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HomeMy WebLinkAbout12097RESOLUTION NO. 12097 A RESOLUTION APPROVING AN AGREEMENT TO TERMINATE THE MANAGEMENT AGREEMENT FOR THE DRAG RACING EVENTS AT PUEBLO MOTORSPORTS PARK BETWEEN THE CITY AND SOLUTIONS MANAGEMENT LLC WHEREAS, the City and Solutions Management LLC entered into a Management Agreement for the operation and management of drag racing events at Pueblo Motorsports Park; and WHEREAS, the Parties wish to terminate the Management Agreement and settle all claims between them related to the Management Agreement. BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Agreement to Terminate the Management Agreement attached to this Resolution, approved as to form by the City Attorney, is hereby approved. The President of City Council is hereby directed to execute the Agreement to Terminate the Management Agreement on behalf of the City, and the City Clerk is directed to attest same. SECTION 2. This Resolution shall become effective immediately upon final passage and approving of Ordinance No.8311. INTRODUCED: February 28, 2011 BY: Judy Weaver COUNCILPERSON Background Paper for Proposed RESOLUTION AGENDA ITEM # M-6 DATE: February 28, 2011 DEPARTMENT: PARKS AND RECREATION, CREIGHTON WRIGHT, DIRECTOR TITLE A RESOLUTION APPROVING AN AGREEMENT TO TERMINATE THE MANAGEMENT AGREEMENT FOR THE DRAG RACING EVENTS AT PUEBLO MOTORSPORTS PARK BETWEEN THE CITY AND SOLUTIONS MANAGEMENT LLC AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE THE SAME ISSUE Should City Council approve the termination of the Solutions Management LLC contract for the management and operation of the drag racing events at Pueblo Motorsports Park? RECOMMENDATION Approval of this Resolution. BACKGROUND Passage of this item is contingent upon passage of the Ordinance budgeting and appropriating funds to operate drag racing. The contractor responsible for the operation and management of the drag strip at PMP terminated his contract effective December 31, 2010. The reasoning for terminating the contract was due to the City’s wish to manage drag racing in the future. FINANCIAL IMPACT Canceling the contract with Solutions Management LLC and having the City operate drag racing is expected to turn a daily net subsidy of $-600, to a daily net proceed of $1,500, or net annual proceed of approximately $50,000 for the Honor Farm Enterprise. AN AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION, SOLUTIONS MANAGEMENT, LLC TO TERMINATE THE RENTAL AGREEMENT FOR THE DRAG STRIP AT PUEBLO MOTORSPORTS PARK THIS TERMINATION AGREEMENT is entered this 28th day of February, 2011, by and between Pueblo, a Municipal Corporation ( "City "), and Solutions Management, LLC ( "Manager ") RECITALS A. The Parties entered into the Rental Agreement attached as Exhibit 1 B The Parties wish to terminate the Rental Agreement and settle all claims between them related to the Rental Agreement. In consideration of the foregoing recitals, and the terms and conditions set forth herein, the Parties agree as follows TERMS AND CONDITIONS SECTION 1 DEFINITION As used herein, the following words and phrases shall have the following meanings "Rented Premises" includes both the "Drag Premises" and the "Shared Premises" as those terms are defined in the Rental Agreement, Exhibit 1 SECTION 2. RENTAL AGREEMENT TERMINATED. (a) The Rental Agreement is terminated effective February 14, 2011, and all rights and obligations under the Rental Agreement shall cease effective that date, except as otherwise provided in this Termination Agreement. (b) The Parties waive any requirement in the Rental Agreement requiring notice of termination and any other requirement, procedure, or method for termination of the Rental Agreement. (c) The provisions of the Rental Agreement pertaining to indemnification and releases shall survive termination of the Rental Agreement, and such terms shall continue in effect for a period of five years following the termination of the Rental 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 1 (d) The termination of the Rental Agreement shall not affect this Termination Agreement or any duty, obligation, or claim under this Termination Agreement. SECTION 3. MUTUAL RELEASE OF CLAIMS. (a) In consideration of City's promises in this Termination Agreement, Manager hereby forever releases and waives any and all claims, known and unknown, and any suit or action in law or equity, against City and its officers, employees, agents and independent contractors ( "Released Parties ") in any court or tribunal, based on contract, tort, statute, violation of civil rights, or any other legal theory, for any violation of or failure to comply with the Rental Agreement, or any physical injury, psychological injury, death, or property damage or loss that Manager may have suffered related to the Rental Agreement or caused by the Released Parties, which are in any way related to the Rental Agreement. (b) In consideration of Manager's promises contained in this Termination Agreement, City hereby forever releases and waives any and all claims, known and unknown, and any suit or action in law or equity against Manager and its officers, employees, agents and independent contractors in any court or tribunal, based on contract, tort, statute, violation of civil rights, or any other legal theory, for any violation or failure to comply with the Rental Agreement, or any physical injury, psychological injury, death, or property damage or loss that City may have suffered, related to the Rental Agreement or caused by Manager, which are in any way related to the Rental Agreement (c) The foregoing releases shall not apply to any claims arising under this Termination Agreement or any term of the Rental Agreement that survives termination as provided in this Termination Agreement. (d) The City's release of claims against Manager shall not apply to any taxes or fees due or to become due to the City SECTION 4. PROPERTY AND CONDITION OF EQUIPMENT AND PREMISES. (a) Manager shall leave the Rented Premises in a clean, undamaged, and orderly condition. (b) Manager shall not remove any vehicles, fixtures, chattels, equipment or personal property of any kind from the Rented Premises, even if Manager claims that the property belongs to Manager or to third parties, unless and until the City specifically agrees in writing that the item may be removed. (c) Manager hereby grants, assigns, and conveys all right, title and interest in the domain name www pueblomotorsportspark.com and shall cooperate with City by executing any further documents that may be necessary to ensure that all right, title, interest and control of the domain name is promptly vested and titled in the City of Pueblo 2 (d) Manager hereby grants, assigns, and conveys to City all right, title, and interest in any advertising, logos or promotional material, tangible and intangible, containing the words "Pueblo Motorsports Park," "PMP" and the like Manager shall cooperate with City by executing any further documents that may be necessary to ensure that all right, title, interest and control of the advertising and promotional materials are promptly vested and titled in the City of Pueblo (e) Manager hereby grants, assigns, and conveys to City all right, title, and interest in Manager's logo, trademark and service mark attached hereto as Exhibit 2 Manager shall cooperate with City by executing any further documents that may be necessary to ensure that all right, title, interest and control of the logo, trademark, and service mark is promptly vested and titled in the City of Pueblo SECTION 5. STATEMENTS, ANNOUNCEMENTS, AND PRESS RELEASES. (a) Manager and its officers and directors shall refrain from making any derogatory comments in public or in private suggesting that the turn over of the drag strip from Manager to the City was unfortunate or suggesting, implying or insinuating in any way that the City's operation of the Drag Strip will not be conducted in a way that is exciting, safe, entertaining, and affordable Any statements made by Manager's officer or directors shall be imputed to manager for purposes of this clause. Manager's obligations under this Section shall terminate three (3) years after execution of this Termination Agreement (b) Within the eight months following the execution of this Agreement, Manager and its officers and directors shall cooperate with City in promoting the drag strip at Pueblo Motorsports Park by making at least eight (8) favorable statements, announcements, comments on talk shows, or published press releases in public forums such as radio, newspaper and television provided within Pueblo County stating in various ways and forms that. (1) Manager has turned over operation of the Drag Strip at Pueblo Motorsports Park to the City; (2) That the Drag Strip at Pueblo Motorsports Park is an excellent facility providing exciting and affordable entertainment for those who love drag racing; (3) That the City of Pueblo will be attracting top drag racing talent and top drag racing vehicles in the coming Spring, Summer and Fall of 2011, and (4) Drag racing fans should come on out to the Drag Strip at Pueblo Motorsports Park for the 2011 drag racing season, which is expected to be the best ever SECTION 6. LIQUIDATED DAMAGES FOR VIOLATION OF CERTAIN PROVISIONS. The Parties agree that it would be difficult to estimate the actual damages the City would suffer from Manager's violations of Section 5 of this Termination Agreement, but liquidated damages in the amount of Five Thousand Dollars ($5,000) is a fair and reasonable estimate of such damages and is reasonably related and reasonably proportionate to the 3 actual damages that the City would suffer from such violation. The Parties intend to liquidate these damages to avoid the time and cost that would be spent in calculating the actual damages. Therefore, in the event that manager violates any provision of Section 5, the City shall be entitled to liquidated damages m the amount of Five Thousand Dollars ($5000) for each such separate violation. This remedy shall be in addition to any other remedy that the City may have under law, equity, or in this Termination Agreement. SECTION 7 CITY COUNCIL APPROVAL REQUIRED This Termination Agreement is expressly made contingent upon its approval by City Council by resolution and it shall not become effective until such approval occurs. SECTION 8. MISCELLANEOUS. (a) Additional Documents. The Parties agree to execute any additional documents or take any additional action that may be necessary to carry out this Termination Agreement. (b) Force Majeure Any delays in or failure of performance by any party of its obligations under this Termination 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 (c) Binding Effect. This Termination 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 Termination Agreement except as otherwise expressly authorized herein. (d) 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 Termination Agreement. (e) Integration, Severability, Amendment, and Counterparts. This Termination Agreement represents the entire agreement between the Parties and supersedes all prior discussions and written agreements or understandings. This Termination Agreement may be amended only by an instrument in writing signed by the Parties. If any provision of this Termination Agreement is held invalid or unenforceable, no other provision shall be affected by such holding, and all of the remaining provisions of this Termination Agreement shall continue in full force and effect. This Termination 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. (f) No Third Party Beneficiaries, No Waiver of Immunities. Nothing in this Termination 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 4 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 (g) Waiver of Breach. A waiver by any party to this Termination Agreement of the breach of any term or provision of this Termination 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 Termination 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 Termination Agreement on behalf of such party and that this Termination Agreement is a valid and legally 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 for the City to bring any action or proceeding to collect sums due under this Termination Agreement, to enforce any provision of this Termination Agreement, to recover damages for Manager's breach of this Termination Agreement, or to seek specific performance of this Termination Agreement, 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. (j) Relationship Nothing in this Termination Agreement is intended to, or shall be deemed to constitute, a partnership or point 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 Termination Agreement. (k) Assignment. This Termination Agreement shall not be assigned by either party (1) Governing Law and Venue. This Termination Agreement shall be governed by the laws of the State of Colorado Venue for any action arising under this Termination Agreement or for the enforcement of this Termination Agreement shall be in a state court with jurisdiction located in Pueblo County, Colorado SOLUTIONS MANAGEMENT, LLC PUEBLO, A MUNICIPAL CORPORATION By I By A� J�'A'C,_ Darrell Contreras, Managing Member President of �'ity ouncil Printed Name Printed Name 5 Title Title ATTEST ATTEST City rk APPROVED AS TO FORM. Thomas J Fl yak / City Attorney 6