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HomeMy WebLinkAbout11835RESOLUTION NO. 11835 A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, ACTING BY AND THROUGH ITS HONOR FARM PROPERTIES ENTERPRISE, AND THE SOUTHERN COLORADO QUARTER MIDGET RACING ASSOCIATION RELATING TO THE USE OF THE QUARTER MIDGET PREMISES AT 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 Agreement dated March 22, 2010, between City of Pueblo acting by and through its Honor Farm Properties Enterprise and Southern Colorado Quarter Midget Racing Association (SCQMA) relating to the use of the Quarter Midget Premises 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 -3 DEPARTMENT: OFFICE OF THE CITY MANAGER JERRY M. PACHECO, CITY MANAGER JENNY M. EICKELMAN, ASSISTANT CITY MANAGER TITLE A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, ACTING BY AND THROUGH ITS HONOR FARM PROPERTIES ENTERPRISE, AND THE SOUTHERN COLORADO QUARTER MIDGET RACING ASSOCIATION RELATING TO THE USE OF THE QUARTER MIDGET PREMISES AT PUEBLO MOTORSPORTS PARK AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME ISSUE Should the City Council approve an Agreement with Southern Colorado Quarter Midget Racing Association (SCQMA) for the purpose of holding Quarter Midget motorsports events during the period March 22, 2010, through December 31, 2011, with the option to renew the Agreement for an additional two years, at Pueblo Motorsports Park located within the Honor Farm Properties? Approval of the Resolution. BACKGROUND SCQMA has been permitted to make improvements to a portion of the Honor Farm Properties and to conduct Quarter Midget motorsports events at Pueblo Motorsports Park since 1978 without an official Agreement with the City. During this time, SCQMA, at its sole expense, has made significant improvements to the property, including the installation of an approved quarter midget oval track, timing tower, restroom /shower facilities, scale building, and other facilities important to the operation of Quarter Midget events. SCQMA maintains the Quarter Midget Premises with no assistance from the City. SCQMA desires to continue its operations for at least the next two years. City Administration and SCQMA have negotiated an Agreement for the use of the Quarter Midget Premises and Shared Premises for this purpose. This Resolution will approve an Agreement between the City and SCQMA. FINANCIAL IMPACT None. RENTAL AGREEMENT BETWEEN THE CITY OF PUEBLO AND THE SOUTHERN COLORADO QUARTER MIDGET RACING ASSOCIATION FOR THE QUARTER MIDGET 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 the Southern Colorado Quarter Midget Association, a Colorado Non - profit Association ( "SCQMA "). RECITALS A. SCQMA represents that it is experienced in operating a quarter midget track. B. The City owns and operates the Pueblo Motorsports Park ( "PMP ") located at 3733 North Pueblo Boulevard, Pueblo, Colorado at the facility sometimes known as the "Pueblo Honor Farm." C. SCQMA wishes to rent certain specific facilities at PMP from the City to conduct quarter midget racing events in accordance with the terms and conditions set forth in this Agreement. D. SCQMA's operations at the Quarter Midget Premises provide the City with substantial value in the form of wholesome recreation for youth, the erection and maintenance of buildings at the Quarter Midget Premises which benefit the public in general and the other motorsports activities at PMP, and the operation of the Quarter Midget Premises at zero costs to the City. In consideration of the foregoing recitals, and the terms, conditions set forth herein, the Parties agree as follows: TERMS AND CONDITIONS 1. QUARTER MIDGET PREMISES. The Quarter Midget Premises consist of the Quarter Midget Track, Quarter Midget Tower, scale building, covered starting area, storage /mechanic shop, and the immediate surrounding grounds. 2. SHARED PREMISES. The Shared Premises consist of the following facilities at PMP: Parking Lots, Cafe, Cafe Bathrooms, Quarter Midget Bathrooms and Showers, Tech Building, Front Gate Ticket Building, Front Gate Office, and all roads providing access to these places and to the Quarter Midget Premises. 3. USE OF QUARTER MIDGET PREMISES. SCQMA may use the Quarter Midget Premises for racing quarter midget automobiles ( "SCQMA Events ") and the storage of vehicles and equipment necessary to operate, supply, and maintain the Quarter Midget Premises for such Events. SCQMA shall not use the Quarter Midget Premises for any other purposes without first obtaining the written consent of the City. Specifically, SCQMA shall not use the Quarter Midget Premises for dirt oval track racing, roadcourse open lapping, drag racing, motocross, or bicycle motocross. 4. ACCESS AND USE OF PREMISES. (a) SCQMA may occupy, possess, and use the Quarter Midget Premises for quarter midget events and related activities and storage of vehicles and equipment necessary to operate, supply, and maintain the Quarter Midget Premises for these purposes. (b) SCQMA shall not use the Quarter Midget Premises for any other purposes without first obtaining the written consent of the City. Specifically, SCQMA shall not use the Quarter Midget Premises for motocross racing, automobile driving instruction, drag racing, or bicycle motocross. Violation of this provision is a material breach of this Agreement. 5. SCHEDULING SCQMA EVENTS. Prior to the first scheduled event of each year, SCQMA shall provide the City's representative at PMP a schedule of events for that calendar year. SCQMA shall notify the City's representative at PMP at least 7 days prior to the beginning of any additional Events that are to occur throughout the calendar year. The City shall have absolute discretion in accepting or refusing scheduling of events, but shall not unreasonably deny the scheduling of events without just cause. SCQMA shall meet with the City annually for the purpose of updating the City on SCQMA operations. 6. ADJACENT PREMISES. The City may enter into agreements with other parties ( "Other Renters ") to rent nearby and adjacent premises at the PMP to Other Renters for private and public events, including but not limited to the motocross track, the Oval Track, Drag Strip, and the Open Lapping Track. These areas are not part of the Quarter Midget Premises and SCQMA has no right to enter, use or occupy these areas without the consent of the Other Renters who hold leasehold or rental agreements on these areas. Use, occupancy, and events at these nearby and adjacent facilities may occur at any time during the term of this Agreement. The occupancy, use, and events at these nearby and adjacent premises by the Other Renters and their employees, contractors, customers and guests shall not be considered a trespass or a breach of any tern or covenant under this Agreement. 7. USE OF SHARED PREMISES. SCQMA and its employees, contractors, customers and guests may access and use the Shared Premises in common with the Other Renters and their employees, contractors, customers and guests for purposes reasonably related to the uses of the Quarter Midget Premises permitted under this Agreement. The use of the Shared Premises by the Other Renters and their employees, contractors, customers and guests, shall not be considered a trespass or a breach of any right or covenant under this Agreement. SCQMA shall comply with any reasonable rules and regulations that the City may promulgate to coordinate and facilitate cooperative use of the Shared Premises. S. CITY'S RIGHT TO ACCESS PREMISES. The City and its employees, contractors, vendors, licensees, and others may access the Quarter Midget Premises and Shared Premises at any time, and such access and use shall not be considered a trespass or a breach of any right or covenant under this Agreement. As a courtesy, City shall attempt to notify SCQMA at least 24 hours in advance before accessing the Quarter Midget Premises unescorted. In the event of an 2 emergency, City may attempt to notify SCQMA but reserves the right to enter premises without notification. 9. TERM AND OPTIONS TO RENEW. The term of this Agreement is for the period March 22, 2010 through December 31, 2011, unless earlier terminated as herein provided. Provided that SCQMA is not in default of this Agreement, SCQMA shall have the right to renew this Agreement, upon the same terms and conditions as this Agreement, for two additional terms of one year each, each such additional term consecutive with and immediately following the preceding term of this Agreement, by giving notice to City at least 90 days, but no more than 120 days, before the end of the preceding term of this Agreement, stating its intention to renew for an additional one -year term. Failure to give timely notice shall constitute a waiver of the right to renew. 10. RENT. SCQMA shall pay the City a rental fee of Zero Dollars ($0.00) per year for each year during the term of this Agreement. 11 IMPROVEMENTS AND ALTERATIONS TO THE PREMISES. SCQMA shall not make any changes or alterations to the Quarter Midget Premises or Shared Premises without first obtaining the written consent of the City. 12. ADDITIONAL SCQMA OBLIGATIONS. SCQMA shall, in addition to other duties and obligations provided in this Agreement, perform the following obligations: (a) Operate the Quarter Midget Premises and all Events, and activities thereon, at SCQMA's sole expense. (b) Provide all employees, officials and other labor necessary to conduct any Events, preparation for events, repairs, maintenance or other activities at the Quarter Midget Premises, except as otherwise provided in this Agreement. (c) Provide reasonable security for all SCQMA Events. (d) Notify the City immediately of any accidents, injuries, crimes, or other issues of importance that occur or exist or that they believe may occur or exist at some time in the future at the Quarter Midget Premises or Shared Premises. (e) Use all SCQMA fees and local annual dues exclusively for the operation of the club and maintenance of the Quarter Midget Premises. (f) Provide and maintain on -site Material Safety Data Sheets for all chemicals and products stored or used on site. (g) Notify the Pueblo Fire Department in the event of any fire or spill of any fuel, oil, or chemicals anywhere at the Quarter Midget Premises, Shared Premises, or anywhere at PMP. (h) Comply with the non - discrimination and equal employment requirements under §1 -8- 3, Pueblo Municipal Code. (i) Provide track clean -up materials to clean up oil, fuel, water, an anti - freeze leaks and spills. 0) Provide track prep chemicals and applications. (k) Keep the Quarter Midget Premises and all vehicles, equipment, supplies, buildings, and fixtures thereon in a clean, safe, orderly, and well maintained condition at all times during the term of this Agreement. 3 (I) Remove, clean up and remediate all contamination caused by or resulting from the discharge or spill of fuel and other petroleum products. (m) Repair any and all damages to the Quarter Midget Premises and Shared Premises (including without limitation any resources, facilities, or property of City) caused by or attributable to the activities of SCQMA or its officers, employees, agents, independent contractors, customers, or guests. (n) Arrange for and pay, at its sole expense, all utilities for the Quarter Midget Premises. 13. SCQMA CHARGES TO ITS CUSTOMERS. SCQMA may charge reasonable and non - discriminatory fees for participation and use of the Quarter Midget Premises by their customers and guests at SCQMA Events. SCQMA 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. On or before January 31 of the following year, SCQMA shall file with the City a comprehensive financial statement showing revenues and expenditures for the year as it relates to this Agreement. 14. RELEASE AND WAIVER OF LIABILITY. SCQMA shall obtain any releases or waivers of liability from persons entering the Premises that SCQMA'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. SCQMA shall retain these releases or waivers of liability for as long as their insurance carrier may require. SCQMA 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 SCQMA. 15. NON - TRANSFERABLE. SCQMA shall not sublease, transfer, or assign to any other parry 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 SCQMA'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, SCQMA shall not be released from any responsibility hereunder and shall remain liable and responsible to City for such sublease, transferee, or assignee and its activities in accordance with the terms and conditions of this Agreement. 16. PHOTOGRAPHY, VIDEO, TELEVISION, SOUND RECORDINGS, AND FILM OF EVENTS. Renter may photograph, film, or video tape the Event or any part thereof for private, free, non - commercial, home exhibition, 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 Renter first obtains a separate written agreement with PMP authorizing such activities. Independent photographers that are not associated with or in any way contracted with Renter are permitted. 17. USE OF PREMISES SUBJECT TO EASEMENT. SCQMA understands and agrees that this Agreement and SCQMA's use of the Quarter Midget 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"). Ell SCQMA acknowledges receipt of a copy of the Easement. City makes no representation or warranty that SCQMA's intended use of the Quarter Midget Premises or Shared Premises or the provisions of this Agreement are approved uses or allowed under the Easement. 18. CERTIFICATE OF INSURANCE. Upon execution of this Agreement but in no event less than seven (7) days prior to the first SCQMA Event of each year, SCQMA 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 One Million Dollars ($1,000,000.00) per occurrence, with a Five Million ($5,000,000.00) 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. SCQMA 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 SCQMA to comply with the provisions of this Section shall constitute a material breach of this Agreement by SCQMA. Coverage and limits enumerated in this insurance provision represent only the minimum insurance required by the City, and SCQMA should rely on its expertise to obtain any additional insurance coverage needed for the City and SCQMA in its performance under this Agreement. 19. SCQMA TO HAVE NO EMPLOYEES OF ANY KIND. (a) SCQMA represents and warrants that it has no employees of any kind, direct or indirect, formal or statutory, full -time, part-time, or piece -work, contract, or otherwise at the time this Agreement is signed and shall not hire, pay, or employ any such person in any form or manner to perform or provide any product, service, or work of any kind at any time during the term of this Agreement (b) SCQMA shall not pay or compensate any person or entity whatsoever for any product, work, or service performed or delivered at PMP during the term of this Agreement, in any form whatsoever, including but not limited to compensation in the form of pay, products, services, discounts, trades, food, lodging, tickets, access, or racing, except as provided in this Section. (c) In the event that SCQMA determines that it is necessary for SCQMA to arrange for any person or entity to perform any work or service of any kind at PMP or deliver any product of any kind at PMP, whether such person or entity is denominated an employee, an independent contractor, a day laborer, a delivery person, or any other label, and regardless how and by whom such person or entity is compensated, SCQMA shall, before permitting any such person or entity to perform such work or service or deliver such product: (1) notify the City's representative at PMP in writing that SCQMA wishes to have such person or entity perform such work or service or deliver such product; (2) provide the City's representative at PMP with a certificate of insurance showing that the person is covered by a worker's compensation policy; and (3) obtain written consent from the City's representative at PMP for such person to perform such work or service or provide such product. (d) Notwithstanding the foregoing, persons who are members of SCQMA may perform purely unpaid volunteer work as long as they do not receive compensation of any kind in any E form whatsoever, including but not limited to compensation in the form of pay, products, services, discounts, trades, food, lodging, tickets, access, or racing. (e) Failure to comply with this Section shall constitute a material breach and default of this Agreement. 20. INDEMNIFICATION. SCQMA 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 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 Quarter Midget Premises and Shared Premises by SCQMA, or any default or breach of any term of this Agreement by SCQMA, 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 SCQMA's indemnification obligation in this Section. This Section shall survive termination or expiration of this Agreement. 21. CERTAIN PROVISIONS SURVIVE EXPIRATION OF TERM AND TERMINATION. The provisions of this Agreement pertaining to insurance, indemnification, payments to the City, and liability shall survive the expiration of the tern of this Agreement and termination of this Agreement and continue in effect for a period of five years following the termination of this Agreement and for such further time as it may take to completely and finally negotiate, settle, or litigate any claim or suit concerning the same. 22. 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 Quarter Midget 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 Quarter Midget Premises or Shared Premises or any activity permitted hereunder. 23. NO REPRESENTATION OR WARRANTY OF CONDITION OR FITNESS. The Quarter Midget Premises and Shared Premises 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 Quarter Midget Premises and Shared Premises for SCQMA's Events or for any particular use or purpose. Accordingly, SCQMA is hereby advised that SCQMA shall be solely responsible for personally inspecting the Quarter Midget Premises and Shared Premises before execution of this Agreement and commencement of any Event. SCQMA's commencement of any Event shall constitute an express acknowledgement by SCQMA that the Quarter Midget Premises and Shared Premises are safe and adequate for SCQMA's permitted use. SCQMA shall be responsible for all equipment and facilities located at the Premises, and for adequate safeguards for the protection of SCQMA, its employees, contractors, agents, representatives, Other Renters, persons engaged in an SCQMA Event and members of the public admitted to the SCQMA Event or other events at 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 Quarter Midget 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. SCQMA's sole remedy if the Quarter Midget 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. 24. 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. 25. INTELLECTUAL PROPERTY. SCQMA 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 SCQMA and the expressed prior written consent of City, as the case may be. Notwithstanding the foregoing, SCQMA may use the name "Pueblo Motorsports Park" in accurate and truthful advertising solely as a means for identifying the location of an Event. 26. JURISDICTION AND 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. 27. MINORS. SCQMA 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 SCQMA'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. SCQMA shall retain these releases or waivers of liability for as long as their insurance carrier may require. SCQMA 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 SCQMA. These documents must be signed in the presence of SCQMA personnel and are required before said Minor enters into PMP. SCQMA 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 SCQMA. 28. CITY'S RIGHT TO REFUSE ACCESS. City may, at City's sole discretion, deny access to, or remove from, the Quarter Midget 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. 7 29. THIRD PARTIES. Notwithstanding anything in this Agreement to the contrary, SCQMA 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. SCQMA agrees that the Third Parties are independent contractors made available by City solely for the benefit of and as an accommodation to SCQMA and no contractual, tort or other liability results from or arises out of City making or failing to make the Third Parties available to SCQMA. 30. TERMINATION AND DEFAULT. If either parry 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 SCQMA commits a material breach as defined in this Agreement, City may terminate this Agreement upon five (5) days' prior written notice to SCQMA specifying the material breach and the date of termination. Except for accrued rights and liabilities and those covenants and provisions which survive termination hereunder, upon such termination each party shall be released from all future duties and obligations hereunder. These remedies shall be in addition to any other remedies provided in this Agreement. 31. 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. 32. 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. 33. 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. 34. NOTICES. Any notice required or permitted by this Agreement shall be in writing 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 0 One City Hall Place Pueblo, CO 81003 With an additional copy to: City Attorney City of Pueblo 503 N. Main St. Suite 203 Pueblo, CO 81003 If to SCQMA: Southern Colorado Quarter Midget Association P.O. Box 3358 Pueblo, CO 81005 Such notice shall be deemed to have been given when deposited in the regular United States mail. 35. SECTION 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. 36. INTEGRATION, SEVERABILITY, AMENDMENT, AND COUNTERPARTS. This Agreement represents the entire agreement between the Parties and supersedes all prior 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. 37. 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, § 24 -10 -101 et seq., C.R.S. 38. 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. 39. 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 terms. 91 40. 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 SCQMA'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. DATED this 22nd day of March ATTEST: I6 HI) PUEBLO, A MUNICIPAL CORPORATION President of City Council Lawrence W. Atencio Printed Name: President of City Council Title: ATTEST: City Cl k APPROVED AS TO FORM: Thomas J. Flot aZ el City Attorney 10 AMENDMENT NO. 2 TO RENTAL AGREEMENT THIS AMENDMENT NO. 2 TO RENTAL AGREEMENT is made and entered into this 3rd day of April, 2012, between the City of Pueblo, a Municipal Corporation (the "City ") and the Southern Colorado Quarter Midget Association, a Colorado Non - profit Association ( "SCQMA "). WHEREAS, City and SCQMA entered into a Rental Agreement dated March 22, 2010 (the "Agreement ") and an Amendment No. 1 to Rental Agreement dated December 30, 2011 extending the term of the Agreement; and WHEREAS, City and SCQMA desire to further extend the term of the Agreement, in anticipation of the City and SCQMA executing a new rental agreement within this extended period. WHEREAS, this Amendment No. 2 constitutes a "minor amendment" to an agreement within the meaning of Section 1- 5- 2(2)(f) of the Pueblo Municipal Code, as amended, under which the City Manager has authority to make minor amendments to contracts without obtaining the approval of City Council. NOW, THEREFORE, in consideration of the foregoing and the mutual terms and conditions set forth herein, the parties agree as follows: 1. Paragraph 9 of the Agreement is amended to read as follows: "The term of this Agreement is for the period March 22, 2010 through December 30, 2012, unless earlier terminated as herein provided." 2. Except as expressly modified by this Amendment No. 2, the Agreement shall remain in full force and effect. Except as modified by this Amendment No. 2, any obligations to be performed under the Agreement by either party are not waived nor excused in any manner, but shall be performed in accordance with the terms and conditions of the Agreement as it existed prior to this Amendment No. 2. IN WITNESS WHEREOF, City and SCQMA have executed this Amendment No. 2 to Rental Agreement as of the date first written above. ATTEST: CITY OF PUEBLO, a Municipal Corporation A-- By Cit Jerk Ci y anager (/9c /r''J) APPROVED AS TO FORM: SCQMA: By ,;?,,A4 9rt y Attorn Name: Pau. L SP/ C o LP Title: P12 ES 1 0 En-7-