Board of Commissioners Regular Meeting Agenda WEDNESDAY, FEBRUARY 14, 2018, 12:00 PM Pitkin County Library ­ Dunaway Community Room 120 N Mill St, Aspen, CO  81611 (Commissioner Clapper not present) Additions/Deletions to Agenda  Public Comments (please limit to 3 minutes per speaker unless otherwise advised by the Chair) Commissioner Comments  Consent Items: Consent items are generally perceived as non­controversial and allow the Board to spend its time on more  complex items elsewhere on the agenda. A Board member or member of the public may ask for a Consent item be removed for  individual consideration. Consent items typically have been discussed in work sessions with the Board and are approved by a single  motion.    Consent Items ­ Single Reading:   1. Minutes of Regular Meeting of January 24, 2018   2. Citizen Board Appointments, Charlotte Anderson (this item will be distributed at the meeting)   3. Resolution Approving the 2018 List of Highway User Tax Fund Roads, Scott Mattice Individual Consideration Items:     Individual Consideration Items / First Readings set for Public Hearings on February 28, 2018:   4. Ordinance Amending Fender Middle Ranch Conservation Easement (fka Deadwood Ranch), Paul Holsinger   5. Ordinance Authorizing an Agricultural Lease of the Emma Open Space South Lease Area and Schoolhouse  Lease Area, Paul Holsinger 6. Resolution Authorizing Amendments to an Intergovernmental Agreement (Approved by Resolution No. 013­ 2016) between the Board of County Commissioners and the City of Grand Junction through the Grand  Junction Regional Dispatch Center, Brett Loeb                 7. Resolution Providing Supplemental Appropriations to the 2018 Budget and Amending the 2018 Budget for  the Co­Responder Grant, Connie Baker Individual Consideration Items / Emergency Ordinance Set for Confirmatory Reading on February 28: 8. Emergency Ordinance Authorizing an Amendment to Title 6, Section 6.48.070(C)(15) and 6.49.070(C)(15)  and (16) of the Pitkin County Code (Marijuana Regulations) Extending the Prohibition of Issuance of  Marijuana Licenses in Certain Caucus Areas until May 15, 2018., Jeanette Jones Individual Consideration Items / Public Hearing, 2nd Readings: 9. Resolution Authorizing Approval of a Cable Franchise Agreement with Comcast of Colorado, Kara Silbernagel 10. Ordinance Adopting Pitkin County Code Title 6, Chapter 6.29 "Pitkin County Graywater Treatment System  Regulations", Kurt Dahl   11. Resolution Repealing and Reenacting Environmental Health Department Fees, Kurt Dahl    Individual Consideration Items / Emergency Ordinance Confirmatory Reading:   12. Ordinance Authorizing the Purchase of the Phillips Mobile Home Park, John Ely Open Discussion  Adjourn Regular Meeting ­ Library event to begin at 4:00 PM  AGENDA and TIMES ARE SUBJECT TO CHANGE MINUTES BOARD OF COUNTY COMMISSIONERS REGULAR MEETING JANUARY 24, 2018  The agenda items contained in these minutes are written in an action only format.  For a video and/or audio production of this meeting, go to: http://pitkincounty.com/374/County-Webcasts  To access the Board of County Commissioners meeting packet material, meeting minutes and final documents associated with the items listed in these minutes go to: http://pitkincounty.com/452/Browse-to-a-File CALL TO ORDER: Patti Clapper, Chair called the regular meeting of the Board of County Commissioners to order at 12:08 p.m. Proclamation Recognizing School Choice Week 2018 ADDITIONS/DELETIONS TO AGENDA: County Manager Jon Peacock asked that the following two items be added to the agenda:   Resolution Designating the Official Agenda Posting Ordinance Authorizing the Purchase of the Phillips Mobile Home Park Action: Commissioner Child moved to add these two items to the agenda. Commissioner Richards seconded the motion. Motion passed with five yea votes. PUBLIC COMMENTS: Marty Treadwell, Project Manager for CORE presented a grant check for a solar system to be installed at the public works facility. COUNTY COMMISSION MEMBERS PRESENT: Commissioners Patti Clapper, Rachel Richards, George Newman, Steve Child and Greg Poschman COMMISSIONER COMMENTS: Commissioner Poschman announced that he recently had solar panels installed on his garage. BOARD OF COUNTY COMMISSIONERS 1 REGULAR MEETING JANUARY 24, 2018 Commissioner Richards offered comments on the school proclamation which was read into the record earlier. Commissioner Clapper announced that the X-Games start tomorrow at Buttermilk CONSENT ITEMS – SINGLE READING: Minutes of Regular Meeting of January 10, 2018 – Motion to Approve as Amended Staff Person: Jeanette Jones, Clerk to the Board Resolution Approving and Adopting Colorado Statewide investment Pool Indenture of Trust – Motion to Approve Resolution Appointing Citizen Board Members – Motion to Approve Staff Person: Charlotte Anderson, Administration Resolution, Designating the Official Agenda Posting Place for the Calendar Year 2018 – Motion to Approve Staff Person: Jeanette Jones, Clerk to the Board Action: Commissioner Newman moved approval of the consent agenda items with an amendment to the January 10th minutes (moving the time that Commissioner Clapper took over as chair) suggested by Commissioner Child. Commissioner Poschman seconded the motion. Motion passed with five yea votes. INDIVIDUAL CONSIDERATION ITEMS: Individual Consideration Items/First Readings Set for Public Hearings on February 14th First Reading – Ordinance Adopting Pitkin County Title 6, Chapter 6.29 “Pitkin County Graywater Treatment System Regulations” – Motion to Approve and set for second reading on February 14th Staff Person: Kurt Dahl, Environmental Health Director Action: Commissioner Richards moved approval of first reading of the Ordinance as written and set for second reading and public hearing on February 14th. Commissioner Poschman seconded the motion. Motion passed First Reading – Resolution Repealing and Reenacting Environmental Health Department Fees – Motion to approve and set for second reading on February 14th BOARD OF COUNTY COMMISSIONERS 2 REGULAR MEETING JANUARY 24, 2018 Staff Person: Kurt Dahl, Environmental Health Director Action: Commissioner Child move approval of the Resolution as written and set for second reading and public hearing on Feburary 14th. Commissioner Richards seconded the motion. Motion passed with five yea votes. First reading – Resolution Authorizing Approval of a Cable Franchise Agreement with Comcast of Colorado – Motion to approve on first reading and set for second reading and public hearing on February 14th. Staff Person: Kara Silbernagel Action: Commissioner Child moved approval of the Resolution as written and set for second reading and public hearing on February 14th. Commissioner Richards seconded the motion. Motion passed with five yea votes. Individual Consideration Items/Public Hearing, One Reading: Application for a Special Events Liquor Permit Submitted by Compass for Lifelong Discovery – Aspen Community School – Motion to Approve Staff Person: Jeanette Jones, Clerk to the Board Action: Commissioner Child moved approval of the application for a special event liquor permit. Commissioner Newman seconded the motion. Motion passed with five yea votes Individual Consideration Items/Public Hearing, Second Readings Second Reading – Ordinance Authorizing an Agricultural Lease of Emma Open Space North Lease Area – Motion to Approve Staff Person: Paul Holsinger, Open Space and Trails Action: Commissioner Newman moved approval of the Ordinance and the Lease as written. Commissioner Poschman seconded the motion. Motion passed with five yea votes. Second Reading – Ordinance Authorizing an Outfitter and Agricultural Lease of the Coke Ovens Open Space – Motion to Approve Staff Person: Paul Holsinger, Open Space and Trails BOARD OF COUNTY COMMISSIONERS 3 REGULAR MEETING JANUARY 24, 2018 Action: Commissioner Child moved approval of the Ordinance and the Lease as written. Commissioner Poschman seconded the motion. Motion passed with five yea votes. Second Reading – Ordnance Authorizing an Agricultural Lease of the Grace Shehi Open Space – Motion to Approve Staff Person: Paul Holsinger, Open Space and Trails Action: Commissioner Newman moved approval of the Ordinance and Lease as written. Commissioner Poschman seconded the motion. Motion passed with five yea votes. Second Reading – Resolution Authorizing the County Manager’s Office to Submit a Grant Application to the Department of Local Affairs ‘Energy and Mineral Impact Assistance Fund, and if Approved, to Accept the Grant for a Bet and Brightest Intern for 2018 and 2019 – Motion to Approve Staff Person: Kara Silbernagel Action: Commissioner Poschman moved approval of the Resolution as written. Commissioner Newman seconded the motion. Motion passed with five yea votes. Emergency Ordinance Authorizing Acquisition of the Phillips Mobile Home Park – Motion to approve and set for confirmatory public hearing on February 14th Staff Person: John Ely, County Attorney Action: Commissioner Newman moved approval of the Ordinance as written and set for confirmatory public hearing on February 14th. Commissioner Richards seconded the motion. Motion passed with five yea votes. LAND USE ITEMS: Land Use Actions: Resolution Approving the White Hawk Ranch LLC Amendment to Board of County Commissioners Resolution No. 91-171, Administrative Decision No’s 502009, 53-2014 and 12-2016 Regarding the Prohibition of Dogs – Motion to approve as amended Staff Planner: Tami Kochen Action: Commissioner Richards moved approval of the Resolution with the following amendments: BOARD OF COUNTY COMMISSIONERS 4 REGULAR MEETING JANUARY 24, 2018      When outside the kennel dogs shall be leashed The kennel shall be located within 50 ft. of the primary residence Visitors or or service providers are prohibited from bringing their dogs to the site No more than two dogs shall be harbored on the property One litter of pups shall be allowed to be harbored on the property until they old enough to be transferred to their permanent homes Commissioner Child seconded the motion. Motion passed with five yea votes. OPEN DISCUSSION: Discussion on housing appointment to be moved to February 13th ADJOURNMENT: Commissioner Richards moved to adjourn the regular meeting of the Board of County Commissions at 2:20 p.m. Commissioner Child seconded the motion. Motion passed with five yea votes. BOARD OF COUNTY COMMISSIONERS 5 REGULAR MEETING JANUARY 24, 2018 Respectfully submitted, _________________________________ Jeanette Jones Clerk to the Board of County Commissioners ____________________________ Patti Clapper, Chair Board of County Commissioners BOARD OF COUNTY COMMISSIONERS 6 REGULAR MEETING JANUARY 24, 2018 AGENDA ITEM SUMMARY REGULAR MEETING DATE: 2/14/2018 AGENDA ITEM TITLE: RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, APPROVING THE 2018 LIST OF HIGHWAY USER TAX FUND ROADS STAFF RESPONSIBLE: Scott Mattice, Road and Bridge Manager ISSUE STATEMENT: The Colorado Department of Transportation (CDOT) requires the County to certify a list of roads annually to receive Highway User Tax Fund (HUTF) funds. BACKGROUND: Annually, Staff updates a road list which is submitted to CDOT to receive HUTF funds. Changes can include road vacations, changes in width, length, changes from gravel to paved, and additions of roads. The list corresponds with roads included in the Pitkin County Road Maintenance and Management Plan and the United States Forest Service Roads included in the Schedule A Agreement. This year the only change is the addition of Meadowood Drive. The Highway Users Tax Fund (HUTF) is a statutorily defined, state-collected, locally-shared revenue that is distributed monthly among the state, counties and municipalities. HUTF revenues are derived primarily from: Basic Fund – the first seven cents of motor fuel tax and various motor vehicle registration, title and license fees and taxes; Motor Fuel Tax Increases – the 1981 two cents gasoline and special fuel, 1983 three cents gasoline/four cent special fuel, and 1986 six cents gasoline/seven and one-half cents special fuel tax increases; 1989 HUTF Increase – a two cents per gasoline tax increase/two and one-half cents special fuels tax decrease, driver’s license and motor vehicle registration fee increase, an increase of certain truck registration fees to offset the reduced special fuel tax effective in 1989; and the additional two cents per gallon gasoline tax increase effective January 1, 1991; 1995 HUTF Increase – SB 95-47 phased in over three years a reduction in the allowable purposes for which HUTF revenues can be allocated. This resulted ultimately in $39 million a year more in HUTF receipts being available for streets and roads; and FASTER surcharges – SB 09-108 imposed a road safety surcharge to vehicle registration fees for deposit into the HUTF with an 18% municipal share. Also deposited in HUTF and shared are a daily rental car fee, an oversize vehicle permit surcharge, and an increase in the penalties for late vehicle registration. LINK TO STRATEGIC PLAN: This item falls under the core focus area of Flourishing Natural & Built Environment. It’s essential to funding the maintenance of the County’s roads. BUDGETARY IMPACT: This item will allow for the County to receive approximately $1,234,668 to be used for maintenance of the County Road system. The total maintenance budget for Road and Bridge Operations is approximately $2.2M. RECOMMENDED BOCC ACTION: Approve the resolution. ATTACHMENTS: A. Resolution B. CDOT signature page C. CDOT Mileage Statistics for Pitkin County D. Pitkin County Annual Road Inventory Report E. Major Changes Report for Pitkin County F. How are County lane miles calculated and adjusted Attachment A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS (“BOCC”) OF PITKIN COUNTY, COLORADO, APPROVING THE 2018 LIST OF HIGHWAY USER TAX FUND ROADS RESOLUTION NO. ______-2018 RECITALS: 1. Pursuant to Section 2.8.4 (Actions) of the Pitkin County Home Rule Charter (“HRC”), all matters not required to be acted upon by ordinance or formal resolution may be acted upon by informal resolution. 2. The County is required to submit to the Colorado Department of Transportation a certification indicating any changes in total mileage, system designation, surface type and roadway condition data each year for Highway User Tax Funds (HUTF). 3. The data submitted in the annual certification report will be forwarded to the State Treasurer to allocate and distribute HUTF funds. 4. The attached table is the annual certification report. 5. The BOCC finds that it is in the best interests of the citizens of Pitkin County to approve this Resolution. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Pitkin County, Colorado that it approves a RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS (“BOCC”) OF PITKIN COUNTY, COLORADO, APPROVING THE 2018 LIST OF HIGHWAY USER TAX FUND ROADS and authorizes the Chair to sign on behalf of the county. INTRODUCED, READ AND ADOPTED ON THE 14th DAY OF Febraury,2018. ATTEST: BOARD OF COUNTY COMMISSIONERS By: _________________________ Jeanette Jones Deputy County Clerk By: _____________________________ Patti Clapper, Chair Date: ______________ APPROVED AS TO FORM: MANAGER APPROVAL ___________________________ John Ely, County Attorney 1_______________________________ Jon Peacock, County Manager Attachment 59.25 miles of arterial streets 206.97 miles of local streets 266.22 total miles of H.U.T. eligible streets Colorado Department of Transportation 7/203 8 Pitkin Co Signature Sheet 58.46 miles of non H.U.T. eligible streets - Maintained by others 0.85 miles of non H.U.T. eligible streets - Not maintained This mileage is the certified total as of December 31, 2017 declare under penalty of perjury in the second degree, and any other applicable state or federal laws, that the statements made on this document are true and complete to the best of my knowledge. Commissioner Date Commissioner Date Commissioner Date Commissioner Date Commissioner Date We are required to inform you that a penalty of perjury statement is required persuant to section 18-8-503 C.R.S. 2005, concerning the removal of requirements that certain forms be notarized. FIPS Code 097 The Colorado Department of Transportation can contact the following person with questions regarding this report: Name Phone Submit this signed copy with your annual mileage change report to the Colorado Department of Transportation. Attachment 1/31l2018 CDOT HUTF Calculate Mileage A Local Road Editor gemrm?zmpf Home Help Resources Contact Us Logoff .. ransportatlon Mileage Statistics Totals for Pitkin Co k9) Help HUTF Eligible CenterLine Miles -- - - -- -- Lane Miles Paved: Arterial: Paved: Arterial: [112.21 59.25 [2747.98 [130.32 I Unpaved: Local: Unpaved: Local: [1.44.61? {266.97 237.a1 [355.43 Total eligible: Total: [266.22 l485.79 Non-eligible . Miles. . . .. . Lane . . .. .. . . . . Paved: Paved: 2.36 4.81 I Unpaved: Unpaved: 56.95 I 60.76 Total non-eligible: Total: I 59.31 I 65.57 Download signature sheet (pdf) Get Adobe Reader Print this page A 1 Department or . i Transportation Version 2015.9, Build 6353, Revision 16499 hitna??wehhl ll' wm?2>>ozm IOmmem 5me momZEFZDOE OQON 00009. um 00 0N 09m m_ .2. 00?. am >000; ww n_ 00100mg $535 4.5 00 NN Nm?. hr mm I093 5r 0m KNEE EMEOJ 9. VJ . n_ 00m=22< MHFEJ Omr a . zoraz 3.3m so 2&0? 2 $6020.8 m. .. .. ?mi .. (an? ?iww?w mo mmozoczgz no as 2600.8. 8.8 .88 N4 2 EU k50 ZnOm mm r0 . 00 _n 000?. n_ 00.0 0 0 NN 9 Win IOmmw 00N Om VEMEO mEnwOw Fw000N 000N n_ 00.0 N. 0 0. 0N omN IOn?mm m2 10.0mm 0NN DE xwm?EO mimow me>> 0 am mEmOm Emu; 0 000N 0082.5 009. n_ 00mm.jm_w 2% h. 000N mm 002.0V 00v 0m m2_n_mm_>>0n_ ., 00_. mx? wag?.2252. a 00.0 0 yuan huh? . 0m mm VO0N 0 a? .60 ?gW?1?W?m?as$ an?? . ?8 manor a ?o o. . 0.8 4mm, 9? mu So no 2m .2601 0.3 3. 3 A 0.8 _n .58 >>w0m r< N8 EEOI Zm 33w? 0.0% mm .900 mo88. 0.00 Hang? ma. Zm 00w mun rmOm UEm?Am?r 400 rmOw 00m 0 Am 0 0.00 . N000 Attachment addnew 26 AM 22: Ix. C) .Attachement Haw are County lane miles calculated and adjusted? A lane is de?ned as 10 feet of road width. The total width of the road (the travelway) is divided by 10 to determine the number of lanes. For example: a 24 foot wide road has 2.4 lanes. The number of lanes is then multiplied by the length of the road to determine the ?lane-miles?. Total lane mileage is calculated separately for paved and unpaved roads. Paved roads are given a 1.5 factor over unpaved roads. Paved lane mileage totals are adjusted by multiplying the paved lane mileage total by this factor. - . Each county has a terrain factor between 1 and 3 (?mountainous?). A11 lane mileage . totals (paved and unpaved) are adjusted by multiplying them by this factor. Finally, the adjusted paved and unpaved lane mileage totals are summed to determine total adjusted lane mileage for the county Counties have to update information on their roads in the CDOT local road system inventory each year. Roads must be open, used by the public, and maintained to be counted. Counties can count Forest Service road lane-miles that they maintain under a Schedule A agreement with the USF S. AGENDA ITEM SUMMARY REGULAR MEETING DATE: February 14, 2018 AGENDA ITEM TITLE: AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, AMENDING THE DEADWOOD RANCH CONSERVATION EASEMENT (F.K.A. FENDER MIDDLE RANCH) STAFF RESPONSIBLE: Paul Holsinger, OST Agriculture and Conservation Easement Administrator ISSUE STATEMENT: The landowner of Fender Middle Ranch conveyed a conservation easement to Pitkin County and Aspen Valley Land Trust in 2011. This easement must be amended to satisfy a condition of approval specified in a land use resolution associated with the property. BACKGROUND: The Deadwood Ranch (f.k.a. Fender Middle Ranch) Conservation Easement was conveyed to Pitkin County and Aspen Valley Land Trust (AVLT) and recorded on March 29, 2011 at reception number 578749 (the “Conservation Easement”). The property was conserved through the County’s Conservation Development – Planned Unit Development (CD-PUD) process. Over the past two years, the landowner has applied to amend their land use approvals for their two adjacent properties, Deadwood Ranch I (344-acre parcel encumbered by conservation easement) and Deadwood Ranch II (an adjacent 35-acre parcel). The landowner’s proposal included;      Merge Deadwood Ranch II with Deadwood Ranch I parcel. Rezone Deadwood Ranch II to CD-PUD and include it in the CD-PUD Plan and the Conservation Easement for Deadwood Ranch I. Transfer the development right from Deadwood Ranch II to Deadwood Ranch I to provide additional floor area on Deadwood Ranch I within the previously approved Activity Envelopes. No new development would occur on Deadwood Ranch II and the approved Activity Envelopes would be vacated. Amend the Land Use Code to create a third development option in the CD-PUD zone district. Relocate Activity Envelope #1 and revise Activity Envelope #2 on Deadwood Ranch I. OST staff worked closely with community development staff throughout the process to ensure the land use and subsequent conservation easement amendment could be considered under OST Stewardship Policy #10 – Conservation Easement Amendment (attached). The Pitkin County BOCC has approved the land use amendment through Resolution 147-2016. A condition of the approval requires an amendment to the Conservation Easement to adjust the activity envelopes and encumber the Deadwood Ranch II property and its water rights, and to guarantee continued commercial agricultural practice and operations. 2/14/2018 AIS_Deadwood CE Amendment Page 1 of 3 The primary aspects of the land use application necessitating conservation easement amendments were assessed by staff and include;  Additional encumbrance of the 43.863-acre Deadwood Ranch II property – This addition to the conservation easement would eliminate a development right and further protect a small segment of West Sopris Creek and is considered by staff to be an enhancement to the conservation values of the conservation easement. The amendment policy also states that amendments to add additional land to conservation easements a legitimate circumstance for amendment.  Relocation of Activity Envelope 1 – AVLT Staff initially proposed this activity envelope adjustment. The envelope acreage will not change and is being proposed in a location which will not necessitate an adjustment to the access road alignment. The proposed area has essentially the same environmental attributes with regards to vegetation and wildlife habitat according to the baseline report for the property. The site is more desirable to the landowner due to the topography i.e. reduced grade. Amendments to reconfigure conservation easements is listed as a legitimate reason to amend so long as the change is an enhancement or net-neutral. OST staff believe this adjustment is net neutral and will not diminish the conservation values of the property.  Guaranteed Agricultural Production – While amending their land use approvals, the landowner proposed a guarantee of continued agricultural production, and this is reflected in the approval. Staff is currently working with AVLT (conservation easement co-grantee) and the landowner to craft an appropriate instrument to fulfill this condition of the land use approval. Staff feel that any additional language further protecting the agricultural production and water rights is an enhancement to the conservation easement. OST staff feel confident that the Conservation Easement Amendment Policy has been satisfied and the conservation easement was recommended to be approved by the OSTB on June 6, 2017. Pitkin County OST and Aspen Valley Land Trust (AVLT) staff are currently negotiating the final details of the conservation easement amendments. AVLT is considering assigning its interest as a co-grantee in the conservation easement to the County because of concerns with their capacity to enforce the guaranteed agricultural production language. LINK TO STRATEGIC PLAN: Amending this conservation easement meets the County’s goal to responsibly maintain county assets and provide organizational excellence. KEY DISCUSSION ITEMS: AVLT and OST Board and Staff are supportive of this amendment. This amendment is specified as a condition of approval of Resolution 147-2016. BUDGETARY IMPACT: The conservation easement amendment will not affect the budget. RECOMMENDED BOCC ACTION: Staff and Open Space and Trails Board recommend that the Board of County Commissioners approve the attached Ordinance at Public hearing on February 28, 2017. 2/14/2018 AIS_Deadwood CE Amendment Page 2 of 3 ATTACHMENTS: 1. Deadwood Property Maps 2. Stewardship Policy #10 - Conservation Easement Amendment 3. Ordinance 4. DRAFT - First Amended and Restated Deed of Conservation Easement in Gross (Deadwood Parcel) 2/14/2018 AIS_Deadwood CE Amendment Page 3 of 3 Deadwood Ranch CE s pri So Location / Context Cr k ee Roads Rivers/Streams Deadwood II Deadwood Ranch CE Open Space (Fee) Ea st Open Space (CE) So pri sC ree k BLM Prince Creek USFS State kle Din West S opris C reek ke La I Deadwood Ranch CE Original CE Layout R D W t es W P SO is pr So RE SC RI Cr EK k ee Roads Rivers/Streams Deadwood II Deadwood Ranch CE Open Space (Fee) R SP IN GC RD RE E K Open Space (CE) BLM S A G E R IM C I R I This map/drawing is a graphical representation of the features depicted and is not a legal representation. Accuracy is not guaranteed. Deadwood Ranch CE Envelopes R D W t es W P SO is pr So RE SC RI Cr k ee EK Roads Rivers/Streams Deadwood II Deadwood Ranch CE Activity Envelope 1 Approved Activity Envelope 1 Proposed Activity Envelope 2 Activity Envelope 3 Spoils Envelope Open Space (Fee) R SP IN GC RD RE E K Open Space (CE) BLM S A G E R IM C I R I This map/drawing is a graphical representation of the features depicted and is not a legal representation. Accuracy is not guaranteed. Deadwood Ranch CE Envelopes Roads Rivers/Streams Deadwood II Deadwood Ranch CE Activity Envelope 1 Approved Activity Envelope 1 Proposed Activity Envelope 2 Activity Envelope 3 Spoils Envelope Open Space (Fee) Open Space (CE) BLM I This map/drawing is a graphical representation of the features depicted and is not a legal representation. Accuracy is not guaranteed. Conservation Easement Amendment Policy Pitkin County Open Space & Trails Adopted 8/19/10 Purpose This policy shall replace and supersede Pitkin County Open Space and Trails Stewardship Policy #7 – Conservation Easement Amendments. While conservation easements are intended to last in perpetuity, evolving circumstances may warrant an amendment to a conservation easement. Although amending conservation easements should not be commonplace, Pitkin County Open Space & Trails should be prepared to address the legitimate need to amend an easement as they arise from time to time. This procedure provides a framework to analyze when and why an amendment to a conservation easement may be warranted. Amendment Philosophy The Pitkin County Open Space & Trails program’s mission is to acquire, preserve, maintain and manage open space properties for multiple purposes including, but not limited to, recreational, wildlife, agricultural, scenic and access purposes; and to acquire, preserve, develop, maintain and manage trails for similar purposes. When considering any amendment, this mission statement should be compared with the intent of the language in the proposed amendment, in addition to adhering to applicable state and federal laws, and broadly accepted standards and practices for land conservation. Conservation easement amendments are undertaken to improve the clarity, function or conservation intent of the easement, in order to fulfill our agreement with the original Grantor and our conservation commitment to the community in perpetuity. Amendment Principles When considering an amendment to a conservation easement, careful deliberation should be given to the depth and breadth of legal, conservation and other considerations that may be affected by the amendment. A general framework of principles regarding amendments should include, but are not limited to:         The amendment should be consistent with the overall purpose of the conservation easement and any specific provision within the Easement addressing Amendments The amendment will enhance, or not impair, the resource values conserved There are no feasible alternatives available to achieve the desired, and legitimate purpose There are no issues regarding private benefit, or any issues that exist could be adequately addressed It is consistent with any other written expressions of the original Grantor’s intent All conservation easement co-holders approve of the amendment It is consistent with one of the legitimate circumstances for amendments All funder (those land trusts; non-profit organizations; municipalities; federal, state and local governmental agencies; pseudo-governmental agencies and other entities providing funding for a project) requirements are met regarding amendment Legitimate Circumstances for Amendments I. Prior Agreement – In rare cases, a conservation easement has included a specific provision or an unrecorded agreement or letter allowing modification of the restrictions at a future date under specified conditions. Such agreements must be set forth in the conservation easement document or in a separate document signed by all parties at the time or prior to when the conservation easement was executed. The amendment must be consistent with the terms and conservation intent of the original agreement. II. Upgrade Standard Language and Format – The standard language and format of conservation easements are periodically revised to reflect new standard clauses, statutory changes, changes in policy, or to improve enforcement and administration, or enhance the protection of the conservation values of the protected property, or consolidate the legal documents in order to simplify the protection regime. Amendments for any of these purposes will be recommended so long as the changes are consistent with the intent and objectives of the original conservation easement. III. Correct an Error or Ambiguity –An amendment may be recommended to correct an obvious error or oversight that was made at the time the conservation easement was entered into. This may include correction of a legal description, inclusion of language that was unintentionally omitted, or clarification of an ambiguity in the easement in order to avoid litigation over the interpretation of the document in the future. IV. Settle Condemnation Proceedings – Pitkin County may recommend a settlement agreement with the condemning authority where it appears that the land to be taken has little or no resource value, is not central to the purpose of the conservation easement and where condemnation power would be properly exercised for a recognized public purpose. If the condemnation proposed is significant, affects valuable resources and is central to the conservation easement, and there is no other better alternative site for the proposed facility, Pitkin County may still recommend a settlement agreement with the condemning authority if the public health, welfare and safety significantly outweighs the conservation resource values, but will do so only with great caution. In reaching such an agreement, the intent of the original conservation easement must be preserved to the greatest possible extent. V. VI. VII. Amendments to Leverage Additional Conservation –Pitkin County welcomes amendments to add additional land to a conservation easement. We also welcome the return of reserved rights by landowners. Amendments to Reconfigure Conservation Easements – Modifications of reserved rights may be considered, provided that there is clear demonstration that the conservation values of the property are enhanced or determined to be “net-neutral” after the amendment. Similarly, the addition of reserved rights in exchange for additional land conservation may be recommended provided that the above principles and other considerations are substantially met. Amendments Consistent with Conservation Purpose – Other amendments of a conservation easement may be recommended where the modification is consistent with the goals of the original conservation project, there is no or only incidental private benefit, the amendment is substantially equivalent to or enhances the resource values protected by the conservation easement and any additional burden on the Stewardship staff is outweighed by the increased conservation value. Requests made under this section will be reviewed carefully. Circumstances for Denial of a Requested Amendment Granting of an amendment request is at the sole discretion of Pitkin County and its co-grantees, unless such an amendment is specifically enumerated in the easement agreement, or necessary to correct an error. However, the following provides some, but not an exhaustive list, of circumstances under which the County may not consider amending a conservation Easement: I. Private inurement to the Grantee II. Non-compliance with the Home Rule Charter, CO State Statutes and Federal IRS statutes III. Non-compliance with Conflict of Interest policy or other County policies, including the County Land Use Code IV. The request can be addressed by another method (letter of interpretation, Correction Deed, etc.) V. The request weakens the terms of the conservation easement, or results in less than net-neutral effects to the conservation values. VI. The proposed amendment is not acceptable to funding partners or co-grantee. Process  Request should be submitted in writing. If OST is not lead agency, it should be forwarded to the lead agency. If OST is the lead agency, then it should inform sister agencies that a request for amendment has been received.  Request is reviewed by staff, including the attorney’s office, the Community Development Dept, if appropriate, and any other county staff as appropriate. Staff prepare a written determination on whether the request complies with the principles and specifications of this procedure, including verifying compliance with funder requirements, and conceptual acceptance for consideration by co-grantees, analysis of impacts to the conservation values, the economic benefit to the landowner, compliance with aforementioned applicable laws and policies, and a recommendation from staff.  Request is taken to OSTB for recommendation  Partner/funder review and recommendations  Board of County Commissioners Review and Approval  Recording of the amended conservation easement deed with the applicable counties’ Clerk and Recorders office Documentation of Implementation of Amendment In an effort to provide transparency, and provide a written record that due diligence has been completed, documentation of the amendment should be in accordance with County policies and industry best practices. AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, AMENDING THE DEADWOOD RANCH CONSERVATION EASEMENT (F.K.A. FENDER MIDDLE RANCH) ORDINANCE NO. ___________-2018 RECITALS: 1. 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 (“HRC”), the BOCC is authorized to take official action by Ordinance for certain matters where action is prescribed pursuant to the Colorado Revised Statues as amended. 3. The Voters of Pitkin County and the Board of County Commissioners of Pitkin County (BOCC) established an Open Space and Trails Fund for the purposes of acquiring, preserving, managing, and maintaining open space and trails assets and resources, and established an Open Space and Trails Board of Trustees (OSTB) 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. The Fender Middle Ranch Conservation Easement was granted to Aspen Valley Land Trust and Pitkin County and recorded on March 29, 2011 and recorded at reception number 578749 (the “Conservation Easement”). 6. Pitkin County BOCC Resolution No. 147-2016 approved the Deadwood Ranch I LLC and Deadwood Ranch II LLC CD-PUD (Middle Ranch CD-PUD Plan), lot line adjustment/merger, and activity envelope amendments (Resolution 147-2016). 7. Resolution 147-2016 is conditioned upon an amendment to the Conservation Easement to include the Deadwood Ranch II parcel and its water rights under the conservation easement, and to guarantee continued commercial agricultural practice and operations. 8. On August 19, 2010, the Pitkin County OSTB adopted a policy on Conservation Easement Amendments that provides a framework to analyze when and why an amendment to a conservation easement may be warranted. 9. In compliance with the aforementioned policy, the OSTB reviewed the information and recommended approval of the amendment to the Conservation Easement, to cure an error or ambiguity, at their June 6, 2017 board meeting. Ordinance ______-2018 10. The BOCC finds that adoption of this ordinance is in the best interest of the citizens of Pitkin County. NOW, THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Pitkin County, Colorado that it hereby adopts an ordinance of the Board of County Commissioners of Pitkin County, Colorado, accepting amendments to the Deadwood Ranch conservation easement (f.k.a. Fender Middle Ranch) 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 ______-2018 INTRODUCED AND FIRST READ ON THE 14th DAY OF FEBRUARY, 2018 AND SET FOR SECOND READING AND PUBLIC HEARING ON THE 28TH DAY OF FEBRUARY, 2018. NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE RESOLUTION PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE _______ DAY OF _____________, 2018. NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE RESOLUTION POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com ) ON THE ______DAY OF _______________ 2018. ADOPTED AFTER FINAL READING AND PUBLIC HEARING ON THE ______ DAY OF _______________ 2018. PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION, IN THE ASPEN TIMES WEEKLY ON THE _____ DAY OF ____________, 2018. POSTED BY TITLE AND SHORT SUMMARY ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com ) ON THE ______DAY OF_______________, 2018. ATTEST: BOARD OF COUNTY COMMISSIONERS By _________________________ Jeanette Jones Deputy County Clerk By: _____________________________ Patti Clapper, Chair Date: ______________ APPROVED AS TO FORM: MANAGER APPROVAL ___________________________ John Ely, County Attorney _________________________________ Jon Peacock, County Manager OPEN SPACE & TRAILS ___________________________ Gary Tennenbaum, Director Ordinance ______-2018 NOTICE TO TITLE COMPANY: This Deed of Conservation Easement in gross requires a one-hundred dollar ($100.00) fee be paid to Aspen Valley Land Trust or its successor organization by purchaser, transferee or recipient upon any transfer or purchase of this Property, pursuant to Section 16. FIRST AMENDED AND RESTATED DEED OF CONSERVATION EASEMENT IN GROSS Deadwood Parcel – Pitkin County THIS FIRST AMENDED AND RESTATED DEED OF CONSERVATION EASEMENT IN GROSS (“Easement”) is granted this ___ day of _________ 2018 by Deadwood Ranch I, LLC, a Florida limited liability company (“Grantor”), to and for the benefit of ASPEN VALLEY LAND TRUST, a Colorado nonprofit corporation having offices at 320 Main Street, Suite 204, Carbondale, Colorado 81623 (“AVLT”), and the BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, Colorado, a body corporate and politic, having its address at 530 E. Main St., Ste. 301, Aspen, Colorado 81611 (“Pitkin County”). AVLT and Pitkin County are collectively referred to herein as “Co-Grantees” or individually as “Co-Grantee.” Grantor and Co-Grantees may be collectively referred to as the “Parties” and individually as a “Party.” The following exhibits are attached hereto: Exhibit A: Property Legal Description Exhibit B: Survey of Property and Activity Envelope Legal Descriptions Exhibit C: Water Rights RECITALS WHEREAS, Grantor is the sole owner in fee simple of 379.481 acres, more or less, of real property known as the Deadwood Parcel (hereafter, the “Deadwood Parcel”), located at 740 Swearingen Way, Basalt, County of Pitkin, State of Colorado, more particularly described in Exhibit A, together with certain Water Rights described in Exhibit C, attached hereto and made a part hereof (the “Property”). The term “Property” shall hereinafter be defined as the land and water rights combined, and the term “Water Rights” shall refer to the water rights alone, as described in Section7.3.J and Exhibit C, attached hereto and incorporated herein by reference; Return to: Aspen Valley Land Trust 320 Main Street, Suite 204 Carbondale, CO 81623 970-963-8440 WHEREAS, Grantor’s predecessor donated a conservation easement in gross to CoGrantees by grant of that certain Deed of Conservation Easement recorded in Pitkin County on March 29, 2011 at Reception No. 578749 (“Original Easement”), over and across all of the fee simple interest in approximately 335 acres of the Property described as the “Deadwood I Parcel” in Exhibit A, together with certain water rights associated with or appurtenant thereto; WHEREAS, the Original Easement did not encumber the entire Deadwood Parcel because (i) by its terms the Original Easement did not encumber certain areas within Deadwood I Parcel that were designated as “Agricultural Activities Facilities Envelope (Exclusion)”, “Historical Resources Activity Envelope (Exclusion)”, and “Activity Envelope (Exclusion)” (collectively, the “Formerly Excluded Activity Areas”), and (ii) the Original Easement did not cover any of the fee simple interest in approximately 35.339 acres of the Property described as the “Deadwood II Parcel” in Exhibit A, together with certain water rights associated with or appurtenant thereto; WHEREAS, Pursuant to BOCC Resolution 147-2016 recorded in the office of the Clerk and Recorder for Pitkin County, Colorado on January 5, 2017 under Reception No. 635224 (“Resolution 147-2016”), Pitkin County approved, among other things, the merger of the Deadwood II Parcel with the Deadwood I Parcel, the re-zoning of the Deadwood II Parcel and including the Deadwood II Parcel within this Easement; WHEREAS, pursuant to that certain Special Warranty Deed recorded in the office of the Clerk and Recorder for Pitkin County, Colorado on March 15, 2017 under Reception No.636819, the Deadwood II Parcel was conveyed to Grantor thereby making Grantor the owner of both the Deadwood I Parcel and the Deadwood II Parcel; WHEREAS, the Deadwood II Parcel merged with the Deadwood I Parcel pursuant to that certain Deadwood Parcel Subdivision Exemption Lot Line Adjustment Plat recorded in the office of the Clerk and Recorder for Pitkin County, Colorado on ___________ 2017 in Book _____ at Page _______ under Reception No._____________________; WHEREAS, Grantor has agreed to donate and grant to Co-Grantees a conservation easement in gross encumbering the entire Deadwood Parcel, including the Deadwood II Parcel, the Formerly Excluded Activity Areas and to grant and encumber an additional 8.863 acres of real property owned by Grantor within the Deadwood I Parcel and described in Exhibit A and Exhibit B as “Activity Envelope 1”, “Activity Envelope 2”, and “Activity Envelope 3” together with Water Rights associated with or appurtenant to the Property, which Water Rights are collectively described in Exhibit C herein; WHEREAS, Grantor and Co-Grantees have agreed to move and reconfigure the Approved Road Activity Envelope and Formerly Excluded Activity Areas shown on Exhibit B of the Original Easement to avoid the irrigated meadows and further protect the Conservation Values of the Deadwood Parcel; WHEREAS, this Easement amends, supersedes, replaces and restates the Original Easement without interrupting the perpetual duration of the Original Easement or the property right which vested in Co-Grantees upon the recording of the Original Easement; 2 WHEREAS, the Property possesses natural, scenic, open space (including agricultural), and wildlife values (collectively, “Conservation Values”) of importance to Grantor, the CoGrantees, the people of Pitkin County, and the people of the State of Colorado that are worthy of preservation; WHEREAS, the Conservation Values of the Property are more particularly described in the Baseline Documentation, described in Section 4 herein, the protection of which is recognized under §170(h)(4)(A) of the Internal Revenue Code of 1986, as amended (“IRC”), and §1.170A14(d) of the Treasury Regulations as valid conservation purposes for which a qualified conservation contribution may be donated. A summary of the Conservation Values follows:  Relatively Natural Habitat [§ 1.170A-14(d)(3)]. For the most part, the native plant communities on the Property are in fair to excellent condition. The dominant plant communities on the Property can be described as follows: (1) mountain big sagebrush shrublands; (2) Gambel oak dominated mixed montane shrubland; (3) non-native pasture grass hayfields; (4) quaking aspen / thinleaf alder - willow species riparian woodland Sedge wetland complex. The riparian-wetland complex and hayfields occupy the valley floor while the sagebrush and montane shrublands are primarily located on the southwesterly- and northeasterly-facing slopes above. In many areas of the Property the shrubland associations consist of intergrades between adjacent types with dominance or co-dominance of Gambel oak or mountain big sagebrush. There are plants and plant communities with special conservation status known or likely to occur on the Property. The Property is home to sagebrush shrubland associations designated as rare and/or imperiled by the Colorado Natural Heritage Program (“CNHP”). Protecting sagebrush shrublands in Colorado has been identified by a number of governmental and non-governmental agencies as a conservation priority. Harrington’s beardtongue (Penstemon harringtonii) may occur on the Property. This rare plant is known to occur in similar habitat nearby and within the Crown Potential Conservation Area (“PCA”), as designated by CNHP. This globally vulnerable member of the Penstemon genus is endemic to a six county area in Colorado. Gambel oak - alderleaf mountain mahogany / elk sedge mixed montane shrubland associations on the Property are threatened throughout their global range and vulnerable to extirpation in Colorado. The interspersion of the varied associations on the Property provides habitat for a relatively rich assemblage of wildlife species. The hayfields on the Property provide valuable habitat for grassland birds such as mountain bluebirds, savannah and vesper sparrows, and western kingbirds and small mammals such as long-tailed and montane voles, northern pocket gophers. The Property is within the home range of a pair of golden eagles. Other raptors such as harriers and red-tailed hawks are commonly observed hunting the abundant prey in the shrublands and hay fields. Both mule deer and elk occur on the Property. Portions of the Property lie within active mule deer (Odocoileus hemionus) and Rocky Mountain elk (Cervus canadensis nelsoni) winter range as well as mule deer summer range. Bobcats, coyotes, long- and short-tailed weasels, mountain lions, and red fox all occur on the Property. The Property lies within an important black bear fall foraging area. It also provides habitat to a number of bat species (including rare Townsend’s big- 3 eared bats) and four species of owl. Dry Creek runs through the Property for approximately 0.8 miles.  Open Space [§ 1.170A-14(d)(4)]. The Property qualifies as open space because it will be preserved for the scenic enjoyment of the general public and is pursuant to a clearly delineated governmental conservation policy. Conservation of the Property will further yield a significant public benefit. o Scenic Enjoyment. The Property lies within a mapped Scenic View Protection Area designated by Pitkin County, and adds to the scenic character of the local rural landscape in which it lies, and provides a degree of openness, contrast and variety to the overall landscape. A portion of the Property is visually accessible to the general public from West Sopris Creek Road, which is open to and actively used by residents of Pitkin County and the State of Colorado, and from public lands and trails on and surrounding Mount Sopris, a popular recreational destination. The terms of the Easement do not permit a degree of intrusion or future development on the Property that would interfere with the essential scenic quality of the land. o Agriculture. The Property is currently used for agricultural purposes including irrigated hay production and pasture for livestock. This use is compatible with other land use in the vicinity, as adjacent properties are also used for agricultural production. Hay is harvested from a portion of the approximately 95 acres of irrigated fields (as shown on Exhibit C) on the Property annually. The Property has considerable senior water rights dating back to the origins of the Middle Ranch and commencement of its agricultural uses in the 1880s, described in Exhibit C. The Property has been continuously operated as a ranch since it was homesteaded in 1885, and for most of that time has been used as part of a larger cattle ranching operation by family ranchers. o Governmental Policies. Conservation of the Property is promoted by the following local and state governmental policies. The laws and regulations of the State of Colorado and the United States also support conservation of the Property relative to its scenic, wildlife habitat, agricultural heritage, educational and natural area values:  Local Policies: Conservation of the Property helps to maintain a valuable open space resource. Pitkin County addresses the need for protecting open space in its Home Rule Charter, which contains the Open Space and Trails Program’s enabling legislation under Article XIII. Criteria for open space acquisitions include: (1) Areas within public scenic viewplanes; (2) Incorporating or protecting significant wildlife habitat; (3) Protecting riparian or wetlands areas; (4) protecting other public lands from the impacts of development. In addition, Pitkin County’s Down Valley Comprehensive Plan (DVCP) recommends inclusion of the Ranch within its Agricultural/Wildlife Reserve (AWR) District. 4 Conservation of the Property is also promoted by the Emma Area 2008 Master Plan, adopted January 13, 2009 by the Pitkin County Planning Commission, which places this Property within a mapped Scenic View Protection Area, as designated by Pitkin County Land Use Code, and advocates for the following issues, which are achieved in part through preservation of the Property: 1) Preservation of rural character;2) Preservation of open lands;3) Preservation of agricultural uses;4) Preservation of privacy, peace and quiet; and 5) Managing growth and development.  Statewide Policies: The State of Colorado has recognized the importance of private efforts toward the preservation of natural systems in the State by the enactment of Colorado Revised Statutes (“C.R.S.”) §§38-30.5-101 et seq. In addition, C.R.S. §33-1-101 provides in relevant part that “it is the policy of the state of Colorado that the wildlife and their environment are to be protected, preserved, enhanced, and managed for the use, benefit, and enjoyment of the people of this state and its visitors.” C.R.S. §38-30.5-102 provides for the creation of conservation easements to maintain land “in a natural, scenic, or open condition, or for wildlife habitat, or for agricultural, horticultural, wetlands, recreational, forest or other use or condition consistent with the protection of open land . . .” The Colorado Department of Agriculture Statutes, C.R.S. §§35-1-101 et seq., provide in part that “it is the declared policy of the State of Colorado to conserve, protect, and encourage the development and improvement of its agricultural land for the production of food and other agricultural products.” The Property contains significant native sagebrush habitat, and as such its conservation is further promoted by the Colorado Division of Wildlife’s Wildlife Conservation Section Briefing Paper, dated March 3, 2005, “Needs for Habitat Protection of Colorado’s Sagebrush Communities.” o Significant Public Benefit. The Property is a unique part of a rural, agricultural, mountainous area of Pitkin County, where there is a trend toward residential development in the near vicinity. The Town of Basalt is approximately five miles by road from the Property, and the City of Aspen approximately 23 miles to the east. There is a strong likelihood that development of the Property would contribute to degradation of the scenic and natural character of the area. Preservation of the Property will continue to provide an opportunity for the general public to appreciate its scenic values, and will increase the amount of conserved lands both in the Emma area, currently identified by the Co-Grantees as a high priority for protection, and within The Crown Potential Conservation Area (“PCA”), designated for its high conservation priority by the Colorado Natural Heritage Program. The Property lies within The Crown PCA and borders Bureau of Land Management land to the east. 5 It lies approximately one mile from existing conservation easements on the 280acre Sopris Mountain Ranch, the 56-acre Flatbush Farm, and the 560-acre Crown Mountain Ranch, thereby adding to the habitat and natural area connectivity of the area. WHEREAS, the Parties acknowledge that this Easement is intended to satisfy in part the requirement of the Pitkin County Land Use Code for the creation by Grantor of conserved open space for the Middle Ranch LLC Conservation Development PUD, pursuant to the Resolution 059-2010 of the Board of County Commissioners of Pitkin County, Colorado approving the Middle Ranch LLC Conservation Development (CD-PUD) Plan, Special Review, GMQS Exemption and Activity Envelope, recorded on June 11, 2010, in Pitkin County at Reception # 570412, as such approvals may be amended from time to time by approval of Pitkin County, including Resolution 147-2016, BOCC Ordinance 29-2016 recorded in the office of the Clerk and Recorder for Pitkin County, Colorado on January 5, 2017 under Reception No. 635223 (hereafter, collectively, the “Land Use Approvals”). The Parties also acknowledge that the Land Use Approvals permit development activity envelopes on the Deadwood Parcel (“Activity Envelopes”), as such are shown and described in Exhibit B hereof, all of which are by this First Amended and Restated Easement now encumbered by this Easement and included within the Property. Except as limited above, Grantor may use the land within the Activity Envelopes for any and all uses and activities permitted by the Land Use Approvals, local laws, codes, and regulations, provided that Grantor notifies Co-Grantees of the placement or relocation of any new structures within the Activity Envelopes so that Co-Grantees may update their records; WHEREAS, Grantor intends to convey to the Co-Grantees the right to preserve and protect the Conservation Values in perpetuity and the Co-Grantees agree by accepting this grant to honor the intentions of Grantor stated herein and to preserve and protect in perpetuity the Conservation Values for the benefit of this generation and the generations to come; WHEREAS, AVLT is a charitable organization as described in IRC §501(c)(3), and is a publicly-supported organization as described in IRC §170(b)(1)(A) whose primary purpose is to permanently preserve and protect the natural, scenic, agricultural, historical, and open space resources of the greater Roaring Fork and Colorado River Valleys, including the area in which the Property is located, and who is a “qualified organization” to do so within the meaning of IRC §170(h)(3), possessing the resources and commitment to protect and defend the conservation purposes of this grant and Conservation Values identified herein; WHEREAS, the Board of Directors of AVLT has duly authorized AVLT’s Executive Director or her designee to execute and accept conservation easements on behalf of AVLT; and the Board of County Commissioners of Pitkin County, Colorado is a body corporate and politic and is duly authorized to execute and accept the Easement. AGREEMENT 6 NOW, THEREFORE, in consideration of the matters above, the mutual covenants, terms, conditions and restrictions contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. GRANT Grantor hereby voluntarily and irrevocably grants and conveys to the Co-Grantees a perpetual Conservation Easement in gross (“Easement”), pursuant to C.R.S. §§38-30.5-101 et seq., through the terms mutually agreed to in this Easement, consisting of the rights and restrictions enumerated herein, over and across the Property, to hold said Easement unto the Co-Grantees and its successors and assigns forever. The Easement shall constitute a binding servitude upon the Property and shall be subject to prior reservations, easements, encumbrances and exceptions of record, except as otherwise set forth herein. 2. PURPOSES Pursuant to the terms of C.R.S. §§38-30.5-101 et seq., the purposes of the Easement are to assure that the Property will remain forever predominantly in its scenic, natural and open space condition, subject to the uses of the Property permitted hereunder, including but not limited to ongoing agricultural use and uses permitted under the Land Use Approvals, to protect and preserve the Conservation Values in perpetuity, to prevent any use of the Property that is inconsistent with the preservation and protection of the Conservation Values and, in the event of their degradation or destruction, to restore such Conservation Values. The primary purpose of this Easement is to first and foremost preserve, protect, and enhance where possible the natural wildlife habitat of the Property. Secondly, the purpose is to preserve and protect the agricultural and ranching potential and scenic open space of the Property. (This paragraph collectively defines the “Purposes.”) 3. INTENT The intent of the Parties is to permit all uses of the Property that are consistent with the Purposes of this Easement as determined jointly by the Co-Grantees in their sole discretion. Nothing in this Easement is intended to compel a specific use of the Property other than the preservation and protection of the Conservation Values, and it is the Parties’ intent that the terms of the Easement permit Grantor to achieve all of the entitlements set forth in the Land Use Approvals. 4. BASELINE DOCUMENTATION The Co-Grantees and Grantor acknowledge that a Baseline Documentation of the Conservation Values and relevant features of the Property has been prepared on October 4, 2010 and updated in 2015 by Colorado Wildlife Science LLC, a company familiar with conservation easements, the Property, and the environs, and is on file with the Parties. The Parties acknowledge and agree that by the execution of this Easement, they hereby approve, acknowledge, and accept the Baseline Documentation as an accurate representation of the condition of the Property at the time of this grant. The Parties agree that the Baseline Documentation is not intended to preclude 7 the use of other evidence to establish the present condition of the Property should a controversy arise. 5. RIGHTS OF THE CO-GRANTEES To fulfill the Purposes of this Easement, Grantor appoints AVLT as Lead Agency for this Easement. As such, AVLT shall be responsible for annual monitoring visits to the Property, maintenance of baseline information and stewardship files, and receiving Grantor notices and requests for approval under the Easement, which notices and requests shall be reviewed jointly by the Co-Grantees. This Easement shall be co-held by Pitkin County, and the roles and rights of each Co-Grantee in enforcing this Easement shall be described in Section 12 of this Easement. AVLT may reassign Pitkin County as Lead Agency upon mutual agreement of all Parties, and if at any time the Lead Agency is unable to perform its duties, it may temporarily assign those duties to the Co-Grantee upon notice to Grantor. Notwithstanding the forgoing, Grantor conveys the following additional rights to the Co-Grantees in support of the Purposes of this Easement: 5.1. The right to preserve and protect the Conservation Values in perpetuity; 5.2. The right of the Co-Grantees to enter upon the Property once annually at a reasonable time agreed to mutually by Grantor and the Co-Grantees, or after five days if Grantor fails to respond to advance notice from either of the Co-Grantees to Grantor, to inspect the Property thoroughly, to monitor Grantor’s compliance with, and otherwise enforce the terms of this Easement; provided that such entry shall not unreasonably interfere with Grantor’s use and quiet enjoyment of the Property, with the exception that no such notice shall be required and more than one annual visit shall be permitted in the event the Co-Grantees jointly and reasonably believe that immediate entry upon the Property is essential to prevent or mitigate a violation of the Easement; and provided, further, that such inspections shall be conducted primarily by Lead Agency, and that any inspections by Pitkin County shall be conducted only by staff members of Pitkin County’s Open Space and Trails department solely for the purpose of determining whether an Agricultural Covenant Violation (as defined in Section 7.3 below) has occurred. The CoGrantees and Grantor hereby agree that Lead Agency shall not be responsible for determining whether an Agricultural Covenant Violation has occurred, and Lead Agency shall not be responsible for enforcing any remedies if an Agricultural Covenant Violation has occurred. 5.3. The right, as an interest owner in the Property (as stipulated in Section 14.3 herein), to prevent or enjoin Grantor or third parties (whether or not invitees of Grantor) from conducting any activity on or use of the Property that is inconsistent with the Purposes of the Easement; and the right to require Grantor or third parties, as may be responsible, to restore such areas or features of the Property that are damaged by any inconsistent activity or use, subject to the qualifications of Section 13.5 herein; 8 5.4. Any other rights that the Parties may approve consistent with the Purposes of the Easement, including adding additional purposes or defining additional Conservation Values; and 5.5. The right to be recognized as an owner in the interest of the Property represented by this Easement (as stipulated in Section 14.3 herein), and therefore to receive notification from and join Grantor as a party to any leases, surface use agreements, damage agreements or rights-of-way that may be proposed, granted or required hereafter as a result of condemnation or eminent domain proceedings, or for the purpose of exploring for or extracting minerals on or below the Property. 6. RIGHTS OF GRANTOR Except as limited by this Easement, Grantor reserves to itself and to its personal representatives, heirs, successors, and assigns, all rights and obligations accruing from its ownership of the Property, including the right to engage in activities and uses of the Property not prohibited herein that are not inconsistent with the preservation and protection of the Conservation Values, pursuant to IRC §170(h)(3) and C.R.S. §38-30.5-102. The Parties stipulate that the Land Use Approvals are consistent with the preservation and protection of the Conservation Values. 7. PROHIBITED, PERMITTED AND REQUIRED USES The following uses and practices by Grantor, though not an exhaustive recital, are either prohibited or permitted by this Easement, or required to be conducted by this Easement; however, nothing in this Easement constitutes approval by any government or other permitting agency for building, construction, development or land use, and Grantor recognizes that certain uses or improvements described as consistent with or permitted by this Easement may require further permitting and approval from Pitkin County or other federal, state and local agencies. Certain indicated uses may require notice to or approval from the Co-Grantees, or both, according to Sections 10 and 11 herein, and Co-Grantees’ may approve additional uses not expressly described in this Easement upon Grantor’s request according to the same procedure, provided such uses are consistent with the Purposes of this Easement. Any future or proposed amendments to the Land Use Approvals or other separate agreements affecting the Property (as opposed to the Activity Envelopes) entered into subsequent to this grant must also be consistent and comply with the Purposes and terms of this Easement. 7.1. Development Rights. Grantor hereby grants to the Co-Grantees all development rights, including the construction, location, improvement, or replacement of any “improvements” (defined as buildings, structures, mobile homes or other physical, human-introduced development of the Property, including landscaping, fences, wells, roads, septic systems, utilities, etc.) associated with the Property in perpetuity for the limited purpose of ensuring that such development rights are forever terminated and extinguished as to Grantor, and may not be used on or transferred off of the Property by Grantor or the Co-Grantees or any other party; or used as a credit for density of development anywhere by any party, except for the particular development rights expressly 9 reserved by Grantor in Section 7.2 and 7.3 and also those rights set forth in the Land Use Approvals, and except for those Transferable Development Rights (“TDRs”) allocated to the Property by the Land Use Approvals and BOCC Ordinance 06-2010 recorded in the Pitkin County records at Reception No. 570415. Notwithstanding the above, Grantor also retains the right to further reduce or diminish existing development rights or Land Use Approvals on the Property in exchange for monetary or tax benefits, or additional TDRs, or any combination thereof with Pitkin County’s sole approval. 7.2. Buildings and Improvements. The construction, location, improvement, or replacement of any improvements (defined above) are prohibited on the Property, except for those in existence at the time of this grant, or permitted by either the Land Use Approvals or easements and rights-of-way in existence prior to this grant and as follows: A. Activity Envelopes. In addition to three pond/landscape envelopes, there are three primary activity envelopes that continue on the Property: Activity Envelope 1, consisting of 3.680 acres; Activity Envelope 2 consisting of 3.066 acres; and Activity Envelope 3 consisting of 2.117 acres. Collectively, the Activity Envelopes total 8.863 acres, and are legally described and shown on Exhibit B. Grantor may engage in all non-industrial uses then permitted by the Land Use Approvals, Pitkin County Regulations and all other applicable laws (as defined in Section 21.1 and referred to hereafter as “Applicable Laws”), including but not limited to landscaping, grading, and construction, and the right construct, locate, rebuild, remodel, relocate, maintain and enlarge structures and improvements as follows: a. Residences. Residential dwellings and associated Accessory Dwelling Units and/or Caretaker Dwelling Units, as then defined by Pitkin County are permitted inside the Activity Envelope as allowed or permitted by Pitkin County. b. Accessory Structures and Improvements. Agricultural and accessory structures (such as sheds, barns, greenhouses and garages) are permitted within the Activity Envelopes together with all improvements allowed or permitted by Pitkin County (including but not limited to utility lines, septic systems, fences, corrals, picnic areas, ponds, landscaping and driveways). B. Agricultural Buildings. In addition to any improvements within Activity Envelopes, Grantor has the right to construct and use up to four permanent run-in or loafing sheds for horses or livestock in the pasture areas outside of the Activity Envelopes. The combined footprint of all such sheds outside of the Activity Envelopes shall not exceed 1,200 square feet total. Such sheds shall be unenclosed (i.e., having a maximum of three walls), and shall not have excavated, raised or slab foundations. Additional portable sheds not to exceed 300 square feet each that comply with the standards above may be installed in the pastures outside the Activity Envelopes. Greenhouses may be constructed on the Property outside the Activity Envelopes subject to Co-Grantees’ approval. 10 C. Spoil Site. A Spoils Envelope, as shown on Exhibit B herein, may be used for construction staging and temporary storage of excavated and other road construction materials during the period of road or building construction, and shall be restored to as close to its prior condition as possible, or in accordance with a restoration plan approved by Pitkin County. D. Fencing. Grantor may replace, repair or improve existing fences on the Property and erect new fencing provided such new or replaced fencing is consistent with thencurrent Colorado Parks and Wildlife (“CPW”) guidelines for fencing in a wildlife migration area and any applicable county regulations, so as to permit the movement of wildlife across the Property. Any disturbance to the Property that results from such fence maintenance or construction shall be reseeded and restored to as close to its prior condition as possible, or in accordance with a restoration plan approved by Pitkin County. E. Roads, Bridges, Driveways and Trails. The existing access road on and to the Property may be maintained, graded, graveled and otherwise improved to the extent permitted by Pitkin County to access the Activity Envelopes in the approximate location shown on Exhibit B herein. In addition, Grantor may construct and maintain one additional access road or driveway from West Sopris Creek Road to the Activity Envelopes in a location and of a type and size approved by Pitkin County (shown on Exhibit B). Landscaping and planting of trees is permitted along these roadways or within any appurtenant road easements upon Co-Grantees’ determination that such landscaping does not disrupt scenic views of the Property from West Sopris Creek Road. Grantor may also construct water crossings across Dry Creek and Monique’s Gulch using bridges or culverts, or both, as necessary to permitted uses of the Property. The construction of or granting of easements or rights-of-way for additional roads, driveways or water crossings are allowed with approval of the Co-Grantees. Development of new trails for non-motorized recreational use and new trails or ranch roads for agricultural purposes is permitted only in locations approved by Co-Grantees. Improved recreational trails or courses for dirt bikes or ATVs are prohibited. F. Recreational Structures. Low-impact (as defined in Section 20.1) and temporary recreational structures, such as picnic tables, a gazebo without a permanent foundation, benches, tents, fire pits, and equestrian obstacles are permitted on the Property in locations and in a manner not damaging to the Conservation Values. G. Utilities, Energy Generation, and Other Technology. The installation of or granting of easements and rights-of-way for utility lines and pipelines, or both, across the Property is permitted as necessary to service the Activity Envelopes or connect to the grid, and for agricultural uses on the Property, or as may be otherwise approved by the Co-Grantees. In addition: 11 a. Water wells, pumps, and water storage tanks for domestic, agricultural or wildlife use of the Property or Activity Envelopes, or both, are permitted. b. Low-impact (defined in Section 20.1) utilities or technology that are not connected to the power grid (such as fence-mounted solar panels or low-profile wind turbines to power water pumps) may be located on the Property or attached to permitted agricultural structures. c. Grantor may locate one wind power generator for use on the Property in a location and of a type approved by Pitkin County. Additional wind, solar, and micro-hydro powered electric generators or other energy-generating structures or technologies that are connected to the power grid or have more than low impact to the Property, as defined in Section 20.1, require approval of Co-Grantees. Grantor shall promptly reseed and restore any surface impacts that result from the installation or maintenance of any utilities or infrastructure on the Property to as close to the Property’s original condition as possible as set forth in the Land Use Approvals. 7.3. Resource Management and Use. Grantor recognizes the importance of good resource management and stewardship to preserve and protect the Conservation Values. Accordingly, Grantor agrees not to alter the topography of the Property through placement or removal of soil, gravel, land fill, or other materials nor to impair the relatively natural habitat for native plants, wildlife, or similar ecosystems within and upon the Property, except: (1) as necessary in emergencies, including for fire control and prevention; (2) as approved by the Co-Grantees and any required permitting agencies for habitat enhancement or restoration purposes; (3) as specifically permitted for improvements described in Section 7.2 above; (4) as necessary for burial of livestock and pets in accordance with applicable regulations; and (5) as necessary for the uses described below: A. Agriculture. Grantor retains the right and accepts the obligation to conduct agricultural operations on the Property, and the right to lease lands with appurtenant Water Rights for agriculture in a manner consistent with sound farming and range management practices so as not to cause significant soil erosion or low soil quality as then-determined by the Natural Resource Conservation Service or its successor (“NRCS”), or other then-appropriate entities. Agricultural operations may be conducted by Grantor itself or by one or more lessees or operators who use lands within the Property for agricultural operations. Permitted agricultural operations (“Permitted Agricultural Operations”) include, but are not limited to grazing and raising of livestock and horses, maintenance and irrigation of pasturelands, cultivation of land and raising of hay and crops, raising or farming of fish, chickens or fowl in a manner approved by all appropriate regulatory agencies, establishing greenhouse operations and all other agricultural, ranching and farming activities not inconsistent with protection of the long-term ecological viability of the land. 12 Commercial feed lots, defined as confined areas or facilities within which the Property is not grazed or cropped annually, and which are used and maintained for purposes of extended feeding and finishing of large numbers of livestock for commercial sale or production, are prohibited; though temporary enclosure and feeding of livestock within corrals for short periods in a manner consistent with the Purposes of this Easement is permitted. Other intensive agricultural uses of the Property that may change the character or quality of the land, such as commercial tree or sod farming, or commercial equestrian operations (except as approved by the Land Use Approvals) require approval of the Co-Grantees and may be required to follow a ranch management plan approved by the Co-Grantees, which approval may include restrictions on the extent and location of the proposed use in order to protect the overall Purposes of this Easement. Subject to seasonal, climatic and other conditions beyond Grantor’s control, and in accord with Section 12.2 below, Grantor shall use reasonable efforts to ensure that agricultural practices and operations are conducted on the Property. In this regard, Grantor, directly or through an operator or operators responsible to Grantor, shall engage in “Productive Agricultural Uses,” defined as a reasonable level of any of the Permitted Agricultural Operations described above considering and within the reasonable agricultural capacity of the Property and/or utilization of water rights appurtenant to the Property decreed for agricultural or irrigation purposes in a manner that does not jeopardize the legal existence of such rights and does not over overstretch the facilities of the Property. If, notwithstanding Grantor’s reasonable efforts to conduct agricultural operations, agricultural operations are suspended for a period exceeding six (6) months during the typical ranching/growing season, Co-Grantees shall have the option to exercise the rights set forth in Section 12.2 below. Grantor and Co-Grantees agree and acknowledge that changed climactic, economic, or other circumstances may result in the continuation of agricultural operations on the Property becoming impracticable or impractical for a period exceeding six (6) months. Accordingly, if the Lead Agency, in the course of conducting monitoring of the Property in accordance with Section 5, believes that Grantor is in violation of the covenant to conduct agricultural operations because the Lead Agency believes that agricultural operations have been suspended for a period exceeding six (6) months without the consent of Co-Grantees (an “Agricultural Covenant Violation”), the Lead Agency shall provide written notice to Grantor stating that the Lead Agency believes that an Agricultural Covenant Violation has occurred (“Notice of Agricultural Covenant Violation”). Grantor shall have a period of six (6) months after receipt of the Notice of Agricultural Violation to respond to and/or cure the Agricultural Covenant Violation by demonstrating to Co-Grantees reasonable satisfaction that either (i) no Agricultural Covenant Violation has occurred (e.g., because agricultural operations have not been suspended for a period exceeding six (6) months); or (ii) that agricultural operations, if they were suspended for a period exceeding six (6) months, have resumed. If Grantor cures the Agricultural Covenant Violation, the Co-Grantees shall send notice to Grantor withdrawing the Notice of 13 Agricultural Covenant Violation. If Grantor fails to cure the Agricultural Covenant Violation within six (6) months after receipt of a Notice of Agricultural Covenant Violation, Grantor may request a suspension of agricultural operations for a period of time, not to exceed two (2) calendar years, in a written notice to Co-Grantees (a “Request for Extended Suspension of Agricultural Operations”), which shall be provided to Co-Grantees in the manner set forth below. The Request for Extended Suspension of Agricultural Operations shall describe with reasonable specificity the circumstances that Grantor believes necessitate an extended suspension of agricultural operations. In response to a Request for Extended Suspension of Agricultural Operations, Co-Grantees may at the sole discretion of Co-Grantees, agree to a suspension of agricultural operations or, in the alternative, have the option to exercise the rights set forth in Section 12.2 below. The Co-Grantees shall not unreasonably withhold such consent. Upon expiration of any approved period during which agricultural operations have been suspended, Grantor may make an additional Request for Extended Suspension of Agricultural Operations upon the same terms defined herein. During any such time as agricultural operations are suspended, at the request of the Co-Grantees, Grantor shall take reasonable measures necessary to maintain the existing ground cover so as to reasonably minimize the spread of noxious weeds. Notwithstanding the foregoing, if agricultural operations are suspended Grantor agrees to use reasonable efforts to cause agricultural operations to resume as promptly as reasonably possible. B. Off-Road Vehicle Use. Grantor’s private use of off-road vehicles is permitted as necessary for property maintenance, agriculture and range management in a manner that does not result in erosion of or significant compaction to the Property’s soils, harassment of wildlife, or damage to the natural vegetation or sensitive ecosystems or of the Property. Commercial and private recreational or public use of off-road vehicles is prohibited on the Property; C. Hunting and Fishing. Hunting, fishing and the leasing of hunting rights on the Property may be permitted or prohibited at Grantor’s discretion and according to Colorado Division of Wildlife and other applicable federal, state and local laws and regulations; D. Harassment of Wildlife: Harassment of wildlife on the Property by any means is prohibited, including as a result of failure to control or restrain dogs; E. Trash. Grantor shall not accumulate or dispose of trash, garbage, or other hazardous or unsightly refuse on the Property, except for non-toxic compostable matter produced or used on the Property; F. Forest and Vegetation Management. Selective cutting, thinning or burning (see forestry definitions in Section 20.1) of trees and native vegetation is permitted on the Property to control insects, fire or fire danger and disease; to prevent personal injury 14 and property damage; for domestic and agricultural uses on the Property such as firewood collection and construction of permitted structures or fences; or to otherwise maintain the character and health of the wildlife habitat or ecosystem. Replacement of trees and/or reforestation with native vegetation is permitted. The Co-Grantees’ approval is required for clear cutting of trees or for commercial timber harvesting, which activities shall be guided by a forest management plan prepared by a qualified expert satisfactory to the Co-Grantees; G. Weed Control. Grantor agrees to control noxious weeds and invasive plant species on the Property in accordance with applicable federal, state and local laws and regulations, and shall not intentionally introduce noxious weeds or other invasive species to the Property; H. Minerals. Surface mining is prohibited on the Property. Because, at the time of granting the Easement, Grantor owns only a portion of the mineral rights associated with the Property, a mineral remoteness letter, finding that the likelihood of surface mining on the Property is so remote as to be negligible, was prepared by Rare Earth Science LLC on July 1, 2010. Grantor shall not lease, sever or separate Grantor’s portion of mineral rights from the Property, nor explore for, develop, mine or otherwise extract any minerals (which may include, but are not limited to, coal, peat, sand, gravel, rock, soil, geo-thermal resources, oil, oil shale, natural gas or other hydrocarbons) from on or below the surface of the Property, except as required by third party owners or partial-interest holders of mineral rights associated with the Property. Grantor may lease to a third party the right to explore for and extract minerals from below the surface of the Property only in a manner that is temporary and reclaimable and otherwise consistent with the meaning, provisions, and terms of IRC §170(h) and §1.170A-14(g) of the Treasury Regulations, and may enter into surface use agreements, non-surface use agreements, damage agreements and other related agreements (collectively hereafter “surface use agreements”) necessary to honor third party rights to mineral development, and to control resulting impacts to and restoration of the surface of the Property. Any oil and gas leases or surface use agreements required and entered into by Grantor shall be consistent with the following terms: a. Future Oil and Gas Agreements. Grantor shall incorporate this Easement by reference and summarize the Conservation Values in any and all future oil and gas leases and surface use agreements affecting the Property to which Grantor is required to participate, which leases and agreements shall be subordinate to this Easement to the degree legally possible. Pursuant to Section 5.5 herein, the CoGrantees shall be noticed and have the same legal rights as Grantor to influence and control impacts to the surface of the Property from mineral development by third party owners or lessors of the mineral rights associated with the Property, but shall claim no rights to proceeds or royalties from such mineral development on the Property. The Co-Grantees’ rights shall include, but not be limited to, the right to 15 take whatever legal action the Co-Grantees deem necessary in order to respond to proposals to develop oil, gas, and other minerals from beneath the Property, including bringing judicial or administrative actions. Grantor retains sole execution authority of any required leases and agreements, and shall ensure that the surface use agreements require that the impacted site shall be recontoured, revegetated, and restored. b. Current Oil and Gas Leases. There are no current or active oil and gas or other mineral leases on or affecting the Property at this time. I. Water Resources. Grantor shall not manipulate, divert, dam, pollute, drain, dredge, or otherwise alter Dry Creek or other naturally-occurring streams, springs, lakes, ponds, designated wetlands or other surface or subsurface water features on the Property in a manner that degrades or destabilizes their natural banks or shorelines; except that Grantor may take appropriate measures to restore Dry Creek, or to conduct wetlands expansion, develop ponds within naturally-occurring drainages and along historic irrigation ditches, augmentation or banking, or both, as such activities may be approved by Pitkin County or other required permitting agencies. The installation, maintenance, improvement and replacement of irrigation ditches, pipelines, structures and related equipment, and/or of stock ponds or water features for enhancement of wildlife habitat or agricultural use of the Property, or both, is permitted in compliance with all applicable regulations. Installation of ponds or water features for other purposes must be approved by Pitkin County. Soil, sand, rock and gravel produced during the excavation or construction of permitted ditches or ponds may be used or relocated on the Property or in the Activity Envelopes in a manner that does not damage the Conservation Values; J. Water Rights. Pursuant to Colorado Revised Statutes §38-30.5 -102, the Parties agree that it is reasonable that all water rights beneficially used on the Property for farming, ranching and conservation purposes, as described in Exhibit C, excluding well rights and those water rights currently decreed or decreed or developed in the future for residential uses on the Property or for use within the Activity Envelopes, are encumbered by this Easement (“Water Rights”). Grantor shall retain and reserve the right to use any and all water and water rights beneficially used on the Property and all ditches, headgates, springs, reservoirs, water allotments, water shares and stock certificates, contracts, easements and rights of way associated therewith for use in present agricultural production and for all other decreed uses on the Property, alternative energy facilities as permitted in Section 7.2.F(c), or for other lawful uses sufficient to maintain the Conservation Values of the Property. Grantor shall retain and reserve the right to use the Water Rights and shall not transfer, lease, sell, abandon, or otherwise separate the Water Rights from title to the Property itself; provided that Grantor may, with Grantees’ approval, transfer, lease for short term, or loan, such portion of the Water Rights that Grantor demonstrates to Co-Grantees’ reasonable satisfaction are no longer necessary for present agricultural production on the Property 16 and that the Water Rights remaining on the Property are sufficient to maintain the Property's Conservation Values. Such approval will be given by Co-Grantees only upon demonstration of a lack of present and future need of a portion of the Water Rights for agricultural production and the use of a statutorily recognized short term lease, agricultural loan or use of a trust agreement with the Colorado Water Conservation Board or any other entity which may be authorized to hold such lease, loan, or trust to augment minimum stream flows in the Roaring Fork River basin rivers and streams. All of these vehicles or any other proposed loan or lease must be capable of ultimately restoring the Water Rights to use on the property. Co-Grantees will assist Grantor with such permitted water leases or loans upon the request of the Grantor. Restrictions on Use of Water Rights. The Water Rights may not: (1) be changed to or used for municipal, industrial, or commercial uses, provided that the Water Rights may be changed for uses on the Property for all permitted agricultural operations, including piscatorial; (2) be changed for use other than on the Property; (3) be sold or legally separated from the Property; except upon receipt of the Co-Grantees’ written determination that such changes are consistent with the Purposes and terms of this Easement. Provided items (1), (2) and (3) referenced above are adhered to, Grantor may further secure, protect, expand and modify Water Rights as needed; however only those Water Rights described in Exhibit C and the previous paragraph shall be restricted under the terms of this Section. Abandonment of Water Rights. If Grantor fails to maintain the historic use of the Water Rights in such a way as the Water Rights would be subject to a threat of abandonment by action or inaction, Grantor shall provide the Co-Grantees a copy of any written notice received from any state water official concerning the use, or possible abandonment, of the Water Rights. If the Co-Grantees determine that the Water Rights are subject to a threat of abandonment, the Co-Grantees shall give Grantor written notice of such threat. If, and only if, Grantor fails to take action to cure the threat of abandonment within 90 days of receiving such notice from the Co-Grantees or state water official, the Co-Grantees shall, in addition to any other remedies available to the Co-Grantees under this Easement or law, have the right, but not the obligation, to: (1) enter upon the Property and undertake actions reasonably necessary to continue the historical use of the Water Rights; (2) seek removal of the Water Rights from the decennial abandonment list; (3) seek to change the Water Rights to another use consistent with the terms of this Easement; and/or (4) sell, lease or otherwise convey all or part of such Water Rights to the Colorado Water Conservation Board or other then-qualified entity for the specific conservation purpose of protecting or enhancing instream flows or water levels in streams, rivers, lakes and/or reservoirs. Grantor agrees to cooperate in any manner necessary to accomplish the Co-Grantees’ election; Effect of Loss. No loss of Water Rights through injury or abandonment, or conversion of the Water Rights as set forth above, shall be considered a severance of the title to the Water Rights from the Property for federal or state tax or other purposes, or as basis for extinguishment of this Easement. 17 J. Uses Allowed Under a CD-PUD (Conservation Development-PUD). Uses and special review uses allowed under a CD-PUD as referenced in the 2006 Land Use Code, as amended, are permitted under this Easement at the sole discretion of Pitkin County, provided those uses are consistent with the terms or Purposes of this Easement, and have received any necessary permits. 7.4. Other Restricted Uses and Practices. A. Subdivision and Ownership. Grantor may not divide, subdivide or otherwise partition (including de facto subdivision) the Property into more than one parcel of land, or encumber by deed of trust less than the entirety of the Property. At all times the Property shall be owned and conveyed as a single parcel that shall be subject to the terms and conditions of this Easement. Ownership of the single parcel by an entity, trust, joint tenancy or tenancy in common is permitted; however, Grantor shall not undertake any legal proceeding to partition, condominiumize, subdivide or divide in any manner such undivided interests in the single parcel; B. Commercial and Industrial Activities. Grantor shall not conduct industrial activity or any more than de minimis commercial recreational activity on the Property pursuant to IRC §2031(c). Commercial activities may be permitted on the Property in a manner consistent with the Purposes and terms of this Easement, or as otherwise approved by the Co-Grantees. Without limiting the generality of the forgoing, boarding of horses is permitted on the Property; C. Recreation. Non-motorized recreational uses such as hiking, horseback riding, mountain biking, cross-country skiing, hunting, fishing and camping are permitted on the Property. All-terrain vehicles, motorbikes, and snowmobiles may be used for agricultural operations in accordance with Section 7.3.B, Off-Road Vehicle Use. 8. PUBLIC ACCESS By terms of this Easement, Grantor does not afford the public any more than visual access to any portion of the Property, except that Grantor may permit, in its sole discretion, additional public access to the Property on such terms and conditions as it deems appropriate, provided that such access is not inconsistent with the terms of this Easement. Grantor must provide indemnity to the Co-Grantees for any public access to and use of the Property. Public access as required by Pitkin County BOCC Resolution 17-2009 is deemed consistent with the Purposes of this Easement. 9. REPRESENTATIONS AND WARRANTIES Grantor represents and warrants that, to the best of its knowledge: 18 9.1. Except for fuels customarily used or transported in connection with agricultural and construction activities; no substance defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise or threatening to human health or the environment exists or has been used or released on the Property; 9.2. There are not now any underground storage tanks located on the Property, and no underground storage tanks have been removed from the Property in a manner not in compliance with applicable laws, regulations, and requirements; 9.3. Grantor and the Property are in compliance with all federal, state, and local laws, regulations, and requirements applicable to the Property and its use and there is no existing, pending or threatened litigation in any way affecting, involving, or relating to the Property; 9.4. Grantor has good and sufficient title to the Property and has lawful authority to grant and convey the Easement; that any parties holding mortgages or liens on the Property consent to the terms of this Easement as a perpetual encumbrance on the Property enforceable in perpetuity by the Co-Grantees; and that Grantor shall warrant and forever defend the title to the Easement against all and every person or persons lawfully claiming by, through or under Grantor, the whole or any part thereof, except for rights-of-way, easements, restrictions, covenants and mineral reservations of record. 10. NOTICE OF INTENTION TO UNDERTAKE CERTAIN PERMITTED ACTIONS The purpose of requiring Grantor to notify the Co-Grantees before undertaking certain activities or uses, as identified in Section 7 or elsewhere herein, is to afford the Co-Grantees an opportunity to update their records and, if approval is required pursuant to Section 11 below, to ensure that the activities or uses in question are not inconsistent with the terms of this Easement. Grantor shall also notice Co-Grantees and seek their approval, pursuant to Section 11 below, for proposed activities or uses when there is a question as to consistency with the preservation and protection of the Conservation Values. Whenever notice and the Co-Grantees’ approval are required, Grantor shall notify the Co-Grantees in writing not less than 60 days prior to the date Grantor intends to undertake the activity or use in question, unless this Easement provides otherwise, and describe the nature, scope, design, location, timetable, and any other material aspect of the proposed activity or use in sufficient detail to permit the Co-Grantees to make an informed judgment as to the activity or use’s consistency with the terms of this Easement and the preservation and protection of the Conservation Values. Advance notice shall not be required by Co-Grantees of the date that approved construction activities commence, since notice of such activities is deemed to have been given when Grantor applied for development approvals as set forth in the Land Use Approvals. 11. THE CO-GRANTEES’ APPROVAL Whenever this Easement requires that Grantor obtain the Co-Grantees’ approval for any activity or use of the Property, or if Grantor desires approval for any activity or use of the Property 19 not specifically addressed herein that is not clearly consistent with the Purposes of the Easement (as described in Section 2 herein), such approval shall be given in the Co-Grantee’s sole discretion according to the Co-Grantees’ determination that such activity or use of the Property is consistent with the Purposes of the Easement, the burden of proof for which lies with Grantor. Co-Grantees may withhold approval only if they jointly determine, in their sole discretion, that the action as proposed would be inconsistent with the Purposes or terms of this Easement. The Co-Grantees shall set forth their determination, including the reason(s) for such determination, in writing to Grantor within 30 days of receipt of Grantor’s written notice of and request for approval (as described in Section 10, above). Where a modification of the proposed use or activity by Grantor would render it consistent with the Purposes of the Easement, and therefore permissible, the CoGrantees may specify, in such written notice to Grantor, such modifications to render approval appropriate. 12. CO-GRANTEES’ REMEDIES: ENFORCEMENT The Co-Grantees shall have the right to prevent and correct or require correction of violations of the terms and Purposes of this Easement. Monitoring for and enforcement of potential violations of the Land Use Approvals or other agreements outside the terms of this Easement that may affect the Property now or in the future are the responsibility of Pitkin County or that entity that is a party to the respective agreement. If either Co-Grantee finds what it believes is a violation, or a threat of a violation of the terms of this Easement, it shall immediately notify the other Co-Grantee, and the Lead Agency shall notify Grantor of the nature of the alleged violation. Upon receipt of this notice, Grantor shall immediately discontinue any activity that could increase or expand the alleged violation and shall either: (1) restore the Property within 60 days as is best possible to its condition prior to the violation in accordance with a plan approved by the Co-Grantees, or if immediate restoration is not possible, Grantor shall submit such plan to the Co-Grantees within 60 days; or (2) provide a written explanation to the Co-Grantees of the reason why the alleged violation should be permitted. If the Co-Grantees are not satisfied with Grantor’s written explanation, the Parties agree to meet as soon as possible to resolve this difference. If a resolution of this difference cannot be achieved at the meeting, the Parties agree to attempt to resolve the dispute pursuant to Section 12.1 below. At any time, including if Grantor does not immediately discontinue any activity that could increase or expand the alleged violation while the Parties are attempting to resolve the alleged violation, or if the Co-Grantees jointly believe an ongoing, imminent, or threatened activity violates the Easement, the Co-Grantees may take immediate, appropriate legal action to stop the activity without prior notice to Grantor, without waiting for the period provided for cure to expire, and without waiting for the 60-day mediation period to expire. The Co-Grantees may act jointly or independently according to the following paragraph to bring an action at law or in equity, ex parte as necessary, in a court of jurisdiction to enforce the terms of this Easement and to enjoin by temporary or permanent injunction a violation, which may require restoration of the Property to the condition that existed prior to the violation. The Co-Grantees’ remedies described herein shall be in addition to all remedies now or hereafter existing at law or in equity, and shall include, without limitation, the right to recover damages for violation of the terms of this Easement or 20 injury to the Conservation Values including damages for the loss of scenic, aesthetic, or environmental values. Without limiting Grantor’s liability therefore, the Co-Grantees, in their sole discretion, may apply any damages recovered to the cost of undertaking any restorative, remedial, corrective action on the Property. Enforcement of the terms of this Easement shall be at the sole discretion of the CoGrantees, who may act jointly or independently, provided however that the other Co-Grantee shall be notified of any violation or enforcement action, so that Co-Grantee may elect, in its sole discretion, to participate in the enforcement action or not. The Lead Agency shall notify the Grantor of the violation and proceed with enforcement action, or in the event the Lead Agency decides not to initiate or pursue an enforcement action, the Co-Grantee may undertake such action at its sole discretion and expense. Any forbearance by one or both of the Co-Grantees to exercise their rights under this Easement in the event of any breach of any term of this Easement by Grantor shall not be deemed or construed to be a waiver by either Co-Grantee of such term or any subsequent breach of the same or any other term of this Easement or of any of the Co-Grantee’s rights under this Easement. The failure to act of one Co-Grantee shall not be evidence of compliance with the terms of the Easement. No delay or omission by the Co-Grantees in the exercise of any right or remedy upon any breach by Grantor shall impair such right or remedy or be construed as a waiver. The failure of the Co-Grantees to discover a violation or to take immediate legal action shall not bar the Co-Grantees from doing so in the future. All reasonable costs incurred by Co-Grantees in enforcing a violation of the terms of this Easement according to the process described above in this Section 12, including, without limitation, costs and expenses of pursuing legal action and related reasonable attorney’s fees in the event Grantor does not immediately cease an activity that could increase or expand an alleged violation while the Parties are attempting to resolve the alleged violation; in the event the CoGrantees jointly believe an ongoing, imminent, or threatened activity violates the Easement and take immediate, appropriate legal action; and in the event mediation fails or is refused by Grantor and the situation requires further action to resolve; and any costs of restoration necessitated by Grantor’s violation of the terms of this Easement, shall be borne by Grantor, unless (1) Grantor ultimately prevails in a judicial enforcement action, in which case each Party shall bear its own costs; or (2) unless a court finds that the Co-Grantees acted in bad faith in seeking enforcement thereof, in which case, the Co-Grantees shall pay Grantor’s court-awarded costs and attorney fees. 12.1. Mediation. If a dispute arises between the Parties concerning the consistency of any proposed use or activity with the terms of this Easement, and Grantor agrees not to proceed with the use or activity pending resolution of the dispute, either Party may refer the dispute to mediation by written request upon the other. Within 10 days of the receipt of such request, the Parties shall select a trained and impartial mediator with experience in easements and other land preservation tools. If the Parties are unable to agree on a mediator, then the Parties shall each select a mediator with experience in conservation easements and other land preservation tools, and those two mediators shall select a mediator who shall alone mediate the dispute. Mediation shall then proceed in accordance with the following guidelines: 21 A. Purpose. The purpose of the mediation is to: (1) promote discussion between the Parties; (2) assist the Parties to develop and exchange pertinent information concerning the issues in dispute; and (3) assist the Parties to develop proposals which will enable them to arrive at a mutually acceptable resolution of the controversy. The mediation is not intended to result in an express or de facto modification or amendment of the terms, conditions, or restrictions of this Easement; B. Participation. The mediator may meet with the Parties and their counsel jointly or ex parte. The Parties agree that they will participate in the mediation process in good faith and expeditiously, except in cases when the Co-Grantees believe that Conservation Values are continuing to be harmed during the mediation process, in which case the Co-Grantees can suspend their involvement in the mediation to remedy this threat of ongoing violation. Representatives of the Parties with settlement authority will attend mediation sessions as required by the mediator; C. Confidentiality. All information presented to the mediator shall be deemed confidential and shall be disclosed by the mediator only with the consent of the Parties or their respective counsel. The mediator shall not be subject to subpoena by any Party in any subsequent litigation; D. Time Period. Neither Party shall be obligated to continue the mediation process beyond a period of 60 days from the date of receipt of the initial request or if the mediator concludes that there is no reasonable likelihood that continuing mediation will result in a mutually agreeable resolution of the dispute. The Parties shall equally share and each bear 50% of the mediator’s fees. 12.2 Suspension of Agricultural Operations. In the event that an Agricultural Covenant Violation occurs and such Agricultural Covenant Violation is not cured by Grantor, as set forth in Section 7.3(A.) above, and a resolution acceptable to Grantor and Co-Grantees cannot be achieved at a meeting between the Parties as contemplated in Section 12 above, or pursuant to mediation conducted in accordance with Section 12.1 above, the CoGrantees shall have the following rights: A. Replacement of Grantor with a Qualified Operator. Should Grantor find that it cannot, or that it does not wish to, continue agricultural operations and must cease, or wishes to cease, agricultural operations, then Grantor shall in good faith promptly seek to identify and retain a “Qualified Operator” (as defined below) to maintain agricultural operations on the Property on terms acceptable to Grantor, in Grantor’s sole discretion, in accordance with the other terms and conditions of the Easement and Land Use Approvals. Grantor shall promptly use reasonable efforts, including, without limitation, advertising, requests for proposals, and consultation with Pitkin County and established nearby ranchers, and other similar organizations to obtain a Qualified Operator. For purposes of this section, a “Qualified Operator” is a farmer or rancher with knowledge, experience, and resources (including but not limited to financial resources and appropriate and sufficient insurance acceptable to Grantor) to conduct 22 agricultural operations on the Property. Should Grantor be unsuccessful in obtaining a Qualified Operator within a reasonable period – not to exceed six (6) months – Pitkin County shall have the right to seek and obtain a Qualified Operator subject to approval by Grantor and the conditions herein, in Grantor’s sole discretion. B. Lease with Qualified Operator. If it is necessary to retain a Qualified Operator as provided above, Grantor agrees to enter into an agriculture production lease (“Lease”) with the selected Qualified Operator, on terms reasonably acceptable to Grantor and consistent with the terms of the Easement and the Land Use Approvals, which Lease shall provide for the Qualified Operator to be allowed such use of the Property consisting of the land previously used for agricultural operations, permanent improvements belonging to the Property previously used for agricultural operations such as roads and fencing, and use of water and power resources, as may reasonably be required to conduct agricultural operations. Power resources used by the Qualified Operator will be paid by the Qualified Operator directly to the electric utility provider by way of an account opened by the Qualified Operator. In addition, the Lease shall provide for a the Qualified Operator to pay rent to Grantor in an amount that Grantor determines to be fair and reasonable consistent with then prevailing commercial practice in the Roaring Fork Valley, and which also represents a reasonable economic return to Grantor in light of the reasonably foreseeable impacts that such Lease would have on the Property and Grantor’s costs to maintain the Property (it being understood that Grantor shall not be required to approve or sign any Lease, even if the proposed rental is consistent with the then prevailing commercial practice in the Roaring Fork Valley, if Grantor determines that Grantor would not receive a reasonable economic return in light of the reasonably foreseeable impacts that such Lease would have on the Property and Grantor’s costs to maintain the Property). Any Lease must bind the Qualified Operator to comply with the terms of this Easement. Prior to executing any Lease, Grantor shall make a copy of the proposed execution version of the Lease available to Co-Grantees for their review and approval to ensure its consistency with the terms of this Easement, which approval shall be deemed given unless Co-Grantees provide to Grantor written notice of objection within ten (10) business days (and if objection is given, such notice shall identify the causes for any objection and shall specify the changes to the Lease that would be acceptable to Co-Grantees). Agricultural operations shall resume after approval (or deemed approval) of the Lease by Co-Grantees and execution of the Lease by Grantor and the Qualified Operator. 13. COSTS, LIABILITIES, TAXES, AND ENVIRONMENTAL COMPLIANCE 13.1. Costs, Legal Requirements and Liabilities. Grantor retains all responsibilities and obligations and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the Property, including the payment of property and other taxes related to the Property, and maintenance of liability insurance coverage. Grantor shall make best efforts to keep the Property free of any liens arising out of any work performed for, materials furnished to, or obligations incurred by Grantor. Nothing in this Easement shall be construed or interpreted as prohibiting Grantor from obtaining loans 23 secured by deeds of trust encumbering the Property, provided any such deeds of trust are subordinate to this Easement, and shall encumber the entire Property; 13.2. Control. Nothing in this Easement shall be construed as giving rise, in the absence of a judicial decree, to any right or ability of the Co-Grantees to exercise physical or managerial control over the day-to-day operations of the Property, or over any of Grantor’s activities on the Property, or otherwise to become an operator with respect to the Property within the meaning of The Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), and any Colorado state law counterpart; 13.3. Hold Harmless. Grantor shall hold harmless, indemnify and defend the CoGrantees and their members, directors, officers, employees, agents, and contractors and the heirs, personal representatives, successors, and assigns of each of them (collectively, the “Co-Grantee Parties”) from and against all liabilities, including, without limitation, court awarded third-party attorneys’ fees, arising from or in any way connected with: (1) injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Property, regardless of cause, unless due to the negligence or intentional act of any of the Co-Grantee Parties; (2) the violation or alleged violation of, or other failure to comply with, any state, federal, or local law, regulation, or requirement, including, without limitation, CERCLA, by any person other than any of the Co-Grantee Parties, in any way affecting, involving, or relating to the Property; (3) the presence or release of hazardous or toxic substances in, on, from, or under the Property at any time, of any substance now or hereafter defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or the environment, unless caused primarily by any of the Co-Grantee Parties; (4) payment of taxes imposed upon or incurred by the Property as a result of this Easement, including property taxes and the sale of income tax credits acquired as a result of this Easement; (5) tax benefits or consequences of any kind which result or do not result from entering into this Easement; and (6) the obligations, covenants, representations, and warranties described herein; 13.4. Waiver of Certain Defenses. Grantor waives the defenses of laches, estoppel and prescription with regard to the enforcement of all other terms of this Easement; and 13.5. Acts Beyond Grantor’s Control. Nothing contained in this Easement shall be construed to entitle the Co-Grantees to bring any action against Grantor for any injury to or change in the Property resulting from causes beyond Grantor’s control or from any prudent action taken by Grantor under emergency conditions to prevent, abate, or mitigate significant injury to the Property resulting from such causes. Grantor is not responsible for acts of third parties not authorized to access the Property, but shall be responsible for all third parties, including guests or invitees, authorized by Grantor to access the Property. The Co-Grantees retain the right to enforce against third parties for violations of the Easement or damage to the Property pursuant to Section 5.3 herein. 24 14. EXTINGUISHMENT AND CONDEMNATION 14.1. Extinguishment. The Parties agree that any changes in the economic viability of the uses permitted or prohibited by this Easement, or changes to neighboring land and its use shall not be deemed circumstances justifying the termination or extinguishment of the Easement. In addition, the inability of Grantor, or Grantor’s heirs, successors or assigns, to implement any or all of the uses permitted under this Easement shall not impair the validity of the Easement, or be considered grounds for termination or extinguishment of this Easement. If circumstances arise in the future that render the Purposes of this Easement impossible to accomplish, the Easement can only be terminated or extinguished, in whole or in part, by judicial proceedings in a court of competent jurisdiction after the court has explored all options for importing other Purposes for the Easement pursuant to the cy pres doctrine. Each Party shall promptly notify the other when it first learns of such circumstances. The amount of the proceeds to which the Co-Grantees shall be entitled, after the satisfaction of prior claims, from any sale, exchange, or involuntary conversion of all or any portion of the Property subsequent to such termination, shall be determined, unless otherwise provided by Colorado law at the time, in accordance with the Proceeds paragraph below, and such proceeds shall be used by the Co-Grantees in a manner consistent with the conservation Purposes of the original Easement contribution; 14.2. Condemnation. If all or any part of the Property is taken by exercise of the power of eminent domain or acquired by purchase in lieu of condemnation, whether by public, corporate, or other authority, so as to terminate the Easement in whole or in part, Grantor and the Co-Grantees shall act jointly to recover the full value of the interests in the Property subject to the taking or in-lieu purchase and all damages resulting therefrom. All expenses reasonably incurred by Grantor and the Co-Grantees in connection with the taking or inlieu purchase shall be paid out of the amount recovered. The Co-Grantees’ share of the balance of the amount recovered shall be determined by multiplying that balance by the percentage set forth in Proceeds paragraph below. Co-Grantees shall not object to or participate in any financial negotiations regarding payment of damages or compensation that may result from such condemnation proceedings. 14.3 Proceeds. Grantor and the Co-Grantees stipulate that as of the date of this Easement, they are each vested with a real property interest in the Property. The Parties further stipulate that the Co-Grantees’ interest in the Easement has a value of seventeen percent (17%) of the fair market value of the Property from this date forward, and such percentage interest shall remain constant in relation to any future fair market value of the Property. Such percentage interest shall be used only for determining the Co-Grantees’ proportion of proceeds from any payment of damages or action resulting from circumstances described in the Extinguishment and Condemnation paragraphs above. The Parties agree that the value of any improvements to the Property made by Grantor after the date of this Easement is reserved to Grantor. 25 15. ASSIGNMENT OF EASEMENT Either Co-Grantee may, upon mutual agreement of the Parties, elect to transfer and assign its rights and obligations under this Easement solely to the other Co-Grantee. Should the Parties not agree, or if otherwise necessary or appropriate, the Co-Grantees may jointly elect to transfer and assign this Easement to another qualified land conservation organization, provided that organization is: (1) willing and able to accept the transfer; (2) a qualified organization at the time of transfer under §170(h) of the Internal Revenue Code of 1986, as amended (or any successor provision then applicable), and its applicable regulations; (3) authorized to acquire and hold conservation easements under Colorado law; and (4) charged with a mission similar to that of AVLT and Pitkin County Open Space and Trails. The Parties hereby agree that joint assignment of the Easement, if necessary, shall be offered first to Colorado Cattleman’s Agricultural Land Trust, and secondly to Colorado Open Lands. If neither organization meets the above criteria at the time of assignment, the Co-Grantees shall consult with and attempt to assign the Easement to Grantor’s preferred assignee, but in the event the Parties are unable to agree, the Co-Grantees shall ultimately have the right to select and assign the Easement to an organization that meets the above criteria, and to notify Grantor of its selection prior to assignment. Furthermore, as a condition of any assignment under this paragraph, the Co-Grantees shall require the assignee to expressly agree, in writing, to carry out and uphold the Purposes and terms of the Easement and otherwise assume all of the obligations and liabilities of the Co-Grantees set forth herein or created hereby. After such transfer, the Co-Grantee(s) that has assigned its rights shall have no further obligation or liability under this Easement. Should the Co-Grantees be unable to assign the Easement according to this procedure, a court with competent jurisdiction shall assign the Easement. 16. SUBSEQUENT TRANSFERS OF PROPERTY At any time Grantor transfers the Property to a third party, including all subsequent transfers, that party shall pay a notice fee of $100.00 to AVLT, or then-Lead Agency, to cover administrative costs associated with the transfer, as well as to put the third party purchaser on notice of the terms of this Easement. The failure of Grantor to perform any act required by this paragraph shall not impair the validity of this Easement or limit its enforceability in any way. 17. NOTICES Any communication that any Party desires or is required to give to the others shall be in writing and served personally or sent by first class mail, postage prepaid, addressed as follows or to such other address as the Parties from time to time shall designate by written notice to the others: To Grantor: Deadwood Ranch I, LLC c/o Jerrold Parker 26451 Rookery Lake Dr. Bonita Beach, FL 34134 To AVLT (as Lead Agency): 320 Main Street, Suite 204 26 Carbondale, CO 81623 Phone: 970-963-8440 Fax: 970-963-8441 To Pitkin County: Pitkin County Board of County Commissioners c/o Pitkin County Open Space and Trails Director 530 E. Main Street, 3rd Floor Aspen, CO 81611 Phone: 970-920-5232 Fax: 970 920-5198 18. RECORDATION The Co-Grantees shall record this instrument in timely fashion in the official records of Pitkin County, Colorado and may re-record it at any time as may be required to preserve its rights in this Easement. 19. AMENDMENT If circumstances arise under which an amendment to this Easement would be appropriate to promote the Purposes of the Easement, Grantor and the Co-Grantees may jointly amend this Easement. However, the Co-Grantees are under no obligation to amend this Easement, and may decline any amendment in either agency’s sole discretion. Any amendment must be consistent with the Purposes of the Easement and may not affect the Easement’s perpetual duration. Any amendment must be in writing, signed by all the Parties, and recorded in the records of the Clerk and Recorder of the appropriate Colorado County. Corrections to correct factual mistakes or typographical or clerical errors may be made at the discretion of the Co-Grantees. No amendment shall be permitted that affects the status of AVLT as a qualified holder or as a tax-exempt nonprofit entity under any applicable laws, including C.R.S. §§38-30.5-101 et seq., or IRC §170(h), IRC 501(c)(3), Treasury Regulation §1.170A-14, or Treasury Regulation 1.501(c)(3)-1(c)(2)); or that will confer a private benefit to Grantor or any other individual or entity greater than the benefit to the general public, or that will result in private inurement to a Board member, staff or contract employee of AVLT (see IRS Reg. 1.501(c)(3)-1(c)(2)). 20. GENERAL PROVISIONS 20.1. Definitions. A. The terms "Grantor," “AVLT,” “Pitkin County,” and "Co-Grantees," wherever used herein, and any pronouns used in place of those terms, shall refer to, respectively, Grantor and its heirs, personal representatives, executors, administrators, successors and assigns, and the successors and assigns of the Aspen Valley Land Trust and Pitkin County, or both, respectively; 27 B. The terms “Easement,” “conservation easement,” “Deed of Conservation Easement,” and “Deed of Conservation Easement in gross” refer to the immediately vested interest in real property defined by Colorado Revised Statutes §§38-30.5-101 et seq., and this legal document, consisting of the rights and restrictions enumerated herein, by which said Easement is granted; C. The term “low impact” or “low-impact” refers to activities or improvements whose location, use and construction have negligible or no surface impact on the Property and do not negatively impact the scenic views from West Sopris Creek Road or the ecological Conservation Values; D. Forestry Terms. The term “clear cutting” refers to cutting or removal of a stand of trees in which essentially all or most of the trees have been removed in one operation. The term “selective cutting” refers to cutting that removes only a portion of trees in a stand, and “thinning” refers to a treatment made to reduce stand density of trees primarily to improve growth, enhance forest health, or recover potential mortality; 20.2. Controlling Law. The interpretation and performance of this Easement shall be governed by the laws of the State of Colorado; 20.3. Liberal Construction. This Easement shall be liberally construed in favor of the grant to effect the Purposes of the Easement and the policy and purpose of C.R.S. §3830.5-101 et seq. If any provision in this instrument is found to be ambiguous, an interpretation consistent with ensuring continuation of the purposes of the Easement and the preservation and protection of the Conservation Values that would render the provision valid shall be favored over any interpretation that would render it invalid. The common law rules of disfavoring restrictions on the use of real property and construing restrictions in favor of the free and unrestricted use of real property shall not apply to interpretations of this Easement or to disputes between the Parties concerning the meaning of particular provisions of this Easement; 20.4. Severability. If any provision of this Easement, or the application thereof to any person or circumstance, is found to be invalid, the remainder of the provisions of this Easement shall be deemed severable and remain in full force and effect; 20.5. Entire Agreement. This instrument, as it may be amended under Section 19, set forth the entire agreement between the Parties with respect to the Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Easement, all of which are merged herein. This Easement amends and restates the Original Easement in its entirety such that all of this Easement’s terms and conditions shall apply to the Easement, and upon its execution and recordation, this Easement shall supersede and replace the prior Easement in its entirety, which prior Easement will have no further force or effect; 28 20.6. No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Grantor’s title in any respect; 20.7. Joint and Several Obligation. The obligations imposed by this Easement upon multiple Grantors shall be joint and several. If the Property’s ownership, now or in the future, is by a single entity consisting of multiple parties including shareholders, partners, or members, that entity is required to notify its shareholders, partners, or members of the entity’s and their individual rights and responsibilities, including any monetary or other obligations set forth in this Easement. Grantor shall provide a copy of such notice at any time upon the Co-Grantees’ request; 20.8. Successors. The covenants, terms, conditions, and restrictions of this Easement shall be binding upon, and inure to the benefit of, the Parties hereto and Grantor’s respective personal representatives, heirs, successors, transferees, and assigns, and the CoGrantees’ successors, transferees, and assigns, and shall continue as a servitude running in perpetuity with the Property; 20.9. Termination of Rights and Obligations. A Party’s rights and obligations under this Easement terminate upon transfer of the Party’s interest in the Easement or the Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer; 20.10. Captions. The captions in this instrument have been inserted solely for convenience of reference and are not a part of this instrument and shall have no effect upon construction or interpretation if inconsistent with the underlying text; 20.11. Counterparts. The Parties may execute this instrument in two or more counterparts, which shall, in the aggregate, be signed by all the Parties; each counterpart shall be deemed an original instrument as against any Party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling; 20.12. Merger. Unless the Parties expressly state that they intend a merger of estates or interests to occur, no merger shall be deemed to have occurred hereunder or under any document executed in the future affecting this Easement; 20.13. Authority to Execute. Each party represents to the other that such party has full power and authority to execute and deliver this Deed of Conservation Easement, and perform its obligations under this Easement, that the individual executing this Easement on behalf of said party is fully empowered and authorized to do so, and that this Easement constitutes a valid and legally binding obligation of said party enforceable against said party in accordance with its terms. IN WITNESS WHEREOF, Grantor and Co-Grantees have executed this Deed of Conservation Easement as of the date first written above. GRANTOR: 29 DEADWOOD RANCH I, LLC a Florida limited liability company By:_________________________________________ Jerrold Parker, Manager STATE OF ____________ ) ) ss. COUNTY OF ____________) The foregoing instrument was acknowledged before me this _____ day of _________, 2018, by Jerrold Parker, as Manager of Deadwood Ranch I, LLC, a Florida limited liability company, as Grantor. WITNESS my hand and official seal. [SEAL] __________________________________________ Notary Public My commission expires: _______________ 30 ACCEPTED by CO-GRANTEES: ASPEN VALLEY LAND TRUST, a Colorado nonprofit corporation, By: ________________________________ Suzanne Stephens, Executive Director STATE OF COLORADO ) ) ss. COUNTY OF ____________) The foregoing instrument was acknowledged before me this ____ day of ___________, 2018, by Suzanne Stephens as Executive Director of ASPEN VALLEY LAND TRUST, a Colorado nonprofit corporation. WITNESS my hand and official seal. [SEAL] __________________________________________ Notary Public My commission expires: ________________ BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, Colorado, a body corporate and politic By: _________________________________________ Patti Clapper, Chair STATE OF COLORADO COUNTY OF PITKIN ) )ss. ) The foregoing document was acknowledged before me on this ____day of _______, 2018, by _______________________________, Chairman of the BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, Colorado, a body corporate and politic. WITNESS my hand and official seal. [SEAL] __________________________________________ Notary Public My commission expires: ________________ 31 EXHIBIT A: LEGAL DESCRIPTION OF PROPERTY 32 EXHIBIT B: SURVEY OF PROPERTY (page 1 of 33 EXHIBIT B: SURVEY OF PROPERTY (page 2 of CONSERVATION EASEMENT EXHIBIT ACTIVITY ENVELOPE 1 DEADWOOD RANCH SITUATED IN LOT 5I SECTION 27 OF TOWNSHIP 8 SOUTH, RANGE 87 WEST OF THE 6TH PM. COUNTY OF PITKIN, STATE OF COLORADO. SHEET 3 OF 7 N23 '52 '33 806 '23 '35 ACRES 179.07 SOUTHEAST CORNER OF SECTION 27 1? A USGLO BRASS CAP IN PLACE AN ACTIVITY ENVELOPE LOCATED WITHIN THE DEADWOOD RANCH PARCEL 1. BEING SITUATED IN LOT 5 OF SECTTON 27, TOWNSHIP 8 SOUTH, RANGE 87 WEST OF THE 6TH P.M., COUNTY OF PITKIN, STATE OF COLORADO. SAID ACTIVITY ENVELOPE BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SE CORNER OF SAID SECTION 27 (A FOUND USGLO BRASS THENCE 1570.20 FEET THE TRUE POINT OF BEGINNING: THENCE 160.00 THENCE 100.00 THENCE 103.72 THENCE 202.00 THENCE 60.00 THENCE 111.63 THENCE 208.30 THENCE 125.37 THENCE 125.58 THENCE 114.07 THENCE 179.07 THENCE 855'32'41 60.00 THENCE 88.00 THENCE 58.40 THENCE 70.00 FEET TO THE TRUE POINT OF BEGINNING. SAID PARCEL OF LAND CONTAINING 3.680 ACRES, MORE OR LESS. SOPRIS ENGINEERING - LLC CIVIL CONSULTANTS 502 MAIN STREET, SUITE A3 CARBONDALE, COLORADO B1623 970 794.0311 34 EXHIBIT B: SURVEY OF PROPERTY (page 3 of CONSERVATION EASEMENT EXHIBIT ACTIVITY ENVELOPE 2 DEADWOOD RANCH SITUATED IN TRACT 74, SECTION 27 OF TOWNSHIP 8 SOUTH, RANGE 87 WEST OF THE 6TH PM. COUNTY OF PITKIN, STATE OF COLORADO. SHEET 4 OF 7 76.18 5143846 5286 50459 21 110.33 75.33 82059 . . .1 37.07 3 0 N7 42 4 5071401343T 190.22 52550 45 15375595 ?5 6-92 30. 18 0523595705? 92155 44 011255.15 52.67 35.17 40.53 5533' 22 24.00 103.95 353147 1 8737 862'07?24?73 1 75 ?42 ?49 127.19 SCALE: 1" 200? 34.37 ?Tag-(355w 75.00 30.110.50 N51 57 0.117 71.94 575'25'11?w 75.95 19.51 N29'17'04"w 501111151137 CORNER OF 55011011 27 A 03010 BRASS CAP IN PLACE SOPRIS ENGINEERING - LLC CIVIL CONSU LTANTS 502 MAIN STREET. SUITE A3 CARBONDALE. COLORADO 81623 979 704,031; 7-46.0WG 35 EXHIBIT B: SURVEY OF PROPERTY (page 4 of CONSERVATION EASEIVIENT EXHIBIT ACTIVITY ENVELOPE 2 DEADWOOD RANCH SITUATED IN TRACT 74, SECTION 27 OF TOWNSHIP 8 SOUTH, RANGE 87 WEST OF THE 6TH P.IVI. COUNTY OF PITKEN, STATE OF COLORADO. SHEET 5 OF 7 AN ACTIVITY ENVELOPE LOCATED WITHIN THE DEADWOOD RANCH PARCEL 1. BEING SITUATED IN TRACT 74 OF SECTION 27. TOWNSHIP 8 SOUTH. RANGE 87 WEST OF THE 6TH P.M., COUNTY OF PITKIN, STATE OF COLORADO. SAID ACTIVITY ENVELOPE BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SE CORNER OF SAID SECTION 27 (A FOUND USGLO BRASS THENCE 2101.27 FEET THE TRUE POINT OF THENCE 19.81 THENCE 75.96 THENCE 71.94 THENCE 54.00 THENCE 30.00 THENCE 76.00 THENCE 114.00 THENCE 34.37 THENCE 127.19 THENCE 63.56 THENCE 261.02 THENCE 52.67 THENCE 190.22 THENCE 75.33 THENCE 76.18 THENCE 52.86 THENCE 110.33 THENCE 37.07 THENCE 74.11 FEET: THENCE 6.92 THENCE 30.18 THENCE 35.17 FEET: THENCE 31.46 FEET: THENCE 120.99 FEET ALONG THE ARC OF A CURVE TO THE RIGHT. HAVING A RADIUS 0F 43.89. A DELTA ANGLE OF 157'56'15", (CHORD BEARS 86.16 THENCE 40.53 THENCE 24.00 THENCE 103.96 THENCE 87.37 THENCE 100.55 152.73 THENCE 67.81 THENCE 110.50 FEET TO THE TRUE POINT OF BEGINNING. EXCLUDING 1032.8 LINEAL FEET OF ROAD BEING 16? IN WIDTH (0.379 SAID PARCEL OF LAND CONTAINING 3.445 ACRES. LESS ROAD FOR A TOTAL ACTIVITY ENVELOPE AREA OF 3.066 ACRES, MORE OR LESS. SOPRIS ENGINEERING - LLC CIVIL CONSULTANTS 502 MAIN STREET. SGETE A3 CARBONDALE. COLORADO 81623 970 70403? CONSERVA TIONHEASEMENTH 6* 7H16.DWG 36 EXHIBIT B: SURVEY OF PROPERTY (page 5 0f_) CONSERVATION EASEMENT EXHIBIT ACTIVITY ENVELOPE 3 DEADWOOD RANCH SITUATED IN TRACT 74, SECTION 27 OF TOWNSHIP 8 SOUTH, RANGE 87 WEST OF THE 6TH PM. COUNTY OF PITKIN, STATE OF COLORADO. SHEET 6 OF 7 00 60 08:313'4 120.88 SCALE: 1" 200' I SOUTHEAST CORNER OF SECTION 27 A USGLO BRASS CAP IN PLACE AN ACTIVITY ENVELOPE LOCATED WITHIN THE DEADWOOD RANCH PARCEL I. BEING SITUATED IN TRACT 74 OF SECTION 27, TOWNSHIP 8 SOUTH, RANGE 87 WEST OF THE 6TH P.M.. COUNTY OF PITKIN, STATE OF COLORADO. SAID ACTIVITY ENVELOPE BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SE CORNER OF SAID SECTION 27 (A FOUND USGLO BRASS THENCE 3697.44 FEET TO THE TRUE POINT OF BEGINNING: THENCE 154.18 FEET, THENCE 862'14?31?w 39.06 THENCE 270.02 THENCE 385.82 THENCE 55.00 THENCE 222.65 THENCE 121.60 FEET ALONG THE ARC OF A CURVE TO THE RIGHT, HAVING A RADIUS OF 322.00, A DELTA ANGLE OF (CHORD BEARS 120.58 FEET) TO THE TRUE POINT OF BEGINNING. SAID PARCEL OF LAND CONTAINING 2.117 ACRES. MORE OR LESS. SOPRIS ENGINEERING - LLC CIVIL CONSULTANTS 502 MAIN STREET. SUITE A3 CARBONDALE. COLORADO 81623 970 704 4,31 1 151344 VLTA CONSER VA TIONREASEMENTM 5? 745.01%; 37 EXHIBIT B: SURVEY OF PROPERTY (page 6 of CONSERVATION EASEMENT EXHIBIT SPOILS ENVELOPE DEADWOOD RANCH SITUATED IN TRACT 74 SECTION 27 OF TOWNSHIP 8 SOUTH, RANGE 87 WEST OF THE 6TH PM. COUNTY OF PITKIN, STATE OF COLORADO. SHEET 7 OF 7 111.00 77'41 (1:5'34'24" 128. 00 .75" In. . I . (33:82m3. N41 ff4=49?33?25? 5:533:35} j? 54 229? SCALE: 200' SOUTHEAST CORNER OF SECTION 27 A USGLO BRASS CAP IN PLACE AN ACTIVITY ENVELOPE LOCATED WITHIN THE DEADWOOD RANCH PARCEL 1. BEING SITUATED IN TRACT 74 OF SECTION 27, TOWNSHIP 8 SOUTH, RANGE 87 WEST OF THE 6TH P.M., COUNTY OF PITKIN, STATE OF COLORADO. SAID ACTIVITY ENVELOPE BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SE CORNER OF SAID SECTION 27 (A FOUND USGLO BRASS THENCE 3697.44 FEET TO THE TRUE POINT OF BEGINNING: THENCE 231.80 FEET ALONG THE ARC OF A CURVE TO THE LEFT, HAVING A RADIUS OF 258.00, A DELTA ANGLE OF 49'33'25?, (CHORD BEARS 224.64 THENCE 115.00 THENCE 157.00 THENCE 453.00 THENCE 225.00 THENCE 45.00 THENCE 128.00 THENCE 111.00 FEET: THENCE 20.2.3 FEET ALONG THE ARC OF A CURVE TO THE RIGHT, HAVING A RADIUS OF 208.00, A DELTA ANGLE OF 5'34'24?, (CHORD BEARS 20.22 THENCE 222.65 THENCE 121.60 FEET ALONG THE ARC OF A CURVE TO THE RIGHT, HAVING A RADIUS OF 322.00, A DELTA ANGLE OF (CHORD BEARS 120.88 TO THE TRUE SAID PARCEL OF LAND CONTAINING 4.544 ACRES, MORE OR LESS. SOPRIS ENGINEERING LLC CIVIL CONSULTANTS 502 MAIN STREET. SUITE A3 CARBONDALE. COLORADO 81623 975 70443311 7-16.DWG 38 EXHIBIT B: SURVEY OF PROPERTY (page 7 of [Add pages for Pond and Landscaping Envelopes] 39 EXHIBIT C Water Rights The “Water Rights” attached to the Property and encumbered by the Easement are all located in Pitkin County, Water District 38, Division 5, and consist of only that portion of the following rights now owned by Grantor, and specifically do not include the “excluded water rights” as described in Section 7.3.J: 1) 1.0 cfs, Highland No. 2 Ditch (which diverts from West Sopris Creek) for irrigation, Priority 180 decreed in CA 0132 with adjudication date of May 11, 1889, and appropriation date of June 8, 1887. 2) 1.0 cfs, Highland No. 2 Ditch, First Enlargement (which diverts from West Sopris Creek) for irrigation, Priority 191 decreed in CA 0132 with adjudication date of May 11, 1889, and appropriation date of June 5, 1888. 3) 1.61 cfs, Highland No. 2 Ditch, Second Enlargement (which diverts from West Sopris Creek) for irrigation and domestic use, Priority 580 decreed in CA 4033 with adjudication date of October 24, 1952, and appropriation date of June 1, 1948. 4) 0.7 cfs absolute, Swearingen Ditch (the source of which is Sopris Creek) for irrigation, Priority 136 ½ decreed in CA 0132 with adjudication date of May 11, 1889, and appropriation date of March 5, 1886. 5) 1.25 cfs absolute, Cerise Ditch No. 1 (the source of which is Dry Creek) for irrigation, Priority 519 decreed in CA 4033 with adjudication date of October 24, 1952, and appropriation date of July 17, 1947. 6) 1.75 cfs absolute, Cerise Ditch No. 2 (the source of which is Dry Creek) for irrigation, Priority 527 decreed in CA 4033 with adjudication date of October 24, 1952, and appropriation date of July 25, 1947. 7) 1.44 cfs absolute, Cerise Brothers No. 1 Ditch (the source of which is Sopris Creek) for irrigation, consisting of: a. 0.5 cfs Cerise Brothers No. 1 Ditch, Priority 271 decreed in CA 2846 with adjudication date of August 21, 1931, and appropriation date of July 1, 1919. b. 0.04 cfs Cerise Brothers No. 1 Ditch, Priority 414A decreed in CA 3082 with adjudication date of August 25, 1936, and appropriation date of May 1, 1922. c. 0.9 cfs Cerise Brothers No. 1 Ditch, Priority 271 decreed in CA 2846 (conditional) and made absolute in CA 3082 with adjudication date of August 21, 1931, and appropriation date of July 1, 1919. 8) 2.5 cfs absolute, Cerise Brothers No. 2 Ditch (the source of which is Sopris Creek) for irrigation, consisting of: a. 0.5 cfs Cerise Brothers No. 2 Ditch, Priority 272 decreed in CA 2846 with adjudication date of August 21, 1931, and appropriation date of July 1, 1913. b. 1.1 cfs Cerise Brothers No. 2 Ditch, Priority 414B decreed in CA 3082 with adjudication date of August 25, 1936, and appropriation date of May 1, 1922. c. 0.9 cfs Cerise Brothers No. 2 Ditch, Priority 272 decreed in CA 2846 (conditional) and made absolute in CA 3082 with adjudication date of August 21, 1931, and appropriation date of July 1, 1913. 40 AGENDA ITEM SUMMARY REGULAR MEETING DATE: February 14, 2018 AGENDA ITEM TITLE: ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, AUTHORIZING AN AGRICULTURAL LEASE OF THE EMMA OPEN SPACE SCHOOLHOUSE AND SOUTH LEASE AREAS BETWEEN THE BOARD OF COUNTY COMMISSIONERS AND TWO ROOTS FARM LLC STAFF RESPONSIBLE: Paul Holsinger OST Agriculture and Conservation Easement Administrator ISSUE STATEMENT: An agricultural lessee has been selected by the Open Space and Trails Department (OST) for the Schoolhouse and South Lease Areas of Emma Open Space. All County leases must be approved via Ordinance by the Pitkin County BOCC. BACKGROUND: Emma Open Space was purchased by Pitkin County June 22, 2000 and was encumbered by a conservation easement granted to Roaring Fork Conservancy on the same day at reception number 444464 (the “Easement”). The Emma Open Space Management Plan, adopted June 26, 2017, identifies three lease areas of the property for agricultural use (Attachment 1). As per OST Agricultural Lease Bid Process and Policy, updated by OST Board on September 21, 2017 (Attachment 2), the leasable areas of Emma Open Space properties were publicly advertised through a formal Request for Proposals (RFP), posted on the pitkinostprojects.com website, posted on the Rocky Mountain E-Service website (the Pitkin County procurement website), and through a direct email to individuals interested or affiliated with agriculture in the Valley. The opportunity was advertised on October 3, 2017 with a due date of November 13, 2017 for applications. A selection committee was created under the terms of the County Procurement Code to score the proposal based on the scoring criteria within the Agricultural Lease Bid Process and Policy. The committee was comprised of OST staff members Gary Tennenbaum, Ted O’Brien, and Bill Griggers. In addition to the selection committee, Derrick Wyle, Natural Resource Conservation Service, and Jeff Pieper, CSU Extension Agent, were included in the meeting for technical support. Three proposals were submitted for the lease areas. They are briefly described below; Proposed Name Summary of Proposal Term Rate Two Roots Request to lease the Schoolhouse and South Lease areas 10yrs $25/acre Farm, LLC for vegetable production and small animal husbandry. They are proposing installing drip irrigation, utilizing hoop houses and tunnels, wildlife fencing, and proposing a barn structure to store equipment and have cold storage with electricity and potable water. The plan 2/14/2018 AIS_ Emma OS South and Schoolhouse Leases Page 1 of 5 Jenny Aragon and Kelly St. John Martin & Co states they will operate as a transitional organic farm for three years and operate as a certified organic farm during the remainder of the lease. They also proposed allowing seasonal or, if possible, year-round housing on the property. Request to lease the Schoolhouse Lease Area for flower 20yrs $25/acre production and supply cut flowers for market. They are proposing installing drip irrigation, utilizing hoop houses and tunnels, wildlife fencing, and proposing a barn structure to store equipment and have cold storage with electricity and potable water. The plan is essentially an organic plan though not specifically stating they will pursue Organic Certification. Request to lease the Schoolhouse, South and North lease 5yrs $24/acre areas for a mixture of potato cultivation and hay production. They have proposed producing hay and grazing the South Lease, continuing to rotate hay and potato cultivation on the Schoolhouse Lease, and producing hay and grazing the North Lease with the right to cultivate potatoes, though they have no plans to do so at this time. Average Score Organization Name Criteria 1 Out of 65 Criteria 2 Out of 15 Criteria 3 Out of 5 Criteria 4 Out of 5 Criteria 5 Out of 10 Two Roots Farm LLC Jenny Aragon and Kelly St. John 62 15 4 5 10 42.3 5 3.6 5 10 Martin & Co. 54.3 TOTAL 96 65.9 15 5 5 10 89.3 The committee reviewed the priorities listed in the management plan, the lease bids, and agricultural lease policy to select the most appropriate lessee. The selection committee recommended Two Roots Farm obtain the lease for the Schoolhouse and South Lease Areas for 10 years at $25 / acre. The OST board agreed with the selection committee and recommended Two Roots Farm obtain the lease for the Schoolhouse and South Lease Areas on January 11, 2018. The OSTB recommended Two Roots Farm have the option to renew their lease, if in good standing and fulfilling its operations plan, for another ten (10) years after farming on the property for five (5) years to further incentivize investment in the property by the lessee. INFRASTRUCTURE NEEDS Two Roots Farm is requesting a structure onsite to allow them to grow and supply their product to the community. Many public comments received through the Emma Open Space Management 2/14/2018 AIS_ Emma OS South and Schoolhouse Leases Page 2 of 5 Plan process highlighted local agricultural, organic production, and young and beginning farmers. OST staff anticipated that infrastructure would be needed to fulfill this public desire and specifically addressed this in the management plan under section 4.2.2. At the selection committee meeting and site visit Jeff Pieper, CSU Agricultural Extension Agent, made the point that the Food Safety and Modernization Act (FSMA) will require producers at Two Roots Farm scale to comply with FSMA regulations starting in 2020. These provisions include safe and adequate sanitary water and buildings that “facilitate maintenance and sanitary operations”, i.e. washable surfaces and adequate drainage. The structures and infrastructure needed for an organic produce operation and to comply with FSMA include a well, electricity, irrigation improvements, hoop house, and barn. Staff has taken each of these items and described the process and impact to the property below;  Well – Water will be needed to irrigate early season plants and to wash produce throughout harvesting season. The most efficient and least visually impactful way to deliver potable water for the lessee would be to develop a well. Other options were explored including the installation of tanks and trucking water but the needs of an operator over the term of a lease (and future leases) makes the well the best option. Staff has already reached out to the Colorado Division of Water Resources for guidance on a well to serve the proposed operation. Dwight Whitehead, Well Permitting Technician, advised that the County could move forward on drilling an “observation / monitoring” well while the permitting process moves along. Since a well would most likely be within 600’ of a neighbor’s well, the County would have to gain consent or request a hearing from the State Engineer. Depending on outcome, it could take anywhere 4 – 10 weeks to obtain a permit to begin using the water.  Electricity – Electricity will be needed to supply power to the irrigation system, well pump, structures, etc… The lease area already has an existing power pole, with a line, so this seems to be the most appropriate place for the transformer.  Irrigation Improvements – Two Roots Farm are planning on developing a permanent buried irrigation system. The irrigation system would utilize Home Supply Ditch water and deliver the water through a series of risers which would apply water efficiently to produce and supply water to sprinkle irrigate the areas of the property that are growing hay. Two Roots Farm is not asking for any funding support for this item even though this is considered a permanent improvement. Two Roots Farm qualifies for a NRCS grant to cost share the improvement which will cover (90%) of the cost to develop the irrigation system. Derrick Wyle, NRCS Soil Conservationist, communicated that he believes Two Roots Farm has a good shot at obtaining the funding which he is estimating at $50,000 but it is not a guarantee.  Hoop House – Two Roots Farm is proposing placing a hoop house on the property to be clustered with additional structures. The hoop house(s) will be non-permanent and allow seed propagation in the spring, late season harvesting in the fall, and protection for weather sensitive plants like tomatoes. Since the hoop house location will be clustered with the permanent agricultural structure, the process of placement and 2/14/2018 AIS_ Emma OS South and Schoolhouse Leases Page 3 of 5 approval will be tied to the agricultural structure. Two Roots Farm is applying for funding from the NRCS to pay for this construction.  Permanent Agricultural Structure – Two Roots Farm has developed a general layout for a barn that would meet requirements currently and for the future regulations of FSMA. OST staff conceptually evaluated the structure for compliance with the guiding documents and found that the structure was not prohibited in the Conservation Easement overlaying the property and was allowed in the management plan. This type of development has never been pursued by the OST department or an agricultural lessee, and so, a public process is proposed to get community input. PUBLIC PROCESS Since this development is an OST project, the normal path to having structures approved to be developed is a Location and Extent Review by the Pitkin County Community Development Department (Com Dev). The review process includes completing an application containing the details of the development and how the development complies with the Emma Master Plan. Com Dev staff review and recommend to the Planning and Zoning board. Planning and Zoning review the application and Com Dev Staff findings to make a decision if the Location and Extent is consistent with the Master Plan for the area. Based on previous Location and Extent reviews completed by the OST department it generally takes between 60 – 90 days to be approved from time the application is submitted. Due to the uniqueness of the development, OST staff will undergo an additional public process prior to the Location and Extent process. Staff have developed additional materials and will provide information regarding the proposal on the Pitkin County OST Projects website to gather public comments (www.pitkinostprojects.com). While the public comment period is open OST staff will present to the OSTB at a regular meeting and additional presentations will be made to the Emma Caucus, Roaring Fork Conservancy, and whomever else is interested. These presentations will be given before the Location and Extent application is submitted so that the comments can be incorporated. Once the public process is complete the Location and Extent application will be completed for the supported improvements. The final step would be approval from OSTB and BOCC to approve construction of the structure in the location determined through the process. LINK TO STRATEGIC PLAN: The following “Core Focus Areas & Success Factors” are related to this item; Flourishing Natural & Built Environment – Success Factors 1. Conserved natural resources and environment 2. Responsibly maintain and enhance County assets Prosperous Economy 4. Responsible and accountable stewardship of County assets KEY DISCUSSION ITEMS: Review the background information and discuss the selection of Two Roots Farm for the lease of the Schoolhouse and the South Lease area of Emma Open Space. The 2/14/2018 AIS_ Emma OS South and Schoolhouse Leases Page 4 of 5 BOCC is required to approve all multi-year leases. If the BOCC does not approve the proposed leases, staff will either limit the leases to less than one year or restart the lease bid process. BUDGETARY IMPACT: OST will be receiving revenue from the proposed agricultural lease. OST will assist in providing electricity service and a well, which are permanent improvements to the agricultural use on Emma Open Space RECOMMENDED BOCC ACTION: Staff recommends that the Board of County Commissioners approve the attached Ordinance at public hearing on February 28th, 2018. ATTACHMENTS: 1. Map Emma Open Space 2. OST Agricultural Lease Bid Procedure and Policy 3. Ordinance 4. Lease 2/14/2018 AIS_ Emma OS South and Schoolhouse Leases Page 5 of 5 MAP 5: Emma Open Space Management Actions TW OR STATE WILDLIFE AREA IVE Ro a ring Fo r k Riv RS (CPW) EMMA OVERLOOK ROA D Bird Watching Platform (Town of Basalt) r e Fishing Access / Conservation Easement maa Emm Em Wildlife Underpass Enhancements and Monitoring Osprey Cam Monitoring Emma Townsite Historic Reuse Orchard Expansion Rio G Rio nde Grraan de -- Basal Basa t to lt to Emm Emma a 20 ACRE North Lease Area Flood Irrigation Culvert / Bridge 11 ACRE Schoolhouse Lease Area Sideroll Sprinkler Irrigation Orchard Expansion Potential Phase II SOPRIS CREEK RD HG HG HG Hom 11 ACRE ply D itch South Lease Area Gated Pipe Irrigation Primitive Public Land Access C er ram Ditc h HG LIGHT HILL (BLM) Emma Open Space Management Plan p e Su Pitkin County Pitkin County ° ° Emma Open Space Emma Open Space Agricultural Lease Areas Agricultural Lease Areas BLM BLM State Wildlife Area State Wildlife Area Trail Trail BLM Foot and Horse Trail BLM Foot and Horse Trail Irrigation Ditch Irrigation Ditch Headgate 0 0 105 105 210 210 Feet Feet 420 420 43 Agricultural Lease Bid Process and Policy Updated September 21, 2017 Introduction: Pitkin County Open Space & Trails (OST) was established by the voters of Pitkin County in 1990 with the following mission; “…to acquire, preserve, maintain and manage open space properties for multiple purposes including but not limited to recreational, wildlife, agricultural, scenic and access purposes…” The OST program has acquired several properties with an active agricultural component and will continue evaluating agricultural properties as possible acquisitions to fulfill the mission of the program. Prior to the implementation of the Agricultural Lease Bid Process (the “Process”), OST properties were leased purely in exchange for general management and stewardship. OST now receives a monetary lease rate and stewardship for an OST agricultural lease. OST wishes to stimulate interest in local production while continuing to maintain and enhance our agricultural resources. To that end, we invite a competitive process to determine the best lessees for our agricultural lands as specified in the individual property’s management plans. The purpose of this document is to update the Process to guide OST staff in selecting an appropriate tenant or lessee to manage OST fee-owned lands and guide management decision regarding capital improvements and support for agricultural lands. This document was developed with public input to ensure the process works for a variety of users, including established farmers and ranchers and new and beginning farmers and ranchers. This process shall be periodically reviewed and revised as needed to account for newly acquired unique properties, developments and new techniques for farming and ranching, desires of the community, and other similar reasons. Administration Procurement Process In creating a competitive process, we are guided by the Pitkin County procurement code, which is intended to: “…provide procurement procedures that will promote competition and maximize the purchasing power of public funds, increase organizational effectiveness, efficiency and accountability, and fair and equitable treatment of all persons participating…” The Pitkin County Procurement Code shall guide our agricultural lease processes. As provided for in the Procurement Code, a Request for Proposals (RFP) will be used to solicit bids for available agricultural properties as identified by OST staff. The RFP will include information regarding the sample lease language, boundaries, existing infrastructure, water rights, agricultural history, etc., of the agricultural parcel being offered. Lease language will vary from tenant to tenant based on the operation proposed and parcel. Potential lessees will be evaluated on a set of criteria developed by OST staff and Board with public input. The criteria are intended to supply enough information to the selection committee to determine that the practices and operation proposed will be the best fit for the property and enhance the conservation values. Evaluation Criteria Please describe the operation you propose for this property with as much detail as possible. Please include the following; (65%) • o Practices that conserve soil, native vegetation, resources. ▪ Water management / irrigation plan, water conservation techniques planned for the property, etc… o Duration of lease to accomplish agricultural goals i.e. X years are required before production goal is met. o Agricultural product and the proposed market for your product. If you plan to manage an organic operation, please describe your experience in organic production. o Any potential alteration to the leased ground and how the leased ground will be returned to Pitkin County upon the termination of lease. If applicable, have you previously leased property from OST? If yes, o Which property and on which dates did you lease the property? o What issues, if any, did you encounter during the duration of the lease? Please describe your agricultural background. (15%) • If you are currently involved in other agricultural enterprises, briefly describe the operation(s). Include general locations. Please list the machinery and equipment needs for your planned operation on the property and how you will meet those needs. (Own, lease, borrow, hire, etc.) (5%) Please provide personal references that are familiar with your agricultural experience. (5%) Proposed lease rate. (10%) Any monetary fees received by OST in exchange for an agricultural lease will be invested back into OST agricultural properties. This ensures the monetary fee from the tenant furthers the goals of the OST agricultural program. Management Plan Priorities In some cases, a management plan developed for an OST property will further prioritize the type of agricultural operation and lessee. These priorities may include; organic or natural production, new and beginning farmers, vegetable production, fruit production, hay production, cattle grazing, small animal husbandry, diverse production, etc… If the agricultural lease area has been identified with a priority, any application meeting the priority use will be scored and evaluated as a potential lessee first. If the priority applications are not viable or sufficient in stewarding the OST land, as determined by the selection committee, then all applications will be evaluated. Growers’ Associations / Cooperative Agricultural Leases OST staff recognizes that in some cases, several individuals with the same goal may come together to form “Growers’ Associations” or “Cooperative” to lease a portion of an OST property for agricultural production. Growers’ Associations will be evaluated on the same evaluation criteria as individual lease applicants. Growers’ Associations must also submit bylaws and each member’s contact information and qualifications (i.e. agricultural experience, proposed product, etc.) within their RFP application. Growers’ Associations chosen as lessees must notify OST staff of association meetings and make available the minutes from association meetings. One point of contact must be assigned from the association to facilitate communication between OST and association members. Sub Leasing / Assignment OST agricultural leases state, “Tenant agrees not to assign or sublease any part of the Property without the written consent of the Landlord.” OST staff will evaluate assignments or subleases on a case by case basis. Legitimate circumstances for assignment include, but are not limited to; • • • Original lessee is forming a cooperative or association is which they are involved. Lessee would like to sublease a portion of the lease area to complement their operation. Lessee would like to maintain profitability of cover crop by leasing as grazing ground. Lessees may be compensated for subleasing so long as the compensation does not exceed the annual lease rate paid to Pitkin County. Goods and services estimated to be above the monetary annual lease rate may be considered acceptable compensation if the service improves the condition of the County owned property or improves the County owned infrastructure. Process Steps Standard process steps will be followed by OST staff in determining appropriate lessees: Step 1 2 3 4 Description Identify property(s) that are eligible for leasing due to new property acquisition or existing leases within one year of expiration. Review property lease terms and conditions; make necessary adjustments if needed. Develop a Request for Proposals (RFP) for lease property following the County procurement code and process. Publicly advertise and send announcements to interested parties. 5 6 7 8 Pre-bid presentation and Q&A hosted on site at subject property or at nearby location for potential lessees. Receive RFPs. The OST Director, Resource and Trails Manager, and Operation Supervisor, with consultation from NRCS and/or CSU Extension, select successful lessee and notify all parties who have submitted a RFP of decision. Finalize lease. If necessary, OST staff will seek input from Community Development Representative and outside agencies to determine feasibility of applicant’s proposed operation. Acceptable outside agencies include, but are not limited to, the Natural Resource Conservation Service (NRCS), Mount Sopris Conservation District, and the Colorado State University Agricultural Extension Agent. All appeals will be referred to the Pitkin County Hearing Officer. Property Management By inviting more public to participate in the procurement process, a potential for diverse uses on fee properties will most likely be presented. To ensure lessee management and activities are compatible with open space properties, more comprehensive record keeping of agricultural inputs and oversight of agricultural operations will be required from all lessees. At a minimum, all lessees will be required to keep irrigation, fertilizer and seeding, and yield records. An annual operating plan will be developed for each lease to assist OST staff in assessing proper property management and to ensure compliance with any existing management plans and conservation easements associated with the leased ground. OST staff will also make regular site visits to leased properties to facilitate communication. Any structures associated with an agricultural lease will be managed in accordance with the management plan for that OST property. The terms of the agricultural lease will list lessee management and stewardship obligations. If a contemplated activity is not addressed within the agricultural lease, the lessee must contact OST staff to determine if the activity is compatible before any aspect of the activity is undertaken. Pest Management OST recognizes that farmers and ranchers must manage properties to control unwanted animal, fungus, plant and insect pests. Lessees will prioritize non-chemical options for pest control and will be encouraged to work with adjacent landowners and lessees to coordinate efforts. Only upon consultation and approval from OST staff will any lessee be authorized to apply chemical herbicide or pesticide. OST staff will review the agricultural lease, annual operating plan, noxious weed and/or pest species, and proposed chemical application to ensure compliance and if it is the best course of action for the area. If a chemical is approved, the lessee shall post signage prior to application with application date(s), type of pesticide/herbicide, and objective of use to inform the public. Policies Agricultural leases will be managed and operated in accordance with the OST Statement of Policies and Objectives. Notable objectives and policies that are specifically applicable to agricultural lease program include: • Stewardship Objective – Stewardship practices seek to preserve and enhance the ecological, scenic, recreational and cultural values of the open space and trails acquired by Open Space and Trails. • Stewardship Policy #3 - Neighborliness – Being a good steward of the land means being a good neighbor. Every reasonable effort is made to minimize or eliminate the impacts of trespassing, noise, fire hazard, livestock harassment, or other inappropriate behaviors on neighboring landowners. • Stewardship Policy #4 – Retain Agricultural Lands – It is the policy of the OST Board to cooperate with the county’s agricultural community in strategies designed to retain and continue production on the large tracts of farm and ranch lands which provide important open space buffers between the communities of the Roaring Fork and Crystal River valleys. As a corollary policy, the OST Board also supports the responsible use of public lands for agricultural and ranching purposes. Property Improvements Updates to infrastructure may be necessary to accomplish the goals of an OST lessee. Permanent and temporary enhancements including headgate replacement, ditch lining, utility updates, structures, etc…, and enhancements identified in property management plans will be completed by OST staff or contractors. If a permanent or temporary enhancement is specific to the lessee’s operation OST staff will work on cost sharing the item as it will be retained by Pitkin County at the time of lease termination. Intergovernmental Management In certain cases, OST partners with other governmental agencies or organizations to manage properties. OST may defer lease procurement and management to the partner organization. In these cases, an intergovernmental agreement will be prepared to ensure the OST property will be properly stewarded. AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, AUTHORIZING AN AGRICULTURAL LEASE OF THE EMMA OPEN SPACE SCHOOLHOUSE AND SOUTH LEASE AREAS BETWEEN THE BOARD OF COUNTY COMMISSIONERS AND TWO ROOTS FARM LLC ORDINANCE NO. ___________-2018 RECITALS: 1. 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 (“HRC”), the BOCC is authorized to take official action by Ordinance for certain matters where action is prescribed pursuant to the Colorado Revised Statues as amended. 3. The Voters of Pitkin County and the Board of County Commissioners of Pitkin County (BOCC) established an Open Space and Trails Fund for the purposes of acquiring, preserving, managing, and maintaining open space and trails assets and resources, and established an Open Space and Trails Board of Trustees (OSTB) to guide the expenditure of those funds. 4. The Open Space and Trails Program (OST) is charged with protecting agriculture, open space, habitat, scenic view planes, water rights and river access. 5. An Agricultural Lease Bid Process and Policy was adopted by the OSTB on October 7, 2014 (updated September 21, 2017) to implement the County’s Procurement Code and guide OST staff in selecting appropriate tenants to manage and lease OST agricultural properties 6. The Emma Open Space is comprised of approximately 58 acres located in the Emma area of Pitkin County and was acquired by Pitkin County June 22, 2000. The property was acquired to preserve the agricultural, scenic, wildlife, and recreational values of the property. 7. The Procurement Code requires BOCC approval pursuant to an Ordinance for the leasing of any Pitkin County property for more than one year. 8. The Emma Open Space Management Plan was adopted on June 26, 2017, and identifies historically leased areas continue to be leased using the County’s lease bid process and policy as a management action. Ordinance _____-2018 9. On January 11, 2018, the OSTB recommended that the BOCC approve the proposed lease for the Emma Open Space Schoolhouse and South Lease Areas between the BOCC and Two Roots Farm. 10. The BOCC finds that adoption of this ordinance is in the best interest of the citizens of Pitkin County. NOW, THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Pitkin County, Colorado that it hereby adopts an Ordinance Authorizing an Agricultural Lease of the Emma Open Space Schoolhouse and South Lease Area and authorizes the Chair or the Chair’s designee to sign the Ordinance and upon the satisfaction of the County Attorney as to form, execute any other associated documents necessary to complete this matter. Signatures on next page Ordinance _____-2018 INTRODUCED AND FIRST READ ON THE 14TH DAY OF FEBRUARY, 2018 AND SET FOR SECOND READING AND PUBLIC HEARING ON THE 28TH DAY OF FEBRUARY, 2018. NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE RESOLUTION PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE _______ DAY OF _____________, 2018. NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE RESOLUTION POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com ) ON THE ______DAY OF _______________ 2018. ADOPTED AFTER FINAL READING AND PUBLIC HEARING ON THE ______ DAY OF _______________ 2018. PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION, IN THE ASPEN TIMES WEEKLY ON THE _____ DAY OF ____________, 2018. POSTED BY TITLE AND SHORT SUMMARY ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com ) ON THE ______DAY OF_______________, 2018 ATTEST: BOARD OF COUNTY COMMISSIONERS By _________________________ Jeanette Jones Deputy County Clerk By: _____________________________ Patti Clapper, Chair Date: ______________ APPROVED AS TO FORM: MANAGER APPROVAL ___________________________ John Ely, County Attorney _________________________________ Jon Peacock, County Manager OPEN SPACE & TRAILS _________________________ Gary Tennenbaum, Director Ordinance _____-2018 AGRICULTURAL LAND LEASE This lease is entered into this____ day of_________________, 201__ by and between the Board of County Commissioners of Pitkin County, Colorado, hereinafter “Landlord” or “County”, and Two Roots Farm LLC, P.O. Box 1434, Carbondale, CO 81623, hereinafter “Tenant”. Now therefore, in consideration of the mutual covenants and promises contained herein, the parties agree as follows: 1. Purpose and Intent. Landlord and Tenant intend that the property, all appurtenances, water rights, easements and improvements be used for active agricultural production. Agricultural production shall continue during the entire term of the lease without interruption, consistent with accepted agricultural practices and the agriculture production plan for the property proposed by Tenant and accepted by Landlord, in writing, and made part of this lease. 2. Leased Property. Landlord in consideration of the terms contained herein leases to the Tenant, pursuant to the attached Annual Operating Plan, the following described real property: Emma Open Space South Lease Area and Schoolhouse Lease Area, together with all appurtenant water rights, consisting of the following: 2.0 cubic feet per second (cfs) of water in the Home Supply 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, 2028. This lease shall not be renewed or extended except through express written amendment to this lease. Tenant is expressly prohibited from holding over beyond the expiration of the lease term without express written permission of Landlord. A. Lessee’s Option to Extend. After five (5) years, the Lessee may extend the principle term of this lease for an additional 10 (ten) years, subject to all the provisions of this lease. 4. Rent. Tenant agrees to pay Landlord rent at the rate of $ 500.00 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 1 each year or portion of a year that the lease is in effect. Failure to pay rent by this date constitutes a breach of this lease. AGRICULTURAL PROVISIONS 1. Soil Testing. Except as modified by the Annual Operating Plan, it shall be the responsibility of the Tenant to test the soil of the Property twice a year. Soil samples shall be gathered from a representative portion of the leased property. Soil samples will be gathered during the month of May and during the month of September. Soil samples will be tested through the Colorado State University extension office. 2. Weed Control. Tenant is responsible for the removal of all noxious weeds as defined in the Colorado Noxious Weed Act. Removal of noxious weeds shall be before individual 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. AGRICULTURAL LAND LEASE PAGE 2 OF 8 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. 4. Fertilizers. The application of any and all fertilizer agents shall be based upon the results of the soil tests and with the recommendation of Colorado State University. The intent of the application of any fertilizer will be to restore or improve soil conditions. The type of fertilizer to be used as well as its application schedule and application method shall be contained within the Annual Operating Plan for the Property. 5. Livestock. Livestock may be maintained on the Property consistent with the Annual Operating Plan. Livestock shall be penned or pastured so as not to cause the destruction of pasture grasses, soil depressions or swales, or in any way that would negatively affect irrigation practices. Watering of livestock shall be conducted in approved areas consistent with the Annual Operating Plan. 6. Vehicle and Machinery Storage. The storage of vehicles or machinery not actively used as part of the agricultural operation is prohibited. The maintenance of vehicles and machinery used in agricultural operations may be conducted only in designated areas. Any spill or loss of any fluid associated with vehicles or agricultural machinery must be collected and disposed of off the Property consistent with applicable law. 7. Existing Vegetation. Existing hedgerows and brush areas shall not be disturbed except as specifically allowed in writing by the County or as incorporated into the Annual Operating Plan. 8. Emblements. Tenant shall be entitled to all emblements if the termination of the lease is not a result of Tenant’s breach and shall retain harvest rights through the end of the growing season. If the lease is terminated or canceled as a result of Tenant’s default and failure to cure in accordance with the terms of this lease, all agricultural products shall be harvested or otherwise gathered and sold, if possible and reasonably practical, with the proceeds of such sale going to Landlord to cover its costs and the remainder shared between Landlord and Tenant based on the percentage of the growing season each was in possession of the Property. The Landlord will not possess a security interest in the emblements. 9. Fences. Tenant shall be responsible for maintaining all fences and gates in working condition as necessary for the Tenant’s proposed use, normal wear and tear excepted. Removal of fencing is permitted with Landlord’s approval and must be reinstalled upon termination of this lease if 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 shall not make any improvements or changes in the irrigation infrastructure without written permission of the Landlord. All irrigation improvements become the property of the Landlord at the end of the 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. AGRICULTURAL LAND LEASE PAGE 3 OF 8 11. Erosion. Tenant shall not engage in any activity which results in the loss of soil or changes the topography or grade of the Property. 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 Operating Plan. An Annual Operating Plan shall be developed for the County by the Open Space and Trails Department, with the Tenant’s input, within two months of the Tenant entering into this lease and will be reviewed and amended, if necessary, at least annually (the “Annual Operating Plan”) and incorporated into this lease. Landlord may terminate this lease if Tenant fails to comply with any of the material provisions of the Annual Operating Plan. All Annual Operating Plans shall include the type of agricultural activity to be conducted on the Property and describe the areas of the Property that will be used for specific agricultural activities. The plan will propose the anticipated water use and whether any changes are needed to the existing irrigation infrastructure. The plan shall address any herbicide or pesticide applications to be used on the Property and whether or not there are pests or predators to be removed or eradicated from the Property. The plan shall include the anticipated season dates for the actual agricultural activity as well as the winter cover for the areas of the Property on which agricultural activities were conducted. The plan shall include the types, method of application and timing for the application of any fertilizer to be used. Amendments to the plan may be executed by the Open Space and Trails Department. GENERAL PROVISIONS 1. Insurance. Tenant shall procure and maintain for the term of the lease, insurance against claims for injury to persons or damage to Property which may arise from or in connection with occupancy and use of the Property. The insurance requirements herein are minimum requirements for this lease and in no way limit the indemnity covenants contained in this lease. Tenant’s insurance shall be primary and noncontributory 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 and/or broader coverages. Tenant is not relieved of any liability or other obligations assumed or pursuant to the lease by reason of its failure to obtain or maintain insurance in sufficient amounts, duration, or types. A. Coverage and Limits of Insurance: Tenant shall provide coverage with limits of liability not less than those stated below. An umbrella and/or excess liability policy may be used to meet the minimum liability requirements provided that the coverage is written on a “following form” basis. 1. Statutory Workers’ Compensation: Colorado statutory minimums AGRICULTURAL LAND LEASE PAGE 4 OF 8 a. Policy shall contain a waiver of subrogation against the County. 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 1CG 0001 form or equivalent (With County named additional insured) Minimum Limits: General Aggregate $ 500,000 Products/Completed Operations Aggregate $ 500,000 Each Occurrence Limit $ 500,000 Personal/Advertising Injury $ 500,000 Fire Damage (Any One Fire) Replacement Value of any Structures Medical Payments (Any One Person) $ 5,000 Coverage to include: • Premises and Operations • Personal / Advertising Injury • Products / Completed Operations • Liability assumed under an Insured Contract (including defense costs assumed under contract) • Independent Contractors • Additional Insured—Owners, Lessees or Contractors Endorsement, ISO Form 2010 (2004 Edition or equivalent) • Additional Insured—Owners, Lessees or Contractors Endorsement, ISO CG 2037 (2004 Edition or equivalent) • The policy shall be endorsed to include the following additional insured language on the Additional Insured Endorsements specified above: “County, its subsidiary, parent, associated and/or affiliated entities, successors, or assigns, its elected officials, trustees, employees, agents, and volunteers named as an additional insured with respect to liability and defense of suits arising out of the activities performed by, or on behalf of the Contractor, including completed operations.” B. Proof of Insurance: AGRICULTURAL LAND LEASE PAGE 5 OF 8 1. Each insurance policy required by the insurance provisions of this lease shall provide the required coverage and shall not be suspended, voided or canceled except after thirty (30) days prior written notice has been given to the County, except when cancellation is for non-payment of premium, then ten (10) days prior notice may be given. Such notice shall be sent directly to Pitkin County Open Space and Trails Department, 530 E. Main Street, 3rd Floor, Aspen, Colorado, 81611. If the insurance carrier will not provide the required notice, the Consultant/Contractor and or its insurance broker shall notify the County of any cancellation, or reduction in coverage or limits of any insurance within seven (7) days of receipt of insurers’ notification to that effect. 2. Landlord reserves the right to request and receive a copy of any policy and any policy endorsement at any time during the term of this lease. 2. Indemnity. A. Tenant agrees to indemnify, hold harmless and, not excluding the County's right to participate, defend the County, its subsidiary, parent, associated and/or affiliated entities, successors, or assigns, its elected officials, trustees, employees, agents, volunteers, and any jurisdiction or agency issuing permits for any work included in the performance of this lease, hereinafter referred to as indemnitee, from all suits and claims, including attorney's fees and cost of litigation, actions, loss, damage, expense, cost or claims of any character or any nature arising out of the work done in fulfillment of the terms of this lease or on account of any act, claim or amount arising or recovered under workers' compensation law or arising out of the failure of Tenant to conform to any statutes, ordinances, regulation, law or court decree. It is agreed that Tenant will be responsible for primary loss investigation, defense and judgment costs where this contract of indemnity applies. Pitkin County and its elected Board shall be named as an additional insured with respect to any liability arising out of the activities performed by, or on behalf of the Tenants on the Leased Property. B. Tenant further shall investigate, process, respond to, adjust, provide defense for and defend, pay or settle all claims, demands, or lawsuits related hereto at its sole expense and shall bear all other costs and expenses related thereto, even if the claim, demand or lawsuit is groundless, false or fraudulent. 3. Assignability. Tenant agrees not to assign or sublease any part of the Property without the written consent of the Landlord. 4. Severability. In the event that any provision of this lease shall be held to be invalid or unenforceable, the remaining provisions of this lease shall remain valid and binding upon the parties hereto. AGRICULTURAL LAND LEASE PAGE 6 OF 8 5. Integration and Modification. This lease represents the entire and integrated lease between the County and Tenant and supersedes all prior negotiations, representations, or contract, either written or oral. This lease may be amended only by written contract signed by both the County and Tenant. 6. Records. Tenant shall maintain comprehensive, complete and accurate books, records, and documents concerning its performance relating to this lease for a period of three (3) years after final payment under the lease and the County shall have the right within the three (3) year period to inspect and audit these books, records and documents, upon demand, in a reasonable manner and at reasonable times, for the purpose of determining, by accepted accounting and auditing standards, compliance with all provisions of the lease and applicable law. 7. Lease Made in Colorado. The parties agree that this lease was made in accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to be exclusively in the courts of Pitkin County, Colorado. 8. Attorney’s Fees. In the event that legal action is necessary to enforce any of the provisions of this lease, the substantially prevailing party, whether by final judgment or out of court settlement, shall recover from the other party all costs and expenses of such action or suit including reasonable attorney’s fees. 9. Waiver. Failure of the County to exercise any right or remedy granted under this lease shall not have the effect of waiving or limiting the exercise of the County, or of any other right or remedy or the indication of such right or remedy at any future time. 10. Governmental Immunity. Tenant agrees and understands that Pitkin County is relying on and does not waive, by any provision of this lease, the monetary limitations or terms or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, § 24-10-101, et seq., C.R.S., as from time to time amended, or otherwise available to Pitkin County or any of its officers, agents or employees. Further, nothing in this lease shall be construed or interpreted to require or provide for indemnification of Tenant by the County for any injury to any person or any property damage whatsoever which is caused by the negligence or other misconduct of the County or its agent or employees. 11. Notice. Any notice required or permitted under this Agreement shall be in writing and shall be provided by electronic delivery to the e-mail addresses set forth below and by one of the following methods 1) hand-delivery or 2) registered or certified mail, postage prepaid to the mailing addresses set forth below. Each party by notice sent under this paragraph may change the address to which future notices should be sent. Electronic delivery of notices shall be considered delivered upon receipt of confirmation of delivery on the part of the sender. Nothing contained herein shall be construed to preclude personal service of any notice in the manner prescribed for personal service of a summons or other legal process. To: Pitkin County Open Space & Trails Attn: Paul Holsinger AGRICULTURAL LAND LEASE PAGE 7 OF 8 806 West Hallam Street Aspen, Colorado 81611 Fax: (970) 920-5198 E-Mail Address: paul.holsinger@pitkincounty.com With Copies To: Pitkin County Attorney’s Office 123 Emma Road, #204 Basalt, CO 81621 Fax: (970) 920-5198 E-Mail: Attorney@pitkincounty.com To: Two Roots Farm LLC P.O. Box 1434, Carbondale, CO 81623 E-Mail: harper.kaufman@gmail.com E-Mail: cmlabar@gmail.com 12. Default/Violation of Lease Terms. Every clause herein contained is hereby made a condition of this lease. If Tenant fails to comply with any of the material provisions of this lease, or of any present rules and regulations or any that may be hereafter prescribed by Landlord, or materially fails to comply with any duties imposed on Tenant by statute within seven (7) days after delivery of written notice by Landlord specifying the non-compliance and indicating the intention of Landlord to terminate the lease by reason thereof, Landlord may terminate this lease. 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 are not intended to, and shall not govern, limit or aid in the construction of any terms or provisions contained herein. MICELLANEOUS 1. Landlord reserves the right for itself, its agents, and employees to enter the Property at any reasonable time to inspect the Property and to work and make improvements as the Landlord shall deem necessary. Except in exigent or emergency circumstances, Landlord shall give Tenant forty-eight (48) hours notice before entering Property. 2. Landlord makes no guarantee of the productivity of the Property and assumes no liability of any condition, visible or not, which may affect agricultural productivity of the Property. Tenant agrees to accept the Property in an as is condition. AGRICULTURAL LAND LEASE PAGE 8 OF 8 3. Tenant shall perform all routine maintenance on the improvements on the Property. Tenant shall repair any damage to the improvements on the Property that are the result of acts of third parties. 4. Tenant shall not place store or use on the Property substances that are hazardous toxic dangerous or harmful or which are defined as hazardous substances by the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), 42 USC § 9601. 5. Tenant shall not pledge mortgage or cause any lien to be recorded against the Property during the term of this lease. 6. Tenant shall not construct any 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 By:__________________________ Two Roots Farm LLC Date By:____________________________ Chair Date APPROVED AS TO FORM: _________________________ John M. Ely Pitkin County Attorney AGENDA ITEM SUMMARY REGULAR MEETING DATE: February 14, 2018 AGENDA ITEM TITLE: Resolution Authorizing Amendments to an Intergovernmental Agreement (Approved by Resolution No. 013-2016) between the Board of County Commissioners and the City of Grand Junction through the Grand Junction Regional Communications Center STAFF RESPONSIBLE: Brett Loeb, Emergency Communication Director ISSUE STATEMENT: Shall the Board of County Commissioners approve amendments to an Intergovernmental Agreement with the Grand Junction Regional Communications Center approved by Resolution No. 013-2016 BACKGROUND: Pursuant to Resolution No. 013-2016, the Board of County Commissioners approved an Intergovernmental Agreement (“Agreement”) with the City of Grand Junction through the Grant Junction Regional Communications Center to review, audit and examine the audio recordings of emergency medical dispatch calls completed by the Pitkin County Regional Emergency Dispatch Center. As part of that agreement, the BOCC authorized an extension of the agreement up to five one-year terms. In January 2017 upon mutual agreement by both parties, the agreement was renewed from January 1 2017 through December 31, 2017. At the time of this renewal, there were no amendments to the language in the agreement. Staff is recommending to the BOCC that the agreement be renewed for another one-year period beginning on January 1, 2018 through December 31, 2018. However, as part of the request for BOCC consideration of this particular renewal, staff is recommending four amendments to the agreement as contained in the First Amended Agreement attached hereto and as follows: 1. The City’s Obligations and Authority. a. Item 2. The first sentence shall be amended to state: The City shall provide Pitkin County Quality Assurance of the number of calls for service that the City deems necessary, based on Pitkin County’s call volume, during the period of the Agreement. b. Item 2. The last sentence, which states: “Compensation shall be $20.00 per call monitored by City” shall be eliminated. 2. The Noticing Requirements in Item 17 of the IGA be updated to include e-mail transmission. 3. That all references to “Pitkin” as a party to the IGA shall mean the “Board of County Commissioners of Pitkin County”. LINK TO STRATEGIC PLAN: Safe Community – A sense of personal and community safety KEY DISCUSSION ITEMS: Staff will attend the meeting to answer any questions or provide clarification for the BOCC as necessary. BUDGETARY IMPACT: None RECOMMENDED BOCC ACTION: Approve the Resolution Authorizing Amendments to an Intergovernmental Agreement (Approved by Resolution No. 013-2016) between the Board of County Commissioners and the City of Grand Junction through the Grand Junction Regional Communications Center on first reading and set for second reading and public hearing on February 28, 2018 ATTACHMENTS: 1) Resolution 2) Amending Agreement 3) Intergovernmental Agreement No. 148-2016 10-09-2017 RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS (“BOCC”) OF PITKIN COUNTY, COLORADO, AUTHORIZING AMENDMENTS TO AN INTERGOVERNMENTAL AGREEMENT (APPROVED BY RESOLUTION NO. 013-2016) BETWEEN THE BOARD OF COUNTY COMMISSIONERS AND THE CITY OF GRAND JUNCTION THROUGH THE GRAND JUNCTION REGIONAL COMMUNICATIONS CENTER (“THE CITY”) RESOLUTION NO. ______-2018 RECITALS: 1. Pursuant to Title 29, Article 1, part 2, Colorado Revised Statutes, as amended (the “Intergovernmental Relations Statutes”) and Article XIV, Section 18 of the Colorado Constitution, governments may contract with one another to provide any function, service or facility lawfully authorized to each of the contracting units and any such contract may provide for the joint exercise of the function, service or facility, including the establishment of a separate legal entity to do so. 2. Pursuant to Section 2.8.3 (Actions) of the Pitkin County Home Rule Charter (“HRC”), official action by formal resolution shall be required for all actions of the Board not requiring ordinance power on matters of significant importance affecting citizens. 3. The Board of Commissioners (“BOCC” and The City of Grand Junction through the Grand Junction Regional Communications Center (“City”) entered into an Intergovernmental Agreement (“Agreement”) on January 1, 2016. 4. The term of the Agreement states that at the expiration of the initial term, the Agreement could be extended for an additional term of five (5) additional one (1) year terms by the express written consent of both parties. 5. In January 2017, the Agreement as written was extended for a period beginning on January 1, 2017 and ending December 31, 2017. 6. The BOCC and the City have elected to renew the Agreement for the calendar year 2018 with language contained in the Amending Agreement attached hereto as Attachment “A”. 7. Both the BOCC and the City are governments authorized to enter into agreements pursuant to C.R.S. § 29-1-203 for purposes including the provision of any function, service, or1facility lawfully authorized to each; and 8. The BOCC finds that it is in the best interests of the citizens of Pitkin County and the health and welfare of the citizens to approve amendments to the Agreement approved by Resolution No. 013-2016. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Pitkin County, Colorado that: 1. The Board of County Commissioners hereby approves a Resolution authorizing amendments to an Intergovernmental Agreement between the Board of County Commissioners and the City of Grand Junction through the Grand Junction Regional Communications Center in substantially the same form satisfactory to the County Attorney. 2. The Chair of the Board of County Commissioner or its designee is authorized to sign the Resolution and the Amending Agreement on behalf of the County. 3. The Board of County Commissioners authorizes the Director of Communications to sign all future amendments to the IGA through December 31, 2020, subject to the approval of the county manager. 2 INTRODUCED AND FIRST READ ON THE _______ DAY OF_______________, 2018 AND SET FOR SECOND READING AND PUBLIC HEARING ON THE ______DAY OF _______________ 2018. NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE RESOLUTION PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE _______ DAY OF _____________, 2018. NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE RESOLUTION POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com ) ON THE ______DAY OF _______________ 2018. ADOPTED AFTER FINAL READING AND PUBLIC HEARING ON THE ______ DAY OF _______________ 2018. PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION, IN THE ASPEN TIMES WEEKLY ON THE _____ DAY OF ____________, 2018. POSTED BY TITLE AND SHORT SUMMARY ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com ) ON THE ______DAY OF_______________ 2018. ATTEST: BOARD OF COUNTY COMMISSIONERS By _________________________ Jeanette Jones Deputy County Clerk By: _____________________________ Patti Clapper, Chair Date: ______________ APPROVED AS TO FORM: MANAGER APPROVAL ___________________________ John Ely, County Attorney _________________________________ Jon Peacock, County Manager 3 “ATTACHMENT A” FIRST AMENDMENT TO AN INTERGOVERNMENTAL AGREEMENT (“IGA”) (APPROVED BY RESOLUTION NO. 013-2016) FOR EMERGENCY MEDICAL DISPATCH QUALITY ASSURANCE THIS AMENDING AGREEMENT (the “Agreement”) is made this 1st day of January 2018, by and between the Board of County Commissioners of Pitkin County, Colorado, whose temporary address is 123 Emma Road, Suite 106, Basalt, CO 81621 ("BOCC”) and the City of Grand Junction through the Grand Junction Regional Communication Center (“the City”). RECITALS 1. This Agreement is entered into pursuant to, inter alia, C.R.S. §§ 29-1-201, et seq., and Article XIV, Section 18 of the Colorado Constitution. 2, The Board of County Commissioners wishes to secure a provider of certain services to review, audit and examine the audio recordings of emergency medical dispatch calls (“Cases”) completed by the Pitkin County Regional Emergency Dispatch Center. The purpose of the City’s work will be to determine reasonable compliance with the protocol(s) used by the dispatch center for its emergency medical dispatch policies and procedures. 3. The Board of County Commissioners entered into an IGA (Approved by Resolution No. 013-2016) with the City through the Grand Junction Regional Communications Center for the provision of emergency medical dispatch quality assurance on January 1, 2016, which was renewed as written, on January 1, 2017. 4. The Board of County Commissioners and the City have elected to renew the 2017 Intergovernmental Agreement (“IGA”) with amendments to be effective January 1, 2018. 5. It is in the best interest of the citizens of Pitkin County to enter into this Amended Agreement to the IGA with the City. AMENDMENTS TO INTERGOVERNMENTAL AGREEMENT NOW, THEREFORE, for and in consideration of the mutual promises and agreements of the parties and other good and valuable consideration, the adequacy and sufficiency of which is hereby acknowledged, the parties agree to the following amendments to the IGA approved by Resolution No. 013-2016: 1. Parties: The parties to this agreement shall be the Pitkin County Board of County Commissioners and the City of Grand Junction through the Grand Junction Regional Communications Center. All references to Pitkin in the existing IGA, shall mean the Pitkin County Board of County Commissioners, 2. Term: The term of this Agreement shall be from January 1, 2018 through December 31, 2018. 3. The City’s Obligations and Authority. a. Item 2. The first sentence shall be amended to state: “The City shall provide Pitkin County Quality Assurance of the number of calls for service that the City deems necessary, based on Pitkin County’s call volume, during the period of the Agreement.” b. Item 2. The last sentence, which states: “Compensation shall be $20.00 per call monitored by City” shall be eliminated. 4. Item 17. Notice. The noticing clause shall be amended to state: “Any notice required or permitted under this Agreement shall be in writing and shall be provided by electronic delivery to the e-mail addresses set forth below and by one of the following methods 1) hand-delivery or 2) registered or certified mail, postage prepaid to the mailing addresses set forth below. Each party by notice sent under this paragraph may change the address to which future notices should be sent. Electronic delivery of notices shall be considered delivered upon receipt of confirmation of delivery on the part of the sender. Nothing contained herein shall be construed to preclude personal service of any notice in the manner prescribed for personal service of a summons or other legal process.” To: Pitkin County Dispatch Director Pitkin County Emergency Regional Dispatch Center brett.loeb@pitkin911.org With copies to: Pitkin County Attorney’s Office 123 Emma Road, Suite 2014 Basalt, CO 81621 attorney@pitkincounty.com To: Grand Junction Regional Communications Center Attn: Paula Creasy 555 Ute Avenue Grand Junction, CO 81501 paulac@gjcity.org With copies to: City Attorney 250 North 5th Street Grand Junction, CO 81501 johns@gjcity.org 5. Item 2: Scope of Work: The last sentence shall be amended to state: “The City shall provide Pitkin County Quality Assurance of the number of calls for service that the City deems necessary, based on Pitkin County’s call volume, during the period of the Agreement.” 6. All other terms and conditions of the IGA approved by Resolution No. 013-2016, shall remain in full force and effect. The foregoing Agreement was approved by the Board of County Commissioners of Pitkin County, Colorado at its regular meeting held on the _____ day of , 2018. The foregoing Agreement was approved by the City of Grand Junction on the _____ day of , 2018. In Witness whereof, the parties hereto have caused this agreement to be executed as of the day and year first above written. GRAND JUNCTION REGIONAL COMMUNICATIONS CENTER By:___________________________________________ Mike Nordine, Interim Police Chief BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO By:_______________________ Patti Clapper, Chair Manager Approval: By:______________________ Jon Peacock, County Manager APPROVED AS TO FORM By:__________________________ County Attorney CONTRACT N l yss 2a/C INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF GRAND JUNCTION, STATE OF COLORADO AND COUNTY OF PITKIN, STATE OF COLORADO FOR EMERGENCY MEDICAL DISPATCH QUALITY ASSURANCE THIS INTERGOVERNMENTAL AGREEMENT( the" Agreement") is made this l" day of January, 2016 by and between the CITY OF GRAND JUNCTION, STATE OF COLORADO, by and through the Grand Junction Regional Communications Center, 555 the Avenue, Grand Junction, Colorado(" City'') and COUNTY OF PITKIN, STATE OF COLORADO, by and through its Board of County Commissioners, whose address is 530 East Main Street, Aspen, Colorado, 81611 (' Pitkin") collectively the(" Parties"). RECITALS WHEREAS: This Agreement is entered into pursuant to, inter alfa, C.R. S. §§ 29- 1- 201, et seq. and Article XIV, Section 18 of the Colorado Constitution; and WHEREAS: Pitkin wishes to secure a provider of certain services to review, audit and examine the audio recordings of emergency medical dispatch calls(" Cases") completed by Pitkin. The purpose of the City' s work will be to determine reasonable compliance with the protocol( s) used by Pitkin for its Emergency Medical Dispatch policies and procedures. WHEREAS: It is in the best interest of both Pitkin and City to enter into this Agreement. NOW, THEREFORE, for an in consideration of the mutual promises and agreements of the parties and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: I. Terra The term of the Agreement is from January I, 2016 to December 31, 2016. At the expiration of the initial term, the Agreement may be extended for five( 5) additional one- year terms by the express written consent of both parties 2. The City' s Obligations and Authority. The City shall provide Pitkin Quality Assurance of an estimated 500 Emergency Medical Dispatch(" EMD") calls for service(" Cases") during the period of the Agreement. Cases that are found to be non- compliant by the City with the EMD standards as provided by Exhibit A: Scope of Work, attached hereto and incorporated by this reference, will be forwarded to Pitkin for review and action as determined necessary or appropriate by Pitkin. The City will consult with Pitkin no less than monthly to provide report( s) of non- compliance us reasonably determined by the City and/ or to report any apparent pattern or trend of non- compliant performance and recommended training to be provided to Pitkin employee( s) by Pitkin in response to reasonably identified deficiencies with the EMD. Compensation shall be$ 20.00 per call monitored by City. 2 3. Pitkin' s Obligations. Pitkin shall administer this Agreement through the acting Pitkin County Regional Emergency Dispatch Center Director, and the Director will manage the project as Plain' s Representative. If the Director is not available, a Dispatch Supervisor shall assume the duties as Pitkin' s Representative. The services provided and products delivered by the City under this Agreement will be subject to review by Pitkin' s Representatives, or a designee, for compliance with City' s obligations. 4. Compensation and Expenses, Invoicing, Payment and Offset. Pitkin shall compensate the City for its services in accordance with the per call amount for the estimated number of Cases as described in Paragraph 2. It is expressly understood and agreed that in no event will the total compensation and reimbursement to be paid hereunder exceed the sum of ten thousand dollars($ 10,000.00) for all services rendered. City shall invoice for the project on an annual basis with payment in full due within thirty( 30) days of invoice. 5. Pitkin' s Exclusive Ownership of Work Product. Reports, recommendations and other document( s) prepared by the City in connection with this Agreement shall be the property of Pitkin; however, City shall have die right to utilize such documents in the course of its professional presentations and other business purposes. City assigns to Pitkin the copyright(s) to all work prepared, developed, or created pursuant to this Agreement, including the right to: a) reproduce the work; b) prepare derivative works; c) distribute copies to the public as the same may otherwise be controlled by the Colorado Open Records Act and/ or other applicable law protecting patient privacy and/ or medical records. City shall have the right to use materials produced in the course of this Agreement for professional presentations, articles, speeches and other business purposes as the same may otherwise be controlled by the Colorado Open Records Act and/ or other applicable law protecting patient privacy and/ or medical records. 6. Termination Prior to Expiration of Agreement Term. Pitkin has the right to terminate this Agreement, with or without cause, by giving written notice to the City of such termination and specifying the effective date thereof. Such notice shall be given at least ten( 10) days before the effective date of such termination. In such event all finished or unfinished documents, data, studies and reports prepared by the City pursuant to this Agreement shall become Pitkin' s property. City shall be entitled to receive compensation in accordance with the Agreement for any satisfactory work completed pursuant to the terms of this Agreement prior to the date of termination. Notwithstanding the above, City shall not be relieved of liability to Pitkin for damages sustained by Pitkin by virtue of any breach of the Agreement by the City. 7. Assignability. This Agreement is not assignable by either party, 8. RindinaMediation. Any dispute( s) arising out of or under this Agreement or the performance or non- performance thereof shall be subject to mediation as a precondition to litigation. The parties agree that any disputes concerning the terms and conditions of this Agreement shall be submitted and finally settled by mediation by the Pitkin County Hearing Officer appointed to arbitrate Pitkin' s agreement disputes. Costs of the mediation shall be awarded to the prevailing party. 9. Severability. In the event that any provision of this Agreement shall be held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain valid and binding upon the parties hereto. 3 10. Integration and Modification. A. This Agreement represents the entire and integrated Agreement between Pitkin and the City and supersedes all priornegotiations, representations, or agreement. eithcr written moral. This Agreement may be amended only by written Agreement signed by bah Pitkin and the City. B. Pitkin may, from time to time, request changes in the scope of services of the City to be performed hereunder. Such changes shall proportionally increase or decrease the City' s compensation. Any changes to the Agreement shall be mutually agreed upon in advance and in writing by and between Pitkin and the City and shall upon mutual execution become part of this Agreement. II. Indemnity. The City agrees to the extent authorized by law to indemnify, hold harmless and, not excluding Pitkin' s right to participate, defend Pitkin, its elected officials and trustees, for the willful or wanton negligent performance by the Ctty of the work done in fulfillment of the terms of this Agreement. It is agreed that the City will be responsible for primary loss investigation, defense and judgment costs where this Agreement of indemnity applies. This Agreement shall be construed and/ or interpreted to require and/or provide for indemnification of the City by Pitkin for any claimed or caused injury to any person and/ or any property damage whatsoever which is caused or claimed to be caused by the call taker, dispatcher, EMT, paramedic or other person be he/she/they a Pitkin employee, agent or another person that aids another, attempts to aid another or otherwise renders aid or service or fails to aid another/render service after an EMD, which is the subject of any of the Case(s) that the City is reviewing in accordance with this Agreement. The City and Pitkin may asUrt the protection of the Colorado Governmental Immunity Act 24- 10-101, etseq., all as more particularly stated in Paragraph 16. 12. Records. The City shall maintain accurate records, and documents concerning the Cases that it is reviewing/commenting on, for Pitkin relating to this Agreement for a period of three( 3) years after the final Case is reviewed/reported to Pitkin. Pitkin shall have the right within the three ( 3) year period Co inspect the records and documents, upon demand, in a reasonable manner and at reasonable times. 13. Agreement Made in Colorado. The parties agree that this Agreement was made in accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to be exclusively in the courts of Mesa County, Colorado. 14. Attorney' s Fees. In the event that legal action is necessary to enforce any of the provisions of this Agreement beyond the arbitration described in Paragraph 8, the substantially prevailing party shall be entitled to its costs and reasonable attorney' s fees 15. Government Immunity. City and Pitkin each agree and understand that they are relying on and do not waive, by any provision of this Agreement, the monetary limitations or terms or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, 24- 10- 101, et seq., C. R.S., as from time to time amended, or otherwise available to the City or Pitkin or any of its officers, agents or employees. 16. Current Year Obligations. The parties acknowledge and agree that any payments provided for hereunder or requirements for future appropriations shall constitute only currently budgeted expenditures of Pitkin. Pitkin' s obligations under this Agreement are subject to Pdkin' s annual budget and appropriation of the sums necessary to pay the City for services set forth herein. No provisions of the Agreement shall constitute a mandatory charge or requirement in any ensuing fiscal year beyond the then 4 current fiscal year of Pitkin. No provision of the Agreement shall be construed or interpreted as creating a multiple-fiscal year direct or indirect debt or other financial obligation of Pitkin within the meaning of any constitutional or statutory debt limitation. This Agreement shall not directly or indirectly obligate Pitkin to make any payments beyond those appropriated for Pitkin' s then current fiscal year. No provisions of this Agreement shall be construed to pledge or create a lien on any class or source of Pitkin' s moneys, nor shall any provision of this Agreement restrict the future issuance of Pitkin' s bonds or any obligations payable from any class or source of Pitkin' s money. 17. Notice. Any written notice required by this Agreement shall be deemed delivered through any of the following: ( I) hand delivery to the person at the address below; ( 2) delivery by facsimile with confirmation of receipt to the fax number below; or( 3) within three( 3) days of being sent certified first class mail, postage prepaid, return receipt requested addressed as follows: A. To: Pitkin County with conies to. Dispatch Director Pitkin County Pitkin County Attorney' s Office Regional Emergency Dispatch 530 E. Main Street,# 302 Center Aspen, Colorado 81611 Fax:( 970) 920-5198 506 E. Main St., Dept. C Aspen, Colorado 81611 970.920.5310 tel 970.920.5339 fax B. To: Grand Junction Regional Communications Center Ann: Monica Million with copy to: 555 Ute Avenue Grand Junction, CO 81501 970549. 5403 tel City Attorney 250 N. 5th Street Grand Junction, CO 81501 970349. 5002 IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS Agreement as of the date first set out herein above. TR GRA ITY OF GRAND JUNCTION, JUNCTION REGIONAL COMMUNICATION CENTER By. Tide: Z O' 1bt L` IR1 c 1 tts. r... a- 3// p y 0 Date 5 EXHIBIT A Pitkin County(" Pitkin") and the City of Grand Junction by and through the Grand Junction Regional Communications Center(" City") Emergency Medial Dispatch Quality Assurance Service Agreement Scope of Work I. The City will review, audit and examine the audio recordings ofemergency medical dispatch calls(" Cases") completed by Pitkin through the Pitkin County Regional Emergency Dispatch Center. The purpose of the City' s work will be to determine reasonable compliance with the protocol( s) used by Pitkin for its Emergency Medical Dispatch( EMD") policies and procedures. 2. Pitkin subscribes to the International Academies of Emergency Dispatch EMD priority dispatching program, and for each medical call Pitkin staff asks a series of key questions and provides pre- arrival instructions for medical emergencies that Pitkin' s dispatchers receive over the telephone. The City will review up to 500 Cases for reasonable compliance with the medically approved, standardized protocols adopted by Pitkin for managing the emergency services it provides. 3. In 2014 the Colorado legislature adopted SB 14- 162 now codified at C. R.S. 25- 3. 5- 901 et. Seq., which among other things requires emergency medical service providers to institute a quality assurance/quality management program to conduct quality management assessments of the services provided. Pitkin is hiring the City to provide such services for it. 4. Pitkin is committed to providing the highest degree of quality standardized emergency dispatch response- phone directed care that it can provide to its community and in accordance with Colorado law, specifically C. R. S. 25- 3. 5- 904, will have the City review its Cases for a) reasonable compliance with treatment protocols and pre-hospital care and; 14 peer review of qualifications, competence and appropriateness of care, all as more particularly defined by law. 5. The City shall report to Pitkin, as it becomes aware, problems, risks and potential risks. The report( s) shall be in the form of spreadsheets indicating the monthly specifics of each reviewed call by employee name with number of calls reviewed. The form will be used to identify the specific area of protocol that resulted in the non-compliance, and potential problem( s)/ pattern of problem( s). ( Form should include a description of the call/ Case without disclosing privileged information.) From this data the analyst will assist the supervision in the agency in the development of possible corrective action plans, including education, prevention means of minimizing potential problems, problems or risk and a process for follow-up for Pitkin. 6. all data The City will work within Pitkin' s record keeping system at their agency and will be maintained by the originating agency. AGENDA ITEM SUMMARY REGULAR MEETING DATE: February 14, 2018 AGENDA ITEM TITLE: 1st Reading, A Resolution of the Board of County Commissioners (“BOCC”) of Pitkin County, Colorado, Providing Supplemental Appropriations to the 2018 Budget and Amending the 2018 Budget for the Co-Responder Grant STAFF RESPONSIBLE: Connie Baker ISSUE STATEMENT: This budget resolution is required to formally adopt the budget supplemental request presented to the BOCC during yesterday’s work session. BACKGROUND: County departments may submit supplemental requests when a grant has become available, a new project or acquisition has been identified, or when the scope of an existing project has changed significantly. Pitkin County, along with the Pitkin County Mental Health Strategic Funders, was recently awarded a grant from the Colorado Department of Human Services Office of Behavioral Health. A budget resolution and public hearing is required to legally change the 2018 budget balances and allow the County to spend the grant monies. LINK TO STRATEGIC PLAN: Livable and Supportive Community: 1) A sense of personal and community safety, and Prosperous Economy: 1) Affordable and quality health care options KEY DISCUSSION ITEMS: The Board should be familiar with this item from yesterday’s work session and presentation. Should supplemental appropriations and budget amendments to the 2018 Pitkin County budget be approved as proposed? BUDGETARY IMPACT: This budget resolution increases the Public Health Fund’s 2018 budgeted expenditures by $351,803, offset by an increase in revenues of $389,021, for a net increase in fund balance of $37,218. RECOMMENDED BOCC ACTION: Approve and adopt the attached budget resolution at first reading on February 14, 2018 and set for second reading and public hearing on February 28, 2018. ATTACHMENTS: 1. A Resolution of the Board of County Commissioners (“BOCC”) of Pitkin County, Colorado Providing Supplemental Appropriations to the 2018 Budget and Amending the 2018 Budget for the Co-Responder Grant A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS ("BOCC") OF PITKIN COUNTY, COLORADO, PROVIDING SUPPLEMENTAL APPROPRIATIONS TO THE 2018 BUDGET AND AMENDING THE 2018 BUDGET FOR THE CO-RESPONDER GRANT RESOLUTION NO. _______, 2018 RECITALS: 1) Pursuant to Section 2.8.3 (Actions) of the Pitkin County Home Rule Charter (“HRC”) official action by formal resolution shall be required for all actions of the Board not requiring ordinance power on matters of significant importance affecting citizens; and 2) Unanticipated grant revenues will be received in 2018 that were not appropriated, and will be used to offset costs of the project for which they were collected; and 3) Upon due and proper notice, published in accordance with the law, said supplemental budget was open for inspection by the public at a designated place, a public hearing was held on February 28, 2018 and interested citizens were given an opportunity to file or register any objections to said supplemental budget. 4) The BOCC finds that it is in the best interests of the citizens of Pitkin County to approve this Resolution. NOW THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Pitkin County, Colorado that it hereby adopts a resolution providing supplemental appropriations to the 2018 budget and amending the 2018 budget as shown below and authorizes the Chair to sign the Resolution upon the satisfaction of the County Attorney as to form, execute any other associated documents necessary to complete this matter. BUDGET APPROPRIATIONS: 2018 Budget Program Manager (Salary + Benefits) Health Insurance Fitness/Wellness Contracted Services (M.H. Provider) Professional Services (Training & Consultant Education & Training Routine Travel Phones Office Supplies Furniture Computers Printers Office of Behavioral Health Grant CHANGE IN FUND BALANCE: PUBLIC HEALTH FUND NET INCREASE/(DECREASE) FUND BALANCE - Revenue Change 389,021 389,021 389,021 Expenditure Change 63,482 14,100 900 146,781 74,082 11,939 16,596 2,528 1,800 4,800 14,515 280 351,803 351,803 37,218 Revised Budget 389,021 63,482 14,100 900 146,781 74,082 11,939 16,596 2,528 1,800 4,800 14,515 280 TOTAL FOR RESOLUTION Revenue Change PUBLIC HEALTH FUND TOTAL TOTAL NET INCREASE PUBLIC HEALTH FUND BALANCE 389,021 Expenditure Change 351,803 37,218 INTRODUCED AND FIRST READ ON THE 14TH DAY OF FEBRUARY, 2018 AND SET FOR SECOND READING AND PUBLIC HEARING ON THE 28TH DAY OF FEBRUARY, 2018. NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE RESOLUTION PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE ______ DAY OF _______________, 2018. NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE RESOLUTION POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com) ON THE ______ DAY OF _______________, 2018. ADOPTED AFTER FINAL READING AND PUBLIC HEARING ON THE 28TH DAY OF FEBRUARY, 2018. PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION, IN THE ASPEN TIMES WEEKLY ON THE ______ DAY OF _______________, 2018. POSTED BY TITLE AND SHORT SUMMARY ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com) ON THE ______ DAY OF _______________, 2018. ATTEST: Jeanette Jones Deputy County Clerk BOARD OF COUNTY COMMISSIONERS _ Patti Clapper, Chair DATE: APPROVED AS TO FORM: MANAGER APPROVAL: John Ely, County Attorney _ Jon Peacock, County Manager _ AGENDA ITEM SUMMARY REGULAR MEETING DATE: February 14, 2018 AGENDA ITEM TITLE: An Emergency Ordinance of the Board of County Commissioners of Pitkin County, Colorado, Authorizing an Amendment to Title 6 Section 6.48.070(C)(15) and 6.49.070(C)(15) and (16) of the Pitkin County Code (Marijuana Regulations) Extending the Prohibition of Issuance of Marijuana Licenses in Certain Caucus Areas until May 15, 2018 STAFF RESPONSIBLE: Jeanette Jones ISSUE STATEMENT: Shall the Board of County Commissioners extend the prohibition on issuance of marijuana licenses in the Woody Creek, Emma, Snowmass Capitol Creek, and the Frying Pan Caucus areas, and any marijuana retail store licenses in the Redstone Village area until May 15, 2018. BACKGROUND: Pursuant to the most recent Ordinance No. 002-2015 regulating the licensing of retail and medical marijuana establishments in certain Caucus areas, the prohibition on issuance of licenses is set to expire on February 15, 2018. On February 15, 2017, the attorney’s office sent out a letter to all of the Caucuses listed and not listed in the ordinance, notifying them of the expiration date and the intent of the BOCC to revisit the exclusions by February 15, 2018. As of January 30th of this year, there was only one response received, which was from the Woody Creek Caucus. Therefore, staff reached out to the individual Caucus representatives once again, and received the following responses: Woody Creek Caucus: They would like the prohibition of issuance of any marijuana licenses in their Caucus boundary to continue. Emma Caucus: There is a prohibition in their Master Plan and they would like that carried forward to the regulations. Snowmass Capitol Creek Caucus: They would like to take the matter to their board meeting on February 20th. Their Master Plan states no retail sales and cultivation would require special review. Upper Snowmass Creek Caucus: Their survey showed 84% of respondents “strongly agreed that the grow, packaging, product infusion, testing and sales of marijuana should be prohibited within the Caucus boundaries” – 4% strongly disagreed with the statement; 10% had no opinion, and 2% somewhat agreed with the statement. Their master plan reflects this underlined statement. 8th Crystal River Caucus: They would like to take the matter to their membership on March and asked for an extension of the prohibition. The following caucus areas have not responded as of the time this memo was prepared: Frying Pan Caucus, East of Aspen Caucus, Castle/Maroon Creek Caucus and the Maroon Creek Caucus In order to allow the Crystal River Caucus, the Snowmass Capitol Creek Caucus, and other Caucuses (if they so choose) an opportunity to place this matter on their respective agendas in the next few weeks, staff is recommending that the prohibition on issuance of any new licenses be extended to May 15, 2018. If the board extends the prohibition to this date, staff will compile the Caucus’ responses and schedule work session time after the last Caucus meeting in March to discuss further prohibition and/or any direction from the board as it pertains to this matter. Further, staff will keep all the Caucuses updated with respect to BOCC consideration of this ordinance as well as any future ordinances that the board may direct staff to bring forward, including dates and times of all public hearings. KEY DISCUSSION ITEMS: Whether or not to extend the prohibition on issuance of any new marijuana licenses to May 15, 2018 or another date as determined by the board. BUDGETARY IMPACT: None RECOMMENDED BOCC ACTION: Approve the Ordinance as an emergency and set for a confirmatory public hearing on February 24, 2018. ATTACHMENTS: 1) Ordinance 2) Amendments to Sections 6.48 and 6.49 (part) of Title 6, Marijuana Regulations 3) County Attorney’s letter of February 15, 2017 AN EMERGENCY ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, AMENDING TITLE 6 SECTIONS 6.48.070(C)(15) AND 6.49.070(C)(15)AND(16) OF THE PITKIN COUNTY CODE (MARIJUANA REGULATIONS) EXTENDING THE PROHIBITION OF ISSUANCE OF LICENSES IN CERTAIN CAUCUS AREAS UNTIL MAY 15, 2018 ORDINANCE NO. ___________-2018 RECITALS: 1. Pursuant to 30-35-301 C.R.S., the Board of County Commissioners (“BOCC”) of Home Rule Counties 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 2.8.2 of the Home Rule Charter (“HRC”), the Board of County Commissioners is authorized to take official action by Emergency Ordinance for certain matters where action is prescribed pursuant to the Colorado Revised Statues as amended. 3. Pursuant to Ordinance No.002-2015, a moratorium was re-established prohibiting issuance of marijuana licenses in the Snowmass-Capitol, Frying Pan, Woody Creek and Emma Caucus areas and any marijuana retail store license in the Town of Redstone (Village Commercial District) in the Crystal River Caucus until February 15, 2018. 4. Pursuant to Resolution No.107-2016, the Upper Snowmass Creek Caucus was formed after Ordinance 002-2015 went into effect. 5. Pursuant to Resolution No. 037-2015, the Maroon Creek Caucus was formed after Ordnance No. 002-2015 went into effect. 6. The BOCC has determined that in order for all caucus representatives to have an opportunity to take this matter to their respective caucus membership for discussion that it would be appropriate to extend the moratorium for a three-month period until May 15, 2018. 7. The BOCC finds that adoption of this ordinance is necessary for the immediate preservation of the public health, safety and welfare of the citizens of Pitkin County and therefore, declares this ordinance and legislation to be effective immediately pursuant to HRC Section 2.8.2. NOW, THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Pitkin County, Colorado that it hereby adopts an Emergency Ordinance of the Board of County Commissioners of Pitkin County, Colorado, Amending Title 6 of the Pitkin County Code (Marijuana Regulations) Extending the Prohibition of Issuance of Licenses in Certain Caucus Areas until May 15, 2018 and authorizes the Chair or the Chair’s designee to sign the Ordinance. INTRODUCED, READ AND ADOPTED AS AN EMERGENCY ORDINANCE ON THE ______ DAY OF _______________ 2018 AND SET FOR CONFIRMATORY PUBLIC HEARING ON THE __________DAY OF ____________, 2018. NOTICE OF CONFIRMATORY PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE EMERGENCY ORDINANCE PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE _______ DAY OF __________________ 2018. NOTICE OF CONFIRMATORY PUBLIC HEARING AND THE FULL TEXT OF THE EMERGENCY ORDINANCE POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE www.pitkincounty.com ON THE ______DAY OF _______________ 2018. CONFIRMED AT A PUBLIC HEARING ON THE ______ DAY OF _______________ 2018. PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER CONFIRMATORY PUBLIC HEARING, IN THE ASPEN TIMES WEEKLY ON THE __________DAY OF ______________, 2018. POSTED BY TITLE AND SHORT SUMMARY ON THE OFFICIAL PITKIN COUNTY WEBSITE www.pitkincounty.com ON THE ______DAY OF_______________ 2018. ATTEST: BOARD OF COUNTY COMMISSIONERS By _________________________ Jeanette Jones Deputy County Clerk By: _____________________________ Patti Clapper, Chair Date: ______________ APPROVED AS TO FORM: MANAGER APPROVAL ___________________________ John Ely, County Attorney _________________________________ Jon Peacock, County Manager 6.48.070 (C)(16) Retail Marijuana Licensing Regulations 16. A license will not be issued for any type of retail marijuana establishment in the following Caucus Areas: Snowmass-Capitol, Frying Pan, Woody Creek and Emma. A license for a retail marijuana store will not be issued within the Town of Redstone (Village Commercial District) in the Crystal River Caucus. The prohibition on the issuance of licenses described in this paragraph shall remain in place until February 15 May 15, 2018. All applications for any type of retail marijuana establishment shall be referred for recommendation and comment to the caucus of the proposed license facility and any other caucus that has a reasonable expectation of experiencing impacts related to the issuance of the license. Section 6.49.070(C)(15) and (16) Medical Marijuana Licensing Regulations 15. A license will note be issued for any medical marijuana center, optional premises cultivation facility or medical marijuana-infused products manufacturing facility in the Frying Pan, Woody Creek, Emma and Snowmass Capitaol Creek Caucus area. A license will not be issued for a medical marijuana center in the Town of Redstone (Village Commercial Zone District). 16. A prohibition on the issuance of licenses as described in paragraph 15 above shall remain in place until February 15 May 15, 2018. All applications for any type of medical marijuana establishment shall be referred for recommendation and comment to the caucus of the proposed license facility and any other caucus that has a reasonable expectation of experiencing impacts related to the issuance of the license. PITKIN COUNTY ATTORNEY John M. Ely County Attorney John.Ely@pitkincounty.com Laura C. Makar Assistant County Attorney Laura.Makar@pitkincounty.com Courthouse Annex Building 123 Emma Road, Suite 204 Basalt, Colorado 81621 Tel: (970) 920-5190 Fax: (970) 920-5198 Lisa MacDonald Jane Achey Paralegals Lisa.MacDonald@pitkincounty.com Jane.Achey@pitkincounty.com Richard Y. Neiley III Assistant County Attorney Richard.Neiley@pitkincounty.com February 15, 2017 TO: Pitkin County Caucuses via E-mail Mailing List Attached Re: Pitkin County Marijuana Regulations Dear Pitkin County Caucuses: Pursuant to Board of County Commissioners of Pitkin County (“BOCC”) Ordinance No. 2-2015 adopted on February 11, 2015 (a copy of which is attached hereto), retail and medical marijuana licensing exclusions recommended by certain caucuses and adopted by the BOCC are set to expire on February 15, 2018, subject to review. It was the direction of the BOCC that the caucuses be notified one-year in advance of their intent to revisit the exclusions for determination of whether or not to extend the exclusions or to modify them in some regard. I am writing at the direction of the BOCC to request the input and recommendations of the caucuses specifically concerning marijuana. If possible, recommendations should be forwarded to the County no later than the end of this year. If it is not possible to forward recommendations by the end of the year, please let us know. If any caucus is not able to decide on a recommendation to forward to the Commissioners, please be aware that no licenses for any marijuana activity shall be issued without a specific referral to affected caucuses. Please feel free to contact me by phone or email at john.ely@pitkincounty.com with any questions. Thank you for your time and consideration. PITKIN COUNTY ATTORNEY’S OFFICE Sincerely, John M. Ely County Attorney cc: Jeanette Jones, Pitkin County Licensing Authority Board of County Commissioners of Pitkin County PITKIN COUNTY CAUCUS MAILING LIST (LAST KNOWN CAUCUS CONTACT) Crystal River Caucus c/o Delia Malone and Tom Bleskan deliamalone@earthlink.net tbleskan@skybeam.com East of Aspen Caucus c/o Robert Oxenberg robertoxenberg@aol.com Emma Caucus c/o Liz Newman emmacaucus@gmail.com Frying Pan Valley Caucus c/o Dale Coombs dghorseoutfittin@aol.com Maroon Creek Caucus c/o Barbara Conviser barbaraconviser@aol.com Snowmass/Capitol Creek Caucus c/o John Clark johnclark7037@gmail.com Woody Creek Caucus c/o Linda Waag c/o Nancy MacKenzie lindawaag@gmail.com nancy_bill_mackenzie@yahoo.com Castle/Maroon Caucus c/o Joe Wells joewells@me.com Upper Snowmass Creek Caucus c/o Jan Martin janmartin23@gmail.com AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY AUTHORIZING AN AMENDMENT TO SECTIONS 6. 48. 070( C)( 16) AND 6. 49. 070( C)( 15) AND ( 16) OF THE PITKIN COUNTY CODE REGULATING THE LICENSING OF RETAIL AND MEDICAL MARIJUANA ESTABLISHMENTS IN CAUCUS AREAS ORDINANCE NO. 00 - 2015 RECITALS 1. The County' s Retail Marijuana Licensing Regulations were adopted into Section 6.48 of the Pitkin County Code ( the " Code") on February 12, 2014. 2. The County' s Medical Marijuana Licensing Regulations were adopted into Section 6. 49 of the Pitkin County Code ( the " Code") on July 9, 2014. 3. Sections 6. 48. 070( C)( 16) and 6. 49. 070( C)( 15) regulate retail and medical marijuana licensing within caucus areas of Pitkin County articulated by the recommendations of the caucuses. 4. Pursuant to the Code, the licensing regulations in Sections 6. 48. 070( C)( 16) and 6.49. 070(C)( 15) expire on February 12, 2015. This expiration date shall be amended to February 15, 2018. 5. The Board of County Commissioners of Pitkin County, Colorado wishes to amend Sections 6.48. 070( C)( 16) and 6.49.070( C)( 15) and ( 16) of the Pitkin County Code to reflect their consideration of the current recommendations of the caucuses in regard to the licensing of retail and medical marijuana establishments in their respective caucus areas as set forth in Exhibit 1 attached hereto. 6. The Board finds that adoption of this ordinance is necessary for the immediate preservation of the public health, safety and welfare of the citizens of Pitkin County and therefore declares this ordinance and legislation to be effective immediately upon adoption. NOW THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Pitkin County, Colorado that Sections 6. 48. 070( C)( 16) and 6.49. 070( C)( 15) and ( 16) of the Retail and Medical Marijuana Licensing Regulations of the Pitkin County Code are hereby amended as set forth in Exhibit 1 attached hereto. INTRODUCED, FIRST READ, AND SET FOR PUBLIC HEARING ON JANUARY 28, 2015. NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE ORDINANCE PUBLISHED IN THE ASPEN TIMES WEEKLY ON / — -;)— 1 2015. ORDINANCE Njjj°*- 2015 NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE ORDINANCE POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE ( www.aspenpitkin.com) ON i `/ 2015. ADOPTED AFTER FINAL READING AND PUBLIC HEARING ON FEBRUARY 11, 2015. PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION, IN THE r( ASPEN TIMES WEEKLY ON -/ 2015. POSTED ON THE OFFI / IAL PITKIN COUNTY WEBSITE ( www.aspenpitkin.com) ON THE 3 p e YlGr 015. THIS ORDINANCE IS EFFECTIVE ON FEBRUARY 11 2015. BOARD OF COUNTY COMMISSIONERS By: AG / /Steven F. Child, Chair Date: Z 2v APPROVED AS TO FORM: MANAGER APPROVAL John Ely, Co Jon Peacock, County Manager orney u/ 100.14: 11. 11Ifl Section 6. 48.070( C) Retail Marijuana Licensing Regulations 16. A license will not be issued for any type of retail marijuana establishment in the following Caucus Areas: Snowmass- Capitol, Frying Pan, Woody Creek and Emma. A license for a retail marijuana store will not be issued within the Town of Redstone ( Village Commercial District) in the Crystal River Caucus. The prohibition on the issuance of licenses described in this paragraph shall remain in place until February 15, 2018. All applications for any type of retail marijuana establishment shall be referred to the appropriate caucus for recommendation and comment. Section 6.49. 070( 0)( 15) and ( 16) Medical Marijuana Licensing Regulations 15. A license will not be issued for any medical marijuana center, optional premises cultivation facility or medical marijuana -infused products manufacturing facility in the Frying Pan, Woody Creek, Emma and Snowmass Capitol Creek caucus areas. A license will not be issued for a medical marijuana center in the Town of Redstone ( Village Commercial Zone District). 16. The prohibition on the issuance of licenses as described in paragraph 15 above shall remain in place until February 15, 2018. AGENDA ITEM SUMMARY REGULAR MEETING DATE: February 14, 2018 AGENDA ITEM TITLE: Resolution of the Board of County Commissioners (“BOCC”) of Pitkin County, Colorado Authorizing Approval of a Cable Franchise Agreement with Comcast of Colorado/Florida/Michigan/New Mexico/Pennsylvania/Washington, LLC STAFF RESPONSIBLE: Phylis Mattice, Kara Silbernagel ISSUE STATEMENT: Pitkin County’s Franchise Agreement with Comcast expired December 31, 2016 and continues until a new agreement is reached. Throughout 2017, Pitkin County, in partnership with the City of Aspen, Town of Snowmass Village and Town of Basalt negotiated the agreement before you. Change to Section 10.7 to reference the International Building Code, rather than Uniform Building Code. BACKGROUND: Government television is critical to the county's community involvement efforts. It is not only used to televise Board and Council regular meetings and/or work sessions, it is used to raise awareness about a myriad of county programs and the people who implement them. Federal Law requires cable providers to "meet the needs and interests of the communities in which they operate." The County has a regulatory role in ensuring the availability of cable service, technical capability and reliability of systems in its jurisdiction, the availability of local programming (including Public, Educational and Government (PEG) Access programming) and quality customer service. In return, the cable providers secures rights-of-way for installing, constructing, repairing and replacing equipment necessary to provide cable services in our area. Under Colorado law, Franchise Agreements shall apply to cable services only and are not applicable to broadband services. Through the Franchise Agreement PEG stations are provided for the shared use of the jurisdictions a party to the agreements. CGTV - Channel 11 is shared by Pitkin County, the City of Aspen, Town of Snowmass and Town of Basalt. The Town of Basalt also televises live Council meetings on Channel 17. Channel 8 is a source of information about airline arrivals and departures at the Aspen/Pitkin County Airport. GrassRoots Channel 12 fulfills the public portion of the PEG with programming catering to a wide range of public interests. This Franchise Agreement adds 2 channels (station number yet to be determined) for High Definition broadcast. The first channel will be provided for GrassRoots within 120 days for the effective date of the agreement with a second channel being made available a year later for CGTV. LINK TO STRATEGIC PLAN: Livable and Supportive Community: #4) Access to recreation, education, arts and culture and #5) Improved community engagement and participation. KEY DISCUSSION ITEMS: BUDGETARY IMPACT: The Franchise Agreement provides a pass-through Franchise Fee to customers of 5% on Comcast services to the County which provides approximately $130,000 annually to the General Fund. In addition a $0.50 PEG fee is accessed to Pitkin County Comcast customers monthly to support equipment purchases for County broadcasts. The PEG fee collected annually is approximately $8,500. In addition, since Comcast does not provide on demand availability for PEG programming, Comcast and the four jurisdictions have agreed to a grant from Comcast in the amount of $20,000 ($5,000 per jurisdiction) for the purpose of web-based programming equipment in order to help facilitate putting more PEG programming online and available to anyone with an internet connection. RECOMMENDED BOCC ACTION: Approve upon second reading and public hearing. ATTACHMENTS:  Resolution Authorizing Approval of a Cable Franchise Agreement  Customer Service Standards  Final Agreement 10-09-2017 RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS (“BOCC”) OF PITKIN COUNTY, COLORADO AUTHORIZING APPROVAL OF A CABLE FRANCHISE AGREEMENT WITH COMCAST OF COLORADO/FLORIDA/MICHIGAN/NEW MEXICO/PENNSYLVANIA/WASHINGTON, LLC RESOLUTION NO. ______, 2018 RECITALS: 1. Pursuant to Section 2.8.3 (Actions) of the Pitkin County Home Rule Charter (“HRC”) official action by formal resolution shall be required for all actions of the Board not requiring ordinance power on matters of significant importance affecting citizens. 2. Pursuant to Section 30-35-201(25) of the Colorado Revised Statues, the County has the authority to grant franchises to companies to build and operate cable systems in the County. In consideration for a cable operator’s right to locate its facilities in the public rights of way in unincorporated areas, the County requires the cable operator to enter into a franchise agreement. 3. In 1999 Pitkin County entered into a Cable Franchise Agreement with TCI Cablevision of Northern New Jersey, Inc. d/b/a/ AT&T. In 2003 AT&T Broadband merged with Comcast Corporation resulting in a name change of our local cable operator to Comcast of Colorado/Florida ("Comcast"). Terms and conditions of the Agreement remained the same. 4. Per federal law, a cable operator is entitled to a franchise renewal if it has the legal, technical and financial ability to comply with a franchise agreement that meets the future cable-related needs of a community. In 2009 Pitkin County renewed its Cable Franchise Agreement with Comcast through December 31, 2017. The franchise continues to govern until a new franchise is entered. 5. Comcast of Colorado/Florida Inc is now Comcast of Colorado/Florida/Michigan/ New Mexico/Pennsylvania/Washington, LLC. 6. Pitkin County, City of Aspen, Town of Snowmass Village and the Town of Basalt broadcast on Public, Education and Government (PEG) channel 11 – CGTV and negotiated for the agreement jointly to the benefit of all jurisdictions. 7. The BOCC finds that it is in the best interests of the citizens of Pitkin County to approve this Resolution. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Pitkin County, Colorado that it hereby adopts a resolution authorizing approval of a Cable Franchise Agreement with Comcast of Colorado/Florida/Michigan/New Mexico/ Pennsylvania/Washington, LLC. and authorizes 1 the Chair to sign the Resolution and upon the satisfaction of the County Attorney as to form, execute any other associated documents necessary to complete this matter. INTRODUCED AND FIRST READ ON THE _______ DAY OF_______________, 2018 AND SET FOR SECOND READING AND PUBLIC HEARING ON THE ______DAY OF _______________ 2018. NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE RESOLUTION PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE _______ DAY OF _____________, 2018. NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE RESOLUTION POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com ) ON THE ______DAY OF _______________ 2018. ADOPTED AFTER FINAL READING AND PUBLIC HEARING ON THE ______ DAY OF _______________ 2018. PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION, IN THE ASPEN TIMES WEEKLY ON THE _____ DAY OF ____________, 2018. POSTED BY TITLE AND SHORT SUMMARY ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com ) ON THE ______DAY OF_______________ 2018. ATTEST: BOARD OF COUNTY COMMISSIONERS By _________________________ Jeanette Jones Deputy County Clerk By: _____________________________ Patti Clapper, Chair Date: ______________ APPROVED AS TO FORM: MANAGER APPROVAL ___________________________ John Ely, County Attorney _________________________________ Jon Peacock, County Manager 2 THE PITKIN COUNTY, COLORADO CUSTOMER SERVICE STANDARDS I. POLICY The Cable Operator should resolve citizen complaints without delay and interference from the Franchising Authority. Where a given complaint is not addressed by the Cable Operator to the citizen's satisfaction, the Franchising Authority should intervene. In addition, where a pattern of unremedied complaints or noncompliance with the Standards is identified, the Franchising Authority should prescribe a cure and establish a reasonable deadline for implementation of the cure. If the noncompliance is not cured within established deadlines, monetary sanctions should be imposed to encourage compliance and deter future non-compliance. These Standards are intended to be of general application, and are expected to be met under normal operating conditions; however, the Cable Operator shall be relieved of any obligations hereunder if it is unable to perform due to a region-wide natural emergency or in the event of force majeure affecting a significant portion of the franchise area. The Cable Operator is free to exceed these Standards to the benefit of its Customers and such shall be considered performance for the purposes of these Standards. These Standards supersede any contradictory or inconsistent provision in federal, state or local law (Source: 47 U.S.C. § 552(a)(1) and (d)), provided, however, that any provision in federal, state or local law, or in any original franchise agreement or renewal agreement, that imposes a higher obligation or requirement than is imposed by these Standards, shall not be considered contradictory or inconsistent with these Standards. In the event of a conflict between these Standards and a Franchise Agreement, the Franchise Agreement shall control. These Standards apply to the provision of any Cable Service, provided by a Cable Operator over a Cable System, within the unincorporated areas of Pitkin County, Colorado. II. DEFINITIONS When used in these Customer Service Standards (the "Standards"), the following words, phrases, and terms shall have the meanings given below. "Adoption" shall mean the process necessary to formally enact the Standards within the Franchising Authority's jurisdiction under applicable ordinances and laws. "Affiliate" shall mean any person or entity that is owned or controlled by, or under common ownership or control with, a Cable Operator, and provides any Cable Service or Other Service. “Applicable Law” means, with respect to these standards and any Cable Operator’s privacy policies, any statute, ordinance, judicial decision, executive order or regulation having the force and effect of law, that determines the legal standing of a case or issue. "Cable Operator" shall mean any person or group of persons (A) who provides Cable Service over a Cable System and directly or through one or more affiliates owns a significant interest in such cable system, or (B) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a Cable System. Source: 47 U.S.C. § 522(5). “Cable Service” shall mean (A) the one-way transmission to subscribers of (i) video programming, or (ii) other programming service, and (B) subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service. Source: 47 U.S.C. § 522(6). For purposes of this definition, 1 “video programming” is programming provided by, or generally considered comparable to programming provided by a television broadcast station. Source: 47 U.S.C. § 522(20). “Other programming service” is information that a Cable Operator makes available to all subscribers generally. Source: 47 U.S.C. § 522(14). “Cable System” shall mean a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide Cable Service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include (A) a facility that serves only to retransmit the televisions signals of one or more television broadcast stations, or (B) a facility that serves subscribers without using any public right of way. Source: 47 U.S.C. § 522(7). “Contractor” shall mean a person or entity that agrees by contract to furnish materials or perform services for another at a specified consideration. “County” shall mean Pitkin County, Colorado. "Customer" shall mean any person who receives any Cable Service from a Cable Operator. "Customer Service Representative" (or "CSR") shall mean any person employed with or under contract or subcontract to a Cable Operator to assist, or provide service to, customers, whether by telephone, writing service or installation orders, answering customers' questions in person, receiving and processing payments, or performing any other customer service-related tasks. “Escalated complaint” shall mean a complaint that is referred to a Cable Operator by the Franchising Authority. "Franchising Authority" shall mean the County. "Necessary" shall mean required or indispensable. "Non-cable-related purpose" shall mean any purpose that is not necessary to render or conduct a legitimate business activity related to a Cable Service or Other Service provided by a Cable Operator to a Customer. Market research, telemarketing, and other marketing of services or products that are not related to a Cable Service or Other Service provided by a Cable Operator to a Customer shall be considered Non-cable-related purposes. “Normal business hours” shall mean those hours during which most similar businesses in the community are open to serve customers. In all cases, “normal business hours” must include at least some evening hours one night per week, and include some weekend hours. Source: 47 C.F.R. § 76.309. “Normal operating conditions” shall mean those service conditions which are within the control of a Cable Operator. Conditions which are not within the control of a Cable Operator include, but are not necessarily limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Conditions which are ordinarily within the control of a Cable Operator include, but are not necessarily limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods and maintenance or upgrade to the Cable System. “Other Service(s)” shall mean any wire or radio communications service provided using any of the facilities of a Cable Operator that are used in the provision of Cable Service. "Personally Identifiable Information" shall mean specific information about an identified Customer, including, but not be limited to, a Customer's (a) login information for the use of Cable Service and management of a Customer’s Cable Service account, (b) extent of viewing of video programming or Other Services, (c) shopping choices, (d) interests and opinions, (e) energy uses, (f) medical information, (g) banking data or information, or (h) any other personal or private information. "Personally Identifiable Information" shall not mean any aggregate 2 information about Customers which does not identify particular persons, or information gathered by a Cable Operator necessary to install, repair or service equipment or Cable System facilities at a Customer’s premises. “Service interruption” or “interruption” shall mean (i) the loss or substantial impairment of picture and/or sound on one or more cable television channels. “Service outage” or “outage” shall mean a loss or substantial impairment in reception on all channels. “Subcontractor” shall mean a person or entity that enters into a contract to perform part or all of the obligations of another's contract. “Writing” or “written” as the term applies to notification shall include electronic communications. Any terms not specifically defined in these Standards shall be given their ordinary meaning, or where otherwise defined in applicable federal law, such terms shall be interpreted consistent with those definitions. III. CUSTOMER SERVICE A. Courtesy Cable Operator employees, contractors and subcontractors shall be courteous, knowledgeable and helpful and shall provide effective and satisfactory service in all contacts with customers. B. Accessibility 1. A Cable Operator shall provide customer service centers/business offices (“Service Centers”) which are conveniently located, and which are open during Normal Business Hours. Service Centers shall be fully staffed with Customer Service Representatives offering the following services to Customers who come to the Service Center: bill payment, equipment exchange, processing of change of service requests, and response to Customer inquiries and request. Unless otherwise requested by the County, a Cable Operator shall post a sign at each Service Center, visible from the outside of the Service Center, advising Customers of its hours of operation and of the telephone number at which to contact the Cable Operator if the Service Center is not open at the times posted. The Cable Operator shall use commercially reasonable efforts to implement and promote “self-help” tools and technology, in order to respond to the growing demand of Customers who wish to interact with the Cable Operator on the Customer’s own terms and timeline and at their own convenience, without having to travel to a Service Center. Without limitation, examples of self-help tools or technology may include self-installation kits to Customers upon request; pre-paid mailers for the return of equipment upon Customer request; an automated phone option for Customer bill payments; and equipment exchanges at a Customer’s residence in the event of damaged equipment. A Cable Operator shall provide free exchanges of faulty equipment at the customer's address if the equipment has not been damaged in any manner due to the fault or negligence of the customer. 2. A Cable Operator shall maintain local telephone access lines that shall be available twenty-four (24) hours a day, seven (7) days a week for service/repair requests and billing/service inquiries. 3. A Cable Operator shall have dispatchers and technicians on call twenty-four (24) hours a day, seven (7) days a week, including legal holidays. 4. If a customer service telephone call is answered with a recorded message providing the customer with various menu options to address the customer’s concern, the recorded message must provide the customer the option to connect to and speak with a CSR within sixty (60) seconds of the commencement of the recording. During 3 Normal Business Hours, a Cable Operator shall retain sufficient customer service representatives and telephone line capacity to ensure that telephone calls to technical service/repair and billing/service inquiry lines are answered by a customer service representative within thirty (30) seconds or less from the time a customer chooses a menu option to speak directly with a CSR or chooses a menu option that pursuant to the automated voice message, leads to a direct connection with a CSR. Under normal operating conditions, this thirty (30) second telephone answer time requirement standard shall be met no less than ninety (90) percent of the time measured quarterly. 5. Under normal operating conditions, a customer shall not receive a busy signal more than three percent (3%) of the time. This standard shall be met ninety (90) percent or more of the time, measured quarterly. C. Responsiveness 1. Guaranteed Seven-Day Residential Installation a. A Cable Operator shall complete all standard residential installations or modifications to service requested by customers within seven (7) business days after the order is placed, unless a later date for installation is requested. "Standard" residential installations are those located up to one hundred twenty-five (125) feet from the existing distribution system. If the customer requests a nonstandard residential installation, or the Cable Operator determines that a nonstandard residential installation is required, the Cable Operator shall provide the customer in advance with a total installation cost estimate and an estimated date of completion. b. All underground cable drops to the home shall be buried at a depth of no less than twelve inches (12"), or such other depth as may be required by the Franchise Agreement or local code provisions, or if there are no applicable Franchise or code requirements, at such other depths as may be agreed to by the parties if other construction concerns preclude the twelve inch requirement , and within no more than one calendar week from the initial installation, or at a time mutually agreed upon between the Cable Operator and the customer. 2. Residential Installation and Service Appointments a. The “appointment window” alternatives for specific installations, service calls, and/or other installation activities will be either a specific time, or at a maximum, a four (4) hour time block between the hours of 8:00 a.m. and 6:00 p.m., six (6) days per week. A Cable Operator may schedule service calls and other installation activities outside of the above days and hours for the express convenience of customers. For purposes of this subsection “appointment window” means the period of time in which the representative of the Cable Operator must arrive at the customer’s location. b. A Cable Operator may not cancel an appointment with a customer after the close of business on the business day prior to the scheduled appointment, unless the customer’s issue has otherwise been resolved. c. If a Cable Operator is running late for an appointment with a customer and will not be able to keep the appointment as scheduled, the Cable Operator shall take reasonable efforts to contact the customer promptly, but in no event later than the end of the appointment window. The appointment will be rescheduled, as necessary at a time that is convenient to the customer, within Normal Business Hours or as may be otherwise agreed to between the customer and Cable Operator. d. A Cable Operator shall be deemed to have responded to a request for service under the provisions of this section when a technician arrives within the agreed upon time, and, if the customer is absent when the technician arrives, the technician leaves written notification of arrival and return time, and a copy of that notification is kept by the Cable Operator. In such circumstances, the Cable Operator shall contact the customer within forty-eight (48) hours. 4 3. Residential Service Interruptions a. In the event of system outages resulting from Cable Operator equipment failure, the Cable Operator shall correct such failure within 2 hours after the 3rd customer call is received. b. All other service interruptions resulting from Cable Operator equipment failure shall be corrected by the Cable Operator by the end of the next calendar day. c. Records of Complaints. i. A Cable Operator shall keep an accurate and comprehensive file of any complaints regarding the cable system or its operation of the cable system, in a manner consistent with the privacy rights of customers, and the Cable Operator's actions in response to those complaints. These files shall remain available for viewing by the Franchising Authority during normal business hours at the Cable Operator’s business office, and shall be retained by the Cable Operator for a period of at least three (3) years. ii. Upon written request a Cable Operator shall provide the Franchising Authority an executive summary quarterly, which shall include information concerning customer complaints referred by the Franchising Authority to the Grantee and any other requirements of a Franchise Agreement but no personally identifiable information. These summaries shall be provided within fifteen (15) days after the end of each quarter. Once a request is made, it need not be repeated and quarterly executive summaries shall be provided by the Cable Operator until notified in writing by the Franchising Authority that such summaries are no longer required. iii. Upon written request a summary of service requests, identifying the number and nature of the requests and their disposition, shall also be completed by the Cable Operator for each quarter and submitted to the Franchising Authority by the fifteenth (15th) day of the month after each calendar quarter. Once a request is made, it need not be repeated and quarterly summary of service requests shall be provided by the Cable Operator until notified in writing by the Franchising Authority that such summaries are no longer required. Complaints shall be broken out by the nature of the complaint and the type of Cable service subject to the complaint. d. Records of Service Interruptions and Outages. A Cable Operator shall maintain records of all outages and reported service interruptions. Such records shall indicate the type of cable service interrupted, including the reasons for the interruptions. A log of all service interruptions shall be maintained and provided to the Franchising Authority quarterly, upon written request, within fifteen (15) days after the end of each quarter. Such records shall be submitted to the Franchising Authority with the records identified in Section 3.c.ii above if so requested in writing, and shall be retained by the Cable Operator for a period of three (3) years. e. All service outages and interruptions for any cause beyond the control of the Cable Operator shall be corrected within thirty-six (36) hours, after the conditions beyond its control have been corrected. 4. TV Reception a. A Cable Operator shall provide clear television reception that meets or exceeds technical standards established by the United States Federal Communications Commission (the "FCC"). A Cable Operator shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Scheduled interruptions shall be preceded by notice and shall occur during periods of minimum use of the system, preferably between midnight and six a.m. (6:00 a.m.). 5 b. If a customer experiences poor video or audio reception attributable to a Cable Operator's equipment, the Cable Operator shall: i. Assess the problem within one (1) day of notification; ii. Communicate with the customer regarding the nature of the problem and the expected time for repair; iii. Complete the repair within two (2) days of assessing the problem unless circumstances exist that reasonably require additional time. c. If an appointment is necessary to address any video or audio reception problem, the customer may choose a block of time described in Section III.C.2.a. At the customer's request, the Cable Operator shall repair the problem at a later time convenient to the customer, during Normal Business Hours or at such other time as may be agreed to by the customer and Cable Operator. A Cable Operator shall maintain periodic communications with a customer during the time period in which problem ascertainment and repair are ongoing, so that the customer is advised of the status of the Cable Operator’s efforts to address the problem. 5. Problem Resolution A Cable Operator's customer service representatives shall have the authority to provide credit for interrupted service, to waive fees, to schedule service appointments and to change billing cycles, where appropriate. Any difficulties that cannot be resolved by the customer service representative shall be referred to the appropriate supervisor who shall contact the customer within four (4) hours and resolve the problem within forty eight (48) hours or within such other time frame as is acceptable to the customer and the Cable Operator. 6. Billing, Credits, and Refunds a. In addition to other options for payment of a customer’s service bill, a Cable Operator shall make available a telephone payment option where a customer without account irregularities can enter payment information through an automated system, without the necessity of speaking to a CSR. b. A Cable Operator shall allow at least thirty (30) days from the beginning date of the applicable service period for payment of a customer's service bill for that period. If a customer's service bill is not paid within that period of time the Cable Operator may apply an administrative fee to the customer's account. The administrative fee must reflect the average costs incurred by the Cable Operator in attempting to collect the past due payment in accordance with applicable law. If the customer's service bill is not paid within forty-five (45) days of the beginning date of the applicable service period, the Cable Operator may perform a "soft" disconnect of the customer's service. If a customer's service bill is not paid within fifty-two (52) days of the beginning date of the applicable service period, the Cable Operator may disconnect the customer's service, provided it has provided two (2) weeks notice to the customer that such disconnection may result. c. The Cable Operator shall issue a credit or refund to a customer within 30 days after determining the customer's entitlement to a credit or refund. d. Whenever the Cable Operator offers any promotional or specially priced service(s) its promotional materials shall clearly identify and explain the specific terms of the promotion, including but not limited to manner in which any payment credit will be applied. 7. Treatment of Property 6 To the extent that a Franchise Agreement does not contain the following procedures for treatment of property, Operator shall comply with the procedures set forth in this Section. a. A Cable Operator shall keep tree trimming to a minimum; trees and shrubs or other landscaping that are damaged by a Cable Operator, any employee or agent of a Cable Operator during installation or construction shall be restored to their prior condition or replaced within seven (7) days, unless seasonal conditions require a longer time, in which case such restoration or replacement shall be made within seven (7) days after conditions permit. Trees and shrubs on private property shall not be removed without the prior permission of the owner or legal tenant of the property on which they are located. This provision shall be in addition to, and shall not supersede, any requirement in any franchise agreement. b. A Cable Operator shall, at its own cost and expense, and in a manner approved by the property owner and the Franchising Authority, restore any private property to as good condition as before the work causing such disturbance was initiated. A Cable Operator shall repair, replace or compensate a property owner for any damage resulting from the Cable Operator's installation, construction, service or repair activities. If compensation is requested by the customer for damage caused by any Cable Operator activity, the Cable Operator shall reimburse the property owner one hundred (100) percent of the actual cost of the damage. c. Except in the case of an emergency involving public safety or service interruption to a large number of customers, a Cable Operator shall give reasonable notice to property owners or legal tenants prior to entering upon private premises, and the notice shall specify the work to be performed; provided that in the case of construction operations such notice shall be delivered or provided at least twenty-four (24) hours prior to entry, unless such notice is waived by the customer. For purposes of this subsection, “reasonable notice” shall be considered: i. For pedestal installation or similar major construction, seven (7) days. ii. For routine maintenance, such as adding or dropping service, tree trimming and the like, reasonable notice given the circumstances. Unless a Franchise Agreement has a different requirement, reasonable notice shall require, at a minimum, prior notice to a property owner or tenant, before entry is made onto that person’s property. iii. For emergency work a Cable Operator shall attempt to contact the property owner or legal tenant in person, and shall leave a door hanger notice in the event personal contact is not made. Door hangars must describe the issue and provide contact information where the property owner or tenant can receive more information about the emergency work. Nothing herein shall be construed as authorizing access or entry to private property, or any other property, where such right to access or entry is not otherwise provided by law. d. Cable Operator personnel shall clean all areas surrounding any work site and ensure that all cable materials have been disposed of properly. D. Services for Customers with Disabilities 1. For any customer with a disability, a Cable Operator shall deliver and pick up equipment at customers' homes at no charge unless the malfunction was caused by the actions of the customer. In the case of malfunctioning equipment, the technician shall provide replacement equipment, hook it up and ensure that it is working properly, and shall return the defective equipment to the Cable Operator. 2. A Cable Operator shall provide either TTY, TDD, TYY, VRS service or other similar service that are in compliance with the Americans With Disabilities Act and other applicable law, with trained operators who can 7 provide every type of assistance rendered by the Cable Operator's customer service representatives for any hearing-impaired customer at no charge. 3. A Cable Operator shall provide free use of a remote control unit to mobility-impaired (if disabled, in accordance with Section III.D.4) customers. 4. Any customer with a disability may request the special services described above by providing a Cable Operator with a letter from the customer's physician stating the need, or by making the request to the Cable Operator's installer or service technician, where the need for the special services can be visually confirmed. E. Cable Services Information 1. At any time a customer or prospective customer may request, a Cable Operator shall provide the following information, in clear, concise written form, easily accessible and located on Cable Operator’s website (and in Spanish, when requested by the customer): a. Products and services offered by the Cable Operator, including its channel lineup; b. The Cable Operator's complete range of service options and the prices for these services; c. The Cable Operator's billing, collection and disconnection policies; d. Privacy rights of customers; e. All applicable complaint procedures, including complaint forms and the telephone numbers and mailing addresses of the Cable Operator, and the FCC; f. Use and availability of parental control/lock out device; g. Special services for customers with disabilities; h. Days, times of operation, and locations of the service centers; 2. At a Customer’s request, a Cable Operator shall make available either a complete copy of these Standards and any other applicable customer service standards, or a summary of these Standards, in a format to be approved by the Franchising Authority, which shall include at a minimum, the URL address of a website containing these Standards in their entirety. If acceptable to a customer, Cable Operator may fulfill customer requests for any of the information listed in this Section by making the requested information available electronically, such as on a website or by electronic mail. 3. Upon written request, a Cable Operator shall meet annually with the Franchising Authority to review the format of the Cable Operator’s bills to customers. Whenever the Cable Operator makes substantial changes to its billing format, it will contact the Franchising Authority at least thirty (30) days prior to the time such changes are to be effective, in order to inform the Franchising Authority of such changes. 4. Copies of notices provided to the customer in accordance with subsection 5 below shall be filed (by fax or email acceptable) with the Franchising Authority. 5. A Cable Operator shall provide customers with written notification of any change in rates for nondiscretionary cable services, and for service tier changes that result in a deletion of programming from a customer’s service tier, at least thirty (30) days before the effective date of change. For purposes of this section, “nondiscretionary” 8 means the subscribed tier and any other Cable Services that a customer has subscribed to, at the time the change in rates are announced by the Cable Operator. 6. All officers, agents, and employees of the Cable Operator or its contractors or subcontractors who are in personal contact with customers and/or when working on public property, shall wear on their outer clothing identification cards bearing their name and photograph and identifying them as representatives of the Cable Operator. The Cable Operator shall account for all identification cards at all times. Every vehicle of the Cable Operator shall be clearly visually identified to the public as working for the Cable Operator. Whenever a Cable Operator work crew is in personal contact with customers or public employees, a supervisor must be able to communicate clearly with the customer or public employee. Every vehicle of a subcontractor or contractor shall be labeled with the name of the contractor and further identified as contracting or subcontracting for the Cable Operator. 7. Each CSR, technician or employee of the Cable Operator in each contact with a customer shall state the estimated cost of the service, repair, or installation orally prior to delivery of the service or before any work is performed, and shall provide the customer with an oral statement of the total charges before terminating the telephone call or before leaving the location at which the work was performed. A written estimate of the charges shall be provided to the customer before the actual work is performed. F. Customer Privacy 1. Cable Customer Privacy. In addition to complying with the requirements in this subsection, a Cable Operator shall fully comply with all obligations under 47 U.S.C. Section 551. 2. Collection and Use of Personally Identifiable Information. a. A Cable Operator shall not use the Cable System to collect, monitor or observe Personally Identifiable Information without the prior affirmative written or electronic consent of the Customer unless, and only to the extent that such information is: (i) used to detect unauthorized reception of cable communications, or (ii) necessary to render a Cable Service or Other Service provided by the Cable Operator to the Customer and as otherwise authorized by applicable law. b. A Cable Operator shall take such actions as are necessary using then-current industry standard practices to prevent any Affiliate from using the facilities of the Cable Operator in any manner, including, but not limited to, sending data or other signals through such facilities, to the extent such use will permit an Affiliate unauthorized access to Personally Identifiable Information on equipment of a Customer (regardless of whether such equipment is owned or leased by the Customer or provided by a Cable Operator) or on any of the facilities of the Cable Operator that are used in the provision of Cable Service. This subsection F.2.b shall not be interpreted to prohibit an Affiliate from obtaining access to Personally Identifiable Information to the extent otherwise permitted by this subsection F. c. A Cable Operator shall take such actions as are necessary using then-current industry standard practices to prevent a person or entity (other than an Affiliate) from using the facilities of the Cable Operator in any manner, including, but not limited to, sending data or other signals through such facilities, to the extent such use will permit such person or entity unauthorized access to Personally Identifiable Information on equipment of a Customer (regardless of whether such equipment is owned or leased by the Customer or provided by a Cable Operator) or on any of the facilities of the Cable Operator that are used in the provision of Cable Service. 3. Disclosure of Personally Identifiable Information. A Cable Operator shall not disclose Personally Identifiable Information without the prior affirmative written or electronic consent of the Customer, unless otherwise authorized by applicable law. 9 a. A minimum of thirty (30) days prior to making any disclosure of Personally Identifiable Information of any Customer for any Non-Cable related purpose as provided in this subsection F.3.a, where such Customer has not previously been provided the notice and choice provided for in subsection III.F.9, the Cable Operator shall notify each Customer (that the Cable Operator intends to disclose information about) of the Customer's right to prohibit the disclosure of such information for Non-cable related purposes. The notice to Customers may reference the Customer to his or her options to state a preference for disclosure or non-disclosure of certain information, as provided in subsection III.F.10. b. A Cable Operator may disclose Personally Identifiable Information only to the extent that it is necessary to render, or conduct a legitimate business activity related to, a Cable Service or Other Service provided by the Cable Operator to the Customer. c. To the extent authorized by applicable law, a Cable Operator may disclose Personally Identifiable Information pursuant to a subpoena, court order, warrant or other valid legal process authorizing such disclosure. 4. Access to Information. Any Personally Identifiable Information collected and maintained by a Cable Operator shall be made available for Customer examination within thirty (30) days of receiving a request by a Customer to examine such information about himself or herself at the local offices of the Cable Operator or other convenient place within the County designated by the Cable Operator, or electronically, such as over a website. Upon a reasonable showing by the Customer that such Personally Identifiable Information is inaccurate, a Cable Operator shall correct such information. 5. Privacy Notice to Customers a. A Cable Operator shall annually mail or provide a separate, written or electronic copy of the privacy statement to Customers consistent with 47 U.S.C. Section 551(a)(1), and shall provide a Customer a copy of such statement at the time the Cable Operator enters into an agreement with the Customer to provide Cable Service. The written notice shall be in a clear and conspicuous format, which at a minimum, shall be in a comparable font size to other general information provided to Customers about their account as it appears on either paper or electronic Customer communications. b. In or accompanying the statement required by subsection F.5.a, a Cable Operator shall state substantially the following message regarding the disclosure of Customer information: "Unless a Customer affirmatively consents electronically or in writing to the disclosure of personally identifiable information, any disclosure of personally identifiable information for purposes other than to the extent necessary to render, or conduct a legitimate business activity related to, a Cable Service or Other Service, is limited to: i. Disclosure pursuant to valid legal process authorized by applicable law. ii. Disclosure of the name and address of a Customer subscribing to any general programming tiers of service and other categories of Cable Services provided by the Cable Operator that do not directly or indirectly disclose: (A) A Customer's extent of viewing of a Cable Service or Other Service provided by the Cable Operator; (B) The extent of any other use by a Customer of a Cable Service; (C) The nature of any transactions made by a Customer over the Cable System; or (D) The nature of programming or websites that a Customer subscribes to or views (i.e., a Cable Operator may only disclose the fact that a person subscribes to a general tier of service, or a package of channels with the same type of programming), provided that with respect to the nature of websites subscribed to or viewed, these are limited to websites accessed by a Customer in connection with programming available from their account for Cable Services.” The notice shall also inform the Customers of their right to prohibit the disclosure of their names and addresses in accordance with subsection F.3.a. If a Customer exercises his or her right to prohibit the disclosure of name and address as provided in subsection F.3.a or this subsection, such prohibition against disclosure shall remain in 10 effect, unless and until the Customer subsequently changes their disclosure preferences as described in subsection F.9 below. 6. Privacy Reporting Requirements. The Cable Operator shall include in its regular periodic reports to the Franchising Authority required by its Franchise Agreement information summarizing: a. The type of Personally Identifiable Information that was actually collected or disclosed by Cable Operator during the reporting period; b. For each type of Personally Identifiable Information collected or disclosed, a statement from an authorized representative of the Cable Operator certifying that the Personally Identifiable Information collected or disclosed was: (A) collected or disclosed to the extent Necessary to render, or conduct a legitimate business activity related to, a Cable Service or Other Service provided by the Cable Operator; (B) used to the extent Necessary to detect unauthorized reception of cable communications: (C) disclosed pursuant to valid legal process authorized by applicable law; or (D) a disclosure of Personally Identifiable Information of particular subscribers, but only to the extent affirmatively consented to by such subscribers in writing or electronically, or as otherwise authorized by applicable law. c. The standard industrial classification (SIC) codes or comparable identifiers pertaining to any entities to whom such Personally Identifiable Information was disclosed, except that a Cable Operator need not provide the name of any court or governmental entity to which such disclosure was made pursuant to valid legal process authorized by applicable law; d. The general measures that have been taken to prevent the unauthorized access to Personally Identifiable Information by a person other than the Customer or the Cable Operator. A Cable Operator shall meet with Franchising Authority if requested to discuss technology used to prohibit unauthorized access to Personally Identifiable Information by any means. 7. Nothing in this subsection III.F shall be construed to prevent the Franchising Authority from obtaining Personally Identifiable Information to the extent not prohibited by Section 631 of the Communications Act, 47 U.S.C. Section 551 and applicable laws. 8. Destruction of Personally Identifiable Information. A Cable Operator shall destroy any Personally Identifiable Information if the information is no longer necessary for the purpose for which it was collected and there are no pending requests or orders for access to such information under subsection 4 of this subsection III.F, pursuant to a court order or other valid legal process, or pursuant to applicable law. 9. Notice and Choice for Customers. The Cable Operator shall at all times make available to Customers one or more methods for Customers to use to prohibit or limit disclosures, or permit or release disclosures, as provided for in this subsection III.F. These methods may include, for example, online website “preference center” features, automated toll-free telephone systems, live toll-free telephone interactions with customer service agents, in-person interactions with customer service personnel, regular mail methods such as a postage paid, self-addressed post card, an insert included with the Customer’s monthly bill for Cable Service, the privacy notice specified in subsection III.F.5, or such other comparable methods as may be provided by the Cable Operator. Website “preference center” features shall be easily identifiable and navigable by Customers, and shall be in a comparable size font as other billing information provided to Customers on a Cable Operator’s website. A Customer who provides the Cable Operator with permission to disclose Personally Identifiable Information through any of the methods offered by a Cable Operator shall be provided follow-up notice, no less than annually, of the Customer’s right to prohibit these disclosures and the options for the Customer to express his or her preference regarding disclosures. Such notice shall, at a minimum, be provided by an insert in the Cable Operator’s bill (or other direct mail piece) to the Customer or a notice or message printed on the Cable Operator’s bill to the Customer, and on the Cable Operator’s website when a Customer logs in to view his or her Cable Service account options. The form of such notice shall also be provided on an annual basis to the Franchising Authority. These methods of 11 notification to Customers may also include other comparable methods as submitted by the Cable Operator and approved by the Franchising Authority in its reasonable discretion. G. Safety A Cable Operator shall install and locate its facilities, cable system, and equipment in compliance with all federal, state, local, and company safety standards, and in such manner as shall not unduly interfere with or endanger persons or property. Whenever a Cable Operator receives notice that an unsafe condition exists with respect to its equipment, the Cable Operator shall investigate such condition immediately, and shall take such measures as are necessary to remove or eliminate any unsafe condition. H. Cancellation of New Services In the event that a new customer requests installation of Cable Service and is unsatisfied with their initial Cable Service, and provided that the customer so notifies the Cable Operator of their dissatisfaction within 30 days of initial installation, then such customer can request disconnection of Cable Service within 30 days of initial installation, and the Cable Operator shall provide a credit to the customer’s account consistent with this Section. The customer will be required to return all equipment in good working order; provided such equipment is returned in such order, then the Cable Operator shall refund the monthly recurring fee for the new customer’s first 30 days of Cable Service and any charges paid for installation. This provision does not apply to existing customers who request upgrades to their Cable Service, to discretionary Cable Service such as PPV or movies purchased and viewed On Demand, or to customer moves and/or transfers of Cable Service. The service credit shall be provided in the next billing cycle. IV. COMPLAINT PROCEDURE A. Complaints to a Cable Operator 1. A Cable Operator shall establish written procedures for receiving, acting upon, and resolving customer complaints, and crediting customer accounts and shall have such procedures printed and disseminated at the Cable Operator's sole expense, consistent with Section III.E.1.e of these Standards. 2. Said written procedures shall prescribe a simple manner in which any customer may submit a complaint by telephone or in writing to a Cable Operator that it has violated any provision of these Customer Service Standards, any terms or conditions of the customer's contract with the Cable Operator, or reasonable business practices. If a representative of the Franchising Authority notifies the Cable Operator of a customer complaint that has not previously been made by the customer to the Cable Operator, the complaint shall be deemed to have been made by the customer as of the date of the Franchising Authority’s notice to the Cable Operator. 3. At the conclusion of the Cable Operator's investigation of a customer complaint, but in no more than ten (10) calendar days after receiving the complaint, the Cable Operator shall notify the customer of the results of its investigation and its proposed action or credit. 4. A Cable Operator shall also notify the customer of the customer's right to file a complaint with the Franchising Authority in the event the customer is dissatisfied with the Cable Operator's decision, and shall thoroughly explain the necessary procedures for filing such complaint with the Franchising Authority. 5. A Cable Operator shall immediately report all customer Escalated complaints that it does not find valid to the Franchising Authority. 6. A Cable Operator's complaint procedures shall be filed with the Franchising Authority prior to implementation. 12 B. Complaints to the Franchising Authority 1. Any customer who is dissatisfied with any proposed decision of the Cable Operator or who has not received a decision within the time period set forth below shall be entitled to have the complaint reviewed by the Franchising Authority. 2. The customer may initiate the review either by calling the Franchising Authority or by filing a written complaint together with the Cable Operator's written decision, if any, with the Franchising Authority. 3. The customer shall make such filing and notification within twenty (20) days of receipt of the Cable Operator's decision or, if no decision has been provided, within thirty (30) days after filing the original complaint with the Cable Operator. 4. If the Franchising Authority decides that further evidence is warranted, the Franchising Authority shall require the Cable Operator and the customer to submit, within ten (10) days of notice thereof, a written statement of the facts and arguments in support of their respective positions. 5. The Cable Operator and the customer shall produce any additional evidence, including any reports from the Cable Operator, which the Franchising Authority may deem necessary to an understanding and determination of the complaint. 6. The Franchising Authority shall issue a determination within fifteen (15) days of receiving the customer complaint, or after examining the materials submitted, setting forth its basis for the determination. 7. The Franchising Authority may extend these time limits for reasonable cause and may intercede and attempt to negotiate an informal resolution. C. Security Fund or Letter of Credit A Cable operator shall comply with any Franchise Agreement regarding Letters of Credit. If a Franchise Agreement is silent on Letter of Credit the following shall apply: 1. Within thirty (30) days of the written notification to a Cable Operator by the Franchising Authority that an alleged Franchise violation exists, a Cable Operator shall deposit with an escrow agent approved by the Franchising Authority fifty thousand dollars ($50,000) or, in the sole discretion of the Franchising Authority, such lesser amount as the Franchising Authority deems reasonable to protect subscribers within its jurisdiction. Alternatively, at the Cable Operator’s discretion, it may provide to the Franchising Authority an irrevocable letter of credit in the same amount. The escrowed funds or letter of credit shall constitute the "Security Fund" for ensuring compliance with these Standards for the benefit of the Franchising Authority. The escrowed funds or letter of credit shall be maintained by a Cable Operator at the amount initially required, even if amounts are withdrawn pursuant to any provision of these Standards, until any claims related to the alleged Franchise violation(s) are paid in full. 2. The Franchising Authority may require the Cable Operator to increase the amount of the Security Fund, if it finds that new risk factors exist which necessitate such an increase. 3. The Security Fund shall serve as security for the payment of any penalties, fees, charges or credits as provided for herein and for the performance by a Cable Operator of all its obligations under these Customer Service Standards. 13 4. The rights reserved to the Franchising Authority with respect to the Security Fund are in addition to all other rights of the Franchising Authority, whether reserved by any applicable franchise agreement or authorized by law, and no action, proceeding or exercise of a right with respect to same shall in any way affect, or diminish, any other right the Franchising Authority may otherwise have. D. Verification of Compliance A Cable Operator shall establish its compliance with any or all of the standards required through annual reports that demonstrate said compliance, or as requested by the Franchising Authority. E. Procedure for Remedying Violations 1. If the Franchising Authority has reason to believe that a Cable Operator has failed to comply with any of these Standards, or has failed to perform in a timely manner, the Franchising Authority may pursue the procedures in its Franchise Agreement to address violations of these Standards in a like manner as other franchise violations are considered. 2. Following the procedures set forth in any Franchise Agreement governing the manner to address alleged Franchise violations, if the Franchising Authority determines in its sole discretion that the noncompliance has been substantiated, in addition to any remedies that may be provided in the Franchise Agreement, the Franchising Authority may: a. Impose assessments of up to one thousand dollars ($1,000.00) per day, to be withdrawn from the Security Fund in addition to any franchise fee until the non-compliance is remedied; and/or b. Order such rebates and credits to affected customers as in its sole discretion it deems reasonable and appropriate for degraded or unsatisfactory services that constituted noncompliance with these Standards; and/or c. Reverse any decision of the Cable Operator in the matter and/or d. Grant a specific solution as determined by the Franchising Authority; and/or e. Except for in emergency situations, withhold licenses and permits for work by the Cable Operator or its subcontractors in accordance with applicable law. V. MISCELLANEOUS A. Severability Should any section, subsection, paragraph, term, or provision of these Standards be determined to be illegal, invalid, or unconstitutional by any court or agency of competent jurisdiction with regard thereto, such determination shall have no effect on the validity of any other section, subsection, paragraph, term, or provision of these Standards, each of the latter of which shall remain in full force and effect. B. Non-Waiver Failure to enforce any provision of these Standards shall not operate as a waiver of the obligations or responsibilities of a Cable Operator under said provision, or any other provision of these Standards. 14 COMCAST OF COLORADO / FLORIDA / MICHIGAN / NEW MEXICO / PENNSYLVANIA / WASHINGTON, LLC AND PITKIN COUNTY, COLORADO ____________________________________________ CABLE FRANCHISE AGREEMENT Table of Contents SECTION 1. DEFINITIONS ......................................................................................................................................1 SECTION 2. GRANT OF FRANCHISE ...................................................................................................................7 2.1 Grant .................................................................................................................................................................7 2.2 Use of Right-of-Way ........................................................................................................................................8 2.3 Term of Franchise.............................................................................................................................................9 2.4 Franchise Nonexclusive....................................................................................................................................9 2.5 Police Powers ...................................................................................................................................................9 2.6 Competitive Equity.........................................................................................................................................10 2.7 Familiarity with Franchise..............................................................................................................................11 2.8 Effect of Acceptance ......................................................................................................................................11 SECTION 3. FRANCHISE FEE PAYMENT AND FINANCIAL CONTROLS ................................................12 3.1 Franchise Fee..................................................................................................................................................12 3.2 Payments.........................................................................................................................................................12 3.3 Acceptance of Payment and Recomputation ..................................................................................................12 3.4 Quarterly Franchise Fee Reports ....................................................................................................................12 3.5 Annual Franchise Fee Reports........................................................................................................................12 3.6 Franchise Fees Subject to Audit .....................................................................................................................12 3.7 Late Payments ................................................................................................................................................13 3.8 Underpayments...............................................................................................................................................13 3.9 Alternative Compensation ..............................................................................................................................13 3.10 Maximum Legal Compensation .....................................................................................................................13 3.11 Additional Commitments Not Franchise Fee Payments ................................................................................14 3.12 Tax Liability ...................................................................................................................................................14 3.13 Financial Records ...........................................................................................................................................14 3.14 Payment on Termination ................................................................................................................................14 SECTION 4. ADMINISTRATION AND REGULATION ....................................................................................15 4.1 Authority.........................................................................................................................................................15 4.2 Rates and Charges ..........................................................................................................................................15 4.3 Rate Discrimination........................................................................................................................................15 4.4 Filing of Rates and Charges ...........................................................................................................................16 4.5 Cross Subsidization ........................................................................................................................................16 4.6 Reserved Authority.........................................................................................................................................16 4.7 Franchise Amendment Procedure...................................................................................................................16 i 4.8 4.9 4.10 Performance Evaluations................................................................................................................................16 Late Fees.........................................................................................................................................................17 Force Majeure.................................................................................................................................................17 SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS....................................................................18 5.1 Indemnification...............................................................................................................................................18 5.2 Insurance.........................................................................................................................................................19 5.3 Letter of Credit ..............................................................................................................................................20 SECTION 6. CUSTOMER SERVICE.....................................................................................................................21 6.1 Customer Service Standards...........................................................................................................................21 6.2 Subscriber Privacy..........................................................................................................................................21 6.3 Subscriber Contracts.......................................................................................................................................21 6.4 Advance Notice to the County .......................................................................................................................21 6.5 Identification of Local Franchise Authority on Subscriber Bills ...................................................................21 SECTION 7. BOOKS AND RECORDS ..................................................................................................................22 7.1 Open Records .................................................................................................................................................22 7.2 Confidentiality ................................................................................................................................................22 7.3 Records Required ...........................................................................................................................................23 7.4 Annual Reports ...............................................................................................................................................23 7.5 Copies of Federal and State Reports ..............................................................................................................24 7.6 Complaint File and Reports............................................................................................................................24 7.7 Failure to Report.............................................................................................................................................24 7.8 False Statements .............................................................................................................................................25 SECTION 8. PROGRAMMING ..............................................................................................................................25 8.1 Broad Programming Categories .....................................................................................................................25 8.2 Deletion or Reduction of Broad Programming Categories ............................................................................25 8.3 Obscenity........................................................................................................................................................26 8.4 Parental Control Device .................................................................................................................................26 8.5 Continuity of Service Mandatory ...................................................................................................................26 8.6 Services for the Disabled................................................................................................................................27 SECTION 9. ACCESS ...............................................................................................................................................27 9.1 Designated Access Providers .........................................................................................................................27 9.2 Channel Capacity and Use..............................................................................................................................27 9.3 Access Channel Assignments and Relocation ...............................................................................................30 9.4 Web-Based Video On Demand and Streaming ..............................................................................................30 9.5 Support for Access Costs................................................................................................................................31 9.6 Access Support Not Franchise Fees ...............................................................................................................32 9.7 Access Channels On Basic Service or Lowest Priced HD Service Tier ........................................................32 9.8 Change In Technology ...................................................................................................................................32 9.9 Technical Quality ...........................................................................................................................................32 9.10 Access Cooperation ........................................................................................................................................33 9.11 Return Lines .................................................................................................................................................33 ii SECTION 10. GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION ....................................................34 10.1 Right to Construct...........................................................................................................................................34 10.2 Right-of-Way Meetings..................................................................................................................................34 10.3 Joint Trenching/Boring Meetings...................................................................................................................34 10.4 General Standard ............................................................................................................................................34 10.5 Permits Required for Construction .................................................................................................................34 10.6 Emergency Permits.........................................................................................................................................35 10.7 Compliance with Applicable Codes ...............................................................................................................35 10.8 GIS Mapping ..................................................................................................................................................35 10.9 Minimal Interference ......................................................................................................................................35 10.10 Prevent Injury/Safety......................................................................................................................................36 10.11 Hazardous Substances ....................................................................................................................................36 10.12 Locates............................................................................................................................................................36 10.13 Notice to Private Property Owners.................................................................................................................37 10.14 Underground Construction and Use of Poles .................................................................................................37 10.15 Undergrounding of Multiple Dwelling Unit Drops........................................................................................37 10.16 Burial Standards .............................................................................................................................................38 10.17 Cable Drop Bonding.......................................................................................................................................38 10.18 Prewiring ........................................................................................................................................................38 10.19 Repair and Restoration of Property ................................................................................................................38 10.20 Acquisition of Facilities .................................................................................................................................39 10.21 Discontinuing Use/Abandonment of Cable System Facilities .......................................................................39 10.22 Movement of Cable System Facilities For County Purposes .........................................................................40 10.23 Reimbursement of Grantee Costs ...................................................................................................................40 10.24 Movement of Cable System Facilities for Other Franchise Holders..............................................................40 10.25 Temporary Changes for Other Permittees ......................................................................................................41 10.26 Reservation of County Use of Right-of-Way .................................................................................................41 10.27 Tree Trimming................................................................................................................................................41 10.28 Inspection of Construction and Facilities .......................................................................................................41 10.29 Stop Work.......................................................................................................................................................42 10.30 Work of Contractors and Subcontractors .......................................................................................................42 SECTION 11. CABLE SYSTEM, TECHNICAL STANDARDS AND TESTING .............................................42 11.1 Subscriber Network ........................................................................................................................................42 11.2 Technology Assessment .................................................................................................................................43 11.3 Standby Power................................................................................................................................................43 11.3 Emergency Alert Capability ...........................................................................................................................44 11.4 Technical Performance ...................................................................................................................................44 11.5 Cable System Performance Testing................................................................................................................44 11.6 Additional Tests..............................................................................................................................................45 SECTION 12. SERVICE AVAILABILITY, INTERCONNECTION AND SERVICE TO SCHOOLS AND PUBLIC BUILDINGS ........................................................................................................................46 12.1 Service Availability ........................................................................................................................................46 12.2 Connection of Public Facilities ......................................................................................................................47 SECTION 13. FRANCHISE VIOLATIONS...........................................................................................................48 13.1 Procedure for Remedying Franchise Violations.............................................................................................48 13.2 Revocation ......................................................................................................................................................49 13.3 Procedures in the Event of Termination or Revocation .................................................................................50 13.4 Purchase of Cable System ..............................................................................................................................51 iii 13.5 13.6 13.7 13.8 13.9 13.9 Receivership and Foreclosure.........................................................................................................................51 No Monetary Recourse Against the County...................................................................................................52 Alternative Remedies .....................................................................................................................................52 Assessment of Monetary Damages ................................................................................................................52 Effect of Abandonment ..................................................................................................................................53 What Constitutes Abandonment.....................................................................................................................53 SECTION 14. FRANCHISE RENEWAL AND TRANSFER ...............................................................................53 14.1 Renewal ..........................................................................................................................................................53 14.2 Transfer of Ownership or Control ..................................................................................................................54 SECTION 15. SEVERABILITY ..............................................................................................................................55 SECTION 16. MISCELLANEOUS PROVISIONS................................................................................................56 16.1 Preferential or Discriminatory Practices Prohibited.......................................................................................56 16.2 Reservation of Rights .....................................................................................................................................56 16.3 Notices............................................................................................................................................................56 16.4 Descriptive Headings......................................................................................................................................56 16.5 Publication Costs to be Borne by Grantee......................................................................................................57 16.6 Binding Effect ................................................................................................................................................57 16.7 No Joint Venture.............................................................................................................................................57 16.8 Waiver ............................................................................................................................................................57 16.9 Reasonableness of Consent or Approval ........................................................................................................57 16.10 Entire Agreement............................................................................................................................................57 iv COMCAST OF COLORADO / FLORIDA / MICHIGAN / NEW MEXICO / PENNSYLVANIA / WASHINGTON, LLC AND PITKIN COUNTY, COLORADO _____________________________________________ CABLE FRANCHISE AGREEMENT SECTION 1. DEFINITIONS For the purposes of this Franchise, the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural include the singular, and words in the singular include the plural. Words not defined shall be given their common and ordinary meaning. The word "shall" is always mandatory and not merely directory. 1.1 “Access” means the availability for noncommercial use by various agencies, institutions, organizations, groups and individuals in the community, including the County and its designees, of the Cable System to acquire, create, receive, and distribute video Cable Services and other services and signals as permitted under Applicable Law including, but not limited to: (A) “Public Access” means Access where community-based, noncommercial organizations, groups or individual members of the general public, on a nondiscriminatory basis, are the primary users. (B) “Educational Access” means Access where schools are the primary users having editorial control over programming and services. For purposes of this definition, “school” means any State-accredited educational institution, public or private, including, for example, primary and secondary schools, colleges and universities. (C) “Government Access” means Access where governmental institutions or their designees are the primary users having editorial control over programming and services. 1.2 “Access Channel” means any Channel, or portion thereof, designated for Access purposes or otherwise made available to facilitate or transmit Access programming or services. 1.3 “Activated” means the status of any capacity or part of the Cable System in which any Cable Service requiring the use of that capacity or part is available without further installation of system equipment, whether hardware or software. 1.4 “Affiliate,” when used in connection with Grantee, means any Person who owns or controls, is owned or controlled by, or is under common ownership or control with, Grantee. 1.5 “Applicable Law” means any statute, ordinance, judicial decision, executive order or regulation having the force and effect of law that determines the legal standing of a case or issue. 1 1.6 “Bad Debt” means amounts lawfully billed to a Subscriber and owed by the Subscriber for Cable Service and accrued as revenues on the books of Grantee, but not collected after reasonable efforts have been made by Grantee to collect the charges. 1.7 “Basic Service” is the level of programming service which includes, at a minimum, all Broadcast Channels, all PEG SD Access Channels required in this Franchise, and any additional Programming added by the Grantee, and is made available to all Cable Services Subscribers in the Franchise Area. 1.8 “Broadcast Channel” means local commercial television stations, qualified low power stations and qualified local noncommercial educational television stations, as referenced under 47 USC § 534 and 535. 1.9 “Broadcast Signal” means a television or radio signal transmitted over the air to a wide geographic audience, and received by a Cable System by antenna, microwave, satellite dishes or any other means. 1.10 “Cable Act” means the Title VI of the Communications Act of 1934, as amended. 1.11 “Cable Operator” means any Person or groups of Persons, including Grantee, who provide(s) Cable Service over a Cable System and directly or through one or more affiliates owns a significant interest in such Cable System or who otherwise control(s) or is (are) responsible for, through any arrangement, the management and operation of such a Cable System. 1.12 “Cable Service” means the one-way transmission to Subscribers of video programming or other programming service, and Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service. 1.13 “Cable System” means any facility, including Grantee’s, consisting of a set of closed transmissions paths and associated signal generation, reception, and control equipment that is designed to provide Cable Service which includes video programming and which is provided to multiple Subscribers within a community, but such term does not include (A) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (B) a facility that serves Subscribers without using any Right-of-Way; (C) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the federal Communications Act (47 U.S.C. 201 et seq.), except that such facility shall be considered a Cable System (other than for purposes of Section 621(c) (47 U.S.C. 541(c)) to the extent such facility is used in the transmission of video programming directly to Subscribers, unless the extent of such use is solely to provide interactive on-demand services; (D) an open video system that complies with federal statutes; or (E) any facilities of any electric utility used solely for operating its electric utility systems. 2 1.14 “Channel” means a portion of the electromagnetic frequency spectrum which is used in the Cable System and which is capable of delivering a television channel (as television channel is defined by the FCC by regulation). 1.15 “Commercial Subscribers” means any Subscribers other than Residential Subscribers. 1.16 “Commissioners” means the Board of County Commissioners of Pitkin County, or its successor, the governing body of Pitkin County, Colorado. 1.17 “County” is Pitkin County, Colorado, a body politic under the laws of the State of Colorado. 1.18 “Designated Access Provider” means the entity or entities designated now or in the future by the County to manage or co-manage Access Channels and facilities. The County may be a Designated Access Provider. 1.19 “Digital Starter Service” means the Tier of optional video programming services, which is the level of Cable Service received by most Subscribers above Basic Service, and does not include Premium Services. 1.20 “Downstream” means carrying a transmission from the Headend to remote points on the Cable System or to Interconnection points on the Cable System. 1.21 “Dwelling Unit” means any building, or portion thereof, that has independent living facilities, including provisions for cooking, sanitation and sleeping, and that is designed for residential occupancy. Buildings with more than one set of facilities for cooking shall be considered Multiple Dwelling Units unless the additional facilities are clearly accessory. 1.22 “Effective Date” means the January 1, 2018. 1.23 “FCC” means the Federal Communications Commission. 1.24 “Fiber Optic” means a transmission medium of optical fiber cable, along with all associated electronics and equipment, capable of carrying Cable Service by means of electric lightwave impulses. 1.25 “Franchise” means the document in which this definition appears, i.e., the contractual agreement, executed between Pitkin County and Grantee, containing the specific provisions of the authorization granted, including references, specifications, requirements and other related matters. 1.26 “Franchise Area” means all of the unincorporated areas within the jurisdictional boundaries of the Pitkin County, Colorado. 1.27 “Franchise Fee” means that fee payable to the County described in subsection 3.1. 3 1.28 “Grantee” means Comcast of Colorado / Florida / Michigan / New Mexico / Pennsylvania / Washington, LLC or its lawful successor, transferee or assignee. 1.29 “Gross Revenues” means, and shall be construed broadly to include all revenues derived directly or indirectly by Grantee and/or an Affiliated Entity that is the cable operator of the Cable System, from the operation of Grantee’s Cable System to provide Cable Services within the County. Gross revenues include, by way of illustration and not limitation: • monthly fees for Cable Services, regardless of whether such Cable Services are provided to residential or commercial customers, including revenues derived from the provision of all Cable Services (including but not limited to pay or premium Cable Services, digital Cable Services, pay-per-view, pay-per-event and video-on-demand Cable Services); • installation, reconnection, downgrade, upgrade or similar charges associated with changes in subscriber Cable Service levels; • fees paid to Grantee for channels designated for commercial/Leased Access use and shall be allocated on a pro rata basis using total Cable Service subscribers within the County; • converter, remote control, and other Cable Service equipment rentals, leases, or sales; • Advertising Revenues as defined herein; • late fees, convenience fees and administrative fees which shall be allocated on a pro rata basis using Cable Services revenue as a percentage of total subscriber revenues within the County; • revenues from program guides; • Franchise Fees; • FCC Regulatory Fees; and, • commissions from home shopping channels and other Cable Service revenue sharing arrangements which shall be allocated on a pro rata basis using total Cable Service subscribers within the County. (A) “Advertising Revenues” shall mean revenues derived from sales of advertising that are made available to Grantee’s Cable System subscribers within the County and shall be allocated on a pro rata basis using total Cable Service subscribers reached by the advertising. Additionally, Grantee agrees that Gross Revenues subject to franchise fees shall include all commissions, rep fees, Affiliated Entity fees, or rebates paid to National Cable Communications (“NCC”) and Comcast Spotlight (“Spotlight”) or their successors associated with sales of advertising on the Cable System within the County allocated according to this paragraph using total Cable Service subscribers reached by the advertising. 4 (B) “Gross Revenues” shall not include: • actual bad debt write-offs, except any portion which is subsequently collected which shall be allocated on a pro rata basis using Cable Services revenue as a percentage of total subscriber revenues within the County; • any taxes and/or fees on services furnished by Grantee imposed by any municipality, state or other governmental unit, provided that Franchise Fees and the FCC regulatory fee shall not be regarded as such a tax or fee; • fees imposed by any municipality, state or other governmental unit on Grantee including but not limited to Public, Educational and Governmental (PEG) Fees; • launch fees and marketing co-op fees; and, • unaffiliated third party advertising sales agency fees which are reflected as a deduction from revenues. (C) To the extent revenues are received by Grantee for the provision of a discounted bundle of services which includes Cable Services and non-Cable Services, Grantee shall calculate revenues to be included in Gross Revenues using a methodology that allocates revenue on a pro rata basis when comparing the bundled service price and its components to the sum of the published rate card, except as required by specific federal, state or local law, it is expressly understood that equipment may be subject to inclusion in the bundled price at full rate card value. This calculation shall be applied to every bundled service package containing Cable Service from which Grantee derives revenues in the County. The County reserves its right to review and to challenge Grantee’s calculations. (D) Grantee reserves the right to change the allocation methodologies set forth in this Section 1.29 in order to meet the standards required by governing accounting principles as promulgated and defined by the Financial Accounting Standards Board (“FASB”), Emerging Issues Task Force (“EITF”) and/or the U.S. Securities and Exchange Commission (“SEC”). Grantee will explain and document the required changes to the County as part of any audit or review of franchise fee payments, and any such changes shall be subject to 1.27(E) below. (E) Resolution of any disputes over the classification of revenue should first be attempted by agreement of the Parties, but should no resolution be reached, the Parties agree that reference shall be made to generally accepted accounting principles (“GAAP”) as promulgated and defined by the Financial Accounting Standards Board (“FASB”), Emerging Issues Task Force (“EITF”) and/or the U.S. Securities and Exchange Commission (“SEC”). Notwithstanding the forgoing, the County reserves its right to challenge Grantee’s calculation of Gross Revenues, including the interpretation of GAAP as promulgated and defined by the FASB, EITF and/or the SEC. 1.30 “Headend” means any facility for signal reception and dissemination on a Cable System, including cables, antennas, wires, satellite dishes, monitors, switchers, modulators, processors 5 for Broadcast Signals, equipment for the Interconnection of the Cable System with adjacent Cable Systems and Interconnection of any networks which are part of the Cable System, and all other related equipment and facilities. 1.31 “Leased Access Channel” means any Channel or portion of a Channel commercially available for video programming by Persons other than Grantee, for a fee or charge. 1.32 “Manager” means the County Manager of Pitkin County or designee. 1.33 “Person” means any individual, sole proprietorship, partnership, association, or corporation, or any other form of entity or organization. 1.34 “Premium Service” means programming choices (such as movie Channels, pay-per-view programs, or video on demand) offered to Subscribers on a per-Channel, per-program or perevent basis. 1.35 “Residential Subscriber” means any Person who receives Cable Service delivered to Dwelling Units or Multiple Dwelling Units, excluding such Multiple Dwelling Units billed on a bulk-billing basis. 1.36 “Right-of-Way” means each of the following which have been dedicated to the public or are hereafter dedicated to the public and maintained under public authority or by others and located within the County: streets, roadways, highways, avenues, lanes, alleys, bridges, sidewalks, easements, right-of-way and similar public property and areas. 1.37 “State” means the State of Colorado. 1.38 “Subscriber” means any Person who or which elects to subscribe to, for any purpose, Cable Service provided by Grantee by means of or in connection with the Cable System and whose premises are physically wired and lawfully Activated to receive Cable Service from Grantee's Cable System, and who is in compliance with Grantee’s regular and nondiscriminatory terms and conditions for receipt of service. 1.39 “Subscriber Network” means that portion of the Cable System used primarily by Grantee in the transmission of Cable Services to Residential Subscribers. 1.40 “Telecommunications” means the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received (as provided in 47 U.S.C. Section 153(43)). 1.41 “Telecommunications Service” means the offering of Telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used (as provided in 47 U.S.C. Section 153(46)). 1.42 “Tier” means a group of Channels for which a single periodic subscription fee is charged. 6 1.43 “Two-Way” means that the Cable System is capable of providing both Upstream and Downstream transmissions. 1.44 “Upstream” means carrying a transmission to the Headend from remote points on the Cable System or from Interconnection points on the Cable System. (B) EXHIBITS The following documents, which are occasionally referred to in this Franchise, are formally incorporated and made a part of this Franchise by this reference: 1) Exhibit A, Entitled Customer Service Standards. 2) Exhibit B, Entitled Report Form. SECTION 2. GRANT OF FRANCHISE 2.1 Grant (A) The County hereby grants to Grantee a nonexclusive authorization to make reasonable and lawful use of the Right-of-Way within the County to construct, operate, maintain, reconstruct and rebuild a Cable System for the purpose of providing Cable Service subject to the terms and conditions set forth in this Franchise and in any prior utility or use agreements entered into by Grantee with regard to any individual property. (B) Nothing in this Franchise shall be deemed to waive the lawful requirements of any generally applicable County ordinance existing as of the Effective Date, as defined in subsection 1.22. (C) Each and every term, provision or condition herein is subject to the provisions of State law, federal law, and the County ordinances and regulations enacted pursuant thereto. The Code of the County, as the same may be amended from time to time, are hereby expressly incorporated into this Franchise as if fully set out herein by this reference. Notwithstanding the foregoing, the County may not unilaterally alter the material rights and obligations of Grantee under this Franchise. (D) This Franchise shall not be interpreted to prevent the County from imposing additional lawful conditions, including additional compensation conditions for use of the Rightof-Way, should Grantee provide service other than Cable Service. (E) Grantee promises and guarantees, as a condition of exercising the privileges granted by this Franchise, that any Affiliate of the Grantee directly involved in the offering of Cable Service in the Franchise Area, or directly involved in the management or operation of the Cable System in the Franchise Area, will also comply with the obligations of this Franchise. 7 (F) No rights shall pass to Grantee by implication. Without limiting the foregoing, by way of example and not limitation, this Franchise shall not include or be a substitute for: (1) Any other permit or authorization required for the privilege of transacting and carrying on a business within the County that may be required by the ordinances and laws of the County; (2) Any permit, agreement, or authorization required by the County for Rightof-Way users in connection with operations on or in Right-of-Way or public property including, by way of example and not limitation, street cut permits; or (3) Any permits or agreements for occupying any other property of the County or private entities to which access is not specifically granted by this Franchise including, without limitation, permits and agreements for placing devices on poles, in conduits or in or on other structures. (G) This Franchise is intended to convey limited rights and interests only as to those Right-of-Way in which the County has an actual interest. It is not a warranty of title or interest in any Right-of-Way; it does not provide the Grantee with any interest in any particular location within the Right-of-Way; and it does not confer rights other than as expressly provided in the grant hereof. (H) This Franchise does not authorize Grantee to provide Telecommunications Service, or to construct, operate or maintain Telecommunications facilities. This Franchise is not a bar to the provision of non-Cable Services, or to the imposition of any lawful conditions on Grantee with respect to Telecommunications, whether similar, different or the same as the conditions specified herein. This Franchise does not relieve Grantee of any obligation it may have to obtain from the County an authorization to provide Telecommunications Services, or to construct, operate or maintain Telecommunications facilities, or relieve Grantee of its obligation to comply with any such authorizations that may be lawfully required. 2.2 Use of Right-of-Way (A) Subject to the County's supervision and control, Grantee may erect, install, construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across, and along the Right-of-Way within the County such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, pedestals, attachments and other property and equipment as are necessary and appurtenant to the operation of a Cable System within the County. Grantee, through this Franchise, is granted extensive and valuable rights to operate its Cable System for profit using the County's Right-of-Way in compliance with all applicable County construction codes and procedures. As trustee for the public, the County is entitled to fair compensation as provided for in Section 3 of this Franchise to be paid for these valuable rights throughout the term of the Franchise. 8 (B) Grantee must follow County established nondiscriminatory requirements for placement of Cable System facilities in Right-of-Way, including the specific location of facilities in the Right-of-Way, and must in any event install Cable System facilities in a manner that minimizes interference with the use of the Right-of-Way by others, including others that may be installing communications facilities. Within limits reasonably related to the County’s role in protecting public health, safety and welfare, the County may require that Cable System facilities be installed at a particular time, at a specific place or in a particular manner as a condition of access to a particular Right-of-Way; may deny access if Grantee is not willing to comply with County's requirements; and may remove, or require removal of, any facility that is not installed by Grantee in compliance with the requirements established by the County, or which is installed without prior County approval of the time, place or manner of installation, and charge Grantee for all the costs associated with removal; and may require Grantee to cooperate with others to minimize adverse impacts on the Right-of-Way through joint trenching and other arrangements. 2.3 Term of Franchise The term of the Franchise granted hereunder shall be ten (10) years, commencing upon the Effective Date of the Franchise, unless the Franchise is renewed or is lawfully terminated in accordance with the terms of this Franchise Agreement and the Cable Act, or is extended by mutual agreement of the County and Grantee. 2.4 Franchise Nonexclusive This Franchise shall be nonexclusive, and subject to all prior rights, interests, easements or licenses granted by the County to any Person to use any property, Right-of-Way, right, interest or license for any purpose whatsoever, including the right of the County to use same for any purpose it deems fit, including the same or similar purposes allowed Grantee hereunder. The County may at any time grant authorization to use the Right-of-Way for any purpose not incompatible with Grantee's authority under this Franchise and for such additional franchises for Cable Systems as the County deems appropriate. 2.5 Police Powers Grantee’s rights hereunder are subject to the police powers of the County to adopt and enforce ordinances necessary to the safety, health, and welfare of the public, and Grantee agrees to comply with all laws and ordinances of general applicability enacted, or hereafter enacted, by the County or any other legally constituted governmental unit having lawful jurisdiction over the subject matter hereof. The County shall have the right to adopt, from time to time, such ordinances as may be deemed necessary in the exercise of its police power; provided that such hereinafter enacted ordinances shall be reasonable and not materially modify the terms of this Franchise. Any conflict between the provisions of this Franchise and any other present or future lawful exercise of the County's police powers shall be resolved in favor of the latter. 9 2.6 Competitive Equity (A) The Grantee acknowledges and agrees that the County reserves the right to grant one (1) or more additional franchises or other similar lawful authorization to utilize the Rightsof-Way in order to provide Cable Services or similar video programming service within the County. If the County grants such an additional franchise or other similar lawful authorization that permits a new entrant to utilize the Rights-of-Way for Cable Services or similar video programming services containing material terms and conditions that differ from Grantee’s material obligations under this Franchise, or declines to require such franchise or other similar lawful authorization where it has the legal authority to do so, then the parties agree that the obligations in this Franchise will, pursuant to the process set forth in this Section, be amended to include any material terms or conditions that it imposes upon the new entrant, or provide relief from existing material terms or conditions, so as to insure that the regulatory and financial burdens on each entity are materially equivalent. “Material terms and conditions” include, but are not limited to: Franchise Fees and Gross Revenues; complementary services; insurance; System build-out requirements; security instruments; Public, Education and Government Access Channels and support; customer service standards; required reports and related record keeping; competitive equity (or its equivalent); audits; dispute resolution; remedies; and notice and opportunity to cure breaches. The parties agree that this provision shall not require a word for word identical franchise or authorization for a competitive entity so long as the regulatory and financial burdens on each entity are materially equivalent. (B) The modification process of this Franchise as provided for in Section 2.6 (A) shall only be initiated by written notice by the Grantee to the County regarding specified franchise obligations. Grantee’s notice shall address the following: (1) identifying the specific terms or conditions in the competitive cable services franchise which are materially different from Grantee’s obligations under this Franchise; (2) identifying the Franchise terms and conditions for which Grantee is seeking amendments; (3) providing text for any proposed Franchise amendments to the County, with a written explanation of why the proposed amendments are necessary and consistent. (C) Upon receipt of Grantee’s written notice as provided in Section 2.6 (B), the County and Grantee agree that they will use best efforts in good faith to negotiate Grantee’s proposed Franchise modifications, and that such negotiation will proceed and conclude within a ninety (90) day time period, unless that time period is reduced or extended by mutual agreement of the parties. If the County and Grantee reach agreement on the Franchise modifications pursuant to such negotiations, then the County shall amend this Franchise to include the modifications. (D) In the alternative to Franchise modification negotiations as provided for in Section 2.6 (C), or if the County and Grantee fail to reach agreement in such negotiations, Grantee may, at its option, elect to replace this Franchise by opting into the franchise or other similar lawful authorization that the County grants to another multi-channel video programming provider (with the understanding that Grantee will use its current system design and technology infrastructure to meet any requirements of the new franchise), so as to insure that the regulatory and financial burdens on each entity are equivalent. If Grantee so elects, the County shall 10 immediately commence proceedings to replace this Franchise with the franchise issued to the other multi-channel video programming provider. (E) Notwithstanding anything contained in this Section 2.6(A) through (D) to the contrary, the County shall not be obligated to amend or replace this Franchise unless the new entrant makes Cable Services or similar video programming service available for purchase by Subscribers or customers under its franchise agreement with the County. (F) Notwithstanding any provision to the contrary, at any time that a wireline-based entity with facilities used to deliver Cable Services or multiple Channels of video programming located in the County’s Rights of Way makes available for purchase by Subscribers or customers Cable Services or multiple Channels of video programming within the Franchise Area without a franchise or other similar lawful authorization that permits a new entrant to utilize the Rights of Way granted by the County, then: (1) Grantee may negotiate with the County to seek Franchise modifications as per Section 2.6(B)-(D) above; or (a) the term of Grantee’s Franchise shall, upon ninety (90) days written notice from Grantee, be shortened so that the Franchise shall be deemed to expire on a date eighteen (18) months from the first day of the month following the date of Grantee’s notice and Grantee shall be deemed to have timely invoked the renewal process under 47 USC 546; or, (b) Grantee may assert, at Grantee’s option, that this Franchise is rendered “commercially impracticable,” and invoke the modification procedures set forth in Section 625 of the Cable Act. 2.7 Familiarity with Franchise The Grantee acknowledges and warrants by acceptance of the rights, privileges and agreements granted herein, that it has carefully read and fully comprehends the terms and conditions of this Franchise and is willing to and does accept all lawful and reasonable risks of the meaning of the provisions, terms and conditions herein. The Grantee further acknowledges and states that it has fully studied and considered the requirements and provisions of this Franchise, and finds that the same are commercially practicable at this time, and consistent with all local, State and federal laws and regulations currently in effect, including the Cable Act. 2.8 Effect of Acceptance By accepting the Franchise, the Grantee: (1) acknowledges and accepts the County's legal right to issue and enforce the Franchise; (2) accepts and agrees to comply with each and every provision of this Franchise subject to Applicable Law; and (3) agrees that the Franchise was granted pursuant to processes and procedures consistent with Applicable Law, and that it will not raise any claim to the contrary. 11 SECTION 3. FRANCHISE FEE PAYMENT AND FINANCIAL CONTROLS 3.1 Franchise Fee As compensation for the benefits and privileges granted under this Franchise and in consideration of permission to use the County's Right-of-Way, Grantee shall within sixty (60) days of the Effective Date of this agreement pay as a Franchise Fee to the County, throughout the duration of and consistent with this Franchise, an amount equal to five percent (5%) of Grantee's Gross Revenues. 3.2 Payments Grantee's Franchise Fee payments to the County shall be computed quarterly for the preceding calendar quarter ending March 31, June 30, September 30, and December 31. Each quarterly payment shall be due and payable no later than forty-five (45) days after said dates. 3.3 Acceptance of Payment and Recomputation No acceptance of any payment shall be construed as an accord by the County that the amount paid is, in fact, the correct amount, nor shall any acceptance of payments be construed as a release of any claim the County may have for further or additional sums payable or for the performance of any other obligation of Grantee. 3.4 Quarterly Franchise Fee Reports Each payment shall be accompanied by a written report to the County, or concurrently sent under separate cover, verified by an authorized representative of Grantee, containing an accurate statement in summarized form, as well as in detail, of Grantee's Gross Revenues and the computation of the payment amount. Such reports shall detail all Gross Revenues of the Cable System. 3.5 Annual Franchise Fee Reports Grantee shall, within sixty (60) days after the end of each year, furnish to the County a statement stating the total amount of Gross Revenues for the year and all payments, deductions and computations for the period. 3.6 Franchise Fees Subject to Audit On an annual basis, upon thirty (30) days prior written notice, the County, including the County’s Auditor or his/her authorized representative, shall have the right to conduct an independent audit/review of Grantee's records reasonably related to the administration or enforcement of this Franchise. Pursuant to subsection 1.29, as part of the Franchise Fee audit/review the County shall specifically have the right to review relevant data related to the allocation of revenue to Cable Services in the event Grantee offers Cable Services bundled with non-Cable Services. For purposes of this section, “relevant data” shall include, at a minimum, 12 Grantee’s records, produced and maintained in the ordinary course of business, showing the subscriber counts per package and the revenue allocation per package for each package that was available for County subscribers during the audit period. To the extent that the County does not believe that the relevant data supplied is sufficient for the County to complete its audit/review, the County may require other relevant data. For purposes of this Section 3.6, the “other relevant data” shall generally mean all: (1) billing reports, (2) financial reports (such as General Ledgers) and (3) sample customer bills used by Grantee to determine Gross Revenues for the Franchise Area that would allow the County to recompute the Gross Revenue determination. If the audit/review shows that Franchise Fee payments have been underpaid by five percent (5%) or more (or such other contract underpayment threshold as set forth in a generally applicable and enforceable regulation or policy of the County related to audits), Grantee shall pay the total cost of the audit/review, such cost not to exceed five thousand dollars ($5,000) for each year of the audit period. The County’s right to audit/review and the Grantee’s obligation to retain records related to this subsection shall expire three (3) years after each Franchise Fee payment has been made to the County. 3.7 Late Payments In the event any payment due quarterly is not received within forty-five (45) days from the end of the calendar quarter, Grantee shall pay interest on the amount due (at the prime rate as listed in the Wall Street Journal on the date the payment was due), compounded daily, calculated from the date the payment was originally due until the date the County receives the payment. 3.8 Underpayments If a net Franchise Fee underpayment is discovered as the result of an audit, Grantee shall pay interest at the rate of the eight percent (8%) per annum, compounded quarterly, calculated from the date each portion of the underpayment was originally due until the date Grantee remits the underpayment to the County. 3.9 Alternative Compensation In the event the obligation of Grantee to compensate the County through Franchise Fee payments is lawfully suspended or eliminated, in whole or part, then Grantee shall pay to the County compensation equivalent to the compensation paid to the County by other similarly situated users of the County 's Right-of-Way for Grantee's use of the County 's Right-of-Way, provided that in no event shall such payments exceed the equivalent of five percent (5%) of Grantee's Gross Revenues (subject to the other provisions contained in this Franchise), to the extent consistent with Applicable Law. 3.10 Maximum Legal Compensation The parties acknowledge that, at present, applicable federal law limits the County to collection of a maximum permissible Franchise Fee of five percent (5%) of Gross Revenues. In the event that at any time during the duration of this Franchise, the County is authorized to collect an amount in excess of five percent (5%) of Gross Revenues, then this Franchise may be 13 amended unilaterally by the County to provide that such excess amount shall be added to the Franchise Fee payments to be paid by Grantee to the County hereunder, provided that Grantee has received at least ninety (90) days prior written notice from the County of such amendment, so long as all cable operators in the County are paying the same Franchise Fee amount. 3.11 Additional Commitments Not Franchise Fee Payments No term or condition in this Franchise shall in any way modify or affect Grantee's obligation to pay Franchise Fees. Although the total sum of Franchise Fee payments and additional commitments set forth elsewhere in this Franchise may total more than five percent (5%) of Grantee's Gross Revenues in any twelve (12) month period, Grantee agrees that the additional commitments herein are not Franchise Fees as defined under any federal law, nor are they to be offset or credited against any Franchise Fee payments due to the County, nor do they represent an increase in Franchise Fees; unless the additional commitments are authorized to be offset in accordance with Applicable Law. 3.12 Tax Liability The Franchise Fees shall be in addition to any and all taxes or other levies or assessments which are now or hereafter required to be paid by businesses in general by any law of the County, the State or the United States including, without limitation, sales, use and other taxes, business license fees or other payments. Payment of the Franchise Fees under this Franchise shall not exempt Grantee from the payment of any other license fee, permit fee, tax or charge on the business, occupation, property or income of Grantee that may be lawfully imposed by the County. Any other license fees, taxes or charges shall be of general applicability in nature and shall not be levied against Grantee solely because of its status as a Cable Operator, or against Subscribers, solely because of their status as such. 3.13 Financial Records Grantee agrees to meet with a representative of the County upon request to review Grantee's methodology of record-keeping, financial reporting, the computing of Franchise Fee obligations and other procedures, the understanding of which the County deems necessary for reviewing reports and records. 3.14 Payment on Termination If this Franchise terminates for any reason, the Grantee shall file with the County within ninety (90) calendar days of the date of the termination, a financial statement, certified by an independent certified public accountant, showing the Gross Revenues received by the Grantee since the end of the previous fiscal year. The County reserves the right to satisfy any remaining financial obligations of the Grantee to the County by utilizing the funds available in any security provided by the Grantee. 14 SECTION 4. ADMINISTRATION AND REGULATION 4.1 Authority (A) The County shall be vested with the power and right to reasonably regulate the exercise of the privileges permitted by this Franchise in the public interest, or to delegate that power and right, or any part thereof, to the extent permitted under Federal, State and local law, to any agent, in its sole discretion, including without limitation, the Colorado Communications and Utility Alliance. (B) Nothing in this Franchise shall limit nor expand the County's right of eminent domain under State law. 4.2 Rates and Charges All of Grantee’s rates and charges related to or regarding Cable Services shall be subject to regulation by the County to the full extent authorized by applicable federal, State and local laws. 4.3 Rate Discrimination All of Grantee’s rates and charges shall be published (in the form of a publicly-available rate card) and be non-discriminatory as to all Persons and organizations of similar classes, under similar circumstances and conditions. Grantee shall apply its rates in accordance with Applicable Law, with identical rates and charges for all Subscribers receiving identical Cable Services, without regard to race, color, ethnic or national origin, religion, age, sex, sexual orientation, marital, military or economic status, or physical or mental disability or geographic location within the County. Grantee shall offer the same Cable Services to all Residential Subscribers at identical rates to the extent required by Applicable Law and to Multiple Dwelling Unit Subscribers to the extent authorized by FCC rules or applicable Federal law. Grantee shall permit Subscribers to make any lawful in-residence connections the Subscriber chooses without additional charge nor penalizing the Subscriber therefor. However, if any in-home connection requires service from Grantee due to signal quality, signal leakage or other factors, caused by improper installation of such in-home wiring or faulty materials of such in-home wiring, the Subscriber may be charged reasonable service charges by Grantee. Nothing herein shall be construed to prohibit: (A) The temporary reduction or waiving of rates or charges in conjunction with valid promotional campaigns; or, (B) The offering of reasonable discounts to senior citizens or economically disadvantaged citizens; or, (C) The offering of rate discounts for Cable Service; or, 15 (D) The Grantee from establishing different and nondiscriminatory rates and charges and classes of service for Commercial Subscribers, as allowable by federal law and regulations. 4.4 Filing of Rates and Charges (A) Throughout the term of this Franchise, Grantee shall maintain on file with the County a complete schedule of applicable rates and charges for Cable Services provided under this Franchise. Nothing in this subsection shall be construed to require Grantee to file rates and charges under temporary reductions or waivers of rates and charges in conjunction with promotional campaigns. (B) Upon request of the County, Grantee shall provide a complete schedule of current rates and charges for any and all Leased Access Channels, or portions of such Channels, provided by Grantee. The schedule shall include a description of the price, terms, and conditions established by Grantee for Leased Access Channels. 4.5 Cross Subsidization Grantee shall comply with all Applicable Laws regarding rates for Cable Services and all Applicable Laws covering issues of cross subsidization. 4.6 Reserved Authority Both Grantee and the County reserve all rights they may have under the Cable Act and any other relevant provisions of federal, State, or local law. 4.7 Franchise Amendment Procedure Either party may at any time seek an amendment of this Franchise by so notifying the other party in writing. Within thirty (30) days of receipt of notice, the County and Grantee shall meet to discuss the proposed amendment(s). If the parties reach a mutual agreement upon the suggested amendment(s), such amendment(s) shall be submitted to the County Council for its approval. If so approved by the County Council and the Grantee, then such amendment(s) shall be deemed part of this Franchise. If mutual agreement is not reached, there shall be no amendment. 4.8 Performance Evaluations (A) The County may hold performance evaluation sessions upon ninety (90) days written notice, provided that such evaluation sessions shall be held no more frequently than once every two (2) years. All such evaluation sessions shall be conducted by the County. (B) Special evaluation sessions may be held at any time by the County during the term of this Franchise, upon ninety (90) days written notice to Grantee. 16 (C) All regular evaluation sessions shall be open to the public and announced at least two (2) weeks in advance in any manner within the discretion of the County. Grantee shall also include with or on the Subscriber billing statements for the billing period immediately preceding the commencement of the session, written notification of the date, time, and place of the regular performance evaluation session, and any special evaluation session as required by the County, provided Grantee receives appropriate advance notice. (D) Topics which may be discussed at any evaluation session may include, but are not limited to, Cable Service rate structures; Franchise Fee payments; liquidated damages; free or discounted Cable Services; application of new technologies; Cable System performance; Cable Services provided; programming offered; Subscriber complaints; privacy; amendments to this Franchise; judicial and FCC rulings; line extension policies; and the County or Grantee's rules; provided that nothing in this subsection shall be construed as requiring the renegotiation of this Franchise. (E) During evaluations under this subsection, Grantee shall fully cooperate with the County and shall provide such information and documents maintained in the ordinary course of business as the County may reasonably require to perform the evaluation. 4.9 Late Fees (A) For purposes of this subsection, any assessment, charge, cost, fee or sum, however characterized, that the Grantee imposes upon a Subscriber solely for late payment of a bill is a late fee and shall be applied in accordance with the County’s Customer Service Standards, as the same may be amended from time to time by the County Council acting by ordinance or resolution, or as the same may be superseded by legislation or final court order. (B) Nothing in this subsection shall be deemed to create, limit or otherwise affect the ability of the Grantee, if any, to impose other assessments, charges, fees or sums other than those permitted by this subsection, for the Grantee's other services or activities it performs in compliance with Applicable Law, including FCC law, rule or regulation. (C) The Grantee's late fee and disconnection policies and practices shall be nondiscriminatory and such policies and practices, and any fees imposed pursuant to this subsection, shall apply equally in all parts of the County without regard to the neighborhood or income level of the Subscriber. 4.10 Force Majeure In the event Grantee is prevented or delayed in the performance of any of its obligations under this Franchise by reason beyond the control of Grantee, Grantee shall have a reasonable time, under the circumstances, to perform the affected obligation under this Franchise or to procure a substitute for such obligation which is satisfactory to the County. Those conditions which are not within the control of Grantee include, but are not limited to, natural disasters, civil disturbances, work stoppages or labor disputes, power outages, telephone network outages, and severe or unusual weather conditions which have a direct and substantial impact on the Grantee’s 17 ability to provide Cable Services in the County and which was not caused and could not have been avoided by the Grantee which used its best efforts in its operations to avoid such results. If Grantee believes that a reason beyond its control has prevented or delayed its compliance with the terms of this Franchise, Grantee shall provide documentation as reasonably required by the County to substantiate the Grantee’s claim. If Grantee has not yet cured the deficiency, Grantee shall also provide the County with its proposed plan for remediation, including the timing for such cure. SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS 5.1 Indemnification (A) General Indemnification. Grantee shall indemnify, defend and hold the County, its officers, officials, boards, commissions, agents and employees, harmless from any action or claim for injury, damage, loss, liability, cost or expense, including court and appeal costs and reasonable attorneys' fees or reasonable expenses, arising from any casualty or accident to Person or property, including, without limitation, copyright infringement, defamation, and all other damages in any way arising out of, or by reason of, any construction, excavation, operation, maintenance, reconstruction, or any other act done under this Franchise, by or for Grantee, its agents, or its employees, or by reason of any neglect or omission of Grantee. Grantee shall consult and cooperate with the County while conducting its defense of the County. Grantee shall not be obligated to indemnify the County to the extent of the County’s negligence or willful misconduct. (B) Indemnification for Relocation. Grantee shall indemnify the County for any damages, claims, additional costs or reasonable expenses assessed against, or payable by, the County arising out of, or resulting from, directly or indirectly, Grantee's failure to remove, adjust or relocate any of its facilities in the Rights-of-Way in a timely manner in accordance with any relocation required by the County. (C) Additional Circumstances. Grantee shall also indemnify, defend and hold the County harmless for any claim for injury, damage, loss, liability, cost or expense, including court and appeal costs and reasonable attorneys' fees or reasonable expenses in any way arising out of: (1) The lawful actions of the County in granting this Franchise to the extent such actions are consistent with this Franchise and Applicable Law. (2) Damages arising out of any failure by Grantee to secure consents from the owners, authorized distributors, or licensees/licensors of programs to be delivered by the Cable System, whether or not any act or omission complained of is authorized, allowed or prohibited by this Franchise. (D) Procedures and Defense. If a claim or action arises, the County or any other indemnified party shall promptly tender the defense of the claim to Grantee, which defense shall be at Grantee’s expense. The County may participate in the defense of a claim, but if Grantee 18 provides a defense at Grantee’s expense then Grantee shall not be liable for any attorneys’ fees, expenses or other costs that County may incur if it chooses to participate in the defense of a claim, unless and until separate representation as described below in Paragraph 5.1(F) is required. In that event the provisions of Paragraph 5.1(F) shall govern Grantee’s responsibility for County’s attorney’s fees, expenses or other costs. In any event, Grantee may not agree to any settlement of claims affecting the County without the County 's approval. (E) Non-waiver. The fact that Grantee carries out any activities under this Franchise through independent contractors shall not constitute an avoidance of or defense to Grantee's duty of defense and indemnification under this subsection. (F) Expenses. If separate representation to fully protect the interests of both parties is or becomes necessary, such as a conflict of interest between the County and the counsel selected by Grantee to represent the County, Grantee shall pay, from the date such separate representation is required forward, all reasonable expenses incurred by the County in defending itself with regard to any action, suit or proceeding indemnified by Grantee. Provided, however, that in the event that such separate representation is or becomes necessary, and County desires to hire counsel or any other outside experts or consultants and desires Grantee to pay those expenses, then the County shall be required to obtain Grantee’s consent to the engagement of such counsel, experts or consultants, such consent not to be unreasonably withheld. The County 's expenses shall include all reasonable out-of-pocket expenses, such as consultants' fees, and shall also include the reasonable value of any services rendered by the County Attorney or his/her assistants or any employees of the County or its agents but shall not include outside attorneys’ fees for services that are unnecessarily duplicative of services provided the County by Grantee. 5.2 Insurance (A) Grantee shall maintain in full force and effect at its own cost and expense each of the following policies of insurance: (1) Commercial General Liability insurance with limits of no less than one million dollars ($1,000,000.00) per occurrence and three million dollars ($3,000,000.00) general aggregate. Coverage shall be at least as broad as that provided by ISO CG 00 01 1/96 or its equivalent and include severability of interests. Such insurance shall name the County, its officers, officials and employees as additional insureds per ISO CG 2026 or its equivalent. There shall be a waiver of subrogation and rights of recovery against the County, its officers, officials and employees. Coverage shall apply as to claims between insureds on the policy, if applicable. (2) Commercial Automobile Liability insurance with minimum combined single limits of one million dollars ($1,000,000.00) each occurrence with respect to each of Grantee’s owned, hired and non-owned vehicles assigned to or used in the operation of the Cable System in the County. The policy shall contain a severability of interests provision. 19 (B) The insurance shall not be canceled or materially changed so as to be out of compliance with these requirements without thirty (30) days' written notice first provided to the County, via certified mail, and ten (10) days' notice for nonpayment of premium. If the insurance is canceled or materially altered so as to be out of compliance with the requirements of this subsection within the term of this Franchise, Grantee shall provide a replacement policy. Grantee agrees to maintain continuous uninterrupted insurance coverage, in at least the amounts required, for the duration of this Franchise and, in the case of the Commercial General Liability, for at least one (1) year after expiration of this Franchise. 5.3 Letter of Credit (A) If there is a claim by the County of an uncured breach by Grantee of a material provision of this Franchise or pattern of repeated violations of any provision(s) of this Franchise, then the County may require and Grantee shall establish and provide within thirty (30) days from receiving notice from the County, to the County as security for the faithful performance by Grantee of all of the provisions of this Franchise, a letter of credit from a financial institution satisfactory to the County in the amount of twenty-five thousand dollars ($25,000.00). (B) In the event that Grantee establishes a letter of credit pursuant to the procedures of this Section, then the letter of credit shall be maintained at twenty-five thousand dollars ($25,000) until the allegations of the uncured breach have been resolved. (C) As an alternative to the provision of a Letter of Credit to the County as set forth in Subsections 5.4 (A) and (B) above, if the County is a member of CCUA, and if Grantee provides a Letter of Credit to CCUA in an amount agreed to between Grantee and CCUA for the benefit of its members, in order to collectively address claims reference in 5.4 (A), Grantee shall not be required to provide a separate Letter of Credit to the County. (D) After completion of the procedures set forth in Section 13.1 or other applicable provisions of this Franchise, the letter of credit may be drawn upon by the County for purposes including, but not limited to, the following: (1) Failure of Grantee to pay the County sums due under the terms of this Franchise; (2) Reimbursement of costs borne by the County to correct Franchise violations not corrected by Grantee; (3) Monetary remedies or damages assessed against Grantee due to default or breach of Franchise requirements; and, (4) Failure to comply with the Customer Service Standards of the County, as the same may be amended from time to time by the County Council acting by ordinance or resolution. 20 (E) The County shall give Grantee written notice of any withdrawal under this subsection upon such withdrawal. Within seven (7) days following receipt of such notice, Grantee shall restore the letter of credit to the amount required under this Franchise. (F) Grantee shall have the right to appeal to the County Council for reimbursement in the event Grantee believes that the letter of credit was drawn upon improperly. Grantee shall also have the right of judicial appeal if Grantee believes the letter of credit has not been properly drawn upon in accordance with this Franchise. Any funds the County erroneously or wrongfully withdraws from the letter of credit shall be returned to Grantee with interest, from the date of withdrawal at a rate equal to the prime rate of interest as quoted in the Wall Street Journal. SECTION 6. CUSTOMER SERVICE 6.1 Customer Service Standards Grantee shall comply with Customer Service Standards of the County, as the same may be amended from time to time by the County Council in its sole discretion, acting by ordinance or resolution. Any requirement in Customer Service Standards for a “local” telephone number may be met by the provision of a toll-free number. The Customer Services Standards in effect as of the Effective Date of this Franchise are attached as Exhibit A. Grantee reserves the right to challenge any customer service ordinance which it believes is inconsistent with its contractual rights under this Franchise. 6.2 Subscriber Privacy The Grantee shall comply with all applicable federal, state, and local privacy laws, including Section 631 of the Cable Act and regulations adopted pursuant thereto. 6.3 Subscriber Contracts Grantee shall not enter into a contract with any Subscriber which is in any way inconsistent with the terms of this Franchise, or any Exhibit hereto, or the requirements of any applicable Customer Service Standard. Upon request, Grantee will provide to the County a sample of the Subscriber contract or service agreement then in use. 6.4 Advance Notice to the County The Grantee shall use reasonable efforts to furnish information provided to Subscribers or the media in the normal course of business to the County in advance. 6.5 Identification of Local Franchise Authority on Subscriber Bills Within sixty (60) days after written request from the County, Grantee shall place the County’s phone number on its Subscriber bills, to identify where a Subscriber may call to address escalated complaints. 21 SECTION 7. BOOKS AND RECORDS 7.1 Open Records Grantee shall manage all of its operations in accordance with a policy of keeping its documents and records open and accessible to the County. The County, including the County’s Auditor or his/her authorized representative, shall have access to, and the right to inspect, any books and records of Grantee, its parent corporations and Affiliates which are reasonably related to the administration or enforcement of the terms of this Franchise. Grantee shall not deny the County access to any of Grantee's records on the basis that Grantee's records are under the control of any parent corporation, Affiliate or a third party. The County may, in writing, request copies of any such records or books and Grantee shall provide such copies within thirty (30) days of the transmittal of such request. One (1) copy of all reports and records required under this or any other subsection shall be furnished to the County, at the sole expense of Grantee. If the requested books and records are too voluminous, or for security reasons cannot be copied or removed, then Grantee may request, in writing within ten (10) days, that the County inspect them at Grantee's local offices. If any books or records of Grantee are not kept in a local office and not made available in copies to the County upon written request as set forth above, and if the County determines that an examination of such records is necessary or appropriate for the performance of any of the County's duties, administration or enforcement of this Franchise, then all reasonable travel and related expenses incurred in making such examination shall be paid by Grantee. 7.2 Confidentiality The County agrees to treat as confidential any books or records that constitute proprietary or confidential information under federal or State law, to the extent Grantee makes the County aware of such confidentiality. Grantee shall be responsible for clearly and conspicuously stamping the word "Confidential" on each page that contains confidential or proprietary information, and shall provide a brief written explanation as to why such information is confidential under State or federal law. If the County believes it must release any such confidential books and records in the course of enforcing this Franchise, or for any other reason, it shall advise Grantee in advance so that Grantee may take appropriate steps to protect its interests. If the County receives a demand from any Person for disclosure of any information designated by Grantee as confidential, the County shall, so far as consistent with Applicable Law, advise Grantee and provide Grantee with a copy of any written request by the party demanding access to such information within a reasonable time. Until otherwise ordered by a court or agency of competent jurisdiction, the County agrees that, to the extent permitted by State and federal law, it shall deny access to any of Grantee's books and records marked confidential as set forth above to any Person. Grantee shall reimburse the County for all reasonable costs and attorney’s fees incurred in any legal proceedings pursued under this Section. 22 7.3 Records Required (A) Grantee shall at all times maintain, and shall furnish to the County upon 30 days written request and subject to Applicable Law: (1) A complete set of maps showing the exact location of all Cable System equipment and facilities in the Right-of-Way, but excluding detail on proprietary electronics contained therein and Subscriber drops. As-built maps including proprietary electronics shall be available at Grantee's offices for inspection by the County’s authorized representative(s) or agent(s) and made available to such during the course of technical inspections as reasonably conducted by the County. These maps shall be certified as accurate by an appropriate representative of the Grantee; (2) A copy of all FCC filings on behalf of Grantee, its parent corporations or Affiliates which relate to the operation of the Cable System in the County; (3) A log of Cable Services added or dropped, Channel changes, number of Subscribers added or terminated, all construction activity, and total homes passed for the previous twelve (12) months; and (4) A list of Cable Services, rates and Channel line-ups. (B) Subject to subsection 7.2, all information furnished to the County is public information, and shall be treated as such, except for information involving the privacy rights of individual Subscribers. 7.4 Annual Reports Within sixty (60) days of the County’s written request, Grantee shall submit to the County a written report, in a form acceptable to the County, which shall include, but not necessarily be limited to, the following information for the County: (A) A Gross Revenue statement, as required by subsection 3.5 of this Franchise; (B) A summary of the previous year's activities in the development of the Cable System, including, but not limited to, Cable Services begun or discontinued during the reporting year, and the number of Subscribers for each class of Cable Service (i.e., Basic, Digital Starter, and Premium); (C) The number of homes passed, beginning and ending plant miles, any services added or dropped, and any technological changes occurring in the Cable System; (D) A statement of planned construction, if any, for the next year; and, (E) A copy of the most recent annual report Grantee filed with the SEC or other governing body. 23 The parties agree that the County’s request for these annual reports shall remain effective, and need only be made once. Such a request shall require the Grantee to continue to provide the reports annually, until further written notice from the County to the contrary. 7.5 Copies of Federal and State Reports Within thirty (30) days of a written request, Grantee shall submit to the County copies of all pleadings, applications, notifications, communications and documents of any kind, submitted by Grantee or its parent corporation(s), to any federal, State or local courts, regulatory agencies and other government bodies if such documents directly relate to the operations of Grantee's Cable System within the County. Grantee shall not claim confidential, privileged or proprietary rights to such documents unless under federal, State, or local law such documents have been determined to be confidential by a court of competent jurisdiction, or a federal or State agency. 7.6 Complaint File and Reports (A) Grantee shall keep an accurate and comprehensive file of any complaints regarding the Cable System, in a manner consistent with the privacy rights of Subscribers, and Grantee's actions in response to those complaints. These files shall remain available for viewing to the County during normal business hours at Grantee’s local business office. (B) Within thirty (30) days of a written request, Grantee shall provide the County a quarterly executive summary in the form attached hereto as Exhibit B, which shall include the following information from the preceding quarter: (1) A summary of service calls, identifying the number and nature of the requests and their disposition; (2) A log of all service interruptions; (3) A summary of customer complaints referred by the County to Grantee; (4) Such other information as reasonably requested by the County. and, The parties agree that the County’s request for these summary reports shall remain effective, and need only be made once. Such a request shall require the Grantee to continue to provide the reports quarterly, until further written notice from the County to the contrary. 7.7 Failure to Report The failure or neglect of Grantee to file any of the reports or filings required under this Franchise or such other reports as the County may reasonably request (not including clerical errors or errors made in good faith), may, at the County's option, be deemed a breach of this Franchise. 24 7.8 False Statements Any false or misleading statement or representation in any report required by this Franchise (not including clerical errors or errors made in good faith) may be deemed a material breach of this Franchise and may subject Grantee to all remedies, legal or equitable, which are available to the County under this Franchise or otherwise. SECTION 8. PROGRAMMING 8.1 Broad Programming Categories Grantee shall provide or enable the provision of at least the following initial broad categories of programming to the extent such categories are reasonably available: (A) Educational programming; (B) Colorado news, weather & information; (C) Sports; (D) General entertainment (including movies); (E) Children/family-oriented; (F) Arts, culture and performing arts; (G) Foreign language; (H) Science/documentary; (I) National news, weather and information; and, (J) Franchise. 8.2 Public, Educational and Government Access, to the extent required by this Deletion or Reduction of Broad Programming Categories (A) Grantee shall not delete or so limit as to effectively delete any broad category of programming within its control without the prior written consent of the County. (B) In the event of a modification proceeding under federal law, the mix and quality of Cable Services provided by Grantee on the Effective Date of this Franchise shall be deemed the mix and quality of Cable Services required under this Franchise throughout its term. 25 8.3 Obscenity Grantee shall not transmit, or permit to be transmitted over any Channel subject to its editorial control, any programming which is obscene under, or violates any provision of, Applicable Law relating to obscenity, and is not protected by the Constitution of the United States. Grantee shall be deemed to have transmitted or permitted a transmission of obscene programming only if a court of competent jurisdiction has found that any of Grantee's officers or employees or agents have permitted programming which is obscene under, or violative of, any provision of Applicable Law relating to obscenity, and is otherwise not protected by the Constitution of the United States, to be transmitted over any Channel subject to Grantee's editorial control. Grantee shall comply with all relevant provisions of federal law relating to obscenity. 8.4 Parental Control Device Upon request by any Subscriber, Grantee shall make available a parental control or lockout device, traps or filters to enable a Subscriber to control access to both the audio and video portions of any or all Channels. Grantee shall inform its Subscribers of the availability of the lockout device at the time of their initial subscription and periodically thereafter. Any device offered shall be at a rate, if any, in compliance with Applicable Law. 8.5 Continuity of Service Mandatory (A) It shall be the right of all Subscribers to continue to receive Cable Service from Grantee insofar as their financial and other obligations to Grantee are honored and they are in compliance with Grantee’s terms of services, residential service agreement or other such provisions. The Grantee shall act so as to ensure that all Subscribers receive continuous, uninterrupted Cable Service regardless of the circumstances. For the purposes of this subsection, "uninterrupted" does not include short-term outages of the Cable System for maintenance or testing. (B) In the event of a change of grantee, or in the event a new Cable Operator acquires the Cable System in accordance with this Franchise, Grantee shall cooperate with the County, new franchisee or Cable Operator in maintaining continuity of Cable Service to all Subscribers. During any transition period, Grantee shall be entitled to the revenues for any period during which it operates the Cable System, and shall be entitled to reasonable costs for its services when it no longer operates the Cable System. (C) In the event Grantee fails to operate the Cable System for four (4) consecutive days without prior approval of the Manager, or without just cause, the County may, at its option, operate the Cable System itself or designate another Cable Operator until such time as Grantee restores service under conditions acceptable to the County or a permanent Cable Operator is selected. If the County is required to fulfill this obligation for Grantee, Grantee shall reimburse the County for all reasonable costs or damages that are the result of Grantee's failure to perform. 26 8.6 Services for the Disabled Grantee shall comply with the Americans with Disabilities Act and any amendments thereto. SECTION 9. ACCESS 9.1 Designated Access Providers (A) The County shall have the sole and exclusive responsibility for identifying the Designated Access Providers, including itself for Access purposes, to control and manage the use of any or all Access Facilities provided by Grantee under this Franchise. As used in this Section, such “Access Facilities” includes the Channels, services, facilities, equipment, technical components and/or financial support provided under this Franchise, which is used or useable by and for Public Access, Educational Access, and Government Access (“PEG” or “PEG Access”). (B) Grantee shall cooperate with County in County’s efforts to provide Access programming, but will not be responsible or liable for any damages resulting from a claim in connection with the programming placed on the Access Channels by the Designated Access Provider. 9.2 Channel Capacity and Use (A) Grantee shall make available to the County up to five (5) Downstream Channels for PEG use as provided for in this Section. The Downstream Channels allocated under this Section are the same common channels that Grantee shall make available to Pitkin County, the City of Aspen, and the Town of Snowmass Village, and all five (5) of these Channels will be available on the program lineup in the Town of Basalt. It is intended that these five (5) common Downstream Channels will be used for the provision of programming to subscribers of PEG programming by the four communities, and the individual jurisdictions and educational institutions therein. (B) Grantee shall have the right to temporarily use any Channel, or portion thereof, which is allocated under this Section for Public, Educational, or Governmental Access use, within sixty (60) days after a written request for such use is submitted to the County, if such Channel is not "fully utilized" as defined herein. A Channel shall be considered fully utilized if substantially unduplicated programming is delivered over it more than an average of 38 hours per week over a six (6) month period. Since the Access Channels are shared by multiple local franchising authorities, the total amount of programming delivered by all such entities shall be used in calculating whether a Channel is fully utilized as described herein. Programming that is repeated on an Access Channel up to two times per day shall be considered “unduplicated programming.” Character-generated programming shall be included for purposes of this subsection, but may be counted towards the total average hours only with respect to two (2) Channels provided to the County. If a Channel allocated for Public, Educational, or Governmental Access use will be used by Grantee in accordance with the terms of this subsection, the institution to which the Channel has been allocated shall have the right to require 27 the return of the Channel or portion thereof. The County shall request return of such Channel space by delivering written notice to Grantee stating that the institution is prepared to fully utilize the Channel, or portion thereof, in accordance with this subsection. In such event, the Channel or portion thereof shall be returned to such institution within sixty (60) days after receipt by Grantee of such written notice. (C) Standard Definition (“SD”) Digital Access Channels. (1) Grantee shall provide three (3) Activated Downstream Channels for PEG Access use in a standard definition (“SD”) digital format in Grantee’s Basic Service (“SD Access Channel”). Grantee shall carry all components of the SD Access Channel Signals provided by a Designated Access Provider including, but not limited to, closed captioning, stereo audio and other elements associated with the Programming. A Designated Access Provider shall be responsible for providing the SD Access Channel Signal in an SD format to the demarcation point at the designated point of origination for the SD Access Channel. Grantee shall transport and distribute the SD Access Channel signal on its Cable System and shall not unreasonably discriminate against SD Access Channels with respect to accessibility, functionality and to the application of any applicable Federal Communications Commission Rules & Regulations, including without limitation Subpart K Channel signal standards. (2) With respect to signal quality, Grantee shall not be required to carry a SD Access Channel in a higher quality format than that of the SD Access Channel signal delivered to Grantee, but Grantee shall distribute the SD Access Channel signal without degradation. Upon reasonable written request by a Designated Access Provider, Grantee shall verify signal delivery to Subscribers with the Designated Access Provider, consistent with the requirements of this Section 9.2(C). (3) Grantee shall be responsible for costs associated with the transmission of SD Access signals on its side of the demarcation point which for the purposes of this Section 9.2 (C)(3), shall mean up to and including the modulator where the County signal is converted into a format to be transmitted over a fiber connection to Grantee. The County or Designated Access Provider shall be responsible for costs associated with SD Access signal transmission on its side of the demarcation point. (4) SD Access Channels may require Subscribers to buy or lease special equipment, available to all Subscribers, and subscribe to those tiers of Cable Service, upon which SD channels are made available. Grantee is not required to provide free SD equipment to Subscribers, including complimentary government and educational accounts, nor modify its equipment or pricing policies in any manner. (D) High Definition (“HD”) Digital Access Channels. (1) After the Effective Date and within one hundred twenty (120) days’ written notice, Grantee shall activate one (1) HD Access Channels, for which the County may provide Access Channel signals in HD format to the demarcation point at the designated point of 28 origination for the Access Channel. Beginning two (2) years after the Effective Date, and no later than one hundred twenty (120) days after written notice, Grantee shall activate a second HD channel. (a) The County shall, in its written notice to Grantee as provided for in this Section, confirm that it or its Designated Access Provider has the capabilities to produce, has been producing and will produce programming in an HD format for the newly activated HD Access Channel(s); and, (b) There will be a minimum of five (5) hours per-day, five days per-week of HD PEG programming available for each HD Access Channel. For the purposes of this subsection, character-generated programming (i.e., community bulletin boards) shall not satisfy, in whole or in part, this programming requirement. (2) The County shall be responsible for providing the HD Access Channel signal in an HD digital format to the demarcation point at the designated point of origination for the HD Access Channel. For purposes of this Franchise, an HD signal refers to a television signal delivering picture resolution of either 720p or 1080i, or such other resolution in this same range that Grantee utilizes for other similar non-sport, non-movie programming channels on the Cable System, whichever is greater. (3) Grantee shall transport and distribute the HD Access Channel signal on its Cable System and shall not unreasonably discriminate against HD Access Channels with respect to accessibility, functionality and to the application of any applicable Federal Communications Commission Rules & Regulations, including without limitation Subpart K Channel signal standards. With respect to signal quality, Grantee shall not be required to carry a HD Access Channel in a higher quality format than that of the HD Access Channel signal delivered to Grantee, but Grantee shall distribute the HD Access Channel signal without degradation. Grantee shall carry all components of the HD Access Channel signals provided by the Designated Access Provider including, but not limited to, closed captioning, stereo audio and other elements associated with the Programming. Upon reasonable written request by the County, Grantee shall verify signal delivery to Subscribers with the County, consistent with the requirements of this Section 9.2(D). (4) HD Access Channels may require Subscribers to buy or lease special equipment, available to all Subscribers, and subscribe to those tiers of Cable Service, upon which HD channels are made available. Grantee is not required to provide free HD equipment to Subscribers, including complimentary government and educational accounts, nor modify its equipment or pricing policies in any manner. (5) The County or any Designated Access Provider is responsible for acquiring all equipment necessary to produce programming in HD. (6) Grantee shall cooperate with the County to procure and provide, at the County’s cost, all necessary transmission equipment from the Designated Access Provider channel origination point, at Grantee’s headend and through Grantee’s distribution system, in order to 29 deliver the HD Access Channels. The County shall be responsible for the costs of all transmission equipment, including HD modulator and demodulator, and encoder or decoder equipment, and multiplex equipment, required in order for Grantee to receive and distribute the HD Access Channel signal, or for the cost of any resulting upgrades to the video return line. The County and Grantee agree that such expense of acquiring and installing the transmission equipment or upgrades to the video return line qualifies as a capital cost for PEG Facilities within the meaning of the Cable Act 47 U.S.C.A. Section 542(g)(20)(C), and therefore is an appropriate use of revenues derived from those PEG Capital fees provided for in this Franchise. (E) Grantee shall simultaneously carry the two (2) initial HD Access Channels provided for in Section 9.2(D) in high definition format on the Cable System, in addition to simultaneously carrying in standard definition format the SD Access Channels provided pursuant to Subsection 9.2(C). (F) There shall be no restriction on Grantee’s technology used to deploy and deliver SD or HD signals so long as the requirements of the Franchise are otherwise met. Grantee may implement HD carriage of the PEG channel in any manner (including selection of compression, utilization of IP, and other processing characteristics) that produces a signal quality for the consumer that is reasonably comparable and functionally equivalent to similar commercial HD channels carried on the Cable System. In the event the County believes that Grantee fails to meet this standard, the County will notify Grantee of such concern, and Grantee will respond to any complaints in a timely manner. 9.3 Access Channel Assignments and Relocation Grantee shall use its best efforts to minimize the movement of SD and HD Access Channel assignments. Grantee shall provide the County a minimum of sixty (60) days' notice, and use its best efforts to provide one hundred and twenty (120) days’ notice, prior to the time Public, Educational, and Governmental Access Channel designations are changed. In addition, Grantee will make reasonable efforts to locate HD Access Channels provided pursuant to Subsection 9.2(D) in a location on its HD Channel line-up that is easily accessible to Subscribers. 9.4 Web-Based Video On Demand and Streaming (A) After the Effective Date and within one hundred twenty (120) days’ written notice, Grantee shall provide at no cost to the County Administration and Sheriff’s Office at 530 East Main Street, Aspen a business class broadband connection, broadband service and all necessary hardware, to enable the County’s delivery of web-based PEG content. If, during the term of this Franchise, the jurisdictions within Pitkin County move the location and such new location does not have the capacity to connect and receive the broadband service described in this Section 9.4(A), the cost of upgrading the network to enable such service shall be incurred by the County and the other jurisdictions. The broadband connection provided herein shall be used exclusively for web-based on demand Access programming and/or web-based video streaming of Access content. Within ninety (90) days after written request of the County, Grantee shall additionally provide a one-time grant of funding, which the County and the other jurisdictions in 30 the County shall use to acquire and/or for replacement costs for a video on demand server for facilitating the web-based Access programming described in this Section 9.4. The grant of funding allocated under this Section is a collective grant that Grantee is providing in the franchise agreements of each participating member community - Pitkin County, the City of Aspen, the Town of Snowmass Village and the Town of Basalt. The total amount of this collective grant shall not exceed twenty thousand dollars ($20,000). (B) The County’s Designated Access Provider(s) may provide web-based video on demand programming on line; provided however, that such Designated Access Provider(s) shall be responsible for its own costs related to a video on demand server, broadband connection and service and any other associated equipment. (C) For all of the County’s and its Designated Access Provider’s web-based on demand Access programming facilitated through the broadband connection and service described in this Section 9.4, Grantee shall be permitted to provide its logo which shall be displayed on the main web page for the web-based Access programming. Notwithstanding the foregoing, the size of the County’s or Designated Access Provider’s logos may be as large as or larger than Grantee’s logo, in the County’s or Designated Access Provider’s sole reasonable discretion. (D) Any costs incurred by Grantee in facilitating the web-based on demand Access programming described in this Section 9.4 may be recovered from Subscribers by Grantee in accordance with Applicable Law. 9.5 Support for Access Costs During the term of this Franchise Agreement, Grantee shall continue provide fifty cents ($0.50) per month per Residential Subscriber (the "PEG Contribution") to be used solely for capital costs related to Public, Educational and Governmental Access and the web based on demand Access programming described in Section 9.4, or as may be permitted by Applicable Law. To address inflationary impacts on capital equipment or to evaluate whether the County’s PEG Access capital costs have reduced with time, the County and Grantee may meet no more than three times after the Effective Date to discuss whether to increase or to decrease the PEG Contribution. The primary purpose of such meetings will be for the parties to review prior expenditures and future capital plans to determine if the current PEG Contribution is reasonably appropriate to meet future needs. The County and Grantee may suggest to each other, based upon their own assessments of reasonable past practices and future anticipated needs, whether the current level of PEG Contribution is appropriate. If either party believes that the PEG Contribution should be modified in a reasonable amount to address such future needs the parties shall share all relevant information supporting their positions and negotiate in good faith to determine if the PEG Contribution should be increased or decreased, and if so, in what amount. Such discussions regarding potential adjustment to the PEG Contribution will be conducted pursuant to the Franchise amendment procedures in Section 4.8 of this Franchise. Grantee shall make PEG Contribution payments quarterly, following the effective date of this Franchise Agreement for the preceding quarter ending March 31, June 30, September 30, and December 31. Each payment shall be due and payable no later than forty-five (45) days following the end of the quarter. The County shall have sole discretion to allocate the expenditure of such payments 31 for any capital costs related to PEG Access. The parties agree that this Franchise shall provide the County discretion to utilize Access payments for new internal network connections and enhancements to the County’s existing network. 9.6 Access Support Not Franchise Fees Grantee agrees that capital support for Access Costs arising from or relating to the obligations set forth in this Section shall in no way modify or otherwise affect Grantee's obligations to pay Franchise Fees to the County. Grantee agrees that although the sum of Franchise Fees plus the payments set forth in this Section may total more than five percent (5%) of Grantee's Gross Revenues in any 12-month period, the additional commitments shall not be offset or otherwise credited in any way against any Franchise Fee payments under this Franchise Agreement so long as such support is used for capital Access purposes consistent with this Franchise and federal law. 9.7 Access Channels On Basic Service or Lowest Priced HD Service Tier All SD Access Channels under this Franchise Agreement shall be included by Grantee, without limitation, as part of Basic Service. All HD Access Channels under this Franchise Agreement shall be included by Grantee, without limitation, as part of the lowest priced tier of HD Cable Service upon which Grantee provides HD programming content. 9.8 Change In Technology In the event Grantee makes any change in the Cable System and related equipment and Facilities or in Grantee's signal delivery technology, which directly or indirectly affects the signal quality or transmission of Access services or programming, Grantee shall at its own expense take necessary technical steps or provide necessary technical assistance, including the acquisition of all necessary equipment, and full training of the County’s Access personnel to ensure that the capabilities of Access services are not diminished or adversely affected by such change. If the County implements a new video delivery technology that is currently offered and can be accommodated on the Grantee’s local Cable System then the same provisions above shall apply. If the County implements a new video delivery technology that is not currently offered on and/or that cannot be accommodated by the Grantee’s local Cable System, then the County shall be responsible for acquiring all necessary equipment, facilities, technical assistance, and training to deliver the signal to the Grantee’s headend for distribution to subscribers. 9.9 Technical Quality Grantee shall maintain all upstream and downstream Access services and Channels on its side of the demarcation point at the same level of technical quality and reliability required by this Franchise Agreement and all other applicable laws, rules and regulations for Residential Subscriber Channels. Grantee shall provide routine maintenance for all transmission equipment on its side of the demarcation point, including modulators, decoders, multiplex equipment, and associated cable and equipment necessary to carry a quality signal to and from the County’s facilities for the Access Channels provided under this Franchise Agreement, including the 32 business class broadband equipment and services necessary for the video on demand and streaming service described in Section 9.4. Grantee shall also provide, if requested in advance by the County, advice and technical expertise regarding the proper operation and maintenance of transmission equipment on the County’s side of the demarcation point. The County shall be responsible for all initial and replacement costs of all HD modulator and demodulator equipment, web-based video on demand servers and web-based video streaming servers. The County shall also be responsible, at its own expense, to replace any of the Grantee’s equipment that is damaged by the gross negligence or intentional acts of County staff. The Grantee shall be responsible, at its own expense, to replace any of the County’s equipment that is damaged by the gross negligence or intentional acts of Grantee’s staff. The County will be responsible for the cost of repairing and/or replacing any HD PEG Access and web-based video on demand transmission equipment that Grantee maintains that is used exclusively for transmission of the County’s and/or its Designated Access Providers’ HD Access programming. 9.10 Access Cooperation The County may designate any other jurisdiction which has entered into an agreement with Grantee or an Affiliate of Grantee based upon this Franchise Agreement, any CCUA member, the CCUA, or any combination thereof to receive any Access benefit due the County hereunder, or to share in the use of Access Facilities hereunder. The purpose of this subsection shall be to allow cooperation in the use of Access and the application of any provision under this Section as the County in its sole discretion deems appropriate, and Grantee shall cooperate fully with, and in, any such arrangements by the County. 9.11 Return Lines (A) Grantee shall, at its expense, maintain the existing operating return lines sufficient to enable character generated, prerecorded and live cablecasts from Pitkin County Administration and Sheriff’s Office building located at 530 East Main Street, Aspen, CO 81611; Pitkin County Library, 120 North Mill Street, Aspen, CO 81611; Aspen City Hall located at 130 South Galena, Aspen, CO 81611; Pitkin County Airport, located at 233 East Airport Road, Suite A, Aspen, CO 81612, Snowmass Village Town Hall, 130 Kearns Road, Snowmass Village, CO 81615, and the Grass Roots TV studio located at 110 East Hallam Street in Aspen to the Headend to enable the distribution of Access programming to Subscribers. Grantee shall not be required to maintain return lines to the Grass Roots TV studio if the County ceases to use Grass Roots as a Designated Access Provider. (B) Grantee shall construct and maintain new Fiber Optic return lines to the Headend from production facilities of new or relocated Designated Access Providers delivering Access programming to Residential Subscribers as requested in writing by the County. All actual construction costs incurred by Grantee from the nearest interconnection point to the Designated Access Provider shall be paid by the County or the Designated Access Provider. New return lines shall be completed within one (1) year from the request of the County or its Designated Access Provider, or as otherwise agreed to by the parties. If an emergency situation necessitates movement of production facilities to a new location, the parties shall work together to complete the new return line as soon as reasonably possible. 33 (C) Return lines shall be maintained by Grantee in the same manner as the rest of the Cable System so that Access Channels may be viewed at the same quality that is provided by the County or its Designated Access Provider. SECTION 10. GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION 10.1 Right to Construct Subject to Applicable Law, regulations, rules, resolutions and ordinances of the County and the provisions of this Franchise, Grantee may perform all construction in the Rights-of-Way for any facility needed for the maintenance or extension of Grantee's Cable System. 10.2 Right-of-Way Meetings Grantee will regularly attend and participate in meetings of the County, of which the Grantee is made aware, regarding Right-of-Way issues that may impact the Cable System. 10.3 Joint Trenching/Boring Meetings Grantee will regularly attend and participate in planning meetings of the County, of which the Grantee is made aware, to anticipate joint trenching and boring. Whenever it is possible and reasonably practicable to joint trench or share bores or cuts, Grantee shall work with other providers, licensees, permittees, and franchisees so as to reduce so far as possible the number of Right-of-Way cuts within the County. 10.4 General Standard All work authorized and required hereunder shall be done in a safe, thorough and workmanlike manner. All installations of equipment shall be permanent in nature, durable and installed in accordance with good engineering practices. 10.5 Permits Required for Construction Prior to doing any work in the Right-of Way or other public property, Grantee shall apply for, and obtain, appropriate permits from the County. As part of the permitting process, the County may impose such conditions and regulations as are necessary for the purpose of protecting any structures in such Rights-of-Way, proper restoration of such Rights-of-Way and structures, the protection of the public, and the continuity of pedestrian or vehicular traffic. Such conditions may also include the provision of a construction schedule and maps showing the location of the facilities to be installed in the Right-of-Way. Grantee shall pay all applicable fees for the requisite County permits received by Grantee. 34 10.6 Emergency Permits In the event that emergency repairs are necessary, Grantee shall immediately notify the County of the need for such repairs. Grantee may initiate such emergency repairs, and shall apply for appropriate permits within forty-eight (48) hours after discovery of the emergency. 10.7 Compliance with Applicable Codes (A) County Construction Codes. Grantee shall comply with all applicable County construction codes, including, without limitation, the International Building Code and other building codes, the Uniform Fire Code, the Uniform Mechanical Code, the Electronic Industries Association Standard for Physical Location and Protection of Below-Ground Fiber Optic Cable Plant, and zoning codes and regulations. (B) Tower Specifications. Antenna supporting structures (towers) shall be designed for the proper loading as specified by the Electronics Industries Association (EIA), as those specifications may be amended from time to time. Antenna supporting structures (towers) shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and all other applicable federal, State, and local codes or regulations. (C) Safety Codes. Grantee shall comply with all federal, State and County safety requirements, rules, regulations, laws and practices, and employ all necessary devices as required by Applicable Law during construction, operation and repair of its Cable System. By way of illustration and not limitation, Grantee shall comply with the National Electric Code, National Electrical Safety Code and Occupational Safety and Health Administration (OSHA) Standards. 10.8 GIS Mapping Grantee shall comply with any generally applicable ordinances, rules and regulations of the County regarding geographic information mapping systems for users of the Rights-of-Way. 10.9 Minimal Interference Work in the Right-of-Way, on other public property, near public property, or on or near private property shall be done in a manner that causes the least interference with the rights and reasonable convenience of property owners and residents. Grantee's Cable System shall be constructed and maintained in such manner as not to interfere with sewers, water pipes, or any other property of the County, or with any other pipes, wires, conduits, pedestals, structures, or other facilities that may have been laid in the Rights-of-Way by, or under, the County’s authority. The Grantee's Cable System shall be located, erected and maintained so as not to endanger or interfere with the lives of Persons, or to interfere with new improvements the County may deem proper to make or to unnecessarily hinder or obstruct the free use of the Rights-of-Way or other public property, and shall not interfere with the travel and use of public places by the public during the construction, repair, operation or removal thereof, and shall not obstruct or impede traffic. In the event of such interference, the County may require the removal 35 or relocation of Grantee’s lines, cables, equipment and other appurtenances from the property in question at Grantee’s expense. 10.10 Prevent Injury/Safety Grantee shall provide and use any equipment and facilities necessary to control and carry Grantee's signals so as to prevent injury to the County's property or property belonging to any Person. Grantee, at its own expense, shall repair, renew, change and improve its facilities to keep them in good repair, and safe and presentable condition. All excavations made by Grantee in the Rights-of-Way shall be properly safeguarded for the prevention of accidents by the placement of adequate barriers, fences or boarding, the bounds of which, during periods of dusk and darkness, shall be clearly designated by warning lights. 10.11 Hazardous Substances (A) Grantee shall comply with any and all Applicable Laws, statutes, regulations and orders concerning hazardous substances relating to Grantee's Cable System in the Rights-ofWay. (B) Upon reasonable notice to Grantee, the County may inspect Grantee's facilities in the Rights-of-Way to determine if any release of hazardous substances has occurred, or may occur, from or related to Grantee's Cable System. In removing or modifying Grantee's facilities as provided in this Franchise, Grantee shall also remove all residue of hazardous substances related thereto. (C) Grantee agrees to indemnify the County against any claims, costs, and expenses, of any kind, whether direct or indirect, incurred by the County arising out of a release of hazardous substances caused by Grantee's Cable System. 10.12 Locates Prior to doing any work in the Right-of-Way, Grantee shall give appropriate notices to the County and to the notification association established in C.R.S. Section 9-1.5-105, as such may be amended from time to time. Within forty-eight (48) hours after any County bureau or franchisee, licensee or permittee notifies Grantee of a proposed Right-of-Way excavation, Grantee shall, at Grantee's expense: (A) Mark on the surface all of its located underground facilities within the area of the proposed excavation; (B) Notify the excavator of any unlocated underground facilities in the area of the proposed excavation; or (C) Notify the excavator that Grantee does not have any underground facilities in the vicinity of the proposed excavation. 36 10.13 Notice to Private Property Owners Grantee shall give notice to private property owners of work on or adjacent to private property in accordance with the County’s Customer Service Standards, as the same may be amended from time to time by the Commissioners acting by Ordinance or resolution. 10.14 Underground Construction and Use of Poles (A) When required by general ordinances, resolutions, regulations or rules of the County or applicable State or federal law, Grantee's Cable System shall be placed underground at Grantee's expense unless funding is generally available for such relocation to all users of the Rights-of-Way. Placing facilities underground does not preclude the use of ground-mounted appurtenances. (B) Where electric, telephone, and other above-ground utilities are installed underground at the time of Cable System construction, or when all such wiring is subsequently placed underground, all Cable System lines shall also be placed underground with other wireline service at no expense to the County or Subscribers unless funding is generally available for such relocation to all users of the Rights-of-Way. Related Cable System equipment, such as pedestals, must be placed in accordance with the County’s applicable code requirements and rules. In areas where either electric or telephone utility wiring is aerial, the Grantee may install aerial cable, except when a property owner or resident requests underground installation and agrees to bear the additional cost in excess of aerial installation. (C) The Grantee shall utilize existing poles and conduit wherever possible. (D) In the event Grantee cannot obtain the necessary poles and related facilities pursuant to a pole attachment agreement, and only in such event, then it shall be lawful for Grantee to make all needed excavations in the Rights-of-Way for the purpose of placing, erecting, laying, maintaining, repairing, and removing poles, supports for wires and conductors, and any other facility needed for the maintenance or extension of Grantee's Cable System. All poles of Grantee shall be located as designated by the proper County authorities. (E) This Franchise does not grant, give or convey to the Grantee the right or privilege to install its facilities in any manner on specific utility poles or equipment of the County or any other Person. Copies of agreements for the use of poles, conduits or other utility facilities must be provided upon request by the County. 10.15 Undergrounding of Multiple Dwelling Unit Drops In cases of single site Multiple Dwelling Units, Grantee shall minimize the number of individual aerial drop cables by installing multiple drop cables underground between the pole and Multiple Dwelling Unit where determined to be technologically feasible in agreement with the owners and/or owner's association of the Multiple Dwelling Units. 37 10.16 Burial Standards (A) Depths. Unless otherwise required by law, Grantee, and its contractors, shall comply with the following burial depth standards. In no event shall Grantee be required to bury its cable deeper than electric or gas facilities, or existing telephone facilities in the same portion of the Right-of-Way, so long as those facilities have been buried in accordance with Applicable Law: Underground cable drops from the curb shall be buried at a minimum depth of twelve (12) inches, unless a sprinkler system or other construction concerns preclude it, in which case, underground cable drops shall be buried at a depth of at least six (6) inches. Feeder lines shall be buried at a minimum depth of eighteen (18) inches. Trunk lines shall be buried at a minimum depth of thirty-six (36) inches. Fiber Optic cable shall be buried at a minimum depth of thirty-six (36) inches. In the event of a conflict between this subsection and the provisions of any customer service standard, this subsection shall control. (B) Timeliness. Cable drops installed by Grantee to residences shall be buried according to these standards within one calendar week of initial installation, or at a time mutually-agreed upon between the Grantee and the Subscriber. When freezing surface conditions prevent Grantee from achieving such timetable, Grantee shall apprise the Subscriber of the circumstances and the revised schedule for burial, and shall provide the Subscriber with Grantee's telephone number and instructions as to how and when to call Grantee to request burial of the line if the revised schedule is not met. 10.17 Cable Drop Bonding Grantee shall ensure that all cable drops are properly bonded at the home, consistent with applicable code requirements. 10.18 Prewiring Any ordinance or resolution of the County which requires prewiring of subdivisions or other developments for electrical and telephone service shall be construed to include wiring for Cable Systems. 10.19 Repair and Restoration of Property (A) The Grantee shall protect public and private property from damage. If damage occurs, the Grantee shall promptly notify the property owner within twenty-four (24) hours in 38 writing. (B) Whenever Grantee disturbs or damages any Right-of-Way, other public property or any private property, Grantee shall promptly restore the Right-of-Way or property to at least its prior condition, normal wear and tear excepted, at its own expense. (C) Rights-of-Way and Other Public Property. Grantee shall warrant any restoration work performed by or for Grantee in the Right-of-Way or on other public property in accordance with Applicable Law. If restoration is not satisfactorily performed by the Grantee within a reasonable time, the County may, after prior notice to the Grantee, or without notice where the disturbance or damage may create a risk to public health or safety, cause the repairs to be made and recover the cost of those repairs from the Grantee. Within thirty (30) days of receipt of an itemized list of those costs, including the costs of labor, materials and equipment, the Grantee shall pay the County. (D) Private Property. Upon completion of the work which caused any disturbance or damage, Grantee shall promptly commence restoration of private property, and will use best efforts to complete the restoration within seventy-two (72) hours, considering the nature of the work that must be performed. Grantee shall also perform such restoration in accordance with the County’s Customer Service Standards, as the same may be amended from time to time by the County Council acting by ordinance or resolution. 10.20 Acquisition of Facilities Upon Grantee's acquisition of Cable System-related facilities in any County Right-ofWay, or upon the addition to the County of any area in which Grantee owns or operates any such facility, Grantee shall, at the County's request, submit to the County a statement describing all such facilities involved, whether authorized by franchise, permit, license or other prior right, and specifying the location of all such facilities to the extent Grantee has possession of such information. Such Cable System-related facilities shall immediately be subject to the terms of this Franchise. 10.21 Discontinuing Use/Abandonment of Cable System Facilities Whenever Grantee intends to discontinue using any facility within the Rights-of-Way, Grantee shall submit for the County's approval a complete description of the facility and the date on which Grantee intends to discontinue using the facility. Grantee may remove the facility or request that the County permit it to remain in place. Notwithstanding Grantee's request that any such facility remain in place, the County may require Grantee to remove the facility from the Right-of-Way or modify the facility to protect the public health, welfare, safety, and convenience, or otherwise serve the public interest. The County may require Grantee to perform a combination of modification and removal of the facility. Grantee shall complete such removal or modification in accordance with a schedule set by the County. Until such time as Grantee removes or modifies the facility as directed by the County, or until the rights to and responsibility for the facility are accepted by another Person having authority to construct and maintain such facility, Grantee shall be responsible for all necessary repairs and relocations of 39 the facility, as well as maintenance of the Right-of-Way, in the same manner and degree as if the facility were in active use, and Grantee shall retain all liability for such facility. If Grantee abandons its facilities, the County may choose to use such facilities for any purpose whatsoever including, but not limited to, Access purposes. 10.22 Movement of Cable System Facilities For County Purposes The County shall have the right to require Grantee to relocate, remove, replace, modify or disconnect Grantee's facilities and equipment located in the Rights-of-Way or on any other property of the County for public purposes, in the event of an emergency, or when the public health, safety or welfare requires such change (for example, without limitation, by reason of traffic conditions, public safety, Right-of-Way vacation, Right-of-Way construction, change or establishment of Right-of-Way grade, installation of sewers, drains, gas or water pipes, or any other types of structures or improvements by the County for public purposes). Such work shall be performed at the Grantee’s expense. Except during an emergency, the County shall provide reasonable notice to Grantee, not to be less than thirty (30) business days, and allow Grantee with the opportunity to perform such action. In the event of any capital improvement project exceeding $500,000 in expenditures by the County which requires the removal, replacement, modification or disconnection of Grantee's facilities or equipment, the County shall provide at least sixty (60) days' written notice to Grantee. Following notice by the County Grantee shall relocate, remove, replace, modify or disconnect any of its facilities or equipment within any Right-of-Way, or on any other property of the County. If the County requires Grantee to relocate its facilities located within the Rights-of-Way, the County shall make a reasonable effort to provide Grantee with an alternate location within the Rights-of-Way. If funds are generally made available to users of the Rights-of-Way for such relocation, Grantee shall be entitled to its pro rata share of such funds. If the Grantee fails to complete this work within the time prescribed and to the County's satisfaction, the County may cause such work to be done and bill the cost of the work to the Grantee, including all costs and expenses incurred by the County due to Grantee’s delay. In such event, the County shall not be liable for any damage to any portion of Grantee’s Cable System. Within thirty (30) days of receipt of an itemized list of those costs, the Grantee shall pay the County. 10.23 Reimbursement of Grantee Costs Grantee specifically reserves any rights it may have under Applicable Law for reimbursement of costs related to undergrounding or relocation of the Cable System and nothing herein shall be construed as a waiver of such rights. 10.24 Movement of Cable System Facilities for Other Franchise Holders If any removal, replacement, modification or disconnection of the Cable System is required to accommodate the construction, operation or repair of the facilities or equipment of another County franchise holder, Grantee shall, after at least thirty (30) days' advance written notice, take action to effect the necessary changes requested by the responsible entity. Grantee 40 may require that the costs associated with the removal or relocation be paid by the benefited party. 10.25 Temporary Changes for Other Permittees At the request of any Person holding a valid permit and upon reasonable advance notice, Grantee shall temporarily raise, lower or remove its wires as necessary to permit the moving of a building, vehicle, equipment or other item. The expense of such temporary changes must be paid by the permit holder, and Grantee may require a reasonable deposit of the estimated payment in advance. 10.26 Reservation of County Use of Right-of-Way Nothing in this Franchise shall prevent the County or public utilities owned, maintained or operated by public entities other than the County from constructing sewers; grading, paving, repairing or altering any Right-of-Way; laying down, repairing or removing water mains; or constructing or establishing any other public work or improvement. All such work shall be done, insofar as practicable, so as not to obstruct, injure or prevent the use and operation of Grantee's Cable System. 10.27 Tree Trimming Grantee may prune or cause to be pruned, using proper pruning practices, any tree in the County's Rights-of-Way which interferes with Grantee's Cable System. Grantee shall comply with any general ordinance or regulations of the County regarding tree trimming. Except in emergencies, Grantee may not prune trees at a point below thirty (30) feet above sidewalk grade until one (1) week written notice has been given to the owner or occupant of the premises abutting the Right-of-Way in or over which the tree is growing. The owner or occupant of the abutting premises may prune such tree at his or her own expense during this one (1) week period. If the owner or occupant fails to do so, Grantee may prune such tree at its own expense. For purposes of this subsection, emergencies exist when it is necessary to prune to protect the public or Grantee’s facilities from imminent danger only. 10.28 Inspection of Construction and Facilities The County may inspect any of Grantee's facilities, equipment or construction at any time upon at least twenty-four (24) hours’ notice, or, in case of emergency, upon demand without prior notice. The County shall have the right to charge generally applicable inspection fees therefore. If an unsafe condition is found to exist, the County, in addition to taking any other action permitted under Applicable Law, may order Grantee, in writing, to make the necessary repairs and alterations specified therein forthwith to correct the unsafe condition by a time the County establishes. The County has the right to correct, inspect, administer and repair the unsafe condition if Grantee fails to do so, and to charge Grantee therefore. 41 10.29 Stop Work (A) On notice from the County that any work is being performed contrary to the provisions of this Franchise, or in an unsafe or dangerous manner as determined by the County, or in violation of the terms of any applicable permit, laws, regulations, ordinances, or standards, the work may immediately be stopped by the County. (B) The stop work order shall: (1) Be in writing; (2) Be given to the Person doing the work, or posted on the work site; (3) Be sent to Grantee by overnight delivery at the address given herein; (4) Indicate the nature of the alleged violation or unsafe condition; and (5) Establish conditions under which work may be resumed. 10.30 Work of Contractors and Subcontractors Grantee's contractors and subcontractors shall be licensed and bonded in accordance with the County's ordinances, regulations and requirements. Work by contractors and subcontractors is subject to the same restrictions, limitations and conditions as if the work were performed by Grantee. Grantee shall be responsible for all work performed by its contractors and subcontractors and others performing work on its behalf as if the work were performed by it, and shall ensure that all such work is performed in compliance with this Franchise and other Applicable Law, and shall be jointly and severally liable for all damages and correcting all damage caused by them. It is Grantee's responsibility to ensure that contractors, subcontractors or other Persons performing work on Grantee's behalf are familiar with the requirements of this Franchise and other Applicable Law governing the work performed by them. SECTION 11. CABLE SYSTEM, TECHNICAL STANDARDS AND TESTING 11.1 Subscriber Network (A) Grantee’s Cable System shall be equivalent to or exceed technical characteristics of a traditional HFC 750 MHz Cable System and provide Activated Two-Way capability. The Cable System shall be capable of supporting video and audio. The Cable System shall deliver no less than one hundred ten (110) Channels of digital video programming services to Subscribers, provided that the Grantee reserves the right to use the bandwidth in the future for other uses based on market factors. 42 (B) Equipment must be installed so that all closed captioning programming received by the Cable System shall include the closed caption signal so long as the closed caption signal is provided consistent with FCC standards. Equipment must be installed so that all local signals received in stereo or with secondary audio tracks are retransmitted in those same formats. (C) All construction shall be subject to the County's permitting process. (D) Grantee and County shall meet, at the County's request, to discuss the progress of the design plan and construction. (E) Grantee will take prompt corrective action if it finds that any facilities or equipment on the Cable System are not operating as expected, or if it finds that facilities and equipment do not comply with the requirements of this Franchise or Applicable Law. (F) Grantee's construction decisions shall be based solely upon legitimate engineering decisions and shall not take into consideration the income level of any particular community within the Franchise Area. 11.2 Technology Assessment (A) The County may notify Grantee on or after five (5) years after the Effective Date, that the County will conduct a technology assessment of Grantee’s Cable System. The technology assessment may include, but is not be limited to, determining whether Grantee's Cable System technology and performance are consistent with current technical practices and range and level of services existing in the fifteen (15) largest U.S. cable systems owned and operated by Grantee’s Parent Corporation and/or Affiliates pursuant to franchises that have been renewed or extended since the Effective Date. (B) Grantee shall cooperate with the County to provide necessary non-confidential and proprietary information upon the County’s reasonable request as part of the technology assessment. (C) At the discretion of the County, findings from the technology assessment may be included in any proceeding commenced for the purpose of identifying future cable-related community needs and interests undertaken by the County pursuant to 47 U.S.C. §546. 11.3 Standby Power Grantee’s Cable System Headend shall be capable of providing at least twelve (12) hours of emergency operation. In addition, throughout the term of this Franchise, Grantee shall have a plan in place, along with all resources necessary for implementing such plan, for dealing with outages of more than four (4) hours. This outage plan and evidence of requisite implementation resources shall be presented to the County no later than thirty (30) days following receipt of a request. 43 11.3 Emergency Alert Capability Grantee shall provide an operating Emergency Alert System (“EAS”) throughout the term of this Franchise in compliance with FCC standards. Grantee shall test the EAS as required by the FCC. Upon request, the County shall be permitted to participate in and/or witness the EAS testing up to twice a year on a schedule formed in consultation with Grantee. If the test indicates that the EAS is not performing properly, Grantee shall make any necessary adjustment to the EAS, and the EAS shall be retested. 11.4 Technical Performance The technical performance of the Cable System shall meet or exceed all applicable federal (including, but not limited to, the FCC), and State technical standards, as they may be amended from time to time, regardless of the transmission technology utilized. The County shall have the full authority permitted by Applicable Law to enforce compliance with these technical standards. 11.5 Cable System Performance Testing (A) System: Grantee shall, at Grantee's expense, perform the following tests on its Cable (1) All tests required by the FCC; (2) All other tests reasonably necessary to determine compliance with technical standards adopted by the FCC at any time during the term of this Franchise; and (3) (B) All other tests as otherwise specified in this Franchise. At a minimum, Grantee's tests shall include: (1) Cumulative leakage index testing of any new construction; (2) Semi-annual compliance and proof of performance tests in conformance with generally accepted industry guidelines; (3) Tests in response to Subscriber complaints; (4) Periodic monitoring tests, at intervals not to exceed six (6) months, of Subscriber (field) test points, the Headend, and the condition of standby power supplies; and (5) Cumulative leakage index tests, at least annually, designed to ensure that one hundred percent (100%) of Grantee's Cable System has been ground or air tested for signal leakage in accordance with FCC standards. 44 (C) Grantee shall maintain written records of all results of its Cable System tests, performed by or for Grantee. Copies of such test results will be provided to the County upon reasonable request. (D) If the FCC no longer requires proof of performance tests for Grantee's Cable System during the term of this Franchise, Grantee agrees that it shall continue to conduct proof of performance tests on the Cable System in accordance with the standards that were in place on the Effective Date, or any generally applicable standards later adopted, at least once a year, and provide written results of such tests to the County upon request. (E) The FCC semi-annual testing is conducted in January/February and July/August of each year. If the County contacts Grantee prior to the next test period (i.e., before December 15 and June 15 respectively of each year), Grantee shall provide County with no less than seven (7) days prior written notice of the actual date(s) for FCC compliance testing. If County notifies Grantee by the December 15th and June 15th dates that it wishes to have a representative present during the next test(s), Grantee shall cooperate in scheduling its testing so that the representative can be present. Notwithstanding the above, all technical performance tests may be witnessed by representatives of the County. (F) Grantee shall be required to promptly take such corrective measures as are necessary to correct any performance deficiencies fully and to prevent their recurrence as far as possible. Grantee's failure to correct deficiencies identified through this testing process shall be a material violation of this Franchise. Sites shall be re-tested following correction. 11.6 Additional Tests Where there exists other evidence which in the judgment of the County casts doubt upon the reliability or technical quality of Cable Service, the County shall have the right and authority to require Grantee to test, analyze and report on the performance of the Cable System. Grantee shall fully cooperate with the County in performing such testing and shall prepare the results and a report, if requested, within thirty (30) days after testing. Such report shall include the following information: (A) the nature of the complaint or problem which precipitated the special tests; (B) the Cable System component tested; (C) the equipment used and procedures employed in testing; (D) the method, if any, in which such complaint or problem was resolved; and (E) any other information pertinent to said tests and analysis which may be required. 45 SECTION 12. SERVICE AVAILABILITY, INTERCONNECTION AND SERVICE TO SCHOOLS AND PUBLIC BUILDINGS 12.1 Service Availability (A) In General. Except as otherwise provided in herein, Grantee shall provide Cable Service within seven (7) days of a request by any Person within the County. For purposes of this Section, a request shall be deemed made on the date of signing a service agreement, receipt of funds by Grantee, receipt of a written request by Grantee or receipt by Grantee of a verified verbal request. Except as otherwise provided herein, Grantee shall provide such service: (1) With no line extension charge except as specifically authorized elsewhere in this Franchise Agreement. (2) At a non-discriminatory installation charge for a standard installation, consisting of a 125 foot drop connecting to an inside wall for Residential Subscribers, with additional charges for non-standard installations computed according to a non-discriminatory methodology for such installations, adopted by Grantee and provided in writing to the County; (3) At non-discriminatory monthly rates for Residential Subscribers. (B) Service to Multiple Dwelling Units. Consistent with this Section 12.1, the Grantee shall offer the individual units of a Multiple Dwelling Unit all Cable Services offered to other Dwelling Units in the County and shall individually wire units upon request of the property owner or renter who has been given written authorization by the owner; provided, however, that any such offering is conditioned upon the Grantee having legal access to said unit in the form of an access and wiring agreement that is mutually satisfactory to the Grantee and the property owner. The County acknowledges that the Grantee cannot control the dissemination of particular Cable Services beyond the point of demarcation at a Multiple Dwelling Unit. (C) Subscriber Charges for Extensions of Service. Grantee agrees to extend its Cable System to all persons living in areas with a residential density of thirty (30) residences per mile of Cable System plant and if the area is within 1,320 cable-bearing strand feet of Grantee’s existing distribution plant. If the residential density is less than thirty (30) residences per 5,280 cable-bearing strand feet of trunk or distribution cable, service may be made available on the basis of a capital contribution in aid of construction, including cost of material, labor and easements. For the purpose of determining the amount of capital contribution in aid of construction to be borne by the Grantee and Subscribers in the area in which service may be expanded, the Grantee will contribute an amount equal to the construction and other costs per mile, multiplied by a fraction whose numerator equals the actual number of residences per 5,280 cable-bearing strand feet of its trunk or distribution cable and whose denominator equals thirty (30). Subscribers who request service hereunder will bear the remainder of the construction and other costs on a pro rata basis. The Grantee may require that the payment of the capital contribution in aid of construction borne by such potential Subscribers be paid in advance. 46 12.2 Connection of Public Facilities (A) Grantee shall, at no cost to the County, provide one outlet of Basic Service and Digital Starter Service to all County owned and occupied buildings, schools and public libraries located in areas where Grantee provides Cable Service, so long as these facilities are already served or the interconnection point on these facilities is located within 150 feet from the distribution point on the Cable System, from which cable service can be provided to these facilities. For purposes of this subsection, “school” means all State-accredited K-12 public and private schools. Such obligation to provide free Cable Service shall not extend to areas of County buildings where the Grantee would normally enter into a commercial contract to provide such Cable Service (e.g., golf courses, airport restaurants and concourses, and recreation center work out facilities). Outlets of Basic and Digital Starter Service provided in accordance with this subsection may be used to distribute Cable Services throughout such buildings, provided such distribution can be accomplished without causing Cable System disruption and general technical standards are maintained. Such Cable Service shall not be located in public waiting areas or used to entertain the public nor shall they be used in a way that might violate copyright laws. The outlets may only be used for lawful purposes. The Cable Service provided shall not be distributed beyond the originally installed outlets without authorization from Grantee, which shall not be unreasonably withheld. Grantee is not required to provide free reception equipment for any complimentary account provided pursuant to this subsection. Grantee does not waive any rights under applicable law regarding complimentary service. Should Grantee elect to begin offsetting the value of complimentary service against franchise fees, Grantee shall first provide County with ninety (90) days prior written notice. (B) The County acknowledges that the provision of one outlet of Basic Service and Digital Starter Service to all County owned and occupied buildings that are not schools and public libraries may be terminated by Grantee if a competitive cable operator with a franchise granted by the County does not have a comparable franchise obligation. Additionally, Grantee reserves whatever rights it has under Applicable Law to deduct the value of the complementary Cable Service it provides to County owned and occupied buildings from its payment of Franchise Fees. The County likewise reserves all rights it has under Applicable Law to assert the maximum calculation of Gross Revenues permitted under Section 1.29 of this Franchise consistent with Section 1.29(A), but without regard to any further limitations set forth in Section 1.29(B), and the manner in which the value of the complimentary Cable Services is calculated. Subject to Applicable Law, should Grantee elect to offset complimentary Cable Services provided to County owned and occupied buildings against Franchise Fees, Grantee shall first provide the County with ninety (90) days’ prior written notice. To the extent that the parties are engaged in good faith negotiations to determine the amount of an offset, if any, and such negotiations extend past ninety (90) days, no such offset shall be taken until the parties reach agreement or alternatively, until the matter is resolved through other legal means. 47 SECTION 13. FRANCHISE VIOLATIONS 13.1 Procedure for Remedying Franchise Violations (A) If the County reasonably believes that Grantee has failed to perform any obligation under this Franchise or has failed to perform in a timely manner, the County shall notify Grantee in writing, stating with reasonable specificity the nature of the alleged default. Grantee shall have thirty (30) days from the receipt of such notice to: (1) respond to the County, contesting the County's assertion that a default has occurred, and requesting a meeting in accordance with subsection (B), below; (2) cure the default; or, (3) notify the County that Grantee cannot cure the default within the thirty (30) days, because of the nature of the default. In the event the default cannot be cured within thirty (30) days, Grantee shall promptly take all reasonable steps to cure the default and notify the County in writing and in detail as to the exact steps that will be taken and the projected completion date. In such case, the County may set a meeting in accordance with subsection (B) below to determine whether additional time beyond the thirty (30) days specified above is indeed needed, and whether Grantee's proposed completion schedule and steps are reasonable. (B) If Grantee does not cure the alleged default within the cure period stated above, or by the projected completion date under subsection (A)(3), or denies the default and requests a meeting in accordance with (A)(1), or the County orders a meeting in accordance with subsection (A)(3), the County shall set a meeting to investigate said issues or the existence of the alleged default. The County shall notify Grantee of the meeting in writing and such meeting shall take place no less than thirty (30) days after Grantee's receipt of notice of the meeting. At the meeting, Grantee shall be provided an opportunity to be heard and to present evidence in its defense. (C) If, after the meeting, the County determines that a default exists, the County shall order Grantee to correct or remedy the default or breach within fifteen (15) days or within such other reasonable time frame as the County shall determine. In the event Grantee does not cure within such time to the County’s reasonable satisfaction, the County may: (1) Withdraw an amount from the letter of credit as monetary damages; (2) Recommend the revocation of this Franchise pursuant to the procedures in subsection 13.2; or, (3) Recommend any other legal or equitable remedy available under this Franchise or any Applicable Law. 48 (D) The determination as to whether a violation of this Franchise has occurred shall be within the discretion of the County, provided that any such final determination may be subject to appeal to a court of competent jurisdiction under Applicable Law. 13.2 Revocation (A) In addition to revocation in accordance with other provisions of this Franchise, the County may revoke this Franchise and rescind all rights and privileges associated with this Franchise in the following circumstances, each of which represents a material breach of this Franchise: (1) If Grantee fails to perform any material obligation under this Franchise or under any other agreement, ordinance or document regarding the County and Grantee; (2) If Grantee willfully fails for more than forty-eight (48) hours to provide continuous and uninterrupted Cable Service; (3) If Grantee attempts to evade any material provision of this Franchise or to practice any fraud or deceit upon the County or Subscribers; or (4) If Grantee becomes insolvent, or if there is an assignment for the benefit of Grantee's creditors; (5) If Grantee makes a material misrepresentation of fact in the application for or negotiation of this Franchise. (B) Following the procedures set forth in subsection 13.1 and prior to forfeiture or termination of the Franchise, the County shall give written notice to the Grantee of its intent to revoke the Franchise and set a date for a revocation proceeding. The notice shall set forth the exact nature of the noncompliance. (C) Any proceeding under the paragraph above shall be conducted by the County Council and open to the public. Grantee shall be afforded at least forty-five (45) days prior written notice of such proceeding. (1) At such proceeding, Grantee shall be provided a fair opportunity for full participation, including the right to be represented by legal counsel, to introduce evidence, and to question witnesses. A complete verbatim record and transcript shall be made of such proceeding and the cost shall be shared equally between the parties. The County Council shall hear any Persons interested in the revocation, and shall allow Grantee, in particular, an opportunity to state its position on the matter. (2) Within ninety (90) days after the hearing, the Council shall determine whether to revoke the Franchise and declare that the Franchise is revoked; or if the breach at issue is capable of being cured by Grantee, direct Grantee to take appropriate remedial action within the time and in the manner and on the terms and conditions that 49 the Council determines are reasonable under the circumstances. If the County determines that the Franchise is to be revoked, the County shall set forth the reasons for such a decision and shall transmit a copy of the decision to the Grantee. Grantee shall be bound by the County’s decision to revoke the Franchise unless it appeals the decision to a court of competent jurisdiction within fifteen (15) days of the date of the decision. (3) Grantee shall be entitled to such relief as the Court may deem appropriate. (4) The Board may at its sole discretion take any lawful action which it deems appropriate to enforce the County's rights under the Franchise in lieu of revocation of the Franchise. 13.3 Procedures in the Event of Termination or Revocation (A) If this Franchise expires without renewal after completion of all processes available under this Franchise and federal law or is otherwise lawfully terminated or revoked, the County may, subject to Applicable Law: (1) Allow Grantee to maintain and operate its Cable System on a month-tomonth basis or short-term extension of this Franchise for not less than six (6) months, unless a sale of the Cable System can be closed sooner or Grantee demonstrates to the County's satisfaction that it needs additional time to complete the sale; or (2) Purchase Grantee's Cable System in accordance with the procedures set forth in subsection 13.4, below. (B) In the event that a sale has not been completed in accordance with subsections (A)(1) and/or (A)(2) above, the County may order the removal of the above-ground Cable System facilities and such underground facilities from the County at Grantee's sole expense within a reasonable period of time as determined by the County. In removing its plant, structures and equipment, Grantee shall refill, at is own expense, any excavation that is made by it and shall leave all Right-of-Way, public places and private property in as good condition as that prevailing prior to Grantee's removal of its equipment without affecting the electrical or telephone cable wires or attachments. The indemnification and insurance provisions shall remain in full force and effect during the period of removal, and Grantee shall not be entitled to, and agrees not to request, compensation of any sort therefore. (C) If Grantee fails to complete any removal required by subsection 13.3 (B) to the County’s satisfaction, after written notice to Grantee, the County may cause the work to be done and Grantee shall reimburse the County for the costs incurred within thirty (30) days after receipt of an itemized list of the costs. (D) Franchise. The County may seek legal and equitable relief to enforce the provisions of this 50 13.4 Purchase of Cable System (A) If at any time this Franchise is revoked, terminated, or not renewed upon expiration in accordance with the provisions of federal law, the County shall have the option to purchase the Cable System. (B) The County may, at any time thereafter, offer in writing to purchase Grantee's Cable System. Grantee shall have thirty (30) days from receipt of a written offer from the County within which to accept or reject the offer. (C) In any case where the County elects to purchase the Cable System, the purchase shall be closed within one hundred twenty (120) days of the date of the County's audit of a current profit and loss statement of Grantee. The County shall pay for the Cable System in cash or certified funds, and Grantee shall deliver appropriate bills of sale and other instruments of conveyance. (D) For the purposes of this subsection, the price for the Cable System shall be determined as follows: (1) In the case of the expiration of the Franchise without renewal, at fair market value determined on the basis of Grantee's Cable System valued as a going concern, but with no value allocated to the Franchise itself. In order to obtain the fair market value, this valuation shall be reduced by the amount of any lien, encumbrance, or other obligation of Grantee which the County would assume. (2) System. 13.5 In the case of revocation for cause, the equitable price of Grantee's Cable Receivership and Foreclosure (A) At the option of the County, subject to Applicable Law, this Franchise may be revoked one hundred twenty (120) days after the appointment of a receiver or trustee to take over and conduct the business of Grantee whether in a receivership, reorganization, bankruptcy or other action or proceeding, unless: (1) The receivership or trusteeship is vacated within one hundred twenty (120) days of appointment; or (2) The receivers or trustees have, within one hundred twenty (120) days after their election or appointment, fully complied with all the terms and provisions of this Franchise, and have remedied all defaults under the Franchise. Additionally, the receivers or trustees shall have executed an agreement duly approved by the court having jurisdiction, by which the receivers or trustees assume and agree to be bound by each and every term, provision and limitation of this Franchise. 51 (B) If there is a foreclosure or other involuntary sale of the whole or any part of the plant, property and equipment of Grantee, the County may serve notice of revocation on Grantee and to the purchaser at the sale, and the rights and privileges of Grantee under this Franchise shall be revoked thirty (30) days after service of such notice, unless: (1) The County has approved the transfer of the Franchise, in accordance with the procedures set forth in this Franchise and as provided by law; and (2) The purchaser has covenanted and agreed with the County to assume and be bound by all of the terms and conditions of this Franchise. 13.6 No Monetary Recourse Against the County Grantee shall not have any monetary recourse against the County or its officers, officials, boards, commissions, agents or employees for any loss, costs, expenses or damages arising out of any provision or requirement of this Franchise or the enforcement thereof, in accordance with the provisions of applicable federal, State and local law. The rights of the County under this Franchise are in addition to, and shall not be read to limit, any immunities the County may enjoy under federal, State or local law. 13.7 Alternative Remedies No provision of this Franchise shall be deemed to bar the right of the County to seek or obtain judicial relief from a violation of any provision of the Franchise or any rule, regulation, requirement or directive promulgated thereunder. Neither the existence of other remedies identified in this Franchise nor the exercise thereof shall be deemed to bar or otherwise limit the right of the County to recover monetary damages for such violations by Grantee, or to seek and obtain judicial enforcement of Grantee's obligations by means of specific performance, injunctive relief or mandate, or any other remedy at law or in equity. 13.8 Assessment of Monetary Damages (A) The County may assess against Grantee monetary damages (i) up to five hundred dollars ($500.00) per day for general construction delays, violations of PEG obligations or payment obligations, (ii) up to two hundred fifty dollars ($250.00) per day for any other material breaches, or (iii) up to one hundred dollars ($100.00) per day for defaults, and withdraw the assessment from the letter of credit or collect the assessment as specified in this Franchise. Damages pursuant to this Section shall accrue for a period not to exceed one hundred twenty (120) days per violation proceeding. To assess any amount from the letter of credit, the County shall follow the procedures for withdrawals from the letter of credit set forth in the letter of credit and in this Franchise. Such damages shall accrue beginning thirty (30) days following Grantee’s receipt of the notice required by subsection 13.1(A), or such later date if approved by the County in its sole discretion, but may not be assessed until after the procedures in subsection 13.1 have been completed. 52 (B) The assessment does not constitute a waiver by the County of any other right or remedy it may have under the Franchise or Applicable Law, including its right to recover from Grantee any additional damages, losses, costs and expenses that are incurred by the County by reason of the breach of this Franchise. 13.9 Effect of Abandonment If the Grantee abandons its Cable System during the Franchise term, or fails to operate its Cable System in accordance with its duty to provide continuous service, the County, at its option, may operate the Cable System; designate another entity to operate the Cable System temporarily until the Grantee restores service under conditions acceptable to the County, or until the Franchise is revoked and a new franchisee is selected by the County; or obtain an injunction requiring the Grantee to continue operations. If the County is required to operate or designate another entity to operate the Cable System, the Grantee shall reimburse the County or its designee for all reasonable costs, expenses and damages incurred. 13.9 What Constitutes Abandonment The County shall be entitled to exercise its options in subsection 13.9 if: (A) The Grantee fails to provide Cable Service in accordance with this Franchise over a substantial portion of the Franchise Area for four (4) consecutive days, unless the County authorizes a longer interruption of service; or (B) The Grantee, for any period, willfully and without cause refuses to provide Cable Service in accordance with this Franchise. SECTION 14. FRANCHISE RENEWAL AND TRANSFER 14.1 Renewal (A) The County and Grantee agree that any proceedings undertaken by the County that relate to the renewal of the Franchise shall be governed by and comply with the provisions of Section 626 of the Cable Act, unless the procedures and substantive protections set forth therein shall be deemed to be preempted and superseded by the provisions of any subsequent provision of federal or State law. (B) In addition to the procedures set forth in said Section 626(a), the County agrees to notify Grantee of the completion of its assessments regarding the identification of future cablerelated community needs and interests, as well as the past performance of Grantee under the then current Franchise term. Notwithstanding anything to the contrary set forth herein, Grantee and the County agree that at any time during the term of the then current Franchise, while affording the public adequate notice and opportunity for comment, the County and Grantee may agree to undertake and finalize negotiations regarding renewal of the then current Franchise and the County may grant a renewal thereof. Grantee and the County consider the terms set forth in this subsection to be consistent with the express provisions of Section 626 of the Cable Act. 53 (C) Should the Franchise expire without a mutually agreed upon renewed Franchise Agreement and Grantee and the County are engaged in an informal or formal renewal process, the Franchise shall continue on a month-to-month basis, with the same terms and conditions as provided in the Franchise, and the Grantee and the County shall continue to comply with all obligations and duties under the Franchise until final County action is taken to renew or terminate the Franchise pursuant to this Franchise and Applicable Law. 14.2 Transfer of Ownership or Control (A) The Cable System and this Franchise shall not be sold, assigned, transferred, leased or disposed of, either in whole or in part, either by involuntary sale or by voluntary sale, merger or consolidation; nor shall title thereto, either legal or equitable, or any right, interest or property therein pass to or vest in any Person or entity without the prior written consent of the County, which consent shall be by the County Council, acting by ordinance or resolution. (B) The Grantee shall promptly notify the County of any actual or proposed change in, or transfer of, or acquisition by any other party of control of the Grantee. The word "control" as used herein is not limited to majority stockholders but includes actual working control in whatever manner exercised. Every change, transfer or acquisition of control of the Grantee shall make this Franchise subject to cancellation unless and until the County shall have consented in writing thereto. (C) The parties to the sale or transfer shall make a written request to the County for its approval of a sale or transfer and furnish all information required by law and the County (D) In seeking the County's consent to any change in ownership or control, the proposed transferee shall indicate whether it: (1) Has ever been convicted or held liable for acts involving deceit including any violation of federal, State or local law or regulations, or is currently under an indictment, investigation or complaint charging such acts; (2) Has ever had a judgment in an action for fraud, deceit, or misrepresentation entered against the proposed transferee by any court of competent jurisdiction; (3) Has pending any material legal claim, lawsuit, or administrative proceeding arising out of or involving a cable system or a broadband system; (4) Is financially solvent, by submitting financial data including financial statements that are audited by a certified public accountant who may also be an officer of the transferee, along with any other data that the County may reasonably require; and (5) Has the financial, legal and technical capability to enable it to maintain and operate the Cable System for the remaining term of the Franchise. 54 (E) The County shall act by ordinance on the request within one hundred twenty (120) days of the request, provided it has received all information required by this Franchise and/or by Applicable Law. The County and the Grantee may by mutual agreement, at any time, extend the 120 day period. Subject to the foregoing, if the County fails to render a final decision on the request within one hundred twenty (120) days, such request shall be deemed granted unless the requesting party and the County agree to an extension of time. (F) Within thirty (30) days of any transfer or sale, if approved or deemed granted by the County, Grantee shall file with the County a copy of the deed, agreement, lease or other written instrument evidencing such sale or transfer of ownership or control, certified and sworn to as correct by Grantee and the transferee, and the transferee shall file its written acceptance agreeing to be bound by all of the provisions of this Franchise, subject to Applicable Law. In the event of a change in control, in which the Grantee is not replaced by another entity, the Grantee will continue to be bound by all of the provisions of the Franchise, subject to Applicable Law, and will not be required to file an additional written acceptance. (G) In reviewing a request for sale or transfer, the County may inquire into the legal, technical and financial qualifications of the prospective controlling party or transferee, and Grantee shall assist the County in so inquiring. The County may condition said sale or transfer upon such terms and conditions as it deems reasonably appropriate, in accordance with Applicable Law. (H) Notwithstanding anything to the contrary in this subsection, the prior approval of the County shall not be required for any sale, assignment or transfer of the Franchise or Cable System to an entity controlling, controlled by or under the same common control as Grantee, provided that the proposed assignee or transferee must show financial responsibility as may be determined necessary by the County and must agree in writing to comply with all of the provisions of the Franchise. Further, Grantee may pledge the assets of the Cable System for the purpose of financing without the consent of the County; provided that such pledge of assets shall not impair or mitigate Grantee’s responsibilities and capabilities to meet all of its obligations under the provisions of this Franchise. SECTION 15. SEVERABILITY If any Section, subsection, paragraph, term or provision of this Franchise is determined to be illegal, invalid or unconstitutional by any court or agency of competent jurisdiction, such determination shall have no effect on the validity of any other Section, subsection, paragraph, term or provision of this Franchise, all of which will remain in full force and effect for the term of the Franchise. 55 SECTION 16. MISCELLANEOUS PROVISIONS 16.1 Preferential or Discriminatory Practices Prohibited NO DISCRIMINATION IN EMPLOYMENT. In connection with the performance of work under this Franchise, the Grantee agrees not to refuse to hire, discharge, promote or demote, or discriminate in matters of compensation against any Person otherwise qualified, solely because of race, color, religion, national origin, gender, age, military status, sexual orientation, marital status, or physical or mental disability; and the Grantee further agrees to insert the foregoing provision in all subcontracts hereunder. Throughout the term of this Franchise, Grantee shall fully comply with all equal employment or non-discrimination provisions and requirements of federal, State and local laws, and in particular, FCC rules and regulations relating thereto. 16.2 Reservation of Rights Notwithstanding any other provision of this Franchise, Grantee reserves the right to challenge provisions of any ordinance, rule, regulation, or other enactment of the County that conflicts with its contractual rights under this Franchise, either now or in the future. 16.3 Notices Throughout the term of the Franchise, each party shall maintain and file with the other a local address for the service of notices by mail. All notices shall be sent overnight delivery postage prepaid to such respective address and such notices shall be effective upon the date of mailing. These addresses may be changed by the County or the Grantee by written notice at any time. At the Effective Date of this Franchise: Grantee's address shall be: Comcast of Colorado/Florida/Michigan/New Mexico/Pennsylvania/Washington, LLC 8000 E. Iliff Ave. Denver, CO 80231 Attn: Government Affairs Dept. The County's address shall be: Pitkin County 530 East Main Street Aspen, CO 81611 Attn: County Manager 16.4 Descriptive Headings The headings and titles of the Sections and subsections of this Franchise are for reference purposes only, and shall not affect the meaning or interpretation of the text herein. 56 16.5 Publication Costs to be Borne by Grantee Grantee shall reimburse the County for all costs incurred in publishing this Franchise, if such publication is required. 16.6 Binding Effect This Franchise shall be binding upon the parties hereto, their permitted successors and assigns. 16.7 No Joint Venture Nothing herein shall be deemed to create a joint venture or principal-agent relationship between the parties, and neither party is authorized to, nor shall either party act toward third Persons or the public in any manner which would indicate any such relationship with the other. 16.8 Waiver The failure of the County at any time to require performance by the Grantee of any provision hereof shall in no way affect the right of the County hereafter to enforce the same. Nor shall the waiver by the County of any breach of any provision hereof be taken or held to be a waiver of any succeeding breach of such provision, or as a waiver of the provision itself or any other provision. 16.9 Reasonableness of Consent or Approval Whenever under this Franchise “reasonableness” is the standard for the granting or denial of the consent or approval of either party hereto, such party shall be entitled to consider public and governmental policy, moral and ethical standards as well as business and economic considerations. 16.10 Entire Agreement This Franchise and all Exhibits represent the entire understanding and agreement between the parties hereto with respect to the subject matter hereof and supersede all prior oral negotiations between the parties. IN WITNESS WHEREOF, this Franchise is signed in the name of Pitkin County, Colorado this day of , 2018. ATTEST: PITKIN COUNTY, COLORADO: County Clerk Chair, Board of County Commissioners 57 APPROVED AS TO FORM: RECOMMENDED AND APPROVED: County Attorney County Manager Accepted and approved this _____ day of ____________, 2018. COMCAST OF COLORADO / FLORIDA / MICHIGAN / NEW MEXICO / PENNSYLVANIA / WASHINGTON, LLC __________________________________ By: _______________________________ Its: _______________________________ 58 EXHIBIT A: CUSTOMER SERVICE STANDARDS EXHIBIT B Report Form Comcast Quarterly Executive Summary - Escalated Complaints Section 7.6 (B) of our Franchise Agreement Quarter Ending ___________, Year PITKIN COUNTY Type of Complaint Number of Calls Accessibility Billing, Credit and Refunds Courtesy Drop Bury Installation Notices/Easement Issues (Non-Rebuild) Pedestal Problem Resolution Programming Property Damage (Non-Rebuild) Rates Rebuild/Upgrade Damage Rebuild/Upgrade Notices/Easement Issues Reception/Signal Quality Safety Service and Install Appointments Service Interruptions Serviceability 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 TOTAL 0 Compliments AGENDA ITEM SUMMARY REGULAR MEETING DATE: February 14, 2018 AGENDA ITEM TITLE: Ordinance Adopting Pitkin County Code Title 6, Chapter 6.29 “Pitkin County Graywater Treatment System Regulations” STAFF RESPONSIBLE: Kurt Dahl, Environmental Health ISSUE STATEMENT: Discussion of the proposed graywater regulations. BACKGROUND: The BOCC approved first reading of the ordinance adopting the regulations, on January 24th and it is before you at this time for second reading and public hearing. These regulations are based on the minimum requirements set by the Colorado Department of Public Health and Environment’s 5 CCR 1002-86, Regulation #86. Environmental Health (EH) fees will also be amended to include an hourly fee for graywater permits. Graywater is wastewater from hand sinks, showers, and laundry machines that is captured for reuse on the property. Graywater is not wastewater from kitchen sinks, toilets, or utility sinks and the wastewater from these fixtures must be treated through and Onsite Wastewater Treatment System (OWTS) or a wastewater (sewer) utility. Graywater is also not reclaimed water. Reclaimed water is wastewater from all sources that is collected and treated to a minimum standard for reuse. The treatment standards are based on how the reclaimed water is used. Reclaimed water can be used at the treatment site or on other separate properties. These proposed regulations would allow for the capture and storage of graywater to be used for outdoor irrigation and/or indoor toilet flushing. Both options would be available for residential properties (up to 400 gpd) and commercial properties (up to 2000 gpd). The graywater permit process will be the same as the OWTS permit process and will have the same categories as the OWTS: new construction, repair, use, operating (renewable), and amendment. The proposed fee for a graywater permit will be the $164/hr charge. This change will allow for some flexibility when the applicant has also applied for an OWTS permit since there will be informational overlap between the permits. A use permit will be required for a graywater system when the property is sold (tile transfer) or the house remodeled. An operating permit will be required for all graywater systems that require periodic maintenance. Operating permits will expire every two years and must be renewed as long as the graywater system is continuing to be used. The applicant will be required to demonstrate at application the property has adequate water rights to allow for the proposed reuse of graywater. In some cases, properties may not have the water rights to allow for outdoor irrigation. However, EH met with staff from the Glenwood Springs office of the Colorado Division of Water Resources and they indicated that indoor toilet flushing would not be considered a “consumptive” use of graywater and this use could be permitted at all properties. The DWR staff also indicated concerns about permitting systems where their water has been augmented. The application for a graywater system will include a question on augmentation and if the applicant indicates this, EH will work with the DWR to determine if the use can be allowed. LINK TO STRATEGIC PLAN: Flourishing Natural and Built Environment KEY DISCUSSION ITEMS: Graywater treatment systems and the proposed regulation. BUDGETARY IMPACT: Anticipated to be minimal. Permit fees to offset the program costs are proposed in a separate resolution. RECOMMENDED BOCC ACTION: Open the public hearing and approve the Ordinance Adopting Pitkin County Code Title 6, Chapter 6.29 “Pitkin County Graywater Treatment System Regulations” on second reading. ATTACHMENTS: Attachment A – Ordinance with proposed regulations Attachment A AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, ADOPTING PITKIN COUNTY CODE TITLE 6, CHAPTER 6.29 “PITKIN COUNTY GRAYWATER TREATMENT SYSTEM REGULATIONS” ORDINANCE NO. ___________-2018 RECITALS: 1. 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 (“HRC”), the BOCC is authorized to take official action by Ordinance for certain matters where action is prescribed pursuant to the Colorado Revised Statues as amended. 3. Pursuant to 25-8-205(g)(II) C.R.S., the Board of County Commissioners of Pitkin County is authorized to adopt graywater treatment system regulations that meet the minimum standards described in 5 CCR 1002-86, Regulation # 86. 4. WHEREAS, the Board of County Commissioners desires to adopt new rules and regulations governing the design, construction, installation, repair, modification, maintenance and use of graywater treatment systems to preserve and protect the environment and to protect the public health, safety and welfare. 5. 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 Pitkin County Code Title 6, Chapter 6.29 “Pitkin County Graywater Treatment System Regulations” 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. Page 1 of 43 Attachment A INTRODUCED AND FIRST READ ON THE _______ DAY OF_______________, 2018 AND SET FOR SECOND READING AND PUBLIC HEARING ON THE ______DAY OF _______________ 2018. NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE RESOLUTION PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE _______ DAY OF _____________, 2018. NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE RESOLUTION POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com ) ON THE ______DAY OF _______________ 2018. ADOPTED AFTER FINAL READING AND PUBLIC HEARING ON THE ______ DAY OF _______________ 2018. PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION, IN THE ASPEN TIMES WEEKLY ON THE _____ DAY OF ____________, 2018. POSTED BY TITLE AND SHORT SUMMARY ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com ) ON THE ______DAY OF_______________, 2018. ATTEST: BOARD OF COUNTY COMMISSIONERS By _________________________ Jeanette Jones Deputy County Clerk By: _____________________________ Patti Clapper, Chair Date: ______________ APPROVED AS TO FORM: MANAGER APPROVAL ___________________________ John Ely, County Attorney _________________________________ Jon Peacock, County Manager Page 2 of 43 Attachment A 6.29 Pitkin County Grawater Treatment System Regulations Page 3 of 43 Attachment A 6.29.010 Graywater Treatment System Regulations Authority This regulation is promulgated pursuant to the Colorado Water Quality Control Act (CWQCA) sections 258-101 through 25-8-703, C.R.S. In particular, it is promulgated under section 25-8-205(1)(g), C.R.S, and 5 CCR 1002-86, Regulation # 86. 6.29.020 A. Purpose and Scope Purpose Graywater is expected to carry human pathogens with various risk levels and pathways that have the potential to be dangerous to public health. Therefore, the purpose of this regulation, as authorized by section 25-8-205(1)(g), is to describe requirements, prohibitions, and standards for the use of graywater for nondrinking water purposes, to encourage the use of graywater, and to protect public health and water quality. B. Scope This regulation establishes the allowed users and allowed uses of graywater within Pitkin County; establishes the minimum standards for the location, design, construction, operation, installation, modification of graywater treatment works. 6.29.030 Severability The provisions of this regulation are severable, and if any provisions or the application of the provisions to any circumstances is held invalid, the application of such provision to other circumstances, and the remainder of this regulation shall not be affected thereby. 6.29.040 A. Applicability All graywater uses and graywater treatment systems must comply with the minimum requirements of this regulation and the Colorado Department of Public Health and Environment, Water Quality Control Commission’s Graywater Control Regulation #86. 1. Graywater treatment systems may only be installed and operated within the jurisdiction of Pitkin County 2. Graywater treatment systems that reuse graywater for outdoor subsurface irrigation which were approved by Pitkin County prior to May 15, 2013 and pursuant to 5 CCR 1002-43, section 43.4(J) or pursuant to 5 CCR 1003-6, section IV.J, and which are in compliance with all requirements imposed by Pitkin County, are deemed to be in compliance with the requirements of this regulation unless or until any modification to the graywater treatment works is made. 3. A graywater treatment system installed under this regulation, which is later revoked Page 4 of 43 Attachment A or rescinded must within 365 days: 4. Graywater Treatment System Regulations a. Be physically removed or permanently disconnected; or b. Be regulated under another jurisdiction’s local graywater control program which assumes authority over the existing graywater treatment systems. The existing graywater treatment system will need to comply with the new local graywater control program, including any required graywater treatment system modifications. In the event that a property with a compliant graywater treatment system is annexed or de- annexed into a jurisdiction separate from Pitkin County, with differing graywater requirements, the property owner must within 365 days: a. Ensure the graywater treatment system is physically removed or permanently disconnected; or b. Ensure the graywater treatment system is incorporated into another local jurisdiction’s graywater control program. This includes conforming to the minimum requirements of the new local graywater control program and may include improving or modifying the graywater treatment system. B. Graywater use must meet the requirements adopted pursuant to these regulations. Unauthorized graywater use and discharges are prohibited. C. This regulation does not apply to: discharges pursuant to a Colorado Discharge Permit System (CDPS) permit, wastewater that has been treated and released to state waters prior to subsequent use, wastewater that has been treated and used at a domestic wastewater treatment works for landscape irrigation or process uses, on-site wastewater treatment works authorized under Colorado Department of Public Health and Environment’s Regulation #43, reclaimed wastewater authorized under Regulation #84, water used in an industrial process that is internally recycled, and rainwater harvesting. 6.29.050 Enforcement and Division Oversight A. Pitkin County has exclusive enforcement authority regarding compliance with the ordinance. B. The Colorado Water Quality Control Division oversees state-wide implementation of this regulation. 6.29.060 Definitions (1) “Agronomic rate” means the rate of application of nutrients to plants that is necessary to satisfy the nutritional requirements of the plants. (2) “Agricultural irrigation” means irrigation of crops produced for direct human consumption, crops where lactating dairy animals forage, and trees that produce nuts or fruit intended for human Page 5 of 43 Attachment A Graywater Treatment System Regulations consumption. This definition includes household gardens and fruit trees. (3) “Closed sewerage system” means either a permitted domestic wastewater treatment works, which includes a permitted and properly functioning OWTS with a design capacity more than 2,000 gpd, or a properly functioning and approved or permitted OWTS with a design capacity of 2,000 gpd or less. (4) “Commission” means the Water Quality Control Commission created by section 25-8-201, C.R.S. (5) “Component” means a subpart of a graywater treatment works which may include multiple devices. (6) “Cross-Connection” means any connection that could allow any water, fluid, or gas such that the water quality could present an unacceptable health and/or safety risk to the public, to flow from any pipe, plumbing fixture, or a customer’s water system into a public water system’s distribution system or any other part of the public water system through backflow. (7) “Department” means Pitkin County Environmental Health Department (8) “Design” means the process of selecting and documenting in writing the size, calculations, site specific data, location, equipment specification and configuration of treatment components that match site characteristics and facility use. (9) “Design flow” means the estimated volume of graywater per unit of time for which a component or graywater treatment works is designed. (10) “Dispersed subsurface irrigation” means a subsurface irrigation system including piping and emitters installed throughout an irrigation area. (11) “Division” means the Water Quality Control Division of the Colorado Department of Public Health and Environment. (12) “Facility” means any building, structure, or installation, or any combination thereof that uses graywater subject to a local graywater control program, is located on one or more contiguous or adjacent properties, and is owned or operated by the same person or legal entity. Facility is synonymous with the term operation. (13) “Floodplain (100-year)” means an area adjacent to a river or other watercourse which is subject to flooding as the result of the occurrence of a one hundred (100) year flood, and is so adverse to past, current or foreseeable construction or land use as to constitute a significant hazard to public or environmental health and safety or to property or is designated by the Federal Emergency Management Agency (FEMA) or National Flood Insurance Program (NFIP). In the absence of FEMA/NFIP maps, a professional engineer shall certify the floodplain elevations. (14) “Floodway” means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot or as designated by the Federal Emergency Management Agency or National Flood Insurance Program. In the absence of FEMA/NFIP maps, a professional engineer shall certify the floodway elevation and location. Page 6 of 43 Attachment A Graywater Treatment System Regulations (15) “Graywater" means that portion of wastewater that, before being treated or combined with other wastewater, is collected from fixtures within residential, commercial, or industrial buildings or institutional facilities for the purpose of being put to beneficial uses. Sources of graywater are limited to discharges from bathroom and laundry room sinks, bathtubs, showers, and laundry machines. Graywater does not include the wastewater from toilets, urinals, kitchen sinks, dishwashers, or nonlaundry utility sinks. (16) "Graywater treatment works" means an arrangement of devices and structures used to: (a) collect graywater from within a building or a facility; and (b) treat, neutralize, or stabilize graywater within the same building or facility to the level necessary for its authorized uses; also known as Graywater treatment system (17) “Indirect connection” means a waste pipe from a graywater treatment works that does not connect directly with the closed sewerage system, but that discharges into the closed sewerage system though an air break or air gap into a trap, fixture, receptor, or interceptor. (18) “Legally responsible party” (1) For a residential property, the legally responsible party is the property owner. (2) For a corporation, the legally responsible party is a responsible corporate officer, either: (i) a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy- or decision-making functions for the corporation, or (ii) the manager of operating facilities, provided, the manager is authorized to make management decisions which govern the operation of the regulated facility including having the explicit or implicit duty of making major capital investment recommendations, and initiating and directing other comprehensive measures to assure long term environmental compliance with environmental laws and regulations; the manager can ensure that the necessary systems are established or actions taken to gather complete and accurate information for approval application requirements; and where authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures. (3) For a partnership or sole proprietorship, the legally responsible party is either a general partner or the proprietor, respectively. (4) For a municipality, State, Federal, or other public agency, the legally responsible party is a principal executive officer or ranking elected official, either (i) the chief executive officer of the agency, or (ii) a senior executive officer having responsibility for the overall operations of a principal geographic unit of the agency (e.g., Regional Administrators of EPA). (19) “Limited local graywater control program” is a local graywater control program limited to existing graywater treatment works and which does not accept new graywater treatment works. (20) “Local agency” means any local city, city or county, county agency including, but not limited to, a department, local public health agency, or district which is delegated the authority to administer all or a portion of the responsibilities of the local graywater control program. (21) “Local graywater control program” is a local ordinance or resolution and, if applicable, rule, including implementation practices, authorized by a city, city and county or county which is in compliance with the minimum requirements of this regulation. (22) “Local public health agency” means Pitkin County Environmental Health. (23) “Modification” means the alteration or replacement of any component of a graywater treatment works that can affect the quality of the finished water, the rated capacity of a graywater treatment Page 7 of 43 Attachment A Graywater Treatment System Regulations works, the graywater use, alters the treatment process of a graywater treatment works, or compliance with this regulation and the local graywater control program. This definition does not include normal operations and maintenance of a graywater treatment works. (24) “Mulch” means organic material including but not limited to leaves, prunings, straw, pulled weeds, and wood chips. (25) “Mulch basin” means a type of irrigation or treatment field filled with mulch or other approved permeable material of sufficient depth, length, and width to prevent ponding or runoff. A mulch basin may include a basin around a tree, a trough along a row of plants, or other shapes necessary for irrigation. (26) “On-site wastewater treatment system” or "OWTS" means an absorption system of any size or flow or a system or facility for treating, neutralizing, stabilizing, or dispersing sewage generated in the vicinity, which system is not a part of or connected to a sewage treatment works. Refer to Pitkin County Onsite Wastewater Treatment (OWTS) Regulations 6.28 fir questions pertaining to OWTSs. (27) “Percolation test” means a subsurface soil test at the depth of a proposed irrigation area to determine the water absorption capability of the soil, the results of which are normally expressed as the rate at which one inch of water is absorbed. The rate is expressed in minutes per inch. (28) “Potable water system” means a system for the provision of water to the public for human consumption through pipes or other constructed conveyances, where such system has less than fifteen service connections or regularly serves less than an average of at least 25 individuals daily at least 60 days per year. (29) “Professional engineer” means an engineer licensed in accordance with section 12-25-1, C.R.S. (30) “Public nuisance” means the unreasonable, unwarranted and/or unlawful use of property, which causes inconvenience or damage to others, including to an individual or to the general public. (31) “Public water system” means a system for the provision of water to the public for human consumption through pipes or other constructed conveyances, if such system has at least fifteen service connections or regularly serves an average of at least 25 individuals daily at least 60 days per year. A public water system is either a community water system or a non-community water system. Such term does not include any special irrigation district. Such term includes: (32) (a) Any collection, treatment, storage, and distribution facilities under control of the supplier of such system and used primarily in connection with such system. (b) Any collection or pretreatment storage facilities not under such control, which are used primarily in connection with such system. “Single family” means a detached or attached structure, arranged and designed as a single family residential unit intended to be occupied by not more than one family and that has separate water and sewer services connections from other dwelling units. Page 8 of 43 (33) Attachment A Graywater Treatment System Regulations “Site evaluation” means a comprehensive analysis of soil and site conditions for a graywater irrigation area. (34) “Soil horizon” means layers in the soil column differentiated by changes in texture, color, redoximorphic features, bedrock, structure, consistence, and any other characteristic that affects water movement. (35) “Soil profile test pit” means a trench or other excavation used for access to evaluate the soil horizons for properties influencing effluent movement, bedrock, evidence of seasonal high ground water, and other information to be used in locating and designing a graywater irrigation area. (36) “Soil structure” means the naturally occurring combination or arrangement of primary soil particles into secondary units or peds; secondary units are characterized on the basis of shape, size class, and grade (degree of distinctness). (37) “Suitable soil” means unsaturated soil in which the movement of water, air, and growth of roots is sustained to support healthy plant life and conserve moisture. Soil criteria for graywater subsurface irrigation are further defined in section 86.12. (38) “Subsurface irrigation” means a discharge of graywater into soil a minimum of four inches (4”) and no deeper than twelve inches (12”) below the finished grade. (39) “State waters” means any and all surface and subsurface waters which are contained in or flow in or through this state, but does not include waters in sewage systems, waters in treatment works of disposal systems, waters in potable water distribution systems, and all water withdrawn for use until use and treatment have been completed. Table 8-1 Abbreviations and Acronyms ANSI American National Standards Institute BK Blocky C.R.S. Colorado Revised Statutes CDPS Colorado Discharge Permit System FEMA Federal Emergency Management Agency gpd gallons per day GR Granular mg/L milligrams per Liter MPI Minutes Per Inch NFIP National Flood Insurance Program NSF NSF International, formally known as National Sanitation Foundation O&M Operations and Maintenance OWTS On-site Wastewater Treatment System(s) PR Prismatic 6.29.070 A. Administration Local Coordination Nothing in this regulation shall be deemed to limit the authority of Pitkin County, pursuant to Page 9 of 43 Attachment A Graywater Treatment System Regulations section 29-1-203, C.R.S., to enter into intergovernmental agreements with other local jurisdictions, pertaining to the coordinated adoption and operation of local graywater control program. B. Permit Types 1. Graywater Treatment System Construction Permit a. A graywater treatment system construction permit is required for all new construction, as well as the installation, alteration (including expansion as described in 6.29.070.B.1.b), or replacement of a graywater system. A graywater treatment system construction permit is also required for repair of a graywater treatment system, other than minor repairs to system components (e.g., replacement of a broken or crushed pipe). Requirements for repair shall be determined by the Department. b. A permit shall be required for the expanded use of a graywater treatment system. The graywater treatment system must be replaced or modified to handle the increased design flow unless it is determined that the existing system is adequately designed and constructed for the higher design flow rate. Expanded use of an existing graywater treatment system includes the addition of bedrooms or rooms that may be used as bedrooms in the future, or the conversion of rooms into bedrooms, or any other modification that may affect water use. The Department will review plans for alteration or remodeling of buildings to determine if it is necessary to expand the graywater treatment system. In no circumstance may a graywater treatment system existing prior to adoption of this Regulation be expanded in violation of this Regulation, or in violation of Colorado Revised Statue §25-8-205. c. In conjunction with a permit issued for repairs, the Department may authorize use of a malfunctioning graywater treatment system, or an interim vault or vault privy, on an emergency basis (not to exceed the period stated in the permit), provided that the Department determines that there is not an immediate threat to public health or the environment. d. Graywater treatments systems that are for experimental or research purposes are required to obtain a permit for construction, repair, etc. from this department 2. Graywater System Use Permit a. Prior to the sale of a property served by one or more graywater systems (including any graywater treatment system in existence prior to adoption of this Regulation), the owner(s) of the property shall obtain a Graywater Treatment System Use Permit for each system on the property. This requirement shall be waived if: a) each graywater treatment system on the property received final approval for a graywater treatment system construction permit from the Department within the five year period preceding the date of closing on the real estate transaction, or b) following inspection, a construction permit has been issued by the Department for each noncompliant graywater treatment system on the property and the buyer has agreed, in a writing acceptable to the Department, to assume the applicant’s obligations under the permit and to complete the necessary repair/construction within the timeframe dictated by the permit. The existing graywater treatment system must meet, at a minimum, the following criteria and conditions: Page 10 of 43 Attachment A Graywater Treatment System Regulations i. All tanks must be structurally sound and in good working order and provided with suitable lids; ii. All internal devices and appurtenances such as tees, effluent screens and baffles that were originally provided with the tank or added later must be intact and in working order; iii. Alarms, control devices, and components necessary for the operation of the system are present and in good working order; iv. A subsurface irrigation system, other means of subsurface wastewater treatment, evapotranspiration, or treatment system other than those discharging through a subsurface irrigation system or sand filter is present and in good working order; v. There are no unapproved wastewater discharges from the system; and vi. Any deficiencies noted in the inspection report(s) have been corrected with the necessary permits and inspections. vii. All components and connections related to graywater reuse for toilet flushing are functioning properly and working as designed. b. A Graywater Treatment System Use Permit shall also be required prior to issuance of a building permit for a property already served by one or more graywater systems. This requirement shall be waived if each graywater treatment system on the property has received final approval of a graywater treatment system construction permit within the five year period preceding the date of issuance of the building permit. c. The Department, in its discretion, may waive the requirement for a graywater treatment system use permit where warranted by a particular fact situation (e.g., a buyer agrees to demolish an existing dwelling and abandon the existing graywater treatment system within a defined period). 3. Operating Permit a. Effective on or after July 1, 2018 an operating permit shall be required for any graywater system requiring specified maintenance on a periodic basis to ensure it is continuing to operate per manufacturer specifications. b. Graywater treatment systems requiring an operating permit shall include advanced treatment units, Graywater treatment systems serving commercial structures, and other graywater treatment systems with mechanical and/or electrical components which require periodic maintenance. c. Graywater treatment systems that are required to have an operating permit are exempt from the use permit process. C. Permit and Inspection Fees Page 11 of 43 Attachment A Graywater Treatment System Regulations Fees for permits, inspections and other services provided by the Department shall be charged on an hourly basis at the Department’s current hourly charge (at the time of the adoption it is $162/hr). D. Permit Conditions 1. The Department may condition any permit with mandatory site or system specific requirements and prohibitions. In all cases, the Department shall have the right to require that a permitted system be abandoned and served by a wastewater treatment works, if available in the future. 2. The Department may require financial security, in the form of a Performance Deposit, to ensure adequate revegetation of a graywater treatment system site, in accordance with Section 6.28.130, following completion of installation, alteration, or repair of a graywater treatment system. The Performance Deposit amount shall be determined by the Department and may be held for two complete growing seasons following completion of the installation, alteration, or repair, or until the vegetation has been successfully established to the reasonable satisfaction of the Department. 3. The issuance of a permit shall not constitute or create a presumption that the Department or its employees shall or may be liable for the failure of any system, nor act as a certification that the system, the equipment used in the system, or any component thereof, is or will be in compliance with applicable state statutes, regulations and policy directives, the provisions of this Regulation, or any terms and conditions of a permit E. Expiration and Revocation of Permit 1. Permits for the construction, installation, or alteration of a graywater treatment system shall expire at the end of one year from the date of issuance or if issued in conjunction with a building permit, the permit shall expire at the same time as the building permit. Expired graywater treatment system construction permits may be reactivated at the discretion of the Department for a period of one year, upon payment of the applicable fees. Any modifications to the original permit application will require submission of an application for a new permit and payment of applicable fees. 2. Where a g r a y w a t e r t r e a t m e n t s y s t e m construction permit is issued for repairs, the permit shall provide a maximum 30-day period within which repairs shall be made, at which time the graywater system shall be inspected by the Department. The Department may extend the permit for u p t o an additional 180-day period, for good cause shown, in the event that repairs cannot be completed in the required time period through no fault of the applicant. 3. Graywater system use permits shall remain valid until twelve months from the date of issuance. 4. Any permit found to have been issued on the basis of inaccurate, false, or misleading information provided by applicant or its representative(s) may be revoked by the Department with notice to applicant. 5. An Operating permit shall expire every two years. 6. Any change in plans or specifications of the graywater treatment system after the permit has been issued invalidates the permit unless the permittee receives written approval from the local public health agency for such changes. Page 12 of 43 Attachment A Graywater Treatment System Regulations F. Onsite Location of Permit Graywater t r e a t m e n t s y s t e m construction permits and all corresponding design information shall be kept on the job site during the construction, installation, alteration, or repair of any graywater system until final inspection approval has been given by the Department. G. Denial of Permit The Department shall deny a permit application for the construction, installation, alteration, use, or repair of a graywater system if: 1) the application fails to comply with any requirement of this Regulation, 2) a wastewater treatment works is available and willing to provide service to the site, 3) the granting of such an application would be in violation of any other applicable statute, rule, or regulation, or 4) the granting of such an application would create or continue a nuisance detrimental to public health and/or the environment. A determination to deny a permit application shall be in writing and shall include the specific reasons for the denial. The written denial shall be mailed, by certified mail, to the applicant at the address on the application. Denial shall be complete upon mailing and does not require actual receipt by the applicant. H. Appeal I. 1. The applicant may appeal a denial of a permit application to the Board of County Commissioners by filing a notice of appeal and a brief written statement of the grounds for the appeal with the Department no later than 60 calendar days after the written denial is postmarked. A nonrefundable fee, as established by the Department, shall be paid by each applicant for an appeal. Within 15 business days of receipt of a timely and properly documented notice of appeal, the Department will schedule an appeal meeting (which shall be a public meeting) before the Board of County Commissioners. To the degree possible, appeals will be scheduled for the next regularly scheduled meeting of the Board of County Commissioners with an available time slot. 2. At the meeting on the appeal, the Board of County Commissioners shall review the record of the Department’s decision and shall provide the applicant an opportunity to discuss the grounds for the appeal and the basis for the alleged error in the Department’s decision. The Board of County Commissioners may also hear from any third party it deems appropriate, at the expense of the applicant. The Board of County Commissioners shall only reverse, modify, or remand a decision on appeal if it finds that there has been a clear and demonstrable error, abuse of discretion, or denial of procedural due process in the application of the facts in the record to the requirements of this Regulation Graywater Treatment System Permit Procedures The Department web page on the Pitkin County website should be referenced for current permit applications and checklists, fees, policies and guidance documents. The Department will not begin review of a permit application until a complete and fully-executed application has been received, with all required documentation and fees, as specified on the checklist. It is the obligation of the applicant to ensure the sufficiency of the application package and fees prior to submittal. Page 13 of 43 Attachment A Graywater Treatment System Regulations J. Graywater Construction Permit 1. Permit Application Process A Graywater treatment system construction permit application form and checklist shall be obtained from the Department or it’s website, for the activities specified in Section 6.29.070.B.1. The construction permitting process includes submission of a complete and fully executed permit application and all necessary supporting documentation and fees (as specified on the checklist), an initial site inspection, and a final site inspection. Applications shall contain the following minimum information: a. Legally Responsible Party/Owner and contact information; and b. Property address; and c. Property legal description and parcel i.d. number; and d. Type of permit, graywater use category, and proposed graywater uses; and e. Design flow calculation for the graywater treatment system; and f. A list of the fixture(s) that are the source(s) of the graywater; and g. A description of all products or components used in the graywater treatment system; and h. Report from Site and Soil Evaluation (section 6.29.100.B.1.i); and i. Graywater treatment system design with a legible, accurate site plan which shows pertinent physical features on subject property, and on adjacent properties, as noted in Table 12-1; and j. Approval from the Pitkin County Building Department and/or a plumbing permit from that Department for the installation of plumbing for graywater use at the site; and k. Other information, data, plans, specifications and tests as required by the Department as outlined in 6.29.70.K.3 l. A letter from the Colorado Division of Water Resources stating the water rights associated with the listed property in the application are appropriate and adequate for the allowance and use of a greywater treatment system. 2. Initial Site Inspection After the Department has reviewed the graywater treatment system construction permit application package and determined it is complete, the Department shall schedule and perform an inspection. The applicant, or the applicant’s authorized representative, shall clearly stake and label the site prior to inspection, including all components of the graywater treatment system, proposed buildings, source of domestic water, and other items that may be requested by the Department. At a minimum, the site inspection shall include a preliminary review regarding Page 14 of 43 Attachment A Graywater Treatment System Regulations the suitability of the site for the proposed graywater treatment system components considering the surrounding land use, the proposed use of the site, soil suitability, depths to bedrock and high groundwater, ground slope, and the ability to meet the setback requirements of the property relative to water courses, wells, wetlands and other pertinent physical and environmental features specified in Section 6.29.100.B.1.g of this Regulation. Initial site inspections may be limited if weather and site conditions do not provide Department staff with safe and easy access for an accurate assessment of the site. The Department may waive the requirement for a site inspection in instances where staff has sufficient familiarity with a site to independently evaluate the application. 3. Additional Tests or Documentation If the Department determines that there is insufficient information for evaluation of an application, it shall require additional tests or documentation. When specific evidence suggests that undesirable surface, subsurface, or other conditions exist, the Department may require that the applicant submit additional hydrologic, geologic, engineering, or other information, including, but not limited to data, opinions or certifications provided by a PE or qualified geologist. All additional testing and evaluations shall be at the expense of the applicant. 4. Evaluation Criteria All graywater treatment system construction permit applications will be evaluated based on the criteria specified in this Regulation. In order for a permit to be issued, the following criteria must be met: a. All land use approvals and other relevant permits must be obtained (and recorded, as necessary) prior to issuance of a graywater treatment system construction permit. These may include, but are not limited to, a Pitkin County Community Development-approved site plan delineating the area(s) approved for development. Systems must be sited within designated development envelopes, where required. b. An adequate water supply must be demonstrated for potable water systems in accordance with Colorado water law, this Regulation and the requirements of the Pitkin County Land Use Code. An adequate water supply provided by a public water system requires documentation of approval by the CWQCD and must satisfy the requirements of the Primary Drinking Water Regulations. Onsite water supply wells must be drilled prior to approval of a graywater treatment system construction permit application. If a water supply will not be obtained on site, then additional written documentation demonstrating legal access to the alternative water supply (e.g., recorded easements) must be provided c. All graywater treatment system designs must adhere to the technical criteria of this Regulation with regard to sizing, location, materials, piping, backfill, and other factors. d. Setbacks from reservoirs, lakes, streams, ditches, wells, wetlands, floodplains, riparian zones, and other features specified in Section 6.29.100.B.1.g of this Regulation must be met. Page 15 of 43 Attachment A Graywater Treatment System Regulations e. Graywater treatment systems shall be designed, constructed, installed, repaired, replaced and altered in a manner that protects water resources, particularly in environmentally sensitive or vulnerable areas. Where water bodies are subject to Total Maximum Daily Loads (TMDLs), a graywater treatment system shall only be permitted in accordance with load allocations assigned under such TMDLs. f. Graywater treatment systems located in easements shall meet all requirements of this Regulation. Activity and development restrictions above the graywater treatment system must be clearly documented and recorded (as necessary). g. OWTS system components (tanks, soil treatment area, etc.), wells, springs, other bodies of water, riparian areas, and wetlands within 100 feet of an graywater treatment system soil treatment bed or trench shall be identified on the site plan submitted to the Department in connection with a permit application 5. Final Approval a. The licensed systems contractor or property owner (if an authorized selfinstallation has occurred) shall request a final inspection of the graywater treatment system from the Department and the PE who designed the system prior to backfilling of any excavation related to the system or its components. If a dosing device is installed, one complete cycle of that device must be observed by the PE designing the graywater treatment system and/or the Department. In the event the Department is called for a final inspection of an graywater treatment system and the graywater treatment system is not ready for a final inspection on the date specified, the applicant shall be assessed an additional fee for staff time spent traveling to and from the site, using the Department’s hourly rate. This fee must be paid prior to receipt of final system approval. b. Following inspection, final grading must be completed and an “as-built” drawing shall be submitted to the Department, including, at a minimum, a site plan showing actual construction details and the actual locations of graywater treatment system components, including GPS coordinates. For graywater treatment systems constructed under supervision of a PE, the PE shall also certify in writing to the Department that construction and installation of the system have been completed in accordance with the terms of the engineered design that was submitted to and approved by the Department. “Asbuilt” drawings must be received by the Department within 30 days of final inspection by the Department, unless a longer period of time has been agreed to by the Department, in writing. The Department shall assess an additional permit fee (which must be paid prior to receipt of final system approval) if an “as-built” drawing is not timely received. c. The system contractor shall be identified prior to final approval d. Prior to final approval of the graywater treatment system, the applicant shall demonstrate, in writing, that all indoor plumbing and components related to graywater use and subject to a Pitkin County Plumbing Permit from the Pitkin County Building Department have been given final approval by that Department. Where construction of graywater plumbing has not been completed, a written letter from the Pitkin County Building Department stating it is acceptable that Pitkin EH give final approval, is required. e. If the Department determines that the graywater treatment system has been constructed, installed, altered, repaired, replaced, and/or relocated in accordance with this Regulation and the permit requirements, the Department shall issue final approval for Page 16 of 43 Attachment A Graywater Treatment System Regulations the completed system. If the review and/or inspection discloses any significant departure from the location or design of the graywater treatment system as stated in the application and permit, or if any aspect of the graywater treatment system fails to comply with this Regulation, final approval shall be withheld. Written notice of the deficiency(ies) shall be provided to the applicant. Final approval shall be granted only when a reinspection has occurred and the system has been determined to be in compliance with the requirements stated above. Additional reinspection(s) may be subject to additional fees as outlined in the Pitkin County Environmental Health Fee Ordinance. f. Any changes to the approved installation that result in conditions that would have prohibited the system from meeting the requirements of this Regulation at the time of final approval (i.e., covering tank access ports in excess of allowable depth, changes to the depth of the subsurface irrigation system(s), removal of inspection ports or vents, inadequate or improper revegetation) will subject the property owner(s) to mandatory upgrades and repairs at such time as a system inspection, complaint investigation, or other site visit reveals such violation of this Regulation. g. Backfilling and compaction of the subsurface irrigation system shall be accomplished in a manner that does not impair the intended function and performance of the storage/distribution media and soil and distribution laterals, allows for the establishment of vegetative cover, minimizes settlement and maintains proper drainage. 6. Emergency Repairs a. An application for an graywater treatment system construction permit shall be submitted to the Department by the property owner(s), or an occupant, if the owner(s) cannot be reached, or the legally responsible party within two business days after a malfunctioning system or component becomes evident, or is brought to the attention of the owner(s)/occupant(s) following a system inspection, or after a notice is provided by the Department that the graywater treatment system is not functioning in compliance with this Regulation or otherwise constitutes a nuisance or hazard to public health and/or the environment. b. In the case of a malfunctioning system, the applicant may request authorization for emergency use of the existing system, or the emergency use of a vault or vault privy, during the repair period. c. As a condition of issuing a permit for emergency repairs, the Department may require a firm schedule for the repairs and proof of the ability to timely perform the requisite repairs, including but not limited to a contract for such repairs. The Department may also require insurance, bonding, or other provisions be made to ensure mitigation of any damage that may be caused by the emergency use of a malfunctioning or alternative system. K. Graywater Treatment System Use Permit 1. A Graywater Treatment System Use Permit is required for property transactions resulting in a change in ownership of a property served by a graywater treatment system or requiring a building permit, unless exempted under Section 6.29.070.B.2.b and c. The use permitting process includes submission of a complete and fully executed permit application and fees, together with the following additional information and supporting documentation: Page 17 of 43 Attachment A Graywater Treatment System Regulations a. The use permit application shall include: i. Legally Responsible Party/Owner and contact information; and ii. Property address; and iii. Property legal description and parcel i.d. number; and iv. Name of Inspector; v. Date and time of the inspection(s) b. A site plan showing the existing topography, location of each existing graywater treatment system and each graywater treatment system’s relation to buildings, property lines, ditches, water courses, source of domestic water, OWTSs, and other graywater treatment systems and such other information, as may be required pursuant to Section 6.29.100.B.1.g. GPS coordinates documenting existing graywater treatment systems’ locations shall also be provided. c. A written inspection report by a licensed systems inspector or the Department documenting an inspection conducted within the one year period preceding the date of issuance of the use permit providing an assessment of the condition of each existing graywater treatment system and each graywater treatment system’s ability to serve the property without adverse impact to public health and the environment, and specifying any repairs, enlargement or other alteration necessary to bring an graywater treatment system into compliance with the requirements of this Regulation. d. An inspection report completed within the previous 12 months for any mechanical components such as pumps, alarms or treatment systems. e. A description and layout of each graywater treatment system on the property. f. In instances where a use permit is being sought in connection with an application for a building permit (e.g. remodel, addition, etc.), the applicant must also submit building plans in order to verify that the size of the existing graywater treatment system(s) will accommodate the new construction and a recorded Pitkin County Community Development-approved site plan delineating the area(s) approved for development to verify that the new construction will not result in site modifications that could adversely affect the functioning of the existing graywater treatment system(s) (e.g., soil compaction, modifications to drainage patterns). In instances where a use permit is being sought in connection with a property transaction, current floor plans for the building(s) served by the existing graywater treatment system(s) shall be submitted. g. Statement of the size, type and capacity of the system and an as-built drawing, either from Pitkin County records or the inspection reports; h. Type of permit, graywater use category, and proposed graywater uses; and i. A list of the fixture(s) that are the source(s) of the graywater; and Page 18 of 43 Attachment A Graywater Treatment System Regulations j. A description of all products or components used in the graywater treatment system; and k. Evidence of past failures as shown in Pitkin County records; and l. Circumstances or factors that may have affected the ability of the inspector to evaluate the system. 2. If no repairs, enlargement, or other alterations are required, then an graywater treatment system use permit shall be issued. If construction or repairs are required to bring an graywater treatment system into compliance with this Regulation, then a construction permit application shall be submitted in accordance with Section 6.29.070.K.1. L. Operating Permit for Graywater Treatment Systems Effective on or after July 1, 2018 an operating permit shall be required for any graywater treatment system requiring an operator and/or specified maintenance on a periodic basis to ensure it is continuing to operate per manufacturer specifications. 1. All graywater treatment system(s) identified in section 6.28.070.B.3 shall be required to have an operating permit to ensure the system is functioning as specified by the manufacturer. The operating permit shall show evidence that the system is under a current maintenance contract and is routinely inspected per manufacturer requirements by a certified maintenance provider. 2. A graywater treatment system that requires an operating permit shall be maintained and the permit renewed every two years until the system is either abandoned or the Department authorizes the decommissioning or remodel of the graywater system. 3. The Department may revoke an operating permit for non-compliance with the permit conditions or requirements of these Regulations. 4. The Department may assess penalties for non-renewal of an operating permit or noncompliance with the terms of the permit. 5. The Department shall maintain accessible records that indicate: a. Owner and contact information; b. Address and legal description of property; c. Location of the graywater treatment system specifying location of graywater tank, treatment system, subsurface irrigation system and other components; d. Description of graywater treatment system installed; Page 19 of 43 Attachment A Graywater Treatment System Regulations e. Level of treatment to be provided; f. Inspection and maintenance performed: i. Dates system was inspected and/or maintained ii. Name and contact information of inspector and/or maintenance provider; iii. Condition of system at inspection; and iv. Maintenance tasks performed; g. Condition of system at completion of any maintenance activity. 7. Frequency of inspection and maintenance must be the most frequent of: a. Manufacturer recommendations for proprietary systems or design criteria requirements for public domain technology; or b. Pitkin County or Division requirements; or c. Every six months for higher level treatment systems with mechanical parts; or d. Every 12 months for higher level treatment systems with no mechanical parts. 8. Owner responsibilities: a. Ensure graywater treatment system is operating, maintained and performing according to the required standards for the designated treatment level; b. Maintain an active service contract with a maintenance provider at all times; and c. Each time his/her current contract with a maintenance provider is renewed or replaced, send a copy to the local public health agency within 30 days of signing. 6.29.080 Graywater Use Categories General: The graywater use categories allowed are defined below. A single facility may have multiple graywater treatment works as long as all applicable use and design requirements are satisfied. A. Category A: Single family, subsurface irrigation Category A graywater use must meet the Page 20 of 43 Attachment A Graywater Treatment System Regulations following: B. 1. Allowed users: Single family. 2. Allowed graywater sources: Graywater collected from bathroom and laundry room sinks, bathtubs, showers, and laundry machines. 3. Allowed uses: Outdoor, subsurface irrigation within the confines of the legal property boundary. 4. Design flow: The design flow for a single family graywater treatment works is limited to 400 gallons per day (gpd) or less combined flow for all approved uses. Category B: Non-single family, subsurface irrigation, 2,000 gallons per day (gpd) or less Category B graywater use must meet the following: C. 1. Allowed users: Non-single family users. 2. Allowed graywater sources: Graywater collected from bathroom and laundry room sinks, bathtubs, showers, and laundry machines. 3. Allowed uses: Outdoor, subsurface irrigation within the confines of the legal property boundary. 4. Design flow: The design flow for a non-single family graywater treatment works is limited to 2,000 gallons per day (gpd) or less for outdoor irrigation for the entire facility. Category C: Single family, indoor toilet and urinal flushing, subsurface irrigation Category C graywater use must meet the following: D. 1. Allowed users: Single family. 2. Allowed graywater sources: Graywater collected from bathroom and laundry room sinks, bathtubs, showers, and laundry machines. 3. Allowed uses: Indoor toilet and urinal flushing and outdoor, subsurface irrigation within the confines of the legal property boundary. 4. Design flow: The design flow for a single family graywater treatment works is limited to 400 gallons per day (gpd) or less combined flow for all approved uses. Category D: Non-single family, indoor toilet and urinal flushing, subsurface irrigation Category D graywater use must meet the following: Page 21 of 43 1. Graywater Treatment System Regulations 2. Allowed graywater sources: Graywater collected from bathroom and laundry room sinks, bathtubs, showers, and laundry machines. 3. Allowed uses: Indoor toilet and urinal flushing and outdoor, subsurface irrigation within the confines of the legal property boundary. 4. Design flow: There is no maximum design flow for a non-single family graywater treatment works for indoor toilet and urinal flushing. There is no maximum design flow for the amount of wastewater from the facility that can go to a closed sewerage system. The design flow is limited to 2,000 gallons per day (gpd) or less for outdoor irrigation for the entire facility. 6.29.090 A. Attachment A Allowed users: Non-single family users. Graywater Treatment Systems – Flow Projections Flow projections for all graywater treatment systems 1. Graywater treatment systems must be sized appropriately using the following flow projection methods: a. b. 6.29.100 Residential users: Flow to graywater treatment systems must be calculated on the occupancy and the fixtures connected to the graywater treatment system. The calculated graywater flow is the number of occupants multiplied by the estimate graywater flow in terms of gpd/occupant from the attached fixtures. i. The occupancy must be calculated based on a minimum of two (2) occupants for the first bedroom and one (1) occupant for each additional bedroom. ii. The estimated graywater flow from each fixture is based on the design flow of the fixture or if the fixture’s design flow is unknown then the estimated graywater flow per occupant is with based on the following gallons per day per occupant. (a) Traditional fixtures: 25 gpd/occupant for each shower, bathtub, and wash basin and 15 gpd/occupant for each clothes washer. (b) Water saving fixtures: 20 gpd/occupant for each shower, bathtub, and wash basin and 8 gpd/occupant for each clothes washer. Non-residential users: Graywater treatment systems must be sized in accordance with fixture or water use records taking into account the number of fixtures attached to the graywater treatment system. Graywater Treatment Works - Design Criteria Page 22 of 43 A. Attachment A Design criteria for all graywater treatment systems Graywater Treatment System Regulations The following minimum design criteria are required for all graywater treatment systems. All graywater treatment systems must: 1. Meet all design requirements of this regulation and meet any additional design requirements of the Colorado Plumbing Code. 2. Each treatment component or combination of multiple components must have a design flow greater than the calculated peak graywater production, if upstream of the storage tank or if no tank is present. 3. Include a diversion valve that directs graywater to either the graywater treatment system or a closed sewerage system. The diversion valve must be: a. Easily operable; b. Clearly labeled; c. Constructed of material that is durable, corrosion resistant, watertight; d. Designed to accommodate the inlet and outlet pipes in a secure and watertight manner; and e. Indirectly connect the bypass line to the closed sewerage system. 4. Not have any piping that allows the treatment process(es) or a storage tank to be bypassed prior to graywater use. 5. Include a tank to collect and store graywater, except for a subsurface irrigation system that discharges to a mulch basin. The storage tank must: a. Be constructed of durable, non-absorbent, water-tight, and corrosion resistant materials; b. Be closed and have access openings for inspection and cleaning; c. Be vented: i. for indoor tanks: the tanks must be vented to the atmosphere outside of the house; ii. for outdoor tanks: the storage tank must have a downturned screened vent; Page 23 of 43 d. 6. Attachment A Have an overflow line: Graywater Treatment System Regulations i. with the same or larger diameter line as the influent line; ii. without a shut off valve; iii. that is trapped to prevent the escape of gas vapors from the tank; and iv. that is indirectly connected to the closed sewerage system; e. Have a valved drain line with the same or larger diameter line as the influent line that is indirectly connected to the closed sewerage system; f. Be a minimum of 50 gallons; g. Be placed on a stable foundation; h. If located outdoors, not be exposed to direct sunlight; and i. Have a permanent label that states “CAUTION! NON-POTABLE WATER. DO NOT DRINK.” For indoor toilet or urinal flushing systems (Categories C and D) graywater treatment systems must have a backup potable water system connection. For subsurface irrigation systems (Categories A and B) graywater treatment systems may, but are not required to, have a backup potable water system that provides potable irrigation water when graywater is not being produced or is produced in insufficient quantities. A backup potable water system connection must meet the following requirements: a. For non-public water system, potable water system connections: uncontrolled cross connections between a potable water system and a graywater treatment system are prohibited. All cross connections must be protected by a reduced pressure principle backflow prevention zone assembly or an approved air gap. b. For public water system, potable water system connections: uncontrolled cross connections between a public water system and a graywater treatment system are prohibited. The graywater treatment system design must protect the public water system from cross connections by meeting the requirements of Regulation #11: Colorado Primary Drinking Water Regulations. 7. Not be used as a factor to reduce the design, capacity or soil treatment area requirements for OWTS or domestic wastewater treatment systems. 8 Have any wastewater from graywater treatment systems (e.g., filter backwash water) be properly contained and disposed into a closed sewerage system or an approved Underground Injection Control (UIC) well. Page 24 of 43 Attachment A 9. Graywater Treatment System Regulations Have all graywater piping clearly distinguished and must be clearly labeled, including pipe identification and flow arrows. 10. If located in a 100-year floodplain area, meet or exceed the requirements of FEMA and the local emergency agency. The graywater treatment system must be designed to minimize or eliminate infiltration of floodwaters into the system and prevent discharge from the system into the floodwaters. B. 11. Not be located in floodways. 12. Be located within the confines of the legal property boundary and not within an easement; Design criteria for subsurface irrigation systems 1. All subsurface irrigation systems: The following minimum design criteria are required for all graywater treatment systems being used for subsurface irrigation. All subsurface graywater irrigation systems must: a. Have the subsurface irrigation components of the graywater irrigation system installed a minimum of four inches (4”) and a maximum of twelve inches (12”) below the finished grade. b. Have the subsurface irrigation components of the graywater irrigation system installed in suitable soil, as defined in section 6.29.100.B.1.i. c. Have a minimum of twenty-four inches (24”) of suitable soil between the subsurface irrigation components of the graywater irrigation system and any restrictive soil layer, bedrock, concrete, or the highest water table. Restrictive soil layers are soil types 4, 4A, and 5 in Table 12-2. d. Include controls, such as valves, switches, timers, and other controllers, as appropriate, to ensure the distribution of graywater throughout the entire irrigation zone. e. If utilizing emitters, the emitters must be designed to resist root intrusion and be of a design recommended by the manufacturer for the intended graywater flow and use. Minimum spacing between emitters shall be sufficient to deliver graywater at an agronomic rate and to prevent surfacing or runoff. f. Have all irrigation supply lines be polyethylene tubing or PVC Class 200 pipe or better and Schedule 40 fittings. All joints shall be pressure tested at 40 psi (276 kPa), and shown to be drip tight for five minutes before burial. Drip feeder lines can be poly or flexible PVC tubing. Page 25 of 43 Attachment A Graywater Treatment System Regulations Meet the following setback distances in Table 12-1. g. Table 12-1: Graywater System Setback Requirements Minimum Horizontal Distance Required from: Graywater Storage Tank Subsurface Irrigation Field Buildings 5 feet 20 feet Property line adjoining private property 10 feet 10 feet Property line adjoining private property with supporting property line survey 1.5 feet 1.5 feet Water supply wells 50 feet 100 feet Streams and lakes 50 feet 100 feet Seepage pits or cesspools 5 feet 25 feet OWTS disposal field 5 feet 25 feet OWTS tank 5 feet 10 feet Domestic potable water service line 10 feet 20 feet Public water main 10 feet 10 feet h. The irrigation field must be located on slopes of less than thirty percent (30%) from horizontal. i. Protocols for determining the size of the subsurface irrigation area: The irrigation area must be determined using one of the following protocols. i) Site evaluation protocol: The following site evaluation must be conducted to determine the appropriate size of the irrigation area for all subsurface irrigation systems, except single family dispersed subsurface irrigation systems (Category A and C dispersed subsurface irrigation systems) that are sized using the irrigation area equation protocol as defined in section 6.29.100(B)(1)(i)(ii). The site evaluation must include: (a) (b) Site information, including: (1) a site map; and (2) location of proposed graywater irrigation area in relation to physical features requiring setbacks in Table 12-1. Soil investigation to determine long-term acceptance rate of a graywater irrigation area as a design basis. Soil investigation must be completed by either: Page 26 of 43 Attachment A (c) Graywater Treatment System Regulations (1) a visual and tactile evaluation of soil profile test pit, or (2) a percolation test. Irrigation rates must not exceed maximum allowable soil loading rates in Table 12-2 based on the finest textured soil in the twentyfour inches (24”) of suitable soil beneath the subsurface irrigation components Table 12-2: Soil Type Description and Maximum Hydraulic Loading Rate Soil Type 0 1 USDA Soil Texture Soil Type 1 with more than 35% Rock (>2mm); Soil Types 2-5 with more than 50% Rock (>2mm) Sand, Loamy Sand USDA Structure – Shape -- USDA Soil StructureGrade Percolation Rate (MPI) Loading Rate for Graywater (gal./sq. ft./day) 0 (Single Grain) Less than 5 Not suitable without augmentation 0 5-15 1.0 with augmentation Not suitable without augmentation -- 1.0 with augmentation 2 2A 3 3A 4 4A 5 Sandy Loam, Loam, Silt Loam Sandy Loam, Loam, Silt Loam Sandy Clay Loam, Clay Loam, Silty Clay Loam Sandy Clay Loam, Clay Loam, Silty Clay Loam Sandy Clay, Clay, Silty Clay Sandy Clay, Clay, Silty Clay Soil Types 2-4A PR, BK, GR 0 (none) 2 (Moderate) 3 (Strong) 1 (Weak) Massive PR, BK, GR 2, 3 41-60 0.4 PR, BK, GR 0 1 Massive 61-75 0.2 2, 3 76-90 Not suitable 1 Massive 91-120 Not suitable 1, 2, 3 121+ Not suitable PR BK GR PR, BK, GR PR, BK, GR 0 Platy 16-25 0.8 26-40 0.6 (d) Suitable soil may consist of original, undisturbed soil or original soil that is augmented. Not suitable soil may be augmented as needed to ensure suitable soil is used. (e) If the original soil is augmented, the mixture used for augmentation must meet the following criteria to ensure that Page 27 of 43 Attachment A Graywater Treatment System Regulations suitable soil is achieved: ii) (1) The mixture must have an organic content that is at least five percent (5%) and no greater than ten percent (10%); (2) The mixture must be a well-blended mix of mineral aggregate (soil) and compost where the soil ratio depends on the requirements for the plant species; and (3) The mineral aggregate must have the following gradation: Sieve Size Percent Passing 3/8 100 No. 4 95 - 100 No. 10 75 - 90 No. 40 25 - 40 No. 100 4 - 10 No. 200 2-5 (f) If the original soil is augmented, the additional soil must be tilled into the native soil a minimum of six inches (6”) below irrigation application zone. (g) Soil types 0 and 1 must be augmented before use. Soil type 4, 4A, and 5 are not suitable for subsurface irrigation. Irrigation area equation protocol: The following irrigation area equation protocol may be used to determine the appropriate size of the irrigation area for single family, dispersed subsurface irrigation systems (Categories A and C dispersed subsurface irrigation systems). This protocol cannot be used to size mulch basins. LA = GW / (CF x ET x PF) Where: LA = Landscaped area (square feet) ; GW = Estimated graywater flow (gallons per week) ; CF = 0.62 (square foot x inch / gallon) = ((7.48 gallons/ 1-cu-ft) / 12 inch/ft) ; Page 28 of 43 ET = Evapotranspiration rate (inch / week), as determined by USDA Natural Resources Conservation Service CO652.0408 “Figure CO41: Map of Colorado Climate Zones” dated April 1978, or weekly averages based on actual Attachment A 2. Graywater Treatment System Regulations Mulch basin irrigation system requirements The following minimum design criteria are required for graywater treatment systems using mulch basin systems for subsurface irrigation: a. Mulch shall be permeable enough to allow rapid infiltration of graywater. b. The minimum void space mulch basin volume must be either: i. Three (3) times the anticipated average daily flow for graywater treatment works without a storage tank to allow for graywater volume surges and to prevent surfacing or runoff. ii. One and a half (1.5) times the anticipated average daily flow for graywater treatment works with storage tank meeting the section 6.29.090.A design criteria. c. Piping to mulch basins must discharge a minimum of four inches (4”) below grade into a container for dispersal of graywater into the mulch basin. The container must be designed to have four inches (4”) of freefall between the invert of the discharge pipe and the mulch. The container must have an access lid for observation of flow and to check mulch levels. d. The mulch basin must have a minimum depth of twelve inches (12”) below grade and not more than twenty four (24”) below grade. Page 29 of 43 Attachment A e. 3. Graywater Treatment System Regulations A filter is not required. Dispersed subsurface irrigation system requirements The following minimum design criteria are required for graywater treatment systems using dispersed irrigation systems for subsurface irrigation: a. C. Include a cartridge filter, which must meet the following requirements: i. A minimum of 60 mesh; ii. Located between the storage tank and the irrigation system; iii. If a pump is being used to pressurize the graywater distribution system, the filter must be located after the pump. Design criteria for indoor toilet and urinal flushing graywater treatment systems (Categories C and D) 1. Category C: single family, indoor toilet and urinal flushing graywater treatment systems The following minimum design criteria are required for graywater treatment systems for Category C: single family, indoor toilet and urinal flushing: a. The graywater treatment system must be certified under “Class R” of NSF/ANSI 350 Onsite Residential and Commercial Water Reuse Treatment Systems. b. If a disinfection process is not part of NSF/ANSI 350-2011 equipment, separate disinfection system equipment is required. For graywater treatment systems that use sodium hypochlorite (bleach), the graywater treatment works must be capable of providing a free chlorine residual of 0.2 to 4.0 mg/L in the graywater throughout the indoor graywater plumbing system. c. The graywater treatment system must include a dye injection system that is capable of providing a dye concentration that is visibly distinct from potable water. Page 30 of 43 Attachment A d. 2. Graywater Treatment System Regulations For Category C indoor toilet and urinal flushing graywater treatment systems that are also capable of using graywater for subsurface irrigation, the system may be designed to allow graywater to be diverted to the subsurface irrigation graywater treatment system prior to the disinfection and dye process, however after the point of diversion the subsurface irrigation portion of the system must meet the requirements in section 6.29.100.B. Category D: non-single family, indoor toilet and urinal flushing graywater treatment works The following minimum design criteria are required for Category D: non-single family, indoor toilet and urinal flushing: D. a. The graywater treatment system must be certified under “Class R” or “Class C” of NSF/ANSI 350 Onsite Residential and Commercial Water Reuse Treatment Systems. Required classification shall be dictated by the size of the graywater treatment system and if the graywater sources are residential or commercial as defined by NSF/ANSI 350. b. Separate disinfection system equipment is required if a disinfection process is not part of NSF/ANSI 350-2011 equipment. A graywater treatment system must be capable of providing a free chlorine residual of 0.2 to 4.0 mg/L in the graywater throughout the indoor graywater plumbing system. c. The graywater treatment systems must include a dye injection system that is capable of providing a dye concentration that is visibly distinct from potable water. d. For Category D indoor toilet and urinal flushing graywater treatment systems that are also capable of using graywater for subsurface irrigation, the system may be designed to allow graywater to be diverted to the subsurface irrigation graywater treatment system prior to the disinfection and dye process, however after the point of diversion the subsurface irrigation portion of the system must meet the requirements in section 6.29.100.B. e. For graywater treatment systems that have a capacity to receive greater than 2,000 gallons per day, the design must be prepared under the supervision of and submitted with the seal and signature of a professional engineer licensed to practice engineering in the State of Colorado in accordance with the requirements of the Colorado Department of Regulatory Agencies (DORA) – Division of Registrations. Signage requirements for non-single family graywater treatment systems (Categories B and D) 1. All required notifications shall include posting of signs of sufficient size to be clearly read with the language below in the dominant language(s) expected to be spoken at the site. Page 31 of 43 2. Attachment A Graywater Treatment System Regulations All non-single family graywater treatment systems (Categories B and D) All non-single graywater treatment systems must comply with the following signage requirements: a. A permanent warning sign must be visible at all fixtures from which graywater is collected. The signs must state that, “WATER FROM THIS FIXTURE IS REUSED. CHEMICALS, EXCRETA, PETROLEUM OILS AND HAZARDOUS MATERIALS MUST NOT BE DISPOSED DOWN THE DRAIN”; Page 32 of 43 Attachment A b. 3. Graywater Treatment System Regulations Each room that contains graywater treatment system components must have a sign that says “CAUTION GRAYWATER TREATMENT SYSTEM, DO NOT DRINK, DO NOT CONNECT TO THE POTABLE DRINKING WATER SYSTEM. NOTICE: CONTACT BUILDING MANAGEMENT BEFORE PERFORMING ANY WORK ON THIS WATER SYSTEM.”; and Non-single family, subsurface irrigation non-single family graywater treatment systems (Categories B and D) Non-single family, subsurface irrigation graywater treatment systems (Categories B and D, if applicable) must comply with the following signage requirement: a. 4. Each irrigation area must have a sign that says “CAUTION GRAYWATER BEING USED FOR IRRIGATION. DO NOT DRINK OR CONNECT TO THE POTABLE DRINKING WATER SYSTEM.” Non-single family, indoor toilet or urinal flushing, non-single family graywater treatment systems (Category D) Non-single family, indoor toilet and urinal flushing graywater treatment systems (Category D) must comply with the following signage requirement: a. 6.29.110 Each toilet and urinal must have a sign that says: “TO CONSERVE WATER, THIS BUILDING USES TREATED NON-POTABLE GRAYWATER TO FLUSH TOILETS AND URINALS.” Operation and Maintenance Manual All graywater systems must have an O&M manual. The O&M manual must include the following items: A. A graywater treatment system description including: equipment list, design basis data including but not limited to, design volumes, design flow rates of each component and service area, system as- built drawing, and process description. B. Maintenance information for the graywater treatment system including but not limited to: component maintenance schedule, instructions for component repair, replacement, or cleaning, replacement component source list, testing and frequency for potable containment device, and instructions for periodic removal of residuals. C. Operational ranges for parameters including but not limited to: disinfectant concentration levels, filter replacement parameters, pressure ranges, tank level, and valve status under normal operation. Page 33 of 43 Attachment A Graywater Treatment System Regulations D. Step-by-step instructions for starting and shutting down the graywater treatment system including but not limited to: valve operation, any electrical connections, cleaning procedures, visual inspection, and filter installation. E. A guide for visually evaluating the graywater treatment system and narrowing any problem scope based on alarm activations, effluent characteristics, system operation, and history. F. A list of graywater control measures in which the graywater treatment system must be operated. 6.29.120 Graywater Use Requirements - Control Measures A. Control measures are operational requirements representing best management practices that graywater systems must follow when operating a graywater treatment systems. B. Control measures that apply to all graywater uses All graywater treatment works must be operated in accordance with the following control measures: 1. Graywater must be collected in a manner that minimizes the presence or introduction of: a. hazardous or toxic chemicals in the graywater to the greatest extent possible; b. human excreta in the graywater to the greatest extent possible; c. household wastes; and d. animal or vegetable matter. 2. Use of graywater is limited to the confines of the facility that generates the graywater. 3. The graywater treatment system must be operated and maintained in accordance with the O&M manual, including all manufacturer recommended maintenance activities. The O&M manual must remain with the graywater treatment system throughout the system’s life and be updated based on each modification and approval made to the system. The O&M manual must be transferred, upon change of ownership or occupancy, to the new owner or tenant. a. For Category D graywater treatment systems that have a capacity to receive Page 34 of 43 Attachment A Graywater Treatment System Regulations greater than 2,000 gallons per day (gpd), operational and maintenance records must be maintained for a minimum of the past five (5) years. 4. The owner or operator of a graywater treatment system must minimize exposure of graywater to humans and domestic pets. 5. Graywater use and graywater treatment systems must not create a public nuisance. 6. Graywater must not be stored for more than 24 hours unless the graywater has been treated by a graywater treatment system that meets the design requirements of section 6.29.100. All graywater must be stored inside a tank(s) that meets the design requirements of section 6.29.100.A.5. 7. C. Temporary or semi-temporary connections from the potable water system or public water system to the graywater treatment system are prohibited. Permanent connections from the potable water system or public water system to the graywater treatment system must meet the design requirements of 6.29.090.A.6. Control measures that apply to subsurface irrigation graywater use Subsurface irrigation graywater treatment systems must be operated in accordance with the following additional control measures: D. 1. Agricultural irrigation with graywater is prohibited. 2. Irrigation is prohibited when the ground is frozen, plants are dormant, during rainfall events, or the ground is saturated. 3. Irrigation scheduling must be adjusted so that application rates are closely matched with soil and weather conditions. 4. Graywater must be applied in a manner that does not result in ponding, runoff, or unauthorized discharge to state waters. For dispersed subsurface irrigation systems, the graywater must be applied at an agronomic rate. For mulch basins systems, the graywater must not be applied in excess of the soil adsorption rate. 5. For mulch basin systems, mulch must be replenished and undergo periodic maintenance as needed to reshape or remove material to maintain surge capacity and to prevent ponding and runoff. Control measures that apply to indoor toilet and urinal flushing graywater use Indoor toilet and urinal flushing graywater treatment systems (Categories C and D) must be operated in accordance with the following additional control measures. Page 35 of 43 Attachment A 1. 2. Graywater Treatment System Regulations Graywater for toilet and urinal flushing use must be disinfected. a. Graywater treatment works that utilize chlorine for disinfection must have a minimum of 0.2 mg/L and a maximum of 4.0 mg/L of free chlorine residual throughout the indoor graywater plumbing system, including fixtures. b. Single family graywater treatment systems that utilize non-chemical methods, such as UV, for disinfection must have a chlorine puck present in each toilet or urinal tank. Graywater for toilet and urinal flushing must be dyed with either blue or green food grade vegetable dye and be visibly distinct from potable water. 6.29.130 Revegetation of All OWTS Sites A. Revegetation Requirements An adequate layer of good quality topsoil capable of supporting revegetation shall be placed over the entire disturbed area of an OWTS installation. The topsoil may be part of the minimum required cover depth of 1 foot. The topsoil shall be planted with a mixture of native grass seed that has good soil stabilizing characteristics (but without taproots), provides a maximum transpiration rate, and competes well with primary successional species. No trees or shrubs, or any vegetation requiring regular irrigation, shall be planted over the area. All seed mixtures utilized for revegetation must be certified weed free and approved by Pitkin County Land Management (as confirmed by inclusion in The Pitkin County Revegetation Guide). B. Maintenance of Vegetation Until vegetation is reestablished, erosion and sediment control measures shall be implemented and maintained on site. The owner(s) of an OWTS shall be responsible for maintaining proper vegetative cover and may be required to remove inappropriate materials and properly revegetate any time a violation is found to exist. 6.29.140 Certified Operator A graywater treatment system must be operated by qualified personnel who meet any applicable requirements of Regulation #100, the Water and Wastewater Facility Operators Certification Requirements. 6.29.150 A. Enforcement Primary Enforcement Responsibility The primary responsibility for enforcement of this Regulation shall lie with the Department. B. Access to Site Page 36 of 43 Attachment A C. Graywater Treatment System Regulations 1. The Department and its authorized representative(s) are authorized to enter upon private property at reasonable times and upon reasonable notice to determine if a graywater treatment system is functioning in compliance with §25-8.101 et. seq. C.R.S., this Regulation, and the terms and conditions of any permit. The Department and its authorized representative(s) are further authorized to enter upon private property at reasonable times and upon reasonable notice to inspect and conduct tests for purposes of evaluating any permit application. The owner(s) and occupant(s) of every property having a graywater treatment system subject to a permit, or a pending permit application, shall, by virtue of that permit or application, be deemed to have granted the Department and its authorized representative(s) permission to access the property upon which the graywater treatment system is located to conduct required tests, take samples, monitor compliance, and make inspections in accordance with this Regulation. 2. The Department, or a licensed systems inspector, shall inspect an existing graywater treatment system at the request of the property owner(s) or occupant(s) for purposes including, but not limited to property transactions to determine the need for servicing, repair and appropriate upgrades. Inspections by the Department shall be conducted following submittal of a written inspection request, subject to staff availability and following payment of inspection fees to the Department. Complaints Regarding Violations Persons who believe that a graywater treatment system is in violation of the requirements of this Regulation shall report the purported violation to the Department. The Department, in its discretion, may require the information related to any complaint to be provided in writing. Upon receipt of a complaint, the Department shall investigate the matter and, if appropriate, issue a notice of violation. The Department, in its discretion, may also refer the matter immediately to the Pitkin County Attorney’s Office and the Pitkin County Code Enforcement Officer. D. Notice of Violation; No Other Approvals or Permits to Be Issued Whenever the Department determines that there has been a violation of any provision of this Regulation, the Department (or the Pitkin County Attorney’s Office, as specified above) shall give notice of such violation to the owner(s) of the property. Such notice shall be in writing., and shall describe in detail the violation(s), provide a reasonable time for correction, and be addressed to the owner(s) of the property at the owner’s(s’) last known address, as shown on the records of the Pitkin County Assessor’s Office. Service of such notice shall be provided according to the Colorado Rules of Civil Procedure, or by overnight mail. Service by overnight mail shall be considered complete one business day after mailing. If the owner(s) cannot be found or served after a diligent effort to do so, service may be made by posting a notice in a location conspicuous on or about the property affected by the notice. E. 1. Each day during which any violation of this Regulation continues shall be deemed a separate offense. 2. Pitkin County shall be entitled to suspend or revoke any building permit, or any other type of Pitkin County permit or land use approval issued for a property where a violation is known or believed to exist during the period of the violation. Additionally, no Pitkin County land use approval or permit shall be issued for any property under the ownership or control of the same person(s) or other legal entity(ies) responsible for the violation during the period of the violation. Cease and Desist Order 1. The Department may issue an order to cease and desist from the use of any graywater treatment system that is found not to be in compliance with a permit issued by the Page 37 of 43 Attachment A Graywater Treatment System Regulations Department, not functioning in compliance with this Regulation, or that otherwise constitutes a nuisance or a hazard to public health or the environment, and that has not received timely repairs in accordance with the provisions of this Regulation. A cease and desist order may be issued only after a hearing that shall be conducted by the Public Health Director (or by the Chair of the Board of County Commissioners if the Public Health Director is not available) not less than 48 hours after written notice is given to the owner(s) of the property on which the graywater treatment system is located and at which the owner(s) may be present, with counsel, and be heard. Service of notice of the hearing shall be provided according to the Colorado Rules of Civil Procedure, or by overnight mail to the owner’s(s’) last known address, as shown on the records of the Pitkin County Assessor’s Office. Service by overnight mail shall be considered complete one business day after mailing. If the owner(s) cannot be found or served after a diligent effort to do so, service may be made by posting a notice in a location conspicuous on or about the property affected by the notice. The cease and desist order shall require that the owner(s) bring the graywater treatment system into compliance, or eliminate the nuisance or hazard within a reasonable period of time, not to exceed 30 days, or thereafter cease and desist from the use of the graywater treatment system. 2. F. A hearing on a cease and desist order may also include the assessment of monetary penalties, as specified in subparagraph F(2) below. Where the hearing is conducted by the Chair of the Board of County Commissioners (where the Public Health Director is not available), the Chair of the Board of County Commissioners shall also have the right to assess monetary penalties, as described below. Penalties 1. 2. Any person who commits any of the following acts or violates any of the provisions of this Regulation commits a Class 1 petty offense, as defined in §18-1.3-503 C.R.S: a. Constructs, alters, installs, or permits the use of any graywater treatment system without first having applied for and received a permit as provided for in Section 6.29.070 of this Regulation; b. Constructs, alters, or installs a graywater treatment system in a manner that involves a knowing and material variation from the terms or specifications contained in the application or permit; c. Violates the terms of a cease and desist order that has become final under the terms of Section 6.29.150(E) of this Regulation; d. Conducts a business as a systems contractor or systems cleaner, without having obtained the license provided for in Section 6.28.160 of this Regulation; e. Falsifies or maintains improper record keeping concerning graywater treatment system cleaning activities not performed or performed improperly; or f. It shall be the responsibility of the Pitkin County Attorney to bring a criminal enforcement action at the request of the Board of County Commissioners, following a request for criminal enforcement by the Department. Criminal enforcement shall be in addition to all other remedies specified in this Section 6.29.150. Upon a finding by the Public Health Director that a person is in violation of the provisions of this Regulation, the Public Health Director, upon request by the Department, may assess a monetary penalty for each day of violation. Such penalty shall be not less than $25 per day, nor more than $100 per day. In determining the amount of the penalty to be Page 38 of 43 Attachment A Graywater Treatment System Regulations assessed, the Public Health Director shall consider the seriousness of the danger to the public health and the environment caused by the violation, the duration of the violation, and whether the person has previously been determined to have committed a similar violation. A penalty may be assessed only after a hearing that shall be conducted by the Public Health Director after written notice is given to the owner(s) of the property on which the graywater treatment system is located and at which the owner(s) may be present, with counsel, and be heard. Service of notice of the hearing shall be provided according to the Colorado Rules of Civil Procedure, or by overnight mail to the owner’s(s’) last known address, as shown on the records of the Pitkin County Assessor’s Office. Service by overnight mail shall be considered complete one business day after mailing. If the owner(s) cannot be found or served after a diligent effort to do so, service may be made by posting a notice in a location conspicuous on or about the property affected by the notice. 3. G. A person subject to assessment of a monetary penalty pursuant to subparagraph E(3) or subparagraph F(2) above may appeal the decision to the Board of County Commissioners. No appeal shall be considered unless a notice of appeal and brief written statement of the grounds for appeal is received by the Department not later than 30 days after the decision is rendered. Within 15 business days after receipt of a properly documented notice of appeal, the Department will schedule an appeal meeting (which shall be a public meeting) before the Board of County Commissioners. To the degree possible, appeals will be scheduled for the next regularly scheduled meeting of the Board of County Commissioners with an available time slot. At the meeting on the appeal, the Board of County Commissioners shall review the record of decision and shall provide the property owner(s) an opportunity to discuss the grounds for the appeal and the basis for the alleged error in the decision. The Board of County Commissioners may also hear from any third party it deems appropriate. The Board of County Commissioners shall only reverse, modify, or remand a decision on appeal if it finds that there has been a clear and demonstrable error, abuse of discretion, or denial of procedural due process in the application of the facts in the record to the standards of this Regulation. Liens and Costs of Collection Until paid, any monetary penalty assessed pursuant to this Regulation shall, as of recording with the Pitkin County Clerk & Recorder, be a lien against the property on which the violation has been found to exist. If the assessment is not paid within 30 days, it shall be certified by the Pitkin County Attorney to the Pitkin County Assessor, who shall collect the assessment, together with a 10 percent penalty for the cost of collection, in the same manner as other Pitkin County taxes are collected. The laws of the State of Colorado for assessment and collection of general taxes shall apply to the collection of assessments pursuant to this subparagraph (G). 6.29.160 Licensing A. General 1. Systems Contractors a. Any entity or individual engaged in the construction, installation, alteration, or repair of a graywater treatment system in Pitkin County is required to be licensed by the Department as a licensed systems contractor. b. No entity or individual shall construct, install, alter, or repair a graywater treatment system unless the work is performed by a licensed systems contractor, or is being performed under the direct supervision of a licensed systems contractor. Corporations and other entities operating as systems contractors in Page 39 of 43 Attachment A Graywater Treatment System Regulations Pitkin County must employ at least one person who is a licensed systems contractor. c. A property owner may construct, install, alter, or repair an OWTS on such person's own property without a license, provided that the property owner (or an authorized representative of the property owner, in the case of an entity) receives the Department's approval by successfully demonstrating adequate knowledge of this Regulation by passing a test administered by the Department prior to construction, installation, alteration, or repair of the system. d. OWTS and graywater treatments system licenses are inclusive of each other. An individual or entity that is licensed to install OWTSs does not need to obtain a separate graywater treatment system installation license and vice a versa. 2. Systems Cleaners a. Any entity or individual engaged in graywater treatment system cleaning in Pitkin County is required to be licensed by the Department. b. No entity or individual shall engage in the cleaning of an graywater treatment system unless the work is performed by a licensed systems cleaner, or is being performed under the direct supervision of a licensed systems cleaner. Corporations and other entities operating as systems cleaners in Pitkin County must employ at least one person who is a licensed system cleaner. c. OWTS cleaner and graywater treatments system licenses are inclusive of each other. An individual or entity that is licensed to clean OWTSs does not need to obtain a separate graywater treatment system cleaner license and vice a versa. 3. B. Systems Inspectors a. Any entity or individual engaged in graywater treatment system inspection in Pitkin County is required to be licensed by the Department. b. No entity or individual shall engage in the inspection of a graywater treatment system unless the work is performed by a licensed systems inspector, or is being performed under the direct supervision of a licensed systems inspector. Corporations and other entities operating as systems inspectors in Pitkin County must employ at least one person who is a licensed systems inspector. c. OWTS and graywater treatments system licenses are inclusive of each other. An individual or entity that is licensed to inspect OWTSs does not need to obtain a separate graywater treatment system inspection license and vice a versa. Licensing Procedures for Systems Contractors, Cleaners, and Inspectors 1. Application for a systems contractor, cleaner, or inspector license, or license renewal, shall be made on forms provided by the Department. 2. Fees for a systems contractor, cleaner, or inspector license and license renewal will be established by the Department from time to time. Initial licenses and renewals thereof shall be for a period of one year. A license that lapses because of failure to renew, or is revoked, shall be subject to the fee established for an initial license upon reapplication. 3. Prior to the issuance of an initial license, license renewal, or reinstatement of a revoked license, the applicant must demonstrate adequate knowledge of this Regulation by Page 40 of 43 Attachment A Graywater Treatment System Regulations passing a test administered by the Department, or provide documentary evidence that they hold a similar type of license acceptable to the Department (e.g., NEHA’s Certified Installer of Onsite Wastewater Treatment Systems, for systems contractors and NAWT’s Inspector credential, for systems inspectors). A test will be administered for: a) all initial licenses, b) every three years for renewals (or earlier, if necessitated by a material change in this Regulation), and c) prior to reinstatement of a revoked license. 4. The fee for testing (and retesting) of a property owner engaged in the construction, installation, alteration, or repair of an OWTS on such person's own property shall be charged at the same rate as a systems contractor initial license. Initial approval and subsequent approvals given by the Department to a property owner shall be for a period of one year. C. Standards of Performance 1. 2. General a. Performance: A graywater treatment system shall be designed and constructed to achieve the treatment level specified. b. Reliability: graywater treatment systems shall be designed and constructed such that each component shall function, when installed and operated, in a manner not adversely affected by normal operating conditions including erosion, corrosion, vibration, shock, climatic conditions, and usual household chemicals. Each component shall be free of non-functional protrusions or sharp edges, or other hazards, which could cause injury to persons, animals, or properties. Design shall be such as to exclude flies and rodents and other vectors and to prevent the creation of nuisances and public health hazards and shall provide for efficient operation and maintenance. c. It is the responsibility of the systems contractor, cleaner, or inspector to report to the property owner(s) and the Department, in writing, the discovery of any prohibited component of an graywater treatment system (such as a metal tank or cesspool), or a malfunctioning system. d. Plumbing Codes: Plumbing fixtures, building sewers, vents, sewer lines and other appurtenances shall be designed, operated and maintained so as to comply with the minimum requirements of the most recently revised locally enforceable plumbing code. In absence of a local plumbing code, designs shall adhere to the Colorado Plumbing Code (3 CCR 720-1). A local plumbing permit may be required. e. Surface Activity: Activity or use on the surface of the ground over any part of the graywater treatment system must be restricted to that which shall allow the system to function as designed and which shall not contribute to compaction of the soil or to structural loading detrimental to the structural integrity or capability of the component to function as designed. During construction, equipment shall be kept off of the ground surface above the soil treatment area and out of the excavation to prevent compaction. If compaction occurs, the disturbed or compacted soil shall be re-evaluated and new percolation tests may be performed to the disturbed or compacted soil and the system redesigned if the parameters have changed. Additional Standards of Performance for Licensed Systems Contractors Page 41 of 43 Attachment A Graywater Treatment System Regulations The systems contractor shall be responsible for making arrangements for all inspections required for final approval of a graywater treatment system construction permit, unless the Department is notified and approves other arrangements. 3. 4. Additional Standards of Performance for Licensed Systems Cleaners a. Systems cleaners, when cleaning a tank or other primary treatment unit, shall remove the liquid, sludge and scum, leaving no more than 3 inches depth of wastewater in a non-backflowing tank or other primary treatment unit. In backflowing types of systems, cleaning shall be effective in reducing solids and scum to the point of a near-new system. A dosing or pumping chamber is not required to be pumped unless accumulation of sludge or scum interferes with the proper operation of the graywater treatment system. b. After pumping the tank or other primary treatment unit, a systems cleaner shall inspect the tees, baffles, aerator unit, pumps, alarms, filters, siphons and other internal or external components of the tank(s) being pumped and notify the property owner(s), in writing, if any of these components are damaged or missing. Any filters, or other devices which require routine maintenance and cleaning shall be inspected and cleaned by the systems cleaner, if necessary. c. Systems cleaners shall maintain their equipment to ensure that no spillage of wastewater will occur during transportation and so that their employees are not subjected to hazards. Systems cleaners are strongly encouraged to have proper personal protective equipment and immunizations for protection against diseases associated with wastewater. d. Systems cleaners shall dispose of waste materials removed from any graywater treatment system only at an approved Domestic Wastewater Treatment Plant, as defined by CWQCC Regulation No. 22, or other site approved by the CWQCD that is willing to accept the waste. Disposal must occur in a manner that does not create a hazard to public health, a nuisance, or a risk of pollution. Additional Standards of Performance for Licensed Systems Inspectors It is the responsibility of the systems inspector to report to the property owner(s) and the Department, in writing, the discovery of any prohibited component of a graywater treatment system, encroachment into setback distances specified in Section 6.29.100.B.1 of this Regulation, any evidence of a malfunctioning system or component, an inadequately sized graywater treatment system, or lack of adequate servicing of mechanical equipment related to manufactured units. Systems inspectors shall be qualified to perform graywater treatment system inspections for all graywater treatment system use permits and shall submit a written report of such inspections to the property owner(s) and the Department. D. Revocation of Licenses 1. A systems contractor, cleaner, or inspector license may be revoked for failure to comply with this Regulation, or for other good cause shown. Written notice of the violation(s) and/or other reasons for revocation of the license shall be delivered to the systems contractor, cleaner, or inspector by overnight mail, delivery requested the next business day, to the address specified on the license. The systems contractor, cleaner, or inspector shall have 10 business days after the date of delivery of the notice to provide a written response to the Department. Revocation of a license shall take place only after a hearing before the Board of County Commissioners. The systems contractor, cleaner, or inspector shall be given notice of the hearing in the same manner specified above, and may be represented at the hearing by counsel. Page 42 of 43 Attachment A 2. Graywater Treatment System Regulations Application for a new license for a systems contractor, cleaner, or inspector whose license has been revoked shall not be considered for one year after revocation. Page 43 of 43 AGENDA ITEM SUMMARY REGULAR MEETING DATE: February 14, 2018 AGENDA ITEM TITLE: Environmental Health Department Fees STAFF RESPONSIBLE: Kurt Dahl, Environmental Health Department ISSUE STATEMENT: Repeal and Replace existing Environmental Health (EH) fees with a new fee schedule to include a fee for graywater treatment system permits. No other fee changes are proposed. BACKGROUND: The existing EH fee schedule was last updated in December 2014. It does not include a fee for graywater permits. The Department is recommending adding a graywater permit fee at the current hourly rate. This will allow the Department flexibility to charge for actual time spent reviewing permits. Permit review times may vary between a “stand alone” graywater system permit and a graywater system permit that is submitted in conjunction with an onsite wastewater treatment system permit. This is due to a number of requirements that are the same between permits and reviewing one permit will lessen the time spent reviewing the other permit. LINK TO STRATEGIC PLAN: Flourishing Natural and Build Environment KEY DISCUSSION ITEMS: Graywater permit fees BUDGETARY IMPACT: Minimal and dependent on the number of graywater permits issued. RECOMMENDED BOCC ACTION: Open the public hearing and approve the Resolution on second reading. ATTACHMENTS: A) Resolution with new fee schedule RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS (“BOCC”) OF PITKIN COUNTY, COLORADO, REPEALING AND REENACTING ENVIRONMENTAL HEALTH DEPARTMENT FEES RESOLUTION NO. ______, 2018 RECITALS: 1. Pursuant to Section 2.8.3 (Actions) of the Pitkin County Home Rule Charter (“HRC”) official action by formal resolution shall be required for all actions of the Board not requiring ordinance power on matters of significant importance affecting citizens. 2. Pitkin County proposes to set fees for the Environmental Health Department, listed in attachment A, which are consistent and fair to the public and reflect the expense incurred in providing such services to the public and where applicable, follow Colorado State Statutes. 3. The policy of the Pitkin County Board of County Commissioners is that development shall pay, in full, the cost of development review in Pitkin County. The fees herein will not achieve that goal, but implementation of the new fee schedule will allow the County to move closer to the goal. 4. The Department is establishing an hourly fee for graywater system permits which are new permit types pursuant to the adopted 2018 Graywater Regulation and have not been previously established. 5. The BOCC considered the proposed fees at a first reading on January 24, 2018 and at a second reading and public hearing on ____________-. 6. The BOCC finds that it is in the best interests of the citizens of Pitkin County to approve this Resolution. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Pitkin County, Colorado that it hereby adopts Environmental Health Department Fees and authorizes the Chair to sign the Resolution and upon the satisfaction of the County Attorney as to form, execute any other associated documents necessary to complete this matter. 1 INTRODUCED AND FIRST READ ON THE _______ DAY OF_______________, 2018 AND SET FOR SECOND READING AND PUBLIC HEARING ON THE ______DAY OF _______________ 2018. NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE RESOLUTION PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE _______ DAY OF _____________, 2018. NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE RESOLUTION POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com ) ON THE ______DAY OF _______________ 2018. ADOPTED AFTER FINAL READING AND PUBLIC HEARING ON THE ______ DAY OF _______________ 2018. PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION, IN THE ASPEN TIMES WEEKLY ON THE _____ DAY OF ____________, 2018. POSTED BY TITLE AND SHORT SUMMARY ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com ) ON THE ______DAY OF_______________ 2018. ATTEST: BOARD OF COUNTY COMMISSIONERS By _________________________ Jeanette Jones Deputy County Clerk By: _____________________________ Patti Clapper, Chair Date: ______________ APPROVED AS TO FORM: MANAGER APPROVAL ___________________________ John Ely, County Attorney _________________________________ Jon Peacock, County Manager 2 Attachment A ENVIRONMENTAL HEALTH DEPARTMENT FEES 2018 Type of Fee Retail Food Establishments* -- Annual License Fee -- Retail Food Establishment Plan Review -- Application -- Plan Review -- Pre-Opening Inspection -- Retail Food Establishment Minor Plan Review -- Application -- Plan Review -- Pre-Opening Inspection -- Equipment Review -- Application -- Review -- HACCP (Hazard Analysis Critical Control Point) Plan -- New -- Review of existing process -- Site Review -- Special Events Involving Retail Food Establishments NOTE: These fees for Special Events apply only when a review is not associated with a Pitkin County Community Development referral fee. NOTE: All Special Event fees are billed to the Event Coordinator. -- Event Coordinator Application -- Vendor Application -- Inspection at event Child Care Facilities Child Care Facility Plan Review -- Application -- Plan Review -- Pre-Opening Inspection Child Care Regular Inspection (once per year) Onsite Wastewater Treatment System (OWTS) -- OWTS Construction Permit Application 3 --OWTS Tank Only Application --Appeal (Denial of a Permit) Fee Varies - as established by C.R.S. §25-4-1607, as amended from time to time. Not to exceed $580 $100 $240 $240 $100 $120 $120 Not to exceed $500 $100 Hourly rate** Hourly rate** not to exceed $100 Hourly rate** not to exceed $400 Hourly rate** Hourly rate** $100 $120 $120 $100*** Not to Exceed $1023 $1023**** $523**** $250 --Reactivation of Expired OWTS Construction Permit --Amendment of Permit --Use Permit (per permit)***** --Minor Repair --Renewable Permit --As-built Drawing Not Timely Received --System Contractor License --Test --Renewal --System Cleaner License --Test --Renewal --System Inspector License --Renewal --Owner/Builder System Certification & Test --Ancillary Services (including file searches) --Graywater Treatment System (New Construction, repair, modification, or any other service) Administrative --Photocopies $160 Hourly rate** $100 $0 (No Fee) $100 $185 $25 $25 $10 $25 $25 $10 $50 $25 $50 Hourly rate** Hourly rate** $0.25/side * Subject to the statutory exceptions for schools, charitable organizations and others under specific circumstances, as specified at CRS §25-4-1607(9), as amended from time to time. ** Hourly rate is currently $162/hour, but may be amended from time to time. *** Based on the current Intergovernmental Agreement with the Town of Snowmass Village, child care facilities within this jurisdiction will not be assessed a fee for routine inspections. **** There is an additional $175 administrative fee added on all Construction Permits issued in incorporated municipalities. ***** Where multiple OWTSs exist on a property each OWTS shall receive an individual permit and the fee will be charged for each permit. 4 AGENDA ITEM SUMMARY REGULAR MEETING DATE: February 14, 2018 AGENDA ITEM TITLE: An Emergency Ordinance of the Board of County Commissioners of Pitkin County of Pitkin County, Colorado Authorizing the Purchase of the Phillips Mobile Home Park STAFF RESPONSIBLE: John Ely, County Attorney ISSUE STATEMENT: This is the confirmatory public hearing of an ordinance adopted on January 24, 2018, authorizing the purchase of the Phillips Mobile Home Park from the Ellamae Phillips Company, RLLP. LINK TO STRATEGIC PLAN: Responsible and accountable stewardship of County assets by preserving existing work force housing. BUDGETARY IMPACT: Up to $6.5 million plus transaction costs with the potential of bringing funds back into the County’s employee housing program by sale or dedication of certain portions of the Property on the open market at fair market value. RECOMMENDED BOCC ACTION: Confirm Adopted Emergency Ordinance ATTACHMENT: Adopted Emergency Ordinance 1 AN EMERGENCY ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO AUTHORIZING THE PURCHASE OF THE PHILLIPS MOBILE HOME PARK ORDINANCE NO. _______2018 1. The Phillips Mobile Home Park, owned by the Ellamae Phillips Company, RLLP, is located at 3558 Lower River Road, Snowmass and contains approximately 65.6 acres (as surveyed) on both sides of the Roaring Fork River and State Highway 82 (the “Property”). 2. The Property is described as Lots 4 & 5 and part of Lot 3, Phillips Ranch. Parcel No. 2469313-00-002, Schedule No. R006666, more specifically described on the Improvement Survey Plat generated in October of 2017. 3. In the 1930’s after acquiring the Property from the original homesteader, Joseph Diemoz, Concer Phillips and his wife, Ellamae developed the Property as a mobile home park and after their deaths passed the Property into the care of their daughter, Helen Noyes. 4. Ms. Noyes and the family have continued to maintain the Property as affordable housing to this day without any County requirement to do so, but rather by offering space rent well below the mid-valley market price to the Property’s residents. 5. The family can no longer afford the costs involved in continuing to operate and maintain the Property in its current status and has determined to sell the Property. 6. Sale of the property under a typical scenario would entail eviction of the residents, grading of the ground surface, revegetation and listing of the property. The family does not want to precipitate any eviction of its current residents. 7. If the Ellamae Phillips Company were to close the property, the existing inventory of affordable housing could not accommodate the number of current residents who would be displaced, and the great majority would be faced with either leaving the Roaring Fork Valley or severe financial hardship in finding alternative housing at much greater cost. 8. The Property is desirable having in addition to affordable housing, three large irrigated fields that benefit from significant water rights and access to both sides of the Roaring Fork River which meanders through the Property for ¾ of a mile. 9. The County intends to incorporate the inventory of affordable housing units on the Property into its employee housing program and reserves the ability to sell on the open market, those portions of the Property that are not integrated into affordable housing and/or dedicate those portions to other County programs such as Open Space and Trails or Healthy Rivers. 10. The Chair or Chair’s designee is authorized to execute the Contract for the purchase of the Phillips Mobile Home Park on behalf of the County and any other documents necessary to ORDINANCE ____-2018 PAGE 2 complete the transaction subject to the recommendation of approval by staff and approval as to form by the County Attorney. 11. The BOCC finds that adoption of this ordinance is necessary for the immediate preservation of the public health, safety and welfare of the citizens of Pitkin County and therefore declares this ordinance and legislation to be effective immediately pursuant to Pitkin County Home Rule Charter Section 2.8.2. NOW, THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Pitkin County, Colorado, that the Chair or Chair’s designee is authorized to execute a contract and all other necessary documents, subject to approval by the County Attorney, for the purchase of the Phillips Mobile Home Park property. The purchase contract shall provide at a minimum that:   The purchase price shall be up to $6.5 million for approximately 65.6 acres of land on both sides of the Roaring Fork River, not including transaction costs The purchase shall be accomplished with the utilization of funds from the County’s Employee Housing Impact Fee BE IT FURTHER ORDAINED that:     The County reserves the ability to sell portions of the Property on the open market that are not related to or integrated with the affordable housing purpose of this acquisition and reimburse the County’s employee housing program the fair market value of those portions of the Property sold. Alternatively, or in addition to sale as described above, the County will reserve the ability to dedicate those portions of the Property not necessary for affordable housing to other County programs such as Open Space and Trails or Healthy Rivers and likewise reimburse the County’s employee housing program. In the event the County sells or leases any part of the Property for any purpose other than the aforementioned use for affordable housing or dedication of any part of the Property not necessary for affordable housing to the Open Space and Trails or Healthy Rivers and Streams programs (or any use or activity that is directly related to support of affordable housing or the Open Space and Trails or Healthy Rivers and Streams programs), at any time within five (5) years from date of Closing, the County agrees to remit to Seller 50% of the net proceeds of such sale or lease. Previous Ordinance #05-2017 concerning the purchase of the Property is repealed. INTRODUCED AND ADOPTED AT THE REGULAR MEETING ON THE 24TH DAY OF JANUARY 2018 AND SET FOR CONFIRMATORY READING AND PUBLIC HEARING ON THE 14TH DAY OF FEBRUARY 2018. NOTICE OF PUBLIC HEARING PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE _____ DAY OF ______________ 2018. CONFIRMED AT PUBLIC HEARING ON THE 14TH DAY OF FEBRUARY 2018. ORDINANCE ____-2018 PAGE 3 PUBLISHED AFTER CONFIRMATORY READING IN THE ASPEN TIMES WEEKLY ON THE _____ DAY OF ______________ 2018. THIS ORDINANCE IS EFFECTIVE ON JANUARY 24, 2018. ATTEST: BOARD OF COUNTY COMMISSIONERS By _________________________ Jeanette Jones Deputy County Clerk By: _____________________________ Patti Clapper, Chair Date: ______________ APPROVED AS TO FORM: MANAGER APPROVAL ___________________________ John Ely, County Attorney _________________________________ Jon Peacock, County Manager