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HomeMy Public PortalAbout1992_01_28TOWN COUNCIL MEETING MINUTES OF JANUARY 28, 1992 A regular meeting of the Leesburg Town Council was held on January 28, 1992, at 7:30 p.m., in the Council Chambers, 25 West Market Street. Leesburg, Virginia. The meeting was called to order by the Mayor. INVOCATION was given by Councilmember Donald A. Kimball SALUTE TO THE FLAG was led by Councilmember William F. Webb ROLL CALL Councilmembers present Georgia W. Bange James E. Clem Donald A. Kimball Claxton E. Lovin William F. Webb Mayor Robert E. Sevila Absent Councilmember Christine M. Forester Staff members present Town Manager Steven C. Brown Assistant Town Manager for Economic Development and Administration Peter Stephenson Director of Engineering and Public Works Thomas A. Mason Director of Utilities Randolph W. Shoemaker Director of Parks and Recreation Gary Huff Zoning Administrator Scott Johnson Planner Gene Arner Planner Sally Vecchio Engineer Aref Etemadi Public Information Office Susan Farmer Town Attorney George Martin Clerk of Council Barbara Markland APPROVAL OF MINUTES MOTION On motion of Mr. Webb, seconded by Ms. Bange, the special meeting minutes of June 25, 1991 and January 14, 1992 and the regular meeting minutes of June 25, 1991 and January 14, 1992, were approved as submitted. VOTE Aye: Councilmembers Bange, Clem, Kimball, Lovin, Webb, Mayor Sevila Nay: None Absent: Forester PETITIONERS Mr. Bill Neville, Co-Chairman of the Greenways and Trails Advisory Committee for Leesburg and Loudoun County, addressed the Council presenting the final Draft Master Plan for the Greenways and Trails System. He requested that this master plan be considered an important part of the Town Plan update and be referred to the appropriate people for a continued review. Mr. Neville acknowledged the assistance of Gary Huff and members of the town's community. He thanked the Council for their support. Mr. Bill Fissell, representing the Northern Virginia Building Industry Association (NVBIA), addressed the Council with regard to the western pressure zone prorata fee - proposed legislation item number 9 q). Mr. Neville raised the following questions and concerns: 1. The report states that 32 percent of the cost for the proposed improvements is for the public benefit and 68 percent for the benefit of the property owners. The percentages are based on "engineering assumptions included in our water system computer model." We would like to know, on behalf of the landowners that are affected, what were those assumptions used to establish those percentages. The entire cost and prorata seem to be based on those percentages of the total construction cost. 2. The total estimated cost is $1.8 million. We would like to see a breakdown of the costs in the phasing of the construction that was assumed. How do those costs relate to the s!udies that have been Minutes of January 28, 1992 adopted (i.e., water/sewer rate study, water master plan)? 3. The report also mentioned that the estimated recoverable cost is about $1.2 million based on "current zoning and land use." Are all the undeveloped properties in that portion of town shown on the exhibit factored into the cost? What densities were assumed for the unzoned land? 4. On an undeveloped project - to build a portion of the western pressure zone improvements as part of the development of a piece of property. How and when would they be reimbursed? Would the prorata be reduced or would the availability fees be reduced? 5. If a vacant project could be fully developed without the proposed improvements to the western pressure zone why should that property be assessed the same prorata share in excess of the availability fees? 6. In relation to the recently adopted water and sewer rate study - how does it relate? We are having trouble finding the consistency. We understand that this does not require a public hearing, however, there are a lot of properties affected by this. Most of the property owners are not aware of this. Mr. Dave Daugherty, representing the Loudoun County Transportation Association, addressed the Council. He briefly reported on the 2nd annual meeting, presenting the Mayor with a 1992 Presidents Award trophy for the Town of Leesburg. MAYOR'S REPORT Mayor Sevila announced that the Washington Redskins won Super Bowl XXVI and introduced Coach Don Breaux of the Washington Redskins. Mayor Sevila presented the following resolution to Coach Breaux. RESOLUTION OF CONGRATULATIONS WHEREAS, the WASHINGTON REDSKINS won SUPER BOWL XXVI by defeating the Buffalo Bills 37-24, on January 26, 1992 in the Minneapolis Metrodome; and WHEREAS, the WASHINGTON REDSKINS, the NATIONAL FOOTBALL LEAGUE CHAMPIONS, achieved an overall record of 17-2 during the 1991, regular and post-season schedule, outscoring their opponents 587-265; and WHEREAS, the REDSKIN players epitomize dedicated, professional athletes; and WHEREAS, coach Joe Gibbs and the REDSKINS coaching staff consistently demonstrate skillful winning strategy and team discipline; and WHEREAS, REDSKINS players and staff offer quality role models for our youth by extolling family values, achieving ultimate goals through hard work and team spirit and maintaining the proper perspective and humility; and WHEREAS, REDSKINS PARK is soon to be located near Leesburg in Loudoun County; and WHEREAS, many current and former members of the REDSKINS organization live in Leesburg and the surrounding area; and WHEREAS, the REDSKINS organization contributes significantly to charitable and economic development efforts in Northern Virginia; and WHEREAS, the citizens of the Town of Leesburg take great pride in the character, quality and success of the REDSKINS organization; and WHEREAS, the citizens of the Town of Leesburg wish to convey their sincere respect and appreciation for the accomplishments of the professional football organization known as the WASHINGTON REDSKINS. THEREFORE, RESOLVED by the Council of the Town of Leesburg in Virginia as follows: The WASHINGTON REDSKINS players, coaches and staff are hereby congratulated for winning SUPER BOWl, XXVI and for their many and continuing contributions to the betterment of our community. Coach Breaux entertained some questions from the public. COUNClLMEMBER COMME1VTS Mr. Webb had no comment. Mr. Lovin stated that he toured the new Rust Library. They are able to display a lot more books then Minutes of January 28, 1992 in the Thomas Balch Library. Dedication is scheduled for February 8, 1992. He and Mr. Clem attended the Listening Session on Saturday. Three citizens were present. Mr. Clem thanked Mr. Mason and staff for installing the light in the alleyway. He asked that Mr. Mason install a speed limit traffic sign in the alley way. Mr. Kimball commented on the Super Bowl. Ms. Bange congratulated Bill Neville and the Greenways Trail Committee for the draft plan. MANAGER'REPORT Mr. Brown noted that Council did receive a copy of the written Activity Report. He stated that the EAC endorsed the idea of considering withholding pick up of grass clippings. On February 19, from 2:00 p.m. until 4:00 p.m., Jim Poland with Virginia Power will be conducting a meeting to explain the master plan development for Virginia Power. LEGISLATION 9. (a) Mr. Brown summarized the proposed ordinance MOTION On motion of Mr. Clem, seconded by Mr. Webb, the following ordinance was proposed and unanimously adopted. 92-0-3 - ORDINANCE - AMENDING CHAPTER 5.1 OF THE TOWN CODE TO ESTABLISH REGULATIONS AND PROCEDURES FOR THE GRANT OF ADDITIONAL CABLE TELEVISION FRANCHISES WHEREAS, in October of 1980 the Town Council of Leesburg, Virginia (the "Town Council") awarded-a non-exclusive 15-year cable television franchise to serve the Town of Leesburg (the "Town") after full public proceedings affording due process, having approved the legal, character, financial, technical and other qualifications of the proposed Franchisee and the adequacy and feasibility of the Franchisee's construction arrangements, consistent with Chapter 5.1 of the Town Code, and after having determined that the public interest of the Town and its residents would be served by the award of the Franchise; and WHEREAS, pursuant to Section 15.1-23.1 of the Code of Virginia, the Town is empowered to award additional licenses, franchises or certificates of public convenience authorizing the operation of additional cable television systems upon satisfaction of the standards set forth therein; and WHEREAS, the Town Council understands that other applicants may come forward with proposals to provide .cable television facilities which duplicate all or a portion of the facilities provided by the existing Franchisee; and WHEREAS, it is necessary for the Town Council to adopt standards and procedures to evaluate any such applications and to assess the effect of additional cable television systems upon the overall level of cable service in the Town and upon the welfare of the citizens of the Town; and WHEREAS, it is necessary for the Town Council to further the substantial public purposes of controlling the use of public rights-of-way, avoiding, whenever possible, the unwarranted disruption and burdening of public and private property; ensuring maximum availability of cable se~ices; guaranteeing the availability of channel capacity for use by unaffiliated third parties for both commercial and noncommercial purposes in a manner consistent with the right of cable operators to exercise their traditional editorial functions; controlling the economic scarcity of cable services so as to ensure the continued availability of cable services to the greatest number of residents, of the Town at the lowest prices economically practical; and ensuring the highest quality and best services to the subscribing public; and WHEREAS, the adoption by ordinance of the following rules and regulations is necessa~y in the general interest of the public and shall promote the public convenience of the citizens of the Town; and WHEREAS, the Cable Television Advisory Commission on November 18, 1991, unanimously recommended approval of the ordinance amendment; and WHEREAS, the Town Council held a public heating on December 10, 1991. THEREFORE, ORDAINED by the Council of the Town of Leesburg in Virginia as follows: SECTION I. Chapter 5.1 of the Town Code is hereby amended to read as follows: ARTICLE I. IN GENERAL Minutes of January 28, 1992 Sec. 5.1-1. Short title. This chapter shall be known and may be cited as the "Cable Television Regulations" of the town. Sec. 5.1-2. Purpose. The purpose of this chapter is to provide for regulation and control of any cable television system operating in the town. Sec. 5.1-3. Definitions. Where used within this chapter, unless the context clearly indicates otherwise, the following words and terms shall have the meaning indicated below: Applicant means any applicant for a Franchise pursuant to this Chapter. Cable television system or systems shall mean "..ny facH~.W ..a.;.~. ;o operated + ....w~.~ e~,. ~,.~ ....... ;~ ~+~;~+~ ~.+~ ~ +~ ..... ; .... ~ .... ~ ~ .... n;.~ any faciliW consistinE o~ a set o~ dosed transmission paths and associated si~ Eenera~on~ reception and control equipmen~ tha~ is desired to pm~de ~ble se~ce which includes ~deo pro~amminE and which is prodded ~o multiple subsc6bers ~thin a communiW, except tha~ such definition sh~J not incJude (~) a system that setwes ~ewe~ than ~en~ (20) subscMbe~s, (ii) a ~aci]iW that se~es only to ~et~nsmit the tele~sion siEnals o~ one o~ more tele~sion b~oad~s~ s~tions, (iii) a facili~ that se~es on]v subscMbers in one or more mui~pJe unit dwellinKs under common ownership, control, o~ manaEemen~ unJess such ~acili~ or facilities use any public M~ht-of-way, (iv) a ~aci]i~ o~ a common carMe~ which is subject, in whole or in pa~, to ~he p~o~sions of Title H o~ the Communi~fions Act o~ ]9341 47 U.S.C. { ~0] et seq., except that such ~aci]iW shall be considered a ~ble system to the e~ent such ~aci]iW is used in the t~ansmission of ~deo p~o~amminE directly to subscMbers, o~ (v) any facilities of any electMc utiliW used sotely for opera, nE its electric systems. Cablecasting shall mean originating programming over a cable television system. Converter shall mean an electronic device, which converts signals to a frequency not susceptible to interference within the television receiver of a subscriber and, by an appropriate channel selector, also permits a subscriber to view all signals delivered at designated dial locations. Earth station shall mean the electronic equipment and hardware necessary to receive signals from satellites. FCC shall mean the Federal Communications Commission or its successor. Franchise shall mean an authorization granted pursuant to this chapter and applicable state law in terms of a privilege, permit and license to construct, operate and maintain a cable television system within the town. Any such authorization, in whatever form granted, shall not include any license or permit required for the privilege of transacting and carrying on a business within the town as required by other ordinances and laws of the town. Franchise territory shall mean all the area within the corporate limits of the town and any future extension thereof by annexation. Franchisee shall mean the person, firm or corporation granted a franchise by the town under the provisions of this chapter and the lawful successor, transferee or assignee of said person, firm or corporation. Local origination channel shall mean a channel which is programmed by the cable system and subject to its exclusive control. Monitoring shall mean observing a one-way communications signal, or the absence of a signal, whether the signal is observed by visual or electronic means for any purpose whatsoever. Pay television shall mean the delivery over the cable television system of video signals to subscribers for a fee or charge, over and above the charge for basic service, on a per program, per ~channel or other subscription basis. Property of franchisee shall mean all property owned, installed or used within the town by a franchisee in the conduct of a cable television system business under the authority of a franchise granted pursuant to this chapter. Signals, whether distant, local radio, television or kinds of channels such as class I, II, III and IV, shall be given the meanings found in applicable FCC rules and regulations. Minutes of January 28, 1992 Subscriber shall mean any person or entity receiving for any purpose any service of the cable television system including, but not limited to, the conventional cable television system service or retransmission of television broadcast, radio signals, the franchisee's original cablecasting and the local government, education and public access channels and other services including, but not limited to, leasing of channels, data and facsimile transmission, pay television and police, fire and similar public service communication. Town manager shall mean the manager of the town or an official authorized by him to administer the terms, provisions and regulations of this chapter. ARTICLE II. GRANT; TERM; NONEXCLUSIVITY OF FRANCHISE Sec. 5.1-4. Franchise necessary, to operate. It shall be unlawful to commence or engage in the construction, operation or maintenance of a cable television system without a Franchise issued by the Town. Any person violating this Section shall be punished by a fine of not more than five hundred dollars ($500.00) per day or by imprisonment for not more than twelve (12) months, or both. This section shall not be deemed to require the grant of a Franchise to any particular person or entity or to prohibit the Town from restricting the number of Franchisees should it determine such a restriction would be in the public interest. Sec. 5.1-5. Length of franchise. The initial term of any franchise granted under this chapter shall be for a period of no longer than 15 years. An extension of the initial franchise term may be granted in accordance with Section 5.1-~ 36 of this chapter. Sec. 5.1-6. Franchise not exclusive. The right to use and occupy town streets for a cable television system shall not be exclusive and the town reserves the right to grant a similar use of said streets to any person, company, corporation or other entity at any time during the initial or subsequent period of any cable franchise. Sec. 5.1-7. Terms of additional franchise. Any additional Franchise granted under this Chapter shall not authorize an additional Franchisee to operate on terms or conditions more favorable or less burdensome to such new Franchisee than those applied to any existing Franchisee in its Franchise Agreement. ARTICLE III. APPLICATION PROCEDURES AND CONTENTS Sec. 5.1-8. Notification of Existing Franchisee. In the event an application is filed proposing cable television service to areas already served in whole or in part by an existing Franchisee, a copy of such application shall be served by the Applicant, by registered or certified mail, upon that Franchisee. Proof that a copy of the application has been served upon any current Franchisee shall be provided to the Town. No application for an overlapping Franchise shall be processed until such proof of service has been furnished to the Town. Sec. 5.1-9. Application Fee. (a) Each application for a Franchise under this Chapter shall be accompanied by a filing fee in the amount of $5,000.00 which shall be payable to the Town of Leesburg, Virginia. All such fees shall be credited against the general fund of the Town to ensure the Town is reimbursed for all costs incurred in the application process. Once the Town has been fully reimbursed for all such costs, any unused application fees shall be refunded to the Applicant(s). (b) In addition to the fee set forth in paragraph (a) above, each Applicant shall be jointly and severally obligated to reimburse the Town for its full cost incurred in the application process. Such costs shall include, without limitation, internal staff and employee time and expenses, and the fees and expenses of any consultants, experts, accountants, attorneys or other person(s) utilized by the Town to assist it in its evaluation of the applications or in connection with the application process. Said costs shall be paid by each Applicant as they are incurred by the Town. An Applicant's failure to make such reimbursement upon demand of the Town shall be grounds for dismissal of its application. Sec. 5.1-10. Scope and Contents. All applications shall be filed in conformance with and subiect to the provisions of this Chapter. This Chapter shall not be construed to prescribe the detail in which the Applicant shall make its presentation nor in any way to restrict the scope of its presentation. Applicants have a wide latitude to formulate their proposals in an innovative fashion. Applicants are encouraged to propose a modern, Minutes of January 28, 1992 efficient, cost-effective system which will facilitate quality maintenance practices, deliver a variety of marketable services, and provide the flexibility needed to adjust the chan~ing technoloK~ and new developments in the industry. However, at a minimum, the following matters must be carefully covered and in such detail that the Town Council can make fully informed judgments concerning the adequacy of the proposal and the Applicant's legal, character, financial, technical and other qualifications to construct and operate a cable television system in the Town. Sec. 5.1-11. Franchise Area. The Applicant shall submit sufficiently detailed information to allow the Town to determine whether the size of the requested Franchise is in the public interest, considering the size of the area requested relative to the technical, fiscal and legal qualifications of the Applicant; the potential for development in the near future for the area requested; and other considerations. Sec. 5.1-12. Legal Qualifications. (a) Identification of Applicant. All applications shall contain the name, address and telephone number of the Applicant and of the principal or the representative to whom inquiries should be made. (b) Ownership Information. (1) The application shall identify its officers and directors and all persons or other entities having any ownership interest whatsoever in the Applicant. voting or non-voting (e.g., general and limited partners, voting and non-voting shareholders), legal, beneficial, or equitable, direct or indirect. For each such person or entity identified, the application shall provide complete information as to their names, addresses, and amount and .type of interest, and if an enti .ty, the same ownership information required of the Applicant. (2) For each person and entity listed in paragraph (1) above, the application shall provide the following information: (A) Whether their ownership or holding was acquired at the same per-share- cost as other owners, and whether services or other in-kind contributions were included as a basis for acquiring their ownership. (B) All of their ownership interests in other communications media, including cable television operators, whether franchised or unfranchised (e.g., SMATV), television stations, radio stations, newspapers, and telephone services, and whether such media serve or have significant circulation in the Town. (C) Whether they are local investors (investors whose permanent residence is in or around the Town), and if so what role they will have in the decision(s) of Applicant relative to operational and programming policies and procedures. (D) Whether any buy-out agreement exists, whether written or verbal, giving other stockholders, persons or entities the right to acquire the interest Of local or other equity holders in the future. If so, the Applicant shall submit copies of all such agreements. (E) The Applicant shall also submit copies of all partnership, management and joint venture agreements which involve the participation of local ownership, as herein defined. (3) The application shall disclose in detail the extent to which any town employee or town official would have a "personal interest" in the applicant, the franchise, or the award of the franchise to the applicant. For purposes of this section, the term personal interest shall have the same meaning as set forth in Sec. 2.1-639.2 of the Virginia Code. (4) The application shall also identify the form under which the Applicant does business and proof that the Applicant has registered to conduct business in the State of Virginia and any other political subdivision where business is or will be conducted. (c) Affiliates, Subscribers and Parent Companies. The application shall provide full identification and ownership details, as in paragraph (b)(1) above, for all affiliates, partners, subsidiaries and parent entities of Applicant. (d) Management Information. The application shall provide information concerning the management structure of the Applicant, including all levels of management of multiple system operators and the relationship of the proposed cable operator to its affiliates. Sec. 5.1-13. Character Qualifications. (a) Litigation and Proceedings. Applicant shall identi ,fy fully and supply records applicable to any involvement of the Applica~t. any of its managers, or any person or enti .ty identified pursuant Minutes of January 28, 1992 to Sec. 5.1-12(b) or (c) of this Chapter, as a party, in any past or pending criminal proceeding, or any past or pending civil proceeding involving any of the followin~ litigation involving cable television operations (franchised or unfranchised e.g., SMATV), unfair or anticompetitive business practices, antitrust violations (state or federal) including instances in which consent decrees were entered, violations of securities laws (state or federal), false/misleading advertising, violations of FCC regulations, racketeer influenced and corrupt organizations, or contraband forfeitures. The application shall also supply detailed information concerning whether the Applicant or any such person, entity or manager has ever been subject to a penalty, civil or criminal, for failure to comply with any cable television franchise, has ever been involved in any legal action involving any franchising authority, or has ever had any business license of any type (defined to include FCC licenses, alcoholic beverage and restaurant licenses, etc.) revoked or suspended, or had renewal denied. (b) Other Cable System Operations. The application shall provide the following information as to other cable systems or multichannel video delive .ry systems (including SMATV) presently or formerly owned by or affiliated with the Applicant" any of its managers, or any person or entity identified pursuant to Sec. 5.1-12(b) or (c) of this Chapter. With respect to all cable systems presently owned and those cable systems disposed of within the preceding five years, the applicant shall provide information as to the location of the system, miles of plant, percent completed, density of area served, number of homes passed, number of subscribers, channel capacity, services offered, rates charged, market penetration, date franchise awarded, date acquired and date disposed of, and public officials or employees who may be contacted for information regarding each such system. With respect to formerly owned cable systems disposed of earlier than the preceding five years and for all multichannel video delivery systems (including SMATV), the application shall provide information as to the location of the system, number of homes passed, number of subscribers, channel capacity, date constructed or acquired and date disposed of. Sec. 5.1-14. Financial Qualifications and Pro Forma Financial Statements. (a) Financial Plan. Each application shall describe in detail the financing plan for the construction and initial operation of the proposed cable system and provide proof of financial capability. Each application shall include documentation that demonstrates and assures the Applicant's financial viability, such as letters of commitment from financial institutions which demonstrate the availability of sufficient funds to complete construction of the proposed system. Proof of financial capability shall include: (1) A showing of the sources, method (e.g., cash, cash plus credit, services, etc.) and amount of equity capital. If the equity contribution is borrowed, a description of the collateral and terms of the loan. All equity commitments must be evidenced by appropriate documentation. (2) A showing of the sources, amount and terms of debt capital, both prima .ry and secondary, accompanied by appropriate documentation. If funding is to be provided by any parent or affiliated entity, its source of funding must also be documented. (3) If Applicant is a multiple system operator, it shall give evidence of the portion of the company's sources of financing which is uncommitted and will be applied to the proposed construction. (b) Pro Forrna Financial Statements. Pro forma financial statements shall be required for a minimum of ten (10) years beginning with the date the franchise is accepted. Such pro formas shall include income statements, sources and uses of funds, loan amortization information, anticipated capital expenditures, construction costs, depreciation schedules, and operating expenses, along with detailed assumptions on which the projections are based. The information and assumptions shall include financial aspects of miles of plant to be built and .type of installation (aerial/underground), building schedule, headends, other capital investments and planned coverage, debt/equity ratio~ debt service costs, depreciation, operating costs in detail, assumed market penetration rate, expected internal rate of return, discussion of fixed and variable costs, and such other relevant information as the Town or its officers, employees, agents or consultants deem appropriate. (c) If the applicant is an existing entity, it shall submit audited financial statements for the last two (2) years or, if existing for less than two (2) years, for such period of existence. If capital is to be raised or supplied by a parent company, Applicant shall provide an audited financial statement for the parent company. Financial statements prepared by a certified public accountant according to generally accepted accounting standards and in conformity with generally accepted accounting principles (GAAP,) may be submitted in lieu of audited financial statements if the applicant certifies that it has not undertaken an audit of its financial statements and operations during the last two years. Sec. 5.1-15. Technical Qualifications. The application shall describe any qualifications and cable system experience of Applicant, including, but not limited to, the ownership, construction, management, and operation of other cable communications .systems specifying the manner in which Applicant participated; available personnel with technical qualifications and experience committed to the proposed system design, construction and operation~ construction contractors to be used, if any~ and technical consultants, if any. The application shall indicate the .type of participation and the qualifications of persons, consultants, contractors, etc. whose services will be utilized. Minutes of January 28, 1992 Sec. 5.1-16. System Construction Plan. The Applicant shall submit to the office of the Town Manager a detailed construction plan, supported by detailed maps indicating areas of construction and pro. iected timeframes in six (6) month increments. The construction plan shall comply with all requirements set out in Chapter 5.1 and shall reasonably delineate the portions of the system that will be using aerial cable, the portions of the system that will be utilizing underground cable and the portions of the system, if any, that will be using wireless technology. The Applicant shall demonstrate that sufficient pole and conduit space exists for the placement of its facilities and shall provide a copy of any agreement between the Applicant and the utility providing for the use of any utility facilities. Sec. 5.1-17. System Design--Layout and Equipment. The Applicant shall provide a comprehensive, but concise, description of the proposed system design. Such description shall include the system configuration, the manufacturer and model of each .type of equipment used, a spectrum utilization chart, and a complete list of all services, video or otherwise, which will be offered. The proposed system design shall comply with all requirements set out in Chapter 5.1. Sec. 5.1-18. Customer Services. The Applicant shall set forth detailed plans for system maintenance, customer complaints, billin~ procedures and inquiries, record keeping, subscriber privacy, policies related to outages, and personnel. Sec. 5.1-19. Impact of an Additional Grantee. To assist the Town in making its evaluation of the impact of additional Franchisees~ the Applicant shall provide detailed information relating to: (a) the economic ,justification, if any, for issuing a Franchise to a subsequent Applicant~ (b) the impact of the proposed Franchise on private property, rights] (c) the impact of the proposed Franchise on public convenience] (d) the public need for such Franchise~ (e) the potential benefit of such Franchise~ (f) the per-strand-mile densities of the areas the Applicant proposes to serve and extent to which the Applicant intends to utilize bulk contracts] and (g) a demonstration that there is sufficient usable space available on each pole to be utilized by Applicant, or in any trenches or conduits where underground facilities are proposed. Costs for rearrangement of facilities or replacement of poles shall be reasonably detailed. ARTICLE IV. REVIEW OF APPLICATION Sec. 5.1-20. Initial Review and Request for Additional Applications. Upon the submission of an application for a franchise, the Town Manager shall review the application to ensure that all information provided is correct and whether the Applicant has the financial, technical and managerial background and resources to provide the proposed services. If necessary, the Town Manager may request an Applicant to provide additional information. If the application requests a franchise term greater than five years, the Town Manager shall also promptly notify the Town Clerk to advertise receipt of the application and the advertisement shall also invite the submission of additional applicants for a Franchise within a period of thirty (30) days. Should additional application(s) be submitted, they shall be subject to all of the requirements of Chapter 5.1, as amended, including the opportunity for public comment provided by Sec. 5.1-22(a). However, no additional requests for applications shall be required. If additional application(s) are submitted within the prescribed time period, all of the applications shall be considered together at the public hearing required by Sec. 5.1-22(a). Sec. 5.1-21. Completeness of Application. The Town Manager shall accept, reject as incomplete or deficient, or accept with conditions, all applications. Within sixty (60) days of receipt of any application, the Town Manager shall noti~ Applicant as to any facial deficiencies. Sec. 5.1-22. Public Hearing. (a) Upon acceptance of any application or, if accepted with conditions, upon the conditions being met, the Town Manager .shall ngti(y the Town Clerk to advertise the public hearing at which the Town Council will consider the application(s). Existing Franchisees and members of the public will be given an opportunity to submit relevant comments and the advertisement shall provide for at least a thirty Minutes of January 28, 1992 (30) day period for the submission of such material. The public hearing shall commence after acceptance of the application by the Town Manager, or if accepted with conditions, after all conditions are met, but in no event sooner than thirty (30) days following the date on which written comments are due. Sec. 5.1-23. Summary Report. The Town Manager~ in consultation with the Cable Television Adviso .fy Commission, shall issue, or cause to be issued, a report summarizing each application which shall contain a recommendation to the Town Council as to approval, denial, or approval with conditions. The Town Council may obtain a consultant to perform studies and reviews to assist the Town Manager. In the event an application is filed proposing a cable service area which overlaps, in whole or in part~ an existing Franchisee's service area, an independent consultant's report may be obtained to address the factors set forth in Article V of this Chapter, as amended. The Applicant(s) shall be responsible for any cost thereof as set forth in Section 5.1-9 herein. ARTICLE V. CONSIDERATION BY TOWN COUNCIL Sec. 5.1-24. General Evaluation Criteria. Evaluation of any franchise proposals will primarily include, but will not be limited to~ the following:. (a) Legal capacity and character. (1) Whether the Applicant is not precluded from cable system ownership by any FCC rule or federal or state law. (2) Whether the Applicant has not been convicted of any felonies or serious misdemeanors or found liable in certain civil actions as specified in Sec. 5.1-13(a) hereof. (3) Whether the Applicant has made full disclosure of any campaign contributions which it has made to any Town official involved in the franchise procedure and of any interest in the Applicant which may be owned or controlled by such an official. (4) Identification of the persons who will be owning and/or controlling the proposed Franchise. (b) Financial capability. (1) Whether there is sufficient capital to develop the cable system. (2) The reasonableness of the Applicant's financial plan. (c) Construction design and timing. (1) The general quality and sophistication of the cable facilities plan. (2) Applicant's construction schedule. (3) Applicant's description of the service area and whether it plans to provide cable service to all housing units in the franchise territory. (d) Scope (1) (2) (3) increases. and quality of cable television service. Provisions for pay television and satellite delivered programming. Plans for realistic but community-responsive local origination programming. Reasonableness of proposed rates and company policies for implementing future rate (4) Alternative cable service levels and the time frame for their delivery. (5) Innovations to enhance high penetration rates. (6) Innovative application of educational access programming. (7) Procedures for handling subscriber complaints. (8) Measures to ensure protection of subscriber privacy. (e) Projected management and staffing capacity. (f) Previous cable system operations experience. (1) Evaluation of cable operations in other communities. Minutes of January 28, 1992 (2) Ability to meet deadlines and provide services on schedule in other communities. Sec. 5.1-25. Evaluation Criteria-Desirability of an Additional Grantee. In the event an application is filed proposing a Franchise area which overlaps, in whole or in part, an existing Franchisee's service area, the Town Council, in considering such application, shall, in addition to the factors set forth in Sec. 5.1-17 of this Chapter, take into account: (a) whether the public welfare will be enhanced by the grant of an additional Franchise~ (b) economic considerations, including the long term viability of multiple Franchisees to ensure the availability of high-quali .ty cable service and other public benefits to the greatest number of Town residents at the lowest economically feasible price~ (c) the impact upon and possible disruption of public and private property., rights by multiple Franchisees] (d) the impact on the public convenience, including the ability of the Town Council to regulate multiple Franchisees; (e) the public need and potential benefit; (f) the applicant's plan for constructing its aerial and underground facilities; (g) the impact on the financial and operating capability of existing Franchisees; (h) the loss of uniformi .tv of stance as may be provided by a single Franchisee] and (i) whether access to cable service might be denied to certain potential subscribers based on the income of residents of a particular area. Sec. 5.1-26. Additional Information. The Town may continue or postpone the public hearing as it deems appropriate. It may request additional information of the Applicant, existing Franchisees or officers and employees of the Town. The Applicant or existing Franchisees may submit studies, reports or opinions addressing the need for an additional Franchisee, the economic effect of an additional Franchisee, or other appropriate matters. Sec. 5.1-27. Action by Town Council. Upon consideration of all relevant information and completion of the public hearing process~ the Town Council may re. iect the application, or award a Franchise with or without conditions. Any such award of a Franchise shall require the affirmative vote of a majori .ty of all members elected to the Town Council. ARTICLE III VI. TRANSFER OR ASSIGNMENT Sec. 5.1-~ 2--8. Certain transfers or assignments prohibited. No transfer or assignment of a franchise shall be approved or considered by the town council within two years of the effective date of the initial term of a franchise. Sec. 5.1-8 2__~9. Transfer or assignments. (a) Except as otherwise provided, no franchise granted pursuant to this chapter shall be assigned or transferred, either in whole or in part, or leased, sublet or mortgaged in any manner, nor shall title thereto, either legal or equitable, or any right, interest or property therein, pass to or vest in any person, either by the act of the company or by operation of law without the consent of the town council, which consent shall not unreasonably be withheld. The granting, giving or waiving of any one or more of such consents shall not render unnecessary any subsequent consent or consents. (b) The town specifically reserves the right, in determining whether or not to authorize a transfer under this section, to consider the entire price and/or consideration to be paid by any proposed transferee, including the allocation of value of the franchise as it actually or potentially affects the rates to subscribers at that time or in the future. The town may also take into account the extent to which a proposed transfer may potentially cause, require or justify, in whole or in part, a rate increase or request for rate increase. The town is specifically authorized to deny, restrict or condition its authorization of any transfer on the grounds mentioned hereinabove or on any related grounds under which the town may at its sole option determine. (c) The franchisee may pledge, mortgage, hypothecate or otherwise transfer, as may be required, an interest in the cable television system to any lender in order to obtain financing for the cable television system. Such transfer, pledge, mortgage or hypothecation may, if required by the lender, include the authority to sell the cable television system, subject to consent of the town council, upon mortgage default by the franchisee. Such approval shall not be unreasonably withheld. In this event, any such sale approved will require the new owner to comply with all terms and conditions of this Minutes of January 28, 1992 chapter as well as the original franchise agreement and franchise ordinance. Sec. 5.1~9 30. Sale or transfer of stock or other ownership. One or more sales or transfers of stock or other ownership, by operation of law or otherwise, or creation of new stock, by which an aggregate of more than ten percent of franchise stock or other form of interest shall be vested in a party or parties who are nonstockholders or nonowners as of the effective date of the franchise, shall be an assignment within the meaning of this article. For the purpose of this section, stock ownership shall be determined in accordance with the principles set forth in Section 5.4-4 of the Internal Revenue Code of 1954 as the same existed on August 16, 1954. Sec. 5.140 3~1. Notice of transfer or assignment. A franchisee shall promptly notify the town manager of any proposed change in, or transfer of, or acquisition by any other party of control of the franchise. For the purpose of determining whether it shall consent to such change, transfer or acquisition of control, the town may inquire into the qualifications of the prospective controlling party, and the franchisee shall assist the town in any such inquiry. A transfer fee in the amount of $500.00 shall be paid to the town by the prospective assignee or purchaser at the time of application. In the event that the town council adopts a resolution denying its consent and such change, transfer or acquisition of control has been effected, the town council may cancel the franchise unless control of the franchise is restored within 30 days to its status prior to the change or to a status acceptable to the town council. Any mortgage, pledge or lease shall be subject and subordinate to the rights of the town under this chapter or other applicable law. ARTICLE 1~ VII. TERMINATION AND RENEWAL Sec. 5.1-1-1, 3_~2. Revocation. The town council reserves the right to revoke the franchise, and all rights and privileges pertaining thereto, in the event the franchisee violates any of the material provisions of this chapter or is found to have practiced any fraud or deceit upon the town or the public; provided, however, that complaints by the public shall be considered pursuant to the provisions of section 5.1-44 64 of this chapter. Prior to any revocation proceedings under this section, the franchisee shall be given 60 days' notice in writing by certified mall, which notice shall state in detail the grounds upon which the town seeks revocation. If the material violation has not been remedied to the satisfaction of the town, the town council shall have the right to revoke said franchise, and all rights, privileges and license derived therefrom, forthwith by resolution. At the time any franchise has been so revoked, the town council may require the former franchisee to remove all wires, cables and all other equipment associated with the cable television franchise at its expense. Sec. 5.1--1-2 3__~3. Foreclosure. Upon notice of the prospective foreclosure or other judicial sale of all or a substantial pal~c of the system or upon the termination of any lease covering all or a substantial part of the system, the franchisee shall notify the town manager of such fact, and such notification shall be treated as a notification that a change in control of the franchisee has taken place, and the provisions of A~cicle II of this chapter shall apply. Sec. 5.1-4~3 34. Reserved. Sec. 5.1-44 3_~5. Expiration. Twelve months preceding the expiration of the initial term of a franchise granted pursuant to this chapter, the town shall have the right, at its election, to: (a) Renew or extend the franchise as provided in section 5.1-1~ 36; (b) Invite new applicants for the franchise; or (c) Purchase the system. Sec. 5.1-1~ 3__~6. Renewal or extension. A franchise may be renewed or extended at the sole option of the town for a period of five years. Renewal consideration shall include but not be limited to the reports prepared throughout the life of the franchise reviewing the system's technical performance, the development of cable se~wices, the cost of said services and a comparison of similar cable systems in other communities. The town retains the right to modify the terms of a franchise within the then applicable provisions of state law as a condition of any such renewal or extension. Sec. 5.140 3_.~7. Town purchase of system upon revocation or expiration. In the event that the town revokes a franchise pursuant to appropriate provisions of this chapter, or upon the expiration of a franchise, the town shall have the right to purchase the cable system at a price not to exceed its then fair market value. The fair market value shall be determined by a independent accounting firm, selected by the franchisee and the town, in accordance with generally Minutes of January 28, 1992 accepted appraisal and accounting principles, except that any value attributable to the actual franchise right itself or to good will of the cable system shall be specifically excluded. The cost of such appraisal shall be shared equally by the franchisee and the town. Sec. 5.14~ 38. Continuity of service mandatory. A franchisee shall be required to provide continuous service to all subscribers in return for payment of the established fee. If a franchisee overbuilds, rebuilds, modifies, sells the system or the town revokes, fails to renew a franchise or the franchise becomes void, a franchisee is required as part of its franchise to continue to operate the system until an orderly and lawful change of operation is effectuated. Under no circumstances shall this period of operation exceed six months from the date of occurrence of any of the above events. In the event a franchisee falls to operate the system for five consecutive days without prior approval of the town manager or the franchisee fails to continue operation on the occurrence of any of the events given in this section, the town or its agent shall have the right to operate .the system until such time that a new operator is selected. If the town is required to fulfill this obligation for the franchisee, the franchisee shall reimburse the town for any costs or damages that result from the franchisee's failure to operate the system as required. Sec. 5.1-t~ 39. Eminent domain. Nothing herein shall be deemed or construed to impair or affect, in any way or to any extent, the right of the town to acquire the property of the franchisee through the exercise of the right of eminent domain and nothing herein contained shall be construed to contract away or to modify or abridge, either for a term or in perpetuity, the town's right of eminent domain with respect to any public utility or franchise. ARTICLE ~ VIII. FRANCHISE TERRITORY; CONSTRUCTION TIMETABLE; EXTENSION OF SERVICE Sec. 5.1-14~ 40. Franchise territory. (a) The franchisee shall construct and operate at a minimum the initial cable television system so as to provide service through all parts of the franchise territory having a density of at least 60 residential dwelling units per mile of plant or at the density submitted in the franchisee's cable television application, whichever is lower. The initial cable television system will be considered as all of the system included on the map submitted with the franchisee's application. (b) Extensions to the initial system and any extensions in any annexed areas shall be subject to the same density standards. At a minimum, the franchisee shall construct one mile of cable plant per year upon receipt of a notice to proceed from the manager. Notwithstanding the above, the franchisee shall not be required to commence construction in these areas until the initial cable television system is constructed. Sec. 5.1-~} 41.__. Construction timetable. (a) The franchisee shall construct the necessary facilities to permit basic service reception capability, including construction of 20 percent of the cable distribution plant, within 18 months of the date of the franchise agreement. Within 90 days of the date of the franchise agreement, the franchisee shall submit a construction timetable detailing the location and geographic sequence of the construction of the head-end and distribution plant leading to basic service and special service capability for every dwelling unit within the town, subject to aforementioned density standards. (b) Within four years of the date of the franchise agreement, the franchisee shall have completely installed and have under operation a cable television system providing basic service and special service capability to all dwelling units within the franchise territory, subject to density limitations provided herein. Capability shall be defined as the providing of basic services or special services to subscribers within 60 days of an application for either or both services, including satellite distributed programs. (c) Failure on the part of a franchisee to meet any of the requirements of this section shall be deemed a material violation of this chapter and subject franchisee to revocation procedures established in section 5.1--1~ 37 herein, unless said time is extended by the town council. Such extensions may or may not relieve the franchisee of the payment of penalties set out in section 5.1-49 68 at the sole option of the town council. (d) A franchisee shall register with the FCC and comply with all other filing requirements of federal and sate law within 60 days of its acceptance of the franchise. Sec. 5.1-~ 42. Interconnection. A franchisee may interconnect the system with any or ail other cable television systems in the area if otherwise lawful and provided such other system agrees to the interconnection. Interconnection of systems may be done by direct cable connection, microwave link, satellite or other appropriate method. (a) Upon receiving the directive of the town to interconnect, the franchisee shall immediately Minutes of January 28, 1992 initiate negotiations with the other affected cable television system or systems in order that costs may be shared equally for both construction and operation of the interconnection link. Co) The town council may grant reasonable extensions of time to interconnect or rescind its request to interconnect upon petitions by the franchisee to the town council. The town council shall grant the request if it finds that the franchisee has negotiated in good faith and the cost of interconnection would cause an unreasonable increase in subscriber rates. (c) No interconnection shall take place without prior approval of the town manager. A franchisee, in seeking approval for interconnection, shall demonstrate that all signals to be interconnected will comply with FCC technical standards for all classes of signals and will result in a low level of distortion. (d) The franchisee shall cooperate with any interconnection corporation, regional interconnection authority, state or federal regulatory agency which may be hereafter established for the purpose of regulating, facilitation, financing or otherwise providing for the interconnection of cable television systems beyond the boundaries of the town. ARTICLE ~I I___~ SERVICES sec. 5.1.~2 43. Basic subscriber service. (a) At the time housedrop connections are available, the franchisee shall provide all subscribers who request basic service with the minimum television signals established in section 5.1-~ 49 of this chapter and one local origination channel designated for public access on a first come, nondiscriminatory basis. The public access channel will be available to public, educational, governmental and any other users. (b) The franchisee at its expanse shall furnish upon request one connection for each public school, county and municipal (town) office which is within the franchise territory and not more than 250 feet from the franchisee's existing service facilities. Sec. 5.1-~3 4--4. Special services. At such time as subscriber service is first available, the franchisee, in addition to basic sm~ice, shall offer special services available at higher rates, which shall include one or more channels offering pay TV and additional commercial satellite delivered channels. Sec. 5.1-2,4 4--5. Virginia Public Telecommunications Council. A franchisee shall also comply with all current and future requirements of the Virginia Public Telecommunications Council. Sec. 5.1-~,$ 46. Reserved. Sec. 5.1~26 4__~7. Local origination programming. Within 24 months from the date of a franchise agreement, a franchisee shall provide at its expense facilities and equipment necessary to originate local programming, providing one local origination channel for that purpose, m~^ ~ .... ~; .... ~ 2 ~ *~J~'~; ...... ~"' v.~.th 2 min;-mum of cm~mc;.!. Upon obtaining a minimum of 1,000 subscribers, a Franchisee shall cablecast a minimum of two hours of non-automated, locally produced programming within each 24-hour period. Upon obtaining a minimum of 1,500 subscribers, a Franchisee shall cablecast a minimum of three hours of non- automated, locally produced programming within each 24-hour period. Upon obtaininR a minimum of 3,000 subscribers, a Franchisee shall cablecast a minimum of four hours of non-automated, locally produced programming during each 24-hour period. Sec. 5.1-I1-7 4~8. Studio facilities. A franchisee shall provide a full color studio located within a five-mile radius of the town. The studio will be available to access cablecasters along with the services of technical and production staff to be provided by the franchisee. A franchisee shall also provide mobile color equipment for its own use and that of local access users. The franchisee may lease a studio and facilities from others to comply with this section. Franchise applicants will be evaluated on the basis of plans and rate schedules for production facilities which are most in the public interest. Rate schedules may include different rates for various classes of users. ARTICLE V!! _X. DESIGN AND CONSTRUCTION STANDARDS Sec. 5.1-~8 4--9. Channel capacity. A franchisee shall construct a cable television system that shall have not less than 24 video channels or an equivalent amount of band width capacity, including any local origination franchise- Minutes of January 28, 1992 operated station which may also serve as the public access channel required by section 5.1-22 43 of this chapter. Sec. 5.1.119 50. Overhead and underground construction. Construction of trunk, feeder and drop cable may be constructed overhead where utility poles now exist and electric or telephone lines or both are now overhead but, where no overhead poles exist, all trunk, feeder and drop cable shall be constructed underground. Any installation above ground shall be considered as a special exception to section 13-39 of the town code. Where present overhead utility poles, electric lines and telephone lines are moved from overhead to underground placement, all cable television distribution system cables located above ground within the affected area shall be similarly moved and located underground at the same time and the cost of the movement of the cable shall be solely the obligation of the franchisee. Sec. 5.1q~} 51. Two-way capacity. The franchisee shall install a cable television system with a technical capacity for nonvoice return communications. The franchisee's development of class IV uses shall coincide with the schedule submitted in the franchise application. Sec. 5.1-~ 52. Emergency requirements. The franchisee shall design and construct the cable television system to provide for an audio override of all channels simultaneously, except those involved in retransmission of television broadcast programming, in case of public emergencies. Sec. 5.1-33 53. Construction requirements and safety standards. (a) Methods of construction, installation and maintenance of the town's cable television system shall comply with the National Electric Code 1975 (ANSI CI-1975) to the extent that such code is consistent with local law affecting the construction, installation and maintenance of electric supply and communications lines. (b) Any tower constructed for use in the cable television system shall comply with the standards contained in Structural Standards for Steel Antenna Towers and Antenna Supporting Structures, EIA Standards RS-222-A, as published by the Engineering Department of the Electronic Industries Association, 2001 Eye Street, N.W., Washington, D.C. 20006. (c) Installation and physical dimensions of any tower construction for use in any cable television system shall comply with all appropriate Federal Aviation Agency regulations. Sec. 5.1-114 5~4. Construction, supervision and alteration after construction. (a) A franchisee shall construct, operate and maintain the cable television system subject to the supervision of the town and in strict compliance with all laws, ordinances, rules and regulations affecting the system. (b) The cable television system, and all parts thereof, shall be subject to periodic inspection by the town. (c) No construction, reconstruction or relocation of the cable television system, or any patls thereof, within the streets shall commence until written permits have been obtained from the town. In any permit so issued, the town director of engineering or other officials authorized by the town manager may impose such conditions and regulations as a condition of the granting of the same as are necessa~ for the purpose of protecting any structures in the streets and for the proper restoration of such streets and structures and for the protection of the public and continuity of pedestrian and vehicular traffic. (d) The town council may, from time to time, issue such reasonable rules and regulations concerning the construction, operation and maintenance of the cable television system as are consistent with the provisions of this chapter and the franchise issued pursuant to this chapter. (e) The town council may require that any part or all of the cable television system should be improved or upgraded by the franchisee within a reasonable time thereafter, including, without limitation, the increasing of channel capacity, the furnishing of improved equipment and the institution of two-way transmission; provided such improvement or upgrading of the system is found to be economically feasible. For the purpose of this subsection, a "finding of economic feasibility" shall mean a finding that the capital costs to the franchisee of such improvement or upgrading can reasonably be amortized over the then remaining life of the franchise without substantially affecting the franchisee's rate of return or other measure of profitability agreed to by franchisee and the town. Minutes of January 28, 1992 Sec. 5.1-~ 5_~5. Use of public property. (a) Should the grades or lines of the streets which the franchisee is hereby authorized to use and occupy be changed at any time during the term of the franchise, the franchisee shall, if necessary, at its own cost and expense, relocate or change its system so as to conform with such new grades or lines. (b) Any alteration to the water mains, sanitary sewerage or storm drainage system or to any town, state or other public facilities in the streets required on account of the presence of the cable television system in the streets shall be made at the sole expense of the franchisee. During any work on constructing, operating or maintaining of the system, the franchisee shall also, at its own expense, protect any and all existing structures belonging to the town or any other person. All work performed by the franchisee pursuant to this section shall be done in the manner prescribed by the town. Sec. 5.1-36 56. Interference with public projects. Nothing in this chapter shall be in the preference or hindrance to the right of the town to perform any public works or public improvements of any description, and should the system in any way interfere with the construction, maintenance or repair of such public works or public improvements, a franchisee shall, at its own cost and expense, protect or relocate its system, or pa~ thereof, as reasonably directed by the town. Sec. 5.1-3~ 57. Technical standards. The franchisee shall comply with all existing and future requirements of the FCC or its successor's governing technical standards. The town reserves the right to adopt its own technical standards when permitted to do so. ARTICLE x?.!! XI. MAINTENANCE, OPERATIONS AND ACCOUNTING RECORDS Sec. 5.1-3~ 58. Books and records. (a) The franchisee shall maintain separate accounting records, in accordance with generally accepted accounting practices, of all its operations and transactions within the town. The town shall have the right to inspect during normal business hours, all books, records, maps, plans, financial statements and other like materials of the franchise which relate to its operation within the town, including expenses attribUted to the franchisee by any parent corporation. All such information received by the town shall remain confidential insofar as permitted by the Virginia Freedom of Information Act, as now or hereinafter amended. The requirements of this section shall be considered a material provision of this chapter. (b) The franchisee shall maintain a file of records open to public inspection in accordance with applicable FCC rules and regulations or, if none exist, in accordance with rules and regulations adopted by the town council. Sec. 5.1-39 59. Reports. (a) Annual report. Within 90 days of the dose of its fiscal year, the franchisee shall submit a written report to the town council, which shall include: (1) A summary of the previous year's activities and development of the cable television system, including but not limited to services begun or dropped and subscribers gained or lost; (2) A summary of complaints, identifying both number and nature of the complaints received and an explanation of the disposition; (3) A financial statement including balance sheet, statement of income and expenditures, and statement of changes in financial position, which the town manager may require to be an audited statement by giving notice to the franchisee 60 days prior to the deadline for submittal of the written report; (4) A projected financial statement including all of the above information, along with a capital program and projected new services for the next two years; (5) A reconciliation between previously projected estimates and actual audited figures; (6) A list of all stockholders with a three percent or more interest in the franchise or, if applicable, its parent corporation, during the fiscal year and a list of all officers and members of the board of directors of the franchisee and, if applicable, a list of all officers of the parent corporation of the franchisee; and (7) Such other information as the town manager or the town council may reasonably direct. (b) Annual plant survey report. A franchisee shall prepare and submit, by August 31st of each year, a complete survey of its plant and a full report thereon to the town council. The purpose of the Minutes of January 28, 1992 report shall be to assure the town that the technical standards of the FCC and other applicable standards established herein are being maintained. The plant survey shall include appropriate electronic measurements and shall be conducted in conformance with such requirements, including supervision, as the town manager may require. (c) Income tax reports. In addition, a franchisee shall furnish to the town manager, within ten days after filing, a true copy of its federal income tax return. Sec. 5.1-44 60. Service requirements. (a) A franchisee shall comply with all technical standards and specifications established by the FCC throughout the entire period of its franchise. (b) A franchisee shall render efficient service, make repairs promptly and interrupt the service only for good cause and for the shortest time possible. Such interruptions, insofar as possible, will be preceded by notice and shall occur during periods of minimum use of the system. (c) A franchisee shall maintain its principal office in the town, which shall be open during all usual business hours, have a publicly listed telephone and be so operated that complaints and requests for repairs or adjustments may be received and acted upon on a 24-hour basis. ARTICLE ~ XII. RATES; COMPLAINTS, PROCEEDINGS Sec. 5.1-41 61. Filing and publication of rates, rules and regulations. A franchisee shall publish and file with the town manager schedules of all rates and charges for all services offered to the subscribing public. Such schedules shall plainly state the cost of each particular service or combination of services, together with all rules, regulations and requirements affecting the installation, maintenance and provision of service or which otherwise affect the quality or cost of such service to the subscriber. The manner and form by which such schedules are published shall be reviewed and approved by the town manager. Copies of all such schedules shall be available to the public upon payment of a reasonable fee equal to the cost of reproduction. Sec. 5.1-4~ 62. Discriminatory or preferential practices prohibited. The franchisee shall not, in its rates or charges, or in making available the services of facilities of its system, or in its rules or regulations, or in any other respect, make or grant a preference or advantage to any subscriber or potential user of the cable television system or to any user or potential user of the cable television system; and shall not subject any such person to any prejudice or disadvantage. This provision shall not be deemed to prohibit promotional campaigns to stimulate subscriptions to the cable television system or other legitimate uses thereof. Notwithstanding the aforementioned, this provision shall not prohibit the franchisee's establishment of special rates or charges for subscribers eligible and participating in the town's real estate tax relief for the elderly program or handicapped persons, as defined in Section 46.1-104.1 (al) of the Code of Virginia. Sec. 5.1-43 63. Rates. (a) A franchisee's initial rates for both basic subscriber service and special services shall not exceed the rates submitted in the franchisee's application as a part of its proposal for a cable television system franchise for a minimum period of one year. Thereafter, future rate increases throughout the term of the franchise shall be governed by the procedures set out in the franchise agreement between the town and franchise. Calculation of the time period that initial rates are valid will begin following the first subscriber connection. (b) Notwithstanding the above, the town reserves the right to regulate cable installation and service fees for all cable services upon the finding that monthly service charges for one or more se,~ices or one or more installation charges exceeds by ten percent the average charges in use by cable firms in other jurisdictions within a 50-mile radius of the town. Upon notice of this finding to the franchisee, the franchisee shall reduce the offending charges to within the ten percent limit prescribed within 30 days from said notice or the town shall implement permanent rate regulation procedures for the life of the franchise. The town shall have the sole authority to develop procedures and methodology for rate regulation to insure reasonable rate regulation and a fair return on investment by the franchisee in the cable system. In determining a franchisee's rate base for reviewing proposed rate increases, the town shall not in any event take into account any value beyond the net book value of a cable plant then in existence and devoted to cable television service. The regulation procedure at a minimum shall include hearings and 60 days' notice from the effective date of any rate increase requested. Sec. 5.1-44 64. Complaints. (a) Complaints by any subscriber may be filed with the franchisee in writing or delivered to the franchisee oreflly in person or by telephone. (b) Any complaints received from subscribers shall be investigated by the franchisee and acted upon as soon as possible, within one business day of the receipt. Minutes of January 28, 1992 (c) The franchisee shall keep a maintenance service log that will indicate the nature of each complaint, the name of the employee of the franchisee receiving the complaint, the date and time it was received, the disposition of the complaint and time and date thereof. The log shall also indicate specific steps taken by the franchisee to remedy the complaint. This log shall be made available for inspection upon request by the town manager. (d) Notwithstanding the above, the franchisee shall advise the town manager in writing on a quarterly basis of all unresolved complaints. The nature and number of unresolved complaints shall be considered by the town council during any subsequent renegotiations for extension of any cable television system franchise. ARTICLE ll~ XIII. FINANCIAL AND INSURANCE PROVISIONS Sec. 5.1-4~ 6__~5. Franchise fee. (a) As compensation for any franchise granted pursuant to this chapter in consideration of permission to use the streets and public ways of the town for the construction, operation, maintenance and reconstruction of the cable television system, the franchisee shall pay to the town an amount equal to thrcc five percent of the franchisee's gross annual receipts from all sources attributal to the operations of the franchise within the town, including but not limited to pay cable, advertising, leased access and any lump sum connection fees. ..................................... ~ ............................ , ....pcrccn~c cf 1 in any 5'car in ':~h!ch thc -~b!o tole'ge!Ch gystcm has ~,999 subcc~bor ocnncc+~cnc. Rese~ed. (c) Payments to the town under this provision shall be computed quarterly, for the preceding quarter as of March 31, June 30, September 30 and December 31. Each quarterly payment shall be due and payable no later than 30 days after the applicable computation date. Each payment shall be accompanied by a report showing the basis for the computation and such other relevant material as required by the Town Manager. (d) Acceptance of any payment by the town should not be construed as agreement that the amount paid is in fact the correct amount, nor shall such acceptance of payment be construed as release of any claim for additional amounts payable to the town. All amounts paid shall be subject to audit and recomputafion by the town. In the event any such audit or recomputafion results in additional revenue payable to the town, such amounts will be subject to a ten percent simple interest charge. (e) Nothing in this section shall be interpreted as relieving a franchisee of local taxes. fcc ch-~! bc rc?nrncd to E! app!~n~ ~f nc frcnch~cc !c awardcd. Sec. 5.1-4-7 6._Q. Liability, indemnification and bonding. (a) Upon acceptance of any franchise under this chapter, the franchisee shall pay all damages and penalties which the town may legally be required to pay as a result of granting the franchise. These damages or penalties shall include, but shall not be limited to, damages arising out of the installation, operation or maintenance of the cable television system, whether or not any act or omission complained of is authorized, allowed or prohibited by this chapter. (b) The franchisee shall provide and pay for any legal defense of the town with regard to all actions mentioned above. (c) The franchisee shall maintain, throughout the term of its franchise, liability insurance in companies acceptable to the town sufficient to cover such indemnification and naming as insured the town and the franchisee with minimum limits of $500,000.00 on account of bodily injuries to or death of one person, $1,000,000.00 on account of bodily injuries to or death of more than one person as a result of any one accident or disaster and $500,000.00 on account of damage to property and it will further deposit the policy or policies of such insurance along with certificates therefor with the town within 30 days of execution of any franchise agreement. (d) Within 30 days of execution of a franchise agreement, a franchisee shall provide and maintain, as herein provided, a faithful performance corporate surety bond or other performance guarantee in a form approved by the town attorney, running to the town, in the penal sum of $100,000.00, payable to the town. The bond shall be released by the town in full upon the franchisee meeting the requirements of subsection 5.1-g0 41(b) herein. Minutes of January 28, 1992 (e) The bonds, performance guarantees and insurance policies called for herein shall also indemnify the Town and other interested parties against any destruction or damage to private property, utility lines, or the facilities of any existing Franchisee, interruption to the service of any existing Franchisee, and any iudgments or costs resulting from any litigation arising out of the award of a Franchise to the Applicant or its activities pursuant thereto. Sec. 5.1-48 6_~7. Security Fund. Prior to the execution of a franchise agreement, a franchisee shall deposit $5,000.00 in an escrow account with the town director of finance to be held by the town and invested in accordance to subsection 2-84 CO) of the Town Code, throughout the initial and any subsequent term of a franchise. This fund will provide cash as security for the faithful performance by the franchisee of the provisions of this chapter and of its franchise relating to construction and compliance with all order, permits and directions of any department of the town having jurisdiction over its acts or default. Within 30 days after notice to it that any amount has been withdrawn from the security fund deposit as provided herein, the franchisee shall deposit in such account a sum of money equal to the amount withdrawn. Sec. 5.1~9 6~8. Penalties. For violation of the provisions of this chapter, penalties shall be chargeable by the manager to the security fund unless corrected within ten days of written notice thereof by certified mail to the franchisee as follows: (a) For failure to submit plans indicating expected dates of installation of various parts of the system, per day .................................................................. $25.00 Co) For failure to commence operations in accordance with requirements herein, per day ........................................ $50.00 (c) For failure to complete construction and installation of system as required, per day ........................................ $50.00 (d) For failure to supply data requested by town in connection with installation, construction, customers or financial reports, per day ................... $25.00 -(e) For failure to restore the security fund as required within the specified 30 days, the entire cash deposit remaining, if any, and the full amount of the performance bond shall be forfeited. The franchisee may request the manager exclude from the ten-day correction period delays equal to the time lost for acts of God, labor disputes, abnormal weather conditions, fires or other causes outside its control. ARTICLE/~I X1V. ADMINISTRATION Sec. 5.1-N 60. Town manager--Generally. The day regulation, enforcement and administration Of any franchise granted under this chapter shall be the responsibility of the town manager. Sec. 5.1-,~-1~ 70. Same--Functions. The town manager's authority and responsibilities with respect to a franchise granted pursuant to this chapter shall include the following: (a) To assist in the preparation of the invitation to bid for cable television system franchises, establish criteria for review and ranking of franchise application, review and screen applications for franchises and make selection recommendations to the council. Co) To monitor and enforce all aspects of the franchisee's performance in meeting all terms, provisions, requirements and construction schedules established in this chapter. (c) To advise and make recommendations to the council on matters which may constitute grounds for revocation of a franchise in accordance with this chapter. (d) To monitor and investigate where appropriate complaints against the franchisee by any person. ARTICLE Yff! XV. RIGH]~ OF INDMDUALS Sec. 5.1~ 7_~1. Discriminatory employment practices prohibited. The franchisees shall not deny service, access or otherwise discriminate against subscribers, channel users or general citizens on the basis of race, color, religion, national origin or sex. The franchisees shall strictly adhere to any equal employment opportunity requirements of the FCC. THe franchisees shall comply with all other applicable federal, state and town laws, and all executive and administrative orders relating to nondiscrimination. Minutes of January 28, 1992 Sec. 5.1-~] 7--2. Restrictions on cable monitoring. Except as otherwise provided by this section, the franchisee shall not monitor or arrange for the monitoring or permit any person, either expressed or implied through their knowledge, to monitor any subscriber outlet or receiver for any purpose whatsoever, without the specific written authorization of the subscriber being monitored and other than to the extent so authorized by such subscriber. Any information gathered by such monitoring shall not be sold, given or otherwise transferred to any person not in the employ of the franchisee or the person supplying the service involved, provided that the franchisee may conduct such monitoring as may be reasonably necessary for: (1) the maintenance and operation of the cable television system; and (2) the collection of data for the purpose of ascertaining viewer response to programming. Any data collected for the purpose of ascertaining viewer response to programming may be disseminated on a aggregate basis only and may not in any way reveal or indicate any information on individual subscribers. Sec. 5.1-~4 7--3. Privacy and other human rights. The franchisee and the town shall maintain constant vigilance with regard to possible abuses of the right and privacy or other human rights of any subscriber, programmer or general citizen resulting from any device or signal associated with the system. Sec. 5.1-~$ 7~4. Permission of property owner required. No cable line, wire, amplifier, converter or other piece of equipment owned by a franchisee shall be installed by a franchisee without first securing the permission of the owner of any prope~y or easement involved. If such permission is later revoked, whether by the original or a subsequent owner, the franchisee shall remove forthwith any of its equipment which is both visible and movable and promptly restore the property to its original condition. Sec. 5.1-~6 7--5. Sale of subscriber lists prohibited. A franchisee shall not sell, or otherwise make available, lists of the names and addresses of its subscribers, without permission of the subscribers, to anyone other than authorized town officials for purposes of enforcing franchise provisions. ARTICLE X!!! XVI. MISCELLANEOUS PROVISIONS Sec. 5.1-~7 7--6. Fraud. It shall be unlawful for any person to defraud or attempt to defraud any cable television system franchisee by attempting to obtain any service therefrom without payment as described in Section 18.2- 187.1 of the Code of Virginia. Any person who violates this provision, if the value of service, credit or benefit procured is $100.00 or more, shall be guilty of a class 6 felony; or if the value be less than $100.00 shall be guilty of a class 1 misdemeanor, as penalties for such are set out in the Code of Virginia. Sec. 5.1-~ 7._~7. No recourse against the town. The franchisee shall have no recourse whatsoever against the town or its officials, boards, commissions, agents or employees for any loss, cost. expense or damage arising out of any provision or requirement of this chapter or because of the enforcement of this chapter, unless the same shall be caused by criminal acts or by willful or gross negligence. Sec. 5.149 7-6. Official name of franchise. Any franchisee licensed to operate a cable television system within the town shall include the word "Leesburg" in the official name of the said firm or corporation so authorized, upon the request of the town. Sec. 5.1-60 7__~9. Extensions outside corporate limits. (a) The franchisee shall not extend cable television service to residents outside the franchise territory until it has met the requirements of subsection 5.1-20 41(b) of this chapter. Where extensions of the cable television system are made outside the corporate limits of the town and connect to the cable television system's headend, the monthly rate for basic service and special service to customers outside of town shall contain a $1.00 surcharge which the franchisee shall pass directly through to the town on a quarterly basis. This fee reimburses the town for costs of administration and regulation of the cable television system. The franchisee's receipts from cable services outside the corporate limits of the town shall be excluded from the gross annual receipts used to calculate the franchise fee. (b) For the purpose of determining the number of subscribers with respect to section 5.1-26 47 of this chapter, subscribers residing outside the town shall be included. ARTICLE y-tV XVII. CABLE TELEVISION ADVISORY COMMISSION Sec. 5.1-6; 8_0.0. Commission established generally. Minutes of January 28, 1992 (a) The Leesburg Cable Television Advisory Commission is hereby established. The commission shall consist of six members who shall be residents of the town. The office of any member shall be vacated if he or she becomes a nonresident of the town. Any vacancy shall be filled for the unexpired term in the same manner as provided herein for original and subsequent appointments. Members shall serve for terms of four years except for councilmanic members. The first five members' terms shall end on June 30, 1983, with ensuing terms ending every four years thereafter. The mayor shall appoint three members by and with the consent of the town council and two members shall be appointed by the franchisee by and with the consent of the town council. The council shall appoint one member from the council to serve on the commission whose term of office shall correspond to his official tenure of office as a councilmember. No member of the commission shall have any interest in franchisee or its contractors; or be an employee of the town. Members of the commission shall be subscribers of the cable television system during their terms when service is available to their residences. (b) Members shall be paid $600.00 each per year by the town, payable in equal monthly installments. Members shall be reimbursed for actual expenses incurred in the exercise of their functions subject to the availability of fund appropriated for the purpose and as approved in advance by the town manager. (c) The commission shall elect its chairman annually and the town manager, or his designate, shall serve as secretary. The commission shall meet monthly or more often as determined by the commission. Sec. 5.1-6~ 8__~1. Powers and duties. The commission shall have the following powers and duties: (a) To adopt rules governing conduct of its business and meetings. (b) To maintain a continuous oversight and review of cable system operations and advise the town on franchisee's compliance with the terms of this contract. (c) To encourage the use of access channels among the widest range of institutions, groups and individuals and to monitor franchisee's access policies and practices, including charges for these services, to insure compliance with Section 5.1-4~ 62 of the town code. (d) To make recommendations of general policy to the franchisee relating to the service provided subscribers in the operation and use of access channels with a view of maximizing the diversity of programs and services to subscribers. (e) To review franchisee's proposals for rate revisions and make timely findings of fact and recommendations regarding rates to the town. (f) To make suggestions to the franchisee for appropriate local origination and public access programming, and to resolve disputes regarding noncommercial use of time on access channels. (g) To assist public access and other channel users with grants and other resources made available to the commission. (h) To identify and pursue sources of funds for local programming. (i) To review and make recommendations to the town on proposed annual budgets for town expenditures related to cable television. (j) To review, investigate and make findings of fact relating to compliance and disputes arising from subscribers and other users of the system. (k) To require that franchisee prepare and make available to the public its current policies and charges for commercial and noncommercial use of studio and mobile television production facilities and access to channel time on the cable television system. SECTION II. This Ordinance shall be in full force and effect upon its passage. Mayor Sevila stated that this is a document that everybody has had a lot of opportunity to comment on. It has been revised to the point where everyone's interests have been recognized most impm~tantly the citizens of the town. VOTE Aye: Councilmembers Bange, Clem, Kimball, Lovin, Webb, Mayor Sevila Nay: None Absent: Forester 9. (b) Minutes of January 28, 1992 MOTION On motion of Mr. Webb, seconded by Mr. LOvin, the following ordinance was proposed and unanimously adopted. 91-0-4 - ORDINANCE - AMENDING SECTION 13-75(d) OF THE LEESBURG SUBDMSION AND LAND DEVELOPMENT REGULATIONS TO ADD DESIGN GUIDELINES FOR PIPESTEM LOTS WHE~, public necessity, general welfare, and good planning practice require the evaluation of existing ordinances to ensure they continue to address the needs of the community; and WHEREAS, the Planning Commission has proposed design guidelines to promote more attractive and efficient subdivision layouts involving pipestem lots; and WHEREAS, on September 24, 1991, the Council initiated and referred to the Planning Commission an amendment to the Leesburg Subdivision and Land Development Regulations incorporating the proposed guidelines; and WHEREAS, the Planning Commission conducted a public hearing on the amendment and made a recommendation to Council on October 17, 1991; and WHEREAS, the Town Council conducted a public hearing on January 14, 1992 and has duly considered the proposed guidelines; THEREFORE, ORDAINED by the Council of the Town of Leesburg in Virginia as follows: SECTION I. Section 13-75(d) of the Leesburg Subdivision and Land Development Regulations is hereby amended to include the new paragraphs shown below: (9) Houses on pipestem lots should be sited and oriented so that the house front does not face squarely into a neighboring rear yard. The proposed orientation of houses on pipestem lots and on all lots abutting the stem shall be shown on the preliminary subdivision plat and approved by the Planning Commission. (10) The following design guidelines shall apply to lots adjoining the stem of pipestem lots: ((a)) Required yards abutting the stem shall have a minimum depth of 20 feet. ((b)) Driveways should be accessed from the common pipestem driveway wherever feasible to reduce the number of curb cuts along the public street. SECTION II. The provisions of Section I shall not apply to preliminary and final subdivision plats which have been approved or conditionally approved prior to enactment of this ordinance. SECTION III. AIl prior ordinances in conflict herewith are hereby repealed. SECTION IV. Severability. If any provision of this ordinance is declared invalid by a court of competent jurisdiction, the decision shall not affect the validity of the ordinance as a whole or any remaining provisions of the Subdivision and Land Development Regulations. SECTION V. This ordinance shall be in effect upon its passage. VOTE Aye: Councilmembers Bange, Clem, Kimball, Lovin, Webb, Mayor Sevila Nay: None Absent: Forester 9. (c) Mr. Brown briefly summarized the proposed ordinance. MOTION On motion of Mr. Lovin, seconded by Ms. Bange, the following ordinance was proposed and unanimously adopted. 91-0-5 - ORDINANCE - AMENDING SECTION 17B-3 AND SECTION 17B-3(2) OF THE LEESBURG ZONING ORDINANCE REGARDING CML VIOLATIONS AND PENALTIES WHEREAS, public necessity, general welfare, and good zoning practice require the evaluation of existing ordinances to ensure that they continue to address the needs of the community; and Minutes of January 28, 1992 WHEREAS, Council amended Article 17 by Ordinance 89-0-10 to provide an administrative process to correct violations of the Leesburg Zoning Ordinance by imposing civil penalties for non- compliance with the ordinance; and WHEREAS, this amendment establishes the imposition of fines associated with the civil penalties consistent with Section 15.1-499.1 of the 1950 Code of Virginia, as amended on July 1, 1990. THEREFORE, ORDAINED by the Council of the Town of Leesburg in Virginia as follows: SECTION I. Section 17B-3 and Section 17B-3(2) of the Leesburg Zoning Ordinance is hereby amended to read as follows: Section 17B-3. CML VIOLATIONS AND PENALTIES Any violation of the provisions of this Ordinance enumerated in Section 17B-4 shall be deemed a civil violation and upon an admission of liability or finding of liability, shall be punishable by a fine of $~9.99 $100.00 for each individual charge. Each day during which the violation is found to have existed shall constitute a separate offense. However, in no event shall specified violations arising from the same operative set of facts be charged more frequently than once in any 10 day period, in no event shall a series of specified violations rising from the same operative set of facts result in civil penalties which exceed a total of $25~n.~n~n $3~000.00. Nothing in this subsection shall be construed as to prohibit the Town Council, Town Manager or the Zoning Administrator from bringing legal action to remedy any violation by injunction, abatement or other appropriate action or proceeding, as authorized by law. Section 17B-3(2) Any person charged for such violation may enter a waiver of trial, admit liability, and pay the $5~.~9 $100.00 penalty to the Leesburg Department of Finance within 10 days of the receipt of said summons. Such admission of liability shall have the same force and effect as a judgement of Court and shall not be a criminal conviction. SECTION ri. All prior ordinances in conflict herewith are hereby repealed. SECTION III. Severability. If any provision of this ordinance is declared invalid by a com"~ of competent jurisdiction, the decision shall not affect the validity of the ordinance as a whole or any remaining provisions of the zoning ordinance. SECTION IV. This ordinance shall be in effect upon its passage. VOTE Aye: Councilmembers Bange, Clem, Kimball, Lovin, Webb, Mayor Scylla Nay: None Absent: Forester 9. (d) MOTION On motion of Mr. Webb, seconded by Ms. Bange, the following resolution was proposed and unanimously adopted. 92-9 - RESOLUTION - INITIATING AN AMENDMENT TO ARTICLE 18 OF THE LEESBURG ZONING ORDINANCE TO REVISE THE DEFINITION OF A BED AND BREAKFAST INN WHEREAS, in addition to the provision of food and lodging for guests, other ancillary services such as provisions for small meetings, receptions, and similar social events for guests may be incidental to a bed and breakfast inn; and WHEREAS, the present definition of a bed and breakfast inn, as set forth in Article 18 of the Leesburg Zoning Ordinance, clearly prohibits related ancillary uses; and WHEREAS, it is desired that such related ancillary uses be allowed if authorized by the Town Council as a condition of a Special Exception application for a bed and breakfast inn, as appropriate on a case by case basis: THEREFORE, RESOLVED by the Council of the Town of Leesburg in Virginia as follows: The following amendment to Article 18 of the Leesburg Zoning Ordinance is hereby initiated and referred to the Planning Commission for public hearing and recommendation under Chapter 11, Title 15.12 of the 1950 Code of Virginia, as amended: BED AND BREAKFAST INN Minutes of January 28, 1992 A private residence, in which lodging and food are provided by the owner or operator for profit to one or more transient guests. Bed and breakfast inns shall not include more than five guest rooms. Commercial use or rental of the property for business meetings, seminars, receptions and similar social events or activities shall not be permitted for residences which do not meet the special conditions listed in Article 11A-7, Section (6)(c). The owner or operator shall be a resident of the inn. DISCUSSION Mr. Lovin noted that this was being initiated by the Council. If it were being initiated by the owner or owner's representative they would have to wait one year since it was denied in August. Mayor Sevila stated that this is a text amendment as opposed to an application with respect to a particular piece of property for a particular use. He asked that staff make sure that everyone who spoke at the last public hearing get personal notice of the fact that this is being reinitiated. VOTE Aye: Councilmembers Bange, Clem, Kimball, Lovin, Webb, Mayor Sevila Nay: None Absent: Forester 9. (e) MOTION On motion of Mr. Kimball, seconded by Mr. Webb, the following resolution was proposed and unanimously adopted. 92-10 - RESOLUTION - INITIATING AN AMENDMENT TO ARTICLE 11A-7, SECTION (6) OF THE LEESBURG ZONING ORDINANCE TO REVISE THE SPECIAL EXCEPTION STANDARDS OF A BED AND BREAKFAST INN WHEREAS, in addition to the provision of food and lodging for guests, other ancillary statices such as provisions for small meetings, receptions, and similar social events for guests may be incidental to a bed and breakfast inn; and WHEREAS, the present review standards for a bed and breakfast inn, as set forth in Article 11-7(6) of the Leesburg Zoning Ordinance, do not provide specific review criteria for ancillary uses, incidental to a bed and breakfast inn; and WHEREAS, it is desired that such related ancillary uses be allowed if authorized by the Town Council as a condition of a Special Exception application for a bed and breakfast inn, as appropriate on a case by case basis: THEREFORE, RESOLVED by the Council of the Town of Leesburg in Virginia as follows: The following amendment to Article 11A-7(6) of the Leesburg Zoning Ordinance is hereby initiated and referred to the Planning Commission for public hearing and recommendation under Chapter 11, Title 15.12 of the 1950 Code of Virginia, as amended: No alterations to the exterior appearance of the building or any accessory structure or the premises shall be made which changes the residential character of the prope~5'. No traffic shall be generated by such bed and breakfast inn in greater volumes than would normally be expected in a residential neighborhood. Any need for parking generated by the bed and breakfast inn shall be met by using off-street parking in a manner which protects the residential character of the area and the visual appearance of the residence. For residences fronting on King, Market or Loudoun Streets with a minimum lot size of 2.5 acres, rooms may be provided for meetings, seminars, receptions and similar social events when authorized by the Town Council, which shall impose the following minimum conditions on such use: No outdoor amplification of music; Three outdoor parties may be held each year between Memorial Day and Labor Day, at intervals of not less than five (5) weeks; No more than 30 receptions or similar social events may be held each year (including the outdoor parties referred to in (2) above), with not more than three (3) such events occurring within any one-month period; Receptions or similar social events shall be scheduled on Fridays and Saturdays beginning no earlier than 10:00 a.m. and ending no later than 12 midnight] Receptions or similar social events may be scheduled on Sundays, but shall begin no earlier than 12 noon and end not later than 10:00 p.m4 Minutes of January 28, 1992 6_. 7_~. 9_. 10__~. The number of persons attending any one reception or similar social event shall not exceed 150~ For any reception or social event where the number of guests anticipated exceed 90, traffic assistance shall be provided by the operator of the bed and breakfast inn~ Business meetings, seminars and similar events shall be scheduled only between 8:00 a.m. and 10:00 p.m, Mondays through Friday~ The number of persons attending any business meeting, seminar or similar event shall not exceed 30~ and No additional exterior lighting shall be allowed beyond the minimum required for safety nor shall exterior lighting be used beyond the specified hours referred to above. DISCUSSION Mayor Sevila stated that these are conditions that might be imposed as recommended by someone who hopes to apply for a bed and breakfast special exception. This is a list that will help limit the activity and make it more compatible with its neighbors. After further discussion items 7 and 10 were amended. VOTE Aye: Councilmembers Bange, Clem, Kimball, Lovin, Webb, Mayor Sevila Nay: None Absent: Forester 9. (f), (~). (h), (i) MOTION On motion of Ms. Bange, seconded by Mr. Webb, the following resolutions were proposed as consent items and unanimously adopted. 92-11 - RESOLUTION - AUTHORIZING PUBLICATION OF A NOTICE OF INTENT TO ALTER VOTING PRECINCTS AND POLLING PLACES IN THE TOWN OF LEESBURG AND REQUESTING THE ELECTORAL BOARD TO CONSIDER AN ALTERNATIVE SITE FOR THE RESCUE SQUAD POLLING PLACE WHEREAS, Section 24.1-92 of the 1950 Code of Virginia, as amended, authorizes the Town of Leesburg to establish voting precincts and polling places for town elections; and WHEREAS, the Town of Leesburg desires to alter its voting precincts and polling places to correspond to the precincts and polling places established by the County of Loudoun; and WHEREAS, Section 24.1-39 of the Code of Virginia requires publication of two successive notices of intent to alter town voting precincts and polling places; and WHEREAS, access and parking for the Rescue Squad polling place is inadequate. THEREFORE, RESOLVED by the Council of the Town of Leesburg in Virginia as follows: SECTION I. A notice of intent to alter voting precincts and polling places in the Town of Leesburg is authorized to be published in the Loudoun Times-Mirror on January 29, 1992, and February 5, 1992. SECTION Ii. The Town Manager is directed to request the Loudoun County Electoral Board to consider an alternative polling place for the East Leesburg District. 92-12 - RESOLUTION - PROCLAIMING APRIL 11 AS THE OFFICIAL ARBOR DAY FOR THE TOWN OF LEESBURG WHEREAS, in 1872 J. Sterling Morton proposed to the Nebraska Board of Agriculture that a special day be set aside for the planting of trees; and WHEREAS, this holiday, called Arbor Day, was first observed with the planting of more than a million trees in Nebraska; and WHEREAS, Arbor Day is now observed throughout the nation and world; and WHEREAS, trees can reduce the erosion of topsoil, cut heating and cooling costs, moderate the temperature, clean the air, produce oxygen and provide habitat for wildlife; and WHEREAS, trees in our town increase property values, enhance the economic vitality of business areas, and beautify our community; and Minutes of January 28, 1992 WHEREAS, the Town of Leesburg has been recognized as a Tree City USA by the National Arbor Day Foundation and desires to continue its tree planting ways: THEREFORE, RESOLVED by the Council of the Town of Leesburg in Virginia as follows: April 11 is hereby proclaimed as the official Arbor Day of the Town of Leesburg for 1992. 92-13 RESOLUTION ACCEPTING PUBLIC IMPROVEMENTS, RELEASING THE PERFORMANCE GUARANTEE AND APPROVING A MAINTENANCE GUARANTEE FOR PUBLIC IMPROVEMENTS AT THE FAIRWAY MANOR SUBDIVISION WHEREAS, SAD Realty, Inc., the developer of Fairway Manor, has completed the public improvements in accordance with approved plans and town standards, and these have been inspected and approved. THEREFORE, RESOLVED by the Council of the Town of Leesburg in Virginia as follows: SECTION I. The corporate surety bond from Homestead Insurance Company in the amount of $77,200.00 is released, and a new security in a form approved by the town attorney for a maintenance guarantee in the amount of $19,300.00 is approved, and shall be in effect for a period of one year from this date. SECTION II. This release is contingent upon delivery of a properly executed instrument conveying unto the town all such improvements and easements free of any liens or charges. 92-14 - RESOLUTION ACCEPTING PUBLIC IMPROVEMENTS, RELEASING THE PERFORMANCE GUARANTEE AND APPROVING A MAINTENANCE GUARANTEE FOR PUBLIC IMPROVEMENTS AT LEESBURG GATEWAY LOT 3 WHEREAS, James C. Athey, the developer of Leesburg Gateway Lot 3, has completed the public improvements in accordance with approved plans and town standards, and these have been inspected and approved. THEREFORE, RESOLVED by the Council of the Town of Leesburg in Virginia as follows: SECTION I. The irrevocable letter of credit from Farmers and Merchants National Bank in the amount of $82,247.00 is released, and a new security in a form approved by the town attorney for a maintenance guarantee in the amount of $4,112.00 is approved, and shall be in effect for a period of one year from this date. SECTION II. This release is contingent upon delivery of a properly executed instrument conveying unto the town all such improvements and easements free of any liens or charges. VOTE Aye: Councilmembers Bange, Clem, Kimball, Lovin, Webb, Mayor Sevila Nay: None Absent: Forester 9. fi) MOTION On motion of Mr. Webb, seconded by Mr. Lovin, this item was referred to the February 4, 1992 Administration and Public Works Committee for further consideration. VOTE Aye: Councilmembers Bange, Clem, Kimball, Lovin, Webb, Mayor Sevila Nay: None Absent: Forester ADJOURNMENT On motion of, and duly seconded, the meeting was adjourned at 8:40 p.m. Robert E SeVila, M~yor  Town of Leesburg Clerk of Council