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11 - Southern Drag Boat Association AgreementItem No. 11 TO: Mayor & City Council FROM: Grayson Path, City Manager SUBJECT: SOUTHERN DRAG BOAT ASSOCIATION AGREEMENT DATE: May 5, 2020 BACKGROUND: For a number of years, the city has entered into an annual agreement with the Southern Drag Boat Association, the Lamar County Chamber of Commerce and the Paris VCC, for the purpose of holding drag boat races at Lake Crook. This has been an important event for our community and local retail. CoVid-19 though has forced the SDBA to re-examine their event. They would still like to hold the event, but have agreed to make certain CoVid-19 adjustments such as no spectators, keeping crew teams apart, sanitation, etc. The SDBA is asking permission to use Lake Crook for their event, they will completely manage the event, and will list the City as additional insured for the listed rates in Schedule A. The City will provide an ambulance, rescue truck, as well as patrols. We will also provide some barricades and trash liners and perform some mowing ahead of time. STATUS OF ISSUE: Paul Allen with the Chamber informed me that SDBA has tentatively scheduled to hold the drag boat race event in June as planned. In an effort to keep the event moving forward, SDBA has developed a list of measures they are willing to take to stay in line with the basic CoVid-19 guidelines (group sizes, social distancing, etc.). We feel that what they have proposed should work. Section 5 identifies that a CoVid-19 Rider will exist (found at the end of the Agreement). Schedule A provides the responsibilities of the SDBA and the City. Speaking with the Departments, the City should be able to meet our obligations as listed. We will note that given there will be no spectators, some of our obligations may be quite less in complexity than in years past. BUDGET: The SDBA requests to retain all fees and profits from sales during the event. Section 2 of the agreement touches more on this. Note that there will be no Spectators this year, which will impact their program and entry sales. The SDBA will pay the City $3,000 for use of the Lake and the services being provided. OPTIONS: 1. Authorize the agreement as is. 2. Make requests for edits (ex: CoVid-19 Rider, SDBA Obligations, City Obligations, Date, Insurance, etc.) 3. Request additional compensation (the listed amount of $3,000 was briefly discussed by staff as to whether this is sufficient to cover costs, but timing kept the City Manager from being able to work on this) 4. Disprove of the agreement. RECOMMENDATION: Approve the attached agreement in support of the Southern Drag Boat Association's request and authorize the City Manager to sign. DRAG BOAT RACE EVENT AGREEMENT THIS AGREEMENT (the "Agreement") is made effective as of the.__ day of —, 2020, (the "Effective Date"), by and between the following Parties: SOUTHERN DRAG BOAT ASSOCIATION LLC, a Texas limited liability company, whose mailing address is P.O. Box #28, Burnet, TX 78611 ("SDBA") and the City of Paris, Lamar County Chamber of Commerce and the Paris VCC, whose mailing address is 8 West Plaza, Paris, Texas 75460 ("City"); SDBA and City may each be referred to herein as a "Party" and collectively as the "Parties". The Parties hereby agree as follows: 9 wo A, SDBA shall provide the services specified in Schedule A. Consideration. In consideration of the Services rendered by SDBA, SDBA shall r Qr,R�j3ue—f+# Mia —sy. exclusive property, all registration fees, vendor fees, sponsorship fees and profits from the sale of SDBA T-shirts and the Event T-shirts, souverlirs and other merchandise. SDBA shall have no interest in the proceeds from sales of other T- shirts at the Event by third parties or the City. SDBA's right to sell T-shirts, etc., at the Event is non-exclusive to SDBA unless specified otherwise in Schedule A which swid terms in Schedule A shall control. 411bligations of City. In consideration of the Sei vices to be rendered by SDBA, City agrees to perform the obligations and supply such goods a services as specified in Schedule A. I 4. Cancellation of the Race. In the event of inclement weather or bad/rough water conditions, the SDBA Director, or his designated representative, may cancel the Event no later than 24 hours prior to the start of the Event. 5. COVID-19 Rider. The Parties acknowledge that the current COVID-19 pandemic requires that the Event be conducted under altered conditions than what would ordinarily prevail, including the exclusion of all spectators and the absence of any food vendors. Consequently, SDBA agrees to abide by the terms attached hereto as the COVID- 19 Rider, which is incorporated by reference as if fully set forth herein. i. Governance of the Race. SDBAis exclusively responsible for and has the paramount authority for regulating it personnel and membership, including drivers and their crews, team owners, and the composition of race boats. MJg Pil I k 111111 � 11,11 F-0111-OXV. M11 -a-7#111 =11 , ii i�! l 11 1111 714=11 a mill ww. # f � + f ' � f f ► 1' 8. Warranties. c shallprovide the Sei vices and meet its obligations Agreement in a timely f, workmanlike mannergenerally acceptable standards in the raceboat industry and #' shall provide r providersstandard of care and quality equal to, or superior to, the care and quality used by service . i ' at similarevents. 9. Term and 1 agreement shall begin.,. Effective, and shall run f, one yearon the first anniversary of Agreement. The SDBA shall have the option to extend this Agreement for an additional year for AgreementEvent occurring in the calendar year following the year in which this was signed, forf 1` , 1 as provided by noticegiving written • later than 30 days prior to the expiration agreement.of the term of this 10. Default. The occurrence of any of the followingr material default under thisAgreement: A The failureParty paymentrequired payment isapplicable is The insolvency or bankruptcy of either Party; Q The subjection of any or either Party'sproperty to any r, assignment for thef. . l creditors,of f flication or sale for or by any creditorgovernment agency; D) The failure to make available or deliver the services or petfomi obligations1 manner provided for in availablethis Agreement. 11, Remedies on Default. In addition to any other rights a Party may have applicable , , Party defaults1 timely perform any provision,1 of . Agreementwithout limitation the failure to make a monetary payment when due, if applicable this Agreement), the other Party mays Agreementby providing Party.written notice to the defaulting This notice shall describe f noticesufficient detail the nature of the default. The Party receiving such shall have , of notice to cure the default(s), provided that the time for the performance of obligations as f` (and specifiedSchedule has 1t passed Unless waived by , Partyftice, failure to cure the default(s) within such time period shall result in the tennination of this Agreement at the option of the non -defaulting party. as f the obligationof both Parties under the terms of this Agreement. 12. Indemnification of the City. SDBA DOES HEREBY AGREE TO WAIVE ALL CLAIMS, RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS THE CITY TOGETHER WITH ITS MAYOR AND CITY COUNCIL AND ALL OF ITS OFFICIALS, OFFICERS, AGENTS, ATTORNEYS, AND EMPLOYEES, IN BOTH THEIR PUBLIC AND PRIVATE CAPACITIES, FROM AND AGAINST ANY AND ALL CITATIONS, CLAIMS, COSTS, DAMAGES, DEMANDS, EXPENSES, FINES, JUDGMENTS, LIABILITY, LOSSES, PENALTIES, SUITS OR CAUSES OF ACTION OF EVERY HIND INCLUDING ALL EXPENSES OF LITIGATION AND/OR SETTLEMENT, COURT COSTS AND ATTORNEY FEES WHICH MAY ARISE BY REASON OF INJURY TO OR DEATH OF ANY PERSON OR FOR LOSS OF, DAMAGE TO, OR LOSS OF USE OF ANY PROPERTY OCCASIONED BY ERROR, OMISSION, OR NEGLIGENT ACT OF SDBA, ITS SUBCONTRACTORS, ANY OFFICERS, AGENTS OR EMPLOYEES OF SDBA OR ANY SUBCONTRACTORS, INVITEES, AND ANY OTHER THIRD PARTIES OR PERSONS FOR WHOM OR WHICH SDBA IS LEGALLY RESPONSIBLE, IN ANY WAY ARISING OUT OF, RELATING TO, RESULTING FROM, OR IN CONNECTION WITH THE PERFORMANCE OF THIS CONTRACT, AND SDBA WILL AT ITS OWN COST AND EXPENSE DEFEND AND PROTECT CITY FROM ANY AND ALL SUCH CLAIMS AND DEMANDS. SDBA DOES HEREBY AGREE TO WAIVE ALL CLAIMS, RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS THE CITY TOGETHER WITH ITS MAYOR AND CITY COUNCIL AND ALL OF ITS OFFICIALS, OFFICERS, AGENTS, ATTORNEYS, AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CITATIONS, CLAIMS, COSTS, DAMAGES, DEMANDS, EXPENSES, FINES, JUDGMENTS, LIABILITY, LOSSES, PENALTIES, SUITS OR CAUSES OF ACTION OF EVERY HIND INCLUDING ALL EXPENSES OF LITIGATION AND/OR SETTLEMENT, COURT COSTS AND ATTORNEYS FEES FOR INJURY OR DEATH OF ANY PERSON OR FOR LOSS OF, DAMAGES TO, OR LOSS OF USE OF ANY PROPERTY, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF THIS CONTRACT. SUCH INDEMNITY SHALL APPLY WHETHER THE CITATIONS, CLAIMS, COSTS, DAMAGES, DEMANDS, EXPENSES, FINES, JUDGMENTS, LIABILITY, LOSSES, PENALTIES, SUITS OR CAUSES OF ACTION ARISE IN WHOLE OR IN PART FROM THE NEGLIGENCE OF THE CITY, ITS MAYOR AND CITY COUNCIL, OFFICERS, OFFICIALS, AGENTS, ATTORNEYS, OR EMPLOYEES. IT IS THE EXPRESS INTENTION OF THE PARTIES HERETO THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY SDBA TO INDEMNIFY AND PROTECT CITY FROM THE CONSEQUENCES OF CITY'S OWN NEGLIGENCE, WHETHER THAT NEGLIGENCE IS A SOLE OR CONCURRING CAUSE OF THE INJURY, DEATH OR DAMAGE. IN ANY AND ALL CLAIMS AGAINST ANY PARTY INDEMNIFIED HEREUNDER BY ANY EMPLOYEE OF THE SDBA, ANY SUB- CONTRACTOR, ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM OR ANYONE FOR WHOSE ACTS ANY OF THEM MAY BE LIABLE, THE INDEMNIFICATION OBLIGATION HEREIN PROVIDED SHALL NOT BE LIMITED IN ANY WAY BY ANY LIMITATION ON THE AMOUNT OR TYPE OF DAMAGES, COMPENSATION OR BENEFITS PAYABLE BY OR FOR THE SDBA OR ANY SUB -CONTRACTOR UNDER WORKMEN'S COMPENSATION OR OTHER EMPLOYEE BENEFIT ACTS. INDEMNIFIED ITEMS SHALL INCLUDE ATTORNEYS' FEES AND COSTS, COURT COSTS, AND SETTLEMENT COSTS. INDEMNIFIED ITEMS SHALL ALSO INCLUDE ANY EXPENSES, INCLUDING ATTORNEYS' FEES AND EXPENSES, INCURRED BY AN INDEMNIFIED INDIVIDUAL OR ENTITY IN ATTEMPTING TO ENFORCE THIS INDEMNITY. 13. INDEMNIFICATION BY THE SDBA. SDBA SHALL INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, LAMAR COUNTY CHAMBER OF COMMERCE, AND THE CITY OF PARIS VISITORS AND CONVENTION CENTER AND ITS EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, AGENTS, ATTORNEYS, AND REPRESENTATIVES, FROM AND AGAINST ANY ACTION, CLAIM, DEMAND OR LIABILITY, INCLUDING REASONABLE ATTORNEYS' FEES, TO THE EXTENT SUCH CLAIM ARISES OUT OF OR IS BASED UPON THE SOLE AND EXCLUSIVE ACTIONS OR OMISSIONS OF SDBA OR ITS EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, AGENTS AND REPRESENTATIVES, IN PERFORMING UNDER THIS AGREEMENT. CITY SHALL HAVE THE RIGHT TO PARTICIPATE IN THE DEFENSE OF ANY SUCH CLAIM THROUGH COUNSEL OF ITS CHOOSING. 14. Confidentiality. SDBA, and its employees, agents, or representatives shall not at any time or in any manner, either directly or indirectly, use the personal benefit of SDBA, or divulge, or disclose, or communicate in any manner, any information that is proprietary to City. SDBA and its employees, agents, and representatives shall protect such proprietary information and treat it as strictly confidential. This provision shall continue to be effective after the termination of the Agreement. 15. Third Party Agreements. SDBA shall have all rights and interest in proceeds payable by third Parties under SDBA's agreements with third parties. 16. Name, Logos and Trademarks of City. SDBA may use, directly or indirectly, the name, logos or trademarks of the named Parties, in any form whatsoever for purposes of the Event, written consent of the named Parties being given with the signing of this Agreement. 17. Name, Logos and Trademarks of SDBA. City may use, directly or indirectly, the name, logos or trademarks of the SDBA, in any form whatsoever for purposes of the Event, written consent of the SDBA being given with the signing of this Agreement. 18. Assignment. Any assignment of the Agreement or any of the rights hereunder by either Party, either voluntarily or by operation of law, shall be void without the prior written consent of the other Party. 19. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective Successors and permitted assigns. 20. Notice. Any notices, requests or other communications hereunder shall be deemed duly given if made in writing and delivered by hand personally, via courier, by overnight delivery service, or by other manner of personal delivery, effective as of the date received mailed by registered or certified mail, effective three (3) days after mailing or by fax or by email, effective upon the receipt by sender of a written confirmation of the completion of a successful transmission, to the addresses specified on Schedule A. 21. Entire Content. This Agreement contains the entire agreement of the Parties regarding the subject matter of the Agreement, and there are no promises or conditions in any other agreement whether oral or written. This Agreement supersedes any prior written or oral agreements between the Parties. 22. Amendment. This Agreement may be modified or amended only if the amendment is made in writing and signed by both Parties. 23. Severability. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, and enforced as so limited. 24. Waiver of Contractual Rights. The failure of any occasion of either Party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of the Party's right to subsequently enforce and compel strict compliance with that provision, or any other provision, of this Agreement. 25. Independent Contractor. SDBA shall perform its obligations under this Agreement as an independent contractor. Except with the prior written consent of City, SDBA shall have no authority to enter into any agreement or commitment on behalf of City. This Agreement shall not be deemed or construed to create any agency relationship, partnership, employment or joint venture between SDBA and City. 26. Force Majeure. Cancellation of the Event by the City, due to fire, flood, storms, riots, strikes, weather, hurricanes, unavailability of utility services, war, conflict, epidemics, terrorism, hazardous materials spill or any similar farce shall be considered "Force Majeure" and neither SDBA nor City, shall have any fizrther obligation under this Agreement, and neither Party shall be liable to the other for consequential damages including but not limited to expenses, travel costs, supplies, lost profits or loss of goodwill. 27. Applicable Law. This Agreement shall be governed by the laws of the State of Texas. Any action brought to enforce or interpret this Agreement shall be brought in any court having jurisdiction over the subject matter thereof located in Lamar County, Texas and the Parties hereto hereby consent to the personal jurisdiction of such court. 28. Attorney's Fees. Should either SDBA or City employ an attorney or attorneys to institute a legal proceeding against the other Party for the purpose of enforcing any of the provisions hereof or protecting its interest in any manner arising under this Agreement, the non -prevailing Party in any action pursued in a court of competent jurisdiction [the fmality of which is not legally contested] shall pay to the prevailing Party all reasonable costs, damages and expenses, including reasonable attorneys' fees, expended or incurred by the prevailing Party in connection with such proceeding. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK SIGNED, on this day of 2020. SOUTHERN DRAG BOAT ASSOCIATION, LLC By: David Carroll Print Name: Title: Series Director CITY By: Print Name: Grayson Path Title Cii Manager 1 11111111 TUM Mis 21� �-11 A. SDBA agrees to set up, operate and conduct a "Drag Boat Race" of a quality meeting or exceeding the standard of the industry, including providing, in a timely manner, all of the following services at its own expense: 1. Set up and tear down the race course. 2. Furnish PA system, sound and communications. 3. Provide and man tow boats. 4. Provide announcer. 5. Provide and man adequate rescue boats. 6. No later than thirty (30) days prior to Event, provide the City with posters and flyers advertising the Event for distribution to local businesses. 7. Provide SDBA officials who will control qualifying procedures, the lineup of the boats, the start of the race, the control of boats through the race, the election to stop or delay a race, control "pit" activity, flagging, the position of the boats, the assessment of penalties and the completion of the race. 8. Pay for the use of Lake Crook in the amount of $3,000. 9. Pay the cost of one commercial dumpster. 10. Provide any additional portable toilets which may be needed for the event. W. SDBA further agrees to obtain the following insurance coverage, at its own expense and to provide copies of said policies to City at least 30 days prior t* tVe eve-tt: 1. Spectator liability coverage in the amount of $ 1,000,000 per occurTence, $5,000,000 in the aggregate. 2. Drivers medical insurance (secondary only) 3. Accidental Death and Dismemberment coverage for the participants of $1,000,000 per occurrence, $5,000,000 in the aggregate. 4. SDBA agrees to name the city as an additional insured under the policy UMMITME II .ra 1. One ambulance and one rescue truck on site during racing (with at least one paramedic). 2. Police officer(s) on site during racing. 3. Security patrols through the area at night once S begins bringing in equipment. 4. Provide barricades and/or cones for traffic control as needed. 5. Provide oil reclamation barrels. 6. Provide up to 40 trash cans and trash bag liners (industrial strength) COVID-19 RIDER SDBA agrees to take the following measures to mitigate the spread of COVID-19: 1. No spectators will be admitted to the event. 2. SDBA will use at least four separate local restaurants to provide breakfast and lunch Saturday and Sunday to help boost the local economy. 3. SDBA will provide City and VCC at least seven (7) calendar days in advance of the Event with a precise count of how many people will be in attendance. 4. SDBA will enforce social distancing. 5. SDBA will collect signed documentation from each crew verifying that no member of the crew has been exposed to the novel corona virus or travelled outside of the U.S.A. within the 14 days previous to the Event. 6. SDBA will provide cleaning and sanitizing supplies to each portable toilet and will establish and supply hand sanitizer stations. 7. SDBA will post informational posters relating to hand washing, hand shaking and social distancing throughout the Event area. 8. SDBA will enforce a maximum number of 8 people in each pit. (The precise number may change based on the number of boats participating.) 9. SDBA will allow no volunteers at the event. 10. There will be no vendors for food. City agrees to take the following measure to mitigate the spread of COVID-19: The City will close and lock the gates to Lake Crook at the end of each day's activities.