HomeMy WebLinkAbout10/8/2013 - Regularα¿²±µ» ݱ«²¬§
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INVOCATION: Pastor Russ Merritt
Fifth Avenue Presbyterian Church
PLEDGE OF ALLEGIANCE TO THE UNITED STATES FLAG
Disclaimer:
eting
shall be the voluntary offering of a private citizen, to and for the benefit of the
Board. The views or beliefs expressed by the invocation speaker have not been
previously reviewed or approved by the Board and do not necessarily represent
the religious beliefs or views of the Board in part or as a whole. No member of
the community is required to attend or participate in the invocation and such
decision will have no impact on their right to actively participate in the business of
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Good afternoon and welcome to our meeting for October 8, 2013. Regular meetings
are held on the second and fourth Tuesday at 3:00 p.m. Public hearings are held at 7:00
p.m. on the fourth Tuesday of each month. Deviations from this schedule will be
announced. The meetings are broadcast live on RVTV, Channel 3, and will be
rebroadcast on Friday at 7:00 p.m. and on Sunday at 4:00 p.m. Board of Supervisors
www.RoanokeCountyVA.gov.Our meetings are closed-captioned, so it is important for
everyone to speak directly into the microphones at the podium. Individuals who require
assistance or special arrangements to participate in or attend Board of Supervisors
meetings should contact the Clerk to the Board at (540) 772-2005 at least 48 hours in
advance. Please turn all cell phones off or place on silent.
A. OPENING CEREMONIES (3:00 p.m.)
1. Roll Call
B. REQUESTS TO POSTPONE, ADD TO OR CHANGE THE ORDER OF
AGENDA ITEMS
C. PROCLAMATIONS, RESOLUTIONS, RECOGNITIONS AND AWARDS
1. Proclamation declaring the month of October 2013 as Fire Prevention Month
in the County of Roanoke (Richard E. Burch, Jr., Chief of Fire and Rescue;
Gary Huffman, Fire Marshal)
2. Resolution expressing the appreciation of the Board of Supervisors of
Roanoke County to James Vodnik, Assistant Director of General Services
upon his retirement after eleven (11) years of service (Anne Marie Green,
Director of General Services)
D. BRIEFINGS
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E. NEW BUSINESS
1. Resolution approving an irrevocable election not to participate in the Virginia
Local Disability Program (VLDP) (Rebecca Owens, Director of Finance and
Anita Hassell, Assistant Director of Human Resources)
F. FIRST READING OF ORDINANCES
1. Ordinance to vacate two (2) twenty
dedicated by the subdivision plat for JAVA, LLC, recorded in Instrument
Number 2008-12233 and being Roanoke County Tax Map Number 087.10-
03-05.00.0000; Cave Spring Magisterial District (Tarek Moneir, Deputy
Director of Development)
2. Ordinance accepting and appropriating four (4) Division of Motor Vehicle
grants in the amount of $86,300 to the Police Department (Howard B. Hall,
Chief of Police)
3. Ordinance accepting and appropriating funds in the amount of $13,671 to the
-DJ-BX-1087, approved by the
Department of Justice, Bureau of Justice Assistance (Michael G. Winston,
Sheriff)
4. Ordinance appropriating funds in the amount of $28,119.26 to the Roanoke
County Public Schools for grants (Rebecca Owens, Director of Finance)
5. Ordinance appropriating funds in the amount of $3,090,244 for the Roanoke
County Criminal Justice Academy project (Rebecca Owens, Director of
Finance)
6. Ordinance approving a Ground Lease Agreement with the City of Roanoke to
construct and operate a Roanoke County Criminal Justice Training Academy
()
7. Ordinance approving and authorizing a cable television negotiated franchise
with Comcast Corporation (Anne Marie Green, Director of General Services)
G. APPOINTMENTS
1. Capital Improvement Program (CIP) Review Committee (appointed by
District)
2. Roanoke County Community Leaders Environmental Action Roundtable
(RCCLEAR)
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H. CONSENT AGENDA
ALL MATTERS LISTED UNDER THE CONSENT AGENDA ARE CONSIDERED
BY THE BOARD TO BE ROUTINE AND WILL BE ENACTED BY ONE
RESOLUTION IN THE FORM OR FORMS LISTED BELOW. IF DISCUSSION
IS DESIRED, THAT ITEM WILL BE REMOVED FROM THE CONSENT
AGENDA AND WILL BE CONSIDERED SEPARATELY
1. Approval of minutes September 10, 2013
2. Resolution expressing the appreciation of the Board of Supervisors of
Roanoke County to Melaine C. Haynes, Accounts Coordinator-Social
Services, upon her retirement after more than nineteen (19) years of service
3. Resolution requesting acceptance of Circleview Drive into the Virginia
Department of Transportation (VDOT) Secondary System
4. Resolution authorizing an amendment to the lease with StellarOne Bank to
provide for three additional parking spaces
5.Request for approval of change order for contract with Price Buildings for
repair of brick at the Roanoke County Courthouse
6. Request to accept the donation of a public drainage easement on the
property of Stanley Koper and Jadwiga Koper located on Westmoreland Drive
(Tax Map No. 077.13-04-37.00); Cave Spring Magisterial District
I. REQUESTS FOR WORK SESSIONS
J. REQUEST FOR PUBLIC HEARINGS
K.
L. REPORTS
1. General Fund Unappropriated Balance
2. Capital Reserves
3. Reserve for Board Contingency
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M. REPORTS AND INQUIRIES OF BOARD MEMBERS
1. Richard C. Flora
2.
3.
4. Charlotte A. Moore
5. Michael W. Altizer
N. WORK SESSIONS
1. Work session on proposed amendments to the Roanoke County Zoning
Ordinance (Philip Thompson, Deputy Director of Planning; John Murphy,
Zoning Administrator)
2. Work session to discuss strategies for enhanced litter awareness and
enforcement (Charlotte A. Moore, Vice Chairman; Richard L. Caywood,
Assistant County Administrator)
O. CLOSED MEETING, pursuant to the Code of Virginia as follows:
1. Section 2.2-3711.A.1, Personnel, namely discussion concerning
appointments to the Building Code Board of Adjustments & Appeals (Fire
Code Board of Appeals); South Peak Community Development Authority;
Western Virginia Regional Industrial Facility Authority
P. CERTIFICATION RESOLUTION
Q. ADJOURNMENT
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AT A REGULAR MEETING OF THE BOARD OF SUPERVISORS OF ROANOKE
COUNTY, VIRGINIA, HELD AT THE ROANOKE COUNTY ADMINISTRATION
CENTER ON TUESDAY, OCTOBER 8, 2013
RESOLUTION EXPRESSING THE APPRECIATION OF THE BOARD OF
SUPERVISORS OF ROANOKE COUNTY TO JAMES VODNIK,
ASSISTANT DIRECTOR OF GENERAL SERVICES, UPON HIS
RETIREMENT AFTER ELEVEN (11) YEARS OF SERVICE
WHEREAS, James Vodnik was hired on September 3, 2002 as Assistant Director of
General Services; and
WHEREAS, Mr. Vodnik retired on October 1, 2013, after eleven (11) years of
devoted, faithful and expert service with the County; and
WHEREAS, during his time serving Roanoke County, Mr. Vodnik was responsible
for a variety of capital projects, including an addition to the Bent Mountain Library, removal
of two deteriorated buildings, a new parking lot at the Roanoke County Courthouse and
creation of a heavy duty truck repair bay at the Public Service Center; and
WHEREAS, Mr. Vodnik served as the project manager for the Fleet Service Center,
which is not only the first LEED certified building constructed by Roanoke County, but also
a versatile and efficient building that has allowed the staff to provide exceptional service to
the County, the Western Virginia Water Authority, the Western Virginia Regional Jail,
Roanoke Valley Television (RVTV), Roanoke Valley Resource Authority (RVRA) and the
Western Virginia Emergency Medical Services (EMS) Council; and
WHEREAS, Mr. Vodnik oversaw environmental projects for the County, including
implementing the Environmental Management System, providing staff support for the
Board appointed RC-CLEAR committee, administrating the Federal Block Grant which
funded energy saving changes throughout county buildings, coordinating outreach projects
at the Energy Expo and Earth Day, and serving as staff liaison with ICLEI – Local
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Governments for Sustainability; and
WHEREAS, throughout all these efforts, Mr. Vodnik saved money for the citizens of
Roanoke County through energy reduction and insourcing of vehicle and equipment
repairs, while also helping to reduce the County’s greenhouse gas emissions; and
WHEREAS, Mr. Vodnik consistently performed his duties with a positive attitude, a
sense of humor and respect for his fellow employees and the citizens of Roanoke County.
NOW, THEREFORE, BE IT RESOLVED that the Board of Supervisors of Roanoke
County, Virginia expresses its deepest appreciation and the appreciation of the citizens of
JAMES VODNIK
Roanoke County to for eleven (11) years of capable, loyal and dedicated
service to Roanoke County; and
FURTHER, the Board of Supervisors does express its best wishes for a happy and
productive retirement.
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AT A REGULAR MEETING OF THE BOARD OF SUPERVISORS OF ROANOKE
COUNTY, VIRGINIA, HELD AT THE ROANOKE COUNTY ADMINISTRATION
CENTER ON TUESDAY, OCTOBER 8, 2013
RESOLUTION APPROVING AN IRREVOCABLE ELECTION NOT TO
PARTICIPATE IN VIRGINIA LOCAL DISABILITY PROGRAM (VLDP)
WHEREAS, by enacting Chapter 11.1 of Title 51.1 of the Code of Virginia, the
Virginia General Assembly has established the Virginia Local Disability Program
(“VLDP”) for the payment of short-term and long-term disability benefits for certain
participants in the hybrid retirement program described in Virginia Code § 51.1-169; and
WHEREAS, for purposes of VLDP administration, an employer with VLDP-
eligible employees may make an irrevocable election on or before November 1, 2013,
requesting that its eligible employees not participate in VLDP as of the VLDP effective
date of January 1, 2014, because it has or will establish, and continue to maintain,
comparable employer-paid disability coverage for such employees that meets or
exceeds the coverage set out inChapter 11.1 of Title 51.1 of the Code of Virginia, with
the exception of long term care coverage, by January 1, 2014; and
WHEREAS, it is the intent of County of Roanoke, 55180, to make this irrevocable
election to request that its eligible employees not participate in VLDP.
NOW, THEREFORE, IT IS HEREBY RESOLVED that County of Roanoke
irrevocably elects not to participate in VLDP because it has or will establish, and
continue to maintain, comparable employer-paid disability coverage for such
employees; and it is further
RESOLVED that, as an integral part of making this irrevocable election, County
of Roanoke certifies that it has or will establish, and continue to maintain, comparable
employer-paid disability coverage for such employees.
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Attachment 1
VRS Hybrid Plan Overview
Background:
VLDP (Virginia Local Disability Program) was created by 2012 General Assembly for
political subdivisions and schools covered by VRS Hybrid Plan which becomes
effective January 2014.
The Hybrid Retirement plan will apply to most new employees hired on/after January
1, 2014 and current employees who switch to the Hybrid Plan. Hazardous duty
employees covered by enhanced benefits are exempt from the Hybrid Plan and will
be covered under the VRS disability retirement.
Political subdivisions and school divisions are covered automatically under VLDP
unless the governing body makes an irrevocable election to opt out and provide a
comparable plan for employees. This decision was due September 1, 2013, unless
an extension was requested to November 1, 2013.
Hybrid Plan Components:
Part 1: Retirement
Retirement plan is comprised of:
Benefit
A Defined plan which provides a monthly benefit and is funded by the
o
employee and the employer; and
Contribution
A Defined plan with benefit balances based on contributions,
o
investment results and fees and is primarily funded by the employee.
Part 2: VLDP
The Hybrid plan eliminates the VRS Disability Retirement option and replaces
o
it with a Short and Long Term Disability plan
The STD must be paid by the employer through payroll and the LTD is a fully
o
funded plan.
The STD has a 1 year elimination period, a specific income replacement table
o
that is graded and based on years of service and whether the disability is
work related, and pays to a maximum of 6 months.
The LTD plan design is more typical of products available on the market,
o
however code does make specific requirements about the administration of
this benefit. For example, the premium must be paid by the employer, health
insurance must be continued in certain circumstances, VRS service credit
continues and the employer must continue to pay the employer contribution of
the Defined Contribution plan.
The new VRS Hybrid plan certainly poses several administrative challenges that every
locality must work through in the coming months. This is only the first step.
Exhibit “A”
DESCRIPTIONWIDTH
Feet
Existing Drainage Easement # 1 to be Vacated (Shown in Red)20 ft
Existing Drainage Easement #2 to be Vacated (Shown in Blue)20 ft
ROANOKE COUNTY
Drainage Easements to be Vacated for Tax Map # 087.10-03-05.00-0000
DEPARTMENT OF
COMMUNITY DEVLOPMENT
T A REGULAR MEETING OF THE BOARD OF SUPERVISORS OF ROANOKE
A
COUNTY, VIRGINIA, HELD AT THE ROANOKE COUNTY ADMINISTRATION
CENTER ON TUESDAY, OCTOBER 8, 2013
ORDINANCE TO VACATE TWO (2) TWENTY FOOT (20’) WIDE
DRAINAGE EASEMENTS DEDICATED FOR PUBLIC USE BY THE PLAT
FOR JAVA, LLC, RECORDED AS INSTRUMENT # 2008-12233 AND
LOCATED ON ROANOKE COUNTY TAX MAP #087.10-03-05.00-0000-
0000, CAVE SPRING MAGISTERIAL DISTRICT
WHEREAS, a plat entitled “Plat of new Tract ‘A’ and the dedication of 0.079 acre for
public street purposes on property of JAVA, LLC situated at 3464 Chaparral Drive” dated
August 22, 2008, and recorded in the Clerk's Office of the Circuit Court of Roanoke County,
Virginia, as Instrument #2008-12233 dedicated two (2) twenty foot (20’) wide public
drainage easements across a parcel identified as Roanoke County Tax Map #087.10-03-
05.00-0000; and
WHEREAS, the petitioner and current owner of said parcel, Fralin Holdings I, LLC,
has requested the vacation of two (2) twenty foot (20’) wide public drainage easements,
which were dedicated by the above-mentioned plat; and
WHEREAS, County staff has reviewed and approved the vacation of these two (2)
drainage easements as shown on the exhibit (Exhibit “A”) attached hereto and entitled
“Drainage easements to be Vacated for Tax Map #087.10-03-05.00-0000” prepared by the
Roanoke County Department of Community Development; and
WHEREAS, no other property owner will be affected by the vacation of these public
utility easements, and this vacation will not involve any cost to the County, and the affected
County departments and public utilities have raised no objection; and
WHEREAS, notice has been given as required by Section 15.2-2204 of the Code of
Virginia (1950, as amended); and
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THEREFORE, BE IT ORDAINED by the Board of Supervisors of Roanoke County,
Virginia, as follows:
1. That pursuant to the provisions of Section 18.04 of the Roanoke County
Charter, the acquisition and disposition of real estate can be authorized only by ordinance.
A first reading of this ordinance was held on October 8, 2013, and a second reading and
public hearing of this ordinance was held on October 22, 2013.
2. That pursuant to the provisions of Section 16.01 of the Roanoke County
Charter, the subject real estate (two (2) twenty foot (20’) wide public drainage easements,
which were dedicated by plat for JAVA, LLC, recorded as Instrument #2008-12233 (shown
on the attached Exhibit “A”) are hereby declared to be surplus and the nature of the
interests in real estate renders it unavailable for other public use.
3. That the subject real estate (two (2) twenty foot (20’) wide public drainage
easements, which were dedicated by plat for JAVA, LLC, recorded as Instrument #2008-
12233 (shown on the attached Exhibit “A”) be, and hereby are, vacated pursuant to
Section 15.2-2270 of the Code of Virginia,1950, as amended.
4. That all costs and expenses associated herewith, including but not limited to
publication, survey and recordation costs, shall be the responsibility of the Petitioner.
5. That the County Administrator, or any Assistant County Administrator, is hereby
authorized to execute such documents and take such actions as may be necessary to
accomplish the provisions of this ordinance, all of which shall be on form approved by the
County Attorney.
6. That this ordinance shall be effective on and from the date of its adoption, and a
certified copy of this ordinance shall be recorded in the Clerk's Office of the Circuit Court of
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Roanoke County, Virginia, in accordance with Section 15.2-2270 of the Code of Virginia
(1950, as amended).
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AT A REGULAR MEETING OF THE BOARD OF SUPERVISORS OF ROANOKE
COUNTY, VIRGINIA, HELD AT THE ROANOKE COUNTY ADMINISTRATION
CENTER ON TUESDAY, OCTOBER 8, 2013
ORDINANCE ACCEPTING AND APPROPRIATING FOUR (4) DIVISION
OF MOTOR VEHICLES GRANTS IN THE AMOUNT OF $86,300 TO THE
POLICE DEPARTMENT
WHEREAS, the following four (4) grants, from the Division of Motor Vehicles
(DMV), have been awarded to the Roanoke County Police Department. These grants
will be used to support the Roanoke County Police Department’s traffic enforcement
and training.
Grant in the amount of $29,300 to reduce alcohol related fatalities and serious
injuries in traffic crashes.
Grant in the amount of $12,000 to increase occupant protection.
Grant in the amount of $20,000 to increase traffic enforcement on Interstate
81.
Grant in the amount of $25,000 to provide for additional speed enforcement in
Roanoke County
WHEREAS, Section 18.04 of the Roanoke County Charter provides that funds be
appropriated by ordinance; and
WHEREAS, first reading of this ordinance was held on October 8, 2013, and the
second reading was held on October 22, 2013.
BE IT ORDAINED by the Board of Supervisors of Roanoke County, Virginia, as
follows:
1. That the sum of $86,300 is hereby accepted and appropriated from the
sources and for the purposes as follows:
a. The DMV grant budget to reduce alcohol related fatalities and serious
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injuries in traffic crashes will be increased by $29,300.
b. The DMV grant budget to increase occupant protection will be
increased by $12,000.
c. The DMV grant budget to increase traffic enforcement on Interstate 81
will be increased by $20,000.
d. The DMV grant budget to provide for additional speed enforcement in
Roanoke County will be increased by $25,000.
2. That this ordinance shall take effect from and after the date of adoption.
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AT A REGULAR MEETING OF THE BOARD OF SUPERVISORS OF ROANOKE
COUNTY, VIRGINIA, HELD AT THE ROANOKE COUNTY ADMINISTRATION
CENTER ON TUESDAY, OCTOBER 8, 2013
ORDINANCE ACCEPTING AND APPROPRIATING FUNDS IN THE
AMOUNT OF $13,671 TO THE SHERIFF’S OFFICE FROM FEDERAL
GRANT 2013-DJ-BX-1087, APPROVED BY THE DEPARTMENT OF
JUSTICE, BUREAU OF JUSTICE ASSISTANCE
WHEREAS, The Sheriff’s Office has received approval for a grant to provide
funds from the Department of Justice-Bureau of Justice Assistance to ensure the
continuation of the Weekend Inmate Work Force Program; and
WHEREAS, Section 18.04 of the Roanoke County Charter provides that funds be
appropriated by ordinance; and
WHEREAS, first reading of this ordinance was held on October 8, 2013, and the
second reading was held on October 22, 2013.
BE IT ORDAINED by the Board of Supervisors of Roanoke County, Virginia, as
follows:
1. That the sum of $13,671 is hereby accepted and appropriated from the
Department of Justice, Bureau of Justice Assistance Federal Grant 2013-DJ-BX-1087 to
the Sheriff Department for the continuation of the Weekend Inmate Work Force
Program; and
2. That this ordinance shall take effect from and after the date of adoption.
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ACTION NO. _______________
ITEM NO. _______F-4________
AT A REGULAR MEETING OF THE BOARD OF SUPERVISORS OF ROANOKE
COUNTY, VIRGINIA HELD AT THE ROANOKE COUNTY ADMINISTRATION CENTER
MEETING DATE:
October 8, 2013
AGENDA ITEM:
Ordinance accepting and appropriating $28,119.36 to Roanoke
County Public Schools for various grants
SUBMITTED BY:
Rebecca Owens
Director of Finance
APPROVED BY:
B. Clayton Goodman III
County Administrator
COUNTY ADMINISTRATOR'S COMMENTS:
SUMMARY OF INFORMATION:
1. The Virginia Department of Education funds our Project Graduation Summer
Academy through a reimbursement system. Project Graduation is a program that
offers SOL-based remediation and retesting for students in danger of not graduating
because they lack verified credits. Roanoke County Schools applied for and were
granted $5,813.10 for our Project Graduation Summer Academy.
2. The State recognizes credentialing reimbursements for Career and Technical
Education (CTE) industry certification examinations, licensure tests and
occupational competency assessments for students enrolled in CTE classes eligible
for such examinations. Roanoke County Schools were allocated $18,108.43.
3. The Virginia Department of Education has allocated monies for Workplace
Readiness Skills for the Commonwealth testing and/or other industry certification
assessments. Roanoke County Public Schools will receive $4,197.83 as a result of
the allocation and staff recommends allocation for the said amount.
FISCAL IMPACT:
1. The Instructional budget will be increased by $5,813.10.
2. The Career and Technical Education budget will be increased by $18,108.43.
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3. The Career and Technical Education budget will be increased by $4,197.83.
STAFF RECOMMENDATION:
Staff recommends approval of the first reading of this ordinance and scheduling of the
second reading on October 22, 2013.
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AT A REGULAR MEETING OF THE BOARD OF SUPERVISORS OF ROANOKE
COUNTY, VIRGINIA, HELD AT THE ROANOKE COUNTY ADMINISTRATION
CENTER ON TUESDAY, OCTOBER 8, 2013
ORDINANCE ACCEPTING AND APPROPRIATING $28,119.36 TO
ROANOKE COUNTY PUBLIC SCHOOLS FOR VARIOUS GRANTS
WHEREAS, The Virginia Department of Education funds the Project Graduation
Summer Academy which is a program that offers SOL-based remediation and retesting
for students in danger of not graduating because they lack verified credits. Roanoke
County Schools applied for and was granted $5,813.10 for the Project Graduation
Summer Academy; and
WHEREAS, The Virginia Department of Education recognizes credentialing
reimbursements for Career and Technical Education industry certification examinations,
licensure tests and occupational competency assessments for students enrolled in CTE
classes eligible for such examinations. Roanoke County Schools were allocated
$18,108.43; and
WHEREAS, The Virginia Department of Education has allocated $4,197.83 for
Workplace Readiness Skills for the Commonwealth testing and/or other industry
certification assessments to Roanoke County Public Schools; and
WHEREAS, Section 18.04 of the Roanoke County Charter provides that funds be
appropriated by ordinance; and
WHEREAS, first reading of this ordinance was held on October 8, 2013, and the
second reading was held on October 22, 2013.
BE IT ORDAINED by the Board of Supervisors of Roanoke County, Virginia, as
follows:
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1. That the sum of $28,119.36 is hereby accepted and appropriated to the
County School Board for Roanoke County for various grants from the Virginia
Department of Education.
2. That this ordinance shall take effect from and after the date of adoption.
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AT A REGULAR MEETING OF THE BOARD OF SUPERVISORS OF ROANOKE
COUNTY, VIRGINIA, HELD AT THE ROANOKE COUNTY ADMINISTRATION
CENTER ON TUESDAY, OCTOBER 8, 2013
ORDINANCE APPROPRIATING FUNDS IN THE AMOUNT OF
$3,090,244 TO THE CRIMINAL JUSTICE ACADEMY PROJECT
WHEREAS, Roanoke County staff is in negotiation with the City of Roanoke and
Shockey Roanoke LLC to expand the current City of Roanoke Police Academy facility to
accommodate the Roanoke County Criminal Justice Academy; and
WHEREAS, The County received a settlement from ITT Corporation which is
required to be used for law enforcement in Roanoke of which $2,502,482 remains; and
WHEREAS, The City of Roanoke has committed $250,000 towards the project
for additional parking; and
WHEREAS, a proposer’s fee of $13,500 was received from Howard Shockey &
Sons, Inc. as part of the Public Private Educational Facilities and Infrastructure Act
(PPEA) process; and
WHEREAS, the remaining funds for the project in the amount of $324,262 are
available for appropriation in the minor capital reserve: and
WHEREAS, Section 18.04 of the Roanoke County Charter provides that funds be
appropriated by ordinance; and
WHEREAS, first reading of this ordinance was held on October 8, 2013, and the
second reading was held on October 22, 2013.
BE IT ORDAINED by the Board of Supervisors of Roanoke County, Virginia, as
follows:
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1. That the sum of $3,090,244 is hereby appropriated for the purpose of the
Criminal Justice Academy project from the sources as follows:
a) $2,502,482 from ITT Corporation
b) $250,000 from the City of Roanoke
c) $13,500 from Howard Shockey & Sons, Inc. proposer’s fee for PPEA
process
d) $324,262 from Minor Capital Reserve
2. That this ordinance shall take effect from and after the date of adoption.
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AT A REGULAR MEETING OF THE BOARD OF SUPERVISORS OF ROANOKE
COUNTY, VIRGINIA, HELD AT THE ROANOKE COUNTY ADMINISTRATION
CENTER ON TUESDAY, OCTOBER 8, 2013
ORDINANCE APPROVING A GROUND LEASE AGREEMENT WITH
THE CITY OF ROANOKE TO CONSTRUCT AND OPERATE A
ROANOKE COUNTY CRIMINAL JUSTICE TRAINING ACADEMY
WHEREAS, the Board of Supervisors has received an unsolicited Public-Private
Education Facilities and Infrastructure Act (PPEA) proposal from Shockey Roanoke
LLC, a Virginia limited liability company, to design and construct a criminal justice
training academy for the County; and
WHEREAS, the Board of Supervisors of Roanoke County has determined that it
is in the public interest to lease from the City of Roanoke a portion of the property on
which the City’s existing police academy is located, and to construct an addition to that
academy on that property; and
WHEREAS, the Board has determined that the sharing of these two (2) facilities
will facilitate the efficient operation of each localities police academy; and
WHEREAS, Roanoke County is authorized to acquire property by lease by
Section 15.2-1800(A) of the Code of Virginia, and by Section 2.03 of the Roanoke
County Charter, and,
WHEREAS, Section 18.04 of the Roanoke County Charter directs that the
acquisition and conveyance of real estate interests be accomplished by ordinance, and
that the first reading of this ordinance was held on October 8, 2013, and that the second
reading and public hearing on this ordinance was held on October 22, 2013.
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BE IT ORDAINED BY THE BOARD OF SUPERVISORS OF ROANOKE
COUNTY as follows:
1. That the Board hereby authorizes and approves the Ground Lease
Agreement with the City of Roanoke for the construction and operation of a Roanoke
County criminal justice training academy.
2. That this lease is for a term of forty (40) years with an annual rental of one
dollar ($1). The lease property is located at 5401B Barnes Avenue, Roanoke, Virginia
24019. The property contains the Police Academy and the Roanoke City School Bus
garage and is designated by City of Roanoke Tax Map Number 6610101 and contains
20.631 acres.
3. That the County Administrator, or any Assistant County Administrators,
either of whom may act, are authorized to execute and deliver the Ground Lease
Agreement. The form of the Ground Lease Agreement presented to the Board is
hereby approved with such completions, omissions, insertions and changes as the
County Administrator may approve, whose approval shall be evidenced conclusively by
the execution and delivery thereof, all of which shall be approved as to form by the
County Attorney.
4. The County Administrator, or any such other Assistant County
Administrators, are hereby authorized and directed to execute, deliver and record, as
necessary, all other agreements, contracts, leases, and documents on behalf of the
County and to take all such further action as any of them may deem necessary or
desirable in connection with the establishment and operation of a criminal justice
training academy.
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5. That this ordinance shall be effective from and after the date of its
adoption.
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GROUND LEASE AGREEMENT BETWEEN THE CITY OF ROANOKE, VIRGINIA,
AND THE COUNTY OF ROANOKE, VIRGINIA
THIS GROUND LEASE made and entered into this ___ day of
CITY OF ROANOKE, VIRGINIA,
__________________________, 2013, by and between the
a political subdivision of the Commonwealth of Virginia, hereinafter referred to as “City” or
COUNTY OF ROANOKE
“Landlord”, and the , VIRGINIA, a political subdivision of the
Commonwealth of Virginia, hereinafter referred to as “County” or “Tenant.”
WITNESSETH:
WHEREAS, the Landlord owns certain property located in the City of Roanoke,
Virginia, designated as Tax Map No. 6610101, (“Premises”) which it uses for the operation of a
criminal justice training academy; and WHEREAS, Tenant has received an unsolicited PPEA
proposal from Shockey Roanoke LLC, a Virginia limited liability company (the “Contractor”), to
design and construct a criminal justice training academy for the Tenant; and
WHEREAS, Tenant desires to lease a portion of Tax Map No. 6610101 from Landlord to
construct a criminal justice training academy for the County’s use; and
WHEREAS, Landlord desires to lease such property to Tenant, and Tenant desires to
lease the same, upon the terms and conditions set forth in this Ground Lease; and
WHEREAS, City Council for the City of Roanoke, and the County Board of Supervisors
for the County of Roanoke, approved this Ground Lease between the parties pursuant to City
Council Resolution No._______________________, and the County Board of Supervisors
Ordinance No._______________________.
THAT for and in consideration of the mutual covenants contained herein, the Landlord
and Tenant hereby covenant and agree as follows:
PREMISES AND LEASE TERM
1. Lease of Site.
The Landlord hereby leases to the Tenant and the Tenant hereby
leases from the Landlord that certain occupied parcel of land legally described on Exhibit A
attached to this Ground Lease and incorporated herein by reference and hereinafter referred to as
the “Site”.
2. Use of Site.
During the term of this lease, the Tenant shall use the Site for the sole
and non-exclusive purpose of constructing, operating and managing a criminal justice training
academy, which shall be an addition to or expansion of the Landlord’s existing criminal justice
training academy located at the Premises. The Tenant has received an unsolicited PPEA proposal
from the Contractor to design and construct a criminal justice training academy for the Tenant.
It is the intent of the parties that this new construction shall be an addition to or expansion of an
existing criminal justice training academy of the Landlord. When construction is complete the
parties will operate and use the combined facilities for their mutual benefit. Tenant agrees that it
will not use the Site for any other purpose not related to construction and operation of a
criminal justice training academy without the written consent of Landlord.
3. Term.
This lease shall be for a term of forty (40) years commencing on
November 1, 2013, and ending on October 31, 2053.
4. Rental.
The Tenant shall to pay the Landlord rental for the Site in the amount of
One Dollar ($1) per year.
5. Site Leased As Is.
The Tenant agrees that the Site is leased to the Tenant in an
"as is" condition and without warranty of any kind as to merchantability, habitability, or fitness
for any particular use or purpose. Landlord makes no warranty or representation as to the title,
environmental or physical condition of the Site.
6. Permits.
The Tenant shall be solely responsible for obtaining any and all
necessary building permits and development approvals required by state, federal, and local law
for the construction of the criminal justice training academy addition or expansion. All such
permits and approvals shall be obtained at the sole cost and expense of the Tenant. The Tenant
agrees to submit all required permit applications to the Landlord within one year from the
Landlord's approval of the final design. The Tenant shall be responsible for diligently pursuing
all permit applications to conclusion.
7. Construction.
The Landlord will provide access to the Premises and the
Landlord’s criminal justice training academy for purposes of Tenant’s construction of its
criminal justice training academy addition or expansion. The Tenant shall provide the Landlord
with the design and construction plans prepared by the Contractor for its review and approval,
prior to commencement of any construction on the Site. Tenant agrees to comply with all
changes to the design and construction plans reasonably requested by the Landlord. Tenant
agrees that such plans must comply with all building and zoning requirements required by
applicable law.
2
8. Utilities.
The Tenant shall be responsible and promptly pay for its portion of
public and private utility services to and from the Site during the term of this Ground Lease,
including the costs of installation and connection of wiring and pipes, necessary to provide utility
service to the Site.
9. Control of Site.
During the term of this Ground Lease, the Tenant shall have joint
control over the Site along with the Landlord, provided, that the Landlord may enter the Tenant’s
improvements at all reasonable times for the purpose of inspecting the Tenant's compliance with
the terms of this Ground Lease.
10. Insurance.
The Tenant is self-insured and through its self-insurance program
provides coverages as follows:
(a)General liability self-insurance covering Tenant’s business operations at the Site.
(b)Property and casualty coverage for all of Tenant’s real and personal property to which
Landlord and its employees are granted access or given use, and all Tenant’s
infrastructure and improvements to the Site.
(c)Other insurances typically maintained within Tenant’s governmental activities.
(d)Contractor shall add both the Landlord and the Tenant as additional insureds on each
insurance policy required by the Tenant for this Project.
11. Liens.
The Tenant shall keep its interest in this Ground Lease, the Site, and the
Premises free from any liens arising out of any work performed or materials ordered or
obligations incurred by or on behalf of the Tenant and agrees to indemnify, hold harmless, and
defend the Landlord from any liability from any such lien.
12. Presence and Use of Hazardous Materials.
The Landlord or the Tenant shall
not use, dispose of, treat, generate, or store any substance designated as, or containing
components designated in such form as hazardous, dangerous, toxic, or harmful ("Hazardous
Substances").
13. Default.
Upon the Tenant's default under this paragraph (after expiration of the
30-day notice and cure period set forth in paragraph 13, and in addition to the rights and
remedies set forth elsewhere in this Ground Lease), the Landlord shall be entitled to, at the
Landlord's option, terminate this Ground Lease immediately; and recover any and all damages
associated with the default, including, but not limited to, cleanup costs and charges, civil and
criminal penalties and fees, and any and all damages and claims asserted by third parties.
3
The parties agree that Tenant shall have a period of time not to exceed thirty (30) days to
cure the default unless a longer period of time, as determined in the discretion of Landlord, is
needed to cure the default.
In the event such default is not cured upon written demand by Landlord, Landlord shall
have the right to terminate this Lease, and upon such termination all improvements made by
Tenant shall become the exclusive property of Landlord. Landlord agrees to reimburse Tenant
the remaining depreciated value of the improvements, provided that the Tenant can demonstrate
a good faith effort to cure such default.
14. Assignment.
The Tenant shall not assign, transfer or sublet (collectively "an
assignment") all or any portion of the Site without first obtaining the written consent of the
Landlord, which consent the Landlord may withhold in its sole discretion. Any assignment of
this Ground Lease shall be subject to the assignee assuming all of the Tenant's obligations
herein. Any attempted assignment without the Landlord's consent shall be void and confer no
right upon any third parties. Any consent to an assignment shall not constitute a waiver or
discharge of the provisions of this paragraph with respect to any subsequent assignment. The
Tenant shall remain obligated under the provisions of this Ground Lease in the event of a breach
by the assignee.
15. No Release.
The consent by the Landlord to an assignment shall not in any way
be construed to relieve the Tenant or the assignee or sublessee from obtaining the express written
consent of the Landlord to any further assignment or to release the Tenant from any liability
under this Ground Lease.
16. Termination.
In the event that the Tenant fails to comply with any provision of
this Ground Lease, where such failure shall continue for a period of thirty (30) days after written
notice of such failure has been given to the Tenant by the Landlord, the Landlord may, at its
option, immediately terminate this Ground Lease and any and all rights of the Tenant hereunder.
All such improvements made on the Site by Tenant will become the exclusive property of
Landlord upon the termination of this Ground Lease at no cost to Landlord.
17. Vacation of Premises –Improvements.
Should the Tenant fail to use the Site as
a police training facility or should the parties terminate this Ground Lease for other reasons,
the Tenant agrees to vacate the premises within thirty (30) calendar days. All improvements on
the Site made by the Tenant shall become the property of the Landlord upon the termination or
4
expiration of this Ground Lease, subject to the review and approval of the government of the
United States. The improvements will be constructed using federal asset forfeiture funds, and
the use of said funds and any improvements constructed with said funds, are subject to any and
all federal statutes and regulations.
18. Holding Over.
If the Tenant holds over after the expiration or termination of this
Ground Lease without the express written consent of the Landlord, the Tenant shall be a tenant at
sufferance only and shall be otherwise subject to the terms, covenants, and conditions of this
Ground Lease, insofar as applicable. In such event, the term of the Lease shall convert to an
annual, and may be terminated by either party on six (6) months notice.
19. Miscellaneous.
______________________________________________________________________________
__________________________________________________________________
20. No Partnership.
This lease agreement shall not be deemed to give rise to a
partnership or joint venture, and neither party shall have the authority to obligate the other
without the other’s written consent.
20.1. Entire Agreement.
This Ground Lease contains the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior agreements or
understandings among the parties with respect thereto. This Ground Lease may be amended only
by an agreement in writing signed by the parties.
20.2. Consent of Parties.
Unless otherwise provided herein, whenever consent or
approval of either party is required, that party shall not unreasonably withhold such consent or
approval.
20.3. Corporate Authority.
Each party covenants that proper governmental authority
has been obtained to execute this Lease.
20.4. Successors.
This Ground Lease shall be binding on and inure to the benefit of the
parties and their successors.
20.5. Status of Parties on Termination of Ground Lease.
Except as specifically
provided in this Ground Lease, if a party elects to terminate this Ground Lease as allowed in this
Ground Lease, on the date the Ground Lease terminates the parties shall be released from further
liabilities and obligations.
5
20.6. Exhibits -Incorporation in Ground Lease.
All exhibits referred to are attached
to this Ground Lease and incorporated by reference.
20.7. Waiver.
No purported waiver by the Landlord of any default by the Tenant of any
term, condition or covenant contained herein shall be deemed to be a waiver of such term,
condition or covenant unless the waiver is in writing and signed by the Landlord. No such waiver
shall in any event be deemed a waiver of any subsequent default under the same or any other
term, condition or covenant contained herein. The consent or approval by the Landlord to or of
any act by the Tenant requiring the Landlord's consent or approval shall not be deemed a waiver
of the requirements of the Landlord's consent or approval to or of any subsequent or similar acts
by the Tenant.
20.8. Duplicate Originals.
This Ground Lease may be executed in any number of
duplicate originals, each of which when fully executed by the Landlord and the Tenant shall be
deemed an original and all of which together shall be deemed the same lease.
20.9. Remedies Cumulative.
The various rights, options, elections, powers and
remedies contained in this Ground Lease shall be construed as cumulative and no one of them
shall be exclusive of any of the others or of any other legal or equitable remedy which either
party might otherwise have in the event of a breach or default in the terms hereof. The exercise
of one right or remedy by such party shall not impair its right to any other right or remedy until
all obligations imposed on the other party have been fully performed.
20.10. Governing Law.
This Agreement and the performance thereof shall be governed
by and enforced under the laws of the Commonwealth of Virginia, and if legal action by either
party is necessary for or with respect to the enforcement of any or all of the terms and conditions
rd
judicial circuit of the Commonwealth
hereof, then exclusive venue therefore shall lie in the 23
of Virginia.
20.11. Interpretation.
This Ground Lease has been submitted to the scrutiny of all
parties and their counsel, if desired, and it shall be given a fair and reasonable interpretation in
accordance with its words, without consideration to or weight given to its being drafted by any
party or its counsel. Paragraph headings are for convenience only and shall not be considered
when interpreting this Ground Lease. All words used in the singular shall include the plural; the
present tense shall include the future tense; and the masculine gender shall include the feminine
and neuter genders
6
20.12. Notices.
Any notices to be given hereunder by either party may be effected either
by personal delivery in writing or by mail, registered or certified, postage prepaid with return
receipt requested. Notices delivered personally shall be deemed communicated as of actual
receipt, mailed notices shall be deemed communicated three (3) business days after the deposit
of such notice with the United States Postal Service or with a recognized national overnight
courier. All notices shall be sent to the following address, unless actual notice in writing of a
different address for notices is received by the other party:
THE LANDLORD:
City Manager
City of Roanoke, Virginia
Noel C. Taylor Municipal Building, Suite 364
215 Church Avenue, S.W.
Roanoke, VA 24011
With a copy to:
City Attorney
City of Roanoke, Virginia
Noel C. Taylor Municipal Building, Suite 464
215 Church Avenue, S.W.
Roanoke, VA 24011
THE TENANT:
County Administrator
County of Roanoke
P.O. 29800
Roanoke, Virginia 24018
With a copy to:
County Attorney
County of Roanoke
5204 Bernard Drive
7
Roanoke, Virginia 24018
20.13. Binding Agreement.
The provisions of this Ground Lease will be binding upon,
and will inure to the benefit of, the respective heirs, legal representatives and successors of the
parties.
20.14. Nondiscrimination.
a. During the performance of this Agreement, the Parties agree as follows:
(1) The Parties will not discriminate against any contractor, employee, or applicant
for employment because of race, religion, color, sex, national origin, age, disability, or any other
basis prohibited by State law relating to discrimination in employment, except where there is a
bona fide occupational qualification reasonably necessary to the normal operation of the Parties.
The Parties agree to post in conspicuous places, available to employees and applicants for
employment, notices setting forth the provisions of this nondiscrimination clause.
(2) The Parties, in all solicitations or advertisements for employees placed by or on
behalf of the Parties, will state that each Party is an equal employment opportunity employer.
(3) Notices, advertisements, and solicitations placed in accordance with federal law,
rule, or regulation shall be deemed sufficient for the purpose of meeting the requirements of this
section.
b. The Parties will include the provisions of the foregoing Subsections a (1), (2), and
(3) in every contract or purchase order of over $10,000, so that the provisions will be binding
upon each contractor or vendor.
c. Pursuant to the Code of Virginia, Section 2.2-4343.1, be advised that the Parties
do not discriminate against faith-based organizations.
20.16. Drug-Free Workplace.
a. During the performance of this Lease, the Parties agree to (i) provide a drug-free
workplace for their employees; (ii) post in conspicuous places, available to employees and
applicants for employment, a statement notifying employees that the unlawful manufacture, sale,
distribution, dispensation, possession, or use of a controlled substance or marijuana is prohibited
in the workplace and specifying the actions that will be taken against employees for violations of
such prohibition; (iii) state in all solicitations or advertisements for employees placed by or on
behalf of the Parties that they maintain a drug-free workplace; and (iv) include the provisions of
8
the foregoing clauses in every subcontract or purchase order over $10,000, so that the provisions
will be binding upon each contractor or vendor.
b. For the purpose of this section, "drug-free workplace" means the Premises, and
the Parties’ employees are prohibited from engaging in the unlawful manufacture, sale,
distribution, dispensation, possession or use of any controlled substance or marijuana during the
performance of the Lease.
c. The Parties shall post a copy of the policy in a conspicuous place at the Premises
and assure that all personnel entering the jobsite are informed of the policy.
IN WITNESS WHEREOF
, the parties have executed this Lease on the date first set
forth above.
WITNESS: CITY OF ROANOKE, VIRGINIA
________________________________ By:
Printed Name and Title
Approved as to form:
City Attorney
Approved as to Execution:
City Attorney
WITNESS: COUNTY OF ROANOKE, VIRGINIA
________________________________ By:
B. Clayton Goodman, III
County Administrator
Approved as to form:
County Attorney
9
AT A REGULAR MEETING OF THE BOARD OF SUPEVISORS OF ROANOKE
COUNTY, VIRGINIA, HELD AT THE ROANOKE COUNTY ADMINISTRATION
CENTER ON TUESDAY, OCTOBER 8, 2013
ORDINANCE APPROVING AND AUTHORIZING A CABLE TELEVISION
NEGOTIATED FRANCHISE WITH COMCAST CORPORATION
WHEREAS, by Ordinance 121900-16 adopted on December 19, 2000, effective
January 1, 2001, a cable television franchise had previously been granted by the
County of Roanoke, Virginia., (“Franchise Authority”) to Blacksburg/Salem Cablevision
Inc., an entity (“Franchisee”) that is an indirect subsidiary of Adelphia Communications
Corporation (“Adelphia”); and
WHEREAS, Adelphia underwent bankruptcy proceedings in 2005; and
WHEREAS, by Resolution 101105-2 adopted on October 11, 2005, the Board of
Supervisors, Roanoke County as “Franchise Authority” consented to the Adelphia
Transaction and the Exchange Transaction whereby Comcast Corporation assumed all
the obligations of Adelphia and became the “Franchisee”; and
WHEREAS, the underlying original contract between Roanoke County and
Adelphia, now Comcast Corporation expired on October 16, 2010. Comcast, Roanoke
County and the City of Salem, who operate under the same mirror agreement continued
negotiations while the contract remained in a month to month, or holdover status; and
WHEREAS, Comcast, the City of Salem and Roanoke County’s negotiations
stalled in 2011 over a the localities’ demand for an upgrade to its system for both the
cable system and its Internet service (which is not covered by the Franchise
Agreement), and over Comcast not agreeing to keep a local customer service office
Page 1 of 3
either in Salem or in the Roanoke Valley, and greater expansion of service into rural
County areas; and
WHEREAS, in 2012 Comcast announced its upgrade, which is complete and
agreed to keep the Salem office open for an additional two years and then in a
convenient location after that period, and agreed to higher quality customer service
lines. The negotiations also led to Comcast agreeing to maintain the interconnection
with Cox for cablecast of Channel 3 and agreed that RVTV will remain on Channel 3
unless it becomes technically impossible. The Agreement also includes free service to
government and educational facilities, as well as providing an emergency alert system
available for the local governments; and
WHEREAS, Roanoke County was unsuccessful in obtaining extension of
service in more rural areas in West County, however, the density in the Comcast
agreement is the same as in the Cox agreement for Cox’s portions of the County; and
WHEREAS, since the negotiation and execution of the original underlying
Franchise Agreement, the Commonwealth of Virginia has enacted legislation which
provides default franchise agreements with cable companies which the cable
companies can opt to use instead of a negotiated franchise agreement, and that this
alternative process is more difficult for localities to negotiate favourable agreements
and;
WHEREAS, Roanoke County will continue to receive a franchise fee from
Comcast in the amount of five percent (5%) of annual gross revenues; and
WHEREAS, Roanoke County staff supports the execution of this Agreement; and
Page 2 of 3
WHEREAS, the City of Salem passed an ordinance on Monday, August 12,
2013, approving the a Negotiated Franchise Ordinance; and
WHEREAS, the first reading of this ordinance was held on October 8, 2013, and
the second reading and public hearing was held on October 22, 2013; and
WHEREAS, the County of Roanoke is authorized to enter into a cable franchise
agreement pursuant to Section 15.2-2108.20 of the Code of Virginia.
NOW THEREFORE, BE IT ORDANINED BY THE BOARD OF SUPERVISORS
OF THE COUNTY OF ROANOKE, VIRGINIA, as follows:
1. Upon review of the financial, legal and technical qualifications of the Franchisee,
and having determined them to be sufficient and appropriate to provide the
services, facilities and equipment necessary to meet the needs of its citizens,
Roanoke County desires to enact this ordinance regulating the construction,
operation and maintenance of a cable system in accordance with the terms and
conditions set forth in Exhibit A, the Cable Franchise Agreement.
2. Roanoke County, by its County Administrator, or Assistant County Administrator,
is hereby authorized to execute the attached Cable Franchise Agreement
establishing the rights and obligations of the Franchising Authority and the
Franchisee consistent with the provisions of Section 15.2-2108.20 of the Code of
Virginia.
3. That this ordinance shall become effective from and after the date of its adoption.
Page 3 of 3
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CABLE FRANCHISE AGREEMENT
entered into between the County of Roanoke, Virginia, a municipality within the Commonwealth
) and Comcast of
Connecticut/Georgia/Massachusetts/New Hampshire/New York/North Carolina/ Virginia/
Vermont
Having reviewed the financial, legal and technical qualifications of the Franchisee, and
having determined them to be sufficient and appropriate to provide the services, facilities and
equipment necessary to meet the needs of its citizens, the County desires to enter into this
Franchise Agreement with Franchisee for the construction, operation and maintenance of a Cable
System in accordance with the terms and conditions set forth below.
SECTION 1 Definitions
For the purpose of this Agreement, capitalized terms, phrases, words and abbreviations
shall have the means ascribed to them in the Code of Virginia, Title 15.2, Article 1.2, 15.2-
y
2108.19 and the Cable Communications Policy Act of 1984, as amended, 47 U.S.C. 521,et.
yy
seq.
1.1
1.2"Affiliate," in relation to any person, means another person who owns or controls, is
owned or controlled by, or is under common ownership or control with, such person.
1.3 "Basic Service" means the service tier that includes (i) the retransmission of local
television broadcast channels and (ii) public, educational, and governmental channels required to
be carried in the basic tier.
1.4 "Cable Operator" means any person or group of persons that (i) provides Cable
Service over a Cable System and directly or through one or more affiliates owns a significant
interest in such Cable System or (ii) otherwise controls or is responsible for, through any
arrangement, the management and operation of a Cable System.Cable Operator does not
include a provider of wireless or direct-to-home satellite transmission service that does not use
the public rights of way.
1.5 "Cable Service" means the one-way transmission to Subscribers of (i) video
programming or (ii) other programming service, and Subscriber interaction, if any, which is
required for the selection or use of such video programming or other programming service.
Cable Service does not include any video programming provided by a commercial mobile
service provider as defined in 47 U.S.C. Section 332(d).
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1.6 "Cablmeans the facility owned, constructed, installed, operated and
maintained by the Franchisee in the County , and consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment that is designed to provide
Cable Service that includes video programming and that is provided to multiple Subscribers
within the County..
1.7 "Customer" or "Subscriber" means a Person or user of the Cable System who lawfully
receives Cable Service therefrom with the Franchisee's express permission.
1.8 "Effective Date" means the date on which this Agreement, with any necessary
executed signatures, is enacted into law.
1.9 "FCC" means the Federal Communications Commission or successor governmental
entity thereto.
1.10 "Force majeure" means an event or events reasonably beyond the ability of the
Cable Operator to anticipate and control. "Force majeure" includes, but is not limited to, acts of
God, incidences of terrorism, war or riots, labor strikes or civil disturbances, floods, earthquakes,
fire, explosions, epidemics, hurricanes, tornadoes, governmental actions and restrictions, work
delays caused by waiting for utility providers to service or monitor or provide access to utility
poles to which the Cable Operator's facilities are attached or to be attached or conduits in which
the Cable Operator's facilities are located or to be located, environmental restrictions and
unavailability of materials or qualified labor to perform the work necessary.
1.11 "Franchise" means an initial authorization, or renewal thereof, issued by the
Franchising Authority, whether such authorization is designated as a franchise, permit, license,
resolution, contract, certificate, agreement, or otherwise, that authorizes the construction or
operation of a Cable System in the public rights of way.
1.12 "Franchise Agreement" or "Agreement" shall mean this Cable Franchise Agreement
and any amendments or modifications hereto.
1.13 "Franchise Area" shall mean the present legal boundaries of the County or its lawful
successor, transferee, designee or assignee thereof
1.14 (or Grantee) shall mean Comcast of
Connecticut/Georgia/Massachusetts/New Hampshire/New York/North
Carolina/Virginia/Vermont, LLC.
1.15 "Gross revenue" 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,
"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
î
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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 pay or collect franchise fees or
similar fees on the resale of the Cable Service; (vii) revenues received by any Affiliate or any
other Person in exchange for supplying goods or services used by 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 FCC.
1.17 "Ordinance" includes a resolution.
1.18 "Person" means any natural person or any association, firm, partnership, joint
venture, corporation, or other legally recognized entity, whether for-profit or not-for-profit, but
shall not mean the Franchising Authority.
1.19 "Public rights-of-way" (PROW or Public Ways) means the surface, the air space
above the surface, and the area below the surface of any public street, highway, lane, path, alley,
sidewalk, boulevard, drive, bridge, tunnel, park, parkway, waterway, easement, or similar
property in which the County or the Commonwealth of Virginia now or hereafter holds any
property interest, which, consistent with the purposes for which it was dedicated, may be used
for the purpose of installing and maintaining a Cable System. No reference herein, or in any
franchise, to "public rights-of-way" shall be deemed to be a representation or guarantee by the
County that its interest or other right to control the use of such property is sufficient to permit its
use for such purposes, and a Franchisee shall be deemed to gain only those rights to use as are
properly in the County and as the County may have the undisputed right and power to give. For
purposes of this Franchise, the term "public rights-of-way" shall also include any other parcels of
property that are owned by the County.
1.20 "Service Interruption" means a service outage affecting less than five Subscribers, or
a loss or degradation of either video or audio for one or more channels for one or more
Subscribers.
1.21 "Service Outage" means the complete loss of Cable Service to five or more
Subscribers served by the same trunk, node, or feeder line for a period of 2 hours 24 hours or
more.
1.22 "Transfer" means any transaction in which (i) an ownership or other interest in the
Cable Operator is transferred, directly or indirectly, from one Person or group of Persons to
another Person or group of Persons, so that majority control of the Cable Operator is transferred;
or (ii) the rights and obligations held by the Cable Operator under the Franchise granted under
í
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this Agreement are transferred or assigned to another Person or group of Persons. However,
notwithstanding clauses (i) and (ii) of the preceding sentence, a transfer of the Franchise shall not
include (a) transfer of an ownership or other interest in the Cable Operator to the parent of the
Cable Operator or to another affiliate of the Cable Operator; (b) transfer of an interest in the
Franchise granted under this Agreement or the rights held by the Cable Operator under the cable
Franchise granted under this Agreement to the parent of the Cable Operator or to another
Affiliate of the Cable Operator; (c) any action that is the result of a merger of the parent of the
Cable Operator; (d) any action that is the result of a merger of another Affiliate of the Cable
Operator; or (e) a transfer in trust, by mortgage, or by assignment of any rights, title, or interest
of the Cable Operator in the Franchise or the system used to provide cable in order to secure
indebtedness.
1.23 "Video programming" means programming provided by, or generally considered
comparable to, programming provided by a television broadcast station.
All terms used in this Agreement, unless otherwise defined herein, shall have the same
meaning as set forth in Sections 15.2-2108.19 of the Code of Virginia, and if not defined therein,
then as set forth in Title VI of the Communications Act, any portion of the Cable Act and Part 76
of the rules of the FCC; and if not defined therein, their common and ordinary meaning. In
addition, references in this Agreement to any federal or state law shall include amendments
thereto, as periodically enacted.
SECTION 2 Grant of Authority
2.1 Grant. The County of Roanoke hereby grants to the Franchisee under the Code of
Virginia, the Act and the Cable Act, a nonexclusive Franchise authorizing Franchisee to
construct and operate a Cable System in the Public Ways within the Franchise Area, and for that
purpose to erect, install, construct, repair, replace, reconstruct, maintain, or retain in any Public
Way such poles, wires, cables, conductors, ducts, conduits, vaults, manholes, pedestals,
amplifiers, appliances, attachments, and other related property or equipment as may be necessary
or appurtenant to the Cable System and to provide such Cable Service over the Cable System as
may be lawfully allowed. In addition, so to use, operate and provide similar facilities or
properties rented or leased from a public utility franchised or permitted to do business in the
County, provided that all applicable permits are applied for and granted, all fees paid and all
other County ordinances are otherwise complied with.
2.2 Term of Franchise. The Franchise granted hereby shall expire ten (10) years after its
Effective Date unless extended or lawfully terminated in accordance with its terms or other
applicable law.
2.3 Renewal.
Any renewal of this Franchise shall be governed by and comply with the
provisions of Article 1.2, Chapter 21 of Title 15.2 of the Code of Virginia and Section 626 of the
Cable Act, as amended.
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2.4 Reservation of Authority. Nothing in this Franchise Agreement shall be construed as
a waiver of any codes or ordinances of general applicability promulgated by the Franchising
Authority.Any conflict between the terms of this Franchise Agreement and any code or
ordinance may be resolved by a court of competent jurisdiction.
2.5Grant Not Exclusive: The Franchise and the right it grants to use and occupy the
Public Rights-of-Way to provide Cable Services shall not be exclusive, and the County 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 Person, or to make any such use themselves, at any time during
the term of this FranchiseAgreement.
2.5.1 The Grantee acknowledges and agrees that the Franchising Authority reserves
the right to grant one or more additional franchises to provide Cable Service within the Franchise
Area; provided, however, that no such franchise agreement shall contain terms or conditions
more favorable or less burdensome to the competitive entity than the material terms and
conditions herein. In the event that a multi-
provides Cable service to the residents of the County y under the authority of a state, federal, or
local franchise issued by the Franchising Authority, or the state or federal government that is
unavailable to the Franchisee, which, in the reasonable opinion of the Grantee, contains more
favorable or less burdensome terms or conditions than this Franchise Agreement, the Grantee
may serve notice on the County that it asserts its rights pursuant hereto to renegotiate any such
terms or conditions. Such negotiations shall commence within thirty (30) days of the
receipt of such notice, and upon conclusion of such negotiations, the County shall amend this
Franchise Agreement to include any more favorable or less burdensome terms or conditions.
2.5.2 In the event an application for a new cable television franchise is filed with the
Franchising Authority proposing to serve the Franchise Area, in whole or in part, the Franchising
Authority shall serve or require to be served a copy of such application upon the Grantee by
registered or certified mail or via nationally recognized overnight courier service.
SECTION 3 Constructing & Maintaining Facilities in Public Ways
3.1 General Obligations of Franchisee. The Franchisee shall be responsible for obtaining,
at its own cost and expense, all generally applicable permits, licenses or other forms of approvals
or authorizations necessary to construct, operate, maintain or repair the Cable System, or any
part thereof, prior to the commencement of any such activity. Construction, installation and
maintenance of the Cable System shall be performed in a safe, thorough and reliable manner
using materials of good and durable quality. All transmission and distribution structures, poles,
other lines and equipment installed by the Franchisee for use in the Cable System in accordance
with the terms and conditions of this Franchise Agreement, shall be located so as to minimize the
interference with the proper use of the PROW and the rights of reasonable convenience of
property owners who own property that adjoins any such PROWs.
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3.2 Conditions of Occupancy of PROW.
3.2.1 Relocation to Accommodate New Grades or Lines. If the grades or lines of any
Public Ways within the Franchise Area are lawfully changed at any time during the term of this
Agreement, then the Franchisee shall, upon reasonable advance written notice from the County
(which shall not be less than ten (10) business days) and at no cost to the County, protect or
promptly alter or relocate the Cable System, or any part thereof, so as to conform with any such
new grades or lines. If public funds are available to any other user of the Public Ways for the
purpose of defraying the cost of any of the foregoing, the Franchisee may avail itself of any such
funds. However, it is understood that there is no affirmative obligation on the part of the County
to determine the availability of public funds for defraying the cost of altering or relocating the
Cable System to conform to new grades or lines.Franchisee reserves its right to pass these
relocation costs through to its Subscribers in accordance with applicable law, including FCC rate
regulations.
3.2.2 Restoration of Public Ways. If, in connection with the construction, operation,
maintenance or repair of the Cable System, the Franchisee disturbs, alters or damages any Public
Ways, the Franchisee agrees it shall, at its own cost and expense, replace and restore any such
Public Way(s) to a condition comparable to the condition of the Public Way(s) existing
immediately prior to the disturbance. The
shall make the final determination as to the acceptability of repair and/or replacement of
damaged facilities. In performing any excavation work in the PROW, the Franchisee will
comply with all applicable requirements of the ordinances and, if applicable, in
accordance with all applicable Virginia Department of Transportation standards. It shall be the
responsibility of the Franchisee to obtain any required permits, to review all applicable
excavation, reconstruction, restoration, repair and permitting requirements and to become
familiar with such requirements before beginning any excavation, reconstruction, restoration or
repair in the PROW or upon private property. All of the foregoing works shall be conducted by
the Franchisee in accordance with good engineering practices by qualified maintenance and
construction personnel and in a manner so as to not to endanger or interfere in any manner with
any improvements being undertaken by the County or, if ever applicable, Virginia Department of
Transportation, and so as to not unduly hinder or obstruct pedestrian or vehicular traffic.
3.2.3. Construction Safety Standards. The Franchisee shall, at its own cost and
expense, undertake all necessary and appropriate efforts to maintain its work sites in a safe
manner in order to prevent failures and accidents that may cause damage, injuries or nuisances.
All work undertaken on the Cable System shall be performed in accordance with applicable FCC
or other federal and state regulations and in accordance with the National Electrical Safety Code
of the National Bureau of Standards and the National Electrical Code of the National Bureau of
Fire Underwriters, as updated and amended from time to time. The Cable System shall not
endanger or interfere with the safety of Persons or property in the Franchise Area.
3.2.4. Tree Trimming. The Franchisee shall have the responsibility and authority to
trim trees or other natural growth overhanging any portion of its Cable System in the Franchise
nt. All such
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sole cost and expense. For all planned trimming, the Franchisee shall provide the County with
at least two business days notice of the work to be performed and a description of such work.
For trimming of an emergency nature, including responding to storm damage, advance notice is
not required. The Franchisee shall be responsible for any damage and for the clean-up of all
debris caused by the trimming activities.
3.2.5 Underground Facilities. If, at any time when the Franchisee is engaging in the
construction or extension of the Cable System or any part thereof, all of the transmission and
distribution facilities of all of the respective public or municipal utilities in any region of the
distribution facilities underground; provided that such underground locations are actually capable
of accommodat
relocate aerial facilities underground as part of an undergrounding or neighborhood
beautification project, the Franchisee shall participate in the planning for the relocation of its
expenses shall be included in any computation of necessary project funding by the municipality
or private parties. The Franchisee shall be entitled to reimbursement of its relocation costs from
any public or private funds raised for such an undergrounding or beautification project and that
may be otherwise made available to other users of the Public Way. In the event no such public
or private funds exist, the Franchisee shall bear all costs and expenses connected therewith and
shall reserve its right to pass these costs through to its Subscribers in accordance with applicable
law, including FCC rate regulations.
3.2.6 Relocation at the Request of Third Parties. The Franchisee shall, upon
reasonable prior written request of any person holding a permit issued by the County to move
any structure, temporarily move its wires to permit the moving of such structure; provided that,
the Franchisee may impose a reasonable charge on any Person for the movement of its wires, and
such charge may be required by the Franchisee to be made in advance of the movement.Any
request made by a third party based on this provision shall provide the Franchisee with a
minimum of ten (10) business days notice.
3.2.7 Excavation in Compliance with County Ordinances. All excavation and
reconstruction work by a Franchisee in the PROW must be in compliance with the requirements
of the Ordinances, including all of the standards referenced therein, and, if ever
applicable, all VDOT standards. It shall be the responsibility of the Franchisee to obtain any
required permits, to review all applicable excavation, reconstruction, restoration, repair and
permitting requirements, and to become familiar with such requirements before beginning any
excavation, reconstruction, restoration or repair work in the PROW or private property.
3.2.8 Safe and Nonintrusive Construction & Improvement Practices.
Any equipment
or facilities installed by a Franchisee in the PROW shall be installed, located, erected, constructed,
reconstructed, replaced, restored, removed, repaired, maintained and operated in accordance with
good engineering practices, so as to not (l) endanger or interfere in any manner with improvements
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the County may deem appropriate to make; (2) interfere with the rights of any private property
owner; or (3) hinder or obstruct pedestrian or vehicular traffic.
3.2.9 Mandatory Removal Procedures. Whenever the County shall determine that it
is necessary in connection with the repair, relocation, or improvement of the PROW, the County
may require by written notification that any properties or facilities of the Franchisee be removed
or relocated. Within sixty (60) days after receipt of notification, unless the County extends such
period for good cause shown, the Franchisee shall remove or relocate its facilities to such place
and under such terms and conditions as specified by the County. The Franchisee shall bear all
expenses associated with the removal and relocation except that the County will issue, without
charge to the Franchisee, whatever local permits are required for the relocation of Franchisee's
facilities. If the Franchisee does not complete its removal or relocation within sixty (60) days or
such other period as authorized by the County , the County may take such actions as necessary
to effect such removal or relocation at the Franchisee's expense.
SECTION 4 Service Obligations
4.1 General Service Obligations
4.1.1 The Grantee shall make Cable Service available to every residential dwelling
unit within the Franchise Area where the minimum density is at least thirty (30) dwelling units
per mile and is within one (1) mile as measured in strand footage from the nearest point on the
Cable System trunk or feeder line from which a usable cable signal can be obtained. For
is within four hundred (400) feet of the PROW. Subject to the density requirement, Grantee
shall offer Cable Service to all new homes or previously unserved homes located within one
hundred and fifty (150ation rate.
4.1.2 The Grantee may elect to provide Cable Service to areas not meeting the
above density and distance standards. The Grantee may impose an additional charge in excess of
its regular installation charge for any service installation requiring a drop in or line extension in
excess of the above standards. Any such additional charge shall be computed on a time plus
materials basis, including a reasonable rate of return, to be calculated on that portion of the
installation that exceeds the standards set forth above. Such additional charge shall be paid by the
developer or landowner or customer requesting Cable Service in an area that does not meet the
density and distance standards.
4.2 New Developments.
Franchisee agrees to use commercially reasonable efforts to inform
itself of all newly planned developments with the County and to work with developers to cooperate
in pre-installation of facilities to support Cable Service. Should, through new construction, an area
within the Franchise Area meet the density requirement, the Franchisee shall provide Cable Service
to such area within six (6) months of receiving notice from the County that the density requirement
has been met.
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4.3 Programming.
The Franchisee shall offer all Customers a diversity of video
programming services.
4.4 No Discrimination. The Franchisee shall not discriminate or permit discrimination
between or among any Persons in the availability of Cable Services or other services provided in
connection with the Cable System in the Franchise Area. It shall be the right of all Persons to
receive all available services provided on the Cable System so long as such Person's financial or
other obligations to the Franchisee are satisfied, unless such Person has engaged in theft of
Franchisee's Cable Services, vandalism of its property or harassment of its representatives.
Nothing contained herein shall prohibit the Franchisee from offering senior citizen discounts,
bulk discounts, promotional discounts, package discounts, or other such pricing strategies as part
of its business practice. Franchisee shall assure that access to Cable Services is not denied to any
group of potential residential cable Subscribers because of the income of the residents of the
local area in which such group resides.
4.5 Availability of Maps to the County. Upon two weeks written notice by the County,
but no more often than annually, the Franchisee shall make available for viewing by the County,
clearly delineating all areas in which Cable
Service is then being made available to Subscribers within the Franchise Area.
4.6 Changes in Service. Franchisee agrees to provide the County and all Subscribers to
its Cable Service, a minimum of thirty (30) days written notice of any changes in the mix, nature
or quality of the Cable Services, in accordance with applicable law.
SECTION 5 Educational & Governmental Access Channels
5.1 Designation of Channels. Franchisee shall designate capacity on up to three (3)
channels for edu
County or its designee, such as an accredited educational institution. On the Effective Date of
this Agreement, the Franchisee shall furnish one (1) EG access channel for the purpose of
providing Governmental Access. In addition, the County reserves the right, within one year of
the Effective Date of this Agreement, to serve notice of its intent to activate an additional
channel for the purpose of providing Educational Access, which channel shall be used by the
County, and its public school system.. Upon receipt of this notice of intent, so long as timely
served, the Franchisee shall be afforded no fewer than one hundred eighty (180) days to initiate
carriage of the educational programming. If, upon the initiation of the Educational Access
Channel, the County thereafter is furnishing twelve (12) hours or more of weekday programming
for each of these two access channels, the County shall, in such event, have the further right to
request activation of a third EG channel, upon the serving of at least one hundred eighty (180)
days written notice to the Franchisee. In the event two EG channels become operational, the one
operating first-in-time shall be designated as a Governmental Access Channel, and the second as
an Educational Access Channel.
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5.2 Channel Positioning and Rights of Use. Use of a channel position for EG access
shall be provided on the Basic Service tier offered by the Franchisee, which shall be known,
designated, and advertised as Channel 3, unless the Franchisee provides notice and supporting
documentation that this designation is no longer technically feasible. If Channel 3 is not
available then the County must be advised of an alternate
approval.
regardless of whether the transmission format is analog or digital. In any event, the Franchisee
does not relinquish its ownership or control over any channel designated for EG use. In the
event the channel designation of a EG access channel is reassigned or changed by the Franchisee,
the Franchisee shall provide the County with at least thirty (30) days notice before such
reassignment, and shall pay the costs of any advertising or promotional materials attributable to
the channel reassignment, up to an amount not to exceed five thousand dollars ($5,000). An EG
access user acquires no property or other interest by virtue of the use of a channel so designated,
and is afforded no expectation of the continued use of a specific channel number under this
Agreement. The Franchisee shall have no editorial control over any EG channel, except that the
Franchisee may refuse to transmit any public access program (or any portion thereof) that
contains obscenity, indecency or nudity. The County alone shall be responsible for developing
and implementing rules for EG channel usage.
5.3 Definitions Relating to EG Channels. The following definitions apply to the
references made within this section:
5.4Educational Access Channel. An Educational Access Channel is a channel
designated for noncommercial use by educational institutions such as public schools, private
schools, community colleges, baccalaureate institutions, universities and other institutions of
higher learning.
5.5Government Access Channel. A Governmental Access Channel is a channel
designated for noncommercial use by the Franchising Authority for the purpose of disseminating
information about the workings of local government.
5.6 EG Compliance with FCC Technical Requirements. The Franchisee shall ensure that
all EG access channel signals carried on its system, regardless of the method used to acquire the
EG channels, shall comply with all applicable FCC signal quality and technical standards for all
classes of signals, as elsewhere set forth in this Agreement. The technical and signal quality of
all EG access channel signals shall be preserved and shall be of comparable quality as other
channels.
5.7 Facilities in Support of EG Operations. The Franchisee shall continue to provide and
maintain all existing communications facilities, including video return lines, between its headend
and the point(s) of origin of the EG channel programming.. Within one hundred twenty (120)
days of receipt of the written request of a second or third additional EG channel activation as
described in this Section, the Franchisee will provide a connection between a location designated
by the County and the Few channel to be activated for EG use, at
no charge to the County, so long as the connection between the new location designated by the
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County and the nearest usable video return insertion point in the Cable System is two hundred
(200) feet or less.
5.8 Interconnection with Other Cable Systems. The Franchisee shall design its Cable
System so that it may be interconnected with any other Cable Systems serving the County for the
purpose of sharing facilities for the production and distribution of EG channels. Interconnection
may be made via hard wire, terrestrial microwave link, satellite or any other appropriate
instrumentality.In the event a Franchise is issued by the County to a competing Cable Service
franchisee, stem
for purposes of obtaining EG Access ProEG Access channels
without entering into a mutually acceptable interconnection agreement with Franchisee.The
Franchisee shall interconnect with the Cox Cable System currently serving the County at no
charge to the County or to Cox.
SECTION 6 Communications Tax and Franchise Fees
6.1 Communications Tax.Franchisee shall comply with the provisions of Section 58.1-
645et seq.of the Code of Virginia, pertaining to the Virginia Communications Sales and Use
Tax, as amended (the "Communications Tax"), and Sections 6.2 through 6.6 of the Agreement
shall not have any effect, for so long as the Communications Tax or a successor state or local tax
that would constitute a Franchise Fee for purposes of 47 U.S.C. § 641, as amended, is imposed
on the sale of Cable Services by the Franchisee to Subscribers in the County .
6.2 Payment of Franchise Fee to County. In the event that the Communications Tax is
repealed and no successor state or local tax is enacted that would constitute a Franchise fee for
purposes of 47 U.S.C. § 641, as amended, Franchisee shall pay to the County a Franchise fee of
five percent (5%) of annual Gross Revenue, beginning on the effective date of the repeal of such
tax (the "Repeal Date"), in accordance with applicable law. Beginning on the Repeal Date, the
terms of Section 6.2 through 6.6 of this Agreement shall take effect. In accordance with Title VI
of the Communications Act, the twelve (12) month period applicable under the Franchise for the
computation of the Franchise fee shall be a calendar year. Such payments shall be made no later
than thirty (30) days following the end of each calendar quarter. Should Franchisee submit an
incorrect amount, Franchisee shall be allowed to add or subtract that amount in a subsequent
quarter, but no later than ninety (90) days following the close of the calendar year for which such
amounts were applicable; such correction shall be documented in the supporting information
required under Section 6.3 below.
6.3 Supporting Information. Each Franchise fee payment shall be accompanied by a brief
report prepared by a representative of Franchisee showing the basis for the computation, and a
breakdown by major revenue categories (such as Basic Service, premium service, etc.). The
County shall have the right to obtain further supporting information for each Franchise fee
payment, upon reasonable notice.
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6.4 Limitation on Actions for Franchise Fees. The period of limitation for recovery of
any Franchise fee payable hereunder shall be three (3) years from the date on which payment by
Franchisee is due.
6.5 Bundled Services. If Cable Services subject to a Franchise fee, or any other fee
determined by a percentage of the Cable Operator's gross revenues in a locality, are provided to
Subscribers in conjunction with other services: the fee shall be applied only to the value of these
Cable Services, as reflected on the books and records of the Cable Operator in accordance with
rules, regulations, standards or orders of the FCC or the Virginia State Corporation Commission,
or generally accepted accounting principles, if not inconsistent thereto. Any discounts resulting
from purchasing the services as a bundle shall be reasonably allocated between the respective
services that constitute the bundled transaction and not be inconsistent with the rates advertised
by Franchisee for Subscribers within the County.
6.6 Books and Records Regarding Franchise Fees. Subject to any confidentiality
requirements of this Agreement, the County , or such Person or Persons designated by the
County , shall have the right to inspect and copy records and the right to audit and to re-compute
any amounts determined to be payable under this Franchise, without regard to by whom they are
held. If an audit discloses an overpayment or underpayment of Franchise fees, the County shall
notify the Franchisee of such overpayment or underpayment within ninety (90) days of the date
the audit was completed. The County, in its discretion and in conjunction with the Franchisee,
shall determine the completion date for any audit conducted hereunder. Audit completion is not
to be unreasonably delayed by either party. Subject to any confidentiality requirements as set
forth elsewhere in this Franchise Agreement, the Franchisee shall be responsible for providing to
the County all records necessary to confirm the accurate payment of Franchise fees. The
Franchisee shall maintain such records for the current year plus three (3) years. The
audit expenses shall be borne by the County unless the audit determines the payment to the
County should be increased by more than five percent (5%) in the audited period, in which case
the reasonable costs of the audit, not to exceed three thousand dollars ($3,000), shall be paid by
the Franchisee to the County within thirty (30) days following written notice to the Franchisee
by the County of the underpayment, which notice shall include a copy of the audit report. If re-
computation results in additional revenue to be paid by Franchisee to theCounty , such amount
shall be subject to an interest charge in accordance with the standard rate for
computing interest charges on late payments.
SECTION 7 Customer Service and Billing Practices
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7.1 Customer Accessibility & FCC Records Availability. The Franchisee shall maintain
a local office, or agent, at a location which is conveniently located for customers residing in the
County, subject to County approval. Pursuant to Part 76, Subpart U, §1700(b) of the rules of
the FCC, as be amended from time to time, all records, reports and documents required to be
maintained in the public inspection file of the Franchisee shall at all times be maintained at the
F as herein described.At all times during the term of this Agreement, the
following documents and records shall be subject to public review in the public inspection file: i)
requests for cablecast time made by or on behalf of a candidate for public office, together with
appropriate notations showing the disposition made on each request; and the charges made, if
any, in the event the request was granted; ii) record of free time provided candidates if such time
was made available; iii) copies of any Equal Employment Opportunity ed
to be filed with the FCC; iv
v) proof of performance test data required
gnal leakage logs and repair reports as required by
designation of any new principal headend; and, viii) all other records and reports as required by
Section 1700(b) of the rules of the FCC, as amended.
7.2 Live Local Telephone Communications Capability. A listed local or toll free
telephone number shall be made available to Subscribers at all times. Technology employed by
the Franchisee in processing calls through its call centers, wherever located, shall provide
information viewable by call center personnel identifying the point of origination of the call, the
programming and price options of services and equipment available to Subscribers in the
County, and the availability of new services in the County. Franchisee shall further comply with
the FCC Customer service Standards pursuant to 47 CFR section 76.309.
7.3 Responsiveness of Franchisee to Initial Subscriber Inquiry. Telephone answering
time shall not exceed thirty (30) seconds and the time to transfer the call to a customer service
representative shall not exceed an additional thirty (30) seconds beyond completion of the
Further, with the exception of Force Majeure circumstances,
7.4 Resolution of Installation and Service Requests. The Franchisee shall complete all
standard installations located within its Service Area within seven (7) business days after the
order is placed. Franchisee shall respond to interruptions in service and outages affecting more
than one hundred (100) Subscribers within two hours after the Franchisee becomes aware of the
interruption, including Saturdays, Sundays and legal holidays. The Franchisee shall respond to
all other Service Interruptions or Service Outages within 24 hours after the Franchisee becomes
aware of the interruption, including Saturdays, Sundays and legal holidays. The Franchisee shall
respond to all requests for service other than Service Interruptions or Service Outages by the next
business day after receiving the request for service or otherwise becoming aware of the need for
a repair of service. The Franchisee shall use commercially reasonable efforts to comply with the
foregoing standards relating to service calls and complaints. The Franchisee shall not be subject
to sanction for noncompliance with the foregoing standards if, under normal operating conditions
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and not conditions resulting from a Force Majeure, the standards are met at least ninety-percent
(90%) of the time upon becoming aware of the need for service.
7.5 Service Call Hours of Operation. Franchisee shall perform service calls, installations
and disconnects at least between the hours of 9:00 a.m. and 6:00 p.m. Monday through Friday
and 9:00 a.m. and 5:00 p.m. Saturday. Where aSubscriber is unable to arrange for a service call
or installation during that period, the Franchisee shall also schedule service and installation calls
at reasonable times outside that period.
7.6 Service Call Cancellations. The Franchisee may not cancel an appointment with a
Subscriber after 6:00 p.m. on the business day preceding the appointment, unless the
appointment is for a Monday, in which case the Franchisee may not cancel after 5:00 p.m. on
able to keep the appointment with the Subscriber as scheduled, the Subscriber will be contacted,
and the appointment rescheduled, as necessary, at a time which is reasonably convenient for the
Subscriber.
7.7 Photo-Identification. All personnel, agents and representatives of the Franchisee,
including sub-contractors, who 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 the
Franchisee.
7.8 FCC Customer Service Compliance. Throughout the term of its Franchise, the
Franchisee shall maintain all parts of its Cable System in good working condition. Subject to
notification and request by affected Subscribers, and to reasonable verification by the Franchisee
of any reported Cable Service outage, the Franchisee agrees to provide a pro-rata refund or, at
its option, an equivalent credit of the fee charged to any Subscriber for each calendar month in
which such Subscriber has experienced more than twenty four (24) hours of Cable Service
outage, with the refund or credit being based on the total hours of outage compared to the total
number of hours available in the month to which the rebate or credit applies. The Franchisee
agrees to keep a record in its offices of every complaint received and the manner or disposition
thereof. Complaint records shall be kept for not less than two (2) calendar years. The
Franchisee shall make information pertaining to its complaint records available to the County
upon written request, with confidential information redacted, for review and inspection during
normal business hours. The County may, at its election and expense, make photocopies of such
complaints.
7.9 & Identification of Fees. Bills to Subscribers shall be
clear, concise and straightforward. Bills are to be fully itemized including separate breakouts for
Basic Service, expanded Basic Service and premium service charges and equipment charges.
The Franchisee may identify as a separate line item on each regular bill of each Subscriber (i) the
amount of the total bill assessed as a Franchise fee, or any equivalent fee or Communications
Tax, and the County as recipient of such fee or tax; (ii) the amount of the total bill assessed to
satisfy any requirements imposed on the Franchisee, including those to support educational or
governmental access facilities, including institutional networks; and (iii) the amount of any other
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fee, tax, assessment, or charge of any kind imposed by any governmental entity on the
transaction between the Franchisee and the Subscriber.
7.10
allow, no charge shall be made to the Subscriber for repairs or maintenance of Franchisee-owned
equipment or facilities.
7.11 Refunds. Refund checks or credits to Subscribers shall be issued promptly, but no
later than the Subscriber
of the equipment supplied by the Franchisee. No charge may be made by the Franchisee for any
product or service that the Subscriber has not actually confirmed he or she wishes to receive.
7.12 Service Disconnects and Downgrades. The Franchisee shall promptly disconnect or
downgrade any Subscriber upon the Subscriber
for such Subscriber-initiated disconnection or downgrade. Any security deposit or other credits
or funds due the Subscriber shall be promptly refunded on disconnected accounts after any
customer premises equipment provided to the Subscriber by the Franchisee has been returned to
the Franchisee. A Franchisee may immediately disconnect a Subscriber if the Subscriber is
damaging or destroying the Franchisee Cable System or equipment. A Franchisee may also
disconnect a Subscriber that causes signal leakage in excess of limits imposed by the FCC.
7.13 Annual Notice of Service. Franchisee shall provide written information on each of
the following areas at the time of the installation of service, at least annually to Subscribers, and
at any other time upon request: (i) products and services offered; (ii) prices and options for
programming services and conditions of subscription to programming and other services; (iii)
installation and service maintenance policies; (iv) instructions on how to use the services
provided by Franchisee; (v) refund policy; and, (vi) billing and complaint procedures, including
This information shall include a description of parental control policies, specifically, that
Franchisee provides parental control devices to all Subscribers who wish to be able to block any
objectionable channels(s) of programming from entering the Subscriber
7.14 Changes in Rates or Programming. Franchisee shall notify Subscribers of any
change in rates, programming services or channel positions in writing, including the separate
identification of any channel added or deleted. Notice must be given to Subscribers a minimum
of thirty (30) days in advance of such changes if the change is within the control of the
Franchisee. In addition, and in accordance with applicable law, Franchisee shall notify
Subscribers Thirty (30) days in advance of any significant changes in the other information
required by subsection 7.13 above.
SECTION 8 Monitoring of Franchisee Performance
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8.1 Oversight by Franchise Authority. The Franchising Authority shall have the right to
oversee, regulate and inspect the operation of the Cable System in the Franchise Area, in
accordance with applicable law. The right to inspect shall be exercised upon the furnishing of
reasonable notice by the County and will be s
or agents whose presence shall be required at the time of any such inspection.All costs of any
inspection by the County will be borne solely by the County..
8.2 Compliance with FCC Technical Standards. The Franchisee shall comply with all
applicable technical standards of the FCC as published in Subpart K of 47 C.F.R. §76. To the
extent those standards are altered, modified, or amended during the term of this Franchise, the
Franchisee shall comply with such altered, modified or amended standards within such time as
shall be allowed by the FCC for compliance with such revised standards. The Franchising
Authority shall have, upon written request, the right to obtain a copy of tests and records required
to be performed pursuant to the FCC's rules.
8.3 Maintenance of Records. The Franchisee shall maintain records as required to show
compliance with the operational and service standards set forth in state law, FCC Technical and
Customer Service Standards and this Agreement and as required to demonstrate that such
compliance has been achieved as more particularly described in subsection 8.4, below.Failure
to maintain records of complaints as required shall constitute a violation of this Agreement and
may result in the accrual of liquidated damages set forth in Section 12.10 of the Enforcement
Procedures
limitation, Subscriber grievances about service interruptions, inadequate responsiveness to
Subscriber requests for service or repair, employee discourtesy, lack of billing clarity, inadequate
notice regarding changes to programming packages and channel availability, and all other
aspects of service and operations, whether or not the subject of the complaint requires a service
call.
8.4 Records Required. The records required to be maintained by Franchisee shall be in
accordance with applicable state and federal law and shall include, without limitation: (i) records
of Service Outages and Service Interruptions; (ii) records of service calls for repair and
maintenance; (iii) records of installation and requests for expanded service; and, (iv) records of
all written complaints of any nature relating to the provisioning of Cable Service. The records
described herein shall be maintained for a period of two (2)calendar years after their receipt by
Franchisee.
8.5 Compliance Reports & Periodic Evaluations. Within Ninety (90) days after receipt of
a written request by the County, the Franchisee shall submit a written year-end report to the
County. The written request from the County shall include specific questions and/or issues the
Franchisee is to address in its report. Such report may include (i) significant projects undertaken
by the Franchisee within the previous year, including Cable System improvements, new
construction or programming enhancements; (ii) summaries of the number and nature of
complaints that may have been received by the Franchisee in the course of the year relating to
outages and service interruptions, billing issues, service installations and other matters relating to
the operation of the Cable System in the County. Franchisee shall not be requested to disclose
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information that is confidential or proprietary in nature.Within thirty (30) days of the
completion of the evaluation process, the County shall provide the Franchisee with a
comprehensive written report of its findings, clearly stating that the Franchisee is or is not in
compliance with the Franchise, and, if not, shall clearly identify those alleged areas of non-
compliance.
8.6 Quarterly Reports Demonstrating Compliance with Service Standards. During the
first year of the Franchise term, upon written request by the County, no later than thirty (30) days
after the end of each calendar quarter, the Franchisee shall submit a written report to the County
regarding complaints and service requests received by each call center serving the County,
containing such categories of information as the Franchisee records in the normal course of
business, which shall include: (i) A report showing the number of service calls received by type
during that quarter, including any property damage to the extent such information is available to
the Franchisee, and any line extension requests received during that quarter; (ii) A report
showing the number of outages for that quarter, identifying separately each outage of one or
more nodes for more than one hour at a time, the date and time it occurred, the date and time
when repairs began, its duration, the map area, and, when available to the Franchisee, number of
homes affected; (iii) A report showing the Franchisee's performance with respect to the customer
service standards set forth in Section 7 of this Agreement and all applicable customer service
standards established in 47 C.F.R. §76.309(c), signed by an officer or employee certifying its
performance with these customer service standards.
8.7 Included in this quarterly report will be the following information: a) Percentage of
telephone calls that were answered by a live customer service representative within 30 seconds;
b) Percentage of telephone calls received that were abandoned before being answered by a live
customer service representative; c) Average hold time for telephone calls received; d) Percentage
of time when all incoming trunk lines were in a busy condition; e) Percentage of standard
installations performed within seven business days; and f) Percentage of repair calls for Service
Interruptions responded to within 24 hours.
8.8 Comprehensive Performance Evaluations. In addition to the reports described
previously, in the event the County reasonably believes a violation has occurred, based upon
communications received directly from its citizens, the County may schedule acomprehensive
performance evaluation upon no less than ninety (90) days written notice provided to the
Franchisee. Such evaluations shall require the cooperation of the Franchisee, including, but not
limited to, making available to the County the records it maintains pursuant to this Section and
all other non-proprietary statistics and information that demonstrate the performance of
Franchisee when measured against the operating standards for service and responsiveness set
forth in this Agreement. Further, the Franchisee shall make available any records and test
measurements in the possession of Franchisee that are required to be maintained under the rules
and regulations of the FCC. The public shall be invited to participate in the comprehensive
performance evaluation process. Such comprehensive performance evaluations may be
undertaken by the County at any time within the first eighteen (18) months after the Effective
Date of this Agreement and at additional intervals no more frequently than triennially thereafter.
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8.9 Inspection of Books and Records Generally. Upon reasonable written notice to the
Franchisee and with no less than thirty (30) business days' written notice to the Franchisee, the
County shall have the right to inspect Franchisee's books and records pertaining to Franchisee's
provision of Cable Service in the Franchise Area at any time during normal business hours and
on a non-disruptive basis, as are reasonably necessary to ensure compliance with the terms of
this Franchise. Such notice shall specifically reference the section or subsection of the Franchise
Agreement which is under review, so that Franchisee may organize the necessary books and
records for appropriate access by the County. Franchisee shall not be required to maintain any
books and records for Franchise compliance purposes longer than the current year plus three (3)
years, and shall not be required to disclose information that the Franchisee determines is
proprietary in nature.
SECTION 9 Transfer of Control of Cable System or Franchise
9.1 Prior Approval Required for Transfer. No transfer of this Franchise shall occur
without the prior written consent of the Franchising Authority, which consent shall not be
unreasonably withheld, delayed or conditioned. No transfer shall be made to a Person, group of
Persons or Affiliate that is not legally, technically and financially qualified to operate the Cable
System and satisfy the obligations hereunder. No consent shall be required, however, for (i) a
transfer in trust, by mortgage, hypothecation, or by assignment of any rights, title, or interest of
Franchisee in the Franchise or in the Cable System in order to secure indebtedness, or (ii) a
transfer to an entity directly or indirectly owned or controlled by Comcast Corporation or its
successor. Within thirty (30) days of receiving a request for consent, the County shall, in
accordance with FCC rules and regulations, notify Franchisee in writing of the additional
information, if any, it requires to determine the legal, financial, and technical qualifications of
the transferee or new controlling party. If the Franchising Authority has not taken action on
) days after receiving such
request, consent shall be deemed given.
SECTION 10 Indemnification and Insurance
10.1 Indemnification.
10.1.1. The Franchisee shall, at its sole cost and expense, indemnify and hold
harmless the County and its officials, boards, commissions, agents and employees against any
and all claims, suits, causes of action, proceedings and judgments for damages arising out of the
operation of the Cable System under this Franchise. These damages include, but are not limited
to, penalties arising out of copyright infringements and antitrust violations and damages arising
out of the failure by the Franchisee to secure consents from the owners, authorized distributors or
licensees of programs to be delivered by the F
or omission complained of is authorized, allowed or prohibited by the Franchise and/or arising
out of the Franchisee improperly crossing private property.
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10.1.2. The indemnity set forth in this Section is conditioned upon the giving
the Franchise prompt notice of the commencement or making of any suit or action covered by
this Section such that Franchisee has reasonable time to respond to such suit or action. Nothing
in this Section shall be deemed to prevent the County from cooperating with the Franchisee and
participating in the defense of any litigation by its own counsel at its sole cost and expense. No
recovery by the County of any sum by way of the security fund herein shall be a limitation upon
the liability of the Franchisee to the County under the insurance and indemnification provisions
herein, except that sums received by the County shall be deducted from any recovery which the
County establishes against the Franchisee under this Agreement.
10.1.3. Franchisee shall have the right to defend, settle or compromise any claim or
action arising hereunder, and Franchisee shall have the authority to decide the appropriateness
and the amount of any such settlement. In the event that the terms of any such settlement does
not include the release of the County and the County does not consent to the terms of any such
settlement or compromise, Franchisee shall not settle the claim or action but its obligation to
indemnify the County shall in no event exceed the amount of such settlement.
10.2 Insurance. The Franchisee shall maintain, and by its acceptance of the Franchise
Agreement hereunder specifically agrees that it will maintain throughout the term of the
Franchise Agreement, general comprehensive liability insurance insuring the Franchisee. All
liability insurance shall include an endorsement in a specific form which names as joint and
several insured's the County and the officials, employees and agents, with respect to
all claims arising out of the operation and maintenance of the Franchisee's Cable System in the
County . Liability insurance mentioned herein below shall be in the minimum amounts of:
10.2.1 $5,000,000.00 for bodily injury or death to anyone person, within the limit often
million dollars ($10,000,000) for bodily injury or death resulting from any one accident;
10.2.2 $5,000,000.00 for property damage, including damage to the property,
from any one accident;
10.2.3 $5,000,000.00 for all other types of liability resulting from anyone occurrence;
10.2.4 Workers Compensation Insurance as required by the Commonwealth of
Virginia;
10.2.5 Franchisee shall carry and maintain in its own name automobile liability
insurance with a limit of $5,000,000 for each person and $5,000,000 for each accident for
property damage with respect to owned and non-owned automobiles for the operation of which
the Franchisee is responsible; and
10.2.6 Coverage for copyright infringement.
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10.3 The inclusion of more than one (1) insured shall not operate to increase the limit of the
Franchisee's liability, and that insurer waives any right on contribution with insurance which
may be available to the County.
10.4 All policies of insurance required by this section shall be placed with companies
which are qualified to write insurance in the Commonwealth of Virginia and all policies of
insurance required by this section shall be placed with companies which are qualified to write
insurance in the Commonwealth of Virginia and which maintain throughout the policy term a
General Rating of "A-:VII" and a financial Size Category of" A:X" as determined by Best
Insurance Rating Services. which shall maintain throughout the policy term a General Rating of"
A-:VII" and a Financial A:X" as determined by Best Insurance Rating
Services.
10.5 Certificates of insurance obtained by the Franchisee in compliance with this section
shall be filed and maintained with the Risk Manager during the term of the Franchise.
The Franchisee shall advise the County Attorney of any litigation of which it is aware that would
affect this insurance
10.6 Should the County find an insurance document to be in non-compliance, then it shall
notify the Franchisee, and the Franchisee shall be obligated to cure the defect.
10.7 Neither the provisions of this section, nor any damages recovered by the County
thereunder, shall be construed to nor limit the liability of the Franchisee under any franchise
issued hereunder or for damages.
10.8 The insurance policies provided for herein shall name the County, its officers,
employees and agents as additional insured's, and shall be primary to any insurance or self-
insurance carried by the County.. The insurance policies required by this section shall be carried
and maintained by the Franchisee throughout the term of the franchise and such other period of
time during which the Franchisee operates or is engaged in the removal of its Cable System.
10.9 Identification of Principals. Nothing in this section shall require Franchisee to
indemnify, hold harmless or defend the County, its officials, employees or agents, from any
claims or lawsuits arising out of the s award of a Franchise to another person.
SECTION 11 System Characteristics & Capacity
11.1 System Capacity. The Cable System shall, by no later than the first anniversary of
the Effective Date of this Agreement, provide bandwidth capacity system-wide at a minimum of
750 MHz with a technical quality that meets or exceeds FCC requirements. The Cable System
shall be configured as an active two-way fiber-to-the-node plant allowing for Subscriber
interaction as needed to utilize programming selection and delivery to Subscribers. The Cable
System shall be operated in compliance with FCC standards and rules and in a manner that
minimizes interference with the reception of off-the-air signals by a Subscriber.
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11.2 Back up Power. The Franchisee shall provide standby power generating capacity at
the headend and at all hubs with the capability of furnishing at least twenty four (24) hours
reserve power at the headend and all hubs. A reasonable number of portable generators
sufficient to provide power to the Cable System for at least three (3) hours shall be made
available at all times by the Franchisee.
11.3 Emergency Alert System. The Franchisee shall install and maintain an Emergency
Alert System (EAS) that shall be operated at all times in compliance with the rules of the FCC
and the EAS Plan in effect for the Commonwealth of Virginia.
11.4 Emergency Powers of the County. In the event of an emergency, or where the
property, or an unauthorized use of property, the Franchisee shall remove or relocate any or all
parts of the Cable System at the request of the County. If the Franchisee fails to comply with the
request, the County
System upon reasonable notice to the Franchisee, with the costs of such removal subject to
reimbursement to the County by the Franchisee.
11.5 Service to Schools and Government Buildings. The Franchisee shall provide,
without charge, one Cable Service outlet activated for an enhanced tier package with features
to each building used by the County government
and County schools receiving such services as of the Effective Date of this Agreement, as well
as other such buildings as may thereafter be utilized by theCounty government and/or County
schools, so long as such buildings or facilities are located within two hundred (200) feet of the
service to locations falling beyond this range shall be borne by the County at the time the
request for service is made.
11.6Existing Courtesy Services. Franchisee shall continue to provide the same level of
courtesy service to schools and government buildings that was in place as of the Effective Rate
of this Agreement.
SECTION 12 Enforcement by Franchise Authority
12.1 Reservation of Rights by the County. In the event the County determines, upon a
record established in appropriate public hearings, that the Franchisee has failed to materially
comply with the terms of this Franchise Agreement, the County may impose an appropriate
penalty, including, without limitation, revocation of this Franchise.
12.2 Performance Bond. Within thirty (30) days of the adoption of this Agreement by the
County, the Franchisee shall deposit with the County a performance bond from a financial
institution running to the County in the amount of fifty-thousand dollars ($50,000). This bond
shall serve as a guarantee that the Franchisee will comply with its performance, payment and
service obligations under this Agreement. Any bond so issued shall be placed by an institution
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authorized to issue such performance bonds in the Commonwealth of Virginia. Any
performance bond shall be in a form acceptable to the County. The bond shall be maintained at
the amount established herein for the entire term of the Franchise, even if amounts have to be
withdrawn pursuant to this Agreement.Specifically, the Franchisee shall promptly replace any
amounts withdrawn from the bond or letter of credit so as to maintain it at the required level of
fifty-thousand dollars ($50,000).Any bond shall be recoverable by the County for all damages
and costs, whether direct or indirect, resulting from the failure of Franchisee to well and
faithfully observe and perform any provision of this Franchise Agreement.
12.3 Written Notice of Liability for Amounts Due County.The County shall provide the
Franchisee with written notice informing the Franchisee that such amounts are due to the
County. The written notice shall describe, in reasonable detail, the reason(s) for the assessment.
In accordance with the terms set forth elsewhere in this Section, the Franchisee shall cure every
failure cited by the County or notify the County that there is a dispute as to whether Franchisee
believes such amounts are due the County. Such notice by the Franchisee to the County shall
specify with particularity the basis of Franchisee's belief that such monies are not due the
County.
12.4 Procedures for Enforcement. In the event the County believes that the Franchisee
has failed to comply with terms of this Franchise Agreement, it shall, prior to instituting formal
enforcement proceedings, communicate its belief informally to the Franchisee and attempt in
good faith to seek resolution of the issues. Such communication shall include a written
explanation and statement of details regarding the violation(s) that the County believes has
occurred. If the Franchising Authority believes sums of money are due the County, the notice
provided herein and the notice referenced in subsection 12.3 below may be accomplished
simultaneously in the same communication. In the event that informal discussions do not lead to
a mutually acceptable resolution to the issue, the County shall issue a formal written notice to the
Franchisee. The Franchisee shall have thirty (30) days from receipt of this written notice to: (i)
respond to the County, if the Franchisee contests that noncompliance has occurred; (ii) cure such
default; or (iii) in the event that, by the nature of default, such default cannot be cured within this
period, initiate steps to remedy such default and notify the County of the steps being taken and
the projected date that they will be completed. Should the Franchisee fail to timely respond to
the informal notice or should the default continue beyond the thirty (30) day cure period, the
County shall schedule a public hearing. The County shall provide the Franchisee at least thirty
(30) business days prior written notice of such hearing. The notice shall be furnished in
accordance with the requirements of Virginia law and specify the time, place and purpose of the
public hearing. Any person interested in the matter will be afforded an opportunity to testify.
This public hearing may be held by the Roanoke County Board of Supervisors Council or a duly
appointed designee of the Board of Supervisors.
12.5 Notice to Franchisee of Amount(s) Due County. In the event the Franchisee fails to
cure the default within thirty (30) days, fails to file a timely written response, or fails to timely
complete the remediation, the County, if it wishes to continue its investigation into the default,
shall schedule a public hearing as referenced in subsection 12.4, above. The Franchisee shall be
notified in writing at least thirty (30) business days prior to the public hearing and shall be
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provided an opportunity to be heard at the public hearing. As per the requirements set forth in
subsection 12.4, the notice shall specify the time, place, and purpose of the public hearing. The
County shall: (1) provide public notice of the hearing in compliance with Virginia law; (2) hear
any person interested in the violation under review; and (3) provide the Franchisee with an
opportunity to be heard.
12.6 Findings of Fact & Conclusions of Law & Remedies. Upon closing the record in
the public hearing, the County shall issue findings of fact and conclusions of law pursuant to the
record developed during the public hearing process. Thereafter, the County may elect to apply
one or more of the following remedies: specific performance or other equitable relief;
commencement of an action at law; or, the application of liquidated damages in accordance with
the schedule set forth in this Section.Such findings may also include a proposed cure plan and
timeline for curing the violation(s), if the violation(s) can be cured, and the penalties, damages
and applicable interest, if any, owed by Franchisee to the County.
12.7 Administrative Appeal. In the event the public hearing described herein has been
conducted by a designee of the Board of Supervisors, such as, without limitation, a cable
administrator or cable television commission, the Franchisee may appeal the determination of the
designee to the Board of Supervisors. Such an appeal shall be heard at a lawfully noticed public
hearing.
12.8 Termination. In the event the Franchisee fails to participate in the afore-described
process or fails to comply with any service improvement requirements as imposed pursuant to
the findings of fact and conclusions of law adopted by the Board of Supervisors or its designee,
the Franchise may be terminated after written notice and appropriate further public hearing,
meeting the due process requirements of Virginia law.The Franchisee does not waive any rights
it may have to pursue judicial appeal of any such decisions by the County to terminate this
Franchise Agreement.
12.9 County Option to Elect Liquidated Damages. Because the County and Franchisee
concur that calculation of damages to the County in the event of a material breach by Franchisee
may be difficult to accurately ascertain, the parties agree to the Countyect liquidated
damages as conclusive of actual damages. To the extent that the County elects to assess
liquidated damages as provided in this Agreement and such liquidated damages have been paid,
such damages shall constitute the sole and exclusive remedy. Nothing in this Section is
intended to preclude the Franchising Authority from exercising any other right or remedy with
respect to a breach that continues past the time the Franchising Authority stops assessing
liquidated damages for such breach. Liquidated damages shall not be assessed until the
Franchising Authority has completed the procedures set forth in this Section, including holding a
public hearing, and has notified the Franchisee, by certified or registered mail, of the proposed
liquidated damage(s), specifying the violation(s) at issue. The Franchisee shall have thirty (30)
days from the date of receipt of the written notice to submit payment. If the Franchisee does not
make payment within that period, the Franchising Authority may obtain the amount assessed
from the Franchisee's performance bond.
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12.10 Assessment of Liquidated Damages. Liquidated damages shall be assessed as
follows: (i) Failure to timely render payments due to the County: Three-tenths of one percent
(0.3%) of the unpaid amount for each day the violation continues, in addition to any monetary
payment due and interest, in accordance with the standard interest rate for computing
interest charges on late payments; (ii) Failure to maintain or supply information, reports and
filings lawfully required: $200 for each violation for each day the violation continues; (iii)
Failure to comply with customer service standards: $200 for each violation for each day the
violation continues, except when compliance is measured in quarterly increments, in which case
damages shall be as specified; (iv) Failure to comply with customer service standards in cases
where compliance is measuredon a quarterly basis: $500 for the first violation in which
standards were not met; $1,000 for the second violation; and $2,500 for the third or fourth
violation;and, (v) failure to comply with EG access requirements: $200 for each violation for
each day the violation continues.On an annual basis from the Effective Date of the Franchise,
liquidated damages in total will not exceed twenty thousand dollars ($2
12.11 Multiple Violations. The Franchisee shall not be charged with multiple violations
for a single act or event affecting a single Subscriber or for a single act or event affecting
multiple Subscribers on the same day.
12.12 Waivers. The County may grant waivers of any of the foregoing liquidated
damage amounts upon determining that the public interest would be thereby served.
12.13 Liquidated Damages Construed as Penalties. The foregoing liquidated damages
are intended by the parties hereto to constitute penalties to the full extent allowed and
contemplated by Section 15.2-2108.22(6) of the Code of Virginia.
SECTION 13 Compliance with Legal and Industry Standards
13.1 Franchisee shall comply with all applicable federal, state and local construction and
engineering codes and regulations, currently in force or hereafter applicable, to the construction,
operation or maintenance of its Cable System within the Franchise Area.. The County shall have
the right to review Franchisee's construction plans and specifications to assure compliance with
the required standards. The Franchisee shall be solely responsible for taking all steps necessary
to assure compliance with applicable standards and to ensure that its Cable System is installed in
a safe manner and pursuant to the terms of the Franchise and applicable law.
SECTION 14 - Miscellaneous Provisions
14.1 Force Majeure. The Franchisee shall not be held in default under, or in
noncompliance with, the provisions of the Franchise, nor suffer any enforcement or penalty
relating to noncompliance or default (including termination, cancellation or revocation of the
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Franchise), where such noncompliance or alleged defaults occurred or were caused by events
which constitute a Force Majeure, as defined in the Agreement.
14.2 Notice. All notices shall be in writing and shall be sufficiently given and served
upon the other party by hand delivery, first class mail, registered or certified, return receipt
requested, postage prepaid, or by reputable overnight courier service and addressed as follows:
To the Franchising Authority:
County Administrator
5204 Bernard Dr.
Roanoke, Virginia 24018-0798
To the Franchisee:
Comcast of Connecticut/Georgia/Massachusetts/New Hampshire/New York/North
Carolina/Virginia/Vermont, LLC
6600 Hayes Avenue
Staunton, Virginia 2440
Attn: Director, Government Affairs
and to:
Comcast Cable Communications, Inc.
1301 McCormick Drive
Largo, MD 20774
Attn.: VP, Government Affairs
14.3 Entire Agreement. This Franchise Agreement, including all Exhibits, embodies the
entire understanding and agreement of the Franchising Authority and the Franchisee with respect
to the subject matter hereof and supersedes all prior understandings, agreements and
communications, whether written or oral. All ordinances or parts of ordinances that are in
conflict with or otherwise impose obligations different from the provisions of this Franchise
Agreement are superseded by this Franchise Agreement.
14.4 Severability. If any section, subsection, sentence, clause, phrase, or other portion of
this Franchise Agreement is, for any reason, declared invalid, in whole or in part, by any court,
agency, commission, legislative body, or other authority of competent jurisdiction, such portion
shall be deemed a separate, distinct, and independent portion. Such declaration shall not affect
the validity of the remaining portions hereof, which other portions shall continue in full force and
effect.
14.5 Governing Law. This Franchise Agreement shall be deemed to be executed in the
Commonwealth of Virginia, and shall be governed in all respects, including validity,
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interpretation and effect, and construed in accordance with, the laws of the Commonwealth of
Virginia, as applicable to contracts entered into and performed entirely within the
Commonwealth.
14.6 Modification. No provision of this Franchise Agreement shall be amended or
otherwise modified, in whole or in part, except by an instrument, in writing, duly executed by the
Franchising Authority and the Franchisee, which amendment shall be authorized on behalf of the
Franchising Authority through the adoption of an appropriate resolution or order by the
Franchising Authority, as required by applicable law.
14.7 No Third-Party Beneficiaries. Nothing in this Franchise Agreement is or was
intended to confer third-party beneficiary status on any member of the public to enforce the
terms of this Franchise Agreement.
14.8 No Waiver of Rights. Nothing in this Franchise Agreement shall be construed as a
waiver of any rights, substantive or procedural; Franchisee may have under federal or state law
unless such waiver is expressly stated herein.
IN WITNESS WHEREOF, this Franchise Agreement has been executed by the duly authorized
representatives of the parties as set forth below, as of the date set forth below:
Attest: County of Roanoke, Virginia
________________________ By:_______________________________
onnecticut/Georgia/
Attest: Comcast of C
Massachusetts/ New Hampshire/ NewYork/
North Carolina/Virginia/Vermont, LLC
________________________ By:_______________________________
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ACTION NO. _______________
ITEM NO. _______G-1-2_________
AT A REGULAR MEETING OF THE BOARD OF SUPERVISORS OF ROANOKE
COUNTY, VIRGINIA HELD AT THE ROANOKE COUNTY ADMINISTRATION CENTER
MEETING DATE:
October 8, 2013
AGENDA ITEM:
Appointments to Committees, Commissions and Boards
SUBMITTED BY:
Deborah C. Jacks
Clerk to the Board
APPROVED BY:
B. Clayton Goodman III
County Administrator
COUNTY ADMINISTRATOR'S COMMENTS:
SUMMARY OF INFORMATION:
1. Capital Improvement Program (CIP) Review Committee (appointed by District)
The following one-year term expired on August 31, 2012:
a) Becky Walter, representing the Hollins Magisterial District; Ms. Walter has
served three consecutive terms and therefore cannot be reappointed.
2. Roanoke County Community Leaders Environmental Action Roundtable
(RCCLEAR) (appointed by District)
The following three-year terms expired- on August 31, 2013:
a) Dawn Werness, representing the Vinton Magisterial District. Ms. Werness
has advised she does not wish to serve an additional term.
b) David Wymer, representing the Catawba Magisterial District. Mr. Wymer has
advised he does not wish to serve an additional term.
Page 1 of 1
H
AT A REGULAR MEETING OF THE BOARD OF SUPERVISORS OF ROANOKE
COUNTY, VIRGINIA, HELD AT THE ROANOKE COUNTY ADMINISTRATION
CENTER ON TUESDAY, OCTOBER 8, 2013
RESOLUTION APPROVING AND CONCURRING IN CERTAIN ITEMS SET
FORTH ON THE BOARD OF SUPERVISORS AGENDA FOR THIS DATE
DESIGNATED AS ITEM H- CONSENT AGENDA
BE IT RESOLVED by the Board of Supervisors of Roanoke County, Virginia, as
follows:
That the certain section of the agenda of the Board of Supervisors for October 8,
2013, designated as Item H - Consent Agenda be, and hereby is, approved and concurred
in as to each item separately set forth in said section designated Items 1 through 6
inclusive, as follows:
1. Approval of minutes – September 10, 2013
2. Resolution expressing the appreciation of the Board of Supervisors of Roanoke
County to Melaine C. Haynes, Accounts Coordinator-Social Services, upon her
retirement after more than nineteen (19) years of service
3. Resolution requesting acceptance of Circleview Drive into the Virginia
Department of Transportation (VDOT) Secondary System
4. Resolution authorizing an amendment to the lease with StellarOne Bank to
provide for three (3) additional parking spaces
5. Request for approval of change order for contract with Price Buildings for repair
of brick at the Roanoke County Courthouse
6. Request to accept the donation of a public drainage easement on the property of
Stanley Koper and Jadwiga Koper located on Westmoreland Drive (Tax Map No.
077.13-04-37.00); Cave Spring Magisterial District
Page 1 of 1
ACTION NO. _______________
ITEM NO. _______H-2________
AT A REGULAR MEETING OF THE BOARD OF SUPERVISORS OF ROANOKE
COUNTY, VIRGINIA HELD AT THE ROANOKE COUNTY ADMINISTRATION CENTER
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October 8, 2013
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Resolution expressing the appreciation of the Board of
Supervisors of Roanoke County to Melaine C. Haynes,
Accounts Coordinator Social Services, upon her retirement
after more than twenty-one (21) years of service
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Deborah C. Jacks
Clerk to the Board
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B. Clayton Goodman III
County Administrator
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ÍËÓÓßÎÇ ÑÚ ×ÒÚÑÎÓßÌ×ÑÒæ
Melaine C. Haynes, Accounts Coordinator for Social Services, retired on October 1, 2013
after twenty-one (21) years and nine (9) months of service with Roanoke County.
Ms. Haynes is unable to attend the meeting and her resolution and County quilt will be
mailed to her home.
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Staff recommends adoption of the attached resolution.
Page 1 of 1
AT A REGULAR MEETING OF THE BOARD OF SUPERVISORS OF ROANOKE
COUNTY, VIRGINIA, HELD AT THE ROANOKE COUNTY ADMINISTRATION
CENTER ON TUESDAY, OCTOBER 8, 2013
RESOLUTION EXPRESSING THE APPRECIATION OF THE BOARD OF
SUPERVISORS OF ROANOKE COUNTY TO MELAINE C. HAYNES,
ACCOUNTS COORDINATOR – SOCIAL SERVICES, UPON HER
RETIREMENT AFTER MORE THAN TWENTY-ONE (21) YEARS OF
SERVICE
WHEREAS, Melaine C. Haynes was hired on December 19, 1991 and served as a
Clerk Typist in Risk Management, Clerk Typist in Payroll and Utility Billing, Clerk Typist in
Social Services, Accounts Clerk II in Social Services and Accounts Coordinator in Social
Services; and
WHEREAS, Ms. Haynes retired on October 1, 2013, after twenty-one (21) years
and nine (9) months of devoted, faithful and expert service with the County; and
WHEREAS, during her time serving Roanoke County, Ms. Haynes as Accounts
Coordinator always strived to provide outstanding customer service to both vendors and
citizens as well as internal Social Services staff and County Finance staff ; and
NOW, THEREFORE, BE IT RESOLVED that the Board of Supervisors of Roanoke
County, Virginia expresses its deepest appreciation and the appreciation of the citizens of
MELAINE C. HAYNES
Roanoke County to for twenty-one (21) years and nine (9) months
of capable, loyal and dedicated service to Roanoke County; and
FURTHER, the Board of Supervisors does express its best wishes for a happy and
productive retirement.
Page 1 of 1
In the County of Roanoke
By resolution of the governing body adopted October 8, 2013
The following VDOT Form AM-4.3 is hereby attached and incorporated as part of the governing body's resolution for
changes in the secondary system of state highways.
A Copy Testee Signed (County Official): ____________________________________________
Report of Changes in the Secondary System of State Highways
Project/Subdivision Suncrest Heights Section 3
Type Change to the Secondary System of State Highways:Addition
The following additions to the Secondary System of State Highways, pursuant to the statutory provision or provisions
cited, are hereby requested; the right of way for which, including additional easements for cuts, fills and drainage, as
required, is hereby guaranteed:
Reason for Change:New subdivision street
Pursuant to Code of Virginia Statute:§33.1-229
Street Name and/or Route Number
Circleview Drive, State Route Number 726
Old Route Number: 0
z From: 0.2 MI N INT ROUTE 930
To: 0.3 MI N INT ROUTE 930, a distance of: 0.10 miles.
Recordation Reference: instr #201310934
Right of Way width (feet) = 50
VDOT Form AM-4.3 (4/20/2007) Maintenance Division
Date of Resolution: October 8, 2013 Page 1 of 1
PROPOSED ADDITION(S) SHOWN IN BLUE
DESCRIPTIONLENGTHROWWIDTHSERVICES
MilesFeetFeetHouses
CircleviewDrive; From 0.2 MI N ROUTE 930
to the end of its cul-de-sac0.1050201
ROANOKE COUNTY
ACCEPTANCE OF CIRCLEVIEW DRIVE INTO THE
DEPARTMENT OF
VIRGINIA DEPARTMENT OF TRANSPORTATION
SCONDARY SYSTEM
COMMUNITY DEVLOPMENT
AT A REGULAR MEETING OF THE BOARD OF SUPERVISORS OF ROANOKE
COUNTY, VIRGINIA, HELD AT THE ROANOKE COUNTY ADMINISTRATION
CENTER ON TUESDAY, OCTOBER 8, 2013
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WHEREAS, the streets described on the attached Addition Form AM-4.3, fully
incorporated herein by reference, are shown on plats recorded in the Clerk's Office of
the Circuit Court of Roanoke County, and
WHEREAS, the representative for the Virginia Department of Transportation has
advised this Board that the street(s) meet the requirements established by the Virginia
Department of Transportation
WHEREAS, the County and the Virginia Department of Transportation have
entered into an agreement on March 9, 1999, for comprehensive stormwater detention
which applies to this request for addition,
NOW, THEREFORE, BE IT RESOLVED, this Board requests the Virginia
Department of Transportation to add the street(s) described on the attached Additions
Form AM-4.3 to the secondary system of state highways, pursuant to §33.1-229, Code
of Virginia, and the Department's Subdivision Street Requirements, after receiving a
copy of this resolution and all outstanding fees and documents required of the
developer, whichever occurs last in time.
BE IT FURTHER RESOLVED, this Board guarantees a clear and unrestricted
right-of-way, as described, and any necessary easements for cuts, fills anddrainage,
and
BE IT FURTHER RESOLVED, that a certified copy of this resolution be
Page 1 of 2
forwarded to the Residency Administrator for the Virginia Department of Transportation.
Page 2 of 2
AT A REGULAR MEETING OF THE BOARD OF SUPERVISORS OF ROANOKE
COUNTY, VIRGINIA, HELD AT THE ROANOKE COUNTY ADMINISTRATION
CENTER ON TUESDAY, OCTOBER 8, 2013
RESOLUTION AUTHORIZING AN AMENDMENT TO A LEASE WITH
STELLARONE BANK FOR THREE (3) ADDITIONAL PARKING
SPACES
WHEREAS, the County currently leases thirty-two (32) parking spaces from
StellarOne Bank at the Social Services Building on East Main Street in Salem ; and
WHEREAS, the StellarOne has offered to lease three (3) additional spaces to the
County at the same lease rate; and
WHEREAS, the Board has determined that the leasing of additional parking
spaces for social services department personnel, its clients and our citizens will facilitate
the efficient operation of this department; and
WHEREAS, Board previously adopted Ordinance #091112-4, which authorized
and approved this lease for parking spaces with StellarOne; and
WHEREAS, Sec.18.04 of the Roanoke County Charter states in part that “after
any such ordinance shall have taken effect, all subsequent proceedings incidental
thereto and providing for the carrying out of the purposes of such ordinance may . . . be
taken by resolution of the board.”.
NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF SUPERVISORS
OF ROANOKE COUNTY as follows:
1. That the Board hereby authorizes and approves the amendment to the Lease
with StellarOne Bank for three (3) additional parking spaces at a rate of
$22.50 per space per month.
Page 1 of 2
2.That the County Administrator, or any Assistant County Administrators, either
of whom may act, are authorized to execute and deliver the Lease
Agreement, all of which shall be approved as to form by the County Attorney.
3. That this resolution shall be effective from and after the date of its adoption.
Page 2 of 2
LEASE ADDENDUM
Whereas, STELLARONE Bank, as Grantor (“Landlord”) and the BOARD OF
SUPERVISORS OF ROANOKE COUNTY, VIRGINIA, a political subdivision of the
Commonwealth of Virginia, its successors or assigns, as Grantee (“Tenant”), entered into a
st
DEED OF LEASE on the 1 of September, 2012, attached hereto as Exhibit A;
Whereas, the Lease was for “A portion of that tract or parcel of real estate containing 32
parking spaces of a parking lot located at 200 E. Calhoun Street, Salem, Virginia, bounded by
Calhoun Street and Colorado Street, said parcel designated as City of Salem Tax Map #106-
013-009;”
Whereas, the Term of the Lease is November 1, 2012, and continues until October 31,
2014 with additional, successive, automatic, one (1) year terms, at the Tenant’s option;
Whereas, the Landlord has agreed to lease to the Tenant three additional parking spaces,
specifically Parking Spaces #37, #38, and #39 at the current rate of $22.50 per month under the
same terms of the September 1, 2012 Lease;
NOW THEREORE, and in consideration of the premises and mutual covenants contained
herein and in the September 1, 2012 Lease by incorporation,
Section 1
of the Lease is hereby amended to read:
Leased Premises
1. – “………. “A portion of that tract or parcel of real estate containing
35
parking spaces of a parking lot located at 200 E. Calhoun Street, Salem, Virginia,
bounded by Calhoun Street, said parcel designated as City of Salem Tax Map #106-013-
009.”
Section 3
AND, of the Lease is hereby amended to read:
Rental
3.–The Tenant shall pay as rent the sum of Seven Hundred Eighty Seven and
Fifty Cents ($787.50) for the remainder of the initial two year term which ends October
31, 2014. The rent shall be payable without demand in advance by Tenant to Landlord at
StellerOne Accounting, 590 Peter Jefferson Parkway, Suite 25, Charlottesville, VA 2291.
The rent shall increase Twenty-Five ($25.00) per month annually upon renewal
beginning on of each option period beginning November 1 of each year.
ALL OTHER TERMS AND CONDITIONS, of the Lease Agreement dated September 1,
2012 remain in full force and effect, passed by the Board of Supervisors, Ordinance #091112-4.
This action was approved by Board Action __________________.
Page 1 of 2
WITNESS the following signatures and seals:
STELLERONE BANK
By:__________________________________________
Title:_________________________________________
Approved as to Form: BOARD OF SUPERVISORS OF ROANOKE COUNTY
_______________________ By:___________________________________________
Page 2 of 2