HomeMy WebLinkAboutR-2011-095 - Executed an Amended & Restated Development Agreement with Dania Entertainment Center, LLC pertaining to Jai Alai Complex RESOLUTION NO.2011-095
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA, AUTHORIZING THE PROPER CITY OFFICIALS TO
EXECUTE AN AMENDED AND RESTATED DEVELOPMENT
AGREEMENT WITH DANIA ENTERTAINMENT CENTER, LLC,
PERTAINING TO THE JAI ALAI COMPLEX; PROVIDING FOR
CONFLICTS; FURTHER, PROVIDING FOR AN EFFECTIVE DATE.
BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA
BEACH,FLORIDA:
Section 1. The proper City Officials are authorized to execute an Amended and
Restated Development Agreement with Dania Entertainment Center, LLC, pertaining to the Jai
Alai Complex. A copy of the Agreement is attached and it is incorporated into this Resolution
by this reference.
Section 2. The City Manager and City Attorney are authorized to make minor
revisions to the Agreement which are deemed necessary and proper and in the best interests of
the City.
Section 3. All resolutions or parts of resolutions in conflict with this Resolution are
repealed to the extent of such conflict.
PASSED AND ADOPTED on August 23, 2011.
PATRICIA A. FLURY
�PRp'S F1 . MAYOR
ATTEST:
LOUISE STILSON, C C
CITY CLERK '
APPROVED AS TO FO AND LEGALITY
THO AS SBR
CITY ATTORNEY
AMENDED AND RESTATED DEVELOPMENT AGREEMENT
BY AND BETWEEN THE CITY OF DANIA BEACH FLORIDA
AND
DANIA ENTERTAINMENT CENTER, LLC
THIS AMENDED AND RESTATED DEVELOPMENT AGREEMENT (the "Amended
Agreement"), is made and entered into as of the _ day of , 2011, by and
between DANIA 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 Aragon
Group Inc. ("Aragon") owns real property located in the City of Dania Beach, Florida, the legal
description 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 dated
November 14, 2006 (the"Initial Development Agreement"); and
WHEREAS, City and Aragon entered into that certain "Amendment to Development
Agreement") dated June 14, 2007 (the"1 st 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 size
and is currently the location of jai alai performances, accessory commercial and retail uses, and
surface parking area; and
WHEREAS, the remainder of the Property is undeveloped; and
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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 Regulation
Division 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 the
Property, and this area of approval for pari-mutuel wagering shall hereinafter be referred to as
the"Pari-Mutuel Facility"; and
WHEREAS, DEC has filed an application with the State of Florida, Department of
Business and Professional Regulation, Division of Pari-Mutuel Wagering (the "Division") for
ownership approval of the pari-mutuel permits and licenses (the "Gaming Licenses") operated at
the Pari-Mutuel Facility; and
WHEREAS, pursuant to Article X, Section 23 of the Florida Constitution, slot machines
are 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 of
County Commissioners of Broward County, Florida, approved and authorized a county-wide
special election to be held on Tuesday, March 8, 2005 ("Special Election") for the purpose of
submitting to the qualified electors of Broward County the question of whether to authorize slot
machines in existing, licensed, pari-mutuel facilities as provided in Article X, Section 23 of the
Florida Constitution("Referendum"); and
WHEREAS, the Referendum was adopted by a majority of the qualified electorate voting
in the Special Election and, therefore, slot machines are authorized to operate on the developed
portion of the Property; and
3 RESOLUTION#2011-095
WHEREAS, Broward County entered into an Agreement with Aragon and each of the
other 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 concerted
and negotiated effort on the part of County and Aragon to achieve a positive and constructive
resolution of significant issues that could negatively impact the development of pari-mutuel
facilities, that upon adoption of the Referendum the pari-mutuel facilities may be developed or
modified 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 economic
stimulation and enabling redevelopment of the facilities and the geographic areas surrounding
the facilities; and
WHEREAS, representatives of DEC and City have met on several occasions to review
the 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 than
325,000 gross square feet within which 2000 slot machines and other authorized gaming
activities may be conducted, as well as a Jai Alai Fronton and an auditorium use, (ii) accessory
retail and commercial uses, including the sale of alcoholic beverages, (iii) hotel and accessory
recreation 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 Capital
Improvements", "DEC Capital Improvement Uses" and "Pari-Mutuel Facility Capital
Improvements Commercial Use" (a subset of the "DEC Capital Improvements Uses" consisting
of the proposed hotel, related accessory recreational amenities and recreational marina with
accessory marine related retail and restaurant), as depicted on the "DEC Capital Improvement
Plan", attached hereto as Exhibit"C"); and
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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 I")
Phase 1 A: Hotel ("Phase IA")
Phase 1B: Marina and Marina Related Commercial ("Phase 1B")
WHEREAS, Section 550.155(2)(a) and (b), Florida Statutes ("Chapter 550"), a copy of
which is attached as Exhibit "D", provides in pertinent part that a capital improvement proposed
by a permit holder licensed under Chapter 550, to a pari-mutuel facility which existed on June
23, 1981, and which (i) does not qualify as a development of regional impact ("DRI") as defined
in Section 380.06, Florida Statutes, and (ii) is contiguous to or within the existing pari-mutuel
facility site, which capital improvement requires,pursuant to any municipal ordinance, resolution
or regulation, the approval of the municipality wherein the permit holder conducts his business
operations, shall receive approval unless the municipality is able to demonstrate that the
proposed capital improvement presents a justifiable and immediate hazard to the health and
safety 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 interpretation
of 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
WHEREAS, DEC's current plans for the Property present an opportunity to eliminate the
need to relocate the portion of Northeast Second Street dedicated pursuant to the Dania Jai Alai
Plat, recorded at Plat Book 177 Page 170 public records of Broward County, Florida (the "Plat")
5 RESOLUTION#2011-095
and for Northeast Second Street vacated pursuant to Resolution No. 2007-081 to be rededicated
as a thoroughfare for local neighborhood traffic, as depicted on Exhibit "C" (the "DEC Capital
Improvement Plan"); and
WHEREAS, in order to assure that Northeast Fourth Court not be constructed as a City
roadway 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 DEC
Capital Improvements Uses; and
WHEREAS, the City also seeks to assure that the potential development of adjacent
property, including impacts related to the future expansion of the Pari-Mutuel Facility or to
future development of the parcel currently owned by the Archdiocese of Miami, and described in
Exhibit"E" ("the Church Parcel'), are limited; and
WHEREAS, City has reviewed (i) the DEC Capital Improvement Plan provided in
Exhibit "C" and (ii) the proposed vacation, abandonment and rededication of a portion of
Northeast Second Street; and has determined that the construction and operation of the DEC
Capital Improvements, as provided for in this Agreement will not present a justifiable and
immediate hazard to the health and safety of the residents of the City of Dania Beach pursuant to
Chapter 550; and
WHEREAS, City finds that, if the Pari-Mutuel Facility includes the Church Parcel, the
development of the Church Parcel must comply with the standards and requirements set forth
herein; and
WHEREAS, if DEC seeks to expand the Pari-Mutuel Facility to include the Church
Parcel, and develops it in compliance with the standards and requirements set forth herein, the
RESOLUTION#2011-095
vacation and abandonment of a portion of Northeast Fourth Court would not present a justifiable
and 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 improvements
which 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 to
provide for the process by which the DEC Capital Improvements shall be reviewed and building
permits issued for its construction; and
WHEREAS, in anticipation of DEC taking title to the Property and authorizing the
transfer of the Gaming Licenses, and in consideration of the DEC Capital Improvement Plan
submitted by DEC and reviewed by City, the parties desire to amend and restate the Initial
Development Agreement and the 1 st Amendment as hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises and agreements herein
contained 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 and
described in the DEC Capital Improvement Plan in Exhibit "C"will not present a justifiable and
immediate hazard to the health and safety of the residents of the City of Dania Beach and,
7 RESOLUTION#2011-095
therefore, the DEC Capital Improvement Plan shall be processed and approved in accordance
with the provisions of Chapter 550 and the terms of this Amended Agreement.
b. The DEC Capital Improvement Uses as depicted on and described in the
DEC Capital Improvement Plan in Exhibit "C" are consistent with the goals, objectives and
policies of City's comprehensive plan and code of ordinances and regulations.
C. The vacation, abandonment and relocation/rededication of a portion of
Northeast 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 residential
areas.
d. The vacation and abandonment of the right-of-way of Northeast Fourth
Court which borders the eastern property line of the Property as depicted on the DEC Capital
Improvement Plan, if approved in accordance with Paragraph 6, is in the best interest of City and
will benefit the health, safety and welfare of its residents.
e. The DEC Capital Improvement Plan satisfies the criteria established by
Chapter 550. Therefore, (i) the construction of the DEC Capital Improvements in accordance
with the DEC Capital Improvement Plan and in accordance with the terms of this Amended
Agreement will not present a justifiable and immediate hazard to the health and safety of the
residents of the City of Dania Beach and (ii) any contrary provisions contained in the City's
ordinances or other regulations of the city notwithstanding, City shall issue building permits to
DEC to construct the DEC Capital Improvements pursuant to Paragraph 4 of this Amended
Agreement.
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
8 RESOLUTION#2011-095
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
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".
9 RESOLUTION#2011-095
C. Notwithstanding the foregoing, prior to the issuance of the building
permits for the Phase IA (hotel) and Phase 1 B (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 professional
engineer and a licensed architect and shall be sealed by an engineer and architect both licensed in
the State of Florida ("DEC Capital Improvement Construction Plan"). The DEC Capital
Improvement Construction Plan which is submitted shall comply with the DEC Capital
Improvement Plan and the City's water, sewer and fire safety requirements. The fire safety
requirements include those set forth on Exhibit "F" attached hereto. In addition, the landscape
material to be installed by DEC shall meet the standards and criteria set forth on Exhibit "C", at
pages LOI, L02, L03, L04, L05 and L06.
b. The DEC Capital Improvement Construction Plan shall be delivered to
City for review and determination of compliance with the Florida Building Code and
Administrative Chapter One, as applicable to Broward County.
10 RESOLUTION#2011-095
C. DEC intends to submit the DEC Capital Improvement Construction Plans
in a series of construction permit plan sets (the "DEC Construction Plan Permit Sets"). City shall
use its best efforts to complete the review of each set of DEC Construction Plan Permit Sets not
later 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 the
Florida Building Code and Administrative Chapter One, as applicable to Broward County, the
DEC Capital Improvement Plan and the City's water, sewer, drainage, and fire safety
requirements, 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 the
Florida Building Code, or Administrative Chapter One, as applicable to Broward County, or with
the DEC Capital Improvement Plan, or with the City's water, sewer, drainage, and fire safety
requirements, then City shall notify DEC in writing as to the reasons why such plans do not
comply. If the City provides such notice, DEC shall provide written notice to City not later than
thirty (30) days after its receipt of City notice that it will (i) as to issues related to the Florida
Building Code and Administrative Chapter One, either revise the DEC Construction Plan Permit
Sets 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 Chapter
One, either revise such DEC Construction Plan Permit Set(s) in accordance with the City notice
or submit the dispute to resolution as provided for in Paragraph 9 of this Agreement.
f. DEC agrees that no buildings will be constructed upon the Property within
the area identified on Exhibit"G" as "Minimum Neighborhood Buffer Area."
11 RESOLUTION#2011-095
g. Prior to the issuance of any building permit, DEC shall pay a permit fee to
City in the amount established for a permit that cannot be classified under the City's Schedule of
Permit Fees for Construction.
h. Phase 1 includes various parking, landscape, specialized pavement
and lighting improvements to Fronton Blvd. (the "Fronton Blvd. Improvements" depicted on
pages L01, L02, L03, L04, and L06 of Exhibit "C"). DEC will dedicate any additional lands
needed to establish any new right of way to construct Fronton Blvd. as depicted on page A01 of
Exhibit "C". The Fronton Improvements depicted on pages L01, L02, L03, L04, L05 and L06
of Exhibit "C" shall be constructed in accordance with applicable engineering standards and will
be 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 Park
Parking")will be completed prior to the issuance of the first final certificate of occupancy for the
development included in Phase 1 (page A01, Exhibit "C"); however, in the event the completion
of the Frost Park Parking is delayed by matters beyond DEC's control, then the completion of
the Frost Park Parking shall occur prior to the issuance of the last final certificate of occupancy
for Phase 1. The sixty (60) temporary parking spaces, to be provided to the public pursuant to
paragraph 9d. below, shall continue to be available to the public until completion of the Frost
Park Parking. Prior to the City's acceptance of the Fronton Blvd. Improvements, City and DEC
will enter into an appropriate maintenance agreement, in a form as approved by the City
Attorney, to provide for on-going maintenance by DEC of the Fronton Blvd. Improvements from
the intersection of Fronton Blvd. and Dania Beach Blvd. north to a point approximately 538 feet
south of the intersection of Fronton Blvd. and Northeast Second Street measured from the
centerline of Fronton Blvd. and Northeast Second Street, such that the City shall continue to be
12 RESOLUTION#2011-095
responsible 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 Broward
County for the proposed crosswalks within the Fronton Blvd. Improvements. DEC will provide
the necessary plans for such approval to the City and the City will submit such plans to Broward
County and seek approval as expeditiously as possible. In the event the City is unable to obtain
Broward County approval for these crosswalks within 45 days of submitting said plans to the
County,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 will
remain 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 proposed
angled 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. Sign
illumination 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; this
limitation on illumination shall not be applicable to those signs and site lighting illuminating
directly onto Dania Beach Blvd. Additionally, no signage located within the Property shall
display advertising for any commercial establishment, merchandise, service or entertainment
which is not sold, produced or furnished on the Property nor shall display advertising for any
commercial establishment or entertainment on the Property which involves nudity. No signage
shall incorporate technology which allows the emission of smoke, odor, lasers or sounds.
Photometric plans will be submitted in connection with the appropriate DEC Construction Plan
Permit Sets. Any LED signs will have automatic shutoff in the event of malfunction.
13 RESOLUTION#2011-095
j. Prior to the issuance of a certificate of occupancy for Phase 1, DEC shall
cause the installation of a perimeter fence along the boundaries of those portions of the Property
north 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 Broward
County Environmental Protection Division, if required. In addition, in connection with the
environmental permitting of Phase 1B, DEC will use its reasonable best efforts to have removal
of all existing concrete slabs and related structures located within the North Property Area as part
of the first phase of redevelopment of this portion of the Property.
5. Plat Note Amendment. The Plat for the Property included a Plat Note restricting
development of the Property as follows: "325,000 square feet of Gaming Facility which includes
100,000 square feet of Casino, 1000 Seat Fronton and 187,000 square feet of Accessory
Commercial use on Parcel A; 54 Single Family Detached Units on Parcel B; and 1.159 Acres of
Active Park on Parcel C." The City hereby authorizes the execution and issuance of the "No
Objection Letter" attached hereto as Exhibit "H," amending the plat note on the Plat to read as
follows: Parcels A, B, and C of this Plat are restricted to 325,000 square feet of gaming facility
which includes a casino, a Jai Alai fronton and Accessory Commercial use within a single
building, and 15 acres of Pari-Mutuel Facility Capital Improvements Commercial Use. City
hereby confirms that development of Phases lA and I do not require an allocation of use from
the Dania Beach Regional Activity Center ("RAC"), consistent with the determination made by
the Executive Director of the Broward County Planning Council dated August 16, 2011, attached
hereto as Exhibit "I".
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
14 RESOLUTION#2011-095
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.
7. Construction Vehicle Management Plan. DEC and all contractors and
subcontractors shall comply with the following requirements during construction of the DEC
Capital Improvements:
15 RESOLUTION#2011-095
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
Permit Sets will include identification of a location where the City shuttle service can pick-
up/drop-off passengers within the Property.
16 RESOLUTION#2011-095
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
and Emergency 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 and an emergency medical services unit, unless additional
emergency medical service is already being provided pursuant to paragraph 11 below. The City-
approved Traffic and Emergency 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:
17 RESOLUTION#2011-095
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 then existing development is sufficient to meet the needs of such development. Parking
will be deemed sufficient if the parking study reveals that, over a period of one (1) month within
the peak season in south Florida for tourism (December-April), average utilization of the parking
on a peak hour peak day of operation (peak hour peak day to be determined by DEC during the
course of its operations) is less than 90%. In the event the parking study reveals, or if at any time
DEC determines in its sole discretion, that additional at grade or structured parking is needed,
18 RESOLUTION#2011-095
DEC will submit amendments to Exhibit "C" and process same pursuant to the procedure set
forth in paragraph 3.c. above. Such structured parking may include a parking structure with a
maximum height of 5 stories, to be constructed within the air rights reserved by DEC as provided
in 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 IA,
DEC will install sidewalk in those portions of the public right of way adjacent to the Property
where no sidewalk has been installed and where the sidewalk does not meet current ADA
minimum requirements. The City will install new sidewalks in those portions of the public right
of way between Gulfstream Blvd. and the eastern edge of the Property where no sidewalk has
been installed and where the sidewalk does not meet current ADA minimum requirements, and
DEC will reimburse the City in an amount equal to the cost to the City of installing these
sidewalks, but in no event will DEC's payment to the City for this sidewalk improvement
exceed $50,000.
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.
19 RESOLUTION#2011-095
i. Prior to the issuance of a building permit for each phase of the
development depicted in Exhibit "C", DEC, or its contractor, shall be required to obtain a
License for Use of City 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 form approved by the City Attorney, which shall provide security for the cost
to repair any damage caused to Dania Beach Boulevard and U.S. 1 within the City by
construction vehicles serving the development of the DEC Capital Improvements. Provided,
however, such License and bond shall include, but not be limited to, provisions for the City to
provide evidence to DEC that any damage for which repair is sought or an effort to have
payment under the bond made was created by construction vehicles serving the development of
the DEC Capital Improvements and, since multiple phases of the development may occur at the
same time, only one such bond will be required at any given time during the construction of the
DEC Capital Improvements.
j. DEC shall obtain City administrative approval of temporary uses held
outside of an enclosed building in accordance with the requirements of Article 675 of the City
Land Development Code, as amended from time to time, except that DEC shall not be required
to obtain City Commission approval of these uses, and DEC shall not be required to follow
Article 675 for the temporary uses listed in Subsection 675-20(D)(1)-(5).
10. DEC and City Cooperation in Evaluation and Mitigation of Unforeseen Traffic
Impacts. DEC and City hereby acknowledge that, although DEC has submitted and the City's
consultant has reviewed, a comprehensive traffic study reflecting that the impacts of the DEC
Capital Improvements do not present a justifiable and immediate hazard to the health and safety
of municipal residents, the parties agree that given the unique nature of the DEC Capital
20 RESOLUTION#2011-095
Improvement Uses, it is advisable to evaluate traffic impacts once Phase 1 has been operating for
a period of time. Therefore, DEC and City hereby agree that, within ninety(90) days of the third
(P) 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 a
joint 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
should be implemented (hereinafter referred to as the "Joint Traffic Analysis"). Such alternative
traffic management measures will include, but not limited to: intersection improvements, traffic
signalization re-timing, modification to existing traffic calming improvements, or traffic
circulation within the Property. The Joint Traffic Analysis will take into account the impacts of
development other than the DEC Capital Improvements which has occurred in the traffic impact
area, with a view toward clearly distinguishing the impacts of such other development from
those of the DEC Capital Improvements. Any alternative traffic management measures
recommended in the Joint Traffic Analysis will be presented to the City Commission at a public
hearing for its review and approval. DEC's participation in the Joint Traffic Analysis is in no
way to be interpreted to in any way preclude DEC's development of the DEC Capital
Improvements, or as creating an obligation on DEC to contribute any money to the cost of
implementing 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 the
alternative traffic management measures include modifications to traffic circulation within the
Property, and such modifications are acceptable to DEC, DEC will be responsible for the costs of
such onsite traffic circulation modifications; (iii) in the event the City Commission approves
alternative traffic management measures as part of its review and approval of the Joint Traffic
21 RESOLUTION#2011-095
Study and programs those improvements (including eminent domain costs, if any) for a
particular fiscal year, DEC will contribute its proportionate share based on trips ("DEC's Traffic
Contribution") to the City upon such traffic management measure being let for contract;
provided further, DEC's Traffic Contribution will be reduced by 10% of the total amount paid to
City pursuant to Section 4.1.5 of the "Agreement Among Broward County and The Aragon
Group Inc. Regarding Operation of Slot Machines in a Parimutuel Facility" dated January 25,
2005, in the three consecutive fiscal years prior to the one in which the alternative traffic
management measure is programmed for construction.
11. Evaluation of Emergency Medical Services Impacts. DEC and City hereby
acknowledge that, given the unique nature of the DEC Capital Improvement Uses and the
associated need for emergency medical services at peak times, it is advisable to provide for
emergency medical services impacts. Therefore, DEC and City hereby agree that whenever at
least three (3) calls for emergency medical services are generated during a particular eight (8)
hour period in any four (4) consecutive weeks ("Peak Incident Event"), then DEC will contract
with Dania Beach BSO Fire Rescue at DEC's expense to provide emergency medical services
coverage during that eight (8) hour period each week thereafter until no Peak Incident Event has
occurred for 2 consecutive months. 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 so provided do not contribute to the creation of a Peak
Incident Event.
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
mediation prior to litigation. The mediator's fees shall be paid equally by the parties. Any of the
22 RESOLUTION#2011-095
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 to
refer to the masculine, feminine and neuter, singular or plural, as the identity of the party or
parties,personal representatives, successors or assigns may require.
C. Severability. The invalidity of any provision hereof shall in no way affect
or invalidate the remainder of this Agreement.
D. Counterpart. This Amended Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall together
constitute one and the same instrument
23 RESOLUTION#2011-095
E. Headings. The headings contained in this Amended Agreement are
inserted for convenience only and shall not affect, in any way, the meaning or interpretation of
the Amended Agreement.
F. Governing Law. This Amended Agreement shall be construed in
accordance with the laws of the State of Florida, and any proceeding arising between the parties
in any manner pertaining to this Agreement shall, to the extent permitted by law, be held in
Broward County, Florida.
G. Joint Preparation. City and DEC agree that they have sought and received
whatever competent advice of counsel necessary for them to form a full and complete
understanding of all rights and obligations herein and the preparation of this Amended
Agreement has been a joint effort. The language agreed to expresses their mutual intent and the
resulting document shall not be construed more strictly against one of the parties than the other.
H. Succession and Assignment. This Amended Agreement and interest
herein 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 City
Commission, which consent shall not be unreasonably withheld and which consent shall be
granted and deemed to have been given if the State of Florida, Department of Business and
Professional Regulation, authorizes the transfer of the Pari-Mutuel Facility's permit to conduct
pari-mutuel wagering and DEC shall provide written notice to City within five (5) days of such
a transfer.
15. Effective Date. The effective date of this Amended Agreement shall be the date
the City receives written notice from DEC that it has obtained fee simple title to the Property.
24 RESOLUTION#2011-095
16. Notice. All notices, requests, consents and other communication required or
permitted under this Amended Agreement shall be in writing and shall be (as selected by the
person giving such notice) hand-delivered by messenger or courier service, sent by facsimile, or
mailed airmail if international b registered or certified mail (postage prepaid),
( ) y g (p g p epa d), return receipt
requested, 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
[SIGNATURE PAGE FOLLOWS]
25 RESOLUTION#2011-095
WITNESS: CITY OF DANIA BEACH, a Florida
municipal corporation
By:
Patricia A. 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)
26 RESOLUTION#2011-095
STATE OF FLORIDA )
COUNTY OF BROWARD ) SS.
The foregoing instrument was acknowledged before me this _ day of ,
2011, by PATRICIA A. FLURY, Mayor of the City of Dania Beach, a Florida municipal
corporation. 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
STATE 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 municipal
corporation. He 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
27 RESOLUTION#2011-095
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 take an oath.
Notary Public, State of Florida
(Signature of Notary)
My Commission Expires:
Name of Notary Typed, Printed or Stamped
28 RESOLUTION#2011-095