HomeMy WebLinkAboutSubstitution Memo from Outside CounselOUTSIDE COUNSEL
MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Raquel A. Rodriguez, Outside Counsel
DATE: March 18, 2021
RE: March 25, 2021 City Commission Meeting Agenda — Substitution of
FR.2 — Amend Code - Amend Code - Authorize Limited Gambling
File No. 8745
Item FR.2 on the March 25, 2021 City Commission conditionally
authorizes certain gambling uses by West Flagler Associates, Ltd. as legal non-
conforming uses under the Miami 21 Code at the real property described as Lot
4, Block 4, of the Elwood Court Subdivision, recorded at Plat Book 9, Page 181
of the Public Records of Miami -Dade County, Florida and Tract C of the
Executive Plaza Subdivision, recorded at Plat Book 121, Page 87 of the Public
Records of Miami -Dade County, Florida.
The item, as published, inadvertently excluded a subsection form Section
2. The language is highlighted in the attached Substitution.
cc. Art Noriega, V, City Manager
Miriam Santana, Agenda Coordinator
Victoria Mendez, City Attorney
OC
8745 Subsh-N -bon N1enao
CCU -hsi (Le C'.oUr) S.e.P
om
City of Miami
Legislation
Ordinance:
City Hail
3500 Pan American Drive
Miami, FL 33133
www.miarnigov,com
File Number: 8745 Final Action Date:
AN ORDINANCE OF THE MIAMI CITY COMMISSION, WITH
ATTACHMENT(S), PURSUANT TO A PROPOSED SETTLEMENT
AGREEMENT, ATTACHED AND INCORPORATED AS EXHIBIT "1"
("SETTLEMENT AGREEMENT"), (A) CONDITIONALLY AUTHORIZING
LIMITED GAMBLING USES AT THE REAL PROPERTY DESCRIBED AS LOT
4, BLOCK 4 OF THE ELWOO❑ COURT SUBDIVISION RECORDED AT PLAT
BOOK 9, PAGE 181 OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY,
FLORIDA ("COUNTY") AND TRACT C OF THE EXECUTIVE PLAZA
SUBDIVISION RECORDED AT PLAT BOOK 121, PAGE 87 OF THE PUBLIC
RECORDS OF THE COUNTY, AS MORE PARTICULARLY DESCRIBED IN
COMPOSITE EXHIBIT "A" OF THE SETTLEMENT AGREEMENT, ATTACHED
AND INCORPORATED (COLLECTIVELY, "PROPERTY" OR "LOCATION"),
UPON MEETING CERTAIN CONDITIONS AND IMPOSING PERMANENT
PROHIBITIONS ON ALL OTHER FORMS OF GAMBLING AT THE PROPERTY
AS A CONDITION OF ALLOWING THE SPECIFIED GAMBLING USES, ALL OF
WHICH SHALL TAKE EFFECT ONLY IF WEST FLAGLER ASSOCIATES, LTD.
("WEST FLAGLER") HAS (i) ENTERED INTO THE SETTLEMENT
AGREEMENT WITH THE CITY OF MIAMI ("CITY") AS APPROVED BY THE
CITY COMMISSION AND IN A FORM ACCEPTABLE TO OUTSIDE COUNSEL
AND (ii) FULFILLED ALL TERMS AND CONDITIONS OF SUCH SETTLEMENT
AGREEMENT; (B) CONDITIONALLY APPROVING A CARD ROOM AT THE
PROPERTY TO TAKE EFFECT ONCE WEST FLAGLER HAS OBTAINED A
CARD ROOM PERMIT FOR THE PROPERTY FROM THE STATE OF
FLORIDA'S DIVISION OF PARI-MUTUEL WAGERING, SUCH CARD RCR)MMD
BE CONTAINED WITHIN THE TOTAL SUMMER JAI ALAI FACILITY r -:
FOOTPRINT, SIZE, AND DESIGN PARAMETERS AS PROVIDED IN rr
SETTLEMENT AGREEMENT AND SUCH CARD ROOM FURTHER NOT TCG iC)
EXCEED 20,000 SQUARE FEET OF THE SUMMER JAI ALAI FACILITY DR
MAXIMUM CAPACITY OF 500 PERSONS (SUBJECT TO APPLICABLEFI rrT
SAFETY CODES) AND SHALL NOT OPERATE FOR MORE THAN SIRX.EE ¢ D
(16) HOURS PER DAY; AND (C) PERMANENTLY BANNING ALL OTHER cn
FORMS OF GAMBLING AT THE PROPERTY EXCEPT AS SPECIFICA `LY^'
PROVIDED HEREIN; CONTAINING A SEVERABILITY CLAUSE; PROVIDING
FOR AN EFFECTIVE DATE.
WHEREAS, on April 15, 2019, West Flagler Associates, Ltd. ("West Flagler") served a
lawsuit against the City of Miami ("City") in the Eleventh Judicial Circuit Court in and for Miami -
Dade County, Case No: 19-10140 CA (43), which was subsequently removed to the United
States District Court for the Southern District of Florida, Case No,: 19-21670-CIV-Scola; and
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WHEREAS, the West Flagler has proposed a settlement agreement, attached and
incorporated as Exhibit "1", as approved by the City Commission pursuant to Resolution No. R-
on 2021 and in a form acceptable to Outside Counsel ("Settlement
Agreement"), which provides that West Flagler may proceed with applying for its permit to build
a summer jai alai facility ("Permit") without the requirement of obtaining an exception approved
by a four -fifths (415th) vote of the City Commission as set forth in Article 6, Section 6.1, Table 13
of Ordinance No. 13114, the Zoning Ordinance of the City of Miami, Florida ("Miami 21 Code"),
as amended by Ordinance No. 13791 ("Supplemental Regulations'); that the City Commission
will consider an ordinance approving West Flagler's operation of a card room pursuant to
Section 849.086, Florida Statutes, and such approval is a condition of the Settlement
Agreement; that West Flagler agrees it will not operate any form of gaming, including slot
machines, craps, roulette, or video lottery terminals in its summer jai alai facility (as further
described below)("Property" ); providing that if gaming or wagering on sports are made lawful
and generally available under state law, then West Flagler will be permitted to conduct such
sports wagering or gaming at the Property on such conditions as provided by state law and, if
required by state law, West Flagler will comply with the Supplemental Regulations of the Miami
21 Code in securing approval of sports betting from the City; and that each party will bear their
own attorneys' fees and costs; and
WHEREAS, West Flagler further agrees that any future applications for gambling
facilities at any other locations, including but not limited to future jai alai frontons and card rooms
at other locations, are subject to the requirements of the Miami 21 Code, including the
Supplemental Regulations; however, the Parties further agree that this restriction does not apply
to the facilities exempted from the Miami 21 Code as provided therein; and
WHEREAS, West Flagler may assign the Permit and/or its rights under its partnership
with its partner entity regarding the Property Location to an existing or new entity so long as
West Flagler remains a partner of any such assignee entity and that assignee entity agrees to
be bound by the terms of the Settlement Agreement; provided, however, that West Flagler
agrees that it cannot assign its rights under the Permit or the Settlement Agreement to a non-
affiliated third party assignee and that the Settlement Agreement does not create any direct or
third party beneficiary rights in its partner entity or any other person except a permissible
assignee who agrees to be bound by the terms of the Settlement Agreement; and
WHEREAS, West Flagler agrees that the space utilized for the jai alai fronton and other
pari-mutuel activities as defined under Chapter 550, Florida Statutes, will not provide permanent
seating for more than 4,000 patrons, provide for more than 100,000 square feet of exhibitipnn
space, or provide off-street parking for more than 1,000 vehicles and will not reach the miliml
thresholds of a Regional Activity Complex as defined in Section 1.1(e) of the Miami 21 ,Ecde;
that the Property will be subject to a compulsory review by the City's Planning and Zoriug
Departments and will comply with the Design Review Criteria set forth in Article 4, Tate 12 L
the Miami 21 Code, a copy of which is attached to the Settlement Agreement; and nottiittg
herein shall exempt the development of the overall project where West Flagler's prop ed
alai fronton will be located from complying with all other applicable provisions of the Ami
Code; and CD
WHEREAS, the City and West Flagler have agreed to execute a written Settlement
Agreement memorializing the terms of the settlement; and
WHEREAS, Raquel A. Rodriguez, Esquire, acting as outside counsel in the pending
litigation ("Outside Counsel"), has investigated the claim and lawsuit and recommends that said
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claim and lawsuit be settled for the terms summarized above and as memorialized in the written
Settlement Agreement; and
WHEREAS, the City and West Flagler have agreed that as a condition to the Settlement
Agreement and in lieu of a development agreement, the owner (or owners) of the pertinent
property must provide written consent to the permanent use restrictions being imposed on the
pertinent property pursuant to the Settlement Agreement; and
WHEREAS, the approval of an ordinance implementing the terms of the Settlement
Agreement regarding the allowed and restricted uses at the Property is a condition of the
Settlement Agreement; and
WHEREAS, the City and West Flagler have agreed that the Settlement Agreement will
not be consummated unless all conditions of the Settlement Agreement are fulfilled and the City
Commission approves said ordinance;
NOW, THEREFORE, BE 1T ORDAINED BY THE COMMISSION OF THE CITY OF
MIAMI, FLORIDA:
Section 1. The recitals and findings contained in the Preamble to this Ordinance
are adopted by reference and incorporated as fully set forth in this Section.
Section 2. The City Commission hereby approves the following uses as legal non -
confirming uses under the Miami 21 Code at the real property described as Lot 4, Block 4
of the Elwood Court Subdivision recorded at Plat Book 9, Page 181 of the Public Records
of Miami -Dade County, Florida ("County") and Tract C of the Executive Plaza Subdivision
recorded at Plat Book 121, Page 87 of the County, as more particularly described in
Composite Exhibit "A" of the proposed Settlement Agreement, attached and incorporated
("Property'" or "Location"); provided, however, that such approval is conditioned as follows:
A.) Approval for Operation of Summer Jai Alai Fronton.
i) Approval of West Flagler's application for a building permit or certificate of
use for a summer jai alai fronton at the Location and any related permits, licens s,
and approvals required to be obtained by West Flagler, including, but not limite d,aZi
business tax receipts, shall not be subject to the Exception requirements of the F--; --
Supplemental Regulations of the Miami 21 Code "1;��.
ii) West Flagler's applications, including its building permit or certificate tit:use
applications, shall be processed in a timely manner so long as all other appli�r. ble
criteria are met. -. a
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iii) West Flagler may assign the Permit and/or its rights under its partnersfljp cn
with its partner entity pursuant to a Memorandum of Understanding with a parer ry
entity owned and controlled by 3195 Property, LLC, a Delaware limited liability
company, and/or the entities that own the land described in the Permit as part of
Composite Exhibit "A" to the Settlement Agreement (collectively, "Partner Entity")
regarding the Location to an existing or new entity so long as West Flagler remains
a partner of any such assignee entity and that assignee entity agrees in writing to
be bound by the terms of this Settlement Agreement. West Flagler agrees that it
cannot assign its rights under the Permit or the Settlement Agreement to a non-
affiliated third party assignee and that the Settlement Agreement does not create
M
Fri
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any direct or third party beneficiary rights in its Partner Entity or any other person
except a permissible assignee who agrees to be bound by the terms of the
Settlement Agreement.
iv) The space utilized for the summerjai alai fronton and other pari-mutuel
activities as defined under Chapter 550, Florida Statutes will not provide
permanent seating for more than 4,000 patrons, provide for more than 100,000
square feet of exhibition space, or provide off-street parking for more than 1,000
vehicles and will not reach the minimum thresholds of a Regional Activity Complex
as defined by Section 1.1(e) of the Miami 21 Code.
v) The Property will be subject to a compulsory review by the City's Planning
and Zoning Departments and will comply with the Design Review Criteria set forth
in Article 4, Table 12 of the Miami 21 Code, a copy of which is attached hereto and
incorporated to the Settlement Agreement as Exhibit "B." Nothing herein shall
exempt the development of the overall project at the property where the Location is
situated from complying with all other applicable provisions of the Miami 21 Code.
B.) Approval for Operafion_of Card Room.
(i)
Pursuant to Section 849.086(16), Florida Statutes, a card room use by
West Flagler in conjunction with the Permit is approved at the Location to
be effective only if and when the Florida Department of Business
Regulation Division of Pari-Mutuel Wagering ("DPBR") issues West Flagler
a permit to operate a card room at the Location. West Flagler's operation
of the card room, and any related permits, licenses, and approvals.
including, but not limited to business tax receipts, shall not be subject to the
Exception requirement of the Supplemental Regulations of the Miami 21
Code,
(ii) If DPBR requires a separate vote pursuant to Section 849.086(26), Florida
Statutes, to approve the card room operation at the Location in conjunction
with the Permit after the summerjai alai fronton is operational, nothing
herein shall bind any future Miami City Commission on its consideration of
the request for approval of the card room. If such a subsequent vote is C ti
required by DPBR, West Flagler will be required to obtain the required
votes for approval, after a public hearing, with proper notice and all cos#gto
be paid by West Flagler. If such additional approval by the City_?
Commission is required by DPBR, the votes required for West Flagler:
card room at the Location shall not be subject to the Exception rrl
requirements of the Supplemental Regulations of the Miami 21 Cod►d
only a majority vote will be required for approval of a card room open tttin iIT� rrrt
conjunction with West Flagler's jai alai fronton operation. +` LO cJ
(iii) The card room shall be contained within the total jai alai fronton facility 4'
footprint, size, and design parameters as provided in Section 2.A), shall not
exceed 20,000 square feet of the jai lai fronton facility or maximum capacity
of five hundred (500) persons (subject to applicable fire safety codes), and
shall not operate for more than sixteen (16) hours per day.
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(iv) No other terms or conditions of the Supplemental Regulations of the Miami
21 Code shall apply to the approval process for the card room and only a
simple majority vote of the Commission shall be required.
(v) Failure to obtain subsequent approval shall in no way affect the validity or
enforceability of the Settlement Agreement.
C.) Limitation on Future Uses.
i) In consideration for permitting the foregoing limited uses, the Location will
never be used for gaming or wagering activities, including but not limited to slot
machine type gambling devices as defined by Section 551.102(8), Florida Statutes,
the games of craps or roulette, or video lottery terminals CA/LT"') and all such uses
are permanently prohibited at the Location; provided that if gaming or wagering
activities on sports (also known as "sports betting") are made lawful and generally
available to all residents of the State of Florida ("State"), either online or at
professional sports venues under State law, then West Flagler will be permitted to
conduct such sports betting at the Location on such terms and conditions as
provided by State law. However, if sports betting is made lawful and available by
State law in a manner that requires local government approval, West Flagler shall
comply with the Supplemental Regulations of the Miami 21 Code, including its
Exception provisions, in securing such approval. Failure to obtain such approval
shall in no way affect the validity or enforceability of the Settlement Agreement.
ii) Any future applications for gambling facilities at any other locations owned
or operated by West Flagler, including but not limited to future summer jai alai
frontons and card rooms at such other locations, are subject to the requirements of
the Supplemental Regulations of the Miami 21 Code, including the Exception
provisions. The restriction under this Section 2.C.ii) does not apply to the facilities
exempted from the Supplemental Regulations of the Miami 21 Code as provided in
Section 4 of Ordinance No. 13791.
Section 3. This Ordinance has no effect on and does not operate to prohibit any other
gambling or wagering activity otherwise lawfully permissible under Chapters 550 and 849,
Florida Statutes, including gambling and pari-mutuel activities, currently conducted under the
licenses held by West Flagler known as "Magic City Casino" located at 450 N.W. 37th Avenue,
Miami, Florida 33125 ("Magic City Casino") and by Miamii Casino, LLC d/bla/ Casino Miami
located at 3500 N.W. 37th Avenue, Miami, Florida 33142 ('Casino Miami"), including them
continued operation of slot machines. This Ordinance does not prohibit Magic City Cart
and/or Casino Miami from engaging in pari-mutuel activities in the future that may bexorrnitt
by State law. n7
Section 4. if any section, part of a section, paragraph, clause, phrase, or w r5.?oft js
Ordinance is declared invalid, the remaining provisions of this Ordinance shall not I ffecd. 1
17
r t°
Section 5. This Ordinance shall become effective immediately upon its adoOon
and signature of the Mayor.' �`'
This Ordinance shall become effective as specified herein unless vetoed by the Mayor within ten (10)
days from the date it was passed and adopted. If the Mayor vetoes this Ordinance, it shall become
effective immediately upon override of the veto by the City Commission or upon the effective date stated
herein, whichever is later.
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APPROVED AS TO FORM AND CORRECTNESS:
OUTSIDE COUNSEL
City of Miami Page 5 of 6 File ID: 8745 (Revision: A) Printed on: 31f8/2021