HomeMy WebLinkAboutbocc.ord.014.2018 AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN
COUNTY, COLORADO,AUTHORIZING AN AGRICULTURAL LEASE OF THE
EMMA OPEN SPACE SCHOOLHOUSE AND SOUTH LEASE AREAS BETWEEN TIIE
BOARD OF COUNTY COMMISSIONERS AND TWO ROOTS FARM LLC
ORDINANCE NO. //'/ -2018 �Jyy CONTRACT
RECITALS: Tr
1 Pursuant to 30-35-301 C.R.S.,the Board of County Commissioners of Atkin County, 4{4atkei0
Colorado("BOCC"), a home rule county, is authorized to make and publish ordinances
for carrying 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 Board of Trustees IOSTB)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 and Policy was adopted by the OSTB on October 7,
2014(updated September 21,2017) to implement the County's Procurement Code and
guide OST staff in selecting appropriate tenants to manage and lease OST agricultural
properties
6 The Emma Open Space is comprised of approximately 58 acres located in the Emma area
of Pitkin County and was acquired by Pitkin County June 22,2000 The property was
acquired to preserve the agricultural, scenic, wildlife, and recreational values of the
property.
7 The Procurement Code requires BOCC approval pursuant to an Ordinance for the leasing
of any Pitkin County property for more than one year.
8. the Emma Open Space Management Plan was adopted on June 26, 2017, and identifies
historically leased areas continue to be leased using the County's lease bid process and
policy as a management action
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RECEPTION#:647148, R.$0.00. D: $0.00
DOC CODE: ORDINANCE Ordinance 0/ i -2018
Pg 1 of 12,05/07/2018 at 10:30:29 AM
Janice K.Vos Caudill, Pitkin County, CO
9 On January 11, 2018, the OSTB recommended that the BOCC approve the proposed
lease for the Emma Open Space Schoolhouse and South Lease Areas between the BOCC
and Two Roots Farm.
10. 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 Authorizing an Agricultural Lease of the
Emma Open Space Schoolhouse and South Lease Area and authorizes the Chair or the Chair's
designee to sign the Ordinance and upon the satisfaction of the County Attorney as to form,
execute any other associated documents necessary to complete this matter.
Signatures on next page
Ordinance Ofq -2018
INTRODUCED AND FIRST READ ON THE 14TH DAY OF FEBRUARY, 2018 AND SET
FOR SECOND READING AND PUBLIC HEARING ON THE 28TH DAY OF FEBRUARY,
2018.
NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE
RESOLUTION PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE /6.4' DAY OF
.obn/4„,” , 2018.
NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE RESOLUTION POSTED
ON THE OFFICIAL,,PITKIN COUNTY WEBSITE (www.pitkincounty corn) ON THE
/in- DAY OF ithnoe,e,4.3-- 2018.
IL
ADOPTED AFTER FINAL READING AND PUBLIC HEARING ON THE .q 8 DAY
OF 7,,GJY2018.
PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION, IN THE ASPEN
TIMES WEEKLY ON THE 9 DAY OF in AA,L(.r , , 2018.
POSTED BY TITLE AND SHORT SUMMARY ON THE OFFICIAL PITKIN COUNTY
WEBSITE(www.nrtkincounty.com I ON THE )4 DAY OF YJJa,kcL ,2018
AT _ T BOARD OF COUNTY COMMISSIONERS
BY , I ,i „ ByOatti
Jet -tte Jones Patti Clapper, Chair
De ty County Cler
Date: 03— 14 —I $
APPROVED AS TO FORM MANAGER APPROVAL
John Ely,County Attorney Jon Pe cock, County Manager
-OPEN SPACE & TRAILS
•
A
Gary Tennenbaum,Director
Ordinance ON -2018
CONTRACT
AGRICULTURAL LAND LEASE # / `/7 0/
This lease is entered into this 3frday of kan Oa.c , 201T by and between the
Board of County Commissioners of Pitkin County,Coloradd,hereinafter"Landlord"or"County",
and Two Roots Farm LLC, P.O Box 1434, 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.
Emma Open Space South Lease Area and Schoolhouse Lease Area, together with all appurtenant
water rights, consisting of the following: 0.5 cubic feet per second (cfs) of water in the Home
Supply Ditch, 1.0 cubic feet per second (cfs) of the Cramer Ditch, and 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, 2028. 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.
A Tenant's Option to Extend After five (5) years, the Tenant may extend the
initial term of this lease for an additional 10 (ten) years with written approval of Landlord,
subject to all the provisions of this lease.
4. Rer' _,iant agrees to pay Landlord rent at the rate of$ 500.00 for each calendar
year dr 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. Except as modified by the Annual Operating Plan, it shall be the
responsibility of the Tenant to test the soil of the Property twice a year. Soil samples shall be
gathered from a representative portion of the leased property. Soil samples will be gathered during
the month of May and during the month of September. Soil samples will be tested through the
Colorado State University extension office
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
AGRICULTURAL LAND LEASE
PAGE 2 OF 9
plants go to seed. The use of any herbicide shall be particularly approved by the County as part
of the Annual Operating Plan for the Property
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. Overnight management will be considered if requested
by the Tenant with written approval from Landlord.
4. Fertilizers. The application of any and all fertilizer agents shall he 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.
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 Except in exigent or emergency circumstances, Landlord shall give
Tenant forty-eight (48) hours notice before entering Property. Tenant shall not make any
permanent improvements or changes in the irrigation infrastructure without written permission of
the Landlord. All irrigation improvements become the property of the Landlord at the end of the
AGRICULTURAL LAND LEASE
PAGE 3 OF 9
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. Major 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.
13. Organic Certification. Tenant, at Tenant's sole discretion and expense, shall be
permitted to seek and maintain organic status certification for the property with an Agency certified
to approve and authorize organic agricultural land. In the event Tenant receives approval from
said Agency, Landlord hereby agrees the rules and regulations governing the use of the property
in terms of pest control, weed control, fertilizers and the like shall be regulated by the certifying
Agency and National Organic Program(NOP)rules and regulations,of which Tenant shall comply
with in order to maintain the organic certification for the property.
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 of, and at the sole expense of the Tenant.
AGRICULTI IRAL LAND I EASE
PAGE 4 OF Q
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.
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.
h. 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 ICG 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
AGRICULTURAL LAND LEASE
PAGE 5 OF 9
• Additional Insured—Owners, Lessees or Contractors Endorsement,
ISO Form 2010 (2004 Edition or equivalent)
• Additional Insured—Owners, Lessees or Contractors Endorsement,
ISO CG 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,
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 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, 3rd 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.
AGRICULTURAL LAND LEASE
PAGE 6 OF 9
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.
3. Assignability Tenant agrees not to assign or sublease any part of the Property
without the written consent of the Landlord.
4. 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.
5. 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.
6. 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.
7. 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.
8. Attorney's Fees. In the event that legal action is necessary to enforce any of the
provisions of this lease,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.
9. 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.
10 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 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.
AGRICULTURAL I AND LEASE
PAGE 7 of 9
11. Notice. Any notice required or permitted under this Agreement shall he in writing
and shall be provided by electronic delivery to the e-mail addresses set forth below and by one
of the following methods I) hand-delivery or 2) registered or certified mail, postage pre-paid to
the mailing addresses set forth below, Each party by notice sent under this paragraph may change
the address to which future notices should be sent. Electronic delivery of notices shall he
considered delivered upon receipt of confirmation of delivery on the part of the sender. Nothing
contained herein shall be construed to preclude personal service of any notice in the manner
prescribed for personal service of a summons or other legal process. _
To: Pitkin County Open Space &Trails
Attn: Paul Holsinger
806 West Hallam Street
Aspen. Colorado 81611
Fax: (970)92(15198
E-Mail Address: paul.holsinger@pitkincounty.com
With Copies
To: Pitkin County Attorney's Office
123 Emma Road, #204
Basalt, CO 81621
Fax: (970) 920-5198
E-Mail: Attorney@ pitkincounty.com
To: Two Roots Farm LLC
P.O. Box 1434,
Carbondale,CO 81623
E-Mail. harper.kaufman@gmail.com
E-Mail: cmlabar@gmail.com
12. llefaulWiolation 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 fads 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. Should
Tenant, for any reason, be in default under the terms of this Lease, Tenant shall have reasonable
and adequate time,which shall be seven(7)days as set forth above.in which to cure the same after
written notice to Tenant by Landlord. 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.
AGRICULTURAL LAND LEASE
PAGE 8 OF 9
13. 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
MISCELLANEOUS
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 shall repair any damage to the improvements on the Property that are the result of acts of
third parties.
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 hen to be recorded against the
Property during the term of this lease.
6. Tenant shall not construct any permanent building or improvement on the Property
without Landlord's written consent Temporary structures will be included in the Annual
Operating Plan
7. Tenant shall not dispose of trash garbage rubbish or refuse on the Property.
Properly managed composting and composting materials will be allowed in designated areas as
per the Annual Operating Plan.
8. Tenant shall not permit any commercial activity on the Property apart from those
activities described in the agricultural plan.
9. As used herein, agncultural production is defined as the raising of animals,
including but not limited to,dairy cattle,beef cattle, poultry, sheep, swine, goats, and bees, for the
purpose of selling such animals or a product derived from such animals in the regular course of
business, and use for horticultural purposes, including but not limited to, the raising of fruits,
vegetables, berries, nuts and other foods for human consumption, feed for animals, flowers, trees,
nursery,or greenhouse products, and ornamental plants and shrubs for the purpose of selling such
products in the regular course of business
AGRICULTURAL LAND LEASE
PAGE 9 OF 9
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
By: i' 2 Z- 18 By: U u� �` 0,2.;$- le
T •o Roots Farm LLC Date Patti Clapper, Chair Date
APPROVED AS TO FORM:
fra,1414
Richa ! Y. Neiley III
Assistant Pitkin County Attorney
AGRICULTURAL LAND LEASE
This lease is entered into this day of h/ua i`•� , 201 by and between the
Board of County Commissioners of Pitkin County,Coloradtl, hereinafter"Landlord"or"County",
and Two Roots Farm LLC, P.O. Box 1434, Carbondale, CO 81623, hereinafter "Tenant".
Now therefore, in consideration of the mutual covenants and promises contained herein,
the parties agree as follows:
L 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
Emma Open Space South Lease Area and Schoolhouse Lease Area, together with all appurtenant
water rights, consisting of the following: 0.5 cubic feet per second (cfs1 of water in the Home
Supply Ditch, 1.0 cubic feet per second I cfs) of the Cramer Ditch, and 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, 2028. 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.
A Tenant's Option to Extend. After five (51 years, the Tenant may extend the
initial term of this lease for an additional 10(ten) years with written approval of Landlord.
subject to all the provisions of this lease.
4. Rer• .cant agrees to pay Landlord rent at the rate of S 500.00 for each calendar
year or any portion of a calendar year that this lease is in effect. This amount shall he the annual
rent for the Property. The annual rent shall be due in full to the Landlord on April I each yew 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
Soil Testing. Except as modified by the Annual Operating Plan, it shall he the
responsibility of the Tenant to test the soil of the Property twice a year. Soil samples shall be
gathered from a representative portion of the leased property. Soil samples will be gathered during
the month of May and during the month of September Soil samples will he tested through the
Colorado State University extension office.
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
1111111 IIIIIIIIIIIIIIIIDIIIIIII11111IIIIIIMIIII 1111IIIIIIIIIIIIIIIIIII
RECEPTION#: 647149, R: $0.00, D• $0.00
DOC CODE: LEASE
Pg 1 of 9,05/07/2018 at 10:30:30 AM
Janice K.Vos Caudill, Pitkin County,CO
AGRICULTURAL LAND LEASE
PAGE 2 OF 9
plants go to seed The use of any herbicide shall be particularly approved by the County as part
of the Annual Operating Plan for the Property.
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. Overnight management will be considered if requested
by the Tenant with written approval from Landlord.
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 he 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. Embiements. 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 he 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.
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. Except in exigent or emergency circumstances, Landlord shall give
Tenant forty-eight (481 hours notice before entering Property. Tenant shall not make any
permanent improvements or changes in the irrigation infrastructure without written permission of
the Landlord. All irrigation improvements become the property of the Landlord at the end of the
AGRICULTURAL LAND LEASE
PAGE 3 OF 9
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.
1 l Erosion. Tenant shall not engage in any activity which results in the loss of soil or
changes the topography or grade of the Property. Major 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 least
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 he 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.
13 Organic Certification. Tenant, at Tenant's sole discretion and expense, shall be
permitted to seek and maintain organic status certification for the property with an Agency certified
to approve and authorize organic agricultural land. In the event Tenant receives approval from
said Agency, Landlord hereby agrees the rules and regulations governing the use of the property
in terms of pest control, weed control, fertilizers and the like shall be regulated by the certifying
Agency and National Organic Program(NOP) rules and regulations,of which Tenant shall comply
with in order to maintain the organic certification for the property.
GENERAL PROVISIONS
L 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 of, and at the sole expense of the Tenant.
AGRICULTURAL I.AND LEASE
PAGE 4 OF 9
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.
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 he 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.
h. 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 ICG 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
PersonaUAdvertising Injury $ 500000
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
AGRICULTURAL LAND LEASE
PAGE 5 OF 9
• Additional Insured—Owners, Lessees or Contractors Endorsement,
ISO Form 2010 (2004 Edition or equivalent)
• Additional Insured—Owners, Lessees or Contractors Endorsement.
ISO CG 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,
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 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, 3N 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 171 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
AGRICULTURAL LAND LEASE
PAGE 6 OF 9
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.
3. Assignability. Tenant agrees not to assign or sublease any part of the Property
without the written consent of the Landlord.
4. Severability. In the event that any provision of this lease shall he held to he
invalid or unenforceable, the remaining provisions of this lease shall remain valid and binding
upon the parties hereto.
5. 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.
6. Records. Tenant shall maintain comprehensive, complete and accurate books,
records, and documents concerning its performance relating to this lease for a period of three (31
years after final payment under the lease and the County shall have the right within the three 13)
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.
7. 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.
8. Attorney's Fees. In the event that legal action is necessary to enforce any of the
provisions of this lease,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.
9. 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.
10. 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 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.
AGRICULTURAL LAND LEASE
PAGE 7 OF 9
11. Notice Any notice required or permitted under this Agreement shall he in writing
and shall he provided by electronic delivery to the e-mail addresses set forth below and by one
of the following methods 11 hand-delivery or 2) registered or certified mail, postage pre-paid to
the mailing addresses set forth below. Each party by notice sent under this paragraph may change
the address to which future notices should be sent Electronic delivery of notices shall be
considered delivered upon receipt of confirmation of delivery on the part of the sender. Nothing
contained herein shall be construed to preclude personal service of any notice in the manner
prescribed for personal service of a summons or other legal process.
To: Pitkin County Open Space & Trails
Attn: Paul Holsinger
806 West Hallam Street
Aspen, Colorado 81611
Fax: (970) 920-5198
E-Mail Address: paul.holsinger@pitkincounty.com
With Copies
To: Pitkin County Attorney's Office
123 Emma Road,#204
Basalt, CO 81621
Fax (970) 920-5198
E-Mail Attorney@pitkincounty.com
To: Two Roots Farm LLC
P.O. Box 1434,
Carbondale, CO 81623
E-Mail: harper.kaufman@gmail.com
E-Mail: cmlabar@gmail.com
12. 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 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. Should
Tenant, for any reason, be in default under the terms of this Lease, Tenant shall have reasonable
and adequate time,which shall he seven (7) days as set forth above, in which to cure the same after
written notice to Tenant by Landlord. 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.
AGRICULTURAL LAND LEASE
PACE S OF 9
13. 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.
MISCELLANEOUS
I. 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 shall repair any damage to the improvements on the Property that are the result of acts of
third parties
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 permanent building or improvement on the Property
without Landlord's written consent. Temporary structures will he included in the Annual
Operating Plan.
7 Tenant shall not dispose of trash garbage rubbish or refuse on the Property.
Properly managed composting and composting materials will be allowed in designated areas as
per the Annual Operating Plan.
8 Tenant shall not permit any commercial activity on the Property apart from those
activities described in the agricultural plan.
9. As used herein, agricultural production is defined as the raising of animals,
including but not limited to, dairy cattle, beef cattle,poultry, sheep. swine, goats, and bees, for the
purpose of selling such animals or a product derived from such animals in the regular course of
business, and use for horticultural purposes, including but not limited to, the raising of fruits,
vegetables, berries, nuts and other foods for human consumption, feed for animals, flowers, trees,
nursery,or greenhouse products, and ornamental plants and shrubs for the purpose of selling such
products in the regular course of business.
AGRICULTURAL LAND LEASE
PAGE 9 oF9
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
By: 2/fl//8 By: 1 " ( Y-(/17?lL 0)- $- 15
T o Roots Farm LLC Date Patti Clapper, Chair Date
APPROVED AS TO FORM:
SFA 0
Richa Y. Neiley III
Assistant Pitkin County Attorney