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HomeMy WebLinkAbout09894ORDINANCE NO. 9894 AN EMERGENCY ORDINANCE APPROVING A LEASE AND MANAGEMENT AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND SOUTH PRAIRIE AND O’NEIL ENTERPRISES, LLC FOR THE OPERATION, MANAGEMENT, AND PROMOTION OF CERTAIN PREMISES AT PUEBLO MOTORSPORTS PARK, AND AUTHORIZING THE MAYOR TO EXECUTE THE SAME WHEREAS, the contract for the lease and management of the Pueblo Motorsports Park with the Racing Community of Southern Colorado expired on December 31, 2020; and WHEREAS, the City advertised and received a total of four proposals for a new Pueblo Motorsports Park operator; and WHEREAS, it was found that TRASH, LLC met the needs of the project and, following a thirty-day facility inspection period per the company’s request, contract negotiations with the City began; and WHEREAS, with no explanation, TRASH, LLC rescinded its proposal to operate, manage, and promote the Pueblo Motorsports Park, leaving the premises vacant and unused for months; and WHEREAS, the proposals were re-evaluated and NASA Rocky Mountain, Inc. was found to meet the needs of Pueblo Motorsports Park and its customers; and WHEREAS, NASA Rocky Mountain, Inc. created South Prairie and O’Neil Enterprises, LLC as a separate legal entity to lease and manage Pueblo Motorsports Park; and WHEREAS, in order to serve the best interests of the racing community and the public, the City desires the services of South Prairie and O’Neil Enterprises, LLC to manage, operate, and promote the facilities at Pueblo Motorsports Park; and WHEREAS, if management at Pueblo Motorsports Park is not immediately approved, events at the park will not be scheduled for 2021 and the premises will remain vacant and unused for the next year; and WHEREAS, a manager is immediately needed at the Pueblo Motorsports Park: (1) to occupy and maintain the vacant property, ensuring the premises does not deteriorate or contribute to blight, thereby protecting the public health, (2) to preserve the public property and ensure it does not fall into a derelict or dangerous condition, and (3) to maintain the premises, such that those intending to access the park are not in danger from deteriorating conditions and preventing the vacant land from being used for criminal activities, thereby preserving public safety; and WHEREAS, in accordance with Charter Section 3-20, an emergency ordinance is required for the immediate preservation or protection of public health, property, or safety, and the vacancy of Pueblo Motorsports Park is declared an emergency; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Lease and Management Agreement for Certain Facilities at Pueblo Motorsports Park (“Lease and Management Agreement”) between the City of Pueblo, a Municipal Corporation, and South Prairie and O’Neil Enterprises, LLC, incorporated herein and attached hereto, having been approved as to form by the City Attorney, is hereby approved. SECTION 2. The Mayor is hereby authorized to execute the Lease and Management Agreement on behalf of the City, and the City Clerk shall affix the Seal of the City thereto and attest the same. SECTION 3. The officers and staff of the City are authorized to perform any and all acts consistent with this Ordinance to implement the policies and procedures described herein. SECTION 4. This Ordinance shall become effective on the date of final action by the Mayor and City Council. Action by City Council: Introduced and initial adoption of Ordinance by City Council on March 8, 2021 . Final adoption of Ordinance by City Council on March 8, 2021 . President of City Council Action by the Mayor: ☒ Approved on March 10, 2021 . □ Disapproved on based on the following objections: _ Mayor Action by City Council After Disapproval by the Mayor: □ Council did not act to override the Mayor's veto. □ Ordinance re-adopted on a vote of , on □ Council action on _______ failed to override the Mayor’s veto. President of City Council ATTEST City Clerk City Clerk’s Office Item # S-2 BACKGROUND PAPER FOR PROPOSED ORDINANCE COUNCIL MEETING DATE: March 8, 2021 TO: President Lawrence W. Atencio and Members of City Council CC: Nicholas A. Gradisar, Mayor VIA: Brenda Armijo, City Clerk FROM: Steven Meier, Parks and Recreation Director SUBJECT: AN EMERGENCY ORDINANCE APPROVING A LEASE AND MANAGEMENT AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND SOUTH PRAIRIE AND O’NEIL ENTERPRISES, LLC FOR THE OPERATION, MANAGEMENT, AND PROMOTION OF CERTAIN PREMISES AT PUEBLO MOTORSPORTS PARK, AND AUTHORIZING THE MAYOR TO EXECUTE THE SAME SUMMARY: Attached is an Emergency Ordinance approving a Lease and Management Agreement for Certain Facilities at Pueblo Motorsports Park between the City of Pueblo and South Prairie and O’Neil Enterprises, LLC for the operation, management, and promotion of the drag strip and road racing facilities. PREVIOUS COUNCIL ACTION: Not applicable to this Ordinance. 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 the Pueblo Motorsports Park (PMP) contains approximately 233 acres of fenced-in, contained motorsports areas and facilities within the Honor Farm property. On March 14, 2016, the City of Pueblo entered into a five-year lease and management agreement with the Racing Community of Southern Colorado, LLC (RCSC) to operate, manage, and promote the City owned PMP facility. This agreement expired December 31, 2020. The City advertised and received a total of four proposals for a new PMP operator. Proposals were evaluated by members of the Honor Farm Enterprise Citizen’s Advisory Board and recommended TRASH, LLC as the new vendor to manage and operate PMP. On November 25, 2020, TRASH, LLC representatives were notified that the Evaluation Committee had determined that they met the needs of the project and following a thirty-day facility inspection period per their request, negotiations with the City began. On February 2, 2021, with no explanation, TRASH, LLC rescinded their proposal to operate, manage, and promote the Pueblo Motorsports Park. The three remaining proposals were re-evaluated by the Honor Farm Enterprise Citizen’s Advisory Board and determined NASA Rocky Mountain, Inc. would meet the needs of PMP and its customers. NASA Rocky Mountain, Inc. created South Prairie and O’Neil Enterprises, LLC as a separate legal entity to lease and manage Pueblo Motorsports Park. FINANCIAL IMPLICATIONS: In accordance with the Lease and Management Agreement’s financial terms, South Prairie and O’Neil Enterprises, LLC agrees to pay to the City the annual base rent of $25,000 per year with cash payments and/or equal value through track renovations. In addition to the base rent, the manager will also provide one dollar ($1) per spectator fee for each event conducted by the contractor and a five dollar ($5) per vehicle track improvement fee for every vehicle that utilizes a track for any event or rental. The submitted proposal lists a minimum of twenty-eight (28) South Prairie and O’Neil Enterprises, LLC sponsored events scheduled for 2021. Other events and promotions by South Prairie and O’Neil Enterprises, LLC will be offered throughout the racing season in addition to the minimum number of scheduled events. The operator will be responsible for paying all utilities, including but not limited to electric, gas, sewage, water, trash, cable tv, and internet services. It is expected that the City will be responsible for various expenses each year, depending upon required repairs to the buildings and the facility. South Prairie and O’Neil Enterprises, LLC may enter into sponsorship contracts for less than $20,000. Any sponsorship contract over $20,000 or involving the naming of the whole, or any portion of, the leased premises must be approved by the City. BOARD/COMMISSION RECOMMENDATION: The Honor Farm Enterprise Citizen’s Advisory Board has recommended that this Lease and Management Agreement be approved as submitted. STAKEHOLDER PROCESS: Not applicable to this Ordinance. ALTERNATIVES: Should City Council not approve this Ordinance, the Pueblo Motorsports Park will remain closed indefinitely. RECOMMENDATION: Approval of the Ordinance. Attachments: Ordinance Lease and Management Agreement for Certain Facilities at Pueblo Motorsports Park NASA Rocky Mountain, Inc. Proposal to RFP 20-058 LEASE AND MANAGEMENT AGREEMENT FOR CERTAIN FACILITIES AT PUEBLO MOTORSPORTS PARK This Agreement("Agreement")is made and entered into this $} day of lm R RC 12021,by and between the City of Pueblo acting by and through its Honor Farm Properties Enterprise (hereinafter referred to as "City"), and South Prairie and O'Neil Enterprises, LLC (hereinafter referred to as"Operator"). 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, Operator has experience managing and conducting motor sports events and desires to manage, use,maintain, 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 Operator to manage, use, maintain, 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) "City Fleet" means the City's Department of Fleet Maintenance, located at 300 E. "D" Street, Pueblo,CO. "City Fleet Services Supervisor"means the City's Director of Fleet Maintenance or any person that the Director of Fleet Maintenance may authorize to act in his stead. (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 Agreement Exhibit B attached hereto. (d) "Grounds Equipment," "Concessions Equipment," "Office/Mobile Home Equipment" and "Tower Equipment"used individually shall only mean that equipment specifically designated by and listed under those headings in Agreement Exhibit B attached hereto. (e) "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 as Agreement Exhibit A. No event shall be conducted outside the leased boundary on the Honor Farm property without prior written approval of the City, which approval shall not be unreasonably withheld. Events may not be held on the land surrounding the Honor Farm property. (f) "Physical Facilities" shall mean the buildings, parking lots, tracks, plumbing system, heating system, and electrical system located on the Leased Premises. (g) "Profit" shall mean adjusted gross income reported on Operator's annual Federal Tax Return. (h) "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: Agreement Exhibit A: Area Map with marked perimeter designating the Leased Premises, Honor Farm Map, Race Facility Maps I & II Agreement Exhibit B: List of Equipment Agreement Exhibit C: Request for Proposal for Bid 20-058 Agreement Exhibit D: Certificate of Insurance Agreement Exhibit E: 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 Operator the exclusive right to occupy, use, manage, maintain, 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 Operator to inspect the premises,and to perform major repairs. City will use good faith efforts to notify Manager of its need to enter the Leased Premises. (2) The City's right to review and approve any and all Sponsorship Contracts as set forth in Section 10 of this Agreement. (3) The City's right to inspect the Operator's records,including but not limited to sales receipts, inventory lists, equipment logs, third party Release Agreements, purchase orders, payroll, financial records, tax returns, and bank statements, or any subcontractor contracted by Operator 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. Operator shall, at least quarterly, submit financial reports evidencing profits,ticket sales, and any other financial information the Director requires. (4) Operator holding, operating and/or managing a guaranteed minimum number of racing events on the Leased Premises as follows: • 12 Road Racing events(motorcycle or auto) • 12 Non-Consecutive Friday Night Drag events (June,July, August) • 4 Drag Racing Points events (5) Operator shall enter into a rental agreement with Southern Colorado Quarter Midgets Association and Southern Colorado Youth Development for use of the tracks located within the Leased Premises. 4. TERM. (a) The initial Term of this Agreement shall commence on , 2021 and end on December 31, 2025 ("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 five additional one-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 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. Operator shall pay to the City without notice,offset,or deduction base rent for the Leased Premises as follows, except as may be provided in Sections 9 and 14 herein: Yearly Rental Rates: i. Year 1 (January 1, 2021 —December 31, 2021) $25,000.00 ii. Year 2 (January 1, 2022—December 31, 2022) $25,000.00 iii. Year 3 (January 1, 2023—December 31, 2023) $25,000.00 iv. Year 4 (January 1, 2024—December 31, 2024) $25,000.00 v. Year 5 (January 1, 2025—December 31, 2025) $25,000.00 (b) Base Rent 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. Base Rent shall be paid into the Honor Farm Properties Enterprise. Base Rent shall be due without notice, offset, or deduction in two (2) 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, except as may be provided in Sections 9 and 14 herein. In accordance with law, the City shall endeavor, but not be obligated, to use as much of the Base Rent as possible to maintain,repair, and/or upgrade the Leased Premises. (c) For each rental year, of the twenty-five thousand dollars and zero cents ($25,000.00) due in Base Rent, fifteen thousand dollars and zero cents($15,000.00)will be paid by the Operator through the purchase of improvements, additions, fixtures, equipment, installations, and major repairs for the Leased Premises (the "In-Kind Rent"), subject to the City's prior written consent, which consent shall not be unreasonably withheld. The remaining ten thousand dollars and zero cents ($10,000.00) will be due as regular rent to be paid in cash or check in accordance with Section 5(b) above(the"Cash Rent"), but may be offset further in accordance with this Agreement. Operator shall comply with all laws,rules, ordinances, and directives applicable to all work performed by Operator or on Operator's behalf,including the securing all required bonds. Operator shall obtain all required permits and approvals with respect to all such work. Operator shall be solely liable to its contractors and subcontractors, and shall hold harmless, defend, and indemnify City from any claims by said contractors or subcontractors, including claims for nonpayment. All modifications,alterations,and improvements made or added to the Leased Premises by Operator(other than Operator's inventory, equipment, movable furniture, wall decorations, and trade fixtures) shall be deemed real property and a part of the Leased Premises, but shall remain the property of Operator during the Agreement, except that Operator shall not remove said property from the Leased Premises during the term of this Agreement. Operator hereby covenants and agrees not to grant a security interest in any such items to any party other than the City. (d) Operator shall submit to City a written proposal for all purchases to be made for In-Kind Rent, which will include the value thereof and the anticipated costs of maintenance. Operator must obtain the prior written approval of the Director and Mayor prior to any expenditure. Operator shall maintain the improvements, additions, fixtures, equipment, installations, and major repairs in good and safe condition, appearance, and state of repair, regardless of the cause or need for maintenance and repair. Operator must submit a copy of a final invoice and proof of payment to Director in order to receive credit towards the In- Kind Rent due. If the purchased improvements, additions, fixtures, equipment, installations, and major repairs do not aggregate to the value of fifteen thousand dollars and zero cents ($15,000.00) due for a year as In-Kind Rent, or Operator's payment for the same is rejected, dishonored, or not completed for any reason, the difference between the In-Kind Rent paid and the fifteen thousand dollars and zero cents ($15,000.00) due shall be added to the regular Cash Rent due and be paid in cash or check in accordance with Section 5(b). Should this Agreement be terminated for any reason prior to the date of its expiration, City shall not refund to Operator the cost of any improvements,additions,fixtures,equipment,installations, and major repairs. The improvements, additions, fixtures, equipment, installations, and major repairs shall become the property of the City upon termination of this Agreement. (e) Prepayment. The parties agree that the Operator may prepay the whole or any part of the Base Rent of this Agreement from time to time without premium or penalty. Should this Agreement be terminated for convenience or for a reason other than Operator's breach prior to the date of its expiration, Operator shall be entitled to the return of any rent paid in advance and covering the period following the date of termination, provided such funds are not needed to cure the default or breach of Operator. City shall not be obligated to return rent paid for future years in violation of Article X, § 20 Colorado Constitution. (f) Operator 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. FEES. (a) Spectator Fees. Operator will remit to the City one dollar ($1.00) per spectator or other attendee for all events directly hosted or administered by Operator. Spectator Fees are in addition to and not part of the Rent. Spectator Fees 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. Spectator Fees shall be due without notice,offset,or deduction on the first day of each month following an event,where Spectator Fees collected for all events held the previous month are due. (b) Track Improvement Fees. Operator will remit to the City five dollars ($5.00) per vehicle that uses a track for any event or rental. Track Improvement Fees are in addition to and not part of the Rent. Track Improvement Fees 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. Track Improvement Fees shall be due without notice, offset, or deduction on the first day of each month, where all Track Improvement Fees collected in the previous month are due. Track Improvement Fees shall be set aside in a separate revenue fund account designated solely for track and road course overlay and repair. 7. UTILITIES. Operator shall pay, before delinquent, all charges for utilities, including but not limited to electric, gas, sewage, water,phone, trash, cable, and internet. 8. SECURITY DEPOSIT. (a) Operator shall pay to City and City shall retain a deposit in the sum of Five Thousand Dollars ($5,000) to ensure performance of Operator's obligations under this Agreement. Operator shall pay one half of the Security Deposit ($2,500) upon execution of this Agreement. Operator shall pay the balance of the Security Deposit($2,500)no later than seven(7) business days after Operator holds its first revenue generating event. In the event that Operator 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 Operator's default. Nothing contained in this Agreement shall require City to remedy Operator's default in this manner, and City may instead, in its sole and absolute discretion, refuse to remedy Operator'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 Operator's default, City shall notify Operator in writing and require Operator to replenish the deposit to its original level. Failure of Operator 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 terminate, City shall refund to Operator the Security Deposit, less any portion of the Security Deposit that City has applied to remedy any of Operator'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. 9. 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 Operator'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) The parties agree that Operator shall have the right to purchase a track sprayer up to a maximum of twelve thousand dollars and zero cents ($12,000.00) in value. This purchase shall be counted towards the In-Kind Rent due. Operator shall submit to City a written proposal for the track sprayer that includes the value thereof and the anticipated cost of maintenance. Operator must obtain the prior written approval of the Director and Mayor prior to any purchase. Operator shall maintain the track sprayer in good and safe condition, appearance, and state of repair, regardless of the cause or need for maintenance and repair.To receive a reduction or offset,Operator must submit a copy of a final invoice and proof of payment to Director in order to receive credit for any reduction in rent. If a track sprayer is not purchased, or Operator's payment for the same is rejected,dishonored,or not completed for any reason,rent shall be paid according to the provisions of Section 5. The offset or reduction may only apply to the next payment of Base Rent due. Should this Agreement be terminated for any reason prior to the date of its expiration, City shall not refund to Operator the cost of the track sprayer. The track sprayer shall be returned to and become the property of the City upon termination of this Agreement. (c) Operator shall not remove any Equipment from the Leased Premises without the express written consent of the City. Except as otherwise provided by this Agreement, Operator shall operate and maintain, at its own expense, all Equipment. ALL EQUIPMENT PROVIDED TO OPERATOR AS SET FORTH IN AGREEMENT EXHIBIT B IS ON AN"AS IS""WITH ALL FAULTS" BASIS, AND CITY MAKES NO REPRESENTATIJON OR WARRANTY AS TO THE CONDITION OR FITNESS OF THE EQUIPMENT FOR ANY PARTICULAR USE OR PURPOSE. Operator is hereby advised that Operator shall be solely responsible for personally inspecting the Equipment before execution of this Agreement and any use of the Equipment.Operator's execution of this Agreement and use of the Equipment shall constitute an expressed acknowledgement by Operator that the Equipment is safe and adequate for Operator's intended and permitted use. Operator 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 Operator, its employees, agents, independent contractors, subcontractors, 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. City is not subject to the Occupational Safety and Health Administration ("OSHA")and shall not be liable for any fine or fee levied against Operator thereby. 10. SPONSORSHIP CONTRACTS AND WEBSITE. (a) Sponsorship Contracts. Operator 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 Operator 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 naming of the whole,or any portion of the Leased Premised must be approved by the City in writing,which approval may be withheld in the sole and absolute discretion of the City. (b) Website & Social Media Site. Operator 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. Operator must always 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. Operator may create and manage a separate social media site to promote the Pueblo Motorsports Park. The City has the right to require Operator to discontinue any advertising on the Pueblo Motorsports Park website or any social media site that the City believes, in its sole and absolute discretion, is not in the City's best interests. 11. MAINTENANCE OF LEASED PREMISES AND EQUIPMENT. (a) Except as otherwise provided in this Agreement, Operator shall operate, staff, manage, clean, repair, keep clean and sanitary, and maintain the Leased Premises and Equipment. Operator shall perform these duties with reasonable care according to the highest standards in the industry. (b) Operator 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. Operator shall not allow ramming exercises on the racetracks within the Leased Premises. Operator may allow drifting events and military training on the Leased Premises, so long as such events and training do not involve firearms, explosives, or vehicles that would damage the racetracks and the Leased Premises. Where Operator allows drifting events or military exercises on the Leased Premises, Operator shall at its sole cost and expense repair all damage to the premises caused thereby immediately after the event or training, fully indemnify the City against any related claims, and provide adequate additional insurance to cover the event or training and such use of the premises. (c) Operator shall develop and follow a maintenance schedule to control the growth of natural vegetation on the Leased Premises. This program shall include a regular schedule for weeds and other vegetation to be sprayed and mowed or otherwise eliminated. Operator shall ensure that all-natural vegetation in the vicinity of the racetrack and spectator areas shall not exceed 5 inches (5") in height or otherwise as approved by Director. City will provide support to Operator as available to assist in the control of natural vegetation on the Leased Premises, which may include supplying information, guidance, or chemicals. (d) Operator 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) Operator shall repair and restore the Leased Premises and all its tracks and facilities to pre- event condition within a reasonable time after each Operator event. Operator shall report to the Director any major damage to the Leased Premises within one business day after the damage occurs. (f) Operator 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) Operator 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. Operator 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 and glass. If so directed by the City after inspection of the Leased Premises, Operator shall perform all necessary additional clean- up at its sole expense. (i) Operator shall be responsible, at its sole expense, for all maintenance of the Physical Facilities and Equipment, except as provided in paragraphs (k) through (m) below. Operator shall notify the Director of any damage or theft of Equipment or of the Physical Facilities within twenty-four(24)hours of the occurrence. (j) Operator shall record all hours of use of each piece of Grounds Equipment in a log, which shall be provided to the City Fleet Services Supervisor the first day of each month. Once per year or as otherwise requested by City,Operator shall provide access to the Leased Premises and Grounds Equipment in order to allow the City to inspect and test the Grounds Equipment. 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, Operator shall set up a yearly schedule for inspection and testing of the Grounds Equipment with Fleet Services. If requested by City, inspection and testing of the Grounds Equipment will occur at City Fleet. Operator shall be responsible for transporting Grounds Equipment to City Fleet. All inspection and/or testing work must be performed during the City Fleet Department's normal working hours Monday through Friday from 8:00 a.m.to 5:00 p.m. Operator will only hire and use qualified persons to operate the Grounds Equipment. (k) Operator shall be responsible for all routine maintenance of the Grounds Equipment. All routine maintenance shall be performed by a certified, licensed technician belonging to Operator's organization and approved by Director in writing. If Operator does not have available such a technician, then all routine maintenance shall be performed by City Fleet. All work must be performed during City Fleet's normal working hours, Monday through Fridays from 8:00 a.m. to 5:00 p.m. at City's Fleet's facility. Operator is responsible for transporting all equipment to City Fleet for maintenance and for all costs and fees incurred as a result.Operator shall be responsible for the cost of all parts necessary for routine maintenance of the Grounds Equipment. Operator shall obtain all parts necessary for routine maintenance from City Fleet. If the City Fleet Services Supervisor notifies Operator that it is unable to obtain the necessary parts, or that parts of like kind and quality may be obtained from an alternate source at a lower cost,then Operator,with the written approval of both the City Fleet Services Supervisor and Director, may obtain parts from such alternate source. For the purposes of this Agreement,"routine maintenance"means all simple,small-scale maintenance normally associated with regular and general upkeep,both preventative and to address normal wear and tear, and specifically includes but is not limited to the replacement or changing of fluids, filters,tires, bulbs,and fuses, but shall not include major repair or replacement of parts or subsystems. (1) Operator shall pay the first one thousand five hundred dollars ($1,500) per occurrence, to make major repairs and/or replacements the Physical Facilities and Grounds Equipment. Thereafter, the City shall pay any and all remaining amounts necessary to repair and/or replace the Physical Facilities and Grounds Equipment so long as the repair and/or replacement is not necessitated by the negligence of Operator, 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 Grounds Equipment if it determines the repair and/or replacement is not necessary to the operation of the Leased Premises. In addition to the requirements in paragraph 11(k), Operator shall notify the City Fleet Services Supervisor when an item of Grounds Equipment is in need of major repair within twenty-four (24) hours of the damage and schedule an appointment with the City Fleet Services Supervisor to bring the item in for repair. All repairs to the Grounds Equipment shall be performed by City Fleet during City Fleet's normal working hours, Monday through Friday,from 8:00 a.m.to 5:00 p.m.at City's Fleet's facility,unless otherwise mutually agreed upon by the Parties as provided herein. Operator is responsible for transporting all equipment to City Fleet for repairs and for all costs and fees incurred as a result. All invoices provided to Operator for maintenance, repair, and/or replacement of the Physical Facilities or Grounds Equipment shall be paid within forty-five (45)days of the invoice. City and Operator may negotiate to allow an independent professional to perform repairs of the Grounds Equipment on the Leased Premises. Operator shall provide a detailed written quote describing the nature and extent of the repair, necessary parts, labor time, and any costs and fees for approval by Director and City Fleet Services Supervisor. Director and City Fleet Services Supervisor may request additional information as needed in order to evaluate the request. Operator must obtain the prior approval of Director and City Fleet Services Supervisor prior to any work being performed,which approval may be withheld by City in its sole and absolute discretion. For the purposes of this Agreement, "repair or replacement" means: a repair that necessitates the removal of an integral part; wherein replacement of a part with a new,used, or rebuilt one is necessary; or one in which a substantial amount of time to complete is required; and specifically includes but is not limited to engine and transmission rebuilding or replacement,timing of the engine or replacement of timing chains, repair or replacement of the drive train, chassis, suspension system, axels, water pump, belts, replacement of glass, or any auto-body work. (m) Operator shall pay the first five hundred dollars ($500) per occurrence, to repair and/or replace the Concession, Office/Mobile Home, and Tower Equipment. Thereafter, the City shall pay any and all remaining amounts necessary to repair and/or replace the Concession, Office/Mobile Home, and Tower Equipment so long as the repair and/or replacement is not necessitated by the negligence of Operator, 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, Office/Mobile Home, and Tower Equipment if it determines the repair and/or replacement is not necessary to the operation of the Leased Premises. All invoices provided to Operator for maintenance, repair, and/or replacement of Concession, Office/Mobile Home, and Tower Equipment, or any other Equipment listed in Exhibit B, shall be paid within forty-five (45) days of the invoice. (n) Except as otherwise provided in this Agreement, Operator 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. 12. CONSERVATION EASEMENT; SPECIAL EVENTS; POLICE DEPARTMENT USE; KEYS; AND PYROTECHNICS. (a) Conservation Easement. Operator understands and agrees that this Agreement and Operator'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"). Operator acknowledges receipt of a copy of the Easement. City makes no representation or warranty that Operator's intended use of the Park or the provisions of this Agreement are approved uses or allowed under the Easement. (b) Special Events. Operator shall notify Director of its intent to host special events upon the Leased Premises at least forty-five (45)prior to the event date,or as soon as reasonably possible thereafter but in no event less than thirty(30)days before the intended date of the special event. Director shall evaluate each request and shall notify Operator of his approval or disapproval in writing at least thirty (30) days prior to the event date. For the purposes of this Agreement, "special events" shall be those that require the relocation, modification, or removal of a structure or improvement on the Leased Premises, or a physical modification to a feature or surface configuration of any land area within the Leased Premises, including but not limited to moving the bleachers or mobile home, or digging mud pits, holes, or other cavities. (c) Police Department Use. Operator shall negotiate in good faith with the Pueblo Police Department to allow the Police Department use of the Leased Premises for training purposes. Operator shall be responsible for any damage that occurs during Pueblo Police Department use of the Leased Premises, unless Operator enters into a written agreement with the Pueblo Police Department that indicates the Police Department shall be responsible for any damages. (d) Keys. Operator must provide access per City request to the Leased Premises, including but not limited to any buildings, facilities, and tracks. In the event that Operator changes any locks to any buildings, gates, or facilities Operator must within twenty-four (24) hours provide a copy of all new keys to the Director. Every key should be marked or otherwise identify the purpose and/or location within the Leased Premises to which each key pertains. (e) No Pyrotechnic Devices. Operator 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. 13. INSURANCE, INDEMNITY,AND RELEASES. (a) Insurance and Proof of Insurance. Operator 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 Operator has obtained the following insurance coverages. Operator 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 Operator may have no employees as defined under said Act or that Operator 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 Operator performing work at the Leased Premises irrespective of whether such employees may be shareholders, managers, partners, or owners of Operator or exempt employees under the Act. If any class of employees engaged in hazardous work under this Agreement at the Leased Premises in not protected by the Workers' Compensation statute,the Operator 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 Operator with respect to all work and events performed by Operator and its subcontractors under this 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 Operator 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 Operator 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 Operator.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, ten (10) days prior to any formal action being taken in the event that any such policy or coverage will be revoked, terminated, rescinded, or lapse. (c) Releases and Claims Waiver. Operator 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 Operator, 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) Operator Covenants Not to Sue. Operator 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 Operator, 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) Operator Indemnifies. Except for the City's gross negligence and willful misconduct, Operator shall indemnify, defend and hold harmless the Released Parties against any liability for any damages,attorney's 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 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. (0 Operator Must Obtain Releases from Third Parties.Prior to entering the Park on any Operator Event day, all Operator 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 Operator personnel and all executed Release Agreements shall be maintained and kept on file by Operator 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. Operator's obligation to maintain these records and provide them to the City upon request shall survive termination or expiration of this Agreement. Operator shall bear sole responsibility for full compliance with this Section. Entry into the Park by any Operator employee, agent, or event participant 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 Operator. 14. IMPROVEMENTS. (a) Operator Fuel Storage Facility. If Operator 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 Operator 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. The parties agree that Operator shall have the right to make improvements or other alterations to the Leased Premises. Operator shall have the right to offset or reduce the next payment of Base Rent due under this Agreement, for pre-approved costs associated with the development, installation, and construction of any improvements. The costs may offset or reduce only the next payment of Base Rent due. Should this Agreement be terminated for any reason prior to the date of its expiration, City shall not refund to Operator the cost of improvements. Operator shall submit to City a written proposal for all proposed improvements that includes the estimated value of the improvements and the anticipated cost of development, installation, construction, and maintenance. Operator must obtain the prior written approval of the Director and Mayor for any proposed improvements and a certificate from the Pueblo Regional Building Department approving any proposed improvements. 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. Except as otherwise provided in this Agreement, Operator shall maintain the improvements in good and safe condition, appearance and state of repair,regardless of the cause or need for maintenance and repair. All offsets or reductions in rent must be mutually agreed upon by Operator,Director,and Mayor and be reduced to a writing signed by both Parties prior to any work being performed. To receive a reduction or offset, Operator must submit a copy of a final invoice and proof of payment to Director in order to receive credit for any reduction in rent. If an improvement is not performed or completed, or Operator's payment for the same is rejected, dishonored, or not completed for any reason, rent shall be paid according to the provisions in Section 5. (c) Improvements Become City Property Upon Termination of Agreement. All improvements and alterations shall become the property of the City at the option of the City upon termination or expiration of this Agreement. 15. MAINTENANCE OF ACCOUNTS AND RECORDS. Operator shall keep and maintain accurate and complete accounts and records of all activities and transactions conducted by Operator on or from the Leased Premises,including without limitation sales receipts, inventory lists,equipment logs,third party Release Agreements, purchase orders, payroll, financial records, tax returns and bank statements, or any subcontractor contracted by Operator to work, manage, or operate all or a portion of the Leased Premises, in accordance with generally accepted accounting principles, which accounts and records shall be available for inspection, copy and audit by City during normal business hours. Operator shall, at least quarterly, submit financial reports evidencing profits, ticket sales, and any other financial information the Director requires. Operator shall retain all such accounts and records for a minimum period of three (3) years after termination of this Agreement. 16. INTELLECTUAL PROPERTY. This Agreement is solely for access to and use of the Leased Premises. Operator shall not photograph, film, or broadcast any Event or any part thereof without first obtaining the prior written consent of the City, except that Operator may post pictures and videos to the Pueblo Motorsports Park website and social media site so long as the same portray the City in a positive light. City reserves the right to remove or require the removal of any information, pictures, or videos from Operator's social media site if it determines, in its sole and absolute discretion, that the same do not positively portray the City or are misleading in any way. 17. 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 OPERATOR'S EVENTS OR FOR ANY PARTICULAR USE OR PURPOSE. Accordingly, Operator is hereby advised that Operator shall be solely responsible for personally inspecting the Leased Premises before execution of this Agreement and commencement of any Event. Operator's execution of this Agreement or commencement of any Event shall constitute an expressed acknowledgement by Operator that the Leased Premises is safe and adequate for Operator's permitted use. Operator 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 Operator, its employees, agents, independent contractors, subcontractors, and representatives,and persons engaged in any activity on the Leased Premises. Except as otherwise provided in this Agreement,the 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. 18. MINORS. No individual under the age of eighteen (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 Operator 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 Operator for three (3) years from the date of the Release Agreements. Originals and/or copies of the Release Agreements shall be delivered to the City upon request. Operator's obligation to maintain these records and provide them to the City upon request shall survive termination or expiration of this Agreement.Operator 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 Operator. 19. 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 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 Operator commits a breach of any term of this contract, City may terminate this Agreement upon thirty(30) days' prior written notice to Operator 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. (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. 20. 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 Mayor, City of Pueblo, #1 City Hall Place, 2' Floor, Pueblo, Colorado, 81003. (b) If to Operator: THORBURN LAW GROUP, LLC, 5460 South Quebec Street, Suite 310, Greenwood Village, Colorado 80111. 21. STATE-IMPOSED MANDATES PROHIBITING ILLEGAL ALIENS FROM PERFORMING WORK. (a) At or prior to the time for execution of this Agreement, Operator 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 Operator will participate in either the "E-Verify Program" created in Public Law 208, 104th Congress, as amended and expanded in Public Law 156, 108th 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) Operator shall not: (1) Knowingly employ or contract with an illegal alien to perform work under this Agreement. (2) Enter into an Agreement with a subcontractor that fails to certify to Operator 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) Operator 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) Operator 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 Operator obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien, Operator shall: A. Notify the subcontractor and the City's Purchasing Agent within three(3) days that Operator 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 Operator 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) Operator 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 Operator shall constitute a breach of Agreement and grounds for termination. In the event of such termination, Operator shall be liable for City's actual and consequential damages. (e) As used in this Section,the term"subcontractor"shall mean any subcontractor of Operator rendering services within the scope of this Agreement. 22. 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. (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,a declared national emergency,a pandemic and/or epidemic, floods,storms, lightning strikes,labor strikes,labor disputes,accidents,regulations or orders of civil or military authorities, shortages of labor or materials, or other causes, similar or dissimilar, which are beyond the control of such party. (c) Binding Effect. This 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,Counterparts,and Electronic Signature.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. This Agreement and all other documents contemplated hereunder may be executed using electronic signatures with delivery via facsimile transmission, by scanning and transmission of electronic files in Portable Document Format (PDF)or other readily available file format, or by copy transmitted via email, or by other electronic means and in one or more counterparts,each of which shall be: (i)an original,and all of which taken together shall constitute one and the same agreement, (ii) a valid and binding agreement and fully admissible under state and federal law, and(iii) enforceable in accordance with its terms (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 any Party to bring any action or proceeding to enforce the terms hereof or declare rights hereunder, the prevailing party shall be entitled to collect its reasonable attorney fees, costs of suit, and costs of collection as part of the judgment in such action or proceeding. (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, 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 reassigned by Operator 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/1 day of4 2021. SOUTH PRAIRIE AND O'NEIL ENTERPRISES,LLC CITY OF PUEBLO, A MUNICIPAL CORPORATION ieatasiediiii; By: Cr.4../":11e-i By: ea Name: 811014113 Nicholas A. radisar,Mayor Title: d WY1-e ATTEST: " \$ur r� 0..A.4141sb City Clerk APPROVED AS TO FORM: a/0----- AO City Attorney EXHIBIT "A" AREA MAP WITH MARKED PERIMETER DESIGNATING THE LEASED PREMISES, HONOR FARM MAP, RACE FACILITY MAPS I & II EXHIBIT "B" LIST OF CITY EQUIPMENT See itemized list attached hereto. EXHIBIT "C" REQUEST FOR PROPOSAL FOR PROJECT NO. 20-058 See materials attached hereto. EXHIBIT "D" CERTIFICATE OF INSURANCE See materials attached hereto. EXHIBIT "E" 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. Dated , 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.