HomeMy WebLinkAboutbocc.ord.004.2017 )ONTRACT# 6/0- _ii RIICVEPTION#:6I6V1R: 00.0:1$1011.0011111
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Pg7 of 1J, : ORDINANCE at 09:34:40 AM
Janice K.Vos Caudill,Pitkin County,CO
AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN
COUNTY,COLORADO,AUTHORIZING AN AGRICULTURAL LEASE OF THE
THOMPSON CREEK OPEN SPACE
ORDINANCE NO. 66 ii—P-OP/
RECITALS:
I. Pursuant to 30-35-301 C.R.S.,the Board of County Commissioners("BOCC')of Home
Rule Counties is authorized to make and publish ordinances for carving into effect or
discharging the powers and duties conferred upon such counties by law and as seems
necessary.
2. Pursuant to Section 2.8.1 of the Home Rule Charter("HRC"),the BOCC is authorized to
take official action by Ordinance for certain matters where action is prescribed pursuant
to the Colorado Revised Statues as amended.
3. The Voters of Pitkin County and the Board of County Commissioners of Pitkin County
(BOCC)established an Open Space and Trails Fund for the purposes of acquiring.
preserving,managing,and maintaining open space and trails assets and resources,and
established an Open Space and Trails Hoard of Trustees(OSTB)to guide the expenditure
of those funds.
4. The Open Space and Trails Program(OST)is charged with protecting agriculture,open
space,habitat,scenic view planes,water rights and river access.
5. An Agricultural Lease Bid Process was adopted by the OSTB on October 7,2014 to
implement the County's Procurement Code and guide OST staff in selecting appropriate
tenants to manage and lease OST agricultural properties.
6. The Thompson Creek Open Space is comprised of 87 acres located four miles south of
Carbondale,CO, in the Crystal River Valley and was acquired by Pitkin County July 12,
20D5,and recorded at reception number 512283.
7. The Procurement Code requires BOCC approval pursuant to an Ordinance for the leasing
of any Pitkin County property for more than one year.
R. The Thompson Creek Open Space Interim Management Plan was created in 2008 and
identifies approximately 50 irrigated acres to be made available for leasing by an
agricultural producer.
9. A procurement selection team comprised of Open Space Department staff have
determined that a multi-year lease will best encourage wise stewardship of these
agricultural lands.
RECEPTION#.636190,02/16/2017 at 09:34:40 AM, Pgs 2 of 13,Janice K.Vos Caudill, Pitkin County,CO
10.On December 6,2016,theOSTB recommended that the BOCC approve the proposed
lessee for the Thompson Creek Open Space agricultural(case area.
I I.The BOCC finds that adoption of this ordinance is in the best interest of the citizens of
Pitkin County.
NOW,THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Pitkin
County,Colorado that it hereby adopts an ordinance of the Board of County Commissioners of
Pitkin County,Colorado,authorising an agricultural(ease o theThompson Creek Open Space to
William Y.L.Fates and Marjorie Perry and authorizes the Chair to sign the Ordinance and
upon the satisfaction of County Attorney as to form,execute any other associated
doeuinenis necessary to complete this matter.
INTRODUCED AND FIRS I' READ ON THE 2V DAY OF DECEMBER,2016 AND SET
FOR SECOND READING AND PUBI.IC HEARING ON THE 11TH DAY OF JANUARY,
2017.
NOTICE OF PUBLIC HEARING AND TITLE AND SI TORT SUMMARY OF THE
ORDINANCE PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE 29TH DAY OF
DECEMBER,2016.
NOTICE OF PUBLIC HEARING AND Ti IF.FULL TEXT OF THE ORDINANCE..POSTED
ON TIIE OFFICIAL PITKIN COUNTY WEBSITE.(wn w.pitkincount v.com )ON THE 29TH
DAY OFDEC'EMBER,2016.
ADOPTED AFTER FINAL READING AND PUBLIC HEARING ON THE I1 TH DAY OF
JANUARY,2017.
PUBLISHED BY TITLE AND SHORT SUMMARY,All ER AI)t)PTION,IN THE ASPEN
TIMES WEEKLY ON THE 19711 DAY OF JANUARY.2017.
POSTED RY TITLE AND SHORT SUMMARY ON THE OFFICIAL PITKIN COUNTY
WEBSITE j wnw.nitkimroumv tom)ON THE 13TH DAY OF JANUARY.2017
RECEPTION#636190,02/16/2017 at 09:34:40 AM, Pgs 3 of 13,Janice K.Vos Caudill,Pitkin County,CO
ATTEST: BOARD OF COUNTY COMMISSIONERS
By1 'J. . r ,„,i,t.& By:/ V ' J' ..J.ao`^'
le. '' Jones George Ne an,C,<'r
s ,M County Clerk.
Date: iiJ/I�'l y
APPROVED AS TO FORM MANAGER APPROVAL
- _s.
��
Jo ly,Coonomoc
ey `Jon Peaca my Manager
L
Gary Teonenbaum,Director
Open Space and Trails
RECEPTION#.636190,02116/2017 at 09:34:40 AM,Pgs 4 of 13,Janice K.Vos Caudill,Pitkin County,CO
ATTEST: BOARD OP COUNTY COMMISSIONERS
BylIJ. ;.",di By./ V N �W
)..,,• .7tmea
Gear N
a ,f. County ■ .
Date: / 13/1-2
APPROVED AS TO FORM: MANAGER APPROVAL,
ct 1 J
J• ... ' y,Co .. may -- 'aa Peace<dadty Meaager
1
Guy Tannenbaum,Mato(
Open Space rod Trails
RECEPTION#636190,02/16/2017 at 09:34:40 AM, Pgs 5 of 13,Janice K.Vos Caudill, Pitkin County,CO
CONTRACT NO cl"9GIY
AGRICULTURAL LA4J,'1D LEASE
This lease is entered into this/7 'day of ( LJtt/C4 v 2017 by and between the
Board of County Commissioners of Pitkin County, Colors hereinafter "Landlord" or
"County",and Bill Fates and Map Perry,4239 Highway 133,Carbondale CO,81623,hereinafter
"Tenant".
Now therefore, in consideration of the mutual covenants and promises contained herein,
the parties agree as follows:
1. Purpose and Intent. Landlord and Tenant intend that the property, all
appurtenances, water rights, easements and improvements be used for active agricultural
production. Agricultural production shall continue during the entire term of the lease without
interruption, consistent with accepted agricultural practices and the agriculture production plan
for the properly proposed by Tenant and accepted by Landlord,in writing,and made part of this
lease.
2. Leased Property. Landlord in consideration of the terms contained herein leases
to the Tenant, pursuant to the attached Annual Operating Plan, the following described real
property:Thompson Creek Open Space,together with all appurtenant water rights,consisting of
the following: 2.64 cubic feet per second(ccs.)of wafer in the Low Line Ditch,easements and
improvements("Property").
3. Lease Term. Unless earlier terminated by operation of this lease, the lease term
shall be in effect as of the date the lease is entered above,to December 31,2027. This lease shall
not be renewed or extended except through express written amendment to this lease. Tenant is
expressly prohibited from holding over beyond the expiration of the lease tam without express
written permission of Landlord.
4. Rent. Tenant agrees to pay Landlord rent at the rate of$250.00 for each calendar
year or any portion of a calendar year that this lease is in effect This amount shall be the annual
rent for the Property. The annual rent shall be due in full to the Landlord on April 1 each year or
portion of a year that the lease is in effect. Failure to pay rent by this date constitutes a breach of
this lease,
AGRICULTURAL PROVISIONS
1. Soil Testing. It shall be the responsibility of the Tenant to conduct soil testing of
the Property once a year if changes to the operation are planned, including but not limited to,
fertilizer application, cover cropping, significant changes to the stocking rate, etc... If soil
sampling is deemed appropriate,the Annual Operating Plan will include details including dates,
sample size, and analyses (pH, nutrient levels, microbial communities, organic compounds,
etc...). The County may conduct additional soil testing periodically. All results will be shared
between the County and Tenant.
2. Weed Control. Tenant is responsible for the removal of all noxious weeds as
defined in the Colorado Noxious Weed Act. Removal of noxious weeds shall be before
individual plants go to seed. The use of any herbicide shall be particularly approved by the
RECEPTION#636190,02/16/2017 at 09:34:40 AM, Pgs 6 of 13,Janice K.Vos Caudill,Pitkin County,CO
AGRICULTURAL LA1 fl LEASE
PAGE 1 OF
County as pan of the Annual Operating Plan for the Property. Existing areas of infestation,
concern,or vectors will be identified in the Annual Operating Plan.
3. Pest Control. Tenant may engage in control, removal, or a ratification of any
pests or predators only with the express approval of the County. Methods for pest control shall
be contained in the Annual Operating Plan.
4. Fertilizers. The application of any and all fertilizer agents shall be based upon
the results of the soil tests and with the recommendation of Colorado State University. The
intent of the application of any fertilizer will be to restore or improve soil conditions. The type
of fertilizer to be used es well as its application schedule and application method shall be
contained within the Annual Operating Plan for the Property.
5. Livestock. Livestock may be maintained on the Property consistent with the
Annual Operating Plan. Livestock shall be penned or pastured so as not to cause the destruction
of pasture grasses, soil depressions or swales, or in any way that would negatively affect
irrigation practices. Watering of livestock shall be conducted in approved areas consistent with
the Annual Operating Plan.
6. Vehicle and Machinery Storage. The storage of vehicles or machinery not
actively used ss part of the agricultural operation is prohibited. The maintenance of vehicles and
machinery used in agricultural operations may be conducted only in designated areas. Any spill
or loss of any fluid associated with vehicles or agricultural machinery must be collected and
disposed of off the Property consistent with applicable law.
7. Existing Vegetation. Existing hedgerows and brush areas shall not be disturbed
except as specifically allowed in writing by the County or as incorporated into the Annual
Operating Plan.
8. Emblements. Tenant shall be entitled to all emblements if the termination of the
lease is not a result of Tenant's breach and shall retain harvest rights through the end of the
growing season. If the lease is terminated or canceled as a result of Tenant's default and failure
to cure in accordance with the terms of this lease, all agricultural products shall be harvested or
otherwise gathered and sold, if possible and reasonably practical,with the proceeds of such sale
going to Landlord to cover its costs and the remainder shared between Landlord and Tenant
based on dte percentage of the growing season each was in possession of the Property_ The
Landlord will not possess a security interest in the emblements.
9. Fences. Tenant shall be responsible for maintaining all fences and gates in
working condition as necessary for the Tenant's proposed use, normal wear and tear excepted.
Removal of fencing is permitted with Landlord's approval and must be reinstalled upon
termination of this lease if Tenant does not obtain a concurrent lease on the Property. Tenant and
Landlord recognize that the western boundary fence is located on or within the Colorado
Department of Transportation (CDOT) Right of Way for Highway 133. CDOT may have
additional maintenance and liability regarding the fence.
10. Water Rights. Tenant shall utilize all water rights associated with the Property.
Landlord may enter the property to maintain a record of diversion or delivery amounts and the
areas of the Property watered. Tenant shall not make any improvements or changes in the
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AORICULTU AL IAND LEASE
PAGE 3 OF9
irrigation infrastructure without written permission of the Landlord_ All irrigation improvements
become the property of the Landlord at the end of the lease. Tenant shall maintain all ditches,
laterals, tail runs, pipes, splitter boxes, and all other infrastructure associated with the use of
water on the Property. Maintenance shall include but not be limited to burning, cleaning and
dredging ditch courses, clearing pipelines, keeping beadgates and diversion structures in
workable order.
11. Erosion. Tenant shall not engage in any activity which results in the loss of soil
or changes the topography or grade of the Property. All soil disking and tilling must be approved
in the Annual Operating Plan. Irrigation activity must be temporarily halted if any ditch,lateral,
pipeline or other irrigation infrastructure becomes damaged or inoperable.
12. Annual Operating Plan. An Annual Operating Plan shall be developed for the
County by the Open Space and Trails Department,with the Tenant's input,within two months of
the Tenant entering into this lease and will be reviewed and amended, if necessary, at least
annually (the "Annual Operating Plan") and incorporated into this lease. Landlord may
terminate this lease if Tenant fails to comply with any of the material provisions of the Annual
Operating Plan. All Annual Operating Plans shall include the type of agricultural activity to be
conducted on the Property and describe the areas of the Property that will be used for specific
agricultural activities. The plan will propose the anticipated water use and whether any changes
are needed to the existing irrigation infrastructure. The plan shall address any herbicide or
pesticide applications to be used on the Property and whether or not there are pests or predators
to be removed or eradicated from the Property. The plan shall include the anticipated season
dates for the actual agricultural activity as well as the winter cover for the areas of the Property
on which agricultural activities were conducted. The plan shall include the types, method of
application and timing for the application of any fertilizer to be used. Amendments to the plan
may be executed by the Open Space and Trails Department.
GENERAL PROVISIONS
1. Insurance. Tenant shall procure and maintain for the term of the lease,insurance
against claims for injury to persons or damage to Property which may arise from or in
connection with occupancy and use of the Property.
The insurance requirements herein are minimum requirements for this lease and in no way
limit the indemnity covenants contained in this lease. Tenant's insurance shall be primary and
non-contributory with any insurance or self-insurance purchased by the Landlord. The
insurance companies issuing the policy or policies hereunder shall have no recourse
against the County of Pitkin for payment of any premiums or for assessments under any form
of policy. Any and all deductibles or self-insured retentions in the above-described insurance
policies shall be assumed by and be for the amount nf, and at the sole expense of the Tenant.
Tenant shall assess its own risks and if it deems appropriate and/or prudent, maintain higher
limits and/or broader coverages. Tenant is not relieved of any liability or other obligations
assumed or pursuant to the lease by reason of its failure to obtain or maintain insurance
in sufficient amounts,duration,or types.
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AGRICULTURAL LAND LEASE
PACE 4 OF 9
A. Coverage and Limits of Insurance: Tenant shall provide coverage with
limits of liability not less than those stated below. An umbrella and/or excess
liability policy may be used to meet the minimum liability requirements provided
that the toverage is written on a"following form"basis.
1. Statutory Workers'Compensation:Colorado statutory minimums
a. Policy shall contain a waiver of subrogation against the County.
b. This requirement shall not apply when Tenant, contractor or
employee is exempt under Colorado Workers' Compensation Act., AND
when such contractor or subcontractor executes the appropriate sok
proprietor waiver form.
Minimum Limits:
Coverage A(Workers'Compensation) $ Suntory
Coverage B(Employers Liability) S 500,000
2. Commercial General Liability—ISO 1CG 0001 form or equivalent
nth County named additional insured)
Minimum Limits:
General Aggregate $ 500,000
Products/Completed Operations Aggregate S 500,000
Each Occurrence Limit S 500,000
PersonallAdvertising Injury S 500,000
Fire Damage(Any One Fire) Replacement Value of
any Structures
Medical Payments(Any One Person) $ 5,000
Coverage to include:
• Premises and Operations
• Personal/Advertising Injury
• Products/Completed Operations
• Liability assumed under an Insured Contract (including defense costs
assumed under contract)
• Independent Contractors
• Additional Insured—Owners, Lessees or Contractors Endorsement,
ISO Form 2010(2004 Edition or equivalent)
• Additional Insured—Owners, Lessees or Contractors Endorsement,
ISO CC 2037(2004 Edition or equivalent)
• The policy shall be endorsed to include the following additional insured
language on the Additional Insured Endorsements specified above:
"County, its subsidiary, parent, associated and/or affiliated entities,
RECEPTION#636190,02116/2017 at 09:34:40 AM,Pgs 9 of 13,Janice K.Vos Caudill,Pitkin County,CO
AGRICULTURAL LAND LEASE
PAGE 5OF9
successors, or assigns, its elected officials, trustees, employees,
agents, and volunteers named as an additional insured with respect to
liability and defense of suits arising out of the activities performed by, or
on behalf of the Contractor,including completed operations."
B. Proof of Insurance:
1. Each insurance policy required by the insurance provisions of this
lease shall provide the required coverage and shall not be suspended,voided
or canceled except after thirty(30)days prior written notice has been given to
the County, except when cancellation is for non-payment of premisms, then
ten(I D)days prior notice may be given. Such notice shall be sent directly to
Pitkin County Open Space and Trails Department, 530 E. Main Street, 3'
Floor,Aspen,Colorado,81611. If the insurance carrier will not provide the
required notice, the Consultant/Contractor and or its insurance broker shall
notify the County of any cancellation,or reduction in coverage or limits of
any insurance within seven(7)days of receipt of insurers'notification to that
effect.
2. Landlord reserves the right to request and receive a copy of any
policy and any policy endorsement at any time during the term of this lease.
2. Indemnity.
A. Tenant agrees to indemnify,hold harmless and,not excluding the County's right to
participate, defend the County, its subsidiary, parent, associated and/or affiliated
entities, successors, or assigns, its elected officials, trustees, employees, agents,
volunteers,and any jurisdiction or agency issuing permits for any work included in
the performance of this lease, hereinafter referred to as indemnitee, from all suits
and claims, including attomey's fees and cost of litigation, actions, loss, damage,
expense,cost or claims of any character or any nature arising out of the work done
in fulfillment of the terms of this lease or on account of any act, claim,or amount
arising or recovered under workers'compensation law or arising out of the failure
of Tenant to conform to any statutes,ordinances,regulation, law or court decree. It
is agreed that Tenant will be responsible for primary loss investigation, defense
and judgment costs where this contract of indemnity applies. Pitkin County and
its elected Board shall be named as an additional insured with respect
to any liability arising out of the activities performed by, or on behalf of
the Tenants on the Leased Property.
B. Tenant further shall investigate,process,respond to,adjust,provide defense
for and defend, pay or settle all claims, demands, or lawsuits related hereto at its
sole expense and shall bear all other costs and expenses related thacto,even if the
claim,demand or lawsuit is groundless,false or fraudulent.
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AGRICULTURAL LAND LEASE
PAGE 6 Of
3. Assinability. Tenant agrees not to assign or sublease any part of the Property
without the written consent of the Landlord.
4. Binding Arbitration. Any disputes arising out of this lease shall be subject to
binding arbitration. The parties agree that any disputes concerning the terms and conditions
of this lease shall be submitted and finally settled by arbitration. Arbitration shall be
conducted pursuant to the rules of the American Arbitration Association and shall be
presided over by the Pitkin County Hearing Officer appointed to arbitrate Pitkin County
contract disputes. Costs of the arbitration shall be awarded to the substantially prevailing
party.
5. Severability. In the event that any provision of this lease shall be held to be
invalid or unenforceable, the remaining provisions of this lease shall remain valid and
binding upon the parties hereto.
6. Intention and Modification. This lease represents the entire and integrated
lease between the County and Tenant and supersedes all prior negotiations, representations,
or contract,either written or oral.This lease may be amended only by written contract signed
by both the County and Tenant
7. Records. Tenant shall maintain comprehensive, complete and accurate
books,records, and documents concerning its performance relating to this lease for a period of
three(3)years after final payment under the lease and the County shall have the right within
the three (3) year period to inspect and audit these books, records and documents, upon
demand, in a reasonable manner and al reasonable times, for the purpose of determining,by
accepted accounting and auditing standards, compliance with all provisions of the lease and
applicable law.
8. Lease Made in Colorado. The parties agree that this lease was made in
accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed
lobe exclusively in the courts of Pitkin County,Colorado.
9. Attorney's Fees. In the event that legal action is necessary to enforce any of the
provisions of this lease beyond the arbitration described in Paragraph 4 above, the substantially
prevailing party, whether by final judgment or out of court settlement, shall recover from the
other party all costs and expenses of such action or suit including reasonable attorney's fees.
10. Waiver. Failure of the County to exercise any right or remedy granted under this
lease shall not have the effect of waiving or limiting the exercise of the County,or of any other
right or remedy or the indication of such right or remedy at any future time.
I1. Governmental Immunity. Tenant agrees and understands that Pitkin County is
relying on and does not waive, by any provision of this lease, the monetary limitations or
terms or any other rights, immunities,and protections provided by the Colorado Governmental
Immunity Act, § 24-10-101, et seq., C.A.S., as from time to time amended, or otherwise
available to Pitkin County or any of its officers, agents or employees. Further, nothing in this
lease shall be construed or interpreted to require or provide for indemnification of Tenant by the
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AGRICULTURAL urm LEASE
PAGE 7 OF 9
Courcy for any injury to any person or any property damage whatsoever which is caused by the
negligence or other misconduct of the County or its agent or employees.
12. Notice. Any written notice required by this lease shall be deemed delivered
through any of the following: (I) hand delivery to the person at the address below; (2)
electronic, intemet or facsimile delivery with confirmation of receipt to the e-mail address or
fax number below; or(3)within three(3) days of being sent certified first class mail,postage
prepaid,return receipt requested addressed as follows below. Notice by facsimile, e-mail or
Internet delivery shall be deemed given upon receipt of a confirmation by sender and notice by
personal delivery shall be deemed given when received.
To: Pitkin County Open Space&Trails
Ann:Paul Holsinger
530 E.Main Street,3"Floor
Aspen,Colorado 81611
Fax:(970)920-5198
E-Mail Address:Paul.Holsinger@Pitkincounty.com
With Copies
To: Pitkin County Attorney's Office
530 E.Main Street,#302
Aspen,Colorado 81611
Fax:(970)920-5198
E-Mail:John Ely(a)pitkincountysom
To: BillFales and Marj Perry
4239 Highway 133
Carbondale,Colorado 81623
E-Mail:wmfales(aol.com
13. Default/Violation of Lease Terms. Every clause herein contained is hereby made
a condition of this lease. If Tenant fails to comply with any of the material provisions of this
lease, or of any present rules and regulations or any that may be hereafter presaibcd by
Landlord, or materially fails to comply with any duties imposed on Tenant by statute within
seven(7)days after delivery of written notice by Landlord specifying the non-compliance and
indicating the intention of Landlord to terminate the lease by reason thereof, Landlord may
terminate this lease. At the time of default or violation,Landlord may declare all unpaid rent for
the remaining term of the lease to be immediately due and payable within thirty(30)days notice
to Tenant. Tenant shall be responsible to Landlord for the cost of repairs,legal fees,advertising
and any other costs incurred in preparing the Property for re-renting. Tenant agrees not to return
to the premises after legal removal.
14. Section Headings. Paragraph or section headings within this lease are inserted
solely for convenience of reference,and arc not intended to, and shall not govern,limit or aid in
the construction of any terms or provisions contained herein.
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AMIGA:ORAL LAND LEASE
PAGE SOF9
MICELLANEOUS
1. Landlord reserves the right for itself, its agents, and employees to enter the
Property at any reasonable time to inspect the Property and to work and make improvements as
the Landlord shall deem necessary. Except in exigent or emergency circumstances, Landlord
shall give Tenant forty-eight(48)hours notice before entering Property.
2. Landlord makes no guarantee of the productivity of the Property and assumes no
liability of any condition, visible or not, which may affect agricultural productivity of the
Property.Tenant agrees to accept the Property in an as is condition.
3. Tenant shall perform all routine maintenance on the improvements on the
Property.Tenant is not responsible for the acts of third parties not associated authorized to access
the Property,but shall be responsible for all third parties,including quests or invitees,authorized
by Tenant to access the Property. If a third-party violation occurs, Tenant will report the
violation to the County immediately.
4. Tenant shall not place store or use on the Property substances that art hazardous
toxic dangerous or harmful or which are defined as hazardous substances by the Comprehensive
Environmental Response Compensation and Liability Act(CERCLA),42 USC§9601.
5. Tenant shall not pledge mortgage or cause any lien to be recorded against the
Property during the term of this lease.
6. Tenant shall not construct any building or improvement on the Property without
Landlord's written consent.
7. Tenant shall not dispose of trash garbage rubbish or refuse on the Property.
8. Tenant shall not permit any commercial activity on the Property apart from those
activities described in the agricultural plan.
(Signature Page Follows)
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AGRICULTURAL LAND LEAK
PAGE 9OF9
IN WITNESS WHEREOF,the Landlord and Tenant have duly executed this lease on the
day and year first above written.
TENANT: LANDLORD:
Board of County Commissioners of Pitkin
County
a f7 tt,7 A,,, 6
William E.L.Fates a Ceorce Ne maa, t air >ate
Marjo�y9
If;
t /Da
APPROVED AS TO FORM:
John M
P Attorney
1191RIY11111111191111111111 llNll
RECEPTIONS: 636191,R: $0.00,0:$0.00
DOC CODE: LEASE 130 C.
Janie.
iof 6,02/1812017 at09:94:4141 AM
James K.Vos Caudill,Piton County,
CO ooN RA t G_,B FI
AGRICULTURAL D LEASE l 6—fi
This lease is entered into this 13 'day of jlf/t I' , 2017 by and between the
Board of County Commissioners of Pitkin County, Colo hereinafter "Landlord" or
"County",and Bill Fates and Marj Perry,4239 Highway 133,Carbondale CO,81623,hereinafter
"Tenant".
Now therefore, in consideration of the mutual covenants and promises contained herein,
the parties agree as follows:
1. Purpose and Intent. Landlord and Tenant intend that the property, all
appurtenances, water rights, easements and improvements be used for active agricultural
production. Agricultural production shall continue during the entire term of the lease without
interruption, consistent with accepted agricultural practices and the agriculture production plan
for the property proposed by Tenant and accepted by Landlord, in writing, and made part of this
lease.
2. Leased Property. Landlord in consideration of the terms contained herein leases
to the Tenant, pursuant to the attached Annual Operating Plan, the following described real
property: Thompson Creek Open Space, together with all appurtenant water rights, consisting of
the following: 2.64 cubic feet per second (c.fs.) of water in the Low Linc Ditch,easements and
improvements("Property").
3. Lease Term. Unless earlier terminated by operation of this lease, the lease term
shall be in effect as of the date the lease is entered above,to December 31,2027. This lease shall
not be renewed or extended except through express written amendment to this lease. Tenant is
expressly prohibited from holding over beyond the expiration of the lease term without express
written permission of Landlord.
4. Rent. Tenant agrees to pay Landlord rent at the rate of 5250.00 for each calendar
year or any portion of a calendar year that this lease is in effect. This amount shall be the annual
rent for the Property. The annual rent shall be due in full 10 the Landlord on April 1 each year or
portion of a year that the lease is in effect. Failure to pay rent by this date constitutes a breach of
this lease.
AGRICULTURAL PROVISIONS
L Soil Testing. It shall be the responsibility of the Tenant to conduct soil testing of
the Property once a year if changes to the operation are planned, including but not limited to,
fertilizer application, cover cropping, significant changes to the stocking rate, etc... If soil
sampling is deemed appropriate, the Annual Operating Plan will include details including dates,
sample size, and analyses (pH, nutrient levels, microbial communities, organic compounds,
etc...). The County may conduct additional soil testing periodically. All results will be shared
between the County and Tenant.
2. Weed Control. Tenant is responsible for the removal of all noxious weeds as
defined in the Colorado Noxious Weed Act. Removal of noxious weeds shall be before
individual plants go to seed. The use of any herbicide shall be particularly approved by the
RECEPTION#:636191,02/16/2017 at 09:34:41 AM,Pgs 2 of 9,Janice K.Vos Caudill, Pitkin County,CO
AGRICULT.RAL LAND LEASE
PAGE 2 m9
County as part of the Annual Operating Plan for the Property. Existing areas of infestation,
concern,or vectors will be identified in the Annual Operating Plan.
3. Pest Control. Tenant may engage in control, removal, or a ratification of any
pests or predators only with the express approval of the County. Methods for pat control shall
be contained in the Annual Operating Plan.
4. Fertilizers. The application of any and all fertilizer agents shall be based upon
the results of the soil tests and with the recommendation of Colorado State University. The
intent of the application of any fertilizer will be to restore or improve soil conditions. The type
of fertilizer to be used as well as its application schedule and application method shall be
contained within the Annual Operating Plan(or the Property.
5. Livestock. Livestock may be maintained on the Property consistent with the
Annual Operating Plan. Livestock shall be penned or pastured so as not to cause the destruction
of pasture grasses, soil depressions or swales, or in any way that would negatively affect
irrigation practices. Watering of livestock shall be conducted in approved areas consistent with
the Annual Operating Plan.
6. Vehicle and Machinery Storage. The storage of vehicles or machinery not
actively used as part of the agricultural operation is prohibited. The maintenance of vehicles and
machinery used in agricultural operations may be conducted only in designated areas. Any spill
or loss of any fluid associated with vehicles or agricultural machinery must be collected and
disposed of off the Property consistent with applicable law.
7. Existing Vegetation. Existing hedgerows and brush areas shall not be disturbed
except as specifically allowed in writing by the County or as incorporated into the Annual
Operating Plan.
R. Emblemcnts. Tenant shall be entitled to all emblements if the termination of the
lease is not a result of Tenant's breach and shall retain harvest rights through the end of the
growing season. If the lease is terminated or canceled as a result of Tenant's default and failure
to cure in accordance with the terms of this lease, all agricultural products shall be harvested or
otherwise gathered and sold, if possible and reasonably practical,with the proceeds of such sale
going to Landlord to cover its costs and the remainder shared between Landlord and Tenant
based on the percentage of the growing season each was in possession of the Property. The
Landlord will not possess a security interest in the embtemems.
9. Fences. Tenant shall he responsible for maintaining all fences and gates in
working condition as necessary for the Tenant's proposed use, normal wear and tear excepted.
Removal of fencing is permitted with Landlord's approval and must be reinstalled upon
termination of this lease if Tenant does not obtain a concurrent lease on the Property. Tenant and
Landlord recognize that the western boundary fence is located on or within the Colorado
Department of Transportation (CDOT) Right of Way for Highway 133. CDOT may have
additional maintenance and liability regarding the fence.
10. Water Rights. Tenant shall utilize all water rights associated with the Property.
Landlord may enter the property to maintain a record of diversion or delivery amounts and the
areas of the Property watered. Tenant shall not make any improvements or changes in the
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AGRICULTURAL LAND LASE
PAGE I OF9
irrigation infrastructure without written permission of the Landlord. All irrigation improvements
become the property of the Landlord at the end of the lease. Tenant shall maintain all ditches,
laterals, tail runs, pipes, splitter boxes, and all other infrastructure associated with the use of
water on the Property. Maintenance shall include but not be limited to burning, cleaning and
dredging ditch courses, clearing pipelines, keeping headgates and diversion structures in
workable order.
11. Erosion. Tenant shall not engage in any activity which results in the loss of soil
or changes the topography or grade of the Property. All soil disking and tilling must be approved
in the Annual Operating Plan. Irrigation activity must be temporarily halted if any ditch, lateral,
pipeline or other irrigation infrastructure becomes damaged or inoperable.
12. Annual Operating Plan. An Annual Operating Plan shall be developed for the
County by the Open Space and Trails Department,with the Tenant's input,within two months of
the Tenant entering into this lease and will be reviewed and amended, if necessary, at least
annually (the "Annual Operating Plan") and incorporated into this lease. Landlord may
terminate this lease if Tenant fails to comply with any of the material provisions of the Annual
Operating Plan. All Annual Operating Plans shall include the type of agricultural activity to be
conducted on the Property and describe the areas of the Property that will be used for specific
agricultural activities. The plan will propose the anticipated water use and whether any changes
are needed to the existing irrigation infrastructure. The plan shall address any herbicide or
pesticide applications to be used on the Property and whether or not there are pests or predators
to be removed or eradicated from the Property. The plan shall include the anticipated season
dates for the actual agricultural activity as well as the winter cover for the areas of the Property
on which agricultural activities were conducted. The plan shall include the types, method of
application and timing for the application of any fertilizer to be used. Amendments to the plan
may be executed by the Open Space and Trails Department.
GENERAL PROVISIONS
I. Insurance. Tenant shall procure and maintain for the term of the lease,insurance
against claims for injury to persons or damage to Property which may arise hum or in
connection with occupancy and use of the Property.
The insurance requirements herein are minimum requirements for this lease and in no way
limit the indemnity covenants contained in this lease. Tenant's insurance shall be primary and
non-contributory with any insurance or self-insurance purchased by the Landlord. The
insurance companies issuing the policy or policies hereunder shall have no recourse
against the County of Pitkin for payment of any premiums or for assessments under any form
of policy. Any and all deductibles or self-insured retentions in the above-described insurance
policies shall be assumed by and be for the amount of, and at the sole expense of the Tenant.
Tenant shall assess its own risks and if it deems appropriate and/or prudent, maintain higher
limits and/or broader coverages. Tenant is not relieved of any liability or other obligations
assumed or pursuant to the lease by reason of its failure to obtain or maintain insurance
in sufficient amounts,duration,or types.
RECEPTION#636191,02/16/2017 at 09:34:41 AM, Pgs 4 of 9,Janice K.Vos Caudill, Pitkin County,CO
AGRICULTURAL I AND LEASE
PAGE4 Or9
A. Coverage and Limits of Insurance: Tenant shall provide coverage with
limits of liability not less than those stated below. An umbrella and/or excess
liability policy may be used to meet the minimum liability requirements provided
that the coverage is written on a"following form"basis.
I. Statutory Workers' Compensation:Colorado statutory minimums
a. Policy shall contain a waiver of subrogation against the County.
b. This requirement shall not apply when Tenant, contractor or
employee is exempt under Colorado Workers' Compensation Act., AND
when such contractor or subcontractor executes the appropriate sole
proprietor waiver form.
Minimum Limits:
Coverage A(Workers'Compensation) S Statutory
Coverage B(Employers Liability) S 500,000
2. Commercial General Liability—ISO ICG 17001 form or equivalent
(With County named additional insured)
Minimum Limits:
General Aggregate S 500,000
ProductWcompleted Operations Aggregate S 500,000
Each Occurrence Limit S 500,000
Pcrsonat'Advertising Injury S 500,000
Fire Damage(Any One Fire) Replacement Value of
any Structures
Medical Payments(Any One Person) S 5,000
Coverage to include:
• Premises and Operations
• Personal/Advertising Injury
• Products/Completed Operations
• Liability assumed under an Insured Contract (including defense costs
assumed under contract)
• Independent Contractors
• Additional Insured—Owners, Lessees or Contractors Endorsement.
ISO Form 2010(2004 Edition or equivalent)
• Additional Insured—Owners, Lessees or Contractors Endorsement,
ISO CC 2037(2004 Edition or equivalent)
• The policy shall be endorsed to include the following additional insured
language on the Additional Insured Endorsements specified above:
"County, its subsidiary, parent, associated and/or affiliated entities,
RECEPTION#636191,02/1612017 at 09:34:41 AM, Pgs 5 of 9.Janice K.Vos Caudill,Pitkin County,CO
AGRICULTCRAL LAND LEASF.
rat*5 UYY
successors, or assigns, its elected officials, trustees, employees,
agents, and volunteers named as an additional insured with respect to
liability and defense of suits arising out of the activities performed by, or
on behalf of the Contractor.including completed operations."
B. Proof of Insurance:
I. Each insurance policy required by the insurance provisions of this
lease shall provide the required coverage and shall not be suspended,voided
or canceled except alter thirty(30)days prior written notice has been given to
the County, except when cancellation is for non-payment of premium, then
ten (10)days prior notice may be given. Such notice shall be sent directly to
Pitkin County Open Space and Trails Department, 530 C. Main Street, 3"
Floor, Aspen,Colorado,81611. If the insurance wrier will not provide the
required notice, the Consultant/Contractor and or its insurance broker shall
notify the County of any cancellation, or reduction in coverage or limits of
any insurance within seven(7)days of receipt of insurers'notification to that
effect
2. Landlord reserves the right to request and receive a copy of any
policy and any policy endorsement at any time during the term of this lease.
2. Indemnity.
A. Tenant agrees to indemnify, hold harmless and, not excluding the County's right to
participate, defend the County, its subsidiary. parent, associated and/or affiliated
entities, successors, or assigns, its elected officials, trustees, employees, agents,
volunteers,and any jurisdiction or agency issuing permits for any work included in
the performance of this lease, hereinafter referred to as indemnitee, from all suits
and claims, including attorney's fees and cost of litigation, actions, loss, damage,
expense,cost or claims of any character or any nature arising out of the work done
in fulfillment of the tern's of this lease or on account of any act, claim or amount
arising or recovered under workers' compensation law or arising out of the failure
of Tenant to conform to any statutes,ordinances,regulation,law or court decree. It
is agreed that Tenant will be responsible for primary loss investigation, defense
and judgment costs where this contract of indemnity applies. Pitkin County and
its elected Board shall be named as an additional insured with respect
to any liability arising out of the activities performed by, or on behalf of
the Tenants on the Leased Property.
B. Tenant further shall investigate,process,respond to,adjust,provide defense
for and defend, pay or settle all claims, demands, or lawsuits related hereto at its
sole expense and shall bear all other costs and expenses related thereto, even if the
claim,demand or lawsuit is groundless,false or fraudulent,
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AGRICULTURAL LAND LEASE
PAGE 6 OF 9
3. Assignability. Tenant agrees not to assign or sublease any pan of the Property
without the written consent of the Landlord.
4. Binding Arbitration. Any disputes arising out of this lease shall be subject to
binding arbitration. The parties agree that any disputes concerning the terms and conditions
of this lease shall be submitted and finally settled by arbitration. Arbitration shall be
conducted pursuant to the rules of the American Arbitration Association and shall be
presided over by the Pitkin County Hearing Officer appointed to arbitrate Pitkin County
contract disputes. Costs of the arbitration shall be awarded to the substantially prevailing
party.
5. Severability. In the event that any provision of this lease shalt be held to be
invalid or unenforceable, the remaining provisions of this lease shall remain valid and
binding upon the parties hereto.
6. Integration and Modification. This lease represents the entire and integrated
lease between the County and Tenant and supersedes all prior negotiations, representations,
or contract, either written or oral.This lease may be amended only by written contract signed
by both the County and Tenant.
7. Records. Tenant shall maintain comprehensive, complete and accurate
books,records, and documents concerning its performance relating to this lease for a period of
three(3) years after final payment under the lease and the County shall have the right within
the three (3) year period to inspect and audit these books, records and documents, upon
demand, in a reasonable manner and at reasonable times, for the purpose of determining, by
accepted accounting and auditing standards, compliance with all provisions of the lease and
applicable law.
8. Lease Made in Colorado. The parties agree that this lease was made in
accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed
to be exclusively in the courts of Pitkin County,Colorado.
9. Attorney's Fees. In the event that legal action is necessary to enforce any of the
provisions of this lease beyond the arbitration described in Paragraph 4 above, the substantially
prevailing party, whether by final judgment or out of court settlement, shall recover from the
other party all costs and expenses of such action or suit including reasonable attorney's fees.
10. Waiver. Failure of the County to exercise any right or remedy granted under this
lease shall not have the effect of waiving or limiting the exercise of the County,or of any other
right or remedy or the indication of such right or remedy at any future time.
II. Governmental Immunity. Tenant agrees and understands that Pitkin County is
relying on and docs not waive, by any provision of this (case, the monetary limitations or
terms or any other rights, immunities,and protections provided by the Colorado Governmental
Immunity Act, § 24-10-101, et seg., C.R.S., as from time to time amended, or otherwise
available to Pitkin County or any of its officers, agents or employees. Further, nothing in this
lease shall be construed or interpreted to require or provide for indemnification of Tenant by the
RECEPTION#636191.02/16/2017 at 09:34:41 AM,Pgs 7 of 9,Janice K.Mos Caudill,Pitkin County,CO
AGRICULTURAL tdM I.EASE
PAGE r Of 9
County for any injury to any person or any property damage whatsoever which is caused by the
negligence or other misconduct of the County or its agent or employees.
12. Naticq. Any written notice required by this lease shall be deemed delivered
through any of the following: (I) hand delivery to the person at the address below; (2)
electronic, Internet or facsimile delivery with confirmation of receipt to the c-mail address or
fax number below; or(3) within three(3) days of being sent certified first class mail, postage
prepaid, return receipt requested addressed as follows below. Notice by facsimile, e-mail or
internes delivery shall be deemed given upon receipt of a confirmation by sender and notice by
personal delivery shall be deemed given when received.
To: Pitkin County Open Space&Trails
Attn:Paul Holsinger
530 E.Main Street,3"Floor
Aspen,Colorado 81611
Fax: (970)920-5198
E-Mail Address: Paull lolsinger@Pilkincounty com
With Copies
To: Pitkin County Attorney's Office
530 E.Main Street,#302
Aspen,Colorado 81611
Fax:(970)920-5198
E-Mail:John.Ely n pilkineounty.com
To: Bill Fates and Mad Perry
4239 Highway 133
Carbondale,Colorado 81623
E-Mail: wmfales@aol.com
13. DefaultNiolation of Lease Terms. Every clause herein contained is hereby made
a condition of this lease. If Tenant fails to comply with any of the material provisions of this
lease, or of any present rules and regulations or any that may be hereafter prescribed by
Landlord, or materially fails to comply with any duties imposed on Tenant by statute within
seven (7) days after delivery of written notice by Landlord specifying the non-compliance and
indicating the intention of Landlord to terminate the lease by reason thereof, Landlord may
terminate this lease. At the time of default or violation, Landlord may declare all unpaid rent for
the remaining term of the lease to be immediately due and payable within thirty(30)days notice
to Tenant. Tenant shall be responsible to Landlord for the cost of repairs, legal fees, advertising
and any other costs incurred in preparing the Property for re-renting. Tenant agrees not to return
to the premises after legal removal.
14. Section Headings. Paragraph or section headings within this lease are inserted
solely for convenience of reference, and arc not intended to, and shall not govern, limit or aid in
the construction of any terms or provisions contained herein.
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AGRICULTURAL LAND LEASE
PArn R OF
MICELLANEOUS
L
Landlord reserves the right for itself, its agents, and employees to enter the
Property at any reasonable time to inspect the Property and to work and make improvements as
the Landlord shall deem necessary. Except in exigent or emergency circumstances, Landlord
shall give Tenant forty-eight(48)hours notice before entering Property.
2. Landlord makcs no guarantee of the productivity of the Property and assumes no
liability of any condition, visible or not, which may affect agricultural productivity of the
Property.Tenant agrees to accept the Property in an as is condition.
3. Tenant shall perform all routine maintenance on the improvements on the
Property. Tenant is not responsible for the acts of third parties not associated authorized to access
the Property,but shall be responsible for all third parties, including quests or invitees, authorized
by Tenant to access the Property. If a third-party violation occurs, Tenant will report the
violation to the County immediately.
4. Tenant shall not place store or use on the Property substances that are hazardous
toxic dangerous or harmful or which are defined as hazardous substances by the Comprehensive
Environmental Response Compensation and Liability Act(CERCLA),42 USC§9601.
S. Tenant shall not pledge mongage or cause any lien to be recorded against the
Property during the tam of this lease.
6. Tenant shall not construct any building or improvement on the Property without
Landlord's written consent.
7. Tenant shall not dispose of trash garbage rubbish or refuse on the Property.
8. Tenant shall not permit any commercial activity on the Property apart from those
activities described in the agricultural plan.
(Signature Page Follows)
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AGRICULTURAL I.AND LEAL,
PAGE 9 OF
IN WITNESS WHEREOF,the Landlord and Tenant have duly executed this lease on the
day and year first above written.
TENANT: LANDLORD:
Board of County Commissioner of Pitkin
County
William E.L.Fain Bale George Ne man, s r t ate
a
Marjo ' Perm Da[eMF—
APPROVED AS TO FORM:
Jobe M
Pi . Co • 'Attorney
13Oc
CONTRACT lia---
AGRICULTURAL LAND LEASE
This lease is entered into this 17 qday of rit.41,0Ct y'-. , 2017 by and between the
Board of County Commissioners of Pitkin County, Colora o, hereinafter "Landlord" or
"County", and Bill Falcs and Marj Perry, 4239 Highway 133, Carbondale CO, 81623,hereinafter
"Tenant".
Now therefore, in consideration of the mutual covenants and promises contained herein,
the parties agree as follows:
1. Purpose and Intent. Landlord and Tenant intend that the property, all
appurtenances, water rights, easements and improvements be used for active agricultural
production. Agricultural production shall continue during the entire term of the lease without
interruption, consistent with accepted agricultural practices and the agriculture production plan
for the property proposed by Tenant and accepted by Landlord, in writing, and made part of this
lease.
2. Leased Property. Landlord in consideration of the terms contained herein leases
to the Tenant, pursuant to the attached Annual Operating Plan, the following described real
property: Thompson Creek Open Space, together with all appurtenant water rights, consisting of
the following: 2.64 cubic feet per second (c.f.s.) of water in the Low Line Ditch, easements and
improvements ("Property").
3. Lease Term. Unless earlier terminated by operation of this lease, the lease term
shall be in effect as of the date the lease is entered above, to December 31, 2027. This lease shall
not be renewed or extended except through express written amendment to this lease. Tenant is
expressly prohibited from holding over beyond the expiration of the lease term without express
written permission of Landlord.
4. Rent. Tenant agrees to pay Landlord rent at the rate of S250.00 for each calendar
year or any portion of a calendar year that this lease is in effect. This amount shall be the annual
rent for the Property. The annual rent shall be due in full to the Landlord on April 1 each year or
portion of a year that the lease is in effect. Failure to pay rent by this date constitutes a breach of
this lease.
AGRICULTURAL PROVISIONS
1. Soil Testing. It shall be the responsibility of the Tenant to conduct soil testing of
the Property once a year if changes to the operation are planned, including but not limited to,
fertilizer application, cover cropping, significant changes to the stocking rate, etc... If soil
sampling is deemed appropriate, the Annual Operating Plan will include details including dates,
sample size, and analyses (pH, nutrient levels, microbial communities, organic compounds,
etc...). The County may conduct additional soil testing periodically. All results will be shared
between the County and Tenant.
2. Weed Control. Tenant is responsible for the removal of all noxious weeds as
defined in the Colorado Noxious Weed Act. Removal of noxious weeds shall be before
individual plants go to seed. The use of any herbicide shall be particularly approved by the
AGRICULTURAL LAND LEASE
PAGE 2 OF 9
County as part of the Annual Operating Plan for the Property. Existing areas of infestation,
concern, or vectors will be identified in the Annual Operating Plan.
3. Pest Control. Tenant may engage in control, removal, or a ratification of any
pests or predators only with the express approval of the County. Methods for pest control shall
be contained in the Annual Operating Plan.
4. Fertilizers. The application of any and all fertilizer agents shall be based upon
the results of the soil tests and with the recommendation of Colorado State University. The
intent of the application of any fertilizer will be to restore or improve soil conditions. The type
of fertilizer to be used as well as its application schedule and application method shall be
contained within the Annual Operating Plan for the Property.
5. Livestock. Livestock may be maintained on the Property consistent with the
Annual Operating Plan. Livestock shall be penned or pastured so as not to cause the destruction
of pasture grasses, soil depressions or swales, or in any way that would negatively affect
irrigation practices. Watering of livestock shall be conducted in approved areas consistent with
the Annual Operating Plan.
6. Vehicle and Machinery Storage. The storage of vehicles or machinery not
actively used as part of the agricultural operation is prohibited. The maintenance of vehicles and
machinery used in agricultural operations may be conducted only in designated areas. Any spill
or loss of any fluid associated with vehicles or agricultural machinery must be collected and
disposed of off the Property consistent with applicable law.
7. Existing Vegetation. Existing hedgerows and brush areas shall not be disturbed
except as specifically allowed in writing by the County or as incorporated into the Annual
Operating Plan.
8. Emblements. Tenant shall be entitled to all emblements if the termination of the
lease is not a result of Tenant's breach and shall retain harvest rights through the end of the
growing season. If the lease is terminated or canceled as a result of Tenant's default and failure
to cure in accordance with the terms of this lease, all agricultural products shall be harvested or
otherwise gathered and sold, if possible and reasonably practical, with the proceeds of such sale
going to Landlord to cover its costs and the remainder shared between Landlord and Tenant
based on the percentage of the growing season each was in possession of the Property. The
Landlord will not possess a security interest in the emblements.
9. Fences. Tenant shall be responsible for maintaining all fences and gates in
working condition as necessary for the Tenant's proposed use, normal wear and tear excepted.
Removal of fencing is permitted with Landlord's approval and must be reinstalled upon
termination of this lease if Tenant does not obtain a concurrent lease on the Property. Tenant and
Landlord recognize that the western boundary fence is located on or within the Colorado
Department of Transportation (CDOT) Right of Way for Highway 133. CDOT may have
additional maintenance and liability regarding the fence.
10. Water Rights. Tenant shall utilize all water rights associated with the Property.
Landlord may enter the property to maintain a record of diversion or delivery amounts and the
areas of the Property watered. Tenant shall not make any improvements or changes in the
AGRICULTURAL LAND LEASE
PAGE 3 OF9
irrigation infrastructure without written permission of the Landlord. All irrigation improvements
become the property of the Landlord at the end of the lease. Tenant shall maintain all ditches,
laterals, tail runs, pipes, splitter boxes, and all other infrastructure associated with the use of
water on the Property. Maintenance shall include but not be limited to burning, cleaning and
dredging ditch courses, clearing pipelines, keeping headgates and diversion structures in
workable order.
11. Erosion. Tenant shall not engage in any activity which results in the loss of soil
or changes the topography or grade of the Property. All soil disking and tilling must be approved
in the Annual Operating Plan. Irrigation activity must be temporarily halted if any ditch, lateral,
pipeline or other irrigation infrastructure becomes damaged or inoperable.
12. Annual Operating Plan. An Annual Operating Plan shall be developed for the
County by the Open Space and Trails Department, with the Tenant's input, within two months of
the Tenant entering into this lease and will be reviewed and amended, if necessary, at least
annually (the "Annual Operating Plan") and incorporated into this lease. Landlord may
terminate this lease if Tenant fails to comply with any of the material provisions of the Annual
Operating Plan. All Annual Operating Plans shall include the type of agricultural activity to be
conducted on the Property and describe the areas of the Property that will be used for specific
agricultural activities. The plan will propose the anticipated water use and whether any changes
are needed to the existing irrigation infrastructure. The plan shall address any herbicide or
pesticide applications to be used on the Property and whether or not there are pests or predators
to be removed or eradicated from the Property. The plan shall include the anticipated season
dates for the actual agricultural activity as well as the winter cover for the areas of the Property
on which agricultural activities were conducted. The plan shall include the types, method of
application and timing for the application of any fertilizer to be used. Amendments to the plan
may be executed by the Open Space and Trails Department.
GENERAL PROVISIONS
1. Insurance. Tenant shall procure and maintain for the term of the lease, insurance
against claims for injury to persons or damage to Property which may arise from or in
connection with occupancy and use of the Property.
The insurance requirements herein arc minimum requirements for this lease and in no way
limit the indemnity covenants contained in this lease. Tenant's insurance shall be primary and
non-contributory with any insurance or self-insurance purchased by the Landlord. The
insurance companies issuing the policy or policies hereunder shall have no recourse
against the County of Pitkin for payment of any premiums or for assessments under any form
of policy. Any and all deductibles or self-insured retentions in the above-described insurance
policies shall be assumed by and be for the amount of, and at the sole expense of the Tenant.
Tenant shall assess its own risks and if it deems appropriate and/or prudent, maintain higher
limits and/or broader coverages. Tenant is not relieved of any liability or other obligations
assumed or pursuant to the lease by reason of its failure to obtain or maintain insurance
in sufficient amounts, duration, or types.
AGRICOLTURAI.LAND LEASE
PAGE 4 OF 9
A. Coverage and Limits of Insurance: Tenant shall provide coverage with
limits of liability not less than those stated below. An umbrella and/or excess
liability policy may be used to meet the minimum liability requirements provided
that the coverage is written on a"following form"basis.
1. Statutory Workers' Compensation: Colorado statutory minimums
a. Policy shall contain a waiver of subrogation against the County.
b. This requirement shall not apply when Tenant, contractor or
employee is exempt under Colorado Workers' Compensation Act., AND
when such contractor or subcontractor executes the appropriate sole
proprietor waiver form.
Minimum Limits:
Coverage A (Workers' Compensation) $ Statutory
Coverage B(Employers Liability) $ 500,000
2. Commercial General Liability—ISO ICC 0001 form or equivalent
(With County named additional insured)
Minimum Limits:
General Aggregate $ 500,000
Products/Completed Operations Aggregate $ 500,000
Each Occurrence Limit $ 500,000
Personal/Advertising Injury $ 500,000
Fire Damage(Any One Fire) Replacement Value of
any Structures
Medical Payments(Any One Person) $ 5,000
Coverage to include:
• Premises and Operations
• Personal /Advertising Injury
• Products/Completed Operations
• Liability assumed under an Insured Contract (including defense costs
assumed under contract)
• Independent Contractors
• Additional Insured—Owners, Lessees or Contractors Endorsement,
ISO Form 2010(2004 Edition or equivalent)
• Additional Insured—Owners, Lessees or Contractors Endorsement,
ISO CC 2037 (2004 Edition or equivalent)
• The policy shall be endorsed to include the following additional insured
language on the Additional Insured Endorsements specified above:
"County, its subsidiary, parent, associated and/or affiliated entities,
AGRICULTURAL LAND LEASE
PAGE 5 OF 9
successors, or assigns, its elected officials, trustees, employees,
agents, and volunteers named as an additional insured with respect to
liability and defense of suits arising out of the activities performed by, or
on behalf of the Contractor, including completed operations."
B. Proof of Insurance:
Each insurance policy required by the insurance provisions of this
lease shall provide the required coverage and shall not be suspended, voided
or canceled except after thirty(30)days prior written notice has been given to
the County, except when cancellation is for non-payment of premium, then
ten (10) days prior notice may be given. Such notice shall be sent directly to
Pitkin County Open Space and Trails Department, 530 E. Main Street, 3"
Floor, Aspen, Colorado, 81611. If the insurance carrier will not provide the
required notice, the Consultant/Contractor and or its insurance broker shall
notify the County of any cancellation, or reduction in coverage or limits of
any insurance within seven(7)days of receipt of insurers' notification to that
effect.
2. Landlord reserves the right to request and receive a copy of any
policy and any policy endorsement at any time during the term of this lease.
2. Indemnity.
A. Tenant agrees to indemnify, hold harmless and, not excluding the County's right to
participate, defend the County, its subsidiary, parent, associated and/or affiliated
entities, successors, or assigns, its elected officials, trustees, employees, agents,
volunteers, and any jurisdiction or agency issuing permits for any work included in
the performance of this lease, hereinafter referred to as indemnitee, from all suits
and claims, including attorney's fees and cost of litigation, actions, loss, damage,
expense, cost or claims of any character or any nature arising out of the work done
in fulfillment of the terms of this lease or on account of any act, claim or amount
arising or recovered under workers' compensation law or arising out of the failure
of Tenant to conform to any statutes, ordinances, regulation, law or court decree. It
is agreed that Tenant will be responsible for primary loss investigation, defense
and judgment costs where this contract of indemnity applies. Pitkin County and
its elected Board shall be named as an additional insured with respect
to any liability arising out of the activities performed by, or on behalf of
the Tenants on the Leased Property.
B. Tenant further shall investigate, process, respond to, adjust, provide defense
for and defend, pay or settle all claims, demands, or lawsuits related hereto at its
sole expense and shall bear all other costs and expenses related thereto, even if the
claim, demand or lawsuit is groundless, false or fraudulent.
AGRICULTURAL LAND LEASE
PAGE 6 OF 9
3. Assignability. Tenant agrees not to assign or sublease any part of the Property
without the written consent of the Landlord.
4. Binding Arbitration. Any disputes arising out of this lease shall be subject to
binding arbitration. The parties agree that any disputes concerning the terms and conditions
of this lease shall be submitted and finally settled by arbitration. Arbitration shall be
conducted pursuant to the rules of the American Arbitration Association and shall be
presided over by the Pitkin County Hearing Officer appointed to arbitrate Pitkin County
contract disputes. Costs of the arbitration shall be awarded to the substantially prevailing
party.
5. Severability. In the event that any provision of this lease shall be held to be
invalid or unenforceable, the remaining provisions of this lease shall remain valid and
binding upon the parties hereto.
6. Integration and Modification. This lease represents the entire and integrated
lease between the County and Tenant and supersedes all prior negotiations, representations,
or contract, either written or oral. This lease may be amended only by written contract signed
by both the County and Tenant.
7. Records. Tenant shall maintain comprehensive, complete and accurate
books, records, and documents concerning its performance relating to this lease for a period of
three (3) years after final payment under the lease and the County shall have the right within
the three (3) year period to inspect and audit these books, records and documents, upon
demand, in a reasonable manner and at reasonable times, for the purpose of determining, by
accepted accounting and auditing standards, compliance with all provisions of the lease and
applicable law.
8. Lease Made in Colorado. The parties agree that this lease was made in
accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed
to be exclusively in the courts of Pitkin County, Colorado.
9. Attorney's Fees. In the event that legal action is necessary to enforce any of the
provisions of this lease beyond the arbitration described in Paragraph 4 above, the substantially
prevailing party, whether by final judgment or out of court settlement, shall recover from the
other party all costs and expenses of such action or suit including reasonable attorney's fees.
10. Waiver. Failure of the County to exercise any right or remedy granted under this
lease shall not have the effect of waiving or limiting the exercise of the County, or of any other
right or remedy or the indication of such right or remedy at any future lime.
I 1. Governmental Immunity. Tenant agrees and understands that Pitkin County is
relying on and does not waive, by any provision of this lease, the monetary limitations or
terms or any other rights, immunities, and protections provided by the Colorado Governmental
Immunity Act, § 24-10-101, et seq., C.R.S., as from time to time amended, or otherwise
available to Pitkin County or any of its officers, agents or employees. Further, nothing in this
lease shall be construed or interpreted to require or provide for indemnification of Tenant by the
AGRICULTURAL LAND LEASH
PAGE 7 OF 9
County for any injury to any person or any property damage whatsoever which is caused by the
negligence or other misconduct of the County or its agent or employees.
12. Notice. Any written notice required by this lease shall be deemed delivered
through any of the following: (I) hand delivery to the person at the address below; (2)
electronic, internet or facsimile delivery with confirmation of receipt to the e-mail address or
fax number below; or (3) within three (3) days of being sent certified first class mail, postage
prepaid, return receipt requested addressed as follows below. Notice by facsimile, e-mail or
internet delivery shall be deemed given upon receipt of a confirmation by sender and notice by
personal delivery shall be deemed given when received.
To: Pitkin County Open Space & Trails
Attn: Paul Holsinger
530 E. Main Street, 3"Floor
Aspen, Colorado 81611
Fax: (970) 920-5198
E-Mail Address: Paul.Holsinger@Pitkincounty.com
With Copies
To: Pitkin County Attorney's Office
530 E. Main Street,4302
Aspen, Colorado 81611
Fax: (970) 920-5198
E-Mail: John.ElyMpitkincounty.com
To: Bill Fales and Mari Perry
4239 Highway 133
Carbondale, Colorado 81623
E-Mail: wmfales@aol.com
13. DefaultNiolation of Lease Terms. Every clause herein contained is hereby made
a condition of this lease. If Tenant fails to comply with any of the material provisions of this
lease, or of any present rules and regulations or any that may be hereafter prescribed by
Landlord, or materially fails to comply with any duties imposed on Tenant by statute within
seven (7) days after delivery of written notice by Landlord specifying the non-compliance and
indicating the intention of Landlord to terminate the lease by reason thereof, Landlord may
terminate this lease. At the time of default or violation, Landlord may declare all unpaid rent for
the remaining term of the lease to be immediately due and payable within thirty (30) days notice
to Tenant. Tenant shall be responsible to Landlord for the cost of repairs, legal fees, advertising
and any other costs incurred in preparing the Property for re-renting. Tenant agrees not to return
to the premises after legal removal.
14. Section Headings. Paragraph or section headings within this lease are inserted
solely for convenience of reference, and are not intended to, and shall not govern, limit or aid in
the construction of any terms or provisions contained herein.
AGRICULTURAL LAND LEAS'.
PAGE R OF 9
MICELLANEOUS
1. Landlord reserves the right for itself, its agents, and employees to enter the
Property at any reasonable time to inspect the Property and to work and make improvements as
the Landlord shall deem necessary. Except in exigent or emergency circumstances, Landlord
shall give Tenant forty-eight(48)hours notice before entering Property.
2. Landlord makes no guarantee of the productivity of the Property and assumes no
liability of any condition, visible or not, which may affect agricultural productivity of the
Property.Tenant agrees to accept the Property in an as is condition.
3. Tenant shall perform all routine maintenance on the improvements on the
Property. Tenant is not responsible for the acts of third parties not associated authorized to access
the Property, but shall be responsible for all third parties, including quests or invitees, authorized
by Tenant to access the Property. If a third-party violation occurs, Tenant will report the
violation to the County immediately.
4. Tenant shall not place store or use on the Property substances that are hazardous
toxic dangerous or harmful or which are defined as hazardous substances by the Comprehensive
Environmental Response Compensation and Liability Act(CERCLA), 42 USC § 9601.
5. Tenant shall not pledge mortgage or cause any lien to be recorded against the
Property during the term of this lease.
6. Tenant shall not construct any building or improvement on the Property without
Landlord's written consent.
7. Tenant shall not dispose of trash garbage nibbish or refuse on the Property.
8. Tenant shall not permit any commercial activity on the Property apart from those
activities described in the agricultural plan.
(Signature Page Follows)
AGRICULTURAL LAND LEASE
PAG&90F9
IN WITNESS WHEREOF, the Landlord and Tenant have duly executed this lease on the
day and year first above written.
TENANT: LANDLORD:
Board of County Commissioners of Pitkin
County
William E. L. Fales ate George Ne man, • air 4 ate
Marjorie Perry Date
APPROVED AS TO FORM:
John M
PiCo Attorney
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