HomeMy WebLinkAboutL-2 Resolution: Pari-MutuelCity of ~Vliami ~ard~ens
1515-200 NW 167~' Street
Miami Gardens, Florida 33169
Date: December 12, 2007
Fiscal Impact: No Yes X
(If yes, explain in Staff Summary)
Funding Source: Building bond
Contract/P.O. Requirement: Yes X No^
Sponsor Name/Department:
Danny Crew, City Manager
Aqenda Cover Paqe
Mayor Shirley Gibson
Vice Mayor Oscar Braynon II
Councilman Melvin L. Bratton
Councilman Aaron Campbell Jr.
Councilwoman Sharon Pritchett
Councilwoman Barbara Watson
Councilman Andr~ Williams
Public hearing ^
Ordinance ^
1st Reading ^
Advertising requirement:
Title
Quasi-Judicial ^
Resolution X
2nd Reading ^
Yes No X
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MIAMI GARDENS,
FLORIDA, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AND
ATTEST, RESPECTIVELY, THAT CERTAIN AGREEMENT WITH CALDER RACE
COURSE, INC., FOR SLOT MACHINES AND PARI-MUTUEL FACILITIES, A COPY
OF WHICH IS ATTACHED HERETO AS EXHIBIT A; PROVIDING FOR
INSTRUCTIONS TO THE CITY CLERK; PROVIDING FOR THE ADOPTION OF
REPRESENTATIONS; PROVIDING AN EFFECTIVE DATE.
Staff Summary
Backqround
As City Council is aware, voters in the State of Florida approved a constitutional
amendment allowing the voters of Miami-Dade and Broward Counties to consider
approval of slot machines at various pari-mutuel facilities within those counties. One of
these facilities is Calder Race Course in Miami Gardens. This vote did not pass in 2005,
but is up for reconsideration in January, 2008.
Over the past several months, I have been meeting with members of the pari-mutual
industry to negotiate a"host" agreement in the event that the January 29th referendum
passes. While the City of Miami Gardens has taken no official position on this
referendum, its outcome is of importance to the City. If the referendum passes and
Calder installs slot machines, Miami Gardens will feel the impact of such action. In
order to protect the City and to ensure that the City will receive appropriate
compensation for the impact of such installation, the City and Calder have prepared a
contingent agreement which you have before you for consideration,
L-2) REGULAR AGENDA
Agreement with Calder Race Course
This agreement formalizes the promises made by the pari-mutel industry and defines
the roles of the Calder and the City. The agreement provides for the City to receive an
"impact" revenue form the operation of the machines equal to 1.5% of Calder's gross
revenues (total revenue less payouts). At the point that total revenue exceeds
$250,000,000, the City's percentage increases to 2.5% of gross revenue. As part of the
"impact", the City acknowledges that Calder is planning an expansion of their facilities,
and that development fees associated with this expansion are part of the impact. As
such, the agreement provides for an off-set for these fees. This is consistent with the
County's contract.
As indicated above, the contract is contingent of the outcome of the January 2gtn
countywide referendum. If the referendum does not pass, the agreement is null and
void. If it does pass, I believe the City's interests our protected by the agreement.
RECOMMENDATION: That City Council approve the proposed agreement befinreen
Calder Race Course and the City of Miami Gardens.
RESOLUTION No. 2007-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
MIAMI GARDENS, FLORIDA, AUTHORIZING THE MAYOR AND
CITY CLERK TO EXECUTE AND ATi'EST, RESPECTIVELY,
THAT CERTAIN AGREEMENT WITH CALDER RACE COURSE,
INC. FOR SLOT MACHINES AND PARI-MUTUEL FACILITIES, A
COPY OF WHICH IS ATTACHED HERETO AS EXHIBIT A;
PROVIDING FOR INSTRUCTIONS TO THE CITY CLERK;
PROVIDING FOR THE ADOPTION OF REPRESENTATIONS;
PROVIDING AN EFFECTIVE DATE.
1 WHEREAS, at the November 2, 2004, General Election, the electors of
2 the State of Florida voted to adopt an Amendment to the Florida Constitution
3 authorizing the etectors of Miami-Dade and Broward Counties to hold countywide
4 elections on whether to authorize slot machines in existing, licensed, Pari-mutuel
5 facilities that have conducted live racing or games in those Counties during each
6 of the last two calendar years before the effective date of the Amendment, and
7 WHEREAS, pursuant to a Resolution passed on July 10, 2007, the Miami-
8 Dade Board of County Commissioners called a Countywide Special Election to
9 be held by the County on Tuesday, January 29, 2008, (the "Special Election") for
10 the purpose of submitting to the qualified electors of the County, the question of
11 whether to authorize slot machines in certain existing, licensed, Pari-mutuel
12 facilities as provided in Article X, Section 23 of the Florida Constitution, and
13 WHEREAS, the City and Calder Race Course, Inc. ("Calder") recognize
14 that each of Calder's operations impacts the health and general welfare of the
15 residents of the City of Miami Gardens, and
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16 WHEREAS, the City and Calder recognize that the residents of the City of
17 Miami Gardens have legitimate concerns over increased development, traffic,
18 congestion, and the quality of life in the City, and
19 WHEREAS, in consideration of the City incurring additional costs of
20 administration and services, the City experiencing loss of revenues, and other
21 good and valuable consideration, Calder and the City have agreed to enter into
22 an Agreement whereby, if the January 29, 2008, referendum is approved, to
23 offset the additional traffic at or near Calder's facilities, and to accommodate the
24 increased traffic, and other impacts of the facility to the residents of the City of
25 Miami Gardens, the City of Miami Gardens shall be compensated at a rate of
26 1.7% of all gross slot revenues generated at Calder, and
27 WHEREAS, the parties would like to formalize that Agreement a facsimile
28 of which is attached hereto as Exhibit "A".
29 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
30 THE CITY OF MIAMI GARDENS, FLORIDA, as follows:
31 Section 1. ADOPTION OF REPRESENTATIONS: The foregoing
32 Whereas paragraphs are hereby ratified and confirmed as being true, and the
33 same are hereby made a specific part of this Resolution.
34 Section 2. AUTHORITY: The Mayor and City Clerk are herby
35 authorized and directed to execute and attest, respectively, that certain
36 Agreement with Calder Race Course, Inc. for supplemental compensation for
37 extended municipal services regarding slot machines and Pari-mutuel facilities, a
38 copy of which is attached hereto as Exhibit "A".
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39 Section 3. INSTRUCTIONS TO THE CITY CLERK: The City Clerk is
40 hereby authorized to obtain three (3) fully executed copies of the subject
41 Agreement, with one to be maintained by the City; with one to be delivered to
42 Calder Race Course, Inc., and with one to be directed to the Office of City
43 Attorney.
44 Section 4. EFFECTIVE DATE: This Resolution shall take effect
45 immediately upon its final passage.
46 PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF
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MIAMI GARDENS AT ITS REGULAR MEETING HELD ON DECEMBER 12,
2007.
SHIRLEY GIBSON, MAYOR
ATTEST:
RONETTA TAYLOR, CMC, CITY CLERK
Prepared by SONJA K. DICKENS, City Attorney
SPONSORED BY: DANNY O. CREW, CITY MANAGER
MOVED BY:
VOTE:
Mayor Shirley Gibson
Vice Mayor Barbara Watson
Councilman Melvin L. Bratton
Councilman Aaron Campbell
Councilman Andre Williams
Councilwoman Sharon Pritchett
Councilman Oscar Braynon, II
(Yes) (No)
(Yes) (No)
(Yes) (No)
(Yes) (No)
(Yes) (No)
(Yes) (No)
(Yes) (No)
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~.X h,~,T f~
AGREEMENT BETWEEN CALDER RACE COURSE, INC. AND CITY OF MIAMI
GARDENS FOR SUPPLEMENTAL COMPENSATION FOR EXTENDED
MUNICIPAL SERVICES REGARDING SLOT MACHINES IN PARI-MUTUEL
FACILITIES
THIS AGREEMENT is entered this _ day of August 2007, by and between
CALDER RACE COURSE, INC., a Florida corporation (hereinafter referred to as
"CALDER"), and CITY OF MIAMI GARDENS, FLORIDA, (hereinafter referred to as
the "CITY").
WITNESSETH:
WHEREAS, at the November 2, 2004, general election, the electors of the State
of Florida voted to adopt an amendment to the Florida Constitution authorizing the
electors of Miami-Dade and Broward Counties to hold county-wide elections on whether
to authorize slot machines in existing, licensed pari-mutuel facilities that have conducted
live racing or games in that county during each of the last two calendar years before the
effective date of the amendment. Article X, Section 19 of the Florida Constitution; and
WHEREAS, pursuant to a resolution passed on July 10, 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 the County the question of whether to authorize
slot machines in certain existing, licensed pari-mutuel facilities as provided in Article X,
section 19; and
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 at
the Calder Race Course pari-mutuel facility located in City of Miami Gardens, Florida;
and
WHEREAS, the CITY and CALDER recognize that CALDER's operations
impact the health and general welfare of the residents of City of Miami Gardens; and
WHEREAS, the CITY and CALDER recognize that the residents of City of
Miami Gardens have legitimate concerns over increased development, traffic, congestion,
and the quality of life in City of Miami Gardens; and
WHEREAS, CALDER 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 CALDER's slot machine
operations in City of Miami Gardens; and
WHEREAS, CALDER acknowledges that if the January 29, 2008, Referendum is
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approved, the CITY may incur additional costs of administration and services, losses of
revenues, upfront and start-up expenses including, but not limited to, expenses related to
planning and developing roads, traffic signals and sign improvements to handle
additional traffic at and near CALDER's facilities, forecasting and planning necessary
enhancements to the rail and bus transit system on routes to and from CALDER's
facilities, planning and development of additional infrastructure needs to accommodate
increased tourist traffic resulting from the presence of slot machines in the CITY,
planning and development of a coordinated marketing and promotional campaign related
to having slot machines in the CITY, and/or studying new economic development
opportunities, such as hotel and resort complexes, retail centers and restaurants, presented
by having slot machines in the CITY,
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the legal sufficiency of which is hereby acknowledged, the parties
hereto agree 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", "hereofl', "hereto" and such similar
terms shall refer to the instant Agreement in its entirety and not to
individual sections or articles
e) This Agreement shall not be more strictly construed against either the
CITY or CALDER.
fl The WHEREAS clauses set forth above shall be deemed incorporated
herein.
g) All exhibits and appendices attached hereto shall be deemed incorporated
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herein.
Section 2. Definitions As used herein:
"Agreement" means this Agreement between the CITY and CALDER.
"A~plicable Laws" means those applicable federal, state or local laws, rules,
regulations, codes, ardinances, resolutions, administrative orders,
schedules, permits, decrees, tariffs, policies and procedures and orders
which govern or relate to the respective Parties' obligations and
performances under this Agreement, all as they may be amended from
time to time.
"CITY" means City of Miami Gardens, and all departments, agencies and
instrumentalities thereof.
"Effective Date" shall have the meaning set forth in Section 3 hereof.
"Fiscal Year" means the CITY'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 CALDER FACILITY, less payouts to and credits
redeemed by players at the CALDER FACILITY.
"Pari-Mutuel Facilitv" means the premises at which CALDER operates as
described in the Thoroughbred Racing Permit issued to Calder Race
Course, Inc. by Division of Pari-Mutuel Wagering pursuant to Chapter
550, F.S. (See Exhibit "A").
"CALDER Fiscal Year" means CALDER's fiscal year, which ends on December
31 of each calendar year.
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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
(a) This Agreement shall only be effective if the qualified electors of Miami-
Dade County vote to approve the question of whether to authorize slot machines in
certain existing, licensed pari-mutuel facilities as provided in Amendment 4, and upon
certification of the election results by the Supervisor of Elections.
(b) This Agreement shall remain in effect for a term of thirty (30) years and
shall be automatically renewed for successive thirty (30) year terms, unless the CITY
sends to CALDER 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.
(c) This Agreement shall terminate immediately at the earliest of such time
that (1) the voters do not approve by majority vote the issue of whether to permit slot
machines in Miami-Dade County or (2) any vote approving such issue is overturned or
held invalid (following the expiration of all appeals), which shall each or collectively be
referred to as an (`Bvent of Early Termination")
Section 4. Compensation
Beginning on the date that any slot machines are operating, and continuing
through the term of the Agreement, CALDER agrees to pay the CITY a monthly amount,
in arrears, equal to one and five tenths percent (1.50 %) of Gross Slot Revenues
generated at CALDER (the "Monthly Percentage Payment"). The Monthly Percentage
Payment shall become due and payable in the amount calculated pursuant to the
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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
annual amount of any percentage payments on Gross Slot Revenues paid by CALDER to
the CITY. CALDER shall, on an annual basis, within sixty (60) days following the
conclusion of CALDER's fiscal year, pay to the CITY 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
CITY from the operation of Slot Machines at CALDER for the preceding CALDER
fiscal year (the "Annual Sliding Scale" Percentage Payment) after giving credit to
CALDER for the Monthly Percentage Payments already made to the CITY for such fiscal
year. Such Annual Sliding Scale shall be calculated at:
Two and one-half percent (2.50%) of the Gross Slot
Revenues in excess of $250 million.
CALDER shall submit payment of the percentage by corporate check made
payable to the CITY by delivery to the following address:
City Manager
City of Miami Gardens
1515 NW 167th Street
Building 5; Suite 200
Miami Gardens, Florida 33169
Together with each payment, CALDER shall submit to the CITY an accounting
of the operation of the slot machines and the computation of the fee.
Example Number 1.
During CALDER's fiscal year, the Gross Slot Machine Revenues are $170
million. The amount due to the CITY will be $2,890,000.00 ($170 million x.017)
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Example Number 2.
During CALDER's fiscal year, the Gross Slot Machine Revenues are $255
million. The amount due to the CITY will be:
(1) $4,250,000.00 ($250 million x .017); plus
(2) $125,000.00 ($5 million x .025)
For a total of $4,375,000.00, of which $125,000.00 will be paid within sixty (60)
days of the end of CALDER's fiscal year.
Section 5. Re u~ latorv Cost Reimbursement.
If the Florida Legislature passes any law establishing an affirmative obligation on
the part of the CITY to regulate slot machine operations, CALDER agrees to reimburse
the CITY for one-third of any costs to the CITY attributable to such a law.
Section 6. Auditin~.
The CITY shall have the right to audit the books, records, and accounts of
CALDER 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 CITY pursuant to this Agreement, including the accurate reporting of
Gross Slot Revenues and the determination of Gross Slot Revenues Payment under this
Agreement. CALDER shall keep such books, records, and accounts, consistent with
generally accepted accounting standards and principles, 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 CALDER relating to Gross Slot Revenues shall be kept
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in written form, or in a form capable of conversion into written form within a reasonable
time, and upon reasonable request to do so, CALDER shall make same available at no
cost to CITY. Certified Audited financial statements of CALDER which details the
amount of annual Gross Slot Revenues shall be provided to the CITY within four (4)
months of the end of each fiscal year of CALDER.
CALDER shall preserve and make available, at reasonable times 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 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 CALDER's
records relating to Gross Slot Revenues, CALDER shall comply with all requirements
thereof; however, no confidentiality or non-disclosure requirement of either federal or
state law shall be violated by the CITY or CALDER Any failure to make payments in
excess of Two Hundred Thousand and 00/100 ($200,000.00) of cumulative, annual
payments that should have been made to the CITY in each CALDER fiscal year shall
permit the CITY to charge 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 until the
amount owed has been paid. Any underpayment shall be paid by CALDER to the CITY
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within ten (10) days of notice of the audit finding, including interest and the
administrative fee, if applicable. In addition, in the event of an underpayment CALDER
shall immediately reimburse the CITY for all direct and indirect costs of the CITY's
audit.
Section 7. Fees. CALDER shall pay all building, zoning, permit, and impact
fees as may be required pursuant to the Code of City of Miami Gardens and other
Applicable Laws, as such fees become due and payable. After any such payment,
CALDER shall be entitled to deduct from the Monthly Percentage Payment in the
subsequent months, an amount equal to the amount in fees that CALDER has paid to the
CITY for square footage used for the operation or support of slot machines including but
not limited, to building renovations or expansions, construction of parking garages or
other modifications to the Pari-Mutuel Facility. Said credit shall not exceed 50% of the
Monthly Percentage Payment for any given month. CALDER shall also be entitled to a
credit against fees assessed by the CITY as set forth in the Code of City of Miami
Gardens for the administrative processing and review of applications for development
permits for square footage used for the operation or support of slot machines submitted to
City of Miami Gardens for review and approval.
Notwithstanding anything herein to the contrary, this section shall not apply to the
construction or renovation of any square footage of buildings on the CALDER
FACILITY not used for or in support of slot machines, including but not limited to
hotels, restaurant, retail uses, or commercial uses.
The final determination of whether or not square footage is used for or in support
of slot machines shall be left to the CITY, after consultation with CALDER. The CITY
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shall have the right to reject any claim for a credit(s) made by CALDER pursuant to this
provision, which rejection shall not be unreasonably exercised.
CALDER acknowledges if it is required to obtain CITY business receipt(s) fees
related to slot machines or slot machine operations from the City of Miami Gardens
during the term of this Agreement, CALDER shall pay such fees, but shall be entitled to
credit for such fees as provided in this Section 7.
CALDER agrees that if it is in an area designated as a Miami-Dade County
Enterprise Zone and, is eligible for waivers or abatements in real property and personal
property taxes, it will not file for, nor seek, such waivers or abatements. In the event
that any waiver, abatement or rebate is granted, from any source whatsoever, CALDER
shall pay the CITY with supplemental compensation equal to revenue the CITY would
have received but for such waiver, abatement or rebate.
Section 8. Bond and assignment of revenues.
Within thirty (30) days following the commencement of slot machine operations
at CALDER, CALDER shall provide a bond or irrevocable letter of credit in the amount
of $100,000.00 to the CITY to secure the obligations of CALDER under this Agreement.
CALDER 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 City Council agrees to waive or modify the requirements
of this section based upon satisfactory payment history by CALDER.
CPrtinn 9 NntirPc
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
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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: City of Miami Gardens
Attn: City Manager
1515 NW 167t" Street
Building 5; Suite 200
Miami Gardens, Florida 33169
Sonja K. Dickens, Esquire
Arnstein & Lehr
200 East Las Olas Blvd., Suite 1700
Fort Lauderdale, Florida 33301
To CALDER: Calder Race Course, Inc.
Attn: C. Kenneth Dunn, President
21001 NW 27th Avenue
Miami, Florida 33056
With copies to: Rebecca Reed, Esquire
Churchill Downs, Inc.
700 Central Avenue
Louisville, Kentucky 40208
- and-
Wilbur E. Brewton, Esquire
Roetzel & Andress, LPA
225 South Adams Street
Suite 250
Tallahassee, Florida 32301
Counsel to Calder Race Course, Inc.
Section 10. A~reement Not a Lease
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It is agreed that this Agreement is not a lease, arni that no interest or estate in, or
lien on, real property or improvements is created by this Agreement.
Section 1 l.
Indemnification
CALDER 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 of or intentional misconduct of CALDER 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, CALDER 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 CALDER or its agents,
employees, officers or contractors. CALDER 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 CALDER, provided however that nothing contained herein shall limit
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the CITY'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 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 and venue for any such actions shall lie
exclusively in a court of competent jurisdiction in Miami-Dade County, Florida.
Section 13. 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 14. Compliance with Ap~licable Laws
Throughout the Term of this Agreement, CALDER shall comply with all
Applicable Laws.
Section 15. 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
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obligation of such party, enforceable in accordance with its terms.
Section 16. 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 17. 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 18. Events of Default
(a) CALDER shall be in default under this Agreement if any of the following
events occur and continue beyond the applicable grace period:
(i) CALDER fails to comply timely with any payment obligation
which is not cured within fifteen (15) days from CALDER's
failure to meet such payment obligation.
(ii) CALDER 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 CALDER
shall not be in default if it commences to cure such breach within
said thirty (30) day period and diligently prosecutes such cure to
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completion.
(iii) If CALDER shall be adjudicated bankrupt, or if CALDER shall
make a general assignment for the benefit of creditors, or if in any
proceeding based upon the insolvency of CALDER are
commenced and not dismissed within 60 days of filing or a
receiver is appointed for all the property of CALDER 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 CALDER specifying the nature of such breach; provided,
however, that if such breach cannot reasonably be cured within thirty (30)
days, the CITY shall not be in default if it commences to cure such breach
within said thirty (30) day period and diligently prosecutes such cure to
completion.
Section 20. Remedies Upon Default
Upon the occurrence of a default by CALDER under this Agreement which is not
cured within the applicable grace period, CALDER and the CITY agree that the CITY, in
addition to any other rights provided by law, shall have the right to be reimbursed from
the bond set forth in Section 8 of this Agreement.
Section 21. Severabilitv
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
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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 22. Assi~nment and Transfer
This Agreement shall be binding on CALDER and their heirs, successors and
assigns. CALDER shall not assign this Agreement without the prior written consent of
the CITY, which shall not be unreasonably withheld.
Section 23. Obligations Survivi~~ 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 24. Lack of A~encv Relationshi~
Nothing contained herein shall be construed as establishing an agency relationship
between the CITY and CALDER and neither CALDER 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
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the CITY,. its contractors, agents, and employees shall not be deemed contractors, agents,
or employees of CALDER or its subsidiaries, divisions or affiliates.
Section 25. Non-Exclusivitv
Nothing in this Agreement is intended to create any exclusive rights in CALDER
to conduct slot machine operations within City of Miami Gardens. In the event that by
operation of law other persons are authorized to conduct slot operations within the CITY,
then the CITY may permit, authorize and regulate such business and may enter into
contracts to the same or similar effect as contemplated by this Agreement without
incurring any liability, contractual or otherwise, to CALDER.
Section 26. Government Approvals
Notwithstanding any rights under this Agreement this Agreement shall not bind
the Miami Gardens City Council, the Zoning Appeals Board, the Building Department,
the Planning and Zoning Department, or any other department or board of the CITY, to
agree to or grant any zoning changes, permits or any other approvals.
Section 27.
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 CALDER, then the CITY
and CALDER agree to negotiate in good faith to revise the terms and conditions of this
Agreement. By exception, the CITY shall have no good faith obligation in the event the
CITY's affirmative action is mandated by 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.
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Section 28. Covenant Not to Sue
CALDER 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 29. Cooperation and Time is of the Essence
The Parties agree to cooperate with each other to the full extent practicable
pursuant to the terms and conditions of this Agreement. The Parties agree that time is of
the essence in all aspects of their respective and mutual responsibilities pursuant to this
Agreement. The Parties agree to work together, to the extent practicable and allowed by
Law, towards the goal of maximizing the Gross Slot Revenues generated at CALDER's
Pari-Mutuel Facility at the earliest possible time.
IN WITNESS WHEREOF, the CITY and CALDER have caused this Agreement
to be duly executed.
ATTEST:
CITY CLERK
Ronetta Taylor
CITY OF MIAMI GARDENS
By.
Shirley Gibson, Mayor
Approved as to form and
legal sufficiency:
By
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James C. Brady, Assistant City Attorney
Witnesses:
(Print Name)
(Print Name)
ATTEST:
Rebecca Reed, Secretary
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
CALDER RACE COURSE,INC.
By
C. Kenneth Dunn, President
21001 NW 27th Avenue
Miami, Florida 33056
The foregoing instrument was acknowledged before me this _day of August
2007, by C. KENNETH DUNN, as President for Calder Race Course, Inc.
Signature of Notary Public
Print, Type or Stamp Commissioned
Name of Notary Public
Personally Known OR Produced Identification
Type of Identification Produced
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