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Home My WebLink AboutMAY 1, 2007 MINUTES CITY OF VIRGINIA BEACH "COMMUNITY FOR A LIFETIME" CITY COUNCIL MAYOR MEYERA E. OBERNDORf~ At-Large VICE MAYOR LOUIS R. JONES, Bayside - District 4 WILLIAM R. DeSTEPH, At-Large HARRY E. DlEZEL, Kempsville - 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 ATTORNEY - LESLIE L. LILLEY CITY CLERK - RUTH HODGES FRASER, MMC 1 MAY 2007 CITY HALL BUILDING 2401 COURTHOUSE DRIVE VIRGINIA BEACH, VIRGINIA 23456-8005 PHONE:(757) 385-4303 FAX (757) 385-5669 E-MAIL: Ctycncl@vbgov.com I. CITY COUNCIL WORKSHOP - Conference Room - A. RESOURCE MANAGEMENT PLAN FY 2007-2008 Operating and Capital Budget II. CITY COUNCIL COMMENTS III. CITY COUNCIL LIAISON REPORTS IV. REVIEW OF AGENDA V. INFORMAL SESSION - Conference Room - A. CALL TO ORDER - Mayor Meyera E. Oberndorf B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION 9:00 AM 4:30 PM VI. FORMAL SESSION - Council Chamber - 6:00 PM A. CALL TO ORDER - Mayor Meyera E. Oberndorf B. INVOCATION: Reverend Richard J. Yates Pastor, Beachlawn 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. 2. PUBLIC HEARING INFORMAL and FORMAL SESSIONS April 19, 2007 April 24, 2007 G. AGENDA FOR FORMAL SESSION H. PUBLIC HEARING 1. TAXI CAB REGULATION/RECIPROCITY ISSUES I. PUBLIC COMMENT 1. HAMPTON ROADS TRANSPORTATION AUTHORITY (HRTA) (City's Participation) J. CONSENT AGENDA K. ORDINANCES 1. Ordinance to AUTHORIZE the acquisition ofa portion of property at the intersection of Potters Road, Lynnhaven Parkway and Lynnhaven Road South from THUMEL ASSOCIATES, L.c. and DIRECT the City Manager to EXCUTE an agreement with all documents pertaining thereto. DISTRICT 5 - L YNNHA VEN 2. Ordinance to AUTHORIZE a Franchise to CAVALIER IPTV, LLC., re the construction, operation and maintenance of a Cable system within the City of Virginia Beach. 3. Ordinance to TRANSFER $3j900,000 within the FY 2006-07 School Board Operating Budget: a. $2,375,000 from Instruction to Operations and Maintenance b. $500,000 from Instruction to Transportation c. $825,000 from Instruction to Administration d. $200,000 from Instruction to the School Cafeteria Fund L. APPOINTMENTS HEALTH SERVICES ADVISORY BOARD MINORITY BUSINESS COUNCIL OPEN SPACE ADVISORY COMMITTEE TOWING ADVISORY BOARD M. UNFINISHED BUSINESS N. NEW BUSINESS O. ADJOURNMENT CITYWIDE TOWN MEETINGS June 19 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 May 8 (Reconciliation Workshop) May 15 (Adoption) 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 Hearing impaired, call: Virginia Relay Center at 1-800-828-1120 * * * * * * * * * * * Agenda 02/03/2007mb www.vbgov.com - 1 - MINUTES VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia 1 May 2007 Mayor Meyera E Oberndorf called to order the City Council Workshop re the RESOURCE MANAGEMENT PLAN (FY 2007-2008 Operating and Capital Budget) in the City Council Conference Room, City Hall, on Tuesday, May 1,2007, at 9:15A.M Council Members Present: Harry E. Diezel, 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: William R. "Bill" DeSteph [Entered: 9:40 A.M Robert M Dyer [Entered: 1:30 P.M - Wife's surgery pre opsJ May 1, 2007 - 2 - CITY COUNCIL WORKSHOP RESOURCE MANAGEMENT PLAN (FY 2007-2008 Operating and Capital Budget) 9:15 A.M ITEM # 56347 Public Utilities Capital Improvement Program Thomas Leahy, Director - Public Utilities, advised during the 1970 's and 1980 's, due to a unsatisfactory system acquired from the City of Norfolk, there was a lot of money expended on water distribution. In the 1980 's and 90 's, the water supply issue re ground water, neighborhood and Lake Gaston projects dominated Public Utilities Capital Improvement Program. Today, from the year 2000 and beyond, the aging infrastructure, and specifically the sewer system, dominates the Capital Improvement Program (CIP). WawrandSewerRaws . 2005 - City Council Authorized Rates for FY2006 thru FY2010 . 6.5% in FY2006, 3.8% (average) in FY2007, FY2008, FY2009, FY2010 . The Public Utilities Capital Improvement Program increased from $ 15-MILLOIN per year -7 $25-MILLION per year . Restored purchasing power eroded by inflation . Along with reprioritization, provided boost to aging infrastructure program Capital Improvement Program FY 95/96 - 11/12 $30 $25 Iii c $20 .~ ~ $15 Cl c '6 c $10 ~ u.. $5 $- f-- c- - - - .... I- 1-1 !III ,. . . .. !III !III · . .. .. !III · .. ,... . Water Funding . Sewer Funding ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ , .~' , , , , , , . , '~' . . , , ~~~~~~~~~~~~~~~~~ Fiscal Years May 1, 2007 - 3 - CITY COUNCIL WORKSHOP RESOURCE MANAGEMENT PLAN (FY 2007-2008 Operating and Capital Budget) ITEM # 56347 (Continued) Public Utilities Capital Improvement Program (Continued) Aging Infrastructure CIP Funding $18 $16 _ $14 Ul ~ $12 !. $10 $8 $6 $4 $2 $- - - - - - - - - - I: - .. 11II 11II 11II ~ 11II 11II ,.. . Water Funding . Sewer Funding 0) .!: "C s::: ::::I u.. ~~~~~~~~~~~~~~~~~ ~'~'~'~'~'~'~'~~~'~'~'~'~'~'~'~'~' ~~~~~~~~~~~~~~~~~ Fiscal Years Virginia Beach Sanitary Sewer System . Four hundred (400) Sewer Pump Stations · One thousand six hundred (1,600) Miles of Sewer Mains · Thirty thousand (30,000) Manholes . One hundred thirty thousand (130,000) Lateral Connections . Cost to build today >$2 Billion . 40% built before 1980: clay pipe · 13% built before 1970: acquired The Regional Sanitary Sewer Reduction Consent Order is one of the largest unfunded mandates to ever "hit" local governments. This Consent Order is requiring many items which have already commenced as part of addressing the aging infrastructure. Thus, there is a substantial overlap. Under the Consent Order, Public Utilities is required to rehabilitate and replace sewer systems at a rate far faster than recommended prior to this Consent Order. Regional Consent Order Mandates · Phase 1: FY2008 to FY2012 Flow Monitoring - System Surveys (Cleaning and CCTV) Find & Fix Enhanced Operation and Maintenance (MOM) FY08 to FY12 CIP is $4-MILLION-$5-MILLION per year under funded · Phase 2: FY2013 and beyond Long-term, sustainable Capital Improvement Program for rehabilitation and replacement (to address Capacity) May 1, 2007 - 4 - CITY COUNCIL WORKSHOP RESOURCE MANAGEMENT PLAN (FY 2007-2008 Operating and Capital Budget) ITEM # 56347 (Continued) Public Utilities Capital Improvement Program (Continued) Public Utilities is not proposing additional rate increases for FY2008 with the same goal for FY2009 and 2010. Some highway and storm water coordination funds will be redirected, as well as transfers from retained earnings. The Cost of Service Analysis is underway. Public Utilities will need rate increases for FY2011 and beyond Proposed Consent Order Timing . Localities will execute order in June 2007 . The Virginia Department of Environmental Quality will advertise in the State Register - August 2007 . Public Hearings in September 2007 . Department of Environmental Quality executes Order September 2007 . Looming issue with HRSD may impact time table The City could be fined as much as $32,500 for every sanitary sewer overflow Mr. Leahy displayed the graph entitled "Average Monthly Water and Sewer Bill". Over the last ten (10) years, the rates have changed. Effective July 1, 2008, Virginia Beach will be the second lowest total water bill in the Region (only afew dollars above the City of Portsmouth). Five Year Forecast of Revenues & Expenses $140,000 $120,000 l/l $100,000 "0 c: $80,000 ro l/l :J $60,000 0 ..c: f- $40,000 E $20,000 $0 2007 2008 2009 2010 2011 2012 2013 Budget Budget Projected Projected Projected Projected Projected o Debt Service 13,199 14,487 15,446 17,217 18,767 20,460 22,116 ~- . Personnel Costs 26,045 27,302 28,773 30,340 32,008 33,786 35,682 11II Other Costs 54,312 54,621 55,989 57,253 58,566 59,914 61,284 ---- lJ Revenues 93,555 96,410 101,362 105,550 106,009 106,297 106,259 Average increase/rom 2007 to 2013: o Debt Service = 11.3% o Personnel Costs = 6.2% o Other Costs = 2.1% Last rate increase goes into effect 2010. The Budget Drivers in Public Utilities are dominated by debt service and the compensation packge. May 1, 2007 - 5 - CITY COUNCIL WORKSHOP RESOURCE MANAGEMENT PLAN (FY 2007-2008 Operating and Capital Budget) ITEM # 56347 (Continued) Public Utilities Capital Improvement Program (Continued) Every Sanitary Sewer Overflow (SSO) is technically illegal and has been since 1972. This Fiscal Year, there have only been eighty-two (82) Sanitary Sewer Overflows, decreasing from approximately twelve (12) SSO's per hundred miles of collection pipe to approximately five (5) SSO's. Anything less than six or seven SSO's is considered very good. All of these pump stations, which are integral parts of this Consent Order, are monitored by a large computer system. This Consent Order will hit Portsmouth, Chesapeake and Suffolk very hard. Norfolk has been under a Consent Order for approximately (5) years. Suffolk has a 30% increase in their sewer rates, with two (2) more 30% increases in the next two Fiscal Years. The City commenced work prior to this Consent Order Mr. Leahy, advised at the present time, there are fifty (50) portable generators and over two hundred (200) "quick connect" stations. Many of the stations now being built have permanent generation capacity. This will also be added to the existing stations, although at a slower rate. Contracts have been issued with the Garner Corporation (Emergency Response Team) to bring in fifty (50) more portable generators during a storm, if more than the City's present fifty (50) are required. During Tropical Storm Ernesto, the twenty-five (25) Sanitary Sewer Overflows occurred because the Hampton Roads Sanitation District facilities at the Laskin Road Corridor were and still are substantially undersized. These facilities along this Corridor will be expanded with construction commencing next year, FY 2008 and completed FY 2010. This Consent Order is related to the Clean Water Act. Relative the North Virginia Beach closures, Public Utilities, has reviewed thefour (4) stations in this area, expending approximately $100,000 smoke, dye, and force main testings, as well as examining capacity. If there were any human contribution to these beach closures, Public Utilities was unable to find same. There are some significant areas of infiltration and inflow at the South Beach re private trailer parks and other private facilities,' however, this would not account for North Beach water quality issues. Phil Davenport, Director - Public Works, advised the proposed 6Ft Street Pump Station would address the North Beach closures. The areas of the Beach closures last year were the same areas where Beach outfalls occurred (79th and 64th Street areas). 64st Street is a fairly low volume pump station. Outfall has been diverted so this system goes into 42nd Street pump station. The outfall has been eliminated at the Beach at 64th Street. At 7gth Street, on either side of the pump station, filters have been placed in the storm water collection system to filter out whatever biologicals may be seeping into the system. Last Friday, April 20, 2007, Public Works fully pressure washed all the wet wells of the 79th Street Pump Station. This week, the staffwill be excavating the sand of the ditch at the end of the outfall (approximately 2feet deep) . The Beach in this vicinity will be regarded with cleaner sand. The wet wells will continue to be cleaned on a weekly basis. Mr. Davenport advised Public Works is working with one consultant re the 6Ft Street pump station located in the median. The total cost entailed is $16,250,000 ($1,850,000 - design cost, $5.4-MILLION - pump station, $6-MILLION - ocean outfall and $3-MILLION - collection system). Approximately $6.8-MIILLION more is needed in next year's budget to fully fund this project. Assuming, concurrence with the design in the median, design should be completed in Spring 2008 with construction to begin in the Fall of 2008 (18-24 month construction cycle). Mr. Davenport shall inquire relative the possibility of Federal funding. Mayor Oberndorf advised relative hurricanes and tropical storms, not only Police and Fire assume active duty, but their staffs who man the City's pump stations are also deployed immediately to enable our facilities to keep functioning effectively. May 1, 2007 - 6- CITY COUNCIL WORKSHOP RESOURCE MANAGEMENT PLAN (FY 2007-2008 Operating and Capital Budget) . ITEM # 56347 (Continued) 10:21 A.M. Facilities/Space David Hansen, Chief of Finance and Technology, advised the City has over 3-MILLION square feet of facilities, of which 2.7-MILLION are occupied. This makes the City the single largest landlord in Virginia Beach. A Binder with support data enclosing validations to date, copies of the individual reports to Department Directors, self-assessments of their individual departments and findings to date has been provided to City Council. The major mission is to establish priorities. Mr. Hansen reiterated the City Council Policy: It is the policy of City Council to support the planned maintenance and repair of the City's infrastructure in a manner which provides the best facilities at the least cost and maintains the value of the City's investment. It is the policy of the City Council to treat infrastructure maintenance and repair cots as fixed cost for new projects. It is the long-term goal of City Council to achieve maintenance and repair levels which insure that the City's infrastructure is functional and maintained in good condition by allocating the resources required by condition assessment surveys or generally accepted industry funding standards. It is the policy of City Council to see the expansion of resources capacity for these purposes. Validation of the Commitment Fire Stations - $10.4-MILLION New - Sandbridge, Strawbridge, General Booth and First Landing Stations Renovation - Plaza Fire Station Lwrari~-$1~AfILLION New - Beach and Bayside Branches Renovation - Great Neck, Kempsville, Central, and Windsor Woods Police - $3.4-MILLION New - 3rd Precinct Convention Center May 1, 2007 - 7 - CITY COUNCIL WORKSHOP RESOURCE MANAGEMENT PLAN (FY 2007-2008 Operating and Capital Budget) ITEM # 56347 (Continued) Facilities/Space (Continued) What the Budet Shows Building Infrastructure Maintenance & Renewal Funding FY 2007-08 Resort Building Maintenance 2% Recreation Center Maintenance 5% Custodial Maintenance 13% General Maintenance 10% Heat & Air Conditioni 6% Rehabilitation & Replacement 51% Buldlng Inrr..tructure Mlilnl...nc. & Renew.1 Funding FY2007..o. 0,."..", "'- $14.444.127 48% "-....... $15,490,544 52% PUBLIC WORKS BUILDING MAINTENANCE CONDITION ASSESSMENT The purpose of assessments is to determine the condition of building components, or systems, to establish a schedule for the replacement or up-grade of these systems and to project costs for the replacement or upgrade. BENEFITS 1. Provide a baseline of existing building system conditions 2. Develop the backlog of system replacements /upgrades that are needed to be performed 3. Provide the ability to bundle similar work to achieve economy 4. Enable PW/Building Maintenance to forecast budgetary impacts for system replacement OCCUPIED BUILDINGS/SQUARE FOOTAGE Total Amount 145@2,714,989 Sq Ft COMPLETED TO DATE PW 17@460,203sqft P & R 6(ii), 400,995 SQ (t Total 23@861,198 sqft REMAINING 145 - 23 = 122 BUILDINGS 2,714,983 - 861,198 = 1,853,785 SQ FT May 1, 2007 - 8 - CITY COUNCIL WORKSHOP RESOURCE MANAGEMENT PLAN (FY 2007-2008 Operating and Capital Budget) ITEM # 56347 (Continued) Facilities/Space (Continued) Facility Condition Assessment The most common benchmark used to rate the overall condition of afacility is through the application of the Facility Condition Index (FCI). The FCI is developed by comparing the cost of the backlog of the facilities to the corresponding value of the facilities. FCI Range Condition Rating Under 0.05( 5%) GOOD Between 0.05( 5%) - 0.10 (10%) FAIR Over 0.10 (10%) POOR Tables 1 & 2 provide the FCI for each facility based on the deficiencies in the individual inspection reports City Hall Building ibrary-Municipal Ref/Info Tech griculture/V oter Registrar $3,429,920 $127,064 0.04 eating and Cooling Plant $2,547,740 $92,391 0.04 City Attorney - Real Estate $2,354,040 $315,996 0.13 ibrary AdminlHR Training/ $5,187,520 $429,111 0.08 ComIT olice-Aux / Crime Prevention ,598 $675,480 $43,240 0.06 7,103 $4,446,780 $177,871 0.04 6,000 $1,560,000 $82,468 0.05 olice Uniform & Supply ,630 $423,800 $13,324 0.03 andscape Srv/Gen Maint 9,600 $2,496,000 $35,888 0.01 tora e olice - First Precinct 57,588 $14,972,880 $1,131,705 Operations Bldg 96,577 $25,110,020 $886,786 Courts & Support 55,000 $14,300,000 $634,309 endleton Child Service Center 9,0.1 $4,948,060 $255,311 acility Mgt/ HR/ Real Estate 9,189 $10,189,140 $406,024 ousing & Neighborhood Prev ,784 $2,543,480 $106,180 May 1, 2007 - 9- CITY COUNCIL WORKSHOP RESOURCE MANAGEMENT PLAN (FY 2007-2008 Operating and Capital Budget) ITEM # 56347 (Continued) Facilities/Space (Continued) $5,367,180 $149,969 0.03 $21,380,580, $1,205,249 0.06 $21,761,740, $1,811,030 0.08 $11,616,540, $583,205 0.05 $21,761,740, $1,449,176 0.07 Facilities/Space Priorities Maintain Adequate Maintenance and Repair Budget Facilitv Replacement Prioritv List as of Mav pI 1) Replace Animal Control and K-9 Unit 2) Replace City Wide Programs Office 3) Relocate Resort Maintenance Compound away from 14th Street 4) Construct Fire Equipment Garage at Leroy Drive 5) Replace Euclid Yard Buildings 6) Replace EMS Administration Building/Treasurer's Beach Branch 7) Replace Thalia Fire Station 8) Construct Special Ops/Evidence/Forensics Complex at Leroy Drive 9) Replace P&R Landscape Services/ Parks Construction Facilities 10) Replace Chesapeake Beach Fire Station 11) Replace Police 4th Precinct 12) Replace PW/Highways Modular Buildings at Landstown 13) Replace Blackwater Fire Station Mr. Hansen advised the ability to provide the City Attorney one consolidated area would require the City to relocate all Mr. Lilley's offices into Building 18A. Andrew Friedman, Housing and Neighborhood Preservation has outgrown this space. However, if the City Attorney were to relocate, adequate space must befoundfor Housing and Neighborhood Preservation. Mr. Hansen displayed photographs depicting the conditions of the Facility Replacement Priority List items. May 1, 2007 - 10- CITY COUNCIL WORKSHOP RESOURCE MANAGEMENT PLAN (FY 2007-2008 Operating and Capital Budget) ITEM # 56347 (Continued) Facilities/Space (Continued) Yet to be done... LEROY DRIVE PLAN HUMAN SERVICES Cost of Leasing... JUDICIAL CENTER: Juvenile Court General District Court Commonwealth Attorney CITY CLERK'S OFFICE MUNICPAL CENTER: Building 3 Expanded Parking SHERIFF'S MINIMUM SECURITY FA CILTY RECORDS MANAGEMENT FACILITY SECURITY ENHANCEMENTS (LUNCH 12:15 P.M. - 1:09 P.M. May 1, 2007 - 11 - CITY COUNCIL WORKSHOP RESOURCE MANAGEMENT PLAN (FY 2007-2008 Operating and Capital Budget) ITEM # 56347 (Continued) 1:09 P.M. Virginia Beach Court Service Unit Bruce Bright, Director - Court Services Unit (Juvenile Probation Department), advised his request to become a City Department or, at a minimum, to receive a salary supplement for the State employees from the City. The proposals which have been submitted in detail to the budget Office and City Manager outline the cost of supplementing salaries or taking the Department back as a City agency which the Court Service Unit was from 1962 until 1988 (when the City made the decision to turn the Department over to State control). Currently, the City is responsible for providing office space, furniture, telephones and the cost of less secure detention facilities. The City already provides funding in the amount of $2,265,000 to cover these services. The State provides $2,425,000 for salaries, equipment, office supplies and maintenance. It is projected that the City Budget will total $2,354,000 and the State budget $3,056,000 for FY 2008. This is a combined City and State budget of $5,410,000 for FY 2008 and projected 5,638,000 FY 2009. The strong point to this proposal is the Virginia State Code requires 50% reimbursement from the State to the City for salary and travel expenses totaling $1,655,000. Total City and State Budget 50% Reimbursement Net Cost to City of Virginia Beach FY 2008 City Budget Additional City Cost $5,410,000 $1,655,000 $3,755,000 $2,354,000 $1,401,000 An additional $1,401,000 would be required in FY 2008 and an increase of $57,000 in FY 2009, would total $1,458,000 to bring the Court Services Unit back under City control. Another proposal is simply from the City to provide a supplement to State employees which would make their salaries comparable with similar positions in Human Services. In 1988, the Court Services Unit salaries were in the same band as Social Workers in the Department of Social Services. Today the difference in a Social Worker salary and a Probation Counselor is approximately 145%. The differential in Supervisory, Clerical and Administrative staff salaries range from 15% to 60% depending on length of service. The Supplement Proposal reflected a straight 18% differential which was far less than some positions required but brought most positions on par with comparable Human Service positions. Supplementing salaries would require additional funding of $461, 000 in FY 2008 and $475,000 in FY 2009. This proposal would certainly be less costly for the City and bring salaries to a competitive level, but would leave Court Services still under State control. Sheila Hightower, Senior Probation Officer, advised the staff turnover has been 82% over the last few years. Ms. Hightower has been employed in this capacity for thirty-two (32) years. Six (6) of those years were in Northern Virginia. The population with which she currently deals is "night and day" from the past. Previously, she was involved with children who did not behave in school, but today she had a child arraigned in Court involving guns and drugs. Yesterday, a thirteen year old had "pulled" two armed robberies. The safety of the citizens could be affected relative the formation of "gangs ". The Court Services Unit requires experienced personnel. May 1, 2007 - 12 - CITY COUNCIL WORKSHOP RESOURCE MANAGEMENT PLAN (FY 2007-2008 Operating and Capital Budget) ITEM # 56347 (Continued) 1:09 P.M. Virginia Beach Court Service Unit Mr. Bright advised the average salary is $38,000. Last Fall, an increase for new employees resulted in the new employees making the same salary as employees offive (5) and six (6) years tenure. Compression has resulted. Councilman Diezel noted Dr. Jenkins has advised this Court Services Unit could blend within the Human Service Agency. Mrs. Hightower advised working closely with these agencies. Information shall be provided relative possible savings to offset expenses. Council Lady Wilson suggested a Resolution be formulated to the General Assembly concerning the Virginia Beach Court Services Unit and that the State's assistance is necessary. The City Attorney shall confer with Mr. Bright and Mrs. Hightower. This Resolution would be SCHEDULED for the City Council Session of May 8, 2008. May 1, 2007 - 13 - CITY COUNCIL WORKSHOP RESOURCE MANAGEMENT PLAN (FY 2007-2008 Operating and Capital Budget) 1:48 P.M ITEM # 56347 (Continued) Reconciliation of the FY 2007-2008 Operating and Capital Budget shall be SCHEDULED for the City Council Session of May 8, 2007. Council Lady McClanan requested a total listing of the City employees by department and requested applicable overtime also be provided. Councilman DeSteph advised Ms. Whitesell formulated this information for the Employee Benefits Review Task Force as it should be readily available. Catheryn Whitesell, Director of Management Services, distributed a listing entitled Fiscal Year 2007- 2008 Amended Personnel Survey encompassing 6,970 City positions (includes part-time). This listing included Constitutional Offices, City Council Members and School Positions. Said information is hereby made a part of the record. Councilman DeSteph referenced the analysis of overtime; the majority entailed Public Safety followed by Public Works. Councilman DeSteph had suggested any position unfilled (with the exception of Public Safety) on the date of the Adoption of the FY 2007-2008 Operating and Capital Budget, should remain unfunded and for these positions which arose during the year, the City would wait ninety (90) days prior to filling the vacancy (with the exception of Public Safety). This would equate to approximately $5.76- MILLION in savings. Councilman Wood believes this concept should be discussed with the affected Department Directors concerning the impact on their service delivery to the citizens. Relative the increase in Human Services personnel (approximately 34), Ms. Whitesell advised these are almost all State Medicaid positions, associated with the new BizNet facility.. Vice Mayor Jones expressed concern re Overtime, Policy 2.02 was distributed Section 4.4 was referenced: Annual leave, sick leave, military training leave, holidays, flexible holiday, funeral leave, standby duty hours, birthday leave, jury leave, court leave, compensatory leave, injury leave and designated Condition I or Condition II Emergency and Inclement Weather periods for ALPHA and BETA employees shall be included in computation of overtime. The City Manager advised changing this section could save approximately $l-MILLION per year. Catheryn Whitesell advised the total budget is $8.9-MILION in overtime. This might be justification to hire additional personnel to provide better service delivery, as opposed to just cutting. May 1, 2007 - 14- CITY COUNCIL WORKSHOP RESOURCE MANAGEMENT PLAN (FY 2007-2008 Operating and Capital Budget) ITEM # 56347 (Continued) Catheryn Whitesell attempted to RECONCILE Capital Improvement Projects, for which City Council supports finding: Transportation Historic Court Restoration Constitution Dive Backwater Fire Station (The funds returned by Sandler Center for the Performing Arts, can be earmarked for transportation) Council Lady McClanan expressed concern and advised she must review. Vice Mayor Jones advised the City Council Members will present their lists during the Reconciliation Workshop on May 8, 2007. Council Lady Henley advised concerning the real estate assessment increase, trash collection fees might provide necessary revenue and provide a better alternative.. May 1, 2007 - 15 - CITY COUNCIL COMMENTS 3:00 P.M. ITEM # 56348 Mayor Oberndorf expressed appreciation to Mac Rawls, Chair - Virginia Beach/Jamestown 2007 Steering Committee, and Charles Meyer, Chief Operating Officer, for his dedicated service concerning the 2007 Celebration. Mayor Oberndorf lauded Council Lady Henley for her extraordinary and impressive coordination of the Boardwalk History Festival, a festival of music, food and history of the various cultures, groups and institutions that thrive in Virginia Beach (approximately 162 exhibitors participated). Citizens have expressed a strong desire that this event to be repeated annually.) This event proved to be an enormous success and was held on Saturday, April 28, 2007, at the Boardwalk.. Council Lady Henley advised Bobby Mellati - Beach Events, provided the tents at no charge to the group. The Neptune Festival kept the event coordinated. Captain John Percy wrote in his diary on April 28, 1607, "discovering strawberries four times bigger and better than anything available in England. " CBN held a dinner party and introduced their film about the actual sailing of the English. On Thursday, April 26, 2007, Mayor Oberndorf attended the Reenactment of the First Landing, First Landing State Park. Replicas of the Discovery, Godspeed and Susan Constant anchoring off First Landing State Park with a landing party taking a shallop to shore were breathtaking. The Erection of the Cross at Cape Henry, April 29, 2007, was impressive. Councilman DeSteph referenced the Historic Villages at Cape Henry Preview, April 26,2007, 11:00 A.M to 6:00 P.M Sara Evans, Country Music Star, performed. This was a premier event. There was a sneak preview of the play "1607: First Landing" performed on an amazing outdoor stages, dramatic music and dance performance by the Native American Dance Theatre, special music and re- enactors among the nature trials, native American village and Colonial outpost as well as a feast fit for a king. ITEM # 56349 Two months ago, Council Members Dyer and DeSteph were invited to attend the Mayor's Task Force re Prevention of Gangs in Chesapeake, Virginia. Councilman Dyer will be attending this Task Force Meeting tonight, May 1, 2007, at Oscar Smith High School. ITEM # 56350 Council Lady McClanan advised the Green Run Homes Association has offered to host the Citywide Town Meeting on November 20, 2007. May 1, 2007 - 16 - CITY COUNCIL LIAISON REPORTS 3:10 P.M. ITEM # 56351 Council Member Villanueva, Liaison - Skate Park, again advised one of the best investments made is the Skate Parks (Woodstock - Providence Road) which is being utilized tremendously and positive comments have been received. ITEM # 56352 Councilman DeSteph, Liaison and Chair - Employee Benefits Review Task Force, distributed his report, which is hereby made a part of the record. The Task Force began its work by reviewing the implications of GASB 45 and Retiree Health Care Coverage. At this point, the Task Force has reached the following recommendations: GASB 45 Liability: Take steps to reduce the GASB 45 liability and, to the extent practical, fund the unfunded liability. Retiree Health Care Coverage: Preserve health care coverage to current andfuture retirees Retirees with 25 years or more of service or five or more years of service and retired or will retire on a work-related disability Provide access to the health insurance plans offered to active employees and any additional plan(s) specifically designedfor retirees. Allow enrolled dependents of current retirees or of employees retiring before January 1, 2008, to continue in the program; however, retirees may not add dependents on or after January 1, 2008 Future Retirees: Allow dependents of employees who retire on or after January 1, 2008, to have access to dependent coverage with the retiree paying the full projected actuarial cost of the coverage for such dependents, thereby eliminating an "implicit" subsidy that would otherwise be provided by the City for these dependents and reducing the GASB 45 Liability. Allow only dependents who are covered on a City-sponsored health insurance plan at the time of the City employee's retirement to participate as dependents in a City-sponsored health insurance plan once the employee retires; no dependents shall be added qfter the date of retirement, thereby preventing retirees from adversely affecting future rates by enrolling high-risk dependents May 1, 2007 - 17 - CITY COUNCIL LIAISON REPORTS ITEM # 56352 (Continued) Single Subscriber health Care Coverage All single-subscriber retirees and employees will be required to pay a percentage of the annual health care premium in order to receive health coverage. This will eliminate the provision offree health care to single subscribers. Initially, all single-subscribers should pay 5% toward their annual health care premium, and City Council should consider incremental percentage increases. This will reduce the GASB 45 liability and help offset its funding requirements by reducing the City's share of plan costs. ITEM # 56353 Councilman DeSteph, Liaison - Review and Allocation Committee (Community Organization Grant - COG), lauded Priscilla Beede on her diligent overseeing of this Committee. May 1, 2007 - 18 - AGE N DA REV I E W S E S S ION 3:15 P.M. ITEM # 56354 BY CONSENSUS, thefollowingshall compose the CONSENT AGENDA: K. ORDNANCES 1 Ordinance to A UTHORIZE the acquisition of a portion of property at the intersection of Potters Road, Lynnhaven Parkway and Lynnhaven Road South from THUMEL ASSOCIATES, L.c. and DIRECT the City Manager to EXCUTE an agreement with all documents pertaining thereto. DISTRiCT 5 - LYNNHAVEN 2. Ordinance to AUTHORIZE a Franchise to CAVALIER IPTV, LLC., re the construction, operation and maintenance of a Cable system within the City of Virginia Beach. 3. Ordinance to TRANSFER $3,900,000 within the FY 2006-07 School Board Operating Budget: a. $2,375,000 from Instruction to Operations and Maintenance b. $500,000 from Instruction to Transportation c. $825,000 from Instruction to Administration d. $200,000 from Instruction to the School Cafeteria Fund May 1, 2007 - 19- ITEM # 56355 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 of, 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 acquisition, of real property for public purpose, or of the disposition of publicly-held property, where discussion in an open meet6ing would adversely affect the bargaining position or negotiating strategy of the public body pursuant to Section 2.2-3711 (A)(3). Acquisition/ Disposition of Property: Interfacility Traffic Area APZ -1 Upon motion by Councilman Dyer, seconded by Councilman Wood, City Council voted to proceed into CLOSED SESSION (3:22 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: 3:22 P.M.. - 4:00 P.M.) May 1, 2007 - 20- CERTIFICATION OF CLOSED SESSION ITEM # 56356 Upon motion by Councilman Villanueva, seconded by Council Lady Wilson, City Council CERTIFIED THE CLOSED SESSION TO BE IN ACCORDANCE WITH THE MOTION TO RECESS. Only public business matters lawfully exempt from Open Meeting requirements by Virginia law were discussed in Closed Session to which this certification resolution applies. AND, Only such public business matters as were identified in the motion convening the Closed Session were heard, discussed or considered by Virginia Beach City Council. Voting: 10-0 Council Members Voting Aye: 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, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: John E. Uhrin May 1, 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 #56355, Page 19, 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. NO'ff, 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. R Hodges Fraser, MMC Ity Clerk May 1, 2007 - 21 - ITEM # 56357 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 of 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 Appointees: Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council voted to proceed into CLOSED SESSION (4:05 P.M.). Voting: 10-0 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, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: John E. Uhrin (Closed Session: 4:05 P.M - 5: 15 P.M). (Dinner: 5: 15 P.M - 6:00 P.M) May 1, 2007 - 22- FO RMAL SESSION VIRGINIA BEACH CITY COUNCIL May 1, 2007 6:00 P.M. Mayor Meyera E. Oberndorf called to order the FORMAL SESSION of the VIRGINIA BEACH CITY COUNCIL in the Council Chamber, City Hall Building, on Tuesday, May 1,2007, at 6:00 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, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Absent: Robert M Dyer [Attending Gang Task Force Meeting] INVOCATION: Louis R. Jones Vice Mayor PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA Vice Mayor Jones DISCLOSED, for many years, he served on the Board of Directors of Resource Bank. Three (3) years ago, Fulton Financial Corporation ("Fulton Financial") purchased Resource Bank. On March 31, 2007, Vice Mayor Jones retired from the Board of Directors. Although, he is no longer a Board Member, he owns stock in Fulton Financial, and that stock ownership causes him to have a "personal interest" in Fulton Financial. However, due to the size of Fulton Financial and the volume of transactions it handles in any given year, Fulton Financial, or any of the banks that are owned by Fulton Financial, may have an interest in numerous matters in which Vice Mayor Jones has no personal knowledge. In order to ensure his compliance with both the letter and the spirit of the State and Local Government Conflict of Interests Act, it is his practice to thoroughly review the agenda for each meeting of City Council for the purpose of identifying any matters in which he might have an actual or potential conflict. If, during his review, he identifies any matters, Vice Mayor Jones will prepare and file the appropriate disclosure letter to be recorded in the official records of City Council. Vice Mayor Jones regularly makes this disclosure. Vice Mayor Jones' letter of April 10, 2007, is hereby made a part of the record. 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. May 1, 2007 - 23 - FORMAL SESSION VIRGINIA BEACH CITY COUNCIL (Continued) 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. May 1, 2007 - 24- Item V-E. CERTIFICATION OF CLOSED SESSION ITEM # 56358 Upon motion by Councilman Uhrin, seconded by Councilman Wood, City Council CERTIFIED THE CLOSED SESSION TO BE IN ACCORDANCE WITH THE MOTION TO RECESS. Only public business matters lawfully exempt from Open Meeting requirements by Virginia law were discussed in Closed Session to which this certification resolution applies. AND, Only such public business matters as were identified in the motion convening the Closed Session were heard, discussed or considered by Virginia Beach City Council. Voting: 10-0 Council Members Voting Aye: 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, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M Dyer May 1, 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 #56357, 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. NOff, 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. ~~ Hodges Fraser, MMC City Clerk May 1, 2007 - 25 - Item V-F.1. MINUTES ITEM #56359 Upon motion by Council Lady Wilson, seconded by Councilman DeSteph, City Council APPROVED the Minutes of the PUBLIC HEARING of April 19, 2007 and INFORMAL and FORMAL SESSIONS of April 24, 2007. Voting: 10-0 Council Members Voting Aye: 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, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M Dyer May 1, 2007 - 26- Item V-G 1. ADOPT AGENDA FOR FORMAL SESSION ITEM 56360 BY CONSENSUS, City Council ADOPTED: AGENDA FOR THE FORMAL SESSION May 1, 2007 - 27- Item V-G.2. PRESENTATION ITEM #56361 Mayor Oberndorf recognized the following Boy Scout in attendance to fulfill requirements for his Communications and Citizenship badge. Troop 401 Joseph Lasari Mayor Oberndorf presented Joseph with a City Seal pin from the City of Virginia Beach. May 1, 2007 - 28 - Item V-.H.1. PRESENTATION ITEM #56362 Mayor Oberndorf DECLARED A PUBLIC HEARING: TAXI CAB REGULATION/RECIPROCITY ISSUES The following registered to speak: Richard "Rick" Dozier, 1301 Kingsway Drive, Phone; 422-3262, part owner of Beach Taxi and AA Beach Cab, spoke in SUP PORT of the regulations. Richard L. Yount, 3407 Norfeld Court, Phone: 237-1469, represented the Atlantic Coast Cab Company. The wording "public agency contracts" should be eliminated for the Virginia Beach Taxis. To insert reciprocating language is not beneficial to cabs in Virginia Beach. Judy Swystun, 6304 Sewells Point Road, Norfolk, Phone: 853-1255, represented Black and White Cabs and Noview Cabs, former President of Taxi Cab, Limousine and Para Transit Association, comprised of 1,000 members in thirteen (13) countries, as well as Past President of Virginia Taxi Cab Association. The largest users of the public agency contracts are the Logisticare (Medicaid trips), as well as "Safe ride home" programs. The Beach taxi's at one time had this Logisticare Contract and chose to eliminate it as the billing and cash flow issues are complex. Black and White Cabs and Norfolk Checker are willing to express SUPPORT to the Norfolk city officials re Virginia Beach cabs being able to contract in Norfolk. Stan Slone, Manager - Yellow Cab of Virginia Beach and Blue and White Taxi of Chesapeake, advised Yellow Cab and Blue and White did contract with Logisticare, but because of billing problems and not being paid for trips, cut the service. The reciprocity agreement should include verbiage if a cab company picks up in another city, that cab company would take that fair back to the respective City. The pulbic agency contract is too vague. Darrel W. Johnston, 1287 Holland Road, Suffolk, Virginia, Phone: 923-3720, President and Owner - All City Cabs, spoke in SUP PORT of a free market. Mr. Johnston is strongly OPPOSED to the Public Agency Contract. Mr. Johnson is OPPOSED to certain reciprocity language. There being nofurther speakers, Mayor OberndorfCLOSED THE PUBLIC HEARING: May 1, 2007 - 29- Item V-.H.2. PRESENTATION ITEM #56363 HAMPTON ROADS TRANSPORTATION AUTHORITY Robert Matthias, Assistant to the City Manager, advised House Bill 3202 goes into effect July First and the Hampton Roads Authority will then become effective. This Authority will: Include the Counties of Isle of Wight, James City, and York and the Cities of Chesapeake, Hampton, Newport News, Norfolk, Poquoson, Portsmouth, Suffolk, Virginia Beach and Williamsburg. The Counties of Accomack and Northampton shall be included in the Hampton Roads Transportation Authority (HRTA) when all bonds and other debt for the Chesapeake Bay Bridge Tunnel have been paid in full. Require at least seven (7) of the twelve counties' and cities' governing bodies to agree to the HRTA, which must result in at least afifty-one percent of the counties and cities total population. The localities must pass a duly adopted resolution stating its approval of such power of the HRTA no later than December 31,2007. If implemented, the HRTA generates approximately $168.5-million a year for regional transportation projects, with a potential increase of 9% annually, based on the State's 2009 estimates, thefollowingfigures are expected to be generated:. Fees Established Total Funds Generated Funds from City of ViT/linia Beach $10 automobile inspection fee $ 12.3-MlLLION $ 3.5-MILLION 5% tax on automobile repairs $ 18.9-MILLION $ 5-MlLLION Grantors tax of0.40~ per $100 of $ 49.1- MILLION $15.2-MILLION assessed value Motor vehicle rental tax of 2% $ 3.5-MILLION $ 627,000 One-time vehicle reKistration fee of 1% $ 41.2-MlLLION $13.2-MILLION Annual vehicle ref!istration fee of $1 0 $ 13.3-MILLION $ 3.7-MlLLION 2% retail tax on motor fuel sales $ 30.2-MlLLION $ 9.2-MlLLION TOTALS: $168.5-MILLION $50.4-MILLION Discretionary Fees Total Funds Generated Funds from City of Virflinia Beach Commercial real estate surcharge up to $ 20.3-MlLLION $ 5.5-MILLION 0.10~ Local vehicle reJ;!istration fees of $1 0 $ 6.7-MILLION $ 3.7-MlLLION Commercial and residential impact fees shall be determined. Fees collected would provide for the phased construction of the six (6) major transportation projects, which are included in the federally mandated 2030 Regional Transportation Plan: May 1, 2007 - 30 - HAMPTON ROADS TRANSPORTATION AUTHORITY ITEM # 56363 (Continued) First Phase Projects Route 460 Upgrade 1-64 Widening on the Peninsula 1-64 Widening on the Southside Downtown Tunnel/Midtown Tunnel/MLK Extension Southeastern Parkway/Dominion Boulevard/Route 17 1-664 Widening in Newport News 1-664 Widening on the Suothside 1-664 Monitor Merrimac Memorial Bridge Tunnel Widening Second Phase Projects 1-564 from 1-64 to the Intermodal Connector 1-564 Connector to the Monitor Merrimac Memorial Bridge Tunnel Craney Island Connector The Chesapeake Bay Bridge-Tunnel (bridges, tunnels, roadways, and relatedfaculties) shall become subject to the control of the HRT A when all bonds and other debt for the Chesapeake Bay Bridge Tunnel have been paid in full The HRTA may impose and collect tolls in amounts established by the HRTAfor the use of any new or improved highway, bridge, tunnel, or transportation facility. Any tolls imposed by the HRTA shall be collected by an electronic toll system that shall not impede the traffic flow of the facility or prohibit a toll facility from retaining means of non- automated toll collection in some lanes for the facility. The HRTA shall consist of the following members: The chief elected officer of each of the twelve (12) localities, or his designee, shall serve with voting privileges A member of the Commonwealth Transportation Board, appointed by the Governor, who resides in the region shall serve ex officio without a vote The Director of the Virginia Department of Rail and Public Transportation, or his designee, shall serve ex officio without a vote The Commonwealth Transportation Commissioner, or his designee, shall serve ex officio without a vote Two members of the Virginia House of Delegates, appointed by the Speaker of the House, who resides in the region shall serve ex officio without a vote One member of the Senate of Virginia, appointed by the Senate Committee on Rules, who resides in the region shall serve ex officio without a vote. Decisions of the HRTA shall require the affirmative vote of the majority of the voting members present, and voting members present must result in at least fifty-one percent of the total population of the counties and cities. May 1, 2007 - 31 - C IT Y MANA G E R 'S B R IE FIN G HAMPTON ROADS TRANSPORTATION AUTHORITY ITEM # 56363 (Continued) The staff of the Hampton Roads Planning District Commission (HRPDC) and the Virginia Department of Transportation (VDOT) will work cooperatively to assist in the proper formation and effective organization of the HRTA. Until the HRTA is fully established and functioning, the staff of the HRPDC will serve as its staff, and will provide the HRTA with office space and administrative support. The HRTA shall reimburse the HRPDC for the cost of such staff, office space and administrative support as appropriate. Charts entitled: Revenue Collection Estimates for the Hampton Roads Transportation Authority, Revenue Growth Rate Estimates from 1998-2006, Estimates of Population for Virginia and its Localities, Final 2005 and Provision 2006, Hampton Roads Transportation Authority Authorized Fees and Taxes, Vehicle Trip Ends by Jurisdiction, 2030 and Proposed Hampton Roads Transportation Authority Projects - lane miles to be constructed were distributed and are hereby made a part of the record. May 1, 2007 - 32 - Item V-H.2 ITEM # 56363 (Continued) Mayor Oberndorf INVITED PUBLIC COMMENT: HAMPTON ROADS TRANSPORTATION AUTHORITY (HRTA) The following registered to speak: Robert Goodman - President - Virginia Beach Vision, spoke in SUPPORT. Transportation has been studied longer and more in debt than any other issue Stephen Davis, 222 Central Park-Suite 1500, spoke in SUPPORT Tom Frantz, Co-Chair - Hampton Roads Partnership, 222 Central Park - Suite 1700, spoke in SUPPORT Sandy Linkous, represented the Virginia Beach Tax Payers Association and read a letter from John Moss, 5225 South Lake Road, in OPPOSITON requesting a REFERENDUM. Al Strazzullo, 3120 Sandpine Road, registered in OPPOSITION, he worked for the United States General Accounting Office during his professional career and has experience with Regional Authorities Dan Dickens, represented the Hampton Roads Partnership, advised their top priority is transportation and registered in SUPPORT. Bob Hedrick, requested the Resolution be DEFERRED to allow further public comments. John McMullen, 504 Ben Hogan Drive, spoke in OPPOSITION, advised Virginia Beach will be expending $30-BILLION. His only interest to this City is the Southeastern Parkway. Reid Greenmun, 2621 Sandpiper Road, requestedfurther public comment. House Bill 3202 contains sixty-three (63) pages. The report failed to include the cost of the daily tolls. Robert O'Connor, 204 52nd Street, represented the Citizens Action Coalition. Good governance means Dialogue with citizen, accountability and trust. Mr. 0 'Connor requested this item be DEFERRED to allow further comment Robert K. Dean, 1204 Shawn Drive, forty-six year resident of Virginia Beach. Mr. Dean spoke in OPPOSITION and advised this legislation would impose new taxes and fees of the already financially stressed families in the City John Fenter, 909 West Ferry Plantation Road, registered in OPPOSITION Problem with traffic is caused by water. There is no plan to address local traffic congestion. Warner Athey, 2161 Vista Circle, registered in OPPOSITION and requested the citizens have a REFERENDUM John P. Kuchta, Jr., 1132 Little Neck Road, Phone: 468-9020, registered in OPPOSITION. He is the owner of a small business and requested another layer of government not be established. Wally Erb, 150 Cayuga Road, Phone: 581-4287, registered in OPPOSITION Mr. Erb requested DEFERRAL to allow for further comment There being no further speakers, Mayor Oberndorf CLOSED THE PUBLIC COMMENT. May 1, 2007 - 33 - Item V.K. ORDINANCES ITEM #56364 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council APPROVED IN ONE MOTION Ordinances 1, 2 and 3 a/blc/d of the CONSENT AGENDA Voting: 9-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, 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: William R. "Bill" DeSteph and Robert M Dyer May 1, 2007 - 34- Item V.K.J. ORDINANCES ITEM #56365 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Ordinance to A UTHORIZE the acquisition of a portion of property at the intersection of Potters Road, Lynnhaven Parkway and Lynnhaven Road South from THUMEL ASSOCIATES, L.c. and DIRECT the City Manager to EXCUTE an agreement with all documents pertaining thereto. DISTRiCT 5 - LYNNHA VEN and DISTRiCT 6 - BEACH Voting: 9-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, 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: William R. "Bill" DeSteph and Robert M Dyer May 1,2007 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 48 49 50 51 52 AN ORDINANCE TO AUTHORIZE THE ACQUISITION OF AN APPROXIMATELY 1.4 ACRE SITE LOCATED AT THE CORNER OF POTTERS ROAD AND LYNNHAVEN PARKWAY IN THE CITY OF VIRGINIA BEACH AND AN APPROXIMATELY 1.58 ACRE SITE LOCATED AT THE CORNER OF LYNNHAVEN ROAD SOUTH AND LYNNHAVEN PARKWAY IN THE CITY OF VIRGINIA BEACH FOR $1,200,000.00 FROM THUMEL ASSOCIATES, L.C. WHEREAS, Thumel Associates, L.C. ("Thumel") owns a 1.41 acre parcel of real estate located at the corner of Potters Road and Lynnhaven Parkway in the City of Virginia Beach having a GPIN of 1497-52-1209 ("Parcel A"), and a 1.581 acre parcel of real estate located at the corner of Lynnhaven Road South and Lynnhaven Parkway in the City of Virginia Beach having a GPIN of 1497-41-6866("Parcel B") (Parcels A and B collectively referred to as the "Property"); WHEREAS, Thumel desires to sell the Property to the City of Virginia Beach (the "City"); WHEREAS, the City's Public Works Department has identified the Property as parcels to be considered for advance acquisition as part of the City's future roadway improvements, and has recommended that the Property be acquired for such purposes; WHEREAS, the City Council of the City Virginia (the "City Council") is of the acquisition of the Property would further improvement initiative; of Virginia Beach, opinion that the the City's roadway WHEREAS, Thumel and City staff have worked with the City Attorney to draft a Purchase Agreement that sets forth the responsibilities and obligations of the parties upon terms and conditions mutually agreeable to both parties; and WHEREAS, funding for this acquisition is available in the Various Site Acquisition CIP account (CIP 3-368). BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: 1. Property Virginia attached That the City Council authorizes the acquisition of the by purchase pursuant to 5 15.2-1800 of the Code of (1950), as amended, which Property is shown on the map hereto as Exhibit "A". 2. That the City Manager or his designee is authorized to execute on behalf of the City of Virginia Beach, a Purchase 53 54 55 56 57 58 59 60 61 62 63 64 Agreement for the Property, for the aggregate sum of $1,200,000.00 and in accordance with the Summary of Terms attached hereto as Exhibit "B". 3. That the City Manager or his designee is further authorized to execute all documents that may be necessary or appropriate in connection with the purchase of the Property, so long as such documents are acceptable to the City Manager and the City Attorney. the City of Virginia Beach, , 2007. Council of day of l\1ay Adopted by the Virginia, on the 1st CA10306 V:\ applications\citylawprod\cycom32\ Wpdocs\D025\P002\0003 21 00. DOC date: April 26, 2007 R-1 APPROVED AS TO CONTENT: APPROVED AS TO!.:_E~~~ SUFFICIENCY. _.~,;;;?r- 7 .// ,-,/ -----;:::.;:.:::- .-/ ,/ ~ c.~~ llc Works/Real Estate Exhibit A ;><: G) '6 ~. 3!-o Pl ~ Z::O ):- ;u ",- 0 () :!! -",-0 16" VI ~m :; 10 <O::Or- <ll :::l a. ~-iO III s: CJ1ma III " I}J(J)> ~ -l ::r ~O~ c: 3 !!!.. O"TlO lJ a <.O-iZ " <D ~ QoIs:: :::j ::r -"'C)> c: 3 ~S::-o !!!.. lJ ~m (3 " I r III ;::j. ~~ <ii' VI -'" - ;u I Z ~ en () (ii' (X) <ll ~ en 3 x en a. l nl-.!~ / ~()- CI) ~ ~ .. ~ ~ c:-< C. o 3 "tJ !t 0 1J "0 o CD 1J ;:+ CD '< ;:+ (j)' 1/1 o lJ Iii " III [ r:T '< :u ~ m ::J cp m ::J cp (Xl o ." 0 CD ~ m ::l (Q m ::l <? (J) c: -0 -0 o ex> ;:+ 0 (J) ~ 0 ~ m. 0' m CD c: CD t\) c: ~ ;><: 15 ..Q Pl" ~ )> AI o :!1 <D (fl / ,;: (Q <D ::l a. t\) $: t\) -0 ~ -i :::r c: 3 ~ lJ o -0 <D ~ ::::j -- :::r c 3 ~ lJ a -0 <ll ;:+ (ii' (fl AI ~ vi" CD 9- 3 x a. :u ~ In 8 (~Io i ~ :T;::O:::::S 01:'< C. o 3 <D 41 - 0 ""0 '0 .., <D o ;:+ -g '< .., .... <D' 1/'1 G) ::g"1J z;U C/r 0 ...Jt."1J ~m ~;Ur .-10 ~m() ~cn)>: I'VO::! O"TlO <'o-IZ QoIs: ...Jt.C)> ~S:"1J ""'-Jm . r ~~ ...Jt. - 'Z ~() m' m EXHIBIT B SUMMARY OF TERMS AN ORDINANCE TO AUTHORIZE THE ACQUISITION OF AN APPROXIMA TEL Y 1.4 ACRE SITE LOCATED AT THE CORNER OF POTTERS ROAD AND L YNNHA VEN PARKWAY IN THE CITY OF VIRGINIA BEACH AND AN APPROXIMATELY 1.58 ACRE SITE LOCATED AT THE CORNER OF LYNN HAVEN ROAD SOUTH AND LYNN HAVEN PARKWAY IN THE CITY OF VIRGINIA BEACH FOR $1,200,000.00 FROM THUMEL ASSOCIATES, L.C. OWNER: Thumel Associates, L.C. BUYER: City of Virginia Beach SALE PRICE: $1,200,000.00 PROPERTY DESCRIPTION: Parcel A GPIN 1497-52-1209 1.4 acres +/- Comer of Potters Road and Lynnhaven Parkway Parcel B GPIN 1497-41-6866 1.58 acres +/- Corner of Lynnhaven Road South and Lynnhaven Parkway SETTLEMENT DATE: On or before June 1,2007. SPECIAL TERMS AND CONDITIONS: · Closing must occur on or before June 1,2007 or Thumel Associates, L.C. will terminate its agreement to sell to the City. V: Iapplications\citylawprod\cycom3 2\ WpdocsID025\P002\000321 02. DOC - 35 - Item V.K.2. ORDINANCES ITEM #56366 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Ordinance to A UTHORIZE a Franchise to CA VALIER IPTV, LLC., re the construction, operation and maintenance of a Cable system within the City of Virginia Beach Voting: 9-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, 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: William R. "Bill" DeSteph and Robert M Dyer May 1, 2007 Summary of Terms of Cavalier IPTV, LLC Franchise TERM GROSS REVENUE AREA COVEREDI BUILD OUT NON-EXCLUSIVE FRANCHISE EMERGENCY ALERT SYSTEM ("EAS") INTERCONNECTION WITH OTHER CARRIERS FOR PEG CARRIAGE SERVICE TO PUBLIC FACILITIES PUBLIC, EDUCATIONAL, and GOVERNMENTAL CHANNELS ("PEG") INSTITUTIONAL NETWORK ("1- NET" CONSTRUCTION REPORTING 1 0 years Subscriber Revenue only Where technically feasible, service offered to all occupied residential dwelling units in Cavalier's designated initial service area within three years. Initial service includes northern portion of the City. Service must be offered to 65% of residential dwelling units in area where Cavalier has facilities within seven years, and 80% of residential dwelling units in area where Cavalier has facilities within ten years, if required by ordinance. Service to be extended when density equals or exceeds thirty houses per mile. Franchise non-exclusive. Terms no more onerous (unreasonably disadvantage or prejudice) than franchises adopted for existing operators. Cavalier shall comply with federal emergency alert standards-47 CFR 11. Upon request of City, Cavalier shall allow other cable operators to interconnect, and may require other cable operators to pay Cavalier for costs of interconnection. Because Cavalier's service is an IPTV service that is DSL-based and delivered over copper loops, Cavalier will, in lieu of providing service drops, pay a 1.5% gross revenue fee to the City. Three analog PEG channels; up to four PEG digital channels. No I-Net. Cavalier to comply with construction requirements of local, state, and federal laws. Annual report to include: financial statement; full schedule of rates, fees and charges, including services begun or discontinued; copy of subscriber agreement; summary of complaints; current copy of subscriber service agreement; quarterly report; upon request by City, updated maps of areas within the City where cable service is available to subscribers. Summary of Terms of Cavalier IPTV, LLC Franchise RENEGOTIA TION In accordance with applicable federal, state, and local laws. Telephone access available 24/7. Local customer service and bill payment location to be established in City once Cavalier has 13,000 subscribers. City may regulate rates for basic tier only, pursuant to 47 C.F.R. Part 76. CONSUMER PROTECTION RA TE CHANGES FRANCHISE FEE City no longer authorized to collect franchise fees. Rather, Cavalier will remit a sales and use tax in the amount of 5% of annual gross revenue to the Commonwealth, which will then be paid to City. City may audit Cavalier. If audit indicates 3% or more underpayment by Cavalier, Cavalier will bear the Cit 's reasonable expenses. None AUDIT PERFORMANCE BOND LETTER OF CREDIT $50,000 RENEWAL Cavalier may not abandon its cable system without giving three (3) months written notice to City. Cavalier must compensate City for damages resulting from the abandonment. City may recove from Cavalier reasonable cost of removal of the system. Transfers subject to applicable local, state, and federal laws and re ulations. Performed in accordance with applicable federal, state, and local laws and re s. ABANDONMENT TRANSFER CITY OF VIRGINIA BEACH CABLE TELEVISION FRANCHISE ORDINANCE FOR CAVALIER IP TV, LLC T ABLE OF CONTENTS STATEMENT OF INTENT AND PURPOSE ............................................................................1 SHORT TITLE ........ ....... ...... ...... ............... ............... ....... ................. ...... .... ...1 DEFINITIONS ..............................................................................................1 GRANT OF AUTHORITY AND GENERAL PROVISIONS...................................................5 DESIGN PROVISIONS ............ ............. ................... ......... ................... ......... ........ .... ........ ........... 7 SERVICE PRO VI SI 0 N S ... ............ .......... ..... .... .............. ...... ...... ........................................ ....... ...9 CON S TR U CTI 0 N PRO VISION S ... ............. ................ ............... ......... ................................... ..12 OPERA TI 0 NAND REPO R TIN G PRO VISI 0 NS...................................................................15 CO NSUMER PROTECTI ON PRO VISI ON .............................................................................16 GENERAL FINANCIAL AND INSURANCE PROVISIONS................................................18 FORECLOSURE, RECEIVERSHIP AND ABANDONMENT ..............................................23 REMOVAL, TRANSFER AND PURCHASE ..........................................................................24 RI G HTS OF IND IVID U ALS PROTECTED ............................................................................24 MISCELLANEOUS PROVISIONS.............. ............ ........... ...................... ............ ................ ....25 EFFECTIVE DATE AND TIME OF ACCEPTANCE ............................................................27 EXHIBIT A TECHNICAL STANDARDS EXHIBIT B SALES AND USE TAX QUARTERLY REPORT EXHIBIT C CUSTOMER SERVICE STANDARDS EXHIBIT D INITIAL SERVICE AREA ORDINANCE NO. AN ORDINANCE GRANTING A FRANCHISE TO CA V ALlER IPTV, LLC TO CONSTRUCT, OPERATE AND MAINTAIN A CABLE SYSTEM IN THE CITY OF VIRGINIA BEACH, VIRGINIA; SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF THE FRANCHISE; PROVIDING FOR REGULATION AND USE OF THE SYSTEM; AND PRESCRIBING PENAL TIES FOR VIOLATION OF THE PROVISIONS HEREIN. PREAMBLE The City of Virginia Beach, Virginia does ordain that it is in the public interest to permit the use of public rights-of-way and easements for the construction, maintenance, and operation of a Cable System under the terms of this Franchise; said public purpose being specifically the enhancement of communications for the City. SECTION 1. STATEMENT OF INTENT AND PURPOSE. City intends, by the adoption of this Franchise, to bring about the development and operation of a Cable System. This development can contribute significantly to the communications needs and desires of many individuals, associations and institutions. SECTION 2. SHORT TITLE. The Franchise granted pursuant to this ordinance shall be known and cited as the "City of Virginia Beach Cable Television Franchise Ordinance for Cavalier IPTV, LLC." Within this document it may also be referred to as "this Franchise" or "the Franchise." SECTION 3. DEFINITIONS. For the purpose of this Franchise, the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number and words in the singular number include the plural number. The words "shall" and "will" are mandatory and "may" is permissive. Words not defined shall be given their common and ordinary meaning. 3.01 "Affiliate" when used in relation to any Person, means another who owns or controls, is owned or controlled by, or is under common ownership or control with, such Person. 3.02 "Basic Cable Service" means any Service tier which includes the lawful retransmission of local television broadcast signals and any public, educational, and governmental access programming required by the Franchise to be carried on the basic tier. Basic Cable Service as defined herein shall not be inconsistent with 47 U.S.C. S 543(b)(7). Cavalier does not concede that it is providing "cable service" or that its Internet protocol television service is a "cable service" under 47 U.S.C. S522 or other applicable law. 3.03 "Cable Service" or "Service" means (A) the one-way transmission to Subscribers of (i) Video Programming or (ii) Other Programming Service, and (B) Subscriber interaction, if any, which is required for the selection or use of such Video Programming or similar Other Programming Service. Cable Service as defined herein shall not be inconsistent with the definition set forth in 47 U.S.c. S 522(6). Cavalier does not concede that it is providing 1 "cable service" or that its Internet protocol television service is a "cable service" under 47 V.S.C. 9522 or other applicable law. 3.04 "Cable System" or "System" means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide Cable Service which includes Video Programming and which is provided to multiple Subscribers within a community, but such term does not include: A. a facility that serves only to retransmit the television signals of one (1) or more television broadcast stations; B. a facility that serves Subscribers without using any public Right-of-Way; C. a facility of common carrier which is subject, in whole or in part, to the provisions of 47 U.S.C. 9201 et seq., except that such facility shall be considered a Cable System (other than for purposes of 47 U.S.C. 9541(c)) to the extent such facility is used in the transmission of Video Programming directly to Subscribers, unless the extent of such use is solely to provide interactive on-demand services; D. an open video system that complies with 47 U.S.C. 9 573; or E. any facilities of any electric utility used solely for operating its electric utility systems. Cavalier does not concede that it is operating a "cable system" or that its Internet protocol television service is a "cable system" under 47 U.S.C. 9522 or other applicable law. 3.05 "Channe( means a portion ofthe electromagnetic frequency spectrum which is used in a Cable System and which is capable of delivering a television Channel as defined by the FCC. 3.06 "City" means the City of Virginia Beach, Virginia, a municipal corporation of the Commonwealth of Virginia, its officers, employees, agents and assigns. 3.07 "City Council" means the governing body ofthe City of Virginia Beach, Virginia. 3.08 "Commercial Entity" means any association, firm, corporation, partnership or other legally-recognized entity whether for profit or not for profit, located in the City. 3.09 "Complaint" means any correspondence (including letters, e-mail messages, faxes or complaints forwarded by the City in any means, and telephone calls elevated to management for resolution) sent by Subscriber to City or Cavalier alleging or asserting signal interruption, poor picture quality, dissatisfaction over programming content, dissatisfaction over business practices, or dissatisfaction over construction or maintenance of the System. It shall not include any expression of dissatisfaction with any action of Cavalier which is authorized by this Franchise, or applicable state or federal law. The term "Complaint" shall not include an inquiry which is immediately answered by Cavalier to the apparent satisfaction of the complaining party. 2 3.10 "Converter" means an electronic device which converts signals to a frequency not susceptible to interference within the television receiver of a Subscriber and by which an appropriate Channel selector also permits a Subscriber to view all Basic Cable Service signals delivered at designated Converter dial locations. 3.11 "Drop" means the cable that connects the Network Interface Device on the Subscriber's residence or institution to the nearest distribution cable of the System. 3.12 "EG" means educational and governmental. 3.13 "FCC" means the Federal Communications Commission or a designated representative. 3.14 "Franchise" or "Cable Franchise" means the franchise granted by this ordinance and the regulatory and contractual relationship established hereby. 3.15 "Governmental Entity" means any federal, state or local political body or governing body, acting in its governmental capacity. 3.16 "Cavalier" means Cavalier IP TV LLC, its agents, employees, lawful successors, transferees or assignees. 3.17 "Gross Revenues" means all revenue, as determined in accordance with generally accepted accounting principles, that is actually received by the cable operator and derived from the operation of the cable system to provide cable services in the franchise area; however, in an ordinance cable franchise "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 the cable operator 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 taxes 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 the cable operator to provide cable service; and (viii) revenue derived from services classified as noncable services under federal law, including, without limitation, revenue derived from telecommunications services and information services, and any other revenues attributed by the cable operator to noncable services in accordance with rules, regulations, standards, or orders of the Federal Communications Commission. 3.18 "Initial Service Area" means the area identified in Exhibit D. 3.19 "Installation" means the act of connecting the Cable System from copper distribution cable to the point of connection including Standard Installations and custom Installations with the Subscriber Converter or other terminal equipment. 3 3.20 "Lockout Device" means an optional way to inhibit the viewing of a certain program, certain Channel, or certain Channels provided by way of the Cable System. 3.21 "Noncable Service" means all service offered over the System other than the Cable Service. 3.22 "Normal Business Hours" means those hours during which most similar businesses in City are open to serve customers. In all cases, "Normal Business Hours" must include some evening hours, at least one (1) night per week and/or some weekend hours. 3.23 "Normal Operating Conditions" means those Service conditions which are within the control of Cavalier. Those conditions which are not within the control of Cavalier 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 Cavalier include, but are not limited to, special promotions, pay-per- view events, rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the Cable System. 3.24 "Other Programming Service" means information that a cable operator makes available to all Subscribers generally. 3.25 "Pay Television" means the delivery over the System of pay- per-channel or pay-per- program audio-visual signals to Subscribers for a fee or charge, in addition to the charge for Basic Cable Service or Other Programming Services. 3.26 "PEG" means public, educational and governmental. 3.27 "Person" means any individual residing in the City. 3.28 "Public Property" means any real property, other than a Street, owned or leased by the City. 3.29 "Public Rights-of Way" means the surface, the airspace above the surface and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, or drive, including rights-of-way, and any temporary or permanent fixtures or improvements located thereon, now or hereafter held by the Locality, which shall entitle Cavalier to the use thereof for the purpose of installing and maintaining Cavalier's System. 3.30 "Service Area" means the geographic areas ofthe City where video service is Technically Feasible. 3.31 "Service Interruption" means the loss of picture or sound on one (1) or more Cable Channels. 3.32 "Service Outlet" means the connection at the Subscriber terminal located at a point designated by the Subscriber necessary to provide Service to the Subscriber. A dwelling or other building within which a Subscriber receives Service may have one (1) Service Outlet or multiple Service Outlets. 4 3.33 "Standard Installation" means any residential, commercial or government installation by which cable service can be delivered over existing copper, twisted-pair wires leased from the incumbent local exchange carrier, as unbundled network elements in Cavalier's collocation sites in central offices designated as Density Cell One by the Virginia State Corporation Commission, without causing new equipment, facilities, or outside plant to be built or added, and without having existing equipment, facilities, or outside plant re- engineered or modified, and with twisted-pair wires able to support Internet protocol (IP) download speeds of 10 Megabits per second (Mbps) and IP upload speeds of 1 Mbps utilizing the digital subscriber line (DSL) technology utilized by Cavalier, or for Cavalier constructed cable plant, any residential, commercial or government installation which can be completed using a Drop of one hundred and fifty(150) feet or less. 3.34 "Subscriber" means any Person, Commercial Entity or Governmental Entity within the City who receives service provided by Cavalier by means of the System. In the case of multiple office buildings or multiple dwelling units, the "Subscriber" means the lessee, tenant or occupant not the building owner, except in cases where Cavalier and the building owner have entered into a legally permissible bulk-billed arrangement. 3.35 "Two-Way System" means a System that can pass video, voice, and/or data signals in both directions simultaneously. 3.36 "Video Programming" means programming provided by, or generally considered comparable to programming provided by, a television broadcast station. SECTION 4. GRANT OF AUTHORITY AND GENERAL PROVISIONS 4.0 I Grant of Franchise. This Franchise is granted pursuant to the terms and conditions contained herein. Failure of Cavalier to provide a System as described herein, or meet the obligations and comply with all provisions herein, shall be deemed a violation of this Franchise. 4.02 Criteria of Selection. Cavalier'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 Cavalier was afforded reasonable notice and a reasonable opportunity to be heard. 4.03 Authority for Use of Streets. A. For the purpose of constructing, operating, and maintaining a System in the City, Cavalier may erect, install, construct, repair, replace, relocate, reconstruct, remove and retain in, on, over, under, upon, across and along the Streets within the City such lines, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary and appurtenant to the operation of the System, provided that all applicable permits are applied for and granted, all fees paid and all other City codes and ordinances are otherwise complied with. B. With the exception of Drop construction performed in a generally perpendicular angle to a Street, Cavalier shall, prior to any construction of the System, file 5 plans with the City. City shall, in a timely fashion, approve or disapprove such plans in writing, which approval shall not to be unreasonably withheld. C. Cavalier shall use its best efforts to construct and maintain the System so as not to interfere with other uses of Streets. Whenever feasible Cavalier shall make use of existing poles and other facilities available to Cavalier. Except in an emergency, Cavalier shall use its best efforts to notify residents affected by proposed work prior to commencement of that work. D. Notwithstanding the above grant to use the Streets, no Street shall be used by Cavalier if City, in its reasonable opinion, determines that such use is inconsistent with the terms, conditions or provisions by which such Street was created or dedicated, or is presently used. 4.04 Franchise Term. The effective date of this Franchise shall be as set forth in Section 15.01, and the Franchise shall expire ten (10) years from such effective date, unless renewed, revoked or terminated sooner as herein provided. 4.05 Area Covered. This Franchise is granted for the territorial boundary of the City which shall include any new territory which shall become part of the City ("Service Area"). Cavalier shall provide Cable Service to any Person, Commercial Entity and Governmental Entity requesting Service within the City according to the conditions, limitations and schedules set forth herein. If any annexed area is served by another cable operator at the time of annexation, Cavalier shall not be obligated to provide Service to that area. The City affirms that Cavalier's use of a leased last-mile network to provide IPTV over DSL technology limits the area actually served by Cavalier, and that Cavalier is under no obligation to provide or extend its service area beyond where it is technically feasible. However, nothing in this Franchise shall be construed to limit or prevent Cavalier from extending its service area by constructing or using additional facilities, equipment, or plant to provide the Cable Service. Cavalier also shall not be required to make the Service available: (a) for periods offorce majeure; (b) for periods of delay caused by the City; (c) for periods of delay resulting from Cavalier'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 Cavalier cannot access under industry standard terms and conditions after good faith negotiation; (f) in developments or buildings that Cavalier is unable to provide the Service for technical reasons or that require facilities that are not available or cannot be deployed on a commercially reasonable basis; (g) in areas where the average occupied residential household density is less than thirty (30) occupied residential dwelling units per mile as measured in strand footage from the nearest technically feasible point on Cavalier's active system; and (h) when Cavalier's prior service, payment, or theft of service history with a Subscriber or potential Subscriber has been unfavorable. Subject to the limitations stated above, Cavalier shall make Cable Service available to: (i) all of the occupied residential dwelling units in Cavalier's Initial Service Area (as identified in Exhibit D) within three years ofthe date of the grant of the Franchise, (ii) 65% of the residential dwelling units in the area in the City in which Cavalier has facilities within seven years of the date of the grant of the Franchise, and (iii) if required, 80% of the residential dwelling units in the area in the City in which Cavalier has facilities, within ten years of the date of the grant of the Franchise. Cavalier will provide written notice to the City by filing a 6 certificate at its third and seventh, and if applicable, tenth, anniversary dates certifying its compliance with the foregoing service requirements. 4.06 Police Powers. Cavalier's rights are subject to the police powers of City to adopt and enforce ordinances of general applicability necessary to protect and preserve the health, safety and welfare of the public. Cavalier shall comply with all applicable general laws and ordinances enacted by City pursuant to those powers. 4.07 Written Notice. All notices, reports, or demands required to be given in writing under this Franchise shall be deemed to be given when delivered personally to any officer of Cavalier or City's Manager and City Attorney or forty-eight (48) hours after it is deposited in the United States mail in a sealed envelope, with registered or certified mail postage prepaid thereon, or sent by overnight delivery service, addressed to the party to whom notice is being given, as follows: If to City: City of Virginia Beach Office of the City Manager Municipal Center Virginia Beach, VA 23456 If to Cavalier: Cavalier IP TV, LLC 2134 West Laburnum Ave. Richmond, V A 23227 Attn: General Manager With a courtesy copy (not sufficient to provide notice) to: Cavalier IP TV, LLC 2134 West Laburnum Ave. Richmond, VA 23227 Attn: General Counsel Such addresses may be changed by either party upon notice to the other party given as provided in this section. 4.08 Franchise Non-Exclusive. The Franchise and the right it grants to use and occupy the Public Rights-of-Way shall not be exclusive, and the City reserves the right to grant other franchises for similar uses or for other uses of the Public Rights-of- Way, or any portions thereof, to any other person, or to make any such use itself, at any time, with or without a franchise. SECTION 5. DESIGN PROVISIONS. 5.01 System Design. Cavalier shall, upon acceptance ofthis Franchise as defined herein, immediately undertake all necessary steps to construct, operate and maintain a System that meets the requirements contained herein. 5.02 Two-Way System. Cavalier shall provide a Two-Way System. 5.03 Future System Modifications. 7 A. City and Cavalier recognize that Cavalier's System is operated as part of Cavalier's greater Hampton Roads regional organization. To assure that Cavalier's Cable System in the City maintains the same capabilities as other systems operated by Cavalier in the Hampton Roads region, Cavalier agrees that when one (1) or more of Cavalier's Cable Systems in Hampton Roads obtains a capability with respect to any Cable Service that exceeds that provided by Cavalier in the City, the City may require Cavalier to provide the same capability on its System in the City. Cavalier shall complete any necessary modification of its System within twelve (12) months of receipt of the City's request. B. This Section 5.03 shall not apply to capabilities provided by Cavalier in areas that are (1) subject to effective competition, or; (2) are part of a Service trial or new Service launch that is less than two (2) years old. 5.04 Lockout Device. Upon the request of a Subscriber, Cavalier shall make available by sale or lease a Lockout Device, or its functional equivalent. 5.05 Provision of Service. A. The availability of Cable Service provided by Cavalier to the subscriber over existing copper, twisted-pair wires leased from the incumbent local exchange carrier is limited by the availability of those wires as unbundled network elements in Cavalier's collocation sites in central offices designated as Density Cell One by the Virginia State Corporation Commission, without causing new equipment, facilities, or outside plant to be built or added, and without having existing equipment, facilities, or outside plant re- engineered or modified. The twisted-pair wires must be able to support Internet protocol (IP) download speeds of 10 Megabits per second (Mbps) and IP upload speeds of 1 Mbps utilizing the digital subscriber line (DSL) technology utilizes by Cavalier. B. After Cable Service has been established by activating the necessary electronics and distribution cable for the provision of IPTV to any area served by a Central Office supporting IPTV, Cavalier shall, except under conditions beyond Cavalier's reasonable control, initiate the provision of Service via a Standard Installation to: (1) Any Person or Governmental Entity within the area within seven (7) business days from the date when underlying facilities are obtained from a third-party provider; and (2) Any Commercial Entity within the area upon terms and conditions negotiated by the Commercial Entity and Cavalier. C. Non-Standard Installations. For cable service to be provided by Cavalier constructed cable plant, Cavalier shall install and provide Cable Service to any Person requesting other than a Standard Installation, provided that said Cable Service can meet FCC technical specifications and all payment and policy obligations are met. In such case, Cavalier may charge for the incremental increase in material and labor costs incurred beyond the Standard Installation. 5.06 Technical Standards. The System shall be designed, constructed and operated so as to meet those technical standards set forth in Exhibit A, the applicable technical standards set forth in 47 C.F.R. S 76.601, and any other applicable technical standards. 8 5.07 Testing. A. Based upon indications of significant non-compliance with the technical standards required by this Franchise, City may require Cavalier to perform tests and/or analyses to confirm compliance. City shall endeavor to arrange its request for such tests so as to minimize hardship or inconvenience to Cavalier or Subscribers. The City or its representatives may witness the tests. Upon completion of testing, Cavalier shall provide City with a report of the test results. To the extent allowed by applicable law, such results shall be held proprietary and confidential. B. If after receiving Cavalier's test report, City determines that reasonable evidence indicates significant non-compliance with this Franchise still exists, City may retain an independent engineer to perform tests and analyses directed toward the particular matter in controversy. 1. Cavalier shall bear the expense for the independent testing if the test confirms the alleged significant non-compliance. City shall bear the expense of the independent testing if Cavalier is found not to be at fault. 2. If Cavalier is found to be at fault, Cavalier shall provide a written report to City detailing the steps undertaken to correct the non- compliance. To the extent allowed by applicable law, any such report shall be held proprietary and confidential. C. Cavalier shall conduct all tests of its System as required by applicable FCC regulations. Results of such testing shall be provided free of charge to City upon request. To the extent allowed by applicable law, such results shall be held proprietary and confidential. The tests may, upon request of City, be witnessed by representatives of City. SECTION 6. SERVICE PROVISIONS. 6.01 Basic Service. Cavalier shall offer to all Subscribers a service level designed to meet the minimum information needs of the residents of the City. Cavalier shall offer Basic Cable Service as required by law, including off-air local broadcasting channels and the PEG Access Channels set forth in Section 6.06. Cavalier retains the right to add, delete or modify the programming on such Basic Cable Service tier. 6.02 Regulation of Service Rates. A. City may regulate rates for the provision of Cable Service, equipment, and Installations in accordance with applicable federal law, in particular 47 C.F.R. Part 76 subpart N. In the event the City chooses to regulate rates it shall, in accordance with 47 C.F.R. 976.910, obtain certification from the FCC, if applicable. The City shall follow all applicable FCC rate regulations and shall ensure that appropriate personnel are in place to administer such regulations. City reserves the right to regulate rates for any future services to the extent permitted by law. 9 B. Cavalier shall not discriminate among Subscribers in the rates it charges, however, nothing herein shall preclude Cavalier from establishing reasonable classifications of customers and charging them different rates. 6.03 Programming Decisions. All programming decisions shall be at the sole discretion of Cavalier; provided, however, that Cavalier shall be requested to maintain a diverse mix, quality, and level of Service. 6.04 Emergency Alert System. Cavalier shall install and maintain for use by the City an Emergency Alert System ("EAS") meeting all applicable requirements of federal law. In the event of an emergency situation that requires notification to the City's citizens, in addition to other methods of notification, the City, in accordance with established Emergency Alert System (EAS) procedures, will notify Cavalier of the emergency and present it with an emergency message. Cavalier shall broadcast the emergency message on all analog and digital channels, or shall force tune viewers to a designated EAS alert channel, except for those off-air channels with which Cavalier has agreed not to override during an emergency message. The emergency message will advise the citizens of the emergency and direct them to turn to VBTV the City's emergency alert channel for further information. 6.05 Service to Public Facilities. Because the Service is an IPTV service that is DSL- based and delivered over copper loops, Cavalier will, in lieu of providing service drops, pay a 1.5% gross revenue fee as set forth in further detail in section 6.06 below. 6.06 Public, Educational and Governmental ("PEG") Access Channels. A. Cavalier shall, at no charge to the City, provide three (3) Channels on Cavalier's Basic Service Tier to air non-commercial PEG access programming, consistent with Section 611 of the cable Act (47 U.S.C. g531), and, upon ninety (90) days written notice from the City, up to four (4) Channels on a digital service tier, one (1) of which shall be used for City training purposes on a viewer-restricted basis (i.e., audio and video encrypted). The City shall have sole discretion to determine the users of said Channels. Notwithstanding anything to the contrary, Cavalier shall be permitted to use capacity on the Channels for the provision of other Services if such Channels are not being used for the purposes designated pursuant to rules and procedures developed by the City. B. Upon written request from the City, Cavalier shall allow other franchised cable operators to interconnect with Cavalier's Cable System for the sole purpose of allowing the transmission of PEG access programming to such other franchised cable operators within the City. Nothing herein shall prohibit Cavalier from requiring such other franchised cable operator to pay the costs of such interconnection, including construction, signal transport, and maintenance costs. C. The City may, by ordinance adopted after a public hearing, require Cavalier to interconnect with any other cable operator to ensure the carriage of required PEG channels. Cavalier shall use reasonable efforts to interconnect its System with the existing cable operator(s) or, at its option, directly with the PEG programming provider. Prior to the Service Date, Cavalier shall initiate interconnection negotiations with the existing cable operator(s) to cablecast, on a live basis, public, educational and governmental access programming consistent with this Agreement. Interconnection may be accomplished by 10 direct cable, microwave link, satellite or other reasonable method of connection. Cavalier shall negotiate in good faith with existing cable operator(s) respecting reasonable, mutually convenient, cost-effective, and technically viable interconnection points, methods, terms and conditions. Cavalier and the existing cable operator(s) shall negotiate the precise terms and conditions of an interconnection agreement. If no agreement is reached within one hundred eighty (180) days from Cavalier's initial request to the cable operator(s), the City shall designate the point of interconnection.. Each party shall be responsible for its own interconnection cost. Both Cavalier and cable operator(s) will use commercially reasonable efforts to complete interconnection as soon as practicable after the City promulgates the ordinance designating an interconnection point D. Cavalier shall include detailed program schedules for the educational and access channels in its on-screen listings, provided that the City makes available such detailed program schedules to the entity or entities that produce such listings for Cavalier in accOJ;dance with each entity's normal format and lead time requirements. E. In the event the City designates a body to administer any of the PEG access Channels, Cavalier agrees to cooperate with and consult with such body in connection with matters relating to the use of the PEG access Channels. F. Cavalier shall provide the City a monthly PEG capital fee in the amount of 1.5% of Gross Revenue. Payments due to the City under this provision shall be computed at the end of each quarter of a year for that quarter. Payments shall be due and payable for each quarter or a portion of a quarter on January 31, April 30, July 31, and October 31. G. Any and all payments by Cavalier to City in support of PEG access programming shall not be deemed a Sales or Use Tax within the meaning of Section 58.1- 645 et. seq. ofthe Code of Virginia. Consistent with applicable law, Cavalier may list the PEG capital fee as a line item on Subscriber bills. H. If Cavalier makes changes to Cavalier's System that require improvements to PEG access facilities and equipment, Cavalier shall provide any necessary additional headend and distribution facilities or equipment within thirty (30) days so that PEG facilities and equipment may be used as intended with respect to the up to seven (7) PEG Channels specified in Section 6.06(A), so that live and taped programming can be cablecast efficiently to Subscribers. Cavalier shall be solely responsible for the costs associated with maintenance, repair and any desired technology changes of the signal transport facilities required by Section 6.06(C). I. If any Access channel is reassigned, then Cavalier shall provide the City with at least ninety (90) days' advance written notice before reassigning the channel, and shall pay the City's reasonable costs of any advertising and promotional materials required due to the reassignment. 11 SECTION 7. CONSTRUCTION PROVISIONS. 7.01 Construction Standards. A. Cavalier shall comply with the construction requirements of local, state and federal laws. B. All installation of electronic equipment shall, where applicable, be of a permanent nature, durable and installed in accordance with the provisions of the National Electrical and Safety Code and National Electrical Code as amended, as applicable to Cable Systems. C. Antennas and their supporting structures (tower) shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and all other applicable state or local laws, codes and regulations. D. All of Cavalier's plant and equipment, including, but not limited to, the antenna site, headend and distribution system, towers, house connections, structures, poles, wire, cable, coaxial cable, fixtures and appurtenances shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained and operated in accordance with accepted engineering practices, performed by qualified maintenance and construction personnel so as not to endanger or interfere with improvements the City may deem appropriate to make and also to reasonably preserve and protect plants and tree improvements in the tree belt and right-of-way, and not to interfere with the legal rights of any property owner, or to unnecessarily hinder or obstruct pedestrian or vehicular traffic. E. Cavalier shall at all times employ ordinary care and shall install and maintain in use commonly accepted methods and devices preventing failures and accidents which may be likely to cause damage, injury or nuisance to the public. Upon request, Cavalier will provide information to City regarding items of quality control for installation and maintenance activities performed by Cavalier or its authorized subcontractors. F. Upon request, Cavalier shall work with City to establish guidelines regarding the location and placement of the System to provide the most judicious use of available space in Streets and Public Property. 7.02 Construction of Facilities. A. The System hereafter constructed or installed by Cavalier, and all easements and rights-of-way hereafter obtained by Cavalier, shall be located so as to cause as little interference with the public use of the Streets, and other Public Property as is reasonably possible, and all such facilities shall be maintained in good repair and condition. Facilities located on, over, under or within the property of City or private property shall be constructed, installed and maintained in accordance with all applicable City ordinances, rules, regulations and requirements. In the event the construction, installation, repair or maintenance of any of the System necessitates the removal of trees or other vegetation, such trees and vegetation shall be replaced to the extent possible promptly upon the conclusion of the work performed or at such later time as the City may designate. In the event such trees and other vegetation 12 cannot be replaced at the same location, Cavalier shall install an equivalent amount oftrees vegetation at such other location as the City may designate. Any determination by Cavalier that the replacement oftree(s) is not possible shall require prior approval of City. B. Except in cases of an emergency, Cavalier shall not install, move, alter, repair, relocate or remove any of its underground System in or from any Street or Public Property, or dig, cut or otherwise disturb the surface of any public Street or Public Property, unless prior written notice of its intention to do so is given to City's Director of Public Works or his designee no less than three (3) business days prior to the time such work commences, and permission to perform such work is granted or waived by the Director or his designee or a permit authorizing such work is obtained, which permit shall not be unreasonably withheld. Such permission or permit shall, whether or not expressly stated in any given instance, be conditioned upon the work covered by the permit being performed in compliance with the provisions of the Franchise and with all applicable City ordinances, rules, regulations and requirements. The Director or his designee may, in addition to any other requirement of law or provision of the Franchise, impose such additional reasonable conditions, requirements or restrictions as will prevent or minimize interference with or obstruction of the Streets and Public Property, ensure the prompt and complete restoration of Streets and Public Property damaged, disturbed or altered by work performed by or on behalf of Cavalier, or otherwise preserve, protect and promote the public health, safety and welfare. C. Cavalier may perform emergency work which is necessary to ensure the public health, safety or welfare, prior to the issuance of a permit. In such cases, Cavalier shall provide notice to City, except if the provision of such notice is not reasonably possible, as soon as practicable, and in any case no later than two (2) working days after the commencement of work. D. Whenever Cavalier proposes to install new underground conduits or replace existing underground conduits within the City, it shall notifY City as soon as practical and shall allow City, at its own expense, to share any excess capacity within the conduit of Cavalier or to lay its own conduit therewith, provided that such action by City will not unnecessarily interfere with Cavalier's facilities or delay the accomplishment ofthe project. E. City shall have the right at Cavalier's expense to perform reasonable and necessary inspection of all construction work performed on Public Property or Streets pursuant to the requirements of Section 4.03. F. Nothing contained in this Franchise shall be construed to give Cavalier the authority to enter upon or work on private property in areas where such entry or work is not authorized pursuant to this Franchise or other legal instrument without the permission of the property owner, tenant or authorized agent. 7.03 Repair of Streets and Property. Cavalier and its contractors shall comply with all ordinances of City pertaining to work on Streets, Public Property or private property. Any and all Streets, Public Property or private property that are disturbed or damaged during the construction, repair, replacement, relocation, operation, maintenance, reconstruction or removal of the System, or any portion thereof, shall be promptly repaired by Cavalier, at its expense, to a condition as good as that prevailing prior to Cavalier's work. Any damage caused to the property of building owners or users or any other Person as a result of any 13 action or omission by Cavalier or its contractors shall be promptly and fully repaired by Cavalier. 7.04 Use of Existing Poles. No poles, conduits, or other wire-holding structures shall be erected or installed by Cavalier on City's property without prior approval of City with regard to the location, height, type and other pertinent aspects, which approval shall not be unreasonably withheld. City may require Cavalier to provide written justification should the use of such poles and other wire-holding structure be solely for the purpose of supporting Cavalier's System. The location of any pole, conduit or wire-holding structure of Cavalier on City's property shall not be a vested right and such poles, conduits or other structures shall be removed or modified by Cavalier at its own expense upon reasonable request of City. 7.05 Undergrounding of Cable. Cable shall be installed underground at Cavalier's expense where both the existing telephone and electrical utilities are already underground or when required by City ordinance, including, without limitation, Section 5.10 of the Subdivision Ordinance or successor provision. Cavalier shall place cable underground in newly platted areas in concert with both the telephone and electrical utilities, unless this requirement is waived or modified by City. Cavalier shall be required to convert overhead lines to underground, at Cavalier's expense, if and when electric and telephone overhead utilities in the same area are converted to underground; provided, however, that where public funds are available to reimburse right-of-way occupants for such relocations, Cavalier shall be permitted access to such funds on a non-discriminatory basis. 7.06 Reservation of Street Rights. A. Nothing in this Franchise shall be construed to prevent City from constructing, maintaining, repairing or relocating sewers; constructing, grading, paving, maintaining, repairing, relocating and/or altering any Street; constructing, laying down, repairing, maintaining or relocating any water mains; or constructing, maintaining, relocating, or repairing any sidewalk or other public work. All such work shall be done, insofar as practicable in such a manner as not to obstruct, injure or prevent the free use and operation of the poles, wires, conduits, conductors, pipes or appurtenances of Cavalier. B. If any such property of Cavalier shall interfere with the construction, relocation, maintenance or repair of any Street or public improvement, whether it be construction, repair, maintenance, removal or relocation of a sewer, public sidewalk, water main, Street or any other public improvement, forty-five (45) days written notice shall be given to Cavalier by City and all such poles, wires, conduits or other facilities shall be removed or replaced by Cavalier in such manner and within such reasonable time as may be directed by City so that the same shall not interfere with the said public work of City, as determined by City, and such removal or replacement shall be at the sole expense of Cavalier (subject to the availability of public funds to reimburse right-of-way occupants for such removal or replacement to which Cavalier shall have access on a non-discriminatory basis); provided, however that the City's failure to give the notice in strict compliance with the time limits set forth herein shall not relieve Cavalier of the obligation to pay the cost of removal or replacement. In the event such construction, relocation, maintenance or repair must be commenced within forty-five (45) days, City shall give Cavalier notice thereof at the earliest practicable time. 14 C. In the event Cavalier fails to timely remove or replace any of its facilities pursuant to this section, the City may remove or replace such facilities and charge the reasonable cost thereof to Cavalier. D. Nothing contained in this Franchise shall relieve any Person or entity, including City from liability arising out of the failure to exercise reasonable care to avoid injuring Cavalier's System. 7.07 Trimming of Trees. Cavalier shall have the authority to trim trees upon and hanging over Streets, and Public Property in the City so as to prevent the branches of such trees from coming in contact with the System of Cavalier; provided, however, that all trimming on Streets or Public Property shall be done in accordance with applicable City ordinances. 7.08 Street Vacation or Abandonment. In the event City determines to vacate, abandon or discontinue use of any Street or portion thereof used by Cavalier, City shall notify Cavalier as soon as reasonably practicable. 7.09 Movement of Facilities. In the event it is necessary temporarily to move or remove any of Cavalier's wires, cables, poles, or other facilities placed pursuant to this Franchise, in order to lawfully move a large object, vehicle, building or other structure over the Streets in the City, upon ten (10) days notice by City to Cavalier, Cavalier shall move its facilities as may be required to facilitate such movements, at the expense of the requesting party, payment to be made in advance. There shall be no charge to City for such removal. Any Service Interruption provisions of this Franchise shall not apply in the event that the removal of Cavalier's wires, cables, poles or other facilities results in temporary Service Interruptions. SECTION 8. OPERATION AND REPORTING PROVISIONS. 8.01 Financial Books and Records. The City shall have the right to inspect original records, upon reasonable notice and during Normal Business Hours, or require Cavalier to provide within a reasonable time copies of any records maintained by Cavalier which relate to System operations including specifically Cavalier's accounting and financial records. City acknowledges that some of the records which may be provided by Cavalier may be classified as confidential and therefore may subject Cavalier to competitive disadvantage if made public. City shall therefore maintain the confidentiality of any and all records provided to it by Cavalier which are not required to be made public pursuant to applicable laws; however, that Cavalier shall be required to designate such of the records as it desires to be kept confidential and to notify the City of the provision of law that allows such records to be withheld from public inspection. Cavalier shall produce such books and records for City's inspection at Cavalier's local office located within thirty (30) miles of the City or at such other mutually agreed upon location within the City. 8.02 Communications with Regulatory Agencies. The results of any tests required to be filed by Cavalier with the FCC shall upon request of the City also be filed with the City or its designee within ten (10) days of such request. 15 8.03 Annual Report. Within ninety (90) days of the end of Cavalier's fiscal year, including the fiscal year in which the Franchise becomes effective, Cavalier shall file with City an annual report containing the following information regarding the System: A. A financial statement verifying total Gross Revenues prepared in accordance with generally accepted accounting principles and certified by a financial officer of Cavalier. B. A summary of the previous year's activities in the development of the System, including, but not limited to, services begun or discontinued during the reported year. C. A current copy of the Subscriber service agreement. D. Changes, if any, in the ownership structure provided pursuant to Section 15.02. 8.04 Requested Reports. A. Upon request, Cavalier shall provide City with a written quarterly report evidencing Cavalier's compliance with the customer standards found in Section 9 and Exhibit C of this Franchise. Such report shall be provided within forty-five (45) days following the end of a given quarter. In the event the City has alleged that Cavalier is in violation of the customer service standards, such report shall be submitted within fifteen (15) days of the end of the quarter following such allegation until such alleged violation is resolved by the parties. Cavalier shall be permitted to submit raw quarterly statistics from its Call Center to comply with the reporting requirement. Cavalier reserves the right to revise such raw statistics at a later date to reflect periods when the system may not have been operating under Normal Operating Conditions. 8.05 Mapping. Cavalier shall furnish the City with two (2) complete sets of route maps, drawn to scale and certified to the City as accurately depicting the actual location of all Cable System routes and shall include a digitized map(s) in both printed and electronic form readable by the current version of AutoCAD. 8.06 Annual Evaluation Sessions. City may require annual evaluation sessions during the term of this Franchise; provided however, that there shall not be more than one (1) evaluation session during any calendar year. Topics which may be discussed include, but are not limited to, Channel capacity, System performance, programming, the PEG access Channel programming, municipal use of cable, Subscriber Complaints, judicial rulings, FCC rulings and any other topics City or Cavalier deem relevant. During each evaluation session, Cavalier shall fully cooperate with City and provide without cost such readily available information and documents as City may reasonably request. SECTION 9. CONSUMER PROTECTION PROVISION. 9.01 Cavalier Office. Upon acquiring thirteen thousand (13,000) or more Subscribers within the City, Cavalier shall maintain a convenient local customer service and bill payment location in the City where Subscribers can receive face-to-face service. The facility shall be adequately staffed in order to address customer inquiries, receive bill payments and perform equipment exchanges. The facility shall be open during Normal Business Hours. Cavalier 16 shall maintain at least one (1) drop box or payment kiosk within the Service Area for receiving Subscriber payments after hours. 9.02 Interruption of Service. A. Cavalier shall render efficient Service, make repairs promptly and interrupt service only for good cause and for the shortest time possible. Such interruptions to the extent possible, shall be preceded by notice to City and Subscribers, and shall occur during periods of minimum use of the System. B. If Cavalier's Cable Service is interrupted or discontinued for twenty-four (24) or more consecutive hours, a Subscriber, upon request, shall be entitled upon notification to Cavalier of a credit of credited pro rata for such interruption. Credits shall be issued no later than the Subscriber's next billing cycle following the determination that a credit is warranted. For this purpose, every month will be assumed to have thirty (30) days. 9.03 Subscriber Service Information. Cavalier shall provide written Service information to each Subscriber (including the City and other recipients of complimentary Service) upon Installation of Service. This information shall include the following: A. Products and Services offered. B. Prices and options for programming Services and conditions of subscription to programming and other services; C. Installation and service maintenance policies; D. Instructions on how to use the Cable Service; E. Channel positions of the programming carried on the System; and F. Billing and Complaint procedures, including the address and telephone number of the City. 9.04 Late Fees. Cavalier shall not impose a late charge on a Subscriber until after the Service has been fully provided and, as of the due date of the bill notifying the Subscriber of an unpaid balance, the bill remains unpaid. Late fees may not exceed a monthly rate of one and one-half percent (1.5%). 9.05 Cavalier shall also provide the necessary facilities, equipment and personnel to comply with the consumer protection standards set forth in Exhibit C, under Normal Operating Conditions. 17 SECTION 10. GENERAL FINANCIAL AND INSURANCE PROVISIONS. 10.01 Payment to City. A. During the term of this Franchise, Cavalier shall pay a Sales or Use Tax ("Tax") of five percent (5%) of its Gross Revenues, or such other amounts as are subsequently permitted by state or federal statute. If the Cable Service is provided to Subscribers in conjunction with other services, then the Tax required by this section shall be applied only to the value of the Cable Service, as reflected on the books and records of Cavalier in accordance with any applicable rules, regulations, standards, or orders of the Federal Communications Commission or the State Corporation Commission, or generally accepted accounting principles. Any discounts resulting from purchasing the services as a bundle shall be reasonably allocated between the respective services that constitute the bundled transaction. B. With respect to the payment ofthe Tax, the parties shall comply with all applicable requirements of the provisions of Section 58.1-645 et. seq. ofthe Code of Virginia (the "Virginia Communications Sales and Use Tax") in its current form and as may be amended. Upon payment by Cavalier of any Tax pursuant to this Section 10.01, Cavalier shall provide to the City a brief report in a form substantially similar to that appearing in Exhibit B hereto and prepared by a representative of Cavalier showing the basis for the computation. C. All amounts paid shall be subject to audit and recomputation by City. In the event the City should conduct a review of Cavalier's books and records pursuant to Section 8.01 of this Franchise and such review indicates a Tax underpayment ofthree percent (3%) or more, Cavalier shall assume all reasonable documented costs of such audit, and pay same upon demand by the City. 10.02 Letter of Credit. A. Cavalier shall furnish and file with the City a letter of credit in the sum of Fifty Thousand and No/I 00 Dollars ($50,000). The letter of credit shall be conditioned upon the faithful performance of Cavalier of all terms and conditions of this Franchise. The rights reserved to City with respect to the letter of credit are in addition to all other rights City may have under the Franchise or any other law. B. The letter of credit shall be subject to the approval of City Attorney and shall contain the following endorsement: "It is hereby understood and agreed that this letter of credit may not be cancelled without the consent of the City until sixty (60) days after receipt by 18 the City by registered mail, return receipt requested, of a written notice of intent to cancel or not to renew." 10.03 Liquidated Damages from Letter of Credit. In addition to any other remedies provided herein, City and Cavalier understand and agree that the failure to comply with any time and performance requirements set forth in this section will result in damage to the City and that it is and will be impracticable to determine the actual amount of such damage in the event of delay or non-performance. Accordingly, as a result of any acts or omissions by Cavalier, the City may draw from the letter of credit the following liquidated damages: A. For failure to provide a System meeting the minimum requirements set forth in Section 5 of this Franchise, the liquidated damage shall be Two Hundred and Noll 00 Dollars ($200.00) per day for each day or part there of, such failure occurs or continues. B. For failure to test, analyze and report on the performance ofthe System following a reasonable request by City pursuant to Sections 5.07 of this Franchise, the liquidated damage shall be Two Hundred and No/100 Dollars ($200.00) per day. C. For failure to provide the access Channels and programming origination points in accordance with Section 6.06 of this Franchise, the liquidated damage shall be Three Hundred and No/100 ($300.00) per day for each day, or part thereof, such breach occurs or continues. D. For failure of Cavalier to comply with the construction, operation or maintenance standards set forth in Section 7 of this Franchise, or the conditions of any permits issued by the City to disturb Streets, fix Streets, or other terms or conditions placed on Cavalier's construction activities, the liquidated damage shall be Two Hundred and No/I 00 Dollars ($200.00) per day. E. For failure to provide data, documents, reports or information to cooperate with City pursuant to Section 8 of this Franchise, the liquidated damage shall be Two Hundred Dollars and Noll 00 Dollars ($200.00) per day. F. For failure to maintain a local payment capability pursuant to Section 9.01 of this Franchise, the liquidated damage shall be One Hundred Fifty and Noll 00 Dollars ($150.00) per day for each day, or part thereof, such breach occurs or continues. G. For failure to comply with the customer service standards measured on a quarterly basis contained in Section 9 of this Franchise, the liquidated damage shall be One Thousand and Noll 00 Dollars ($1,000.00) per calendar quarter for each subsequent quarter of non-compliance. H. For failure to obtain or maintain the letter of credit or insurance in a timely fashion pursuant to Section 10 ofthis Franchise, the liquidated damage shall be One Hundred Fifty and Noll 00 Dollars ($150.00) per day for each day, or part thereof, such breach occurs or continues. I. For failure to comply with the system transfer provisions pursuant to Section 12 of this Franchise, the liquidated damage shall be Two Hundred Fifty and No/100 Dollars 19 ($250.00) per day for each day, or part thereof, such failure occurs or continues, measured from the date of the closing of the transaction in question. 10.04 Procedure for Imposition of Liquidated Damages. A. Whenever the City finds that Cavalier has violated one (1) or more terms, conditions or provisions of this Franchise, for which relief is available against the Letter of Credit, a written notice shall be given to Cavalier informing it of such violation or liability. The written notice shall describe in reasonable detail the specific violation so as to afford Cavalier an opportunity to remedy the violation. Cavalier shall have thirty (30) days subsequent to receipt of the notice in which to correct the violation before the City may impose liquidated damages or may resort to Cavalier's letter of credit. Cavalier may, within seven (7) days of receipt of notice, notify the City that there is a dispute as to whether a violation or failure has, in fact, occurred. Such notice by Cavalier to the City shall specify with reasonable detail the matters disputed by Cavalier and shall stay the running of the above-described time. 1. The City or its designee shall hear Cavalier's dispute at a meeting called in a timely manner. Cavalier shall be afforded notice of the meeting not less than ten (10) business days prior to the meeting and afforded an opportunity to participate in and be heard at this meeting, including the opportunity to introduce evidence. The City or its designee shall supplement the decision with written findings of fact. 2. If after hearing the dispute the claim is upheld by the City, Cavalier shall have ten (10) business days from notice of such a determination within which to file an appeal with an appropriate state or federal court or agency. B. The time for Cavalier to correct any violation or liability may be extended by the City if the necessary action to correct such violation or liability is of such a nature or character to require more than thirty (30) days within which to perform, provided Cavalier commences the corrective action within the thirty (30) day period and thereafter uses reasonable diligence to correct the violation or liability. City and Cavalier agree that for violations involving Section 9.02(A) and (B) of this Franchise, Cavalier shall be given a calendar quarter to cure such violation. C. The rights reserved to the City with respect to Cavalier's letter of credit are in addition to all other rights of the City whether reserved by this Franchise or authorized by law, and no action, proceeding or exercise of a right with respect to Cavalier's letter of credit shall affect any other right the City may have. 20 10.05 Damages and Defenses. A. Cavalier shall be responsible for, defend, indemnify and hold City harmless from and against any damage or loss to any real or personal property of City or any Person, and for injury to or death of any Person and any officer, employee or agent of City arising out of or in connection with the construction, operation, maintenance, repair, or removal of, or any other action of Cavalier with respect to, the System, any service or related activity, or the distribution of any service over the System. B. City, its officers, employees and agents shall not be liable for any loss or damage to any real or personal property of any Person, or for any injury to or death of any Person, arising out of or in connection with the construction, operation, maintenance, repair or removal of, or other action or event with respect to the System, except as may result from the acts of City, its officers, employees and its agents. C. Cavalier shall be responsible for, defend, indemnify, and hold harmless City, its officers, employees and agents, from and against any and all liability, damages, costs and expenses (including reasonable attorneys' fees) arising out of or in connection with the construction, operation, maintenance, repair, or removal of the System, or as a result of the procedures for granting this Franchise or of Cavalier's exercise of this Franchise. D. In order for City to assert its rights to be indemnified, defended, and held harmless, City must: 1. Promptly notify Cavalier of any claim or legal proceeding which gives rise to such right; 2. Afford Cavalier the opportunity to participate in and fully control any compromise, settlement or other resolution or disposition of such claim or proceeding; unless, however, City reasonably determines that its interests cannot be represented in good faith by Cavalier; and 3. Fully cooperate with the reasonable requests of Cavalier, at Cavalier's expense, in its participation in, and control, compromise, settlement or resolution or other disposition of, such claim or proceeding subject to Section 10.06(D)(2). E. In the event City reasonably determines that its interests cannot be represented in good faith by Cavalier, Cavalier shall pay all reasonable expenses incurred by City in defending itself with regard to all damages mentioned in Section 10.06(A) above. These expenses shall include all out-of-pocket expenses, such as attorney's fees and costs. 10.06 Insurance. A. As a part of the indemnification provided by Section 10.06, but without limiting the foregoing, Cavalier shall file with its acceptance of this Franchise, and at all times thereafter maintain in full force and effect at its sole expense, an acceptable policy or policies of liability insurance, including comprehensive general liability insurance, products/completed operations liability, personal injury liability, broad form property damage, contractual liability, automobile liability (owned, non-owned and hired automobiles) 21 and worker's compensation. Except for worker's compensation and for liabilities arising from this Franchise, the policy or policies shall name as additional insured, City, and in their capacity as such, its officers, agents and employees. Cavalier will provide comprehensive liability coverage and automobile liability coverage with a combined single limit of not less than One Million and Noll 00 Dollars ($1,000,000), and an Excess Liability Policy with a combined single limit of not less than Two Million Dollars and Noll 00 ($2,000,000). The insurance policy or policies shall contain contractual liability insurance naming Cavalier, and shall insure against the types of liabilities covered by the indemnification and hold harmless provision of Section 10.06. B. The policy or policies of insurance shall be maintained by Cavalier in full force and effect during the entire term of the Franchise. Each certificate of insurance shall contain a statement on its face that the insurer will not cancel the policy or fail to renew the policy, whether for nonpayment of premium, or otherwise, and whether at the request of Cavalier or for other reasons, except after thirty (30) calendar days' advance written notice mailed by the insurer to City and that such notice shall be transmitted postage prepaid, and return receipt. 10.07 Work Performed by Others. A. All provisions of this Franchise shall remain the responsibility of Cavalier, and Cavalier shall hold City harmless from and against any claims or liability arising out of work performed by Persons or entities other than Cavalier. B. All provisions of this Franchise shall apply to any subcontractor or others performing any work or services pursuant to the provisions of this Franchise. C. Any subcontractor or other individual or entity performing any work or services pursuant to the provisions of this Franchise shall fully identify all of its vehicles, and equipment by decals and signs. All employees and agents of subcontractors and others performing any work or services pursuant to the provisions of this Franchise shall carry badges identifying them as contractors for Cavalier. 10.08 City's Right to Revoke. In addition to all other rights which City has pursuant to law or equity, City reserves the following rights to revoke, terminate or cancel this Franchise, and all rights and privileges pertaining thereto: (a) Upon completion of the term of the Franchise, if a new, extended, or renewed Franchise is not granted to Cavalier by the City, Cavalier's right to occupy the Public Rights-of- Way shall terminate, subj ect to applicable federal or state law. (b) The City shall have the right to revoke the Franchise for any material breach of the Franchise. To revoke the Franchise for material breach, the City shall give Cavalier written notice of the default in its performance. If within thirty (30) calendar days following such written notice from the City to Cavalier, or such other period as the Franchise Agreement shall require or Cavalier and the City shall agree, Cavalier has not taken corrective action to the satisfaction of the City, the City may give written notice to Cavalier of its intent to revoke the Franchise, stating its reasons; provided that no opportunity to cure shall be provided where 22 Cavalier is shown to have defrauded or attempted to defraud the City or its Subscribers. (c) Prior to revoking the Franchise, the City shall hold a public hearing, on thirty (30) calendar days' notice, at which time Cavalier and the public shall be given an opportunity to be heard and to present evidence and witnesses. Following the public hearing, the City may determine whether to revoke the Franchise based on the information presented at the hearing, and other information of record, or, where applicable, grant additional time to Cavalier to affect any cure. If the City determines to revoke the Franchise, it shall issue a written decision setting forth the reasons for its decision. A copy of such decision shall be transmitted to Cavalier. After the public hearing and upon determination by City to revoke the Franchise, Cavalier shall have a period of thirty (30) days from the date of City's determination within which to file an appeal de novo with an appropriate state or federal court or agency. During the appeal period, the Franchise shall remain in full force and effect. (d) If the City revokes the Franchise, or if for any other reason Cavalier terminates it, the following procedures and rights are effective: The City may require Cavalier to remove its facilities and equipment at Cavalier's expense and restore affected sites as required by applicable law, or permit Cavalier to abandon such facilities in place, unless Cavalier sells its facilities and equipment to an entity that is granted a franchise by the City. If Cavalier fails to remove its facilities within a reasonable period of time, the City may have the removal done at Cavalier's and/or surety's expense. SECTION 11. FORECLOSURE, RECEIVERSHIP AND ABANDONMENT. 11.01 Foreclosure. Upon the foreclosure or other judicial sale of the System, Cavalier shall notify City of such fact and such notification shall be treated as a notification that a change in control of Cavalier has taken place, and the provisions of this Franchise governing the consent to transfer or change in ownership shall apply without regard to how such transfer or change in ownership occurred. 11.02 Receivership. City shall have the right to cancel this Franchise subject to any applicable provisions of federal or Virginia law, including the Bankruptcy Act, one hundred twenty (120) days after the appointment of a receiver or trustee to take over and conduct the business of Cavalier, whether in receivership, reorganization, bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless: A. Within one hundred twenty (120) days after his election or appointment, such receiver or trustee shall have fully complied with all the provisions ofthis Franchise and remedied all defaults thereunder; and B. Such receiver or trustee, within said one hundred twenty (120) days, shall have executed an agreement, duly approved by the Court having jurisdiction in the premises, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of this Franchise. 23 11.03 Abandonment. Cavalier may not abandon any portion of the System without having first given three (3) months written notice to City. Cavalier may not abandon any portion of the System without compensating City for damages resulting from the abandonment. City may recover from Cavalier, its parent company or subsidiaries for the reasonable cost of removal of the System. SECTION 12. REMOVAL, TRANSFER AND PURCHASE. 12.01 Removal After Expiration and Non-Renewal, or Revocation. A. At the expiration of the term for which the Franchise is granted, and absent renewal or extension, or upon its revocation, as provided for, City shall have the right to require Cavalier to remove, at Cavalier's expense, all or any portion of the System from all Streets and Public Property within the City. In so removing the System, Cavalier shall refill and compact at its own expense, any excavation that shall be made and shall leave all Streets, Public Property and private property in as good a condition as that prevailing prior to Cavalier's removal of the System, and without affecting, altering or disturbing in any way electric, telephone or utility, cables, wires or attachments. City shall have the right to inspect and approve the condition of such Streets and Public Property after removal. The letter of credit, insurance, indemnity and penalty provision of the Franchise shall remain in full force and effect during the entire term of removal. B. If, in the sole discretion of City, Cavalier has failed to commence removal of the System, or such part thereof as was designated, within thirty (30) days after written notice of City's demand for removal is given, or if Cavalier has failed to complete such removal within one (1) year after written notice of City's demand for removal is given, City shall have the right to exercise one (1) of the following options: 1. Declare all right, title and interest to the System to be in City with all rights of ownership including, but not limited to, the right to operate the System or transfer the System to another for operation by it; or 2. Declare the System abandoned and cause the System, or such part thereof as City shall designate, to be removed at no cost to City. The cost of said removal shall be recoverable from the letter of credit, indemnity and penalty section provided for in the Franchise, or from, Cavalier directly. 12.02 Sale or Transfer of Franchise. Transfer of the Franchise is subject to applicable local, state, and federal laws and regulations. SECTION 13. RIGHTS OF INDIVIDUALS PROTECTED. 13.01 Discriminatory Practices Prohibited. Cavalier shall not deny Service, deny access, or otherwise discriminate against Subscribers, programmers or general citizens on the basis of race, color, religion, national origin, sex, age or handicap. Cavalier shall comply at all times with all other applicable federal, state and local laws, and all executive and administrative orders relating to non-discrimination. 24 13.02 Subscriber Privacy. Cavalier shall comply with the provisions of 47 U.S.c. S 551 as currently written and as may from time to time be subsequently amended, and with any successor provision, however numbered. SECTION 14. MISCELLANEOUS PROVISIONS. 14.01 Compliance with Laws. Cavalier and City shall comply with all applicable state and federal laws and rules regarding cable television as they become effective. Cavalier shall also comply with all City ordinances, resolutions, rules and regulations of general applicability heretofore or hereafter adopted or established during the entire term of the Franchise. 14.02 Franchise Renewal, Any renewal of this Franchise shall be performed in accordance with applicable federal, state and local laws and regulations. 14.03 Continuity of Service Mandatory. Upon expiration and non-renewal or the termination of this Franchise, City may require Cavalier to continue to operate the System for a further period of time not to exceed sixty (60) days. During that time period, Cavalier shall continue to operate the System under the terms and conditions of this Franchise. In the event Grantee does not so operate the System, City may take such steps as it, in its sole discretion, deems necessary to assure continued Service to Subscribers. 14.04 Compliance with Federal, State and Local Laws. A. If any federal or state law or regulation requires Cavalier to perform any service or act, or prohibits Cavalier from performing any service or act, which may be in conflict with the terms of this Franchise, then as soon as possible following Cavalier's knowledge thereof, Cavalier shall notify City of the point of conflict believed to exist between such law or regulation. B. If any federal or state law or regulation permits Cavalier to perform any service or act, or permits Cavalier to cease the performance of any service or act, which may be to conflict with the terms of this Franchise, then as soon as possible following Cavalier's determination to exercise such permission, Cavalier shall notify City of the point of conflict believed to exist between such law or regulation. C. If any term, condition or provision of this Franchise or the application thereof shall, to any extent, be held to be invalid or unenforceable, the remainder hereof and the application of such term, condition or provision other than those as to whom it shall be held invalid or unenforceable shall not be affected thereby, and this Franchise and all the terms, provisions and conditions hereof shall, in all other respects, continue to be effective and to be complied with. In the event that such law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed so that the provision which had been held invalid or modified is no longer in conflict with the law, rules and regulations then in effect, said provision shall thereupon return to full force and effect and shall thereafter be binding on Cavalier and City. D. If any section, sentence, clause or phrase ofthis Franchise, or any part thereof, is for any reason found to be inconsistent with the rules and regulations of the FCC or invalid 25 by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Franchise or any part thereof. 14.05 Nonenforcement by City. Cavalier shall not be relieved of its obligation to comply with any of the provisions of this Franchise by reason of any failure or delay of City to enforce prompt compliance. Any waiver by City of a breach or violation of any provision of this Franchise shall not operate as or be construed to be a waiver of any subsequent breach or violation. However, City shall notify Cavalier prior to City's insistence on strict performance subsequent to any previously waived breach or delayed compliance. 14.06 Administration of Franchise. A. City shall have continuing regulatory jurisdiction and supervision over the System and Cavalier's operation under the Franchise. City may issue such reasonable rules and regulations concerning the construction, operation and maintenance of the System as are consistent with the provisions of the Franchise. City reserves the right to delegate and redelegate from time to time any of its rights and obligations under this Franchise. B. Cavalier shall construct, operate and maintain the System subject to the supervision of all the authorities of City who have jurisdiction in such matters and in strict compliance with all laws, ordinances, and departmental rules and regulations consistent with the provisions of the Franchise affecting the System. 14.07 No Recourse Against the City. Cavalier shall have no recourse whatsoever against City or its officials, agents or employees for any loss, costs, expense, or damage arising out of any provision or requirement of this Franchise, or because of the enforcement of the Franchise. 14.08 Rights Cumulative. All rights and remedies given to City and Cavalier by this Franchise shall be in addition to and cumulative with any and all other rights or remedies, existing or implied, now or hereafter available to City and Cavalier at law or in equity, and such rights and remedies shall not be exclusive, but each and every right and remedy specifically given by this Franchise or otherwise existing or given may be exercised from time to time and as often and in such order as may be deemed expedient by City and Cavalier, and the exercise of one (1) or more rights or remedies shall not be deemed a waiver of the right to exercise at the same time or thereafter any other right or remedy. 14.09 Incorporation of Attachments. The attachments to this Franchise consisting of Exhibits A through C, as specifically incorporated herein and made a part hereof. 14.10 Captions. The paragraph captions and headings in this Franchise are for convenience and reference purposes only and shall not affect in any way the meaning or interpretation of this Franchise. 14.11 Calculation of Time. Where the performance or doing of any act, duty, matter, payment or thing is required hereunder and the period of time or duration for the performance or doing thereof is prescribed and fixed herein, the time shall be computed so as to exclude the first and include the last day of and prescribed or fixed period or duration of time. When the last day ofthe period falls on a Saturday, Sunday or legal holiday, that day 26 shall be omitted from the computation. Unless otherwise specifically stated, the calculation of days shall be based upon calendar and not business days. 14.12 Confidentiality. To the fullest extent allowed by law, City shall keep confidential any information identified as confidential by Cavalier, and provided to City by Cavalier pursuant to this Franchise. 14.13 Force Majeure. In the event Cavalier unavoidably fails to comply with any deadline or schedule contained herein, or unavoidably fails to perform any of the terms and conditions contained herein, without any fault or negligence of Cavalier, or by any cause beyond the reasonable control of Cavalier, including, but not limited to, unavoidable casualty, unavoidable delay in delivery of required materials, strikes, embargoes, government orders or other requirements, acts of civil or military authorities, acts of God or other emergency conditions, Cavalier shall not be deemed in breach of this Franchise and shall be entitled to an appropriate extension of applicable deadlines or schedules. SECTION 15. EFFECTIVE DATE AND TIME OF ACCEPTANCE. 15.01 Effective Date. This Franchise shall take effect on the _ day of 2007. 15.02 Time of Acceptance; Incorporation of Proposal; Exhibits. A. Cavalier 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 Cavalier shall be deemed the grant of this Franchise for all purposes. In the event acceptance does not take place, this Franchise shall be null and void. B. With Cavalier's acceptance of this Franchise, Cavalier and City shall be bound by all terms and conditions contained herein. C. Within thirty (30) days of this acceptance, Cavalier shall also deliver any letter of credit and insurance certificates required herein that have not previously been delivered. Cavalier shall also provide a chart showing the current ownership structure of the company, including any parent entities. D. Upon acceptance of this Franchise, Cavalier shall be bound by all the terms and conditions contained herein. Cavalier shall provide all services and offerings specifically set forth herein. Cavalier acknowledges representations, adoption of this made by Cavalier, the obligations that all promises, offers, and inducements resulting in the Franchise were freely and voluntarily and Cavalier further acknowledges that of Cavalier contained herein are commercially practicable. E. The Franchise shall be permanently kept and filed in the office of the City Clerk and non-confidential portions of the originals or reproductions thereof shall be available for inspection by the public during Normal Business Hours. Passed and adopted by the City Council on this _ day of ,2007. 27 By: CITY OF VIRGINIA BEACH, VIRGINIA By: ATTEST: Its: Its: Mayor Approved as to Content: [1$ Approved as to Legal Sufficiency: lif II. C" I ~ ~~ 'Jt/Y IV- Office of ity Attorney \Y'IA De . f Communications and Information Technology ACCEPTED: This Franchise is accepted, and we agree to be bound by its terms and conditions. Date: Clpril Z 3 , _ 2007 CA V ALlER IP TV, LLC By: ~aft---b Its: /f e._(/ A J " ~ SWORN TO BEFORE ME this z.3day of ~n I ,2007. NOT~ ~ Sherry Brown NOTARY PUBLIC Commonwealth of VIrginia My Commission Expires February 29, 2008 28 EXHIBIT A TECHNICAL STANDARDS 1. The Cable System shall be designed, constructed, routinely inspected, and maintained to guaranty the Cable System meets or exceeds the requirements of the most current applicable editions of the National Electrical Code (NFP A 70) and the National Electrical Safety Code (ANSI C2). 2. General Requirements. Cavalier shall use equipment used in high-quality, reliable, modern Cable Systems of similar design. 3. General Description. The Cable System shall provide Subscribers with a technically advanced and reliable Cable System. The System shall operate with a minimum capability of being capable of delivering a minimum of seventy-eight (78) Channels of programming. The System will be two-way active. The design will provide the benefits of proven seventy-eight (78) Channel electronics while positioning the System for expansion of bandwidth and Channel capacity as technology and future services develop. 4. Design. The design ofthe System shall be based upon a copper-based DSL architecture. 5. System Requirements. The System shall, at all times during the Franchise term, meet or exceed the following requirements: (a) The System shall ensure that each part of the System's distribution network is capable of operating for not less than three (3) hours according to manufacturer's reasonable specifications, in view of local conditions, in the event of an electrical outage. Cavalier shall use equipment that will (A) cut in automatically on failure of commercial utility AC power, (B) revert automatically to AC power when such power is restored, (C) prevent the standby power source from powering a "dead" utility line, and (D) alert Cavalier's staff when the backup power supply cuts in. The obligation to provide such backup power supplies shall apply to Cavalier's headend, each fiber optic node, and any other location(s) within the System necessary to maintain service to Subscribers who have power for not less than three hours in the event of an electrical outage affecting the System. (b) The System shall function so that a signal received at the headend in color may be received by a Subscriber in color and a stereo signal in stereo, without substantial alteration or deterioration in those respects. (c) Cavalier shall comply with all applicable laws and regulations concerning System compatibility with Subscribers' television receivers and/or electronic recording devices. (d) Cavalier shall comply with all FCC regulations regarding scrambling or other encryption of signals. (e) The System shall function so that there is no significant deterioration in the quality of PEG Access signals or leased Access signals, either upstream or downstream, as compared with any other channel on the System. (f) Cavalier shall ensure that means are available to enable Subscribers to block out audio and video on any undesired channels on the System. (g) The System shall function so that any Subscriber can limit access to pay- per-view programming by ensuring that pay-per-view programming can only be activated by the positive action of the Subscriber using, for example, a private identification number or other individual selection procedure. (h) All programming delivered to Cavalier with closed captions shall be retransmitted by the System with the closed-caption signal included. (i) Cavalier shall work cooperatively with any services that allow hearing- impaired Subscribers to contact Cavalier by telephone. (j) System capabilities: The System shall utilize a copper (or better) fed DSL distribution network (or better) or fiber distribution network. (k) Cavalier shall maintain sufficient trucks, tools, testing equipment, monitoring devices and other equipment and facilities and trained and skilled personnel required to enable Cavalier to substantially comply with applicable law, including applicable customer service standards and including requirement or responding to system outages. (1) The system shall be designed to be capable of interconnecting with other cable systems in the Franchise Area. ", (m) The system shall, if technically capable, transmit in high definition any signal which is received in high definition. EXHIBIT B SALES OR USE TAX QUARTERLY REPORT QUARTER ENDED ,20_ REVENUE NUMBER OF GROSS REVENUE 5% YTD SOURCE SUBSCRIBERS TAX Basic Cable Service Expanded Basic Premium services Pay- Per-Channel Pay-Per-View Installation Shopping Channels Advertising Sales Equipment Rental Administrative Fees Other Income Other TOTAL REVENUE SOURCES MAY INCLUDE: INSTALLATION: Standard Installation Additional Outlet FM Service VCR Reconnection of Service A/B Switch Relocation Non-Standard Change of Service BASIC CABLE SERVICE: Basic Cable Service Bulk Rates Reduced Promotional Basic Commonly occurring normal Installation Installation on additional sets within a Subscriber's home Separate Installation of FM Service Installation of Converter to a VCR Reconnection of cable to a Subscriber's address Separate Installation of an A/B Switch Moving an outlet within a Subscriber's home Usually Installation of a commercial type of an account Charge for upgrading or switching a premium Service Revenue derived from Basic Cable Service Revenue derived from non-standard billings (i.e., apt. complex) Revenue derived from a discounted Basic Cable Service PAY-PER-VIEW: All Movies Events ADVERTISING: Sales Ad Production Production Income Tape Duplication Bill Stuffer OTHER: Returned Check Fees Pre-wired Cable Purchases Antenna Rental AlB Switch Late Fee OTHER: DOES NOT INCLUDE: Reimbursements Verified and submitted this Revenue derived from pay-per-view movies Revenue derived from special events (i.e., concerts, boxing matches, etc.) Revenue generated locally, regionally or nationally Revenue generated from the production of a locally produced commercial Revenue generated from the production of training tapes, studio rentals, personnel fees, or rental income from renting vans or equipment Revenue generated from duplication ofL.O. or access tapes Revenue generated as a result of providing a bill stuffer to an advertiser Revenue generated from charges on returned checks Revenue generated from the sale of Cable Service to Subscribers who pre-wire their home Any revenue derived from renting space on towers Revenue generated from sale of an AlB Switch Revenue generated from receiving a late fee Revenues from the Department of Transportation or other government entities for mandatory relocations of Cable System. Revenue from employee reimbursements for cash advances. day of ,20_ By: Its: EXHIBIT C CUSTOMER SERVICE STANDARDS 1. Customer service - Generally. These standards sets forth minimum customer service standards that Cavalier must satisfy. In addition, Cavalier shall at all times satisfy any additional or stricter requirements established by FCC regulations, or other applicable federal, state, or local law or regulation, as the same may be adopted or amended from time to time. 2. Telephone answering. (a) Trained company representatives shall be available to respond to customer telephone inquiries during normal business hours. (b) Cavalier shall use its best efforts to comply with the following standards. Cavalier shall not be subject to liquidated damages for noncompliance with the standards set forth in sections 2(b)(1) and 2(b)(2) below if, under normal operating conditions, the standards are met at least ninety percent (90%) of the time, measured quarterly. For purposes of this calculation and all pertinent reports, Cavalier may not omit data for conditions other then normal operating conditions unless Cavalier has explained to the City the time period and the conditions involved, and the City has approved that classification. (1) Telephone answering time shall not exceed thirty (30) seconds, and the time to transfer the call to a customer service representative (including hold time) shall not exceed an additional thirty (30) seconds. (2) A customer will receive a busy signal less than three percent (3%) of the time. (c) Cavalier shall obtain and maintain sufficient telephone lines and staffing to meet the requirements of this article. Cavalier shall not block incoming calls or otherwise use equipment or procedures that would result in an inaccurate account of all calls made to Cavalier; any such practice shall constitute fraud and shall be an independent violation of the customer service standards. (d) At least one person in responsible charge of Cavalier's operations in the City shall be available by local telephone during such hours as the business office is closed, and the telephone number of such person shall be supplied in advance to the City manager and to the City's police and fire divisions. 3. Installations and service calls. (a) Cavalier shall respond to service calls and complaints promptly and shall use its best efforts to comply with the following standards. Cavalier shall not be subject to liquidated damages for noncompliance with these standards if, under normal operating conditions, the standards are met at least ninety-five percent (95%) ofthe time, measured quarterly. (1) Cavalier shall commence repairs for service interruptions affecting more than one hundred (100) subscribers within two (2) hours after Cavalier becomes aware of the interruption, including Saturdays, Sundays, and legal holidays. (2) Cavalier shall commence repairs for all other service interruptions within twenty-four (24) hours after Cavalier becomes aware of the interruption, including Saturdays, Sundays, and legal holidays. (3) Cavalier shall commence work on all requests for service other than service interruptions by the next business day after it receives the request for service or otherwise becomes aware of the need for service. (4) Cavalier will maintain a local, toll-free or collect call telephone access line which will be available to its Subscribers twenty-four (24) hours a day, seven (7) days a week. Trained Cavalier representatives will be available to respond to customer telephone inquiries during Normal Business Hours. After Normal Business Hours, the access line may be answered by a service or an automated response system, including an answering machine. Inquiries received after Normal Business Hours must be responded to by a trained Cavalier representative on the next business day. (b) All service for which a completion time is not otherwise specified must be completed within a reasonable time after the date of the initial request, unless, for reasons beyond Cavalier's control, the work could not be completed in those time periods even with the exercise of all due diligence, in which case Cavalier shall complete the work in the shortest time possible. The failure of Cavalier to hire sufficient staff or to properly train its staff shall not justify Cavalier's failure to comply with this provision. (c) Cavalier shall investigate subscriber complaints referred by the City within five (5) business days. Cavalier 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 Cavalier to substantiate the request for additional time to resolve the problem. For purposes of this Section, "resolve" means that Cavalier 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. (d) Appropriate records shall be made of service calls, showing when and what corrective action was completed. Such records shall be available to the City during normal business hours and retained for not less than three (3) years. (e) Cavalier shall perform service calls, installations, and disconnects at least from 8 a.m. to 6 p.m. Monday through Friday and 8 a.m. to 5 p.m. Saturday. In addition, maintenance service capability enabling the prompt location and correction of major system malfunctions shall be available seven (7) days a week, twenty-four (24) hours a day, including Saturdays, Sundays, and holidays. (f) The appointment window for installations, service calls, and other installation activities shall be either a specific time or, at maximum, a four (4)-hour time block during the time from 8 a.m. to 6 p.m. Monday through Friday and 8 a.m. to 5 p.m. Saturday. Where a subscriber is unable to arrange for a service call or installation during that period, Cavalier shall also schedule service and installation calls at reasonable times outside that period. (g) Cavalier may not cancel an appointment with a subscriber after 6 p.m. on the business day preceding the appointment, unless the appointment is for a Monday, in which case Cavalier may not cancel after 5 p.m. on Saturday. If Cavalier's representative is running late for an appointment with a subscriber and will not be able to keep the appointment as scheduled, the subscriber will be contacted, and the appointment rescheduled, as necessary, at a time which is reasonably convenient for the subscriber. (h) Cavalier shall afford subscribers a three (3)-day right of rescission for ordering service over the cable system, except that such right of rescission shall end upon initiation of installation, whether physically or electronically, on the subscriber's premises or upon provision of service to the subscriber. (i) Under normal operating conditions, billing inquiries and requests for service, repair, and maintenance not involving service interruptions must be acknowledged by a trained customer service representative within twenty-four (24) hours, or prior to the end of the next business day, whichever is earlier. Cavalier shall respond to all other inquiries within five (5) business days ofthe inquiry. (j) Except as federal law may specifically require, no charge shall be made to the subscriber for repairs or maintenance of Cavalier-owned equipment or facilities, except for the cost of repairs to Cavalier's equipment or facilities where it can be shown that the equipment or facility was damaged by a subscriber. (k) With regard to mobility-limited subscribers, upon subscriber request, Cavalier shall arrange for pickup and/or replacement of converters or other Cavalier equipment at the subscriber's address or by a satisfactory equivalent (such as the provision of a postage-prepaid mailer). (1) All personnel, agents and representatives of Cavalier, including subcontractors that have occasion to deal directly with subscribers in the field shall carry photo identification badges, to be displayed upon request, when acting on behalf of Cavalier. (m) Cavalier shall provide advance notice, in light of the circumstances, prior to entry whenever desiring to enter any private property within the City. Work performed in easements and rights-of-way during system outage periods is exempted. 4. Notice. (a) When a subscriber is connected or reconnected to a cable system, and at any time upon request, Cavalier shall provide each subscriber with written information concerning the following. Copies of all such materials provided to subscribers shall also be provided to the City. (1) a written description of products and services offered, including a schedule of rates and charges, a list of channel positions, and a description of programming services, options, and conditions; (2) a written description of Cavalier's installation and service maintenance policies, delinquent subscriber disconnect and reconnect procedures, and any other of its policies applicable to its subscribers; (3) notice regarding subscribers' privacy rights pursuant to 47 U.S.C. S 551; (4) notice regarding subscribers' rights relating to home wiring. (b) Cavalier shall provide to all subscribers and to the City at least thirty (30) days' written notice before the implementation of any change in rates, services, channel positions, business hours, or legal holidays. Such notice shall state the precise amount of any rate change and briefly explain in accurate and readily understandable fashion the cause of the rate change (e.g., inflation, changes in external costs or the addition/deletion of channels). When the change involves the addition or deletion of channels, each channel added or deleted must be separately identified. (c) All Cavalier promotional materials, announcements, and advertising of residential cable service to subscribers and the general public, where price information is listed in any manner, shall clearly and accurately disclose price terms. In the case of pay- per-view or pay-per-event programming, all promotional materials must clearly and accurately disclose price terms and in the case of telephone orders, Cavalier shall take . appropriate steps to ensure that price terms are clearly and accurately disclosed to potential customers before the order is accepted. 5. Billing. (a) Bills shall be clear, concise, and understandable, and shall not be such as to mislead a reasonable subscriber as to any matter reflected on the bill. Bills must be fully itemized with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills shall clearly delineate all activity during the billing period, including optional charges, rebates, and credits. requested (or, iflater, the date on which any customer premises equipment provided by Cavalier is returned). (b) Cavalier shall provide at least three (3) days' written notice prior to discontinuance of service due to nonpayment and shall not terminate for nonpayment where the payment relates to service not yet provided. Where Cavalier has improperly discontinued service, it shall provide free reconnection. (c) Cavalier may immediately disconnect a subscriber if the subscriber is damaging or destroying Cavalier's cable system or equipment. After disconnection, Cavalier shall restore service after the subscriber provides adequate assurance that it has ceased the practices that led to disconnection, and paid all proper fees and charges, including any reconnect fees and amounts owed Cavalier for damage to its cable system or equipment. (d) Cavalier may also disconnect a subscriber that causes signal leakage in excess of federal limits. Disconnection may be effected after five (5) days' written notice to the subscriber, if the subscriber fails to take steps to correct the problem. Alternatively, Cavalier may disconnect a subscriber without notice where signal leakage is detected originating from the subscriber's premises in excess of federal limits, provided that Cavalier shall immediately notify the subscriber of the problem and, once the problem is corrected, reconnect the subscriber. 7. Customer service - Other. Cavalier shall keep such records as are necessary to show compliance with these customer service standards and FCC customer service standards. ,~ 1 ; ~ p ~.~. () ~ <-- -. () Ide -.c 2.::s Q)~ (0- <1>"'0 ~< ;To ~~ """I Q) (Q ro fU j , ~. ~ ;;, " [~ I ~ ,i{ Ii, ~ ,. ~p , ~.! i'i Ii :r\ -QJ ~'!.~ ~..-.., ===-..' " .-(b t'~ i EXHIBIT D INITIAL SERVICE AREA ~ - 36 - Item V.K.3.a/b/c/d. ORDINANCES ITEM #56367 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Ordinance to TRANSFER $3,900,000 within the FY 2006-07 School Board Operating Budget: a. $2,375,000 from Instruction to Operations and Maintenance b. $500,000 from Instruction to Transportation c. $825,000 from Instruction to Administration d. $200,000 from Instruction to the School Cafeteria Fund Voting: 9-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, 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: William R. "Bill" DeSteph and Robert M Dyer May 1, 2007 1 AN ORDINANCE TO APPROVE THE TRANSFER OF 2 $3,900,000 WITHIN THE FY 2006-07 SCHOOL 3 OPERATING BUDGET 4 WHEREAS, on April 17, 2007, the School Board adopted a 5 resolution recommending the transfer of funds from the 6 Instruction category to purchase needed materials, services, and 7 equipment. 8 9 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 10 OF VIRGINIA BEACH, VIRGINIA: 11 12 That as requested by the School Board, City Council hereby 13 approves the transfer of $3,900,000 from the Instruction 14 Category of the FY 2006-07 School Operating Fund as follows: 15 16 (1) $2,375,000 to the Operations and Maintenance Category 17 within the School Operating Fund; 18 (2) $500,000 to the Transportation Category within the 19 School Operating Fund; 20 (3) $825,000 to the Administration Category within the 21 School Operating Fund; and 22 (4) $200,000 to the School Cafeteria Fund. 23 24 Adopted by the Council of the City of Virginia Beach, 25 Virginia, on this --1stday of May, 2007. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: "b City Attor~ce CAI0377 V:\applications\citylawprod\cycom32\Wpdocs\D023\P001\O0031958.DOC R-3 April 23, 2007 -9IRGINIA BEACH CITY PUBLIC SCHOOLS AHEAD OF THE CURVE ~~~ Dianne P. Alexander, Clerk of the Board School Administration Building. 2512 George Mason Drive . P.O. Box 6038 . Virginia Beach, VA 23456-0038 , ::t SCHOOL BOARD ] Daniel D. Edwards Chairman District t . Centerville 1513 Beachview Drive VA Beach, VA 23464 495-3551 (hi. 717.0259 (c) Rita Sweet Bellitto Vice Chairman At-Large P,O, Box 6448 VA Beach, VA 23456 418-0960 (c) ] Todd C. Davidson At-Large 2424 Savannah Trail VA Beach, VA 23456 427-3330 (w) . 285-9409 (c) ::t Emma L. "Em" Davis District 5 - Lynnhaven 1125 Michaelwood Drive VA Beach, VA 23452 340-8911 (h) Patricia G. Edmonson District 6 - Beach 401-205 Harbour Point VA Beach, VA 23451 428-5240 (h) ] Edward F. Flsslnger, Sr, At-Large 412 Becton Piace VA Beach, VA 23452 486-4567 (h) :] Dan R. Lowe District 4 . Bayside 4617 Red Coat Road VA Beach, VA 23455 490.3681 (h) ] Lyndon S. Remias District 7 - Princess Anne 3225 Nansemond Loop VA Beach, VA 23456 630.6102 (c) Sandra Smith-Jones District 2 - Kempsville 705 Rock Creek Court VA Beach, VA 23462 490.8167 (h) Michael W. Stewart District 3 - Rose Hall 105 Brentwood Court VA Beach, VA 23452 498,4303 (hi. 445-4637 (w) Carolyn D. Weems At-Large 1420 Claudia Drive ~ VA Beach, VA 23455 464,6674 (h) SUPERINTENDENT James G. Merrill, Ed.D. 2512 George Mason Drive VA Beach, VA 23456 263.1007 RESOLUTION REGARDING FY 2006/07 SPENDING PLAN AND REQUEST FOR CATEGORICAL TRANSFER WHEREAS, On April 17, 2007, the Administration presented to the School Board a mid-year review ofthe FY 06/07 Operating Budget which indicated that approximately $7,900,000 million of $695,251,573 or 1.13% of the FY 06/07 appropriated funds were available; and WHEREAS, on Apri11?, 200? the Administration made recommendations regarding the uses of the FY 06/07 available funds; and; WHEREAS, the administration recommends that the $7.9 million be allocated as follows: . $ 1,000,000 for remaining ARC for GASB-45 . $ 1,500,000 for School Plant general maintenance and repair . $ 1,500,000 for the Bus Replacement cycle . $ 1,600,000 for 3 MS Distance Learning Labs, classroom projectors & printers . $ 1,800,000 for Servers, administrative computers for schools & departments . $ 300,000 for vehicle replacement . $ 200,000 for Food Service Replacement Equipment; and WHEREAS, the Board approves and affirms the recommended uses of the FY 2006/2007 Operating funds as presented by the Administration; and WHEREAS, categorical transfers are necessary to facilitate some of these purchases; and WHEREAS, any transfer of funds between categories must be approved by City Council prior to transfer and expenditure of funds by the School Board; now therefore be it RESOL VED: That the Board approves and affirms the recommended uses and directs the Administration to proceed with expending/encumbering/transferring items (after approval ofthe City Council), and be it further RESOLVED: That the Board requests the City Council to approve categorical transfers as follows . $ 2,375,000 from Instruction to Operations and Maintenance . $ 500,000 from Instruction to Transportation . $ 825,000 from Instruction to Administration . $ 200,000 from Instruction to Cafeteria Fund and be it further RESOL VED: That a copy of this resolution be spread across the official minutes of this Board, and the Clerk of the Board is directed to deliver a copy ofthis resolution to the Mayor, each member of City Council, the City Manager, and the City Clerk. SEAL Attest: !' ''''f , :J Detailed Description of Items in Resolution Regarding FY 2006-07 Spending Plan (Resolution Dated 4/17/07) :1 GASB-45 VBCPS' Annual Required Contribution (ARC) is $10.5 million - to-date we have set aside $4.5 million from Actual Over Budget funds, $4.5 million in the proposed 2007-08 Operating Budget and this $1 million will provide a combined total of $10.5 million 1,000,000 J School Plant General Maintenance and Repair Chiller replacement at W.T. Cooke Elem., auditorium HVAC replacement at Kempsville HS, design of football lighting pole replacements, design of replacement HVAC console units at Pembroke Elem., replacement of specialty sound systems at 18 schools, kitchen range hood fire suppression system at 7 schools, termite damage repairs at 4 schools, replace asbestos- containing fire doors in various locations, repair fire doors at Larkspur MS. repair portable classrooms being moved to Kemps Landing, remove asbestos, floor tile in the Plumbing Shop at Tech Center, remove peeling paint and repaint part of gym ceiling at Landstown HS. remove damaged canopies at Virginia Beach MS, purchase new forklift for Supply Services. 1,500,000 ] ] Bus Replacement (22 buses) Bus replacement cycle 1,500,000 ;j MS Distance Learning Labs (3), Classroom Projectors/Printers, Software/Hardware The installation of these 3 MS DL Labs will complete the build out of DL Labs in all MS and HS; and provide for classroom projectors and printers to enhance the instructional capability of teachers in the integration of technology. 1,600,000 j Servers, Administrative Computers for Schools and Departments Provides for new servers and server consolidation, access controls, and replacements for outdated computers in numerous schools and departments including updated software. 1,800,000 Vehicle Replacement Replacement vehilces for small vehicle fleet for high milage vehicles and highly used and in need of replacement 300,000 Food Service Replacement Equipment Replace current system with Point-of-Sale systems for elementary schools and replace outdated computers and software for cafeteria managers 200,000 7,900,000 j Total - 37 - ITEM V-L.J. APPOINTMENTS TEM # 56368 BY CONSENSUS, City Council RESCHEDULED: HEALTH SERVICES ADVISORY BOARD May 1, 2007 - 38 - ITEM V-L.2. APPOINTMENTS TEM # 56369 Upon NOMINATION by Vice Mayor Jones, City Council REAPPOINTED: Wanda J. Cooper James K. Hill Louis Rivera Prescott Sherrod Edwin G. Tirona John M. Williams 2 year term 06/01/2007-05/31/2009 MINORITY BUSINESS COUNCIL Voting: 10-0 Council Members Voting Aye: 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, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M Dyer May 1, 2007 - 39 - ITEM V-L.3. APPOINTMENTS TEM# 56370 Upon NOMINATION by Vice Mayor Jones, City Council REAPPOINTED: Fred G. Adams Richard "Tuck" Bowie Ruth Brooks Lillie R. Gilbert Steven A. Lurus Jeffrey L. Marks Charles R. Wall Kale S. Warren 3 year term 06/01/2007-05/31/2010 OPEN SPACE ADVISORY COMMITTEE Voting: 10-0 Council Members Voting Aye: 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, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M Dyer May 1, 2007 - 40- ITEM V-L.3. APPOINTMENTS TEM # 56371 Upon NOMINATION by Vice Mayor Jones, City Council REAPPOINTED: MPO James D. Price 3 year term 06/01/2007-05/31/2010 TOWING ADVISORY BOARD Voting: 10-0 Council Members Voting Aye: 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, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M Dyer 1 ne YUDIIC comment :"esston adjourned at 8: 20 P.M. May 1, 2007 May 1, 2007 -41 - Item v-a ADJOURNMENT ITEM ".56372 Mayor Meyera E. Oberndorf DECLARED the City Council Meeting ADJOURNED at 8:00 P.M. Beverly O. Hooks, CMC Chief Deputy City Clerk Qdgesrer, ' Meyera E. Oberndorf City Clerk Mayor City of Virginia Beach Virginia The Public Comment Session adjourned at 8:20 P.M. May 1. 2007 - 42- OPEN DIALOGUE Non Agenda Items John McMullen, 504 Ben Hogan Drive, spoke concerning the Operating Budget and the Transportation Authority. Mr. McMullen advised the residential tax assessments increased 21.4%, while the commercial increased 10.97%. Mr. McMullen advised he did not feel safe at the Resort. Mr. McMullen spoke in SUPPORT of the 78~ per $100 real estate tax rate Dr. Barry C. Ezell, 1504 Sloane Court, Phone: 467-1695, represented the Salem Woods Civic Association and eleven (J 1) other communities including Bellamy Plantation, Southampton Condos, Bellamy Woods, Bellamy Manor Estates, Coventry, Brigadoon, Larkspur, Lake Christopher, Bellwood Estates and New Castle. These communities oppose the rezoning of the Spence Farm. Traffic and the gridlock that will ensue with the 50% increase in density is a major concern. Public safety is also an issue. The Fourth Precinct is "over stretched" with no plan for the increase in density in this area. May 1, 2007