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Jai alai staff report and exhibit b
 

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    Jai alai staff report and exhibit b Jai alai staff report and exhibit b Document Transcript

    • AMENDED AND RESTATED DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF DANIA BEACH FLORIDA AND DANIA ENTERTAINMENT CENTER, LLC (DRAFT 8/19/11) THIS AMENDED AND RESTATED DEVELOPMENT AGREEMENT (the “AmendedAgreement”), is made and entered into as of the ___ day of ________, 2011, by and betweenDANIA ENTERTAINMENT CENTER, LLC, a Delaware limited liability corporation (DEC”)and the CITY OF DANIA BEACH, a Florida municipal corporation, (“City”).WITNESSETH: WHEREAS, The Aragon Group Inc. D/B/A Dania Jai Alai, A Division of The AragonGroup Inc. (“Aragon”) owns real property located in the City of Dania Beach, Florida, the legaldescription of which is attached hereto and made a part hereof as Exhibit “A” (the “Property”);and WHEREAS, City and Aragon entered into that certain Development Agreement datedNovember 14, 2006 (the “Initial Development Agreement”); and WHEREAS, City and Aragon entered into that certain “Amendment to DevelopmentAgreement”) dated June 14, 2007 (the “1st Amendment”); and WHEREAS, the Property includes the pari-mutuel facility known as Dania Jai Alai,which presently consists of a structure which is approximately 225,000 gross square feet in sizeand is currently the location of jai alai performances, accessory commercial and retail uses, andsurface parking area; andFTL 108,310,938v6 8-18-11
    • WHEREAS, the remainder of the Property is undeveloped; and WHEREAS, DEC is the contract purchaser of the Property and intends to renovate,expand and redevelop the Property as more particularly described below; and WHEREAS, the State of Florida Department of Business and Professional RegulationDivision of Pari-Mutuel Wagering in its letter dated July 26, 2011 attached hereto as Exhibit“B”, has confirmed that pari-mutuel wagering activity is authorized on any portion of theProperty, and this area of approval for pari-mutuel wagering shall hereinafter be referred to asthe “Pari-Mutuel Facility”; and WHEREAS, DEC has filed an application with the State of Florida, Department ofBusiness and Professional Regulation, Division of Pari-Mutuel Wagering (the “Division”) forownership approval of the pari-mutuel permits and licenses (the “Gaming Licenses”) operated atthe Pari-Mutuel Facility; and WHEREAS, pursuant to Article X, Section 23 of the Florida Constitution, slot machinesare authorized to be operated on four existing licensed pari-mutuel facilities in Broward County;and WHEREAS, pursuant to Resolution No. 2005-26, adopted January 18, 2005, the Board ofCounty Commissioners of Broward County, Florida, approved and authorized a county-widespecial election to be held on Tuesday, March 8, 2005 (“Special Election”) for the purpose ofsubmitting to the qualified electors of Broward County the question of whether to authorize slotmachines in existing, licensed, pari-mutuel facilities as provided in Article X, Section 23 of theFlorida Constitution (“Referendum”); and 2FTL 108,310,938v6 8-18-11
    • WHEREAS, the Referendum was adopted by a majority of the qualified electorate votingin the Special Election and, therefore, slot machines are authorized to operate on the developedportion of the Property; and WHEREAS, Broward County entered into an Agreement with Aragon and each of theother Broward County pari-mutuel facilities, the effective date of which is January 25, 2005,which agreement provides, among other things, that it was entered into as a good faith concertedand negotiated effort on the part of County and Aragon to achieve a positive and constructiveresolution of significant issues that could negatively impact the development of pari-mutuelfacilities, that upon adoption of the Referendum the pari-mutuel facilities may be developed ormodified to incorporate slot machines and that the modification or redevelopment of the pari-mutuel facilities to include slot machines will further the public interests by providing economicstimulation and enabling redevelopment of the facilities and the geographic areas surroundingthe facilities; and WHEREAS, representatives of DEC and City have met on several occasions to reviewthe DEC plans for the construction of and expansion to the Pari-Mutuel Facility to consist of (i)renovation and expansion of the existing building to construct a building of not more than325,000 gross square feet within which 2000 slot machines and other authorized gamingactivities may be conducted, as well as a Jai Alai Fronton and an auditorium use, (ii) accessoryretail and commercial uses, including the sale of alcoholic beverages, (iii) hotel and accessoryrecreation amenities, (iv) recreational marina with accessory marine related retail and restaurant,and (v) parking facilities for the aforesaid uses (hereinafter referred to as the “DEC CapitalImprovements”, “DEC Capital Improvement Uses” and “Pari-Mutuel Facility CapitalImprovements Commercial Use” (a subset of the “DEC Capital Improvements Uses” consisting 3FTL 108,310,938v6 8-18-11
    • of the proposed hotel, related accessory recreational amenities and recreational marina withaccessory marine related retail and restaurant), as depicted on the “DEC Capital ImprovementPlan”, attached hereto as Exhibit “C”); and WHEREAS, the DEC Capital Improvements may be developed as depicted on Exhibit“C” in phases as set forth below: Phase 1: Casino Expansion and Jai Alai Renovation (“Phase 1”) Phase 1A: Hotel (“Phase 1A”) Phase 1B: Marina and Marina Related Commercial (“Phase 1B”) WHEREAS, Section 550.155(2)(a) and (b), Florida Statutes (“Chapter 550”), a copy ofwhich is attached as Exhibit “D”, provides in pertinent part that a capital improvement proposedby a permit holder licensed under Chapter 550, to a pari-mutuel facility which existed on June23, 1981, and which (i) does not qualify as a development of regional impact (“DRI”) as definedin Section 380.06, Florida Statutes, and (ii) is contiguous to or within the existing pari-mutuelfacility site, which capital improvement requires, pursuant to any municipal ordinance, resolutionor regulation, the approval of the municipality wherein the permit holder conducts his businessoperations, shall receive approval unless the municipality is able to demonstrate that theproposed capital improvement presents a justifiable and immediate hazard to the health andsafety of municipal residents if the proposed capital improvement is constructed; and WHEREAS, the Pari-Mutuel Facility was in existence on June 23, 1981; and WHEREAS, on October 4, 2006, the State of Florida, Department of Community Affairs,issued BLIVR-11-2006-005, Final Order No.: DCA-06-BL-253 a binding letter of interpretationof vested rights and determined that the development as then proposed by Aragon was not a DRI;and the DEC Capital Improvements likewise are not subject to DRI review; and 4FTL 108,310,938v6 8-18-11
    • WHEREAS, DEC’s current plans for the Property present an opportunity to eliminate theneed to relocate the portion of Northeast Second Street dedicated pursuant to the Dania Jai AlaiPlat, recorded at Plat Book 177 Page 170 public records of Broward County, Florida (the “Plat”)and for Northeast Second Street vacated pursuant to Resolution No. 2007-081 to be rededicatedas a thoroughfare for local neighborhood traffic, as depicted on Exhibit “C” (the “DEC CapitalImprovement Plan”); and WHEREAS, in order to assure that Northeast Fourth Court not be constructed as a Cityroadway in the future, DEC has requested that this right of way be vacated; and WHEREAS, City desires to limit the impacts of the DEC Capital Improvements and DECCapital Improvements Uses; and WHEREAS, the City also seeks to assure that the potential development of adjacentproperty, including impacts related to the future expansion of the Pari-Mutuel Facility or tofuture development of the parcel currently owned by the Archdiocese of Miami, and described inExhibit “E” (“the Church Parcel”), are limited; and WHEREAS, City has reviewed (i) the DEC Capital Improvement Plan provided inExhibit “C” and (ii) the proposed vacation, abandonment and rededication of a portion ofNortheast Second Street; and has determined that the construction and operation of the DECCapital Improvements, as provided for in this Agreement will not present a justifiable andimmediate hazard to the health and safety of the residents of the City of Dania Beach pursuant toChapter 550; and WHEREAS, City finds that, if the Pari-Mutuel Facility includes the Church Parcel, thedevelopment of the Church Parcel must comply with the standards and requirements set forthherein; and 5FTL 108,310,938v6 8-18-11
    • WHEREAS, if DEC seeks to expand the Pari-Mutuel Facility to include the ChurchParcel, and develops it in compliance with the standards and requirements set forth herein, thevacation and abandonment of a portion of Northeast Fourth Court would not present a justifiableand immediate hazard to the health and safety of the residents of the City of Dania Beach; and WHEREAS, DEC, at its sole cost, shall pay for the construction of the improvementswhich are described in and depicted on the DEC Capital Improvement Plan; and WHEREAS, DEC and City desire to enter into this Amended Agreement in order toprovide for the process by which the DEC Capital Improvements shall be reviewed and buildingpermits issued for its construction; and WHEREAS, in anticipation of DEC taking title to the Property and authorizing thetransfer of the Gaming Licenses, and in consideration of the DEC Capital Improvement Plansubmitted by DEC and reviewed by City, the parties desire to amend and restate the InitialDevelopment Agreement and the 1st Amendment as hereinafter set forth. NOW, THEREFORE, in consideration of the mutual promises and agreements hereincontained and other good and valuable consideration, the adequacy of which is agreed upon,DEC and City agree as follows: 1. Incorporation of Whereas Clauses. The Whereas clauses of this Amended Agreement are true and correct and are incorporated into and made a part of this Agreement as specifically as if set forth herein. 2. Findings of Fact. The approval and execution of this Amended Agreement by City shall constitute a finding by City that: a. The construction of the DEC Capital Improvements as depicted on anddescribed in the DEC Capital Improvement Plan in Exhibit “C” will not present a justifiable and 6FTL 108,310,938v6 8-18-11
    • immediate hazard to the health and safety of the residents of the City of Dania Beach and,therefore, the DEC Capital Improvement Plan shall be processed and approved in accordancewith the provisions of Chapter 550 and the terms of this Amended Agreement. b. The DEC Capital Improvement Uses as depicted on and described in theDEC Capital Improvement Plan in Exhibit “C” are consistent with the goals, objectives andpolicies of City’s comprehensive plan and code of ordinances and regulations. c. The vacation, abandonment and relocation/rededication of a portion ofNortheast Second Street as depicted on the DEC Capital Improvement Plan (page A01 of Exhibit“C”) will improve traffic circulation and mitigate traffic impacts on the neighboring residentialareas. d. The vacation and abandonment of the right-of-way of Northeast FourthCourt which borders the eastern property line of the Property as depicted on the DEC CapitalImprovement Plan, if approved in accordance with Paragraph 6, is in the best interest of City andwill benefit the health, safety and welfare of its residents. e. The DEC Capital Improvement Plan satisfies the criteria established byChapter 550. Therefore, (i) the construction of the DEC Capital Improvements in accordancewith the DEC Capital Improvement Plan and in accordance with the terms of this AmendedAgreement will not present a justifiable and immediate hazard to the health and safety of theresidents of the City of Dania Beach and (ii) any contrary provisions contained in the City’sordinances or other regulations of the city notwithstanding, City shall issue building permits toDEC to construct the DEC Capital Improvements pursuant to Paragraph 4 of this AmendedAgreement. 7FTL 108,310,938v6 8-18-11
    • 3. Approvals Required. The structures, improvements and uses which may be introduced or constructed upon the Property shall be in accordance with those depicted in the DEC Capital Improvement Plan attached hereto as Exhibit “C” and incorporated into this Amended Agreement, unless the DEC Capital Improvement Plan and this Amended Agreement are amended after a public hearing held at a City Commission meeting to allow for a change to a structure, improvement or use identified in the DEC Capital Improvement Plan. The following City development orders must be obtained pursuant to the schedule set forth below. a. City acknowledges that in conjunction with the development included in Phase 1 of Exhibit “C” (page A01), DEC intends to seek vacation, abandonment and relocation of a portion of Northeast Second Street as dedicated by the Plat, and to rededicate the right of way for Northeast Second Street as depicted on Phase 1 of Exhibit “C” (page A01) as “the portion of Northeast Second Street currently vacated”. DEC shall file the application for the vacation, abandonment and relocation of a portion of Northeast Second Street as required by the City Code, and City shall expedite the review and consideration of the Application. This Amended Agreement authorizes DEC to file the Application. The resolution approving the vacation of the right of way of Northeast Second Street as dedicated by the Plat will provide that: (i) the vacation of Northeast Second Street as depicted on the Plat and DEC’s obligation to rededicate the right of way for Northeast Second Street as depicted on the DEC Capital Improvement Plan and in Phase 1 of Exhibit “C” (page A01) is subject to approval of the vacation of Northeast Second Street by Broward County to the extent approval by Broward County is required by law and (ii) the deed from DEC to the City rededicating the right of way of Northeast Second Street will include a reservation in favor of DEC as grantor of the requisite air 8FTL 108,310,938v6 8-18-11
    • rights for DEC to construct a parking structure over said portion of Northeast Second Street. b. Building permits for the development depicted in Exhibit “C”. c. Notwithstanding the foregoing, prior to the issuance of the building permits for the Phase 1A (hotel) and Phase 1B (marina related retail and restaurant) capital improvements as depicted in Exhibit “C,” DEC will present the proposed elevations, renderings, landscape plans and onsite circulation plans for such development to the City Commission at public hearing(s) for its review and approval in accordance with the standards set forth in Chapter 550 and this Agreement; provided further, the plans for Phase 1B will include information regarding the operations of the marina so that the parking needs for the marina can be fully understood by the parties. 4. Issuance of Building Permits. City shall approve the application for building permits and issue the building permits for the capital improvements depicted in Exhibit “C,” in accordance with the provisions of this Amended Agreement and the following conditions: a. The final construction plans shall be prepared by a registered professionalengineer and a licensed architect and shall be sealed by an engineer and architect both licensed inthe State of Florida (“DEC Capital Improvement Construction Plan”). The DEC CapitalImprovement Construction Plan which is submitted shall comply with the DEC CapitalImprovement Plan and the City’s water, sewer and fire safety requirements. The fire safetyrequirements include those set forth on Exhibit “F” attached hereto. In addition, the landscapematerial to be installed by DEC shall meet the standards and criteria set forth on Exhibit “C”, atpages L01, L02, L03, L04, L05 and L06. 9FTL 108,310,938v6 8-18-11
    • b. The DEC Capital Improvement Construction Plan shall be delivered toCity for review and determination of compliance with the Florida Building Code andAdministrative Chapter One, as applicable to Broward County. c. DEC intends to submit the DEC Capital Improvement Construction Plansin a series of construction permit plan sets (the “DEC Construction Plan Permit Sets”). City shalluse its best efforts to complete the review of each set of DEC Construction Plan Permit Sets notlater than thirty (30) days after the date of delivery of each set of construction permit plans. d. If each of the DEC Construction Plan Permit Sets complies with theFlorida Building Code and Administrative Chapter One, as applicable to Broward County, theDEC Capital Improvement Plan and the City’s water, sewer, drainage, and fire safetyrequirements, the City shall issue building permits for the DEC Capital Improvements. e. If any of the DEC Construction Plan Permit Sets does not comply with theFlorida Building Code, or Administrative Chapter One, as applicable to Broward County, or withthe DEC Capital Improvement Plan, or with the City’s water, sewer, drainage, and fire safetyrequirements, then City shall notify DEC in writing as to the reasons why such plans do notcomply. If the City provides such notice, DEC shall provide written notice to City not later thanthirty (30) days after its receipt of City notice that it will (i) as to issues related to the FloridaBuilding Code and Administrative Chapter One, either revise the DEC Construction Plan PermitSets in accordance with the City notice or apply for the applicable review of City’s decision and(ii) as to issues which are not related to the Florida Building Code and Administrative ChapterOne, either revise such DEC Construction Plan Permit Set(s) in accordance with the City noticeor submit the dispute to resolution as provided for in Paragraph 9 of this Agreement. 10FTL 108,310,938v6 8-18-11
    • f. DEC agrees that no buildings will be constructed upon the Property withinthe area identified on Exhibit “G” as “Minimum Neighborhood Buffer Area.” g. Prior to the issuance of any building permit, DEC shall pay a permit fee toCity in the amount established for a permit that cannot be classified under the City’s Schedule ofPermit Fees for Construction. h. Phase 1 includes various parking, landscape, specialized pavementand lighting improvements to Fronton Blvd. (the "Fronton Blvd. Improvements" depicted onpages L01, L02, L03, L04, and L06 of Exhibit “C”). DEC will dedicate any additional landsneeded to establish any new right of way to construct Fronton Blvd. as depicted on page A01 ofExhibit “C”. The Fronton Improvements depicted on pages L01, L02, L03, L04, L05 and L06of Exhibit “C” shall be constructed in accordance with applicable engineering standards and willbe completed prior to the issuance of the last final certificate of occupancy for Phase 1; provided,however, the on-street parking on Fronton Blvd. adjacent to Frost Park (the “Frost ParkParking”) will be completed prior to the issuance of the first final certificate of occupancy for thedevelopment included in Phase 1 (page A01, Exhibit “C”); however, in the event the completionof the Frost Park Parking is delayed by matters beyond DEC’s control, then the completion ofthe Frost Park Parking shall occur prior to the issuance of the last final certificate of occupancyfor Phase 1. The sixty (60) temporary parking spaces, to be provided to the public pursuant toparagraph 9d. below, shall continue to be available to the public until completion of the FrostPark Parking. Prior to the City’s acceptance of the Fronton Blvd. Improvements, City and DECwill enter into an appropriate maintenance agreement, in a form as approved by the CityAttorney, to provide for on-going maintenance by DEC of the Fronton Blvd. Improvements fromthe intersection of Fronton Blvd. and Dania Beach Blvd. north to a point approximately 538 feet 11FTL 108,310,938v6 8-18-11
    • south of the intersection of Fronton Blvd. and Northeast Second Street measured from thecenterline of Fronton Blvd. and Northeast Second Street, such that the City shall continue to beresponsible for the ongoing maintenance of that portion of Fronton Blvd. adjacent to Frost Park.Notwithstanding the foregoing, City has agreed to obtain the necessary approvals from BrowardCounty for the proposed crosswalks within the Fronton Blvd. Improvements. DEC will providethe necessary plans for such approval to the City and the City will submit such plans to BrowardCounty and seek approval as expeditiously as possible. In the event the City is unable to obtainBroward County approval for these crosswalks within 45 days of submitting said plans to theCounty, DEC’s obligation to construct the Fronton Blvd. Improvements will be as follows: (i) the existing 90 degree parking on Fronton Blvd. adjacent to Frost Park willremain as is and DEC will have no further responsibility with respect to said parking; and (ii) DEC will submit a redesign for Fronton Blvd. which eliminates the proposedangled parking and provides the drive lanes and site access as depicted on Sheet A01. i. DEC agrees that the signage on the Property shall be of the size, location,character and method of illumination as depicted on the DEC Capital Improvement Plan. Signillumination for signs and site lighting on the Property shall not exceed five-tenths of a (0.5)horizontal foot-candle measured at grade level of residential use adjacent to the Property; thislimitation on illumination shall in be applicable to those signs and site lighting illuminatingdirectly onto Dania Beach Blvd. Additionally, no signage located within the Property shalldisplay advertising for any commercial establishment, merchandise, service or entertainmentwhich is not sold, produced or furnished on the Property nor shall display advertising for anycommercial establishment or entertainment on the Property which involves nudity. No signageshall incorporate technology which allows the emission of smoke, odor, lasers or sounds. 12FTL 108,310,938v6 8-18-11
    • Photometric plans will be submitted in connection with the appropriate DEC Construction PlanPermit Sets. Any LED signs will have automatic shutoff in the event of malfunction. j. Prior to the issuance of a certificate of occupancy for Phase 1, DEC shallcause the installation of a perimeter fence along the boundaries of those portions of the Propertynorth of Northeast Second Street (the “North Property Area”) with a minimum height of six (6)feet and entirely comprised of black vinyl coated material, subject to approval by BrowardCounty Environmental Protection Division, if required. In addition, in connection with theenvironmental permitting of Phase 1B, DEC will use its reasonable best efforts to have removalof all existing concrete slabs and related structures located within the North Property Area as partof the first phase of redevelopment of this portion of the Property. 5. Plat Note Amendment. The Plat for the Property included a Plat Note restrictingdevelopment of the Property as follows: “325,000 square feet of Gaming Facility which includes100,000 square feet of Casino, 1000 Seat Fronton and 187,000 square feet of AccessoryCommercial use on Parcel A; 54 Single Family Detached Units on Parcel B; and 1.159 Acres ofActive Park on Parcel C.” The City hereby authorizes the execution and issuance of the “NoObjection Letter” attached hereto as Exhibit “H,” amending the plat note on the Plat to read asfollows: Parcels A, B, and C of this Plat are restricted to 325,000 square feet of gaming facilitywhich includes a casino, a Jai Alai fronton and Accessory Commercial use within a singlebuilding, and 15 acres of Pari-Mutuel Facility Capital Improvements Commercial Use. Cityhereby confirms that development of Phases 1A and 1B do not require an allocation of use fromthe Dania Beach Regional Activity Center (“RAC”), consistent with the determination made bythe Executive Director of the Broward County Planning Council dated August 16, 2011, attachedhereto as Exhibit “I”. 13FTL 108,310,938v6 8-18-11
    • 6. Future Improvement of Church Parcel. The Property is bordered on the northeast by the “Church Parcel”. City acknowledges that DEC, or its successor or assign, may seek the vacation of Northeast Fourth Court in order to effectuate an expansion of the Pari-Mutuel Facility. In order to limit the impact of such expansion, DEC agrees any future development which it may undertake on the Church Parcel will include: (i) an amendment to this Amended Agreement pursuant to paragraph 3 hereof; (ii) the same size “Minimum Neighborhood Buffer Areas” as depicted on Exhibit “G” for the west boundary of the portion of the Property north of Northeast Second Street will be provided on the east and south boundary of the Church Parcel; and, (iii) the only access to the public right-of-way from the Church Parcel will be provided through the North Property Area to Northeast Second Street as depicted on Sheet A03 of Exhibit “C”, unless additional access to Northeast Second Street is approved by the city as part of the plan approval process for Phase 1B. Following City Commission approval of an appropriate amendment to this Amended Agreement regarding development of the Church Parcel, DEC may file an application for the vacation and abandonment of the right-of- way of Northeast Fourth Court in accordance with the City Code, and City shall process such application as expeditiously as possible. In the event DEC proceeds with development of Phase 1B and does not acquire the Church Property, the ten-foot (10’) setback on the east side of the marina as depicted on Sheet A03 of Exhibit “C” may be increased to a minimum setback as provided by the City Code for setbacks between marina use and the then applicable use of the Church Property, such modification will be made in connection with approval of the Phase 1B plans as provided in paragraph 3.c. above. 14FTL 108,310,938v6 8-18-11
    • 7. Construction Vehicle Management Plan. DEC and all contractors and subcontractors shall comply with the following requirements during construction of the DEC Capital Improvements: a. Construction vehicles shall be permitted to access (ingress and egress) the Property via East Dania Beach Blvd. only. b. DEC, and all contractors and subcontractors, shall take commercially reasonable precautions to protect, and shall not damage property adjacent to the Property, and shall be entirely responsible and liable for all damage or injury as a result of its operations to all adjacent public and private property. In the event that construction vehicle movement is determined to have resulted in damage to East Dania Beach Blvd. or Federal Highway, DEC shall complete repair of such damage to FDOT standards within sixty (60) days of notification of such damage by City. A License for Use of City Right-Of-Way and bond shall be provided as described in Subsection 9.i. 8. Operational Conditions. a. DEC agrees that all activities located within the Pool Deck depicted on the DEC Capital Improvement Plan (Exhibit “C”) shall comply with the applicable noise ordinances of the City. b. DEC agrees that all development within the Property shall comply with all applicable state and federal regulations. c. DEC agrees to provide a shuttle service which shall offer transport to and from Port Everglades and the Fort Lauderdale-Hollywood International Airport, which shall become operational no later than thirty (30) days following the issuance of a final certificate of occupancy for the development included in Phase 1. In addition, the DEC Construction Plans 15FTL 108,310,938v6 8-18-11
    • Permit Sets will include identification of a location where the City shuttle service can pick- up/drop-off passengers within the Property. d. DEC agrees that during all special events (defined herein to include concerts and other live performances, but not including Jai Alai play) held on the Property, anticipated to involve 1,000 or more attendees, DEC shall implement a City-approved Traffic Management Plan to minimize traffic impacts to surrounding residential neighborhoods, which shall include the provision of a minimum of one (1) off-duty police officer per 250 ticketed patrons, plus one (1) supervising officer should more than six (6) officers be required for a particular special event. The City-approved Traffic Management Plan shall be reviewed and approved annually by the City Manager or designee, and amended as necessary. e. DEC agrees that its operations may be subject to applicable City business tax receipt regulations or license fees as may be enacted by the City as part of the City’s business tax receipt schedule or Code of Ordinances; provided, however, in no event will both a gaming tax receipt and license fee be required and any such business tax receipt or license fee applicable to the Pari-mutuel Facility shall not exceed $262.50 per year for the facility and $52.50 per year per slot machine installed in the Pari-mutuel Facility; provided further, the aforesaid rates for the facility and the slot machines will not be increased unless and until Gross Slot Revenues from said slot machines reach Two Hundred Fifty Million Dollars ($250,000,000.00) on an annual basis, at which point and thereafter, any such increase will be governed by Section 205.0535, Florida Statutes. 9. DEC Additional Commitments. DEC agrees that in connection with development of the DEC Capital Improvements, they agree further as follows: 16FTL 108,310,938v6 8-18-11
    • a. DEC will hold a “Job Fair” for Dania Beach residents before beginning general hiring for each phase of the development. b. Subject to the approval of FDOT and or Broward County, as applicable, DEC will install, at its sole cost and expense, directional signage at the locations listed on Exhibit “J” attached hereto. c. In the event DEC does not have an identified casino/hotel operating partner(s) identified prior to the City approval of this Amended Agreement, DEC agrees that upon selection of its operating partner it will introduce its operating partner to the City at a public meeting, and that any operating partner selected by DEC will have operated at least five (5) casino and hotel developments in Las Vegas and/or other gaming jurisdictions in the United States and have a minimum of fifteen (15) years experience in the casino and hotel business. d. During construction of the Frost Park Parking Spaces on Fronton Blvd. in connection with the Fronton Blvd. Improvements, DEC and City will enter into a Temporary Use Agreement to permit public parking in not less than sixty (60) existing parking spaces in the northwest corner of the Property south of Northeast Second Street during such construction. e. Within 3 years of receipt of the last final certificate of occupancy for Phase 1,DEC will submit a parking study to the City evaluating whether the parking provided for the thenexisting development is sufficient to meet the needs of such development. Parking will bedeemed sufficient if the parking study reveals that, over a period of one (1) month within thepeak season in south Florida for tourism (December-April), average utilization of the parking ona peak hour peak day of operation (peak hour peak day to be determined by DEC during thecourse of its operations) is less than 90%. In the event the parking study reveals, or if at any time 17FTL 108,310,938v6 8-18-11
    • DEC determines in its sole discretion, that additional at grade or structured parking is needed,DEC will submit amendments to Exhibit “C” and process same pursuant to the procedure setforth in paragraph 3.c. above. Such structured parking may include a parking structure with amaximum height of 5 stories, to be constructed within the air rights reserved by DEC as providedin paragraph 3.a. above. f. In the event, the City has an agreement for re-use water of sufficient capacity to serve Phase 1 and funding for installation of the necessary transmission lines to bring such re-use water to the Property prior to DEC obtaining a permit for its onsite irrigation system, DEC will install “gray lines” as part of its irrigation system for Phase 1. g. Prior to the issuance of the last final certificate of occupancy for Phase 1A, DEC will install sidewalk at those portions of the public right of way adjacent to the Property where no sidewalk has been installed and will reimburse the City in an amount equal to the then cost to the City of installing sidewalk in those portions of the public right of way between Gulfstream Blvd. and the eastern edge of the Property, but in no event will DEC’s payment to the City for this sidewalk improvement exceed $50,000 [NOTE: amount proposed by City; to be reviewed and approved by applicant]. h. DEC agrees that the following uses will be prohibited upon the Property: (i) Adult book store/adult novelty store/adult video store; and (ii) Adult mini motion picture theater. These uses shall be defined as they are in Section 115-60 of the City of Dania Beach Land Development Code, the applicable excerpts from which are set forth in Exhibit “K” attached hereto. 18FTL 108,310,938v6 8-18-11
    • i. Prior to the issuance of a building permit for each phase of the developmentdepicted in Exhibit “C”, DEC, or its contractor, shall be required to obtain a License for Use ofCity Right-Of-Way By DEC Construction Vehicles. Prior to the approval of such license, DEC,or its contractor, shall provide a bond in an amount not to exceed $200,000.00, in a formapproved by the City Attorney, which shall provide security for the cost to repair any damagecaused to Dania Beach Boulevard and U.S. 1 within the City by construction vehicles serving thedevelopment of the DEC Capital Improvements. Provided, however, such License and bondshall include, but not be limited to, provisions for the City to provide evidence to DEC that anydamage for which repair is sought or an effort to have payment under the bond made was createdby construction vehicles serving the development of the DEC Capital Improvements and, sincemultiple phases of the development may occur at the same time, only one such bond will berequired at any given time during the construction of the DEC Capital Improvements. 10. DEC and City Cooperation in Evaluation and Mitigation of Unforeseen TrafficImpacts. DEC and City hereby acknowledge that, although DEC has submitted and the City’sconsultant has reviewed, a comprehensive traffic study reflecting that the impacts of the DECCapital Improvements do not present a justifiable and immediate hazard to the health and safetyof municipal residents, the parties agree that given the unique nature of the DEC CapitalImprovement Uses, it is advisable to evaluate traffic impacts once Phase 1 has been operating fora period of time. Therefore, DEC and City hereby agree that, within ninety (90) days of the third(3rd) anniversary of the date of issuance of the last final certificate of occupancy for Phase 1,DEC and City will select a traffic consultant, mutually acceptable to the parties, and undertake ajoint traffic analysis evaluating the level of service at the intersections of Stirling Road and U.S.1 and Dania Beach Blvd. and U.S. 1, to determine if alternative traffic management measures 19FTL 108,310,938v6 8-18-11
    • should be implemented (hereinafter referred to as the “Joint Traffic Analysis”). Such alternativetraffic management measures will include, but not limited to: intersection improvements, trafficsignalization re-timing, modification to existing traffic calming improvements, or trafficcirculation within the Property. The Joint Traffic Analysis will take into account the impacts ofdevelopment other than the DEC Capital Improvements which has occurred in the traffic impactarea, with a view toward clearly distinguishing the impacts of such other development fromthose of the DEC Capital Improvements. Any alternative traffic management measuresrecommended in the Joint Traffic Analysis will be presented to the City Commission at a publichearing for its review and approval. DEC’s participation in the Joint Traffic Analysis is in noway to be interpreted to in any way preclude DEC’s development of the DEC CapitalImprovements, or as creating an obligation on DEC to contribute any money to the cost ofimplementing any alternative traffic management measures, except for the following obligations:(i) DEC will pay for 50% of the cost of preparing the Joint Traffic Analysis and (ii) if thealternative traffic management measures include modifications to traffic circulation within theProperty, and such modifications are acceptable to DEC, DEC will be responsible for the costs ofsuch onsite traffic circulation modifications. Provided, however, in the event the CityCommission approves alternative traffic management measures as part of its review and approvalof the Joint Traffic Study and programs those improvements for a particular fiscal year, DECwill contribute its proportionate share based on trips (“DEC’s Traffic Contribution”) to the Cityupon such traffic management measure being let for contract; provided further, DEC’s TrafficContribution will be reduced by any amount paid to City pursuant to Section 4.1.5 of the“Agreement Among Broward County and The Aragon Group Inc. Regarding Operation of SlotMachines in a Parimutuel Facility” dated January 25, 2005, in the two consecutive fiscal years 20FTL 108,310,938v6 8-18-11
    • prior to the one in which the alternative traffic management measure is programmed forconstruction. [NOTE: This term is the language proposed by the applicant; it has beennegotiated, but has not yet been accepted by the City.] 11. Evaluation of Emergency Medical Services Impacts. DEC and City herebyacknowledge that, given the unique nature of the DEC Capital Improvement Uses and theassociated need for emergency medical services at peak times, it is advisable to provide foremergency medical services impacts. Therefore, DEC and City hereby agree that whenever atleast three (3) calls for emergency medical services were generated during a particular four (4)hour period in any four (4) consecutive weeks (“Peak Incident Event”), then DEC will contractwith Dania Beach BSO Fire Rescue to provide emergency medical services coverage during thatfour (4) hour period each week thereafter until no Peak Incident Event has occurred for 2consecutive months. DEC and City further agree to conduct at least one annual review anddiscussion of the sufficiency of emergency medical services for the DEC Capital Improvementsduring each calendar year, in order to ensure the continued adequacy of emergency medicalservices and whether the City has to expand its emergency medical services to accommodateservice demand increases directly attributable to the DEC Capital Improvements. Provided,however, in the event DEC contracts with Dania Beach BSO Fire Rescue on its own initiative,without a Peak Incident Event having occurred, then any emergency medical services soprovided do not contribute to the creation of a Peak Incident Event. [NOTE: This term is thelanguage proposed by the applicant; it has been negotiated, but has not yet been acceptedby the City.] 12. Dispute Resolution. Any dispute, controversy or claim between DEC and City arising-out of this Amended Agreement or a breach thereof shall be submitted to non-binding 21FTL 108,310,938v6 8-18-11
    • mediation prior to litigation. The mediator’s fees shall be paid equally by the parties. Any of the above proceedings shall be brought in Broward County and shall be conducted pursuant to Florida Statutes relating to mediation. Either party may call for mediation on any dispute, controversy or claim arising under this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. Venue of any action, whether state or federal, shall be in Broward County Circuit Court or the Federal District Court, Southern District of Florida. 13. Assignment. The City hereby acknowledges that pursuant to Paragraph 7.I. of the Initial Development Agreement, the City’s consent to the Assignment of the Initial Development Agreement shall become effective upon the City’s receipt of the final administrative order from the Division transferring the Gaming Licenses to DEC. 14. Miscellaneous. A. Entire Agreement. This Agreement sets forth all of the promises, covenants, agreements, conditions and understandings between the parties hereto, and supersedes all prior and contemporaneous agreements, understandings, inducements or conditions, express or implied, oral or written. B. Pronouns. All pronouns and any variances thereof shall be deemed torefer to the masculine, feminine and neuter, singular or plural, as the identity of the party orparties, personal representatives, successors or assigns may require. C. Severability. The invalidity of any provision hereof shall in no way affector invalidate the remainder of this Agreement. 22FTL 108,310,938v6 8-18-11
    • D. Counterpart. This Amended Agreement may be executed in one or morecounterparts, each of which shall be deemed an original, but all of which shall together constituteone and the same instrument E. Headings. The headings contained in this Amended Agreement areinserted for convenience only and shall not affect, in any way, the meaning or interpretation ofthe Amended Agreement. F. Governing Law. This Amended Agreement shall be construed inaccordance with the laws of the State of Florida, and any proceeding arising between the partiesin any manner pertaining to this Agreement shall, to the extent permitted by law, be held inBroward County, Florida. G. Joint Preparation. City and DEC agree that they have sought and receivedwhatever competent advice of counsel necessary for them to form a full and completeunderstanding of all rights and obligations herein and the preparation of this AmendedAgreement has been a joint effort. The language agreed to expresses their mutual intent and theresulting document shall not be construed more strictly against one of the parties than the other. H. Succession and Assignment. This Amended Agreement and interestherein shall be binding upon and shall inure to the benefit of any and all successors, assigns,heirs, legal representatives and personal representatives of any party hereto. Notwithstanding,DEC shall not assign this Amended Agreement without the written consent of the CityCommission, which consent shall not be unreasonably withheld and which consent shall begranted and deemed to have been given if the State of Florida, Department of Business andProfessional Regulation, authorizes the transfer of the Pari-Mutuel Facility’s permit to conduct 23FTL 108,310,938v6 8-18-11
    • pari-mutuel wagering and DEC shall provide written notice to City within five (5) days of such atransfer. 15. Effective Date. The effective date of this Amended Agreement shall be the datethe City receives written notice from DEC that it has obtained fee simple title to the Property. 16. Notice. All notices, requests, consents and other communication required orpermitted under this Amended Agreement shall be in writing and shall be (as selected by theperson giving such notice) hand-delivered by messenger or courier service, sent by facsimile, ormailed (airmail if international) by registered or certified mail (postage prepaid), return receiptrequested, addresses to: As to City: Mr. Robert Baldwin City Manager City of Dania Beach 100 W. Dania Beach Boulevard Dania Beach, Florida 33004 with a copy to: Thomas J. Ansbro, Esq. City Attorney 100 W. Dania Beach Boulevard Dania Beach, Florida 33004 As to Dania Entertainment Center Mr. Louis Birdman Dania Entertainment Center, LLC 425 N. Federal Highway Hallandale, Florida 33009 Debbie M. Orshefsky, Esq. Greenberg Traurig 401 E. Las Olas Blvd. Suite 2000 Fort Lauderdale, FL 33301 24FTL 108,310,938v6 8-18-11
    • [SIGNATURE PAGE FOLLOWS] 25FTL 108,310,938v6 8-18-11
    • WITNESS: CITY OF DANIA BEACH, a Florida municipal corporation By: Patricia Flury, Mayor[Witness type or print name] ___ day of ____________, 2011[Witness type or print name] By: Robert Baldwin, City Manager[Witness type or print name] ___ day of ____________, 2011[Witness type or print name]Approved as to form and legality by Office of the City Attorney By: Thomas J. Ansbro, Esq. ___ day of ____________, 2011(CITY SEAL) 26FTL 108,310,938v6 8-18-11
    • STATE OF FLORIDA )COUNTY OF BROWARD ) SS. The foregoing instrument was acknowledged before me this ___ day of ____________,2011, by PATRICIA FLURY, Mayor of the City of Dania Beach, a Florida municipalcorporation. She is personally known to me and did not take an oath. __ Notary Public, State of Florida (Signature of Notary) My Commission Expires: ___ Name of Notary Typed, Printed or StampedSTATE OF FLORIDA )COUNTY OF BROWARD ) SS. The foregoing instrument was acknowledged before me this ___ day of ____________,2011, by ROBERT BALDWIN, City Manager of the City of Dania Beach, a Florida municipalcorporation. She is personally known to me and did not take an oath. __ Notary Public, State of Florida (Signature of Notary) My Commission Expires: __ Name of Notary Typed, Printed or Stamped 27FTL 108,310,938v6 8-18-11
    • WITNESS: Dania Entertainment Center, LLC By: Name:[Witness type or print name] Its: ___ day of ____________, 2011[Witness type or print name]STATE OF FLORIDA )COUNTY OF BROWARD ) SS. The foregoing instrument was acknowledged before me this ___ day of ____________,2011, by __________________, ______________ of Dania Entertainment Center, LLC, a________________ limited liability corporation. He is personally known to me and did not takean oath. __ Notary Public, State of Florida (Signature of Notary) My Commission Expires: __ Name of Notary Typed, Printed or Stamped 28FTL 108,310,938v6 8-18-11
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