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HomeMy WebLinkAboutAgreements/Contracts - FairgroundsK23-031 2023 -2025 DAVIS SHOWS NW, INC. AGREEMENT This Agreement is made between Grant County, duly organized and operated under and by virtue of the Constitution and the laws of the State of Washington, ("COUNTY") and Davis Shows NW, Inc., an Oregon Corporation, duly registered and doing business in the State of Washington, ("DAVIS"). RECITALS: WHEREAS, the COUNTY sponsors and promotes an annual County Fair ("FAIR"), the same generally conducted two (2) weeks prior to the Labor Day weekend in August, the same generally commencing on a Tuesday and terminating on a Saturday. WHEREAS, COUNTY and DAVIS, desire to enter into an agreement whereby DAVIS will provide shows, amusement rides, games and concessions during the FAIR for a period of three (3) years on terms mutually agreeable to the COUNTY and DAVIS. TERMS AND CONDITIONS: For and in consideration of the above recitals, the covenants, terms and conditions hereinafter contained and other good and valuable consideration, COUNTY and DAVIS agree as follows: 1. Term: The term of this Agreement shall be for approximately three (3) years commencing on • the day of the last party signing hereto; and terminating on September 30., 2025 unless otherwise terminated as provided herein. It is anticipated that the FAIR will operate August 15 through 19, 2023; August 20 through 24, 2024; and August 19 through August 23, 2025. 2. Annual Fair: Throughout the term of this Agreement, DAVIS agrees to furnish and provide a combination of shows, amusement rides, games and concessions (Davis Shows NW) each year at the FAIR situated in and upon the Grant County Fairgrounds, Moses Lake, Washington (Fairgrounds). 3. Performance: DAVIS shall be in place, operable, and ready for public engagement during the FAIR at the Fairgrounds no later than 2:00 p.m. on Tuesday and terminating no sooner than 1:00 a.m., weather permitting the following Sunday, each year during the FAIR. PROVIDED, the COUNTY, in its sole discretion, may determine additional days of RECEIVED JAN 19 2023 NA2023 Grant County FairkDavis shows contract up to 2025.docx Davis Shows Carnival Contract 2023 - 2025 t:',RA'\.',T CIT N71Y C0Fv111A1-q-S110NERS,, FAIR operation and/or expand operating hours. In such event, the COUNTY shall provide DAVIS with notice at least ninety (90) days in advance of FAIR commencement. 4. Location: The location of DAVIS and its component parts on the Fairgrounds shall be determined by the COUNTY designee no less than sixty (60) days prior to the FAIR. DAVIS may have its equipment and supplies at the Fairgrounds for the purpose of set- up and/or removal for a period not to exceed four (4) days before and after the FAIR. DAVIS may extend this time with prior written consent of the COUNTY. 5. Base Operating Hours: DAVIS shall be in operation and open to the public for FAIR between the hours of 2:00 p.m. and 11:00 p.m. on Tuesday, Wednesday, and Thursday; between the hours of 2:00 p.m. on Friday through 1:00 a.m. Saturday; and between the hours of 12:00 p.m. on Saturday through 1:00 a.m. on Sunday. PROVIDED: Operating hours are subject at all times to adjustments, including closure, for any reason by order of any governmental authority having jurisdiction, adverse weather conditions making operations unsafe as based on industry standards, i.e., high winds, snow, lighting storm, etc., and COUNTY, in the event of emergency, and provided further that operating hours as specified above may be reduced or expanded in advance of written agreement of DAVIS and COUNTY. DAVIS may expand these hours if economically beneficial to the FAIR as agreed to by both the Fairgrounds Director and Davis Shows. 6. Consideration: As monetary consideration to COUNTY for permitting DAVIS to operate in and upon at the Fairgrounds during the FAIR, DAVIS shall pay to the COUNTY: • the greater sum of either Forty-five Thousand Dollars ($45,000.00) or forty percent (40%) of gross ride ticket sales during the FAIR; • Forty-five (45%) of gross ride ticket sales sold in advance of the FAIR; • Twelve Thousand Dollars ($12,000.00) for concessions and games; and 0 Six Thousand Dollars ($6,000.00) for Fairground improvements. The foregoing monetary consideration shall be paid each year in the sum indicated above without offset or reduction on or before 5:00 p.m. on the Monday following the termination of the FAIR. DAVIS will be entitled under this Agreement to impose a fuel surcharge for the unlimited ride wristband s/tickets sold on site at the Carnival Box Office(s), during the FAIR. If a fuel surcharge is imposed, the amount will be negotiated by the parties at least three (3) business days prior to the imposition of such surcharge. NA2023 Grant County Fair\Davis shows contract up to 2025.docx Davis Shows Carnival Contract 2023 - 2025 7. Advance Ticket Sales: The COUNTY and DAVIS shall, jointly each year, for each FAIR year, develop a program of advance DAVIS ticket sales. 8. Description of Amusements: During each FAIR year, DAVIS shall provide major rides, kiddies' rides, amusement devices, games, and concessions. DAVIS agrees to change and/or add two (2) different major rides at the FAIR during each additional term of this Agreement. 9. Advertising: DAVIS agrees to advertise its shows and exhibits in conjunction with the FAIR in local newspaper, radio and television, and to pay the COUNTY the annual sum of Three Thousand Dollars ($3,000.00) for the purposing of such advertising. 10. Independent Contractor: In the performance of this Agreement and in every activity connected therewith, DAVIS is and shall act as an independent contractor, maintaining complete control over and having full responsibility for performance of all of its agents and employees; provided that in the performance of this Agreement and in every activity connected therewith, DAVIS shall fully and promptly comply with and shall cause its employees to fully and promptly comply with all applicable laws, ordinances, rules and regulations, whether federal, state, or local. DAVIS will not employ, contract with, or hire Independent vendors who have been banned or otherwise removed by the COUNTY for the cause as determined by COUNTY. 11. Equipment: All materials, equipment and supplies used in any way by DAVIS in the performance of the terms and conditions of this Agreement shall meet all standards for safety and performance as adopted by the American Society for Testing of Materials (ASTM) as now promulgated or hereafter amended, Chapter 67.42 RCW, as now or hereafter amended, including any and all rules and regulations promulgated thereunder and any other applicable statutes, rules or regulations; and shall provide the FAIR, prior to 11:00 a.m. on the first day of the FAIR, a certificate of inspection certifying compliance of all such materials, supplies and equipment with said standards. 12. Personnel: DAVIS shall insure that all of its employees and agents are at all times dressed in uniforms, are clean and neat, are alert 'and not under the influence of intoxicants or drugs, are fully trained and knowledgeable with respect to the equipment each is NA2023 Grant County FairkDavis shows contract up to 2025.docx Davis Shows Carnival Contract 2023 - 2025 maintaining and are at all times courteous to the public and other individuals and/or groups. DAVIS will take all reasonable steps to ensure that it will not employ or contract with any person or firm who has been convicted of a felony sex crime and/or is restricted from events with children as defined by Washington State law. If the COUNTY or authorized law enforcement officer informs DAVIS that any person is a convicted sex offender and/or restricted from events with children, DAVIS will relieve that person immediately and instruct them to leave the Grant County Fairgrounds. 13. Expenses: DAVIS shall promptly pay all expenses and indebtedness for labor, supervision, equipment, tools, services and material used in the performance of its obligations under this Agreement and shall defend, indemnify and hold COUNTY harmless therefrom. 14. Risk of Loss: DAVIS shall be solely responsible and have sole and complete risk of loss for all its supplies, equipment, employees and agents throughout the term of this Agreement. 15. Indemnity: DAVIS shall indemnify and hold COUNTY, their officials, officers, and or employees harmless from and against any and all expenses, liabilities, suits judgments, and/or claims of every kind, including, without limitation, loss, death, injury or damages to persons or property including reasonable attorney's fees by and on behalf of officers and/or employees, arising out of: (1) a failure by DAVIS to perform any of the terms or conditions of this Agreement; (2) any injury or damage happening on or about the Fairgrounds caused by the acts of DAVIS and/or its officers, employees, and/or agents, unless caused by the COUNTY's negligence; (3) the failure of DAVIS to comply with any law of any government authority; (4) any mechanic's lien or security interest filed against the Fairgrounds or equipment, materials, or alterations of building or improvements hereon due to the acts of DAVIS. 16. Taxes and Fees: DAVIS agrees to pay all applicable sales or use taxes, transportation taxes, industrial insurance taxes, and any other tax, fee or assessment now or hereafter imposed by any government or taxing authority having jurisdiction over DAVIS or the activities of DAVIS which is or may become due on account of DAVIS' performance pursuant to the terms of this Agreement and shall defend, indemnify and hold the COUNTY and FAIR harmless therefrom. Neither DAVIS nor FAIR shall knowingly act or cause any taxes not otherwise due, to become due or otherwise cause a loss of any exemptions or credits otherwise available to each. NA2023 Grant County FairXDavis shows contract up to 2025.docx Davis Shows Carnival Contract 2023 - 2025 17. Force Majeure: Neither party shall be responsible to the other party for any delay in the performance of any obligation pursuant to this Agreement which is directly caused by any event (a "force majeure event") which is beyond such a party's reasonable control which shall include, without limitation, acts of God, fire, explosion, war, riots, strikes, labor disputes, and governmental laws, order or regulations, except financial inability, but only to the extent and during the continuance of such force majeure event and provided the notice of any claim or force majeure by a party shall be given to the other party within twenty-four (24) hours following the force majeure identified in such notice and shall include full details of such force majeure event and delay. If because of a force majeure event either party determines that it cannot continue its obligations under this Agreement, such party shall promptly notify the other party of its intent to terminate this Agreement. 18. obligations of County: COUNTY will agree to: A. Not promote, sponsor, or contract with any other amusement company to provide any amusement rides during the FAIR, except on occasion, individual amusements of limited nature and size to include animal rides and ventures of gaming or amusements not in direct conflict with any Davis Shows NW shall be allowed by mutual consent of FAIR and DAVIS; B. Provide showers and restroom facilities for employees of DAVIS; C. Provide reasonable security and police surveillance; and D. Provide sufficient supply of potable water for DAVIS employees. All of the obligations of COUNTY as specified above shall be at the sole cost and expense of COUNTY. 19. Insurance: DAVIS will secure and maintain at all times during the term of this Agreement the following insurance and shall furnish COUNTY certificate(s) of the policy or policies of such insurance or exact copies of such policies: A Commercial General liability insurance in amounts not less than $1,000,000 per occurrence with an additional $100,000 property damage per occurrence; Two Million Dollars ($2,000,000.00) General Aggregate; and an umbrella liability of $3,000,000 per occurrence and aggregate B. Workers compensation insurance complying with the laws of the State of Washington C. Comprehensive automobile liability insurance with limits of not less than $1,000,000 combined single limit each accident. NA2023 Grant County Fair\Davis shows contract up to 2025.docx Davis Shows Carnival Contract 2023 - 2025 All insurance obtained by DAVIS pursuant to the above requirements and applicable to DAVIS' operations in conjunction with the FAIR shall name COUNTY and the FAIR, and their officers, employees, and officials as additional insureds and no such policy shall be amended or cancelled without thirty (30) days prior notice of such amendment or cancellation to COUNTY. Prior to providing services under this Agreement, DAVIS shall provide a certificate evidencing such coverage and identifying the COUNTY, its appointed and elected officials, agents and employees, as express third party beneficiaries and/or as an additional insured regarding such insurance policy as obtained by DAVIS. 20. Inspection: At all times during the term of this Agreement, COUNTY shall have the right to inspect DAVIS' box offices, supplies and equipment to determine the compliance with provisions of this Agreement. 21. Non -Assignment: DAVIS shall not assign or subcontract is rights hereunder without COUNTY's prior written consent which consent may be withheld at the sole discretion of COUNTY. 22. Designated Agents: Each of the persons named below, unless and until changed by notice, shall have full and complete authority, respectively, to act on behalf of the parties respect in this Agreement, including full and complete authority to sign any and all documents prepared in furtherance of or as required by the terms of this Agreement: COUNTY: Jim McKiernan, Fair and Facility Director DAVIS: William Patrick Davis, President, Davis Shows NW, Inc. 23. Default: Time is of the essence of each and every term, covenant, and condition of this Agreement. Should there be a default by DAVIS in the full and timely performance each and every duty and obligation of DAVIS as set forth in the covenants, terms, and agreements of this Agreement, then and in such event COUNTY may exercise all of any combination of the following remedies: A. Terminate this Agreement; and/or B. Seek injunctive relief (mandatory or prohibitive); and/or C. Seek damages _ NA2023 Grant County Fair\Davis shows contract up to 2025.docx Davis Shows Carnival Contract 2023 - 2025 24. Non -Waiver: Any extension of time and payments or acceptance of parts thereof or of failure of COUNTY to promptly force any breach of this Agreement shall not be construed as a waiver on the party of COUNTY of the strict performance of DAVIS of all of the terms, covenants, agreements, or conditions herein and shall not prejudice any of COUNTY's rights or remedies. 25. Liquidated Damages: In the event DAVIS should fail to fulfill its obligation to provide services at the FAIR, DAVIS understands and agrees that the damages which would be occasioned to COUNTY would be substantial and difficult and impractical to compute. However DAVIS agrees in such event that it shall on demand of COUNTY, pay liquidated damages in the amount of Two Hundred Fifty Thousand Dollars ($250,000.00) to COUNTY. This provision will not nullify or modify the applicable minimums or guarantees as stated herein. 26. Governing Law: This Agreement shall be governed and interpreted by Washington State law. This Agreement, and any dispute relating thereto, is subject to the exclusive jurisdiction and venue of Grant County Superior Court of the State of Washington. 27. Entire Agreement: This Agreement contains the entire agreement of the parties hereto and except for any agreements or warranties otherwise stated in writing to survive the execution and delivery of this Agreement, supersedes all of their previous understandings and agreements, written or oral, with respect to the subject matter of this Agreement. Neither party shall be liable to the other for any representations made by any persons concerning the terms of this Agreement, except to the extent the same are expressed in this Agreement. This Agreement may be amended only . by written instrument executed by each of the parties hereto or their lawful successors and assigns subsequent to the date hereof. NA2023 Grant County FairkDavis shows contract up to 2025.docx Davis Shows Carnival Contract 2023 - 2025 28. Successors: Subject to the restrictions contained herein, the rights, duties and obligations of the parties hereto shall inure to the benefit and be binding upon their respective estates, heirs, personal representatives, executors, administrators, successors, successors in trust, and assigns. 29. Notice: Any notice required to be given by either party to the other shall be deposited in the United States mail, postage prepaid addressed to: GRANT COUNTY: Jim McKiernan, Director Grant County Fairgrounds 3953 Airway Drive NE Moses Lake, WA 98837 William Patrick Davis, President Davis Shows NW, Inc. 16001 N E 61 st Avenue Vancouver WA 98686 Or at such other address as either party may designate to the other in writing form time to time. This Agreement, is executed by the persons signing below who warrant they have the authority to execute this agreement. DATED thisJ day of Tebnn�1 2023. 0 BOARD OF COUNTY COMMISSIONERS GRANT COUNTY, WASHINGTON W1111 a Nil VT ne, Member NA2023 Grant County FairXDavis shows contract up to 2025.docx Davis Shows Carnival Contract 2023 - 2025 EST: farara J. Vas&Cicof the Boal Approved as to form. - Approved as to form: Rebekah Kaylor, #53257 Civil Deputy Prosecuting Attorney Date: % 9' ��?..____ DATED this.day of, 4-1 k DAVIS SHOWS NW, INC. yt Wi I I 1'a'm'Patfi Cklbavi s PFesl dent State of County of i hereby certify that I know or have satisfactory evidence that William Patrick Davis signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as the President of the Davis Shows NW, Inc., and acknowledged it to be the free and voluntary act of such party for the uses and purposes mentioned in this instrument. 01-1- ICIAL STAMP DEVRI LEA RICHARDSON NOTARY PU13LIC - OREGON COMMISSION NU 102lqb� po W2023 Grant County FairkDavis shows contract up to 2025.docx Davis Shows Carnival Contract 2023 - 2025