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10 - Southern Drag Boat Association AgreementItem No. 10 TO: Mayor & City Council FROM: Grayson Path, City Manager SUBJECT: SOUTHERN DRAG BOAT ASSOCIATION AGREEMENT DATE: May 10, 2021 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. 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 and tree trimming ahead of time. The attached agreement is essentially the same as last year's contract approved by the City Council on May 51h STATUS OF ISSUE: The City and SDBA have negotiated the attached agreement to mirror that of last year's approved agreement. We did add in the clearing of brush and trees, but that is a minor task for us to perform given the already existing condition of the Lake. The Boat Race Event will take place June P and 6th of 2021. The City will prepare the Lake in preparation for this event. City Departments are confident they can fulfill their obligations required of them in Schedule A. BUDGET: The SDBA requests to retain all fees and profits from sales during the event. Section 2 of the agreement touches more on this. The SDBA will pay the City $2,500.00 for use of the Lake and the services being provided. The VCC is providing the SDBA with $7,000.00 for sponsorship of this event. OPTIONS: 1. Approve the Drag Boat Race Event Agreement with the SDBA and authorize the City Manager to sign. 2. Request edits and/or reject the Agreement. RECOMMENDATION: Approve the Drag Boat Race Event Agreement with the SDBA and authorize the City Manager to sign. DRAG BOAT RACE EVENT AGREEMENT THIS AGREEMENT (the "Agreement") is made effective as of the 10th day of May, 2021, (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: 1. Description of Services. In connection with a drag boat race (the "Event") to be conducted on the date(s) and as the location as specified in Schedule A, SDBA shall provide the services specified in Schedule A. 2. Consideration. In consideration of the Services rendered by SDBA, SDBA shall receive the following: SDBA shall be entitled to receive and retain as its sole and exclusive property, all registration fees, vendor fees, spectator gate fees, sponsorship fees and profits from the sale of SDBA T-shirts and the Event T- shirts, souvenirs 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 said terms in Schedule A shall control. 3. Obligations of City. In consideration of the Services to be rendered by SDBA, City agrees to perform the obligations and supply such goods and services as specified in Schedule A. 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. Governance of the Race. SDBA is 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. 6. Rules and Regulations. SDBA agrees to conduct the Event in accordance with the SDBA 2019 Race Rules and Regulations. In the event of any conflict between the terms of this Agreement and the provisions of such Rules and Regulations, the terms of the Agreement shall control. 7. Warranties. SDBA shall provide the Services and meet its obligations under this Agreement in a timely and workmanlike manner which meets generally acceptable standards in the race boat industry and region, and shall provide a standard of care and quality equal to, or superior to, the care and quality used by service providers similar to SDBA at similarevents. 8. Term and Option. This agreement shall begin on the Effective Date and shall run for a one year term, expiring on the first anniversary of the signing of this Agreement. The SDBA shall have the option to extend this Agreement for an additional year for an Event occurring in the calendar year following the year in which this Agreement was signed, for the same consideration as provided herein, by giving written notice to the City no later than 30 days prior to the expiration of the term of this agreement. 9. Default. The occurrence of any of the following shall constitute a material default under this Agreement: A) The failure of either Party to make a required payment when due (if payment is applicable to this Agreement); 13) The insolvency or bankruptcy of either Party; Q The subjection of any or either Party's property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency; D) The failure to make available or deliver the services or perfoun the obligations specified in Schedule A, in the time and manner provided for in this Agreement. 10. Remedies on Default. In addition to any other rights a Party may have available under applicable laws, if a Party defaults by failing to timely perform any provision, term or condition of the Agreement (including without limitation the failure to make a monetary payment when due, if applicable to this Agreement), the other Party may terminate this Agreement by providing written notice to the defaulting Party. This notice shall describe with sufficient detail the nature of the default. The Party receiving such notice shall have one (1) day from the effective date of such notice to cure the default(s), provided that the time for the performance of services and obligations as specified herein (and specified in Schedule A) has not passed. Unless waived by a Party providing notice, failure to cure the default(s) within such time period shall result in the termination of this Agreement at the option of the non -defaulting party. Time is of the essence as to the obligation of both Parties under the terms of this Agreement. 11. 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 KIND 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 KIND 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. 12. 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. 13. 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. 14. Third Party Agreements. SDBA shall have all rights and interest in proceeds payable by third Parties under SDBA's agreements with third parties. 15. 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. 16. 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. 17. Assignment. Any assignment of the Agreement or any of the rights hereunder by either Parry, either voluntarily or by operation of law, shall be void without the prior written consent of the other Party. 18. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective Successors and permitted assigns. 19. 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. 20. 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. 21. Amendment. This Agreement may be modified or amended only if the amendment is made in writing and signed by both Parties. 22. 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. 23. 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. 24. 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. 25. 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 further 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. 26. 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. 27. 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 finality 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 10th day of May 2021. SOUTHERN DRAG BOAT ASSOCIATION, LLC By: David Carroll Print Name: David Carroll Title: Series Director CITY I: Print Name: Grayson Path Title. City Manager ._ , , ,® . _. 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. I Provide and man tow boats. 4. Provide announcer. S. Provide and man adequate rescue boats. 6. 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. 7. Pay for the use of Lake Crook in the amount of $2,500.00 8. Pay the cost of one commercial dumpster. B. 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 to the event: 1. Spectator liability coverage in the amount of $1,000,000 per occurrence, $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 referenced in above. 5. SDBA further agrees to furnish City with proof of insurance for all of the above required policies. A. City agrees to provide the following for the event: 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 SDBA 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) B City Agrees to perform the following services: 1. Clear brush and small trees near lake to facilitate spectator viewing. 2. Clear and mow pit area. C. Paris VCC agrees to give SDBA $7000.00 in sponsorship monies.