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HomeMy WebLinkAboutbocc.con.233.2018 - BOCC CONTRACT11111IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII RECEPTION# 649381, R: 80 00, SO 00 DOC CODE ORDINANCE # 33 Pg 1 of 11,08/07/2018 at 01'27:24 PM Janice K Vos Caudill, Pitkin County, CO L /}1k Ac k,e,i� AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY,COLORADO,AUTHORIZING AN OUTFITTER AND AGRICULTURAL LEASE OF THE COKE OVENS OPEN SPACE BETWEEN THE BOARD OF COUNTY COMMISSIONERS AND AVALANCHE OUTFITTERS, LI.0 ORDINANCE NO. 06' 7/ -2018 RECITALS: I Pursuant to 30-35-301 C R.S., the Board of County Commissioners of Pitkin County, 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("IIRC'). 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 ("0518")to guide the expenditure of those funds. 4 The Open Space and Trails Program ("OST") is charged with protecting agriculture, open space.habitat, scenic view planes,water rights and river access. 5 An Agricultural Lease Bid Process was adopted by the OSTB on October 7 2014 to implement the County's Procurement Code and guide OST staff in selecting appropriate tenants to manage and lease OST agricultural properties 6. The Coke Ovens Open Space is comprised of 35 acres located in Redstone,Colorado in the Crystal River Valley and acquired by Pitkin County April 16, 2016 The Property was acquired to preset"e 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 OST staff identified approximately 24 irrigated acres to be made available for leasing by an agricultural producer as an interim management action until a management plan can be created. 9 On July 13,2016, the BOCC approved Avalanche Outfitters, LLC, for an Outfitter and Agricultural Lease of Coke Ovens Open Space/ to expire December 31, 2017 MCI A�D -2018 10. The Coke Ovens Open Space management plan is scheduled to be completed and adopted in 2019 11. On December 12,2017,the OSTB recommended Avalanche Outfitters, LLC, receive an extension of their lease until December 31, 2019, when the management plan is anticipated to be completed. 12. 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 Outfitter and agricultural lease of the Coke Chen Open Space 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 0i/ D -2018 INTRODUCED AND FIRST READ ON THE 10TH DAY OF JANUARY, 3018 AND SET FOR SECOND READING AND PUBLIC HEARING ON THE 24i° DAY OF JANUARY 2018. NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE R SOLUTION PUBLISHED IN THE ASPEN TIMES WEEKLY ON TILE ill' DAY OF GLkvG"1 ,2018 NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE RESOLUTION POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE (www pitkmcounty.com 1 ON THE (( DAY OF c`rH 2018 ticADO TED AFFTERFINAL READING AND PUBLIC HEARING ON THE�Y DAY µ OF 2018. PUBLISHED BY TITLE AND SHORT SUMM RY, AFTER ADOPTION, IN THE ASPEN TIMES WEEKLY ON THE 1,4 DAY OF tLC<w . 2018. POSTED BY TITLE AND SHORT SUMMARY ON THE OFFIC AL PITKIN COUNTY WEBSITE I WWW pitkincounty coin) ON THE J-`5 DAY OF - ___ac._r 201 g AT. BOARD OF COUNTY COMMISSIONERS By \ I ! ! � .. .(I - By: 1 Jean- to Jones Patti Clapper, Chair Dep y County Clerk Date: 01—€.9 In ,;p($ APPROVED AS TO-FOR/ohm MANAGER APPROVAL John Ely, Count ttomey on Pe •se . County Manager OP N SPACE & TRAILS Gary Tenenbaum, Director /,�/ Ordinance ON 0 2018 OUTFITTER ANDAGRICULTURALLAND LEASE �aD this lease is entered into this day of 1)1 li-t-Ceti- 2018 by and between the Board of County Commissioner,of Pitkin County.Colorado,hereinafter"Landlord"or "County", and Avalanche Outfitters, LLC. 82 Redstone Blvd, Redstone. Colorado 81623. hereinafter .Tenant". Now therefore, in consideration of the mutual covenants and promises contained herein, the parties agree as follows, I Purpose and Intent. Landlord and Tenant intend that the property, all appurtenances, water rights. easements and unproxements he used for active agncultural 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 rhe properly proposed by Tenant and accepted by Landlord, in writing, and made part of this lease 2. Leased Property. Landlord in consideration of the tei ms contained herein leases to the Tenant, pursuant to the attached Annual Operatlog Plan, the following described real property Coke t hens Open Space, together with all appurtenant water right., consisting of the following- 1,3 cubic feet per second of w ater in the Beaman Ditch,easements and improvements("Property' 3 Lease Term Unless earlier terminated by operation of this lease, the lease term shall he in el feet as of the date the lease is entered abos e,to December 31, 2014. This lease shall not be renewed or extended except through express wi hien amendment to this lease Tenant is expressly prohibited from holding of Cr beyond the expiration of the lease tern without express wt Men permission of Landlord. Rent, Tenant agrees to pay Landlord rent at the rate of S13.600.00 for each calendar year or any portion of a calendar year that this lease is in effect This amount shall be the annual rent for the Property. The annual rent shall be due :c full to the Landlord on April I each }ear 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 '1esung 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 w ill he gathered during the month of May and dm ung the month of Septemb:r Sod samples will be tested through the Colorado State Um %ersity extension office _, Weed Contioi. 'tenant is responsible for the removal of all noxious weeds as defined in the Colorado Noxious Weed Act Removal of noxious w eeds shall be before individual 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 m 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. DI 71- TiI1 R AIN()AGRIL I Wit'RAL L AND Li ANF ?ADE 2 ui 8 F=niioers. 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 lJniversuy 'the Intent of the application of any terasiter will be to remore or improve soil conditions. The type of fertilizer to be used as well as its application schedule and application method shall be contained w Olin the Annua:t)perating Plan for the Property. 5 Livestock Livestock may he 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%wales,or in Any way that would negatively affect irrigation practices Watering of livestock shall he conducted in approved areas consistent w rth the Annual Operating Plan 6. Vehicle and Machinery Storage. The storage of vehicles or maehmer) not acutely used as part of the agiict:ltural operation is prohibited The matntenan;c of%chicks and machtner} used in agricultural operations may he conducted only in designated areas Any spill or loss of any fluid associated with t chides or agricultural machinery must he collected and disposed of off the Property consistent with applicable law 7. [Tustin. Vegetation Existing hedgerows and brush areas shall not he disturbed except as specifically allowed in writing by the County or as incorporated into the Annual Operating Plan R. Emblemenh. Tenant shall he entnted to as embtements if the termination of the lease is not a result of Tenant's breach, If the lease is terminated or canceled as a result of Tenant's breach or at the election of the Conn:). all agricultural products may be harvested or other t ase gathered and sold with the proceeds going to the Landlord to cot er its costs and the remainder shared between the 'tenant and the Landlord based upon the percentage of time the crop was in their respective control. Whether or not to harvest or gather any crop or In estock at the end of a lease is within the discretion of the i and!ord The Landlord w ill not possess a security inters,' in mar emblentents 9 Fences Tenant shall be responsible for maintaining all fences and gates in working condition as necessary fur the Tenant's proposed use,normal wear and tear excepted Removal of fencing is permitted with Landlord's approval and must he reinstalled upon termination of this lease if I enant doe, not obtain a concurrent lease on the Property ID Water Rights Tenant shall utilize all tt liter rights associated wdh the Property. landlord may enter the property to maintain a record of da crsion or dein cry amount+ and the areas of the Property watered Tenant shall not make any improvements or changes in the ungation infrastructure without written permission of the Landlord. All inrgatlon improvements become the pi petty of the Landlord at the end of the lease Tenant shall maintain all ditches, laterals, tail runs.pipes.splitter boxes.and all other mfrastnlctute associated w nh the use of water on the Properly Maintenance shall include but not be limited to burning. cleaning and dredging ditch courses, clearing pipelines, keeping headgates and diversion structures in workable order. I I Erosion Tenant shall not engage in an) activity which results in the loss of soil or changes the topography or _rade of the Property. Al', soil disking and tilling must be approved in t it ITEET I Ek AND AIERItI I MEAL LAND I E ASE PAUL 3 01 the Annual Operating Plan. Irrigation activity must he 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 fin the County by the Open Space and Trails Department,with the 7 enant's input. within two months of the Tenant entering into this lease and will he review ed and amended,if necessary,at least annually (the"Annual Operating Plan")and incorporated into this lease Landlord tray 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 w ill be used for specific agricultural activities the plan Will propose the anticipated water use and whether any changes are needed to the existing Irrigation intrastrucnne. 'I he plan shall address any herbicide or pesticide applications to he used on the Property and whether of not there are pests or predators to he removed or eradicated from the Property. The plan shall include the anticipated season dares for the actual agricnittn al activity as well as the winter cover fin the areas of the Property on which agricultural activities were conducted The plan shall include the types. method of application and timing fin the application at any fcrtilirer to be used Amendments to the plan may he executed by the Open Space and Trails Department GENERAL PROVISIONS Insurance Tenant shall procure and maintain for the term of the lease, insui truce against claims tin injury to persons or damage to Property which may arise from 01 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, Tenants insurance shall be primary and non- contributory with any insurance or self-insurance purchased by the Landlord. The insurance companies issuing the poke} or policies hereunder shall have no recourse against the County of Pitkin fon payment of any piemiums or for assessments under any form of policy. Any and all deductibles of self-insured retentions in the abosedescnbed insurance policies shall he assumed by and he for the amount of and at the sole expense of the Tenant Tenant shall assess its own risks and if it deems appropriate and or prudent, maintain higher his:us and or broader coverages, Tenant Is no: relict ed of an} liability or other oh iganons assumed or pursuant to the lease by reason of its hulure to obtain or maintain Insurance In SU flineni amounts.d::rata n.or types A. Cmerne and Limns of Insurance: Tenant shall pi os ide :overae soh Iinuts of h ability not less than those stated below An umbrella and/or excess habilit> policy may he used to meet the minimum liability requirements provided that the coverage is written on a "following form"basis Statutory Workers' Compensation' Colorado statutor} minimums a Policy shall contain a waiver of subrogation against the County OI'TFII I LR AND AGRU'IJLTI'R.\L 1 AND It ASE MOL 4 Ot $ h This requirement s::all not apply ss hen Tenant. contract(); or employee is exempt under Colorado Workers' Compensation Act . AND when. such contractor or subcontractor executes the appropriate sole proprietor waiver form Minimum L tans Coverage A(Workers. Compensation) $ Statutory Cos crape B{Employers Liability) $ 5(g1,n00 2. C'onuneren.d Geuendl Llabibtc ISO t('G 0001 :ono or emus alcor (IR11 C'uuntt themed additional tn.tmcdl Minimum Lrmitr General Aggregate S 500,000 Products Completed Operations Aggregate $ 500,000 Each Occurrence I nut S 500,000 Personal/Ad,ertrsing Injury S 500,000 Fre Damage(Any One I tel Replaeenem Value of any Structures Medical Payments(Any One Person) S 5,000 ( od ewge to include • Premises and Operations • Personal /Ads ertismt: Injury • Products /Completed Operations • Liability assumed under on Insured Contract I including defense costs assumed under s ontracrl • Independeot Contractors • Additional Insured- Owners, Lessees or C'ontraetua Endorsement, ISO Form 20)0{2004 Edition or equivalent) • Additional Insured-4 twners, Lessees or Contractors Endorsement, ISO CC 2037 (2004 Edition or equivalent) • The pope , shall be endorsed to include the following additional insured language on the Additional Insured Endorsements specified above- "County, huve"County, its subsidiary, patent, associated and'or affiliated entities. successors, or assigns, its elected officials, trustees. employees. agents. and s olunteers named as an additional insured with respect to liability and defense of sults arising out of the acus dies perfi'.1 lied by, or on behalf of the Contractor. including completed operations B Proof of Insurance- . nsurance. Each insurance policy required by the insurance provisions of this lease shall prod ide die required coverage and shall not be suspended, voided or CItI FFITTE N AND AGF IC(T1 TUICAL LAM1D Lt ASE PALL 5 bib canceled except after thirty(30)days prior write.n notice has been given to the County, except when cancellation is for nun-payment of ptemium, then ten {I days prior notice may be given.Such notice shall be sen:directly to Pitkin County Open Space and Trails Department, 530 E. Main Street 3' Floor, Aspen.Colorado.R1 fit I. If the insurance earner\\dl not provide the required notiLe, the Consultant Contractor and of its insurance broker shall notify the County of any cancellation.of reductio;in CON erage or limits of any insurance thin seven (7)days of receipt of insurers' notification to that effect Landlord reserves the right to request and receive a copy of any policy and any policy endorssnent 41 any time&tunny the tern of this lease. Indemnity, A renal:: agrees to indemnify, hold harmless and, no: exclading the County's right to participate. defend the County, its subsidiary, parent, associated and'ot affiliated enn:tee, sic essoi,s, or ass ms its elected officials, trustees, employees. agents, olunteers, and any jurisdiction or agency issuing permits for any work Included in the performance of this lease.hereinafter referred to as indemn ee. from all suits and claims,including attorney's fees and cost of litigation,actions.loss,damage,expense, cost or claims of any chary ter or any nature arising out of the wo:k done in fulfillment of the tern of this lease or on account of any act, claim or amount arising or recovered under worker=compensation law or arising out of the ,adore of Tenant to conform to any statutes, ordinances, regulation, law or court decree It is agreed that Tenant will be responsible for primas' loss investigation.defense and judgment costs where this contra t of indemnity applies Pitkin County and us elected Board shall be named as an additional insured with respect to and habil; arising out of the ac ti\i ties performed by. or on behalf of the Tenants on the Leased Property B Tenant further shall investigate,process, respond to, adjust. pro\ide defense for and defend,pay or settle all claims, demands, i a lawsuits related hereto at its sole expense and shall hear all other costs and expenses related thereto,even if the claim. demand or lawsuit is groundless, false or fiaudulent ?. Assignability. Tenant agrees not to assign or sublease any pan of the Property without the written consent of the Landlord }, Seyerabbrty. In the ex ent that any provision of this lease shall he held to be nn\and or unenforceable,the remaining provisions of this tease shall remain valid and binding upon the parties hereto 5. Integration and Modification This lease represents the entire and integrated lease hem ecu the County and 1 enanl and supersedes all prior negotiations,representations. or OF!HI ILR AND AGRICULTURAL AND I EASE PALL 6 OF S 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 comprehensis e, complete and accurate books, records.and documents concerning its performance relating to this lease for a period of three 13) 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 hooks, 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 w ith all pros isms of the lease and applicable law 7 Lease Made in Colorado. The parties agree that this lease u as made in accordance with the laws of the State of Colorado and shall be so construed Venue is agreed to be exclusn ely in the courts of Pitkin County, Colorado S Attorney's Fees In the es cut that legal action is necessary to enforce any of the pros Mons of this lease, the substantially prevailing party,whether by final judgment or out of court settlement shall recon Cr fi om 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 has e the effect of u awing or 'uniting the exercise of the County, or of any other right or remedy or the indication of such right or remedy at any future time. In. Go emmental Immunity Tenant agrees and understands that Pitkin County is relying on and does not waive. by any pros neon of this lease. the monetary limitations of terms or any other rights, mummifies, and protections provided by the Colorado Go)emmental Immunity Act, 5 24-10-101.et seq ,C.R S ,as from time to time amended,or otherwise as ailable 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 whatsoes er which is caused by the negligence or other misconduct of the County or its agent or employees 11 Notice Any notice required or permitted under this Agreement shall be in a riling and shall he provided by electronic deli)ery to the e-mall addresses set forth below and by one of the follow Ing methods 1)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 delis ery of notices shall be considered delivered upon receipt of confirmation of delivery on the part of the sender. Nothing contained herein shall he construed to preclude personal sen ice of any notice in the manner prescribed for personal sen ice of a summons or other legal process To Pitkin County Open Space& Trails Attn Paul Holsinger 806 West Hallam Street Aspen. Colorado 81611 OUTFITTER AND AGRICULTURAL LAND LEASE PAm,L 7 or S Fax (970)920-5198 E-Mail Address. Paul.Holsingerftopitkincounty corn Vy'rth Copses To Pitkin County Attorney's Office 123 Emma Road, #204 Basalt, CO 81621 Fax: (970) 920-5198 E-Marl: Attomey(i pitkincountc corn To. Ahalanche Outfitters. LLC Bolling Jones, President Nicole Jones. Vice-President 82 Redstone Blvd Redstone, Colorado 81623 Phone (229) 221-4590 E-Mail ay alancheoutfitters!ti!mall corn 12 Default/Violation of Lease Terms, Every clause herein contained is hereby made a condition of this lease IfTenant 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 w ith any duties imposed on Tenant by statute within seven(7)days after delivery of written notice by Landlord specifying the non-compliance and indicating the intention of Landlord to terminate the lease by reason thereof, Landlord may terminate this lease At the time of default or violation. Landlord may declare all unpaid rent for the remaining term of the lease to be immediately due and payable within thirty(30) days notice to Tenant Tenant shall be responsible to Landlord for the cost of repairs. legal fees. ads ertising and any other costs Incurred in preparing the Property for re-renting Tenant agrees not to return to the premises after legal removal 13. Section Headlines Paragraph or section headings within this lease are inserted solely for convenience of reference, and are nut intended to, and shall not gas ern, unit or and in the construction of any terms or provisions contained herein MICELLANEOUS Landlord resen es the right for itself, its agents,and employees to enter the Property at any reasonable tune 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 OUTFITI ER AND AGRICULTURAL L AND I rASP PAGE'8 OF R 3 Tenant shall perform all routine maintenance on the improv ements 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 dunng the term of this lease. 6. Tenant shall not construct any building or improvement on the Property without Landlord's written consent. 7 Tenant shall not dispose of trash garbage rubbish or refuse on the Property. 8 Tenant shall not permit any commercial act])ity on the Property apart from those activities described in the agricultural plan. 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 Rv:/ 5/& By: 7Lecc( < °''/1,; - LI/)L , Date Chair Date APPROVED AS TO FORM: John M. Ely Pitkin County Attorney CONTRACT }33 :)0/ 8 OUTFITTER AND AGRICULTURAL LAND LEASE This lease is entered into this/'day of P1 , 2018 by and between the Board of County Commissioners of Pitkin County.Colorado,hereinafter"Landlord"or"County", and Avalanche Outfitters, LLC, 82 Redstone Blvd, Redstone, Colorado 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. Coke Ovens Open Space, together with all appurtenant water rights, consisting of the following. 1.3 cubic feet per second of water in the Beaman 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, 2019. This lease shall not be renewed or extended except through express written amendment to this lease. Tenant is expressly prohibited from holding over beyond the expiration of the lease term without express written permission of Landlord. 4, Rent Tenant agrees to pay Landlord rent at the rate of$3,600,00 for each calendar year or any portion of a calendar year that this lease is in effect This amount shall be the annual rent for the Property The annual rent shall be due in full to the Landlord on April I 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 I. Sod 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 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 I1111111111111111IIIIIIIIIIIIIll11111111111111111111liIIIIIIIIIIIIIIIIIIIII RECEPTION#:649382, R: $0.00, D- $0.00 DOC CODE: LEASE lof 8, 0870at 0PM JaPgmee K.Vos10Caudill,1218 Pitkin Coun1:27:25ty,CO ULE t FIT I ER.AND AGRU:OUI IRAL LAND r EASE PAGE 2 U4R 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. 1 he type of fertilize; 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 he maintained on the Property consistent with the Annual Operating Plan I ivestock 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 nut actively used as part of the agricultural operation is prohibited. The maintenance of vehicles and machinery used in agricultural operations may he 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. ExistingVegetation. 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 he entitled to all emblements if the termination of the lease is not a result of Tenant's breach. If the lease is terminated or canceled as a result of Tenant's breach or at the election of the County, all agricultural products may be harvested or otherwise gathered and sold with the proceeds going to the Landlord to cover its costs and the remainder shared between the Tenant and the Landlord based upon the percentage of time the crop was in their respective control Whether or not to harvest or gather any crop or livestock at the end of a tease is within the discretion of the Landlord. The Landlord will not possess a security interest in any emblements 9 Fences. tenni shall be responsible for maintaining all fences and gates in working condition as necessary for the Tenant's proposed use, normal wear and tear excepted. Removal of fencing is permitted with Landlord's approval and must be reinstalled upon termination of this lease Tenant does not obtain a concurrent lease on the Property 10 Water Rights Tenant shall utilize all water rights associated with the Property. Landlord may enter the property to maintain a record of diversion or delivery amounts and the areas of the Property watered. Tenant shill not make any improvements or changes in the imeation infrastructure without written permission of the Landlord. All irrigation improvements become the piuperty of the Landlord at the end of the lease, Tenant shall maintain all ditches, laterals,tail runs,pipes, splitter boxes,and alt 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 sod or changes the topography or grade of the Property. All soil disking and tilling must be approved in OUTFITTER AND AGRICULTURAL LAND LEASE PAGE 3 OF 8 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 plane ill 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 he 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 he executed by the Open Space and Trails Department GENERAL PROVISIONS I. Insurance Tenant shall procure and maintain for the term of the lease, insurance against claims for injury to persons or damage to Property which may arise 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 pnmary and non- contributory with any insurance or self-insurance purchased by the Landlord. The insurance companies issuing the policy or policies hereunder shall have no recourse against the County of Pitkin for payment of any premiums or for assessments under any form of policy Any and all deductibles or self-insured retentions in the above-described insurance policies shall be assumed by and be for the amount of, and at the sole expense of the Tenant. Tenant shall assess its own risks and if it deems appropriate and/or prudent, maintain higher limits andlor 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 OUTFITTER AND AGRICULTURAL LAND LEASE PAGE 4 OF 8 b This requirement shall not apply when Tenant, contractor or employee is exempt under Colorado Workers' Compensation Act , AND when such contractor or subcontractor executes the appropriate sole proprietor waiver form Minimum Limits: Coverage A(Workers' Compensation) $ Statutory Coverage B(Employers Liability) $ 500,000 2. Commercial General Liability—ISO ICG 0001 form or equivalent (With Countt named additional insured) Minimum Limits General Aggregate $ 500,000 Products/Completed Operations Aggregate $ 500,000 Each Occurrence Limit $ 500,000 Personal/Advertising Injury $ 500,000 Fire Damage(Any One Fire) Replacement Value of any Structures Medical Payments(Any One Person) $ 5,000 Coverage to include • Premises and Operations • Personal / Advertising Injury • Products /Completed Operations • Liability assumed under an Insured Contract (including defense costs assumed under contract) • Independent Contractors • Additional InsuredOwners, 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. Each insurance policy required by the insurance provisions of this lease shall provide the required coverage and shall not be suspended, voided or Ut'1 Fll't FR AND AGR ULTU RAL LAND!EASE PAGE 5 fop 8 canceled except after thirty efts 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 Pakin County Open Space and Trails Department, 530 E. Main Street, 3'd Floor, Aspen,Colorado,81611. If the insurance carrier will not provide the required notice, the ConsultanUContractor and m its insurance broker shall notify the County at 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 renant will be responsible for pnmary loss investigation, defense and judgment costs where this contract of indemnity applies. Pitkin County and its elected Board shall be named as an additional insured with respect to any liability arising out of the activities performed by, or on behalf of the Tenants on the Leased Property. B Tenant further shall investigate-process, respond to, adjust, provide defense for and defend,pay or settle all claims,demands,or lawsuits related hereto at its sole expense and shall bear all other costs and expenses related thereto,even if the claim, demand or lawsuit is groundless. false or fraudulent. 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 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 Ui'Till]f'R AND AGRATLT!'RAL LAND LLASE PAGE 6 OF 3 contract, either written or oral. This lease may he amended only by wrinen contract signed by both the County and Tenant. fi Recerds 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 puniose 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 Stare 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 attorneys fees. y. 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. 5 24-I 0-101,a seq..CR S.,as from time to time amended.or othenvise available to Pitkin County or any of its officers, agents or employees. Furthei,nothing in this lease shall be constmed or interpreted to require or provide foi 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. I I Notice Any notice required or permitted under this Agreement shall be in writing and shall he provided by electronic delivery to the e-mail addresses set forth below and by one of the following methods 1 j 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 Flectronic 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 sen'iee of a summons or other legal process. To: Pitkin Counts Open Space& Trails Attn: Paul Holsinger 806 West Hallam Street Aspen, Colorado 81011 UC:PITILR AND AGRICULTURAL t AND Lt ASE PALL 7 Ut 8 Fan: (97W 920-5198 E-Mail Address: Paul.Holsmger(pitkmcounty.com With Copies To- Pitkin County Attorney's Office 123 Emma Road, #204 Basalt, CO 81621 Fax (970) 920-5198 E-SSail: Attomeyia ptkincounty.con To: Avalanche Outfitters, LLC Bolling Jones, President Nicole Jones, Vice-President 82 Redstone Blvd. Redstone,Colorado 81623 Phone. (2291 221-4590 E-Mai : avalancheoutfitterswwgmail.com 12 DefaulUVwlat_on of Lease Terms. Every clause herein contained is hereby made a condition of this lease If Tenant fails to comply with any of the material provisions of this lease, or of any present rules and regulations or any that may be hereafter prescribed by Landlord, or materially fails to comply with any duties Imposed on Tenant by statute within seven(7)days after delivery of written notice by Landlord specifying the non-compliance and indicating the intention of Landlord to terminate the lease by reason thereof, Landlord may terminate this lease At the time of default or violation, Landlord may declare all unpaid rent for the remaining term of the lease to be immediately due and payable within thirty(30)days notice to Tenant. Tenant shall be responsible to Landlord for the cost of repairs.legal fees, advertising and any other costs incurred in preparing the Property for re-renting Tenant agrees not to return to the premises after legal removal 13. Section Headings. Paragraph or section headings within this lease are inserted solely for convenience of reference, and ate not intended to, and shall not govern, limit or and in the construction of any terms or provisions contained herein. MICELLANEOUS 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 lbrtv-eight 448)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 OUTFITTER AND AGRICULTURAL LAND LEASF PAGE R OFR 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 motdgage or cause any lien to be recorded against the Property during the term of this lease. 6. Tenant shall not construct any building or improvement on the Property without Landlord's written consent. 7. Tenant shall not dispose of trash garbage rubbish or refuse on the Property. 8. Tenant shall not permit any commercial activity on the Property apart from those activities described in the agricultural plan. 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 2 /''�/ ate., By: G/ ./15/8 By. ( l.0-+Llc/ tai f..2v/z' Date Chair Date APPROVED AS TO FORM: John M. Ely kin Cou norney