R23-024 1 RESOLUTION R23-024
2
3 A RESOLUTION OF THE CITY OF BOYNTON BEACH, FLORIDA,
4 APPROVING AND AUTHORIZING THE MAYOR TO SIGN THE
5 ESCROW AGREEMENT AND ANY AND ALL DOCUMENTS
6 ASSOCIATED THEREWITH BETWEEN THE CITY OF BOYNTON
7 BEACH AND BOYNTON BEACH TOWN CENTER
8 APARTMENTS, LLC., AND GOREN, CHEROF, DOODY &
9 EZROL, P.A., AS ESCROW AGENTS; AND PROVIDING AN
10 EFFECTIVE DATE.
11
12 WHEREAS, Boynton Beach Town Center Apartments, LLC (BBTCA) BBTCA is under
13 contract with JKM BTS North, LLC, a Florida limited liability company, JKM BTS Central, LLC,
14 a Florida limited liability company and JKM BTS South, LLC, a Florida limited liability company
15 (together, "JKM") to acquire a portion of Property; and
16 WHEREAS, in connection with the prospective development of that project commonly
17 known as Boynton Beach Town Square the City and BBTCA have executed the following
18 agreements: Development Agreement by City and BBTCA ("Development Agreement"),
19 Temporary Parking Easement Agreement by City and BBTCA ("Temporary Parking
20 Easement"), and Continuing Parking Lease Agreement (together, the "Escrow Documents);
21 and
22 WHEREAS, the City and BBTCA have agreed that the Escrow Documents shall be
23 binding on the parties and released by the Escrow Agent, Goren, Cherof, Doody& Ezrol, P.A.,
24 only upon the occurrence of the Closings and upon compliance with the specific terms and
25 conditions; and
26 WHEREAS, the City Commission has determined that it is in the best interests of the
27 residents of the City to approve and authorize the Mayor to sign the Escrow Agreement and
28 any and all documents associated therewith between the City of Boynton Beach and Boynton
29 Beach Town Center Apartments, LLC., and Goren, Cherof, Doody & Ezrol, P.A., as Escrow
30 Agents.
31 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF
32 BOYNTON BEACH, FLORIDA, THAT:
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33 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as
34 being true and correct and are hereby made a specific part of this Resolution upon adoption
35 hereof.
36 Section 2. The City Commission hereby approves and authorizes the Mayor to
37 sign the Escrow Agreement and any and all documents associated therewith between the
38 City of Boynton Beach and Boynton Beach Town Center Apartments, LLC., and Goren, Cherof,
39 Doody & Ezrol, P.A., as Escrow Agents. A copy of the Escrow Agreement is attached hereto
40 and incorporated herein by reference as Exhibit "A".
41 Section 3. This Resolution shall become effective immediately upon passage.
42 PASSED AND ADOPTED this 21st day of February, 2023.
43 CITY OF BOYNTON BEACH, FLORIDA
44
45 YES NO
46
47 Mayor—Ty Penserga
48
49 Vice Mayor— Angela Cruz
50
51 Commissioner— Woodrow L. Hay
52 r
53 Commissioner— Thomas Turkin ND ursyc.C\itf"1/4-L° `
54
55 Commissioner— Aimee Kelley t/
56
57 VOTE
58
59 ATTE •
60 � r
61 ,� � 1 / / tet
62 Maylee ue -•us, MPA MC Ty Pen -rsr:
63 City Clerk Mayor
64
65 �'��...�.N.TON1‘�� APP 'OVED AS TO,FORM:
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68 i : D INCORPORATEi
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69 '% 1920 s
Michael D. Cirullo, Jr.
7011�-‘‘‘ FLORIOP
City Attorney
S:\CA\RESO\Agreements\Approve Escrow Agreement With BBTCA-Reso.Docx
ESCROW AGREEMENT
This Escrow Agreement (the "Agreement"), is entered into this r day of
rn a"L'n , 2023, among CITY OF BOYNTON BEACH, FLORIDA ("City") BOYNTON
BEACH TOWN CENTER APARTMENTS, LLC, a Florida limited liability company
("BBTCA"), and Goren, Cherof, Doody & Ezrol, P.A., a Florida Profit Corporation ("Escrow
Agent").
WITNESSETH:
WHEREAS, in connection with the prospective development of that project commonly
known as Boynton Beach Town Square bounded generally by Seacrest Blvd., E. Boynton Beach
Blvd., SE 2"d Avenue and NE 1st Street in Boynton Beach, Florida, (the "Property"), City and
BBTCA have executed the following agreements:
a. Development Agreement by City and BBTCA("Development Agreement") (one
original),
b. Temporary Parking Easement Agreement by City and BBTCA ("Temporary Parking
Easement")(two originals),and
c. Continuing Parking Lease Agreement(two originals)
together,the"Escrow Documents"; and
WHEREAS, BBTCA is under contract with JKM BTS North, LLC, a Florida limited
liability company, JKM BTS Central, LLC, a Florida limited liability company and JKM BTS
South, LLC, a Florida limited liability company (together, "JKM") to acquire a portion of the
Property,the closing of which is anticipated to occur on or before December 31,2023 (the"JKM
Closing"); and
WHEREAS, prior to entering into this Agreement City and BBTCA have entered into
that certain Land Swap Agreement pursuant to which, City will convey certain City-owned
property to BBTCA in exchange for which BBTCA will simultaneously convey a portion of the
property acquired from JKM to City (the "Land Swap Closing"), which closing shall occur
simultaneously with the JKM Closing(the JKM Closing and the Land Swap Closing are referred
to together as the"Closings");and
WHEREAS, JKM and City are in litigation regarding the terms of a prior development
agreement between those parties in the case styled City of Boynton Beach v. JKM BTS Capital,
LLC, Case No. 502020CA012780XXXXMB; which litigation will be fully resolved by the
agreed terms of the Settlement Agreement, which Settlement Agreement is contingent upon the
JKM Closing, the execution of the Development Agreement, and the Temporary Parking
Easement becoming effective simultaneous with the effective date of the Development
Agreement;and
WHEREAS, City and BBTCA have agreed that the Escrow Documents shall be binding
on the parties and released by Escrow Agent only upon the occurrence of the Closings and upon
compliance with the following terns and conditions.
NOW, THEREFORE, in consideration of the foregoing premises and for other good and
valuable consideration, the receipt and adequacy of which are hereby acknowledged, and upon
01888469.3 Escrow Agreement-Boynton Beach project:51781462_I
and subject to the terms, provisions and conditions hereinafter set forth, City and BBTCA and
Escrow Agent hereby agree as follows:
1. Recitals. The Recitations set forth above are incorporated herein by this
reference.
2. Receipt by Escrow Agent. Escrow Agent hereby acknowledges receipt of the
Escrow Documents.
3. Release of Escrow Documents. Escrow Agent shall hold the Escrow Documents
in escrow until the Closings occur. The occurrence of the Closings shall be evidenced by
simultaneous execution and delivery to Escrow Agent of (i) a letter executed by BBTCA,
confirming that the JKM Closing has occurred and Escrow Agent is authorized to release the
Escrow Documents,and(ii)a joint letter executed by BBTCA and City, confirming that the Land
Swap Closing has occurred and Escrow Agent is authorized to release the Escrow Documents
(the "Confirming Letters"). Escrow Agent's receipt of the Confirming Letters via e-mail
delivery shall constitute irrevocable and conclusive authorization for Escrow Agent to
immediately release all of the Escrow Documents,as set forth below:
a. Development Agreement — An executed copy shall be delivered via e-mail to City
and BBTCA,with the original to be delivered to City via overnight delivery;
b. Temporary Parking Easement Agreement—shall be recorded by Escrow Agent in the
Public Records of Palm Beach County, Florida (after the recording of the applicable
documents for the Closings)and a recorded copy shall be delivered via e-mail to City
and BBTCA; and
c. Continuing Parking Lease Agreement — An executed copy shall be delivered via e-
mail to City and BBTCA,with the original to be delivered via overnight delivery to
City and one copy delivered via overnight delivery to BBTCA.
The Confirming Letters shall also serve as irrevocable and conclusive confirmation that
the Escrow Documents are binding and of immediate force and effect, and may be dated by
Escrow Agent on the same date as such Confirmation Letters are received by Escrow Agent.
4. Escrow Provisions. The Escrow Agent is acting as stakeholder only with respect
to the Escrow Documents. If there is any valid dispute as to whether the Escrow Agent is
obligated to release and record (as applicable), or continue to hold the Escrow Documents, the
Escrow Agent shall not take any further action, but in such event, the Escrow Agent shall hold
same until receipt by it of joint authorization in writing, directing the disposition of same
executed by City and BBTCA; or in the absence of such authorization, the Escrow Agent shall
hold the Escrow Documents until final determination of the rights of the applicable parties in the
appropriate proceedings. If such written authorization is not given or proceedings for such
determination are not begun within five(5)business days of written demand by Escrow Agent to
BBTCA and City and diligently continued, the Escrow Agent may bring an interpleader or other
court action as Escrow Agent deems appropriate. Any such court action must be brought in Palm
Beach County, Florida. The Escrow Agent shall be reimbursed by BBTCA and City (who shall
be jointly and severally responsible for such reimbursement)for all reasonable costs and expenses
of such action or proceeding, including, without limitation, reasonable attorneys' fees. Upon
completion of delivery of the recorded Escrow Documents to the appropriate parties, the Escrow
Agent shall have no further liability unless such delivery constituted willful misconduct or gross
01888469-3 Escrow Agreement-Boynton Beach project:51781462_I
negligence. This Agreement will expire when the Escrow Documents have been recorded (as
applicable)and delivered to the appropriate parties as set forth herein.
5. Liabilities of Escrow Agent. Escrow Agent shall be liable only to hold the
Escrow Documents received herewith and to hold, record (as applicable) and deliver them to the
appropriate parties in accordance with the provisions of this Agreement and any amendments
hereto, it is being expressly understood that by acceptance hereof Escrow Agent is acting in the
capacity of a depository only and shall not be liable or responsible to anyone for any damages,
losses,or expenses unless same shall be caused by its gross negligence or willful malfeasance.
6. Modification or Termination. This Agreement shall not be modified, revoked,
released, or terminated, except upon the mutual consent of City, BBTCA and Escrow Agent
given in writing and delivered to Escrow Agent subject to the provisions of Paragraph 7 hereof.
7. Resignation of Escrow Agent. Should, at any time, any attempt be made to
modify this Agreement in a manner that would increase the duties and responsibilities of Escrow
Agent, or to modify this Agreement in any manner that Escrow Agent shall deem undesirable, or
at any other time, Escrow Agent may resign by notifying the parties hereto in writing,by certified
mail to their respective addresses set forth below; and until the acceptance by a successor as
escrow agent as shall be appointed by such parties and delivery of the Escrow Documents to the
successor escrow agent, Escrow Agent's only remaining obligation shall be to perform its duties
hereunder in accordance with the terms of this Agreement.
8. Public Records. The City is a municipality subject to Chapter 119, Florida
Statutes. The Escrow Agent shall comply with Florida's Public Records Law. Specifically, the
Escrow Agent shall:
a. Keep and maintain public records required by the City to perform the Escrow
Agent's responsibilities described in this Agreement.
b. Upon request from the City's custodian of public records,provide the City with a
copy of the requested records or allow the records to be inspected or copied
within a reasonable time at a cost that does not exceed the cost provided in
Chapter 119,Florida Statutes,or as otherwise provided by law.
c. Ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed except as authorized by
law for the duration of the contract term and following completion of the contract
if the contractor does not transfer the records to the City.
d. Upon completion of the contract, transfer, at no cost, to the City all public
records in possession of the Escrow Agent or keep and maintain public records
required by the City to perform the service. If the Escrow Agent transfers all
public records to the City upon completion of the Agreement, the Escrow Agent
shall destroy any duplicate public records that are exempt or confidential and
exempt from public records disclosure requirements. If the Escrow Agent keeps
and maintains public records upon completion of the contract, the Escrow Agent
shall meet all applicable requirements for retaining public records. All records
stored electronically must be provided to the City, upon request from the City's
custodian of public records, in a format that is compatible with the information
technology systems of the City.
IF THE ESCROW AGENT HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO
01888469-3 Escrow Agreement-Boynton Beach project:51781462_1
THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT
(561)742-6060; 100 E. Ocean Avenue, Boynton Beach, Florida 33435; or
citvclerkt bbfl.us.
The Escrow Agent also understands that City may disclose any document in connection with this
Agreement, so long as the document is not exempt or confidential and exempt from public
records requirements.
9. Additional Provisions. This Agreement contains the entire understanding
between and among City, BBTCA and Escrow Agent, and shall be binding upon and inure to the
benefit of such parties, and subject to its terms, their respective successors, heirs, assigns, and
legal representatives. This Agreement may be executed and delivered in any number of
counterparts, each of which, when so executed and delivered, shall be deemed to be an original
and all of which shall constitute one and the same instrument. This Agreement is being executed
and delivered in and shall be governed by and construed and enforced in accordance with the
laws of the State of Florida. In the event of litigation between any of the parties, the parties
hereby irrevocably agree that venue shall be in a court of competent jurisdiction in Palm Beach
County, Florida. Facsimile or electronic transmission copies of execution pages of this
Agreement or any amendments of this Agreement or notices pursuant this Agreement shall
constitute original execution documents for purposes of this Agreement or any such amendment
or notice. BBTCA hereby acknowledges that Escrow Agent is also counsel for the City in the
transactions contemplated in this Agreement and the Escrow Documents. In the event of a
dispute between any of the parties, the parties consent to Escrow Agent continuing to represent
the City(to the extent permitted under applicable law), notwithstanding that Escrow Agent shall
continue to have the duties provided for in this Agreement. Nothing in this Agreement shall be
deemed to affect the rights, privileges, and sovereign immunities of the City as set forth in
Section 768.28,Florida Statutes and any liability to the City arising or concerning this Agreement
shall be limited to the amount set forth in Section 768.28,Florida Statutes.
10. Notices. Any notices required or permitted to be given hereunder shall be given
by overnight courier, certified or registered mail, return receipt requested, to the following
addresses or to such other single address as either party hereto shall notify the other:
For BBTCA: Jerneb Acquisition Corp.I
do Time Equities,Inc.
55 Fifth Avenue—15th Floor
New York,New York 10003
Attention:Robert Kantor and Robert Singer
Email: rkantorra,timeequities.com
rsingei timeequities.com
With Counterpart to: Mark J. Lynn,Esq.
Greenspoon Marder LLP
200 E.Broward Boulevard
Suite 1800
Fort Lauderdale,FL 33301
e-mail: mark.lvnn®gmlaw.com
01888469-3 Escrow Agreement-Boynton Beach project:51781462_1
For the City: Dan Duggar,City Manager
100 E.Ocean Avenue
Boynton Beach,FL 33435
Email: DuggarD@bbfl.us
With Counterparts to: Michael D.Cirullo,Jr.
3099 East Commercial Boulevard, Suite 200
Fort Lauderdale,FL 33308
Email: MCirullo@GorenCherof.com
Kathryn B.Rossmell
360 S.Rosemary Avenue, Suite 1100
West Palm Beach,FL 33410
Email: krossmell@llw-law.com
Escrow Agent: Michael D.Cirullo,Jr.
3099 East Commercial Boulevard, Suite 200
Fort Lauderdale,FL 33308
Email: MCirullona,GorenCherof.com
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01888469-3 Escrow Agreement-Boynton Beach project:51781462_I
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01888469-1 Escrow Agreement-Boynton Beach project:5178I462_I
IN WITNESS WHEREOF, the undersigned have signed and sealed this Agreement as of
the date set forth above.
Signed,sealed and delivered
In the presence of: BOYNTON BEACH TOWN CENTER
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