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HomeMy WebLinkAboutExhibit 2-SUBDEVELOPMENT AGREEMENT BETWEEN CITY OF MIAMI, FLORIDA AND FLORIDA GAMING CENTERS, INC. A FLA. CORP., D/B/A MIAMI JAI -ALAI REGARDING SLOT MACHINES AT MIAMI JAI -ALAI PROPERTY THIS AGREEMENT is entered this day of , 2008, by and between FLORIDA GAMING CENTERS, INC. A FLA. CORP., D/B/A MIAMI JAI -ALAI, a Florida corporation (hereinafter referred to as "Miami Jai -Alai"), 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 Miami Jai -Alai recognize that each entity impacts the health and general welfare of the residents of the City; WHEREAS, Miami Jai -Alai owns and operate a jai-alai/gaming facility and its related business operations of the clubhouse building, the fronton, and the related parking facilities and Miami Jai -Alai is the owner of those certain parcels of land on which the Miami Jai -Alai clubhouse building, the fronton, the parking and its related business operations of the clubhouse building and the fronton are located within the boundaries of the City located at 3500 N.W. 37th Avenue, the legal descriptions of which and property tax folio numbers for which are attached hereto as composite Exhibits "A" (collectively, the "Property") and certain parking facilities owned and operated by Miami Jai -Alai are located within unincorporated Miami -Dade County and are not the subject of this Agreement; Final 07-2597 WHEREAS, expansion of wagering capabilities to include slot machines in the business operations at the Property will generate substantial additional revenues for the City; 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 Miami Jai -Alai 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 Miami Jai -Alai 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, Miami Jai -Alai desires to assist the City in mitigating, minimizing, 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 Miami Jai -Alai 's slot machine operations at the Property in the City; WHEREAS, the City Commission pursuant to Resolution No. 08-0017, adopted January 10, 2008 (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 Miami Jai -Alai 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; Fia al 07-2597 2 and c) A pronoun in one gender includes and applies to other genders as well; d) The terms "hereunder", "herein", "hereof", "hereto" and such similar 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 Miami Jai -Alai as both parties are the drafters of this Agreement. i) 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 Miami Jai -Alai . "Annual Gross Slot Revenues" means the combined total amount of Gross Slot Revenues realized in any Miami Jai -Alai Fiscal Year. "Applicable Laws" means those applicable federal, state or local laws, rules, regulations, codes, ordinances, resolutions, administrative orders, schedules, pen nits, decrees, tariffs, policies and procedures and orders which govern or relate to the respective Parties' obligations and perfor nance under this Agreement, all as they may be amended from time to time. Final 07-2597 3 "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 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 Final 07-2597 4 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. "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. "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 signregulation or any other regulations controlling the development of or construction upon land in effect as of the Effective Date. Final 07-2597 5 "Laws" means all ordinances, resolutions, regulations, comprehensive plans,l development regulations, and rules adopted by a local government affecting the development of land. "Local government" means a:ny 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.. ";.Miami Jai -Alai " shall have the meaning assigned in the recital clauses above. "Miami Jai -Alai Fiscal Year" means Miami Jai -Alai 's fiscal year, which begins on January 1 and ends on December 31 of each calendar year. "Monthly Gross Slot Revenues" means all Gross Slot Revenues generated by Miami Jai -Alai during any particular calendar month. "Project" means development 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. "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 Miami Jai -Alai 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. Final 07-2597 and 6 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 --tetra 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 any other change to this Agreement, including release or partial release, upon execution of a written instrument by the City Manager and by Miami Jai -Alai (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 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 Ternrttnation"). Section 5. Compensation a. Beginning on the date that any slot machines are authorized and operating at the Property, and continuing through the term of the Agreement, Miami Jai -Alai Final (37-2597 7 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 Miami Jai -Alai 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 Miami Jai -Alai Fiscal Year that are in excess of $250,000,000 (the resulting amount, the "Percentage Payment"). For example, if Annual Gross Slot Revenues were $280,000,000 during a Miami Jai -Alai. Fiscal Year, the total amount of Percentage Payment due the City for that Miami Jai -Alai Fiscal Year would equal $4,500,000.00. Miami Jai -Alai 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 (15th) day of the calendar month following its accrual. Any Monthly Percentage Payment not timely paid to the City by the fifteenth (15th) 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 Miami Jai -Alai 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 Miami Jai -Alai to the City during any Miami Jai -Alai Fiscal Year. A subsequent change of the Miami Jai -Alai Fiscal Year shall not alter the annual basis unless agreed to in writing by the parties as an amendment to this Agreement and any Final 07-2597 8 subsequent change of the Miarni Jai -Alai Fiscal Year shall not decrease the amount of any type of payments to the City. b. Miami Jai -Alai shall submit payment of any fees required to be paid by the terms 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 c. Together with each Monthly Percentage Payment due pursuant to the terms and conditions of this Agreement, Miami Jai -Alai 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 Miami Jai -Alai 's place of business at the Property and the Property and to audit and/or cause to be audited by any of its duly authorized representatives the books, records, documents, papers, and accounts of Miami Jai -Alai , 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 Final O7-2597 9 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. Miami Jai -Alai 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 Miami Jai -Alai relating to Gross Slot Revenues shall be kept in written form, or in a form capable of conversion into written form within a reasonable time, and upon reasonable request to do so, Miami Jai -Alai shall rnake same available at no cost to the City in written form. Audited financial statements of Miami Jai -Alai 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 Miami Jai -Alai . Miami Jai -Alai agrees to provide access to the City or to any of its duly authorized representatives, to any books, documents, papers, accounts, and records of Miami Jai -Alai that are directly pertinent to this Agreement, for the purpose of audit, inspection, examination, excerpts, and transcripts. Miami Jai -Alai 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 k inai 07-2597 I0 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 Miami Jai-Alai's records relating to Gross Slot Revenues, Monthly Percentage Payments, and any other payments required to be made to the City, Miami Jai -Alai shall comply with all requirements thereof; however, no confidentiality or non- disclosure requirement of either federal or state law shall be violated by Miami Jai -Alai . Any incomplete or incorrect entry or entries in excess of Two Hundred Thousand and 00/100 Dollars ($200,000.00) 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 (l0%) of any amount owed to the City plus interest i.n 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 Miami Jai -Alai to the City within ten (10) days of notice of the audit finding, including any underpayments accruing interest and the administrative fee if owed. Final 07-2597 11 Miami Jai -Alai '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. Miami Jai -Alai 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 to the business operations at the Property (those fees, collectively, the "License Fees"). a. Miami Jai -Alai shall be entitled to a credit against its obligation to pay Percentage Payments, in an amount equal to the Development Fees that Miami Jai -Alai pays to the City, subject to the terms and conditions of this Section 7 and subsection (b) below regarding the Property. After the payment of any Development Fees to the City, Miami Jai -Alai 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 S 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 $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"). Miami Jai -Alai shall also be similarly entitled to a monthly credit against Monthly Percentage Payments in the Fin 07-2597 12 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 Miami Jai -Alai is entitled are in excess of the Maximum Monthly Credit Amount for any particular month, Miami Jai -Alai shall be entitled to carry such credits over to any and all subsequent months during which the Monthly Credit Threshold Amount is exceeded. The total amount of Percentage Payment(s) due during any Miami Jai -Alai Fiscal Year shall be adjusted downward by the total amount of any credits for amounts paid to the City and allowed during that Miami Jai -Alai Fiscal Year pursuant to this Section 7. For example as to how the credits in the immediately -preceding subsection s.hal.l. operate, assume the amount of the Gross Slot Revenues at Miami Jai -Alai during the initial full month of slot machine operations was $11,250,000.00 and Miami Jai -Alai had paid development impact fees to the City in a total amount of $50,000.00 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 fullmonth of slot operations would be $168,750.00 (e.g., L5% of $11,250,000.00). .Miami Jai -Alai would, however, be entitled to offset the total amount of the development impact fees and application processing fees up to the amount of Miami Jai -Alai 's Monthly Maximum Credit Amount Final 07-2597 1.3 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 $140,000.00 until such time that such credits have been exhausted. and subject to any adjustment pursuant to subsection (b) below regarding the clubhouse building and the fronton. b. Miami Jai -Alai '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 fronton on the 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 building and fronton area shall be limited to improvements and structures not exceeding Ten Million Dollars (S10,000,000.00) in hard costs to construct. c. Miami Jai -Alai and the City acknowledge that Miami Jai -Alai 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 Miami Jai -Alai 's entire slot machine operations at the Property unless the City is otherwise required to charge more than one Final 07-2597 14 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. Miami Jai -Alai further acknowledges that it shall pay any occupational license fee related to slot machine operations to the City when due and payable. Miami Jai -Alai and the City acknowledge that after Miami Jai -Alai has paid a threshold amount totaling Twenty Thousand Dollars ($20,000.00) for its slot machine related occupational license at the Property, then Miami Jai -Alai 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 Miami Jai -Alai to the City in excess of such Twenty Thousand Dollars ($20,000.00). Miami Jai -Alai and the City acknowledge that Miami Jai -Alai will not receive a credit for any other type of occupational or other license fees paid or to be paid by Miami Jai -Alai to the City. Section 8. Peiniitted 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 confirms 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 Final 07-2597 15 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. Miami Jai -Alai 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. 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. Final 07-2j97 b) Downzoning. For the duration of this Agreement, the City shall not Downzone the Property or otherwise limit the ability of Miami Jai - Alai 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 16 Property, solely pursuant to the procedures of Section 163.3233{2), Florida Statutes. Section 1.0. 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 permits 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 Miami Jai -Alai develops the Property in compliance with the terms and conditions contained within the Existing Zoning and this Agreement. Notwithstanding the foregoing, Miami Jai -Alai 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 Miami Jai -Alai may have from time to time with a 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, Miami Jai -Alai 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 Miami Jai -Alai . The City may need to consider certain additional development permits in order for M:ianai Jai -Alai to Final 07-2597 17 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; (I) 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. 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 DevelopmentPermits. Miami Jai -Alai and the City agree that the failure of this F naI 07-2597 18 Agreement to address a particular permit, condition, fee, term, license, or restriction i.n effect on the Effective Date of this Agreement shall not relieve Miami Jai -Alai of the necessity of complying with the regulationgoverning said permitting requirements, conditions, fees, terms, licenses, or restrictions as long as compliance with said regulation and requirements do not require Miami Jai -Alai 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 permit 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 Development Regulations, or any change requested or initiated by Miami Jai -Alai 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 Miami J ai-Alai or its successors or assigns to continue development of the Property in conformity with the Development Approvals and all prior and subsequent development pet nits or Final 07-25 7 19 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: With a copy to: To Miami Jai -Alai : With copies to: Final 07-2.397 City Manager City of Miami 3500 Pan American Drive Miami, FL 33133 City Attorney Miami Riverside Center 444 S.W. 2n Ave., 10th Floor Miami, FL 33130 Florida Gaming Centers, Inc. A Fla. Corp., d/b/a Miami Jai -Alai Attn: Daniel J. Licciardi 3500 N.W. 37th Avenue Miami, FL 33142 Holland & Knight LLP Attn: Joe Dewey 701 Brickell Ave., Ste. 3000 Miami, FL 33131 20 Any Party to this Agreement may change its notification address(es) by providing 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 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, and Insurance a. hndemnification: Miami Jai -Alai 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 Miami Jai -Alai or its agents, employees, officers, or contractors, which arise from, grow out of, or are connected with 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 Miami Jai - Alai to comply materially with any of the requirements herein, or the failure of the Miami. Jai -Alai to conform to statutes, ordinances, or other regulations or requirements of any governmental authority, local, federal or state, in connection with the perfoi mmmance of this Agreement. This indemnity obligation shall apply regardless of 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 Fin' i 07-2597 21 become liable. Upon request of the City, Miami Jai -Alai 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 Miami Jai -Alai or its agents, employees, officers, or contractors.. Miami Jai -Alai 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 Miami Jai -Alai '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 Miami Jai -Alai releases and 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. Miami Jai -Alai fully understands that it shall be its responsibility to secure its own insurance coverage(s). Miami Jai -Alai shall, at all times during the term hereof, maintain such insurance coverage(s) as may be required by Miami Jai-A.lai for the Building, the Property, and the Project and all persons entering Final 07-2597 22 thereon, and all equipment and instruments stored thereon, including any of Miarni Jai - Alai 's equipment and instruments required for development of the Project and its ongoing operations. Miami Jai -Alai 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 Miami Jai -Alai of its liabilities and obligations under this Agreement. Section 19. Exclusive Venue, Choice of Law, Specific Perfoir.nance 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 Miami Jai -Alai 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 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 Miami Jai -Alai 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, Final 07-2597 23 Miami Jai -Alai and the City shall continue to honor the teinis 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 i.n 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 tei urinated orally. Section 22. Compliance with Applicable Laws Throughout the Term of this Agreement, Miami Jai -Alai shall comply with all Applicable Laws, subject to the terms 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 obligation of such party, enforceable in accordance with its tennis. The City Manager shall be the City's representative in connection with the execution of and terms and conditions of this Agreement. Daniel J. Licciardi shall be Miami. Jai -Alai 's representative inconnection with the execution of and the terms and conditions of this Agreement. The foregoing provisions are not intended to impose any personal liability on Final 07-2597 24 the City Manager or Daniel J. Licciardi for the City's or Miami Jai -Alai '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) Miami Jai -Alai shall be in default under this Agreement if any of the following events occur and continue beyond the applicable grace period: {i) Miami Jai -Alai fails to comply timely with any payment obligation which is not cured within fifteen (15) days from Miami Jai -Alai 's failure to meet such payment obligation. (ii) Miami Jai -Alai 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 Final 07-2597 25 nature of such breach; provided, however, that if such breach cannot reasonably be cured within thirty (30) days, then Miarni Jai - Alai 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 Miarni Jai -Alai shall be adjudicated bankrupt, or if Miami Jai - Alai shall make a general assignment for the benefit of creditors, or if in any proceeding based upon the insolvency of Miami Jai - Alai are commenced and not dismissed within sixty (60) days of filing or a receiver is appointed for all the property of Miami Jai - Alai 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 Miami Jai -Alai 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 completion. Section 27. Remedies Upon Default Upon the occurrence of a default by Miami Jai -Alai under this Agreement not cured within the applicable grace period, Miami Jai -Alai and the City agree that the City, Final 07-2597 26 in addition to any other rights provided by law, shallhave the right to impose a lien on the land on which the Property is located. Section 28. Severability If any term 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 Miami Jai -Alai and -its heirs, successors and assigns. Miami Jai -Alai shall not assign this Agreement without the prior written consent of the City which shall not be unreasonably withheld or denied, except that Miami Jai -Alai 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 Termination Hereof Notwithstanding and prevailing over any contrary teuua or provision contained herein, in the event any party hereto exercises any lawful termination rights herein, the .following 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 telunination or the expiration of the Tell n: (i) any and all outstanding payment obligations hereunder of any party hereto arising prior to teanzination; (ii) any and all indemnity obligations (including but not limited to obligations to defend, release, and hold haanaless) , risk of loss provisions, and insurance provisions hereunder of any party Final 07-2597 27 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 teim 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 tetinination hereof. Section 31. Lack of Agency Relationship Nothing contained herein shall be construed as establishing an agency relationship between the City and Miami Jai -Alai and neither Miami Jai -Alai 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 ofMia.i Jai -Alai or its subsidiaries, divisions or affiliates. Section 32. Non -Exclusivity Nothing in this Agreement is intended to create any exclusive rights in Miami Jai - Alai 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 slot 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 pe►snit, authorize and regulate such business and may enter into contracts to the same or similar effect as contemplated by this Agreement without incurring any liability, contractual or otherwise, to Miami Jai -Alai . 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 Final 07-2597 28 negatively impacting the generation or capacity of generation of Gross Slot Revenues at the Property, then the City and Miami Jai -Alai agree to negotiate in good faith to revise the terms 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 Miami Jai -Alai hereby covenants that 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 teiuns 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 Law, towards the goal of maximizing the Gross Slot Revenues generated at Miami Jai - Alai 's Property at the earliest possible time. The City shall use its best efforts to expedite to the extent reasonably practical the peiutitting and approval process, including but not limited to the processes for master use Final 07-2597 19 special permits, in an effort to assist the Miami Jai -Alai in achieving its demolition, development and construction milestones. The City will accommodate requests from Miami Jai -Alai 's general contractor and subcontractors for review of multiple permitting 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 Miami Jai -Alai in order to facilitate expediting the processing and issuance of all peinuit 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 Miami Jai -Alai 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 Miami Jai -Alai 's rights or privileges under Chapter 550, Florida Statutes, or (ii) permit 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 Miami Jai -Alai , 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. 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 Final 07-2597 30 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; Local and Minority Preference Commitment. Miami Jai -Alai :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 .Miami Jai -Alai. Section 39. Use ofNarne: Miami Jai -Alai understands and agrees that the City is not engaged in research for advertising, sales promotion, or other publicity purposes. Miami Jai -Alai 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 Miami Jai -Alai from (i) referring to the City of Miami as part of the address for the Property, or (ii) 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 Section 2- 611, as amended ("City Code"), regarding conflicts of interest, Miami Jai -Alai hereby Final 07-2597 31 certifies to City that none of the officers or owners of Miami Jai -Alai nor any immediate family member of any of the same is also a member of any board, commission, or agency of the City. Miami Jai -Alai shall use its reasonable efforts to inform the City throughout the term of this Agreement, if Miami Jai -Alai 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 Miami Jai -Alai 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 Miami Jai -Alai have caused this Agreement to be duly executed. CITY OF MIAMI, FLORIDA, a municipal corporation and political subdivision of the State of Florida ATTEST: Priscilla A. Thompson, City Clerk Approved as to Insurance Requirements Approved as to Fowl and Correctness: By Pedro G. Hernandez, City Manager By: By LeeAnn Brehm, Risk Management Jorge L. Fernandez, City Attorney Director Final 07-2597 32 Witnesses (if partnership): (Print Name) (Print .Name) ATTEST: Print Name of Secretary STATE OF FLORIDA COUNTY OF FLORIDA GAMING CENTERS, INC. A FLA. CORP., D/B/A MIAMI JAI -ALAI, a Florida corporation By: Name: Title: The foregoing instrument was acknowledged before me this day of 2008, by , as for FLORIDA GAMING CENTERS, INC. A FLA. CORP., D/B/A MIAMI JAI -ALAI 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 a 07-2597 33 Final 07-2597 34 Revised Draft of 01/02/08 DEVELOPMENT AGREEMENT BETWEEN CITY OF MIAMI, FLORIDA AND FLORIDA (AMINIG CENTERS, INC. A FLA. CORP., D[B/A MIAMI JAI -ALAI REGARDING SLOT MACHINES AT MIAMI JAI -ALAI PROPERTY THIS AGREEMENT %s entered this day of , 2008, by and between FLORIDA GAMINIG 4NTERS, INC. A FLA. CORP., D,BIA MIAMI JAI -ALAI, a Florida corporation (hereinafter referred to as "Miami Jai -Alai "), and the CITY OF MIAMI, FLORIDA, a muni ipal corporation and a political subdivision of the State of Florida (hereinafter referred to s the "City"). tWITNESSETH: WHEREAS, at the Nrvember 2, 2004 general election, the electors of the State of Florida voted to adopt an am ndment to the Florida Constitution authorizing the electors of Miami -Dade and Broward unties to hold county -wide elections on whether to authorize slot machines in existing, li nsed 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 Amendrt) nt ("Amendment 4"); WHEREAS, pursuant to a resoltion passed on July 11, 2007, the Miami - Dade Board of County Commissioners called a 6puntywide 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 Qounty (the "County") the question of whether to authorize slot machines in certain exist ng, licensed pari-mutuel facilities located within the County as provided in Article= X, Section 23 of the Florida Constitution; WHEREAS, the City and Miami Jai-A1al recognize that each entity impacts the health and general welfare of the residents of theity; WHEREAS, Miami Jai -Alai owns and operates 4iami Jai- and its related business operations of the clubhouse building, the fronton, ailed the related parking facilities and Miami Jai -Alai is the owner of those certain parcelof land on which the Miami Jai -Alai clubhouse building, the fronton, the parking and\its related business operations of the clubhouse building and the fronton are located withi' the boundaries of the City located at 3500 N.W. 37th Avenue, the legal descriptions of rich and property tax folio numbers for which are attached hereto as composite Exhibits "`A" (collectively, the "Property") and certain parking facilities owned and operated by h1iaitii Jai -Mai are Draft Revised Ol/02/08 1 located ;;within unincorporated Miami -Dade County and are not the subject of this Agreement; ',. WHEREAS, expansion of wagering capabilities to include slot machines in the business`--pperations at the Property will generate substantial additional revenues for the City; WHEREAS, the Property is currently zoned as C2 ("Liberal Commercial") in the City's Official„t Zoning Atlas and designated "General Commercial" in the City's Future Land Use Map= and Miami Jai -Alai nd the City mutually desire that the Property be developed as peraitted in the City's comprehensive plan and zoning code (the "Project"); and WHEREAS; the City and Miami Jai -Alai recognize that the residents of the City have ]egitimate corierns over increased development, and the possible impacts to the City in the nature of traftic, congestion, and the quality of life in the City; WHEREAS, MiaJsi Jai -Alai desires to assist the City in mitigating, minimizing, offsetting and defray ii g governmental impacts, including the costs of local and regional law enforcement, public safety, human services, mass transit operation, public improvements, and to mitigate`i<ost revenues such as sales tax surcharges that the City may incur as a result of Miami Jai`.�lai '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 Miami Jai -Alai pursuant to its Corporate Resolution adopted , 20Q,_ (a copy of which is attached hereto as Attachment 13) 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 expres\ly provided: a) A defined term has the meaning assigned to it; Oraf Revised 0J/02/08 b) Words in the singular include the plural, and words in plural include the singular; e) A pronoun in one gender includes and applies to other genders as well; and d) The terms_ "hereunder„ "herein", "hereof', "hereto" and such similar 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 Miami Jai -Alai 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: °`,A�greeinent" means this Agreement between the City and Miami Jai -Alai . "Annual Gross Slot Revenues" means the corbined total amount of Gross Slot Revenues realized in any Miami Jai -Alm Fiscal Year. "Applicable Laws" means those applicable federal, state or local laws, rules, regulations, codes, ordinances, resolutibps, administrative orders, schedules, permits, decrees, tariffs, policies a-,d procedures and orders which govern or relate to the respective 1'4rties' obligations and performance under this Agreement, all as they may lie amended from time } to time. Draft Revised©1102//08 3 its" 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" rneans the plan adopted by the City pursuant to Chapter 163, `Florida Statutes ("F.S,"), meeting the requirements of Section 163,31 7, 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 darrying 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 threer 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`pr (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 A royal" means the Existing Zoning. . "Dow lzone" shall refer to any change in regulations that\govern the use or development of land (including but not limited to c?mprehensive plans, land development regulations, subdivision regulations and any other such regulations), which change would have the effect of imcsing more Draft Revjsed 0 /02/08 4 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. "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. "Governing body" means the bd°rd 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;:iess all payouts to and credits redeemed by players al the Property. "Land" means the earth, water, and air, above, belo*, or on the surface and includes any improvements or structures custorarily 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 anypther Draft Revised 01102l08 5 regulations controlling the development of or construction upon land in effect as of the Effective Date. "Laws'nteans all ordinances, resolutions, regulations, comprehensive plans, land development regulations, and rules adopted by a local government affecting the development of land. !'Local 2overmnent" means any county or municipality or any special district or local goverririental entity established pursuant to law which exercises regulatory authority over, and grants development permits for, land development.. "Miami Jai -Alai " shall have'the meaning assigned in the recital clauses above. "Miami Jai -Alai Fiscal Year" means Miami Jai -Alai 's fiscal year, which begins on January, 1 and ends on December 31 of each calendar year. "Monthly Gross Slot Revenues" means all Gross Slot Revenues generated by Miami Jai -Alai during any particttlar calendar month. "Proect" tneans development permittedpursuant to the Existing Zoning. "Pro erty" shall have the meaning assigned in the recital clauses above. "Public facilities" means major capital improveme,ts, including, but not limited to, transportation, sanitary sewer, solid wastev;drainage, potable water, educational, parks and 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 Applica Ie Laws. Section 3. Intent. It is the intent of Miami Jai -Alai and the Gity that this Agreement should be construed and implemented so as to effectuate the pu`tposes and Draft Revised 01/U2/08 6 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 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 la.r,;d. The term of this Agreement may be extended, as well as any other change to this Agreement, including release or partial release, upon execution of a wrritten instrument by the City:,Manager and by Miami Jai -Alai (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'n advance by the City Commission after public hearing, pursuant to Sections 163.3225, and 163.3229, Horida 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 term except as expressly provided herein. Notwithstanding any other provision to the contrary, this Agreement sha11 terminate. immediately al the earliest of such time that (a) the voters do not approve by majority vote. the issue of whether to pen -nit slot machines during the Special Election or (b) any vote approving such issue is overturned or held invalid (following the expiration of ail appeals periods) ([a] and [b] shall each be referred to as an "Event of Early Termination"). Section 5. Compensation Draft Revised O1/02/08 7 Beginning on the date that any slot machines are authorized and operating at the Property, and continuing through the term of the Agreement, Miami Jai -Alai 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 Miami Jai -Alai 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 Miami Jai -Alai Fiscal Year that are in excess of S250,000,000 (the resulting amount, the "Percentage Payment"). For example, if Annual Gross Slot\Revenues were S280,000,000 during a Miami Jai -Alai Fiscal Year, the total amount of Percentage Payment due the City for that Miami Jai -Alai Fiscal Year would equal S4,500,000:v00. Miami Jai -Alai shall pay the Percentage Payment to the City in monthly installments (each such installment, a "Monthly Percentage Payment") based on the amount O\fMonthly Gross Slot Revenues generated 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, Any Monthly Percentage Payment not timely paid to the 'City by the fifteenth (15th) of each month shah accrue a late fee in an amount of one percent (1%) of the amount then clue 44 per month or portion thereof until the amount owed has been paid to the City and if such ]ate amount plus accrued late fee(s) have not been paid withn thirty (30) days of the original required payment date, then Miami Jai -Alai 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 o any Percentage Payment owed by Miami Jai -Alai to the City during any Miami Jai -Alai Fiscal Year. A subsequent change of the Miami Jai -Alai Fiscal Year shall not alter the annual basis Draft Revised G1102/58 unless aged to in writing by the parties as an amendment to this Agreement and any subsequent eh e of the Miami Jai -Alai Fiscal Year shall not decrease the amount of any type of payments to the City, b. Miami Jai -Alai shall submit payment of any fees required to be paid by the terms 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 C. Together with each Mo'rithly Percentage Payment due pursuant to the terms and conditions of this Agreement, Miami Jai -Alai shall submit to the City an accounting, of the operation of the slot machine's 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 Ri htsand Record Detention. The City shall have the rights to inspect and/or to cause to be inspected by any of its duly authorized representatives Miami Jai -Alai 's place of bdxiness at the Property and the Property and to audit and/or cause to be audited by any of its duly authorized representatives the books, records, documents, papers, and accounts of°Miami Jai -Alai , 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 reasonablcnanner, at a reasonably mutually -agreeable time and place within the City, in order to asceikain the correctness of the Gross Slot Revenues. theMonthly Percentage Payments, and any DF fi Revised 01/02/08 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,`.. Miami Jai -Alai 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 Miami Jai -Alai relating to Gross Slot Revenues shall be kept in written form, or in a form capable of conversion into written form within a reasonable time, and upon reasonable request to do so, Miami Jai -Alai shall make same available at no cost to the City in written form. Audited financial statements of Miami Jai" -Alai 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 protizided to the City within four (4) months of the close of each fiscal year of Miami Jai -Alai . Miami Jai -Alai agrees to provide access to the City, or to any of its duly authorized representatives, to any books, documents, papers, accounts, and records of Miami Jai -Alai that are directly pertinent to this Agreement, for the°,purpose of audit, inspection, examination, excerpts, and transcripts. Miami Jai -Alai shaf1,preserve and make available at a location within the City, al reasonable times followin.:,,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, Drat: Revised OOO2/08 10 account recol-ds, 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 peri©d 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, do4ments, papers and accounts shall be retained until resolution of the audit findings. if the Florida Public Records Act is determined to be applicable to Miami Jai-Alai's records relating to 'Gross Slot Revenues, Monthly Percentage Payments, and any other payments required to be made to the City, Miami Jai -Alai shall comply with all requirements thereof; however, no confidentiality or non- disclosure requirement of either federal or state law shall be v iolated by Miami Jai -Alai . Any incomplete or incorrect entry or entries in excess of Fwo Hundred Thousand and 00/100 Dollars ($200,000.00) 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 (1 0%) of any amount owed to the City plus interest in an amount of one percent (l %) per month or portion thereof until the amount owed ha \been paid. Any underpayment of any amount shall be paid by Miami Jai -Alai to the City Draft Revised OI/02;08 11 within le (TO) days of notice of the audit finding, including any underpayments accruing interest and the administrative fee if owed. Miami Jai -Alai 's failure to adhere to, or refusal to comply with, the provisions of this Section 6 shall. result in an vent .of Default under this Agreement, subject to applicable cure and/or grace period(s). Section 7. Development Fees and License Fees. Miami Jai Alai 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 to the business operations`` ,at the Property (those fees, collectively, the "License Fees"). a. Miami Jai -Alai shall be entitled to, a credit against its obligation to pay Percentage Payments, in an amount equal to the 'Development Fees that Miami Jai -Alai pays to the City, subject to the terms and conditions 6f this Section 7 and subsection (b) below regarding the Property. After the payment of an \Development Fees to the City, Miami Jai -Alai 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 S140,000,00 (that amount, the "Monthly Credit Threshold Amount''),, exce.pt 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 (the positive difference between the amount of a Monthly Percentage Payment and the Monthly Credit 07aft Revf5ed O3/02/08 12 Threshald Amount, the "Maximum Monthly Credit Amount"). Miami Jai -Alai shall also be simi]arJ >\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 Maxim urn 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 Miami Jai -Alai is entitled are in excess of the Maximum Ninthly Credit Amount for any particular month, Miami Jai -Alai shall be entitled to carry such credits over to any and all subsequent months during which the Monthly Credit Threshold Amount is exceeded. The total amount of Percentage Payment(s) due during anyMiami Jai -Alai Fiscal Year shall be adjusted downward by the total arnount of any credits°,for amounts paid to the City and allowed during that Miami Jai -Alai Fiscal Year pursuant fo this Section 7. For example as to how the credits in the immediately-Peceding subsection shall operate, assume the amount of the Gross Slot Revenues at Miami i Alai during the initial full month of slot machine operations was $11,250,000.00 and°'Miami Jai -Alai had paid development impact fees to the City in a total amount of $50,000.06n(1 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 $168,750.00 (e.g., 1.5% of$I 1,250,000.00). Miami Jai -Alai would, however, 'be Dra U, Revised O 1 /02)08 13 entitled to offset the total amount of the development impact fees and application processing fees up to the amount of Miami Jai -Alai 's Monthly Maximum Credit Amount of $28,750,09 (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 $140,000.00 until such time that such credits have been exhausted. and subject to any adjustment pursuant to subsection (b) below regarding the clubhouse building and the fronton. b. Miami Jai -Alai '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 fronton on the 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 building and fronton area shall be limited to improvements and structures not exceeding Ten Million Dollars ($10,000,O00.00) in hard costs to construct. c. Miami Jai -Alai and the City acknowledge that Miami Jai;Alai 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 Draft Revised 0I/02!D 14 shall Charge only one occupational license fee for Miami Jai -Alai 's entire slot machine operations at the Property unless the City is otherwise required to charge more than one occupational ligense fee pursuant to State statutes or County ordinances, and that any such occupational cease fee(s) imposed by ordinance of the City shall comport with State and County requirements in a non-discriminatory manner. Miami Jai -Alai further acknowledges that it shall pay any occupational license fee related to slot machine operations to the City when due and payable. Miami Jai -Alai and the City acknowledge that after°•Miami Jai -Alai has paid a threshold asrount totaling Twenty Thousand Dollars (520,000.O4:for its slot machine related occupational license at the Property, then Miami Jai -Alai sham 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 Miami Jai -Alai t& the City in excess of such Twenty Thousand Dollars (S20,000.00). Miami Jai -Alai and\\he City acknowledge that Miami Jai -Alai will not receive a credit for any other type of occupational or other license fees paid or to be paid by Miami Jai -Alai to the City. Section &. Permitted Development Uses and Buildingjntensities. (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 tothe City's Land Development Regulations ("Existing Zoning"). In granting the Exiing 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 o ._this Agreement and for the duration thereof, the City confirms and agrees that the Draft Revised 01/02;08 15 Properly may be developed and used for the purposes established in the City's Comprehensive Plan and Land Development Regulations in effect as of the Efctive 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 Miami Jai -Alai mutually consent and agree thatthe 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 herei°ia, the maximum height, setbacks and intensities for any development on the Propey 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 AEproval. a) Further Development Review',, The Existing Zoning, the Land Development Regulations, the 'Comprehensive Plan, and this 44 Agreement establish the criteria upon > ieh 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 Miami Jai - Alai 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, O,aft Revised 41/02f08 16 the City may apply subsequently adopted laws and policies to the Property, solely pursuant to the procedures of Section 163.3233(2), Florida Statutes. Se'i~tion 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 permits 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\lbe consistent with Land Development Regulations, so Tong as Miami Jai -Alai develops; the Property in compliance with the terms and conditions contained within the Existiii Zoning and this Agreement. Notwithstanding the foregoing, Miami Jai -Alai 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 e' ntract that Miami Jai -Alai may have from tirne to time with a private hauler (collectively, -he "Non -City Services"), and as such, the City can not guarantee adequate capacity with respect to Non -City Services. Section] l . Reservation or Dedication of Land. ExceM as otherwise provided below and pursuant to applicable subdivision regulations, Miami 3`i;-Alai shall not be required to dedicate or reserve any land within the Property for municipal urposes. Section 12. Local Development Permits. The development of the'Property'in accordance with the Existing Zoning is contemplated by Miami Jai -Alai . The City may [) afi Revised 01/02/08 i7 need to consider certain additional development permits in order for Miami Jai -Alai 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; Building permits; Certificates of use and/or occupancy; and Any other official action of the City having the effect of permitting the development of land. 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 tl e 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 1633233(2), Florida Statutes., Draft Revised O1102/Q8 18 S'ction I4. Necessity of Complying with Local Regulations Relative to Development Permits. Miami Jai -Alai 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 Miami Jai -Alai 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 Miami Jai -Alai 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 permit 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 Development Regulations, or any change requested o3rvinitiated by Miami Jai -Alai in accordance with applicable provisions of ` law. More€rver, 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 Miami Jai-Alaai or its Drat Revised O1i02IO8 19 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. ection 16. Notices All n6tices, 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 purr`suant 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: With a copy to: To Miami Jai -Alai With copies to: Daft Revised 01/02/08 City Manager City of Miami 350 Pan American Drive Miani7,, FL 33133 City Attorney Miami Riverside Center 444 S.W. 2" Ave., 10th Floor Miami, FL 331°30 Florida Gaminig Cetaters, Inc. A Fla. Corp_, d/b/a Miami Jai\Alai Attn: 3500 N.W. 37`h Avenue Miami, FL 33142 Holland & Knight LLP 20 Attn: Joe Dewey 701 Brickell Ave,, Ste. 3000 Miami, FL 33131 Any Party to athis Agreement may change its notification address(es) by providing 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 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, and Insurance a, Indemnification: 'Miami Jai -Alai 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 sctits, 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, a‘gents, employees, or contractors may be subjected which are caused by or arise out of, id,whole or in part, (i) the negligent acts (whether active or passive or in strict liability), iritentional misconduct, omissions, or defaults of Miami Jai -Alai or its agents, employees, officers, or contractors, which arise from, grow out of, or are connected with 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 Miami Jai - Alai to comply materially with any of therequirements herein, or,the failure of the Miami Jai -Alai 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 of whetber such raft Revised 01 /021J8 21 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, Miami Jai -Alai 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 lyliami Jai -Alai or its agents, employees, officers, or contractors.. Miami Jai -Alai 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 Miami Jai -Alai 's Property for the Project as a result of;'-pr in connection with, this Agreement. In consideration of the execution of this Agrement by the City, the Miami Jai -Alai releases and waives all claims against the City, its o `fcials, 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. Miami Jai -Alai fully understands that it shall be its responsibility to secure its own insurance coverage(s). Miami Jai -Alai shall :yat all times Draft Revised 01l02/08 22 during the term hereof, maintain such insurance coverage(s) as may be required by Miami Jai, Alai for the Building, the Property, and the Project and all persons entering thereon, and`a11 equipment and instruments stored thereon, including any of Miami Jai - Alai 's equipment and instruments required for development of the Project and its ongoing operations.`.; ,Miami Jai -Alai shall be responsible for assuring that the insurance coverages remain in fullforce and effect for the duration of this Agreement, including any extensions hereof. Compliance with the foregoing insurance requirements shall not relieve Miami Jai -Alai 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 Miami Jai -Alai 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 rnotion or pleading, that the aforementioned courts are an improper or inconvenient venue.. Moreover, the parties consent to the personal jurisdiction of the aforementioned courts axed irrevocably waive any objections to said jurisdiction. The parties irrevocably waive any ri`hts to a jury trial. Section 20, Drafl Revised 03/02/08 Voluntary Payment and Voluntary Compliance 23 Miami Jai -Alai 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, Miami Jai -Alai °.and the City shall continue to honor the terms and conditions of this Agreement to the extent allowed by law. Section 21. N`o 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•:rnatter 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 taws Throughout the Term of this Agreement, Miarni Jai -Alai shall comply with all Applicable Laws, subject to the terms and conditions of this•Agreement. Section 23. Representations; Representatives Each party represents to the other that this Agreement had been duly authorized, delivered and executed by such party and constitutes the legalvvalid and binding obligation of such party, enforceable in accordance with its teems. The City Manager shall be the City's representative in connection with the execution of afad teiws and conditions of this Agreement. Barbara Havenick shall be Miami Jai -Alai 's representative in connection with the execution of and the terms and conditions of this Agreem ot. The Draft Rev€sed 01/02/08 24 foregoing; provisions are not intended to impose any personal liability on the City Manager or Barbara I-Iavenick for the City's or Miami Jai -Alai '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\A.greement shall constitute a waiver of any subsequent breach of the same or any other `provision hereof, and no wairrer shall be effective unless made in writing. Section 26. Events of Default (a) Miami Jai -Alai shall be in default under this Agreement if any of the following events occur and continue beyond',4he applicable grace period: (i) Miami Jai -Alai fails to comply timely with any payment obligation which is not cured within fifteen, (15) days from Miami Jai -Alai 's failure to meet such payment obligation. (ii) Miami Jai -Alai fails to perform or breaches any term, covenant, or condition of this Agreement which is not cured within thirty (30) Draft Revised 01/02/08 25 (b) (i 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 Miami Jai - Alai 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. i) If Miami Jai -Alai shall be adjudicated bankrupt, or if Miami Jai - Alai shall make a general assignment for the benefit of creditors, or if in any proceeding based upon the insolvency of Miami Jai - Alai are commenced and not dismissed within sixty (60) days of filing or a receiver is appointed for all the property of Miami Jai - Alai which is not dismissed within sixty (60) days of such appointment. The City shall be in default under this Agreement if the City fails to perform or breaches any term, coveant, or condition of this Agreement and such failure is not cured within thir6\a(30) days after receipt of written e5 notice from Miami Jai -Alai 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 completion. Section 27. Remedies Upon Default Upon the occurrence of a default by Miami Jai -Alai under this Agreemeri not a-0 Revised QIiO2/O 26 cured within the applicable grace period, Miami Jai -Alai 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. Sect ion.,28. Severability If any term 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 remar}der of this Agreement or the application of such terra 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 Miami Jai -Alai and -its heirs, successors and assigns. Miami Jai -Alai shall not assign this Agreement without the prior written consent of the City which shall not be unreascrrably withheld or denied, except that Miami Jai -Alai 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 Terminati©n Hereof Notwithstanding and prevailing over any contrary term orprovisioncontained herein, in the event any party hereto exercises any lawful termination rights herein, the following obligations shall survive such termination and continue in force and effect until the expiration of a one year term following the earlier of the effective date of such 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 al\indemnity obligations (including but not limited to obligations to defend, release, and hold Drab Revised O 02/08 27 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 rnay be applicable or effective beyond the expiration or permitted early termination hereof. Section 31. Lackof Agency Relationship Nothing contained herein shall be construed as establishing an agency relationship between the City and Miami Jai -Alai and neither Miami Jai -Alai 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 employs shall not be deemed contractors, agents, or employees of Miami Jai -Alai or its subsidiaries, divisions or affiliates. Section 32. Non -Exclusivity 04 Nothing in this Agreement is intended to create `any exclusive rights in Miami Jai- __ Alai to conduct slot machine operations within the County or the City. In the event that by operation of law other persons are authorized to coraduc \slot 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 without incurring any liability, contractual or otherwise, to Miami Jai -Alai .° Section 33. t>rafi Revised 01/02/08 28 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 Miami Jai -Alai agree to negotiate in good faith to revise the terms 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 Miami Jai -Alai hereby covenants that 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, heir successors, assigns, heirs, legal representatives, and personal representatives. Section 35. Cooperation, Expedited Permitting an&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 Law, towards the goal of maximizing the Gross Slot Revenues generated at Miami Jai - Alai 's Property at the earliest possible time. Draft Revisd 01102/06 29 The City shall use its best efforts to expedite to the extent reasonably practical the permitting and approval process, including but not limited to the processes for master use special permits, in an effort to assist the Miami Jai -Alai in achieving its demolition, development and construction milestones. The City will accommodate requests from Miami Jai -Alai 's general contractor and subcontractors for review of multiple permitting 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 pant of contact and liaison with Miami Jai -Alai 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 Miami Jai Alai does not comply with the;applicable requirements of the City's land development code and applicable building codes. Section 36. Acknowledgement of Applicati ,n With Chapter 550, Florida e(q Statutes. Nothing contained in this Agreement is intended to (i) limit or abridge any of Miami Jai -Alai 's rights or privileges under Chapter 550, Florida Statutes, or (ii) permit 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 Miai4ai Jai -Alai , its successors and/or assigns fails to act in accordance with the tesnis of the'Txisting Zoning, the City shall seek enforcement of said violation upon the Property. Draft Revised 0 i /O2/08 30 ,1nforcement of this Agreement shall be by action against any parties or person violating, o?'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 jo 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 Preference Commitment. Miami Jai -Alai hereby acknowledges and agrees that it will adopt and implement an employment policy pursuant to whici it will 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 al Miami Jai -Alai . Section 39. Use of Dame: Miami Jai -Alai understands and agrees that the City is not engaged in research for advertising, sates promotion, or other publicity purposes. Miami Jai -Alai agrees not to use the name sf 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 'Miami Jai -Alai from (i) referring to the City of Miami as part of the address for the Pr€ perty, or (ii) using the name "City of Miami" in any other way or context which is ctherwi5 , not prohibited by applicable law. Drab Revised 01/02/08 31 40. No Conflict of Interest: Pursuant to City of Miami Code Section 2- 611, as amended ("City Code"), regarding conflicts of interest, Miami Jai -Alai hereby certifies too City that none of the officers or owners of Miami Jai -Alai nor any immediate family member of any dale same is also a member of any board, commission, or agency of the City. Miarrli Jai -Alai shall use its reasonable efforts to inform the City throughout the terrn of this Agreement, if Miami Jai -Alai 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 Miami Jai -Alai 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 Miami Jai -/Jai have caused this Agreement to be duly executed. ATTEST: Priscilla A. Thompson, City Clerk CITY OF MIAMI, FLO*IDA, a municipal corporation and political subdivision the State of Florida By Pedro G. Hernandez, City Manager Approved as to Insurance Requirements Approved as to Form and Correctness: By: By Draft RevisedOtJO2/08 32 LeeAnn Brehm, Risk Management Jorge L. Fernandez, City Attorney Director Witnesses (if partnership): (Print Name) (Print Name) ATTEST: Print Name of Secretary STATE OF FLORIDA COUNTY OF FLORIDA GAMINIG CENTERS, INC. A FLA. CORP., DB/A MIAMI JAI -ALAI, a Florida corporation By: Name: Title: The foregoing instrument was acknowledged before me thday of 2008, by , as for FORIDA GAMINIG CENTERS, INC. A FLA. CORP., D/B/A MIAMI JAI -ALAI Signature of Notary Public Print, Type or Stamp Commissicied Name of Notary Public Personally Known OR Produced Identification Type of Identification Produced Draft Revised 01/02/0$ 33 Attachments and Exhihits to be attached upon document execution Draft Revised O1/D2108 34