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Home My WebLink AboutMARCH 13, 2007 MINUTES CITY OF VIRGINIA BEACH "COMMUNITY FOR A LIFETIME" CITY COUNCIL MAYOR MEYERA E. OBERNDORF, At-Large VICE MA YOR LOUIS R. JONES, Bayside - District .J WILUAM R. DeSTEPH, At-Large HARRY E. DIEZEL, Kempsv1l/e - District 2 ROBERT M. DYER" Centerville - District I BARBARA M. HENLEY, Princess Anne - District 7 REBA S. McCLANAN, Rose Hall - District 3 JOHN E. UHRIN, Beach - District 6 RON A. VILLANUEVA, At-Large ROSEMARY WILSON, At-Large JAMES L. WOOD, Lynnhaven -District 5 CITY COUNCIL AGENDA CITY MANAGER - JAMES K. SPORE CITY A 77VRNEY - LESLIE L. LILLEY CITY CLERK - RUTH HODGES FRASER, MMC 13 MARCH 2007 1. CITY MANAGER'S BRIEFINGS - Conference Room - A. URBAN LAND INSTITUTE (ULI) - "PUNGO CROSSING" Report Jack Whitney - Interim Director - Planning Department B. BUDGET EXECUTION REPORTS 1. Human Resources Fagan Stackhouse, Director 2. Economic Development David Bradley, Interim Director 3. Communication & Information Technology (COMIT) Gwen Cowart, Director II. CITY COUNCIL COMMENTS III. REVIEW OF AGENDA CITY HALL BUILDING 2401 COURTHOUSE DRIVE VIRGINIA BEACH, VIRGINIA 23456-8005 PHONEo(757) 385-4303 FAX (757) 385-5669 E-MAIL: Ctycncl@vbgov.com 1 :30 PM IV. INFORMAL SESSION - Conference Room - 3:30 PM A. CALL TO ORDER - Mayor Meyera E. Obemdorf B. ROLL CALL OF CITY COUNCIL C, RECESS TO CLOSED SESSION V. FORMAL SESSION - Council Chamber - 6:00 PM A. CALL TO ORDER - Mayor Meyera E. Obemdorf B. INVOCATION: Reverend Allen B. Hopkins, DD Pastor, Carrow Baptist Church 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 March 6, 2007 G. AGENDA FOR FORMAL SESSION H. PUBLIC HEARING 1. OPEN AIR CAFE LEASES 1. CONSENT AGENDA J. ORDINANCES/RESOLUTION 1. Ordinance to AUTHORIZE the City Manager to grant one new and seventeen renewal Franchise Agreements re Open Air Cafes at: a. 615 Atlantic Avenue to Ramada on the Beach, LC t/a Mahi Mah's b. 615 Atlantic Avenue to Ramada on the Beach, LC t/a Mahi Mah's c, 701 Atlantic Avenue to Burlage Management Co., Inc. t/a Laverne's d. 809 Atlantic Avenue to Barclay Restaurant Corporation t/a Barclay Towers e. 812 Atlantic Avenue to NWG, Inc. t/a Kimbels f. 910 Atlantic Avenue to Atlantic Bistro, LLC t/a Ribley's g. 1101 Atlantic Avenue to TC JR, Inc. t/a T Casper's Deck and Galley h. 1905 Atlantic Avenue to Osprov Respublik, Inc. t/a Oceanhouse Waterfront 1. 2207 Atlantic Avenue to Osprov Respublik, Inc. t/a 23rd Street Raw Bar J. 2224 Atlantic Avenue to AHATA, Inc. t/a Pier 23 k. 2417 Atlantic Avenue to Blaster Fries, Inc. t/a Lighthouse Beach Grill 1. 2901 Atlantic Avenue to Maria Sofia, Inc. t/a Ellington's m. 3107 Atlantic Avenue to Ocean Ranch Motel Corporation t/a Timbuktu n. 3301 Atlantic Avenue to Four Sails Timeshare Owners Assoc., Inc. t/a Four Sails 0, 202 22nd Street to DAP, Inc. t/a 22nd Street Raw Bar p. 203 22nd Street to Tampico Enterprises, Inc. t/a Abbey Road q, 206 22nd Street to Luna Sea, Inc. t/a Luna Sea 2. Ordinance to AUTHORIZE the City Manager to enter into a Franchise Agreement with VERIZON VIRGINIA, INC. to construct and operate a Cable system within the City of Virginia Beach which shall effectively be retroactive to December 22,2006 3. Ordinance to AUTHORIZE the City Manager to enter into a contract with Cherry, Bekaert & Holland LLP, for an Independent Audit of the City, the Development Authority and the School Division for fiscal years 2007-08 at a contract cost of One Hundred Sixty-Seven Thousand Five Hundred and Fifty Dollars ($153,550 City, $14,000 VBDA, $167,550 Total) for FY 2007 and a four percent (4%) increase for FY 2008 for the City and $1,000 increase for the Development Authority. 4. Resolution to AUTHORIZE the City Manger to enter into an agreement with property owners on Lake Rudee, Lake Wesley or Owl's Creek, who have valid dredging permits, to use the Lake Rudee Disposal Area for privately dredged materials K. PLANNING 1. Applications of VIRGINIA BEACH RACQUET CLUB NORTH ASSOCIATES, LP, at Thomas Bishop Lane and North Great Neck Road. (DISTRICT 5 - L YNNHA VEN) a. Variance to ~4.4(b) ofthe Subdivision Ordinance that requires all newly created lots meet the requirements of the City Zoning Ordinance (CZO) for three single family dwellings b. Conditional Use Permit for a community pier RECOMMENDA TION: APPROVAL 2, Applications of VALUE PLACE REAL ESTATE SERVICES, LLC, 1357 Diamond Springs Road for: (DISTRICT 4 - BA YSIDE) a. Modification of Proffers to allow a change of use from an office/warehouse facility to development of a hotel (approved on February 28, 2006) b. Conditional Use Permit for a 121-unit limited service hotel RECOMMENDATION: APPROV AL 3. Application of WANDA DINARDO for a Conditional Use Permit for a home daycare to accommodate up to nine (9) children at 2424 Peritan Road (DISTRICT 6 - BEACH) RECOMMENDA nON: APPROV AL 4. Application of GREATER REFUGE OUTREACH MISSION for a Conditional Use Permit re a church in a strip retail area at 6113 Indian River Road (DISTRICT 1 - CENTER VILLE) RECOMMENDA nON: APPROV AL L. APPOINTMENTS BEACHES AND WATERWAYS COMMISSION HEALTH SERVICES ADVISORY BOARD INVESTMENT PARTNERSHIP ADVISORY COMMITTEE - PPEA M. UNFINISHED BUSINESS N. NEW BUSINESS O. ADJOURNMENT TOWN HALL MEETINGS April 17 September 18 November 20 Location To Be Announced -7:15 pm Location To Be Announced -7:15 pm Location To Be Announced -7:15 pm CITY COUNCIL BIENNIAL RESOURCE MANAGEMENT WORKSHOP SCHEDULE April 10 (Workshop) April 17 (Workshop) April 19 (Public Hearing) April 24 (Workshop) April 24 (Public Hearing) May 1 (Workshop) May 8 (Reconciliation Workshop) May 15 (Adoption) Council Conference Room Council Conference Room Bayside High School at 6:00 p.m. Council Conference Room Council Chamber at 6:00 p.m. Council Conference Room Council Conference Room Council Chamber at 6:00 p.m. ********* If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 385-4303 *********** Agenda 3113/07/51 W\vw.vbgov.com - 1 - MINUTES VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia 13 March 2007 Mayor Meyera E Oberndorf called to order the City Manager's Briefing re URBAN LAND INSTITUTE (ULI) "PUNGO CROSSING Report in the City Council Conference Room, City Hall, on Tuesday, March 13, 2007, at 1:30 P.M Council Members Present: William R. "Bill" DeSteph, Harry E. Diezel, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Absent: Robert M Dyer [Entered: 1:45 P.M) Ron A. Villanueva [Entered: 1:50 P.M) March 13, 2007 - 2 - C IT Y MANA G E R 'S B R IE FIN G URBAN LAND INSTITUTE (ULI) - "PUNGO CROSSING" Report 1:30 P.M. ITEM # 56177 Jack Whitney - Interim Director - Planning, advised Pungo Crossing is a new term for an old place and was previously referenced as "Pungo Village ". This is a term coined by Urban Land Institute describing the intersection of Indian River Road and Princess Anne Road, or more affectionately, "Downtown Pungo ". This intersection with its environs constitutes approximately three hundred twenty (320) acres. This area is located at the southern margin of the Transition area and bisected by the Urban services boundary (A map was displayed depicting the area). Mr. Whitney referenced the history of the Pungo Crossing: >> June 2005 - City Council Resolution to conduct a study · Begin the process of a Pungo Village Land Use Study · Response to request from Pungo Village Landowners Association >> April 2006 - Urban Land Institute contract executed · Urban Land Institute (ULI) is a non-profit education and research land use planning Organization · 7 member Advisory Services Panel assigned to the study >> June 11- June 16, 2006 Urban Land Institute (UL1) in Virginia Beach to conduct the study June 16,2006, Urban Land Institute (ULI) Preliminary Presentation · Summary of Recommendations >> February 2007 - Final Report received by City of Virginia Beach Urban Land Institute Planning Process >> ULI Advisory Services Panel Seven (7) members from outside of the area · Selected by Urban Land Institute (ULI) for areas of expertise in land use and rural planning >> June 11-June 16,2006 · City Briefing to Panel Members City Bus Tour Study Area Tour · Public Reception Stakeholder Interviews · June 16,2006 Public Presentation · Summary of Urban Land Institute (ULI) Recommendations The following are not staff recommendations but a myriad of observations the Panel from Urban Land Institute (ULI) wishes to forwardfor consideration. Tom Pauls, Comprehensive Planner - Department of Planning, advised of the suggested Land Use Plan for the Pungo area. Urban Land Institute presented their plan in a conceptional format. March 13, 2007 - 3 - C IT Y MANA G E R 'S B R IE FIN G URBAN LAND INSTITUTE (ULI) - "PUNGO CROSSING" Report ITEM # 56177 (Continued) Urban Land Institute (ULl) Guiding Principles ~ Preserve rural character ~ Create a "gateway" to "environmental wonderland" ~ Create an appropriate character that respects: History and Environment ~ Preserve Agricultural area south of Indian River Road ~ Expand activities over time - "Celebrate life in Pungo" ~ Share the experience and excitement Gateways ~ Defined edges Physically and symbolically distinguish urban areas from rural areas ~ Northern Gateway · Seaboard Road & Flanagan's Lane Historically themed housing ~ Southern Gateway · Rural Preservation Buffer · Additional ARP purchases Quadrant Development ~ Intersection Mixed use service & community retail · Village street facade · Renovated historic structures as cornerstone · Sidewalk, trail and pedestrian facilities carried throughout quadrants ~ Northwest Quadrant · Residential uses · Inn · Resort-style services · Equestrian uses · Retail and service uses ~ Southwest Quadrant · Existing uses renovated to guideline standards · Agricultural-equestrian interface Protected wetlands & sensitive lands ~ Northeast Quadrant · Heritage park · Historical structures · Public market · Outdoor arena · Livestock and horse exhibition · Woodland preserve ~ Southeast Quadrant · Civic park · Fire station · Preserved wooded wetlands with recreation trails · Alternative utility system or pump station · Additional ARP purchase March 13, 2007 - 4 - C IT Y MANA G E R 'S B R IE FIN G URBAN LAND INSTITUTE (ULI) - "PUNGO CROSSING" Report ITEM # 56177 (Continued) MAP OF PUNGO CROSSING Key - - ~ Boundary for Pungo Crossing _ Farmers Market _ Open Space Commercial Residential Agricultural Agricultural Reserve ~"-"'~ Areas to Add to the Agricultural Reserve Water Public Use Site Outdoor Arena +- Viewsheds t'.} Gateways ~_.. E-e Access Points ir'ail System ,..... "-,,)- ,.... ,) ~, ~ March 13, 2007 - 5 - C IT Y MANA G E R 'S B R IE FIN G URBAN LAND INSTITUTE (ULI) - "PUNGO CROSSING" Report ITEM # 56177 (Continued) Circulation and Access Management ~ Regional Roadway Systems Eliminate pressure on Princess Anne Road and Indian River Road · Limit rural residential growth to the south · Implement Green Sea Byway ("Green path" following Indian River Road basically from Stumpy Lake to the headwaters of Back Bay) · Prioritize planned regional improvements · Southeastern Parkway Nimmo Parkway ~ Local Circulation System · Speed Limit 25 mph Rural design "village lanes" · Narrow cross section · Strong landscape character · Priority to pedestrian systems · Complementary land use planning · Park once and walk between destinations ~ Access Management Limited points of access on: · Princess Anne Road · Indian River Road · Increased pedestrian mobility Main points of access through: · Internal circulation system Utility Systems ~ Limited Service Area with Defined Edges · Control and coordination by the City · Key to successful rural preservation · Compliance with plan objectives, density, and design requirements Connection at owners' expense · Ensure · Sustainability · Environmental management ~ Within Study Area (Pungo Crossing) · Public Water · Allow extension · Public Sewer Services Allow extension · Three Options: 1) City-owned septic system 2) Alternative centralized sewer system (Puraflo) 3) Extend sanitary sewer Standard pump station Alternative pump system March 13, 2007 - 6- C IT Y MANA G E R 'S B R IE FIN G URBAN LAND INSTITUTE (ULI) - "PUNGO CROSSING" Report ITEM # 56177 (Continued) Urban Land Institute is suggesting that approximately thirty (30) to forty (40) additional dwelling units and approximately 40,000 to 50,000 square feet of additional commercial property should be a part of this Pungo Crossing. The total additional commercial recommended would equate to less than one-half the size of a typical neighborhood shopping center. The idea of community is very important to ULI. Design Character ~ Living village with a mixture of uses · Civic · Commercial · Residential ~ Bugalow-style architectural elements Commercial uses · Residential uses · Appropriate scale and character ~ Parking · In the rear of buildings ~ Streetscape Pedestrian mobility Safety Sidewalks and pathways Plan Actions . Prepare a detailed master plan . Prepare design guidelines . Plan and implement access improvements, including parking . Prepare an implementation strategy for; . Regional pedestrian, bicycle and equestrian trails . Relocation of historic farm buildings . Regional greenways plan . Building improvement program . Prepare a development strategy for; . Relocation of farmers market . A civic park and fire station March 13, 2007 - 7 - C IT Y MANA G E R 'S B R IE FIN G URBAN LAND INSTITUTE (ULI) - "PUNGO CROSSING" Report ITEM # 56177 (Continued) Governance Actions . Quickly initiate actions to begin planning and development of the plan. . Facilitate public/private partnerships. . Define: . decision-making and administrative framework . Initiate: . Environmental preservation strategy. . Scenic byway designation for Princess Anne Road . Implementation of Green Sea Byway . Review: . Comprehensive Plan . Planning ordinances . Develop: . Infrastructure funding plan . Special district andfunding mechanisms . Incentives tool kit . Redefine and clarify the role and implementation of the ARP . Reinstate funding . Aggressively pursue purchase of high-priority properties . Do not pursue ARP purchases north of Indian River Road Agricultural Actions . Limit development densities in the agricultural area (One (1) unit per fifteen (15) acres). (At the present time, a Conditional Use Permit will allow one unit to five (5) acres and one to ten (10) acres, depending upon lot size and soil areas) . Support redevelopment in the core city . Prioritize and actively pursue key lands to preserve . Increase buffer between neighborhoods and agricultural uses . Encourage: . Sustainable development practices (ecobuilding) . Selfsufficiency (community gardens) . Sensitive design pattern o Farmyards o Lanes o Rural architectural character o No curbs or gutters o Minimal manicured lawn area March 13, 2007 - 8 - C IT Y MANA G E R 'S B R I E FIN G URBAN LAND INSTITUTE (ULI) - "PUNGO CROSSING" Report ITEM # ITEM # 56177 (Continued) Urban Land Institute is recommending an Implementation Web be established, a Steering Committee consisting of six (6) elements: Marketing, Retail Development, Roads, Other Infrastructure, Agriculture and Environment. Implementation Web Marketing Environment Retail Develop fllent Steering C 0111 r11 ittee Agriculture Roads at 11er Infrastructure Mr. Whitney advised embarking on a deliberate, comprehensive and inclusive review of the contents of this Urban Land Institute (ULI) study. The City staff must review the study. The Planning Commission and Agricultural Commission must also consider the Study and provide recommendations of City Council. Later this year (Fall), the City will commence updating the Comprehensive Plan, which affords an opportunity to consider these issues as part of this revision. Public comment is critical, as well as the Budget and Capital Improvement requirements. Mr. Whitney advised this will be the City's and community's vision and staff will review ways to implement, not impede it, if agreed to go forward with the ULI proposals. Councilman Wood cautioned concerning the B3A zoning as Town Center, where buildings are permitted to be placed close to the road and parking placed in a structure. Along Shore Drive with the B-4 Zoning, this cannot be done without a Board of Zoning Appeals variance for parking. Mr. Whitney advised some of the recommendations proposed will not be as easily accomplished. The staff is proposing careful consideration of the recommendations. March 13, 2007 - 9 - CITY MANA GER 'S BRIEFING URBAN LAND INSTITUTE (ULI) - "PUNGO CROSSING" Report ITEM # ITEM # 56177 (Continued) Council Lady Henley advised the community has been promised abundant community involvement. This Study is a beginning, not the end product. All of the recommendations need to be carefully examined with comments from many different sources. Mr. Whitney advised this presentation would be given to the Planning Commission, the Agricultural Advisory Commission and interested community groups. Public Works, Public Utilities, Management Services and the City Attorney will also need to be involved in the process. Tom Pauls would be the contact concerning requests of community groups for a presentation and discussion. March 13, 2007 - 10 - BUDGET EXECUTION REPORTS Human Resources 2:15 P.M. ITEM # 56178 Fagan Stackhouse, Director, referenced his Department's Budget Presentation. He considered city employees to be the City's most valuable asset. Human Resources: Revised FY 2006-07 Budget Comp.rllon of Current Rate of Expenditures with Projection .Perunn,' 83% aeonttactual a.rvlou .% 1'" .. C other Chit II" .% ... ... .. 10% d. fO% ............................. ~ w.. .. :. U% ..... M _ ~ ~ ~ ~ ~ ~ 'u . .~ ~ -F!'""Ol1l11l~R." _FYa7R.,. <:. J'" .. Total HurnWl Revised ExptoD.-. FTE'. ~ ~ ~ 896,542 400.012 950 577.318 247,347 700 1,346.669 623,270 1963 598.120 222,883 600 145.346 71,813 2.00 376,773 186,770 500 819,309 426,750 '.00 4,760,075 2.17B.846 57.13 j&I" F}er1c;nn"H1C!'! . Changing workforce due to retirements, demographics, worker migration, and increases in technology . Tracking and managing employee safety and health . Developing and managing a comprehensive learning strategy ~ Director's Office Employee RelatioM Staffing andCompenslItion Learningllnd Development HR Police Servicn Occupational Safety OccupalionalHelllth Workforce Trends · Changing Demographics · Changing Values of Workers · Changing Technology · Job Requirements · Diversity · Retirements Since 1990, the workforce has increased by 4.2% (females). The workforce has decreased by 5.1% (Caucasians) with an increase of 4% (African Americans). The statistics reflect just under 1% for Hispanics, American Indians and Alaska Natives remain approximately 4% of the workforce. The Asian Pacific Islanders are under 12% increase. Approximately five (5) years from now, there will 1,187 fulltime employees will be eligible for retirement benefits, of which 32% of administrators and professionals will be eligible to leave the City between now and 2011 The City's workforce is comprised of the four (4) generations (Traditionalists, Baby Boomers, Generation X and Millenials) Millenials are now beginning to supervise the Traditionalists. One cannot apply or secure a job in the City without utilization of technology. Diversity is representative in the City, not only through race, but skills, competency, thoughts/actions and dynamics.. Over twenty-two (22) different languages are spoken in the City. March 13, 2007 - 11 - BUDGET EXECUTION REPORTS Human Resources ITEM # 56178 (Continued) Worliforce Planning and Development is a tool for managers and employees to make effective decisions. Other cities have borrowed from Virginia Beach's model of Workforce Planning. Every City Department was requested to complete a Workforce Plan aligned with the operational, strategic, envisioning the Plan five, ten, fifteen years "down the road" and blending the Plan with the diversity elements. Mr. Stackhouse displayed the chart identifying Human Resources' Strategic Key Services Mr. Stackhouse advised Human Resources will be consummating a contract with over one hundred (100) different general courses which employees can sign-on on-line and commence classes. Supervisory and leadership courses are also encompassed. Member Communications, a small unit consisting of 1-'12 personnel communicate all information re Health and Well being. More women and minorities are registeringfor the Police and Fire academies. Concerning Retreats, and discussion topics i. e. recruitment, compensation. Mr. Stackhouse referenced the utilization ofWebinars (might expend $60 to $100. This would bring staffinto a conference room up to approximately one (1) hour. The Webinar reaches the entire nation and enables a chance to interact and speak with the presenters. Thus, the travel and associated expenses are avoided. Courses are also offered through this process. The Department of Human Resources has fifty-seven (57) employees, which has increased by approximately five (5). Two employees have been added to assist with recruiting and diversity, working mainly with the Police and Fire Department. The Occupational Health Clinic (consisting often (10) staff members, has increased in the number of exams. A staff person has been added to assist. The Health Clinic serves Public Safety (Police and Sherriff), Emergency Medical Services Volunteers, operators of heavy equipment, and all the drug testing and labor finalization is conducted at this clinic. With the City's current on-line application system, immediately once the application has been received, and an initial review conducted, through all of these phases, immediate feedback is provided. Approximately seventy-jive (75%) of the positions are filled in sixty (60) days or less. Notifications acknowledging are immediate with this new system. March 13, 2007 - 12 - BUDGET EXECUTION REPORTS Economic Development 2:40 P.M. ITEM # 56179 David Bradley, Interim Director - Economic Development, referenced his 2006-2007 Budget Execution Briefing and the Transfers and Reserve equating to 50% indicated on the "pie chart ". The Central Business District - South TIF and the Town Center Special Tax District are assigned to the Economic Development Department. The Town Center Tax Increment Financing (TIF) captures all the incremental real estate taxes that have occurred because of the Town Center development and the surrounding area. These funds are utilized to pay for the parking and debt service associated with the Parking Garages at Town Center. The Special Service District is an additional 57~ rate beyond the 99~ rate that all pay. The Developer pays and this is only related to those businesses at Town Center. This Special Service District rate pays for the operation and maintenance of the garage. The TIF is accumulated in a fund and transferred to the debt service fund to pay debt. The Special Service District is also in a separate fund and much of this is transferred to Public Works (infrastructure - street sweeping). If the TIF is short, the Special Service District and the developer must pay for the shortfall. Vice Mayor Jones advised there is a surplus in the Tax Increment Financing Fund. Administration in the amount of $2,703,175 is slightly higher, as City Council approved $350,000 for the operation of the Tournament Players Club (first three (3) months of this calendar year). There are sixteen (16) Full Time Employees (FTE's), with three (3) vacancies currently including the Director position. The other large portion of the chart consists of Advertising and Public Relations - 22%. Mr. Bradley introduced Mark R. Wawner, Director - Project Management (Amphitheater, Town Center construction, Virginia Beach Development Authority,' Jerry W Stewart - Workforce Planning; Cynthia Whitbred-Spanoulis - Budget and Strategy Development (point person for the marketing campaign). Revised FY 2006-07 Budget Economic Development: J09I 'P'" a Contractual Servic.. 22% aTran.fen & Rel.rves 60% CO",,'ri60. 01 Cu",.l R'" oIE'p,ndilllll' with Projection I.' H% ... o Other Charg.. 9% ~ 50" :'40" ..... M ~ _ O~ ~ ~ ~ ~ ru ~ M~ ~ -FIJHMoIlIlt11R." -Fynll'llt Pr(}J\~ct$ - Workplace Readiness, Town Center Phase III, VBDA Parks, Minority and Woman Owned Busines$ Initiatives, Oceana Land Use ~ .. Hunter Interest Study .. Marketing Campaign .. Target/Diversification Study .. Performance Plan & Accountability Reviled Exp to Ollie ~ El..2UH1 El..2UH1 Administration 2,703.175 942,304 Central Business Disl . South TIF 3.355.094 1.623,774 Town Center Special Tax District 1.086.408 588,283 ToIal 7.144.677 3.154.361 HE', El..2UH1 16.00 16.00 March 13, 2007 - 13 - BUDGET EXECUTION REPORTS Economic Development ITEM # 56179 (Continued) Mr. Bradley advised having the pleasure of being on a panel last week with Dr. James G. Merrill - Superintendent, Virginia Beach City Public Schools,' John S. Kalocay, Assistant Superintendent, and Jerry Stewart, who encompasses a relationship between the Economic Development Department and the Virginia Beach School system. The purpose is to assure students are "ready to work". This program has been in place several years and is a model for the entire state. Fiscal 2007 Year Economic Development Budget Trawl 3.8% Books and Subscriptions .29% Food and Food SeNceS 28% Computer and Mac 43% ,Amphitheater M:tint 2.4% Internal SeNC8s 3.09% .Adwrtising and PR 22.7% Personnel and Fringe 65% C Ailrllonnel and Fringe I:J Adverti&ing and FR [] Tril'lel C hternal Servic_ e Telecomrunciatione a A"ofnaionalllTprovemMlt 0 D.le& and Mltnt:lefshipe e Ol"ice SUppie& [] BooIcs and SUblcr~ions D Food and Food ServJce& 0 Corrputer and Mec o Arrphltheater Pv1iIinl: o LeB6e and Rental Patricia Philips, Director of Finance, advised an annual report is issued concerning the status of the three (3) TIFs. Relative the Town Center TIF, in coordination with the Commissioner of the Revenue, there are other taxes: meals, sales, business licenses, personnel property (all non real estate taxes), for just the core area which generated $3.5-MILLION, as per the 2005 report. March 13, 2007 - 14 - BUDGET EXECUTION REPORTS Communications and Information Technology (COMIT) 2:55 P.M. ITEM # 56180 Gwen Cowart, Director - Communication and Information Technology, referenced the scope of services within the Department. There are eleven (11) main operational areas: General Fund: Systems Support (45 FTE's - $18.3-MlLLION), Operation Support (8 FTE's - $l-MlLLION 21,200 telephone calls),' Application Support (41 FTE's - $6.3-MILLION, 150 different applications and 85 different interfaces between all those applications); Center for GIS (Mapping) (16 FTE's -$1.4-MILLION, maintain 250 separate layers, create over 2,000 parcels every year, also large portion of Mapping on We)b,' Information Security Office (smallest portion - 3 FTE's - $400,000, responsible for all the systems are secure with appropriate privacy),' Public Information Office (11 FTE's - $l-MILLION, hosts Web Team (www.vbgov) - 3.1-MILLION page views last year); 3-1-1 (126,000 calls last year),' Video Services (13 FTE's - $l-MlLLION, create television, multi-media productions, CDsfor the Budget, televised over 11,000 hours ofprogramming and video-streaming); Business Center (13 FTE's - Billingfor all various services),' Emergency Communications 9-1-1 (125 FTE's - $13.2-MILLION - 227,000 calls in 2006,' and 5- Site Radio System); and Internal Service Fund: Consolidated Print Shop and Mail Services (20 FTE's - $3.7-MILLION, printed in FY 20065,500 requests and 30-MILLION impressions, approximately 8,000 pieces of mail are delivered a year); and, Telecommunications Division (provides all telephone services for the municipal complex and the remote City offices - 4400 telephones). Currently the 6-year Capital Improvement Program supports twenty (20) active Communications ($42-MILLION) and Information Technology projects ($33-MILLION). Communications and Information Technology: Revised FY 2006..07 Budget Services ,,% M ~ _ O~ ~ ~ h~ ~ .v . .~ ~" -l'ladllo"lldyR.t.-FY07RII. Penonnel 53% Capital Outlay 3% Comparison of Curr.nt Rate of Expenditures with Pro;ection I.' "" .. If" .. .. . 10" ...,.... 10" .. ~ 50% ..... ... 411".... 30" ".. t&J Total Revised Exp to Date fTE's H.mHI H.mHI H.mHI 23,001,214 9.014.765 158.80 10,334,342 4.694,449 125.00 63.010 3.618.311 1,176.894 15.00 2.273.642 987,121 10,00 1,635.473 175,774 40.925.993 16,649,023 308.80 . High demand for technology solutions .. Staffing .. Multi-sourcing .. Infrastructure Replacement ~ Administration & Support E-911 Communications ACC85S Channel Support Prinl ShoplSF TelecornmunicalionllSF SubKriptions tSF Ollhe lotal FY2006-Q7 budget, 30% is supported by revenue generated from fees and non--General Fund sources March 13, 2007 - 15 - BUDGET EXECUTION REPORTS Communications and Information Technology (COMIT) ITEM # 56180 (Continued) Information Technology Activity Capacity Expansion 10% Routine Waintenance 41% Periodic Updatel Waintenance 31% Relative the replacement of computers, the City has a target replacement cycle offorty-eight (48) months (4-year cycle). The hardware prices are decreasing, but the software is increasing. Problems with staffing exist: 9-1-1 Center in terms of personnel assuming a challenging position and retirements in this Center are still ongoing and highly skilled technology areas (systems analyst, applications support, and systems engineers) COMIT is having a difficult time competing with the private sector in terms of salary. Infrastructure replacement is another hot topic. The Microsoft Enterprise agreement encompassing over $1/2-MILLION is due June 2007. Several large software contracts also hit at the end of the fiscal year. The City was fortunate to obtain a grant ($6-MILLON match with the $2-MILLION COMIT was already investing in the radio structure). The City has worked with a Regional Consortium and implemented ORION, a 700 megahertz radio system that acts as a secondary command and control radio system for the City, in terms of emergencies and terrorism. The Orion connects all the cities and the region not only with voice but also with data). March 13, 2007 - 16 - CITY COUNCIL COMMENTS 3:23 P.M. ITEM # 56181 Council Lady Wilson referenced correspondence from a 77-year old citizen who had to attend Court, and was unable to park at the Municipal Complex. She parked at the Harris Teeter Shopping Center and was towed. Council Lady Wilson expressed concern re inadequate parking and if there are any plans to increase parking in this area. The City Manager advised on certain court days (Jury selections), particularly in the morning, parking is a problem. The staff has been co-coordinating with the Courts, utilizing the lot of the new Communications Center. Unfortunately many Kellam High School students are utilizing this lot also. A portion of the new building Sheriff Lanteigne proposed to construct will have additional parking. However. this building was not funded by the General Assembly either this year or last. A parking problem does exist. Courthouse Market worked with the City and allowed free parking for approximately three (3) months and then had to start towing, as the Harris Teeter spaces were all being utilized. There are signs at Harris Teeter indicating Court parking not allowed. The City Manager advised at the east end of the Municipal Complex, there are normally spaces available. ITEM # 56182 Councilman Uhrin expressed appreciation to the City Clerk, Ruth Hodges Fraser, for providing the Minutes record concerning the Economic Development Investment Program Funds Policy and Procedure (securing businesses paying an average salary of $35,000). During the City Council Retreat. on Monday, March 12, 2007, City Council discussed reconsidering the restriction of this threshold. Staff and Economic Development shall provide further information. The City Manager, advised as this document is City Council Policy, it may be changed. Further information can be provided relative a possible change in the average compensation threshold. Mayor Oberndorf requested the City Attorney assist with the proper format. ITEM # 56183 Councilman Villanueva referenced the discussion during the City Council Retreat concerning the proposal process Councilman Uhrin advised the Hunter Report would be provided during the City Council Workshop of March 20, 2007. A committee could then be organized to review the concepts. The charge of Donald E. Hunter, President - Hunter Interests, Incorporated., is to: . Analyze 3 City-Owned Properties . Highest & Best Use - Benefits to City . Recommend Action to Take Now . Analyze 4 Proposals for a Convention Headquarters Hotel . Interview the Proposers . Analyze and Evaluate . Make Recommendations on the Headquarters Hotel Issue March 13, 2007 - 17 - CITY COUNCIL COMMENTS ITEM # 56184 Councilman Dyer referenced., the Council of Civic Organizations is sponsoring a Forum re gang activity at the Central Library, Wednesday, March 14,2007, 7:00 P.M ITEM # 56185 Vice Mayor Jones referenced the Formula re the tax exemption for the elderly, and whether there was a variance in the percentage of exemptions given to grandparents with dependent grandchildren residing in their home. Vice Mayor Jones requested information re the number of grandparents dealing with the responsibility of actually supporting their grandchildren. Vice Mayor Jones recently spoke to a resident who recently lost her husband and has three (3) grandchildren in her home. The parent is unable to support the children. Vice Mayor Jones understood the benefit she receives is significantly below the benefit a foster parent would receive. A foster parent may receive from $1200 to $1800 a month, while a grandparent may only receive approximately $50 a month. The number of grandparents responsible for their grandchildren in their household is 3,985. The City Manager advised the General Assembly proposed a Bill concerning caregivers. The City Manager advised he will provide further information. Mayor Oberndorf advised Mrs. Kaine, wife of the Governor, has a established a "Forever Home" for children who are forced into foster homes. She spoke on WHRO Radio re requesting the Legislators assisting grandparents so the children could have a "Forever Home" with good guidance. . ITEM # 56186 Councilman DeSteph distributed a REVISED DRAFT (from the Retreat, March 12, 2007): Resolution Directing the City Manager to prepare the City's Annual Budget Based upon Limited Growth in Real Estate Tax Revenues Councilman DeSteph requested comments and a co-sponsor for the Resolution. ITEM # 56187 Council Lady McClanan referenced the invitationfor Tuesday, March 20,2007: Regional Engineers Association re Transportation Social Hour and Dinner 5:00 to 7:00 P.M. Program 7:00 P.M. to 9:00 P.M. The City Council Workshop is scheduledfor Tuesday, March 20,2007, 4:00 P.M - 6:00 P.M March 13, 2007 - 18 - CITY COUNCIL COMMENTS ITEM # 56188 Councilman DeSteph referenced the electronic list forward by Jerald Banagan, Real Estate Assessor, of all the homes (approximately 4500 homes) sold under the assessment report. When this information is sorted by Sale Price, it is very interesting to note that more than 'half of the homes were sold for $300,000 or less and many for less than $200,000 and $100,000. This list does not separate single- family detached residences from town homes and condominiums. Councilman DeSteph distributed the entire sorted by price list. Said information is hereby made a part of the record. Council Lady Wilson advised because there is more products on the market, homes take a longer time to sell. Buyers can be very choosy. Sellers are having to offer more incentives. ITEM # 56189 Mayor Oberndorf referenced a call from Dr. Roseann Runte, President - Old Dominion University, advising the State Council for Higher Education approved. with some restrictions, courses for Old Dominion University in Virginia Beach. "Slow and steady" wins the race. Dr. Runte has proved to be an outstanding Administrator of Old Dominion University. March 13, 2007 - 19 - AGE N DA REV IE W S E S ION 3:54 P.M ITEM # 56190 BY CONSENSUS, thefollowingshall compose the CONSENT AGENDA: J. ORDINANCES/RESOLUTION 1. Ordinances to AUTHORIZE the City Manager to grant a new Franchise Agreement re Open Air Cafe at: a. 2417 Atlantic Avenue to Blaster Fries, Inc. t/a Lighthouse Beach Grill AND renew seventeen Franchise Agreements re Open Air Cafes at: a. 615 Atlantic Avenue to Ramada on the Beach, LC t/a Mahi Mah's b. 615 Atlantic Avenue to Ramada on the Beach, LC t/a Mahi Mah's c. 701 Atlantic Avenue to Bur/age Management Co., Inc. t/a Laverne's d. 809 Atlantic Avenue to Barclay Restaurant Corporation t/a Barclay Towers e. 812 Atlantic Avenue to NWG, Inc. t/a Kimbels f. 910 Atlantic Avenue to At/antic Bistro, LLC t/a Ribley 's g. 1101 Atlantic Avenue to TC JR, Inc. t/a T Casper's Deck and Galley h. 1905 Atlantic Avenue to Osprov Respublik, Inc. t/a Oceanhouse Waterfront i. 2207 Atlantic Avenue to Osprov Respublik, Inc. t/a 23rd Street Raw Bar j. 2224 Atlantic Avenue to AHATA, Inc. t/a Pier 23 k. 2613 Atlantic Avenue to Marianna Entemrises, Inc. t/a Little Feets I. 2901 Atlantic Avenue to Maria Sofia, Inc. t/a Ellington's m. 3107 Atlantic Avenue to Ocean Ranch Mote/ Corporation t/a Timbuktu n. 3301 Atlantic Avenue to Four Sails Timeshare Owners Assoc., Inc. t/a Four Sails o. 202 22nd Street to DAP, Inc. t/a 22nd Street Raw Bar p. 203 22nd Street to Tampico Enterprises, Inc. t/a Abbey Road q. 206 22nd Street to Luna Sea, Inc. t/a Luna Sea 2. Ordinance to AUTHORIZE the City Manager to enter into a Franchise Agreement with VERIZON VIRGINIA, INC. to construct and operate a Cable system within the City of Virginia Beach which shall effectively be retroactive to December 22, 2006 3. Ordinance to A UTHORIZE the City Manager to enter into a contract with Cherry, Bekaert & Holland LLP, for an Independent Audit of the City and the Development Authority for fiscal years 2007-08 at a contract cost of One Hundred Sixty-Seven Thousand Five Hundred and Fifty Dollars ($153,550 City, $14,000 VBDA, $167,550 Total) for FY 2007 and a four percent (4%) increase for FY 2008 for the City and $1,000 increase for the Development Authority. 4. Resolution to AUTHORIZE the City Manger to enter into an agreement with property owners on Lake Rudee, Lake Wesley or Owl's Creek, who have valid dredging permits, to use the Lake Rudee Disposal Area for privately dredged materials Councilman Uhrin will ABSTAIN on Items 1.c. (Burlage Management Co. Inc. t//a Laverne's) and 1.d. (Barclay Restaurant Corporation t/a Barclay Towers) as he has a business relationship with the applicants. March 13, 2007 - 20- AGE N DA REV IE W S E S ION ITEM # 56191 BY CONSENSUS, the following items shall compose the PLANNING BY CONSENT Agenda: 1. PLANNING 1. Applications of VIRGINIA BEACH RACQUET CLUB NORTH ASSOCIATES, LP, at Thomas Bishop Lane and North Great Neck Road. (DISTRICT 5 - LYNNHA VEN) a, Variance to ~4.4(b) of the Subdivision Ordinance that requires all newly created lots meet the requirements of the City Zoning Ordinance (CZO) for three single family dwellings b. Conditional Use Permitfor a community pier 2. Applications of VALUE PLACE REAL ESTATE SERVICES, LLC, 1357 Diamond Springs Road for: (DISTRICT 4 - BA YSIDE) a. Modification of Proffers to allow a change of use from an office/warehouse facility to development of a hotel (approved on February 28, 2006) b, Conditional Use Permit for a 121-unit limited service hotel 3. Application of WANDA DINARDO for a Conditional Use Permit for a home daycare to accommodate up to nine (9) children at 2424 Peritan Road (DISTRICT 6 - BEACH) 4. Application of GREATER REFUGE OUTREACH MISSIONfor a Conditional Use Permit re a church in a strip retail area at 6113 Indian River Road (DISTRICT 1 - CENTERVILLE) Item 1.2. (Value Place Real Estate) will be DEFERRED, BY CONSENT, until the City Council Session of March 27,2007. March 13, 2007 - 21 - ITEM # 56192 Mayor Meyera 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 thefollowingpurpose: 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)(l) Council Appointments: Boards, Commissions, Committees, Authorities and Agencies PUBLICLY-HELD PROPERTY: Discussion or consideration of the condition, acquisition, or use of real property for 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 or lease of Property Princess Anne District/TPC Lynnhaven District LEGAL MATTERS: Consultation with legal counselor 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 pursuantto Section 2.2-3711 (A)(7). SPSA Yard Waste Facility Upon motion by Councilman DeSteph, seconded by Councilman Dyer, City Council voted to proceed into CLOSED SESSION (4:13 P.M.). Voting: 11-0 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None (Closed Session: 4:13 P.M. - 5:10 P.M.) (Break: 4:15 P.M. - 4:21 P.M.) (Dinner: 5:10 P.M. - 5:50 P.M.) March 13, 2007 - 22- FORMAL SESSION VIRGINIA BEACH CITY COUNCIL March 13, 2007 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, March 13, 2007, at 6:00 P.M Council Members Present: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan. Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Absent: None INVOCA TION: Reverend Allen B. Hopkins, DD Pastor, Carrow Baptist Church 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 of January 27, 2004, is hereby made a part 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 a part of the record. March 13, 2007 - 23 - Item V-E. CERTIFICATION OF CLOSED SESSION ITEM # 56193 Upon motion by Councilman Dyer, seconded by Councilman Uhrin, 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: 11-0 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None March 13, 2007 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 #56192, Page 21, and in accordance with the provisions of The Virginia Freedom of Information Act; 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 RESOL VED: 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. uth Hodges Fraser, MMC City Clerk March 13 2007 - 24- Item V-F.J. MINUTES ITEM #56194 Upon motion by Councilman Uhrin, seconded by Council Lady Wilson, City Council APPROVED the Minutes of the INFORMAL and FORMAL SESSIONS of March 6, 2007. Voting: 9-0 Council Members Voting Aye: William R. "Bill" DeSteph, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Abstaining: Harry E. Diezel and Ron A. Villanueva Council Members Absent: None Council Members Diezel and Villanueva ABSTAINED as they were out of the City on business and did not attend the City Council Session of March 6, 2007. March 13, 2007 - 25 - Item V-G 1. ADOPT AGENDA FOR FORMAL SESSION ITEM 56195 BY CONSENSUS, City Council ADOPTED: AGENDA FOR THE FORMAL SESSION March 13, 2007 - 26- Item V-H.J. PUBLIC HEARING ITEM #56196 Mayor Oberndorf DECLARED A PUBLIC HEARING: OPEN AIR CAFE LEASES There being no speakers, Mayor OberndorfCLOSED THE PUBLIC HEARING March 13, 2007 - 27 - Item v'J. ORDINANCES/RESOLUTION ITEM #56197 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council APPROVED IN ONE MOTION Ordinances/Resolution 1,2,3 and 4 of the CONSENT AGENDA Voting: 11-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None Councilman Uhrin VERBALLY ABSTAINED re Items 1.c. (Burlage Management Co. Inc. t//a Laverne's) and 1.d (Barclay Restaurant Corporation t/a Barclay Towers) as he has a business relationship with the applicants March 13, 2007 - 28 - Item V.J.l. ORDINANCES/RESOLUTION ITEM #56198 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: 1. Ordinances to AUTHORIZE the City Manager to grant a new Franchise Agreement re Open Air Cafe at: a. 2417 Atlantic Avenue to Blaster Fries, Inc. t/a Lighthouse Beach Grill AND renew seventeen Franchise Agreements re Open Air Cafes at: a. 615 Atlantic Avenue to Ramada on the Beach, LC t/a Mahi Mah's b. 615 Atlantic Avenue to Ramada on the Beach, LC t/a Mahi Mah 's c. 701 Atlantic Avenue to Burlage Management Co., Inc. t/a Laverne's d. 809 Atlantic Avenue to Barclay Restaurant Corporation t/a Barclay Towers e. 812 Atlantic Avenue to NWG, Inc. t/a Kimbels f 910 Atlantic Avenue to Atlantic Bistro, LLC t/a Ribley 's g. 1101 Atlantic Avenue to TC JR, Inc. t/a T Casper's Deck and Galley h. 1905 Atlantic Avenue to Osprov Respublik, Inc. t/a Oceanhouse Waterfront i. 2207 Atlantic Avenue to Osprov Respublik, Inc. t/a 23rd Street Raw Bar j. 2224 Atlantic Avenue to AHATA, Inc. t/a Pier 23 k. 2613 Atlantic Avenue to Marianna Enterorises. Inc. t/a Little Feets I. 2901 Atlantic Avenue to Maria Sofia, Inc. t/a Ellington's m. 3107 Atlantic Avenue to Ocean Ranch Motel Corporation t/a Timbuktu n. 3301 Atlantic Avenue to Four Sails Timeshare Owners Assoc., Inc. t/a Four Sails o. 202 22nd Street to DAP, Inc. t/a 22nd Street Raw Bar p. 203 22nd Street to Tampico Enterprises, Inc. t/a Abbey Road q. 206 22nd Street to Luna Sea, Inc. t/a Luna Sea Voting: 11-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin*, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None *Councilman Uhrin VERBALLY ABSTAINED re Items I.c. (Bur/age Management Co. Inc. t//a Laverne's) and 1.d. (Barclay Restaurant Corporation t/a Barclay Towers) as he has a business relationship with the applicants March 13, 2007 1 2 3 AN ORDINANCE GRANTING AGREEMENTS FOR OPEN AIR THE RESORT AREA FRANCHISE CAFES IN 4 WHEREAS, by resolution adopted November 15, 1985, City 5 Council authorized the City Manager to promulgate Open Air Cafe 6 Regulations, which have been amended from time to time, for the 7 operation of open air cafes on public property; 8 9 WHEREAS, the regulations originally prohibited sidewalk 10 cafes on Atlantic Avenue between 15th and 24th streets; 11 12 WHEREAS, Council adopted a resolution on March 23, 2004 13 establishing a pilot program to allow, on an experimental basis, 14 open air cafes on Atlantic Avenue between 20th and 23rd Streets; 15 16 WHEREAS, based upon the success of the pilot program, 17 Council adopted an ordinance on March 8, 2005 authorizing 18 sidewalk cafes on Atlantic Avenue between 15th and 24th Streets; 19 20 WHEREAS, the City Council has traditionally granted initial 21 franchises for one~year terms; 22 23 WHEREAS, if an open air cafe is successfully operated 24 during the initial one-year term, the franchisee is given the 25 option of entering into a five-year franchise agreement; 26 27 WHEREAS, Blaster Fries, Inc. t/a Lighthouse Beach Grill is 28 seeking a one-year franchise agreement; 29 30 WHEREAS, the following seventeen (17) entities have 31 successfully operated open air cafes pursuant to either one-year 32 or five-year franchise agreements and are seeking renewal of 33 their franchise agreements for five year terms: (1) DAP, Inc. 34 t/a 22nd Street Raw Bar; (2) Osprov Respublik, Inc. t/a 23rd 35 Street Cafe; (3) Tampico Enterprises, Inc., t/ a Abbey Road; (4) 36 Barclay Restaurant Corporation t/ a Barclay Towers; (5) Atlantic 37 Enterprises, Inc. t/a Ellington's; (6) HWC Investments, Inc. t/a 38 Four Sails; (7) NWG, Inc. t/a Kimbel; (8) Burlage Management 39 Co., Inc. t/a Laverne's; (9) Marianna Enterprises, Inc. t/a 40 Little Feets; (10) Luna Sea, Inc. t/a Luna Sea; (11) Ramada on 41 the Beach, LC t/a Mahi Mah's; (12) Ramada on the Beach, LC t/a 42 Mahi Mah's; (13) Osprov Respublik, Inc. t/a Oceanhouse 43 Waterfront; (14) AHATA, Inc. t/ a Pier 23; (15) TC JR, Inc. t/ a T 44 Casper's Deck and Galley; (16) Ocean Ranch Motel Corporation t/a 45 Timbuktui and, (17) Atlantic Bistro, LLC t/a Ribley'si and 46 WHEREAS, based upon these franchisees' successful operation 47 of open air cafes, the Convention and Visitors Bureau recommends 48 that the franchisees' be granted five-year franchise agreements 49 to continue operating their respective open air cafes. 50 51 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 52 OF VIRGINIA BEACH: 53 54 1. That the City Council hereby grants a one-year 55 franchise agreement to Blaster Fries, Inc., t/a Lighthouse Beach 56 Grill for the operation of an open air cafe in the resort area 57 subj ect to the terms and condi t ions of all ordinances, 58 resolutions, and regulations applicable to open air cafes. 59 60 2. That the City Council hereby grants five-year 61 franchise agreements to (1) DAP, Inc. t/a 22nd Street Raw Bar; 62 (2) Osprov Respublik, Inc. t/ a 23rd Street Cafe; (3) Tampico 63 Enterprises, Inc., t/a Abbey Road; (4) Barclay Restaurant 64 Corporation t/a Barclay Towers; (5) Atlantic Enterprises, Inc. 65 t/a Ellington's; (6) HWC Investments, Inc. t/a Four Sails; (7) 66 NWG, I nc . t / a Ki mbe I ; ( 8 ) Bur I age Managemen t Co., I nc . t / a 67 Laverne's; (9) Marianna Enterprises, Inc. t/a Little Feets; (10) 68 Luna Sea, Inc. t/a Luna Sea; (11) Ramada on the Beach, LC t/a 69 Mahi Mah's; (12) Ramada on the Beach, LC t/a Mahi Mah's; (13) 70 Osprov Respublik, Inc. t/ a Oceanhouse Waterfront; (14) ARATA, 71 Inc. t/a pier 23; (15) TC JR, Inc. t/a T Casper's Deck and 72 Galley; (16) Ocean Ranch Motel Corporation t/a Timbuktu; and, 73 (17) Atlantic Bistro, LLC t/a Ribley's for the operation of open 74 air cafes in the resort area, subject to the terms and 75 conditions of all ordinances, resolutions, and regulations 76 applicable to open air cafes. 77 78 Adopted by the City Council of Virginia Beach, Virginia on 79 this ~1th- day of March ,2007. APPROVED AS TO CONTENTS: SUFFICIENCY: APPROVED AS TO LEGAL ~ CA10~27 V:\applications\citylawprod\cycom32\Wpdocs\D026\P002\00028866.DO C R-1/February 26, 2007 - 29 - Item V, J. 2. ORDINANCES/RESOLUTION ITEM #56199 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Ordinance to A UTHORIZE the City Manager to enter into a Franchise Agreement with VERIZON VIRGINIA, INC. to construct and operate a Cable system within the City of Virginia Beach which shall effectively be retroactive to December 22, 2006 Voting: 11-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph. Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin. Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None March 13, 2007 City of Virginia Beach, Virginia Cable Television Franchise Ordinance For Verizon Virginia Inc. Approved by the City of Virginia Beach Council onMarch -13 2007 TABLE OF CONTENTS ARTICLE PAGE 1. SHORT TITLE............... ................................... ........... .............. ...... .......... ............... ........ 4 2. DEFINITIONS.. ................... ...... .......................... ......... .............. ................... .............. ...... 4 3. GRANT OF AUTHORITY; LIMITS AND RESERVATIONS .......................................9 4. PROVISION OF CABLE SERVICE .............................................................................. 11 5 . SYSTEM OPERATION ................. ..... ............... ...... ...... .......... ..... ......... ............. ........ .... 14 6. SYSTEM FACILITIES......... .......................... .... ..... ........ ......... ......... ......... .... ..... ........... 14 7. PEG SERVICES.......... ..... ...... ......... ..... ...... ............. ....... ................ ........... ................. ..... 15 8. FRANCHISE FEES.. ... ........... ... ........................ ............ ................................... .......... ..... 16 9. CUSTOMER SERVICE........ ............................. ....... ................. .................... ................. 17 10. REPORTS AND RECORDS........................................................................................... 17 11. INSURANCE AND INDEMNIFICATION ....................................................................20 12. TRANSFER OF FRANCHISE.................................................... ..... ..... .......................... 22 13 . RENEWAL OF FRANCHISE............................... ................ .......................................... 22 14. ENFORCEMENT AND TERMINATION OF FRANCHISE ........................................ 22 15. MISCELLANEOUS PROVISIONS....................... .............. ...... ......... ........ .................... 25 EXHIBIT A - INITIAL SERVICE AREA ..................................................................................... EXHIBIT B- CUSTOMER SERVICE STANDARDS .................................................................. EXHIBIT C - IRREVOCABLE LETTER OF CREDIT ................. EXHIBIT D - FRANCHISE FEE QUARTERLY REPORT FORM ............................................ EXHIBIT E - MUNICIPAL BUILDINGS LIST ................... ..................... ...... ........ ...................... 2 AN ORDINANCE GRANTING A FRANCHISE TO VERIZON VIRGINIA INC. TO CONSTRUCT OR OPERATE 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. WHEREAS, this cable franchise (the "Franchise") is entered into by and between the City of Virginia Beach, a duly organized city under the applicable laws of the Commonwealth of Virginia (the "City") and Verizon Virginia Inc., a corporation duly organized under the applicable laws of the Commonwealth of Virginia ("Verizon"); and WHEREAS, V erizon has made application to the City pursuant to Article 1.2 of Chapter 21 of Title 15.2 of the Virginia Code (Virginia Code Sections 15.2-2108.19 et seq.), for a nonexclusive franchise to construct, install, maintain, extend and operate a cable communications system in the Franchise Area as designated in this Franchise; and WHEREAS, the City is a "franchising authority" as defined in 47 U.S.C. ~522(10) and is authorized to grant one or more nonexclusive cable franchises pursuant to Virginia Code Section 15.2-2108.20 and 47 D.S.C. ~541 (a); and WHEREAS, Verizon is in the process of installing a Fiber to the Premises Telecommunications Network ("FTTP Network") in the Franchise Area pursuant to authority granted by the Commonwealth of Virginia and the telephone franchises previously granted by the City; and WHEREAS, the FTTP Network will occupy the Public Rights-of-Way within the City, and Verizon desires to use portions of the FTTP Network once installed to provide Cable Services (as hereinafter defined) in the Franchise Area; and WHEREAS, the City has determined that the grant of a nonexclusive franchise to Verizon is consistent with the public interest; and WHEREAS, the City and Verizon have reached agreement on the terms and conditions set forth herein and the parties have agreed to be bound by those terms and conditions; and. WHEREAS, the City Council finds that it is in the public interest to construct or operate a Cable System within the Franchise Area under the terms of this Franchise; said public purpose being specifically the enhancement of communications for the City; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA HEREBY GRANTS A FRANCHISE TO VERIZON VIRGINIA INC. TO OCCUPY THE PUBLIC RIGHTS OF WAY TO CONSTRUCT OR OPERATE A CABLE SYSTEM PURSUANT TO THE FOLLOWING TERMS AND CONDITIONS: 3 1. 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 Verizon Virginia Inc." Within this document it shall also be referred to as "this Franchise" or "the Franchise." 2. DEFINITIONS Except as otherwise provided herein, the definitions and word usages set forth in the Communications Act (as hereinafter defined) are incorporated herein and shall apply in this Agreement. References in this Article 2 to any federal or state law shall include amendments thereto as may be enacted from time-to-time. In addition, the following definitions shall apply: 2.1. Access Channel: A video Channel, which Verizon shall make available to the City without charge for non-commercial Public, Educational, or Governmental use for the transmission of video programming as directed by the City. 2.2. Affiliate: Shall be defined herein as it is defined under Title 15.2 of the Code of Virginia, Chapter 21, Article 1.2, Section 15.2-2108.19, meaning, when used in relation to any Person, another Person who owns or controls, is owned or controlled by, or is under common ownership or control with, such Person. 2.3. Basic Cable Service or Basic Service Tier: Shall be defined herein as it is defined under Title 15.2 of the Code of Virginia, Chapter 21, Article 1.2, Section 15.2-2108.19, meaning the Service tier that includes (i) the retransmission of local television broadcast channels and (ii) any public, educational, and governmental channels required to be carried in the basic tier. 2.4. Cable Service or Cable Services: Shall be defined herein as it is defined under Title 15.2 of the Code of Virginia, Chapter 21, Article 1.2, Section 15.2-2108.19, meaning the one-way transmission to subscribers of (i) Video Programming or (ii) other programming service, and subscriber interaction, if any, which is required for the selection or use of such Video Programming or other programming service. Cable service does not include any Video Programming provided by a commercial mobile service provider defined in 47 U.S.C. S 332(d). 2.5. Cable System or System: Shall be defined herein as it is defined under Title 15.2 of the Code of Virginia, Chapter 21, Article 1.2, Section 15.2-2108.19, meaning 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 that includes Video Programming and that is provided to multiple Subscribers within the Service Area, except that such term shall not include (i) a system that serves fewer than twenty (20) Subscribers; (ii) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (iii) a facility that serves only Subscribers without using any Public Rights-of-Way; (iv) a facility of a common carrier that is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, 47 U.S.C. ~ 201 et seq., except that such facility shall be considered a Cable System 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; (v) any facilities of any electric utility used solely for operating 4 its electric system; (vi) any portion of a system that serves fewer than fifty (50) Subscribers in any locality, where such portion is a part of a larger system franchised in an adjacent locality; or (vii) an open video system that complies with ~ 653 of Title VI of the Communications Act of 1934, as amended, 47 U.S.C. ~ 573. 2.6. Channel: Shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U.S.C. ~ 573, meaning 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 Federal Communications Commission by regulation. 2.7. City: The City of Virginia Beach, Virginia, a municipal corporation of the Commonwealth of Virginia, its officers, employees, agents and assigns. 2.8. City Council: The governing body of the City of Virginia Beach. 2.9. Complaint: Any correspondence relating to any aspect ofVerizon's Cable Service or cable operations (including letters, e-mail messages, faxes or complaints forwarded by the City of Virginia Beach by any means and identified as Complaints, and telephone calls elevated to management for resolution) sent by a Subscriber to the City or Verizon alleging or asserting signal interruption, poor picture quality, dissatisfaction over programming content, or dissatisfaction over business practices. It shall not include any expression of dissatisfaction with any action of Verizon that is authorized by this Franchise or applicable state or federal law. The term "complaint" shall not include an inquiry which is immediately answered by Verizon to the apparent satisfaction of the complaining party. 2.10. Communications Act: The Communications Act of 1934, as amended. 2.11. Control: The ability to exercise de facto or de jure control over day-to- day policies and operations or the management ofVerizon's affairs. 2.12. Converter: An electronic device which converts signals to a frequency not susceptible to interference within the television receiver of a Subscriber and also permits a Subscriber to view the digital service tiers. 2.13. Drop: The cable that connects the ground block on the Subscriber's residence or institution to the nearest feeder cable of the System. 2.14. Educational Access Channel: An Access Channel available for the use solely of the local public schools in the Franchise Area. 2.15. FCC: The United States Federal Communications Commission or successor governmental entity thereto. 2.16. Force Majeure: Shall be defined herein as it is defined under Title 15.2 of the Code of Virginia, Chapter 21, Article 1.2, Section 15.2-2108.19, meaning an event or events reasonably beyond the ability of Verizon to anticipate and control. "Force majeure" includes, but is not limited to, acts of God, incidences of terrorism, war or riots, labor strikes or civil disturbances, floods, earthquakes, fire, explosions, epidemics, hurricanes, tornadoes, 5 governmental actions and restrictions, work delays caused by waiting for utility providers to service or monitor or provide access to utility poles to which Verizon's facilities are attached or to be attached or conduits in which Verizon's facilities are located or to be located, and unavailability of materials or qualified labor to perform the work necessary. 2.17. Franchise or Cable Franchise: The negotiated franchise granted by this ordinance and the regulatory and contractual relationship established hereby. 2.18. Franchise Area: The entire existing territorial limits of the City and such additional areas as may be included in the territorial limits of the City during the term of this Franchise. 2.19. Government Access Channel: An Access Channel available for the sole use of the City. 2.20. Gross Revenue: Shall be defined herein as it is defined under Title 15.2 of the Code of Virginia, Chapter 21, Article 1.2, Section 15.2-2108.19, meaning all revenue, as determined in accordance with generally accepted accounting principles, that is actually received by Verizon and derived from the operation of the Cable System to provide Cable Services in the Franchise Area; however, "gross revenue" shall not include: (i) refunds or rebates made to Subscribers or other third parties; (ii) any revenue which is received from the sale of merchandise over home shopping channels carried on the Cable System, but not including revenue received from home shopping channels for the use of the Cable Service to sell merchandise; (iii) any tax, fee, or charge collected by Verizon and remitted to a governmental entity or its agent or designee, including without limitation a local public access or education group; (iv) program launch fees; (v) directory or Internet advertising revenue including, but not limited to, yellow page, white page, banner advertisement, and electronic publishing; (vi) a sale of Cable Service for resale or for use as a component part of or for the integration into Cable Services to be resold in the ordinary course of business, when the reseller is required to payor collect franchise fees or similar fees on the resale of the Cable Service; (vii) revenues received by any affiliate or any other Person in exchange for supplying goods or services used by Verizon to provide Cable Service; and (viii) revenue derived from services classified as Non-Cable Services under federal law, including, without limitation, revenue derived from Telecommunications Services and Information Services, and any other revenues attributed by Verizon to Non-Cable Services in accordance with rules, regulations, standards, or orders of the Federal Communications Commission. 2.21. Information Services: Shall be defined herein as it is defined under Section 3 of the Communications Act, 47 U.S.C. ~153(20), meaning the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service. 2.22. Initial Service Area: The portion of the Franchise Area as outlined in Exhibit A. 6 2.23. Installation: The act of connecting the FTTP Network from feeder cable to the point of connection including Standard Installations and custom Installations with the Subscriber Converter or other terminal equipment. 2.24. Internet Access: Dial-up or broadband access servIce that enables Subscribers to access the Internet. 2.25. Non-Cable Service: Any service in the Franchise Area other than Cable Service, including, but not limited to, Information Services and Telecommunications Services. 2.26. Normal Business Hours: Shall be defined herein as it is defined under 47 C.F.R. ~ 76.309(c)(4)(i), meaning those hours during which most similar businesses in the community are open to serve customers. In all cases, "normal business hours" shall include some evening hours at least one night per week and/or some weekend hours. 2.27. Normal Operating Conditions: Shall be defined herein as it is defined under 47 C.F.R. ~ 76.309(c)(4)(ii), meaning those service conditions which are within the control of Verizon. Those conditions which are not within the control of Verizon 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 Verizon 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. 2.28. Parental Controls: A feature and/or function of a Subscriber's digital set top box that inhibits the viewing of certain program(s) or Channel(s) provided by way of the Cable System. 2.29. PEG: Public, educational and governmental. 2.30. Person: An individual, partnership, association, joint stock company, trust, corporation, or governmental entity. 2.31. Public Rights of Way: The surface of and the space above and below and any area across, in, over, along any public street, including the entirety of the area shown as a street on a plat, surveyor similar document, public road, public highway, public freeway, public lane, public path, public way, public alley, public court, public sidewalk, public boulevard, public parkway, public drive, public bridges, public sidewalks, public ways or any public easement or right-of-way now or hereafter held by City, within its proper use and meaning in the sole opinion of City and as the same now or may thereafter exist, which are under the jurisdiction or control of the City, to the extent the City has the authority to allow such use. The term shall not include the airspace above a Public Rights of Way with regard to cellular or other wireless communications or broadcast services. 2.32. Service Area: All portions of the City where Cable Service is being offered, including the Initial Service Area, and portions serviced pursuant to the Year Seven (7) Threshold and the Year Ten (10) Threshold. 7 2.33. Service Interruption: The loss of picture or sound on one or more cable channels. 2.34. Standard Installation: Any residential or commercial Installation which can be completed using a Drop of one hundred fifty (150) feet or less. 2.35. Subscriber: Any Person the City who lawfully receives Cable Service over the Cable System with Verizon's express permission. 2.36. Telecommunications Facilities: Verizon's existing Telecommunications Services and Information Services facilities and its FTTP Network facilities. 2.37. Telecommunications Franchises: The telecommunications franchise between the City and Chesapeake and Potomac Telephone Company of Virginia adopted July 24, 1972, the telecommunications franchise between the City and The Norfolk & Carolina Telephone & Telegraph Co. of Virginia adopted October 13, 1969, and the telecommunications franchise between the City and First Colony Telephone Company adopted May 23, 1969, as such Telecommunications Franchises currently exist and may be amended, renewed, or superseded by other telecommunications franchises in the future. 2.38. Telecommunication Services: Shall be defined herein as it is defined under Section 3 of the Communications Act, 47 U.S.C. ~ 153(46), meaning the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used. 2.39. Title II: Title II of the Communications Act. 2.40. Title VI: Title VI of the Communications Act. 2.41. Transfer of the Franchise: Shall be defined herein as it is defined under Title 15.2 of the Code of Virginia, Chapter 21, Article 1.2, 915.2-2108.19, meaning any transaction in which (i) an ownership or other interest in Verizon is transferred, directly or indirectly, from one Person or group of Persons to another Person or group of Persons, so that majority control ofVerizon is transferred; or (ii) the rights and obligations held by Verizon under the Franchise are transferred or assigned to another Person or group of Persons. However, notwithstanding clauses (i) and (ii) of the preceding sentence, a transfer of the cable franchise shall not include (a) transfer of an ownership or other interest in Verizon to the parent ofVerizon or to another Affiliate of Verizon; (b) transfer of an interest in the cable franchise or the rights held by Verizon under the Franchise to the parent of Verizon or to another Affiliate of Verizon; (c) any action that is the result of a merger of the parent of Verizon; (d) any action that is the result of a merger of another Affiliate of Verizon; or (e) a transfer in trust, by mortgage, or by assignment of any rights, title, or interest of Verizon in the Franchise or the Cable System used to provide Cable Services in order to secure indebtedness. 2.42. Verizon: Verizon Virginia Inc., and its lawful and permitted successors, assigns and transferees. 8 2.43. Video Programming: Shall be defined herein as it is defined under Title 15.2 of the Code of Virginia, Chapter 21, Article 1.2, ~15.2-2108.19, meaning programming provided by, or generally considered comparable to, programming provided by a television broadcast station. 2.44. Year Seven (7) Threshold: The portion of the City in which Verizon agrees to provide Cable Services pursuant to Subsection 4.1.2 of this Franchise. 2.45. Year Ten (10) Threshold: The portion of the City in which Verizon agrees to provide Cable Services pursuant to Subsection 4.1.3 of this Franchise. 3. GRANT OF AUTHORITY; LIMITS AND RESERVATIONS; TERM 3.1. Grant of Franchise: Subject to the terms and conditions of the Communications Act, this Franchise is granted pursuant to the terms and conditions contained herein. 3.2. Criteria of Selection: Verizon'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 Verizon was afforded reasonable notice and a reasonable opportunity to be heard. 3.3. Authorityfor Use of Public Rights of Way: 3.3.1. Authority for use of Public Rights of Way within the Franchise Area by Verizon and Verizon South Inc. with respect to the Telecommunications Facilities exists pursuant to the Telecommunications Franchises. The parties mutually acknowledge and agree that: (i) Section 15.2-2108.24 of the Virginia Code prohibits the imposition in this Franchise of any facility construction or Public Rights of Way management requirements on Verizon; (ii) the Telecommunications Facilities located in the Public Rights of Way used by Verizon to provide Cable Services pursuant to this Franchise are also used by Verizon to provide Telecommunications Services within the City; and (iii) such Telecommunications Facilities are authorized to be located in the Public Rights of Way pursuant to the Telecommunications Franchises and are subject to such facility construction and rights-of-way management requirements as may be set forth therein pursuant to applicable federal and state law. 3.4. Term; Time of Acceptance; Incorporation of Proposal; Exhibits: 3.4.1. This Franchise shall be adopted on 2007 (the "Adoption Date"), and shall be retroactive to December 22, 2006 (the "Effective Date"). The term of this Franchise shall be ten (10) years from the Effective Date unless the Franchise is earlier surrendered or revoked as provided herein. 3.4.2. Verizon 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 Verizon shall be deemed the grant of this 9 Franchise for all purposes. In the event acceptance does not take place, this Franchise shall be null and void. 3.4.3. With Verizon's acceptance of this Franchise, Verizon and City shall be bound by all terms and conditions contained herein. 3.4.4. Within thirty (30) days of this acceptance and subject to the terms and conditions of this Franchise, Verizon shall also deliver any letter of credit and insurance certificates required herein that have not previously been delivered. Verizon shall also provide a chart showing the current ownership structure of the company, including any parent entities. 3.4.5. 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. 3.5. 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 915.2-2108, et seq., and 47 U.S.C. ~541. Any such franchises which are granted shall not expressly alter or purport to alter the authority as granted under this Franchise or expressly grant authority or purport to grant authority to interfere with existing physical facilities, including equipment, of the Cable System or Verizon's FTTP Network. 3.6. No Waiver: 3.6.1. The failure of the City on one or more occasions to exercise a right or to require compliance or performance under this Franchise, the Communications Act or any other applicable State or Federal law shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance by the City, nor to excuse Verizon from complying or performing, unless such right or such compliance or performance has been specifically waived in writing. 3.6.2. The failure ofVerizon on one or more occasions to exercise a right under this Franchise or applicable law, or to require performance under this Franchise, shall not be deemed to constitute a waiver of such right or of performance of this Agreement, nor shall it excuse City from performance, unless such right or performance has been specifically waived in writing. 3.7. Precedence of Documents: The parties acknowledge that, as of the Effective Date of this Franchise, there is no cable ordinance of general applicability within the City. In the event the City should lawfully enact any cable ordinance of general applicability, this Agreement will prevail with respect to any inconsistency between such ordinance and this Agreement. 3.8. Police Powers: Except as otherwise provided in this Franchise, Verizon's rights under this Franchise shall be subject to the lawful police powers of the City to adopt and enforce ordinances of general applicability necessary to protect and preserve the health, safety and welfare of the public. Verizon shall comply with all applicable general laws and ordinances 10 lawfully enacted by City pursuant to such police powers, except where an exercise of such powers, would impair the obligations of this Agreement. 3.9. Use ofVerizon Telecommunications Facilities: To the extent that the City has any authority to use Verizon Telecommunications Facilities, such authority is pursuant to the Telecommunications Franchises and not pursuant to this Agreement. 3.10. Removal or Relocation of Facilities: To the extent that the City has any authority to remove or relocate, or to require the removal or relocation of, Verizon Telecommunications Facilities, such authority is pursuant to the Telecommunications Franchises and not pursuant to this Agreement. 4. PROVISION OF CABLE SERVICE 4.1. Service Area: 4.1.1. Initial Service Area: Verizon shall offer Cable Service to all ofthe occupied residential dwelling units in the Initial Service Area and may make Cable Service available to businesses in the Initial Service Area, within three (3) years of the Adoption Date of this Franchise, except: (A) for periods of Force Majeure; (B) for periods of delay caused by the City; (C) for periods of delay resulting from Verizon's inability to obtain authority to access rights-of-way in the Service Area; (D) in areas where developments or buildings are subject to claimed exclusive arrangements; (E) in developments or buildings that Verizon cannot access under industry standard terms and conditions after good faith negotiation; and (F) in developments or buildings that Verizon is unable to provide Cable Service for technical reasons or that require facilities that are not available or cannot be deployed on a commercially reasonable basis; and (G) in areas where the occupied residential household density does not meet the density requirements set forth in Subsection 4.1.1.1. 4.1.1.1. Density Requirement: Verizon shall make Cable Services available to occupied residential dwelling units in all areas of the Service Area where the average density is equal to or greater than thirty (30) occupied residential dwelling units per mile as measured in strand footage from the nearest technically feasible point on the active FTTP Network trunk or feeder line. Should, through new construction, an area within the Initial Service Area or portions of the Service Area serviced pursuant to the Year Seven (7) Threshold or Year Ten (10) Threshold meet the density requirements after the time stated for providing Cable Service as set forth in Subsections 4.1.1, 4.1.2 and 4.1.3 respectively, Verizon shall provide Cable Service to such area within six (6) months of receiving notice from the City that the density requirements have been met. 4.1.2. Year Seven (7) Threshold: Verizon shall begin providing Cable Service to no less than sixty-five percent (65%) of the occupied residential dwelling units in the Franchise Area within seven (7) years following the Adoption Date, subject to the conditions of Subsection 4.1.1 above and the other terms set forth herein. 11 4.1.3. Year Ten (10) Threshold: During the twelve (12) month period commencing after the seventh-year anniversary date of the Adoption Date, the City may, by ordinance adopted after a public hearing in which the City specifically finds that such a requirement is necessary to promote competition in cable services within the Franchise Area, require Verizon to make Cable Service available to no more eighty percent (80%) of the occupied residential dwelling units in the Franchise Area within no less than ten (10) years of the Adoption Date, subject to the conditions of Subsection 4.1.1 above and the other terms set forth herein. 4.1.4. Except for the Initial Service Area, and any portions of the Service Area serviced pursuant to the Year Seven (7) Threshold and the Year Ten (10) Threshold, Verizon shall have the right but not the obligation to extend its Cable System or to provide Cable Services to any other areas within the Franchise Area during the term of this Franchise or any Renewals thereof. IfVerizon exercises its right to extend its Cable System or provide Cable Services to any other areas within the Franchise Area as set forth in this Subsection 4.1.4, Verizon shall notify City in writing at least thirty (30) days prior to providing Cable Services in such areas. 4.1.5. Certificates of Compliance: Verizon shall file a certificate at its third, seventh, and, if applicable, tenth, anniversary dates certifying its compliance with the Cable Service requirements set forth in Subsections 4.1.1, 4.1.2, and 4.1.3 of this Agreement, respectively. 4.2. Availability of Cable Service: Verizon shall not discriminate between or among any individuals in the availability of Cable Service within the Franchise Area. Verizon shall make Cable Service available via a Standard Installation and in conformance with Section 4.1 to: 4.2.1. any occupied residential dwelling unit within the area within twenty-one (21) days from the date of request; and 4.2.2. at Verizon's option, any commercial entity within the area upon terms and conditions negotiated by the commercial entity and Verizon. 4.3. Non-Standard Installations: Subject to the terms and conditions of this Agreement and in conformance with Section 4.1, Verizon shall install and provide Cable Service to any occupied residential dwelling unit requiring a Drop of more than one hundred fifty (150) feet, provided that Verizon may charge for the incremental increase in material and labor costs incurred beyond the Standard Installation. 4.4. Basic Service: Verizon shall offer to all Subscribers a service level designed to meet the minimum information needs of the residents of the City. Verizon shall offer Basic Cable Service as required by law, including off-air local broadcasting channels and the PEG Access Channels set forth in Article 7 of this Agreement. 4.5. Regulation of Cable Service Rates: The City acknowledges that, at the time of the Effective Date, the City has no authority to regulate the rates for Cable Service over the Cable System because the Cable System is subject to effective competition pursuant to 47 12 U.S.C. ~ 543. Should, in the future, the Federal Communications Commission determine that the Cable System is no longer subject to effective competition pursuant to 47 U.S.C. ~ 543, the City reserves the right to regulate rates for Cable Service to the extent permitted by law. 4.6. Programming Decisions: All programming decisions shall be at the sole discretion ofVerizon and in accordance with applicable federal and state law. 4.7. Service to Public Facilities: 4.7.1. Subject to Section 4.1, Verizon shall provide, free of charge throughout the term of the Franchise and within the Service Area, Installation of one (1) Drop, one (1) cable outlet, and one (1) Converter, if necessary, and the highest level of Cable Service offered by Verizon, excluding pay-per-view, pay-per-channel (premium) programming, high- speed data services, or newly created non-video Cable Services, without charge to each fire station, public school, police station, public library, and any other local government building as may be designated initially by the City in Exhibit E and thereafter during the term of this Agreement as may be designated in writing by the City, so long as such additional designations beyond those set forth in Exhibit E do not exceed 5 buildings used for public purposes and entitled to free service per fiscal year. The City shall be responsible for obtaining authorization for Verizon to enter any leased buildings on commercially reasonable terms. 4.7.2. Ifit is necessary to extend Verizon's trunk or feeder lines more than two hundred (200) feet solely to provide Cable Service to any institutions subsequently designated pursuant to Subsection 4.7.1, the City shall have the option of either paying Verizon's direct costs for such extension in excess of two hundred (200) feet, or releasing Verizon from the obligation to provide Service to such building. 4.7.3. Additional Subscriber Drops and/or outlets in any of the locations identified pursuant to Subsection 4.7.1 above will be installed by Verizon at the lowest actual cost ofVerizon's time and material. Alternatively, said institutions may add outlets at their own expense, as long as such installation meets Verizon's standards and approval, which approval shall not be unreasonably withheld. Once a building meets the criteria for free service under Subsection 4.7.1, Verizon shall have one hundred eighty (180) days to provide service unless an act of Force Majeure necessitates more time. 4.7.4. Cable Service provided pursuant to this Section 4.7 may not be resold or otherwise used in contravention ofVerizon's rights with third parties respecting programming. Equipment provided by Verizon, if any, shall be replaced at retail rates if lost, stolen or damaged. 4.8. Technical Infeasibility: 4.8.1. If at any time during the term of this Franchise, Verizon determines that it is technically infeasible to provide Cable Service pursuant to the terms of this Agreement or that it cannot meet any other requirement(s) ofthe Franchise due to technical infeasibility, Verizon shall, subject to Section 10.7, submit to the City a written report specifically identifying any applicable service addresses and Franchise requirement(s) and the technical reasons for such determination. 13 4.8.2. The City shall have forty-five (45) days from receipt of the report referenced in Subsection 4.8.1 to respond to Verizon in the event the City disagrees (in whole or in part) with the determination of technical infeasibility. In such case, the parties agree to discuss the matter further. If the parties cannot reach agreement, then a resolution of the contested determination shall be in accordance with Article 13 of this Franchise. 5. SYSTEM OPERATION 5.1. The parties recognize that Verizon's FTTP Network is being constructed and will be operated and maintained as an upgrade to and/or extension of its existing Telecommunications Facilities. The authority of the City to regulate such Telecommunications Facilities pursuant to this Franchise or local law is restricted by federal and state law, and the City shall not assert authority under this Franchise to regulate Verizon's FTTP Network except as allowed by law. 6. SYSTEM FACILITIES 6.1. System Characteristics: Verizon's Cable System shall meet or exceed the following requirements: 6.1.1. The System shall be designed with an initial analog and digital carrier passband between 50 and 860 MHz. 6.1.2. The System shall be designed to be an active two-way plant for subscriber interaction, if any, required for selection or use of Cable Service. 6.2. Interconnection: Verizon shall design its Cable System so that it may be interconnected with other cable systems in the Franchise Area. Interconnection of systems may be made by direct cable connection, microwave link, satellite, or other appropriate methods. Upon written request from the City, Verizon shall negotiate in good faith with other franchised cable operator(s) respecting reasonable, mutually convenient, cost-effective, and technically feasible interconnection points, methods, terms and conditions. If Verizon and such other cable operator(s) fail to execute an interconnection agreement within one hundred and eighty (180) days of the City's written request to interconnect, then the City may, by ordinance adopted after a public hearing, require Verizon to interconnect and determine an interconnection point with the objective of designating an interconnection point that is mutually convenient, cost-effective, and technically feasible. Nothing herein shall prohibit Verizon from requiring such other franchised cable operator to pay the costs of such interconnection, including construction, signal transport, and maintenance costs. 6.3. Emergency Alert System: 6.3.1. Verizon shall at all times comply with the Emergency Alert System standards pursuant to applicable federal requirements. 7. PUBLIC. EDUCATIONAL AND GOVERNMENTAL ("PEG") ACCESS CHANNELS 14 7.1. Verizon shall, at no charge to the City, provide three (3) dedicated PEG Access Channels on Verizon's Basic Service Tier to air non-commercial PEG access programming, consistent with Section 611 of the cable Act (47 U.S.C. ~531). Upon one hundred and twenty (120) days written notice from the City, Verizon shall provide up to four (4) additional PEG Access Channels on a digital service tier. The City shall have sole discretion to determine the users of such PEG Access Channels. Notwithstanding anything to the contrary, Verizon shall be permitted to use capacity on the Channels for the provision of other Cable Services if such Channels are not being used for the purposes designated pursuant to rules and procedures developed by the City. Verizon acknowledges that the City currently receives from another franchised cable operator one (1) non-PEG non-commercial training channel that is used for City training purposes on a viewer-restricted basis (the "Training Channel"). So long as the City is actually receiving the Training Channel, the parties agree that, should Verizon at any time provide a service comparable to the Training Channel in any other locality, Verizon will make such service, or a substantially similar service, available to the City at no additional cost to the City. 7.1.1. Verizon shall obtain the PEG Access Channel programming via a dedicated fiber connection to the City's PEG headend in the Advanced Technology Center. 7.1.1.1. Upon notification by PEG Access Channel authorities, Verizon's response time for any dedicated fiber signal discrepancies shall be as follows: 7.1.1.1.1. 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. 7.1.1.1.2. 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. 7.1.1.1.3. All maintenance and repairs of the Cable System performed for purposes of providing the PEG Access Channels will be at no cost to City. 7.2. PEG Capital Fee: Verizon shall provide to the City a monthly PEG Capital Fee in the amount of twenty cents ($0.20) per month per Subscriber in the Service Area (the "PEG Capital Fee"). Verizon shall pay the PEG Capital Fee on the same schedule as the Franchise Fee payment required in Article 8 of this Agreement. 7.3. PEG Capital Grant Surcharge Fee: Because the existing cable operator is providing in-kind equipment to support PEG channel facilities, Verizon shall provide to the City a PEG Capital Grant Surcharge Fee in the amount of two cents ($.02) per month per Subscriber in the Service Area (the "PEG Capital Grant Surcharge Fee"). 7.3 .1. Cooperation Regarding Valuation: Verizon shall cooperate with the City to ascertain the monetary value of any in-kind services and facilities that Verizon may 15 provide pursuant to this Franchise in an effort to establish any PEG capital grant surcharge fee that the City may be authorized to impose on any new cable operator in the City. 7.4. Any and all PEG Capital Fee or PEG Capital Grant Surcharge Fee payments by Verizon to City shall not be deemed "Franchise Fees" within the meaning of Section 622 ofthe Cable Act (47 U.S.C. ~ 542). Verizon may list the PEG capital fee as a line item on Subscriber bills. 7.5. IfVerizon makes changes to Verizon's Cable System that require improvements to PEG Access Channel facilities and equipment, Verizon shall provide any necessary additional headend and distribution facilities or equipment within thirty (30) days so that PEG Access Channel facilities and equipment may be used as intended with respect to the up to seven (7) PEG Access Channels specified in Section 7.1 above, so that live and taped programming can be cablecast efficiently to Subscribers. Verizon shall be solely responsible for the costs associated with any Verizon-desired technology changes to, and maintenance and repair of, the signal transport facilities required by Subsection 7.1.1. 7.6. The City hereby authorizes Verizon to transmit such PEG programming within and without City jurisdictional boundaries. PEG Channel assignments may be changed at the sole discretion of Verizon, including but not limited to changes made as a result of any determination by Verizon to convert the provision of Cable Services to an all-digital format. PEG Channel assignments shall be the same throughout the Franchise Area. IfVerizon decides to change the channel designation for any of the PEG Channels, it must provide thirty (30) days prior written notice to the City. 8. FRANCHISE FEES 8.1. Verizon shall pay a Franchise fee of five percent (5%) of annual Gross Revenue received from the Effective Date. With respect to the payment of Franchise fees, the parties shall comply with all applicable requirements of the provisions of Section 58.1-645 of the Code of Virginia (the "Virginia Communications Sales and Use Tax") in its current form and as it may be amended. Upon payment by Verizon of any Franchise fee pursuant to this Section 8.1, Verizon shall provide to the City a brief report in a form substantially similar to that appearing in Exhibit D hereto and prepared by a representative of Verizon showing the basis for the computation. 8.2. Bundled Services: If Cable Services subject to the Franchise fee required under this Article 8 are provided to Subscribers in conjunction with Non-Cable Services, the Franchise fee shall be applied only to the value of the Cable Services, as reflected on the books and records of Verizon in accordance with FCC or state public utility regulatory commission rules, regulations, standards or orders. 9. CUSTOMER SERVICE Customer Service Requirements are set forth in Exhibit B., which shall be binding unless amended by written consent of the parties. 10. REPORTS AND RECORDS 16 10.1. Open Books and Records: Upon not less than thirty (30) business days written notice to Verizon and no more frequently than once every twenty-four (24) months, the City shall have the right to inspect Verizon's books and records pertaining to Verizon's provision of Cable Service in the Franchise Area at any time during Normal Business Hours and on a nondisruptive basis, as are reasonably necessary to ensure compliance with the terms of this Franchise. Such notice shall specifically reference the section or subsection of the Franchise which is under review, so that Verizon may organize the necessary books and records for appropriate access by the City. Verizon shall not be required to maintain any books and records for Franchise compliance purposes longer than three (3) years. Notwithstanding anything to the contrary set forth herein, Verizon shall not be required to disclose information that it reasonably deems to be proprietary or confidential in nature, or to disclose any of its or an Affiliate's books and records not relating to the provision of Cable Service in the Service Area. The City shall treat any information disclosed by Verizon as confidential and only disclose it to employees, representatives, and agents thereof that have a need to know, or in order to enforce the provisions hereof. Verizon shall not be required to provide Subscriber information in violation of Section 631 of the Communications Act, 47 U.S.C. ~551. 10.2. Audit Provision: Inspections performed pursuant to Section 10.1 of this Agreement may include an audit of all records reasonably necessary to confirm the accurate payment of any amounts payable by Verizon to the City under this Agreement. Verizon shall bear the City's reasonable, documented out-of-pocket expenses of any such audit performed by a qualified, independent in-house or third-party auditor, up to a maximum of forty thousand dollars ($40,000), if such audit discloses an underpayment by Verizon of more than three percent (3%) of any quarterly payment and five thousand dollars ($5,000) or more. The City shall not audit Verizon more frequently than once every twenty-four (24) months. The City shall have no more than three (3) years from the time Verizon delivers a payment to provide a written, detailed objection to or dispute of that payment, and if the City fails to object to or dispute the payment within that time period, the City shall be barred from objecting to or disputing it after that time period. Verizon shall be provided a reasonable opportunity to review the results of any audit and to dispute any audit results which indicate an underpayment to the City. In the event that Verizon disputes any underpayment discovered as the result of an audit conducted by the City, the City shall work together with Verizon in good faith to promptly resolve such dispute. The City and Verizon maintain all rights and remedies available at law regarding any disputed amounts. The City may require Verizon to pay any additional undisputed amounts due to the City as a result of an audit performed by the City pursuant to this Section 10.2 within thirty (30) days following receipt by Verizon of written notice by the City. To the extent permitted by law and unless otherwise agreed to by the parties in writing, 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 the City may have for further or additional sums payable under the provisions of this Franchise. Notwithstanding the foregoing, Verizon shall not be obligated to bear any audit expenses for any auditor utilized by the City (whether in-house or third party) that is compensated on a success based formula, e.g., payment based on a percentage of underpayment, if any. 10.3. Records Required: Verizon shall at all times maintain: 17 10.3.1. Records of all written Complaints for a period of three (3) years after receipt by Verizon. Complaints recorded will not be limited to Complaints requiring an employee service call; 10.3.2. Records of outages for a period of three (3) years after occurrence, indicating date, duration, area, and the number of Subscribers affected, type of outage, and cause; 10.3.3. Records of service calls for repair and maintenance for a period of three (3) years after resolution by Verizon, indicating the date and time service was required, the date of acknowledgment and date and time service was scheduled (if it was scheduled), and the date and time service was provided, and (if different) the date and time the problem was resolved; 10.3.4. Records of installationlreconnection and requests for service extension for a period of three years after the request was fulfilled by Verizon, indicating the date of request, date of acknowledgment, and the date and time service was extended. 10.4. Annual Report: Within ninety (90) days of the end of Verizon's fiscal year, including the fiscal year in which the Franchise becomes effective, Verizon shall file with City an annual report that includes, for the relevant year, the following: 10.4.1. an unaudited financial statement ofVerizon, which will include (i) gross revenues; (ii) a copy ofVerizon Communications Inc.'s (Verizon's parent) 10-K report; and (iii) a statement of Gross Revenues for the previous calendar or fiscal year; 10.4.2. a full schedule ofVerizon's Cable Service rates, fees and charges, including Cable Services begun or discontinued during the relevant year 10.4.3. a current copy of the Subscriber service agreement; 10.4.4. a summary of all recorded Complaints, including a brief description of any unresolved Complaints. 10.5. Provision of Maps to the City: Upon request, Verizon shall provide to the City updated maps of the Franchise Area which shall delineate the areas within the Franchise Area where Cable Service is available to Subscribers. 10.6. Annual Evaluation Sessions: Upon ninety (90) days' written notice, the 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 the Cable System, and Subscriber Complaints. During each evaluation session, Verizon shall fully cooperate with the City to provide without cost such relevant, non-confidential information as the City may reasonably request. 18 10.7. Proprietary and Confidential Iriformation: Notwithstanding anything to the contrary set forth herein, Verizon shall not be required to disclose information that it reasonably deems to be proprietary or confidential in nature, or to disclose any of its or an Affiliate's books and records not relating to the provision of Cable Service in the Service Area. If Verizon believes that any requested information is confidential and proprietary, Verizon must provide the following documentation to the City: (i) specific identification of the information; (ii) a statement attesting to the reason(s) Verizon believes the information is confidential and/or proprietary; and (iii) a statement that the document(s) are available for inspection by the City. Such inspection shall take place at a mutually agreed location. Verizon shall be responsible for clearly and conspicuously stamping the word "Confidential" on each page that contains any confidential and proprietary information. Unless otherwise ordered by a court or agency of competent jurisdiction, the City agrees that, to the extent permitted by applicable law, it shall deny access to any of Verizon's information marked "Confidential" as set forth in this Section 10.7 to any Person. If, in the course of enforcing this Agreement or for any other reason, the City believes it must disclose any information marked "Confidential" as set forth in this Section 10.7, the City shall provide reasonable advance notice of such disclosure so that Verizon can take appropriate steps to protect its interests. If the City receives a demand from any Person for disclosure of any information identified as "Confidential" pursuant to this Section 10.7, the City shall, so far as consistent with applicable law and within a reasonable time, advise Verizon and provide Verizon with a copy of any written request prior to granting the Person access to such information. Verizon shall not be required to provide Subscriber information in violation of Section 631 of the Communications Act, 47 U.S.C. ~551. 11. INDEMNIFICATION AND INSURANCE 11.1. Indemnification: 11.1.1. Verizon agrees to indemnify, save and hold harmless, and defend the City, its officers, agents, boards and employees, from and against any liability for damages or claims resulting from tangible property damage or bodily injury (including accidental death), to the extent proximately caused by Verizon's negligent construction, operation, or maintenance of its Cable System, provided that the City shall give Verizon written notice of its obligation to indemnify the City within ten (10) days of receipt of a claim or action pursuant to this Subsection 11.1.1. Verizon also agrees to indemnify, save and hold harmless, and defend the City, its officers, agents, boards and employees, from and against any liability for damages arising out of copyright infringements or a failure by Verizon to secure consents from the owners or authorized distributors of programs to be delivered by the Cable System. These damages shall include but not be limited to penalties arising out of copyright infringements and damages arising out of any failure by Verizon to secure consents from the owners, authorized distributors or licensees of programs to be delivered by Verizon's Cable System, whether or not any act or omission complained of is authorized, allowed or prohibited by the Agreement. Notwithstanding the foregoing, Verizon shall not indemnify the City, for any damages, liability or claims resulting from the willful misconduct or negligence of the City, its officers, agents, employees, attorneys, consultants, independent contractors or third parties or for any activity or function conducted by any Person other than Verizon, its officers, agents, employees, attorneys, consultants, or contractors in connection with PEG Access or EAS, or the distribution of any Cable Service over the Cable System. 19 11.1.2. With respect to Verizon' s indemnity obligations set forth in Subsection 11.1.1, Verizon shall defend any claims brought against the City by selecting counsel ofVerizon's choice to defend the claim, subject to the consent ofthe City, which shall not unreasonably be withheld. Nothing herein shall be deemed to prevent the City from cooperating with Verizon and its selected counselor from participating in the defense of any litigation by appearance of its own counsel at its own cost and expense, provided however, that after consultation with the City, Verizon shall have the right to defend, settle or compromise any claim or action that Verizon has agreed to defend or indemnify, and Verizon shall have the authority to decide the appropriateness and the amount of any such settlement. In the event that the terms of any such proposed settlement includes the release of the City and/or seek to impose any obligation upon the City to act or refrain from acting and the City does not consent to the terms of any such settlement or compromise, Verizon shall not settle the claim or action but its obligation to indemnify the City shall in no event exceed the amount of such settlement. 11.1.3. The City shall be responsible for its own acts of willful misconduct or negligence, or breach of obligation committed by the City for which the City is legally responsible, subject to any and all defenses and limitations of liability provided by law. Verizon shall not be required to indemnify the City for acts of the City which constitute willful misconduct or negligence on the part of the City, its officers, employees, agents, attorneys, consultants, independent contractors or third parties. 11.2. Insurance 11.2.1. Verizon shall maintain throughout the term of the Franchise, commercial general liability insurance insuring Verizon. All liability insurance shall name as additional insureds the City and the City's officials, employees and agents, with respect to all claims arising out of the operation and maintenance of the Cable System under the Franchise. Liability insurance mentioned herein below shall be in the minimum amounts of: $5,000,000.00 for bodily injury or death to anyone person, within the limit of ten million dollars ($10,000,000) for bodily injury or death resulting from anyone accident; $5,000,000.00 for property damage, including damage to the City's property, from anyone accident; $5,000,000.00 for all other types of liability resulting from anyone occurrence; Workers Compensation Insurance as required by the Commonwealth of Virginia; 11.2.2. Verizon shall carry and maintain in its own name automobile liability insurance with a limit of $5,000,000 for each person and $5,000,000 for each accident for property damage with respect to owned and non-owned automobiles for the operation of which Verizon is responsible. 20 11.2.3. The insurer waives any right to contribution against insurance which may be available to the City. 11.2.4. All policies of insurance required by this Section 11.2 shall be placed with companies which are qualified to write insurance in the Commonwealth of Virginia and which maintain throughout the policy term a General Rating of "A-" and a Financial Size Category of "A:VII" as determined by Best Insurance Rating Services. 11.2.5. Verizon shall deliver to the City Certificates oflnsurance showing evidence of the coverage required by this Section 11.2, which Certificates of Insurance shall be maintained by the City during the Term ofthe Franchise. 11.2.6. Neither the provisions of this Section 11.2, nor any damages recovered by the City thereunder, shall be construed to limit the liability of Verizon under this Franchise or for damages. 11.2.7. The insurance policies required by this Section 11.2 shall be primary to any insurance or self-insurance carried by the City. The insurance policies required by this Section 11.2 shall be carried and maintained by Verizon throughout the term of this Franchise and such other period of time during which Verizon operates its Cable System in the Franchise Area. Each policy shall contain a provision providing that the insurance policy may not be canceled by the surety nor the intention not to renew be stated by the surety until thirty (30) days after receipt by the City, by mail, of written notice of such intention to cancel or not to renew. 11.3 Nothing in this Article 11 shall require Verizon to indemnify, hold harmless or defend the City, its officials, employees or agents, from any claims or lawsuits arising out of the City's award of a franchise to another cable operator. 12. TRANSFER OF FRANCHISE 12.1. Subject to Section 617 of the Communications Act, 47 U.S.C. ~ 537, no Transfer of the Franchise shall occur without the prior consent of the City, provided that such consent shall not be unreasonably withheld, delayed or conditioned. No such consent shall be required, however, for transactions excluded under Section 2.42 above. 12.2. Assignment to Verizon South Inc.: Notwithstanding anything to the contrary herein, the City expressly acknowledges and agrees that Verizon is permitted to assign the right to provide Cable Service in the Franchise Area to Verizon South Inc., an Affiliate of Verizon, without obtaining any prior approval from the City. Verizon will notify the City if at any time an assignment covered by this Section 12.2 occurs. Such assignment shall not release Verizon from any of the terms and conditions imposed in this Agreement and Verizon shall remain solely liable to the City for the performance of those terms and conditions, 21 13. ENFORCEMENT AND TERMINATION OF FRANCHISE 13.1. Notice of Violation: If at any time the City believes that Verizon has not complied with the terms of the Franchise, the City shall informally discuss the matter with Verizon. If these discussions do not lead to resolution of the problem in a reasonable time, the City shall then notify Verizon in writing of the exact nature of the alleged noncompliance in a reasonable time (for purposes of this Article 13, the "Noncompliance Notice"). 13.2. Verizon's Right to Cure or Respond: Verizon shall have fifteen (15) days from receipt of the Noncompliance Notice to: (i) respond to the City, if Verizon contests (in whole or in part) the assertion of noncompliance; (ii) cure such noncompliance; or (iii) in the event that, by its nature, such noncompliance cannot be cured within such fifteen (15) day period, initiate reasonable steps to remedy such noncompliance and notify the City of the steps being taken and the date by which cure is projected to be completed. Upon cure of any noncompliance, City shall provide written confirmation that such cure has been effected. 13.3. Public Hearing: The City shall schedule a public hearing ifthe City seeks to continue its investigation into the alleged noncompliance in the event that: (1) Verizon fails to respond to the Noncompliance Notice pursuant to the procedures required by this Article 13, or (2) in the event that Verizon has not remedied the alleged noncompliance within thirty (30) days of the date projected pursuant to Section 13.2 above. Such public hearing may, at the sole option of the City, be before the City Councilor such other officer or officers of the City as the City Council may appoint for such purpose. The City shall provide Verizon at least thirty (30) business days prior written notice of such public heating, which will specify the time, place and purpose of such public hearing, and provide Verizon the opportunity to be heard. 13.4. Enforcement: Subject to applicable federal and state law, in the event the City, after the public hearing set forth in Section 13.3, determines that Verizon is in default of any provision of this Franchise, the City may: 13.4.1. Liquidated Damages: Enforce the following liquidated damages for the following violations of this Agreement. Verizon hereby acknowledges that such violations result in injury to the City and that it is impracticable to determine the actual amount of such damage in the event of delay or nonperformance: 13.4.1.1. For failure to materially comply with reporting requirements as set forth in Article 10 of this Franchise, the liquidated damage shall be Two Hundred Dollars ($200.00) per day; 13.4.1.2. For failure to materially comply with the carriage of PEG Access Channels requirements as set forth in Article 7 of this Franchise, the liquidated damage shall be Three Hundred ($300.00) per day for each day, or part thereof, such breach occurs or continues; 22 13.4.1.3. For failure to maintain a local payment capability pursuant tu Exhibit B Sectiou I.E of this F rancrnse, the liquidated damage shall be One Hundred Fifty Dollars ($150.00) per day for each day, or part thereof, such breach occurs or continues. 13 .4.1.4. A separate violation ofthe customer service standards of this Franchise shall be deemed to occur whenever the City reasonably determines that a separate customer service violation has occurred on one day; provided, however, that Verizon shall not be charged with multiple violations for a single act or event affecting one or more subscribers on the same day. 13.4.1.5. Payment by Verizon of any ofthe foregoing liquidated damages assessments shall be due thirty (30) days after the date of the public hearing referenced in Section 13.3. If Verizon does not make payment within that period, the City may withdraw from Verizon's Letter of Credit the amount assessed. 13.4.1.6. The amount of all liquidated damages per annum shall not exceed Seventy Five Thousand Dollars ($75,000) in the aggregate. 13.4.2. In the case of a substantial material default of a material provision of the Franchise, the City may seek to revoke the Franchise in accordance with Section 13.5. 13.5. Revocation: Should the City seek to revoke this Franchise after following the procedures set forth in this Article 13, including the public hearing described in Section 13.3. the City shall give written notice to Verizon of such intent. The notice shall set forth the specific nature of the noncompliance. Verizon shall have ninety (90) days from receipt of such notice to object in writing and to state its reasons for such objection. In the event the City has not received a satisfactory response from Verizon, it may then seek termination of the Franchise at a second public hearing. Such public hearing may, at the sole option of the City, be before the City Councilor such other officer or officers of the City as the City Council may appoint for such purpose. The City shall cause to be served upon Verizon at the address specified in Subsection 14.11.1 of this Franchise, at least thirty (30) business days prior to such public hearing, a written notice specifying the time and place of such hearing and stating its intent to revoke the Franchise 13.5.1. At the designated hearing, Verizon and the City shall be provided a fair opportunity for full participation, including the right to be represented by legal counsel, to introduce relevant evidence, to require the production of evidence, to compel the relevant testimony of the officials, agents, employees or consultants ofthe City, to compel the testimony of other Persons as permitted by law, and to question and/or cross examine witnesses. A complete verbatim record and transcript shall be made of such hearing 13.5.2. Following the public hearing, Verizon shall be provided up to thirty (30) days to submit its proposed findings and conclusions in writing and thereafter the City shall determine (i) whether an event of default has occurred; (ii) whether such event of default is excusable; and (iii) whether such event of default has been cured or will be cured by Verizon. The City shall also determine whether to revoke the Franchise based on the information presented, or, where applicable, grant additional time to Verizon to affect any cure. If the City determines that the Franchise should be revoked, the City shall promptly provide Verizon with a 23 written decision setting forth its reasoning. Verizon may appeal such determination of the City to an appropriate court, in which event the City may assert any counterclaims arising from the subject matter of the proceedings in accordance with applicable law. The parties shall be entitled to such relief as the court finds appropriate. Such appeal must be taken within sixty (60) days of V erizon' s receipt of the determination of the franchising authority. 13.5.3. The City may, at its sole discretion, take any lawful action which it deems appropriate to enforce the City's rights under the Franchise in lieu of revocation of the Franchise. 13.6. Letter of Credit: 13.6.1. Verizon shall maintain throughout the term ofthis Agreement an irrevocable letter of credit ("Letter of Credit"), in the principal amount of Fifty Thousand Dollars, ($50,000) issued by a federally insured lending institution licensed to do business in Virginia CLending Institution"). A copy of the existing Letter of Credit is attached hereto as Exhibit C; copies of any relevant replacement or re-issued Letter(s) of Credit will be provided to the City by Verizon subsequent to issuance by the Lending Institution. The Letter of Credit shall serve as security for the substantial performance by Verizon of all terms and conditions of this Agreement. 13.6.2. If the City notifies Verizon of any amounts due to the City pursuant to this Agreement under applicable law, and Verizon does not make such payment within thirty (30) days, the City may draw upon the Letter of Credit by presentation of a draft at sight drawn on the Lending Institution, accompanied by a written certificate signed by the City Manager certifying that Verizon has failed to comply with this Agreement and stating the specific reason therefore and the basis for the amount being withdrawn. Verizon 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. 13.6.3. In the event the Lending Institution serves notice to the City that it elects not to renew the Letter of Credit, the City may withdraw the entire amount of the Letter of Credit unless Verizon provides a substitute Letter of Credit, in substantially the same form as that attached hereto as Exhibit C, from a Lending Institution, before the effective Letter of Credit expires. 13.6.4. No later than thirty (30) days after mailing of notification to Verizon by certified mail, return receipt requested of a withdrawal under the Letter of Credit, Verizon shall restore the amount of the Letter of Credit to the total amount specified herein. 13.6.5. No recovery by the City of any sum by reason of the Letter of Credit required in Section 13.6 of this Agreement shall be any limitation upon the liability of Verizon to the City under the terms of this Agreement, except that any sums so received by the City shall be deducted from any other recovery obtained by the City against Verizon for the same violation or violations of this Agreement. 24 14. MISCELLANEOUS PROVISIONS 14.1. Compliance with Laws: Verizon and the City shall comply with all applicable state and federal laws and rules regarding cable television as they become effective. Except as otherwise provided by law or by Section 3.8 of this Agreement, Verizon shall also comply with all applicable City ordinances, resolutions, rules and regulations of general applicability heretofore or hereafter adopted or established during the entire term of the Franchise. Notwithstanding the foregoing or any other item in this Agreement to the contrary, the parties acknowledge that, as of the Effective Date of this Agreement, there is no cable ordinance of general applicability within the City. In the event the City lawfully enacts any cable ordinance of general applicability, this Agreement will prevail with respect to any inconsistency between such ordinance and this Agreement. 14.2. Franchise Renewal: Any renewal of this Franchise shall be performed in accordance with applicable federal, state and local laws and regulations. 14.3. Conflict Between Federal and State Laws and this Agreement: 14.3.1. If any federal or state law or regulation requires Verizon to perform any service or act, or prohibits Verizon from performing any service or act, whicb may be in conflict with the terms of this Franchise, then as soon as possible following either party's actual knowledge thereof, each party shall use good faith efforts to notify the other party of the point of conflict believed to exist between such law or regulation. 14.3.2. If any federal or state law or regulation permits Verizon to perform any service or act, or permits Verizon to cease the performance of any service or act, which may result in the failure of Verizon to substantially perform any of its obligations under this Franchise, then, upon any determination by Verizon to exercise such permission, Verizon shall, within a reasonable time, notify the City of its determination and the law or regulation pursuant to which the determination was made. 14.4. Rights Cumulative: All rights and remedies given to the City and Verizon 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 the City and Verizon 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 the City and Verizon, 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. 14.5. Incorporation of Attachments: The attachments to this Franchise consisting of Exhibits A through E, as specifically incorporated herein and made a part hereof. 14.6. 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 any 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 25 omitted from the computation. Unless otherwise specifically stated, the calculation of days shall be based upon calendar and not business days. 14.7. Confidentiality: To the fullest extent allowed by law, the City shall keep confidential any information identified as confidential by Verizon, and provided to City by Verizon pursuant to this Franchise. 14.8. Force Majeure: In the event Verizon unavoidably fails to comply with any deadline or schedule contained herein, or unavoidably fails to perform any of the (erms and conditions contained herein, without any fault or negligence of Verizon, by reason of Force Majeure, Verizon shall not be deemed in breach of this Franchise and shall be entitled to an appropriate extension of applicable deadlines or schedules. Verizon shall not be held in default under, or in noncompliance with, the provision of this Agreement, nor suffer any enforcement or penalty relating to noncompliance or default, where such noncompliance or alleged defaults occurred as a result of or were caused by an act of Force Majeure. 14.9. Binding Acceptance: This Agreement shall bind and benefit the parties hereto and their respective heirs, beneficiaries, administrators, executors, receivers, trustees, successors and assigns, and the promises and obligations herein shall survive the expiration date hereof. 14.10. Preemption: In the event that federal or state law, rules, or regulations preempt a provision or limit the enforceability of a provision of this Agreement, the provision shall be read to be preempted to the extent, and for the time, but only to the extent and for the time, required by law. In the event such federal or state law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed so that the provision hereof that had been preempted is no longer preempted, such provision shall thereupon return to full force and effect, and shall thereafter be binding on the parties hereto, without the requirement of further action on the part of the City. 14.11. Notices: Unless otherwise expressly stated herein, notices required under the Franchise shall be mailed first class, postage prepaid, or, at the option of the sending party, by overnight delivery service, to the addressees below. Each party may change its designee by providing written notice to the other party. 14.11.1. Notices to Verizon shall be mailed to: Robert W. Woltz, Jr. President, Verizon Virginia Inc. 600 E. Main Street Suite 1100 Richmond, VA 23219 with a copy to: Jack White Senior Vice President & General Counsel - 26 Verizon Telecom One Verizon Way Room VC43EOI0 Basking Ridge, NJ 07920-1097 14.11.2. Notices to the City shall be mailed to: City Manager City of Virginia Beach Building 1, Room 234 2401 Courthouse Drive Virginia Beach, Virginia 23456 with a copy to: City Attorney City of Virginia Beach Building 1, Room 260 2401 Courthouse Drive Virginia Beach, Virginia 23456 14.12. Entire Agreement: This Franchise and the Exhibits hereto constitute the entire agreement between Verizon and the City with respect to the provision of Cable Services in the Service Area by Verizon, and supersede all prior or contemporaneous agreements, representations or understanding (whether written or oral) of the parties regarding the subject matter hereof. 14.13. Amendments: Amendments to this Franchise shall be mutually agreed to in writing by the parties. 14.14. Severability: If any section, subsection, sentence, paragraph, term, or provISIon hereof is determined to be illegal, invalid, or unconstitutional, by any court uf competent jurisdiction or by any state or federal regulatory authority having jurisdiction thereof, such determination shall have no effect on the validity of any other section, subsection, sentence, paragraph, term or provision hereof, all of which will remain in full force and effect for the term of the Franchise. 14.15. Recitals: The recitals set forth in this Agreement are incorporated into the body of this Agreement as if they had been originally set forth herein. 14.16. Communications with Regulatory Agencies: Upon request, Verizon shall provide the City with a copy of any document (redacted and confidential information excluded) filed by Verizon with any regulatory agency or other legislative body (other than publicly available agency mailings or publications) that materially and expressly pertains to the provision of Cable Services within the City. The results of any tests of the Cable System required to be 27 tiled by Verizon with the FCC shall, upon request of the City, also be tiled with the City or its designee within ten (10) days of such request. 14.17. FTTP Network Transfer Prohibition: Verizon or its assignees shall not be required to seU any right, title, interest, use or control of any portion of Verizon' s FTTP N e\Work including, without limitation, the Cable System and any capacity used for Cable Service or otherwise, to the City or any third party, and shall not be required to remove the FTTP Network or to relocate the FTTP Network or any portion thereof, as a result of revocation, expiration, termination, denial of renewal or any other action to forbid or disallow Verizon from providing Cable Services. This provision is not intended to contravene leased access requirements under Title VI or PEG requirements set out in this Agreement. 14.18. Actions of Parties: With respect to any action by the City or Verizon that is mandated or permitted under the terms hereof, such party shall act in a reasonable, expeditious, and timely manner. Furthermore, in any instance where approval or consent is required under the terms hereof, such approval or consent shall not be unreasonably withheld, delayed or conditioned. 14.19. Captions: The captions and headings of articles and sections throughout this Agreement are intended solely to facilitate reading and reference to such articles and sections. Such captions shall not affect the meaning or interpretation of this Agreement. 14.20. Limitations on Indemn~fication of Verizon by City: Any right by Verizon to seek indemnification from the City shall be subject to applicable federal and state law. SIGNATURE PAGE FOLLOWS 28 AGREED TO THIS DA Y OF CITY OF VIRGINIA BEACH By: Its Mayor VERIZON VIRGINIA INC. By: Robert W. Woltz, Jr. Verizon Virginia Inc., President Approved as to Content: ~ ~t t ;lv '-../. -', '" (7Cv\, _ unt.j\,. . Department of CommUnICatIOns and Information Technology EXHIBITS Exhibit A: Initial Service Area Exhibit B: Customer Service Standards Exhibit C: Irrevocable Letter of Credit Exhibit D: Franchise Fee Quarterly Report Form Exhibit E: Municipal Buildings List ,2007. Approved as to Legal Sufficiency: j iL, <: · ./ . ,-,,,1""( )!~!V- Office of City Attorney 29 EXHIBIT A INITIAL SERVICE AREA V--.. .....tzIp City of Virginia Beach LFA Initial SeNice Area ~//// ,".//.'--.1 '. . iI I. __---.-I , , _r '-. ..."~~ ." \ ,r.~~~@""" c.f( a.1IelieOl " ~ .t.~ /~(u/1._\ /r---..,,/ , i .-.~. i I-Id:ui"' t ..r ~iv~,p- "\, 7 5 Mile. N A 30 EXHIBIT B CUSTOMER SERVICE STANDARDS These standards shall apply to Verizon to the extent it is providing Cable Services over the Cable System in the Franchise area. SECTION 1. DEFINITIONS The following definitions apply to this Exhibit B: A. Respond: Verizon's investigation of a Service Interruption by receIvmg a Subscriber call and opening a trouble ticket, if required. B. Service Call: The action taken by Verizon to correct a Service Interruption the effect of which is limited to an individual Subscriber. C. Significant Outage: A significant outage of the Cable Service shall mean any Service Interruption lasting at least four (4) continuous hours that affects at least ten percent (10%) of the Subscribers in the Service Area. D. Standard Installation: Installations where the subscriber is within one hundred fifty (150) feet of trunk or feeder lines. SECTION 2. TELEPHONE AVAILABILITY A. Verizon shall maintain a toll-free number to receive all calls and inquiries from Subscribers in the Franchise Area and/or residents regarding Cable Service. Verizon representatives trained and qualified to answer questions related to Cable Service in the Service Area must be available to receive reports of Service Interruptions twenty-four (24) hours a day, seven (7) days a week, and other inquiries at least forty-five (45) hours per week. Verizon representatives shall identify themselves by name when answering this number. B. Verizon's telephone numbers shall be listed, with appropriate description (e.g. administration, customer service, billing, repair, etc.), in the directory published by the local telephone company or companies serving the Service Area, beginning with the next publication cycle after acceptance of this Franchise by Verizon. c. Verizon may use an Automated Response Unit ("ARU") or a Voice Response Unit ("VRU") to distribute calls. If a foreign language routing option is provided, and the Subscriber does not enter an option, the menu will default to the first tier menu of English options. 31 After the first tier menu (not including a foreign language rollout) has run through three times, if customers do not select any option, the ARU or VRU will forward the call to a queue for a live representative. Verizon may reasonably substitute this requirement with another method of handling calls from customers who do not have touch-tone telephones. D. Under Normal Operating Conditions, calls received by Verizon shall be answered within thirty (30) seconds. Verizon shall meet this standard for ninety percent (90%) of the calls it receives at all call centers receiving calls from Subscribers, as measured on a cumulative quarterly calendar basis. Measurement of this standard shall include all calls received by Verizon at all call centers receiving calls from Subscribers, whether they are answered by a live representative, by an automated attendant, or abandoned after 30 seconds of call waiting. E. Under Normal Operating Conditions, callers to Verizon shall receIve a busy signal no more than three (3%) percent of the time during any calendar quarter. F. Beginning six (6) months after the Adoption Date, Verizon shall provide the City with a quarterly report, in no event more than once a quarter and within thirty (30) days following the end of each calendar quarter, noting the following for all call centers receiving calls from Subscribers except for temporary telephone numbers set up for national promotions: (1) Subsection 2.D. Percentage of calls answered .within thirty (30) seconds as set forth in (2) Percentage of time customers received busy signal when calling Verizon service center as set forth in Subsection 2.E. Subject to consumer privacy requirements, underlying activity will be made available to the City for review upon reasonable request. G. At Verizon's option, the measurements and reporting above may be changed from calendar quarters to billing or accounting quarters. Verizon shall notify the City of such a change at least thirty (30) days in advance of any implementation. SECTION 3. INST ALLA TIONS AND SERVICE APPOINTMENTS A. All installations will be in accordance with FCC rules, including but not limited to, appropriate grounding, connection of equipment to ensure reception of Cable Service, and the provision of required consumer information and literature to adequately inform the Subscriber in the utilization of Verizon-supplied equipment and Cable Service. B. The Standard Installation shall be performed within seven (7) business days after the placement of the Optical Network Terminal ("ONT") on the customer's premises or within seven (7) business days after an order is placed if the ONT is already installed on the customer's premises. Verizon shall meet this standard for ninety-five percent (95%) of the Standard Installations it performs, as measured on a calendar quarter basis, excluding customer requests for connection later than seven (7) days after ONT placement or later than seven (7) days after an order is placed if the ONT is already installed on the customer's premises. The ONT shall be 32 installed within seven (7) business days after an order is placed excluding customer requests for installation later than seven (7) days after an order is placed. C. Beginning six (6) months after the Adoption Date, Verizon shall provide the City with a quarterly report, in no event more than once a quarter and within thirty (30) days following the end of each calendar quarter, noting the percentage of Standard Installations completed within the seven (7) day period, excluding those requested outside of the seven (7) day period by the Subscriber. Subject to consumer privacy requirements, underlying activity will be made available to the City for review upon reasonable request. At Verizon's option, the measurements and reporting of above may be changed from calendar quarters to billing or accounting quarters. Verizon shall notify the City of such a change not less than thirty (30) days in advance. D. Verizon will offer Subscribers "appointment window" alternatives for arrival to perform installations, Service Calls and other activities of a maximum four (4) hours scheduled time block during appropriate daylight available hours, usually beginning at 8:00 AM unless it is deemed appropriate to begin earlier by location exception. At Verizon's discretion, Verizon may offer Subscribers appointment arrival times other than these four (4) hour time blocks, if agreeable to the Subscriber. These hour restrictions do not apply to weekends. (1) Verizon may not cancel an appointment with a customer after the close of business on the business day prior to the scheduled appointment (2) If Verizon'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 (3) The foregoing subsections (1) and (2) do not apply where Verizon reasonably deems the circumstances unsafe for its technicians or employees, including but not limited to an event of national importance, fire, explosion or other catastrophe, or severe weather conditions such as hurricane, tornado, blizzard, severe ice damage, or major flood. E. Parental Controls: Verizon will offer customers a set top box to enable Parental Controls. Subscribers will be able to create a personal identification number ("PIN") to prevent selected content from being viewed. SECTION 4. SERVICE INTERRUPTIONS AND OUT AGES A. Verizon shall notify the City of any Significant Outage of the Cable Service. B. Verizon shall exercise commercially reasonable efforts to limit any Significant Outage for the purpose of maintaining, repairing, or constructing the Cable System. Except in an emergency or other situation necessitating a more expedited or alternative notification procedure, Verizon may schedule a Significant Outage for a period of more than four (4) hours during any twenty-four (24) hour period only after the City and each affected Subscriber in the Service Area have been given fifteen (15) days prior notice of the proposed Significant Outage. 33 Notwithstanding the forgoing, Verizon may perform modifications, repairs and upgrades to the System between 12.01 a.m. and 6 a.m. which may interrupt service, and this Section's notice obligations respecting such possible interruptions will be satisfied by notice provided to Subscribers upon installation and in the annual subscriber notice. c. Verizon representatives who are capable of responding to Service Interruptions must be available to Respond twenty-four (24) hours a day, seven (7) days a week. D. Under Normal Operating Conditions, Verizon must Respond to a call from a Subscriber regarding a Service Interruption or other service problems within the following time frames: (1) Within twenty-four (24) hours, including weekends, of receIvmg subscriber calls respecting Service Interruptions in the Service Area. (2) Verizon must begin actions to correct all other Cable Service problems the next business day after notification by the Subscriber or the City of a Cable Service problem. E. Under Normal Operating Conditions, Verizon shall complete Service Calls within seventy-two (72) hours of the time Verizon commences to Respond to the Service Interruption, not including weekends and situations where the Subscriber is not reasonably available for a Service Call to correct the Service Interruption within the seventy-two (72) hour period. F. Verizon shall meet the standard in Subsection E. of this Section for ninety percent (90%) of the Service Calls it completes, as measured on a quarterly basis. G. Beginning six (6) months from the Adoption Date, Verizon shall provide the City with a quarterly report, in no event more than once a quarter and within thirty (30) days following the end of each calendar quarter, noting the percentage of Service Calls completed within the seventy-two (72) hour period not including Service Calls where the Subscriber was reasonably unavailable for a Service Call within the seventy-two (72) hour period as set forth in this Section. Subject to consumer privacy requirements, underlying activity will be made available to the City for review upon reasonable request. At Verizon's option, the above measurements and reporting may be changed from calendar quarters to billing or accounting quarters. Verizon shall notify the City of such a change at least thirty (30) days in advance. H. Under Normal Operating Conditions, Verizon shall provide a credit upon Subscriber request when all Channels received by that Subscriber are out of service for a period of four (4) consecutive hours or more. The credit shall equal, at a minimum, a proportionate amount of the affected Subscriber(s) current monthly bill. In order to qualify for the credit, the Subscriber must promptly report the problem and allow Verizon to verify the problem if requested by Verizon. If Subscriber availability is required for repair, a credit will not be provided for such time, if any, that the Subscriber is not reasonably available. 1. Under Normal Operating Conditions, if a Significant Outage affects all Video Programming Cable Services for more than twenty-four (24) consecutive hours, Verizon shall 34 issue an automatic credit to the affected Subscribers in the amount equal to their monthly recurring charges for the proportionate time the Cable Service was out, or a credit to the affected subscribers in the amount equal to the charge for the basic plus enhanced basic level of service for the proportionate time the Cable Service was out, whichever is technically feasible or, ifboth are technically feasible, as determined by Verizon provided such determination is non- discriminatory. Such credit shall be reflected on Subscriber billing statements within the next available billing cycle following the outage SECTION 5. CUSTOMER COMPLAINTS Under Normal Operating Conditions, Verizon shall investigate Subscriber Complaints referred by the City within five (5) business days. Verizon shall notify the City of those matters that necessitate an excess of five (5) business days to resolve, but those matters must be resolved within fifteen (15) days of the initial Complaint. The City may require reasonable documentation to be provided by Verizon to substantiate the request for additional time to resolve the problem. For purposes of this Section, "resolve" means that Verizon shall perform those actions, which, in the normal course of business, are necessary to investigate the Customer's Complaint and advise the Customer of the results of that investigation. SECTION 6. BILLING A. Subscriber bills must be itemized to describe Cable Services purchased by Subscribers and related equipment charges. Bills shall clearly delineate activity during the billing period, including optional charges, rebates, credits, and aggregate late charges. Verizon shall, without limitation as to additional line items, be allowed to itemize as separate line items, Franchise fees, taxes and/or other governmentally imposed fees. Verizon shall maintain records of the date and place of mailing of bills. B. Every Subscriber with a current account balance sending payment directly to Verizon shall be given at least twenty (20) days from the date statements are mailed to the Subscriber until the payment due date. C. A specific due date shall be listed on the bill of every Subscriber whose account is current. Delinquent accounts may receive a bill which lists the due date as upon receipt; however, the current portion of that bill shall not be considered past due except in accordance with Subsection 6.B. above. D. Any Subscriber who, in good faith, disputes all or part of any bill shall have the option of withholding the disputed amount without disconnect or late fee being assessed until the dispute is resolved provided that: (1) The Subscriber pays all undisputed charges; (2) The Subscriber provides notification of the dispute to Verizon within five (5) days prior to the due date; and 35 (3) The Subscriber cooperates III determining the accuracy and/or appropriateness of the charges in dispute. (4) has been resolved. It shall be within Verizon's sole discretion to determine when the dispute E. Under Normal Operating Conditions, Verizon shall initiate investigation and resolution of all billing Complaints received from Subscribers within five (5) business days of receipt of the Complaint. Final resolution shall not be unreasonably delayed. F. Verizon shall provide a telephone number and address on the bill for Subscribers to contact Verizon. G. Verizon shall forward a copy of any Cable Service related billing inserts or other mailing sent to Subscribers to the City upon request. H. Verizon shall provide all Subscribers with the option of paying for Cable Service by check or an automatic payment option where the amount of the bill is automatically deducted from a checking account designated by the Subscriber. Verizon may in the future, at its' discretion, permit payment by using a major credit card on a preauthorized basis. Based on credit history, at the option ofVerizon, the payment alternative may be limited~ SECTION 7. DEPOSITS. REFUNDS AND CREDITS A. Verizon may require refundable deposits from Subscribers 1) with a poor credit or poor payment history, 2) who refuse to provide credit history information to Verizon, or 3) who rent Subscriber equipment from Verizon, so long as such deposits are applied on a non- discriminatory basis. The deposit Verizon may charge Subscribers with poor credit or poor payment history or who refuse to provide credit information may not exceed an amount equal to an average Subscriber's monthly charge multiplied by six (6). The maximum deposit Verizon may charge for Subscriber equipment is the cost of the equipment which Verizon would need to purchase to replace the equipment rented to the Subscriber. B. Verizon shall refund or credit the Subscriber for the amount of the deposit collected for equipment, which is unrelated to poor credit or poor payment history, after one year and provided the Subscriber has demonstrated good payment history during this period. Verizon shall pay interest on other deposits if required by law. C. Under Normal Operating Conditions, refund checks will be issued within the next available billing cycle following the resolution of the event giving rise to the refund, (e.g. equipment return and final bill payment). D. Credits for Cable Service will be issued no later than the Subscriber's next available billing cycle, following the determination that a credit is warranted, and the credit is approved and processed. Such approval and processing shall not be unreasonably delayed. 36 E. Bills shall be considered paid when appropriate payment is received by Verizon or its authorized agent. Appropriate time considerations shall be included in Verizon's collection procedures to assure that payments due have been received before late notices or termination notices are sent. SECTION 8. RATES. FEES AND CHARGES A. Verizon shall not, except to the extent permitted by law, impose any fee or charge for Service Calls to a Subscriber's premises to perform any repair or maintenance work related to Verizon equipment necessary to receive Cable Service, except where such problem is caused by a negligent or wrongful act of the Subscriber (including, but not limited to a situation in which the Subscriber reconnects Verizon equipment incorrectly) or by the failure of the Subscriber to take reasonable precautions to protect Verizon's equipment (for example, a dog chew). B. Verizon shall provide reasonable notice to Subscribers of the possible assessment of a late fee on bills or by separate notice. SECTION 9. DISCONNECTION / DENIAL OF SERVICE A. Verizon shall not terminate Cable Service for nonpayment of a delinquent account unless Verizon mails a notice of the delinquency and impending termination prior to the proposed final termination. The notice shall be mailed to the Subscriber to whom the Cable Service is billed. The notice of delinquency and impending termination may be part of a billing statement. B. Cable Service terminated in error must be restored without charge within twenty- four (24) hours of notice. If a Subscriber was billed for the period during which Cable Service was terminated in error, a credit shall be issued to !he Subscriber if the Service Interruption was reported by the Subscriber. C. Nothing in these standards shall limit the right of Verizon to deny Cable Service for non-payment of previously provided Cable Services, refusal to pay any required deposit, theft of Cable Service, damage to Verizon's equipment, abusive and/or threatening behavior toward Verizon's employees or representatives, or refusal to provide credit history information or refusal to allow Verizon to validate the identity, credit history and credit worthiness via an external credit agency. SECTION 10. COMMUNICATIONS WITH SUBSCRIBERS A. Verizon shall provide a designated local office in the City that provides customer services such as bill payment, equipment pick up or drop off and similar services when Verizon has attained a minimum of Thirteen thousand (13,000) Subscribers. Prior to attaining this level of Subscribers, Verizon shall provide a convenient alternative means for bill payment, and Verizon shall provide for the pick up or drop off of equipment by anyone or more of the 37 following: (i) having a Verizon representative go to the Subscriber's premises; (ii) using a mailer; or (iii) establishing a location(s) for the pick up and drop off of equipment. B. All Verizon personnel, contractors and subcontractors contacting Subscribers or potential Subscribers outside the office of Verizon shall wear a clearly visible identification card bearing their name and photograph. Verizon shall make reasonable effort to account for all identification cards at all times. In addition, all Verizon representatives shall wear appropriate clothing while working at a Subscriber's premises. Every service vehicle of Verizon and its contractors or subcontractors shall be clearly identified as such to the public. Specifically, Verizon vehicles shall have Verizon's logo plainly visible. The vehicles of those contractors and subcontractors working for Verizon shall have the contractor's / subcontractor's name plus markings (such as a magnetic door sign) indicating they are under contract to Verizon. C. All contact with a Subscriber or potential Subscriber by any Verizon representative shall be conducted in a courteous manner. D. Verizon shall send annual notices to all Subscribers informing them that any complaints or inquiries not satisfactorily handled by Verizon may be referred to the City. E. All notices identified in this Section shall be by either: (1) A separate document included with a billing statement or included on the portion of the monthly bill that is to be retained by the Subscriber; or (2) A separate electronic notification. F. Verizon shall provide reasonable notice to Subscribers of any pricing changes or additional changes (excluding sales discounts, new products or offers) and, subject to the forgoing, any changes in Cable Services, including channel line-ups. Such notice must be given to Subscribers a minimum of thirty (30) days in advance of such changes if within the control of Verizon, and Verizon shall provide a copy of the notice to the City including how and where the notice was given to Subscribers. G. Verizon shall provide information to all Subscribers about each of the following items at the time of installation of Cable Services, annually to all Subscribers, at any time upon request, and, subject to Subsection 10.E., at least thirty (30) days prior to making significant changes in the information required by this Section if within the control of Verizon: (1) Products and Cable Service offered; (2) Prices and options for Cable Services and condition of subscription to Cable Services. Prices shall include those for Cable Service options, equipment rentals, program guides, installation, downgrades, late fees and other fees charged by Verizon related to Cable Service; (3) Installation and maintenance policies including, when applicable, information regarding the Subscriber's in-home wiring rights during the period Cable Service is being provided; 38 (4) Channel positions of Cable Services offered on the Cable System; (5) Complaint procedures, including the name, address and telephone number of the City, but with a notice advising the Subscriber to initially contact Verizon about all complaints and questions; (6) Instructions on how to use the Cable Service; (7) Procedures for requesting Cable Service credit; (8) The availability of a parental control device; (9) Verizon practices and procedures for protecting against InVaSIOn of privacy; and (10) The address and telephone number of Verizon's office to which complaints may be reported. A copy of notices required in this Subsection 1O.F. will be given to the City at least fifteen (15) days prior to distribution to subscribers if the reason for notice is due to a change that is within the control of Verizon and as soon as possible if not within the control of Verizon. H. Notices of changes in rates shall indicate the Cable Service new rates and old rates, if applicable. 1. Notices of changes of Cable Services and/or Channel locations shall include a description of the new Cable Service, the specific channel location, and the hours of operation of the Cable Service if the Cable Service is only offered on a part-time basis. In addition, should the channel location, hours of operation, or existence of other Cable Services be affected by the introduction of a new Cable Service, such information must be included in the notice. J. Every notice of termination of Cable Service shall include the following information: (1) The name and address of the Subscriber whose account is delinquent; (2) The amount of the delinquency for all services billed; (3) The date by which payment is required in order to avoid termination of Cable Service; and (4) The telephone number for Verizon where the Subscriber can receIve additional information about their account and discuss the pending termination. 39 EXHIBIT C LETTER OF CREDIT 40 JPMorganChase 0 ~~rcy\W ~~, U~ if .JrMur/(an Cha.~e Bank, N.A. cI" II'Morgan Treasury Services Gln!>al Trade Services 10'120 Highland Manor Drive Talllpa, FL 33610 DEC 7, 2006 OUR L/C ~O.: TPTS-652007 APPLICANT REF. NO.: VZ21 TO: CITY OF VIRGINIA BEACH, VIRGINIA CITY HALL, ROOM 2401 2401 COURTHOUSE DRIVE VIRGINIA BEACH, VA 23456 APPLICANT: VERIZON COMMUNICATIONS INC. O/B/O VERIZON VIRGINIA INC. MC:VC53S459 1 VERIZON WAY BASKING RIDGE, NJ 07920-1097 WE HAVE ESTABLISHED OUR IRREVOCABLE STANDBY LETTER OF CREDIT IN YOUR FAVOR AS DETAILED HEREIN SUBJECT TO UCP500 DOCUMENTARY CREDIT NUMBER: TPTS-652007 DATE OF ISSUE: DECEMBER 7, 2006 BENEFICIARY: CITY OF VIRGINIA BEACH, VIRGINIA CITY HALL, ROOM 2401 2401 COURTHOUSE DRIVE VIRGINIA BEACH, VA 23456 APPLICANT: VERIZON COMMUNICATIONS INC. O/B/O VERIZON VIRGINIA INC. MC:VC53S459 1 VERIZON WAY BASKING RIDGE, NJ 07920-1097 DATE AND PLACE OF EXPIRY: DECEMBER 22, 2007 AT OUR COUNTER DOCUMENTARY CREDIT AMOUNT: USD50,000.00 AVAILABLE WITH: JPMORGAN CHASE BANK, N.A. BY PAYMENT IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE AUTOMATICALLY EXTENDED WITHOUT AMENDMENT FOR ADDITIONAL 12 MONTH PERIODS FROM THE PRESENT OR EACH FUTURE EXPIRATION DATE, UNLESS AT LEAST 60 DAYS PRIOR TO 151647 Rivera, Neils Page I of 3 JPMorganChase 0 ([ J)~)p .JPM"r~an Chase Bank, N.A. c/o JI'l\lorgan Treasury S"rviccs Glol>,.1 Trade Services I042\l Highland Manor Drive Tamp", FL33610 DEC 7, 2006 OUR L/C WO.: TPTS-652007 APPLICANT REF. NO.: VZ21 THE CURRENT EXPIRY DATE WE SEND NOTICE IN WRITING TO YOU VIA SWIFT, TELEX, OR HAND DELIVERY AT THE ABOVE ADDRESS, THAT WE ELECT NOT TO AUTOMATICALLY EXTEND THIS LETTER OF CREDIT FOR ANY ADDITIONAL PERIOD. HOWEVER IN NO EVENT SHALL THIS LETTER OF CREDIT BE AUTOMATICALLY EXTENDED BEYOND THE FINAL EXPIRY DATE OF DECEMBER 22, 2021. UPON SUCH NOTICE TO YOU, YOU MAY DRAW ON US AT SIGHT FORAN AMOUNT NOT TO EXCEED THE BALANCE REMAINING IN THIS LETTER OF CREDIT WITHIN THE THEN-APPLICABLE EXPIRY DATE, BY YOUR SWIFT OR PRESENTATION OF YOUR DRAFT AND DATED STATEMENT PURPORTEDLY SIGNED BY ONE OF YOUR OFFICIALS READING EXACTLY AS FOLLOWS: THE AMOUNT OF THIS DRAWING USD ........... UNDER JPMORGAN CHASE BANK, N.A. LETTER OF CREDIT NUMBER TPTS-652007 REPRESENTS FUNDS DUE US AS WE HAVE RECEIVED NOTICE FROM JPMORGAN CHASE BANK, N.A. OF THEIR DECISION NOT TO AUTOMATICALLY EXTEND LETTER OF CREDIT NUMBER TPTS-652007 AND THE UNDERLYING OBLIGATION REMAINS OUTSTANDING. IN THE EVENT THIS LETTER OF CREDIT IS SUBSEQUENTLY AMENDED BY US TO EITHER: I) RESCIND A NOTICE OF NON-EXTENSION AND TO EXTEND THE EXPIRY DATE HEREOF TO A FUTURE DATE, OR II) EXTEND THE EXPIRY DATE TO A DATE THAT IS AFTER THE STATED FINAL EXPIRY DATE HEREOF, SUCH EXTENSION SHALL BE FOR THAT SINGLE PERIOD ONLY AND THIS LETTER OF CREDIT WILL NOT BE SUBJECT TO ANY FUTURE AUTOMATIC EXTENSIONS UNLESS AN AUTOMATIC EXTENSION PROVISION IS EXPRESSLY INCORPORATED INTO SUCH AMENDMENT. ADDITIONAL DETAILS: THIS LETTER OF CREDIT IS AVAILABLE WITH JPMORGAN CHASE BANK, N.A., AGAINST PRESENTATION OF YOUR DRAFT AT SIGHT DRAWN ON JPMORGAN CHASE BANK, N .A., WHEN ACCOMPANIED BY THE DOCUMENTS INDICATED HEREIN. BENEFICIARY'S DATED STATEMENT PURPORTEDLY SIGNED BY THE MAYOR OR HIS REPRESENTATIVE READING AS FOLLOWS: "THE AMOUNT OF THIS DRAWING USD......., UNDER JPMORGAN CHASE BANKt N.A. LETTER OF CREDIT NO. TPTS-652007 REPRESENTS FUNDS DUE US AS VERIZON VIRGINIA INC. HAS FAILED TO PERFORM ITS DUTIES PURSUANT TO THE CODE OF VIRGINIA AND/OR THE VIRGINIA STATE ORDINANCE UNDER ELECTION OF ORDINANCE 151647 Rivero.Areli. Page 2 of 3 JPMorganChase 0 ~(/ ~~)p ,lPM""~"n ChlL'lC Blink, N...\. cia JPM..rgan Treasury Services Glohal Trade Service.~ 10420 Il;ghland Manor Drive Tampa. 1'1.33610 DEC 7, 2006 OUR LIC ~.: TPTS-652007 APPLICANT REF. NO.: VZ21 CABLE FRANCHISE EFFECTIVE DECEMBER 22,2006. II ALL CORRESPONDENCE AND ANY DRAWINGS HEREUNDER ARE TO BE DIRECTED TO JPMORGAN CHASE BANK, N.A., clo JPMORGAN TREASURY SERVICES, STANDBY LETTER OF CREDIT DEPT. 4TH FL. 10420 HIGHLAND MANOR DRIVE, TAMPA, FLORIDA 33610. CUSTOMER INQUIRY NUMBER IS 1-800-634-1969 CHOOSE OPTION 1. E-MAIL ADDRESS IS: GTS.CLIENT.SERVICES@JPMCHASE.COM. PLEASE HAVE OUR REFERENCE NUMBER AVAILABLE WHEN YOU CONTACT US. WE HEREBY AGREE WITH YOU THAT DRAFTS DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT WILL BE DULY HONORED. THIS CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION) INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 500. THIS LETTER OF CREDIT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. THE NUMBER AND THE DATE OF OUR CREDIT AND THE NAME OF OUR BANK MUST BE QUOTED ON ALL DRAFTS REQUIRED. H.ENRV .LlNO A~ISTANT VICE PRESIDENT 151647 River.. Arch. Page 3 of 3 EXHIBIT D FRANCHISE FEE QUARTERLY REPORT FORM JURISDICTION NAME FRANCHISE FEE SCHEDULE/REPORT For the Quarter Ending: I. Monthly Recurring Cable Service Charges Basic Service Premium Service Other Monthly Charges(e.g. equipment rental) Total Monthly Recurring 2. Usage Based Charges (e.g., pay-Per-View, Video-On-Demand, Installation) 3. Other Misc. (e.g., Late Charges, Advertising, Leased Access) 4. Franchise Fees Collected Less: l. Other Tax/Fee Collected 2. Uncollectibles/Deferrals Total Receipts Subject to Franchise Fee Calculation Franchise Fee Rate 5% Franchise Fee Due 41 Month 1 Month 2 $ Total Service Subscribers: Month 3 $ Quarter Franchise Fee $ EXHIBIT E MUNICIPAL BUILDINGS TO BE PROVIDED FREE CABLE SERVICE FACILITY NAME Facility Address PARKING MANAGEMENT (PW) 710 15TH ST RESORT MAINTENANCE (PW) 710 15TH ST LIGHTHOUSE SHELTER 825 18TH ST TREASURER - BEACH 401 19th ST VB CONVENTION CENTER 1000 19TH ST FREE CLINIC I ACT (aka 'Beach Health Clinic') 302 22ND ST EMS 1917 ARCTIC AVE DEWITT COTTAGE 1113 ATLANTIC AVE OLD COAST GUARD STATION 2401 ATLANTIC AVE F.S.8 - OCEANA I GREAT NECK 1201 BAYNE DR L YNNHA VEN PARK 1246 BAYNE DR GREA T NECK LIBRARY 1251 BAYNE DR DREDGE OPERATIONS 1004 BELLS RD SEA TACK REC CNTR 141 BIRDNECK RD RECOVERY CENTER 409 BIRDNECK CI HNP-CARE 420 BIRDNECK CIR EMS I FIRE TRAINING ADMIN 927 BIRDNECK RD OWLS CREEK TENNIS 928 BIRDNECK RD F .S.12 - SEAT ACK I BIRDNECK 949 BIRDNECK RD F.S.13 - BLACKWATER 6009 BLACKW A TER RD POLICE FIRING RANGE (Vacant?) 1585 CAMPBELLS LANDING RD AMPHITHEATER 3550 CELLAR DOOR WY F.S.3 - LONDON BRIDGE 600 CENTRAL DR CENTRAL PARK AVE, ECONOMIC DEVELOPMENT 222 STE 1000 MR SLP GROUP HOME - CHELSEA 4405 CHELSEA ST FERRY FARM HOUSE (a.k.a 'Ferry Plantation House') 4136 CHESWICK LA BOW CREEK GOLF COURSE 3425 CLUB HOUSE RD BOW CREEK REC CNTR 3427 CLUB HOUSE RO MRSLPGROUPHOME-COLBY 6316 COLBY WY AOV ANCED TECHNOLOGY CENTER I VIDEO SERVICES 1800 COLLEGE CRES ROSEMONT YOUTH LIBRARY 1503 COMPETITOR CT HEAL TH OEPT 4452 CORPORA TION LN CORRECTIONS ANNEX (26) 2371 COURT PLAZA OR COURTS SERVICES I CITY-SCHOOL BENEFITS 2387 COURT PLAZA OR PURCHASING (25) I KEMPSVILLE BLOG 2388 COURT PLAZA OR COMIT I LYNNHAVEN BLOG 2396 COURT PLAZA DR PIO I RISK MGT (22) 2400 COURTHOUSE DR CITY HALL (I) 2401 COURTHOUSE DR OPERA TIONS BLDG (2) 2405 COURTHOUSE DR FIRE ADMIN/P&R (21) 2408 COURTHOUSE DR ENTERPRISE TRAINING ROOM I PROJECT ROOM 2416 COURTHOUSE DR 42 FACILITY NAME HR TRAINING / COM IT / LIB ADMIN / P&R MARKETING (19) HNP (18A) HR/OCC HEALTH/REAL EST A TE ASSESSOR (18) CREDIT UNION (4) POLICE SUPPLY (5) MRSLPGROUPHOME-COVER PUBLIC UTILITIES O&M CITY GARAGE ANNEX PUB LICE WORKS OPERATIONS/HIGHWAYS FARMERS MARKET LANDSCAPE SERVICES MRSLPGROUPHOME-EAGLE MT. TRASHMORE TREASURER - KEMPSVILLE BA YVILLE FARMS PARK BA YSIDE REC CNTR AQUARIUM - NORTH AQUARIUM - SOUTH REDWING PARK SCHOOL ADMIN (6) JUV. DETENTION CENTER (27) BUILDING MAINT (9) MR SLPGROUP HOME-GLADIDLA TEMP - SHERIFF ADMIN (8) MH - GREAT NECK MIDDLE SCHOOL MR SLP GROUP HOME-GREY TREASURER-HAYGOOD F.S.2 - DAVIS CORNER OLD LANDSCAPE SERVICES WASTE MGT/CITY GARAGE PEMBROKE 3 - MH & SA PEMBROKE 6- MH Camp Services POLICE - 3RD PRECINCT BA YSIDE LIBRARY POLICE MOUNTED PATROL STUMPY LAKE GOLF COURSE POLICE TRAINING ACADEMY POLICE FACILITY SKILLQUEST SERVICES HUMAN SERVICES - PALS / RESPITE CARE LANDFILL 2 CORRECTIONS CNTR (7) HUMAN SERVICES (in Old Kemps Landing Magnet School) KEMPSVILLE LIBRARY POLICE - 4TH PRECINCT CITY VIEW PARK MRSLPGROUPHOME-KENTUCKY 2416 2424 2424 2501 2509 912 3500 3556 3556 3640 4141 1304 310 5340 4132 4500 717 717 1398 2512 2533 2569 1128 2565 1848 1604 4507 4672 2728 3024 289 297 926 936 2089 4797 411 2697 400 416 1989 2501 43 Facility Address COURTHOUSE DR COURTHOUSE DR COURTHOUSE DR COURTHOUSE DR COURTHOUSE DR COVERT CT DAM NECK RD DAM NECK RD DAM NECK RD DAM NECK RD DAM NECK RD EAGLE AVE EDWIN DR FAIRFIELD SHOPPING CENTER FIRST COURT RD FIRST COURT RD GENERAL BOOTH BLVD GENERAL BOOTH BLVD GENERAL BOOTH BLVD GEORGE MASON DR GEORGE MASON DR GEORGE MASON DR GLADlOLA CRES GLEBE RD GREAT NECK RD GREY FRIARS CH HAYGOOD RD HAYGOOD RD HOLLAND RD HOLLAND RD INDEPENDENCE BLVD INDEPENDENCE BLVD INDEPENDENCE BLVD INDEPENDENCE BLVD INDIAN RIVER RD INDIAN RIVER RD INTEGRITY WAY INTERNATIONAL PKWY INVESTORS PL INVESTORS PL JAKE SEARS RD JAMES MADISON BLVD 525 832 840 2073 145 KEMPSVILLE KEMPSVILLE KEMPSVILLE KEMPSVILLE KENTUCKY RD RD RD RD AVE FACILITY NAME Facility Address SPORTS STADIUM 2181 LANDSTOWN RD PRINCESS ANNE ATHLETIC COMPLEX 2188 LAN DSTOWN RD MR WORKPLACE - SUGAR PLUM 1353 LASKIN RD MH WORKPLACE - ATLANTIS MANOR 745 LA WRENCE DR CITY GARAGE 2633 LEROY RD POLICE SPECIAL OPS 2650 LEROY RD ANIMAL CONTROL 2665 LEROY RD HELICOPTER HANGAR 2685 LEROY RD F.S.20 - LITTLE NECK 885 LITTLE NECK RD F.S.18 - GREEN RUN 1601 LYNNHAVEN PKWY PARKS CONSTRUCTION & MAINT 2150 LYNNHAVEN PKWY PARKS & REC CITYWIDE PROGRAMS 2289 L YNNHA VEN PKWY SALEM HOUSE DETENTION CENTER 2293 LYNN HAVEN PKWY HUMAN SERVICES - BEACH HOUSE (I) 3143 MAGIC HOLLOW BLVD HUMAN SERVICES - MAGIC HOLLOW II, et. aI. 3160 MAGIC HOLLOW BLVD PLANNING/PW - CIVIL INSPECTIONS (3) (May be vacant) 2401 MATT APONI DR HEATING PLANT (12) 2420 MATT APONI DR INFANT STIMULATION PROG. 2307 MILL WOOD RD KEMPSVILLE REC CNTR 800 MONMOUTH LN PRINCESS ANNE REC CNTR 1400 NIMMO PKWY PRINCESS ANNE LIBRARY 1444 NIMMO PKWY F.S. 21 - GENERAL BOOTH 1468 NIMMO PKWY JUDICIAL CENTER I COM IT TELECOMM (10) 2425 NIMMO PKWY JUV& DOM REL CT (lOA) 2425 NIMMO PKWY CIRCUIT COURT I COURT SUPPORT (lOB) 2425 NIMMO PKWY CITY A TTY IREAL EST A TE (20) 2412 NORTH LANDING RD BUFFINGTON HOUSE 2441 NORTH LANDING RD JAIL TRTMNT I FIRE GYM (23A) 2473 NORTH LANDING RD PENDLETON CHILD CENTER (23) 2473 NORTH LANDING RD MH WORKPLACE - BEACH PARK 854 OLD VIRGINIA BEACH RD MH WORKPLACE - PALM AVE. 100 PALM AVE THOROUGHGOOD HOUSE 1636 PARISH RD VB INFO CENTER I VISITORS CENTER 2100 PARKS AVE CONVENTION-VISITOR BUREAU 2101 PARKS AVE RESORT MANAGEMENT I SPECIAL EVENTS I PARKING 2101 PARKS AVE CONTEMPORARY ARTS CENTER 2200 PARKS AVE MUNDEN POINT INFO CNTR 2001 PEFLEY LN L YNNHA VEN MARINA 3576 PIEDMONT CI F.S.16 PLAZA I WINDSOR WOODS 3608 PLAZA TRL WINDSOR WOODS LIBRARY 3612 PLAZA TRL PW IMOSQUITO CONTROL 1848 PLEASANT RIDGE RD F.S.19 - STUMPY LAKE I SALEM 4196 PLEASANT V ALLEY RD F.S.4 - CHESAPEAKE BEACH 2444 PLEASURE HOUSE RD F.S. 6 I EMS - CREEDS 595 PRINCESS ANNE RD PUNGO/BLACKW A TER LIBRARY I COMM CENTER 916 PRINCESS ANNE RD MUN. REF. I COMIT SYSTEMS (17) 2425 PRINCESS ANNE RD SCHOOL ANNEX (16) 2435 PRINCESS ANNE RD 44 FACILITY NAME Facility Address POLICE AUX (15) 2441 PRINCESS ANNE RD AGRIC./VOTER REG - BLDG 14 2449 PRINCESS ANNE RD F.S.5 - PRINCESS ANNE COURTHOUSE (Bldg 13) 2461 PRINCESS ANNE RD EMERGENCY COMMUNICA nONS (30) 2508 PRINCESS ANNE RD POLICE - 1ST PRCNT (II) 2509 PRINCESS ANNE RD KEMPSVILLE GREENS G.c. 4840 PRINCESS ANNE RD RED WING G.c. 1144 PROSPERITY RD F.S.IO - PROVIDENCE RD 5656 PROVIDENCE RD WOODSTOCK PARK 5709 PROVIDENCE RD F.S.9 - KEMPSVILLE 5145 RURIT AN CT MR SLP GROUP HOME - RYDER CUP 632 RYDER CUP LN F.S.17 - SANDBRIDGE 305 SANDBRIDGE RD LITTLE ISLAND PARK 3820 SANDPIPER RD FIRST LANDING STATE PARK CHES BAY VISITOR INFO CENTER 2500 SHORE DR GREAT NECK PARK 2513 SHOREHAVEN DR GREA T NECK REC CNTR 2521 SHOREHAVEN DR GARAGE - EUCLID YARD 100 SOUTHGATE AVE MR WORKPLACE - CSS 349 SOUTHPORT CI F.S. I - OCEAN PARK 3769 STRATFORD RD F.S. FIRST LANDING (FUTURE) 2253 SUNSTATES CT F.S. 7 - THALIA 407 THALIA RD MR WORKPLACE - SPM 4716 TULIP DR MR SLP GROUP HOME - V ALLEY STREAM 1117 V ALLEY STREAM CT FEMA WAREHOUSE 513 VIKING DR OCEANFRONT LIBRARY 700 VIRGINIA BEACH BLVD BEACH RESCUE 740 VIRGINIA BEACH BL F.S.II - BEACH BOROUGH 800 VIRGINIA BEACH BLVD POLICE - 2ND PRECINCT 820 VIRGINIA BEACH BLVD CONVENTION FIELD OFFICE (CONSTRUCTION TRAILER) 1016 VIRGINIA BEACH BLVD FRANCIS LAND HOUSE 3131 VIRGINIA BEACH BLVD HUMAN SERVICES 3432 VIRGINIA BEACH BLVD CENTRAL LIBRARY 4100 VIRGINIA BEACH BLVD SCHOOL FACILITY ADDRESS Adult Learning Center 4160 VIRGINIA BEACH BLVD Advanced Technology Center 1800 COLLEGE CRES Alanton Elementary School 1441 STEPHENS RD Arrowhead Elementary School 5549 SUSQUEHANNA DR Bayside Elementary School 5649 BA YSIDE RD Bayside High School 4960 HAYGOOD RD Bayside Middle School 965 NEWTOWN RD Birdneck Elementary School 957 BIRDNECK RD S Brandon Middle School 1700 POPE ST Brookwood Elementary School 601 L YNNHA VEN RD S Center for Effective Learning 233 WITCHDUCK RD N Centerville Elementary School 2201 CENTERVILLE TPKE 45 SCHOOL FACILITY ADDRESS Christopher Farms Elementary School 2828 PLEASANT ACRES DR College Park Elementary School 1110 BENNINGTON RD Cooke Elementary School 1501 MEDITERRANEAN AVE CORPORATE Corporate Landing Elementary School 1590 LANDING PKWY CORPORATE Corporate Landing Middle School 1597 LANDING PKWY Cox High School 2425 SHOREHA VEN DR Creeds Elementary School 920 PRINCESS ANNE RD Fairfield Elementary School 5428 PROVIDENCE RD First Colonial High School 1272 MILL DAM RD Glenwood Elementary School 2213 ROUND HILL DR Great Neck Middle School 1848 GREAT NECK RD N Green Run Elementary School 1200 GREEN GARDEN CIR Green Run High School 1700 DAHLIA DR Hermitage Elementary School 1701 PLEASURE HOUSE RD Holland Elementary School 3340 HOLLAND RD Independence Middle School 1370 DUNSTAN LN Indian Lakes Elementary School 1240 HOMESTEAD DR John B Dey Elementary School 1900 GREAT NECK RD N Kellam High School 2323 HOLLAND RD Kemps Landing Magnet Middle School 4722 JERICHO RD Kempsville Elementary School 570 KEMPSVILLE RD Kempsville High School 5194 CHIEF TRL KempsvilIe Meadows Elementary School 736 EDWIN DR KempsvilIe Middle School 860 CHURCHILL DR King's Grant Elementary School 612 L YNNHA VEN RD N Kingston Elementary School 3532 KINGS GRANT RD Landstown Elementary School 2204 RECREATION DR Landstown High School 2001 CONCERT DR Landstown Middle School 2204 RECREATION DR Larkspur Middle School 4696 PRINCESS ANNE RD Linkhom Park Elementary School 977 FIRST COLONIAL RD Luxford Elementary School 4808 HAYGOOD RD Lynnhaven Elementary School 210 DILLON DR Lynnhaven Middle School 1250 BAYNE DR Malibu Elementary School 3632 EDINBURGH DR New Castle Elementary School 4136 DAM NECK RD Newtown Road Elementary School 900 NEWTOWN RD North Landing Elementary School 2921 NORTH LANDING RD Ocean Lakes Elementary School 1616 UPTON DR Ocean Lakes High School 885 SCHUMANN DR Old Donation Center Elementary School 1008 FERRY PLANTATION RD Open Campus 233 WITCHDUCK RD N Parkway Elementary School 4180 OHARE DR Pembroke Elementary School 4622 JERICHO RD Pembroke Meadows Elementary School 820 CATHEDRAL DR Plaza Elementary School 641 CARRIAGE HILL RD Plaza Middle School 3080 L YNNHA VEN RD S 46 SCHOOL FACILITY ADDRESS Point O'View Elementary School 5400 PARLIAMENT DR Princess Anne Elementary School 2444 SEABOARD RD Princess Anne High School 4400 VIRGINIA BEACH BLVD Princess Anne Middle School 2509 SEABOARD RD Providence Elementary School 860 CHURCHILL DR Red Mill Elementary School 1860 SANDBRIDGE RD Rosemont Elementary School 1257 ROSEMONT RD S Rosemont Forest Elementary School 1716 GREY FRIARS CHASE Salem Elementary School 3961 SALEM LAKES BLVD Salem High School 1993 SUNDEVIL DR Salem Middle School 2380 L YNNHA VEN PKWY Seatack Elementary School 912 BIRDNECK RD S Shelton Park Elementary School 1700 SHELTON RD Strawbridge Elementary School 2553 STRA WBRIDGE RD Tallwood Elementary School 2025 KEMPSVILLE RD Tallwood High School 1668 KEMPSVILLE RD Technical and Career Education Center 2921 NORTH LANDING RD Thalia Elementary School 421 THALIA RD Thoroughgood Elementary School 1444 DUNSTAN LN Three Oaks Elementary School 2201 ELSON GREEN AVE Trantwood Elementary School 2344 INL YNNVIEW RD Virginia Beach Central Academy High School 233 WITCHDUCK RD N Virginia Beach Middle School 600 25TH ST White Oaks Elementary School 960 WINDSOR OAKS BLVD Williams Elementary School 892 NEWTOWN RD Windsor Oaks Elementary School 3800 V AN BUREN DR Windsor Woods Elementary School 233 PRESIDENTIAL BLVD Woodstock Elementary School 6016 PROVIDENCE RD SCHOOL FACILITY FACILITY ADDRESS Pungo Building - P A Executive Park 2380 PRINCESS ANNE RD Princess Anne Building - PA Executive Park 2387 PRINCESS ANNE RD Laskin Road Annex (Old Linkhom Park Elementary) 1413 LASKIN RD Oceana Bus Garage 1612 NEW YORK AVE Glenwood Bus Garage 2201 ROUND HILL DR School Plant 231 WITCHDUCK RD N Supply Warehouse 5120 CLEVELAND ST Transportation Administration 2650 LEROY RD Old Kemps Landing Site (swing school) 525 KEMPSVILLE RD 47 .... z w :E w w ~ C) <( w en - :I: o Z ~ LL . o z S z - C) ~ :> LL o Z o N 52 w > LL o en :E ~ w .... 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Q) :0 ro .~ ~ . ~en ro Q) '- :5"0 .- C 3= ro en Q) 3= U ro c- ro- "0 ro L- U o 0 u- u"o ro C ro .~ Q) ..... "O~ Q) en E....: L- ro .g Q5 Q)"O a..~ (") ..... o (") Q) OJ ro 0.. ..J <C ~ w z w ~ - 30 - Item v.J.3. ORDINANCES/RESOLUTION ITEM #56200 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Ordinance to AUTHORIZE the City Manager to enter into a contract with Cherry, Bekaert & Holland LLP, for an Independent Audit of the City, and the Development Authority for fiscal years 2007-08 at a contract cost of One Hundred Sixty-Seven Thousand Five Hundred and Fifty Dollars ($153,550 City, $14,000 VBDA, $167,550 Total) for FY 2007 and a four percent (4%) increase for FY 2008 for the City and $1,000 increase for the Development Authority Voting: 11-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None March 13, 2007 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO ENTER INTO A CONTRACT FOR AN INDEPENDENT AUDIT OF THE CITY OF VIRGINIA BEACH'S FINANCES WHEREAS, the City Charter requires an independent audit of the City's finances at the end of each fiscal year; WHEREAS, a financial audit selection committee has prepared and distributed a Request for Proposals ("RFP") for an independent audit of the City's financial statements, including the School Division, for the 2007 and 2008 fiscal years, respectively; WHEREAS, after evaluating the proposals, the selection committee has recommended Cherry, Bekaert & Holland LLP to perform the independent audit; WHEREAS, pursuant to the RFP, the School Division intends to enter into a separate contract for this audit; and WHEREAS, sufficient appropriations have been provided for the City's audit in the fiscal year 2007 Operating Budget. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: 1. The City Manager is hereby authorized to enter into a contract with Cherry, Bekaert & Holland LLP, in a form acceptable to the City Attorney, for the performance of an independent annual audit of the financial statements of the City of Virginia Beach and the City of Virginia Beach Development Authority for FY 2007 and 2008, at a cost of One Hundred Sixty- Seven Thousand, Five Hundred Fifty Dollars ($167,550.00) for FY 2007. 2. For FY 2008, the annual cost of services for the City will increase by four percent (4 %) . In subsequent years, the annual cost of services for the City will increase in an amount equal to the increase in the Consumer Price Index ("CPI"). For FY 2008 and subsequent years, services for the Development Authority will increase by One Thousand Dollars ($1,000.00) 3. contract, additional periods. The City subject years Manager is hereby authorized to renew the to the availability of appropriations, for thereafter, not to exceed three one-year 47 Adopted by the Council of the City of Virginia Beach on the 48 13thday of March , 2007. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: R~ City AttorneY'~iCe CA10284 v:\applications\citylawprod\cycom32\WpdOCS\0028\P002\O0029044.00C R-3 March 6, 2007 - 31 - Item V.J.4 ORDINANCES/RESOLUTION ITEM #56201 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Resolution to A UTHORIZE the City Manger to enter into an agreement with property owners on Lake Rudee, Lake Wesley or Owl's Creek, who have valid dredging permits, to use the Lake Rudee Disposal Area for privately dredged materials Voting: 11-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None March 13, 2007 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 REQUESTED BY COUNCILMEMBER JOHN E. UHRIN A RESOLUTION AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AN AGREEMENT FOR THE PLACEMENT OF DREDGED MATERIAL IN THE CITY-OWNED DISPOSAL AREA IN LAKE RUDEE WHEREAS, a number of individuals and neighborhood associations on behalf of their members have expressed a desire to dredge property located on Lake Rudee, Lake Wesley or Owl's Creek; and WHEREAS, there are currently few adequate and practical disposal sites for dredged material that are available for such projects; and WHEREAS, the City owns a disposal area within Lake Rudee (hereinafter the "Lake Rudee Disposal Area"), into which the City is permitted to dispose of dredged material from the public channels within the inner harbor of Lake Rudee; and WHEREAS, the Lake Rudee Disposal Area contains sufficient excess capacity to accept dredged material from projects other than the dredging of the Lake Rudee inner harbor, and no adverse environmental impacts will result from the disposal of dredged material in the Lake Rudee Disposal Area; and WHEREAS, the proposed Lake Rudee Dredged Material Disposal Area Use Agreement provides for the terms and conditions upon which the Lake Rudee Disposal Area may be used for the disposal of dredged material; NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the City Manager is hereby directed to enter into, on behalf of the City of a Dredged Material Disposal Area Use Agreement property located on Lake Rudee, Lake Wesley or have a valid permit to dredge such property. authorized and Virginia Beach, wi th owners of Owl's Creek who A Summary of 1 44 Material Terms of such Agreement is hereto attached and a true 45 copy thereof is on file in the City Clerk's Office. 46 47 48 Adopted by the Council of the City of Virginia Beach, 49 Virginia, on this 13th day of March , 2007. CA-10263 v:\applications\citylawprod\cycom32\WpdoCS\D019\P001\OO028546.DOC R-3 February 20, 2007 APPZJ~/il7iJENCY' City Attorney's Office 2 Lake Rudee Dredged Material Disposal Area Use Agreement Summary of Material Terms Parties: (1) City of Virginia Beach; (2) individuals or representatives of individuals owning property on Lake Rudee, Lake Wesley or Owl's Creek ("User"). Basic Premise: City allows User to dispose of dredged material from private dredging projects in Lake Rudee, Lake Wesley or Owl's Creek in Lake Rudee Dredged Material Disposal Site User Responsibilities: . No placement of hazardous materials; will indemnify City for any discharge of same, including cost of cleanup, penalties, etc.; . Maintain erosion & sediment control bond; . Notify City Manager and Director of Aquarium two weeks in advance of commencement of work; . Pay the City a specified amount for each cubic yard of material above limit specified in agreement; . Provide on-site attendant to monitor work; . Take precautions specified by the City to prevent misplacement of dredged material; . Have written agreement with contractor requiring contractor to be bound by terms of Use Agreement (User must send copy to City); . Indemnify City for all damage, injury, etc. to third parties . In the event material is placed outside of authorized Disposal Area, User must discontinue dredging operation until misplaced materials are recovered, at the sole expense of the User, to the sole satisfaction of the regulatory agencies having purview and the City. Cost: . No fee for disposal unless in excess of amount specified in Use Agreement Termination: . Expires on date specified in Use Agreement; . City may suspend or revoke Use for failure of User to comply; . User may terminate upon completion of work or abandonment of project Other Conditions: . All improvements to Disposal Area and plans for its use to be designed by a qualified professional engineer and be in compliance with all applicable federal, state and local development standards and policies; . All plans to be reviewed and approved by the City prior to commencement of work;; . User must have valid permit for dredging; . Limitation on amount of dredged material placed in Disposal Area; . User to perform survey and provide to City to ascertain amount of dredged material placed in disposal area and minimum depth; . City to perform inspection within 30 days of termination or expiration to determine compliance; defects to be corrected prior to release of erosion & sediment control bond; . All improvements to Disposal Area and plans for its use to be designed by a qualified professional engineer and in compliance with all applicable federal, state and local development standards and policies; . All plans to be reviewed and approved by the City prior to commencement of work 2 - 32 - Item V-K. PLANNING ITEM # 56202 1. VIRGINIA BEACH RACQUET CLUB VARIANCE NORTH ASSOCIPATES, LP 2. VALUE PLACE REAL ESTATE SERVICES, LLC 3. WANDA DINARDO 4. GREATER REFUGE OUTREACH MISSION CONDITIONAL USE PERMIT MODIFICATION OF PROFFERS (approved February 28,2006) CONDITIONAL USE PRMIT CONDITONAL USE PERMIT March 13, 2007 - 33 - Item V.K.. PLANNING ITEM # 56203 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED Items 1, 2, (DEFERRED), 3 and 4 of the PLANNING BY CONSENT AGENDA. Item No.2 (VALUE PLACE REAL ESTATE) was DEFERRED until the City Council Session of March 27, 2007. Voting: 11-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None March 13, 2007 - 34- Item v'K.J. PLANNING ITEM # 56204 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED Ordinances upon application of VIRGINIA BEACH RACQUET CLUB NORTH SSOCIATES, LP, for a Variance to ~4.4(b) of the Subdivision Ordinance that requires all newly created lots meet the requirements of the City Zoning Ordinance (CZO) for three (3) single family dwellings: Appeal to Decisions of Administrative Officers in regard to certain elements of the Subdivision Ordinance, Subdivision for Virginia Beach Racquet Club North Associates, L.P. Property is located on the west side of Thomas Bishop Lane, approximately 700 feet north of North Great Neck Road (GPINs 1499478099; -469641; -561357; -0781). DISTRICT 5 - LYNNHA VEN AND, ORDINANCE UPON APPLICATION OF VIRGINIA BEACH RACQUET CLUB NORTH ASSOCIATES, L.P. FOR A CONDITIONAL USE PERMIT FOR A COMMUNITY PIER R030734209 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Virginia Beach Racquet Club North Associates, L.P. for a Conditional Use Permit for a community pier on property located on the west side of Thomas Bishop Lane, approximately 700feet north of North Great Neck Road (GPINs 1499478099; -469641; -561357; -0781). DISTRICT 5 -LYNNHAVEN The following conditions shall be required: 1. The site layout and general location of the community boat dock shall be in substantial conformance with the exhibit entitled, "Exhibit of Thomas Bishop Lane, " prepared by MSA, P.c., dated 1/08/07, which has been exhibited to the City Council and is on file with the Planning Department. 2. The community pier shall be used only by the residents of the three (3) residential properties depicted on the exhibit entitled, "Exhibit of Thomas Bishop Lane, " prepared by MSA, P.c., dated 5/31/06 and 1/08/07, which has been exhibited to the City Council and is onfile with the Planning Department. 3. All Federal, State and City approvals shall be obtained prior to the issuance of any building permits. The parcels shall connect to the City water and sewer system; however, approval of this subdivision variance shall not infer that City water and sewer service will be accessible or provided by the City. 4. No commercial use of the community pier shall be permitted. 5. The community pier is subject to all applicable federal, state and local rules and regulations. March 13, 2007 - 35 - Item V.K.1. PLANNING ITEM # 56204 (Continued) These Ordinances 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 Thirteenth of March Two Thousand Seven Voting: 11-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None March 13, 2007 - 36 - Item V.K.2. PLANNING ITEM # 56205 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council DEFERRED until the City Council Session of March 27, 2007, Ordinances upon application of VALUE PLACE REAL ESTATE SERVICES, LLC. for a Modification of Proffers to allow a change of use from an office/warehouse facility to the development of a hotel (Conditional Change of Zoning approved on February 28. 2006) and a Conditional Use Permitfor a hotel: ORDINANCE UPON APPLICATION OF VALUE PLACE REAL ESTATE SERVICES, L.L.c. FOR A MODIFICATION OF PROFFERS Ordinance upon application of Value Place Real Estate Services, L.L.c. for a Modification of Proffers approved by City Council on February 28, 2006. Property is located at 1357 Diamond Springs Road (GPIN 1469009994). DISTRiCT 4 - BAYSIDE AND, ORDINANCE UPON APPLICATION OF VALUE PLACE REAL ESTATE SERVICES, L.L.c. FORA CONDITIONAL USE PERMIT FOR A HOTEL Ordinance Application of Value Place Real Estate Services, L.L.C.for a Conditional Use Permit for a hotel on property located at 1357 Diamond Springs Road (GPIN 1469009994). DISTRiCT 4 - BAYSIDE Voting: 11-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None March 13, 2007 - 37 - Item v'K.3. PLANNING ITEM # 56206 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED an Ordinance upon application of WANDA DINARDO for a Conditional Use Permit for a home Daycare: ORDINANCE UPON APPLICATION OF WANDA DINARDO FOR A CONDITIONAL USE PERMIT FOR A HOME OCCUPATION (DAYCARE) R030734210 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Wanda DiNardo for a Conditional Use Permit for a home occupation (Daycare) on property located at 2424 Peritan Road (GPIN 1497981390). DISTRICT 6 - BEACH The following conditions shall be required: 1. This Daycarefacility shall be limited to a total of nine (9) children during a single day. 2. No signs advertising the home Daycare shall be permitted on the premises or installed on the lot or buildings on the lot at any time. 3. The applicant shall, within six (6) months of the approval of this Use Permit, obtain afamily Daycare home license from the Commonwealth of Virginia and shall maintain said license in good standing. Failure to maintain afamily Daycare home license shall result in revocation of this Use Permit. 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 Thirteenth of March Two Thousand Seven Voting: 11-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice MayorLouis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndor! John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None March 13, 2007 - 38 - Item v'K.4. PLANNING ITEM # 56207 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED Ordinance upon application of GREATER REFUGE OUTREACH MISSION for a Conditional Use Permit: ORDINANCE UPON APPLICATION OF GREATER REFUGE OUTREACH MISSION FOR A CONDITIONAL USE PERMIT FOR A CHURCH R030734211 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Greater Refuge Outreach Mission for a Conditional Use Permit for a church on property located at 6113 Indian River Road (GPIN 1456431518). DISTRiCT 1- CENTERVILLE The following conditions shall be required: 1. The number of individuals attending a service shall not exceed ninety (90)or the number established by the City's Fire Marshall, with the lower number of the two being the maximum. 2. The applicant shall not use the space within the building for church purposes until all requirements of the Zoning Ordinance and the relevant Building Code provisions pertaining to a church have been satisfied and a Certificate of Occupancy for use of the space as a church has been obtained from the Department of Planning / Permits and Inspections Division. 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 Thirteenth of March Two Thousand Seven Voting: 11-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None March 13, 2007 - 39 - Item v.L.], APPOINTMENTS ITEM # 56208 BY CONSENSUS, City Council REMOVED from the Agenda: INVESTMENT PARTNERSHIP ADVISORY COMMITTEE - PPEA March 13, 2007 - 40- Item v'L.2. APPOINTMENTS ITEM # 56209 Upon NOMINA TION by Vice Mayor Jones, City Council APPOINTED: Barbara Ferguson Unexpired thru 6/30/07 Plus 3 yrs 7/1/07 - 6/30/10 Ken Jobe Appointed, Unexpired thru 6/30/08 BEACHES AND WATERWAYS COMMISSION Voting: 11-0 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None March 13, 2007 - 41 - Item V.L.3. APPOINTMENTS ITEM # 56210 Upon NOMINATION by Vice Mayor Jones, City Council: APPOINTED: Dr. Chris Hooper Unexpired thru 3/31/08 Esther Martin Unexpired thru 3/31/09 REAPPOINTED: Glen C. Snyders Reappointed 3 yrs 4/1/07 - 3/31/10 Voting: 11-0 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None March 13, 2007 - 42- Item V-O. ADJOURNMENT ITEM # 56110 Mayor Meyera E. Oberndor! DECLARED the City Council Meeting ADJOURNED at 6:13 P.M. Q~L!3~- Bever~'o. Hooks, CMC Chief Deputy City Clerk --------------------------------- uth Hodges Fraser, MMC City Clerk Meyera E. Oberndorf Mayor City of Virginia Beach Virginia March 13, 2007