Agenda 02-15-23City of Boynton Beach
Special Meeting
Date: Wednesday, February 15, 2023 Time: 6:00 PM
Place: City Hall Commission Chambers
1. Agenda Items
A. Call to Order - Mayor Ty Penserga
Roll Call
Invocation by Commissioner Woodrow Hay
Pledge of Allegiance to the Flag led by Commissioner Aimee Kelley
Agenda Approval:
1. Additions, Deletions, Corrections
2. Adoption
B. Informational items by the Members of the City Commission.
C. Public Hearing for Proposed Ordinance No. 23-004- First 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.
2. Adjourn
Notice
Notice if a person decides to appeal 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 proceeding is made, which record includes the testimony and evidence upon
which the appeal is to be based. (F.S. 286.0105)
The city shall furnish appropriate auxiliary aids and services where necessary to
afford an individual with a disability an equal opportunity to participate in and enjoy the
benefits of a service, program, or activity conducted by the city. Please contact the City
Clerk's office, (561) 742-6060 or (TTY) 1-800-955-8771, at least 48 hours prior to the
program or 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. Information regarding items added to the agenda after it is
published on the city's web site can be obtained from the Office of the City Clerk.
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1.C.
Agenda Items
2/15/2023
CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
REQUESTED ACTION BY COMMISSION: Public Hearing for Proposed Ordinance No. 23-004- First
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 is 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 BBTCAwould 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
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.
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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 JKM BTS Central LLC, JKM
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
Work Force 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:
1. Do not approve the proposed development agreement.
2. Provide further direction to staff and legal departments.
STRATEGIC PLAN:
STRATEGIC PLAN APPLICATION:
CLIMATE ACTION APPLICATION:
Is this a grant?
Grant Amount:
ATTACHMENTS:
Type Description
D Ordinance
C.. Itll�nlint::�If:I��fC Aplpircviiirng
vet
D Agreement1.)evnallc: pir neintA(. reeirnnent with tBoyirntonn I[..3 acll"n
Town (..enrnttei Apan'tn"7rnen'nts I1....1.....C11
Page 3 of 93
I
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 21st day of February, 2023.
*Scriveners error corrected from advertised title the name Square changed to Center.
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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 Jes6s, MPA, MMC Ty Penserga
City Clerk Mayor
(Corporate Seal)
YES NO
APPROVED AS TO FORM:
Michael D. Cirullo, Jr.
City Attorney
2
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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 -I (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;"
0]885343-2 i:531051471
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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"), 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 C (the "Master Plan"), which depicts the Property as being comprised of that parcel
containing 3.93 acres +/- identified as the "North Residential" (the "North Parcel"), which
includes the Developer Swap Parcel; and that parcel containing 3.93 acres identified as "South
Residential" (the "South Parcel") (the terin "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 D (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 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 "North
Garage"), and
On the South Parcel: one (1) eight (8) story residential 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
(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
0]885343-2
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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 of Boynton 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 a
temporary parking license agreement (`Temporary Parking License Agreement") with
Developer for surface parking on the Property for City uses, as more particularly set forth in such
Temporary Parking License Agreement 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; 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
later;
HEMMM
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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:
0]885343-2
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 lst Street to provide a total of 25
feet of right-of-way measured from the centerline between SE l st 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
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(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 Book127,
Page 1; 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, Page 1;
b. Easement in favor of City recorded in ORB 30690/556
(7) Abandonment of a 10 foot FPL Easement (ORB 2403, Page 1139);
(8) Dedication of Track R3 per Plat Bookl27, Page 1;
(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
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:
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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"). 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 11, 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 F ("Existing Infrastructure"), which Exhibit is hereby incorporated
herein, exists and is available to serve the Project. The Existing Infrastructure includes: {{potable
water, gravity sanitary sewer, wastewater lift station, reclaimed water, and stormwater drainage} 1.
Notwithstanding the foregoing, as provided in the conditions of approval of the Master Plan, if the
Existing Infrastructure immediately adjacent to and serving the Project (the "Adjacent Existing
Infrastructure," as depicted on Exhibit F is reasonably determined to be insufficient to adequately
serve the Project, Developer shall be responsible for required modifications to the Adjacent
Existing Infrastructure to provide such service. For avoidance of doubt as to Developer's
obligations concerning upgrades to Adjacent 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 1St Street and/or NE 1St Avenue from the stub out on the west end near Seacrest
Avenue to NE 1St Street. For further avoidance of doubt, Developer shall not be required to pay
the cost of any upgrades to the Existing Infrastructure except for the Adjacent Existing
Infrastructure as expressly provided in this subsection (e). 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 concurrency requirements for water and sewer utilities will be met in accordance with to
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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"):
01885343-2
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
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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 11, 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.
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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 License Agreement executed by City and Developer; and
b) Continuing Parking Lease Agreement.
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,
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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.
01885343-2
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.
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01885343-2
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. 11,
Sections 2.F.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:
i) As provided in the Temporary Parking License Agreement.
ii) Upon issuance of a final certificate of occupancy for both Parking Garages,
Developer agrees to provide such parking spaces and otherwise perform its
obligations as required under the Continuing Parking Lease Agreement, and to
thereafter operate and manage such Parking Garages in conformance with its
obligations thereunder and otherwise in a first-class manner.
h) Developer shall develop the Project consistent with the Material Components defined
herein.
i) 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).
j) Developer shall pay all fees as may be required by the City pursuant to the fee schedule
in effect at the date of permit issuance.
k) 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.
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City shall deliver Developer written notice that such written report is required not less
than 30 days in advance of the date due.
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"):
01885343-2
a) This Agreement is executed by all Parties;
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b) The Settlement Agreement, attached hereto as Exhibit E, between the City and JKM
becomes effective per its terms;
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 by all Parties; and
f) Execution of the Temporary Parking Lease Agreement 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, if City determines that Developer has failed to diligently prosecute completion of
construction once commenced, 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
01885343-2
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commence vertical construction as required by Section 5(d) or fails to meet any other Deadline in
this Agreement, the City Commission may tenninate this Agreement as provided above. In no case
shall the City be entitled to require Developer to construct the Project.
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 Agreement 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:
01885343-2
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;
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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,
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:
01885343-2
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
MCirullo(&,,gorencherof. com
Kathryn Rossmell
Lewis, Longman & Walker, PA
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Page 20 of 93
360 S. Rosemary Avenue
Suite 1100
West Palm Beach, FL 33401
krossmell(cr� llw-law. com
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
rsingerktimeequities.com
mrubensteinktimeequities. com
With a copy to: Greenspoon Marder LLP
Mark Lynn, Esq.
200 E. Broward Blvd.
Suite 1800
Fort Lauderdale, FL 33301
mark.lynn rx,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) and 5(g) 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
01885343-2
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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
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 party.
Section 18. Attorney's Fees. In the event that either party brings suit to enforce the
terms of this Agreement, then the prevailing party 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. Severabilitv. 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
01885343-2
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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.
Section 26. Construction. Each party hereto hereby acknowledges that all parties
hereto participated equally in the drafting of this Agreement and that, accordingly, no court
construing this Agreement shall construe it more stringently against one party than the other.
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.
01885343-2
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 23 of 93
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 — Proposed Master Plan
Exhibit D - Schematic Design Package
Exhibit E — Settlement Agreement
Exhibit F — Existing Infrastructure/Adjacent Existing Infrastructure
01885343-2
[SIGNATURES ON FOLLOWING PAGE]
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Page 24 of 93
IN WITNESS WHEREOF the parties hereto have caused these presents to be executed.
ATTEST:
CITY OF BOYNTON BEACH
itz
City Clerk Mayor
Address:
City Attorney
STATE OF FLORIDA }
COUNTY OF PALM BEACH }
The foregoing instrument was acknowledged before me this day of
2023, 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:
01885343-2
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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 , 2023,
by of BOYNTON BEACH TOWN CENTER APARTMENTS,
LLC, a Florida limited liability 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) NOTARY PUBLIC:
My commission expires:
01885343-2
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Print Name:
Page 26 of 93
01885343-2
EXHIBIT A
JKM Parcels
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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.
Page 28 of 93
01885343-2
EXHIBIT B
Land Swap Agreement
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Page 29 of 93
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 30 of 93
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 31 of 93
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 32 of 93
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 33 of 93
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
nu-ubenstein(i)timeeciuities. cotn
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 34 of 93
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
MCirullo(,- ,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 35 of 93
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]
{00549748.1306-9905263 }
-7-
Page 36 of 93
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
"BBTCA"
BOYNTON BEACH TOWN CENTER
APARTMENTS, LLC, a Florida limited
liability c. mpany
By:
h, —
Print Name: imhx
Title: 01a VA ar""'e, /Ic'
Date: cir. V1 ULCkVb'
ccclwov
CITY OF BOYNTON BEACH
By:
Print Name:
Title:
Date:
{00549748.1306-9905163)
Page 37 of 93
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 38 of 93
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 39 of 93
01885343-2
EXHIBIT B-1
Developer Swap Parcel
-24-
Page 40 of 93
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.
Page 41 of 93
01885343-2
EXHIBIT B-2
Central Parcel
-25-
Page 42 of 93
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.
Page 43 of 93
01885343-2
EXHIBIT C
Master Plan
-26-
Page 44 of 93
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EXHIBIT D
Schematic Design Package
(Includes Preliminary Site Plan)
https:Hmsaarchitectsine. sharefile. com/d-s66919c5ce5a545 56bc9 l 51 c4d l bO3fc1
-27-
Page 47 of 93
01885343-2
EXHIBIT E
Settlement Agreement
M
Page 48 of 93
SETTLEMENT AGREEMENT
AND FULL AND FINAL GENERAL RELEASE
This Settlement Agreement and Full and Final General Release (the "Settlement
Agreement') is entered into on this 12 day of January , 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 ("Lw
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 "CW') (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 Agreement" );
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
Agreement');
f. Purchase and Sale Agreement dated March 19, 2018, between JKM Central and
City (the "Central Purchase Agreement");
9. 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 Avy-reement");
j. Option Agreement dated March 19, 2018, between JKM South and City (the "South
Option Agr
-eemen
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
AgLeem
100549041.1 306.9903525
Page 49 of 93
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" );
in. 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
rkm L Easement");
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 Easement" ; and,
q. The Complaint for Declaratory Relief, Case No. 2020-CA-01278OXXXXMB filed
in Palm Beach County Circuit Court in West Palm Beach, Florida (the
" Comllaint") 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 A items (1) through (n) are referred to herein as the "Related
Documents," items (o) and (p) are referred to as the "TTemtorar Parkin Easements, and all of
_w... '
_.... nts."
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,
Parcels which were sold to certain of the JKM Parties by the City pursuant to terms
the `BTSW Pa„mrm
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.
{00548043.1 306-9905525 } 2
Page 50 of 93
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 Continaent. 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;
cO theprposed purchaser (the Purchaser") of the BTS Parcels pursuant to the
m
Contract, and the City, have executed a new Development Agreement for the BTS Parcels
(the "New De„yeloment Aweement") 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 51 of 93
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 Pa inents.
(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 Attorneys"), 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 Pant") 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 E21, 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 "E2L Lawsuit"). At
any time after the Effective Date, the City may present to the JKM Parties a notice (each, an
"IncentivewPavi°gent 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 52 of 93
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 A&ggMents. 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
(collectively, "Terminated.www_„AZrggments"). From and after
Related Documents or otherwise collectivel them___
the Effective Date of this Settlement Agreement, the Terminated Agreements shall have no further
force and effect.
7. The ......
_T_W erminated 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 Obligations"), are hereby
fully and forever fulfilled, extinguished, terminated, released, waived, and discharged without any
further action by the Parties.
8. TemJ oraj LgkingvEasements. 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
;00548043.1306-99055251 5
Page 53 of 93
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 Parent or Compensation Due. The Parties agree that, other than the
Sale Payment, the Incentive Payment (if many), 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.
Release of the Cit. Effective from and after the Effective Date in
11. General..vw_..............�._�.....wwwwwwwwwwwwwwwwwwwwwwwww.. >
exchange for the Consideration set the
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 "Ci tywwReleased mPmarties"), 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 i 6
Page 54 of 93
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. City").
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 mJKM*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,
100548043.1 306-99055251
Page 55 of 93
accountants, insurers, predecessors, successors, assigns, relatives, and representatives of any kind
(collectively, the "JKM ReleasedwParties"), 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 Releaseofthe JKM „mParties").
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.
{00548043.1 306-9905525 } 8
Page 56 of 93
13. R,gITgsentat ons_and Warranties by the Parties.
(a) A. Parties. 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_Parti_es'
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 57 of 93
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, whether 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. VoluntarAgreement. 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. Authority to Settle and Release. As a condition precedent to any obligations or
liabilities of the Parties, each of the JK.M� 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 Sob -9905525) 10
Page 58 of 93
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. Atto�rneZs' Fees;, ExJwsenses, and Costs.
a Pi uteswNeg
() TM..otiation ofwSettle ent Agi;eement. The Parties agree that each
D....._ and
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.
Ob Enforcement of SettlementwA�mweement. 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, past 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. Governint,, 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
{00548043.1 306-9905525) 1 1
Page 59 of 93
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 on R resentat
p„ n,,,,............... tons. Each Party hereby warrants, represents, and agrees
.I.-
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 Agreement and Intetation 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. Severability. 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:
,'00545043.1 306-9905525 1 12
Page 60 of 93
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 Writing. 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 Attarney5.
(a) JKM Parties. 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) Inyestigatiop.hy 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.
{00548043.1 306-9905525 } 13
Page 61 of 93
32. Convmstruction. Words in this Settlement Agreement of the male, female, or neuter
. _u...
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. Headings. Headings are for convenience only and shall not limit, expand, affect,
or alter the meaning of any text.
34. Multiple Count
earts. 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 Sjzatures. 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. Bindi'n on Successors and Assigns. 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 62 of 93
IN WITNESS WHEREOF, I have hereunto set my hand and seal this e/r,:day of
2023.
CITY OF BOYNTON BEACH
TY PENW-RrvTAYOR
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me by means of/physical presence or Ei
I? 7-Ao(Mw
online notarization this day of
__, 2023, by Ty Penserga as Mayor of the CITY
OF BOYNTON BEACH. He/She personally appeared before me, is ally known to me or
.... . ... ... ...................
produced, .. .. ...... ___11111111 ....... as identification.
.... . ... yWIL
81N�NN 156701W
cow
ema
Notary Public, State of
My Commission Expires:
Notary Seal:
(00548043.1 306-9905525 ) 15
Page 63 of 93
2023.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 12- day of January,
JKM BTS CENTRAL, LLC, a Florida limited
liability company
By: JKM BTS CAPITAL, LLC, a Florida
limited liability company, its Manager
By:/
1 7 arkey, Manager
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me by means of 1Z physical presence or El
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 BT li� L LLC,
10
0�
w
wn t
to me
a Florida limited liability company. He personally appeared before me, i personally known o me,
or produced as identification. `L�
N7]RP•
S#%,
Johnrvn
Printed Name
Notary Public, State of �L
My Commission Expires:
Notary Seal:
- E :Notary Public State of Florida
I da
A Jeff L Johnson
jj1jTjt=
My
YHCH02m6millsion
=A Exp. 6/ 1 V2022D6
Page 64 of 93
2023.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this � 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:
i 1h1 Markey, Manager
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me by means of Ry physical presence or 0
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--SaUIj:j LLC a
Florida limited liability company. He personally appeared before me, i� �ersonallyl�;�o;n to ��e,
or produced as identification.
gre-YRIVEW,
Si at >�' V
khncun
Printed Name
Notary Public, State of CL,
My Commission Expires:
Notary Seal:
Notary Public State of Florida
A Jeff L Johnson
My Commission
=fillh= H H 261757
E Exp. 6112/2026 71
W up "F
Page 65 of 93
2023.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this IS day of January,
JKM BTS NORTH, LLC, a Florida limited
liability company
By: JKM BTS CAPITAL, LLC, a Florida
limited liability company, its Manager
Jo ri arkiy—,Manager
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me by means of R physical presence or El
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 LLC, a
Florida limited liability company. He personally appeared before me is ersonnfally nknown�to �me.
or produced as identification.
ORYKIK"
Sig�ao
Printed Name
Notary Public, State of G
My Commission Expires: Z/12L2026
Notary Seal:
Notary Public State of Florida
A Jeff L Johnson
aW
It. %Commission
d
H 261757
Exp. 6/12/2026
Page 66 of 93
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
By: '4 1
Mar ey, Manager
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me by means of FZ physical presence or 0
online notarization this It 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 t2Z-
,e)or produced as identification.
N7A
r�
— , j
Printed Name
Notary Public, State of
My Commission Expires: 61121102,6
Notary Seal:
Notary Public state of Florida
A
Jeff L Johnson
M
IIII cm 2617 5 7ommission
EXP. 6/12/2026
Page 67 of 93
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 12 day of January,
2023.
JKM BTS CAPITAL, LLC, a Florida limited
liability company
0
STATE OF FLORIDA
COUNTY OF PALM BEACH
, Manager
The foregoing instrument was acknowledged before me by means of Fxl physical presence or 0
online notarization this I � 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
� or produced as identification.
NOTARY;
Sioatii9k V
— i6f L- ljohvi5ovl
Printed Name
Notary Public, State of
My Commission Expires:
Notary Seal:
A Notary Public State of Florida
MZll Jeff L Johnson
e
.... tZ MY COMM261757ission
H H
Exp. 6/12/2026
Page 68 of 93
01885343-2
EXHIBIT F
Existing Infrastructure/Adjacent Existing Infrastructure
-29-
Page 69 of 93
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