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Home My WebLink AboutC08-284 WECMRD Lease Agreement for Fieldhouse SiteLEASE AGREEMENT FOR FIELDHOUSE SITE THIS LEASE AGREEMENT FOR FIELDHOUSE SITE (hereinafter referred to as the "Agreement") is made and entered into this ~ day of Oc~~~e~ 2008 by and between Eagle County, Colorado, a body politic and corporate, acting by and through its Board of Commissioners (hereinafter referred to as the "County") and the Western Eagle County Metropolitan Recreation District, aquasi-municipal corporation and political subdivision of the State of Colorado (hereinafter referred to as the "District"). RECITALS WHEREAS, the County owns property located in Edwards, Colorado commonly known as the Berry Creek/Miller Ranch Site (the "Property"); and WHEREAS, the County previously entered into a lease agreement with the District in which the District leased a portion of the Property for the purposes of securing a site for recreational activities for the District's residents and taxpayers; and WHEREAS, on May 3, 2005, the County and the District entered into a lease agreement which further defined the areas leased by the District at the Property and set forth the operations and maintenance responsibilities of each of the parties, and WHEREAS, the District, at its sole expense, subsequently constructed two softball fields, three soccer fields and related amenities such as spectator seating, safety fencing, and parking areas designed to accommodate approximately 50 passenger vehicles per playing field on the Property; and WHEREAS, the District now desires to enter into this Agreement with the County in which the District will lease an additional portion of the Property, consisting of approximately 2.04 acres more or less (see Exhibit "A" hereto, a legal description of such additional portion, and Exhibit "B" hereto, a map of such additional portion) (the "Fieldhouse Site"), for purposes of securing a site on which the District plans to construct a fieldhouse, parking lot, and related site improvements (the "Fieldhouse"); and WHEREAS, the District plans to construct the Fieldhouse in order to provide its taxpayers and residents which a site for indoor recreational activities; and WHEREAS, the District is willing to pay all costs associated with the design and construction of the Fieldhouse; and WHEREAS, the County desires to cooperate with the District and lease the Fieldhouse Site to the District on a long-term basis; COVENANTS NOW, THEREFORE, in consideration of the recitals stated above and the mutual covenants and promises of the parties hereto, the receipt and sufficiency of which is acknowledged, the County and the District agree as follows: SECTION ONE CONSTRUCTION OF THE FIELD HOU5E 1.1 Construction. The District shall cause the Fieldhouse to be constructed on the Fieldhouse Site. The Fieldhouse is intended to be used for indoor versions of outdoor sports and typical indoor recreation activities and programs. The District acknowledges and agrees that it will be required to obtain a building permit and any other permits and approvals from the appropriate governmental authority having jurisdiction before commencing any construction. 1.2 Operation and Maintenance. Upon completion, the Fieldhouse shall be operated and maintained by the District subject to the terms of this Agreement. 1.3 The County reserves the right to further develop or improve the remainder of the Property as it sees fit, regardless of the desires or view of the District, except that any such development of the Property shall be in accordance with all applicable land use and other regulations of the County or other governmental authorities having proper jurisdiction. The District acknowledges the current uses put to the properties adjacent to the Fieldhouse Site by other tenants of the County and waives any claim or objection it may have now or in the future regarding such uses, so long as such uses remain unchanged. To the extent that any of the neighboring uses change, the District (as a neighboring tenant) shall have the right to object or comment on any land use referral package. 1.4 District shall commence construction of the Fieldhouse within two (2) years from the date of mutual execution of this Agreement. If the District fails to commence construction within such period, the County shall have the right to terminate this Agreement upon ten (10) days advance written notice to the District. Prior to commencement of construction of the Fieldhouse, the District shall have the right to terminate this Agreement upon ten (10) days advance written notice to the County. SECTION TWO RENT 2.1 Rent. The District agrees to pay the County a fixed rent for the Fieldhouse Site at the rate of One Dollar ($1.00) per year, payable in advance. Receipt of the prepaid rent for the entire initial term of twenty (20) years is hereby acknowledged by the County. As set forth in Section 3.3 below, the District shall be responsible for all utilities required to service the Fieldhouse. SECTION THREE USE AND MAINTENANCE OF THE FIELDHOUSE 3.1 Use of Fieldhouse. For the term of this Agreement and any extensions hereof, the County hereby leases the Fieldhouse Site to the District and the District hereby leases the Fieldhouse Site from the County, for the purpose of providing the District's residents and taxpayers with a place for indoor recreational activities and events. 2 3.2 User Rates and Fees. The District may institute reasonable program and user rates for the use of the Fieldhouse or any portion thereof. All program fees and user fees associated with use of the Fieldhouse during the term of this Agreement and any extensions thereof shall accrue exclusively to the District to assist the District with defraying the costs of operating and maintaining the Fieldhouse. 3.3 Maintenance Expenses. All costs associated with the operation and maintenance of the Fieldhouse, including but not limited to payment of all utilities and on-going expenses, maintenance of the landscaped areas connected with the Fieldhouse and administration of the recreational programs offered by the District within the Fieldhouse, shall be borne entirely by the District. The District shall keep the Fieldhouse and all equipment facilities and fixtures therein contained in good order, and in a clean, sanitary, safe, and aesthetically pleasing condition, permitting no waste, damages or injury to the Fieldhouse Site. 3.4 District Volunteers and Employees. Any persons employed by the District, or any volunteers used by the District to assist with the operation and management of the Fieldhouse, including the administration and operation of recreational programs offered by the District at the Fieldhouse, shall be deemed employees or volunteers of the District and shall not be considered employees or volunteers of the County for any purpose. SECTION FOUR AUTOMATIC RENEWAL AND TERMINATION OF LEASE 4.1 Automatic Renewal. This initial term of this Agreement shall expire on December 31, 2028. This Agreement shall automatically renew for subsequent twenty (20) year terms, commencing on January 1, 2029, unless either party notifies the other in writing no less than ninety (90) days prior to the applicable termination date of that party's intent not to renew. The County shall not be authorized to terminate this Agreement during the initial term or any extended term hereof, except in accordance with the provisions of Section 4.2 below. 4.2 Termination. If the County terminates this Agreement prior to expiration of the initial term or any extended term hereof, the County will pay to the District an amount equal to the depreciated value of the Fieldhouse, calculated as of the effective date of such termination based on the District's total direct costs for the Fieldhouse depreciated on a straight line basis over a twenty year period, or twenty percent (20%) of such costs, whichever is greater (the "Reimbursement Amount"). A closing to effect the transfer of the Fieldhouse to the County shall then be held within sixty (60) days following delivery of the termination notice to the District, at a date and time mutually selected by the parties. Payment of the Reimbursement Amount shall be made by the County at closing in cash, electronic wire transfer, or other good funds. If the County exercises its right to terminate this Agreement as set forth above and remits the Reimbursement Amount to the District, the District shall execute and deliver a bill of sale and/or other documents in a form acceptable to the County Attorney, which document(s) shall transfer title of the Fieldhouse (and all related improvements and permanent fixtures) to the County. If the District terminates this Agreement within the initial term hereof, or if the District is in default under the terms of this Agreement, which default remains uncured for a period of ninety (90) days after notice from the County to the District or which default the District is not taking reasonable steps toward remedying, then the County shall have no obligation to pay any Reimbursement Amount to the District. 3 4.3 Subject to the provisions of Section 4.2 above, either party may terminate this Agreement without cause upon ninety (90) days advance written notice ("Notice of Termination"). Notice of Termination given under this Agreement shall be given in accordance with Section 8. SECTION FIVE REMEDIES 5.1 The parties understand and agree that Section 20 of Article X of the Colorado Constitution contains certain restrictions on multiple fiscal year financial obligations. Therefore, unless otherwise specified herein, the financial obligations of the County and the District under the provisions of this Agreement are expressly contingent upon such funds being appropriated, budgeted, reserved and otherwise made available each year on an annual basis. In the event the County or District fails to appropriate, budget or otherwise make such funds available in any year to fulfill the obligations under this Agreement, the other party may terminate this Agreement. Notwithstanding anything to the contrary contained in this Agreement, the County shall have no obligations under this Agreement nor shall any payment of the Certified Reirnbursement Amount be made, without prior appropriation therefore by the County in accordance with a budget adopted by the Eagle County Board of County Commissioners in compliance with applicable provisions of law. SECTION SIX LIABILITY AND INDEMNIFICATION 6.1 To the extent permitted by law, the District shall indemnify, defend and hold the County harmless from and against any and all claims arising from the District's use of the Fieldhouse Site and the Fieldhouse, or from the conduct by the District of any activity, program or thing that may be permitted or suffered by the County in or about the the Fieldhouse Site, except that neither the District, its directors, agents or employees will be liable under this paragraph for any claim, loss, damage, cost, charge or expense arising out of any negligent or intentional act of the County or any third party not an agent or employee of the District. The District shall also indemnify, defend and hold the County harmless from and against any and all claims arising from any breach or default in the performance of any obligation of the District's part to be performed under the provisions of this Agreement or arising from any negligence, recklessness, intentional acts or omissions of the District or any of its agents, employees or invitees and from any and all costs, attorney fees, expenses and liabilities incurred in the defense of any such claim or action or proceeding brought on any such claim; provided, however, that nothing contained herein waives or is intended to waive any protections that may be applicable to the District under the Government:~l Immunity Act, Section 24-10-101 et. seq., C.R.S., or any other rights, protections, immunities, defenses or limitations on liability provided by law, and subject to any applicable provisions of the Colorado Constitution and applicable laws. 6.2 To the extent permitted by law, the County shall indemnify, defend and hold the District harmless from and against any and all claims arising from the County's use of the Fieldhouse Site or the Fieldhouse or from the conduct by the County of any activity, program or thing that may be permitted or suffered by the County in or about the Fieldhouse Site, except that neither the County, its Commissioners, agents or employees will be liable under this paragraph for any claim, loss, damage, cost, charge or expense arising out of any negligent or intentional act of the District or any third party not an agent or employee of the County. The County shall also indemnify, defend and hold the District harmless from and against any and all claims arising from any breach or default in the performance of any obligation of the County's part to be performed under the provisions of this Agreement or arising from any negligence, recklessness, intentional acts or omissions of the County or any of its agents, employees or invitees and from any and all costs, attorney fees, expenses and liabilities incurred in the defense of any such claim or action or proceeding brought on any such claim; provided, however, that nothing contained herein waives or is intended to waive any protections that may be applicable to the County under the Governmental Immunity Act, Section 24-10-101 et. seq., C.R.S., or any other rights, protections, immunities, defenses or limitations on liability provided by law, and subject to any applicable provisions of the Colorado Constitution and applicable laws. SECTION SEVEN IN5URANCE 7.1 Each party agrees to maintain as part of its insurance coverage, during the term of this Agreement, comprehensive public liability insurance covering and insuring such party against liability arising out of the ownership, use or maintenance of the Fieldhouse Site or the breach of this Agreement. The bodily and personal injury limits of such policies shall be no less than the statutory limitations as defined in the Colorado Governmental Immunity act, Section 24-10-114, C.R.S., with an amount of $150,000 per occurrence and $600,000 in the aggregate, or such other amounts as provided by law. 7.2 The District shall procure and maintain following completion of the Fieldhouse, insurance against claims for injuries to persons or damages to property, which may arise, or in connection with the District's ownership and operation and maintenance of the Fieldhouse. All insurance policies shall name the County as an additional insured. The bodily and personal injury limits of such policies shall be no less than the statutory limitations as defined in the Colorado Governmental Immunity Act, Section 24-10-114, C.R.S., with an amount of $150,000 per occurrence and $600,000 in the aggregate, or such other amounts as provided by law. SECTION EIGHT NOTICES 8.1 All notices that maybe required or given pursuant to this Agreement by a party to the other, shall be deemed to have been fully given when made in writing and deposited in the United States first class mail, postage prepaid, and addressed as follows: DISTRICT Recreation Director Western Eagle County Metropolitan District P.O. Box 246 Eagle, CO 81631 5 COUNTY Public Works Director Eagle County P.O. BOX 850 Eagle, CO 81631 8.2 The address to which any notice, other writing may be given to any party as written above provided may be changed by written notice given by such party as above provided. SECTION NINE MISCELLANEOUS PROVISIONS 9.1 No modification or waiver of this Agreement or any covenant, condition or provision contained herein shall be valid unless in writing and duly executed by all parties. 9.2 This written Agreement embodies the whole Agreement between the parties and there are no inducements, promises, terms, conditions or other obligations made or entered into by the parties other than those contained herein. 9.3 This Agreement shall be binding upon the parties hereto, the respective successors or assigns, and may not be assigned by any party without the express written consent of the other parties. 9.4 All terms contained in this Agreement are severable and in the event that any of them shall be held invalid by a court of competent jurisdiction, this Agreement shall be interpreted as if such invalid term or condition is not contained herein. 9.5 The signatories to this Agreement affirm and warrant that they are authorized to enter into and execute this Agreement, and all necessary actions, notices, meetings and/or hearings pursuant to any law required to authorize their execution of this Agreement have been made. 9.6 This Agreement may be amended from time to time by a written agreement duly authorized by all the parties to this Agreement. 9.7 This Agreement does not and shall not be deemed to confer upon or grant to any third party any right enforceable at law or equity arising out of any term, covenant, or condition herein or the breach thereof. 9.8 This Agreement shall be governed by the laws of Colorado. Venue and jurisdiction for any dispute arising from or out of this Agreement shall lie with the District Court in and for Eagle County, Colorado. 9.9 The District shall have at all times the full and free right of ingress to and egress from the Fieldhouse Site and improvements constructed thereon, including but not limited to the Fieldhouse. Such right shall extend to persons or organizations furnishings services to the District, including all related vehicles and machinery. Such right shall also extend to all taxpayers and residents of the District or other members of the public that recreate at the Fieldhouse. The County and County's authorized representatives shall at all times have the right to enter upon and inspect the Fieldhouse Site. 9.10 T1ie District shall not assign this Agreement, sublet, or grant any concession or license to the premises or any part thereof, without the County's advance written consent. 9.11 This Agreement may be signed in counterparts, and each counterpart will be considered an original. This Agreement may be executed by facsimile signature. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COUNTY COMMISSIONERS Clerk to the BoKrd of Count Commissioners -~---- Lessee: IJ1Ulvf~ ~~ ~ ~ Peter Runyon, Chairma WESTERN EAGLE COUNTY METROPOLITAN RECREATION DISTRICT ATTEST: Secretary ~ .• t ~~;'NOTgAr` ~~,•pUBLIC:~= .-~ By: Chairp o and President State of Colorado, County of ~~c Signed before me on this ~ y- day of C%_~-uh~-;~ , 20 C~ by i,t~`(, ,~ (C-, l,~- 5 c k~.~,~,t„n,> Noffiry Public ~- Engineering Deparhnent Phone: (970) 328-3560 FAX: (970) 328-8789 www.eaglecounty.us September 18, 2008 WECMRD LEASE AGREEMENT Eagle County P.O. Box 850 500 Broadway Eagle, CO 81631 A description of WECMRD FIELDHOUSE to be leased. For: Eagle County. LEGAL DESCRIPTION A tract of land, located in the SW 1/4 of Section 4, TSS, R82W of the 6th P.M., County of Eagle, State of Colorado, being a portion of Tract C, BERRY CREEK /MILLER RANCH PLANNED UNIT DEVELOPMENT, a subdivision located in Section 3, 4, and 5, TSS, R82W of the 6th P.M., County of Eagle, State of Colorado` according to the recorded plat thereof, described as follows: COMMENCING at the most northerly corner of said~Tract.C, also being the most easterly corner of Lot 2, COLORADO MOUNTAIN COLLEGE AT BERRY CREEK, a re-subdivision of Tract A, of said BERRY CRIrEK /MILLER RANCH PLANNED UNIT DEVELOPMENT, from which the most westerly corner of said Tract C bars South S 1 degrees 06 minutes 06 seconds West, 602.96 feet (Basis of Bearing); thence South 22 degrees 30 minutes 25 seconds East, 586.29 feet to the TRUE POINT OF BEGII~NING: Thence South 62 degrees 48 minutes 18 seconds East, 316.20 feet; Thence South 12 degrees 58 minutes 09 seconds West, 137.52 feet; Thence South 27 degrees 11 minutes 42 seconds West, 126.69 feet; Thence North 62 degrees 48 minutes 18 seconds West, 350.00 feet; EXHIBIT 2 Thence North 27 degrees 11 minutes 42 seconds East, 260.00 feet to the TRt TE POINT OF BEGINNING. Area = 2.04 acres, more or less. ~ '. .~ ; ~. .~ ,' ~ ., , NOTICE: According to Colorado law you mast commence any legal action based upon any defect in this survey within three years after you first discovered such defect. In no event, may any action based upon any defect in this ~rvey be commenced more than ten years from the date of the certification shown hereon. ~~a°~~"~p0 R E 6j '~~'iii ~~ .~~ ~ 1. 'di;. Ae_', Kelly ML l~`. 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