MAY 23 2006 MINUTESCITY OF VIRGINIA BEACH
"COMMUNITY FOR A LIFETIME"
CITY COUNCIL
MAYOR MEYERA E. OBERNDORF, At -Large
VICE MAYOR LOUIS R. JONES, Bayside - District 4
HARRYE. DIEZEL Kempsville - District 2
ROBERT M. DYER, Centerville - District 1
REBA S. McCLANAN, Rose Hall - District 3
RICHARD A. MADDOX, Beach - District 6
JIM REEVE, Princess Anne - District 7
PETER W. SCHMIDT, At -Large
RONA. VILLANUEVA, At -Large
ROSEMARY WILSON, At -Large
JAMES L. WOOD, Lynnhaven -District 5
CITY COUNCIL AGENDA
CITYMANAGER - JAMES K. SPORE
CITYATTORNEY- LESLIEL. LILLEY
CiTY CLERK - RUTH HODGES SMITH, MMC
I
II.
23 MAY 2006
CITY MANAGER'S BRIEFINGS
CITY HALL BUILDING
2401 COURTHOUSE DRIVE
VIRGINIA BEACH, VIRGINIA 23456-8005
PHONE: (757) 385-4303
FAX (75 7) 385-5669
E-MAIL: Ctycncl@vbgov.com
- Conference Room -
A. TOWING ADVISORY BOARD Recommendations
Barry Shockley, Administrative Services Manager, Management Services
B. SEGWAY PILOT PROGRAM
Michael Eason, Resort Programs Administrator, Convention and Visitors Bureau
CITY COUNCIL COMMENTS
REVIEW OF AGENDA ITEMS
IV. INFORMAL SESSION
A. CALL TO ORDER — Mayor Meyera E. Oberndorf
B. ROLL CALL OF CITY COUNCIL
C. RECESS TO CLOSED SESSION
- Conference Room -
2:00 PM
3:30 PM
V. FORMAL SESSION - Council Chamber - 6:00 PM
A. CALL TO ORDER — Mayor Meyera E. Oberndorf
B. INVOCATION: Reverend Thomas Britton
Retired Pastor
C. PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA
D. ELECTRONIC ROLL CALL OF CITY COUNCIL
E. CERTIFICATION OF CLOSED SESSION
F. MINUTES
1. INFORMAL and FORMAL SESSIONS
G. AGENDA FOR FORMAL SESSION
H. PUBLIC HEARING
1. REAL and PERSONAL PROPERTY TAX — Proposed Exemptions
I. PUBLIC COMMENT
1. SHORE DRIVE Safety Improvements
May 9, 2006
J
M
CONSENT AGENDA
RESOLUTIONS/ORDINANCES
1. Resolutions re legislation designating certain property as TAX EXEMPT on state and local
real and personal property:
a. Recommended for APPROVAL
1. Goodwill Industries of Hampton Roads
2. The Nature Conservancy
b. Recommended for DENIAL
1. Commonwealth Support Systems, Inc.
2. Contemporary Art Center of Virginia
3. District 8 Little League
4. Dolphin Scholarship Foundation
5. Equi -Kids Therapeutic Riding Program
6. Hampton Roads Soccer Council
7. Kid's Quest Child Development Center
8. Northwestern Human Services of Pennsylvania, Inc.
9. Sara's Mentoring Center, Inc.
10. Spina Bifida Association of Tidewater
11. St. Gregory the Great Catholic Church
12. Summer Shakes, Inc.
13. Virginia State Crime Clinic
14. Young Musicians of Virginia, Inc.
2. Resolution to EXPRESS SUPPORT for Old Dominion University (ODU) opening a "four-
year branch campus" at the Virginia Beach Higher Education Center.
3. Ordinances to AMEND the City Code:
a. AMEND §7-59.2 re riding on the beach or boardwalk
b. AMEND §§21-422, 21-426, 21-429 and ADD § 21-422.1 re the use of
nonconsensual towing from private property to enforce parking restrictions
C. AMEND §21-426 re maximum basic towing fee for nonconsensual tows
4. Ordinance to GRANT a franchise to Cox Communications Hampton Roads, LLC to
construct, operate and maintain a cable system.
5. Ordinance to GRANT franchise agreements for Open Air Cafes in the Resort Area
a. 21 Fun, LLC t/a Sharx
b. TC JR, Inc. t/a T-Caspers Bar and Grill
C. Shrey, Inc. t/a Tropical Smoothie
6. Ordinance to AUTHORIZE and DIRECT the City Manager to execute a Deed of Release
and Exchange with John Baum re an Agricultural Lands Preservation Easement (ARP).
L.
M.
7. Ordinance to AUTHORIZE the City Manager to execute a Management and Operating
Agreement with the Association of the Preservation of Virginia Antiquities (APVA) re
ownership of the Lynnhaven House at 4405 Wishart Road.
DISTRICT 4 — BAYSIDE
Ordinance to AUTHORIZE acquisition of property for right-of-way, temporary and
permanent easements re increasing the capacity for the First Colonial Road/Virginia Beach
Boulevard intersection.
9. Ordinance to AUTHORIZE temporary encroachments by Heritage Park, LLC, into the
City's right-of-way at Heritage Park Drive and Sandbridge Road re a subdivision sign,
irrigation line and electrical line.
DISTRICT 7 — PRINCESS ANNE
10. Ordinance to TRANSFER $395,340 within the Police Department's FY 2005-06 Operating
Budget to comply with Department of Justice (DOJ) Consent Decree re recruiting tests.
PLANNING/NO ACTION
1. Application of Bobby Daniels, Faith for Deliverance Outreach Center for a
Conditional Use Permit for a church at 649 Newtown Road, Unit 103.
DISTRICT 2 — KEMPSVILLE
RECOMMENDATION: REFER TO PLANNING COMMISSION
PLANNING
1. Applications for the discontinuance, abandonment and closure at Jersey Avenue and
Virginia Beach Boulevard re reservation for future development.
DISTRICT 2 — KEMPSVILLE
a. Cornelius F. and Antonina Boynton
b. Lope and Mercy Pile
RECOMMENDATION:
2. Variance re lot size to §4.4(b) of the Subdivision Ordinance that requires all newly
created lots meet the requirement of the City Zoning Ordinance (CZO) for HERBERT
R. SNELLING, JR. to develop two single-family dwellings at Old Forge Road and
Woodlake Road.
DISTRICT 3 — ROSE HALL
RECOMMENDATION:
3. Application of BURTON and NANCY C. JUDA for a Conditional Use Permit re a
residential kennel for eight (8) dogs at 205 Coventry Road.
DISTRICT 2 — KEMPSVILLE
DEFERRED: MAY 9, 2006
RECOMMENDATION: APPROVAL
4. Application of COURTHOUSE COMMUNITY UNITED METHODIST CHURCH
for a Conditional Use Permit re church expansion (Family Life Center) at 2708 Princess
Anne Road.
DISTRICT 7 — PRINCESS ANNE
RECOMMENDATION: APPROVAL
5. Application of UPTON 1, L.L.C. for a Conditional Use Permit to develop a Child Care
Education Center at Upton Drive and Old Dam Neck Road.
DISTRICT 7 — PRINCESS ANNE
RECOMMENDATION: APPROVAL
6. Application of CARUANA CONSTRUCTION, INC. for a Change of Zoning District
Classification from AG -2 Agricultural District to Conditional R-20 Residential District at
Seaboard Road and Princess Anne Road to develop single-family homes. The
Comprehensive Plan designates this site as being part of the Transition Area.
DISTRICT 7 — PRINCESS ANNE
RECOMMENDATION:
APPROVAL
7. Application of DANNY K. MARTIN for a Change of Zoning District Classification
from R -5D Residential Duplex District to Conditional I-1 Light Industrial District at 5840
Burton Station Road to develop an office -warehouse facility.
DISTRICT 4 — BAYSIDE
STAFF RECOMMENDS:
PLANNING COMMISSION RECOMMENDS:
DENIAL
APPROVAL
Application of DELAWARE CORPORATION for a Change of Zoning District
Classification from R-20 Residential District to Conditional I-2 Heavy Industrial District
on London Bridge Road and Harpers Road to develop the site for office -warehouse and
storage. The Comprehensive Plan designates this site as being within Strategic Growth
Area 10, South Oceana Area.
DISTRICT 7 — PRINCESS ANNE
RECOMMENDATION: APPROVAL
N
0
F&
A
9. Application of Lawson Hall Associates, L.L.C. for a Change of Zoning District
Classification from R-10 Residential District to Conditional A-12 Apartment District with a
PD -112 Overlay at 5525 Lawson Hall Road to develop age -restricted multi -family residential
units. The Comprehensive Plan designates this site as being within the Primary Residential
Area.
DISTRICT 4 — BAYSIDE
RECOMMENDATION:
APPOINTMENTS
APPROVAL
ARTS AND HUMANITIES COMMISSION
BIKEWAYS AND TRAILS ADVISORY COMMITTEE
GREEN RIBBON COMMITTEE
HAMPTON ROADS PLANNING DISTRICT COMMISSION — HRPDC
INVESTMENT PARTNERSHIP ADVISORY COMMITTEE — PPEA
MEAL TAX TASK FORCE
MINORITY BUSINESS COUNCIL
OCEANA LAND USE CONFORMITY COMMITTEE
PARKS AND RECREATION COMMISSION
SOCIAL SERVICES BOARD
SPORTS AUTHORITY OF HAMPTON ROADS
TIDEWATER COMMUNITY COLLEGE BOARD
TIDEWATER REGIONAL GROUP HOME COMMISSION
TOWING ADVISORY BOARD
TRANSPORTATION DISTRICT COMMISSION OF HAMPTON ROADS — TTDC
UNFINISHED BUSINESS
NEW BUSINESS
ABSTRACT OF VOTES — May 2, 2006
COUNCILMANIC and SCHOOL BOARD Election
ADJOURNMENT
CITY COUNCIL SESSIONS RESCHEDULED
July 4, 2006
July 11, 2006
July 18, 2006
July 19 - August 7, 2006
August 8, 2006
ALL SESSIONS CANCELED
Briefing, Informal and Formal Sessions
Briefing, Informal and Formal Sessions
City Council Vacation
Resume Regular Schedule
If you are physically disabled or visually impaired
and need assistance at this meeting,
please call the CITY CLERK'S OFFICE at 385-4303
Hearing impaired, call: Virginia Relay Center at
1-800-828-1120
Agenda 05/23/2006mb
www.vbgov.com
-1 -
MINUTES
VIRGINIA BEACH CITY COUNCIL
Virginia Beach, Virginia
23 May 2006
Mayor Meyera E. Oberndorf called to order the CITY MANAGER'S BRIEFING re the Towing
Advisory Board's recommendations in the City Council Conference Room, City Hall, on Tuesday, May
23, 2006, at 2: 00 P.M.
Council Members Present:
Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba
S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Ron
A. Villanueva and Rosemary Wilson
Council Members Absent:
Jim Reeve
[Entered: 2:26 P.M.]
James L. Wood [Economic Development Conference
(Shopping Centers) in Las Vegas]
Peter W. Schmidt [Entered: 3:05 P.M., he was attending
Meeting out -of -city]
-2 -
CITY MANAGER'S BRIEFING
TOWING ADVISORY BOARD
2:00 P.M.
ITEM # 55212
Barry Shockley, Administrative Services Manager — Management Services advised a Resolution referred
to the Towing Advisory Board an Ordinance which AMENDED City Code Sections 21-422, 426, 429
and ADDED Section 21-422.1 re use of tow truck services to enforce parking restrictions on private
property was adopted by City Council on April 4, 2006. Mr. Shockley referenced the purpose of this
TOWING AD VISOR Y BRIEFING is to provide feedback from the Towing Advisory Board, present their
recommendations and the comments of City staff. The Towing Advisory Board met on April 18, 2006
The Towing Advisory Board addresses private tow concerns: non-consensual — Illegally Parked and
private parking lots.
PROPOSED ORDINANCE CHANGES BY CITY ATTORNEY'S OFFICE
0 Towing Comment/Survey Form
0 Better Signage
0 Requirement for Tow Companies to provide change for Tows
0 Predatory cruising by towing operators
0 Police Department would require tow companies to accept credit card
payments for tows from public property
The Towing Comment/Survey form was instituted in May 2004. One hundred thirty-three (133) surveys
have been returned. The Towing Advisory Board believes the Survey form was an important tool. The
City Resort Parking Program signs should reflect the 385-3111 Telephone Number to advise the location
of the vehicle towed. Relative the requirement for providing change, due to a large volume of business
and the proper change not being available, the Board suggested Tow Operators (not having the correct
change) make a note on the receipt and send a check within seven (7) days to the owner of the towed
vehicle.
There was considerable discussion by the Board concerning the predatory cruising by tow operators. The
Board recommended:
Develop permit program
Lots would meet all requirements for permits
Complaints could be monitored
Program would need to be cost neutral.
TOWING ADVISORY BOARD RECOMMENDATIONS
Hire a full time position that will be assigned to whatever department the City deems
appropriate to monitor lots, deal with towing complaints
Establish a permit program for property owners for those businesses not wanting an
agent for the property
Any criminal complaints would be given to the Police Department for investigation
and City Attorney's office for prosecution
Rate increase from $85 to $125
Cost of conducting business (salaries, insurance, fuel, equipment, taxes,
et cetera)
Fall of 2005 — calculated the cost per tow at $112
Met the goals established
May 23, 2006
-3 -
CITY MANAGER'S BRIEFING
TOWING ADVISORY BOARD
ITEM # 55212 (Continued)
The staff recommended a parking lot permit program not be established and outlined the number of
participants required.•
PARKING LOT PERMIT PROGRAM
Rate
Number o Partici ants required
Annual Revenue
$ 50
1208
$60,400
$100
604
$60,400
$150
403
$ 60,450
$ 175
345
$ 60,375
$ 200
302
$ 60,400
Mr. Shockley referenced the rate increases of the neighboring cities:
city
Basic Tow rate day/night
Chesapeake
$ 85/ $95 defaults to State Code
Hampton
$ 85/$95 for police
$ 85/$95 or illegally parked de aults to state code
Newport News
$ 120, $140, $285 for illegally arked tows ( cost varies with weight)
Norfolk
$ 105
Portsmouth
$ 50/$55 for Police Directed tows; $85/$95 for illegally parked (defaults to
state code). Police Directed tows $105 effective July 1, 2006
Suffolk
$ 85/$95 (defaults to state code)
Virginia Beach
$85
Effective July First, the City of Virginia Beach tow rates will be lower than neighboring cities. The City
Staff believes an increase of some amount is warranted. The ordinance leaves this amount of the increase
blank so as to permit City Council to determine the appropriate amount of the increase.
Relative the permit program, Associate City Attorney Kathy Rountree advised the City Attorney's office is
reviewing the authority of the City to add an administrative fee to the tow.
Associate City Attorney Rod Ingram advised the towing businesses are required to report their revenue to
the Commissioner of Revenue in order to calculate their business licenses. All tows must be reported to
the Police within thirty (30) minutes; therefore, the City will have its own record of the number of tows
per company.
Proposed Ordinance
Towing Advisory Board
City staff
Towing CommentlSurvey Form
SuP.Ported
Adopt, as proposed
Better signage
Supported (especially on Resort
Parking Permit signs)
Adopt, as proposed
Change requirement for tow
operators
Suggested modification for check
to be mailed in seven 7 days
Adopt, as proposed
Predatory Cruising
Parking Lot Permitprogram
Adopt, as proposed
Rate increases
Recommended rate increase
Supports a Rate Increase
May 23, 2006
CITY MANAGER'S BRIEFING
TOWING ADVISORY BOARD
ITEM # 55212 (Continued)
Councilman Maddox suggested this item be DEFERRED until the City Council Session of June 27, 2006
and he will expend the remainder of his term working out the details re to residential and resort towing.
There is a genuine issue relative individuals consuming alcoholic beverages and then choosing not to
move their car (sometimes resulting in a tow) and taking a cab or having someone else drive them home.
Councilman Diezel referenced the correspondence of Attorney Richard H. Matthews, Pender and
Coward, dated May 22, 2006 Attorney Richard Matthews represented CIP Towing Group, requesting a
rate increase o $125.00 (state rate) and expressing concerns re the adoption of City Code § 21-422.1
When the City Council considers this matter on June 27, 2006, the City Attorney requested the issues be
separated into three (3) categories: basic, rate increase and special issues (predatory towing, alcohol at
the beach, towing at 2:30 P.M.); thereby one category would not further delay the process.
May 23, 2006
-5 -
CITY MANAGER'S BRIEFING
SEGWAYPILOT PROGRAM
2:47 P.M.
ITEM # 55213
Michael Eason, Resort Programs Administrator — Convention and Visitors Bureau, advised on October
24, 2004, City Council adopted an ordinance which revised City Code § 7-59.2 to expand the d definition
of various types of motorized vehicles that are prohibited on the beach and the boardwalk. The use of
Electric Personal Assistive Mobility Devices (EPAMDs) is prohibited. At the Resort Advisory
Commission (RAC) Transportation, Pedestrian and Parking Subcommittee (TPPC) meeting on March
29, 2006, a local Segway dealer requested a change to the City Code to implement a pilot program
offering guided tours on the boardwalk, between the hours of 6:00 A.M. and 12 NOON, utilizing
EPAMDs. During the April 6, 2006, RAC meeting, RAC voted to support guided tours on the boardwalk,
between the hours of 6:00 A.M. and 12 NOON, utilizing EPAMDs and forward the concept to City
Council for consideration. The Segway Human Transporter (HT) is the first of its kind. The Segway is a
se f balancing personal transportation device that is designed to go anywhere you go. The Segway HT
requires no special skills and is rechargeable from any wall outlet. It is an Electric Personal Assistive
Mobility Device, which means it is a self -balancing two non -tandem wheeled device that is designed to
transport only one person and powered by an electric propulsion system that limits the device's maximum
speed to fifteen (I5) miles per hour or less. Mr. Eason distributed a list of Segway Franchise Guidelines
Mayor Oberndorf referenced the detailed correspondence of Chief A.M. Jacocks, in opposition. Various
public safety issues and concerns related to the amendment must be considered.
Deputy Chief Mullins advised Segway is utilized all over the world. Unfortunately, Police cannot support
the deployment of the Segway at the Oceanfront as clearly outlined in the correspondence of Chief
Jacocks. These devices would significantly increase the risk factors associated with personal injury and
injury to pedestrians. Segway provides the following warning on its website and their manual concerning
operation of the device `RISK OF DEATH OR SEROUS INJURY". Chief Mullins' officers must
mediate the disturbances on the boardwalk. The equity of enforcement is at risk with this exception.
Deputy Chief Mullins advised at the present time these Segways can be ridden outside the Resort area.
Associate City Attorney Rod Ingram advised one of the requirements of the Permit could be Segway has
insurance and would indemnify the City for any potential accident.
Susan Elwell, owner - Segway of Hampton Roads, advised tours are currently conducted at the First
Landing State Park. The tours are limited to six (6) new users. Ms Elwell referenced the Safe Use
Workshop, approximately 30-mimute duration, which is conducted prior to starting the tour. The tours
last approximately one hour. Hopefully, the tour will commence at The Hilton. Data supports the
Segway as being one of the best experiences of tourists. There are eighty-six (86) guided Segway tours
throughout the United States. Permission is given to conduct tours in State Parks. The Segway's are
agile, non -intrusive and interface very well with it's rider and the environment. The Segway has "Ultra -
Brakes'; a technology that applies reverse torque to the wheels stopping faster than skates, bicycles,
wheelchairs or people running at the same speeds. The Segway HT occupies little more space than your
own body. It is as narrow as your shoulder bones and experiences no lateral shift while ridden (Electric
Personal Assistive Mobility Device). Ms. Elwell advised the Segways will not be utilized beyond 6 miles
per hour.
May 23, 2006
CITY MANAGER'S BRIEFING
SEGWAY PILOT PROGRAM
ITEM # 55213 (Continued)
Mark A. Landers, General Manager — Segway of Hampton Roads, advised the Segway is not a motorized
vehicle. The Segway is an Electric Personal Assistive Mobility Device.
Wheels are not in tandem
Minimal Horse Power (2 HP)
Maximum speed 12.5 mph
Designed for only one (1) rider
Electric propulsion system
Sae and Congestion
*Source: United States Department of Transportation publication October 2004: "Characteristics of
Emerging Road Users and Their Safety':
Mr. Landers advised San Francisco operates one of the most successful Segway Tour operations, but not
on the Boardwalk. Information relative the reasons for not allowing the Segway on the Boardwalk will
be provided.
May 23, 2006
Mean Braking Distance
Man Deceleration Rate
Mean Max Sweep Width
measured in meters
(meters/sect)
(meters /2)
lower is better
(higher is better
lower is better
Inline Skates
(boardwalk)
8.4 (highest)
1.5
1,3
Sqgway HT
2.7
3.1
1.0
Bicycle
(bikepath)
4.8
2.3
1.0
*Source: United States Department of Transportation publication October 2004: "Characteristics of
Emerging Road Users and Their Safety':
Mr. Landers advised San Francisco operates one of the most successful Segway Tour operations, but not
on the Boardwalk. Information relative the reasons for not allowing the Segway on the Boardwalk will
be provided.
May 23, 2006
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CITY COUNCIL COMMENTS
3:21 P.M.
ITEM # 55214
Mayor Oberndorf referenced attending a legislative meeting with the Virginia Municipal League on
Friday, May 19, 2006, Williamsburg, Virginia. The briefings encompassed energy and the fact there is
still not a State Operating Budget. A number of cities are concerned relative the salaries of Social
Services and Mental Health. Road maintenance funds, which historically encompass approximately $18 -
MILLION a year for the City of Virginia Beach, was also discussed. The Secretary of Transportation
advised Virginia Beach among other cities will only receive $8 MILLION. These funds will continue to
be "cut back ".
Governor Timothy M. Kaine did attend the meeting, which at one time was a Joint Session with VACO.
Governor Kaine explained the surplus in the Budget cannot be responsible for financing any program of
long duration.
ITEM # 55215
Mayor Oberndorf referenced attending the Grand Opening of the display re the blue crabs at the
Virginia Aquarium and Marine Science Center on Saturday, May 20, 2006. The tank is beautiful with
small children being able to climb under the display, giving the impression of being in the midst of the
fish and crabs. A pier has been constructed and when one is under the pier, it appears the person is
underwater.
This Exhibit was financed by funds raised by The Virginia Aquarium and Marine Science Center
Foundation.
May 23, 2006
A GENDA RE VIEW SESSION
3:27P.M
ITEM # 55216
2. Resolution to EXPRESS SUPPORT for Old Dominion University (ODU)
opening a 'four-year branch campus " at the Virginia Beach Higher
Education Center.
Councilman Schmidt referenced a typographical error on Line 22: "subsiding" should be
"subsidizing':
ITEM # 55217
8. Ordinance to AUTHORIZE acquisition ofproperty for right-of-way, temporary and
permanent easements re increasing the capacity for the First Colonial Road/
Virginia Beach Boulevard intersection.
Council Lady Wilson expressed concern as there are large pieces of land involved and referenced one
parcel by First Colonial. She did not understand the usage of all the parcels.
E. Dean Block, Director of Public Works, advised one of the parcels of land is for a Stormwater
Management facility. It made more sense to build the pond closer to the Interstate. Mr. Block advised the
First Colonial Road/ Virginia Beach Boulevard Intersection Improvements Project (CIP 2-072) is
programmed in the FY 2000/01 Capital Improvement Program. The project will increase the capacity of
the intersection with the addition of turn lanes and signalization improvement. In addition, the project
will provide for enhanced aesthetics and existing utility betterments.
ITEM # 55218
BY CONSENSUS, the following items shall compose the CONSENT AGENDA:
K RESOLUTIONS/ORDINANCES
Resolutions re legislation designating certain property as TAX EXEMPT on state
and local real and personal property.•
a. Recommended for APPROVAL
Goodwill Industries of Hampton Roads
The Nature Conservancy
May 23, 2006
A GENDA RE VIEW SESSION
ITEM # 55218 (Continued)
b. Recommended for DENIAL
Commonwealth Support Systems, Inc.
Contemporary Art Center of Virginia
District 8 Little League
Dolphin Scholarship Foundation
Equi -Kids Therapeutic Riding Program
Hampton Roads Soccer Council
Kid's Quest Child Development Center
Northwestern Human Services of Pennsylvania, Inc.
Sara's Mentoring Center, Inc.
Spina Bifida Association of Tidewater
St. Gregory the Great Catholic Church
Summer Shakes, Inc.
Virginia State Crime Clinic
Young Musicians of Virginia, Inc.
2. Resolution to EXPRESS SUPPORT for Old Dominion University (ODU) opening a
'four-year branch campus " at the Virginia Beach Higher Education Center.
3. Ordinances to AMEND the City Code:
b. AMEND §§21-422, 21-426, 21-429 and ADD § 21-422.1 re the use of
nonconsensual towing from private property to enforce parking
restrictions
c. AMEND §21-426 re maximum basic towing fee for nonconsensual tows
4. Ordinance to GRANT a franchise to Cox Communications Hampton Roads, LLC
to construct, operate and maintain a cable system.
5. Ordinance to GRANT franchise agreements for Open Air Cafes in the Resort Area
a. 21 Fun, LLC t/a Sharx
b. TC JR, Inc. t/a T-Caspers Bar and Grill
c. Shrey, Inc. t/a Tropical Smoothie
6. Ordinance to AUTHORIZE and DIRECT the City Manager to execute a Deed of
Release and Exchange with John Baum re an Agricultural Lands Preservation
Easement (ARP).
7. Ordinance to AUTHORIZE the City Manager to execute a Management and
Operating Agreement with the Association of the Preservation of Virginia Antiquities
(APVA) re ownership of the Lynnhaven House at 4405 Wishart Road,
DISTRICT 4 — BAYSIDE
8. Ordinance to AUTHORIZE acquisition of property for right-of-way, temporary and
permanent easements re increasing the capacity for the First Colonial Road✓
Virginia Beach Boulevard intersection.
May 23, 2006
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A GENDA REVIEW SSSS ION
ITEM # 55218 (Continued)
9. Ordinance to AUTHORIZE temporary encroachments by Heritage Park, LLC, into
the City's right-of-way at Heritage Park Drive and Sandbridge Road re a
subdivision sign, irrigation line and electrical line. DISTRICT 7 — PRINCESS ANNE
10. Ordinance to TRANSFER $395,340 within the Police Department's FY 2005-06
Operating Budget to comply with Department of Justice (DOJ) Consent Decree re
recruiting tests.
Items 3b and c will be DEFERRED, BY CONSENT, until the City Council Session of June 27, 2006.
Council Lady McClanan will vote a VERBAL NAY on Item K.10 (DOJ Consent Decree)
May 23, 2006
-11-
A GENDA REVIEW SESION
ITEM # 55219
Application of DANNY K. MAR TINfor a Change ofZoniniz District
Classi ication from R -5D Residential Duplex District to Conditional I-1 Light
Industrial District at 5840 Burton Station Road to develop an office -warehouse
facility. (DISTRICT 4 — BAYSIDE)
This item WILL Z be discussed during the Formal Session. Vice Mayor Jones requested a Briefing re the
Burton Station real estate acquisition.
ITEM # 55220
BY CONSENSUS, the following items shall compose the PLANNING BY CONSENT AGENDA:
L. PLANNING —NO ACTION
1. Application of Bobby Daniels, Faith for Deliverance Outreach
Center for a Conditional Use Permit for a church at 649 Newtown
Road, Unit 103. DISTRICT 2 — KEMPSVILLE
M. PLANNING
1. Applications for the discontinuance, abandonment and closure at Jerrsey Avenue
and Virginia Beach Boulevard re reservation for future development.
DISTRICT 2 — KEMPSVILLE
a. Cornelius F. and Antonina Boynton
b. Lope and Mercy Pile
2. Variance re lot size to §4.4(b) of the Subdivision Ordinance that requires all newly
created lots meet the requirement of the City Zoning Ordinance (CZO) for
HERBERT R. SNELLING, JR. to develop two single-family dwellings at Old
Forge Road and Woodlake Road.
DISTRICT 3 — ROSE HALL
3. Application of BURTON and NANCY C. JUDA for a Conditional Use Permit re a
residential kennel for eight (8) dogs at 205 Coventry Road.
DISTRICT 2 — KEMPSVILLE
4. Application of COURTHOUSE COMMUNITY UNITED METHODIST
CHURCH for a Conditional Use Permit re church expansion (Family Life
Center) at 2708 Princess Anne Road.
DISTRICT 7 — PRINCESS ANNE
May 23, 2006
-12-
A GENDA REVIEW SESION
ITEM # 55220 (Continued)
5. Application of UPTON], L.L.C. for a Conditional Use Permit to develop a Child
Care Education Center at Upton Drive and Old Dam Neck Road.
DISTRICT 7 - PRINCESS ANNE
6. Application of CARUANA CONSTRUCTION, INC. for a Chanjze ofZoning
District Classification from AG -2 Agricultural District to Conditional R-20
Residential District at Seaboard Road and Princess Anne Road to develop single-
family homes. The Comprehensive Plan designates this site as being part of the
Transition Area.
DISTRICT 7 - PRINCESS ANNE
8. Application of DELAWARE CORPORATION for a Chanzof Zonin-a District
Classification from R-20 Residential District to Conditional I-2 Heavy Industrial
District on London Bridge Road and Harpers Road to develop the site for office -
warehouse and storage. The Comprehensive Plan designates this site as being within
Strategic Growth Area 10, South Oceana Area.
DISTRICT 7 - PRINCESS ANNE
9. Application of Lawson Hall Associates, L.L. C. for a Change of Zoning District
Classification from R-10 Residential District to Conditional A-12 Apartment District
with a PD -H2 Overlay at 5525 Lawson Hall Road to develop age -restricted multi-
family residential units. The Comprehensive Plan designates this site as being within
the Primary Residential Area.
DISTRICT 4 - BAYSIDE
Item L.1. (BOBBY DANIELS, FAITH FOR DELIVERANCE OUTREACH CENTER) REFER BACK
TO THE PLANNING COMMISSION, BY CONSENT.
Item M.3. (JUDA) - Mayor Oberndorf will ABSTAIN as she is the "mother" of three (3) dogs and lives
in the neighborhood. Council Ladies McClanan and Wilson will l vote a VERBAL NAY.
Item M.9. (LAWSON), Vice Mayor Jones will ABSTAIN.
ITEM # 55221
Councilman Reeve distributed:
Resolution to REFER to the Planning Commission an Ordinance to
AMEND the Comprehensive Plan by revising the Princess Anne
Corridor Plan to incorporate provisions pertaining to certain
commercial uses in sub -area 1
Councilman Reeve requested this be ADDED under NEW BUSINESS.
May 23, 2006
-13 -
ITEM # 55222
Mayor Meyer E. Oberndorf entertained a motion to permit City Council to conduct its CLOSED
SESSION, pursuant to Section 2.1-3711(A), Code of Virginia, as amended, for the following purpose:
PERSONNEL MATTERS: Discussion, consideration or interviews of prospective
candidates for employment, assignment, appointment, promotion, performance, demotion,
salaries, disciplining or resignation of specific public officers, appointees or employees
pursuant to Section 2.2-3711 (A)(1)
To Wit: Appointments: Boards, Commissions, Committees,
Authorities and/or Agencies
PUBLICLY -HELD PROPERTY: Discussion or consideration of the condition, acquisition,
or use of real propertyfor public purpose, or of the disposition of publicly -held property, or
of plans for the future of an institution which could affect the value of property owned or
desirable for ownership by such institution pursuant to Section 2.2-3711(A)(3).
Acquisition/Disposition of Property - Bayside District
LEGAL MATTERS: Consultation with legal counsel or briefings by staff members,
consultants, or attorneys pertaining to actual or probable litigation, or other specific legal
matters requiring the provision of legal advice by counsel pursuant to Section 2.2-3711
(A)(7)
MT. e
Upon motion by Councilman Dyer, seconded by Council Lady Wilson, City Council voted to proceed
into CLOSED SESSION (3:55 P.M.).
Voting: 10-0
Council Members Voting Aye:
Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan,
Richard A. Maddox. Mayor Meyera E. Oberndorf, Jim Reeve, Peter W. Schmidt, Ron
A. Villanueva and Rosemary Wilson
Council Members Voting Nay:
None
Council Members Absent:
James L. Wood
(Recess: 3:55 P.M. — 4:00 P.M.)
(Closed Session: 4:00 P.M. - 5:30 P.M.)
May 23, 2006
-14 -
FORMAL SESSION
VIRGINIA BEACH CITY COUNCIL
May 23, 2006
6:00 P.M.
Mayor Meyer E. Oberndorf called to order the FORMAL SESSION of the VIRGINIA BEACH CITY
COUNCIL in the Council Chamber, City Hall Building, on Tuesday, May 23, 2006, at 6: 00 P.M.
Council Members Present:
Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S.
McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve,
Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson
Council Members Absent:
James L. Wood
INVOCATION: Walter A. Whitehurst
Pastor - Retired
[Economic Development Conference:
(Shopping Centers) in Las Vegas]
PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA
Council Lady Rosemary Wilson DISCLOSED her husband is a principal in the accounting firm of
Goodman and Company and is directly and indirectly involved in many of Goodman and Company's
transactions. However, due to the size of Goodman and Company and the volume of transactions it
handles in any given year, Goodman and Company has an interest in numerous matters in which her
husband is not personally involved and of which she does not have personal knowledge. In order to
ensure her compliance with both the letter and the spirit of the State and Local Government Conflict of
Interests Act, it is her practice to thoroughly review the agenda for each meeting of City Council for the
purpose of identifying any matters in which she might have an actual or potential conflict. If, during her
review she identifies any matters, she will prepare and file the appropriate disclosure letter to be
recorded in the official records of City Council. Council Lady Wilson regularly makes this disclosure.
Council Lady Wilson's letter ofdanuary 27, 2004, is hereby made apart of the record.
Council Lady Rosemary Wilson DISCLOSED she is a real estate agent affiliated with Prudential Decker
Realty. Because of the nature of Real Estate Agent affiliation, the size of Prudential, and the volume of
transactions it handles in any given year, Prudential has an interest in numerous matters in which she is
not personally involved and of which she does not have personal knowledge. In order to ensure her
compliance with both the letter and the spirit of the State and Local Government Conflict of Interests Act,
it is her practice to thoroughly review the agenda for each meeting of City Council for the purpose of
identifying any matters in which she might have an actual or potential conflict. If, during her review she
identifies any matters, she will prepare and file the appropriate disclosure letter to be recorded in the
official records of City Council. Council Lady Wilson regularly makes this disclosure. Council Lady
Wilson's letter of January 27, 2004, is hereby made apart of the record.
May 23, 2006
-15 -
Item V -E.
CERTIFICATION OF
CLOSED SESSION ITEM # 55223
Upon motion by Councilman Dyer, seconded by Council Lady Wilson, City Council CERTIFIED THE
CLOSED SESSION TO BE IN ACCORDANCE WITH THE MOTION TO RECESS.
Only public business matters lawfully exempt from Open Meeting
requirements by Virginia law were discussed in Closed Session to
which this certification resolution applies.
AND,
Only such public business matters as were identified in the motion
convening the Closed Session were heard, discussed or considered
by Virginia Beach City Council.
Voting: 10-0
Council Members Voting Aye:
Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S.
McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve,
Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson
Council Members Voting Nay:
None
Council Members Absent:
James L. Wood
May 23, 2006
RESOLUTION
CERTIFICATION OF CLOSED SESSION
VIRGINIA BEACH CITY COUNCIL
WHEREAS The Virginia Beach City Council convened into CLOSED SESSION, pursuant to the
affirmative vote recorded in ITEM # 55222, Page 13, and in accordance with the provisions of The Virginia
Freedom of Information Ac4 and,
WHEREAS: Section 2.2-3712 of the Code of Virginia requires a certification by the governing body
that such Closed Session was conducted in conformity with Virginia law.
NOW, THEREFORE, BE IT RESOLVED: That the Virginia Beach City Council hereby certifies that,
to the best of each member's knowledge, (a) only public business matters lawfully exempted from Open
Meeting requirements by Virginia law were discussed in Closed Session to which this certification resolution
applies; and, (b) only such public business matters as were identified in the motion convening this Closed
Session were heard, discussed or considered by Virginia Beach City Council.
th Hodge Smith, MMC
City Clerk
May 23, 2006
Item V -F.1.
MINUTES
-16 -
ITEM #55224
Upon motion by Councilman Dyer, seconded by Council Lady Wilson, City Council APPROVED
Minutes of the INFORMAL and FORMAL SESSIONS) of May 23, 2006.
Voting: 10-0
Council Members Voting Aye:
Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S.
McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve,
Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson
Council Members Voting Nay.-
None
ay:
None
Council Members Absent:
James L. Wood
May 23, 2006
-17 -
Item V- G.
ADOPTAGENDA
FOR FORMAL SESSION ITEM #55225
BY CONSENSUS, City Council ADOPTED:
AGENDA FOR THE FORMAL SESSION
ADDED:
Resolution to REFER to the Planning Commission an Ordinance to
AMEND the Comprehensive Plan by revising the Princess Anne
Corridor Plan to incorporate provisions pertaining to certain
commercial uses in sub -area 1
May 23, 2006
Item V -G.2.
RECOGNITION ITEM # 55226
Mayor Oberndorf recognized the following Boy Scout in attendance to earn his Citizenship in the
Community Merit Badge:
Troop 364
Sponsored by the Bayside Presbyterian Church
Caleb Pullen
May 23, 2006
item V -H.1.
PUBLIC HEARING
-19 -
ITEM #55227
Mayor Oberndorf DECLARED A PUBLIC HEARING:
REAL and PERSONAL PROPERTY TAX— Proposed Exemptions
Attorney David Bastiaans, I Columbus Center, Suite 1100, represented St. Gregory the Great Catholic
Church, spoke in OPPOSITION to denial. The Church has been paying real estate taxes on the
property since purchased and the current tax is approximately $17, 000. The parking lot serves as an
overflow parking for the weekend services. Approximately `half of the building is utilized by Catholic
Charities of Eastern Virginia with the other `half being Day Care.
Phil Black, Executive Director — Commonwealth Support Systems, 2585 Alleghany Loop,
Phone: 430-2043, spoke in OPPOSITION to denial. Employment and training services are provided to
Adults with disabilities. Taxes are paid on equipment.
Attorney Karen Knott, 1217 Orkney Drive, Phone: 467-3815, representing Hampton Roads Soccer
Council, spoke in OPPOSITION to denial. The Soccer Council represents over 8,000 children in
Virginia Beach. The Council helped develop and maintain the Hampton Roads Soccer Complex. There
is no real estate tax; however, the Council has assumed the maintenance of the Soccer complex.
Landscaping equipment has just been purchased in the amount of approximately $120,000.
There being no further speakers, Mayor Oberndorf CLOSED the PUBLIC HEARING
May 23, 2006
Item V -I.1.
PUBLIC COMMENT
-20 -
ITEM #55228
Mayor Oberndorf INVITED PUBLIC COMMENT:
SHORE DRIVE SAFETYIMPROVEMENTS
The following spoke in SUPPORT:
Kal Kassir, Chairman — Shore Drive Advisory Committee, 2009 Alphine Road, Phone: 481-5398
Betty Barrett, resident of Seagate Condominiums, Phone: 496-9840. The Board endorses all
the recommendations of the Shore Drive Advisory Board.
Mike Wills, 3841 Jefferson Boulevard, Phone: 498-6276, 6 -year resident of Ocean Park, stated
personal property and real estate taxes total over $5,000 a year. Mr. Wills requested a reinvestment back
into their community.
Daphne Atkins, 4492-A Ocean View Avenue, Phone: 464-5011, Vice President — Shore Drive Community
Coalition and member of the Shore Drive Safety Task Force. Shore Drive had the highest density with no
sidewalks.. The Coalition is requesting $4,000 for eight (8) welcome signs welcoming to the community
with repeat messages.
Leslie Cornwell, 4209 Bounty Road, Phone: 363-0350, Board of Directors, represented the Baylake
Pines Civic League, which has voted to support Shore Drive Improvements
Todd M. Solomon, 2160 First Landing Road, represented the Shore Drive Community Coalition and
Cape Story By the Sea and spoke in support of the improvements on Shore Drive.
Tim Solanic, 3612 Dupont Circle, Phone: 287-0320, represented Ocean Park and advised a Pedestrian
had been hit yesterday on Shore Drive.
Nancy Day, 5013 Lauderdale Avenue, Phone: 318-7538. Mrs Day's husband, Burley, was killed on
Shore Drive December 1, 2006, the fifth fatality in 2005. He was a triathlete
Mark Walker, 2504 Chubb Lake Avenue, Phone: 460-9529, Architect, supported full funding. Shore
Drive density is 25% greater than any area of the City of Virginia Beach
Charles M. Smith, 2310 Croix Drive, Phone: 496-5261, President - The Landings Homeowners
Association, represented The Shore Drive Community Coalition.
There being no further speakers, Mayor Oberndorf CLOSED THE PUBLIC COMMENT session.
May 23, 2006
-21 -
Item V.K.
RESOLUTIONS/ORDINANCES ITEM #55229
Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council APPROVED IN
ONE MOTION Ordinances/Resolutions Items la 1,2 and 1b. 6, lb 1-14, ]b 11 (Referred to COG), 2,3
b. c. (DEFERRED),, 4, 5, 6, 7, 8, 9 and 10 of the CONSENT AGENDA.
Item lb 6 (Hampton Roads Soccer Council was ADOPTED:
Item Ib 11 St. Gregory the Great Catholic Church was referred back to the Community Organization
Grant (COG) Committee for reconsideration.
Item 3b/c was DEFERRED until the City Council Session of June 27, 2006.
Voting: 10-0 (By Consent)
Council Members Voting Aye:
Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S.
McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve,
Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson
Council Members Voting Nay:
None
Council Members Absent:
James L. Wood
Council Lady McClanan voted a VERBAL NAY on Item K.10 (DOJ) Consent Decree
May 23, 2006
-22 -
Item VK.I.a.
RESOLUTIONS/ORDINANCES ITEM #55230
Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED:
Resolutions re legislation designating certain property as TAX
EXEMPT on state and local real and personal property:
Goodwill Industries of Hampton Roads
The Nature Conservancy
Hampton Roads Soccer Complex
Voting: 10-0 (By Consent)
Council Members Voting Aye:
Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S.
McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve,
Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson
Council Members Voting Nay.-
None
ay:
None
Council Members Absent:
James L. Wood
May 23, 2006
I AN ORDINANCE TO DESIGNATE GOODWILL
2 INDUSTRIES OF HAMPTON ROADS, INC. AS
3 BEING EXEMPT FROM LOCAL REAL AND
4 PERSONAL PROPERTY TAXATION
5
6 WHEREAS, in accordance with § 58.1-3651 of the Code of
7 Virginia, the Council of the City of Virginia Beach has advertised
8 and conducted a public hearing on the issue of granting an
9 exemption from local property taxes to Goodwill Industries of
10 Hampton Roads, Inc.
11 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
12 VIRGINIA BEACH, VIRGINIA:
13 1. That the Council of the City of Virginia Beach, Virginia,
14 hereby designates Goodwill Industries of Hampton Roads, Inc. as a
15 charitable organization within the context of § 6(a)(6) of Article
16 X of the Constitution of Virginia.
17 2. That real and personal property owned by Goodwill
18 Industries of Hampton Roads, Inc. located within the City of
19 Virginia Beach that is used exclusively for charitable purposes on
20 a nonprofit basis is hereby exempt from local property taxation.
21 3. This exemption is contingent on the following:
22 (a) continued use of the property by Goodwill
23 Industries of Hampton Roads, Inc. for exclusively
24 charitable
purposes;
25 (b) that each July 1, Goodwill Industries of Hampton
26 Roads, Inc. shall file with the Commissioner of the
27 Revenue a copy of its most recent federal income
28 tax return, or, if no such return is required, it
29 shall certify its continuing tax exempt status to
30 the Commissioner of the Revenue; and
31 (c) That every three years beginning on July 1, 2009,
32 Goodwill Industries of Hampton Roads, Inc. shall
33 file with the Commissioner of the Revenue an
34 application for continuation of the exemption.
35 4. That the effective date of this exemption shall be July
36 1, 2006.
37 Adoption requires an affirmative vote of three-fourths of the
38 members of the City Council.
39 Adopted by the Council of the City of Virginia Beach,
40 Virginia, on the rd day of May
2006.
CA -9953
X:\PA\GG\ORDRES\Goodwill ORD
R-1
March 23, 2006
APPROVED AS TO LEGAL SUFFICIENCY:
City Attorney's ffice
2
I AN ORDINANCE TO DESIGNATE HAMPTON
2 ROADS SOCCER COUNCIL AS BEING EXEMPT
3 FROM LOCAL REAL AND PERSONAL
4 PROPERTY TAXATION
5
6 WHEREAS, in accordance with § 58.1-3651 of the Code of
7 Virginia, the Council of the City of Virginia Beach has advertised
8 and conducted a public hearing on the issue of granting an
9 exemption from local property taxes to Hampton Roads Soccer
10 Council.
11 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
12 VIRGINIA BEACH, VIRGINIA:
13 1. That the Council of the City of Virginia Beach, Virginia,
14 hereby designates Hampton Roads Soccer Council as a charitable
15 organization within the context of § 6(a)(6) of Article X of the
16 Constitution of Virginia.
17 2. That real and personal property owned by Hampton Roads
18 Soccer Council located within the City of Virginia Beach that is
19 used exclusively for charitable purposes on a nonprofit basis is
20 hereby exempt from local property taxation.
21 3. This exemption is contingent on the following:
22 (a) continued use of the property by Hampton Roads
23 Soccer Council for exclusively charitable
purposes;
24 (b) that each July 1, Hampton Roads Soccer Council
25 shall file with the Commissioner of the Revenue a
26 copy of its most recent federal income tax return,
27 or, if no such return is required, it shall certify
28 its continuing tax exempt status to the
29 Commissioner of the Revenue; and
30 (c) That every three years, beginning on July 1, 2009,
31 Hampton Roads Soccer Council shall file with the
32 Commissioner of the Revenue an application for
33 continuation of the exemption.
34 4. That the effective date of this exemption shall be July
35 1, 2006.
36 Adoption requires an affirmative vote of three-fourths of the
37 members of the City Council.
38 Adopted by the Council of the City of Virginia Beach,
39 Virginia, on the 23rdday of Mav 2006.
CA -9950
X:\PA\GG\ORDRES\HR Soccer Council ORD
R-1
March 23, 2006
APPROVED AS TO LEGAL SUFFICIENCY:
City Attorney's ffice
2
I AN ORDINANCE TO DESIGNATE THE NATURE
2 CONSERVANCY AS BEING EXEMPT. FROM
3 LOCAL REAL AND PERSONAL PROPERTY
4 TAXATION
5
6 WHEREAS, in accordance with § 58.1-3651 of the Code of
7 Virginia, the Council of the City of Virginia Beach has advertised
8 and conducted a public hearing on the issue of granting an
9 exemption from local property taxes to The Nature Conservancy.
10 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
11 VIRGINIA BEACH, VIRGINIA:
12 1. That the Council of the City of Virginia Beach, Virginia,
13 hereby designates The Nature Conservancy as a charitable
14 organization within the context of § 6(a)(6) of Article X of the
15 Constitution of Virginia.
16 2. That real and personal property owned by The Nature
17 Conservancy located within the City of Virginia Beach that is used
18 exclusively for charitable purposes on a nonprofit basis is hereby
19 exempt from local property taxation.
20 3. This exemption is contingent on the following:
21 (a) continued use of the property by The Nature
22 Conservancy for exclusively charitable
purposes;
23 (b) that each July 1, The Nature Conservancy shall file
24 with the Commissioner of the Revenue a copy of its
25 most recent federal income tax return, or, if no
26 such return is required, it shall certify its
27 continuing tax exempt status to the Commissioner of
28 the Revenue; and
29 (c) That every three years, beginning on July 1, 2009,
30 The Nature Conservancy shall file with the
31 Commissioner of the Revenue an application for
32 continuation of the exemption.
33 4. That the effective date of this exemption shall be July
34 1, 2006.
35 Adoption requires an affirmative vote of three-fourths of the
36 members of the City Council.
37 Adopted by the Council of the City of Virginia Beach,
38 Virginia, on the 23rd day of May 1 2006.
CA -9953
X:\PA\GG\ORDRES\The Nature Conservancy ORD
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March 23, 2006
APPROVED AS TO LEGAL SUFFICIENCY:
City Attorney' Office
2
-23 -
Item
23 -
Item V K.l.b.
RESOLUTIONS/ORDINANCES ITEM #55231
Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council DENIED:
Resolutions re legislation designating certain property as TAX
EXEMPT on state and local real and personal property:
Commonwealth Support Systems, Inc.
Contemporary Art Center of Virginia
District 8 Little League
Dolphin Scholarship Foundation
Equi -Kids Therapeutic Riding Program
Kid's Quest Child Development Center
Northwestern Human Services of Pennsylvania, Inc.
Sara's Mentoring Center, Inc.
Spina Bifida Association of Tidewater
Summer Shakes, Inc.
Virginia State Crime Clinic
Young Musicians of Virginia, Inc.
Voting: 10-0 (By Consent)
Council Members Voting Aye.-
Harry
ye:
Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S.
McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve,
Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson
Council Members Voting Nay.-
None
ay:
None
Council Members Absent:
James L. Wood
May 23, 2006
-24 -
Item V.K.I.b. 11.
RESOLUTIONS/ORDINANCES ITEM #55232
Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council REFERRED BACK
TO COMMUNITY ORGANIZATION GRANT (COG) COMMITTEE FOR RECONSIDERATION.
Resolution re legislation designating certain property as TAX EXEMPT
on state and local real and personal property:
St. Gregory the Great Catholic Church
Voting: 10-0 (By Consent)
Council Members Voting Aye:
Harry E. Diezel, Robert M. Dyer, Vic
McClanan, Richard A. Maddox, Mayor
Peter W. Schmidt, Ron A. Villanueva and
Council Members Voting Nay.-
None
ay:
None
Council Members Absent:
James L. Wood
Mayor Louis R. Jones, Reba S.
Meyera E. Oberndorf, Jim Reeve,
Rosemary Wilson
May 23, 2006
1 AN ORDINANCE TO DESIGNATE ST.
2 GREGORY THE GREAT CATHOLIC CHURCH AS
3 BEING EXEMPT FROM LOCAL REAL AND
4 PERSONAL PROPERTY TAXATION
5
6 WHEREAS, in accordance with § 58.1-3651 of the Code of
7 Virginia, the Council of the City of Virginia Beach has advertised
8 and conducted a public hearing on the issue of granting an
9 exemption from local property taxes to St. Gregory the Great
10 Catholic Church.
11 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
12 VIRGINIA BEACH, VIRGINIA:
13 1. That the Council of the City of Virginia Beach, Virginia,
14 hereby designates St. Gregory the Great Catholic Church as a
15 charitable organization within the context of § 6(a)(6) of Article
16 X of the Constitution of Virginia.
17 2. That real and personal property owned by St. Gregory the
18 Great Catholic Church located within the City of Virginia Beach
19 that is used exclusively for charitable purposes on a nonprofit
20 basis is hereby exempt from local property taxation.
21 3. This exemption is contingent on the following:
22 (a) continued use of the property by St. Gregory the
23 Great Catholic Church for exclusively charitable
24 purposes;
25 (b) that each July 1, St. Gregory the Great Catholic
26 Church shall file with the Commissioner of the
27 Revenue a copy of its most recent federal income
28 tax return, or, if no such return is required, it
29 shall certify its continuing tax exempt status to
30 the Commissioner of the Revenue; and
31 (c) That every three years, beginning on July 1, 2009,
32 St. Gregory the Great Catholic Church shall file
33 with the Commissioner of the Revenue an application
34 for continuation of the exemption.
35 4. That the effective date of this exemption shall be July
36 1, 2006.
37 Adoption requires an affirmative vote of three-fourths of the
38 members of the City Council.
39 Adopted by the Council of the City of Virginia Beach,
40 Virginia, on the day of f 2006.
CA -9956
X:\PA\GG\ORDRES\St. Gregory the Great ORD
R-1
March 22, 2006
APPROVED AS TO LEGAL SUFFICIENCY:
I jdt�x, e e - I'k,
City Attorney's Office
2
-25 -
Item V.K.2.
RESOLUTIONS/ORDINANCES ITEM #55233
Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED, AS
CORRECTED:
Resolution to EXPRESS SUPPORT for Old Dominion University
(ODU) opening a 'four-year branch campus" at the Virginia Beach
Higher Education Center.
Typographical error on Line 22: "subsiding'; should be "subsidizing':
Voting: 10-0 (By Consent)
Council Members Voting Aye:
Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S.
McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve,
Peter W Schmidt, Ron A. Villanueva and Rosemary Wilson
Council Members Voting Nay:
None
Council Members Absent:
James L. Wood
May 23, 2006
REQUESTED BY MAYOR OBERNDORF, VICE MAYOR JONES, AND COUNCILMEMBERS
MCCLANAN, VILLANUEVA, AND WILSON (ODU ALUMNI)
1 A RESOLUTION EXPRESSING SUPPORT FOR
2 OLD DOMINION UNIVERSITY'S OPENING OF
3 A FOUR-YEAR BRANCH CAMPUS AT THE
4 VIRGINIA BEACH HIGHER EDUCATION
5 CENTER
6
7 WHEREAS, on January 11, 2006, Old Dominion University
8 announced plans to open a four-year branch campus at the Virginia
9 Beach Higher Education Center, concentrating on bachelor's and
10 master's degree programs in health services and education and
11 counseling;
12 WHEREAS, Old Dominion University will open the majority of the
13 programs to five hundred freshman and junior transfer students in
14 fall 2006, with the remaining programs to be initiated the
15 following year with a second cohort of five hundred students;
16 WHEREAS, current senior faculty from Old Dominion's Norfolk
17 campus will be relocated to the higher education center, and
18 additional faculty are being hired to work under their supervision;
19 WHEREAS, approximately 4500 Old Dominion University students
20 live in Virginia Beach, and more than 3500 students take classes at
21 the Virginia Beach Higher Education Center each year;
22 WHEREAS, the taxpayers of Virginia Beach have been subsidizing
23 Virginia's public universities since before the City's inception,
24 but until now have been unable to earn a degree at one of those
25 universities without having to commute to another city or town;
26 WHEREAS, the presence of a four-year branch campus will allow
27 Virginia Beach's young people an opportunity to earn their degrees
28 here, in their hometown; and
29 WHEREAS, the presence of the four-year branch campus will
30 increase opportunities for adults who seek to further their
31 education, which will result in the City having a stronger
32 workforce;
33 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
34 VIRGINIA BEACH:
35 That the City Council hereby expresses its full support for
36 Old Dominion University's effort to provide access to education
37 through the expansion of programming at the Virginia Beach Higher
38 Education Center.
39
40 Adopted by the Council of the City of Virginia Beach,
41 Virginia, on the 23rd day of Mahy , 2006.
APPROVED AS TO LEGAL SUFFICIENCY
r
City Attorney's -'Office
CA -10036
H:/P&A/OrdRes/ODU Support RES.doc
May 16, 2006
R-3
-26 -
Item V.K.3.a.
RESOLUTIONS/ORDINANCES ITEM #55234
The following registered in SUPPORT:
Susan Elwell, 2800 Shore Drive, Phone: 412-9734, Owner — Segway of Hampton Roads
Mark A. Landers, 2800 Shore Drive, Phone: 412-9734General Manager — Segway of Hampton Roads,
Attorney Michael J. Levy, 222 Central Park Avenue, Suite 2000, (757) 687-7524
Troy Clifton, 5516 Lambdin Arch, Phone: 560-1097
Upon motion by Councilman Maddox, seconded by Councilman Reeve, City Council ADOPTED:
Ordinance to AMEND the City Code:
1. AMEND §7-59.2 re riding on the beach or boardwalk
The City will be indemnified from any liability.
This shall be a pilot program offering guided tours on the boardwalk, between the hours of
6: OOA.M. and 12 NOON, expiring on September 30, 2006.
Voting: 10-0 (By Consent)
Council Members Voting Aye:
Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S.
McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve,
Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson
Council Members Voting Nay.-
None
ay:
None
Council Members Absent:
James L. Wood
May 23, 2006
1 AN ORDINANCE TO AMEND SECTION § 7-59.2 OF
2 THE CITY CODE PERTAINING TO RIDING ON THE
3 BEACH OR THE BOARDWALK
4
5 SECTION AMENDED: §7-59.2
6
7 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA
8 BEACH, VIRGINIA:
9
10 That Section §7-59.2 of the City Code is hereby amended and
11 reordained to read as follows:
12 Sec. 7-59.2. Regulations Pertaining to Riding on the Beach and
13 the Boardwalk
14
15 (a) Except as set forth in § 7-59.2 (c), it shall be
16 unlawful for any person to ride on the beach or the boardwalk an
17 all -terrain vehicle, a bicycle, electric power -assisted bicycle,
18 electric personal assistive mobility device, electric -powered
19 wheeled device, gas -powered wheeled device, moped, scooter,
20 skateboard or a pedal -powered vehicle that is muscle -powered or
21 any other muscle -powered device.
22 (b) The use of roller blades and roller skates on the
23 boardwalk is permitted.
24 (c) The use of electric personal assistive mobility
25 devices on the boardwalk is permitted pursuant to a temporary
26 permit authorized by the City Manager. A temporary permit may
27 be issued for a pilot program offering guided tours on the
28 boardwalk, between the hours of 6 A.M. and 12 noon, utilizing
29 electric personal assistive mobility devices. Specific
30 provisions for the temporary permit will be developed by the
31 City Manager. The provisions of this subsection shall expire on
32 September 30, 2006.
33 Adopted by the City Council of Virginia Beach, Virginia
34 this 23rd day of May JF 2006.
CA10026
GG\Ord&Res\Proposed\EPAMDs.ord
R-5
May 10, 2006
2
APPROVED AS TO LEGAL
SUFFICIENCY:
City Attorne 's Office
-27 -
Item V K.3./b/c
RESOLUTIONS/ORDINANCES ITEM #55235
Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council DEFERRED until
the City Council Session of June 27, 2006:
Ordinance to AMEND the City Code:
b. AMEND §§21-422, 21-426, 21-429 and ADD § 21-422.1 re
the use of nonconsensual towing from private property to
enforce parking restrictions
c. -AMEND §21-426 re maximum basic towing fee for
nonconsensual tows
Voting: 10-0 (By Consent)
Council Members Voting Aye:
Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S.
McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve,
Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson
Council Members Voting Nay:
None
Council Members Absent:
James L. Wood
May 23, 2006
WXE
Item V K.4.
RESOLUTIONS/ORDINANCES ITEM #55236
Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED:
Ordinance to GRANT a franchise to Cox Communications Hampton
Roads, LLC to construct, operate and maintain a cable system.
Voting: 10-0 (By Consent)
Council Members Voting Aye.-
Harry
ye:
Harry E. Diezel, Robert M. Dyer, Vic
McClanan, Richard A. Maddox, Mayor
Peter W. Schmidt, Ron A. Villanueva and
Council Members Voting Nay.-
None
ay:
None
Council Members Absent:
James L. Wood
> Mayor Louis R. Jones, Reba S.
Meyera E. Oberndorf, Jim Reeve,
Rosemary Wilson
May 23, 2006
CITY OF VIRGINIA BEACH
CABLE TELEVISION FRANCHISE ORDINANCE
FOR COX COMMUNICATIONS HAMPTON ROADS, LLC
May 23, 2006
874794v2
SECTION 1.
SECTION 2.
SECTION 3.
SECTION 4.
SECTION 5.
SECTION 6.
SECTION 7.
SECTION 8.
SECTION 9.
SECTION 10.
SECTION 11.
SECTION 12.
SECTION 13.
SECTION 14.
SECTION 15.
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
874794v2
TABLE OF CONTENTS
STATEMENT OF INTENT AND PURPOSE .......................
SHORTTITLE.................................................................................................1
DEFINITIONS..................................................................................................1
GRANT OF AUTHORITY AND GENERAL PROVISIONS ......................6
DESIGNPROVISIONS...................................................................................8
SERVICE PROVISIONS...............................................................................10
CONSTRUCTION PROVISIONS................................................................13
OPERATION AND REPORTING PROVISIONS......................................17
CONSUMER PROTECTION PROVISION................................................19
GENERAL FINANCIAL AND INSURANCE PROVISIONS...................22
FORECLOSURE, RECEIVERSHIP AND ABANDONMENT.................28
REMOVAL, TRANSFER AND PURCHASE..............................................29
RIGHTS OF INDIVIDUALS PROTECTED...............................................31
MISCELLANEOUS PROVISIONS..............................................................31
EFFECTIVE DATE AND TIME OF ACCEPTANCE...............................33
CORPORATE GUARANTY EXAMPLE ................................................. A-1
TECHNICAL STANDARDS.......................................................................B-1
FRANCHISE FEE QUARTERLY REPORT ........................................... C-1
PEG ORIGINATION POINTS AND SIGNAL PATH DIAGRAM ....... D-1
ORDINANCE NO.
AN ORDINANCE GRANTING A FRANCHISE TO COX COMMUNICATIONS
HAMPTON ROADS, LLC TO CONSTRUCT, OPERATE AND MAINTAIN A CABLE
SYSTEM IN THE CITY OF VIRGINIA BEACH, VIRGINIA; SETTING FORTH
CONDITIONS ACCOMPANYING THE GRANT OF THE FRANCHISE; PROVIDING
FOR REGULATION AND USE OF THE SYSTEM; AND PRESCRIBING
PENALTIES FOR VIOLATION OF THE PROVISIONS HEREIN.
PREAMBLE
The City of Virginia Beach, Virginia does ordain that it is in the public
interest to permit the use of public rights-of-way and easements for the
construction, maintenance, and operation of a Cable System under the
terms of this Franchise; said public purpose being specifically the
enhancement of communications for the City.
SECTION 1. STATEMENT OF INTENT AND PURPOSE. City intends, by the
adoption of this Franchise, to bring about the further development and operation of a
Cable System. This development can contribute significantly to the communications
needs and desires of many individuals, associations and institutions.
SECTION 2. SHORT TITLE. The Franchise granted pursuant to this ordinance shall
be known and cited as the "City of Virginia Beach Cable Television Franchise Ordinance
for Cox Communications Hampton Roads, LLC." Within this document it shall also be
referred to as "this Franchise" or "the Franchise."
SECTION 3. DEFINITIONS. For the purpose 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 tense,
words in the plural number include the singular number and words in the singular number
include the plural number. The words "shall" and "will" are mandatory and "may" is
permissive. Words not defined shall be given their common and ordinary meaning.
3.01 "Affiliate" when used in relation to any Person, means another who owns or
controls, is owned or controlled by, or is under common ownership or control with, such
Person.
3.02 "Basic Cable Service" means any Service tier which includes the lawful
retransmission of local television broadcast signals and any public, educational, and
governmental access programming required by the Franchise to be carried on the basic
tier. Basic Cable Service as defined herein shall not be inconsistent with 47 U.S.C. §
543(b)(7).
3.03 "Cable Service" or "Service" means (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
874794v2
or Other Programming Service. Cable Service as defined herein shall not be inconsistent
with the definition set forth in 47 U.S.C. § 522(6).
3.04 "_Cable System" OL"means 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 television signals of one (1) or
more television broadcast stations;
B. a facility that serves Subscribers without using any public Right -of -Way;
C. a facility of common carrier which is subject, in whole or in part, to the
provisions of 47 U.S.C. §201 et seq., except that such facility shall be considered a Cable
System (other than for purposes of 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 47 U.S.C. § 573; or
E. any facilities of any electric utility used solely for operating its electric
utility systems.
3.05 "Channel" means a portion of the electromagnetic frequency spectrum which is
used in a Cable System and which is capable of delivering a television Channel as
defined by the FCC.
3.06 "City" means the City of Virginia Beach, Virginia, a municipal corporation of the
Commonwealth of Virginia, its officers, employees, agents and assigns.
3.07 "City Council" means the governing body of the City of Virginia Beach, Virginia.
3.08 "Commercial Entity" means any association, firm, corporation, partnership or
other legally -recognized entity whether for profit or not for profit, located in the City.
3.09 "Complaint" means any correspondence (including letters, e-mail messages, faxes
or complaints forwarded by the City in any means, and telephone calls elevated to
management for resolution) sent by Subscriber to City or Grantee alleging or asserting
signal interruption, poor picture quality, dissatisfaction over programming content,
dissatisfaction over business practices, or dissatisfaction over construction or
maintenance of the System. It shall not include any expression of dissatisfaction with
any action of Grantee which is authorized by this Franchise, or applicable state or federal
law. The term "Complaint" shall not include an inquiry which is immediately answered
by Grantee to the apparent satisfaction of the complaining party.
3.10 "Converter" means an electronic device which converts signals to a frequency not
susceptible to interference within the television receiver of a Subscriber and by which an
874794v2
appropriate Channel selector also permits a Subscriber to view all Basic Cable Service
signals delivered at designated Converter dial locations.
3.11 "Drop" means the cable that connects the ground block on the Subscriber's
residence or institution to the nearest feeder cable of the System.
3.12 "EG" means educational and governmental.
3.13 "FCC" means the Federal Communications Commission or a designated
representative.
3.14 "Franchise" or "Cable Franchise" means the franchise granted by this ordinance
and the regulatory and contractual relationship established hereby.
3.15 "Franchise Fee" includes any tax, fee, or assessment of any kind imposed by the
City or other Governmental Entity on Grantee or Subscriber, or both, solely because of
their status as such. It does not include any tax, fee, or assessment of general
applicability (including any such tax, fee, or assessment imposed on both utilities and
cable operators or their Services but not including a tax, fee, or assessment which is
unduly discriminatory against cable operators or cable Subscribers); capital costs which
are required by the Franchise to be incurred by Grantee for public, educational, or
governmental access facilities; requirements or charges incidental to the awarding or
enforcing of the Franchise, including payments for bonds, security funds, letters of credit,
insurance, indemnification, penalties, or liquidated damages; or any fee imposed under
Title 17. Franchise Fee as defined herein shall not be inconsistent with the definition set
forth in 47 U.S.C. § 542.
3.16 "Governmental Entity" means any federal, state or local political body or
governing body, acting in its governmental capacity.
3.17 "Grantee" means Cox Communications Hampton Roads, LLC, its agents,
employees, lawful successors, transferees or assignees.
3.18 "Gross Revenues" means all cash, credits, property of any kind or nature, or other
consideration received directly or indirectly by Grantee, its Affiliates, subsidiaries, or
parents, or any other entity that owns or is owned by Grantee, arising from or attributable
to the conduct of business from all sources of operation of the Cable System within the
City, including but not limited to:
3.18.1 revenue from all charges for services provided to Subscribers of
entertainment and non -entertainment service (including leased access
fees);
3.18.2 revenues from all charges for local insertion of commercial advertisements
upon the Cable System;
3.18.3 revenues from all charges for the leased use of studios;
874794v2
3.18.4 revenues from all charges for the Installation, connection and
reinstatement of equipment necessary for utilization of the Cable System
and the provision of Subscriber and other services;
3.18.5 the sale, exchange or use of cablecast of any programming developed for
community use or institutional users; and
3.18.6 the value of any goods, services or other remuneration in nonmonetary
form, received by the Grantee in consideration for any advertising or other
service arising from or attributable to the operation of the Cable System.
Gross Revenues shall not include:
3.18.7 sales, excise or other taxes or fees collected by Grantee on behalf of any
Governmental Entity;
3.18.8 charges for Subscriber service or other revenue not actually received by
Grantee; or
3.18.9 revenue refunded or credited to Subscribers.
For the purpose of this Section, the phrase "arising from or attributable to the
conduct of business from all sources of operation of the Cable System" shall
include, but not be limited to:
3.18.10 any activity, product or service which generates revenue of any type
whatsoever and which is offered to the Subscribers of the System, or any
related services;
3.18.11 any activity, product or service which is revenue producing to Grantee
and is offered to the Subscribers of the System by a medium other than
the System, including, but not limited to, direct mail and home delivery if
the System's Subscriber list or any portion thereof is utilized for
purposes of solicitation, unless reasonable consideration is paid to the
Grantee for such utilization; and
3.18.12 any activity, product or service in the production or provision of which
any of the assets of the System, including, but not limited to, cable
production facilities, and administrative facilities, are included, unless
reasonable consideration is paid to the Grantee for such utilization.
3.19 "Installation" means the act of connecting the Cable System from feeder cable to
the point of connection including Standard Installations and custom Installations with the
Subscriber Converter or other terminal equipment.
3.20 "Lockout Device" means an optional mechanical or electrical accessory to a
Subscriber's terminal which inhibits the viewing of a certain program, certain Channel, or
certain Channels provided by way of the Cable System.
8747942
3.21 "Normal Business Hours" means those hours during which most similar
businesses in City are open to serve customers. In all cases, "Normal Business Hours"
must include some evening hours, at least one (1) night per week and/or some weekend
hours.
3.22 "Normal Operating Conditions" means those Service conditions which are within
the control of Grantee. Those conditions which are not within the control of Grantee
include, but are not limited to, natural disasters, civil disturbances, power outages,
telephone network outages, and severe or unusual weather conditions. Those conditions
which are ordinarily within the control of Grantee include, but are not limited to, special
promotions, pay-per-view events, rate increases, regular peak or seasonal demand
periods, and maintenance or upgrade of the Cable System.
3.23 "Other Pro min Service" means information that a cable operator makes
available to all Subscribers generally.
3.24 "Pay Television" means the delivery over the System of pay -per -channel or pay -
per -program audio-visual signals to Subscribers for a fee or charge, in addition to the
charge for Basic Cable Service or Other Programming Services.
3.25 "PEG" means public, educational and governmental.
3.26 "Person" means any individual residing in the City.
3.27 "Public Property" means any real property, other than a Street, owned or leased
by the City.
3.28 "Service Area" means the entire geographic area within the City as it is now
constituted or may in the future be constituted.
3.29 "_Service Interruption" means the loss of picture or sound on one (1) or more
Cable Channels.
3.30 "Service Outlet' means the connection at the Subscriber terminal located at a
point designated by the Subscriber necessary to provide Service to the Subscriber. A
dwelling or other building within which a Subscriber receives Service may have one (1)
Service Outlet or multiple Service Outlets.
3.31 "Standard Installation" means any residential or commercial Installation which
can be completed using a Drop of one hundred fifty (150) feet or less.
3.32 "Street' means the surface of and the space above and below any public Street,
public road, public highway, public freeway, public lane, public path, public wa
alley, public court, public sidewalk, public boulevard public parkway, y� Public
p p y, public drive or
any public easement or right-of-way now or hereafter held by City which shall, within its
proper use and meaning in the sole opinion of City, entitle Grantee to the use thereof for
the purpose of installing or transmitting over poles, wires, cables, conductors, ducts,
874794v2
conduits, vaults, manholes, amplifiers, appliances, attachments and other property as may
be ordinarily necessary and pertinent to a system.
3.33 "Subscriber" means any Person, Commercial Entity or Governmental Entity
within the City who is authorized to receive service provided by Grantee by means of the
System. In the case of multiple office buildings or multiple dwelling units, the
"Subscriber" means the lessee, tenant or occupant not the building owner, except in cases
where Grantee and the building owner have entered into a legally permissible bulk -billed
arrangement.
3.34 "Two -Way System" means a System that can pass video, voice, and/or data
signals in both directions simultaneously.
3.35 "Video Programming" means programming provided by, or generally considered
comparable to programming provided by, a television broadcast station.
SECTION 4. GRANT OF AUTHORITY AND GENERAL PROVISIONS
4.01 Grant of Franchise. This Franchise is granted pursuant to the terms and
conditions contained herein. Failure of Grantee to provide a System as described herein,
or meet the obligations and comply with all provisions herein, shall be deemed a
violation of this Franchise.
4.02 Criteria of Selection. Grantee's technical ability, financial condition, legal
qualifications, and ability to meet the future cable -related community needs and interests,
taking into account the cost of meeting such needs and interests, were among those items
considered and approved by City in full public proceedings of which Grantee was
afforded reasonable notice and a reasonable opportunity to be heard.
4.03 Authority for Use of Streets.
A. For the purpose of constructing, operating, and maintaining a System in
the City, Grantee may erect, install, construct, repair, replace, relocate, reconstruct,
remove and retain in, on, over, under, upon, across and along the Streets within the City
such lines, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances,
pedestals, attachments and other property and equipment as are necessary and
appurtenant to the operation of the System, provided that all applicable permits are
applied for and granted, all fees paid and all other City codes and ordinances are
otherwise complied with.
B. With the exception of Drop construction performed in a generally
perpendicular angle to a Street, Grantee shall, prior to any construction of the System, file
plans with the City. City shall, in a timely fashion, approve or disapprove such plans in
writing, which approval shall not to be unreasonably withheld.
C. Grantee shall use its best efforts to construct and maintain the System so
as not to interfere with other uses of Streets. Whenever feasible Grantee shall make use
of existing poles and other facilities available to Grantee. Except in an emergency,
8747942
Grantee shall use its best efforts to notify residents affected by proposed work prior to
commencement of that work.
D. Notwithstanding the above grant to use the Streets, no Street shall be used
by Grantee if City, in its reasonable opinion, determines that such use is inconsistent with
the terms, conditions or provisions by which such Street was created or dedicated, or is
presently used.
4.04 Franchise Term. The effective date of this Franchise shall be as set forth in
Section 15.01, and the Franchise shall expire ten (10) years from such effective date,
unless renewed, revoked or terminated sooner as herein provided.
4.05 Previous Franchises. Upon acceptance by Grantee as required by Section 15.02
herein, this Franchise shall supersede and replace any previous ordinance or other
authorization granting a franchise to Grantee. Ordinance No. 91-2061 H is hereby
expressly repealed.
4.06 Area Covered.
A. This Franchise is granted for the territorial boundary of the City which
shall include any new territory which shall become part of the City ("Service Area").
Grantee shall provide Service to any Person, Commercial Entity and Governmental
Entity requesting Service within the City according to the conditions, limitations and
schedules set forth herein. If any annexed area is served by another cable operator at the
time of annexation, Grantee shall not be obligated to provide Service to that area.
B. Grantee shall extend Service to any area when potential Subscribers that
can be served by extension of the System past occupied dwelling units is equivalent to a
density of thirty (30) homes per Street mile of plant contiguous to the activated System.
4.07 Police Powers. Grantee's rights are subject to the police powers of City to adopt
and enforce ordinances of general applicability necessary to protect and preserve the
health, safety and welfare of the public. Grantee shall comply with all applicable general
laws and ordinances enacted by City pursuant to those powers.
4.08 Use of Grantee and Cit- Facilities. City shall have the right to install and
maintain, free of charge, upon the poles and within the underground pipes and conduits of
Grantee, any wires and fixtures desired by City to the extent that such installation and
maintenance does not unreasonably interfere with existing or future operations of
Grantee. If Grantee gives City sixty (60) days notice of any interference, City will
comply with Grantee's request to correct the interference at City's expense. Grantee
shall have the right to install and maintain, free of charge, upon the poles and within the
underground pipes and conduits of City, any wires and fixtures desired by Grantee to the
extent that such installation and maintenance does not unreasonably interfere with
existing or future operations of City. If City gives Grantee sixty (60) days notice of any
interference, Grantee will comply with City's request to correct the interference at
Grantee's expense.
8747942
7
4.09 Written Notice. All notices, reports, or demands required to be given in writing
under this Franchise shall be deemed to be given when delivered personally to any officer
of Grantee or City's Manager and City Attorney or forty-eight (48) hours after it is
deposited in the United States mail in a sealed envelope, with registered or certified mail
postage prepaid thereon, or sent by overnight delivery service, addressed to the party to
whom notice is being given, as follows:
If to City: City of Virginia Beach
Office of the City Manager
Municipal Center
Virginia Beach, VA 23456
If to Grantee: Cox Communications Hampton Roads, LLC
1341 Crossways Blvd.
Chesapeake, VA 23320
Attn: General Manager
With a courtesy copy (not sufficient to provide notice) to:
Cox Communications, Inc.
ATTN: LEGAL DEPT.
1400 Lake Hearn Dr.
Atlanta, GA 30319
Such addresses may be changed by either party upon notice to the other party given as
provided in this section.
4.10 Franchise Non -Exclusive. The Franchise granted herein is non-exclusive. The
City specifically reserves the right to grant, at any time, additional Franchises for a
System in accordance with applicable law, including, without limitation, Virginia Code
§15.2-2108, et seq., and 47 U.S.C. §541. In the event the City makes such a grant or
grants, nothing herein shall impair any rights Grantee may have under applicable law.
SECTION 5. DESIGN PROVISIONS.
5.01 System Design. Grantee shall, upon acceptance of this Franchise as defined
herein, immediately undertake all necessary steps to construct, operate and maintain a
System that meets the requirements contained herein.
5.02 Two -Way System. Grantee shall provide a Two -Way System.
5.03 Future System Modifications.
A. City and Grantee recognize that Grantee's System is operated as part of
Grantee's greater Hampton Roads regional organization. To assure that Grantee's Cable
System in the City maintains the same capabilities as other systems operated by Grantee
in the Hampton Roads region, Grantee agrees that when one (1) or more of Grantee's
Cable Systems in Hampton Roads obtains a capability with respect to any Cable Service
that exceeds that provided by Grantee in the City, the City may require Grantee to
874794v2
provide the same capability on its System in the City. Grantee shall complete any
necessary modification of its System within twelve (12) months of receipt of the City's
request.
B. This Section 5.03 shall not apply to capabilities provided by Grantee in
areas that are (1) subject to effective competition, or; (2) are part of a Service trial or new
Service launch that is less than two (2) years old.
5.04 Lockout Device. Upon the request of a Subscriber, Grantee shall make available
by sale or lease a Lockout.
5.05 Provision of Service. After Service has been established by activating trunk and
distribution cable for any area, Grantee shall, except under conditions beyond Grantee's
reasonable control, provide Service via a Standard Installation to:
A. Any Person or Governmental Entity within the area within twenty-one
(2 1) days from the date of request; and
B. Any Commercial Entity within the area upon terms and conditions
negotiated by the Commercial Entity and Grantee.
5.06 Technical Standards. The System shall be designed, constructed and operated so
as to meet those technical standards set forth in Exhibit B. These standards shall, at a
minimum, comply with the technical standards promulgated by the FCC relating to Cable
Systems pursuant to Title 47, Section 76, subpart K of the Code of Federal Regulations,
as may be amended or modified from time to time, which regulations are expressly
incorporated herein by reference.
5.07 Testing.
A. Based upon indications of significant non-compliance with the technical
standards required by this Franchise, City may require Grantee to perform tests and/or
analyses to confirm compliance. City shall endeavor to arrange its request for such tests
so as to minimize hardship or inconvenience to Grantee or Subscribers. The City or its
representatives may witness the tests. Upon completion of testing, Grantee shall provide
City with a report of the test results.
B. If after receiving Grantee's test report, City determines that reasonable
evidence indicates significant non-compliance with this Franchise still exists, City may
retain an independent engineer to perform tests and analyses directed toward the
particular matter in controversy.
1. Grantee shall bear the expense for the independent testing if the
test confirms the alleged non-compliance. City shall bear the expense of the
independent testing if Grantee is found not to be at fault.
2. If Grantee is found to be at fault, Grantee shall provide a written
report to City detailing the steps undertaken to correct the non-compliance.
8747942
C. Grantee shall conduct all tests of its System as required by FCC
regulations. Results of such testing shall be provided free of charge to City upon request.
The tests may, upon request of City, be witnessed by representatives of City.
SECTION 6. SERVICE PROVISIONS.
6.01 Basic Service. Grantee shall offer to all Subscribers a service level designed to
meet the minimum information needs of the residents of the City. Grantee shall offer
Basic Cable Service as required by law, including off -air local broadcasting channels and
the PEG Access Channels set forth in Section 6.07. Grantee retains the right to add,
delete or modify the programming on such Basic Cable Service tier.
6.02 Regulation of Service Rates.
A. City may regulate rates for the provision of Cable Service, equipment, and
Installations in accordance with applicable federal law, in particular 47 C.F.R. Part 76
subpart N. In the event the City chooses to regulate rates it shall, in accordance with 47
C.F.R. §76.910, obtain certification from the FCC, if applicable. The City shall follow
all applicable FCC rate regulations and shall ensure that appropriate personnel are in
place to administer such regulations. City reserves the right to regulate rates for any
future services to the extent permitted by law.
B. Grantee shall not discriminate among Subscribers in the rates it charges,
however, nothing herein shall preclude the Grantee from establishing reasonable
classifications of customers and charging them different rates.
6.03 Non -Standard Installations. Grantee shall install and provide Cable Service to
any Person requesting other than a Standard Installation provided that said Cable Service
can meet FCC technical specifications and all payment and policy obligations are met. In
such case, Grantee may charge for the incremental increase in material and labor costs
incurred beyond the Standard Installation.
6.04 Programming Decisions. All programming decisions shall be at the sole
discretion of Grantee; provided, however, that Grantee shall be requested to maintain a
diverse mix, quality, and level of Service and shall notify City, prior to notification of
Subscribers, of any proposed change in the mix, quality, or level of Service.
6.05 Emergency Alert System. Grantee shall at all times comply with the Emergency
Alert System standards pursuant to Title 47, Section 11, Subparts A-E of the Code of
Federal Regulations, as may be amended or modified from time to time.
6.06 Service to Public Facilities.
A. Grantee shall provide, free of charge throughout the term of the Franchise,
Installation of one (1) Drop, one (1) cable outlet, and one (1) Converter, if necessary, and
the highest level of Cable Service offered by Grantee, excluding pay-per-view, pay -per -
channel (premium) programming, high-speed data services, or newly created non -video
Cable Services, without charge to:
874794v2 10
1. All buildings owned or leased by the City within the City and used
for government purposes. The City shall be responsible for obtaining
authorization for Grantee to enter any leased buildings on terms reasonably
acceptable to Grantee.
2. All classroom/instructional buildings designated by the City within
the City that are owned or leased by the Virginia Beach School Board;
3. All recreational centers designated by the City within the City that
are owned or leased by the City.
This requirement shall not include any digital tier of services Grantee may
offer (except digital PEG Channels designated pursuant to Section 6.07)
unless and until such time as Grantee's digital programming reduces the
amount of spectrum available for analog programming to less than
approximately sixty (60) Channels of analog programming. Grantee shall
be responsible for the cost of extension to subsequently designated
institutions for the first two hundred (200) feet as measured from
Grantee's nearest active plant. The institution shall pay the net additional
Drop or extension costs beyond the two hundred (200) feet.
B. Additional Subscriber Drops and/or outlets in any of the locations
identified in subparagraph A, above, will be installed by Grantee at the lowest actual cost
of Grantee's time and material. Alternatively, said institutions may add outlets at their
own expense, as long as such installation meets Grantee's standards and approval, which
approval shall not be unreasonably withheld. Grantee shall have three (3) months from
the date of City -designation of additional accredited schools or public institutions or
relocations to complete construction of the Drop and the outlet unless weather or other
conditions beyond the control of Grantee requires more time.
6.07 Public, Educational and Governmental ("PEG") Access Channels.
A. Grantee shall, at no charge to the City, continue to provide three (3)
Channels on Grantee's Basic Service Tier to air non-commercial PEG access
programming, consistent with Section 611 of the cable Act (47 U.S.C. §531), and, upon
ninety (90) days written notice from the City, up to four (4) Channels on a digital service
tier, one (1) of which shall be used for City training purposes on a viewer -restricted basis
(i.e., audio and video encrypted). The City shall have sole discretion to determine the
users of said Channels. Notwithstanding anything to the contrary, Grantee shall be
permitted to use capacity on the Channels for the provision of other Services if such
Channels are not being used for the purposes designated pursuant to rules and procedures
developed by the City.
B. Grantee shall, at a minimum, provide at no cost one (1) Converter or other
device at each public building specified in Section 6.06 of this Franchise to facilitate the
viewing of any encrypted PEG access Channel. Upon the activation of any additional
PEG access Channels on a digital tier, Grantee shall provide, at no cost to the City, such
874794v2 11
additional equipment necessary to allow the viewing of such Channels which may
include a digital decoding device or additional Converter at each building.
C. Grantee shall maintain the existing signal paths, as illustrated in Exhibit D,
between the PEG access origination point(s) and its headend at the same technical
standards as required for the System. Should any of these points move to another
location, the cost of establishing the dedicated cable program origination capability at the
new location shall be reimbursed by the City to Grantee. The existing origination points
are as follows:
1. From the City Municipal Center (City Council and School Board
chambers) terminating at the Advanced Technology Center.
2. From the Advanced Technology Center to Grantee's Master
Telecommunications Center.
D. Upon written request from the City, Grantee shall allow other franchised
cable operators to interconnect with Grantee's Cable System for the sole purpose of
allowing the transmission of PEG access programming to such other franchised cable
operators within the City. Nothing herein shall prohibit Grantee from requiring such
other franchised cable operator to pay the costs of such interconnection, including
construction, signal transport, and maintenance costs.
E. Grantee shall assist the City in having PEG access program listings appear
in or on the electronic program guides used in the Cable System to the maximum extent
such listings are technically and economically feasible.
F. Grantee shall continue to produce community programming of local
interest and concern as long as economically feasible commensurate with community
needs.
G. Upon notification by PEG access Channel authorities, Grantee's response
time for any Dedicated Fiber signal discrepancies shall be as follows:
1. Dedicated Fiber technical problems which render any or all of the
PEG access Channels unusable or unviewable shall be serviced as soon as
possible and in the same priority as any other primary signal source. Minor signal
distortions or problems shall be serviced within forty-eight (48) hours.
2. Signal problems on any Dedicated Fiber supporting PEG access
Channel operation which render the signal unusable or unviewable shall be
serviced as soon as possible. Other technical problems on any Dedicated Fiber
shall be addressed within forty-eight (48) hours.
3. All maintenance and repairs on Grantee's System will be at no cost
to City.
8747942 12
H. In the event the City designates a body to administer any of the PEG
access Channels, Grantee agrees to cooperate with and consult with such body in
connection with matters relating to the use of the PEG access Channels.
I. The Grantee shall provide the City a monthly PEG capital fee in the
amount of twenty cents ($0.20) per Subscriber per month. Grantee shall pay the PEG
capital fee on the same schedule as the Franchise Fee payment required in Section 10.
Grantee shall cooperate with City to ascertain the monetary value of the in-kind services
and facilities Grantee provides pursuant to this Franchise in an effort to establish any
PEG capital grant surcharge fee that City may be authorized to impose on any new cable
operator in the City.
J. Any and all payments by Grantee to City in support of PEG access
programming shall not be deemed "Franchise Fees" within the meaning of Section 622 of
the Cable Act (47 U.S.C. § 542). Consistent with applicable law, Grantee may list the
PEG capital fee as a line item on Subscriber bills.
K. If the Grantee makes changes to Grantee's Cable System that require
improvements to access facilities and equipment, Grantee shall provide any necessary
additional headend and distribution facilities or equipment within thirty (30) days so that
PEG facilities and equipment may be used as intended with respect to the up to seven (7)
PEG Channels specified in Section 6.07(A), so that live and taped programming can be
cablecast efficiently to Subscribers. Grantee shall be solely responsible for the costs
associated with maintenance, repair and any desired technology changes of the signal
transport facilities required by Section 6.07(C).
L. The Grantee shall not arbitrarily or capriciously change access Channel
assignments, and the Grantee shall seek to minimize the number of such changes;
provided, however, that the Grantee may change access Channel assignments as it deems
appropriate so long as (i) the Grantee gives City programmer ninety (90) days' notice of
such change (unless Grantee is required by law to make the change earlier), and (ii)
Grantee reimburses the City or its designee for its document costs, up to Five Thousand
and No/100 Dollars ($5,000) to provide for revision of access Channel station
identification products such as logos, intros, programming materials, etc.
SECTION 7. CONSTRUCTION PROVISIONS.
7.01 Construction Standards.
A. Grantee shall comply with the construction requirements of local, state
and federal laws.
B. All installation of electronic equipment shall be of a permanent nature,
durable and installed in accordance with the provisions of the National Electrical and
Safety Code and National Electrical Code as amended, as applicable to Cable Systems.
C. Antennas and their supporting structures (tower) shall be painted, lighted,
erected and maintained in accordance with all applicable rules and regulations of the
8747942 13
Federal Aviation Administration and all other applicable state or local laws, codes and
regulations.
D. All of Grantee's plant and equipment, including, but not limited to, the
antenna site, headend and distribution system, towers, house connections, structures,
poles, wire, cable, coaxial cable, fixtures and appurtenances shall be installed, located,
erected, constructed, reconstructed, replaced, removed, repaired, maintained and operated
in accordance with accepted engineering practices, performed by qualified maintenance
and construction personnel so as not to endanger or interfere with improvements City
may deem appropriate to make and also to reasonably preserve and protect plants and tree
improvements in the tree belt and right-of-way, and not to interfere with the legal rights
of any property owner, or to unnecessarily hinder or obstruct pedestrian or vehicular
traffic.
E. Grantee shall at all times employ ordinary care and shall install and
maintain in use commonly accepted methods and devices preventing failures and
accidents which may be likely to cause damage, injury or nuisance to the public. Upon
request, Grantee will provide information to City regarding items of quality control for
installation and maintenance activities performed by Grantee or its authorized
subcontractors.
F. Upon request, Grantee shall work with City to establish guidelines
regarding the location and placement of the System to provide the most judicious use of
available space in Streets and Public Property.
7.02 Construction of Facilities.
A. The System hereafter constructed or installed by Grantee, and all
easements and rights-of-way hereafter obtained by Grantee, shall be located so as to
cause as little interference with the public use of the Streets, and other Public Property as
is reasonably possible, and all such facilities shall be maintained in good repair and
condition. Facilities located on, over, under or within the property of City or private
property shall be constructed, installed and maintained in accordance with all applicable
City ordinances, rules, regulations and requirements. In the event the construction,
installation, repair or maintenance of any of the System necessitates the removal of trees
or other vegetation, such trees and vegetation shall be replaced to the extent possible
promptly upon the conclusion of the work performed or at such later time as the City may
designate. In the event such trees and other vegetation cannot be replaced at the same
location, Grantee shall install an equivalent amount of trees vegetation at such other
location as the City may designate. Any determination by Grantee that the replacement
of tree(s) is not possible shall require prior approval of City.
B. Except in cases of an emergency, Grantee shall not install, move, alter,
repair, relocate or remove any of its underground System in or from any Street or Public
Property, or dig, cut or otherwise disturb the surface of any public Street or Public
Property, unless prior written notice of its intention to do so is given to City's Director of
Public Works or his designee no less than three (3) business days prior to the time such
8747942 14
work commences, and permission to perform such work is granted or waived by the
Director or his designee or a permit authorizing such work is obtained, which permit shall
not be unreasonably withheld. Such permission or permit shall, whether or not expressly
stated in any given instance, be conditioned upon the work covered by the permit being
performed in compliance with the provisions of the Franchise and with all applicable City
ordinances, rules, regulations and requirements. The Director or his designee may, in
addition to any other requirement of law or provision of the Franchise, impose such
additional reasonable conditions, requirements or restrictions as will prevent or minimize
interference with or obstruction of the Streets and Public Property, ensure the prompt and
complete restoration of Streets and Public Property damaged, disturbed or altered by
work performed by or on behalf of Grantee, or otherwise preserve, protect and promote
the public health, safety and welfare.
C. Grantee may perform emergency work which is necessary to ensure the
public health, safety or welfare, prior to the issuance of a permit. In such cases, Grantee
shall provide notice to City, except if the provision of such notice is not reasonably
possible, as soon as practicable, and in any case no later than two (2) working days after
the commencement of work.
D. Whenever Grantee proposes to install new underground conduits or
replace existing underground conduits within the City, it shall notify City as soon as
practical and shall allow City, at its own expense, to share any excess capacity within the
conduit of the Grantee or to lay its own conduit therewith, provided that such action by
City will not unnecessarily interfere with Grantee's facilities or delay the
accomplishment of the project.
E. City shall have the right at Grantee's expense to perform reasonable and
necessary inspection of all construction work performed on Public Property or Streets
pursuant to the requirements of Section 4.03.
F. Nothing contained in this Franchise shall be construed to give Grantee the
authority to enter upon or work on private property in areas where such entry or work is
not authorized pursuant to this Franchise or other legal instrument without the permission
of the property owner, tenant or authorized agent.
7.03 Repair of Streets and Property. Grantee and its contractors shall comply with all
ordinances of City pertaining to work on Streets, Public Property or private property.
Any and all Streets, Public Property or private property that are disturbed or damaged
during the construction, repair, replacement, relocation, operation, maintenance,
reconstruction or removal of the System, or any portion thereof, shall be promptly
repaired by Grantee, at its expense, to a condition as good as that prevailing prior to
Grantee's work. Any damage caused to the property of building owners or users or any
other Person as a result of any action or omission by Grantee or its contractors shall be
promptly and fully repaired by Grantee.
7.04 Use of Existing Poles. No poles, conduits, or other wire -holding structures shall
be erected or installed by Grantee on City's property without prior approval of City with
8747942 15
regard to the location, height, type and other pertinent aspects, which approval shall not
be unreasonably withheld. City may require Grantee to provide written justification
should the use of such poles and other wire -holding structure be solely for the purpose of
supporting Grantee's System. The location of any pole, conduit or wire -holding structure
of Grantee on City's property shall not be a vested right and such poles, conduits or other
structures shall be removed or modified by Grantee at its own expense upon reasonable
request of City.
7.05 Undergrounding of Cable. Cable shall be installed underground at Grantee's
expense where both the existing telephone and electrical utilities are already underground
or when required by City ordinance, including, without limitation, Section 5.10 of the
Subdivision Ordinance or successor provision. Grantee shall place cable underground in
newly platted areas in concert with both the telephone and electrical utilities, unless this
requirement is waived or modified by City. Grantee shall be required to convert
overhead lines to underground, at Grantee's expense, if and when electric and telephone
overhead utilities in the same area are converted to underground; provided, however, that
where public funds are available to reimburse right-of-way occupants for such
relocations, Grantee shall be permitted access to such funds on a non-discriminatory
basis.
7.06 Reservation of Street Rights.
A. Nothing in this Franchise shall be construed to prevent City from
constructing, maintaining, repairing or relocating sewers; constructing, grading, paving,
maintaining, repairing, relocating and/or altering any Street; constructing, laying down,
repairing, maintaining or relocating any water mains; or constructing, maintaining,
relocating, or repairing any sidewalk or other public work.
B. All such work shall be done, insofar as practicable in such a manner as not
to obstruct, injure or prevent the free use and operation of the poles, wires, conduits,
conductors, pipes or appurtenances of Grantee.
C. If any such property of Grantee shall interfere with the construction,
relocation, maintenance or repair of any Street or public improvement, whether it be
construction, repair, maintenance, removal or relocation of a sewer, public sidewalk,
water main, Street or any other public improvement, forty-five (45) days written notice
shall be given to Grantee by City and all such poles, wires, conduits or other facilities
shall be removed or replaced by Grantee in such manner and within such reasonable time
as may be directed by City so that the same shall not interfere with the said public work
of City, as determined by City, and such removal or replacement shall be at the sole
expense of Grantee (subject to the availability of public funds to reimburse right-of-way
occupants for such removal or replacement to which Grantee shall have access on a non-
discriminatory basis); provided, however that the City's failure to give the notice in strict
compliance with the time limits set forth herein shall not relieve Grantee of the obligation
to pay the cost of removal or replacement . In the event such construction, relocation,
maintenance or repair must be commenced within forty-five (45) days, City shall give
Grantee notice thereof at the earliest practicable time.
8747942 16
D. In the event Grantee fails to timely remove or replace any of its facilities
pursuant to this section, the City may remove or replace such facilities and charge the
reasonable cost thereof to Grantee.
E. Nothing contained in this Franchise shall relieve any Person or entity,
including City from liability arising out of the failure to exercise reasonable care to avoid
injuring Grantee's System.
7.07 Trimming of Trees. Grantee shall have the authority to trim trees upon and
hanging over Streets, and Public Property in the City so as to prevent the branches of
such trees from coming in contact with the System of Grantee; provided, however, that
all trimming on Streets or Public Property shall be done in accordance with applicable
City ordinances.
7.08 Street Vacation or Abandonment. In the event City determines to vacate, abandon
or discontinue use of any Street or portion thereof used by Grantee, City shall notify
Grantee as soon as reasonably practicable.
7.09 Movement of Facilities. In the event it is necessary temporarily to move or
remove any of Grantee's wires, cables, poles, or other facilities placed pursuant to this
Franchise, in order to lawfully move a large object, vehicle, building or other structure
over the Streets in the City, upon ten (10) days notice by City to Grantee, Grantee shall
move its facilities as may be required to facilitate such movements, at the expense of the
requesting party, payment to be made in advance. There shall be no charge to City for
such removal. Any Service Interruption provisions of this Franchise shall not apply in
the event that the removal of Grantee's wires, cables, poles or other facilities results in
temporary Service Interruptions.
SECTION 8. OPERATION AND REPORTING PROVISIONS.
8.01 Financial Books and Records. The City shall have the right to inspect original
records, upon reasonable notice and during Normal Business Hours, or require Grantee to
provide within a reasonable time copies of any records maintained by Grantee which
relate to System operations including specifically Grantee's accounting and financial
records. City acknowledges that some of the records which may be provided by Grantee
may be classified as confidential and therefore may subject Grantee to competitive
disadvantage if made public. City shall therefore maintain the confidentiality of any and
all records provided to it by Grantee which are not required to be made public pursuant to
applicable laws; however, that Grantee shall be required to designate such of the records
as it desires to be kept confidential and to notify the City of the provision of law that
allows such records to be withheld from public inspection. Grantee shall produce such
books and records for City's inspection at Grantee's local office located within thirty (30)
miles of the City or at such other mutually agreed upon location within the City.
8.02 Communications with Regulatory Agencies. The results of any tests required to
be filed by Grantee with the FCC shall upon request of the City also be filed with the City
or its designee within ten (10) days of such request.
874794v2 17
8.03 Annual Report. Within ninety (90) days of the end of Grantee's fiscal year,
including the fiscal year in which the Franchise becomes effective, Grantee shall file with
City an annual report containing the following information regarding the System:
A. A financial statement verifying total Gross Revenues prepared in
accordance with generally accepted accounting principles and certified by a financial
officer of Grantee.
B. A summary of the previous year's activities in the development of the
System, including, but not limited to, services begun or discontinued during the reported
year.
C. A current copy of the Subscriber service agreement.
D. Changes, if any, in the ownership structure provided pursuant to Section
15.02.
E. A summary of the Complaints received during the reported year, by
category, and a discussion of any unresolved Complaints.
8.04 Requested Reports.
A. Upon request, Grantee shall provide City with a written quarterly report
evidencing Grantee's compliance with the customer standards found in Section 9 of this
Franchise. Such report shall be provided within forty-five (45) days following the end of
a given quarter. In the event the City has alleged that the Grantee is in violation of the
customer service standards, such report shall be submitted within fifteen (15) days of the
end of the quarter following such allegation until such alleged violation is resolved by the
parties. Grantee shall be permitted to submit raw quarterly statistics from its Hampton
Roads Regional Call Center to comply with the reporting requirement. Grantee reserves
the right to revise such raw statistics at a later date to reflect periods when the system
may not have been operating under Normal Operating Conditions.
B. City and Grantee mutually agree that Grantee shall provide such other
reasonable reports requested by City with respect to Grantee's operations pursuant to this
Franchise at the times and forms prescribed by the City.
8.05 Mapping. Grantee shall furnish the City with two (2) complete sets of route
maps, drawn to scale and certified to the City as accurately depicting the actual location
of all Cable System routes and shall include a digitized map(s) in both printed and
electronic form readable by the current version of AutoCAD. The digitized map shall be
tied to the Virginia State Plane Coordinate System and tied to the City's Survey Control
monuments and geographic information. Grantee shall, upon request, provide updated
routes maps. As used herein, "route maps" mean maps that show where Grantee's Cable
System is located in the Public Ways and that delineate the above ground and
underground portions of the Cable System.
874794v2 18
8.06 Annual Evaluation Sessions. City may require annual evaluation sessions during
the term of this Franchise; provided however, that there shall not be more than one (1)
evaluation session during any calendar year. Topics which may be discussed include, but
are not limited to, Channel capacity, System performance, programming, the PEG access
Channel programming, municipal use of cable, Subscriber Complaints, judicial rulings,
FCC rulings and any other topics City or Grantee deem relevant. During each evaluation
session, Grantee shall fully cooperate with City and provide without cost such readily
available information and documents as City may reasonably request.
SECTION 9. CONSUMER PROTECTION PROVISION.
9.01 Grantee Office. Grantee shall maintain a convenient local customer service and
bill payment location in the City where Subscribers can receive face-to-face service. The
facility shall be adequately staffed in order to address customer inquiries, receive bill
payments and perform equipment exchanges. The facility shall be open during Normal
Business Hours. Grantee shall maintain at least one (1) drop box or payment kiosk
within the Service Area for receiving Subscriber payments after hours.
9.02 Interruption of Service.
A. Grantee shall render efficient Service, make repairs promptly and interrupt
service only for good cause and for the shortest time possible. Such interruptions to the
extent possible, shall be preceded by notice to City and Subscribers, and shall occur
during periods of minimum use of the System.
B. If Grantee's Cable Service is interrupted or discontinued for twenty-four
(24) or more consecutive hours, a Subscriber, upon request, shall be entitled upon
notification to Grantee of a credit of credited pro rata for such interruption. Credits shall
be issued no later than the Subscriber's next billing cycle following the determination
that a credit is warranted. For this purpose, every month will be assumed to have thirty
(30) days.
9.03 Rebate Policy. In the event a Subscriber establishes to terminate Service and
receives less than one (1) full month of Service, Grantee shall prorate the monthly rate on
the basis of the number of days in the period for which Service was rendered to the
number of days in the billing period.
9.04 Subscriber Service Information. Grantee shall provide written Service
information to each Subscriber (including the City and other recipients of complimentary
Service) upon Installation of Service and at least once during each calendar year. This
information shall include the following:
A. Products and Services offered.
B. Prices and options for programming Services and conditions of
subscription to programming and other services;
C. Installation and service maintenance policies;
874794v2 19
D. Instructions on how to use the Cable Service;
E. Channel positions of the programming carried on the System; and
F. Billing and Complaint procedures, including the address and telephone
number of the City.
9.05 Notice of Changes. Grantee shall provide each Subscriber and City notice of any
programming changes, Channel changes, or rate changes over which Grantee has control
a minimum of thirty (30) days prior to such actions.
9.06 Late Fees. Grantee shall not impose a late charge on a Subscriber until after the
Service has been fully provided and, as of the due date of the bill notifying the Subscriber
of an unpaid balance, the bill remains unpaid. Late fees may not exceed the actual costs
to Grantee of late payment of bills and the servicing and collecting of such accounts.
9.07 Grantee shall also provide the necessary facilities, equipment and personnel to
comply with the following consumer protection standards under Normal Operating
Conditions:
A. Cable System office hours and telephone availability:
1. Grantee will maintain a local, toll-free or collect call telephone
access line which will be available to its Subscribers twenty-four (24) hours a day,
seven (7) days a week.
a. Trained Grantee representatives will be available to
respond to customer telephone inquiries during Normal Business Hours.
b. After Normal Business Hours, the access line may be
answered by a service or an automated response system, including an
answering machine. Inquiries received after Normal Business Hours must
be responded to by a trained Grantee representative on the next business
day.
2. Under Normal Operating Conditions, telephone answer time by a
customer representative, including wait time, shall not exceed thirty (30) seconds
when the connection is made. If the call needs to be transferred, transfer time
shall not exceed thirty (30) seconds. These standards shall be met no less then
ninety percent (90%) of the time under Normal Operating Conditions, measured
on a quarterly basis.
3. Grantee shall acquire equipment and/or perform surveys to
measure compliance with the telephone answering standards above.
4. Under Normal Operating Conditions, the customer will receive a
busy signal less than three percent (3%) of the time.
8747942 20
5. Customer service center and bill payment locations will be open at
least during Normal Business Hours.
B. Installations, Outages and Service Calls. Under Normal Operating
Conditions, each of the following four (4) standards will be met no less than ninety-five
percent (95%) of the time measured on a quarterly basis:
1. Standard Installations will be performed within seven (7) business
days after an order has been placed. "Standard" Installations are those that are
located up to one hundred fifty (150) feet from the existing distribution system.
2. Excluding conditions beyond the control of Grantee, Grantee will
begin working on "Service Interruptions" promptly and in no event later than
twenty-four (24) hours after the interruption becomes known. Grantee must begin
actions to correct other Service problems the next business day after notification
of the Service problem.
3. The "appointment window" alternatives for Installations, Service
calls, and other Installation activities will be either a specific time or, at
maximum, a four (4) hour time block during Normal Business Hours. (Grantee
may schedule Service calls and other Installation activities outside of Normal
Business Hours for the express convenience of the customer.)
4. Grantee may not cancel an appointment with a customer after the
close of business on the business day prior to the scheduled appointment.
5. If Grantee's representative is running late for an appointment with
a customer and will not be able to keep the appointment as scheduled, the
customer will be contacted. The appointment will be rescheduled, as necessary,
at a time which is convenient for the customer.
C. Communications between Grantee and Subscribers:
Billing:
a. Bills will be clear, concise and understandable. Bills must
be fully itemized, with itemizations including, but not limited to, basic and
premium Service charges and equipment charges. Bills will also clearly
delineate all activity during the billing period, including optional charges,
rebates and credits.
b. In case of a billing dispute, the Grantee must respond to a
written Complaint from a Subscriber within thirty (30) days.
2. Refunds: Refund checks will be issued promptly, but no later than
either:
874794v2 21
a. The Subscriber's next billing cycle following resolution of
the request or thirty (30) days, whichever is earlier, or
b. The return of the equipment supplied by Grantee if Service
is terminated.
3. Credits: Credits for Service will be issued no later than the
Subscriber's next billing cycle following the determination that a credit is
warranted.
SECTION 10. GENERAL FINANCIAL AND INSURANCE PROVISIONS.
10.01 Payment to City.
A. During the term of this Franchise, Grantee shall pay to City an annual
amount equal to five percent (5%) of its Gross Revenues, or such other amounts as are
subsequently permitted by federal statute. Notwithstanding the provisions of Virginia
Code § 15.2-2108, et seq., Grantee shall pay a Franchise Fee consistent with this
provision until December 31, 2006, or upon the issuance of an amended and restated
Franchise to Grantee by the City pursuant to Virginia Code § 15.2-2108.26, whichever is
later.
B. Payments due City under this provision shall be computed at the end of
each quarter of a year for that quarter. Payments shall be due and payable for each
quarter or a portion of a quarter on January 31, April 30, July 31 and October 31. Each
payment shall be accompanied by the Franchise Fee Quarterly Report set forth in Exhibit
C showing the basis for the computation.
C. No acceptance of any payment shall be construed as an accord that the
amount paid is in fact the correct amount, nor shall such acceptance of payment be
construed as a release of any claim City may have for further or additional sums payable
under the provisions of this Franchise. All amounts paid shall be subject to audit and
recomputation by City. In the event the City should conduct a review of Grantee's books
and records pursuant to Section 8.01 of this Franchise and such review indicates a
Franchise Fee underpayment of three percent (3%) or more, the Grantee shall assume all
reasonable documented costs of such audit, and pay same upon demand by the City.
Upon receipt of the final Franchise Fee Quarterly Report for 2006, the City shall have
sixty (60) days to conduct an audit of Grantee's 2006 Franchise Fee payments and shall
thereafter have no further right to audit Grantee's 2006 Franchise Fee payments.
D. In the event any payment is not made on the due date, interest on the
amount due shall accrue from such date at the then current Prime Rate as determined by
Chase Manhattan Bank, N.A. until paid.
10.02 Performance Bond.
A. Grantee shall furnish and file with the City a performance and payment
bond the sum of Four Hundred Thousand and No/100 Dollars ($400,000). The bond
874794v2 22
shall be conditioned upon the faithful performance of Grantee of all terms and conditions
of this Franchise. The rights reserved to City with respect to the bond are in addition to
all other rights City may have under the Franchise or any other law.
B. The bond shall be subject to the approval of City Attorney and shall
contain the following endorsement:
"It is hereby understood and agreed that this bond may not be cancelled
without the consent of the City until sixty (60) days after receipt by the
City by registered mail, return receipt requested, of a written notice of
intent to cancel or not to renew."
10.03 Letter of Credit.
A. At the time this Franchise is accepted, Grantee shall provide to City an
irrevocable letter of credit in a form acceptable to the City Attorney in the principal
amount of Fifty Thousand and No/100 Dollars ($50,000).
B. The letter of credit shall serve as security for:
1. The faithful performance by Grantee of all the terms and
conditions of the Franchise;
2. Any expenditure, damage or loss incurred by City occasioned by
Grantee's unexcused or uncured failure to comply with all rules, regulations,
orders, permits and other directives of City issued pursuant to this Franchise;
3. The payment by Grantee of all lawful liens, taxes, damages,
claims, costs or expenses which City has been compelled to pay or has incurred
by reason of any act or default of Grantee under this Franchise and all other
payments due City from Grantee pursuant to this Franchise; and
4. The loss of any payments required to be made by Grantee to City
which would have been received by City but for Grantee's failure to perform its
obligations pursuant to this Franchise, during the period of time between
Grantee's unexcused or uncured failure to perform and the date in which City
takes over, or authorized any other Person to take over, the construction operation
or maintenance of the System necessitated by such failure.
C. Provision shall be made to permit City to make draws against the letter of
credit. Grantee shall not use the letter of credit for other purposes and shall not assign,
pledge or otherwise use this letter of credit as security for any purpose.
D. Within five (5) days after notice to it that any amount has been drawn by
City against the letter of credit pursuant to this section, Grantee shall restore such letter of
credit to the required amount.
874794v2 23
E. If Grantee fails to repay to City any damages, costs or expenses which
City shall be compelled to pay by reason of any act or default of Grantee in connection
with this Franchise, or fails, after thirty (30) days' notice of such failure by City, to
comply with any provision of the Franchise which City reasonably determines can be
remedied by an expenditure of the security, City may then seek to withdraw such funds
from the letter of credit.
10.04 Liquidated Damages from Letter of Credit. In addition to any other remedies
provided herein, City and Grantee understand and agree that the failure to comply with
any time and performance requirements set forth in this section will result in damage to
the City and that it is and will be impracticable to determine the actual amount of such
damage in the event of delay or non-performance. Accordingly, as a result of any acts or
omissions by Grantee, the City may draw from the letter of credit the following
liquidated damages:
A. For failure to provide a System meeting the minimum requirements set
forth in Section 5 of this Franchise, the liquidated damage shall be Two Hundred and
No/ 100 Dollars ($200.00) per day for each day or part there of, such failure occurs or
continues, unless such schedule is extended as set forth in Section 14.11.
B. For failure to test, analyze and report on the performance of the System
following a reasonable request by City pursuant to Sections 5.07 of this Franchise, the
liquidated damage shall be Two Hundred and No/ 100 Dollars ($200.00) per day.
C. For failure to provide the access Channels and programming origination
points in accordance with Section 6.07 of this Franchise, the liquidated damage shall be
Three Hundred and No/100 ($300.00) per day for each day, or part thereof, such breach
occurs or continues.
D. For failure of Grantee to comply with the construction, operation or
maintenance standards set forth in Section 7 of this Franchise, or the conditions of any
permits issued by the City to disturb Streets, fix Streets, or other terms or conditions
placed on Grantee's construction activities, the liquidated damage shall be Two Hundred
and No/100 Dollars ($200.00) per day.
E. For failure to provide data, documents, reports or information to cooperate
with City pursuant to Section 8 of this Franchise, the liquidated damage shall be Two
Hundred Dollars and No/100 Dollars ($200.00) per day.
F. For failure to maintain a local payment capability pursuant to Section 9.01
of this Franchise, the liquidated damage shall be One Hundred Fifty and No/100 Dollars
($150.00) per day for each day, or part thereof, such breach occurs or continues.
G. For failure to comply with the customer service standards measured on a
quarterly basis contained in Section 9.08 of this Franchise, the liquidated damage shall be
Three Thousand and No/100 Dollars ($3,000.00) per calendar quarter for each
subsequent quarter of non-compliance.
874794v2 24
H. For failure to obtain or maintain the performance bond, letter of credit or
insurance in a timely fashion pursuant to Section 10 of this Franchise, the liquidated
damage shall be One Hundred Fifty and No/100 Dollars ($150.00) per day for each day,
or part thereof, such breach occurs or continues.
I. For failure to comply with the system transfer provisions pursuant to
Section 12 of this Franchise, the liquidated damage shall be Two Hundred Fifty and
No/100 Dollars ($250.00) per day for each day, or part thereof, such failure occurs or
continues, measured from the date of the closing of the transaction in question.
10.05 Procedure for Imposition of Liquidated Damages.
A. Whenever the City finds that Grantee has violated one (1) or more terms,
conditions or provisions of this Franchise, for which relief is available against the Letter
of Credit, a written notice shall be given to Grantee informing it of such violation or
liability. The written notice shall describe in reasonable detail the specific violation so as
to afford Grantee an opportunity to remedy the violation. Grantee shall have thirty (30)
days subsequent to receipt of the notice in which to correct the violation before the City
may resort to the Letter of Credit. Grantee may, within seven (7) days of receipt of
notice, notify the City that there is a dispute as to whether a violation or failure has, in
fact, occurred. Such notice by Grantee to the City shall specify with reasonable detail the
matters disputed by Grantee and shall stay the running of the above-described time.
1. The City or its designee shall hear Grantee's dispute at a meeting
called in a timely manner. Grantee shall be afforded notice of the meeting not
less than ten (10) business days prior to the meeting and afforded an opportunity
to participate in and be heard at this meeting, including the opportunity to
introduce evidence. The City or its designee shall supplement the decision with
written findings of fact.
2. If after hearing the dispute the claim is upheld by the City, Grantee
shall have ten (10) business days from notice of such a determination within
which to file an appeal with an appropriate state or federal court or agency.
B. The time for Grantee to correct any violation or liability may be extended
by the City if the necessary action to correct such violation or liability is of such a nature
or character to require more than thirty (30) days within which to perform, provided
Grantee commences the corrective action within the thirty (30) day period and thereafter
uses reasonable diligence to correct the violation or liability. City and Grantee agree that
for violations involving Section 9.02(A) and (B) of this Franchise, Grantee shall be given
a calendar quarter to cure such violation.
C. The rights reserved to the City with respect to the Letter of Credit are in
addition to all other rights of the City whether reserved by this Franchise or authorized by
law, and no action, proceeding or exercise of a right with respect to such Letter of Credit
shall affect any other right the City may have.
8747942 25
10.06 Damages and Defenses.
A. Grantee shall be responsible for, defend, indemnify and hold City
harmless from and against any damage or loss to any real or personal property of City or
any Person, and for injury to or death of any Person and any officer, employee or agent of
City arising out of or in connection with the construction, operation, maintenance, repair,
or removal of, or any other action of Grantee with respect to, the System, any service or
related activity, or the distribution of any service over the System.
B. City, its officers, employees and agents shall not be liable for any loss or
damage to any real or personal property of any Person, or for any injury to or death of
any Person, arising out of or in connection with the construction, operation, maintenance,
repair or removal of, or other action or event with respect to the System, except as may
result from the acts of City, its officers, employees and its agents.
C. Grantee shall be responsible for, defend, indemnify, and hold harmless
City, its officers, employees and agents, from and against any and all liability, damages,
costs and expenses (including reasonable attorneys' fees) arising out of or in connection
with the construction, operation, maintenance, repair, or removal of the System, or as a
result of the procedures for granting this Franchise or of Grantee's exercise of this
Franchise.
D. In order for City to assert its rights to be indemnified, defended, and held
harmless, City must:
1. Promptly notify Grantee of any claim or legal proceeding which
gives rise to such right;
2. Afford Grantee the opportunity to participate in and fully control
any compromise, settlement or other resolution or disposition of such claim or
proceeding; unless, however, City reasonably determines that its interests cannot
be represented in good faith by Grantee; and
3. Fully cooperate with the reasonable requests of Grantee, at
Grantee's expense, in its participation in, and control, compromise, settlement or
resolution or other disposition of, such claim or proceeding subject to Section
10.06(D)(2).
E. In the event City reasonably determines that its interests cannot be
represented in good faith by Grantee, Grantee shall pay all reasonable expenses incurred
by City in defending itself with regard to all damages mentioned in Section 10.06(A)
above. These expenses shall include all out-of-pocket expenses, such as attorney's fees
and costs.
10.07 Insurance.
A. As a part of the indemnification provided by Section 10.06, but without
limiting the foregoing, Grantee shall file with its acceptance of this Franchise, and at all
874794v2 26
times thereafter maintain in full force and effect at its sole expense, an acceptable policy
or policies of liability insurance, including comprehensive general liability insurance,
products/completed operations liability, personal injury liability, broad form property
damage, contractual liability, automobile liability (owned, non -owned and hired
automobiles) and worker's compensation. Except for worker's compensation and for
liabilities arising from this Franchise, the policy or policies shall name as additional
insured, City, and in their capacity as such, its officers, agents and employees. Grantee
will provide comprehensive liability coverage and automobile liability coverage with a
combined single limit of not less than One Million and No/100 Dollars ($1,000,000), and
an Excess Liability Policy with a combined single limit of not less than Two Million
Dollars and No/100 ($2,000,000). The insurance policy or policies shall contain
contractual liability insurance naming Grantee, and shall insure against the types of
liabilities covered by the indemnification and hold harmless provision of Section 10.06.
B. The policy or policies of insurance shall be maintained by Grantee in full
force and effect during the entire term of the Franchise. Each certificate of insurance
shall contain a statement on its face that the insurer will not cancel the policy or fail to
renew the policy, whether for nonpayment of premium, or otherwise, and whether at the
request of Grantee or for other reasons, except after thirty (30) calendar days' advance
written notice mailed by the insurer to City and that such notice shall be transmitted
postage prepaid, and return receipt.
10.08 Work Performed by Others.
A. All provisions of this Franchise shall remain the responsibility of Grantee,
and Grantee shall hold City harmless from and against any claims or liability arising out
of work performed by Persons or entities other than Grantee.
B. All provisions of this Franchise shall apply to any subcontractor or others
performing any work or services pursuant to the provisions of this Franchise.
C. Any subcontractor or other individual or entity performing any work or
services pursuant to the provisions of this Franchise shall fully identify all of its vehicles,
and equipment by decals and signs. All employees and agents of subcontractors and
others performing any work or services pursuant to the provisions of this Franchise shall
carry badges identifying them as contractors for Grantee.
10.09 City's Right to Revoke. In addition to all other rights which City has pursuant to
law or equity, City reserves the right to revoke, terminate or cancel this Franchise, and all
rights and privileges pertaining thereto, in the event that in the judgment of City:
A. Grantee violates and fails to cure any material provision of this Franchise
to the detriment of City; or
B. Grantee attempts to evade any of the material provisions of this Franchise;
or
8747942 27
C. Grantee is found to have practiced fraud or deceit upon City or a
Subscriber by a court of competent jurisdiction; or
D. Grantee becomes insolvent, unable, or unwilling to pay its just debts, or is
adjudged as bankrupt; or
E. Grantee knowingly misrepresents a material fact in the application for the
Franchise, which is relied upon by City.
10.10 Procedures for Revocation.
A. City shall provide Grantee with a written notice of the cause for revocation
and the intent to revoke and shall allow Grantee thirty (30) days subsequent to receipt of
the notice in which to correct the violation or to provide adequate assurance of
performance in compliance with the Franchise. City shall provide Grantee with written
findings of fact which are the basis of the revocation.
B. Grantee shall be provided the right to a public hearing affording due
process, including the right to present evidence and call witnesses before City prior to
revocation.
C. After the public hearing and upon determination by City to revoke the
Franchise, Grantee shall have a period of thirty (30) days from the date of City's
determination within which to file an appeal de nova with an appropriate state or federal
court or agency.
D. During the appeal period, the Franchise shall remain in full force and
effect.
SECTION 11. FORECLOSURE, RECEIVERSHIP AND ABANDONMENT
11.01 Foreclosure. Upon the foreclosure or other judicial sale of the System, Grantee
shall notify City of such fact and such notification shall be treated as a notification that a
change in control of Grantee has taken place, and the provisions of this Franchise
governing the consent to transfer or change in ownership shall apply without regard to
how such transfer or change in ownership occurred.
11.02 Receivership. City shall have the right to cancel this Franchise subject to any
applicable provisions of federal or Virginia law, including the Bankruptcy Act, one
hundred twenty (120) days after the appointment of a receiver or trustee to take over and
conduct the business of Grantee, whether in receivership, reorganization, bankruptcy or
other action or proceeding, unless such receivership or trusteeship shall have been
vacated prior to the expiration of said one hundred twenty (120) days, or unless:
A. Within one hundred twenty (120) days after his election or appointment,
such receiver or trustee shall have fully complied with all the provisions of this Franchise
and remedied all defaults thereunder; and
8747942 28
B. Such receiver or trustee, within said one hundred twenty (120) days, shall
have executed an agreement, duly approved by the Court having jurisdiction in the
premises, whereby such receiver or trustee assumes and agrees to be bound by each and
every provision of this Franchise.
11.03 Abandonment. Grantee may not abandon any portion of the System without
having first given three (3) months written notice to City. Grantee may not abandon any
portion of the System without compensating City for damages resulting from the
abandonment. City may recover from Grantee, its parent company or subsidiaries for the
reasonable cost of removal of the System.
SECTION 12. REMOVAL, TRANSFER AND PURCHASE.
12.01 Removal After Expiration and Non -Renewal. or Revocation.
A. At the expiration of the term for which the Franchise is granted, and
absent renewal or extension, or upon its revocation, as provided for, City shall have the
right to require Grantee to remove, at Grantee's expense, all or any portion of the System
from all Streets and Public Property within the City. In so removing the System, Grantee
shall refill and compact at its own expense, any excavation that shall be made and shall
leave all Streets, Public Property and private property in as good a condition as that
prevailing prior to Grantee's removal of the System, and without affecting, altering or
disturbing in any way electric, telephone or utility, cables, wires or attachments. City
shall have the right to inspect and approve the condition of such Streets and Public
Property after removal. The letter of credit, insurance, indemnity and penalty provision
of the Franchise shall remain in full force and effect during the entire term of removal.
B. If, in the sole discretion of City, Grantee has failed to commence removal
of the System, or such part thereof as was designated, within thirty (30) days after written
notice of City's demand for removal is given, or if Grantee has failed to complete such
removal within one (1) year after written notice of City's demand for removal is given,
City shall have the right to exercise one (1) of the following options:
1. Declare all right, title and interest to the System to be in City with
all rights of ownership including, but not limited to, the right to operate the
System or transfer the System to another for operation by it; or
2. Declare the System abandoned and cause the System, or such part
thereof as City shall designate, to be removed at no cost to City. The cost of said
removal shall be recoverable from the letter of credit, indemnity and penalty
section provided for in the Franchise, or from, Grantee directly.
12.02 Sale or Transfer of Franchise.
A. No sale or transfer of the Franchise, or sale, transfer, or change of
ownership of or in Grantee, including, but not limited to, a change in Grantee's parent
corporation or any entity having a controlling interest in Grantee, the sale of a controlling
interest in the Grantee's assets, shall take place until a written request has been filed with
8747942 29
City requesting approval of the sale or transfer, and such approval has been granted or
deemed granted; provided, however, that said approval shall not be required where
Grantee grants a security interest in its Franchise and/or assets to secure an indebtedness
or where the Franchise is transferred to an Affiliate entity under the same common
control.
B. Any sale, transfer, exchange or assignment of stock in Grantee, or
Grantee's parent corporation or any other entity having a controlling interest in Grantee,
so as to create a new controlling interest therein, shall be subject to the requirements of
this Section 12.02. The term "controlling interest" as used herein is not limited to
majority stock ownership, but includes actual working control in whatever manner
exercised. In any event, as used herein, a new "controlling interest" shall be deemed to
be created upon the acquisition through any transaction or group of transactions of a legal
or beneficial interest of thirty percent (30%) or more by one Person.
C. The Grantee shall file, in addition to all documents, forms and information
required to be filed by applicable laws, the following:
1. All contracts, agreements or other documents that constitute the
proposed transaction and all exhibits, attachments, or other documents referred to
therein which are necessary in order to understand the terms thereof, subject to
confidentiality provisions of applicable laws; and
2. A list detailing all documents filed with any state or federal agency
related to the transaction including, but not limited to, the FCC, the FTC, the
FEC, the SEC or applicable state departments and agencies. Upon request,
Grantee shall provide City with a complete copy of any such document; and
3. Any other documents or information related to the transaction as
may be specifically requested by the City.
D. City shall have such time as is permitted by applicable laws in which to
review a transfer request.
E. In no event shall a sale, transfer, corporate change, or assignment of
ownership or control pursuant to subparagraph (A) or (B) of this section be approved
without the transferee becoming a signatory to this Franchise and assuming all rights and
obligations thereunder, and assuming all other rights and obligations of the transferor to
the City including, but not limited to, any adequate guarantees or other security
instruments required by the City (outlined in the example attached as Exhibit A attached
hereto).
F. No Franchise may be transferred if City determines Grantee is in
noncompliance of the Franchise unless an acceptable compliance program has been
approved by City. The approval of any transfer of ownership pursuant to this section
shall not be deemed to waive any rights of City to subsequently enforce noncompliance
issues relating to this Franchise even if such issues predated the approval, whether known
or unknown to City.
874794v2 30
SECTION 13. RIGHTS OF INDIVIDUALS PROTECTED.
13.01 Discriminatory Practices Prohibited. Grantee shall not deny Service, deny access,
or otherwise discriminate against Subscribers, programmers or general citizens on the
basis of race, color, religion, national origin, sex, age or handicap. Grantee shall comply
at all times with all other applicable federal, state and local laws, and all executive and
administrative orders relating to non-discrimination.
13.02 Subscriber Privacy. Grantee shall comply with the provisions of 47 U.S.C. § 551
as currently written and as may from time to time be subsequently amended, and with any
successor provision, however numbered.
SECTION 14. MISCELLANEOUS PROVISIONS.
14.01 Compliance with Laws. Grantee and City shall comply with all state and federal
laws and rules regarding cable television as they become effective. Grantee shall also
comply with all City ordinances, resolutions, rules and regulations of general
applicability heretofore or hereafter adopted or established during the entire term of the
Franchise.
14.02 Franchise Renewal. Any renewal of this Franchise shall be performed in
accordance with applicable federal, state and local laws and regulations.
14.03 Continuity of Service Mandatory. Upon expiration and non -renewal or the
termination of this Franchise, City may require Grantee to continue to operate the System
for an extended period of time not to exceed six (6) months. Grantee shall, as trustee for
its successor in interest, continue to operate the System under the terms and conditions of
this Franchise. In the event Grantee does not so operate the System, City may take such
steps as it, in its sole discretion, deems necessary to assure continued Service to
Subscribers.
14.04 Compliance with Federal, State and Local Laws.
A. If any federal or state law or regulation requires Grantee to perform any
service or act, or prohibits Grantee from performing any service or act, which may be in
conflict with the terms of this Franchise, then as soon as possible following Grantee's
knowledge thereof, Grantee shall notify City of the point of conflict believed to exist
between such law or regulation.
B. If any federal or state law or regulation permits Grantee to perform any
service or act, or permits Grantee to cease the performance of any service or act, which
may be to conflict with the terms of this Franchise, then as soon as possible following
Grantee's determination to exercise such permission, Grantee shall notify City of the
point of conflict believed to exist between such law or regulation.
C. If any term, condition or provision of this Franchise or the application
thereof shall, to any extent, be held to be invalid or unenforceable, the remainder hereof
and the application of such term, condition or provision other than those as to whom it
8747942 31
shall be held invalid or unenforceable shall not be affected thereby, and this Franchise
and all the terms, provisions and conditions hereof shall, in all other respects, continue to
be effective and to be complied with. In the event that such law, rule or regulation is
subsequently repealed, rescinded, amended or otherwise changed so that the provision
which had been held invalid or modified is no longer in conflict with the law, rules and
regulations then in effect, said provision shall thereupon return to full force and effect
and shall thereafter be binding on Grantee and City.
D. If any section, sentence, clause or phrase of this Franchise, or any part
thereof, is for any reason found to be inconsistent with the rules and regulations of the
FCC or invalid by a court of competent jurisdiction, such decision shall not affect the
validity of the remaining portions of this Franchise or any part thereof.
14.05 Nonenforcement by City. Grantee shall not be relieved of its obligation to
comply with any of the provisions of this Franchise by reason of any failure or delay of
City to enforce prompt compliance. Any waiver by City of a breach or violation of any
provision of this Franchise shall not operate as or be construed to be a waiver of any
subsequent breach or violation. However, City shall notify Grantee prior to City's
insistence on strict performance subsequent to any previously waived breach or delayed
compliance.
14.06 Administration of Franchise
A. City shall have continuing regulatory jurisdiction and supervision over the
System and Grantee's operation under the Franchise. City may issue such reasonable
rules and regulations concerning the construction, operation and maintenance of the
System as are consistent with the provisions of the Franchise. City reserves the right to
delegate and redelegate from time to time any of its rights and obligations under this
Franchise.
B. Grantee shall construct, operate and maintain the System subject to the
supervision of all the authorities of City who have jurisdiction in such matters and in
strict compliance with all laws, ordinances, and departmental rules and regulations
consistent with the provisions of the Franchise affecting the System.
14.07 No Recourse Against the City. Grantee shall have no recourse whatsoever against
City or its officials, agents or employees for any loss, costs, expense, or damage arising
out of any provision or requirement of this Franchise, or because of the enforcement of
the Franchise.
14.08 Rights Cumulative. All rights and remedies given to City and Grantee by this
Franchise shall be in addition to and cumulative with any and all other rights or remedies,
existing or implied, now or hereafter available to City and Grantee at law or in equity,
and such rights and remedies shall not be exclusive, but each and every right and remedy
specifically given by this Franchise or otherwise existing or given may be exercised from
time to time and as often and in such order as may be deemed expedient by City and
8747942 32
Grantee, and the exercise of one (1) or more rights or remedies shall not be deemed a
waiver of the right to exercise at the same time or thereafter any other right or remedy.
14.09 Incorporation of Attachments. The attachments to this Franchise consisting of
Exhibits A through D, as specifically incorporated herein and made a part hereof.
14.10 Captions. The paragraph captions and headings in this Franchise are for
convenience and reference purposes only and shall not affect in any way the meaning or
interpretation of this Franchise.
14.11 Calculation of Time. Where the performance or doing of any act, duty, matter,
payment or thing is required hereunder and the period of time or duration for the
performance or doing thereof is prescribed and fixed herein, the time shall be computed
so as to exclude the first and include the last day of and prescribed or fixed period or
duration of time. When the last day of the period falls on a Saturday, Sunday or legal
holiday, that day shall be omitted from the computation. Unless otherwise specifically
stated, the calculation of days shall be based upon calendar and not business days.
14.12 Confidentiality. To the fullest extent allowed by law, City shall keep confidential
any information identified as confidential by Grantee, and provided to City by Grantee
pursuant to this Franchise.
14.13 Force Majeure. In the event Grantee unavoidably fails to comply with any
deadline or schedule contained herein, or unavoidably fails to perform any of the terms
and conditions contained herein, without any fault or negligence of Grantee, or by any
cause beyond the reasonable control of Grantee, including, but not limited to,
unavoidable casualty, unavoidable delay in delivery of required materials, strikes,
embargoes, government orders or other requirements, acts of civil or military authorities,
acts of God or other emergency conditions, Grantee shall not be deemed in breach of this
Franchise and shall be entitled to an appropriate extension of applicable deadlines or
schedules.
SECTION 15. EFFECTIVE DATE AND TIME OF ACCEPTANCE.
15.01 Effective Date. This Franchise shall take effect on the day of
15.02 Time of Acceptance; Incorporation of Proposal; Exhibits.
A. Grantee shall accept this Franchise in a form and substance acceptable to
City within thirty (30) days of the adoption of this ordinance unless the time of
acceptance is extended by City. Such acceptance by Grantee shall be deemed the grant of
this Franchise for all purposes. In the event acceptance does not take place, this
Franchise shall be null and void.
B. With Grantee's acceptance of this Franchise, Grantee and City shall be
bound by all terms and conditions contained herein.
8747942 33
C. Within thirty (30) days of this acceptance, Grantee shall also deliver any
performance bond, letter of credit and insurance certificates required herein that have not
previously been delivered. Grantee shall also provide a chart showing the current
ownership structure of the company, including any parent entities.
D. Upon acceptance of this Franchise, Grantee shall be bound by all the terms
and conditions contained herein. Grantee shall provide all services and offerings
specifically set forth herein. Grantee acknowledges representations, adoption of this
made by Grantee, the obligations that all promises, offers, and inducements resulting in
the Franchise were freely and voluntarily and Grantee further acknowledges that of
Grantee contained herein are commercially practicable.
E. The Franchise shall be permanently kept and filed in the office of the City
Clerk and non -confidential portions of the originals or reproductions thereof shall be
available for inspection by the public during Normal Business Hours.
Passed and adopted by the City Council on thisX"' day of �� , 20 DC.
ATTEST: CITY OF VIRGINIA BE H, VIRGINIA
By: Gr.,C e , /�a/�.� By:
Its: C�./�i ,, ��/��/� Its: Mayor
Approved as to Cjontyee :
Dept. of Communications and
Information Technology
Approved as to Legal Sufficiency:
A I�
Office of City Atto ey
ACCEPTED: This Franchise is accepted, and we agree to be bound by its terms and
conditions.
Date: 200]0
SWORN TO BEFORE ME this
day ofDiam, 20(,1j.
NOTARY PUBLIC �—
COX COMMUNICATIONS HAMPTON
ROADS C
B
tvk,.,
Its:
8747942 34
EXHIBIT A CORPORATE GUARANTY EXAMPLE
THIS AGREEMENT is made this day of ,
20 , between ("Guarantor"), the City of Virginia Beach, Virginia
("Franchising Authority"), and
WITNESSETH
("Company").
WHEREAS, the Franchising Authority has entered into a Cable Television
Franchise Ordinance dated , 2005 with the Company
pursuant to Ordinance No. ("Franchise"), pursuant to which the Franchising
Authority has granted the Company a Franchise, to own, operate, and maintain a Cable
System ("System"); and
WHEREAS, Guarantor is the parent company of the Company and has a
substantial interest in the System and the conduct of the Company in complying with the
Franchise and any and all amendments thereof and any agreements related thereto, which
Franchise and amendments are hereby specifically referred to, incorporated herein, and
made a part hereof,
WHEREAS, Section 10.03 of the Franchise requires the Company, as principal,
to furnish a Fifty Thousand and No/100 Dollars ($50,000.00) letter of credit to ensure the
faithful payment and performance of the Company's obligations under the Franchise; and
WHEREAS, the Guarantor desires to provide its unconditional guaranty as part of
such security fund.
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Guarantor hereby unconditionally guarantees the due and punctual
payment and performance of all of the debts, liabilities and obligations of Company
contained in the Franchise ("Indebtedness").
This Franchise, unless terminated, substituted, or canceled, as provided herein,
shall remain in full force and effect for the duration of the term of the Franchise, except
as expressly provided otherwise in the Franchise.
Upon substitution of another Guarantor reasonably satisfactory to the Franchising
Authority, this Franchise may be terminated, substituted, or canceled upon thirty (30)
days prior written notice from Guarantor to the Franchising Authority and the Company.
Such termination shall not affect liability incurred or accrued under this Franchise
prior to the effective date of such termination or cancellation.
The Guarantor will not exercise or enforce any right of contribution,
reimbursement, recourse or subrogation available to the Guarantor against the Company
or any other Person liable for payment of the Indebtedness any collateral security
874794v2 A-1
therefor, unless and until all of the Indebtedness shall have been fully paid and
discharged.
The Guarantor will pay or reimburse the Franchising Authority for all costs and
expenses (including reasonable attorneys' fees and legal expenses) incurred by the
Franchising Authority in connection with the protection, defense or enforcement of this
guarantee in any arbitration, litigation or bankruptcy or insolvency proceedings.
Whether or not any existing relationship between the Guarantor and the Company
has been changed or ended and whether or not this guarantee has been revoked, the
Franchising Authority may, but shall not be obligated to, enter into transactions resulting
in the creation or continuance of Indebtedness, without any consent or approval by the
Guarantor and without any notice to the Guarantor. The liability of the Guarantor shall
not be affected or impaired by any of the following acts or things (which the Franchising
Authority is expressly authorized to do, omit or suffer from time to time, without notice
to or approval by the Guarantor): (i) any acceptance of collateral security, guarantors,
accommodation parties or sureties for any or all Indebtedness; (ii) any one or more
extensions or renewals of Indebtedness (whether or not for longer than the original
period) or any modification of the interest rates, maturities or other contractual terms
applicable to any Indebtedness; (iii) any waiver or indulgence granted to the Company,
any delay or lack of diligence in the enforcement of any Indebtedness, or any failure to
institute proceedings, file a claim, give any required notices or otherwise protect any
Indebtedness; (iv) any full or partial release of, settlement with, or agreement not to sue,
the Company or any other guarantor or other Person liable in respect of any Indebtedness;
(v) any discharge of any evidence of Indebtedness or the acceptance of any instrument in
renewal thereof or substitution therefor; (vi) any failure to obtain collateral security
(including rights of setoff) for Indebtedness, or to see to the proper or sufficient creation
and perfection thereof, or to establish the priority thereof, or to protect, insure, or enforce
any collateral security; or any modification, substitution, discharge, impairment, or loss
of any collateral security; (vii) any foreclosure or enforcement of any collateral security;
(viii) any transfer of any Indebtedness or any evidence thereof, (ix) any order of
application of any payments or credits upon Indebtedness; (x) any election by the
Franchising Authority under § 1111(b)(2) of the United States Bankruptcy Code.
The Guarantor waives presentment, demand for payment, notice of dishonor or
nonpayment, and protest of any instrument evidencing Indebtedness. The Franchising
Authority shall not be required first to resort for payment of the Indebtedness to the
Company or other Persons or their properties, or first to enforce, realize upon or exhaust
any collateral security for Indebtedness, before enforcing this guaranty. The Guarantor
will not assert, plead or enforce against the Franchising Authority any defense of
discharge in bankruptcy of the Company, statute of frauds, or unenforceability of the
Guaranty which may be available to the Company or any other Person liable in respect of
any Indebtedness, or any setoff available against the Franchising Authority to the
Company or any such other Person, whether or not on account of a related transaction.
Any notices given pursuant to this Franchise shall be addressed to the Guarantor
and Company at
8747942 A-2
and to the Franchising
Authority, Mayor and Members of the City Council, City of Virginia Beach, Virginia
IN WITNESS WHEREOF, the Company, Franchising Authority, and Guarantor
have executed this Corporate Guaranty as of the day, month and year first above written.
GUARANTOR:
By:
Its:
COMPANY:
By:
Its:
FRANCHISING AUTHORITY:
CITY OF VIRGINIA BEACH, VIRGINIA
Ron
Its:
874794v2 A-3
EXHIBIT B TECHNICAL STANDARDS
1. The Cable System shall be designed, constructed, routinely inspected, and
maintained to guaranty the Cable System meets or exceeds the requirements of the most
current applicable editions of the National Electrical Code (NFPA 70) and the National
Electrical Safety Code (ANSI C2).
2. General Requirements. Grantee shall use equipment used in high-quality,
reliable, modern Cable Systems of similar design.
3. General Description. The Cable System shall provide Subscribers with a
technically advanced and reliable Cable System. The System shall operate with a
minimum capability of 750 MHz of bandwidth, capable of delivering a minimum of
seventy-eight (78) Channels of programming. The System will be two-way active, and it
will have a return capacity of 37 MHz. The design will provide the benefits of proven
seventy-eight (78) Channel electronics while positioning the System for expansion of
bandwidth and Channel capacity as technology and future services develop.
4. Design. The design of the System shall be based upon a "Fiber to the node"
architecture with a minimum of four (4) fibers to each node site. This architecture will
deliver the signals by fiber optics directly to each neighborhood. With a neighborhood
group average of only one thousand (1000) homes, the resulting System will have
improved reliability while delivering a high quality picture. Grantee will place fiber optic
cables throughout the City, delivering the signals to an optical node placed in each
neighborhood area. There shall be no more than eight (8) active amplifiers in a cascade
from each node to the residential dwelling. The incorporation of stand-by power
supplies, strategically placed throughout the System including all hubs, will further
reduce the likelihood of Service Interruptions.
874794v2 B-1
EXHIBIT C FRANCHISE FEE QUARTERLY REPORT
QUARTER ENDED 1120
REVENUE
SOURCE
NUMBER OF
SUBSCRIBERS
GROSS REVENUE
5%
FRANCHISE FEE
YTD
Basic Cable Service
Expanded Basic
Premium services
Pay -Per -Channel
Pay -Per -View
Installation
Shopping Channels
Advertising Sales
Equipment Rental
Administrative Fees
Other Income
Other
TOTAL
REVENUE SOURCES MAY INCLUDE: [Conform to Cox services and practice — Cable Services
only.]
INSTALLATION:
Standard Installation Commonly occurring normal Installation
Additional Outlet Installation on additional sets within a Subscriber's home
FM Service Separate Installation of FM Service
VCR Installation of Converter to a VCR
Reconnection of Service Reconnection of cable to a Subscriber's address
A/B Switch Separate Installation of an A/B Switch
Relocation Moving an outlet within a Subscriber's home
Non -Standard Usually Installation of a commercial type of an account
Change of Service Charge for upgrading or switching a premium Service
BASIC CABLE SERVICE:
Basic Cable Service
Bulk Rates
Reduced Promotional Basic
Revenue derived from Basic Cable Service
Revenue derived from non-standard billings (i.e., apt. complex)
Revenue derived from a discounted Basic Cable Service
8747942 C-1
PAY-PER-VIEW:
All Movies Revenue derived from pay-per-view movies
Events Revenue derived from special events (i.e., concerts, boxing matches, etc.)
ADVERTISING:
Sales Revenue generated locally, regionally or nationally
Ad Production Revenue generated from the production of a locally produced commercial
Production Income Revenue generated from the production of training tapes, studio rentals,
personnel fees, or rental income from renting vans or equipment
Tape Duplication Revenue generated from duplication of L.O. or access tapes
Bill Stuffer Revenue generated as a result of providing a bill stuffer to an advertiser
OTHER:
Returned Check Fees Revenue generated from charges on returned checks
Pre -wired Cable Purchases Revenue generated from the sale of Cable Service to Subscribers who pre -wire
their home
Antenna Rental Any revenue derived from renting space on towers
A/B Switch Revenue generated from sale of an A/B Switch
Late Fee Revenue generated from receiving a late fee
OTHER:
DOES NOT INCLUDE:
Reimbursements Revenues from the Department of Transportation or other government entities
for mandatory relocations of Cable System. Revenue from employee
reimbursements for cash advances.
Verified and submitted this day of , 20 .
By:
Its:
8747942 C-2
EXHIBIT D PEG ORIGINATION POINTS AND SIGNAL PATH DIAGRAM
874794v2 D-1
Exhibit D
PEG Origination Points and Signal Path Diagrams
The following are drawings of the plant routing (Page D-1 2) and
electronics layout (Page D-1 3) for interconnection of the PEG Channels.
In the Plant Routing diagram the dotted line
[...... ] indicates fiber routing;
the fiber indicated by the dark line [ "Existing "S" Fiber"] is joint use
fiber bundles where fiber pairs have been dedicated to PEG transport; the
fiber indicated by the red line [ New Fiber'] is dedicated fiber from
splice points of the S,fiber ring to and from City buildings or insertion
points.
The Electronics Layout diagram demonstrates the order of interconnection
of the electronics to the fiber connection points for provision of the existing
PEG channels. Transport of the new digital signals [Sec. 6.07 A] to the
"MTC" will be on those same fibers with electronics yet to be specified.
Interconnection by other parties can only be achieved by a collocation of
that parties' equipment at the location of the "ATC" shown on Page D-1 2;
controllers and digital encoding for provision of the digital channels
addressed in Section 6.07 A, will be located at 5200 Cleveland Street,
Virginia Beach, VA.
Page D-1 1
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-29 -
Item V.K.5.a/b/c.
RESOLUTIONS/ORDINANCES ITEM #5523 7
Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED:
Ordinance to GRANT franchise agreements for Open Air Cafes in the Resort Area
a. 21 Fun, LLC t/a Sharx
b. TC JR, Inc. t/a T-Caspers Bar and Grill
c. Shrey, Inc. t/a Tropical Smoothie
Voting: 10-0 (By Consent)
Council Members Voting Aye:
Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S.
McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve,
Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson
Council Members Voting Nay.-
None
ay:
None
Council Members Absent:
James L. Wood
May 23, 2006
1 AN ORDINANCE GRANTING THREE
2 FRANCHISE AGREEMENTS FOR OPEN AIR
3 CAFES IN THE RESORT AREA
4 WHEREAS, by resolution adopted November 15, 1985, City
5 Council authorized the City Manager to promulgate Open Air Caf6
6 Regulations, which have been amended from time to time, for the
7 operation of open air caf6s on public property; and
8 WHEREAS, the regulations originally prohibited sidewalk
9 cafes on Atlantic Avenue between 15th and 24th streets; and
10 WHEREAS, Council adopted a resolution on March 23, 2004
11 establishing a pilot program to allow, on an experimental basis,
12 open air cafes on Atlantic Avenue between 20th and 23rd Streets;
13 and
14 WHEREAS, based upon the success of the pilot program,
15 Council adopted an ordinance on March 8, 2005 authorizing
16 sidewalk caf6s on Atlantic Avenue between 15th and 24th Streets;
17 and
18 WHEREAS, the City Council has traditionally granted initial
19 franchises for one-year terms; and
20 WHEREAS, if an open air caf6 is successfully operated
21 during the initial one-year term, the franchisee is given the
22 option of entering into a five-year franchise agreement; and
23 WHEREAS, 21 Fun, LLC t/a Sharx successfully operated an
24 open air caf6 last year pursuant to a one-year franchise
25 agreement and is seeking a five-year franchise agreement; and
26 WHEREAS, based upon 21 Fun, LLC t/a Sharx's successful
27 operation of an open air caf6, the Convention and Visitors
28 Bureau recommends that 21 Fun, LLC t/a Sharx be granted a five -
29 year franchise agreement; and
30 WHEREAS, TC JR, Inc. t/a T-Caspers Bar and Grill and Shrey,
31 Inc. t/a Tropical Smoothie are seeking one-year franchise
32 agreements; and
33 WHEREAS, the Convention and Visitors Bureau recommends that
34 TC JR, Inc. t/a T-Caspers Bar and Grill and Shrey, Inc. t/a
35 Tropical Smoothie be granted one-year franchise agreements.
36 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY
37 OF VIRGINIA BEACH:
38 That the City Council hereby grants a five-year franchise
39 agreement to 21 Fun, LLC t/a Sharx and one-year agreements to TC
40 JR, Inc. t/a T-Caspers Bar and Grill and Shrey, Inc. t/a
41 Tropical Smoothie for the operation of open air caf6s in the
42 resort area, subject to the terms and conditions of all
43 ordinances, resolutions, and regulations applicable to open air
44 caf6s.
45 Adopted by the City Council of Virginia Beach, Virginia on
46 this 23rdday of May , 2006.
47
48
49
50
APPROVED AS TO CONTENTS: APPROVED AS TO LEGAL
SU CIENCY:
n/tl'or� and Visitors City Attorney' Office
u
CA10032
H:\PA\GG\OrdRes\Proposed\Open Air Caf6 Franchises II ord.doc
R-1
May 11, 2006
-30 -
Item T!K.6.
RESOLUTIONS/ORDINANCES ITEM #55238
Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED:
Ordinance to AUTHORIZE and DIRECT the City Manager to execute
a Deed of Release and Exchange with John Baum re an Agricultural
Lands Preservation Easement (ARP).
Voting: 10-0 (By Consent)
Council Members Voting Aye:
Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S.
McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve,
Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson
Council Members Voting Nay:
None
Council Members Absent:
James L. Wood
May 23, 2006
1 AN ORDINANCE AUTHORIZING AND DIRECTING
2 THE CITY MANAGER TO EXECUTE A DEED OF
3 RELEASE AND EXCHANGE PERTAINING TO AN
4 AGRICULTURAL LANDS PRESERVATION EASEMENT
5 LOCATED ON LAND OF JOHN A. BAUM
6
7
8 WHEREAS, on November 4, 1998, the City of Virginia Beach
9 (hereinafter the "City") and John A. Baum (hereinafter "Baum") entered
10 into Installment Purchase Agreement Number 1998-22, whereby the City
11 acquired an Agricultural Lands Preservation Easement (hereinafter
12 "Preservation Easement") upon certain property owned by Baum; and
13 WHEREAS, as part of the aforesaid transaction, Baum reserved for
14 future development a portion of property having an area of 3.000 acres,
15 more or less, such that the Preservation Easement does not encumber the
16 reserved area; and
17 WHEREAS, Baum desires to exchange an area of land not encumbered by
18
the Preservation
Easement for an equal area of land which is to be
19
encumbered by the
Preservation Easement, as
shown on the attached plat
20
entitled "EXHIBIT
SHOWING PROPOSED RELOCATED
EASEMENT EXCEPTION FOR SITE
21 C-1 ON PROPERTY STANDING IN THE NAME OF JOHN A. BAUM (D.B. 1537, PG.
22 131) (M.B. 175, PG. 23) FOR CITY OF VIRGINIA BEACH AGRICULTURAL RESERVE
23 PROGRAM" Scale 1" = 100', dated April 4, 2006, and prepared by Mel Smith
24 & Associates; and
25 WHEREAS, pursuant to Section 11 of the Agricultural Lands
26 Preservation Ordinance (hereinafter "Ordinance"), a landowner may
1
27 petition the City Council for the extinguishment of a Preservation
28 Easement in exchange for the conveyance to the City of a Preservation
29 Easement on a different portion of the landowner's property, under
30 certain conditions set forth in the Ordinance; and
31 WHEREAS, the Ordinance provides that the City Council shall approve
32 such an exchange if it makes certain findings enumerated in the
33 Ordinance; and
34 WHEREAS, the City Council does hereby make such findings, to -wit:
35 (1) the acquisition of the proposed Preservation Easement in lieu of
36 the existing Preservation Easement does not adversely affect the City's
37 interests in accomplishing the purposes of the Ordinance;
38 (2) the proposed Preservation Easement area meets all of the
39 eligibility requirements set forth in Section 7 of the Ordinance;
40 (3) the land to be encumbered by the proposed Preservation Easement is
41 of at least equal fair market value, is of greater value as permanent
42 open space, and of as nearly as feasible equivalent usefulness and
43 location for use as permanent open -space land as the property on which
44 the existing Preservation Easement is located; and
45 (4) the consideration for the acquisition of the new Preservation
46 Easement consists solely of the extinguishment of the existing
47 Preservation Easement.
48 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
49 VIRGINIA BEACH:
4
50 That subject to the determination of the City Attorney that there
51 are no defects in title to the property to be placed under the
52 Preservation Easement or other restrictions or encumbrances thereon
53
which may, in the
opinion of the City Attorney, adversely affect
the
54
City's interests,
the City Manager be, and hereby is, authorized
and
55
directed to execute
a Deed of Release and Exchange pursuant to which
the
56 City releases the existing Preservation Easement on a portion of the
57 property, as shown on the aforesaid survey, and acquires, in exchange
58 therefore, land equal in area to be placed under the Preservation
59 Easement, as shown on such survey.
60
Adopted
by
the City
Council
of the City of Virginia Beach,
61
Virginia, on
this
23rdday
of May
, 2006.
CA -9874
X:\OID\REAL ESTATE\ARP\Baum-Exchange\arpexchangeordin.doc
R-1
May 11, 2006
APPROVED AS TO CONTENT:
SUFFICIENCY:
l 1
Agridulture Dept.
3
APPROVED AS TO LEGAL
City Attorney's Office
I, Melvyn R. Smith, a Certified Land Surveyor, do hereby certify that this plat was
made by me, the undersigned, at the direction of the owner, and that the property
shown hereon' is true and correct to the best of my knowledge. This survey has
been prepared in accordance with the minimum standards for a survey as defined
by the Commonwealth of Virginia Board of Architects, Profesi io =,Engineers, Land
Surveyors and Landscape Architects.
Mer S its, L d Su N1386
L l
1. THIS PLAT DOES NOT CONSTITUTE A SUBDMSION OF LAND +,
2. THIS PLAT DONE WITHOUT THE BENEFIT OF A TITLE REPORT.,
3. MERIDIAN OF THIS PLAT IS BASED ON VIRGINIA STATE PLANE `' I d
COORDINATE SYSTEM, SOUTH ZONE, NAD 83/86. v I ., �, m
LEGEND N 3374557.989
E 12187602.620 / N
O IRON PIN SET I
• IRON PIN FND N /F / Q> p
JOHN A. BAUM / I 7 N
D.B.1537, PG.131 I W
M.B.175, PG. 23 /
r"
►v I N
GPII'V 1387-52-49.39 Q
o S03'40'23"E I ()
ti 323.43'
o PROPOSED RR OCA TED I Q
N43'34'34"E EASEMENT EXCEP770N o
N� 660.02'
/ SITE
EASEMEN R J. AC V
z 130683 SO FT O
— / 3374135.222
/ EASEMENT LINES
/ HEREBY VACATED /\� 12187623.340
/ I 503'40'23"E
323.43'
S43'34'37"W
/ 440.47 — —
/ I
EXISTING
EA SEMEN T EXCEP TION
1h�� SITE C-2
NJ46.25 26" W G �. (D. B. 3978, PG 1579)
237.50'
EXHIBIT I
/EASEMENT LINES �PS� ��9 g / SHOWING PROPOSED
I
HEREBY VACATED �� / RELOCATED EASEMENT EXCEPTION
FOR SITE C-1
/ N/F ON PROPERTY STANDING IN THE NAME OF
JOHN A. AUM JOHN A. BAUM
D.8.1537(PG.131 (D.B. 1537, PG. 131)(M.B.175, PG.23)
M.B.17�, PG. 23 FOR
CITY OF VIRGINIA BEACH
AGRICULTURAL RESERVE PROGRAM
�P/N 1387-52-4939 Scale: 1"=100' April 4, 2006
Virginia Beach Virginia
GRAPHIC SCALE
SCALE 1 1• = 100 MEL SMITH & ASSOCIATES
ENGINEERING• SURVEYING PLANNIN
100 50 0 100 968 S. ORMLE DRIVE, SUITE 201
Virginia Beach, Virginia 23451
FM M Phone (757) 422-4983
scale feet DRAWN 1 CDC CHK"D i CAD PROD. Na. 1 2006.
-31 -
Item V.K. 7.
RESOLUTIONS/ORDINANCES ITEM #55239
Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED:
Ordinance to AUTHORIZE the City Manager to execute a Management
and Operating Agreement with the Association of the Preservation of
Virginia Antiquities (APVA) re ownership of the Lynnhaven House at
4405 Wishart Road. DISTRICT 4 — BAYSIDE
Voting: 10-0 (By Consent)
Council Members Voting Aye:
Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S.
McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve,
Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson
Council Members Voting Nay.-
None
ay:
None
Council Members Absent:
James L. Wood
May 23, 2006
I AN ORDINANCE AUTHORIZING THE CITY
2 MANAGER TO EXECUTE A MANAGEMENT
3 AND OPERATING AGREEMENT WITH APVA
4 PRESERVATION VIRIGINIA
5 WHEREAS, APVA Preservation Virginia, a Virginia corporation
6 exempt from taxation under Section 501 (C)(3) of the IRS Code,
7 owns and
manages the
Lynnhaven House, a
historic
property
8 located at
4405 Wishart
Road in Virginia Beach,
Virginia;
and
9 WHEREAS, APVA is currently negotiating with the City to
10 enter into a purchase/sale agreement that would transfer
11 ownership of the Lynnhaven House to the City; and
12 WHEREAS, while the sale transaction is pending, the City
13 and APVA desire for the City to assume responsibility, through
14 the Department of Museums and Cultural Arts, for the operation
15 and management of the Lynnhaven House; and
16 WHEREAS, in furtherance of that objective, the City and
17 APVA wish to enter into a management and operating agreement
18 whereby the City shall be responsible for operating and
19 maintaining the Lynnhaven House, providing all labor and
20 materials necessary for the day-to-day operations, routine
21 maintenance, security, utilities, programming, landscape
22 maintenance, marketing, and related services.
23 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY
24 OF VIRGINIA BEACH:
25 That the City Manager is hereby authorized to execute the
26 Management and Operating Agreement with APVA Preservation
27 Virginia.
28 Adopted by the City Council of Virginia Beach, Virginia on
29 this 23rd day of May , 2006.
APPROVED AS TO CONTENTS:
Muse ims and Cultural Arts
APPROVED AS TO LEGAL
SUFFICIENCY:
,t. [L
City Attorney's ffice
CA10025
H:\PA\GG\OrdRes\Proposed\Lynnhaven House
R-1
April 28, 2006
-32 -
Item T!K.8.
RESOLUTIONS/ORDINANCES ITEM #55240
Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED:
Ordinance to AUTHORIZE acquisition of property for right-of-way,
temporary and permanent easements re increasing the capacity for the
First Colonial Road/Virginia Beach Boulevard intersection.
Voting: 10-0 (By Consent)
Council Members Voting Aye.-
Harry
ye:
Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S.
McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve,
Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson
Council Members Voting Nay:
None
Council Members Absent:
James L. Wood
May 23, 2006
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
AN ORDINANCE TO AUTHORIZE
ACQUISITION OF PROPERTY IN FEE
SIMPLE FOR RIGHT OF WAY FOR FIRST
COLONIAL ROAD / VIRGINIA BEACH
BOULEVARD INTERSECTION IMPROVEMENTS,
CIP #2-072, UTILITY CIP #5-140, CIP
#6-067 AND THE ACQUISITION OF
TEMPORARY AND PERMANENT EASEMENTS,
EITHER BY AGREEMENT OR CONDEMNATION
WHEREAS, in the opinion of the Council of the City of Virginia
Beach, Virginia, a public necessity exists for the construction of
this important roadway project to improve transportation within the
City and for other related public purposes for the preservation of
the safety, health, peace, good order, comfort, convenience, and
for the welfare of the people in the City of Virginia Beach.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
19 VIRGINIA BEACH, VIRGINIA:
20 Section 1. That the City Council authorizes the acquisition
21 by purchase or condemnation pursuant to Sections 15.2-1901, et
22 seq., Sections 33.1-89, et seq., and Title 25.1 of the Code of
23 Virginia of 1950, as amended, of all that certain real property in
24 fee simple, including temporary and permanent easements and entire
25 tracts upon which such rights of way or easements shall be located,
26 within the limitations and conditions of Section 33.1-91 of the
27 Code of Virginia of 1950, as amended (the "Property"), as shown on
28 the plans entitled "First Colonial Road / Virginia Beach Boulevard
29 Intersection Improvements CIP #2-072, Utility CIP #5-140, CIP #6-
30 067," (the "Project") and more specifically described on the
31 acquisition plats for the Project (plats and plans collectively
32 referred to as the "Plans"), the Plans being on file in the
33 Engineering Division, Department of Public Works, City of Virginia
34 Beach, Virginia.
35 Section 2. That the City Manager is hereby authorized to make
36 or cause to be made on behalf of the City of Virginia Beach, to the
37 extent that funds are available, a reasonable offer to the owners
38 or persons having an interest in said Property. If refused, the
39 City Attorney is hereby authorized to institute proceedings to
40 condemn said Property.
41 Adopted by the Council of the City of Virginia Beach,
42 Virginia, on the 23rd day of May 1 2006.
CA
PREPARED: 03/22/06
x:/oid/realestate/acq/w-c/acq ord
CA9875 Kolonial Ord.doc
APPROVED AS TO CONTENT
C. s4l
GNATURE
FM Pai Lskit
DEPARTMENT
APPROVED AS TO LEGAL
SUFFICIENCY AND FORM
CITY ATTORNEY
W:\PW Common Data\Templates\Real Estate Forms\COUNCIL - GENERAL FORMS\Ordinance for Projects that Include Entire Takes.doc
LOCATION
MAP
IP
PROJECT
#2-07;
RST
COLONIAL
RE
M.
BEACH,
BLVD.
ECTION
IMPRf)VFI
-33 -
Item V K9.
RESOLUTIONS/ORDINANCES ITEM #55241
Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED:
Ordinance to AUTHORIZE temporary encroachments by Heritage
Park, LLC, into the City's right-of-way at Heritage Park Drive and
Sandbridge Road re a subdivision sign, irrigation line and electrical line.
DISTRICT 7 — PRINCESS ANNE
The following conditions shall be required:
1. The Temporary Encroachment shall be constructed and maintained in accordance with the laws of
the Commonwealth of Virginia and the City of Virginia Beach, and in accordance with the City's
specifications and approval.
2. The Temporary Encroachment herein authorized terminates upon notice by the City to the applicant,
and that within thirty (30) days after the notice is given, the Temporary Encroachment must be
removed from the Encroachment Area by the applicant; and that the applicant will bear all costs and
expenses of such removal.
3. The applicant shall indemnify and hold harmless the City, its agents and employees, from and against
all claims, damages, losses and expenses including reasonable attorney's fees in case it shall be
necessary to file or defend an action arising out of the location or existence of the Temporary
Encroachment.
4. Nothing herein contained shall be construed to enlarge the permission and authority to permit the
maintenance or construction of any encroachment other than that specified herein and to the limited
extent specified herein, nor to permit the maintenance and construction of any encroachment by
anyone other than the applicant.
5. The applicant agrees to maintain the Temporary Encroachment so as not to become unsightly or a
hazard.
6. The applicant must submit and have approved a traffic control plan before commencing work in the
Encroachment Area.
7. The applicant agrees that no open cut of the public roadway will be allowed except under extreme
circumstances. Requests for exceptions must be submitted to the Highway Operations Division,
Department of Public Works, for final approval.
8. The applicant must obtain a permit from the Office of Planning Department prior to commencing any
construction within the Encroachment Area.
9. Prior to issuance of a right-of-way permit, the applicant must post a bond or other security, in
accordance with their engineer's cost estimate, to the Office of Planning.
May 23, 2006
-34 -
Item vK9.
RESOLUTIONS/ORDINANCES ITEM#55241 (Continued)
10. The applicant must obtain and keep in force all-risk property insurance and general liability or such
insurance as is deemed necessary by the City, and all insurance policies must name the City as
additional named insured or loss payee, as applicable. The applicant also agrees to carry
comprehensive general liability insurance in an amount not less than $500, 000.00 combined single
limits of such insurance policy or policies. The applicant will provide endorsements providing at least
thirty (30) days written notice to the City prior to the cancellation or termination of, or material
change to, any of the insurance policies. The applicant assumes all responsibilities and liabilities,
vested or contingent, with relation to the Temporary Encroachment.
11. The Temporary Encroachment must conform to the minimum setback requirements, as established by
the City.
12. The subdivision sign may not exceed: thirty-two (32) square feet per face; two (2) faces; six (6) feet
above the natural grade at the curb. Landscaping materials must be approved by the Landscape
Services Division of the Department of Parks and Recreation.
13. The applicant must submit for review and approval, a survey of the Encroachment Area, certified by
a registered professional engineer or a licensed land surveyor, and/or "as built"plans of the
Temporary Encroachment sealed by a registered professional engineer, if required by either the City
Engineer's Office or the Engineering Division of the Public Utilities Department.
14. The City, upon revocation of such authority and permission so granted, may remove the Temporary
Encroachment and charge the cost thereof to the applicant, and collect the cost in any manner
provided by law for the collection of local or state taxes; may require the applicant to remove the
Temporary Encroachment; and pending such removal, the City may charge the applicant for the use
of the Encroachment Area, the equivalent of what would be the real property tax upon the land so
occupied if it were owned by the applicant; and if such removal shall not be made within the time
ordered hereinabove by this Agreement, the City may impose a penalty in the sum of One Hundred
Dollars ($100.00) per day for each and every day that the Temporary Encroachment is allowed to
continue thereafter, and may collect such compensation and penalties in any manner provided by law
for the collection of local or state taxes.
Voting: 10-0 (By Consent)
Council Members Voting Aye:
Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S.
McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve,
Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson
Council Members Voting Nay:
None
Council Members Absent:
James L. Wood
May 23, 2006
I Requested by Department of Public Works
2
3 AN ORDINANCE TO AUTHORIZE
4 TEMPORARY ENCROACHMENTS INTO
5 PORTIONS OF CITY RIGHTS -OF -
6 WAY KNOWN AS HERITAGE PARK
7 DRIVE AND SANDBRIDGE ROAD BY
8 HERITAGE PARK, LLC, ITS
9 HEIRS, ASSIGNS AND SUCCESSORS
10 IN TITLE
11
12 WHEREAS, Heritage Park, LLC, a Virginia limited liability
13 company, desires to construct and maintain a subdivision sign,
14 2" PVC conduits for an irrigation line and 2" PVC conduits for
15 an electrical line into portions of City rights-of-way known as
16 Heritage Park Drive and Sandbridge Road.
17 WHEREAS, City Council is authorized pursuant to §§ 15.2-
18 2009 and 15.2-2107, Code of Virginia, 1950, as amended, to
19 authorize temporary encroachments upon the City's rights-of-way
20 subject to such terms and conditions as Council may prescribe.
21 NOW, THEREFORE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
22 VIRGINIA BEACH, VIRGINIA:
23 That pursuant to the authority and to the extent thereof
24 contained in §§ 15.2-2009 and 15.2-2107, Code of Virginia, 1950,
25 as amended, Heritage Park, LLC, a Virginia limited liability
26 company, its assigns and successors in title are authorized to
27 construct and maintain temporary encroachments for a subdivision
28 sign, 2" PVC conduits for an irrigation line and 2" PVC conduits
29 for an electrical line into portions of the City rights-of-way
30 as shown on the maps marked Exhibit "A", "B", "C", "D" and "E"
31 and entitled: "SIGN ENCROACHMENT EXHIBIT FOR HERITAGE PARK
32 VIRGINIA BEACH, VIRGINIA," a copy of which is on file in the
33 Department of Public Works and to which reference is made for a
34 more particular description; and
35 BE IT FURTHER ORDAINED, that the temporary encroachments
36 are expressly subject to those terms, conditions and criteria
37 contained in the Agreement between the City of Virginia Beach
38 and Heritage Park, LLC, a Virginia limited liability company,
39 (the "Agreement"), which is attached hereto and incorporated by
40 reference; and
41 BE IT FURTHER ORDAINED, that the City Manager or his
42 authorized designee is hereby authorized to execute the
43 Agreement; and
44 BE IT FURTHER ORDAINED, that this Ordinance shall not be in
45 effect until such time as Heritage Park, LLC, a Virginia limited
46 liability company, and the City Manager or his authorized
47 designee execute the Agreement.
48 Adopted by the Council of the City of Virginia Beach,
49 Virginia, on the day of May 1 2006.
2
CA -9877
PREPARED: 4/24/06
APPROVED AS TO CONTENTS
Si.,dNATURE
PIP RFI F54F
DEPARTMENT
APPROVED AS TO LEGAL
SUFFICIENCY AND FORM
tum q. mdw
CITY ATTORNEY
X:\OID\REAL ESTATE\Encroachments\PW Ordinances\CA9877 Heritage Park, LLC.doc
PREPARED BY VIRGINIA BEACH
CITY ATTORNEY'S OFFICE
EXEMPTED FROM RECORDATION TAXES
UNDER SECTION 58.1-811(C) (4)
THIS AGREEMENT, made this 21st day of March, 2006, by and between the
CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation, Grantor, "City", and
HERITAGE PARK, LLC, a Virginia limited liability company, ITS ASSIGNS AND
SUCCESSORS IN TITLE, "Grantee", even though more than one.
WITNESSETH:
That, WHEREAS, the Grantee is the owner of that certain lot, tract, or parcel of
land designated and described as "DAVID B. HILL JR. ET ALS", as shown on that certain plat
recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Map
Book 176, at page 16, and being further designated and described as GPIN 2413-59-9454,
Virginia Beach, Virginia 23456;
WHEREAS, it is proposed by the Grantee to construct and maintain a subdivision
sign, 2" PVC conduits for an irrigation line and 2" PVC conduits for an electrical line, the
"Temporary Encroachment", in the City of Virginia Beach;
WHEREAS, in constructing and maintaining the Temporary Encroachment, it is
necessary that the Grantee encroach into portions of City rights-of-way known as Heritage Park
Drive and Sandbridge Road, the `Encroachment Area"; and
WHEREAS, the Grantee has requested that the City permit a Temporary
Encroachment within the Encroachment Area.
GPIN (CITY RIGHT OF WAY — NO GPIN REQUIRED)
2413-59-9454, 2414-40-7792 and 2413-79-3139
NOW, THEREFORE, for and in consideration of the premises and of the benefits
accruing or to accrue to the Grantee and for the further consideration of One Dollar ($1.00), in
hand paid to the City, receipt of which is hereby acknowledged, the City doth grant to the
Grantee permission to use the Encroachment Area for the purpose of constructing and
maintaining the Temporary Encroachment.
It is expressly understood and agreed that the Temporary Encroachment will be
constructed and maintained in accordance with the laws of the Commonwealth of Virginia and
the City of Virginia Beach, and in accordance with the CitYs specifications and approval and is
more particularly described as follows, to wit:
A Temporary Encroachment into the Encroachment Area as shown
on those certain plats entitled: "SIGN ENCROACHMENT
EXHIBIT FOR HERITAGE PARK," copies of which are attached
hereto as Exhibits "A", "B", "C", "D", "E" and "F" and to which
references are made for a more particular description.
It is further expressly understood and agreed that the Temporary Encroachment
herein authorized terminates upon notice by the City to the Grantee, and that within thirty (30)
days after the notice is given, the Temporary Encroachment must be removed from the
Encroachment Area by the Grantee; and that the Grantee will bear all costs and expenses of such
removal.
It is further expressly understood and agreed that the Grantee shall indemnify and
hold harmless the City, its agents and employees, from and against all claims, damages, losses
and expenses including reasonable attorney's fees in case it shall be necessary to file or defend an
action arising out of the location or existence of the Temporary Encroachment.
2
It is further expressly understood and agreed that nothing herein contained shall
be construed to enlarge the permission and authority to permit the maintenance or construction of
any encroachment other than that specified herein and to the limited extent specified herein, nor
to permit the maintenance and construction of any encroachment by anyone other than the
Grantee.
It is further expressly understood and agreed that the Grantee agrees to maintain
the Temporary Encroachment so as not to become unsightly or a hazard.
It is further expressly understood and agreed that the Grantee must submit and
have approved a traffic control plan before commencing work in the Encroachment Area.
It is further expressly understood and agreed that the Grantee agrees that no open
cut of the public roadway will be allowed except under extreme circumstances. Requests for
exceptions must be submitted to the Highway Operations Division, Department of Public Works,
for final approval.
It is further expressly understood and agreed that the Grantee must obtain a permit
from the Office of Planning Department prior to commencing any construction within the
Encroachment Area.
It is further expressly understood and agreed that prior to issuance of a right of
way permit, the Grantee must post a bond or other security, in accordance with their engineer's
cost estimate, to the Office of Planning Department.
It is further expressly understood and agreed that the Grantee must obtain and
keep in force all-risk property insurance and general liability or such insurance as is deemed
necessary by the City, and all insurance policies must name the City as additional named insured
or loss payee, as applicable. The Grantee also agrees to carry comprehensive general liability
3
insurance in an amount not less than $500,000.00, combined single limits of such insurance
policy or policies. The Grantee will provide endorsements providing at least thirty (30) days
written notice to the City prior to the cancellation or termination of, or material change to, any of
the insurance policies. The Grantee assumes all responsibilities and liabilities, vested or
contingent, with relation to the Temporary Encroachment.
It is further expressly understood and agreed that the Temporary Encroachment
must conform to the minimum setbacks requirements, as established by the City.
It is further expressly understood and agreed that the subdivision sign may not
exceed: thirty-two (32) square feet per face; two (2) faces; six (6) feet above the natural grade at
the curb. Landscaping materials must be approved by the Landscape Services Division of the
Department of Parks and Recreation.
It is further expressly understood and agreed that the Grantee must submit for
review and approval, a survey of the Encroachment Area, certified by a registered professional
engineer or a licensed land surveyor, and/or "as built" plans of the Temporary Encroachment
sealed by a registered professional engineer, if required by either the City Engineer's Office or
the Engineering Division of the Public Utilities Department.
It is further expressly understood and agreed that the City, upon revocation of
such authority and permission so granted, may remove the Temporary Encroachment and charge
the cost thereof to the Grantee, and collect the cost in any manner provided by law for the
collection of local or state taxes; may require the Grantee to remove the Temporary
Encroachment; and pending such removal, the City may charge the Grantee for the use of the
Encroachment Area, the equivalent of what would be the real property tax upon the land so
occupied if it were owned by the Grantee; and if such removal shall not be made within the time
M
ordered hereinabove by this Agreement, the City may impose a penalty in the sum of One
Hundred Dollars ($100.00) per day for each and every day that the Temporary Encroachment is
allowed to continue thereafter, and may collect such compensation and penalties in any manner
provided by law for the collection of local or state taxes.
IN WITNESS WHEREOF, the said Heritage Park, LLC, a Virginia limited
liability company, has caused this agreement to be executed on its behalf by Joseph Coker, Jr.,
Member of Hill Farm Development Company, L.L.C., a Virginia limited liability company, Sole
Member(s) of Heritage Park, LLC., a Virginia limited liability company, with due authority to
bind said limited liability company. Further, that the City of Virginia has caused this agreement
to be executed in its name and on its behalf by its City Manager and its seal be hereunto affixed
and attested by its City Clerk.
(SEAL)
ATTEST:
City Clerk
CITY OF VIRGINIA BEACH
By
City Manager/Authorized
Designee of the City Manager
HERITAGE PARK, LLC,
a Virginia limited liability company,
By: Hill Farm Development Company,
L.L.C., a Virginia limited liability
company, Sole Member,
�,w "Joseph Coker, Jr.`,
V' E
STATE OF VIRGINIA
CITY OF VIRGINIA BEACH, to -wit:
The foregoing instrument was acknowledged before me this day of
200 by
DESIGNEE OF THE CITY MANAGER.
CITY MANAGER/AUTHORIZED
My Commission Expires: Notary Public
STATE OF VIRGINIA
CITY OF VIRGINIA BEACH, to -wit:
The foregoing instrument was acknowledged before me this day of
200__, by RUTH HODGES SMITH, City Clerk for the CITY OF VIRGINIA
BEACH.
My Commission Expires:
Notary Public
STATE OF VIRGINI r
CITY/C-9FTY OF Wit;
The foregoing instrument was acknowledged before me this o21 day of
200L, by Joseph Coker, Jr., Member of Hill Farm Development Company,
L.L.C., a Virginia limited liability company, Sole Member on behalf of Heritage Park, LLC, a
Virginia limited liability company.
My Commission Expires: i �o ,� Da,
0
APPROVED AS TO CONTENTS
SI ATURE
DEPARTMENT
APPROVED AS TO LEGAL
SUFFICIENCY AND FORM
J. , l mv
X:\OID\REAL ESTATE\Encroachments\PW Ordinances\CA9877 Heritage Park, LLC Encroachment Agreement.doc
EXHIBIT "A"
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SCALE: NTS
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MANURE (WELL ROTTED, HORSE OR CATTLE MANURE FREE OF STONES, STICKS AND
SOIL; CONTAINING A MAXIMUM 25 PERCENT BY VOLUME OF STRAW, SAWDUST, OR
OTHER BEDDING MATERIALS.). THOROUGHLY MIX ALL PARTS OF PLANTING SOIL
MIXTURE TO A UNIFORM THROUGHOUT.
SHRUB PLANTING DETAIL
SCALE: NONE
SIGN ENCROACHMENT EXHIBIT
FOR
HERITAGE PARK
VIRGINIA BEACH, VIRGINIA
DATE:2/1/06 SCALE: 1"=50' PROJ. NO: 99007A
JVT7i I. MSA, P_C_
Environmental Sciences • Geosciences • Planning
Surveying • Engineering • Landscape Architecture
5033 Rouse Drive, Virginia Beach, VA 23462
757-490-9264(Ofc) 757-490-0634(Fax)
www.msaonline com
Offices in Virginia Beach & Eastville, VA
FINISH GRADE
MIN. 3" SHREDDED HARDWOOD MULCH
3" COMPACTED EARTH SAUCER
(NOTE: IN PLANTING BEDS,
ELIMINATE THE COMPACTED EARTH
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TWO TIMES
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TAMPED PLANTING SOIL MIXTURE TO
NOTE:
PREVENT SETTLING
1. ALL PLANTS ARE TO BE GUARANTEED FOR ONE
INSPECTION BY A/E TO COMMENCE THE PLANT
YEAR BEGINNING ON THE DATE OF
ESTABLISHMENT PERIOD.
2. PLANTING SOIL MIXTURE: TWO PARTS TOPSOIL, 1/2 PART COMPOST, AND 1/2 PART
MANURE (WELL ROTTED, HORSE OR CATTLE MANURE FREE OF STONES, STICKS AND
SOIL; CONTAINING A MAXIMUM 25 PERCENT BY VOLUME OF STRAW, SAWDUST, OR
OTHER BEDDING MATERIALS.). THOROUGHLY MIX ALL PARTS OF PLANTING SOIL
MIXTURE TO A UNIFORM THROUGHOUT.
SHRUB PLANTING DETAIL
SCALE: NONE
SIGN ENCROACHMENT EXHIBIT
FOR
HERITAGE PARK
VIRGINIA BEACH, VIRGINIA
DATE:2/1/06 SCALE: 1"=50' PROJ. NO: 99007A
JVT7i I. MSA, P_C_
Environmental Sciences • Geosciences • Planning
Surveying • Engineering • Landscape Architecture
5033 Rouse Drive, Virginia Beach, VA 23462
757-490-9264(Ofc) 757-490-0634(Fax)
www.msaonline com
Offices in Virginia Beach & Eastville, VA
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LOCATION MAP
ENCROACHMENT REQUEST FOR
HERITAGE PARK, LLC
HERITAGE PARK DRIVE AND SANDBRIDGE ROAD
D 200 400 800__
Feet
Prepared by P.W./Eng./Eng. Support Services Bureau 5/2/06 X:\ProjectsWRC FilesWgenda Maps\Heritage Park 5/2/06.mxd
-35 -
Item i.K.10.
RESOLUTIONS/ORDINANCES ITEM #55242
Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED:
Ordinance to TRANSFER $395,340 within the Police Department's FY
2005-06 Operating Budget to comply with Department of Justice (DOJ)
Consent Decree re recruiting tests.
Voting: 9-1 (By Consent)
Council Members Voting Aye:
Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Richard A.
Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W. Schmidt, Ron A.
Villanueva and Rosemary Wilson
Council Members Voting Nay:
Reba S. McClanan
Council Members Absent:
James L. Wood
May 23, 2006
I AN ORDINANCE TO TRANSFER $395,340 WITHIN THE
2 POLICE DEPARTMENT'S FY 2005-06 OPERATING
3 BUDGET TO MEET THE REQUIREMENTS OF THE
4 DEPARTMENT OF JUSTICE CONSENT DECREE AND TO
5 CONDUCT VALIDATION STUDIES OF THE POLICE
6 DEPARTMENT'S RECRUITING TESTS
7
8
9 WHEREAS, the Police Department has identified $395,340 within
10 its budget from savings due to vacancies to meet the requirements
11 of the Department of Justice Consent Decree and to conduct
12 validation studies of the Police Department's recruiting tests.
13 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
14 VIRGINIA BEACH, VIRGINIA:
15
That
$395,340 is
hereby
transferred within
the Police
16
Department's
FY 2005-06
Operating
Budget to establish
a Settlement
17 Fund and provide media advertisement by order of the Department of
18 Justice Consent Decree and to conduct validation studies of the
19 Police Department's recruiting tests.
20 Requires an affirmative vote by a majority of the members of
21 the City Council.
22
23 Adopted by the Council of the City of Virginia Beach,
24 Virginia, on the 23rd day of May 2006.
APPROVED AS TO CONTENT:
kanage ent Services
APPROVED AS TO LEGAL
SUFFICIENCY:
City Attorney's 0 fice
CA10030
X:\PA\GG\OrdRes\DOJ Consent Decree ORD
R-3
May 10, 2006
-36 -
PLANNING ITEM # 55243
Item V -L.1.
1. BOBBYDANIELS, CONDITIONAL USE PERMIT
FAITH FOR DELIVERANCE OUTREACH CENTER
Item V -M.1.
I. CORNELIUS F. and ANTONINA BOYNTON
LOPE and MERCYPILE
2. HERBERT R. SNELLING, JR.
3. BURTON AND NANCY C. JUDA
4. COURTHOUSE COMMUNITY UNITED
METHODIST CHURCH
5. UPTON], l..L.C.
6. CAR UANA CONSTRUCTION, INC.
7. DANNYKMARTIN
8. DELAWARE CORPORATION
9. LA WSON HALL ASSOCIATES, L.L. C.
STREET CLOSURES
VARIANCE
CONDITIONAL USE PERMIT
CONDITIONAL USE PERMIT
CONDITIONAL USE PERMIT
CONDITIONAL CHANGE OF ZONING
CONDITIONAL CHANGE OF ZONING
CONDITIONAL CHANGE OF ZONING
CONDITIONAL CHANGE OF ZONING
May 23, 2006
Item V L.M.
PLANNING
-37 -
ITEM # 55244
Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council APPROVED IN
ONE MOTION Items L.1. (REFERRED BACK TO PLANNING COMMISSION), M.1 alb, 2, 3, 4 5,
6, 8 and 9 of the PLANNING BY CONSENT AGENDA.
Voting: 10-0 (By Consent)
Council Members Voting Aye:
Harry E. Diezel, Robert M. Dyer, Vic
McClanan, Richard A. Maddox, Mayor
Peter W. Schmidt, Ron A. Villanueva and
Council Members Voting Nay:
None
Council Members Absent:
James L. Wood
Mayor Louis R. Jones, Reba S.
Meyera E. Oberndorf, Jim Reeve,
Rosemary Wilson
Council Ladies McClanan and Wilson will vote a VERBAL NAY on Item M.3 (JUDA)
Mayor Oberndorf will ABSTAIN as she is the proud mother of three (3) dogs and is a resident of the
neighborhood on Item M.3 (JUDA)
Vice Mayor Jones ABSTAINED on Item M.9 (Lawson) as he is a Director of Resource Bank, which is
handling the financing of this project
May 23, 2006
Item V L.1.
PLANNING ITEM # 55245
Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council REFERRED BACK
TO THE PLANNING COMMISSION the Ordinance upon Application of BOBBYDANIELS, FAITH
FOR DELIVERANCE OUTREACH CENTER for a Conditional Use Permit
ORDINANCE UPON APPLICATION OF BOBBY DANIELS, FAITH
FOR DELIVERANCE OUTREACH CENTER FOR A CONDITIONAL
USE PERMIT FOR A CHURCH
Ordinance upon Application of Bobby Daniels, Faith for Deliverance
Outreach Center for a Conditional Use Permit for a church on property
located at 649 Newtown Road, Unit 103 (GPIN 1468313784).
DISTRICT 2 — KEMPSVILLE
The applicant is requesting a Conditional Use Permit to allow a church within a shopping center unit.
However, after the Planning Commission action on this use permit, the applicant contacted staff and
noted that the church is interested in using a different unit of the shopping center than the one applied
for, which was Suite 103. Since the application is specific to Suite 103, the Zoning Administrator has
determined that this matter must be referred back to the Planning Commission for new legal
advertisement and hearing particular to the alternative unit in the shopping center now desired by the
church.
Voting: 10-0 (By Consent)
Council Members Voting Aye:
Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S.
McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve,
Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson
Council Members Voting Nay:
None
Council Members Absent:
James L. Wood
May 23, 2006
-39 -
Item V.M.La/b
PLANNING ITEM # 55246
Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED
Ordinances upon applications of CORNELIUS F. AND ANTONINA BOYNTON AND LOPE AND
MERCYPILE for the discontinuance, abandonment and closure at Jerrsey Avenue and Virginia Beach
Boulevard re reservation for future development
Ordinance upon Application of Cornelius F. Boynton, Jr. & Antonina
Boynton for the discontinuance, abandonment and closure of a portion of
Jersey Avenue beginning on the south side of Virginia Beach Boulevard
and extending approximately 155.67 feet in a southerly direction.
DISTRICT 2 — KEMPSVILLE
The following conditions shall be required:
1. The City Attorney's Office will make the final determination regarding ownership of
the underlying fee, and will review any prior payments made to the City by the
applicants to determine if they are in compliance with the "Policy Regarding
Purchase of City's Interest in Streets pursuant to Street Closures, " approved by City
Council. Copies of the policy are available in the Planning Department.
2. The applicants shall re -subdivide the property and vacate internal lot lines to
incorporate the closed area into the adjoining parcels. The plat must be submitted
and approved for recordation prior to final street closure approval.
3. A public drainage easement satisfactory to the Department of Public Works shall be
provided on the final plat.
4. The applicants shall verify that no private utilities exist within the right-of-way
proposed for closure. Preliminary comments from the utility companies indicate that
Virginia Natural Gas has facilities within the right-of-way proposed for closure. If
private utilities do exist, easements satisfactory to the utility company must be
provided.
5. Closure of the right-of-way shall be contingent upon compliance with the above
stated conditions within 365 days of approval by City Council (May 22, 2007). If the
conditions noted above are not accomplished and the final plat is not approved
within one year of the City Council vote to close the right-of-way, this approval shall
be considered null and void.
A ND,
Ordinance upon Application of Lope B. Pile & Mercy Pile for the
discontinuance, abandonment and closure of a portion of Jersey Avenue
beginning on the south side of Virginia Beach Boulevard and extending
approximately 107.90 feet in a southerly direction. DISTRICT 2 —
KEMPSVILLE
May 23, 2006
-40 -
Item V M.La/b
PLANNING ITEM # 55246 (Continued)
The following conditions shall be required.•
The City Attorney's Office will make the final determination regarding
ownership of the underlying fee, and will review any prior payments made to
the City by the applicants to determine if they are in compliance with the
"Policy Regarding Purchase of City's Interest in Streets pursuant to Street
Closures, " approved by City Council. Copies of the policy are available in
the Planning Department.
2. The applicants shall re -subdivide the property and vacate internal lot lines to
incorporate the closed area into the adjoining parcels. The plat must be
submitted and approved for recordation prior to final street closure
approval.
3. A public drainage easement satisfactory to the Department of Public Works
shall be provided on the final plat.
4. The applicants shall verify that no private utilities exist within the right-of-
way proposed for closure. Preliminary comments from the utility companies
indicate that Virginia Natural Gas has facilities within the right-of-way
proposed for closure. If private utilities do exist, easements satisfactory to
the utility company must be provided.
5. Closure of the right-of-way shall be contingent upon compliance with the
above stated conditions within 365 days of approval by City Council (May
22, 2007). If the conditions noted above are not accomplished and the final
plat is not approved within one year of the City Council vote to close the
right-of-way, this approval shall be considered null and void.
Voting: 10-0 (By Consent)
Council Members Voting Aye:
Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S.
McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve,
Peter W Schmidt, Ron A. Villanueva and Rosemary Wilson
Council Members Voting Nay:
None
Council Members Absent:
James L. Wood
May 23, 2006
1
IN THE MATTER OF CLOSING,
VACATING AND
2
DISCONTINUING A 3,095
SQUARE -FOOT
3
PORTION OF THAT CERTAIN STREET
KNOWN AS
4
JERSEY AVENUE AS SHOWN ON
THAT CERTAIN
5
PLAT ENTITLED "EXHIBIT PLAT
SHOWING A
6
PORTION OF JERSEY AVENUE
TO BE CLOSED
7
ADJACENT TO LOTS 1 THRU
7, INCLUSIVE,
8
BLOCK 25 AND LOTS 3 AND
4, BLOCK 26,
9
EUCLID PLACE (M.B. 4, P.63)
VIRGINIA
10
BEACH, VIRGINIA":
11 WHEREAS, Cornelius F. Boynton and Antonina S. Boynton
12
applied
to the Council of the City
of Virginia Beach, Virginia,
13
to have
the hereinafter described
street discontinued, closed,
14 and vacated; and
15 WHEREAS, it is the judgment of the Council that said
16 street be discontinued, closed, and vacated, subject to certain
17 conditions having been met on or before one (1) year from City
18 Council's adoption of this Ordinance;
19 NOW, THEREFORE, BE IT ORDAINED by the Council of the
20 City of Virginia Beach, Virginia:
21
22 That the hereinafter described street be discontinued,
23 closed and vacated, subject to certain conditions being met on
24 or before one (1) year from City Council's adoption of this
25 ordinance:
26 GPIN: 1467-85-6657-0000, 1467-85-8624-0000
1
27
All that certain piece or parcel of land
28
situate, lying and being in the City of
29
Virginia Beach, Virginia, which is shown as
30
the western half of the unimproved portion
31
of Jersey Avenue, designated and described
32
as "(3,095 SQUARE FEET)" shown as a portion
33
of the cross -hatched area on that certain
34
plat entitled: EXHIBIT PLAT SHOWING A
35
PORTION OF JERSEY AVENUE TO BE CLOSED
36
ADJACENT TO LOTS 1 THRU 7, INCLUSIVE, BLOCK
37
25 AND LOTS 3 AND 4, BLOCK 26, EUCLID PLACE
38
(M.B. 4, P.63) VIRGINIA BEACH, VIRGINIA"
39
Scale: 1" = 25', dated August 3, 1999,
40
prepared by John E. Sirine and Associates,
41
Ltd., a copy of which is attached hereto as
42
Exhibit A.
43
SECTION II
44
The following conditions must be met on or before one
45 (1) year from City Council's adoption of this ordinance:
46 1. The City Attorney's Office will make the final
47 determination regarding ownership of the underlying fee. The
48 City Attorney's Office will review the prior payments made to
49 the City by the applicants to determine if they are in
50 compliance with the "Policy Regarding Purchase of City's
51 Interest in Streets Pursuant to Street Closures," approved by
52 City Council. Copies of said policy are available in the
53 Planning Department.
54 2. The applicants shall resubdivide the property and
55
vacate internal
lot lines
to incorporate the
closed
area
into
56
the adjoining
parcels.
The resubdivision
plat
shall
be
2
57 submitted and approved for recordation prior to final street
58 closure approval.
59 3. A public drainage easement satisfactory to the
60 Department of Public Works shall be provided on the final plat.
61 4. The applicants shall verify that no private
62 utilities exist within the right-of-way proposed for closure.
63
Preliminary comments from
the utility companies indicate that
64
there are Virginia Natural
Gas utilities within
the right-of-way
65
proposed for closure.
If private utilities
do exist, the
66
applicants shall provide
easements satisfactory
to the utility
67
companies.
2007, the date
of
68 5. Closure of the right-of-way shall be contingent
69 upon compliance with the above stated conditions within one year
70 of approval by City Council. If all conditions noted above are
71 not in compliance and the final plat is not approved within one
72 year of the City Council vote to close the street, this approval
73 will be considered null and void.
74
SECTION III
75
1.
If
the preceding conditions are not fulfilled on
76
or before May
22,
2007, this Ordinance will be deemed null and
77
void without further
action by the City Council.
78
2.
If
all conditions are met on or before May 22,
79
2007, the date
of
final closure is the date the street closure
80 ordinance is recorded by the City Attorney.
3
81 3. In the event the City of Virginia Beach has any
82 interest in the underlying fee, the City Manager or his designee
83 is authorized to execute whatever documents, if any, that may be
84 requested to convey such interest, provided said documents are
85 approved by the City Attorney's Office.
86 SECTION IV
87 A certified copy of this Ordinance shall be filed in
88 the Clerk's Office of the Circuit Court of the City of Virginia
89 Beach, Virginia, and indexed in the name of the CITY OF VIRGINIA
90 BEACH as "Grantor" and CORNELIUS F. BOYNTON, JR. AND ANTONINA S.
91 BOYNTON as "Grantee."
92
Adopted
by the Council of
the City of Virginia Beach,
93
Virginia, on this
23rd day of May
, 2006.
CA -9857
X:\OID\REAL ESTATE\Street Closure\Boynton CA9857\CA9857.ORD_doc
R-1
May 11, 2006
4
APPROVED AS TO CONTENT:
0 s -v-04
Plannin Department
APPROVED AS TO LEGAL
SUFFICIENCY:
WIA&j
CityAttorney
NOTES: EXHIBIT A
'
i. P Rr�Otj OIL JEF F-
EF�, 'iAN DURCE. BASED ON -'ECORDED IN D�-ECBOOK 2431, PACE l515bS,
DU
RCE
AWN LiF 0 BFBF,
5 AREA (,117 jf
UISE"Y AVENIjf_' TG' BE CLOSED 0SQ' ARE F
5,E, L_E_ET/0.129 ACRE*
.7
4, THISP A I
;_ . _; 1140 r INrENLD" FC) A^qj I-ASEENIENTS OR PHYSICAL. FEATURES THAT
MAY A TI T . HIS PF?OPFR'F'(.
I WS PI _' A 'i j0F S NO' 0 N "'3 1 ri U 7 A OF LAND.
BF,"ll ;-!I- OF .4 FIT' E REPORT.
6- i'HIS PI,A "RFPARED
v"A r
P; IN
s8 NOLD
TO 3—
A 11. 111%,7A
R
rF eFq
/y/ 1�7
01
47b
(9 >r A 0
kp" oda
'? "o
70,
rill)
L 0 T .90
-s
rF eFq
/y/ 1�7
01
47b
(9 >r A 0
kp" oda
'? "o
70,
LOT
OLD
PIN
W / 0)
'o /W
i OTV)
4
((25
<
Lo U) 0
a) <
o;
Q2
L.0 0
co
P,
co
(D
CD
LOT 5
4
0
LOT 3
o
r
2.5.36
L 0) T 6
R
LOT 4
= 38.00
A = 108'01'12"
A = 71.64'
T = 52.32,
C = 61.49'
7
CB S 53-45-41"
W
LLJ
0
()oIDI
_j
S 89'45'0`;" W
z (If
io _r;�
tLOT B. BLOCK 215, EUCLID
PLAGE
'T
<
(M.B. 4, P. 63)
W_q�
PIN 1,467-85-642_17
>_
cd
.-j
OLD
06 c6
PI N
<
EXHIBIT PLAT SHOWING W
A PORTION OF
N Ld 'I'll
JERSEY AVENUE TO BE CLOSED
ADJACENT TO
-i U-)
11 co
LOTS 1
THRU 7, INCLUSIVE, BLOCK 25 AND
—1 1
CD
LOTS 3
AND 4, BLOCK 26, EUCLID PLACE
'moi' 6-4-99
P. 4, P 6
(M 3"
VIRGINIA LKAC-J-1, VhR--'32iN!A
L6
5' AI_!GUQT 3, 1.999
c
JOHN
E. SIRINE AND ASSOCIATES,LTD.
S U RV E ( 0 R S - E N G I N F R S - P L A N N E R S
Ffz�_=
7 4 1 - BONNU R(, Li
ROAD
VIRG!NiA BEACH, VIRGINIA 2345'
E _T
QO FIE
REVISED: NOV, 12, 1999
GRAPHIC SCALE
SHEET 1 OF 1
1
IN THE MATTER OF CLOSING, VACATING AND
2
DISCONTINUING A 2,512 SQUARE -FOOT
3
PORTION OF THAT CERTAIN STREET KNOWN AS
4
JERSEY AVENUE AS SHOWN ON THAT CERTAIN
5
PLAT ENTITLED "EXHIBIT PLAT SHOWING A
6
PORTION OF JERSEY AVENUE TO BE CLOSED
7
ADJACENT TO LOTS 1 THRU 7, INCLUSIVE,
8
BLOCK 25 AND LOTS 3 AND 4, BLOCK 26,
9
EUCLID PLACE (M.B. 4, P.63) VIRGINIA
10
BEACH, VIRGINIA":
11 WHEREAS, Lope B. Pile and Mercy Pile applied to the
12 Council of the City of Virginia Beach, Virginia, to have the
13 hereinafter described street discontinued, closed, and vacated;
14 and
15
WHEREAS, it is
the judgment of the
Council
that said
16
street be discontinued,
closed, and vacated,
subject
to certain
17 conditions having been met on or before one (1) year from City
18 Council's adoption of this Ordinance;
19 NOW, THEREFORE, BE IT ORDAINED by the Council of the
20 City of Virginia Beach, Virginia:
21 gF.rTTnN7 T
22 That the hereinafter described street be discontinued,
23 closed and vacated, subject to certain conditions being met on
24 or before one (1) year from City Council's adoption of this
25 ordinance:
26 GPIN: 1467-85-8624-0000, 1467-85-6657-0000
1
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
All that certain piece or parcel of land
situate, lying and being in the City of
Virginia Beach, Virginia, which is shown as
the eastern half of the unimproved portion
of Jersey Avenue, designated and described
as "(2,512 SQUARE FEET)" shown as a portion
of the cross -hatched area on that certain
plat entitled: EXHIBIT PLAT SHOWING A
PORTION OF JERSEY AVENUE TO BE CLOSED
ADJACENT TO LOTS 1 THRU 7, INCLUSIVE, BLOCK
25 AND LOTS 3 AND 4, BLOCK 26, EUCLID PLACE
(M.B. 4, P.63) VIRGINIA BEACH, VIRGINIA"
Scale: 1" = 25, dated August 3, 1999,
prepared by John E. Sirine and Associates,
Ltd., a copy of which is attached hereto as
Exhibit A.
SECTION II
The following conditions must be met on or before one
45 (1) year from City Council's adoption of this ordinance:
46
1.
The City
Attorney's Office will make the final
47
determination
regarding
ownership of the underlying fee. The
48
City Attorney's
Office
will review the prior payments made to
49
the City by
the applicants to determine if they are in
50
compliance with
the
"Policy Regarding Purchase of City's
51
Interest in Streets Pursuant to Street Closures," approved by
52
City Council.
Copies
of said policy are available in the
53 Planning Department.
54
2. The applicants shall resubdivide
the property
and
55
vacate internal lot lines to incorporate the
closed area
into
56
the adjoining parcels. The resubdivision
plat shall
be
Oil
57 submitted and approved for recordation prior to final street
58 closure approval.
59 3. A public drainage easement satisfactory to the
60 Department of Public Works shall be provided on the final plat.
61 4. The applicants shall verify that no private
62 utilities exist within the right-of-way proposed for closure.
63
Preliminary comments from
the
utility
companies indicate that
64
there are Virginia Natural
Gas
utilities
within the right-of-way
65
proposed
for closure.
If private utilities
do
exist, the
66
applicants
shall provide
easements satisfactory
to
the utility
67 companies.
68 5. Closure of the right-of-way shall be contingent
69 upon compliance with the above stated conditions within one year
70 of approval by City Council. If all conditions noted above are
71 not in compliance and the final plat is not approved within one
72 year of the City Council vote to close the street, this approval
73 will be considered null and void.
74 SECTION III
75 1. If the preceding conditions are not fulfilled on
76 or before May 22, 2007, this Ordinance will be deemed null and
77 void without further action by the City Council.
3
78
2.
If
all conditions
are met on
or
before
May 22,
79
2007, the date
of
final closure
is the date
the
street
closure
80 ordinance is recorded by the City Attorney.
81 3. In the event the City of Virginia Beach has any
82 interest in the underlying fee, the City Manager or his designee
83 is authorized to execute whatever documents, if any, that may be
84 requested to convey such interest, provided said documents are
85 approved by the City Attorney's Office.
86 SECTION IV
87 A certified copy of this Ordinance shall be filed in
88 the Clerk's Office of the Circuit Court of the City of Virginia
89 Beach, Virginia, and indexed in the name of the CITY OF VIRGINIA
90 BEACH as "Grantor" and LOPE B. PILE and MERCY PILE as "Grantee."
91 Adopted by the Council of the City of Virginia Beach,
92 Virginia, on this day of , 2006.
CA -9856
X\OID\REAL ESTATE\Street Closure\Pile CA9856\CA9856.ORDAm
R-1
May 11, 2006
4
APPROVED AS TO CONTENT:
Planni Department
APPROVED AS TO LEGAL
SUFFICIENCY:
W (J& k — 1�
City AtPrney�
I- CORDED lN DEED Hoo�.
To L
58
JERSE� AVENUE
D -ASP 1,1ENPS OR PHT'SICAI. FEATUR-ES 11 -HAT
r UP TITLE REPORT.
P IN
107 4 47
DRILL '0 '00
10,
n OLD
Ld 1,6 PIN
m LO
cli
0 OD
LOT 5
A 71.64
Ld
F"N 1,467 -85-6427
M OLD
EXHIBIT PLAT SH
A POR FION OF
JERSEY AVENUE TO BE CLOSED Pq CIO
ADJACEN 1' 70 6
S 1 THRU 7, INCLUSIVE, BLOCK 25 AND CD --q: rl
LOTS 3 AND 4, BLOCK 26, EUCLID PLACE
JOHN E. SIRINE AND ASSOCIATES, LTD.
V;RG!.N,A BE ACH, VIRGINIA
ammam
Du
"�"=!_": u. GRAPHIC SCALE SHEET l OF l
Item M.2.
PLANNING ITEM # 55247
Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council APPROVED a
Variance re lot size to §4.4(b) of the Subdivision Ordinance that requires all newly created lots meet the
requirement of the City Zoning Ordinance (CZO) for HERBERT R. SNELLING, JR. to develop two
single-family dwellings at Old Forge Road and Woodlake Road
Appeal to Decisions of Administrative Officers in regard to certain
elements of the Subdivision Ordinance, Subdivision for Herbert R.
Snelling, Jr. Property is located on the west side of Old Forge Road,
approximately 200 feet north of Woodlake Road (GPIN 1477906040).
DISTRICT 3 — ROSE HALL
The following conditions shall be required:
1. Each lot shall have only one (1) single-family dwelling on it as depicted on
the plan entitled, 'PRELIMINARY RESUBDIVISION OF A PORTION OF
PARCEL G-1, " dated September 23, 2005, prepared by ART -RAY CORP.
2. No land disturbance shall be permitted within the Resource Protection
Area or within the variable width buffer, as defined by Chesapeake Bay
Preservation Area Ordinance, without review and approval of appropriate
City staff and, if determined necessary by City staff, the Chesapeake Bay
Preservation Area Board.
Voting: 10-0 (By Consent)
Council Members Voting Aye.-
Harry
ye:
Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S.
McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve,
Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson
Council Members Voting Nay:
None
Council Members Absent:
James L. Wood
May 23, 2006
-42 -
Item V.M.3.
PLANNING ITEM # 55248
Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED an
Ordinance upon application of BURTON and NANCY C. JUDA for a Conditional Use Permit re a
residential kennel for eight (8) dogs:
ORDINANCE UPON APPLICATION OF BURTON AND NANCY C. JUDA FOR A
CONDITIONAL USE PERMIT FOR A RESIDENTIAL KENNEL RO50634156
BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA
Ordinance upon Application of Burton and Nancy C. Juda for a Conditional Use
Permit for a residential kennel on property located at 205 Coventry Road (GPIN
14 6 7319 782). DISTRICT 2 — KEMPSVILLE
The following conditions shall be required:
No more than seven (7) dogs shall be permanently on the property at one time
under the applicants' name.
2. Upon one (1) year from the date of approval, the Zoning Administrator shall
administratively review the Conditional Use Permit. If, at such time, the Zoning
Administrator determines that the Residential Kennel needs additional
consideration based upon complaints, the Conditional Use Permit will be
referred back to the Planning Commission and City Council. In the event that no
valid complaints have been made, the Conditional Use Permit shall remain in
effect.
This Ordinance shall be effective in accordance with Section 107 (f) of the Zoning Ordinance.
Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-third of May Two
Thousand Six.
Voting: 7-2 (By Consent)
Council Members Voting Aye:
Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Richard A.
Maddox, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva
Council Members Voting Nay:
Reba S. McClanan and Rosemary Wilson
Council Members Abstaining:
Mayor Meyera E. Oberndorf
Council Members Absent:
James L. Wood
Mayor OberndorfABSTAINED as she is the proud mother of three (3) dogs and is a resident of the
neighborhood.
May 23, 2006
Item V.M.4
PLANNING
-43 -
Item
43 -
ITEM # 55249
Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED
an Ordinance upon application of COURTHOUSE COMMUNITY UNITED METHODIST
CHURCH for a Conditional Use Permit:
ORDINANCE UPON APPLICATION OF COURTHOUSE
COMMUNITY UNITED METHODIST CHURCH FOR A
CONDITIONAL USE PERMIT FOR A CHURCH EXPANSION
R050634157
BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA
Ordinance upon Application of Courthouse Community United
Methodist Church for a Conditional Use Permit for a church expansion
(Family Life Center) on property located at 2708 Princess Anne Road
(GPIN 1494557644). DISTRICT 7 —PRINCESS ANNE
The following conditions shall be required:
1 The site shall be substantially developed as depicted in the submitted site plan
entitled "Courthouse Community United Methodist Church, Princess Anne
Road Virginia Beach, VA" dated March 23,2006, by Vanasse Hangen
Brustlin, Inc. and as conditioned below. The future parking and future
Sanctuary shown on the plan are not included or approved as part of this
Conditional Use Permit.
2. The building shall be constructed as depicted in the submitted elevations and
rendering entitled "Conceptual Study For Multipurpose Building United
Methodist Church Virginia Beach Virginia" dated March 28, 2006, by Lyall
Design Architects.
3. All outdoor lighting shall be shielded to direct light and glare onto the
property; said lighting and glare shall be deflected, shaded and focused away
from adjoining property. Any outdoor lighting fixtures shall not be erected any
higher than 14 feet.
4 A Category IV landscape buffer shall be installed along the southeastern
property line between the proposed improvements and the adjacent residential
lots.
This Ordinance shall be effective in accordance with Section 107 (fof the Zoning Ordinance.
Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-third of May Two
Thousand Six.
May 23, 2006
Item T!M.4
PLANNING
Voting: 10-0 (By Consent)
Council Members Voting Aye:
ITEM # 55249 (Continued)
Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S.
McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve,
Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson
Council Members Voting Nay:
None
Council Members Absent:
James L. Wood
May 23, 2006
Item V M. 5.
PLANNING
-45 -
Item
45 -
ITEM # 55250
Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED
an Ordinance upon application of UPTON], L.L.C. for a Conditonal Use Permit.
ORDINANCE UPON APPLICATION OF UPTON 1, L.L.C. FOR A
CONDITIONAL USE PERMIT FOR EDUCATIONAL SERVICES
(SOUND ATTENUATION REQ UIRED) 8050634158
BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA
Ordinance upon Application of Upton 1, L.L.C. for a Conditional Use
Permit for educational services (sound attenuation required) on property
located on the east side of Upton Drive, approximately 190 feet north of
Old Dam Neck Road (GPIN 2415741747 — part oj). DISTRICT 7 —
PRINCESS ANNE
The following conditions shall be required:
1. The site shall be developed in accordance with the submitted conceptual site layout
and landscape plan entitled "Bright Futures, Upton Drive, Virginia Beach, VA ",
prepared by MSA PC, and dated December 31, 2005. Said plan has been exhibited
to the City Council and is on file in the Planning Department.
2. The building shall be constructed in accordance with the submitted elevation
entitled "Bright Futures Upton Road, Virginia Beach, VA ", prepared by
Dimensional Designs, Inc., and dated February 14, 2006. Said plan has been
exhibited to the City Council and is on file in the Planning Department.
3. The building construction shall comply with all sound attenuation requirements
specified in the Uniform Statewide Building Code of Virginia. The applicant shall
obtain a Certificate of Occupancy from the Permits and Inspections Division of the
Planning Department before occupancy of the building and issuance of a business
license.
4. The hours of operation are limited to 5:45 am to 6: 30 pm, Monday through Friday.
Children shall not be allowed outside to play before 8:00 am. The trash dumpster
shall not be emptied before 8:00 am.
5. The number of children is limited to 180.
6. A right turn lane shall be constructed from Upton Drive into the site.
This Ordinance shall be effective in accordance with Section 107 (f) of the Zoning Ordinance.
Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-third of May Two
Thousand Six.
May 23, 2006
Item V.M.S.
PLANNING
Voting
10-0 (By Consent)
Council Members Voting Aye.-
Harry
ye:
ITEM # 55250 (Continued)
Harry E. Diezel, Robert M. Dyer, Vic
McClanan, Richard A. Maddox, Mayor
Peter W. Schmidt, Ron A. Villanueva and
Council Members Voting Nay.-
None
ay:
None
Council Members Absent:
James L. Wood
Mayor Louis R. Jones, Reba S.
Meyera E. Oberndorf, Jim Reeve,
Rosemary Wilson
May 23, 2006
Item V M.6.
PLANNING
-47 -
ITEM # 55251
Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED
an Ordinance upon application of CARUANA CONSTRUCTION, INC. for a Conditional Chan e o
Zoning District Classification:
ORDINANCE UPON APPLICA TION OF CAR UANA CONSTRUCTION,
INC. FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION
FROMAG-2 TO CONDITIONAL R-20 Z05061253
BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA
Ordinance upon Application of Caruana Construction, Inc. for a Change
of Zoning District Classification from AG -2 Agricultural District to
Conditional R-20 Residential District on property located on the east
side of Seaboard Road, approximately 1 mile north of Princess Anne
Road (GPIN 2403762562). DISTRICT 7 — PRINCESS ANNE
The following condition shall be required:
1. An agreement encompassing proffers shall be recorded with the Clerk of the Circuit
Court and is hereby made a part of the record.
This Ordinance shall be effective in accordance with Section 107 (f) of the Zoning Ordinance.
Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-third of May Two
Thousand Six.
Voting: 10-0 (By Consent)
Council Members Voting Aye:
Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S.
McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve,
Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson
Council Members Voting Nay:
None
Council Members Absent:
James L. Wood
May 23, 2006
In Reply Refer To Our File No. DF -6374
TO: Leslie L. Lilley
FROM: B. Kay Wilsoo�-'
CITY OF VIRGINIA BEACH
INTER -OFFICE CORRESPONDENCE
DATE: May 10, 2006
DEPT: City Attorney
DEPT: City Attorney
RE: Conditional Zoning Application; Caruana Construction, Inc.
the
The above -referenced conditional zoning application is scheduled to be heard by
City Council on May 23, 2006. 1 have reviewed the subject proffer agreement, dated
November 29, 2005, and have determined it to be legally sufficient and in proper le al
form. A copy of the agreement is attached. g
further. Please feel free to call me if you have any questions or wish to discuss this matter
BKW/ks
Enclosure
cc: Kathleen Hassen
CARUANA CONSTRUCTION, INC., a Virginia corporation
KEBCO ENTERPRISES, INC., a Virginia corporation
TO (PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS)
CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of
Virginia
THIS AGREEMENT, made this 29th day of November, 2005, by and between
CARUANA CONSTRUCTION, INC., a Virginia corporation, Grantor, party of the
first part; KEBCO ENTERPRISES, INC., a Virginia corporation, Grantor, party of
the second part; and THE CITY OF VIRGINIA BEACH, a municipal corporation of
the Commonwealth of Virginia, Grantee, party of the third part.
WITNESSETH:
WHEREAS, the party of the second part is the owner of a certain parcel of
property located in the Princess Anne District of the City of Virginia Beach,
containing approximately 2.1 acres which is more particularly described in Exhibit
"A" attached hereto and incorporated herein by this reference, which parcel is
herein referred to as the "Property"; and
WHEREAS, the party of the first part as contract purchaser of the Property
has initiated a conditional amendment to the Zoning Map of the City of Virginia
Beach, Virginia, by petition addressed to the Grantee so as to change the Zoning
Classification of the Property from AG -2 to Conditional R-20; and
WHEREAS, the Grantee's policy is to provide only for the orderly development
of land for various purposes through zoning and other land development legislation;
and
GPIN: 2403-76-2562
PREPARED BY:
NIB SYK£S. ROURDON.
90 AHERN & LWY. P.C.
1
PREPARED BY.
OW SYK£S. ROURDON,
GST" ',R£RN & LEVY. P.C.
WHEREAS, the Grantors acknowledge that the competing and sometimes
incompatible uses conflict and that in order to permit differing uses on and in the
area of the Property and at the same time to recognize the effects of change, and
the need for various types of uses, certain reasonable conditions governing the use
of the Property for the protection of the community that are not generally
applicable to land similarly zoned are needed to cope with the situation to which
the Grantors' rezoning application gives rise; and
WHEREAS, the Grantors have voluntarily proffered, in writing, in advance of
and prior to the public hearing before the Grantee, as a part of the proposed
amendment to the Zoning Map, in addition to the regulations provided for the R-20
Zoning District by the existing overall Zoning Ordinance, the following reasonable
conditions related to the physical development, operation, and use of the Property
to be adopted as a part of said amendment to the Zoning Map relative and
applicable to the Property, which has a reasonable relation to the rezoning and the
need for which is generated by the rezoning.
NOW, THEREFORE, the Grantors, for themselves, their successors.
personal representatives, assigns, grantee, and other successors in title or
interest, voluntarily and without any requirement by or exaction from the Grantee
or its governing body and without any element of compulsion or quid pro quo for
zoning, rezoning, site plan, building permit, or subdivision approval, hereby make
the following declaration of conditions and restrictions which shall restrict and
govern the physical development, operation, and use of the Property and hereby
covenant and agree that this declaration shall constitute covenants running with
the Property, which shall be binding upon the Property and upon all parties and
persons claiming under or through the Grantors, their successors, personal
representatives, assigns, grantee, and other successors in interest or title:
1. When the Property is developed it shall be subdivided with the
dedication and restricted access substantially as depicted on the "REZONING
EXHIBIT FOR CARUANA CONSTRUCTION ON SEABOARD ROAD", dated
November 29, 2005, and prepared by John E. Sirine & Associates, Ltd. ("Concept
Plan") which has been exhibited to the Virginia Beach City Council and is on file
with the Virginia Beach Department of Planning.
PREPARED BY:
Q. t SYK£S. BOURDON.
;. �''_ 'URN & 1.RVY. P.C.
2. When the Property is developed, the residential dwellings constructed
on the Property shall have visible exterior surfaces, excluding roof, trim, windows,
and doors, which are no less than 75% brick, stone or similar high quality
materials.
3. As a condition precedent to subdivision approval, a landscaping plan
for the Transition Area Buffer which will include a section of multi-purpose trail
parallel to the frontage on Seaboard Road shall be submitted to and approved by
the Planning Director or his designee.
4. The party of the first part recognizes that the subject site is located
within the Transition Area identified in the Comprehensive Plan of the City of
Virginia Beach, adopted on December 2, 2003. In addition to integrating
significant open spaces with a low density, high quality, housing component as
specified in the Comprehensive Plan, the party of the first part agrees to contribute
the sum of Seven Hundred Fifty Dollars ($750.00) per lot to Grantee to be utilized
by the Grantee to acquire land for open space preservation pursuant to Grantee's
Outdoors Plan. If the funds proffered by the party of the first part in this
paragraph are not used by the Grantee anytime within the next twenty (20) years
for the purpose for which they are proffered, then any funds paid and unused may
be used by the Grantee for any other public purpose.
5. Further conditions may be required by the Grantee subdivision review
and administration of applicable City Codes by all cognizant City agencies and
departments to meet all applicable City Code requirements.
The above conditions, having been proffered by the Grantors and allowed
and accepted by the Grantee as part of the amendment to the Zoning Ordinance,
shall continue in full force and effect until a subsequent amendment changes the
zoning of the Property and specifically repeals such conditions. Such conditions
shall continue despite a subsequent amendment to the Zoning Ordinance even if
the subsequent amendment is part of a comprehensive implementation of a new or
substantially revised Zoning Ordinance until specifically repealed. The conditions,
however, may be repealed, amended, or varied by written instrument recorded in
the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and
executed by the record owner of the Property at the time of recordation of such
3
PREPARED BY:
�Q10 SWES. BOURIDON.
W ' ` KRN & LEVY. T . K
instrument, provided that said instrument is consented to by the Grantee in
writing as evidenced by a certified copy of an ordinance or a resolution adopted by
the governing body of the Grantee, after a public hearing before the Grantee which
was advertised pursuant to the provisions of Section 15.2-2204 of the Code of
Virginia, 1950, as amended. Said ordinance or resolution shall be recorded along
with said instrument as conclusive evidence of such consent, and if not so
recorded, said instrument shall be void.
The Grantors covenant and agree that:
(1) The Zoning Administrator of the City of Virginia Beach, Virginia, shall
be vested with all necessary authority, on behalf of the governing body of the City
of Virginia Beach, Virginia, to administer and enforce the foregoing conditions and
restrictions, including the authority (a) to order, in writing, that any
noncompliance with such conditions be remedied; and (b) to bring legal action or
suit to insure compliance with such conditions, including mandatory or
prohibitory injunction, abatement, damages, or other appropriate action, suit, or
proceeding;
(2) The failure to meet all conditions and restrictions shall constitute
cause to deny the issuance of any of the required building or occupancy permits as
may be appropriate;
(3) If aggrieved by any decision of the Zoning Administrator, made
pursuant to these provisions, the Grantors shall petition the governing body for
the review thereof prior to instituting proceedings in court; and
(4) The Zoning Map may show by an appropriate symbol on the map the
existence of conditions attaching to the zoning of the Property, and the ordinances
and the conditions may be made readily available and accessible for public
inspection in the office of the Zoning Administrator and in the Planning
Department, and they shall be recorded in the Clerk's Office of the Circuit Court of
the City of Virginia Beach, Virginia, and indexed in the name of the Grantors and
the Grantee.
0
PREPARED BY.
OM SYKES. ROURDON.
MP UERN & LEVY. P.0
WITNESS the following signature and seal:
Grantor:
Caruana Construction, Inc.,
a Virginia corporation
By: (SEAL)
Philip J. aruana, President
STATE OF VIRGINIA
CITY OF VIRGINIA BEACH, to -wit:
The foregoing instrument was acknowledged before me this 30th day of
November, 2005, by Philip J. Caruana, President of Caruana Construction, Inc., a
Virginia corporation, Grantor.
r���,h'1_ It /,-ir8l�
My Commission Expires: August 31, 2006
5
Notary Public
PREPARED BY:
M SYKES. BOURDON.
MIN ARERN & LEVY. P.0
WITNESS the following signature and seal:
Grantor:
KEBCO Enterprises, Inc.,
a.Virginia corporation
By:
( )
Kenneth E. Bullock, President
STATE OF VIRGINIA
CITY OF VIRGINIA BEACH, to -wit:
The foregoing instrument was acknowledged before me this 30th day of
November, 2005, by Kenneth E. Bullock President of KEBCO Enterprises, Inc.,
Grantor.
My Commission Expires: August 31, 2006
0
Notary Public
PREPARED BY:
SYKES, BOURDON.
WP A BERN & LEVY. P.C.
EXHIBIT "A"
ALL THAT certain lot, piece or parcel of land, with the buildings and improvements
thereon, situate in the former Pungo Magisterial District, Princess Anne County, now
the City of Virginia Beach, Virginia, designated as "Elvert Creekmore, 2.1 Ac." on a
plat entitled, "Property of Lelar V. Creekmore Est., located near Pungo in Princess
Anne Co., VA.", dated May 10, 1954, and made by W. B. Gallup, County Surveyor,
which plat is duly recorded in the Clerk's Office of the Circuit Court of the City of
Virginia Beach, Virginia, in Map Book 51, at Page 48, said parcel fronting 233.3 feet
on the East side of Nimmo-Pungo Road (now known as Seaboard Road) and
containing 2.1 acres, all as shown on said plat.
GPIN: 2403-76-2562
ConditionaiRezone/CaruanaConstruction/ SeaboardRoad/Proffer
7
Item V.M. 7.
PLANNING
I
ITEM # 55252
Attorney R. E. Bourdon, Phone: 499-8971, represented the applicant.
Upon motion by Vice Mayor Jones, seconded by Councilman Diezel, City Council DEFERRED until the
City Council Session of June 13, 2006, Ordinance upon application of DANNY K. MARTIN for a
Conditional Change of Zoning:
ORDINANCE UPON APPLICATION OF DANNY K. MARTIN FOR A
CHANGE OF ZONING DISTRICT CLASSIFICATION FROM R -5D TO
CONDITIONAL I -I
Ordinance upon Application of Danny K. Martin for a Change of Zoning
District Classification from R -5D Residential Duplex District to
Conditional I-1 Light Industrial District on property located at 5840
Burton Station Road (GPIN 1458894322). DISTRICT 4 — BAYSIDE
This Deferral will enable the applicant to encompass within the proffer that water and sewer be drawn to
the property. This is important with an industrial use.
Voting: 9-0
Council Members Voting Aye.-
Harry
ye:
Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S.
McClanan, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W. Schmidt, Ron
A. Villanueva and Rosemary Wilson
Council Members Voting Nay:
None
Council Members Absent:
Richard A. Maddox and James L. Wood
May 23, 2006
Item V M.8.
PLANNING
-49 -
ITEM # 55253
Stephen White, Planning Evaluations Co -Ordinator„ distributed a Plan Revision, which is hereby made a
part of the record.
Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED an
Ordinance upon application of DELAWARE CORPORA TIONfor a Conditional Change of Zoning:
ORDINANCE UPON APPLICATION OF DELAWARE CORPORATION
FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM R-
20 TO CONDITIONAL I-2 ZO5061254
BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA
Ordinance upon Application of Delaware Corporation for a Chane o
Zoning District Classiftcation from R-20 Residential District to
Conditional I-2 Heavy Industrial District on property located on the
north side of London Bridge Road, approximately 175 feet east of
Harpers Road (GPINs 2405422428; 2405422332). DISTRICT 7 —
PRINCESS ANNE
The following condition shall be required:
1. An agreement encompassing proffers shall be recorded with the Clerk of the Circuit
Court and is hereby made a part of the record.
This Ordinance shall be effective in accordance with Section 107 (1) of the Zoning Ordinance.
Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-third of May Two
Thousand Six.
Voting: 10-0 (By Consent)
Council Members Voting Aye:
Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S.
McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve,
Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson
Council Members Voting Nay:
None
Council Members Absent:
James L. Wood
May 23, 2006
In Reply Refer To Our File No. DF -6440
CITY OF VIRGINIA BEACH
INTER -OFFICE CORRESPONDENCE
DATE: May 10, 2006
TO: Leslie L. Lilley
,� DEPT: City Attorney
FROM: B. Kay Wilsoi��l'
DEPT: City Attorney
RE: ConditioniZonin9 q pp/ication • De%ware Corporation
The above -referenced conditional zoning application is scheduled
the City Council on May 23, 2006. 1 have reviewed the subject roll e be heard by
January 30, 2006, and have determined it to be legally sufficient ander agreement, dated
A copy of the agreement is attached. ►n proper legal form.
further.
Please feel free to call me if you have any questions or wish to discuss this matter
BKW/ks
Enclosure
cc: Kathleen Hassen
DELAWARE CORPORATION, a Virginia corporation
THE TAYLOR GROUP, L.L.L.P., a Virginia limited liability limited partnership
TO (PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS)
CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of
Virginia
THIS AGREEMENT, made this 30th day of January, 2006, by and between
DELAWARE CORPORATION, a Virginia corporation, Grantor, party of the first
part; THE TAYLOR GROUP, L.L.L.P., a Virginia limited liability limited partnership,
Grantor, party of the second part; and THE CITY OF VIRGINIA BEACH, a
municipal corporation of the Commonwealth of Virginia, Grantee, party of the
third part.
WITNESSETH:
WHEREAS, the party of the second part is the owner of certain property
located in the Beach District of the City of Virginia Beach, containing
approximately 43.3 acres and described in Exhibit "A" attached hereto and
incorporated herein by this reference (the "Property"); and
WHEREAS, the party of the first part, being the contract purchaser of the
Property has initiated a conditional amendment to the Zoning Map of the City of
Virginia Beach, Virginia, by petition addressed to the Grantee so as to change the
Zoning Classification of the Property from R-20 Residential District to Conditional
I-2 Industrial District; and
WHEREAS, the Grantee's policy is to provide only for the orderly
development of land for various purposes through zoning and other land
development legislation; and
GPIN: 2405-42-2428
Prepared by:
Williams Mullen
222 Central Park Avenue
Virginia Beach, VA 23462
1
WHEREAS, the Grantors acknowledge that the competing and sometimes
incompatible development of various types of uses conflict and that in order to
permit differing types of uses on and in the area of the Property and at the same
time to recognize the effects of change that will be created by the Grantors'
proposed rezoning, certain reasonable conditions governing the use of the Property
for the protection of the community that are not generally applicable to land
similarly zoned are needed to resolve the situation to which the Grantors' rezoning
application gives rise; and
WHEREAS, the Grantors have voluntarily proffered, in writing, in advance of
and prior to the public hearing before the Grantee, as a part of the proposed
amendment to the Zoning Map with respect to the Property, the following
reasonable conditions related to the physical development, operation, and use of
the Property to be adopted as a part of said amendment to the Zoning Map relative
and applicable to the Property, which has a reasonable relation to the rezoning
and the need for which is generated by the rezoning.
NOW, THEREFORE, the Grantors, their successors, personal
representatives, assigns, grantees, and other successors in title or interest,
voluntarily and without any requirement by or exaction from the Grantee or its
governing body and without any element of compulsion or quid pro quo for zoning,
rezoning, site plan, building permit, or subdivision approval, hereby make the
following declaration of condi'dons and restrictions which shall restrict and govern
the physical development, operation, and use of the Property and hereby covenant
and agree that this declaration shall constitute covenants running with the
Property, which shall be binding upon the Property and upon all parties and
persons claiming under or through the Grantors, their successors, personal
representatives, assigns, grantees, and other successors in interest or title:
1. When the Property is developed, the vehicular access, parking,
landscaping, building locations and setbacks shall be substantially as depicted on
the exhibit entitled, "CONCEPTUAL SITE LAYOUT 8s LANDSCAPE PLAN OF
LONDON BRIDGE RV/BOAT STORAGE, London Bridge Road, Virginia Beach, VA,"
dated 01/27/06, prepared by MSA, P.C., which has been exhibited to the Virginia
04,
Beach City Council and is on file with the Virginia Beach Department of Planning
(hereinafter "Concept Plan").
2. The area of this parcel depicted as "Bulk Storage" on the Concept
Plan shall only be utilized for storage of registered/ operable recreation vehicles
("RV"), watercraft, trailers, all terrain vehicles (ATV), motorcycles and motor
vehicles.
3. When the Property is developed, the exterior of the buildings
designated "TYPE A BUILDING" on the Concept Plan shall be substantially similar
in architectural features, building materials and appearance to the elevations
shown on the exhibit entitled, "TYPE A BUILDING PLAN/ELEVATION FOR
LONDON BRIDGE RV/BOAT STORAGE", dated 01/27/06, prepared by MSA, P.C.,
which has been exhibited to the Virginia Beach City Council and is on file with the
Virginia Beach Department of Planning (hereinafter "Office Storage Elevations").
4. When the Property is developed, all freestanding signs shall be no
greater than eight feet (8') in height and shall be substantially similar in
architectural design, appearance, and building materials as depicted on the
Concept Plan. All identification signs of occupants facing London Bridge Road
shall limit their identification signage to lettering on the awnings of their units.
Additional signage for such units may be placed on the northern side of such
units.
5. The buildings built on the Property will not exceed thirty-five feet (35')
in height.
6. The following land uses shall not be permitted on the Property unless
approved by subsequent Modification of these Proffered Covenants, Restrictions
and Conditions by the Grantee in accordance with its Comprehensive Zoning
Ordinance:
a. Airports, heliports, and helistops;
b. Bingo halls;
C. Borrow pits;
d. Car wash facilities;
e. Childcare and childcare education centers;
f. Eating and drinking establishments;
g. Firewood preparation facility;
h. Hotels and motels;
i. Mobile home sales;
3
j. Personal watercraft rentals;
k. Public schools, colleges and universities and private schools,
colleges and universities;
1. Public utility transformer stations and major transmission lines
and towers;
In. Radio or television transmission, cellular telephone antenna
and relay stations;
n. Satellite wagering facility;
o. Vocational, technical, industrial and trade schools;
p. Solid waste management facilities;
q. Wholesale and retail establishments dealing primarily in bulk
materials delivered by ship or by ship and railroad or ship and
railroad and truck in combination;
r. Storage or processing of salvage, scrap or junk;
S. Facilities for construction, maintenance and repair of vessels;
or
t. Heavy equipment sales and service.
7. Further conditions may be required by the Grantee during detailed
Site Plan and/or Subdivision review and administration of applicable City Codes
by all cognizant City agencies and departments to meet all applicable City Code
requirements.
All references hereinabove to the R-20 and I-2 Districts and to the
requirements and regulations applicable thereto refer to the Comprehensive
Zoning Ordinance and Subdivision Ordinance of the City of Virginia Beach,
Virginia, in force as of the date of approval of this Agreement by City Council,
which are by this reference incorporated herein.
The above conditions, having been proffered by the Grantors and allowed
and accepted by the Grantee as part of the amendment to the Zoning Ordinance,
shall continue in full force and effect until a subsequent amendment changes the
zoning of the Property and specifically repeals such conditions. Such conditions
shall continue despite a subsequent amendment to the Zoning Ordinance even if
the subsequent amendment is part of a comprehensive implementation of a new or
substantially revised Zoning Ordinance until specifically repealed. The conditions,
however, may be repealed, amended, or varied. by written instrument recorded in
the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and
executed by the record owner of the Property at the time of recordation of such
instrument, provided that said instrument is consented to by the Grantee in
0
writing as evidenced by a certified copy of an ordinance or a resolution adopted by
the governing body of the Grantee, after a public hearing before the Grantee which
was advertised pursuant to the provisions of Section 15.2-2204 of the Code of
Virginia, 1950, as amended. Said ordinance or resolution shall be recorded along
with said instrument as conclusive evidence of such consent, and if not so
recorded, said instrument shall be void.
The Grantors covenant and agree that:
(1) The Zoning Administrator of the City of Virginia Beach, Virginia, shall
be vested with all necessary authority, on behalf of the governing body of the City
of Virginia Beach, Virginia, to administer and enforce the foregoing conditions and
restrictions, including the authority '(a) to order, in writing, that any
noncompliance with such conditions be remedied, and (b) to bring legal action or
suit to insure compliance with such conditions, including mandatory or
prohibitory injunction, abatement, damages, or other appropriate action, suit, or
proceeding;
(2) The failure to meet all conditions and restrictions shall constitute
cause to deny the issuance of any of the required building or occupancy permits as
may be appropriate;
(3) If aggrieved by any decision of the Zoning Administrator, made
pursuant to these provisions, the Grantors shall petition the governing body for
the review thereof prior to instituting proceedings in court; and
(4) The Zoning Map may show by an appropriate symbol on the map the
existence of conditions attaching to the zoning of the Property, and the ordinances
and the conditions may be made readily available and accessible for public
inspection in the office of the Zoning Administrator and in the Planning
Department, and they shall be recorded in the Clerk's Office of the Circuit Court of
the City of Virginia Beach, Virginia, and indexed in the names of the Grantors and
the Grantee.
Q
WITNESS the following signature and seal:
Grantor:
Delaware Corporation, a Virginia corporation
B , 1 (SEAL)
Oscar M. Barber, President
STATE OF VIRGINIA
CITY OF VIRGINIA BEACH, to -wit:
The foregoing instrument was acknowledged before me this 31St day of
January, 2006, by Oscar M. Barber, President of Delaware Corporation, a Virginia
corporation, Grantor.
My Commission Expires: A , 6 1) 13D) [)$
X
WITNESS the following signatures and seals:
Grantors:
The Taylor Group, L.L.L.P., a Virginia limited
liability limited partnership
By: LTC Management, Inc., a Virginia
corporation, General Partner
By:
(SEAL)
omas E. Sny r, Authorized
Signatory in the place and stead of
Linda T. Chappell, President
By. � (SEAL)
�rns E Snyde Authorized
Signatory in the place and stead of
Linda T. Chappell, General Partner
By. (SEAL)
mas E. Sn er, Authorized
Signatory in the place and stead of
Barbara T. Creech, General Partner
STATE OF VIRGINIA
CITY OF VIRGINIA BEACH, to -wit:
The foregoing instrument was acknowledged before me this
2006, by Thomas E. Snyder, Authorized Si � dap of
Ste d of Linda T. Chappell, President of LTC Management, Inc., a iVi Virginia
corporation, General Partner of The Taylor Group, L.L.L.P., a Virginia' limited
liability limited partnership, Grantor.
My Commission Expires: Ll i
3 v I D 9-,
7
Notary lic
STATE OF VIRGINIA
CITY OF VIRGINIA BEACH, to -wit:
The foregoing instrument was acknowledged before me this Q day of
2006, by Thomas E. Snyder, Authorized Signatory in the place and
stead' -of Linda T. Chappell, General Partner of The Taylor Group, L.L.L.P., a
Virginia limited liability limited partnership, Grantor.
I AMIA WIM
• f• •
My Commission Expires: t 1) 3DI of
STATE OF VIRGINIA
CITY OF VIRGINIA BEACH, to -wit:
The foregoing instrument was acknowledged before me this '3 *14 day of
2006, by Thomas E. Snyder, Authorized Signatory in the place and
stAd of Barbara T. Creech, General Partner of The Taylor Group, L.L.L.P., a
Virginia limited liability limited partnership, Grantor.
Q, 8-c�-L-Q-
Notaryl>ublic
My Commission Expires: ! ! 3 I f ?
EXHIBIT "A"
ALL THAT certain lot, piece or parcel of land, situate, lying and being in the City of
Virginia Beach, Virginia, and being known, numbered and designated as Parcel B -1-
A, containing approximately 43.278± acres, as shown on that certain plat entitled
"SUBDIVISION OF PROPERTY OF THE TAYLOR GROUP, LLLP PARCEL B-1
INSTRUMENT # 200504280063311 JUNE 1, 2005 VIRGINIA BEACH, VIRGINIA",
which said plat is duly recorded in the Clerk's Office of the Circuit Court of the City
of Virginia Beach, Virginia, as Instrument # 200601110006249.
2405-42-2428
1098362v1
9
Item V.M.9.
PLANNING
-50 -
ITEM # 55254
Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED
an Ordinance upon application of LAWSONHALL ASSOCIATES, L.L.C. for a Conditional Change
of Zoning:
ORDINANCE UPON APPLICATION OF LAWSON HALL
ASSOCIATES, L.L.C. FOR A CHANGE OF ZONING DISTRICT
CLASSIFICATION FROM R-10 TO CONDITIONAL A-12 Z05061255
BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA
Ordinance upon Application of Lawson Hall Associates, L.L.C. for a
Change of Zoning District Classification from R-10 Residential District
to Conditional A-12 Apartment District with a PD -H2 Overlay on
property located at 5525 Lawson Hall Road (GPIN 1468372672).
DISTRICT 4 — BAYSIDE
The following condition shall be required:
1. An agreement encompassing proffers shall be recorded with the Clerk of the Circuit
Court and is hereby made apart of the record.
This Ordinance shall be effective in accordance with Section 107 69 of the Zoning Ordinance.
Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-third of May Two
Thousand Six.
Voting: 9-0 (By Consent)
Council Members Voting Aye.-
Harry
ye:
Harry E. Dieze1
Mayor Meyera
Villanueva and
Council Members Voting Nay:
None
Council Members Abstaining:
, Robert M. Dyer, Reba S. McClanan, Richard A. Maddox,
E. Oberndorf, Jim Reeve, Peter W. Schmidt, Ron A.
Rosemary Wilson
Vice Mayor Louis R. Jones
Council Members Absent:
James L. Wood
Vice Mayor Jones ABSTAINED on Item M.9 (Lawson) as he is a Director of Resource Bank, which is
handling the financing of this project.
May 23, 2006
In Reply Refer To Our File No. DF -6353
CITY OF VIRGINIA BEACH
INTER -OFFICE CORRESPONDENCE
DATE: May 10, 2006
TO: Leslie L. Lilley DEPT: City Attorney
FROM: B. Kay Wilson"" DEPT: City Attorney
RE: Conditional Zoning Application; Lawson Hall Associates, LLC
The above -referenced conditional zoning application is scheduled to be heard by
the City Council on May 23, 2006. 1 have reviewed the subject proffer agreement, dated
October 31, 2005, and have determined it to be legally sufficient and in proper legal form.
A copy of the agreement is attached.
further. Please feel free to call me if you have any questions or wish to discuss this matter
BKW/ks
Enclosure
cc: Kathleen Hassen
PREPARED BY:
RIM SYKES, ROURDON,
0,61 UERN & LEVY, P.C.
LAWSON HALL ASSOCIATES, L.L.C., a Virginia limited liability company
TO (PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS)
CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of
Virginia
THIS AGREEMENT, made this 31St day of October, 2005, by and between
LAWSON HALL ASSOCIATES, L.L.C., a Virginia limited liability, Grantor; and
THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth
of Virginia, Grantee.
WITNESSETH:
WHEREAS, the Grantor is the owner of a parcel of property located in the
Bayside District of the City of Virginia Beach, containing a total of approximately
7.23 acres as more particularly described in Exhibit "A" attached hereto and
incorporated herein by reference, which parcel is referred to herein as the
"Property"; and
WHEREAS, the Grantor has initiated a conditional amendment to the
Zoning Map of the City of Virginia Beach, Virginia, by petition addressed to the
Grantee so as to change the Zoning Classification of the Property from R-10
Residential District to Conditional A-12 Apartment District with a PDH -2 Overlay;
and
WHEREAS, the Grantee's policy is to provide only for the orderly
development of land for various purposes through zoning and other land
development legislation; and
WHEREAS, the Grantor acknowledges that competing and sometimes
incompatible uses conflict and that in order to permit differing uses on and in the
area of the Property and at the same time to recognize the effects of change, and
the need for various types of uses, certain reasonable conditions governing the
use of the Property for the protection of the community that are not generally
applicable to land similarly zoned are needed to cope with the situation to which
the Grantor's rezoning application gives rise; and
GPIN: 1468-37-2672-0000
1
PREPARED BY:
RIM SYKES, B®URD®N.
V:1— ' nu & LEvY, P.C.
WHEREAS, the Grantor has voluntarily proffered, in writing, in advance of
and prior to the public hearing before the Grantee, as a part of the proposed
amendment to the Zoning Map, in addition to the regulations provided for the A-
12 (PDH -2) Zoning District by the existing overall Zoning Ordinance, the following
reasonable conditions related to the physical development, operation, and use of
the Property to be adopted as a part of said amendment to the Zoning Map
relative and applicable to the Property, which has a reasonable relation to the
rezoning and the need for which is generated by the rezoning.
NOW, THEREFORE, the Grantor, for itself, its successors, personal
representatives, assigns, grantee, and other successors in title or interest,
voluntarily and without any requirement by or exaction from the Grantee or its
governing body and without any element of compulsion or quid pro quo for
zoning, rezoning, site plan, building permit, or subdivision approval, hereby make
the following declaration of conditions and restrictions which shall restrict and
govern the physical development, operation, and use of the Property and hereby
covenants and agrees that this declaration shall constitute covenants running
with the Property, which shall be binding upon the Property and upon all parties
and persons claiming under or through the Grantor, its successors, personal
representatives, assigns, grantee, and other successors in interest or title:
1. When the Property is developed, the entrance, streets, trails,
landscaping and fencing shall be substantially in accordance with the "Concept
Plan `A' LAWSON HALL", dated June 9, 2005, prepared by Porterfield Design
Center, which has been exhibited to the Virginia Beach City Council and is on file
with the Virginia Beach Department of Planning ("Concept Plan").
2. Vehicular Ingress and Egress shall be via one (1) curb cut from
Lawson Hall Road and the Grantor shall dedicate the necessary right of way and
construct a right -turn lane on Lawson Hall Road at its intersection with Diamond
Springs Road.
3. When the Property is developed, there will be no more than sixty-five
(65) residential condominium units, each of which shall have a garage, within
eighteen (18) residential buildings as depicted on the Concept Plan.
2
PREPARED BY:
Q.13 SYKES, POURD®N.
V- 'TERN & LEVY. P.0
4. The Grantor shall record a Declaration of Restrictions ("Deed
Restriction") as a condition of Site Plan Approval, which shall be applicable to the
Property. The Deed Restriction shall be enforced by a Condominium Association
which will be responsible for maintaining the Property and enforcing the
provisions of a Condominium Declaration governing the Property. The Deed
Restriction shall require that every occupied residential unit be occupied, on a
full time basis, by at least one (1) adult resident over fifty-five (55) years of age.
The Deed Restriction shall also prohibit persons under twenty (20) years of age
from residing in any residential unit or units for more than ninety (90) days in
any calendar year.
5. The Condominium Association shall own and maintain Lawson Hall
as a community center and its offices. The Grantor shall renovate the building
and furnish the community rooms.
6. As a condition of obtaining Site Plan approval and commencing
development, the Grantor shall submit a Comprehensive Tree and Garden
Preservation Plan to the Grantee's Planning Director and Arborist for review and
approval. The Grantor shall strictly adhere to these Preservation Plans
throughout the development of this community. The Condominium Association
shall be responsible for preserving the trees and gardens, and maintaining the
Property post development.
7. When the Property is developed, the entrance sign and perimeter
fencing depicted on the Concept Plan shall be constructed substantially in
accordance with the exhibit entitled "LAWSON HALL ENTRANCE FEATURE AND
FENCING PLAN", which has been exhibited to the Virginia Beach City Council
and are on file with the Virginia Beach Planning Department ("Fencing Plan").
8. The areas depicted on the Concept Plan which will not be occupied
by buildings, including porches, patios, balconies, or decks, drive aisles, parking
areas, entrance features and fencing are open spaces which may only be utilized
as such. Open Spaces shall be maintained and used by the Condominium
Association consistent with the intent and regulations set forth in Article 3. Of
the Zoning Ordinance ("Preservation District").
3
PREPARED BY:
RIM SYLTS, $OURDON.
V" '11M & LL Y, P.C.
9. Further conditions may be required by the Grantee during detailed
Site Plan review and administration of applicable City Codes by all cognizant City
agencies and departments to meet all applicable City Code requirements.
The above conditions, having been proffered by the Grantor and allowed
and accepted by the Grantee as part of the amendment to the Zoning Ordinance,
shall continue in full force and effect until a subsequent amendment changes the
zoning of the Property and specifically repeals such conditions. Such conditions
shall continue despite a subsequent amendment to the Zoning Ordinance even if
the subsequent amendment is part of a comprehensive implementation of a new
or substantially revised Zoning Ordinance until specifically repealed. The
conditions, however, may be repealed, amended, or varied by written instrument
recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach,
Virginia, and executed by the record owner of the Property at the time of
recordation of such instrument, provided that said instrument is consented to by
the Grantee in writing as evidenced by a certified copy of an ordinance or a
resolution adopted by the governing body of the Grantee, after a public hearing
before the Grantee which was advertised pursuant to the provisions of Section
15.2-2204 of the Code of Virginia, 1950, as amended. Said ordinance or
resolution shall be recorded along with said instrument as conclusive evidence of
such consent, and if not so recorded, said instrument shall be void.
The Grantor covenants and agrees that:
(1) The Zoning Administrator of the City of Virginia Beach, Virginia,
shall be vested with all necessary authority, on behalf of the governing body of
the City of Virginia Beach, Virginia, to administer and enforce the foregoing
conditions and restrictions, including the authority (a) to order, in writing, that
any noncompliance with such conditions be remedied; and (b) to bring legal
action or suit to insure compliance with such conditions, including mandatory or
prohibitory injunction, abatement, damages, or other appropriate action, suit, or
proceeding;
(2) The failure to meet all conditions and restrictions shall constitute
cause to deny the issuance of any of the required building or occupancy permits
as may be appropriate;
0
PREPARED BY:
Qf SYKES. BOUPDON.
V kREPN & Lam. P.C.
(3) If aggrieved by any decision of the Zoning Administrator, made
pursuant to these provisions, the Grantor shall petition the governing body for
the review thereof prior to instituting proceedings in court; and
(4) The Zoning Map may show by an appropriate symbol on the map the
existence of conditions attaching to the zoning of the Property, and the
ordinances and the conditions may be made readily available and accessible for
public inspection in the office of the Zoning Administrator and in the Planning
Department, and they shall be recorded in the Clerk's Office of the Circuit Court
of the City of Virginia Beach, Virginia, and indexed in the name of the Grantor
and the Grantee.
E
Department, and they shall be recorded in the Clerk's Office of the Circuit Court
of the City of Virginia Beach, Virginia, and indexed in the name of the Grantor
and the Grantee.
PREPARED BY:
M SMS, BOURDON.
Gam"" UERNN & L£VY. P.C.
5
PREPARED BY:
OM SYKES, BOURDON.
vm UMN & LEVY, P.0
WITNESS the following signature and seal:
Grantor:
liabilityLawson Hall Associates, L.L.C.,
a Virginia limited . ..
!
STATE OF VIRGINIA
CITY OF VIRGINIA BEACH, to -wit:
The foregoing instrument was acknowledged before me this 31St day of
October, 2005, by Thomas Gallagher, Managing Member of Lawson Hall
Associates, L.L.C., a Virginia limited liability company.
My Commission Expires: August 31, 2006
n.
i �_
Notary Public
EXHIBIT "A"
ALL THAT CERTAIN lot, piece or parcel of land, with the buildings and
improvements thereon, if any, situated in the City of Virginia Beach, State of
Virginia, and known, numbered and designated as Lot 88, on that certain plat
entitled, "Subdivision of a Portion of The Hodgman Property for R.G. Moore
Building Corporation, a Virginia Corporation, and Independent Developers, Ltd.,
a Virginia Corporation, Bayside Borough, Virginia Beach, Virginia", dated July
17, 1984, made by Langley & McDonald, and recorded in the Clerk's Office of the
Circuit Court of the City of Virginia Beach, Virginia, in Map Book 188, at Page 21,
containing 314,981 square feet or 7.23 acres.
GPIN: 1468-37-2672-0000
ConditionalRezone / LawsonHaUAssociate s/ Proffer
PREPAREO BY:
.: SYM, BOURDON,
"gbRN & LEVY. PC
7
-51 -
Item V N.1.
APPOINTMENTS ITEM # 55255
BY CONSENSUS, City Council RESCHEDULED:
ARTS AND HUMANITIES COMMISSION
BIKEWAYS AND TRAILS ADVISORY COMMITTEE
GREEN RIBBON COMMITTEE
HAMPTON ROADS PLANNING DISTRICT COMMISSION — HRPDC
INVESTMENT PARTNERSHIP ADVISORY COMMITTEE — PPEA
MEAL TAX TASK FORCE
MINORITY BUSINESS COUNCIL
OCEANA LAND USE CONFORMITY COMMITTEE
PARKS AND RECREATION COMMISSION
SOCIAL SERVICES BOARD
SPORTS A UTHORITY OF HAMPTON ROADS
TIDEWATER COMMUNITY COLLEGE BOARD
TIDEWATER REGIONAL GROUP HOME COMMISSION
TOWING ADVISORY BOARD
TRANSPORTATION DISTRICT COMMISSION OF HAMPTON ROADS - TTDC
May 23, 2006
-52 -
Item V -P.1.
NEW BUSINESS ITEM # 55256
CITY CLERK TO RECORD, BY CONSENSUS.
ABSTRACT OF VOTES
May 2, 2006, COUNCILMANIC and SCHOOL BOARD Election
May 23, 2006
-53 -
Item V -P.2.
NEW BUSINESS ITEM # 55257
ADD-ON
Upon motion by Councilman Reeve, seconded by Council Lady Wilson, City Council ADDED to the
Agenda:
Resolution to REFER to the Planning Commission an Ordinance to
AMEND the Comprehensive Plan by revising the Princess Anne
Corridor Plan to incorporate provisions pertaining to certain
commercial uses in Sub Area I
Voting: 9-0
Council Members Voting Aye:
Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S.
McClanan, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W. Schmidt, Ron
A. Villanueva and Rosemary Wilson
Council Members Voting Nay:
None
Council Members Absent:
Richard A. Maddox and James L. Wood
May 23, 2006
-54 -
Item i- P.3.
NEW B USINESS ITEM # 55258
/
Attorney R. J. Nutter, represented the owners of the property and their pending application. Attorney
Nutter spoke in OPPOSITION to the proposed amendment.
A motion was made by Councilman Reeve to ADOPT:
Resolution to REFER to the Planning Commission an Ordinance to
AMEND the Comprehensive Plan by revising the Princess Anne
Corridor Plan to incorporate provisions pertaining to certain
commercial uses in Sub Area I
MOTION FAILED FOR LACK OF A SECOND.
May 23, 2006
Item V -Q.
ADJOURNMENT
-55 -
ITEM # 55259
Mayor Meyera E. Oberndorf DECLARED the City Council Meeting ADJOURNED at 8:23 P.M.
'?every O. Hooks, CMC
Chief Deputy City Clerk
1ac7—
4th Hodges Smith, MMC
City Clerk
City of Virginia Beach
Virginia
Meyera E. Oberndorf
Mayor
May 23, 2006