HomeMy WebLinkAbout12093RESOLUTION NO. 12093 A RESOLUTION AWARDING A CONCESSION AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION, AND T & A VONG, INC., DBA SHORT STOP DELUXE BURGERS, A COLORADO CORPORATION FOR OPERATION OF A FOOD CONCESSION AT PUEBLO MOTORSPORTS PARK AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE THE SAME WHEREAS, the department sent out an RFP in November 2010, which produced no responses; and WHEREAS, in order to serve the public interest, the City needs the services of T & A Vong Inc., DBA Short Stop Deluxe Burgers to operate and maintain the Concession area at Pueblo Motorsports Park, NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Concession Agreement dated February 28, 2011 by and between T & A Vong, Inc., DBA Short Stop Deluxe Burgers and the City of Pueblo, a true copy of which is attached hereto and approved as to form by the City Attorney, is hereby approved. SECTION 2. The President of City Council is authorized and directed to execute said Agreement and the City Clerk shall attest same. SECTION 2. This Resolution shall become effective immediately upon final passage and approval. INTRODUCED: February 28, 2011 BY: Judy Weaver COUNCILPERSON Background Paper for Proposed RESOLUTION M-2 # DATE: February 28, 2011 AGENDA ITEM DEPARTMENT: PARKS AND RECREATION, CREIGHTON WRIGHT, DIRECTOR TITLE A RESOLUTION AWARDING A CONCESSION AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION, AND T & A VONG, INC., DBA SHORT STOP DELUXE BURGERS, A COLORADO CORPORATION FOR OPERATION OF A FOOD CONCESSION AT PUEBLO MOTORSPORTS PARK AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE THE SAME ISSUE Should City Council award a contract for the operation of the concessions at Pueblo Motorsports Park to T & A Vong, Inc., DBA Short Stop Deluxe Burgers? RECOMMENDATION Approval of this Resolution. BACKGROUND Since the City took over the operation of the Pueblo Motorsports Park in October 2009, the facility has been without a contracted concessionaire. In 2010, due to complaints from various user groups that there were no concessions during events and at the request of the current PMP Track Manager, Jason Abney, Mr. Vong provided the concession services. Mr. Vong delivered an excellent product to the patrons of PMP during the 2010 race season. In December 2010, an RFP was advertised for the management and operation of the Pueblo Motorsports Park and the Pueblo Plaza Ice Arena Concessions. At the deadline of this RFP, no proposals were submitted. PMP was faced with not having a qualified concessionaire for another racing season. With the upcoming racing season beginning March 19, 2011, it is for the best interest of the Pueblo Motorsports Park, user groups, and spectators to have the concession area operating. T & A Vong, Inc., DBA Short Stop Deluxe Burgers has been in business for 17 years and has experience providing concession services throughout Southern Colorado including United States Air Force Academy, Pikes Peak International Hill Climb, and SCCA Road Racing just to name a few. FINANCIAL IMPACT Contractor will submit back to the Honor Farm Enterprise Fund 10% of gross commissions from concession sales at PMP. A CONCESSION AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION, AND T & A VONG, INC., DBA SHORT STOP DELUXE BURGERS FOR OPERATION OF A FOOD CONCESSION AT PUEBLO MOTORSPORTS PARK THIS AGREEMENT is entered this 28th day of February, 2011, by and between Pueblo, a Municipal Corporation ( "City ") and T & A Vong, DBA Short Stop Deluxe Burgers ( "Concession Manager "). RECITALS A. The City needs the services of a Concession Manager to manage, operate and maintain certain food concessions at Pueblo Motorsports Park. B Concession Manager has experience managing and operating concession areas. In consideration of the foregoing recitals, and the terms, conditions set forth herein, the Parties agree as follows TERMS AND CONDITIONS SECTION 1 DEFINITIONS. As used herein, the following words and phrases shall have the following meanings (a) "Concession Areas" means the concession areas shown on Exhibit A to this Agreement, any area the Facility Manager may temporarily or permanently designate in wasting for catering, and any areas that the Facility Manager may temporarily or permanently designate fcfr operation of any mobile food service unit that Concession Manager may operate, all at Pueblo Motorsports Park, located at 3733 N Pueblo Blvd Pueblo, Colorado (b) "Facility Manager" means the City employee having overall responsibility e f management of Pueblo Motorsports Park. SECTION 2. EXHIBITS TO AGREEMENT (a) The following documents are attached and incorporated as part of this agreement: Exhibit A. Pueblo Motorsports Park Concession Areas. Exhibit B Initial Inventory of City Owned Machinery, Fixtures, and Equipme t Located in the Concession Areas Specified in Exhibits A. Exhibit C PERA Questionnaire Exhibit D Concession Manager's Menus. 1 (b) In the event of any conflict between any exhibit and the terms and conditions of this Agreement, the terms and conditions shall control. SECTION 3. GRANT OF RIGHT TO OPERATE, CONDITIONAL EXCLUSIVITY; EXTENSION TO ADDITIONAL FACILITIES. (a) City grants to Concession Manager the nght to use, operate, and manage the Concession Areas, subject to the terms and conditions of this Agreement. (b) Concession Manager shall have the exclusive right to sell beverages, food ancfl foodstuffs at Pueblo Motorsports Park, provided however, that if Concession Manager cannot provide a type of food or beverage that Facility Manager requires, cannot provide a food or beverage in sufficient quantity or quality, cannot provide service of the same in the manner that Facilit' Manager requires, cannot provide the same at a reasonable pace, cannot provide the same on the days and times Facility Manager requires, or cannot provide the same quickly enough, all as determined by the Facility Manager in his sole and absolute discretion, then Facility Manager may permit other persons to sell the same or different food and beverages at Pueblo Motorsports Park at the same or different times, days and events as Concession Manager (but not utilizing the Concession Areas shown in Exhibits A ), and permitting other persons such right shall not constitute a breach of this Agreement or excuse Concession Manager from its obligations under thi! Agreement. (c) City reserves the nght to enter the Concession Areas at any time for any reason without notice and such entry shall not violate any grant or covenant under this Agreement. (d) Upon the written mutual agreement of Concession Manager and the Director of Park and Recreation for the City of Pueblo, upon terms substantially the same as contained herein, this Agreement may be extended to cover Concession Areas at City facilities other than Pueblq Motorsports Park, including but not limited to the Pueblo Plaza Ice Arena. SECTION 4. CONCESSION FEE. (a) Concession Manager shall pay to the City a Concession Fee in the amount of tern percent (10 %) of Concession Manager's gross revenues each month, or portion of a month, from all sales of food, snacks, and beverages at Pueblo Motorsports Park. (b) Concession Manager shall remit the Concession Fee along with Concession Manager's true and accurate itemized Sales Records for the preceding month, or portion of a month showing each item sold, the quantity of each item sold, the day and time sold, the location of eac sale, and the pace of each item sold. (c) Concession Manager shall remit the Concession Fee along with the Sales Records to City each month by no later than the 10th day of the following month. 2 (d) Failure to timely comply with this Section 4 shall constitute a matenal breach of this Agreement. SECTION 5. DEPOSIT Upon signing this Agreement, Concession Manager shall deposit wi the City the sum of One Thousand Dollars ($1,000) to ensure performance of Concession Manager s obligations under this Agreement. In the event that Concession Manager fails to pay any fee, charge, or other sum due under this Agreement or fails to perform any obligation at any time under this Agreement, the City may draw from this deposit to remedy Concession Manager's default. In the event that the City draws from this deposit to remedy Concession Manager's default, the City shall notify Concession Manager in writing and require Concession Manager to replenish the deposit to the original level. Failure to comply with this Section shall constitute a material breach of this Agreement. The City shall refund unused portions of the deposit to Concession manager within sixty (60) days after this Agreement expires or terminates. SECTION 6. CONCESSION MANAGER'S ADDITIONAL OBLIGATIONS. Concession Manager shall perform and comply with the following obligations, restrictions, and limitations. (a) Operate, staff, manage, keep clean and sanitary, maintain, and promote the Concession Areas and Concession Manager's food and beverages. Concession Manager sh l perform these duties with reasonable care according to the highest standards in the industry (b) Hire, supervise, train and schedule all employees and subcontractors needed and required for the efficient operation, maintenance, management and promotion of the Concession Manager's food and beverage operations. It is expressly understood and agreed that all employes hired by Concession Manager shall be solely employees of Concession Manager and no contract 1 obligations or relationship of employer - employee shall exist between the City and such employees. (c) Maintain the security of, maintain in good condition and repair, and return t the City upon termination of this Agreement, all City owned equipment, fixtures and machinery the Concession Areas or placed under Concession Manager's custody and control by City An mitil inventory of such machinery, fixtures, and equipment shall be prepared and shall be signed by the Facility Manager and Concession Manager and attached hereto as Exhibit A and B Facility Manager and Concession Manager shall annually update such inventory (d) Keep and maintain separate, accurate and complete accounts and records of all activities and transactions conducted by Concession Manager in each of the Concession Areas in accordance with generally accepted accounting pnnciples, which accounts and records shall be available for inspection, copy and audit by City dunng normal business hours. Concession Manager shall retain all such accounts and records for a minimum period of three (3) years after termination of this Agreement. (e) Comply strictly with all applicable federal, state and City laws, rules and regulations. 3 1 (f) Keep the Concession Areas open for business and provide catering throughout all parts of the Pueblo Motorsports Park on such days and at such times as Pueblo Motorsports Park is open to the public and on such additional days and times as the Facility Manager may require i his sole and absolute discretion, after reasonable consultation with Concession Manager (g) Furnish prompt, courteous and efficient food and beverage service and catering at the Concession Areas at regular events and at special events, according to the menus attached as Exhibit D All such products and services shall conform with the requirements of federal, state, and city laws and regulations. (h) Purchase, stock, carry, furnish, provide and replace as needed, at Concession Manager's sole cost and risk, sufficient and adequate food, foodstuffs, beverages, equipmen furnishings and furniture in the Concession Areas in a quality and quantity determined to be adequate by Facility Manager in his sole and absolute discretion after reasonable consultation with Concession Manager, mcludmg but not limited to foodstuffs and beverages for lunch, dinner, snacks, and catering, and tables, chairs, glasses, dishes and utensils for the Concession Areas. (i) Provide all food and beverage service and catering in a polite and inoffensive manner, ensuring polite conduct and demeanor on the part of Concession Manager's representatives, agents, employees, and subcontractors. (j) Meet with the Facility Manager in person at least monthly to review the menu, prices charged, days and times when food and beverage service must be provided at the Concessidn Areas, days, times and places when catering must be provided at Pueblo Motorsports Park, stocks of foodstuffs, beverages, equipment, furnishings and furniture in the Concession Areas, upcoming special events, decor, menus, brochures, and sales materials, quality of food and beverages provide , and Sales Records. (k) Pay at Concession Manager's sole cost, before same become delinquent, all sales, use and property taxes on Concession Manager's property and business conducted at Pueblo Motorsports Park. Concession Manager shall collect and remit to City all sales taxes on the sale of food, beverages and merchandise. (1) Operate and manage the Concession Areas as public facilities for the use d benefit of the public on a fair, equal and nondiscnmmatory basis without preferential treatment to any individual, group or entity Concession Manager shall comply fully with state and federal anti- discrimination laws, rules and regulations and specifically agrees that no person shall be denied 4r refused services or other full or equal use of the Concession Areas , nor demed employme t opportunities by Concession Manager as a result of race, creed, color, sex, age, national ongin, ancestry or disability unrelated to ability or job performance (m) Obtain at Concession Manager's cost and expense all licenses required for the operation of the Concession Areas. All such licenses shall remain with Pueblo Motor Sports Park and upon termination of this Agreement Concession Manager shall transfer or approve the transfer of such licenses to City or its designee For such purposes, Concession Manager hereby irrevocably I 4 I appoints City its agent and attorney in fact to execute all approvals and instruments required for such transfers. (n) Comply with the rules and regulations adopted by Pueblo Motorsports Park and the Facility Manager relating to the use of the Concession Areas, the park, and all roads, sidewalks and parking lots. (o) Meet and comply with the nondiscrimination and equal employmei1it requirements of section 1 -8 -4 of the Pueblo Municipal Code which are incorporated herein by reference. (p) Concession Manager shall not use or allow the Concession Areas to be used for any improper, unlawful, immoral or objectionable purpose and shall not cause, maintain q permit any disorderly conduct, nuisance or waste in, on or about the Concession Areas. Concession Manager shall not conduct any activity or sell anything at or on the Concession Areas or Faciliti s except as specifically authorized in this Agreement. (q) Concession Manager shall not make any improvements of a permanent nat e to the Concession Areas or install any fixture or sign in the Concession Areas or make any addition , changes, remodeling or alterations to the same without the pnor written approval of the Facilitly Manager and after obtaining all permits required therefor All such approved improvement , fixtures, signs, additions, changes, remodeling or alternations shall remain the property of the City (r) Surrender and deliver to the City at the expiration or termination of th s Agreement the Concession Areas and all City fixtures, machinery, supplies and equipment in good condition order and order, reasonable wear and tear excepted. SECTION 7 TERM AND TERMINATION (a) The initial term of this Agreement is one year commencing March 1, 2011 and ending December 31, 2011, unless earlier terminated as herein provided. This Agreement may be extend d for two additional terms of one year each upon mutual agreement of both parties in writing. (b) Provided that Concession Manager is not in default of this Agreement, Concession Manager shall have the right to renew this Agreement, upon the same terms and conditions, for tvo additional terms of one year each, each such additional tern 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 Concession Manager's intention to renew for an additional one -year term. Failure to give timely notice sh 1 constitute a waiver of the right to renew (c) If either party is in default hereunder, the non - defaulting party may give written note e describing the default to the defaulting party If the defaulting party does not correct such defauilt 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- 5 day period and thereafter diligently pursues corrective action, the non - defaulting party may upon additional five (5) days' notice given to the defaulting party terminate this Agreement. (d) Notwithstanding the foregoing, the City may terminate this Agreement without cau e on ninety days notice to Concession Manager (e) Notwithstanding the foregoing, the City may terminate this agreement upon five ( ) days notice to Concession manager for any material breach of this Agreement. (f) This Agreement does not constitute a lease or create any tenancy or possesso interest in Concession Manager Concession Manager's rights hereunder may be terminated in the manner provided in this Agreement without proceeding as required in the Forcible Entry and Detainer Act. SECTION 8. INSURANCE, INDEMNITY, AND RELEASE. (a) Concession Manager shall, within ten (10) days after this Agreement is executed by both parties, obtain the following insurance coverages and provide to the City the followi I g Certificates of Insurance showing that Concession Manager has obtained the following insuran ne coverages. Concession Manager shall maintain all such insurance coverages at all times dunng the term of this Agreement: (1) Workers' Compensation Insurance complying with statutory requirements in Colorado and in any other state or states where the work is performed. The Workers' Compensation Insurance policy shall contain an endorsement waiving subrogation again t the City (2) Commercial General Liability ( "CGL ") Insurance issued to and covenng t e liability of Concession Manager, and naming the City of Pueblo and its officers and employees as additional insureds with respect to all work performed by Concession Manager and its subcontractors under this Agreement, to be written on a Commercial General Liability policy form CG 00 01, with coverage limits of not less than Six Hundred Thousand . d No /l00 Dollars ($600,000 00) per person and occurrence for personal injury, including b t not limited to death and bodily injury, and Six Hundred Thousand and No /100 Doll. s ($600,000 00) per occurrence for property damage This CGL policy shall also provide coverage for contractual liability assumed by Concession Manager under the provisions u f this Agreement. (3) Comprehensive Automobile Liability Insurance effective during the penod of th- Agreement, covering the liability of Concession Manager, and naming the City of Puebl i and its officers and employees as additional insureds with limits of liability for injury to on - person in any single occurrence of not less that $500,000 and for any injury to two or mor- persons m any single occurrence of not less than $500,000 This insurance shall includ uninsured/undennsured motorist coverage and shall protect the Concession Manager from an and all claims arising from the use both on and off the Basic Services site of motor vehicle , 6 I including any automobiles, trucks, tractors, backhoes and similar equipment whether owne , leased, hired or used by Concession Manager (b) Every insurance policy and certificate of insurance specified in subsection (a) of th s Section shall contain a provision requiring that Insuror shall notify the City in writing, in the mann r provided in this Agreement, in the event that any such policy or coverage is cancelled, modifie , revoked, terminated, rescinded, or lapses. (c) Concession Manager forever releases and waives any and all claims, known d unknown, presently existing or arising in the future, and any suit or action in law or equity againt City and its officers, employees, agents and independent contractors ( "Released Parties ") in y court or tribunal, based on tort, statute, violation of civil rights, or any other legal theory, for y physical injury, psychological injury, death, or property damage or loss that Concession Manag r may suffer, related to or caused by the Released Parties which are in any way related to any of t e activities under this Agreement, or any vehicle, object, thing, or activity in any building or facile owned, leased, operated or controlled by the Released Parties. (d) Concession Manager shall not file, pursue or prosecute any suit, action or proceedin t, in law or in equity, in any court or tribunal, against the Released Parties, based on tort, statut•, violation of civil rights, or any other legal theory, for any physical injury, psychological inj , death, or property damage or loss that Concession Manager may suffer related to or caused by t e Released Parties which are in any way related to any of the activities under this Agreement, or . y vehicle, object, thing, or activity in any building or facility owned, leased, operated or controlled .y the Released Parties. (e) Concession Manager shall indemnify, defend and hold harmless the Released Parti: s against any liability for any damages, attorneys fees, and restitution that may be imposed by . y court or tribunal in any suit, action or proceeding in law or equity filed by any person or entity bas..d on tort, statute, violation of civil rights, or any other legal theory, for any physical mjur, , psychological injury, death, or property damage or loss that Concession Manager, or his employe: s or subcontractors may suffer, related to or caused by the Released Parties which are in any w. y related to any of the activities under this Agreement, or any vehicle, object, thing, or activity in . y building or facility owned, leased, operated or controlled by the Released Parties. SECTION 9 SUBCONTRACTS. (a) City acknowledges that Concession Manager is the prime contractor and the on y party with whom City has a contract under this Agreement. To the extent Concession Manager performs any services under this Agreement through subcontractors, Concession Manager sh, 1 contractually bind each of its subcontractors by subcontract to all of the terms of this Agreeme t which are for the benefit of City, and City shall be a third party beneficiary of those subcontracts. (b) Concession Manager shall indemnify and defend City from all claims and demane s for payment for services provided by subcontractors of Concession Manager 7 1 (c) Concession Manager acknowledges that, due to the nature of the services to e provided under this Agreement, the City has a substantial interest in the personnel . d subcontractors to whom Concession Manager assigns any responsibility for services performed under this Agreement. Consequently, Concession Manager represents that it has selected . d intends to employ or assign the key personnel and subcontractors identified in its proposal submitt:d to City prior to execution of this Agreement to induce City to enter this Agreement. Concessi s n Manager shall not change such subcontractors or key personnel except after giving notice of a proposed change to City and receiving City's consent thereto Concession Manager shall not assi; or reassign any work required under this Agreement to any person to whom City has reasonab e objection. SECTION 10. STATE - IMPOSED MANDATES PROHIBITING ILLEGAL ALIENS FROM PERFORMING WORK (a) At or prior to the time this Agreement is executed, Concession Manager shall sub 't to the City its certification that it does not knowingly employ or contract with an illegal alien w o will perform work under this Agreement and that the Concession Manager will participate in eithr r the "E- Verify Program" created in Public Law 208, 104` Congress, as amended and expanded n Public Law 156, 108` Congress, as amended, that is administered by the United States Departme t of Homeland Security or the "Department Program" estabhshed pursuant to §8 -17 5- 102(5)( ) C.R.S that is administered by the Colorado Department of Labor and Employment in order o confirm the employment eligibility of all employees who are newly hired for employment to perfo work under this Agreement. (b) Concession Manager shall not: (1) Knowingly employ or contract with an illegal alien to perform work under th s Agreement; (2) Enter into an Agreement with a subcontractor that fails to certify o Concession Manager that the subcontractor shall not knowingly employ or Agreement wi h an illegal alien to perform work under this Agreement. (c) The following state - imposed requirements apply to this Agreement: (1) The Concession Manager shall confirm the employment eligibility of .11 employees who are newly hired for employment to perform work under this Agreeme it through participation in either the E- Verify Program or Department Program. (2) The Concession Manager is prohibited from using either the E -Veri y Program or Department Program procedures to undertake pre - employment screening of J • b applicants while this Agreement is being performed. (3) If the Concession Manager obtains actual knowledge that a subcontrator performing work under this Agreement knowingly employs or contracts with an illegal alien, the Concession Manager shall. 8 A. Notify the subcontractor and the City's Purchasing Agent within thr e (3) days that the Concession Manager has actual knowledge that the subcontractor 's employing or contracting with an illegal alien, and B Terminate the subcontract with the subcontractor if within three ( ) days of receiving the notice required pursuant to subparagraph (c)(III)A. above t e subcontractor does not stop employing or contracting with the illegal alien, exce It that the Concession Manager shall not terminate the Agreement with the subcontractor if, dunng such three (3) days, the subcontractor provides information o establish that the subcontractor has not knowingly employed or contracted with illegal alien. (4) Concession Manager is required to comply with any reasonable request y the Colorado Department of Labor and Employment (hereinafter referred to as "CDLE ") made in the course of an investigation that CDLE is undertaking pursuant to its authony under §8- 17.5- 102(5), C.R.S (d) Violation of this Section by the Concession Manager shall constitute a breach 0 Agreement and grounds for termination. In the event of such termination, the Concession Manag r shall be liable for City's actual and consequential damages. (e) As used in this Section, the terms "subcontractor" and "subcontractor" shall mean . y subcontractor or subcontractor of Concession Manager rendering services within the scope of I's Agreement. SECTION 11 NOTICES. (a) Any notice required or permitted by this Agreement shall be in writing and shall „e deemed to have been sufficiently given for all purposes if sent by certified mail or registered ma 1, postage and fees prepaid, addressed to the party to whom such notice is to be given at the followi g address or at such other address as may be subsequently furnished in wntmg to the other party. If to City. City Manager City of Pueblo 200 South Main St Pueblo, CO 81003 With an additional copy to City Attorney City of Pueblo 9 503 N Main St. Suite 203 Pueblo, CO 81003 If to Concession Manager T & A Vong, Inc., dba Short Stop Deluxe Burgers 3854 Tee Shot Drive Colorado Spnngs, CO 80922 (b) Such notices shall be deemed to have been given when deposited in the regul. United States mail. SECTION 12. PEItA LIABILITY Concession Manager shall reimburse the City for the 11 amount of any employer contribution required to be paid by the City of Pueblo to the Publ c Employees' Retirement Association ( "PERA ") for salary or other compensation paid to a PERA retiree performing contracted services for the City under this Agreement. The Concession Manag r shall fill out the questionnaire attached as Exhibit C and submit the completed form to City as part :If the signed Agreement. SECTION 13. MISCELLANEOUS. (a) Additional Documents. The Parties agree to execute any additional documents or t. e any additional action that may be necessary to carry out this Agreement. (b) Force Majeure Any delays in or failure of performance by any party of its obligatio s under this Agreement shall be excused if such delays or failure are a result of acts of God, fire., floods, storms, hghtmng strikes, labor strikes, labor disputes, accidents, regulations or orders of ci it or military authorities, shortages of labor or matenals, or other causes, similar or dissimilar, which are beyond the control of such party (c) Binding Effect. This Agreement shall inure to the benefit of, and be binding upo , 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 otherwise expressly authonzed herein. (d) Section Captions. The captions of the paragraphs are set forth only for e convenience and reference of the Parties and are not intended in any way to define, limit or descri o e the scope or intent of this Agreement. (e) Integrations, Severability, Amendment, and Counterparts. This Agreement represent. the entire agreement between the Parties and supersedes all prior discussions and written agreemen is or understandings. This Agreement may be amended only by an instrument in writing signed by th Parties. If any provision of this Agreement is held invalid or unenforceable, no other provision sha 1 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 shalt be deemed an original, and all of which together constitute one and the same agreement. 10 (f) No Third Party Beneficiaries, No Waiver of Immunities. Nothing in this Agreeme t is intended, nor should it be construed, to create any nghts, claims, or benefits or assume . y 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 -11- 101 et seq., C.R.S (g) Waiver of Breach. A waiver by any party to this Agreement of the breach of any t- rm or provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either party (h) Authority of Signers. Each person signing this Agreement on behalf of a p. y represents and warrants that he or she has the requisite power and authority to enter into, execu1-, and deliver this Agreement on behalf of such party and that this Agreement is a valid and legal y binding obligation of such party enforceable against it in accordance with its terms. (i) Attorney's Fees and Costs of Collections. In the event that it becomes necessary f r the City to bring any action or proceeding to collect unpaid utilities, damages, janrtonal fees, cos s, or other sums due under this Agreement, to enforce any provision of this Agreement, to recov r damages for Club's breach of this Agreement, or to seek specific performance of this Agreement, t e City shall be entitled to collect its reasonable attorneys fees, costs of suit, and costs of collection s part of the judgment in such action or proceeding. (j) Relationship Nothing in this Agreement is intended to, or shall be deemed o constitute, a partnership or joint venture between the Parties, or to create any agency or partn r relationship between the Parties. Neither Party shall hold itself out as a partner, joint venture, age t, or representative of the other under this Agreement. This Agreement does not constitute a lease r create any tenancy or possessory interest in Concession Manager Concession Manager's rig s hereunder may be terminated in the manner provided in this Agreement without proceeding : s required in the Forcible Entry and Detainer Act. (k) Assignment. This Agreement shall not be assigned by Concession Manager withou the prior written consent of the City, which consent may be granted, denied, or conditioned in City's sole and absolute discretion. (1) Govermng Law and Venue. This Agreement shall be governed by the laws of t 1 e State of Colorado Venue for any action arising under this Agreement or for the enforcement of t 's Agreement shall be in a state court with jurisdiction located in Pueblo County, Colorado (m) Certain Provisions Survive Expiration of Term and Termination. The provisions I f this Agreement pertaining to indemnification, releases, covenants not to sue, providing draft . d completed work product to the City, and liability, shall survive both the expiration of the term of t is Agreement and termination of this Agreement, and such terms shall continue in effect for a period bf 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. 11 (n) No Multi- Fiscal Year Obligation on City This Agreement is expressly made subje t to the limitations of the Colorado Constitution. Nothing herein shall constitute, nor deemed o constitute, the creation of a debt or multi -year fiscal obligation or an obligation of fut e 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 s f this Agreement, with respect to any financial obligation of the City which may arise under t is Agreement in any fiscal year after 2010, in the event the budget or other means of appropriations or any such year fails to provide funds in sufficient amounts to discharge such obligation, such failu e shall not constitute a default or breach of this Agreement. including any sub - agreement, attachme t, schedule, or exhibit thereto, by the City DATED this 28 day of February , 2011 CITY OF PUEBLO, T & A VONG, INC., A MUNICIPAL CORPORATION DBA SHORT STOP DELUXE BURGERS By w By 40/ / ^-- President th ity Council Ted Vong, President Attest: � Attest: ''' � City rk Secretary Gr 12 . r EXHIBIT k PUEBLO MOTORSPORTS PARK CONCESSION FLOOR PLAN A 4 -. 601.1hrgik;S:ALES 1 - — 1 6 11 1 0 23 1 01 ...... 7 ................../..." .................. Prep Sink (Not Plumbed) . 54— 9 14 2 15 „,:k 17” ii:* , : 20 : 8 15' 0' 0 0 0 ,, - ° 10 4 f,itainiciisjiiiiria . 12 ..---- : 3 7 Panel Dout• to • 23' I. • 21 0' I. 2/23/2011/4.43 PM EXHIBIT B PUEBLO MOTORSPORTS PARK CONCESSION ARE INITIAL INVENTORY 1. GRIDDLE / RANGE (existing) 2. THREE COMPARTMENT SINK (existing) 3. DISPLAY COOLERR (existing) 4. STAINLESS STEEL PREP COUNTER (existing) 5. PREP SINK (existing) 6. DISHWASHER (existing) 7 FREEZER, DEEP (existing) 8. REFRIGERATOR (existing) 9 FREEZER, FOUR COMPARTMENT (existing) 10. STORAGE RACK (existing) 11. WATER HEATER (existing) 12. WATER HEATER BOOSTER TANK (existing) 13. HAND SINK (existing) EXHIBIT C 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 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 A-•/3 , 20 / / Name — Wet V Title rl'E? s t c�ovL 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 EXHIBIT D PROPOSED MENU FOR PIMP CONCESSION AREA Note Based on our experience, we have seen the following menu do really well with other race tracks and special events. This menu offers convenience, minimum preparation and excellent quality without sacrificing speed of service. They are the 20% of the Menu that generates 80% of the volume Simple, yet popular BREAKFAST MENU • BREAKFAST BURRITOS (Sausage, Egg, Cheese & Bacon, Egg, Cheese) • BREAKFAST SANDWICH (Sausage, Egg, Cheese) • GRILL CHEESE SANDWICH BREAKFAST BEVERAGES • COFFEE • HOT CHOCOLATE • APPLE JUICE • ORANGE JUICE LUNCH / DINNER MENU • CHEESEBURGER • DOUBLE CHEESEBURGER • BREADED CHICKEN SANDWICH • BRATWURST • HOT DOGS • CHILI CHEESE DOGS • PIZZA (Most time consuming menu item) • FRIES • CHILI CHEESE FRIES • NACHOS MISC SNACKS • ASSORTED CHIPS — Doritos, Lays Classic, Funyuns • ASSORTED CANDY — Skittles, Starburst, Snickers DRINKS • PEPSI • DIET PEPSI • MT DEW • WATER • GATORADE • MONSTER ENERGY DRINK Ted has stated as part of this contract / menu, he would provide some equipment. In the event that a Mobile Unit is used, a limited menu will be offered.