HomeMy WebLinkAbout11834RESOLUTION NO. 11834
A RESOLUTION APPROVING A DRAG RACING RENTAL
AGREEMENT BETWEEN THE CITY OF PUEBLO, A
MUNICIPAL CORPORATION, ACTING BY AND THROUGH
ITS HONOR FARM PROPERTIES ENTERPRISE, AND
SOLUTIONS MANAGEMENT, LLC RELATING TO PUEBLO
MOTORSPORTS PARK AND AUTHORIZING THE
PRESIDENT OF CITY COUNCIL TO EXECUTE SAME
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1
The Drag Racing Rental Agreement dated March 22, 2010 between City of
Pueblo acting by and through its Honor Farm Properties Enterprise and Solutions
Management, LLC, relating to a recreational motorsports facility on a portion of the
Honor Farm Properties, a copy of which is attached hereto, and 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 22, 2010
BY: Vera Ortegon
COUNCILPERSON
APPROVED:
FtE51DENT CF CITY CC) UNCIL
ATTESTED BY:
GIB' Y CLERK
PUEBLw
Background Paper for Proposed
RESOLUTION
DATE: March 22, 2010 AGENDA ITEM # M -2
DEPARTMENT: OFFICE OF THE CITY MANAGER
JERRY M. PACHECO, CITY MANAGER
JENNY M. EICKELMAN, ASSISTANT CITY MANAGER
TITLE
A RESOLUTION APPROVING A DRAG RACING RENTAL AGREEMENT BETWEEN
THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, ACTING BY AND THROUGH
ITS HONOR FARM PROPERTIES ENTERPRISE, AND SOLUTIONS MANAGEMENT,
LLC RELATING TO PUEBLO MOTORSPORTS PARK AND AUTHORIZING THE
PRESIDENT OF CITY COUNCIL TO EXECUTE SAME
ISSUE
Should the City Council approve a Drag Racing Rental Agreement with Solutions
Management, LLC for the purpose of holding drag racing events during the calendar
year 2010 at Pueblo Motorsports Park located with the Honor Farm Properties?
Approval of the Resolution.
BACKGROUND
Solutions Management, LLC (SMLLC) was selected through the Request for Proposals
(RFP) process to conduct drag racing events at Pueblo Motorsports Park. SMLLC
desires to conduct a significant number of drag racing events at Pueblo Motorsports
Park during the calendar year 2010. City Administration and SMLLC have negotiated a
daily rental fee for the use of the Drag Premises and Shared Premises for this purpose
as contained in the Agreement. This Resolution will approve a rental agreement
between the City and SMLLC.
FINANCIAL IMPACT
Based on a minimum of 28 track rentals per year, SMLLC has the potential to generate
approximately $30,800 in revenue for the Honor Farm Enterprise in 2010. The
Agreement also provides for SMLLC to reimburse the Honor Farm Enterprise for actual
personnel costs incurred by the Honor Farm Enterprise to operate City equipment
specifically for and during SMLLC events. SMLLC currently has all 28 events
scheduled.
DRAG RACING RENTAL AGREEMENT BETWEEN THE CITY OF PUEBLO
AND SOLUTIONS MANAGEMENT, LLC
FOR CERTAIN PREMISES AT PUEBLO MOTORSPORTS PARK
This Agreement ( "Agreement') is entered into this 22nd day of March 2010, by and
between the City of Pueblo, a Municipal Corporation, acting by and through its Honor Farm
Properties Enterprise ( "City "), and Solutions Management, LLC ( "SMLLC).
RECITALS
A. SMLLC represents that it is experienced in conducting drag racing events at
various venues.
B. The City owns and operates the Honor Farm Properties (HFP) located at 3733
North Pueblo Boulevard, Pueblo, Colorado and the Pueblo Motorsports Park (PMP), located
within the HFP.
C. SMLLC wishes to rent certain specific facilities at PMP from the City to conduct
drag racing events under and in accordance with the terms and conditions set forth in this
Agreement.
In consideration of the foregoing recitals and the terms and conditions set forth herein,
the Parties agree as follows:
TERMS AND CONDITIONS
1. DRAG PREMISES. The Drag Premises consist of the following facilities at PMP: Drag
Strip, Drag Strip Return, Drag Strip Runoff, Drag Strip Paddock, Drag Racing Tower, Elapsed
Time Ticket Building, Pole Barn, Tech Building, Weigh Scale Building, West Drag Strip Wall,
Staging Lanes, and two Sheds located near the Tower ( "Premises ").
2. SHARED PREMISES. The Shared Premises consist of the following facilities at PMP:
Parking Lots, Cafd, Caf6 Bathrooms, Quarter Midget Bathrooms and Showers, Front Gate Ticket
Building, Camping Area, and all roads providing access to these places. Upon request, City
may, in its sole and absolute discretion, grant SMLLC shared use of the VIP Room.
3. ACCESS AND USE OF DRAG PREMISES ONLY DURING SMLLC EVENTS.
SMLLC and its employees, contractors, customers, and guests shall have the right to access and
use the Drag Premises and Shared Premises only on event days scheduled for SMLLC under this
Agreement ( "Events "). For purposes hereof "day" means: for Friday -only Event, 4:00 p.m. to
2:00 a.m. the following morning; for Weekend Event, 6:00 a.m. Saturday to 6:00 p.m. Sunday;
for Friday- Saturday- Sunday Event, 4:00 p.m. Friday to 6:00 p.m. Sunday. If additional hours are
needed before or after an Event to prepare for an Event or to repair or clean up after an Event,
SMLLC shall obtain permission from the track supervisor or his designee. SMLLC and its
employees, contractors, customers, and guests do not have a right to enter, access, or use the
Premises at any other times. SMLLC and its employees, agents, contractors, customers, and
guests may camp overnight in designated camping area if granted permission by the track
supervisor, in his sole and absolute discretion. If Renter permits any of his employees, agents,
contractors, customers or guests to camp, after obtaining permission from the track supervisor,
SMLLC shall provide two (2) security personnel to patrol the Event and Shared Premises from
dusk to dawn at SMLLC's sole expense.
4. USE OF SHARED PREMISES WITH OTHER RENTERS. SMLLC understands
and agrees that the City may enter into agreements with other parties to rent nearby and adjacent
premises at PMP, including but not limited to the Quarter Midget Track, the Motocross Track,
and the Dirt Oval Track ( "Other Renters ") and that events at these nearby and adjacent facilities
may occur during Events. SMLLC understands that the Other Renters and their employees,
contractors, customers and guests may access and use the Shared Premises. SMLLC agrees to
share access and use of the Shared Premises with Other Renters and their employees, contractors,
customers and guests, and such access and use shall not be considered a trespass or a breach of
any right or covenant under this Agreement. SMLLC shall comply with any reasonable rules
and regulations that the City may promulgate to coordinate and facilitate cooperative use of these
shared areas.
5. CITY'S RIGHT TO RENT DRAG PREMISES TO OTHERS WHEN EVENT NOT
SCHEDULED. SMLLC understands and agrees that City may rent the Drag Premises to other
persons when the Premises are not scheduled for an SMLLC Event and such access and use of
the Premises shall not be considered a trespass or a breach of any right or covenant under this
Agreement. In the event other persons require the use of the City's specialized timing
equipment, City shall coordinate the operation of said equipment with SMLLC.
6. CITY'S RIGHT TO ACCESS PREMISES. The City and its employees, contractors,
vendors, licensees, and others may access the Drag Premises and Shared Premises at any time,
including during an SMLLC Event, and such access and use shall not be considered a trespass or
a breach of any right or covenant under this Agreement. City agrees to provide a list of
employees, contractors, vendors, licensees, and others who may be authorized to access the Drag
Premises during SMLLC Events for verification purposes.
7. TERM. The term of this Agreement is from March 22, 2010, to December 31, 2011,
unless earlier terminated as herein provided.
S. EVENTS.
(a) SMLLC shall schedule, conduct, and pay rent for a minimum of 28 Events, open to
the public, at the Drag Premises during each of the two Periods in the term of this
Agreement: (period 1: March 22, 2010 -- December 31, 2010 and period 2: January 1,
2011 - December 31, 2011) . SMLLC shall meet with the City's representative at PMP at
least monthly. The City shall have absolute discretion in accepting or refusing scheduling
of Events, but shall provide SMLLC with enough scheduling space on the PMP calendar
to schedule at least 28 one -day Events. SMLLC may cancel up to two scheduled Events
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upon 24 hours prior written notice given to City and each party shall be released from all
obligations with respect to the Event, provided that SMLLC shall remain liable for the
rent on at least twenty -eight (28) Events during each of the two periods in the term of this
Agreement (period 1: March 22, 2010 -- December 31, 2010 and period 2: January 1,
2011 - December 31, 2011) . If SMLLC does not timely cancel an Event, SMLLC shall
pay all rental fees SMLLC would have paid if the Event had been completed and not
cancelled, provided that if SMLLC cancels an Event due to the dangerous condition of
the paved track or dangerous weather conditions, as determined in the sole and absolute
discretion of the Director of Parks and Recreation or his designee, SMLLC shall not be
obligated to pay a rental fee for the Event.
(b) SMLLC shall have the right to schedule 28 Events in period 2 of the term of this
Agreement (January 1, 2011- December 31, 2011) on the same specific dates on which it held
Events during period 1 of this Agreement (March 22, 2010 -- December 31, 2010), provided that:
(1) SMLLC is not in default of this Agreement; and (2) SMLLC confirms scheduling of the
Events on those specific dates with the City's representative in writing by no earlier than
December 15, 2010 and no later than January 15, 2011.
9. DAILY RENTAL FOR EVENTS.
(a) SMLLC shall pay the City a rental fee of $1,100 for each calendar day ( "Rental Fee "),
or portion of a calendar day, on which an Event is scheduled or occurs, whether or not such
Event is actually held.
(b) In addition to the Rental Fee, SMLLC shall reimburse City for actual personnel costs
incurred by City to operate City equipment specifically for and during SMLLC Events. Actual
personnel costs include hourly wages and all Medicare, Workers' Compensation, and PERA
contributions ( "Personnel Costs "). The Rental Fees and Personnel Costs for each event are due
within 5 days after the conclusion of each Event. After 30 days, a late fee of $50.00 will apply.
Interest shall accrue at the rate of 8% per annum on all Rental Fees and Personnel Costs past due
for more than 30 days.
(c) If SMLLC conducts fewer than twenty -eight Events in either one of the two periods in
the term of this Agreement (period 1: March 22, 2010 -- December 31, 2010 and period 2: January
1, 2011 - December 31, 2011), SMLLC shall pay to the City additional rent in the following
amount for each such period according to the following formula: twenty -eight (28) minus the
number of Events actually held in that period, multiplied by the One Thousand and One Hundred
Dollars ($1,100). This additional rent shall be due for each period in which fewer than twenty -
eight (28) Events were actually held. This additional rent shall be paid in full on or before
January 15 of the year following the end of each period.
10. ADDITIONAL SMLLC OBLIGATIONS. SMLLC shall, in addition to other duties
and obligations provided in this Agreement, perform the following obligations:
(a) Provide all employees, officials and other labor necessary to conduct Events, except
as otherwise provided in this Agreement.
(b) Provide security for all Events.
(c) Provide on -site technical inspectors to inspect race vehicles.
(d) Promote and market all Events.
(e) Publish Event schedules.
Page 3 of 15
(f) SMLLC shall maintain its existing web domain, www.pueblomotorsportspark.com
for SMLLC managed Events and link the same to the City's website. SMLLC's website shall
clearly indicate that SMLLC is an independent entity and not a City department or agency and
therefore has no authority or jurisdiction over PMP, the HFP, or the City of Pueblo. SMLLC's
website shall also clearly indicate that visitors to the domain www.pueblomotorsportspark.com
are hereby directed to access information about the track and any events held at the track
excluding drag racing events through the City's PMP website, www.pueblomotorsportspark.us
in the future. Upon expiration or early termination of this Agreement, SMLLC agrees to transfer
the rights to said web domain, www.pueblomotorsportspark.com to the City.
(g) Notify the City immediately of any accidents, injuries, or crimes that occur at
Events.
(h) Report usage and pay to refill and recertify any fire extinguishers that are used
during Events
(i) Provide and maintain on -site Material Safety Data Sheets for all chemicals and
products stored or used on site.
0) Notify the Pueblo Fire Department in the event of any fire or spill of any fuel, oil, or
chemicals anywhere at the Drag Premises, Shared Premises, or anywhere at PMP.
(k) Identify and provide any additional installations for electricity, gas, water, sewer or
other utilities necessary to conduct Events. SMLCC shall coordinate with City to install at
SMLLC's cost any improvements authorized by the City.
(1) Meet the non - discrimination and equal employment requirements under §1 -8 -3,
Pueblo Municipal Code.
(m) Reimburse the City for the full amount of any employer contribution required to be
paid by the City to the Public Employee's Retirement Association (PERA) for salary or other
compensation paid to any PERA retiree under this Agreement as described in Exhibit B —
Colorado Public Employees Retirement Association Supplemental Questionnaire to be
Answered by any business Performing Services for the City of Pueblo
(n) Provide track clean -up materials and clean up oil, fuel, water, and anti -freeze leaks
and spills for SMLLC Events.
(o) Provide track prep chemicals and applications for SMLLC Events.
(p) Remove any debris left on the track areas immediately following each Event
(q) Provide general cleanup of the Drag Premises and remove operations equipment
from the Drag Premises after each Event.
(r) Any costs incurred by SMLLC to repair, replace, or maintain the City's facilities,
equipment, spare parts, or other items necessary to conduct SMLLC Events shall be reimbursed
by City to SMLLC, provided said costs were authorized in advance by City.
11. ADDITIONAL CITY OBLIGATIONS. The City shall, in addition to other duties and
obligations provided in this Agreement, perform the following obligations:
(a) Provide one sweeper truck, two 4- wheelers, International tractor with box drag,
tractor rake, skidsteer, oil cleanup truck, fire suppression equipment, (100 gallon aluminum tank,
1.5 inch fire hose, nozzle, fire nozzle reel, two CO2 bottles, CO2 bottle fasteners, CO2 bottle
regulator with hose, and jaws of life) and mobile propane tanks during Events. If a second
sweeper truck is requested, SMLLC shall reimburse the City for its use at the rate of $60/hr. for a
minimum of two hours, or $200 /day. If a second sweeper truck is requested, SMLLC shall
reimburse the City for its use at the rate of $60/hr. for a minimum of two hours, or $200 /day.
Page 4 of 15
(b) Provide one trailer with track sprayer, gas powered air compressor, air regulator,
spray nozzles, air hose, valves for traction compound, and methanol tanks for Events.
(c) Provide, maintain, repair, and supply required spare components for timing
equipment.
(d) Provide, maintain, and repair facility lights and two diesel powered trailer lighting
systems for evening Events. SMLLC shall reimburse City for the diesel fuel required to operate
the trailer lighting system using current gas station rates.
(e) Provide, maintain, and repair sound system for announcing Events.
(f) Make repairs to the drag strip asphalt as allocated within the HFP annual budget. In
the event the track becomes unsafe or is found to have safety issues, it shall be a priority to make
approved repairs. SMLLC shall be involved in any safety planning issues that involve drag
racing or drag strip premises.
(g) Tune -up the Compulink timing computer through the manufacturer by no later than
April 1, 2010.
(h) Provide the Drag Premises and Shared Premises to SMLLC in a clean and orderly
condition before each SMLLC Event.
(i) Provide an adequate number of large and small fire extinguishers, as determined by
the City and NHRA underwriting policies
0) Install guard rails prior to an Event and remove them following an Event.
(k) Clean track, paddock, and staging lanes of all debris prior to an Event
(1) Provide, maintain, and repair 15 portable radios and 8 headsets for portable radios.
12. SMLLC CHARGES TO ITS CUSTOMERS. SMLLC may charge reasonable and
non - discriminatory fees for admission and use of the Drag Premises by their customers and
guests at Events. SMLLC shall set and file with the City a fee schedule annually no later than 10
days prior to the first scheduled Event of the year. Within 30 days following the conclusion of
the racing season each year, SMLLC shall file with the City a comprehensive financial statement
showing revenues and expenditures for that year as it relates to this Agreement.
13. RELEASE AND WAIVER OF LIABILITY. Before SMLLC Events commence,
SMLCC shall obtain any releases or waivers of liability from persons entering the Premises that
SMLCC's insurance carrier may require, provided that all such releases and waivers of liability
shall release the City of Pueblo and its officers, employees and agents from any and all liability
for property damages, personal injury, and death caused by, related to, or in any way arising
from any act or omission by any person at PMP. SMLLC shall retain these releases or waivers of
liability for as long as their insurance carrier may require. SMLLC shall bear sole responsibility
for full compliance with this Section. Entry into the PMP by any person prior to the execution of
any required releases or waivers shall constitute a material breach of this Agreement by SMLLC.
14. NON - TRANSFERABLE. SMLLC shall not sublease, transfer, or assign to any other
party this Agreement or any rights hereunder without the prior written consent of City. Any
attempt to sublease, transfer, or assign this Agreement, or any of SMLLC's rights hereunder,
without the prior written consent of City is void and shall constitute a material breach of this
Agreement. In the event of any assignment, sublease or transfer, SMLLC shall not be released
from any responsibility hereunder and shall remain liable and responsible to City for such
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subleasee, transferee, or assignee and its activities in accordance with the terms and conditions of
this Agreement.
15. PHOTOGRAPHY, VIDEO, TELEVISION, SOUND RECORDINGS, AND FILM
OF EVENTS. SMLLC may photograph, film, or video tape the Events or any part thereof for
private, free, non - commercial, home exhibition, or for promotion of SMLLC events, but shall not
sell or license for sale, reproduction, publication, exhibition, broadcast, or distribution, any
image, sound recording, photograph, video tape, or film of the Event, unless SMLLC first
obtains a separate written agreement with City authorizing such activities.
16. CERTIFICATE OF INSURANCE. Upon execution of this Agreement but in no event
less than seven (7) days prior to the first SMLLC Event of each year, SMLLC shall provide City
a Certificate of Insurance showing evidence of liability coverage for bodily injury and property
damage including contractual coverage with a combined single limit of not less than Two
Million Dollars ($2,000,000.00) per occurrence, with a minimum Three Million ($3,000,000.00)
annual aggregate, and shall be endorsed to add as additional insureds the City of Pueblo and the
City of Pueblo acting by and through its Honor Farm Properties Enterprise and their officers,
employees and agents (collectively, the "Indemnified Parties "). Such policies shall state that the
insurance is primary in coverage to any other insurance which may be available to City.
Concurrent with the above mentioned Certificate of Insurance evidencing liability coverage,
SMLLC or the applicable employer shall also provide City a Certificate of Insurance showing
evidence of statutory workers' compensation insurance and shall contain an endorsement
waiving subrogation against both the City of Pueblo and the City of Pueblo acting by and
through its Honor Farm Properties Enterprise. Workers' compensation coverage shall be
obtained notwithstanding that SMLLC may have no employees as defined under said Act or that
SMLLC might otherwise avail itself of an exemption under the Act from any legal requirement
to obtain such coverage. Such insurance shall cover all employees of SMLLC performing work
at the Drag Premises and Shared Premises irrespective of whether such employees may be
shareholders, managers,' partners, or owners of SMLLC or exempt employees under the Act.
SMLLC may purchase, for non - statutory employees, a participant accident insurance policy
which would include death, disability, dismemberment, and medical benefits. Any independent
contractors of SMLLC shall be covered under SMLLC's workers' compensation insurance
and /or participant accident insurance policy, or show evidence that said independent contractor is
covered under its own workers' compensation insurance policy. SMLLC shall have full and sole
responsibility for ensuring compliance with this Section, including without limitation
indemnification required under this Agreement. All insurance policies required hereunder shall
provide that such policies not be cancelled or reduced without thirty (30) days' advance written
notice to the Indemnified Parties. Failure or SMLLC to comply with the provisions of this
Section shall constitute a material breach of this Agreement by SMLLC. Coverage and limits
enumerated in this insurance provision represent only the minimum insurance required by the
City, and SMLLC should rely on its expertise to obtain any additional insurance coverage
needed for the City and SMLLC in its performance under this Agreement
17. INDEMNIFICATION. SMLLC agrees to defend, hold harmless, and indemnify, the
City, the Honor Farm Enterprise, and their officers, employees, contractors, and agents, from any
and all claims, including reasonable attorney's fees and costs, of liability whether by reason of
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injury to or death of the person or of damage to the property of another or otherwise arising in
connection with any use of the Drag Premises and Shared Premises by SMLLC, or any default or
breach of any term of this Agreement by SMLLC, excepting only claims based solely on the
Indemnified Parties' gross negligence, bad faith, or intentional acts. The Indemnified Parties
shall have the right to retain their own counsel, in which case those reasonable attorney and
expert fees and costs shall be covered by SMLLC's indemnification obligation in this Section.
This Section shall survive termination or expiration of this Agreement.
18. PROPERTY USE AND DAMAGE. SMLLC shall maintain a clean and safe activity
area throughout each Event and, upon completion of each Event, SMLLC shall repair and restore
the Drag Premises and all its tracks and facilities to the same condition in which it was found.
SMLLC shall repair any and all damages to the Drag Premises and Shared Premises (including
without limitation any resources, facilities, or property of City) caused by or attributable to
SMLLC's activities, and City or its designee shall be the sole judge of the extent of such damage
and the adequacy of any repairs or restoration. Normal wear and tear shall not be considered
damage. No physical alteration to the Drag Premises or Shared Premises (including without
limitation installation or modification of new or existing structures, alteration of any trees or
other plants, and disturbance of any ground surface or cover) may be made without City's prior
written consent. SMLLC shall remove, clean up and remediate all contamination caused by or
resulting from the release, discharge or spill of fuel and other petroleum products and indemnify,
defend and save harmless City and its officers, employees, agents, and contractors therefrom.
This indemnification provision shall survive the expiration or termination of this Agreement.
SMLLC shall be permitted to inspect Drag Premises with the track supervisor or designee prior
to and after an Event to identify damages.
19. UNSAFE OR UNLAWFUL CONDUCT. Notwithstanding any provision herein to the
contrary, City or its designee shall have the sole discretion to terminate any activity permitted
hereunder when such action is deemed necessary or appropriate for the safety of lawful users of
the Drag Premises and Shared Premises, for the protection of PMP or resources, property or
equipment of City, or for the prevention of a violation of any local, state, or federal law or
regulation or the Easement relating to or arising out of the use of the Drag Premises or Shared
Premises or any activity permitted hereunder.
20. NO REPRESENTATION OR WARRANTY OF CONDITION OR FITNESS. The
Drag Premises and Shared are provided on an "as is" "with all its faults" basis, and City makes
no representation or warranty as to the condition or fitness of the Drag Premises and Shared
Premises for SMLLC's Events or for any particular use or purpose. Accordingly, SMLLC is
hereby advised that SMLLC shall be solely responsible for personally inspecting the Drag
Premises and Shared Premises before execution of this Agreement and commencement of any
Event. SMLLC's commencement of any Event shall constitute an express acknowledgement by
SMLLC that the Drag Premises and Shared Premises are safe and adequate for SMLLC's
permitted use. SMLLC shall be responsible for all equipment and facilities located at the
Premises, and for adequate safeguards for the protection of SMLLC, its employees, contractors,
agents, representatives, persons engaged in an Event and members of the public admitted to the
Event PMP. Notwithstanding any provision in this Agreement to the contrary or which may be
construed to the contrary, City assumes no obligation or responsibility to keep or maintain the
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Drag Premises and Shared Premises or any track or facility thereon in good and safe condition,
appearance or state of repair, regardless of cause of need for maintenance and repair. SMLLC's
sole remedy if the Drag Premises and Shared Premises, its tracks or facilities are not maintained
in good and safe condition, appearance or state of repair is to terminate this Agreement.
21. RELATIONSHIP. Nothing in this Agreement is intended to, or shall be deemed to
constitute, a partnership or joint venture between the Parties, or to create any agency or partner
relationship between the Parties. Neither Party shall hold itself out as a partner, joint venture,
agent, or representative of the other under this Agreement.
22. INTELLECTUAL PROPERTY. SMLLC shall NOT use any name, trademark, service
mark, or logo of City including the name "Pueblo Motorsports Park," or any similar name, for
any purpose, without the prior review of all proposed uses by SMLLC and the expressed prior
written consent of City, as the case may be. Notwithstanding the foregoing, SMLLC may use
the name "Pueblo Motorsports Park" in accurate and truthful advertising solely as a means for
identifying the location of an Event.
23. JURISDICTION/VENUE. This Agreement and all rights and obligations of the Parties
shall be construed and governed in accordance with the laws of the State of Colorado. With
respect to any claims or litigation associated in any manner with or arising out of this
Agreement, the Parties agree to submit to the exclusive personal jurisdiction of the District Court
in and for Pueblo County, Colorado. Exclusive venue for any such litigation shall be Pueblo
County, Colorado.
24. ATTORNEY'S FEES AND COSTS OF COLLECTION. In the event that it becomes
necessary for the City to bring any action or proceeding to collect unpaid rent, fees or charges, to
enforce any other provision of this Agreement, to recover damages for SMLLC's breach of this
Agreement, or to seek specific performance, the City shall be entitled to collect its reasonable
attorneys fees, costs of suit, and costs of collection as part of the judgment in such action or
proceeding.
25. MINORS. SMLCC shall obtain any releases or waivers of liability from any person
under the age of 18 ( "Minor ") and the parent(s) of the Minor entering the Premises that
SMLCC's insurance carrier may require, provided that all such releases and waivers of liability
shall release the City of Pueblo and its officers, employees and agents from any and all liability
for property damages, bodily injury, and death caused by, related to, or in any way arising from
SMLLC's operations. SMLLC shall retain these releases or waivers of liability for as long as
their insurance carrier may require. SMLLC shall bear sole responsibility for full compliance
with this Section. Entry into the PMP by any person prior to the execution of any required
releases or waivers shall constitute a material breach of this Agreement by SMLLC. These
documents must be notarized or signed in the presence of SMLLC personnel and are required
before said Minor enters into PMP. All executed documents shall be delivered to City prior to
the end of each Event. SMLLC shall bear sole responsibility for full compliance with this
Section. Entry by any individual prior to the execution of the Agreements listed above in this
Section by the proper party shall constitute a material breach of this Agreement by SMLLC.
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26. OTHER ACTIVITIES. Any activities other than drag racing to be conducted in the
Drag Premises and Shared Premises (including without limitation food service or catering,
entertainment, product or merchandise sales, press conferences, or other commercial or
professional activities) must be approved in advance in writing by City, and shall be subject to
the requirements, conditions, and fees established by City. All individuals engaging in such
activities shall be required to execute any releases or waivers of liability in accordance with this
Agreement. SMLLC shall bear sole responsibility for full compliance with this Section.
27. RIGHT TO REFUSE ACCESS. City may, at City's sole discretion, deny access to, or
remove from, the Drag Premises and Shared Premises any individual(s) who are disruptive, fail
to obey any lawful order, or fail to comply with any covenant or provision of this Agreement.
28. IMPROVEMENTS. SMLLC shall not make any improvements to the Drag Premises
and Shared Premises without first obtaining the written approval of the City Manager to such
improvements. SMLLC shall maintain any such improvements in good and safe condition.
Upon expiration or termination of this Agreement, all equipment, improvements, and fixtures at
the Drag Premises and Shared Premises shall become the City property.
29. SALE AND TRANSFER OF CERTAIN EQUIPMENT, ELECTRONICS, PARTS,
AND OTHER ITEMS. SMLLC hereby sells and transfers to City for the sum of $8,000 the
items listed on Exhibit C — Sale and Transfer of Certain Equipment, Electronics, Parts, and Other
Items that were previously provided by SMLLC for use at the Drag Strip. The City shall pay this
sum to SMLLC within 30 days after the date this Agreement is signed by both parties.
30. THIRD PARTIES. Notwithstanding anything in this Agreement to the contrary, SMLLC
agrees that City is not liable or responsible for the acts or omissions of the exclusive vendors,
preferred vendors, security personnel or other third parties made available by or through City, at
City's sole option, to SMLLC under this Agreement at SMLLC's request ( "Third Parties ").
SMLLC agrees that the Third Parties are independent contractors made available by City solely
for the benefit of and as an accommodation to SMLLC and no contractual, tort or other liability
results from or arises out of City making or failure to make the Third Parties available to
SMLLC.
31. TERMINATION AND DEFAULT. If either party is in default hereunder, the non -
defaulting party may give written notice describing the default to the defaulting party. If the
defaulting party does not correct such default within twenty (20) days after receipt of said notice,
or if the default cannot be corrected within said 20 -day period and the defaulting party fails to
commence action to correct the default within said 20 -day period and thereafter diligently
pursues corrective action, the non - defaulting party may upon an additional five (5) days' notice
given to the defaulting party terminate this Agreement. Notwithstanding the foregoing, if
SMLLC commits a material breach as defined in this Agreement, City or SMLLC may terminate
this Agreement upon five (5) days' prior written notice to SMLLC specifying the material breach
and the date of termination. Except for accrued rights and liabilities and those covenants which
survive termination hereunder, upon such termination each party shall be released from all future
duties and obligations hereunder.
Page 9 of 15
32. ADDITIONAL DOCUMENTS OR ACTION. The Parties agree to execute any
additional documents or take any additional action that may be necessary to carry out this
Agreement.
33. FORCE MAJEURE. Any delays in or failure of performance by any party of its
obligations under this Agreement shall be excused if such delays or failure are a result of acts of
God, fires, floods, storms, lightning strikes, labor strikes, labor disputes, accidents, regulations or
orders of civil or military authorities, shortages of labor or materials, or other causes, similar or
dissimilar, which are beyond the control of such party. If delays cause an Event to be cancelled,
the minimum number of Events required by this Agreement shall be reduced proportionately.
34. BINDING EFFECT. This Agreement shall inure to the benefit of, and be binding upon,
the Parties, their respective legal representatives, successors, and assigns; provided, however,
that nothing in this paragraph shall be construed to permit the assignment of this Agreement
except as otherwise expressly authorized herein.
35. NON - EXCLUSIVE AGREEMENT. This Agreement does not grant SMLLC any
exclusive right to promote, market, or solicit sponsors for drag racing events or to place any
advertising within the Premises. The City may enter into the same, similar, or different
agreements with other persons to promote, market, or solicit sponsors for drag racing events,
PMP, or the HFP.
36. INCOME FROM SPONSORSHIPS AND ADVERTISING.
(a) SMLLC shall pay to City 25% of the total sponsorship and advertising income that
SMLLC receives in excess of $10,000 combined total during the term of this Agreement for any
sponsorships or advertisements, written, video, television, radio, or verbal in form, that occur at
or on any part of PMP property. SMLLC may affix City approved advertising and marketing
materials and sponsor boards (Advertisements) on the Tech Building, Tower, Timing boards, and
Drag Strip west wall during the term of this Agreement, provided the method for affixing said
Advertisements is approved in advance by City. SMLLC shall be responsible for all costs
associated with the installation, maintenance, and removal of Advertisements.
(b) Advertisements shall be strictly and completely commercial in nature, rather than
religious, political, philosophical, economic, or social in nature.
(c) Advertisements placed on Facilities shall not:
(1) Contain false, inaccurate or deceptive claims or statements;
(2) Contain libelous, slanderous, or derogatory statements or remarks
concerning any person or group of persons.
(3) Take a position on or convey a message regarding religious,
political, philosophical, economic, or societal issues;
(4) Promote or solicit any illegal product or activity or any product
prohibited from sale to minors in such a way as to appeal particularly to persons under legal age;
(5) Contain, depict, or exhibit any obscene act or image, real or
simulated, as defined in § 18 -1 -701, C.R.S.;
(6) Contain, depict, or exhibit any obscene language or gesture, as
defined in §18 -9 -11 l; or
Page 10 of 15
(7) Contain, depict, or exhibit any image of any act, real or simulated,
which would constitute public indecency or indecent exposure, as defined in §§ 18 -7 -301 and
18 -7 -302, if performed by a person in a public place.
(d) PMP shall not be treated or construed as a public forum for speech, discussion, or
debate. PMP is not open to the public for statements or speech. PMP is dedicated to motorsports
and not to general debate or the free exchange of ideas.
(e) Upon verbal notice from the City, SMLLC shall, within two hours after receiving
verbal notice and at its sole expense, remove any advertising that the City determines in its sole
and absolute discretion violates any provision in this Section. In the event SMLLC fails,
neglects or refuses to remove the advertising specified in the notice within 2 hours or within such
greater time as may be specified in the verbal notice, the City shall have the right, in its sole and
absolute discretion, to remove or cover the advertising specified in the notice. SMLLC shall be
liable for the City's costs in removing or covering the advertising specified in the notice. This
remedy shall be in addition to all other remedies provided in this Agreement or by law.
(f) SMLLC hereby expressly, knowingly, intelligently, and with advice from its legal
counsel, waives and surrenders any right that it may have to allege, state, or take any legal
position contending that any provision of this Section violates any right that SMLLC, its
customers, its advertisers, or the public may have to free speech or press under the constitutions,
statutes, and common law of the United States or the State of Colorado.
(g) In the event that any court of competent jurisdiction determines that any provision in
this Section violates any right that any person may have to free speech or press contained in the
constitutions, statutes, and common law of the United States or the State of Colorado, then the
Parties shall reform and amend this Section to the minimum extent necessary to comply with the
Court's determination and order. The other terms and conditions of this Agreement shall remain
in full force and effect unless either Party elects to terminate this Agreement.
37. NOTICES. Any notice required or permitted by this Agreement shall be in writing,
except where verbal notice is specifically provided, and shall be deemed to have been
sufficiently given for all purposes if sent by certified mail or registered mail, postage and fees
prepaid, addressed to the party to whom such notice is to be given at the following address or at
such other address as may be subsequently furnished in writing to the other party:
If to City: City Manager, City of Pueblo, One City Hall Place, Pueblo, CO 81001; with an
additional copy to City Attorney, City of Pueblo, 503 N. Main St. Suite 203, Pueblo, CO 81003
If to SMLLC: Shaun Thompson, 1028 E. Sequoya Drive, Pueblo West, CO 81007
Such notice shall be deemed to have been given when deposited in the regular United States
mail.
38. PARAGRAPH CAPTIONS. The captions of the paragraphs are set forth only for the
convenience and reference of the Parties and are not intended in any way to define, limit or
describe the scope or intent of this Agreement.
39. INTEGRATION, SEVERABILITY, AMENDMENT, AND COUNTERPARTS.
This Agreement represents the entire agreement between the Parties and supersedes all prior
Page 11 of 15
discussions and written agreements or understandings. This Agreement may be amended only
by an instrument in writing signed by the Parties. If any provision of this Agreement is held
invalid or unenforceable, no other provision shall be affected by such holding, and all of the
remaining provisions of this Agreement shall continue in full force and effect. This Agreement
may be executed in multiple counterparts, each of which shall be deemed an original, and all of
which together constitute one and the same agreement.
40. NO THIRD PARTY BENEFICIARIES; NO WAIVER OF IMMUNITIES. Nothing
in this Agreement is intended, nor should it be construed, to create any rights, claims, or benefits
or assume any liability for or on behalf of any third party, or to waive any immunities or
limitations conferred under federal or state law, including but not limited to the Colorado
Governmental Immunity Act, § 14 -10 -101 et seq., C.R.S.
41. WAIVER OF BREACH. A waiver by any party to this Agreement of the breach of any
term or provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by either party.
42. FUND AVAILABILITY. Financial obligations of City, if any, after the current year in
which this Agreement is signed by both parties are contingent upon funds for that purpose being
appropriated, budgeted and otherwise made available by Pueblo City Council and City executive
departments. Nothing herein shall be deemed to create an ongoing financial obligation of City.
43. NO MULTI -YEAR FISCAL OBLIGATION ON CITY. This Agreement is expressly
made subject to the limitations of the Colorado Constitution. Nothing herein shall constitute, nor
be deemed to constitute, the creation of a debt or multi -year fiscal obligation or an obligation of
future appropriations by the City Council of Pueblo, contrary to Article X, § 20 Colorado
Constitution or any other constitutional, statutory or charter debt limitation. Notwithstanding
any other provision of this Agreement, with respect to any financial obligation of the City which
may arise under this Agreement in any fiscal year after 2010, in the event the budget or other
means of appropriations for any such year fails to provide funds in sufficient amounts to
discharge such obligation, such failure shall not constitute a default or breach of this Agreement,
including any sub - agreement, attachment, schedule, or exhibit thereto, by the City.
44. AUTHORITY OF SIGNERS. Each person signing this Agreement on behalf of a party
represents and warrants that he or she has the requisite power and authority to enter into, execute,
and deliver this Agreement on behalf of such party and that this Agreement is a valid and legally
binding obligation of such party enforceable against it in accordance with its terns.
45. USE OF PREMISES SUBJECT TO EASEMENT. SMLLC understands and agrees
that this Agreement and SMLLC's use of the Drag Premises and Shared Premises is subject to
the conditions and limitations of the Conservation Easement recorded July 2, 2001 as Reception
No. 1390542 in the records of the Pueblo County Clerk and Recorder ( "Easement "). SMLLC
acknowledges receipt of a copy of the Easement. City makes no representation or warranty that
SMLLC's intended use of the Drag Premises or Shared Premises or the provisions of this
Agreement are approved uses or allowed under the Easement.
Page 12 of 15
DATED this 9th day of March 2010.
SOLUTI ) MANAGEMENT, L
By: Z
j I v 110PnPS61✓
Printed Name:
Title:
de 4
ATTEST:
PUEBLO, A MUNICIPAL CORPORATION
By: uJ at' -
President of City Council
LAwRENCK t,J. Areocz. 0
Printed Name:
1 nf7 of CST u, Ca N C.Z
Title:
ATTEST:
City Mrk
APPROVED AS TO FO .
6
Thomas J. Flor
Interim City Attorney
Page 13 of 15
1 w /:Iitf It1Il
COLORADO PUBLIC EMPLOYEES RETIREMENT ASSOCIATION
SUPPLEMENTAL QUESTIONNAIRE TO BE ANSWERED BY
ANY BUSINESS PERFORMING SERVICES FOR THE CITY OF PUEBLO
Pursuant to section 24- 51- 1101(2), C.R.S., salary or other compensation from the employment, engagement,
retention or other use of a person receiving retirement benefits (Retiree) through the Colorado Public Employees
Retirement Association (PERA) in an individual capacity or of any entity owned or operated by a PERA Retiree or
an affiliated party by the City of Pueblo to perform any service as an employee, contract employee, consultant,
independent contractor, or through other arrangements, is subject to employer contributions to PERA by the City of
Pueblo. Therefore, as a condition of contracting for services with the City of Pueblo, this document must be
completed, signed and returned to the City of Pueblo:
(a) Are you, or do you employ or engage in any capacity, including an independent contractor, a PERA
Retiree who will perform any services for the City of Pueblo? Yes No (Must sign below whether you
answer "yes" or "no ".)
(b) If you answered "yes" to (a) above, please answer the following question: Are you 1) an individual, 2)
sole proprietor or partnership, or 3) a business or company owned or operated by a PERA Retiree or an affiliated
party?
Yes , No If you answered "yes" please state which of the above listed entities (1, 2, or 3) best describes
your business:
(c) If you answered "yes" to both (a) and (b), please provide the name, address and social security number
of each such PERA Retiree.
Name
Address
Address
Social Security Number Social Security Number
(If more than two, please attach a supplemental list)
If you answered "yes" to both (a) and (b), you agree to reimburse the City of Pueblo for any employer
contribution required to be paid by the City of Pueblo to PERA for salary or other compensation paid to you as a
PERA Retiree or paid to any employee or independent contractor of yours who is a PERA Retiree performing
services for the City of Pueblo. You further authorize the City of Pueblo to deduct and withhold all such
contributions from any moneys due or payable to you by the City of Pueblo under any current or future contract or
other arrangement for services between you and the City of Pueblo.
Failure to accurately complete, sign and return this document to the City of Pueblo
may result in your being denied the privilege of doing business with the City of Pueblo.
Signed 20
A
Name:
Title:
For purposes of responding to question (b) above, an "affiliated party" includes (1) any person who is the named
beneficiary or cobeneficiary on the PERA account of the PERA Retiree; (2) any person who is a relative of the PERA Retiree by
blood or adoption to and including parents, siblings, half - siblings, children, and grandchildren; (3) any person who is a relative of
the PERA Retiree by marriage to and including spouse, spouse's parents, stepparents, stepchildren, stepsiblings, and spouse's
siblings; and (4) any person or entity with whom the PERA Retiree has an agreement to share or otherwise profit from the
performance of services for the City of Pueblo by the PERA Retiree other than the PERA Retiree's regular salary or
compensation.
Page 14 of 15
EXHIBIT B
Sale and Transfer of Certain Equipment, Electronics, Parts, and Other Items
Page 15 of 15
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Page 15 of 15