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
Florida
Gaming
Centers,
Inc. d/b/a Miami Jai Alai, a Florida
corporation
("Miami Jai
Alai"),
and
Summer
Jai-Alai
partnership,
a
Florida
partnership
("Summer
Jai-Alai;" Miami Jai Alai 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
21001 N.W. 27th Avenue
Miami, FL. 33056
Flagler Greyhound Track
401 NW 38th Ct
Miami, FL 33126
Miami Jai-Alai Fronton
3500 NW 37th Ave
Miami, FL 33142
NOW,
THEREFORE,
in
consideration of the mutual covenants and agreements
hereinafter contained,
the parties hereto do and hereby mutually agree and bind
themselves as follows:
Section 1. RULES OF LEGAL CONSTRUCTION.
For all purposes of the Agreement, unless otherwise expressly
provided:
a)
A defined term has the meaning assigned to it;
b)
Words in the
singular
include
the
plural,
and
words in
plural
include the singular;
c)
A pronoun in one gender
includes
and
applies to other
genders as
well; and
d)
The terms "hereunder", "herein", "hereof', "hereto" and such
similar
terms shall refer to the instant
Agreement
in its entirety and not
to individual
sections or articles
e)
The
Parties
hereto
agree
that this
Agreement
shall not be more
strictly construed against either the 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.
"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
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
Stephen P. Clark Center
111 N. W. 151 Street, 26th Floor
Miami, Florida 33128
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.
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
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
Hundr
