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HomeMy WebLinkAbout10/28/2003 - Regular October 28, 2003 923 Roanoke County Administration Center 5204 Bernard Drive Roanoke, Virginia 24018 October 28, 2003 The Board of Supervisors of Roanoke County, Virginia met this day at the Roanoke County Administration Center, this being the fourth Tuesday and the second regularly scheduled meeting of the month of October, 2003. IN RE: CALL TO ORDER Chairman McNamara called the meeting to order at 3:03 p.m. The roll call was taken. MEMBERS PRESENT: Chairman Joseph McNamara, Vice-Chairman Richard C. Flora, Supervisors Michael W. Altizer, Joseph B. “Butch” Church, H. Odell “Fuzzy” Minnix MEMBERS ABSENT: None STAFF PRESENT: Elmer C. Hodge,County Administrator;Paul M. Mahoney, County Attorney; Brenda J. Holton, Deputy Clerk to the Board; John M. Chambliss, Assistant County Administrator; Dan O’Donnell, Assistant County Administrator; Teresa Hamilton Hall, Public Information Officer IN RE: OPENING CEREMONIES The invocation was given by Pastor Mark Graham, St. John Lutheran Church. The Pledge of Allegiance was recited by all present. IN RE: PROCLAMATIONS, RESOLUTIONS, RECOGNITIONS AND AWARDS 1. Proclamation declaring October 25 through November 2, 2003, as Red Ribbon Week in Roanoke County October 28, 2003 924 Chairman McNamara presented the proclamation to Ray Bemis, Prevention Specialist with Blue Ridge Behavioral Healthcare and RAYSAC member. IN RE: BRIEFINGS 1. Briefing on progress of the Capital Improvement Program (CIP) Review Committee and Capital Planning for fiscal year 2004-2005 (CIP fiscal years 2005-2009). (Brent Robertson, Director of Management and Budget) Mr. Robertson advised that a work session was held on August 12, 2003, to discuss the planned update of the County’s Capital Improvements Program (CIP) for FY 2005-2009. A proposal was presented to the Board that included a citizen-based committee that would evaluate and recommend capital priorities to the Board for consideration in developing the FY 2004-2005 County budget. This approach will allow a diverse perspective of the capital needs that exist in the County. He reviewed the goals and objectives and the capital project evaluation criteria developed by the committee. He advised that the committee members are continuing to visit sites and hope to have a recommendation for the Board in December or January. He advised that the committee has held six meetings and the members are: (1) Barbara Fasnacht, Catawba District; (2) Dawn Erdman, Cave Spring District; (3) Jason Perdue, Hollins District; (4) Craig Sharp, Industrial Development Authority; (5) Connie Goodman, Library Board; (6) Don Witt, Planning Commission; (7) Chris Georgoulis, Public Safety; (8) Jack October 28, 2003 925 Griffith, Recreation Commission; (9) Michael Roop, Vinton District; and (10) Lee Eddy, Windsor Hills District. IN RE: PUBLIC HEARING 1. Public hearing to receive citizen comments regarding proposed amendments to the fiscal year 2003-2004 budget in accordance with Section 15.2-2507, Code of Virginia. (Paul Mahoney, County Attorney) Mr. Mahoney advised that this is a public hearing to secure citizen’s comments concerning amending the FY 2003-2004 budget by adjusting the aggregate amount to be appropriated during the current fiscal year. Section 15.2-2507 provides that whenever such amendment exceeds 1% of the total expenditures shown in the adopted budget or $500,000, whichever is lesser, the County must publish notice of a meeting and public hearing. The notice must state the County’s intent to amend the budget and include a brief synopsis of the proposed budget amendments. Mr. Mahoney advised that Board action appropriating a variety of funding requests will occur later during this meeting. The notice was published on October 21, 2003. There were no citizens present to speak on this item. IN RE: NEW BUSINESS 1. Approval of refinancing of Water Revenue Bonds: (Elmer Hodge, County Administrator; Diane Hyatt, Chief Financial Officer) October 28, 2003 926 Mr. Hodge advised that Ms. Hyatt and Jim Johnson, County Financial Advisor, would be presenting more in-depth information on this item. This is a request for authorization to refinance and refund the outstanding revenue bonds which were issued in 1991 for the construction of the Spring Hollow Reservoir and the water system. These transactions will benefit the County and the proposed Western Virginia Water Authority (WVWA) but these transactions are not dependent upon establishment of the WVWA. This action is feasible at this time because of the following reasons: the interest rates are very favorable; the bonds can be paid off at a lower interest rate saving money annually; restrictive covenants can be removed; the General Fund can be repaid $15 million for general obligations bonds; and money can be reserved for capital projects. Mr. Hodge advised that the County issued $15 million in general obligation bonds for the construction of Spring Hollow Reservoir because this was a general benefit for the citizens of the County. To build the entire system, $59.7 million in revenue bonds was issued to be repaid by the users of the water system. He advised that these actions would free up funds which could be used for a new Public Safety Building if the Board desires. He described the history of the Spring Hollow Reservoir and thanked the Board members for their support during these past 12 years. He also thanked Ms. Hyatt and Mr. Johnson, Bonnie France, Attorney in Richmond; Paul Mahoney, Gary Robertson, and acknowledged the assistance of the late Cliff Craig who was Director of Utility and instrumental to the Spring Hollow Reservoir. October 28, 2003 927 (a) Request to approve a resolution authorizing the issuance and sale of Water System Refunding Revenue Bonds R-102803-1 Ms. Hyatt reported that in October 1991, the County issued $59,731,873.75 of its Water System Revenue Bonds, Series 1991. These were used, along with other available monies, to fund an expansion and improvement of the public water supply system including the acquisition, construction and equipping of a dam and water reservoir; water treatment facilities and distribution; and storage and transmission facilities. The Series 1991 Bonds included serial current coupon bonds for years 1996 through 1999 totaling $4,610,000, zero coupon bonds for years 2000 to 2009 of $1,775,000 (maturity value) and term bonds totaling $47,615,000 maturing in 2021 and 2031. Ms. Hyatt reported that in October 1993, the County refunded, on an advanced refunding basis, the Term Bonds maturing in 2021 and 2031 with Series 1993 and Series 1993 B Bonds. The Series 1993 and 1993 B Bonds are currently callable at 102%. The Series 1991 Capital Appreciation Bonds are not callable. Ms. Hyatt advised that the County desires to execute a current refunding of all of the Series 1993 and Series 1993 B Bonds to accomplish three major objectives: (1) To adopt a new Master Trust Indenture that would provide the County a greater degree of flexibility in making financial, legal and operating decisions in the future. This flexibility is needed in order to transfer the water assets to the proposed new Authority. October 28, 2003 928 (2) To reduce the existing Rate Stabilization Fund and the existing Debt Service Reserve Fund that are required under the terms of the Series 1991,1993 and 1993 B Bond Indentures and free these resources to the extent possible for other permitted uses by the County. Portions of these funds that are related to the 1991 Bonds will remain. (3) To realize net present value savings from the lower interest rate currently available in the marketplace. Ms. Hyatt advised that the County has applied, and been approved to participate in the Fall 2003 Bond Pool Sale of the Virginia Resources Authority (VRA). The VRA needs a resolution adopted by the Board of Supervisors authorizing the refinancing by October 30, 2003. She advised that information should be inserted into the resolution as follows: (1) $57 million in Paragraph 1 “Authorization or Bonds and Use of Proceeds; (2) $57 million in Paragraph 3 “Details of Bond” and (3) 2031 in Paragraph 3 “Details of Bond”. The bonds are scheduled to be sold in mid-November with a closing the December 1, 2003. Based on the current market conditions, savings are estimated to be approximately $650,000 annually through 2009. Then savings will drop to $550,000 annually and debt service will remain constant from 2010 through 2027. Ms. Hyatt advised that the staff recommends adopting a resolution authorizing the sale and issuance of Water Refunding Revenue Bonds to refinance the County Water Revenue Bonds, 1993 and 1993 B. October 28, 2003 929 Mr. Jim Johnson explained that in 1991, the County went to the open municipal market and general investors at large to sell bonds because there was no acceptable infrastructure program for County participation. The County had to pay for municipal bond insurance and accepted stricter covenants as a new operating system. Today, the VRA has developed a unique program that is allowing municipalities such as the County to save funds and access the credit markets without going through a more expensive process. The program that the VRA will be unveiling for the first time on November 7 will allow the County to sell about 70% of its bonds based on a AAA rating which is the highest credit rating that a bond issue can receive, and sell approximately 30% of the bond issues based on the moral obligation of the Commonwealth of Virginia or basically a AA credit. The County will be able to participate on a combined interest rate between those two which is estimated to be approximately 4.47%. The benefit of this improved program is the ability to access the lower interest rate without onerous operating covenants. Mr. Johnson advised that the VRA has completed an extensive review of the water system revenue bonds of the County and has approved the County to participate in the VRA pool based upon the strength of its credit and not any other commitment from the County. The County will not have to maintain a rate stabilization fund, the rate covenants will be reduced from approximately 120 to 115 coverage, and there will not be periodic inspections from an outside party. The VRA, as a state agency, understands that part of the reason for this refunding is to allow the County to October 28, 2003 930 put all of the water system legal requirements in a format to combine with another authority, and in that case, the VRA would be an equal partner to accomplish this. Mr. Johnson advised that one item of uncertainty with the new program is that the VRA may require the County to fund a debt service fund equal to one year’s debt service on the bonds because of the subordinating bonds at 30%. This would be necessary to implement the moral obligation of the Commonwealth of Virginia that protects the credit of the VRA. He advised that they are asking for the adoption of the maximum amount of $57 million in the resolution which should be more than adequate to cover any changes which may come up in the program. He advised that it is a very volatile interest rate market at this time and he cannot state that the bonds will be sold at this aggressive interest rate on November 17th. Supervisor McNamara moved to adopt the resolution with the inserted information. The motion carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None RESOLUTION 102803-1 OF THE BOARD OF SUPERVISORS OF THE COUNTY OF ROANOKE, VIRGINIA, AUTHORIZING THE ISSUANCE AND SALE OF WATER SYSTEM REFUNDING REVENUE BONDS WHEREAS, the Board of Supervisors (the "Board") of the County of Roanoke, Virginia (the "County"), has determined that it is advisable to refund, redeem and defease all or a portion of its outstanding $35,625,000 Water System Refunding Revenue Bonds, Series 1993 and $18,915,000 Water System Refunding Revenue Bonds, Series 1993B (collectively, the "Refunded Obligations") through the issuance of its water system refunding revenue bond (the "Bond"); WHEREAS, the Bond shall be issued pursuant to a Master Indenture of Trust, October 28, 2003 931 dated as of October 1, 1991 (the "Master Indenture") between the County and SunTrust Bank (as successor to Crestar Bank), as trustee (the "Trustee") as previously supplemented and a Third Supplemental Indenture of Trust (the "Third Supplemental Indenture") between the County and the Trustee; WHEREAS, the Board has determined to cause the Bond to be sold to the Virginia Resources Authority ("VRA") pursuant to the terms of a Local Bond Sale Agreement (the "Local Bond Sale Agreement") and a Financing Agreement (the "Financing Agreement"), each between the County and VRA; and WHEREAS, the foregoing arrangements will be reflected in the Third Supplemental Indenture, the Local Bond Sale Agreement, the Financing Agreement and the Bond, forms of which have been presented to this meeting and filed with the County document; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF SUPERVISORS OF THE COUNTY OF ROANOKE, VIRGINIA: 1. Authorization of Bonds and Use of Proceeds. The Board hereby determines that it is advisable to contract a debt and to issue and sell the Bond in the maximum principal amount of $57,000,000. The issuance and sale of the Bond is hereby authorized upon the terms set forth herein and upon such other terms as may be determined in the manner set forth herein. The proceeds from the issuance and sale of the Bond shall be used, together with other available funds, to refund, redeem and defease any or all of the outstanding maturities of the Refunded Obligations, as determined by the County's Chief Financial Officer. 2. Award and Sale to the Virginia Resources Authority. The award and sale of the Bond to or at the direction of VRA is authorized. The Bond shall be delivered to or upon the order of VRA upon VRA's payment of the purchase price to be set forth in the Local Bond Sale Agreement. 3. Details of Bond. The Bond shall be issued as a single fully registered bond. The County Administrator is authorized to determine and approve all of the final details of the Bond, including, without limitation, its dated date, original aggregate principal amount, interest rates, payment dates and amounts, redemption provisions, and the purchase price of the Bond to be paid by VRA, provided that (i) the aggregate principal amount of the Bond shall not exceed $57,000,000, (ii) the true interest cost of the Bond shall not exceed 6.0% (exclusive of Supplemental Interest (as defined in the Financing Agreement), (iii) the final maturity of the Bond shall not be later than December 31, 2031, and (iv) the purchase price of the Bond to be paid by VRA shall not be less than 95% of the original aggregate principal amount of the Bond. Following the pricing of the corresponding VRA Bonds, the Chairman of the Board or the County Administrator, or either of them shall evidence his approval of the October 28, 2003 932 final terms and purchase price of the Bond by executing and delivering to VRA the Local Bond Sale Agreement, which shall be in substantially the form presented to this meeting, with such completions, omissions, insertions and changes not inconsistent with this Resolution as may be approved by the officer executing the Local Bond Sale Agreement. The actions of the Chairman of the Board or the County Administrator in determining the final terms and the purchase price of the Bond shall be conclusive, and no further action shall be necessary on the part of the County. 4. Financing Documents. The Chairman of the Board and the County Administrator, or either of them, are authorized and directed to execute and deliver the Third Supplemental Indenture of Trust, the Financing Agreement and the Local Bond Sale Agreement in substantially the forms presented to this meeting, with such changes, insertions or omissions as may be approved by the County Administrator, whose approval shall be evidenced conclusively by the execution and delivery of the Third Supplemental Indenture of Trust, Local Bond Sale Agreement and the Financing Agreement on the County's behalf, and the County Administrator is authorized to complete the Local Bond Sale Agreement with the final terms and details of the Bond as determined pursuant to paragraph 3.. The County agrees to pay all amounts required by the Financing Agreement, including any amounts required by Section 6.1 of the Financing Agreement, including the "Supplemental Interest," as provided in such section. 5. Redemption of Bond. The Bond shall not be subject to refunding or redemption without the consent of VRA, as provided in the Bond and the Financing Agreement. 6. Pledge of Revenues. The Bonds shall be limited obligations of the County and principal of, premium, if any, and interest on the Bonds shall be payable solely from the revenues derived by the County from its water system, as set forth in the Bonds, the Master Indenture and the Third Supplemental Indenture pursuant to which the Bonds will be issued, and from other funds that have been or may be pledged for such purpose under the terms and conditions of the Master Indenture and the Third Supplemental Indenture. Nothing in this Resolution, the Bonds, the Master Indenture or the Third Supplemental Indenture shall be deemed to pledge the full faith and credit of the County to the payment of the Bonds. 7. Details of and Sale of Bonds. The Bonds shall be issued upon the terms established pursuant to this Resolution, the Master Indenture and the Third Supplemental Indenture. The Bond shall be in substantially the form of Exhibit A attached to the Third Supplemental Indenture, with such variations, insertions or deletions as may be approved by the Chairman or Vice Chairman of the Board and the County Administrator. There may be endorsed on the Bond such legend or text as may be necessary or appropriate to conform to any applicable rules and regulations of any October 28, 2003 933 governmental authority or any usage or requirement of law with respect thereto. 8. Evidence of Approval. The Chairman's or Vice Chairman's and the County Administrator's approval or determination of all of the details and provisions of the Bond that they have been authorized and/or directed to approve under this Resolution shall be evidenced conclusively by the execution and delivery of the Bond on the County's behalf. 9. Execution and Delivery of the Bond. The Chairman or Vice Chairman of the Board and the County Administrator are authorized and directed to execute the Bond and the Clerk of the Board (the "Clerk") is authorized and directed to affix the seal of the County thereon and to attest such seal. Such officers are further authorized and directed to deliver the Bond to or at the direction of VRA upon payment of the purchase price set forth in the Local Bond Sale Agreement. 10. Disclosure Documents. The County authorizes and consents to the inclusion of information with respect to the County to be contained in VRA's Preliminary Official Statement and VRA's Official Statement in final form, both prepared in connection with the sale of bonds to be issued by VRA, a portion of the proceeds of which will be used to purchase the Bond. If appropriate, such disclosure documents shall be distributed in such manner and at such times as any of them shall determine. The County Administrator is authorized and directed to take whatever actions are necessary and/or appropriate to aid VRA in ensuring compliance with Securities and Exchange Commission Rule 15c2-12. 11. Non-Arbitrage Certificate and Tax Covenants. The County Administrator and the County's Chief Financial Officer, or either of them, are authorized to execute a Nonarbitrage Certificate and Tax Compliance Agreement or any related document (the "Tax Documents") setting forth the expected use and investment of the proceeds of the Bond and containing such covenants as may be necessary in order to comply with the provisions of the Internal Revenue Code of 1986, as amended (the "Tax Code"), including the provisions of Section 148 of the Tax Code and applicable regulations relating to "arbitrage bonds." The Board covenants on behalf of the County that the proceeds from the issuance and sale of the Bond will be invested and expended as set forth in the Tax Documents, to be delivered simultaneously with the issuance and delivery of the Bond and that the County shall comply with the other covenants and representations contained therein. 12. Refunding. The County Administrator and the County's Chief Financial Officer, or either of them, is authorized and directed to determine the maturities of the Refunded Obligations to be refunded, to provide for such Refunded Obligations to be called for redemption and to provide for their refunding. The County Administrator and the County's Chief Financial Officer, or either of them, is authorized to enter into an Escrow Agreement with an Escrow Agent to be selected by the County Administrator to October 28, 2003 934 provide for the refunding of the Refunded Obligations. 13. Further Actions. All officers and agents of the Board and the County are authorized and directed to take such further actions in conformity with the purpose and intent of this Resolution as may be necessary or appropriate in connection with the issuance and sale of the Bond, and the execution, delivery and performance of the Third Supplemental Indenture, the Local Bond Sale Agreement and the Financing Agreement, including the execution and delivery on behalf of the County of such instruments, documents or certificates as necessary or appropriate to carry out the transactions contemplated by this Resolution. All actions previously taken by such officers and agents in connection with the issuance and sale of the Bond are ratified and confirmed. The County Administrator is designated the County's Authorized Representative for purposes of the Financing Agreement. 14. Effective Date. This Resolution shall take effect immediately. On motion of Supervisor McNamara to adopt the resolution, and carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None (b) Request to approve reimbursement of $11 million from the Water Fund to the General Fund for debt service payments made related to Spring Hollow Reservoir A-102803-2 Ms. Hyatt advised that in 1991, the County issued $15 million of general obligation bonds, and $59.7 million of water revenue bonds to finance the expansion and improvements of the public water supply system which included the acquisition, construction and equipping of a dam and water reservoir, water treatment facilities and distribution, storage and transmission lines. The annual debt service on the water revenue bonds is repaid through the water rates. A five-year series of annual water rate increases was implemented to pay the debt service on these water revenue bonds. The October 28, 2003 935 last of these rate increases went into effect on July 1, 1995, for a cumulative increase of 97%. Ms. Hyatt advised that in order to avoid further increases in the water rates, the annual debt service on the $15 million general obligation bonds is repaid through the general fund. To date, the general fund has paid $12,928,781 in debt service payments. Other than this debt payment, the water fund is self-sufficient – the water rates, charges and other revenues pay for the expenses of the water system. In order to comply with the rate covenants of the water revenue bonds, the water system has to generate surplus funds every year. In addition, the sale of water to Roanoke City during the drought periods has generated surpluses that were not planned in the budget. These surplus funds can be use for capital or other one-time expenditures. Ms. Hyatt advised that as a result of the planned refinancing, the Water Fund will have access to funds that were previously set-aside in escrow accounts for the security of the bondholders. These newly available funds are: (1) Debt Service Reserve Fund – The Debt Service Reserve Fund currently has a balance of $4,781,208. After the refinancing, the County will be required to maintain a balance of $1,775,000, for the non-callable 1991 Bonds. This will result in available funds of $3,006,208. (2) Rate Stabilization Fund – When the County issued bonds in 1991, it was for a new system that did not have any history. As additional security for the bondholders, the County was required to establish a Rate Stabilization Fund to protect the revenue stream of the water system. This fund currently has the required balance $3,701,965. October 28, 2003 936 After the refinancing, the County will only be required to maintain a balance of $1,331,250, for the non-callable 1991 Bonds. This will result in available funds of $2,370,715. Ms. Hyatt suggested that the County use the available funds from the water surplus and the reduced escrow balances to reimburse the general fund not to exceed $11 million of the debt service that has been paid on behalf of the water fund. This will still leave sufficient funds in the water fund for known capital improvements. This reimbursement of $11 million from the water fund to the general fund will give the general fund a one-time source of capital that can be used for the pending Public Safety Center project. The decrease in interest income in the water fund, as a result of the transfer of $11 million, will be more than offset by the refinancing savings. Ms. Hyatt advised that staff recommends the following: (1) Reimburse the general fund not to exceed $11 million from the water fund for the payment of debt service on the $15 million general obligation bonds. (2) Appropriate the $11 million to an account for the pending public safety center and equipment. Supervisor McNamara advised that he thought it was premature to appropriate money for a new public safety building without the final proposals and costs. Mr. Hodge advised that Phase 2 of the proposals for the public safety building has to be completed before the final details are determined and putting this money into a reserve account would not eliminate the need for the Board to appropriate these funds at a later time. Mr. Hodge advised that staff felt this was the best combination to get the saving of October 28, 2003 937 $550,000 to $600,000 per year and have a substantial reserve for the Board to be able to afford a new public safety building. If the Board wants to reserve the funds for other purposes, he would recommend putting the funds into a capital account and not the general fund. Supervisor McNamara moved to approve staff recommendation (reimburse the general fund with an amount not to exceed $11 million from the water fund for the payment of debt service on the $15 million general obligation bonds, and appropriate an amount not to exceed $11 million to the Unappropriated Capital Fund Balance). The motion carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None 2. Request to appropriate funding in the amount of $73,057 for the purchase of equipment and software to implement electronic records management system in the Clerk to the Board of Supervisor’s Office. (Diane Childers, Clerk to the Board) A-102803-3 Ms. Childers advised that at the request of the Board, staff has researched methods for implementing an electronic records management system. Surrounding localities have been contacted regarding their records management practices, and 10 of the 12 localities surveyed currently utilize electronic records management systems. The October 28, 2003 938 benefits of implementing this system include the following: (1) reduction of paper costs which are conservatively estimated at $8,000 annually; (2) enhanced research and document retrieval capabilities: the text searching feature of the software will eliminate the need for staff to manually review and index Board actions; (3) a paperless system will conform to the County’s Environmental Assessment Team goal of reducing paper usage by 25% in order to achieve ISO 14001 certification, and is also consistent with the environmental management policy adopted by the Board on August 14, 2001; (3) security of records will be enhanced as a result of having all components of the agenda packet stored in electronic format. At present, it is not possible to obtain all components of the agenda in electronic format and the paper versions are the only official records available. In the event of a disaster, the Clerk’s Office would be unable to recover some of these records. Ms. Childers advised that staff is recommending the purchase of Laserfiche Agenda Manager software. This is an enterprise records management system that can be implemented by other departments within the County. The cost to implement the system is $79,884, which includes the purchase of the software and equipment. Rollover funds in the amount of $6,943 are available to apply to this cost, leaving a balance of $73,057 to be funded from the Capital Fund Unappropriated Balance. In response to inquiries from the Board members, Ms. Childers advised that instant messaging would not be installed, training for the Board and staff would be held in March, and a dual system would be utilized for a period of time. October 28, 2003 939 Supervisor Minnix moved to approve staff recommendation (approve appropriation of funds in the amount of $73,057 from the Capital Fund Unappropriated Balance for the purchase of equipment and software to implement electronic records management system). The motion carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None 3. Request to adopt a prioritized list of Primary and Interstate projects to be presented at the pre-allocation public hearing for the Virginia Department of Transportation Six-Year Improvement Program, fiscal years 2004-2010. (Arnold Covey, Director of Community Development) R-102803-4 Mr. Covey stated that the Virginia Department of Transportation (VDOT) and the Virginia Department of Rail and Public Transportation are holding public hearings throughout the state this fall on next year’s six-year program. This year’s public hearing for the Salem District is scheduled for November 12, 2003 at Christiansburg High School from 5:00 p.m. until 7:00 p.m. In the past, public meetings have been held in early spring. The Secretary of Transportation felt that by holding the public hearings in the fall, VDOT and the Virginia Department of Rail and Public Transportation will have more time to evaluate public input on the transportation priorities that should be included in the new six-year program. The Virginia October 28, 2003 940 Transportation Improvement Program is the Commonwealth Transportation Board’s (CTB) plan for identifying funds anticipated to be available for highway and other forms of transportation construction for distribution in the six-year program. This program is updated annually. Mr. Covey advised that as a part of the development of this program, the CTB conducts public hearings in each of the nine construction districts in the state to receive input from members of the General Assembly, members of the Board of Supervisors, City Council members and members of the general public. Roanoke County is within the Salem District along with eleven (11) other counties and ten (10) cities. All are lobbying for these construction funds. These federal and state funds are allocated according to formulae as mandated by state and federal statutes for interstate, primary and urban roads. The CTB’s Six-Year Improvement Program allocation for the next six years is $6.6 billion for 1,622 projects. The six-year funding allocation for the Salem District Primary System shows a 17% funding increase over last year. The allocation of $99,278,000 was increased to $116,662,000 but the funding allocation to the Smart Road increased also from $36,356,000 to $64,783,000 thus eliminating any opportunity to allocate more funding to other primary projects in the Salem District. Mr. Covey advised that even with this increased funding, Roanoke County is still opposed to the funding allocation decision of the CTB to require that expenditures for Virginia’s Smart Road project be taken or diverted from other approved road projects in the Salem District. October 28, 2003 941 Mr. Covey advised that the following projects identified as “Projects on Improvement Plan” are recommended to continue to receive funding for planning and construction: (1) Interstate 73; (2) Interstate 81; and (3) Route 11/460 (West Main Street). The following projects identified as “Projects not on Plan” have been identified by the Board as extremely important to the growth of the county or for safety improvements and are requested to be included in the Plan for FY 2004-2010: (1) Route 221 (Bent Mountain Road); (2) Route 11 (Williamson Road); (3) Route 115 (Plantation Road); (4) Route 116 (Jae Valley Road; (5) Route 220 S (Franklin Road); and (6) Route 460 E (Challenger Avenue). Projects that deserve consideration for spot improvements include: (1) Route 419 (Electric Road) intersection improvements, (2) Route 118 (Airport Road), (3) Route 24, (Washington Avenue) improvements at the intersection of William Byrd High School, and (4) Route 311 (Catawba Valley Road) at Route 864 (Bradshaw Road) construct a left turn lane. Mr. Covey recommended that the Board adopt the prioritized list of projects and a resolution to be presented at the pre-allocation hearing on November 11, 2003. Supervisor Altizer advised that the environmental study on I-73 has been pushed back to 2004; that I-81 definitely needs improvements; that a decision has to be made on whether to move forward with I-73; and at some time, he suggested that the Board should reconsider their priorities as to I-73 and I-81. Supervisor Minnix advised that Route 221 and Cotton Hill Road are not on the six-year plan and advised that they October 28, 2003 942 should move forward because the situation in this area is becoming increasingly more dangerous. Mr. Covey advised Supervisor Minnix that Route 221 and Cotton Hill Road are not on the Primary and Interstate Allocation Plan but are on the Roanoke County Six-Year Secondary Construction Plan. In response to Supervisor Church’s inquiries, Mr. Covey advised that engineering work had been done on Route 11/460; it has been in the construction plan for three years; and it has been requested to be in the construction plan for ten years. Supervisor Flora advised that according to Mr. Covey, Route 221 was taken off the six-year plan by the CTB. He would support Route 221 as being the Number 1 priority of the County. Supervisor McNamara advised that Route 221 was removed from the plan because the County funding was reduced 30% and when funding for the Smart Road is included, it is a 50% reduction. This year the County received a 17% raise or $16 million which means an extra $26 million for the Smart Road so the County funds are reduced another $10 million from last year. The Commonwealth needs to take the responsibility for road building and the County has expressed its opinion that the Smart Road should not be funded entirely from the Salem district. Supervisor McNamara moved to adopt the resolution. The motion carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None October 28, 2003 943 RESOLUTION 102803-4 REQUESTING VDOT TO CONTINUE FUNDING PROJECTS CURRENTLY IDENTIFIED ON THE PLAN AND ADOPT THOSE PROJECTS IDENTIFIED AS “PROJECTS NOT ON PLAN” FOR INCLUSION INTO THE 2004-2010 INTERSTATE AND PRIMARY SIX YEAR PROGRAM. WHEREAS, the Six Year Program is the Commonwealth Transportation Board’s plan for identifying funds anticipated to be available for highway and other forms of transportation construction; and WHEREAS, this program is updated annually to assist in the allocation of federal and state funds for interstate, primary, and secondary roads. BE IT RESOLVED by the Board of Supervisors of Roanoke County, Virginia as follows: and 1. That it hereby expresses its opposition to the funding allocation decision of the Commonwealth Transportation Board to require that expenditures for Virginia’s Smart Road project be taken or diverted from other approved road projects in the Same District. 2. That it requests the Commonwealth Transportation Board to reconsider its adopted method for distributing funds to road projects within the Salem District, and that it develop a more equitable system for funding these road projects. 3. That the following projects identified as “Projects on Improvement Plan” are recommended to continue to receive funding for planning and construction ? Interstate 73 – Roanoke County continues to be very supportive of this project. In a letter dated June 3, 2001, the Board of Supervisors encouraged VDOT to work closely with the impacted citizens to address their concerns and mitigate any negative impacts to them. This is in addition to the resolution 120500-2 passed December 5, 2000 reaffirming the Boards support for I-73. ? Interstate 81 – Roanoke County continues to support VDOT’s proposed plan to widen I-81 from its present four lanes. We look forward to continuing our partnership with VDOT to develop regional cooperation for storm water detention facilities, potential utility crossings and other design issues that could impact Roanoke County’s future. ? Route 11/460 (West Main Street) – Roanoke County continues to support the ongoing design for improvements in this important commercial and residential development area. Improvements will provide an increase in the level of service bringing it up to standards required for the expected growth. October 28, 2003 944 4. That the following projects identified as “Projects Not on Plan” have been identified by the Board of Supervisors as extremely important to the growth of Roanoke County or for safety improvements and are requested to be included in the Virginia Transportation Plan for Fiscal Years 2004- 2010. They are listed in Priority Order: 1. Route 221 (Bent Mountain Road) Need: Roanoke County is requesting that this project between Coleman Road (Route 735) and Cotton Hill Road (Route 688) be added back on the Six-Year Program. The residential development expected to occur within this area will place additional demands on the road system that is currently providing an inadequate service level. 2. Route 11 (Williamson Road) Need: Now that Route 11 has been widened from Plantation Road to Hollins College, there remains one section of three-lane road from Peters Creek Road (Rte. 117) to the Roanoke City Limits. Additionally, the existing bridge over Carvins Creek does not meet current standards, and the alignment of Florist Road with Route 11 creates additional congestion and safety concerns. The existing section of road, 1.52 miles, is currently a three-lane with the center lane used for turning movements. Ninety percent of the tracts adjacent to Williamson Road are developed for commercial use. 3. Route 115 (Plantation Road) Need: This two-lane section of Plantation Road is approximately 2.43 miles in length width with numerous secondary road connections. The road needs to be improved from Roanoke City limits north to Route 11. If full funding were not available, various spot improvements, such as turn lanes, alignment and grade improvements would help with safety issues. Additional land is available along the road for future development, which will increase traffic and construction costs in the future. 4. Route 220 S (Franklin Road) Need: This section of 220 is approximately 2.0 miles long and is a four-lane divided highway. Recently a traffic study was conducted for a commercial development and the report predicted a level of service of D or F within the next couple of years. Additional lanes and improved vertical alignment is required from the Roanoke City limits south to Rte. 668 (Yellow Mountain Road). Spot improvements are needed now at the intersections of Route 419 and Route 220 S and Rte. 679 (Buck Mountain Road) and Route 220. October 28, 2003 945 5. Route 116 (Jae Valley Road) Need: The Salem Residency has notified staff that the bridge over Back Creek is in need of repair and we wish to offer our support for improvements to the approaches and bridge replacement. This road is serving the growing commuter traffic from Franklin County and recreational traffic to Smith Mountain Lake. 6. Route 460E (Challenger Avenue) Need: This section of Route 460 beginning west of the East Corporate Limits of the City of Roanoke and proceeds east to the Bedford County Line, a distance of 7.59 miles. The continued growth within this corridor has increased traffic demands. Other primary roads in Roanoke County which deserve consideration for spot improvements: 7. Route 419 (Electric Road) Intersection improvements, Route 118 (Airport Road), Route 24, (Washington Ave.) improvements at the intersection of William Byrd High School, Route 311 (Catawba Valley Road) at Route 864 (Bradshaw Road) construct a left turn lane. On motion of Supervisor McNamara to adopt the resolution, and carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None IN RE: REQUEST FOR PUBLIC HEARINGS AND FIRST READING OF REZONING ORDINANCES - CONSENT AGENDA Supervisor McNamara moved to approve first readings and set the second readings and public hearings for November 18, 2003. The motion carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None 1. First reading of ordinance to rezone .81 acres from R-1 Low Density Residential District to C-1 Office District in order to October 28, 2003 946 operate a general office, located at 2415 Electric Road, Windsor Hills Magisterial District, upon the petition of Jeffrey Glick 2. First reading of ordinance to rezone 1.88 acres from I-1 Industrial District to AR Agricultural/Residential District in order to construct single family dwellings, located on Eagle Crest Drive, Cave Spring Magisterial District, upon the petition of Buck Mountain Land, LLC IN RE: FIRST READING OF ORDINANCES 1. First reading of an ordinance authorizing the donation of surplus real estate, Tax Map No. 60.16-09-10, East Cleveland Avenue, Vinton Magisterial District, to Habitat for Humanity. (Elmer Hodge, County Administrator) Mr. Hodge reported that at the October 14, 2003, meeting, the Board approved moving forward with a request from the Roanoke County School Board to donate a parcel of surplus real estate on East Cleveland Avenue to Habitat for Humanity (HFH) This lot is adjacent to the former Roland E. Cook School in the Town of Vinton and was acquired on July 30, 1955, for $850. The School Board declared the property surplus at their meeting on October 9, 2003, since the property had not been used for any purpose in recent years. A request was received from the Vinton Lions Club to donate the lot to HFH for one of their projects. October 28, 2003 947 Mr. Hodge advised that in order to approve the donation of the property to HFH, a second reading and public hearing will need to be held on November 18, 2003. Supervisor Altizer, School Board Member Mike Stovall and Vinton Mayor Don Davis have spoken with several neighboring property owners. In addition, the adjoining property owners have been notified by letter of the proposed donation and will be invited to attend a community meeting on November 3, 2003, at 7:00 p.m. at the Vinton War Memorial. The following exhibits were provided for the Board’s information: (1) rendering of the proposed three-bedroom home; (2) floor plan for the proposed three- bedroom home; and (3) plat showing the location of the home and the adjacent properties. He advised that the following individuals were present at the meeting: Mr. Stovall, School Board member; Karen Mason, Executive Director of HFH; and Tom Dalzell, Project Manager of HFH. Mr. Stovall advised that this idea was conceived by the Vinton Lions Club and presented to him about six or seven months ago. This property is not a buildable lot but does fit the purposes of a HFH project. The School Construction Committee and the School Board have approved the project and he is asking the Board of Supervisors to surplus the property to move forward with the Habitat house. He believes that this house will fit well in the community, and he has not heard any negative comments. However, if concerns from citizens arise at the public hearings or community meeting, they will be addressed. Supervisor Altizer concurred that the lot is not buildable since it October 28, 2003 948 is approximately 50 feet wide but is suitable for the proposed house. He has not received any negative comments about the project. Supervisor McNamara asked Ms. Mason about the progress of the Roanoke County Habitat for Humanity house on Starkey Road. Ms. Mason advised that they are in the process of getting the property surveyed, they anticipate having a volunteer community meeting in the next several weeks, and construction should begin in the early spring. Supervisor Altizer moved to approve the first reading and set the second reading and public hearing for November 18, 2003. The motion carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None IN RE: SECOND READING OF ORDINANCES 1. Second reading of an ordinance authorizing the creation of and financing for a local public works improvement project including acquisition of easements - Club Lane Sewer Line Extension, Windsor Hills Magisterial District. (Gary Robertson, Utility Director) O-102803-5 Mr. Robertson reported that there have been no changes since the first reading of the ordinance. There was no discussion. October 28, 2003 949 Supervisor McNamara moved to adopt the ordinance. The motion carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None ORDINANCE 102803-5 AUTHORIZING THE CREATION OF AND FINANCING FOR A LOCAL PUBLIC WORKS IMPROVEMENT PROJECT INCLUDING ACQUISITION OF EASEMENTS BY DONATION OR BY PURCHASE – CLUB LANE SEWER LINE EXTENSION WHEREAS, Ordinance 112288-7 authorizes the financing of local public works improvements and the imposition of special assessments upon abutting property owners upon the adoption of an appropriate ordinance by the Board of Supervisors; and WHEREAS, the County Administration has negotiated the extension of the public sewer system to the Club Lane and Valley Drive area of the County; and WHEREAS, the extension of the public sewer system and the creation of a special utility (sewer) service area will alleviate a critical public health and safety problem; and WHEREAS, several of the residents have requested that the County allow them to pay their portion of the costs of connection to the public sewer system over ten years at an interest rate of 8%; and WHEREAS, the first reading of this Ordinance was held on October 14, 2003, and the second reading was held October 28, 2003; and BE IT ORDAINED by the Board of Supervisors of Roanoke County, Virginia, as follows: 1. That pursuant to the authority of Ordinance 112288-7, the Board authorizes and approves a local public works improvement project, namely, public sewer extension to the Club Lane and Valley Drive area of the County. The total construction cost of this public sewer project is estimated to be $115,000, to be initially financed as follows: Citizen Participation ( 10 at $6,400.00) $64,000 each) Advance from the Public Works $51,000 Participation Fund TOTAL $115,000 October 28, 2003 950 That there is hereby appropriated for this project the sum of $51,000 from the Public Works Participation Fund. Any citizen participation under paragraph 3. will be advanced as a loan from the Sewer Fund. 2. That the “Project Service Area” is shown and designated on the attached plat entitled “Club Lane Sanitary Sewer Petition for Public Works Project” prepared by the Roanoke County Utility Department, dated 15 September 2003. The Project Area is created for a period of ten (10) years. Any owner of real estate within this service area may participate in and benefit from the public water extension to this service area by paying at a minimum the sum of $7,400 ($6,400 toward construction costs plus, plus $1,000 toward the off-site facility fee) said costs to be paid in full and in advance of connection to the public water extension. 3. That the Board authorizes and approves the payment by the property owners in the project service area who elect to participate on or before December 27, 2003, of their portion of the cost of extending the public water system to their properties in accordance with the following terms and conditions: (a) The total amount per property owner/residential connection may be financed for 10 years at an interest rate of 8% per annum. Down payment of $1,000.00 will be applied to the off-site facility fee. (b) Property owners agree to execute a promissory note or such other instrument as the County may require securing this installment debt. (c) Property owners further agree to execute such lien document or instrument as may be required by the County; said lien document or instrument to be recorded in the Office of the Clerk of the Circuit Court of Roanoke County. This lien instrument or document shall secure the repayment of the promissory note by the property owners to the County and shall be a lien against the property of the owners. Property owners also agree to pay the County any Clerk’s fees or recordation costs which may be required to record any lien instrument or documents in the Office of the Clerk of the Circuit Court. (d) Property owners who wish to participate after the December 27, 2003, deadline (other than new property owners) shall pay a minimum of $9,680 [$6,400 construction costs plus 20% (plus $30 x length of road frontage in excess of 250 feet) plus the off-site facility fee in effect at that time (currently $2,000)]. New property owners (defined as persons who acquire ownership of real estate within the Project Service Area after the date of the adoption of this Ordinance) shall have ninety (90) days from the date of their acquisition of the real estate to participate in and benefit from the public water/sewer extension to this service area by the payment of $7,400, said costs to be paid in full and in advance of connection to the public sewer extension. New property owners are not eligible to participate in the installment financing payment method described above in paragraph 3. 4. That the payment by citizens in the project service area, in excess of those anticipated in this ordinance, who elect to participate shall be made to the various funds as follows: The off-site facility fee shall be returned to the Sewer Fund, and October 28, 2003 951 payment of the construction costs shall be returned to the Public Works Participation Fund until such time as the advance has been repaid; any further payment of construction costs shall be returned to the Sewer Fund. 5. That the acquisition and acceptance of the necessary water and sewer line easements, as shown on the attached map for the Club Lane Sanitary Sewer Project, either by donation or by purchase pursuant to paragraph 6 of this ordinance, is hereby authorized across the following properties, referenced by tax map number: 67.10-1-10 67.10-1-12 67.10-1-13 67.10-1-14 67.10-1-15 67.10-1-16 67.10-1-22 67.10-1-23 67.10-1-24 6. That the consideration for these easement acquisitions shall not exceed a value equal to 40% of the current tax assessment for the property to be acquired plus the cost of actual damages, if any, or the amount determined by an independent appraisal; and 7. That the consideration for these easements shall be paid from the Sewer Repair and Replacement Fund; and 8. That the County Administrator is authorized to take such actions and execute such documents as may be necessary to accomplish the purposes of this transaction, all upon form approved by the County Attorney. On motion of Supervisor McNamara to adopt the ordinance, and carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None IN RE: APPOINTMENTS 1. Industrial Development Authority Supervisor Church nominated Carole Brackman from the Catawba Magisterial District to serve an additional four-year term which will expire September 26, 2007. He asked that confirmation of her appointment be added to the Consent Agenda. IN RE: CONSENT AGENDA R-102803-6 October 28, 2003 952 Supervisor McNamara moved to adopt the consent resolution. The motion carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None RESOLUTION 102803-6 APPROVING AND CONCURRING IN CERTAIN ITEMS SET FORTH ON THE BOARD OF SUPERVISORS AGENDA FOR THIS DATE DESIGNATED AS ITEM K - CONSENT AGENDA BE IT RESOLVED by the Board of Supervisors of Roanoke County, Virginia, as follows: 1. That the certain section of the agenda of the Board of Supervisors for October 28, 2003, designated as Item K - Consent Agenda be, and hereby is, approved and concurred in as to each item separately set forth in said section designated Items 1 through 9, inclusive, as follows: 1. Approval of minutes - October 14, 2003 2. Request from schools to accept and appropriate funds in the amount of $45,000 from the State Department for a pilot study at William Byrd High School to provide an in-school focused social skills and behavioral intervention program for students with disabilities 3. Request to accept and appropriate an all hazards planning grant in the amount of $20,990 from the Commonwealth of Virginia Department of Emergency Management 4. Proclamation declaring the week of October 12 through 18, 2003, as National Adult Immunization Awareness Week 5. Acceptance of donation of a 20’ water line easement from Bonsack Baptist Church, Hollins Magisterial District 6. Authorization to exercise an option to purchase communications equipment, building and tower from the Western Virginia Emergency Medical Services Council 7. Request from the Police Department to accept and appropriate Local Law Enforcement Block Grant (LLEBG) in the amount of $29,117 from the Bureau of Justice Assistance 8. Request to approve amendments to the length of service awards program (LOSAP) adoption agreement for the volunteer fire and rescue personnel concerning eligibility requirements 9. Confirmation of committee appointment to the Industrial Development Authority October 28, 2003 953 2. That the Clerk to the Board is hereby authorized and directed where required by law to set forth upon any of said items the separate vote tabulation for any such item pursuant to this resolution. On motion of Supervisor McNamara to adopt the resolution, and carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None IN RE: REQUESTS FOR WORK SESSIONS 1. Request for work session on November 18, 2003, concerning the Secondary Road System Six-Year Construction Plan for fiscal years 2004-2010 and consideration of projects for fiscal year 2004-2005 in the Virginia Department of Transportation Revenue Sharing Program. (Arnold Covey, Director of Community Development) It was the consensus of the Board to schedule the work session on November 18, 2003. IN RE: CITIZENS' COMMENTS AND COMMUNICATIONS Ms. Annie Krochalis, 9428 Patterson Drive, advised that she was concerned about the impact of I-81 on the County’s Comprehensive and Community Plan and feels it should be reviewed by the Planning Commission. She advised that the a presentation by Reebie & Associates who are the contractors in the Virginia Department of Rail and Public Transportation’s study of potential diversion of I-81 freight to rail is on the internet. She feels that the rail option is feasible since the Reebie study indicates over a 28% potential diversion of through-state freight traffic to rail. October 28, 2003 954 Ms. Kristin Peckman, 8131 Webster Drive, advised that she is a member of RAIL Solutions and wanted to comment on the draft by Anthony Ford, Traffic Engineer, to the five questions from VDOT concerning the two proposals for I-81 which will be discussed in a later work session. She asked that Question No. 2 “Does this proposal, on its own merits, warrant consideration by VDOT’s Commissioner for negotiation of a comprehensive agreement?” be amended to “No” instead of “Yes” because neither of the two proposals, when looked at closely, actually improves either safety or mobility on I-81. IN RE: REPORTS Supervisor McNamara moved to receive and file the following reports. The motion carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None 1. General Fund Unappropriated Balance 2. Capital Fund Unappropriated Balance 3. Board Contingency Fund 4. Future Capital Projects 5. Accounts Paid – September 2003 6. Statement of expenditures and estimated and actual revenues for the month ended September 30, 2003 7. Report of Claims Activity for the Self-Insurance Prog ram October 28, 2003 955 IN RE: CLOSED MEETING At 4:53 p.m., Supervisor McNamara moved to go into closed meeting following the work sessions pursuant to the Code of Virginia Section 2.2-3711 A (7) consultation with legal counsel pertaining to probable litigation, namely methadone clinic; Section 2.2-3711 A (1) discussion or consideration of the performance of specific public officers; Section 2.2-3711 A (1) discussion or consideration of appointments to the Western Virginia Water Authority; and Section 2.2-3711 A (7) consultation with legal counsel pertaining to actual litigation, namely Woltz condemnation. The motion carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None th IN RE: WORK SESSIONS – 4 Floor Conference Room (5:00 p.m.) 1. Work session to discuss the Interstate 81 Public Private Transportation Act (PPTA) improvement project, specifically the detailed proposal review comments. (Arnold Covey, Director of Community Development; Anthony Ford, Traffic Engineer) The work session was held from 5:00 p.m. until 5:30 p.m. Mr. Covey advised that this is an opportunity for staff to inform the Board on the progress of the Virginia Department of Transportation’s Public Private Transportation Act (PPTA) review process as it pertains to the I-81 Corridor Improvement Project. VDOT has requested that affected localities along the I-81 corridor evaluate the proposals to help them October 28, 2003 956 determine where or not they merit advancement to the next staff in the PPTA evaluation and to provide comments on the detailed proposals. Mr. Ford gave a power point presentation describing the details of the proposals from STAR Solutions and FLUOR Virginia, Inc. He presented the County’s draft answers to the five questions from VDOT for both proposals. There was consensus to move forward with sending the review comments to VDOT to meet the deadline of November 4, 2003. It was suggested that staff add a comment to Question #2 on both proposals stating that the County would also support government funded development. It was the understanding of the Board that staff will continue to work with whichever proposal is chosen to finalize the designs for I-81. 2. Work session to consider initiatives for the 2004 Session of the Virginia General Assembly. (Paul Mahoney, County Attorney; Pete Giesen, Special Assistant for Legislative Relations) The work session was held from 5:20 p.m. until 5:40 p.m. Mr. Mahoney stated that Mr. Giesen was present and the purpose of the work session is to review legislative initiatives for 2004. He advised that some of these initiatives are unique to Roanoke County and some are for the state and being put forth by both VML and VACo. He advised that based on this work session, he would draft a resolution to set out the County legislatives initiatives for the 2004 Session of the General Assembly. Last year, the County was co-host on Legislative Day with other localities to bring together legislators from the western part of the state to have an opportunity to build October 28, 2003 957 alliances. Mr. Mahoney reported that Mr. Giesen advised that Legislative Day is February 12, 2004. Mr. Mahoney advised that he felt the Number 1 priority for Roanoke County is to amend the County Charter to get taxing authority for tobacco products but at this time, they do not have a patron for this legislation. Mr. Giesen advised that progress was made last year when the bill failed to get out of committee by a 9 to 6 vote, and it is possible that more progress can be made this year. Mr. Giesen advised that a bill may be introduced seeking a statewide tobacco tax between 20 and 30 cents per pack which will restrict localities from enacting a tobacco tax and rescind those who have the tax, and the revenues would be distributed on the basis of a population formula. However, there is opposition and the trade-off may be eliminating the BPOL tax. After discussion, there was consensus as follows: (1) Mr. Mahoney will bring back on November 18 a resolution of the items listed in his report for the 2004 Legislative Program; and (2) the Board will hold a legislative dinner on February 12 in connection with VML/VACo Legislative Day in Richmond. 3. Work Session on Public Safety Building Proposal Review under the Public-Private Education Facilities and Infrastructure Act of 2002 (PPEA). (Dan O’Donnell, Assistant County Administrator) The work session was held from 5:40 p.m. until 5:55 p.m. Mr. Hodge advised that there are three proposals from companies which will have to make an October 28, 2003 958 investment of $50,000 to move forward to the next phase. If the Board would like to move forward with only two proposals, Mr. O’Donnell is prepared to share a presentation with the rankings of the proposals at this time. However, if the Board would like to move forward with all three proposals, staff would suggest contacting each company individually and inform then of their ranking to make sure that each company wants to continue with the process. At the next Board meeting, Mr. O’Donnell would make a presentation to the Board. One of the components that is not yet selected is the site for the facility. Staff is looking at County sites. as well as some of the sites recommended by the companies. After discussion, there was consensus for staff to move the three proposals received to Phase 2: Northrop-Grumman Mission Systems, SafetyFirst Consortium and Public Facility Consortium, LLC. 4. Work session on the progress of the Police Department accreditation. (Ray Lavinder, Chief of Police) The work session was held from 5:55 p.m. until 6:08 p.m. Mr. Hodge reported that the Police Department is seeking re-accreditation for the third time. Chief Lavinder reviewed the Assessment Team’s on-site final report and advised that a hearing to approve the re-accreditation will be held on November 22 at the Commission on Accreditation for Law Enforcement Agencies conference in Colorado Springs, Colorado. October 28, 2003 959 5. Work session on the Community Emergency Response Team (CERT) Program. (Rick Burch, Chief of Fire & Rescue) The work session was held from 6:08 p.m. until 6:20 p.m. Division Chief Joey Stump described the program and advised that it is designed to prepare citizens to help themselves and others during times of catastrophic events until emergency responders can arrive. This is a regional program sponsored by the Virginia Department of Emergency Management. 6. Work session concerning recovery of DUI expenses. (Paul Mahoney, County Attorney) The work session was postponed until the December 16, 2003 meeting. IN RE: CLOSED MEETING The closed meeting was held from 6:20 p.m. until 6:50 p.m. IN RE: CERTIFICATION RESOLUTION R-102803-7 At 7:10 p.m., Chairman McNamara moved to return to open session and adopt the certification resolution. The motion carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None RESOLUTION 102803-7 CERTIFYING THE CLOSED MEETING WAS HELD IN CONFORMITY WITH THE CODE OF VIRGINIA WHEREAS, the Board of Supervisors of Roanoke County, Virginia has convened a closed meeting on this date pursuant to an affirmative recorded vote and in accordance with the provisions of The Virginia Freedom of Information Act; and October 28, 2003 960 WHEREAS, Section 2.2-3712 of the Code of Virginia requires a certification by the Board of Supervisors of Roanoke County, Virginia, that such closed meeting was conducted in conformity with Virginia law. NOW, THEREFORE, BE IT RESOLVED, that the Board of Supervisors of Roanoke County, Virginia, hereby certifies that, to the best of each members knowledge: 1. Only public business matters lawfully exempted from open meeting requirements by Virginia law were discussed in the closed meeting which this certification resolution applies, and 2. Only such public business matters as were identified in the motion convening the closed meeting were heard, discussed or considered by the Board of Supervisors of Roanoke County, Virginia. On motion of Supervisor McNamara to adopt the resolution, and carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None IN RE: WELCOME Chairman McNamara welcomed the following representatives from Vinton Town Council: Mayor Don Davis, Councilman Brad Grose, and Councilman Bob Altice. Also present were Clay Goodman, Vinton Town Manager, and Hunter Young, from Mattern & Craig Consulting Engineers for the Vinton Business Center. IN RE: NEW BUSINESS 1. Request for approval of a resolution proceeding to the Detailed Design Phase for the construction of a new Public Safety Communications Center under the Public-Private Education Facilities And Infrastructure Act of 2002 (PPEA). (Dan O’Donnell, Assistant County Administrator) R-102803-8 October 28, 2003 961 Mr. O’Donnell advised that the public safety communication center houses the police department, the fire & rescue department, information technology, the dispatch center and the emergency operations center. The need for a new facility became evident as the 9-1-1 calls have been increasing. In 1991, approximately 46,000 9-1-1 calls came through the center and the first six months of this year, there have been 49,000 calls. Among the concerns are that there is no space to expand the dispatch center; security needs have increased; and the age, condition and size of the facility which was built in 1939 and has been renovated several times in the 1980s. Mr. O’Donnell reported that on September 15, the County received proposals from two development groups, Safety First and Public Facilities Consortium, in response to a published notice of acceptance of an unsolicited proposal from Northrop-Grumman Corporation for the development of a Public Safety Communications Center/Public Safety Building. The proposals were developed in accordance with the provisions of the Public-Private Educational Infrastructure and Facilities Act of 2002 (PPEA). Mr. O’Donnell advised that Mr. Hodge and the appropriate staff have reviewed all three proposals and at the work session held earlier today, Mr. Hodge recommended moving forward with all three proposals. Under the provisions of the PPEA legislation, the Board must pass a formal resolution should it wish to move the project forward. Mr. O’Donnell advised that at this stage in the proposal process, there is no fiscal impact on the County other than the staff time spent on reviewing the future October 28, 2003 962 phase 2 proposals. Firms chosen to develop phase 2 proposals must submit a total of $50,000 to defray the cost of the reviews for the County, should they wish to continue in the PPEA development process. Under the PPEA legislation, there are several possible alternatives: (1) Reject all proposals and discontinue the project development process. (2) Choose to move only one proposal forward to the detailed design phase. (3) Choose to move multiple proposals forward to the detailed design phase. Supervisor Minnix moved to adopt and amend the resolution as required to move the three proposals forward to the detailed design phase: Northrop-Grumman Mission Systems, SafetyFirst Consortium and Public Facility Consortium, LLC. The motion carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None RESOLUTION 102803-8 PROCEEDING TO THE DETAILED DESIGN PHASE FOR THE CONSTRUCTION OF A NEW PUBLIC SAFETY COMMUNICATIONS CENTER UNDER THE PUBLIC-PRIVATE EDUCATION FACILITIES AND INFRASTRUCTURE ACT OF 2002 WHEREAS, the Public-Private Education Facilities and Infrastructure Act of 2002 (PPEA) allows the Roanoke County to create a public-private partnership to develop projects for public use; and WHEREAS, by Resolution 051304-4 the Board of Supervisors of Roanoke County adopted procedures for the implementation of the PPEA by Roanoke County; and WHEREAS, Northrop-Grumman Mission Systems had submitted an unsolicited proposal under the provisions of the PPEA to construct an emergency communications/public safety center for Roanoke County; and WHEREAS, by Resolution 062403-1 the Board of Supervisors of Roanoke County accepted the Northrop-Grumman Mission Systems unsolicited proposal for publication and conceptual phase consideration and it invited the submission of competing preliminary proposals; and October 28, 2003 963 WHEREAS, the SafetyFirst Consortium and the Public Facility Consortium, LLC have submitted proposals pursuant to these procedures; and WHEREAS, the County Administrator has reviewed these proposals and has recommended to the Board of Supervisors that it proceed to review two competing proposals at the detailed design phase. 1. That there is a public need for an emergency communications/public safety center for Roanoke County. 2. That it chooses to accept the following proposals for detailed Phase 2 proposal review pursuant to Section VI. B. of the County’s procedures: Northrop- Grumman Mission Systems, SafetyFirst Consortium and Public Facility Consortium, LLC. On motion of Supervisor Minnix to adopt the resolution to move three proposals forward to the detailed design phase: Northrop-Grumman Mission Systems, SafetyFirst Consortium and Public Facility Consortium, LLC., and carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None IN RE: PUBLIC HEARING 1. Public hearing to receive citizen comments regarding a proposed amendment to the Roanoke County Charter seeking authority to levy and collect taxes on cigarette and tobacco products. (Paul Mahoney, County Attorney) Mr. Mahoney advised that on September 23, 2003, the Board authorized the publication of a legal notice scheduling a public hearing on October 28, 2003, seeking citizen comment on the proposed amendment to the Roanoke County Charter. This notice was published on October 14, 2003. If the Board favorably approves the recommendation, this amendment would become part of Roanoke County’s Legislative Program for the 2004 General Assembly Session. The Board acted favorable upon this proposal last year because they felt that it is a matter of fairness and equity since the October 28, 2003 964 Cities of Roanoke and Salem have this taxing power. The City of Roanoke initially had a 17 cents levy but this has been recently increased to 27 cents which has generated over $2 million. The City of Salem has a 15 cents levy and for a partial year, they have accumulated $600,000. Based upon calculations by the Finance staff, it has been estimated that each cent of levy will generate about $40,000 for the County. The County would like the General Assembly to grant the same power to levy 15 cents as does the City of Salem. Mr. Mahoney suggested that the Board advise the General Assembly that as part of this legislation, they would agree that any tax revenues generated for the County would be appropriated for public safety and emergency response services. If the Board wants to go forward with this amendment, he will prepare a resolution with the other legislative items for action by the Board at their November 18, 2003 meeting. Supervisor Church advised that the County has been at a disadvantage concerning this user fee and it is unfair. He agreed to pursue the recommendation with the General Assembly that the revenues would be directed to public safety. Supervisor Minnix asked Mr. Mahoney if the Commonwealth takes any portion of the revenues if the County institutes a tobacco tax. Mr. Mahoney advised that they would not if the levy is a part of the County Charter. He mentioned that in the work session today, Mr. Giesen described a proposal being considered by the tax restructuring division to impose a statewide tobacco tax that would eliminate the power of all localities to levy a tax. The state would remit a portion or part of those revenues to October 28, 2003 965 each locality on a population basis. If the proposal is done under the County’s Charter, the state would not take a portion of the revenues, but the amendment would have to come back to the Board for adoption as a local ordinance before being implemented. There were no citizens present to speak on this matter. Supervisor Church moved to approve holding the public hearing. The motion carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None IN RE: PUBLIC HEARINGS AND SECOND READINGS OF ORDINANCES 1. Second reading of an ordinance to obtain a special use permit to construct a mini warehouse facility and offices located one- half mile from Plantation Road on Angel Lane, Catawba Magisterial District, upon the petition of MJH Development. (Janet Scheid, Chief Planner) O-102803-9 Ms. Scheid reported that this is the petition of MJH Development to obtain a Special Use Permit to construct a mini warehouse facility and offices located 1/2 mile from Plantation Road on Angel Lane. The Planning Commission recommended approval with three conditions: (1) Development of the site shall be in sufficient conformity to the August 20, 2003 plan developed by Providence Engineering. (2) The applicant shall provide an easement, if one does not currently exist, on their land for the October 28, 2003 966 extension of Angel Lane to the adjoining I-1 English property. (3) The color of the buildings and doors shall be non-reflective and of earth-tone colors. Appropriate groundcover, approved by planning staff during site plan review, shall be provided on all slopes 3:1 or greater within the limits of disturbance. (4) A 10’ wide landscaping strip shall be provided between I-81 and the mini-warehouse building labeled 4800 square feet. Within this landscaping strip, Leyland Cypress trees shall be planted at a minimum of 10’ in height at the time of planting and no more than 10’ on center. Supervisor Church inquired if the petitioner was present and in agreement with all four conditions. Mr. Shawn Goldsmith, Providence Engineering, representing MJH Development, advised that the petitioner does not agree with Condition #2. Ms. Scheid advised Supervisor Flora that the condition to provide an easement across another property was the subject of much discussion at the Planning Commission meeting. The property which is directly to the west is owned by English Property and zoned industrial and can only be accessed from Lock Haven Road if the frontage road, Angel Road, stops at the petitioner’s property and does not go through this property. There was some discussion that Lock Haven Road would be an inappropriate road for industrial access and the Planning Commission wanted the English property to be accessed from Angel Lane which would require the easement through the petitioner’s property. Supervisor Flora advised that he was concerned with requiring someone to grant an easement for property that already has access. Ms. Scheid advised that the Planning Commission thought it would be in the community’s October 28, 2003 967 interest that access to this industrial property which might be developed should be from Angel Road rather than Lock Haven Road because Lock Haven is fairly residential. Supervisor Flora asked if this would be considered a taking without compensation and Mr. Mahoney advised that if the petitioner was not in agreement with the condition, he would consider this to be a “taking” also. Mr. Goldsmith advised that this property is slightly larger than 50 acres and the developer is proposing to develop less than 10% of it. There is a 150 foot easement for American Electric Power, an I-81 right-of-way at the lower property line and a parallel 50 feet wide gas easement. The developable property between these easements is very limited and the property above the AEP easement is too steep for development. There is another paper access street to the industrial parcel of land and they request that this be considered access to that property instead of forcing them to grant a 50 foot right-of-way which would significantly reduce the amount of area to be developed. Mr. Goldsmith confirmed to Supervisor Flora that this property was clear cut a few years ago. Supervisor Flora advised that he feels that the petitioner understates the difficulty of the topography above the AEP lines for development. Supervisor Flora advised that he wanted to clarify that he did not have any conversations with the petitioner before tonight but he concurred with the thinking of the Planning Commission that Lock Haven Road is not an appropriate access for industrial development. He would hope that if the land is developed in the future, access through October 28, 2003 968 this property could be obtained through the process of negotiations Supervisor Church moved to adopt the ordinance with conditions but deleting Condition #2 (The applicant shall provide an easement, if one does not currently exist, on their land for the extension of Angel Lane to the adjoining I-1 English property). The motion carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None ORDINANCE 102803-9 GRANTING A SPECIAL USE PERMIT TO MJH DEVELOPMENT TO CONSTRUCT A MINI-WAREHOUSE FACILITY AND OFFICES TO BE LOCATED ONE-HALF MILE FROM PLANTATION ROAD ON ANGEL LANE (TAX MAP NO. 17.00-1-2) CATAWBA MAGISTERIAL DISTRICT WHEREAS, MJH Development has filed a petition for a special use permit to construct a mini-warehouse facility and offices to be located one-half mile from Plantation Road on Angel Lane (Tax Map No. 17.00-1-2) in the Catawba Magisterial District; and WHEREAS, the Planning Commission held a public hearing on this matter on October 7, 2003; and WHEREAS, the Board of Supervisors of Roanoke County, Virginia, held a first reading on this matter on September 23, 2003; the second reading and public hearing on this matter was held on October 28, 2003. NOW, THEREFORE, BE IT RESOLVED by the Board of Supervisors of Roanoke County, Virginia, as follows: 1. That the Board finds that the granting of a special use permit to MJH Development to construct a mini-warehouse facility and offices to be located one-half mile from Plantation Road on Angel Lane in the Catawba Magisterial District is substantially in accord with the adopted 2000 Community Plan pursuant to the provisions of Section 15.2-2232 of the 1950 Code of Virginia, as amended, and said special use permit is hereby approved with the following conditions: (1) Development of the site shall be in sufficient conformity to the August 20, 2003 plan developed by Providence Engineering. (2) The applicant shall provide an easement, if one does not currently exist, on their land for the extension of Angel Lane to the adjoining I-1 English property. October 28, 2003 969 (3) The color of the buildings and doors shall be non-reflective and of earth- tone colors. Appropriate groundcover, approved by planning staff during Site Plan review, shall be provided on all slopes 3:1 or greater within the limits of disturbance. (4) A 10’ wide landscaping strip shall be provided between I-81 and the mini- warehouse building labeled 4800 S.F. Within this landscaping strip, Leyland Cypress trees shall be planted at a minimum of 10’ in height at the time of planting and no more than 10’ on center. 2. That this ordinance shall be in full force and effect thirty (30) days after its final passage. All ordinances or parts of ordinances in conflict with the provisions of this ordinance be, and the same hereby are, repealed. The Zoning Administrator is directed to amend the zoning district map to reflect the change in zoning classification authorized by this ordinance. On motion of Supervisor Church to adopt the ordinance with conditions but deleting Condition #2 (The applicant shall provide an easement, if one does not currently exist, on their land for the extension of Angel Lane to the adjoining I-1 English property) and carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None 2. Second reading of an ordinance to vacate portions of a 15’ sanitary sewer easement, a 15’ water line easement, and a 5’ public utility easement upon Lots 15 and 16, Plat of Section No. 2, Quail Ridge, recorded in Plat Book 26, Page 3, and resubdivided by Plat of Section No. 2, Quail Ridge, recorded in Plat Book 26, Page 197, Cave Spring Magisterial District. (Arnold Covey, Director of Community Development) O-102803-10 Mr. Covey reported that here have been no changes since the first reading of the ordinance on October 14, 2003. There was no discussion and no citizens were present to speak on this item. October 28, 2003 970 Supervisor Minnix moved to adopt the ordinance. The motion carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None ORDINANCE 102809-10 TO VACATE PORTIONS OF A 15' SANITARY SEWER EASEMENT, A 15' WATER LINE EASEMENT, AND A 5' PUBLIC UTILITY EASEMENT UPON LOTS 15 AND 16, ON THE PLAT OF SECTION NO. 2, QUAIL RIDGE, RECORDED IN PLAT BOOK 26, PAGE 3, AND RESUBDIVIDED BY PLAT OF SECTION NO. 2, QUAIL RIDGE, RECORDED IN PLAT BOOK 26, PAGE 197, LOCATED IN THE CAVE SPRING MAGISTERIAL DISTRICT WHEREAS, by subdivision plat for ‘Section No. 2, “”’,dated October QUAIL RIDGE 4, 2002, and of record in the Clerk’s Office of the Circuit Court of Roanoke County, Virginia, in Plat Book 26, page 3, the developer, R & J Enterprises, LLC, dedicated and created a “NEW 15' SANITARY SEWER EASEMENT “ and a “NEW 15' WATER LINE EASEMENT”, both shown in the Detail on Sheet 3 of said plat, and a “5' PUBLIC UTILITY EASEMENT” shown on Sheet 2 of said plat; and, WHEREAS, by re-subdivision plat for ‘Section No. 2, “”’,dated July QUAIL RIDGE 25, 2003, and of record in the aforesaid Clerk’s Office in Plat Book 26, page 197, a portion of the 24' right-of-way for Quail Ridge Circle was vacated, a portion of the 5' public utility easement was relocated, and Lots 14, 15, and 16 were reconfigured to larger and more desirable lot s; and, WHEREAS, as a result of the resubdivision, portions of the 15' sanitary sewer easement and 15' water line easement are no longer required; and, WHEREAS, the Petitioner-Developer, R & J Enterprises, LLC, has requested that the unnecessary portions of the sanitary sewer easement, the water line easement, and the public utility easement, as shown on Exhibit A attached hereto, be vacated pursuant to §15.2-2272.2 of the Code of Virginia (1950, as amended); and, WHEREAS, these vacations will not involve any cost to the County, will not interfere with the provision of public services, and have been approved by the affected public utility companies and County departments; and, WHEREAS, notice has been given as required by § 15.2-2204 of the Code of Virginia (1950, as amended); the first reading of this ordinance was held on October 14, 2003, and the public hearing and second reading of this ordinance was held on October 28, 2003. NOW, THEREFORE, BE IT ORDAINED by the Board of Supervisors of Roanoke County, Virginia, as follows: October 28, 2003 971 1. That the “15' SANITARY SEWER EASEMENT TO BE VACATED”, the “15' WATER LINE EASEMENT TO BE VACATED”, and the “5' PUBLIC UTILITY EASEMENT TO BE VACATED”, described and shown cross-hatched on Exhibit A attached hereto, said easements having been dedicated and created by subdivision plat for ‘Section No. 2, “”’,dated October 4, 2002, and recorded in Plat Book 26, QUAIL RIDGE page 3, located in the Cave Spring Magisterial District, be, and hereby are, vacated pursuant to Section 15.2-2272 of the Code of Virginia (1950, as amended). 2. That all costs and expenses associated herewith, including but not limited to publication, survey and recordation costs, shall be the responsibility of the Petitioner, R & J Enterprises, LLC. 3. 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. 4. 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 Roanoke County, Virginia, in accordance with § 15.2-2272.2 of the Code of Virginia (1950, as amended). On motion of Supervisor Minnix to adopt the ordinance, and carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None 3. Second reading of an ordinance to vacate a portion of an existing 10’ public utility easement between Lots 22, 23, 24 and 25 dedicated in Plat Book 3, Page 1, Tinker Knoll, Hollins Magisterial District. (Arnold Covey, Director of Community Development) O-102803-11 Mr. Covey reported that here have been no changes since the first reading of the ordinance on October 14, 2003. There was no discussion and no citizens were present to speak on this item. October 28, 2003 972 Supervisor Flora moved to adopt the ordinance. The motion carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None ORDINANCE 102803-11 AUTHORIZING THE VACATION OF A PORTION OF AN EXISTING 10-FOOT PUBLIC UTILITY EASEMENT LOCATED BETWEEN LOTS 22, 23, 24 AND 25, TINKER KNOLL, PLAT BOOK 3, PAGE 1, IN THE HOLLINS MAGISTERIAL DISTRICT WHEREAS, by subdivision plat entitled "TINKER KNOLL", dated February 7, 1947, and recorded in the Clerk's Office of the Circuit Court of Roanoke County, Virginia, in Plat Book 3, page 1, certain public easements were created, including a 10’ utility easement located between Lots 22, 23, 24, and 25; and, WHEREAS, the petitioners, Donald W. Beckner, Jr., and Donna L. Beckner, husband and wife, are the owners of Lot 24, Tinker Knoll, and the adjacent owners, James Robert Hill and Debbie Rodey Hill (Lot 22), Kathyleen H. Damewood (Lot 23), and Wynn B. Brua (Lot 25), have joined in petitioners’ request to vacate the easement; and, WHEREAS, the Petitioners have requested that said portion of the utility easement be vacated by the Board of Supervisors of Roanoke County, Virginia, pursuant to 15.2-2272.2 of the Code of Virginia (1950, as amended); and, ' WHEREAS, this vacation will not involve any cost to the County and the affected County departments have raised no objection; and, WHEREAS, there has been no objection raised by the appropriate public utility companies entitled to use the subject easement; and, WHEREAS, notice has been given as required by 15.2-2204 of the Code of ' Virginia (1950, as amended), and the first reading of this ordinance was held on October 14, 2003; the public hearing and second reading of this ordinance was held on . October 28, 2003 THEREFORE, BE IT ORDAINED by the Board of Supervisors of Roanoke County, Virginia, as follows: 1. That the public utility easement, being ten feet (10') in width and extending between Lots 22, 23 and 24, and further extending between Lots 24 and 25, in Tinker Knoll Subdivision, in the Hollins Magisterial District of the County of Roanoke, Virginia, as shown on the subdivision plat entitled "TINKER KNOLL", dated February 7, 1947, and recorded in the aforesaid Clerk's Office in Plat Book 3, page 1, and as further October 28, 2003 973 shown as “10’ Public Utility Easement” on Exhibit A attached hereto, be, and hereby is, vacated pursuant to 15.2-2272 of the Code of Virginia (1950, as amended). ' 2. That all costs and expenses associated herewith, including but not limited to publication, survey and recordation costs, shall be the responsibility of the Petitioners. 3. 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. 4. 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 Roanoke County, Virginia, in accordance with 15.2-2272.2 of the Code ' of Virginia (1950, as amended). On motion of Supervisor Flora to adopt the ordinance, and carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None 4. Second reading of ordinances concerning cable television franchise: (Joseph B. Obenshain, Senior Assistant County Attorney) (a) Ordinance approving the revised cable television franchise O-102803-12 Mr. Obenshain stated that this is the second reading of two ordinances which will approve the renewal of the cable television franchise for the County, the City of Roanoke and the Town of Vinton. The City and Town have approved these ordinances. The first ordinance will adopt a revised cable television franchise which will replace the existing franchise and update it with the changes in the federal telecommunications laws which have occurred since the 1991 franchise was approved. October 28, 2003 974 The second ordinance will authorize the new franchise agreement which will provide for a fifteen year franchise, continuation of the 5% franchise fee, a capital grant over the next six years of $1.5 million, continuation of Governmental Education Access channels including RVTV on Channel 3, and a provision for up to five more additional access channels for the future. He expressed appreciation to Mr. Altizer, member of the Regional Cable Television Committee; Mr. Altice, Chair of the Regional Cable Television Committee; and the many other people who assisted in negotiating the agreement. Chairman McNamara advised that much work has been done to reach this agreement, and it is important that granting this franchise be done very carefully because this gives a company the ability to operate a monopoly within this jurisdiction. Mr. Obenshain advised that this franchise agreement is non-exclusive and does not prevent another company from doing business. However, he does not anticipate this being done because of the substantial investment required. Mr. James Garris, 3108-D Honeywood Lane, advised that Roanoke Telecom, his small communications company, was recently denied advertising by Cox Cable. He believes that Cox Cable wants to keep its broadband internet sales as closely held as possible and will use the power of media to further their own interests. When a television cable provider takes away the ability for a company to advertise, they are hindered in selling equipment and broadband access. He asked for the ability to advertise freely to reach their target area. October 28, 2003 975 Supervisor Altizer moved to adopt the ordinance approving the revised cable television franchise. The motion carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None ORDINANCE 102803-12 PROVIDING FOR ONE OR MORE NON-EXCLUSIVE FRANCHISES TO CONSTRUCT, OPERATE AND MAINTAIN ONE OR MORE CABLE TELEVISION SYSTEMS WITHIN THE COUNTY OF ROANOKE, VIRGINIA WHEREAS, pursuant to applicable law, policies and procedures are established in this Ordinance whereby the County of Roanoke, Virginia ("County"), may grant certain entities, their successors and assigns, a non-exclusive franchise, or may renew or extend an existing franchise, to erect, operate and maintain poles, cables and all other electrical equipment, structures, or fixtures necessary to the construction, operation and maintenance of a Cable Television System under, over, upon and across the streets, alleys, sidewalks, and rights-of-way of the County to provide Cable Service to the residents and citizens of the County, and to the persons, firms, and corporations doing business therein, and to use the property of other entities in furtherance and support of the objectives of this Ordinance and any franchise granted hereunder upon such arrangements and under such conditions as to which the entities may agree. For the purposes of this Ordinance, the term "Franchise" shall apply, unless otherwise distinguished, to an initial franchise, an extended franchise or a renewed franchise; and WHEREAS, the provisions of this Ordinance shall apply to all cable television Franchises granted, extended or renewed after the effective date of this Ordinance, and shall also apply to all Cable Television Franchisees existing as of the effective date in the event and as of the date of any extension or renewal of an existing Franchise requested by such Franchisee. WHEREAS, the first reading of this revised cable television franchise ordinance was held on October 14, 2003, and the second reading and public hearing was held on October 28, 2003. THEREFORE, BE IT ORDAINED by the Board of Supervisors of the County of Roanoke, Virginia, as follows: TABLE OF CONTENTS Page Section 1. Short Title..................................................................................................................4 Section 2. Definitions..................................................................................................................4 Section 3. Grant of Authority.......................................................................................................9 Section 4. Applications for Grant, Renewal, Transfer, or Modification of Franchises............................................................................................................................11 (a) Written Application...................................................................................................11 (b) Application for Grant of a Franchise other than a Cable Act Renewal Franchise..................................................................................................11 (c) Application for Grant of a Renewal Franchise...........................................................14 (d) Contents of Applications..........................................................................................14 (e) Application for Modification of a Franchise...............................................................18 (f) Application for Consent to Transfer of a Franchise....................................................18 Section 5. Roanoke Valley Regional Cable Television Committee.............................................19 October 28, 2003 976 Section 6. Rates.......................................................................................................................22 Section 7. PEG Access.............................................................................................................23 Section 8. System Operation....................................................................................................23 Section 9. Indemnification and Insurance..................................................................................24 Section 10. Maintenance and Service Complaint Procedures....................................................26 Section 11. Filings with City......................................................................................................34 Section 12. Construction and Installation of the System............................................................35 Section 13. Emergency Alert System........................................................................................39 Section 14. Limits on Rights of Way..........................................................................................40 Section 15. Approval Required for Franchise Transfer..............................................................40 TABLE OF CONTENTS (continued) Section 16. County Right in Franchise......................................................................................41 Section 17. Franchise Fee........................................................................................................43 Section 18. Records and Reports.............................................................................................45 Section 19. Franchise Revocation.............................................................................................45 Section 20. Hearing Requirements for Matters Affecting Franchises..........................................48 Section 21. Costs.....................................................................................................................48 Section 22. Open Video System Operation...............................................................................49 Section 23. Severability............................................................................................................49 Section 24. Acceptance of Franchise........................................................................................50 Section 25. Franchisee to Abide by Applicable Laws.................................................................51 Section 26. Repeal of Prior Inconsistent Ordinances and Resolutions.......................................51 Section 27. Effective Date.........................................................................................................52 Appendix A. FCC Customer Service Standards CABLE TELEVISION FRANCHISE ORDINANCE Section 1. Short Title. This Ordinance shall be known and may be cited as the "CABLE TELEVISION FRANCHISE ORDINANCE." Section 2. Definitions. For the purpose of this Ordinance the following terms, phrases, words, and their derivations shall have the meanings given herein. Terms of art not otherwise defined herein, whether capitalized or not, shall have the meanings ascribed to them in Title VI (Cable Communications) of the Communications Act of 1934, as amended, 47 U.S.C. §§521, et seq. (hereinafter the "Cable Act"). When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory. (a) "Board" shall mean the Board of Supervisors of the County of Roanoke, Virginia. (b) "Cable," whether capitalized or not, shall mean the closed transmission paths by which video programming and other Cable Services are transmitted through and along a Franchisee's Cable System, and shall include coaxial cable, optical fiber and any other closed transmission path utilized therefor. October 28, 2003 977 (c) "Cable Service" shall have the same meaning as ascribed to the term "cable service" in the Cable Act. (d) "Cable Television System" (or "CATV", or "Cable System", sometimes hereinafter referred to as "System") shall have the same meaning as ascribed to the term "cable system" in the Cable Act. (e) "Chief Executive" shall mean the administrator of a county, manager of a city, or manager of a town, as the context may require. (f) "City" shall mean the City of Roanoke, Virginia. (g) "Council" shall mean the City Council of the City of Roanoke or the Town Council of the Town of Vinton, as the context may require. (h) "County" shall mean the County of Roanoke, Virginia. (i) “EG” shall mean the educational and governmental access component of PEG Access as defined in Section 2(w) hereof. (j) "Elementary and Secondary Schools", whether capitalized or not, shall mean all public institutions operated for the purposes of teaching students enrolled in the elementary (including kindergarten), middle and high school grades. 1. "FCC" shall mean the Federal Communications Commission or its successor. (l) "Franchise" shall mean the grant of authority, embodied in a franchise agreement between the County and a particular Franchisee, authorizing that Franchisee to construct, own, operate and maintain a cable system and provide cable service in the Service Area defined by that agreement. (m) "Franchise Area," for the purposes of establishing any entitlement to regulate rates charged by a Franchisee pursuant to the Cable Act, or any subsequently adopted counterpart thereof or governing regulatory provision relating thereto, shall mean and be deemed as being coterminous with a Franchisee's Service Area; provided, however, that until a Franchisee offers Cable Service throughout such Service Area, a Franchisee's Franchise Area shall be such lesser portion of its Service Area to which it offers Cable Service. (n) "Franchisee" shall mean the grantee of rights under a Franchise granted pursuant to this Ordinance. (o) "Governing Body" shall mean the Board or a Council, as the context may require. (p) "Gross Revenues" shall mean all revenues derived from the operation of a Franchisee's System to provide Cable Service within its Service Area. This definition shall be construed as broadly as permitted by the Cable Act or any other applicable law. By way of example and not limitation, and unless otherwise defined in a Franchise, “Gross Revenues” shall include charges for basic service, cable programming services, per-channel or per-event services, other charges for video programming, installation and reconnection fees, leased channel fees, converter rental fees, advertising and home shopping revenues, late fees, and revenues for carriage of programming on the System, to the extent such items are considered “revenue” under generally accepted accounting principles (“GAAP”). “Gross Revenues” shall not include (1) any tax or fee imposed on cable Subscribers (but not on Franchisee) by the County or any governmental authority and collected by the Franchisee on behalf of such governmental entity (provided, however, that the fee imposed by Section 17 of this Ordinance shall not be construed to be such a tax or fee); (2) the revenues of any parent or affiliate of Franchisee to the extent, and only to the extent, the revenues of such parent or affiliate are costs of the Franchisee and recovered by Franchisee through charges to Subscribers that are included in Gross Revenues on which franchise fees are paid; and (3) actual bad debt, refunds or credits, provided any such bad debt subsequently collected shall be considered “Gross Revenues” in the period collected. In the event any revenues derived by Franchisee or its parent or affiliates relate to the System in conjunction with other cable systems outside the Service Area owned or operated by Franchisee, its parent or its affiliate, then such revenues shall be fairly pro-rated among the various systems, and the portion of such revenues attributable to the Franchisee's System in the County based on such a pro-ration shall be considered “Gross Revenues”. October 28, 2003 978 (q) "Higher Education Center" or "Roanoke Higher Education Center" shall mean the Higher Education Center providing extension services and located in the City. (r) "Home" shall mean any single family dwelling unit, whether a house, apartment, trailer or mobile home, rented room or otherwise. (s) "Local Government" shall mean, as the context may require, the City, the County, or the Town, or all of them collectively. (t) "Local Government Occupied Buildings" shall mean those buildings owned in whole or in part by the County, the City, or the Town, as the context may require, or occupied in whole or in part by Local Government officials or other persons in furtherance of Local Government objectives, and shall include, without limiting the generality of the foregoing, all volunteer and paid fire and/or rescue companies located within the County, City or Town. (u) "Non-Subscriber Services" shall mean services provided to persons other than a Subscriber or User of the services provided by or carried on a Franchisee's Cable System. (v) "Person" shall mean any individual, firm, partnership, association, corporation, company, trust, or entity of any kind, but shall not include the County, the City, or the Town. (w) "PEG Access" shall mean public, educational and/or governmental use as provided in the Cable Act (47 U.S.C. §531). (x) "PEG Access Channels" shall refer to the channel capacity on a System devoted to PEG Access. (y) "Public Schools", whether capitalized or not, shall mean all buildings operated by the School Board or School Division of the County, City or Town for the purposes of teaching and learning. (z) "Residential Subscriber" shall mean a purchaser in good standing of any service that the Franchisee delivers to any Home, provided that service is not utilized in connection with a business, trade, or profession. (aa) "Roanoke Valley Regional Cable Television Committee" (or "CATV Committee" or "Committee") shall mean the committee comprised of individuals from the County, the City and the Town, having responsibilities as set forth in this Ordinance concerning any cable television system which provides service within or to any portion of all of the aforesaid three jurisdictions. (bb) "Senior Citizen" shall mean any Residential Subscriber who is sixty-five (65) years of age or older. (cc) "Service Area" shall mean the geographical area in the County, City or Town, as the context may require, in which a Franchisee is authorized by a Franchise to construct its System and to provide Cable Service . (dd) "Signals" shall mean and refer to all frequencies, and the modulating intelligence (including digital modulation) imposed or carried thereon, provided by or permitted to be inserted by a Franchisee on the Cable System operated by such Franchisee. (ee) "Streets" shall mean all public streets, roads, avenues, highways, boulevards, concourses, driveways, bridges, tunnels, parkways, alleys, and all other public rights-of-way within or belonging to the County, City or Town, as the context may require. (ff) "Subscriber" or "User" shall mean any person or entity lawfully receiving any service provided by or carried on a Franchisee's Cable System. (gg) "Town" shall mean the Town of Vinton, Virginia. (hh) "VDOT" shall mean the Virginia Department of Transportation. Section 3. Grant of Authority. (a) The County shall have the authority, subject to compliance with the relevant provisions of §15.2-2108 of the Code of Virginia and the Cable Act, to grant to such applicant, who shall thereafter be a Franchisee hereunder, a nonexclusive initial, extended or renewed Franchise upon such terms as the County and such applicant may agree. The Franchise shall authorize such Franchisee, within its Service Area, to construct, erect, operate and maintain, in, upon, along, across, above, over and under the Streets of the County, poles, wires, cable, underground conduits, manholes, and such other conductors October 28, 2003 979 and fixtures for the maintenance and operation of a Cable Television System to provide Cable Service, subject to such applicant's agreement and obligation to provide Cable Service within the Franchisee's Service Area and to otherwise comply with all provisions of this Ordinance and the terms of any agreement relating to the initial grant, extension or renewal of the Franchise. Any Franchise granted hereunder shall authorize the Franchisee to use the Streets to construct, erect, operate, and maintain a Cable System to provide Cable Service and for no other purpose. (b) No Franchisee shall, as to rates, charges, service, facilities, rules, regulations or in any other respect, make or grant any preference or advantage to any person, nor subject any person to any prejudice or disadvantage; provided that nothing in any Franchise granted hereunder shall be deemed to prohibit the establishment of a graduated scale of charges (i) to "Senior Citizen" Subscribers, (ii) for multiple installations at the same Home or building, or (iii) to prohibit Franchisee's provision of free or discounted service to its own employees or to governmental or school facilities. (c) Any Franchise granted hereunder as an initial authorization and any renewal or extension thereof shall be governed by the provisions of the Cable Act, any amendments or superseding legislation and other applicable law, and shall be for a term as defined in the franchise agreement between the County and the Franchisee, such term not to exceed fifteen (15) years. (d) No person shall construct, install, maintain or operate a Cable System within, along, over or under any Street or otherwise use the County's Streets to provide Cable Service unless pursuant to (i) a Franchise existing as of the date of adoption of this Ordinance, or (ii) a Franchise granted by the County pursuant to the provisions of this Ordinance. Section 4. Applications for Grant, Renewal, Transfer, or Modification of Franchises. (a) Written Application. (1) A written application shall be filed with the County for (A) grant of an initial Franchise; (B) renewal of a Franchise; (C) modification of a franchise agreement pursuant to this Ordinance or the Cable Act; and (D) consent to a transfer of a Franchise. An applicant shall demonstrate in its application compliance with all requirements of this Ordinance and all applicable laws. (2) To be acceptable for filing, a signed original of the application shall be submitted together with five (5) copies. The application must be accompanied by any required application filing fee, conform to any applicable request for proposals or invitation for bid, and contain all required information. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application. (3) An applicant for an initial or a renewal Franchise or transfer of a Franchise hereunder shall include in its application all information requested by the County or its designated representative, subject to the provisions of governing law or regulations, as the County deems reasonably appropriate to allow it to evaluate such applicant's application. (4) All applications accepted for filing shall be made available by the County for public inspection. (b) Application for Grant of a Franchise other than a Cable Act Renewal Franchise. (1) An application for the grant of a new Franchise may be filed pursuant to a request for proposals ("RFP") or invitation for bid ("IFB") issued by the County or on an unsolicited basis. The County, upon receipt of an unsolicited application, may issue an RFP or IFB. If the County elects to issue an RFP or IFB upon receipt of an unsolicited application, the applicant may submit an amended application in response to the RFP or IFB, or may inform the County that its unsolicited application should be considered in response to the RFP or IFB, or may withdraw its unsolicited application. An application which does not conform to the requirements of an RFP or IFB may be considered non-responsive and denied on that basis. The applicant shall respond within the time directed by the County, providing the information and material set forth in subsection 4(d). The procedures, instructions, and requirements set forth in the RFP or IFB shall be followed by each applicant as if set forth and required herein. The County or its designee may seek additional information from any applicant and establish deadlines for the submission of such information. October 28, 2003 980 (2) In evaluating an application for a Franchise, the County may consider, among other things, the following factors: (A) The extent to which the applicant has substantially complied with applicable law and the material terms of any existing cable Franchise in the County, City or Town. (B) Whether the quality of the applicant’s service under any existing Franchise in the County, City, or Town, including signal quality, responsiveness to customer complaints, billing practices, and the like, has been reasonable in light of the needs and interests of the communities served. (C) Whether the applicant has the financial, technical, and legal qualifications to build, operate and maintain the System and provide the Cable Service it proposes. (D) Whether the application satisfies any minimum requirements established by the County and is otherwise reasonable to meet the future cable-related needs and interests of the community, taking into account the cost of meeting such needs and interests. (E) Whether the applicant proposes to provide adequate PEG Access channel capacity, facilities, or financial support. (F) Whether issuance of a Franchise is warranted in the public interest considering the immediate and future effect on the Streets and private and public property that would be used by the Cable System, including the extent to which installation or maintenance as planned would require replacement of Streets or property or involve disruption of property, public services, or use of the Streets and the comparative superiority or inferiority of competing applications. (G) Whether the applicant or an affiliate of the applicant owns or controls any other Cable System in the County, or whether the granting of the application may eliminate or reduce competition in the delivery of Cable Service in the County. (3) If the County finds that it is in the public interest to issue a Franchise considering the factors set forth above, and subject to the applicant’s entry into an appropriate franchise agreement with County, it shall grant a Franchise to the applicant. If the County denies a Franchise, it will issue a written decision explaining why the Franchise was denied. Prior to deciding whether or not to issue a Franchise, the County may hold one or more public hearings or implement other procedures under which comments from the public on an application may be received. The County also may grant or deny a request for a Franchise based on its review of an application without further proceedings and may reject any application that is incomplete or fails to respond to an RFP or IFB. The County also reserves the right to reject all responses to an RFP or IFB. This Ordinance is not intended and shall not be interpreted to grant any applicant or existing Franchisee standing to challenge the issuance of a franchise to another. (c) Application for Grant of a Renewal Franchise. The Cable Act (47 U.S.C. §546) shall apply to applications for renewal of an existing Franchise. If neither a Franchisee nor the County initiates the renewal process of the Cable Act in a timely manner, or is unable to initiate the renewal process set forth in 47 U.S.C. § 546(a)-(g) (including, for example, if the provisions are repealed), and except as to applications submitted pursuant to 47 U.S.C. § 546(h), the provisions of subsection (b) of this Section shall apply, and a renewal request shall be evaluated using the same criteria as any other request for a Franchise. (d) Contents of Applications. Unless otherwise specified by the County, an RFP or IFB for the grant of a Franchise, including for a renewal franchise under 47 U.S.C. § 546(c), shall require, and any application submitted (other than an application submitted pursuant to 47 U.S.C. § 546(h)) shall contain, at a minimum, the following information: (1) Name and address of the applicant and identification of the ownership and control of the applicant, including: the names and addresses of the ten (10) largest holders of an ownership interest in the applicant and affiliates of the applicant, and all persons with five (5) percent or more ownership interest in the applicant and its affiliates; the persons who control the applicant and its October 28, 2003 981 affiliates; all officers and directors of the applicant and its affiliates; and any other business affiliation and cable system ownership interest of each named person. (2) A demonstration of the applicant’s technical ability to construct and/or operate the proposed cable system, including identification of key personnel. (3) A demonstration of the applicant’s legal qualifications to construct and/or operate the proposed cable system, including but not limited to a demonstration that the applicant meets the following criteria: (A) That the applicant has not submitted an application for an initial or renewal Franchise to the County, which was denied, or as to which any challenges to such franchising decision were finally resolved adversely to the applicant, within three (3) years preceding the submission of the application. (B) That the applicant has not had any cable television franchise validly revoked by any franchising authority within three (3) years preceding the submission of the application. (C) That the applicant has the necessary authority under Virginia law to operate a cable system. (D) That the applicant holds or is qualified to obtain, any necessary federal licenses or waivers required to operate the System proposed in the application, and that the applicant is otherwise qualified to own and operate the System under federal law. (E) That the applicant, or any of its officers, directors, partners, or shareholders holding greater than a ten (10) percent interest have not, during the ten (10) years preceding the submission of the application, been convicted of any act or omission of such character that the applicant cannot reasonably be relied upon to deal truthfully with the County or Subscribers or to substantially comply with obligations under applicable law, including obligations under consumer protection laws and laws prohibiting anticompetitive acts, fraud, racketeering, or other similar conduct. (F) That the applicant certifies that the information contained on its application is truthful and complete. (G) That no elected official of the County holds a controlling interest in the applicant or in any affiliate of the applicant. (4) Notwithstanding the foregoing, the County shall provide an opportunity to an applicant to show that it would be inappropriate to deny it a Franchise under subsection (d)(3)(B) or (E) above by virtue of the particular circumstances surrounding the matter in question, and to demonstrate the steps taken by the applicant to cure the harms flowing therefrom and prevent their recurrence, the lack of involvement of the applicant’s principals, or the remoteness of the matter from the operation of cable television systems. (5) A statement prepared by a certified public accountant regarding the applicant’s financial ability to complete the construction and operation of the Cable System proposed in the application. (6) A description of the applicant’s prior experience in owning or operating Cable Systems, and the identification of communities in which the applicant or any of its principals have, or have had, a cable franchise or franchise or any material interest therein; provided, however that an applicant that holds an existing Franchise with the County and is seeking renewal of that Franchise need not provide such information. (7) Identification of the area of the County to be served by the proposed Cable System, including a description of the proposed Service Area’s boundaries. (8) A description of the physical facilities proposed, including channel capacity, technical design, performance characteristics, headend location, and PEG Access facilities. (9) Where applicable, a description of the construction of the proposed System, including an estimate of plant mileage and its location, the proposed construction schedule, and general information on the availability of space in existing conduits and poles to accommodate the proposed System. October 28, 2003 982 (10) A demonstration of how the applicant will reasonably meet the future cable- related needs and interests of the community, including descriptions of how the applicant will meet the needs described in any recent community needs assessment conducted by or for the County, and how the applicant will provide adequate PEG Access channel capacity, facilities, or financial support to meet the community’s needs and interests, and how such capacity, facilities, and financial support will be funded. (11) Any other information as may be lawful and reasonably necessary to demonstrate an applicant’s ability to comply with the requirements of this Ordinance. (12) Information that the County may lawfully request of the applicant that is relevant to the County’s consideration of the application. (13) An affidavit or declaration of the applicant or authorized officer certifying the truth and accuracy of the information in the application, acknowledging the enforceability of application commitments to the extent they are incorporated into a Franchise, and certifying that the applicant meets all federal and state law requirements to construct, erect, operate, and maintain a Cable System. (e) Application for Modification of a Franchise. An application for modification of a Franchise shall include, at minimum, the following information: (1) The specific modification of the Franchise requested; (2) The justification for the requested modification, including the impact, if any, of the requested modification on Subscribers and others, and the financial impact on the applicant if the modification is approved or disapproved, demonstrated through, among other things, submission of financial pro formas; (3) A statement whether the modification is sought pursuant to the Cable Act, (47 U.S.C. § 545), and, if so, a demonstration that the requested modification meets the standards set forth in the Act; (4) Any other information that the applicant believes is necessary for the County to make an informed determination on the application for modification; and (5) An affidavit or declaration of the applicant or authorized officer certifying the truth and accuracy of the information in the application. (f) Application for Consent to Transfer of a Franchise. (1) An application for the County's consent to the transfer of a Franchise or the transfer of control of a Franchisee shall include, at a minimum, the following information: (A) A completed FCC Form 394, or any successor form; and (B) With respect to the proposed transferee, the information set forth in the following subsections of Section 4(d) of this section, “Contents of Applications”: (1), (2), (3), (6), (11), (12), and (13), and where any changes in such information are contemplated, the information set forth in subsections 4(d) (7), (8), (9), and (10). (2) In determining whether a transfer application should be granted, denied, or granted subject to conditions, the County may consider the legal, financial, and technical qualifications of the transferee to operate the Cable System; any potential impact of the transfer on Subscriber rates or services; whether the incumbent Franchisee is in substantial compliance with its Franchise and, if not, whether the incumbent or the transferee furnishes adequate cure or assurance of cure; whether the transferee owns or controls any other Cable System in the County; and whether transfer of the System or control of the Franchisee to the transferee or approval of the transfer would otherwise adversely affect Subscribers, the public, or the County's interests under this Ordinance, the Franchise, or other applicable law. No transfer application shall be granted unless the transferee agrees in writing that it will abide by and accept all terms of this Ordinance and the Franchise, and that it will assume the obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous Franchisee for all purposes. Section 5. Roanoke Valley Regional Cable Television Committee. October 28, 2003 983 As of the date of adoption of this Ordinance, the County, the City and the Town have, pursuant to ordinances duly adopted by each of them, jointly established a committee known as the Roanoke Valley Regional Cable Television Committee (the "CATV Committee"). By adoption of this Ordinance, the County does hereby affirm its continued participation in and support of the CATV Committee, which shall comprise eleven (11) members and have the duties and responsibilities as set forth below: (a) Members. One member shall be provided from each of the Governing Bodies of the County, the City and the Town; three members shall be the Chief Executives (or their designees) from each of the County, the City and the Town; one member shall be appointed by each of the Roanoke County and Roanoke City School Boards; and one member-at-large shall be appointed by each of the Governing Bodies of the County, the City and the Town. (b) Chairperson. The CATV Committee shall select a chairperson from its membership, who shall serve for a period of one year or such other term as the CATV Committee may deem appropriate. (c) Terms of Office. The terms of office of the three at-large members shall be for three years each, provided that such terms shall be staggered, with a continuation of the staggered sequence established by the CATV Committee prior to the adoption of this Ordinance; members from the Governing Bodies of each of the jurisdictions and those appointed by their respective School Boards shall serve for such terms as are determined by their respective appointing authorities. (d) Meetings. Meetings of the CATV Committee shall be held not less than once per year and at such more frequent times as the Chairperson or the Committee shall determine; a quorum shall consist of five members. The Committee may adopt such procedures and bylaws as it deems necessary for the proper exercise of its responsibilities. (e) Scope. The CATV Committee shall fulfill its responsibilities with respect to any Franchisee or applicant for a Franchise as to which the Cable Service provided or proposed shall extend within or to any portion of all of the three jurisdictions addressed herein. (f) Franchisee Attendance. The General Manager (or his or her designee) of each Franchisee within the scope of the CATV Committee's responsibilities shall be afforded the opportunity to attend each meeting of the CATV Committee, with at least ten (10) days advance notice to be provided whenever reasonably possible, except when the CATV Committee holds a closed meeting. (g) Powers and Duties. The CATV Committee shall: (i) Advise the affected Governing Bodies concerning any applications for Franchises. (ii) Provide for the development, administration, and operation of EG access facilities and programming for the County, City and Town as provided for in this Ordinance and any franchise agreements. The administration of all such EG activities shall be undertaken by the Committee. (iii) Monitor each Franchisee's compliance with the provisions of this Ordinance and any Franchise granted hereunder, and advise affected Governing Bodies of matters that may constitute grounds for a monetary forfeiture or Franchise revocation. (iv) Advise the affected Governing Bodies concerning the regulations of Cable rates. (v) Receive, record and consider Subscriber complaints that have not been resolved by a Franchisee; attempt to resolve and respond to all such complaints, maintaining a record of all resolutions; and report annually to each Governing Body the results of its actions with respect to such complaints. (vi) Review any proposed transfer of a Franchise and recommend whether such transfer should be approved. (vii) Coordinate review of each Franchisee's records as may be required by this Ordinance. (viii) Encourage the use of such EG access channels and facilities as are required under this Ordinance or any Franchise by the widest range of institutions, groups and individuals within the Service Areas of the respective Franchisees, consistent with applicable law. October 28, 2003 984 (ix) Review budgets prepared by departments within affected jurisdictions for EG channel usage, and coordinate the expenditure of any capital grant funds provided by any Franchisee to maximize the potential and provide for the full development of EG channel usage. (x) Advise the Governing Bodies of the jurisdictions addressed herein as to proposed rules and procedures under which a Franchisee may use unused EG channel capacity for the provision of other services, and under which such Franchisee use shall cease. (xi) Coordinate programming and activities on EG channels, develop appropriate policies and procedures therefor, and assist in preparation and review of budgets for all cablecasting activities on EG channels. (xii) Maintain records in accordance with statutory requirements. Section 6. Rates. The County specifically retains all rights to regulate rates for Cable Service charged by any Franchisee, subject to the provisions of relevant federal and state laws and the rules and regulations of administrative agencies with authority. Section 7. PEG Access. PEG Access channel capacity, facilities and support requirements shall be specified in the Franchise between the County and the Franchisee, and shall be sufficient to satisfy the County's cable-related community needs and interests. Section 8. System Operation. (a) Every Franchisee shall operate its Cable System as required by the FCC's rules and regulations, including, without limitation, ensuring compliance with all applicable provisions of 47 C.F.R. §76.601, et seq. (FCC Technical Standards), and any amendments thereto, throughout the entire Service Area. Upon request, every Franchisee shall submit to the County copies of all performance test data required pursuant to 47 C.F.R. §76.601 and any other performance tests that may be required by subsequent amendment of the FCC's rules and regulations. (b) Unless otherwise provided for in a Franchise, within six months after receipt of written request from the County, a Franchisee shall interconnect its System with the Cable System of any overlapping or adjacent cable operator in the County, City or Town. Such interconnection, including bidirectional capability, shall be performed on terms mutually and reasonably acceptable to the Franchisee and the other operator, including arrangements to share equitably the cost of design, installation, and all necessary equipment, hardware, and accessories to accomplish the interconnection. Section 9. Indemnification and Insurance. (a) Every Franchisee, as a condition to its entitlement to hold or continue to hold a Franchise hereunder, shall save the County, the CATV Committee, and their officers, representatives, employees, agents and volunteers harmless from all loss or damages of any kind, including reasonable attorney's fees, sustained by the County, the CATV Committee, and their officers, representatives, employees, agents and volunteers on account of any suit, judgment, execution, claim, or demand whatsoever, resulting from any acts or omissions on the part of the Franchisee, its contractors, subcontractors or agents in the construction, maintenance or operation of its Cable Television System or the provision of Cable Service in the County; provided, however, that the County shall give to an indemnifying Franchisee written notice of any such suit, judgment, execution, claim or demand made to which the immediately foregoing indemnification provisions apply. (b) Each Franchisee shall take out and maintain throughout the term of its Franchise commercial general liability insurance against personal injury with coverage of not less than $5,000,000 for injury to any person and $5,000,000 for any one accident, and insurance against property damage, including damage to County property, in an amount not less than $5,000,000, and shall maintain comprehensive automobile liability insurance, including non-owned and hired car as well as owned vehicles coverage, with minimum bodily injury coverage for each occurrence of $2,000,000 and property damage coverage of not less than $1,000,000 per occurrence. X, C, and U general liability insurance exclusions must be deleted. The above limits may be satisfied by a combination of primary and umbrella October 28, 2003 985 insurance following the form of the primary insurance. The above policies shall be written by a company licensed to do business in the Commonwealth of Virginia, which shall be rated not less than "A" by Best's rating service, and the County, the CATV Committee, and their officers, representatives, employees, agents and volunteers shall be named as additional insureds thereunder, and an endorsement to that effect from the insurer must be received by the County within thirty (30) days of commencement of a Franchise. A certificate of these policies shall be furnished to the County as a condition to the grant of any Franchise hereunder. The County reserves the right, no more frequently than once every three years, and upon six months advance notice to a Franchisee, to require an increase in the immediately foregoing minimum basic coverages by an amount not to exceed the amount necessary to compensate for the County's increased general liability insurance coverage, or the County's increased self-insured exposure, for the three years immediately preceding the date of such notice from the County. (c) Every Franchisee shall obtain workers' compensation insurance as required by the laws of the Commonwealth of Virginia, with such insurance to be written by a company licensed to do business in the Commonwealth of Virginia, which company shall be rated not less than "A" by Best's rating service. Such policy shall contain a waiver of subrogation in favor of the County, the CATV Committee, and their officers, representatives, employees, agents and volunteers. (d) Each Franchisee shall ensure that its contractors, subcontractors and agents maintain commercial general liability insurance coverage sufficient to protect the County, the CATV Committee, and their officers, representatives, employees, agents and volunteers from any loss arising from work performed on such Franchisee's behalf. (e) No insurance policy shall be cancelable or non-renewable until thirty (30) days after receipt by the County of notice of intention to cancel or non-renew. Section 10. Maintenance and Service Complaint Procedures. (a) System Maintenance. Throughout the term of its Franchise, every Franchisee shall maintain all parts of its Cable System in good working condition. (b) FCC Standards. Each Franchisee shall, at minimum, comply with the customer service standards established by the FCC at 47 C.F.R. §76.309(c), or any subsequently adopted amendments thereto. These rules are hereby adopted as if incorporated herein (see Appendix A). No Franchisee shall adopt standards less stringent than those imposed by the FCC, and nothing herein shall prevent a Franchisee, or the County, from adopting standards that are more stringent than those imposed by the FCC. The County may, at its sole discretion, and upon ninety (90) days written notice to a Franchisee, inform a Franchisee of its intent to enforce, and may enforce against such Franchisee, the additional customer service standards contained in subsections (b)(1) through (9) below, or any other customer service standard deemed reasonably necessary by the County at its sole discretion. (1) Installation Time. Within all areas served by the System, and meeting the density requirements of Section 12(c), service to all requesting potential Subscribers requiring an aerial installation shall be provided within five (5) business days after receipt of the request for service, and service to requesting potential Subscribers requiring an underground installation shall be provided within ten (10) business days after such request, unless Franchisee is prevented by reasons beyond its control or later installation is requested by the Subscriber. (2) Repair Procedure. Franchisee shall have a local listed telephone number for receipt of requests for repairs at any time, twenty four (24) hours per day, seven (7) days per week. Franchisee responses to such requests shall occur within twenty four (24) hours after Franchisee’s receipt of such a request, oral or written, excluding Sundays and holidays. Verification of the problem and Franchisee’s best efforts to resolve the problem shall occur within forty eight (48) hours. In any event, resolution should occur within five (5) business days. Those matters requiring additional maintenance, repair, or technical adjustments that require more than five (5) business days to complete shall be reported in writing to the Subscriber and, if requested, to the County. The County may require October 28, 2003 986 reasonable documentation to be provided by Franchisee to substantiate a request for additional time to resolve any such complaint. (3) Responsiveness. Franchisee shall respond seven (7) days a week within two hours to any outage affecting five (5) or more subscribers due to the same event or occurrence (“Area Outage”) which occurs between the hours of 7:00 a.m. and 9:00 p.m., and by not later than 11:00 am the following day to any Area Outage which occurs between 9:00 p.m., and 7:00 a.m., the following day. Such response shall mean actual commencement of trouble shooting and repairs, plus contact with the complaining Subscriber(s), if reasonably possible under the circumstances. (4) Mean time between failures. The average time between Area Outages shall not exceed twenty four (24) hours in any twelve (12) month period. It shall be computed by dividing the operating time by the number of Area Outages. (5) Mean time to repair. The average time to complete repair to System outages shall not exceed two (2) hours in any twelve (12) month period. It shall be computed by dividing the total time for repairs by the number of repair orders. (6) Subscriber Down Time. Annual subscriber down time shall not exceed an average of four (4) hours per Subscriber. (7) Mean Time to Install. Mean time to install shall be eight (8) business days for underground installations and four (4) business days for aerial installations. (8) Service Call (Repairs). Seventy percent (70%) of all repair requests shall be acted upon within twenty four (24) hours; ninety percent (90%) within ninety six (96) hours. All requests shall be resolved within five (5) business days unless good and sufficient cause exists. Any service call not resolved within five (5) business days shall be reported in writing to the CATV Committee by Franchisee within two (2) business days thereafter. (9) Telephone Waiting Time. During normal business hours, ninety percent (90%) of all telephone calls shall be picked up on or before the fourth ring and no caller shall be allowed to wait for more than ten (10) rings. Waiting time shall not exceed an average of thirty (30) seconds total for any caller, and no caller shall be transferred except for specialized services. (c) Complaint Policy and Records. (1) Complaint Policy. Franchisee shall promulgate written policy statements and procedures for reporting and resolving Subscriber complaints. Franchisee shall furnish a copy of the policy to each new Subscriber upon installation and thereafter to all Subscribers at least annually, and to the County and all Subscribers at such time as there is any change in such policy. (2) Complaint Records. Franchisee shall maintain records showing the date of receipt of all written complaints received (including those received via electronic mail) and identifying the Subscriber, the nature of the complaint, and the date action was taken by Franchisee in response thereto, together with a description of such action. Such records shall be kept available at Franchisee’s local office for at least two (2) years from date of receipt, for inspection by the County as it may at any time and from time to time reasonably request, during business hours and upon reasonable notice. A periodic log of all complaints and resolutions, by category, shall be provided to the County and the CATV Committee or its designee upon request. Complaints that remain unresolved for a period of ten (10) working days or more shall be reduced to writing by the Franchisee and submitted to the County or its designee for appropriate action. (3) Complaint Notice. Franchisee shall provide written notice detailing all actions taken to resolve complaints submitted to the County within five (5) business days from written or telephone notification by the County of the complaint. Franchisee shall provide service-call and outage reports to the County or the CATV Committee upon request. (d) Free Basic Service. Franchisee shall provide basic tier service and the most widely subscribed-to tier of cable programming service without charge to each Local Government Occupied Building, fire station, police station, any other County-owned or County-occupied buildings (excluding October 28, 2003 987 housing units and buildings owned by the County but not used for governmental or educational purposes), all Elementary and Secondary Schools, public library, state-accredited private schools with at least fifty (50) students, and public, private or community college academic buildings within its Service Area, as requested by County. One standard drop into such building(s) and into a room or office designated by the recipient, one converter (if needed) per building, and continued delivery of the required service throughout the term of the Franchise shall constitute compliance. Any attached identified structures shall be treated as separate buildings. This subsection shall apply to any building meeting the classifications listed, regardless whether such building existed as of the effective date of this Ordinance or was constructed or occupied after the effective date hereof. The Service recipient shall be responsible for securing Franchisee’s right of access to the building(s) at no cost to the Franchisee. (e) Emergency Communications. At least one person in responsible charge of Franchisee's operations in the Service Area shall be available by local telephone during such hours as Franchisee's business office is closed, and the telephone number of such person shall be supplied in advance to the County's chief executive official, the presiding officer of the Board, the County's Police and Fire Departments, and the Emergency 911 Center. (f) Subscriber Antennas. Notwithstanding any disconnection of Subscribers' existing antennas and downleads to receivers connected to the Cable System, the Cable System shall be designed so that physical removal of antennas and downleads will not be required to receive Service, and so that the Subscriber may utilize such antennas at any time in place of the Cable System service. (g) Parental Guidance Control. Consistent with the Cable Act (47 U.S.C. §544(d)(2)(A)), Franchisee shall make available to any Subscriber so requesting, at reasonable cost, a "parental guidance control" or "lockout key" which will permit the Subscriber to eliminate intelligible audio and video reception of any or all of the premium service channels. Franchisee shall notify all Subscribers of the availability of such parental-control devices. (h) Call Recording Service for Current Known Outages. Franchisee shall provide a telephone number which provides a recorded message of access to an employee or agent or Franchisee, on a twenty four (24) hour basis. The recorded message shall describe current known System deficiencies and outages and thereafter accept recorded messages from Subscribers, who may leave their names; request service; report outages; and request credit for down time. (i) Preventative Maintenance. Franchisee shall establish and adhere to a preventive maintenance policy directed toward maximizing the reliability and maintainability of the Cable System with respect to its delivery of Cable Service to Subscribers at or above the technical standards established by the FCC. When it is necessary to interrupt Cable Service for the purpose of making repairs, adjustments, installations or other maintenance activities, Franchisee shall do so at such times as will cause the least inconvenience to its Subscribers, generally between the hours of 11:30 p.m. and 6:30 a.m. the next morning. (j) Repair Capability. Franchisee shall maintain sufficient qualified technicians, service vehicles, and test and repair equipment to provide repair service within the parameters set forth below. (k) Notice. Except in an emergency, or when System maintenance or repair occurs between the hours of 11:30 p.m. and 6:30 a.m., Franchisee shall give Subscribers at least twenty-four (24) hours' notice of any interruption of Cable Service for purposes of maintenance or repair. In an emergency, Franchisee shall give such notice as is reasonable in the circumstances. Notice given on the Alphanumeric Channels shall be considered sufficient. When Subscriber channels will be interrupted, normal scheduled service and repair shall be performed between the hours of 11:30 p.m. and 6:30 a.m. the next morning. (l) Refund for Outage. For any continuous service interruption or loss of service in excess of twenty- four (24) hours, Franchisee shall make a pro-rated refund of such Subscriber's regular monthly charge for the service to each Subscriber so affected, upon request of such Subscriber. The twenty-four (24) hour period shall commence when Franchisee learns of such outage whether through Subscriber notification or notification by Franchisee's maintenance personnel. Such refunds shall be prorated by multiplying the October 28, 2003 988 applicable monthly service rate by a fraction whose numerator equals the number of days of the outage and whose denominator equals the number of days in the month of the outage. For purposes of this paragraph, an outage shall be defined as a Subscriber's receipt of less than two thirds (2/3) of the authorized basic service and most widely subscribed to tier of cable programming service channels, or loss of any premium channel. Franchisee shall not be required to grant a refund in the event that an outage is caused by any Subscriber. (m) Billing Practices. Franchisee shall maintain written billing practices and policies and shall furnish a copy thereof to the County, the CATV Committee, and all Subscribers, and to each new Subscriber. The County and all Subscribers shall be notified in writing thirty (30) days in advance of any changes. Franchisee shall comply with all relevant state and federal laws and regulations with respect to its billing practices. (n) Pro-rated Service. In the event a Subscriber's service is terminated for any reason, monthly charges for service shall be pro-rated on a daily basis. Where advance payment has been made by a Subscriber, the appropriate refund shall be made by Franchisee to theSubscriber within thirty (30) days of such termination, unless the amount is less than $5.00, which amount shall be refunded only upon the Subscriber’s request. (o) Disconnection for Non-Payment. Franchisee shall have the right to disconnect a Subscriber for failure to pay an overdue account provided that: (1) Franchisee's billing practices and policy statements have set forth in writing the conditions under which an account will be considered overdue; and (2) Franchisee provides written notice of its intent to disconnect at least fifteen (15) days prior to the proposed disconnection; and (3) The Subscriber's account is at least thirty (30) days delinquent computed from the first day of service for which payment has not been made. (p) Installation of Equipment. Unless otherwise provided by law, Franchisee shall not install its System on private property without first securing written permission of the owner or tenant in possession of such property or the written permission of the holder of any easement for utility lines or similar purposes, and in accordance with law. Upon request, Franchisee shall inform owners and tenants of the functions of all equipment installed on private property. (q) Monitoring and Privacy. Unless otherwise provided by law, neither Franchisee nor any of its offices, employees, agents or contractors shall, without prior written consent of all affected parties, tap, monitor or arrange for the tapping or monitoring of any drop, outlet or receiver for any purpose whatsoever other than legitimate technical performance testing of the Cable System or the monitoring of subscriber cable service, or where such tapping or monitoring is required by law. Franchisee shall comply with relevant federal and state statutes regarding the monitoring of Service and providing Subscriber information to government entities. Franchisee shall at all times comply with the Cable Act (47 U.S.C. §551) with regard to the protection of Subscriber privacy. (r) Subscriber Lists or Information. Unless otherwise provided by law, Franchisee shall not sell, disclose, or otherwise make available, or permit the use of, lists of the names or addresses of its Subscribers, or any list or other information which identifies individual Subscriber viewing habits, to any person or entity for any purpose whatsoever without the consent of such Subscriber, all in accordance with and subject to the provisions of the Cable Act and applicable law. This provision shall not prevent Franchisee from performing such acts as may be necessary for the purpose of service related activities, including surveys. Section 11. Filings with County. (a) In addition to other filings that may be set forth herein, every Franchisee shall maintain, and file with the County Administrator upon request, true and accurate strand maps (in either electronic or, if the Franchisee and County otherwise agree, in hard copy) of all existing and proposed installations in the Streets. The County hereby reserves the right to reject any proposed installation that does not conform to its ordinances, regulations or practices concerning construction in the Streets. The County October 28, 2003 989 may order and direct the Franchisee, at Franchisee’s sole cost, to move the location or alter the construction of any existing installation to facilitate or accommodate the installation, alteration, repair or changing of the grade or location of a street, or the construction, alteration, repair or installation of any other public works or the construction of public improvements in, on, or under the Streets. Every Franchisee shall also maintain and, upon request, make available at its local office, for review and copying by the County, true and accurate “as built” maps of all existing installations. (b) Every Franchisee shall file annually with the County Administrator a statement setting forth the names and addresses of all its directors and officers and the position that each holds, which statement may consist of the Franchisee's annual report. (c) Upon request, a Franchisee shall file with the County Administrator copies of rules, regulations, terms and conditions adopted by the Franchisee for the conduct of its business. Section 12. Construction and Installation of the System. (a) The County shall have the right to inspect all construction or installation work performed by a Franchisee within the Service Area, and to make such inspections as the County deems necessary to ensure compliance with the terms of this Ordinance, other pertinent provisions of law and any Franchise granted hereunder. No poles, underground conduits, or other wire or cable-holding structures shall be erected by a Franchisee without prior approval of the County or its duly authorized personnel, or, unless such consent is not required by applicable law, by abutting property owners where the County does not own, or hold some other right of way property interests in, the area in which such structures are to be erected. To the extent possible, a Franchisee shall use existing poles and underground conduits throughout the County. Any poles, underground conduits or other fixtures that a Franchisee is authorized by the County to install must be placed in a manner so that they do not interfere with or obstruct the usual travel on the public Streets or interfere with any existing utility services. At the time any trench is opened for installation or maintenance of conduit or underground cable, a Franchisee shall give the County at least ten (10) days advance written notice of such work and inform the County of the incremental cost of installing one additional conduit for the exclusive use of the County of such dimension as specified by the County, and unless the County otherwise directs Franchisee in writing, Franchise shall install such conduit at a charge no greater than the actual incremental cost of labor and materials for such additional conduit. All construction activities of a Franchisee shall be conducted in a workmanlike manner that will cause minimum interference with the rights and reasonable convenience of the public's and other utilities' use of the Streets and of the property owners directly affected thereby. Every Franchisee shall maintain all structures, cable and related Cable System equipment that are located in, over, under, and upon the Streets in a safe, suitable, substantial condition and in good order and repair at all times. (b) All construction, installation and repair by a Franchisee shall be effectuated in a manner that is consistent with the FCC's rules, relevant local building codes, zoning ordinances and laws, all County and other governmental laws, codes or ordinances relating to public works or the Streets, and other regulatory requirements, the National Electrical Safety Code, and other standards of general applicability to Cable Systems. No Franchisee shall commence any construction without obtaining all local zoning and other approvals, permits and other licenses generally applicable to other entities performing such construction, and paying all costs and fees normally imposed or charged therefor. (c) A Franchisee shall be required to extend energized trunk cable and make Cable Service available to any and all portions of the County within the limits of its defined Service Area with a density of at least twenty (20) Homes per linear mile for aerial installations and thirty (30) Homes per linear mile for underground installations. For purposes of calculating this density requirement, all Homes within one hundred fifty (150) feet of any Street or other right-of-way suitable for cable trunk installation shall be counted in density determinations, and shall be considered as satisfying the 20 or 30 Homes- per-mile density requirement, as appropriate. In the event that the owner of any Home or other structure within a Franchisee's Service Area not meeting the density requirement is willing to agree in writing to pay the excess cost of extending Cable Service to that location, then a Franchisee so requested by such owner shall provide Cable Service to such Home or other structure, provided that such owner's payment October 28, 2003 990 obligation shall only apply to the actual costs incurred, without markup, in extending cable more than 150 feet from any trunk line. (d) In case of any disturbance of pavement, sidewalk, driveway or other surface, a Franchisee shall, at its sole cost and expense and in a manner approved by the County or as required by any applicable County policy or standards generally applicable to similar construction in the Streets, replace and restore all paving, sidewalk, driveway or surface disturbed in as good condition as before such work was commenced. (e) In the event that at any time during the period of a Franchise, the County or VDOT shall elect to alter or change the grade, width, or other characteristic of any Street, alley or other public way, the affected Franchisee, upon reasonable notice by the County or VDOT, at Franchisee's sole cost, shall remove, relay, and relocate its poles, wires, cables, underground conduits, manholes and other fixtures or equipment as directed by the County or VDOT. (f) No Franchisee shall place any poles or other fixtures where the same will interfere with any gas, electric or telephone fixture, water hydrant, main, or sewer, and all such poles or other fixtures placed in any Street shall be placed in accordance with the County’s requirements or as established by any applicable County policy or standards. (g) A Franchisee shall, on the request of any person holding a building moving permit issued by the County, temporarily raise or lower its wires or Cable to permit the moving of buildings. The expense of such temporary removal, raising or lowering of wires or cable shall be paid by the person requesting the same, and the Franchisee shall have the authority to require such payment in advance. The Franchisee shall be given not less than seven (7) days advance notice to arrange for such temporary wire or cable changes. (h) Every Franchisee shall have the authority to trim trees upon and overhanging Streets, alleys, sidewalks and public rights-of-way of the County so as to prevent the branches of such trees from coming in contact with the wires and cables of the Franchisee, provided that all trimming shall be done in accordance with the ANSI 300, American National Standard for Tree Care Operation (or any such successor standard), and under the supervision and direction of the County or VDOT and at the sole expense of the Franchisee. The County or VDOT specifically reserves the right to prohibit the trimming of any tree where the County or VDOT deems that such trimming would be inappropriate. An explanation for the denial shall be provided in writing. (i) No Franchisee shall install above-ground facilities in any portion of its Service Area where all public utility lines are underground, or in any area of the County designated as an underground utility area, and every Franchisee shall be obligated to relocate its existing facilities underground in any portion of its Service Area within ninety (90) days after all public utility lines in that portion of its Service Area have been placed underground, provided, however, that Franchisee may request a partial waiver of this requirement with respect to certain ground-mounted appurtenances, such as Subscriber taps, line extenders, System passive devices (splitters, directional couplers, etc.), amplifiers, power supplies, network reliability units, pedestals, or other related equipment. (j) Vehicles owned or leased by a Franchisee and used in the installation, construction or repair of the Franchisee's System or installation or repair on Subscribers’ premises shall be marked with the Franchisee's identity, and all employees, contractors and subcontractors of a Franchisee shall carry identification, to be produced upon request, which shall provide the employee, contractor, or subcontractor’s name, local business address and local business telephone number . Section 13. Emergency Alert System. Every Franchisee shall comply with the federal Emergency Alert System ("EAS") standards established by Part 11 of the FCC's Rules (47 C.F.R. §11) and any state or local EAS plan approved thereunder. In addition, and to the extent not preempted by federal law or regulation, each Franchisee shall provide for use by such authorized persons as are designated by the County, an emergency override capability whereby the audio or video portion of programming carried on all channels may be October 28, 2003 991 interrupted for the insertion of emergency information. The County may grant relief from the requirements of the foregoing sentence if the County determines in its sole discretion that a Franchisee’s compliance with the federal EAS standards and/or any state or local EAS plan approved thereunder will provide the same functional capability to disseminate emergency information to Subscribers. Section 14. Limits on Rights of Way. This Ordinance shall not be construed to mean that the County, by granting any Franchise hereunder, provides any Franchisee the right to use any Street, right-of-way or property controlled by VDOT or by any person other than the County. Every Franchisee hereunder shall be required to comply with any and all VDOT regulations and requirements set forth for the use of such Streets or rights-of-way controlled by VDOT and may be required to separately obtain from private parties and others necessary consents, not otherwise preempted by federal or state statute or regulation, to use any other rights-of-way not controlled by or vested in the County prior to the installation of any Cable on, under or over the property so affected. Section 15. Approval Required for Franchise Transfer. No Franchisee shall sell, assign, transfer or lease its plant or Cable System to another person, nor transfer any rights under a Franchise to another person, nor may control of a Franchisee be transferred, without the Franchisee having first made written application pursuant to Section 4(f), above, for Board's consent to such transfer and without prior Board approval of such transfer on such reasonable terms and conditions as the Board may impose. No sale, transfer, assignment or lease shall thereafter be effective until the vendee, assignee, transferee or lessee has filed in the office of the County Administrator an instrument, duly executed, reciting the fact of such sale, assignment, transfer or lease, accepting and agreeing to be bound by the provisions of this Ordinance and a Franchise granted pursuant hereto, and agreeing to perform all the conditions that may be imposed by the Board pursuant to its consent. Consent for the transfer, sale, assignment or lease shall not unreasonably be withheld; provided, however, that any costs incurred by the County in evaluating and/or approving such transfer, sale, assignment or lease, not to exceed $5,000.00, shall be paid within 30 days after the submission of an invoice therefor by the County, and no such transfer, sale, assignment or lease shall become effective until such payment is made. . Section 16. County Right in Franchise. (a) The right is hereby reserved by the County to adopt, in addition to the provisions herein contained and in existing applicable ordinances, such additional regulations as it shall find necessary and that are a lawful exercise of its police power. (b) The County shall have the right to supervise, inspect and approve or disapprove all construction or installation work performed by a Franchisee in the Streets, subject to the provisions of this Ordinance and other County laws, ordinances, resolutions, rules and regulations, and to make such inspections as it shall find necessary to ensure compliance with applicable County laws, ordinances, resolutions or regulations. (c) All Streets, rights-of-way, and easements that a Franchisee is permitted to use hereunder shall remain the property of the County or VDOT, as appropriate. Until such time as poles or other equipment are actually installed by a Franchisee, and in the event of future removal of such poles or other equipment, such rights shall remain vested in or immediately revert to the County or VDOT and, in the event of removal, a Franchisee's rights therein shall automatically be canceled. (d) At the time a Franchise becomes effective, the County may require the Franchisee to furnish to the County a County-approved security, in such form and with such sureties as shall be acceptable to the County, guaranteeing the payment of all sums which may at any time become due from the Franchisee to the County under the terms of this Ordinance and any Franchise granted, and further guaranteeing the faithful performance of all obligations of the Franchisee under the terms of this Ordinance and the agreement reflecting the grant of the Franchise. The amount of the security shall be $300,000 unless a franchise agreement otherwise provides. In the event of default under this Ordinance or a Franchise granted pursuant to this Ordinance, the County shall not assume any liability, obligation or October 28, 2003 992 responsibility, but shall instead be entitled, without prejudice to any other remedy available to the County, to levy on and collect from such security all amounts necessary to render the County whole. (e) If at any time after the date a Franchisee's Cable System is activated to provide Cable Service, the Franchisee shall fail materially to comply with the terms of this Ordinance or any Franchise granted, and shall continue to fail to comply or fail to commence taking steps reasonably calculated to cause such compliance for a period of thirty (30) days after receiving notice in writing of non-compliance from the County, the Franchisee shall be assessed a monetary forfeiture by the Office of the County Administrator of not less than $100.00 nor more than $1,000.00 for each day's failure to comply from the date of the first non-compliance, with each day's failure to comply being a separate and distinct offense. The provisions of this sub-section shall not apply if non-compliance is occasioned by events beyond the control of the Franchisee, provided that such events were not proximately caused by the Franchisee's acts or failure to act. In the event the Franchisee shall in good faith contest its liability or the amount of any forfeiture imposed under this Section, no further forfeiture need be paid until such liability is established by the Board of Supervisors, and should such liability be established by the Board of Supervisors, such determination shall be final, and the Franchisee shall have thirty (30) days within which to comply and within which to pay all forfeitures assessed. In the event the Franchisee does not then comply and pay all forfeitures assessed, the County shall have the option (i) to initiate judicial collection proceedings; (ii) to collect upon any security posted; and/or (iii) implement procedures to revoke the Franchise and declare the security forfeited. Section 17. Franchise Fee. (a) Unless a lesser amount is specified in a Franchise, each Franchisee shall pay the County on a quarterly basis a fee (a "Franchise Fee") equal to five percent (5%) of its Gross Revenues derived from the immediately preceding calendar quarter. The Franchise Fee for each calendar quarter shall be paid to the County no later than thirty (30) days after the end of the calendar quarter on which such fee is based. Such payment shall be accompanied by a report, in a form acceptable to the County, itemizing the revenue sources on which the fee payment was calculated and showing how the payment amount was calculated. Any payment made after the date on which it is due shall be subject to a five percent (5%) late payment fee plus interest at the rate that the County is then currently charging for late payments owed to the County. Each Franchise Fee payment shall be accompanied by a summary report showing Gross Revenues received by the franchisee from its operations within the County during the preceding quarter and such other information as the County shall reasonably request with respect to the Franchisee’s service within the County. (b) The County shall have the right to verify by an audit conducted by an independent auditor of its own choosing, that a Franchisee has paid the correct amount of Franchise Fee, and if such audit discloses that a Franchisee's reporting of its Gross Revenues for the audit period has been understated by three percent (3%) or more, said Franchisee shall compensate the County for its reasonable audit expenses. The Franchisee shall grant the County or its auditors access to all relevant documents, records and information relevant to determining whether the Franchisee has paid the correct Franchise Fee. Consistent and material under-reporting of a Franchisee's Gross Revenues over two or more consecutive calendar quarters shall be grounds for revocation of a Franchise. (c) In addition to the audit process of Section 17(b), each Franchisee shall, not less than annually, submit a report from an independent certified public accounting firm reasonably acceptable to the County, certifying to the accuracy of all Franchise Fee payments made for the immediately foregoing four quarters and the compliance of those payments with the requirements of this Ordinance and any Franchise granted hereunder. This annual report shall be in a form consistent with the form specified to accompany quarterly payments under section 17(a). (d) In the event that federal, state, or other regulatory agencies permit a greater or lesser Franchise Fee than set forth in this Ordinance, such payment obligation may be increased or decreased to the maximum amount permissible, upon approval of such increase or decrease by the Board of Supervisors and not less than ninety (90) days advance notice to each affected Franchisee. October 28, 2003 993 (e) Consistent with applicable law, no fee, tax or other payment required to be made by a Cable System operator to the County, including payment of a Business, Professional or Occupational License fee or tax, shall be deemed as part of the Franchise Fee payable to the County hereunder, so long as such fee, tax or other payment obligation is imposed on a non-discriminatory basis on other similarly situated entities doing business within the County. Section 18. Records and Reports. The County and its representatives shall have access during normal business hours to a Franchisee's plans, maps, electronic data, documents, contracts, and engineering, accounting, financial, and statistical data, and, subject to the Subscriber privacy provisions of Section 631 of the Cable Act (47 U.S.C. § 551), customer and service records relating to the Cable System and its operation within the County by the Franchisee and to all other records required to be kept hereunder. The County may review, copy, and audit any such records, documents or electronic data. Section 19. Franchise Revocation. (a) Whenever any Franchisee shall refuse, neglect or willfully fail to construct, operate or maintain its Cable System or to provide Cable Service to its Subscribers in substantial accordance with the terms of this Ordinance or any applicable rule or regulation, or materially breaches its Franchise Agreement, or materially violates this Ordinance or other law, ordinance, resolution, rule, or regulation, or practices any fraud or deceit upon the County or its Subscribers within the County, or fails to pay Franchise Fees, or if such Franchisee becomes insolvent, as adjudged by a court of competent jurisdiction, or is unwilling or unable to pay its uncontested debts, or is adjudged bankrupt, or seeks relief under the bankruptcy laws of the United States or any state, then the Franchise may be revoked. (b) In the event the County believes that grounds for revocation exist or have existed, it may notify the affected Franchisee in writing, setting forth the facts on which such belief is grounded. If, within thirty (30) days following such written notification, the Franchisee has not furnished reasonably satisfactory evidence to the County that corrective action has been taken or is being actively and expeditiously pursued to completion, or that the alleged violations did not occur, or that the alleged violations were beyond the Franchisee's control, the County may call and give notice of a hearing, pursuant to the hearing requirements set forth in Section 20 of this Ordinance to consider revocation of the Franchisee's Franchise. If the County, following such hearing, finds that grounds for revocation exist, the Board may by resolution or ordinance duly adopted revoke for cause the Franchise granted to such Franchisee. (c) In the event that the Franchise has been revoked, the County shall, to the extent then permitted by existing law, have the option to: (i) acquire, at fair market value excluding any value attributable to the Franchise itself, all the assets of the Franchisee's System located within the County; or (ii) require the sale, at fair market value excluding any value attributable to the Franchise itself, of all such assets of the Franchisee's System to another person; or (iii) require the removal of all such assets from the County, at Franchisee's sole expense (or, if Franchisee fails to do so, the County may remove those assets at Franchise's sole expense); or (iv) if such assets are abandoned or deemed abandoned under applicable law, succeed to ownership or title thereof. Unless some later date is agreed to by the Franchisee, such option must be exercised by the County within one (1) year from the date of the revocation of the Franchise, or the entry of the final judgment by a court reviewing the question of the revocation, or the entry of a final order upon appeal of same, whichever is later. In any Franchise revocation proceeding, if the County and a Franchisee cannot agree upon the fair market value excluding any value attributable to the Franchise itself of the Franchisee’s assets located within the County, then the County and the Franchisee shall each at their own cost select a different independent appraiser (each of whom shall be an active member of and be certified by the Appraisal Institute or its successor) who shall each provide an appraisal of the value at October 28, 2003 994 issue. If the greater appraised value does not exceed the lesser appraised value by more than ten percent (10%) of such lesser value, then the two appraised values shall be averaged and the resultant value shall be binding upon the County and the Franchisee; if the greater appraised value exceeds the lesser appraised value by more than ten percent (10%), then the two previously chosen appraisers shall together choose a third independent appraiser, who shall have no knowledge of the prior appraised values, and who shall provide an appraisal of the value, which shall be binding upon the County and the Franchisee. Any valuation determined in accordance with the immediately foregoing procedures shall conclusively be deemed as an equitable price, as specified at 47 U.S.C. § 547. (c) The revocation of a Franchisee's rights as set forth herein shall in no way affect any other rights the County may have under the Franchise with such Franchisee or under this Ordinance or any other provision of law or ordinance. Notwithstanding the pendency or culmination of any proceedings terminating a Franchise, the County may nonetheless by Board action extend for a period of not more than two (2) years beyond the proposed or actual date of termination the entitlement of the affected Franchisee to operate the Cable System, during which period all provisions of this Ordinance and the applicable Franchise Agreement shall govern such operations. Section 20. Hearing Requirements for Matters Affecting Franchises. Whenever a requirement is set forth herein for a public hearing or meeting to be called concerning any matter related to the evaluation, modification, renewal, revocation or termination of any Franchise issued pursuant to this Ordinance, such hearing or meeting shall not be held unless, in addition to any applicable notice requirements of Virginia law, the County shall have advised the Franchisee in writing, at least thirty (30) days prior to such hearing or meeting, and provided notice to the public as required by law. In addition, the County may require the affected Franchisee to, and when so required the Franchisee shall, give notice of such hearing, and any continuation thereof, by announcement on its Cable System in such manner, on such channels and at such times as both parties shall find to be reasonable under the circumstances. Any such hearing may be adjourned from time to time as legally permitted without further notice other than the announcement, at the time of adjournment, of the time and place of the continued hearing and such announcement, if any, as the County may require the Franchisee to make on its Cable System. Section 21. Costs. The County may require that each applicant for an initial, renewal, modification or transfer of a Franchise compensate the County for its direct, out of pocket costs incurred in the award of a Franchise hereunder, including the County’s expenses incurred for special counsel or consultants retained to assist it in such award. A bill for such costs as are then determinable may be presented to the Franchisee by the County upon the franchisee’s filing of its acceptance of a Franchise hereunder, and if so presented shall be paid at that time, and such additional costs as are determined as payable by the County shall thereafter be paid within fourteen (14) days of presentment to the Franchisee. Section 22. Open Video System Operation. In the event that any person shall obtain certification from the FCC as an Open Video System ("OVS") operator and thereafter offer or continue to provide service within the County as an OVS operator, then all portions of this Ordinance which are, or may lawfully be, applicable under governing statute or regulation to OVS operators, including payment of required fees, which may otherwise be imposed upon cable television operators (including, without limitation, franchise fees), shall apply without interruption or abatement to such person except to the extent expressly prohibited by law or regulation. Section 23. Severability. (a) All terms and conditions of this Ordinance and any Franchise are subject to the rules and regulations of, and to any required approval of, federal and state agencies. If any provision of this Ordinance or any Franchise granted hereunder is held by any court or federal or state agency of competent jurisdiction to be invalid as conflicting with any federal or state law, rule or regulation now or hereafter to become in effect, or is held by such court or agency to be modified in any way in order to conform to the requirement of any such law, rule or regulation, such provision shall be considered a October 28, 2003 995 separate, distinct and independent part of this Ordinance or the Franchise, and such holding shall not affect the validity and enforceability of any other provisions of this Ordinance or the Franchise. (b) Notwithstanding the foregoing, if any part of this Ordinance or any Franchise is found to be invalid by the FCC or any court of competent jurisdiction, then the parties shall renegotiate such part to preserve, to the extent permitted by law, the benefit of the parties’ original bargain. In the event that such law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed, so that the provision hereof which had been held invalid or modified is no longer in conflict with the law, rules, and regulations then in effect, said provision shall thereupon return immediately to full force and effect, at the option of the County. Section 24 Acceptance of Franchise. No Franchise shall be deemed as granted or renewed pursuant to this Ordinance unless such grant or renewal be approved by the Board and, within fourteen (14) days after its receipt of a Franchise provided by the County, the applicant therefor acknowledges its acceptance of the provisions of this Ordinance and accepts and executes the Franchise, files such acknowledgement, acceptance and agreement with the County, and provides payment of all sums due hereunder and submits all documentation required hereunder. Section 25. Franchisee to Abide by Applicable Laws. By accepting a Franchise and executing a Franchise Agreement, a Franchisee agrees that it will abide by all applicable federal, state and local laws, rules and regulations. Section 26. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior ordinances or resolutions or parts thereof concerning cable television that are inconsistent with or contravene this Ordinance or any Franchise granted thereunder are hereby repealed as of the effective date of this Ordinance. Section 27. Effective Date. The effective date of this Ordinance shall be October 31, 2003. Appendix A: FCC Customer Service Standards 47 C.F.R. § 76.309. APPENDIX A FCC CUSTOMER SERVICE STANDARDS 47 C.F.R. §76.309 76.309 Customer service obligations (a) A cable franchise authority may enforce the customer service standards set forth in section (c) of this rule against cable operators. The franchise authority must provide affected cable operators ninety (90) days written notice of its intent to enforce the standards. (b) Nothing in this rule should be construed to prevent or prohibit: (1) A franchising authority and a cable operator from agreeing to customer service requirements that exceed the standards set forth in section (c) of this rule; (2) A franchising authority from enforcing, through the end of the franchise term, pre-existing customer service requirements that exceed the standards set forth in section (c) of this rule and are contained in current franchise agreements; (3) Any State or any franchising authority from enacting or enforcing any consumer protection law, to the extent not specifically preempted herein; or (4) The establishment or enforcement of any State or municipal law or regulation concerning customer service that imposes customer service requirements that exceed, or address matters not addressed by, the standards set forth in section (c) of this rule. October 28, 2003 996 (c) Effective July 1, 1993, a cable operator shall be subject to the following customer service standards: (1) Cable system office hours and telephone availability. (i) The cable operator will maintain a local, toll-free or collect call telephone access line which will be available to its subscribers 24 hours a day, seven days a week. (A) Trained company representatives will be available to respond to customer telephone inquiries during normal business hours. (B) After normal business hours, the access line may be answered by a service or an automated response system, including an answering machine. Inquiries received after normal business hours must be responded to by a trained company representative on the next business day. (ii) Under normal operating conditions, telephone answer time by a customer representative, including wait time, shall not exceed thirty (30) seconds when the connection is made. If the call needs to be transferred, transfer time shall not exceed thirty (30) seconds. These standards shall be met no less than ninety (90) percent of the time under normal operating conditions, measured on a quarterly basis. iii) The operator will not be required to acquire equipment or perform surveys to measure compliance with the telephone answering standards above unless an historical record of complaints indicates a clear failure to comply. (iv) Under normal operating conditions, the customer will receive a busy signal less than three (3) percent of the time. (v) Customer service center and bill payment locations will be open at least during normal business hours and will be conveniently located. (2) Installations, outages and service calls. Under normal operating conditions, each of the following four standards will be met no less than ninety five (95) percent of the time measured on a quarterly basis: (i) Standard installations will be performed within seven (7) business days after an order has been placed. "Standard" installations are those that are located up to 125 feet from the existing distribution system. (ii) Excluding conditions beyond the control of the operator, the cable operator will begin working on "service interruptions" promptly and in no event later than 24 hours after the interruption becomes known. The cable operator must begin actions to correct other service problems the next business day after notification of the service problem. (iii) The "appointment window" alternatives for installations, service calls, and other installation activities will be either a specific time or, at maximum, a four-hour time block during normal business hours. (The operator may schedule service calls and other installation activities outside of normal business hours for the express convenience of the customer.) (iv) An operator may not cancel an appointment with a customer after the close of business on the business day prior to the scheduled appointment. (v) If a cable operator representative is running late for an appointment with a customer and will not be able to keep the appointment as scheduled, the customer will be contacted. The appointment will be rescheduled, as necessary, at a time which is convenient for the customer. (3) Communications between cable operators and cable subscribers. (i) Refunds. Refund checks will be issued promptly, but no later than either- October 28, 2003 997 (A) The customer's next billing cycle following resolution of the request or thirty (30) days, whichever is earlier, or (B) The return of the equipment supplied by the cable operator if service is terminated. (ii) Credits. Credits for service will be issued no later than the customer's next billing cycle following the determination that a credit is warranted. (4) Definitions. (i) Normal Business Hours. The term "normal business hours" means those hours during which most similar businesses in the community are open to serve customers. In all cases, "normal business hours" must include some evening hours at least one night per week and/or some weekend hours. (ii) Normal Operating Conditions. The term "normal operating conditions" means those service conditions which are within the control of the cable operator. Those conditions which are not within the control of the cable operator include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Those conditions which are ordinarily within the control of the cable operator include, but are not limited to, special promotions, pay-per-view events rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the cable system. (iii) Service Interruption. The term "service interruption" means the loss of picture or sound on one or more cable channels. On motion of Supervisor Altizer to adopt the ordinance, and carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None (b) Ordinance approving and authorizing the execution of a cable television franchise agreement by and between the County of Roanoke, Virginia and CoxCom, Inc., d/b/a Cox Communications Roanoke O-102803-13 There was no discussion or citizens present to speak on this issue. Supervisor Altizer moved to adopt the ordinance authorizing the execution of a cable television franchise agreement. The motion carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara October 28, 2003 998 NAYS: None ORDINANCE 102803-13 APPROVING AND AUTHORIZING THE EXECUTION OF A CABLE TELEVISION FRANCHISE AGREEMENT BY AND BETWEEN THE COUNTY OF ROANOKE, VIRGINIA AND COXCOM, INC., d/b/a COX COMMUNICATIONS, ROANOKE WHEREAS, by Agreement dated May 1, 1991, the County entered into a Cable Television Franchise Agreement for a term of 12 years with Cox Cable Roanoke, Inc., predecessor in interest to CoxCom, Inc., d/b/a Cox Communications Roanoke (Cox), which was authorized by Ordinance No. 42391-15; and WHEREAS, representatives of the County, along with representatives of Roanoke City and the Town of Vinton, have been renegotiating a renewal agreement with Cox; and WHEREAS, on April 22, 2003, by Ordinance No. 42203-7, the Roanoke County Board of Supervisors extended the 1991 Cable Television Franchise Agreement for six months, until October 31, 2003, to allow the renewal negotiations to be completed; and WHEREAS, such negotiations have been completed and a Cable Television Franchise Agreement acceptable to the County of Roanoke, and also to the City of Roanoke and the Town of Vinton, has been reached, subject to approval by the Roanoke County Board of Supervisors; and WHEREAS, Cox is prohibited by federal law from operating a cable television system within any jurisdiction without a franchise agreement or extension as defined by federal law; and WHEREAS, the first reading of this ordinance and on the County's adoption of a revised Cable Television Franchise Ordinance was held on October 14, 2003, and the second reading and public hearing of this ordinance and the revised Cable Television Franchise Ordinance was held on October 28, 2003, at which public hearing citizens and parties in interest were afforded an opportunity to be heard on such matters; and WHEREAS, the Board of Supervisors has previously passed a revised Cable Television Franchise Ordinance that becomes effective on October 31, 2003. BE IT ORDAINED by the Board of Supervisors of Roanoke County as follows: 1. The Board of Supervisors hereby approves the terms of the Cable Television Franchise Agreement by and between the County of Roanoke, Virginia and CoxCom, Inc. d/b/a/ Cox Communications, Roanoke, as of November 1, 2003, attached hereto. 2. The County Administrator is authorized to execute, on behalf of the County, a Cable Television Franchise Agreement by and between the County and CoxCom, Inc., d/b/a Cox Communications Roanoke in a form substantially similar to the one attached hereto, and in a form approved by the County Attorney. Such Agreement will provide for a term of 15 years, from November 1, 2003 through October 31, 20018, a Franchise Fee Payment to the County of 5% of Cox’s gross revenues, a capital grant October 28, 2003 999 for educational and/or governmental access equipment and facilities for allocation among the County, Roanoke City and the Town of Vinton in the total amount of $1,150,000.00 to be paid in accordance with the schedule set forth in the Agreement mentioned above, and such other terms and conditions as are deemed to be in the best interest of the County of Roanoke. 3. The County Administrator is further authorized to take such further actions and execute such additional documents as may be necessary to implement and administer such Cable Television Franchise Agreement. 4. This ordinance shall be in full force and effect from its passage. On motion of Supervisor Altizer to adopt the ordinance, and carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None 5. Second reading of an ordinance to amend the proffered conditions on a 99.38 acre tract of real estate (Vinton Business Center), located in the 2100 block of Hardy Road, Vinton Magisterial District, with a zoning classification of Planned Technology District (PTD) with conditions, upon the petition of the Town of Vinton. (Janet Scheid, Chief Planner) O-102803-14 Mr. Hodge advised that the Town of Vinton demonstrated foresight when they purchased this property since it was proposed at different times to be used as a mobile home park, a recreational area as part of Explore Park, and recently it was rezoned as a Planned Technology District for economic development. Cardinal Glass is an excellent company, well respected in the community and will make an excellent addition to the County’s economic development efforts. He displayed a scale model of the property, which was constructed at Supervisor Altizer’s suggestion, and advised that October 28, 2003 1000 the building has been located to benefit the parkway, the citizens, the church located nearby, as well as providing access. The company could have located closer to the residential community without any change of conditions but staff is recommending changes to make the project more successful. The model gives the opportunity to see how everything will interact. There is a walking trail which was requested by the citizens, and storm water maintenance is in one location rather than two and featured as part of the recreational area. There is an additional conservation area closer to the parkway and an additional buffer for the citizens in the area. Mr. Hodge advised that Gary Johnson, Parkway Superintendent, has indicated that this property is no longer in the view shed area but to be even more protective of the parkway, the staff lowered the site so that it is barely visible from only a few locations along the parkway. Mr. Hodge indicated that he was very comfortable with the process that has brought the project to this point. Ms. Scheid advised that this request is to change the proffered conditions on the Planned Technology District (PTD) for the 100-acre property known as the McDonald Farm. In 1999, when the PTD zoning classification was applied to this property, several of the conditions placed on the property were in response to a proposed view shed map that the Blue Ridge Parkway was developing. A portion of the 100 acres was within that view shed and those conditions imposed limits on the type of exterior materials that could be used in that area and limits the pitch of the roof to no less than a 4/12 pitch. In 2003 and during the last year, the Blue Ridge Parkway has October 28, 2003 1001 revised and scaled back their view shed analysis and as a result, the Town is asking that the more restrictive conditions that limited the exterior materials and the roof pitch to no less than 4/12 be taken out of the PTD zoning. The Town is requesting this change because Cardinal Glass would not be able to build with the roof pitch of no less than 4/12. Cardinal Glass will occupy about 25 acres of the property in Phase I, which will leave three or four sites to be developed in the future. At this time, the Town is not requesting any change to the covenants or to the proffered conditions that deal with the size of the building or the use of the building. The size and use of the building proposed by Cardinal Glass is allowed by right in the PTD at this time. The National Park Service has informed the County and the Town that they are comfortable with this proposal. The National Park Service has requested that the Town grant a conservation or scenic easement on a portion of the property that is closest to Feather Road and to the Park Service, and agree to double the screening and buffering around the church site. Ms. Scheid expressed appreciation to Mayor Davis, the Council members, and Town Manager Goodman for their willingness to work together on this project. Mayor Davis advised that this shows the efforts of cooperation between the County and the Town, and he expressed appreciation to the Board members and staff. Working together has brought in a $24 million business with 200 to 300 jobs to this area which will benefit the entire Roanoke Valley. He thanked Mr. Chittum and Mr. Hodge for their efforts at ensuring the success of this project. October 28, 2003 1002 Supervisor Altizer advised that great things happen when people work together for a common cause and he commended Mayor Davis, members of the Town Council, and Mr. Goodman for their efforts. He applauded the credibility of the company wanting to be a good neighbor since they did not seek to locate their business closer to the residential area as they could have done by right. Supervisor Minnix expressed appreciation to the elected officials from Vinton who have worked hard to make this project a success while considering the needs of the citizens they serve. He also expressed appreciation to the County and Vinton staffs. Supervisor McNamara advised that in 1999, there was a lot of work done on developing conditions for the development of McDonald Farm but no one knew who the residents of the park would be. If a company like Cardinal Glass had been interested at that time, the proffered conditions would have been favorable for its development. He advised that he was pleased that Cardinal Glass chose this location and welcomed them to the Roanoke Valley. Supervisor Altizer moved to adopt the ordinance. The motion carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None ORDINANCE 102803-14 TO AMEND THE PROFFERED CONDITIONS ON A 99.38-ACRE TRACT OF REAL ESTATE (McDONALD FARM) LOCATED AT THE 2100 October 28, 2003 1003 BLOCK OF HARDY ROAD (TAX MAP NO. 71.11-1-1) IN THE VINTON MAGISTERIAL DISTRICT, WITH A ZONING CLASSIFICATION PTD WITH CONDITIONS, UPON THE APPLICATION OF THE TOWN OF VINTON WHEREAS, the first reading of this ordinance was held on September 23, 2003, and the second reading and public hearing were held October 28, 2003; and, WHEREAS, the Roanoke County Planning Commission held a public hearing on this matter on October 7, 2003; and WHEREAS, legal notice and advertisement has been provided as required by law. BE IT ORDAINED by the Board of Supervisors of Roanoke County, Virginia, as follows: 1. That in October of 1999 the zoning classification of a certain tract of real estate containing 99.38 acres, as described herein, and located at the 2100 block of Hardy Road (Tax Map Number 71.11-1-1) in the Vinton Magisterial District, was changed from the zoning classification of R-1, Low Density Residential District, to the zoning classification of PTD, Planned Technology Development District, with the following conditions: All submitted materials, including "Protective Covenants, Conditions, and Restrictions for the McDonald Farm" in addition to the following proffers: (1) On Parcels "G" and "H" on the concept plan dated August of 1999, Mattern & Craig, Inc., all exterior building materials shall be residential in character. The exterior wall materials shall be limited to brick, stone, wood, vinyl or aluminum siding and other materials customarily found on residential structures. Exterior colors shall be predominantly earth tone colors. On Parcels "G" and "H" roof pitch shall be no less than a 4/12 pitch and roof materials shall be non-reflective, earth tone colors. (2) Buildings on Parcel "A" identified on the concept plan dated August of 1999, Mattern & Craig, Inc., shall be oriented inward on a central, landscaped parking area. No customer parking shall be permitted to the rear of the buildings. (3) Any residential, civic, office, commercial, industrial or miscellaneous use types listed in the Roanoke County Zoning Ordinance, that require a Special Use Permit, shall also require a Special Use Permit under this Planned Technology District rezoning, except as amended by the "Protective Covenants, Conditions and Restrictions for the McDonald Farm". (4) Broadcasting Towers shall be prohibited. 2. That revision of the proffered conditions is taken upon the application of The Town of Vinton. 3. That the owner of the property has voluntarily proffered in writing the following revised condition (1) which the Board of Supervisors of Roanoke County, Virginia, hereby accepts: October 28, 2003 1004 (1) On Parcels "G" and "H" on the concept plan dated August of 1999, Mattern & Craig, Inc., all exterior building materials shall be residential in character. The exterior wall materials shall be limited to brick, stone, wood, vinyl or aluminum siding and other materials customarily found on residential structures. Exterior colors shall be predominantly earth tone colors. On Parcels "G" and "H" roof pitch shall be no less than a 4/12 pitch and roof materials shall be non-reflective, earth tone colors. All other proffers remain in effect. 4. That said real estate is a 99.388 acre tract known as The McDonald Farm (Tax Map No. 71.11-1-1) and more fully described on Exhibit 1 attached to this ordinance. 5. That this ordinance shall be in full force and effect thirty (30) days after its final passage. All ordinances or parts of ordinances in conflict with the provisions of this ordinance be, and the same hereby are, repealed. The Zoning Administrator is directed to amend the zoning district map to reflect the change in zoning classification authorized by this ordinance. On motion of Supervisor Altizer to adopt the ordinance, and carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None 6. Second reading of an ordinance to amend the Roanoke County Zoning Ordinance, Section 30-29-5 Commercial Use Types to include a new definition for “Outpatient Mental Health and Substance Abuse Center”, and Section 30-54-2(B) C-2 General Commercial to add “Outpatient Mental Health and Substance Abuse Center” as a use allowed only by Special Use Permit, upon the petition of the Roanoke County Planning Commission. (Janet Scheid, Chief Planner) O-102803-15 October 28, 2003 1005 Ms. Scheid reported that on September 30, 2003, the County Zoning Administrator issued an opinion that the proposed use of the methadone clinic is sufficiently different from any use type defined in the Roanoke County Zoning Ordinance and per Section 30-29 (B) would require an amendment to the text of the Zoning Ordinance. The amendment is the addition of a definition entitled Outpatient Mental Health and Substance Abuse Center that reads as follows: Establishments with medical staff providing outpatient service related to the diagnosis and treatment of mental health disorders, alcohol, or other substance abuse. These establishments may provide counseling and/or refer patients to more extensive treatment programs, if necessary. Included in this use type are outpatient alcohol treatment centers, outpatient detoxification centers, outpatient drug and substance abuse centers, and outpatient mental health centers. In addition to the definition, the ordinance would designate where this use would be allowed and it designated that as the C-2 Commercial District as a Special Use Permit. There were no citizens present to speak on this item. Supervisor Minnix advised that upon advice of counsel and because of possible litigation (concerning the location of a proposed methadone clinic,) he would refrain from commenting fully. However, he felt that the proposed clinic was not appropriate for the location. Supervisor Church advised that he also felt that this is the wrong location and that the Board has a duty to protect the people who locate and build a home with October 28, 2003 1006 the expectation to live there under certain conditions. Supervisor Minnix moved to adopt the ordinance. The motion carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None ORDINANCE 102803-15 AMENDING THE ROANOKE COUNTY ZONING ORDINANCE, SECTION 30-29-5. COMMERCIAL USE TYPES TO INCLUDE A NEW DEFINITION FOR “OUTPATIENT MENTAL HEALTH AND SUBSTANCE ABUSE CENTER” AND SECTION 30-54- 2(B) C-2 GENERAL COMMERCIAL TO ADD “OUTPATIENT MENTAL HEALTH AND SUBSTANCE ABUSE CENTER” AS A USE ALLOWED ONLY BY SPECIAL USE PERMIT BE IT ORDAINED by the Board of Supervisors of Roanoke County, Virginia, as follows: 1. That Section 30-29-5. Commercial Use Types of the Roanoke County Zoning Ordinance be amended to read and provide as follows: * * * * Outpatient Mental Health and Substance Abuse Center: Establishments with medical staff providing outpatient services related to the diagnosis and treatment of mental health disorders, alcohol, and other substance abuse. These establishments may provide counseling and/or refer patients to more extensive treatment programs, if necessary. Included in this use type are outpatient alcohol treatment centers, outpatient detoxification centers, outpatient drug and substance abuse centers, and outpatient mental health centers. * * * * 2. That Section 30-54-2. (B) Permitted Uses of the Roanoke County Zoning Ordinance be amended to read and provide as follows: * * * * (B) The following uses are allowed by Special Use Permit pursuant to Section 30-19. An asterisk (*) indicates additional, modified or more stringent standards are listed in Article IV. Use and Design Standards, for those specific uses. 2. Commercial Uses * * * * Outpatient Mental Health and Substance Abuse Center * * * * October 28, 2003 1007 3. That this ordinance shall be in full force and effect from and after its passage. On motion of Supervisor Minnix to ordinance, and carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None IN RE: SECOND READING OF ORDINANCES 1. Second reading of an ordinance amending the Roanoke County Code by the amendment of Section 2-7. “Reimbursement of Expenses Incurred for Emergency Response”. (Paul Mahoney, County Attorney) O-102803-16 Supervisor Church advised that the schedule for this meeting has been very heavy and did not allow time for the afternoon work session when this item could be discussed. Supervisor Church moved to postpone this item until the December 16, 2003 meeting and to schedule a work session at that meeting. The motion carried by the following recorded vote: AYES: Supervisors Flora, Church, Minnix, Altizer, McNamara NAYS: None IN RE: CITIZENS COMMENTS AND COMMUNICATIONS October 28, 2003 1008 . MrChris Helton, 3726 Popcorn Lane, spoke of his concerns about the hazardous road conditions on Harborwood Road and advised that he sent a packet of information to the Board with a petition. He advised that the number of accidents has risen by two since he sent the packets. He referred to problems with horse trailers going to and from the Equestrian Center, bike riders, and school buses. Supervisor Church agreed that Harborwood Road is a very dangerous road and is hardly passable with a truck and school bus. As requested by Supervisor Church, Mr. Covey advised that the road is very narrow with sharp curves and staff is in the process of collecting information to design a new entrance into the Equestrian Center. Among other requirements, an easement for sight distance will be necessary and negotiations with a property owner are underway. Supervisor Church advised that the safety and well being of all citizens is very important. He pointed out that this situation has been ongoing for a long time and he asked Mr. Helton to report to the other citizens that progress is being made . Mr. Covey confirmed to Supervisor McNamara that the Equestrian Center is part of the County’s Parks, Recreation & Tourism Department. Supervisor McNamara requested that Mr. Covey ask the Police Chief to look at the road and if it is not safe, to curtail the operation of the Equestrian Center if it is causing accidents. Mr. Dallas Simmons, 5231 Hill Drive, advised that the residents of Hill Drive in the Pine Hill Subdivision, were informed through a newspaper article in July, October 28, 2003 1009 2003, that their neighborhood was located in Botetourt County although they have been paying real estate taxes to Roanoke County for many years. He advised that in 1994, he constructed his home with a building permit from Roanoke County but two years ago, the County issued a building permit to add another room only after the plans had been approved by Botetourt County. The only official information issued to the residents has been notice that their voting registration has been transferred from Roanoke County to Botetourt County, and as of January 1, 2005, Botetourt County will begin assessing their properties. The residents are very concerned that their children will have to move from Roanoke County schools to Botetourt schools. He asked for the Board’s assistance in protecting their rights in this matter and asked that the citizens be involved in any decision making process. Ms. Heather Simmons, 5231 Hill Drive, advised that she is concerned about the lack of notification and the fact that the citizens have not been involved in these decisions. She is concerned that the seven children who live on Hill Drive are the real victims and their best interests are not being considered. She is a Botetourt County School teacher and has no issue with the quality of schools in Botetourt County. The residents are asking the Board’s assistance to allow the seven children of Hill Drive who are currently enrolled in the Roanoke County school system from kindergarten through th the 12 grade to remain in Roanoke County schools. Mr. Scott Ferguson, 5209 Hill Drive, agreed with Mr. and Mrs. Simmons’ comments. He asked that the children be allowed to remain in County schools and that October 28, 2003 1010 the total be changed to eight to include his child who is not yet in school. He also advised that when he bought his home seven years ago, it was deeded in Roanoke County. Mr. Albert Mitchell, 5105 Hill Drive, advised that he has two children currently in the County schools. He bought his house because it was in Roanoke County and the children who have made friends in schools for years should be allowed to remain in those schools. Mr. Roger Austin, 5117 Hill Drive, advised that he thought Hill Drive was located in Roanoke County for the past twenty-five years and expressed his opinion that the children should be allowed to remain and graduate in their present schools. Ms. Deanna C. Ross, 5124 Hill Drive, advised that she was greatly disturbed that the member of the Board who represented these citizens neglected to include them directly in the decision to give this property to another county. Supervisor Altizer advised that the citizens did nothing wrong and this situation was created many years ago. He advised that there will be a community meeting in December to discuss this issue with all concerned parties. At first, he felt that the solution would be a boundary line adjustment which would leave Hill Drive in Roanoke County. However, legally, this property is located in Botetourt County which makes the situation more difficult. He has started a dialogue with the School Board members and hopefully at the community meeting, he will have more information. October 28, 2003 1011 Supervisor Minnix advised that he concurred with Supervisor Altizer’s comments and felt that having a community meeting with all parties involved is necessary. In response to Supervisor Minnix’s inquiry, Mr. Mahoney advised that the power to grandfather the eight children to remain in the Roanoke County schools rests solely with the School Board. Supervisor Church advised that he thought there should be a way to fix this problem. He complimented the speakers on the way in which they presented their concerns and advised that he would try to help find the solution. Supervisor Flora advised that it should be mentioned that this Board played no part in the decision by Botetourt County to advise these citizens that Hill Drive was located in Botetourt County. When this situation was presented to the Board last year, their decision was to leave it alone. After Botetourt County made their decision to move forward, the Board tried unsuccessfully to find other ways to reduce the impact such as a boundary adjustment. The Board is still working behind the scenes and he asked the citizens to let the process work out as he feels encouraged that a solution can be found. Supervisor McNamara advised that there are other similar situations and he would like to move very slowly because it is extremely disruptive. About six months ago, during a briefing on this issue, the Board knew the school attendance would be a serious issue for Hill Drive residents. The Board will continue to push for a satisfactory resolution of the situation. October 28, 2003 1012 IN RE: REPORTS AND INQUIRIES OF BOARD MEMBERS Supervisor Church requested that all citizens exercise their right to vote on November 4th. Supervisor Minnix congratulated the Police Department upon again winning accreditation. Mr. Hodge advised that the final approval of the accreditation will not be known until November 22, 2003. Supervisor McNamara advised that Halloween will be celebrated on Friday, October 31, and outdoor activities should end by 9:00 p.m. as is the custom. He asked Mr. Hodge to have extra police on duty and requested that citizens drive carefully during Halloween. IN RE: ADJOURNMENT Chairman McNamara adjourned the meeting at 8:57 p.m. to November 9, 2003, at 2 p.m. at The Homestead for the Virginia Association of Counties Conference and a Board Retreat. Submitted by: Approved by: ________________________ ________________________ Brenda J. Holton Joseph P. McNamara Deputy Clerk to the Board Chairman