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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 Page 2 of 15 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 Page 5 of 15 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 Page 6 of 15 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 Page 7 of 15 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. Page 8 of 15 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 o ry 0 0 o m o$ m o m g ro 0 o Zn m vi H U N N e-1 W N N N N UY i/1 „1 1� rl ti VF U1 VI ' j uF VI N N u> u? N U1 N r a � O N a Y a M � c a a FL " F a 8i _' O N a E H Y o m E 3 a m a u N E N 01 y c g C N — o ry E M pp L— Q' Y o. C C G O p r, 'L t z w 'N V N G `> U V C X ' g W L C W v 00 N u O d m v u 1 c` o u'u > m J I9 v o iia «N.q �YvoO m N vN E cE °mwv A a m q N N u N M m x a d o$ Q c u $ v m r E� ° a ' E w v w o 3 m E o � nn v E 3 v n y y $ m y s i. ` O M N N; N Q I- � V YI C `1 YO C C u s m° n v °' 'm m E Y, E 0 C0 g g E o E uv .�^rvig E 0) N Y Y Y Y m 0 0�0 V ry 3 1 .15 N C o E n �i n v a 'u v o m m E N N N N N ¢ ui 5 vi S o a CIO M p1 L V c r yR . 'f , O Cl — V ` V J J Q 10 .o g n a o LL o a V E u v c 2 rd3 3 `m3 vv o'3 "b N 0 0 0 t4 M U v E N a x w w m 3 wl von ¢ a ¢ ° i —' l7 0 0 �o 0 p N N N N N N N N N N N N N N N N N N N N N N N N H e1 ei N N\ N rl ry N N\ \ N \ m Q � t N M M M T T O Q Q ✓1 N 5 Page 15 of 15