AGREEMENT BETWEEN FLORIDA GAMING CENTERS, INC., D/B/A MIAMI JAI ALAI, THE SUMMER JAI ALAI PARTNERSHIP AND MIAMI-DADE COUNTY REGARDING SLOT MACHINES IN PARI-MUTUEL FACILITIES THIS AGREEMENT is entered this 31 day of January, 2005, by and between...
AGREEMENT BETWEEN FLORIDA GAMING CENTERS, INC., D/B/A MIAMI XXX XXXX, THE SUMMER XXX XXXX PARTNERSHIP AND MIAMI-DADE COUNTY REGARDING SLOT MACHINES IN PARI-MUTUEL FACILITIES THIS AGREEMENT is entered this 31 day of January, 2005, by and between Florida Gaming Centers, Inc. d/b/a Miami Xxx Xxxx, a Florida corporation ("Miami Xxx Xxxx"), and Summer Jai-Alai partnership, a Florida partnership ("Summer Jai-Alai;" Miami Xxx Xxxx and Summer Jai-Alai hereinafter collectively referred to as "the PARI-MUTUEL"), and MIAMI-DADE COUNTY, FLORIDA, a political subdivision of the State of Florida (hereinafter referred to as the "COUNTY"). 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 amendment. Article X, Section 23 of the Florida Constitution, a copy of which amendment is attached and incorporated by reference as Exhibit A ("Amendment 4"); WHEREAS, pursuant to a resolution passed on January 20, 2005, the Miami-Dade Board of County Commissioners called a countywide special election to be held by the County on Tuesday, March 8, 2005 (the "Special Election") for the purpose of submitting to the qualified electors of the County the question of whether to authorize slot machines in certain existing, licensed PARI-MUTUEL facilities as provided in Article X, section 23; WHEREAS, the COUNTY and the PARI-MUTUEL recognize that each entity impacts the health and general welfare of the residents of Miami-Dade County; and WHEREAS, the COUNTY and the PARI-MUTUEL recognize that the residents of Miami-Dade County have legitimate concerns over increased development, traffic, congestion, and the quality of life in Miami-Dade County; and WHEREAS, the PARI-MUTUEL desires to assist the COUNTY in 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 COUNTY will incur as a result of the PARI-MUTUEL's slot machine operations in Miami-Dade County; and WHEREAS, in consideration of the COUNTY incurring additional costs of administration and services, the COUNTY experiencing losses of revenues, and other good and valuable consideration, the PARI-MUTUEL and the COUNTY agree to enter into this Agreement; and
WHEREAS, prior to the special election on March 8, 2005, the COUNTY will
incur significant upfront expenses in planning and preparing for the possibility
that voters will authorize slot machines, regardless of the outcome of the
election; and
WHEREAS, such upfront and start-up expenses include, but are not limited
to expenses related to planning and developing road, signal and sign
improvements to handle additional traffic at and near the PARI-MUTUEL
facilities, forecasting and planning necessary enhancements to the rail and bus
transit system on routes to and from the PARI-MUTUEL facilities, planning and
development of additional infrastructure needs at the airport and seaport to
accommodate increased tourist traffic resulting from the presence of slot
machines in the COUNTY, planning and development of a coordinated marketing and
promotional campaign related to having slot machines in the COUNTY, and/or
studying new economic development opportunities, such as hotel and resort
complexes, retail centers and restaurants, presented by having slot machines in
the COUNTY.
WHEREAS, if the Referendum is adopted by a majority of the qualified
electorate voting in the Special Election, slot machines shall be authorized to
operate in each of the following PARI-MUTUEL facilities located in Miami-Dade
County, Florida:
Calder Race Course
00000 X.X. 00xx Xxxxxx
Xxxxx, XX. 00000
Flagler Greyhound Track
000 XX 00xx Xx
Xxxxx, XX 00000
Miami Jai-Alai Fronton
0000 XX 00xx Xxx
Xxxxx, XX 00000
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
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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 COUNTY or the PARI-MUTUEL.
f) The whereas clauses set forth above shall be deemed incorporated
herein.
g) All exhibits and appendices attached hereto shall be deemed
incorporated herein.
Section 2. Definitions As used herein:
"Agreement" means this Agreement between the COUNTY and the PARI-MUTUEL.
"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.
"COUNTY" means Miami-Dade County, a political subdivision of the State of
Florida, and all departments, agencies and instrumentalities thereof.
"Effective Date" shall have the meaning set forth in Section 3 hereof.
"Fiscal Year" means the County's fiscal year, which begins October 1 and
ends September 30.
"Gross Slot Revenues" means all currency and other consideration placed
into any slot machine at the PARI-MUTUEL FACILITY, less payouts to and credits
redeemed by players at the PARI-MUTUEL FACILITY.
"Pari-Mutuel Facility" means the facilities at which the PARI-MUTUEL
operates.
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"Slot Machine" means any machine as defined by Section 849.16 Florida
Statutes or any other Applicable Laws.
Section 3. Term and Effective Date
Subject to Section 28 and the terms and conditions contained herein, this
Agreement between the COUNTY and the PARI-MUTUEL shall be effective as of the
effective date of the resolution of the Miami-Dade Board of County Commissioners
approving this Agreement.
This Agreement shall remain in effect for a term of 30 years and shall be
automatically renewed for successive thirty (30) year terms unless the COUNTY
sends to the PARI-MUTUEL written notice of its intent not to renew at least
thirty (30) days prior to the expiration of any such term or renewal term. This
Agreement may not be terminated during its term except as expressly provided
herein.
Section 4. Compensation
a. To help offset the upfront expenses set forth in the whereas clauses,
the PARI-MUTUEL agrees to pay the COUNTY one million, three hundred thirty three
thousand, three hundred thirty three dollars ($1,333,333.00) within ten (10)
calendar days (including weekends and holidays) after the effective date of this
Agreement (the "Flat Fee Payment"), pursuant to the provisions of Section 7. In
addition, beginning on the date that any slot machines are authorized and
operating, and continuing through the term of the Agreement, the PARI-MUTUEL
agrees to pay the COUNTY a monthly amount in arrears equal to one and one-half
percent (1.50 %) of Gross Slot Revenues generated at the PARI-MUTUEL (the
"Monthly Percentage Payment"). The Monthly Percentage Payment shall become due
and payable in the amount calculated pursuant to the immediately-preceding
sentences on the 15th day of the calendar month following its accrual. The
Monthly Percentage Payment shall be made as an advance on the total amount of
any percentage payments on Gross Slot Revenues paid by the PARI-MUTUEL to the
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COUNTY. In addition to the cumulative amounts of the Monthly Percentage Payments
during the PARI-MUTUEL's fiscal year, the PARI-MUTUEL shall on an annual basis
within 60 days following the conclusion of such PARI-MUTUEL's fiscal year pay
the County a supplemental annual percentage of Gross Slot Revenues in accordance
with the sliding scale set forth below for the additional amounts, if any, of
the percentage of Gross Slot Revenues that are due to the COUNTY for the
preceding fiscal year (the "Annual Sliding Scale Percentage Payment") after
giving credit for the Monthly Percentage Payments already made to the COUNTY for
such fiscal year:
One and one-half percent (1.50 %) of the first $250 million of
Gross Slot Revenues;
Two percent (2.0 %) of any and all amounts by which the Gross
Slot Revenues exceed $250 million;
[For example, assuming that the first full calendar year of slot machine
operations in the PARI-MUTUEL corresponded directly to such PARI-MUTUEL'S fiscal
year beginning January 1, 2006, and concluding December 31, 2006, and the total
amount of the Gross Slot Revenues generated by the PARI-MUTUEL FACILITY during
such fiscal year was $500,000,000.00, the total amount of the Annual Sliding
Scale Percentage Payment would be $8,750,000 (i.e., $3,750,000, representing 1.5
% of the first $250 million of Gross Slot Revenues plus $5,000,000 representing
2.0 % of any and all amounts by which the Gross Slot Revenues exceeded $250
million less the cumulative amounts of the Monthly Percentage Payments already
paid to the COUNTY over the course of such fiscal year.]
The PARI-MUTUEL shall submit payment of the fee by corporate check made payable
to the COUNTY by delivery to the following address:
Finance Department
Miami-Dade County
Xxxxxxx X. Xxxxx Center
000 X. X. 000 Xxxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
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Together with each payment, the PARI-MUTUEL shall submit to the County an
accounting of the operation of the slot machines and the computation of the fee.
b. Prepayment of County Costs Incurred. In addition to any fees and taxes
as may be imposed pursuant to Applicable Laws, the PARI-MUTUEL FACILITY has
agreed to and has paid concurrent with the execution of this Agreement the sum
of $1,333,333.00 to pay the COUNTY for any out-of-pocket costs as defined
herein, up to a maximum amount of the Flat Fee Payment, that are incurred by the
COUNTY as a result of the start-up of slot machine operations (the "Start-Up
Costs"). Such Start-Up Costs shall include, but are not limited to, expenses
related to planning and developing road, signal and sign improvements to handle
additional traffic at and near the PARI-MUTUEL facilities, forecasting and
planning enhancements to the rail and bus transit system on routes to and from
the PARI-MUTUEL facilities, planning and development of additional
infrastructure at the airport and seaport to accommodate increased tourist
traffic resulting from the presence of slot machines in the COUNTY, planning and
development of a coordinated marketing and promotional campaign related to
having slot machines in the COUNTY, and studying new economic development
opportunities, such as hotel and resort complexes, retail centers and
restaurants, arising from the operation of slot machines in the COUNTY.
Section 5. Regulatory Cost Reimbursement.
If the Florida Legislature passes any act of law establishing an
affirmative obligation on the part of the COUNTY to regulate slot machine
operations, each of the PARI-MUTUEL agree to reimburse the COUNTY for one-third
of any costs to the COUNTY attributable to such a law.
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Section 6. Auditing.
The COUNTY shall have the right to audit the books, records, and accounts of the
PARI-MUTUEL directly relating to the calculation of Gross Slot Revenues, upon
reasonable notice, in order to ascertain the correctness of the Gross Slot
Revenues Payment required to be made to the COUNTY pursuant to this Agreement,
including the accurate reporting of Gross Slot Revenues and the determination of
Gross Slot Revenues Payment under this Agreement. The PARI-MUTUEL 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 the PARI-MUTUEL 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, the PARI-MUTUEL
shall make same available at no cost to COUNTY in written form. Audited
financial statements of the PARI-MUTUEL which in addition details the amount of
annual Gross Slot Revenues shall be provided to the COUNTY within four (4)
months of the close of each fiscal year of the PARI-MUTUEL.
The PARI-MUTUEL shall preserve and make availabl, at reasonable times for
examination and audit by the COUNTY, all financial records, supporting
documents, statistical records, and any other documents pertinent to the
calculation of Gross Slot Revenues and the Gross Slot Revenues Payment 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 the PARI-MUTUEL's records relating to Gross Slot
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Revenues, the PARI-MUTUEL shall comply with all requirements thereof; however, no
confidentiality or nondisclosure requirement of either federal or state law
shall be violated by the PARI-MUTUEL. Any incomplete or incorrect entry or
entries in excess of Two Hundred Thousand and 00/100 ($200,000.00) of
cumulative, annual funds that should have been paid to the COUNTY as a Gross
Slot Revenues Payment in a particular fiscal year in such books, records, and
accounts shall be a basis for the COUNTY's applying an administrative fee of ten
percent (10%) of any amount owed to the COUNTY plus interest in an amount of one
percent (1%) per month until the amount owed has been paid. Any underpayment
shall be paid by the PARI-MUTUEL to the COUNTY within ten (10) days of notice of
the audit finding, including interest and the administrative fee if owed.
Section 7. Fees. The PARI-MUTUEL shall pay all impact fees as may be
required pursuant to the Code of Miami-Dade County and other Applicable Laws as
such fees become due and payable. After any such payment, the PARI-MUTUEL shall
be entitled to deduct from the Monthly Percentage Payment in the subsequent
month an amount equal to the amount in developmental impact fees that the
PARI-MUTUEL has paid to the COUNTY for square footage used for slot machines.
The PARI-MUTUEL shall also be entitled to a credit against fees assessed by the
COUNTY as set forth in the Code of Miami-Dade County for the administrative
processing and review of applications for development permits for square footage
used for slot machines submitted to Miami-Dade County for review and approval.
Notwithstanding and prevailing over any other provision of this section,
this section shall not apply to the construction or renovation of any square
footage of buildings on the PARI-MUTUEL FACILITY not used for slot machines,
including but not limited to hotels, retail uses, or commercial uses.
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The PARI-MUTUEL acknowledges that it is required to obtain COUNTY
occupational licenses related to slot machine operations pursuant to the Code of
Miami-Dade County during the term of this Agreement, but pursuant to this
section, is deemed to have prepaid any fees for such licenses.
Section 8. Bond and assignment of revenues.
Within thirty (30) days following the commencement of slot machine
operations at the PARI-MUTUEL, the PARI-MUTUEL shall provide a bond or
irrevocable letter of credit in the amount of $100,000.00 to the COUNTY to
secure the obligations of the PARI-MUTUEL under this Agreement. The PARI-MUTUEL
shall keep the bond or irrevocable letter of credit in effect until the earlier
of such time as (a) slot machine operations cease at the Pari-Mutuel Facility;
(b) this Agreement terminates or (c) the COUNTY Manager agrees to waive or
modify the requirements of this section based upon satisfactory payment history
by the PARI-MUTUEL.
Section 9. 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 COUNTY: County Manager
Miami-Dade County
Xxxxxxx X. Xxxxx Center
000 X.X. 0xx Xxxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
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With a copy to: County Attorney
Miami-Dade County
Xxxxxxx X. Xxxxx Center
000 X.X. 0xx Xxxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
To the PARI-MUTUEL: Florida Gaming Centers, Inc.,
Attn: W. Xxxxxxx Xxxxxxx, Xx.,
President
0000 XX 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
-- and -
Florida Gaming Centers, Inc.,
Attn: Xxx Xxxxxxxxx,
General Manager
0000 XX 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
With copies to: R. Xxxxx Xxxxxx, Esquire
Counsel to Miami Xxx Xxxx
Xxxxx Xxxxx Xxxx LLC
000 Xxxx Xxxxxx Xxxxxx, 00xx
Xxxxxxxxxx, Xxxxxxxx 00000
-- and -
Xxxx X. Xxxxx, Esquire
Counsel to Summer Jai-Alai
Holland & Knight LLP
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Section 10. 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.
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Section 11. Indemnification
The PARI-MUTUEL agrees to indemnify, protect and hold harmless the COUNTY,
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 COUNTY, 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 the PARI-MUTUEL 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
COUNTY 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
COUNTY, its agents or employees may become liable. Upon request of the COUNTY,
the PARI-MUTUEL shall undertake to defend, at its sole cost and expense, any and
all suits brought against the COUNTY in connection with the matters specified in
this Section, in the event such suit is solely caused by the negligence by the
PARI-MUTUEL or its agents, employees, officers or contractors. PARI-MUTUEL shall
have the right to cooperate in the defense, including the selection of private
counsel, if any, at its sole cost and expense, against any suit, action, claim,
demand, damage, loss, penalty or fine made by any party to this Agreement or any
third party that could reasonably and forseeably result in a material adverse
impact on the amount of Gross Slot Revenues generated or capable of being
generated at the PARI-MUTUEL, provided however that nothing contained herein
shall limit the COUNTY's right to direct the defense.
Section 12. 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
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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 Miami, Miami-Dade
County, Florida. In addition to any other legal rights, the COUNTY and the
PARI-MUTUEL FACILITY shall each have the right to specific performance of this
Agreement in court.
Section 13. Voluntary Payment
The PARI-MUTUEL and the COUNTY each agree that in the event all or any
part of this Agreement is struck down by judicial proceeding or preempted by
legislative action, the PARI-MUTUEL and the COUNTY shall continue to honor the
terms and conditions of this Agreement to the extent allowed by law.
Section 14.- 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 15. Compliance with Applicable Laws
Throughout the Term of this Agreement, the PARI-MUTUEL shall comply with
all Applicable Laws.
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Section 16. Nuisance
The PARI-MUTUEL shall not commit any nuisance or do or permit to be done
anything that may result in the creation or commission of a nuisance in or
around the PARI-MUTUEL FACILITIES.
Section 17. 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 18. 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 19. 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 20. Events of Default
(a) The PARI-MUTUEL shall be in default under this Agreement if any of
the following events occur and continue beyond the applicable grace
period:
(i) The PARI-MUTUEL fails to comply timely with any payment
obligation which is not cured within fifteen (15) days from
PARI-MUTUEL failure to meet such payment obligation.
(ii) The PARI-MUTUEL fails to perform or breaches any term,
covenant, or condition of this Agreement which is not cured
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within thirty (30) days after receipt of written notice from
the COUNTY specifying the nature of such breach; provided,
however, that if such breach cannot reasonably be cured within
thirty (30) days, then the PARI-MUTUEL 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 the PARI-MUTUEL shall be adjudicated bankrupt, or if the
PARI-MUTUEL shall make a general assignment for the benefit of
creditors, or if in any proceeding based upon the insolvency
of the PARI-MUTUEL are commenced and not dismissed within 60
days of filing or a receiver is appointed for all the property
of the PARI-MUTUEL which is not dismissed within 60 days of
such appointment.
(b) The COUNTY shall be in default under this Agreement if the COUNTY
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 a PARI-MUTUEL specifying the
nature of such breach; provided, however, that if such breach cannot
reasonably be cured within thirty (30) days, the COUNTY 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.
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Section 21. Remedies Upon Default
Upon the occurrence of a default by a PARI-MUTUEL under this Agreement not
cured within the applicable grace period, the PARI-MUTUEL and the COUNTY agree
that the COUNTY, in addition to any other rights provided by law, shall have the
right to be reimbursed from the bond set forth elsewhere in this Agreement and
shall have the right to impose a lien on the land on which the PARI-MUTUEL
Facility is located.
Section 22. Severability
If any term or provision of this Agreement or the application thereof to
any person or circumstance shall, to any extent, 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 23. Assignment and Transfer
This Agreement shall be binding on the PARI-MUTUEL and their heirs,
successors and assigns. The PARI-MUTUEL shall not assign this Agreement without
the prior written consent of the COUNTY, which shall not be unreasonably
withheld.
Section 24. 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
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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 25. Lack of Agency Relationship
Nothing contained herein shall be construed as establishing
an agency relationship between the COUNTY and the PARI-MUTUEL and neither the
PARI-MUTUEL nor its employees, agents, contractors, subsidiaries, divisions,
affiliates or guests shall be deemed agents, instrumentalities, employees, or
contractors of the COUNTY for any purpose hereunder, and the COUNTY, its
contractors, agents, and employees shall not be deemed contractors, agents, or
employees of the PARI-MUTUEL or its subsidiaries, divisions or affiliates.
Section 26. Non-Exclusivity
Nothing in this Agreement is intended to create any exclusive rights in
the PARI-MUTUEL to conduct slot machine operations within Miami-Dade County. In
the event that by operation of law other persons are authorized to conduct slot
operations within the County, then the County 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 the PARI-MUTUEL.
Section 27. Government Approvals
Notwithstanding any rights under this Agreement this Agreement shall not
bind the Miami-Dade Board of County Commissioners, the Zoning Appeals Board, the
Building Department, the Planning and Zoning Department, or any other department
or board of the County, including Community Councils, to agree to or grant any
zoning changes, permits or any other approvals.
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Section 28. Contemporaneous Contracts
The Parties acknowledge that the COUNTY is entering similar contracts with
the other two (2) Pari-Mutuels listed in the Whereas clauses above. The
Pari-Mutuels shall pay in full the Flat Fee Payment in the total amount of three
million, nine hundred ninety nine thousand, nine hundred ninety nine dollars
($3,999,999.00).
Section 29. Covenants.
The PARI-MUTUEL agrees to execute a Declaration of Covenants which shall
run with the land to ensure that the PARI-MUTUEL shall comply with the monetary
obligations of this Agreement and by any person or entity who purchases the
stock or assets of the PARI-MUTUEL and/or operates slot machines from the
PARI-MUTUEL's location. The declaration is attached and incorporated by
reference as Attachment A.
Section 30.
If the COUNTY 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 the
PARI-MUTUEL, then the COUNTY and the PARI-MUTUEL 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 COUNTY to
revise any term or condition of this Agreement.
Section 31. Covenant Not to Xxx
The PARI-MUTUEL 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
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provision of this Agreement or any payment, obligation under this Agreement,
including but not limited to the obligation of the PARI-MUTUEL to pay the Flat
Fee Payment to the COUNTY. This covenant shall be binding upon, and inure to,
the benefit of the parties, their successors, assigns, heirs, legal
representatives, and personal representatives.
Section 32. Right to Re-open
If Broward County reopens any of its agreements with PARI-MUTUEL
facilities related to the operation of slots in such facilities, and Broward
County negotiates terms and conditions in a new agreement that are more
favorable to Broward County than the terms and conditions of this Agreement are
to the COUNTY, then the COUNTY in its sole discretion shall have the right to
reopen this Agreement. In such event, the COUNTY and the PARI-MUTUEL agree to
renegotiate in good faith to modify the terms and conditions of this Agreement
so as to provide the COUNTY and the PARI-MUTUEL substantially similar terms and
conditions to those contained in the new Broward County agreement.
If any other county in the State of Florida enters an agreement with
a PARI-MUTUEL facility licensed under Chapter 550, Florida Statutes, related to
the operation of slots in such facility, and such agreement contains terms and
conditions that are more favorable to the other county than the terms and
conditions of this Agreement are to the COUNTY, then the COUNTY in its sole
discretion shall have the right to reopen this Agreement. In such event, the
COUNTY and the PARI-MUTUEL agree to reopen this Agreement and renegotiate in
good faith to modify the terms and conditions of this Agreement so as to provide
the COUNTY and the PARI-MUTUEL substantially similar terms and conditions to
those contained in the relevant agreement.
[Signature pages to follow.]
18
IN WITNESS WHEREOF, the COUNTY and the PARI-MUTUEL have caused this Agreement to
be duly executed.
MIAMI-DADE COUNTY, a political
subdivision of the State of Florida
ATTEST:
CLERK OF THE BOARD
By
--------------------------
Xxxxxx X. Xxxxxxx
County Manager
---------------------
Deputy Clerk
Approved as to form and
legal sufficiency:
By /s/ JMM
----------------------------
Assistant County Attorney
19
Witnesses (if partnership): FLORIDA GAMING CENTERS, INC., d/b/a
Miami Xxx Xxxx
By: /s/Xxxxxx X. Xxxxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President & General Manager
------------------
------------------
(Print Name)
------------------
------------------
(Print Name)
ATTEST:
------------------
------------------
Print Name of Secretary
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this day of January
2005 by XXXXXX X. XXXXXXXXX, as Vice President & General Manager of Florida
Gaming Centers, Inc.
-----------------------------------------
|XXXXXX XXXXXX, XX. |
|MY COMMISSION # DD 003566 |
|EXPIRES: March 20, 2005 |
|Bonded Thru Notary Public Underwriters |
-----------------------------------------
/s/ Xxxxxx Xxxxxx, Xx.
--------------------------------
Signature of Notary Public
--------------------------------
Print, Type or Stamp Commissioned
Name of Notary Public
Personally Known ________ OR Produced Identification ________
Type of Identification Produced______________________________
20
SUMMER JAI-ALAI PARTNERSHIP,
A Florida partnership,
By Its Operating Partner:
Witnesses (if partnership): FLORIDA GAMING CENTERS, INC., d/b/a
Miami Xxx Xxxx
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President & General Manager
------------------
------------------
(Print Name)
------------------
------------------
(Print Name)
ATTEST:
------------------
------------------
Print Name of Secretary
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this day of January
2005 by XXXXXX X. XXXXXXXXX, as Vice President & General Manager of Florida
Gaming Centers, Inc., the Operating Partner of Summer Jai-Alai partnership, a
Florida partnership.
-----------------------------------------
|XXXXXX XXXXXX, XX. |
|MY COMMISSION # DD 003566 |
|EXPIRES: March 20, 2005 |
|Bonded Thru Notary Public Underwriters |
-----------------------------------------
/s/ Xxxxxx Xxxxxx, Xx.
--------------------------------
Signature of Notary Public
--------------------------------
Print, Type or Stamp Commissioned
Name of Notary Public
Personally Known ________ OR Produced Identification ________
Type of Identification Produced______________________________
21
