HomeMy WebLinkAbout11779RESOLUTION NO. 11779
A RESOLUTION APPROVING A FACILITY USE/RACETRACK RENTAL
AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL
CORPORATION, ACTING BY AND THROUGH ITS HONOR FARM
PROPERTIES ENTERPRISE, AND NEK ADVANCED SECURITIES GROUP,
INC. RELATING TO PUEBLO MOTORSPORTS PARK AND AUTHORIZING
THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that
SECTION 1:
The Facility Use /Racetrack Rental Agreement dated December 28, 2009, between City of
Pueblo acting by and through its Honor Farm Properties Enterprise and NEK Advanced
Securities Group, Inc. relating to a recreational motorsports facility on a portion of the Honor
Farm Properties, a copy of which is attached hereto and having been approved as to form by the
City Attorney, is hereby approved.
Section 2:
The President of the City Council is hereby authorized and directed to execute said
Agreement for and on behalf of the City and the City Clerk is directed to attest same and affix
the Seal of the City thereto.
INTRODUCED: December 28, 2009
BY: Randy Thurston
COUNCILPERSON
APPR D' 40, �-
PkEglDENTof City Council
A77TSTED DY:
CITY CLEIRK
i
Background Paper for Proposed
RESOLUTION
AGENDA ITEM # Q -1
DATE: December 28, 2009
DEPARTMENT: OFFICE OF THE CITY MANAGER
JERRY M. PACHECO, CITY MANAGER
JENNY M. EICKELMAN, ASSISTANT CITY MANAGER
TITLE
A RESOLUTION APPROVING A FACILITY USE/RACETRACK RENTAL AGREEMENT
BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, ACTING BY AND
THROUGH ITS HONOR FARM PROPERTIES ENTERPRISE, AND NEK ADVANCED
SECURITIES GROUP, INC. RELATING TO PUEBLO MOTORSPORTS PARK AND
AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME
ISSUE
Should the City Council approve a Facility Use/Racetrack Rental Agreement with NEK for the Honor
Farm Properties Enterprise dba Pueblo Motorsports Park?
Approval of the Resolution
BACKGROUND
NEK desires to conduct a significant number of motor vehicle training events at Pueblo Motorsports Park
during a three -year period commencing January 1, 2010, with the option for a fourth year. City
Administration and NEK have negotiated a customer rate for the use of the paved track and off -road dirt
areas for this purpose as contained in the Agreement. This Resolution will approve a rental agreement
between the City and NEK.
FINANCIAL IMPACT
Based on a minimum of 30 track rentals per year, NEK has the potential to generate between $96,750 and
$123,750 in revenue for the City in track rentals over the three -year period. NEK currently has
approximately 40 events scheduled in 2010. The Agreement also establishes a property rental rate for a
vehicle storage area within the motorsports facility to be used by NEK, which could generate an
additional $36,000 over the three -year period; however, the City may offer credit for certain authorized
improvements made to the facility by NEK, thus reducing the amount of property rental revenue received.
FACILITY USE/RACETRACK RENTAL AGREEMENT
This Agreement (the "Agreement ") is made and entered into this 28th day of December
2009, by and between the City of Pueblo acting by and through its Honor Farm Properties
Enterprise ( "City "), and NEK Advanced Securities Group, Inc. ( "NEK," and together with City,
each a "Party" and collectively the "Parties ").
WHEREAS, City is the manager and operator of the motorsports facility and racetrack
known as Pueblo Motorsports Park located at 3733 North Pueblo Boulevard, Pueblo, Colorado,
and
WHEREAS, NEK desires to conduct motor vehicle training events ( "Events ") on that
portion of the Pueblo Motorsports Park shown on the attached map as "NEK Rental Area" and
for purposes of this Agreement, such area is referred to as "Park," and
WHEREAS, City is willing to permit NEK to conduct Events at the Park.
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, City does hereby authorize and permit NEK to conduct Events at
the Park and NEK accepts the use of the Park for such purpose for a three -year period
commencing on January 1, 2010, and ending December 31, 2012, unless extended as provided in
Section 33, or earlier terminated as provided in Section 29, subject to the following terms and
conditions which City and NEK agree to and accept.
1. RENTAL FEES: A daily Rental Fee for the rental of the Park's paved track and off -
road dirt areas as further outlined below shall be paid by NEK:
Paved Track
$1,250 per day for the first 50 days, and standard customer rate thereafter, during 2010.
$1,375 per day for the first 50 days, and standard customer rate thereafter, during 2011.
$1,500 per day for the first 50 days, and standard customer rate thereafter, during 2012.
Off -road Dirt Areas for OHV Use
$950 per day for the first 50 days, and standard customer rate thereafter, during 2010.
$1,075 per day for the first 50 days, and standard customer rate thereafter, during 2011.
$1,200 per day for the first 50 days, and standard customer rate thereafter, during 2012.
(For purposes hereof "day" means 6:00 a.m. to 12:00 a.m. (midnight) and includes time
for an Event and Event set -up and tear- down.)
The daily rental fees specified above shall be applicable to a combined total of 50 days
paved track and off -road dirt areas during each calendar year. Rental fees for days in
excess of the combined total of 50 days per calendar year shall be at the standard
customer rate.
2. EVENT SCHEDULING: NEK understands and agrees that the primary purpose of the
Park is for public motorsports recreational activities and NEK shall have no priority in
scheduling Events during the period from April I through October 31 of each calendar year
(`Prime Dates "). Notwithstanding the foregoing, special accommodation will be given to NEK
for scheduling Events during non -Prime Dates when more than one week's advanced written
notice is given to City. City may attempt to reschedule other Renters to accommodate NEK's
requests for Prime Dates when at least two weeks' advance written notice is given to City, but
only to the extent, as determined by City, that such rescheduling satisfies the primary purpose of
the Park, other Renters, and City. City may accommodate NEK's requests to schedule Prime
Dates when those dates, as determined by City, are not otherwise reserved and they do not have
the potential to be reserved for other Renters.
3. NUMBER OF RENTAL DATES: NEK shall use the Park for a minimum of thirty (30)
days in each calendar year. If NEK uses the Park for less than thirty (30) days in any calendar
year, NEK shall pay additional rent in an amount equal to the number of days used less than
thirty (30) multiplied by the average of the daily rent for the Paved Track and the daily rent for
the Off -road Dirt Areas applicable during such calendar year. Additional rent shall be paid in
full on or before January 15 of the next calendar year.
4. COMBINED USE: If NEK uses both paved track and off -road dirt areas on the same
day, NEK shall pay only the paved track rate for that day.
5. CONDITION OF TRACK: A portion of each Rental Fee includes standard grooming
of the track by City, as determined by City, following NEK use and prior to the next scheduled
Event. NEK shall clean up any major debris left on the track or off -road dirt areas immediately
following each Event held by NEK. NEK is required to provide dust control during use, when
necessary, as determined by City.
6. REMITTANCE OF FEES: All Rental Fees are due within 10 days of the conclusion
of each Event. After 40 days, a late fee of $50.00 will apply. Interest shall accrue at the rate of
8% per annum on all Rental Fees past due for more than 40 days.
7. RELEASE AND WAIVER OF LIABILITY: Prior to entering the Park on any NEK
Event day, all persons MUST sign a Release and Waiver of Liability, Assumption of Risk and
Indemnity Agreement (`Release Agreement "). This Release Agreement must be signed in the
presence of NEK personnel and is required before entrance into the Park on any Event day. All
executed Release Agreements shall be delivered to City prior to the end of each Event. NEK
shall bear sole responsibility for full compliance with this Section. Entry into the Park by any
person during an Event day 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 NEK.
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S. CANCELLATION: NEK may cancel a scheduled Event upon 24 hours prior written
notice given to City and each party shall be released from all obligations with respect to the
Event. If NEK does not timely cancel an Event, NEK shall pay all rental fees NEK would have
paid if the Event had been completed and not cancelled, provided, that if NEK cancels an Event
due to the dangerous condition of the paved track or the off -dirt areas for OHV use, NEK shall
not be obligated to pay a rental fee for the Event.
9. NON - TRANSFERRABLE: With the sole exception of its subsidiaries and affiliates
and for the sole purpose of motor vehicle training, NEK shall not sublease, transfer, or assign to
any other party this Agreement without the prior written consent of City. Any attempt to
sublease, transfer, or assign this Agreement, or any of NEK's rights hereunder, without the prior
written consent of City is void and shall constitute a material breach of this Agreement by NEK.
In the event of any assignment, sublease or transfer, whether to a third party or to an NEK
subsidiary or affiliate, NEK shall not be released from any responsibility hereunder and shall
remain liable and responsible to City for such subleasee, transferee, or assignee and its activities
in accordance with the terms and conditions of this Agreement.
10. IMPROVEMENTS: Subject to the prior written approval by the City Manager of the
design, plans, specifications and designed area in the Park therefor, NEK may at its sole risk, (1)
store and safe -keep up to 70 training vehicles ( "Vehicle Storage Area "), (ii) install a paved skid
pad ( "Skid Pad "), (iii) install in an environmentally sound manner up to a 1,000 gallon above-
ground fuel storage facility for the purpose of fueling its training vehicles ( "Fuel Storage
Facility "), and (iv) exclusively occupy and make improvements, including, but not limited to
water line, ADA compliant access ramp, and fencing the entire area, to the existing single -wide
mobile classroom for the purpose of holding training sessions ( "Classroom ") (herein collectively
the "Improvements "). All costs associated with the development, installation, construction, and
maintenance of the Improvements shall be the sole responsibility of NEK. All Improvements
shall be constructed, installed, maintained, and operated in compliance with all local, state, and
federal laws and regulations. NEK shall maintain the Improvements in good and safe condition,
appearance and state of repair, regardless of the cause or need for maintenance and repair. Upon
expiration or early termination of this Agreement, NEK shall, at the option of City, by notice
given to NEK by City within 24 months after the expiration or termination of this Agreement,
remove the Vehicle Storage Area, Skid Pad and/or Fuel Storage Facility from the Park. In the
event of such removal, NEK shall restore the designated area as near as practicable to its original
condition. With respect to the Fuel Storage Facility, NEK shall remove, clean up, and remediate
all contamination caused by or resulting from the release, discharge, or spill of fuel and
indemnify, defend, and save harmless City and the Park therefrom. This indemnification
provision shall survive the expiration or termination of this Agreement. City shall have no
liability or responsibility in any manner for the Improvements or vehicles stored in the Vehicle
Storage Area; all such liability and responsibility shall be that of NEK alone. NEK is granted the
right to enter the Park at reasonable times on other than NEK Event days for the limited purpose
of accessing, maintaining, and using the designated areas and Improvements, provided, such
entry, access, and use shall not unreasonably interfere with the use of the Park and its facilities
by other persons and entities. Any such entry, access, and use shall be subject to the conditions
and provisions of this Agreement. In consideration of the use of the designated areas in the Park,
NEK shall pay additional monthly rent to City in the monthly amount of $750.00 during the first
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year, $1,000.00 during the second year and $1,250.00 during the third year, and $1,500 during
the Extended year, payable monthly in advance without notice, on the first day of each month
during the effective term of this Agreement, commencing January 1, 2010. In consideration of
actual costs incurred by NEK for the installation of the Skid Pad, and upon receipt by City of
documented proof that such costs were incurred, City shall apply credit by the same amount to
NEK toward monthly rent beginning on the date the Skid Pad is completed.
11. FENCING: On or before April 15, 2010, NEK shall coordinate and install in accordance
with design, plan, specification, and location approved in writing by the City Manager,
approximately 600 linear feet of chain link fencing around City's maintenance facility area and
privacy fencing around the designated Vehicle Storage Area. In consideration of actual costs
incurred by NEK for the installation of said fencing, and upon receipt by City of documented
proof that such costs were incurred, City shall apply credit by the same amount to NEK toward
monthly rent beginning on the date the fencing is completed.
12. PROHIBITED USES: NEK understands and agrees that this Agreement is solely for
access to and use of the Park. NEK SHALL NOT photograph, film, or broadcast any Event or
any part thereof without a separate written agreement authorizing such activities. In addition, no
footage or images obtained from City access granted herein may be reproduced, sold, broadcast,
commercially exploited, or distributed without a separate written license agreement authorizing
such use. NEK understands and agrees that this Agreement and NEK's use of the Park 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 ").
NEK acknowledges receipt of a copy of the Easement. City makes no representation or warranty
that NEK's intended use of the Park or the provisions of this Agreement are approved uses or
allowed under the Easement.
13. CERTIFICATE OF INSURANCE: Upon execution of this Agreement but in no event
less than seven (7) days prior to the first scheduled Event of each year, NEK shall provide City a
Certificate of Insurance showing evidence of liability coverage for bodily injury and property
damage including contractual coverage with a combined single limit of not less than Five Million
Dollars ($5,000,000.00) per occurrence, with a Five Million ($5,000,000.00) annual aggregate,
and shall be endorsed to add as additional insureds the City of Pueblo and the City of Pueblo
acting by and through its Honor Farm Properties Enterprise and their officers, employees, and
agents, (collectively, the "Indemnified Parties "). Such policies shall state that the insurance is
primary in coverage to any other insurance which may be available to City. Concurrent with the
above mentioned Certificate of Insurance evidencing liability coverage, NEK or the applicable
employer shall also provide City a Certificate of Insurance showing evidence of statutory
workers' compensation insurance and shall contain an endorsement waiving subrogation against
both the City of Pueblo and the City of Pueblo acting by and through its Honor Farm Properties
Enterprise. Workers' compensation coverage shall be obtained notwithstanding that NEK may
have no employees as defined under said Act or that NEK 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 NEK performing work at the Park irrespective of whether such
employees may be shareholders, managers, partners, or owners of NEK or exempt employees
under the Act. NEK may purchase, for non - statutory employees, a participant accident insurance
policy which would include death, disability, dismemberment, and medical benefits. Any
independent contractors of NEK shall be covered under NEK's workers' compensation insurance
and/or participant accident insurance policy or show evidence that said independent contractor is
covered under its own workers' compensation insurance policy. NEK shall have full and sole
responsibility for ensuring compliance with this Section, including without limitation
indemnification pursuant to Section 14. All insurance policies required hereunder shall provide
that such policies not be cancelled or reduced without thirty (30) days' advance written notice to
the Indemnified Parties. Failure of NEK to comply with the provisions of this Section shall
constitute a material breach of this Agreement by NEK.
14. INDEMNIFICATION: NEK agrees to be responsible for, to hold harmless, indemnify,
and defend each of the Indemnified Parties from any and all claims, including reasonable
attorney's fees and costs, of liability whether by reason of injury to or death of the person or of
damage to the property of another or otherwise arising in connection with any use of the Park by
NEK, or any default or breach of any term of this Agreement by NEK, excepting only claims
based on the Indemnified Parties' negligence, bad faith, or intentional acts. The Indemnified
Parties shall have the right to retain their own counsel, in which case those reasonable attorney
and expert fees and costs shall be covered by NEK's indemnification obligation in this Section.
This Section shall survive termination or expiration of this Agreement for a period of six (6)
years; provided, however, that this Section shall survive termination or expiration of this
Agreement for a period of ten (10) years for any claims otherwise covered by this Section that
are brought by minors.
15. PROPERTY USE AND DAMAGE: NEK shall maintain a clean and safe activity area
throughout each Event and, upon completion of each Event, except for standard grooming of the
paved track as provided in Section S, NEK shall repair and restore the Park and all its tracks and
facilities to the same condition in which it was received by NEK. NEK shall repair any and all
damages to the Park (including without limitation any resources, facilities, premises, or property
of City or the Park) caused by or attributable to NEK's activities, and City or its designee shall
be the sole judge of the extent of such damage and the adequacy of any repairs or restoration.
No physical alteration to the Park (including without limitation installation or modification of
new or existing structures, alteration of any trees or other plants, and disturbance of any ground
surface or cover) may be made without City's prior written consent.
16. UNSAFE OR UNLAWFUL CONDUCT: Notwithstanding any provision herein to the
contrary, City or its designee shall have the sole discretion to terminate any activity permitted
hereunder when such action is deemed necessary or appropriate for the safety of lawful users of
the Park, for the protection of the Park or resources or equipment of City, or for the prevention of
a violation of any local, state, or federal law or regulation or the Easement relating to or arising
out of the use of the Park or any activity permitted hereunder.
17. SCHEDULING: Circumstances, including without limitation changes in City's other
scheduled motorsports activities or events or resurfacing of or other work on the Park, may
necessitate a revision to an existing schedule of Events, which the Parties hereby agree to work
together in good faith to address. The Parties acknowledge and agree that any revisions to the
schedule of Events by City shall not constitute a breach or default of this Agreement.
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18. NO REPRESENTATION OR WARRANTY OF CONDITION OR FITNESS:
PARK 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 PARK FOR NEK'S EVENTS OR FOR ANY PARTICULAR USE OR PURPOSE.
Accordingly, NEK is hereby advised that NEK shall be solely responsible for personally
inspecting the Park before execution of this Agreement and commencement of any Event.
NEK's commencement of any Event shall constitute an expressed acknowledgement by NEK
that the Park is safe and adequate for NEK's permitted use. NEK shall have exclusive control of
the Park during its Events and shall be responsible for all equipment, except City's motorized
equipment when operated by City employees, and for adequate safeguard for the protection of
NEK, its employees, agents, and representatives, and persons engaged in an Event.
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 Park 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. NEK's sole remedy if the Park, its tracks or facilities
are not maintained in good and safe condition, appearance or state of repair is to terminate this
Agreement.
19. RELATIONSHIP: Nothing in this Agreement is intended to, or shall be deemed to
constitute, a partnership or joint venture between the Parties, or to create any agency or partner
relationship between the Parties. Neither Party shall hold itself out as a partner, joint venture,
agent, or representative of the other under this Agreement.
20. INTELLECTUAL PROPERTY: NEK shall NOT use any name, trademark, service
mark, or logo of City including the name "Pueblo Motorsports Park" for any purpose, without
the prior review of all proposed uses by NEK and the expressed prior written consent of City, as
the case may be. Notwithstanding the foregoing, NEK may use the official name of the Park in
accurate and truthful advertising solely as a means for identifying the location of an Event.
21. JURISDICTION/VENUE: This Agreement and all rights and obligations of the Parties
shall be construed and governed in accordance with the laws of the State of Colorado. With
respect to any claims or litigation associated in any manner with or arising out of this
Agreement, the Parties agree to submit to the exclusive personal jurisdiction of the District Court
in and for Pueblo County, Colorado. Exclusive venue for any such litigation shall be Pueblo
County, Colorado. In the event of litigation regarding the terms and conditions of this
Agreement, the prevailing Party shall be awarded reasonable attorney's fees and costs.
22. TRACK REQUIREMENTS: NEK acknowledges and agrees that all applicable local,
state, and federal laws and regulations, and the track requirements set forth herein, including all
Exhibits attached hereto and incorporated herein, are binding obligations of NEK and shall
govern the permitted uses of the Park by NEK and its agents, employees, representatives, and
contractors.
23. MINORS: No individual under the age of 18 years shall be allowed during any Event
day in any restricted area of the Park (which shall include the track surface, pit areas, garage
areas, run -off areas, trackside communications stations, and any other location as defined in
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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. These documents must be
signed in the presence of NEK personnel and are required before said minor's entrance into the
Park. All executed documents shall be delivered to City prior to the end of each Event. NEK
shall bear sole responsibility for full compliance with this Section. Entry by any individual
during an Event day 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 NEK.
24. OTHER ACTIVITIES: Any activities to be conducted in the Park during NEK's use of
the Park (including without limitation food service or catering, entertainment, product or
merchandise sales, press conferences, or other commercial or professional activities) must be
approved in advance in writing by City, and shall be subject to the requirements, conditions, and
fees established by City. All individuals engaging in such activities shall be required to execute
a Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement in accordance
with Sections 7 and 23 above.
25. RIGHT TO REFUSE ACCESS: City may, at City's sole discretion, deny access to, or
remove from, the Park any individual(s) who are disruptive, fail to obey any lawful order, or fail
to comply with any covenant or provision of this Agreement.
26. ENTIRE AGREEMENT: This Agreement, including all Exhibits attached hereto,
contains the entire agreement of the parties relating to the subject matter contained herein. There
are no promises, terms, conditions, rights, or obligations other than those contained herein. This
Agreement shall supersede all previous communications, representations, or agreement, whether
verbal or written, between the parties.
27. COLORADO GOVERNMENTAL IMMUNITY ACT: No term, provision or
condition of this Agreement shall be construed or interpreted as a waiver, either express or
implied, of any immunities, rights, benefits or protections provided or available to City, its
officers and employees under applicable law, including, without limitation, those provided and
available to City and its officers and employees under the Colorado Governmental Immunity
Act, §24 -10 -101, et seq., C.R. S., as amended or as may hereafter be amended.
28. THIRD PARTIES. Notwithstanding anything in this Agreement to the contrary, NEK
agrees that City is not liable or responsible for the acts or omissions of the exclusive vendors,
preferred vendors, security personnel or other third parties made available by or through City, at
City's sole option, to NEK under this Agreement at NEK's request ( "Third Parties "). NEK
agrees that the Third Parties are independent contractors made available by City solely for the
benefit of and as an accommodation to NEK and no contractual, tort or other liability results
from or arises out of City making or failure to make the Third Parties available to NEK.
29. TERMINATION AND DEFAULT. If either party is in default hereunder, the non -
defaulting party may give written notice describing the default to the defaulting party. If the
defaulting party does not correct such default within twenty (20) days after receipt of said notice,
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or if the default cannot be corrected within said 20 -day period and the defaulting party fails to
commence action to correct the default within said 20 -day period and thereafter diligently
pursues corrective action, the non - defaulting party may upon an additional five (5) days' notice
given to the defaulting party terminate this Agreement. Notwithstanding the foregoing, if NEK
commits a material breach as defined in Sections 7, 12 and 22, City may terminate this
Agreement upon five (5) days' prior written notice to NEK specifying the material 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.
30. 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, City of Pueblo, 1 City Hall Place, Pueblo, Colorado, 81003, Attention:
City Manager, or
(b) If to NEK: NEK ASG, 110 S. Sierra Madre, Colorado Springs, Colorado, 80903,
Attention: Mark Marchant.
31. STATEMENT OF TRADE NAME. Front Range Motorsports, Inc. ( "Front Range ") on
October 29, 2009, filed its statement of trade name in the records of the Colorado Secretary of
State to transact business under the trade name "Pueblo Motorsports Park" ( "Statement of Trade
Name "). Front Range hereby confirms and ratifies City's use for any and all purposes of the
name "Pueblo Motorsports Park." Front Range shall within twenty (20) days after execution of
this Agreement by the Parties withdraw its Statement of Trade Name pursuant to Section 7 -71-
106, C.R.S. and assign and transfer to City all its right, title, and interest in and to the name
"Pueblo Motorsports Park" and all assets Front Range acquired from Pueblo Motorsports, Inc.
This Agreement shall not be deemed to be in effect and shall terminate if Front Range fails to
timely comply with the covenants of this Section.
32. MISCELLANEOUS PROVISIONS.
32.1 No assent, express or implied, by City to any breach of default by NEK in the
performance of any one or more of the covenants hereof shall be deemed or taken to be a waiver
of any succeeding breach of or default in the same or different covenant.
32.2 All financial obligations of City under this Agreement are subject to and
conditioned upon funds for such purpose being budgeted, appropriated, and otherwise made
available.
32.3 The person executing this Agreement on behalf of NEK warrants and represents
that he and NEK have been duly authorized by all appropriate and necessary action to execute
this Agreement and this Agreement is a valid and binding obligation of NEK enforceable in
accordance with its terms.
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33. OPTION TO EXTEND. If NEK is not in default hereunder, NEK shall have the option
to extend this Agreement for an additional period of one (1) year from January 1, 2013, to
December 31, 2013, upon the same terms and conditions, except:
(a) Rental Fees shall be:
Paved Track
$1,625.00 per day for the first 50 days, and standard customer rate thereafter,
during 2013.
Off -Road Dirt Areas for OHV Use
$1,325.00 per day for the first 50 days, and standard customer rate thereafter,
during 2013.
(b) NEK shall have no option to extend this Agreement after December 31, 2013.
IN WITNESS WHEREOF, the Parties hereto have executed and delivered this Agreement as of
the date first written above.
NEK ADVANCED SECURITIES GROUP, CITY OF PUEBLO ACTING BY AND
INC. THROUGH ITS HONOR FARM
PROPERTIES ENTERPRISE
By: �� ems• %r laws
Print Name: M ARK G'0A,ea44j By: -
Title: 46r/E9A-t A Title: O C v., r
Executed this day of a&;< 2009, for the sole purpose of
Section 31 of the foregoing Agreement
FRONT ANGE MOTORSPORTS, INC.
By
Print Name: Ageo J 1 mwec.
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EXHIBIT I
FACILITY RENTAL RULES AND REGULATIONS
We want to welcome you to the Honor Farm Properties Enterprise Motorsports Park. The
following are general rules and informational items that will aid in making your visit enjoyable
and will assist our personnel in better serving your needs. If you have any questions or problems
during your visit, please contact our staff for assistance.
• All vehicle driver safety equipment which is standard in the industry or required by
applicable liability insurance shall be in full and effective use at all times.
• Do not drive stakes into the ground or into the asphalt. Underground utilities are
everywhere and there will be a charge for utility or asphalt repair.
• Please keep the speed of all vehicles to 10 MPH or lower when not on the actual race
track surface.
• Marked trash barrels are located in the designated area for your convenience. Please
assist us in keeping the Park clean by using these barrels.
• All parking attendants, if necessary, shall be the sole responsibility of NEK.
We hope your visit to the Honor Farm Properties Enterprise Motorsports Park is enjoyable and we wish
you the best of luck!
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EXHIBIT II
HONOR FARM PARK & OPEN SPACE
NEK LEASE AREA
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AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL
CORPORATION, AND NEK, INC. FOR THE USE OF CERTAIN FACILITIES AT
PUEBLO MOTORSPORTS PARK
This Agreement ( "Agreement ") between the City of Pueblo acting by and through its
Honor Farm Properties Enterprise ( "City "), and NEK Advanced Securities Group, Inc. ( "NEK ")
RECITALS
WHEREAS, NEK desires to conduct motor vehicle training events at the Park; and
WHEREAS, City is willing to enter into this Agreement to permit NEK to conduct such
business at the Park in accordance with and subject to the terms and conditions of this
Agreement.
WHEREAS, this new Agreement constitutes a minor amendment to the Previous
Agreement within the meaning of §1- 5 -2(f) Pueblo Municipal Code, as amended, because it does
not significantly increase the City's obligations. Therefore, the City Manager has authority to
execute the same. This Agreement is executed as a new Agreement rather than as an amendment
to the Previous Agreement simply as a means of creating one unified, clean and comprehensive
document that is easier to read and understand than maintaining the Previous Agreement in place
and adopting a mynad of minor amendments.
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. For purposes of this Agreement, the following terms shall have the
following meanings.
Day. means 6.00 a.m. to 12.00 a.m. (midnight) and includes time for an Event and Event
set -up and tear -down.
Park. means the Pueblo Motorsports Park, located at 3733 North Pueblo Boulevard,
Pueblo, Colorado 81008
Previous Agreement: means the Facility Use /Track Rental Agreement the parties
previously entered on December 28, 2009 and which was approved in City Council Resolution
No 1179 A copy of the Previous Agreement is attached as Exhibit A.
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2. EXHIBITS TO AGREEMENT
(a) The following exhibits are attached and incorporated as part of this Agreement:
Exhibit A. Previous Agreement
Exhibit B Drawing of Rental Areas
Exhibit C Facility Rental Rules and Regulations
(b) In the event of any conflict between the terms of this Agreement and any Exhibit
made a part of this Agreement, the documents shall control and take precedence over one another
in the order shown in subsection (a) of this Section, except that Terms and Conditions of this
Agreement shall take precedence and control over all Exhibits.
3. PREVIOUS AGREEMENT TERMINATED
(a) The Previous Agreement is hereby terminated effective June 27, 2011, and all
rights and obligations under the Previous Agreement shall cease effective that date, except as
otherwise provided in this Agreement.
(b) NEK and City of Pueblo shall continue to fulfill all obligations under the Previous
Agreement between the date this Agreement is signed by all parties and June 27, 2011
(c) The Parties waive any requirement in the Previous Agreement requiring notice of
termination and any other requirement, procedure, or method for termination of the Previous
Agreement.
(d) Each Party releases the other from any and all claims arising from the Previous
Agreement, except past rent, taxes, and other matters provided in this Agreement.
(e) The provisions of the Previous Agreement pertaining to insurance,
indemnification, and release of claims and suits are not subject to the foregoing release of claims
arising under the Previous Agreement, shall survive termination of the Previous Agreement, and
shall continue in effect for a period of three years following the termination of the Previous
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.
(f) The termination of the Previous Agreement shall not affect this Agreement or any
duty, obligation, or claim under this Agreement.
4. TERM.
(a) The Term of this Agreement shall be one year (1) year commencing June 27,
2011 and ending June 26, 2012 ( "Term ") unless sooner terminated pursuant to the terms of this
Agreement.
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(b) City shall have the option to extend the term of this Agreement for an additional
three (3) incremental terms of one year each by giving NEK written notice of its intention to do
so at least thirty (30) days before the expiration of the preceding term. If the City extends this
Agreement at the conclusion of the original term of this Agreement ending June 26, 2012, or at
the end of the first one year extension thereof, ending June 26, 2013, the onginal fee structure in
this Agreement shall remain in place at current rates for each such extended term. If this
Agreement is extended for a third one year tem commencing June 27, 2013 all fees in this
Agreement must be renegotiated.
5. CERTAIN USES OF CERTAIN AREAS WITHIN PARK GRANTED.
(a) Paved Track. NEK may use the Paved Track as shown in Exhibit B, subject to
the terms, conditions, limitations, and scheduling in this Agreement, for pursuit, escape, and
evasion training, and other automotive events. NEK shall not dnve off of this track on to
bordenng areas. NEK shall not use the return road as a braking maneuver area, but may conduct
braking maneuvers in the staging lanes near the main tower
(b) Off Road Dirt Areas. NEK may use the Off -road Dirt Areas shown in Exhibit B
subject to the terms, conditions, limitations, and scheduling in this Agreement.
(c) Classrooms. NEK may use the classrooms shown in Exhibit B as "Trailer,"
subject to the terms, conditions limitations, and scheduling in this Agreement.
(d) Storage of Vehicles. NEK may at its sole risk, store up to 70 training vehicles in
the Vehicle Storage Area shown on Exhibit B, provided that all vehicles, working or not, are
stored within the fenced Vehicle Storage Area shown in Exhibit B NEK shall not store any
tires, vehicles or any equipment outside of their designated fenced area. NEK shall provide its
own trash dumpster and shall arrange for regular dumping so as the dumpster is not overflowing
with trash. NEK shall not store items in their fenced area where they become a fire hazard. The
City of Pueblo Fire Department based on fire code, shall determine whether NEK's fenced
storage area is a fire hazard. NEK shall move its 5 wheel trailer to an area that is acceptable to
the PMP Track Manager
(e) Pushing and Ramming Vehicles. NEK may push and ram vehicles in the area
designated in Exhibit B, provided that the vehicles pushed or rammed have all four (4) tires in
place and are not pushed or rammed on bare rims.
(f) Fuel Storage Area. NEK may use the NEK Fuel Storage Area shown in Exhibit
B, provided that NEK maintains the same as provided in this Agreement.
(g) NEK Access to Rented Areas at Unscheduled Times. NEK may enter the Park
at reasonable times on days other than scheduled NEK Event days for the limited purpose of
accessing, maintaining, and using the classroom, provided that such entry, access, and use shall
not unreasonably interfere with the use of the Park and its facilities by other persons and entities.
NEK shall not cross the hot track when a race is in progress. NEK shall not use either the paved
track or off -road dirt areas on non - scheduled days. If NEK wishes to access the Park on a non-
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scheduled day, NEK must communicate with its sub - contractors /instructors to ensure that all
NEK staff /subcontractors wishing to be on site contact the Park Manager to schedule an entry
time This is extremely crucial on racing days as NEK is never to cross a hot track (racing track
in progress) NEK must always coordinate with the Park Manager related to entry whether it is a
race day or not, especially if they wish to use the track or off -track areas on an unscheduled day
NEK must contact the Park office at least three (3) days prior to being on site on scheduled race
days. If NEK's subcontractors do not follow the City's requirement to schedule and make
arrangements for entry with the PMP track NEK they may be denied access. If the
subcontractors /instructors become belligerent, argumentative and/or threatening to PMP staff,
NEK is required to replace these instructors with persons willing to follow procedures and rules.
Any entry, access, and use by NEK's subcontractors shall be subject to the conditions and
provisions of this Agreement.
(h) Other Activities and Uses by Special Approval Only NEK shall not make any
other uses or conduct any other activities anywhere in the Park, including but not limited to other
race activities, automotive activities, food service or catering, advertising entertainment, product
or merchandise sales, press conferences, or other commercial or professional activities
whatsoever, unless NEK first obtains in writing permission from the Director specifically
authorizing the use or activity and designating the time, place, manner, and fees for such activity
or use.
6. MAINTENANCE OF TRACKS, CLASSROOM AND STORAGE AREAS.
(a) Maintenance and Use of All Areas. NEK shall use and maintain the areas
designated above 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 or Park Manager,
during each Event and at all times that any such areas are being used for storage, classes, or other
permitted uses, inspection or entry
(b) Restoration to Previous Condition After Each Event. Except for standard
grooming which the City shall perform, NEK shall repair and restore the Park and all its tracks
and facilities to the same condition in which it was found within a reasonable time after each
NEK event not to exceed one (1) day, except for major damage which will be immediately
reported to the Park Manager NEK shall clean up all glass and screws after each event to ensure
there is no risk of damage to other driver /users. NEK shall repair any and all damages to the
Park including without limitation any resources, facilities, premises, or property of City or the
Park, caused by or attributable to NEK's activities, and City or its designee shall be the sole
judge of the extent of such damage (based on a co- NEK/City inspection conducted prior to each
event) and the adequacy of any repairs or restoration. No physical alteration to the Park
(including without limitation installation or modification of new or existing structures, alteration
of any trees or other plants, and disturbance of any ground surface or cover) may be made
without City's prior written consent.
(c) Major Debris. NEK shall clean up any major debris including but not limited to
metal, tires, glass, nuts and bolts and other matter left on the track or off -road dirt areas caused
by NEK immediately following each Event held by NEK.
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(d) Dust Control. NEK shall provide dust control during 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 City water trucks to spray the tracks at a cost to NEK of $150 per day
when using off -road areas.
(e) Fluid Spills. NEK shall immediately clean up oil spills or any other fluid spills
on Park property, including but not limited to the tracks, pits and staging areas. NEK shall
coordinate with on -site City maintenance crew to establish what chemicals or other items are
required to clean up oil spills.
( Inspection and Additional Cleaning by City After NEK has completed
cleaning the areas it has used after an NEK Event, the City may inspect the same, and if any
additional cleaning is necessary, including but not limited to fluid spills, major debris, screws
and glass or having to add additional reinforcement dirt to areas that have been run over, NEK
shall immediately clean as necessary to avoid the need for additional cleanup by City If NEK
fails to make the necessary clean up NEK shall pay the City for such additional clean up at $50
per hour plus supply costs such as reinforcement dirt and track chemicals.
7 RENT AND OTHER CHARGES. NEK shall pay to the City the following rental fees
and charges for use of the following portions of the Park or the following activities.
(a) Paved Track:
$1,375 per day for the first 50 days, and standard customer rate thereafter, during 2011
$1,500 per day for the first 50 days, and standard customer rate thereafter, during 2012.
(b) Off - road Dirt Areas for OHV Use:
$1,075 per day for the first 50 days, and standard customer rate thereafter, during 2011
$1,200 per day for the first 50 days, and standard customer rate thereafter, during 2012
(c) Combined Usage (Track and OHV Use)
$1,375 per day for the first 50 days, and standard customer rate thereafter, during 2011
$1,500 per day for the first 50 days, and standard customer rate thereafter, during 2012
(d) For purposes of this section. "day" means 6 a.m. to 12.00 a.m. (midnight)
and includes time for an Event and Event set -up and tear -down. The daily rental fees specified
above shall be applicable to a combined total of 50 days paved track and off -road dirt areas
during each calendar year Rental fees for days in excess of the combined total of 50 days per
calendar year shall be at the standard customer rate NEK agrees to rent the track for a minimum
of 40 days per year and shall be charged for any days below the 40 -day threshold, at the rate of
$1,225 per days.
(e) Classroom and Storage Area. $1,000 per month for rental of either or both the
classroom and the Vehicle Storage Area shown in Exhibit B Rental fees for the classroom and
Vehicle Storage Area are in addition to all other rental fees in this Agreement.
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( Combined Use. Each rent and charge is independent and separate from every
other rent and charge NEK shall pay rent for the classroom and storage area whether or not
either track is used at the same time.
(g) Water Truck. NEK shall pay City $150 per day when using off track/OHV
areas at $150 per day City is responsible for providing staff to water track prior to NEK event.
(h) Moving Disabled Vehicles from Track to Vehicle Storage Area. City towing
of disabled vehicles from any track or other area to the Vehicle Storage at NEK's request: $50
per vehicle.
(i) Rent and Charges Due, Late Fees, Interest. All rent and charges are due ten
(10) days after the conclusion of each Event. If Rental Fees not paid within 40 days after the
Event, NEK shall pay to City a late fee of $50 00 in addition to the Rental Fees. Interest shall
accrue at the rate of 8% per annum on all Rental Fees not paid within 40 days.
(i) Credit Against NEK Rent. The City hereby grants NEK a credit against rent
and all other charges due to the City under this Agreement in the amount of $26,974 50 for
fencing that NEK has already constructed at the Park under the Previous Agreement and to
which NEK was entitled under the Previous Agreement. In the event that this Agreement is
terminated or expires and NEK has not already received full credit for this sum against rent and
other charges at the time of such termination or expiration, City shall refund the uncredited
balance of this sum to NEK within 45 days of such termination or expiration.
8. UTILITIES.
(a) City will pay for all electric and water utilities at all areas rented under this
Agreement.
(b) City will pay all utilities for the Classroom facility shown on Exhibit A, including
electric, water, and propane gas.
(c) NEK shall provide for and pay for all trash service at all of the areas it rents under
this Agreement
9 EVENT SCHEDULING
(a) NEK understands and agrees that the primary purpose of the Park is for public
Motorsports recreational activities and NEK shall have no priority in scheduling Events during
the period from March 1 through October 31 of each calendar year ( "Prime Dates ")
Notwithstanding the foregoing, special accommodation will be given to NEK for scheduling
Events during non -prime Dates when more than one week's advanced written notice is given to
City
(b) City may attempt to reschedule other Renters to accommodate NEK's requests for
Prime Dates when at least two weeks' advance written notice is given to City, but only to the
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extent, as determined by City, that such rescheduling satisfies the primary purpose of the Park,
other Renters, and City
(c) City may accommodate NEK's requests to schedule Prime Dates when those
dates, as determined by City, are not otherwise reserved and they do not have the potential to be
reserved for other Renters.
(d) Circumstances, including without limitation changes in City's other scheduled
Motorsports activities or events or resurfacing of tracks or other work at the Park may necessitate
a revision to an existing schedule of Events, which the Parties hereby agree to work together in
good faith to address. The Parties acknowledge and agree that any revisions to the schedule of
Events by City shall not constitute a breach or default of this Agreement.
(e) City shall schedule all NEK requests, NEK must re- schedule any dates that they
have not definitely booked if City has another customer requesting the date.
(f) NEK may cancel a scheduled Event upon 48 hours prior written notice given to
City and each party shall be released from all obligations with respect to the Event. If NEK does
not give at least 48 hours prior wntten notice, NEK shall pay all rental fees NEK would have
paid if the Event had been completed and not cancelled. If NEK cancels an Event due to
dangerous weather conditions that have a negative impact on the paved track or the off -dirt areas
NEK shall not be obligated to pay a rental fee for the Event.
10. CONSERVATION EASEMENT, KEYS, REMOVAL OF PROPERTY UPON
TERMINATION, PYROTECHNICS, OFF -ROAD DRIVING
(a) Conservation Easement. NEK understands and agrees that this Agreement and
NEK's use of the Park 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 "). NEK acknowledges receipt of a copy of the Easement. City makes no
representation or warranty that NEK's intended use of the Park or the provisions of this
Agreement are approved uses or allowed under the Easement.
(b) Keys. NEK must provide access per city request to the modular classroom trailer
it uses to the PMP Track Manager In the event that NEK changes any locks to any buildings,
gates, or facilities NEK must immediately provide copies of the keys to the Track Manager
(c) Removal Upon Termination. Upon termination of this Agreement, NEK shall
remove the vehicles in their fenced Vehicle Storage Area as well as their Fuel Tank Area. In the
event of such removal, NEK shall restore the designated area as nearly as practicable to its
original condition. With respect to the Fuel Storage Facility, NEK shall remove, clean up, and
remediate all contamination caused by or resulting from the release, discharge, or spill of fuel
and indemnify, defend, and save harmless City and the Park therefrom. City shall have no
liability or responsibility in any manner for the improvements or vehicles stored in the Vehicle
Storage Area, all such liability and responsibility shall be that of NEK alone.
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(d) No Pyrotechnic Devices NEK 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 PMP Track Manager NEK may use
shotguns filled with blank cartridges to simulate combat experiences.
(e) Off Paved Track Driving. NEK shall not drive vehicles off of the paved track as
this causes damage to the edges of the track and forces Park staff to use time and financial
resources to back -fill corners. Park will charge NEK for any backfill dirt that may be needed to
fix damaged areas due to NEK's driving off of the track. NEK and Park staff will both fill out
pre - inspection track reports, to include digital photos to verify prior damage and PMP will fill
out a post -use track report to include digital photos to verify post use damage
11 INSURANCE, INDEMNITY, AND RELEASES.
(a) Insurance and Proof of Insurance. NEK shall, within ten (10) days after this
Agreement is executed by both parties, obtain the following insurance coverages and provide to
the City the following Certificates of Insurance showing that NEK has obtained the following
insurance coverages. NEK shall maintain all such insurance coverages at all times during the
term of this Agreement:
(1) Workers' Compensation Insurance complying with statutory requirements
in Colorado and in any other state or states where the work is performed. The Workers'
Compensation Insurance policy shall contain an endorsement waiving subrogation against the
City
(2) Commercial General Liability Insurance issued to and covering the
liability of NEK, and naming the City of Pueblo and its officers and employees as additional
insureds with respect to all work and events performed by NEK and its subcontractors and
subcontractors under this Agreement, to be wntten on a Commercial General Liability policy
form CG 00 01, with coverage limits of not less than Five Million Dollars ($5,000,000 00) per
person and occurrence for personal injury, including but not limited to death and bodily injury,
and Five Million Dollars ($5,000,000 00) per occurrence for property damage This CGL policy
shall also provide coverage for contractual liability assumed by NEK under the provisions of this
Agreement.
(3) Comprehensive Automobile Liability Insurance effective during the period of
this Agreement, covering the liability of NEK, and naming the City of Pueblo and its officers
and employees as additional insureds 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 insurance shall include uninsured/underinsured
motorist coverage and shall protect the NEK 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 NEK.
(b) Notices to City in Policies. Every insurance policy and certificate of insurance
specified in subsection (a) of this Section shall contain a provision requiring the that Insuror shall
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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) NEK Releases and Waives Claims. NEK 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 City and its officers, employees, agents and independent contractors
('Released Parties ") in any court or tribunal, based on tort, statute, violation of civil nghts, or any
other legal theory, for any physical injury, psychological injury, death, or property damage or
loss that NEK 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) NEK Covenants Not to Sue. NEK 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 NEK 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) NEK Indemnifies. NEK 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 physical
injury, psychological injury, death, or property damage or loss that any such third person 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.
(f) NEK Must Obtain Releases from Third Parties. Prior to entering the Park on
any NEK Event day, all NEK employees, agents, participants, and guests MUST sign a Release
and Waiver of Liability, Assumption of Risk and Indemnity Agreement ( "Release Agreement ")
in the presence of NEK personnel and all executed Release Agreements shall be delivered to
City pnor to the end of each Event. NEK shall bear sole responsibility for full compliance with
this Section. Entry into the Park by any person dunng an Event day 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 NEK.
12. IMPROVEMENTS.
(a) NEK Fuel Storage Facility NEK shall maintain its above ground fuel storage
facility in compliance with city fire ordinances and regulations.
(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 NEK. All improvements must be approved in writing by the City prior to
making any physical alterations to the modular trailer Any proposed changes must meet all
building permit regulations and be constructed, installed, maintained, and operated in compliance
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with all local, state, and federal laws and regulations. NEK must obtain the prior written
approval of the Director for any proposed improvements and certificate from the Pueblo
Regional Building Department approving any proposed improvements. NEK 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, including all fences that NEK has constructed at the Park.
13. INTELLECTUAL PROPERTY This Agreement is solely for access to and use of the
Park. NEK 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 exploited, or
distributed without a separate written license agreement from the City authorizing such use.
Agreement.
14. NO REPRESENTATION OR WARRANTY OF CONDITION OR FITNESS.
PARK 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 PARK FOR NEK'S EVENTS OR FOR ANY PARTICULAR USE OR PURPOSE.
Accordingly, NEK is hereby advised that NEK shall be solely responsible for personally
inspecting the Park before execution of this Agreement and commencement of any Event.
NEK's commencement of any Event shall constitute an expressed acknowledgement by NEK
that the Park is safe and adequate for NEK's permitted use. NEK shall have exclusive control of
the rented areas of the Park during its Events, subject to the City's right of access, and shall be
responsible for all equipment and for adequate safeguard for the protection of NEK, its
employees, agents, and representatives, and persons engaged in an Event. 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 Park 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 NEK's sole remedy if the Park, its tracks or facilities are not maintained
in good and safe condition, appearance or state of repair is to terminate this Agreement.
15. MINORS. No individual under the age of 18 years shall be allowed during any Event
day in any restricted area of the Park (which shall include the track surface, pit areas, 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. These documents
must be signed in the presence of NEK personnel and are required before said minor's entrance
into the Park. All executed documents shall be delivered to City prior to the end of each Event.
NEK shall bear sole responsibility for full compliance with this Section. Entry by any individual
during an Event day 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 NEK.
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16. RIGHT TO REFUSE ACCESS. City may, at City's sole discretion, deny access to, or
remove from, the Park any individual(s) for any reason whatsoever NEK and its sub - contractors
shall comply with all track rules promulgated by the City, including not crossing a hot/live track.
If NEK does not make plans to be at the PMP on non - scheduled days, it may be denied access to
their rented areas due to safety concerns. NEK and it sub - contractors shall follow the rules of
this contract and are not to argue with PMP staff related to access defined under this contract.
NEK does have a right to enter its rented modular and fenced area at any time, but they are
required to coordinate access with the PMP Track NEK prior to any non - scheduled entry If
NEK subcontractors /instructors do not follow PMP rules and become belligerent, threatening or
aggressive, NEK shall replace them at PMP's request.
17 THIRD PARTY VENDORS. Notwithstanding anything in this Agreement to the
contrary, NEK agrees that City is not liable or responsible for the acts or omissions of Park
vendors, or other third parties agreed to and made available by or through City, at City's sole
option, to NEK under this Agreement at NEK's request ( "Third Parties ") NEK agrees that the
Third Parties are independent contractors made available by City solely for the benefit of and as
an accommodation to NEK and no contractual, tort or other liability results from or arises out of
City making or failure to make the Third Parties available to NEK.
18. 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 Material Breach. Notwithstanding the foregoing, if NEK
commits a material breach of this contract, City may terminate this Agreement upon thirty (30)
days' prior written notice to NEK specifying the matenal 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
(1) Any rent or charge more than 60 days overdue,
(2) Any activity that sets any portion of the Park on fire, caused by incendiary or
pyrotechnic devices not approved by Fire Dept. and PMP Operations Supervisor
(3) Any use of incendiary or explosive devices, and
(4) Any other matter declared to be a material breach under any other provision of
this Agreement.
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(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
19 NOTICE. Any notice required or permitted to be given hereunder shall be in wntmg and
delivered personally or by certified mail, postage prepaid, as follows
(a) If to City, City of Pueblo, 1 City Hall Place, Pueblo, Colorado, 81003, Attention.
City Manager, or
(b) If to NEK. NEK, 110 South Sierra Madre, Colorado Springs, Colorado, 80903,
Attention. Mark Marchant
20. STATE - IMPOSED MANDATES PROHIBITING ILLEGAL ALIENS FROM
PERFORMING WORK.
(a) At or prior to the time for execution of this Agreement (NEK 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 the NEK 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) NEK 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 NEK
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) The NEK 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) The NEK 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.
12
(3) If the NEK obtains actual knowledge that a subcontrator performing work
under this Agreement knowingly employs or contracts with an illegal alien, the NEK
shall.
A. Notify the subcontractor and the City's Purchasing Agent within
three (3) days that the NEK 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 the NEK 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) The NEK 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 the NEK shall constitute a breach of Agreement and
grounds for termination. In the event of such termination, the NEK shall be liable for City's
actual and consequential damages.
(e) As used in this Section, the term "subcontractor" shall mean any subcontractor of
NEK rendering services within the scope of this Agreement.
21 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, 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.
13
(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 pnor discussions and
wntten 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 of the breach of any
term or provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by either party
(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,
janrtonal fees, costs, or other sums due under this Agreement, to enforce any provision of this
Agreement, to recover damages for NEK'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.
(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 arse under this Agreement in any fiscal year after 2011, 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
14
(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 penod 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 NEK without the prior
wntten 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 ?8 'day
of Tune_ 2011
NEK ADVANCED SECURITIES GROUP, CITY OF ' ESL* INC
By / 1
Print Name N1t4� .V. L. tY1 P tLt4*T P By - 4 01
Jerry Pache r o , ity Manager
ATTEST
City rk
APPROVED AS TO FORM.
/71
City Attorney
15
EXHIBIT A (Previous Agreement)
FACILITY USE/RACETRACK RENTAL AGREEMENT
This Agreement (the "Agreement ") is made and entered into this 28th day of December
2009, by and between the City of Pueblo acting by and through its Honor Farm Properties
Enterprise ( "City "), and NEK Advanced Securities Group, Inc. ( "NEK," and together with City,
each a "Party" and collectively the "Parties ")
WHEREAS, City is the manager and operator of the motorsports facility and racetrack
known as Pueblo Motorsports Park located at 3733 North Pueblo Boulevard, Pueblo, Colorado,
and
WHEREAS, NEK desires to conduct motor vehicle training events ( "Events ") on that
portion of the Pueblo Motorsports Park shown on the attached map as "NEK Rental Area" and
for purposes of this Agreement, such area is referred to as "Park," and
WHEREAS, City is willing to permit NEK to conduct Events at the Park.
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, City does hereby authorize and permit NEK to conduct Events at
the Park and NEK accepts the use of the Park for such purpose for a three -year penod
commencing on January 1, 2010, and ending December 31, 2012, unless extended as provided in
Section 33, or earlier terminated as provided in Section 29, subject to the following terms and
conditions which City and NEK agree to and accept.
1 RENTAL FEES. A daily Rental Fee for the rental of the Park's paved track and off -road dirt areas as
further outlined below shall be paid by NEK.
Paved Track:
$1,250 per day for the first 50 days, and standard customer rate thereafter, during 2010
$1,375 per day for the first 50 days, and standard customer rate thereafter, during 2011
$1,500 per day for the first 50 days, and standard customer rate thereafter, during 2012.
Off -road Dirt Areas for OHV Use:
$950 per day for the first 50 days, and standard customer rate thereafter, during 2010
$1,075 per day for the first 50 days, and standard customer rate thereafter, during 2011
$1,200 per day for the first 50 days, and standard customer rate thereafter, during 2012.
(For purposes hereof "day" means 6.00 a.m. to 12:00 a.m. (midnight) and includes time for an Event and
Event set -up and tear - down.)
The daily rental fees specified above shall be applicable to a combined total of 50 days paved track and off -
road dirt areas during each calendar year Rental fees for days in excess of the combined total of 50 days
per calendar year shall be at the standard customer rate.
16
2. EVENT SCHEDULING NEK understands and agrees that the primary purpose of the Park is for public
motorsports recreational activities and NEK shall have no priority in scheduling Events during the period from April
1 through October 31 of each calendar year ( "Prime Dates "). Notwithstanding the foregoing, special
accommodation will be given to NEK for scheduling Events during non -Prime Dates when more than one week's
advanced written notice is given to City City may attempt to reschedule other Renters to accommodate NEK's
requests for Prime Dates when at least two weeks' advance written notice is given to City, but only to the extent, as
determined by City, that such rescheduling satisfies the primary purpose of the Park, other Renters, and City City
may accommodate NEK's requests to schedule Prime Dates when those dates, as determined by City, are not
otherwise reserved and they do not have the potential to be reserved for other Renters.
3. NUMBER OF RENTAL DATES. NEK shall use the Park for a minimum of thirty (30) days in each
calendar year If NEK uses the Park for less than thirty (30) days in any calendar year, NEK shall pay additional
rent in an amount equal to the number of days used less than thirty (30) multiplied by the average of the daily rent
for the Paved Track and the daily rent for the Off -road Dirt Areas applicable during such calendar year Additional
rent shall be paid in full on or before January 15 of the next calendar year
4. COMBINED USE. If NEK uses both paved track and off -road dirt areas on the same day, NEK shall pay
only the paved track rate for that day
5. CONDITION OF TRACK. A portion of each Rental Fee includes standard grooming of the track by
City, as determined by City, following NEK use and prior to the next scheduled Event. NEK shall clean up any
major debris left on the track or off -road dirt areas immediately following each Event held by NEK. NEK is
required to provide dust control during use, when necessary, as determined by City
6. REMITTANCE OF FEES. All Rental Fees are due within 10 days of the conclusion of each Event.
After 40 days, a late fee of $50 00 will apply Interest shall accrue at the rate of 8% per annum on all Rental Fees
past due for more than 40 days.
7 RELEASE AND WAIVER OF LIABILITY Prior to entering the Park on any NEK
Event day, all persons MUST sign a Release and Waiver of Liability, Assumption of Risk and
Indemnity Agreement ( "Release Agreement ") This Release Agreement must be signed in the
presence of NEK personnel and is required before entrance into the Park on any Event day All
executed Release Agreements shall be delivered to City pnor to the end of each Event. NEK
shall bear sole responsibility for full compliance with this Section. Entry into the Park by any
person dunng an Event day 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 NEK.
8. CANCELLATION NEK may cancel a scheduled Event upon 24 hours prior written
notice given to City and each party shall be released from all obligations with respect to the
Event. If NEK does not timely cancel an Event, NEK shall pay all rental fees NEK would have
paid if the Event had been completed and not cancelled, provided, that if NEK cancels an Event
due to the dangerous condition of the paved track or the off -dirt areas for OHV use, NEK shall
not be obligated to pay a rental fee for the Event.
9 NON - TRANSFERABLE With the sole exception of its subsidiaries and affiliates and
for the sole purpose of motor vehicle training, NEK shall not sublease, transfer, or assign to any
other party this Agreement without the prior written consent of City Any attempt to sublease,
transfer, or assign this Agreement, or any of NEK's rights hereunder, without the prior written
consent of City is void and shall constitute a material breach of this Agreement by NEK. In the
event of any assignment, sublease or transfer, whether to a third party or to an NEK subsidiary or
17
affiliate, NEK shall not be released from any responsibility hereunder and shall remain liable and
responsible to City for such subleasee, transferee, or assignee and its activities in accordance
with the terms and conditions of this Agreement.
10. IMPROVEMENTS. Subject to the prior written approval by the City Manager of the
design, plans, specifications and designed area in the Park therefor, NEK may at its sole risk, (1)
store and safe -keep up to 70 training vehicles ( "Vehicle Storage Area "), (ii) install a paved skid
pad ( "Skid Pad "), (iii) install in an environmentally sound mariner up to a 1,000 gallon above-
ground fuel storage facility for the purpose of fueling its training vehicles ( "Fuel Storage
Facility "), and (iv) exclusively occupy and make improvements, including, but not limited to
water line, ADA compliant access ramp, and fencing the entire area, to the existing single -wide
mobile classroom for the purpose of holding training sessions ( "Classroom ") (herein collectively
the "Improvements "). All costs associated with the development, installation, construction, and
maintenance of the Improvements shall be the sole responsibility of NEK. All Improvements
shall be constructed, installed, maintained, and operated in compliance with all local, state, and
federal laws and regulations. NEK shall maintain the Improvements in good and safe condition,
appearance and state of repair, regardless of the cause or need for maintenance and repair Upon
expiration or early termination of this Agreement, NEK shall, at the option of City, by notice
given to NEK by City within 24 months after the expiration or termination of this Agreement,
remove the Vehicle Storage Area, Skid Pad and/or Fuel Storage Facility from the Park. In the
event of such removal, NEK shall restore the designated area as near as practicable to its original
condition. With respect to the Fuel Storage Facility, NEK shall remove, clean up, and remediate
all contamination caused by or resulting from the release, discharge, or spill of fuel and
indemnify, defend, and save harmless City and the Park therefrom. This indemnification
provision shall survive the expiration or termination of this Agreement. City shall have no
liability or responsibility in any manner for the Improvements or vehicles stored in the Vehicle
Storage Area, all such liability and responsibility shall be that of NEK alone NEK is granted the
right to enter the Park at reasonable times on other than NEK Event days for the limited purpose
of accessing, maintaining, and using the designated areas and Improvements, provided, such
entry, access, and use shall not unreasonably interfere with the use of the Park and its facilities
by other persons and entities. Any such entry, access, and use shall be subject to the conditions
and provisions of this Agreement. In consideration of the use of the designated areas in the Park,
NEK shall pay additional monthly rent to City in the monthly amount of $750 00 during the first
year, $1,000 00 during the second year and $1,250 00 during the third year, and $1,500 during
the Extended year, payable monthly in advance without notice, on the first day of each month
during the effective term of this Agreement, commencing January 1, 2010 In consideration of
actual costs incurred by NEK for the installation of the Skid Pad, and upon receipt by City of
documented proof that such costs were incurred, City shall apply credit by the same amount to
NEK toward monthly rent beginning on the date the Skid Pad is completed.
11 FENCING On or before April 15, 2010, NEK shall coordinate and install in accordance
with design, plan, specification, and location approved in writing by the City Manager,
approximately 600 linear feet of chain link fencing around City's maintenance facility area and
privacy fencing around the designated Vehicle Storage Area. In consideration of actual costs
incurred by NEK for the installation of said fencing, and upon receipt by City of documented
18
proof that such costs were incurred, City shall apply credit by the same amount to NEK toward
monthly rent beginning on the date the fencing is completed.
12. PROHIBITED USES NEK understands and agrees that this Agreement is solely for
access to and use of the Park. NEK SHALL NOT photograph, film, or broadcast any Event or
any part thereof without a separate written agreement authorizing such activities. In addition, no
footage or images obtained from City access granted herein may be reproduced, sold, broadcast,
commercially exploited, or distributed without a separate written license agreement authonzing
such use. NEK understands and agrees that this Agreement and NEK's use of the Park 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 ")
NEK acknowledges receipt of a copy of the Easement. City makes no representation or warranty
that NEK's intended use of the Park or the provisions of this Agreement are approved uses or
allowed under the Easement.
13. CERTIFICATE OF INSURANCE Upon execution of this Agreement but in no event
less than seven (7) days prior to the first scheduled Event of each year, NEK shall provide City a
Certificate of Insurance showing evidence of habilrty coverage for bodily injury and property
damage including contractual coverage with a combined single limit of not less than Five Million
Dollars ($5,000,000 00) per occurrence, with a Five Million ($5,000,000 00) annual aggregate,
and shall be endorsed to add as additional insureds the City of Pueblo and the City of Pueblo
acting by and through its Honor Farm Properties Enterprise and their officers, employees, and
agents, (collectively, the "Indemnified Parties ") Such policies shall state that the insurance is
primary in coverage to any other insurance which may be available to City Concurrent with the
above mentioned Certificate of Insurance evidencing liability coverage, NEK or the applicable
employer shall also provide City a Certificate of Insurance showing evidence of statutory
workers' compensation insurance and shall contain an endorsement waiving subrogation against
both the City of Pueblo and the City of Pueblo acting by and through its Honor Farm Properties
Enterprise Workers' compensation coverage shall be obtained notwithstanding that NEK may
have no employees as defined under said Act or that NEK 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 NEK performing work at the Park irrespective of whether such
employees may be shareholders, managers, partners, or owners of NEK or exempt employees
under the Act. NEK may purchase, for non - statutory employees, a participant accident insurance
policy which would include death, disability, dismemberment, and medical benefits. Any
independent contractors of NEK shall be covered under NEK's workers' compensation insurance
and/or participant accident insurance policy or show evidence that said independent contractor is
covered under its own workers' compensation insurance policy NEK shall have full and sole
responsibility for ensuring compliance with this Section, including without limitation
indemnification pursuant to Section 14 All insurance policies required hereunder shall provide
that such policies not be cancelled or reduced without thirty (30) days' advance written notice to
the Indemnified Parties. Failure of NEK to comply with the provisions of this Section shall
constitute a material breach of this Agreement by NEK.
14. INDEMNIFICATION NEK agrees to be responsible for, to hold harmless, indemnify,
and defend each of the Indemnified Parties from any and all claims, including reasonable
19
attorney's fees and costs, of liability whether by reason of injury to or death of the person or of
damage to the property of another or otherwise arising in connection with any use of the Park by
NEK, or any default or breach of any term of this Agreement by NEK, excepting only claims
based on the Indemnified Parties' negligence, bad faith, or intentional acts. The Indemnified
Parties shall have the right to retain their own counsel, in which case those reasonable attorney
and expert fees and costs shall be covered by NEK's indemnification obligation in this Section.
This Section shall survive termination or expiration of this Agreement for a penod of six (6)
years, provided, however, that this Section shall survive termination or expiration of this
Agreement for a period of ten (10) years for any claims otherwise covered by this Section that
are brought by minors.
15. PROPERTY USE AND DAMAGE NEK shall maintain a clean and safe activity area
throughout each Event and, upon completion of each Event, except for standard grooming of the
paved track as provided in Section 5, NEK shall repair and restore the Park and all its tracks and
facilities to the same condition in which it was received by NEK. NEK shall repair any and all
damages to the Park (including without limitation any resources, facilities, premises, or property
of City or the Park) caused by or attributable to NEK's activities, and City or its designee shall
be the sole judge of the extent of such damage and the adequacy of any repairs or restoration.
No physical alteration to the Park (including without limitation installation or modification of
new or existing structures, alteration of any trees or other plants, and disturbance of any ground
surface or cover) may be made without City's pnor written consent.
16. UNSAFE OR UNLAWFUL CONDUCT Notwithstanding any provision herein to the
contrary, City or its designee shall have the sole discretion to terminate any activity permitted
hereunder when such action is deemed necessary or appropriate for the safety of lawful users of
the Park, for the protection of the Park or resources or equipment of City, or for the prevention of
a violation of any local, state, or federal law or regulation or the Easement relating to or arising
out of the use of the Park or any activity permitted hereunder
17 SCHEDULING Circumstances, including without limitation changes in City's other
scheduled motorsports activities or events or resurfacing of or other work on the Park, may
necessitate a revision to an existing schedule of Events, which the Parties hereby agree to work
together in good faith to address. The Parties acknowledge and agree that any revisions to the
schedule of Events by City shall not constitute a breach or default of this Agreement.
18. NO REPRESENTATION OR WARRANTY OF CONDITION OR FITNESS
PARK 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 PARK FOR NEK'S EVENTS OR FOR ANY PARTICULAR USE OR PURPOSE.
Accordingly, NEK is hereby advised that NEK shall be solely responsible for personally
inspecting the Park before execution of this Agreement and commencement of any Event.
NEK's commencement of any Event shall constitute an expressed acknowledgement by NEK
that the Park is safe and adequate for NEK's permitted use. NEK shall have exclusive control of
the Park during its Events and shall be responsible for all equipment, except City's motorized
equipment when operated by City employees, and for adequate safeguard for the protection of
NEK, its employees, agents, and representatives, and persons engaged in an Event.
Notwithstanding any provision in this Agreement to the contrary or which may be construed to
20
the contrary, City assumes no obligation or responsibility to keep or maintain the Park 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 NEK's sole remedy if the Park, its tracks or facilities
are not maintained in good and safe condition, appearance or state of repair is to terminate this
Agreement.
19 RELATIONSHIP• Nothing in this Agreement is intended to, or shall be deemed to
constitute, a partnership or joint venture between the Parties, or to create any agency or partner
relationship between the Parties. Neither Party shall hold itself out as a partner, joint venture,
agent, or representative of the other under this Agreement.
20. INTELLECTUAL PROPERTY NEK shall NOT use any name, trademark, service
mark, or logo of City including the name "Pueblo Motorsports Park" for any purpose, without
the prior review of all proposed uses by NEK and the expressed prior written consent of City, as
the case may be. Notwithstanding the foregoing, NEK may use the official name of the Park in
accurate and truthful advertising solely as a means for identifying the location of an Event.
21 JURISDICTIONIVENUE This Agreement and all nghts and obligations of the Parties
shall be construed and governed in accordance with the laws of the State of Colorado With
respect to any claims or litigation associated in any manner with or arising out of this
Agreement, the Parties agree to submit to the exclusive personal jurisdiction of the District Court
in and for Pueblo County, Colorado Exclusive venue for any such litigation shall be Pueblo
County, Colorado In the event of litigation regarding the terms and conditions of this
Agreement, the prevailing Party shall be awarded reasonable attorney's fees and costs.
22. TRACK REQUIREMENTS NEK acknowledges and agrees that all applicable local,
state, and federal laws and regulations, and the track requirements set forth herein, including all
Exhibits attached hereto and incorporated herein, are binding obligations of NEK and shall
govern the permitted uses of the Park by NEK and its agents, employees, representatives, and
contractors.
23. MINORS No individual under the age of 18 years shall be allowed during any Event
day in any restricted area of the Park (which shall include the track surface, pit areas, garage
areas, 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. These documents must be
signed in the presence of NEK personnel and are required before said minor's entrance into the
Park. All executed documents shall be delivered to City prior to the end of each Event. NEK
shall bear sole responsibility for full compliance with this Section. Entry by any individual
during an Event day 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 NEK.
24. OTHER ACTIVITIES Any activities to be conducted in the Park during NEK's use of
the Park (including without limitation food service or catenng, entertainment, product or
21
merchandise sales, press conferences, or other commercial or professional activities) must be
approved in advance in writing by City, and shall be subject to the requirements, conditions, and
fees established by City All individuals engaging in such activities shall be required to execute
a Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement in accordance
with Sections 7 and 23 above
25. RIGHT TO REFUSE ACCESS City may, at City's sole discretion, deny access to, or
remove from, the Park any individual(s) who are disruptive, fail to obey any lawful order, or fail
to comply with any covenant or provision of this Agreement.
26. ENTIRE AGREEMENT This Agreement, including all Exhibits attached hereto,
contains the entire agreement of the parties relating to the subject matter contained herein. There
are no promises, terms, conditions, rights, or obligations other than those contained herein. This
Agreement shall supersede all previous communications, representations, or agreement, whether
verbal or written, between the parties.
27 COLORADO GOVERNMENTAL IMMUNITY ACT No term, provision or
condition of this Agreement shall be construed or interpreted as a waiver, either express or
implied, of any immunities, rights, benefits or protections provided or available to City, its
officers and employees under applicable law, including, without limitation, those provided and
available to City and its officers and employees under the Colorado Governmental Immunity
Act, §24 -10 -101, et seq., C.R.S., as amended or as may hereafter be amended.
28. THIRD PARTIES. Notwithstanding anything in this Agreement to the contrary, NEK
agrees that City is not liable or responsible for the acts or omissions of the exclusive vendors,
preferred vendors, security personnel or other third parties made available by or through City, at
City's sole option, to NEK under this Agreement at NEK's request ( "Third Parties ") NEK
agrees that the Third Parties are independent contractors made available by City solely for the
benefit of and as an accommodation to NEK and no contractual, tort or other liability results
from or arises out of City making or failure to make the Third Parties available to NEK.
29 TERMINATION AND DEFAULT If either party is in default hereunder, the non-
defaulting party may give written notice describing the default to the defaulting party If the
defaulting party does not correct such default within twenty (20) days after receipt of said notice,
or if the default cannot be corrected within said 20 -day period and the defaulting party fails to
commence action to correct the default within said 20 -day penod and thereafter diligently
pursues corrective action, the non - defaulting party may upon an additional five (5) days' notice
given to the defaulting party terminate this Agreement. Notwithstanding the foregoing, if NEK
commits a material breach as defined in Sections 7, 12 and 22, City may terminate this
Agreement upon five (5) days' prior written notice to NEK specifying the material 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
30. 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.
22
ii
4
(a) If to City, City of Pueblo, 1 City Hall Place, Pueblo, Colorado, 81003, Attention.
City Manager, or
(b) If to NEK. NEK ASG, 110 S Sierra Madre, Colorado Springs, Colorado, 80903,
Attention. Mark Marchant.
31 STATEMENT OF TRADE NAME Front Range Motorsports, Inc ( "Front Range ") on
October 29, 2009, filed its statement of trade name in the records of the Colorado Secretary of
State to transact business under the trade name "Pueblo Motorsports Park" ( "Statement of Trade
Name ") Front Range hereby confirms and ratifies City's use for any and all purposes of the
name "Pueblo Motorsports Park." Front Range shall within twenty (20) days after execution of
this Agreement by the Parties withdraw its Statement of Trade Name pursuant to Section 7 -71-
106, C.R.S and assign and transfer to City all its right, title, and interest in and to the name
"Pueblo Motorsports Park" and all assets Front Range acquired from Pueblo Motorsports, Inc
This Agreement shall not be deemed to be in effect and shall terminate if Front Range fails to
timely comply with the covenants of this Section.
32. MISCELLANEOUS PROVISIONS.
32.1 No assent, express or implied, by City to any breach of default by NEK in the
performance of any one or more of the covenants hereof shall be deemed or taken to be a waiver
of any succeeding breach of or default in the same or different covenant.
32.2 All financial obligations of City under this Agreement are subject to and
conditioned upon funds for such purpose being budgeted, appropriated, and otherwise made
available.
32.3 The person executing this Agreement on behalf of NEK warrants and represents
that he and NEK have been duly authorized by all appropriate and necessary action to execute
this Agreement and this Agreement is a valid and binding obligation of NEK enforceable in
accordance with its terms.
33. OPTION TO EXTEND If NEK is not in default hereunder, NEK shall have the option
to extend this Agreement for an additional period of one (1) year from January 1, 2013, to
December 31, 2013, upon the same terms and conditions, except:
(a) Rental Fees shall be
Paved Track:
$1,625 00 per day for the first 50 days, and standard customer rate thereafter,
during 2013
Off -Road Dirt Areas for OHV Use
23
o w
$1,325 00 per day for the first 50 days, and standard customer rate thereafter,
dunng 2013
(b) NEK shall have no option to extend this Agreement after December 31, 2013
IN WITNESS WHEREOF, the Parties hereto have executed and delivered this Agreement as of
the date first wntten above.
NEK ADVANCED SECURITIES GROUP, CITY OF PUEBLO ACTING BY AND
INC THROUGH ITS HONOR FARM
PROPERTIES ENTERPRISE
By
Pnnt Name By
Title Title.
Executed this day of , 2009, for the sole purpose of
Section 31 of the foregoing Agreement.
FRONT RANGE MOTORSPORTS, INC
By
Print Name
Title
24
4
FACILITY RENTAL RULES AND REGULATIONS
We want to welcome you to the Honor Farm Properties Enterprise Motorsports Park. The
following are general rules and informational items that will aid in making your visit enjoyable
and will assist our personnel in better serving your needs. If you have any questions or problems
during your visit, please contact our staff for assistance.
• All vehicle driver safety equipment which is standard in the industry or required by
applicable liability insurance shall be in full and effective use at all times.
• Do not drive stakes into the ground or into the asphalt. Underground utilities are
everywhere and there will be a charge for utility or asphalt repair
• Please keep the speed of all vehicles to 10 MPH or lower when not on the actual race
track surface.
• Marked trash barrels are located in the designated area for your convenience. Please
assist us in keeping the Park clean by using these barrels.
• All parking attendants, if necessary, shall be the sole responsibility of NEK.
We hope your visit to the Honor Farm Properties Enterprise Motorsports Park is enjoyable and we wish
you the best of luck!
25
0
EXHIBIT B (PMP Map)
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26
EXHIBIT C
FACILITY RENTAL RULES AND REGULATIONS
We want to welcome you to the Honor Farm Properties Enterprise Motorsports Park. The
following are general rules and informational items that will aid in making your visit enjoyable
and will assist our personnel in better serving your needs. If you have any questions or problems
during your visit, please contact our staff for assistance.
• All vehicle driver safety equipment which is standard in the industry or required by
applicable liability insurance shall be in full and effective use at all times.
• Do not drive stakes into the ground or into the asphalt. Underground utilities are
everywhere and there will be a charge for utility or asphalt repair
• Please keep the speed of all vehicles to 10 MPH or lower when not on the actual race
track surface.
• Marked trash barrels are located in the designated area for your convenience. Please
assist us in keeping the Park clean by using these barrels.
• All parking attendants, if necessary, shall be the sole responsibility of NEK.
• Immediately clean any fluid spills
• No Alcoholic beverages
• No pyrotechnic devices
• No animals /pets
• If using dirt areas work with PMP Track NEK to coordinate watering of dirt.
• Clean up glass and screws after each use of asphalt and track areas.
• No driving off track on purpose.
• No verbal altercations with PMP staff or volunteers.
• No alterations to facilities without written permission from City
• No pushing or ramming of vehicles outside of designated area.
We hope your visit to the Honor Farm Properties Enterprise Motorsports Park is enjoyable and we wish
you the best of luck!
27
e
1 .
4
f
__.,„ I g as t-i - f-__' - -im i hrli t ,
f
July 6, 2011
To whom it may concern
I, Andrew Woglom, Chief Financial Officer of NEK Advanced Securities Group (NEK), hereby authorize
MARK MARCHANT, as Chief Administrative Officer, to act on NEK's behalf in all manners relating to
NEK's proposed 2011 contract with Pueblo Motor Sports, including signing of all documents relating to
these matters. Any and all acts carried out by Mark Marchant on NEK's behalf shall have the same
effect as acts of NEK.
This authorization is valid until further written notice from NEK Advanced Securities Group, Inc.
Sincerely,
./
Andr, w W' glom,
Chie Fin • cial Officer and Treasurer
NEK ' d nced Securities Group, Inc.
110 S. Sierra Madre Street
Colorado Springs, CO 80903
719 -634 -5523
This correspondence and any attachments or referenced material may contain Confidential and Propriety Information. Such confidential and
proprietary information may not be used, reproduced, or disclosed to any other parties for any other purpose without the expressed written
permission of NEI( Advanced Securities Group, Inc.