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HomeMy WebLinkAbout11848RESOLUTION NO. 11848 A RESOLUTION APPROVING AN OPEN LAPPING RENTAL AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, ACTING BY AND THROUGH ITS HONOR FARM PROPERTIES ENTERPRISE, AND FAASST PERFORMANCE DRIVING SCHOOL, INC. 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 Open Lapping Rental Agreement dated April 12, 2010 between City of Pueblo acting by and through its Honor Farm Properties Enterprise and FAASST Performance Driving School, Inc. 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: April 12, 2010 BY: Vera Ortegon COUNCILPERSON APPROVED: FtE51DENT CF CITY CC) UNCIL ATTESTED BY: GIB' Y CLERK Background Paper for Proposed RESOLUTION DATE: April 12, 2010 AGENDA ITEM # M -5 DEPARTMENT: OFFICE OF THE CITY MANAGER JERRY M. PACHECO, CITY MANAGER JENNY M. EICKELMAN, ASSISTANT CITY MANAGER TITLE A RESOLUTION APPROVING AN OPEN LAPPING RENTAL AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, ACTING BY AND THROUGH ITS HONOR FARM PROPERTIES ENTERPRISE, AND FAASST PERFORMANCE DRIVING SCHOOL, INC. RELATING TO PUEBLO MOTORSPORTS PARK AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME ISSUE Should the City Council approve an Open Lapping Rental Agreement with FAASST Performance Driving School, Inc. for the purpose of holding open lapping racing events during the calendar year 2010 at Pueblo Motorsports Park located within the Honor Farm Properties? Approval of the Resolution. BACKGROUND FAASST Performance Driving School, Inc. (FPDS) was selected through the Request for Proposals (RFP) process to conduct open lapping racing events at Pueblo Motorsports Park. FPDS desires to conduct a significant number of open lapping racing events at Pueblo Motorsports Park during the calendar year 2010. City Administration and FPDS have negotiated a daily rental fee for the use of the Open Lapping Premises and Shared Premises for this purpose as contained in the Agreement. This Resolution will approve a rental agreement between the City and FPDS. FINANCIAL IMPACT Based on an estimated 10 track rentals, FPDS has the potential to generate approximately $11,000 in revenue for the Honor Farm Enterprise in 2010. RENTAL AGREEMENT BETWEEN THE CITY OF PUEBLO AND FAASST PERFORMANCE DRIVING SCHOOL, INC. FOR THE OPEN LAPPING PREMISES AT PUEBLO MOTORSPORTS PARK This Agreement ( "Agreement') is entered into this 12th day of April 2010, by and between the City of Pueblo, a Municipal Corporation, acting by and through its Honor Farm Properties Enterprise ( "City "), and FAASST Performance Driving School, Inc. ( "FPDS "). RECITALS A. FPDS represents that it is experienced in operating a performance driving school. 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. FPDS wishes to rent certain specific facilities at PMP from the City to conduct open lapping and performance driving school events in accordance with the terms and conditions set forth in this Agreement. In consideration of the foregoing recitals, and the terms, conditions set forth herein, the Parties agree as follows: TERMS AND CONDITIONS 1. OPEN LAPPING PREMISES. The Open Lapping Premises consist of the 2.2 mile 10- turn road course, including Drag Strip and Hot Pit. 2. SHARED PREMISES. The Shared Premises consist of the following facilities at PMP: Parking Lots, Cafd, Cafe Bathrooms, VIP Room, Quarter Midget Bathrooms and Showers, Front Gate Ticket Building, Camping Area, and all roads providing access to these places and to the Open Lapping Premises. 3. USE OF OPEN LAPPING PREMISES. (a) FPDS may use the Open Lapping Premises for open lapping sessions, safety orientation, and driving and riding instruction for high performance drivers and amateur racers for the purpose of developing professional driving and racing skills ( "FPDS Events "). FPDS shall not use the Open Lapping Premises for any other purposes without first obtaining the written consent of the City. Specifically, FPDS shall not use the Open Lapping Premises for motocross racing, quarter midget racing, drag racing, or bicycle motocross. Violation of this provision is a material breach of this Agreement. (b) FPDS and its agents, employees, contractors, customers, and guests shall conduct all FPDS Events and activities at the Open Lapping Premises in compliance with this Agreement, approved scheduling as provided in this Agreement, and all state, city and federal laws, including but not limited to City ordinances regulating lights, noise, dust, beer, wine, and liquor. Violation of this provision is a material breach of this Agreement. 4. ACCESS AND USE OF PREMISES ONLY DURING FPDS EVENTS. FPDS and its employees, contractors, customers, and guests shall have the right to access and use the Open Lapping Premises and Shared Premises only on Event days scheduled for FPDS under this Agreement ( "FPDS Events "). For purposes hereof "day" means: Fridays 7:00 a.m, to 4:00 p,m., Saturdays 7:00 a.m. to 5:00 p.m., and Sundays 7:00 a.m. to 5:00 p.m. If additional hours are needed before or after an Event to prepare for an Event or to repair or clean up after an Event, FPDS shall obtain permission from the track supervisor or designee. FPDS and its employees, contractors, customers, and guests do not have a right to enter, access, or use the Premises at any other times. 5. SCHEDULING OF FPDS EVENTS. (a) FPDS shall meet with the City's representative at PMS at least monthly to schedule FPDS Events. FPDS shall schedule and reserve days for its Events with the City's representative at PMP at least 7 days in advance of the FPDS Event. Space on the calendar for the Open Lapping Premises, which may be rented to other Renters as provided in this Agreement, as well as space on the Drag Racing calendar, which conflicts with the Open Lapping Premises, is scheduled on a first - come -first -served basis, and after days on the Open Lapping Premises calendar or Drag Premises calendar are reserved to other Renters, those days are not available to FPDS. After FPDS has scheduled an Event, FPDS shall be liable for the rent for that Event, whether or not the Event is actually held, except for two FPDS Events, which may be cancelled as provided below. 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. (b) FPDS shall schedule and conduct a Friday Event on the Friday prior to any weekend event that the City declares a Special Event, including, but not limited to sanctioned SCCA, NASA, and MRA events, provided that the City gives FPDS at least 5 days written notice of the Special Weekend Event. If the City cancels the Special Weekend Event, City shall give FPDS at least two days written notice of the cancellation, and FPDS shall have the option to either continue with the scheduled Friday Event or cancel the Friday Event, without liability for rent if the Friday Event is cancelled. (c) FPDS may cancel up to two scheduled Events by giving the City at least 48 hours written notice in advance of the Event, in which case, each party shall be released from all obligations with respect to the Event, provided that the Event to be cancelled is not a required Friday Event. If FPDS does not cancel an Event with at least 48 hours notice, or if FPDS cancels a Friday Event, FPDS shall pay all rent for the scheduled Event, whether or not the Event is actually held. FPDS shall be permitted only two such cancellations during the term of this Agreement. In the Event of any further cancellations, with or without advance notice, FPDS shall be liable for the rent for the number of days that the Event was scheduled for, whether or not the Event is actually held. (d) Notwithstanding any other language in this Agreement, if FPDS 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 City, FPDS shall not be obligated to pay a rental fee for the Event. FA 6. CITY'S RIGHT TO RENT OPEN LAPPING PREMISES TO OTHERS WHEN FPDS EVENT NOT SCHEDULED. (a) City may rent the Open Lapping Premises to other Renters when the Open Lapping Premises are not scheduled for an FPDS Event and such access and use of the Open Lapping Premises shall not be considered a trespass or a breach of any right or covenant under this Agreement. (b) Before renting the Open Lapping Premises to other Renters for any proposed open lapping event, and before the City conducts its own proposed open lapping event on the Open Lapping Premises, the City shall first notify FPDS in writing of the proposed open lapping event and give FDPS 48 hours to respond, stating that FPDS wishes to conduct the proposed open lapping event. If FPDS fails, within 48 hours of the time the City's notice to FPDS is sent, to notify the City in writing, stating that FPDS wishes to conduct the proposed open lapping event on the proposed date, the City may rent the Open Lapping Premises to other Renters for the proposed open lapping event, or the City may conduct the proposed open lapping event itself. If FPDS states in its notice to the City that it wishes to conduct the proposed open lapping event, the proposed open lapping event shall be reserved for FPDS and FPDS shall be liable for the rent for the number of days of the proposed Event, whether or not such FPDS Event is actually held. (c) Notwithstanding any other language in this Section, the City may rent the Open Lapping Premises to other Renters, when the Open Lapping Premises are not scheduled for an FPDS Event, for purposes other than open lapping events, without providing any notice to FPDS, 7. 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 and the Oval Track. City shall not schedule Quarter Midget Events on FPDS Event days. 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. FPDS shall not enter these adjacent premises without first obtaining the consent of the Renters of those premises. 8. USE OF SHARED PREMISES. FPDS 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 Open Lapping Premises permitted under this Agreement, but shall not possess, operate or control the Shared Premises. 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. FPDS shall comply with any reasonable rules and regulations that the City may promulgate to coordinate and facilitate cooperative use of the Shared Premises. Upon request from FPDS, the City may, in its sole and absolute discretion, grant to FPDS the right to operate the Cafd. 9. CITY'S RIGHT TO ACCESS PREMISES. The City and its employees, contractors, vendors, licensees, and others may access the Open Lapping 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. 3 10. TERM. The term of this Agreement is for the period April 12, 2010 through December 31, 2010, unless earlier terminated as herein provided. 11. RENT. (a) FPDS shall pay the City a rental fee of One Thousand One Hundred Dollars ($1,100) per day for each day or portion of a day that any FPDS Event is scheduled and for each day or portion of a day that FPDS is in actual possession of the Open Lapping Premises. (b) If FPDS schedules an Event and fails to notify in writing the PMP scheduler at least 48 hours in advance that FPDS has cancelled the Event, FPDS shall be liable for the rent for the number of days on which the FPDS Event was scheduled, whether or not the Event actually occurs. (c) If an FPDS Event extends past the number of days for which it was scheduled, FPDS shall be liable for $2,200 for each day or portion of a day that the Event extends past the number of days the Event was scheduled for. The Parties agree that it would be difficult to estimate the actual damages the City would suffer from an FPDS Event staying in possession of the Open Lapping Premises past the time scheduled, but the damages would include at least the daily rental value of the Open Lapping Premises and the City's liability to another Renter who was promised the Open Lapping Premises, but was not able to enter the Open Lapping Premises when scheduled. The Parties agree that the liquidated damages figure stated in this subsection is a fair and reasonable estimate of such damages and is reasonably related and reasonably proportionate to the actual damages that the City would suffer from such violations of this Agreement by FPDS. The Parties intend to liquidate these damages to avoid the time and cost that would be spent in calculating the actual damages. This remedy shall be in addition to any other remedy that the City may have under this Agreement. (d) Rent shall be due five (5) days after each FPDS Event is completed. If the rent is not paid in full within 30 days after the Event is completed, City shall have the right to cancel all scheduled FPDS Events by giving notice of such cancellation to FPDS. In such event, FPDS shall remain liable for all unpaid rent. FPDS shall also be liable for the rent of all FPDS Events scheduled to occur within the thirty-day period following the City's Notice of Cancellation. 12. IMPROVEMENTS AND ALTERATIONS TO THE PREMISES. FPDS shall not make any changes or alterations to the Open Lapping Premises or Shared Premises without first obtaining the written consent of the City. 13. ADDITIONAL FPDS OBLIGATIONS. FPDS shall, in addition to other duties and obligations provided in this Agreement, perform the following obligations: (a) Operate the Open Lapping Premises and all Events, sales, and activities thereon, at FPDS'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 Open Lapping Premises, except as otherwise provided in this Agreement. (c) Provide reasonable security for all FPDS Events. (d) Notify the City immediately of any accidents, injuries, or crimes that occur at the Open Lapping Premises or Shared Premises. 2 (e) Provide and maintain on -site Material Safety Data Sheets for all chemicals and products stored or used on site. (f) Notify the Pueblo Fire Department in the event of any fire or spill of any fuel, oil, or chemicals anywhere at the Open Lapping Premises, Shared Premises, or anywhere at PMP. (g) Comply with the non- discrimination and equal employment requirements under §1 -8- 3, Pueblo Municipal Code. (h) Provide track clean-up materials to clean up oil, fuel, water, an anti - freeze leaks and spills. (i) Keep the Open Lapping 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. (k) Remove, clean up and remediate all contamination caused by or resulting from the discharge or spill of fuel and other petroleum products. (1) Repair any and all damages to the Open Lapping Premises and Shared Premises (including without limitation any resources, facilities, or property of City) caused by or attributable to the activities of FPDS or its officers, employees, agents, independent contractors, customers, or guests. Normal wear and tear shall not be considered damage. 14. ADDITIONAL CITY OBLIGATIONS. The City shall, in addition to other duties and obligations provided in this Agreement, perform the following obligations: (a) Sweep the Open Lapping Premises prior to each FPDS Event. (b) Repair the asphalt on the track in the Open Lapping Premises to the extent that PMP's budget permits the same, as determined in the City's sole and absolute discretion. In the event the track becomes unsafe or is found to have safety issues, repairs shall be a priority in the PMP budget. (c) Provide the Open Lapping Premises and Shared Premises to FPDS in a clean and orderly condition before each FPDS Event. 15. OTHER ACTIVITIES. Any activities other than open lapping and performance driving school events to be conducted in the Open Lapping 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. FPDS shall bear sole responsibility for full compliance with this Section. 16. FPDS CHARGES TO ITS CUSTOMERS. FPDS may charge reasonable and non- discriminatory fees for admission and use of the Open Lapping Premises by their customers and guests at FPDS Events. FPDS 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 open lapping season each year, FPDS shall file with the City a comprehensive financial report showing revenues and expenditures for that open lapping season as it relates to this Agreement. 5 17. RELEASE AND WAIVER OF LIABILITY. FPDS shall obtain any releases or waivers of liability from persons entering the Open Lapping Premises and Shared Premises that FPDS'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. FPDS shall retain these releases or waivers of liability for as long as their insurance carrier may require. FPDS 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 FPDS. 18. NON- TRANSFERABLE. FPDS 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 FPDS'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, FPDS 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. 19. PHOTOGRAPHY, VIDEO, TELEVISION, SOUND RECORDINGS, AND FILM OF EVENTS. FPDS 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 FPDS first obtains a separate written agreement with PMP authorizing such activities. 20. USE OF PREMISES SUBJECT TO EASEMENT. FPDS understands and agrees that this Agreement and FPDS's use of the Open Lapping 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 "). FPDS acknowledges receipt of a copy of the Easement. City makes no representation or warranty that FPDS's intended use of the Open Lapping Premises or Shared Premises or the provisions of this Agreement are approved uses or allowed under the Easement. 21. CERTIFICATE OF INSURANCE. Upon execution of this Agreement but in no event less than seven (7) days prior to the first FPDS Event of each year, FPDS 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 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, FPDS 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 C 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 FPDS may have no employees as defined under said Act or that FPDS 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 FPDS performing work at the Open Lapping Premises and Shared Premises irrespective of whether such employees may be shareholders, managers, partners, or owners of FPDS or exempt employees under the Act. FPDS may purchase, for non - statutory employees, a participant accident insurance policy which would include death, disability, dismemberment, and medical benefits. Any independent contractors of FPDS shall be covered under FPDS'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. FPDS 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 FPDS to comply with the provisions of this Section shall constitute a material breach of this Agreement by FPDS. Coverage and limits enumerated in this insurance provision represent only the minimum insurance required by the City, and FPDS should rely on its expertise to obtain any additional insurance coverage needed for the City and FPDS in its performance under this Agreement. 22. INDEMNIFICATION. FPDS 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 Open Lapping Premises and Shared Premises by FPDS, or any default or breach of any term of this Agreement by FPDS, 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 FPDS's indemnification obligation in this Section. This Section shall survive termination or expiration of this Agreement. 23. 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 term 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. 24. 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 Open Lapping 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 Open Lapping Premises or Shared Premises or any activity permitted hereunder. 7 25. NO REPRESENTATION OR WARRANTY OF CONDITION OR FITNESS. The Open Lapping 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 Open Lapping Premises and Shared Premises for FPDS's Events or for any particular use or purpose. Accordingly, FPDS is hereby advised that FPDS shall be solely responsible for personally inspecting the Open Lapping Premises and Shared Premises before execution of this Agreement and commencement of any Event. FPDS's commencement of any Event shall constitute an express acknowledgement by FPDS that the Open Lapping Premises and Shared Premises are safe and adequate for FPDS's permitted use. FPDS shall be responsible for all facilities located at the Premises, and for adequate safeguards for the protection of FPDS, its employees, contractors, agents, representatives, Other Renters, persons engaged in an FPDS Event and members of the public admitted to the FPDS 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 Open Lapping 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. FPDS's sole remedy if the Open Lapping 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. 26. 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. 27. INTELLECTUAL PROPERTY. FPDS 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 FPDS and the expressed prior written consent of City, as the case may be. Notwithstanding the foregoing, FPDS may use the name "Pueblo Motorsports Park" in accurate and truthful advertising solely as a means for identifying the location of an Event. City shall not charge a fee for linking FPDS's web site to the City's web site. 28. 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. 29. MINORS. FPDS 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 FPDS'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. FPDS shall retain these releases or waivers of liability for as long as their insurance carrier may require. FPDS shall bear sole responsibility for full ,;I 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 FPDS. These documents must be signed in the presence of FPDS personnel and are required before said Minor enters into PMP. FPDS 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 FPDS. 30. CITY'S RIGHT TO REFUSE ACCESS. City may, at City's sole discretion, deny access to, or remove from, the Open Lapping 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. 31. THIRD PARTIES. Notwithstanding anything in this Agreement to the contrary, FPDS 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. FPDS agrees that the Third Parties are independent contractors made available by City solely for the benefit of and as an accommodation to FPDS and no contractual, tort or other liability results from or arises out of City making or failing to make the Third Parties available to FPDS. 32. 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 FPDS commits a material breach as defined in this Agreement, City may terminate this Agreement upon five (5) days' prior written notice to FPDS 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. 33. 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. 34. 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. 35. 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, 0 that nothing in this paragraph shall be construed to permit the assignment of this Agreement except as otherwise expressly authorized herein. 36. 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 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 FPDS: Judy FAASS FAASST Performance Driving School, Inc. 4164 Austin Bluffs Parkway #219 Colorado Springs, CO 80918 Such notice shall be deemed to have been given when deposited in the regular United States mail. 37. 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. 38. 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. 39. 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 10 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. 40. 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. 41. 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 parry and that this Agreement is a valid and legally binding obligation of such party enforceable against it in accordance with its terms. 42. 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 FPDS'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. 11 DATED this 12th day of April 2010. FAASST PERFORMANCE DRIVING PUEBLO, A MUNICIPAL CORPORATION SCHO , By: By: President of City Council Lawrence W. Atencio Printed Name: Printed Name: �CeS I C/ Pte - President of City Council Title Title _ ATTEST: By: � . - a cc� Cj' -6%4� Printed Name: U,i e 6'5c /L Title ATTEST: `- City (6rk APPROVED AS TO FORM: �)6�� Thomas J. Fl zak City Attorney TT T: 12