developer shall conduct a comprehensive criminal background check by accessing any Federal, State, or local law enforcement database available. The individual shall sign an authorization for the Developer to access criminal background information as provided in Exhibit "E" attached hereto and incorporated herein. The costs for the background checks shall be borne by the Developer. ARTICLE 36. SALES TAX INFORMATION. The Owner -Direct Special Conditions (Sales Tax Information) are incorporated herein by reference. ARTICLE 37. PUBLIC RECORDS. The City is public agency subject to Chapter 119, Florida Statutes. Developer shall comply with Florida's Public Records Law, as applicable. Specifically, Developer shall: a. Keep and maintain public records required by the City to perform the service. b. Upon request from the City's custodian of public records, provide the City with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119, Florida Statutes, or as otherwise provided by law. c. Ensure that public records that are exempt or that are confidential and exempt from public record disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and, following completion of the Agreement if the Developer does not transfer the records to the City. d. Upon completion of the contract, transfer, at no cost, to the City all public records in possession of the Developer or keep and maintain public records required by the City to perform the service. If the Developer transfers all public records to the City upon completion of the contract, Developer shall destroy any duplicate {00519664.4 306-99056311 Page 28 of 54 Page 831 of 971 public records that are exempt or confidential and exempt from public records disclosure requirements. e. If the Developer keeps and maintains public records upon completion of the contract, 'the Developer shall meet all applicable requirements for retaining public records. All records stored electronically by Developer must be provided to the City, upon request from the City's custodian of public records, in a format that is compatible with the information technology systems of the City. The failure of Developer to comply with the provisions set forth in the Agreement shall constitute a Default and Breach of the Agreement, for which, the City may terminate the Agreement. IF DEVELOPER HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO DEVELOPER'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THE AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: CITY CLERK PO BOX 310, BOYNTON BEACH, FLORIDA, 33425 561-742-6061 !V Ls ARTICLE 38. GROUND LEASE. Once the Facility has been completed in accordance with the terms herein, the City hereby demises and leases to Developer, and Developer hereby hires and takes from the City, subject to and with the benefit of the terms, covenants, conditions, and provisions of this Agreement, the property located at the Facility ("Facility Property"). The initial term of this Agreement (the "Term") shall be from the Effective Date for thirty (30) years until , unless terminated sooner pursuant to the terms herein. At least one (1) year prior to the expiration date of the Agreement or any extension period, the City and Developer shall have the option, to renew the Agreement for two (2) additional ten (10) year periods; provided the terms and conditions of the new Agreement are mutually agreeable to Developer and the City. Developer shall be responsible for performing all maintenance, repair and replacement for the Facility during the Term, at its sole cost and expense. Developer shall maintain the Facility to the same or higher standard as the City maintains the surrounding East Boynton Beach Little League complex including landscaping, painting of the Facility, parking (00519664.4 306-9905631 } Page 29 of 54 Page 832 of 971 overlay, cleanliness, A/C, and plumbing. ARTICLE 39. TERMINATION BY THE CITY POST -CONSTRUCTION. Following Final Completion, the City shall have the right to terminate this Agreement if any of the following shall occur. 39.1 If Developer at any time is in default of its material obligations, including payment or maintenance obligations, under this Agreement, and such default persists for thirty (30) days after written notice thereof is given by the City, or if such default cannot be cured within thirty (30) days, or such time as may be reasonably necessary to cure so long as Developer is diligently prosecuting to cure but not to exceed an additional thirty (30) days; 39.2 If Developer fails to pay to the City any amounts due or any other undisputed amounts required to be paid hereunder when due and such failure to pay persists for ten (10) business days after written notice thereof; 39.3 The filing by or against Developer of a bankruptcy, insolvency, receivership, reorganization or arrangement proceeding, or the initiation of any similar type of proceeding (if involuntary, the same not having been dismissed after sixty (60) days from the date of filing), or if Developer shall be unable or unwilling to pay its debts when due; or 39.4 Any breach in any representation or warranty made by Developer. Subject to the provisions of this Section and the terms of this Agreement, any termination by City shall result in the ownership of the Facility and the Ancillary Projects being forfeited to the City, and the City shall have the right to finish any incomplete construction of the Facility and the Ancillary Projects, demolish the building, or operate the Facility and the Ancillary Projects as the City deems in its best interest. Regardless of the foregoing, the City shall not be subject to any financial obligations or any debts owed by Developer related to the design, construction, operation, or maintenance of the Facility and the Ancillary Projects. ARTICLE 40. TERMINATION BY DEVELOPER. Following Final Completion, Developer shall have the right to terminate this Agreement if any of the following shall occur: 40.1 If the City at any time is in default of its material obligations under this Agreement, and such default persists for thirty (30) days after written notice thereof is given by Developer, or if such default cannot be cured within thirty (30) days, or such time as may be reasonably necessary to cure so long as City is diligently prosecuting to cure but not to exceed an additional thirty (30) days; {00519664.4 306-9905631 } Page 30 of 54 Page 833 of 971 40.2 If the City fails to pay to Developer any undisputed amounts required to be paid hereunder when due and such failure to pay persists for ten (10) business days after written notice thereof, 40.3 Any breach in any material respect of any representation or warranty made by the City herein. ARTICLE 41. WINDING -UP AND COOPERATION. If this Agreement expires or is otherwise terminated, the Parties shall promptly and cooperatively work together in the process of winding -up of Developer's operations under this Agreement, including (i) notification of staff, subcontractors, vendors, suppliers, and others having contractual or other arrangements with respect to the operation of the Facility and the Ancillary Projects, pursuant to the terms of the Agreement; (ii) completion of all calculations and schedules for reconciliations, inventory, accounting, claims, and payments arising under this Agreement; and (iii) transition, as applicable, to any third Person that will take over the operation of the Facility. The City and Developer shall use best reasonable commercial efforts to complete and constructively cooperate in the winding -up process as expeditiously as possible. ARTICLE 42. DUTIES UPON TERMINATION. Upon termination, Developer shall be required to: 42.1 Vacate the premises and leave the Facility in good repair and operating condition. Developer shall not have the right to remove any capital improvements, equipment, fixtures, or other assets or property belonging to City, or any of their respective agents or representatives; and 42.2 Remove all trash, stacks of material, supplies, tools, equipment, etc., belonging to Developer or its agents. Costs of such removals and restoration shall be borne by Developer. If such trash, stacks of materials, supplies, tools, equipment, etc., placed in the Facility by Developer or its agents have not been removed by Developer by the date of termination, it will be the option of the City to remove the same at Developer's cost, risk, and expense or to retain or dispose of the same or any part thereof, without payment or reimbursement to Developer, unless other arrangements have been made in writing between the City and Developer with regards to the removal thereof. ARTICLE 43. SURRENDER AND DELIVERY. Upon the expiration or termination date of this Agreement, whichever is earlier, Developer shall surrender the Facility and promptly deliver to the City all keys Developer and any of its officers, agents, and subcontractors have to the Facility. {00519664.4 306-9905631 } Page 31 of 54 Page 834 of 971 ARTICLE 44. REMEDIES. 44.1 Opportunity to Cure. Notwithstanding any other provisions in this Agreement, the City shall allow Developer at least thirty (30) calendar days to cure any deficiency in the operation and maintenance of the Facility other than the payment by the Developer of any fees required under the terms of this Agreement, subsequent to the provision of written notice to Developer regarding the deficiency. Except in an event of Termination for Cause, Developer shall be allowed to use the thirty (30) days' period as an Opportunity to Cure the deficiency. 44.2 Remedies Upon Default. Upon the occurrence of any of the events of default, and following any applicable cure period, then in addition to any other rights and remedies that either Party may have hereunder, at law, in equity, or otherwise, the non -defaulting Party may declare this Agreement terminated and recover Damages permitted by Applicable Law and/or seek specific performance or other injunctive or equitable relief. ARTICLE 45. GROUND LEASE FEE. 45.1 During the construction phase of the Facility and the Ancillary Projects, Developer shall not be required to make any payments towards the Ground Lease Fee or Permit Fee. 45.2 No later than thirty (30) days after substantial completion of the Facility and the Ancillary Projects, or on a date determined by the City, Developer shall pay an annual Ground Lease Fee of Ten Dollars ($10.00) per year for each and every year this Agreement remains in effect, payable in advance, to the City of Boynton Beach, Florida. All payments are due payable by the 10th day of January at the start of each calendar year. ARTICLE 46. MONTHLY PERMIT FEE. Developer shall pay a Monthly Permit Fee that shall cover such things as common -area maintenance costs and other costs associated with the maintenance and upkeep of the East Boynton Little League Complex. The Monthly Permit Fee payments shall be based on the following graduated scale: Years 1 and 2: $400.00 per month Year 3: $800.00 per month Year 4: $1,200.00 per month {00519664.4 306-99056311 Page 32 of 54 Page 835 of 971 Year 5 through Expiration: $1,300.00 per month Dlus a bi-annual (every other year) increase based on the most recent 12 -month change in the following U.S. Government Index from the Bureau of Labor Statistics: Consumer Price Index, All Goods and Services, All Items, Miami -Ft. Lauderdale Area. All payments are due payable by the 10th day of the month that the payment becomes due. ARTICLE 47. TRANSFER OF OWNERSHIP OF FACILITY AND THE ANCILLARY PROJECTS. This is a public-private partnership Project, subject to the provisions of Chapter 255.065, Florida Statutes. Upon the expiration of the Term, the Facility and the Ancillary Projects shall revert in ownership to the City, free and clear of all claims by Developer or any other entity. At that time, Developer, its successors, and assignees, as may be applicable, shall transfer full legal ownership of the Facility and the Ancillary Projects to the City of Boynton Beach, Florida. ARTICLE 48. TAXES AND FINES. Developer shall pay all taxes that may be assessed on its design, construction, operation, lease, and maintenance of the Facility and the Ancillary Projects. The City shall not be liable for any taxes, fines, or penalties that may be levied against the Facility and the Ancillary Projects during the time of Developer's occupancy of the building. ARTICLE 49. SUBLEASING. Developer may sublease areas of the Facility, provided that any subleasing must be pre - approved by the City in writing, and the subtenants shall be subject to and bound by all applicable terms of this Agreement, provided the activities being proposed by Developer's subtenant(s) are related to or complement the Intended Use. Developer shall provide a copy of the sublease agreement to the City. ARTICLE 50. ECONOMIC IMPACT REPORT. Each calendar year Developer shall provide the City with a general analysis and report detailing the economic impact to the City and local area of the operations of the Facility and its related programs. The report shall include the estimated number and the length of stay for clients who travel to the Facility for any purpose, including, but not limited to, training, seminars, collegiate summer leagues, special clinics, and showcases. The report shall contain a short paragraph with projections for the next year. The City and Developer shall determine the due {00519664.4 306-9905631} Page 33 of 54 Page 836 of 971 date for the first report. ARTICLE 51. UTILITIES. It shall be the responsibility of Developer to apply for and connect all temporary utility service for the Facility required during the construction phase of the Facility. Upon completion of construction and during the operation of the Facility, Developer shall be responsible for the connection and payment of all permanent utility service to the building, excluding the public bathroom accessible from outside. ARTICLE 52. INDEMNIFICATION OF THE CITY AND INSURANCE. 52.1 Developer shall indemnify and hold harmless the City, its officers, and employees from liabilities, damages, losses, and costs, including, but not limited to, reasonable attorneys' fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of Developer and other persons employed or utilized by Developer in the operation and maintenance of the Facility and the Ancillary Projects. 52.2 Required Insurance. 52.2.1 Com rehensive General Liabili ° with minimum limits of One Million Dollars ($1,000,000.00) per occurrence combined single limit for Bodily Injury Liability and Property Damage Liability shall include: a. Premises and/or Operations on an occurrence basis. b. Independent Contractors. c. Products and/or Completed Operations Liability on an occurrence basis. d. Explosion, Collapse, and Underground Coverages. e. Broad Form Property Damage. f. Broad Form Contractual Coverage applicable to this specific Agreement, including any hold harmless and/or indemnification agreement. g. Personal Injury Coverage with Employees and Contractual Exclusions removed with minimum limits of coverage equal to those required for Bodily Injury Liability and Property Damage Liability. 52.2.2 Business Automobile Liabilit , with minimum limits of One Million Dollars ($1,000,000.00) per occurrence combined single limit for Bodily Injury Liability and Property Damage Liability. Coverage shall be afforded on a form no more restrictive than the latest edition of the Business Automobile Liability Policy, without restrictive endorsements, as filed by the Insurance Services Office and shall include: {00519664.4306-9905631 } Page 34 of 54 Page 837 of 971 Owned vehicles. Non -owned and hired vehicles. 52.3 Notice of Cancellation, Expiration, and/or Restriction: The policy(ies) shall be endorsed to provide the City with thirty (30) calendar days' advanced written notice of cancellation, expiration, and/or restriction to the attention of the Project Manager, c/o Risk Management, City of Boynton Beach, 100 East Ocean Avenue, Boynton Beach, FL 33435. 52.4 Developer shall furnish to the Project Manager Certificate(s) of Insurance evidencing the insurance coverages required herein prior to commencement of any work on this Project. Such certificate(s) shall reference this Agreement. The City reserves the right to require a certified copy of such policies upon request. All certificates shall state that the City shall be given thirty (30) calendar days' prior written notice of cancellation and/or expiration. 52.5 The official title of the City is "City of Boynton Beach." This official title shall be used in all insurance or other legal documentation. The City shall be included as "Additional Insured" with respect to liability arising out of operations performed for the City by or on behalf of Developer or acts or omissions of Developer in connection with such operation. ARTICLE 53. ENVIRONMENTAL MATTERS. City represents and warrants to Developer that, to the best of the City's knowledge, (i) the Property is in full compliance with all Environmental Laws; (ii) there has been no discharge of Hazardous Materials at the Property; (iii) there are no underground storage tanks, septic tanks, potable water well or septic fields in, on, at, under, or about the Property; and (iv) no claim, action, suit, or proceeding is pending or threatened against the City or any third party arising directly or indirectly out of the discharge of Hazardous Materials at the Property, or the presence of underground storage tanks beneath the Property. Simultaneously with the execution of this Lease, City shall deliver to Developer all environmental reports concerning the Property in City's possession. Further, the City agrees to indemnify, defend, and hold Developer harmless from any claims, judgments, damages (including, without limitation, natural resource damages), fines, penalties, costs, liabilities, and/or losses, including, without limitation, reasonable attorney's fees, reasonable consultants fees, and reasonable expert fees that arise during or after the term of this Lease by reason of the presence of Hazardous Materials in the soil, groundwater, soil vapor, or other environmental media at, on, under, to or from the Property based on or in connection with events occurring or conditions arising or accruing (a) prior to the Commencement Date or (b) during the term of this Lease that are not caused or introduced by Developer, its assignees, subtenants or licensees, clients, or the employees or agents of any of them. "Environmental Laws" means any and all federal, state, local, and foreign statutes, laws, codes, rules, regulations, ordinances, environmental permits, guidelines, standards, and directives and all applicable agreements and judicial and administrative orders and decrees pertaining to {00519664.4 306-9905631 } Page 35 of 54 Page 838 of 971 health, safety, or the environment, and all common law providing for any right or remedy with respect to environmental matters, each as currently in effect or hereinafter amended, adopted, promulgated, or enacted. "Hazardous Materials" means any and all materials, pollutants, contaminants, wastes, chemicals, or substances listed, defined, designated, classified, or considered or regulated as dangerous, special, hazardous, toxic, or radioactive, or any terms of similar import, under any applicable Environmental Laws, including petroleum and any derivation or by-product thereof, asbestos and asbestos- containing materials, lead-based paint, PCBs, and perchlorethylene or related or similar dry cleaning. ARTICLE 54. REPRESENTATION AND WARRANTIES OF THE CITY. The City hereby represents and warrants to Developer that (i) the City has full power and authority to enter into this Agreement; (ii) the City is the sole fee owner of the Property; (iii) to the City's knowledge, the Property complies with all environmental laws and regulations, and all other federal, state, and local rules, regulations, laws, statutes, and ordinances; (iv) the City has obtained all required consents and approvals in order to enter into this Lease (including from all Major Title Document Holders, as hereinafter defined); (v) there are no restrictions (including, without limitation, declarations, covenants, easements, ground leases, and/or mortgages) that would prohibit, interfere with, restrict, or otherwise impair Developer's ability to use the Property for the uses permitted hereunder, and the City shall not permit or suffer any such restrictions that would prohibit, interfere with, restrict, or otherwise impair Developer's ability to use the Property for such uses; (vi) the City has not received any notice of any actual or threatened action, litigation, or proceeding by any organization, person, individual, or governmental agency against the Property or the City with respect to the Property; (vii) the Property is free and clear of any leases, tenancies, or claims of parties in possession; and (vii) this Agreement and the rights granted to Developer hereunder shall not violate and are not inconsistent with any other agreement relating to the Property. The City shall have an affirmative obligation to immediately provide Developer with written notice in the event of any change with regard to the representations set forth above. ARTICLE 55. CASUALTY. 55.1 In case any improvement(s) or any part thereof shall be damaged or destroyed by fire or other casualty, or ordered to be demolished by the action of any public authority in consequence of a fire or other casualty, Developer may terminate this Ground Lease and shall have no obligation to repair or rebuild the improvements but shall be obligated to remove any debris and properly secure the Property. 55.2 In case of any damage or destruction occurring in the last three (3) years of the Term, or during any Renewal Period, to the extent of fifty percent (50%) or more of the insurable value of the improvement(s), Developer may, at its option, to be evidenced by notice in writing given to the City within ninety (90) days after the 100519664.4 306-9905631 1 Page 36 of 54 Page 839 of 971 occurrence of such damage or destruction, elect to terminate this Ground Lease as of the date of said damage or destruction. ARTICLE 56. QUIET ENJOYMENT. The City agrees that Developer shall and may peaceably and quietly have, hold, and enjoy the Facility during the Term, subject to the covenants and conditions of this Ground Lease. [This Space is Intentionally Blank] {00519664.4 306-9905631 } Page 37 of 54 Page 840 of 971 IN WITNESS WHEREOF, the parties hereto certify that they have read and understand this Agreement and all Contract Documents and attachments hereto and have caused this Agreement to be executed by their duly authorized officers on the date hereinabove first written. Signed, sealed and delivered in the presence of: 1'. of Wi. ( itness signature q (Print name of Witness) APPRO/ED AS TO F(': M A ' l 9 CITY ATTORNEY'S OFF STATE OF FLORIDA COUNTY OF PALM BEACH CITY OF BOYNTON BEACH, a Florida municipal corporation A " M SERGA notariz tionoBY� phys� al presence, an offic Y, that % I �� before me by means of online er my authorized in the State and County aforesaid to take acknowledgments, __ _ i)ersonally appeared as Ty Penserga, Mayor, of the City of Boynton Beach on behalf of the City, and said person(s) either (� produced the following as identification or are personally known to me. -- u ty d above, this da of UTNE an —'20 n State asYlist y an official sea m the County a e Notary Pu " �fug u)ne ..... ............__.. __. _...m._.......................... Print Name of. Notary Public My Commission Expires:a° [Seal] otY P�ev TAMMY L STANZIONE a o Commission # GG 306158 iExpires March 25, 2023 {00519664.4306-9905631 } Page 38 of 54 1 Fry`oe BendadThruSw%rtNomryseM= Page 841 of 971 STATE OF FLORIDA COUNTY OF PALM BEACH DEVELOPER: BY ........w Print Mame A�1 Title: res�dt�� I HEREBY,,eERTIFY, that on ...L._.:.„Z , before me by means of online notarization, or V physical presen officer duly authorized in the State and County aforesaid to take acknowledgments, ersonally appear as and said person(s) either produced the following as identification _ m e or C are personally known to me. pp ��SS my hand and official seal in the County and State as listed above, this 22, �day of V�J�WI� 2022. Print ame of Notary Publ>�,,, My Commission Expires ,f [Se 1 ”' SERGELME VICTOR JEAN 3APTlSTE Notary PuDlic • State of Florida i Commission ; riH 230468 My Comm. Expires p Mar 4, 2026 � Bonded through National ,rotary assn, {005196(14.4 306-9905631 ] Page 39 of 54 Page 842 of 971 EXHIBIT - "Al" PROPERTY S/D OF 33-45-43, W 3/4 LT 5 (LESS PB30P154, PB114P9 & PB125P99) {00519664.4 306-99056311 Page 40 of 54 Page 843 of 971 EXHIBIT "A2" FACILITY PROPERTY {00519664.4 306-99056311 Page 41 of 54 Page 844 of 971 EXHIBIT "B" PROPOSED SITE PLAN (00519664.4 306-9905631 ) Page 42 of 54 Page 845 of 971 EXHIBIT 11CIV PROGRAMMING SCHEDULE 1) Hours of Operation: • Monday — Friday: 6:00am — 5:00pm • Saturday: 6:00am — 2:00pm • Sunday: By appointment only 2) Parking Needs: • Shall be determined by the City and shall be adhered to by the Developer 3) Programming and Activities Partnership • No underprivileged children will be turned away. Developer shall offer camps, coaching instruction, scholarship programs and whatever else the Developer can do in its best efforts to help the athletes within the community. • During the summer months and holiday season Developer shall also hold camps instructed by current and former professional athletes, coaches' clinics and miracle league games. • Facility shall include batting cages, bullpens, strength & conditioning training, speed & agility training, nutrition assistance, conference rooms, offices and an analytic software equipment area for all guest to utilize. {00519564.4 306-9905631 } Page 43 of 54 Page 846 of 971 EXHIBIT 1,D" CONTRACTOR REQUIREMENTS 1. GENERAL QUALITY OF WORK. a. Articles, materials, and equipment specified or shown on drawings shall be new and shall be applied, installed, connected, erected, used, cleaned, and conditioned for proper forming, as per the manufacturer's directions, and as approved by the Project Manager. The Contractor shall, if required, furnish satisfactory evidence as to kind and quality of the materials. b. The Contractor shall apply, install, connect, and erect manufactured items or materials according to the recommendations of the manufacturer when such recommendations are not in conflict with the Contract Documents. The Contractor shall furnish copies of the manufacturer's recommendations to the Project Manager before proceeding with the work. C. The Contractor shall at all times enforce strict discipline and good order among its employees, consultants, and subcontractors at the Project site and shall not employ on the Project any unfit person or anyone not skilled in the work assigned to him or her. d. The Contractor shall maintain suitable and sufficient guards and barriers, and at night suitable and sufficient lighting for the prevention of accidents and thefts. 2. CHECK DRAWINGS AND DATA a. The Contractor shall take measurements and verify all dimensions, conditions, quantities and details shown on the drawings, schedules, or other data, and shall notify the Project Manager of all errors, omissions, conflicts, and discrepancies found therein. Failure to discover or correct errors, conflicts, or discrepancies shall not relieve the Contractor of full responsibility for unsatisfactory work, faulty construction, or improper operation resulting therefrom nor from rectifying such condition at the Contractor's own expense. The Contractor will not be allowed to take advantage of any error or omission. 3. WARRANTY The Contractor shall warrant to the City and Developer that all materials and equipment furnished for the Facility and the Ancillary Projects shall be new, unless otherwise specified, and that.all work for the construction of the Facility shall be of good quality, free from faults and defects, and in conformance with the Contract Documents. All work for the Facility and the Ancillary Projects not conforming to {00519664.4 306-9905631 } Page 44 of 54 Page 847 of 971 4. 5. 7. 8 these requirements, including substitutions not properly approved and authorized, may be considered defective. If required by the Project Manager, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. DELIVERY AND STORAGE OF MATERIALS. a. Material stored on the job site shall be verified as to quantity and condition by the Contractor, prior to acceptance. Safeguarding the material shall be the responsibility of the Contractor. Any materials that are lost, stolen, damaged, or otherwise deemed unacceptable by the Project Manager shall be replaced at no cost to the City. b. Materials stored off the job site shall be stored in a bonded warehouse. Safeguarding the material shall be the responsibility of the Contractor. DEFECTIVE WORK. a. The Project Manager shall have the authority to reject or disapprove work for the Facility and the Ancillary Projects that the Project Manager finds to be defective. If required by the Project Manager, the Contractor shall promptly, as directed, correct all defective work or remove it from the construction site and replace it with nondefective work. CONSTRUCTION AREA a. The Contractor shall use areas approved by the City for deliveries and personnel. Contract limits of construction area shall be indicated on the drawings. Equipment, material, and personnel shall be in conformance with this Contract. b. To provide for maximum safety and security, the Contractor shall erect and maintain all necessary barricades and any other temporary walls and structures, and boarding, as required, to protect life and property during the period of construction. LEGAL RESTRICTIONS AND TRAFFIC PROVISIONS. a. The Contractor shall conform to all applicable laws, regulations, or ordinances with regard to labor employed, hours of work, and its contractor's general operations. The Contractor shall also conduct its operations so as not to close any thoroughfare nor interfere in any way with traffic on highways without the written consent of the proper authorities. DAMAGE TO EXISTING FACILITIES, EQUIPMENT, OR UTILITIES. {00519664.4 306-99056311 Page 45 of 54 Page 848 of 971 a. Existing utilities have been identified insofar as information is reasonably available; however, it will be the Contractor's responsibility to verify such information and to preserve all existing utilities whether shown on the drawings or not. If utility conflicts are encountered by the Contractor during construction, the Contractor shall give sufficient notice to the owners of the utilities so that they may make the necessary adjustments. b. The Contractor shall exercise care and take all precautions during construction operations to prevent damage to any existing facilities, equipment, or utilities. Any damage caused by the Contractor shall be reported immediately to the Project Manager, and such work shall be repaired and/or replaced by the Contractor in a manner approved by the City. All costs to repair and/or replace any damage to existing facilities, equipment, or utilities shall be the sole responsibility of the Contractor, and such repair or replacement shall be performed expeditiously without cost to the City. C. The Contractor shall provide the type of required protection for finished work at all times and protect adjacent work during cleaning operations and make good any damage resulting from neglect of this precaution. d. Protection of work shall include protecting work that is factory finished during transportation, storage, and during and after installation. Where applicable and as required, the Contractor shall close off areas where certain work has been completed to protect it from any damages caused by others during their operations. e. The Contractor shall store materials and shall be responsible for and shall maintain partly or wholly finished work during the construction of the Facility and the Ancillary Projects until the final acceptance of the structure. If any materials or part of the work should be lost, damaged, or destroyed by any cause or means whatsoever, the Contractor shall satisfactorily repair and replace the same at its own cost. The Contractor shall maintain suitable and sufficient guards and barriers, and at night, suitable and sufficient lighting for the prevention of accidents. f. To all applicable Sections where preparatory work is part of work thereon, the Contractor shall carefully examine surfaces over which its finished work is to be installed, laid, or applied before commencing with the work. The Contractor shall not proceed with said work until defective surfaces on which work is to be applied are corrected satisfactorily to the Project Manager's satisfaction. Commencement of work shall be considered acceptance of surfaces and conditions. 9. CONTINUATION OF WORK. {00519664.4306-9905631 } Page 46 of 54 Page 849 of 971 The Contractor shall carry on construction and adhere to the progress schedule during all disputes or disagreements between Developer and the City. No work shall be delayed or postponed pending resolution of any disputes or disagreements. 10. SHOP DRAWINGS. a. The Contractor shall submit Shop Drawings for all equipment, apparatus, machinery, piping, wiring, fabricated structures, and manufactured articles. The purpose of the Shop Drawings is to show the suitability, efficiency, technique of manufacture, installation requirements, details of the item, and evidence of its compliance or noncompliance with the Contract Documents. b. The Contractor shall submit to the Project Manager a complete list of preliminary data on items for which the Shop Drawings are to be submitted. Approval of this list by the Project Manager shall in no way relieve the Contractor from submitting complete Shop Drawings and providing materials, equipment, etc., fully in accordance with the Contract Documents. This procedure is required in order to expedite final approval of the Shop Drawings. C. After the approval of the list of items required in 5(b) above, the Contractor shall promptly request the Shop Drawings from the various manufacturers and suppliers. d. The Contractor shall thoroughly review and check the Shop Drawings, and each and every copy shall show its approval thereon. e. If the Shop Drawings show or indicate departures from the Contract requirements, the Contractor shall make specific mention thereof in its letter of transmittal. Failure to point out such departures shall not relieve the Contractor from its responsibility to comply with the Contract Documents. f. No work called for by the Shop Drawings shall be done until the Drawings have been approved by the Project Manager. Approval shall not relieve the Contractor, from responsibility for errors or omissions of any sort on the Shop Drawings. g. No approval will be given to partial submittal of the Shop Drawings for items that interconnect and/or are interdependent. It is the Contractor's responsibility to assemble the Shop Drawings for all such interconnecting and/or interdependent items, check them, and then make one (1) submittal to the Project Manager along with the Contractor's comments as to compliance, noncompliance, or features requiring special attention. h. If catalog sheets or prints ofthe manufacturers' standard drawings are submitted {00519664.4 306-99056311 Page 47 of 54 Page 850 of 971 as Shop Drawings, any additional information or changes on such drawings shall be typewritten or lettered in ink. i. The Contractor shall submit to the Project Manager the number of copies required by the Project Manager. Resubmissions of Shop Drawings shall be made in the same quantity until final approval is obtained. The Project Manager's approval of the Shop Drawings will be general and shall not relieve the Contractor of responsibility for the accuracy of such Drawings, nor for the proper fittings and construction of the work, nor for the furnishing of the materials or work required by the Contract and not indicated on the Drawings. No work called for by the Shop Drawings shall be done until the Drawings have been approved by the Project Manager. Approval shall not relieve the Contractor from responsibility for errors or omissions of any sort on the Shop Drawings. k. The Contractor shall keep one (1) set of the Shop Drawings marked with the Project Manager's approval at the construction site at all times. 11. FIELD LAYOUT OF THE WORK AND RECORD DRAWINGS. a. The entire responsibility for establishing and maintaining a line and grade in the field lies with the Contractor. The Contractor shall maintain an accurate and precise record of the location and elevation of all pipelines, conduits, structures, manholes, handholds, fittings, and the like and shall deliver these records in good order to the Project Manager as the work is completed. These records shall serve as a basis for record drawings. The cost of all such field layout and recording work shall be paid by Developer. 12. SAFETY AND PROTECTION. a. The Contractor shall be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the construction of the Facility and the Ancillary Projects. The Contractor shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury, or loss to: i. All employees on the construction site and other persons who may be affected thereby; (1) All the work and all materials or equipment to be incorporated therein, whether in storage on or off the construction site; and (2) Other property at the site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures, and {00519664.4 306-9905631 } Page 48 of 54 Page 851 of 971 utilities not designated for removal, relocation, or replacement in the course of construction. ii. The Contractor shall comply with all applicable laws, ordinances, rules, regulations, and orders of any public body having jurisdiction for the safety of persons or property or to protect them from damage, injury, or loss, and shall erect and maintain all necessary safeguards for such safety and protection. The Contractor shall notify owners of adjacent property and utilities when prosecution of the work may affect them. All damage, injury, or loss to any property referred to in Section 6(i) above, caused directly or indirectly, in whole or in part, by the Contractor, any subcontractors or consultant, or anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, shall be remedied by the Contractor. The Contractor's duties and responsibilities for the safety and protection of the construction site shall continue until the construction of the Facility and the Ancillary Projects arecompleted, and the Project Manager has issued a notice to the Contractor that the Facility and the Ancillary Projects are acceptable, except as otherwise provided in Article 27, Use of Com lete P rligns.. iii. The Contractor shall designate a responsible member of its organization at the Project site whose duty shall be the prevention of accidents. This person shall be the Contractor's Designated Representative unless otherwise designated in writing by Contractor to the City. 13. CLEANING UP AND REMOVAL OF EQUIPMENT. a. The Contractor shall at all times keep the construction site free from accumulation of waste materials or rubbish caused by the Contractor's operations. At the completion of the construction, the Contractor shall remove all its waste materials and rubbish from and about the site, as well as its tools, construction equipment, machinery, and surplus materials. If the Contractor fails to clean up at the completion of the construction, the City may do so, and the cost thereof shall be charged to the Contractor. 14. BONDS, INDEMNIFICATION, AND INSURANCE. Prior to commencement of any work on the construction of the Facility and the Ancillary Projects, the Contractor shall furnish a Performance and Payment Guaranty consisting of either: a. Performance and PaviiientBond Suret {00519664.4 306-9905631} Page 49 of 54 Page 852 of 971 i. A Performance and Payment Bond (separate Performance Bond and separate Payment Bond) of the form and containing allthe provisions of the Performance and Payment Bond (Performance Bond and Payment Bond forms), attached hereto and made a part hereof. ii. The Bonds shall be in the amount of one hundred ten percent (110%) of the Contract amount guaranteeing to the City the completion and performance of the Project covered in this Agreement, as well as full payment of all suppliers, materialmen, laborers, or subcontractors employed pursuant to the construction of the Facility and the Ancillary Projects. Such Bonds shall be with a surety company that is qualified pursuant to Section c t Du lifications of Surety below. iii. Such Bonds shall be in effect for one (1) year after completion and acceptance of the Facility and the Ancillary Projects with liability equal to one hundred ten percent (110%) of the Contract price, or an additional Bond shall be conditioned that the Contractor shall, upon notification by the City, correct any defective or faulty work or materials that appear within one (1) year after completion of the construction. iv. The Payment and Performance Bond required herein shall be in conformance with Chapter 255.051, Florida Statutes, and shall be on such forms provided by the City. V. The City,, shall not be responsible for the cost to secure the Performance and Payment Bonds required for the construction of the Facility and the Ancillary Projects. b. Performance and Payment Guaranty. In lieu of a Performance and Payment Bond, the Contractor may furnish an alternate form of security that may be in the form of cash, money order, certified check, cashier's check, or irrevocable letter of credit. Such alternate forms of security shall be for the same purpose and shall be subject to the same conditions as those applicable above and shall be held by the City for one (1) year after completion and acceptance of the Facility and the Ancillary Projects. C. Qualifications f S e L A Performance Bond and separate Payment Bond shall be executed by a surety company shown on the United States Treasury approved list of companies and also authorized to do business in the State of Florida. Both Bonds shall show the City as obligee. ii. The surety company shall have at least the following minimum ratings in the {00519664.4306-9905631} Page 50 of 54 Page 853 of 971 latest version of AM. Best's Insurance Report: Amount of Bond Policyholder's Best's Financial Ratings Size Category 500,001 to 1,000,000 B+ Class I 1,000,001 to 2,000,000 B+ Class II 2,000,001 to 5,000,000 A Class Ill 5,000,001 to 10,000,000 A Class IV 10,000,001 to A Class V 25,000,000 25,000,001 to A Class VI 50,000,000 50,000,001 or more A Class VII iii. Indemnification of the Cit (1) The Contractor shall indemnify and hold harmless the City, its officers, and employees from liabilities, damages, losses, and costs, including, but not limited to, reasonable attorneys' fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of the Contractor and other persons employed or utilized by the Contractor in the design and construction of the Facility and the Ancillary Projects. The indemnification herein is limited to the greater of the Insurance of the Contractor for such claim or Five Million Dollars ($5,000,000.00), whichever is greater. Regardless of the foregoing, this provision shall be limited by Chapter 725.06, Florida Statutes. (2) The indemnification provided above shall obligate the Contractor to defend at its own expense to and through appellate, supplemental, or bankruptcy proceeding, or to provide for such defense, at the City Attorney's option, any and all claims of liability and all suits and actions of every name and description that may be brought against the City that may result from the operations and activities under this Agreement, whether performed by the Contractor, its subcontractors, its consultants, or by anyone directly or indirectly employed by any of the above. (3) The execution of this Agreement by the Contractor shall obligate the Contractor to comply with the foregoing indemnification provision; however, the collateral obligation of insuring this indemnity shall be complied with as set forth in Section 8. d. Insurance The Contractor shall provide, pay for, and maintain in force at all times such insurance, including Workers' Compensation Insurance, Employer's Liability Insurance, {00519664.4 306-9905631 } Page 51 of 54 Page 854 of 971 Comprehensive General Liability Insurance, and shall provide, pay for, and maintain in force at all times during the construction, operation, and maintenance ofthe Facility and the Ancillary Projects, Professional Liability Insurance to assure to the City the protection contained in the foregoing indemnification and save harmless clauses undertaken by the Contractor. The Comprehensive General Liability Policy shall clearly identify the foregoing indemnification and save harmless clauses by the additional named insured endorsement under this Article. Such policy or policies shall be issued by companies authorized to do business in the State of Florida and have a resident agent licensed in Florida. The Contractor shall specifically protect the City by naming the City as an additional named insured under the Comprehensive General Liability Insurance Policy hereinafter described. i. ProfessionalLiability 'Errors and Omissions'', Intentionally Omitted. ii. Workers' Co liensation Insurance to apply for all employees in compliance with the "Workers' Compensation Law" of the State of Florida and all applicable federal laws. In addition, the policy(ies) shall include Employer's Liability with limits of One Million Dollars ($1,000,000.00) each accident, One Million Dollars ($1,000,000.00) each disease, and One Million Dollars ($1,000,000.00) aggregate by disease. iii. Comprehensive General Liabilii , with minimum limits of One Million Dollars ($1,000,000.00) per occurrence combined single limit for Bodily Injury Liability and Property Damage Liability shall include: (1) Premises and/or Operations on an occurrence basis. (2) Independent Contractors. (3) Products and/or Completed Operations Liability on an occurrence basis. (4) Explosion, Collapse, and Underground Coverages. (5) Broad Form Property Damage. (6) Broad Form Contractual Coverage applicable to this specific Agreement, including any hold harmless and/or indemnification agreement. (7) Personal Injury Coverage with Employees and Contractual Exclusions removed with minimum limits of coverage equal to those required for Bodily Injury Liability and Property Damage Liability. iv. Business Automobile, Liability with minimum limits of One Million Dollars ($1,000,000.00) per occurrence combined single limit for Bodily Injury Liability and Property Damage Liability. Coverage shall be afforded on a form no more restrictive than the latest edition of the Business Automobile Liability Policy, without restrictive endorsements, as filed by the Insurance Services Office and shall include: Owned vehicles. Non -owned and hired vehicles. {00519664.4 306-99056311 Page 52 of 54 Page 855 of 971 v. Builder's Risk Insurance - Coverage shall be "All Risk" coverage for one hundred percent (100%) of the completed value of the structure(s), building(s) or addition(s). Where contract calls for install of machinery or equipment, the policy must be endorsed to provide coverage on "All Risk" basis during transit and installation. The policy must be issued with a deductible of not more than $50,000 per claim. Builders Risk/ Installation Floater - The Contractor shall take out and maintain, as applicable, during the construction of the Facility and any Ancillary Projects, "all risk" type builders risk insurance satisfactory to the City for the completed value of the Facility and any Ancillary Projects that shall protect the Contractor and the City as their interests may appear, for the following hazards to the work, encompassing structures in the course of construction, including foundations, additions, attachments and all permanent fixtures belonging to and constituting a part of said structures, as well as materials and equipment suitably stored at the site and the Contractor's construction equipment, materials, and temporary structures: (1) Fire and lightning, vandalism, and malicious mischief; (2) Extended coverage including windstorm, hail, flood, explosion, riot, civil commotion, aircraft, vehicle, and smoke damage. e. Notice of Cancellation, Expiration, and/or Restriction: The policy(ies) shall be endorsed to provide the City with thirty (30) calendar days' advanced written notice of cancellation, expiration, and/or restriction to the attention of the Project Manager, c/o Risk Management Coordinator, City of Boynton Beach, 100 East Ocean Avenue, Boynton Beach, FL 33435. f. The Contractor shall furnish to the Project Manager Certificate(s) of Insurance evidencing the insurance coverages required herein prior to commencement of any work on this Project. Such certificate(s) shall reference this Agreement. The City reserves the right to require a certified copy of such policies upon request. All certificates shall state that the City shall be given thirty (30) calendar days' prior written notice of cancellation and/or expiration. g. The official title of the City is "City of Boynton Beach" This official title shall be used in all insurance or other legal documentation. The City shall be included as "Additional Insured" with respect to liability arising out of operations performed for the City by or on behalf of the Contractor or acts or omissions of the Contractor in connection with such operation. {00519664.4 306-99056311 Page 53 of 54 Page 856 of 971 r� u CITY OF BOYNTON BEACH RECREATION & PARKS DEPARTMENT F.XXWBIT E Background Screening Acknowledgement This Exhibit "E" is attached to and shall be considered as part of the Agreement between the CITY and Developer. The Developer through the undersigned named below, hereby attests that Developer understands and agrees to comply with the Level H background screening requirements more particularly described in Section 435.04, Florida Statutes. Developer acknowledges and agrees no person other than those whom have successfully passed all aspects of the Florida Department of Law Enforcement Level II background screening process within the previous five (5) years shall be permitted to act on behalf of or in any official capacity with Developer for Programming at the Little League Park and/or any City Owned Facility during the term of Agreement. Developer acknowledges and agrees that it is responsible for ensuring all instructors, teachers, staff, volunteers and agents of Developer successfully complete and pass the Level H background screening in advance of all authorized activities. CITY shall not be responsible for the costs associated with the Level II background screening required herein. Developer agrees to indemnify CITY against any claims or cause of action arising from or related to Developer's failure to ensure all individuals acting on behalf of or in any official cap city with Developer have completed and passed the required Level H background screenig'asequired herein. Primetime Sports Group, LLC: �. Signature _.m. �.....�.� .... .... .... __.._......_......_Date Name (Print) ....... __ Phone Nu Imber Emailrlw STATE OF FLOIitIDA � j� � COUNTY OFA,` ba) -LJ l The foregoing ins e t w s ac owledge� fo m b ans ofysical presence or L] online not io s d 2 i as (1�I ._......._................... for Primetime Sports Group, LLC. - W SERGELNE VICTOR AAN BAPTIST ,., R v w Nota u�6nc State of r londa ( gn qe of i .. .... _ !2 SV j sion # HH 230468 Sl �t 'x Notary Public -State of Florida) d t Comm. Expires Mar 4, 2026 Assn. (Name of Notary Typed, Printed, or Stamped) •Bonded through Natianai Notary Assn. '� Personally, Known OR Produced Identification 4 L�ype of Identification Produced (00519664.4 306-9905631 ) Page 54 of 54 Page 857 of 971 WIM Unfinished Business 2/21/2023 Requested Action by Commission: Proposed Resolution No. R23-020- Approve and authorize the Mayor to sign the ARPA Subrecipient Partnership Agreements with Boynton Beach's nine (9) public schools for a total amount of $848,500. Below is a list of the City's public schools: Freedom Shores Elementary Forest Park Elementary Poinciana STEM Elementary Galaxy E3 Elementary Crosspointe Elementary Rolling Green Elementary Citrus Cove Elementary Congress Middle Boynton Beach Community High Explanation of Request: The COVI D-19 public health emergency has created negative economic impacts across the globe, including disproportionate educational disparities within high -poverty school districts. The American Rescue Plan Act (ARPA) was signed into law on March 11, 2021 and established the US Department of Treasury Coronavirus State and Local Fiscal Recovery Funds (CSLFRF). The CSLFRF Final Rule, which is the governing document for use of ARPA funds, identifies as eligible uses evidence -based services to address the academic, social, emotional, and mental health needs of students. The City of Boynton Beach received a total of $13,647,904 in Fiscal Recovery Funds. On December 6, 2022, the Boynton Beach City Commission approved the use of ARPA funding in the amount of $848,500 to the School District of Palm Beach County on behalf of Boynton Beach's nine (9) public schools. The funding will be administered through direct allocation subrecipient agreements with all nine (9) public schools in the City of Boynton Beach to address and mitigate disproportionate educational disparities compounded by the COVID-19 public health emergency. Each public school in Boynton Beach will receive a total of $100,000. On January 4, 2022 the City Commission approved ARPA funding for the Elementary Schools Partnership Initiative, and Subrecipient Agreements with each individual school were approved by the City Commission on March 1, 2022 and April 5, 2022 respectively. The $51,500 for the Elementary School Partnership Initiative was allocated accordingly: Freedom Shores Elementary - $8,000 Forest Park Elementary - $20,000 Poinciana STEM Elementary - $8,000 Citrus Cove Elementary - $15,500 How will this affect city programs or services? The ARPA funds will address priorities established by the U.S. Treasury to support economic stabilization for households and to address and mitigate disproportionate educational disparities compounded by the COVI D-19 public health emergency. There will not be any direct Page 858 of 971 impact on City services or programs. Fiscal Impact: The schools will be funded solely by ARPA dollars and will not impact the City's General Fund. Alternatives: Do not approve the Subrecipient Agreements. Strategic Plan: Strategic Plan Application: Climate Action Application: Is this a grant? Grant Amount: Attachments: Type Description D IRE)S()�I LA ti 0 111 IRE)SOkAtioin approviing MIIIEs NRPA SLAbrE)Ci�PiE)1['1t AgrE)E)irT1E)1['1tS, with Boyintoin BE�,ach Sch(.'.Do�s DAg ir'E�'E) rTIE)111 t NRPA S Ulbir'EsQ"iDiE)11'it Agir'E�IENrTIENI'lt Citir'LAS COVE) �I:::.IlEslrTIE)intairy DAgir'E�IENrTIENI'lt NRPA S Ulbir'EsQ"iDiE)11'it Agir'E�IENrTIENI'lt Crossp(.'.Dil['ItE) �I:::.IlEslrTIE)intairy DAgir'E�IENrTIENI'lt NRPA S Ulbir'EsQ"iDiE)11'itAgir'E�IENrTIENI'lt 1:::::6"DrE)St Park �I:::.IlEslrTIE)intairy DAgir'E�IENrTIENI'lt NRPA S Ulbir'EsQ"iDiE)11'itAgir'E�IENrTIENI'lt 1:::: ir'EsEsd(.' irn Soir'E)SIl:::. ENrTIE)intairy DAgir'E�IENrTIENI'lt NRPA SUlbir'Es'Ci�PiE)11'it Agir'E�IENrTIENI'lt Poiriciaina EM S TEENrTIENI'Itairy DAgir'E�IENrTIENI'lt NRPA S Ulbir'EsQ"iDiE)11'itAgir'E�IENrTIENI'lt IRCfl1illIg (-';rEsE)1['1 �I:::.IlEslrTIE)intairy D Agir'EsIENrTIENI'lt NRPA SUlbir'Es'Q"i�PiE)int Agir'EsIENrTIENI'lt (.,)aaxy E3 �I:::.IlEslrTIE)intairy D Agir'E�IENrTIENI'lt NRPA S Ulbir'E�Ki�PiE)11'it Agir'E�IENrTIENI'lt Coingir'E)SS MiME) Schoo�� DAgir'E�IENrTIENI'lt NRPA S Ulbir'EsQ"iDiE)11'itAgir'E�IENrTIENI'lt Boyintoin BE�,ach CoirnirTILAII'lity I ligh Schoo�� Page 859 of 971 I RESOLUTION R23-020 2 3 A RESOLUTION OF THE CITY OF BOYNTON BEACH, FLORIDA, APPROVING 4 AND AUTHORIZING THE MAYOR TO SIGN THE ARPA SUBRECIPIENT 5 PARTNERSHIP AGREEMENT WITH BOYNTON BEACH'S NINE (9) PUBLIC 6 SCHOOLS FOR A TOTAL AMOUNT OF $848500.00; AND PROVIDING AN 7 EFFECTIVE DATE. 8 9 WHEREAS, the list of the City's public schools are as follows: Freedom Shores 10 Elementary, Forest Park Elementary, Poinciana STEM Elementary, Galaxy E3 Elementary, 11 Crosspointe Elementary, Rolling Green Elementary, Citrus Cove Elementary, Congress Middle, 12 Boynton Beach Community High; and 13 WHEREAS, COVID-19 public health emergency has created negative economic impacts 14 across the globe, including disproportionate educational disparities within high -poverty school 15 districts; and 16 WHEREAS, The American Rescue Plan Act (ABPA) was signed into law on March 11, 17 2021 and established the US Department of Treasury Coronavirus State and Local Fiscal 18 Recovery Funds (CSLFRF); and 19 WHEREAS, the CSLFRF Final Rule, which is the governing document for use of ARPA 20 funds, identifies as eligible uses evidence -based services to address the academic, social, 21 emotional, and mental health needs of students; and 22 WHEREAS, on December 6, 2022, the Boynton Beach City Commission approved the 23 use of ARPA funding in the amount of $848,500.00 to the School District of Palm Beach County 24 on behalf of Boynton Beach's nine (9) public schools; and 25 WHEREAS, the City Commission deems it to be in the best interest of the citizens and 26 residents to approve and authorize the Mayor to sign the ARPA Subrecipient Partnership 27 Agreement with Boynton Beach's nine (9) public schools for a total amount of $848,500.00. 28 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF 29 BOYNTON BEACH, FLORIDA, THAT: 30 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as 31 being true and correct and are hereby made a specific part of this Resolution upon adoption 32 hereof. S:ACA\RESO\Agreeiuents\ARPA Subrecipient Agreements with Nine Palm Beach County Schools (2022-23) - Reso.docx 1 Page 860 of 971 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 Section 2. The City Commission of the City of Boynton Beach, Florida does hereby approve and authorize the Mayor to sign the ARPA Subrecipient Partnership Agreement with Boynton Beach's nine (9) public schools for a total amount of $848,500.00, a copy of each Agreement is attached hereto as Exhibit "A - I". Section 3. This Resolution will become effective immediately upon passage. PASSED AND ADOPTED this 21 st day of February, 2023. CITY OF BOYNTON BEACH, FLORIDA ATTEST: mayiee ue Jesus, IVIF'A, IVIIVK_ City Clerk (Corporate Seal) YES NO Mayor — Ty Penserga Vice Mayor —Angela Cruz Commissioner —Woodrow L. Hay Commissioner — Thomas Turkin Commissioner —Aimee Kelley VOTE Ty Penserga Mayor APPROVED AS TO FORM: Michael D. Cirullo, Jr. City Attorney S:ACA\RESO\Agreeiuents\ARPA Subrecipient Agreements with Nine Palm Beach County Schools (2022-23) - Reso.docx 2 Page 861 of 971 ARPA SUBRECIPIENT GRANT AGREEMENT between CITY OF BOYNTON BEACH and THE SCHOOL BOARD OF PALM BEACH COUNTY on behalf of CITRUS COVE ELEMENTARY THIS AGREEMENT entered into this day of , 2023 is between the CITY OF BOYNTON BEACH, a Florida municipal corporation, hereinafter referred to as "CITY," and THE SCHOOL BOARD OF PALM BEACH COUNTY on behalf of CITRUS COVE ELEMENTARY hereinafter referred to as "the SUBRECIPIENT," having its principal office at 3366 Forest Hill Blvd. A 323, West Palm Beach, FL 33406 and its Federal Tax Identification Number as 85-8013897253C-1. WITNESSETH: WHEREAS, the CITY has entered into an Agreement with the U.S. Treasury Department for Coronavirus State and Local Fiscal Recovery Funds (CSLFRF) for the execution and implementation the American Rescue Plan Act (ARPA) in the CITY, pursuant to the Interim Final Rule of May 17, 2021, and the Final Rule, effective date April 1, 2022 (as amended); and WHEREAS, the CITY desires to engage the SUBRECIPIENT to implement an element of the Boynton Beach ARPA Master Spending Plan; NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, receipt of which is hereby acknowledged, the parties hereto agree as follows: ARTICLE I DEFINITION AND PURPOSE Definitions 1.1 "ARPA" means American Rescue Plan Act. 1.2 "Treasury" means the U.S. Department of Treasury. 1.3 "OMB" means the Federal Office of Management and Budget. 1.4 "CFR" means the Code of Federal Regulations. 1.5 "2 CFR" refers to the Section of the Code of Federal Regulations pertaining to Grants and Agreements. 1.6 "CSLFRF" means Coronavirus State and Local Fiscal Recovery Funds (also referred to as ARPA funds). 1.7 "31 CFR 35.6" refers to the Section of the Code of Federal Regulations pertaining to the Eligible Uses for Part 35, Subpart A — Coronavirus State and Local Fiscal Recovery Funds. {00553346.1306-9905603} Page 1 of 10 Page 862 of 971 1.8 "Program Income" means gross income received directly generated or earned from the use of ARPA funds. Program Income includes, but is not limited to, interest earned on advances of federal funds or royalties received as a result of patents or copyrights produced under this grant. 1.9 "Property" means any purchase of equipment or real property with CSLFRF funds must be consistent with the Uniform Guidance at 2 CFR Part 200, Subpart D. Equipment and real property acquired under this program must be used for the originally authorized purpose in project budget detail. a. "Real Property" means land, land improvements, structures, fixtures and appurtenances thereto, excluding movable machinery and equipment. b. "Personal Property" means personal property of any kind except real property. c. "Nonexpendable Personal Property" means tangible (i.e., physical) personal property of a non -consumable nature, with a value of $500 or more per item, with a normal expected life of one or more years, not fixed in place, and not an integral part of a structure, facility or another piece of equipment. d. "Expendable Personal Property" means all tangible personal property other than nonexpendable property. 1.10 "Subrecipient" means an entity, including but not limited to non -Federal entities, that receives a subaward from a pass-through entity to carry out part of a Federal award; but does not include an individual that is a beneficiary of such award. A subrecipient may also be a recipient of other Federal awards directly from a Federal awarding agency. 2. Purpose The purpose of this Agreement is to state the covenants and conditions under which the SUBRECIPIENT will implement the Statement of Work set forth in Article II of this agreement. ARTICLE II FUNDING AND BUDGET The maximum amount payable by the CITY under this Agreement will be Eighty -Four Thousand Five Hundred Dollars and 00/100 ($84,500.00). The SUBRECIPIENT shall carry out the activities specified in Attachment A, "Scope of Services." This award is a subaward of CSLFRF funds and the SUBRECIPIENT must comply with any and all requirements for use of CSLFR funds and reporting requirements for expenditures of CSLFRF funds. ARTICLE III FUNDING AND METHOD OF PAYMENT 3.1 The maximum amount payable by the CITY under this Agreement will be Eighty -Four Thousand Five Hundred Dollars and 00/100 ($84,500.00). It is expressly understood and agreed by the Parties that the funds contemplated by this Agreement originated from federal ARPA funds and funding is contingent upon approval and funding by the Boynton Beach City Commission. SUBRECIPIENT agrees to reimburse CITY, in full, all funds remitted to SUBRECIPIENT by CITY that do not comply with any and all requirements for use of ARPA funding. {00553346.1306-9905603} Page 2 of 10 Page 863 of 971 3.2 The CITY will be invoiced by the SUBRECIPIENT for eligible expenses on a reimbursement basis, and will disburse payments once per quarter unless there is a mutual written agreement otherwise (see Attachment "A" Scope of Services). Bills shall be submitted by the SUBRECIPIENT at least two weeks in advance and will be paid provided appropriate documentation and status and beneficiary reports are attached to the invoice. 3.3 Payment by the CITY shall be contingent upon timely receipt of accurate and complete reports and records required by this Agreement. 3.3 Prior to receipt of ARPA funds (through reimbursement), SUBRECIPIENT shall submit the following documentation: a. Quarterly Progress Report. b. All back up original documentation relating to the expenditures for which payment is sought. 3.4 Release of funds is subject to the approval of the ARPA Project Manager, Finance Director, and/or City Manager. ARTICLE IV TERM OF AGREEMENT The term of this Agreement shall be from March 1, 2023 through December 31, 2024. ARTICLE V SUSPENSION AND TERMINATION 5.1 Termination/Suspension of Payments/Agreement for Cause: If through any cause either party shall fail to fulfill in timely and proper manner its obligations under this Agreement, or if either party shall violate any of the covenants, agreements, or stipulations of this Agreement, either party shall thereupon have the right to terminate this Agreement or suspend payments in whole or in part by giving written notice of such termination or suspension of payments and specify the effective date of termination or suspension. If payments are withheld, the CITY shall specify in writing the actions that must be taken by the SUBRECIPIENT as a condition precedent to resumption of payments and shall specify a reasonable date for compliance. Sufficient cause for suspension of payments shall include, but not be limited to: a. ineffective or improper use of ARPA funds, b. failure to comply with the Statement of Work or terms of this Agreement, c. failure to submit reports as required, d. submittal of materially incorrect or incomplete reports, e. failure to comply with any additional conditions that may be imposed by the Treasury, OMB, or CITY. 5.2 Termination for Convenience of City: The CITY may terminate this Agreement without cause at any time by giving at least ten (10) working days' notice in writing to the {00553346.1306-9905603} Page 3 of 10 Page 864 of 971 SUBRECIPIENT. If this Agreement is terminated by the CITY as provided herein, the SUBRECIPIENT will be paid for allowable services performed under Article II of this Agreement until the effective date of the termination. 5.3 Termination for Convenience of the SUBRECIPIENT: At any time during the term of this Agreement, the SUBRECIPIENT may, at its option and for any reason, terminate this Agreement upon ten (10) working days written notice to the CITY. Upon termination, the SUBRECIPIENT shall be paid for services rendered pursuant to this Agreement through and including the date of termination. ARTICLE VI RECORDS AND REPORTS 6.1 The SUBRECIPIENT agrees to maintain and produce all business records related to use of the subaward grant funds and related business expenditures from the time of grant award through December 31, 2030. 6.2 The SUBRECIPIENT agrees to submit upon request other documentation which may later be determined necessary to assure compliance with this Agreement. ARTICLE VII PROGRAM INCOME The SUBRECIPIENT agrees to expend ARPA funds for the purpose outlined in Article I of this Agreement. It is not anticipated that program income shall be generated from this allocation. However, such income, if generated, may be retained by the SUBRECIPIENT and used for costs that are in addition to the approved costs of this agreement, provided that such costs specifically further the objectives of this agreement and are an eligible use under 31 CFR 35.6. Under no circumstances shall the SUBRECIPIENT use program income to pay for charges or expenses that are specifically not allowed pursuant to the terms of this agreement and applicable federal regulations or rules. The use of program income by the SUBRECIPIENT shall comply with the requirements set forth at 31 CFR 35.6 and must be pre -approved by the CITY. ARTICLE VIII PUBLICITY The SUBRECIPIENT shall ensure that all publicity, public relations, advertisements and signs, recognize the CITY and the ARPA Program for the support of all contracted activities. The use of the official CITY logo is permissible, but all signs used to publicize CITY contracted activities must be approved by the CITY prior to being posted. ARTICLE IX GENERAL CONDITIONS 9.1 Federal Office of Management and Budget Requirements: The SUBRECIPIENT shall comply with requirements established by the Federal Office of Management and Budget (OMB) concerning the Dun and Bradstreet Data Universal Numbering System (DUNS) and System for Award Management (SAM) database, as set forth on 2 CFR Part 200, and the Federal Accountability and Transparency Act, as set forth at 2 CFR Part 170. {00553346.1306-9905603} Page 4 of 10 Page 865 of 971 9.2 Federal, State, County and CITY Laws and Regulations: The SUBRECIPIENT shall comply with applicable provisions of applicable federal, state, County, and CITY laws, regulations and rules, including 2 CFR part 200, subpart E, OMB A-21, 2 CFR part 200, subpart F. The SUBRECIPIENT shall comply with Section 504 of the Rehabilitation Act of 1973, as amended, which prohibits discrimination on the basis of handicap; Title VI of the Civil Rights Act of 1964, as amended, which prohibits discrimination on the basis of race, color, or national origin; the Age Discrimination Act of 1975, as amended, which prohibits discrimination on the basis of age; Title VIII of the Civil Rights Act of 1968, as amended, and Executive Order 11063 which prohibits discrimination in housing on the basis of race, color, religion, sex, or national origin; Executive Order 11246, as amended which requires equal employment opportunity; and with the Energy Policy, amended and Conservation Act (Pub.L 94-163) which requires mandatory standards and policies relating to energy efficiency. The SUBRECIPIENT shall report its compliance with Section 504 of the Rehabilitation Act whenever so requested by the CITY. The SUBRECIPIENT shall comply with all applicable requirements of the Americans with Disabilities Act (ADA) of 1990, including, but not limited to, those provisions pertaining to employment, program services, transportation, communications, access to facilities, renovations, and new construction. 9.3 Other Program Requirements: The SUBRECIPIENT shall comply with all federal laws and regulations pertaining to 31 CFR 35.6 Treasury Department Interim Regulations, Treasury Department CSLFRF Frequently Asked Questions, and Treasury Department CSLFRF Compliance and Reporting Guidance. 9.4 Opportunities for Residents and Civil Rights Compliance: The SUBRECIPIENT agrees that no person shall on the grounds of race, color, national origin, religion, or sex be excluded from the benefits of, or be subjected to, discrimination under any activity carried out by the performance of this Agreement. To the greatest feasible extent, lower-income residents of the project areas shall be given opportunities for training and employment; and to the greatest feasible extent, eligible business concerns located in or owned in substantial part by persons residing in the project areas shall be awarded contracts in connection with the project. 9.5 Evaluation and Monitoring: The SUBRECIPIENT agrees that the CITY will carry out periodic monitoring and evaluation activities as determined necessary and that the continuation and/or renewal of this Agreement is dependent upon satisfactory evaluation conclusions. Such evaluations will be based on the terms of this Agreement, comparisons of planned versus actual progress relating to activity scheduling, budgets, audit reports, and output measures. The SUBRECIPIENT agrees to furnish upon request to the CITY and make copies of transcriptions of such records and information as is determined necessary by the CITY. The SUBRECIPIENT shall submit on a schedule set by the CITY and at other times upon request, information and status reports required by the CITY to enable the evaluation of said progress and to allow for completion of reports required of the CITY by the Treasury. The SUBRECIPIENT shall allow the CITY or the Treasury to monitor its agency on site. Such site visits may be scheduled or unscheduled as determined by the CITY or the Treasury. Ongoing monitoring of the SUBRECIPIENT will be done through quarterly reporting from the SUBRECIPIENT to the City. Reporting requirements will be based upon the {00553346.1306-9905603} Page 5 of 10 Page 866 of 971 SUBRECIPIENT'S risk assessment and in compliance with the CSLFRF Compliance and Reporting Guidance and Uniform Guidance 2 CFR Part 200. Monitoring will include identification of deficiencies in meeting stated requirements in Article II of this agreement and follow-up to ensure appropriate remediation. 9.6 Audits: Any non-federal agency and/or non-profit organization that expends $750,000 or more annually in federal awards shall have a single or program specific audit conducted accordance with 2 CFR 200, Subpart F. Non-federal agencies and/or nonprofit organizations that expend less than $750,000 annually in federal awards shall be exempt from an audit conducted in accordance with 2 CFR 200, Subpart F, although their records must be available for review. These agencies are required by the CITY to submit "reduced scope" audits (e.g., financial audits, performance audits). Each audit shall cover a time period of not more than 12 months and an audit shall be submitted covering each assisted period until all the assistance received from this agreement has been reported on. A copy of the audit report must be received by the CITY no later than six months following each audit period. The SUBRECIPIENT shall maintain all records in accordance with generally accepted accounting principles, procedures, and practices which shall sufficiently and properly reflect all revenues and expenditures of funds provided directly or indirectly by the CITY pursuant to the terms of this agreement. 9.7 Uniform Administrative Requirements: The SUBRECIPIENT agrees to maintain books, records and documents in accordance with accounting procedures and practices which sufficiently and properly reflect all expenditures of funds provided by the CITY under this Agreement. The SUBRECIPIENT is required to comply with the following uniform administrative requirements: a. Specific provisions of the uniform administrative requirements of 2 CFR 200, Subpart E — Cost Principles b. OMB 2021 Compliance Supplement Addendum Final V2 (Audit Requirements). c. Applicable provisions of 31 CFR 35.6. 9.8 Lobbying Prohibition: The SUBRECIPIENT shall certify that no federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal Agreement, the making of any federal grant, the making of any federal loan, the entering into of any cooperative Agreement, and the extension, continuation, renewal, amendment, or modification of any federal Agreement, grant, loan, or cooperative Agreement. The SUBRECIPIENT shall disclose to the CITY if any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this federal Agreement. 9.9 Insurance: The SUBRECIPIENT shall furnish to the CITY, c/o the ARPA Project Manager, certificate(s) of current insurance coverage. {00553346.1306-9905603} Page 6 of 10 Page 867 of 971 9.10 Property: All real property purchased in whole or in part with funds from this agreement with the CITY, or transferred to the SUBRECIPIENT after being purchased in whole or in part with funds from the CITY, shall be listed in the property records of the SUBRECIPIENT and shall include a legal description, size, date of acquisition, value at time of acquisition, present market value, present condition, address or location, owner's name if different from the SUBRECIPIENT, information on the transfer or disposition of the property, and map. The property records shall describe the programmatic purpose for which the property was acquired and identify the ARPA national objective that will be met. If the property was improved, the records shall describe the programmatic purpose for which the improvements were made and identify the ARPA national objective that will be met. All nonexpendable personal property purchased in whole or in part with funds from this agreement with the CITY shall be listed in the property records of the SUBRECIPIENT and shall include a description of the property, location, model number, manufacturer's serial number, date of acquisition, funding source, unit cost at the time of acquisition, present market value, property inventory number, information on its condition, and information on transfer, replacement, or disposition of the property. The SUBRECIPIENT shall obtain prior written approval from the CITY for the disposition of real property, expendable personal property, and nonexpendable personal property purchased in whole or in part with funds given to the SUBRECIPIENT pursuant to the terms of this agreement. The SUBRECIPIENT shall dispose of all such property in accordance with instructions from the CITY. Those instructions may require the return of all such property to the CITY. 9.12 Reversion of Assets: The SUBRECIPIENT shall return to the CITY, upon expiration or termination of this Agreement, all the assets owned or held as a result of this Agreement, including, but not limited to any funds on hand, any accounts receivable attributable to these funds, mortgages, notes, and other collateral and any overpayments due to unearned funds or costs disallowed pursuant to the terms of this Agreement that were disbursed to the SUBRECIPIENT by the CITY. The SUBRECIPIENT shall within 30 days of expiration or termination of this Agreement execute any and all documents as required by the CITY to effectuate the reversion of assets. Any funds not earned, as described and provided for in 2 CFR 200, Subpart E, by the SUBRECIPIENT prior to the expiration or termination of this Agreement shall be retained by the CITY. 9.13 Conflicts with Applicable Laws: If any provision of this agreement conflicts with any applicable law or regulation, only the conflicting provision shall be deemed by the parties hereto to be modified to be consistent with the law or regulation or to be deleted if modification is impossible. However, the obligations under this agreement, as modified, shall continue and all other provisions of this agreement shall remain in full force and effect. 9.14 Renegotiation or Modification: Modifications of provisions of the agreement shall be valid only when in writing and signed by duly authorized representatives of each party. The parties agree to renegotiate this agreement if the CITY determines, in its sole and absolute discretion, that federal, State and/or CITY revisions of any applicable laws or regulations, or increases or decreases in budget allocations make changes in this agreement necessary. {00553346.1306-9905603} Page 7 of 10 Page 868 of 971 9.15 Right to Waive: The CITY may, for good and sufficient cause, as determined by the CITY in its sole and absolute discretion, waive provisions in this agreement or seek to obtain such waiver from the appropriate authority. Waiver requests from the SUBRECIPIENT shall be in writing. Any waiver shall not be construed to be a modification of this agreement. 9.16 Disputes: In the event an unresolved dispute exists between the SUBRECIPIENT and the CITY, the CITY shall refer the questions, including the views of all interested parties and the recommendation of the CITY, to the City Manager for determination. The City Manager, or an authorized representative, will issue a determination within 30 calendar days of receipt and so advise the CITY and the SUBRECIPIENT, or in the event additional time is necessary, the CITY will notify the SUBRECIPIENT within the 30 -day period that additional time is necessary. The SUBRECIPIENT agrees that the City Manager's determination shall be final and binding on all parties. 9.17 Indemnification: SUBRECIPIENT acknowledges the waiver of sovereign Immunity for liability in tort contained in Florida Statutes Section 768.28, the State of Florida's partial waiver of sovereign immunity, and acknowledges that such statute permits actions at law to recover damages in tort for money damages up to the limits set forth in such statute for death, personal injury or damage to property caused by the negligent or wrongful acts or omissions of an employee acting within the scope of the employee's office or employment. To the extent and limits of §768.28, Florida Statutes, SUBRECIPIENT will indemnify and be responsible for and hold CITY harmless from and against any and all claims, damages, costs, and expenses caused by its negligent or intentional acts, any copyright violations or arising out of the breach of this contract. Notwithstanding the forgoing, this provision is not intended to serve or constitute (i) an agreement by SUBRECIPIENT to indemnify CITY for Its own negligence; (ii) a waiver of sovereign immunity by SUBRECIPIENT; (iii) a waiver of any defense SUBRECIPIENT may have under such statute; (iv) the consent of SUBRECIPIENT or its officers, employees to be sued; or (v) a waiver of sovereign immunity of the State of Florida beyond the waiver provided in Section 768.28 of the Florida Statutes. If SUBRECIPIENT uses a subcontractor, SUBRECIPIENT shall, by written contract, require its subcontractors to agree to the requirements and obligations of this Section 9.17. 9.18 Public Records: SUBRECIPIENT shall comply with all public records laws in accordance with Chapter 119, Fla. Stat. In accordance with state law, SUBRECIPIENT agrees to: a) Keep and maintain all records that ordinarily and necessarily would be required by the CITY. b) Provide the public with access to public records on the same terms and conditions that the CITY would provide for the records and at a cost that does not exceed the costs provided in Chapter 119, Fla. Stat. or as otherwise provided by law. C) Ensure that public records that are exempt or confidential and exempt from public records disclosure are not disclosed except as authorized by law. d) Meet all requirements for retaining public records and transfer, at no cost, to the CITY all records in possession of the SUBRECIPIENT at the termination of the contract and destroy any public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored {00553346.1 306-9905603} Page 8 of 10 Page 869 of 971 electronically must be provided to the CITY in a format that is compatible with the information technology systems of the CITY. All records shall be transferred to the CITY prior to final payment being made to the SUBRECIPIENT. e) If SUBRECIPIENT does not comply with this section, the CITY shall enforce the contract provisions in accordance with the contract and may unilaterally cancel this contract in accordance with state law. 9.19 Inspector General: SUBRECIPIENT is aware that the Inspector General of Palm Beach County has the authority to investigate and audit matters relating to the negotiation and performance of this Agreement, and may demand and obtain records and testimony from SUBRECIPIENT. SUBRECIPIENT understands and agrees that in addition to all other remedies and consequences provided by law, the failure of SUBRECIPIENT to fully cooperate with the Inspector General when requested may be deemed by the CITY to be a material breach of this Agreement. IN WITNESS OF THE FOREGOING, the parties have set their hands and seals on this day of 2023. WITNESSES: THE SCHOOL BOARD OF PALM BEACH COUNTY on behalf of CITRUS COVE ELEMENTARY Print Title Print STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this _ day of , 20237 by Personally Known — OR Produced Identification _Type of Identification Produced Seal NOTARY PUBLIC Signature Print {00553346.1 306-9905603} Page 9 of 10 Page 870 of 971 ATTEST: City Clerk CITY OF BOYNTON BEACH, FLORIDA Mayor Approved as to form: City Attorney {00553346.1306-9905603} Page 10 of 10 Page 871 of 971 ARPA SUBRECIPIENT GRANT AGREEMENT between CITY OF BOYNTON BEACH and THE SCHOOL BOARD OF PALM BEACH COUNTY on behalf of CROSSPOINTE ELEMENTARY THIS AGREEMENT entered into this day of , 2023 is between the CITY OF BOYNTON BEACH, a Florida municipal corporation, hereinafter referred to as "CITY," and THE SCHOOL BOARD OF PALM BEACH COUNTY on behalf of CROSSPOINTE ELEMENTARY hereinafter referred to as "the SUBRECIPIENT," having its principal office at 3366 Forest Hill Blvd. A 323, West Palm Beach, FL 33406 and its Federal Tax Identification Number as 85-8013897253C-1. WITNESSETH: WHEREAS, the CITY has entered into an Agreement with the U.S. Treasury Department for Coronavirus State and Local Fiscal Recovery Funds (CSLFRF) for the execution and implementation the American Rescue Plan Act (ARPA) in the CITY, pursuant to the Interim Final Rule of May 17, 2021, and the Final Rule, effective date April 1, 2022 (as amended); and WHEREAS, the CITY desires to engage the SUBRECIPIENT to implement an element of the Boynton Beach ARPA Master Spending Plan; NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, receipt of which is hereby acknowledged, the parties hereto agree as follows: ARTICLE I DEFINITION AND PURPOSE Definitions 1.1 "ARPA" means American Rescue Plan Act. 1.2 "Treasury" means the U.S. Department of Treasury. 1.3 "OMB" means the Federal Office of Management and Budget. 1.4 "CFR" means the Code of Federal Regulations. 1.5 "2 CFR" refers to the Section of the Code of Federal Regulations pertaining to Grants and Agreements. 1.6 "CSLFRF" means Coronavirus State and Local Fiscal Recovery Funds (also referred to as ARPA funds). 1.7 "31 CFR 35.6" refers to the Section of the Code of Federal Regulations pertaining to the Eligible Uses for Part 35, Subpart A — Coronavirus State and Local Fiscal Recovery Funds. {00553340.1306-9905603} Page 1 of 10 Page 872 of 971 1.8 "Program Income" means gross income received directly generated or earned from the use of ARPA funds. Program Income includes, but is not limited to, interest earned on advances of federal funds or royalties received as a result of patents or copyrights produced under this grant. 1.9 "Property" means any purchase of equipment or real property with CSLFRF funds must be consistent with the Uniform Guidance at 2 CFR Part 200, Subpart D. Equipment and real property acquired under this program must be used for the originally authorized purpose in project budget detail. a. "Real Property" means land, land improvements, structures, fixtures and appurtenances thereto, excluding movable machinery and equipment. b. "Personal Property" means personal property of any kind except real property. c. "Nonexpendable Personal Property" means tangible (i.e., physical) personal property of a non -consumable nature, with a value of $500 or more per item, with a normal expected life of one or more years, not fixed in place, and not an integral part of a structure, facility or another piece of equipment. d. "Expendable Personal Property" means all tangible personal property other than nonexpendable property. 1.10 "Subrecipient" means an entity, including but not limited to non -Federal entities, that receives a subaward from a pass-through entity to carry out part of a Federal award; but does not include an individual that is a beneficiary of such award. A subrecipient may also be a recipient of other Federal awards directly from a Federal awarding agency. 2. Purpose The purpose of this Agreement is to state the covenants and conditions under which the SUBRECIPIENT will implement the Statement of Work set forth in Article II of this agreement. ARTICLE II FUNDING AND BUDGET The maximum amount payable by the CITY under this Agreement will be One Hundred Thousand Dollars and 00/100 ($100,000.00). The SUBRECIPIENT shall carry out the activities specified in Attachment A, "Scope of Services." This award is a subaward of CSLFRF funds and the SUBRECIPIENT must comply with any and all requirements for use of CSLFR funds and reporting requirements for expenditures of CSLFRF funds. ARTICLE III FUNDING AND METHOD OF PAYMENT 3.1 The maximum amount payable by the CITY under this Agreement will be One Hundred Thousand Dollars and 00/100 ($100,000.00). It is expressly understood and agreed by the Parties that the funds contemplated by this Agreement originated from federal ARPA funds and funding is contingent upon approval and funding by the Boynton Beach City Commission. SUBRECIPIENT agrees to reimburse CITY, in full, all funds remitted to SUBRECIPIENT by CITY that do not comply with any and all requirements for use of ARPA funding. {00553340.1306-9905603} Page 2 of 10 Page 873 of 971 3.2 The CITY will be invoiced by the SUBRECIPIENT for eligible expenses on a reimbursement basis, and will disburse payments once per quarter unless there is a mutual written agreement otherwise (see Attachment "A" Scope of Services). Bills shall be submitted by the SUBRECIPIENT at least two weeks in advance and will be paid provided appropriate documentation and status and beneficiary reports are attached to the invoice. 3.3 Payment by the CITY shall be contingent upon timely receipt of accurate and complete reports and records required by this Agreement. 3.3 Prior to receipt of ARPA funds (through reimbursement), SUBRECIPIENT shall submit the following documentation: a. Quarterly Progress Report. b. All back up original documentation relating to the expenditures for which payment is sought. 3.4 Release of funds is subject to the approval of the ARPA Project Manager, Finance Director, and/or City Manager. ARTICLE IV TERM OF AGREEMENT The term of this Agreement shall be from March 1, 2023 through December 31, 2024. ARTICLE V SUSPENSION AND TERMINATION 5.1 Termination/Suspension of Payments/Agreement for Cause: If through any cause either party shall fail to fulfill in timely and proper manner its obligations under this Agreement, or if either party shall violate any of the covenants, agreements, or stipulations of this Agreement, either party shall thereupon have the right to terminate this Agreement or suspend payments in whole or in part by giving written notice of such termination or suspension of payments and specify the effective date of termination or suspension. If payments are withheld, the CITY shall specify in writing the actions that must be taken by the SUBRECIPIENT as a condition precedent to resumption of payments and shall specify a reasonable date for compliance. Sufficient cause for suspension of payments shall include, but not be limited to: a. ineffective or improper use of ARPA funds, b. failure to comply with the Statement of Work or terms of this Agreement, c. failure to submit reports as required, d. submittal of materially incorrect or incomplete reports, e. failure to comply with any additional conditions that may be imposed by the Treasury, OMB, or CITY. 5.2 Termination for Convenience of City: The CITY may terminate this Agreement without cause at any time by giving at least ten (10) working days' notice in writing to the {00553340.1306-9905603} Page 3 of 10 Page 874 of 971 SUBRECIPIENT. If this Agreement is terminated by the CITY as provided herein, the SUBRECIPIENT will be paid for allowable services performed under Article II of this Agreement until the effective date of the termination. 5.3 Termination for Convenience of the SUBRECIPIENT: At any time during the term of this Agreement, the SUBRECIPIENT may, at its option and for any reason, terminate this Agreement upon ten (10) working days written notice to the CITY. Upon termination, the SUBRECIPIENT shall be paid for services rendered pursuant to this Agreement through and including the date of termination. ARTICLE VI RECORDS AND REPORTS 6.1 The SUBRECIPIENT agrees to maintain and produce all business records related to use of the subaward grant funds and related business expenditures from the time of grant award through December 31, 2030. 6.2 The SUBRECIPIENT agrees to submit upon request other documentation which may later be determined necessary to assure compliance with this Agreement. ARTICLE VII PROGRAM INCOME The SUBRECIPIENT agrees to expend ARPA funds for the purpose outlined in Article I of this Agreement. It is not anticipated that program income shall be generated from this allocation. However, such income, if generated, may be retained by the SUBRECIPIENT and used for costs that are in addition to the approved costs of this agreement, provided that such costs specifically further the objectives of this agreement and are an eligible use under 31 CFR 35.6. Under no circumstances shall the SUBRECIPIENT use program income to pay for charges or expenses that are specifically not allowed pursuant to the terms of this agreement and applicable federal regulations or rules. The use of program income by the SUBRECIPIENT shall comply with the requirements set forth at 31 CFR 35.6 and must be pre -approved by the CITY. ARTICLE VIII PUBLICITY The SUBRECIPIENT shall ensure that all publicity, public relations, advertisements and signs, recognize the CITY and the ARPA Program for the support of all contracted activities. The use of the official CITY logo is permissible, but all signs used to publicize CITY contracted activities must be approved by the CITY prior to being posted. ARTICLE IX GENERAL CONDITIONS 9.1 Federal Office of Management and Budget Requirements: The SUBRECIPIENT shall comply with requirements established by the Federal Office of Management and Budget (OMB) concerning the Dun and Bradstreet Data Universal Numbering System (DUNS) and System for Award Management (SAM) database, as set forth on 2 CFR Part 200, and the Federal Accountability and Transparency Act, as set forth at 2 CFR Part 170. {00553340.1306-9905603} Page 4 of 10 Page 875 of 971 9.2 Federal, State, County and CITY Laws and Regulations: The SUBRECIPIENT shall comply with applicable provisions of applicable federal, state, County, and CITY laws, regulations and rules, including 2 CFR part 200, subpart E, OMB A-21, 2 CFR part 200, subpart F. The SUBRECIPIENT shall comply with Section 504 of the Rehabilitation Act of 1973, as amended, which prohibits discrimination on the basis of handicap; Title VI of the Civil Rights Act of 1964, as amended, which prohibits discrimination on the basis of race, color, or national origin; the Age Discrimination Act of 1975, as amended, which prohibits discrimination on the basis of age; Title VIII of the Civil Rights Act of 1968, as amended, and Executive Order 11063 which prohibits discrimination in housing on the basis of race, color, religion, sex, or national origin; Executive Order 11246, as amended which requires equal employment opportunity; and with the Energy Policy, amended and Conservation Act (Pub.L 94-163) which requires mandatory standards and policies relating to energy efficiency. The SUBRECIPIENT shall report its compliance with Section 504 of the Rehabilitation Act whenever so requested by the CITY. The SUBRECIPIENT shall comply with all applicable requirements of the Americans with Disabilities Act (ADA) of 1990, including, but not limited to, those provisions pertaining to employment, program services, transportation, communications, access to facilities, renovations, and new construction. 9.3 Other Program Requirements: The SUBRECIPIENT shall comply with all federal laws and regulations pertaining to 31 CFR 35.6 Treasury Department Interim Regulations, Treasury Department CSLFRF Frequently Asked Questions, and Treasury Department CSLFRF Compliance and Reporting Guidance. 9.4 Opportunities for Residents and Civil Rights Compliance: The SUBRECIPIENT agrees that no person shall on the grounds of race, color, national origin, religion, or sex be excluded from the benefits of, or be subjected to, discrimination under any activity carried out by the performance of this Agreement. To the greatest feasible extent, lower-income residents of the project areas shall be given opportunities for training and employment; and to the greatest feasible extent, eligible business concerns located in or owned in substantial part by persons residing in the project areas shall be awarded contracts in connection with the project. 9.5 Evaluation and Monitoring: The SUBRECIPIENT agrees that the CITY will carry out periodic monitoring and evaluation activities as determined necessary and that the continuation and/or renewal of this Agreement is dependent upon satisfactory evaluation conclusions. Such evaluations will be based on the terms of this Agreement, comparisons of planned versus actual progress relating to activity scheduling, budgets, audit reports, and output measures. The SUBRECIPIENT agrees to furnish upon request to the CITY and make copies of transcriptions of such records and information as is determined necessary by the CITY. The SUBRECIPIENT shall submit on a schedule set by the CITY and at other times upon request, information and status reports required by the CITY to enable the evaluation of said progress and to allow for completion of reports required of the CITY by the Treasury. The SUBRECIPIENT shall allow the CITY or the Treasury to monitor its agency on site. Such site visits may be scheduled or unscheduled as determined by the CITY or the Treasury. Ongoing monitoring of the SUBRECIPIENT will be done through quarterly reporting from the SUBRECIPIENT to the City. Reporting requirements will be based upon the {00553340.1306-9905603} Page 5 of 10 Page 876 of 971 SUBRECIPIENT'S risk assessment and in compliance with the CSLFRF Compliance and Reporting Guidance and Uniform Guidance 2 CFR Part 200. Monitoring will include identification of deficiencies in meeting stated requirements in Article II of this agreement and follow-up to ensure appropriate remediation. 9.6 Audits: Any non-federal agency and/or non-profit organization that expends $750,000 or more annually in federal awards shall have a single or program specific audit conducted accordance with 2 CFR 200, Subpart F. Non-federal agencies and/or nonprofit organizations that expend less than $750,000 annually in federal awards shall be exempt from an audit conducted in accordance with 2 CFR 200, Subpart F, although their records must be available for review. These agencies are required by the CITY to submit "reduced scope" audits (e.g., financial audits, performance audits). Each audit shall cover a time period of not more than 12 months and an audit shall be submitted covering each assisted period until all the assistance received from this agreement has been reported on. A copy of the audit report must be received by the CITY no later than six months following each audit period. The SUBRECIPIENT shall maintain all records in accordance with generally accepted accounting principles, procedures, and practices which shall sufficiently and properly reflect all revenues and expenditures of funds provided directly or indirectly by the CITY pursuant to the terms of this agreement. 9.7 Uniform Administrative Requirements: The SUBRECIPIENT agrees to maintain books, records and documents in accordance with accounting procedures and practices which sufficiently and properly reflect all expenditures of funds provided by the CITY under this Agreement. The SUBRECIPIENT is required to comply with the following uniform administrative requirements: a. Specific provisions of the uniform administrative requirements of 2 CFR 200, Subpart E — Cost Principles b. OMB 2021 Compliance Supplement Addendum Final V2 (Audit Requirements). c. Applicable provisions of 31 CFR 35.6. 9.8 Lobbying Prohibition: The SUBRECIPIENT shall certify that no federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal Agreement, the making of any federal grant, the making of any federal loan, the entering into of any cooperative Agreement, and the extension, continuation, renewal, amendment, or modification of any federal Agreement, grant, loan, or cooperative Agreement. The SUBRECIPIENT shall disclose to the CITY if any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this federal Agreement. 9.9 Insurance: The SUBRECIPIENT shall furnish to the CITY, c/o the ARPA Project Manager, certificate(s) of current insurance coverage. {00553340.1306-9905603} Page 6 of 10 Page 877 of 971 9.10 Property: All real property purchased in whole or in part with funds from this agreement with the CITY, or transferred to the SUBRECIPIENT after being purchased in whole or in part with funds from the CITY, shall be listed in the property records of the SUBRECIPIENT and shall include a legal description, size, date of acquisition, value at time of acquisition, present market value, present condition, address or location, owner's name if different from the SUBRECIPIENT, information on the transfer or disposition of the property, and map. The property records shall describe the programmatic purpose for which the property was acquired and identify the ARPA national objective that will be met. If the property was improved, the records shall describe the programmatic purpose for which the improvements were made and identify the ARPA national objective that will be met. All nonexpendable personal property purchased in whole or in part with funds from this agreement with the CITY shall be listed in the property records of the SUBRECIPIENT and shall include a description of the property, location, model number, manufacturer's serial number, date of acquisition, funding source, unit cost at the time of acquisition, present market value, property inventory number, information on its condition, and information on transfer, replacement, or disposition of the property. The SUBRECIPIENT shall obtain prior written approval from the CITY for the disposition of real property, expendable personal property, and nonexpendable personal property purchased in whole or in part with funds given to the SUBRECIPIENT pursuant to the terms of this agreement. The SUBRECIPIENT shall dispose of all such property in accordance with instructions from the CITY. Those instructions may require the return of all such property to the CITY. 9.12 Reversion of Assets: The SUBRECIPIENT shall return to the CITY, upon expiration or termination of this Agreement, all the assets owned or held as a result of this Agreement, including, but not limited to any funds on hand, any accounts receivable attributable to these funds, mortgages, notes, and other collateral and any overpayments due to unearned funds or costs disallowed pursuant to the terms of this Agreement that were disbursed to the SUBRECIPIENT by the CITY. The SUBRECIPIENT shall within 30 days of expiration or termination of this Agreement execute any and all documents as required by the CITY to effectuate the reversion of assets. Any funds not earned, as described and provided for in 2 CFR 200, Subpart E, by the SUBRECIPIENT prior to the expiration or termination of this Agreement shall be retained by the CITY. 9.13 Conflicts with Applicable Laws: If any provision of this agreement conflicts with any applicable law or regulation, only the conflicting provision shall be deemed by the parties hereto to be modified to be consistent with the law or regulation or to be deleted if modification is impossible. However, the obligations under this agreement, as modified, shall continue and all other provisions of this agreement shall remain in full force and effect. 9.14 Renegotiation or Modification: Modifications of provisions of the agreement shall be valid only when in writing and signed by duly authorized representatives of each party. The parties agree to renegotiate this agreement if the CITY determines, in its sole and absolute discretion, that federal, State and/or CITY revisions of any applicable laws or regulations, or increases or decreases in budget allocations make changes in this agreement necessary. {00553340.1306-9905603} Page 7 of 10 Page 878 of 971 9.15 Right to Waive: The CITY may, for good and sufficient cause, as determined by the CITY in its sole and absolute discretion, waive provisions in this agreement or seek to obtain such waiver from the appropriate authority. Waiver requests from the SUBRECIPIENT shall be in writing. Any waiver shall not be construed to be a modification of this agreement. 9.16 Disputes: In the event an unresolved dispute exists between the SUBRECIPIENT and the CITY, the CITY shall refer the questions, including the views of all interested parties and the recommendation of the CITY, to the City Manager for determination. The City Manager, or an authorized representative, will issue a determination within 30 calendar days of receipt and so advise the CITY and the SUBRECIPIENT, or in the event additional time is necessary, the CITY will notify the SUBRECIPIENT within the 30 -day period that additional time is necessary. The SUBRECIPIENT agrees that the City Manager's determination shall be final and binding on all parties. 9.17 Indemnification: SUBRECIPIENT acknowledges the waiver of sovereign Immunity for liability in tort contained in Florida Statutes Section 768.28, the State of Florida's partial waiver of sovereign immunity, and acknowledges that such statute permits actions at law to recover damages in tort for money damages up to the limits set forth in such statute for death, personal injury or damage to property caused by the negligent or wrongful acts or omissions of an employee acting within the scope of the employee's office or employment. To the extent and limits of §768.28, Florida Statutes, SUBRECIPIENT will indemnify and be responsible for and hold CITY harmless from and against any and all claims, damages, costs, and expenses caused by its negligent or intentional acts, any copyright violations or arising out of the breach of this contract. Notwithstanding the forgoing, this provision is not intended to serve or constitute (i) an agreement by SUBRECIPIENT to indemnify CITY for Its own negligence; (ii) a waiver of sovereign immunity by SUBRECIPIENT; (iii) a waiver of any defense SUBRECIPIENT may have under such statute; (iv) the consent of SUBRECIPIENT or its officers, employees to be sued; or (v) a waiver of sovereign immunity of the State of Florida beyond the waiver provided in Section 768.28 of the Florida Statutes. If SUBRECIPIENT uses a subcontractor, SUBRECIPIENT shall, by written contract, require its subcontractors to agree to the requirements and obligations of this Section 9.17. 9.18 Public Records: SUBRECIPIENT shall comply with all public records laws in accordance with Chapter 119, Fla. Stat. In accordance with state law, SUBRECIPIENT agrees to: a) Keep and maintain all records that ordinarily and necessarily would be required by the CITY. b) Provide the public with access to public records on the same terms and conditions that the CITY would provide for the records and at a cost that does not exceed the costs provided in Chapter 119, Fla. Stat. or as otherwise provided by law. C) Ensure that public records that are exempt or confidential and exempt from public records disclosure are not disclosed except as authorized by law. d) Meet all requirements for retaining public records and transfer, at no cost, to the CITY all records in possession of the SUBRECIPIENT at the termination of the contract and destroy any public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored {00553340.1 306-9905603} Page 8 of 10 Page 879 of 971 electronically must be provided to the CITY in a format that is compatible with the information technology systems of the CITY. All records shall be transferred to the CITY prior to final payment being made to the SUBRECIPIENT. e) If SUBRECIPIENT does not comply with this section, the CITY shall enforce the contract provisions in accordance with the contract and may unilaterally cancel this contract in accordance with state law. 9.19 Inspector General: SUBRECIPIENT is aware that the Inspector General of Palm Beach County has the authority to investigate and audit matters relating to the negotiation and performance of this Agreement, and may demand and obtain records and testimony from SUBRECIPIENT. SUBRECIPIENT understands and agrees that in addition to all other remedies and consequences provided by law, the failure of SUBRECIPIENT to fully cooperate with the Inspector General when requested may be deemed by the CITY to be a material breach of this Agreement. IN WITNESS OF THE FOREGOING, the parties have set their hands and seals on this day of 2023. WITNESSES: THE SCHOOL BOARD OF PALM BEACH COUNTY on behalf of CROSSPOINTE ELEMENTARY Print Title Print STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this _ day of , 20237 by Personally Known — OR Produced Identification _Type of Identification Produced Seal NOTARY PUBLIC Signature Print {00553340.1 306-9905603} Page 9 of 10 Page 880 of 971 ATTEST: City Clerk CITY OF BOYNTON BEACH, FLORIDA Mayor Approved as to form: City Attorney {00553340.1306-9905603} Page 10 of 10 Page 881 of 971 ARPA SUBRECIPIENT GRANT AGREEMENT between CITY OF BOYNTON BEACH and THE SCHOOL BOARD OF PALM BEACH COUNTY on behalf of FOREST PARK ELEMENTARY THIS AGREEMENT entered into this day of , 2023 is between the CITY OF BOYNTON BEACH, a Florida municipal corporation, hereinafter referred to as "CITY," and THE SCHOOL BOARD OF PALM BEACH COUNTY on behalf of FOREST PARK ELEMENTARY hereinafter referred to as "the SUBRECIPIENT," having its principal office at 3366 Forest Hill Blvd. A 323, West Palm Beach, FL 33406 and its Federal Tax Identification Number as 85-8013897253C-1. WITNESSETH: WHEREAS, the CITY has entered into an Agreement with the U.S. Treasury Department for Coronavirus State and Local Fiscal Recovery Funds (CSLFRF) for the execution and implementation the American Rescue Plan Act (ARPA) in the CITY, pursuant to the Interim Final Rule of May 17, 2021, and the Final Rule, effective date April 1, 2022 (as amended); and WHEREAS, the CITY desires to engage the SUBRECIPIENT to implement an element of the Boynton Beach ARPA Master Spending Plan; NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, receipt of which is hereby acknowledged, the parties hereto agree as follows: ARTICLE I DEFINITION AND PURPOSE Definitions 1.1 "ARPA" means American Rescue Plan Act. 1.2 "Treasury" means the U.S. Department of Treasury. 1.3 "OMB" means the Federal Office of Management and Budget. 1.4 "CFR" means the Code of Federal Regulations. 1.5 "2 CFR" refers to the Section of the Code of Federal Regulations pertaining to Grants and Agreements. 1.6 "CSLFRF" means Coronavirus State and Local Fiscal Recovery Funds (also referred to as ARPA funds). 1.7 "31 CFR 35.6" refers to the Section of the Code of Federal Regulations pertaining to the Eligible Uses for Part 35, Subpart A — Coronavirus State and Local Fiscal Recovery Funds. {00553335.1306-9905603} Page 1 of 10 Page 882 of 971 1.8 "Program Income" means gross income received directly generated or earned from the use of ARPA funds. Program Income includes, but is not limited to, interest earned on advances of federal funds or royalties received as a result of patents or copyrights produced under this grant. 1.9 "Property" means any purchase of equipment or real property with CSLFRF funds must be consistent with the Uniform Guidance at 2 CFR Part 200, Subpart D. Equipment and real property acquired under this program must be used for the originally authorized purpose in project budget detail. a. "Real Property" means land, land improvements, structures, fixtures and appurtenances thereto, excluding movable machinery and equipment. b. "Personal Property" means personal property of any kind except real property. c. "Nonexpendable Personal Property" means tangible (i.e., physical) personal property of a non -consumable nature, with a value of $500 or more per item, with a normal expected life of one or more years, not fixed in place, and not an integral part of a structure, facility or another piece of equipment. d. "Expendable Personal Property" means all tangible personal property other than nonexpendable property. 1.10 "Subrecipient" means an entity, including but not limited to non -Federal entities, that receives a subaward from a pass-through entity to carry out part of a Federal award; but does not include an individual that is a beneficiary of such award. A subrecipient may also be a recipient of other Federal awards directly from a Federal awarding agency. 2. Purpose The purpose of this Agreement is to state the covenants and conditions under which the SUBRECIPIENT will implement the Statement of Work set forth in Article II of this agreement. ARTICLE II FUNDING AND BUDGET The maximum amount payable by the CITY under this Agreement will be Eighty Thousand Dollars and 00/100 ($80,000.00). The SUBRECIPIENT shall carry out the activities specified in Attachment A, "Scope of Services." This award is a subaward of CSLFRF funds and the SUBRECIPIENT must comply with any and all requirements for use of CSLFR funds and reporting requirements for expenditures of CSLFRF funds. ARTICLE III FUNDING AND METHOD OF PAYMENT 3.1 The maximum amount payable by the CITY under this Agreement will be Eighty Thousand Dollars and 00/100 ($80,000.00). It is expressly understood and agreed by the Parties that the funds contemplated by this Agreement originated from federal ARPA funds and funding is contingent upon approval and funding by the Boynton Beach City Commission. SUBRECIPIENT agrees to reimburse CITY, in full, all funds remitted to SUBRECIPIENT by CITY that do not comply with any and all requirements for use of ARPA funding. {00553335.1306-9905603} Page 2 of 10 Page 883 of 971 3.2 The CITY will be invoiced by the SUBRECIPIENT for eligible expenses on a reimbursement basis, and will disburse payments once per quarter unless there is a mutual written agreement otherwise (see Attachment "A" Scope of Services). Bills shall be submitted by the SUBRECIPIENT at least two weeks in advance and will be paid provided appropriate documentation and status and beneficiary reports are attached to the invoice. 3.3 Payment by the CITY shall be contingent upon timely receipt of accurate and complete reports and records required by this Agreement. 3.3 Prior to receipt of ARPA funds (through reimbursement), SUBRECIPIENT shall submit the following documentation: a. Quarterly Progress Report. b. All back up original documentation relating to the expenditures for which payment is sought. 3.4 Release of funds is subject to the approval of the ARPA Project Manager, Finance Director, and/or City Manager. ARTICLE IV TERM OF AGREEMENT The term of this Agreement shall be from March 1, 2023 through December 31, 2024. ARTICLE V SUSPENSION AND TERMINATION 5.1 Termination/Suspension of Payments/Agreement for Cause: If through any cause either party shall fail to fulfill in timely and proper manner its obligations under this Agreement, or if either party shall violate any of the covenants, agreements, or stipulations of this Agreement, either party shall thereupon have the right to terminate this Agreement or suspend payments in whole or in part by giving written notice of such termination or suspension of payments and specify the effective date of termination or suspension. If payments are withheld, the CITY shall specify in writing the actions that must be taken by the SUBRECIPIENT as a condition precedent to resumption of payments and shall specify a reasonable date for compliance. Sufficient cause for suspension of payments shall include, but not be limited to: a. ineffective or improper use of ARPA funds, b. failure to comply with the Statement of Work or terms of this Agreement, c. failure to submit reports as required, d. submittal of materially incorrect or incomplete reports, e. failure to comply with any additional conditions that may be imposed by the Treasury, OMB, or CITY. 5.2 Termination for Convenience of City: The CITY may terminate this Agreement without cause at any time by giving at least ten (10) working days' notice in writing to the {00553335.1306-9905603} Page 3 of 10 Page 884 of 971 SUBRECIPIENT. If this Agreement is terminated by the CITY as provided herein, the SUBRECIPIENT will be paid for allowable services performed under Article II of this Agreement until the effective date of the termination. 5.3 Termination for Convenience of the SUBRECIPIENT: At any time during the term of this Agreement, the SUBRECIPIENT may, at its option and for any reason, terminate this Agreement upon ten (10) working days written notice to the CITY. Upon termination, the SUBRECIPIENT shall be paid for services rendered pursuant to this Agreement through and including the date of termination. ARTICLE VI RECORDS AND REPORTS 6.1 The SUBRECIPIENT agrees to maintain and produce all business records related to use of the subaward grant funds and related business expenditures from the time of grant award through December 31, 2030. 6.2 The SUBRECIPIENT agrees to submit upon request other documentation which may later be determined necessary to assure compliance with this Agreement. ARTICLE VII PROGRAM INCOME The SUBRECIPIENT agrees to expend ARPA funds for the purpose outlined in Article I of this Agreement. It is not anticipated that program income shall be generated from this allocation. However, such income, if generated, may be retained by the SUBRECIPIENT and used for costs that are in addition to the approved costs of this agreement, provided that such costs specifically further the objectives of this agreement and are an eligible use under 31 CFR 35.6. Under no circumstances shall the SUBRECIPIENT use program income to pay for charges or expenses that are specifically not allowed pursuant to the terms of this agreement and applicable federal regulations or rules. The use of program income by the SUBRECIPIENT shall comply with the requirements set forth at 31 CFR 35.6 and must be pre -approved by the CITY. ARTICLE VIII PUBLICITY The SUBRECIPIENT shall ensure that all publicity, public relations, advertisements and signs, recognize the CITY and the ARPA Program for the support of all contracted activities. The use of the official CITY logo is permissible, but all signs used to publicize CITY contracted activities must be approved by the CITY prior to being posted. ARTICLE IX GENERAL CONDITIONS 9.1 Federal Office of Management and Budget Requirements: The SUBRECIPIENT shall comply with requirements established by the Federal Office of Management and Budget (OMB) concerning the Dun and Bradstreet Data Universal Numbering System (DUNS) and System for Award Management (SAM) database, as set forth on 2 CFR Part 200, and the Federal Accountability and Transparency Act, as set forth at 2 CFR Part 170. {00553335.1306-9905603} Page 4 of 10 Page 885 of 971 9.2 Federal, State, County and CITY Laws and Regulations: The SUBRECIPIENT shall comply with applicable provisions of applicable federal, state, County, and CITY laws, regulations and rules, including 2 CFR part 200, subpart E, OMB A-21, 2 CFR part 200, subpart F. The SUBRECIPIENT shall comply with Section 504 of the Rehabilitation Act of 1973, as amended, which prohibits discrimination on the basis of handicap; Title VI of the Civil Rights Act of 1964, as amended, which prohibits discrimination on the basis of race, color, or national origin; the Age Discrimination Act of 1975, as amended, which prohibits discrimination on the basis of age; Title VIII of the Civil Rights Act of 1968, as amended, and Executive Order 11063 which prohibits discrimination in housing on the basis of race, color, religion, sex, or national origin; Executive Order 11246, as amended which requires equal employment opportunity; and with the Energy Policy, amended and Conservation Act (Pub.L 94-163) which requires mandatory standards and policies relating to energy efficiency. The SUBRECIPIENT shall report its compliance with Section 504 of the Rehabilitation Act whenever so requested by the CITY. The SUBRECIPIENT shall comply with all applicable requirements of the Americans with Disabilities Act (ADA) of 1990, including, but not limited to, those provisions pertaining to employment, program services, transportation, communications, access to facilities, renovations, and new construction. 9.3 Other Program Requirements: The SUBRECIPIENT shall comply with all federal laws and regulations pertaining to 31 CFR 35.6 Treasury Department Interim Regulations, Treasury Department CSLFRF Frequently Asked Questions, and Treasury Department CSLFRF Compliance and Reporting Guidance. 9.4 Opportunities for Residents and Civil Rights Compliance: The SUBRECIPIENT agrees that no person shall on the grounds of race, color, national origin, religion, or sex be excluded from the benefits of, or be subjected to, discrimination under any activity carried out by the performance of this Agreement. To the greatest feasible extent, lower-income residents of the project areas shall be given opportunities for training and employment; and to the greatest feasible extent, eligible business concerns located in or owned in substantial part by persons residing in the project areas shall be awarded contracts in connection with the project. 9.5 Evaluation and Monitoring: The SUBRECIPIENT agrees that the CITY will carry out periodic monitoring and evaluation activities as determined necessary and that the continuation and/or renewal of this Agreement is dependent upon satisfactory evaluation conclusions. Such evaluations will be based on the terms of this Agreement, comparisons of planned versus actual progress relating to activity scheduling, budgets, audit reports, and output measures. The SUBRECIPIENT agrees to furnish upon request to the CITY and make copies of transcriptions of such records and information as is determined necessary by the CITY. The SUBRECIPIENT shall submit on a schedule set by the CITY and at other times upon request, information and status reports required by the CITY to enable the evaluation of said progress and to allow for completion of reports required of the CITY by the Treasury. The SUBRECIPIENT shall allow the CITY or the Treasury to monitor its agency on site. Such site visits may be scheduled or unscheduled as determined by the CITY or the Treasury. Ongoing monitoring of the SUBRECIPIENT will be done through quarterly reporting from the SUBRECIPIENT to the City. Reporting requirements will be based upon the {00553335.1306-9905603} Page 5 of 10 Page 886 of 971 SUBRECIPIENT'S risk assessment and in compliance with the CSLFRF Compliance and Reporting Guidance and Uniform Guidance 2 CFR Part 200. Monitoring will include identification of deficiencies in meeting stated requirements in Article II of this agreement and follow-up to ensure appropriate remediation. 9.6 Audits: Any non-federal agency and/or non-profit organization that expends $750,000 or more annually in federal awards shall have a single or program specific audit conducted accordance with 2 CFR 200, Subpart F. Non-federal agencies and/or nonprofit organizations that expend less than $750,000 annually in federal awards shall be exempt from an audit conducted in accordance with 2 CFR 200, Subpart F, although their records must be available for review. These agencies are required by the CITY to submit "reduced scope" audits (e.g., financial audits, performance audits). Each audit shall cover a time period of not more than 12 months and an audit shall be submitted covering each assisted period until all the assistance received from this agreement has been reported on. A copy of the audit report must be received by the CITY no later than six months following each audit period. The SUBRECIPIENT shall maintain all records in accordance with generally accepted accounting principles, procedures, and practices which shall sufficiently and properly reflect all revenues and expenditures of funds provided directly or indirectly by the CITY pursuant to the terms of this agreement. 9.7 Uniform Administrative Requirements: The SUBRECIPIENT agrees to maintain books, records and documents in accordance with accounting procedures and practices which sufficiently and properly reflect all expenditures of funds provided by the CITY under this Agreement. The SUBRECIPIENT is required to comply with the following uniform administrative requirements: a. Specific provisions of the uniform administrative requirements of 2 CFR 200, Subpart E — Cost Principles b. OMB 2021 Compliance Supplement Addendum Final V2 (Audit Requirements). c. Applicable provisions of 31 CFR 35.6. 9.8 Lobbying Prohibition: The SUBRECIPIENT shall certify that no federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal Agreement, the making of any federal grant, the making of any federal loan, the entering into of any cooperative Agreement, and the extension, continuation, renewal, amendment, or modification of any federal Agreement, grant, loan, or cooperative Agreement. The SUBRECIPIENT shall disclose to the CITY if any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this federal Agreement. 9.9 Insurance: The SUBRECIPIENT shall furnish to the CITY, c/o the ARPA Project Manager, certificate(s) of current insurance coverage. {00553335.1306-9905603} Page 6 of 10 Page 887 of 971 9.10 Property: All real property purchased in whole or in part with funds from this agreement with the CITY, or transferred to the SUBRECIPIENT after being purchased in whole or in part with funds from the CITY, shall be listed in the property records of the SUBRECIPIENT and shall include a legal description, size, date of acquisition, value at time of acquisition, present market value, present condition, address or location, owner's name if different from the SUBRECIPIENT, information on the transfer or disposition of the property, and map. The property records shall describe the programmatic purpose for which the property was acquired and identify the ARPA national objective that will be met. If the property was improved, the records shall describe the programmatic purpose for which the improvements were made and identify the ARPA national objective that will be met. All nonexpendable personal property purchased in whole or in part with funds from this agreement with the CITY shall be listed in the property records of the SUBRECIPIENT and shall include a description of the property, location, model number, manufacturer's serial number, date of acquisition, funding source, unit cost at the time of acquisition, present market value, property inventory number, information on its condition, and information on transfer, replacement, or disposition of the property. The SUBRECIPIENT shall obtain prior written approval from the CITY for the disposition of real property, expendable personal property, and nonexpendable personal property purchased in whole or in part with funds given to the SUBRECIPIENT pursuant to the terms of this agreement. The SUBRECIPIENT shall dispose of all such property in accordance with instructions from the CITY. Those instructions may require the return of all such property to the CITY. 9.12 Reversion of Assets: The SUBRECIPIENT shall return to the CITY, upon expiration or termination of this Agreement, all the assets owned or held as a result of this Agreement, including, but not limited to any funds on hand, any accounts receivable attributable to these funds, mortgages, notes, and other collateral and any overpayments due to unearned funds or costs disallowed pursuant to the terms of this Agreement that were disbursed to the SUBRECIPIENT by the CITY. The SUBRECIPIENT shall within 30 days of expiration or termination of this Agreement execute any and all documents as required by the CITY to effectuate the reversion of assets. Any funds not earned, as described and provided for in 2 CFR 200, Subpart E, by the SUBRECIPIENT prior to the expiration or termination of this Agreement shall be retained by the CITY. 9.13 Conflicts with Applicable Laws: If any provision of this agreement conflicts with any applicable law or regulation, only the conflicting provision shall be deemed by the parties hereto to be modified to be consistent with the law or regulation or to be deleted if modification is impossible. However, the obligations under this agreement, as modified, shall continue and all other provisions of this agreement shall remain in full force and effect. 9.14 Renegotiation or Modification: Modifications of provisions of the agreement shall be valid only when in writing and signed by duly authorized representatives of each party. The parties agree to renegotiate this agreement if the CITY determines, in its sole and absolute discretion, that federal, State and/or CITY revisions of any applicable laws or regulations, or increases or decreases in budget allocations make changes in this agreement necessary. {00553335.1306-9905603} Page 7 of 10 Page 888 of 971 9.15 Right to Waive: The CITY may, for good and sufficient cause, as determined by the CITY in its sole and absolute discretion, waive provisions in this agreement or seek to obtain such waiver from the appropriate authority. Waiver requests from the SUBRECIPIENT shall be in writing. Any waiver shall not be construed to be a modification of this agreement. 9.16 Disputes: In the event an unresolved dispute exists between the SUBRECIPIENT and the CITY, the CITY shall refer the questions, including the views of all interested parties and the recommendation of the CITY, to the City Manager for determination. The City Manager, or an authorized representative, will issue a determination within 30 calendar days of receipt and so advise the CITY and the SUBRECIPIENT, or in the event additional time is necessary, the CITY will notify the SUBRECIPIENT within the 30 -day period that additional time is necessary. The SUBRECIPIENT agrees that the City Manager's determination shall be final and binding on all parties. 9.17 Indemnification: SUBRECIPIENT acknowledges the waiver of sovereign Immunity for liability in tort contained in Florida Statutes Section 768.28, the State of Florida's partial waiver of sovereign immunity, and acknowledges that such statute permits actions at law to recover damages in tort for money damages up to the limits set forth in such statute for death, personal injury or damage to property caused by the negligent or wrongful acts or omissions of an employee acting within the scope of the employee's office or employment. To the extent and limits of §768.28, Florida Statutes, SUBRECIPIENT will indemnify and be responsible for and hold CITY harmless from and against any and all claims, damages, costs, and expenses caused by its negligent or intentional acts, any copyright violations or arising out of the breach of this contract. Notwithstanding the forgoing, this provision is not intended to serve or constitute (i) an agreement by SUBRECIPIENT to indemnify CITY for Its own negligence; (ii) a waiver of sovereign immunity by SUBRECIPIENT; (iii) a waiver of any defense SUBRECIPIENT may have under such statute; (iv) the consent of SUBRECIPIENT or its officers, employees to be sued; or (v) a waiver of sovereign immunity of the State of Florida beyond the waiver provided in Section 768.28 of the Florida Statutes. If SUBRECIPIENT uses a subcontractor, SUBRECIPIENT shall, by written contract, require its subcontractors to agree to the requirements and obligations of this Section 9.17. 9.18 Public Records: SUBRECIPIENT shall comply with all public records laws in accordance with Chapter 119, Fla. Stat. In accordance with state law, SUBRECIPIENT agrees to: a) Keep and maintain all records that ordinarily and necessarily would be required by the CITY. b) Provide the public with access to public records on the same terms and conditions that the CITY would provide for the records and at a cost that does not exceed the costs provided in Chapter 119, Fla. Stat. or as otherwise provided by law. C) Ensure that public records that are exempt or confidential and exempt from public records disclosure are not disclosed except as authorized by law. d) Meet all requirements for retaining public records and transfer, at no cost, to the CITY all records in possession of the SUBRECIPIENT at the termination of the contract and destroy any public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored {00553335.1 306-9905603} Page 8 of 10 Page 889 of 971 electronically must be provided to the CITY in a format that is compatible with the information technology systems of the CITY. All records shall be transferred to the CITY prior to final payment being made to the SUBRECIPIENT. e) If SUBRECIPIENT does not comply with this section, the CITY shall enforce the contract provisions in accordance with the contract and may unilaterally cancel this contract in accordance with state law. 9.19 Inspector General: SUBRECIPIENT is aware that the Inspector General of Palm Beach County has the authority to investigate and audit matters relating to the negotiation and performance of this Agreement, and may demand and obtain records and testimony from SUBRECIPIENT. SUBRECIPIENT understands and agrees that in addition to all other remedies and consequences provided by law, the failure of SUBRECIPIENT to fully cooperate with the Inspector General when requested may be deemed by the CITY to be a material breach of this Agreement. IN WITNESS OF THE FOREGOING, the parties have set their hands and seals on this day of 2023. WITNESSES: THE SCHOOL BOARD OF PALM BEACH COUNTY on behalf of FOREST PARK ELEMENTARY Print Title Print STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this _ day of , 20237 by Personally Known — OR Produced Identification _Type of Identification Produced Seal NOTARY PUBLIC Signature Print {00553335.1 306-9905603} Page 9 of 10 Page 890 of 971 ATTEST: City Clerk CITY OF BOYNTON BEACH, FLORIDA Mayor Approved as to form: City Attorney {00553335.1306-9905603} Page 10 of 10 Page 891 of 971 ARPA SUBRECIPIENT GRANT AGREEMENT between CITY OF BOYNTON BEACH and THE SCHOOL BOARD OF PALM BEACH COUNTY on behalf of FREEDOM SHORES ELEMENTARY THIS AGREEMENT entered into this day of , 2023 is between the CITY OF BOYNTON BEACH, a Florida municipal corporation, hereinafter referred to as "CITY," and THE SCHOOL BOARD OF PALM BEACH COUNTY on behalf of FREEDOM SHORES ELEMENTARY hereinafter referred to as "the SUBRECIPIENT," having its principal office at 3366 Forest Hill Blvd. A 323, West Palm Beach, FL 33406 and its Federal Tax Identification Number as 85-8013897253C-1. WITNESSETH: WHEREAS, the CITY has entered into an Agreement with the U.S. Treasury Department for Coronavirus State and Local Fiscal Recovery Funds (CSLFRF) for the execution and implementation the American Rescue Plan Act (ARPA) in the CITY, pursuant to the Interim Final Rule of May 17, 2021, and the Final Rule, effective date April 1, 2022 (as amended); and WHEREAS, the CITY desires to engage the SUBRECIPIENT to implement an element of the Boynton Beach ARPA Master Spending Plan; NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, receipt of which is hereby acknowledged, the parties hereto agree as follows: ARTICLE I DEFINITION AND PURPOSE Definitions 1.1 "ARPA" means American Rescue Plan Act. 1.2 "Treasury" means the U.S. Department of Treasury. 1.3 "OMB" means the Federal Office of Management and Budget. 1.4 "CFR" means the Code of Federal Regulations. 1.5 "2 CFR" refers to the Section of the Code of Federal Regulations pertaining to Grants and Agreements. 1.6 "CSLFRF" means Coronavirus State and Local Fiscal Recovery Funds (also referred to as ARPA funds). 1.7 "31 CFR 35.6" refers to the Section of the Code of Federal Regulations pertaining to the Eligible Uses for Part 35, Subpart A — Coronavirus State and Local Fiscal Recovery Funds. {00552722.1306-9905603} Page 1 of 10 Page 892 of 971 1.8 "Program Income" means gross income received directly generated or earned from the use of ARPA funds. Program Income includes, but is not limited to, interest earned on advances of federal funds or royalties received as a result of patents or copyrights produced under this grant. 1.9 "Property" means any purchase of equipment or real property with CSLFRF funds must be consistent with the Uniform Guidance at 2 CFR Part 200, Subpart D. Equipment and real property acquired under this program must be used for the originally authorized purpose in project budget detail. a. "Real Property" means land, land improvements, structures, fixtures and appurtenances thereto, excluding movable machinery and equipment. b. "Personal Property" means personal property of any kind except real property. c. "Nonexpendable Personal Property" means tangible (i.e., physical) personal property of a non -consumable nature, with a value of $500 or more per item, with a normal expected life of one or more years, not fixed in place, and not an integral part of a structure, facility or another piece of equipment. d. "Expendable Personal Property" means all tangible personal property other than nonexpendable property. 1.10 "Subrecipient" means an entity, including but not limited to non -Federal entities, that receives a subaward from a pass-through entity to carry out part of a Federal award; but does not include an individual that is a beneficiary of such award. A subrecipient may also be a recipient of other Federal awards directly from a Federal awarding agency. 2. Purpose The purpose of this Agreement is to state the covenants and conditions under which the SUBRECIPIENT will implement the Statement of Work set forth in Article II of this agreement. ARTICLE II FUNDING AND BUDGET The maximum amount payable by the CITY under this Agreement will be Ninety -Two Thousand Dollars and 00/100 ($92,000.00). The SUBRECIPIENT shall carry out the activities specified in Attachment A, "Scope of Services." This award is a subaward of CSLFRF funds and the SUBRECIPIENT must comply with any and all requirements for use of CSLFR funds and reporting requirements for expenditures of CSLFRF funds. ARTICLE III FUNDING AND METHOD OF PAYMENT 3.1 The maximum amount payable by the CITY under this Agreement will be Ninety -Two Thousand Dollars and 00/100 ($92,000.00). It is expressly understood and agreed by the Parties that the funds contemplated by this Agreement originated from federal ARPA funds and funding is contingent upon approval and funding by the Boynton Beach City Commission. SUBRECIPIENT agrees to reimburse CITY, in full, all funds remitted to SUBRECIPIENT by CITY that do not comply with any and all requirements for use of ARPA funding. {00552722.1306-9905603} Page 2 of 10 Page 893 of 971 3.2 The CITY will be invoiced by the SUBRECIPIENT for eligible expenses on a reimbursement basis, and will disburse payments once per quarter unless there is a mutual written agreement otherwise (see Attachment "A" Scope of Services). Bills shall be submitted by the SUBRECIPIENT at least two weeks in advance and will be paid provided appropriate documentation and status and beneficiary reports are attached to the invoice. 3.3 Payment by the CITY shall be contingent upon timely receipt of accurate and complete reports and records required by this Agreement. 3.3 Prior to receipt of ARPA funds (through reimbursement), SUBRECIPIENT shall submit the following documentation: a. Quarterly Progress Report. b. All back up original documentation relating to the expenditures for which payment is sought. 3.4 Release of funds is subject to the approval of the ARPA Project Manager, Finance Director, and/or City Manager. ARTICLE IV TERM OF AGREEMENT The term of this Agreement shall be from March 1, 2023 through December 31, 2024. ARTICLE V SUSPENSION AND TERMINATION 5.1 Termination/Suspension of Payments/Agreement for Cause: If through any cause either party shall fail to fulfill in timely and proper manner its obligations under this Agreement, or if either party shall violate any of the covenants, agreements, or stipulations of this Agreement, either party shall thereupon have the right to terminate this Agreement or suspend payments in whole or in part by giving written notice of such termination or suspension of payments and specify the effective date of termination or suspension. If payments are withheld, the CITY shall specify in writing the actions that must be taken by the SUBRECIPIENT as a condition precedent to resumption of payments and shall specify a reasonable date for compliance. Sufficient cause for suspension of payments shall include, but not be limited to: a. ineffective or improper use of ARPA funds, b. failure to comply with the Statement of Work or terms of this Agreement, c. failure to submit reports as required, d. submittal of materially incorrect or incomplete reports, e. failure to comply with any additional conditions that may be imposed by the Treasury, OMB, or CITY. 5.2 Termination for Convenience of City: The CITY may terminate this Agreement without cause at any time by giving at least ten (10) working days' notice in writing to the {00552722.1306-9905603} Page 3 of 10 Page 894 of 971 SUBRECIPIENT. If this Agreement is terminated by the CITY as provided herein, the SUBRECIPIENT will be paid for allowable services performed under Article II of this Agreement until the effective date of the termination. 5.3 Termination for Convenience of the SUBRECIPIENT: At any time during the term of this Agreement, the SUBRECIPIENT may, at its option and for any reason, terminate this Agreement upon ten (10) working days written notice to the CITY. Upon termination, the SUBRECIPIENT shall be paid for services rendered pursuant to this Agreement through and including the date of termination. ARTICLE VI RECORDS AND REPORTS 6.1 The SUBRECIPIENT agrees to maintain and produce all business records related to use of the subaward grant funds and related business expenditures from the time of grant award through December 31, 2030. 6.2 The SUBRECIPIENT agrees to submit upon request other documentation which may later be determined necessary to assure compliance with this Agreement. ARTICLE VII PROGRAM INCOME The SUBRECIPIENT agrees to expend ARPA funds for the purpose outlined in Article I of this Agreement. It is not anticipated that program income shall be generated from this allocation. However, such income, if generated, may be retained by the SUBRECIPIENT and used for costs that are in addition to the approved costs of this agreement, provided that such costs specifically further the objectives of this agreement and are an eligible use under 31 CFR 35.6. Under no circumstances shall the SUBRECIPIENT use program income to pay for charges or expenses that are specifically not allowed pursuant to the terms of this agreement and applicable federal regulations or rules. The use of program income by the SUBRECIPIENT shall comply with the requirements set forth at 31 CFR 35.6 and must be pre -approved by the CITY. ARTICLE VIII PUBLICITY The SUBRECIPIENT shall ensure that all publicity, public relations, advertisements and signs, recognize the CITY and the ARPA Program for the support of all contracted activities. The use of the official CITY logo is permissible, but all signs used to publicize CITY contracted activities must be approved by the CITY prior to being posted. ARTICLE IX GENERAL CONDITIONS 9.1 Federal Office of Management and Budget Requirements: The SUBRECIPIENT shall comply with requirements established by the Federal Office of Management and Budget (OMB) concerning the Dun and Bradstreet Data Universal Numbering System (DUNS) and System for Award Management (SAM) database, as set forth on 2 CFR Part 200, and the Federal Accountability and Transparency Act, as set forth at 2 CFR Part 170. {00552722.1306-9905603} Page 4 of 10 Page 895 of 971 9.2 Federal, State, County and CITY Laws and Regulations: The SUBRECIPIENT shall comply with applicable provisions of applicable federal, state, County, and CITY laws, regulations and rules, including 2 CFR part 200, subpart E, OMB A-21, 2 CFR part 200, subpart F. The SUBRECIPIENT shall comply with Section 504 of the Rehabilitation Act of 1973, as amended, which prohibits discrimination on the basis of handicap; Title VI of the Civil Rights Act of 1964, as amended, which prohibits discrimination on the basis of race, color, or national origin; the Age Discrimination Act of 1975, as amended, which prohibits discrimination on the basis of age; Title VIII of the Civil Rights Act of 1968, as amended, and Executive Order 11063 which prohibits discrimination in housing on the basis of race, color, religion, sex, or national origin; Executive Order 11246, as amended which requires equal employment opportunity; and with the Energy Policy, amended and Conservation Act (Pub.L 94-163) which requires mandatory standards and policies relating to energy efficiency. The SUBRECIPIENT shall report its compliance with Section 504 of the Rehabilitation Act whenever so requested by the CITY. The SUBRECIPIENT shall comply with all applicable requirements of the Americans with Disabilities Act (ADA) of 1990, including, but not limited to, those provisions pertaining to employment, program services, transportation, communications, access to facilities, renovations, and new construction. 9.3 Other Program Requirements: The SUBRECIPIENT shall comply with all federal laws and regulations pertaining to 31 CFR 35.6 Treasury Department Interim Regulations, Treasury Department CSLFRF Frequently Asked Questions, and Treasury Department CSLFRF Compliance and Reporting Guidance. 9.4 Opportunities for Residents and Civil Rights Compliance: The SUBRECIPIENT agrees that no person shall on the grounds of race, color, national origin, religion, or sex be excluded from the benefits of, or be subjected to, discrimination under any activity carried out by the performance of this Agreement. To the greatest feasible extent, lower-income residents of the project areas shall be given opportunities for training and employment; and to the greatest feasible extent, eligible business concerns located in or owned in substantial part by persons residing in the project areas shall be awarded contracts in connection with the project. 9.5 Evaluation and Monitoring: The SUBRECIPIENT agrees that the CITY will carry out periodic monitoring and evaluation activities as determined necessary and that the continuation and/or renewal of this Agreement is dependent upon satisfactory evaluation conclusions. Such evaluations will be based on the terms of this Agreement, comparisons of planned versus actual progress relating to activity scheduling, budgets, audit reports, and output measures. The SUBRECIPIENT agrees to furnish upon request to the CITY and make copies of transcriptions of such records and information as is determined necessary by the CITY. The SUBRECIPIENT shall submit on a schedule set by the CITY and at other times upon request, information and status reports required by the CITY to enable the evaluation of said progress and to allow for completion of reports required of the CITY by the Treasury. The SUBRECIPIENT shall allow the CITY or the Treasury to monitor its agency on site. Such site visits may be scheduled or unscheduled as determined by the CITY or the Treasury. Ongoing monitoring of the SUBRECIPIENT will be done through quarterly reporting from the SUBRECIPIENT to the City. Reporting requirements will be based upon the {00552722.1306-9905603} Page 5 of 10 Page 896 of 971 SUBRECIPIENT'S risk assessment and in compliance with the CSLFRF Compliance and Reporting Guidance and Uniform Guidance 2 CFR Part 200. Monitoring will include identification of deficiencies in meeting stated requirements in Article II of this agreement and follow-up to ensure appropriate remediation. 9.6 Audits: Any non-federal agency and/or non-profit organization that expends $750,000 or more annually in federal awards shall have a single or program specific audit conducted accordance with 2 CFR 200, Subpart F. Non-federal agencies and/or nonprofit organizations that expend less than $750,000 annually in federal awards shall be exempt from an audit conducted in accordance with 2 CFR 200, Subpart F, although their records must be available for review. These agencies are required by the CITY to submit "reduced scope" audits (e.g., financial audits, performance audits). Each audit shall cover a time period of not more than 12 months and an audit shall be submitted covering each assisted period until all the assistance received from this agreement has been reported on. A copy of the audit report must be received by the CITY no later than six months following each audit period. The SUBRECIPIENT shall maintain all records in accordance with generally accepted accounting principles, procedures, and practices which shall sufficiently and properly reflect all revenues and expenditures of funds provided directly or indirectly by the CITY pursuant to the terms of this agreement. 9.7 Uniform Administrative Requirements: The SUBRECIPIENT agrees to maintain books, records and documents in accordance with accounting procedures and practices which sufficiently and properly reflect all expenditures of funds provided by the CITY under this Agreement. The SUBRECIPIENT is required to comply with the following uniform administrative requirements: a. Specific provisions of the uniform administrative requirements of 2 CFR 200, Subpart E — Cost Principles b. OMB 2021 Compliance Supplement Addendum Final V2 (Audit Requirements). c. Applicable provisions of 31 CFR 35.6. 9.8 Lobbying Prohibition: The SUBRECIPIENT shall certify that no federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal Agreement, the making of any federal grant, the making of any federal loan, the entering into of any cooperative Agreement, and the extension, continuation, renewal, amendment, or modification of any federal Agreement, grant, loan, or cooperative Agreement. The SUBRECIPIENT shall disclose to the CITY if any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this federal Agreement. 9.9 Insurance: The SUBRECIPIENT shall furnish to the CITY, c/o the ARPA Project Manager, certificate(s) of current insurance coverage. {00552722.1306-9905603} Page 6 of 10 Page 897 of 971 9.10 Property: All real property purchased in whole or in part with funds from this agreement with the CITY, or transferred to the SUBRECIPIENT after being purchased in whole or in part with funds from the CITY, shall be listed in the property records of the SUBRECIPIENT and shall include a legal description, size, date of acquisition, value at time of acquisition, present market value, present condition, address or location, owner's name if different from the SUBRECIPIENT, information on the transfer or disposition of the property, and map. The property records shall describe the programmatic purpose for which the property was acquired and identify the ARPA national objective that will be met. If the property was improved, the records shall describe the programmatic purpose for which the improvements were made and identify the ARPA national objective that will be met. All nonexpendable personal property purchased in whole or in part with funds from this agreement with the CITY shall be listed in the property records of the SUBRECIPIENT and shall include a description of the property, location, model number, manufacturer's serial number, date of acquisition, funding source, unit cost at the time of acquisition, present market value, property inventory number, information on its condition, and information on transfer, replacement, or disposition of the property. The SUBRECIPIENT shall obtain prior written approval from the CITY for the disposition of real property, expendable personal property, and nonexpendable personal property purchased in whole or in part with funds given to the SUBRECIPIENT pursuant to the terms of this agreement. The SUBRECIPIENT shall dispose of all such property in accordance with instructions from the CITY. Those instructions may require the return of all such property to the CITY. 9.12 Reversion of Assets: The SUBRECIPIENT shall return to the CITY, upon expiration or termination of this Agreement, all the assets owned or held as a result of this Agreement, including, but not limited to any funds on hand, any accounts receivable attributable to these funds, mortgages, notes, and other collateral and any overpayments due to unearned funds or costs disallowed pursuant to the terms of this Agreement that were disbursed to the SUBRECIPIENT by the CITY. The SUBRECIPIENT shall within 30 days of expiration or termination of this Agreement execute any and all documents as required by the CITY to effectuate the reversion of assets. Any funds not earned, as described and provided for in 2 CFR 200, Subpart E, by the SUBRECIPIENT prior to the expiration or termination of this Agreement shall be retained by the CITY. 9.13 Conflicts with Applicable Laws: If any provision of this agreement conflicts with any applicable law or regulation, only the conflicting provision shall be deemed by the parties hereto to be modified to be consistent with the law or regulation or to be deleted if modification is impossible. However, the obligations under this agreement, as modified, shall continue and all other provisions of this agreement shall remain in full force and effect. 9.14 Renegotiation or Modification: Modifications of provisions of the agreement shall be valid only when in writing and signed by duly authorized representatives of each party. The parties agree to renegotiate this agreement if the CITY determines, in its sole and absolute discretion, that federal, State and/or CITY revisions of any applicable laws or regulations, or increases or decreases in budget allocations make changes in this agreement necessary. {00552722.1306-9905603} Page 7 of 10 Page 898 of 971 9.15 Right to Waive: The CITY may, for good and sufficient cause, as determined by the CITY in its sole and absolute discretion, waive provisions in this agreement or seek to obtain such waiver from the appropriate authority. Waiver requests from the SUBRECIPIENT shall be in writing. Any waiver shall not be construed to be a modification of this agreement. 9.16 Disputes: In the event an unresolved dispute exists between the SUBRECIPIENT and the CITY, the CITY shall refer the questions, including the views of all interested parties and the recommendation of the CITY, to the City Manager for determination. The City Manager, or an authorized representative, will issue a determination within 30 calendar days of receipt and so advise the CITY and the SUBRECIPIENT, or in the event additional time is necessary, the CITY will notify the SUBRECIPIENT within the 30 -day period that additional time is necessary. The SUBRECIPIENT agrees that the City Manager's determination shall be final and binding on all parties. 9.17 Indemnification: SUBRECIPIENT acknowledges the waiver of sovereign Immunity for liability in tort contained in Florida Statutes Section 768.28, the State of Florida's partial waiver of sovereign immunity, and acknowledges that such statute permits actions at law to recover damages in tort for money damages up to the limits set forth in such statute for death, personal injury or damage to property caused by the negligent or wrongful acts or omissions of an employee acting within the scope of the employee's office or employment. To the extent and limits of §768.28, Florida Statutes, SUBRECIPIENT will indemnify and be responsible for and hold CITY harmless from and against any and all claims, damages, costs, and expenses caused by its negligent or intentional acts, any copyright violations or arising out of the breach of this contract. Notwithstanding the forgoing, this provision is not intended to serve or constitute (i) an agreement by SUBRECIPIENT to indemnify CITY for Its own negligence; (ii) a waiver of sovereign immunity by SUBRECIPIENT; (iii) a waiver of any defense SUBRECIPIENT may have under such statute; (iv) the consent of SUBRECIPIENT or its officers, employees to be sued; or (v) a waiver of sovereign immunity of the State of Florida beyond the waiver provided in Section 768.28 of the Florida Statutes. If SUBRECIPIENT uses a subcontractor, SUBRECIPIENT shall, by written contract, require its subcontractors to agree to the requirements and obligations of this Section 9.17. 9.18 Public Records: SUBRECIPIENT shall comply with all public records laws in accordance with Chapter 119, Fla. Stat. In accordance with state law, SUBRECIPIENT agrees to: a) Keep and maintain all records that ordinarily and necessarily would be required by the CITY. b) Provide the public with access to public records on the same terms and conditions that the CITY would provide for the records and at a cost that does not exceed the costs provided in Chapter 119, Fla. Stat. or as otherwise provided by law. C) Ensure that public records that are exempt or confidential and exempt from public records disclosure are not disclosed except as authorized by law. d) Meet all requirements for retaining public records and transfer, at no cost, to the CITY all records in possession of the SUBRECIPIENT at the termination of the contract and destroy any public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored {00552722.1 306-9905603} Page 8 of 10 Page 899 of 971 electronically must be provided to the CITY in a format that is compatible with the information technology systems of the CITY. All records shall be transferred to the CITY prior to final payment being made to the SUBRECIPIENT. e) If SUBRECIPIENT does not comply with this section, the CITY shall enforce the contract provisions in accordance with the contract and may unilaterally cancel this contract in accordance with state law. 9.19 Inspector General: SUBRECIPIENT is aware that the Inspector General of Palm Beach County has the authority to investigate and audit matters relating to the negotiation and performance of this Agreement, and may demand and obtain records and testimony from SUBRECIPIENT. SUBRECIPIENT understands and agrees that in addition to all other remedies and consequences provided by law, the failure of SUBRECIPIENT to fully cooperate with the Inspector General when requested may be deemed by the CITY to be a material breach of this Agreement. IN WITNESS OF THE FOREGOING, the parties have set their hands and seals on this day of 2023. WITNESSES: THE SCHOOL BOARD OF PALM BEACH COUNTY on behalf of FREEDOM SHORES ELEMENTARY M Print Print STATE OF FLORIDA COUNTY OF PALM BEACH Title The foregoing instrument was acknowledged before me this _ day of , 20237 by Personally Known _ OR Produced Identification _Type of Identification Produced Seal NOTARY PUBLIC Signature Print {00552722.1306-9905603} Page 9 of 10 Page 900 of 971 ATTEST: City Clerk CITY OF BOYNTON BEACH, FLORIDA Mayor Approved as to form: City Attorney {00552722.1306-9905603} Page 10 of 10 Page 901 of 971 ARPA SUBRECIPIENT GRANT AGREEMENT between CITY OF BOYNTON BEACH and THE SCHOOL BOARD OF PALM BEACH COUNTY on behalf of POINCIANA STEM ELEMENTARY THIS AGREEMENT entered into this day of , 2023 is between the CITY OF BOYNTON BEACH, a Florida municipal corporation, hereinafter referred to as "CITY," and THE SCHOOL BOARD OF PALM BEACH COUNTY on behalf of POINCIANA STEM ELEMENTARY hereinafter referred to as "the SUBRECIPIENT," having its principal office at 3366 Forest Hill Blvd. A 323, West Palm Beach, FL 33406 and its Federal Tax Identification Number as 85-8013897253C-1. WITNESSETH: WHEREAS, the CITY has entered into an Agreement with the U.S. Treasury Department for Coronavirus State and Local Fiscal Recovery Funds (CSLFRF) for the execution and implementation the American Rescue Plan Act (ARPA) in the CITY, pursuant to the Interim Final Rule of May 17, 2021, and the Final Rule, effective date April 1, 2022 (as amended); and WHEREAS, the CITY desires to engage the SUBRECIPIENT to implement an element of the Boynton Beach ARPA Master Spending Plan; NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, receipt of which is hereby acknowledged, the parties hereto agree as follows: ARTICLE I DEFINITION AND PURPOSE Definitions 1.1 "ARPA" means American Rescue Plan Act. 1.2 "Treasury" means the U.S. Department of Treasury. 1.3 "OMB" means the Federal Office of Management and Budget. 1.4 "CFR" means the Code of Federal Regulations. 1.5 "2 CFR" refers to the Section of the Code of Federal Regulations pertaining to Grants and Agreements. 1.6 "CSLFRF" means Coronavirus State and Local Fiscal Recovery Funds (also referred to as ARPA funds). 1.7 "31 CFR 35.6" refers to the Section of the Code of Federal Regulations pertaining to the Eligible Uses for Part 35, Subpart A — Coronavirus State and Local Fiscal Recovery Funds. {00553337.1306-9905603} Page 1 of 10 Page 902 of 971 1.8 "Program Income" means gross income received directly generated or earned from the use of ARPA funds. Program Income includes, but is not limited to, interest earned on advances of federal funds or royalties received as a result of patents or copyrights produced under this grant. 1.9 "Property" means any purchase of equipment or real property with CSLFRF funds must be consistent with the Uniform Guidance at 2 CFR Part 200, Subpart D. Equipment and real property acquired under this program must be used for the originally authorized purpose in project budget detail. a. "Real Property" means land, land improvements, structures, fixtures and appurtenances thereto, excluding movable machinery and equipment. b. "Personal Property" means personal property of any kind except real property. c. "Nonexpendable Personal Property" means tangible (i.e., physical) personal property of a non -consumable nature, with a value of $500 or more per item, with a normal expected life of one or more years, not fixed in place, and not an integral part of a structure, facility or another piece of equipment. d. "Expendable Personal Property" means all tangible personal property other than nonexpendable property. 1.10 "Subrecipient" means an entity, including but not limited to non -Federal entities, that receives a subaward from a pass-through entity to carry out part of a Federal award; but does not include an individual that is a beneficiary of such award. A subrecipient may also be a recipient of other Federal awards directly from a Federal awarding agency. 2. Purpose The purpose of this Agreement is to state the covenants and conditions under which the SUBRECIPIENT will implement the Statement of Work set forth in Article II of this agreement. ARTICLE II FUNDING AND BUDGET The maximum amount payable by the CITY under this Agreement will be Ninety -Two Thousand Dollars and 00/100 ($92,000.00). The SUBRECIPIENT shall carry out the activities specified in Attachment A, "Scope of Services." This award is a subaward of CSLFRF funds and the SUBRECIPIENT must comply with any and all requirements for use of CSLFR funds and reporting requirements for expenditures of CSLFRF funds. ARTICLE III FUNDING AND METHOD OF PAYMENT 3.1 The maximum amount payable by the CITY under this Agreement will be Ninety -Two Thousand Dollars and 00/100 ($92,000.00). It is expressly understood and agreed by the Parties that the funds contemplated by this Agreement originated from federal ARPA funds and funding is contingent upon approval and funding by the Boynton Beach City Commission. SUBRECIPIENT agrees to reimburse CITY, in full, all funds remitted to SUBRECIPIENT by CITY that do not comply with any and all requirements for use of ARPA funding. {00553337.1306-9905603} Page 2 of 10 Page 903 of 971 3.2 The CITY will be invoiced by the SUBRECIPIENT for eligible expenses on a reimbursement basis, and will disburse payments once per quarter unless there is a mutual written agreement otherwise (see Attachment "A" Scope of Services). Bills shall be submitted by the SUBRECIPIENT at least two weeks in advance and will be paid provided appropriate documentation and status and beneficiary reports are attached to the invoice. 3.3 Payment by the CITY shall be contingent upon timely receipt of accurate and complete reports and records required by this Agreement. 3.3 Prior to receipt of ARPA funds (through reimbursement), SUBRECIPIENT shall submit the following documentation: a. Quarterly Progress Report. b. All back up original documentation relating to the expenditures for which payment is sought. 3.4 Release of funds is subject to the approval of the ARPA Project Manager, Finance Director, and/or City Manager. ARTICLE IV TERM OF AGREEMENT The term of this Agreement shall be from March 1, 2023 through December 31, 2024. ARTICLE V SUSPENSION AND TERMINATION 5.1 Termination/Suspension of Payments/Agreement for Cause: If through any cause either party shall fail to fulfill in timely and proper manner its obligations under this Agreement, or if either party shall violate any of the covenants, agreements, or stipulations of this Agreement, either party shall thereupon have the right to terminate this Agreement or suspend payments in whole or in part by giving written notice of such termination or suspension of payments and specify the effective date of termination or suspension. If payments are withheld, the CITY shall specify in writing the actions that must be taken by the SUBRECIPIENT as a condition precedent to resumption of payments and shall specify a reasonable date for compliance. Sufficient cause for suspension of payments shall include, but not be limited to: a. ineffective or improper use of ARPA funds, b. failure to comply with the Statement of Work or terms of this Agreement, c. failure to submit reports as required, d. submittal of materially incorrect or incomplete reports, e. failure to comply with any additional conditions that may be imposed by the Treasury, OMB, or CITY. 5.2 Termination for Convenience of City: The CITY may terminate this Agreement without cause at any time by giving at least ten (10) working days' notice in writing to the {00553337.1306-9905603} Page 3 of 10 Page 904 of 971 SUBRECIPIENT. If this Agreement is terminated by the CITY as provided herein, the SUBRECIPIENT will be paid for allowable services performed under Article II of this Agreement until the effective date of the termination. 5.3 Termination for Convenience of the SUBRECIPIENT: At any time during the term of this Agreement, the SUBRECIPIENT may, at its option and for any reason, terminate this Agreement upon ten (10) working days written notice to the CITY. Upon termination, the SUBRECIPIENT shall be paid for services rendered pursuant to this Agreement through and including the date of termination. ARTICLE VI RECORDS AND REPORTS 6.1 The SUBRECIPIENT agrees to maintain and produce all business records related to use of the subaward grant funds and related business expenditures from the time of grant award through December 31, 2030. 6.2 The SUBRECIPIENT agrees to submit upon request other documentation which may later be determined necessary to assure compliance with this Agreement. ARTICLE VII PROGRAM INCOME The SUBRECIPIENT agrees to expend ARPA funds for the purpose outlined in Article I of this Agreement. It is not anticipated that program income shall be generated from this allocation. However, such income, if generated, may be retained by the SUBRECIPIENT and used for costs that are in addition to the approved costs of this agreement, provided that such costs specifically further the objectives of this agreement and are an eligible use under 31 CFR 35.6. Under no circumstances shall the SUBRECIPIENT use program income to pay for charges or expenses that are specifically not allowed pursuant to the terms of this agreement and applicable federal regulations or rules. The use of program income by the SUBRECIPIENT shall comply with the requirements set forth at 31 CFR 35.6 and must be pre -approved by the CITY. ARTICLE VIII PUBLICITY The SUBRECIPIENT shall ensure that all publicity, public relations, advertisements and signs, recognize the CITY and the ARPA Program for the support of all contracted activities. The use of the official CITY logo is permissible, but all signs used to publicize CITY contracted activities must be approved by the CITY prior to being posted. ARTICLE IX GENERAL CONDITIONS 9.1 Federal Office of Management and Budget Requirements: The SUBRECIPIENT shall comply with requirements established by the Federal Office of Management and Budget (OMB) concerning the Dun and Bradstreet Data Universal Numbering System (DUNS) and System for Award Management (SAM) database, as set forth on 2 CFR Part 200, and the Federal Accountability and Transparency Act, as set forth at 2 CFR Part 170. {00553337.1306-9905603} Page 4 of 10 Page 905 of 971 9.2 Federal, State, County and CITY Laws and Regulations: The SUBRECIPIENT shall comply with applicable provisions of applicable federal, state, County, and CITY laws, regulations and rules, including 2 CFR part 200, subpart E, OMB A-21, 2 CFR part 200, subpart F. The SUBRECIPIENT shall comply with Section 504 of the Rehabilitation Act of 1973, as amended, which prohibits discrimination on the basis of handicap; Title VI of the Civil Rights Act of 1964, as amended, which prohibits discrimination on the basis of race, color, or national origin; the Age Discrimination Act of 1975, as amended, which prohibits discrimination on the basis of age; Title VIII of the Civil Rights Act of 1968, as amended, and Executive Order 11063 which prohibits discrimination in housing on the basis of race, color, religion, sex, or national origin; Executive Order 11246, as amended which requires equal employment opportunity; and with the Energy Policy, amended and Conservation Act (Pub.L 94-163) which requires mandatory standards and policies relating to energy efficiency. The SUBRECIPIENT shall report its compliance with Section 504 of the Rehabilitation Act whenever so requested by the CITY. The SUBRECIPIENT shall comply with all applicable requirements of the Americans with Disabilities Act (ADA) of 1990, including, but not limited to, those provisions pertaining to employment, program services, transportation, communications, access to facilities, renovations, and new construction. 9.3 Other Program Requirements: The SUBRECIPIENT shall comply with all federal laws and regulations pertaining to 31 CFR 35.6 Treasury Department Interim Regulations, Treasury Department CSLFRF Frequently Asked Questions, and Treasury Department CSLFRF Compliance and Reporting Guidance. 9.4 Opportunities for Residents and Civil Rights Compliance: The SUBRECIPIENT agrees that no person shall on the grounds of race, color, national origin, religion, or sex be excluded from the benefits of, or be subjected to, discrimination under any activity carried out by the performance of this Agreement. To the greatest feasible extent, lower-income residents of the project areas shall be given opportunities for training and employment; and to the greatest feasible extent, eligible business concerns located in or owned in substantial part by persons residing in the project areas shall be awarded contracts in connection with the project. 9.5 Evaluation and Monitoring: The SUBRECIPIENT agrees that the CITY will carry out periodic monitoring and evaluation activities as determined necessary and that the continuation and/or renewal of this Agreement is dependent upon satisfactory evaluation conclusions. Such evaluations will be based on the terms of this Agreement, comparisons of planned versus actual progress relating to activity scheduling, budgets, audit reports, and output measures. The SUBRECIPIENT agrees to furnish upon request to the CITY and make copies of transcriptions of such records and information as is determined necessary by the CITY. The SUBRECIPIENT shall submit on a schedule set by the CITY and at other times upon request, information and status reports required by the CITY to enable the evaluation of said progress and to allow for completion of reports required of the CITY by the Treasury. The SUBRECIPIENT shall allow the CITY or the Treasury to monitor its agency on site. Such site visits may be scheduled or unscheduled as determined by the CITY or the Treasury. Ongoing monitoring of the SUBRECIPIENT will be done through quarterly reporting from the SUBRECIPIENT to the City. Reporting requirements will be based upon the {00553337.1306-9905603} Page 5 of 10 Page 906 of 971 SUBRECIPIENT'S risk assessment and in compliance with the CSLFRF Compliance and Reporting Guidance and Uniform Guidance 2 CFR Part 200. Monitoring will include identification of deficiencies in meeting stated requirements in Article II of this agreement and follow-up to ensure appropriate remediation. 9.6 Audits: Any non-federal agency and/or non-profit organization that expends $750,000 or more annually in federal awards shall have a single or program specific audit conducted accordance with 2 CFR 200, Subpart F. Non-federal agencies and/or nonprofit organizations that expend less than $750,000 annually in federal awards shall be exempt from an audit conducted in accordance with 2 CFR 200, Subpart F, although their records must be available for review. These agencies are required by the CITY to submit "reduced scope" audits (e.g., financial audits, performance audits). Each audit shall cover a time period of not more than 12 months and an audit shall be submitted covering each assisted period until all the assistance received from this agreement has been reported on. A copy of the audit report must be received by the CITY no later than six months following each audit period. The SUBRECIPIENT shall maintain all records in accordance with generally accepted accounting principles, procedures, and practices which shall sufficiently and properly reflect all revenues and expenditures of funds provided directly or indirectly by the CITY pursuant to the terms of this agreement. 9.7 Uniform Administrative Requirements: The SUBRECIPIENT agrees to maintain books, records and documents in accordance with accounting procedures and practices which sufficiently and properly reflect all expenditures of funds provided by the CITY under this Agreement. The SUBRECIPIENT is required to comply with the following uniform administrative requirements: a. Specific provisions of the uniform administrative requirements of 2 CFR 200, Subpart E — Cost Principles b. OMB 2021 Compliance Supplement Addendum Final V2 (Audit Requirements). c. Applicable provisions of 31 CFR 35.6. 9.8 Lobbying Prohibition: The SUBRECIPIENT shall certify that no federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal Agreement, the making of any federal grant, the making of any federal loan, the entering into of any cooperative Agreement, and the extension, continuation, renewal, amendment, or modification of any federal Agreement, grant, loan, or cooperative Agreement. The SUBRECIPIENT shall disclose to the CITY if any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this federal Agreement. 9.9 Insurance: The SUBRECIPIENT shall furnish to the CITY, c/o the ARPA Project Manager, certificate(s) of current insurance coverage. {00553337.1306-9905603} Page 6 of 10 Page 907 of 971 9.10 Property: All real property purchased in whole or in part with funds from this agreement with the CITY, or transferred to the SUBRECIPIENT after being purchased in whole or in part with funds from the CITY, shall be listed in the property records of the SUBRECIPIENT and shall include a legal description, size, date of acquisition, value at time of acquisition, present market value, present condition, address or location, owner's name if different from the SUBRECIPIENT, information on the transfer or disposition of the property, and map. The property records shall describe the programmatic purpose for which the property was acquired and identify the ARPA national objective that will be met. If the property was improved, the records shall describe the programmatic purpose for which the improvements were made and identify the ARPA national objective that will be met. All nonexpendable personal property purchased in whole or in part with funds from this agreement with the CITY shall be listed in the property records of the SUBRECIPIENT and shall include a description of the property, location, model number, manufacturer's serial number, date of acquisition, funding source, unit cost at the time of acquisition, present market value, property inventory number, information on its condition, and information on transfer, replacement, or disposition of the property. The SUBRECIPIENT shall obtain prior written approval from the CITY for the disposition of real property, expendable personal property, and nonexpendable personal property purchased in whole or in part with funds given to the SUBRECIPIENT pursuant to the terms of this agreement. The SUBRECIPIENT shall dispose of all such property in accordance with instructions from the CITY. Those instructions may require the return of all such property to the CITY. 9.12 Reversion of Assets: The SUBRECIPIENT shall return to the CITY, upon expiration or termination of this Agreement, all the assets owned or held as a result of this Agreement, including, but not limited to any funds on hand, any accounts receivable attributable to these funds, mortgages, notes, and other collateral and any overpayments due to unearned funds or costs disallowed pursuant to the terms of this Agreement that were disbursed to the SUBRECIPIENT by the CITY. The SUBRECIPIENT shall within 30 days of expiration or termination of this Agreement execute any and all documents as required by the CITY to effectuate the reversion of assets. Any funds not earned, as described and provided for in 2 CFR 200, Subpart E, by the SUBRECIPIENT prior to the expiration or termination of this Agreement shall be retained by the CITY. 9.13 Conflicts with Applicable Laws: If any provision of this agreement conflicts with any applicable law or regulation, only the conflicting provision shall be deemed by the parties hereto to be modified to be consistent with the law or regulation or to be deleted if modification is impossible. However, the obligations under this agreement, as modified, shall continue and all other provisions of this agreement shall remain in full force and effect. 9.14 Renegotiation or Modification: Modifications of provisions of the agreement shall be valid only when in writing and signed by duly authorized representatives of each party. The parties agree to renegotiate this agreement if the CITY determines, in its sole and absolute discretion, that federal, State and/or CITY revisions of any applicable laws or regulations, or increases or decreases in budget allocations make changes in this agreement necessary. {00553337.1306-9905603} Page 7 of 10 Page 908 of 971 9.15 Right to Waive: The CITY may, for good and sufficient cause, as determined by the CITY in its sole and absolute discretion, waive provisions in this agreement or seek to obtain such waiver from the appropriate authority. Waiver requests from the SUBRECIPIENT shall be in writing. Any waiver shall not be construed to be a modification of this agreement. 9.16 Disputes: In the event an unresolved dispute exists between the SUBRECIPIENT and the CITY, the CITY shall refer the questions, including the views of all interested parties and the recommendation of the CITY, to the City Manager for determination. The City Manager, or an authorized representative, will issue a determination within 30 calendar days of receipt and so advise the CITY and the SUBRECIPIENT, or in the event additional time is necessary, the CITY will notify the SUBRECIPIENT within the 30 -day period that additional time is necessary. The SUBRECIPIENT agrees that the City Manager's determination shall be final and binding on all parties. 9.17 Indemnification: SUBRECIPIENT acknowledges the waiver of sovereign Immunity for liability in tort contained in Florida Statutes Section 768.28, the State of Florida's partial waiver of sovereign immunity, and acknowledges that such statute permits actions at law to recover damages in tort for money damages up to the limits set forth in such statute for death, personal injury or damage to property caused by the negligent or wrongful acts or omissions of an employee acting within the scope of the employee's office or employment. To the extent and limits of §768.28, Florida Statutes, SUBRECIPIENT will indemnify and be responsible for and hold CITY harmless from and against any and all claims, damages, costs, and expenses caused by its negligent or intentional acts, any copyright violations or arising out of the breach of this contract. Notwithstanding the forgoing, this provision is not intended to serve or constitute (i) an agreement by SUBRECIPIENT to indemnify CITY for Its own negligence; (ii) a waiver of sovereign immunity by SUBRECIPIENT; (iii) a waiver of any defense SUBRECIPIENT may have under such statute; (iv) the consent of SUBRECIPIENT or its officers, employees to be sued; or (v) a waiver of sovereign immunity of the State of Florida beyond the waiver provided in Section 768.28 of the Florida Statutes. If SUBRECIPIENT uses a subcontractor, SUBRECIPIENT shall, by written contract, require its subcontractors to agree to the requirements and obligations of this Section 9.17. 9.18 Public Records: SUBRECIPIENT shall comply with all public records laws in accordance with Chapter 119, Fla. Stat. In accordance with state law, SUBRECIPIENT agrees to: a) Keep and maintain all records that ordinarily and necessarily would be required by the CITY. b) Provide the public with access to public records on the same terms and conditions that the CITY would provide for the records and at a cost that does not exceed the costs provided in Chapter 119, Fla. Stat. or as otherwise provided by law. C) Ensure that public records that are exempt or confidential and exempt from public records disclosure are not disclosed except as authorized by law. d) Meet all requirements for retaining public records and transfer, at no cost, to the CITY all records in possession of the SUBRECIPIENT at the termination of the contract and destroy any public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored {00553337.1 306-9905603} Page 8 of 10 Page 909 of 971 electronically must be provided to the CITY in a format that is compatible with the information technology systems of the CITY. All records shall be transferred to the CITY prior to final payment being made to the SUBRECIPIENT. e) If SUBRECIPIENT does not comply with this section, the CITY shall enforce the contract provisions in accordance with the contract and may unilaterally cancel this contract in accordance with state law. 9.19 Inspector General: SUBRECIPIENT is aware that the Inspector General of Palm Beach County has the authority to investigate and audit matters relating to the negotiation and performance of this Agreement, and may demand and obtain records and testimony from SUBRECIPIENT. SUBRECIPIENT understands and agrees that in addition to all other remedies and consequences provided by law, the failure of SUBRECIPIENT to fully cooperate with the Inspector General when requested may be deemed by the CITY to be a material breach of this Agreement. IN WITNESS OF THE FOREGOING, the parties have set their hands and seals on this day of 2023. WITNESSES: THE SCHOOL BOARD OF PALM BEACH COUNTY on behalf of POINCIANA STEM ELEMENTARY M Print Print STATE OF FLORIDA COUNTY OF PALM BEACH Title The foregoing instrument was acknowledged before me this _ day of , 20237 by Personally Known _ OR Produced Identification _Type of Identification Produced Seal NOTARY PUBLIC Signature Print {00553337.1306-9905603} Page 9 of 10 Page 910 of 971 ATTEST: City Clerk CITY OF BOYNTON BEACH, FLORIDA Mayor Approved as to form: City Attorney {00553337.1306-9905603} Page 10 of 10 Page 911 of 971 ARPA SUBRECIPIENT GRANT AGREEMENT between CITY OF BOYNTON BEACH and THE SCHOOL BOARD OF PALM BEACH COUNTY on behalf of ROLLING GREEN ELEMENTARY THIS AGREEMENT entered into this day of , 2023 is between the CITY OF BOYNTON BEACH, a Florida municipal corporation, hereinafter referred to as "CITY," and THE SCHOOL BOARD OF PALM BEACH COUNTY on behalf of ROLLING GREEN ELEMENTARY hereinafter referred to as "the SUBRECIPIENT," having its principal office at 3366 Forest Hill Blvd. A 323, West Palm Beach, FL 33406 and its Federal Tax Identification Number as 85-8013897253C-1. WITNESSETH: WHEREAS, the CITY has entered into an Agreement with the U.S. Treasury Department for Coronavirus State and Local Fiscal Recovery Funds (CSLFRF) for the execution and implementation the American Rescue Plan Act (ARPA) in the CITY, pursuant to the Interim Final Rule of May 17, 2021, and the Final Rule, effective date April 1, 2022 (as amended); and WHEREAS, the CITY desires to engage the SUBRECIPIENT to implement an element of the Boynton Beach ARPA Master Spending Plan; NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, receipt of which is hereby acknowledged, the parties hereto agree as follows: ARTICLE I DEFINITION AND PURPOSE Definitions 1.1 "ARPA" means American Rescue Plan Act. 1.2 "Treasury" means the U.S. Department of Treasury. 1.3 "OMB" means the Federal Office of Management and Budget. 1.4 "CFR" means the Code of Federal Regulations. 1.5 "2 CFR" refers to the Section of the Code of Federal Regulations pertaining to Grants and Agreements. 1.6 "CSLFRF" means Coronavirus State and Local Fiscal Recovery Funds (also referred to as ARPA funds). 1.7 "31 CFR 35.6" refers to the Section of the Code of Federal Regulations pertaining to the Eligible Uses for Part 35, Subpart A — Coronavirus State and Local Fiscal Recovery Funds. {00553342.1306-9905603} Page 1 of 10 Page 912 of 971 1.8 "Program Income" means gross income received directly generated or earned from the use of ARPA funds. Program Income includes, but is not limited to, interest earned on advances of federal funds or royalties received as a result of patents or copyrights produced under this grant. 1.9 "Property" means any purchase of equipment or real property with CSLFRF funds must be consistent with the Uniform Guidance at 2 CFR Part 200, Subpart D. Equipment and real property acquired under this program must be used for the originally authorized purpose in project budget detail. a. "Real Property" means land, land improvements, structures, fixtures and appurtenances thereto, excluding movable machinery and equipment. b. "Personal Property" means personal property of any kind except real property. c. "Nonexpendable Personal Property" means tangible (i.e., physical) personal property of a non -consumable nature, with a value of $500 or more per item, with a normal expected life of one or more years, not fixed in place, and not an integral part of a structure, facility or another piece of equipment. d. "Expendable Personal Property" means all tangible personal property other than nonexpendable property. 1.10 "Subrecipient" means an entity, including but not limited to non -Federal entities, that receives a subaward from a pass-through entity to carry out part of a Federal award; but does not include an individual that is a beneficiary of such award. A subrecipient may also be a recipient of other Federal awards directly from a Federal awarding agency. 2. Purpose The purpose of this Agreement is to state the covenants and conditions under which the SUBRECIPIENT will implement the Statement of Work set forth in Article II of this agreement. ARTICLE II FUNDING AND BUDGET The maximum amount payable by the CITY under this Agreement will be One Hundred Thousand Dollars and 00/100 ($100,000.00). The SUBRECIPIENT shall carry out the activities specified in Attachment A, "Scope of Services." This award is a subaward of CSLFRF funds and the SUBRECIPIENT must comply with any and all requirements for use of CSLFR funds and reporting requirements for expenditures of CSLFRF funds. ARTICLE III FUNDING AND METHOD OF PAYMENT 3.1 The maximum amount payable by the CITY under this Agreement will be One Hundred Thousand Dollars and 00/100 ($100,000.00). It is expressly understood and agreed by the Parties that the funds contemplated by this Agreement originated from federal ARPA funds and funding is contingent upon approval and funding by the Boynton Beach City Commission. SUBRECIPIENT agrees to reimburse CITY, in full, all funds remitted to SUBRECIPIENT by CITY that do not comply with any and all requirements for use of ARPA funding. {00553342.1306-9905603} Page 2 of 10 Page 913 of 971 3.2 The CITY will be invoiced by the SUBRECIPIENT for eligible expenses on a reimbursement basis, and will disburse payments once per quarter unless there is a mutual written agreement otherwise (see Attachment "A" Scope of Services). Bills shall be submitted by the SUBRECIPIENT at least two weeks in advance and will be paid provided appropriate documentation and status and beneficiary reports are attached to the invoice. 3.3 Payment by the CITY shall be contingent upon timely receipt of accurate and complete reports and records required by this Agreement. 3.3 Prior to receipt of ARPA funds (through reimbursement), SUBRECIPIENT shall submit the following documentation: a. Quarterly Progress Report. b. All back up original documentation relating to the expenditures for which payment is sought. 3.4 Release of funds is subject to the approval of the ARPA Project Manager, Finance Director, and/or City Manager. ARTICLE IV TERM OF AGREEMENT The term of this Agreement shall be from March 1, 2023 through December 31, 2024. ARTICLE V SUSPENSION AND TERMINATION 5.1 Termination/Suspension of Payments/Agreement for Cause: If through any cause either party shall fail to fulfill in timely and proper manner its obligations under this Agreement, or if either party shall violate any of the covenants, agreements, or stipulations of this Agreement, either party shall thereupon have the right to terminate this Agreement or suspend payments in whole or in part by giving written notice of such termination or suspension of payments and specify the effective date of termination or suspension. If payments are withheld, the CITY shall specify in writing the actions that must be taken by the SUBRECIPIENT as a condition precedent to resumption of payments and shall specify a reasonable date for compliance. Sufficient cause for suspension of payments shall include, but not be limited to: a. ineffective or improper use of ARPA funds, b. failure to comply with the Statement of Work or terms of this Agreement, c. failure to submit reports as required, d. submittal of materially incorrect or incomplete reports, e. failure to comply with any additional conditions that may be imposed by the Treasury, OMB, or CITY. 5.2 Termination for Convenience of City: The CITY may terminate this Agreement without cause at any time by giving at least ten (10) working days' notice in writing to the {00553342.1306-9905603} Page 3 of 10 Page 914 of 971 SUBRECIPIENT. If this Agreement is terminated by the CITY as provided herein, the SUBRECIPIENT will be paid for allowable services performed under Article II of this Agreement until the effective date of the termination. 5.3 Termination for Convenience of the SUBRECIPIENT: At any time during the term of this Agreement, the SUBRECIPIENT may, at its option and for any reason, terminate this Agreement upon ten (10) working days written notice to the CITY. Upon termination, the SUBRECIPIENT shall be paid for services rendered pursuant to this Agreement through and including the date of termination. ARTICLE VI RECORDS AND REPORTS 6.1 The SUBRECIPIENT agrees to maintain and produce all business records related to use of the subaward grant funds and related business expenditures from the time of grant award through December 31, 2030. 6.2 The SUBRECIPIENT agrees to submit upon request other documentation which may later be determined necessary to assure compliance with this Agreement. ARTICLE VII PROGRAM INCOME The SUBRECIPIENT agrees to expend ARPA funds for the purpose outlined in Article I of this Agreement. It is not anticipated that program income shall be generated from this allocation. However, such income, if generated, may be retained by the SUBRECIPIENT and used for costs that are in addition to the approved costs of this agreement, provided that such costs specifically further the objectives of this agreement and are an eligible use under 31 CFR 35.6. Under no circumstances shall the SUBRECIPIENT use program income to pay for charges or expenses that are specifically not allowed pursuant to the terms of this agreement and applicable federal regulations or rules. The use of program income by the SUBRECIPIENT shall comply with the requirements set forth at 31 CFR 35.6 and must be pre -approved by the CITY. ARTICLE VIII PUBLICITY The SUBRECIPIENT shall ensure that all publicity, public relations, advertisements and signs, recognize the CITY and the ARPA Program for the support of all contracted activities. The use of the official CITY logo is permissible, but all signs used to publicize CITY contracted activities must be approved by the CITY prior to being posted. ARTICLE IX GENERAL CONDITIONS 9.1 Federal Office of Management and Budget Requirements: The SUBRECIPIENT shall comply with requirements established by the Federal Office of Management and Budget (OMB) concerning the Dun and Bradstreet Data Universal Numbering System (DUNS) and System for Award Management (SAM) database, as set forth on 2 CFR Part 200, and the Federal Accountability and Transparency Act, as set forth at 2 CFR Part 170. {00553342.1306-9905603} Page 4 of 10 Page 915 of 971 9.2 Federal, State, County and CITY Laws and Regulations: The SUBRECIPIENT shall comply with applicable provisions of applicable federal, state, County, and CITY laws, regulations and rules, including 2 CFR part 200, subpart E, OMB A-21, 2 CFR part 200, subpart F. The SUBRECIPIENT shall comply with Section 504 of the Rehabilitation Act of 1973, as amended, which prohibits discrimination on the basis of handicap; Title VI of the Civil Rights Act of 1964, as amended, which prohibits discrimination on the basis of race, color, or national origin; the Age Discrimination Act of 1975, as amended, which prohibits discrimination on the basis of age; Title VIII of the Civil Rights Act of 1968, as amended, and Executive Order 11063 which prohibits discrimination in housing on the basis of race, color, religion, sex, or national origin; Executive Order 11246, as amended which requires equal employment opportunity; and with the Energy Policy, amended and Conservation Act (Pub.L 94-163) which requires mandatory standards and policies relating to energy efficiency. The SUBRECIPIENT shall report its compliance with Section 504 of the Rehabilitation Act whenever so requested by the CITY. The SUBRECIPIENT shall comply with all applicable requirements of the Americans with Disabilities Act (ADA) of 1990, including, but not limited to, those provisions pertaining to employment, program services, transportation, communications, access to facilities, renovations, and new construction. 9.3 Other Program Requirements: The SUBRECIPIENT shall comply with all federal laws and regulations pertaining to 31 CFR 35.6 Treasury Department Interim Regulations, Treasury Department CSLFRF Frequently Asked Questions, and Treasury Department CSLFRF Compliance and Reporting Guidance. 9.4 Opportunities for Residents and Civil Rights Compliance: The SUBRECIPIENT agrees that no person shall on the grounds of race, color, national origin, religion, or sex be excluded from the benefits of, or be subjected to, discrimination under any activity carried out by the performance of this Agreement. To the greatest feasible extent, lower-income residents of the project areas shall be given opportunities for training and employment; and to the greatest feasible extent, eligible business concerns located in or owned in substantial part by persons residing in the project areas shall be awarded contracts in connection with the project. 9.5 Evaluation and Monitoring: The SUBRECIPIENT agrees that the CITY will carry out periodic monitoring and evaluation activities as determined necessary and that the continuation and/or renewal of this Agreement is dependent upon satisfactory evaluation conclusions. Such evaluations will be based on the terms of this Agreement, comparisons of planned versus actual progress relating to activity scheduling, budgets, audit reports, and output measures. The SUBRECIPIENT agrees to furnish upon request to the CITY and make copies of transcriptions of such records and information as is determined necessary by the CITY. The SUBRECIPIENT shall submit on a schedule set by the CITY and at other times upon request, information and status reports required by the CITY to enable the evaluation of said progress and to allow for completion of reports required of the CITY by the Treasury. The SUBRECIPIENT shall allow the CITY or the Treasury to monitor its agency on site. Such site visits may be scheduled or unscheduled as determined by the CITY or the Treasury. Ongoing monitoring of the SUBRECIPIENT will be done through quarterly reporting from the SUBRECIPIENT to the City. Reporting requirements will be based upon the {00553342.1306-9905603} Page 5 of 10 Page 916 of 971 SUBRECIPIENT'S risk assessment and in compliance with the CSLFRF Compliance and Reporting Guidance and Uniform Guidance 2 CFR Part 200. Monitoring will include identification of deficiencies in meeting stated requirements in Article II of this agreement and follow-up to ensure appropriate remediation. 9.6 Audits: Any non-federal agency and/or non-profit organization that expends $750,000 or more annually in federal awards shall have a single or program specific audit conducted accordance with 2 CFR 200, Subpart F. Non-federal agencies and/or nonprofit organizations that expend less than $750,000 annually in federal awards shall be exempt from an audit conducted in accordance with 2 CFR 200, Subpart F, although their records must be available for review. These agencies are required by the CITY to submit "reduced scope" audits (e.g., financial audits, performance audits). Each audit shall cover a time period of not more than 12 months and an audit shall be submitted covering each assisted period until all the assistance received from this agreement has been reported on. A copy of the audit report must be received by the CITY no later than six months following each audit period. The SUBRECIPIENT shall maintain all records in accordance with generally accepted accounting principles, procedures, and practices which shall sufficiently and properly reflect all revenues and expenditures of funds provided directly or indirectly by the CITY pursuant to the terms of this agreement. 9.7 Uniform Administrative Requirements: The SUBRECIPIENT agrees to maintain books, records and documents in accordance with accounting procedures and practices which sufficiently and properly reflect all expenditures of funds provided by the CITY under this Agreement. The SUBRECIPIENT is required to comply with the following uniform administrative requirements: a. Specific provisions of the uniform administrative requirements of 2 CFR 200, Subpart E — Cost Principles b. OMB 2021 Compliance Supplement Addendum Final V2 (Audit Requirements). c. Applicable provisions of 31 CFR 35.6. 9.8 Lobbying Prohibition: The SUBRECIPIENT shall certify that no federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal Agreement, the making of any federal grant, the making of any federal loan, the entering into of any cooperative Agreement, and the extension, continuation, renewal, amendment, or modification of any federal Agreement, grant, loan, or cooperative Agreement. The SUBRECIPIENT shall disclose to the CITY if any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this federal Agreement. 9.9 Insurance: The SUBRECIPIENT shall furnish to the CITY, c/o the ARPA Project Manager, certificate(s) of current insurance coverage. {00553342.1306-9905603} Page 6 of 10 Page 917 of 971 9.10 Property: All real property purchased in whole or in part with funds from this agreement with the CITY, or transferred to the SUBRECIPIENT after being purchased in whole or in part with funds from the CITY, shall be listed in the property records of the SUBRECIPIENT and shall include a legal description, size, date of acquisition, value at time of acquisition, present market value, present condition, address or location, owner's name if different from the SUBRECIPIENT, information on the transfer or disposition of the property, and map. The property records shall describe the programmatic purpose for which the property was acquired and identify the ARPA national objective that will be met. If the property was improved, the records shall describe the programmatic purpose for which the improvements were made and identify the ARPA national objective that will be met. All nonexpendable personal property purchased in whole or in part with funds from this agreement with the CITY shall be listed in the property records of the SUBRECIPIENT and shall include a description of the property, location, model number, manufacturer's serial number, date of acquisition, funding source, unit cost at the time of acquisition, present market value, property inventory number, information on its condition, and information on transfer, replacement, or disposition of the property. The SUBRECIPIENT shall obtain prior written approval from the CITY for the disposition of real property, expendable personal property, and nonexpendable personal property purchased in whole or in part with funds given to the SUBRECIPIENT pursuant to the terms of this agreement. The SUBRECIPIENT shall dispose of all such property in accordance with instructions from the CITY. Those instructions may require the return of all such property to the CITY. 9.12 Reversion of Assets: The SUBRECIPIENT shall return to the CITY, upon expiration or termination of this Agreement, all the assets owned or held as a result of this Agreement, including, but not limited to any funds on hand, any accounts receivable attributable to these funds, mortgages, notes, and other collateral and any overpayments due to unearned funds or costs disallowed pursuant to the terms of this Agreement that were disbursed to the SUBRECIPIENT by the CITY. The SUBRECIPIENT shall within 30 days of expiration or termination of this Agreement execute any and all documents as required by the CITY to effectuate the reversion of assets. Any funds not earned, as described and provided for in 2 CFR 200, Subpart E, by the SUBRECIPIENT prior to the expiration or termination of this Agreement shall be retained by the CITY. 9.13 Conflicts with Applicable Laws: If any provision of this agreement conflicts with any applicable law or regulation, only the conflicting provision shall be deemed by the parties hereto to be modified to be consistent with the law or regulation or to be deleted if modification is impossible. However, the obligations under this agreement, as modified, shall continue and all other provisions of this agreement shall remain in full force and effect. 9.14 Renegotiation or Modification: Modifications of provisions of the agreement shall be valid only when in writing and signed by duly authorized representatives of each party. The parties agree to renegotiate this agreement if the CITY determines, in its sole and absolute discretion, that federal, State and/or CITY revisions of any applicable laws or regulations, or increases or decreases in budget allocations make changes in this agreement necessary. {00553342.1306-9905603} Page 7 of 10 Page 918 of 971 9.15 Right to Waive: The CITY may, for good and sufficient cause, as determined by the CITY in its sole and absolute discretion, waive provisions in this agreement or seek to obtain such waiver from the appropriate authority. Waiver requests from the SUBRECIPIENT shall be in writing. Any waiver shall not be construed to be a modification of this agreement. 9.16 Disputes: In the event an unresolved dispute exists between the SUBRECIPIENT and the CITY, the CITY shall refer the questions, including the views of all interested parties and the recommendation of the CITY, to the City Manager for determination. The City Manager, or an authorized representative, will issue a determination within 30 calendar days of receipt and so advise the CITY and the SUBRECIPIENT, or in the event additional time is necessary, the CITY will notify the SUBRECIPIENT within the 30 -day period that additional time is necessary. The SUBRECIPIENT agrees that the City Manager's determination shall be final and binding on all parties. 9.17 Indemnification: SUBRECIPIENT acknowledges the waiver of sovereign Immunity for liability in tort contained in Florida Statutes Section 768.28, the State of Florida's partial waiver of sovereign immunity, and acknowledges that such statute permits actions at law to recover damages in tort for money damages up to the limits set forth in such statute for death, personal injury or damage to property caused by the negligent or wrongful acts or omissions of an employee acting within the scope of the employee's office or employment. To the extent and limits of §768.28, Florida Statutes, SUBRECIPIENT will indemnify and be responsible for and hold CITY harmless from and against any and all claims, damages, costs, and expenses caused by its negligent or intentional acts, any copyright violations or arising out of the breach of this contract. Notwithstanding the forgoing, this provision is not intended to serve or constitute (i) an agreement by SUBRECIPIENT to indemnify CITY for Its own negligence; (ii) a waiver of sovereign immunity by SUBRECIPIENT; (iii) a waiver of any defense SUBRECIPIENT may have under such statute; (iv) the consent of SUBRECIPIENT or its officers, employees to be sued; or (v) a waiver of sovereign immunity of the State of Florida beyond the waiver provided in Section 768.28 of the Florida Statutes. If SUBRECIPIENT uses a subcontractor, SUBRECIPIENT shall, by written contract, require its subcontractors to agree to the requirements and obligations of this Section 9.17. 9.18 Public Records: SUBRECIPIENT shall comply with all public records laws in accordance with Chapter 119, Fla. Stat. In accordance with state law, SUBRECIPIENT agrees to: a) Keep and maintain all records that ordinarily and necessarily would be required by the CITY. b) Provide the public with access to public records on the same terms and conditions that the CITY would provide for the records and at a cost that does not exceed the costs provided in Chapter 119, Fla. Stat. or as otherwise provided by law. C) Ensure that public records that are exempt or confidential and exempt from public records disclosure are not disclosed except as authorized by law. d) Meet all requirements for retaining public records and transfer, at no cost, to the CITY all records in possession of the SUBRECIPIENT at the termination of the contract and destroy any public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored {00553342.1 306-9905603} Page 8 of 10 Page 919 of 971 electronically must be provided to the CITY in a format that is compatible with the information technology systems of the CITY. All records shall be transferred to the CITY prior to final payment being made to the SUBRECIPIENT. e) If SUBRECIPIENT does not comply with this section, the CITY shall enforce the contract provisions in accordance with the contract and may unilaterally cancel this contract in accordance with state law. 9.19 Inspector General: SUBRECIPIENT is aware that the Inspector General of Palm Beach County has the authority to investigate and audit matters relating to the negotiation and performance of this Agreement, and may demand and obtain records and testimony from SUBRECIPIENT. SUBRECIPIENT understands and agrees that in addition to all other remedies and consequences provided by law, the failure of SUBRECIPIENT to fully cooperate with the Inspector General when requested may be deemed by the CITY to be a material breach of this Agreement. IN WITNESS OF THE FOREGOING, the parties have set their hands and seals on this day of 2023. WITNESSES: THE SCHOOL BOARD OF PALM BEACH COUNTY on behalf of ROLLING GREEN ELEMENTARY M Print Print STATE OF FLORIDA COUNTY OF PALM BEACH Title The foregoing instrument was acknowledged before me this _ day of , 20237 by Personally Known _ OR Produced Identification _Type of Identification Produced Seal NOTARY PUBLIC Signature Print {00553342.1306-9905603} Page 9 of 10 Page 920 of 971 ATTEST: City Clerk CITY OF BOYNTON BEACH, FLORIDA Mayor Approved as to form: City Attorney {00553342.1306-9905603} Page 10 of 10 Page 921 of 971 ARPA SUBRECIPIENT GRANT AGREEMENT between CITY OF BOYNTON BEACH and THE SCHOOL BOARD OF PALM BEACH COUNTY on behalf of GALAXY E3 ELEMENTARY THIS AGREEMENT entered into this day of , 2023 is between the CITY OF BOYNTON BEACH, a Florida municipal corporation, hereinafter referred to as "CITY," and THE SCHOOL BOARD OF PALM BEACH COUNTY on behalf of GALAXY E3 ELEMENTARY hereinafter referred to as "the SUBRECIPIENT," having its principal office at 3366 Forest Hill Blvd. A 323, West Palm Beach, FL 33406 and its Federal Tax Identification Number as 85-8013897253C-1. WITNESSETH: WHEREAS, the CITY has entered into an Agreement with the U.S. Treasury Department for Coronavirus State and Local Fiscal Recovery Funds (CSLFRF) for the execution and implementation the American Rescue Plan Act (ARPA) in the CITY, pursuant to the Interim Final Rule of May 17, 2021, and the Final Rule, effective date April 1, 2022 (as amended); and WHEREAS, the CITY desires to engage the SUBRECIPIENT to implement an element of the Boynton Beach ARPA Master Spending Plan; NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, receipt of which is hereby acknowledged, the parties hereto agree as follows: ARTICLE I DEFINITION AND PURPOSE Definitions 1.1 "ARPA" means American Rescue Plan Act. 1.2 "Treasury" means the U.S. Department of Treasury. 1.3 "OMB" means the Federal Office of Management and Budget. 1.4 "CFR" means the Code of Federal Regulations. 1.5 "2 CFR" refers to the Section of the Code of Federal Regulations pertaining to Grants and Agreements. 1.6 "CSLFRF" means Coronavirus State and Local Fiscal Recovery Funds (also referred to as ARPA funds). 1.7 "31 CFR 35.6" refers to the Section of the Code of Federal Regulations pertaining to the Eligible Uses for Part 35, Subpart A — Coronavirus State and Local Fiscal Recovery Funds. {00553339.1306-9905603} Page 1 of 10 Page 922 of 971 1.8 "Program Income" means gross income received directly generated or earned from the use of ARPA funds. Program Income includes, but is not limited to, interest earned on advances of federal funds or royalties received as a result of patents or copyrights produced under this grant. 1.9 "Property" means any purchase of equipment or real property with CSLFRF funds must be consistent with the Uniform Guidance at 2 CFR Part 200, Subpart D. Equipment and real property acquired under this program must be used for the originally authorized purpose in project budget detail. a. "Real Property" means land, land improvements, structures, fixtures and appurtenances thereto, excluding movable machinery and equipment. b. "Personal Property" means personal property of any kind except real property. c. "Nonexpendable Personal Property" means tangible (i.e., physical) personal property of a non -consumable nature, with a value of $500 or more per item, with a normal expected life of one or more years, not fixed in place, and not an integral part of a structure, facility or another piece of equipment. d. "Expendable Personal Property" means all tangible personal property other than nonexpendable property. 1.10 "Subrecipient" means an entity, including but not limited to non -Federal entities, that receives a subaward from a pass-through entity to carry out part of a Federal award; but does not include an individual that is a beneficiary of such award. A subrecipient may also be a recipient of other Federal awards directly from a Federal awarding agency. 2. Purpose The purpose of this Agreement is to state the covenants and conditions under which the SUBRECIPIENT will implement the Statement of Work set forth in Article II of this agreement. ARTICLE II FUNDING AND BUDGET The maximum amount payable by the CITY under this Agreement will be One Hundred Thousand Dollars and 00/100 ($100,000.00). The SUBRECIPIENT shall carry out the activities specified in Attachment A, "Scope of Services." This award is a subaward of CSLFRF funds and the SUBRECIPIENT must comply with any and all requirements for use of CSLFR funds and reporting requirements for expenditures of CSLFRF funds. ARTICLE III FUNDING AND METHOD OF PAYMENT 3.1 The maximum amount payable by the CITY under this Agreement will be One Hundred Thousand Dollars and 00/100 ($100,000.00). It is expressly understood and agreed by the Parties that the funds contemplated by this Agreement originated from federal ARPA funds and funding is contingent upon approval and funding by the Boynton Beach City Commission. SUBRECIPIENT agrees to reimburse CITY, in full, all funds remitted to SUBRECIPIENT by CITY that do not comply with any and all requirements for use of ARPA funding. {00553339.1306-9905603} Page 2 of 10 Page 923 of 971 3.2 The CITY will be invoiced by the SUBRECIPIENT for eligible expenses on a reimbursement basis, and will disburse payments once per quarter unless there is a mutual written agreement otherwise (see Attachment "A" Scope of Services). Bills shall be submitted by the SUBRECIPIENT at least two weeks in advance and will be paid provided appropriate documentation and status and beneficiary reports are attached to the invoice. 3.3 Payment by the CITY shall be contingent upon timely receipt of accurate and complete reports and records required by this Agreement. 3.3 Prior to receipt of ARPA funds (through reimbursement), SUBRECIPIENT shall submit the following documentation: a. Quarterly Progress Report. b. All back up original documentation relating to the expenditures for which payment is sought. 3.4 Release of funds is subject to the approval of the ARPA Project Manager, Finance Director, and/or City Manager. ARTICLE IV TERM OF AGREEMENT The term of this Agreement shall be from March 1, 2023 through December 31, 2024. ARTICLE V SUSPENSION AND TERMINATION 5.1 Termination/Suspension of Payments/Agreement for Cause: If through any cause either party shall fail to fulfill in timely and proper manner its obligations under this Agreement, or if either party shall violate any of the covenants, agreements, or stipulations of this Agreement, either party shall thereupon have the right to terminate this Agreement or suspend payments in whole or in part by giving written notice of such termination or suspension of payments and specify the effective date of termination or suspension. If payments are withheld, the CITY shall specify in writing the actions that must be taken by the SUBRECIPIENT as a condition precedent to resumption of payments and shall specify a reasonable date for compliance. Sufficient cause for suspension of payments shall include, but not be limited to: a. ineffective or improper use of ARPA funds, b. failure to comply with the Statement of Work or terms of this Agreement, c. failure to submit reports as required, d. submittal of materially incorrect or incomplete reports, e. failure to comply with any additional conditions that may be imposed by the Treasury, OMB, or CITY. 5.2 Termination for Convenience of City: The CITY may terminate this Agreement without cause at any time by giving at least ten (10) working days' notice in writing to the {00553339.1306-9905603} Page 3 of 10 Page 924 of 971 SUBRECIPIENT. If this Agreement is terminated by the CITY as provided herein, the SUBRECIPIENT will be paid for allowable services performed under Article II of this Agreement until the effective date of the termination. 5.3 Termination for Convenience of the SUBRECIPIENT: At any time during the term of this Agreement, the SUBRECIPIENT may, at its option and for any reason, terminate this Agreement upon ten (10) working days written notice to the CITY. Upon termination, the SUBRECIPIENT shall be paid for services rendered pursuant to this Agreement through and including the date of termination. ARTICLE VI RECORDS AND REPORTS 6.1 The SUBRECIPIENT agrees to maintain and produce all business records related to use of the subaward grant funds and related business expenditures from the time of grant award through December 31, 2030. 6.2 The SUBRECIPIENT agrees to submit upon request other documentation which may later be determined necessary to assure compliance with this Agreement. ARTICLE VII PROGRAM INCOME The SUBRECIPIENT agrees to expend ARPA funds for the purpose outlined in Article I of this Agreement. It is not anticipated that program income shall be generated from this allocation. However, such income, if generated, may be retained by the SUBRECIPIENT and used for costs that are in addition to the approved costs of this agreement, provided that such costs specifically further the objectives of this agreement and are an eligible use under 31 CFR 35.6. Under no circumstances shall the SUBRECIPIENT use program income to pay for charges or expenses that are specifically not allowed pursuant to the terms of this agreement and applicable federal regulations or rules. The use of program income by the SUBRECIPIENT shall comply with the requirements set forth at 31 CFR 35.6 and must be pre -approved by the CITY. ARTICLE VIII PUBLICITY The SUBRECIPIENT shall ensure that all publicity, public relations, advertisements and signs, recognize the CITY and the ARPA Program for the support of all contracted activities. The use of the official CITY logo is permissible, but all signs used to publicize CITY contracted activities must be approved by the CITY prior to being posted. ARTICLE IX GENERAL CONDITIONS 9.1 Federal Office of Management and Budget Requirements: The SUBRECIPIENT shall comply with requirements established by the Federal Office of Management and Budget (OMB) concerning the Dun and Bradstreet Data Universal Numbering System (DUNS) and System for Award Management (SAM) database, as set forth on 2 CFR Part 200, and the Federal Accountability and Transparency Act, as set forth at 2 CFR Part 170. {00553339.1306-9905603} Page 4 of 10 Page 925 of 971 9.2 Federal, State, County and CITY Laws and Regulations: The SUBRECIPIENT shall comply with applicable provisions of applicable federal, state, County, and CITY laws, regulations and rules, including 2 CFR part 200, subpart E, OMB A-21, 2 CFR part 200, subpart F. The SUBRECIPIENT shall comply with Section 504 of the Rehabilitation Act of 1973, as amended, which prohibits discrimination on the basis of handicap; Title VI of the Civil Rights Act of 1964, as amended, which prohibits discrimination on the basis of race, color, or national origin; the Age Discrimination Act of 1975, as amended, which prohibits discrimination on the basis of age; Title VIII of the Civil Rights Act of 1968, as amended, and Executive Order 11063 which prohibits discrimination in housing on the basis of race, color, religion, sex, or national origin; Executive Order 11246, as amended which requires equal employment opportunity; and with the Energy Policy, amended and Conservation Act (Pub.L 94-163) which requires mandatory standards and policies relating to energy efficiency. The SUBRECIPIENT shall report its compliance with Section 504 of the Rehabilitation Act whenever so requested by the CITY. The SUBRECIPIENT shall comply with all applicable requirements of the Americans with Disabilities Act (ADA) of 1990, including, but not limited to, those provisions pertaining to employment, program services, transportation, communications, access to facilities, renovations, and new construction. 9.3 Other Program Requirements: The SUBRECIPIENT shall comply with all federal laws and regulations pertaining to 31 CFR 35.6 Treasury Department Interim Regulations, Treasury Department CSLFRF Frequently Asked Questions, and Treasury Department CSLFRF Compliance and Reporting Guidance. 9.4 Opportunities for Residents and Civil Rights Compliance: The SUBRECIPIENT agrees that no person shall on the grounds of race, color, national origin, religion, or sex be excluded from the benefits of, or be subjected to, discrimination under any activity carried out by the performance of this Agreement. To the greatest feasible extent, lower-income residents of the project areas shall be given opportunities for training and employment; and to the greatest feasible extent, eligible business concerns located in or owned in substantial part by persons residing in the project areas shall be awarded contracts in connection with the project. 9.5 Evaluation and Monitoring: The SUBRECIPIENT agrees that the CITY will carry out periodic monitoring and evaluation activities as determined necessary and that the continuation and/or renewal of this Agreement is dependent upon satisfactory evaluation conclusions. Such evaluations will be based on the terms of this Agreement, comparisons of planned versus actual progress relating to activity scheduling, budgets, audit reports, and output measures. The SUBRECIPIENT agrees to furnish upon request to the CITY and make copies of transcriptions of such records and information as is determined necessary by the CITY. The SUBRECIPIENT shall submit on a schedule set by the CITY and at other times upon request, information and status reports required by the CITY to enable the evaluation of said progress and to allow for completion of reports required of the CITY by the Treasury. The SUBRECIPIENT shall allow the CITY or the Treasury to monitor its agency on site. Such site visits may be scheduled or unscheduled as determined by the CITY or the Treasury. Ongoing monitoring of the SUBRECIPIENT will be done through quarterly reporting from the SUBRECIPIENT to the City. Reporting requirements will be based upon the {00553339.1306-9905603} Page 5 of 10 Page 926 of 971 SUBRECIPIENT'S risk assessment and in compliance with the CSLFRF Compliance and Reporting Guidance and Uniform Guidance 2 CFR Part 200. Monitoring will include identification of deficiencies in meeting stated requirements in Article II of this agreement and follow-up to ensure appropriate remediation. 9.6 Audits: Any non-federal agency and/or non-profit organization that expends $750,000 or more annually in federal awards shall have a single or program specific audit conducted accordance with 2 CFR 200, Subpart F. Non-federal agencies and/or nonprofit organizations that expend less than $750,000 annually in federal awards shall be exempt from an audit conducted in accordance with 2 CFR 200, Subpart F, although their records must be available for review. These agencies are required by the CITY to submit "reduced scope" audits (e.g., financial audits, performance audits). Each audit shall cover a time period of not more than 12 months and an audit shall be submitted covering each assisted period until all the assistance received from this agreement has been reported on. A copy of the audit report must be received by the CITY no later than six months following each audit period. The SUBRECIPIENT shall maintain all records in accordance with generally accepted accounting principles, procedures, and practices which shall sufficiently and properly reflect all revenues and expenditures of funds provided directly or indirectly by the CITY pursuant to the terms of this agreement. 9.7 Uniform Administrative Requirements: The SUBRECIPIENT agrees to maintain books, records and documents in accordance with accounting procedures and practices which sufficiently and properly reflect all expenditures of funds provided by the CITY under this Agreement. The SUBRECIPIENT is required to comply with the following uniform administrative requirements: a. Specific provisions of the uniform administrative requirements of 2 CFR 200, Subpart E — Cost Principles b. OMB 2021 Compliance Supplement Addendum Final V2 (Audit Requirements). c. Applicable provisions of 31 CFR 35.6. 9.8 Lobbying Prohibition: The SUBRECIPIENT shall certify that no federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal Agreement, the making of any federal grant, the making of any federal loan, the entering into of any cooperative Agreement, and the extension, continuation, renewal, amendment, or modification of any federal Agreement, grant, loan, or cooperative Agreement. The SUBRECIPIENT shall disclose to the CITY if any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this federal Agreement. 9.9 Insurance: The SUBRECIPIENT shall furnish to the CITY, c/o the ARPA Project Manager, certificate(s) of current insurance coverage. {00553339.1306-9905603} Page 6 of 10 Page 927 of 971 9.10 Property: All real property purchased in whole or in part with funds from this agreement with the CITY, or transferred to the SUBRECIPIENT after being purchased in whole or in part with funds from the CITY, shall be listed in the property records of the SUBRECIPIENT and shall include a legal description, size, date of acquisition, value at time of acquisition, present market value, present condition, address or location, owner's name if different from the SUBRECIPIENT, information on the transfer or disposition of the property, and map. The property records shall describe the programmatic purpose for which the property was acquired and identify the ARPA national objective that will be met. If the property was improved, the records shall describe the programmatic purpose for which the improvements were made and identify the ARPA national objective that will be met. All nonexpendable personal property purchased in whole or in part with funds from this agreement with the CITY shall be listed in the property records of the SUBRECIPIENT and shall include a description of the property, location, model number, manufacturer's serial number, date of acquisition, funding source, unit cost at the time of acquisition, present market value, property inventory number, information on its condition, and information on transfer, replacement, or disposition of the property. The SUBRECIPIENT shall obtain prior written approval from the CITY for the disposition of real property, expendable personal property, and nonexpendable personal property purchased in whole or in part with funds given to the SUBRECIPIENT pursuant to the terms of this agreement. The SUBRECIPIENT shall dispose of all such property in accordance with instructions from the CITY. Those instructions may require the return of all such property to the CITY. 9.12 Reversion of Assets: The SUBRECIPIENT shall return to the CITY, upon expiration or termination of this Agreement, all the assets owned or held as a result of this Agreement, including, but not limited to any funds on hand, any accounts receivable attributable to these funds, mortgages, notes, and other collateral and any overpayments due to unearned funds or costs disallowed pursuant to the terms of this Agreement that were disbursed to the SUBRECIPIENT by the CITY. The SUBRECIPIENT shall within 30 days of expiration or termination of this Agreement execute any and all documents as required by the CITY to effectuate the reversion of assets. Any funds not earned, as described and provided for in 2 CFR 200, Subpart E, by the SUBRECIPIENT prior to the expiration or termination of this Agreement shall be retained by the CITY. 9.13 Conflicts with Applicable Laws: If any provision of this agreement conflicts with any applicable law or regulation, only the conflicting provision shall be deemed by the parties hereto to be modified to be consistent with the law or regulation or to be deleted if modification is impossible. However, the obligations under this agreement, as modified, shall continue and all other provisions of this agreement shall remain in full force and effect. 9.14 Renegotiation or Modification: Modifications of provisions of the agreement shall be valid only when in writing and signed by duly authorized representatives of each party. The parties agree to renegotiate this agreement if the CITY determines, in its sole and absolute discretion, that federal, State and/or CITY revisions of any applicable laws or regulations, or increases or decreases in budget allocations make changes in this agreement necessary. {00553339.1306-9905603} Page 7 of 10 Page 928 of 971 9.15 Right to Waive: The CITY may, for good and sufficient cause, as determined by the CITY in its sole and absolute discretion, waive provisions in this agreement or seek to obtain such waiver from the appropriate authority. Waiver requests from the SUBRECIPIENT shall be in writing. Any waiver shall not be construed to be a modification of this agreement. 9.16 Disputes: In the event an unresolved dispute exists between the SUBRECIPIENT and the CITY, the CITY shall refer the questions, including the views of all interested parties and the recommendation of the CITY, to the City Manager for determination. The City Manager, or an authorized representative, will issue a determination within 30 calendar days of receipt and so advise the CITY and the SUBRECIPIENT, or in the event additional time is necessary, the CITY will notify the SUBRECIPIENT within the 30 -day period that additional time is necessary. The SUBRECIPIENT agrees that the City Manager's determination shall be final and binding on all parties. 9.17 Indemnification: SUBRECIPIENT acknowledges the waiver of sovereign Immunity for liability in tort contained in Florida Statutes Section 768.28, the State of Florida's partial waiver of sovereign immunity, and acknowledges that such statute permits actions at law to recover damages in tort for money damages up to the limits set forth in such statute for death, personal injury or damage to property caused by the negligent or wrongful acts or omissions of an employee acting within the scope of the employee's office or employment. To the extent and limits of §768.28, Florida Statutes, SUBRECIPIENT will indemnify and be responsible for and hold CITY harmless from and against any and all claims, damages, costs, and expenses caused by its negligent or intentional acts, any copyright violations or arising out of the breach of this contract. Notwithstanding the forgoing, this provision is not intended to serve or constitute (i) an agreement by SUBRECIPIENT to indemnify CITY for Its own negligence; (ii) a waiver of sovereign immunity by SUBRECIPIENT; (iii) a waiver of any defense SUBRECIPIENT may have under such statute; (iv) the consent of SUBRECIPIENT or its officers, employees to be sued; or (v) a waiver of sovereign immunity of the State of Florida beyond the waiver provided in Section 768.28 of the Florida Statutes. If SUBRECIPIENT uses a subcontractor, SUBRECIPIENT shall, by written contract, require its subcontractors to agree to the requirements and obligations of this Section 9.17. 9.18 Public Records: SUBRECIPIENT shall comply with all public records laws in accordance with Chapter 119, Fla. Stat. In accordance with state law, SUBRECIPIENT agrees to: a) Keep and maintain all records that ordinarily and necessarily would be required by the CITY. b) Provide the public with access to public records on the same terms and conditions that the CITY would provide for the records and at a cost that does not exceed the costs provided in Chapter 119, Fla. Stat. or as otherwise provided by law. C) Ensure that public records that are exempt or confidential and exempt from public records disclosure are not disclosed except as authorized by law. d) Meet all requirements for retaining public records and transfer, at no cost, to the CITY all records in possession of the SUBRECIPIENT at the termination of the contract and destroy any public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored {00553339.1 306-9905603} Page 8 of 10 Page 929 of 971 electronically must be provided to the CITY in a format that is compatible with the information technology systems of the CITY. All records shall be transferred to the CITY prior to final payment being made to the SUBRECIPIENT. e) If SUBRECIPIENT does not comply with this section, the CITY shall enforce the contract provisions in accordance with the contract and may unilaterally cancel this contract in accordance with state law. 9.19 Inspector General: SUBRECIPIENT is aware that the Inspector General of Palm Beach County has the authority to investigate and audit matters relating to the negotiation and performance of this Agreement, and may demand and obtain records and testimony from SUBRECIPIENT. SUBRECIPIENT understands and agrees that in addition to all other remedies and consequences provided by law, the failure of SUBRECIPIENT to fully cooperate with the Inspector General when requested may be deemed by the CITY to be a material breach of this Agreement. IN WITNESS OF THE FOREGOING, the parties have set their hands and seals on this day of 2023. WITNESSES: THE SCHOOL BOARD OF PALM BEACH COUNTY on behalf of GALAXY E3 ELEMENTARY Print Title Print STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this _ day of , 20237 by Personally Known — OR Produced Identification _Type of Identification Produced Seal NOTARY PUBLIC Signature Print {00553339.1 306-9905603} Page 9 of 10 Page 930 of 971 ATTEST: City Clerk CITY OF BOYNTON BEACH, FLORIDA Mayor Approved as to form: City Attorney {00553339.1306-9905603} Page 10 of 10 Page 931 of 971 ARPA SUBRECIPIENT GRANT AGREEMENT between CITY OF BOYNTON BEACH and THE SCHOOL BOARD OF PALM BEACH COUNTY on behalf of CONGRESS MIDDLE THIS AGREEMENT entered into this day of , 2023 is between the CITY OF BOYNTON BEACH, a Florida municipal corporation, hereinafter referred to as "CITY," and THE SCHOOL BOARD OF PALM BEACH COUNTY on behalf of CONGRESS MIDDLE hereinafter referred to as "the SUBRECIPIENT," having its principal office at 3366 Forest Hill Blvd. A 323, West Palm Beach, FL 33406 and its Federal Tax Identification Number as 85-8013897253C-1. WITNESSETH: WHEREAS, the CITY has entered into an Agreement with the U.S. Treasury Department for Coronavirus State and Local Fiscal Recovery Funds (CSLFRF) for the execution and implementation the American Rescue Plan Act (ARPA) in the CITY, pursuant to the Interim Final Rule of May 17, 2021, and the Final Rule, effective date April 1, 2022 (as amended); and WHEREAS, the CITY desires to engage the SUBRECIPIENT to implement an element of the Boynton Beach ARPA Master Spending Plan; NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, receipt of which is hereby acknowledged, the parties hereto agree as follows: ARTICLE I DEFINITION AND PURPOSE Definitions 1.1 "ARPA" means American Rescue Plan Act. 1.2 "Treasury" means the U.S. Department of Treasury. 1.3 "OMB" means the Federal Office of Management and Budget. 1.4 "CFR" means the Code of Federal Regulations. 1.5 "2 CFR" refers to the Section of the Code of Federal Regulations pertaining to Grants and Agreements. 1.6 "CSLFRF" means Coronavirus State and Local Fiscal Recovery Funds (also referred to as ARPA funds). 1.7 "31 CFR 35.6" refers to the Section of the Code of Federal Regulations pertaining to the Eligible Uses for Part 35, Subpart A — Coronavirus State and Local Fiscal Recovery Funds. {00553343.1306-9905603} Page 1 of 10 Page 932 of 971 1.8 "Program Income" means gross income received directly generated or earned from the use of ARPA funds. Program Income includes, but is not limited to, interest earned on advances of federal funds or royalties received as a result of patents or copyrights produced under this grant. 1.9 "Property" means any purchase of equipment or real property with CSLFRF funds must be consistent with the Uniform Guidance at 2 CFR Part 200, Subpart D. Equipment and real property acquired under this program must be used for the originally authorized purpose in project budget detail. a. "Real Property" means land, land improvements, structures, fixtures and appurtenances thereto, excluding movable machinery and equipment. b. "Personal Property" means personal property of any kind except real property. c. "Nonexpendable Personal Property" means tangible (i.e., physical) personal property of a non -consumable nature, with a value of $500 or more per item, with a normal expected life of one or more years, not fixed in place, and not an integral part of a structure, facility or another piece of equipment. d. "Expendable Personal Property" means all tangible personal property other than nonexpendable property. 1.10 "Subrecipient" means an entity, including but not limited to non -Federal entities, that receives a subaward from a pass-through entity to carry out part of a Federal award; but does not include an individual that is a beneficiary of such award. A subrecipient may also be a recipient of other Federal awards directly from a Federal awarding agency. 2. Purpose The purpose of this Agreement is to state the covenants and conditions under which the SUBRECIPIENT will implement the Statement of Work set forth in Article II of this agreement. ARTICLE II FUNDING AND BUDGET The maximum amount payable by the CITY under this Agreement will be One Hundred Thousand Dollars and 00/100 ($100,000.00). The SUBRECIPIENT shall carry out the activities specified in Attachment A, "Scope of Services." This award is a subaward of CSLFRF funds and the SUBRECIPIENT must comply with any and all requirements for use of CSLFR funds and reporting requirements for expenditures of CSLFRF funds. ARTICLE III FUNDING AND METHOD OF PAYMENT 3.1 The maximum amount payable by the CITY under this Agreement will be One Hundred Thousand Dollars and 00/100 ($100,000.00). It is expressly understood and agreed by the Parties that the funds contemplated by this Agreement originated from federal ARPA funds and funding is contingent upon approval and funding by the Boynton Beach City Commission. SUBRECIPIENT agrees to reimburse CITY, in full, all funds remitted to SUBRECIPIENT by CITY that do not comply with any and all requirements for use of ARPA funding. {00553343.1306-9905603} Page 2 of 10 Page 933 of 971 3.2 The CITY will be invoiced by the SUBRECIPIENT for eligible expenses on a reimbursement basis, and will disburse payments once per quarter unless there is a mutual written agreement otherwise (see Attachment "A" Scope of Services). Bills shall be submitted by the SUBRECIPIENT at least two weeks in advance and will be paid provided appropriate documentation and status and beneficiary reports are attached to the invoice. 3.3 Payment by the CITY shall be contingent upon timely receipt of accurate and complete reports and records required by this Agreement. 3.3 Prior to receipt of ARPA funds (through reimbursement), SUBRECIPIENT shall submit the following documentation: a. Quarterly Progress Report. b. All back up original documentation relating to the expenditures for which payment is sought. 3.4 Release of funds is subject to the approval of the ARPA Project Manager, Finance Director, and/or City Manager. ARTICLE IV TERM OF AGREEMENT The term of this Agreement shall be from March 1, 2023 through December 31, 2024. ARTICLE V SUSPENSION AND TERMINATION 5.1 Termination/Suspension of Payments/Agreement for Cause: If through any cause either party shall fail to fulfill in timely and proper manner its obligations under this Agreement, or if either party shall violate any of the covenants, agreements, or stipulations of this Agreement, either party shall thereupon have the right to terminate this Agreement or suspend payments in whole or in part by giving written notice of such termination or suspension of payments and specify the effective date of termination or suspension. If payments are withheld, the CITY shall specify in writing the actions that must be taken by the SUBRECIPIENT as a condition precedent to resumption of payments and shall specify a reasonable date for compliance. Sufficient cause for suspension of payments shall include, but not be limited to: a. ineffective or improper use of ARPA funds, b. failure to comply with the Statement of Work or terms of this Agreement, c. failure to submit reports as required, d. submittal of materially incorrect or incomplete reports, e. failure to comply with any additional conditions that may be imposed by the Treasury, OMB, or CITY. 5.2 Termination for Convenience of City: The CITY may terminate this Agreement without cause at any time by giving at least ten (10) working days' notice in writing to the {00553343.1306-9905603} Page 3 of 10 Page 934 of 971 SUBRECIPIENT. If this Agreement is terminated by the CITY as provided herein, the SUBRECIPIENT will be paid for allowable services performed under Article II of this Agreement until the effective date of the termination. 5.3 Termination for Convenience of the SUBRECIPIENT: At any time during the term of this Agreement, the SUBRECIPIENT may, at its option and for any reason, terminate this Agreement upon ten (10) working days written notice to the CITY. Upon termination, the SUBRECIPIENT shall be paid for services rendered pursuant to this Agreement through and including the date of termination. ARTICLE VI RECORDS AND REPORTS 6.1 The SUBRECIPIENT agrees to maintain and produce all business records related to use of the subaward grant funds and related business expenditures from the time of grant award through December 31, 2030. 6.2 The SUBRECIPIENT agrees to submit upon request other documentation which may later be determined necessary to assure compliance with this Agreement. ARTICLE VII PROGRAM INCOME The SUBRECIPIENT agrees to expend ARPA funds for the purpose outlined in Article I of this Agreement. It is not anticipated that program income shall be generated from this allocation. However, such income, if generated, may be retained by the SUBRECIPIENT and used for costs that are in addition to the approved costs of this agreement, provided that such costs specifically further the objectives of this agreement and are an eligible use under 31 CFR 35.6. Under no circumstances shall the SUBRECIPIENT use program income to pay for charges or expenses that are specifically not allowed pursuant to the terms of this agreement and applicable federal regulations or rules. The use of program income by the SUBRECIPIENT shall comply with the requirements set forth at 31 CFR 35.6 and must be pre -approved by the CITY. ARTICLE VIII PUBLICITY The SUBRECIPIENT shall ensure that all publicity, public relations, advertisements and signs, recognize the CITY and the ARPA Program for the support of all contracted activities. The use of the official CITY logo is permissible, but all signs used to publicize CITY contracted activities must be approved by the CITY prior to being posted. ARTICLE IX GENERAL CONDITIONS 9.1 Federal Office of Management and Budget Requirements: The SUBRECIPIENT shall comply with requirements established by the Federal Office of Management and Budget (OMB) concerning the Dun and Bradstreet Data Universal Numbering System (DUNS) and System for Award Management (SAM) database, as set forth on 2 CFR Part 200, and the Federal Accountability and Transparency Act, as set forth at 2 CFR Part 170. {00553343.1306-9905603} Page 4 of 10 Page 935 of 971 9.2 Federal, State, County and CITY Laws and Regulations: The SUBRECIPIENT shall comply with applicable provisions of applicable federal, state, County, and CITY laws, regulations and rules, including 2 CFR part 200, subpart E, OMB A-21, 2 CFR part 200, subpart F. The SUBRECIPIENT shall comply with Section 504 of the Rehabilitation Act of 1973, as amended, which prohibits discrimination on the basis of handicap; Title VI of the Civil Rights Act of 1964, as amended, which prohibits discrimination on the basis of race, color, or national origin; the Age Discrimination Act of 1975, as amended, which prohibits discrimination on the basis of age; Title VIII of the Civil Rights Act of 1968, as amended, and Executive Order 11063 which prohibits discrimination in housing on the basis of race, color, religion, sex, or national origin; Executive Order 11246, as amended which requires equal employment opportunity; and with the Energy Policy, amended and Conservation Act (Pub.L 94-163) which requires mandatory standards and policies relating to energy efficiency. The SUBRECIPIENT shall report its compliance with Section 504 of the Rehabilitation Act whenever so requested by the CITY. The SUBRECIPIENT shall comply with all applicable requirements of the Americans with Disabilities Act (ADA) of 1990, including, but not limited to, those provisions pertaining to employment, program services, transportation, communications, access to facilities, renovations, and new construction. 9.3 Other Program Requirements: The SUBRECIPIENT shall comply with all federal laws and regulations pertaining to 31 CFR 35.6 Treasury Department Interim Regulations, Treasury Department CSLFRF Frequently Asked Questions, and Treasury Department CSLFRF Compliance and Reporting Guidance. 9.4 Opportunities for Residents and Civil Rights Compliance: The SUBRECIPIENT agrees that no person shall on the grounds of race, color, national origin, religion, or sex be excluded from the benefits of, or be subjected to, discrimination under any activity carried out by the performance of this Agreement. To the greatest feasible extent, lower-income residents of the project areas shall be given opportunities for training and employment; and to the greatest feasible extent, eligible business concerns located in or owned in substantial part by persons residing in the project areas shall be awarded contracts in connection with the project. 9.5 Evaluation and Monitoring: The SUBRECIPIENT agrees that the CITY will carry out periodic monitoring and evaluation activities as determined necessary and that the continuation and/or renewal of this Agreement is dependent upon satisfactory evaluation conclusions. Such evaluations will be based on the terms of this Agreement, comparisons of planned versus actual progress relating to activity scheduling, budgets, audit reports, and output measures. The SUBRECIPIENT agrees to furnish upon request to the CITY and make copies of transcriptions of such records and information as is determined necessary by the CITY. The SUBRECIPIENT shall submit on a schedule set by the CITY and at other times upon request, information and status reports required by the CITY to enable the evaluation of said progress and to allow for completion of reports required of the CITY by the Treasury. The SUBRECIPIENT shall allow the CITY or the Treasury to monitor its agency on site. Such site visits may be scheduled or unscheduled as determined by the CITY or the Treasury. Ongoing monitoring of the SUBRECIPIENT will be done through quarterly reporting from the SUBRECIPIENT to the City. Reporting requirements will be based upon the {00553343.1306-9905603} Page 5 of 10 Page 936 of 971 SUBRECIPIENT'S risk assessment and in compliance with the CSLFRF Compliance and Reporting Guidance and Uniform Guidance 2 CFR Part 200. Monitoring will include identification of deficiencies in meeting stated requirements in Article II of this agreement and follow-up to ensure appropriate remediation. 9.6 Audits: Any non-federal agency and/or non-profit organization that expends $750,000 or more annually in federal awards shall have a single or program specific audit conducted accordance with 2 CFR 200, Subpart F. Non-federal agencies and/or nonprofit organizations that expend less than $750,000 annually in federal awards shall be exempt from an audit conducted in accordance with 2 CFR 200, Subpart F, although their records must be available for review. These agencies are required by the CITY to submit "reduced scope" audits (e.g., financial audits, performance audits). Each audit shall cover a time period of not more than 12 months and an audit shall be submitted covering each assisted period until all the assistance received from this agreement has been reported on. A copy of the audit report must be received by the CITY no later than six months following each audit period. The SUBRECIPIENT shall maintain all records in accordance with generally accepted accounting principles, procedures, and practices which shall sufficiently and properly reflect all revenues and expenditures of funds provided directly or indirectly by the CITY pursuant to the terms of this agreement. 9.7 Uniform Administrative Requirements: The SUBRECIPIENT agrees to maintain books, records and documents in accordance with accounting procedures and practices which sufficiently and properly reflect all expenditures of funds provided by the CITY under this Agreement. The SUBRECIPIENT is required to comply with the following uniform administrative requirements: a. Specific provisions of the uniform administrative requirements of 2 CFR 200, Subpart E — Cost Principles b. OMB 2021 Compliance Supplement Addendum Final V2 (Audit Requirements). c. Applicable provisions of 31 CFR 35.6. 9.8 Lobbying Prohibition: The SUBRECIPIENT shall certify that no federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal Agreement, the making of any federal grant, the making of any federal loan, the entering into of any cooperative Agreement, and the extension, continuation, renewal, amendment, or modification of any federal Agreement, grant, loan, or cooperative Agreement. The SUBRECIPIENT shall disclose to the CITY if any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this federal Agreement. 9.9 Insurance: The SUBRECIPIENT shall furnish to the CITY, c/o the ARPA Project Manager, certificate(s) of current insurance coverage. {00553343.1306-9905603} Page 6 of 10 Page 937 of 971 9.10 Property: All real property purchased in whole or in part with funds from this agreement with the CITY, or transferred to the SUBRECIPIENT after being purchased in whole or in part with funds from the CITY, shall be listed in the property records of the SUBRECIPIENT and shall include a legal description, size, date of acquisition, value at time of acquisition, present market value, present condition, address or location, owner's name if different from the SUBRECIPIENT, information on the transfer or disposition of the property, and map. The property records shall describe the programmatic purpose for which the property was acquired and identify the ARPA national objective that will be met. If the property was improved, the records shall describe the programmatic purpose for which the improvements were made and identify the ARPA national objective that will be met. All nonexpendable personal property purchased in whole or in part with funds from this agreement with the CITY shall be listed in the property records of the SUBRECIPIENT and shall include a description of the property, location, model number, manufacturer's serial number, date of acquisition, funding source, unit cost at the time of acquisition, present market value, property inventory number, information on its condition, and information on transfer, replacement, or disposition of the property. The SUBRECIPIENT shall obtain prior written approval from the CITY for the disposition of real property, expendable personal property, and nonexpendable personal property purchased in whole or in part with funds given to the SUBRECIPIENT pursuant to the terms of this agreement. The SUBRECIPIENT shall dispose of all such property in accordance with instructions from the CITY. Those instructions may require the return of all such property to the CITY. 9.12 Reversion of Assets: The SUBRECIPIENT shall return to the CITY, upon expiration or termination of this Agreement, all the assets owned or held as a result of this Agreement, including, but not limited to any funds on hand, any accounts receivable attributable to these funds, mortgages, notes, and other collateral and any overpayments due to unearned funds or costs disallowed pursuant to the terms of this Agreement that were disbursed to the SUBRECIPIENT by the CITY. The SUBRECIPIENT shall within 30 days of expiration or termination of this Agreement execute any and all documents as required by the CITY to effectuate the reversion of assets. Any funds not earned, as described and provided for in 2 CFR 200, Subpart E, by the SUBRECIPIENT prior to the expiration or termination of this Agreement shall be retained by the CITY. 9.13 Conflicts with Applicable Laws: If any provision of this agreement conflicts with any applicable law or regulation, only the conflicting provision shall be deemed by the parties hereto to be modified to be consistent with the law or regulation or to be deleted if modification is impossible. However, the obligations under this agreement, as modified, shall continue and all other provisions of this agreement shall remain in full force and effect. 9.14 Renegotiation or Modification: Modifications of provisions of the agreement shall be valid only when in writing and signed by duly authorized representatives of each party. The parties agree to renegotiate this agreement if the CITY determines, in its sole and absolute discretion, that federal, State and/or CITY revisions of any applicable laws or regulations, or increases or decreases in budget allocations make changes in this agreement necessary. {00553343.1306-9905603} Page 7 of 10 Page 938 of 971 9.15 Right to Waive: The CITY may, for good and sufficient cause, as determined by the CITY in its sole and absolute discretion, waive provisions in this agreement or seek to obtain such waiver from the appropriate authority. Waiver requests from the SUBRECIPIENT shall be in writing. Any waiver shall not be construed to be a modification of this agreement. 9.16 Disputes: In the event an unresolved dispute exists between the SUBRECIPIENT and the CITY, the CITY shall refer the questions, including the views of all interested parties and the recommendation of the CITY, to the City Manager for determination. The City Manager, or an authorized representative, will issue a determination within 30 calendar days of receipt and so advise the CITY and the SUBRECIPIENT, or in the event additional time is necessary, the CITY will notify the SUBRECIPIENT within the 30 -day period that additional time is necessary. The SUBRECIPIENT agrees that the City Manager's determination shall be final and binding on all parties. 9.17 Indemnification: SUBRECIPIENT acknowledges the waiver of sovereign Immunity for liability in tort contained in Florida Statutes Section 768.28, the State of Florida's partial waiver of sovereign immunity, and acknowledges that such statute permits actions at law to recover damages in tort for money damages up to the limits set forth in such statute for death, personal injury or damage to property caused by the negligent or wrongful acts or omissions of an employee acting within the scope of the employee's office or employment. To the extent and limits of §768.28, Florida Statutes, SUBRECIPIENT will indemnify and be responsible for and hold CITY harmless from and against any and all claims, damages, costs, and expenses caused by its negligent or intentional acts, any copyright violations or arising out of the breach of this contract. Notwithstanding the forgoing, this provision is not intended to serve or constitute (i) an agreement by SUBRECIPIENT to indemnify CITY for Its own negligence; (ii) a waiver of sovereign immunity by SUBRECIPIENT; (iii) a waiver of any defense SUBRECIPIENT may have under such statute; (iv) the consent of SUBRECIPIENT or its officers, employees to be sued; or (v) a waiver of sovereign immunity of the State of Florida beyond the waiver provided in Section 768.28 of the Florida Statutes. If SUBRECIPIENT uses a subcontractor, SUBRECIPIENT shall, by written contract, require its subcontractors to agree to the requirements and obligations of this Section 9.17. 9.18 Public Records: SUBRECIPIENT shall comply with all public records laws in accordance with Chapter 119, Fla. Stat. In accordance with state law, SUBRECIPIENT agrees to: a) Keep and maintain all records that ordinarily and necessarily would be required by the CITY. b) Provide the public with access to public records on the same terms and conditions that the CITY would provide for the records and at a cost that does not exceed the costs provided in Chapter 119, Fla. Stat. or as otherwise provided by law. C) Ensure that public records that are exempt or confidential and exempt from public records disclosure are not disclosed except as authorized by law. d) Meet all requirements for retaining public records and transfer, at no cost, to the CITY all records in possession of the SUBRECIPIENT at the termination of the contract and destroy any public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored {00553343.1 306-9905603} Page 8 of 10 Page 939 of 971 electronically must be provided to the CITY in a format that is compatible with the information technology systems of the CITY. All records shall be transferred to the CITY prior to final payment being made to the SUBRECIPIENT. e) If SUBRECIPIENT does not comply with this section, the CITY shall enforce the contract provisions in accordance with the contract and may unilaterally cancel this contract in accordance with state law. 9.19 Inspector General: SUBRECIPIENT is aware that the Inspector General of Palm Beach County has the authority to investigate and audit matters relating to the negotiation and performance of this Agreement, and may demand and obtain records and testimony from SUBRECIPIENT. SUBRECIPIENT understands and agrees that in addition to all other remedies and consequences provided by law, the failure of SUBRECIPIENT to fully cooperate with the Inspector General when requested may be deemed by the CITY to be a material breach of this Agreement. IN WITNESS OF THE FOREGOING, the parties have set their hands and seals on this day of 2023. WITNESSES: THE SCHOOL BOARD OF PALM BEACH COUNTY on behalf of CONGRESS MIDDLE Print Title Print STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this _ day of , 20237 by Personally Known — OR Produced Identification _Type of Identification Produced Seal NOTARY PUBLIC Signature Print {00553343.1 306-9905603} Page 9 of 10 Page 940 of 971 ATTEST: City Clerk CITY OF BOYNTON BEACH, FLORIDA Mayor Approved as to form: City Attorney {00553343.1306-9905603} Page 10 of 10 Page 941 of 971 ARPA SUBRECIPIENT GRANT AGREEMENT between CITY OF BOYNTON BEACH and THE SCHOOL BOARD OF PALM BEACH COUNTY on behalf of BOYNTON BEACH COMMUNITY HIGH THIS AGREEMENT entered into this day of , 2023 is between the CITY OF BOYNTON BEACH, a Florida municipal corporation, hereinafter referred to as "CITY," and THE SCHOOL BOARD OF PALM BEACH COUNTY on behalf of BOYNTON BEACH COMMUNITY HIGH hereinafter referred to as "the SUBRECIPIENT," having its principal office at 3366 Forest Hill Blvd. A 323, West Palm Beach, FL 33406 and its Federal Tax Identification Number as 85-8013897253C-1. WITNESSETH: WHEREAS, the CITY has entered into an Agreement with the U.S. Treasury Department for Coronavirus State and Local Fiscal Recovery Funds (CSLFRF) for the execution and implementation the American Rescue Plan Act (ARPA) in the CITY, pursuant to the Interim Final Rule of May 17, 2021, and the Final Rule, effective date April 1, 2022 (as amended); and WHEREAS, the CITY desires to engage the SUBRECIPIENT to implement an element of the Boynton Beach ARPA Master Spending Plan; NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, receipt of which is hereby acknowledged, the parties hereto agree as follows: ARTICLE I DEFINITION AND PURPOSE Definitions 1.1 "ARPA" means American Rescue Plan Act. 1.2 "Treasury" means the U.S. Department of Treasury. 1.3 "OMB" means the Federal Office of Management and Budget. 1.4 "CFR" means the Code of Federal Regulations. 1.5 "2 CFR" refers to the Section of the Code of Federal Regulations pertaining to Grants and Agreements. 1.6 "CSLFRF" means Coronavirus State and Local Fiscal Recovery Funds (also referred to as ARPA funds). 1.7 "31 CFR 35.6" refers to the Section of the Code of Federal Regulations pertaining to the Eligible Uses for Part 35, Subpart A — Coronavirus State and Local Fiscal Recovery Funds. {00553345.1306-9905603} Page 1 of 10 Page 942 of 971 1.8 "Program Income" means gross income received directly generated or earned from the use of ARPA funds. Program Income includes, but is not limited to, interest earned on advances of federal funds or royalties received as a result of patents or copyrights produced under this grant. 1.9 "Property" means any purchase of equipment or real property with CSLFRF funds must be consistent with the Uniform Guidance at 2 CFR Part 200, Subpart D. Equipment and real property acquired under this program must be used for the originally authorized purpose in project budget detail. a. "Real Property" means land, land improvements, structures, fixtures and appurtenances thereto, excluding movable machinery and equipment. b. "Personal Property" means personal property of any kind except real property. c. "Nonexpendable Personal Property" means tangible (i.e., physical) personal property of a non -consumable nature, with a value of $500 or more per item, with a normal expected life of one or more years, not fixed in place, and not an integral part of a structure, facility or another piece of equipment. d. "Expendable Personal Property" means all tangible personal property other than nonexpendable property. 1.10 "Subrecipient" means an entity, including but not limited to non -Federal entities, that receives a subaward from a pass-through entity to carry out part of a Federal award; but does not include an individual that is a beneficiary of such award. A subrecipient may also be a recipient of other Federal awards directly from a Federal awarding agency. 2. Purpose The purpose of this Agreement is to state the covenants and conditions under which the SUBRECIPIENT will implement the Statement of Work set forth in Article II of this agreement. ARTICLE II FUNDING AND BUDGET The maximum amount payable by the CITY under this Agreement will be One Hundred Thousand Dollars and 00/100 ($100,000.00). The SUBRECIPIENT shall carry out the activities specified in Attachment A, "Scope of Services." This award is a subaward of CSLFRF funds and the SUBRECIPIENT must comply with any and all requirements for use of CSLFR funds and reporting requirements for expenditures of CSLFRF funds. ARTICLE III FUNDING AND METHOD OF PAYMENT 3.1 The maximum amount payable by the CITY under this Agreement will be One Hundred Thousand Dollars and 00/100 ($100,000.00). It is expressly understood and agreed by the Parties that the funds contemplated by this Agreement originated from federal ARPA funds and funding is contingent upon approval and funding by the Boynton Beach City Commission. SUBRECIPIENT agrees to reimburse CITY, in full, all funds remitted to SUBRECIPIENT by CITY that do not comply with any and all requirements for use of ARPA funding. {00553345.1306-9905603} Page 2 of 10 Page 943 of 971 3.2 The CITY will be invoiced by the SUBRECIPIENT for eligible expenses on a reimbursement basis, and will disburse payments once per quarter unless there is a mutual written agreement otherwise (see Attachment "A" Scope of Services). Bills shall be submitted by the SUBRECIPIENT at least two weeks in advance and will be paid provided appropriate documentation and status and beneficiary reports are attached to the invoice. 3.3 Payment by the CITY shall be contingent upon timely receipt of accurate and complete reports and records required by this Agreement. 3.3 Prior to receipt of ARPA funds (through reimbursement), SUBRECIPIENT shall submit the following documentation: a. Quarterly Progress Report. b. All back up original documentation relating to the expenditures for which payment is sought. 3.4 Release of funds is subject to the approval of the ARPA Project Manager, Finance Director, and/or City Manager. ARTICLE IV TERM OF AGREEMENT The term of this Agreement shall be from March 1, 2023 through December 31, 2024. ARTICLE V SUSPENSION AND TERMINATION 5.1 Termination/Suspension of Payments/Agreement for Cause: If through any cause either party shall fail to fulfill in timely and proper manner its obligations under this Agreement, or if either party shall violate any of the covenants, agreements, or stipulations of this Agreement, either party shall thereupon have the right to terminate this Agreement or suspend payments in whole or in part by giving written notice of such termination or suspension of payments and specify the effective date of termination or suspension. If payments are withheld, the CITY shall specify in writing the actions that must be taken by the SUBRECIPIENT as a condition precedent to resumption of payments and shall specify a reasonable date for compliance. Sufficient cause for suspension of payments shall include, but not be limited to: a. ineffective or improper use of ARPA funds, b. failure to comply with the Statement of Work or terms of this Agreement, c. failure to submit reports as required, d. submittal of materially incorrect or incomplete reports, e. failure to comply with any additional conditions that may be imposed by the Treasury, OMB, or CITY. 5.2 Termination for Convenience of City: The CITY may terminate this Agreement without cause at any time by giving at least ten (10) working days' notice in writing to the {00553345.1306-9905603} Page 3 of 10 Page 944 of 971 SUBRECIPIENT. If this Agreement is terminated by the CITY as provided herein, the SUBRECIPIENT will be paid for allowable services performed under Article II of this Agreement until the effective date of the termination. 5.3 Termination for Convenience of the SUBRECIPIENT: At any time during the term of this Agreement, the SUBRECIPIENT may, at its option and for any reason, terminate this Agreement upon ten (10) working days written notice to the CITY. Upon termination, the SUBRECIPIENT shall be paid for services rendered pursuant to this Agreement through and including the date of termination. ARTICLE VI RECORDS AND REPORTS 6.1 The SUBRECIPIENT agrees to maintain and produce all business records related to use of the subaward grant funds and related business expenditures from the time of grant award through December 31, 2030. 6.2 The SUBRECIPIENT agrees to submit upon request other documentation which may later be determined necessary to assure compliance with this Agreement. ARTICLE VII PROGRAM INCOME The SUBRECIPIENT agrees to expend ARPA funds for the purpose outlined in Article I of this Agreement. It is not anticipated that program income shall be generated from this allocation. However, such income, if generated, may be retained by the SUBRECIPIENT and used for costs that are in addition to the approved costs of this agreement, provided that such costs specifically further the objectives of this agreement and are an eligible use under 31 CFR 35.6. Under no circumstances shall the SUBRECIPIENT use program income to pay for charges or expenses that are specifically not allowed pursuant to the terms of this agreement and applicable federal regulations or rules. The use of program income by the SUBRECIPIENT shall comply with the requirements set forth at 31 CFR 35.6 and must be pre -approved by the CITY. ARTICLE VIII PUBLICITY The SUBRECIPIENT shall ensure that all publicity, public relations, advertisements and signs, recognize the CITY and the ARPA Program for the support of all contracted activities. The use of the official CITY logo is permissible, but all signs used to publicize CITY contracted activities must be approved by the CITY prior to being posted. ARTICLE IX GENERAL CONDITIONS 9.1 Federal Office of Management and Budget Requirements: The SUBRECIPIENT shall comply with requirements established by the Federal Office of Management and Budget (OMB) concerning the Dun and Bradstreet Data Universal Numbering System (DUNS) and System for Award Management (SAM) database, as set forth on 2 CFR Part 200, and the Federal Accountability and Transparency Act, as set forth at 2 CFR Part 170. {00553345.1306-9905603} Page 4 of 10 Page 945 of 971 9.2 Federal, State, County and CITY Laws and Regulations: The SUBRECIPIENT shall comply with applicable provisions of applicable federal, state, County, and CITY laws, regulations and rules, including 2 CFR part 200, subpart E, OMB A-21, 2 CFR part 200, subpart F. The SUBRECIPIENT shall comply with Section 504 of the Rehabilitation Act of 1973, as amended, which prohibits discrimination on the basis of handicap; Title VI of the Civil Rights Act of 1964, as amended, which prohibits discrimination on the basis of race, color, or national origin; the Age Discrimination Act of 1975, as amended, which prohibits discrimination on the basis of age; Title VIII of the Civil Rights Act of 1968, as amended, and Executive Order 11063 which prohibits discrimination in housing on the basis of race, color, religion, sex, or national origin; Executive Order 11246, as amended which requires equal employment opportunity; and with the Energy Policy, amended and Conservation Act (Pub.L 94-163) which requires mandatory standards and policies relating to energy efficiency. The SUBRECIPIENT shall report its compliance with Section 504 of the Rehabilitation Act whenever so requested by the CITY. The SUBRECIPIENT shall comply with all applicable requirements of the Americans with Disabilities Act (ADA) of 1990, including, but not limited to, those provisions pertaining to employment, program services, transportation, communications, access to facilities, renovations, and new construction. 9.3 Other Program Requirements: The SUBRECIPIENT shall comply with all federal laws and regulations pertaining to 31 CFR 35.6 Treasury Department Interim Regulations, Treasury Department CSLFRF Frequently Asked Questions, and Treasury Department CSLFRF Compliance and Reporting Guidance. 9.4 Opportunities for Residents and Civil Rights Compliance: The SUBRECIPIENT agrees that no person shall on the grounds of race, color, national origin, religion, or sex be excluded from the benefits of, or be subjected to, discrimination under any activity carried out by the performance of this Agreement. To the greatest feasible extent, lower-income residents of the project areas shall be given opportunities for training and employment; and to the greatest feasible extent, eligible business concerns located in or owned in substantial part by persons residing in the project areas shall be awarded contracts in connection with the project. 9.5 Evaluation and Monitoring: The SUBRECIPIENT agrees that the CITY will carry out periodic monitoring and evaluation activities as determined necessary and that the continuation and/or renewal of this Agreement is dependent upon satisfactory evaluation conclusions. Such evaluations will be based on the terms of this Agreement, comparisons of planned versus actual progress relating to activity scheduling, budgets, audit reports, and output measures. The SUBRECIPIENT agrees to furnish upon request to the CITY and make copies of transcriptions of such records and information as is determined necessary by the CITY. The SUBRECIPIENT shall submit on a schedule set by the CITY and at other times upon request, information and status reports required by the CITY to enable the evaluation of said progress and to allow for completion of reports required of the CITY by the Treasury. The SUBRECIPIENT shall allow the CITY or the Treasury to monitor its agency on site. Such site visits may be scheduled or unscheduled as determined by the CITY or the Treasury. Ongoing monitoring of the SUBRECIPIENT will be done through quarterly reporting from the SUBRECIPIENT to the City. Reporting requirements will be based upon the {00553345.1306-9905603} Page 5 of 10 Page 946 of 971 SUBRECIPIENT'S risk assessment and in compliance with the CSLFRF Compliance and Reporting Guidance and Uniform Guidance 2 CFR Part 200. Monitoring will include identification of deficiencies in meeting stated requirements in Article II of this agreement and follow-up to ensure appropriate remediation. 9.6 Audits: Any non-federal agency and/or non-profit organization that expends $750,000 or more annually in federal awards shall have a single or program specific audit conducted accordance with 2 CFR 200, Subpart F. Non-federal agencies and/or nonprofit organizations that expend less than $750,000 annually in federal awards shall be exempt from an audit conducted in accordance with 2 CFR 200, Subpart F, although their records must be available for review. These agencies are required by the CITY to submit "reduced scope" audits (e.g., financial audits, performance audits). Each audit shall cover a time period of not more than 12 months and an audit shall be submitted covering each assisted period until all the assistance received from this agreement has been reported on. A copy of the audit report must be received by the CITY no later than six months following each audit period. The SUBRECIPIENT shall maintain all records in accordance with generally accepted accounting principles, procedures, and practices which shall sufficiently and properly reflect all revenues and expenditures of funds provided directly or indirectly by the CITY pursuant to the terms of this agreement. 9.7 Uniform Administrative Requirements: The SUBRECIPIENT agrees to maintain books, records and documents in accordance with accounting procedures and practices which sufficiently and properly reflect all expenditures of funds provided by the CITY under this Agreement. The SUBRECIPIENT is required to comply with the following uniform administrative requirements: a. Specific provisions of the uniform administrative requirements of 2 CFR 200, Subpart E — Cost Principles b. OMB 2021 Compliance Supplement Addendum Final V2 (Audit Requirements). c. Applicable provisions of 31 CFR 35.6. 9.8 Lobbying Prohibition: The SUBRECIPIENT shall certify that no federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal Agreement, the making of any federal grant, the making of any federal loan, the entering into of any cooperative Agreement, and the extension, continuation, renewal, amendment, or modification of any federal Agreement, grant, loan, or cooperative Agreement. The SUBRECIPIENT shall disclose to the CITY if any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this federal Agreement. 9.9 Insurance: The SUBRECIPIENT shall furnish to the CITY, c/o the ARPA Project Manager, certificate(s) of current insurance coverage. {00553345.1306-9905603} Page 6 of 10 Page 947 of 971 9.10 Property: All real property purchased in whole or in part with funds from this agreement with the CITY, or transferred to the SUBRECIPIENT after being purchased in whole or in part with funds from the CITY, shall be listed in the property records of the SUBRECIPIENT and shall include a legal description, size, date of acquisition, value at time of acquisition, present market value, present condition, address or location, owner's name if different from the SUBRECIPIENT, information on the transfer or disposition of the property, and map. The property records shall describe the programmatic purpose for which the property was acquired and identify the ARPA national objective that will be met. If the property was improved, the records shall describe the programmatic purpose for which the improvements were made and identify the ARPA national objective that will be met. All nonexpendable personal property purchased in whole or in part with funds from this agreement with the CITY shall be listed in the property records of the SUBRECIPIENT and shall include a description of the property, location, model number, manufacturer's serial number, date of acquisition, funding source, unit cost at the time of acquisition, present market value, property inventory number, information on its condition, and information on transfer, replacement, or disposition of the property. The SUBRECIPIENT shall obtain prior written approval from the CITY for the disposition of real property, expendable personal property, and nonexpendable personal property purchased in whole or in part with funds given to the SUBRECIPIENT pursuant to the terms of this agreement. The SUBRECIPIENT shall dispose of all such property in accordance with instructions from the CITY. Those instructions may require the return of all such property to the CITY. 9.12 Reversion of Assets: The SUBRECIPIENT shall return to the CITY, upon expiration or termination of this Agreement, all the assets owned or held as a result of this Agreement, including, but not limited to any funds on hand, any accounts receivable attributable to these funds, mortgages, notes, and other collateral and any overpayments due to unearned funds or costs disallowed pursuant to the terms of this Agreement that were disbursed to the SUBRECIPIENT by the CITY. The SUBRECIPIENT shall within 30 days of expiration or termination of this Agreement execute any and all documents as required by the CITY to effectuate the reversion of assets. Any funds not earned, as described and provided for in 2 CFR 200, Subpart E, by the SUBRECIPIENT prior to the expiration or termination of this Agreement shall be retained by the CITY. 9.13 Conflicts with Applicable Laws: If any provision of this agreement conflicts with any applicable law or regulation, only the conflicting provision shall be deemed by the parties hereto to be modified to be consistent with the law or regulation or to be deleted if modification is impossible. However, the obligations under this agreement, as modified, shall continue and all other provisions of this agreement shall remain in full force and effect. 9.14 Renegotiation or Modification: Modifications of provisions of the agreement shall be valid only when in writing and signed by duly authorized representatives of each party. The parties agree to renegotiate this agreement if the CITY determines, in its sole and absolute discretion, that federal, State and/or CITY revisions of any applicable laws or regulations, or increases or decreases in budget allocations make changes in this agreement necessary. {00553345.1306-9905603} Page 7 of 10 Page 948 of 971 9.15 Right to Waive: The CITY may, for good and sufficient cause, as determined by the CITY in its sole and absolute discretion, waive provisions in this agreement or seek to obtain such waiver from the appropriate authority. Waiver requests from the SUBRECIPIENT shall be in writing. Any waiver shall not be construed to be a modification of this agreement. 9.16 Disputes: In the event an unresolved dispute exists between the SUBRECIPIENT and the CITY, the CITY shall refer the questions, including the views of all interested parties and the recommendation of the CITY, to the City Manager for determination. The City Manager, or an authorized representative, will issue a determination within 30 calendar days of receipt and so advise the CITY and the SUBRECIPIENT, or in the event additional time is necessary, the CITY will notify the SUBRECIPIENT within the 30 -day period that additional time is necessary. The SUBRECIPIENT agrees that the City Manager's determination shall be final and binding on all parties. 9.17 Indemnification: SUBRECIPIENT acknowledges the waiver of sovereign Immunity for liability in tort contained in Florida Statutes Section 768.28, the State of Florida's partial waiver of sovereign immunity, and acknowledges that such statute permits actions at law to recover damages in tort for money damages up to the limits set forth in such statute for death, personal injury or damage to property caused by the negligent or wrongful acts or omissions of an employee acting within the scope of the employee's office or employment. To the extent and limits of §768.28, Florida Statutes, SUBRECIPIENT will indemnify and be responsible for and hold CITY harmless from and against any and all claims, damages, costs, and expenses caused by its negligent or intentional acts, any copyright violations or arising out of the breach of this contract. Notwithstanding the forgoing, this provision is not intended to serve or constitute (i) an agreement by SUBRECIPIENT to indemnify CITY for Its own negligence; (ii) a waiver of sovereign immunity by SUBRECIPIENT; (iii) a waiver of any defense SUBRECIPIENT may have under such statute; (iv) the consent of SUBRECIPIENT or its officers, employees to be sued; or (v) a waiver of sovereign immunity of the State of Florida beyond the waiver provided in Section 768.28 of the Florida Statutes. If SUBRECIPIENT uses a subcontractor, SUBRECIPIENT shall, by written contract, require its subcontractors to agree to the requirements and obligations of this Section 9.17. 9.18 Public Records: SUBRECIPIENT shall comply with all public records laws in accordance with Chapter 119, Fla. Stat. In accordance with state law, SUBRECIPIENT agrees to: a) Keep and maintain all records that ordinarily and necessarily would be required by the CITY. b) Provide the public with access to public records on the same terms and conditions that the CITY would provide for the records and at a cost that does not exceed the costs provided in Chapter 119, Fla. Stat. or as otherwise provided by law. C) Ensure that public records that are exempt or confidential and exempt from public records disclosure are not disclosed except as authorized by law. d) Meet all requirements for retaining public records and transfer, at no cost, to the CITY all records in possession of the SUBRECIPIENT at the termination of the contract and destroy any public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored {00553345.1 306-9905603} Page 8 of 10 Page 949 of 971 electronically must be provided to the CITY in a format that is compatible with the information technology systems of the CITY. All records shall be transferred to the CITY prior to final payment being made to the SUBRECIPIENT. e) If SUBRECIPIENT does not comply with this section, the CITY shall enforce the contract provisions in accordance with the contract and may unilaterally cancel this contract in accordance with state law. 9.19 Inspector General: SUBRECIPIENT is aware that the Inspector General of Palm Beach County has the authority to investigate and audit matters relating to the negotiation and performance of this Agreement, and may demand and obtain records and testimony from SUBRECIPIENT. SUBRECIPIENT understands and agrees that in addition to all other remedies and consequences provided by law, the failure of SUBRECIPIENT to fully cooperate with the Inspector General when requested may be deemed by the CITY to be a material breach of this Agreement. IN WITNESS OF THE FOREGOING, the parties have set their hands and seals on this day of 2023. WITNESSES: THE SCHOOL BOARD OF PALM BEACH COUNTY on behalf of BOYNTON BEACH COMMUNITY HIGH M Print Print STATE OF FLORIDA COUNTY OF PALM BEACH Title The foregoing instrument was acknowledged before me this _ day of , 20237 by Personally Known _ OR Produced Identification _Type of Identification Produced Seal NOTARY PUBLIC Signature Print {00553345.1306-9905603} Page 9 of 10 Page 950 of 971 ATTEST: City Clerk CITY OF BOYNTON BEACH, FLORIDA Mayor Approved as to form: City Attorney {00553345.1306-9905603} Page 10 of 10 Page 951 of 971 12.A. Legal 2/21/2023 Requested Action by Commission: Proposed Resolution No. R23-021- Approve and authorize the Mayor to sign the Declaration of Restrictive Covenant restricting the future park site in the Leisureville subdivision to use as a passive public park. Explanation of Request: It is the intent of City of Boynton Beach that this declaration once recorded in the public records of Palm Beach County, shall serve to impose requirements on the property and that the property shall be solely used solely for passive public park purposes and not developed beyond its current natural environment, with no parking and no signage except trespass and loitering permitted. The City may use part of the Property to provide for a paved access road or cul-de-sac for the safe movement of City vehicles at the end of SW 1st Avenue, SW 1st Court, West Ocean Avenue, and NW 1st Avenue. No revisions, amendments, modifications, or termination of the Declaration shall be permitted unless specifically approved by the unanimous vote of the City Commission of the City of Boynton Beach. How will this affect city programs or services? City programs and services will not be affected as part of this action. Fiscal Impact: There are no fiscal impacts associated with this action. Alternatives: Do not approve the declaration of restrictive covenant which would permit the property to be developed consistent with the plat and City of Boynton Beach Code of Ordinances. Strategic Plan: Strategic Plan Application: Climate Action Application: Is this a grant? Grant Amount: Attachments: Page 952 of 971 Type AttacftrTIENI'lt Description IRE)SOkAboin approviing IDEXJlairahoin of IRE)Strichve, Cove,inaints for I E) iSL.Jlir'EMA l� E) is E)C'Jarahoin Of IfRE)Stlrichve, CoveinaintS--- I E)Si LA rENi lbl Page 953 of 971 I RESOLUTION NO. R23-021 2 A RESOLUTION OF THE CITY OF BOYNTON BEACH, FLORIDA, 3 APPROVING AND AUTHORIZING THE MAYOR TO SIGN THE 4 DECLARATION OF RESTRICTIVE COVENANTS RESTRICTING THE 5 FUTURE PARK SITE IN THE LEISUREVILLE SUBDIVISION TO USE AS A 6 PASSIVE PUBLIC PARK; AND PROVIDING AN EFFECTIVE DATE. 7 WHEREAS, it is the intent of City of Boynton Beach that this declaration once recorded 8 in the public records of Palm Beach County, shall serve to impose requirements on the property 9 and that the property shall be solely used solely for passive public park purposes and not 10 developed beyond its current natural environment, with no parking and no signage except 11 trespass and loitering permitted; and 12 WHEREAS, additionally no revisions, amendments, modifications, or termination of the 13 Declaration shall be permitted unless specifically approved by the unanimous vote of the City 14 Commission of the City of Boynton Beach; and 15 WHEREAS, the City Commission of the City of Boynton Beach, Florida, upon the 16 recommendation of staff, deems it to be in the best interests of the City residents to approve 17 and authorize the Mayor to sign the Declaration of Restrictive Covenant restricting the future 18 park site in the Leisureville subdivision to use as a passive public park. 19 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF 20 BOYNTON BEACH, FLORIDA, THAT: 21 Section 1. Each Whereas clause set forth above is true and correct and 22 incorporated herein by this reference. S:ACA\RESO\Agreements\Leisureville Declaration Of Restrictive Covenant - Reso.Docx Page 954 of 971 23 Section 2. The City Commission of the City of Boynton Beach, Florida does hereby 24 approve and authorize the Mayor to sign the Declaration of Restrictive Covenant restricting 25 the future park site in the Leisureville subdivision to use as a passive public park. A copy of the 26 Declaration of Restrictive Covenant is attached hereto and incorporated herein as Exhibit "A". 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 ATTEST: 45 46 47 Maylee De Jesus, MPA, MMC 48 City Clerk 49 50 51 (Corporate Seal) 52 53 54 Section 3. That this Resolution shall become effective immediately upon passage. PASSED AND ADOPTED this 21 st day of February, 2023. CITY OF BOYNTON BEACH, FLORIDA Mayor — Ty Penserga Vice Mayor —Angela Cruz Commissioner — Woodrow L. Hay Commissioner — Thomas Turkin Commissioner —Aimee Kelley VOTE YES NO Ty Penserga Mayor APPROVED AS TO FORM: Michael D. Cirullo, Jr. City Attorney S:ACA\RESO\Agreements\Leisureville Declaration Of Restrictive Covenant - Reso.Docx Page 955 of 971 Folio No. 08-43-45-29-00-000-1040 DECLARATION OF RESTRICTIVE COVENANTS (PUBLIC PARK) THIS DECLARATION OF RESTRICTIVE COVENANTS (the "Declaration") made this day of , 2023 by the CITY OF BOYNTON BEACH, a Florida municipal corporation (hereinafter referred to as "CITY") for itself and its successors and assigns. WITNESSETH WHEREAS, CITY is the fee simple title owner of that certain real property located in Palm Beach County, Florida, and legally described in Exhibit "A", attached hereto and incorporated herein, (hereinafter referred to as the "Property"); and WHEREAS, CITY intends to use the Property for passive public park purposes for use by the general public; and WHEREAS, it is the intent of CITY that this Declaration once recorded in the Public Records of Palm Beach County, shall serve to impose requirements on the Property and the fee simple title owner to the Property, as provided herein; and NOW, THEREFORE, CITY hereby declares that the Property shall only be developed, held, maintained, transferred, sold, conveyed and owned subject to the following requirements and restrictive covenants: 1. RECITALS. The recitals set forth above are true and correct and are incorporated into this Declaration. 2. EXHIBITS. Any exhibits referenced herein are incorporated into and made a specific part hereof whether or not physically attached hereto. {00553562.1 306-9001821} Page 956 of 971 3. RESTRICTIONS/REQUIREMENTS FOR THE PROPERTY. CITY hereby declares that the Property shall be only used as a passive public park and not developed beyond its current natural environment as of the date of this Declaration to serve as a public park and accessory or related purposes for use by the general public, and for no other purpose. Specifically, no signage other than prohibiting trespassing and loitering shall be erected on the Property. No parking shall be permitted on the Property. Planting of trees and maintenance of landscaping and environment on the Property by the CITY is not prohibited by this paragraph. Construction and maintenance of a paved access road and/or cul-de-sac by the City is permitted on the Property to allow solely for the safe movement of CITY vehicles such as garbage and fire trucks at the terminus of the following City streets: SW 1 St Avenue, SW 1 St Court, West Ocean Avenue, and NW 1St Avenue. 4. MODIFICATION AND TERMINATION. No revisions, amendments, modifications, or termination of this Declaration shall be permitted unless specifically approved by the unanimous vote of the City Commission of the City of Boynton Beach. 5. COVENANT RUNNING WITH THE LAND This Declaration of Restrictive Covenant shall constitute a covenant running with the Property for the benefit of the CITY, and shall be binding upon the heirs, beneficiaries, personal representatives, successor and assigns of the CITY. 6. ENFORCEMENT. The CITY may enforce the provisions of this Declaration of Restrictive Covenant by action at law or in equity against any owner, or their successors and assigns). This includes Code Enforcement actions against any successor for violation of this Declaration. The trial venue for any litigation concerning this Declaration shall be in the Palm Beach County Court, as appropriate. If any action at law or in equity is necessary to enforce or interpret the terms of this Declaration of Restrictive Covenant, the prevailing party shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled. rMVi%1 Dl :11Z Failure of the CITY to enforce this Declaration of Restrictive Covenant shall not be deemed a waiver of the right to do so thereafter. 8. INVALIDATION. This Declaration of Restrictive Covenant shall be recorded in the public records of Palm Beach County, Florida, and shall become binding upon recordation. Invalidation of any one of these restrictive covenants by judgement or court order shall in no way affect any other conditions which remain in full force and effect. 9. EFFECTIVE DATE. This Declaration shall become effective and enforceable upon execution and recordation in the Public Records of Palm Beach County, Florida. {00553562.1 306-9001821} Page 957 of 971 10. TIME IS OF THE ESSENCE. Time is of the essence regarding every obligation or restriction of this Declaration. 11. RELEASES AND AMENDMENTS. Any release or amendment not approved with the required formalities as specified herein shall be null and void. IN WITNESS WHEREOF, the this _ day of , 2023. WITNESSES: Print Name Print Name STATE OF FLORIDA ) has hereunto set its authorized hand CITY: City of Boynton Beach, a Florida municipal corporation By: Ty Penserga, Mayor Executed this _ day of , 2023. )SS COUNTY OF PALM BEACH ) The foregoing instrument was acknowledged before me by means of ❑ physical presence or ❑ online notarization, this _ day of , by Ty Penserga as Mayor of Boynton Beach who is personally known to me or has produced as identification. SWORN TO AND SUBSCRIBED BEFORE ME this day of 2023. NOTARY PUBLIC My Commission Expires: Serial Number, if any: {00553562.1 306-9001821} Page 958 of 971 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY A, parcel of land lying in Section 29, Township 45 South, Range 43 East, Palm Beach County, Florida, being more particularly described as follows: Commencing at the Northeast corner of Lot 41, Block 2, of the Plat "Replat of First Section Palm Beach Leisureville", as recorded in Plat Book 28, Pages 201, 202, and 203, of the Public Records of Palm Beach County, Florida; Thence South 01 °12'55" East along the East line of Lots 34-41, Block 2 of said "Replat of First Section Palm Beach Leisureville", a distance of 520.34 feet to the Point of Beginning; Thence continue South 01 °12'55" East along the East line of Lots 22- 34 of - said Block 2, a distance of 672.12 feet to the Southeast corner of Lot 22, of said Block 2; Thence North 87059'27" East along the North line of lots 7-12 of said Block 2, a distance of. 330,70 feet to the Northeast corner of Lot 7 of said Block 2; Thence North 01 ° 16'09" West along the West line of Lots 4 and 5, of said Block 2, a distance of 170.33 feet to a point of intersection with the South line of that 25.00 foot wide Right -of -Way for "Jasmine Street" as shown on said "Replat of First Section Palm Beach Leisureville"; Thence South 88024'30" West along said South line, a distance of 126.90 feet to a point of intersection with the Southerly projection of the West line of the Plat of "Lake Boynton Estates Plat 4-A", as recorded in Plat Book 14, Page 69, of the Public Records of Palm Beach County, Florida; Thence North 01 035'00" West along said projection line and the West line thereof, a distance of 499.34 feet; Thence South 88024'52" West, a distance of 200.39 feet to the Point of Beginning. Said Lands situate in the City of Boynton Beach, Palm Beach County, Florida. Containing 157,578 Square feet / 3.6175 Acres, more or less. Folio No. 08-43-45-29-00-000-1040 {00553562.1 306-9001821} Page 959 of 971 13.A. Future Agenda Items 2/21/2023 Requested Action by Commission: Update on EcoPark, requested by Commissioner Kelley. - March 9, 2023 Explanation of Request: How will this affect city programs or services? Fiscal Impact: Alternatives: Strategic Plan: Strategic Plan Application: Climate Action Application: Is this a grant? Grant Amount: Attachments: Page 960 of 971 13. B. Future Agenda Items 2/21/2023 Requested Action by Commission: Consider revised local rules for approval. - March 21, 2023 Explanation of Request: How will this affect city programs or services? Fiscal Impact: Alternatives: Strategic Plan: Strategic Plan Application: Climate Action Application: Is this a grant? Grant Amount: Attachments: Page 961 of 971 13.C. Future Agenda Items 2/21/2023 Requested Action by Commission: Continue discussion on adding a new sister city, requested by Commissioner Turkin - March 2023 Explanation of Request: How will this affect city programs or services? Fiscal Impact: Alternatives: Strategic Plan: Strategic Plan Application: Climate Action Application: Is this a grant? Grant Amount: Attachments: Page 962 of 971 13.D. Future Agenda Items 2/21/2023 Requested Action by Commission: Discussion regarding American Rescue Plan Funds, requested by Mayor Penserga - TBD Explanation of Request: How will this affect city programs or services? Fiscal Impact: Alternatives: Strategic Plan: Strategic Plan Application: Climate Action Application: Is this a grant? Grant Amount: Attachments: Page 963 of 971 13. E. Future Agenda Items 2/21/2023 Requested Action by Commission: Discussion regarding installing a coral reef at Oceanfront Park, requested by Commissioner Turkin - TBD Explanation of Request: How will this affect city programs or services? Fiscal Impact: Alternatives: Strategic Plan: Strategic Plan Application: Climate Action Application: Is this a grant? Grant Amount: Attachments: Page 964 of 971 13. F. Future Agenda Items 2/21/2023 Requested Action by Commission: Review Advisory Board Ordinance, requested by Commissioner Kelley. - TBD Explanation of Request: How will this affect city programs or services? Fiscal Impact: Alternatives: Strategic Plan: Strategic Plan Application: Climate Action Application: Is this a grant? Grant Amount: Attachments: Page 965 of 971 13.G. Future Agenda Items 2/21/2023 Requested Action by Commission: Discussion regarding future cemetery lots in Boynton Beach, requested by Commissioner Hay - TBD Explanation of Request: How will this affect city programs or services? Fiscal Impact: Alternatives: Strategic Plan: Strategic Plan Application: Climate Action Application: Is this a grant? Grant Amount: Attachments: Page 966 of 971 13. H. Future Agenda Items 2/21/2023 Requested Action by Commission: Discussion for Ordinance regarding tints for paraphernalia shops, requested by Commissioner Turkin - TBD Explanation of Request: How will this affect city programs or services? Fiscal Impact: Alternatives: Strategic Plan: Strategic Plan Application: Climate Action Application: Is this a grant? Grant Amount: Attachments: Page 967 of 971 13.1. Future Agenda Items 2/21/2023 Requested Action by Commission: Look into lowering or waiving arts impact fees for small businesses, requested by Commissioner Turkin- TBD Explanation of Request: How will this affect city programs or services? Fiscal Impact: Alternatives: Strategic Plan: Strategic Plan Application: Climate Action Application: Is this a grant? Grant Amount: Attachments: Page 968 of 971 13.J. Future Agenda Items 2/21/2023 Requested Action by Commission: Discussion regarding changing minimum requirements for traffic studies, requested by Commissioner Turkin- TBD Explanation of Request: How will this affect city programs or services? Fiscal Impact: Alternatives: Strategic Plan: Strategic Plan Application: Climate Action Application: Is this a grant? Grant Amount: Attachments: Page 969 of 971 13. K. Future Agenda Items 2/21/2023 Requested Action by Commission: Update regarding speedbumps throughout the City, requested by Commissioner Turkin-TBD Explanation of Request: How will this affect city programs or services? Fiscal Impact: Alternatives: Strategic Plan: Strategic Plan Application: Climate Action Application: Is this a grant? Grant Amount: Attachments: Page 970 of 971 13. L. Future Agenda Items 2/21/2023 Requested Action by Commission: Discussion regarding bringing more jobs to the City at former ToysRUs site, requested by Commissioner Turkin.- TBD Explanation of Request: How will this affect city programs or services? Fiscal Impact: Alternatives: Strategic Plan: Strategic Plan Application: Climate Action Application: Is this a grant? Grant Amount: Attachments: Page 971 of 971