Agenda 2006 01-09
AGENDA NEW HANOVER COUNTY BOARD OF COMMISSIONERS
Assembly Room, New Hanover County Historic Courthouse
24 North Third Street, Room 301
Wilmington, NC
ROBERT G. GREER, CHAIRMAN. WilLIAM A. CASTER, VICE-CHAIRMAN
TED DAVIS, JR., COMMISSIONER. WilLIAM A. KOPP, JR., COMMISSIONER. NANCY H. PRITCHETT, COMMISSIONER
BRUCE T. SHELL, COUNTY MANAGER' WANDA COPLEY, COUNTY A HORNEY' SHEILA SCHULT, CLERK TO THE BOARD
January 9,2006 5:30 p.m.
MEETING CALLED TO ORDER (Chairman Robert G. Greer)
INVOCATION
PLEDGE OF ALLEGIANCE
APPROVAL OF CONSENT AGENDA
ESTIMATED ITEMS OF BUSINESS Page
TIMES No.
5 :40 p.m. 1. Consideration of Human Relations Month Proclamation 31
5 :45 p.m. 2.1 Public Hearing 33
Special Use Permit (Remanded to Planning Board by the Board of
Commissioners 11/07/05) - Request by Blanchard, Jenkins et al for Cingular
Wireless to consider a Special Use Permit to locate a telecommunications
facility (172' monopole) in an R-15 Residential District located at 1540 Murray
Farms Road (S-537, 09/05)
6:05 p.m. 2.2 Public Hearing 49
Rezoning/Conditional Use - Request by Joe Taylor for William Ambrose to
rezone two tracts ofland totaling approximately 4.0 acres of property located at
6631 & 6639 Gordon Road from 0&1 Office & Institution to CD (1-1) Light
Industrial (Z-820, 11/05)
6:35 p.m. 2.3 Public Hearing 57
Rezoning - Request by Withers & Ravenel for Grove Park Properties to rezone
approximately 11.01 acres of property located at 5550 Carolina Beach Road
from R-15 Residential to R-lO Residential (Z-822, 12/05)
6:45 p.m. 2.4 Public Hearing 61
Rezoning - Request by Linda & Gary Meccia to rezone approximately 6 acres
of property located at 5525 Blue Clay Road from R-15 Residential to 1-1 Light
Industrial (Z-825, 12/05)
6:55 p.m. 2.5 Public Hearing 65
Special Use Permit - Request by Chris Johns for G. P. Pond & Associates to
consider a Special Use Permit to expand the parking adjacent to an existing
restaurant in an R-15 Residential District located at 5564 Carolina Beach Road
(S-544, 12/05)
7:10 p.m. Break
7:20 p.m. 2.6 Public Hearing (Item Pulled) 71
Special Use Permit - Request by David Ward concerning validity of original
Special Use Permit (S-13, 06/71)
8:00 p.m. 2.7 Public Hearing 113
Special Use Permit - Request by Danette Young for a Special Use Permit to
place a Singlewide Mobile Home on Lot 10 in Castle Farms Subdivision (S-
548, 01/06)
8:20 p.m. 3. Consideration of Award ofRFP 06-0114 and Approval of Contract 06-0114 for 117
County Telephone System Replacement and Budget Amendment 06-0099
8:35 p.m. 4. (Item Pulled) Consideration of Award ofRFP 06-0005 and Approval of 123
Contract 06-0005 for the Purchase of Public Safety Answering Point (PSAP)
Telephone System for the E-9ll Center Including Installation, Project
Management, Training and Maintenance
8:50 p.m. 5. Consideration of Request for Approval for Maintenance Dredging of Mason 129
J1l1~tctllclAs~Q~ictt~<:l:Sllclg~tAl11~llcll11~llt2QQQ-J9
9:05 p.m. 6. Update on Elections Voting Equipment 137
9:20 p.m. 7. Meeting ofthe Water and Sewer District 143
9:30 p.m. 8. Non-Agenda Items (limit three minutes)
9:35 p.m. 9. Additional Items:
1. Consideration of Fixed Rate General Obligation School Bonds 147
2. CQll~icl~rcttiQllQ[YctrictQl~Rctt~G~ll~rctlQQligcttiQllS~hQQl:SQllclS 163
3. Update on Cleanup of County Roadways 227
4. Update on Status of Remaining Sewer Collection Reports 231
County Manager
County Commissioners
Clerk to the Board
County Attorney
9:45 p.m. ADJOURN
Note: Times listed for each item are estimated, and if a preceding item takes less
time, the Board will move forward until the agenda is completed.
2
MEETING OF THE WATER AND SEWER DISTRICT
ASSEMBLY ROOM, NEW HANOVER COUNTY HISTORIC COURTHOUSE
24 NORTH THIRD STREET, ROOM 301
WILMINGTON, NC
ESTIMATED ITEMS OF BUSINESS Page
TIMES No.
9:20 p.m. 1. Non-Agenda Items (limit three minutes)
9:25 p.m. 2. Approval of Minutes 145
3
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CONSENT AGENDA
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
ITEMS OF BUSINESS Page
No.
1. Approval of Minutes 7
2. Approval of Kure Beach Request for Additional Room Occupancy Funds for 9
Additional Expenses Related to Emergency Vehicle Hatteras Ramps
3. Approval of Cape Fear Healthy Carolinians Grant Application Letter ofIntent to 11
Request Funds for a Program to Address Obesity Problems in New Hanover
County
4. ApprQYctlQLGrctlltApplic;cttiQllJQrSpctllishJllt~1'pr~t~LPQ~itiQllIllllcls[Qrtl1~ 15
Health Department
5. Approval of a Cape Fear United Way Grant to the Health Department and 21
Associated Budget Amendment 06-0097
Approval of Budget Amendments
6.1 06-0092 General Government/N on - Departmental 25
6.2 06-0096 Sheriff 27
5
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NEW HANOVER COUNTY BOARD OF COMMISSIONERS
REQU EST FOR BOARD ACTION
Meeting Date: 01/09/06
Consent Item #: 1 Estimated Time: Page Number:
Department: Governing Body Presenter: Sheila L. Schult
Contact: Sheila L. Schult
Item Does Not Require Review
SUBJECT:
Approval of Minutes
BRIEF SUMMARY:
Approve minutes from the Regular Meeting, December 19, 2005.
RECOMMENDED MOTION AND REQUESTED ACTIONS:
Approve minutes.
FUNDING SOURCE:
Will above action result in: Number of Positions:
Explanation:
ATTACHMENTS:
ITEM DOES NOT REQUIRE REVIEW
COUNTY MANAGER'S COMMENTS AND RECOMMENDATIONS:
COMMISSIONERS' ACTIONS/COMMENTS:
Approved 5-0.
7
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8
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
REQU EST FOR BOARD ACTION
Meeting Date: 01/09/06
Consent Item #: 2 Estimated Time: Page Number:
Department: County Manager Presenter: Bruce Shell
Contact: Donna Seal
SUBJECT:
Kure Beach Request for Additional Room Occupancy Funds for Additional Expenses Related
to Emergency Vehicle Hatteras Ramps
BRIEF SUMMARY:
On September 19, 2005 the Commissioners approved $52,000 of Room Occupancy Tax funds for Kure Beach to construct
two Emergency Vehicle Hatteras Ramps.
The final cost of the project is $59,751. Kure Beach is requesting an additional $7,751 for the ramps. The overrun is
attributed to two unforeseen items, the need for additional backfill material and the need for an additional ten roadway pads
to accommodate an elevation drop. The Port, Waterway and Beach Commission approved this request.
RECOMMENDED MOTION AND REQUESTED ACTIONS:
Approve Room Occupancy Tax funding for Kure Beach Emergency Vehicle Hatteras Ramps.
FUNDING SOURCE:
Will above action result in: Number of Positions:
Explanation:
ATTACHMENTS:
REVIEWED BY:
LEGAL: FINANCE: Approve BUDGET: HUMAN RESOURCES:
COUNTY MANAGER'S COMMENTS AND RECOMMENDATIONS:
Approve request.
COMMISSIONERS' ACTIONS/COMMENTS:
Approved 5-0.
9
'TOWN OP 1(V1(CE (]3CE;4CJ{
117 SETTLERS LANE. POST OFFICE BOX 3 . KURE BEACH, NORTH CAROLINA 28449
TELEPHONE (910) 458-8216. FAX (910) 458-7421
December 5, 2005
Mr. Bruce Shell, County Manager 1;--:1
New Hanover County ;' 1
c
320 Chestnut St., Room 302
Wilmington, N.C. 28401 DEe - 6 2005
Dear Mr. Shell;
At the New Hanover County Commissioners Meeting of September 19, 2005,
approval was given to proceed with the construction of two Emergency Vehicle
"Hatteras Ramps" to provide for improved access for first responders and for
beach renourishment equipment. The Port, Waterway & Beach Commission
requested funding of $52,000 from the Room Occupancy Tax Fund for the
project which was authorized.
The project has now been completed at a cost of $59,750.04, an overrun of
$7,750,04. The overrun is attributed to two unforeseen items, the need for
additional backfill material ($1,658.44) and the need for an additional ten
roadway pads to accomodate an elevation drop ($6,373.44).
The Engineers' estimate for the construction portion of the job was $58,737,
which in hindsight was more in line with the project cost and should have been
the basis of the funding request on September 19th.
Attached are invoices that have been paid by the Town of Kure Beach totalling
$59,750.04 for which we are requesting reimbursement. We also attach other
pertinent documents relating to the project.
The completion of this project will now make five beach "Hatteras Ramp"
accesses available to the County and the Towns.
Kindly advise should further information be needed,
Very truly yours
\~~d?//!I'-~U~
Betty L. edlin, Mayor
cc: Mr. Rick Catlin, Chairman
Port, Waterway & Beach Commission eva-06
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NEW HANOVER COUNTY BOARD OF COMMISSIONERS
REQU EST FOR BOARD ACTION
Meeting Date: 01/09/06
Consent Item #: 3 Estimated Time: Page Number:
Department: Health Presenter: Mr. Scott Harrelson, Assistant Health Director
Contact: Mr. Scott Harrelson, Assistant Health Director
SUBJECT:
Cape Fear Healthy Carolinians (CFHC) - Grant Application Letter of Intent - Obesity
BRIEF SUMMARY:
The Obesity Sub-Committee of Cape Fear Healthy Carolinians (CFHC) has been growing a community coalition of
concerned parties including representatives from virtually every sector of our community in strong support of a coordinated
effort to this health crisis. Background research has supported our belief that the only way to successfully intervene is
through a systemic approach to impact the lack of physical activity and increasingly poor eating habits. The Obesity Sub-
Committee envisions a program that will last from three to five years as we create increased awareness and implement
infrastructure that we expect would become self sustaining. We are requesting $300,000 over three years to establish the
necessary infrastructure to coordinate the community efforts, assist in the implementation of the multiple programs, direct
the community educational campaign, establish additional funding sources and provide technical assistance to various
partner organizations. These funds would be utilized to contract with a coordinator, pay for administrative support, and
cover basic start up expenses. No County matching funds are required. Space for the two temporary employees will be
provided via in-kind contribution from UNCW.
The grant application will be completed by members of the Obesity Sub-Committee. Cape Fear Memorial Foundation
requested that the funding be routed through the New Hanover County Health Department. Considering that Obesity was
among our top initiatives for the department we would like to offer our support to assist this project.
RECOMMENDED MOTION AND REQUESTED ACTIONS:
To approve the Letter of Intent for Grant Application requesting $300,000 from Cape Fear Memorial Foundation over three
years, to accept the funds if awarded, and approve any associated budget amendment.
Funding source: Cape Fear Memorial Foundation
FUNDING SOURCE:
Will above action result in: Number of Positions:
Explanation: No new permanent positions. Temporary Program Coordinator and Temporary Administrative Support
Technician - no benefits.
ATTACHMENTS:
Letter of Intent for Grant Application
11
REVIEWED BY:
LEGAL: N/A FINANCE: N/A BUDGET: HUMAN RESOURCES:
COUNTY MANAGER'S COMMENTS AND RECOMMENDATIONS:
Recommend approval.
COMMISSIONERS' ACTIONS/COMMENTS:
Approved 5-0.
12
NEW HANOVER COUNTY
HEALTH DEPARTMENT
2029 SOUTH 17m STREET
WD..MINGTON, NC 28401-4946
TELEPHONE (910) 343-6500 FAX (910) 341~4146
December 1, 2005
Gary Garris
Cape Fear Memorial Foundation \'
2508 Independence Blvd. Suite 200
Wilmington. NC 28412
Mr. Garris:
Thank you for the opportunity to submit a letter of interest on behalf of Cape Fear
Healthy Carolinians (CFHC) to combat the growing obesity problems of New Hanover
County.
As we discussed the Obesity Sub-Committee of CFHC has been growing a community
coalition of concerned parties including representatives from virtually every sector of our
community in strong support of a coordinated effort to this health crisis. Background
research has supported our belief that the only way to successful intervene is through' a
systemic approach to impact the lack of physical activity and increasingly poor eating
habits.
The committee has been diligent in its efforts to review available research regarding
what approaches to community based interventions seem to have the greatest promise,
not just of participation in programs. but in actual improvements in health status. In
reviewing the resources that are currently available in the community and evaluating
what interventions would be appropriate for implementation. this coalition has
developed a plan that encompasses the following: 1. changes in policy (e.g. school
nutrition and physical education requirements, open space policy, etc.); 2. Changes in
the physical structure of the community (e.g. walking trails, increased access to safe
public environments, etc.) 3. Organizational programs (e.g. within the schools, church
programs, business based wellness programs, etc.) and 4. interventions targeting
individuals and groups (e.g. information and referral program, diabetes mall walks,
neighborhood trails program, etc.). These programs would be introduced in the context
of a coordinated community wide multimedia education and awareness campaign.
The Obesity Sub-Committee envisions a program that will last from three to five years
as we create increased awareness and implement infrastructure that we expect would
become self sustaining. This effort would be a coordinated effort from the organizations
listed in the attachment as well as other organizations that may join the coalition as it
unfolds and expands. We are anticipating that Kate B ReynoldS Charitable Trust will be
partnering with us in this endeavor. Additionally, we will be collaborating with the City of
Wilmington in applying for a small ($30,000) grant to the Fit Communities program of the
13
13
NC Health and Wellness Trust Fund request under Mayor Broadhurst's 'leadership...
We are requesting $300,000 over three years to establish the necessary infrastructure
to coordinate the community efforts, assist in the implementation of the multiple
programs, direct the community educational campaign, establish additional funding
sources and provide technical assistance to various partner organizations. These funds
would be utilized to contract with a coordinator, pay for administrative support, and
cover basic start up expenses.
As we discussed, the coordinator's role would be to supplant rather than replace the
efforts of the community partners. The process of integrating the many community -,
partners, organizing the various programs and providing the necessary technical
assistance and professional expertise will require more resources than Healthy ~'
Carolinians currently has available. It is the clear consensus of the O~sity Sub-
Committee that a systemic community approach is the only way that we can make a
significant and sustainable difference. In order to accomplish that, the initial priofity
established unanimously by the Obesity Sub-Committee was to contract a coordinator
with a background in health, community development, grant writing who would lead the
coalition and bring the necessary time and expertise to this ambitious undertaking. It is
not the expectation of the CFHC that we would establish a new agency or organization,
but rather add time-limited resources into the current efforts of increasing awareness of
the issue of obesity in New Hanover County.
Certain portions of the target population fall outside the target population of Wilmington
Health Access For Teens. Therefore another member of the CFHC is n8e<ied to be the
fiscal agent. In considering which of the CFHC partners would be the most logical fiscal
agent for this grant request we identified the New Hanover County Health Department
to be the fiscal agent.
Our proposal, pending formal approval by the New Hanover Board of Health and the
New Hanover County Commissioners, would be to have the Coordinator be contracted
through the New Hanover County Health Department. In the spirit of community and
interagency cooperation, UNCW Division for Public Service and Continuing Studies has
agreed to donate in-kind space and additional resources to support the Obesity Sub-
Committee's efforts in this endeavor.
We would appreciate your consideration of this program.
Respectfully,
#~ 11Ec0
David Rice, Director
New Hanover County Health Department
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NEW HANOVER COUNTY BOARD OF COMMISSIONERS
REQU EST FOR BOARD ACTION
Meeting Date: 01/09/06
Consent Item #: 4 Estimated Time: Page Number:
Department: Health Presenter: Ms. Janet McCumbee, Personal Health Services Manager
Contact: Ms. Janet McCumbee, Personal Health Services Manager
SUBJECT:
Grant Application-Spanish Interpreter Position Funds - $20,000
BRIEF SUMMARY:
The NC General Assembly has appropriated funds for the hiring of interpreters, and has notified local health departments
they may apply for funding in the amount of $20,000/year to hire interpreters to enhance our capacity to serve Limited
English Proficiency (LEP) clients. NHCHD currently has a temporary, part-time Spanish interpreter serving our
WIC/Nutrition clients and our Child Service Coordination (CSC) families. However, the demand for interpreting services is
not being met. Our need is to increase this temporary, part-time position to a full-time interpreter position, and this funding,
if awarded, will allow us to accomplish this. Our Hispanic population has grown tremendously over the past five years, as
evidenced by the WIC Hispanic caseload (1999-2000 FY total=181 clients; 2004-2005 FY total=869). If funded, NHCHD
would receive $20,000 from the state for salary and fringe to support a full-time position. A local County match is required,
which already exists in our currently budgeted temporary salary supported by federal WIC funds and CSC Medicaid
revenue. The current cost for the part-time position is $25,650/year. The County match required to fund this increase to a
full-time position would be $24,000, which is slightly less than the current amount funded through WIC and CSC budgets.
No additional County funds would be required to implement. Space is available for this position (currently occupied by
temporary interpreter this position will replace). If awarded, funds will be available January 1, 2006. There is potential for
three years of funding. Sustainability: Position will be sustained as long as funding continues.
RECOMMENDED MOTION AND REQUESTED ACTIONS:
To approve the application for the $20,000 state grant and, if awarded approve the associated budget amendment.
Funding Source: NC Office of Minority Health and Health Disparities, Division of Public Health - $20,000; WIC and CSC
revenue as matching funds (already included in current budget).
FUNDING SOURCE:
Will above action result in: New Position(s) Number of Positions: 1
Explanation: Change part-time, temporary, position to full-time position with benefits.
ATTACHMENTS:
WIC Spanish caseload chart, Budget
REVIEWED BY:
LEGAL: FINANCE: Approve BUDGET: Approve HUMAN RESOURCES:
15
COUNTY MANAGER'S COMMENTS AND RECOMMENDATIONS:
Recommend approval.
COMMISSIONERS' ACTIONS/COMMENTS:
Approved 5-0.
16
HISPANIC CASELOADTRENDS
MonthlYear Total WIC Total Hispanic % WIC Hispanic
Participation WIC Participation Participation
December 2001 2824 233 8.3
March 2002 2783 255 6.7
June 2002 2940 281 9.6
September 2002 2976 286 9.6
December 2002 2885 279 9.7
March 2003 2843 303 10.7
June 2003 2901 332 11.4
September 2003 2930 360 12.3
December 2003 2813 373 13.3
March 2004 3034 442 14.6
June 2004 3115 473 15.2
September 2004 3082 530 17.2
December 2004 3056 549 18.0
March 2005 3130 626 20.0
June 2005 3175 639 20.1
September 2005 3107 641 20.6
Unduplicated Spanish clients using interpreter services for WIC:
FY 1999-2000: 181
FY 2000-2001: 273
FY 2001-02: 348
FY 2002-03: 418
FY 03-04: 590;
FY 04-05: 869
Total unduplicated for FY 2005-06 to date is 851 clients, only 14 away from th(~
entire last fiscal year.
17
17
NEW HANOVER COUNTY HEALTH DEPARTMENT
Budget for 4/1/04-3/31/05
NC Office of Minority Health
and Health Disparities Total Budget Grant Request NHCHD
Interpreter Grant
EXPENDITURES:
Personnel (12 months 1/1/06-12/31/06)
Interpreter (Full Time) Salaries / Wages* $28,650.00 $20,000.00 $8,650.00
Taxes $2,190.00 $0.00 $2,190.00
Benefits $12,360.00 $0.00 $12,360.00
Total Personnel $43,200.00 $20,000.00 $23,200.00
Non-Personnel Expenses
Office Supplies $500.00 $0.00 $500.00
Training/Travel $300.00 $0.00 $300.00
Total Non-Personnel Expenses $800.00 $0.00 $800.00
* includes 5% merit/market
TOTAL EXPENSE BUDGET REQUEST $44,000.00 $20,000.00 $24,000.00
12/14/2005 kr
18
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18
Personnel: Pro ram Assistant (CR03)
Hours / Week..~ . ----
Weeks / Year 52
Salary 1~290, 5% merit/market ($1,365) -.
Taxes $2,19L_
Medical/Dental $12,500__
Other: Describe:Retirement $1,418
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CSC Interpreting Need
The need for additional hours to equal a full time position has been documented by the
supervisors in the respective programs, as indicated below.
CSC
New Hispanic Clients Referred to CSC Program since January 2005 = 59
Current caseload of Hispanic children= 38
Frequency of contacts- one visit per month per family
New client visit with interpreter= 2 hours
Subsequent visits= 1 Y2 hours
Many services are delayed because of unavailability of interpreters
Examples:
. Standards not always be met for time from first referral received to first home
visit (2 weeks)
. 11 different CSC program staff use the interpreters, so this complicates the
scheduling, and visits must often be rescheduled
. One of the frustrations is just getting an interpreter to be available to sit with a
CSC to make phone calls
. Postpartum/Newborn home visits for Hispanic Moms/Babies are not currently
being done because of lack of interpreter time
. Child Find and outreach cannot be offered to Hispanic families in the community
. More translation is needed of forms and letters, many times these are unique or
short notes to a family, not a routine form already available in Spanish
20
20
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
REQU EST FOR BOARD ACTION
Meeting Date: 01/09/06
Consent Item #: 5 Estimated Time: Page Number:
Department: Health Presenter: Mr. Scott Harrelson, Assistant Health Director
Contact: Mr. Scott Harrelson, Assistant Health Director
SUBJECT:
Cape Fear United Way Grant
BRIEF SUMMARY:
The Cape Fear United Way has graciously agreed to provide NHCHD with a grant of $38,000 for the purchase of a Panorex
imaging machine for the mobile dental unit. This piece of equipment would allow us a greater capability for discovering
dental abnormalities than routine x-rays. This would allow us to perform reimbursable services from the mobile unit which
could uncover dangerous abnormalities and better treat the dental customers. This is a one-time grant, for the purchase of
this equipment, with no County match required. Grant will end once equipment is purchased. Space for the equipment is
available in the Mobile Dental Unit.
RECOMMENDED MOTION AND REQUESTED ACTIONS:
Approval for acceptance of Cape Fear United Way grant for the amount of $38,000 to purchase a Panorex imaging
machine, and associated budget amendment for FY 05-06, related to the receipt of grant funds.
FUNDING SOURCE:
Will above action result in: No Change In Position(s) Number of Positions:
Explanation:
ATTACHMENTS:
iii
06-0097.d
REVIEWED BY:
LEGAL: FINANCE: Approve BUDGET: Approve HUMAN RESOURCES:
COUNTY MANAGER'S COMMENTS AND RECOMMENDATIONS:
Recommend approval.
COMMISSIONERS' ACTIONS/COMMENTS:
Approved 5-0.
21
Cape Fear Area United Way
613 Shipyard Boulevard
Suite 1 0
P.O. Bo:v; 15D
'ili lmingtc)D, He: 2:=:40 -1503
tel 910.79:::.3900
fax 910.798.3917
I^liiJ'tJ. C f au 'tJ . () r 9
Memo
To: David Rice, Director
New Hanover County Health Department
From: Lynn Pharr, President
Cape Fear Area United Way
Date: December 15, 2005
Re: Mobile Dental Unit
Earlier today, our Board of Directors approved $38,000 for a Panorex Machine for the Mobile Dental
Unit. The United Way is actively seeking solutions to our community's most pressing needs and we
feel that this program will do just that. We are honored to partner with you in this most important
venture.
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--
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NEW HANOVER COUNTY BOARD OF COMMISSIONERS
REQU EST FOR BOARD ACTION
Meeting Date: 01/09/06
Budget Amendment
DEPARTMENT: Health
BUDGET AMENDMENT #: 06-0097
ADJUSTMENT DEBIT CREDIT
Health/Administration:
Cape Fear United Way Grant $38,000
Health/Mobile Dental Unit:
Capital Outlay - Equipment $38,000
EXPLANATION: The Cape Fear United Way has agreed to provide the Health Department with a grant of $38,000 to
purchase Panorex imaging machine for the Mobile Dental Unit.
ADDITIONAL INFORMATION: This is a one-time grant with no County match required. The grant will end once the
Panorex machine is purchased.
APPROVAL STATUS: To be approved by Board Of Commissioners
COMMISSIONERS' ACTIONS/COMMENTS:
Approved 5-0.
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NEW HANOVER COUNTY BOARD OF COMMISSIONERS
REQU EST FOR BOARD ACTION
Meeting Date: 01/09/06
Budget Amendment
Consent Item #: 6.1 Estimated Time: Page Number:
DEPARTMENT: General Government/Non-Departmental
BUDGET AMENDMENT #: 06-0092
ADJUSTMENT DEBIT CREDIT
General Government:
Appropriated Fund Balance $550,000
Non-Departmental:
General Electric $550,000
EXPLANATION: 1) To budget initial $300,000 payment to General Electric for Global Nuclear/GE Aircraft Industrial
plant. First payment is to be made upon the Company securing a building permit for capital construction for
Company Facility. On May 16, 2005, the County Commissioners approved a $2.1 million incentive grant for
General Electric to be paid over a 7-year period.
2) To budget second and final $250,000 payment of General Electric Global Nuclear/GE Aircraft
Industrial plant agreement approved the Commissioners July 7, 2003 for a total of $500,000. An amount of
$250,000 was carried over from FY 04-05 to FY 05-06 for the first payment of this agreement since no payment had
been requested in FY 04-05. At that time it was not anticipated the second payment would also be requested and
due in FY 05-06.
ADDITIONAL INFORMATION: With approval of this budget amendment, $7,023,981 of fund balance will be
appropriated in FY 05-06.
APPROVAL STATUS: To be approved by Board Of Commissioners
COMMISSIONERS' ACTIONS/COMMENTS:
Approved 5-0.
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NEW HANOVER COUNTY BOARD OF COMMISSIONERS
REQU EST FOR BOARD ACTION
Meeting Date: 01/09/06
Budget Amendment
Consent Item #: 6.2 Estimated Time: Page Number:
DEPARTMENT: Sheriff
BUDGET AMENDMENT #: 06-0096
ADJUSTMENT DEBIT CREDIT
General Government:
Appropriated Fund Balance $53,176
Sheriff/Adm i n istration:
Rent $53,176
EXPLANATION: To budget rent for the remainder of FY 05-06 for Criminal Investigation Unit to occupy current
space in the old Law Enforcement Center (LEC). The lease runs through September 30, 2006.
ADDITIONAL INFORMATION: The FY 06-07 amount for three months will be $17,340. Funds will be included in FY
06-07 Budget.
APPROVAL STATUS: To be approved by Board Of Commissioners
COMMISSIONERS' ACTIONS/COMMENTS:
Approved 5-0.
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REGULAR AGENDA
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
ESTIMATED ITEMS OF BUSINESS Page
TIMES No.
5 :40 p.m. 1. Consideration of Human Relations Month Proclamation 31
5 :45 p.m. 2.1 Public Hearing 33
Special Use Permit (Remanded to Planning Board by the Board of
Commissioners 11/07/05) - Request by Blanchard, Jenkins et al for Cingular
Wireless to consider a Special Use Permit to locate a telecommunications
facility (172' monopole) in an R-15 Residential District located at 1540 Murray
Farms Road (S-537, 09/05)
6:05 p.m. 2.2 Public Hearing 49
Rezoning/Conditional Use - Request by Joe Taylor for William Ambrose to
rezone two tracts ofland totaling approximately 4.0 acres of property located at
6631 & 6639 Gordon Road from 0&1 Office & Institution to CD (1-1) Light
Industrial (Z-820, 11/05)
6:35 p.m. 2.3 Public Hearing 57
Rezoning - Request by Withers & Ravenel for Grove Park Properties to rezone
approximately 11.01 acres of property located at 5550 Carolina Beach Road
from R-15 Residential to R-lO Residential (Z-822, 12/05)
6:45 p.m. 2.4 Public Hearing 61
Rezoning - Request by Linda & Gary Meccia to rezone approximately 6 acres
of property located at 5525 Blue Clay Road from R-15 Residential to 1-1 Light
Industrial (Z-825, 12/05)
6:55 p.m. 2.5 Public Hearing 65
Special Use Permit - Request by Chris Johns for G. P. Pond & Associates to
consider a Special Use Permit to expand the parking adjacent to an existing
restaurant in an R-15 Residential District located at 5564 Carolina Beach Road
(S-544, 12/05)
7:10 p.m. Break
7:20 p.m. 2.6 Public Hearing 71
Special Use Permit - Request by David Ward concerning validity of original
Special Use Permit (S-13, 06/71)
8:00 p.m. 2.7 Public Hearing 113
Special Use Permit - Request by Danette Young for a Special Use Permit to
place a Singlewide Mobile Home on Lot 10 in Castle Farms Subdivision (S-
548, 01/06)
8:20 p.m. 3. Consideration of A ward of RFP 06-0114 and Approval of Contract 06-0114 for 117
County Telephone System Replacement and Budget Amendment 06-0099
29
8:35 p.m. 4. Consideration of Award ofRFP 06-0005 and Approval of Contract 06-0005 for 123
the Purchase of Public Safety Answering Point (PSAP) Telephone System for
the E-9ll Center Including Installation, Project Management, Training and
Maintenance
8:50 p.m. 5. Consideration of Request for Approval for Maintenance Dredging of Mason 129
Inlet and Associated Budget Amendment 2006-19
9:05 p.m. 6. Update on Elections Voting Equipment 137
9:20 p.m. 7. Meeting of the Water and Sewer District 143
9:30 p.m. 8. Non-Agenda Items (limit three minutes)
9:35 p.m. 9. Additional Items
County Manager
County Commissioners
Clerk to the Board
County Attorney
9:45 p.m. ADJOURN
Note: Times listed for each item are estimated, and if a preceding item takes less
time, the Board will move forward until the agenda is completed
30
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
REQU EST FOR BOARD ACTION
Meeting Date: 01/09/06
Regular Item #: 1 Estimated Time: Page Number:
Department: Human Relations Presenters: Carl A. Byrd, Sr. and/Marla Rice-Evans
Contact: Carl A. Byrd, Sr.
Item Does Not Require Review
SUBJECT:
Human Relations Month
BRIEF SUMMARY:
The New Hanover Human Relations Commission members request to proclaim February 2006
"Human Relations Month".
RECOMMENDED MOTION AND REQUESTED ACTIONS:
Adopt the proclamation.
FUNDING SOURCE:
Will above action result in: Number of Positions:
Explanation:
ATTACHMENTS:
.
200 6HRMPRO . WP(
ITEM DOES NOT REQUIRE REVIEW
COUNTY MANAGER'S COMMENTS AND RECOMMENDATIONS:
Recommend approval.
COMMISSIONERS' ACTIONS/COMMENTS:
Approved 5-0.
31
PROCLAMATION
BY THE
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
WHEREAS, the New Hanover Human Relations Commission, the Grcater Wilmington
Chamber of Commerce, and the Friends oflluman Relations are sponsoring Human Relations
Month; and
WHEREAS, the theme for Human Relations Month is, "Hand in Hand, Together JoVe
Can!"; and
WHEREAS, we encourage all citizens to respect and work to establish equal rights for
all persons regardless of race, color, sex, religion, age, disability, or familial status; and
WHEREAS, through practicing the principles of Human Relations Month on an cvery
day basis, we help to preserve, protect, and perpetuate the rights of each pcrson to frcedom,
liberty, and justice.
NOW, THEREFORE, The New Hanovcr County Board of Commissioners hereby
proclaims the month of February 2006 as
HUMAN RELATIONS MONTH
in New Hanover County, North Carolina and call upon all citizens ofthc Ncw Hanovcr County
area to sincerely join forces in cTeating and practicing a mutual bond of fellowship with all
citizens and resolve to accept a personal challengc to improve the status of all people through
assurance of the basic human rights of justice, freedom, and dignity.
Adopted this, the 9th day of January 2006.
--
Robert G. Grccr, Chairman
ATTEST:
Sheila L. Schult, Clerk to the Board
32
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
REQU EST FOR BOARD ACTION
Meeting Date: 01/09/06
Regular Item #: 2.1 Estimated Time: Page Number:
Department: Planning Presenter: Dexter Hayes
Contact: Sam Burgess
Item Does Not Require Review
SUBJECT:
Case S-537, 09/05 (postponed from October 3rd CC Mtg) Special Use Permit request to locate a
telecommunications facility in an R-15 District located at 1540 Murray Farms Road
BRIEF SUMMARY:
Request by Blanchard, Jenkins et al for Cingular Wirelsss to consider a Special Use Permit to locate a telecommunications
facility (172' monopole) in an R-15 Residential District located at 1540 Murray Farms Road.
RECOMMENDED MOTION AND REQUESTED ACTIONS:
The Planning Board recommends approval by a vote of 5-0 with conditions. The County Commissioners may approve,
approve with conditions, or deny the Special Use Permit.
FUNDING SOURCE:
Will above action result in: No Change In Position(s) Number of Positions:
Explanation: N/A
ATTACHMENTS:
iii iii
S-537 Staff Findings-] S-537 Pet Sum 3 maps
ITEM DOES NOT REQUIRE REVIEW
COUNTY MANAGER'S COMMENTS AND RECOMMENDATIONS:
COMMISSIONERS' ACTIONS/COMMENTS:
The Special Use Permit was denied 4-1, Commissioner Caster dissenting, on the grounds that it is not in harmony with the
area.
33
SPECIAL USE PERMIT
S- 537, 09/05; Telecommunications Facility (172' Monopole)
Request By: Blanchard, Jenkins et al for Cingular Wireless
Location: 1540 Murray Farms Road
Planning Board Recommendation
At their regular meeting on December 1,2005, the Planning Board voted 6 to 0 to
unanimously reaffirm their original recommendation for approval ofthe Special Use
Permit. The Planning Board agreed with the petitioners that alternative co-location sites
were explored and found inadequate.
County Commissioner Action
At their regular meeting on October 3, 2005, the Board of County Commissioners accepted
the petitioner's request to postpone discussion on the telecommunications facility proposal
until a meeting could be held with nearby residents. At their regular on November 7, 2005,
the Board of Commissioners remanded the Special Use Permit request back to the Planning
Board to consider alternative or co-location sites for the 172- foot monopole.
Planning Board Recommendation
At their regular meeting on September 1,2005, the Planning Board recommended approval
of the petitioner's request with conditions. The vote was 5 to O. Conditions by the Planning
Board included meeting the FAA requirements, providing a 25-foot landscape buffer, and
the tower facility not interfering with road extensions from Quail Woods and Murray
Farms subdivisions. No one was present at the meeting in opposition.
Preliminary Staff Findings
1. The Board must find that the use will not materially endanger the public health or
safety where proposed and developed according to the plan as submitted and
approved.
A. No water and sewer service will be needed by this communication facility.
B. The subject property is not located within a 1 OO-year flood area.
c. Access to the facility will be from Murrayville Road through Murray Farms Road
(public) and a 12' gravel drive running inside a 30' access easement.
D. The tower will be setback on the site approximately 186' from the nearest
property line.
E. The tower compound area (10,000 square feet) will be secured by a 8' high chain
linked fence topped with 3 strands of barbed wire at the top.
F. The fenced compound (6,400 square feet) will be surrounded by an existing
densely wooded area.
- ---~..._-_.,---.--_._-----~._-
34
2. The Board must find that the use meets all required conditions and specifications of
the Zoning Ordinance.
A. The tower site is zoned R-15 Residential. Telecommunication facilities are
permitted by Special Use Permit in residential zoning districts.
B. The proposed tower will be in compliance with all FCC requirements.
C. All towers, antenna or related structures locating in residential zoning districts
shall be located a distance equal to the height of the tower from any residential
dwelling as measured from the base ofthe tower.
D. The proposed tower (172') will meet all setback requirements. The nearest
property line is approximately 186'.
E. The nearest residential structure is 238' from the base of the tower.
F. The tower will be constructed to accommodate co-location (at least 3 additional
providers ).
G. A 25' buffer of existing trees will be preserved around the perimeter of the
fenced compound.
H. An affidavit has been submitted by the applicant verifying the need for the
placement of a new tower facility.
3. The Board must find that the use will not substantially injure the value of adjoining
or abutting property or that the use is a public necessity.
A. Similar type facilities exist in other residential districts in New Hanover
County.
B. Expansion of wireless telecommunication services can enhance emergency
communication during severe weather situations.
C. No evidence has been submitted that this tower compound will decrease property
values or exist as a health hazard to residents who live nearby.
4. The Board must find that the location and character of the use if developed
according to the plan as submitted and approved will be in harmony with the area
in which it is to be located and in general conformity with the plan of development
for New Hanover County.
A. The 1999 Land Use Plan identifies this area as Urban Transition.
B. No County regulated conservation or historic resources have been identified on
site.
--
35
Petition Summary Data
Case: S-537, 09/05
Owner/Petitioner: Blanchard, Jenkins, et al for Cingular Wireless
Existing Land Use: Vacant
Zoning History: Area 8B, July 7, 1972
Land Classification: Urban Transition
Water Tvpe: N/A
Sewer Type: N/ A
Recreation Area: N/ A
Traffic Volume: Data Not Available
Fire District: Wrightsboro VFD
Watershed & Water Quality Classification: Smith Creek, SW
Aquifer Recharge Area: Secondary Recharge
Conservation/Historic/Archaeologic Resources: No historic or archaeological
resources located on site
Soils: Murville (Class III)
Septic Suitability: Class III = Severe Limitations
Schools: N/A
-~--~--.--._----- .~ ._...._.._---------------,-~-_._--
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----
39
STATE OF NORTH CAROLINA BEFORE THE NEW HANOVER COUNTY
PLANNING BOARD
NEW HANOVER COUNTY AND
BOARD OF ADJUSTMENT
APPLICATION NUMBER:
In re:
NEW CINGULAR WIRELESS PCS, APPLICANT'S PROJECT NARRATIVE
LLC'S APPLTCA nON FOR A SPECIAL AND
USE PERMIT TO CONSTRUCT A STATEMENT OF COMPLIANCE WITH
In-FOOT MONOPOLE THE NEW HANOVER COUNTY
TELECOMMUNICATIONS ZONING ORDINANCE
ANTENNAE SUPPORT STRUCTURE
l.
STATEMENT OF APPLICATION
New Cingular Wireless PCS, LLC ("Cingular" or "Cingular Wireless"), pursuant to the
requirements set forth in the New Hanover County Zoning Ordinance ("Ordinance"), files this
Special Use Permit Application to construct and operate a In-foot monopole
telecommunications support structure so that Cingular may Improve its wireless
telecommunications services to the citizens of New Hanover County under its license issued by
the Federal Communications Commission.
IT.
BACKGROUND
Modern wireless communications include far more than cellular and digital phone
networks. Today, wireless communications include voice, advanced messaging, data, and even
photographic communications. The Federal Communications Commission (FCC) uses the term
"broadband PCS" to describe mobile telephone services and high speed data services (such as
wireless modems used in conjunction with personal computers), and the term "narrowband PCS"
to describe advanced two-way messaging and lower speed data services.
The convenience, safety and efficiency benefits achieved through digital phones, pagers,
and other wireless communications services have created a tremendous demand for these and
other burgeoning services. It is projected that, within the next decade, fuJly three-quarters of the
American population wiJl utilize a wireless phone or pager to communicate on a daily basis The
FCC has designated and auctioned a limited number of radio spectra for wireless communication
providers to deliver wireless communications services across the United States Cingular holds
one of those licenses. Increasingly, Cingular and other wireless communication licensees are
competing with existing telecommunication services, giving consumers more flexibility and
lower prices.
(OOOO6194.DOC:I}
--~----~
40
The FCC's grant of wireless licenses comes with a mandate that the licensees
substantially complete construction of their respective communication systems expeditiously.
To complete their systems, licensees must develop an infrastructure or system of strategically
placed, low-powered antennae. Because these antennae operate on a "line-of-sight" basis, each
antenna covers a limited geographic area. The antennae are therefore placed in such a way as to
provide "contiguous coverage" throughout a given region. In searching for a site upon which to
locate a telecommunications antenna, Cingular first evaluates existing facilities (see "Statement
of Necessity" below). Where there are no existing structures of sufficient height that would
support telecommunications antenna and meet its coverage needs, service providers such as
Cingular must build a support tower in the area where coverage is needed. The proposed support
structure has been strategically located to meet the coverage needs of Cingular, as well as other
wireless service providers who currently have a gap in coverage in the area.
III.
PROJECT DESCRIPTION
To provide contiguous coverage of wireless communications services in New Hanover
County, Cingular respectfully requests a Special Use Permit to develop a telecommunications
facility to be located on a leased parcel of land owned by Mona Faye Black, R03500-002-004-
000, located at 6233 Murrayville Road. The parcel is zoned R-15. The R-15 zoning district
allows the development of Communication Facilities including Towers as a permitted special
use. The proposed tower is a 172-foot monopole structure with a small equipment cabinet for
each collocating service provider to be situated at the base of the tower on concrete pads. The
tower and 100' X 100' (10,000 square-foot) compound will have room to accommodate the
antennae and equipment of Cingular Wireless and at least three additional providers. The
proposed compound will be .25 acres of the 31.30-acre tract on which it is to be located. The
tower will set back on the full tract approximately 186 feet from the nearest property line. The
site will be accessed off of Murraysville Road via Murray Farm Road and a 12-foot wide gravel
drive running inside the 30-foot wide access and utility easement. A small equipment cabinet for
each co-locating service provider will be located at the base of the tower on concrete pads. The
tower and 80' X 80' fenced compound will be secured by an eight-foot high chain link fence,
topped with three strands of barbed wire around the top. The fenced compound will be set back
into a densely wooded area and will be surrounded by woods on all sides. The proposed tower
will comply with all FAA regulations as well as all of the applicable regulations set forth in the
New Hanover County Zoning Ordinance The site provides for ample parking, though little will
be required, and controlled traffic movement. In short, this site is an excellent location for a base
station facility to provide Cingular's wireless telecommunications services to a currently
unserved portion of New Hanover County
{00006194.DOC; 1 }
-----
41
TV.
STA TEMENT OF NECESSITY
Mobile wireless telecommunications systems, by definition, are not connected to the
existing "land-line" telephone system of wires. Instead, the voice and data signals travel through
the air to receiving and transmitting antennae. The antennae must be at a height sufficient to
simultaneously provide coverage for users in the surrounding territory as well as "hand off" calls
as users travel from one coverage area to the next. In unserved areas or where an antenna's
capacity has been reached, calls are either "dropped" when a caller enters such areas and calls
can not be made. Where such coverage problems arise or where gaps in Cingular's coverage
exist, Cingular issues a search ring within which well-placed antennae would fill the gap or
resolve the capacity problem. Within the search ring, several alternatives, including existing
structures, are evaluated. Each alternative is considered by a team of engineers and other
specialists who select the best location. Considerations in selecting a site include the size of the
tract of land, the absence of other buildings nearby, zoning requirements, elevation, topography,
accessibility, natural visual buffers, and proximity to current and prospective users
Cingular has identified the need for a wireless facility to meet its capacity and coverage
needs in and around this area Based upon an exhaustive analysis of available locations and
existing structures within the search ring and beyond, Cingular concluded that there were no
existing wireless communication facilities or any other structures of sufficient height anywhere
in or near the search ring on which Cingular could attach its antennas and achieve the necessary
coverage to "hand off" calls to contiguous coverage areas. After exhausting all reasonable
efforts to collocate on existing structures, Cingular determined that the proposed site was the
very best location to provide Cingular subscribers with optimal coverage, based upon all of the
factors discussed above. The proposed facility is designed to cover unserved portions of New
Hanover County, including a significant portion of 1-40, as well as heavily traveled interstitial
roadways, residences and businesses in the area surrounding the proposed facility, and provide
consistent contiguous coverage with existing sites in the area.
V.
STATEMENT OF COMPLIANCE WITH THE ORDINANCE
In support of this application, Cingular respectfully submits the following information in
addition to the Application for Special Use Permit and site plans, which, taken together, establish
that this proposal meets all applicable requirements of the New Hanover County Zoning
Ordinance.
(00006194.DOC;1 }
_.~-------- ~----_._- --~-----
42
Section 69.17: Telecommunication Communication Facilities, Cellular and Related Towers
These facilities may be located by right in the I-I and 1-2 Districts and by special use permit in
all other zoning districts. In addition, these facilities shall be subject to the following:
A. Any tower, antenna or related structure in non-residential districts shall set back from any
residential dwelling a distance equal to the height of the tower as measured from the base
of the tower.
Not Applicab/e. The wireless te/ecommunicationsfacility proposed hy Cingular will he
constructed in an R-I5 zoned district.
B. All towers, antenna or related structures locating in residential districts shall be located a
distance equal to the height of the tower from any residential dwelling as measured from
the base of the tower. In no case shall a tower, antenna or related structure be located
closer than 50 feet from any residential property line.
As shown on page Z3 of the site plans suhmitted with this application package, the
proposed I 72-foot monopole will meet all setback requirements. There are no residential
structures within I72 feet from the base of the tower. The nearest residential property
line is 186 feet ft'om the tower base and the nearest residential structure is 238 feet ft'om
the base of the tower. Please refer to pages Z4A and Z4B of the site plans.
C. A landscaped buffer pursuant to the minimum requirements of this Ordinance.
In compliance with Section 67 of the Ordinance, a 25:foot hliffer of existing trees will be
preserved around the perimeter of the fenced compound. See page Z4B C?f the site plans
and area photographs included with this application package which provide additional
information as to the proposed new tree line and existing mature vegetation and densely
wooded area that exists at the site that will he utilized as part C?f the naturalland.r;;cape
bl{ffer.
D All applicants seeking approval for the construction of any new towers, antennas, and
related structures that require special use permit approval shall submit written evidence to
demonstrate that collocation on any existing tower, antenna or usable structure in the
search area for the new is not reasonable or possible.
Please refer to Cingular Wireless' RF Engineer's Justification Report included with this
application package. There are no existing structures on which Cingular could attach its
antenna and that would provide the desired coverage Cingular requires in order to meet
the needs of its customers.
E. All towers shall be constructed to accommodate collocation. Towers over I 50 feet in
height shall be engineered to accommodate at a minimum two additional providers.
Towers 150 feet or less in height shall be engineered to accommodate at a minimum one
additional provider.
{00006194.DOC;1 f
43
The proposed telecommunications antenna support structure .will be a 172:foot monopole
and will be able to accommodate the antennas and equipment of Cingular Wireless and
at least three additional carriers. Please refer to pages Z4B, Z5 and Z6 q[the site plans.
F. All applicants seeking approval shall also submit a written affidavit that the construction
or placement of such structures meets the provisions of the Telecommunications Act of
1996, the National Environmental Policy Act of 1969, FCC Rules Section 1.1311,
1.1312, 1.1307 and all other applicable federal, state and local laws
Please refer to the Affidavit ofM Gray Styers, Jr., NC Zoning Counsel for New Cingu/ar
Wireless PCS, LLC, included with this application package in compliance with this
requirement.
G. Any tower and associated equipment which was lawfully constructed under the terms of
the Ordinance, which is now considered a nonconforming improvement, may continue or
be reconstructed as a conforming improvement even though the tower and associated
equipment may not conform with the provisions of this Ordinance for the district in
which it is located. Towers and associated equipment may only be enlarged and/or
relocated if the enlarged or relocated tower eliminates the need for an additional tower,
provides additional collocation opportunities on the tower, or provides additional antenna
space on the tower; and provided further that the enlargement and/or relocation shall be
in conformance with the following regulations and design limitations specified in Section
6917.G.1.
Not Applicab/e to this application and Special U.se Permit request.
H. Cellular and PCS antennas to existing structures shall not add more than six feet to the
overall height of a structure.
Not Applicable to this application and Special Use Permit request.
Section 71: Special Use Permits Issued by the Board of County Commissioners
71-1: General Requirements
3. Upon receiving the recommendations of the Planning Board and holding a public
hearing, the Board of County Commissioners may grant or deny the Special Use Permit
requested. The Special Use Permit, if granted shall include such approved plans as may
be required. In granting the Special Use Permit, the Commissioners shall find
(A) That the use will not materially endanger the public health or safety if located
where proposed and developed according to the plan as submitted and approved.
100006194.IJOC;1}
~----- --------_.._~~-~- - - -------
44
The proposed use will not adversely affect the public health, safe{y, or general
welftlre of the residents of New Hanover County. Thousands of facilities such as
this one are located in the State of North Carolina (and tens of thousands
nationwide), and none present any threat or danger to public health or safety.
Radio emissions from the facility will comply with all federal laws, including
those established by the Federal Communications Commission (FCC) and will
fall well below emission standards for this type offacility as established by the
American National Standards Institute (ANSI). Please refer to Cingular
Wireless' RF Engineers' Emission's Report included with this application
package.
Moreover, as previously mentioned, the forecast of demand for wireless
communications services will increase 40 to 50 percent over the next decade.
Coupled with the growth of the area, the proposed location of the
communications tower will increase public safety, because residents of and
travelers through the proposed coverage area It'il! be able to place and receive
calls during emergencies. Over thirty million 1~mergency-911 calls are placed
annually through wireless telephone services. Most importantly, in times of
natural disasters (especially hurricane-jorce storms) wireless communications
consistently emerge as the essential and often only means for emergency
communication. New Hanover County residents will be able to access 911
emergency services in the event severe weather downs traditional land-line
communications services. Our towers have withstood hurricane force winds-
including the winds of Hurricane Andrntl that reached over 200 m.p.h.-enabling
citizens to contact emergency services during the days, and even weeks, when
traditional land-line communications were shut down. Thus, the citizens of New
Hanover County will directly benefit from the expanded availability of wireless
telecommunications services.
(B) That the use meets all required conditions and specifications of the Zoning
Ordinance.
This particular site is located in an 1<.-15 zoning jurisdiction. The tower will he
constructed and maintained in compliance with the ordinance provisions
governing special uses in an R-15 zoning jurisdiction and wireless
telecommunications facilities and will not he contrary to the purposes stated in
the regulations.
The proposed use will meet or exceed the minimum area, setback and other
requirements and applicable regulations of the ordinance.
lhe use proposed here is allowed as a special use in the R-15 zoning district. All
of the development standards and specific requirements for the special use permit
and wireless telecommunications facilities are met or exceeded by this proposed
facility,
{00006194.DOC; 1}
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45
(C) That the use will not substantially injure the value of adjoining or abutting
property or that the use is a public necessity.
The proposed use will not adversely 'ifJect the use ar any physical attribute ar
development of adjoining or abutting properties or other neighborhood uses. The
tower will set back on the full tract approximately 186 feet north of Five Acre
Road, 186 feet from the nearest property line and 238 feet from the nearest
residential structure. The tower and 80' X 80'fenced compound will be secured by
an eight-foot high chain link fence, topped with three strand.. of harhed wire
around the top. The compound will set back in a densely wooded area and a 25-
foot buffer of trees will be provided around the perimeter of the fenced compound.
See page Z4B of the site plans and area photographs included with this
application package which provide additional information as to the proposed new
tree line and existing mature vegetation and densely wooded area that exists at
the site that will be utilized as part of the natural landscape buffer.
Ihe proposed use will not create a nuisance or hazard. It will generate no more
than 2-4 vehicle trips per month (for maintenance purposes). It is an unmanned
facility, which should not create any need for emergency access; nor will il
generate glare, odor, noise, etc. The impact of this use on the road network is
minimal compared to other uses in this area.
The proposed use will certainly not be detrimental to the use or development or
physical attribute af acljoining ar abutting property. The real estate value studies
that have heen done on this question have indicated empirically and ohjectively
thai a low intensity utility use such as the kind af lower proposed here daes not
adversely affect the value of contiguous property.
(D) That the location and character of the use if developed according to the plan as
submitted and approved will be in harmony with the area in which it is to be
located and in general conformity with the plan of development for New Hanover
County
The location and character of the use will be in harmony wilh Ihe area in which it
is to he located and in general conformi~y with the plan of development for New
Hanover County.
The proposed use, requiring only a small 100' X 100' leased area (if the 31.30-
acre parcel owned hy Mona Faye Black, will not adversely cifJect the plan of
developmenl of the area where it is proposed to be localed and will camply with
all applicahle condWons, specifications and development standards of the
Ordinance. Ihe facility will be constructed and maintained in accordance with
alllaca1. slale and federal regulations. In addition, the proposed lower will nol
adversely impact the existing infrastructure system of New Hanover County; the
proposed use only requires minimal po.wer and telephone service,' no water or
{00006194.DOC;1 }
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46
sewer services are needed for the operation of the facility. Thus, the facility will
have almost no impact on the County's utility demands.
The proposed use is not a service facility that is open to the public. It will
generate no more than 2-4 vehicle trips per month (for maintenance purpose.5). It
is an unmannedfacility, which should not create any needfor emergency access;
nor will it generate glare, odor, noise, etc. The impact of this llse on the road
network will be minimal compared to other uses in this area.
The use proposed here is allowed as a .5pecialllse in the R-I5 zoning district. All
of the development standards and .5pecific requirementsfor the .5pecialllse permit
and wireless telecommunications facilities are met or exceeded hy this proposed
facility.
VI.
CONCLUSION
This proposed telecommunications facility will be an integral part ofCingular's and other
wireless carriers' personal wireless telecommunications systems, bringing wireless digital
services to the citizens of New Hanover County. At all times, Cingular and its agents will
cooperate with New Hanover County in every way possible in the permitting, construction, and
operation of this proposed facility.
Respectfully submitted on this, the 3rd day of August, 2005.
I
By
{OOOO6194.DOC;1)
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47
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48
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
REQU EST FOR BOARD ACTION
Meeting Date: 01/09/06
Regular Item #: 2.2 Estimated Time: Page Number:
Department: Planning Presenter: Dexter Hayes
Contact: Steve Candler
Item Does Not Require Review
SUBJECT:
Case Z-820, 11/05 Rezoning/Conditional Use request to rezone two tracts of land totaling
approximately 4.0 acres located at 6631 & 6639 Gordon Road from 0&1 Office & Institution to
CD (1-1) Light Industrial
BRIEF SUMMARY:
Request by Joe Taylor for William Ambrose to rezone two tracts of land totaling approximately 4.0 acres of property located
at 6631 & 6639 Gordon Road from 0&1 Office & Institution to CD(I-1) Light Industrial.
RECOMMENDED MOTION AND REQUESTED ACTIONS:
The County Commissioners may approve or deny the conditional use rezoning portion of the request. If the zoning is
approved the County Commissioners must approve or approve with conditions the accompanying special use permit. The
Planning Board recommended approval 7-0 with the attached conditions.
FUNDING SOURCE:
Will above action result in: No Change In Position(s) Number of Positions:
Explanation: NIA
ATTACHMENTS:
iii iii iii
Z-820-CD-Staff Summary-R Z-820-Staff Summary-Re Petition Summary Data map, site plan
ITEM DOES NOT REQUIRE REVIEW
COUNTY MANAGER'S COMMENTS AND RECOMMENDATIONS:
COMMISSIONERS' ACTIONS/COMMENTS:
The Conditional Use Rezoning was approved 4-1, Davis opposing. The accompanying Special Use Permit was approved
with conditions 3-2, Davis and Pritchett opposing.
49
CASE: Z-820, 11/05; PETITIONER: Joe Taylor for William Ambrose
Special Use Permit: Mini Warehouse Facility in a CD (1-1) Light Industrial District
Planning Board Recommendation
At their regular meeting on November 3, 2005, the Planning Board accepted the petitioner's
request to continue the conditional use proposal until the December 1,2005 regular
Planning Board meeting.
Preliminarv Staff FindiDl!:s
1. The Board must find that the use will not materially endanger the public health or
safety iflocated where proposed and developed according to the plan as submitted
and approved.
A. The subject property is located within the Ogden VFD.
B. Proposed access to the site is from Gordon Road and Ogden Park Drive.
C. County water and sewer will selve the site.
2. The Board must find that the use meets all required conditions and specifications of
the zoning ordinance.
A. The petitioner is proposing three (3) one story buildings totaling 79,887 square
feet.
B. The petitioner is also proposing a ] ,200 square foot office building.
C. A site plan has been submitted that can meet the landscaping, setback, and buffer
requirements of the ordinance. However, the tree survey for the site needs to be
finalized.
D. Several significant trees are located on site and will need to be mitigated.
3. The Board must find that the use will not substantially injure the value of adjoining
or abutting property or that the use is a public necessity.
A. The western property line ofthe subject property abuts Farrington Farms
subdivision which is in a R-lO District. Zoning on the adjacent parcels to the
east is 0&1.
B. Zoning across Gordon Road from the property is I-I Light Industrial.
C. The subject property is across the street from Ogden Park and Eaton Elementary
School.
4. The Board must find that the location and character of the use if developed
according to the plan as submitted and approved will be in harmony with the area
in which it is to be located and in general conformity with the plan of development
for New Hanover County.
A. The site is classified Developed on the County's 1999 Land Use Plan. The
purpose of the Developed class is to provide for continued intensive development
and redevelopment in existing urban areas.
- -~-,_._._"_....._-----,- -~---~._---
50
Recommended Planning Staff Conditions
I) Protection of the three significant oak trees located near the front of the property.
2) Contine the lighting to the site and away from adjoining residential neighborhoods.
3) Install an eight-foot high fence adjacent to Farrington Farms subdivision in the buffer
yard.
4) Limit hours of operation to 6:00 am to 9:00 pm.
5) Install an eight-foot aluminum estate fence behind the office buildings to accommodate a
larger street yard and preserve the natural tree canopy.
6) The applicant meet with the surrounding neighbors prior to the January 9, 2006 County
Commissioners meeting.
5!
CASE: Z-820, 11/05; PETITIONER: Joe Taylor for William Ambrose
REQUEST: 0&1 Office & Institution to CD (1-1) Conditional Use Hcavy Indus.
ACREAGE: 4.0
LOCATION: 6631 & 6639 Gordon Road
LAND CLASS: Developed - The purpose of the Developed Land class is to provide
for continued intensive development and redevelopment of existing
urban areas.
Planning Board Recommendation
At their regular meeting on Dccember 1,2005, the Planning Board voted 7 to 0 to
recommend approval to rezone 4 acres and recommend a Special Usc Pcrmit for the
location of mini-storage units in an 1-1 Light Industrial Conditional Use District.
Several residents spoke in opposition at the meeting. The Planning Board
recommended several conditions on the permit. The conditions are:
1. Protection of the three significant oak trees at the front of the property.
2. Confine the lighting to the site and away from the adjoining residential
neighborhoods.
3. Hours of operation limited to 6:00 a.m. to 9:00 p.m.
4. Install an eight-foot fence adjacent to the Farrington Farms subdivision in
the buffer yard.
5. Install and eight-foot aluminum estate fence along Ogden Park drive.
6. Mini storage buildings will setback bchind the office buildings to
accommodate a larger street yard and preserve the natural tree canopy.
7. The applicant will meet with the surrounding neighbors before the January
9,2006 New Hanover County Commissioners meeting.
Planning Board Action
At their regular meeting on November 3,2005, the Planning Board accepted the
petitioner's request to continue the conditional use-rezoning proposal until thc next
regular Planning Board meeting on December 1,2005.
STAFF SUMMARY
The subject property is located near the intersection of Gordon Road and Ogden
Park Drive. Farrington Farm subdivision abuts the property to the west. The petitioner is
requesting a rezoning from 0&1 Office & Institution to CD (1-1) Light Industrial for a
mini storage facility consisting of three (3) one story structures.
------------ ------------~.--_.._--_._..._-
52
Across Gordon Road from the subject site is an established 1-1 Light Industrial
Zoning District, which has a variety of uses including convenience service stations, office
and institution uses along with industrial uses. Last year, the Board of County
Commissioners approved a Conditional Use 1-1 Light Industrial Park adjacent to the
Gresham Place Apartments further west and along Gordon Road. Several conditions
were placed on that project including a condition prohibiting mini warehouses.
The zoning on the north side of Gordon Road is primarily residential. Nearby
uses are predominately institutional type uses with a public park and Eaton Elementary
School. Both are typically found in established neighborhoods. The subject property is
in a transitional area between these land uses and the Farrington Farms subdivision to the
northwest. The site is heavily wooded with several significant trees along the front.
In August 2002, the Planning Board unanimously recommcnded approval of a
rezoning request for 0&1 for a portion of the subject site. At the same meeting, however,
the Planning Board voted 5-1 to recommend denial of a special use permit for a
convenience store on the property. Ultimately, the Board of County Commissioners
denied the zoning change. In November 2002, the Planning Board heard a rezoning
request for B-1 Neighborhood Business which was modified to 0&1 and eventually
approved by the Board of Commissioners. Recently, a rcquest to rezone the same
property to CD (1-1) for a mini storage facility was turned down by the Commissioners in
August 4, 2004.
Given its location at the entrance to Ogden Park, the triangular shape of the
property and close proximity to residential and institutional uses located nearby, the
Planning staff recommends that the property remain 0&1.
53
Petition Summary Data
Z-820, 11/05
Owner: Joe Taylor for William Ambrose
Existine Land Use: Old Residential Structure
Orieinal Zonine: Area 8B (July 7, 1972)
Land Classification: Developed
Potable Water Type: Public (Located nearby)
Sewer System Type: Public (Located nearby)
Recreation/Facility/Area: Ogden Park
Traffic Volume: 27,452 ADT near Market Street & Gordon Road (March '04 Data)
Fire District: Ogden VFD
Watershed and Water Quality: Smith Creek, C (SW)
Aquifer Recharee Area: Primary Recharge Area
Conservation/Historic/Archaeoloeic Resources: No historic or archaeological resources
Located on site
Soils: Leon soil (Class III)
Soils Septic Suitability: Class III = Severe Limitations
Schools: N/A
- -~~----_...- - -~ ---------------
54
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55
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56
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
REQU EST FOR BOARD ACTION
Meeting Date: 01/09/06
Regular Item #: 2.3 Estimated Time: Page Number:
Department: Planning Presenter: Dexter Hayes
Contact: Steve Candler
Item Does Not Require Review
SUBJECT:
Case Z-822, 12/05 Rezoning request to rezone approximately 11.01 acres of property located at
5550 Carolina Beach Road from R-15 to R-10
BRIEF SUMMARY:
Rezoning request by Withers & Ravenel for Grove Park Properties to rezone approximately 11.01 acres of property located
at 5550 Carolina Beach Road from R-15 Residential to R-1 0 Residential.
RECOMMENDED MOTION AND REQUESTED ACTIONS:
The County Commissioners may approve or deny the petition. The Planning Board recommended approval 7 to O.
FUNDING SOURCE:
Will above action result in: No Change In Position(s) Number of Positions:
Explanation: NIA
ATTACHMENTS:
iii iii
Z-822-Staff Summary-RePetition sum Z- map
ITEM DOES NOT REQUIRE REVIEW
COUNTY MANAGER'S COMMENTS AND RECOMMENDATIONS:
COMMISSIONERS' ACTIONS/COMMENTS:
Approved 5-0.
57
CASE: Z-822, 12/05 PETITIONER: Withers & Ravenel for
Grove Park Properties
REQUEST: R- J 5 Residential to R-I0 Residential
ACREAGE: 11.01
LOCATION: 5550 Carolina Beach Road
LAND CLASS: Developed - The purpose of the Developed Land class is to
provide for the continued intensive development and
redevelopment of existing urban areas.
Planning Board Recommendation
At their regular meeting on December 1, 2005, the Planning Board voted 7 to 0,
agreeing with staff recommendations, to recommend approval of the petitioner's
request to rezone 11.01 acres of property from R-15 residential to R-I0 Residential.
STAFF SUMMARY
The subject property is located southwest of Monkey Junction and has road
frontage along a portion of Dunhill Lane. The Dunhill Lane access connects with the
Carolina Beach Service Road to the east. The property is presently zoned R-15
Residential. Brewster Place subdivision, adjacent and south of the site is zoned R -10
Residential. This area was rezoned in April 1996. Properties fronting along both sides of
Carolina Beach Road are zoned B-2 Highway Business and are a part of a large
commercial node located at Monkey Junction.
As noted with earlier rezoning petitions near the subject property, land use
patterns in the Monkey Junction area have undergone a significant transformation since
the early 1980's. Several prominent strip centers have evolved that include restaurants
and retail type offices along Carolina Beach Road with residential land uses primarily
west of this major road corridor. Changes in the land use patterns near Monkey Junction
over the past twenty years have largely been a result of the extension of the County's
water and sewer systems.
The petitioner's rezoning request from R-15 to R-lO Residential makes logical
sense based on the existing residential land use patterns located nearby. As stated, the
1999 Land Use Plan classifies this area as Developed. This class provides for continued
intensive development and redevelopment of existing urban areas. Public water and
sewer are also located nearby. Any future residential development of this property would
have access via Dunhill Lane and Carolina Beach Road to a variety of goods and
services. For these reasons and the fact that the request is an extension to the existing R-
10 District to the south and west, staff recommends approval of the petitioner's rezoning
request to R-] O.
------- -------..-.--
58
Petition Summary Data
Case Z-822, 12/05
Ownerl Petitioner: Withers & Ravenel for Grove Park Properties
Existin2 Land Use: Vacant
Ori2inal Zonin2: Area 4 (April 7, 1971)
Land Classification: Developed
Potable Water Type: Public (located nearby)
Sewer System Type: Public (located nearby)
Recreation Facility/Area: River Road Park
Traffic Volume: 26,354 ADT near Carolina Beach & S. College Rd. (May '03 MPO
Data)
Fire District: Myrtle Grove
Watershed and Water Quality Classification: C(SW) Motts Creek
AQuifer Rechar2c Area: Primary Recharge Area
Conservation / Historic / Archaeologic Resources: No historic or archaclogical
resources located on site
Soils: Leon soil (Class III), Lynn Haven (Class III)
Buildin2 Suitability: Class III=Severe Limitations
Schools: Codington Elementary
-"-"---.--..---..--
59
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60
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
REQU EST FOR BOARD ACTION
Meeting Date: 01/09/06
Regular Item #: 2.4 Estimated Time: Page Number:
Department: Planning Presenter: Dexter Hayes
Contact: Steve Candler
Item Does Not Require Review
SUBJECT:
Case Z-825, 12/05 Rezoning request to rezone approximately 6 acres of property located at
5525 Blue Clay Road from R-15 to 1-1
BRIEF SUMMARY:
Request by Linda & Gary Meccia to rezone approximately 6 acres of property located at 5525 Blue Clay Road from R-15
Residential to 1-1 Light Industrial.
RECOMMENDED MOTION AND REQUESTED ACTIONS:
The County Commissioners may approve or deny the petition. The Planning Board recommended approval 5 to 0 with
Chairman Conlogue abstaining.
FUNDING SOURCE:
Will above action result in: No Change In Position(s) Number of Positions:
Explanation: NIA
ATTACHMENTS:
iii iii
Z-825-Staff Summary-Re Petition sum Z- map
ITEM DOES NOT REQUIRE REVIEW
COUNTY MANAGER'S COMMENTS AND RECOMMENDATIONS:
COMMISSIONERS' ACTIONS/COMMENTS:
Approved 5-0.
61
CASE: Z-825, 12/05; PETITIONER: Linda & Gary Meccia
REQUEST: R-15 Residential to 1-1 Light Industrial
ACREAGE: 3
LOCATION: 5525 Blue Clay Road
LAND CLASS: Resource Protection -The purpose of the Resource Protection
class is to provide for the preservation and protection of
important natural, historic, scenic, wildlife, and recreational
resources.
Planning Board Recommendation
At their regular meeting on December 1, 2005, the Planning Board recommended
approval of the petitioner's request to rezone approximately 3 acres of property
from R-15 Residential to T-llight Industrial. The vote was 6 to O.
STAFF SUMMARY
The subject property is located in the northern portion of New Hanover County,
west side of Blue Clay Road and is presently zoned R-15 Residential. Property abutting
the petitioner's request to the north and west is zoned I-I Light Industrial. These
properties have been zoned 1-1 for several years. The western most tract is presently
being used as an office park that is home to Vision Software and NCDOT facilities.
Several established residential neighborhoods (Wood Haven & Highland Dunes) exist
along the east side of Blue Road. To the south is the Yahweh Center that received a
Special Use Permit approval several years ago.
The northern part of New Hanover County has witnessed very little growth over
the past 10 years. This lack of growth is due to the lack of public water and sewer
services located in the area. A sewer package treatment facility is located west of the
petitioner's property and presently serves the office park and the Yahweh Center. Plans
are presently underway by the County to expand this system in the future.
The petitioner's request to rezone the back portion of his property from R-15
Residential to 1-1 Light Industrial may be the result of several existing uses on site.
Presently, a couple of accessory buildings and a RV are located near the front portion of
the property. Given the proximity of the property to an adjacent and existing I-I District
and the fact that the front portion of the property will remain residential, Planning staff
recommends approval.
-- --~~~~._----_._._-
62
Petition Summary Data
Case Z-825, 12/05
Owner/ Petitioner: Linda & Gary Meccia
Existine: Land Use: Existing Uses
Orie:inal Zonine:: Area 8A (July 7, 1972)
Land Classification: Resource Protection
Potable Water Type: Private
Sewer System Type: Private
Recreation Facility/Area: Castle Hayne Park
Traffic Volume: 5,320 ADT near Blue Clay & Holly Shelter Roads (June '04 MPO
Data)
Fire District: Castle Hayne
Watershed and Water Quality Classification: Prince George Creek C(SW)
Aquifer Rechare:e Area: Secondary Recharge Area
Conservation / Historic / Archaeoloe:ic Resources: No historic or archaeological
resources located on site
Soils: Murville soil (Class III)
Soils Septic Suitability: Class III = Severe Limitations
Schools: N/ A
- ------.----
63
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64
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
REQU EST FOR BOARD ACTION
Meeting Date: 01/09/06
Regular Item #: 2.5 Estimated Time: Page Number:
Department: Planning Presenter: Dexter Hayes
Contact: Steve Candler
Item Does Not Require Review
SUBJECT:
Case S-544, 12/05 Special Use Permit request to expand the parking adjacent to an existing
restaurant in an R-15 Residential District located at 5564 Carolina Beach Road
BRIEF SUMMARY:
Special Use Permit request by Chris Johns for G.P. Pond & Associates to consider a Special Use Permit to expand the
parking adjacent to an existing restaurant in an R-15 Residential District located at 5564 Carolina Beach Road.
RECOMMENDED MOTION AND REQUESTED ACTIONS:
The County Commissioners may approve, approve with conditions, or deny the Special Use Permit. The Planning Board
voted 6 to 0 to recommend approval.
FUNDING SOURCE:
Will above action result in: No Change In Position(s) Number of Positions:
Explanation: NIA
ATTACHMENTS:
iii iii
S-544 Staff Summary- R map, site plan Petition Summary Data
ITEM DOES NOT REQUIRE REVIEW
COUNTY MANAGER'S COMMENTS AND RECOMMENDATIONS:
COMMISSIONERS' ACTIONS/COMMENTS:
Approved with one condition 5-0.
65
SPECIAL USE PERMIT
S-544, 12/01; Non-Residential Off-Street Parking for 28 Spaces
Request By: Chris Johns for G.P. Pond & Associates
Location: 5564 Carolina Beach Rd - Rucker Johns
Planning Board Recommendation
At their regular meeting on December 1,2005, the Planning Board voted 7 to 0 to recommend
approval of the petitioner's request for a Special Use Permit to expand the parking adjacent to the
existing restaurant. The Planning Board placed one condition on the permit.
Preliminary Staff Findings
1. The Board must find that the use will not materially endanger the public health or safety
where proposed and developed according to the plan as submitted and approved.
A. Access to the facility will be from the existing parking lot with connections to Dunhill
Lane and Carolina Beach Service Rd
B. Fire Service is available from the Myrtle Grove Station nearby.
2. The Board must find that the use meets all required conditions and specifications of the
Zoning Ordinance.
A. The property is zoned R-15 Residential. Commercial Parking may be permitted in
Residential Districts by Special Use Permit.
B. Buffer yards and Setbacks have been shown on the plan.
3. The Board must find that the use will not substantially injure the value of adjoining or
abutting property or that the use is a public necessity.
A. Similar type facilities exist in other residential districts in New Hanover County.
B. No evidence has been submitted that this project will decrease property values of
residents who live nearby.
4. The Board must find that the location and character of the use if developed according to the
plan as submitted and approved will be in harmony with the area in which it is to be located
and in general conformity with the plan of development for New Hanover County.
A. The 1999 Land Use Plan identifies this area as Urban Transition which allows for more
intense development.
13. The property adjoins a Commercial Center south of Monkey Junction.
C Site lighting shall be located so as not to shine on adjacent residential propel1y.
Suggested Conditions
A. Existing tree line and vegetation should remain along Dunhill Lane.
---------_._.._---------~---_.-
66
Petition Summary Data
S-544, 12/05
Owner: Chris Johns for G.P. Pond & Assoc.
Existine Land Use: Vacant
Zonine History: Area 4 (April 7, 1971)
Land Classification: Developed
Water Type: Public (located nearby)
Sewer Type: Public (located nearby)
RecreationlFacilitv/Area: River Road Park
Traffic Volume: 26,354 ADT near Carolina Beach & S. College Rd (May '03 MPO Data)
Fire District: Myrtle Grove
Watershed and Water Qualitv: C(SW) Motts Creek
Aquifer Rechare:e Area: Primary Recharge Area
ConservationlHistoric/Archaeoloeic Resources: No historic or archae logical resources located
on site
Soils: Leon soil (Class III), Lynn Haven (Class III)
Buildine Suitability: Class III = Severe Limitations
Schools: Codington Elementary
~----_._--_._._-_._-_.~
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69
This page intentionally left blank.
70
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
REQU EST FOR BOARD ACTION
Meeting Date: 01/09/06
Regular Item #: 2.6 Estimated Time: Page Number:
Department: Planning Presenter: Dexter Hayes
Contact: Steve Candler
Item Does Not Require Review
SUBJECT:
Case S-13, 06/71 Request concerning validity of original Special Use Permit Issued at 1512
Burnett Road
BRIEF SUMMARY:
Request by David and Violet Ward concerning validity of original Special Use Permit.
RECOMMENDED MOTION AND REQUESTED ACTIONS:
The Planning Board voted 6 to 0 to recommend that the Special Use Permit is valid to the Board Commissioners for their
consideration.
FUNDING SOURCE:
Will above action result in: No Change In Position(s) Number of Positions:
Explanation: NIA
ATTACHMENTS:
iii
S-13 Staff Findings-F 1 map, 37 page attachment
Note: Please see Interoffice Memo which lists the documents contained in the 37 page attachment. Item 5 on the memo
describes another attachment package containing 86 attachments. Due to the length this packet is not included in the
agenda packet, but the documents are available for review in the County Manager's Office.
ITEM DOES NOT REQUIRE REVIEW
COUNTY MANAGER'S COMMENTS AND RECOMMENDATIONS:
COMMISSIONERS' ACTIONS/COMMENTS:
The item was pulled.
71
SPECIAL USE PERMIT
S- 13,06/71;
Request By: David and Violet Ward
Location: 1512 Burnett Road
Planning Board Recommendation
The New Hanover County Planning Board in regular session on Thursday, December 1,
2005 voted 6 to 0 to recommend to the New Hanover County Commissioners that Special
Use Permit 13 is valid and not a violation of the New Hanover County Zoning Ordinance
Section 109.1, paragraph (e).
Staff Summary
David and Violet Ward claim that a Special Use Permit issued in June of 1971 to Homer Ward
(deceased) is invalid. The permit issued to Homer Ward was to construct a bulkhead, boat ramp
and pier in Myrtle Sound near Carolina Beach. David and Violet Ward claim that Homer Ward
provided false information when obtaining the permit and are now challenging the validity of
Special Use Permit-13. The challenge is based upon the following section of the New Hanover
County Zoning Ordinance. The Board of Adjustment heard a similar appeal on August 23, 2005.
The Board of Adjustment concluded that the permitted uses occurring on the site had vested the
permit.
Section 109: Vesting Rights
109.1: Any site-specific development plan approved by the County pursuant to this Ordinance
shall terminate as follows:
(e) Following recommendation of the Planning Board and upon findings by the County
Commissioners, by ordinance after notice and a hearing, that the landowner or his representative
intentionally supplied inaccurate information or made material misrepresentations which made a
difference in the approval by the approval authority of the site specific development plan.
"--,~-~----- ~'-----"..._.._.__._-~
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73
New Hanover County
Planning Department
County Annex Building
230 Marketplace Drive, Suite 150
Wilmington, NC 28403
Dexter L. Hayes P 910.798.7165
Director F 910.798.7053
INTEROFFICE MEMO
December 30, 2005
Susan Wynn
Executive Assistant to the County Manager
Re: January 6,2006 CC Meeting
Dear Susan:
The following is a description for each of the documents submitted by the
planning department for Item 6 of the Public Hearings items for their January 9,
2006 County Commissioner Meeting. Let us assume that attachment one (1) of
thirty-seven (37) is the letter addressed to Holt Moore and signed David and
Violet Ward.
1. Attachment one (1) came from David and Violet Ward.
2. William A. Raney, Jr., Attorney for David and Violet Ward, submitted
attachments fourteen through thirty-seven (14-37).
3. Attachments 2-11 came from the planning staff file, but were originally
submitted by Kenneth Shanklin, Attorney for Tim and Donnie Ward.
4. Ann Hines, Chief Zoning Enforcement Official for New Hanover County,
submitted attachments twelve and thirteen (12 & 13).
5. The other attachment package containing eighty-six (86) attachments was
submitted by Kenneth Shanklin, attorney for Tim and Donnie Ward, as a
formal response to the formal complaint by David and Violet Ward.
Please contact our office if we can be of further assistance.
Sincerely,
Steve Candler
Senior Planner
- --------- ---_.~--
74
Mr. Holt Moore October 21, 2005 David N. Ward
Assistant County Attorney Violet P. ward
320 Chestnut Street 1508 Burnett Rd.
Wilmington, N.C. 28409 Wilmington, N,C. 28409
Dear Holt,
This is a request to be placed on the earliest available County Commissioner
meeting agenda. Citing county ordinance 109.1 (E) and upon the evidence that we have
recently acquired from The Army Corps of Engineers. We wish to formally ask for a
hearing with the Board of County Commissioners November 7, 2005. This is in reference
to Special Use permit 13 issued to Homer Ward at 1512 Burnett Rd. We have acquired
evidence that will show that Homer Ward did knowingly violate this ordinance. Several
weeks ago in a meeting with Ann Hines, David Weaver, and Kemp Burpeau; we
discussed this issue at great length. Also I have discussed this issue with you Holt, and I
do greatly appreciate your help, and respectively ask for this hearing. You have been so
kind, and helpful, and all of us in the Tucker Burnett Subdivision do wish to thank you.
Yours Truly,
David Ward
Violet Ward
.______.___ __"___m'_"~ -
75
Mr. Gre.r/~',.
Mr. Sander '4
Col. Denison/ s
Mail ~ --'~f' .
OPER rt' / ~
SAtMC 14 Januaq 1969
''- ;V(I,
/"'(r,.,.'
}7.,br
HI'. Homer H. Ward
2914 Iske Shore Drive
Wllaington, H. C. 28401
ltt . . -- - -_.-
- .' .~
,
'V Dear Mr.. Wari:
0 Reference is .~ t010ltt appUea1:iOll dated 14 ~ 1968 fo:r a per-
11ft to ~ a bu1lchead. bOat rap Ud pier in Myrtle Sound near
0 CarOlina Beach. N. C. .
N. In ;response to 111 publ.:l.c DOtiee dated 2 DecetIber 196&, J.asued to announce
-'.~~ your proposal to aU known interested pertiee, the S1:ab! of Horth car0-
lina bas not furnished their eoaeeut 1:0 your work. In cases where pr~
0 posed ~ 1$ ~j~onable but WeD S:'tat:e authorities decUne to give
their eouent to the -n, it is DOt usual for "the Corps of Engineers to
0- issue a pendt s1nee 1t becomes praetleally of no value and may he re-
~.. garded as an aef: of dUeourtesy. .
. . . ij
"" - 'I1terefore. you are 1.~ tba't your proposal :is unobjectionable and a
. ,'-- .,. p!rId t will be issued Yten the eonsem: of tb8 Sta1:e 1s furnished this
office . - - ...-------
S~re1y your8, .
PAUL S. DENISON
Colonel, Corps of Engineers
Di8triet EngiDeet'
Copy fundshed:
Dit'. t !fC. Dept of Water & Air.
Reeouree~ Rale~ He 27603
-------,._-~. ---~
76
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Col. Denison/s(a\
Hail J;~I
'. OPER ) )-e..--
SAWKS (Pe.ndt No. 12-:-69) 10 March. 1969
Mr. Boler H. Ward
2914 Ulke Sb.ote Drive
Wilmington, H. C. 28401
0- -
0 Dear Mr. Ware!: . '
~, In accoriaD!!e with your written nqwtat dated 1,& lIoveIiber 1968, tbere is
Q inelo8ecl a ~ autilorialDC the .~oa of rhMt r8f, bulkhead,
and a pier 1D Myrtla Sound aar. C81"oUDll' Beacl1 in New ~~. CoaDty, H~ c.
Q> Ifeny 1I&terlf&1 ...... iD the 1oCirt1on or p1BDe attbe structUre or work
~ aX'll!t fouQd ~~ on ~ of anfoftM.a .. altered CODcU:t1one or
ot:heJowlse, nrleed p1aae -.:Id .. ....a.ttwd pr~1y ~ the District En-
-",: gill8er ill __ tlIa't tlIase ....18ed plau. if foImd UDObject1OD11bla, My
.,,~
Q. :reef.. the a~ ~ by law beto.re ~OD ia begun.
(:) Your attenttoD Is calJacI to CGDditioa (l) of the tDClased pera11; which n-
quUee tile ,..tttee to DGtify thi. offtce ~lat1ve to the ealN?neenen1:
0--. and ~0Il elates. ' ".P- .
". In l'e8pDD88 to ., public lIIItic:e dat:ecJ 2 DeeeIIber 1968, leeued 'to 8IIIKIUDCe
your prOposal to aU bote ~ put:le$, the State of Korth CU'oUna
aM c. c. wtW8, Inc., ~e1led ~ uts. A eopy each of the1r letters
18 iuc1oeed. Ia eoanect:l.oa with tha last ~ in pIl"8P'4ph tJOf the
State's letteI', your aU:..UGD is 1avlb!d to 8I"'C'f.1 coad1ttoa (k) ill 'the
pem1t. 1D eemaeetiou w1:tIa tbe lat:Wr fftII ~. G. WJ.1Usi1ne., your atten-
tloa is inVited 'to the "lIVe ... f11ftr au&ched to the pendt:.
Si~ly yOurs,'
3 Incls PAUL S. _ISON
1. Perm:I:t 116. 12-69 C01oM1. Corps of ~.-.e'PS
wI..,., acrt::1oa flier Diat:rlct F.lIg:1oeer
2. Cy Itr 6 Hu 69 fa State .,
8. Cy ltr 10 Dee U fa
C. G. Wi111st Inc.
Copy fumished wI. 1ael.8:
JlIr. t JfC Dept of water .. Air
/ Resources, ,,1elgb, He 27603 . .
......
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77
- ;f
-
STATE OF NORTH CAROUNA
DEPARTMENT OF WATER AND AIR RESOURCES
ROBERT W. SCOTT S. VERNON 8TEYEN8. .JR.
GOVERNOR CHA....AN
P. D. DAVIS P. GREER .JOHNSON
W ALTER II. FRANKLIN VIClE-CHAJRMIdrf
.J. NELSON GIBSON. .JR.
J. M. .JARRETT DR. ROBERT A. R088
WAYNE MABRY W. laRADY STEVENS
.J. EUGENE PENLAND RAYMOND S. TALTON
.J. AARON PREVOST GLENN II. TUCKER
GEORGE E. PICKETT. D'IIEC1'OR
T"ELEPH_1l 829.3003
E. C. HUBBAJU) AssT. DIRacTaR
TELEPHOHa 829_3008
P. O. Box 93512
RAUlEJGH. N. C. Z780a
~ March 6, 1969.
-
.... Colonel Paul S. Denison
0 District Engineer
u. S. Army Engineeer District, Wilmington'
0 Corps of Engineers
Post Office Box 1890
N' Wilmington, North Carolina 28./,iOl
- Dear Colonel Denison:
0 This is in response to your public notice dated December 2, 1968,
0 concerning an application by Mr. Homer H. Ward for a permit to construct
a bulkhead, boat ramp, and a pier in Myrtle Sound in the AIWW near
0-.- Carolina Beach in New Hanover County, N. C. The views of'.affected State
" agencies ha~ been obtained.
The State has no objection to the proposed work. The granting of
an easement to fill to Mr. Ward has been approved by the Governor and
Council of State. It is requested that the use of the pier be so controlled
as to not add polluHon to the adja;;;I:ii;-waters. -................- _"..w__._.._____
"'---
Request that the applicant be advised of the requirement that earth-
moving equipment Which operates in publicly owned tidelands and navigable
waters within the state be registered by the owner of the equipment with
this Department.
Sincerely, ~~
~PiCke"
cc: Mr. Frank Turner
Mr. J. M. Jarrett
__'_"_.._..~...u..._...._.__ _mO' _M.~._._________
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(a) That the work sball be subject to the supervision and approval of the Distric:t Engineer, Corps of Engineers,
in charge of the locality, who may temporari)y suspend the work at any time, if in his judgment the interests of navi-
gation so require.
(b) That any material d:redged in the prosecution of the work herein authorized shall be removed evenly and no
large refuse piles, ridges aemss the bed of the waterway, or deep holes that may have a tendency to cause injury to
navigable channels or to.the banks of the waterway shall be left. If any pipe, wire, or cable hereby authorized is laid
in a trench, the formation of permanent ridges aeross the bed of the waterway shall be avoided and the baek IDling
shall be so done as not to increase the cost of future dredging for navigation. Any material to be deposited or
dumped under this authori:latioD. either in the waterway or on shore above high-water mark, shall be deposited or
dumped at the locality shawn on the drawing hereto attached, and, if so prescribed thereon, within or behind a good
and substantial bulkhead or bnllrn-ih,. such as will prevent escape of.the material in the waterway. If the mate-
rial is to be deposited in the harbor of New York. or in ita adjacent or tributary waters. or in Lang Island Sound, a
permit therefor must be previously obtained from the Supervisor of New York Harbor, New York City.
(e) That there shall be no unreasonable interference with navigation by the work herein authorized.
(d) That if inspections or aDY other operations by the United States are nec:essary in the interest of navigation,
all expenses connec:ted therewith shall be borne by the permittee.
(e) That no attempt shall be made by the permittee or the owner to forbid the full and free-use by the public of
all navigable watets<<t or adjacent to the work or struel;ure.
("if (/) That if futnre opeirations by the United States requfre an alteration in the position of the strueture or work
herein authorized. or if. in the opinion of the Seereta.ry of the Army, it shall cause ~ble obstruc:tion to the free
- navigation of sait! water, the owner will be required upon due notice from the Secretary of the Army, to remove or
alter the structural work or obstrud;ions caused thereby without expeDSe to the United States. so as to render naviga-
"q"" tion reasonably free, easy. and 1DIObstructed; and if. upon the expiration or revocation of this permit. the structure,
fill, e.xmvation. or other modification of the watercourse hereby authorized shall DOt be completed, the owners shall,
o without expense to the United States. and to such extent and in such time and mauner as the Sec:ret8ry of the Army
may require, remove all or any portion of the uncompleted strueture or fill and restore to its former condition the navi-
o gable capacity of the watereourse. No eIaim sball be made against the United States on account of any such removal
or alteration..
("14 (g) That the United States sb.a11 in no ease be liable for any damage or injury to the structure or work herein
authorizad whieh may be CSUI2led by or result from futnre operatioru; undertaken by the Government for the conserva-
tion or improvement of Da'rigation. or for other ptll'plllleS. and no claim or right to eompeJlB8tion shall aeerue from
- any IlUch damage.
d (h) That if the display.of lighta and signals on any work ~e1'eby authorized is DOt otherwise pro-vided for by law,
such lighta &nd signals as may be prescribed by the U. S. Coast Guard, shall be installed and maintained by and at the
expense of the owner.
o (i) That the permittee shall notify the said district engineer at what time the work will be commenced, and as
far in adVlLllCe of the time at .........-"'leI1leIl"t as the said district engineer may specify, and shall also notify him
~ promptly, in writing, of the ~ of work, suspension of work, if for a period of more than one week,
resumption of work. and ita completion. a
'" m That if the structure or wm:Ir herein authorized is not completed on or before ______~______________________ day
of 'Dec..bet------ . 19--12. this permit, if DOt previoualy revoked or specifically extended. shall ceaae and
be null and void.
(k) That: the pendt1:ee shall c~ prOlllp'tly with 8DY regu1a't1ODS. coaditlons.
or lnaUOOliona affecting the writ hereby autlaclrised if and when 188Ued by the
Feder@. tlfter Po11utf.on Coatro1. Ad1d1)iatratfa Dtii/- the State water pollutiOn.
cObtrol ageaey 'bav1Dg jur1ed1e1:iall to .'bate .. pI...........Ol vater paUuttan." Soob reg-
ulattOl1l8 t cGDditiaD8 or lnatruations in effect .. 'preeer1hed by t1le Federal Water
Pollution CoDtrol MII1Diatra1:iGD Gl" State .ifeDe7 are hereby .-de a eODdiHon of
t1d8 peJ'llit..
By authority of the Secretary of the Army:
/],_LA~.~.-~
-t7a. -- . --
PAUL S.. DENlSOW
=~l: =:e:: EDgi1leers
ME~~ 1721 (Civil) 'ftb r"..n'l,_del.>> JWa " .w..t Upt" ..-bIch may be .- 01ltII-.....cL
L .. ~........ wna: ........11181-1
-_._~-_.~--_._-----
80
. . ..
DEPARTMENT OF THE ARMY
NOTE.-It is to be understood that this instrument does not give any property rights either in real estate or mate-
rial, or any exclusive privileges; and that it does not authorize any injury to private property or invasion of privat8
rights, or any infringement of Federal. State, or local laws or regulations. nor does it obviate theneeessityof obtaining
Smte aasent to the work authorUed I., --'I" _ ~ 'IHR . -1'1' 8F 'IHR F~.BIUi. QS1'BIHFiHRI'r Il8 PMl All 89H
eI!lItI:fS 1'i!!l1"lJJll:.te am~ f!6 !V..~lf. (See Cumming. v. ChWgo, 188 U. S.,.410.) _Illl_
PERMIT
W1111lfqgt01l Diatrlct, Corps of Engineers.
WUaiagtOIl, Horth Carolina ----. 1%9
--to- Mlu-ch
Mr. Bomer B. WU'd
2914 Lab Shore Drbe
0 WUaington, H. C. .28401
. .
Dear Sir: -..-.
-
'q" Ref'erring to written request dated 14 Nogeaber 1968
a
Q I have to inf'ol'BlYou that, upon the recolIBendation of' the Chief of Engineers.
N and under the provisions of Section 10 of' the Act of' Congress approved March 3.
- 1899. entitled -An act making appropriations for the construction, repair, and
0 -. .
preservation ot certain publ.ic works on rivers and harbors, and f'or other pur-
0
0- poses, - you are hereby authorized by the Secretary of' the AI'lIW.
"
"- t.o construct: a 1Ju1.khead, bctIS.~a::R~..........t.)
in Myrtle Sound about ~u.Jie~. ~L~ the A1:lant1c Intra-
coastal Wate:rway.
... el..ar.....!:.K.~ .!I.e. ~ ~ !odl.t.t..1a mI., and tentba hD _ delIaIte poIat Iu.
tile _ -............ """"" or IleIow _ thIaa' ~ by polat. of _-.)
in accordance with the plans shown on the dl'a..ing at tached hereto
(Or oI<I...rI...., 1dw lILo n_ or _ oIeh1te i!IoetifIeatIaD marb.)
"PropoeecI Pier Portion Tueker-8urnett Sllb-DiV., Myrtle Grove SOlfOd. Ncwember 9,
196891
SUbject to the following conditions:
I
------_._~---
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"- . - . u~ s. ARMY~lN~R.DlSTRICT.'w1~!NG1.'ON' .N.
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84
EXHIBIT
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85
,
COUNTY OF NEW HA,NOVER, NORTH CAROUNA
ORDER AFFIRMlNG DECISION
OF CHIEF ZONl1'l"G ENji'ORCEMENT OFFiCIAL
The Board of Adjustment for the County of New Hanover, held a public hearing on
August 23, 2005 to consider application number ZBA-756, submitted by Violet P. and David
Ward, an appeal from the determination by Chief Zoning Enforcement Official Ann Hines, that
Tim and Donnie Ward continued to have a valid special use permit for the property located at
1512 Burnett Road, in Wilmington, North Carolina, to use the property as a commercial marina.
Having heard all the evidence and argwuents presented at the hearing, the Board makes the
following FINDINGS OF FACT and draws the following
CONCLUSIONS:
1. The Special Use Permit at issue became vested initially under the common law
principles found in the case law because there was sufficient activity and expenditures during
the period after the permit was issued to so vest.
2. The Board docs note that the Appellants cited the failure to meet the vested rights
statute requirements as a basis that the permit either did not become vested initially or
eventually lapsed, but the Board fmds this irrelevant as staff has indicated that their basis for
concluding that the permit becanle vested initially was the common law vesting found in the
case law, not the vesting rights statute, and once it became vested under those principles, it
continued to run with land, regardless of the level of activity which followed, as described in
the fmdings below.
3. The Special Use Permit at issue did not lapse due to a lack of activity on the site
at some point after the issuance of the permit.
4. The Appellants' primary contention, as stated in the appeal paperwork, Was that
the subject penuit lapsed because of inactivity on the site. However, the Zoning Ordinance
states that the conditions of a permit run with the land and shall be binding 011 the original
applicants, their heirs, and assigns. Inherent therein is the fact that the permit itself runs with
the land. In the absence of any legal authority to the effect that a permit, once activated,
lapses from inactivity, the Board concludes that the subject permit continues to be active and
runs with the land, regardless of whether the activity described in the permit is ongoing.
The preceding CONCLUSIONS are based upon the following findings:
1. The sale of fuel and snacks, along with some limited rental of wet boat slips
occurred on the site both before and after issuance of the special use permit.
'") Drinks, fishing supplies, fuel and motor oil were sold on the site in the early
L..
1 970s.
3. Boats docked at the subject property for the purposes described above during the
-----
86
early 1970s.
4. A beer license was in existence for the subject property, issued to Homer \Vard, at
a minimum, during the years 1974,1978, and from 1982-1983.
5. Gas tanks and pumps were installed on the site in 1975.
6. The site ceased being used as a marina in or around 1980, which cessation lasted
at least ten years.
Based upon the preceding Conclusions and Findings of Fact, the Board hereby affirms
the determination of the Chief Zoning Enforcement Officer.
II ~ ' ;?CCJ.
Ordered this day of _6'/;";_____
rL)/~ ~.
L~-'
-' -.. ;f~?r'/~
Secretary to the Board ./C airm .- ~
NOTE: If you are dissatisfied ""rith the decision of this Board, an appeal may be taken to the
Superior Court of New Hanover County within 30 days after the date this order is served on you.
See Section 123-1 of the New Hanover County Zoning Ordinance. (1/4/93)
_.---~_..~- --'-'-~-- .--
87
STATE OF NORTH CAROLINA BEFORE THE NEW HANOVER COUNTY
COUNTY OF NEW HANOVER PLANNING COMMISSION
IN THE MATTER OF TERMINATION )
OF SPECIAL USE PERMIT #13 ) MEMORANDUM OF PETITIONERS
ISSUED TO HOMER H. WARD ON ) DAVID AND VIOLET WARD IN SUPPORT
JUNE 7, 1971 ) OF TERMINATION
)
BACKGROUND
A special use permit was issued on June 7, 1971 to Homer H. Ward
for a marina on land owned by Homer Ward on Burnette Avenue and
adjacent waters. The application was considered by the New Hanover
County Planning Commission prior to consideration by the County
Commissioners. The Petitioners, David Ward and his mother Violet
ward, live on the property owned by Violet Ward adjacent to the Homer
Ward property.
The Petitioners contend that the special use permit was obtained
by the land owner or his representatives by intentionally supplying
inaccurate information or by making material misrepresentations which
made a difference in the approval by the County Commissioners of the
site specific development plan.
ORDINANCE PROVISIONS
8109.1 (e) of the New Hanover County zoning ordinance provides In
pertinent part:
5109.1: Any site specific development plan
approved by the County pursuant to this Ordinance
shall terminate as follows:
(e) Following recommendation of the
Planning Board and upon findings by the County
---------
88
Commissioners, by ordinance after notice and a
hearing, that the land owner or his
representative intentionally supplied inaccurate
information or made material misrepresentations
which made a difference in the approval by the
approval authority of the site specific
development plani
OFFICIAL RECORD
The Planning Board is entitled to take official notice of the
County records. The County records on this issue consist of the
following:
1- Minutes of the Planning Commission (Board) at the time this
item was considered. (Exhibit 1)
2. Minutes of the County Commissioners meeting of June 7, 1971.
(Exhibit 2)
3. Site plan showing existing and proposed development of the
property. (Exhibit 3)
4. Special use permit dated June 7, 1971. (Exhibit 4)
REPRESENTATIONS AND INFORMATION SUPPLIED BY
HOMER WARD OR HIS REPRESENTATIVES
1- The Planning Commission (Board) minutes indicate that the
application lS to expand a marina. This establishes that Ward
represented that a marina already legally existed at the site.
2. The County Commissioners minutes indicate that
representations were made as follows:
a. "Mr. Ward started the marina before the area was zoned. "
2
-~ ----
89
b. "Mr. Mallory (planning director) . showed the
commissioners a map on whi ch Mr. Ward has shown what he
plans in the future. " (Presumably this is the site
plan contained in the County records) .
c. "Mr. Ward informed the planning commission he has
permits from the Corps of Engineers and State for
dredging. "
d. " [MJost of the dredging and filling has been done."
THE REPRESENTATIONS WERE MISREPRESENTATIONS
1. There was no existing marina.
a. The structures authorized by a Corps of Engineers permit
issued in 1969 was for a pier and boat ramp only. No
mooring pilings were permitted and no dredging was
permitted. (Exhibit 5, 5 pages)
b. Two of Homer Ward's sons have offered sworn affidavits
in a related proceeding that the marina was constructed
and operated "after the issuance of special use permit
#13" (Exhibit 6, 2 pages) ; and "after the special use
permit was issued. " (Exhibit 7, 3 pages) .
c. Testimony of witnesses who lived near or frequented the
site during the period from March 7, 1969 when the Corps
of Engineers permit was issued and June 7, 1971 when the
special use permit was issued is that no marlna
3
.~-~---
90
operations were occurring prior to the time the special
use permit was considered by the County Commissioners.
d. Services such as the fuel dock were not begun until 1976
(Exhibit 8) .
2. "Mr. Ward started the marina before the area was zoned. "
a. The sworn affidavits of Tim Ward and Donnie Ward
(Exhibits 6 and 7 show that the marina was not In
operation until after the special use permit was issued
on June 7, 1971.
3. Mr. Ward informed the Planning Commission he has permits from
the Corps of Engineers and the State for dredging.
a. The Corps of Engineers in 1969 did not permit dredging
(Exhibit 5) .
b. No State permit was ever issued for dredging (Exhibit
9) .
4. Most of the dredging and filling has been done.
a. Any dredging was done illegally (Exhibit 10)
b. No permit was ever issued to dredge (Exhibits 5 and 9).
c. It is a material misrepresentation to represent that
dredging has been done without indicating that the
dredging was not lawfully done.
MISREPRESENTATIONS MADE A DIFFERENCE IN THE APPROVAL
Virtually all of the factors considered by the Planning Commission
(Board) and the County Commissioners were misrepresentations. The only
4
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91
conclusion that can be drawn lS that the factors contained in the
minutes were the factors that were deemed important and were used as
the basis for granting the special use permit. Accordingly, the
standard for terminating the permit under n09.1(e) is met and the
Planning Board should recommend a termination of the permit to the
County commissioners.
A termination does not unfairly or unduly affect the property
owner as no marina operations have been carried out on the property for
many years. Even if the 1971 special use permit lS terminated, the
property owners may still proceed with requesting a special use permit
for any new or expanded marina operations. In fact, the current owner
is currently pursuing a special use permit which has to go through the
same procedural process and findings whether it is considered a new
application or an amendment of an existing permit.
CONCLUSION
The petitioners respectfully request that the Planning Board
recommend to the Board of Commissioners that they terminate special use
permit #13 in accordance with the provisions of ~109.1(e) of the New
Hanover County zoning ordinance.
5
92
Respectfully submitted this 1st day of December, 2005.
WESSELL & RANEY, L.L.P.
By: W.O.
William A. Raney, Jr
Attorney for Petitio rs
107-B N. Second Street
P.O. Box 1049
Wilmington, NC 28402
Telephone: (910 ) 762-7475
NC Bar No. 5805
WAR\environ\R05-304-001
6
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93
Page 37.2
- 3 -
2. A nine acre parcel of land (Shady Haven Subdivision) located East of nine acre p
U.S. 421 and Wc.st of S. R. jFl492at the western extension of Seaview of land CSb
Road horn R-1S (Residential) to R-IO (Res idential) Haven Subdi
Nr. Nallory stated that t~is property was to be used as a Mobile Home
Subdivision. He also stated that the basic difference between the R-l5 and
R-IO District is size of individual lots for single family structure. R-IO
allows lots of 10,000 square feet if a. water sys tem is provided that meets
the requirements of the Health Department. Mr. Mallory said that the Planning
Department recommends approval of this petition. Mr. von Oesen asked about an
existing pond within the subdivision. Mr. Mallory stated that the pond would
be filled prior to approval of the final plat.
Mr.. Cantwell made a motion. to recommend approval of this request to
County Commissiorers... Mr. Emmart seconded the motion and it was approved by
thememb ers.
APPLICATION FOR SPECIAL USE PERMIT (COUNTY): Mt. Pilgrim
Missionary
Baptist Chu
1. Application to expand Mount Pilgrim Missionary Baptist Church on
Car.olina Beach Road (detached kitchen facility). The property is in an
R-1S Zone.
~Ir. Mallory stated that the Planning Department has no objections to the
Special Use Permit but the develoPer should be required to resubm'it a sketch
that is drawn to scale, . showing the boundaries of the lot, church extensions
correctly located. and if the extension is. to be connected to .the church.
. Mr. Emmart made a motion to recommend approval to the County Commissioners
subject to the petitioner resubmitting his sketch. Mr. Davis seconded the
motion and it was approved by the members.
2. Application to expand the Special Use (Marina) located on lots I, 2, 3,& 4 Special Use
between Burnet~venue (S.R. 1527) and Myrtle IGrove Sound. The. property (Marina) on
}s in a~ R-15 ~one. . - ~ 1,2,3,&4 be
Burnett Ave
> - .Mr. Mallory st:ated thiii:.the Planning Department recommenDs approval of the Myrtle Grov
Special U~e Permit .subject to the. following condition.s:
I, That 50% of the. off-street parking should be .25 feet in length.
2. That the' sign.should not be larger than 32 sq. ft. and should not
be illuminated.
3. That no. construction of boats shall be permitted on the lot.
4. That when the proposed club hou~e isconst:ructed, additional off-
street parking be provided in accordance with the Zoning
Ordinance..
5, That sales and services connected with the operation of the club
ho.use facility shall be .incidetital to the marina's operation.
6. That the sale .of boating and fishing supplies except gasoline and
oil .s.hall be in an enclosed structure.
7. That no smoking signs shall be posted at each gasoline point.
Discussion followed concerning larger parking spaces for cars with boat
trailers. It was agreed that. in No. 1 above the length. of 507. of the off-
street parking spaces be increased to 32 feet in length.
Mr. van Oesen made a motion to recommend approv!,l of t:he Special Use
Permit to the County Commissioners subject to the conditions .listed by the
Planning Department.. It was seconded by Dr. Pickard and !\pproved by the
: memhers.
PROPOSED AMENDMENT TO COUNTY ZONING ORDiNANCE:
1. Amend Article V Sectiot:l55, .Subsection 55-3 by adding the following:
(5) Research facilities
Mr. Hallory stated .that this was the amendment that had been discussed
at the May 5, 1971 meeting to allow research facilities in a B-2 District as
a Spedal Us e~
Dr; Pickard m~ved th!\t the Planning CDmmission recommend approval of the
amendment to .the County ,Commi$sioners, It was seconded by Mr. Cantwell and
approved by thememhers.
T 1 OTlIER BUSI1i
OTHER BUSINESS: ..... .. . ---.
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94
- -
. ~...--J. ~=-- -"------~-
~-----~ ~.,--
~}'.l:Iu'l!es. of ~1.'I.\~ m;;W1:1.t\C ~JUllB -7. 1921 - ( oOlltl'lNUED) - (i;
\
ronL!C U~t.'ftI:UG B1'EQIAu USE P1!:Rl11TS - (
~ ,
~r. ll.a.rriU opened Ru,b),.:ie heu~Ilf5 on ~lloW~ng '8~.:.181 Ufle pe:m~ :
~ . . . v
l.. Applic6tlon to ~xpabd Moun~ Piljrim ~ie8iona~ Baptist Church on C8rolina Besoh
Road. {del:flobed. kitcben !aoutt,. The property is ill an n-1.5 Zon.e.
2. ApPlication to expand the apocial U~e (Marina) located on lata 1. 2, ~t & 4.Qu-
tW84!1l Burnett Aven:Uo e.nd l'l1rtle Grove Sound. The propertJ' ilJ in an 11-15 Zone.
No. 1 _ Mount Pi:l,tt'i1ll ttiesiontlQ' :Baptist Ohuroh was diSCUl'IIJed !i'::1t. There Wll.l!I no
eQ~ent !ro~ enrOlle presaut. -
Mr. Mallor1 stated tbie request waG considered b1 the PlBnningUo~issiottat.tbeir last
llfteting and the 001ll.i8s100 recollllllends e.pproval of the ~q\l.B8ted. *tecial use pe1'J\it t liub.1ec~ ·
to revision of the sketch plen that was su~1tted with their appl cation. . All of the items
t~~ we~ OD ~he plana wer~ round to be nov located propar17 Gnd it ~be~ would re$ub~it the
- plan 35 itehQ\\ld be d.1"'a"m to scalf!. the Plann1D6 OQlItlisslol1 does recouend that tbill l'Ipecial
. use pertrlt be iasued.../ .
\ - lto, 2 _ rt.a:dl1ll lItaa di$cuased J18:J;1:J. ~.~ V6ro no objectiona.
Hr. Mallorr si<llted Mr. Ward. .t.rtl~d the Marina before tlhs area wu zoned and shovt)d tho
O()1ll1\liuionera a up on vb1.<:l1 Hr. WaN hila sboW'l1 what be t1ans in t.he tl1ture, 80 tbat he will
not: haV. to oo.e bllc}: rcqu..1i~ epeoi.1 uee t>e:t'd.tlJ eac 101... 1'S1:'.. \lard intoned the nan-
ning 001llDi,ea1on he hall pU1Il.ih rea the COt.'pB ot Eogineera and abate r"r dre~iD.l$ and. twat
oC tlhe dredging and rl111.n$ haD 'been dOne. Tho Plarm.in& n.pll1:nenJ. re'3Q_eOOIl istfl1snce or
Il~oial use pe:rait, nbJeell to the !oll.owtngs
~. ~~ ~ ot ~he ort_street pa~ B~ftOeS b9at least ~2 feet in 1ensth.
2. Proposed sign Dot to be l.a~er than 32 square feet in 8iz~ - non-illu.inated.
3. Tha1; no cQtLlilbruo1;1.on of bollte be por1l\ittEld on the 1.011.
4. VhoUP~Qposed ~lub hQuse is OODstrueted additional. crr-street parking S~8C88 be ~ro-
vided in ...ccordanee with *ohe zonins Ordinence.
~. All sales and aerd.oell con,nM;t.ed lrith the o:P6ratiotl ot tlhe o1~b f'lloiU"-T 8ha1.1 be in-
oid.",ta1 to the -.rlM operatiol1.. 0..,
6. Sa1.e of boating and !ishing lIUppU.. except Bale of gllSo1.1.ne 'Uld 011 eh.ll be !J."()I'&
an eneloBed at'Nctu.re. .
7. ~o s.okiP6 9igns shall be pasted a~ Baoh gQsaline poin~.
tlr. Ball aoved,aeconded \r.1 Mr. l'l.arka, that slleobl use perdta b~ sranted in both in-
at\Ul.eea. lN~eQt to ll1eetins the rtlqulr1J.enta nOOlllaended b1 the Pla1U1i:~ OClmIJ81Qn. Motion
C!lrried una l\Iou81~.
("\.zOl'itNG ~ IN VI(lnrI~ OF W!UfiNG-'J.'OK OO:\'.ltmE -
. . Rr. g1:(or,- atate 'tihl) piai1ni.ng Dep;;tJient b3.s been )forking on o1;ner areas tOl.' count}>
toning and at .eeti~ in Mey a .a~ was presented. to the ~lannin6 Oommi~$ion tor tropoaed
!lOlling of area' aroUll WilUll6ton Oollege llnd at that tilao 1.10 wu voted to hold t II pub1.1e
~ hell!'iag in June. out just riOt.' ~o advertising tbs1 reoe1v-ed llOra WUIllingt9tl OoJ.1oge 19 going
to request lItu:le::d1tion whic will .thot the p~QPond 1oniU@;, l'IO th\'l 1'1mning Couiuion i IS
going to ahel.vll this area until l.~ter.
~ After discussion, Mr. B.~ri8s ~equested ~. Mal1cr,r to present to the Planning Qommiesion
the COllllltl.asion.,ra' views of the de!lil'lIbilit~ of h!ivit1fS Ii public hellt'ln..; at an early d.ate on
~bdB Matter. Tne Board '11$8 or the.opinion lh sbould SO ahead with ~onLng ot this area.
~tlIllG OF :PORTER t S molt. ~ -
fir. l'1allo:Q' -p:re:unte .1IIap ot Porter' B l'Ieok Ana going 1000 feat 0:-1 the northern side or
u. S. 17 vW,<:h b baa'.l.eslly re'8id~nti.8.1 &ud. stated the Pla.nIl1ns Depart'rtenil will recollllllend. 1110151
of it be ~oned ~~15 or R-20 ~ith .xception of two buainoeaea at the in~eraeotion. ~rliest
date publio hearing can be h~ld would be first Oommiuuioners' meeting ill Jul~.
ttr. \.Iillialne 1lI0V'fid, seconded by Hr. Oxen!eld, that public \learing be eohed\\led fot' ~otlil"'
.~eB No.5 ror first meeting in July w~ch yill be on Tuasd~y, Jul~ 6. Motion carried
-unanimously.
nW>OR'1' UN WA.TJ!:tl..SREll 1'ROOllAJ1 -
Mr. 80m a~.. Dislit'let CQ1\Sel'V8.tioniBtt U. s. Depart\llcll-t or AgricuLtU~i;l. and Mr. Georg~
,,__~ f,."..~'NI1..n. lrIaterabed Auvieoi:'1 OOll\mit ee, reported on thE! Vatet'sh,d Program.
~ ._.._~"".h...,'f".,l1"'lO" r1t:\'t:
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95
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96
SPECIAL USE PE~1IT
NE'"1'1 lU\NOVER COUNTY
Permit No. 13
Application No. 14
Zone R-15
A Special Use Permit is herehy granted by the Board of County Commissioners
after consideration by the Wilmington-New Hanover Planning Commission to
Homer H. Ward
to use the land located at Route 2. Box 24l-DD, Burnette Av.e. ( S. R. 1527)
for Marina
based on the following conditions: (1) That 50% of the off-street parking spaces
be at least 32 feet in lenll;tb.
(2) Proposed si~n not to be lar~er than 32 square feet in size - non-illuminated,
1) That no construction of boats be. permitted on the lot.
(4) When proposed club house .is constructed additional off-street: parking; spaces be
provided in accordance with the Zoning Ordinance.
(5) All sales and services connected with the operation of tb.e club facility shall
~lncidental to the marina operations.
(6) Sale of boating and fishing supplies except sale of gasoline and oil shall be -
from an enclosed s true tur e.
,
(7) 110 smoking signs shall be posted at each gasoline point.
,
This Special Use Permit shall be subject to the conditions lis t ed above and
the ~q!ltt:!&-9rdiuance of New HanoveLJ&.lJ.n..t'i' ;J;L_~nz ~..t}~e conditi~ so specified
or allY part thereof shall be held void or invalid, or if any such cooditions are
not complied with, this Special Use Permi t shall be void and of no effect. The
Special Use Permit is authorization for the Build~ng Inspector to issue a building
permit for the use listed above. ,~
~
Chairman of County sioners
-~ -=
-..
June 7 1971
-- ! , --
,_ if Date
IiLf$ !!'
'{-ii~:(~,f :-y U
&J ~HJ
-~-"-
97
1> DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
PO BOX 1890
l.~~' WILMINGTON NC 28402.1890
~ October 3, 2005
Regulatory Division
Honorable Elizabeth Dole
United States Senator
310 New Bern A venue, Suite 122
Raleigh, North Carolina 27601
Dear Senator Dole:
Thank you for your September 17, 2005, inquiry regarding correspondence you received from
Mr. David Ward (undated). Mr. David Ward wanted to know what Department of the Army permits
were authorized to Ho~r Ward .at 1512 Burnett Road for th~_construction of a marina, in Myrtle -
Grove Sound, New Hanover County.
We have thoroughly searched our records and files and have concluded that a Department of
the Army permit was issued to Mr. Horner Ward in 1969 (enclosed). This permit authorized the
construction of a private bulkhead, boat ramp and pier on the property in question. In addition, I
have enclosed several general permits that have authorized the maintenance and repair of these
structures subsequent to the original permit (enclosed). According to our records no other permits
have been issued to Homer Ward at this location.
As always, your interest in this matter, our regulatory program, and all Wihnington District
matters is greatly appreciated. Questions or comments regarding this correspondence may be
directed to Henry Wicker of the Wilmington Regulatory Field Office at (910) 251-493 O.
Sincerely,
Enclosures
,----
LJJ~ ~T ~
G f:j~. ,_.,.~._,........
98
~7'} Mr. Greer/P~~
; ."
Mr. Turner iF/I)
Mr. sanderc~
Col. Denison/s(3\
Mail ;;"7"
'. OPER v) )<--,
SAWKS (Permit No. 12~69) 10 March 1969
Mr. HOI$U' H. Ward
~91. IllkeShQt~ Drive
Wilmington. N. C. 28401
~
a Deer Mr. Ward:
~, In accordan<re with your written requeat dated lA November 1968, there is
0" inclo.sEtd a ~J; authori.:dng tb.c(mst~ct;fon of a~'boat t'..p~ bulkhead.
and a pier 111 Myrtle Sound Max' CaroUna'Beacn inNEtw Htnc:wer co.unty. N.C.
Q' Ii any material changes in the location or plans 6fthe structure or work
~, ~found tWee.$$llry on a<lC!ountof unforeseen 0.1' altered C!()Ild1tious or
otherwise, :teVise4 plans $hould be aublidtted FOlllptl;y to the M8~ict En-
~i~. gineerln ord(ir that these r1W1sed "lans. if found unobjectiom.ble. may
Q ;receive tbe aPP!,fNal ~qubed by law be~9re cotl$b'u~tion !s begun:.
<=.> Your attention is called 'to condition (i) of the inclosed pemit wbicb re-
quires th~ ~ttee to noUfy tbie office ~latiYe to. the CC)llRe~nt
(1i. . and C()Ulpmtion da~8 .-J' .
,...... In response to .Ily pub.lic DOtlce dated 2 Dec~er 1%8, bsued 'to announce
your proposal to aU known interested parties, the State of North CaroUna
and C. G. Willis, lne.~ ftp:nished cODIllents. A copy eaCh of their letters ..,.'
is inclosed. In connection with th$ last sent:eUClit in paragraph 2,0;0.1.' the <:;.."~
State's letter, yolU' attention is invited to special condition (k) in the
~ permit.. In connection with the letter frOlll C. G.WllUSfluci, Yl:mrat'ten-
tj,on is lni1!'ted to the wave wash mer attacbed to the permit. .
S1~cerely yOurs;
3 Inc 1s PAUL S. 'DENISON
1. l?emit No.. 12-69 Catone 1, Corps of Engineers
w/wave lactiM fller . 'District Engi.neer
2. Cy ltr 6Har 69& State ~
3. cy ltr 10 Dec 68 fm
C. G. Willis, Inc.
Copy furnished wit) inch I
Xlir.., NC Uept of Water &- Air
Resources, ~1eighJ Ne 21603
. \?! ~T cj
fj ~
._~ -~
99
-' ..
DEPARTMENT OF THE ARMY
NOTE.-It is to be understood that this instrument does not give any property rights either in real estate or mate--
rial, or any exclusive privileges; and that it does not authorize any injury to private property or invasion of private
rights, or any infringement of Federal, State, or local laws or regulations, nor does it obviate the necessity of obtaining
State assent to the work authorized. IT UEIlEI.Y EKPIlESSEG TIlE AGSmT'P OF 'rITE FmEllAI:. CeVmUTMIJU'F 00 PAR AB eon
CERN3 'rHB FUB1:.IB RICHiTJ 6r n:.tIs:.'fieu. (See Cummings v. Chicago, 188 U. S.,.410.) 16-131e.&4i
PERMIT
Wilmington District t Corps of Engineers.
WUmington, North Carolina 1%9
nmnl0"Ma1:'(!'kn'__h..--....n.. ,
Mr.. Homer H. Wa1"d
2914 Lake Shore Drive
Wllm1ngton, N. C~ . 28401
0
Dear Sb-: ':'-~'
-
V Referring 1,0 written request dated 14 November 1968
0- ." <
0 I have to inform you that. upon the recommendation of the Chief of Engineers,
N and under the provisions of Section 10 of the Act of Congress approved March 3.
- 1899. entitled "An act making appropriations for the construction, repair, and
(:) preservation of certain ~ublic works an rivers and harbors, and for other pur-
0
0.. poses," you are hereby authorized by the Secretary of the A~y.
1'0. to construet a bulkhead. b~t t~thand V:lXet k)
ere ellcr e ))ropo ure or war .
in Myrtle Sound about (qtl.eaL\!~2n>>{t,?t~'1i;tca,~. ~'&':rw\~~;Arn!A the Atlantic Intra-
coastal Waterway.
- n~ar C.,R,olin!a ~~h ~n ~ew p'aPtov~ COtl~ ~. C. . .
(Here to nam e neares we - own oeali -pre era T a WI). or Clty- rtd t e distance In.roUes and tenth. from &ome definIte point In
the same. statins- whether above .or below or Bivini' direction by points of ~mp&8I.)
in accordance with the plans shown on the dlav..ing attached hereto
(Or drawings ~ aive file number or other dennite identification marks.)
"Proposed Pier Portion Tucker-Btrrnett Sub-Div., Myrtle GrQVe Sound, November 9.
1968'1
subject to the following conditions:
I ..---
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-- _.~._--
100
(a) That the work shall be subject to the supervision and approval of the District Engineer, Corps of Engineers,
in charge of the locality, who may temporarily suspend the work at any time, if in his judgment the interests of navi-
gation so require.
(b) That any material dredged in the prosecution of the work herein authorized shall be removed evenly and 110
large refuse piles, ridges across the bed of the waterway, or deep holes that may have a tendency to cause injury to
navigable channels or to.the banks of the waterway shall be left. If any pipe, wire, or cable hereby authorized is laid
in a trench, the formation of permanent ridges across the bed of the waterway shall be avoided and the back filling
shall be so done as not to increase the cost of future dredging for navigation. Any material to be deposited or
dumped under this authorization, either in the waterway or on shore above high-water mark, shall be deposited Dr
dumpcd at the locality shown on the drawing hereto attached, and, if so prescribed thereon, within or behind a good
and substantial bulkhead or bulkheads, such as will prevcnt escape of ' the material in the waterway. If the mate-
rial is to be deposited in the harbor of New York, or in its adjacent or tributary waters, or in Long Island Sound, a
permit therefor must be previously obtained from the Supervisor of New York Harbor, New York City.
(c) That there shall he no unreasonable interference with navigation by the work herein authorized.
(d) That if inspections or any other operations by the United States are necessary in the interest of navigation,
all expenses connected therewith shall be borne by the permittee.
(e) That no attempt shall he made by the permittee or the owner to forbid the full and free-use by the public of
all navigable waters 'at or adjacent to the work or structure.
N (1) That if future operations by the United States require an alteration in the position of the structure or work
herein authorized, or if, in the opinion of the Secretary of the Amy, it shall cause un~sonable obstruction to the free
- navigation of said water, the owner will be required upon due notice from the Secretary of the Army, to remove or
alter the structural work or obstructions caused thereby without expense to the United States, so as to render naviga-
"q"" tion reasonably free, easy, and unobstructed; and if, upon the expiration or revocation of this permit, the structure,
fill, excavation, or other modification of the watercourse hereby authorized shall not be completed, the owners shall,
0 without expense to the United StateS, and to such extent and in such time and manner as the Secretiry of the Army
may require, remove all or any portion of the uncompleted structure or fill and restore to its former condition the navi-
0 gable capacity of the watercourse. No claim shall be made against the United States on account of any such removal
or alteration.
N (g) That the United States shall in no case be liable for any damage or injury to the structure or work herein
authoriz"d which may be caused by or result from future operations undertaken by the Government for the conserva-
- tion or improvement of navigation, or for other purposes, and no claim or right to compensation shall accrue from
any such damage.
d (h) That if the display.of lights and signals on any work n"reby authorized is not otherwise provided for by law,
such lights and signals as may he prescribed by the U. S. Coast Guard, shall be installed and maintained by and at the
expense of the owner.
0 (i) That the permittee shall notify the said district engineer at what time the work will be commenced, and as
far in advance of the time of commencement as the said district engineer may specify, and shall alBo notify him
0"- promptly, in writing, of the commencement of work, suspension of work, if for a period of more than one week,
resumption of work, and its completion.
~ (;) That if the structure or work herein authorized is not completed on or before ..._._~t!!!1=:._m.m.mh'_h'_' day
of _De.eeniber__m___________, 19__12, this permit, if not previously revoked or specifically extended, shall cease and
be null and void.
(k) That the permittee shall comply protnptl)' with any x-egulations, ccmdition$,
or ill8tt'uctions affeoting the work hereby authorized if and when issued by the
Feder~ Water Pollution Control Administration and/or the State water pollution.
cOrtb."ol ageney having jurisdiction to abate or prevent water pollu.tion.;' Such reg-
ulations. eonditions or :1nstruc'!tiG1l8 in effect or 'prescribed by the Fede1tal Water
PoUuti<m Control Administration Ol" State agen~y are het'eby made a eondi'ttott of
thl8 permit.
By authorit.y of the Secretary of the Army:
-G2 .I....,A ~.. . -.-
PAUL S. DENISON
Coloneli COi!S of Engineers
EllS FORM (Civil) Distric tug neeI'
t SEP ~8 1721 This form supersedes ED Form Qft, daM 1 Apr 48, which m.y b. used untO exhausted.
g. s, COYE1U.uUKJ PlUt'.IIII" erneE 18-131eS-:-6
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STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF NEW HANOVER 04 CVS 2195
TIMOTHY H. WARD and DONNIE H. )
WARD, )
)
Plaintiffs, ) AFFIDA VIT OF TIMOTHY H. WARD
)
-vs- )
)
NEW HANOVER COUNTY, )
)
Defendant. )
I, Timothy H. Ward, being first duly sworn, depose and say that:
1. I am one of the Plaintiffs in this action.
2. I have personal knowledge of the matters set forth herein.
3. I am 47 years old, having been born in New Hanover County on October 22, 1956.
4. I am one of the owners of the property located at 1512 Burnett Boulevard,
Wilmington, New Hanover County, North Carolina, which property is identified as Lots 1,2,3 and
4 of Block 3 of Tucker-Burnett Subdivision, as more particularly described in that General
Warranty Deed dated and recorded on June 20, 2001 in Book 2963 at Page 412 of the New Hanover
County Registry ("Subject Property" or "Father's Property").
5. My father was Homer H. Ward. My mother was Frances Ward.
6. I resided in New Hanover County until 1985, and I returned in 2001. I currently
reside in New Hanover County.
7. My father was an electrician by trade, and I helped my father and older brother,
Donnie, with his business, known as Azalea Electric, during high school.
8. In 1969, my father obtained a Permit form the Wilmington District of the U.S. Anny
Corps of Engineers to dredge the riparian area of the. S~bject Property for the construction and
operation of a marina.
9. A copy of the Corps of Engineers' Permit is attached hereto and marked as Exhibit
"A."
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103
.
10. As I recall, my Father's Property was dredged in 1971 after issuance of the COIpS of
Engineers permit.
11. On June 7, 1971, my father obtained Special Usc Permit No. 13 from the New
Hanover County Commissioners.
12. After the issuance of Special Use Permit No. 13, I assisted my father and brother,
Donnie H. \Vard, in the construction, operation and maintenance of the marina that is located upon
the Subject Property.
13. The marina operation was called "Ward's Marina."
14. My father operated the marina on the Subject Property for a number of years until
his death in January 2000 in New Hanover County.
AND FURTHER THIS AFFIANT SA YETH NOT.
This the \"5\ day of October, 2004.
~~~.~J:j
TIMOTHY H. WARD
SWORN TO AND SUBSCRIBJD
BEFORE ME THIS THE 1 'i::!:..
DAY OF OCTOBER, 2004
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STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF NEW HANOVER 04 CVS 2195
TIl'v10THY H. WARD and DONNIE H. )
WARD, )
)
Plaintiffs, ) AFFIDA VIT OF DONNIE H. WARD
)
-vs- )
)
NEW HANOVER COUNTY, )
)
Defendant. )
I, Donnie H. Ward, being first duly sworn, depose and say that:
l. I am one of the Plaintiffs in this action.
2. I have personal knowledge of the matters set forth herein.
3. I am 52 years old, having been born in New Hanover County on February 20, 1952.
I have lived in New Hanover County my entire life.
4. I am one of the owners of the property located at 1512 Burnett Boulevard,
Wilmington, New Hanover County, North Carolina, which property is identified as Lots 1,2,3 and
4 of Block 3 of Tucker-Burnett Subdivision, as more particularly described in that General
Warranty Deed dated and recorded on June 20, 2001 in Book 2963 at Page 412 of the New Hanover
County Registry ("Subject Property" or "Father's Property").
5. My father was Homer H. Ward. My mother was FrancesWard.
6. From 1968 and continuing until my second year in college at the University of North
Carolina at Wilmington, I resided on the Subject Property with my father and mother.
7. My father was an electrician by trade, and I helped my father with his business,
known as Azalea Electric, during high school and college. I graduated from college in 1974 and
subsequently married and moved out of my father's residence on the Subject Property.
8. My wife and I lived in a trailer in Wheel Estates in Wilmington for several years
prior to building a house that is located in the Tucker-Burnell Subdivision, a couple of blocks from
my father's residence at the Subject Property.
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,
9, In 1969, my father obtained a Permit from the Wilmington District of the U.S. Army
Corps of Engineers to dredge the riparian area of the Subject Property for the COl1stl1Jction and
operation of a marina. -, --
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10. A copy of the Corps of Engineers' Permit is attached hereto and marked as Exhibit
"A."
11. As r recall, the property was dredged in 1971 after issuance of the Corps of
Engineers permit. !.d.b...i':....,~
12. On June 7, 1971, my father obtained Special Use Permit No. 13 from the New
Hanover County Commissioners.
13. I attended the Special Use Permit hearing in Wilmington with my father.
14. After issuance of these permits, ! physically a~s!sted my father with the dred~ing ~
the canal in the riparian area of the Subject Property next to the Intracoastal wafei-way, helped my
father with the construction of the improvements authorized by Special Use Permit No. 13, helped
my father with the erection of a business sign for the marina, sold gas, sodas, snacks, bait, food
stuffs, etc., to customers of the marina and other odd jobs as requested by my father.
15. My father and I wired the electrical facilities for the marina, as he was an electrician.
My father requested and obtained a special transformer from CP&L for providing additional
electricity to the Marina buildings. This special transformer stilI exists at the original location.
16. The marina operation was called "Ward's Marina," and I still have the original sign
used by my father to advertise the marina to the public. A photograph of this marina sign is
attached hereto and marked as Exhibit "B." This sign is over 30 years old. My father operated the
marina on this property for a number of years, and r had the occasion to visit with him and assist
him with the operation almost e~y d9y ':lntil his death in !3nuaJ}' 20Q9 in New Hanover County.
17. The lumber that my father and r used to build the pier house and other marina
stmctures was purchased from Godwin Lumber Company in Castle Hayne. r remember going to
Godwin's with my father.
18. My father also obtained a business license from New Hanover County for the
operation of his marina and for the sale of beer, gasoline, soft drinks and fishing and boating items
commonly found at marinas.
19.':>1 .:e:.ll~r,lQ~ .~g~Eial~~ e~r.1J1i.t was issued to my father, he operated the Subject
Property as a commercial marina and sold gasoline, beer and other items to the public.
20. r personally recall an incident in the mid-1980s when a barge destroyed part one of
the marina buildings. My father was compensated by an insurance company for this loss.
2
106
r
21: During the early 1970s, Monty Etheridge, one of my father's customers, operated a
shrimp boat, which he moored at the marina. As I recall, this was between 1972 and 1974.
~ 22, My father received income from the operation of the commercial marina on the
Subject Property from moorings, boat slips, boat launchings, and sales of gasoline, drinks, snacks
and other items.
23. My father also had the marina dredged on occasion.
--...........:: '--~,--...._-..
. 24. tp'er~2nally dr~ the site l?la~2Y my.fath~ mari~ In a?dition to wet
boat shps, dry boat storage was clearly planned for the manna and occurreaat the marIlla.
25. Two mechanical boat lifts had been used at my father's property for years after the
issuance of Special Use Permit No. 13. ~
AND FURTHER THIS AFFIANT SA YETH NOT.
. I if
ThIS the _ day of October, 2004.
~~ ftJJ
DONNIE H. W ARb
SWORN TO AND SUBSCR~ED
BEFORE ME THIS THE I L
DA Y OF OCTOBER, 2004
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CERTIFICATE OF SERVICE
The undersigned does hereby certify that a copy of the foregoing and attached
AFFIDA VIT OF DONNIE H. WARD
was this date served by telefax before 5:00 p.m. and depositing said copy in the United States Mail,
postage prepaid, and addressed to the following attorneys at the indicated addresses:
Mr. E. Holt Moore, III
Assistant County Attorney
320 Chestnut Street, Room 309
Wilmington, NC 28401
Telefax: 341-4170
Mr. William Norton Mason
SHIPMAN, MASON & WRIGHT
11 S. Fifth Avenue
Wilmington, NC 28401
TeIefax: 762-6752
This the 1st day of October, 2004.
~~
KENNETH A. SHANKLIN, NCSB #05826
MA TTHEW A. NICHOLS, NCSB # 23403
Attorneys for Plaintiffs
214 Market Street
P. O. Box 1347
Wilmington, NC 28402-1347
Telephone: (910) 762-9400
Telefax: (910) 251-1773
4
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108
FEB-18-2005 ,FR I 05: 13 PM COUNTY Pl,TORNEY OFF! CE f~O, 9iO 341 4170 p 11
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F~CILITY DATA SHEET - PAGE a1 DF 01
OWNER NAI E-----~: HU~~R H. liARCl fAC rLHY IO: 0-0 2~08 0
O~NER AD RE5$---: RT 2 BOi 241 -~D it{ eft<( ~ ;:-k ~
FACILITY NA~E---: HO~ER H. WARD
r'AC Iun AD'JRE:~I$: ~ T 2. 3D:" 2.41 -DiJ .~~
PROGUe r ad- (l4) ~
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HIVE PkDVI0~O IS ACCU~ATE
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North Carolina Department of Environment and Natural Resources
Division of Coastal Management
Michael F. Easley, Governor Charles S. Jones, Director William G. Ross Jr., Secretary
November 21,2005
David Ward
1508 Burnett Road
Washington, NC 28409
Dear Mr. Ward:
Reference is made to our reeent telephone conversation concerning any permits that may have
been issued to Homer Ward at 1512 Burnett Road, adjacent to Myrtle Grove Sound, Wilmington.
After a comprehensive search of our on-site pcrmit files, as well 3S a search of our permit
tracking database, the only permits Coastal Area Management Act (CAMA) and/or Srate Dredge
and Fill Law permits tbat r can find that have been issued to Homer Ward were (1) a geneml
permit for a boar slip in 1992. and (2) a generdl permit for a bulkhead in 1993. Additionally, two
general permits for bulkheads were issued to Mr. Tim Ward at the site in 2004.
I would also like to let you know that Mr. Tim Ward is in the process of applying for a CAMA
Major Permit to dredge a portion of the property in front of his property. and to construct a
multi-slip docking facility_ As an adjacent property owner, Mr. Ward will be required to notify
you of his intentions to apply for this permit, and you may provide any specific comments you
have on the proposed project at that time. As we have previously discussed, the fact that Mr.
Ward is applying for a permit does not mean that a permit will be issued. A decision on whether
or not to grant a permit will only be made after COOrdinating with various stale and federal
environmental review agencies.
1 hope that the above information is useful. Please let me know if! may provide any additional
permit histories at this location.
Sincerely, ~.
p.~///~
Doug Huggett
Major Pennit Coordinator
Cc:: Jim Gregson
400 Commerce Avenue, Morehead City, North Carolina 28557
Phone: 252-808.2808' FAX: 252-247-3330 \ Internet: www.nccoaslalmanagement.net
An Equ<l1 Opportunity \ Affirmative Action Employer - 50% Recyded \ 10% Post ConsulTI€r Paper
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MEMORANDUM TO - T. L. Linton (Ed Wade)
.c'rom Jim Brown
Subject App. for C&D P~rmit: - H. H. 'Ward - dat:ed 1-12-71 -
While flying wich Piloc Arthur Ro~e January II, we observed a dr~dging op~racion
in Myrtle Sound on the west ~ide of the IWW approximately IfZ mile south of the
Carolina Beach Inlet. Mr. Ward was having the dredging done by Harrel~on &
l'homns (co-owners of dredge D~AR #1001). I stopped and talked with che dredge
owner.. and with Mr, Wa.rd. No C&D permit had been applied for. A federal pc~mit
was obtained Lor con~crucc~on of the bulkhend und to fi.ll w:i thin chc bulkhead,
but not for excavation of fill ~a~eria1s from submerged botComs. The .f.edcral
pcrmi.!: is No. W-661 dated December 2, 1968.
1 i.nforlned Mr. Ward that be mus!: obtain ~ State pe.mit for any drndge and fill
wo~k begun after January I. 1970" in a.ddition Co hi~ federal permic. and also
that the federal permit obtained did not cover dr.edging which ~5 prP-SeoCly beine
donc. I also mentioned to Mr. Harrelson thac this ia the second case in which
his dredge had been invol ved in unaucl1orozed dredging.
I as~i[it~d Nr. Ward in completing application forms, maps, ~CC, to apply .for
the Sta-tc permico 'these should reach your office. at about the same time as thi5
m~morandunl.
From being on site, it was quite obviou~ that the dredging in progress was hav-
i.ng little effect on [ishcl,"ies resourCes of the area, and that all spoil materia.ls
weee beiUt; adequately confined behind existing bulkhead. /:lad an applicati.on been
filed, it: is en)' Opinion that there would hav<" been no objections Voiced aGainst
issuance of n PQrmir..
Since the Operation was approximately 2/3 complet:ed, Hr. Ward and the oredge
O~ne1:'S were quite concerned ubout thE'. stoppage of thi.G project. I ).ntormcd
them that I had. no authority to allow conLjnunnc~, but I ,.ould r.~1ay the ci.r-
C:Uf/lS t.:ance to the Fishcri,8S Commissioner [or his C.om;j,deration in allo~ing Con-
tinuation of the project.
Jim Brown
FXHlr31T lQ~..._
_'t1f!t. - :':;,'iJ'i.:d _
----------
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111
This page intentionally left blank.
112
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
REQU EST FOR BOARD ACTION
Meeting Date: 01/09/06
Regular Item #: 2.7 Estimated Time: Page Number:
Department: Planning Presenter: Dexter Hayes
Contact: Steve Candler
Item Does Not Require Review
SUBJECT:
Case 5-548,1/06 Special Use Permit request to place a singlewide mobile home on Lot 10 in
Castle Farms Subdivision
BRIEF SUMMARY:
Request by Danette Young for a Special Use Permit to place a Singlewide Mobile Home on Lot 10 in Castle Farms
Subdivision.
RECOMMENDED MOTION AND REQUESTED ACTIONS:
The County Commissioners may approve, approve with conditions, or deny the Special Use Permit.
FUNDING SOURCE:
Will above action result in: No Change In Position(s) Number of Positions:
Explanation: N/A
ATTACHMENTS:
iii
S-548-MH-Staff Summ map, site map
ITEM DOES NOT REQUIRE REVIEW
COUNTY MANAGER'S COMMENTS AND RECOMMENDATIONS:
COMMISSIONERS' ACTIONS/COMMENTS:
Approved 5-0.
113
SPECIAL USE PERMIT
S-548, 1/06; Singlewide Mobile Home in an RA Rural Agricultural District
Request By: Danette Grant Young
Location: Lot 10 Castle Farms Road
Preliminary Staff Findings
1. The Board must find that the use will not materially endanger the public health or safety
where proposed and developed according to the plan as submitted and approved.
^- The subject property is part of the Castle Farms Mobile Home subdivision located in the
Castle Hayne community near Lynn A venue, Lot 10 Castle Farms Road.
B. An individual well and septic tank serve for the utilities.
C. Access to the property is from Castle Farms Road.
D. Fire Service is available from the Castle Hayne VFD.
2. The Board must find that the use meets all required conditions and spccifications of the
Zoning Ordinance.
A. The property is zoned RA Rural Agricultural Zoning District.
B. A Special Use Permit in the Rural Agricultural zoning district permits singlewide mobile
homes.
C. The property can accommodate the setback requirements for a singlewide mobile home if
the home is re-oriented or a variance is granted.
3. The Board must find that the use will not substantially injure the value of adjoining or
abutting property or that the use is a public necessity.
A. Several other singlewide mobile homes exist nearby.
B. A singlewide mobile home recently received a Special Use Permit at the corner ofLynn
Avenue and Castle Farms Road. Another singlewide mobile home received a Special
Use Permit in July of 2005 at Lot 21 on Castle Farms Road.
C. No evidence has been submitted that this project will decrease property values of
residents or commercial uses nearby.
4. The Board must find that the location and character of the use if developcd according to the
plan as submitted and approved will be in harmony with the area in which it is to be located
and in general conformity with the plan of development for New Hanover County.
A. The 1999 Land Use Plan identities this area as Resource Protection. The purpose of the
Resource Protection class is to provide for the preservation and protection of important
natural, historic, scenic. wildlife, and recreational resources.
B. Several other mobile homes exist nearby, some for 10 years or more.
Suggested Conditions
The plat submitted by the applicant shows the mobile home with side setbacks of 5 feet. Side setbacks for
the RA zoning district are 20 feet. To meet the required side setbacks, the mobile home needs to be re-
oriented on the lot.
114
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NEW HANOVER COUNTY BOARD OF COMMISSIONERS
REQU EST FOR BOARD ACTION
Meeting Date: 01/09/06
Regular Item #: 3 Estimated Time: Page Number:
Department: IT Presenter: Leslie Stanfield, Information Technology Director
Contacts: Leslie Stanfield or Amy Akin
SUBJECT:
Award of RFP # 06-0114 and approval of contract # 06-0114 for County Telephone System
Replacement. This project was approved in the current adopted budget as an installment
financed item and therefore, the required budget amendments for accounting purposes are
attached for approval.
BRIEF SUMMARY:
Salire Partners was hired to conduct an extensive analysis of the existing telecommunications infrastructure of the County
and provide recommendations on future directions. Salire Partners compared the existing telephone structure and its
maintenance costs over a five year period with the costs of upgrading the existing system to current Internet Protocol (IP)
telephony telephone and the maintenance costs for the same five year period. The analysis and calculations by Salire
Partners indicated a savings of $2,000,000.00 over a five year period if the entire telephone system was replaced with
current, industry standard telephony equipment. The analysis took all costs into consideration. For example, operation,
maintenance, cost to replace sets as needed, and cost of new system. Therefore, the most cost efficient direction is to
replace the telephone system.
Based on the analysis provided it was management's consensus to include the replacement of the existing County wide
Telephone System in the proposed budget for fiscal year 2006-2007. This item remained in the adopted budget as an
installment purchase item at an estimated cost of $1 ,000,000.00. From the proposals received, we believe that the project
can be completed within that budget.
Also, because this is an item that will be financed and the County will be reimbursed with the financing for any initial costs,
standard reimbursement language has been included in the resolution. The time frame for purchasing, implementation,
and going live on this project is less than a year. Therefore a project ordinance will not be necessary but a budget
amendment to record the proceeds from the financing needs to be approved. The budget amendment attached to this item
is the standard budget amendment for accounting purposes only, done for all debt service items to record the proceeds
from the financing. Financing will be secured at a later date and brought back to the Commissioners for approval.
The switch that maintains the telephone function for the Administration Building, the Health Department, and Department of
Social Services is located in the old County Annex building that has been sold. The deadline to remove the switch from that
building is March 27, 2006. In order to meet that deadline, the project was developed into different Phases. Phase 1 would
transfer all operations that were dependent on the existing switch in the old annex building by March 24, 2006. Because of
the tight time-line, the County hired Computer Sciences Corporation to work with the IT staff in developing the technical
specifications of the project.
The RFP was structured so that all proposals were submitted with a technical package and a cost package. The technical
evaluation was completed on all proposals before the pricing was opened. This kept the evaluators objective; basing
grading on just the technical solutions contained in the technical response. After, the technical evaluation was completed,
prices were ranked and added to the company's rating. The top three companies were selected to present an oral
presentation on their proposed solution in a standard format provided to each.
The three companies selected to present were BellSouth, Black Box, and Sprint. The committee unanimously selected
BellSouth as the company that presented the best package (technical and cost) to meet the County's needs.
Through the guidance of CSC in the evaluation of the proposals and final contract negations with BellSouth, the County will
117
realize a total solution with a project budget of $1 ,000,000.00. Of this total project amount, BellSouth's contact amount for
the equipment purchase, delivery, installation, project management and training is $721,811.91. The remaining
infrastructure, equipment or services that are not included in the award of the contract from the RFP will be purchased
through normal County procedures.
The County has an existing master agreement with BellSouth, contract # 06-0027 (BeIlSouth's Internal Agreement # 2K5A
021555). The existing master agreement with BellSouth is being amended with a Statement of Work that specifically
covers the work to be completed under the project.
RECOMMENDED MOTION AND REQUESTED ACTIONS:
Recommend adoption of resolution providing:
1) approval of statement of work # 06-0114 as an amendment to County contract # 06-0027 with BellSouth, Inc. for
acquisition of telephone system for County, installation, training, and project management; statement of work amount
$721,811.91; and
2) the County Manager is hereby authorized and directed to execute statement of work # 06-0114 which is an amendment
to County contract # 06-0027, statement of work to be approved by the County Attorney; and
3) the Information Technology Director shall be the project director and coordinate the project; execute all related order
forms required by BellSouth for their internal processing under statement of work # 06-0114; and purchase any remaining
required equipment and services that are not included in the award of statement of work # 06-0114; items to be purchased
through normal County procedures; and
4) approval of budget amendment # 06-0099, for accounting purposes only, to budget proceeds from the financing of the
purchase through installment debt financing; and
5) pursuant to the requirements of the United States Treasury Regulations Section 1.1.03-8, the County hereby declares its
official intent to reimburse itself with the proceeds of the financing for any of the expenditures incurred by it prior to the
issuance of the financing.
FUNDING SOURCE:
Will above action result in: No Change In Position(s) Number of Positions:
Explanation: The purchase of the telephone system replacement were approved in the adoption of the current budget with
the costs for this purchase to be financed through installment purchase financing. The financing agreement for this item
will be brought back to the Commissioners at a later meeting. The funds to pay the debt service payments for this fiscal
year were included in the adopted budget for fiscal year 2005/06 and are now in account # 11008300-701120.
A budget amendment is attached, for accounting purposes only, to record the proceeds of the financing.
ATTACHMENTS:
iii
06-0099.d
REVIEWED BY:
LEGAL: FINANCE: Approve BUDGET: HUMAN RESOURCES:
COUNTY MANAGER'S COMMENTS AND RECOMMENDATIONS:
Recommend approval.
COMMISSIONERS' ACTIONS/COMMENTS:
Approved 4-1, Pritchett opposing.
118
RESOLUTION
OF THE
BOARD OF COMMISSIONERS
OF
NEW HANOVER COUNTY
WHEREAS, after due advertisement, bids were received by the Finance Department at 3 :00 p.m., on
the 1st day of December, 2005, at the County Administration Building, 320 Chestnut Street, Wilmington,
North Carolina, and the following proposals wcre received for the purchase of Telephone System Replacement
for the County, including installation, project management, and training, RFP # 06-0114:
A vnet $ 920,873 .16
BellSouth $ 721,81J.9!
Black Box $ 935,373.32
4Front $ 999,825.10
Sprint $ 732,062.20
Premier Communications $ 850,858.93
Strategic Products and Services $1,090,072.39
Teleco $1,195,203.72
AND WHEREAS, the bidding process for the Replacement Telephone System was handled in
accordance with General Statute 143- I 29.8 which gives the County flexibility in purchasing technology items;
AND WHEREAS, solicitations under this statute allows the County to award a contract that provides
the best total solution for the County and the County is not restricted to selecting the lowest bidder;
AND WHEREAS, the statute also allows for negotiations with bidders;
AND WHEREAS, the proposals were all evaluated and rated on their technical responses by a
committee before the pricing proposals were opened;
AND WHEREAS, through this process the County was able to detcrmine that the BellSouth proposal
best met the requirements of the County including the necessity of having Phase 1 completed by March 24,
2006;
AND WHEREAS, the Information Technology Director, the Interim Finance Director and the County
Manager recommend that the contract be awarded to BellSouth, the bidder providing the best solution and cost
package to the County, in the amount of seven hundred twenty-one thousand, eight hundred eleven dollars
and ninety-one cents ($721,811.91);
AND WHEREAS, the purchase of required equipment and services for the telephone system
replacement project was approved in the adoption of the current budget with the costs for this project to be
financed through installment purchase financing;
AND WHEREAS, the financing agreement for this item will be brought back to the Commissioners at
a later meeting and the funds to pay the debt service payments for this fiscal year were included in the adopted
budgeted for fiscal year 2005/06, and are now in account # 11008300-701120;
AND WHEREAS; pursuant to the requirements of the United States Treasury Regulations Section
1.1.03-8, the County hereby declares its official intent to reimburse itself with the proceeds of the financing for
any of the expenditures incurred by it prior to the issuance of the financing;
--- ---.---------
119
AND WHEREAS, balance of the project funds will be used to purchase, through normal County
procedures, related equipment and services that arc not included in thc award of this contract;
NOW, THEREFORE, BE IT RESOL YED by the Board of County Commissioners of New Hanover
County that
I) Statement of Work # 06-0114 with BellSouth and an amendment to Contract #06-0027 for
acquisition of equipment for the telephone system replacement project contract amount seven
hundred twenty-one thousand, eight hundred eleven dollars and ninety-one cents
($721,811.91) is approved; and
2) the County Manager is hereby authorized and directed to execute statement of work # 06-
0114 and the amendment to contract # 06-0027, statement of work and contract forms to be
approved by the County Attorney; and
3) the Information Technology Director will be the project director and coordinate the project
and purchase any remaining required equipment and services that are not included in the
award of statement of work # 06-0114; items to be purchased through normal County
procedures; and
4) pursuant to the requirements ofthe United States Treasury Regulations Section 1.1.03-8, the
County hereby declares its official intent to reimburse itself with the proceeds of the financing
for any of the expenditures incurred by it prior to the issuance of the financing.
This 9th day of January, 2006.
(SEAL)
Chaimlan, Board of County Commissioners
ATTEST:
Clerk to the Board
- ---------------_.._------~ ------------ -- -------~-
120
Phone System Replacement - Project Costs
BellSouth Contract Award - RFP #06-114
Equipment and Software $610,153.61
Recommended Spares $5,565.06
Installation $69,358.80
Training $21,000.00
Project Management $5,031.25
Other Costs $10,703.19
Total BellSouth Contract (without maintenance) $721,811.91
Additional Anticipated Project Costs
LANIWAN Equipment $203,000.00
UPS Equipment $25,188.09
Contingency on BellSouth Contract $50,000.00
Total Other Costs $278,188.09
Total Project Cost $1,000,000.00
- -~--- -- - -------------- --------------
121
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
REQU EST FOR BOARD ACTION
Meeting Date: 01/09/06
Budget Amendment
DEPARTMENT: Information Technology
BUDGET AMENDMENT #: 06-0099
ADJUSTMENT DEBIT CREDIT
Information Technology:
Installment Loan Proceeds $1,000,000
Capital Outlay $1,000,000
EXPLANATION: For accounting purposes only. To record and budget proceeds from installment debt for County
telephone system replacement.
ADDITIONAL INFORMATION: Installment debt financing contract to be brought to the Board of County
Commissioners for approval.
APPROVAL STATUS: To be approved by Board Of Commissioners
COMMISSIONERS' ACTIONS/COMMENTS:
Approved 4-1, Pritchett opposing.
122
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
REQU EST FOR BOARD ACTION
Meeting Date: 01/09/06
Regular Item #: 4 Estimated Time: Page Number:
Department: Public Safety Communications Center Presenters: Steve Smith, Leslie Stanfield
Contacts: Amy Akin, Steve Smith, or Brenda Hewlett
SUBJECT:
Award of RFP # 06-0005 and Approval of Contract # 06-0005 for the Purchase of Public Safety
Answering Point (PSAP) Telephone System for the E-911 Center including installation, project
management, training and maintenance
BRIEF SUMMARY:
The purchase of a telephone system was handled as a Request for Proposals (RFP) through the bidding process allowed in
General Statute 143-129.8 which gives the County flexibility in purchasing technology items. The statute recognizes "the
complex and innovative nature of information technology goods and services, and. . . . the desirability of a single point of
responsibility for contracts that include combinations of purchase of goods, design, installation, training, operation,
maintenance, and related services. .." Solicitations under this statute allows the County to award a contract that provides
the best total solution for the County and is not restricted to being the lowest bidder. Also, the statute allows for negotiation
with bidders.
Synopsis of the evaluation and recommendation process:
1 . Equipment was evaluated and tested on site for three days by users (the users did not know the
price of each system).
2. User reports of their evaluation of each equipment were reviewed. The product specifications
were reviewed and compared to the County's specifications. Exceptions were not considered
critical if the function could be accomplished in another method. Only if the function could not
be accomplished at all, was it considered critical.
3. The final product selected was offered by three different bidders. County staff negotiated with all
three to determine the best package each could provide.
4. A summary of the negotiated pricing for the project is listed below:
Positron $654,552.92*
Sprint $836,497.11
BellSouth $747,040.09**
*Note: In the pricing negotiation, Positron also upgraded the equipment offered from Life Line 100 to
Positron VIPER which is the Next Generation E9-1-1.
**Note: BellSouth's pricing did not include the ePrinter function and Sentry Monitoring.
5. The committee has selected Positron to recommend to the Board of Commissioners for award of
the E-911 System at total cost of $654,552.92. This total cost includes equipment, installation,
training, project management, and maintenance.
Additional details of the process:
Some bidders submitted proposals based on the same equipment. Therefore, of the six (6) bidders only four (4) different
types of equipment were proposed. Motorola submitted a bid based on the Plant Equipment product. Their bid was not
only the highest, but was significantly higher to a point that staff removed it from consideration at the beginning.
123
Of the remaining bidders this left three brands of equipment:
Modular Communications Systems
Positron Public Safety Systems
CML
The following evaluation criteria were used to evaluate the product. You will notice that 40% of the evaluation was based on
the existing E-911 call takers testing of the equipment. At the beginning of the process a week was established when the
equipment would be brought in and left for a three day period for use by the call takers. Each representative was given the
identical data to program into their system so each manufacturer's equipment could be evaluated based on the same
operations.
Criteria:
30% Proposer's conformance to the Specification Requirements of the RFP and exceptions listed in the
Proposal or Exceptions determined by staff.
(Note: The specifications in the RFP are a result of research by the E-911 staff in determining what
type of functionality is needed for their office to perform their function. National standards
provided by their particular industry as well as standards used in operations of similar size and
complexities of the County's were used.)
10% Expertise of provider; customer support structure; availability of service; warranty provided; training
program;
40% Functionality of proposed equipment as evaluated by E-911 staff/user. (Note: It has been shown
extensively that failure to incorporate recommendation of the users is one of the largest reasons
for a new system not performing as expected or even failure of project. The telephone call taker
system is highly critical function and therefore a high weight was given to the category.)
20% Purchase investment, operation and maintenance costs, delivery and installation.
After the week of evaluations, the proposals were reviewed again. At this point cost was not used to determine selection of
product. This evaluation was focused on the product meeting specifications, looking at deviations for each product, and
reviewing users' recommendations. As a result of the review, Modular Communications Systems was removed from
consideration. The review of Modular Communications is abbreviated as follows:
Modular Communications Systems product received the worst review by the E-911 users. When the County called
to let them know their product was selected to be evaluated by users, the company could not setup until
Wednesday which only gave the users 1-1/2 days to test product. This time line for demonstrations was made
available to all bidders at the beginning of the process. All bidders were made aware that they would be required to
provide their product for demonstration, provided the time period that was established for the demonstrations, and
that failure to do so as required would be considered nonresponsive. In the exceptions categories, many of all
requirements that Modular Communications Systems could not meet were answered with, "this seems
inappropriate {to require}".
The CML product had areas of concern that were further investigated. Based on the results, CML was removed from
consideration and Positron was determined to be the product that the County wanted to purchase. The review of CML was
as follows:
There were twelve areas in CML's product that appeared to not meet specifications. After receiving clarification, it
was determined that there remained eight exceptions to the specifications that were not acceptable. The users
review of the CML product was more favorable than Modular Communications Systems equipment but not as
positive as Positron's review.
The Positron product meets all specifications and has no exceptions to the RFP requirements. Three bidders submitted the
Positron product for consideration. Staff gave each of the three bidders an opportunity to review and negotiate best pricing.
After all pricing was received, Positron provided the best cost package to the County.
RECOMMENDED MOTION AND REQUESTED ACTIONS:
Recommend adoption of resolution:
1 . awarding RFP # 06-0005 for purchase of Public Safety Answering Point (PSAP) Telephone
124
System to Positron in the amount of $654,552.92; and
2. approving contract # 06-0005; and
3. authorizing the County Manager to execute Contract # 06-0005.
FUNDING SOURCE:
Will above action result in: No Change In Position(s) Number of Positions:
Explanation: Funds for this purchase are budgeted in 11030200-800200 and 110300300.
ATTACHMENTS:
Resolution for award:
iii
06-0005 resolution fo
REVIEWED BY:
LEGAL: FINANCE: BUDGET: HUMAN RESOURCES:
COUNTY MANAGER'S COMMENTS AND RECOMMENDATIONS:
Recommend approval.
COMMISSIONERS' ACTIONS/COMMENTS:
The item was pulled. A revised item will be placed on the January 23, 2006 agenda.
125
RESOLUTION
OF THE
BOARD OF COMMISSIONERS
OF
NEW HANOVER COUNTY
WHEREAS, after due advertisement, bids were received and publicly opened by the Finance
Department at 3:00 p.m., on the 18th day of October, 2005, at the County Administration Building,
320 Chestnut Street, Wilmington, North Carolina, and the following proposals were received for the purchase
of a Public Safety Answering Point (PSAP) Telephone System for the E-91 ] Center, including installation,
project management, training and maintenance, RFP # 06-0005:
Modular Communications Systems $ 462,987.29
Wireless (CML Equipment) $ 475,740.47
Sprint (CML Equipment) $ 511,502.31
Sprint (Positron Equipment) $ 672,990.59
Bell South (Positron Equipment) $ 8]6,82].43
Positron Public Safety Systems $ 835,203.32
Motorola (Plant Equipment) $1,492,699.27
AND WHEREAS, the bidding process for the PSAP Telephone System was handled in accordance
with General Statute 143-129.8 which gives the County flexibility in purchasing technology items;
AND WHEREAS, solicitations under this statute allows the County to award a contract that provides
the best total solution for the County and the County is not restricted to selecting the lowest bidder;
AND WHEREAS, the statute also allows for negotiations with bidders;
AND WHEREAS, one million dollars was budgeted in this year's adopted budgeted from surcharge
funds on wireless and wireline funds for this purchase;
AND WHEREAS, the proposal received from Motorola was too high to be considered and therefore
was removed from the evaluation process;
AND WHEREAS, the remaining proposals were all evaluated on their technical responses by a
committee and the functionality of each brand of proposed equipment was rated by the County's E-9]] call
takers (each proposed brand of equipment set up on site by the vendors);
AND WHEREAS, through this process the County was able to detennine that the Positron brand of
equipment offered the best functionality for the County;
AND WHEREAS, three ofthe six bidders based their proposal on the Positron brand of equipment;
AND WHEREAS, the three bidders, Positron, Sprint, and BellSouth offered suitable packages to the
County and the remaining factor was the negotiation of pricing;
AND WHEREAS, the County contacted each of the three bidders and supplied them the exact
configuration and options desired and requested the bidders to review their proposal and resubmit their best,
negotiated offer on the equipment design provided;
126
AND WHEREAS, listed below is the final negotiated pricing provided by the three bidders:
Positron $654,552.92*
Sprint $836,497. I I
BellSouth $747,040.09**
*Note: Positron also upgraded the equipment offered from Life Line 100
to Positron VIPER which is the Next Generation E-9 11 equipment.
**Note: BellSouth's pricing did not include the ePrinter function and
SentI)' Monitoring, which therefore made their offer non-responsive.
AND WHEREAS, Positron met all specifications, took no exceptions, and the E-9 I I Call Takers users
rated Positron's functionality the best out of the three brands reviewed, and Positron provided the best solution
and cost package to the County;
AND WHEREAS, the Public Safety Communications Center Director, the Interim Finance Director
and the County Manager recommend that the contract be awarded to Positron Public Safety Systems, thc
bidder providing the best solution and cost package to the County, in the amount of six hundred fifty-four
thousand, five hundred fifty-two dollars and ninety-two cents ($654,552.92);
AND WHEREAS, funds have been previously appropriated and are now in Account Numbers
I 1030200-800200 and I 1030300-800200 to cover this contract;
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of New Hanover
County that the proposal for the purchase of a Public Safety Answering Point (PSAP) Telephone System for
the E-91 I Center, including installation, project management, training and maintenance, RFP # 06-0005
Contract # 06-0005, be awarded to Positron Public Safety Systems in the amount of six hundred fifty-four
thousand, five hundred fifty-two doIlars and ninety-two cents ($654,552.92); and that the County Manager
is hereby authorized and directed to execute Contract # 06-0005, contract form to be approved by the County
Attorney.
This 9th day of January, 2006.
(SEAL)
Chairnlan, Board of County Commissioners
ATTEST:
Clerk to the Board
127
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128
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
REQU EST FOR BOARD ACTION
Meeting Date: 01/09/06
Regular Item #: 5 Estimated Time: Page Number:
Department: County Manager Presenter: Dave Weaver
Contact: Greg Thompson
SUBJECT:
Request for Approval for Maintenance Dredging of Mason Inlet
BRIEF SUMMARY:
In April 2002 the relocation of Mason Inlet was completed. As required by permit, maintenance dredging must be
performed in order to maintain the location of the Inlet. The County signed a contract with Figure 8 Homeowners
Association (HOA) to perform the maintenance dredging at their cost required as of 26 January 2005.
After the effects of Hurricane Ophelia, the consulting engineer to the County for this project, Gahagan and Bryant (GBA),
identified that additional maintenance dredging is needed to remove the material deposited by the hurricane. In addition,
the Army Corps of Engineers has notified the County that the material in the AIWW is a hazard to navigation.
Cottrell Contracting has a dredge on the site under contract to the Figure 8 HOA. GBA negotiated pricing for a new County
contract with Cottrell to remove the material deposited by the hurricane without the mobilization cost of a dredge. The
details of Cottrell's proposal and GBA's recommendation are attached and summarized below.
The 59,500 cubic yards (cy) of material deposited by the hurricane would be removed at an average cost to the County of
$5.37 paid from the cut. The sand would be placed on Figure 8 Island and afterwards the County would assess the Figure
8 HOA for $5.50 per cy placed on the beach under the current assessment formula. Losses, however, will likely occur
between the volume of cut sand and the volume of placed sand, estimated by GBA to be approximately 20%. Ultimately, all
costs will be paid for by property owners on Figure 8 or Wrightsville Beach. There will be no net cost to the County,
although the up-front costs will be paid through the Room Occupancy Tax and reimbursed by assessment.
RECOMMENDED MOTION AND REQUESTED ACTIONS:
Staff recommends that an emergency contract be let with Cottrell Contracting to remove the sand from the Inlet and AIWW
to comply with the permit ($319,515 plus 20% contingency of $63,903).
A resolution needs to be enacted finding a present, immediate and existing emergency exempting the project from bidding
procedures. The Corps of Engineers dredging permit allows only a narrow window of time to perform the work. The
proposed contractor, already mobilized and working at the site, is the only entity that can timely complete the dredging.
FUNDING SOURCE:
Will above action result in: No Change In Position(s) Number of Positions:
Explanation: Transfer $383,418 from Room Occupancy Tax Fund to Mason Inlet Maintenance Project for maintenance
dredging. Recover these funds with a subsequent assessment to Figure 8 HOA by the end of the fiscal year. Any
remainder from this action will be removed by assessment from Wrightsville Beach homeowners. The fund will be
reimbursed via a future special assessment.
129
ATTACHMENTS:
Cottrell Contracting Corporation proposal and GBA recommendation letter
iii iii
2006 -19. d EmergencyExemptionResol'
REVIEWED BY:
LEGAL: N/A FINANCE: Approve BUDGET: Approve HUMAN RESOURCES:
COUNTY MANAGER'S COMMENTS AND RECOMMENDATIONS:
Recommend approval.
COMMISSIONERS' ACTIONS/COMMENTS:
A motion to ask Figure Eight to adhere to the contract dated 01/26/05 and to ask Figure Eight to move forward with
dredging requested by the Corps of the waterway was approved 4-1, Davis opposing.
130
Gahagan & Bryant Associates, Inc. OBA
7217 Ogden Business Lane Unit 113
Wilmington, NC 28411
(910) 686-5884
GBA.NC@gba.inccom ENGINEERS * SURVEYORS
November 30,2005
Mr. Gary McSmith
New Hanover County
Engineers Office
230 Market Place Suite 160
Wilmington, NC 28403
Re: Proposal for Dredging Work at Mason Creek
Dear Gary.
Cottrell sent me a cost proposal for performing the dredge work at Mason Creek and the AIWW. As we (GRA)
understand the situation, Figure "8" Island has contracted Cottrell to dredge 67,000 cy of material from Mason
Creek for $4.76/cy paid from the cut volume. There is an additional 24,700 cy of material in Mason Creek that
is New Hanover County's responsibility. Cottrell proposes to dredge and place this quantity on the beach at a
cost of $4. 76lcy paid from the cut volume.
The Intracoastal Waterway requires 34,800 cy of maintenance dredging, which is the County's
responsibility. The required pipeline distance wiII result in the need for a booster pump if the material is placed
on the beach. Cottrell proposed to dredge this quantity and place it on the beach for $6.50/cy or place the
material in the disposal island for $4.76/cy. I met with Mr. Cottrell last night. We negotiated that the portion of
the waterway shoal directly in front of Mason Creek, (Stations 82+00 to 88+00) would be dredged at the
Mason Creek rate of $4.76/cy due to its proximity to Mason Creek. The volume in this portion of the shoal is
13,950 cy resulting in a negotiated savings of $24,273. Figure I shows the dredge area and price allocation. The
average cost per cubic yard for the entire 59,500 cy of material within Mason Creek and the AIWW will be
$5.37/cy paid from the cut. There will not be any additional mobilization/demobilization charges associated with
this proposal
I have attached a copy of Cottrell's proposal for your reference. GRA realizes that the Wrightsville Beach side
of the project may incur some costs because of the method of payment vs. the method by which Figure "8"
Island residents can be assessed, howcver it is our recommendation that the County strongly consider Cottrell
Contracting's proposal. The overall price per cubic yard is very reasonable in today's dredging market, there are
no additional mobilization charges, and they will be on site, minimizing any time delays.
If you have any questions regarding this matter do not hesitate to call our oftlce at 686-5884.
Sincerely,
Chris Gibson, PE
BALllMORE. MD HOUSTON, TX Los ANGEl.ES. CA SAN FRANCISCO. CA TAMPA, FL. WILMINGTON, DE
(410)682.5595 (713) 267.2785 (310) 521-8127 (415) 883.7683 (813) 831-4408 (302) 652-4948
-------
131
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132
OBA
1...N(,;INE;Er~(~ * ~,lIrW~~Yon:)
Figure 1 - Dredge Areas for Mason Inlet MaintelUHlcc Project
~- -----.-~---~_..-
133
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134
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
REQU EST FOR BOARD ACTION
Meeting Date: 1/09/06
Budget Amendment
DEPARTMENT: Engineering/ROTS/Masons Inlet
BUDGET AMENDMENT #: 2006-19
ADJUSTMENT DEBIT CREDIT
Mason's Inlet Maintenance
Transfer in from ROTS $383,418
Capital Project Expense $383,418
Room Occupancy Tax
Appropriated Fund Balance $383,418
Transfer to Capital Projects $383,418
EXPLANATION: To budget additional transfer from Room Occupancy Tax Fund to Mason's Inlet Maintenance
Project for maintenance dredging.
ADDITIONAL INFORMATION:
APPROVAL STATUS: To be approved by Board Of Commissioners
COMMISSIONERS' ACTIONS/COMMENTS:
A motion to ask Figure Eight to adhere to the contract dated 01/26/05 and to ask Figure Eight to move forward with
dredging requested by the Corps of the waterway was approved 4-1, Davis opposing. (The budget amendment was not
approved.)
135
A RESOLUTION
OF THE
NEW HANOVER COUNTY
BOARD OF COMMISSIONERS
The Board of Commissioners of New Hanover County, does hereby resolve as
follows:
WHEREAS, in situations involving the health and safety of persons or their property,
the Board of County Commissioners can exempt a project from the bid requirements of
Chapter 143 of the North Carolina General Statutes;
AND WHEREAS, time is of the essence in undertaking the Mason's Inlet
maintenance so as to complete the project within the winter dredging period, in compliance
with Corps of Engineers permit requirements;
AND WHEREAS, only one contractor, presently mobilized and working at Mason's
Inlet, is capable of timely completing the project;
AND WHEREAS, the referenced project might be construed as being a construction
project within the meaning of G.S. 143-132;
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of
New Hanover County that the protection of property shall be promoted by exempting the
Mason's Inlet maintenance from the requirement that three (3) bids be obtained for award
of the construction contract, and said project is hereby exempted from bidding procedures
pursuant to N.C.G.S. ~143-129.
This 19th day of December, 2005.
[SEAL] New Hanover County
Robert G. Greer, Chairman
ATTEST: Board of County Commissioners
Sheila L. Schult
Clerk to the Board
136
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
REQU EST FOR BOARD ACTION
Meeting Date: 01/09/06
Regular Item #: 6 Estimated Time: Page Number:
Department: County Manager Presenter: Patricia Melvin
Contact: Patricia Melvin
SUBJECT:
Update on Elections Voting Equipment
BRIEF SUMMARY:
Staff will provide update on elections equipment issues.
RECOMMENDED MOTION AND REQUESTED ACTIONS:
Hear update.
FUNDING SOURCE:
Will above action result in: Number of Positions:
Explanation:
ATTACHMENTS:
REVIEWED BY:
LEGAL: FINANCE: BUDGET: HUMAN RESOURCES:
COUNTY MANAGER'S COMMENTS AND RECOMMENDATIONS:
Listen to update.
COMMISSIONERS' ACTIONS/COMMENTS:
Heard update. Passed the attached resolution 5-0.
137
NEW HANOVER COUNTY
OFFICE OF THE COUNTY MANAGER
320 Chestnut Street, Suite 502
Wilmington, NC 28401
www.nhcgov.com
New Hanover County
NORTH':'CAROLINA
I Memo J
, I ~ ~Iil -
DATE: January 10,2006
TO: Board of County Commissioners
Bruce Shell, County Manager
Dave Weaver, Assistant County Manager
FROM: Patricia A. Melvin, Assistant County Manager
SUBJECT: Update on Elections Equipment
As you know, as of December 23, 2005, only one of two vendors was still in the running for the provision
of voting equipment to the counties of the State of North Carolina. Diebold withdrew its proposal,
leaving ES&S as the sole viable vendor for this contract. At this time, the State Board of Elections has
made no decision to delay requirements for demonstration, approval of purchase, and actual purchase of
voting equipment which is compliant with the Help America Vote Act (HA V A). This Act requires that
all voting equipment be compliant for those with disabilities as of January], 2006. As it stands:
L Our current voting equipment is 18 years old and has been decertified by that State Board of
Elections.
2. Our options for the May 2nd election include paper ballot, which would be counted hy hand,
or purchase of ES&S equipment.
3. The ES&S equipment will be demonstrated at the NHC Board of Elections from] 0 a.m. n ]2
p.m. on Tuesday, January 17.
4. Again, New Hanover County is scheduled to receive a grant allocation totaling $634,000 for
the purchase of equipment.
S. The Board of Elections will determine which of two voting machines to recommend,
a. Optical Scan with paper trail- similar to the equipment we currently have, which has
been decertified by the State Board of Elections
b. Direct Record with paper trail - touch screen
Patricia A. Melvin 910-34] -7] 84
Assistant County Manager Fax: 9]0-34]-4027
138
6. If the Board recommends purchase the optical scan equipment plus a minimum number of
ADA equipped units, the cost will be $634,000 n 800,000. (75 - 80 units)
7. If they recommend purchase of direct record equipment only, the cost is estimated to be $1.6
million (500 units)
8. If it is feasible to utilize a combination of the two types of equipment, the estimatcd cost is
$634,000 - $1 million
9. It is unknown at this time, which machine(s) will be recommended for purchase.
10. The recommendation ofthe Board of Elections will be presented to the Board of County
Commissioners for their approval at its meeting of January 23rd. The State Board of Elections
has been notified of the delay in meeting the January 20th deadline.
11. Per information provided by Ms. Chestnut, the final cost will have to include maintenance
costs, software and training for staff, etc.
If additional information is needed, please feel free to let me know.
Ipam
Patricia A. Melvin 9]0-34]-7184
Assistant County Manager Fax: 9]0-34]-4027
.-----
139
A RESOLUTION
OF THE
NEW HANOVER COUNTY
BOARD OF COMMISSIONERS
SUPPORTING THE SOLICITATION OF NEW VOTING MACHINE VENDORS
AND
RELIEF IN IMPLEMENTATION OF NEW VOTING MACHINE REQUIREMENTS
WHEREAS, the State of North Carolina has ratified Senate Bill 223 which, among
other things, requires that all voting systems generate either a paper ballot or a paper
record by which voters may verify their votes before casting them, and to provide handicap
friendly voting systems; and
WHEREAS, to ensure the standardization of the purchase of the newly required
voting equipment, the State Board of Elections solicited and approved five voting system
vendors to ensure that every county could purchase voting equipment at the same prices
statewide; and
WHEREAS, of the five vendors selected by the State Board of Elections, all but one
vendor has withdrawn its offer, thereby leaving no vendors approved by the State Board of
Elections competing to provide the requisite equipment; and
WHEREAS, it is in the best interest of the citizens of New Hanover County that
competitive sourcing be employed in the purchase of new voting equipment; and
WHEREAS, the State Board of Elections decertified New Hanover County's voting
system on December 1, 2005; and
WHEREAS, New Hanover County is working with the North Carolina Association of
County Commissioners to explore amendment of Senate Bill 223 and to request that the
State Board of Elections recertify New Hanover County's equipment at least through the
May 2006 primary.
NOW, THEREFORE, the New Hanover County Board of Commissioners hereby
resolves to request that the North Carolina General Assembly direct the State Board of
Elections recertify New Hanover County's voting system to allow for it to at least conduct
the May 2006 primary election using its current voting equipment, to reevaluate whether
New Hanover County's existing optical scan equipment with paper trail documentation is,
or can be modified to be, consistent with Federal and State requirements, to direct the
State Board of Elections to solicit additional proposals for voting system vendors, and to
allow for an extension of time in which to implement the new voting requirements, thereby
permitting the solicitation of new voting machine vendors in order to promote free and open
competition among vendors for the purchase of the newly required voting equipment.
FURTHER BE IT RESOLVED, the New Hanover County Board of Commissioners
requests that the Chairman of the New Hanover County Board of Commissioners send a
140
letter and a copy of this resolution to Governor Michael F. Easley, Senator Julia Boseman,
Representative Carolyn H. Justice, Representative Thomas E. Wright and Representative
Daniel F. McComas with copies to be forwarded to the North Carolina League of
Municipalities, the North Carolina Association of County Commissioners, and the State
Board of Elections.
This the 9th day of January, 2006.
[SEAL] New Hanover County
Robert G. Greer, Chairman
ATTEST: Board of County Commissioners
Sheila L. Schult
Clerk to the Board
141
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142
MEETING OF THE WATER AND SEWER DISTRICT
ASSEMBLY ROOM, NEW HANOVER COUNTY HISTORIC COURTHOUSE
24 NORTH THIRD STREET, ROOM 301
WILMINGTON, NC
ESTIMATED ITEMS OF BUSINESS Page
TIMES No.
9:20 p.m. 1. Non-Agenda Items (limit three minutes)
9:25 p.m. 2. Approval of Minutes 145
143
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144
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
REQU EST FOR BOARD ACTION
Meeting Date: 01/09/06
Water & Sewer Item #: 2 Estimated Time: Page Number:
Department: Governing Body Presenter: Sheila L. Schult
Contact: Sheila L. Schult
Item Does Not Require Review
SUBJECT:
Water and Sewer District - Approval of Minutes
BRIEF SUMMARY:
Approve minutes from the Water & Sewer District meeting held on December 19, 2005
RECOMMENDED MOTION AND REQUESTED ACTIONS:
Approve minutes.
FUNDING SOURCE:
Will above action result in: Number of Positions:
Explanation:
ATTACHMENTS:
ITEM DOES NOT REQUIRE REVIEW
COUNTY MANAGER'S COMMENTS AND RECOMMENDATIONS:
COMMISSIONERS' ACTIONS/COMMENTS:
Approved 5-0.
145
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146
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
REQU EST FOR BOARD ACTION
Meeting Date: 01/09/06
Additional Item #: 1 Estimated Time: Page Number:
Department: County Manager Presenters: Wanda M. Copley, County Attorney
Bruce T. Shell, County Manager
Contacts: Wanda M. Copley, County Attorney
Bruce T. Shell, County Manager
SUBJECT:
Fixed Rate General Obligation School Bonds
BRIEF SUMMARY:
The Board of Commissioners adopted a school bond order on March 14,2005 approving the issuance of school bonds in
the aggregate principal amount of $123,000,000. The first sale of these bonds will be in the form of fixed rate general
obligation school bonds in the aggregate principal amount of $15,000,000. The Board is asked to consider and approve the
fixed rate general obligation school bond resolution which includes, but is not limited to, the following steps:
Request the Local Government Commission of North Carolina to sell the bonds and to state in the notice of sale of
the bonds that bidders may name one rate of interest for part of the bonds and another rate or rates for the balance
of the bonds;
Authorize the Chairman, Vice Chairman, Clerk to the Board, County Manager and Finance Officer to have the
bonds prepared and once sold, take all appropriate steps to deliver the bonds to the purchaser(s);
Approve and confirm the blanket Letter of Representations;
Authorize approval of changes to the Preliminary Official Statement and execute the final Official Statement; and
Authorize and direct the Chairman, Vice Chairman, County Manager, Finance Officer, Clerk to the Board, and other
officers to execute and deliver any and all documents deemed necessary or appropriate in order to carry out the
intent of the resolution and matters authorized in the resolution.
RECOMMENDED MOTION AND REQUESTED ACTIONS:
Adopt the fixed rate general obligation bond resolution.
FUNDING SOURCE:
Will above action result in: No Change In Position(s) Number of Positions:
Explanation:
ATTACHMENTS:
REVIEWED BY:
LEGAL: FINANCE: Approve BUDGET: HUMAN RESOURCES:
147
COUNTY MANAGER'S COMMENTS AND RECOMMENDATIONS:
COMMISSIONERS' ACTIONS/COMMENTS:
A fixed rate general obligation bond resolution authorizing the issuance of $15,000,000 General Obligation School Bonds
was presented and adopted 5-0.
148
A RESOLUTION
OF THE
NEW HANOVER COUNTY
BOARD OF COMMISSIONERS
WHEREAS, the bond order hereinafter described has taken effect, and it is
desirable to make provision for the issuance of bonds authorized by said bond order; NOW,
THEREFORE,
BE IT RESOLVED by the Board of Commissioners of the County of New
Hanover, North Carolina (the "Issuer"), as follows:
1. Pursuant to and in accordance with the school bond order adopted by the
Board of Commissioners on March 14, 2005, the Issuer shall issue its bonds in the aggregate
principal amount of $15,000,000. The bonds shall be designated "General Obligation School
Bonds, Series 2006" (hereinafter referred to as the "Bonds"). The period of usefulness of the
capital project to be financed by the issuance of the bonds is a period of forty years, computed
from February 1,2006.
2. The Bonds shall be dated February 1, 2006 and shall bear interest from
their date at a rate or rates which shall be hereafter determined upon the public sale thereof and
such interest shall be payable on August 1, 2006 and semi-annually thereafter on February 1 and
August 1. The Bonds shall mature, subject to the right of prior redemption as hereinafter set
forth, annually on February 1, as follows:
Principal Principal
Year Amount Year Amount
2007 $750,000 2018 $750,000
2008 750,000 2019 750,000
2009 750,000 2020 750,000
2010 750,000 2021 750,000
2011 750,000 2022 750,000
2012 750,000 2023 750,000
2013 750,000 2024 750,000
2014 750,000 2025 750,000
2015 750,000 2026 750,000
2016 750,000
2017 750,000
Interest will be payable to the registered owners of the Bonds shown on the
records of the hereinafter designated Bond Registrar of the Issuer on the record date which shall
~-~_._---_.__.__..._--_.---
149
be the fifteenth day of the calendar month (whether or not a business day) next preceding an
interest payment date.
3. The Bonds will be issued in fully registered form by means of a book
entry system with no physical distribution of bond certificates made to the public. One bond
certificate for each maturity will be issued to The Depository Trust Company, New York, New
York ("DTC"), and immobilized in its cllstody. The book entry system will evidence ownership
of the Bonds in principal amounts of $5,000 or whole multiples thereof, with transfers of
beneficial ownership affected on the records of DTC and its participants pursuant to rules and
procedures established by DTC. Interest on the Bonds will be payable at the times stated in the
preceding paragraph, and principal of the Bonds will be paid annually on February 1, as set forth
in the foregoing maturity schedule, to DTC or its nominee as registered owner of the Bonds.
Transfer of principal and interest payments to participants of DTC will be the responsibility of
DTC; transfer of principal and interest payments to beneficial owners by participants of DTC
will be the responsibility of such participants and other nominees of beneficial owners. The
Issuer will not be responsible or liable for maintaining, supervising or reviewing the records
maintained by DTC, its pm1icipants or persons acting through sueh participants.
In the event that (a) DTC determines not to continue to act as securities depository
for the Bonds, or (b) the Issuer determines that continuation of the book entry system of evidence
and transfer of ownership of the Bonds would adversely affect the interests of the beneficial
owners of the Bonds, the Issuer will discontinue the book entry system with DTC. If the Issuer
fails to identify another qualified securities depository to replace DTC, the Issuer will
authenticate and deliver replacement Bonds in the form of fully registered certificates.
Each Bond shall bear interest from the interest payment date next preceding the
date on which it is authenticated unless it is (a) authenticated upon an interest payment date in
which event it shall bear interest from such interest payment date, or (b) authenticated prior to
the first interest payment date in which event it shall bear interest from its date; provided,
however, that if at the time of authentication interest is in default, such Bond shall bear interest
from the date to which interest has been paid.
The principal of and the interest on the Bonds shall be payable in any eoin or
currency of the United States of America which is legal tender for the payment of public and
private debts on the respective dates of payment thereof.
4. The Bonds shall bear the manual or facsimile signatures of the Chairman
or the Vice Chairman and the Clerk to the Board of Commissioners of the Issuer and the official
seal or a facsimile of the official seal of the Issuer shall be impressed or imprinted, as the case
may be, on the Bonds.
The certificate of the Local Government Commission of North Carolina to be
endorsed on all Bonds shall bear the manual or facsimile signature of the Secretary or Acting
Secretary of said Commission or of a representative designated by said Secretary or Acting
---- ------._---
150
Secretary and the certificate of authentication of the Bond Registrar to be endorsed on all Bonds
shall be executed as provided hereinafter.
In case any officer of the Issuer or the Local Government Commission of North
Carolina whose manual or facsimile signature shall appear on any Bonds shall cease to be such
officer before the delivery of such Bonds, such manual or facsimile signature shall nevertheless
be valid and sufficient for all purposes the same as if he had remained in offi.ce until such
delivery, and any Bond may bear the manual or facsimile signatures of such persons as at the
actual time of the execution of such Bond shall be the proper officers to sign such Bond although
at the date of such Bond such persons may not have been such officers.
No Bond shall be valid or become obligatory for any purpose or be entitled to any
benefit or security under this resolution until it shall have been authenticated by the execution by
the Bond Registrar ofthe certificate of authentication endorsed thereon.
5. The Bonds and the endorsements thereon shall be in substantially the
following form:
151
NO. R- $
United States of America
State of North Carolina
NEW HANOVER COUNTY
GENERAL OBLIGATION SCHOOL BOND, SERIES 2006
INTEREST MATURITY DATE OF
RATE DATE ORIGINAL ISSUE CUSIP
February 1,_ February 1,2006
REGISTERED OWNER: CEDE & CO.
PRINCIPAL SUM: DOLLARS
NEW HANOVER COUNTY (hereinafter referred to as "County"), a political
subdivision of the State of North Carolina, acknowledges itself indebted and for value received
hereby promises to pay to the registered owner named above, on the date specified above, upon
surrender hereof, at the office of the Finance Officer of the County (the "Bond Registrar"), the
principal sum shown above and to pay to the registered owner hereof, at his address as it appears
on the bond registration books of the County, interest on such principal sum from the date of this
bond [or from the February 1 or August 1 next preceding the date of authentication to which
interest shall have been paid, unless such date of authentication is on February I or August 1 to
which interest shall have been paid, in which case from such date], such interest to the maturity
hereof being payable on August 1, 2006 and semi-annually thereafter on February I and August
I of each year, at the rate per annum specified above, until payment of such principal sum. The
interest so payable on any such interest payment date will be paid to the person in whose name
this bond is registered at the close of business on the record date for such interest, which shall be
the fifteenth day of the calendar month (whether or not a business day) next preceding such
interest payment date. Both the principal of and the interest on this bond shall be paid in any
coin or currency of the United States of America that is legal tender for the payment of public
and private debts on the respective dates of payment thereof
This bond is issued in accordance with the Registered Public Obligations Act,
Chapter l59E of the General Statutes of North Carolina, and pursuant to The Local Government
Finance Act of the State of North Carolina, as amended, a bond order adopted by the Board of
Commissioners of the County on March 14, 2005 (the "Bond Order") and a resolution adopted
by said Board of Commissioners on January 9, 2006 (the "Resolution") to provide funds,
-----~---- ------.
152
together with other funds of the County, to pay capital costs of providing additional school
facilities and improvements to existing school facilities for the County. The issuance of this
bond and the contracting of the indebtedness evidenced thereby have been approved by a
majority of the qualified voters of the County voting at a special election held in the County on
May 10,2005.
The bonds will be issued in fully registered form by means of a book entry system
with no physical distribution of bond certificates made to the public. One bond certificate for
each maturity will be issued to The Depository Trust Company, New York, New York ("DTC")
and immobilized in its custody. The book entry system will evidence ownership of the bonds in
principal amounts of $5,000 or whole multiples thereof, with transfers of beneficial ownership
affected on the records of DTC and its participants pursuant to rules and procedures established
by DTC. Transfer of principal and interest payments to participants of DTC will be the
responsibility of DTC; transfer of principal and interest payments to bencficial OVv'llers by
participants of DTC will be the responsibility of such participants and other nominees of
beneficial owners. The County will not be responsible or liable for maintaining, supervising or
reviewing the records maintained by DTC, its participants or persons acting through such
participants.
The bonds maturing on and after February 1, 2017 shall be subject to redemption
prior to their stated maturities at the option of the County on or after February 1,2016, in whole
or in part at any time, at a redemption price of 100% of such principal amounts plus interest
accrued to the date fixed for redemption. If less than all of the bonds are called for redemption,
the bonds to be redeemed shall be selected in such manner as the County shall determine;
provided, however, that the portion of any bond to be redeemed shall be in the principal amount
of $5,000 or some multiple thereof and that, in selecting bonds for redemption, the Bond
Registrar shall treat each bond as representing that number of bonds which is obtained by
dividing the principal amount of such bond by $5,000. For so long as a book-entry system with
DTC is used for determining beneficial ownership of the bonds, if less than all of the bonds
within a maturity are to be redeemed, DTC and its participants shall determine which of the
bonds within a maturity are to be redeemed.
Not more than forty-five (45) nor less than thirty (30) days before the redemption
date of any bonds to be redeemed, whether such redemption be in whole or in part, the County
shall cause a notice of such redemption to be mailed, postage prepaid, to DTC or its nominee.
On the date fixed for redemption, notice having been given as aforesaid, the bonds or portions
thereof so called for redemption shall be due and payable at the redemption price provided for
the redemption of such bonds or potions thereof on such date. If a portion of this bond shall be
called for redemption, a new bond or bonds in principal amount equal to the unredeemed portion
hereof will be issued to DTC or its nominee upon the surrender hereof
The Bond Registrar shall keep at her office the books of said County for the
registration and registration of transfer of bonds. The transfer of this bond may be registered
only upon such books and as otherwise provided in the Resolution upon the surrender hereof to
the Bond Registrar together with an assignment duly executed by the registered owner hereof or
153
his attorney or legal representative in such form as shall be satisfactory to the Bond Registrar.
Upon any such registration of transfer, the Bond Registrar shall deliver in exchange for this bond
a new bond or bonds, registered in the name of the transferee, of authorized denominations, in an
aggregate principal amount equal to the unpaid principal amount of this bond, of the same
maturity and bearing interest at the same rate.
Bonds, upon surrender thereof at the office of the Bond Registrar together with an
assignment duly executed by the registered OV."l1er or his attorney or legal representative in such
form as shall be satisfactory to the Bond Registrar, may, at the option of the registered owner
thereof, be exchanged for an equal aggregate principal amount of registered Bonds of the same
maturity, of any denomination or denominations authorized by the Resolution and bearing
interest at the same rate.
The Bond Registrar shall not be required to exchange or register the transfer of
any bond during a period beginning at the opening of business fifteen (15) days before the day of
the mailing of a notice of redemption of bonds or any portion thereof and ending at the close of
business on the day of such mailing or of any bond called for redemption in whole or in part.
It is hereby certified and recited that all conditions, acts and things required by the
Constitution or statutes of the State of North Carolina to exist, be performed or happen precedent
to or in the issuance of this bond, exist, have been performed and have happened, and that the
amount of this bond, together with all other indebtedness of the County, is within every debt and
other limit prescribed by said Constitution or statutes. The faith and credit of the County are
hereby pledged to the punctual payment of the principal of and interest on this bond in
accordance with its terms.
This bond shall not be valid or become obligatory for any purpose or be entitled
to any benefit or security under the Bond Order or the Resolution mentioned herein until this
bond shall have been endorsed by the authorized representative of the Local Government
Commission of North Carolina and authenticated by the Bond Registrar.
IN WITNESS WHEREOF, the County has caused this bond [to be manually
signed by] [to bear the facsimile signatures of] the [Chairman] [Vice Chairman] and the Clerk to
the Board of Commissioners of the County and [a facsimile of] its official seal to be [imprinted]
[impressed] hereon, and this bond to be dated February 1,2006.
[Vice] Chairman,
Board of Commissioners
(SEAL)
Clerk,
Board of Commissioners
154
CERTIFICATE OF LOCAL GOVERNMENT COMMISSION
The issuance of the within bond has been approved under the provisions of The
Local Government Bond Act of North Carolina.
Acting Secretary, Local Government
Commission
CERTIFICATE OF AUTHENTICATION
This bond is one of the Bonds of the issue designated herein and issued under the
provisions ofthe within-mentioned bond order and resolution.
NEW HANOVER COUNTY
Finance Officer, as Bond Registrar
By
Authorized Signatory
Date of Authentication:
155
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto , the within Bond and irrevocably
appoints , attorney-in-fact, to transfer the within Bond on the books kept for
registration thereof: with full power of substitution in the premises.
Dated:
NOTICE: The signature to this assignment
must correspond with the name as it appears
upon the face of the within Bond in every
particular, without any alteration whatsoever.
Signature Guaranteed:
Notice: Signature must be guaranteed by an
institution which is a participant in the
Securities Transfer Agent Medallion
Program (STAMP) or similar program.
156
6. The Bonds maturing on and after February 1, 2017 shall be subject to
redemption prior to their stated maturities at the option of the Issuer on or aftcr February 1,2016,
in whole or in part at any time, at a redemption price of 100% of such principal amounts plus
interest accrued to the date fixed for redemption. If less than all of the Bonds are called for
redemption, the Bonds to be redeemed shall be selected in such manner as the Issuer shall
determine; provided, however, that the portion of any Bond to be redeemed shall be in the
principal amount of $5,000 or some multiple thereof and that, in selecting Bonds for redemption,
the hereinafter designated Bond Registrar shall treat each Bond as representing that number of
Bonds which is obtained by dividing the principal amount of such Bonds by $5,000. For so long
as a DTC book-entry system is used for determining beneficial ownership of the Bonds, if less
than all of the Bonds within a maturity are to be redeemed, DTC and its participants shall
determine which ofthe Bonds within a maturity are to be redeemed.
Not more than forty-five (45) nor less than thilty (30) days before the redemption
date of any Bonds to be redeemed, whether such redemption be in whole or in part, the Issuer
shall cause a notice of such redemption to be mailed, postage prepaid, to DTC or its nominee.
Each such notice shall identify the Bonds or portions thereof to be redeemed by reference to their
numbers and shall set forth the date designated for redemption, the redemption priee to be paid
and the maturities of the Bonds to be redeemed. If any Bond is to be redeemed in part only, the
notice of redemption shall state also that on or after the redemption date, upon surrender of such
Bond, a new registered Bond or Bonds in principal amount equal to the unredeemed portion of
such bond will be issued.
On or before the date fixed for redemption, moneys shall be deposited with the
Bond Registrar to pay the principal of the Bonds or portions thereof called for redemption as
well as the interest accruing thereon to the redemption date thereof. On the date fixed for
redemption, notice having been given in the manner and under the conditions hereinabove
provided, the Bonds or portions thereof called for redemption shall be due and payable at the
redemption price provided therefor, plus accrued interest to such date.
If a portion of a Bond shall be selected for redemption, the registered owner
thereof or his attorney or legal representative shall present and surrender such Bond to the Bond
Registrar for payment of the principal amount thereof so called for redemption and the interest
accruing thereon to the date of redemption, and the Bond Registrar shall authenticate and deliver
to or upon the order of such registered owner or his legal representative, without charge therefor,
for the unredeemed portion of the principal amount of the Bond so surrcndered, a registered
Bond or Bonds of the same maturity, of any denomination or denominations authorized by this
resolution and bearing interest at the same rate.
7. Bonds, upon surrender thereof at the office of the Bond Registrar together
with an assignmcnt duly executed by the registered owner or his attorney or legal representative
in such form as shall be satisfactory to the Bond Registrar, may, at the option of the registered
owner thereof: be exchanged for an equal aggregatc principal amount of registered Bonds of the
same maturity, of any denomination or denominations authorized by this resolution and bearing
interest at the same rate.
-_._---_.__..__._._._-----~_._-------
157
The transfer of any Bond may be registered only upon the registration books of
the Issuer upon the surrender thereof to the Bond Registrar together with an assignment duly
executed by the registered owner or his attorney or legal representative in such form as shall be
satisfactory to the Bond Registrar. Upon any such registration of transfer, the Bond Registrar
shall authenticate and deliver in exchange for such Bond a new Bond or Bonds, registered in the
name of the transferee, of any denomination or denominations authorized by this Resolution, in
an aggregate principal amount equal to the unpaid principal amount of such Bond so
surrendered, of the same maturity and bearing interest at the same rate.
In all cases in which Bonds shall be exchanged or the transfer of Bonds shall be
registered hereunder, the Bond Registrar shall authenticate and deliver at the earliest practicable
time Bonds in accordance with the provisions of this Resolution. All Bonds surrendered in any
such exchange or registration of transfer shall forthwith be cancelled by the Bond Registrar. The
Issuer or the Bond Registrar may make a charge for shipping and out-of-pocket costs for every
such exchange or registration of transfer of Bonds sufficient to reimburse it for any tax or other
governmental charge required to be paid with respect to such exchange or registration oftransfer,
but no other charge shall be made for exchanging or registering the transfer of Bonds under this
Resolution. The Bond Registrar shall not be required to exchange or register the transfer of any
Bond during a period beginning at the opening of business fifteen (15) days before the day of the
mailing of a notice of redemption of Bonds or any portion thereof and ending at the close of
business on the day of such mailing or of any Bond called for redemption in whole or in pm1
pursuant to this Resolution.
The Issuer shall appoint such registrars, transfer agents, depositaries or other
agents and make such other arrangements as may be necessary for the registration, registration of
transfer and exchange of Bonds within a reasonable time according to then commercial standards
and for the timely payment of principal and interest with respect to the Bonds. The Issuer's
Finance Officer is hereby appointed the registrar, transfer agent and paying agent for the Bonds
(collectively, the "Bond Registrar"), subject to the right of the governing body of the Issuer to
appoint another Bond Registrar, and as such shall keep at his office in Washington, North
Carolina, the books of the Issuer for the registration, registration of transfer, exchange and
payment of the Bonds as provided in this Resolution.
8. The Local Government Commission of North Carolina is hereby requested
to sell the Bonds and to state in the Notice of Sale of the Bonds that bidders may name one rate
of interest for part of the Bonds and another rate or rates for the balance of the Bonds. The
Bonds shall bear interest at such rate or rates as may be named in the proposal to purchase said
Bonds which shall be accepted by the Local Government Commission, provided that the true
interest cost to the Issuer shall not exceed 5.5%.
9. The Chairman and the Vice Chairman of the Board of Commissioners, the
Clerk to the Board of Commissioners, the County Manager and the Finance Officer of the Issuer
are hereby authorized and directed to cause the Bonds to be prepared and, when they shall have
been duly sold by said Local Government Commission, to execute the Bonds and have the Bonds
158
endorsed and authenticated as provided herein and to deliver the Bonds to the purchaser or
purchasers to whom they may be sold by said Local Government Commission.
10. The Issuer covenants that it will not take any action, or fail to take any
action, if any such action or failure to take action would adversely affect the exclusion of interest
paid on the Bonds from gross income of the owners thereof for federal income tax purposes.
II. The Issuer hereby undertakes, for the benefit of the beneficial owners of
the Bonds, to provide:
(a) by not later than seven months from the end of each fiscal year of the Issuer,
commencing with the fiscal year ending June 30, 2006, to each nationally
recognized municipal securities information repository ("NRMSIR") and to the
state information depository for the State of North Carolina ("SID"), if any,
audited financial statements of the Issuer for such fiscal year, if available,
prepared in accordance with Section 159-34 of the General Statutes of North
Carolina, as it may be amended from time to time, or any successor statute, or, if
such audited financial statements of the Issuer are not available by seven months
from the end of such fiscal year, unaudited financial statements of the Issuer for
such fiscal year to be replaced subsequently by audited financial statements of the
Issuer to be delivered within 15 days after such audited financial statements
become available for distribution;
(b) by not later than seven months from the end of each fiscal year of the Issuer,
commencing with the fiscal year ending June 30, 2006, to each NRMSIR, and to
the SID, if any, (i) the financial and statistical data as of a date not earlier than the
end of such fiscal year for the type of information included under the heading
"The County - Debt Information and - Tax Information" in the Official Statement
relating to the Bonds (excluding any information on overlapping or underlying
units) and (ii) the combined budget of the Issuer for the current fiscal year, to the
extent such items are not included in the audited financial statements referred to
in (a) above;
(c) in a timely marmer, to each NRMSIR or to the Municipal Securities Rulemaking
Board ("MSRB"), and to the SID, if any, notice of any of the following events
with respect to the Bonds, if material:
(1) principal and interest payment delinquencies;
(2) non-payment related defaults;
(3) unscheduled draws on debt service reserves reflecting financial
difficulties;
(4) unscheduled draws on credit enhancements reflecting financial
difficulties;
__________n__
159
(5) substitution of credit or liquidity providers, or their failure to perform;
(6) adverse tax opinions or events affecting the tax-exempt status of the
Bonds;
(7) modification to the rights of the beneficial owners of the Bonds;
(8) bond calls;
(9) defeasances;
(10) release, substitution or sale of any property securing repayment of the
Bonds;
(11) rating changes; and
(d) in a timely manner, to each NRMSIR or to the MSRB, and to the SID, if any,
notice of a failure of the Issuer to provide required annual financial information
described in (a) or (b) above on or before the date specified.
At present, Section 159-34 of the General Statutes of North Carolina requires the
Issuer's financial statements to be prepared in accordance with generally accepted accounting
principles and to be audited in accordance with generally accepted auditing standards.
If the Issuer fails to comply with the undertaking described above, any beneficial
owner of the Bonds may take action to protect and enforce the rights of all beneficial owners
with respect to such unde11aking, including an action for specific performance; provided,
however, that failure to comply with such undertaking shall not be an event of default and shall
not result in any acceleration of payment of the Bonds. All actions shall be instituted, had and
maintained in the manner provided in this paragraph for the benefit of all beneficial owners of
the Bonds.
The Issuer reserves the right to modify from time to time the information to be
provided to the extent necessary or appropriate in the judgment of the Issuer, provided that any
such modification will be done in a manner consistent with Rule 15c2-l2 issued under the
Securities Exchange Act of 1934, as it may be amended from time to time ("Rule 15c2-l2"), and
provided further that:
(a) any such modification may only be made in connection with a change in
circumstances that arises from a change in legal requirements, change in law, or
change in the identity, nature, or status of the Issuer;
(b) the information to be provided, as modified, would have complied with the
requirements of Rule l5c2-12 as of the date of the Official Statement relating to
the Bonds, after taking into account any amendments or interpretations of Rule
15c2-12, as well as any changes in circumstances; and
160
(c) any such modification does not materially impair the interests of the beneficial
owners, as determined either by parties unaffiliated with the Issuer (such as bond
counsel), or by the approving vote of the registered owners of a majority in
principal amount of the Bonds pursuant to the terms of this Resolution, as it may
be amended from time to time, at the time of the amendment.
To the extent permitted by the U.S. Securities and Exchange Commission, the
County may discharge its undertaking described above by transmitting those documents or
notices electronically to www.disclosureusa.org.
Any annual financial information containing modified operating data or financial
information shall explain, in narrative form, the reasons for the modification and the impact of
the change in the type of operating data or financial information being provided.
The provisions of this Section 11 shall terminate upon payment, or provisions
having been made for payment in a manner consistent with Rule 15c2-12, in full of the principal
of and interest on all of the Bonds.
12. The blanket Letter of Representations, as requested by DTC, is hereby
approved and confirmed.
13. The Preliminary Official Statement dated on or about December 30, 2005,
setting forth financial and statistical data in connection with the offering of the Bonds (the
"Preliminary Official Statement") is hereby approved. In connection with this approval, the
Board of Commissioners of the Issuer has examined copies of the Preliminary Official Statement
and has, to the extent and in the manner it has deemed necessary, discussed the contents thereof
with officers of the administration of the Issuer. The Board of Commissioners of the Issuer does
hereby recite that, upon its examination and discussions, nothing has come to its attention which
would lead it to believe that said Preliminary Official Statement contains any untrue statement of
a material fact or omits to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The Chairman, the Vice
Chairman, the County Manager and the Finance Officer of the Issuer are each hereby authorized
to approve changes in such Preliminary Official Statement and to execute such Preliminary
Official Statement and the final Official Statement for and on behalf of the Issuer.
14. The Chairman and Vice Chairman of the Board of Commissioners, the
County Manager, the Finance Officer and the Clerk to the Board of Commissioners and the other
officers of the Issuer are hereby authorized and directed to execute and deliver for and on behalf
of the Issuer any and all financing statements, certificates, documents or other papers and to
perform any and all acts they may deem necessary or appropriate in order to carry out the intent
of this Resolution and the matters herein authorized.
161
This the 9th day of January, 2006.
NEW HANOVER COUNTY
(SEAL)
Robert G. Greer, Chairman
ATTEST:
Sheila L. Schult, Clerk to the Board
162
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
REQU EST FOR BOARD ACTION
Meeting Date: 01/09/06
Additional Item #: 2 Estimated Time: Page Number:
Department: County Manager Presenters: Wanda M. Copley, County Attorney
Bruce T. Shell, County Manager
Contacts: Wanda M. Copley, County Attorney
Bruce T. Shell, County Manager
SUBJECT:
Variable Rate General Obligation School Bonds
BRIEF SUMMARY:
The Board of Commissioners adopted a school bond order on March 14,2005 approving the issuance of school bonds in
the amount of $123,000,000. The second sale of these bonds will be in the form of variable rate general obligation school
bonds in the amount of $15,000,000. The purchase price of the bonds shall be 100% of the par amount of the bonds, and
the maximum initial interest rate shall be 12% per annum.
The Board is asked to consider and approve the variable rate general obligation school bond resolution which includes, but
is not limited to, the following steps:
Request the Local Government Commission of North Carolina to sell the bonds with a variable interest rate at a
private sale and without advertisement to the Underwriter and designates the County Manager and the Finance
Director or the Interim Finance Director as the persons who must approve the price or prices at which the Bonds
are sold by the North Carolina Local Government Commission;
Approve all aspects of the Tender Agent Agreement, Bond Purchase Agreement, Standby Bond Purchase
Agreement, Remarketing Agreement and the Official Statement. Copies of these documents are available for
review in the Board of Commissioners office;
Authorize and direct the appropriate persons as listed in the resolution to execute and deliver said documents; and
Authorize, empower and direct the County Manager, Finance Director or Interim Finance Director to make any
changes, modification, additions or deletions to Exhibit 1 of this resolution.
RECOMMENDED MOTION AND REQUESTED ACTIONS:
Approve resolution.
FUNDING SOURCE:
Will above action result in: No Change In Position(s) Number of Positions:
Explanation:
ATTACHMENTS:
REVIEWED BY:
LEGAL: FINANCE: Approve BUDGET: HUMAN RESOURCES:
163
COUNTY MANAGER'S COMMENTS AND RECOMMENDATIONS:
COMMISSIONERS' ACTIONS/COMMENTS:
A motion to introduce a resolution entitled "Resolution Providing for the Issuance of $15,000,000 Variable Rate General
Obligation School Bonds, Series 2006" was approved 5-0. The resolution was approved 5-0.
164
RESOLUTION PROVIDING FOR THE ISSUANCE OF
$15,000,000 VARIABLE RATE GENERAL
OBLIGATION SCHOOL BONDS, SERIES 2006
* * * * * *
WHEREAS, the County of New Hanover, North Carolina (the "Issuer") has considered
and evaluated both fixed and variable rate debt alternatives;
WHEREAS, the Issuer has considered and recognized that the current interest rates on
fixed rate debt instruments are low and has determined that the estimated interest rate at which
fixed rate debt instruments could be issued is 4.50%;
WHEREAS, the Issuer has considered and recognized that variable interest rate debt
instruments subject the Issuer to the risk of higher interest rates in the future, that the rate may be
higher than the fixed rates that are currently available to the Issuer, and that in addition to the
variable interest cost, the Issuer must pay the fees of a liquidity provider and a remarketing
agent, which fees will increase the cost of the variable rate debt;
WHEREAS, the Issuer believes that for this issue variable rate debt financing is
preferable because (a) the initial interest rate is substantially below the fixed rate indicated
above, (b) a variable rate provides the possibility of substantial cost savings over the life of the
issue, and (c) the interest rate can be fixed at any time;
WHEREAS, a bond order authorizing $123,000,000 General Obligation School Bonds
(the "Bonds") of the Issuer was adopted by the Board of Commissioners (the "Board") on March
14, 2005 and was approved by the vote of a majority of the qualified voters of the Issuer who
voted thereon at a special election duly ealled and held on May 10,2005;
WHEREAS, none of the Bonds mentioned above have been issued;
WHEREAS, it is necessary at this time to issue $15,000,000 of such Bonds mentioned
above;
WHEREAS, the period of usefulness of the capital projects to be financed by the
issuance of the bonds is a period of 40 ycars, computed from the date ofthe Bonds; and
WHEREAS, copies of the forms of the following documents relating to the transactions
described above have been filed with the Issuer and have been made available to the Board of the
Issuer:
(a) the Bond Purchase Agreement to be dated on or about February 8, 2006 (the
"Bond Purchase Agreement"), among the North Carolina Local Government
Commission, the Issuer and Wachovia Bank, National Association, as underwriter
(the "Underwriter");
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165
(b) the Standby Bond Purchase Agreement dated as of February 1, 2006 (the
"Standby Bond Purchase Agreement"), among the County, Wachovia Bank,
National Association, as liquidity provider, and First-Citizens Bank & Trust
Company, as paying agent;
(c) the Remarketing Agreement dated as of February 1, 2006 (the "Remarketing
Agreement"), by and between the Issuer and Wachovia Bank, National
Association, as remarketing agent (the "Remarketing Agent") for the Bonds;
(d) the Tender Agent Agreement dated as of February 1, 2006 (the "Tender Agent
Agreement"), among the Issuer, the Remarketing Agent and First-Citizens Bank
& Trust Company, as tender agent and paying agent; and
(e) the Official Statement to be dated on or about January 30, 2006 (the "Official
Statement") with respect to the Bonds.
NOW, THEREFORE, BE IT RESOLVED by the Board of Commissioners of the Issuer:
1. The Bonds to be issued pursuant to the preceding paragraphs shall be designated
"County of New Hanover, North Carolina Variable Rate General Obligation School Bonds,
Series 2006" (hereinafter referred to as the "Bonds"). The Bonds shall be issued pursuant to the
terms of G.S. 159-79. The North Carolina Local Government Commission will specifically
determine pursuant to G.S. l59-79(a)(1) that a Credit Facility in addition to the Standby Bond
Purchase Agreement referred to below is not required.
2. The actions of the County Manager and the Deputy finance Director of the Issuer
in applying to the North Carolina Local Government Commission to sell the Bonds at privatc
sale are hereby ratified and approved.
3. The Bonds shall have a final maturity of February 1, 2026 and be issued
substantially in the form and in accordance with the terms and details set forth in Exhibit 1
attached hereto and incorporated herein by reference, together with such changes not inconsistent
with the general tenor hereof and thereof as the County Manager and the Finance Director or the
Interim Finance Director, with the advice of counsel, may deem appropriate, thcir execution of
closing certificates in connection with the issuance of the Bonds to evidence conclusively the
authorization and approval thereof by the Board.
4. The Board hereby requests the North Carolina Local Government Commission to
sell the Bonds with a variable interest rate at private sale and without advertisement to the
Underwriter and designates the County Manager and the Finance Director or the Interim Finance
Director as the persons who must approve the price or prices at which the Bonds are sold by the
North Carolina Local Government Commission. The purchase price of the Bonds shall be 100%
of the par amount of the Bonds, and the maximum initial interest ratc shall be 12% per annum.
5. The forms, terms, provisions and distribution and use by the Underwriter of the
Tender Agent Agreement, the Bond Purchase Agreement, the Standby Bond Purchase Agreement,
the Remarketing Agreement and the Official Statement with respect to the Bonds arc hereby
approved in all respects, and each of the officers of the Board, the County Manager and the
- -- -------------..---..-----------
166
fo'inance Director or Interim Enance Director are hereby authorized and directed to execute and
dcliver those documents in substantially the forms presented to this meeting, together with such
changes not inconsistent with the general tenor hereof and thereof as they, with the advice of
counsel, may deem necessary and appropriate, such execution and delivery to evidence
conclusively the authorization and approval thereof by the Board. Each of those officers and
employees are also authorized and directed to execute and deliver any certificates, agreements or
other documents they, with the advice of counsel, may deem neceSSaIY or appropriate to effect the
transactions contemplated by this resolution and the other documents described above, such
execution and delivery to be conclusive evidence of the approval and authorization thereof by the
Board.
6. From the adoption of this resolution until the date the bonds are issued, the County
Manager aIld the Finance Director or the Interim Finance Director of the Issuer are hereby
authorized, empowered and directed to make any changes, modifications additions or deletions to
Exhibit I of this resolution as shall to them seem necessary, desirable or appropriate that may be
requested by the rating agencies rating the Bonds or other technical changes to the provisions of
the Bonds necessary to implement the intent of this resolution. Such changes, modifications,
additions or deletions to Exhibit 1 of this resolution shall be set forth in a certificate executed by
the County Manager and the Finance Director or the Interim Finance Director of the Issuer on the
date the Bonds are issued.
7. The Issuer covenants that it will not take any action, or fail to take any action, if any
such action or failure to take action would adversely affect the exclusion from gross income of
interest on the Bonds for federal income tax purposes.
8. This resolution shall take effect immediately upon its adoption.
This the 9th day of January, 2006.
NEW HANOVER COUNTY
(SEAL)
Robert G. Greer. Chairman
ATTEST:
Sheila L. Schult, Clerk to the Board
_._-~_."-~_._---------
167
EXHIBIT 1
[See Attachment]
168
LLGM Draft #2
January 3, 2006
EXHIBIT 1
TO
RESOLUTION PROVIDING FOR THE ISSUANCE OF
$15,000,000 COUNTY OF NEW HANOVER, NORTH CAROLINA
VARIABLE RATE GENERAL OBLIGATION SCHOOL BONDS,
SERIES 2006
Adopted on January 9,2006
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169
TABLE OF CONTENTS
ARTICLE I.
DEFINITIONS
Section 101 Meaning of Certain Words and Tcrms.....................................................................1
Section 102 Rules of Construction................. .............................. .............................. .................6
Section 103 Computation of Time........................................................................ .......................6
ARTICLE II.
DET AILS OF BONDS
Section 201 Maturity of Bonds.... ............... ............... ..................................................................6
Section 202 Form of Bonds ................................... .................................. ....................... ........ .....6
Section 203 Details of Bonds................................. ............... ................... ....................... ........ ...21
Section 204 Execution of Bonds............ ............... ............... ....................... ............................ ..22
Section 205 Terms of Bonds ... ................................................................................................ ..23
Section 206 Purchase of Bonds............... ............... ................................... ............................... ..31
Section 207 The Liquidity Facility.......................... ................................ ..... .............................35
Section 208 Authentication of Bonds..... ............... ................. ................... ..... .................... .......3 7
Section 209 Exchange of Bonds ......... ............... ............... .................... .....................................38
Section 210 Registration and Transfer of Bonds................................. ........................... ...........38
Section 211 Ownership of Bonds ....... ............... .................................. ..... ............................ .....3 9
Section 212 Initial Delivery of Bonds. .............. ................................................................ ........39
Section 213 Delivery of Purchased Bonds........................................................ ...... ...................39
Section 214 Mutilated, Destroyed, Stolen or Lost Bonds..........................................................40
Section 215 Early Maturity of Bonds .......................................................................................40
ARTICLE III.
REDEMPTION OF BONDS
Section 301 Terms of Redemption ............. .............. .................. ............................................. ..41
Section 302 Selection of Bonds to be Redeemed ......................................................................42
Section 303 Election to Redeem and Notice to Paying Agent; Redemption Notice .................42
Section 304 Effect of Calling for Redemption ..........................................................................43
Section 305 Redemption of Portion of Bond ............................................................................44
Section 306 Cancellation ............................ ............. ............... ................................................ ..44
ARTICLE IV.
REMARKETING AGENT, TENDER AGENT, AND PURCHASE AND REMARKETING
OF BONDS
Section 40 I Remarketing Agent and Tender Agent .................................................................44
i
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Section 402 Qualifications of Remarketing Agent and Tender Agent; Resignation;
Removal .................. ................. ......... ............... ....................... ..... ....................... ..45
Section 403 Notice of Bonds Delivered for Purchase; Purchase of Bonds ..............................46
Section 404 Remarketing of Bonds; Notice ofInterest Rates ..................................................47
Section 405 Delivery of Bonds .................. ................................................. ....................... .......48
Section 406 Delivery of Proceeds of Sale... .............................. ................. ................................48
Section 407 Draws on Liquidity Facility to Pay Purchase Price of Bonds................................48
ARTICLE V.
SUPPLEMENTAL RESOLUTIONS
Section 501 Supplemental Resolutions........... ............... ............................................. ...............49
ARTICLE VI.
MISCELLANEOUS PROVISIONS
Section 601 Manner of Giving Notice ......................................................................... ...... .......49
Section 602 Substitute Mailing ............ .............. ............... ................... ............................ ....... ..51
Section 603 Headings ........... ............... ................ ................................. ............................ ..... ....51
Section 604 Further Authority.... ............. ................................................ ............................ ..... .51
Section 605 Days Other than Business Days ............................................................................52
Section 606 Notice to Moody's and S&P .................................................................................52
Section 607 References to and Rights of Bank..........................................................................52
Section 608 Governing Law..... ................ .............. ............... .................... .............................. ..52
Section 609 Severability of Invalid Provisions.............................................................. ...... ......52
Section 610 Continuing Disclosure Obligation ................................ ............................. ...... ......52
11
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171
ARTICLE I.
DEFINITIONS
Section ] 01 Meaning of Certain Words and Terms. In addition to words and terms
elsewhere defined in this Exhibit], the following words and terms as used in this Exhibit 1 shall
have the following meanings, unless some other meaning is plainly intended:
"Authorized Denominations" means (i) with respect to any Long-Term Interest Rate
Period, $5,000 and any integral multiple thereof and (ii) with respect to any Short-Term Interest
Rate Period or Weekly Interest Rate Period, $100,000 and any integral multiple of $5,000 in
excess of$]OO,OOO.
"Authorized Liquidity Termination" means a termination of the Liquidity Facility before
its expiration date pursuant to provisions in the Liquidity Facility that allow the Bank to
terminate its obligation to purchase Bonds immediately upon the occurrence of certain events set
forth therein without giving any advance notice to the Issuer or the Owners.
"Available Moneys" means (i) moneys which have been paid to the Tender Agent by the
Issuer and have been on deposit with the Tender Agent for at least 124 days during and prior to
which no Event of Bankruptcy shall have occurred, (ii) any other moneys, it~ in the opinion of
nationally recognized counsel experienced in bankruptcy matters, the application of such moneys
will not constitute a voidable preference in the event of the occurrence of an Event of
Bankruptcy, and (iii) investment earnings on any of the moneys described in clauses (i) and (ii)
of this definition.
"Bank" means Wachovia Bank, National Assocation in its capacity as party to the
Standby Agreement, until a Substitute Liquidity Facility is issued and effective in accordance
with Section 207 hereof, and thereafter "Bank" shall mean the obligor on such Substitute
Liquidity Facility.
"Bank Bond Interest Rate" means Bank Bond Rate as defined in Section 1.01 of the
Standby Agreement or the equivalent rate charged by the Bank in any Substitute Liquidity
Facility; provided, however, that if no such rate is specified in any Substitute Liquidity Facility
then in effect, then Bank Bonds shall continue to bear interest and such interest shall accrue and
be payable as specified herein as if such Bank Bonds were not Bank Bonds.
"Bank Bonds" means any Bonds purchased with moneys described in Section 403(b )(ii)
hereof until such Bonds are remarketed, as provided in the Tender Agreement.
"Bankruptcy Code" means Title 11 of the United States Code, as amended, and any
successor statute or statutes having substantially the same function.
"Bond Counsel" means a finn of attorneys knowledgeable and experienced in the law
relating to municipal securities and the law relating to the federal and State of North Carolina
taxation of interest thereon and retained by the Issuer.
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172
"Bond Interest Term" means, with respect to any Bond, each period established in
accordance with Section 205(1) hereof during which such Bond shall bear interest at a Bond
Interest Term Rate.
"Bond Interest Term Rate" means, with respect to each Bond, a non-variable interest rate
on such Bond established periodically in accordance with Section 205(1) hcreof.
"Bond Purchase Fund" means the fund so designated which is established with the
Tender Agent pursuant to Section 401 (b)(ii) hereof.
"Bonds" means the Bonds so designated by and issued under this Resolution.
"Business Day" means any day other than (a) a day on which banks located in New York,
New York or the cities in which the principal office of any of the Paying Agent, the Tender
Agent, the Remarketing Agent or the Bank is located are required or authorized by law to close,
(b) a day on which the New York Stock Exchange is closed, or (c) a day on which the payment
system of the Federal Reserve System is not operational. For purposes of this definition, the
Bank's principal office shall be that office at which demands for payment are to be presented
under the Standby Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Local Government Commission of North Carolina, a division
of the Department of State Treasurer, and any successor or successors thereto.
"Derivative Agreement" means an interest rate swap, cap, collar, floor, forward, option,
put, call or other agreement, arrangement or security however denominated, entered into in order
to hedge interest rate fluctuations on all or a portion ofthe Bonds or to provide debt management
by changing payments to be made by the Issuer with respect to all or a portion of the Bonds.
"Event of Bankruptcy" means the commencement of a case by the Issuer under the u.S.
Bankruptcy Code or under any other domestic bankruptcy act or any similar act which hereafter
may be enacted (other than such proceeding initiated by the Issuer against third parties other than
the Issuer), unless such case shall have been dismissed and such dismissal shall be final and not
subject to appeal.
"Failed Tender Rate" means the lesser of (a) the sum of (i) the bond equivalent yield for
91 day United States Treasury bills sold at the last United States Treasury auction occurring prior
to such day, which yield shall be calculated by the Tender Agent in accordance with standard
practices in the banking industry on the basis of the discount rate at which such bills were sold
plus (ii) one percent and (b) 12% per annum.
"Favorable Opinion of Bond Counsel" means an opinion of Bond Counsel, addressed to
the Issuer, the Paying Agent, the Tender Agent, the Remarketing Agent and the Bank, to the
effect that the action proposed to be taken is authorized or permitted by the laws of the State, the
Resolution and this Resolution and will not adversely affect any exclusion from gross income for
federal income tax purposes, or any exemption from State income taxes, of interest on the Bonds.
2
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"Fitch" means Fitch Ratings, and if such corporation shall be dissolved or liquidated or
shall no longer perform the functions of a securities rating agency, "Fitch" shall be deemed to
refer to any other nationally recognized securities rating agency designated by the Issuer with the
approval of the Remarketing Agent.
"Interest Accrual Date" means (a) as to the Bonds that are not Bank Bonds, (i) with
respect to any Weekly Interest Rate Period, the first day thereof and, thereafter, the first Business
Day of each calendar month during that Weekly Interest Rate Period, (ii) with respect to any
Long- Term Interest Rate Period, the first day thereof and, thereafter, each Interest Payment Date
in respect thereof, other than the last such Interest Payment Date, and (iii) with respect to each
Bond Interest Term within a Short-Term Interest Rate Period, the first day thereof and, (b) as to
Bank Bonds, the date such Bank Bonds were purchased with moneys described in Section
403(b)(ii) hereof and thereafter in accordance with (a) above.
"Interest Payment Date" means (i) with respect to any Weekly Interest Rate Period, the
first Business Day of each calendar month, (ii) with respect to any Long-Term Interest Rate
Period, each February 1 and August 1, or, if any such February 1 or August 1 shall not be a
Business Day, the next succeeding Business Day, (iii) with respect to any Bond Interest Term,
the day next succeeding the last day thereof, (iv) with respect to each Interest Rate Period, the
day next succeeding the last day thereof and (v) with respect to Bank Bonds, the dates specified
in the Liquidity Facility.
"Interest Rate Period" means any Weekly Interest Rate Period, Short-Term Interest Rate
Period or Long-Term Interest Rate Period.
"Issuer" means the County of New Hanover, North Carolina and any successor or
successors thereto.
"Liquidity Facility" means the Standby Agreement and any Substitute Liquidity Facility.
"Liquidity Provider Account" means the account bearing such name which is created
pursuant to the Tender Agreement.
"Long- Term Interest Rate" means, with respect to each Bond, a non-variable interest rate
on such Bond established in accordance with Section 205( e) hereof.
"Long-Term Interest Rate Period" means each period during which a Long-Term Interest
Rate is in effect.
"Moody's" means Moody's Investors Service, Inc., a corporation organized and existing
under the laws of the State of Delaware, its successors and their assigns, and if such corporation
shall be dissolved or liquidated or shall no longer perform the functions of a securities rating
agency, "Moody's" shall be deemed to refer to any other nationally recognized securities rating
agency designated by the Issuer with the approval of the Remarketing Agent.
"Opinion of Counsel" means an opinion in writing signed by an attorney or firm of
attorneys acceptable to the Paying Agent and the Bank which may be counsel for the Issuer or
other counsel.
3
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174
"Owner" means a person in whose name a Bond is registered in the registration books
provided for in Section 210 hereof.
"Paying Agent" means the Paying Agent appointed pursuant to Section 210 hereof and at
the time serving as such under this Exhibit 2 whether the original or a successor Paying Agent.
"Principal Office" means, with respect to the Tender Agent, the Paying Agent or the
Remarketing Agent, the address for such party set forth in Section 60 I hereof, as it may be
changed from time to time pursuant to the provisions of Section 60 I hereof.
"Rating Agency" means Moody's and S&P.
"Record Date" means, with respect to an Interest Payment Date, (i) in respect of any
Weekly Interest Rate Period or any Bond Interest Term, the Business Day immediately
preceding such Interest Payment Date and (ii) in respect of any Long-Term Interest Rate Period,
the 15th day of the month immediately preceding such Interest Payment Date or, in the event that
an Interest Payment Date shall occur less than 15 days after the first day of a Long-Term Interest
Rate Period, such first day.
"Remarketing Account" means the account bearing such name which is created pursuant
to the Tender Agreement.
"Remarketing Agent" means the initial and any successor remarketing agent appointed in
accordance with Section 401(a) hereof.
"Remarketing Agreement" means the Remarketing and Interest Scrvices Agreement,
dated as of February 1,2006, between the Issuer and the Remarketing Agent, as the same may be
amended or supplemented from time to time, or any remarketing agreement entered into with a
successor Remarketing Agent.
"Resolution" means the resolution of the Board of Commissioners of the Issuer adopted
on January 9,2006 providing for the issuance of the Bonds.
"S&P" means Standard & Poor's Ratings Services, a division of The McGraw-Hill
Companies, Inc., its successors and their assigns, and if S&P shall be dissolved or liquidated or
shall no longer perform the functions of a securitics rating agency, "S&P" shall be deemed to
refer to any other nationally recognized securities rating agency designated by the Issuer with the
approval of the Remarketing Agent.
"Securities Depository" means The Depository Trust Company, Ncw York, New York or
other recognized securities depository selected by the Issuer, which maintains a book-entry
system in respect of the Bonds, and shall include any substitute for or successor to the securities
depository initially acting as Securities Depository.
"Securities Depository Nominee" means, as to any Securities Depository, such Securities
Depository or the nominee of such Securities Depository in whose name there shall be registered
on the registration books maintained by the Paying Agent the Bonds to be delivered to and
4
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175
immobilized at such Securities Depository, or its designee, during the continuation with such
Securities Depository of participation in its book-entry system.
"Short- Term Interest Rate Period" means each period, comprised of Bond Interest Terms,
during which Bond Interest Term Rates are in effect.
"Sinking Fund Requirement" means, with respect to the Bonds, the principal amount
fixed, or computed, as hereinafter provided, for the retirement of such Bonds by redemption on
February 1.
The Sinking Fund Requirements arc as follows:
Year Amount Year Amount
2007 $750,000 2017 $750,000
2008 750,000 2018 750,000
2009 750,000 2019 750,000
2010 750,000 2020 750,000
2011 750,000 2021 750,000
2012 750,000 2022 750,000
2013 750,000 2023 750,000
2014 750,000 2024 750,000
2015 750,000 2025 750,000
2016 750,000 2026* 750,000
*Final Maturity
The aggregate amount of such Sinking Fund Requirements, together with the amount due
upon the final maturity of the Bonds, shall be equal to the aggregate principal amount of the
Bonds. The Sinking Fund Requirements for the Bonds shall begin in the year determined as
provided above and shall end with the year immediately preceding the maturity of such Bonds
(such final installment being payable at maturity and not redeemed).
In the event Bonds are redeemed at the option of the Issuer pursuant to Section 301 (b)
hereot: the Bonds so redeemed may, at the option of the Issuer, be applied as a credit against any
subsequent Sinking Fund Requirement with respect to Bonds otherwise to be redeemed thereby,
such credit to be equal to the principal amount of such Bonds redeemed pursuant to Section
301 (b) hereof; provided that the Issuer shall have delivered to the Paying Agent not less than 45
days prior to the date of such mandatory sinking fund redemption the written direction of the
Issuer stating the Issuer's election to apply such Bonds as a credit. Unless the Paying Agcnt
receives the written direction of the Issuer electing to apply Bonds redeemed at the option of the
Issuer pursuant to Section 301(b) hereof as a credit against a particular Sinking Fund
Requirement, the Bonds so redeemed shall be applied to the Sinking Fund Requirements in
chronological order.
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"Standby Agreement" means the Standby Bond Purchase Agreement, dated as of
February 1, 2006, among the Issuer, the Bank and the Tender Agent/Paying Agent.
"State" means the State of North Carolina.
"Substitute Liquidity Facility" means a facility meeting the requirements set forth in
Section 207 hereof.
"Tender Agent" means the initial and any successor tender agent appointed in accordance
with Section 401 hereof.
"Tender Agreement" means the Tender Agent Agreement, dated as of February 1, 2006,
among the Issuer, the Tender Agent, the Paying Agent and the Remarketing Agent, as
supplemented or amended.
"Undelivered Bonds" means any Bonds so designated in accordance with the provisions
of Section 206(f)(i) or 206(g)(ii) hereof.
"Weekly Interest Rate" means a variable interest rate on the Bonds established in
accordance with Section 20S( d) hereof.
"Weekly Interest Rate Period" means each period during which a Weekly Interest Rate is
in effect for the Bonds.
Section 102 Rules of Construction. Words of the masculine gender shall bc deemed
and construed to include correlative words of the feminine and neuter genders. Unless the
context shall otherwise indicate, the words "Bond", "Owner" and "person" shall include the
plural as well as the singular number and the word "person" shall mean any individual,
corporation, partnership, joint venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
Section 103 Computation of Time. In this Exhibit 1, in the computation of a period of
time from a specified date to a later specified date, the word "from" means "from and including"
and the words "to" and "until" mean "to but excluding."
ARTICLE II.
DETAILS OF BONDS
Section 20 I Maturity of Bonds. The Bonds shall be stated to mature on February 1,
2026.
Section 202 Form of Bonds. The Bonds are issuable in fully-registered form in
Authorized Denominations, shall be numbered and shall be substantially in the form hereinafter
set forth, with such appropriate variations, omissions and insertions as may be necessary or
appropriate to conform to the provisions of this Exhibit 1. All Bonds may have endorsed thereon
such legends or text as may be necessary or appropriate to conform to any applicable rules and
regulations of any governmental authority or of any securities exchange on which the Bonds may
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be listed or any usage or requirement of law with respect thereto. If at any time an Owner of
Bonds shall not be a Securities Depository or Securities Depository Nominee, the Issuer agrees
that it will deliver printed bond certificates for such Bonds to the Paying Agent to be used for
exchanges and transfers of Bonds in accordance with Sections 209, 210 and 214 hereof.
[Form of Bonds]
No. R- $
United States of America
State of North Carolina
COUNTY OF NEW HANOVER, NORTH CAROLINA
VARIABLE RATE GENERAL OBLIGA nON BOND, SERIES 2006
ORIGINAL ISSUANCE DATE MATURITY DATE CUSIP
February I, 2006 February I, 2026
For Long-Term Interest Rate Period Only
Interest Rate for Mandatory Tender Date for
Long- Term Interest Long- Term Interest Rate
Type of Interest Rate Period: Rate Period Only: Period:
For Short-Term Interest Rate Period Only
First Day of First Day of Interest Due Number of
Bond Interest Next Bond on Next Days in
Term and Interest Term Interest Bond
Interest Accrual and Interest Payment Interest
Interest Rate: Date: Payment Date: Date: Term:
REGISTERED OWNER: CEDE & CO.
PRINCIP AL AMOUNT:
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The County of New Hanover, North Carolina (the "Issuer"), a county of the State of
NOlth Carolina, is justly indebted and for value received hereby promises to pay, in the manner
hereinafter provided, to the registered owner set forth above or registered assigns or legal
representative on the Maturity Date set forth above (or earlier as hereinafter refen.ed to), upon
the presentation and surrender hereof, at the corporate trust office of First-Citizens Bank & Trust
Company, as paying agent (the "Paying Agent") in Raleigh, North Carolina, the principal
amount set forth above. Such payment of principal and the payment of any premium on this
Bond shall be by check; provided, however, that principal and any premium shall be paid by wire
transfer (in the continental United States) of immediately available funds to any owner of at least
$1,000,000 in aggregate principal amount of Bonds outstanding, at such owner's option, in each
case according to wire instructions given to the Paying Agent in writing for such purpose in
accordance with the procedures prescribed by the Paying Agent. The Issuer also promises to pay
interest on such principal amount from the Interest Payment Date (as hereunder defined) next
preceding the date on which this Bond is authenticated to which interest shall have been paid
unless it is authenticated on an Interest Payment Date, in which event it shall bear interest from
such Interest Payment Date, or unless it is authenticated prior to the first Interest Payment Date,
in which event it shall bear interest from the original Issuance Date set forth above, payable on
March I, 2006, and on each Interest Payment Date thereafter until such principal amount is paid,
at the rates per annum determined as described herein or, if this Bond shall be a Bank Bond (as
defined in Exhibit ] to the Resolution hereinafter mentioned), at the greater of (i) the rates per
annum determined as provided herein and (ii) the rate per annum applicable to Bank Bonds
determined pursuant to the Liquidity Facility hereinafter mentioned at the times provided in the
Liquidity Facility. The interest so payable or duly provided for on any Interest Payment Date
will be paid to the person in whose name this Bond is registered at the close of business on the
Record Date (as hereinafter defined) for such interest, which shall be, in the case of a Long-Term
Interest Rate Period (as hereinafter defined) for any Bonds (as hereinafter defined), the 15th day
immediately preceding such Interest Payment Date, or, in the event that an Interest Payment Date
shall occur less than 15 days after the first day of a Long-Term Interest Rate Period, such first
day and, in the case of any other Interest Rate Period (as hereinafter defined), the Business Day
(as hereinafter defined) immediately preceding such Interest Payment Date. All such payments
shall be made in such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. Interest on this Bond is payable by (i)
check mailed on the date on which due to the registered owner hereof at the address of such
registered owner shown on the registration books kept by the Paying Agent, as of the close of
business on the Record Date in respect of such interest, or (ii) in the case of (A) Bonds bearing
interest at Bond Interest Term Rates or (B) Bonds bearing interest other than at a Bond Interest
Term Rate owned by a person who is the registered owner of Bonds in an aggregate principal
amount of at least $1,000,000 and who, prior to the Record Date next preceding any Interest
Payment Date, shall have provided the Paying Agent with wire transfer instructions, by wire
transfer (in the continental United States) of immediately available funds; provided, however,
that while the Bonds bear interest at Bond Interest Term Rates, interest payable hereon is payable
only upon presentation hereof to First-Citizens Bank & Trust Company, as tender agent (the
'Tender Agent"), at its Principal Office (as defined in Exhibit 1 to the Resolution) for the
delivery of Bonds (hereinafter defined). For the prompt payment hereof, as to both principal and
interest as the same shall become due, the faith and credit of the Issuer are hereby irrevocably
pledged.
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[Printed Bonds shall contain the following statement: REFERENCE IS HEREBY
MADE TO THE FURTHER PROVISIONS OF THIS BOND ON THE REVERSE HEREOF
WHICH SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY
SET FORTH HEREIN.]
[Bonds issued pursuant to a book-entry system shall contain the following paragraph: The
Bonds are being issued by means of a book-entry system with no physical distribution of bonds
certificates to be made except as provided in Exhibit I to the Resolution. One Bond with respect
to each date on which the Bonds are stated to mature, registered in the name of the Securities
Depository Nominee (as defined in Exhibit 1 to the Resolution), is being issued and required to
be deposited with the Securities Depository (as defined in Exhibit I to the Resolution) and
immobilized in its custody. The book-entry system will evidence positions held in the Bonds by
the Securities Depository's participants, beneficial ownership of the Bonds in Authorized
Denominations thereof being evidenced in the records of such participants. Transfers of
ownership shall be effected on the records of the Securities Depository and its participants
pursuant to rules and procedures established by the Securities Depository and its participants.
The Issuer, the Paying Agent and the Tender Agent will recognize the Securities Depository
Nominee, while the registered Owner of this Bond, as the owner of this Bond for all purposes.
Transfer of principal and interest payments to participants of the Securities Depository will be
the responsibility of the Securities Depository, and transfer of principal and interest payments to
beneficial owners of the Bonds by participants of the Securities Depository will be the
responsibility of such participants and other nominees of such beneficial owners. Thc Issuer will
not be responsible or liable for such transfers of payments or for maintaining, supervising or
reviewing the records maintained by the Securities Depository, the Securities Depository
Nominee, its participants or persons acting through such participants.]
This Bond is one of an issue of bonds designated "Variable Rate General Obligation
School Bonds, Series 2006" (the "Bonds") and issued by the Issuer for the purpose of providing
funds, with any other available funds, for providing celtain governmental facilities for the Issuer
and effectuating certain public purposes of the Issuer, and this Bond is issued under and pursuant
to The Local Government Bond Act, as amended, Article 7, as amended, of Chapter 159 of the
General Statutes of North Carolina, a bond order duly adopted by the Board of Commissioners
for the Issuer on March 14, 2005, which was approved by the vote of a majority of the qualified
voters of the Issuer who voted thereon at a special referendum duly called and held on May 10,
2005 and a resolution duly passed by said Board of Commissioners on January 9, 2006 (the
"Resolution"), many of the terms of which are included in Exhibit I thereto ("Exhibit I to the
Resolution"). The Bonds will mature, subject to prior redemption, on February I, 2026.
The Issuer shall cause a Liquidity Facility to be in effect during any Weekly Interest Rate
Period, any Short-Term Interest Rate Period and on the first day of any Long-Term Interest Rate
Period; provided, however, if the Bonds are being adjusted from one Long-Term Interest Rate
Period to another Long-Term Interest Rate Period, such requirement for a Liquidity Facility shall
not apply and no Liquidity Facility need be in effect for the mandatory tender for purchase that
will occur on the first day of the Long-Term Interest Rate Period. Subject to certain conditions,
the Liquidity Facility may be replaced by a Substitute Liquidity Facility and, in such event,
references in this Bond to the Liquidity Facility or the Bank shall refer to such Substitute
Liquidity Facility or to the provider of such Substitute Liquidity Facility. Under the Liquidity
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Facility, the Bank has agreed, subject to the terms and conditions contained therein, to make
funds available in an amount sufficient to pay (i) the portion of the purchase price corresponding
to the principal of the Bonds and (ii) while the Bonds bear interest at a Weekly Interest Rate, the
portion of the purchase price of the Bonds corresponding to accrued interest thereon for a period
not to exceed 35 days at the maximum rate of 12% per annum and, prior to any adjustment of the
Bonds to Bond Interest Term Rates, the Issuer shall either cause the Liquidity Facility to be
amended or shall obtain a Substitute Liquidity Facility which shall provide for an amount as
shall be determined to be necessary to pay such interest portion of the purchase price in order to
obtain certain ratings on the Bonds satisfied in Exhibit 1 to the Resolution. Upon the occurrence
of an Authorized Liquidity Termination (as defined in Exhibit 1 to the Resolution), the
obligation of the Bank to furnish money for the purchase of Bonds will terminate immediately,
without notice to the registered owners.
The term of the Bonds will be divided into consecutive interest rate periods (each, an
"Interest Rate Period" during each of which the Bonds shall bear interest at Weekly Interest
Rates (a "Weekly Interest Rate Period"), a Long-Term Interest Rate (a "Long-Term Interest Rate
Period"), or Bond Interest Term Rates for one or more consecutive Bond Interest Terms (a
"Short-Term Interest Rate Period"); provided, however, that no Bond (except Bank Bondstmay
bear interest at a rate in excess of 12% per annum. The initial Interest Rate Period shall be a
Weekly Interest Rate Period. The interest rate on the Bonds may be adjusted from time to time
to Bond Interest Term Rates or a Long-Term Interest Rate and thereafter again adjusted as
described in Exhibit 1 to the Resolution. As hereinafter described, the Bonds are subject to
mandatory purchase on the first day of any Interest Rate Period.
During any Weekly Interest Rate Period, interest on the Bonds shall be payable on each
Interest Payment Date for the period commencing on the immediately preceding Interest Accrual
Date (as hereinafter defined) and ending on the day immediately preceding the Interest Payment
Date (or, if sooner, the last day of the Weekly Interest Rate Period). During any Short-Term
Interest Rate Period or Long-Term Interest Rate Period, interest on this Bond shall be payable on
each Interest Payment Date for the period commencing on the immediately preceding Interest
Accrual Date and ending on the day immediately preceding such Interest Payment Date. In any
event, interest on this Bond shall be payable for the final Interest Rate Period to the date on
which this Bond shall have been paid in full. Interest shall be computed, in the case of a
Long-Term Interest Rate Period, on the basis of a 360-day year consisting of twelvc 30-day
months, and in the case of any other Interest Rate Period, on the basis of a 365 or 366-day year,
as the case may be, for the actual number of days elapsed. The Bonds may be issued in the form
of fully registered Bonds in the denominations of (i) with respect to any Long-Term Interest Rate
Period, $5,000 and any integral multiple thereof and (ii) $100,000 and any integral multiple of
$5,000 in excess of $100,000 during any Weekly Interest Rate Period or Short-Term Interest
Rate Period (the "Authorized Denominations").
The term "Interest Accrual Date" means (i) with respect to any Weekly Interest Rate
Period, the first day thereof and, thereafter, the first Business Day of each month during that
Weekly Interest Rate Period, (ii) with respect to any Long-Term Interest Rate Period, the first
day thereof and, thereafter, each Interest Payment Date in respect thereof: other than the last such
Interest Payment Date, (iii) with respect to each Bond Interest Term within a Short-Term Interest
Rate Period, the first day thereof, and (iv) as to Bank Bonds, the date such Bank Bonds were
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purchased with moneys provided under the Liquidity Facility and thereafter in accordance with
(i) or (iii) above, as applicable. The term "Interest Payment Date" means (i) with respect to any
Weekly Interest Rate Period, the first Business Day of each calendar month, (ii) with respect to
any Long-Term Interest Rate Period, each August 1 and February 1, (iii) with respect to any
Bond Interest Term, the day next succeeding the last day thereof, and (iv) with respect to each
Interest Rate Period, the day next succeeding the last day thereof The term "Business Day"
means any day other than (a) a day on which banks located in New York, New York or the cities
in which the principal office of any of the Paying Agent, the Tender Agent, the Remarketing
Agent or the Bank is located are required or authorized by law to close, (b) a day on which the
New York Stock Exchange is closed, or (c) a day on which the payment system of the Federal
Reserve System is not operational. For purposes of this definition, the Bank's principal office
shall be that office at which demands for payment are to be presented under the Liquidity
Facility.
The interest rate on the Bonds shall be determined as follows:
(1) Weekly Interest Rate. During each Weekly Interest Rate Period, this
Bond shall bear interest at a Weekly Interest Rate, which shall be determined by the
Remarketing Agent on Wednesday of each week during such Weekly Interest Rate
Period, or if such day shall not be a Business Day, then the next succeeding Business
Day. The first Weekly Interest Rate determined for each Weekly Interest Rate Period
shall be determined on or prior to the first day of such Weekly Interest Rate Period and
shall apply to the period commencing on the first day of such Weekly Interest Rate
Period and ending on the next succeeding Wednesday. Thereafter, cach Weekly Interest
Rate shall apply to the period commencing on Thursday and ending on the next
succeeding Wednesday, unless such Weekly Interest Rate Period shall end on a day other
than a Wednesday, in which event the last Weekly Interest Rate for such Weekly Interest
Rate Period shall apply to the period commencing on Thursday preceding the last day of
such Weekly Interest Rate Period and ending on the last day of such Weekly Interest Rate
Period. The Weekly Interest Rate shall be the rate of intercst per annum determined by
the Remarketing Agent (based on the examination of tax-exempt obligations comparable
to the Bonds and known by the Remarketing Agent to have been priced or traded under
then prevailing market conditions) to be the minimum interest rate which, if borne by the
Bonds, would enable the Remarketing Agent to sell the Bonds on such Business Day at a
price (without regard to accrued interest) equal to the principal amount thereof. In the
event that the Remarketing Agent fails to establish a Weekly Interest Rate for any week,
then the Weekly Interest Rate for such week shall be the same as the Weekly Interest
Rate for the immediately preceding week if the Weekly Interest Rate for such preceding
week was determined by the Remarketing Agent. In the event that the Weekly Interest
Rate for the immediately preceding week was not determined by the Rcmarketing Agent,
or in the event that the Weekly Interest Rate determined by the Remarketing Agent shall
be held to be invalid or unenforceable by a court of law, then the interest rate for such
week shall be equal to 70% of the interest rate on 30-day high grade unsecured
commercial paper notes sold through dealers by major corporations as reported in The
Wall Street Journal on the day the Weekly Interest Rate would otherwise be determined
as provided in Exhibit 1 to the Resolution for such Weekly Interest Rate Period.
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182
(2) Long-Term Interest Rate. During each Long-Term Interest Rate Period,
this Bond shall bear interest at a Long-Term Interest Rate. The Long-Term Interest Rate
for the Bonds shall be determined by the Remarketing Agent on a Business Day no later
than the effective date of such Long-Term Interest Rate Period with respect to the Bonds.
The Long-Term Interest Rate shall be the rate of interest per annum determined by the
Remarketing Agent (based on the examination of tax-exempt obligations comparable to
the Bonds and known by the Remarketing Agent to have been priced or traded under
then-prevailing market conditions) to be the minimum interest rate which, if borne by the
Bonds, would enable the Remarketing Agent to sell the Bonds on such date of
determination at a price equal to the principal amount thereof, plus accrued interest, if
any, plus a premium if certain conditions are satisfied so long as the Issuer delivers a
Favorable Opinion of Bond Counsel to the effect that pricing the Bonds to obtain a
premium will not adversely affect the exclusion of interest on any of the Bonds from
gross income for federal income tax purposes. If for any reason a Long-Term Interest
Rate is not so determined for any Long-Term Interest Rate Period by the Remarketing
Agent on or prior to the first day of such Long-Term Interest Rate Period and a Liquidity
Facility is in effect on such date, then the Bonds shall bear interest at a Weekly Interest
Rate as described above and shall continue to bear interest at a Weekly Interest Rate
determined in accordance with the provisions described herein until such time as the
interest rate on the Bonds shall have been adjusted to Bond Interest Term Rates or a
Long- Term Interest Rate as provided herein, and during such Weekly Interest Rate
Period the Bonds shall be subject to purchase upon notice from the owners thereof as
described below. If for any reason, a Long-Term Interest Rate is not so dctermined for
any Long-Term Interest Rate Period and no Liquidity Facility shall then be in effect, then
the Bonds shall be subject to mandatory tender for purchase.
(3) Bond Interest Terms and Bond Interest Term Rates. During each
Short- Term Interest Rate Period, this Bond shall bear interest during each Bond Interest
Term for this Bond at the Bond Interest Term Rate for this Bond. The Bond Interest
Term and Bond Interest Term Rate for this Bond shall be determined by the Remarketing
Agent no later than the first day of each Bond Interest Term. The Bond Interest Term
and the Bond Interest Term Rate need not be the same for any two Bonds, even if
determined on the same date. The Bond Interest Term for each Bond shall be a period of
not more than 180 days determined by the Remarketing Agent to be the period which,
together with all other Bond Interest Terms for all Bonds then outstanding, will result in
the lowest overall interest expense on the Bonds over the next succeeding 180 days,
taking into account certain factors set forth in Exhibit I to the Resolution. Any Bond
purchased on behalf of the Issuer and remaining unsold by the Remarketing Agent as of
the close of business on the first day of the Bond Interest Term for that Bond shall have a
Bond Interest Term of one day or, if that Bond Interest Term does not end on a day
immediately preceding a Business Day, a Bond Interest Term ending on the day
immediately preceding the next Business Day. If for any reason a Bond Interest Term for
any Bond cannot be so determined by the Remarketing Agent, or if the determination of
such Bond Interest Term is held by a court of law to be invalid or unenforceable, then
such Bond Interest Term shall be 30 days, or if the last day so determined shall not be a
day immediately preceding a Business Day, shall end on the first day immediately
preceding the Business Day next succeeding such last day, or if such last day would be
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183
after the day immediately preceding the Maturity Date, shall end on the day immediately
preceding the Maturity Date. The Bond Interest Term Rate for each Bond Interest Term
for this Bond shall be the rate of interest per annum, determined by the Remarketing
Agent (based on the examination of tax-exempt obligations comparable to the Bonds and
known by the Remarketing Agent to have been priced or traded under then prevailing
market conditions) to be the minimum interest rate which, if borne by this Bond for such
Bond Interest Term, would enable the Remarketing Agent to sell this Bond on the date
and at the time of such determination at a price (without regard to accrued interest) equal
to the principal amount thereof. If for any reason a Bond Interest Term Rate for any
Bond is not so established by the Remarketing Agent for any Bond Interest Term, or such
Bond Interest Term Rate is determined by a court of law to be invalid or unenforceable,
then the Bond Interest Term Rate for such Bond Interest Term shall be the rate per annum
equal to 70% of the interest rate on high grade unsecured commercial paper notes sold
through dealers by major corporations as reported by The Wall Street Journal on the first
day of such Bond Interest Term and which maturity most nearly equals the Bond Interest
Term for which a Bond Interest Term Rate is being calculated.
Waehovia Bank, National Association has been appointed as the initial Remarketing
Agent for the Bonds. First-Citizens Bank & Trust Company has been appointed as the initial
Tender Agent for the Bonds, whose Principal Office for the delivery of Bonds at the date of
issuance of the Bonds is located at First-Citizens Bank & Trust Company, Attention: Corporate
Trust Department, 100 East Tryon Road - DAC 61, Raleigh, North Carolina 27603.
The Paying Agent shall give notice by first class mail of an adjustment in the Interest
Rate Period not less than 12 days (15 days if the then current Interest Rate Period is a Long-Term
Interest Rate Period) prior to the effective date of the new Interest Rate Period, or, in the case of
an adjustment to a Long-Term Interest Rate Period, not less than 25 days prior to the effective
date of such Long-Term Interest Rate Period. In the event of an adjustment in the Interest Rate
Period applicable to the Bonds, the Bonds shall be subject to mandatory tender for purchase as
hereinafter described.
In connection with any adjustment of the Interest Rate Period on the Bonds, the Issuer is
obligated to satisfy certain conditions precedent as described in Exhibit 1 to the Resolution.
Purchase of Bonds During Weekly Interest Rate Period. During any Weekly Interest
Rate Period and if a Liquidity Facility is in effect, this Bond shall be purchased in whole (or in
part if both the amount to be purchased and the amount remaining unpurchased shall consist of
Authorized Denominations) at the option of the registered owner on any Business Day at a
purchase price equal to the principal amount hereof plus accrued interest, if any, from the
Interest Accrual Date immediately preceding the date of purchase through the day immediately
preceding the date of purchase, unless the date of purchase shall be an Interest Accrual Date, in
which case at a purchase price equal to the principal amount thereof, payable in immediately
available funds, upon delivery to the Tender Agent at its Principal Office for delivery of notices
and to the Remarketing Agent of an irrevocable written notice which states the principal amount
of this Bond and the date on which the same shall be purchased, which date shall be a Business
Day at least seven days after the date of delivery of such notice to the Tender Agent. Any notice
delivered to the Tender Agent and the Remarketing Agent after II :00 a.m., New York City time,
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shall be deemed to have been received on the next succeeding Business Day. In the event a
registered owner shall deliver a notice to the Tender Agent of such registered owner's election to
have this Bond purchased as herein described, and such registered owner shall not deliver this
Bond to the Tender Agent on the date of such purchase, then this Bond shall nevertheless be
deemed to have been purchased on such date and shall no longer be deemed to be outstanding
under Exhibit 1 to the Resolution and interest shall no longer accrue with respect thereto, and the
registered owner of such Bond shall have no right other than to receive payment of the purchase
price therefor. Moneys held by the Tender Agent for such registered owner shall not be invested.
Mandatory Tender for Purchase on Day Next Succeeding the Last Day of Each Bond
Interest Term. On the day next succeeding the last day of each Bond Interest Term for this
Bond, this Bond shall be purchased from its registered owner at a purchase price equal to the
principal amount hereot~ payable in immediately available funds.
Mandatory Tender for Purchase on First Day of Each Interest Ratc Period. This Bond
shall be subject to mandatory tender for purchase on the tirst day of each Interest Rate Period, or
on the day which would have been the first day of an Interest Rate Period in the event that one of
the conditions precedent to the adjustment to a new Interest Rate Period shall not be met as
described in Exhibit 1 to the Resolution, at a purchase price, payable in immediately available
funds, equal to the principal amount hereof, or in the case of a purchase on the first day of an
Interest Rate Period which shall be preceded by a Long-Term Interest Rate Period and which
shall commence prior to the day originally established as the last day of such preceding
Long- Term Interest Rate Period, at a purchase price equal to the optional redemption price then
applicable to this Bond on such purchase date.
Mandatory Tender for Purchase Upon Cancellation. Tcrmination or Expiration of
Liquidity Facility. So long as the Bonds shall not have been adjusted to a Long-Term Interest
Rate, if at any time the Paying Agent shall give notice that the Bonds shall, on the date specified
in such notice, cease to be subject to purchase pursuant to the Liquidity Facility (other than
because of an Authorized Liquidity Termination), the Bonds shall be subject to mandatory tcndcr
for purchase at a purchase price equal to thc principal amount thereof, plus accrued intcrest, if
any, to the datc of purchase (i) on the fifth Business Day preceding the date on which a Liquidity
Facility then in effect is statcd to expire, terminate or be cancelled (unless extended) other than a
termination on account of any Authorized Liquidity Termination and (ii) if the Liquidity Facility
then in effect will terminate or be cancelled prior to its stated expiration date on account of
delivery of a Substitute Liquidity Facility, on the proposed effective date of the Substitute
Liquidity Facility. Notwithstanding anything in this paragraph to the contrary, in the event that
in connection with any such termination, cancellation or expiration of an existing Liquidity
Facility and substitution thcrefor with a Substitute Liquidity Facility, the Issuer delivers to the
Tender Agent, the Paying Agent and the Remarketing Agent prior to the date that notice of such
termination, cancellation or expiration and substitution is required to be given by the Tender
Agent as provided in Exhibit 1 to the Resolution, written evidence from each rating agency then
rating the Bonds to the effect that such termination, cancellation or expiration and substitution in
and of itself will not result in the withdrawal or reduction of any rating then applicable to the
Bonds, then the Bonds will not bc subject to mandatory tcndcr for purchase as provided in this
paragraph solely as a result of such cancellation or expiration and substitution.
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Mandatory Tender for Purchase at Option of the Issuer. At the option of the Issuer,
during any Weekly Rate Period, the Bonds shall be subject to mandatory tender for purchase on
any Interest Payment Date at a purchase price, payable in immediately available funds, equal to
the principal amount of the Bonds, plus accrued interest, if any.
For payment of the purchase price of any Bond required to be purchased as described
above on the date specified, such Bond must bc delivered, at or prior to 10:00 a.m., New York
City time, on the date specified in applicable notice, to the Tender Agent at its Principal Office
for delivery of Bonds, accompanied by an instrument of transfer thereof, in form satisfactory to
the Tender Agent, executed in blank by the registered owner thereof or his duly authorized
attorney, with such signature guaranteed by a commercial bank, trust company or member firm
of the New York Stock Exchange. In the event any such Bond is delivered after 10:00 a.m. on
such date, payment of the purchase price of such Bond need not be made until the Business Day
following the date of delivery of such Bond, but such Bond shall nonetheless be deemed to have
been purchased on the date specified in such notice and no interest shall accrue thereon after
such date.
The Tender Agcnt may refuse to accept delivery of any Bond for which a proper
instrument of transfer has not been provided. In the event that any registered owner of a Bond
who shall have given notice of such owner's election to have his Bond purchased during a
Weekly Interest Rate Period hereof, or who shall have been mailed the notice of a mandatory
tender for purchase of his Bond in connection with the end of a Bond Interest Term, a
cancellation, termination, expiration or substitution of the Liquidity Facility or the
commencement of a new Interest Rate Period, shall fail to deliver such Bond to the Tender
Agent at the place and on the applicable date and time specified, or shall fail to deliver such
Bond properly endorsed, such Bond shall constitute an Undelivered Bond. If funds in the
amount of the purchase price of any Undelivered Bond are available for payment to the
registered owner thereof on the date and at the time specified, then from and after the date and
time of that required delivery, (A) such Undelivered Bond shall be deemed to be purchased and
shall no longer be deemed to be outstanding; (B) interest shall no longer accrue thereon; and (C)
funds in the amount of the purchase price of the Undelivered Bond shall be held by the Tender
Agent for the benefit of the registered owner thereof (provided that the registered owner shall
have no right to any investment proceeds derived from such funds), to be paid upon delivery (or
proper endorsement) of the Undelivered Bond to the Tender Agent at its Principal Office for
delivery of Bonds. Any funds held by the Tender Agent for the purchase of Undelivered Bonds
shall be held uninvested.
On any Interest Payment Date during a Weekly Interest Rate Period, thc Bonds shall be
subject to optional redemption by the Issuer, in whole or in part, at a redemption price equal to
100% of the principal amount thereof to be redeemed plus accrued interest, if any, to the
redemption date.
On the day succeeding the last day of any Bond Interest Term with respect to any Bond,
such Bond shall be subject to optional redemption by the Issuer, in whole or in part, at a
redemption price equal to 100% of the principal amount thereofto be redeemed.
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The Bonds are subject to mandatory redemption in part without premium on each
February 1 in the following amount of the Sinking Fund Requirements per year at a redemption
price equal to 100% of the principal amount of the Bonds to be redeemed plus accrued interest
thereon to the date fixed for redemption:
Year Amount Year Amount
2007 $750,000 2017 $750,000
2008 750,000 2018 750,000
2009 750,000 2019 750,000
2010 750,000 2020 750,000
2011 750,000 2021 750,000
2012 750,000 2022 750,000
2013 750,000 2023 750,000
2014 750,000 2024 750,000
2015 750.000 2025 750,000
2016 750,000 2026* 750,000
*Final Maturity
During any Long-Term Interest Rate Period, the Bonds shall be subject to optional
redemption by the Issuer on the first day thereof, in whole or in part, at a redemption price of par,
and thereafter, during the periods specified below or, if approved by Bond Counsel (as defined in
Exhibit 1 to the Resolution) as provided in Section 205(e)(ii) of Exhibit 1 to the Resolution,
during the periods specified in the notice of the Issuer to the Paying Agent pursuant to Section
205(e)(ii)(A) of Exhibit 1 to the Resolution, in whole or in part at any time, at the redemption
prices (expressed as a percentage of the principal amount of Bonds to be redeemed) hereinafter
indicated or specified in the notice of the Issuer to the Tender Agent pursuant to Section
205( e )(ii)(A) of Exhibit 1 to the Resolution, plus accrued interest, if any, to the redemption date:
Length of Long- Term Interest Rate Period
(expressed in years) Redemption Price
Greater than 15 after 10 years at 100%
Less than or equal to 15 after 7 years at 1 00%
And greater than 1 0
Less than or equal to 1 0 after 5 years at 1 00%
And greater than 7
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Length of Long- Term Interest Rate Period
(expressed in years) Redemption Price
Less than or equal to 7 and after 3 years at 100%
Greater than 4
Less than or equal to 4 after 2 years at 100%
Bank Bonds are subject to mandatory redemption prior to maturity in whole or in pmt on
any date specified in the Liquidity Facility in any manner directed by the Liquidity Facility for
such Bank Bonds at a redemption price equal to 100% of the principal amount of the Bank
Bonds to be redeemed plus accrued interest thereon to the date fixed for redemption.
In the event any of the Bonds or portions thereof are called for redemption as aforesaid,
notice of the call for redemption, identifying the Bonds or portions thereof to be redeemed, shall
be given by the Issuer by mailing a copy of the redemption notice by first class, registered or
certified mail at least 30 days but not more than 45 days prior to the date fixed for redemption to
the registered owner of each Bond to be redeemed in whole or in pmt at the address shown on
the registration books.
If payment of the purchase price of any Bond shall not be made to any registered owner
within five Business Days after a purchase date following an Authorized Liquidity Termination
(unless a Substitute Liquidity Facility is then in effect), the principal of all outstanding Bonds
shall become and be immediately due and payable on the next succeeding Business Day. In such
case, the Bonds shall bear interest at the lesser of (a) the sum of (i) the bond equivalent yield for
91 day United States Treasury bills sold at the last United States Treasury auction occurring prior
to such day, which yield shall be calculated by the Tender Agent in accordance with standard
practices in the banking industry on the basis of the discount rate at which such bills were sold
plus (ii) one percent and (b) 12% per annum, in either case beginning after such five Business
Days until such principal is paid.
If payment of the purchase price of any Bond shall not be made to any registered owner
within 75 days after a purchase date (unless a Substitute Liquidity Facility is then in effect), the
principal of all outstanding Bonds shall become and be immediately due and payable on the next
succeeding Business Day. In such case, the Bonds shall bear interest at the lesser of (a) the sum
of (i) the bond equivalent yield for 91 day United States Treasury bills sold at the last United
States Treasury auction occurring prior to such day, which yield shall be calculated by the
Tender Agent in accordance with standard practices in the banking industry on the hasis of the
discount rate at which such bills were sold plus (ii) one percent and (b) 12% per annum, in either
case beginning on such Business Day until such principal is paid.
With respect to the two preceding paragraphs, for the period beginning on the purchase
date on which the purchase price is not paid to a registered owner and ending on the day before
the Bonds become immediately due and payable (or, the effectiveness of a Substitute Liquidity
Facility which prevents such acceleration from occurring), the Bonds shall bear interest at a rate
per annum equal to 70% of the interest rate 011 high grade unsecured commercial paper notes
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sold through dealers by major corporations as reported in The Wall Street Journal on such
purchase date.
The Bonds are issuable in fully-registered form and in Authorized Denominations.
Bonds may be exchanged at the Principal Office of the Paying Agent, in the manner and subject
to the limitations and conditions provided in Exhibit I to the Resolution, for an equal aggregate
principal amount of Bonds of the same maturity and of any Authorized Denominations.
The transfer of this Bond is registrable by the registered O\'VTIer hereof in person or by his
attorney or legal representative at the Principal Office of the Paying Agent, but only in the
manner and subject to the limitations and conditions provided in Exhibit I to the Resolution and
upon surrender and cancellation of this Bond. Upon any such registration of transfer, the Issuer
shall cause to be executed and the Paying Agent shall authenticate and deliver in exchange for
this Bond a new Bond or Bonds, registered in the name of the transferee, of any Authorized
Denominations, in an aggregate principal amount equal to the principal amount of this Bond and
of the same maturity.
Exhibit I to the Resolution may be amended or supplemented only to the extent and in
the circumstances permitted thereby.
It is hereby certified and recited that all acts, conditions and things required by the
Constitution and laws of North Carolina to happen, exist and be performed precedent to and in
the issuance of this Bond have happened, exist and have been performed in regular and due form
and time as so required; that provision has been made for the levy and collection of a direct
annual tax upon all taxable property within the Issuer sufficient to pay the principal of and the
interest on this Bond as the same shall become due; and that the total indebtedness of the Issuer,
including this Bond, does not exceed any constitutional or statutory limitation thereon.
This Bond shall not be valid or become obligatory for any purpose or be entitled to any
benefit or security under the Resolution until this Bond shall have been authenticated by the
execution by the Paying Agent ofthe certificate of authentication endorsed hereon.
IN WITNESS WHEREOF, the Issuer has caused this Bond to be manually signed by its
[Vice] Chainnan and Clerk to the Board and its corporate seal to be impressed hereon, all as of
the Original Issuance Date set forth above.
[Vice] Chairman of the Board of Commissioners
[SEAL]
Clerk to the Board of Commissioners
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189
CERTIFICATE OF LOCAL GOVERNMENT COMMISSION
The issuance of the within Bond has been approved under the provisions of The Local
Government Bond Act of North Carolina.
Acting Secretary, Local Government Commission
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CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the series designated herein and issued under the
provisions of the within-mentioned Resolution.
First-Citizens Bank & Trust Company,
as Paying Agent
By:
Authorized Signatory
Date of authentication:
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
[please print or typewrite name and address of assignee] the within Bond and all rights and title
thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the within Bond on the books kept for registration thereof, with full power of
substitution in the premises.
Date:
NOTICE: Signature must correspond with the name of the registered owner as it appears on the
face of the within Bond in every particular, without alteration or enlargement or any change
whatever.
Signature Guaranteed:
NOTICE: Signature(s) must be guaranteed by an institution which is a participant in the
Securities Transfer Agent Medallion Program (STAMP) or similar program.
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Section 203 Details of Bonds. The Bonds shall be dated the date of thc original
issuance thereof and shall bear interest at a rate or rates determined pursuant to Section 205
hereof and not exceeding 12% per annum or, in the case of Bonds that are Bank Bonds, at the
greater of (i) the rate or rates determined pursuant to Section 205 hereof and (ii) the rate per
annum determined pursuant to the Liquidity Facility (the Bank Bond Interest Rate), which
interest shall be payable on March 1, 2006 and on each Interest Payment Date thereafter until
payment of their principal sum, except that interest on Bank Bonds shall be paid as provided in
the Liquidity Facility.
Each Bond shall bear interest from the Interest Payment Date next preceding the date on
which it is authenticated unless it is (a) authenticated upon an Interest Payment Date in which
event it shall bear interest from such Interest Payment Date or (b) authenticated prior to the first
Interest Payment Date in which event it shall bear interest from its date; provided, however, that
if at the time of authentication of any Bond interest is in default, such Bond shall bear interest
from the date to which interest has been paid or, if no interest has been paid, from its date.
Interest on the Bonds shall be computed as described in Section 205(b) hereof.
The principal of and the interest and any redemption premium on the Bonds shall be
payable in any coin or currency of the United States of America which is legal tender for the
payment of public and private debts on the respective dates of payment thereof.
The principal of and any redemption premium on each such Bond shall be payable to the
person appearing on the registration books of the Issuer hereinafter provided for as the Owner of
such Bond or his registered assigns or legal representative at such office of the Paying Agent or
such other place as the Issuer may determine upon the presentation and surrender thereof as the
same shall become due and payable. Such payment of principal and any redemption premium
shall be by check; provided, however, that principal of and any redemption premium on Bonds
shall be paid by wire transfer (in the continental United States) of immediately available funds to
any Owner of at least $1,000,000 in aggregate principal amount of the Bonds outstanding, at its
option, in each case according to wire instructions given to the Paying Agent in \\<Titing for such
purpose in accordance with the procedures prescribed by the Paying Agent. Payment of interest
on Bonds shall be made in the manner specified in Section 205(h) hereof.
Subject to the foregoing provisions of this Section, cach Bond delivered under this
Exhibit 1 upon registration of transfer of or in exchange for or in lieu of any other Bond shall
carryall the rights to interest accrued and unpaid, and to accrue, which were carried by such
othcr Bond and each such Bond shall bear interest from such date, so that neither gain nor loss in
interest shall result from such registration, transfer, exchange or substitution.
The Bonds will be issued by means of a book-entry system with no physical distribution
of bond certificates to be made except as hereinafter provided. One bond certificate for each
maturity of the Bonds, in the aggregate principal amount of such maturity and registered in the
name of Cede & Co., as nominee of The Depository Trust Company, New York, New York
("DTC"), will be issued and required to be deposited with DTC and immobilized in its custody.
The book-entry system will evidence ownership of the Bonds in Authorized Denominations,
with transfers of ownership effected on the rccords of DTC and its participants pursuant to rules
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192
and procedures established by DTC and its participants. The principal of and any redemption
premium on each Bond and interest with respect thereto shall be payable to Cede & Co. or any
other person appearing on the registration books of the Issuer as the registered owner of such
Bond or its registered assigns or legal representatives. Transfer of principal, interest, purchase
price and any redemption premium payments to participants of DTC will be the responsibility of
DTC, and transfer of principal, interest, purchase price and any redemption premium payments
to beneficial owners of the Bonds by participants of DTC will be the responsibility of such
participants and other nominees of such beneficial owners. The Issuer, the Remarketing Agent,
the Tender Agent and the Paying Agent will not be responsible or liable for such transfers of
payments or for maintaining, supervising or reviewing records maintained by DTC, its
participants or persons acting through such participants.
In the event that (a) DTC determines not to continue to act as Securities Depository for
the Bonds or (b) the Issuer determines that continuation of the book-entry system of evidence
and transfer of ownership of the Bonds would adversely affect the interests of the beneficial
owners of the Bonds, the Issuer will discontinue the book-entry system with DTC in accordance
with DTC's rules and procedures. If the Issuer identifies another qualified Securities Depository
to replace DTC, the Issuer will make arrangements with DTC and such other Securities
Depository to effect such replacement and deliver replacement bonds registered in the name of
such other Securities Depository or its Securities Depository Nominee in exchange for the
outstanding Bonds, and the references to DTC or Cede & Co. in this Exhibit I shall thereupon be
deemed to mean such other Securities Depository or its Securities Depository Nominee. If the
Issuer fails to identify another qualified Securities Depository to replace DTC, the Issuer will
deliver replacement bonds in fully registered form in Authorized Denominations in exchange for
the outstanding Bonds as required by DTC.
The Issuer may enter into amendments to any agreement between the Issuer and DTC or
any successor Securities Depository relating to the book-entry system to be maintained with
respect to the Bonds without the consent of the Owners or beneficial owners of the Bonds.
Notwithstanding anything herein to the contrary, principal and interest on Bank Bonds
shall be payable at the rates, times and in the manner provided in the Liquidity Facility.
Section 204 Execution of Bonds. The Bonds shall bear the manual or facsimile
signatures of the Chairman or Vice Chairman of the Board of Commissioners and the Clerk to
the Board of Commissioners or their designees and the corporate seal or a facsimile of the
corporate seal of the Issuer shall be impressed or printed, as the case may be, on the Bonds.
The certificate of the Commission to be endorsed on all Bonds shall bear the manual or
facsimile signature of the Secretary of the Commission and the certificate of authentication of the
Paying Agent to be endorsed on all Bonds shall be executed as provided hereinafter.
In case any officer of the Issuer or the Commission whose manual or facsimile signature
shall appear on any Bonds shall cease to be such officer before the delivery of such Bonds, such
manual or facsimile signature shall nevertheless be valid and sufficient for all purposes the same
as if he had remained in office until such delivery, and any Bonds may bear the manual or
facsimile signatures of such persons as at the actual time of the execution of such Bonds shall be
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193
the proper officers to sign such Bonds although at the date of such Bonds such persons may not
have been such officers.
Section 205 Terms of Bonds.
(a) For any Weekly Interest Rate Period, interest on the Bonds shall be payable on
each Interest Payment Date for the period commencing on the immediately preceding Interest
Accrual Date and ending on the day immediately preceding the Interest Payment Date (or, if
sooner, the last day of the Weekly Interest Rate Period). For any Short-Term Interest Rate
Period or Long-Term Interest Rate Period, interest on the Bonds shall be payable on each Interest
Payment Date for the period commencing on the immediately preceding Interest Accrual Date
and ending on the day immediately preceding such Interest Payment Date. In any event, interest
on the Bonds shall be payable for the final Interest Rate Period to the date on which the Bonds
shall have been paid in full.
(b) Interest on the Bonds shall be computed, in the case of a Long-Term Interest Rate
Period, on the basis of a 360-day year consisting of twelve 30-day months, and in the case of any
other Interest Rate Period, on the basis of a 365- or 366-day year, as appropriate, for the actual
number of days elapsed.
(c) In the manner hereinafter provided, the term of the Bonds shall be divided into
consecutive Interest Rate Periods during each of which the Bonds shall bear interest at a Weekly
Interest Rate, Bond Interest Term Rates or aLong - T erm Interest Rate; provided, however, that at
any time, all Bonds shall bear interest at a Weekly Interest Rate, a Long-Term Interest Rate or
Bond Interest Term Rates and no Bond (except Bank Bonds) shall bear interest at a rate in excess
of 12% per annum. The first Interest Rate Period shall commence on the date of original
issuance of the Bonds and shall be a Weekly Interest Rate Period. On or prior to such date of
original issuance, the initial Weekly Interest Rate borne by the Bonds shall be determined in the
manner provided in this Section 205 by the Underwriter.
(d) (i) Determination of Weeklv Interest Rate. During each Weekly Interest Rate
Period, the Bonds shall bear interest at a Weekly Interest Rate, which shall be determined by the
Remarketing Agent on Wednesday of each week during such Weekly Interest Rate Period, or if
such day shall not be a Business Day, then on the next succeeding Business Day. The first
Weekly Interest Rate determined for each Weekly Interest Rate Period shall be determined on or
prior to the first day of such Weekly Interest Rate Period and shall apply to the period
commencing on the first day of such Weekly Interest Rate Period and ending on and including
the next succeeding Wednesday. Thereafter, each Weekly Interest Rate shall apply to the period
commencing on Thursday and ending on and including the next succeeding Wednesday, unless
such Weekly Interest Rate Period shall end on a day other than Wednesday, in which event the
last Weekly Interest Rate for such Weekly Interest Rate Period shall apply to the period
commencing on Thursday preceding the last day of such Weekly Interest Rate Period and ending
on and including the last day of such Weekly Interest Rate Period. The Weekly Interest Rate
shall be the rate of interest per annum determined by the Remarketing Agent (based on the
examination of tax-exempt obligations comparable in the judgment of the Remarketing Agent to
the Bonds and known by the Remarketing Agent to have been priced or traded under then
prevailing market conditions) to be the minimum interest rate which, if borne by the Bonds,
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194
would enable the Remarketing Agent to sell the Bonds on such date of determination at a price
(without regarding accrued interest) equal to the principal amount thereof. In the event that the
Remarketing Agent fails to establish a Weekly Interest Rate for any week during a Weekly
Interest Rate Period, then the Weekly Interest Rate for such week shall be the same as the
Weekly Interest Rate for the immediately preceding week if the Weekly Interest Rate for such
preceding week was determined by the Remarketing Agent. In the event that a Weekly Interest
Rate for the immediately preceding week was not determined by the Remarketing Agent, or in
the event that the Weekly Interest Rate determined by the Remarketing Agent shall be held to be
invalid or unenforceable by a court of law, then the interest rate for such week shall be a rate per
annum equal to 70'Yo of the interest rate on 30-day high grade unsecured commercial paper notes
sold through dealers by major corporations as reported in The Wan Street Journal on the day the
Weekly Interest Rate would otherwise be determined as provided herein for such Weekly
Interest Rate Period. The Remarketing Agent shan furnish to the Issuer and the Tender Agent on
the date of determination the Weekly Interest Rate so determined by telex, telephone or telecopy,
promptly confirmed in writing or shall make the Weekly Interest Ratc available to the Issuer and
the Tender Agent by readily accessible electronic means.
(ii) Adjustment to Weekly Interest Rate. Subject to Sections 2050)
and 205(k) hereof, the Issuer may adjust the Bonds to bear interest ut a Weekly Interest
Rate by written direction to the Paying Agent, the Tender Agent, the Bank and the
Remarketing Agent at least 30 days prior to the effective date of such adjustment. Such
direction of the Issuer shall specify (1) the effective date of such adjustment to a Weekly
Interest Rate, which shall be (A) a Business Day not earlier than the 30th day following
receipt by the Paying Agent of such direction, (B) in the case of an adjustment from a
Long-Term Interest Rate Period, the day immediately following the last day of the
then-current Long-Term Interest Rate Period or a day on which the Bonds would
otherwise be subject to optional redemption pursuant to Section 301 (b)(iii) hereof if such
adjustment did not occur, and (C) in the case of an adjustment from a Short-Term Interest
Rate Period, the day immediately following the last day of the Short-Term Interest Rate
Period; and (2) the dute of delivery for such Bonds to be purchased. In addition, the
direction of the Issuer shan be accompanied by a Favorable Opinion of Bond Counsel.
During each Weekly Interest Rate Period commencing on a date so specified and ending
on the day immediately preceding the effective date of the next succeeding Interest Rate
Period, the interest rate borne by the Bonds shall be a Weekly Interest Rate.
(iii) Notice of Adiustment to Weekly Interest Rate. The Paying Agcnt
shall give notice by first-class mail of an adjustment to a Weekly Interest Rate Period to
the Owners of the Bonds not less than 12 days (15 days if the then current Interest Rate
Period shall be a Long-Term Interest Rate Period) prior to the effective date of such
Weekly Interest Rate Period. Such notice shall state (I) that the interest rate on the
Bonds will be adjusted to a Weekly Interest Rate unless Bond Counsel shall have failed
to deliver to the Issuer, the Paying Agent, the Bank and the Remarketing Agent a
Favorable Opinion of Bond Counsel as to such adjustment on the effective date of such
adjustment in the Interest Rate Period, in which case the Bonds, if being adjusted from a
Short-Term Interest Period, shall continue to bear interest at Bond Interest Term Rates as
in effect immediately prior to such proposed adjustment in the Interest Rate Period, or if
the Bonds are being adjusted from a Long-Term Interest Rate Period, the Bonds shall be
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195
adjusted to bear interest at a Weekly Interest Rate for the period commencing on the date
which would have been the effective date of such proposed Interest Rate Period, (2) the
effective date of such Weekly Interest Rate Period, and (3) that the Bonds are subject to
mandatory tender for purchase on such effective date and shall set forth the applicable
purchase price.
(e) (i) Determination of Long-Term Interest Rate. During each Long-Term
Interest Rate Period, the Bonds shall bear interest at a Long-Term Interest Rate. The Long-Term
Interest Rate for the Bonds for any Long-Term Interest Rate Period shall be determined by the
Remarketing Agent on a Business Day no earlier than two weeks before the effective date of
such Long -Term Interest Rate Period and no later than 10 a.m. on the effective date of such
Long- Term Interest Rate Period. The Long-Term Interest Rate shall be the rate of interest per
annum determined by the Remarketing Agent (based on the examination of tax-exempt
obligations comparable in the judgment of the Remarketing Agent to the Bonds and known by
the Remarketing Agent to have been priced or traded under then-prevailing market conditions) to
be the minimum interest rate which, if borne by the Bonds, would enable the Remarketing Agent
to sell the Bonds on such effective date at a price equal to the principal amount thereof, plus
accrued interest thereon, if any, plus a premium so long as the Issuer delivers a Favorable
Opinion of Bond Counsel to the effect that pricing to obtain such a premium will not adversely
affect the exclusion of interest on any of the Bonds from gross income for federal income
purposes.
If, for any reason, a Long-Term Interest Rate is not so determined for any Long-Term
Interest Rate Period by the Remarketing Agent on or prior to the first day of such Long-Term
Interest Rate Period and a Liquidity Facility shall be in effect on such date, then the Bonds shall
bear interest at a Weekly Interest Rate as provided in Section 205(d) hereof, and shall continue to
bear interest at a Weekly Interest Rate determined in accordance with Section 205(d) until such
time as the interest rate on the Bonds shall have been adjusted to Bond Interest Term Rates or a
Long- Term Interest Rate as provided herein, and the Bonds shall be subject to purchase upon
notice from the Owners thereof as described in Section 206(a) hereof. If, for any reason, a Long-
Term Interest Rate is not so determined for any Long-Term Interest Rate Period by the
Remarketing Agent on or prior to the first day of such Long-Term Interest Rate Period and no
Liquidity Facility shall be in effect on such date, then the Bonds shall be subject to mandatory
tender for purchase as described in Section 206( c) hereof and if the purchase price of any Bond
shall not be made to any Owner, Section 215(b) shall apply.
(ii) Adjustment to or Continuation of Long-Term Interest Rate.
(A) Subject to Sections 205(j), 205(k) and 205(1) hereof, the Issuer may adjust
the Bonds to bear interest, or continue to bear interest, at a Long-Term Interest Rate by
written direction to the Paying Agent, the Tender Agent, the Bank and the Remarketing
Agent at least 30 days prior to the effective date of such adjustment. The direction of the
Issuer required by the first sentence of this paragraph (A), (1) shall specify the duration of
the Long-Term Interest Rate Period during which the Bonds shall bear interest at a
Long-Term Interest Rate; (2) shall specify the effective date of such Long-Term Interest
Rate Period, which date shall be (aa) a Business Day not earlier than the 30th day
following receipt by the Paying Agent of such direction, (bb) in the case of an adjustment
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from a Long-Term Interest Rate Period to another Long-Term Interest Rate Period, the
day immediately following the last day of the then-current Long-Term Interest Rate
Period or a day on which the Bonds would otherwise be subject to optional redemption
pursuant to Section 301(b)(iii) hereof if such adjustment did not occur, and (cc) in the
case of an adjustment from a Short-Term Interest Rate Period, the day immediately
following the last day of the Short-Term Interest Rate Period; (3) shall specify thc last
day of such Long-Term Interest Rate Period (which last day shall bc either the day
immediately prior to the maturity date of the Bonds, or a day which both immediately
precedes a Business Day and is at least 181 days after the effective date thereof); (4) shall
specify a date on or prior to which Owners are required to deliver such Bonds to be
purchased (if other than such effective date) and (5) with rcspect to any such Long-Term
Interest Rate Period, may specify redemption prices greater, and after periods longer,
than those set forth in Section 301(b)(iii) hereof if the requirement of (B) below is
satisfied.
(B) Such direction of the Issuer shall be accompanied by a Favorable Opinion
of Bond Counsel.
(C) If, by the tenth Business Day preceding the 29th day prior to the last day
of any Long-Term Interest Rate Period, the Paying Agent shall not have received (1)
notice of the Issuer's election that, during the next succeeding Interest Rate Period, the
Bonds shall bear interest at a Weekly Interest Rate or Bond Interest Term Rates and (2) a
commitment for a Liquidity Facility to take effect prior to the end of the Long-Term
Interest Rate Period as required by Section 207(a) hereof, then the next succeeding
Interest Rate Period shall be a Long-Term Interest Rate Period and the Bonds will be
subject to mandatory tender for purchase as provided in Section 206( c) hereof on the first
day of such Long-Term Interest Rate Period.
(D) In the event that the Issuer shall deliver to the Bank, the Remarketing
Agent, the Tender Agent and the Paying Agent, on or prior to the date that the intercst
rate for any Long-Term Interest Rate Period is determined, (1) a notice to thc effect that
the Issuer elects to rescind its election to have the Bonds bear interest at a Long-Term
Interest Rate and (2) a commitment for a Liquidity Facility to be in effect as required by
Section 207(a) hereof, then the interest rate on the Bonds shall not be adjusted to a
Long- Term Interest Rate, and the Bonds shall bear interest at a Weekly Interest Rate or
Bond Interest Term Rates as in effect prior to such election, or if the Bonds were to be
adjusted from a Long-Term Interest Rate, then the Bonds shall bear interest at a Weekly
Interest Rate for the period commencing on the date which would have been the effective
date of such proposed Long-Term Interest Rate Period, and the Bonds shall continue to
be subject to mandatory purchase as provided in Section 206( c) hereof on the day which
would have been the effective date of such proposed Long-Term Interest Rate Period. In
the event that the Issuer shall rescind its election to adjust the interest rate on the Bonds
to a Long-Term Interest Rate as described in this clause (D) and shall have provided a
commitment for a Liquidity Facility to be in effect as required by Section 207(a) hereof,
then the Paying Agent, promptly upon receiving notification thereof, shall mail notice to
the Owners of the Bonds that the Bonds shall not be adjusted to a Long-Term Interest
Rate but shall bear interest at a Weekly Interest Rate or Bond Interest Term Rates as in
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197
effect prior to such event, or if the Bonds were to be adjusted from a Long-Term Interest
Rate, then the Bonds shall bear interest at a Weekly Rate on such date and shall be
subject to mandatory tender as provided herein and in Section 206( c) hereof on the day
that would have been the effective date of such proposed Long-Term Interest Rate
Period.
(iii) Notice of Adiustment to or Continuation of Long-Term Interest
Rate. The Paying Agent shall give notice by first-class mail of an adjustment to a (or the
establishment of another) Long-Term Interest Rate Period to the Owners of the Bonds not
less than 25 days prior to the effective date of such Long-Term Interest Rate Period.
Such notice shall state: (1) that the interest rate on the Bonds shall be adjusted to, or
continue to be, a Long-Term Interest Rate unless (x) Bond Counsel shall have failed to
deliver to the Issuer, the Paying Agent, the Bank and the Remarketing Agent a Favorable
Opinion of Bond Counsel as to such adjustment in the Interest Rate Period on the
effective date of such adjustment, or (y) the Issuer shall elect, on or prior to the date of
determination of such Long-Term Interest Rate, to rescind its election to cause the
adjustment of the interest rate on the Bonds to a Long-Term Interest Rate, in which case
the Bonds, if being adjusted from a Weekly Interest Rate Period or a Short-Term Interest
Rate Period shall continue to bear interest at a Weekly Interest Rate or Bond Interest
Term Rates as in effect immediately prior to such proposed adjustment in the Interest
Rate Period, or if the Bonds are being adjusted from a Long-Term Interest Rate Period,
the Bonds shall be adjusted to bear interest at a Weekly Interest Rate, for the period
commencing on the date which would have been the effective date of such proposed
Interest Rate Period, (2) the effective date and the last day of such Long-Term Interest
Rate Period and (3) that the Bonds are subject to mandatory tender for purchase on such
effective date and the purchase price applicable thereto.
(iv) Adiustment from Long-Term Interest Rate Period. In addition to
an adjustment from a Long-Term Interest Rate Period on the day immediately following
the last day of the Long-Term Interest Rate Period, at any time during a Long Term
Interest Rate Period (subject to the provisions set forth in this paragraph (iv)), the Issuer
may elect, subject to Sections 2050) and 205(k) hereof, that the Bonds no longer shall
bear interest at a Long-Term Interest Rate and shall instead bear interest at a Weekly
Interest Rate, Bond Interest Term Rates or a new Long-Term Interest Rate, as specified in
such election. In the notice of such election, the Issuer shall also specify the effective
date of the new Interest Rate Period, which date shall be (1) a Business Day no earlier
than the 30th day following receipt by the Paying Agent of the notice of election [rom the
Issuer, and (2) a day on which the Bonds shall be subject to optional redemption in
accordance with Section 30l(b)(iii) hereof. The Bonds shall be subject to mandatory
tender for purchase on the effective date of the new Interest Rate Period thereof in
accordance with Section 206( c) hereof, at a purchase price equal to the optional
redemption price set forth in Section 301 (b )(iii) hereof which would be applicable on that
date.
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(f) (i) Determination of Bond Interest Terms and Bond Interest Term Rates.
(A) During each Short-Term Interest Rate Period, each Bond shall bear
interest during each Bond Interest Tem1 for such Bond at the Bond Interest Term Rate for
such Bond. The Bond Interest Term and the Bond Interest Term Rate for each Bond
need not be the same for any two Bonds, even if determined on the same date. Each of
such Bond Interest Terms and Bond Interest Term Rates for each Bond shall be
determined by the Remarketing Agent no later than 12:00 noon New York City time on
the first day of each Bond Interest Term. Except for any Bond purchased by the Bank or
the Issuer and remaining unsold by the Remarketing Agent at the close of business on the
first day of the Bond Interest Term, each Bond Interest Term shall be for a period of days
within the range or ranges announced as possible Bond Interest Terms no later than 9:00
a.m., New York City time, on the first day of each Bond Interest Term by the
Remarketing Agent. Each Bond Interest Term for each Bond shall be a period of not less
than one and not more than 180 days, determined by the Remarketing Agent to be the
period which, together with all other Bond Interest Terms for all Bonds then outstanding,
will result in the lowest overall interest expense on the Bonds over the next succeeding
180 days. Any Bond purchased on behalf of the Issuer and remaining unsold by the
Remarketing Agent as of the close of business on the first day of the Bond Interest Term
for that Bond shall have a Bond Interest Term of one day or, if that Bond Interest Term
would not end on a day immediately preceding a Business Day, a Bond Interest Term
ending on the day immediately preceding the next Business Day. Each Bond Interest
Term shall end on either a day which immediately precedes a Business Day or on the day
immediately preceding the maturity date of the Bonds. If for any reason a Bond Interest
Term for any Bond cannot be so determined by the Remarketing Agent, or if the
determination of such Bond Interest Term is held by a court of law to be invalid or
unenforceable, then such Bond Interest Term shall be 30 days, but if the last day so
determined shall not be a day immediately preceding a Business Day, shall end on the
first day immediately preceding the Business Day next succeeding such last day, or if
such last day would be after the day immediately preceding the maturity date of the
Bonds, shall end on the day immediately preceding the maturity date. In determining the
number of days in each Bond Interest Term, the Remarketing Agent shall take into
account the following factors: (I) existing short-term tax-exempt market rates and indices
of such short-term rates, (II) existing market supply and demand for short-term
tax-exempt securities, (III) existing yield curves for short-term and long-term tax-exempt
securities for obligations of credit quality comparable to the Bonds, (IV) general
economic conditions, (V) economic and financial conditions that may affect or be
relevant to the Bonds, (VI) the Bond Interest Terms of other Bonds and (VII) such other
facts, circumstances and conditions pertaining to financial markets as the Remarketing
Agent, in its sole discretion, shall determine to be rclevant. The last day of any Bond
Interest Term shall be no later than the date the Bonds are subject to mandatory tender for
purchase pursuant to Section 206( d) hereof as a result of the expiration or termination of
the Liquidity Facility other than on account of an Authorized Liquidity Termination.
(B) The Bond Interest Term Rate for each Bond Interest Term for each Bond
shall be the rate of interest per annum determined by the Remarketing Agent (based on
the examination of tax-exempt obligations comparable in the judgment of the
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Remarketing Agent to the Bonds and known by the Remarketing Agent to have been
priced or traded under then-prevailing market conditions) to be the minimum interest rate
which, if bome by such Bond for such Bond Interest Term, would enable the
Remarketing Agent to sell such Bond on the date and at the time of such determination at
a price (without regard to accrued interest) equal to the principal amount thereof. If for
any reason a Bond Interest Term Rate for any Bond is not so established by the
Remarketing Agent for any Bond Interest Term, or such Bond Interest Term Rate is
determined by a court of law to be invalid or unenforeeable, then the Bond Interest Term
Rate for such Bond Interest Term shall be the rate per annum equal to 70% of the interest
rate on high grade unsecured commercial paper notes sold through dealers by major
corporations as reported by The Wall Street Joumal on the first day of such Bond Interest
Term and which maturity most nearly equals the Bond Interest Term for which a Bond
Interest Term Rate is being calculated.
(ii) Adjustment to Bond Interest Term Rates. Subject to
Sections 205(i), 205(k) and 205(1) hereof, the Issuer may adjust the Bonds to bear
interest, or continue to bear interest, at Bond Interest Term Rates by written direction to
the Paying Agent, the Tender Agent, the Bank and the Remarketing Agent at least 30
days prior to the effective date of such adjustment. Such direction of the Issuer shall
specify (1) the effective date of the Short-Term Interest Rate Period (during which the
Bonds shall bear interest at Bond Interest Term Rates), which shall be (A) a Business
Day not earlier than the 30th day following receipt by the Paying Agent of such direction,
(B) in the case of an adjustment from a Long-Term Interest Rate Period, the day
immediately following the last day of the then current Long-Term Interest Rate Period or
a day on which the Bonds would otherwise be subject to optional redemption pursuant to
Section 301(b)(iii) hereof if such adjustment did not occur; provided that, if prior to the
Issuer's making such election any Bonds shall have been called for redemption and such
redemption shall not have theretofore been effected, the effective date of such
Short- Term Interest Rate Period shall not precede such redemption date, and (C) in the
case of an adjustment from a Weekly Interest Rate Period, the day immediately following
the last day of such Interest Rate Period; and (2) the date of delivery of such Bonds to be
purchased. In addition, the direction of the Issuer shall be accompanied by a Favorable
Opinion of Bond Counsel. During each Short - Term Interest Rate Period commencing on
the date so specified and ending, with respect to each Bond, on the day immediately
preceding the effective date of the next succeeding Intcrest Rate Period with respect to
such Bond, each Bond shall bear interest at a Bond Interest Term Rate during each Bond
Interest Term for such Bond.
(iii) Notice of Adjustment to Bond Interest Term Rates. The Paying
Agent shall give notice by first-class mail of an adjustment to a Short-Term Interest Rate
Period to the Owners of the Bonds not less than 12 days (15 days if the then-current
Interest Rate Period shall be a Long-Term Interest Rate Period) prior to the effective date
of such Short-Term Interest Rate Period. Such notice shall state (1) that the Bonds shall
bear interest at Bond Interest Term Rates unless Bond Counsel shall have failed to deliver
to the Issuer, the Trustee and the Remarketing Agent a Favorable Opinion of Bond
Counsel as to such adjustment on the effective date of such adjustment in the Interest
Rate Period, in which case the Bonds, if being adjusted from a Weekly Intcrest Rate
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200
Period, shall continue to bear interest at a Weekly Interest Rate as in effect immediately
prior to sueh proposed adjustment in the Interest Rate Period, or if the Bonds are being
adjusted from a Long-Term Interest Rate Period, the Bonds shall be adjusted to bear
interest at a Weekly Interest Rate, and that during such Short-Term Interest Rate Period,
each Bond will have one or more consecutive Bond Interest Terms during each of which
such Bond will bear a Bond Interest Term Rate for the period commencing on the date
which would have been the effective date of such proposed Interest Rate Period, (2) the
effective date of such Short-Term Interest Rate Period, (3) that the Bonds are subject to
mandatory tender for purchase on the effective date of such Short-Term Interest Rate
Period and shall set forth the applicable purchase price and (4) that a Bond Intcrest Term
and a Bond Interest Term Rate for each Bond will be determined not later than the first
day of such Bond Interest Term.
(iv) Adiustment from Short-Term Interest Rate Period. At any time
during a Short-Term Interest Rate Period, the Issuer may elect upon at least 30 days'
notice, pursuant to Section 205(d)(ii) or 205(e)(ii) hereof, but subject to Sections 205G)
and (k) hereof, that the Bonds no longer shall bear interest at Bond Interest Term Rates
and shall instead bear interest at a Weekly Interest Rate or a Long-Term Interest Rate, as
specified in such election.
The date on which all Bond Interest Terms determined shall end shall be the last day of
the then-current Short-Term Interest Rate Period and the day next succeeding such date shall be
the effective date of the Weekly Interest Rate Period or Long-Term Interest Rate Period elected
by the Issuer.
(g) The determination of the Weekly Interest Rate and Long-Term Interest Rate and
each Bond Interest Term and Bond Interest Term Rate by the Remarketing Agent shall be
conclusive and binding upon the Remarketing Agent, the Paying Agent, the Tendcr Agent, the
Issuer, the Bank and the Owners of the Bonds.
(h) Interest on the Bonds shall be payable on each Interest Payment Date by the
Paying Agent during any Weekly Interest Rate Period or Long-Term Interest Rate Period, by
check mailed on the date on which interest is due to the Owners of the Bonds at the close of
business on the Record Date in respect of such Interest Payment Date at the addresses of Owners
as they shall appear on the registration books maintained pursuant to this Exhibit 1. In the case
of (i) Bonds bearing interest at a Bond Interest Term Rate, or (ii) any Owner of Bonds bearing
interest at other than a Bond Interest Term Rate in an aggregate principal amount in excess of
$1,000,000 as shown on the registration books kept by the Paying Agent who, prior to the
Record Date next preceding any Interest Payment Date, shall have provided, or caused to be
provided, the Paying Agent with wire transfer instructions, interest payable on such Bonds shall
be paid in accordance with the wire transfer instructions provided by the Owner of such Bonds
(or by the Remarketing Agent on behalf of such Owner); provided, however, that during any
Short- Term Interest Rate Period, interest on any Bond shall be payable only upon presentation
and surrender of such Bond to the Tender Agent at its Principal Office.
(i) In the event that the Issuer shall elect to convert the interest rate on the Bonds to a
Weekly Interest Rate, Bond Interest Term Rates or a Long-Term Interest Rate as provided in
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Sections 205(d)(ii), 205(e)(ii) or 205(f)(ii) hereof, then the written direction fumished by the
Issuer to the Paying Agent, the Bank, the Tender Agent and the Remarketing Agent as required
by such sections shall be made by registered or certified mail, or by telex or tcIecopy, confirmed
by registered or certified mail.
G) Notwithstanding anything in this Section 205 to the contrary, in connection with
any adjustment of the Interest Rate Period on the Bonds, the Issuer shall cause to be provided to
the Paying Agent, the Bank and the Remarketing Agent a Favorable Opinion of Bond Counsel
on the effective date of such adjustment. In the event that Bond Counsel shall have failed to
deliver a Favorable Opinion of Bond Counsel on any such date, then the Interest Rate Period on
the Bonds shall not be adjusted, and the Bonds shall continuc to bear interest at a Weekly Interest
Rate or Bond Interest Term Rates, as the case may be, as in effect immediately prior to such
proposed adjustment in the Interest Rate Period; provided, however, that in thc event that the
Bonds are being adjusted from a Long-Term Interest Rate Period, and Bond Counsel shall have
failed to deliver such Favorable Opinion of Bond Counsel on the effective date of such
adjustment, then the Bonds nevertheless shall be adjusted to bear interest at a Weekly Interest
Rate as provided in Section 205(d) hereof; provided, however, the Bonds will be adjusted to bear
interest at a Long-Term Interest Rate in the event a Liquidity Facility will not be in effect on the
date that would have been the effective date of the proposed Interest Rate Period. In any event,
if notice of such adjustment has been mailed to the Owners of the Bonds as provided in this
Section 205 and Bond Counsel shall have failed to deliver a Favorable Opinion of Bond Counsel
on the effective date as herein described, the Bonds shall continue to be subject to mandatory
purchase on the date which would have been the effective date of such acUustmcnt as provided in
Section 206( c) hereof.
(k) Notwithstanding anything in this Section 205 to the contrary, if a Liquidity
Facility is required to be in effect with respect to the Bonds pursuant to Section 207(a) hereof, in
connection with the adjustment of any Interest Rate Period which would require the mandatory
tender for purchase of Bonds at a purchase price (exclusive of accrued interest) greater than the
principal amount thereof as provided in Section 206(c) hereof, the Issuer, as a condition to
exercising its option to cause an adjustment in the Interest Rate Period applicable to the Bonds,
shall deliver to the Paying Agent prior to the mailing by the Paying Agent of notice of such
adjustment in the Interest Rate Period, Available Moneys for the purpose of paying such
premium, unless the Liquidity Facility then in effect with respcct to the Bonds provides for the
payment of such premium.
(1) Notwithstanding anything in this Section 205 to the contrary, in connection with
the conversion to Bond Interest Term Rates, the Issuer, as a condition to exercising its option to
cause such a conversion, shall deliver to the Paying Agent a commitment for a Liquidity Facility
to be in effect after such conversion that will satisfy the requirements of Section 207(a)(ii).
Section 206 Purchase of Bonds.
(a) Optional Tender for Purchase During Weeklv Interest Rate Period. During any
Weekly Interest Rate Period and if a Liquidity Facility is in cffect, any Bond shall be purchased
in whole (or in part if both the amount to be purchased and the amount remaining unpurchased
shall consist of Authorized Denominations) from its Owner at the option of the Owner on any
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202
Business Day at a purchase price equal to the principal amount thereof plus accrued interest, if
any, from and including the Interest Accrual Date immediately preceding the date of purchase
through and including the day immediately preceding the datc of purchase, unless the date of
purchase shall be an Interest Accrual Date, in which case at a purchase price equal to the
principal amount thereof, payable in immediately available funds, upon delivery to the Tender
Agent at its Principal Office and to the Remarketing Agent of an irrevocable written notice
which states the principal amount of such Bond and the date on which the same shall be
purchased, which date shall be a Business Day at least seven days after the delivery of such
notice to the Tender Agent. Any notice delivered to the Tender Agent and Remarketing Agent
after 11 :00 a.m., New York City time, shall be dcemed to havc been received on the next
succeeding Business Day.
(b) Mandatory Tender for Purchase on Dav Next Succeeding the Last Day of Each
Bond Interest Term. On the day next succecding the last day of each Bond Interest Term for a
Bond, unless such day is the first day of a new Interest Rate Period (in which event such Bond
shall be subject to mandatory purchase pursuant to Section 206(c)), such Bond shall be
purchased from its Owner at a purchase price equal to the principal amount thereof payable in
immediately available funds. The purchase price of any Bond so purchased shall be payable
only upon surrender of such Bond to the Tender Agent at its Principal Office, accompanied by an
instrument of transfer thereof, in form satisfactory to the Tender Agent, executed in blank by the
Owner thereof or his duly authorized attomey, with such signature guaranteed by a bank, trust
company or member firm of the New York Stock Exchange.
(c) Mandatory Tender for Purchase on First Day of Each Interest Rate Period. The
Bonds shall be subject to mandatory tender for purchase on the first day of each Interest Rate
Period, or on the day which would have been the first day of an Interest Rate Period had one of
the events specified in Sections 205(e)(ii)(D) or 205G) hereof not occurred which resulted in the
interest rate on the Bonds not being adjusted, at a purchase price, payable in immediately
available funds, equal to the principal amount of the Bonds or, in the case of a purchase on the
first day of an Interest Rate Period which shall be preceded by a Long-Term Intcrest Rate Period
and which shall commence prior to the day originally established as the last day of such
prcceding Long-Term Interest Rate Period, at a purchase price equal to the optional redemption
price set forth in Section 301 (b)(iii) hereof which would have been applicablc to the Bonds on
such mandatory purchase date if such preceding Long-Term Interest Rate Period had continued
to the day originally established as its last day, plus accrued interest, if any.
(d) Mandatory Tender for Purchase upon Expiration, Cancellation or Termination of
the Liquidity Facility. So long as the Bonds shall not have been adjusted to a Long-Term
Interest Rate, if at any time the Paying Agent shall give notice in accordance with Section 207(f)
hereof that the Bonds shall, on the date specified in such notice, cease to be subject to purchase
pursuant to the Liquidity Facility (other than because of an Authorized Liquidity Termination),
the Bonds shall be subject to mandatory tender for purchase at a purchase price equal to the
principal amount thereof, plus accrued interest, if any, to the date of purchase:
(i) on the fifth Business Day next preceding the date on which the
Liquidity Facility then in effect is stated to expire, terminate or be cancelled (unless
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203
extended), other than a termination of a Liquidity Facility on account of an Authorized
Liquidity Termination; and
(ii) if the Liquidity Facility then in effect will terminate or be
cancellcd prior to its stated expiration date on account of delivery of a Substitute
Liquidity Facility, on the proposed effective date of the Substitute Liquidity Facility.
Notwithstanding anything in this Section 206(d) to the contrary, in the event that in
connection with any such expiration, cancellation or termination of an existing Liquidity Facility
and replacement thereof by a Substitute Liquidity Facility, the Issuer delivers to the Paying
Agent, the Tender Agent and the Remarketing Agent, prior to the date that notice of such
termination, cancellation or expiration and substitution is given by the Paying Agent as provided
in Section 207(f) hereof, written evidence from each Rating Agency then rating the Bonds to the
effect that such termination, cancellation or expiration and substitution in and of itself will not
result in the withdrawal or reduction of any rating then applicable to the Bonds, then the Bonds
shall not be subject to mandatory tender for purchase as provided in this Section 206(d) solely as
a result of such termination, cancellation or expiration and substitution.
(e) Mandatory Tender for Purchase at Option of the Issuer. At the option of the
Issuer, during any Weekly Rate Period, the Bonds shall be subject to mandatory tender for
purchase on any Interest Payment Date at a purchase price, payable in immediately available
funds, equal to the principal amount of the Bonds, plus accrued interest, if any.
(f) Noticc of Mandatory Tender for Purchase; Delivery of Bonds to be Purchased;
Notice of Authorized Liquidity Termination. (i) In connection with any mandatory tender for
purchase of Bonds in accordance with Section 206( c) or 206( d) hereof, the Paying Agent shall
give notice of a mandatory tender for purchase as a part of the notice given pursuant to
Section 205( d)(iii), 205( e )(iii), 205(f)(iii) or 207(f) hereof. In connection with any mandatory
tender for purchase of Bonds in accordance with Section 206(c), the Paying Agent shall give
notice by first-class mail to the Owners ofthc Bonds not less than 12 days prior to thc mandatory
tender date. Such notice shall state (A) in thc case of a mandatory tender for purchase pursuant
to Section 206( c) hereof, the type of Interest Rate Period to commence on such mandatory
purchase date; (B) in the case of a mandatory tender for purchase pursuant to Section 206(d)
hereof, that the Liquidity Facility will expire, be cancelled, be substituted for or terminate and
that the Bonds shall no longer be subject to purchase from the Liquidity Facility then in effect
and that any rating applicable thereto will be reduced or withdrawn; (C) that the purchase price
of any Bond so subject to mandatory purchase shall be payable only upon surrender of such
Bond to the Tender Agent at its Principal Office for delivery of Bonds, accompanied by an
instrument of transfer thereof, in form satisfactory to the Tender Agent, executed in blank by the
Owner thereof or his duly-authorized attomey, with such signature guaranteed by a bank, trust
company or member firm of the New York Stock Exchange; (D) that all Bonds so subject to
mandatory tender for purchase shall be purchased on the mandatory purchase date, and that if the
Owner of a Bond subject to mandatory tender for purchase shall not surrender such Bond to the
Tender Agcnt for purchase on such mandatory purchase date, then such Bond shall be deemed to
be an Undelivered Bond, and that no interest shall accrue thcreon on and after such mandatory
purchase date and that the Owner thereof shall have no rights under this Resolution other than to
receive payment of the purchase price thereof.
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(ii) For payment of the purchase price of any Bond required to be
purchased pursuant to this Section 206 on the purchase date specified in the applicable
notice, such Bond must be delivered, at or prior to 10:00 a.m., New York City time, on
the date specified in such notice, to the Tender Agent at its Principal Office, accompanied
by an instrument of transfer thereof~ in form satisfactory to the Tender Agent, executed in
blank by the Owner thereof or his duly authorized attorney, with such signature
guaranteed by a commercial bank, trust company or member firm of the New York Stock
Exchange. In the event any such Bond is delivered after 10:00 a.m. on such date,
payment of the purchase price of such Bond need not be made until the Business Day
following the date of delivery of such Bond, but such Bond shall nonetheless be decmed
to have been purchased on the date specified in such notice and no interest shall accrue
thereon after such date.
(iii) The Bonds shall not be subject to mandatory tender as a result of
the occurrence of an Authorized Liquidity Termination. If the Paying Agent shall receive
notice of the occurrence of an Authorized Liquidity Termination, it shall notify the
Commission and the Owners that an Authorized Liquidity Termination has occurred
within one Business Day following its receipt of such notice.
(g) Irrevocable Notice Deemed to be Tender of Bond; Undelivcred Bonds.
(i) The giving of notice by an Owner of any Bond as provided in
Section 206(a) hcreof shall constitute the irrevocable tender for purchase of each such
Bond with respect to which such notice shall havc been given, regardless of whether such
Bond is delivered to the Tender Agent for purchase on the relevant purchase date as
provided in this Section 206.
(ii) The Tender Agent may refuse to accept delivery of a Bond for
which a proper instrument of transfer has not been provided; such refusal, however, shall
not affect the validity of the purchase of such Bond as herein described. If any Owner of
a Bond who shall have given notice of tender of purchase pursuant to Section 206(a)
hereof shall fail to deliver such Bond to the Tender Agent at the place and on the
applicable date and at the time specified, or shall fail to deliver such Bond properly
endorsed, such Bond shall constitute an Undelivered Bond. If funds in the amount of the
purchase price of the Undelivered Bonds (including the Undelivered Bonds referred to in
Section 206(f) hereof) are available for payment to the Owner thereof on the date and at
the time specified, from and after the date and time of that required delivery, (1) each
Undelivered Bond shall be deemed to be purchased and shall no longer be deemed to be
outstanding under this Exhibit 1; (2) intcrest shall no longer accrue thereon; and (3) funds
in the amount of the purchase price of each such Undelivered Bond shall be held by the
Tender Agent for the benefit of the Owner thereof (provided that the Owner shall have no
right to any investment proceeds derived from such funds), to be paid on delivery (and
proper endorsement) of such Undelivered Bond to the Tender Agent at its Principal
Office for delivery of Bonds. Any funds hcld by the Tender Agent as described in clause
(3) of the preceding sentence shall be held uninvested and not commingled.
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(h) Insufficient Funds for Purchases. (a) If the moneys available for the purchase of
the Bonds pursuant to this Article are inadequate for the purchase of all such Bonds that are
tendered on any purchase date specified herein, all such Bonds subject to such purchase shall be
returned to the Owners thereof and shall continue to bear interest at the Failed Tender Rate from
such purchase date to the date on which the earliest of the following occurs:
(i) the date that such Bonds are converted to a Long-Term Interest Rate to
maturity (which shall not be more than ninety (90) days from the date of such failed purchase);
(ii) the date on which any dcfault by the Bank under the terms of the Liquidity
Facility has been cured; or
(iii) the date on which a Substitute Liquidity Facility mecting the requirements
of Section 207 hereof has been obtained.
(b) If paragraph (a) hereof becomes applicable, the Tender Agent shall immediately
(but no later than the end of the next succeeding Business Day) (i) return all tendered Bonds to
the Owners thereof, (ii) retum all moneys received for the purchase of such Bonds to the persons
who provided such moneys and (iii) notify all such Owners in writing of the interest rate to be
cffective pursuant to the preceding paragraph.
(c) If paragraph (a) hcreof becomes applicable, the purchase price of all Bonds
subject to sllch purchase shall be deemed not to be due until the date on which the earliest of the
events described in clauses (i), (ii) or (iii) of paragraph (a) hereof shall occur.
(i) Book-Entrv Tender and Delivery Procedures. Notwithstanding anything to the
contrary contained in this Exhibit 1, for so long as a Securities Depository Nominee is the sole
registered owner of the Bonds, all tendcrs for purchase and deliveries of Bonds tendered for
purchase or subject to mandatory tender under the provisions of this Exhibit 1 shall be made
pursuant to the Securities Depository's procedures as in effect from time to time and neither the
Issuer, the Tender Agent, the Paying Agent nor the Remarketing Agent shall have any
responsibility for or liability with respect to the implementation of such procedures.
Section 207 The Liquidity Facility.
(a) The Issuer shall cause a Liquidity Facility to be in effect during any Weekly
Interest Rate Period, any Short-Term Interest Rate Period and on the first day of any Long-Term
Interest Rate Period; provided, however, if the Bonds are being adjusted from one Long-Term
Interest Rate Period to another Long-Term Interest Rate Pcriod, such requirement for a Liquidity
Facility shall not apply and no Liquidity Facility need be in effect for the mandatory tender for
purchase that will occur on the first day of the Long-Term Interest Rate Period pursuant to
Section 206(c) hereof. The Standby Agreement and any Substitute Liquidity Facility shall be an
obligation of the Bank to pay, subject to the conditions set forth in the Liquidity Facility, to the
Tender Agent upon request made with respect to the Bonds relatcd thereto and in accordance
with the terms thereof:
(i) an amount not exceeding the aggregatc principal amount of such
Bonds to pay the portion of the purchase price of such Bonds equal to the principal
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amount of such Bonds delivered or required to be delivered to thc Tender Agent for
purchase; and
(ii) while such Bonds bear interest at a Weekly Interest Rate, an
amount equal to the interest on such Bonds for 35 days computed at the rate of 12% per
annum, to pay the portion of the purchase price of such Bonds equal to interest on such
Bonds delivered or required to be delivered to the Tender Agent for purchase and, if the
Bonds are converted to bear interest at Bond Interest Term Rates, an amount as shall be
determined to be necessary to provide for the payment pursuant to the applicable
Liquidity Facility of such interest portion of such purchase price in ordcr to obtain
short-term ratings on such Bonds from S&P of not less than A-I, and from Moody's of
not less than VMIG-I.
(b) If at any time the Issuer shall deliver to the Tender Agent (i) a Substitute
Liquidity Facility, (ii) an Opinion of Counsel stating that the dclivcry of such Substitute
Liquidity Facility is authorized under this Exhibit 1 and complies with the terms hereof, (iii) a
Favorable Opinion of Bond Counsel, (iv) one or more Opinions of Counsel, addressed to the
Tender Agent and the Remarketing Agent to the effect, singly or togcther, that the Substitutc
Liquidity Facility is a legal, valid and binding obligation of the Bank, enforceable against the
Bank in accordance with its terms, except as limited by applicable reorganization, insolvency,
liquidation, readjustment of debt, moratorium or other similar laws affecting the enforcement of
the rights of creditors generally as such laws may be applied in the event of a reorganization,
insolvency, liquidation, readjustment of debt or other similar proceeding of or moratorium
applicable to the Bank or the Issuer and by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law), and (v) written evidencc
that notice of mandatory tender as required by Section 206(f) hereof has been sent to the Owners
prior to such substitution, then the Tender Agent shall, so long as such Substitute Liquidity
Facility shall contain administrative procedures which are acceptable to the Tender Agent in its
rcasonable discretion, accept such Substitute Liquidity Facility, enforce payment of any amounts
due under the existing Liquidity Facility to the extent required by this Exhibit 1 and promptly
surrender the existing Liquidity Facility to the issuer thereof.
(c) Any Substitutc Liquidity Facility shall bc a purchase agreement, letter of credit or
other liquidity facility, or any combination thereof, issued by one or more commercial banks or
savings and loan associations, or other financial institutions, the terms of which shall in all
respects material to the intercsts of the Owners be the samc as the Standby Agreement, except
that the amount available under such Substitute Liquidity Facility to pay the intercst portion of
the purchase price of the Bonds pursuant to such Substitute Liquidity Facility may change in
accordance with Section 207(a) hereof and that the expiration date of such Substitute Liquidity
Facility may be later than the expiration date for the existing Liquidity Facility. Any Substitute
Liquidity Facility must provide for the purchase of all Bank Bonds from the Bank. No Substitutc
Liquidity Facility shall become effective without the approval of the Commission.
(d) If a Liquidity Facility is in effect with respect to the Bonds, the Tender Agent
shall present all drafts, demands, and other documents required by such Liquidity Facility (in the
manner therein permitted and by the time required thereby) for the payment of funds thereunder
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207
(after taking into account funds from remarketing as herein provided then held by the Tender
Agent) sufficient to pay, on each purchase date, the purchase price for such Bonds tendered.
(e) In connection with the termination, expiration or cancellation or substitution of
the Liquidity Facility, the Paying Agent is hereby directed to give notice to the Owners of the
Bonds as provided in Section 207(f) hereof.
(f) The Paying Agent shall give notice by mail to the Owners of the Bonds on or
before the 30th day preceding the expiration of any Liquidity Facility in accordance with its
terms, or any cancellation, termination or substitution of the Liquidity Facility which will cause
the Bonds to cease to be subject to purchase from the Liquidity Facility (except upon the
occurrence of an Authorized Liquidity Termination in which case notice will be given as
described in Section 206(f)(iii) hereof), which notice shall, to the extent applicable, (1) describe
generally the Liquidity Facility in effect prior to such cancellation, termination or expiration and
the Substitute Liquidity Facility in effect or to be in effect upon such cancellation, termination or
expiration, (2) state the date of such cancellation, termination, expiration or proposed
substitution of the Substitute Liquidity Facility, (3) describe any termination of the Liquidity
Facility and the effective date thereof, (4) specify the rating, if any, to be applicable to Bonds
after such cancellation, termination, expiration or substitution of the Liquidity Facility or statc
that no ratings havc been obtained with respect to the Bonds for the period subsequent to such
cancellation, termination, expiration or substitution of the Liquidity Facility, and (5) unless the
Liquidity Facility has been replaced by a Substitute Liquidity Facility in respect of such Bonds
as described in the last paragraph of Section 206(d) hereof, state (A) that the Bonds will be
purchased pursuant to Section 206(d) and (B) the date of such purchase, which date shall be a
Business Day that is not less than ten days after the giving of such notice and at least five days
prior to such cancellation, expiration or termination. The Issuer shall give the Tender Agent, the
Remarketing Agent and the Paying Agent written notification of any cancellation, termination,
expiration or substitution of the Liquidity Facility as soon as practicable after receiving
knowledge thereof. The Issuer shall provide the Tender Agent and the Paying Agent with
VvTitten notice of any information required to enable the Paying Agent to give the foregoing
notice and shall provide the Paying Agent with the form of such notice; provided, however, that
in the event the Issuer shall fail to provide such notice, the Tender Agent shall provide such
notice to the Paying Agent.
(g) Following the conversion of all of the Bonds to a Long-Term Interest Rate until
their maturity, thc Bonds shall no longer be subject to tender for purchase.
Section 208 Authentication of Bonds. Only such Bonds as shall have endorsed thereon
a certificate of authentication substantially in the form hereinabove set forth, duly executed by
the Paying Agent, shall be entitled to any benefit or security under this Exhibit 1. No Bond shall
be valid or obligatory for any purpose unless and until such certificate of authentication on the
Bond shall have been duly executed by the Paying Agent, and such certificate of the Paying
Agent upon any such Bond shall be conclusive evidence that such Bond has been duly
authenticated and delivered under this Exhibit 1. The Paying Agent's celtificate of
authentication on any Bond shall be deemed to have been duly executed if signed by the Paying
Agent or his designee, but it shall not be necessary that the same person sign the certificate of
authentication on all of the Bonds that may be issued hereunder at anyone time.
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208
Section 209 Exchange of Bonds. Bonds, upon surrender thereof at the Principal Office
of the Paying Agent, together with an assignmcnt duly executed by the Owner or his attorncy or
legal representative in such form as shall be satisfactory to the Paying Agent, may, at the option
of the owner thereof, be exchanged for an equal aggregate principal amount of Bonds of the
same maturity, of any Authorized Denominations and in the same form as the Bonds surrendered
for exchange.
The Issuer shall make provision for thc exchange of Bonds at the Principal Otlice of the
Paying Agent.
Section 210 Registration and Transfer of Bonds. The Issuer shall appoint such
registrars, transfer agents, paying agents, depositaries or other agents as may be necessary for the
registration, registration of transfer and exchange of Bonds within a reasonable time according to
then current commercial standards and for the timely payment of principal, interest and any
redemption premium with respect to the Bonds. First-Citizens Bank & Trust Company is hereby
appointed as the Paying Agent for the Bonds, subject to the right of the Board of Commissioners
of the Issuer to appoint a successor Paying Agent at any time. The Paying Agent shall keep the
books of the Issuer for registration, registration of transfer, exchange and payment of the Bonds
as provided in this Exhibit 1. Such registration books shall be available at all reasonablc times
for inspection by the Issuer, and the Paying Agent shall provide to the Issuer, upon its written
request, an accurate copy of the names and addresses of the Owners set forth on such books. The
Paying Agent may at any time resign and be discharged of the duties and obligations created by
this Exhibit 1 by giving at least 60 days' notice to the Tender Agent, the Issuer, the Bank and the
Remarketing Agent. Any resignation or removal of the Paying Agent shall take effect on the day
a successor Paying Agent shall have been appointed by the Issuer and shall have accepted such
appointment. If no Paying Agent is appointed within 60 days after a notice of resignation, the
resigning party may appoint a successor or petition any court of competent jurisdiction to appoint
a successor.
The transfer of any Bond may be registered only upon the books kcpt for the registration
of and registration of transfer of Bonds upon surrcnder thereof to the Paying Agent together with
an assignment duly executed by the Owner or his attorney or legal representative in such form as
shall be satisfactory to the Paying Agent. Upon any such registration of transfer the Issuer shall
cause to be executed and the Paying Agent shall authenticate and deliver in exchange for such
Bond a new Bond or Bonds, registered in the name of the transferee, of any Authorized
Denominations, in an aggregate principal amount equal to the principal amount of such Bond
surrendered and of the same maturity.
In all cases in which Bonds shall be exchanged or the transfer of Bonds shall be
registered hereunder, the Issuer shall cause to be executed and the Paying Agent shall
authenticate and deliver at the earliest practicable time Bonds in accordance with the provisions
of this Exhibit 1. All Bonds surrendered in any such exchange or registration of transfer shall
forthwith be cancelled by the Paying Agent. No service chargc shall be made for any
registration of transfer or exchange of Bonds, but the Issuer and the Paying Agent may require
payment of a sum sutlicient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Bonds. Except in connection with
a purchase of any Bond upon remarketing and except for the unredeemed portion of any Bond
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209
which has been called for redemption in part, neither the Paying Agent nor the Issuer shall bc
obligated to exchange or register the transfer of any Bond which has been called or selected for
call for redemption in whole or in part. Except in connection with a purchase of any Bond upon
remarketing, neither the Paying Agent nor the Issuer shall be obligated to exchange or register
the transfer of any Bond during a pcriod of 15 days preceding the giving of a notice of
redemption. If the transfer of any Bond which has been called or selected for call for redemption
in whole or in part is required by this Exhibit 1, any notice of redemption which has been given
to the transferor shall be binding upon the transferee and a copy of the notice of redemption shall
be delivered to the transferee by the Paying Agent along with the Bond or Bonds.
Section 211 Ownership of Bonds. The Issuer, the Paying Agent, the Tender Agent and
any agent of the Issuer, the Paying Agent or the Tender Agent shall treat the person in whose
name any Bond is registered as the owner of such Bond for the purpose of receiving payment of
principal of and premium, if any, and interest on, such Bond, and for all other purposes
whatsoever, whether or not such Bond be overdue, and, to the extent permitted by law, neither
the Issuer, the Paying Agent, the Tender Agent nor any such agent shall be affected by notice to
the contrary.
Section 212 Initial Deliverv of Bonds. The Bonds shall be exccuted substantially in
the forms and in the manner hereinabove set forth, shall bc deposited with the Paying Agent for
authentication and shall be delivered by the Paying Agent to or upon the order of the State
Treasurer of the State for dclivery to or upon the order of the purchasers thereof, but before the
Bonds shall be delivered to or upon the order of the purchasers thereof, there shall be filed or
deposited with the Commission the following:
(a) a copy, certified by the Secretary or any Deputy Secretary of the Commission to
be a true and correct copy, of the resolution or resolutions of the Commission approving the
issuance of and awarding or providing for the award of the Bonds and approving the Standby
Agreement;
(b) a copy, certified by the Clerk to the Board of Commissioners of the Issuer to be a
true and correct copy, of this Exhibit 1; and
(c) fully executed counterparts of the Remarkcting Agreement, the Standby
Agreement and the Tender Agreement.
When the documents mentioned in paragraphs (a) to (c), inclusivc, of this Section shall
have been filed or deposited with the Commission and whcn the Bonds shall have been executed
and authenticated as required by the Resolution and this Exhibit 1, the State Treasurer shall
deliver the Bonds at one time to or upon the order of the purchasers thereof, but only upon
payment to or upon the order of the State Treasurer of the purchase price of the Bonds.
Section 213 Deliverv of Purchased Bonds. Each Bond purchased by the Tender Agent
shall be delivered by the Tender Agent to the Paying Agent, and the Paying Agent shall register
the transfer of such Bond upon the books kept for the registration of and registration of transfer
of Bonds. Thereupon the Issuer shall cause to be executed and the Paying Agent shall
authenticate and deliver a new registered Bond or Bonds, registered in the name of the purchaser
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210
or purchasers thereof, in an aggregate principal amount equal to the principal anlOunt of the
purchased Bond, in Authorized Denominations, of like date, tenor and maturity, in exchange for
such Bond.
Section 214 Mutilated. Destroyed, Stolen or Lost Bonds. In case any Bond shall
become mutilated or be destroyed, stolen or lost, the Issuer shall cause to be executed, and the
Paying Agent shall authenticate and deliver, a new Bond of like date, tenor and maturity in
exchange and substitution for and upon the cancellation of such mutilated Bond or in lieu of and
in substitution for such Bond destroyed, stolen or lost, and the Owner shall pay the reasonable
expenses and charges of the Issuer and the Paying Agent in connection therewith and, in case of
a Bond destroyed or lost, the Owner shall file with the Paying Agent evidence satisfactory to it
and to the Issuer that such Bond was destroyed or lost, and of his ownership thereof, and shall
furnish the Issuer and the Paying Agent indemnity satisfactory to them.
Every Bond issued pursuant to the provisions of this Section 214 in exchange or
substitution for any Bond which is mutilated, destroyed, lost or stolen shall constitute an
additional contractual obligation of the Commission, whether or not the destroyed, lost or stolen
Bond shall be found at any time, or be enforceable by anyone, and shall be entitled to all the
benefits hereof equally and propOltionately with any and all other Bonds duly issued under this
Exhibit 1. All Bonds shall be held and owned upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Bonds, and shall preclude any and all other rights or remedies, notwithstanding any law
or statute existing or hereafter enacted to the contrary with respect to the replacement or payment
of negotiable instruments or other securities without their surrender.
Section 215 Early Maturity of Bonds.
(a) If payment of the purchase price of any Bond shall not be made to any Owner
within five Business Days after a purchase date following an Authorized Liquidity Termination
(unless a Substitute Liquidity Facility is then in effect), the principal of all outstanding Bonds
shall become and be immediately due and payable on the next succeeding Business Day. In such
case, the Bonds shall bear interest at the lesser of (a) thc sum of (i) the bond equivalent yield for
91 day United States Treasury bills sold at the last United States Treasury auction occurring prior
to such day, which yield shall be calculated by the Tender Agent in accordance with standard
practices in the banking industry on the basis of the discount rate at which such bills were sold
plus (ii) one percent and (b) 12% per annum, in either case beginning after such five Business
Days until such principal is paid.
(b) If payment of the purchase price of any Bond shall not be made to any Owner
within 75 days after a purchase date (unless a Substitute Liquidity Facility is then in effect), the
principal of all outstanding Bonds shall become and be immediately due and payable on the next
succeeding Business Day. In such case, the Bonds shall bear interest at the lesser of (a) the sum
of (i) the bond equivalent yield for 91 day United States Treasury bills sold at thc last United
States Treasury auction occurring prior to such day, which yield shall be calculated by the
Tender Agent in accordance with standard practices in the banking industry on the basis of the
discount rate at which such bills were sold plus (ii) one percent and (b) 12% per annum, in either
case beginning on such Business Day until such principal is paid.
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211
(c) With respect to Section 215(a) and Section 215(b), for the pcriod bcginning on the
purchase date on which the purchase price is not paid to an Owner and ending on the day before
the Bonds become immediately due and payable (or the date of the effectiveness of a Substitute
Liquidity Facility which prevents such acceleration from occurring), the Bonds shall bear interest
at a rate per annum equal to 70% of the interest rate on high grade unsecured commercial paper
notes sold through dealers by major corporations as reported in The Wall Street Journal on such
purchase date.
ARTICLE III.
REDEMPTION OF BONDS
Section 301 Terms of Redemption.
(a) The Bonds shall not be subject to prior redemption except as provided in this
Article III.
(b) Optional Redemption.
(i) During a Weekly Interest Rate Period, the Bonds shall be subject
to optional redemption by the Issuer, in whole on any Business Day or in part on any
Interest Payment Date, at a redemption price equal to 100% of the principal amount
thereof to be redeemed plus accrued interest, if any, to the redemption date.
(ii) On the day succeeding the last day of any Bond Interest Term with
respect to any Bond, such Bond shall be subject to optional redemption by the Issuer, in
whole or in part, at a redemption price equal to 100% of the principal amount thereof to
be redeemed.
(iii) During any Long-Term Interest Rate Period, the Bonds shall be
subject to optional redemption by the Issuer on the first day thereof, in whole or in part,
at a redemption price equal to 100% of the principal amount thereof to be redeemed, and
thereafter, during the periods specified below or, if approved by Bond Counsel as
provided in Section 205(e)(ii) hereof, during the periods specified in the notice of the
Issuer to the Paying Agent pursuant to Section 205(e)(ii)(A) hereof, in whole or in part at
any time, at the redemption prices (expressed as a percentage of principal amount)
hereinafter indicated or specified in the notice of the Issuer to the Paying Agent pursuant
to Section 205(e)(ii)(A) hereof~ plus accrued interest, if any, to the redemption date:
Length of Long-Term Interest Rate Period
(expressed in years) Redemption Prices
greater than 1 5 after 1 0 years at 1 00%
less than or equal to 15 and after 7 years at I 00%
greater than 10
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Length of Long-Term Interest Rate Period
(expressed in years) Redemption Prices
less than or equal to 10 and after 5 years at 100%
greater than 7
less than or equal to 7 and after 3 years at 1 00%
greater than 4
less than or equal to 4 after 2 years at 1 00%
(c) Mandatory Redemption of Bank Bonds. Bank Bonds are subject to mandatory
redemption prior to maturity in whole or in part on any date specified in the Liquidity Facility in
any manner directed by the Liquidity Facility for such Bank Bonds at a redemption price equal to
100% of the principal amount of the Bank Bonds to be redeemed plus accrued interest thereon to
the date fixed for redemption.
(d) Mandatory Sinking Fund Redemption. The Bonds are required to be redeemed to
thc extent of any Sinking Fund Requirement therefor on February 1 of each year in which there
is a Sinking Fund Requirement, at a redemption price equal to 100% of the principal amount of
the Bonds to be redeemed plus accrued interest thereon to the date fixed for redemption.
Section 302 Selection of Bonds to be Redeemcd. If less than all the Bonds are to be
redeemed, the particular Bonds to be redeemed shall be determined by the Issuer. If less than all
of the Bonds of anyone maturity are to be redeemed, the particular Bonds to be redcemed shall
be selected by the Paying Agent by lot in such manner as the Paying Agent in his or its discretion
may determine; provided, however, that any Bonds or portions thereof that have not been so
called for redemption shall be in Authorized Denominations, and, for so long as the Owner is a
Securities Depository Nominee, such selection shall be made by the Securities Depository. Bank
Bonds shall be redeemed before any other Bonds are redeemed.
For all purposes of this Exhibit 1, unless the context otherwise requires, all provisions
relating to the redemption of Bonds shall relate, in the case of any Bond redeemed or to be
redeemed only in part, to the portion of the principal of such Bond which has been or is to be
redeemed.
Section 303 Election to Redeem and Notice to Paving Agent: Redemption Notice.
(a) In case of any redemption pursuant to Section 301 hereof, the Issuer shall, at least
15 days prior to the date that notice of redemption is required to be given by the Paying Agent
(unless a shorter notice shall be satisfactory to the Paying Agent), notify the Paying Agent in
writing of such redemption date and of the principal amount of Bonds to be redeemed. A copy
of such notice to the Paying Agent shall be sent by first class mail, postage prepaid, to the Bank
by the Issuer at the same time it is sent to the Paying Agent.
(b) Not more than 45 nor less than 30 days before the redemption date of any Bonds,
whether such redemption be in whole or in part, the Issuer shall cause a notice of such
redemption, signed by the Paying Agent, to be mailed, first-class postage prepaid, to Moody's,
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213
Fitch and S&P, the Remarketing Agent and all Owners of Bonds to be redeemed in whole or in
part at their addresses appearing upon the registration books kept by the Paying Agent; providcd
that any such notice to any Securities Depository shall be given by facsimile followed by
certified or registered mail. Failure to mail any such notice to Moody's, Fitch and S&P or the
Remarketing Agent or any defect in the notice so mailed shall not affect the validity of the
proceedings for the redemption of the Bonds and failure to mail any such notice to any Owncr or
any defect in any notice so mailed shall not affect the validity of the proceedings for the
redemption of the Bonds of any other Owners to whom such notice was given as required
hereby. Each such notice shall set forth the date fixed for redemption, the redemption price to be
paid and, if less than all of the Bonds of any maturity then outstanding shall be called for
redemption, the distinctive numbers and letters, if any, of such Bonds to be redeemed and, in the
case of any Bond to be redeemed in part only, the portion of the principal amount thereof to be
redeemed. Each such notice shall also state that pursuant to Section 304 hereof interest on the
Bonds to be redeemed shall cease to accrue on the date fixed for redemption and that, if any
Bond is to be redeemed in part only, on or after the redemption date, upon sun-ender of such
Bond, a new Bond or Bonds in principal amount equal to the unredeemed portion of such Bond
will be issued.
(c) At least 35 days before the redemption date, the Paying Agent shall give such
notice by (i) registered or certified mail, postage prepaid, (ii) telephonically confirmed facsimile
transmission or (iii) overnight delivery service to the following securities depository (or its
successor) if then in existence at the address and transmission numbers given, or such other
address or transmission number as may have bcen delivered in writing to thc Paying Agent for
such purpose not later than the close of business on the day before such notice is given:
The Depository Trust Company
711 Stewart Avenue
Garden City, New York 11530
Facsimile transmission: (516) 227-4039
(516) 227-4190
(d) At least 35 days before the date of redemption, such notice shall be given by (i)
registered or certified mail, postage prepaid, or (ii) overnight delivery service to the Commission
and at least two of the then-existing national information services by thc Paying Agent.
Failure by the Paying Agent to give notice pursuant to paragraph (c) or (d) of this
Section 303 to anyone or more of the securities depositories or information scrviccs named
therein or any defect therein shall not affect the sufficiency ofthe proceedings for redemption.
Section 304 Effect of Calling for Redemption. On or before the date fixcd for
redemption, moneys shall be deposited with the Paying Agent sufficient to pay the redemption
price of the Bonds or portions thereof called for redemption as well as the interest accruing
thereon on the redemption date thereof.
On the date fixed for redemption, notice having been given in the manner and under the
conditions hereinabove provided, the Bonds or portions thereof called for redemption shall be
due and payable at the redemption price provided therefor, plus accrued interest to such date. If
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214
money sufficient to pay the redemption price of the Bonds or portions thereof to be redeemed,
plus accrued interest thereon to the date fixcd for redemption, are held by the Paying Agent in
trust for the Owners of Bonds or portions thereof to be redeemed, interest on the Bonds or
portions thereof called for redemption shall cease to accrue; such Bonds or pOltions thereof shall
cease to be entitled to any benefits or security under this Exhibit 1 or to be deemed outstanding;
and the Owners of such Bonds or portions thereof shall have no rights in respect thereof except
to receive payment of the redemption price thereof, plus accrued interest to the date of
redemption.
Section 305 Redemption of Portion of Bond. If a portion of an outstanding Bond shall
be selected for redemption, the Owner thereof or his attorney or legal representative shall present
and surrender such Bond to the Paying Agent for payment of the principal amount thereof so
called for redemption and the redemption premium, if any, on such principal amount, and the
Issuer shall cause to be executed and the Paying Agent shall authenticate and deliver to or upon
the order of such Owner or his legal representative, without charge therefor, for thc unredeemed
portion of the principal amount of the Bond so surrendered, a Bond or Bonds of the same form
and maturity and of any Authorized Denominations; provided, however, that if the Owner is a
Securities Depository Nominee, the Securities Depository, in its discretion, (a) may surrender
such Bond to the Paying Agent and request that the Issuer and the Paying Agent issue and
authenticate a new Bond for the unredeemed portion of the principal amount of the Bond so
surrendered or (b) shall make an appropriate notation on the Bond indicating the datcs and
amounts of such reduction in principal.
Section 306 Cancellation. Bonds so redeemed, presented and surrendered shall be
cancclled upon the surrender thereof.
ARTICLE IV.
REMARKETING AGENT, TENDER AGENT, AND PURCHASE
AND REMARKETING OF BONDS
Section 401 Remarketing Agent and Tender Agent.
(a) The initial Remarketing Agent for the Bonds shall be Wachovia Bank, National
Association. The Issuer shall appoint any successor Remarketing Agent for the Bonds, subject to
the conditions set forth in Section 402(a) hereof and the approval of the Bank and the
Commission. Each Remarketing Agent shall designate its Principal Office (other than the initial
Remarketing Agent whose Principal Office is listed in Section 601 hereof) and signify its
acceptance of the duties and obligations imposed upon it hereunder by a written instrument of
acceptance delivered to the Issuer and the Bank under which the Remarketing Agent will agree,
particularly, to keep such books and records as shall be consistent with prudent industry practice
and to make such books and records available for inspection by the Issuer and the Bank at all
reasonable times.
(b) The initial Tcnder Agent tor the Bonds shall be First-Citizens Bank & Trust
Company. The Issuer shall appoint any successor Tender Agent for the Bonds, subject to the
conditions set forth in Section 402(b) hereof. Each Tender Agent shall designate its Principal
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215
Office(s) for delivery of notices and delivery of Bonds (except for the Principal Office of the
initial Tender Agent which is listed in Section 601 hereof) and signify its acceptance of the
duties and obligations imposed upon it hereunder by a written instrument of acceptance delivered
to the Paying Agent, the Issuer and the Remarketing Agent. By acceptance of its appointment
hereunder, the Tender Agent agrees:
(i) to hold all Bonds delivered to it pursuant to Section 206 hereof, as
agent and bailee of, and in escrow for the benefit of, the respective Owners which shall
have so delivered such Bonds until moneys representing the purchase price of such
Bonds shall have been delivered to or for the account of or to the order of such Owners;
(ii) to establish and maintain a separate segregated trust fund
designated as "County of Ncw Hanover Variable Rate General Obligation Bonds, Series
2006 Bond Purchase Fund" (the "Bond Purchase Fund") until such time as it has been
discharged from its duties as Tender Agent hereunder;
(iii) to hold all moneys (without investment thereof) delivered to it
hereunder in the Bond Purchase Fund for the purchase of Bonds pursuant to Section 206
hereof, as agent and bailee of~ and in escrow for the benefit of, the person or entity which
shall have so delivered such moneys until the Bonds purchased with such moneys shall
have been delivered to or for the account of such person or entity;
(iv) to hold all moneys delivered to it by the Issuer for the purchase of
Bonds pursuant to Section 206 hereof, as agent and bailee of, and in escrow for the
benefit of, the Owners or former Owners who shall deliver Bonds to it for purchase until
the Bonds purchased with such moneys shall have been delivered to or for the account of
the Issuer;
(v) to hold all Bonds registered in the name of the new Owners thereof
which have been delivered to it by the Paying Agent for delivery to the Remarketing
Agent in accordance with the Tender Agreement;
(vi) to hold Bonds for the account of the Issuer as contemplated by
Section 405( c) hereof; and
(vii) to keep such books and records as shall be consistent with prudent
industry practice and to make such books and records available for inspection by the
Issuer, the Paying Agent, the Bank and the Remarketing Agent at all reasonable times.
The Issuer shall cause the necessary arrangements to be made and to be thereafter
continued to enable the Tender Agent to perform its duties and obligations described above.
Section 402 Qualifications of Remarketing Agent and Tender Agent; Resignation;
Removal.
(a) The Remarketing Agent shall be a financial institution member of the National
Association of Securities Dealers, having combined capital stock, surplus and undivided profits
of at least $75,000,000 and authorized by law to perform all the duties imposed upon it by this
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216
Exhibit 1. The Remarketing Agent may at any time resign and be discharged of the duties and
obligations created by this Exhibit 1 by giving notice to the Issuer, the Paying Agent, the Tender
Agent and the Bank. Such resignation shall take effect no earlier than the 45th day after the
receipt by the Issuer and the Paying Agent of the notice of resignation. The Remarketing Agent
may bc removed at any time on 45 days' prior written notice, by an instrument signed by the
Issuer and filed with the Remarketing Agent, the Paying Agent, the Tender Agent and the Bank.
(b) The Tender Agent shall be a bank with trust powers or a trust company duly
organized under the laws of the United States of America or any statc or territory thereof, and
having a combined capital stock, surplus and undivided profits of at least $100,000,000 and
authorized by law to perform all the duties imposed upon it by this Exhibit 1 and the Tender
Agreement. The Tender Agent may at any time resign and be discharged of the duties and
obligations created by this Exhibit 1 by giving at least 60 days' notice to the Paying Agent, the
Issuer, the Bank and the Remarketing Agent. The Tender Agent may be removed at any timc by
an instrument signed by the Issuer, filed with the Tender Agcnt, the Paying Agent, the Bank and
the Remarketing Agent. Such resignation or removal shall take effect on the day a successor
Tender Agent shall have bcen appointed by the Issuer and shall have accepted such appointment.
If no Tender Agent is appointed within 60 days after a notice of resignation, the resigning party
may appoint a successor or petition any court of competent jurisdiction to appoint a successor.
Upon the effective date of resignation or removal of the Tender Agent, the Tender Agent shall
deliver moneys held by it in such capacity and the Liquidity Facility to its successor.
Section 403 Notice of Bonds Delivered for Purchase; Purchase of Bonds.
(a) The Tender Agent shall determine timely and proper delivery of Bonds pursuant
to this Exhibit 1 and the proper endorsement of such Bonds. Such determination shall be binding
on the Owners of such Bonds, the Issuer, the Remarketing Agent and the Paying Agent, absent
manifest error. In accordance with the provisions of the Tender Agreement, the Tender Agent
shall give notice by telephone, telecopy or telex promptly confirmed by a written notice, to the
Paying Agent, the Remarketing Agent and the Bank specifying the principal amount of Bonds, if
any, as to which it has received notice of tender for purchase in accordance with Section 206(a)
hereof.
(b) Bonds required to be purchased in accordance with Section 206 hereof shall be
purchascd from the Owners thereof, on the date and at the purchase price at which such Bonds
are required to be purchased. Funds for the payment of such purchase pricc shall be derived
from the following sources in the order of priority indicated:
(i) proceeds of the sale of such Bonds remarketed to any person
pursuant to Section 404 hereof and furnished to the Tender Agent by the Remarketing
Agent for deposit into the Remarketing Account of the Bond Purchase Fund;
(ii) moneys fumished by the Bank to the Tender Agent pursuant to the
Liquidity Facility for deposit into the Liquidity Provider Account of the Bond Purchase
Fund; and
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( iii) moneys furnished by the Issuer to the Tcnder Agent pursuant to
Section 205(k) or 206(h) hereof for deposit into the Bond Purchase Fund. In the event
that a premium is required to be paid upon the purchase of any Bond as provided in
Section 206 hereof, and the Liquidity Facility then in effect with respect to the Bonds
shall not provide for the payment of a premium upon the purchase of Bonds, then moneys
derived from draws on the Liquidity Facility shall be applied solely to the payment of
purchase price equal to principal of and interest on the Bonds and not to the payment of
any such premium.
The Tender Agent may establish separate accounts or subaccounts within the Bond
Purchase Fund for such purposes as the Tender Agent may deem appropriate.
(c) (i) The Paying Agent shall authenticate a new Bond or Bonds in an aggregate
principal amount equal to the principal amount of Bonds purchased in accordance with Section
403(b) hereof, whether or not the Bonds so purchased are presented by the Owners thereof,
bearing a number or numbers not contemporaneously outstanding. Every Bond authenticated
and delivered as provided in this Section shall be entitled to all the benefits of the Resolution and
this Exhibit 1 equally and proportionately with any and all other Bonds duly issued hereunder.
(ii) In the event any Bonds purchased as provided in this Section 403
shall not be presented to the Tender Agent, the Tender Agent shall segregate and hold the
moneys for the purchase price of such Bonds in trust for the benefit of the former Owners
of such Bonds, who shall, except as provided in the following sentence, thereafter be
restricted exclusively to such moneys for the satisfaction of any claim for the purchase
price of such Bonds. Any money that is so set aside and that rcmains unclaimed by the
Owners for a period of five years after the date on which such Bonds have become
payable shall be treated as abandoned property pursuant to the provisions of Section
116B-53 of the General Statutes of North Carolina, and the Paying Agent shall report and
remit this property to the Escheat Fund established by, according to the requirements of,
Article 4 of Chapter 116B of the General Statutes of North Carolina, and thereafter the
Owners shall look only to the Escheat Fund for payment and then only to the extent of
the amounts so received, without any interest thereon, and the Paying Agent, the Tender
Agent, and the Issuer shall have no responsibility with respect to such money.
Section 404 Remarketing of Bonds; Notice ofInterest Rates.
(a) Upon notice of the tender for purchase of Bonds, the Remarketing Agent shall
offer for sale and use its best efforts to sell such Bonds, provided that after such sale a Liquidity
Facility shall be in effect. The Remarketing Agent shall not sell the Bonds to the County or any
affiliate of the County. All such sales will be at a price equal to the principal amount thercof
plus accmed interest thereon, if any, except for a sale at a Long-Term Interest Rate in which a
premium may apply as described in Section 205(e)(i) hereof. Any Bond which is tendered for
purchase pursuant to Section 206(a) hereof after such Bond has become subject to mandatory
tender for purchase pursuant to Section 206(c), 206( d) or 206( e) hereof shall be sold by the
Remarketing Agent only to a purchaser who agrees to (i) refrain from selling that Bond other
than under the terms of this Exhibit 1, or (ii) hold that Bond only to the date of mandatory
purchase.
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(b) The Remarketing Agent shall determine the rate of interest to be borne by the
Bonds during each Interest Rate Period and by each Bond during cach Bond Interest Term for
such Bond and the Bond Interest Terms for each Bond during each Short-Term Interest Rate
Period as provided in Section 205 hereof and shall furnish to the Issuer and the Paying Agent on
the Business Day of determination each rate of interest and Bond Interest Term so determined by
telex, telephone or telecopy, promptly confirmed in writing, or shall make such intormation
available to such parties by readily accessible electronic means.
(c) The Remarketing Agent shall give telephonic or telegraphic notice, promptly
confirmed by a written notice, to the Issuer, the Paying Agent, and the Tender Agent on each
date on which Bonds shall have been purchased pursuant to Section 403(b)(i) hereof, specifying
the principal amount of Bonds, if any, sold by it pursuant to Section 404(a) hereof along with a
list of such purchasers showing the names and Authorized Denominations in which such Bonds
shall be registered, and the addresses and social security or taxpayer identification numbers of
such purchasers.
Section 405 Delivery of Bonds.
(a) Bonds purchased with moneys described in clause (i) of Section 403(b) hereof
shall be made available by the Paying Agent to the Remarketing Agent for delivery to the
purchasers thereof against payment therefor in accordance with the Tender Agreement.
(b) Bonds purchased with moneys described in clausc (ii) of Section 403(b) hereof
shall be registered and delivered or held as provided in the Liquidity Facility. Bank Bonds shall
not be delivered to purchasers thereof until the Bank has provided vvTitten evidence that the
Liquidity Facility will be reinstated to cover such remarketed Bonds.
(c) Bonds purchased with moneys described in clause (iii) of Section 403(b) hereof
shall be held by the Tender Agent for the account of the Issuer.
(d) Bonds delivered as provided in this Section 405 shall be registered in the manner
directed by the recipient thereof or in the Tender Agreement.
Section 406 Deliverv of Proceeds of Sale. The proceeds of the sale by the
Remarketing Agent of any Bonds delivered to it by, or held by it for the account of~ thc Paying
Agent or the Issuer, or delivered to it by any other Owner, shall be turned over to the Tender
Agent as provided in the Tender Agreement.
Section 407 Draws on Liquidity Facilitv to Pay Purchase Price of Bonds. The Tender
Agent, on each day on which Bonds are required to be purchased pursuant to Section 206 hereof,
is hereby directed to make drawings under the Liquidity Facility by such times and in such
manner as shall be required in order for it to receive immediately available funds on such date to
pay the purchase price plus accrued interest, if any, of Bonds then payable from the Liquidity
Facility tendered for purchase or required to be purchased pursuant to the provisions of this
Exhibit I at the times, on the dates, to the extent, and in the manner herein and in the Tender
Agreement provided and to deposit the proceeds of such drawings or cause such proceeds to be
deposited in the Liquidity Provider Account of the Bond Purchase Fund pending application of
such moneys to the payment of the purchase price of the Bonds. Tn determining the amount of
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219
any such purchase price then due, the Tender Agent shall not take into consideration any
purchase price due on Bank Bonds or Bonds held by the Issuer and no drawings under the
Liquidity Facility shall be made or be used to pay the purchase price of any Bank Bonds or
Bonds held by the Issuer or any affiliate thereof. If moneys in the Liquidity Provider Account of
the Bond Purchase Fund are not used to purchase tendered Bonds on the day of the drawing on
the Liquidity Facility, such moneys shall be immediately retumcd to the Bank. Funds in the
Liquidity Provider Account of the Bond Purchase Fund shall be held uninvested.
ARTICLE V.
SUPPLEMENTAL RESOLUTIONS
Section 501 Supplemental Resolutions. The Issuer may, from time to time and at any
time, with the prior written consent of the provider of the Liquidity Facility, which will not be
unreasonably withheld, pass resolutions amending or supplementing this Exhibit 1:
(1) to cure any ambiguity, supply any omission, or cure or correct any defect
or inconsistent provision relating to the Bonds herein or in such Bonds;
(2) to insert such provisions clarifying matters or questions with respect to the
Bonds as are necessary or desirable and are not contrary to or inconsistent with such
Bonds and this Exhibit I theretofore in effect;
(3) to change the maximum interest rate that the Bonds may bear, provided
that such change is approved by the Commission; or
(4) to make changes necessary in connection with the dclivery of a Substitute
Liquidity Facility hereunder;
provided, however, that, in the judgment of the Issuer, such amendments or supplements do not
materially and adversely affect the Owners.
Each such resolution is conditioned upon delivery to the Issuer of a Favorable Opinion of
Bond Counsel.
ARTICLE VI.
MISCELLANEOUS PROVISIONS
Section 60 I Manner of Giving Notice. All notices, demands and requests to be given
to or made hereunder by the Issuer, the Commission or the Paying Agent shall be given or made
in writing and shall be deemed to be properly given or made if sent by United States certified or
registered mail, retum receipt requested, postage prepaid, addressed as follows:
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220
(a) As to the Issuer--
County of New Hanover
320 Chestnut Street
Wilmington, North Carolina 28401
Attention: Finance Director
(b) As to the Commission--
State Treasurer's Office
325 North Salisbury Street
Raleigh, North Carolina 27603-1385
Attention: Secretary
(c) As to the Paying Agent--
First-Citizens Bank & Trust Company
100 East Tryon Road, DAC 61
Raleigh, North Carolina 27603
Attention: Corporate Trust Department
(d) As to the Remarketing Agentn
Wachovia Bank, National Association
301 South College Street, TW9/NC0612
Charlotte, North Carolina 28202
Attention: Remarketing Desk
(e) As to the Tender Agent--
First-Citizens Bank & Trust Company
100 East Tryon Road, DAC 61
Raleigh, North Carolina 27603
Attention: Corporate Trust Department
(f) As to Moody's--
Moody's Investors Service
Public Finance Department
99 Church Street
New York, New York 10007
Attention: Public Finance Rating DesklVRDO
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221
(g) As to S&P--
Standard & Poor's Ratings Services,
a division of The McGraw-Hill Companies, Inc.
Public Finance Department
55 Water Street
New York, New York 10041
(h) As to the Bank--
Wachovia Bank, National Association
150 Fayetteville Street Mall, Suite 600
Raleigh, North Carolina 27602
Attention: N. Page Hornaday, Jr., Senior Vice President
Any notice required to be given by or to the Issuer shall be provided to the Bank so long
as a Liquidity Facility is in effect.
Any such notice, demand or request may also be transmitted to the appropriate
above-mentioned party by telegram or telephone and shall be deemed to be properly given or
made at the time of such transmission if, and only if, such transmission of notice shall be
confirmed in writing and sent as specified above.
Any of such addresses may be changed at any time upon written notice of such change
sent by United States registered mail, postage prepaid, to the other parties by the party effecting
the change.
Section 602 Substitute Mailing. If, because of the temporary or permanent suspension
of postal service, the Issuer or the Paying Agent shall be unable to mail any notice required to be
given by the provisions of this Exhibit 1, the Issuer or the Paying Agent shall give notice in such
other manner as in the judgment of the Issuer or the Paying Agent shall most effectively
approximate mailing, and the giving of notice in such manner shall for all purposes of this
Exhibit 1 be deemed to be in compliance with the requirement for the mailing thereof.
Section 603 Headings. Any heading preceding the text of thc several articles hereof~
and any table of contents or marginal notes appended to copies hereof, shall be solely for
convenience of reference and shall not constitute a part of this Exhibit 1, nor shall they affect its
meaning, construction or effect.
Section 604 Further Authority. The County Manager, the Finance Director, the
County Attorney and the Clerk to the Board and such other officers or employees of the Issuer as
are designated by any of them are hereby authorized to do all acts and things required of them by
or in connection with this Exhibit I, the Remarketing Agreement, the Standby Agreement and all
other agreements or documents entered into or executed by the Issuer in connection with the
issuance of the Bonds (collectively the "Issuer Documents") for the full, punctual and complete
performance of all of the terms, covenants and agreements contained in the Bonds and the Issuer
Documents.
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- --_.~._--~---_._'--
222
Section 605 Days Other than Business Days. Any action required to be taken
hereunder on a day other than a Business Day shall be deemed to be timely if such action is
taken on the next succeeding Business Day.
Section 606 Notice to Moody's and S&P. Moody's and S&P shall receive notice from
thc Paying Agent of the following items: (a) any change of the Paying Agent, Tendcr Agent or
Remarketing Agent, (b) any supplement or amendment to the Resolution, this Resolution, the
Liquidity Facility, the Remarketing Agreement, the Tender Agreement or the Bonds, (c) any
expiration, substitution, termination or renewal of the Liquidity Facility, (d) any conversion from
one Interest Rate Period to another and (e) any mandatory tender, redemption or defcasance of
Bonds.
Section 607 References to and Rights of Bank. At such time as the Liquidity Facility
shall have terminated or expired and not been replaced by a Substitute Liquidity Facility, all
references to the Bank and the Liquidity Facility shall have no applicability. If the Bank shall be
in default under the Liquidity Facility the rights of the Bank hereunder shall be suspended until
such time as the Bank ceases to be in default thereunder.
Section 608 Governing Law. This Exhibit 1 shall be construed and governed in
accordance with the laws of the State.
Section 609 Severability of Invalid Provisions. In casc anyone or more of the
provisions contained in this Exhibit 1 or in the Bonds shall be held to be invalid, illegal or
unenforceable 1ll any respect and for any rcason, then such invalidity, illegality or
unenforceability shall not affect any other provision of this Exhibit 1, and this Exhibit I shall be
construed as if such invalid or illegal or unenforceable provision had never been contained
herein.
Section 610 Continuing Disclosure Obligation. During any Long-Term Interest Rate
Period and while the Bonds are otherwise subject to Rule 15c-12 issued under the Securities
Exchange Act of 1934, as amended ("Rule 15c2-12"), the Issuer hereby undertakes, for the
benefit of the beneficial owners of the Bonds, to provide:
(a) by not later than seven months from the end of each fiscal year of the
Issuer, to each nationally recognized municipal securities information repository
("NRMSIR") and to the state information depository for the State of North
Carolina ("SID"), if any, audited financial statements of the Issuer for such fiscal
year, if available, prepared in accordance with Section 159-34 of the General
Statutes of North Carolina, as it may be amended from time to time, or any
successor statute, or, if such audited financial statements of the Issuer are not
available by seven months from the end of such fiscal year, unaudited financial
statements of the Issuer for such fiscal year to be replaced subsequently by
audited financial statcments of the Issuer to be delivered within 15 days after such
audited financial statements become available for distribution;
(b) by not later than seven months from thc end of each fiscal year of thc
Issucr, to each NRMSIR, and to the SID, if any, (i) the financial and statistical
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223
data as of a date not earlier than the end of thc prcceding fiscal year for thc type of
information included under heading "The County - Debt Information and - Tax
Information" in the Official Statement relating to the Bonds (excluding any
information on overlapping or underlying units) and (ii) the combined budget of
the Issuer for the current fiscal year, to the extent such items arc not included in
the financial statements referred to in (a) above;
(c) in a timely maimer, to each NRMSIR or to the Municipal Securities
Rulemaking Board ("MSRB"), and to the SID, if any, notice of any of the
following events with respect to the Bonds, ifmaterial:
(1) principal and interest payment delinquencies;
(2) non-payment related default;
(3) unscheduled draws on debt service reserves reflecting financial
difficulties;
(4) unscheduled draws on any credit enhancements reflecting financial
difficulties;
(5) substitution of any credit or liquidity providers, or their failure to
perform;
(6) adverse tax opinions or events affecting the tax-exempt status of
the Bonds;
(7) modification to the rights of the beneficial owncrs ofthe Bonds;
(8) bond calls;
(9) defeasances;
(10) release, substitution or sale of any property securing repayment of
the Bonds;
(11) rating changes; and
(d) in a timely manner, to each NRMSIR or to the MSRB, and to the SID, if
any, notice of a failurc of the Issuer to provide rcquired annual financial
information described in (a) or (b) above on or before the date specified.
To the extent permitted by the U. S. Securities and Exchange Commission, the obligation
to file any of the above documents with NRMSIRs and STDs may be discharged by transmitting
those documents electronically to www.DisclosureUSA.org.
If the Issuer fails to comply with the undertaking described above, any beneficial owner
of the Bonds may take action to protect and enforce the rights of all beneficial owners with
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224
respect to such undertaking, including an action for specific performance; provided, however,
that failure to comply with such undertaking shall not be an event of default and shall not rcsult
in any acceleration of payment of the Bonds. All actions shall be instituted, had and maintained
in the manner provided in this paragraph for the benefit of all beneficial o\'mers of the Bonds.
The Issuer reserves the right to modify from time to time the information to be provided
to the extent necessary or appropriate in the judgment of the Issuer, provided that:
(2) any such modification may only be made in connection with a change in
circumstances that arises from a change in legal requirements, change in law, or change
in the identify, nature, or status of the Issuer;
(3) the information to be provided, as modified, would have complied with
the requirements of Rule 15c2-I2 as of the date of the Official Statement relating to the
Bonds, after taking into account any amendments or interpretations of Rule I5c2-12, as
well as any changes in circumstances; and
(4) any such modification does not materially impair the interest of the
beneficial owners, as determined either by parties unaffiliated with the Issuer (such as
bond counsel), or by the approving vote of the registered owners of a majority in
principal amount of the Bonds pursuant to the terms of this bond resolution, as it may be
amended from time to time, at the time of the amendment.
Any annual financial information containing modified operating data or financial
information shall explain, in narrative form, the reasons for the modification and the impact of
the change in the type of operating data or financial information being provided.
The provisions of this Section shall terminate upon payment, or provision having been
made for payment in a manner consistent with Rule I 5c2- I 2, in full of the principal of and
interest on all of the Bonds.
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225
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226
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
REQU EST FOR BOARD ACTION
Meeting Date: 01/09/06
Additional Item #: 3 Estimated Time: Page Number:
Department: County Manager Presenter: Patricia Melvin
Contact: Patricia Melvin
Item Does Not Require Review
SUBJECT:
Cleanup of County Roadways
BRIEF SUMMARY:
Commissioner Kopp requested an update on the cleanup of County roadways.
RECOMMENDED MOTION AND REQUESTED ACTIONS:
FUNDING SOURCE:
Will above action result in: Number of Positions:
Explanation:
ATTACHMENTS:
Memo
ITEM DOES NOT REQUIRE REVIEW
COUNTY MANAGER'S COMMENTS AND RECOMMENDATIONS:
COMMISSIONERS' ACTIONS/COMMENTS:
Heard update.
227
AdJ,'1, '7Jr1tt/ !.if
~
NEW HANOVER COUNTY
OFFICE OF THE COUNTY MANAGER
320 Chestnut Street, Suite 502
Wilmington, NC 28401
www.nhcgov.com
New Hanover County
NOR T II .:. CAR 0 L I N A
, I
Memo
DATE: January 9, 2006
TO: Board of County Commissioners
Bruce Shell, County Manager
Dave Weaver, Assistant County Manager
FROM: Patricia A. Melvin, Assistant County Manager 91~t~a..Jtl "~
SUBJECT: Cleanup of County Roadways
Per request of the Board of Commissioners, the following actions have been taken regarding the eleanup
of County roadways.
I. The following roadways were to be cleaned by the Dept. of Corrections Inmate Work Program hy
the end of the day on January 7, 2006.
a. 1-40
b. Eastwood Road
c. Military Cutoff Road
d. Highway 42lN
e. Oleander Drive between Bradley Creek and Military Cutoff
These roads were rep0l1ed hy either members of the Board of Commissioners or City of
Wilmington staff, as in need of cleaning.
2. Contact has been made with the Community Services Program. They are willing to enter a
contractual arrangement for the use of individuals sentenced to provide community services, to
pick up trash along County roadways. The County will be required to pay the cost of hiring a
supervisor for the program at $10 - 12 per hour.
3. Contact has been made with Mr. Ernest Fullwood, Chief Superior Court Judge and Mr. 1.
Corpening, Chief District Court Judge. Both Judges expressed their willingness to support the
County's efforts. The two judges will meet with staff ofthe Community Services Program to
discuss how best to implement such a program. After making such determinations, the Judges
will contact me to schedule a meeting to discuss implementation.
-
----------
Patricia A. Melvin 9] 0-34] - 7184
Assistant County Manager Fax: 9]0-34]-4027
----~~-- --"'.-.--
228
Please let me know if you have questions about this matter. I will notify you immediately concerning the
date of the meeting with Judges Fullwood and Corpening.
Ipam
---
Patricia A. Melvin 910-341- 7184
Assistant County Manager Fax: 910-341-4027
229
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230
NEW HANOVER COUNTY BOARD OF COMMISSIONERS
REQU EST FOR BOARD ACTION
Meeting Date: 01/09/06
Additional Item #: 4 Estimated Time: Page Number:
Department: County Manager Presenter: Bruce Shell, Greg Thompson
Contact: Dave Weaver, Greg Thompson
Item Does Not Require Review
SUBJECT:
Status of Remaining Sewer Collection Reports
BRIEF SUMMARY:
Commissioner Kopp, Chairman of the Water and Sewer District, requested information on remaining sewer collection
projects.
RECOMMENDED MOTION AND REQUESTED ACTIONS:
FUNDING SOURCE:
Will above action result in: Number of Positions:
Explanation:
ATTACHMENTS:
Memo and map.
ITEM DOES NOT REQUIRE REVIEW
COUNTY MANAGER'S COMMENTS AND RECOMMENDATIONS:
COMMISSIONERS' ACTIONS/COMMENTS:
Heard update.
231
NEW HANOVER COUNTY
COUNTY MANAGER'S
New HanQ~t~r County
NOI\'i;'H+CAROLSNA
January 9,2006
TO: Bruce Shell - County Manager
FROM: Greg Thompson - County Engineer ~ 'T
Dave Weaver - Assistant County Manager ~
RE: Status of remaining sewer collection projects
In response to the request ofMr. Kopp, Chairman of the Water and Sewer District, we offer
the following information on remaining sewer collection projects:
Kings Grant - Complete with exception ofre-bid work for Section 3B, which is scheduled
for completion by April 2006.
Brookfield/Briarwood - Complete with exception of paving.
Middle Sound _ Sewer construction work is complete with exception of paving and with re-
bid work for Anaca Point and a portion of Middle Sound Road. Sewer work is complete but
we are waiting for a decision on our variance requests for the Middle Sound roads as
gcnerally shown on the attached map.
The variance requests were made on December 16,2005. Although the State has no statutory
requirement to render a decision within a certain time frame, they have stated in the past that
they would attempt to do so within 30-60 days, and, in the past, have met this expectation.
We will be glad to set up a meeting with State officials, if desired. We suggest that we begin
with Ed Beck, the supervising Engineer from the Wilmington region ofthe Division of Water Quality.
Attachment - Map
. -
232
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