HomeMy WebLinkAboutbocc.ord.010.2016 RECEPTION#: 635793, 01/31/2017 at 10:97:38 AM, 1 OF 11, R $0.00
Janice K. Vos Caudill, Pitkin County, CO
CONTRACT# 1-0-014/6'
•
ORDINANCE OF THE BOARD OP COUNTY COMMISSIONERS
OF PITKIN COUNTY,COLORADO
AUTHORIZING AN AGRICULTURAL LEASE OF THE W HEAT'LFY OPEN SPACE
ORDINANCE NO. =2016
I. 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(OSTB)to guide the expenditure of those funds.
2. The Open Space and Trails Program(OST)is charged with protecting agriculture,open
space.habitat,scenic view planes,water rights and river access.
3. 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
4. The Wheatley Open Space is comprised of 105 acres located in the Snowmass Canyon area
of the Roaring Fork Valley and acquired by Pitkin County January 7,2015. The Property was
acquired to present the agricultural,scenic,wildlife,and recreational values of the Property.
5. The Procurement Code requires BOCC approval pursuant to an Ordinance for the leasing of
any Pitkin County property for more than one year.
6. The Wheatley Open Space Management Plan was adopted December 3,2015 and identities
24 irrigated acres to be made available for leasing by an agricultural producer.
7. A procurement selection team comprised of Open Space Department staff have determined
that multi-year lease will best encourage wise stewardship of these agricultural lands.
•
8. On May 19,2016,the OSTB recommended that the F1OCC approve the proposed lessee for
the Wheatley Open Space agricultural lease area.
NOW,THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Pitkin
County,Colorado that:
I. Martin&Company obtain an agricultural lease on the Wheatley Open Space:
2. Upon approval of the agricultural lease by the Open Space and Trails Director and County
Attorney,the Chair is authorized to execute the leases in substantially the form attached
hereto. y
INTRODUCED AND FIRST READ ON TIIE_J DAY OF �F1 G'c.}- ,2016 AND
SET FOR SECOND READING AND PUBLIC HEARING ON THE rOV DAY OF
I1 4a 2016.
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Janice K. Vos Caudill, Pitkin County, CO
NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THF:
ORDINANCE PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE '3.0bl . DAY OF
2016.
NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE ORDINANCE POSTED ON
THE /
� tOFFICIAL PITKIN COUNTY WEBSITE(www.pitkincounty.com)ON THE 3&TU" DAY
OF 7 „) 2016.
AD PTEO AFTER FINAL READING AND PUBLIC HEARING ON THE DAY OF
(gOH Le 2016.
PUBLISHED BY TITLE AND SHORT SUMMA Y,AFTER ADOPTION,IN THE ASPEN
TIMES WEEKLY ON THE /60- DAY OF cf"N '* 2016.
POSTED BY TITLE AND SHORT SUMMARY ON THE OFFI IAL PLTKIN COUNTY
WEBSITE(www.pitkincounty.com)ON THE/On'DAY OF Ma ,2016.
ATTE` : BOARD OF COUNTY COMMSSI
111111.1110.
Jet#-tte Jones Rachel E.Richards,Chair
DcPuty County Clam
Date:_ /434.&)
APPROVED AS TO FORM: MANAGER APPROVAL
John tomcy on P .cock,County Manager
tx
' Dale Will,Director
Open Space and Trails
•
2
RECEPTIONA: 635793, 01/31/2017 at 10:47:38 AM, 3 OF 11,
Janice K. Vos Caudill, Pitkin County, CO
'
AGRICx1ILfTURAL LAND LEASE
TIM Tlease is entered into t 15 U day of ( IJ kit 2016 by and bemcen the
Board of County Commissioners of Atkin County, Colorado, hereinafter "Landlord' or
"County",and Marlin R Company LLC,0776 LinIe Woody Creek Road,P.O.Box 670,Woody
Creek,Colorado 51656,hereinafter'Tenant". _
Now therefore,in consideration of the mutual covenants and promises contained herein,
the patties agree as follows:
I. awis/Sigtot, Landlord and Tenant intend that the property, all
appurtenances, water rights, easements and improvements be used for active agricultural
production. Agricultural pmduclion 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 Tortoni and accepted by landlord,in welling,and made Pan of this
lease.
2. teased Property. Landlord in consideration of the teens contained herein leases
to the Tenant,pursuant to the attached Annual Operating Plan,the following described real
properly:Wheatley Open Space irrigated acreage as represented on the Declaration of Covenants
for the Wheatley Ditch OPeratiom recorded in the land records of Pitkin County on October 23,
2014,at reception number 614776,together with all appurtenant water rights,consisting of the
following: 3.0 Cubic Feet per Second of water from the Wheatley 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 31,2023. This lease shall
not be renewed or extended except through express written amendment to this lase. Tenant is
expressly prohibited from holding over beyond the expiration of the lease term without express
written permission of Landlord.
4. kn. Tenant agrees to pay Landlord rent at the rate ofS100.00 for each calendar
year or any portion ofa calendar year that the Property is primarily used for grass hay production
and 5300.00 for each calendar yeas or any portion of a calendar year that any portion of the
Property is planted in potatoes while 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 I each year or
portion ofa year that the lease is in effect Failure to pay rent by this date constitutes a breach of
this lease.
5. Optionto Purchase Equipment. Tenant agrees to offer to Conray at the end of the
leasehold all equipment related to the side toll irrigation system used on the property at a market
grid
AGRICULTURAL PROVISIONS
I. Soil Testine. Eacept 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
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Janice K. Vos Caudill, Pitkin County, CO
AGPICLLWMLnAhm I L 5E
PAGE2OFl0
during the month of May and during the month of September. Soil samples will be tested
through the Colorado State University extension office or other appropriate entity.
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
County as pan of the Annual Operating Man for the Property.
3. pest Control. Tenant may engage in control,removal,or a ratification of any
Pere or predators only with the express approval of the County. Methods for pest control shall
be contained in the Annual Operating Plan.
4. Fenix. 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 PW for the Property.
5. Lixk. Livestock may be maintained on the Property consistent with the
Annual Operating Plan. Livestock shall be penned or pastured sons not to cause the destination
of pasture grasses, soil depressions or males, 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. 1s_Aa MahineMm "" _The storage of vehicles or machinery not
actively used as pan 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 emaciated with vehicles or agricultural machinery must be collected and
disposed of off the Property consistent with applicable law.
7. Existing Veectatiop. 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. £mbtements. Tenant shall be entitled to all entitlements if the termination of the
lease is not a result of Tenant's breach and shill retain harvest rights through the end of the
growing season. If the lease is terminated or canceled as a result of Tenant's default end failure
to cure in accordance with the letmt 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 au 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 gazes in
working condition as necessary for The Tenant's proposed use,normal wear and tear excepted.
Removal of fencing is pertained with Landlord's approval and must be reinstalled upon
termination of this lease if Tenant does not obtain a concurrent lease on the Property.
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Janice K. Vos Caudill, Pitkin County, CO
amucvLTua.t.LAND LEASE
PAGE 3 0f 10
10. Water Rights. Tenant shall utilize all water tiahts associated with the Property.
Landlord may enter the property to maintain a record of diversion or delivery amounts end the
areas of the Property%meted. Tenant shall not make any Improvements or changes in the
irrigation infrastructure without written permission nfthe Landlord. All irrigation improvements
become the property of the landlord et 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. E@skc.. Tenant shell not engage in any activity which results in the loss of soil
orchanges the topography or grade of thePrope ty. 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 inigatlon inhamucmre becomes damaged or inoperable.
12. Annual Clowning Nan. 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 necesouy,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 Properly 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 inframucture. The plan shall address any herbicide or
pesticide applications to be used on the Progeny and whether or not there are pests or predators
to be removed or eradicated from the Property. The plan shall include the anticipated season
dares for the actualapicultwel activity as well es the winter cover for the areas of the Property
on which agcicultunl activities were conducted. The plan shag include the types,method of
application and dining for the application of any fertilizer to be used. Amendments to the plan
may be executed by the Open Space and Trails Department.
13. Conservation Easement Tenant shall comply with the terms of the Dart Ranch-
Wheatley Tract t Second Amendment and First Restatement of Deed of Conservation Easement
recorded in the land records of Pitkin County on January1,2015,at reception number 616569,
and attached hereto as Exhibit A.
GENERAL PROVISIONS
I. humus. Tenant shall procure and maintain for the tam 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 humane requirements herein ere 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 imam“ or self-insurance purchased by the Landlord. The
insurance companies issuing the policy or policies hereunder shall have no
against the County of Pitkin for payment of any Premiums or for assessments under any form
RECEPTION#: 635793, 01/31/2017 at 10:47:38 AM, 6 OF 11,
Janice K. Vas Caudill, Pitkin County, CO
AGRICULTURAL LAND LEASE
PAOf4OF 10
of policy.Any and all deductibles or self-insured retenfims in the Obote-described insurance
policies shall be assured by and be for the amount of,acd 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 lase by reason of Its failure to obtain or maintain insurance
in sufficient mesmts,duration,or types.
A. Co d ymkpf I�„e: Tenant shall provide avenge 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 requitement shill 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) I Statutory
Coverage B(Employer Liability) S 500,000
2. Commercial General Liability-ISO COI0001 form or equivalent
(With County named addliond insured)
Minimum Limits:
General Aggregate E 500,000
Prnducis/CompinN Operations Agwaypte $ 500,000
Each Occurrence Limit S 500,000
PersonaIAdvenising Injury E 500.000
F Ilarnage(Any One Fire) Replacement Value of
any Structures
Medical Payments(My One Person) S 5.000
Coverage Co include:
• Premises and Operations
• Personal/Advertising)Nary
• Products/Completed Operations
• Liability assumed under an Insured Contract (including defense costa
RECEPTION#: 635793, 01/31/2017 at 10:47:38 AM, 7 OF 11,
Janice K. Vos Caudill, Pitkin County, CO
nuuctLTURAL LAND LEASe
MMGE5 OF 10
assumed under contract)
• Inderendent Contractors
• Additional Insured—Owners. I rte rte or Contractors Endorsement,
ISO Form 2010(2004Edltion or equivalent)
• Additional Insured—Oa-nen,lessees or Convectors Endorsement,
ISO CO 2037(2004 Edition or equivalent)
• The policy shall be endorsed to include the following additional insured
language en the Additional Insured Endorsements specified above:
"County, its subsidiary. parent, associated and/or affdielcd cntifies,
successors, or assigns, its elected officials, trustees, employees,
agents, and valiance-Ts named as an additional insured with respect to
liability and defense of suits arising out of the activities performed by,or
on behalf oldie Convector,including completed operations."'
B. Proof of Insumnre:
1_ Each insurance policy required by the insurance provisions of this
Ease shall provide the required courage and shall not be suspended.voided
or canceled except after Misty(30)days prior written notice has been given to
the Cowl,except woes evteellelion is for non.peytnen of premium,then
ten{I0)days palm notice may be given.Such notice shall be sem directly to
Nddn County Open Space and haBs Department,530 E.Main Street,Yd
Floor,Aspen,Colorado,81611. If the insunncc carrier rill not provide the
required notice,the CansulansConuacmr and or its insurance broker shall
notify the County of any cancellation,or reduction in envelop or limits of
arty insurance within seven(7)days of receipt of insurers'nodfewlion to that
effect.
2. Landlord=serves the right to request and receive a copy of any
policy and any policy endorsement at any time during the teen of this lease.
2. Indemnity.
A. Tenant agrees to indemnify,hold harmless and,not excluding the Coveys right to
participate.defend the County.its subsidiary,parent,associated and/or affiliated
entities, successors,or assigns, its elected officials, trustees,employees, enema,
vnlwdeen,and any jurisdiction or agency issuing permits for any work included in
the performance of this lease,hmimfler refemed to as wdennitce,from all suits
end claims,'oxluding attorney's fees and cost of litigation,actions,loss,damage.
expense,cost or claivu of arty character or any nature arising out of the wank done
in fidfi0ment of the terms of this los 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 statute;ordinvrces,regulaiaq law or court decme, ft
is agreed that Tenant will be responsible %r pirnety lou inveidgatioa,defame
and judgment costs where this cornet of indemmry applies. Ellin!'County and
its elected Board shall be named as an additional insured with respect to
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Janice K. Vos Caudill, Pitkin County, CO
ACRIClh41IPAL UFO LEASE
PAGE 6Of 10
any liability arising out of the activities performed by,or an behalf of the
Tenants on the Leased Properly.
B. Tenant further shall investigate,process,respond to,adjust,provide defame
for and defend,pay w settle ell claims,demands,or lawsuits related hereto at its
sole expense and shall bear all other costs and expenses related thereto,men if the
claim demand or lawsuit is poundless,false or fraudulent
3. AS ignabilitv. Tenant agrees net to assign or sublease any pan of the Progeny
without the written consent of the Landlord.
4. hjadjntrAlltatig2A Any disputes arising out of this(ease shall be subject to
binding arbitration. The parties agree that any disputes concerning the terms and conditions
of this lout shall be submitted and finally settled by asbittetion. Arbitration shall be
condoned pursuant to the rites of the American Arbitration Association and sha0 be
presided over by the Pitkin County Hearing Officer appointed to arbitrate Piikla County
contract disputes, Cats of the arbitration shell be awarded to the substantially prevailing
PRAY.
5. Severability. In the event that any provision of this least shell be lick to be
invalid or unenforceable, the remaining provisions of this lease shall remain valid and
binding upon the parties hereto.
6. lgteaaIion and Modification. This lease represents the entire and integrated
lease between the County and Tenant and supersedes all prior negotiations representations,
or contract,either wain or onL This lease may be amended only by written contract signed
by both the County and Tenant.
7. ponds. Tenant shall maintain comprehensive, complete and accurate
books,records,end 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 hove 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 pnnisionv of the lease and
applicable law.
S. Lease Made in Colorado The parties agree that this lease was made in
accordance with the have 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 Fe% 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 pony,whether by final judgment or mut of coon settlement,shall recover horn the
oder party all costs and expenses of such action or suit including reasonable attorneys fees.
RECEPTIONIt: 635793, 01/31/2017 at 10:47:38 AM, 9 OF 11,
Janice K. Vos Caudill, Pitkin County, CO
nOKICOL1 URAL LAND(EASE
PAGE7OF 10
IC. Waiver. Failure of the County to crerise any right or remedy granted. der 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 Net Pitkin County is
relying on and dao not waive,by any pmvsion of this lease,the monetary limitations or
terms or an other rights.immunities,and mentions provided by the Colorado Governmental
Immunity Act. §24-10-101, et seq, CRS, es from time to time amended,or otherwise
available to Pitkin County or any of its officers,agents or employees Rinker,nothing in this
lease shall be construed or interpreted to require or provide for indemnification of Tenant by the
Cowry for any injury to any person or any property damage whatsoever which is calved by the
negligence or other misconduct of the County or its agent or employees.
12. Jiorice. Any wrineo notice required by this ease shall be deemed delivered
through any of the following: (I) hand delivery to the person at the address below; (2)
electronic,internal or facsimik delivery with confirmation of receipt to the e-mail address or
fax number below;or(3)wigdn three(3)days of being sent cm ified fust class mail,postage
prepaid,return receipt requested addressed as follows below. Notice by facsimile,e-mail or
inlemet delivery shall be deemed given upon receipt ofa confirmation by sender and notice by
personal delivery shall be deemed given when received.
a - Pitkin County Open Spare&Trails
Aim:Paul Holsinger
530 E.Main Street,31d Floor
Aspen,Colorado 81611
Fax:(970)920-5198
E-Mail Address:PaoLHolsinget Pitkincoomy.cam
With Conies
s: Pitkin County Attorney's Office
530 E.Mein Sweet,#302
Aspen.Colarda 81611
(970)910-5198
E-Mall:John.Ely eery, ilkinrountv.cam
7m Marlin&Company LW
0796 Little Woody Creek Road
P.0 Box 67Q
Woody Creek Colorado 81656
E-Mail Address:xcanlanpaaok<om
13. Default/Violation of Lease Terme Every clause herein contained is herebymade
a condition of this lease If Tenant fails to comply with any of the malarial provisions of this
lease, or of any present rules and regulation or any that may be hereafter pmseribed by
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Janice K. Vos Caudill, Pitkin County, CO
AGRICULTURAL I AND tease
PAGE Bot 10
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 spccil5ing the noncompliance and
indicating the intention of Landlord to terminate the lease by reason thereof Landlord may
laminate this lease. At the time ordered/orsiolatiom,Landlord may declare all unpaid rent for
the remaining tam of the case 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,advcnising
and any other costs Incurred in preparing the Property for re-renting. Tenet agrees not to inn
to the premises after legal removal.
14. $rrtion Headings. Paragraph or section headings within this(case are inserted
solely for convenience of reference,and are not intended to,and shall not govern,limit ar aid in
the construction of any terms or provisions contained heroin.
MISCELLANEOUS
I. - Landlord names the right for itself. its agents, and employees to enter the
Property et 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 Tend forty-eight(48)hours notice before entering Property.
2. landlord maks no guarantee of the productivity of the P wiry 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 more or use on the Property substances that me hazardous
toxic dangerous or harmful or winch are defined as han,dous 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 tens of this lease.
6. Tenant shall not construct any building or improvement on the Properly without
Landlord's written consent.
7. Tenant shell not dispose of trash garbage rubbish or refuse on the Property.
B. Tenant shall not panni'any commercial activity on the Propeny apart from those
activities described in the agricultural plan.
RECEPTION#: 635793, 01/31/2017 at 10:47:38 AM, 11 OF 11,
Janice K. Vos Caudill, Pitkin County, CO
AGRICULTURAL LAND LEASE
PACT.9OF IC
IN WITNESS WHEREOF,the Landlord and Tanen(have duly executed this lease on the
day and year first above written.
TENANT: LANDLORD:
Hoard of Cnualy Conan II:Honer,of Pitkin
CainMan Com any LLC
Rr n, aiL er :ai l ;CAP—. //1/
4
Patrick Scanlan,Manager
Date Chair Date
91/201/2C/6
APPROVED AS TO FORM:
i' . aunty Attorney
RECEPTION#: 635795, 01/31/2017 at 10:47:90 AM, 1 OF 9, R $0.00
Janice K. Voa Caudill, Pitkin County, CO
P1QNTRACT# 1±.12L-2 /67
� APPROVED BY
ORDINANCE
AGRICU .Tn:RAL LAND LEASE # 0/g- /‘
This lease is entered into this day of ('O L44 .2016 by and bm.een the
Board of County Commissioners of Pitkin County, Colorado. hereinafter "Landlord' or
'Count'',and Martin&Company LLC,0796 Little Woody Creek Road.P.O.Box 670,Woody
Creek.Colorado 81656.hereinafter'Tenant`.
Now therefore.in consideration of the mutual cotenants end promises contained herein.
the pmics agree as follows:
I. 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
intetmption,consistent with accepted agricultural practices and the agriculture production plan
for the property proposed by Tenant and accepted by Landlord.in writing and made pan of this
lease.
2. Leased Prooenv. Landlord in consideration of the terms contained herein lases
to the Tenant. pursuant In the attached Annual Operating Plan, the following described real
properly:Wheatley Open Space irrigated acreage-as represented on the Declaration of Covenants
for the Wheatley Ditch Operations recorded in the lend records of Pitkin County on October 23,
2014.at reception number 614776,together with ell appunenant utter rights.consisting of the
following: 3.0 Cubic Feet per Second of water from the Wheatley Ditch. casements and
improvements C Proper})
3. ase Tom. 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 31.2021 ibis lease shall
not be renewed or extended mein through express written amendment to this lease. Tenant is
expressly prohibited from holding over beyond the expiration of the lease term without repress
written permission of Landlord.
4. Rent. Tenant agrees to pay landlord rent at the rate of SI00.00 for each calendar
year or any portion ofa calendar yew that the Proper'}is primarily used for grass hay production
and$500.00 for each calendar year or any portion of a calendar year that any panion of the
Property is planted in potatoes while this lease is in effect. This amount shall be the annual rent
for the Properly. The annual rent shell be due in full to the Landlord on April I each year or
portion of a year that the case is in effect. Failure to pay rent by this date constitutes a breach of
this lease.
5. Qotion to Purchase Euuimrcnt. Tenant agrees to offer to County at the end of the
leasehold all equipment related to the side roll imigadon system used on the property at a market
Mice.
AGRICULTURAL PROVISIONS
1. oil Tonna. Except as modified by the Annual Operating Plan,it shall be the
responsibility of the Tenam to ten the soil of the Property twice a year. Soil samples shall be
gathered from a representative gonion of the leased property. Soil samples will be gathered
RECEPTION#: 635795, 01/31/2017 at 10:47:40 AM, 2 OF 9,
Janice K. Vos Caudill, Pitkin County, CO
ALRICII.R!RAI.LAND LFAsf
PAoE2or 10
during We month of May and during the month of September. Soil samples mill be tested
through the Colorado State University"extension office or other appropriate entity.
2. Weed Control. Tenant is responsible for the removal of all noxious needs as
defined in the Colorado Noxious Wad Act. Removal of noxious weeds shall be before
individual plants go m seed. The use of any herbicide shall be particularly approved by the
County as pan of the Annual Operating Plan for the Property.
3. fest Control. team may enyzee in control, removal. ora 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. Fcni1'aen The application of any and all fertilizer agents shall be based upon
the results of the soil tests and with the recommendation of Colorado Stale University. The
intim of the application of any fenilixer 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 Pmpeny.
5. livestock. Livestock may be maintained on the Property consistent with the
Animal Operating Plan. Livestock shall be penned or pastured so as not to cause the destruction
of pasture grasses. soil depressions or swalcs, 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 Mxhirm Storax. The storage of vehicles or machinery nm
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 vehicks or agricultural machinery must he collected and
disposed of off the Property consistent with applicable law.
7. Existing Vegetation. Existing hedgerows and brush arras shall not be disturbed
except as specifically allowed in wilting by the County or as incorporated into the Annual
Operating Plan.
8. Eptblemams. Tenant shall be entitled to all embiements if the termination of the
lease is not a result of Tenant's breach and shall gain 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 hanested 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 emblemena.
9. fences. Tenant shall be responsible for maintaining all fences and gates in
working condition ry for the lenses 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.
RECEPTIONS: 635795, 01/31/2017 at 10:47:40 AM, 3 OF 9,
Janice K. Vos Caudill, Pitkin County, CO
Atill3(1-1 rtl0.Al.L'Sn I.LAY.
PAOU sec 10
10. Water Rinhtt Tenant shall utilize all water rights associated with the Property.
Landlord may enter the property to maintain a record of db.ersion or delivery amounts and the
areas of the Property watered. Tenant shell not make any improvements or changes in the
inigation infrastructure without written permission of the Landlord. All irrigation improvements
become the properly of the Landlord al the end of the Ieasc. Tenant shall maintain all ditches.
laterals,tail mos,pipes,splitter boxes, and all other infrastructure associated with the use of
water on the Pnrpoty. Maintenance shall include but not be limited to bunting,cleaning and
dredging ditch courses. clearing pipelines. keeping headgates and diversion structures in
workable order.
IL Erasion. Tenant shall trot engage in any activity which results in the loss of soil
or changes the topography or grade of Me 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 Ocarina Plan. An Annual Operating Plan shall be developed fee the
County by the Open Space and Trails Department.with the Tenants 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 Propeny 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
m be removed or eradicated from the Propeny. The plan shell include the anticipated season
dares for the actual agricultural activity as well as the winter cover for the areas of the Property
an 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. Conservation Casement. Tenant shall comply with the teens of the Dart Ranch-
W'headey Tract I Second Amendment and Pint Restatement of Deed of Conservation Easement
recorded in the land records of Pitkin County on January 7.2015.at reception number 616569.
and attached hereto as Exhibit A.
GENERAL PROVISIONS
I. jpwuance. Tenant shall procure and maintain for the temp 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 Prapeny.
The insurance requirements herein re minimum requirements for this lease and in no way
limit the indemnity cements contained in this lease. Tenant's insurance shall be Primary and
noncontributory with any insurance or self-insun race purchased by the Landlord. The
insurance companies issuing the policy of policies hereunder shall have no
against the County of Pitkin for payment of any Premiums or for asse.¢menn under any form
RECEPTION#: 635795, 01/31/2017 at 10:47:40 AM, 4 OF 9,
Janice K. Vos Caudill, Pitkin County, CO
AtiRICUL ICRAL LAND1.1'6F
PACE 40F l0
of policy. Any and all deduttibles or self-insured mentions in the above-described insurance
policies shall be assumed by and be for the amount oC and at the sole expense of the Tenant.
Tenant shall assess its own risks and if it deems appropriate and/or pendant.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 I imits 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 minima°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 nailer of subrogation against the County.
b This requirement shall not apply when Tenant, contractor or
employee is exempt under Colorado Workers'Compensation Ac'.AND
then such contractor or subcontractor executes the appmpriate sole
proprietor waiver form.
Minimum Limits:
Coverage A(Worker s Compensation) S Statutory
Coverage B(Employers Liability) S 500.000
2. Commode!General t iahilip-ISO ICG 0001 form or equine:in
M'4h County named ocMtswl in nvMj
Minimum Limits:
General Aggregate S 500.000
Pend-RCompletd Operations Aggregate $ 500.000
Each Occurrence Limit S 509000
PersonallAdvenising Injury S 500.000
Firs Damage(Any One Fire) Replacement Value of
any Structures
Medical Payments(My One Person) S 5.tyd0
Coverage to include:
• Premises and Operations
• Personal/Advertising Injury
• Products/Completed Operations
• Liability assumed tmdcr an Insured Conwact (including defense cats
RECEPTION#: 635795, 01/31/2017 at 10:47:40 AM, 5 OF 9,
Janice K. Vos Caudill, Pitkin County, CO
AORICCLIlRA LAx01l,00,
PAO/50/ 10
assumed under contraC i l
• Independent Contractors
• Additional Insured—Owners, Lessees or Contractors Endorsement.
ISO Form 2010(2004 Edition nr equivalent)
• Additional Insured—Owners.lessees or Contractors Endorsement.
ISO CO 2037(2004 Edition or equivalent)
• The policy shall be endorsed to include the following additional insured
language on Ne Additional Insured Endorsements specified above
"County, in subsidies.. parent. associated and/or affiliated entities,
successors. or assigns, its elected otlicials trustees, employees,
agents, and volunteers named as an additional inured with respect to
liability and defense of suits arising out of the activities performed by,or
on behalf ofthe 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 thiry(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, 3'4
Floor.Aspen,Colorado,81611. If the insurance easier will not provide the
required notice,the Consultant/Contractor and or its insurance broker shall
notlty•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. Isullund rescues the right to request and receive a copy of any
policy and any policy endorsement at any lime during the tam of this lease.
2. Indemnity.
A. Tenant agrees to irdemnif hold harmless ani not excluding the County's tight to
participate.defend the County, its subsidiary,parent,associated ander affiliated
entities successors,or assigns. its elected ofciah, to lees. employees, agents
volunteers and any jurisdiction or agency issuing permits Ibe any wort included in
the performance of this lease.hereinafter mimed to as ivdon:Pee. from all suits
and claims.including attorney's lees and cost of litigation.actions,loss damage.
expense cost or claims of any character or arty nature arising out of the work dune
in fulfillment of the terms of this lease or on account of any act,claim or amount
arising or recovered under workers compensation Iax or arising out of dee failure
of Tenant to conform to any natures,ordinances,reguymiut.in or WWI decree. It
is agreed that Tenant will he responsible for primary loss investigation.defense
end judgment costs where this contnet of indemnity applies. Pitkin County end
its elected Board shall be named as an additional insured with respect to
RECEPTION#: 635795, 01/31/2017 at 10:47:40 AM, 6 OF 9,
Janice K. Vos Caudill, Pitkin County, CO
An01CItNAAl.I ASCII EASE
POOL 61W 10
any liability arising out of the activities performed by.or on bcha1f of the
'tenants on the Leased Property.
B. Tenant funhcr shall investigate.process.tcspa d to.adjust,provide defense
for and defend,pay or scale all claims demands.or lawsuits related hereto at its
sole expense and shall bear all other casts and eaisenses related thereto.even if the
claim,demand or lawsuit is gmundlese,false or fraudulent.
3. Assignability. Tenant agrees not to assign or sublease any part of the Propeny
without the written consent of the landlord
4. Rindirsa Arbitration. Any disputes arising out of this(case shall be subject to
binding arbitration. The ponies agree that any disputes concerning the terms and conditions
of this lease shall be submitted and finally settled by arbitration. Arbitration shall be
conducted purrattt 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. Sevmbilih. 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. Jar eeration and Modification. This lease represents the entire and integrated
lease between the County and Tenant and supersedes all prior negotiations,representations
or contract.either wrinen 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,end documents concerning its perfomtance 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. I:asc Made in Colorado. The panics agree that this lease was made in
accordance with the laws of the State of Colurado and shall be so construed. Venue is agreed
to be exclusively in the couns of Pitkin County.Colorado.
9. Moines'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
;revelling party. whether by venal judgment or out of cowl settlement. shall revoser from the
ether pang all costs and expenses of such action or suit including reasonable attorney's fees.
RECEPTION#: 635795, 01/31/2017 at 10:47:40 AM, 7 OF 9,
Janice K. Vos Caudill, Pitkin County, CO
A4nIC0.1 LPAI.I AND I I:ASI.
PACS 7tµ10
10. Waiver. Failure of the County to exorcise 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 el any fulure time.
I I. Govemmented 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 of any other rights.immunities.and protections 1rovided 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 Taunt by the
County tar any injury to any person or any pmperty damage whatsoever which is caused by the
negligence or other miscond i of Ne County or its agent or employees.
12. Notice. Any written notice required b) this lease shall be deemed delivered
through any of the following: (3) hand delivery to the person al the address below: (2}
electronic,interact or facsimile delivery with confirmation of receipt to the e-mail address or
fax number below:or(31 within three(3)days of being sem cenilted fust class mail,pant
prepaid,resum receipt requested addressed as follows below. Notice by favaimile.e-mail or
intoner deli t y shall bo deemed given upon receipt of a confirmation by sender and notice by
personal delivery shall be deemed given when received.
Ts: Pitkin County Open Space&Trails
Ann:Paul Holsinger
530 E.Main Street.yd Floor
Aspen,Colorado 81611
Fax:(970)920-5198
E-Mall Address:PauLHu6inger rr'Pitkincoumy.com
With Copies
To: Pitkin County Attome\'s Office
530 E.Main Street.4302
Aspen.Colorado/1161
Fax:(970)920.5198
ISM1teil:John.P.l.it piskincnum'Ci
Manin&Company LLC
0796 Little Woody Creek Road
P.O.Box 670
Woody Creek Colorado 81656
13. tat' b i I ' of Lent Turns. Every clause herein contained is hereby made
a condition of this lease. If Tenant foils to comply with any of the material provisions of this
(case, or of any present rules and regulations or arty that ma; he hereafter prescribed by
RECEPTIONR: 635795, 01/31/2017 at 10:47:40 AM, 8 OF 9,
Janice K. Vos Caudill, Pitkin County, CO
utaortsrazi I..nr rum..
Pang ga ID
Landlord,or materially foils to comply with any duties impysad on Tenant by salute within
seven(1)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. Atte time of default or violation,landlord may declare all unpaid raft for
the remaining term of the lease to be immediately due and pa)ahle within thirty(30)days notice
to Tenant. Tenant shall be responsible to Landlord far the cost of repairs,legal fees,advertising
and any other costs incurred in preparing the Property for re-renting. Tenant agrees nut to return
to the premises after legal removed.
14. Section Ile dincs. Paragraph or section headings within this last arc inscned
solely for convenience of reference.and ere nor intended to.end shall not govern.limit or aid in
the construction of any!emu or pnwisions contained herein.
•
MISCELLANEOUS
I. Landlord resents the right for it elf. 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 fony-eight(4E)hours notice before entering Propeny.
2. Landlord makes no guarantor of the productivity of the Property and assumes no
liability of any condition. visible or not. which may affect agricultural produdi sty of the
Property.Tenant agrees to accept the Property in en as is condition.
3. Tenant shall perform all routine maintenance on the improvements on the
Pmpery.Tenant shall repair any damage to the improvements on the Property that arc the result
of acts of third parties.
a. Tenons 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
Properly during the term of this lease.
6. 'tenant shall not construct any building or improvement on the Propeny without
Landlord's Steen consent.
7. Tenant shall not dispose of trash garbage rubbish or refuse on the Property.
S. 'tenant shall nen permit any commercial activity on the Propeny span from those
activities described in the agricultural plan.
RECEPTION#: 635795, 01/31/2017 at 10:47:40 AM, 9 OF 9,
Janice K. Vos Caudill, Pitkin County, CO
Mm1E1.1I MALIA\t)kAAI
VAGE9OF 10
IN WITNESS WHEREOF.the Landlord and Tenant have duly executed thio lease on the
day and year first above orlacn.
TENANT: LANDLORD:
Board of Count Commissioners of Pitkin
Coo•^ /
Marti?Company LLC
Ba:).'/ ��'� By / I .400km-, /
Patrick Scanlan,Manager
Dale Chair Date
9(20/20/%
APPROVED AS TO FORM;
•
do
afio ounty Attor e