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R23-008
1 RESOLUTION R23-008 2 3 A RESOLUTION OF THE CITY OF BOYNTON BEACH, FLORIDA, 4 APPROVING AND AUTHORIZING THE MAYOR TO SIGN A 5 SETTLEMENT AGREEMENT BETWEEN IN THE CASE OF THE CITY 6 OF BOYNTON BEACH, A FLORIDA MUNICIPAL CORPORATION, 7 PLAINTIFF, VS. JKM BTS CAPITAL, LLC, DEFENDANT - PALM 8 BEACH COUNTY CIRCUIT COURT CASE NUMBER: 50- 9 2020CA012780-XXXX-MB; AUTHORIZING THE PROPER CITY 10 OFFICIALS TO TAKE ALL ACTIONS NECESSARY TO EFFECTUATE 11 THE SETTLEMENT AGREEMENT; AND PROVIDING AN 12 EFFECTIVE DATE. 13 14 WHEREAS, the City of Boynton Beach is the Plaintiff in litigation seeking a declaratory 15 judgment in the case of the City of Boynton Beach, a Florida municipal corporation, Plaintiff, vs. 16 JKM BTS CAPITAL, LLC, Defendant - Palm Beach County Circuit Court Case Number: 50- 17 2020CA012780-XXXX-MB;and 18 WHEREAS, the parties have met during mediation and discussions and have reached a 19 settlement of the matter; and 20 WHEREAS, the City Commission has determined that it is in the best interests of the 21 residents of the City that the proper city officials are authorized to take such actions necessary 22 to effectuate the intent of this resolution. 23 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF 24 BOYNTON BEACH, FLORIDA, THAT: 25 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as 26 being true and correct and are hereby made a specific part of this Resolution upon adoption 27 hereof. 28 Section 2. The City Commission hereby approves the settlement and authorizes the 29 Mayor to sign a Settlement Agreement in the case of the City of Boynton Beach, a Florida S:\CA\RESO\Agreements\Approve JKM Settlement-Reso.Docx 30 municipal corporation, Plaintiff, vs. JKM BTS CAPITAL, LLC, Defendant - Palm Beach County 31 Circuit Court Case Number: 50-2020CA012780-XXXX-MB. A copy of the Agreement is attached 32 hereto and incorporated herein by reference as Exhibit "A". 33 Section 3. The proper City Officials are authorized to take all actions necessary to 34 effectuate this Agreement. 35 Section 4. This Resolution shall become effective immediately upon passage. 36 PASSED AND ADOPTED this 3rd day of January, 2023. 37 CITY OF BOYNTON BEACH, FLORIDA 38 39 YES NO 40 Mayor—Ty Penserga 41 42 Vice Mayor—Angela Cruz _LL 43 44 Commissioner—Woodrow L. Hay 45 46 Commissioner—Thomas Turkin 47 48 Commissioner—Aimee Kelley 49 50 VOTE 51 52 53 ATT / 54 �, /LOP"55 ,. � 56 Mayle: D: esus, MPA, C Ty P- - - 57 City CI •r .yor 58 = 0V N TON. � •....... 6' cz;•S oRolt ... 59 ki APP D AS To FO'7 1: 60 (Corporate Seal) %I: SEAL '_��, 61 / S INCORPORATED; 62 pit 1920 ; Michael D. Cirullo,Jr. 63 ' •'• City Attorney �� 64 ``‘• FLOR��P S:\CA\RESO\Agreements\Approve 1KM Settlement-Reso.Docx 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 ("JKM Central") (collectively, "JKM Parties"), and City of Boynton Beach, Florida, a municipal corporation of the State of Florida (including its officials, offices, commission, boards, departments, and divisions, the "City") (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"); g. Parking License Agreement dated March 19,2018,between JKM Central and City (the"Central Parking Agreement"); h. Purchase and Sale Agreement dated March 19, 2018,between JKM South and City (the"South Purchase Agreement"); i. Parking License Agreement dated March 19, 2018, between JKM South and City (the"South Parking Agreement"); j. Option Agreement dated March 19,2018,between JKM South and City(the"South Option Agreement"); k. Termination of Option Agreement dated December 18, 2018,between JKM South and City, and recorded at Official Records Book 30335 Page 0773 of the Public Records of Palm Beach County, Florida (the "South Option Termination Agreement"); 10054t043.1 306.9905525) 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"LOP'); m. Letter Memorandum of Understanding— Parcels 1, 2, 3, and 4 of Boynton Beach Town Square from JKM North and JKM Central to City dated November 30, 2018 (the"MOU"); n. Letter from Colin D. Groff,Assistant City Manager, on behalf of the City, to JKM Capital, dated December 17, 2019, and all allegations contained or referenced therein(the"Groff Letter"); o. Temporary Parking Easement Agreement dated November 10,2020,between JKM Capital, JKM North, and City, and recorded at Official Records Book 31962 Page 1434 of the Public Records of Palm Beach County, Florida(the"North Temporary Parking 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 Parking Easement"); and, q. The Complaint for Declaratory Relief,Case No. 2020-CA-012780XXXXMB filed in Palm Beach County Circuit Court in West Palm Beach, Florida (the "Complaint")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 Agreements," items (1) through (n) are referred to herein as the "Related Documents,"items (o) and (p) are referred to as the"Temporary Parking Easements," and all of items (a)through(n) are referred to as the"Documents." WHEREAS, the Documents, the Complaint, and the Lawsuit relate to certain real estate now known as Parcels 2,3,and 7,Boynton Beach Town Square,according to the plat thereof as recorded in Plat Book 127,Page 1,Public Records of Palm Beach County,Florida(collectively, the"BTS Parcels"), which were sold to certain of the JKM Parties by the City pursuant to terms set forth in certain of the Documents; and WHEREAS, to avoid the costs and expenses of litigating the Disputes and the uncertain costs surrounding the Disputes,and in order to allow for the applicable parties to proceed with development of the BTS Parcels and proceed with construction of improvements thereon,the Parties desire to compromise and settle the Disputes and all other obligations between and among the Parties as set forth in this Settlement Agreement; and WHEREAS, it is the desire of the Parties to terminate any and all existing contractual or other obligations between the JKM Parties and the City and/or any of their affiliates or subsidiaries in any transactions between or among any of them; and WHEREAS, it is the desire of the Parties to resolve the Disputes and any obligations between or among them without admitting fault or otherwise acknowledging liability of any kind in connection with the Disputes,or otherwise. (00548043.1 306-9905525) 2 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 Contingent. The effectiveness of this Settlement Agreement,including the obligations to exchange the Consideration(as defined hereafter), including the payment of the Sale Payment (as defined hereafter) and the Incentive Payment (as defined hereafter), if any, is contingent upon the following conditions precedent: (a) the successful sale by one or more of the JKM Parties of the BTS Parcels (the "Sale", and the contract for such Sale,the"Contract"); (b) payment of the Sale Payment as set forth in Section 5; (c) the proposed purchaser (the "Purchaser") of the BTS Parcels pursuant to the Contract,and the City,have executed a new Development Agreement for the BTS Parcels (the"New Development Agreement")which includes(or requires via separate document) a requirement for the Purchaser to provide to the City parking spaces(which may be used by the City for City purposes or for public parking purposes) in a location and amount reasonably acceptable to the City and the Purchaser; and (d) that the Temporary Parking Easements will be assigned or replaced effective simultaneously with the effectiveness of the New Development Agreement such that there shall be no interruption in the City's ability to use the applicable parking easement areas. For avoidance of doubt, in the event the Temporary Parking Easements are to be replaced (rather than assigned) in connection with the New Development Agreement, the Temporary Parking Easements shall not be terminated until such replacement agreements are fully executed and enforceable. The date on which the last of the requirements in Paragraphs 2(a),(b),(c),and(d)above have been fulfilled shall be referred to as the"Effective Date"herein. Notwithstanding the execution of this Settlement Agreement, the Parties have not agreed to stay any proceedings under the Lawsuit and/or with respect to the Complaint, and the Parties contemplate that the Lawsuit will proceed unless and until the Effective Date has occurred or the Lawsuit has been dismissed by the City, with or without prejudice. Notwithstanding anything to the contrary in this Settlement Agreement, if at any time the Contract shall be terminated by any party thereto,the JKM Parties shall promptly advise the City of such termination in writing (the "Termination Notice"), and upon delivery of the Termination Notice, neither party shall thereafter have any further obligation under this Settlement Agreement (but the same shall not serve to negate or invalidate any representation or warranty given by any party pursuant to this Settlement Agreement). 3. Dismissal. Within five(5)business days following the Effective Date as hereafter set forth in Section 5(a), the Parties shall file a joint stipulation of dismissal with prejudice of all (00548043.1 306-9905525} 3 claims pending in the Lawsuit,with each Party to bear their own fees and costs,and with the Court in which the Lawsuit is pending to retain jurisdiction to enforce the terms of this Settlement Agreement. 4. Consideration. The parties,by the terms of this Settlement Agreement,have agreed to the exchange of consideration in the form of the Sale Payment, the Incentive Payment, the agreements regarding the Terminated Agreements (as defined below) and the Terminated Obligations (as defined below), the general releases set forth in this Settlement Agreement, and the other representations, warranties, covenants and other provisions set forth in this Settlement Agreement (all of the foregoing, the "Consideration"). Each of the Parties hereto acknowledges and agrees that, as applicable, the portion of the Consideration it will receive is sufficient in exchange for the applicable portion of the Consideration it will provide to the other Parties. The Parties hereby acknowledge and agree that the exchange set forth in this Settlement Agreement reflects a mutual compromise and constitutes an exchange of valuable consideration. Each of the Parties agrees that this is a material inducement to the other Parties entering into this Settlement Agreement. 5. Settlement Payments. (a) Upon closing of the Sale of all of the BTS Parcels, the JKM Parties will cause the closing agent with respect to such Sale to pay from the closing proceeds of the Sale to the trust account of the City's attorneys,Goren Cherof Doody&Ezrol, P.A., on behalf of and for the benefit of City, the total sum of Four Million Five Hundred Thousand Dollars and No Cents ($4,500,000.00) (the "Sale Payment") in U.S. currency via wire transfer in accordance with the wire transfer instructions to be later provided by the City. (b) As a further incentive and strictly as an accommodation to the City,the JKM Parties agree to pay to the trust account of the City's attorneys,Goren Cherof Doody&Ezrol,P.A. (the"City 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 Payment") in U.S. currency via wire transfer in accordance with the wire transfer instructions to be later provided by the City. The Incentive Payment is to be used to defray the fees and costs incurred by the City from and after the Execution Date in defending that certain lawsuit styled E2L Real Estate Solutions, LLC v. City of Boynton Beach, JKM Developers, LLC, et al., Case No. 50-2022-CA- 006010 (15th Judicial Circuit in and for Palm Beach County, Florida) (the "E2L Lawsuit"). At any time after the Effective Date, the City may present to the JKM Parties a notice (each, an "Incentive Payment 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 {00548043.1 306-9905525) 4 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 E2L Lawsuit be fully and finally concluded prior to the City incurring$100,000.00 in fees and costs defending the E2L Lawsuit,the JKM Parties will only be obligated to reimburse the City for the amount actually incurred, even though such amount is less than$100,000.00. Furthermore, any attempt to deliver an Incentive Payment Notice prior to the occurrence of the Effective Date shall have no effect,and the JKM Parties shall not have any obligation to make any payment with respect to any such attempted notice. (c) The City's attorneys shall be authorized to release the Sale Payment and the Incentive Payment to City only upon the filing of the Joint Stipulation of Dismissal described in Paragraph 3 of this Settlement Agreement. (d) For the avoidance of doubt,the Sale Payment and the Incentive Payment,if any, shall only become due and payable, if ever, following satisfaction of all conditions set forth in Section 2 of this Settlement Agreement. 6. Termination of Relevant Agreements. Effective from and after the Effective Date, the Parties do hereby terminate,release,extinguish,discharge,and waive any and all present and/or continuing duties and obligations of or between the City and the JKM Parties, whether oral or in writing, if any, related to or arising from or in connection with the Relevant Agreements, the Related Documents, or otherwise (collectively, the "Terminated Agreements"). From and after the Effective Date of this Settlement Agreement,the Terminated Agreements shall have no further force and effect. 7. The Terminated Obligations. The Parties hereby agree that, with the exception of the continuing obligations set forth in this Settlement Agreement that survive after the Effective Date, effective from and after the Effective Date, all present and/or continuing duties and obligations of the City to the JKM Parties, or of the JKM Parties to the City, as applicable, under any contract or agreement they previously had or presently have with one another as of the execution of this Settlement Agreement, whether oral or in writing, if any, including, but not limited to, the Terminated Agreements (collectively, the "Terminated Obligations"), are hereby fully and forever fulfilled,extinguished,terminated,released,waived,and discharged without any further action by the Parties. 8. Temporary Parking Easements. City warrants and represents to JKM Parties that (i) the Temporary Parking Easements are not subject to any credits, charges, claims, defenses, or rights of offset or deduction of any kind or character whatsoever; and (ii)there do not exist with respect to the Temporary Parking Easements any defaults or circumstances which, with the passage of time,would constitute defaults under the terms of such Temporary Parking Easements. City releases and discharges JKM Parties from any and all claims and causes of action under the Temporary Parking Easements,whether known or unknown and whether now existing or hereafter arising,that have at any time been known,or that are hereafter known,in tort or in contract by the )00548043.1 306-9905525) 5 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 Payment or Compensation Due. The Parties agree that, other than the Sale Payment, the Incentive Payment (if any), and any other Consideration to be exchanged as specifically set forth in this Settlement Agreement effective from and after the Effective Date: (i) the City, and each of its current and former elected officials in their official capacities, principals, officers, directors, members, managers, partners, shareholders, employees, parent companies, subsidiaries, affiliates, agents, enrollers, attorneys, trustees, accountants, insurers, predecessors, successors, assigns,relatives,and representatives of any kind do not owe any amounts or sums to the JKM Parties of any kind or type, including, without limitation, taxes, attorneys' fees, costs, expenses,and/or damages;and(ii)the JKM Parties,and each of their current and former principals, officers, directors, members, managers, partners, shareholders, employees, parent companies, subsidiaries, affiliates, agents, enrollers, attorneys, trustees, accountants, insurers, predecessors, successors, assigns,relatives,and representatives of any kind do not owe any amounts or sums to the City of any kind or type,including, without limitation,taxes, attorneys' fees, costs, expenses, and/or damages. 10. Tolling. The Parties agree that any statute of limitations relating to any claims against each other,including,but not limited to,any claims by either Party against the other Party for breach of the Development Agreement,shall be tolled as of the Execution Date until the earlier of(a)the Sale and the payment of the Sale Payment provided for in Section 5(a),or(b)two months after delivery of the Termination Notice; or(c) 12 months from the Execution Date. 11. General Release of the City. Effective from and after the Effective Date, in exchange for the Consideration set forth in this Settlement Agreement, each of the JKM Parties, and their current and former members, managers, officers, directors, partners, agents, employees, contractors, consultants, heirs, administrators, executors, attorneys, consultants, trustees, accountants, insurers, predecessors, successors, assigns, and representatives of any kind, if any, and for all those who may have the right to claim by, through, or under them or on their behalf in any form of derivative or representative action, shall and hereby do generally release, acquit, and forever discharge the City, jointly and individually as to each of them, together with their respective current and former elected officials, principals, officers, directors, partners, members, managers, shareholders, employees, agents, parent companies, subsidiaries, affiliates, attorneys, trustees,trusts,trustors,settlors,accountants,insurers,predecessors,successors,assigns,relatives, and representatives of any kind (collectively, the "City Released Parties"), from and against any and all liability which they now have,have had,or may have,and from all claims,demands,liens, actions, administrative proceedings, and causes of action of every kind and nature, and from all damages, injuries, losses, contributions, indemnities, compensation, obligations, costs, attorneys' fees, and expenses of every kind and nature whatsoever, whether known or unknown, fixed or contingent,direct or indirect,whether in law or in equity,whether asserted or unasserted,whether sounding in tort or in contract, whether or not related to or arising from the BTS Parcels, the Documents,the Disputes, the Terminated Agreements, the Terminated Obligations, or issues that were raised or could have been raised in the Lawsuit,including,but not limited to,causes of action for violation of any state, federal, or international statutes,rules,or regulations,including,but not limited to, the laws of Florida, conversion, breach of contract, breach of third-party beneficiary contract, prima facie tort, bad faith, fraud, intentional fraud, constructive fraud, fraudulent 100548043.1 306-9905525 1 6 inducement, misrepresentation, fraudulent misrepresentation, intentional misrepresentation, negligent misrepresentation, false advertising,marketing fraud,bad faith refusal to pay, bad faith refusal to investigate, an accounting, declaratory judgment, unjust enrichment, deceptive advertising and/or unfair or unlawful trade practices,failure of consideration,rescission,failure to disclose, commissions, suppression, fraudulent suppression, fraudulent concealment, concealment, conspiracy, civil conspiracy, pattern and practice, racketeering, fraudulent non- disclosure, breach of the duty of good faith and fair dealing, breach of fiduciary and trust duties, promissory estoppel, negligence, negligence per se, breach of implied contract, professional negligence, gross negligence, defamation, slander, libel, disparagement, wantonness, punitive damages, or any other tort or contract claim, any violation of any state or federal law, any claim that any of the JKM Parties were fraudulently induced to enter into this Settlement Agreement or any other claim related to any of the JKM Parties' execution of this Settlement Agreement or to the BTS Parcels, the Documents, the Disputes, the Terminated Agreements, the Terminated Obligations, and/or any understanding or agreement or interaction between the Parties, whether written or oral (the"General Release of the 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 of the JKM 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,t7consultants, trustees, trusts, trustors, settlors, {00548043.1 306-9905525 accountants, insurers,predecessors, successors, assigns,relatives, and representatives of any kind (collectively, the"JKM Released Parties"), from and against any and all liability which they now have, have had, or may have, and from all claims, demands, liens, actions, administrative proceedings, and causes of action of every kind and nature,and from all damages,injuries,losses, contributions, indemnities, compensation, obligations, costs, attorneys' fees, and expenses of every kind and nature whatsoever, whether known or unknown, fixed or contingent, direct or indirect, whether in law or in equity, whether asserted or unasserted, whether sounding in tort or in contract,whether or not related to or arising from the BTS Parcels,the Documents,the Disputes, the Terminated Agreements, the Terminated Obligations, or issues that were raised or could have been raised in the Lawsuit,including,but not limited to,causes of action for violation of any state, federal, or international statutes, rules, or regulations, including, but not limited to, the laws of Florida,conversion,breach of contract,breach of third-party beneficiary contract,prima facie tort, bad faith, fraud, intentional fraud, constructive fraud, fraudulent inducement, misrepresentation, fraudulent misrepresentation, intentional misrepresentation, negligent misrepresentation, false advertising, marketing fraud, bad faith refusal to pay, bad faith refusal to investigate, an accounting, declaratory judgment, unjust enrichment, deceptive advertising and/or unfair or unlawful trade practices, failure of consideration, rescission, failure to disclose, commissions, suppression, fraudulent suppression, fraudulent concealment, concealment, conspiracy, civil conspiracy, pattern and practice, racketeering, fraudulent non-disclosure, breach of the duty of good faith and fair dealing, breach of fiduciary and trust duties, promissory estoppel, negligence, negligence per se, breach of implied contract, professional negligence, gross negligence, defamation, slander, libel, disparagement, wantonness, punitive damages, or any other tort or contract claim, any violation of any state or federal law, any claim that the City or any of its affiliates were fraudulently induced to enter into any of the Documents,this Settlement Agreement or any other claim related to the City's execution of this Settlement Agreement, or to the BTS Parcels, the Documents, the Disputes, the Terminated Agreements, the Terminated Obligations, and/or any understanding or agreement or interaction between the Parties, whether written or oral (the"General Release of the JKM Parties"). The General Release of the JKM Parties is specifically intended to include and does include claims that the City might not now know or expect to exist in their favor as of the execution of this Settlement Agreement, even if knowledge of such claims might have otherwise materially affected the granting of this General Release of the JKM Parties. The City represents and warrants that the General Release of the JKM Parties is executed and delivered by each of them based upon their respective independent analyses of the facts and circumstances. The City specifically acknowledges that such facts might hereafter prove to be different from the facts that are known or believed to exist. The City expressly assumes the risk that any state of facts might be different from those thought to exist by such Party or Parties or that such state of facts might hereafter change. The City agrees that the terms of the General Release of the JKM Parties will be binding in all respects notwithstanding any mistake of existing facts or subsequent change of facts, and this General Release of the JKM Parties will not be subject to termination or rescission by the City for any reason whatsoever. The General Release of the JKM Parties is intended to be a full release of all claims known and unknown. NOTWITHSTANDING THE FOREGOING, nothing in this Settlement Agreement is intended to release, and nothing in this Settlement Agreement shall release, any claims which arise under the terms of this Settlement Agreement. (00546043.1 306.9905525 1 8 13. Representations and Warranties by the Parties. (a) By JKM 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 City. The City hereby represents and warrants that(i)it is not relying upon any statements, understandings, representations, expectations, or agreements other than those expressly set forth in this Settlement Agreement,(ii)it has been represented and advised by counsel in connection with this Settlement Agreement, which each of them has executed voluntarily and of its own choice and not under coercion or duress, (iii)it has made their own investigation of the facts and are relying upon their own knowledge and the advice of legal counsel, (iv) it has no expectation that any of the other Parties will disclose facts material to the Settlement Agreement, and (v) it knowingly waive any claim that the Settlement Agreement was induced by any misrepresentation or non-disclosure and any right to rescind or avoid the Settlement Agreement based upon presently existing facts,known or unknown. The City agrees and stipulates that JKM Parties are relying upon these representations and warranties in entering into the Settlement Agreement. 14. No Admission of Fault or Liability. This Settlement Agreement is made to settle any and all controversies, real or potential, asserted or unasserted, and claims for injuries or damages of any nature whatsoever, real or potential, asserted or unasserted, by the Parties including but not limited to those relating in any way to the BTS Parcels,the Lawsuit,the Disputes, the Documents, the Terminated Agreements, the Terminated Obligations, or to the matters described herein or therein. Neither the execution and delivery of this Settlement Agreement,nor compliance with its terms, shall constitute an admission of any fault or liability on the part of any of the Parties, or any of their respective members, managers, officers, directors,partners, agents, employees, contractors, consultants, heirs, administrators, executors, attorneys, consultants, trustees, accountants, insurers,predecessors, successors, assigns, and representatives of any kind. None of the Parties to this Settlement Agreement admit fault or liability of any sort and, in fact, all Parties expressly deny fault and liability. 15. The Parties' Covenant Not to Sue. With respect to the subject matter herein, each of the foregoing releasing Parties (each as applicable, the"Releasor"), with respect to any of the actions or causes of action,suits,claims,charges,complaints,contracts,and promises,whatsoever, in law or equity released pursuant to Paragraphs 11 or 12, as applicable(collectively, "Claims"), waives its right to file any charge or complaint nor will it accept any relief or recovery from any charge or complaint before any federal, state or local administrative agency against any of the 100548043.1 306-9905525) 9 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. Voluntary Agreement. The Parties acknowledge that they have carefully read this Settlement Agreement and understand all of its terms and furthermore acknowledge that this Settlement Agreement is executed voluntarily,without duress,and with full knowledge of its legal significance. Each Party represents and warrants that it has consulted with its legal advisors regarding the meaning, effect and advisability of this Settlement Agreement to the extent such Party has determined such consultation to be necessary or appropriate. 18. Authority to Settle and Release. As a condition precedent to any obligations or liabilities of the Parties, each of the JKM Parties expressly represents and warrants to the City Released Parties that (a)as applicable,it is the lawful owner of the BTS Parcels and/or any claims and/or any potential claims released in this Settlement Agreement; (b) it has full capacity and authority to settle, compromise, and release its claims and potential claims and to enter into this Settlement Agreement; (c)no other person or entity has acquired or has been assigned, or will in {00548043.1306-99055251 10 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. Attorney's Fees, Expenses. and Costs. (a) Disputes and Negotiation of Settlement Agreement. The Parties agree that each Party shall be solely responsible for its own respective fees, attorney's fees, expenses, and other costs incurred in connection with the Disputes and the preparation, drafting, and negotiation of this Settlement Agreement. (b) Enforcement of Settlement Agreement. In conjunction with any litigation arising out of or concerning the interpretation of or enforcement of this Settlement Agreement, the prevailing party shall be entitled to recover from the non-prevailing party its reasonable attorney's fees,expenses,and costs,whether incurred before,during or after trial,on appeal or in conjunction with administrative,post judgment,or bankruptcy proceedings,including attorney's fees and costs included during any appeals. 20. Remedies. The parties agree that any action taken in contravention or violation of this Settlement Agreement (including, without limitation, any act prohibited pursuant to either Section 15 or Section 16)or any other breach or violation of this Settlement Agreement will cause irreparable harm and significant injury to the other Parties,as applicable,the amount of which will be extremely difficult to determine, thus making any remedy at law or in damages inadequate. Therefore,the parties agree that any Party and/or any applicable affiliate(s) shall have the right to apply to any court of competent jurisdiction for an order restraining any breach or threatened breach by any other Party of this Settlement Agreement and for any other relief deemed appropriate,and any Party seeking such an order will not be obligated to post bond or other security in seeking such relief. This right shall be in addition to any other remedy available to the Party seeking such order or relief, whether in law or equity. Notwithstanding the foregoing, nothing in this Settlement Agreement shall be considered a waiver of the City's rights of sovereign immunity. 21. Governing 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) 11 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 Representations. Each Party hereby warrants, represents, and agrees that each Party is relying upon only the representations and warranties contained in this Settlement Agreement in entering into this Settlement Agreement and that no other representations have been made by anyone upon which they are relying in executing this Settlement Agreement. All of the covenants,representations,and warranties set forth in this Settlement Agreement shall survive the execution of this Settlement Agreement indefinitely. 24. Further Assurances. The Parties shall execute, acknowledge, deliver, or cause to be executed, acknowledged, or delivered, all further documents as shall be reasonably necessary or convenient to carry out the provisions of this Settlement Agreement. 25. Entire Agreement and Integration 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: {00548043.1306-9905525 1 12 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 Attorneys. (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) Investigation by 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. (00540043.1 306-9905525) 13 32. Construction. Words in this Settlement Agreement of the male, female, or neuter gender shall be construed to include any other gender where appropriate. Words used in this Settlement Agreement that are either singular or plural shall be construed to include the other where appropriate. 33. Headings. Headings are for convenience only and shall not limit, expand, affect, or alter the meaning of any text. 34. Multiple Counterparts. 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 Signatures. 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. Binding 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] I (00548043.3 306.99055251 14 IN WITNESS WHEREOF, I have hereunto set my hand and seal this `o 7' 'daY of #,e , 2023. CITY OF BOYNTON BEACH / .%imp. �''"11-rAYOR STATE OF FLORIDA I COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me by means ofphysical presence or o online notarization this 6'~ day of J�✓Vi 4,t}/ ,2023,by Ty Penserga as Mayor of the CITY OF BOYNTON BEACH. He/She personally appeared before me, is personally known to me or produced as identification. NOT: RY AL.& oi., ___________,, ilf re \._ ____V I P, ted N ne 7,...,.;'.7s mbu�ain; Notary Public, State of rt /4/_ -�" eased My Commission Expires: iii Notary Seal: {00548043.1306-9905525 I 15 IN WITNESS WHEREOF,I have hereunto set my hand and seal this 12. day of January, 2023. JKM BTS CENTRAL,LLC, a Florida limited liability company By: JKM BTS CAPITAL, LLC, a Florida limited liability company, its Manager By/ �. — -- .,3 .o if arkey, Manager STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me by means of El physical presence or ❑ online notarization this 12- day of January, 2023, by John K. Markey, as Manager of JKM BTS CAPITAL, LLC,a Florida limited liability company,the Manager of JKM BTS ► '._• L LLC, a Florida limited liability company. He personally appeared before me, i•personally known to me, or produced as identification. NOTARY' SJ ].; Iif11/ll/.o Si:, . L o. it Printed Name Notary Public, State of C'L My Commission Expires: 6/12/Zo26 Notary Seal: Notary Public Stale of Florida AJeff L Johnson enMy Commission = E P 6 1252026 IN WITNESS WHEREOF,I have hereunto set my hand and seal this (2 day of January, 2023. JKM BTS SOUTH, LLC, a Florida limited liability company By: JKM BTS CAPITAL, LLC, a Florida limited liability company, its Manager By: Jo 10 . Markey, Manager STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me by means of❑k physical presence or ❑ online notarization this 1/. 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 LLC, a Florida limited liability company. He personally appeared before me, i ersonally known to me or produced as identification. NOTARY' I . Si4atl 14 L Johncor Printed Name Notary Public, State of FL, My Commission Expires: 61121Z02-b Notary Seal: ANotary Public State of Florida I Jeff L Johnson My Commission MI HH 261757 4 Exp. 6/12/2026 IN WITNESS WHEREOF, I have hereunto set my hand and seal this 12 day of January, 2023. 0 JKM BTS NORTH, LLC, a Florida limited liability company By: JKM BTS CAPITAL, LLC, a Florida limited liability company, its Manager By: Jo I Parke) V a ger STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me by means of© physical presence or ❑ online notarization this 12 day of January, 2023, by John K. Markey, as Manager of JKM BTS CAPITAL, LLC, a Florida limited liability company, the Manager of JKM BTS , I ; • LLC, a Florida limited liability company. He personally appeared before me sersonally known to me, or produced as identification. NOTARY 1114 Si4e re JL14 i_ JOh6SOn Printed Name Notary Public, State of CI- My Commission Expires: b/►2/202 Notary Seal: Notary Public Stale of Florida I A Jett L Johnson ► ' My CommissionHH 0 III Exp 6/12/2026 IN WITNESS WHEREOF,I have hereunto set my hand and seal this 12 day of January, 2023. JKM DEVELOPERS, LLC, a Florida limited liability company By: }— f _� J. . ar ey, Manager STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me by means of I1 physical presence or 0 online notarization this l2 day of January, 2023, by John K. Markey, as Manager of JKM DEVELOPERS, LLC, a Florida limited liability company. He personally appeared before me, is sonally known to mor produced as identification. N ARY: .ii , LJW Si_iiit U 1 1, . Jo1111sor Printed Name Notary Public, State of k- My Commission Expires: 6(12/2025 Notary Seal: A Notary Public State of Florida Jeff L Johnson ""'1111 MHH2617S7on Exp. 6/12/2026 • 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 AP By: i L Jo arkey,Manager STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me by means of ID physical presence or 0 online notarization this 1Z 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 c� sona y known to or produced as identification. N• RY- 1 1 1g Si a 4 14)111 / Jac L. Johnson Printed Name Notary Public, State of 'N... My Commission Expires: 6/1212026 Notary Seal: 4 Notary Public State of Florida 4 Jett L Johnson My Commission 4 1111 HH 261757 Exp. 6/12/2026