Loading...
HomeMy WebLinkAboutR-03-1008J-03-792 9/10/03 RESOLUTION NO. yJ 3 —1008 A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, BETWEEN THE CITY OF MIAMI ("CITY"), RACEWORKS, LLC ("LICENSEE"), AND CONCORDE CRUISES, INC. ("CONCORDE"), RELATED TO THE GRAND PRIX AMERICAS EVENTS HELD IN DOWNTOWN MIAMI, FOR AN INITIAL PERIOD OF ONE YEAR, IN A TOTAL AMOUNT NOT TO EXCEED $50,000. BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The City Manager is authorizedll to execute an Agreement, in substantially the attached form, between the City of Miami, Raceworks, LLC, and Concorde Cruises, Inc., related to the Grand Prix Americas events held in Downtown Miami, for a period of one year, for a total amount not to exceed $50,000. 1� The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to those prescribed by applicable City Charter and Code provisions. �� yT i CITY COMMISSION MEETING OF SPP 1 1 2003 Section 2. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.21 PASSED AND ADOPTED this 11th ATTEST: 9'�� �- a, - a'2"� PRISCILLA A. TROMP ON CITY CLERK day of September , 2003. EL A. DIAZ, MAYO 7507:EW:BSS If the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. Page 2 of 2 sJ3-1008 AGREEMENT This agreement ("Agreement") dated August _, 2003, by the City of Miami ("City"), a municipal corporation for the State of Florida, Raceworks, LLC ("Raceworks"), a Delaware corporation authorized to do business in the State of Florida, and Concorde Cruises, Inc., a South Dakota corporation authorized to do business in the State of Florida ("Concorde"). RECITALS: WHEREAS, Bayfront Park Management Trust ("Trust") is a limited agency and instrumentality of the City and is authorized to enter into agreements for the use of Bayfront Park ("Park"); and WHEREAS, the Trust entered into a Use Agreement ("Use Agreement") on June 25, 1997, for the Concorde's predecessor -in -interest, Bayfront Ventures, to use the north dock located adjacent to the Park for dockage for and access to its gaming vessel, the Casino Princessa ("Vessel"); and WHEREAS, pursuant to the Use Agreement and the amendments thereto, the Trust also granted to Concorde use of a de minimus portion of the Park adjacent to and lying west of the north dock ("Adjacent Land"); and WHEREAS, the City, the Trust and Concorde's predecessor—in-interest, Bayfront Ventures, also entered into an agreement on December 8, 1998 ("Parking Agreement"), which was further amended by the parties on June 27, 2002, which also granted Concorde the right to conduct a valet parking concession in Park; and WHEREAS, the City, the Trust, and Raceworks entered into a Revocable License Agreement ("License Agreement") dated May 15, 2002, for Raceworks to conduct motor sport races in Downtown Miami and Raceworks has a scheduled an event to take place at and around the Park from September 26-28, 2003; and WHEREAS, in the License Agreement, Raceworks agreed to make arrangements with entities having legal interest in the public property located within the perimeter of the area where its racing events and support events would take place ("Race Perimeter") and it also agreed to provide pedestrian access along all public sidewalks adjoining private business; and WHEREAS, Concorde warrants that it has a claim for damages against the City, Trust and Raceworks as a result of the 2002 Grand Prix Americas races that occurred October 4-6, 2002 (2002 Race Event Weekend); and WHEREAS, Concorde further alleges that as a result of the Raceworks' activities in and around the Park during September 25-29, 2003 ("2003 Race Event Weekend"), it will be not be able to use the north dock for its vessel, it will lose access to the Adjacent Land and parking, and its maximum loss of gross revenue will exceed $100,000; and 1 K#03-669 o)3-1008 WHEREAS, without the City or Raceworks admitting to any liability, the parties wish to: 1) memorialize their agreement to compensate Concorde for the losses it alleges it suffered as a result of the 2002 Race Event Weekend and may suffer as a result of the 2003 Race Event Weekend; 2) to generate Gross Revenue, as defined below, for the Vessel to mitigate damage from such losses and 3) to terminate further controversy respecting all claims for losses that Concorde has heretofore asserted or that it or its representative might or could hereafter assert because of the 2002 and 2003 Grand Prix Americas races. NOW, THEREFORE, in consideration of the promises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Recitals. Each and all of the foregoing recitals are true and correct and are incorporated herein by reference. 2. Consideration. In consideration of Concorde executing the release, attached hereto as Exhibit A and incorporated by reference into this Agreement, the City and Raceworks agree to compensate Concorde to the extent it does not receive a minimum of $100,000 in Gross Revenue as a result of or in connection with the 2003 Race Event Weekend (previously defined as September 25-29, 2003). Concorde agrees that, in consideration of this Agreement, neither the City, its agencies and instrumentalities (collectively "City Agencies"), nor Raceworks shall be liable for any other damages that may be incurred by Concorde as a result of the 2002 and 2003 Race Event Weekends. Concorde does not hereby waive or release any liability against the City Agencies or Raceworks for their respective negligence, gross negligence or intentional torts that result in injury to persons or damage to property as a result of race -related activities. that: 3. Concorde's Representations and Warranties. Concorde represents and warrants (a) Concorde has suffered substantial economic loss because of the 2002 Race Event Weekend and that it will suffer further economic loss because of the 2003 Race Event Weekend. (b) Concorde's average weekly Gross Revenue for the past two years exceeds $200,000. (c) Its loss of revenue during the 2002 and 2003 Race Event Weekend ("collectively "Races") has been or will be caused primarily by the Races. 4. City's and Raceworks' Obligations. To the extent that use of the Vessel during the 2003 Race Event Weekend does not result in Concorde receiving $100,000 or more in Gross Revenue, then the City and Raceworks shall have the following obligations to compensate Concorde ("Obligations"): (a) In the event that, Concorde does not receive a minimum of $50,000 in Gross Revenue, then: 2 K#03-669 r 3_ 100 8 (1) The City's Obligation shall be the difference between $50,000 [the City's maximum potential Obligation hereunder] and the amount of Gross Revenue that Concorde receives as a result of or in connection with the 2003 Race Event Weekend. (2) Raceworks' Obligation shall be $50,000. (3) In no event shall the City's Obligation be more than $50,000. Except for any amounts due as a result of a violation of Section 10 entitled "Removal of Barricades," in no event shall Raceworks' Obligation be more than $50,000. (4) Example No. l: If as a result of or in connection with the 2003 Race Event Weekend, $40,000 in Gross Revenue is generated from use of the Vessel, then the City's Obligation shall be $10,000 and Raceworks' Obligation shall be $50,000. (b) In the event that, as a result of, or in connection with, use of the Vessel during the 2003 Race Event Weekend, Concorde receives a minimum of $50,000 in Gross Revenue, but does not receive more than $100,000 in Gross Revenue, then: (1) The City shall have no Obligation. (2) The amount of Raceworks' Obligation shall be the difference between the amount of Gross Revenue above $50,000 received by Concorde and $100,000. Therefore, Raceworks' Obligation shall be calculated as the difference between $100,000 and the amount of Gross Revenue that Concorde receives above $50,000. However, except for any amounts due as a result of a violation of Section 10 entitled "Removal of Barricades," in no event shall Raceworks' Obligation be more than $50,000 (3) Example No. 2. If as a result of or in connection with the 2003 Race Event Weekend, Concorde receives $50,000.01 in Gross Revenue from use of the Vessel, then the City's Obligation shall be $0 and Raceworks' Obligation shall be $49,999.99. (c) In the event that Concorde receives more than $100,000 in Gross Revenue as a result of or in connection with use of the Vessel during the 2003 Race Event Weekend, then the City's Obligation shall be $0 and Raceworks' Obligations shall be $0, unless Raceworks fails to remove barricades as provided in Section 10 entitled "Removal of Barricades." Example No. 3. If as a result of or in connection with the 2003 Race Event Weekend, Concorde receives $110,000 in Gross Revenue, then the City's Obligation shall be $0 and Raceworks' Obligation shall be $0. 3 K#03-669 a j 3— 10 0 8 5. Gross Revenue. Gross revenue ("Gross Revenue") shall be defined as the total amount of money, exclusive of the payment of the City's or Racework's Obligations, or other consideration received by Concorde, before taxes and any other deduction, that is received as a result of or in connection with the 2003 Race Event Weekend. During the 2003 Race Event Weekend, Raceworks shall use its best efforts to provide access for the invitees to and employees of Concorde's Vessel and to assist in marketing the Vessel's availability during the 2003 Race Event Weekend. Through Raceworks' marketing efforts, Raceworks shall collect the Gross Revenue from sales of tickets for admittance onto the Vessel, use of the Vessel for private parties, and any and all other uses of the Vessel during the Race Event Weekend. Five days in advance, Raceworks shall advise Concorde that it has sold a minimum of 200 tickets for admittance onto the Vessel as a viewing platform for the race only or that the Vessel will be used, at Raceworks' sole and exclusive cost and expense, for private parties during the Race Event Weekend. Admittance unto the Vessel shall not require Concorde to cruise or sail the Vessel. Raceworks shall transmit to Concorde any revenue that its receives for use of the Vessel during the 2003 Race Event Weekend. Raceworks shall submit to the City any and all documentation indicating the amount of revenue transmitted to Concorde. All of the revenue collected by Raceworks in connection with or as a result of use of the Vessel during the 2003 Race Event Weekend shall be paid to Concorde, shall be considered Gross Revenue and shall be used to reduce the amount of the City's and Raceworks' respective Obligations. Raceworks shall provide supporting documentation including, but limited to, sales journals relating to ticket sales, vouchers, class and cost of tickets sold and any other appropriate records as may be required by good accounting practices. 6. Concorde's Obligations: (a) Two (2) days after the execution of this Agreement, Concorde shall deliver to Raceworks its mailing lists so that Raceworks shall contact its patrons to advise them about 2003 Race Event Weekend activities and the Vessel's availability during the 2003 Race Event Weekend. Raceworks agrees to keep said lists confidential and acknowledges the sensitivity of this information which constitutes "trade secrets" under applicable law. (b) Ten (10) days after the 2003 Race Event Weekend, Concorde shall provide the City and Raceworks with a notice of its intent to exercise its rights to payment of the Obligations ("Notice for Payment ") which shall be accompanied by a certified financial statement, executed by its Chief Financial Officer, indicating the amount of Gross Revenue it received as a result of or in connection with the use of the Vessel during the 2003 Race Event Weekend. It shall be accompanied by any such documents that may be necessary to support the amount of Gross Revenue indicated in its Notice of Payment including, but not limited to, a ticket manifest, sales, journals relating to ticket sales, complete box office statements of tickets sold, passenger counts, class and cost of tickets sold and any other appropriate records as may be necessary by good accounting practices to account for the Gross Revenue received by Concorde as a result of or in connection with the Race Event Weekend. 4 K#03-669 ij 3 - 100 8 (c) Consistent with Section 5 herein entitled "Gross Revenue," during the 2003 Race Event Weekend, Concorde shall make its Vessel available for the purposes of being chartered for private parties, for viewing the race or for race -related events ("Charters"). In order to reduce or eliminate the payment of the Obligations and the potential liabilities of the City Agencies and Raceworks, Concorde has agreed to assist Raceworks in developing potential Charters to assist in creating Gross Revenue for the Vessel as a result of or in connection with the 2003 Race Event Weekend. (d) In the event that Concorde receives more than $200,000 in Gross Revenue during the 2003 Race Event Weekend, then Concorde agrees to pay Raceworks the Gross Revenue above $200,000. 7. Time for Payments. The City and Raceworks, individually, shall have thirty (30) days after the receipt of Concorde's Notice for Payment of Damages to pay its respective Obligations ("Time for Payments"). 8. Audit. The City may, at reasonable times and for a period of up to three (3) years following the expiration of the term of this Agreement audit, or cause to be audited, the books and records of the party or parties responsible for providing information regarding the amount of Gross Revenue received by Concorde during the 2003 Race Event Weekend. All such books and records pertaining to the amount of Gross Revenue received by Concorde shall be kept at its principal place of business in Miami -Dade County. 9. Trust Deposit to Secure Raceworks' Obligation. To secure Raceworks' Obligations, Raceworks shall provide, within five (5) days after the execution of this Agreement, proof of its deposit of $50,000 in a trust account to be held by the law firm of Greenberg, Traurig, et al. ("Firm"), in its Miami, Florida offices. The Firm shall hold the $50,000 deposit until Concorde sends a notice to the Firm that Raceworks' Obligations have been met. 10. Removal of Barricades. One (1) day after the last race occurs during the 2003 Race Event Weekend, Raceworks agrees to remove all barricades that impede the pedestrian and vehicular access to Concorde's vessel. If the barricades are not removed by Tuesday, September 30, 2003, at 12:01 a.m., then, starting that Tuesday, Raceworks shall pay to Concorde $20,000 per day until such barricades are removed. 11. Interest and Expenses of Enforcement. Any sum required to be paid by any party pursuant to the terms hereof shall bear interest at the interest rate, in the amount of one percent 1% per month, from the Time of Payment until paid in full. 12. Attorneys' Fees and Costs. Each party agrees to pay its own costs and expenses incurred in enforcing any rights or remedies under this Agreement, including fees and expenses of any appeals, regardless of whether any specific legal proceedings should be commenced or initiated. 13. No Waiver. No extension, substitution, modification, amendment to any provision of the Agreement shall waive any of the provisions hereof or discharge any party from 5 K#03-669 )3-1008 any obligation herein contained in whole or in part, except to the extent expressly provided by the parties in writing. 14. Amendments, Etc. This Agreement constitutes the sole and entire agreement between the parties hereto. No amendment or waiver of any provision of this Agreement nor consent to any departure by any party therefrom shall in any event be effective unless the same shall be in writing and signed by all parties, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which such waiver or consent has been given. 15. Notices. All notices, offers, acceptances, rejections, consents, requests and other communications hereunder shall be in writing. All notices provided for herein shall be sent certified mail addressed to For Raceworks To: Chuck M. Martinez President & General Manager Grand Prix Americas 232 Andalusia Ave, Suite 360 Coral Gables, FL 33131 With copies to: For City City Manager City Attorney City of Miami City of Miami, 350 Pan American Drive 444, S.W. 2nd Avenue, Suite 945 Miami, Florida 33133-0708 Miami, Florida 33130 For Concorde Concorde Cruises 3050 Biscayne Blvd, Suite 1006 Miami, Florida 33137 Attn: Jerry Baum Phillip M. Hudson III Lucio, Bronstein, Garbett, Stiphany & Allen,P.A. Brickell Bayview Centre 80 S.W. Eighth Street Suite 3100 Miami, Florida 33130 Notice shall be completed by depositing the same in a letterbox or other means provided by the United States Post Office for the posting of mail addressed to the party with the proper amount of postage affixed thereto. Actual receipt of notice shall not be required to effect notice hereunder, unless otherwise provided herein. 16. Miscellaneous. (a) Time is of the essence hereof with respect to the Obligations hereunder. (b) If any term, provision, covenant or condition hereof or any application thereof should be held by a court of competent jurisdiction to be invalid, R K#03-669 ri 3 _ 100 8 void or unenforceable, all terms, provisions, covenants and conditions hereof, and all applications thereof not held invalid, void or unenforceable shall continue in full force and effect and shall in no way be affected, impaired or invalidated thereby. (c) The use of the words "herein", "hereof', "hereunder" and any other words of similar import refer to this Agreement as a whole and not to any particular paragraph, subparagraph or other subdivision of this Agreement unless specifically noted otherwise in this Agreement. (d) The title of this Agreement and the headings of the paragraphs of this Agreement are for convenience of reference only, and are not to be considered a part of the substance of this Agreement, and shall not limit or expand or otherwise affect any of the terms hereof. (e) In this Agreement, wherever the context so requires, the neuter gender includes the masculine and/or feminine gender, the singular numbers include the plural, and the plural numbers include the singular. (f) This Agreement does not create a continuing obligation. However, it shall be binding upon its successors and representatives and shall inure to the benefit of and be enforceable by the parties and its successors for as long as any party, respectively, have obligations, rights or duties hereunder. (g) THE CITY, RACEWORKS AND CONCORDE DO HEREBY KNOWINGLY VOLUNTARILY, INTENTIONALLY, UNCONDITIONALLY AND IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PERSON OR PARTY AND RELATED TO THIS TRANSACTION, THIS IRREVOCABLE WAIVER OF THE RIGHT TO A JURY TRIAL BEING A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THIS AGREEMENT. (h) IN THE EVENT OF ANY LEGAL PROCEEDING WITH RESPECT TO ANY MATTER CONNECTED WITH THIS AGREEMENT, EACH PARTY HEREBY AGREES THAT THE LOCATION OF ANY SUCH LEGAL PROCEEDING SHALL BE MIAMI-DADE COUNTY, FLORIDA. IN SUCH EVENT, EACH PARTY IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE STATE OR FEDERAL COURTS LOCATED IN MIAMI-DADE COUNTY, FLORIDA, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH OR THEREWITH, OR ANY COURSE OF CONDUCT, 7 K#03-669 p ;J3-1008 COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY, AND EACH PARTY HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MUST BE BROUGHT AND/OR DEFENDED IN SUCH COURT; PROVIDED, HOWEVER, THAT MATTERS WHICH ARE UNDER THE EXCLUSIVE JURISDICTION OF THE FEDERAL COURTS SHALL BE BROUGHT IN THE FEDERAL DISTRICT COURT IN MIAMI- DADE COUNTY, FLORIDA. EACH PARTY HEREBY CONSENTS TO SERVICE OF PROCESS BY ANY MEANS AUTHORIZED BY THE APPLICABLE LAW OF THE FORUM IN ANY ACTION BROUGHT UNDER OR ARISING OUT OF THIS AGREEMENT, AND EACH PARTY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT. (i) Release of Liability. In the event that Concorde fails to execute the release attached hereto as Exhibit A, then this Agreement shall be null and void for failure of consideration. 17. Default. Any party who fails to comply with the terms of this Agreement shall be in default. 18. Cancellation of the Race. Raceworks shall notify the City and Concorde as soon as possible if the Race Event Weekend is canceled. (a) If Raceworks notifies Concorde more than seven (7) days in advance of the Race Event Weekend, then the City and Raceworks shall have no Obligations. (b) If Raceworks does not notify Concorde more than seven (7) days in advance of the Race Event Weekend, then Raceworks' Obligation shall be $50,000 and the City shall have no Obligation. 19. Survival. The provisions of the attached release shall survive the termination of this Agreement. 18. Termination of Agreement. This Agreement shall automatically terminate one year after the 2003 Race Event Weekend occurs, regardless of whether or not Concorde has exercised its rights pursuant to this Agreement. In addition, this Agreement shall terminate prior to the termination date, if the following occurs: E:3 K#03-669 dA — 1Qv8 (a) Concorde fails to execute the attached release by the time that the parties execute this Agreement; or (b) there is an Event of Default, as defined in the Use Agreement; or (c) there is an Inability to Use Facility, as defined in the Use Agreement; or (d) the Use Agreement is terminated prior to the 2003 Race Event Weekend. (e) Concorde's Vessel is not in a condition to operate for private parties, for viewing the race or for other race -related events during the 2003 Race Event Weekend. Five (5) business days prior to the 2003 Race Event Weekend, the City agrees to notify Concorde if the Trust determines that Concorde is in default of either the Use Agreement or the Parking Agreement, so that Concorde will have the opportunity to cure the default(s) prior to the 2003 Race Event Weekend. 19. Covenants of Good Faith. Each party hereby agrees to perform, in good faith, the respective terms and conditions contained in this Agreement. [INTENTIONALLY LEFT BLANK] 6 K#03-669 'M - 1008 IN WITNESS WHEREOF, each party has duly executed this Agreement as of the day and year first above written. Priscilla A. Thompson City Clerk Approved as to risk requirements: Diane Ericson, Director Risk Management Witnesses: '4WWNo 10 w.�X !11i-� Print Name: C City of Miami City of Miami, a municipal corporation of the State of Florida Attest: Joe Arriola City Manager Approved as to form and correctness: Alejandro Vilarello City Attorney Raceworks Raceworks, LLC, a Delaware corporation authorized to do business in the State of Florida 4%�kAULA 4ft�k--`,� �— Print name: Print Name:�� s�� (Corporate Seal) Greenberg Traurig, et al. as to the deposit requirement: Print Name: Print Title: Witnesses: Print Name: A r Le r Print Titley -p— +e Aud1-110Y Concorde Cruises Concorde Cruises, Inc. a South Dakota corporation authorized to do business in the State of Florida Jerryum, resi ent (Corporate Seal) 10 �A-1.008 EXHIBIT A RELEASE OF ALL CLAIMS THIS INDENTURE WITNESSETH that in consideration of $10.00 and other good and valuable consideration, Concorde Cruises, Inc. ("Concorde"), a South Dakota corporation, releases and forever discharges the CITY OF MIAMI and RACEWORKS, LLC, their agencies, agents, servants, employees, contractors, lessees, joint ventures, etc., and any other person, firm or corporation, charged or chargeable with responsibility or liability, their respective heirs, representatives and assigns, from any and all claims, demands, damages, costs, expenses, loss of services, actions and causes of action (except as provided below) whether in the nature of subrogation or otherwise, arising from any act or occurrence on account of or that may hereafter be sustained in consequence of the Grand Prix Americas race that occurred October 4-6, 2002 (2002 Race Event) and the Grand Prix Americas race that will occur September 26-28, 2003 (2003 Race Event) (collectively the "Races"). Concorde does not hereby waive or release any liability against the City or Raceworks for their respective negligence, gross negligence or intentional torts that result in injury to persons, or for damage to property as a result of race - related activities, for failure to pay the amounts due pursuant to the Agreement between the City of Miami, Concorde Cruises, Inc., and Raceworks, LLC dated September _, 2003). To procure payment of the said sum, Concorde hereby declares that it is sui juris; that no representations about the nature and extent of said injuries or damages made by any attorney or agent of any party, hereby released, nor any representations about the nature and extent of said injuries or damages made by any attorney or agent of any party hereby released, nor any representations regarding the nature and extent of legal liability or financial responsibility of any of the parties hereby released, have induced it to make this settlement; that in determining said sum there has been taken into consideration not only the ascertained injuries and damages, but also the possibility that the injuries sustained may be permanent and progressive and recovery therefrom uncertain and indefinite, so that consequences not now anticipated may result from the said Races. Concorde hereby agrees that, as a further consideration and inducement for this compromise settlement, this settlement shall apply to all unknown and unanticipated injuries and damages resulting from said Races, casualty or event, as well as to those now disclosed. Concorde understands that the parties hereby released admit no liability of any sort by reason of said Races and that said payment and settlement in compromise is made to terminate further controversy respecting all claims for damages that it has heretofore asserted or that it or its representative might or could hereafter assert because of the said Races. K#03-669 ;J3-1.008 Concorde further understands that such liability as it may or shall have incurred, directly or indirectly, in connection with or for damages arising out of the incident to each organization released and discharged of liability herein, and to any other organization, is expressly reserved to each of them, such liability not being waived, agreed upon, discharged or settled by this release. In consideration of the aforesaid consideration, Concorde agrees to indemnify and save harmless the above-named parties and they are hereby released of and from any claims and all liens including any subrogation claims arising out of the aforesaid incident. SIGNED AND SEALED this day of September 2003. Witnesses: Printed name Printed name: Corporate Secretary Printed name: (Corporate Seal) K#03-669 2 Concorde Cruises, Inc. a South Dakota corporation authorized to do business in the State of Florida Jerry Baum, President °J3-1008