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HomeMy Public PortalAboutResolution 2009-02-04 Approving an Intergovernmental Lease Agreement with Grand County Water and Sanitiaton District No. 1 TOWN OF FRASER RESOLUTION NO. 2009-02-04 A RESOLUTION APPROVING AN INTERGOVERNMENTAL LEASE AGREEMENT WITH GRAND COUNTY WATER AND SANITATION DISTRICT NO.1 WHEREAS, The Intergovernmental Lease Agreement provides for a non-exclusive lease of the Reservoir property for public recreational use; and WHEREAS, the Fraser Board of Trustees has reviewed the Intergovernmental Lease Agreement and determined the request to be in the best interest of the Town of Fraser. NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FRASER, COLORADO THAT: 1. That the Town Board of Fraser, Colorado hereby approves the attached Intergovernmental Lease Agreement and authorizes the Mayor to execute the Intergovernmental Lease Agreement. 2, All documents must be executed within three (3) months of the date of this Resolution or this approval shall no longer be effective. DULY MOVED, SECONDED AND ADOPTED THIS 41h DAY OF FEBRUARY, 2009. TOWN OF FRASER OfL-C &~eA Lu Berger, Town erk ~~ Fran Cook, Mayor ATTEST: ( \ \ , \ ) I ýÿ INTERGOVERNMENTAL LEASE AGREEMENT THIS LEASE is made effective I~.h L\ ,2009, by and between GRAND COUNTY WATER AND SANITATION DISTRICT NO. I, a special district and quasi- municipal corporation of the State of Colorado (herein referred to as "Landlord"), and THE TOWN OF FRASER, COLORADO, a municipal corporation of the State of Colorado (herein referred to as "Tenant"). WHEREAS, Landlord is the owner of that certain tract of real property located in Grand County, Colorado, more particularly described on Exhibit "A" attached hereto and incorporated herein by this reference (the "District Property"); and WHEREAS, for purposes of this Agreement, the District Property consists of two parcels of land, one of which is referred to herein as the "Reservoir Property" and other is referred to herein as the "Undeveloped Property"; WHEREAS, two (2) water storage reservoirs, known as the GCWSD Water Storage Reservoir No. I and the GCWSD Water Storage Reservoir No.2, which were adjudicated in Case No. 02CW367, District Court, Water Division No.5 (the "GCWSD Reservoirs"), are located on the Reservoir Property; WHEREAS, the Undeveloped Property consists of the portion of the District Property which excludes the Reservoir Property and is generally located to the northwest of the Reservoir Property; WHEREAS, the primary purpose of the GCWSD Reservoirs is for the storage and release of water pursuant to Landlord's water storage rights and augmentation plan(s) now or hereafter adjudicated by Landlord; and WHEREAS, Tenant desires to obtain a non-exclusive lease of said Reservoir Property and the GCWSD Reservoirs to allow for public recreational use thereof; WHEREAS, Landlord is willing to grant such a lease to Tenant upon the terms and conditions set forth herein; and WHEREAS, section 17-3-IO(a) of the Fraser Municipal Code allows property to be divided pursuant to a subdivision exemption, which applies in certain circumstances including "a division which creates parcels for community facilities. NOW THEREFORE, in consideration of the premises and the mutual covenants set forth herein, the sufficiency of which is hereby acknowledged by the parties, the parties agree as follows: - I - ARTICLE 1.0 - DIVISION OF THE DISTRICT PROPERTY 11 Landlord agrees that it shall submit an application for subdivision exemption for the District Property within one-hundred and twenty (120) days of the effective date of this Agreement pursuant to section 17-3-10 ofthe Fraser Municipal Code (the "Code"). Landlord shall bear the costs of the application as provided in the Code. The purpose of the subdivision exemption application shall be to divide the District Property into a Reservoir Property lot and an Undeveloped Property lot. U Tenant shall process and consider Landlord's subdivision exemption application pursuant to the procedures set forth in the Code. U Notwithstanding any other provision of this Agreement, if: (a) Tenant has not granted or denied Landlord's subdivision exemption application within one year from the date upon which Landlord submits its application; (b) Tenant denies Landlord's subdivision exemption application; or (c) Tenant grants Landlord's subdivision exemption upon terms and condition not acceptable to Landlord in its sole discretion, this Agreement shall terminate and be of no further force and effect. ARTICLE 2.0 ,. LEASE; PURPOSE U Upon division on the District Property as described in Article 1 above, Landlord hereby grants to Tenant a non-exclusive lease of the Reservoir Property and the GCWSD Reservoirs, for Tenant's purpose of providing public recreational use of such property in accordance with the terms hereof. 2.2 Tenant may utilize the Reservoir Property and the GCWSD Reservoirs for any public recreational use that does not interfere with the Districts use thereof for water augmentation purposes. Such recreational uses may include, but are not necessarily limited to, public fishing access, non-motorized boating, hiking, wildlife viewing, special events and associated parking. 2.2.1 Tenant shall be solely responsible for managing and regulating such public recreational use and shall bear all costs and expenses relating to such use. Without limiting the generality of the foregoing, Tenant may limit the hours of public access and the types of recreational uses permitted, establish and enforce fishing and similar regulations regarding such use, and may discontinue such uses on a seasonal or other basis. Tenant shall not limit public access to the GCWSD Reservoirs to its residents and shall not otherwise exclude any member of the general public. 2.2.2 It is anticipated that Tenant may make limited alterations and/or improvements to the Reservoir Property to facilitate such public recreational use. However, Tenant agrees not to undertake any alterations or improvements without prior written permission from Landlord. Unless otherwise agreed by the parties, any permanent improvements made by Tenant shall become the property of Landlord and shall be surrendered with the Reservoir Property and the GCWSD Reservoirs upon termination of this lease. -2- ýÿ 2.3 Landlord expressly reserves the right to use the Reservoir Property and the GCWSD Reservoirs for water storage and augmentation purposes, including storage and release of water in the ponds as deemed necessary or convenient by Landlord now or in the future, and to lease or allow third-parties the right to use the Reservoir Property or the GCWSD Reservoirs for purposes related to Landlord's operations. It is acknowledged that such use by Landlord may interfere with, and shall have precedence over, the public recreational activities established and managed by Tenant pursuant to this Lease. In no event shall Landlord be liable to Tenant or any recreational user for interference with such recreational use (including without limitation death or loss of fish) or for any injury or damage to person or property arising from Landlord's use of the property for water storage or augmentation purposes. Landlord further reserves the right to use, grant permission or lease the Reservoir Property or the GCWSD Reservoirs to third-parties for activities not inconsistent with the recreational uses administered by Tenant hereunder. In the event Tenant asserts a claim for injury to person or damage to property against any such third-party, Tenant agrees that it shall look solely to said third-party to satisfy its claim and that it shall not assert any claim or related claim against Landlord. ARTICLE 3,0 - MUTUAL BENEFIT; NO RENT; TERM JJ. The parties agree that this Lease is in furtherance of a public purpose for the benefit of the constituents of both Landlord and Tenant and other members of the public. No rental payments or other monetary consideration shall be required for the use provided herein. 3.2 The term of this Lease shall commence as of the effective date set forth above and shall continue until terminated by one or both parties. Either Landlord or Tenant may terminate this lease at any time, upon not less than thirty (30) days written notice to the other party. Tenant shall remove any of its movable property located on the Reservoir Property within thirty (30) days after such termination; provided, however, that Tenant shall give Landlord at least ten (10) days prior written notice of the property it intends to remove and a proposed date of removaL ARTICLE 4.0 - INDEMNIFICATION; INSURANCE :L1 Landlord and Tenant shall each be responsible for obtaining and paying for whatever hazard insurance they desire on their separate facilities and movable property located on the Reservoir Property. 4.2 Tenant agrees to indemnify and hold harmless Landlord, its directors, officers, employees, insurers and/or self-insurance pools (collectively referred to herein as "Indemnitees"), from and against all liabilities, losses, claims, demands, damages and expenses, including reasonable attorney fees, incurred or suffered by Landlord as a result of any accident, injury, or damage caused by, resulting from, arising out of or in any manner connected with this lease, Tenant's use of the Reservoir Property or the GCWSD Reservoirs, or the public recreational use of the Reservoir Property or the GCWSD Reservoirs pursuant to this Lease, except for any such accident, injury or damage determined to have been caused by or attributed directly to the gross negligence or intentional wrongful act(s) of Landlord or any Indemnitees. - 3 - 4.3 Tenant agrees to obtain and keep in force, at Tenant's expense, during the entire term of this Lease, a policy of comprehensive general public liability and property damage insurance providing coverage for claims for bodily injury or property damage that may arise out of Tenant's operations and the public recreational activities administered by Tenant on the Reservoir Property and the GCWSD Reservoirs, in amounts of not less than $150,000.00 for injury to one person in any single occurrence and not less than $600,000.00 for injury to two or more persons in any single occurrence, as such amounts may be recoverable under c.R.S. 24-10. 114(1). In the event the amounts recoverable under said c.R.S. 24-10-114(1) shall be increased in the future, Tenant shall obtain a corresponding increase in such liability insurance coverage. Such liability insurance policy shall include the Indemnitees as additional named insureds thereunder during the term of this Lease. Tenant agrees to provide proof of the insurance coverage required under this paragraph upon Landlord's request. 4.4 Both Landlord and Tenant are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, c.R.S. 24-10-101 et seq., as from time to time amended, or otherwise available to Landlord and Tenant and their officers and employees. ARTICLE 5.0 - MISCELLANEOUS PROVISIONS 5.1 Both parties to this Agreement recognize and agree that the water supply for the GCWSD Reservoirs is dependent upon sources that are variable in quantity and quality and beyond the control of Landlord. No liability shall attach to Landlord on account of any failure to accurately anticipate availability of water or because of an actual failure of the GCWSD Reservoirs to store water due to inadequate runoff, the priority of the water rights for the GCWSD Reservoirs, operational events or an occurrence beyond the reasonable control of Landlord, including but not limited to an act of God or and an inability to store water arising out of the order of any court or the lawful order of any governmental administrative body or agency with authority to regulate matters pertaining to water, public utilities, public health or pollution control. 5.2 Tenant agrees to not oppose, by the filing of a statement of opposition or otherwise, any water rights application filed by Landlord that includes the GCWSD Reservoirs, including without limitation applications for finding of diligence, change of water rights, exchange or a plan for augmentation, except as may be reasonably necessary to protect Tenant's water rights from injury. Tenant further agrees to not oppose any substitute water supply plan that includes the GCWSD Reservoirs, unless reasonably necessary to protect Tenant's water rights from injury. 5.3 Tenant agrees to provide appropriate sign age clearly describing the permissible public uses and conditions of use of the leased portion of the Reservoir Property including without limitation that questions regarding such use of the Reservoir Property for recreational purposes should be directed to Tenant and not to Landlord. -4- 5.4 Nothing in this lease shall give, or be construed to give, Tenant any legal or beneficial interest in Landlord's water rights for the GCWSD Reservoirs adjudicated in Case No. 02CW367, District Court, Water Division No.5. 5.5 Except as otherwise expressly provided herein, all notices required or permitted under this Lease shall be in writing and shall be delivered in person or sent by United States certified mail, return receipt requested. If sent by mail, a notice shall be deemed to have been properly given when deposited in any post office, branch post office, or mail depository regularly maintained by the United States Postal Service and sent by certified mail, return receipt requested, with postage thereon pre-paid, addressed as follows: To Tenant: Town of Fraser Post Office Box 120 Fra~er, Colorado 80442 To Landlord: Grand County Water and Sanitation District No. I Post Office Box 3077 Winter Park, Colorado 80482 or addressed to each respective party at such other address as such party may hereafter furnish to the other party in writing. 5.6 Tenant shall not assign its interests under this Lease, in whole or in part, without first obtaining Landlord's express written consent in each instance. 5.7 This Lease shall be construed under and shall be governed by the laws of the State of Colorado, the state courts of which shall have exclusive jurisdiction over any court action arising therefrom. 5.8 This Lease embodies the entire agreement and understanding between the parties relating to the subject matter hereof and may not be altered or amended except by writing signed by Landlord and Tenant and specifically referring hereto. 5.9 Except as otherwise expressly provided herein, this Lease and the rights and duties of Landlord and Tenant hereunder shall be binding upon and shall inure to the benefit of their respective successors and permitted assigns. - 5 - IN WITNESS WHEREOF, the parties have hereunto subscribed their signatures, effective the date first above mentioned. TENANT LANDLORD TOWN OF FRASER, COLORADO GRAND COUNTY WATER AND SANITATION DISTRICT NO. I BY: ~,'UL~ M Fran Cook, Mayor BY: -President ATTEST: ~ &A%(l^ Lu Berger, CMC, wn Clerk (S E A L ) ( ( \ ATTEST: Secretary \J )J , STATE OF COLORADO) ) SS COUNTY OF GRAND ) The foregoing instrument was acknowledged before me on 2009, by Fran Cook, as Mayor, and Lu Berger, as Town Clerk, of the Town of Fraser, Colorado, a municipal corporation of the State of Colorado, Tenant. Witness my hand and official seal. My Commission expires: T)"$/OB!ZOI L ^_ r\.-.... ~~.~ ( SEA L ) Notary Public -6- STATE OF COLORADO) ) SS COUNTY OF GRAND ) The foregoing instrument was acknowledged before me on 2009, by ,as President, and ,as Secretary, of Grand County Water and Sanitation District No. I, a special district and quasi-municipal corporation of the State of Colorado, Landlord. Witness my hand and official seal. My Commission expires: (SEAL) Notary Public -7- ýÿ