Loading...
HomeMy WebLinkAboutExhibit 2-SUBDraft Revised: City Commission Modifications 01/10/08 DEVELOPMENT AGREEMENT BETWEEN CITY OF MIAMI, FLORIDA AND WEST FLAGLER ASSOCIATES, LTD. REGARDING SLOT MACHINES AT FLAGLER DOG TRACK PROPERTY THIS AGREEMENT is entered this day of , 2008, by and between WEST FLAGLER ASSOCIATES, LTD., a Florida limited partnership (hereinafter referred to as "Flagler"), and the CITY OF MIAMI, FLORIDA, a municipal corporation and a political subdivision of the State of Florida (hereinafter referred to as the "City"). WITNESSETH: WHEREAS, at the November 2, 2004 general election, the electors of the State of Florida voted to adopt an amendment to the Florida Constitution authorizing the electors of Miami -Dade and Broward Counties to hold county -wide elections on whether to authorize slot machines in existing, licensed pari-mutuel facilities that have conducted live racing or games in that county during each of the last two calendar years before the effective date of the Constitutional Amendment ("Amendment 4"); WHEREAS, pursuant to a resolution passed on July 11, 2007, the Miami - Dade Board of County Commissioners called a countywide special election to be held by the County on Tuesday, January 29, 2008 (the "Special Election") for the purpose of submitting to the qualified electors of Miami -Dade County (the "County") the question of whether to authorize slot machines in certain existing, licensed pari-mutuel facilities located within the County as provided in Article X, Section 23 of the Florida Constitution; WHEREAS, the City and Flagler recognize that each entity impacts the health and general welfare of the residents of the City; WHEREAS, Flagler owns and operates Flagler Dog Track and its related business operations of the clubhouse building, the actual race track oval, and the related parking facilities and Flagler is the owner of those certain parcels of land on which the Flagler Dog Track and its related business operations of the clubhouse building, the actual race track oval and the related parking facilities are located within the boundaries of the City located at 401 Northwest 38th Court, the legal descriptions of which and property tax folio numbers for which are attached hereto as composite Exhibits "A" (collectively, the "Property"); WHEREAS, expansion of wagering capabilities to include slot machines in the business operations at the Property will generate substantial additional revenues for the City; Draft Revised: City Commission Modificaloons 01/10/08 1 WHEREAS, the Property is currently zoned as C2 ("Liberal Commercial") in the City's Official Zoning Atlas and designated "General Commercial" in the City's Future Land Use Map, and Flagler and the City mutually desire that the Property be developed as permitted in the City's comprehensive plan and zoning code (the "Project"); and WHEREAS, the City and Flagler recognize that the residents of the City have legitimate concerns over increased development, and the possible impacts to the City in the nature of traffic, congestion, and the quality of life in the City; WHEREAS, Flagler desires to assist the City in mitigating, rninimizing, offsetting and defraying governmental impacts, including the costs of local and regional law enforcement, public safety, human services, mass transit operation, public improvements, and to mitigate lost revenues such as sales tax surcharges that the City may incur as a result of Flagler's slot machine operations at the Property in the City; WHEREAS, the City Commission pursuant to Resolution No. 07- , adopted , 200 (a copy of which is attached hereto as Attachment A) has authorized the City Manager to execute this Agreement upon the teiuis and conditions as set forth below, and the Board of Directors of Flagler's general partner pursuant to its Corporate Resolution adopted , 200 (a copy of which is attached hereto as Attachment B) has authorized to execute this Agreement upon the terms and conditions set forth below, NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter contained, the parties hereto do and hereby mutually agree and bind themselves as follows: Section 1. RULES OF LEGAL CONSTRUCTION. For all purposes of the Agreement, unless otherwise expressly provided: a) A defined term has the meaning assigned to it; b) Words in the singular include the plural, and words in plural include the singular; and A pronoun in one gender includes and applies to other genders as well; d) The terms "hereunder", "herein", "hereof', "hereto" and such similar Draft Revised: City Commission Modificaltions 0Ii10-08 2 terms shall refer to the instant Agreement in its entirety and not to individual sections or articles e) The Parties hereto agree that this Agreement shall not be more strictly construed against either the City or Flagler as both parties are the drafters of this Agreement. f) The recitals are true and correct and are hereby incorporated into and made a part of this Agreement. All attachments, exhibits and appendices attached hereto shall be deemed hereby adopted and incorporated herein. Section 2. Definitions As used herein: "Agreement" means this Agreement between the City and Flagler. "Annual Gross Slot Revenues" means the combined total amount of Gross Slot Revenues realized in any Flagler Fiscal Year. "Applicable Laws" means those applicable federal, state or local laws, rules, regulations, codes, ordinances, resolutions, administrative orders, schedules, pennits, decrees, tariffs, policies and procedures and orders which govern or relate to the respective Parties' obligations an.d performance under this Agreement, all as they may be amended from time to time. "City" means the City of Miami, a municipal corporation and a political subdivision of the State of Florida, and all departments, agencies and instrumentalities thereof. "Comprehensive Plan" means the plan adopted by the City pursuant to Chapter 163, Florida Statutes ("F.S."), meeting the requirements of Section Draft Revised: City Commission Modi iea dons 01r10/08 3 terms shall refer to the instant Agreement in its entirety and not to individual sections or articles e) The Parties hereto agree that this Agreement shall not be more strictly construed against either the City or Flagler as both parties are the drafters of this Agreement. The recitals are true and correct and are hereby incorporated into and made a part of this Agreement. All attachments, exhibits and appendices attached hereto shall be deemed hereby adopted and incorporated herein. Section 2. Definitions As used herein: "Agreeen.t" means this Agreement between the City and Flagler. "Annual Gross Slot Revenues" means the combined total amount of Gross Slot Revenues realized in any Flagler Fiscal Year. "Applicable Laws" means those applicable federal, state or local laws, rules, regulations, codes, ordinances, resolutions, administrative orders, schedules, permits, decrees, tariffs, policies and procedures and orders which govern or relate to the respective Parties' obligations and performance under this Agreement, all as they may be amended from time to time. "City" means the City of Miami, a municipal corporation and a political subdivision of the State of Florida, and all departments, agencies and instrumentalities thereof. "Comprehensive Plan" means the plan adopted by the City pursuant to Chapter 163, Florida Statutes ("F.S."), meeting the requirements of Section [.)raft Revised: City CornmissioNiodifical tons 01/ 0/08 3 163.3177, F.S., Section 163.3178, and Section 163.3221(a), F.S., which is in effect as of the Effective Date. "County" means Miami -Dade County, a political subdivision of the State of Florida. "Development" means the carrying out of any building activity, the making of any material change in the use or appearance of any structure or land, or the dividing of land into three or more parcels and such other activities described in Section 163.3221(4), Florida Statutes (2004), provided such building activity, change in use or appearance of structure or land or dividing of land either (a) is made within the existing structural footprint of the facilities located on the Property or (b) does not increase the square footage of the structural footprint of the existing facilities located on the Property by more than twenty percent (20%) in the aggregate. "Development Approval" means the Existing Zoning. "Downzone" shall refer to any change in regulations that govern the use or development of land (including but not limited to comprehensive plans, land development regulations, subdivision regulations, and any other such regulations), which change would have the effect of imposing more restrictive limitations on the use of the Property than those which exist on the Effective Date of this Agreement. "Effective Date' is the latter of the dates of recordation of this instrument or thirty days after this instrument has been received by the state land planning agency pursuant to Section 163.3239, Fla. Stat. Draft Revised: City Commission Mod a:al/ions 01%l0/08 4 "Existing Zoning" is comprised of City of Miami Ordinance No 11000, adopted March 8, 1990, and amended through July 2007, which adopts the effective land development regulations governing development of the Property. "Flagler" shall have the meaning assigned in the recital clauses above. "Flazler Fiscal Year" means Flagler's fiscal year, which begins on January 1 and ends on December 31 of each calendar year. "Governing body" means the board of county commissioners of a county, the commission or council of an incorporated municipality, or any other chief governing body of a unit of local government. "Gross Slot Revenues" shall mean all currency and other consideration placed into any slot machine at the Property, less all payouts to and credits redeemed by players at the Property. "Land" means the earth, water, and air, above, below, or on the surface and includes any improvements or structures customarily regarded as land. "Land Development Regulations" means ordinances, rules and policies enacted or customarily implemented by the City for the regulation of any aspect of development and includes any local government zoning, rezoning, subdivision, building construction, or sign regulation or any other regulations controlling the development of or construction upon land in effect as of the Effective Date. "Laws" means all ordinances, resolutions, regulations, comprehensive plans, land development regulations, and rules adopted by a local government Draft Revised: City Commission Modiiic'al bons 0l/LO/08 5 affecting the development of Land. "Local government" means any county or municipality or any special district or local governmental entity established pursuant to law which exercises regulatory authority over, and grants development permits for, land development.. "Monthly Gross Slot Revenues" means all Gross Slot Revenues generated by Flagler during any particular calendar month. "Project" means development permitted pursuant to the Existing Zoning. "Property" shall have the meaning assigned inthe recital clauses above. "Public facilities" means major capital improvements, including, but not limited to, transportation, sanitary sewer, solid waste, drainage, potable water, educational, parks an.d recreational, and health systems and facilities. "Slot Machine" means any machine as defined by subsection (8) of section 551.102 Florida Statutes (2007), or any other Applicable Laws. Section 3. Intent. It is the intent of Flagler and the City that this Agreement should be construed and implemented so as to effectuate the purposes and intent of the parties and the purpose and intent of the Florida Local Government Development Agreement Act, Section 163.3220, F.S., et. al. Section 4. Term and Effective Date This Agreement shall become effective on the Effective Date. The Agreement shall be recorded in the public records of Miami -Dade County and with the City Clerk and shall have a -term of twenty (20) years from the Effective Date and shall constitute a covenant running with the land. The term of this Agreement may be extended, as well as Draft Revised: City Connrnission Modir'cal tions 0 1i10/U8 6 any other change to this Agreement, including release or partial release, upon execution of a written instrument by the City Manager and by Flagler (or its assigns, which may include, but not be limited to a Community Development District and/or a master property owners' association with appropriate authority over the Property) and with the consent of the City Commission and the, then owner(s) of a majority of the Property, provided that such change has been approved in advance by the City Commission after public hearing, pursuant to Sections 163.3225, and 163.3229, Florida Statutes. The City may apply subsequently adopted laws and policies to the Property pursuant to the procedures of Section 163.3233(2), Florida Statutes. This Agreement may not be terminated during its terra except as expressly provided herein. Notwithstanding any other provision to the contrary, this Agreement shall terminate immediately at the earliest of such time that (a) the voters do not approve by majority vote the issue of whether to permit slot machines during the Special Election or (b) any vote approving such issue is overturned or held invalid (following the expiration of all appeals periods) ([a] and [b] shall each be referred to as an "Event of Early Termination"). Section 5. Compensation a. Beginning on the date that any slot machines are authorized and operating at the Property, and continuing through the terra of the Agreement, Flagler agrees to pay the City an amount equal to the sum of (x) one and one-half percent (1.5%) of the amount of Annual Gross Slot Revenues for the applicable Flagler Fiscal Year that are not in excess of $250,000,000 plus (y) two and one-half percent (2.5%) of the amount of Annual Gross Slot Revenues for the applicable Flagler Fiscal Year that are in excess of $250,000,000 (the resulting amount, the "Percentage Payment"). For example, if Annual Draft Revised: City Commission Modificaltion 01/10/08 Gross Slot Revenues were $280,000,000 during a Flagler Fiscal Year, the total amount of Percentage Payment due the City for that Flagler Fiscal Year would equal S4,500,000.00. Flagler shall pay the Percentage Payment to the City in monthly installments (each such installment, a "Monthly Percentage Payment") based on the amount of Monthly Gross Slot Revenues generated in the prior month and such Monthly Percentage Payment shall become due and payable in arrears on the fifteenth (15t'') day of the calendar month following its accrual. Any Monthly Percentage Payment not timely paid to the City by the fifteenth (15`h) of each month shall accrue a late fee in an amount of one percent (1%) of the amount then due per month or portion thereof until the amount owed has been paid to the City and if such late amount plus accrued late fee(s) have not been paid within thirty (30) days of the original required payment date, then Flagler may be declared by the City to be in default pursuant to the provisions of Section 26 below. The foregoing Monthly Percentage Payments shall be made as an advance on the total amount of any Percentage Payment owed by Flagler to the City during any Flagler Fiscal Year. A subsequent change of the Flagler Fiscal Year shall not alter the annual basis unless agreed to in writing by the parties as an amendment to this Agreement and any subsequent change of the Flagler Fiscal Year shall not decrease the amount of any type of payments to the City. b. Flagler shall submit payment of any fees required to be paid by the terrors and conditions of this Agreement by corporate check made payable to the City by delivery to the following address: City of Miami Attn: City Manager 3500 Pan American Drive Miami, Florida 33133 Draft Revised: City Commission Modit3caItions 0IJ 10/08 8 c. Together with each Monthly Percentage Payment due pursuant to the terms and conditions of this Agreement, Flagler shall submit to the City an accounting of the operation of the slot machines and the computation of any fees imposed pursuant to this Agreement for the relevant period of time during which any such fees accrued. Section 6. Auditing and Inspection Rights and Record Retention. The City shall have the rights to inspect and/or to cause to be inspected by any of its duly authorized representatives Flagler's place of business at the Property an.d the track and to audit and/or cause to be audited by any of its duly authorized representatives the books, records, documents, papers, and accounts of Flagler, in each case as required by law and to the extent directly relating to the calculation of Gross Slot Revenues and the Monthly Percentage Payments and any other payments to the City pursuant to this Agreement, and upon reasonable notice, in a reasonable manner, at a reasonably mutually -agreeable time and place within the City, in order to ascertain the correctness of the Gross Slot Revenues, the Monthly Percentage Payments, and any other payments required to be made to the City pursuant to this Agreement, including the accurate reporting of Gross Slot Revenues and the determination of Monthly Percentage Payments and the determination of any other payments required to be made to the City under this Agreement. Flagler shall keep such books, records, documents, papers, and accounts within the City at its principal place of business and as may be necessary in order to record complete and correct entries related to the calculation of Gross Slot Revenues, the Monthly Percentage Payments, and any other payments required to be made to the City pursuant to this Agreement. All books, records, documents, papers, and accounts of Flagler relating to Gross Slot Revenues shall be kept in written form, or in a form capable Draft Revised: City Commission Modificaltions 01/li3/U8 9 of conversion into written faun within a reasonable time, and upon reasonable request to do so, Flagler shall make same available at no cost to the City in written form. Audited financial statements of Flagler which in addition details the amount of Annual Gross Slot Revenues, the final Monthly Percentage Payments, and any other payments to the City for that fiscal year shall be provided to the City within four (4) months of the close of each fiscal year of Flagler. Flagler agrees to provide access to the City or to any of its duly authorized. representatives, to any books, documents, papers, accounts, and records of Flagler that are directly pertinent to this Agreement, for the purpose of audit, inspection, examination, excerpts, and transcripts. Flagler shall preserve and make available at a location within the City, at reasonable times following receipt of written notice, for examination, inspection, and audit by the City and/or its duly appointed representatives, all financial records, supporting documents, statistical records, account records, related papers, and any other documents pertinent to the calculation of Gross Slot Revenues and the Gross Slot Revenues payments, Monthly Percentage Payments, and any other payments required to be made to the City pursuant to this Agreement for the required retention period of the Florida Public Records Act (Chapter 119, Florida Statutes), if applicable, or, if the Florida Public Records Act is not applicable, for a minimum period of three (3) years after the creation of the record or from the date of final payment, whichever is longer. If any audit has been initiated and audit findings have not been resolved at the end of the retention period or three (3) years, whichever is longer, the books, records, documents, papers and accounts shall be retained until resolution of the audit findings. If the Florida Public Records Act is determined to be applicable to Flagler's records relating to Gross Draft Revised: City Commission Moditical Lions 01/10/08 10 Slot Revenues, Monthly Percentage Payments, and any other payments required to be made to the City, Flagler shall comply with all requirements thereof; however, no confidentiality or non -disclosure requirement of either federal or state law shall be violated by Flagler. Any incomplete or incorrect entry or entries in excess of Two Hundred Thousand and 00/100 Dollars (S200,000.00) of -cumulative, annual funds that should have been paid to the City as a Gross Slot Revenues payment, a Monthly Percentage Payment, or any other payments required to be made to the City, in a particular fiscal year in such books, documents, papers, records, and accounts shall be a basis for the City's applying an administrative fee of ten percent (10%) of any amount owed to the City plus interest in an amount of one percent (1%) per month or portion thereof until the amount owed has been paid. Any underpayment of any amount shall be paid by Flagler to the City within ten (10) days of notice of the audit finding, including any underpayments accruing interest and the administrative fee if owed. Flagler's failure to adhere to, or refusal to comply with, the provisions of this Section 6 shall result in an Event of Default under this Agreement, subject to applicable cure and/or grace period(s). Section 7. Development Fees and License Fees. Flagler shall pay (i) all permit, processing, review and impact fees as may be required pursuant to the Codes of the City and the County and other Applicable Laws as such fees become due and payable with respect to the Project (those fees, collectively, the "Development Fees") and (ii) all occupational and any other license fees as may be required by the Codes of the City and the County and other Applicable Laws as such fees become due and payable with respect Draft Revised: City Commission Modificaltiolis 01'10/08 11 to the business operations at the Property and the track (those fees, collectively, the "License Fees"). a. Flagler shall be entitled to a credit against its obligation to pay Percentage Payments, in an amount equal to the Development Fees that Flagler pays to the City, subject to the terms and conditions of this Section 7 and subsection (b) below regarding the track oval. After the payment of any Development Fees to the City, Flagler shall be entitled to deduct the amount of Development Fees paid to the City from the amount of any subsequent Monthly Percentage Payment that exceeds $140,000.00 (that amount, the "Monthly Credit Threshold Amount"), except that the total amount of credit taken against any particular Monthly Percentage Payment shall not result in that Monthly Percentage Payment being less than S 140,000.00 (the positive difference between the amount of a Monthly Percentage Payment and the Monthly Credit Threshold Amount, the "Maximum Monthly Credit Amount"). Flagler shall also be similarly entitled to a monthly credit against Monthly Percentage Payments in the amount of the fees assessed by the City as set forth in the Codes of the City for the administrative processing and review of applications for development permits for square footage used for slot machines, the amphitheater and a food court, together with all ancillary uses, submitted to the City for review and approval provided that such monthly credits, together with any credits taken with respect to Development Fees paid to the City, do not exceed the Maximum Monthly Credit Amount in any given month. To the extent that the cumulative amount of credits for Development Fees paid to the City and permit processing and application fees paid to the City to which Flagler is entitled are in excess of the Maximum Monthly Credit Amount for any particular month, Flagler shall be entitled to carry such credits over to Draft Revised: City Commission Mudalica I lions 01i 10©S 12 any and all subsequent months during which the Monthly Credit Threshold Amount is exceeded. The total amount of Percentage Payment(s) due during any Flagler Fiscal Year shall be adjusted downward by the total amount of any credits for amounts paid to the City and allowed during that Flagler Fiscal Year pursuant to this Section 7. For example as to how the credits in the immediately -preceding subsection shall operate, assume the amount ofthe Gross Slot Revenues at Flagler during the initial full month of slot machine operations was $11,250,000.00 and Flagler had paid development impact fees to the City in a total amount of S50,000.00 and permit application processing fees in a total amount of $30,000.00. The amount of the Monthly Percentage Payment accrued to the City for the initial full month of slot operations would be $168,750.00 (e.g., 1.5% of $11,250,000.00). Flagler would, however, be entitled to offset the total amount ofthe development impact fees and application processing fees up to the amount of Flagler's Monthly Maximum Credit Amount of $28,750.00 (e.g., $168,750.00 less $140,000.00). The remaining $51,250.00 in development impact fees and permit application processing fees would then roll over and be available to be credited against the amount of the next Monthly Percentage Payment or series of Monthly Percentage Payments in excess of S140,000.00 until such time that such credits have been exhausted. and subject to any adjustment pursuant to subsection (b) below regarding the track oval. b. Flagler's right to offset Development Fees against its obligation to pay Monthly Percentage Payments pursuant to subsection (a) above shall be limited to those Development Fees that are payable in connection with building activity, rehabilitation and other development ancillary to the gaming operations on the Property or made within (i) the existing structural footprint of the clubhouse facility and the racing oval on the Draft Revised: City Commission Modifica I tions 0 i0'08 13 Property, and (ii) areas that do not, in the aggregate, increase the square footage of the structural footprint of the existing facilities located on the Property by more than twenty percent (20%) in the aggregate, provided that credits for Development Fees Payable in connection with the building activity, rehabilitation, and other development made within the racetrack oval shall be limited to improvements and structures not exceeding Ten Million Dollars ($10,000,000.00) in hard costs to construct. c. Flagler and the City acknowledge that Flagler is required to obtain the City occupational license related to slot machine operations pursuant to the Codes of the City and the County during the term of this Agreement and that the City shall charge only one occupational License fee for Flagler's entire slot machine operations at the Property unless the City is otherwise required to charge more than one occupational license fee pursuant to State statutes or County ordinances, and that any such occupational license fee(s) imposed by ordinance of the City shall comport with State and County requirements in a non-discriminatory manner. Flagler further acknowledges that it shall pay any occupational license fee related to slot machine operations to the City when due and payable. Flagler and the City acknowledge that after Flagler has paid a threshold amount totaling Twenty Thousand Dollars ($20,000.00) for its slot machine related occupational license at the Property, then Flagler shall be entitled to a credit against its monthly obligation to pay Monthly Percentage Payments for any amount of slot machine -related occupational license paid by Flagler to the City in excess of such Twenty Thousand. Dollars ($20,000.00). Flagler and the City acknowledge that Flagler will not receive a credit for any other type of occupational or other license fees paid or to be paid by Flagler to the City. Draft Revised: City C'ommissian Modificaltions 01;10/08 14 Section 8. Permitted Development Uses and Building Intensities. (a) Permitted Development Uses. Prior to the adoption and acceptance of this Agreement, the City has designated the Property as C-2 ("Liberal Commercial") on the official zoning Atlas of the City, pursuant to the City's Land Development Regulations ("Existing Zoning"). In granting the Existing Zoning, the City has determined that development and uses thereunder are consistent with the City's Comprehensive Plan and that it is in accordance with the City's land development regulations in effect as of the Effective Date. Upon execution of this Agreement and for the duration thereof, the City confiuins and agrees that the Property may be developed and used for the purposes established in the City's Comprehensive Plan and Land Development Regulations in effect as of the Effective Date of this Agreement, or such laws and policies subsequently adopted and applied to the Property solely pursuant to the procedures of Section 163.3233(2), Florida Statutes. The City and Flagler mutually consent and agree that the additional limitations and conditions set forth in this Agreement serve as the sole basis upon which the parties enter into this Agreement. (b) Density, Building Heights, Setbacks and Intensities. Except as otherwise provided herein, the maximum height, setbacks and intensities for any development on the Property shall be regulated by the Land Development Regulations in effect as of the Effective Date and the applicable designations in the City's Comprehensive Plan. Section 9. Project Approval. Draft Revised: City Comssion lvtodificaltions 01'10/08 15 a) Further Development Review. The Existing Zoning, the Land Development Regulations, the Comprehensive Plan, and this Agreement establish the criteria upon which the Property shall be developed during the term of this Agreement. b) Downzoning. For the duration of this Agreement, the City shall not Downzone the Property or otherwise limit the ability of Flagler to develop the Property in accordance with the Development Approvals and nothing shall prohibit the issuance of further development orders and approvals in confoiiiiity with same for the Property. However, the City may apply subsequently adopted laws and policies to the Property, solely pursuant to the procedures of Section 163.3233(2), Florida Statutes. Section 10. Public Services and Facilities; Concurrency. For the purposes of concurrency review, it is hereby found that, throughout the duration of this Agreement, sufficient infrastructure capacities will be reserved and remain available to serve this Project. All subsequent development orders or peinaits sought to be issued which are in conformity with this Agreement are hereby found to meet concurrency standards set forth in the Comprehensive Plan as such standards may be amended from time to time (concurrency regulations) and to be consistent with Land Development Regulations, so long as Flagler develops the Property in compliance with the terms and conditions contained within the Existing Zoning and this Agreement. Notwithstanding the foregoing, Flagler acknowledges that the City is not responsible (i) for water and sewer service and those other services provided by the County and (ii) for any commercial solid waste removal and/or recycling contract that Flagler may have from time to time with a Drab Revised: City Commission Modificaltions 01/10/08 16 private hauler (collectively, the "Non -City Services"), and as such, the City can not guarantee adequate capacity with respect to Non -City Services. Section 11. Reservation or Dedication of Land. Except as otherwise provided below and pursuant to applicable subdivision regulations, Flagler shall not be required to dedicate or reserve any land within the Property for municipal purposes. Section 12. Local. Development Permits. The development of the Property in accordance with the Existing Zoning is contemplated by Flagler. The City may need to consider certain additional development permits in order for Flagler to complete the Project in a manner consistent with the Development Approvals and the Land Development Regulations in effect as of the Effective Date and Comprehensive Plan designations affecting the Property, such as: (a) Site Plan approvals; (b) Land Improvement Permits (c) Subdivision plat and or waiver of plat approvals; (d) special permits; (e) Covenant or Unity of Title acceptance or the release of existing unities or covenants; (f) Building permits; (g) Certificates of use and/or occupancy; and (h) Any other official action of the City having the effect of permitting the development of land. Draft Revised: City Commission Modifications 01/[0/08 17 Section 13. Consistency with Comprehensive Plan. The City hereby finds that the development of the Property in conformity with the Existing Zoning is consistent with the City's Land Development Regulations and Comprehensive Plan designation as of the Effective Date and shall not be subject to any future changes to the City's Land Development Regulations and Comprehensive Plan designation after the Effective Date; provided, however, the City may apply subsequently adopted laws and policies to the Property solely pursuant to the procedures of Section 163.3233(2), Florida Statutes., Section 14. Necessity of Complying with Local Regulations Relative to Development Perrn.its. Flagler and the City agree that the failure of this Agreement to address a particular permit, condition, fee, term, license, or restriction in effect on the Effective Date of this Agreement shall not relieve Flagler of the necessity of complying with the regulation governing said permitting requirements, conditions, fees, terms, licenses, or restrictions as long as compliance with said regulation and requirements do not require Flagler to develop the Property in a manner that is inconsistent with the Development Approvals. Section 15. Reservation of Development Rights. For the term of this Agreement, the City hereby agrees that it shall perry it the development of the Property in accordance with the City's Land Development Regulations, the City's Comprehensive Plan, and existing laws and policies as of the Effective Date of this Agreement which are or may be applicable to the Property, subject to the conditions of this Agreement. However, nothing herein shall prohibit an increase in developmental density or intensity within the Property in a manner consistent with the City's Comprehensive Plan and Land Draft Revised: City Cornmission Mod ifica 1 tions 0I /I0 08 18 Development Regulations, or any change requested or initiated by Flagler in accordance with applicable provisions of law. Moreover, the City may apply subsequently adopted laws and policies to the Property solely pursuant to the procedures of Section 163.3233(2), Florida Statutes. The expiration or termination of this Agreement, for whatever reason, shall not be considered a waiver of, or limitation upon, the rights, including, but not limited to, any claims of vested rights or equitable estoppel, obtained or held by Flagler or its successors or assigns to continue development of the Property in confoiiiiity with the Development Approvals and all prior and subsequent development permits or development orders granted by the City, including, but not limited to, those rights granted under the City's Comprehensive Plan and land development regulations. Section 16. Notices All notices, demands and requests which may or are required to be given hereunder shall, except as otherwise expressly provided, be in writing and delivered by personal service or sent by telex, telecopy, telegram, United States Registered or Certified Mail, return receipt requested, postage prepaid, or by overnight express delivery, such as Federal Express, to the parties at the addresses and telecopy numbers listed below. Any notice given pursuant to this Agreement shall be deemed given when received. Any actions required to be taken hereunder which fall on Saturday, Sunday, or United States legal holidays shall be deemed to be performed timely when taken on the succeeding day thereafter which shall not be a Saturday, Sunday or legal holiday. To the City: Drat Revised: City Como ssion M od i tica 1 ti ons 0I710`08 City Manager City of Miami 19 With a copy to: To Flagler: With copies to: 3500 Pan American Drive Miami, FL 33133 City Attorney Miami Riverside Center 444 S.W. 2. d Ave., 10th Floor Miami, FL 33130 West Flagler Associates, Ltd. Attn: Lori Weems, General Counsel 401 N.W. 38t1i Ct. Miami, FL 33126 Holland & Knight LLP Attn: Joe Dewey 701 Brickell Ave., Ste. 3000 Miami, FL 33131 Any Party to this Agreement may change its notification address(es) by provi.di.ng written notification to the remaining parties pursuant to the terms and conditions of this section. Section 17. Agreement Not a Lease It is agreed that this Agreement is n.ot a lease, and that no interest or estate in, or lien on, real property or improvements is created by this Agreement. Section 18. Indemnification; Risk of Loss. and Insurance a. Indemnification: Flagler agrees to indemnify, protect, defend, release, and hold harmless the City, its officials, agents, employees, and contractors, and each of them from and against all suits, actions, claims, demands, damages, losses, penalties or fines, expenses, attorneys' fees, costs and liabilities of every kind or description to which the City, its officials, agents, employees, or contractors may be subjected which are caused by or arise out of, in whole or in part, (i) the negligent acts (whether active or passive or in strict liability), intentional misconduct, omissions, or defaults of Flagler or its agents, employees, officers, or contractors, which arise from, grow out of, or are connected with Draft Revised: City Commission Mod iflea itions 01110108 20 this Agreement; except to the extent that such damage, loss or liability is caused by the negligence of, or intentional misconduct of the City or its officials, employees, agents or contractors, and (ii) the failure of Hagler to comply materially with any of the requirements herein, or the failure of the Flagler to conform to statutes, ordinances, or other regulations or requirements of any governmental authority, local, federal or state, in connection with the performance of this Agreement. This indemnity obligation shall apply regardless o:f whether such suits, actions, claims, damages, losses, penalties, or expenses and costs be against or sustained by others to whom the City, its officials, agents, employees, or contractors may become liable. Upon request of the City, Flagler shall undertake to defend, at its sole cost and expense, any and all suits brought against the City in connection with the matters specified in this Section, in the event such suit is solely caused by the negligence, omission, or default by Flagler or its agents, employees, officers, or contractors.. Flagler shall have the right to cooperate in the defense, including the selection of private counsel, if any, at its sole cost and expense, against any suit, action, claim, demand, damage, loss, penalty or fine made by any party to this Agreement or any third party that could reasonably and forseeably result in a material adverse impact on the amount of Gross Slot Revenues generated or capable of being generated at the Property, provided however that nothing contained herein shall limit the City's right to direct the defense. b. Risk of Loss: The City and its officials, employees, agents, and contractors assume no responsibility whatsoever for any person(s) or property that enter Flagler's Property for the Project as a result of, or in connection with, this Agreement. In consideration of the execution of this Agreement by the City, the Flagler releases and Draft Revised: C.'ity Conission Modifical tions 01110i08 21 waives all claims against the City, its officials, employees, agents, and contractors from any and all liability for any loss, injury, death, theft, damage or destruction to any persons or property which may occur in or about the .Property regardless of the cause. c Insurance. Flagler fully understands that it shall be its responsibility to secure its own insurance coverage(s). Flagler shall, at all times during the term hereof, maintainsuch insurance coverage(s) as may be required by Flagler for the Building, the Property, and the Project and all persons entering thereon, and all equipment and instruments stored thereon, including any of Flagler's equipment and instruments required for development of the Project and its ongoing operations. Flagler shall be responsible for assuring that the insurance coverages remain in full force and effect for the duration of this Agreement, including any extensions hereof. Compliance with the foregoing insurance requirements shall not relieve Flagler of its liabilities and obligations under this Agreement. Section 19. Exclusive Venue, Choice of Law, Specific Performance It is mutually understood and agreed by the parties hereto, that this Agreement shall be governed by the laws of the State of Florida, and any applicable federal law, both as to interpretation and performance, and that any action at law, suit in equity or judicial proceedings for the enforcement of this Agreement or any provision hereof shall be instituted only in the courts of the State of Florida or federal courts and venue for any such actions shall lie exclusively in a court of competent jurisdiction in the County. In addition to any other legal rights, the City and Flagler shall each have the right to specific performance of this Agreement in court. Each party shall bear its own attorney's fees. Each party waives any defense, whether asserted by motion or pleading, that the Draft Revised: City COmmassion Mo<lificaitions 01/10/08 22 aforementioned courts are an improper or inconvenient venue. Moreover, the parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction. The parties irrevocably waive any rights to a jury trial. Section 20. Voluntary Payment and Voluntary Compliance Flagler and the City each agree that in the event all or any part of this Agreement is struck down by judicial proceeding or preempted by legislative action, Flagler and the City shall continue to honor the terms and conditions of this Agreement to the extent allowed by law. Section 21. No Oral Change or Termination This Agreement and the exhibits and appendices appended hereto and incorporated herein by reference, if any, constitute the entire Agreement between the parties with respect to the subject matter hereof. This Agreement supersedes any prior agreements or understandings between the parties with respect to the subject matter hereof, and no change, modification or discharge hereof in whole or in part shall be effective unless such change, modification or discharge is in writing and signed by the party against whom enforcement of the change, modification or discharge is sought. This Agreement cannot be changed or terminated orally. Section 22. Compliance with Applicable Laws Throughout the Term of this Agreement, Flagler shall comply with all Applicable Laws, subject to the teiiiis and conditions of this Agreement. Section 23. Representations; Representatives Each party represents to the other that this Agreement has been duly authorized, delivered and executed by such party and constitutes the legal, valid and binding Draft Revise City Commission ModiLicaItions 01!10/08 23 obligation of such party, enforceable in accordance with its terms. The City Manager shall be the City's representative in connection with the execution of and terms and conditions of this Agreement. Barbara Havenick shall be Flagler's representative in connection with the execution of and the teu its and conditions of this Agreement. The foregoing provisions are not intended to impose any personal liability on the City Manager or Barbara Havenick for the City's or Flagler's obligations and liabilities under this Agreement. Section 24. No Exclusive Remedies No remedy or election given by any provision in this Agreement shall be deemed exclusive unless expressly so indicated. Wherever possible, the remedies granted hereunder upon a default of the other party shall be cumulative and in addition to all other remedies at law or equity arising from such event of default, except where otherwise expressly provided. Section 25. Failure to Exercise Rights not a Waiver; Waiver Provisions The failure by either party to promptly exercise any right arising hereunder shall not constitute a waiver of such right unless otherwise expressly provided herein. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. Section 26. Events of Default (a) Flagler shall be in default under this Agreement if any of the following events occur and continue beyond the applicable grace period: (i) Flagler fails to comply timely with any payment obligation which Draft Revised: City Commission Moditivaltions 01/10/08 24 is not cured within fifteen (15) days from Flagler's failure to meet such payment obligation. (ii) Flagler fails to perform or breaches any term, covenant, or condition of this Agreement which is not cured within thirty (30) days after receipt of written notice from the City specifying the nature of such breach; provided, however, that if such breach cannot reasonably be cured within thirty (30) days, then Flagler shall not be in default if it commences to cure such breach within. said thirty (30) day period and diligently prosecutes such cure to completion. (iii) If Flagler shall be adjudicated bankrupt, or if Flagler shall make a general assignment for the benefit of creditors, or if in any proceeding based upon the insolvency of Flagler are commenced and not dismissed within sixty (60) days of filing or a receiver is appointed for all the property of Flagler which is not dismissed within sixty (60) days of such appointment. (b) The City shall be in default under this Agreement if the City fails to perform or breaches any term, covenant, or condition of this Agreement and such failure is not cured within thirty (30) days after receipt of written notice from Flagler specifying the nature of such breach; provided, however, that if such breach cannot reasonably be cured within thirty (30) days, the City shall not be in default if it commences to cure such breach within said thirty (30) day period and diligently prosecutes such cure to Draft Revised: City Commission Mad ificaItions 01r10r08 25 completion. Section 27. Remedies Upon Default Upon the occurrence of a default by Flagler under this Agreement not cured within the applicable grace period, Flagler and the City agree that the City, in addition to any other rights provided by law, shall have the right to impose a lien on the land on which the Property is located. Section 28. Severability If any tei u1 or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, hereafter be determined to be invalid or unenforceable, the remainder of this Agreement or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby and shall continue in full force and effect. Section 29. Assignment and Transfer This Agreement shall be binding on Flagler and -its heirs, successors and assigns. Flagler shall not assign this Agreement without the prior written consent of the City which shall not be unreasonably withheld or denied, except that Flagler may assign this Agreement, without the consent of the City, to a transferee of all or a portion of the Property. Section 30. Obligations Surviving Ter►n.ination Hereof Notwithstanding and prevailing over any contrary term or provision contained herein, in the event anyparty hereto exercises any lawful termination rights herein, the following obligations shall survive such termination and continue in full force an.d effect until the expiration of a one year term following the earlier of the effective date of such Draft Revised: City Commission Modificaltions 01/10/08 26 termination or the expiration of the Term: (i) any and all outstanding payment obligations hereunder of any party hereto arising prior to termination; (ii) any and all indemnity obligations (including but not limited to obligations to defend, release, and hold harmless) , risk of loss provisions, and insurance provisions hereunder of any party hereto; (iii) the exclusive venue and choice of law provisions contained herein; (iv) rights of any party arising during or attributable to the period prior to expiration or earlier termination of this Agreement, and (v) any other term or provision herein which expressly indicates either that it survives the termination or expiration hereof or is or may be applicable or effective beyond the expiration or permitted early termination hereof. Section 31. Lack of Agency Relationship Nothing contained herein shall be construed as establishing an agency relationship between the City and Flagler and neither Flagler nor its employees, agents, contractors, subsidiaries, divisions, affiliates or guests shall be deemed agents, instrumentalities, employees, or contractors of the City for any purpose hereunder, and the City, its contractors, agents, and employees shall not be deemed contractors, agents, or employees of Flagler or its subsidiaries, divisions or affiliates. Section 32. Non -Exclusivity Nothing in this Agreement is intended to create any exclusive rights in Flagler to conduct slot machine operations within the County or the City. In the event that by operation of law other persons are authorized to conduct scot operations within the County or the City, then the County or City (to the extent that additional slot machines may be authorized within the City) may permit, authorize and regulate such business and may enter into contracts to the same or similar effect as contemplated by this Agreement Draft Revised: City Commission tvlodificaltions Ol110/08 27 without incurring any liability, contractual or otherwise, to Flagler. Section 33. If the City takes affirmative action by way of ordinance, resolution or otherwise regarding the Property and that would have the reasonable or foreseeable result of negatively impacting the generation or capacity of generation of Gross Slot Revenues at the Property, then the City and Flagler agree to negotiate in good faith to revise the tetins and conditions of this Agreement. By exception, the City shall have no good faith obligation in the event the City's affirmative action is mandated by County or State law. If and until such time as an amendment or revised agreement is executed, all terms and conditions of this Agreement shall remain in place. Nothing herein shall be construed to obligate the City to revise any term or condition of this Agreement. Section 34. Covenant Not to Sue Flagler hereby covenantsthat it shall not commence or maintain any lawsuit, administrative proceeding, or other action, whether at law or in equity, which challenges the validity or enforceability of this Agreement, any provision of this Agreement or any payment obligation under this Agreement. This covenant shall be binding upon, and inure to, the benefit of the parties, their successors, assigns, heirs, legal representatives, and personal representatives. Section 35. Cooperation, Expedited Permitting and Time is of the Essence The Parties agree to cooperate with each other to the full extent practicable pursuant to the terms and conditions of this Agreement. The Parties agree that time is of the essence in all aspects of their respective and mutual responsibilities pursuant to this Agreement. The Parties agree to work together, to the extent practicable and allowed by Draft Rcyiseci: CityC'onnmission Modifica ons 01'10/08 28 Law, towards the goal of maximizing the Gross Slot Revenues generated at Flagler's Property at the earliest possible time. The City shall use its best efforts to expedite to the extent reasonably practical the permitting and approval process in an effort to assist the Flagler in achieving its demolition, development and constniction milestones. The City will accommodate requests from Flagler's general contractor and subcontractors for review of multiple peiwitting packages, such as those for site work and foundations, and building shell, core and interiors. In addition, the City will designate an individual within the City Manager's office who will serve as the City's point of contact and liaison with Flagler in order to facilitate expediting the processing and issuance of all pettifit applications. Notwithstanding the foregoing, and subject to the provisions of Section 550, Florida Statutes, the City shall not be obligated to issue development approvals or permits to the extent Flagler does not comply with the applicable requirements of the City's land development code and applicable building codes. Section 36. Acknowledgement of Application With Chapter 550, Florida Statutes. Nothing contained in this Agreement is intended to (i) limit or abridge any of Flagler's rights or privileges under Chapter 550, Florida Statutes, or (ii) peiuiit the City to require any permits, approvals or licenses in connection with the Development or operation of the Project in contravention of the provisions of Chapter 550, Florida Statutes, including, without limitation, Section 550.155. Section 37. Cancellation and Enforcement. In the event that Flagler, its successors and/or assigns fails to act in accordance with the terms of the Existing Zoning, the City shall seek enforcement of said violation upon the Property. Draft Revised: City Commission Modifica1tfons 01%10.08 29 Enforcement of this Agreement shall be by action against any parties or person violating, or attempting to violate, any covenants set forth in this Agreement. The prevailing party in any action or suit pertaining to or arising out of this Agreement shall be entitled to recover, in addition to costs and disbursements allowed by law, such sum as the Court may adjudge to be reasonable for the services of his/her/its attorney. This enforcement provision shall be in addition to any other remedies available at law, in equity or both. Section 38. First Source Hiring; and -Local and Minority Preference Commitment. Flagler hereby acknowledges and agrees that it will adopt and implement an employment policy pursuant to which it will give a preference in the hiring process to residents of the City, including but not limited to hiring not less than twenty-five percent (25%) of such employees at entry levels and not less than twenty-five percent (25%) of such employees at professional levels from qualified local minorities and hiring qualified local small businesses, when faced with otherwise equally -qualified applicants for positions at Flagler. Section 39. Use of Name: Flagler understands and agrees that the City is not engaged in research for advertising, sales promotion, or other publicity purposes. Flagler agrees not to use the name of the City in connection with the Project or this Agreement without prior written consent of the City Manager or the City Commission, except that the foregoing shall not prohibit Flagler from (i) using the term "Magic City" in the name of the Property and other advertising materials, and (ii) referring to the City of Miami as part of the address for the Property, or (iii) using the name "City of Miami" in any other way or context which is otherwise not prohibited by applicable law. Draft Reused: City Comanission Modificaltions 01/10/08 30 40. No Conflict of Interest: Pursuant to City of Miami Code Section 2- 611, as amended ("City Code"), regarding conflicts of interest, Flagler hereby certi Pies to City that none of the officers or owners of Flagler nor any immediate family member of any of the same is also a member of any board, commission, or agency of the City. Flagler shall use its reasonable efforts to inform the City throughout the term of this Agreement, if Flagler later determines that any of its employees, contractors, subcontractors, or any immediate family member of any of the same is also a member of any board, commission or agency of the City. 41. No Third -Party Beneficiary No persons or entities other than the Flagler and the City (and their heirs, successors and assigns) shall have any rights whatsoever under this Agreement. 42. Counterparts. This Agreement may be executed in three or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute one and the same agreement. NOW, WHEREOF, the City and. Flagler have caused this Agreement to be duly executed. CITY OF .MIAMI, FLORIDA, a municipal corporation and political subdivision of the State of Florida ATTEST: By Pedro G. Hernandez, City Manager Priscilla A. Thompson, City Clerk Approved as to Insurance Requirements Approved as to Form and Correctness: By: By Draft Revised: City Commission Modiliealtions 01/10`O8 31 LeeAnn Brehm, Risk Management Director Witnesses (Print Name) (Print Name) STATE OF FLORIDA COUNTY OF Jorge L. Fernandez, City Attorney WEST FLAGLER ASSOCIATES, LTD., a Florida limited partnership By: Name: Title: The foregoing instrument was acknowledged before me this day of 2008, by , as for WEST FLAGLER ASSOCIATES, LTD. Signature of Notary Public Print, Type or Stamp Commissioned Name of Notary Public Personally Known OR Produced Identification Type of Identification Produced Attachments and Exhibits to be attached upon document execution Draft Revised: City Canntttissiori Modificaitions 01. O/08 32 Revised Draft of 01/02/01 DEVELOPMENT AGREEMENT BETWEEN CITY OF MIAMI, FLORIDA AND WEST FLAGLER ASSOCIATES, LTD. REGARDING SLOT MACHINES AT FLAGLER DOG TRACK PROPERTY THIS AGREEMENT is entered this day of , 2008, by and between WEST FLAGLER ASSOCIATES;. LTD., a Florida limited partnership (hereinafter referred to as "Hagler"), and the CITY OF MIAMI, FLORIDA, a municipal corporation and a political subdivision of the State df Florida (hereinafter referred to as the "City"). WITN.ESSETH: WHEREAS, at the November- 2, 2004 general election, the electors of the State of Florida voted to adopt an amendment to the Florida Constitution authorizing the electors of Miami -Dade and Broward Counties to hold county -wide elections on whether to authorize slot machines in existing, Iicensed°.,pari-mutuel facilities that have conducted live racing or garnes in that county during each'°of the last two calendar years before the effective date of the Constitutional Amendment (`;`Amendment 4"); WHEREAS, pursuant to a resolutioi passed on July l I, 2007, the Miami - Dade Board of County Commissioners called a coutywide special election to be held by the County on Tuesday, January 29, 2008 (the "Secial Election") for the purpose of submitting to the qualified electors of Miami -Dade Ct,unty (the "County") the question of whether to authorize slot machines in certain existi''ng, licensed pari-mutuel facilities located within the County as provided in Article, X, Section 23 of the Florida Constitution; WHEREAS, the City and Flagler recogni,ze that each entity impacts the health and general welfare of the residents of the City; WHEREAS, Flagler owns and operates F1aler Dog Track and its related business operations of the clubhouse building, the actual rake track oval, and the related parking facilities and Flagler is the owner of those certain jrcels of land on which the Flagler Dog Track and its related business operations of the clubhouse building, the actual race track oval and the related parking facilities are located within the boundaries of the City located at 401 Northwest 38th Court, the legal descriptions of which and property tax folio numbers for which are attached hereto as '?ornposite Exhibits "A" (collectively, the "Property"); WHEREAS, expansion of wagering capabilities to include slot machines in the business operations at the Property will generate substantial 'additional revenues for the City; Rev€sea 01/02i68 WHEREAS, the Property is currently zoned as C2 ("Liberal Commercial") in the City's Official Zoning Atlas and designated "General Commercial" in the City's Future Land Use_Mlap, and Fiagler and the City mutually desire that the Property be developed as permuted in the City's comprehensive plan and zoning code (the "Project"); and WHEREAS, the City and Fiagler recognize that the residents of the City have legitimate concerns over increased development, and the possible impacts to the City in the nature of traff't~, congestion, and the quality of life in the City; WHEREAS, Elatgler desires to assist the City in mitigating, minimizing, offsetting and defraying governmental impacts, including the costs of local and regional law enforcement, public safety,hurnan services, mass transit operation, public improvements, and to mitigate lost revenues such as sales tax surcharges that the City may incur as a result of Flagler's Slot machine operations at the Property in the City; WHEREAS, the City Commission pursuant to Resolution No. 07- , adopted , 200 (a copy of which is attached hereto as Attachment A) has authorized the City Manager to execute this Agreement upon the terms and conditions as set forth below, and the Board of Directors of Flagler's general partner pursuant to its Corporate Resolution adopted , 200 (a copy of which is attached hereto as Attachment B) has authorized to execute this Agreement upon the terms and conditions set forth below, NOW, THEREFORE, in consideration Of the mutual covenants and agreements hereinafter contained, the parties hereto do and, hereby mutually agree and bind themselves as follows: Section 1. RULES OF LEGAL CONSTRUCTION. For all purposes of the Agreement, unless otherwise expressly provided: a) A defined term has the meaning assigned to i b) singular; and Words in the singular include the plural, and r.v rds in plural include the } A pronoun in one gender includes and applies to oti?er genders as well; d) The terrns "hereunder", "herein" "hereof', "hereto" and such similar RCS ised 0t.02<O6 2 terms shall refer to the instant Agreement in its entirety and not to individual sections or articles e) The Parties hereto agree that this Agreement shall not be more strictly construed,against either the City or Flagler as both parties are the drafters of this Agreement. f) The recitals are true and correct and are hereby incorporated into and made a part ofthi Agreement. All attachments, exhibits and appendices attached hereto shall be deemed hereby adopted and incorporated herein. Section 2. Definitions As used herein: " g eement" means this Agreement between the City and Flagler. "Annual Gross Slot Revenues" means the combined total amount of Gross Slot Revenues realized in any Flagler Fiscal Year. "Applicable Laws" means those applicable federal, state or local laws, rules, regulations, codes, ordinances, resolutions, administrative orders, schedules, permits, decrees, tariffs, policies '-and procedures and orders which govern or relate to the respective iliarties' obligations and performance under this Agreement, all as they may be amended from time to time. "City" means the City of Miami, a municipal corporation and a pO1itical subdivision of the State of Florida, and all departments, agendes and instrumentalities thereof "Comprehensive Plan" means the plan adopted by the City pursuant to Chapter 163, Florida Statutes (" F.S."), meeting the requirements of Section Revised 01/02;OS 3 163.3177, F.S., Section 163.3178, and Section 163.3221(a), F.S., which is in effect as of the Effective Date. "County" mans Miami -Dade County, a political subdivision of the State of Florida: ,. "Development" means the carrying out of any building activity, the making of any material changthe use or appearance of any structure or land, or the dividing of land ins°three or more parcels and such other activities described in Section 163.3221(4), Florida Statutes (2004), provided such building activity, change in use or appearance of structure or land or dividing of land either (a) is made within the existing structural footprint of the facilities located on the Property.or (b) does not increase the square footage of the structural footprint of the existing facilities located on the Property by more than twenty percent (20%) ip the aggregate. "Development Approval" means the Existing Zoning. "Downzone" shall refer to any change in regulations that govern the use or development of land (including but not limited to comprehensive plans, land development regulations, subdivision regulations, and any other such regulations), which change would have the effect of imposing niOre restrictive limitations on the use of the Property than those which exist on the Effective Date of this Agreement. ''Effective Date" is the latter of the dates of recordation of this instrument or thirty days after this instrument has been received by the state land planning agency pursuant to Section 163.3239, Fla. Stat. Revised fl k.Q2/O8 4 "Existing Zoning" is comprised of City of Miami Ordinance No 11000, adopted March 8, 1990, and amended through July 2007, which adopts the effective land development regulations governing development of the Throperty. "Flagler" shall have the meaning assigned in the recital clauses above. "Nagler Fiscal Year" means Flagler's fiscal year, which begins on January 1 and ends on Decen ber 31 of each calendar year. "Governing body means the board of county commissioners of a county, the commission or council of an incorporated municipality, or any other chief governing body of a unit oflocal government. "Gross Slot Revenues" shall mean all currency and other consideration placed into any slot machine at the Property, less all payouts to and credits redeemed by players at the Property. "Land" means the earth, water, and air, above, bell v, or on the surface and includes any improvements or structures customarily regarded as land. "Land Development Regulations" means ordinances, ruled and policies enacted or customarily implemented by the City for the regulation of any aspect of development and includes any local government zoning rezoning, subdivision, building construction, or sign regulation or any,„ other regulations controlling the development of or construction upon land in effect as of the Effective Date. "Laws" means ail ordinances, resolutions, regulations, comprehensive plan, land development regulations, and rules adopted by a local government Revised 01 /I21OS 5 affecting the development of land. \ "Localgovernment" means any county or municipality or any special district or local governmental entity established pursuant to law which exercises `regulatory authority over, and grants development permits for, land deelopment.. ''Monthly G'oss Slot Revenues" means all Gross Slot Revenues generated by Flagler during any particular calendar month. "Project" means de'~le,lopment permitted pursuant to the Existing Zoning. "Property" shall have the:meaning assigned in the recital clauses above. "Public facilities" means major capital improvements, including, but not limited to, transportation, sanitary.sewer, solid waste, drainage, potable water, educational, parks and recreational, and health systems and facilities. `"S]ot Machine" means any machine as defined by subsection (8) of section 551.102 Florida Statutes (2007), or any other Applicable Laws. Section 3. Intent. It is the intent of Flagler ard. the City that this Agreement should be construed and implemented so as to effectuate the purposes and intent of the parties and the purpose and intent of the Florida Local Government Development Agreement Act, Section 163.3220, F.S., et. al. Section 4. Term and Effective Date This Agreement shall become effective on the Effective Date. The Agreement shall be recorded in the public records of Miami -Dade County and with the City Clerk and shall have a --teen of twenty (20) years from the Effective Date and shall ccinstitute a covenant running with the land, The term of this Agreement may be extended, as well as Reviscd 01/02/OS 6 any other change to this Agreement, including release or partial release, upon execution of,a written instrument by the City Manager and by Flagler (or its assigns, which may include, but not be limited to a Community Development District and/or a master proper-tyiy'aers' association with appropriate authority aver the Property) and with the consent of they City Commission and the, then owner(s) of a majority of the Property, provided that such change has been approved in advance by the City Commission after public hearing, pursuant to Sections 163.3225, and 163.3229, Florida Statutes. The City may apply subsequently., adopted laws and policies to the Property pursuant to the procedures of Section 163.3233(2), Florida Statutes. This Agreement may not be ienniriated during its term except as expressly provided herein. Notwithstanding any other provision to the contrary, this Agreement shall terminate immediately at the earliest of such time that (a) the voters do not approve by majority vote the issue of whether to permit slot machines during the Special Election or (b) any vote approving such issue is overturned or held invalid (following the expiration of all appeals periods) ([a] and [b] shall each be referred to as an "Event of Early Termination"). Section 5. Compensation a. Beginning on the date that any slot machines re authorized and operating at the Property, and continuing through the terns of the Agreera-sept, Flagler agree' to pay the City an amount equal to the sum of (x) one and one-half pereenfr(i .5%) of the amount of Annual Gross Slot Revenues for the applicable Flagler Fiscal Year that are not in excess of S250,000,000 plus (y) two and one-half percent (2.5%©) of\the amount of Annual Gross Slot Revenues for the applicable Flagler Fiscal Year that are',irt excess of S250,000,000 (the resulting amount, the "Percentage Payment"). For example, if Annual Revised OJ 02/0S 7 Gross Slot Revenues were S280,000,000 during a Flagler Fiscal Year, the total amount of Percentage Payment due the City for that Flagler Fiscal Year would equal S4;500,000.00. Flagleihall pay the Percentage Payment to the City in monthly installments (each such installment,'a.\"Monthly Percentage Payment") based on the amount of Monthly Gross Slot Revenues gel rated in the prior month and such Monthly Percentage Payment shall become due and payable in arrears on the fifteenth (15'h) day of the calendar month following its accrual. An}r,,Monthly Percentage Payment not timely paid to the City by the fifteenth (15th) of each rnanth shall accrue a late fee in an amount of one percent (1 %) of the amount then due per inont or portion thereof until the amount owed has been paid to the City and if such late amount, plus accrued late fee(s) have not been paid within thirty (30) days of the original required payment date, then Flagler may be declared by the City to be in default pursuant to the provisions of Section 26 below. The foregoing Monthly Percentage Payments shall be made as an advance on the total amount of any Percentage Payment owed by Flagler to the City during any Flagler Fiscal Year- A subsequent change of the Flagler Fiscal Year shall nohlter the annual basis unless agreed to in writing by the parties as an amendment to this treement and any subsequent change of the Flagler Fiscai Year shall not decrease the amoopt of any type of payments to the City. b. Flagler shall submit payment of any fees required to paid by the terms and conditions of this Agreement by corporate check made payable to tlt City by delivery to the following address: City of Miami Attn: City Manager 3500 Pan American Drive Miami, Florida 33133 Revised 0I /02/08 8 c. Together with each Monthly Percentage Payment due pursuant to the ms and conditions of this Agreement, Flagler shall submit to the City an accounting of the erasion of the slot machines and the computation of any fees imposed pursuant to this Agre 1nent for the relevant period of time during which any such fees accrued. Sect/ Auditing and Inspection Rights and Record Retention. The City all have the rights to inspect and/or to cause to be inspected by any of its duly authorized reresentatives Flagler's place of business at the Property and the track and to audit and/or cause to be audited by any of its duly authorized representatives the books, records, documentsf_papers, and accounts of Flagler, in each case as required by law and to the extent directly relating to the calculation of Gross Slot Revenues and the Monthly Percentage Payments and any other payments to the City pursuant to this Agreement, and upon reasonable notice, yin a reasonable manner, at a reasonably mutually -agreeable time and place within t}te City, in order to ascertain the correctness of the Gross Slot Revenues, the Monthly Percentage Payments, and any other payments required to be made to the City pursuant to this A\ cement, including the accurate reporting of Gross Slot Revenues and the deterninatt n of Monthly Percentage Payments and the determination of any other payments required tONbe made to the City under this .Agreement. Flagler shall keep such books, records, docurn nts, papers, and accounts within the City at its principal place of business and as may be°necessary in order to record complete and correct entries related to the calculation of Gsss Slot Revenues, the Monthly Percentage Payments, and any other payments required to barnacle to the City pursuant to this Agreement. All books, records, documents, papers, andccounts of Flagler relating to Gross Slot Revenues shall be kept in written form, or in a form capable Revised 0l102 08 9 of conversion into written Form within a reasonable time, and upon reasonable request to do so, Flagler shall make same available at no cost to the City in written form. Audited financial statements of Flagler which in addition details the amount of Annual Gress Slot Revenues, the final Monthly Percentage Payments, and any other payrne ts, to the City for that fiscal year shall be provided to the City within four (4) months of the close of each fiscal year of Flagier, Flagler agrees to provide access to the City or to any of its duly authorized representatives, to any books, documents, papers, accounts, and records of Flagler that are directly pertinent to this Agreement, for the purpose of audit, inspection, examination, excerpts, and transcripts. Flagler shall preserve and make available at a location within the City, at reasonable times ` following receipt of written notice, for examination, inspection, and audit by the City arid/or its duly appointed representatives, all financial records, supporting documents, statistical records, account records, related papers, and any other documents pertinent to the calculation of Gross Slot Revenues and the Gross Slot Revenues payments, Monthly Percentage Payments, and any other payments required to be made to the City pursuant to this 'agreement for the required retention period of the Florida Public. Records Act (Chapter I I9;=Florida Statutes), if applicable, or, if the Florida Public Records Act is not applicable, for minimum period of three (3) years after the creation of the record or from the date of finapayment, whichever is longer. If any audit has been initiated and audit findings have not been"solved at the end of the retention period or three (3) years, whichever is longer, the books`. records, documents, papers and accounts shall be retained until resolution of the audit findings. If the Florida Public Records Act is determined to be applicable to Flagler's records relating to Gross Re\l ed0208 10 Slot Revenues, Monthly Percentage Payrnents, and any other payments required to be made to the City, Flagler shall comply with all requirements thereof; however, no confidentialityvor non -disclosure requirement of either federal or state law shall be violated by Flaglr. Any incompl' to or incorrect entry or entries in excess of Two Hundred Thousand and 00/100 Dollars (S 2()0 O00.O0) of=cumulative, annual funds that should have been paid to the City as a Gross Slot -,.,Revenues payment, a Monthly Percentage Payment, or any other payments required to be made to the City, in a particular fiscal year in such books, documents, papers, records, and accounts shall be a basis for the City`s applying an administrative fee of ten percent (10%)'.Qf any amount owed to the City plus interest in an amount of one percent (1 %) per month or Portion thereof until the amount owed has been paid. Any underpayment of arty amount shall;be paid by Flagler to the City within ten (i 0) days of notice of the audit finding, including any underpayments accruing interest and the administrative fee if owed. Flagler's failure to adhere to, or refusal to cordp y with, the provisions of this Section 6 shall result in an Event of Default under this Agi\ ement, subject to applicable cure and/or grace period(s). Section 7. Development Fees and License Fees. Ftagler shall pay (i) all permit, processing, review and impact fees as may be required purse ant to the Codes of the City and the County and other Applicable Laws as such fees becom-due and payable with respect to the Project (these fees, collectively, the "Development Fes") and (ii) all occupational and any other license fees as may be required by the Codes ofhe City and the County and other Applicable Laws as such fees become due and payable with respect Rc rs^d 0J!i 2 )5 11 to the business operations at the Property and the track (those fees, collectively, the "License Fees"). a. Flagler shall be entitled to a credit against its obligation to pay Percentage Payments, in an amount equal to the Development Fees that Flagler pays to the City, subject to the terms at d conditions of this Section 7 and subsection (b) below regarding the track oval. After th'e payment of any Development Fees to the City, Flagler shall be entitled to deduct the amoi;t of Development Fees paid to the City from the amount of any subsequent Monthly Percentage Payment that exceeds S140,000.00 (that amount, the "Monthly Credit Threshold Arnourat"), except that the total amount of credit taken against any particular Monthly Percentage Payment shall not result in that. Monthly Percentage Payment being less than S140,000.00 (tie positive difference between the amount of a Monthly Percentage Payment and the Monthly Credit Threshold Amount, the "Maximum Monthly Credit Amount"). Flagler shall also be similarly entitled to a monthly credit against Monthly Percentage Payments in the amourt,_of the fees assessed by the City as set forth in the Codes of the City for the administrhtive processing and review of applications for development permits for square footage h ed for slot machines, the amphitheater and a food court, together with all ancillary uses,'S2,abmitted to the City for review and approval provided that such monthly credits, together \;,'-k.ith any credits taken with respect to Development Fees paid to the City, do not exceed the Maximum Monthly Credit Amount in any given month. To the extent that the cumulative am cunt of credits for Development. Fees paid to the City and permit processing and applicatiorr\fees paid to the City to which Flagier is entitled are in excess of the Maximum Monthly Credit Amount for an' particular month; Flagler shall be entitled to carry such credits over to Revised t)I/CVOS 12 any and all subsequent months during which the Monthly Credit Threshold Amount is exceed. The total amount of Percentage Payment(s) due during any Flagler Fiscal Year shall be adjpsted downward by the total amount of any credits for amounts paid to the City and allowed during that Hagler Fiscal Year pursuant to this Section 7. Far exampl' \as to how the credits in the immediately -preceding subsection shall operate, assume the an punt of the Gross Slot Revenues at Flag]er during the initial full month of slot machine operations was S1 1,250,000.00 and Flaglerhad paid development impact fees to the City in a total amount of S50,000.00 and permit application processing fees in a total amount of $30,000." 0. The amount of the Monthly Percentage Payment accrued to the City for the initial full 'month of slot operations would be Si 68,750.00 (e.g., 1.5% of S1 1,250,000.00). Flagler_ouid, however, be entitled to offset the total amount of the development impact fees and application processing fees up to the amount of Flagler's Monthly Maximum Credit A3nount'`f 528,750.00 (e.g., S168,750.00 less S140,000.00). The remaining S51,250.00 in develotent impact fees and permit application processing fees would then roll over and bevailable to be credited against the amount of the next Monthly Percentage Payment or secs of Monthly Percentage Payments in excess of S140,000.00 until such time that such ciiedits have been exhausted. and subject to any adjustment pursuant to subsection (b) below regarding the track oval. b. Flagler's right to offset Development Fees againstLL4rs obligation to pay Monthly Percentage Payments pursuant to subsection (a) above shall b'e., limited to those Development Fees that are payable in connection with building activity;Vehabilitation and other developrrrent ancillary to the gaming operations on the Property or Made within (i) the existing structural footprint of the clubhouse facility and the racing oval on the Revk-d Oi1O,2'O8 13 Property, and (ii) areas that do not, in the aggregate, increase the square footage of the structural footprint of the existing facilities located on the Property by more than twenty percer (20(li%) in the aggregate, provided that credits for Development Fees Payable in connection, with the building activity, rehabilitation, and other development made within the racetrackova] shall be limited to improvements and structures not exceeding Ten Mil'ion Dollars ($10,000,000.00) in hard costs to construct, c. Flagler and the City acknowledge that Flagler is required to obtain the City occupational heats elated to slot machine operations pursuant to the Codes of the City and the County during the term of this Agreement and that the City shall charge only one occupational license fee for Flagler's entire slot machine operations at the Property unless the City is otherwise requiredto charge more than one occupational license fee pursuant to State statutes or County ordinances, and that any such occupational license fee(s) imposed by ordinance of the City"° shall comport with State and County requirements in a non-discriminatory manner. Flagler further acknowledges that it shall pay any occupational license fee related to slot machine operations to the City when due andayable. Flagler and the City acknowledge that after Flagler has paid a threshold amour' totaling Twenty Thousand Dollars (S20,000.00) for its slot machine related occupational. license at the Property, then Flagler shall be entitled to a credit against its monthly obligation to pay Monthly Percentage Payments for any amount of slot machine -related occupational license paid by Flagler to the City in excess of such Twenty Thousand Dollars (S20,0(}.00). Flagler and the City acknowledge that Flagler will not receive a credit for an}y other type of occupational or other license fees paid or to be paid by Hagler to the City. Revised 01/02 o8 14 .Section 8. Peimitied Development Uses and Building Intensities. (a) Permitted Development Uses. Prior to the adoption and acceptance of `this Agreement, the City has designated the Property as C-2 ("Liberal Comnercial") on the official zoning Atlas of the City, pursuant to the City's Land Development Regulations ("Existing Zoning"). In granting the Existing Zoning, the City hasydeten-nined that development and uses thereunder are consistent with the City's Comprehensive Plan and that it is in accordance with the City's land development regulations in effect as of the Effective Date. Upon execution of this Agreement and for the duration thereof, the City confirms and agrees that the Property may be developed, and used for the purposes established in the City's Comprehensive Han and .arid Development Regulations in effect as of the Effective Date of this Agreement, er such laws and policies subsequently adopted and applied to the Property solelyypursuant to the procedures of Section 163.3233(2), Florida Statutes. The City acid Flagler mutually consent and agree that the additional limitations and conditions slet forth in this Agreement serve as the sole basis upon which the parties enter into this\Agreement_ (b) Density, Building Heights, Setbacks ei d Intensities. Except as otherwise provided herein, the maximum height, setbacks.,and intensities for any development on the Property shall be regulated by the '•hand Development Regulations in effect as of the Effective Date and the applicable designations in the City's Comprehensive Plan. Section 9. Project Approval. R vised©I!02i 8 15 a) Further Del,eloprnent Review. The Existing Zoning, the Land Development Regulations, the Comprehensive Plan, and this Agreement establish the criteria upon which the Property shall be developed during the term of this Agreement. Doiin:oning. For the duration of this Agreement, the City shall not1Downzone the Property or otherwise limit the ability of Flagler to develop the Property in accordance with the Development Approvals and nothing shall, prohibit the issuance of further development orders and approvals in conformity with same for the Property. However, the City may apply subsequently adopted laws and policies to the Property, solely pursuant to the procedures of Section 163.3233(2), Florida Statutes. Section 10, Public Services and Facilities; Concurrencv. For the purposes of concurrency review, it is hereby found that, throughout the duration of this Agreement, sufficient infrastructure capacities will be reserved\and remain available to serve this Project. Ali subsequent development orders or permits fought to be issued which are in conformity with this Agreement are hereby found to meet '69ncurrency standards set forth in the Comprehensive Plan as such standards may be arriended from time to time (concurrency regulations) and to be consistent with Land Deve]bprnent Regulations, so long as Flagler develops the Property in compliance with the tens and conditions contained within the Existing Zoning and this Agreement. Noti thstanding the foregoing, Flagler acknowledges that the City is not responsible (i) for water and sewer service and those other services provided by the County and (ii) for any commercial solid waste removal and/or recycling contract that Flagler may have from time to time with a Re,iscd 01 /02108 16 private hauler (collectively, the "Non -City Services"), and as such; the City can not guarantee adequate capacity with respect to Non -City Services. Section 11. Reservation or Dedication of Land. Except as otherwise provided below and Pprsuant to applicable subdivision regulations; Flagler shall not be required to dedicate or resee any land within the Property for municipal purposes. Section 12. Local Development Pennits. The development. of the Property in accordance with the Existing Zoning is contemplated by Flagler. The City may need to consider certain additional delopinent permits in order for Flagler to complete the Project in a manner consistent` with the Development Approvals and the Land Development Regulations in effect as.. of the Effective Date and Comprehensive Plan designations affecting the Property, such a: (a) (b) Land Improvement Permits (c) (d) special permits; (e) Covenant or Unity of Title acceptanc;or the release of existing unities or covenants; (f) Building permits; Site Plan approvals; Subdivision plat and or waiver of Plat approvals; (g) Certificates of use and/or occupancy; and (h) Any other official action of the City having the effect of permitting the development of land. Rev scd 01102108 17 Section 13. Consistency with Comprehensive Plan. The City hereby finds that the development of the Property in conformity with the Existing Zoning is consistent with the City's Land Development Regulations and Comprehensive Plan designation as of the Effective Date and shall not be subject to any future changes to the City's Land Development Relvplations and Comprehensive Plan designation after the Effective Date; provided, however, t City may apply subsequently adopted laws and policies to the Property solely pursuant tithe procedures of Section 163.3233(2), Florida Statutes.: Section 14. Necessity's, of Complying with Local Regulations Relative to Development Permits. Flagler and 'the City agree that the failure of this Agreement to address a particular permit, condition, fee, term, license, or restriction in effect on the Effective Date of this Agreement shall not i`elieve Flagler of the necessity of complying with the regulation governing said pernnitting-erequirernents, conditions, fees, terms, licenses, or restrictions as long as compliance with''aid regulation and requirements do not require Flagler to develop the Property in a manrt r that is inconsistent with the Development Approvais. Section 15. Reservation of Development Rights. Fa; the term of this Agreement, the City hereby agrees that it shall permit the development c'rff the Property in accordance with the City's Land Development Regulations, the City's Comprehensive Plan, and existing laws and policies as of the Effective Date of this Agreement`'hich are or may be applicable to the Property, subject to the conditions of this Agreement. However, nothing herein shall prohibit an increase in developmental density or intensity within the Property in a manner consistent with the City's Comprehensive Plan and Land Revised 0i/02/08 18 Development Regulations, or any change requested or initiated by Flamer in accordance with applicable provisions of law. Moreover, the City may apply subsequently adopted laws\ and policies to the Property solely pursuant to the procedures of Section 163.323(2), Florida Statutes. The eNpiration or termination of this Agreement, for whatever reason, shall not be considered a wai:er of, or limitation upon, the rights, including, but not limited to, any claims of vested right .pr equitable estoppel, obtained or held by Flagler or its successors or assigns to continue development of the Property in conformity with the Development Approvals and all prior and subsequent development permits or development orders granted by the City, including, but not, limited to, those rights granted under the City's Comprehensive Plan and land development regulations. Section ] 6. Notices All notices, demands and requests which\nay or are required to be given hereunder shall, except as otherwise expressly provided, be in writing and delivered by personal service or sent by telex, telecopy, telegram, \ tnited States Registered or Certified Mail, return receipt requested, postage prepaid,\or by overnight express delivery, such as Federal Express, to the parties at the addresse .and telecopy numbers listed below. Any notice given pursuant to this Agreement shall be'deemed given when received. Any actions required to be taken hereunder which fall on Sato day, Sunday, or United States legal holidays shall be deemed to be performed timely when aken on the succeeding day thereafter which shall not be a Saturday, Sunday or legal holidayv To the City: sed CIfC2O t City Manager City of Miami 19 With a copy to: With envies to: 3500 Pan American Drive Miami, FL 33133 City Attorney Miami Riverside Center 444 S.W. 2nd Ave., 10t Floor Miami, FL 33130 West Flagier Associates, Ltd. Attn: Lori Weems, General Counsel 401 N.W. 38th Ct. Miami, FL 33126 Holland & Knight LLP Attn: Joe Dewey 701 Brickell Ave., Ste. 3000 Miami, FL 33131 Any Party to this Agreement may,change its notification address(es) by providing written notification to the remaining parties pursuant to the terns and conditions of this section. Section 17. Agreement Not a Lease It is agreed that this Agreement is not a,lease, and that no interest or estate in, or lien on, real property or improvements is created by'this Agreement. Section 18. Indemnification; Risk of Loss. andJnsurance a. lndeinnification: Flagier agrees to indemnify, protect, defend, release, and hold harmless the City, its officials, agents, employees, and contractors, and each of them from and against all suits, actions, claims, demands, damages, losses penalties or fines, expenses, attorneys' fees, costs and liabilities of every kind or deseriptiob,to which the City, its officials, agents, employees, or contractors may be subjected which e caused by or arise out of, in whole or in part, (i) the negligent acts (whether active or passive or in strict liability), intentional misconduct, omissions, or defaults of Hagler or its agents, employees, officers, or contractors, which arise from, grow out of, or are connected with Revised 01102108 20 this Agreement; except to the extent that such damage, loss or liability is caused by the negligence of, or intentional misconduct of the City or its officials, employees, agents or contractors, and (ii) the failure of Flagler to comply materially with any of the requirements herein, or the failure of the Flagler to conform to statutes, ordinances, or other re( lations or requirements of any governmental authority, local, federal or state, in connection th the performance of this Agreement. This indemnity obligation shall apply regardiess�yf whether such suits, actions, claims, damages, losses, penalties, or expenses and costs l''e, against or sustained by others to whom the City, its officials, agents, employees, or contractors may become liable. Upon request of the City, Flagler shall undertake to defend, at its .sole cost and expense, any and all suits brought against the City in connection with the matters specified in this Section, in the event such suit is solely caused by the negligence, ornissio.%;,or default by Flagler or its agents, employees, officers, or contractors., Flagler shall have,, the right to cooperate in the defense, including the selection of private counsel, if any, a ats sole cost and expense, against any suit, action, claim, demand, damage, loss, penalty ()Nine made by any party to this Agreement or any third party that could reasonably and fsseeably result in a material adverse impact on the amount of Gross Slot Revenues generated or capable of being generated at the Property, provided however that nothing contained erein shall limit the City's right to direct the defense, b. Risk of Loss: The City and its officials, employees, agnt.s, and contractors assume no responsibility whatsoever for any person(s) or property that enter ti } Flagler's Property for the Project as a result of, or in connection with, this Areemet. In consideration of the execution of this Agreement by the City, the Flagler releases and `. Revised 01i01'08 21 wal�ves all claims against the City, its officials, employees, agents, and contractors from any and all liability for\any loss, injuy, death, theft, damage or destruction to any persons or property which may occur in or about the Property regardless of the cause. c insurance. Nagler fully understands that it shall be its responsibility to secure its own insurance coverage(s). Hagler shall, at all times during the term hereof, maintain such insurance coverage(s) as may be required by Flagler for the Building, the Property, and the Project and all persons entering thereon, and all equipment and instruments stored thereon, including any of Flagler's equipment and instruments required for development of the Project and its ongoing operations. Flagler shall be responsible for assuring that the insurance coverages remain in full force and effect for the duration of this Agreement, including any extensions hereof. Compliance with the foregoing insurance requirements shall not relieve Flagler of its liabilities and obligations under this Agreement. Section 19. Exclusive Venue, Choice of Law. S jcific Performance It is mutually understood and agreed by the parties }hereto, that this Agreement shall be governed by the laws of the State of Florida, and any applicable federal law, both as to interpretation and performance, and that any action at law, suif'`an equity or judicial proceedings for the enforcement of this Agreement or any provision'`\.jiereof shall be instituted only in the courts of the State of Florida or federal courts and venue for any such actions shall lie exclusively in a court of competent jurisdiction in the O unty. In addition to any other legal rights, the City and Fiagler shall each have the right to=;specific perfo,,„ance of this Agreement in court. Each party shall bear its own attorne's fees. Each party waives any defense, whether asserted by motion or pleading, that the Revised 0 i;022/08 22 aforementioned courts are an improper or inconvenient venue. Moreover, the parties consent to the personal jurisdiction of the afore entioned courts and irrevocably waive any objections to said jurisdiction. The parties irrevocably waive any rights to a jury trial. Section 20?, Voluntary Payment and Voluntary Compliance Flagler and the°\City each agree that in the event all or an.y pail of this Agreement is struck down by judiciaNproceeding or preempted by legislative action, Flagler and the City shall continue to honorIhc terms and conditions of this Agreement to the extent allowed by law. Section 21. No Oral Change or Termination This Agreement and the exhibits and appendices appended hereto and incorporated herein by reference, if any, constitute the entire Agreement between the parties with respect to the subject inatter hereof:, This Agreement supersedes any prior agreements or understandings between the parties 'with respect to the subject ratter hereof, and no change, modification or discharge herebsf in whole or in part shall be effective unless such change, modification or discharge is irk writing and signed by the party against whom enforcement of the change, modification or c kscharge is sought. This Agreement cannot be changed or terminated orally. Section 22. Compliance with Applicable Laws Throughout the Term of this Agreement, Flagler shall comply with a1:1 Applicable Laws, subject to the teens and conditions of this Agreement. } z4 Section 23. Representations; Representatives Each party represents to the other that this Agreement has been duly authoized, delivered and executed by such party and constitutes the legal, valid and binding Revised Ci10248 23 obligation of such party; enforceable in accordance with its terms. The City Manager shall be the City's representative in connection with the execution of and teiu is and conditions of this:, Agreement. Barbara Havenick shall be Flagler's representative in connection with the execution of and the tenors and conditions of this Agreement. The foregoing provisions are not intended to impose any personal liability on the City Manager or Barbara Have nc',for the City's or Flagler's obligations and liabilities under this Agreement. Section 24. No Exclusive Remedies No remedy or election given by 'any provision in this Agreement shall be deemed exclusive unless expressly so indicated. Wherever possible, the remedies granted hereunder upon a default of the other party shall be cumulative and in addition to all other remedies at law or equity arising from such event of default, except where otherwise expressly provided. section 25. Failure to Exercise Rights not a Waiver; Waiver Provisions The failure by either party to promptly exercise any t=4,ght arising hereunder shall not constitute a waiver of such right unless otherwise expressly provided herein. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and nt waiver shall be effective unless made in writing. Section 26. Events of Default (a) Flagler shall be in default under this Agreement if any of the following Revisers 0I/02/08 events occur and continue beyond the applicable grace period: (i) Flagler fails to comply timely with any payment obligation which 24 is not cured within fifteen (15) days from Flagier's failure to meet such payment obligation. (ii) Flagler fails to perform or breaches any tern, covenant, or condition of this Agreernent which is not cured within thirty (30) days after receipt of written notice from the City specifying the nature of such breach; provided, however, that if such breach cannot reasonably be cured within thirty (30) days, then Flagler shall not be in default if it commences to cure such breach within said thirty (30) day period and diligently prosecutes such cure to completion, (iii) ]f Flagler shallbe adjudicated bankrupt, or if Flagler shall make a general assignment -...for the benefit of creditors, or if in any proceeding based upon the insolvency of Flagler are commenced and not dismissed within sixty (60) days of filing or a receiver is appointed far all the property b:f Flagler which is not dismissed within sixty (60) days of such apporatrnent. (b) The City shall be in default under this Agreement if the City fails to Revised 01(02108 perform or breaches any terra, covenant, or condition of this Agreement and such failure is not cured within thirty (30) days after receipt of written notice from Flagler specifying the nature of such breach; provided, however, that if such breach cannot reasonably be cured within; thirty (30) days, the City shall not be in default if it commences to cure such breach within said thirty (30) day period and diligently prosecutes such cure to 25 completion. Section 27. Remedies Upon Default Upon t1e occurrence of a default by Flagler under this Agreement not cured within the applicable grace period, Flagler and the City agree that the City, in addition to any other rights provided by law, shall have the right to impose a lien on the land on which the Property is located. Section 28. Severability If any teen or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, hereafter be determined to be invalid or unenforceable, the remainder of this Agreement or the application of such terrn or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby and shall continue in fill] force and effect. Section 29. Assienrnent and Transfer This Agreement shall be binding on Flagler and -its heirs, successors and assigns. Flagler shall not assign this Agreement without the prior written`aonsent of the City which shall not be unreasonably withheld or denied, except that Flagler may assign this Agreement, without the consent of the City, to a transferee of all or a portion of the Property. Section 30, Oblie.ations Surviving Tesniiination Hereof Notwithstanding and prevailing over any contrary term or provision contained hereip, in the event any party hereto exercises any lawful termination rights herein, the followig obligations shall survive such termination and continue in full force and effect until the\ expiration of a one year team following the earlier of the effective date of such R '.ns0II021O6 26 termination or the expiration of he Terrn: (i) any and all outstanding payment obligations hereunder of any party hereto arising prior to termination; (ii) any and all indemnity obligations (including but not limited to obligations to defend, release, and hold harmless) , riskof loss provisions, and insurance provisions hereunder of any party hereto; (iii) the excusive venue and choice of law provisions contained herein; (iv) rights of any party arising du'ring or attributable to the period prior to expiration or earlier termination of this Agreement, and (v) any other term or provision herein which expressly indicates either that it survives the termination or expiration hereof or is or may be applicable or effective beyond the expiration or permitted early termination hereof. Section 31. Lack of.Aaencv Relationship Nothing contained herein shall be construed as establishing an agency relationship between the City and Flagler and neither Flagler nor its employees, agents, contractors, subsidiaries, divisions, affiliates or guests shall be teemed agents, instrumentalities, employees, or contractors of the City for any purpose hereunder, and the City, its contractors, agents, and employees shall not be deemed contractors, agents, or employees of Flagler or its subsidiaries, divisions or affiliates. Section 32. Non -Exclusivity Nothing in this Agreement is intended to create any exclusive rights iri\Flagler to conduct slot machine operations within the County or the City. In the event chat by operation of law other persons are authorized to conduct slot operations within` the County or the City, then the County or City (to the extent that additional slot machin4s may be authorized within the City) may permit, authorize and regulate such business and may enter into contracts to the same or similar effect as contemplated by this Agreement Revised O1/Cri08 27 pursuan without incurring any liability, contractual or otherwise, to Flagler. Section 33, if the City lakes affirrnative action by way of ordinance, resolution or otherwise regarding the Property and that would have the reasonable or foreseeable result of negatively innpac ing the generation or capacity of generation of Gross Slot Revenues at j \ the Property, then the'City and Flagler agree to negotiate in good faith to revise the terrns and conditions of this Agreement. By exception, the City shall have no good faith obligation in the event the City's affirmative action is mandated by County or State law. if and until such time as an amendment or revised agreement is executed, all terms and conditions of this Agreement shall remain in place. Nothing herein shall be construed to obligate the City to revise any term or condition of this Agreement. Section 34, Covenant Not to Sue Flagler hereby covenants that it shall 'rapt commence or maintain any lawsuit, administrative proceeding, or other action, whetherat law or in equity, which challenges the validity or enforceability of this Agreement, any proy!ision of this Agreement or any payment obligation under this Agreement. This covenantyshall be binding upon, and inure to, the benefit of the parties, their successors, assigns, heirs, legal representatives, and personal representatives. Section 35. Cooperation, Expedited Petniitting and Time is of ie Essence The Parties agree to cooperate with each other to the full extent practicable o the te?uts and conditions of this Agreement, The Parties agree that\ime is of the essence in all aspects of their respective and mutual responsibilities pursuant to this Agreement. The Parties agree to work together, to the extent practicable and allowed by Rev isedOj INAS 28 Law, towards the goal of maximizing the Gross Slot Revenues generated at Flagler's Property at the earliest possible time. The City shall use its best efforts to expedite to the exterit reasonably practical the permittingand approval process to an effort to assist the Flagler in achieving its demolition, dexelopment and construction milestones. The City will accommodate requests from Flagler's general contractor and subcontractors for review of multiple permitting packages, s`ch as those for site work and foundations, and building shell, core and interiors. In addition, tke City will designate an individual within the City Manager's office who will serve as the Cityy's point of contact and liaison with Flagler in order to facilitate expediting the processing and issuance of all permit applications. Notwithstanding the foregoing, and subject to the provisions of Section 550, Florida Statutes, the City shall not be obligated to issue development approvals or permits to the extent Easier does not comply with the applica blee requirements of the City's land development code and applicable building codes, Section 36. Acknowledaernent of App]ication`Vith Chapter 550, Florida Statutes. Nothing contained in this Agreement is intend to (i) limit or abridge any of Flagler's rights or privileges under Chapter 550, Florida Statutes, or (ii) permit the City to require any permits, approvals or licenses in operation of the Project in contravention of the connection with the Development or provisions of Chapter 55:'0, Florida Statutes, including, without limitation, Section 550.155. Section 37. Cancellation and Enforcement. In the event that Nagler, i s successors andr'or assigns fails to act in accordance with the terms of the Existing Zoning, the City shall seek enforcement of said violation upon the Property. Re,iscd 01!02'Ot 29 Enforcement of this Agreement shall be by action against any parties or person violating, or attempting to violate, any covenants set forth in this Agreement. The prevailing party in any action or suit pertaining to or arising out of this Agreement shall he entitled to recover, in addition to costs and disbursements allowed by law, such sum as the Court may adjudge to be reasonable for the services of his/her/its attorney. This enforciNxnent provision shall be in addition to any other remedies available at law, in equity or bdth. Section8. First Source Hiring and Local Preference Commitment. Flagler hereby acknowledges and agrees that it will adopt and implement an employment policy pursuant to which it w 11 give a preference in the hiring process to residents of the City, including but not limited to qualified local minorities and qualified local small businesses, when faced with otherwise equally -qualified applicants for positions at Flagler. Section 39. Use of Larne: Flagler understands and agrees that the City is not engaged in research for advertising, sales promotion,or other publicity purposes. Flagler agrees not to use the narne of the City in connection with the Project or this Agreement without prior written consent of the City Manager or the C .y Commission, except that the foregoing shall not prohibit Flagler from (i) using the term "Magic City" in the name of the Property and other advertising materials, and (ii) referring to the City of Miami as part of the address for the Property, or (iii) using the name "City of Miami" in any other way or context which is otherwise not prohibited by applicable law. 40. No Conflict of Interest: Pursuant to City of Miami Code Sec ion 2- Rc,ised 0€102108 30 611, as arnended ("City Code"), regarding conflicts of interest, Flagler hereby certifies to City that none of the officers or owners of Hagler nor any immediate family member of any of the same is also a member of any board, commission, or agency ofihe City. Flagleshall use its reasonable efforts to inform the City throughout the terra of this Agreeanent, �r Flagler later determines that any of its employees, contractors, subcontractors, ora,ny immediate family member of any of the same is also a member of any board, commission-pr agency of the City. 41. No Third-P-tv Beneficiary No persons or entities other than the Flagler and the City (and their heirs, successors and assigns) shall have any rights whatsoever under this Agreement. 42, Counterparts, This Agreement may be executed in three or more counterparts, each of which shall constitute ,an original but all of which, when taken together, shall constitute one and the same agreement. NOW, WHEREOF, the City and Flagler have .paused this Agreement to be duly executed. CITY OF MIAMI, FLOIIDA, a municipal corporation and political subdivision ofethe State of Florida ATTEST: By Pedro G. Hernandez, City Manager Priscilla A. Thompson, City Clerk Approved as to Insurance Requirements Approved as to Form and Correctness: By: By LeeAnn Brehm, Risk Management Jorge L. Fernandez, City Attorney Director Remised o1/o2138 31 -Witnesses (if partnership): WEST FLAGLER ASSOCIATES, LTD., a Florida limited partnership By: Narne: Title: (Print Name) (Print Name) ATTEST: Print Name of Secretary STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged befo?e\me this day of 2008, by , as \ for WEST FLAGLER ASSOCIATES, LTD. Signature of Notary Public Print, Type or Starnp Commissioned Name of Notary Public \ Personally Known OR Produced Identification Type of Identification Produced Rev ised 01102/'08 32 Attachments and 4xhibits to be attached upon document execution Revfsd 0I /©2-VOS 33