HomeMy WebLinkAbout8090RESOLUTION NO. 8090
• RESOLUTION APPROVING A MANAGEMENT AGREEMENT BETWEEN PUEBLO,
• MUNICIPAL CORPORATION, AND PUEBLO MOTORSPORTS, A COLORADO
NONPROFIT CORPORATION, RELATING TO A RECREATIONAL MOTORSPORTS
FACILITY AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO
EXECUTE SAME
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, COLORADO THAT:
SECTION l
The Management Agreement dated January 1, 1997 between
Pueblo Motorsports, a Colorado Nonprofit Corporation, and Pueblo,
a Municipal Corporation, relating to a recreational motorsports
facility on a portion of the "Honor Farm" property, having been
approved as to form by the City Attorney is hereby approved.
SECTION 2
The President of the City Council is hereby authorized
and directed to execute said Agreement for and on behalf of the
City and the City Clerk is directed to attest same and affix the
Seal of the City thereto.
INTRODUCED March 24 , 1997
BY: Charles Jones
Councilperson
APPROVED:
President the ouncil
ATTEST:
1- Cis�
City Cl rk
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT entered into as of January 1, 1997 between Pueblo,
a Municipal Corporation, City Hall, 1 City Hall Place, Pueblo, Colorado, 81003 (the "City ") and
Pueblo Motorsports, a Colorado nonprofit corporation (the "Manager ").
RECITALS
1. City is the lessee under the Lease Agreement dated April 10, 1995 between City and
the State of Colorado, acting by and through the Department of Natural Resources for the use and
benefit of the Board of Parks and Outdoor Recreation as lessor (the "State ") (the "Lease ") for certain
real property located in Pueblo County, Colorado, commonly known as the Honor Farm (the "Honor
Farm ").
2. Manager is desirous of entering into a management agreement to develop, operate
and maintain a recreational facility on a portion of the Honor Farm.
3. City is willing to enter into a management agreement with Manager upon the terms
and conditions contained herein.
NOW, THEREFORE, in consideration of the foregoing recital and mutual covenants
contained herein, City and Manager agree as follows:
1. Grant City hereby grants to Manager, subject to the terms and conditions herein
provided, the right and privilege to use, administer and manage the portions of the Honor Farm
described in attached Exhibit A together with all improvements thereon, whether now existing or
hereafter installed (collectively, the "Property "). Manager accepts such grant and agrees to use,
administer and manage the Property in compliance with the terms and conditions of the
Management Agreement.
2. Superior Lease The Management Agreement and all terms, covenants and
conditions herein and use of the Property are in all respects subject and subordinate to the terms,
covenants and conditions of the Lease. Manager acknowledges that it has received a copy of the
Lease, has read the same, and understands its contents.
3. Term The term of the Management Agreement is five (5) years, commencing
January 1, 1997 and ending December 31, 2001, unless sooner terminated as herein provided. If
not in default hereunder, the term of the Management Agreement may be extended for an additional
five (5) years upon such terms, covenants and conditions as Manager and City may then mutually
agree upon. If Manager desires to extend the term of the Management Agreement, Manager shall
notify City in writing within six (6) months prior to December 31, 2001. If Manager and City are
unable for any reason to mutually agree upon the terms, covenants and conditions for such extended
term by December 1, 2001, the Managment Agreement shall cease and terminate December 31,
2001.
4. Use. Manager shall use the Property solely for the purpose of developing, operating
and maintaining recreational motorsport activities and facilities thereon.
5. Conditions of Use Manager and the use of the Property are subject to and
conditioned upon the following covenants which Manager agrees to perform and comply with:
5.1 In the use, operation and development of the Property, Manager shall comply
with the Lease and all applicable ordinances, laws and regulations affecting the Property and
the use thereof by Manager, including without limitation, noise emission and control, and
environmental and hazardous waste laws, ordinances and regulations.
5.2 Manager shall maintain the Property in good condition, appearance and state
of repair regardless of cause of need for maintenance and repairs except those necessitated
by reasonable wear and tear. Manager shall upon the termination or expiration of the
Management Agreement deliver and surrender the Property in good condition, appearance
and state of repair.
5.3 Manager shall not permit or create waste upon the Property.
5.4 If the presence of Hazardous Materials on the Property caused or permitted
by Manager or the activities conducted on the Property by Manager results in contamination
of the Property, then Manager shall be responsible to remove, clean up and remediate such
contamination and Manager shall indemnify, defend and hold the City and State harmless
from all claims, judgments, damages, penalties, fines, costs, liabilities or losses, including
all expenses and reasonable attorney fees which arise, directly or indirectly, during or after
the expiration or termination of the Management Agreement as a result of such
contamination or the failure of Manager to comply with applicable federal, state and local
environmental and hazardous waste laws, ordinances and regulations. The term "Hazardous
Material" includes, without limitation, any material or substance that is (1) defined or
designated as a "hazardous substance," "hazardous waste" or a "regulated substance" under
applicable state or federal law or regulation, (ii) petroleum products, and (iii) asbestos.
5.5 City may enter the Property at any reasonable time to view the Property and
examine the conditions thereof, and for any lawful purpose necessary to enforce applicable
laws and ordinances and the provisions of the Management Agreement.
5.6 Manager acknowledges and agrees that City makes no warranties or
representations whatsoever with respect to the condition of the Property, environmental or
otherwise. Manager acknowledges that it has had the opportunity to inspect the Property and
agrees to take possession and use of the Property in its present condition "AS IS."
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6. Manager's Representations Manager represents and warrants that:
6.1 Manager is a nonprofit corporation duly organized and existing under the
laws of the State of Colorado.
6.2 Manager has approved and authorized, by all necessary actions and approvals,
the Management Agreement and its execution and delivery by its undersigned officers.
6.3 The Management Agreement constitutes the valid and legally binding
obligations of Manager and is enforceable against Manager in accordance with its terms.
7. Activities
7.1 The scheduling of permitted recreational activities on the Property and the
conduct of such activities, including the frequency and type of activities, shall be the
responsibility of Manager and within its discretion.
7.2 All activities conducted on the Property shall be open to the general public
and, if applicable, shall be sanctioned by an appropriate sanctioning body. Manager may
charge a reasonable fee or admission charge, provided, that all such fees and charges shall
be used in the development of the Property and operation of recreational motorsport
activities on the Property, and Manager shall submit to City at least annually an accounting
of the revenue from such fees and charges including their expenditures.
7.3 Manager shall not in the use or operation of the Property or activities
conducted thereon discriminate on the basis of race, color, creed, national origin, disability,
sex or age.
7.4 All ordinances of the City of a regulatory or police nature, including without
limitation, building codes and traffic ordinances shall apply to and govern the Property and
activities conducted thereon the same as if the Property were located within the City.
Manager shall control all noise and fugitive dust from roadways and activities conducted on
the Property.
8. Development
8.1 The Property may be used in the same manner as the Property has been
previously used as recreational motorsport activities and facilities. Any additional
development of the Property shall be in accordance with a Master Plan submitted to and
approved by the City Manager of City. The Master Plan for the development of the Property
shall conform to and be consistent with the City's Management Plan for the Honor Farm
approved by the State pursuant to the provisions of the Lease.
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8.2 All buildings and other improvements of a permanent nature which Manager
plans to construct on the Property must conform with the approved Master Plan and receive
preliminary written approval from the State and City Manager. In addition, the plans and
construction drawings for all building and other improvements on the Property must be
designed by a professional en or architect and submitted to the State and City Manager
for review and written approval prior to the commencement of construction. If either the
State or City Manager does not approve or reject the plans and drawings in writing within
90 days after receipt thereof, the plans and drawings shall be deemed to have been approved.
8.3 All buildings and improvements presently existing on the Property or
hereafter constructed and installed on the Property shall be and remain the Property of the
City, except, that if Manager constructs or installs any building or improvement on the
Property without approval of the State or City Manager as provided in section 8.2 above,
City may, at its option, require Manager to remove such building or improvement and
restore the Property to the condition existing prior to the construction or installation of such
building or improvement.
8.4 Manager shall not cause or permit any lien or encumbrance to be place on or
asserted against the Property or any building or improvement thereon.
8.5 Manager shall not raze, remove, structurally change or substantially alter or
modify any building, structure or improvement on the Property, whether now existing or
hereafter installed, without first obtaining the written'approval of City Manager of City and
if necessary under the Lease, the State. Upon receipt of a written request for such approval,
City Manager shall forward a copy thereof to State for its review and approval if required
under the Lease.
9. Utilities and Roads Manager shall at its expense install, extend and maintain all
access roads and utility services to the Property and pay all charges for all utilities serving the
Property.
10. Taxes Manager shall pay, before same become delinquent, all taxes assessed, levied
or imposed against the Property, Manager's personal property thereon, and all activities conducted
on the Property.
11. City's Rights
11.1 City reserves the right to grant rights of way and easements on, over and
across the Property which do not materially interfere with Manager's use of the Property.
11.2 City reserves the right to cross over the Property including the right to install,
maintain, repair, remove and relocate utilities, roads, roadways, trails and trail systems on,
over, under and across the Property at such location or locations as City may determine.
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12. Insurance and Liability
12.1 Manager shall, at its expense, maintain and keep in force (i) comprehensive
public liability insurance for the Property and all activities conducted thereon naming the
City as an additional insured as its interests may appear, in amounts not less than $600,000
single limit for property damage and personal injury including contractual coverage, (ii) fire
and extended coverage insurance naming the City as loss payee insuring all buildings and
improvements on the Property to their insurable value, and (iii) workers' compensation
insurance required by Colorado law. Manager shall furnish copies or certificates of such
insurance to the City's Director of Parks and Recreation. All proceeds from fire and
extended insurance shall be used to repair or rebuild the damaged property. Manager and
City mutually release and discharge each other from all claims, liability or damage caused
by or arising from any hazard covered by such fire and extended insurance, regardless of the
cause of damage or loss.
12.2 Manager shall be in control and possession of the Property as provided
herein, and City shall not, in any event whatsoever, be responsible or liable for any injury
or damage to any property or any person while on the Property or resulting from or arising
out of the use of the Property by Manager or activities conducted thereon. As to the City,
Manager agrees to assume the risk of all injuries, including death resulting therefrom, to
persons, and damage to and destruction of property, including loss of use thereof resulting
from or arising out of, directly or indirectly, wholly or in part, any activities or prosecution
of work undertaken by Manager on the Property or the use of the Property by Manager or
the use of the Property by others under Manager's supervision or control or with the
permission of Manager, and to indemnify and save harmless City and its officers, agents and
employees from and against any and all such liability arising therefrom.
12.3 Notwithstanding any provision of the Management Agreement to the
contrary, no term or condition of the Management Agreement shall be construed or
interpreted as a waiver, either express or implied, of any immunities, rights, benefits or
protection provided or available to City under applicable law including without limitation
those provided and available to City under the Colorado Governmental Immunity Act, §24-
10 -101, et seq. C.R.S., as amended or as may be amended. The parties understand and agree
that the City's and its officers', agents' and employees' liability for claims for injury to
persons or property is controlled and limited by the provisions of §24 -10 -101, et seq., C.R.S.
as amended or as may be amended. Any provision of the Management Agreement, whether
or not incorporated herein by reference, shall be controlled, limited and otherwise modified
so as to limit any liability of the City, its officers, agents and employees to the above cited
1 aw.
13. Termination and Default
13.1 If the Lease with respect to the Property is terminated for any reason, the
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Management Agreement shall terminate.
13.2 The Management Agreement may be terminated by mutual consent and may
be terminated by either party upon giving one (1) year prior written notice to the other party
specifying the date of termination.
13.3 If either party is in default hereunder, the non - defaulting party may given
written notice describing the default to the defaulting party. If the defaulting party does not
correct such default within thirty (30) days after receipt of said notice, or if the default
cannot be corrected within said 30 -day period and the defaulting party fails to commence
action to correct the default within said 30 -day period and thereafter diligently pursue
corrective action, the non - defaulting party may upon an additional ten (10) days notice
terminate the Management Agreement and, except for accrued rights and liabilities
hereunder, upon such termination each party shall be released from all future duties and
obligations hereunder.
13.4 Upon termination of the Management Agreement for any reason, all rights
of Manager hereunder shall cease and terminate and Manager shall immediately and
peacefully surrender and deliver possession of the Property to City.
14. Notice Any notice required or permitted herein shall be in writing and delivered
personally or by first class mail, postage prepaid, as follows:
(a) If to City, 1 City Hall Place, Pueblo, Colorado, 81003, Attention: City Manager.
(b) If to Manager, at the address appearing under the signature of Manager on page 7
hereof.
Each party reserves the right to change its address provided notice of such change is given in
accordance herewith.
15. Eminent Domain If the Property shall be taken by right of eminent domain, in
whole or in part, for public purposes, the Management Agreement shall terminate with respect to
the Property so taken, and all damages which may be awarded for such taking shall belong to and
be the sole property of City.
16. Water and Mineral Rights All water rights and all right, title and interest in and to
all minerals, ores, sand and gravel, metals of any kind and character, coal, asphalt, oil, gas, or like
substances, in, on or under the Leased Premises, including the right of surface entry thereto, have
been reserved by the State and are not part of the Property.
17. State Approval The Management Agreement is subject to State approval and shall
not become effective until the date of such approval.
M
18. City's Assistance Upon written request of Manager, City may, in its sole discretion
and upon approval of the City Manager of City, provide and furnish in -kind services to Manager.
Notwithstanding the foregoing, or any other provision of the Management Agreement, the
relationship between Manager and City is purely contractual and that of an independent contractor.
Neither the Management Agreement nor any provision hereof shall make or be construed to make
Manager or any of its officers, agents, contractors or employees, the employees, agents, contractors
or partners of City.
19. Miscellaneous Provisions
19.1 No assent, express or implied, by City to any breach or default by Manager
in the performance of any one or more of the covenants hereof shall be deemed or taken to
be a waiver of any succeeding breach of or default in the same or different covenant.
19.2 In the event of any litigation arising out of the Management Agreement, the
court shall award to the prevailing party all costs and expenses, including but not limited to,
reasonable expert witness and attorney fees.
19.3 Time is of the essence. The Management Agreement shall be binding upon
and inure to the benefit of the parties and their respective successors and approved assigns.
19.4 Manager shall not assign the Management Agreement or any of its rights
thereunder without the prior consent by resolution of the City Council of City.
19.5 No amendment or modification of the Management Agreement shall be
effective unless in writing and signed by all of the parties hereto.
19.6 The Management Agreement constitutes the entire agreement of the parties
with regard to the subject matter hereof and supersedes any and all prior agreements and
understandings whether oral or written.
19.7 At all times during the performance of the Management Agreement, the
parties shall adhere to and be bound by all applicable federal, state and laws, ordinances and
regulations.
19.8 Nothing in the Management Agreement, expressed or implied, is intended nor
shall be construed to confer upon, or give to, any person or entity other than the City, the
State or Manager any right, remedy, or claim under or by reason of the Management
Agreement or any covenant, condition or provision hereof, and all covenants, conditions,
provisions and agreements contained in the Management Agreement by or on behalf of City
or Manager shall be for the exclusive and sole benefit of City, the State and Manager.
IN WITNESS WHEREOF, the parties have extended the Management Agreement in Pueblo,
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Colorado on the day and year first above written.
ATTEST: PUEBLO, a Municipal Cor oration
By
City C President of the City
ATTEST:
PUEBLO MOTORSPORT, INC.
Title:. Title: e�.� �� rn
Address: 6 g -7 0 ��
m
EXHIBIT A
All of Section 16, the East 1/2 of the Northeast 1/4 and the East 300 feet of the
Northwest 14 of the Northeast 1/4 of Section 20, and the Northwest 1/4 of Section
21, Township 20 South, Range 65 West, Pueblo County, Colorado, subject to
existing rights of way, easements and rights of parties under any lease with the State
of Colorado.
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