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HomeMy WebLinkAbout12614RESOLUTION NO. 12614 A RESOLUTION AWARDING AND APPROVING A LEASE AND MANAGEMENT AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND FAASST MOTORSPORTS, INC. FOR THE OPERATION, MANAGEMENT, AND PROMOTION OF CERTAIN FACILITIES AT PUEBLO MOTORSPORTS PARK AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE THE SAME WHEREAS, a proposal to operate, manage, and promote certain facilities at Pueblo Motorsports Park (PMP) have been received and examined; and WHEREAS, the proposal of FAASST Motorsports, Inc. of Colorado Springs, Colorado was determined to be most responsive. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. An Agreement, a copy of which is attached hereto and made part hereof by reference, after having been approved as to form by the City Attorney, by and between the City of Pueblo, a Municipal Corporation, and FAASST Motorsports, Inc., to operate, manage, and promote certain facilities at Pueblo Motorsports Park (PMP) is hereby approved, subject to the conditions as set forth in said Agreement. SECTION 2. The President of City Council is hereby authorized to execute said Agreement on behalf of the City of Pueblo, a Municipal Corporation, and the City Clerk shall affix the seal of the City thereto and attest the same. INTRODUCED: March 11, 2013 BY: Chris Kaufman Background Paper for Proposed RESOLUTION DATE: March 11, 2013 AGENDA ITEM # Q-1 DEPARTMENT: STEVEN MEIER, INTERIM DIRECTOR PARKS AND RECREATION DEPARTMENT TITLE A RESOLUTION AWARDING AND APPROVING A LEASE AND MANAGEMENT AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND FAASST MOTORSPORTS, INC. FOR THE OPERATION, MANAGEMENT, AND PROMOTION OF CERTAIN FACILITIES AT PUEBLO MOTORSPORTS PARK AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE THE SAME ISSUE Should City Council approve an agreement with FAASST Motorsports, Inc., for the operation, management, and promotion of the drag racing and road racing facilities located within the Pueblo Motorsports Park (PMP)? RECOMMENDATION Approval of the Resolution. BACKGROUND In 2009, the City of Pueblo established the Honor Farm Enterprise responsible for the operation, management, and improvement of the 2,373 acre Honor Farm property. The Honor Farm Enterprise, by City Ordinance, is required to be operated and managed without subsidy from the City’s General Fund. The racing facility at Pueblo Motorsports Park contains approximately 233 acres of motorsports areas and facilities within the Honor Farm property. In order to continue offering racing opportunities to the community, staff was directed to solicit proposals from independent operators to operate and manage the facility. On December 17, 2012, the City issued a Request For Proposals (RFP) to accept proposals from interested contractors to operate, manage, and promote the drag racing and road racing facilities located within Pueblo Motorsports Park (PMP). One proposal was received. The appointed selection committee determined that the proposal received from FAASST Motorsports, Inc., is in the best interests of the City. FINANCIAL IMPACT: In accordance with the specifications as described in the RFP and the Contractor’s proposal, the Contractor agrees to pay to the City on the following payment schedule: Base Rent Year 1 (March 1, 2013 to December 31, 2013) $10,000 Year 2 (January 1, 2014 to December 31, 2014) $25,000 Year 3 (January 1, 2015 to December 31, 2015) $35,000 Additional Percentage Year 1 – 50% of any profit over $85,000 in annual events profit Year 2 – 60% of any profit over $120,000 in annual events profit Year 3 – 70% of any profit over $130,000 in annual events profit Contractor is also responsible for paying all utilities, including, but not limited to, electric, gas, sewage, water, trash, cable, and internet. It is expected that the City will be responsible for approximately $40,000 to $70,000 in expenses this year, depending upon required repairs to the track (general maintenance not relating to the construction warranty), including equipment and facility repairs and equipment lease costs. Contractor may enter into sponsorship contracts for less than $20,000. Any sponsorship contract over $20,000 or involving the naming or the whole, or any portion of, the leased premises must be approved by the City. A LEASE AND MANAGEMENT AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND FAASST MOTORSPORTS, INC. FOR CERTAIN FACILITIES AT PUEBLO MOTORSPORTS PARK This Agreement ( "Agreement ") is made and entered into this 11 day of March, 2013, by and between the City of Pueblo acting by and through its Honor Farm Properties Enterprise ( "City "), and FAASST Motorsports, Inc. ( "FAASST ") RECITALS WHEREAS, the City owns certain real property known as the Pueblo Motorsports Park, located at 3733 North Pueblo Boulevard, Pueblo, Colorado 81008 (the "Park "); and WHEREAS, FAASST has experience managing and conducting motor sports events and desires to manage, use, and operate certain facilities at the Park for the purpose of conducting motor sports events; and WHEREAS, City is willing to enter into this Agreement to permit FAASST to manage, use and operate certain facilities at the Park for the purpose of conducting motor sports events at the Pueblo Motorsports Park in accordance with and subject to the terms and conditions of this Agreement; NOW, THEREFORE, in consideration of the mutual promises and agreements of the Parties hereto, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows: TERMS AND CONDITIONS 1. DEFINITIONS. As used herein, the following words and phrases shall have the following meanings: (a) "Leased Premises" means and includes all of the facilities, tracks, buildings, and land included within that area of the Park outlined in red on the map and /or aerial photo attached to the this Agreement as Exhibit A. No event shall be conducted outside the leased boundary on the Honor Farm property without prior written approval of the City. (b) "Director" means the City's Director of Parks and Recreation or any person that the Director of Parks and Recreation may authorize to act in his stead. (c) "Equipment" shall mean all equipment, supplies and /or materials listed in Exhibit B attached hereto. (d) "Leased Equipment," "Routine Equipment," "Scrap Equipment," and "Concession and Office Equipment" used individually shall only mean that equipment specifically designated by, and listed under those headings in Exhibit B attached hereto. (e) "Physical Facilities" shall mean the buildings, parking lots, tracks, plumbing system, heating system, and electrical system located on the Leased Premises. (f) "Profit" shall mean gross income generated from any source received by FAASST less normal and reasonable event costs. See Exhibit C attached hereto. (g) "Sponsorship Contract" means any contractual arrangement in which a third party business pays for the right to have its product used or sold at the Leased Premises, or to place advertising signs, banner, and other materials at the Leased Premises. 2. EXHIBITS TO AGREEMENT. (a) The following exhibits are attached and incorporated as part of this Agreement: Exhibit A: Map and /or Aerial Photograph with marked perimeter designating the Leased Premises Exhibit B: List of Equipment Exhibit C: Chart of Accounts Exhibit D: List of City Repairs /Improvements Exhibit E: Request for Proposal for Project No. 12 -088 Exhibit F: Certificate of Insurance Exhibit G: PERA Questionnaire (b) In the event of any conflict between the terms of this Agreement and any Exhibit made a part of this Agreement, the Terms and Conditions of this Agreement shall take precedence and control over all Exhibits. 3. GRANT OF EXCLUSIVE RIGHT TO OCCUPY AND OPERATE LEASED PREMISES. (a) City grants to FAASST the exclusive right to occupy, use, manage, and operate the Leased Premises in order to conduct motor sports events, subject to: (1) The City's right to enter the Leased Premises with or without notice to FAASST to inspect the premises, and to perform major repairs. (2) The City's right to review and approve any and all Sponsorship Contracts as set forth in Section 9 of this Agreement; (3) The City's right to inspect the records, including but not limited to sales receipts, inventory lists, equipment logs, third party Release Agreements, purchasing orders, payroll, financial records, tax returns and bank statements, of FAASST, or any subcontractor contracted by FAASST to work, manage, or operate all or a portion of the Leased Premises. Any subcontract agreement must include a provision reserving this right to the City; 2 (4) FAASST holding, operating and /or managing a guaranteed minimum number of racing events on the Leased Premises as follows: ® Six (6) road racing events (motor cycle or auto) • Twelve (12) consecutive Friday Night Drag events (June, July, August) ® Four (4) Drag racing points events (5) FAASST honoring the 2012 Gold Cards and 2012 Youth Passes for all events held at the Leased Premises during 2013; (6) FAASST allowing the Pueblo Police Department to use the Leased Premises for training purposes on dates scheduled for 2013 as set forth in the Request for Proposal attached hereto as Exhibit E; and (7) FAASST entering into a rental agreement with Southern Colorado Quarter Midgets Association for use of the quarter midget track located within the Leased Premises. 4. TERM. (a) The initial Term of this Agreement shall commence on March 11 2013 and end on December 31, 2015 ( "Term ") unless sooner terminated pursuant to the terms of this Agreement. (b) Either party may have the option to extend the term of this Agreement for up to three (3) additional three (3) year terms by giving the other written notice of its intent to exercise its option within one hundred and twenty (120) days prior to the expiration of the then current term. Any extension beyond the original term of this Agreement is contingent upon the parties negotiating in good faith any changes to the terms of this Agreement. No extension shall be effective until it is reduced to writing and signed by both parties. 5. RENT. (a) Base Rent. FAASST shall pay to the City without notice, offset or deduction base rent for the Lease Premises as follows: i. Year 1 (March 11, 2013 — December 31, 2013) $10,000 ii. Year 2 (January 1, 2014 — December 31, 2014) $25,000 iii. Year 3 (January 1, 2015 — December 31, 2015) $35,000 (b) Additional Percentage. In addition to the base rent, FAASST shall pay to the City as rent for the Leased Premises an Additional Percentage as follows: i. Year 1 — 50% of any Profit over $85,000 ii. Year 2 — 60% of any Profit over $120,000 iii. Year 3 — 70% of any Profit over $130,000 3 (c) Base Rent shall be made payable to Honor Farm Enterprise and delivered to the Director at the place designated in this Agreement for Notice to the City. Base Rent shall be paid into the Honor Farm Properties Enterprise. Base Rent shall be due without notice, offset or deduction in two equal increments each year with the first due on or before June 30 of each year and the second due on or before September 30 of each year. (d) Additional Percentage, if any, shall be due and payable within 30 days of the end of the year (i.e. for Year 1 — January 30, 2014). Any and all Additional Percentage shall be made payable to the Honor Farm Enterprise and delivered to the Director at the place designated in this Agreement for Notice to the City. The City shall use seventy -five percent (75 %) of all Additional Percentage paid by FAASST to maintain, repair, and /or upgrade the Leased Premises. The City shall consider recommendations from FAASST Motorsports with regard to the maintenance, repairs, and /or upgrades desired on the Leased Premises or access thereto; however, the City shall make all final decisions regarding the expenditure of the Additional Percentage within its sole and absolute discretion. Unexpended Additional Percentage shall be carried over from one year to the next on an ongoing basis. (e) FAASST shall pay to City a late fee in the amount of five percent (5 %) of the Base Rent for any rent payment paid more than thirty (30) days after it is due. All rent, fees, and other sums due under this Agreement shall bear interest at the rate of eight percent (8 %) per annum from the date the sum first becomes due, compounded monthly. 6. UTILITIES. FAASST shall pay, before delinquent, all charges for utilities, including but not limited to electric, gas, sewage, water, phone, trash, cable, and internet. 7. SECURITY DEPOSIT. (a) FAASST shall pay to City and City shall retain a deposit in the sum of Three Thousand Five Hundred Dollars ($3,500) to ensure performance of FAASST's obligations under this Agreement. FAASST shall pay one half of the Security Deposit ($1,750) upon execution of this Agreement. FAASST shall pay the balance of the Security Deposit ($1,750) no later than seven business days after FAASST holds its first revenue generating event. In the event that FAASST fails, neglects or refuses to pay any rent, fee, or other sum due under this Agreement, or fails to perform any obligation under this Agreement, then City may, in its sole and absolute discretion, draw from this security deposit to remedy FAASST's default. Nothing contained in this Agreement shall require City to remedy FAASST's default in this manner, and City may instead, in its sole and absolute discretion, refuse to remedy FAASST's default by drawing on the security deposit, and instead pursue the remedies for default provided in this Agreement or by law (b) In the event that City draws from this security deposit to remedy FAASST's default, City shall notify FAASST in writing and require FAASST to replenish the deposit to its 4 original level. Failure of FAASST to comply with this section shall constitute a material breach of this Agreement. (c) Within sixty (60) days after the Term of this Agreement, including any extension thereof, expires or terminates City shall refund to FAASST the security deposit, less any portion of the security deposit that City has applied to remedy any of FAASST's defaults under this Agreement, including but not limited to unpaid rent, other sums due under this Agreement, and any damages or cleaning that may be required, whether discovered during the term of this Agreement or afterward. 8. CITY TO PROVIDE CERTAIN CAPITAL IMPROVEMENTS AND EQUIPMENT. (a) City has paid for certain capital improvements to the Leased Premises and purchased the Equipment presently located on the Leased Premises as set forth in Exhibit B attached hereto, for FAASST's use on the Leased Premises. All such improvements and Equipment shall remain Property of the City and shall be returned to the City at the termination of this Agreement. All Equipment shall be tagged with City identification within one (1) month of signing of this document. (b) FAASST shall not remove any Equipment from the Leased Premises without the express written consent of the City. FAASST shall operate and maintain , at its own expense, all Equipment. ALL EQUIPMENT PROVIDED TO FAASST AS SET FORTH IN EXHIBIT B IS ON AN "AS IS" "WITH ALL FAULTS" BASIS, AND CITY MAKES NO REPRESENTATION OR WARRANTY AS TO THE CONDITION OR FITNESS OF THE EQUIPMENT FOR ANY PARTICULAR USE OR PURPOSE. FAASST is hereby advised that FAASST shall be solely responsible for personally inspecting the Equipment before execution of this Agreement and any use of the Equipment. FAASST's execution of this Agreement and use of the Equipment shall constitute an expressed acknowledgement by FAASST that the Equipment is safe and adequate for FAASST's intended and permitted use. FAASST shall have exclusive control of the Equipment during the pendency of this Agreement, subject to the City's right of inspection, and shall be responsible for all equipment and for adequate safeguard for the protection of FAASST, its employees, agents, independent contractors, subcontractors, and representatives, and persons engaged in any activity on the Leased Premises. Notwithstanding any provision in this Agreement to the contrary or which may be construed to the contrary, City assumes no obligation or responsibility to replace the Equipment, or to keep or maintain the Equipment in good and safe condition, appearance or state of repair, regardless of cause of need for maintenance, repair and /or replacement. 9. SPONSORSHIP CONTRACTS AND WEBSITE. (a) Sponsorship Contracts. FAASST may enter into sponsorship contracts for less than Twenty Thousand Dollars ($20,000) without the prior written consent of the City; however, the City reserves the right to require FAASST to discontinue any sponsorship contracts and /or advertising that the City believes, in its sole and absolute discretion, is not in the City's best interests. Any sponsorship contract over Twenty Thousand Dollars ($20,000) or involving the 5 naming of the whole, or any portion of the Leased Premised must be approved by the City in writing, which approval may be withheld at the sole and absolute discretion of the City. (b) Website. FAASST must work with the City and provide necessary information to the City in order to update the Pueblo Motorsports Park website at all times during the Term of this Agreement and any extension thereof. FAASST must insure a proper link from the Pueblo Motorsports Park website to the City of Pueblo website at all times during the Term of this Agreement. The City has the right to require FAASST to discontinue any advertising on the Pueblo Motorsports Park website that the City believes, in its sole and absolute discretion, is not in the City's best interests. 10. MAINTENANCE OF LEASED PREMISES AND EQUIPMENT. (a) The City will complete the repairs and /or improvements set forth in Exhibit D attached hereto within ninety (90) days of the execution of this Agreement. The time to complete these repairs and /or improvements may be extended by written agreement between FAASST and the Director. (b) FAASST shall operate, staff, manage, clean, repair, keep clean and sanitary, and maintain the Leased Premises and Equipment. FAASST shall perform these duties with reasonable care according to the highest standards in the industry. (c) FAASST shall use and maintain the Leased Premises in a clean, safe, and orderly manner, in compliance with all federal, state, and city laws and regulations and all rules and polices promulgated by the Director. FAASST shall not allow any drifting events, military training or ramming exercises on the race tracks within the Leased Premises. (d) FAASST shall not set any portion of the Park on fire; or use any incendiary or explosive devices without the prior written approval of the Fire Department and Director. (e) FAASST shall repair and restore the Leased Premises and all its tracks and facilities to pre -event condition within a reasonable time after each FAASST event. FAASST shall report to the Director any major damage to the Leased Premises within one business day after the damage occurs (f) FAASST shall provide dust control during its use of off -road areas when necessary, to the extent and degree determined by City in its sole and absolute discretion, which shall include the use of Equipment to spray the tracks when using off -road areas. (g) FAASST shall immediately clean up oil spills or any other fluid spills on the Leased Premises, including but not limited to the tracks, pits and staging areas. FAASST will comply with all federal, state, and local laws, rules and regulations pertaining to the clean-up and disposal of oil, chemicals and other waste. (h) The City may inspect the Leased Premises at any time to determine if any additional cleaning is necessary, including but not limited to fluid spills, major debris, screws 6 and glass. If so directed by the City after inspection of the Leased Premises, FAASST shall perform all necessary additional clean -up at its sole expense. (i) FAASST shall record all hours of use of each piece of Leased Equipment in a log, which shall be provided to the City Fleet Services Supervisor the first day of each month. FAASST will not allow anyone other than City personnel and /or persons specifically approved by the City in writing, to maintain and /or repair the Leased Equipment. FAASST will take all Leased Equipment to the City Fleet Department at regularly scheduled times for routine maintenance and repairs. Within ten (10) days after this Agreement is executed by both parties, and by January 15 of each year the Agreement is in effect thereafter, FAASST shall set up a yearly schedule for routine maintenance on the Leased Equipment with Fleet Services. All repairs must be done during the City fleet normal working hours M -F from 8:00 a.m. to 5:00 p.m. All invoices provided to FAASST for maintenance, repair, and /or replacement of the Leased Equipment, or any Equipment listed in Exhibit B, shall be paid within forty -five (45) days of the invoice. Upon reasonable notice, FAASST will provide access to the Leased Premises and Equipment in order to allow the City to inspect and test the Equipment. FAASST will only hire and use qualified persons to operate the Leased Equipment. FAASST shall notify the Director of any damage or theft of Equipment within twenty -four (24) hours of the occurrence. (j) FAASST shall be responsible, at its sole expense, for all routine maintenance of the Physical Facilities and Equipment. (k) FAASST shall pay the first one thousand five hundred dollars ($1,500) per occurrence, to repair and /or replace the Physical Facilities, Leased Equipment and Routine Equipment. Thereafter, the City shall pay any and all remaining amounts necessary to repair and /or replace the Physical Facilities, Leased Equipment and Routine Equipment so long as the repair and /or replacement is not necessitated by the negligence of FAASST, its employees, agents, subcontractors, guests and /or invitees; except that the City may, within its sole and absolute discretion, choose not to repair or replace Routine Equipment if it determines the repair and /or replacement is not necessary to the operation of the Leased Premises. (1) FAASST shall pay the first five hundred dollars ($500) per occurrence, to repair and /or replace the Concession and Office Equipment. Thereafter, the City shall pay any and all remaining amounts necessary to repair and /or replace the Concession and Office Equipment so long as the repair and /or replacement is not necessitated by the negligence of FAASST, its employees, agents, subcontractors, guests and /or invitees; except that the City may, within its sole and absolute discretion, choose not to repair or replace the Concession and Office Equipment if it determines the repair and /or replacement is not necessary to the operation of the Leased Premises. (m) FAASST shall be responsible for maintaining all tracks in substantially the same condition as they existed on the date of this Agreement except for normal and acceptable wear and tear. 7 (n) City shall be responsible for disposing of all Scrap Equipment listed in Exhibit B within twelve (12) months of the date of this Agreement. 11. CONSERVATION EASEMENT; KEYS; AND PYROTECHNICS. (a) Conservation Easement. FAASST understands and agrees that this Agreement and FAASST's use of the Leased 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 "). FAASST acknowledges receipt of a copy of the Easement. City makes no representation or warranty that FAASST's intended use of the Park or the provisions of this Agreement are approved uses or allowed under the Easement. (b) Keys. FAASST must provide access per city request to the Leased Premises, including but not limited to any buildings, facilities, and tracks. In the event that FAASST changes any locks to any buildings, gates, or facilities FAASST must immediately provide copies of the keys to the Director. (c) No Pyrotechnic Devices. FAASST shall under no circumstance use pyrotechnic devices, explosives, fireworks or incendiary devices of any kind anywhere in the Park without prior written approval from the Fire Department and the Director. 12. INSURANCE, INDEMNITY, AND RELEASES. (a) Insurance and Proof of Insurance. FAAST shall, within ten (10) days after this Agreement is executed by both parties, and on the anniversary of such execution each year, obtain the following insurance coverages and provide to the City the following Certificates of Insurance showing that FAASST has obtained the following insurance coverages. FAASST shall maintain all such insurance coverages at all times during the term of this Agreement: (1) Workers' Compensation Insurance, including Occupational Disease Provisions, effective during the entire Term of this Agreement and any extension thereof, fully complying with the provisions of the Workers' Compensation Act, as amended, of the State of Colorado.. Such insurance shall be obtained notwithstanding that FAASST may have no employees as defined under said Act or that FAASST 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 FAASST performing work on the project irrespective of whether such employees may be shareholders, managers, partners or owners of Contractor or exempt employees under the Act. If any class of employees engaged in hazardous work under this Agreement at the Leased Premises is not protected by the Workers' Compensation statute, the Contractor shall provide, and similarly shall cause each subcontractor to provide, special insurance for the protection of such employees not otherwise protected. The Workers' Compensation Insurance policy shall contain an endorsement waiving subrogation against the City. (2) Commercial General Liability Insurance, effective during the entire Term of this Agreement and any extension thereof, issued to and covering the liability of FAASST with respect to all work and events performed by FAASST and its subcontractors under this 8 Agreement, to be written on a Commercial General Liability policy form. This insurance shall be written in amounts not less than $2,000,000 for each occurrence and $4,000,000 aggregate. This policy of insurance shall be endorsed naming the City of Pueblo, its Enterprises, controlled Nonprofit Corporations, their officers, agents and employees as additional insured. The policy shall also provide coverage for contractual liability assumed by FAASST under the provisions of this Agreement, and "Completed Operations and Projects Liability" coverage. The Commercial General Liability Insurance policies shall contain a waiver of subrogation. (3) Comprehensive Automobile Liability Insurance effective during the entire Term of this Agreement and any extension thereof, written with limits of liability for injury to one person in any single occurrence of not less than $1,000,000 and for any injury to two or more persons in any single occurrence of not less than $1,000,000. This policy of insurance shall be endorsed naming the City of Pueblo, its Enterprises, controlled Nonprofit Corporations, their officers, agents and employees as additional insured. This insurance shall include uninsured /underinsured motorist coverage and shall protect FAASST from any and all claims arising from the use both on and off the Basic Services site of motor vehicles, including any automobiles, trucks, tractors, backhoes and similar equipment whether owned, leased, hired or used by FAASST. The Comprehensive Automobile Liability Insurance policies shall contain a waiver of subrogation. (b) Notices to City in Policies. Every insurance policy and certificate of insurance specified in subsection (a) of this Section shall contain a provision and /or special endorsement requiring that the Insurer notify the City in writing, in the manner provided in this Agreement, in the event that any such policy or coverage is revoked, terminated, rescinded, or lapses. (c) FAASST Releases and Waives Claims. FAASST forever releases and waives any and all claims, known and unknown, presently existing or arising in the future, and any suit or action in law or equity against the City, its Enterprises, controlled Nonprofit Corporations, their officers, agents, independent contractors, and employees ('Released Parties ") in any court or tribunal, based on tort, statute, violation of civil rights, or any other legal theory, for any physical injury, psychological injury, death, or property damage or loss that FAASST, its officers, agents, independent contractors, or employees may suffer, related to or caused by the Released Parties, or any vehicle, object, thing, or activity in any building or facility owned, leased, operated or controlled by the Released Parties. (d) FAASST Covenants Not to Sue. FAASST shall not file, pursue or prosecute any suit, action or proceeding, in law or in equity, in any court or tribunal, against the Released Parties, based on tort, statute, violation of civil rights, or any other legal theory, for any physical injury, psychological injury, death, or property damage or loss that FAASST, its officers, agents, independent contractors, or employees may suffer related to or caused by the Released Parties, or any vehicle, object, thing, or activity in any building or facility owned, leased, operated or controlled by the Released Parties. (e) FAASST Indemnifies. FAASST shall indemnify, defend and hold harmless the Released Parties against any liability for any damages, attorneys fees, and restitution that may be imposed by any court or tribunal in any suit, action or proceeding in law or equity filed by any person or entity based on tort, statute, violation of civil rights, or any other legal theory, for any 9 physical injury, psychological injury, death, or property damage or loss that any such third person may suffer as a result of any cause, including related to or caused by the Released Parties, or any vehicle, object, thing, or activity in any building or facility owned, leased, operated or controlled by the Released Parties. (f) FAASST Must Obtain Releases from Third Parties. Prior to entering the Park on any FAASST Event day, all FAASST employees and agents, and event participants MUST sign a Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement ( "Release Agreement "), the language of which must be approved by the Director, in the presence of FAASST personnel and all executed Release Agreements shall be maintained and kept on file by FAASST for at least three (3) years from the date of the Release Agreements. Originals or copies of the Release agreements shall be delivered to the City upon its request. FAASST's obligation to maintain these records and provide them to the City upon request shall survive termination or expiration of this Agreement. FAASST shall bear sole responsibility for full compliance with this Section. Entry into the Park by any FAASST employee and agents and event participants during an event prior to the execution of a Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement by such individual shall constitute a material breach of this Agreement by FAASST. 13. IMPROVEMENTS. (a) FAASST Fuel Storage Facility. If FAASST decides to utilize the above ground fuel storage facility it shall utilize and maintain the system in compliance with all Federal, State and City ordinances and laws, specifically including all City fire ordinances and regulations. Any other fuel vendor hired by FAASST shall also meet with the City Fire Department prior to selling fuel to ensure they are in compliance with all Federal, State and City ordinances, and laws. (b) Costs of Improvements; Approval Required. All costs associated with the development, installation, construction, and maintenance of any improvements shall be the sole responsibility of FAASST. All improvements must be approved in writing by the City prior to installation or construction. Any proposed changes must meet all building permit regulations and be constructed, installed, maintained, and operated in compliance with all local, state, and federal laws and regulations. FAASST must obtain the prior written approval of the Director for any proposed improvements and a certificate from the Pueblo Regional Building Department approving any proposed improvements. FAASST shall maintain the improvements in good and safe condition, appearance and state of repair, regardless of the cause or need for maintenance and repair. (c) Improvements Become City Property Upon Termination of Agreement. All improvements shall become the property of the City at the option of the City upon termination or expiration of this Agreement. 14. INTELLECTUAL PROPERTY. This Agreement is solely for access to and use of the Leased Premises. FAASST shall not photograph, film, or broadcast any Event or any part thereof without first obtaining the prior written consent of the City. In addition, no footage or images obtained from City access granted herein may be reproduced, sold, broadcast, commercially 1 0 exploited, or distributed without a separate written license agreement from the City authorizing such use. 15. NO REPRESENTATION OR WARRANTY OF CONDITION OR FITNESS. THE LEASED PREMISES IS 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 LEASED PREMISES FOR FAASST'S EVENTS OR FOR ANY PARTICULAR USE OR PURPOSE. Accordingly, FAASST is hereby advised that FAASST shall be solely responsible for personally inspecting the Leased Premises before execution of this Agreement and commencement of any Event. FAASST's execution of this Agreement or commencement of any Event shall constitute an expressed acknowledgement by FAASST that the Leased Premises is safe and adequate for FAASST's permitted use. FAASST shall have exclusive control of the Leased Premises during the pendency, of this Agreement, subject to the City's right of access, and shall be responsible for all equipment and for adequate safeguard for the protection of FAASST, its employees, agents, independent contractors, subcontractors, and representatives, and persons engaged in any activity on the Leased Premises. 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 Leased 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. 16. MINORS. No individual under the age of 18 years including Junior Dragsters and Quarter Midget racers shall be allowed in any restricted area of the Leased Premises (which shall include the track surface, starting line area, garage areas, staging lanes, run -off areas, trackside communications stations, and any other location as defined in generally accepted policies of liability coverage for Motorsports entities), without a (1) Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement, and (2) a Parental Consent to the Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement executed by each minor and the minor's parent or legal guardian. The language of the Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement and Parental Consent to the Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement must be approved by the Director. These documents must be signed in the presence of FAASST personnel and are required before said minor's entrance into the restricted areas of the Leased Premises. All executed documents shall be delivered maintained and kept on file by FAASST for three (3) years from the dated of the Release Agreements. Originals and /or copies of the Release Agreements shall be delivered to the City upon request. FAASST's obligation to maintain these records and provide them to the City upon request shall survive termination or expiration of this Agreement. FAASST shall bear sole responsibility for full compliance with this Section. Entry by any individual to a restricted area 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 FAASST. 17. TERMINATION AND DEFAULT. (a) Default and Correction. 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 11 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. (b) Termination for Breach. Notwithstanding the foregoing, if FAASST commits a breach of any term of this contract, City may terminate this Agreement upon thirty (30) days' prior written notice to FAASST specifying the breach and the date of termination. Except for accrued rights and liabilities and those covenants which survive termination hereunder, upon such termination each party shall be released from all future duties and obligations hereunder. Material breaches shall include: (c) Termination Without Cause. Notwithstanding the foregoing, either party may terminate this agreement without cause by providing 60 days written notice to the other party. No premature termination of this Agreement shall affect any right of either party accruing prior to such termination, whether such right is conferred by the terms of this Agreement or arises under general principles of law. 18. NOTICE. Any notice required or permitted to be given hereunder shall be in writing and delivered personally or by certified mail, postage prepaid, as follows: (a) If to City, Director of Parks and Recreation, City of Pueblo, 800 Goodnight Ave., Pueblo, Colorado 81005; and City Manager, City of Pueblo, 200 South Main Street, Pueblo, Colorado, 81003. (b) If to FAASST: FAASST Motorsports, Inc., 4164 Austin Bluffs Parkway, #219, Colorado Springs, Colorado 80918. 19. STATE - IMPOSED MANDATES PROHIBITING ILLEGAL ALIENS FROM PERFORMING. WORK. (a) At or prior to the time for execution of this Agreement FAASST shall submit to the Purchasing Agent of City its certification that it does not knowingly employ or contract with an illegal alien who will perform work under this Agreement and that FAASST will participate in either the "E- Verify Program" created in Public Law 208, 104 Congress, as amended and expanded in Public Law 156, 108 Congress, as amended, that is administered by the United States Department of Homeland Security or the "Department Program" established pursuant to §8- 17.5- 102(5)(c) C.R.S. that is administered by the Colorado Department of Labor and Employment in order to'confirm the employment eligibility of all employees who are newly hired for employment to perform work under this Agreement. (b) FAASST shall not: (1) Knowingly employ or contract with an illegal alien to perform work under this Agreement; 12 (2) Enter into an Agreement with a subcontractor that fails to certify to FAASST that the subcontractor shall not knowingly employ or Agreement with an illegal alien to perform work under this Agreement. (c) The following state - imposed requirements apply to this Agreement: (1) FAASST shall confirm the employment eligibility of all employees who are newly hired for employment to perform work under this Agreement through participation in either the E- Verify Program or Department Program. (2) FAASST is prohibited from using either the E- Verify Program or Department Program procedures to undertake pre - employment screening of job applicants while this Agreement is being performed. (3) If FAASST obtains actual knowledge that a subcontrator performing work under this Agreement knowingly employs or contracts with an illegal alien, FAASST shall: A. Notify the subcontractor and the City's Purchasing Agent within three (3) days that FAASST has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and B. Terminate the subcontract with the subcontractor if within three (3) days of receiving the notice required pursuant to subparagraph (c)(III)A. above the subcontractor does not stop employing or contracting with the illegal alien; except that FAASST shall not terminate the Agreement with the subcontractor if, during such three (3) days, the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. (4) FAASST is required to comply with any reasonable request by 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 authority under §8- 17.5- 102(5), C.R.S. (d) Violation of this Section by FAASST shall constitute a breach of Agreement and grounds for termination. In the event of such termination, FAASST shall be liable for City's actual and consequential damages. (e) As used in this Section, the term "subcontractor" shall mean any subcontractor of FAASST rendering services within the scope of this Agreement. 20. 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 Agreement. 13 (b) 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 not caused by a breach of this Agreement, 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) :' inding 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. (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 Agreement. (e) Integrations, 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. (f) 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. (g) Waiver of Breach. A waiver by any party to this Agreement or 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. (h) 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. (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 unpaid utilities, rent, damages, janitorial fees, costs, or other sums due under this Agreement, to enforce any provision of this Agreement, to recover damages for FAASST's breach of this Agreement, or to seek specific performance of this Agreement, the prevailing party 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. 14 (j) No Multi -year Fiscal Obligation on City. This Agreement is expressly made subject to the limitations of the Colorado Constitution. Nothing herein shall constitute, nor deemed to constitute, the creation of a debt or multi -year fiscal obligation or an obligation of future appropriations by the City Council of Pueblo, contrary to Article X, § 20 Colorado Constitution or any other constitutional, statutory or charter debt limitation. Notwithstanding any other provision of this Agreement, with respect to any financial obligation of the City which may arise under this. Agreement in any fiscal year after 2013, in the event the budget or other means of appropriations for any such year fails to provide funds in sufficient amounts to discharge such obligation, such failure shall not constitute a default or breach of this Agreement, including any sub - agreement, attachment, schedule, or exhibit thereto, by the City. (k) Certain Provisions Survive Expiration and Termination. The provisions of this Agreement pertaining to insurance, releases, 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. (1) Governing Law and Venue. This Agreement shall be governed by the laws of the State of Colorado. Venue for any action arising under this Agreement or for the enforcement of this Agreement shall be in a state court with jurisdiction located in Pueblo County, Colorado. (m) Assignment. This Agreement shall not be assigned by FAASST without the prior written consent of the City, which consent may be granted, denied, or conditioned in City's sole and absolute discretion. IN WITNESS WHEREOF, the Parties hereto have executed and delivered on this 11 day of PEI ARc. N 2013. FAASST MOTORSPORTS, INC. CITY OF PU Q _ • • 'AL CO • TION By: President City Council Print Name: 3 L-&D 1 P14-45s ATTEST: City erk APPROVED AS TO FORM: City Attorney 15 Map of Leased Premises (Exhibit A) i .x �, c mat x a r a I F {Wxay t ai t r'� aR a s ' 3 " - Ysr -- ' "w1 ;p r4 4 ,�+. � � ' �rc "a•' nP4, � Sn.. s x &G • „ w^+ ' ,§ k .; 'K a'S .n. u, a� ?' � `�. � t" ✓ s z � �' �' 9 ti .� r + sw�s t a ;k ab ",..r �.' .�' +': w1"s 'fits r a5f . t� 3sy 'taY -A;` '�` c +5 t •pw, 4` " x �: } �# .r'� aiti � ,,�, *"',�, 'r ' F'�y } i !.k �. �^�}' "T ... a"d � n� { „ + b+ ,^ ^ y, 'fr Y &� c� ,yyqq �y bb ! s v �. € xx x�° C Tsj J-}. �. 9 � Y ✓' R. L f''+.{ h SaV'H 6 M I } • • q � tt y ry r r a e } x i . • � t +f s i t r 4.1'tx e `a , .r x � i "R 3'3?. F + '', t,a+M # j $ £ �,� s S '"� - a -*�3t xr � Tv to" 3.<.''a.^fa g N,gr e*f ds t to x� w",x � �, ' y$•�Y "`�'?#y" to *t tx i.k,keu.� " t f 9 ' -r tia C �,�` , r y t y 3t 3F+ i �} %, Cp '`r< s,x+ �,���� � �,.�' � � 'r r +r ° '"sY .g8 ��� a s r -�` , .,� ��+. �� t . "� 'gig '�s v f r 3 ,,r' a x '`" .�„ ,�' `3 'i t k x • e p 'A. t r v `4 k z ; 'K "� s'9r X75 E ^�"a �'+7 " • • � ` 'Ts ° w s • oi e • " • d k+ a ra f e - °t xmsi �* ! X"^3, '27s ss ' t c a^ Ftn x"1 [ a s `=r + - ' ✓ ti 4. #s a Y • Sr o-5 (rr s c Fh �Y. a �, �` ` h xc g�`''k �" is r ` .�"'.°N . r # F n p s+`'a a + s a �d'{ �� k:� a k �` , a �:.# t °• }• N t i ndu @ 4f i r " S xce Sisk x" � S , x s M I . � � 4 d � `4�j ,�: }, � t x � ,� XA �� '" s '� 7 »sn`11 }� ��`� k m d m 3�G �y�� c4• �'� S t s 4 "S' x v '.w ! �k �Sh A ''�.* tta* �r q t y t ' ;fi t A `e � 4, ssj , - EKr 4 f- >P'* Si F e 1 M ; i h ,,.,, a9 X 5t k . „ Fi ' y �,>4 e X 1 � x s• y a n� , ,9 `""` ga S n s a "i +' ' r' ys . a xa xg"` • 1"' '.. •' a a } b 4 ry 3 t di`� ;t' r s w t `• a � �" � "33u - } #�` w k`"k a 3tx � b ^ • ¢ .} P • • __ " ,•i •, a �y- ; , "'! §', Y . J h- , tt` f 4? k ;.}y Ca +`' m� ' 4s «u` • "' 'r xg3y � ' $ �.T% "'r "r* "a#• y � . � "€} �" `� a t '� a"ss '?&�'� # " � -s, .� y ..x- � ` �."'",�, 4 ,��� '�� ,ro f a P u 3'- rr. ° a� *� s„• �,''ri, �' : `} �" 2;,.:^,y�n,��"2 � Y�!�`t `�� �'V .EE'1X: . Exhibit B "Concession and Office Equipment" Description Model /Name Serial # Model # Concessions Upright Freezer Frigidaire City # 31457 N A Griddle / Range Vulcan N A N A 3 Bay Sink NA N A N A Display Cooler TRUE N A GDM -23 Stainless Prep Table N A N A N A Freezer Deep Frigidaire City # 31458 N A Refrigerator 2 dr. TRUE N A N A Freezer, 4 Comp. Traulsen N A 302 Storage Rack - 2 N A N A N A Water Heater N A N A N A Extra Heater Tank N A N A N A Wall Hand Sink N A N A N A Chest Freezer Holiday N A N A Mini Refrigerator Delfield N A N A Deep Fryer Dean City # 31466 N A Microwave Oven Panasonic N A N A Pressure Water Tank (blue) NA NA N A 6 Metal Carts NA NA N A Office / Mobile Home Mini Refrigerator Kenmore 11069446 5649143110 Clothes Washer Lady Kenmore N A N A Clothes Dryer Kenmore N A N A Electric Stove Whirlpool N A N A 4 Drawer F/P File C Fire King / Turtle N A N A 2 Black File Cabinets NA N A N A 1 Desk (blue) NA N A N A Tower Freezer /Refrig. Whirlpool N A N A Fire Extinguishers Amount / 13 ea. N A N A Large Floor Jack N A N A N A 2Torch NA NA NA 1 Blower N A N A N A Christmas Tree Light N A N A N A Miscellaneous Equipment - Dial in Board; 4 Down Track Sensors; 8 Centerline Cones; 2 Outside Boxes; and 1 box of Starting Line Equip. Equipment for Tower at Citv Parkin Mike Sexton's Office and Basement Back up Power Strips tea. APC Schneider N A BE550G Comulink - Hard Drive Tower Dell MMP 1LAKN Hard Drive N A 90G15500841 QVT70 Comulink Controller Box N A N A N A Exhibit B PMP vehicle # Year Description "Leased Equipment" 226020 2011 ML 085 Kubota Tractor Ser #72593 & Lay Down Equipment 226019 2012 Laymor Sweepmaster Model SM300 Ser #34013 226028 1998 Ford f150 (Vin #1FTZF1761WNA91071 Lic# 0039A32) - teal in color (not leased but needs to be maintained per 10i in the agreement) "Routine Equipment" 226014 1984 743 BOBCAT 226044 1999 JOHN DEERE 544 Front End Loader 226080 1980 1980 International Water Truck 226902 1999 1999 HMD Flatbed Trailer PMI MISC FUEL - 50 gal. drums 1 ea Brush Hog 3 point 1 ea Box Scraper 3 point Box Drag 3 Point 1 ea Light Towers Trailer Mounted 1 ea Light Towers Trailer Mounted 1 ea Polaris ALL Terrain Vehicle - 600 Sportsman (green) 1 ea Polaris ALL Terrain Vehicle - 330 (yellow) 226010 1961 BROOM A 226011 1961 BROOM B 226012 1976 F966 International Tractor Turbo 226013 1971 F966 International Tractor 3 tanks 500 Gallon Fuel Tanks 1 ea Harrow Plow - implement 1 ea Track Sprayer (model # JD ACI - 5GH) 1 ea 30 Gal. Air Compressor - Kobalt "Scrap Equipment" 226026 1960 Tow Behind Sweeper 1 ea Disk Plow - implement 1 ea Harrow Plow - implement 226008 1988 TYMCO SWEEPER 226015 1973 C60 WATER TRUCK / Bad Engine 1961 Allis Chalmers Road grader / Many problems Exhibit C FASST Motorsports Inc. Proposed Income - Chart of Accounts A. Income 1. Concessions $ 2. Drag Strip Income $ ET /PTS Income $ Juniors $ Pro $ Sportsman $ Super Pro $ Total ET / PTS Income 1 $ Exclusive Track Rentals - Drag Strip $ Friday Night Drags $ Pit Spot Sales $ Spectator Income $ 'Total Drag Strip Income 1 $ 3. Off Road Income $ 4. Road Course Income $ Car Club Rentals $ Exclusive Track Rentals - Road Course $ Extra Personnel $ Pavilion Tent $ Race Group Rentals $ Road Course Lap Full Day $ Road Course Lap Half Day $ 'Total Road Course Income ' $ 5. Sponsorships $ 'Total Income I $ B. Cost of Goods 6. Cost of Goods Sold (Event Costs) Ambulance $ Drag Strip Payroll $ Equipment Rental $ Insurance - Event Gen Liability $ Payouts - Drag $ Road Course Payroll $ Track Bite Concentrate $ 'Total Cost of Goods Sold ' $ 'Gross Profit ' $ (Definition if "Profit" in agreement) Exhibit D List of Items and /or Repairs by the City The following list of items and /or repairs that will be completed by the City within 90 day of the date on the agreement. 1. Rhino patch at both ends of the drag strip and on the frontage road; 2. Calibrate, tune and test timing equipment; 3. Repair light that is not working on tower at south end of track; 4. Patch and repair entrance road; 5. Install batteries in both the 1976 and 1971 International tractors; 6. Install batteries in Brooms A & B; 7. Install battery in John Deere 544 front end loader; 8. Install a alternator in the 1971 International tractor; 9. Service griddle and range in the concessions; 10. Test the washer / dryer and range in the office — repair as needed; and 11.AIlow FAASST to use the "RACE" phone number. Exhibit E PROPOSAL RESPONSE COVER SHEET Visimssmosio gy m,... .,1 Project No. 12 -088 Operation, Management, and Promotion Of Racing Facility at Pueblo Motorsports Park The undersigned, having carefully read and considered the Request for Proposals for the above referenced project, does hereby offer to perform such services in the manner described and subject to the terms and conditions set forth in the attached RFP. Services will be performed at the rates set forth in submitted Proposal or as negotiated by all involved parties. In submitting this Proposal, it is understood that the City of Pueblo reserves the right to reject any and all Proposals, and to waive any informalities in Proposals as submitted. Proposer acknowledges that his /her firm is qualified in this area of work and has experienced personnel able to provide the required services. The City may request information substantiating the indicated requirements. Failure to provide this information may result in a vendor's Proposal being declared non - responsive. It is the Proposer's responsibility to verify if any addenda were issued prior to submission of the bid. Proposer acknowledges and accepts that all components of and responses to this RFP will be included and become a part of the final contract by reference. The undersigned further states that this Proposal is made in good faith and is not founded on, or in consequence of, any collusion, agreement or understanding between the Proposer, the firm, or any other interested party. (All contact information must be filled out and form submitted with proposal) Proposer (full lawful name of firm): Name of Person with Authority to Bind Proposer: Title of Person with Authority to Bind Proposer: Signature: Address (Office & P.O. Box): Office Phone Cell Phone Fax Email Exhibit E GENERAL INFORMATION Project No. 12 -088 Operation, Management, and Promotion of the Racing Facility at Pueblo Motorsports Park 1. Introduction The City of Pueblo, Colorado ( "City ") is soliciting qualification and price -based proposals from interested parties to operate, manage, and promote drag racing and road racing events located within Pueblo Motorsports Park (PMP) in accordance with all the terms and conditions herein. The City is seeking qualified Proposers with a vision for the operation, management, and promotion of the racing facility. Drag racing is envisioned to be a significant part of the Pueblo Motorsports Park venue. The City is seeking a Proposer who will manage, operate, and promote drag racing and road racing events for five (5) years with a City option of three (3) one (1) year extensions. Upon termination of the Agreement, any improvements of a permanent nature will become property of the City. Proposals will be received up to the hour of 2:00 p.m. on Friday, January 11, 2013, at the City's Purchasing Office, 719 - 553 - 2350, 230 south Mechanic Street, Pueblo, CO. 81003. PRE - PROPOSAL SITE VISIT The City will conduct a mandatory site visit of the drag racing facility at 10:00 a.m. on Friday January 4, 2013. The meeting will begin at the Parks and Recreation Administration office located in City Park at 800 Goodnight Avenue, Pueblo, CO. 81005. Proposers who do not attend the mandatory site visit will not be considered. History of Events Drag Racing - The Pueblo City Council approved the building of Pueblo Motorsports Park (PMP) on Nov. 25, 1974. In September 1975, PMP held its first drag race event, a Winston Drag Series which is equal to the Lucas Oil Drag Race Series of today. The drag strip has been host to legendary racers such as Don Purdhomme, Reher - Morrison, Warren Johnson, Mike Troxel, Vern Moats, and Tommy Johnson Jr. Even Matt and Andrew Hines of Screaming Eagle Racing have tested their Pro Stock Motorcycles at PMP. Friday Night Drags was established in 1978. The Drag Strip is NHRA sanctioned and has dibs on a National Event in 2013. Bill Dickey was the first manager of the facility and an original board member. Bill was instrumental in establishing Pueblo Motorsports Park and the entrance road is named in his honor. In 2011 the City provided funding to resurface the road course and build a concrete drag strip. Road Racing - The road course was expanded to 2.2 miles in the late 1980s and hosts numerous events each season. The road course has hosted the One Lap of America with Brock Yates and other famous road racers have come to practice for the Denver Grand Prix and the Pikes Peak Hill Climb. The Road Course races have consistently shown a profit at the Motorsports Park and have a good following. Open Lapping — All drivers must meet requirements before getting on the track. FAAST Performance Driving School www.faasst.com ran Open Lapping in 2012. Proposer has option to provide this service and create a new revenue source Page 2 of 25 Exhibit E Adjacent Properties - The motocross track was added in the late 1970s. There are no organized motocross events on the property at this time. The dirt oval track was built in the late 1980s but was eventually closed. Plans are in the works to put out an RFO for dirt oval track in the near future. Fees/Rates Open lapping track fees (2012) $140 (No half day passes, payable in cash or check at the gate. Customers were allowed to pre - register at www.faasst.com as well. Mandatory safety class (2012) $249 (FAAST Performance Driving School) Spectator fees (2012) $7 General Admission, $4 Ages 6 -12, $5 Active Military, Free Ages 5 -Under Special Events (2012) $10 General Admission, $6 Ages 6 -12, $5 Active Military, Free Ages 5 -Under Tech Cards (2012) $20 FND — Time Only & $25 FND — H.S. Series $25 Buy Back/Consolation Race all classes $30 FND — Trophy Class $40 Jr. Dragster Series $45 E.T. Series — Sportsman $50 King Street & Time only on Points Event days $55 E.T. Series - Super Pro& $55 E.T. Series — Pro Road Course Club Rental Rate (2012) $2,000 per day (Shelby Club, Porsche Club) Road Course Race Event Rate (2012) $3,000 per day (NASA, RMVR, Chump Cars, MRA, SCCA -CDR) Police and Sheriff Training — Free Out of County law enforcement training @ $200 per day Pit Parking Passes Pit parking passes were not sold in 2012. In 2011 Pit Parking passes were sold for $50 per spot. There are approximately 200 spaces. A quick survey showed racers willing to pay $100 per spot and more for premium spots. This could create an additional $20,000 - $25,000 in revenue. Budget Summary Review 2011 vs. 2012 Gasoline sales were up $7,267 in 2012 Facility Rentals went down by over $32,000. The cause was the cancellation of the contract Page 3 of 25 Exhibit E with NEK Advanced Securities group that paid the City $60,000 per year plus another $12,000 per year in rental of the office and fenced compound. Road Course rentals are a good option for rental income. Concession revenue went up $12,420, but expenses for that line item were up $9,407. The track was considering renting out spaces to multiple vendors to reduce personnel and inventory expenses. Alcohol was not sold due to licensing issues, but could be a good option for revenue. Spectator count was down. General admission charges were low. More money was spent on hiring a marketing person in 2012, yet revenues were down. Open Lapping revenue was up. PMP has been working with FAASST Performance and getting a percentage of the gate and no revenue above $3,000 per day. If the Proposer can get certified they would realize a substantial increase in road course open lapping rental income. Merchandising showed a minimal profit. This item may be best left at a "0" budget in 2013. Administration costs went up as the Supervisor at PMP went to full -time status. A portion of the administration costs went to the Contracts Managers salary. Drag racing temporary staff costs went up due to increasing pay for temporary employees, a fireman and a tow truck operator. The fireman and tow truck operator were paid $12.42 per hour. Hiring the High Octane Hottie's models increased payroll. Uniforms were purchased for employees. A professional appearance should be considered. Employee Benefits were up due to making the supervisor full -time and an overall increase in charges. Administrative Services was a cost were for the Enterprise to receive assistance from the legal department, finance, personnel, etc. Rental charges are mainly for renting port -a -pots and lighting at the end of the track. Insurance went up but may be less for Proposer. Operating Supplies went up significantly. Most of it was due to facility improvements. Approximately $30,000 per year was paid in cash purses for racers. Conclusion, Savings can be realized due reducing personnel costs and reducing or eliminating benefits. Cutting the marketing person, the High Octane Hottie's and the Cities administrative oversight expense will reduce the bottom line. An alternative to paying race purses should be considered as that came to $30,000. The City spent a large sum of money bringing the facility up to standards. Many of those expenses will not need to be made again in the near future. Revenue can be increased via better marketing, managing open lapping independently, renting the track to more groups, selling alcohol and renting vs. running concessions. Renting out the pit spaces should be a good revenue source. The Proposer can manage races with less staff and utilize volunteers. Proposer can run races in a shorter period of time and reduce personnel expenses. Page 4 of 25 Exhibit E 2011Revenue Actual Amt. 2012 Revenue YTD Amt. Gasoline Sales $4,162 Gasoline Sales $11,429 Facility Rentals $82,820 Facility Rentals $50,529 Concessions $2,681 Concessions $15,101 Registrations Tech Cards $75,192 Registrations - Tech Cards $82,151 Spectator $50,574 Spectator $36,819 Open Lapping $2,100 Open Lapping $8,404 Drag Racing $13,272 Drag Racing $198 Merchandising $0 Merchandising $881 Advertising /Sponsorships $0 Advertising /Sponsorships $8,600 Total $230,801 Total $214,112 202;1 EttpensesnActual Ai t 2012xExpiense0TD Amt Admin $71,857 Admin $98,432 Drag Race Seasonal /Temp $61,220 Drag Race Seasonal /Temp $72,999 Maintenance Staff /Seasonal $104,796 Maintenance Staff /Seasonal $97,285 Marketing Staff $0 Marketing Staff $28,344 Benefits / Admin/Temps $56,864 Benefits Admin/Temps $76,712 Uniform Purchase /Replacement $0 Uniform Purchase /Replacement $2,515 Uniform Cleaning $0 Uniform Cleaning $709 Professional Services $4,523 Professional Services $25,478 Contract Services $63,525 Contract Services $21,015 Admin Services $17,519 Admin Services $16,643 Utilities $11,017 Utilities $14,247 Fleet Maintenance Fuel $8,838 Fleet Maintenance Fuel $11,486 Repair and Maintenance 16,186 Repair and Maintenance $14,669 Vehicle Repair /Maintenance $18,432 Vehicle Repair /Maintenance $7,274 Rentals $34,785 Rentals $30,339 Licenses, Permits, Fees $513 Licenses, Permits, Fees $2,692 Other Charges $1,651 Other Charges $5,297 Insurance• $15,207 Insurance $26,602 Postage $7 Postage $363 Telephone $2,572 Telephone $7,896 Advertising $15,994 Advertising $14,555 Printing and Binding $1,089 Printing and Binding $3,139 Travel & Training $2,722 Travel & Training $3,488 Office Supplies $1,666 Office Supplies $1,175 Operating Supplies $38,890 Operating Supplies $63,935 Repair /Maintenance Supplies $20,769 Repair /Maintenance Supplies $19,320 Motorsports Purses Paid $31,870 Motorsports Purses Paid $29,648 Concession Supplies $8,521 Concession Supplies $17,928 Capital Machinery /Equipment $11,304 Capital Machinery /Equipment $25,925 Total $624;027 Total $740310 Page 5 of 25 Exhibit E Schedule 2013 v !! �, �� 13 Friday Night Drags ��l • aa r� p �� ` 7 Road Course Events ", � � OA .rNIAIRCAWS d "':LL� 6 ET Drag Races �'a'� �' PUEBLO MOTORSPORTS PARK ' PUEBLO MOTORSPORTS PARK 1 NHRA National Event www.pucblomotorsportspark.corn www.pueblomotorsportspa rk.com March 2013 May 2013 June 2013 3/19 — Police Training 5/04 — NASA /Road Race 6/01 — RMVR/Road Race 3/26 — Police Training 5/05 — NASA /Road Race 6/07 — Friday Night Drags #1 5/11 — Shelby American/Road Race 6/08 — Drag Racing -ET, Jrs., April 2013 5/18 — Porsche Club/ USPS 4/10 — Police Training 5/19 — Porsche Club/ 6/14 — Friday Night Drags #2 4/13 - Police Training 5/29 — Facility Use /Pueblo Police 6/15 — NASA /Road Race 4/17 - Police Training 5/31 — RMVR Test /Tune 8 -2 p.m. 6/16 — NASA /Road Race 4/20 — Test and Tune 5/31 — Drag Racing — Opening 6/21 - Friday Night Drags #3 4/23 - Police Training Night 6/22 - Drag Racing -ET, Jrs., 4/26 — Chump Cars /Road Race 6/25 - Police Training 4/27 — Chump Cars /Road Race 6/28 - Friday Night Drags #4 4/28 — Chump Cars /Road Race 6/29 — MRA /Road Race 6/30 - MRA /Road Race July 2013 August September 7/05 - Friday Night Drags #5 8/02 - Friday Night Drags #9 9/07 — Southern CO. College 7/06 — Drag`Racing -ET, Time 8/09 - Friday Night Drags #10 Championships Only 8/10 - Drag Racing -ET, Time Only 9/14 — Time Only Racing 7/12 - Friday Night Drags #6 8/16 - Friday Night Drags #11 9/21 — BMW Club 7/13 —High Altitude Nationals 8/23 - Friday Night Drags #12 9/28 — King Street — Factory 7/14 - Drag Racing -ET, Time 8/30 — FND #13 = Southern CO. Stock Championships Only, Jrs. H.S. Drag Championships.(Pueblo, 7/19 - Friday Night Drags #7 CO. Springs, Canyon City, 7/26 - Friday Night Drags #8 Trinidad, Lamar, CO. City) 7/27 - Drag Racing -ET, Jrs., 8/31 - Military Championships USPS €' m i' 'a w n r r �; October ,. S ^ ,� � ?+ik�#!P K*s `3- , r F f '� s. x b 'r , 10/11 — SCCA /Road Race � -, � � 9, � A ` , 10/12 - SCCA /Road Race,q �, ,a 10/13 SCCA /Road Race � �� O � �, ;' ° a -ry e " ,,, x : , . '. k . , u r , � , , ' , I x . At ,-= ' ' x :7 , ; t fi.. # . T I1�JI 'It ti , K , � a da 4 ',33 � ' � � ' 1 ' , il: ' Page 6 of 25 Exhibit E 2. BACKGROUND / OBJECTIVE: In 2009, the City of Pueblo established the Honor Farm Enterprise ( "HFE ") responsible for the operation, management, and improvement of the 2,373 acre Honor Farm Property. The HFE, by City Ordinance, is required to be operated and managed without subsidy from the City's General Fund. The Pueblo Motorsports Park contains approximately 233 acres of motorsports areas and facilities within the Honor Farm Property. The objective of this Request for Proposals (RFP) is to select a proposal from a qualified company or organization for the operation, management, and promotion of the Racing Facility at Pueblo Motorsports Park. Proposals should consider the integration of Drag and Road Racing events within the Racing Facility and with the other motorsports facilities at the park. The Proposer will be responsible for accepting or rejecting the agreement with the Southern Colorado Quarter Midget Association that has historically used the facility for free. Renting out the quarter midget track to go carts could be an alternative revenue source. The Proposer will be responsible for scheduling of the facility and will need to schedule midget racing in a manner that meets the needs of both entities. All scheduling of events must be approved and coordinated through the Parks and Recreation Director or Designee. The Parks Division has scheduled races for 2013. The schedule and agreements with the groups renting the track must be honored, unless Proposer can agree to alternative dates with road race clubs. The races were scheduled based on historic dates as well as consideration of the Bandimere Speedway schedule. When scheduling events at PMP in future years, the Proposer needs to consider the Bandimere, Hi- Plains, and Pikes Peak Raceway schedules to lessen the impact of losing potential racers. Proposer must continue to maintain NHRA sanctioning. A national NHRA event is penciled in for 2013. Proposer must determine if this is in the tracks best interest. The event is tentatively set for July 13, 2013, the weekend before Bandimere Speedway hosts the "Mile High Nationals." It was difficult to get consideration so if this event is cancelled or postponed the relationship with NHRA that was developed must continue to be a high priority. 3. SCOPE OF SERVICES The City of Pueblo is seeking Proposals from qualified Proposers to perform the following Scope of Services. This Scope of Services includes, but is not specifically limited to, the major project phases as outlined below: a. Operate and manage a guaranteed minimum number of racing events on a parcel of property commonly referred to as the Racing Facility located within Pueblo Motorsports Park for a period of five years as follows: ® Six (6) road racing events (motor cycle or auto) o Twelve (12) consecutive Friday Night Drag events (June, July, August) o Four (4) Drag racing points events o Provide option for Rally Cross Racing to west of PMP fence b. Promote drag racing and road racing events at the Racing Facility at Proposer's expense for a period of five years. Page 7 of 25 Exhibit E 4. SITE FACTS The Racing Facility is located at the northeast corner of the City's Honor Farm Property (Exhibits A -1 and A -2). It is described as follows: Property: 3733 North Pueblo Boulevard, Pueblo, Colorado 81008 Legal Description: The SW /4 of Section 16, T20 S, R65W and the N of the NW /4 of Section 21, T20 S, R65W of the 6 P.M., containing 233 acres+/ - Size of Parcel: Approximately 233 acres Existing Structures: Timing tower, concession building with upstairs meeting room, paddock area, staging area, shed, and restroom /shower facilities Surrounding Facilities: Motocross track, a dirt oval track, Sky Corral (model aviation group), several private in- holdings and open spaces that have non - sanctioned OHV usage. Environment: The City of Pueblo is not aware of any substandard geotechnical conditions or environmental contamination on the site. 5. PROPOSAL REQUIREMENTS Proposal should include: Professional qualifications and Experience a) The Proposer's name, address, phone, and contact person with authority to bind the Proposer. b) The Proposer's racing management qualifications, experience at similar facilities, number of year's experience, and profitability levels. c) Proposer must be able to submit satisfactory evidence that they have the necessary financial resources to operate, manage, and promote the Racing Facility. d) List Performance Potential of the Proposer. e) The Proposer, in submitting the Proposal, shall agree and so state in the Proposal that no person acting for or employed by the City has a direct or indirect financial interest in the Proposal or in any portion of the profits which may be derived therefrom. f) The Proposer shall provide three professional references with phone numbers. g) Proposer shall provide an organizational chart. h) Proposer shall provide resume's for all key employees and their areas of responsibility. Annual rate of payment or other proposed compensation to City including site improvements Page 8 of 25 Exhibit E a) The proposal shall include a fee, (daily, monthly, or bi- annual) to be paid by the Proposer as compensation to the City for the use of the Racing Facility, concessions, sponsorships, and any other revenue generated by the Proposer. b) Proposed site improvements may be used as a means of payment. If this is Proposers intention, a detailed list of the proposed improvements shall be listed in order of priority with agreed upon dates /year that the improvements shall take place. Note: This is a five (5) year agreement with a City option of three (3) one (1) year extensions. c) If site improvements are to be used as a means of payment, Proposer shall list the estimated value of improvements based on industry standards or on bids from industry professionals. Scope of Proposal /Overall Presentation /Business plan a) Proposed Scope of Work: A narrative description of the proposed operation, management, and promotion of the Racing Facility at Pueblo Motorsports Park during the term of the Agreement and in accordance with this request including an annual proposed program /schedule for operation. b) The Proposer, in submitting the Proposal, shall agree and so state in the Proposal that Proposer has a maintenance plan that includes annual maintenance of the drag racing strip and road course as well as a plan to repair or replace facilities damaged due to usage by Proposer, or park amenities such as the scoreboard, timing equipment/computers, drag racing tree, sound system, bleachers, safety nets, and any equipment or furniture loaned to the Proposer by City. c) Proposer shall provide an inventory of all equipment Proposer will provide to operate and maintain the PMP facilities, infrastructure, drag strip, and race course. d) Proposer shall agree in writing to provide the guaranteed minimum number of events to be held annually as follows and include a proposal for compensating the City for failure to comply with the proposed minimum number of events: ® Six (6) motorcycle or road racing events ® Twelve consecutive (12) Friday Night Drag events (June, July, August) ® Four (4) Drag racing points events ® Provide option for Rally Cross Racing to west of PMP fence e) Proposer shall include a detailed list of the proposed events Proposer plans to host and /or any scholarship programs Proposer plans to implement. f) Describe the type of customer service Proposer will provide, including concessions, alcohol sales, merchandise sales, daycare, marketing, etc. g) The proposal shall include a fee schedule for racers, spectators, and any other services. h) Proposer Responsibilities: Proposer shall include a list of any activities that are necessary for the operation and management of the Racing Facility and that are the responsibility of the Proposer to perform. Responsibilities of Proposer shall include, but are not specifically limited to, the following: ® Enter into agreement with City ® Schedule events in a timely manner and provide schedule to City in advance of events o Sign track rental agreements and comply with deposit requirements ® Provide all manpower required to prepare for and operate events • Provide security personnel during events ® Pay for all utilities associated with running the racing facility Page 9 of 25 Exhibit E • Pay for all racing chemicals needed to prepare track for racing • Manage or sub - contract all racing fuel to be sold on the property, following all regulatory guidelines • Provide onsite certified technical inspector to inspect race vehicles OR ensure entities that rent the drag strip or road course provide a certified technical inspector • Develop and implement marketing program to promote racing events • Solicit partners /sponsors for racing events • Publish event schedules • Maintain autonomous web site that can be linked to the City's web site • Purchase and maintain approved insurance for all racing events • Ensure drag strip is NHRA sanctioned • Acquire all necessary licensing to operate the race facility and concessions • Notify City representatives immediately of accidents or incidents that occur • Purchase, maintain, and provide certified fire extinguishers for all events and pay for costs associated with refilling and recertifying extinguishers • Provide Material Safety Data Sheets (MSDS) for all chemicals and products stored on site by Proposer • Provide event winner rewards (optional) • Provide ambulance services for all events at facility as necessary OR ensure entities that rent the drag strip or road course provide ambulance services • Provide towing services for all racing events at facility • Provide accounting policies and procedures • Purchase and provide Track -Bite Traction Concentrate that is designed to create adhesion between rubber, asphalt, and racing surface for racing events • Prepare seasonal maintenance plan for track and facilities • Budget management to include revenue projections, expenses, and a percentage of budget spent at monthly intervals • Provide, maintain, and repair timing equipment and computers in race tower • Provide sound system for announcing events • Make any necessary changes to concession facility at Proposer's expense and with the approval of the City and County Health Department • Honor 2013 Gold Cards given as year -end racing awards to 2012 race class winners • Work with Southern Colorado Quarter Midget Association and ensure both entities communicate on scheduling to reduce the possibility of conflict and /or accidents • Honor all road races scheduled by City for 2013 racing season or get agreement from user group to change dates. • Honor Friday Night Drag School Passes handed out for 2013 season (200 passes to elementary and junior high students to increase interest in the sport) • Honor historic use of track by City of Pueblo Police Dept. (Weekdays only - Drifting or ramming vehicles is only allowed in staging area) • Provide option for Rally Cross racing utilizing a portion of property west of PMP. Permission will be needed from City to utilize areas outside of PMP fence. This option is not inclusive to Proposer as other user groups on Honor Farm Properties also have the option of renting out the same area Page 10 of 25 Exhibit E • Water truck must be used prior to and during Rally Cross events or any other event that causes dust • Maintain all City equipment loaned to Proposer and schedule maintenance with City Fleet Services based on Fleet guidelines. Pay for any and all repairs, maintenance and damages to equipment loaned to Proposer. General maintenance will be paid on an hourly rate plus material • Work with City to utilize warranty on equipment loan for any items that are damaged and pay for any equipment repairs not covered by warranty • Attend all Honor Farm Enterprise Citizens Advisory Board meetings • Provide Open Lapping Opportunities and rates to be charged • Provide concessions • Repair facilities damaged by Proposer or Proposer's customers. Report damages to City. All major repairs must be completed by licensed contractor. • Repair race tower computers as needed • Pay for any internet and phone services needed for business operation • Maintain PMP Identity on all branding and signage i. City Responsibilities: City responsibilities that are, deemed by the City to be necessary for the Proposer's operation and management of the Racing Facility could include, but are not specifically limited to, the following: to Provide a list of policies and procedures to include the stipulation that the track will not be used for drifting events, military training, or anything without the prior approval of the City of Pueblo • Provide /loan existing equipment needed for the Race Facility track including emergency truck, rubber machine, Kubota tractor, golf carts, and sweeper for five (5) years with a City option of three (3) one (1) year extensions (See Inventory List) • Provide use of all buildings, trailers, cargo containers, sheds, booths, and garages within the fence at PMP to Proposer • Provide, via loan, a track sprayer, gas powered air compressor, air regulator, air hoses, valves for traction compound and methanol tanks, and spray nozzles • Provide, via loan, race tower computers • Provide a link to the City website • Provide a list of top performing employees who have the experience and certifications to operate rubber machine, emergency vehicle, • extractions, water truck, sweeper, track bite application and managing the starting line. 6. INDEMNITY AND INSURANCE: Proposer shall identify sources for securing the required insurance coverage and indemnification of the City according to the requirements included in this RFP. INDEMNITY The contractor and his sureties shall indemnify, defend and save harmless the City of Pueblo, its Enterprises, controlled Nonprofit Corporations, their officers, agents and employees from all suits, actions or claims of any character, name and description brought for or on account of any injuries or damage received or sustained by any person or persons or property, on account of any negligent act or fault of the Contractor, his agents or employees, in performance of said contract; or on account of the failure of the Contractor to provide necessary barricades, Page 1 1 of 25 Exhibit E warning lights or signs; and shall forthwith pay any judgment, with costs, which may be obtained against the City, its officers, agents or employees, growing out of such injury or damage. CONTRACTORS INSURANCE: The Contractor shall not commence work under this contract until he has obtained at his own expense and without cost to the City all insurance required under this paragraph and such insurance has been approved by the City Attorney, nor shall the Contractor allow any subcontractor to commence work on his subcontract until all similar insurance required of the subcontractor has been so obtained and approved. The Contractor shall maintain such insurance until the final acceptance by the City of all construction covered by the contract. a) Commercial General Liability Insurance The Contractor shall secure and maintain during the period of this contract and for such additional time as work on the project is being performed, Commercial General Liability Insurance issued to and covering the liability of the contractor with respect to all work performed by him and all his subcontractors under the contract, to be written on a Commercial General Liability policy form. This insurance shall be written in amounts not less than $600,000 for each occurrence and aggregate for personal injury including death and bodily injury and $600,000 for each occurrence and aggregate for property damage. This policy of insurance shall be endorsed naming the of Pueblo, its Enterprises, controlled Nonprofit Corporations, their officers, agents and employees as additional insured. To the extent that Contractor's work, or work under his direction, may require blasting, explosive conditions, or underground operations, the commercial general liability coverage shall contain no exclusion relative to blasting, explosion, collapse of building, or damage to underground property. The policy shall also provide coverage for contractual liability assumed by Contractor under the provisions of the Contract, and "Completed Operations and Projects Liability" coverage. The Commercial General Liability Insurance policies shall contain a waiver of subrogation. b) Comprehensive Automobile Liability Insurance The Contractor shall procure and maintain during the period of the contract and for such additional time as work on the project is being performed, Comprehensive Automobile Liability Insurance. This insurance shall be written with limits of liability for and injury to one person in any single occurrence of not less than $150,000 and for any injury to two or more persons in any single occurrence of not less than $600,000. This insurance shall include uninsured /underinsured motorist coverage and shall protect the Contractor from any and all claims arising from the use both on and off the site of the project of automobiles, trucks, tractors, backhoes and similar equipment whether owned, leased, hired or used by Contractor. The Comprehensive Automobile Liability Insurance policies shall contain a waiver of subrogation. c) Workers' Compensation Insurance The Contractor shall procure and maintain during the period of this contract and for such additional time as work on this project is being performed, Workers' Compensation Insurance, including Occupational Disease Provisions, fully complying with the provisions of the Workers' Compensation Act, as amended, of the State of Colorado. Page 12 of 25 Exhibit E Such insurance shall be obtained notwithstanding that Contractor may have no employees as defined under said Act or that Contractor 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 Contractor performing work on the project irrespective of whether such employees may be shareholders, managers, partners or owners of Contractor or exempt employees under the Act. If any class of employees engaged in hazardous work under this contract at the site of the project is not protected by the Workers' Compensation statute, the Contractor shall provide, and similarly shall cause each subcontractor to provide, special insurance for the protection of such employees not otherwise protected. Workers' compensation policy shall contain an endorsement waiving subrogation against the City. d) Any Subcontractor Performing Work for the Contractor Any subcontractor performing work for the Contractor under the contract shall provide certificates of insurance protection to the Contractor and to the City of Pueblo, Colorado, of the same type and in the same amounts as required by the Contractor. e) The Insurance Coverage The insurance coverage enumerated in the above subparagraphs constitutes the minimum requirements and said enumeration shall in no way lessen or limit the liability of the Contractor under the terms of the contract. The Contractor shall procure and maintain, at his own cost and expense, any additional kinds and amounts of insurance that, in his own judgment, may be necessary for his proper protection in the prosecution of the work. f) Certificates of Insurance Certificates of Insurance for Workers' Compensation Insurance, Commercial General Liability Insurance and Comprehensive Automobile Liability Insurance shall be filed with the City prior to the execution of the contract. Said insurance shall not thereafter be canceled, permitted to expire, or be changed without 30 days advance written notice to the City. 7. HOLD HARMLESS The Proposer shall agree to defend, indemnify, and hold the City, Honor Farm Properties and all if its agents and employees harmless from any and all claims or lawsuits that may arise from the Proposer's activities under the provisions of the development agreement that are attributable to the acts or omissions, including breach of specific contractual duties of the Proposer or the Proposer's independent contractors, agents, employees, or officers. 8. TIME FRAME /SCHEDULE: Proposals shall identify any conditions that must be met before the proposal can become a reality. Proposals shall also include a proposed schedule /program that includes the anticipated number of days of operation. 9. PROPOSAL PREPARATION AND SUBMITTAL INSTRUCTIONS: Page 13 of 25 Exhibit E a) Each Proposer must submit copies of their proposals as follows: one (1) unbound, untabbed signed original (held together by paper clip or binder clip), ten (10) bound copies, and one electronic version in Microsoft compatible or PDF format on CD or thumb drive. Proposals must be on standard 8 -1/2" x 11" paper. All supporting documentation must be on paper no larger than 11" x 17 ". b) Proposals and supporting documentation must be submitted in a sealed envelope labeled "Project 12 -088 Proposal - Operation, Management, and Promotion of Drag & Road Racing Events at Pueblo Motorsports Park." Faxed or emailed proposals will not be accepted. Proposals shall be delivered to: City of Pueblo Purchasing Office, 230 South Mechanic Street, Pueblo, Colorado 81003. It is the Proposer's responsibility to ensure that his proposal is received no later than the RFP deadline of 2:00 p.m. Friday, January 11, 2013. 10. ENVIRONMENTAL /SOIL CONDITIONS The property is provided on an "as is" "with all its faults" basis and Pueblo Motorsports Park makes no representation or warranty as to the condition or fitness of the park for any particular use or purposes. Any potential Proposer may also reasonably conduct its own environmental testing of the property by contacting the department contact person, entering into a right of entry agreement with the City, and providing the requisite insurance coverage. 11. UTILITIES It is the selected Proposer's responsibility to identify the locations of and provide for any additional installation of electricity, gas, water, sewer service, and other utilities as needed to service the site from the public mains to the Racing Facility. Proposer shall be responsible for paying for all utilities associated with running PMP. 12. WRITTEN AGREEMENT The selected Proposer shall be required to enter into an agreement with the City to operate, manage, and promote the facility. The agreement shall be negotiated with the successful Proposer and approved by all parties. The selected Proposer shall be required to comply with all applicable federal, state, and City standards, orders, and regulations. Signature on the Proposal Response Cover Sheet (first page of this RFP) shall serve as an acknowledgment that the Proposer is willing to enter into the referenced agreement with the City of Pueblo if its proposal is accepted. 13. OMISSIONS Should the City omit anything from this Request for Proposals which is necessary for a clear understanding of the work, or should it appear that various instructions are in conflict, then anyone interested in submitting a proposal shall submit a written request seeking clarification from the City of Pueblo at least seventy -two (72) hours prior to the time of the opening date stated above. 14. ACCEPTANCE /EVALUATION OF STATEMENT OF QUALIFICATIONS Page 14 of 25 Exhibit E The selection of the successful Proposer will be made by a committee comprised of: The City Manager or his assigned representative, the Director of Public Works or his assigned representative, the Public Buildings Superintendent, the City's representative from Planning and Community Development, the Director of Parks and Recreation, and a staff member plus 1 -2 members of the Honor Farm Enterprise Citizens Advisory Board. 15. CONTRACT LIMITATIONS If any agreement cannot be . negotiated between the City and the selected firm, negotiations will be terminated and either a new procurement action may be initiated or City may commence negotiations with other qualified Proposers. The Proposer has not entitlements until the time a final contract is signed and approved by City Council. 16. REJECTION OF PROPOSALS No Proposal shall be accepted from, or contract awarded to, any person, firm, or corporation that is in arrears to the City, upon any debt or contract or fees or that has defaulted, as surety or otherwise, upon any obligation to the City, or that may be deemed irresponsible or unreliable by the City. Proposers will be required to submit satisfactory evidence that they have the necessary financial resources to perform and complete the work outlined in this RFP. The City reserves the right to reject any or all proposals or parts of proposals, to negotiate modifications of proposals submitted, and to negotiate specific work elements with a Proposer into a project of lesser or greater magnitude than described in this RFP or the Proposer's reply. 17. EQUAL OPPORTUNITY The City of Pueblo is an Equal Opportunity Employer. Proposers will commit to and meet the nondiscrimination and equal employment requirements of Section 1 -8 -3, P.M.C. Minority and Woman Owned Businesses are encouraged to submit Proposals. City of Pueblo will make every effort to ensure that all Proposers are treated fairly and without discrimination throughout the solicitation, evaluation, and selection process. The procedures established herein are designed to provide all interested Proposers reasonable access to the same relevant information. 18. COST OF DEVELOPING PROPOSALS All costs related to the preparation of the Proposals and any related activities are the sole responsibility of the Proposer. The City assumes no liability for any costs incurred by Proposers throughout the entire selection process. 19. IMPROVEMENTS Subject to the prior written approval by the Parks and Recreation Director of the design, plans, specifications, and designed area in the Park therefore, Proposer may make improvements to the Racing Facility, at Proposer's expense. All improvements made by the Proposer shall be constructed, installed, maintained, and operated in compliance with all local, state, and federal laws and regulations. Proposer shall maintain the improvements in good and safe condition, appearance, and state of repair, regardless of the cause or need for Page 15 of 25 Exhibit E maintenance and repair. Upon expiration or early termination of the written agreement, Proposer shall remove the improvements from the Park, at the option of City, and in the event of such removal, Proposer shall restore the designated area as near as practicable to its original condition. City shall have no liability or responsibility in any manner for the improvements. 20. RECEIPT OF PROPOSAL AND EVALUATION PROCESS City staff members will consult and consider recommendations from the Honor Farm Enterprise Citizens Advisory Board. After consultation, the City will then evaluate and select the Proposer to provide the required services based on the completed Proposal responses, contingent upon contract award by City Council. The City selection committee will determine how the evaluation process shall be conducted and what RFP is deemed to be in the best interest of the City. The final decision will be made by the City of Pueblo. The selection process shall be based on a comparative analysis of the following: m 30% of Score - Professional qualifications and Experience • 40% of Score - Annual rate of payment or other proposed compensation to City including site improvements ® 30% of Score — Scope of Proposal /Overall Presentation/Business plan 21. DEBARMENT By submitting this Proposal, the Proposer certifies that neither they, their company, nor their principals are presently debarred, suspended, in the process of debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any federal or State of Colorado department or agency. 22. PROPOSALS OWNERSHIP / CONFIDENTIALITY All Proposals, including attachments, supplementary materials, addenda, etc. shall become the property of the City and will not be returned to the Proposer. The only documents that will be considered confidential will be financial statements or trade secrets that are specifically marked "CONFIDENTIAL" on each page. All other documents submitted to the City will be subject to the Colorado Open Records Act. Proposals that are copyrighted or marked "CONFIDENTIAL" in their entirety will be rejected and will not receive consideration for award. 23. ADDITIONAL INFORMATION For technical questions contact Steven Meier, Interim Department of Parks and Recreation Director, by e - mail at smeier @pueblo.us or by phone at 719 -553 -2790. For additional information, including Request for Proposal procedures and regulations (i.e. submission deadline, forms required, etc.), please contact: Naomi Hedden, Director of Purchasing, City of Pueblo, 230 S. Mechanic Street, Pueblo, CO 81003, or by phone at (719) 553 -2350; Fax (719) 553 -2351, or e -mail at purchasing @pueblo.us. Any changes or revisions to published RFP specifications will be through written addendum posted on the Purchasing Department web page or on the Rocky Mountain E- Purchasing website. It is entirely the prospective Proposer's responsibility to check for any addenda that Page 16 of 25 Exhibit E may be available. It is also the prospective Proposer's responsibility to email a request to Ms. Hedden no later than three days prior to the proposal receipt deadline if further clarification is needed on any subject matter within the RFP or if the Proposer has technical questions pertaining to the property. Page 17 of 25 Exhibit E Exhibit - A (Inventory List) ITEM Qty. STICKER # LOCATION Silver Prep Tables 2 Concession/VIP Portable Food Rack 2 Concession/VIP Holiday /Small Freezer Chest 1 Concession/VIP Delfield /Small Refrigerator 1 Concession/VIP True Side by Side Tall Refrigerator 1 Concession/VIP 4 Door Freezer /Traulsen 1 0302 Concession/VIP Vulcan Gas Stove /Fry Surface 1 ConcessionlVIP Deep Fryer /Dean 1 Concession/VIP Panasonic Inventor Microwave 1 31457 Concession/VIP Frigidaire /Freezer 1 Concession/VIP Frigidaire Chest Freezer Large 1 31458 Concession/VIP Six Wheel Food Cart 6 Concession/VIP Wooden Desk 2 pieces PMP Office Wooden Desk/Heavy — (light blue) 1 PMP Office Black Chair 1 PMP Office ' Tan Metal Shelving Units (3- shelf) 2 PMP Office Plastic Mat 1 PMP Office Box of e-blank Tech Cards 1 PMP Office Trash Can 1 PMP Office Wall Mounted White Board 1 PMP Office Whirlpool Electric Range 1 PMP Office Kenmore Washer /Dryer 1 each 80 Series PMP Office 4 drawer File Cabinet (tan) 2 PMP Office True /Silver Freezer 1 Maint. Yard Kubota Tractor and Sweepster #226 -020 1 Model #1085 Maint. Yard International, Tractor 966 1 226013 Maint. Yard International Tractor 966 1 226012 Maint. Yard Sweeper 1 226 -010 Maint. Yard Sweeper 1 226 -011 Maint, Yard John Deer 544 B Loader 1 Maint. Yard John Deer 990 Mower 1 221 -842 Maint. Yard Schaben Industrial 1 Maint. Yard 35 Gallon Tank Sprayer Grater- Allis Chamber 1961 1 M1003 -1350 Old Sweeper Ford Diesel 1 JVAD 2039 Maint. Yard Old Water Truck Chevy C -60 1 226 -015 Maint. Yard Light Trailer /Coleman Engineer 2 2- 5455- 30/2- 5455 -29 Maint. Yard 12' Trailer 1 226902 Maint. Yard Trailer/White Cargo 1 389V12 Maint. Yard Track Timer /Scoreboard 1 On Track Red- Tiller Attachment /Howard Rotator 1 Maint, Yard Motorized Sweeper 1 226026 Maint, Yard Page 18 of 25 Exhibit E ITEM Qty. STICKER # LOCATION Old Camper Trailer /Red Dale 1 Maint. Yard 2 Wheel Trailer with blank Sign 1 Maint. Yard End of Track Net 1 Maint. Yard Gas Tanks in Compound with 2 Maint. Yard safety /catchTank Codex Steel Storage Container 1 CCLU5 Maint. Yard Kobolt Air Compressor 1 Maint. Yard in Codex Track Sprayer 1 JD AC1 -5GH Maint. Yard in Codex Fire Extinguisher 1 City of Pueblo 31480 Maint. Yard in Codex Polaris Trail Boss ATV 1 4WDDR Maint. Yard in Codex Small John Deere Lawn Mower 102 1 Maint. Yard in Codex 5- Speed Eaton Fuel Tank with Water Tank 1203 1 Maint. Yard Tan Mobile Ticket Booth on Trailer 1 Maint. Yard Ticket Booths 3 On Site Rubber Machine 1 Maint. Garage Emergency vehicle (On lease) 1 Parks Division Mobile Trailer /office 1 On Site Tower racing computer 1 Parks and Rec. basement Tech Shack 1 On Site Garages 2 On Site Bleachers 2 On Site Golf Carts (On lease) 2 Parks Division — Page 19 of 25 Exhibit E Exhibit B (Area a) City of Pueblo Pueblo Motorsports Park Project AREA MAP r ' I u & r n 1 • „.• jf . ' .-•' ; .P' -- , / F� // ma�yy " " ' ,-. ihi , _ sl � ti'r•�Li'�•i� 4 t i p +iiVA z I1 `-t • W . 'Or . . q u a t* ire a I(r®; 1 3 {dam (y °' I (a I I z J • 4 I` f LCn , 111111 N �' Legend "'I EXISTING HONOR FARM PROPERTY Diala 25 PRIVATE PROPERTY 'O+► STATE PROPERTY t ; o ®PITERSTATE 25 0 1 2 3r ,,w s . STATE AND LOCAL HIGHWAYS r W ' r I —I--F RAILROADS x4 Z gr e = uy r =4.',7b. ," [ — I Pueblo City Limits [lapvAW W n Yb ron.R,.. •. mvorv.uo m.w..ai sewn P ueblaWsst_DlstBnunde ya .ompw- nef�Ne- .ien.w.wdwmm � rY_ 0307 Page 20 of 25 Exhibi$ E Exhibit -1- ( ® ®r Far a) , a,:. °� �� i *.�` t a ��' Et+�' y " 5 !` f' �f 4�*Si �� 3 s?. 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I 4�.'""��, y w� £ �� e 4�"�ti� e._ «'�t ��°+,°w y x r aso ° ° a , n + m r�a�,a as Ra ° ay 4 4,�s a ? �4 4 b "»e a v r >e#oPSa? t�".. 4 �.'�. � ".�"�. ":, t � s w a, n #e s e4o$ a a ° a ° 'r�'t ° m� > t a a * �' °®" a ",�# � .,i �.. �... \� t , ,��� 5,'f, r� aa.rc asovmvc s ,s + < ° gis t �.. N, M�'•• ��" 'F{F� M d b M$ E" f d $ N f P 9 8 a � K ' L @11f� e : as *r +a.'° *st< a� ° a m ry �r a "'� �'�s "c ai s.," a s`�c � f d� m '� "*: x S 'k 4 L i�# M a t? >a m 4 J '� ° J EXISTING HONOR FARA1 PROPERTY g x�� t �2# x v ��* ;,� - '��r Y v +' r a �} n 9 t s r a . x " ° k e ° * s i y� �; L� u r `".' f d d d� ',�t �� "x� i �G�a �' x � ♦ p + a �w m t + #�*� � �' . ,.,,, y S' r , y" y d° k f M� g+ d X t �, P :,C• a A PRIVATE PROPERTY y �� k @ �� zfa+^� �b r ? fi 4 T P a 4 r e• ' 1 � F *ti v A'� +` i p � STATt PRPPERTV q P t H t i M 'd a P ,yY£ ��taar x aV4m�� d9tl17 ��,<tt ,� �y. �*•� 1 �a � as + o - '�N " -'+' � wenocnvumnc €:. '� ww; �b 4 §�;. f,.f+r �k�+ t to x(� � c a £ c� e � ,.. s 1 4 a e '"� __ + � ww w�.rwx � w ar m y "�' � t i d.f• % �� r � n n t �` Ya' �, S •r I _ b+.t � 5 { �. _ � y. y.. MM q � . l Y„ _ Y. 8 b R w TY r' � � PUEBLO WEST � y , Y r � P�' 4 3 � _ .iaW .....wYww{.wF , �z S, - �; °.�.�r -E � a., .:'cc, _ '`�..5� , �:a. � `` ._r1i Page 2 ] of 25 Exhibit E Exhibit B -2 (Race Facility Map I) Pueblo Motorsports Park Exhibit B -2 (Race Facility Map I) tItti 111 4 . b ` , .4, fit. A. \ . ; 1 .7 , i. ,-,-. , . ,, i t' 4 1 d y 6 s li a k a '''x#i► �V F . aY , ‘ '-, ,_ - i / • 1 # 'i }` i + s x+11 �,:r r r 4: Z Ii i ; w y . y ,r P , I J t i * .. .r ` i \ iMy ,� PUEBLfI Page 22 of 25 Exhibit E 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 , 20 . By: Name: Title: For purposes of responding to question (b) above, an "affiliated party" includes (1) any person who is the named beneficiary or cobeneficiary on the PERA account of the PERA Retiree; (2) any person who is a relative of the PERA Retiree by blood or adoption to and including parents, siblings, half - siblings, children, and grandchildren; (3) any person who is a relative of the PERA Retiree by marriage to and including spouse, spouse's parents, stepparents, stepchildren, stepsiblings, and spouse's siblings; and (4) any person or entity with whom the PERA Retiree has an agreement to share or otherwise profit from the performance of services for the City of Pueblo by the PERA Retiree other than the PERA Retiree's regular salary or compensation. Page 24 of 25 Exhibit E EX1<IIBIT D ADDENDUM TO CERTIFICATE OF INSURANCE Commercial General Liability Policy No. Umbrella Policy No, ADDITIONAL INSUREDS The following are additional insureds, but only to the extent that liability arises from the operations of the named insured for the Event listed on this certificate: Name of Renting Organization AND City of Pueblo acting by and through its Honor Farm Properties Enterprise dba Pueblo Motorsports Park, its officers, employees, and agents. AND The City of Pueblo, its officers, employees and agents Page 25 of 25 Exhibit F CERTIFICATE OF INSURANCE Exhibit G 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 d/. (Musr sign below whether you answer `yes" or "no ".) (b) If you answered "yes" to (a) above, please answer the following question: Are you I) 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 (l, 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 w' i the City of Pueblo. Signed � C�J' l� , 20 �� By: C �✓�� -- Name: �C�. l7 `� �l�'Ya Title: ©W n P f � ��`� � � ��1� Por 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. AMENDMENT TO A LEASE AND MANAGEMENT AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND FAASST MOTORSPORTS, INC., FOR CERTAIN FACILITIES AT PUEBLO MOTORSPORTS PARK n d /hard `3# 5•1C THIS AMENDMENT is entered into on this day of F ary, 2014 by and between the City of Pueblo, a Municipal Corporation acting through its Honor Farms Properties Exchange (the "City "), and FAASST Motorsports, Inc. ( "FAASST "). WHEREAS, City and FAASST entered into a Lease and Management Agreement Between the City of Pueblo, a Municipal Corporation, and FAASST Motorsports, Inc., for Certain Facilities at Pueblo Motorsports Park ( "Lease and Management Agreement ") on March 11, 2013; and WHEREAS, City desires to transfer all right, title and ownership of certain items of Routine and Scrap Equipment to FAASST, and FAASST desires to accept the same; and WHEREAS, FAASST desires to amend the terms of the Lease and Management Agreement to affect such transfer as set forth herein; and WHEREAS, this Amendment 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. Upon execution of this Amendment, all right, title and interest to the items of Routine and Scrap Equipment set forth below, as amended, previously included in the Lease and Management Agreement as Exhibit B, shall pass to FAASST. PMP Vehicle No. Year Description 226014 1984 743 Bobcat 226044 1999 John Deere 544 Front End Loader 226080 1980 International Water Truck 226010 1961 BROOM A 226012 1976 F966 International Tractor Turbo 226013 1971 F966 International Tractor 226008 1988 TYMCO Sweeper 1961 Allis Chambers Road Grader Quantity Description PMI Misc. Fuel — 50 gal drums 1 Brush Hog 3 point 1 Box Scraper 3 point Page 1 of 4 , Box Drag 3 point 1 Light Towers Trailer Mounted 1 Light Towers Trailer Mounted 1 Harrow Plow — implement 1 Track Sprayer (model # JD ACI — 5 GH) This equipment shall be known as "Transferred Equipment ". All other items listed in Exhibit B to the Lease and Management Agreement as "Leased Equipment," "Routine Equipment," or "Scrap Equipment" shall remain the property of City. 2. FAASST shall be responsible, at its sole expense, for any and all maintenance, repairs or replacement of the Transferred Equipment, with no right to demand, offset, contribution, or reimbursement from City. ALL TRANSFERRED EQUIPMENT CONVEYED TO FAASST BY THIS AMENDMENT IS ON AN "AS IS" "WITH ALL FAULTS" BASIS, AND CITY MAKES NO REPRESENTATION OR WARRANTY AS TO THE CONDITION OR FITNESS OF THE EQUIPMENT FOR ANY PARTICULAR USE OR PURPOSE. 3. FAASST's right to maintain ownership of the Transferred Equipment is contingent upon successful completion of the initial Term of the Lease and Management x ,06 Agreement. If FAASST breaches the Agreement or fails to continue doing business at the Park &di 00 5 wi e initial Term, ownership of the Transferred Equipment shall revert back to the City. �QC3� FAASST agrees to perform any and all actions necessary to effectuate the return of the Transferred Equipment to City, including completing and executing forms or documents or `> . A arranging and paying for transportation of equipment that has been removed from the premises. If the Transferred Equipment is required to be returned, FAASST shall return all such equipment in the same condition as it was received, subject to reasonable wear and tear. 4. Section 8(a) from the Agreement is hereby deleted and replaced with the following language: City has paid for certain capital improvements to the Leased Premises and purchased the Equipment presently located on the Leased Premises as set forth in Exhibit B attached hereto, for FAASST's use on the Leased Premises. All such improvements and Equipment, with the exception of the Transferred Equipment that shall become the property of FAASST upon execution of this Amendment and successful completion of the initial Term, shall remain Property of the City and shall be returned to the City at the termination of this Agreement. All Equipment shall be tagged with City identification within one (1) month of signing of this document. All Equipment shall retain its City identification permanently, with the exception of the Transferred Equipment. At the time of successful completion of the initial Term, FAASST may remove City identification from the Transferred Equipment. Page 2 of 4 5. Section 8(b) from the Agreement is hereby modified to permit FAASST to remove only the Transferred Equipment from the premises, subject to return upon breach of the contract or discontinuation of business during the initial Term as set forth in paragraph 3 above. The City shall have no duty =to inspect the Transferred Equipment but may choose to inspect and test the Transferred Equipment any time prior to the expiration of the initial term of the Lease and Management Agreement upon reasonable notice to FAASST. 6. Section 10(i) of the Lease and Management Agreement shall not apply to the Transferred Equipment, except that should FAASST utilize the city Fleet Department for maintenance or repair services of the Transferred Equipment, all repairs must be done during the City fleet normal working hours M -F from 8:00 a.m. to 5:00 Nit and'all invoices provided to FAASST for maintenance, repair, and/or replacement of the Transferred Equipment shall be paid within forty-five (45) days of the invoice. All provisions of Section 10(i) not modified herein shall remain in full force and effect. ; 7. Section 10(k) of the Lease and Management Agreement shall not apply to the Transferred Equipment, but shall otherwise remain in full force and effect::. 8. Except as expressly modified by this Amendment, the Lease and Management Agreement shall remain in full force and effect. Except as modified by this Amendment, the obligations of either party to be performed under the Lease and Management Agreement are not waived nor excused in any manner, but shall be performed in accordance with the terms and 7. conditions .of the Lease and Management Agreement as it existed prior to this Amendment. Page 3 of 4 IN WITNESS WHEREOF, City and FAASST have executed this Amendment to the Lease and Management Agreement as of the date first written above. FAASST MOTORSPORTS, INC. CITY OF PUEBLO, a Municipal Corporation '- .V. . i By � Alla+.. . By Jud " s, President Sam Azad, City Manager X 44 3� • • i - c) r , , _ / ATTEST: t; 0(4( / 1 ,.. ...c n „nom - (` i ce . :1r 4.1.4.. ' x�a�l g X11 Gi Dutcher, City Clerk • APPROVED AS TO FORM: 11;( City Attorney 47 Page 4 of 4