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HomeMy WebLinkAboutExhibit ASUPER YACHT VENUE AGREEMENT This SUPER YACHT VENUE AGREEMENT ("Agreement") is enteredinto by and between FLAGSTONE ISLAND GARDENS, LLC, a Delaware limited liability company ("Flagstone"), 'YACHTING PROMOTIONS, INC:, a Florida corporation ("YPI"), on this a5`'day of CaOtliek, , 2013., RECITALS A. Flagstone is a party to an agreement to enter into groundlease with the City of Miami, as lessor (the "Ground Lease") for the development of the project known as Island Gardens at Watson Island, Miami, Florida, on 10:79 acres of land on the Northwest quadrant of Watson Island, Miami, Florida (the "Upland Parcel") and :13.5. acres of sttbinerged land adjacent to the :Upland Parcel, (together, the "Property"), as more fully described in the legal descriptions, attached hereto as Exhibit "A'; B. YPI and the Florida Yacht Brokers, Inc:,: a Florida nonprofit corporation ("FYBA"), have been world leaders in boat, show productions and have -made the annual Yacht and: Brokerage show in Miami Beach a world famous and well regarded boat shave "Miatnt Boat Show"); C. The parties desire to secure an additional venue during the same period as and as an additional venue of the Miami Boat Show in the first ;quarter: of each .calendar year at. a marina to be constructed by Flagstone on the Property (the "Marina") with such. venue to be principally focused on marketing "Super Yachts" coznrnencing after the date of completion: of the Marina (the "Event"); and D. Such additional venue may be referred to as the "Super Yacht Miami Show". NOW THEREFORE, in consideration of the above recitals, the: terms and conditions .her®f and othergood. and valuable: consideration, the, parties hereby- agree to the following terms and conditions: 1. Name and Presentation, YE shall own, maintain and control the exclusive rights of ownership to the :name "Super Yacht Miami Show" and all other names, trade names,. marks, trademarks, logos, artwork, domain names and other intellectual property and promotional: materials usedfrom time to time in connection with the Event and the exclusive right to conduct and present the Event. 2, Use of Premises'. Flagstone shall provide the ""Show .Site" to YPI for its exclusive use of and during the Event (including 2 set up days, 5 show days and 2 breakdown days, being 9 consecutive days in the first quarter of each year (normally in February) (each an "Event Period"). The Evert Period shall be as reasonably determined by YPI and provided by written notice to Flagstone each year at least 90 days prior to each Event Period. The Show Site for each Event shall include the dockage and other marina space, as well as space in the Upland Parcel for exhibition space, concessions, parking and storage, all as shown on a site plan similar to Exhibit 13 attached hereto as determined by YPI and provided to Flagstone in writing eaclh',year at least 90 days prior to the Event Period. "Exclusive use" shall mean YPI and shall have the exclusive right to use and determine the occupancy of the Show Site during the Event Period and the control of any displays, exhibits, concessions or ,promotional materials placed in or at the Show Site during the Event Period, including all vessels docked therein. Flagstone agrees to cause the Show Site to be ready for use during each Event Period and shall have the responsibility of maintaining any existing or anticipated physical structures or property contained therein during each Event Period, including without limitation outside lighting, docks, electrical and water systems and parking lots, unless damaged by YPI or any of its respective employees, invitees, exhibitors or agents. 3. Term. This Agreement _shall commence on the date hereof and continue thereafter . It is currently contemplated that the fist Event may be held in February, 2015, but this is contingent upon the Marina being completed and fully operational -at least 120 days prior to the Event. This Agreement may be terminated by YPI upon at least ninety (90) days prior written notice if YPI determines, in its sole discretion, it is not commercially reasonable to continue producing the Event... 4. Production.. YPI shall .produce the Event and shall be responsible for any and all costs associated with the production of the Event. YPI shall, at its expense, cause all boats, dispIays, exhibits, temporary improvements and materials associated with each Event to be removed from the Show Site prior to the end of the related Event Period. 5. Rental. YPT shall pay Flagstone a. fee for each Event equal to 6. The First Event Credit. The Dockage Fee for the first Event held •shall be paid 7. Economic Suspension. .If YPI determines in its sole discretion that an anticipated Event may not be commercially reasonable, it may cancel an Event by providing written notice to Flagstone not less than 90 days prior to the commencement of the Event Period, and YPI shall be relieved of any obligation to hold such Event or pay Flagstone any Dockage Fees related to such Event: 8. .Exclusive Period. Flagstone agrees that it shall not .hold, produce or permit on the Property any competing events such as boat shows or other similar promotions or exhibitions in which Super Yachts are displayed or materially promoted during any Event Period or periods extending 60 days prior and 60 days after' each Event Period. 10. Promotional Event. Flagstone and YPI shall plan and hold a mutually acceptable publicity event during the 2014 Miami Boat Show to promote the Marina and the anticipated new venue for Super Yachts at the Marina during the Miami Boat Show. IL insurance. YPI shall be responsible for obtaining: insurance, for the Event as determined by it in its sole discretion at their own expense, Flagstone shall not be responsible to YPI for any loss or damage to any property .of YPT or any property leased or contracted for by YPI for any reason, including but not limited to theft and .damages resulting from construction, on the Property: In addition, YPI is required to provide and keep in force during the period of the /event, the following insurance: (i) 'Worker's compensation and employer's liability insurance covering its employees in accordance with the statutes, rules and regulations promulgated by Florida's governing authorities. (B) Commercial general liability insurance including Products/Completed Operations, Personal and Advertising injury, with a per occurrence limit of not less than $1 000,000, $2,000,000 aggregate limit, with umbrella coverage with an aggregate limitation of $10,000,000. :Certificates of insurance (iii) provided by. YPI shall name Flagstone, Flagstone Property Group LLC, a Delaware limited liability company, Flagstone Miami Holdings, LLC, a Delaware limited liability company and Flagstone_ Development Corporation,: a Delaware corporation and the. ff.of Miami, FL as additional insureds and loss payees: C'c t' (iv) Certificates of insurance must be provided to Flagstone at least thirty (30) days prior to each Event. 12. Compliance; (a) YPI shall be solely responsible for ensuring that each Event is in compliance with all applicable governmental authorities, ems; codes and rules and regulations: YPI shall also be solely responsible for assuring that all ramps, stairs and similar devices within or leading to the exhibited yachts shall be of type normally suited for such purposes and shall comply with all applicable building codes and safety standards, Neither Flagstone nor its duly appointed representatives shall be liable or responsible for any injury to YPI or its employees, or its guests or visitors while within the Property,; nor shall said parties be liable for the loss of any goods or property from any cause whatsoever while the same :are: in transit to or from the Event or while they are. in the Show Site, except if any such injury or loss of any goods, or property arises from the gross negligence, intentional misconduct or criminal acts or. omissions of Flagstone, the City of Miami, or any of their respective employees, agents or representatives in the performance or breach of this. Agreement. (b). All applicable electrical, fire and health department rules and regulations and all city, state and federal laws shall be complied with: YPI shall be responsible for compliance withlocal fire codes, including but not limited: to the presence of the minimum; required fully charged fire extinguisher per area. YPI is responsible for any charges incurred for fire;inspection and re-inspection,:following failure tQ meet. fire codes. 13. Force; Majeure. Flagstone shall :haveno liability to ?PI whatsoever for any matter or thing resulting from acts of God,including, without limitation, fie, flood, earthquakes, hurricanes and tornadoes or other events reasonably beyond the control of Flagstone including, without limitation, war, government regulation, disaster, strikes, civil disorder,. curtailment of transportation facilities, or infectious disease, except that if such events prevent YPI. from producing any Event, Flagstone shall return to YPI Dockage Fees or other payments made by YPI to Flagstone with respect to such Event. 14..Release. YPI releases Flagstone, its contractors and their respective directors, officers, employees, agents and members, and each of them, from any claims, liabilities, losses, damages, costs or expensesrelating to or arising out of any injury to any personnel of YPI or to any other person or any loss or damage to any property of YPI or any 'other property where such injury, loss, or damage is incident to, arises out of, or is in any way related to YPI's participation in an Event, and YPI shall be responsible for any such injury, loss, or damage, and any expenses relating thereto; provided, however, this release shall not apply to any such claims, liabilities, losses, dain.ages, costs or expenses relating to or arising from the gross negligence, intentional misconduct or criminal acts .or omissions of Flagstone, its contractors, or any of their respective directors, officers, employees, agents or members: 15. Indemnity. (a), YPI ("Indeirmitor"), without regard to assignment, lease, sublease or dealer occupancy shall indemnify, hold harmless, defend and reimburse Flagstone and its managers, contractors, directors, officers, employees,: agents and members, and each of them ("indemnities"), from and against any and all actions, causes of action, claims, demands, liabilities, losses, damages, costs or expenses, of whatever kind in nature, including judgments, interest and reasonable attorneys' fees, cost of litigation, and all other costs, expenses and charges,' which indemnities incur or may incur for any reason resulting front, relating to or arising out of YPI's participation in the Event, including but not limited to; (i) the gross negligence, intentional misconduct or criminal acts or omissions of Inderi nitor in the performance or breach of this Agreement; (ii) the breach by I'ndemnitor and/or its contractors, their directors, officers, employees, or agents of any representation or covenant set forth herein; (in) any injury to or death of any persons, or any loss of,; through theft or otherwise, or damage to, property arising in any way in connection with the use and enjoyment by Indemnitor, dr any other person or entity present .with the permission, express or implied, of lndemnitor of the Show Site, (iv) use of equipment, devices furnished to or used by any person in connection with the Event, provided that the foregoing indemnification shall not apply where the damage, injury or loss results solely from the negligence,: gross negligence or misconduct of Flagstone, or any of its officers, employees, representatives or contractors. (b) Flagstone shall indemnify; hold harmless, defend and reimburse YPI, its affiliates and their respective officers, employees, managers, - directors, members, contractors, agents and representatives, and each of them, from and against any and all actions,causes of action, claims, demands, liabilities, losses, damages, costs and expenses of whatever kind or nature, including judgments, interests and respective attorneys' fees, costs of litigation, and all other costs, expenses and charges which such indemnities incur or. may incur for any reason resulting from,relating to, or arising out of (i) the gross negligence, intentional misconduct or criminal acts or omissions of Flagstone or any of its employees,' agents' or representatives in the performance or breach of this Agreement, or (ii) the breach by Flagstone or any of its employees, officers, directors, employees or agents of any representation, warranty or covenant of Flagstone set, forth herein. 1.6. Arbitration. Except for claims seeking injunctive or equitable relief, any controversy or. claim arising out of or relating to this Agreement or a breach thereof, shall be settled by binding arbitration in Miami, Florida (or such other location as may be agreed to by the parties) to be administered by the American Arbitration Association ("AAA") in accordance with its then -prevailing Commercial Rules of Arbitration. YPI and Flagstone shall each . select an arbitrator from a list provided by the AAA that ismutually satisfactory to them;' If YPI and Flagstone are unable to agree on an arbitrator, YPT and flagstone shall each: choose an arbitrator from the list provided by the AAA. The two arbitrators so selected shall then select a third arbitrator mutually satisfactory to them' from the .listprovided by the AAA.. The single arbitrator so :selected. by the aforesaid procedure shall hear the dispute and decide it. The arbitrator selected shall not be a present: or former officer, employee, consultant or representative of any of the parties or any of their affiliates. The arbitrator shall have a background and training in the general areas of law covered by this Agreement. The arbitrator shall have the right to award costs, fees and expenses including, without limitation, the arbitrator's fees and reasonable attorneys' fees, to the prevailing party. The award of, the arbitrator shall be binding and final on all parties. A party shall be entitled to have a judgment entered on the determination or decision of the arbitrator in any court of competent jurisdiction. For claims seeking injunctive or equitable relief, such as violation of restrictive covenants, each party consents to the personal jurisdiction of any state or federal court located in Miami, Florida, 17..Miscelilaneous. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. This Agreement, together with Exhibits hereto, all of which are incorporated herein and made a part hereof by this reference, constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements, understanding, negotiations,and discussions, both written and oral, between the parties •hereto with respect to such subject matter. The parties hereto have not relied on any statement, representation or warranty not expressly set, forth herein:. This Agreement may not be amended or modified in any way except by written instrument executed by all of the parties hereto, This Agreement may be executed in counterparts. IN WITNESS WHEREOF, the parties have: executed this Agreement as of the date first written above, YACHTING PROMOTIONS, INC. FLAGSTONE ISLAND GARDENS, LLC, Delaware limited liability company Title V 3 coo y Flagstone Development Corporation,. a Delaware corporation, its Manager By: , Mkhmet Bayra ar President 7