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R23-0121 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 RESOLUTION R23-012 A RESOLUTION OF THE CITY OF BOYNTON BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR TO SIGN AN AGREEMENT FOR THE EXCHANGE OF REAL PROPERTY BETWEEN THE CITY AND BOYNTON BEACH TOWN CENTER APARTMENTS, LLC; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Boynton Beach Town Center Apartments, LLC (BBTCA) is under contract to purchase real property generally located on the east side of the Town Center project site along Ocean Avenue (BBTCA Parcel); and WHEREAS, the City of Boynton Beach owns a parcel of land generally located at the intersection of Seacrest Avenue and Boynton Beach Boulevard (City Parcel); and WHEREAS, BBTCA is under contract to purchase the parcels owned by 1KM entities, subject to several conditions including settlement of the lawsuit between the City and 1KM, and obtaining certain development approvals from the City including, among other actions, a Development Agreement between the City and BBTCA; and WHEREAS, to facilitate its development plans, BBTCA has proposed exchanging the BBTCA Parcel for the City Parcel which would allow BBTCA to develop a project along the length of Boynton Beach Boulevard from Seacrest to NE 1st Street and allow the City to seek a hotel developer for the BBTCA Parcel, which is consistent with the original vision of the Town Square Development; and WHEREAS, the City Commission has determined that it is in the best interests of the residents of the City to approve and authorize the Mayor to sign an Agreement for the Exchange of Real Property between the City and Boynton Beach Town Center Apartments, LLC. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: Section 1. The foregoing "Whereas' clauses are hereby ratified and confirmed as being true and correct and are hereby made a specific part of this Resolution upon adoption hereof. 32 Section 2. The City Commission hereby approves and authorizes the Mayor to S:�AV SO0 greementtWpproveProperty Exchange Agreement With BBTCA- Reso.npcx 33 sign an Agreement for the Exchange of Real Property between the City and Boynton Beach 34 Town Center Apartments, LLC. A copy of the Agreement is attached hereto and incorporated 35 herein by reference as Exhibit 'A'. 36 Section 3. This Resolution shall become effective immediately upon passage. 37 PASSED AND ADOPTED this 17th day of January, 2023. 38 CITY OF BOYNTON BEACH, FLORIDA 39 40 YES NO 41 42 Mayor - Ty Penserga 43 ✓ 44 Vice Mayor -Angela Cruz 45 46 Commissioner — Woodrow L. Hay 47 48 Commissioner — ThomasTurkin ✓ 49 50 Commissioner—Aimee Kelley ✓ 51 52 53 54 55 ATT 56 _ 57 58 Mayle D 1 sus, MPA, MC 59 City Cl r 60 61 �NTOry 62 (Corporate Seal)00 OlS.0.pORA{'� 63 ti 7 1 64 _SEAL 65 v '; INCAR 20l 66 ti 19 67 n nR\Ot VOTE Ty Pe May APPROVED AS TO Michael D. Cirullo, Jr City Attorney S1CAU SOWgmementMpprove Properly Excbenge Agreement With BBXA-Reso.Wex 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) 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. {00549748.1306-9905263) -2- 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- 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- 11. Risk of Loss. If, prior to Closing, either Parcel, or any part thereof, shall be condemned or transferred in lieu of condemnation or become the subject of pending or threatened condemnation proceedings, then the affected Party shall so notify the other Party in writing, and: (a) Moor Loss. If such event would (in the affected Party's reasonable opinion) materially and adversely affect the affected Party's ability to develop its Parcel as intended (the City Parcel as a multifamily community; the BBTCA Parcel as a hotel), then the affected Party shall have the option either to (x) terminate this Agreement by giving written notice to the other Party within ten (10) days after receiving notice thereof or (y) consummate the transaction contemplated by this Agreement notwithstanding such condemnation. If either Party elects to terminate this Agreement, both parries hereto shall thereafter be released from all further obligations each to the other hereunder except the Parties shall not be released from those obligations which survive the termination of this Agreement. If the affected Party elects to consummate the transaction contemplated by this Agreement, then the Affected Party shall be entitled to (and the other Party shall assign to the affected Party all of the other Party's interest in, of and to) condemnation payments, awards and settlements. In the event the affected Party fails to notify Seller of its election of either Paragraph 11(a)(x) or Paragraph 11(a)(y) within the appropriate time period set forth above, then Buyer shall be conclusively deemed to have elected Paragraph 1 I (a)(y). 12. Assignment: Successors and Assigns. This Agreement is personal to the Parties and not assignable by either without the consent of the other; provided, however, that BBTCA may assign this contract to its affiliate upon 20 days notice to the City. 13. Aoylicable Law and Venue. This Agreement is to be construed and enforced according to the laws of the State of Florida. Venue shall be in Palm Beach County, Florida. 14. Notices. All notices herein required shall be in writing. Whenever any notice, demand or request is required or permitted hereunder, such notice, demand or request shall be hand -delivered personally or sent by express mail or courier service or by email or by fax to the addresses set forth below: As to BBTCA: c/o Time Equities, Inc. 55 Fifth Avenue 15th Floor New York, NY 10003 ATTN: Robert Singer, Director of Development Melinda Rubenstein, Esq., General Counsel rsinger Aimeequities.com innibenstein(i)timeeciuities. com With a copy to: Greenspoon Marder LLP 200 E. Broward Blvd., Suite 1800 Fort Lauderdale, FL 33301 ATTN: Mark J. Lynn, Esq. mark.l rnns4,gmlaw.com (00549748.1306-9905263 ) -5- As to the City: City of Boynton Beach 100 E. Ocean Avenue Boynton Beach, FL 33435 ATTN: Dan Dugger, City Manager With a copy to: Michael Cirullo, Jr. Goren Cherof Doody and Ezrol, PA 3099 East Commercial Boulevard Suite 200 Fort Lauderdale, FL 33308 MCirulloti,worencherof col Kathryn Rossmell Lewis, Longman & Walker, PA 360 S. Rosemary Avenue Suite 1100 West Palm Beach, FL 33401 lossmelliilllw-law. coni Any notice or demand to be given hereunder shall be deemed sufficiently given for all purposes hereunder (1) at the time such notices or demands are hand -delivered, or (2) upon receipt or refusal of delivery if sent by reputable overnight courier service or (3) upon sending by email provided the sending does not receive a message signaling an error in delivery. Any Party hereto may change its address by notice in writing to the other parties in the manner herein provided. Counsel for either Party may provide notices for their respective clients. 15. Time. Time is of the essence of this Agreement, provided that if any date upon which some action, notice or response is required of any party hereunder occurs on a weekend or national holiday, such action, notice or response shall not be required until the next succeeding business day. 16. Entire Agreement. This Agreement contains all of the agreements, representations, and warranties of the parties hereto and supersedes all other discussions, understandings or agreements in respect to the subject matter hereof. 17. Construction,. This Agreement shall not be construed more strictly against either party by virtue of the preparation of this Agreement. This Agreement may be executed in counterparts, each of which shall be an original and both of which shall constitute one and the same agreement. This Agreement may be signed electronically or by e-mail. 18. AS IS. EXCEPT AS SPECIFICALLY SET FORTH HEREIN AND IN THE CLOSING DOCUMENTS, IT IS UNDERSTOOD AND AGREED THAT EACH PARTY DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESSED OR IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR REPRESENTATIONS AS TO MATTERS OF TITLE, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL CONDITIONS, VALUE, OPERATING HISTORY, OR ANY {00549748.13o6-99052631 —6— 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- 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: Print Name: ,,o ku'rf Title: 011,1 VA Date: V1 (/L(", "CITY„ CITY OF BOYNTON BEACH AF By: .------------------- Print Name: U Title. Date: {00549748.13o6-9905263 ) -8- 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. 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.