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HomeMy WebLinkAboutExhibit 2DEVELOPMENT AGREEMENT BETWEEN CITY OF MIAMI, FLORIDA AND WEST FLAGLER ASSOCIATES, LTD. REGARDING SLOT MACHINES AT FLAGLER DOG TRACK THIS AGREEMENT is entered this day of , 2008, by and between WEST FLAGLER ASSOCIATES, LTD., a Florida limited partnership (hereinafter referred to as "Flagler"), and the CITY OF MIAMI, FLORIDA, a political subdivision of the State of Florida (hereinafter referred to as the "City"). WITNESSETH: WHEREAS, at the November 2, 2004 general election, the electors of the State of Florida voted to adopt an amendment to the Florida Constitution authorizing the electors of Miami -Dade and Broward Counties to hold county -wide elections on whether to authorize slot machines in existing, licensed pari-mutuel facilities that have conducted live racing or games in that county during each of the last two calendar years before the effective date of the Constitutional Amendment ("Amendment 4"); WHEREAS, pursuant to a resolution passed on July 11, 2007, the Miami - Dade Board of County Commissioners called a countywide special election to be held by the County on Tuesday, January 29, 2008 (the "Special Election") for the purpose of submitting to the qualified electors of Miami -Dade County (the "County") the question of whether to authorize slot machines in certain existing, licensed pari-mutuel facilities located within the County as provided in Article X, Section 23 of the Florida Constitution; WHEREAS, the City and Flagler recognize that each entity impacts the health and general welfare of the residents of the City; WHEREAS, Flagler owns and operates Flagler Dog Track (the "Track") which is located in the City at 401 Northwest 38` Court; WHEREAS, expansion of wagering capabilities to include slot machines at Flagler will generate substantial additional revenues for the City; WHEREAS, Flagler is the Owner of those certain parcels of land located within the boundaries of the City, the legal descriptions of which are attached hereto and made a part hereof as Exhibit "A" ( the "Property"); and WHEREAS, the Property is currently zoned as C2 ("Liberal Commercial") in the City's Official Zoning Atlas and designated "General Commercial" in the City's Future Land Use Map, and Flagler and the City mutually desire that the Property be developed as permitted in the City's comprehensive plan and zoning code (the "Project"); and WHEREAS, the City and Flagler recognize that the residents of the City have legitimate concerns over increased development, and the possible impacts to the City in the nature of traffic, congestion, and the quality of life in the City; WHEREAS, Flagler desires to assist the City in mitigating, minimizing, offsetting and defraying governmental impacts, including the costs of regional law enforcement, human services, mass transit operation, and to mitigate lost revenues such as sales tax surcharges that the City may incur as a result of Flagler's slot machine operations in the City; 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; c) 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 Flagler. f) All exhibits and appendices attached hereto shall be deemed hereby adopted and incorporated herein. Section 2. Definitions As used herein: "Agreement" means this Agreement between the City and Flagler. "Annual Gross Slot Revenues" means the combined total amount of Gross Slot Revenues realized in any Flagler Fiscal Year. "Applicable Laws" means those applicable federal, state or local laws, rules, regulations, codes, ordinances, resolutions, administrative orders, schedules, permits, decrees, tariffs, policies and procedures and orders which govern or relate to the respective Parties' obligations and performance under this Agreement, all as they may be amended from time to time. "City" means the City of Miami, a 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 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. "Flagler" shall have the meaning assigned in the recital clauses above. "Flagler Fiscal Year" means Flagler's fiscal year, which begins on January 1 and ends on December 31 of each calendar year. "Governing body" means the board of county commissioners of a county, the commission or council of an incorporated municipality, or any other chief governing body of a unit of local government. "Gross Slot Revenues" shall mean all currency and other consideration placed into any slot machine at the Property, Less all payouts to and credits redeemed by players at the Property. "Land" means the earth, water, and air, above, below, or on the surface and includes any improvements or structures customarily regarded as land. "Land Development Regulations" means ordinances, rules and policies enacted or customarily implemented by the City for the regulation of any aspect of development and includes any local government zoning, rezoning, subdivision, building construction, or sign regulation or any other regulations controlling the development of or construction upon land in effect as of the Effective Date. "Laws" means all ordinances, resolutions, regulations, comprehensive plans, land development regulations, and rules adopted by a local government affecting the development of land. "Local government" means any county or municipality or any special district or local governmental entity established pursuant to law which exercises regulatory authority over, and grants development permits for, land development. "Project" means development permitted pursuant to the Existing Zoning. "Monthly Gross Slot Revenues" means all Gross Slot Revenues generated by Flagler during any particular calendar month. "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 Flagler and the City that this Agreement should be construed and implemented so as to effectuate the purposes and intent of the parties and the purpose and intent of the Florida Local Government Development Agreement Act, Section 163.3220, F.S., et. al. Section 4. Term and Effective Date This Agreement shall become effective on the Effective Date. The Agreement shall be recorded in the public records of Miami -Dade County and shall have a term of twenty (20) years from the Effective Date. 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 an instrument by Flagler (or its assigns, which may include, but not be limited to a Community Development District and/or a master property owners' association with appropriate authority over the Property) and with the consent of the, then, owner(s) of a majority of the Property, provided that such change has been approved by the City 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 teiniinated during its term except as expressly provided herein. Notwithstanding any other provision to the contrary, this Agreement shall terminate immediately at the earliest of such time that (a) the voters do not approve by majority vote the issue of whether to permit slot machines during the Special Election or (b) any vote approving such issue is overturned or held invalid (following the expiration of all appeals periods) ([a] and [b] shall each be referred to as an "Event of Early Termination"). Section 5. Compensation a. Beginning on the date that any slot machines are authorized and operating at Flagler, and continuing through the term of the Agreement, Flagler agrees to pay the City an amount equal to the sum of (x) one and one-half percent (1.5%) of the amount of Annual Gross Slot Revenues for the applicable Flagler Fiscal Year that are not in excess of $250,000,000 plus (y) two percent (2%) of the amount of Annual Gross Slot Revenues for the applicable Flagler Fiscal Year that are in excess of $250,000,000 (the resulting amount, the "Percentage Payment"). For example, if Annual Gross Slot Revenues were $280,000,000 during a Flagler Fiscal Year, the total amount of Percentage Payment due the City for that Flagler Fiscal Year would equal $4,290,000.00. Flagler shall pay the Percentage Payment to the City in monthly installments (each such installment, a "Monthly Percentage Payment") based on the amount of Monthly Gross Slot Revenues generated in the prior month and such Monthly Percentage Payment shall become due and payable in arrears on the 15th day of the calendar month following its accrual. The foregoing Monthly Percentage Payments shall be made as an advance on the total amount of any Percentage Payment owed by Flagler to the City during any Flagler Fiscal Year. A subsequent change of the Flagler Fiscal Year shall not alter the annual basis unless agreed to by the parties. b. Flagler 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, Flagler shall submit to the City an accounting of the operation of the slot machines and the computation of any fees imposed pursuant to this Agreement for the relevant period of time during which any such fees accrued. Section 6. Auditing. The City shall have the right to audit the books, records, and accounts of Flagler directly relating to the calculation of Gross Slot Revenues, 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 payments required to be made to the City pursuant to this Agreement, including the accurate reporting of Gross Slot Revenues and the determination of Percentage Payments under this Agreement. Flagler shall keep such books, records, and accounts as may be necessary in order to record complete and correct entries related to the calculation of Gross Slot Revenues. All books, records, and accounts of Flagler 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, Flagler shall make same available at no cost to the City in written form. Audited financial statements of Flagler which in addition details the amount of Annual Gross Slot Revenues shall be provided to the City within four (4) months of the close of each fiscal year of Flagler. Flagler shall preserve and make available at a location within the City, at reasonable times following receipt of written notice, for examination and audit by the City, all financial records, supporting documents, statistical records, and any other documents pertinent to the calculation of Gross Slot Revenues and the Gross Slot Revenues payments 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. 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, and accounts shall be retained until resolution of the audit findings. If the Florida Public Records Act is determined to be applicable to Flagler's records relating to Gross Slot Revenues, Flagler shall comply with all requirements thereof; however, no confidentiality or non -disclosure requirement of either federal or state law shall be violated by Flagler. Any incomplete or incorrect entry or entries in excess of Two Hundred Thousand and 00/100 Dollars ($200,000.00) of cumulative, annual funds that should have been paid to the City as a Gross Slot Revenues payment in a particular fiscal year in such books, records, and accounts shall be a basis for the City's applying an administrative fee of ten percent (10%) of any amount owed to the City plus interest in an amount of one percent (1%) per month or portion thereof until the amount owed has been paid. Any underpayment shall be paid by Flagler to the City within ten (10) days of notice of the audit finding, including interest and the administrative fee if owed. Section 7. Development Fees. Flagler shall pay 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"). a. Flagler shall be entitled to a credit against its obligation to pay Percentage Payments, in an amount equal to the Development Fees that Flagler pays to the City, subject to the terms and conditions of this Section 7. After the payment of any Development Fees, Flagler shall be entitled to deduct the amount of Development Fees paid from the amount of any subsequent Monthly Percentage Payment that exceeds $120,000.00 (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 $120,000.00 (the positive difference between the amount of a Monthly Percentage Payment and the Monthly Credit Threshold Amount, the "Maximum Monthly Credit Amount"). Flagler shall also be similarly entitled to a monthly credit against Monthly Percentage Payments in the amount of the fees assessed by the City as set forth in the Codes of the City for the administrative processing and review of applications for development permits for square footage used for slot machines, the amphitheater and a food court, together with all ancillary uses, submitted to the City for review and approval provided that such monthly credits, together with any credits taken with respect to Development Fees, do not exceed the Maximum Monthly Credit Amount in any given month. To the extent that the cumulative amount of credits for Development Fees and permit processing and application fees to which Flagler is entitled are in excess of the Maximum Monthly Credit Amount for any particular month, Flagler shall be entitled to carry such credits over to any and all subsequent months during which the Monthly Credit Threshold Amount is exceeded. The total amount of Percentage Payment due during any Flagler Fiscal Year shall be adjusted downward by the total amount of any credits allowed during that Flagler Fiscal Year pursuant to this Section 7. For example as to how the credits in the immediately -preceding subsection shall operate, assume the amount of the Gross Slot Revenues at Flagler during the initial full month of slot machine operations was $11,250,000.00 and Flagler had paid development impact fees to the City in a total amount of $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 full month of slot operations would be $168,750.00 (e.g., 1.5% of $11,250,000.00). Flagler would, however, be entitled to offset the total amount of the development impact fees and application processing fees up to the amount of Flagler's Monthly Maximum Credit Amount of $48,750.00 (e.g., $168,750.00less $120,000.00). The remaining $31,250.00 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 $120,000.00 until such time that such credits have been exhausted. b. Flagler acknowledges that it is required to obtain the City occupational licenses related to slot machine operations pursuant to the Codes of the City and the County during the term of this Agreement, but pursuant to this section, is deemed to have prepaid any fees for such licenses. Section 8. Permitted Development Uses and Building Intensities. (a) Permitted Development Uses. Prior to the adoption and acceptance of this Agreement, the City has designated the Property as C-2 ("Liberal Commercial") on the official zoning Atlas of the City, pursuant to the City's Land Development Regulations ("Existing Zoning"). In granting the Existing Zoning, the City has determined that development and uses thereunder are consistent with the City's Comprehensive Plan and that it is in accordance with the City's land development regulations in effect as of the Effective Date. Upon execution of this Agreement and for the duration thereof, the City 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 Effective Date of this Agreement, or such laws and policies subsequently adopted and applied to the Property solely pursuant to the procedures of Section 163.3233(2), Florida Statutes. The City and Flagler mutually consent and agree that the additional limitations and conditions set forth in this Agreement serve as the sole basis upon which the parties enter into this Agreement. (b) Density, Building Heights, Setbacks and Intensities. Except as otherwise provided herein, the maximum height, setbacks and intensities for any development on the Property shall be regulated by the Land Development Regulations in effect as of the Effective Date and the applicable designations in the City's Comprehensive Plan. Section 9. Project Approval. a) Further Development Review. The Existing Zoning, the Land Development Regulations, the Comprehensive Plan, and this Agreement establish the criteria upon which the Property shall be developed during the term of this Agreement. b) Downzoning. For the duration of this Agreement, the City shall not Downzone or otherwise limit the ability of Flagler to develop the Property in accordance with the Development Approvals and nothing shall prohibit the issuance of further development orders and approvals in conformity with same. However, the City may apply subsequently adopted laws and policies to the Property, solely pursuant to the procedures of Section 163.3233(2), Florida Statutes. Section 10. Public Services and Facilities; Concurrency. For the purposes of concurrency review, it is hereby found that, throughout the duration of this Agreement, sufficient infrastructure capacities will be reserved and remain available to serve this Project. All subsequent development orders or 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 Flagler develops the Property in compliance with the terms and conditions contained within the Existing Zoning and this Agreement. Notwithstanding the foregoing, Flagler acknowledges that the City is not responsible for water and sewer service and those other services provided by the County (collectively, the "Non -City Services"), and as such, the City can not guarantee adequate capacity with respect to Non -City Services. Section 11. Reservation or Dedication of Land. Except as otherwise provided below and pursuant to applicable subdivision regulations, Flagler shall not be required to dedicate or reserve any land within the Property for municipal purposes. Section 12. Local Development Permits. The development of the Property in accordance with the Existing Zoning is contemplated by Flagler. The City may need to consider certain additional development permits in order for Flagler to complete the Project in a manner consistent with the Development Approvals and the Land Development Regulations in effect as of the Effective Date and Comprehensive Plan designations affecting the Property, such as: (a) Site Plan approvals; (b) Land Improvement Permits (c) Subdivision plat and or waiver of plat approvals; (d) special permits; (e) Covenant or Unity of Title acceptance or the release of existing unities or covenants; (f) Building permits; (g) Certificates of use and/or occupancy; and (h) Any other official action of the City having the effect of permitting the development of land. Section 13. Consistency with Comprehensive Plan. The City hereby finds that the development of the Property in conformity with the Existing Zoning is consistent with the City's Land Development Regulations and Comprehensive Plan designation as of the Effective Date and shall not be subject to any future changes to the City's Land Development Regulations and Comprehensive Plan designation after the Effective Date; provided, however, the City may apply subsequently adopted laws and policies to the Property solely pursuant to the procedures of Section 163.3233(2), Florida Statutes., Section 14. Necessity of Complying with Local Regulations Relative to Development Permits. Flagler and the City agree that the failure of this Agreement to address a particular permit, condition, fee, term or restriction in effect on the Effective Date of this Agreement shall not relieve Flagler of the necessity of complying with the regulation governing said permitting requirements, conditions, fees, terms or restrictions as long as compliance with said regulation and requirements do not require Flagler to develop the Property in a manner that is inconsistent with the Development Approvals. Section 15. Reservation of Development Rights. For the term of this Agreement, the City hereby agrees that it shall permit the development of the Project 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 Flagler in accordance with applicable provisions of law. Moreover, the City may apply subsequently adopted laws and policies to the Property solely pursuant to the procedures of Section 163.3233(2), Florida Statutes. The expiration or termination of this Agreement, for whatever reason, shall not be considered a waiver of, or limitation upon, the rights, including, but not limited to, any claims of vested rights or equitable estoppel, obtained or held by Flagler or its successors or assigns to continue development of the Project in conformity with the Development Approvals and all prior and subsequent development permits or development orders granted by the City, including, but not limited to, those rights granted under the City's Comprehensive Plan and land development regulations. Section 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 Flagler: With copies to: City Manager City of Miami 3500 Pan American Drive Miami, FL 33133 City Attorney Miami Riverfront Center 444 S.W. 2"d Ave. Miami, FL 33130 West Flagler Associates, Ltd. Attn: Lori Weems, General Counsel 401 N.W. 38th Ct. Miami, FL 33126 Holland & Knight LLP Attn: Joe Dewey 701 Brickell Ave., Ste. 3000 Miami, FL 33131 Any Party to this Agreement may change its notification address(es) by providing written notification to the remaining parties pursuant to the 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 Flagler agrees to indemnify, protect and hold harmless the City, its agents and employees, from and against all suits, actions, claims, demands, damages, losses, penalties or fines, expenses, attorneys' fees, and costs of every kind or description to which the City, its agents or employees may be subjected which are caused by or arise out of, in whole or in part, the negligent acts or intentional misconduct of Flagler 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 employees, agents or contractors. 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 agents or employees may become liable. Upon request of the City, Flagler shall undertake to defend, at its sole cost and expense, any and all suits brought against the City in connection with the matters specified in this Section, in the event such suit is solely caused by the negligence by Flagler or its agents, employees, officers or contractors. Flagler shall have the right to cooperate in the defense, including the selection of private counsel, if any, at its sole cost and expense, against any suit, action, claim, demand, damage, loss, penalty or fine made by any party to this Agreement or any third party that could reasonably and forseeably result in a material adverse impact on the amount of Gross Slot Revenues generated or capable of being generated at Flagler, provided however that nothing contained herein shall limit the City's right to direct the defense. Section 19. Exclusive Venue, Choice of Law, Specific Performance It is mutually understood and agreed by the parties hereto, that this Agreement shall be governed by the laws of the State of Florida, and any applicable federal law, both as to interpretation and performance, and that any action at law, suit in equity or judicial proceedings for the enforcement of this Agreement or any provision hereof shall be instituted only in the courts of the State of Florida or federal courts and venue for any such actions shall lie exclusively in a court of competent jurisdiction in the County. In addition to any other legal rights, the City and Flagler shall each have the right to specific performance of this Agreement in court. Section 20. Voluntary payment. Flagler and the City each agree that in the event all or any part of this Agreement is struck down by judicial proceeding or preempted by legislative action, Flagler and the City shall continue to honor the terms and conditions of this Agreement to the extent allowed by law. Section 21. No Oral Change or Termination This Agreement and the exhibits and appendices appended hereto and incorporated herein by reference, if any, constitute the entire Agreement between the parties with respect to the subject matter hereof This Agreement supersedes any prior agreements or understandings between the parties with respect to the subject matter hereof, and no change, modification or discharge hereof in whole or in part shall be effective unless such change, modification or discharge is in writing and signed by the party against whom enforcement of the change, modification or discharge is sought. This Agreement cannot be changed or terminated orally. Section 22. Compliance with Applicable Laws Throughout the Term of this Agreement, Flagler shall comply with all Applicable Laws, subject to the terms and conditions of this Agreement. Section 23. Representations 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 terms. 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 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. Section 26. Events of Default (a) Flagler shall be in default under this Agreement if any of the following events occur and continue beyond the applicable grace period: (i) Flagler fails to comply timely with any payment obligation which is not cured within fifteen (15) days from Flagler's failure to meet such payment obligation. (ii) Flagler fails to perform or breaches any term, covenant, or condition of this Agreement which is not cured within thirty (30) days after receipt of written notice from the City specifying the nature of such breach; provided, however, that if such breach cannot reasonably be cured within thirty (30) days, then Flagler shall not be in default if it commences to cure such breach within said thirty (30) day period and diligently prosecutes such cure to completion. (iii) If Flagler shall be adjudicated bankrupt, or if Flagler shall make a general assignment for the benefit of creditors, or if in any proceeding based upon the insolvency of Flagler are commenced and not dismissed within 60 days of filing or a receiver is appointed for all the property of Flagler which is not dismissed within 60 days of such appointment. (b) The City shall be in default under this Agreement if the City fails to perform or breaches any term, covenant, or condition of this Agreement and such failure is not cured within thirty (30) days after receipt of written notice from Flagler specifying the nature of such breach; provided, however, that if such breach cannot reasonably be cured within thirty (30) days, the City shall not be in default if it commences to cure such breach within said thirty (30) day period and diligently prosecutes- such cure to completion. Section 27. Remedies Upon Default Upon the occurrence of a default by Flagler under this Agreement not cured within the applicable grace period, Flagler and the City agree that the City, in addition to any other rights provided by law, shall have the right to impose a lien on the land on which Flagler 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 deteiinined to be invalid or unenforceable, the remainder of this Agreement or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby and shall continue in full force and effect. Section 29. Assignment and Transfer This Agreement shall be binding on Flagler and their heirs, successors and assigns. Flagler shall not assign this Agreement without the prior written consent of the City, which shall not be unreasonably withheld or denied, except that Flagler may assign this Agreement, without the consent of the City, to a purchaser of all or a portion of the Property. Section 30. Obligations Surviving Termination Hereof Notwithstanding and prevailing over any contrary term 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 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 all indemnity obligations hereunder of any party hereto; (iii) the exclusive venue and choice of law provisions contained herein, and (iv) any other term or provision herein which expressly indicates either that it survives the termination or expiration hereof or is or may be applicable or effective beyond the expiration or permitted early termination hereof. Section 31. Lack of Agency Relationship Nothing contained herein shall be construed as establishing an agency relationship between the City and Flagler and neither Flagler nor its employees, agents, contractors, subsidiaries, divisions, affiliates or guests shall be deemed agents, instrumentalities, employees, or contractors of the City for any purpose hereunder, and the City, its contractors, agents, and employees shall not be deemed contractors, agents, or employees of Flagler or its subsidiaries, divisions or affiliates. Section 32. Non -Exclusivity Nothing in this Agreement is intended to create any exclusive rights in Flagler to conduct slot machine operations within the County. 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 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 Flagler. Section 33. If the City takes affirmative action by way of ordinance, resolution or otherwise that would have the reasonable or foreseeable result of negatively impacting the generation or capacity of generation of Gross Slot Revenues at Flagler, then the City and Flagler agree to negotiate in good faith to revise the terms and conditions of this Agreement. By exception, the County shall have no good faith obligation in the event the County's affirmative action is mandated by State law. If and until such time as an amendment or revised agreement is executed, all terms and conditions of this Agreement shall remain in place. Nothing herein shall be construed to obligate the City to revise any term or condition of this Agreement. Section 34. Covenant Not to Sue Flagler hereby covenants that it shall not commence or maintain any lawsuit, administrative proceeding, or other action, whether at law or in equity, which challenges the validity or enforceability of this Agreement, any provision of this Agreement or any payment obligation under this Agreement. This covenant shall be binding upon, and inure to, the benefit of the parties, their successors, assigns, heirs, legal representatives, and personal representatives. Section 35. Cooperation, Expedited Permitting and Time is of the Essence The Parties agree to cooperate with each other to the full extent practicable pursuant to the terms and conditions of this Agreement. The Parties agree that time is of the essence in all aspects of their respective and mutual responsibilities pursuant to this Agreement. The Parties agree to work together, to the extent practicable and allowed by Law, towards the goal of maximizing the Gross Slot Revenues generated at Flagler's Facility at the earliest possible time. The City shall use its best efforts to expedite to the extent reasonably practical the permitting and approval process in an effort to assist the Flagler in achieving its demolition, development and construction milestones. The City will accommodate requests from Flagler'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 Flagler in order to facilitate expediting the processing and issuance of all permit applications. Notwithstanding the foregoing, and subject to the provisions of Section 550, Florida Statutes, the City shall not be obligated to issue development approvals or permits to the extent Flagler does not comply with the applicable requirements of the City's land development code and applicable building codes. Section 38. Acknowledgement of Application With Chapter 550, Florida Statutes. Nothing contained in this Agreement is intended to (i) limit or abridge any of Flagler's rights or privileges under Chapter 550, Florida Statutes, or (ii) 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 Flagler, its successors and/or assigns fails to act in accordance with the terms of the Existing Zoning, the City shall seek enforcement of said violation upon the Property. Enforcement of this Agreement shall be by action against any parties or person violating, or attempting to violate, any covenants set forth in this Agreement. The prevailing party in any action or suit pertaining to or arising out of this Agreement shall be entitled to recover, in addition to costs and disbursements allowed by law, such sum as the Court may adjudge to be reasonable for the services of his/her/its attorney. This enforcement provision shall be in addition to any other remedies available at law, in equity or both. Section 38. First Source Hiring Commitment. Flagler hereby acknowledges and agrees that it will adopt and implement an employment policy pursuant to which it will give a preference in the hiring process to residents of the City when faced with otherwise equally -qualified applicants for positions at Flagler. [Signature pages to follow.] IN WITNESS WHEREOF, the City and Flagler have caused this Agreement to be duly executed. ATTEST: CLERK OF THE BOARD Deputy Clerk CITY OF MIAMI, FLORIDA, a political subdivision of the State of Florida By City Manager Approved as to form and legal sufficiency: By City Attorney Witnesses (if partnership): WEST FLAGLER ASSOCIATES, LTD., a Florida limited partnership (Print Name) (Print Name) ATTEST: Print Name of Secretary STATE OF FLORIDA COUNTY OF By: Name: Title: The foregoing instrument was acknowledged before me this day of 2007, by , as for WEST FLAGLER ASSOCIATES, LTD. Signature of Notary Public Print, Type or Stamp Commissioned Name of Notary Public Personally Known OR Produced Identification Type of Identification Produced # 4963431_v5