TOTALISATOR SERVICES AGREEMENT
THIS AGREEMENT, made this 11th day of November 1993, between AUTOTOTE
SYSTEMS, INC. a corporation of the State of Delaware (hereinafter called
AUTOTOTE), and W.J.A. REALTY LIMITED PARTNERSHIP, D.B.A. MIAMI XXX XXXX, a
Limited Partnership of the State of Massachusetts (hereinafter called the
OWNER);
WITNESSETH:
WHEREAS, AUTOTOTE provides wagering services and designs, programs and
manufactures totalisator systems for use in wagering applications; and
WHEREAS, OWNER wishes to obtain such wagering services utilizing computer
programs and equipment from AUTOTOTE at a facility known as MIAMI XXX XXXX
(hereinafter called the FRONTON) located at 0000 X.X. 00xx Xxxxxx, Xxxxx,
Xxxxxxx 00000; and
WHEREAS, AUTOTOTE wishes to provide totalisator services utilizing its
computer programs and equipment to OWNER for use at the FRONTON, all on the
terms and conditions hereinafter set forth;
WHEREAS, OWNER and AUTOTOTE mutually agree that this Totalisator Services
Agreement shall, when fully executed by the duly authorized officers of both
parties, supersede the Totalisator Services Agreement dated May 17, 1990; and
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, the parties hereto agree as follows:
I. BASIC TERMS
A. AUTOTOTE shall provide totalisator services utilizing its computer
programs and equipment as described in Schedules A, C and D hereof
(the SERVICES) to OWNER for all wagering held at the FRONTON,
consisting of not less than four (4) operating days per week (other
than the opening and closing weeks), during the six (6) year period
commencing November 17, 1993, and ending September 30, 1999, and OWNER
shall use these SERVICES exclusively during said period for all
wagering held at the FRONTON during the term of this Agreement. A
performance is defined as the betting period for a game or games,
which shall commence no sooner than one-
half (1/2) hour prior to scheduled post time for the first such game
and which shall be limited to a maximum of fifteen (15) games.
B. OWNER agrees to pay to AUTOTOTE for the said SERVICES:
(i) The following percentage of the gross monies wagered, as shown
by the totalisator as having been received from the sale of
tickets issued:
.005 of all monies handled
(ii) In the event the FRONTON operates on Sundays, OWNER agrees to
pay AUTOTOTE an additional Seven Hundred dollars ($700.00) for
such Sunday performance, such payments to be over and above
the rates in subparagraph B(i) and Paragraph C.
(iii) In the event that OWNER requires customer-operated Screen
Activated Self-Service AutoVend terminals over and above the
total number of AutoVend terminals provided for in Schedule
"A" hereof, OWNER agrees to pay to AUTOTOTE an additional fee
of Ten dollars ($10.00) per operating day per terminal, such
payment to be over and above the rates in subparagraph B(i)
and Paragraph C.
(iv) In the event that OWNER requires customer-operated Voucher
Dispenser Terminals over and above the total number of Voucher
Dispenser Terminals provided for in Schedule "A" hereof.
OWNER agrees to pay to AUTOTOTE an additional fee of Ten
dollars ($10.00) per operating day per terminal, such
payment to be over and above the rates in subparagraph B(i)
and Paragraph C.
(v) In the event that OWNER installs Tiny XXX personal account
terminals with account wagering, OWNER agrees to install a
minimum of twenty-five (25) terminals for wagering at dining
tables and certain reserved seat areas. OWNER agrees to pay
to AUTOTOTE an additional fee of Three dollars ($3.00) per
performance per terminal, such payment to be over and above
the rates in sub-paragraph B(i) and Paragraph C.
Notwithstanding the foregoing,
2
OWNER shall have the right at the end of a season, either
summer or winter, to remove and return to AUTOTOTE any Tiny
XXX personal account terminals installed pursuant to this
Agreement, and Owner shall not be liable for any such payment
after such return.
C. The minimum annual amount to be paid by OWNER to AUTOTOTE under
subparagraph B(i) for the SERVICES for the first three (3) years of
this Agreement shall not be less than the sum of Four Hundred Fifty
Thousand dollars ($450,000) per annum and the minimum annual amount
to be paid by OWNER to AUTOTOTE under subparagraph "B(i)" for the
services for the three (3) remaining years of this Agreement shall
not be less than the sum of Four Hundred Thousand dollars
($400,000.) per annum. Except as stated in paragraph IV.I below,
in the event the amount payable to AUTOTOTE under subparagraph B(i)
above is less than this minimum amount for any such year, OWNER
shall pay AUTOTOTE the difference (hereinafter called "the
deficiency") within ten (10) days after the end of such year.
D. All amounts due hereunder, except the deficiency amount due AUTOTOTE
under Paragraph C above shall be payable weekly without deduction not
later than Wednesday of the following week. If not paid within five
(5) days after the due date, interest at the rate of two percent (2%)
per month or to the extent allowed by law if less, starting from the
day immediately following the due date shall be imposed on such
amounts, and AUTOTOTE may refuse to provide SERVICES hereunder for
so long as the failure of OWNER to pay continues, and AUTOTOTE may
require payment on a per performance basis for subsequent
performances, or, by five (5) days written notice, may terminate
this Agreement and be relieved and discharged from any and all
further responsibility, liability or obligation hereunder.
E. The totalisator system, computer programs and ancillary equipment
incident thereto or necessary to the operation thereof, shall remain
the property of AUTOTOTE except that junction boxes, wiring and
cabling provided by AUTOTOTE and made a part of the fixed installation
shall become the property of OWNER upon payment for same by OWNER
under paragraph I(H) herein. The
3
totalisator system, computer programs and ancillary equipment shall at
all times be and remain under the exclusive control of AUTOTOTE.
F. Not applicable. Intentionally left blank.
G. Not applicable. Intentionally left blank.
H. OWNER shall provide, at its expense, all labor and materials required
to install the alternating current power and other changes necessary
to the permanent installation materials for modifications to the
totalisator system in accordance with AUTOTOTE'S specifications.
AUTOTOTE shall provide design and supervision of the installation at
no additional cost to OWNER.
I. Not applicable. Intentionally left blank.
J. OWNER shall provide adequate security for all AUTOTOTE equipment and
materials at the FRONTON. In the event that such equipment is damaged
or missing due to no fault of AUTOTOTE, there shall be an appropriate
adjustment in the delivery date.
K. Annexed hereto as Schedule "C" is a description of the reports to be
provided by AUTOTOTE.
L. Annexed hereto as Schedule "D" is a detailed description of the
required capabilities for which the totalisator system will be
programmed.
M. AUTOTOTE agrees to keep OWNER'S standard operating program updated on
an equal basis with the standard operating program used at AUTOTOTE'S
other VAX/Autotrak II full service operations in the United States, at
no cost to OWNER; provided, however, any changes necessary to conform
to special requirements of OWNER and/or the Florida Department of
Business Regulation shall be for OWNER'S account.
N. AUTOTOTE shall continue to maintain OWNER'S electronic color matrix
display board under the warranty terms of the Sales Agreement dated
August 18, 1987 between AUTOTOTE and OWNER. Such warranty expires
November 26, 1992. Starting November 27, 1992 through September 30,
1995 labor for the installation of replacements parts shall be
provided to OWNER by AUTOTOTE at no charge to OWNER during OWNER'S
normal Xxx Xxxx season. At the
4
expiration of the warranty, OWNER agrees to purchase all replacement
spare parts in stock from AUTOTOTE at AUTOTOTE'S selling price (market
competitive) in effect at that time and all other necessary
replacement parts to service the board. Should OWNER desire service
for the matrix board when OWNER'S Fronton is not operating a Xxx Xxxx
season OWNER agrees to pay to AUTOTOTE AUTOTOTE'S labor and expenses
necessary to service said matrix board.
5
II. AUTOTOTE HEREBY FURTHER AGREES AS FOLLOWS:
A. Should additions be necessary after the initial permanent installation
AUTOTOTE shall furnish all necessary DC and signal installation
materials and equipment required for the electrical installation of
the "Tote" room, the selling lines and in the public display board(s),
the cost of such materials shall be borne by the OWNER at prices in
effect at the time of delivery.
B. To service the Totalisator System and maintain it in efficient
operating condition during each race betting interval on all gaming
days during the term of this Agreement.
C. To provide the necessary high speed printer paper, betting slips,
teletype paper and other stationery supplies as may be required for
use with the totalisator system, and OWNER shall pay AUTOTOTE for
these supplies at the prices in effect at the time of delivery.
D. To notify OWNER of new or improved services perfected by AUTOTOTE and
to implement changes in the SERVICES provided hereunder to reflect
such of the new or improved services as OWNER may desire, provided
that OWNER shall pay for all such modifications and changes and for
such new or improved SERVICES to be provided by AUTOTOTE at the prices
agreed upon by the parties.
E. To furnish and maintain at the FRONTON on each wagering day the
personnel necessary for AUTOTOTE to perform the SERVICES, including
operating the central controls and maintaining the Totalisator System
in efficient operating condition. The number of personnel provided
shall be at the sole discretion of AUTOTOTE.
F. To maintain adequate fire insurance, theft, vandalism and riot
insurance coverage on all ancillary materials and equipment which are
required by AUTOTOTE in order to perform the SERVICES, and which are
the property of AUTOTOTE in an amount adequate to replace same.
G. To carry Workmen's Compensation insurance on its own employees and at
least One Million dollars ($1,000,000) of public liability insurance
on the totalisator and supply OWNER with evidence of such insurance
coverage.
6
H. To furnish all necessary ticket paper for the Sell/Cash terminals.
I. To reimburse OWNER for all amounts which OWNER shall be required to
disburse by reason of errors made by AUTOTOTE or its employees or its
equipment (other than as provided for in paragraph IV C.), provided
however that in arriving at the amount, if any, to be so reimbursed,
AUTOTOTE shall receive credit for all like overages to the extent to
which AUTOTOTE has the approval of the Florida Department of Business
Regulation for the credit to AUTOTOTE of such overages, and, provided
further, that AUTOTOTE shall not be required to make a reimbursement
if any error is due to the neglect, acts, omission or mistakes of
OWNER or any of its employees, the State or any of its employees, or
acts of other parties for whom AUTOTOTE is not responsible, and
provided further that AUTOTOTE shall not be required to reimburse
OWNER for any errors regardless of cause in the Big "P", Big "Q", Twin
Double or similar pools in which winning tickets in a prior division
of the pool are exchanged for tickets in a subsequent division of that
pool.
J. To indemnify and save OWNER harmless from any loss, liability, costs
or expenses (including reasonable attorney's fees) arising out of or
related to and to defend at its own cost, any patent claim or
litigation of any kind, including any claim for damages which may be
instituted against OWNER, or to which OWNER may be made a party, by
reason of the SERVICES provided herein by AUTOTOTE, provided written
notice of such claim is given to AUTOTOTE within ten (10) days after
receipt of same by OWNER. AUTOTOTE shall have the right to exercise
full control of all negotiations and litigation in connection
therewith, including selection of counsel, and shall not be liable for
any costs or expense incurred by OWNER without AUTOTOTE'S prior
written approval, which approval shall not be unreasonably withheld,
nor shall AUTOTOTE be responsible for any claim or litigation based on
equipment not furnished by AUTOTOTE as part of its SERVICES hereunder.
7
III. OWNER HEREBY FURTHER AGREES AS FOLLOWS:
A. After the initial permanent Totalisator installation OWNER will
furnish, at its expense, all necessary labor required for additions to
the installation of the Totalisator System, which labor includes the
laying, pulling, connecting and terminating of all necessary cables,
terminals, switches, junction boxes, and other similar material, as
required in the "Tote" room, display boards, ticket selling lines,
judges and/or stewards locations, mutuel manager and head banker
locations, which services shall be performed in accordance with
AUTOTOTE'S specifications.
B. It will furnish at its expense:
(i) Adequate electrical power for the proper operation of the
Totalisator System. For this purpose incoming power lines
having sufficient capacity shall be brought from the local
utility to the "Tote" room, the selling lines, and the display
boards, and distributed and terminated at locations as specified
by AUTOTOTE.
(ii) A "Tote" room of sufficient size to house the central control
equipment in a secure manner with an efficient layout, free
from dampness and reasonably free from dust, with necessary air
conditioning, suitable lighting, raised flooring, and with
adequate entrances capable of being secured so as to limit
access to such control room in accordance with paragraph
III(L).
(iii) Teller windows having ticket counters of sufficient size and
structural strength to accommodate AUTOTOTE'S ticket issuing
machines in areas reasonably free from dust and dirt.
(iv) A fieldboard structure sufficiently secure and dry with
adequate ventilation, interior lighting and AC electric power
to permit the accommodation and satisfactory operation of
fieldboard display equipment.
(v) Adequate and appropriate facilities, under the exclusive
control of and satisfactory to AUTOTOTE for proper maintenance
of its materials and equipment and for the safe and secure
storage of ticket paper and other supplies.
8
(vi) Adequate and appropriate rest rooms, convenient free parking,
and other facilities for AUTOTOTE'S personnel on a par with
facilities provided for other similar level personnel employed
by the FRONTON.
(vii) All facilities furnished by OWNER hereunder shall conform to all
applicable fire, electrical, building and similar codes;
O.S.H.A. standards, and other government regulations.
C. In carrying out its undertaking hereunder, OWNER may be required to
provide new structures or housings for the materials and equipment
utilized by AUTOTOTE in performing the SERVICES hereunder, or to alter
its existing structures or housings for such purpose. In such event,
it will furnish at its expense, all materials and labor required for
such structures or housings in accordance with specifications supplied
by AUTOTOTE, including opening and closing of necessary trenches
required, surrounding underground cable ducts with suitable casing,
burying cable ducts if run underground, opening and closing of walls,
floors or ceilings, clean-up and disposition of refuse, and repair of
any damage to buildings, grounds, plantings, etc. caused by
installation, provided such damage was not caused by negligence of
AUTOTOTE.
D. It will keep proper records and books of account and make true and
complete entries therein of all appropriate information relating to the
operation of wagering at the FRONTON.
E. Except as herein otherwise provided, it will pay the cost of any
alterations in or additions to the SERVICES, including programming
changes, as may hereafter be desired by OWNER, and such alterations,
if practicable, will be made by AUTOTOTE promptly after receipt from
OWNER of its written request therefor.
F. It will furnish, at its own expense, an adequate staff of paper
changers, tellers, mutuel personnel and any other personnel as are
required in connection with the operation of the wagering at the
FRONTON, except for the personnel to be furnished by AUTOTOTE as
provided in paragraph II(E) hereof. OWNER'S paper changers, tellers,
mutuel personnel and any other personnel will operate the terminals
strictly in accordance with AUTOTOTE'S instructions, will account as
required to AUTOTOTE'S Manager at the FRONTON for all rolls of ticket
paper removed from
9
paper storage room(s) and/or terminals, and will not otherwise attempt
to handle or operate the Totalisator System.
G. It will afford AUTOTOTE and its duly authorized agents or
representatives access at all reasonable times to the buildings and
premises at the FRONTON.
H. It will not use the Totalisator System for any purpose other than as
specified in this Agreement and will not permit any part of the system
to be removed from the FRONTON by persons other than agents or
employees of AUTOTOTE.
I. It will, at its expense, furnish electricians to maintain and service
the electric power facilities required to be furnished by OWNER as
provided in paragraph III(B).
J. It will take, at its expense, all necessary measures to keep the
Totalisator System materials and equipment kept by AUTOTOTE at the
FRONTON free from any restraint, levy, execution or seizure or other
process of law arising from any acts or omissions of OWNER or its
agent(s) or representative(s) which would in any way impair the title
of AUTOTOTE to such Totalisator System, materials and equipment or
possession or repossession thereof when permitted under this
Agreement. At AUTOTOTE'S request, it will provide AUTOTOTE with a
waiver of landlord's lien.
K. It will comply with all rules, laws, request, ordinances and
requirements of every government, county, state or municipality,
department, bureau or board which may arise out of or in connection
with the possession, use and/or operation of wagering at the FRONTON
including fire insurance underwriters' requirements. OWNER shall also
furnish, at its expense, the safety devices needed to comply with such
requirements.
L. It will maintain and furnish to AUTOTOTE a list of persons authorized
to have access to any room or structure housing any part of the
Totalisator System, which list shall specify the particular position
to which each such person is assigned and the place or location of
employment, the persons on such list being subject to the approval of
AUTOTOTE, which approval shall not be unreasonably withheld. It will
not permit access to the "Tote" room or fieldboard by any
10
unauthorized persons, and will protect the secured areas from trespass
or interference by such persons. OWNER further agrees to indemnify
AUTOTOTE for damages or loss to AUTOTOTE caused as a result of access
to the secured areas having been given by OWNER or its employees or
agents.
M. It will indemnify and hold AUTOTOTE harmless against any loss,
liability, costs or expenses (including reasonable attorney's fees)
arising out of or related to claims or suits for damages to persons or
property resulting from the operation of the wagering by agents and
employees of OWNER.
11
IV. OTHER TERMS AND CONDITIONS
A. Except as herein provided, AUTOTOTE shall be under no obligation to
furnish SERVICES to OWNER in excess of those specified herein, nor
shall OWNER be entitled to additional SERVICES unless a supplementary
agreement is entered into between the parties, providing for the
desired additions, upon terms acceptable to both parties.
B. OWNER shall notify AUTOTOTE in writing of the operating days allowed
to it by the appropriate governmental authority each year during the
term of this Agreement at least ninety (90) days prior to the start of
such operating days and will not change, without the written consent
of AUTOTOTE, such dates including the number of performances,
including matinees if applicable, and the beginning and closing dates
of any performances. AUTOTOTE shall have the right to remove any of
its personnel, materials and equipment at any time during the term of
this Agreement when wagering is not scheduled at the FRONTON but no
removal shall in any way effect AUTOTOTE'S obligation, subject to
ninety (90) days written notice, to return the necessary materials and
equipment and reinstitute the SERVICES for operation on all wagering
days at the FRONTON, provided such wagering days fall within the
beginning and closing dates of any performances as previously notified
and herein specified. If during any scheduled operating period
wagering does not, for any reason other than a default by AUTOTOTE,
commence as scheduled, or having commenced, is interrupted, AUTOTOTE
shall have the right to remove its personnel, materials and equipment
from the FRONTON. In such case, AUTOTOTE shall be obligated to
reinstitute the SERVICES at the FRONTON no later than sixty (60) days
after receipt by AUTOTOTE of written notice that wagering is to
commence or resume and the original closing date of the performances
may at OWNER'S option, be extended by the number of performances that
wagering did not take place in accordance with the original schedule.
C. AUTOTOTE guarantees and warrants that the Totalisator System utilized
by it to perform the SERVICES will be suitable for betting and that it
will operate efficiently and without interruption on all wagering days
for the term of this Agreement; provided, however, that there shall
not be
12
deemed to be a breach of the foregoing guarantee and warranty if
wagering is interrupted for less than thirty (30) consecutive minutes
at any one time on any operating day, or if any interruption in the
function of any component part or unit of the Totalisator System takes
place which does not prevent the efficient operation of wagering on
any wagering day, or if not more than ten percent (10%) of the ticket
issuing machines fail to operate at any one time on any wagering day,
or if the failure of the Totalisator System to operate efficiently or
without interruption shall be due to or result from one or more of the
causes enumerated in paragraph IV(K) hereof, or acts of neglect of the
OWNER, its agents or employees, or of any third party, or for any
other cause not within the control of AUTOTOTE and/or its employees.
If the failure of the Totalisator System to operate efficiently or
without interruption shall be due to any acts other than those
enumerated or referred to by reference in the proceeding sentence, or
other than as a result of the failure of OWNER to perform its
obligations hereunder, then OWNER shall be entitled to liquidated
damages in an amount to be calculated as follows: five (5%) of the
difference between the amount of money handled on the day of such
interruption and the amount of money handled on a comparable day
during the current meeting; in the event there is no comparable day in
the current xxx xxxx meeting, then the amount to be paid by AUTOTOTE to
OWNER shall be five percent (5%) of the difference between the amount
of money handled on the date of such interruption and the amount of
money handled on a comparable xxx xxxx day of the season immediately
proceeding.
D. AUTOTOTE shall not be liable either directly, indirectly or
consequentially for any counterfeit, altered, or illegally printed
tickets. AUTOTOTE shall be liable, however, for all amounts as
branded by the Sell/Cash Terminals on any counterfeit, altered, or
illegally printed tickets on which the branded serial number digits
are identical to those of such tickets. However, AUTOTOTE shall not
be liable for such counterfeit, altered, or illegally printed tickets
arising out of acts by OWNER or its employees or agents, or by failure
of OWNER to provide proper security.
E. If at any time during the term of this Agreement, any kind of a tax,
license, duty, commission or fee shall be imposed upon or levied or
assessed against AUTOTOTE by any governmental or other
13
authority because of the nature of its business, or on the
installation, use or the SERVICES provided under this Agreement, or
the receipt of monies hereunder, AUTOTOTE agrees to give OWNER notice
thereof promptly upon AUTOTOTE'S receipt of same from the governmental
or other authority, and OWNER agrees to pay to AUTOTOTE an amount
equivalent thereto, together with any penalties or interest assessed
thereon, such payment to be made by the OWNER as and when such tax or
fee is assessed. If the OWNER fails to pay any such amounts as
aforesaid, then OWNER shall be charged interest at the rate of two
percent (2%) per month or to the extent allowed by law if less,
starting from the day after the due date, and AUTOTOTE may, by five
(5) days prior written notice to OWNER terminate the Agreement and be
relieved and discharged from any and all further responsibility,
liability, or obligation hereunder. In the event AUTOTOTE terminates
the Agreement as provided herein, the OWNER shall remain liable as
aforesaid for payment of such tax or fee, and any penalty or interest
accrued thereon, or if AUTOTOTE fails to contest the validity of any
such tax or fee after written demand by the OWNER, the OWNER, at its
expense, may contest the validity thereof in the name of AUTOTOTE.
Nothing herein contained shall make the OWNER responsible for federal
or state income taxes of AUTOTOTE by reason of the receipt of payments
hereunder. If, by reason of its use of the SERVICES provided by
AUTOTOTE under this Agreement, the OWNER is assessed or has imposed or
levied upon it any tax or fee by any governmental authority, the OWNER
agrees to pay such taxes or fees directly to the appropriate taxing
authority and also agrees to provide to AUTOTOTE, from time to time as
required by AUTOTOTE, documentation as proof that such taxes or fees
have been paid; but this requirement shall not preclude OWNER from
paying such taxes or fees under protest and thereafter contesting the
validity of their assessment or imposition.
F. In the event that wagering at the FRONTON shall be prohibited or
become illegal by statute or court decision or by action of cognizant
governmental agency, the period of this Agreement shall be deemed to
have terminated as of the date of such prohibition or cessation of
such legal wagering,
14
but without prejudice to the rights of either party up to the date of
termination; provided, however, that in the event the prohibition or
cessation of legal wagering is removed and racing on the
abovementioned premises becomes legal, this Agreement shall be
returned to force intact, subject to availability of personnel and
equipment, for the unused balance of the term of the Agreement. Upon
termination AUTOTOTE shall have the right to remove its personnel,
materials and equipment from the FRONTON.
G. Any charges for work done by AUTOTOTE under any section of this
Agreement, or for additional material or equipment supplied by
AUTOTOTE in accordance with order(s) of the OWNER or his agent, shall
be considered as amounts due to AUTOTOTE from the OWNER in accordance
with Paragraph I(D) hereof.
H. In the event that AUTOTOTE shall default in the performance of any
provision of this Agreement on its part to be performed (except a
breach by AUTOTOTE of the provisions of paragraph IV(C) hereof as to
which the provisions of said paragraph shall apply) and such default
shall not be cured within a period of ten (10) days after written
notice shall have been received by AUTOTOTE specifying such default,
then the OWNER may terminate this Agreement by delivering to AUTOTOTE
written notice of such termination prior to the expiration of thirty
(30) days after the expiration of said ten (10) day period; and in the
event of any such termination AUTOTOTE, at its expense, shall remove
its personnel, materials and equipment from the FRONTON.
I. In the event that the OWNER shall default in the performance of any
provisions of this Agreement on its part to be performed (except a
breach by the OWNER of the provisions of Paragraphs I(D) and IV(E)
hereof as to which the provisions of said paragraphs shall apply) and
such default shall not be cured within a period of ten (10) days after
notice shall have given by AUTOTOTE to the OWNER specifying such
default, then AUTOTOTE may terminate this Agreement by delivering to
the OWNER written notice of such termination prior to the expiration
of thirty (30) days after the expiration of said ten (10) day period;
and in the event of any such termination
15
AUTOTOTE shall remove its personnel, materials and equipment from the
RACETRACK, and the cost of such removal shall be paid for by the OWNER.
J. If it becomes necessary for AUTOTOTE to undertake work or activities, or
purchase or install equipment or materials, which herein are made the
obligations of the OWNER, in order to assure AUTOTOTE'S proper performance
of the Agreement, then any costs incurred by AUTOTOTE as a result of
such work, activities, purchases, or installations shall be considered
as amounts due to AUTOTOTE from the OWNER in accordance with
Paragraph I(D) hereof.
K. It is understood and agreed that, in the event that it is found that any
payments, gratuities, gifts or emoluments were made to officers or
employees or members of their families or associates of OWNER or its
affiliates during the term of their employment or thereafter by AUTOTOTE
for securing this agreement or maintaining this agreement in effect, the
OWNER may, forthwith upon discovery of the same, terminate this agreement
by written notice to AUTOTOTE. The foregoing shall not, however, apply to
Christmas gifts or entertaining of the sort routinely and openly extended
by AUTOTOTE, or other similarly innocent instances of customary social
hospitality or holiday celebration.
L. Failure to perform any provision of this Agreement by either party
hereto shall not constitute a default hereunder if such failure shall be
caused by fire, strike, boycott, picketing, or other industrial
disturbances, riot, civil commotion, theft, vandalism, flood, lightning,
tempest, storm, acts of God, war, acts of war and defense, power failure,
failure of any cable or interference by any government or government
agency.
M. If any of the said sums of money due AUTOTOTE under this Agreement are
not promptly and fully paid when the same individually or severally become
due and payable, or if OWNER becomes insolvent, ceases to do business as a
going concern, a petition in bankruptcy or for arrangement or
reorganization be filed by or against OWNER, the materials or equipment
provided by AUTOTOTE be attached, or a receiver be appointed for OWNER, or
if any proceeding shall be instituted against the materials or equipment
provided by AUTOTOTE under
16
this Agreement upon any other lien or claim, whether alleged to be
superior or inferior toward the lien of this Agreement, or if each and
every stipulation, condition and term of this Agreement are not duly and
fully performed or complied with, the aggregate sum of the minimum annual
amount specified in paragraph I(C) remaining to be paid for the balance of
the term of this Agreement shall become due and payable forthwith, or
thereafter at the option of AUTOTOTE, as fully and completely as if the
said amounts were originally stipulated as due prior to such time,
anything in this Agreement herein to the contrary notwithstanding. In any
of said events AUTOTOTE is authorized and empowered to enter the premises
of the OWNER or other place where AUTOTOTE'S materials and equipment may
be and resume possession of the same without notice or demand or without
legal process, such notice and demand being expressly waived, and AUTOTOTE
may at its option, by suit or otherwise, enforce payment of all due
obligations, plus interest and reasonable attorney's fees, and no suit or
legal proceedings with respect thereto shall be deemed any waiver of said
rights of AUTOTOTE to resume possession of said property as herein
provided.
N. Absent a transfer to any partner of a kind and nature which, were WJA a
corporation and the partner a shareholder, would be void as to creditors
of the corporation, the partners of WJA Realty Limited Partnership (WJA)
shall not be personally liable hereunder, and the private property of the
partners shall not be subject to claims on account of any obligations of
WJA arising out of the transaction evidenced hereby or in connection
herewith and all parties to contracts with WJA agree to look solely to the
assets of WJA for the satisfaction of any claims thereunder.
O. No waiver of any term, condition or obligation of this Agreement or
assent to the breach of any term, condition or obligation shall be
construed by the failure of either party to act in the event the other
party shall be in default of this Agreement, nor shall such failure to act
be construed as assent to any other or future breach of the same or any
other term, condition or obligation of this Agreement. This Agreement
shall not be modified, amended or changed without the prior written
consent of both parties.
17
P. Any notice to be given to AUTOTOTE hereunder shall be duly given by
mailing the same by registered mail addressed to AUTOTOTE at 000 Xxxxxxxx
Xxxx, X.X. Xxx 0000, Xxxxxx, Xxxxxxxx 00000-0000, or such other address as
AUTOTOTE shall specify in writing to the OWNER. Any notice to be given to
the OWNER hereunder shall be duly given by mailing the same by registered
mail addressed to the OWNER at 0000 X.X. 00xx Xxxxxx, Xxxxx, Xxxxxxx
00000, or such other address as the OWNER shall specify in writing to
AUTOTOTE.
Q. Any controversy or claim not settled by the parties arising out of or
relating to this contract, or the breach thereof, shall be settled by
arbitration in accordance with the Rules of the American Arbitration
Association, and judgement upon the award rendered by the Arbitrator(s)
may be entered in any Court having jurisdiction thereof.
R. The remedies expressly provided in this Agreement for breach thereof by
AUTOTOTE or the OWNER shall constitute the sole and exclusive remedies to
the aggrieved party, and all other remedies which might be otherwise
available under the law of any jurisdiction are hereby waived by both
AUTOTOTE and OWNER.
S. This Agreement shall be binding upon and inure to the benefit of
AUTOTOTE and the OWNER and their successors and assigns. No assignment of
this Agreement shall be made without the prior written consent of the
other party, which consent shall not be unreasonably withheld, however,
OWNER herein agrees to any assignment AUTOTOTE may make for the purpose
of obtaining financing with a prime institution on the strength of this
Agreement.
T. OWNER acknowledges that AUTOTOTE provides inter-track wagering services
("ITW Services") to other AUTOTOTE customers. If OWNER desires ITW
Services at the fronton, (Owner Requested ITW Services") AUTOTOTE shall
be obligated to provide such Owner Requested ITW Services at prevailing
market prices for such ITW Services, on terms which will be negotiated in
good faith by both OWNER and AUTOTOTE. In the event that owner negotiates
in good faith (or is ready, willing and able to negotiate in good faith
but is prevented from negotiating by the refusal or inability of AUTOTOTE
to negotiate in good faith) for the
18
provision by AUTOTOTE of such Owner Requested ITW Services, at
prevailing market prices, and in the further event that OWNER and AUTOTOTE
do not reach a written, mutually acceptable agreement with respect to the
provision of such Owner Requested ITW Services, within 30 days after
OWNER's request that AUTOTOTE provide such Owner Requested ITW Services
at the fronton, then OWNER shall be free to enter an agreement with a
party other than AUTOTOTE for such Owner Requested ITW Services without
any further notice and without any liability to AUTOTOTE under this
Agreement.
U. Any provision of the foregoing Agreement to the contrary
notwithstanding, the OWNER and AUTOTOTE agree that this Agreement does
not cover the subject matter of video lottery devices and services
("Video Lottery"). OWNER shall have the absolute right to deal with a
party other than AUTOTOTE for any Video Lottery requirements without any
notice and without any liability to AUTOTOTE under this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers, duly attested, all as
of the day and year first above written.
ATTEST: W.J.A. REALTY LIMITED PARTNERSHIP
D.B.A. MIAMI XXX XXXX
BY
---------------------------------- -----------------------------------
TITLE President
-----------------------------
ATTEST: AUTOTOTE SYSTEMS, INC.
/s/ illegible BY
---------------------------------- -----------------------------------
VICE PRESIDENT
19
MIAMI XXX XXXX
SCHEDULE "A"
Autotrak II Sell/Cash Totalisator System which is installed at Autotote's
Orlando Hub and other equipment residing at Miami Xxx Xxxx consisting of:
Digital VAX Computers*
Disk Units*
Mag Tape Units*
Board Control Units
Color Video Channels
High Speed Line Printers**
Consoles**
Logging Printers**
Tote Control Desk**
Up to 135 Autotrak II Sell/Cash Terminals
(with Brander and Bet Slip Reader in all terminals)
Up to 25 Screen Activated Self-Service AutoVend Terminals (XXX).
For all over 25 SAM's supplied to OWNER by AUTOTOTE OWNER will pay AUTOTOTE
Ten dollars ($10.00) per operating day per terminal in addition to all other
payments.
Up to 5 customer operated voucher dispenser terminals. For all over 5 Voucher
Dispenser Terminals supplied to OWNER by AUTOTOTE OWNER will pay AUTOTOTE Ten
dollars ($10.00) per operating day per terminal in addition to all other
payments.
A minimum of twenty five (25) Tiny XXX Personal Account Touch Screen
Terminals. To be invoiced starting May 17, 1990. Subject to OWNER'S right of
removal as stated in the Agreement.
All existing 9" Lamp Boxes and 9" Dashes
Set of Power Equipment for above Public Display Board
Magnetic Tape Storage Cabinet w/set of Magnetic Tapes to store History of
Performances for 1 Full Year*
Motorola Beeper System with Beepers
Autotrak II Sell/Cash Software*
0 - 00 XXX 000 Amp motor generators
1-30 KVA Kohler Generator
Uninterrupted Power Supply (UPS)
* Equipment installed at Orlando Hub
** Equipment installed at Miami Xxx Xxxx and Orlando Hub
AUTOTOTE RESERVES THE RIGHT TO SUBSTITUTE EQUIVALENT FUNCTION COMPONENTS IN
PLACE OF ANY OF THE ABOVE ITEMS.
20
MIAMI XXX XXXX
SCHEDULE "C"
LINE PRINTER REPORTS
The following reports are provided:
CYCLIC REPORTS (Totals, Odds, Probable Pays)
REFUNDS REPORT
RESULTS AND DIVIDENDS REPORTS
PRICE CALCULATION REPORTS
WILL-PAYS REPORTS (FOR DOUBLE)
TELLER BANK BALANCE REPORT
FINAL TELLER BALANCE REPORTS (with Overs and Shorts)
WINDOW BALANCE REPORTS
WINDOW ALLOCATION REPORTS
PERFORMANCE POOL TOTALS REPORT
PERFORMANCE SALES SUMMARY REPORT
SALES SUMMARY REPORTS (by Pool)
IRS REPORT
CASHED TICKETS REPORT
UNCASHED TICKETS REPORT
CASHING SUMMARY REPORTS (All Cashing Activity)
PERFORMANCE PARAMETERS REPORT
BETTING ACTIVITY BREAKDOWN BY BET TYPE AND TICKET COUNT
WINDOW TRANSACTION REPORTS
* HISTORY REPORTS
SUPPLIED IF APPLICABLE:
ADVANCE POOL TOTALS REPORTS
PURGED TICKETS REPORT (Overage unpaid winners)
FUTURE DAY POOLS REPORT
FUTURE DAY BETTING SUMMARY REPORT
* Teller Histories will be supplied on request for up to an average of
three (3) tellers per performance. Charges will be billed for AUTOTOTE'S
labor for all Teller Histories in excess of that amount.
21
MIAMI XXX XXXX
SCHEDULE "D"
The equipment listed in Schedule "A" annexed shall have the following minimum
capabilities:
1 The central totalisator system shall accurately total the amounts wagered
in the Win, Place, Show, Daily Double, Quiniela, Quiniela Double,
Perfecta, Trifecta, Superfecta, Pick-6 Pools and all other pools in
Autotote's U.S. on-track VAX/Autotrak II program. It shall provide a
record of all such totals and be capable of transmitting to the
appropriate display board(s) at regular intervals the data presently
prescribed for display on such board(s). The system shall be capable of
performing the following functions:
(A) Accepting xxxxxx on a maximum of eight (8) players per game in each
of the pools referred to in paragraph 1 above.
(B) Accepting xxxxxx in any integral multiple of $1 to a maximum of
$1,000. The Pick-6 pool shall consist of only one (1) bet value.
(C) Accepting and storing xxxxxx on each game and pool held or operated
at the site from the time of opening of wagering at the site on the
day such game or pool is held or operated, and ending at the time of
closing of wagering for such game or pool. Also, accepting and storing
xxxxxx for the next day's performance and one additional future game
or pool on a subsequent operating day up until the time of closing of
wagering for such future game or performance.
(D) Providing those reports listed on Schedule "C" attached hereto.
(E) Providing for an accounting of outstanding live tickets as an
integral part of the system during the operating season in which such
outstanding tickets were purchased. At the conclusion of such
operating season, AUTOTOTE shall deliver to OWNER such listing of
outstanding tickets listing serial number, date of purchases, bet
details and value of each such ticket.
(F) Cancelling any ticket prior to the close of wagering of the game for
which the ticket was purchased, and reducing the appropriate pool or
pools by the amount(s) so wagered.
(G) Provide the necessary display indicators to display all information
currently formatted for the public's benefit at the site.
(H) Making available up to six (6) channels of color video out-put to the
OWNER'S closed-circuit TV supplier for use over such network.
(1) Order of finish of the first four (4) players and pay-off prices
for the first three official finishers for the base set amount OR
for $2.00 xxxxxx.
(2) Teller Assignments.
(3) Probable odds for Win and Quiniela pools, also Time of Day, Post
Time, and Minutes to Post.
(4) Probable odds for the Daily Double and Perfecta pools.
(5) Lead runner totals for Trifecta pools.
(6) All-Pay cyclic display, consisting of results and prices for
each game during current performance.
22
(I) Provide update information for the following video display units:
(1) EXECUTIVE INFORMATION CONSOLE - The Executive Information
Console is an additional control console provided to allow a
fronton's management the ability to obtain the most current
information and statistics about the currently running
performance. This console can be used to report a variety of types
of information, such as total money wagered during the performance
or betting totals of a specified game, that may be relevant to
fronton management.
(2) PUBLIC INFORMATION CONSOLE - The Public Information Console is
an additional video display console which would normally be used
at a fronton's public information (non-betting) window. The
console is used to obtain game results and prices from any
previous game during the current season for use in responding to
patrons requests for information.
2. TERMINALS
(A) Each terminal shall be capable of:
(1) Printing and issuing standard length tickets for all pools and
denominations as described in paragraph 1(A) (SCHEDULE "D").
(2) Reading, transmitting to and receiving from the central
totalisator data for betting slips and cashing winning tickets
and branding on such winning tickets their total value and an
integral portion of their unique serial number.
(3) Accommodating up to four compound xxxxxx on each standard length
ticket issued.
(4) Providing status indicators and error messages to terminal
operators.
(5) Providing special terminal functions to the terminal operators
which allow them to report to the system draws or returns of cash
and final cash balance at end of performance, inquire of the
system current cash position and convert their terminal to
calculator mode.
23
