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THIS AGREEMENT is between Southwest Florida Enterprises, Inc., a for-profit corporation organized under the laws of the State of Florida (individually and collectively, together with its affiliated entities, subsidiaries, assignee, designee or . th affiliated organization, the "Company"), with its headquarters located at 401 NW 38 Q., Miami, Florida 33126 which will support a countywide initiative referendwn in Miami-Dade County for the purpose of authorizing slot machines in certain existing parimutuel facilities pursuant to Article X, section 23, Florida Constitution (the "Referendum Campaign"); and Millennium Marketing, Inc. a corporation organized under the laws of the State of Florida with its principal place of business at 1316 Southwest 13S1h Place, Miami, Florida 33184 (the "Consultant"). WHEREAS, the Consultant is in the business of providing political consulting and strategic advice in reference to Miami-Dade countywide campaigns comparable to the nature and scope to the Referendum Campaign and provides advisory, strategic planning, consulting, and public relations services, as more particularly described in this Agreement, for the purpose of winning such countywide campaigns. AND WHEREAS, the Consultant shall, during the period of time covered by this Agreement, act as the strategic director of a Referendum Campaign and shall represent the Company in providing guidance, counsel and advice relating to such Referendum Campaign for the purpose of winning such Referendum Campaign and shall provide campaign strategic consulting services, including but not limited to the specific scope of services set forth on Exhibit "A" to this Agreement, (the "Services"). AND WHEREAS, each of the Company along with Florida Gaming Corporation d/b/a Miami Jai Alai and Calder Race Course, Inc. is currently, or is anticipated to become a Participant, as defined below, in sponsoring, causing to be sponsored or supporting the Referendum Campaign and will collectively or, to the extent there is less than three Participants (as defined below) joint and severally, provide substantially all of the funds required in reference to the Referendum Campaign that are paid to Consultant as Compensation pursuant to terms and conditions of this Agreement. For purposes of the terms and conditions of this Agreement, the term "Participant" shall include the Company and any other party provided that [aJ such other party has entered and fullyexecuted an agreement with substantially the same form, terms and conditions as set forth in this Agreement (a "Participant Joinder Agreement"); [b] such other party's Participant Joinder Agreement has been agreed to and acknowledged by the Company in writing; and [c] such third Party has made a pro-rata payment to the Company and any other Participants, or their respective designees, of funding in an amount equal to the amount that would have been such Participant's equal share of funding had such Participant been a Participant on or before November 1,2006. and in an amount adequate and sufficient to fully-reimburse the Company and any other Participants, or their respective designees, for any and all out-of-pocket costs accrued or paid pursuant to the terms and conditions of this Agreement for such Joining Participant's pro rata share of any such costs as if such Joining Participant had been a Participant pursuant to the terms and conditions of
this Agreement on or before November 1,2006. Until such time that all three of the collective conditions set forth in the immediately-preceding sentence have been met, any party seeking to become a Participant pursuant to the terms and conditions of this Agreement who has satisfied at least one of such three collective conditions shall be referred to for purposes of this Agreement as a "Joining Participant." For purposes of this Agreement and any Participant Joinder Agreement, the term "Participant" shall mean each individual Participant and the term "Participants" shall mean all of the collective Participants. AND WHEREAS, the parties agree, after having a complete understanding of the Services desired and the Services to be provided, that the Company desires to retain Consultant to provide such services to the Company, and the Consultant is willing and able to provide such Services to the Company. NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: 1. CONSULTANT DUTIES AND INVOLVEMENT. The Company hereby engages Consultant to be a political strategist to the Referendum Campaign and to be ultimately responsible for coordinating or directing all aspects of such Referendum Campaign by providing the Referendum Campaign management and strategic consulting Services, including but not limited to those services set forth in the Scope of Services on Exhibit A, which is attached to this Agreement and expressly incorporated into the terms and are conditions of Consultant's performance of this Agreement for all purposes. The Consultant agrees, as a condition precedent to this Agreement, that it shall engage David Rivera as the key person to act as the primary provider of Services pursuant to the terms and conditions of this Agreement and to act as the intermediary on behalf of the Consultant with the Company for all purposes, and that the failure of David Rivera to act in these capacities shall be grounds to terminate immediately this Agreement, without notice and without the Company's being required to pay any further amounts or damages; except for accrued, payable and incurred amounts due and previously invoiced as of the date of tennina.tion. 2. RELATIONSHIP AMONG THE PARTIES. Consultant acknowledges that neither it nor any of its officers, employees, directors or agents is an officer, employee, director or agent of the Company and neither the Consultant nor any of its officers, employees, directors or agents shall be responsible for any management decisions on behalf of the Company nor may the Consultant or any of its officers, employees, directors or agents commit the Company to any action without the written consent of the Company to be bound by any such commitment. The Company hereby represents, agrees and acknowledges that neither the Consultant nor any of its employees, officers, directors or agents has through stock ownership or otherwise, any power to control the Company or to exercise any influences over any of their
respective managements. Notwithstanding any other provision in this Agreement, its is hereby acknowledged and agreed that the attorneys, consultants, lobbyists and advisors employed or contracted with the Company (other than the officers and directors of the Company) whose job description or duties entail or encompass rendering services related to the Referendum Campaign shall at all times report on Referendum Campaign issues to David Rivera and shall be subject to the instruction, direction and guidance of David Rivera when rendering services to or on behalf of the Company relating to the Referendum Campaign. Consultant understands and acknowledges that this Agreement shall not create or imply any agency relationship among the parties, and Consultant shall not commit the Company in any manner except when such a commitment has been specifically authorized in writing by the Company. The Company and the Consultant agree that the Consultant's relationship with the Company shall be that ofan independent contractor. 3. EFFECTIVE DATE, TERM AND TERMINATION. This Agreement shall be effective on November 1, 2006 and shall terminate, except when extended as expressly provided in this Agreement, until the earlier of (a) thirty days following the date that the results of the election that is the subject of the Referendum Campaign become final pursuant to applicable law or (b) December 31, 2008. This Agreement can only be modified through a written amendment executed by all of the parties to this Agreement 4. OPTION TO RENEW AND EXTEND. Notwithstanding Section 3 of this Agreement, the Company may renew this Agreement on substantially the same terms and conditions by providing written notice to Consultant at any time prior to the expiration of this Agreement. 5. COMPENSATION AND PAYMENT OF EXPENSES.
The Company agrees to pay, or caused to be paid, to the Consultant as total and complete consideration for the Services to be provided by the Consultant to the Company the Compensation as set forth below. The Company shall have no other obligation to Consultant for payment, excepting the obligation for Additional Compensation as expressly provided for in this Agreement. In the event that the Company exercises an option to extend this Consulting Agreement, the Consultant will be entitled to additional monthly compensation in at least the amount of the then-applicable Monthly Retainer, as defmed below, for such time until the Agreement is terminated. As primary compensation, the Company together with any other Participants, if any, shall pay Consultant $250,000.00 payable as follows:
A retainer in the amount of $50,000.00 payable on or before November 1, 2006, for providing Services in the form of strategic planning and consulting services in preparation for the proposed election Referendum Campaign (the "Initial Monthly Retainer"); and Either: a. In the event an election is determined to be held in 2007, Compensation in the amount of $200,000.00 payable in equal monthly installments of$18,181.82 accruing monthly commencing on January 1, 2007, and due on or before the 15th day of the month immediately following the last day of the month in which such installment may accrue (the '~007 Monthly Retainer"); or h. In the event an election is determined to be held in 2008, Compensation in the amount of $500,000.00 payable in equal monthly installments of$21,739.13 , accruing monthly commencing on January 1,2007, and due on or before the 15th day of the month immediately following the last day of the month in which such instalhnent may accrue (the "2008 Monthly Retainer").
The Initial Monthly Retainer, the 2007 Monthly Retainer and the 2008 Monthly Retainer shall be individually referred to a "Monthly Retainer" or collectively, and as applicable, the "Monthly Retainers." As Additional Compensation, which shall be completely conditioned upon a successful outcome in the Campaign election during calendar years 2007 or 2008, Consultant will become eligible to receive the following cumulative compensation amounts from the Company and any other Participants: (i) A bonus amount of $250,000.00 payable within 60 days following the date that slot machines are approved in Miami-Dade County in the Referendum Campaign election (the "Initial Bonus"); and A bonus amount of $500,000.00 accruing in equal monthly installments of $20,000.00 (the "Monthly Bonus Installments") for a 25 month period commencing 60 days after the date that the Initial Bonus becomes due and payable (the "Monthly Bonus Installment Initial Due Date"). Each successive Monthly Bonus Installment shall become due and payable on 15th day of each successive month for a period of 23 additional months following the Monthly Bonus Installment Initial Due Date.
The Company agrees to pay for all costs and expenses incurred by the Consultant on behalf of the Company associated with any approved sub-consultants, non-employee agents or sub-contractors working with the Consultant and its representatives, including
lodging, meals, and travel as reasonably necessary. Any such sub-consultants, nonemployee agents, and sub-contractors of Consultant shall be retained and hired by Consultant, suhJe_ctto_the_written_approva1_and_ay_thQ_riAitiQn_9_f_t1t~Q9.!1}QAAY~ ... ~~(!Qtas ~ expressly agreed and consented to by the Company in writing, any other costs and expenses incurred by Consultant in fulfillment of this Agreement shall be borne by the Consultant, and by third parties engaged by Consultant in connection with the performance of the Services provided in this Agreement. 6. SERVICES NOT EXCLUSIVE. Consultant shall devote such of its time and effort necessary to the discharge of its duties in providing the Services provided for in this Agreement. The Company acknowledges that Consultant is engaged in other business activities, and that it will continue such activities during the term of this Agreement. Consultant shall not be restricted from engaging in such other business activities during the term of this Agreement, provided however Consultant shall devote at least 75% of its working time to the Referendum and further that such other activities shall be not conducted on behalf of any business competitors of the Company or any ideological opponents of Company business activities other than any business competitor who has become a Participant in the Referendum Campaign and who the Company has agreed in writing to consent to such business competitor becoming a Participant. 7. CONFIDENTIALITY. Consultant acknowledges that it may have access to confidential information regarding the Company and its businesses. Consultant agrees that it will not, during or subsequent to the term of this Agreement, divulge, furnish or make accessible to any person (other than with the written permission of the Company) any knowledge or information or plans of the Company with respect to the Company, the Referendum Campaign or the business operations of the Company. Consultant acknowledges and agrees that its duty of confidentiality shall extend beyond the date of termination of this Agreement. 8. COVENANT NOT TO COMPETE. During the term of this Agreement and for a period of two years following the date oftennination of this Agreement, Consultant warrants, represents and agrees that it will not directly or indirectly compete with in the Company in any of their primary pari - "mutuel operations, the slot machine operations or any other gaming operations nor represent any business interest that does so compete or seeks to so compete for the purpose of advancing gaming operations on the part of such business interest in competition to the Company. 9. MISCELLANEOUS PROVISIONS
a. Time. Time shall be of the essence for purposes of this Agreement.
b. Presumption. Neither this Agreement as a whole nor any section of this Agreement shall be construed against any party due to the fact that the Agreement or any of its sections was drafted by or on behalf of such party. c. Computation of Time. In computing any period of time pursuant to this Agreement, the day of the act, event or default from which the designated period of time begins to run shall be included, unless it is a Saturday, Sunday or a legal holiday in Miami-Dade County, Florida, in which event the period shall begin to run on the next day which is not a Saturday, Sunday or a legal holiday and any such period shall continue to run until the end of the next day after which is not a Saturday, Sunday or legal holiday in Miami-Dade County, Florida. d. Titles and Captions. All article, section and paragraph titles or captions contained in this Agreement are for convenience only and shall not be deemed part of the context nor affect the interpretation of this Agreement. e. Pronouns and Plurals. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the Person or Persons may require. f. Further Action. The parties hereto shall execute and deliver all documents, provide all information and take or forbear from all such action as may be necessary or appropriate to achieve the purposes of this Agreement. g. Good Faith, Cooperation and Due Diligence. The parties hereto covenant, warrant and represent to each other good faith, complete cooperation, due diligence and honesty in fact in the performance of all obligations of the parties pursuant to this Agreement. All promises and covenants are mutual and dependent. h. Savings Clause. If any provision of this Agreement, or the application of such provision to any person or circumstance, shall be held invalid, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall remain unaffected. i. Assignment. This Agreement may not be assigned by Consultant without the written consent of the Company, but shall be binding upon any successors of the parties to this Agreement by operation of law or otherwise. This Agreement may not be assigned by the Company, other than to an affiliated entity of the Company, a subsidiary of the Company or a "political committee" or "electioneering communication organization" validly existing and registered pursuant to applicable law.
j Choice of Venue & Attorneys Fees. If a dispute arises out of or relates to this Agreement, or the breach thereof, and if said dispute cannot be settled through direct discussion, the parties agree to first endeavor to settle the dispute in an amicable manner by mediation under the Commercial Mediation Rules of the American Arbitration
Association before resorting to litigation. Thereafter, any unresolved controversy or claim arising out of or relating to this Agreement or a breach thereof shall be settled by a state court of competent jurisdiction in Miami-Dade County, Florida. the event that a dispute results in litigation, the parties hereby agree that any prevailing party shall be entitled to reasonable attorney's fees and litigation costs, on appeal and otherwise.
k. Notices. All notices required or permitted to be given under this Agreement shall be given in writing and shall be delivered, either personally or by express national delivery service, to the party to be notified. Notice to any party shall be deemed to have been duly given upon delivery, personally or by courier (such as Federal Express or similar express delivery service), addressed to the attention of the officer at the address as set forth in this Agreement, or to such otlier officer or addressee as any party may designate, upon at least ten (10) days' written notice, to the other parties.
1. Governing Law. This Agreement shall be construed by and enforced in
accordance with the laws of the State of Florida, without regard to choice of law provisions. m. Entire Agreement. This Agreement contains the entire understanding and agreement among the parties. There are no other agreements, conditions or representations, oral or written, express or implied, with regard thereto. This Agreement may be amended only in writing signed by all parties. n. Waiver. A delay or failure by any party to exercise a right under this Agreement, or a partial or single exercise of that right, shall not constitute a waiver of that or any other right. o. Counterparts. This Agreement may be executed in duplicate counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. In the event that the document is signed by one party and faxed to another, the parties agree that a faxed signature shall be binding upon the parties to this Agreement as though the signature was an original.
p. Successors. The provisions of this Agreement shall be binding upon all
parties, their successors and assigns. q. Counsel. The parties expressly acknowledge that each has been advised to seek separate counsel for advice in this matter and has been given a reasonable opportunity to do so.
IN WI1NESS WHEREOF. the parties hereto have executed and delivered this Agreement to be effective as of the day and year provided herein. COMPANY: SOUTHWEST FLORIDA ENTERPRISES, INC. CONSULTANT: MILLENIUM MARKETING, INC.
By: Name: Title: Vlc.f.
AGREED TO AND ACKNOWLEDGED BY:
CONSULTANT'S SCOPE OF SERVICES FOR CAMPAIGN MANAGEMENT OF MIAMI-DADE CAMPAIGN REFERENDUM SUBJECT TO ANY REQUISITE APPROVALS OF THE COMPANY
Be responsible for direction and coordination of all aspects of Miami-Dade County Slots Referendum Authorizing Campaign during calendar year 2007 or calendar year 2008 and provide the following specific services in fulfilling such duties:
Defme and Implement Approved Campaign Budget and Finance
Issues b. Identify, Recommend and Hire Approved Campaign Consultants & Professionals i.Spokesperson Identification and Retention ii.Public Relations Firm Advice iii.Message Development iv.Define Current Participant Employees, Consultants & Role In Campaign & Oversee Any Participant Personnel Including but not limited to: Flagler: Lori Weems Manny Prieguez Ron Book Miami lai Alai: Dan Liccardi v.Act as Top Leader of Chain of Command of All Campaign Consultants & Campaign Activities for All Participants c. Coordinate Election Scheduling, Finance and Coordination with County/City Opinion Makers Including: *County Commissioners *County Attorney *City of Miami Commission *City of Miami Gardens Commission ·City of Opa Locka Commission Calder: Wilbur Brewton Carole Duncanson Ron Silver
Identification & Neutralization of Opposition
i.Tribal Casinos *Miccosukee Tribe *Seminole Tribe ii.Cruises to Nowhere iii.Animal Rights Activists iv.Moral, Anti-Gambling Activists v.Broward Pari-Mutuels vi.Non-Broward & Non-Miami-Dade Parimutuels vii.VLT Proponents viii.Hispanic Community ix.Hialeah Race Track x.Non-participating Miami-Dade County Parimutuels e. Coordinate Identification & Mobilization of Alliances i.Miami Jai Alai ii.Isle of Capri iii.Biscayne Kennel Club iv.City of Hialeah v.City of Miami Gardens vi. City of Aventura vii.City of Miami Beach viii. City of Miami ix.City of Coral Gables x.City of Homestead xi.Teacher's Union xii.Labor Unions xiii. Economic Development Councils 2. Identify, Coordinate and Make Recommendations On Community Opportunities for the Company i.Charitable Giving Campaigns ii.State & Local Political Campaigns iii.Key Opinion Makers & Community Leader Charitable Projects & Election Campaign Needs