HomeMy WebLinkAboutExhibit2DEVELOPMENT AGREEMENT BETWEEN
CITY OF MIAMI, FLORIDA
AND FLORIDA GAMING CENTERS, INC.D/B/A MIAMI JAI -ALAI REGARDING
SLOT MACHINES AT MIAMI JAI -ALAI
THIS AGREEMENT is entered this day of , 2008, by and between
FLORIDA GAMING CENTERS, INC D/B/A (hereinafter referred to as "Miami Jai -
Alai"), and the CITY OF MIAMI, FLORIDA, a political subdivision of the State of
Florida (hereinafter referred to as the "City").
WITNES SETH:
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 q.nd oper,,tes M^ xr__ Jai -Alai which h is
located in the City at 3500 Northwest 37th Ave;
WHEREAS, expansion of wagering capabilities to include slot machines
at Miami Jai -Alai will generate substantial additional revenues for the City;
WHEREAS, Miami Jai -Alai 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 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
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 Miami Jai-
Alai'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
tGituo shall ieieiV the instant AgiEGittcit in its entirety ad 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.
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 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, 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.
VC1G i1C;lit" means the carrying g out of any baildi ig 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.
"Miami Jai -Alai" shall have the meaning assigned in the recital clauses above.
cc� q - Jai-Aiai Year"
3s a� C' begins
Fiscal Year means Miami Jai-Alai.s fiscal year, which Oegins
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 Gioss Slot Revenues- fneans all Gross Slot Revenues geneiaieC by
Miami Jai -Alai 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 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.
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 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,
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
Agreenieiit 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
Termination").
Section 5. Compensation
a. Beginning on the date that any slot machines are authorized and operating
at Miami Jai -Alai, 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 $250,000,000 plus (y) two percent (2%) 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 $4,290,000.00. 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 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
Miami Jai -Alai to the City during any Miami Jai -Alai Fiscal Year. A subsequent change
of the jai -Alai
ui-riul Fiscal
Year shall not alter the annual basis unless
1leJ5 agreed to by y the
parties.
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.
The City shall have the right to audit the books, records, and accounts of Miami
Jai -Alai 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. Miami Jai -Alai 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 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 tiitiW Ju1� uvciiaavl,. at no cost to City in vviit,o iform.
.
Audited financial statements of Miami Jai -Alai 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 Miami Jai -Alai.
Miami Jai -Alai 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 Miami Jai-
Alai's records relating to Gross Slot Revenues, 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 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 shad be paid by Miami jai -Alai to
the City
.tj i1i 7ter. (irv:, j daysof
_..tice
of the audit finding, including interest and the administrative fee if owed.
Section 7. Development Fees. Miami Jai -Alai 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. 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. After the payment
of any Development Fees, Miami Jai -Alai 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"). Miami
Jai -Alai 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
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QllcCL,J'iJ 11 ;. CL I.LL711 L�.VJ lV VV 111 v11 1�'iicixl 11 JGl-latll 1J V11 L1 ilvll u.iv 1�� V:'Iv�JJ �aav • u i.clum
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 due
during any Miami Jai -Alai Fiscal Year shall be adjusted downward by the total amount of
any credits 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 shall
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 full month of slot operations would
be $168,750.00 (e.g., 1.5% 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
of $48,750.00 (e.g., $168,750.00 less $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. Miami Jai -Alai 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.
Yi ctioni 8. Pen-cdiied Deveiopaient Uses and Buiiciiiig 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 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
i ounert ,s, cc rnrk..�;ive 1a1,
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 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. 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 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 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.
0YY44 of1 iy of 1
e , as titherwige 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 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;
(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 E eeti a raze h t and shall neA b bY. ct to any S`'. :." 'c. anger to the C £ s Land
3 ,� 5 �
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. Miami Jai -Alai 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 Miami Jai-Alaiof 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 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 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 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 Jai -Alai 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 Miami Jai -Alai:
With copies to:
City Manager
City of Miami
3500 Pan American Drive
Miami, FL 33133
City Attorney
Miami Riverfront Center
444 S.W. 2nd Ave.
Miami, FL 33130
West Miami Jai -Alai Associates,
Ltd.
Attn: Lim Weeiris, Genera -I 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
Miami Jai -Alai 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 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 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, 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 by Miami Jai -Alai or its
agents, employees, officers or coritlactors. Miami Jai -Alai shall 1 ave the r gh 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 Miami Jai -Alai, 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 Miami Jai -Alai shall each have the right to
specific performance of this Agreement in court.
Section 20. Voluntary payment.
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. 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 respeci to the subject ilatte hereof. This Agreement supersedes a.iiy 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 Teini of this Agreement, Miami Jai -Alai 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) Miami Jai -Alai shall be in default under this Agreement if any of the
following events occur and continue beyond the applicable giace 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
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.
(iii) 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 60 days of filing or a
receiver is appointed for all the property of Miami Jai -Alai 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 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 bfeach within said thirty (33) day period aiid 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,
in addition to any other rights provided by law, shall have the right to impose a lien on
the land on which Miami Jai -Alai 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 their 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
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 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 of Miami 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. 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 anti ieguiate 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
that would have the reasonable or foreseeable result of negatively impacting the
generation or capacity of generation of Gross Slot Revenues at Miami Jai -Alai, 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 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
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 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
Agleiieif. The Parties agr�.eGvGC together, to the extent practicable and' Cl iovvcu by
Law, towards the goal of maximizing the Gross Slot Revenues generated at Miami Jai-
Alai'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 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 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 38. 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 .si ui!�p ssi s and/or assigns fails to an accordance with the terms Existing
t i... �..,: 'LA. JrJ C..c_ii/V: f�v _ins bta11.5 act in LEei S��i4.e .td ry�4✓ t��wr.x.z3J of the _���.:,i�
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. 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
when faced with otherwise equally -qualified applicants for positions at Miami Jai -Alai.
[Signature pages to follow.]
IN WITNESS WHEREOF, the City and Miami Jai -Alai 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 MIAMI JAI -ALAI ASSOCIATES,
LTD.,
(Print Name)
(Print Name)
ATTEST:
Print Name of Secretary
STATE OF FLORIDA
COUNTY OF
a Florida limited partnership
By:
Name:
Title:
The foregoing instrument was acknowledged before me this day of
2007, by , as for WEST MIAMI JAI -ALAI
ASSOCIATES, LTD.
Signature of Notary Public
Print, Type or Stamp Commissioned
Name of Notary Public
Personally Known OR Produced Identification
Type of Identification Produced