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NOVEMBER 8, 1994 MINUTESo£ %rirgi ia [3 ac h "WORLD'S LARGEST RESORT CITY" CITY COUNCIL MAYOR MEYERA E. OBERNDORF, At-Large VICE MAYOR WILLIAM D SESSOMS, JR., At-Large JOHN A. BAUM, Blackwater Borough LINWOOD O. BRANCft, Ill, Vtrginia Beach Borough ROBERT K. DEAN, Princess Anne Borough W. W. HARRISON. JR.. Lynnhauen Borough BARBARA M. HENLEY, Pungo Borough LOUIS R. JONES, Bayside Borough JOHN D. MOSS, At-Large NANCY K. PARKER, At-Large LOUISA M. STRAYHORN, Kemprville Borough ]AMES K. SPORE. City Manager LESLIE L. LILLEY, City Attorney RUTH HODGES SMITH, CMC / AAE, City Clerk CITY COUNCIL AGENDA 281 CITY HALL BUILDING MUNICIPAL CENTER VIRGINIA BEACH. VIRGINIA 23456-9005 18041 427-4303 NOVEMBER 8, 1994 CITY MANAGER'S BRIEFINGS: - Council Chamber - Ao SOUTHEASTERN EXPRESSWAY Chris Lloyd, Maguire Group, Inc. OPERATING BUDGET: Five Year Forecast E. Dean Block, Director, Management and Budget 10:30 AM I1. INFORMAL SESSION Ao B. C. D. CALL TO ORDER - Mayor Meyera E. Oberndorf ROLL CALL OF CITY COUNCIL CITY COUNCIL CONCERNS RECESS TO EXECUTIVE SESSION - Council Chamber - 12:00 PM II1. FORMAL SESSION A. CALL TO ORDER - Mayor Meyera E. Oberndorf - Council Chamber - 2:00 PM B. INVOCATION: Reverend Richard Keever Bayside Presbyterian Church C. PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA D. ELECTRONIC ROLL CALL OF CITY COUNCIL E. CERTIFICATION OF EXECUTIVE SESSION MINUTES 1. INFORMAL & FORMAL SESSIONS November 1, 1994 G. MAYOR'S PRESENTATION RESOLUTION -AMERICAN EDUCATION WEEK November 13 - 19, 1994 H. CONSENT AGENDA All matters listed under the Consent Agenda are considered in the ordinary course of business by City Council and will be enacted by one motion in the form listed. If an item is removed from the Consent Agenda, it will be discussed and voted upon separately. Finalization of $1,585,000.00 loan from the Virginia Revolving Loan Fund re sanitary sewer projects at Grayson/Bonney Road (CIP 6-006) and Dozier's Bridge (CIP 6-008): ao Third Supplemental Resolution to SUPPLEMENT and AMEND the Resolution adopted February 11, 1992, entitled "Master Water and Sewer Revenue Bond Resolution Providing for the Issuance from Time to Time of One or More Series of Water and Sewer System Revenue Bonds of the City of Virginia Beach", as previously supplemented; to provide for the issuance and sale of a taxable Water and Sewer System Revenue Bond, Series of 1994; and, providing for the form, details and payment thereof and the financing of the cost of improvements to the City's water and sanitary sewer facilities. Ordinance to TRANSFER funds between Water and Sewer Capital Projects to allow closing of a loan from the Virginia Revolving Loan Fund. Ordinance to authorize acquisition of property in fee simple for drainage improvements at Rosemont Road/Windsor Woods (CIP 2-115); and, acquisition of temporary and permanent easements of right-of-way, either by agreement or condemnation (LYNNHAVEN BOROUGH). Ordinance to authorize the City Manager to execute an Exchange of Land with Williams Holding Corporation to facilitate the construction of a public-use golf course on City- owned property on Seaboard Road. Ordinance to authorize a temporary encroachment into a portion of the right-of-way of Indian River Road to the Christian Broadcasting Network, Inc., re maintaining a commercial sign (KEMPSVILLE BOROUGH). 5. Ordinance authorizing tax refunds in the amount of $3,063.02. PUBLIC HEARING 1. PLANNING ao Application of JOHN W. and ELLEN M. BLUMLING for a Variance to Section 4.4(b) of the Subdivision Ordinance which requires all lots created by subdivision meet all requirements of the City Zoning Ordinance at 2276 Greenwell Road (BAYSlDE BOROUGH). Recommendation: APPROVAL Application of B. M. STANTON, JR. for a Conditional Use Permit for a car wash on the Southwest side of Indian River Road, 300 feet more or less Southeast of Kempsville Road (5217 Indian River Road), containing 33,802.56 square feet (KEMPSVILLE BOROUGH). Recommendation: APPROVAL Application of SOUTHLAND CORPORATION for a Conditional Use permit for an automotive service station in conjunction with a convenience store at the Northwest corner of Independence Boulevard and Edwin Drive (496 Independence Boulevard), containing 1.061 acres (KEMPSVILLE BOROUGH). Recommendation: APPROVAL Ordinance to AMEND and REORDAIN Section 701 of the City Zoning Ordinance re use regulations for communication towers in the H-1 Hotel District. Recommendation: APPROVAL Application of VIRGINIA CELLULAR, LTD. for a Conditional Use Permit for a communication tower at the Southeast intersection of Atlantic Avenue and 57th Street, containing 3.2 acres (VIRGINIA BEACH BOROUGH). Recommendation: APPROVAL Jo UNFINISHED BUSINESS Resolution to request the Governor and the General Assembly to ensure the continued funding of improvements to, maintenance and policing of Route 44 following the removal of tolls. 2. Council Questions re Storm Water Management Presentation NEW BUSINESS 1. COUNCIL SPONSOREDITEM: Resolution to invite the Institute in Basic Life Principles to establish an Advanced Training Institute for Troubled Youths and their Families in the City of Virginia Beach or elsewhere in the Hampton Roads area. L. ADJOURNMENT If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 427-4303 Hearing impaired, call: TDD only 427-4305 (TDD - Telephonic Device for the Deaf) 11/03/94cmd AGENDA\I 1-08-94.PLN Item III-IC3. NEW BUSINESS ITEM # 38564 ADD-ON Upon motion by Vice Mayor Sessoms, seconded by Councilman Moss, City Council APPROVED THE FOLLOWING SCHEDULE: Regular City Council Sessions December 6, 1994 December 13, 1994 AND, CANCELED: December 27, 1994 Voting: 11-0 Council Members Voting Aye: John A. Baum, Linwood O. Branch, III, Robert IC Dean, William W. Harrison, Jr., Barbara M. Henley, Louis t~ Jones, John D. Moss, Mayor Meyera E. Oberndo~ Nancy IC Parker, Vice Mayor William D. Sessoms, Jr., and Louisa 34. Strayhorn Council Members Voting Nay: None Council Members Absent: None November 8, 1994 - 37 - Item III-L. 1. ADJOURNMENT ITEM tt 38565 Mayor Oberndorf DECLARED the City Council Meeting ADJOURNED at 5:36 P.M. Hooks, CMC Chief Deputy City Clerk Ruth Hodges Smith, CMC/AAE City Clerk Meyera E. Oberndorf Mayor City of Virginia Beach Virginia November 8, 1994 MINUTES VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia November 8, 1994 Mayor Meyera E. Oberndorf called to order the CITY MANAGER'S BRIEFING to the VIRGINIA BEACH CITY COUNCIL in the Council Chamber, City Hall Building, on Tuesday, November 8, 1994, at 10:30 A.M. Council Members Present: John A. Baum, Linwood O. Branch, III, Robert K. Dean, William W. Harrison, Jr., Louis IL Jones, John D. Moss, Mayor Meyera E. Oberndorf and Nancy K. Parker Council Members Absent: Vice Mayor William D. Sessoms [ENTERED: 10:55 A.M.] Barbara M. Henley [ENTERED: 12:05 A.M.] Louisa M. Strayhorn [ENTERED: 10:45 A.M.] Vice Mayor Sessorns, being a Corporate Officer of Central Fidelity Bank, disclosed there were no matters on the agenda in which he has a "personal interest", as defined in the Act, either individually or in his capacity as an officer of Central Fidelity Bank. The Vice Mayor regularly makes this Disclosure as he may or may not know of the Bank's interest in any application that may come before City Council. Vice Mayor Sessoms' letter of September 27, 1994, is hereby made a part of the record -2- CITY MANAGER'S BRIEFING SOUTHEASTERN EXPRESSWAY 10:30 A.M. ITEM # 38535 Robert J. Scott, Director of Planning, advised the Southeastern Expressway was established as one of the City's top priorities. In order to accommodate the City's transportation needs, the strategy of expanding existing arterials has significant limits i.e. environmental constraints, impacts of displacement. The Southeastern Expressway is a major step toward a multi-modal approach to dealing with transportation needs. The Expressway includes a light rail corridor and one for HOg' travel. This project is consistent with the Comprehensive Plan and Environmental Protection initiatives. The following four agencies have concurred and signed the Statement of Purpose and Need: Environmental Protection Agency, U.S. Fish and Wildlife Service, the Corps of Engineers and the Natural Marine and Fisheries Service. Arthur Collins, Executive Director - Hampton Roads Planning District Commission, advised the Southeastern Expressway is an integral part of Chesapeake's circulation system and effects the Cities of Norfolk, Portsmouth and Suffolk. The Oak Grove Connector is an element of the Southeastern Expressway. The Expressway provides another option for getting to Virginia Beach. Chris M. Lloyd, Vice President - Maguire Group, Inc., advised, for the first time in Virginia, the aforementioned Federal Resource Agencies have been brought together. Therefore, the process has been combined. The Location Public Hearing next week will not just be sponsored by the Virginia Department of Transportation, but also by the U.S. Army Corps of Engineers, as part of the public interest review for the permit process. It is envisioned with this process, not only will there be an acceptable environmental document addressing the impacts and mitigation associated, but also a permit will be in hand. Two other major legislative initiatives are the Clean Air Amendments of 1990 and the Inner Modal Surface Transportation Efficiency Act of 1991 (ISTEA). Both the Clean Air donendments and ISTEA have changed the playing fieM for major projects. Mr. Lloyd displayed the Typical Transportation Development Sections (footprint) of the Southeastern Expressway. There is a mitigation package, which should address and minimize impacts. Direct impacts to wetlands consume anywhere from 270 to 350 acres. There will be mitigation for direct impacts to wetlands, and there will be mitigation on site within the same drainage shed. There will also be mitigation associated with the relocation of residences and cultural resource impacts. There will be an assessment and an inventory of secondary and cumulative impacts associated with natural resources for the Southeastern Expressway. A habitat evaluation program will be utilized to assess functions and values of habitat throughout the corridor. Seventeen indicated species were evaluated throughout Southeastern Virginia to determine the nature of the habitat that would be disturbed by the Southeastern Expressway alternatives. These assessments will be utilized to assist in the evaluation and development of a mitigation site. VDOT will also be involved in consultation with U.S. Fish and Wildlife Service for impacts. Probably the most significant elements of the environmental package will be a Preservation and Conservation Component for Stumpy Lake and adjacent environs. Some method of enhanced coordination between Virginia Beach, Chesapeake and the Resource Agencies will be reviewed Ken Wilkinson, Environmental Planner - Virginia Department of Transportation, referenced the Southeastern Expressway Project Schedule: November 14, 1994 November 21, 1994 December 2, 1994 December 1994 January 1995 March/April 1995 Mid 1995 Early winter 1995 Public Hearing The Radisson - Virginia Beach Public Hearing Holiday Inn -Chesapeake Deadline for Comments A transcript of the Public Hearing (both written and oral) will be prepared for the Commonwealth Transportation Board. Cities (Virginia Beach and Chesapeake) shall advise I/DOT of their alignment selection by Resolution. Federal/State Agencies Review Present to Commonwealth Transportation Board cotnments from Public Hearing, the Environmental document and the Resolutions from the City Councils. Develop final Env'£onmental Impact Statement and Mitigation Plan for implementation of the project. Federal Highway ldministration develops a record of decision. This will be adv~tised in the Federal Register. November 8, 1994 -3- CITY MANAGER'S BRIEFING SOUTHEASTERN EXPRESSWAY ITEM # 38535 (Continued) After completion of the above, the Corps of Engineers Permit will be finalized. After which, final design and acquisition of right-of-way will be necressary. SOUTHEASTERN EXPRESSWAY PURPOSE & NEED STATEMENT Regional Population growth Land Use Planning Economic Development Natural Environment Preservation Transportation Deficiencies Safety and Emergency Evaluation IMPACTS BY CANDIDATE BUILD ALTERNATIVE Candidate Build Wetlands Impacts Structure Displacements Cost Alternative (Hectares) (Acres) (Families) (Businesses)(Non-Profit) (Million $) South 112 2 78 177 6 3 354 North 123 303 703 13 4 50 7 North/K 125 308 625 13 4 50 7 Stumpy South 144 355 244 7 3 395 Stumpy North 141 349 332 7 3 394 EXAMPLES OF ALTERNATIVES FOR THE MAJOR INVESTMENT STUDY Light Rail Transit Busways Bikeways Upgrading of Existing Roadways New Highways Expanded Public Transit Travel Demand Strategies HOI~ Facilities Ridesharing Congestion Management November 8, 1994 -4- CITY MANAGER'S BRIEFING SOUTHEASTERN EXPRESSWAY ITEM # 38535 (Continued) Concerning the South alternative comprising $354-MILLION with a length of approximately 19.8 miles, it would entail approximately $90-100-MILLION to provide HOV Lanes. Mr. Lloyd advised the Hampton Roads Crossing Study, which should be available in the Spring of next year will be utilized as a tool to assist in evaluating the appropriate time for the HOV to come on line on the Southeastern Expressway. Mr. Lloyd advised the listing of all landowners, which would be impacted by the Southeastern Expressway is available in the Department of Planning.. November 8, 1994 -5- CITY MANAGER'S BRIEFING OPERATING BUDGET FIVE-YEAR FORECAST FY 1996 - FY 2000 11:30 A.M. ITEM # 38536 E. Dean Block, Director - Management and Budget, detailed information relative the Five-Year Forecast FY 1996 - FY 2000, Financial Conditions and Trends. Mr. Block advised the International City Manager's Association (ICMA) developed a package of indicators to establish and evaluate the trends affecting financial conditions. What is Financial Condition ? Ability to withstand local and regional economic disruptions. Ability to maintain service levels and capital base. Ability to meet the demands of natural growth, decline and change; ability to help shape future. Mr. Block, with the utilization of charts, depicted eight (8) indicators summarizing the issues. Percent of Population Receiving Food Stamps and ADC Per Capita Income Comparison Number of Jobs (Excludes Military & Proprietors) Age of Housing Stock Revenues Per Capita (Constant Dollars) Real Estate and Personal Property (Tax Revenues in Constant Dollars) Operating Budget History (Exclusive of Utilities) Undesignated Fund Balance (As of June 30) Until 1988, the Per Capita Income in Virginia Beach exceeded that of the Region, as well as the State. After 1988, the State of Virginia passed the City in per capita income. As an overall figure, the City tends to out perform the region. Concerning the percentage of population receiving Food Stamps and Aid to Dependent Children, these dependencies are rising faster than growth of population. Citizens receiving food stamps have increased from 2% to over 6% of the population over the past decade. In the case of ADC, this percentage has doubled. The economy continues to generate jobs and has been consistently doing so with the exception of the 1990/1991 recession time period. In terms of job growth, the City tends to out perform the region. There are issues related to quality, which deserve additional research. Although, it does appear, the City of Virginia Beach does generate a reasonable number of high skilled jobs in technical areas and in some of the financial service areas, but there is a substantial portion of the economy dependent upon the service sector and relatively lower skilled jobs. The Age of Housing Stock reflects a substantial proportion over 15 and 25 years old. Housing stock is an important causal factor in the long term health of the community. Revenues per Capita in Constant Dollars consists basically of all the revenues utilized by the City except utilities. Between 1989 and 1994, there has been only a slight increase in revenues per capita after inflation. The Real Estate and Personal Property Chart indicates, over the last several years, the City's real property tax rate has grown at rates less than inflation. The real property tax accounts for about 1/2 of the total of local taxes. Personal property, in addition to the real proeprty, accounts for 5/8 of the total of local taxes. The Operating Budget History chart reflects the three aspects of the Budget: City Operations, School Operations and CIP/Debt Service. The Undesignated Fund Balance indicates a positive effect concerning the City Council's policies initiated several years ago. November 8, 1994 -6- CITY MANAGER'S BRIEFING OPERATING BUDGET FIVE-YEAR FORECAST FY 1996 - FY 2000 ITEM # 38536 (Continued) FORECASTS Key Assumptions & Structure Lake Gaston - 1998 Oceana remains open Moderate inflation Salary adjustments City - Modest allowance for growth. Schools - Student growth 1.6%~year) + allowance for mandates. Growth in local tax revenues shared on equal percentage basis after Debt Service. 5.2 cents tax increase 7/1/95 for School C.I.P. as previously identified. All budgeted funds included. FORECAST OF TOTAL REVENUES AND EXPENDITURES 1995/1996: Appears to be able to sustain programs. 1996/1997: FY 199/2000 - Deficit grows to $17.9-MILLION. Enterprise, Utility and Debt Service funding are in balance throughout forecast. FORECAST OF CITY OPERATIONS FY 1995/1996, 1996/1997 in balance. Deficits less than 1% in out- years. Recognizes some growth in employment to sustain service. Based on current. SCHOOL OPERATIONS Considerable communication/correspondence FY 1995/1996 in balance. Deficit grows from $4.3-MILLION to $15.3- MILLION in FY 1999/2000. 1.6% annual pupil growth. Same salary/inflation assumption as City. Linked to approved 1994/1995 C.I.P. November 8, 1994 -7- CITY MANAGER'S BRIEFING OPERATING BUDGET FIVE-YEAR FORECAST FY 1996 - FY 2000 ITEM # 38536 (Continued} THE FUTURE Financial Condition ~ility to Withstand Local Regional Economic Disruptions: Fund Balance Policy Other Reserves Positive Position & Trend Ability to Maintain Service Levels & Capital Base: FY 1995/1996; 1996/1997 & beyond. Qualified "Yes". Current level of effort in some programs. School level of service has been increasing. Student growth is key Ability to Meet Change, Shape Future: Little room for responses Emerging issues -- City scope & role. C.I.P. Revenues. An indicator concerning cost per pupil will be furnished. Information will be provided relative the forecast impact of salary increases. November 8, 1994 -8- ITEM # $8557 Mayor Meyera E. Oberndorf called to order the INFORMAL SESSION of the VIRGINIA BEACH CITY COUNCIL in the Council Chamber, City Hall Building, on Tuesday, November 8, 1994, at 12:45 P.M. Council Members Present: John A. Baurn, Linwood O. Branch, III, Robert tC Dean, William W.. Harrison, Jr., Barbara M. Henley, Louis R, Jones, John D. Moss, Mayor Meyera E. Oberndoff, Nancy K Parker, V~ce Mayor William D. Sessoms, Jr. and Louisa M. Strayhorn Council Members Absent: None November 8, 1994 -9- CITY COUNCIL CONCERNS 12:40 P.M. ITEM # 38538 Vice Mayor Sessoms advised he will add under NEW BUSINESS the scheduling of the December City Council Sessions. ITEM # 38539 Mayor Oberndorf referenced discussion, under NEW BUSINESS, of the formation of a group of thirteen Virginia cities called the Urban Partnership. ITEM #37540 Mayor Oberndorf will also discuss under NEW BUSINESS, the position of the State Department of Conversation and Recreation concerning restricted access to False Cape State Park. November 8, 1994 - 10 - ITEM # 38541 Mayor Meyera E. Oberndorf entertained a motion to permit City Council to conduct its EXECUTIVE SESSION, pursuant to Section 2.1-344, Code of Virginia, as amended, for the following purpose: PUBLICLY-HELD PROPERTY: Discussion or consideration of the condition, acquisition, or use of real property for public purpose, or of the disposition of publicly-held property, or of plans for the future of an institution which could affect the value of property owned or desirable for ownership by such institution pursuant to Section 2.1-344(A)(3). To-Wit: Acquisition of Property - Princess Anne Borough Seatack Community Center Amphitheater Upon motion by Vice Mayor Sessorns, seconded by Council Lady Strayhorn, City Council voted to proceed into EXECUTIVE SESSION. Voting: 11-0 Council Members Voting Aye: John A. Baum, Linwood O. Branch, III, Robert lC. Dean, William W.. Harrison, Jr., Barbara M. Henley, Louis R. Jones, John D. Moss, Mayor Meyera E. Oberndo~ Nancy IC Parker, Vice Mayor William D. Sessoms, Jr. and Louisa M. Strayhorn Council Members Voting Nay: None Council Members Absent: None November 8, 1994 - 11 - FORMAL SESION VIRGINIA BEACH CITY COUNCIL November 8, 1994 2:00 P.M. Mayor Meyera E. Oberndorf called to order the FORMAL SESSION of the VIRGINIA BEACH CITY COUNCIL in the Council Chamber, City Hall Building, on Tuesday, November 8, 1994, at 2:00 P.M. Council Members Present: John A. Baum, Linwood O. Branch, III, Robert K Dean, William W. Harrison, Jr., Barbara 34. Henley, Louis R. Jones, John D. Moss, Mayor Meyera E. Oberndorf, Nancy K. Parker, Vice Mayor William D. Sessorns, Jr. and Louisa M. Strayhorn Council Members Absent: None INVOCATION: Reverend Richard Keever Bayside Presbyterian Church PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA November 8, 1994 - 12 - Item III-E. 1. CERTIFICATION OF EXECUTIVE SESSION ITEM # 38542 Upon motion by Councilman Jones, seconded by Councilman Moss, City Council CERTIFIED THE EXECUTIVE SESSION TO BE IN ACCORDANCE WITH THE MOTION TO RECESS. Only public business matters lawfully exempted from Open Meeting requirements by Virginia law were discussed in Executive Session to which this certification resolution applies; AND, Only such public business matters as were identified in the motion convening the Executive Session were heard, discussed or considered by Virginia Beach City Council. Voting: 10-0 Council Members Voting Aye: John A. Baum, Linwood O. Branch, III, Robert IC Dean, William W. Harrison, Jr., Barbara 34. Henley, Louis R. Jones, John D. Moss, Mayor Meyera E. Oberndo~ Nancy IC Parker and Louisa M. Strayhorn Council Members Voting Nay: None Council Members Absent: Vice Mayor William D. Sessoms, Jr. November 8, 1994 Beso utto CERTIFICATION OF EXECUTIVE SESSION VIRGINIA BEACH CITY COUNCIL WHEREAS: The Virginia Beach City Council convened into EXECUTIVE SESSION, pursuant to the affirmative vote recorded in ITEM # 38541, Page No. 10, and in accordance with the provisions of The Virginia Freedom of Information Act; and, WHEREAS: Section 2.1-344. of the Code of Virginia requires a certification by the governing body that such Executive Session was conducted in conformity with Virginia law. NOW, THEREFORE, BE IT RESOLVED: That the Virginia Beach City Council hereby certifies that, to the best of each member's knowledge, (a) only public business matters lawfully exempted from Open Meeting requirements by Virginia law were discussed in Executive Session to which this certification resolution applies; and, (b) only such public business matters as were identified in the motion convening this Executive Session were heard, discussed or considered by Virginia Beach City Council. RaSh Hodges ~mithj CMC/AAE City Clerk November 8, 1994 - 13 - Item III-F. 1. MINUTES ITEM # 3854; Upon motion by Councilman Moss, seconded by Council Lady Parker, City Council APPROVED the Minutes of the INFORMAL AND FORMAL SESSIONS of November 1, 1994. Voting: 10-0 Council Members Voting Aye: John A. Baurn, Linwood O. Branch, III, Robert K. Dean, I;4lliam W. Harrison, Jr., Barbara M. Henley, Louis R. Jones, John D. Moss, Mayor Meyera E. Oberndo~ Nancy IC Parker and Louisa M. Strayhorn Council Members Voting Nay: None Council Members Absent: l/ice Mayor William D. Sessoms, Jr. November 8, 1994 - 14 - Item III-G. 1. MAYOR'S PRESENTATION ITEM # 38544 Mayor Oberndorf recognized: AMERICAN EDUCATION WEEK November 13 - 19, 1994 AMERICAN EDUCATION WEEK encourages community members to become familiar with their local schools by participating in school-sponsored open houses, hours and other informational activities. November 8, 1994 - 15 - Item III-H. CONSENT AGENDA ITEM # 38545 Upon motion by Vice Mayor Sessoms, seconded by Council Lady Strayhorn, City Council APPROVED in ONE MOTION, Items 1, 4 and 5 of the CONSENT AGEND/L Items 2 and 3 were pulled for a separate vote. Voting: 11-0 Council Members Voting Aye: John A. Baurn, Linwood O. Branch, III, Robert If. Dean, William W. Harrison, Jr., Barbara M. Henley, Louis R. Jones, John D. Moss, Mayor Meyera E. Oberndoff, Nancy If. Parker, Vice Mayor William D. Sessorns, Jr., and Louisa M. Strayhorn Council Members Voting Nay: None Council Members Absent: None November 8, 1994 - 16 - Item HI-H.l.a/b. CONSENT AGENDA ITEM # 38546 Upon motion by Vice Mayor Sessoms, seconded by Council IxMy Strayhorn, City Council ADOPTED: Finalization of $1,585,000.00 loan from the Virginia Revolving Loan Fund re sanitary sewer projects at Grayson/Bonney Road (CIP 6-006) and Dozier's Bridge (CIP 6-008): Third Supplemental Resolution to SUPPLEMENT and AMEND the Resolution adopted February 11, 1992, entitled "Master Water and Sewer Revenue Bond Resolution Providing for the Issuance from Time to Time of One or More Series of Water and Sewer System Revenue Bonds of the City of Virginia Beach", as previously supplemented; to provide for the issuance and sale of a taxable Water and Sewer System Revenue Bond, Series of 1994; and, providing for the form, details and payment thereof and the financing of the cost of improvements to the City's water and sanitary sewer facilities. Ordinance to TRANSFER $1,026,439 between Water and Sewer Capital Projects to allow closing of a loan from the Virginia Revolving Loan Fund. Voting: 11-0 Council Members Voting Aye: John A. Baum, Linwood O. Branch, III, Robert K. Dean, William W.. Harrison, Jr., Barbara M. Henley, Louis I~ Jones, John D. Moss, Mayor Meyera E. Oberndo~ Nancy K Parker, Vice Mayor William D. Sessorns, Jr., and Louisa M. Strayhorn Council Members Voting Nay: None Council Members Absent: None November 8, 1994 CITY OF VIRGINIA BEACH, VIRGINIA THIRD SUPPLEHEHTAL RESOLUTION SUPPLEMENTING AND AHEHDING RESOLUTIONADOPTED FEBRUARY LL, ~992v ENTITLED *tHASTER WATER AHD SEWER REVENUE BOND RESOLUTION PROVIDING FOR THE ISSUANCE FROM TIME TO TIME OF ONE OR MORE SERIES OF WATER AND SEWER SYSTEM REVENUE BONDS OF THE CITY OF VIRGINIA BEACHvot AS PREVIOUSLY SUPPLEMENTED, TO PROVIDE FOR THE ISSUANCE AND SALE OF A TAXABLE WATER AND SEWER SYSTEM REVENUE BOND~ SERIES OF L994; AHDPROVIDING FOR THE FORM, DETAILS ANDPAYMENT THEREOF AND THE FINANCING OF THE COST OF IMPROVEHENTS TO THE CITY*S WATER ]~ID SANITARY SEWER FACILITIES ADOPTED ON NOVEMBER 8, ~994 TABLE OF CONTENTS Recitals ......................... ARTICLE THIRD SUPPLEMENT]~L RESOLUTION Section 3.101. Section 3.102. Section 3.103. Third Supplemental Resolution ...... Meaning of Terms; Definitions . . ARTICLE II PROJECT 1 1 1 2 ~$SUANCE AND SALE OF SERIES OF 1994 BOND Section 3.301. Section 3.302. Section 3.303. Section 3.304. Section 3.305. Section 3.306. Section 3.307. Section 3.308. Section 3.309. Issuance and Sale of Series of 1994 Bond . 2 Authorization of Financing Agreement . . . 3 Details of Series of 1994 Bond ...... 3 Registrar ' ' '1~9; ~o~d ........ 3 Form of Series ~f ....... 3 Security for Series of 1994 Bond ..... 8 Application of Proceeds ......... 9 Payment Provisions . 'M n g r-a-a-e- ...... 9 Determinations by City ...... 10 ARTICLE IV REDEMPTION OF SERIES OF 1994 BOND Section 3.401. Redemption Provisions .......... 10 ARTICLE V AMENDMENTS TO MASTER RESOLUTION Section 3.501. Section 3.502. Section 3.503. Amendment to Section 603 ......... 10 Amendment to Section 604 ......... 10 Amendment to Section 605 ......... 11 ARTICLE VI MISCELLANEOUS Section 3.601. Section 3.602. Section 3.603. Limitation of Rights ........... 11 Severability ............... 11 Effective Date .............. 12 ARTICLE III Section 3.201. Authorization of Project ......... 2 Appendix A - Description of the Project (ii) THIRD SUPPLRMEHTAL RESOLUTION SUPPLEMEHTXNG AND AMENDING RF~OLUTION ADOPTED FEBRUARY Il; X992; BNTXTLED "I(A~TER WATER AND SEWER REVEHUE BOND RESOLUTION PROVIDING FOR THE ISSUANCle FROM TIME TO TIME OF ONE OR MORE SERIES OF WATER AHD SEWER SYSTEM REVENUE BONDS OF THE CITY OF VIRGINIA BEACH,*' AH PREVIOUSLY SUPPLEKEHTED, TO PROVIDE FOR THE ISSUANCE AND SALE OF A TAX&BLE WATER AND SEWER SYSTEM REVENUE BOND, SERIES OF X994, AND PROVIDING FOR THE FORM, DETAILS AND PAYMENT THEREOF AHD THE FINANCING OF THE COST OF IMPROVEMENTS TO THE CITY*S WATER AND SANXTARY SEWER FACILITIES NHEREA~, the Council of the City of Virginia Beach, Virginia, adopted a resolution on February 11, 1992, providing for the issuance from time to time of water and sewer revenue bonds to finance the cost of improvements and extensions to its water and sanitary sewer system; NHEREAS, the Council desires to issue pursuant to the foregoing resolution not more than $78,561 of the $14,560,000 water and sewer system revenue bonds authorized by an ordinance adopted by the Council on December 6, 1990, and $1,506,439 of the $7,400,000 water and sewer system revenue bonds authorized by an ordinance adopted by the Council on November 23, 1993, and to sell such bonds as a single issue in the collective amount of $1,585,000; NHEREAS, the City has applied to the Virginia Water Facilities Revolving Fund (the "Revolving Fund"), which is administered by Virginia Resources Authority ("VRA"), for the purchase of the City's water and sewer system revenue bonds, and the Revolving Fund, acting by and through VRA, has agreed to purchase such bonds pursuant to the terms of a Financing Agreement dated as of November 1, 1994, between the Revolving Fund and the City (the "Financing Agreement"), the form of which has been presented to this meeting; NHEREA~, the Council adopted on June 28, 1994, a resolution authorizing the City Manager to execute a Commitment Letter for the $1,585,000 loan from the Virginia Revolving Loan Fund. BE XT RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VXRGINI~ ARTICLE THIRD SUPPLEMENTAL RESOLUTION Section 3.101. Third Supplemental Resolution. This Third Supplemental Resolution is adopted pursuant to and in accordance with Section ll01(g) of the Master Resolution. All covenants, conditions and agreements of the Master Resolution shall apply with equal force and effect to the Series of 1994 Bond and to the holders thereof, except as otherwise provided herein. Section 3.102. Meaning of Terms; Definitions. Except as otherwise defined herein, terms defined in the Master Resolution are used in this Third Supplemental Resolution with the meanings assigned to them in the Master Resolution. In addition, the following terms shall have the following meanings in this Third Supplemental Resolution. "'Master Resolution" shall mean the resolution adopted by the Council on February 11, 1992, establishing a program for financing improvements and extensions to the System. "1994 Project" shall mean the acquisitions, improvements, extensions, additions and replacements to the System as described in Article II. "Registrar" shall mean the City Treasurer paying agent and bond registrar for the Series of 1994 Bond. "Series of 1994 Bond" shall mean the Taxable Water and Sewer System Revenue Bond, Series of 1994, in the amount determined by the City Manager not in excess of $1,585,000 authorized to be issued by Article III. "Third Supplement&l Resolution" shall mean this Third Supplemental Resolution which supplements the Master Resolution. Section 3.103. Reference to Articles end Sections. Unless otherwise indicated, all references herein to particular articles or sections are references to articles or sections of this Third Supplemental Resolution. ARTICLE II PROJECT section 3.201. Authorization of Project. The Council has authorized the acquisitions, improvements, extensions, additions and replacements to the System described on Appendix A, which are part of the approved capital improvement program of the City. ARTICLE III ISSU&NCE AND SALE OF SERIES OF 1994 BOND Section 3.301. Issuance and Bale of Series of 1994 Bond. The City hereby provides for the issuance of water and sewer system revenue bonds in the maximum principal amount of $1,585,000, consisting of not more than $78,561 of the $14,560,000 water and sewer system revenue bonds authorized by an ordinance adopted by the Council on December 6, 1990, and $1,506,439 of the $7,400,000 water and sewer system revenue bonds authorized by an ordinance adopted by the Council on November 23, 1993, which such bonds shall be issued and sold to the Revolving Fund. Subject to the - 2 - limitations set forth in the preceding sentence, the City Manager is hereby authorized to determine at the time of the sale of the bonds the specific amounts to be issued from the two authorizing ordinances. The proceeds thereof shall be used to pay the Cost of the Project. All such bonds shall constitute Bonds, as defined in the Master Resolution. Seotion 3.302. &uthorimation of Finanoing Agreement. The form of the Financing Agreement is approved. The city Manager is authorized to execute the Financing Agreement in substantially such form, with such completions, omissions, insertions and changes not inconsistent with this Third Supplemental Resolution as may be approved by the City Manager, whose approval shall be evidenced conclusively by the execution and delivery thereof. The issuance and sale of the Series of 1994 Bond to the Revolving Fund shall be upon the terms and conditions of the Master Resolution, this Third Supplemental Resolution and the Financing Agreement. Beotion 3.303. Details of Series of 1994 Bond. The Series of 1994 Bond shall be issued as a single, registered bond and shall be designated "Taxable Water and Sewer System Revenue Bond, Series of 1994." The Series of 1994 Bond shall be dated the date of its delivery to the Revolving Fund and shall be in a denomination not to exceed $1,585,000. The Series of 1994 Bond shall provide for the Revolving Fund to make principal advances from time to time in an aggregate amount not to exceed $1,585,000 and to note such advances on the Series of 1994 Bond as moneys are advanced by the Revolving Fund thereunder. An authorized representative of the Revolving Fund shall enter the amount and the date of each such principal advance on the Certificate of Principal Advances on the Series of 1994 Bond when the proceeds of each such advance are delivered to the City. Except as otherwise provided herein, the Series of 1994 Bond shall be payable, executed, authenticated, registrable, exchangeable and secured, all as set forth in the Master Resolution. Seotion 3.304. Registrar. The selection of the City Treasurer as paying agent and bond registrar for the Series of 1994 Bond is approved. 8eotion 3.305. Form of Series of 1994 Bond. The Series of 1994 Bond shall be in substantially the following form, with such variations, omissions and insertions as may be necessary to set forth the details thereof pursuant to Article II of the Master Resolution: - 3 - Interest on this bond is included in the gross income of the registered owner hereof for Federal income tax purposes. SIX,SSS,000] · 1994 UNITED STATES OF AMERICA COMMONWEALTH OF VIRGINIA CITY OF VIRGINIA BEACH Taxable Water and Sewer System Revenue Bond Series of 1994 The City of Virginia Beech· Virginia (the "City"), a political subdivision of the Commonwealth of Virginia, for value received, acknowledges itself in debt and promises to pay to the Virginia Water Facilities Revolving Fund (the "Fund"), or its registered assigns or legal representative, the principal sum equal to the sum of the principal advances shown on the Certificate of Principal Advances below, but not to exceed [One Million Five Hundred Eighty- Five Thousand and XX/100 Dollars ($1,585,000)], together with interest on the unpaid principal from the date of each advance made and noted on the Certificate of Principal Advances at the rate of 4.5% per year, calculated on the basis of a 360-day-year and a 30- day-month. Interest only is due on December 1, 1995. Thereafter, equal installments of combined principal and interest of $ are payable on each June i and December 1, beginning June 1, 1996, with a final installment of $ due on June 1, [2015]. Each installment shall be applied first to the payment of interest accrued and unpaid to the payment date and then to principal. If the aggregate amount of principal advances is less than $[1,585,000], then the installments due on the Bond shall be reduced to the extent thereof. If not sooner paid, all amounts due under this bond shall be due and payable on June 1, [2015]. Ail amounts due hereunder are payable in lawful money of the United States. Payments shall be made by check or draft mailed to the registered owner at its address as it appears on the registration books kept for that purpose by the City Treasurer who has been appointed paying agent and registrar (the "Registrar"), on the 15th day of the month preceding the payment date, except that the final payment is payable upon presentation and surrender of this bond at the office of the Registrar. No notation is required to be made on this bond of any payment or prepayment of principal. THEREFOREv THE FACE AMOUNT OF THIS BOND MAY EXCEED THE PRINCIPAL SUM REMAINING OUTSTANDING AND DUE HEREUNDER. - 4 - This bond has been authorized by ordinances adopted by the Council of the City on December 6, 1990, and November 23, 1993 (collectively, the "Ordinance"), and is issued pursuant to the Constitution and statutes of the Commonwealth of Virginia, including the Public Finance Act of 1991, a resolution adopted by the Council on February 11, 1992, as supplemented by resolutions adopted February 11, 1992, December 7, 1993, and November 8, 1994 (collectively with the Ordinance, the "Resolution"), and a financing agreement dated as of November 1, 1994, between the City and the Fund, acting by and through the Virginia Resources Authority (the "Financing Agreement"), to finance, in part, improvements to the City's water and sanitary sewer system (the "System"), including the provision of wastewater service to two neighborhoods of the City that are experiencing septic tank failures. The City's obligations under this bond shall terminate when all amounts due and to become due pursuant to this bond and the Financing Agreement have been paid in full. Ail terms not otherwise defined herein shall have the meanings assigned to them in the Resolution. This bond and the interest thereon are limited obligations of the City and are payable solely from the revenues to be derived from the ownership or operation of the System, as the same may from time to time exist, except to the extent payable from the proceeds of the Bonds, the income, if any, derived from the investment thereof, certain reserves, income from investments pursuant to the Resolution or proceeds of insurance, which revenues and other moneys have been pledged as described in the Resolution to secure payment thereof. This Bond and the interest thereon are payable solely from the revenues pledged thereto in the Resolution, and nothing herein, the Resolution or in the Financing Agreement shall be deemed to create or constitute an indebtedness of or a pledge of the faith and credit of the Commonwealth of Virginia or of any county, city, town or other political subdivision of the Commonwealth, including the City. The city has covenanted and agreed to fix, charge and collect rates, fees and other charges for the use of and for services furnished or to be furnished by the System, and will from time to time and as often as appears necessary, revise such rates, fees and other charges so as to meet the following two independent requirements: (a) Revenues will be sufficient in each Fiscal Year to equal the sum of (1) the Operating Expenses shown in the Annual Budget for such Fiscal Year, and (2) (A) 115% of the sum of Maximum Annual Debt Service and Maximum Annual Prior Parity Bond Debt Service, and (B) 100% of the Maximum Annual Additional Parity Debt Service; and (b) Revenues shall be sufficient in each Fiscal Year to equal the sum of (1) the Operating Expenses shown in the Annual Budget for such Fiscal Year, (2) the amount, if any, required to be paid into the Renewal and Replacement Fund in such Fiscal Year, (3) the amount required to be paid into the Revenue Bond Fund in such Fiscal Year, (4) the amount required to be paid into the Parity Double Barrel Bond Fund in such Fiscal Year, (5) the amount - 5 - required to be paid into the Parity Debt Service Component Fund in such Fiscal Year, (6) the amount required to be paid into the Subordinate Debt Fund in such Fiscal Year, (7) the principal of and premium, if any, and interest on all other indebtedness of the City attributable to the System that becomes due in such Fiscal Year, (8) the amount transferred to the Capital Improvement Account for the immediately preceding Fiscal Year or such other amount as may be determined by the City's Director of Public Utilities, and (9) any amount necessary to be paid into the Debt Service Reserve Fund to restore the amount on deposit therein to the amount of the Debt Service Reserve Requirement. This bond is issued under and is equally and ratably secured on a parity with the unpaid balance of the City's $3,000,000 Revenue Bonds, 1977 (P.A. Corp.), $5,100,000 Water and Sewer Revenue Notes, 1977 (P.A. Corp.), $2,000,000 Drought Relief Revenue Bond, 1978, $2,200,000 Water and Sewer Revenue Notes, 1982 (County Utilities), $1,800,000 Water and Sewer Revenue Notes, 1982 (Kempsville Utilities), $19,975,000 Water and Sewer System Revenue Bonds, Series of 1992, and $46,440,000 Water and Sewer System Revenue and Refunding Bonds, Series of 1993, to the extent set forth in the Resolution. Reference is hereby made to the Resolution and all amendments and supplements thereto for a description of the provisions, among others, with respect to the nature and extent of the security, the rights, duties and obligations of the City, the rights of the holders of this bond and the terms upon which the bond is issued and secured. Additional bonds ranking equally with this bond may be issued on the terms provided in the Resolution and the Financing Agreement. This bond is subject to prepayment to the extent and under terms set forth in the Financing Agreement. This bond is issued as a registered bond and may be transferred only in accordance with the provisions with respect thereto as provided in the Resolution and the Financing Agreement. This bond may be exchanged without cost at the office of the Registrar for bonds in printed form in denominations of $5,000 and multiples thereof (except that one bond for each payment date may be issued in an odd denomination of not less than $5,000) in an aggregate principal amount equal to the unpaid principal of this bond. If an Event of Default, as defined in the Resolution, occurs and is continuing, the principal of this bond may be declared immediately due and payable by the registered owner by written notice to the City. Notwithstanding anything in this bond to the contrary, in addition to the payments of debt service provided for by this bond, the City shall also pay such additional amounts, if any, which may be necessary to provide for payment in full of all amounts due - 6 - under the FinancingAgreement, including late payment charges equal to 5.0% of any payment received by the registered owner of this bond more than 10 days from its due date, but only from legally available funds. All acts, conditions and things required by the Constitution and statutes of the Commonwealth of Virginia to happen, exist or be performed precedent to and in the issuance of this bond have happened, exist and have been performed, and this bond, together with all other indebtedness of the City, is within every debt and other limitation prescribed by the Constitution and statutes of the Commonwealth of Virginia. This bond shall not be valid or be entitled to any security or benefit under the Resolution until the Registrar shall have executed the Certificate of Authentication appearing hereon and inserted the date of authentication hereon. IN WITNESS WHEREOF, the City of Virginia Beach, Virginia, has caused this bond to be signed by its Mayor, to be countersigned by its Clerk, its seal to be affixed hereto and this bond to be dated , 1994. COUNTERSIGNED~ City Clerk, City of Virginia Beach, Virginia (SEAL) Mayor, City of Virginia Beach, Virginia CERTIFICATE OF AUTHENTICATION Date Authenticated: This bond is one of the bonds described in the within- mentioned Resolution. City Treasurer, Registrar By Authorized Signature - 7 - CERTiFiCaTE OF PR~NC~P~L ADVANCES The amount and date of principal advances not to exceed the face amount hereof shall be entered hereon by an authorized representative of the Fund when the proceeds of each such principal advance are delivered to the City. $ $ $ $ $ $ $ $ $ $ Amount Date $ $ $ $ $ ~uthorized Siqnatur® Seotion 3.306. Security for Series of 1994 Bond. The Series of 1994 Bond shall be issued pursuant to the Master Resolution, this Third Supplemental Resolution and the Financing Agreement and shall be equally and ratably secured under and to the extent provided in the Master Resolution with the Prior Parity Bonds, any Bonds that may be issued under the Master Resolution, any Parity Double Barrel Bonds that may be issued and any Parity Debt Service Components that may be incurred, without preference, priority or distinction of any obligations over any other obligations; - 8 - provided, however, the Debt Service Reserve Fund will secure only the Bonds. Beotion 3.307. &pplio&tion of Prooeeds. The proceeds of the Series of 1994 Bond shall be applied as follows: (a) The amount of 1994 Bond proceeds necessary, together with amounts on deposit in the Debt Service Reserve Fund, to equal the Debt Service Reserve Requirement after the issuance of the 1994 Bonds shall be paid to the Fiscal Agent and deposited into the Debt Service Reserve Fund. (b) The balance of the proceeds shall be deposited as and when received from the Revolving Fund to a General Account in the Construction Fund to be used to pay the Cost of the Project and to pay expenses incident to issuing the Series of 1994 Bond. Section 3.308. Payment Provisions. The Series of 1994 Bond shall bear interest on the unpaid principal from the date of each principal advance as recorded on the Series of 1994 Bond at a rate of 4.5% per year, calculated on the basis of a 360-day-year and a 30-day-month. Accrued interest on all amounts advanced shall be due and payable on December 1, 1995. Thereafter equal installments of combined principal and interest shall be due and payable on each June I and December 1, beginning June 1, 1996, with a final installment due and payable no later than June 1, 2015. The Council authorizes the City Manager to determine the amounts of such combined principal and interest installment payments; provided, however, that the aggregate principal component of such installment payments shall not exceed $1,585,000. Each installment shall be applied first to payment of interest accrued and unpaid to the payment date and then to principal. If the aggregate amount of principal advances on the Series of 1994 Bond shall be less than the denomination of the Series of 1994 Bond, the principal amount due shall be reduced to the extent thereof. The Series of 1994 Bond shall be payable solely from Revenues and nothing in the Financing Agreement, the Series of 1994 Bond or this Third Supplemental Resolution shall be deemed to create or constitute an indebtedness or pledge of the faith and credit of the Commonwealth of Virginia or of any county, city, town or other political subdivision of the Commonwealth, including the City. In addition, the City shall pay a late payment charge as provided in the Financing Agreement if any payment is not received within 10 days of its due date, but only from legally available funds. All payments due on the Series of 1994 Bond shall be payable as provided in the Financing Agreement in lawful money of the United States of America. Payments shall be made by check or draft mailed to the registered owner at its address as it appears on the registration books kept for that purpose by the Registrar, on the 15th day of the month preceding the payment date, except that the final payment is payable upon presentation and surrender of the Series of 1994 Bond at the office of the Registrar. The City - 9 - intends that amounts constituting interest on the Series of 1994 Bond will be included in the gross income of the holder thereof for Federal income tax purposes. Section 3.309. Determinations by City Manager. Following the sale of the Series of 1994 Bond, the City Manager shall file a certificate with the City Clerk setting forth the final payment provisions of the Series of 1994 Bond and the amounts of the water and sewer system revenue bonds to be issued as a part of the Series of 1994 Bond from the amounts authorized by the ordinances referenced in Section 3.301. The actions of the City Manager in determining the final payment provisions of the Series of 1994 Bond shall be conclusive, and no further action with respect to the sale and issuance of the Series of 1994 Bond shall be necessary on the part of the City Council. /~RTICLE IV ~EDEMPTION OF SERIES OF 1994 BOND Section 3.401o Redemption Provisions. The Series of 1994 Bond shall be subject to prepayment as set forth in Section 7.1 of the Financing Agreement. ARTICLE V AMENDMENTS TO MASTER RESOLUTION Section 3.S01. Amendment to Section 603. Section 603(b) of the Master Resolution shall be amended and restated to read as follows: (b) City of Virginia Beach Water and Sewer System Revenue Bond Fund, in which there are established a Prior Parity Bond Account, an Interest Account, a Principal Account and a 1994 RLF Debt Service Account; Section 3.S0Z. Amendment to Section 604. Section 604(a) of the Master Resolution shall be amended to insert after subsection (3) the following as subsection (4): (4) then, to the 1994 RLF Debt Service Account in the Revenue Fund, such amount, if any, as may be required to make the total amount on deposit therein equal to one- sixth of the finance payment multiplied by the sum of one plus the number of complete months since the last finance payment due on the Series of 1994 Bond in the next succeeding six months, as such finance payment is required by Section 6.1 of the Financing Agreement between the City and the Virginia Water Facilities Revolving Fund dated as of November 1, 1994; - 10 - seotion 3.503. Amendment to 8eotion 605. The second sentence of the first paragraph of Section 604 shall be amended and restated to read as fellers: "The Fiscal Agent shall pay when due the principal of and interest on the Bonds from the Principal Account and the Interest Account, respectively, except that the principal of and interest on the Series of 1994 Bond shall be paid solely from the 1994 RLF Debt Service Account." The fourth paragraph of Section 605 shall be amended and restated to read as follows: "In the event the balance in the Principal Account, the Interest Account or the 1994 RLF Debt Service Account within the Revenue Bond Fund is insufficient for the purposes thereof, the City shall transfer to the Fiscal Agent for deposit in such Accounts such amounts as may be necessary therefor from available moneys in the Revenue Account pursuant to Section 604, and then from the Residual Account pursuant to Section 612, and then from the Renewal and Replacement Account pursuant to Section 610. In the event the balance in any such Account is still insufficient for the purposes thereof, the Fiscal Agent shall transfer such amount as may be necessary therefor from the Debt Service Reserve Fund pursuant to Section 608." /~RTICLE VI MISCELLANEOUS Section 3.601. Limitation of Rights. With the exception of the rights herein expressly conferred, nothing expressed or mentioned in or to be implied from this Third Supplemental Resolution is intended or shall be construed to give any person other than the parties hereto and the holders of the Series of 1994 Bond any legal or equitable right, remedy or claim under or in respect to this Third Supplemental Resolution or any covenant, condition or agreement herein contained, this Third Supplemental Resolution and all of the covenants, conditions and agreements hereof being intended to be and being for the sole and exclusive benefit of the holders of the Series of 1994 Bond as herein provided. Section 3.602. 8everability. If any provision of this Third Supplemental Resolution shall be held invalid by any court of competent jurisdiction, such holding shall not invalidate any other provision hereof. - 11 - Seotion 3,603, Effective Date. This Third Supplemental Resolution shall take effect immediately. DEPARTMEN; DEPARTMEI~tT- APPROVED AS TO LEGAL ,~SUFFICIENCY AI',~D FOP~M _L~'~-.t-~~~~- CITY ATTO~ - 12 - Description sE the Pro, eot City of Virginia Beach, Virginia Taxable Water and Sewer System Revenue Bond APPENDIX A The acquisitions, improvements, extensions, additions and replacements to the System in order to finance the provision of wastewater service to two neighborhoods that are currently experiencing septic tank failure. CBEBC Dro~t: 11/01/94 FINANCING AGREEMENT BETWEEN VIRGINIA WATER FACILITIES REVOLVING FUND CITY OF VIRGINIA BEACH, VIRGINIA Virginia Resources Authority Virginia Water Facilities Revolving Fund Loan No. C-515138-02 [08/01/93] Section 1.1. Section 1.2. TABLE OF CONTENTS ARTICLE I DEFINITIONS Definitions .............................. Rules of Construction; References to Master Bond Resolution ................... Page Section 2.1. ARTICLE II REPRESENTATIONS Representations by Borrower .............. Section 3.1. Section 3.2. ARTICLE III ISSUANCE AND DELIVERY OF THE LOCAL BOND Loan to Borrower and Purchase of the Local Bond ............................... Conditions Precedent to Purchase of the Local Bond ........................... ARTICLE IV USE OF LOCAL BOND PROCEEDS AND CONSTRUCTION OF PROJECT Section 4.1. Section 4.2. Section 4.3. Section 4.4. Section 4.5. Section 4.6. Application of Proceeds .................. Agreement to Accomplish Project .......... Permits .................................. Construction Contractors ................. Engineering Services ..................... Borrower Required to Complete Project .... Section 5.1. Section 5.2. ARTICLE V PLEDGE, REVENUES AND RATES Pledge of Revenues ........................ Annual Budget ............................ - i - Page Section 6.1. Section 6.2. ARTICLE VI PAYMENTS Payment of Local Bond .................... Payment of Additional Payments ........... Section 7.1. ARTICLE VII PREPAYMENTS Prepayment of Local Bond ................. Section 8.1. Section 8.2. Section 8.3. Section 8.4. Section 8.5. Section 8.6. Section 8.7. Section 8.8. Section 8.9. Section 8.10. Section 8.11. Section 8.12. ARTICLE VIII OPERATION AND USE OF SYSTEM Maintenance .............................. Additions and Modifications .............. Use of System ............................ Inspection of System and Borrower's Books and Records ........................ Ownership of Land ........................ Sale or Encumbrance ...................... Collection of Revenues ................... No Free Service .......................... No Competing Service ..................... Mandatory Connection ..................... Lawful Charges ........................... Performance Certification ................ Section 9.1. Section 9.2. Section 9.3. Section 9.4. Section 9.5. ARTICLE IX INSURANCE, DAMAGE AND DESTRUCTION Insurance ................................ Requirements of Policies ................. Notice of Damage, Destruction and Condemnation ...' .......................... Damage and Destruction ................... Condemnation and Loss of Title ........... - ii Page ARTICLE X SPECIAL COVENANTS Section 10.1. Section 10.2. Section 10.3. Section 10.4. Section 10.5. Section 10.6. Section 10.7. Section 10.8. Section 10.9. Maintenance of Existence ................. Financial Records and Statements; Reports. Certificate as to No Default ............. Additional Indebtedness .................. Parity Bonds ............................. Further Assurances ....................... Other Indebtedness ....................... Assignment by Borrower ................... Compliance with Master Bond Resolution .... ARTICLE XI DEFAULTS AND REMEDIES Section 11.1. Section 11.2. Section 11.3. Section 11.4. Events of Default ........................ Notice of Default ........................ Remedies on Default ...................... Delay and Waiver ......................... ARTICLE XII MISCELLANEOUS Section 12.1. Section 12.2. Section 12.3. Section 12.4. Section 12.5. Section 12.6. Section 12.7. Section 12.8. Section 12.9. Section 12.10 Successors and Assigns ................... Amendments ............................... Limitation of Borrower's Liability ........ Applicable Law ........................... Severability ............................. Notices .................................. Right to Cure Default .................... Headings ................................. Term of Agreement ........................ Commitment Letter ........................ Section 12.11. Counterparts ............................. EXHIBITS Exhibit A Form of Local Bond Exhibit B Project Description Exhibit C Project Budget Exhibit D - Opinion of Borrower's Counsel Exhibit E - Requisition Exhibit F - Prior Bonds and Existing Parity Bonds Exhibit G - Performance Standards Exhibit H - Pending Litigation - iii - FINANCING AGREEMENT THIS FINANCING AGREEMENT is made as of the first day of [November], 1994, between the VIRGINIA WATER FACILITIES REVOLVING FUND, acting by and through the VIRGINIA RESOURCES AUTHORITY, a public body corporate and a political subdivision of the Commonwealth of Virginia (the "Authority"), and the CITY OF VIRGINIA BEACH, VIRGINIA, a political subdivision of the Commonwealth of Virginia (the "Borrower"). Pursuant to Chapter 22, Title 62.1 of the Code of Virginia (1950), as amended (the "Act"), the General Assembly created a permanent and perpetual fund known as the "Virginia Water Facilities Revolving Fund" (the "Fund"). In conjunction with the State Water Control Board, the Authority administers and manages the Fund. From the Fund, the Authority from time to time makes loans to and acquires obligations of local governments in Virginia to finance or refinance the costs of wastewater treatment facilities within the meaning of Section 62.1-224 of the Act. The Borrower has requested a loan from the Fund and will evidence its obligation to repay such loan by the Local Bond the Borrower will issue and sell to the Fund. The Borrower will use the proceeds of the sale of the Local Bond to the Fund (i) to finance that portion of the Project Costs not being paid from other sources, and (ii) deposit in the Debt Service Reserve Fund (as established under and as defined in the Master Bond Resolution) the amount required by the Master Bond Resolution, all as further set forth in the Project Budget. ARTICLE I DEFINITIONS Section 1.1. Definitions. The capitalized terms contained in this Agreement and not defined above shall have the meanings set forth below unless the context requires otherwise and any capitalized terms not otherwise defined herein shall have the meaning assigned to such terms in the Act: "Additional Payments" means the payments required by Section 6.2. "Agreement" means this Financing Agreement between the Fund and the Borrower, together with any amendments or supplements hereto. ',Authorized Representative" means any member, official or employee of the Borrower authorized by resolution, ordinance or other official act of the governing body of the Borrower to perform the act or sign the document in question. "Board" means the State Water Control Board. "Business Day" means a day of the year which is not a Saturday or Sunday or a day on which banking institutions located in New York or Virginia are required or authorized to remain closed or on which the New York Stock Exchange is closed. "Closing Date" means the date of the delivery of the Local Bond to the Fund. ,'Commitment Letter" shall mean the commitment letter from the Fund to the Borrower, dated February 9, 1994, accepted June 28, 1994, and all extensions and amendments thereto. "Consulting Engineer" means the engineer or the firm of engineers experienced in the field of sanitary engineering and licensed and registered as a professional engineer to do business in Virginia, designated by the Borrower from time to time as the Borrower's consulting engineer in accordance with Section 4.5 in a written notice to the Authority. Such individual or firm shall be subject to the reasonable approval of the Authority and may be an employee of the Borrower or an independent engineer or firm of engineers. "Default" means an event or condition the occurrence of which would, with the lapse of time or the giving of notice or both, become an Event of Default. "Department" means the Department of Environmental Quality, created and acting under Chapter 11.1, Title 10.1, of the Code of Virginia, as amended. "Event of Default" shall have the meaning set forth in Section 11.1. "Existing Parity Bonds" means any of the Borrower's bonds, notes or other evidences of indebtedness, as further described on Exhibit F, that on the date of the Local Bond's issuance and delivery were secured by a pledge of Revenues on a parity with the pledge of Revenues securing the Local Bond. "Fiscal Year" means the period of twelve months established by the Borrower as its annual accounting period. "Local Bond" means the bond in substantially the form attached to this Financing Agreement as Exhibit A issued by the Borrower to the Fund pursuant to this Agreement. "Local Bond Proceeds" means the proceeds of the sale of the Local Bond to the Fund pursuant to this Agreement. "Local Resolution" means the resolution or ordinance adopted by the governing body of the Borrower approving the transactions contemplated by and authorizing the execution and delivery of this Agreement and the execution, issuance and delivery of the Local Bond. For purposes of this Agreement, the Local Resolution shall also mean the Third Supplemental Resolution. "Master Bond Resolution" means the Master Water and Sewer Revenue Bond Resolution Providing for the Issuance from Time to Time of One or More Series of Water and Sewer System Revenue Bonds of the City of Virginia Beach, adopted by the Borrower's City Council on February 11, 1992, as it may be amended or supplemented by its terms from time to time. "Net Proceeds" means "Net Proceeds" as defined in the Master Bond Resolution. "Net Revenues Available for Debt Service" means the Revenues less amounts necessary to pay Operation and Maintenance Expense. "Operation and Maintenance Expense" means "Operating Expenses" as defined in the Master Bond Resolution. "Opinion of Counsel" shall mean a written opinion of recognized bond counsel, acceptable to the Authority. "Parity Bonds" means bonds, notes or other evidences of indebtedness of the Borrower issued under Section 10.5. ,,Performance Standards" means the performance standards for the Project as more particularly described in Exhibit G. ,'Prior Bonds" means any of the Borrower's bonds, notes or other evidences of indebtedness, as further described in Exhibit F, that on the date of the Local Bond's issuance and delivery were secured by a pledge of Revenues all or any portion of which was superior to the pledge of Revenues securing the Local Bond. "Project" means the particular project described in Exhibit B, the costs of the construction, acquisition or equipping of which are to be financed or refinanced in whole or in part with the Local Bond Proceeds. "Project Budget" means the budget for the financing or the refinancing of the Project, a copy of which is attached to this Agreement as Exhibit C, with such changes therein as may be approved in writing by the Authority. "Project Costs" means the costs of the construction, acquisi- tion or equipping of the Project, including the deposit to the Debt Service Reserve Fund, as further described in the Project Budget, and such other costs as may be approved in writing by the Authority, provided such costs are permitted by the Act. "Revenues" means "Revenues" as defined in the Master Bond Resolution. "Subordinate Bonds" means bonds, notes or other evidences of indebtedness of the Borrower secured by a pledge of Revenues expressly made subordinate to the pledge of Revenues to secure the payment of the Local Bond. "System" means all plants, systems, facilities, equipment or property, of which the Project constitutes the whole or is a part, owned, operated or maintained by the Borrower and used in connec- tion with the collection or treatment of wastewater or the collection, supply, storage, treatment or distribution of water. "Third Supplemental Resolution" means the Third Supplemental Resolution supplementing and amending the Master Bond Resolution, adopted by the Borrower on [November 8, 1994]. Section 1.2. Rules of Construction; References to Master Bond Resolution. The following rules shall apply to the construction of this Agreement unless the context requires otherwise: (a) Singular words shall connote the plural number as well as the singular and vice versa. (b) Ail references in this Agreement to particular Sections or Exhibits are references to Sections or Exhibits of this Agreement unless otherwise indicated. (c) The headings and table of contents as used in this Agreement are solely for convenience of reference and shall not constitute a part of this Agreement nor shall they affect its meaning, construction or effect. (d) References in this Agreement to sections and subsections in the Master Bond Resolution shall be read to include the defined terms used in such sections and subsections. ARTICLE II REPRESENTATIONS Section 2.1. Representations by Borrower. The Borrower makes the following representations as the basis for its undertakings under this Agreement: (a) The Borrower is a duly created and validly existing "local government" (as defined in Section 62.1-224 of the Act) of the Commonwealth of Virginia and is vested with the rights and powers conferred upon it by Virginia law. (b) The Borrower has full right, power and authority to (i) adopt the Local Resolution and execute and deliver this Agreement and the other documents related thereto, (ii) issue, sell and deliver its Local Bond to the Fund, (iii) own and operate the System, (iv) construct, acquire or equip the Project (as described in Exhibit B) and finance or refinance the Project Costs by borrowing money for such purpose pursuant to this Agreement and the issuance of its Local Bond, and (v) carry out and consummate all of the transactions contemplated by the Local Resolution, this Agreement and the Local Bond. (c) This Agreement and the Local Bond were duly authorized by the Local Resolution and are in substantially the same form as presented to the governing body of the Borrower at its meeting at which the Local Resolution was adopted. (d) Ail permits, licenses, registrations, certificates, authorizations and approvals required to have been obtained as of the date of the delivery of this Agreement have been obtained for (i) the Borrower's adoption of the Local Resolution, (ii) the execution and delivery by the Borrower of this Agreement and the Local Bond, (iii) the performance and enforcement of the obliga- tions of the Borrower thereunder, (iv) the acquisition, construc- tion, equipping, occupation, operation and use of the Project, and (v) the operation and use of the System. The Borrower knows of no reason why any such required permits or approvals not obtained as of the date hereof cannot be obtained as needed. (e) This Agreement and the Local Bond have been executed and delivered by duly authorized officials of the Borrower and constitute the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their terms. (f) Except as disclosed in Exhibit H, there are not pending nor, to the best of the Borrower's knowledge, threatened, any actions, suits, proceedings or investigations of a legal, equitable, regulatory, administrative or legislative nature, in which a judgment, order or resolution may have a materially adverse effect on the Borrower in its business, assets, condition (financial or otherwise), operations or prospects or in its ability to perform its obligations under this Agreement or the Local Bond. (g) There have been no defaults by any contractor or subcontractor under any contract made in connection with the construction or equipping of the Project. (h) No material adverse change has occurred in the financial condition of the Borrower as indicated in the financial statements, applications and other information furnished to the Authority. (i) Except as listed on Exhibit F, there is no indebt- edness of the Borrower secured by a pledge of Revenues prior to or on a parity with the pledge of Revenues securing the Local Bond. (j) continuing. No Event of Default or Default has occurred and is ARTICLE III ISSUANCE AND DELIVERY OF THE LOCAL BOND Section 3.1. Loan tO Borrower and Purchase of the Local Bond. The Borrower agrees to borrow from the Fund and the Fund agrees to lend to the Borrower the principal amount equal to the sum of the principal disbursements made pursuant to Section 4.1, but not to exceed $1,585,000.00 for the purposes herein set forth. The Borrower's obligation shall be evidenced by the Local Bond, which shall be in substantially the form of Exhibit A attached hereto and made a part hereof and delivered to the Fund on the Closing Date. The Local Bond shall be in the original principal amount of the loan and shall mature and be payable as hereinafter provided. Section 3.2. Conditions Precedent to Purchase of the Local Bond. The Fund shall not be required to make the loan to Borrower and purchase the Local Bond unless the Fund shall have received the following, all in form and substance satisfactory to the Authority: (a) A certified copy of the Local Resolution. (b) A certificate of appropriate officials of the Borrower as to the matters set forth in Section 2.1 and such other matters as the Authority may reasonably require. (c) (i) If required by the Department, a contract or contracts for the construction, acquisition and/or equipping of the Project which are acceptable to the Department as to form and content, or (ii) the Consulting Engineer's estimate of the total Project Costs to be financed with the Local Bond Proceeds. Such contracts or estimates must be in an amount and otherwise compatible with the financing plan described in the Project Budget. (d) A certificate of the Consulting Engineer to the - 6 effect that in the opinion of the Consulting Engineer (i) the Project will be a part of the System, (ii) the Local Bond Proceeds and funds available from the other sources specified in the Project Budget will be sufficient to pay the estimated Project Costs, and (iii) during the first two Fiscal Years of the Borrower following completion of the Project, the projected Net Revenues Available for Debt Service will satisfy the rate covenant made by the Borrower in Section 5.1. In providing this certificate, the Consulting Engineer may take into consideration future System rate increases, provided that such rate increases have been duly approved by the governing body of the Borrower and any other person or entity required to give approval for the rate increase to become effective. In addition, the Consulting Engineer may take into consideration additional future revenues to be derived under existing contractual arrangements entered into by the Borrower and from reasonable estimates of growth in the consumer base of the Borrower. (e) Evidence satisfactory to the Authority that all governmental permits or approvals for the Project required to have been obtained as of the date of the delivery of this Agreement have been obtained and a statement of the Consulting Engineer that he knows of no reason why any future required governmental permits or approvals cannot be obtained as needed. (f) Evidence satisfactory to the Authority that the Borrower has obtained or has made arrangements satisfactory to the Authority to obtain any funds or other financing for the Project as contemplated in the Project Budget. (g) Evidence satisfactory to the Authority that the Borrower has performed and satisfied all of the terms and conditions contained in this Agreement to be performed and satisfied by it as of such date. (h) A certificate of the Consulting Engineer as to the date the Borrower is expected to complete the acquisition, construction and equipping of the Project. (i) An Opinion of Counsel, substantially in the form of Exhibit D, addressed to the Fund and the Authority. (j) Evidence satisfactory to the Authority that the Borrower has complied with the insurance provisions set forth in Sections 9.1 and 9.2 hereof. (k) Evidence satisfactory to the Authority that the Local Bond will be issued on a parity basis with the Existing Parity Indebtedness. (1) Such other documentation, certificates and opinions as the Authority may reasonably require. - 7 AI~T~CLE ~V USE OF LOCAL BOND PROCEEDS AND CONSTRUCTION OF PROJECT Section 4.1. Application of Proceeds. (a) The Borrower agrees to apply the Local Bond Proceeds solely and exclusively to the payment, or the reimbursement of the Borrower for the payment, of Project Costs and further agrees to exhibit to the Department or the Authority receipts, vouchers, statements, bills of sale or other evidence of the actual payment of such Project Costs. The Authority shall disburse money from the Fund to or for the account of the Borrower not more frequently than once each calendar month (unless otherwise agreed by the Authority and the Borrower) upon receipt by the Authority (with a copy to be furnished to the Department) of the following: (1) A requisition (upon which the Authority shall be entitled to rely) signed by an Authorized Representative and containing all information called for by, and otherwise being in the form of, Exhibit E to this Agreement; (2) If any requisition includes an item for payment for labor or to contractors, builders or materialmen, (i) a certificate, signed by the Consulting Engineer, stating that such work was actually performed or such materials, supplies or equipment were actually furnished or installed in or about the construction of the Project; and (ii) a certificate, signed by an Authorized Representative, stating either that such materials, supplies or equipment are not subject to any lien or security interest or that such lien or security interest will be released or discharged upon payment of the requisition. Upon receipt of each such requisition and accompanying certi- ficate or certificates and approval thereof by the Department, the Authority shall disburse Local Bond Proceeds hereunder to or for the account of the Borrower in accordance with such requisition in an amount and to the extent approved by the Department and shall note the date and amount of each such disbursement on a schedule of principal disbursements to be included on the Local Bond. The Authority shall have no obligation to disburse any such Local Bond Proceeds if the Borrower is in default hereunder nor shall the Department have any obligation to approve any requisition if the Borrower is not in compliance with the terms of this Agreement. The Borrower shall deposit disbursements in the Construction Fund (as defined in the Master Bond Resolution) to be utilized as - 8 - described in Article V of the Master Bond Resolution and Section 3.307 of the Third Supplemental Bond Resolution. (b) The Borrower shall comply with all applicable State laws, including but not limited to, the Virginia Public Procure- ment Act, as amended, regarding the awarding and performance of public construction contracts. Except as may otherwise be approved by the Department, disbursements shall be held at ninety- five percent (95%) of the maximum authorized amount of the Local Bond to ensure satisfactory completion of the Project. Upon receipt from the Borrower of the certificate specified in Section 4.2 and a final requisition detailing all retainages to which the Borrower is then entitled, the Authority, to the extent approved by the Board and subject to the provisions of this Section and Section 4.2, will disburse to or for the account of the Borrower Local Bond Proceeds to the extent of such approval. The Authority shall have no obligation to disburse Local Bond Proceeds in excess of the amount necessary to pay for approved Project Costs. If principal disbursements up to the maximum authorized amount of the Local Bond are not made, principal installments due on the Local Bond shall be reduced in accordance with Section 6.1. Section 4.2. Agreement to Accomplish Project. The Borrower agrees to cause the Project to be acquired, constructed, expanded, renovated or equipped as described in Exhibit B and in accordance with the Project Budget and the plans, specifications and designs prepared by the Consulting Engineer and approved by the Depart- ment. The Borrower shall use its best efforts to complete the Project by the date set forth in the certificate provided to the Authority pursuant to Section 3.2(h). Ail plans, specifications and designs shall be approved by all applicable regulatory agencies. The Borrower agrees to maintain complete and accurate books and records of the Project Costs and permit the Authority and the Department through their duly authorized representatives to inspect such books and records at any reasonable time. The Borrower and the Authority, with the consent of the Department, may amend the description of the Project set forth in Exhibit B. When the Project has been completed, the Borrower shall promptly deliver to the Authority and the Department a certificate signed by an Authorized Representative of the Borrower and by the Consulting Engineer stating (i) that the Project has been completed substantially in accordance with this Section, the plans and specifications as amended from time to time, as approved by the Department, and in substantial compliance with all material applicable laws, ordinances, rules and regulations, (ii) the date of such completion, (iii) that all certificates of occupancy or other material permits necessary for the Project's use, occupancy and operation have been issued or obtained, and (iv) the amount, if any, to be reserved for payment of Project Costs. - 9 Section 4.3. Permits. The Borrower, at its sole cost and expense, shall comply with, and shall obtain all permits, consents and approvals required by local, state or federal laws, ordinances, rules, regulations or requirements in connection with the acquisition, construction, equipping, occupation, operation or use of the Project. The Borrower shall, upon request, promptly furnish to the Authority and the Department copies of all such permits, consents and approvals. The Borrower shall also comply with all lawful program or procedural guidelines or requirements duly promulgated and amended from time to time by the Department in connection with the acquisition, construction, equipping, occupation, operation or use of projects financed by the Fund under the Act including, but not limited to, those pertaining to the adoption of any requisite sewer use ordinance and compliance with the Performance Standards in the operation of the Project. The Borrower shall also comply in all respects with all applicable federal laws, regulations and other requirements relating to or arising out of or in connection with the Project and the funding thereof by the Fund, including, but not limited to, the federal "crosscutting" requirements identified in Schedule A of the Commitment Letter. Section 4.4. Construction Contractors. Each construction contractor employed in the accomplishment of the Project shall be required in the construction contract to furnish a performance bond and a payment bond each in an amount equal to one hundred percent (100%) of the particular contract price. Such bonds shall list the Borrower, the Fund, the Authority, the Department and the Board as beneficiaries. Each contractor shall be required to maintain during the construction period covered by the particular construction contract builder's risk insurance, workers' compensa- tion insurance, public liability insurance, property damage insurance and vehicle liability insurance in amounts and on terms satisfactory to the Consulting Engineer. Upon request of the Authority, the Department and the Board, the Borrower shall cause each contractor to furnish evidence of such bonds and insurance to the Authority, the Department or the Board. Section 4.5. Engineering Services. The Borrower shall retain a Consulting Engineer to provide engineering services covering the operation of the System and the supervision and inspection of the construction of the Project. The Consulting Engineer shall certify to the Fund, the Authority and the Department as to the various stages of the completion of the Project as disbursements of Local Bond Proceeds are requested and shall upon completion of the Project provide to the Fund, the Authority and the Board the certificates required by Sections 4.1 and 4.2. Section 4.6. Borrower Required to Complete Project. If the Local Bond Proceeds are not sufficient to pay in full the cost of the Project, the Borrower will complete the Project at its own - 10 expense and shall not be entitled to any reimbursement therefor from the Fund, the Authority, the Department or the Board or any abatement, diminution or postponement of the Borrower's payments under the Local Bond or this Agreement. ARTICLE V PLEDGE, REVENUES AND RATES Section 5.1. Pledge of Revenues. Subject to the Borrower's right to make application of Revenues as set forth in Sections 604 and 615 of the Master Bond Resolution, the Revenues are hereby pledged to the Fund to secure the payment of the principal of and interest on the Local Bond and the payment and performance of the Borrower's obligations under this Agreement as set forth in Section 615 of the Master Bond Resolution. This pledge shall be valid and binding from and after the execution and delivery of this Agreement. The Revenues, as received by the Borrower, shall immediately be subject to the lien of this pledge without any physical delivery of them or further act. The lien of this pledge of the Revenues is on a parity with the lien of the pledge securing the Existing Parity Bonds. The lien of this pledge shall, subject to the right of the Borrower to make application of Revenues as set forth in the Master Bond Resolution, have priority over all other obligations and liabilities of the Borrower, and the lien of this pledge shall be valid and binding against all parties having claims of any kind against the Borrower regardless of whether such parties have notice of this pledge. (a) The Borrower covenants and agrees that it will comply with the revenue covenant contained in Section 601 of the Master Bond Resolution. (b) Within one hundred and twenty (120) days after the close of each Fiscal Year, the Borrower shall deliver to the Authority a certificate of the Consulting Engineer, an independent certified public accountant or other consultant reasonably acceptable to the Authority to the effect that (i) during the preceding Fiscal Year, the Borrower satisfied the rate covenant made by the Borrower in subsection (a) of this Section, or, if not, the amount of the deficiency in Net Revenues Available for Debt Service which existed and the rates, fees and other charges which must be established by the Borrower to cure such deficiency, and (ii) during the Fiscal Year in which the certificate is delivered, the projected Revenues will satisfy the revenue covenant made by the Borrower in Section 601 of the Master Bond Resolution, or, if not, the rates, fees and other charges the Borrower must establish to satisfy such rate covenant. (c) On or before the last day of each Fiscal Year, the Borrower shall review the adequacy of its rates, fees and other - 11 - charges for the next Fiscal Year, and, if such review indicates the Borrower's rates, fees and other charges are insufficient to satisfy the rate covenant in subsection (a) of this Section, the Borrower shall promptly take appropriate action to increase its rates, fees and other charges or reduce its Operations and Maintenance Expense to cure any deficiency. Section 5.2. Annual Budget. The Borrower shall furnish a copy of the Annual Operating Budget (as defined in the Master Bond Resolution) and the capital expenditures budget for the System and any amendments or supplements thereto to the Authority promptly upon their preparation and otherwise comply with the provisions of Section 602 of the Master Bond Resolution. ARTICLE VI PAYMENTS Section 6.1. Payment of Local Bond. The Local Bond shall be dated the date of its delivery to the Fund and shall bear interest on the disbursed principal balance thereof at the rate of four and one-half percent (4.50%) per annum from the date of each disbursement. Interest only on all amounts disbursed under the Local Bond shall be due and payable on December 1, 1995. Commencing June 1, 1996, and continuing semi-annually thereafter on June 1 and December i in each year, principal and interest due under the Local Bond shall be payable in equal installments of $ , with a final installment of $ due and payable on June 1, 2015. Such semi-annual installments shall continue, unless all amounts due hereunder and under the Local Bond are sooner paid, until June 1, 2015, when all amounts due hereunder and under the Local Bond shall be due and payable in full. If principal disbursements up to the maximum authorized amount of the Local Bond are not made, the principal amount due on the Local Bond shall not include such undisbursed amount. However, unless the Borrower and the Authority agree otherwise in writing, until all amounts due hereunder and under the Local Bond shall have been paid in full, less than full disbursement of the maximum authorized amount of the Local Bond shall not postpone the due date of any semi-annual installment due on the Local Bond, or change the amount of such installment. If any installment of principal of or interest on the Local Bond is not paid within ten (10) days after its due date, the Borrower agrees to pay to the Fund a late payment charge in an amount equal to five percent (5.0%) of the overdue installment. Section 6.2. Payment of Additional Payments. In addition to the payments of principal and interest on the Local Bond, the Borrower agrees to pay on demand of the Fund the following Additional Payments: 12 (1) The costs of the Fund, the Authority, the Department or the Board in connection with the enforcement of this Agreement, including the reasonable fees and expenses of any attorneys used by any of them; and (2) Ail expenses, including reasonable attorneys' fees, relating to any amendments, waivers, consents or collection or enforcement proceedings pursuant to the provisions hereof. The Borrower agrees to pay interest on any Additional Payments enumerated in (1) or (2) above not received by the Fund within ten (10) days after demand therefor at a rate of five percent (5.0%) per annum of the overdue installment from its due date until the date it is paid. ARTICLE VII PREPAYMENTS Section 7.1. Prepayment of Local Bond. At its option and after giving at least ten (10) days' written notice to the Authority, the Borrower may prepay the Local Bond at any time, in whole or in part and without penalty. Such written notice shall specify the date on which the Borrower will make such prepayment and whether the Local Bond will be prepaid in full or in part, and if in part, the principal amount to be prepaid. Any such partial prepayment shall be applied against the principal amount outstanding under the Local Bond but shall not postpone the due date of any subsequent payment on the Local Bond, or change the amount of such installment, unless the Borrower and the Authority agree otherwise in writing. ARTICLE VIII OPERATION AND USE OF SYSTEM Section 8.1. Maintenance. At its own cost and expense, the Borrower shall operate the System in a proper, sound and economical manner and in compliance with all legal requirements, shall maintain the System in good repair and operating condition and from time to time shall make all necessary repairs, renewals and replacements. Section 8.2. Additions and Modifications. At its own expense, the Borrower from time to time may make any additions, modifications or improvements to the System which it deems desirable and which do not materially reduce the value of the System or the structural or operational integrity of any part of - 13 - the System, provided that all such additions, modifications or improvements comply with all applicable federal, state and local laws, rules, regulations, orders, permits, authorizations and requirements. All such renewals, replacements, additions, modifications and improvements shall become part of the System. Section 8.3. Use of System. The Borrower shall comply with all lawful requirements of any governmental authority regarding the System, whether now existing or subsequently enacted, whether foreseen or unforeseen or whether involving any change in govern- mental policy or requiring structural, operational and other changes to the System, irrespective of the cost of making the same. Section 8.4. Inspection of System and Borrower's Books and Records. The Authority and the Department and their duly authorized representatives and agents shall have such reasonable rights of access to the System as may be necessary to determine whether the Borrower is in compliance with the requirements of this Agreement and shall have the right at all reasonable times and upon reasonable prior notice to the Borrower to examine and copy the books and records of the Borrower insofar as such books and records relate to the System. Section 8.5. Ownership of Land. The Borrower shall not construct, reconstruct or install any part of the Project on lands other than those which the Borrower owns or can acquire title to or a perpetual easement over, in either case sufficient for the Borrower's purposes, unless such part of the Project is lawfully located in a public street or highway or is a main, conduit, pipeline, main connection or facility located on land in which the Borrower has acquired a right or interest less than a fee simple or perpetual easement and such lesser right or interest has been approved by written opinion of counsel to the Borrower as sufficient for the Borrower's purposes. Section 8.6. Sale or Encumbrance. No part of the System shall be sold, exchanged, leased, mortgaged, encumbered or otherwise disposed of except as provided in Section 807 of the Master Bond Resolution. Section 8.7. Collection of Revenues. The Borrower shall use its best efforts to collect all rates, fees and other charges due to it and shall perfect liens on premises served by the System for the amount of all delinquent rates, fees and other charges where such action is permitted by law. The Borrower shall, to the full extent permitted by law, discontinue and shut off, or cause to be discontinued and shut off, services and facilities of the System, and use its best efforts to cause to be shut off water service furnished otherwise than through the System, to customers of the System who are delinquent beyond any customary grace periods in the payment of rates, fees and other charges due to the - 14 - Borrower. Section 8.8. No Free Service. The Borrower shall comply with Section 806(a) of the Master Bond Resolution. Section 8.9. No Competinq Service. The Borrower shall not provide, grant any franchise to provide or give consent for anyone else to provide, any services which would compete with the System except as provided in Section 806(b) of the Master Bond Resolution. Section 8.10. Mandatory Co~nection. To the extent permitted by law, the Borrower shall adopt and enforce rules and regulations, consistent with applicable laws, requiring the owner, tenant or occupant of each lot or parcel of land which is served or may reasonably be served by the System and upon which lot or parcel a building shall have been constructed for residential, commercial or industrial use, to connect such building to the System; provided, however, such rules and regulations may permit the continued use of private sewage disposal systems approved by the applicable board of health or health officer by any such building already in existence at the time the services of the System become available to it upon such conditions as may be specified in such rules and regulations or until such time as such approved private sewage disposal system shall cease to be approved or shall require major repairs to continue to be approved, at which time such building shall be required to connect to the System. Section 8.11. Lawful Charges. The Borrower shall pay when due all taxes, fees, assessments, levies and other governmental charges of any kind whatsoever (collectively, the "Governmental Charges") which are (i) assessed, levied or imposed against the System or the Borrower's interest in it, or (ii) incurred in the operation, maintenance, use and occupancy of the System. The Borrower shall pay or cause to be discharged, or shall make adequate provision to pay or discharge, all lawful claims and demands for labor, materials, supplies or other objects which, if unpaid, might by law become a lien upon all or any part of the System or the Revenues (collectively, the "Mechanics' Charges"). The Borrower, after giving the Authority ten (10) days' notice of its intention to do so, at its own expense and in its own name, may contest in good faith any Governmental Charges or Mechanics' Charges. If such a contest occurs, the Borrower may permit the same to remain unpaid during the period of the contest and any subsequent appeal. Upon request, the Borrower shall furnish to the Authority proof of payment of all Governmental Charges and the Mechanics' Charges required to be paid by the Borrower under this Agreement. Section 8.12. Performance Certification. Upon completion of the Project and its commencement of operation (the "Initiation of 15 Operation"), the Borrower shall promptly notify the Department. If the Borrower fails to so notify the Department, the Department may establish such date. During the year after the Initiation of Operation, the Borrower shall retain a Consulting Engineer to assist in the operation of the Project and the training of operating personnel, to revise the Borrower's operation and maintenance manual, as necessary, and to advise the Borrower if the Project is meeting the Performance Standards. One year from the Initiation of Operation, the Borrower shall submit to the Department a certificate as to whether the Performance Standards have been met. If the Department concludes that the Performance Standards have not been met, the Borrower shall submit within thirty (30) days of such date a report detailing (i) the reasons for the failure of the Project to meet the Performance Standards, (ii) the Borrower's plan for undertaking any necessary corrective action to cause the Project to meet the Performance Standards, and (iii) a schedule for completing any such corrective action, including the projected date for the submission of a certificate stating that the Performance Standards have been met. The Borrower shall then undertake such corrective action and any other action necessary to meet the Performance Standards. When the Project has met the Performance Standards, the Borrower shall so certify to the Department. For so long as the Performance Standards have not been met, the Borrower shall retain a Consulting Engineer, unless the Department shall agree otherwise in writing. ARTICLE IX INSURANCE, DAMAGE AND DESTRUCTION Section 9.1. Insurance. Unless the Authority otherwise agrees in writing, the Borrower continuously shall maintain or cause to be maintained insurance against such risks as are customarily insured against by public bodies operating systems similar in size and character to the System, including, without limitation: (a) Insurance in the amount of the full replacement cost of the System's insurable portions against loss or damage by fire and lightning, with broad form extended coverage endorsements covering damage by windstorm, explosion, aircraft, smoke, sprinkler leakage, vandalism, malicious mischief and such other risks as are normally covered by such endorsements (limited only as may be provided in the standard form of such endorsements at the time in use in Virginia); provided that during the construction of the Project, the Borrower may provide or cause to be provided, in lieu of the insurance in the amount of the full replacement cost of the Project, builders' risk or similar types of insurance in the amount of the full replacement cost thereof. The determination of replacement cost shall be made by a 16 recognized appraiser or insurer selected by the Borrower and reasonably acceptable to the Authority. (b) Comprehensive general liability insurance with a combined single limit of $1,000,000 per year against liability for bodily injury, including death resulting therefrom, and for damage to property, including loss of use thereof, arising out of the ownership, maintenance, operation or use of the System. (c) Unless the Borrower qualifies as a self-insurer under the laws of Virginia, workers' compensation insurance. The Authority shall not have any responsibility or obligation with respect to (i) the procurement or maintenance of insurance or the amounts or the provisions with respect to policies of insurance, or (ii) the application of the proceeds of insurance. Section 9.2. Requirements of Policies. (a) Ail insurance required by Section 9.1 shall be maintained with generally recognized, responsible insurance companies selected by the Borrower and reasonably acceptable to the Authority. Such insurance may be written with deductible amounts comparable to those on similar policies carried by other utility systems of like size and character to the System. If any such insurance is not maintained with an insurer licensed to do business in Virginia or placed pursuant to the requirements of the Virginia Surplus Lines Insurance Law (Chapter 48, Title 38.2, Code of Virginia of 1950, as amended) or any successor provision of law, the Borrower shall provide evidence reasonably satisfactory to the Authority that such insurance is enforceable under Virginia law. (b) In lieu of insurance written by commercial insurance companies, the City may maintain a program of self- insurance or participate in group risk financing programs, as and to the extent and subject to the requirements set forth in Section 808 of the Master Bond Resolution. (c) The Borrower shall provide no less often than annually and upon the written request of the Authority a certificate or certificates of the respective insurers evidencing the fact that the insurance required by Section 9.1 hereof is in force and effect. Section 9.3. Notice of Damage, Destruction and Condemna- tion. In the case of (i) any damage to or destruction of any material part of the System, (ii) a taking of all or any part of the System or any right therein under the exercise of the power of eminent domain, (iii) any loss of the System because of failure of title, or (iv) the commencement of any proceedings or negotiations which might result in such a taking or loss, the Borrower shall give prompt notice thereof to the Authority describing generally the nature and extent of such damage, destruction, taking, loss, - 17 proceedings or negotiations. Section 9.4. Damaqe and Destruction. If all or any part of the System is destroyed or damaged by fire or other casualty, and the Borrower shall not have exercised its option to prepay in full the Local Bond pursuant to Article VII hereof and Section 809 of the Master Bond Resolution, the Borrower shall restore promptly the property damaged or destroyed to substantially the same condition as before such damage or destruction, with such alterations and additions as the Borrower may determine and which will not impair the capacity or character of the System for the purpose for which it then is being used or is intended to be used. The Borrower will apply the Net Proceeds as set forth in Section 809 of the Master Bond Resolution. Section 9.5. Condemnation and Loss of Title. If title to or the temporary use of all or any part of the System shall be taken under the exercise of the power of eminent domain or lost because of failure of title, and the Borrower shall not have exercised its option to prepay in full the Local Bond pursuant to Article VII hereof and Section 809 of the Master Bond Resolution, the Borrower shall cause the Net Proceeds from any such condemna- tion award or from title insurance to be applied as set forth in Section 809 of the Master Bond Resolution. ARTICLE X SPECIAL COVENANTS Section 10.1. Maintenance of Existence. The Borrower shall maintain its existence as a "local government" (as defined in the Act) of the Commonwealth of Virginia and, without consent of the Authority and the Department, shall not dissolve or otherwise dispose of all or substantially all of its assets or consolidate or merge with or into another entity. Notwithstanding the foregoing, the Borrower may consolidate or merge with or into, or sell or otherwise transfer all or substantially all of its assets to a political subdivision of the Commonwealth of Virginia, and the Borrower thereafter may dissolve, if the surviving, resulting or transferee political subdivision, if other than the Borrower, assumes, in written form acceptable to the Authority and the Department, all of the obligations of the Borrower contained in the Local Bond and this Agreement, and there is furnished to the Authority and the Department an Opinion of Counsel acceptable to the Authority and the Department subject to customary exceptions and qualifications, to the effect that such assumption constitutes the legal, valid and binding obligation of the surviving, resulting or transferee political subdivision enforceable against it in accordance with its terms. Section 10.2. Financial Records and Statements; Reports. - 18 - (a) The Borrower shall maintain proper books of record and account in which proper entries shall be made in accordance with generally accepted government accounting standards, consistently applied, of all its business and affairs related to the System. The Borrower shall have an annual audit of the financial condition of the System made in accordance with the provisions of Section 810 of the Master Bond Resolution, and such audit shall be conducted in accordance with the provisions of the Single Audit Act of 1984, 31 U.S.C. §§ 7501 et seq., as amended, and the regulations promulgated thereunder, including OMB Circular No. A-128. The Borrower shall furnish to the Authority copies of such report immediately after it is submitted to the Borrower. The Borrower shall also furnish to the Authority a certificate of such accountant to the effect that, during the course of such accountant's regular examination of the Borrower's financial condition, nothing came to such accountant's attention that would constitute an Event of Default or a Default. (b) The Borrower shall furnish to the Authority a copy of the report required by Section 810(b) of the Master Bond Resolution upon receipt thereof. Section 10.3. Certificate as to No Default. The Borrower shall deliver to the Authority, within one hundred and twenty (120) days after the close of each Fiscal Year, a certificate signed by an Authorized Representative stating that, during such year and as of the date of such certificate, no event or condition has happened or existed, or is happening or existing, which constitutes an Event of Default or a Default, or if such an event or condition has happened or existed, or is happening or existing, specifying the nature and period of such event or condition and what action the Borrower has taken, is taking or proposes to take to rectify it. Section 10.4. Additional Indebtedness. The Borrower shall not incur any indebtedness or issue any bonds, notes or other evidences of indebtedness secured by a pledge of Revenues, except Subordinate Bonds or Parity Bonds. Section 10.5. Parity Bonds. Provided the Borrower is not in default hereunder, the Borrower may issue bonds, notes or other evidences of indebtedness ranking on parity with the Local Bond with respect to the pledge of Revenues ("Parity Bonds") as and to the extent and subject to the conditions set forth in Article III of the Master Bond Resolution. The Borrower shall give notice to the Authority of the issuance of such debt within 30 days of its issuance and provide a copy of the supplemental resolution authorizing the issuance of such debt. Section 10.6. Further Assurances. The Borrower shall to the - 19 - fullest extent permitted by law pass, make, do, execute, acknowl- edge and deliver such further resolutions, acts, deeds, conveyances, assignments, transfers and assurances as may be necessary or desirable for the better assuring, conveying, granting, assigning and confirming the rights, Revenues and other funds pledged or assigned by this Agreement, or as may be required to carry out the purposes of this Agreement. The Borrower shall at all times, to the fullest extent permitted by law, defend, preserve and protect the pledge of the Revenues and other funds pledged under this Agreement and all rights of the Authority, the Department and the Board under this Agreement against all claims and demands of all persons. Section 10.7. Other Indebtedness. The Borrower agrees to pay when due all amounts required by any other bonded indebtedness and to perform all of its obligations in connection therewith. Section 10.8. Assi.qnment by Borrower. The Borrower may not assign its rights under this Agreement without the prior written consent of the Authority and the Department. If the Borrower desires to assign its rights under this Agreement to another "local government" (as defined in the Act), the Borrower shall give notice of such fact to the Authority and the Department. If the Authority and the Department consent to the proposed assign- ment, the Borrower may proceed with the proposed assignment, but such assignment shall not become effective until the Authority and the Department are furnished (i) an assumption agreement in form and substance satisfactory to the Authority and the Department by which the assignee agrees to assume all of the Borrower's obliga- tions under the Local Bond and this Agreement, and (ii) an Opinion of Counsel to the assignee, subject to customary exceptions and qualifications, that the assumption agreement, the Local Bond and this Agreement constitute legal, valid and binding obligations of the assignee enforceable against the assignee in accordance with their terms and that the assignment and assumption comply in all respects with the provisions of this Agreement. Notwithstanding the foregoing, the assignment of the rights of the Borrower under the Local Bond and this Agreement or the assumption of the obligations thereunder by the assignee shall in no way be construed as releasing the Borrower's obligations. Section 10.9. Compliance with Master Bond Resolution. The Borrower shall comply with all material provisions of the Master Bond Resolution and furnish to the Authority a copy of any amendments or supplements to it promptly upon the execution and delivery thereof. ARTICLE XI DEFAULTS AND REMEDIES - 20 - Section 11.1. Events of Default. events shall be an "Event of Default": Each of the following (a) The failure to pay when due any payment of principal or interest due hereunder or to make any other payment required to be made under the Local Bond or this Agreement; (b) The Borrower's failure to perform or observe any of the other covenants, agreements or conditions of the Local Bond or this Agreement and the continuation of such failure for a period of sixty (60) days after the Authority gives the Borrower written notice specifying such failure and requesting that it be cured, unless the Authority shall agree in writing to an extension of such time prior to its expiration; provided, however, if the failure stated in the notice is correctable but cannot be corrected within the applicable period, the Authority will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by the Borrower within the applicable period and diligently pursued until the Default is corrected; (c) Any warranty, representation or other statement by or on behalf of Borrower contained in this Agreement or in any instrument furnished in compliance with or in reference to this Agreement or in connection with the issuance and sale of the Local Bond is false or misleading in any material respect; (d) The occurrence of a default by the Borrower under the terms of any Subordinate Bonds, Parity Bonds, Existing Parity Bonds or Prior Bonds and the failure to cure such default or obtain a waiver thereof within any period of time permitted thereunder; (e) An order or decree shall be entered, with the Borrower's consent or acquiescence, appointing a receiver or receivers of the System or any part thereof or of the Revenues thereof, or if such order or decree, having been entered without the Borrower's consent or acquiescence, shall not be vacated, discharged or stayed on appeal within sixty (60) days after the entry thereof; (f) Any proceeding shall be instituted, with the Borrower's consent or acquiescence, for the purpose of effecting a composition between the Borrower and its creditors or for the purpose of adjusting the claims of such creditors, pursuant to any federal or state statute now or hereafter enacted, if the claims of such creditors are under any circumstances payable from Revenues; or (g) Any bankruptcy, insolvency or other similar proceeding shall be instituted by or against the Borrower under any federal or state bankruptcy or insolvency law now or herein- - 21 after in effect and, if instituted against the Borrower, is not dismissed within sixty (60) days after filing. Section 11.2. Notice of Default. The Borrower agrees to give the Authority prompt written notice if any order, decree or proceeding referred to in Section 11.1(e), (f) or (g) is entered or instituted against the Borrower or of the occurrence of any other event or condition which constitutes a Default or an Event of Default immediately upon becoming aware of the existence thereof. Section 11.3. Remedies on Default. Whenever any Event of Default referred to in Section 11.1 shall have happened and be continuing, the Authority shall, in addition to any other remedies provided herein or by law, including rights specified in Section 62.1-228 of the Act, have the right, at its option without any further demand or notice, to take one or both of the following remedial steps: (a) Declare immediately due and payable all payments due or to become due on the Local Bond and under this Agreement, and upon notice to the Borrower, the same shall become immediately due and payable by the Borrower without further notice or demand; and (b) Take whatever other action at law or in equity may appear necessary or desirable to collect the payments then due and thereafter to become due on the Local Bond and under this Agreement or to enforce any other of the Fund's, the Authority's, the Department's or the Board's rights under this Agreement or to enforce performance by the Borrower of its covenants, agreements or undertakings contained herein or in the Local Bond. Section 11.4. Delay and Waiver. No delay or omission to exercise any right or power accruing upon any Default or Event of Default shall impair any such right or power or shall be construed to be a waiver of any such Default or Event of Default or acquiescence therein, and every such right or power may be exercised from time to time and as often as may be deemed expedient. No waiver of any Default or Event of Default under this Agreement shall extend to or shall affect any subsequent Default or Event of Default or shall impair any rights or remedies consequent thereto. ARTICLE XII MISCELLANEOUS Section 12.1. Successors and Assigns. This Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. o 22 - Section 12.2. Amendments. The Authority and the Borrower, with the written consent of the Department, shall have the right to amend from time to time any of the terms and conditions of this Agreement, provided that all amendments shall be in a writing and shall be signed by or on behalf of the Authority and the Borrower. Section 12.3. L~mitation of Borrower's Liability. Notwithstanding anything in the Local Bond or this Agreement to the contrary, the Borrower's obligations are not its general obligations, but are limited obligations payable solely from the Revenues which are specifically pledged for such purpose. Neither the Local Bond nor this Agreement shall be deemed to create or constitute a debt or a pledge of the faith and credit of the Borrower and the Borrower shall not be obligated to pay the principal of or interest on the Local Bond or other costs incident thereto except from the Revenues and other funds pledged therefor. In the absence of fraud, no present or future director, official, officer, employee or agent of the Borrower shall be liable personally in respect of this Agreement or the Local Bond or for any other action taken by such individual pursuant to or in connection with the financing provided for in this Agreement or the Local Bond. Section 12.4. Applicable Law. This Agreement shall be governed by the applicable laws of Virginia. Section 12.5. Severability. If any clause, provision or section of this Agreement shall be held illegal or invalid by any court, the illegality or invalidity of such clause, provision or Section shall not affect the remainder of this Agreement which shall be construed and enforced as if such illegal or invalid clause, provision or section had not been contained in this Agreement. If any agreement or obligation contained in this Agreement is held to be in violation of law, then such agreement or obligation shall be deemed to be the agreement or obligation of the Fund and the Borrower, as the case may be, only to the extent permitted by law. Section 12.6. Notice~. Unless otherwise provided for herein, all demands, notices, approvals, consents, requests, opinions and other communications under the Local Bond or this Agreement shall be in writing and shall be deemed to have been given when delivered in person or mailed by first class registered or certified mail, postage prepaid, addressed as follows: Fund: Virginia Water Facilities Revolving Fund c/o Virginia Resources Authority P. O. Box 1417 Richmond, VA 23211 Attention: Executive Director Authority: Virginia Resources Authority - 23 P. O. Box 1300 Richmond, VA 23210 Attention: Executive Director Department and Board: State Water Control Board Department of Environmental Quality P. O. Box 10009 Richmond, VA 23240-0009 Attention: Executive Director Borrower: City of Virginia Beach, Virginia Municipal Center Virginia Beach, VA 23456 Attention: City Manager A duplicate copy of each demand, notice, approval, consent, request, opinion or other communication given by any party named in this Section shall also be given to each of the other parties named. The Authority, the Department, the Board and the Borrower may designate, by notice given hereunder, any further or different addresses to which subsequent demands, notices, approvals, consents, requests, opinions or other communications shall be sent or persons to whose attention the same shall be directed. Section 12.7. Right to Cure Default. If the Borrower shall fail to make any payment or to perform any act required by it under the Local Bond or this Agreement, the Authority without prior notice to or demand upon the Borrower and without waiving or releasing any obligation or default, may (but shall be under no obligation to) make such payment or perform such act. Ail amounts so paid by the Authority and all costs, fees and expenses so incurred shall be payable by the Borrower as an additional obligation under this Agreement, together with interest thereon at the rate of interest of five percent (5.0%) per annum until paid. The Borrower's obligation under this Section shall survive the payment of the Local Bond. Section 12.8. Headings. The headings of the several articles and sections of this Agreement are inserted for convenience only and do not comprise a part of this Agreement. Section 12.9. Term of Aqreement. This Agreement shall be effective upon its execution and delivery, provided that the Local Bond previously or simultaneously shall have been executed and delivered. Except as otherwise specified, the Borrower's obligations under the Local Bond and this Agreement shall expire upon payment in full of the Local Bond and all other amounts payable by the Borrower under this Agreement. o 24 - Section 12.10. Co---itment L~t~er. The Commitment Letter is an integral part of this Agreement and shall survive closing hereunder. Section 12.11. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which together shall constitute but one and the same instrument. WITNESS the following signatures, all duly authorized. VIRGINIA WATER FACILITIES REVOLVING FUND By: Virginia Resources Authority, Administrator By: Shockley D. Gardner, Jr., Executive Director CITY OF VIRGINIA BEACH, VIRGINIA By: ItS: - 25 EXHIBIT A Form of Loc&i Bond [To come from Borrower's Bond Counsel] EXH'rB?T B Project Description City of Virginia Beach, Virginia C-515138-02 [To be completed] Bol EXHiBiT C Pro~ect Budget City of Virginia Beach, Virginia C-515138-02 Cost Category [Legal Engineering Construction Deposit to Reserve Fund Contingency TOTAL ........... Amount $ [To be completed] EXHIBIT D Opinion of Borrower's Bond Counsel [To come from Borrower's Bond Counsel] EXH~'B'rT E Form of Requisition City of Virginia Beach, Virginia C-515138-02 [LETTERHEAD OF BORROWER] [Date] Donald W. Wampler, Program Manager Construction Assistance Program Office of Water Resources Management Department of Environmental Quality P. O. Box 11143 Richmond, Virginia 23230 Re: City of Virginia Beach, Virginia Loan No. C-515138-02 Dear Mr. Wampler: This requisition, Number , is submitted in connection with the Financing Agreement dated as of 1, 1994 (the "Financing Agreement"), between the Virginia Water Facilities revolving Fund, also known as the Virginia Revolving Loan Fund (the "Fund") and the City of Virginia Beach, Virginia (the "Borrower"). Unless otherwise defined in this requisition, all capitalized terms used herein shall have the meaning set forth in Article I of the Financing Agreement. The undersigned authorized Representative of the Borrower hereby requests disbursement of loan proceeds under the Financing Agreement in the amount of $ , for the purposes of payment of the Project Costs as set forth in Schedule 1 attached hereto. Attached hereto are invoices relating to the items for which payment is requested. The undersigned certifies that (a) the amounts requested by the requisition will be applied solely and exclusively to the payment, or the reimbursement of the Borrower for the payment of Project Costs, and (b) any materials, supplies or equipment covered by this requisition are not subject to any lien or security interest or such lien or security interest will be released upon payment of the requisition. This requisition includes an accompanying Certificate of the Consulting Engineer as to the performance of the work. Very truly yours, By: Its: Attachments cc: Mr. Charles L. Massie VRA S-2 - CERTIFICATE OF THE CONSULTING ENGINEER FORM TO ACCOMPANY REQUEST FOR DISBURSEMENT This Certificate is submitted in connection with Requisition Number , dated , 19__, submitted by the City of Virginia Beach, Virginia (the "Borrower") to the Virginia Water Facilities Revolving Fund. Capitalized terms used herein shall have the same meanings set forth in Article I of the Financing Agreement referred to in the Requisition. The undersigned Consulting Engineer for the Borrower hereby certifies to the Virginia Water Facilities Revolving Fund that, insofar as the amounts covered by. this Requisition include payments for labor or to contractors, builders or materialmen, such work was actually performed or such materials, supplies or equipment were actually furnished to or installed in the Project. [Consulting Engineer] By: Date: ~ 0 0 0 0 EXHiBiT F Prior Bonds and Existing Parity Bonds City of Virginia Beach, Virginia C-515138-02 Prior Bonds. None. Existing Parity Bonds. $ 3,000,000 Revenue Bonds, 1977 (P. A. Corp.); $ 5,100,000 Water and Sewer Revenue Notes, 1977 (P. A. Corp.); $ 2,000,000 Drought Relief Revenue Bond, 1978; $ 2,200,000 Water and Sewer Revenue Notes, 1982 (County Utilities); $ 1,800,000 Water and Sewer Revenue Notes, 1982 (Kempsville Utilities); $19,975,000 Water and Sewer System Revenue Bonds, Series of 1992; $46,440,000 Water and Sewer Revenue and Refunding Bonds, Series of 1993. (Total aggregate outstanding balance as of November 1, 1994: $ .) [To be completed/verified] o F-1 EXHIBIT PerEormance S2&nd&rds C-515138-02 Listed below are the Project Performance Standards for the City of Virginia Beach, Virginia Project: PARAMETER LIMITATION/SPECIFICATION [To come from Department of Environmental Quality] EXH?B?T H Pending Litigation City of Virginia Beach, Virginia C-515138-02 [to come, to include (if necessary) pending litigation re Gaston, etc., from most recent Va. Beach O.S.] H-1 AN ORDINANCE TO TRANSFER FUNDS BETWEEN WATER AND SEWER CAPITAL PROJECTS TO ALLOW CLOSING OF A LOAN FROM THE VIRGINIA REVOLVING LOAN FUND 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 WHEREAS, on June 28, 1994 City Council approved a resolution authorizing the City Manager to execute a commitment letter for a $1,585,000 loan from the Virginia Revolving Loan Fund to be used for the construction of two sewer projects, #6-006 Grayson/Bonney Rd. and #6-008 Dozier's Bridge; WHEREAS, funding by the Virginia Revolving Loan Fund is an alternative to revenue bond funding and will result in lower interest costs; WHEREAS, in order to be financed by the revolving loan fund, the projects must have debt financing, (i.e., revenue bonds), equal to or greater than the loan amounts; WHEREAS, for the loan closing to occur, it will be necessary to change funding sources between water and sewer projects to increase the amount of revenue bond funding for the Grayson/Bonney Rd. and Dozier's Bridge projects, and reduce the amount of water and sewer funding for these projects. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That funding sources for water and sewer projects be transferred as shown below to allow closing of a loan from the Virginia Revolving Loan Fund: Transfer From: 6-947 Homestead 1,026,439 Transfer To: 6-006 Grayson/Bonney Rd. + 295,000 6-008 Dozier's Bridge + 731,439 27 28 29 3O 31 32 33 34 35 W~t~.r ~nd ~-w~.r FHnH: Transfer From: 6-006 Grayson/Bonney Rd. 295,000 6-008 Dozier's Bridge 731,439 Transfer To: 6-947 Homestead + 1,026,439 This ordinance shall be effective on the date of its adoption. Adopted by the Council of the City of Virginia Beach, Virginia on the 8 day of November , 1994. Approved as to Content -17- Item III-H.2. CONSENT AGENDA ITEM # 38.547 Upon motion by Councilman Harrison, seconded by Councilman Dean, City Council ADOPTED: Ordinance to authorize acquisition of property in fee simple for drainage improvements at Rosemont Road/Windsor Woods (CIP 2-115); and, acquisition of temporary and permanent easements of right-of-way, either by agreement or condemnation (LYNNHAVEN BOROUGH). Voting: 11-0 Council Members Voting Aye: John A. Baum, Linwood O. Branch, III, Robert IC Dean, William W. Harrison, Jr., Barbara M. Henley, Louis R. Jones, John D. Moss, Mayor Meyera E. Oberndorf, Nancy IC Parker, Vice Mayor William D. Sessoms, Jr., and Louisa M. Strayhorn Council Members Voting Nay: None Council Members Absent: None This item was voted upon after the PLANNING AGENDA 0:55 P.M.). November 8, 1994 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 AN ORDINANCE TO AUTHORIZE ACQUISITION OF PROPERTY IN FEE SIMPLE FOR DRAINAGE IMPROVEMENTS FOR ROSEMONT ROAD/WINDSOR WOODS DRAINAGE, CIP 2-115 AND THE ACQUISITION OF TEMPORARY AND PERMANENT EASEMENTS OF RIGHT OF WAY, EITHER BY AGREEMENT OR CONDEMNATION WHEREAS, in the opinion of the Council of the City of Virginia Beach, Virginia, a public necessity exists for the construction of these important drainage improvements for the preservation of the safety, health, peace, good order, comfort, convenience, and for the welfare of the people in the City of Virginia Beach: NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: Section 1. That the City Council authorizes the acquisition by purchase or condemnation pursuant to Sections 15.1- 236, et seq., 15.1-898, 15.1-899, and Title 25-46.1 et seq., Code of Virginia of 1950, as amended, all that certain real property in fee simple, including temporary and permanent easements for drainage improvements as shown on the location map entitled "ROSEMONT RD. WINDSOR WOODS DRAINAGE C.I.P. #2-115 SCALE: 1" = 1600'," this map is on file in the Office of Real Estate Department of Public Works, Virginia Beach, Virginia. Section 2. That the City Manager is hereby authorized to make or cause to be made on behalf of the City of Virginia Beach, to the extent that funds are available, a reasonable offer to the owners or persons having an interest in said lands. If refused, the City Attorney is hereby authorized to institute proceedings to condemn said property. Adopted by the Council of the City of Virginia 8 day of Beach, Virginia, on the CA-5725 (R-l) NONCODE\CA5725.ORD November , 1994. A~ROVED AS TO CONTENTS 6/ SIGNATURE - DEPARTMENT - 18 - Item III-H.3. CONSENT AGENDA ITEM # 38548 Upon motion by Vice Mayor Sessoms, seconded by Councilman Branch, City Council ADOPTED: Ordinance to authorize the City Manager to execute an Exchange of Land with Williams Holding Corporation to facilitate the construction of a public-use golf course on City-owned property on Seaboard Road. Voting: 6-5 Council Members Voting Aye: John A. Baum, Linwood O. Branch, III, William W. Harrison, Jr., Louis 1~ Jones, Vice Mayor William D. Sessoms, Jr., and Louisa M. Strayhorn Council Members Voting Nay: Robert K, Dean, Barbara M. Henley, John D. Moss, Mayor Meyera E. Oberndorf and Nancy K. Parker Council Members Absent: None November 8, 1994 1 2 3 4 5 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN EXCHANGE OF LAND WITH WILLIAMS HOLDING CORPORATION TO FACILITATE THE CONSTRUCTION OF A GOLF COURSE ON CITY- OWNED PROPERTY ON SEABOARD ROAD 6 7 WHEREAS, the City acquired property for the development of a golf course to be located along Seaboard Road; and 8 9 10 WHEREAS, Council authorized the City Manager to invite bids for a 30-year lease with a 10-year renewal option for the construction, maintenance, and operation of an 18- hole public-use golf facility at this site; and 11 12 WHEREAS, after the bids were received and evaluated, the bid submitted by Brassie Golf Corporation was selected by Council as being in the City's best interest; and 13 14 15 16 WHEREAS, during the golf course design process, the City, Brassie Golf Corporation, and William's Holding Corporation, as the contiguous residential developer, have determined that the optimal golf course configuration may be achieved through an exchange of like properties between the City and Williams Holding Corporation as referenced on the attached exhibit; 17 18 19 20 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA, that the City Manager is authorized to effect an exchange of land between the City and Williams Holding Corporation as referenced on the attached exhibit. 21 22 Adopted by the Council of the City of Virginia Beach, Virginia on the of November , 1994. l~dbrass 8 day - 19 - Item III-H.4. CONSENT AGENDA ITEM # 38549 Upon motion by Vice Mayor Sessoms, seconded by Council Lady Strayhorn, City Council ADOPTED: Ordinance to authorize a temporary encroachment into a portion of the right-of-way of Indian River Road to the Christian Broadcasting Network, Inc., re maintaining a commercial sign (KEMPSVILLE BOROUGH) The following conditions shall be required: 1. The owner agrees to remove the encroachment when notified by the City of Virginia Beach, at no expense to the City. 2. The owner agrees to keep and hold the City free and harmless of any liability as a result of the encroachment. 3. The owner agrees to maintain said encroachment so as not to become unsightly or a hazard. Voting: 11-0 Council Members Voting Aye: John A. Baum, Linwood O. Branch, III, Robert K. Dean, William Harrison, Jr., Barbara M. Henley, Louis 1~ Jones, John D. Moss, Mayor Meyera E. Oberndo~ Nancy I~ Parker, Vice Mayor ~illiam D. Sessorns, Jr., and Louisa M. Strayhorn Council Members Voting Nay: None Council Members Absent: None November 8, 1994 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 29 3O 31 32 33 34 35 36 37 38 39 4O 41 42 43 44 AN ORDINANCE TO AUTHORIZE A TEMPORARY ENCROACHMENT INTO A PORTION OF THE RIGHT-OF-WAY OF INDIAN RIVER ROAD TO THE CHRISTIAN BROADCASTING NETWORK, INC., ITS HEIRS, ASSIGNS AND SUCCESSORS IN TITLE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That pursuant to the authority and to the extent thereof contained in Section 15.1-893, Code of Virginia, 1950, as amended, The Christian Broadcasting Network, Inc., its heirs, assigns and successors in title is authorized to maintain a temporary encroachment into the right-of-way of Indian River Road. That the temporary encroachment herein authorized is for the purpose of maintaining a commercial sign and that said encroachment shall be constructed and maintained in accordance with the City of Virginia Beach Public Works Department's specifications as to size, alignment and location, and further that such temporary encroachment is more particularly described as follows: An area of encroachment into a portion of the City's right-of-way known as Indian River Road, on the certain plat entitled: "EXHIBIT A ENCROACHMENT AGREEMENT FOUNDERS INN SIGN Revised July 5, 1994 Kimley- Horn," a copy of which is on file in the Department of Public Works and to which reference is made for a more particular description. PROVIDED, HOWEVER, that the temporary encroachment herein authorized shall terminate upon notice by the City of Virginia Beach to any officer of The Christian Broadcasting Network, Inc., its heirs, assigns and successors in title and that within thirty (30) days after such notice is given, said encroachment shall be removed from the City's right-of-way of Indian River Road and that The Christian Broadcasting Network, Inc., its heirs, assigns and successors in title shall bear all costs and expenses of such removal. AND, PROVIDED FURTHER, that it is expressly understood and agreed that The Christian Broadcasting Network, Inc., its heirs, assigns and successors in title shall indemnify and hold 45 46 47 48 49 5O 51 52 53 54 55 56 57 58 harmless the City of Virginia Beach, its agents and employees from and against all claims, damages, losses and expenses including reasonable attorney's fees in case it shall be necessary to file or defend an action arising out of the location or existence of such encroachment. AND, PROVIDED FURTHER, that the party of the second part agrees to maintain said encroachment so as not to become unsightly or a hazard. AND, PROVIDED FURTHER, that this ordinance shall not be in effect until such time that The Christian Broadcasting Network, Inc. executes an agreement with the City of Virginia Beach encompassing the aforementioned provisions. Adopted by the Council of the City of Virginia Beach, 8 November 94 Virginia, on the day of 19 59 60 61 07/14/94 EWB/tga BRITIAFOUNDERS.ORD DEPARTF~ENT APPROVED AS TO LEGAL SUFFICIENCY THIS AGREEMENT, 19 ~ , by and between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation, party of the first part, and THE CHRISTIAN BROADCASTING NETWORK, INC., a Virginia corporation, ITS HEIRS, ASSIGNS AND SUCCESSORS IN TITLE, party of the second part. W I T N E $ $ E T H: That, WHEREAS, it is proposed by the party of the second part to construct and maintain a commercial sign in the City of Virginia Beach; and WHEREAS, in constructing and maintaining such sign, it is necessary that the said party of the second part encroach into a portion of an existing City right-of-way known as Indian River Road; and said party of the second part has requested that the party of the first part grant a temporary encroachment to facilitate such sign within a portion of the City's right-of-way known as Indian River Road. NOW, THEREFORE, for and in consideration of the premises and of the benefits accruing or to accrue to the party of the second part and for the further consideration of One Dollar ($1.00), in hand paid, to the said party of the first part, receipt of which is hereby acknowledged, the party of the first part doth grant to the party of the second part a temporary encroachment to use a portion of the City's right-of-way known as Indian River Road for the purpose of constructing and maintaining such sign. It is expressly understood and agreed that such temporary encroachment will be constructed and maintained in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach, and in accordance with the City of Virginia Beach Public Works Department's specifications and approval as to size, alignment and location and is more particularly described as follows, to wit: An area of encroachment into a portion of the City's right-of-way known as Indian River Road as shown on that certain plat entitled: "EXHIBIT A ENCROACHMENT AGREEMENT FOUNDERS INN SIGN REVISED JULY 11, 1994 Kimley-Horn," a copy of which is attached hereto as Exhibit "A" and to which reference is made for a more particular description. It is further expressly understood and agreed that the temporary encroachment herein authorized shall terminate upon notice by the City of Virginia Beach to the party of the second part, and that within thirty (30) days after such notice is given, such temporary encroachment shall be removed from the City's right-of-way known as Indian River Road by the party of the second part; and that the party of the second part shall bear all costs and expenses of such removal. It is further expressly understood and agreed that the party of the second part shall indemnify and hold harmless the City of Virginia Beach, its agents and employees, from and against all claims, damages,' losses and expenses including reasonable attorney's fees in case it shall be necessary to file or defend an action arising out of the location or existence of such temporary encroachment. It is further expressly understood and agreed that nothing herein contained shall be construed to enlarge such 2 permission and authority to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified herein, nor to permit the maintenance and construction of any encroachment by anyone other than the party of the second part. It is further expressly understood and agreed that the party of the second part agrees to maintain said encroachment so as not to become unsightly or a hazard. It is further expressly understood and agreed that the party of the second part must show proof of public liability insurance of a minimum of Five Hundred Thousand Dollars ($500,000.00). It is further expressly understood and agreed that the encroaching commercial sign shall meet the requirements of the City of Virginia Beach sign ordinance. It is further expressly understood and agreed that the party of the first part, upon revocation of such authority and permission so granted, may remove any such encroachment and charge the cost thereof to the party of the second part, and collect the cost in any manner provided by law for the collection of local or state taxes; may require the party of the second part to remove such temporary encroachment; and pending such removal, the party of the first part may charge the party of the second part compensation for the use of such portion of the City's right-of-way encroached upon the equivalent of what would be the real property tax upon the land so occupied if it were owned by 3 the party of the second part; and if such removal shall not be made within the time ordered hereinabove by this Agreement, the City shall impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that such encroachment is allowed to continue thereafter, and shall collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. IN WITNESS WHEREOF, the said CHRISTIAN BROADCASTING NETWORK, INC. has caused this Agreement to be executed in its corporate name and on its behalf by its vice president, and its corporate seal to be hereto affixed and duly attested by its corporate secretary with due authority by its board of directors. Further, that the City of Virginia Beach has caused this Agreement to be executed in its name and on its behalf by its City Manager and its seal be hereunto affixed and attested by its City Clerk. CITY OF VIRGINIA BEACH (SEAL) ATTEST: City Clerk By 4 City Manager/Authorized Designee of the city Manager i,,3 DEPA~Tt,~[NT APPROVED AS TO LEGAL SUFFICIENCY THE CHRISTIAN BROADCASTING NETWORK, INC., a Virginia corporation C. A. Volder III Director of Land Development STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: I, , a Notary Public in and for the City and State aforesaid, do hereby certify that , CITY MANAGER/AUTHORIZED THE CITY MANAGER, whose name is signed to the foregoing Agr~ bearing date on the day of , 19 , has acknowledged the same before me in my City and State aforesaid. GIVEN under my hand this day of , 19 . Notary Public My Commission Expires: STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: I, , a Notary Public in and for the City and State aforesaid, do hereby certify that RUTH HODGES SMITH, City Clerk for the CITY OF VIRGINIA BEACH, whose name is signed to the foregoing Agreement bearing date on the day of , 19 __, has acknowledged the same before me in my City and State aforesaid. 5 19 GIVEN under my hand this day of , My Commission Expires: Notary Public STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: in and for the City and State aforesaid, do hereby certify that C. A. Volder III, Director of Land Development, on behalf of THE CHRISTIAN BROADCASTING NETWORK, INC., whose name is signed to the foregoing writing, bearing date the ~( day of ~uS~ , 19~, has acknowledged the same before me in my City and State aforesaid. Given under my hand ~. ~~ , 19~. My Commission Expires: this c~ g~ day Notary Public of 6 - 20 - Item III-H.5. CONSENT AGENDA ITEM # 38550 Upon motion by Vice Mayor Sessoms, seconded by Council Lady Strayhorn, City Council ADOPTED: Ordinance authorizing Tax Refunds in the amount of $3,063.02 upon application of certain persons and upon Certification of the City Treasurer for Payment. Voting: 11-0 Council Members Voting Aye: John A. Baum, Linwood O. Branch, III, Robert K. Dean, William W. Harrison, Jr., Barbara M. Henley, Louis R. Jones, John D. Moss, Mayor Meyera E. Oberndorf, Nancy K. Parker, Vice Mayor William D. Sessoms, Jr., and Louisa M. Strayhorn Council Members Voting Nay: None Council Members Absent: None November 8, 1994 NO. C.A. 7 AN ORDINANCE AUTHORIZING TAX REFUNDS UPON APPLICATION OF CERTAIN PERSONS AND UPON CERTIFICATION OF THE TREASURER FOR PAYMENT BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the following applications for tax refunds upon certification of the Treasurer are hereby approved: NAHE Tax Type Ticket Exonera- Date Penalty Int. Total Year of Tax Number tion No. Paid Herbert J Zukerman Chemical Mortgage Company Edwin J & Marilyne Rafal Signet Mortgage Corp Signet Mortgage Corp Carlesta E Henderson Carlesta Carlesta Carlesta Carlesta Carlesta Citizens Citizens Citizens Citizens Citizens E Henderson E Henderson E Henderson E Henderson E Henderson Mortgage Corp Mortgage Corp Mortgage Corp Mortgage Corp Mortgage Corp Citizens Mortgage Corp Leigh Ann McKelway Mazda American Credit 94 RE(2/2) 44006-9 9/30/94 144.86 94 RE(2/2) 133767-9 6/5/94 48.46 94 RE(2/2) 134390-2 6/5/94 24.24 94 RE(l/2) 131605-9 12/5/93 466.03 94 RE(2/2) 131605-9 5/27/94 466.03 90 RE(l/2) 49211-3 12/5/89 97.70 90 RE(2/2) 49211-3 - 6/5/90 97.70 91 RE(l/2) 50040-7 12/5/90 103.20 91 RE(2/2) 50040-7 6/5/91 103.20 92 RE(l/2) 50407-3 12/5/91 109.00 92 RE(2/2) 50407-3 6/5/92 109.00 92 RE(l/2) 57873-3 11/26/91 207.10 92 RE(2/2) 57873-3 6/5/92 207.10 93 RE(l/2) 58539-6 12/5/92 207.10 93 RE(2/2) 58539-6 5/29/93 207.10 94 RE(l/2) 059185-0 11/23/93 216.60 94 RE(2/2) 059185-0 5/27/94 216.60 N/A Pkng B13751 8/19/94 12.00 N/A Pkng 427386 9/19/94 20.00 Total 3,063.02 This ordinance shall be effective from date of adoption. The above abatement(s) totaling $3,063.0:2 were approved by the Council of the City of Virginia Beach on the 8 _day of Novembe]~,. 1994 Ruth Hodges Smith City Clerk Ce! J ohl T. A{l~inso~, 'l~etasurer Approved as to form: Lesli~ L. Lilley, City - 21 - Item III-L 1. PUBLIC HEARING ITEM # 38551 PLANNING Mayor Meyera E. Oberndorf DECLARED a PUBLIC HEARING on: PLANNING (a) JOHN W. AND ELLEN M. BLUMLING VARIANCE (b) B. M. STANTON, JR. CONDITIONAL USE PERMIT (C) SOUTHLAND CORPORATION CONDITIONAL USE PERMIT (d) CITY ZONING ORDINANCE AMEND AND RE, ORDAIN SECTION 701 /USE REGULATIONS H-I HOTEL DISTRICT (e) VIRGINIA CELLULAR, LTD. CONDITIONAL USE PERMIT November 8, 1994 Item III-L l.a. PUBLIC HEARING ITEM# 38552 PLANNING William L. Blumling, 2268 Greenwich Road, Phone: 464-5870, represented the applicant in his absence and requested DEFERRAL to the City Council Session of November 22, 1994. Upon motion by Councilman Jones, seconded by Councilman Moss, City Council APPROVED the Application of JOHN W. and ELLEN M. BLUMLING for a Variance to Section 4.4(b) of the Subdivision Ordinance which requires all lots created by subdivision meet all requirements of the City Zoning Ordinance. Appeal from Decisions of Administrative Officers in regard to certain elements of the Subdivision Ordinance, Subdivision for John W. & Ellen M. Blumling. Property is located at 2276 Greenwell Road. BAYSIDE BOROUGH. Voting: 11-0 Council Members Voting Aye: John ,4. Baum, Linwood O. Branch, III, Robert K. Dean, William W. Harrison, Jr., Barbara M. Henley, Louis R. Jones, John D. Moss, Mayor Meyera E. Oberndo~ Nancy ~ Parker, Vice Mayor William D. Sessorns, Jr., and Louisa M. Strayhorn Council Members F'oting Nay: None Council Members Absent: None November 8, 1994 - 23 - Item III-L 1.b. PUBLIC HEARING ITEM # 38553 PLANNING B. M. Stanton, Jr., 5845 Northampton Boulevard, Phone: 460-2291, represented himself The following registered in OPPOSITION: Attorney Christopher W. Durum, c/o Troy .4. Titus, P.C., 5203 Indian River Road, Phone: 467-0616 David Herbert, 1501 Colebrook Drive, Phone: 495-4930, represented the Lake Christopher Homeowners Association Upon motion by Council Lady Strayhorn, seconded by Vice Mayor Sessoms, City Council ADOPTED an Ordinance upon application of B. M. STANTON, JR. for a Conditional Use Permit: ORDINANCE UPON APPLICATION OF B. M. STANTON, JR., FOR A CONDITIONAL USE PERMIT FOR/1 CAR WASH R011941916 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application orB. M. Stanton, Jr., or a Conditional Use Permit for a car wash on the southwest side of Indian River Road, 300 feet more or less southeast of Kempsville Road. Said parcel is located at 5217 Indian River Road and contains 33,802.56 square feet. KEMPSVILLE BOROUGH. The following conditions shall be required: Site improvements shall be in accordance with the submitted development plan entitled "SITE PLAN FOR B. M. STANTON CAR WASH FACILITY" dated September 28, 1994; and also, the site plan dated October 11, 1994. 2. Hours of operation are limited to the following: automatic bay, 8 AM to 6 PM; self-service bay, 8 AM to 9 PM. Spacing for trees within the Category IV landscaping area and for the parla'ng lot landscaping along Indian River Road shall be eight to fifteen feet (8'-15'), depending on species and requirements. 4. The applicant is to hook into the HRSD system. The Ordinance shall be effective in accordance with Section 107 09 of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Eighth of November, Nineteen Hundred and Nine~_ -Four. November 8, 1994 - 24 - Item III-I. 1. b. PUBLIC HEARING ITEM # 38553 (Continued) PLANNING Voting: 10-1 Council Members Voting Aye: John ,4. Baum, Linwood O. Branch, III, Robert 14. Dean, William IV.. Harrison, Jr., Barbara M. Henley, Louis R. Jones, John D. Moss, Nancy IC Parker, Vice Mayor William D. Sessoms, Jr., and Louisa M. Strayhorn Council Members Voting Nay: Mayor Meyera E. Oberndorf Council Members Absent: None November 8, 1994 Item III-I.l.c. PUBLIC HEARING ITEM # 38554 PLANNING The following registered in SUPPORT and represented the applicant: Stephen R. Romine, 4705 Columbus Street, Phone: 552-6031, represented the applicant Dave Walker, 2501 Malaga Court, Phone: 426-5401, Upon motion by Council Lady Strayhorn, seconded by Vice Mayor Sessorns, City Council ADOPTED an Ordinance upon application of SOUTHLAND CORPORATION for a Conditional Use Permit: ORDINANCE UPON APPLICATION OF THE SOUTHLAND CORPORATION FOR A CONDITIONAL USE PERMIT FOR AN AUTOMOTIVE SERVICE STATION R011941917 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of The Southland Corporation for a Conditional Use Permit for an automotive service station in conjunction with a convenience store at the northwest corner of Independence Boulevard and Edwin Drive. Said parcel is located at 496 Independence Boulevard and contains 1.061 acres. KEMPSVILLE BOROUGH. The following conditions shall be required: 1. Authorized three (3)pumps plus a canopy. 2. Public restroorns shall be provided as per Section 225(a) of the City Zoning Ordinance. 3. The existing interior lot line shall be vacated. A variance to the required Category VI landscape/screening must be obtained from the Board of Zoning Appeals prior to final site plan approval. Applicant must obtain a canopy minimum setback requirement variance from the Board of Zoning Appeals prior to the Site Plan approval. 6. Site improvements shall be in accordance with the submitted development plan entitled "Site Improvement Plan 7-11 Food Store", dated October 3, 1993, excluding canopy setbacks. The Ordinance shall be effective in accordance with Section 107 09 of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Eighth of November. Nineteen Hundred and Ninety-Four. November 8, 1994 - 26 - Item III-L 1.c. PUBLIC HEARING ITEM # 38554 (Continued) PLANNING Voting: 11-0 Council Members Voting ./lye: John A. Baum, Linwood O. Branch, III, Robert IC Dean, William W. Harrison, Jr., Barbara M. Henley, Louis 1~ Jones, John D. Moss, Mayor Meyera E. Oberndo~ Nancy IC Parker, Vice Mayor William D. Sessoms, Jr., and Louisa M. Strayhorn Council Members Voting Nay: None Council Members Absent: None November 8, 1994 - 27 - Item III-L 1,cl. PUBLIC HEARING ITEM # 38.555 PLANNING Upon motion by Councilman Branch, seconded by Vice Mayor Sessoms, City Council ADOPTED: Ordinance to AMEND and REORDAIN Section 701 of the City Zoning Ordinance re use regulations for communication towers in the H-1 Hotel District. Voting: 10-0 Council Members Voting Aye: John A. Baum, Linwood O. Branch, III, Robert IC Dean, William W. Harrison, Jr., Barbara M. Henley, Louis R. Jones, Mayor Meyera E. Oberndoff, Nancy I~ Parker, Vice Mayor William D. Sessoms, Jr., and Louisa M. Strayhorn Council Members Voting Nay: None Council Members Absent: John D. Moss November 8, 1994 1 2 3 4 5 6 9 10 11 AN ORDINANCE TO AMEND AND REORDAIN SECTION 701 OF THE CITY ZONING ORDINANCE OF THE CODE OF THE CITY OF VIRGINIA BEACH PERTAINING TO USE REGULATIONS IN THE H-1 DISTRICT BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That Section 701 of the City Zoning Ordinance of the Code of the City of Virginia Beach is hereby amended and reordained to read as follows: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 Sec. 701. Use regulations. The following chart lists those uses permitted within the H-1 Hotel District. Those uses and structures in the respective hotel district shall be permitted as either principal uses indicated by a "P" or as conditional uses indicated by a "C." Uses and structures indicated by an "X" shall be prohibited in the respective districts. No uses or structures other than as specified shall be permitted. (a) Principal and conditional uses. Use H-1 Borrow pits C Heliports and helistops C Hotels and motels P Marinas, commercial C Museums and art galleries when not operated by a public agency C Offices, as a use subordinate to and in conjunction with a hotel or motel, offices in which goods, wares or merchandise are not commercially created, displayed, stored, exchanged or sold C Parks, playgrounds and community centers, botanical and zoological gardens and other public buildings and uses p 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 Public utilities installations and substations, provided offices or storage or maintenance facilities shall not be permitted; and provided, further, that utilities substations, other than individual transformers, shall be surrounded by a wall, solid except for entrances and exits, or by a fence with a screening hedge five (5) to six (6) feet in height; and provided also, transformer vaults for underground utilities and the like shall require only a landscaped screening hedge, solid except for access opening Radio and television broadcastinq stations, cellular telephone antennas and line-of-site relay devices Recreational and amusement facilities of an outdoor nature other than as accessory uses, which may be partially or temporarily enclosed on a seasonal basis with approval of city council, except that riding academies and recreational campgrounds shall not be allowed as a conditional use or otherwise P C (b) Accessory uses and structures. Uses and structures which are customarily accessory and clearly incidental and subordinate to principal uses and structures, including but not limited to: (1) Within the H-1 Hotel District, establishments for sale of gifts, clothing, drugs, photographic supplies, newspapers, and magazines and convenience goods, eating and drinking establishments and professional and personal service establishments; provided that such uses are accessory to hotels having fifty (50) or more dwelling or lodging units for sale or for rent; and provided further, that all such establishments shall be designed and scaled only to meet the requirements of occupants and their guests; and provided also that there shall be no evidence of the existence of such establishments from outside the property line; and provided finally that the floor area occupied by such establishments shall not exceed twenty (20) percent of the floor area of the hotel or motel. 73 74 75 76 77 78 this Adopted by the City Council of the City of Virginia Beach on 8 day of November 1994. CA-748 DATA/ORDIN/PROPOSED/45-701.ORD OCTOBER 7, 1994 RI - 28 - Item III-L 1.e. PUBLIC HEARING ~EM #38~6 PI.~NNING DonaM C. Schultz, Esquire, 1200 NationsBank Center, Norfolk, Phone: 625-$00, represented the applicant Upon motion by Councilman Harrison, seconded by Vice Mayor Sessom~, City Council ADOPTED an Ordinance upon application of VIRGINIA CELLULAR, LTD. for a Conditional Use Permit: ORDINANCE UPON APPLICATION OF VIRGINIA CELLULAR LTD. PARTNERSHIP FOR A CONDITIONAL USE PERMIT R011941918 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Virginia Cellular Ltd. partnership for a Conditional Use Permit for a communication tower on certain property located at the southeast intersection of Atlantic Avenue and 57th Street. Said parcel contains 3.2 acres .......... L YNNHA VEN BOROUGH. The following condition shall be required: The requested tower will be developed in substantial conformance with the submitted photo/rendering presented to the Planning Commission and City Council and on file in the Department of Planning. The Ordinance shall be effective in accordance with Section 107 69 of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Eighth of November, Nineteen Hundred and Nine~_ -Four. Voting: 9-1 Council Members Voting Aye: John A. Baum, Linwood O. Branch, III, Robert IC Dean, William W. Harrison, Jr., Barbara M. Henley, Louis R. Jones, Mayor Meyera E. Oberndo~ Vice Mayor William D. Sessoms, Jr., and Louisa M. Strayhorn Council Members Voting Nay: Nancy K. Parker Council Members Absent: John D. Moss November 8, 1994 Item III-L 2. APPOINTMENT ITEM # 38557 ADD-ON BY CONSENSUS, City Council recorded the CIRCUIT COURT'S REAPPOINTMENT: BOARD OF ZONING APPEALS John S. Waller, Sr. five-year term 1/1/95 - 12/31/2000 November 8, 1994 - 30 - Item III-J. 1. UNFINISHED BUSINESS ITEM # 38558 Lou Pace, 1908 Hunts Neck Court, Phone: 468-0925, spoke in OPPOSITION. Upon motion by Vice Mayor Sessoms, seconded by Council Lady Strayhorn, City Council ADOPTED VERSION B: Resolution to request the Governor and the General Assembly to ensure the continued funding of improvements to, maintenance and policing of Route 44 following the removal of tolls. Voting: 11-0 Council Members Voting Aye: John A. Baum, Linwood O. Branch, III, Robert IC Dean, William IK. Harrison, Jr., Barbara M. Henley, Louis t~ Jones, John D. Moss, Mayor Meyera E. Oberndo~ Nancy I~ Parker, Vice Mayor William D. Sessoms, Jr., and Louisa M. Strayhorn Council Members Voting Nay: None Council Members Absent: None November 8, 1994 A RESOLUTION EXPRESSING APPRECIATION FOR EFFORTS OF LOCAL STATE LEGISLATORS TO ENSURE STATE FUNDING OF ROUTE 44 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 WHEREAS, the City of Virginia Beach has been advised that the tolls on Route 44 may be removed in 1995; WHEREAS, Route 44 is currently in need of certain improvements including, but not limited to, interchanges at Witchduck and Rosemont Roads, and sound attenuation barriers; WHEREAS, Route 44 will continue to be in need of maintenance and policing; WHEREAS, the tolls derived from Route 44 have served as an ongoing source of revenue for such improvements, maintenance, and policing; WHEREAS, removal of the tolls on Route 44 will put an immediate end to this source of revenue, and will require the City of Virginia Beach to compete with other primary road projects in the Suffolk District for funds to support Route 44; WHEREAS, City Council has expressed these concerns to members of the City's local delegation to the General Assembly; and WHEREAS, the City's local State legislators have indicated that they appreciate the City's concerns, and have agreed to take all necessary actions to ensure that adequate State funding for Route 44 is approved in the 1995 Session of the General Assembly, as well as in subsequent years' sessions. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That City Council hereby expresses its appreciation to the members of the City's local delegation to the General Assembly for their commitment to take whatever actions may be necessary to ensure that, upon the removal of tolls from Route 44, sufficient funds will be made available by the Commonwealth of Virginia to make needed improvements to Route 44 including, but not limited to, the Witchduck and Rosemont Road interchanges, and sound attenuation 34 35 36 37 38 39 40 41 barriers (where Commonwealth Transportation Board requirements have been met), and that sufficient funds will also be made available for all future improvements to Route 44, and for ongoing maintenance and policing. BE IT FURTHER RESOLVED: That the City Clerk is hereby directed to provide a certified copy of this Resolution to each member of the City's local delegation to the General Assembly. 42 43 Adopted by the Council of the City of Virginia Beach, Virginia, on the 8 day of November , 1994. 44 45 46 47 CA-5770 ORDIN\NONCODE\ROUTE.RES R-1 PREPARED: 11/03/94 - 31 - Item III-J. 2. UNFINISHED BUSINESS ITEM # 38559 ADD-ON Mayor Oberndorf referenced her Memorandum relative the Urban Partnership. Neal J. Barber has become the temporary Director for this Urban Partnership. A group of thirteen Virginia cities was formed to study various economic, financial and governmental issues facing Virginia's urban areas. This group has linked to the Virginia Municipal League and State level Chamber of Commerce to study these issues and eventually develop possible legislative initiatives to address study conclusions. Virginia Beach can join this partnership for a $10,000 membership fee. Information relative this concept is hereby made a part of the record. This item will be SCHEDULED for a future Agenda. November 8, 1994 - 32 - Item IlI-J, ;7, UNFINISHED BUSINESS ADD-ON ITEM # 38560 Mayor Oberndorf referenced correspondence from Chuck Wyatt, Region I Manager for the State Dzpartment of Conservation and Recreation. Mr. Wyatt initially contacted the Mayor to request the City take a position supporting their effort to improve access to False Cape State Park. The U.S. Fish and Wildlife Service has greatly restricted access to the State property. Council Lady Henley quoted the last paragraph of the proposed Resolution: "BE IT FINALLY RESOLVED, that we support deeded access for the Commonwealth of Virginia and her citizens to False Cape State Park in perpetuity, unlimited by the Federal Government and that we enlist the support of the Virginia Congressional Delegation in obtaining this access." The State is interested in deeded access. Council Lady Henley advised, in the chronology concerning 1982 False Cape Task Force, she served on this Task Force as a representative of the City and believed there was a misrepresentation of the recommendations of the Task Force. There was no recommendation for a land exchange in fee simple. City Council will take NO ACTION. November 8, 1994 Item III-J. 4. UNFINISHED BUSINESS ITEM # 38561 COUNCIL O, UESTIONS RE STORM WATER MANAGEMENT PRESENTATION Completed NPDES supplemental information and the Storm Water Quality program Data Narrative were distributed to City Council Ralph Smith, Director of Public Works, advised as the City enters the third year of the NPDES five-year permit program, the City is anticipating there will be standards created for the community based upon the tests. As long as data is created which has been required under the Permit that demonstrates the City is performing reasonably well, this will be the standard. Councilman Moss advised Lake Trashmore will involve a very unique solution and inquired re the remedlation effort. Mr. Smith advised when the City Staff becomes aware of the exact contaminants then the corrective design will be created. Mr. Smith advised the problems inherffed need to be identified and arrayed with all the problems on the aspects of governing a City. There are limited resources and priorities which mast be established. Public Works has attempted to present an insight into the condition of the system. Councilman Moss referenced from this approximate $8.22 bill (Storm Water Management Fee) net profit is slightly over $6.00 after the costs of sending out this bill are deducted. Water quality is not the main drive of the fee, but flood control, which is public safety. Therefore, that is a tax. City Council should consider eliminating this fee. ~4 tax is a more equitable means to deal with flood control for the whole City than a fee. The City Manager advised the Staff is investigating developing with the Hampton Roads Sanitation District a joint billing process to reduce the overhead cost. Council Lady Henley advised of her attendance at a recent briefing session from the regional agencies, HRSD had offered, without charge, to perform any billing for the individual cities. Phil Davenport, Administrator Services Co-Ordinator, advised HRSD is involved at the present time in a test billing with the City of Norfolk. Once this testing is complete and successful, the City of V~rginia Beach will investigate bringing water and sewer bills on line with HRSD. The storm water fee is a slightly different data base from water and sewer and will entail more effort. This would be the third step in the process. Mr. Davenport further advised the cost of preparing the Storm Water Management fee bills was approximately $100,000 with an approximate $60,000 expended by the City Treasurer's Office for processing the payments. Thus $160,000 would be saved, if this fee were added to the HRSD bill. A billing file and customer service clerks, to respond to citizen concerns, would still have to be maintained by the City. Councilman Dean referenced the 82 cases of illicit discharges in the City. Mark Johnson, Project Manager for Engineering and Permitting - City's Stormwater 3~,stem, advised not all were illicit discharges. To date, no fines have been collected through the court system. If possible, the City discusses this violation with the individua~ advises them same is a misdemeanor and usually the perpetrator will clean up the discharge. For the few who continue to be a problem, the staff is discussing solutions with the City Attorney's office. Councilman Dean had a problem with the fee never being removed. Mr. Johnson advised newer developments are required to design to the ten-year storm event and analyze the downstream system to ensure its capacity to convey the storm water. The BMP'S to be implemented only allow pollutants to be reduced. There is still a certain amount of pollutants that will be discharged to the downstream system. The BMP's also act as a surge capacity. Art Shaw, Operations Engineer - Public Works, advised cleaning ditches does not help water quality. Cleaning ditches primarily ensures a fiow of water. Vegetation is removed as a mosquito control technique. Lakes and ponds are dredged to increase depth and volume. Mr. Smith advised a testing program is in process relative Lake Trashmore by the Hampton Roads Sanitation District. Data will be accumulated to develop a corrective program. November 8, 1994 - 34 - NEW BUSINESS ITEM # 38562 ADD-ON Mayor Oberndorf announced the return to work of Dawne Franklin, Stenographic Reporter, to the City Clerk's Staff and extended the congratulations of the Mayor and City Council on the birth of her son, lOle. November & 1994 NEW BUSINESS ITEM # 38563 Charles W. Gardner, 1309 Kingfisher Court, Phone: 425-6701, spoke in SUPPORT of the Resolution. Upon motion by l/ice Mayor Sessoms, seconded by Councilman Baum, City Council ADOPTED AS AMENDED: Resolution to invite the Institute in Basic Life Principles to establish an Advanced Training Institute for Troubled Youths and their Families in the City of Virginia Beach or elsewhere in the Hampton Roads area. *On line 32, the word "general" before the word "Public" shall be deleted. The word "sector" shall be added after the word "public": ... "and without appealing for financial support from the gener~ public sector; and..." Voting: 11-0 Council Members Voting Aye: John A. Baum, Linwood O. Branch, IH, Robert I~ Dean, William W. Harrison, Jr., Barbara M. Henley, Louis R. Jones, John D. Moss, Mayor Meyera E. Oberndoff, Vice Mayor William D. Sessoms, Jr., and Louisa M. Strayhorn Council Members Abstaining: Nancy IC Parker Council Members Voting Nay: None Council Members Absent: None Council Lady Parker ABSTAINED as she does not wish to vote against the Resolution but had concerns relative the necessity of a Resolution. November 8, 1994 1 2 3 4 5 A RESOLUTION TO INVITE THE INSTITUTE IN BASIC LIFE PRINCIPLES TO ESTABLISH AN ADVANCED TRAINING INSTITUTE FOR TROUBLED YOUTHS AND THEIR FAMILIES IN THE CITY OF VIRGINIA BEACH OR ELSEWHERE IN THE HAMPTON ROADS AREA 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 WHEREAS, Virginia Beach, the largest city in the State of Virginia with 440,000 citizens, is part of the Hampton Roads area whose fifteen localities have a combined population of 1,400,000; WHEREAS, all of these localities are experiencing the phenomenon of serious crimes being committed in increasing numbers by juvenile offenders, ever younger in age; WHEREAS, rehabilitative programs available for these juvenile offenders are hampered by staff shortages and lack of adequate facilities, and the rate of recidivism among youths assigned to these programs is very high; WHEREAS, there exists no alternative program in which the courts and court services may place these youths in crisis; WHEREAS, there is a compelling need for these errant juveniles to be taught and to develop basic positive character traits such as honesty, truthfulness, diligence, respect for authority, consideration of others, self-discipline and personal morality; WHEREAS, the Institute in Basic Life Principles, based in Oak Brook, Illinois, through one-on-one counselling in a group home setting, has demonstrated notable success in providing to troubled youths and their families moral guidance and training in the principles of honesty, decency, self-discipline, respect for others and civic responsibility; WHEREAS, the Institute in Basic Life Principles, which is privately funded, establishes these local Advanced Training Institutes in selected cities at no cost to the cities involved, and without appealing for financial support from the public sector; and 34 35 36 37 38 39 40 41 42 43 44 45 46 47 WHEREAS, the establishment of an Advanced Training Institute in the City of Virginia Beach or elsewhere in the Hampton Roads area would make available to the juvenile court systems in the various Hampton Roads localities a supplemental rehabilitative program wherein non-violent youthful offenders might enroll on a volunteer basis, as an alternative to commitment to a secure or non-secure correction facility. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the Council of the City of Virginia Beach hereby invites the Directors of the Institute in Basic Life Principles to consider the establishment of an Advanced Training Institute for troubled youths and their families in the city of Virginia Beach or elsewhere in the Hampton Roads area. 48 49 Adopted by the Council of the City of Virginia Beach, Virginia, on the 8 day of November , 1994. 50 51 52 53 CA-5741 ORDIN\NONCODE\YOUTH.RES R-4 11/10/94 2 Municipal Center Virginia Beach, VA 23456-9001 (804) 427-4242 FAX (804) 427-4135 TDD (804) 427-4305 November 8, 1994 The Honorable Mayor and Members of City Council Dear Councilmembers: Attached is information I received from the Department of Public Works regarding questions asked by Councilmember Moss at last week's Council meeting. I will be pleased to provide additional information if desired. Sincerely, mes K. S~ore~~/~' ~an!g~er JKS/jd Attachments Municipal Center Virginia Beach, VA 23456-9035 (804) 427-4167 DATE: November 8, 1994 TO: James K. Spore, Executive FROM: Ralph A. Smith, Public Works SUBJ: Questions Regarding Storm Water Utility Presentation During the storm water utility presentation on November 1, Councilman Moss asked three questions: What was the cost of preparing the color presentation? o What happened to the $5.3 million in the General Fund when the utility fee was implemented? How was the cost benefit analysis prepared to determine that some services could be performed with less expense by "in house" personnel than by contract? Answers to these questions are provided on the three following attachments· Staff will be available at today's City Council meeting to discuss these issues or to answer any other questions you may have. RAS/PAD/j d Attachments ATTACHMENT i What was the cost of preparing the color presentation? This time was spent for three departmental meetings and time to prepare presentation material, a draft presentation to the City Manager, a draft presentation to two members of City Council, and the formal presentation. Engineering Project Management. Drafting Bureau Print Shop Charges Subtotal Highways and Operations Management Administration Director Total Presentation Cost $ 778.80 1,212.00 1,000.00 $2,990.80 $2,025.00 $ 856,41 $ 477,6~ $6,349.84 Additional Unpaid Costs: Engineering Hwys & Ops Mgmt. Administration Director Total Unpaid $ 778.80 1,350.00 220.73 $ 273.15 $2,922.80 ATTACHMENT 2 What happened to the $5.3 million in the General Fund when the utility fee was implemented? When the storm water utility fees were budgeted, they replaced some General Fund activities and added some funding for services not previously budgeted. Within the Public Works budget, General Fund money for Drainage Maintenance and BMP Inspections (total of $2,804,399) was replaced with revenue from fees. At the same time, costs for SPSA disposal fees, street lighting and roadway resurfacing (all supported by General Fund) increased $1,994,122. Assuming no other cost increases or decreases had occurred, General Fund support should have decreased from FY 1992-93 to FY 1993-94 by $810,277 which is the difference between the increases and decreases. However, the General Fund support actually was reduced an additional $918,286 which was possible because of manpower reductions, cost efficiencies and some reduced services. FY 1992-93 General Fund Budget Deletions for SWU Functions: Drainage Maintenance BMP Inspections Total Deletions Subtotal $ 2,725,998 $ _ 78,401 $43,452,192 $ 2,804.399 $40,647,793 Additions for cost increases: Waste Disposal Tipping Fees Street Lighting Roadway Resurfac~ng Total Additions 1,281,023 459,508 253,591 FY 1993-94 General Fund Budget Assuming no other changes FY 1993-94 General Fund Budget Actual Amount of savings resulting from manpower reductions, efficiencies, and service cuts $42, 641,915 $41. 723,629 There is not a direct Link between the General Fund money that was replaced by the Storm Water Utility fees and services other than those described above. During budget preparation, the General Fund money was assumed available to fund any of the functions normally supported by the General Fund. The Storm Water Utility fees also replaced $470,113 of CIP staffing costs related to Program Management. Additional services funded with the fees included $217,121 for customer service and $60,507 for assistance from the Treasurer i~. receiving and processing payments. The remaining $1,297,705 paid for reimbursements for General Fund support, debt service, and reserve accounts. $ 918,286 ATTACllMENT 3 How was the cost benefit analysis prepared to determine that some services could be performed with less expense by "in house" personnel than by contract? Information was requested on the process used to compare costs and distribute work between city staff and contractor forces. Contractors unit prices for performing various items of work are reasonably well known from competitive bids on past and present contracts. Where contractor price information is not available for a certain type of work inquiries are made, as necessary, to obtain that information. Certain types of maintenance and repair work are routinely prepared for contractor performance. This includes any work that exceeds the manpower and equipment capabilities of city staff such as: pile driving, major excavation requiring shoring and well-pointing, pond and canal dredging and other specialized work. In addition, work orders that are within the capabilities of staff, and may even be less expensive to do by staff, are nevertheless frequently performed by contract when the commitment of limited available resources would be too extensive. For example, lead ditch maintenance can generally be done more economically by city staff, however, given the current backlog of approximately 1,500 work orders,.the commitment of limited in-house resources for the length of time required to clear such a single work order is not efficient. Omitting the large, specialized contracts such as dredging, oil-water separator maintenance, spillway repairs, etc., the average cost of the routine work orders performed by contract is approximately $10,400. Unit costs for performing work by city staff are well established and adjusted annually. The equipment costs are established by the Virginia Department of Transportation and form a part of the basis for the $2.3 million annual reimbursement from the state. The authorized equipment rates include vehicle maintenance (repair parts and labor), fuel and depreciation. Similarly the staff labor costs include all normal fringe benefits and acceleration. Material costs are updated annually and are based on actual purchases. Not included in city staff unit costs are general overhead expenses such as: building and grounds maintenance, janitorial service, computer maintenance, telephone services, clerical support, management salaries and other typical home office expenses. These are considered unavoidable costs and would not vary significantly depending upon a contract versus in-house work performance decision. Consequently, only avoidable city costs are considered when analyzing the benefits oi contracting over city staff performance for new or expanded maintenance services or for the continuance of existi~ services. The average work order performed by city staff requires $658 and 24 mankours to perform. The day to day, work order by work order, decisions concerning performance by city staff or contractor do not require much analysis or consideration. Decisions are made based upon commonly held knowledge of the relative costs of ~erforming the various work activities by city staff or contractor. For example, small cave-in 'repairs requiring only a few crew hours to complete are generally performed by in-house staff because contractors' pricing shows that ATTACHMENT 3 (cont) they cannot profitably mobilize their personnel and equipment for such small projects. Conversely, contractors prices are known to be very competitive for larger cave-in repairs requiring specialized heavy equipment, larger crew sizes, plans and specifications and several days or weeks for completion. For medium size cave-ins, frequently the decision to perform work by contract is driven by the availability of staff and equipment rather than by any economic advantage offered by the contractor. The basis for these day to day work allocation decisions changes constantly. As new contracts are advertised and awarded and new contract pricing data becomes available the decision process may shift in favor of/or against doing more of a certain type of work by contract. New and innovative contracts and process improvements are currently being tested in an attempt to obtain more competitive pricing from our area contractors. Recently the Finance Department assisted Public Works in comparing contract versus in-house pricing for four different work activities. The objective was to provide comparative information that would help with outsourcing decisions. The four work activities examined were: (1) cleaning oil/water separators, (2) roadside ditch maintenance, (3) expanding leaf removal service and, (4) Off-road ditch maintenance. The outsource studies are attached for information. The result of these cost comparison studies supported: (1) continue to contract oil/water separator maintenance, (no significant savings), (2) retain roadside ditch maintenance in-house (60% savings), (3) retain leaf cleaning in- house, if service is expanded (50% savings) and, (4) retain off- road ditch maintenance in-house (200+% savings). Similar cost comparison and outsourcing studies will be conducted in the future in an effort to constantly update our pricing data. Investment incentive program opportunities will also be examined. For example, an initial analysis of the potential for development of an in-house lake and pond dredging capability, as an investment incentive program, could generate a payback period of less than one year and should generate savings of $2.5 million over the next five year maintenance program. Further analysis of this and other cost saving opportunities will be developed l.n the future. ~tormwater Management 3utso~rce Study Fils: STRMFD1C.WK3 3leaning 011 / Water Separators ( Currently Contracted Out ) :)ascription: The City currently has 38 Oil/Water Separator locations which are cleaned quarterly. 35 locations are c~eaned quarterly and 3 locations are cleaned monlhly per agreement with City of Norfolk. 6 separators require cleaning by Hand =erformance estimate: Regular Separators 20 hours required Hand Cleaned Separators 20 hours required -'stlmated In-House Cost ( based on 20 hours / quarter ) Overtime Rates Avoidable Costs: Personnel for Regular Separators: Maint Supervisor O.T. hourly rate 22.65 x 20 hre 453.00 MEO I O.T. hourly rate 14.52 x 20 hre 290.40 MEO I O.T. hourly rate 14.52 x 20 hre 290.40 Laborer O.T. hourly rate 13.82 x 20 hrs 276.40 Laborer O.T. hourly rate 13.82 x 20 hr$ 276.40 Personnel for Hand Cleaned Separators: Maint Supervisor O.T. hourly rate 22.65 x 20 hfs 453.00 MEO I O.T, hourly rate 14.52 x 20 hrs 290.40 MEO I O.T. hourly rate 14,52 x 20 hrs 290.40 Laborer O.T. hourly rate 13.82 x 20 hrs 276,40 Laborer O.T. hourly rate 13,82 x 20 hre 276,40 Fringe Benefits ( 27.5 % of salary ) $ 3,173.20 x 27.5 % 872.63 Adiust for Absences (. 1519 x Sal& Fr )$ 4,045.83 x . 1519 614.56 Equipment for Regular Separators: VAC-ALL hourly rate $ 30.64 / Hr 30.64 x 20 hrs 612.80 Depreciation 10.94 / Hr 10.94 x 20 hrs 218.80 Risk Management $ .13 / Hr .13 x 20 hrs 2.60 Mini-Dump hourlyrate $5.37/Hr 5.37 x 20hrs 107.40 Depreciation $ 2.83 / Hr 2.83 x 20 hrs 56.60 Risk Management $ .07 / Hr .07 x 20 hfs 1.40 Equipment for Hand Cleaned Separators: Single Axle Dump hourly rate 5.37 x 20 hrs 107.40 Depreciation $ 5.38 / Hr 5.38 x 20 hrs 107.60 Risk Management $ .08 / Hr .08 x 20 hrs 1.60 Mini-Dump .hourly rate 5.37 x 20 hfs 107.40 Depreciation $ 2.83 / Hr 2.83 x 20 hfs 56.60 Risk Management $ .07 / Hr .07 x 20 hfs 1.40 Supervisors Pickup Truck 40HrsX2.10/Hr 2,10 x 40hre 84.00 Depreciation 1.13 x 40 hra 45.20 Risk Management $ .05 / Hr X 40 Hfs .05 x 40 hrs 2.00 Total Avoidable Costs for performing In-House ( One cycle ) 6,173.19 Cycles per Y, ear x 4 Total Avoidable Costs for performing In-House { 4 Cycles per Year ) 24~692.76 ost of Current Contract: Tri-State Utilities 18 499 Depreciation Inv # 008672 008673 Annual Description Depr Truck w Stormwater Vac 17,519 ....1. 7,519 35,038 / 2 008555 Dump Truc~, ,~:,?Jgle Axle 7,016.40 008571 Du,rnp Truck, Single Axle 7,572.48 008669 Dump Truck, Single Axle 8,669.04 0P~8670 Dump Truck, Single Axle 8,669.04 008697 Dump Truck, Single Axle 8,422.20 008702 Dump Truck, Single Axle 8,422.20 008806 Dump Truck, Single Axle 10,374.48 008819 Dump Truck, Single Axle 9,536.40 008821 Dump Truck, Single Axle 9,536.40 008823 Dump Truck, Single Axle 9,536.40 008852 Dump Truck, Single Axle 8,668.68 008853 Dump Truck, Single Axle 8,668.68 008854 Dump Truck, Single Axle 8,668.68 008880 Dump Truck, Single Axle 10,590.00 124,351.08 / 14 008870 Dump Truck, Mini 4,060.20 008902 Dump Truck, Mini 4,769.40 008903 Dump Truck, Mini 4,769.40 13,599.00 / 3 17,519 Avg Annual / 1601.6 HrsAnnual Hours 10.94 Hourly Depr 8,882.22 Avg Annual / 1352 Annual Hrs 5.38 Hourly Depr 4,533.00 Avg Annual / 1601.6 Annual Hfs 2.83 Hourly Depr Risk Management Schedule Heavy Equipment $ .23 per $100.00 /Yr Truck w Stormwater Vac Coat 87,594.00 Annual Annual Hrs Per Hour Charge Allocable Charge 201.47 1,601.60 0.13 Ucenaed Vehicles . $110.00 / Year Dump Truck, Single Axle Dump Truck, Mini Pickup Truck 110.00 1,352 0.08 110.00 1,602 0.07 110.00 2,080 0.05 Estimated In-House Cost ( based on 20 hours / quarter ) Avoldabie Costs: Personnel for Regular Separators: MalntSupervisor $15.10/Hr 15.10 x 20hrs 302.00 MEO I $ 9.68 / Hr 9.68 x 20 hrs 193.60 MEO I $ 9.68 / Hr 9.68 x 20 hrs 193.60 Laborer $ 9.21 / Hr 9,21 x 20 hrs 184.20 Laborer $ 9.21 / Hr 9.21 x 20 hfs 184.20 Personnel for Hand Cleaned Separators: MatntSupervlsor $15,10/Hr 15.10 x 20 hrs 302.00 MEO I $ 9.68 / Hr 9.68 x 20 hrs 193.60 M EO I $ 9.68 / Hr 9,68 x 20 hrs 193.60 Laborer $ 9.21 / Hr 9.21 x 20 hrs 184.20 Laborer $ 9.21 / Hr 9.21 x 20 hrs 184.20 Fringe Benefits ( 27.5 % of salary ) $ 2,115.20 x 27.5 % 581.66 Adjust for Absences ( 1519 x Sal& Fr )$ 2,696.88 x .1519 409.66 Non-Overtime Rates Equipment for Regular Separators: VAC-ALL hourly rate $ 30,64 / Hr 30.64 x 20 hfs 612.80 Depreciation 10.94 / Hr 10.94 x 20 hrs 218.80 Risk Management $ .13/Hr .13 x 20 hrs 2.60 Mini-Dump hourty rate $ 5.37 / Hr 5.37 x 20 hrs 107.40 Depreciation $ 2.83 / Hr 2.83 x 20 hrs 56.60 Risk Management $ .07 / Hr .07 x 20 hrs 1.40 Equipment for Hand Cleaned Separators: Single Axle Dump hourly rate 5.37 x 20 hrs 107.40 Depreciation $ 5.38 / Hr 5.38 x 20 hfs 107.60 Risk Management $ .08 / Hr .08 x 20 hrs 1.60 Mini-Dump hourly rate 5.37 x 20 hrs 107.40 Depreciation $ 2.83 / Hr 2.83 x 20 hrs 56.60 Risk Management $ 07/Hr .07 x 20 hfs 1.40 Supervisors Pickup Truck 40HrsX2.10/Hr 2.10 x 40hrs 84,00 Depreciation 1.13 x 40 hfs 45.20 Risk Management $ .05 / Hr X 40 Hrs .05 x 40 hfs 2.00 Total Avoidable Costs for performing In-House ( One cycle ) 4,619.34 Cycles per Year x 4 Total Avoidable Costs for performing In-House ( 4 Cycles per Year ) ,, ,18~477.00 Cost of Current Contract: Tri-State Utilities ..... 18~499 Stormwater Management Outsource Study Leaf Removal ( CurrentJy done In- House ) File: STRMFD1B.WK3 Description: This Task is for the removal of fallen leaves from roadside ditches using a VAC-ALL Leaf Removal truck. Currently 2.37 miles of ditches are cleaned annually. Additional ditch cleaning is needed ae described below. Three heavily treed neighborhoods with 20 miles of ditches need to be cleaned to insure an obstruction free water flow. 1..Shadowlawn 2. Avalon Terrace '3. Bellamy Manor Performance estimate: 1,000 fi/day pace ( assume 10 hour day ) or 100 Ft / Hour After every 3.,000 Ft., Dumping required Dumping trip takes approx 1.5 Hrs. 20 miles of ditches = 105,600 ft. 105,600 ft. / 1000 ft / Hr = 1,056 Hours ditching time for one cycle 105,600 ft. / 3000 ft / Dump Freq X 1.5 Hfs / Dump run = 52.8 Hours dumping time Total ditching and dumping time required per 20 miles = 1,108.8 Hrs. 1,109 Hfs/40 Hr Wk = 28 Weeks per cycle 28 Wks / 52 Wks per Yr -- 54 % available time per cycle Vac-AII Truck assigned 77 % of available time or 40 weeks / Yr. Estimated in- House cost: Avoidable Costs: Personnel: Supervisor Hourly Sa115.42 X 1,109 Hrs Note b MEO I annual salary 17,372 X .54 utilization Laborer annual salary 16,534 X .54 utilization Fringe Benefits ( 27.5 % of salary ) Adjust for Absences (. 1519 x Ssi) Equipment: Supervisors Pickup 1,109 HrsX2.10/Hr Depreciation 1,109 HrsX 1.13/Hr Risk Management $ .05/Hr X 1,109 Hrs. Leaf Removal VAC-ALL Truck - Depreciation (a) Operating Cosls $ 30.64/HrX 1,109 Hrs Risk Management ($110.00 / Yr) Annual Maintenance ( DPW est ) Total Avoidable Costs for additional leaf removal Cost per Hr, City = $ 75.73 / Hr. 4,275 9,381 8,928 6,211 4,374 2,32g 1,253 55 18,000 33,980 110 5,000 (b) Estimated Purchase Price of new Leaf Removal Truck 90,000 Useful Life 5 years 18,000 per year Supervises 8 employees, thie 2 man crew represents .25 allocation Estimated Cost to Contract Out ( Based on City Pace of 1,000 Ft / Hr ) Provided by DPW, 20 miles of ditch cleaning Hourly rates per telephone inquiry ( 1,109 Hrs required ) IMS $170.00/Hr Innervlew $125.00 / Hr 188,530 138,625 City not charged 'l~pping Fee Allows for soma preventive maintenance ~ma Vac-AII ti'ucks are high main~,enance equipment 46 % Unutilized time coulc~ be usecl for aclclttional leaf removal ( Chelsea, Bay Colony etc ) Stormwater Management Outsource Study File: STRMFD1A.WK3 Lead Ditch Cleanin~ ( Currently done In-House ) Description: The City currently has 188 miles of large ditches leading to ouffalle which require cleaning, 12.2 miles of ditches are serviced each year. Ditches are serviced every 15.4 years Three types of ditches were selected for this study. 1. Large Lead Ditch - Dam Neck Road Ditch Requires stripping, hauling of unsuitable material, reuse of e¥itable material, reworking of slopes, and seeding. 2. Roadside Ditches - Providence Rd Northbound North Landing Rd Eastbound A) Providence Rd Northbound - 4,200 LF requiring hauling - larger than typical roadside ditch B) North Landing Rd Eastbound - 4,630 LF requiring hauling - typical 3. Off Road Ditch - Hope Haven / Salem Rd Ditch 6,600 LF - No hauling required, spreading material on site Competive bids from private sector companies have been solicited NOTE: PW staff has determined that the Dam Neck Road Ditch has deteriorated such that it cannot be considered a typical job and should not be used for this study as no performance data is available. Performance measurement: Based on FY 93 data from servicing 12.2 miles of various ditches Using Dragline and Excavator (134 Hrs / mile ) Dragline Cost / Hr $ 39.13 Risk Mgmt NA TrackExcavator Cost / Hr $ 28.24 Risk Mgmt $ ,16 / Hr Using Schaeff / Menzl (214 Hrs/Mile) Schaeff/Menzi Cost/Hr $ 14.32 RiskMgmt $.09/Hr Using Rubber Tire Excavator (73.67 FtJHr)(71.67 Hrs/Mile} Risk Mgtnt Tandem Wheel Dumptruck $ 9.07 / Hr (per PW) RiskMgmt $.11/Hr Depreciation on Equipment Dragline NA Track Excavator $ 22.97 / Hr Schaeff/Menzl $ 20,79 / Hr Tandem Dumptruck $ 13.09/Hr Climbing Hoe (Menzi) NA Rubber Tire Excavator $ 16.87/Hr Supervisor Pickup $ 1.13 / Hr Risk Management Licensed Vehicles $110.00 / Yr Heavy Equipment $ .23 per 100.00/Yr ( See separate schedule ) Stormwater Menagement Program Outsourcing Cost Study STRM F D4A.WK3 Depreciatior - based on actual hours each piece of equipment is in service. depreciable hours reduced by downtime ( scheduled maintenance or equipment failure ) and non-assigned hours. Public Works has provided data reflecting % of time each piece of equipment is down or unassigned. Inv. % down & # Work Depreclable No. Description Unassigned Hrs / Yr Hours NA Dump Truck, Tandem Axle 52.8 2080 981.76 008543 All Terrain Climbing Hoe NA 2080 008610 Excavator, Schaeff 68.0 2080 665.60 008780 Excavator, Schaeff 2080 008829 Ditchmaster w/Dump Box NA 2080 008595 Track Excavator 43.5 2080 1,175.20 008466 Excavator, Rubber Tire 66.0 2080 707.20 Depreciation Analysis, Tandem Axle Dump Trucks The Stormwater Enterprise Fund has on its inventory 24 Dump Trucks. 7 Tandem Axle 17 Single Axle Average depreciation to be computed and used in cost study. Inv. Annual No. Description Depr. 008544 Dump Truck, Tandem Axle 11,392.08 008608 Dump Truck, Tandem Axle 12,258.00 008609 Dump Truck, Tandem Axle 12,258.00 008611 Dump Truck, Tandem Axle 12,280.20 008663 Dump Truck, Tandem Axle 12,231.24 008692 Dump Truck, Tandem Axle 13,510.80 008809 Dump Truck, Tandem Axle 16,035.00 89,965.32 / 7 008543 All Terrain Climbing Hoe 17,084.28 008610 Excavator, Schaeff 10,554.36 008780 Excavator, Schaefl 17,117.40 008829 Ditchmaster w/Dump Box 33,302.04 008595 Track Excavator 27,000.00 008466 Excavator, Rubber Tire 11,928~57 / 2080Hrs =$ / 665.6 Hrs =$ / 665.6 Hfs =$ / 2080Hrs =$ / 1175.2 Hrs = $ / 707.2 Hfs =$ 12,852.19 Avg Annual / 981.76 Annual Hrs. $ 13.09 Hourly Dspr NA Hourly Depr 15.86 Hourly Depr~ 25.72 Hourly Depr NA Hourly Depr 22.97 Hourly Depr 16.87 Hourly Depr Zo,7<~ 008706 Pickup Truck 1,904,20 008784 Pickup Truck 2,037,24 008825 Pickup Truck 2,271.00 008862 Pickup Truck 2,009.20 008887 Pickup Truck 2,936.00 008888 Pickup Truck 2,936.00 14,093.64 / 6 = 2,348.94 Avg Annual / 2080 Hfs Annual Hfs $ 1.13 HourlyDepr ~pl3orflng Calcula~ons for Fringe Benefits .3eh Plan Rankle (E) (A) Fica/ Medicair (B) (C) (D) % of Retirement Life Ins Health TOTAL Sa___Jl 2,310 15 2,040 6,242.38 0.254324 19 Heavy Equip Oper (HEO) Avg 24,545. / yr. 1,878 12 Motor Equip Oper I (MEO I ) Avg'17,372. / yr. 1,329 1,635 10 2,040 5,013.66 0.288606 15 Motor Equip Oper II (EEO II) Av~ 20,146./yr. 1,54t 1,896 10 2,040 5,486,91 0.272357 17 11 Motor Equip Oper III (MEO III } Avg 22,237. /.yr. Laborer (Lab) Av~116,534. / yr. 1,701 2,093 10 2,040 5,844.00 0.262805 1,265 1,556 10 2,040 4,870.70 0.294587 Total (A) (B) (C) (D) (E) .0765 x Annual salary .0941 x Annual salary .0042/mo./$1,000.salary rd up to next 1,000. $170.00 / mo. Mid range for pay range used for annual salary 27,458 0.2723 Rd to .275 Adjustments for Absences Jpporting Calculations/or Annual Leave, Sick Leave, and Training Allocable to Ditch Maintenance 'ork Days per Year 5 days x 52 weeks/Yr 260 3nual Leave per Year 12 ck Leave per Year 12 hid Holidays 10 aining per Year 5.5 260 39.5 0.1519 =sk Management Schedule eaw Equipment $ ,23 per $100.00 / Yr Track Excavator Rubber Tire Excavator Schaeff/Menzi censed Vehicles $ 110.00/YR Dump~'uck, Tandem Axle Pickup Truck Annual Annual Hrs Per Hour Cost Charge Allocable Charge 135,000.00 310.50 1,175.20 0.26 83,500.00 192.05 707.20 0.27 79,733.50 183.39 665.60 0.28 NA 110.00 NA 110.00 981 ;76 0.11 2,080,00 0.05 Estimated In-House Cost Avoidable Costs: 1. See NOTE above 2, Roadside Ditches A) Providence Road Northbound 4,200 LF Equipment Track Excavator 5,280 Ft = 134 Hrs = 39.41 Ft/Hr 4,200 LF / 39.41 Ft/Hr = 106.58 Hfs required 106.58 Hrs x $ 28.24 / Hr = $ 771.64 Depreciation 106.58 x 22.97 / Hr Risk Management $ .26 / Hr X 106.58 Hre Dumptruck ( 2 ea ) 106.58 Hrs X 9.07 / Hr X 2 ea Depreciation 106.58 x 13.09 / Hr X 2 sa Risk Management $,11/HrX106.58HrsX2ea Sdpervisor Pickup 106.58 X 2.10 / Hr Deprecialion 106.58 x 1.13 / Hr X 2 ea Risk Management $ .05 / Hr X 106.58 Hfs Personnel ( 106.58 Hfs) Supervisor a 15.06 / Hr HEO 13.08 / Hr MEO II 10.09 / Hr MEOI (2aa) 7.20/Hr Laborer (flagman, 2 ea ) 7.20 / Hr Fringe Benefits (27.5 % of sa[aries ) 14.29 / Hr Adjust for Absences (. 1519 x Ssi) Total Personnel 963.48 ,394.07 ,075.40 ,534.76 ,534.76 ,788.18 ,259.35 B) North Landing Rd Eastbound 4,630 LF Equipment Rubber Tire Excavator 5,280 Ft = 71.67 Hrs - 73.67 Ft/Hr 4,630 LF / 73.67 Ft/Hr = 62.85 Hrs required 62.85 Hfs x $16.98 / Hr -- $1,067.19 Depreciation 62.85 x 16.87 / Hr Risk Management $ .27 / Hr X 62.85 Hrs Dumptruck (2 aa) 62.85 X 9.07 / Hr X 2 ea Depreciation 62.85 x 13.09 / Hr X 2 ea Risk Management $ .11 / Hr X 62.85 Hrs X 2 ea Supervisors Pickup 62.85 X 2.10/Hr Depreciation 62.85 x 1.13 / Hr Risk Management $ .05 / Hr X 62.85 Hrs Personnel (62.85 Hrs) Supervisor a 15.06/Hr MEO III 10.69 / Hr MEOI (2es) 7.20/Hr Laborer ( flagman, 2 ea ) 7.20 / Hr Fringe Benefits (27.5 % of salaries ) Adjust for Absences (.1519 x Ssi) Total Personnel Total Roadside Ditches r 3,009.82 2,448.14 27.71 1,933.36 2,790.26 23.44 223.82 240.88 5,33 9,550,00 1,067.19 1,060.28 16.97 1,140.10 1,645.42 13,82 131.99 71 .O2 3.14 473.26 671.87 905.04 905.04 812.68 572.34 4,340.23 Note: a b O~ Road Ditch Hope Haven / Salem Rd Ditch 6,600 LF Equipment Schaeff/Manzi 5,280 Ft == 214 Hfs = 24.68 Ft/Hr 6,600 LF / 24.68 Ft/Hr -= 267.43 Hrs required 287.43 Hfs x $14.32/Hr = $ 3,8~9,60 Depreciation 267,43 x $ 20,79 / Hr RIek Management $ ,28 / Hr X 367.43 Hrs Supervisor Pickup 287.43 X 2.10 / Hr Depreciation 267.43 x 1.13 / Hr Risk Management $ .05 / Hr X 257.43 Hfs Personnel (287.43 Hrs) Supervisor b 15.42/Hr M EO II Laborer 10.09 / Hr 7.20 / Hr Fringe Benefits (27.5 % of salaries ) Adjust for Absences (.1519 x Ssi) Total Personnel Supervises 10 Employees Supervises 8 Employees 3,829.60 5,559.87 74.88 561.60 302.20 13.37 1,032.28 2,698,37 1,925.50 1,555.44 1095.44 8,307.03 ...... 18~648.55 Providence Rd = .60 Utilization North Landing Rd = .50 Utilization Hope Haven Ditch = .25 Utilillzation Estimated Cost to Contract Out Competitive bids were solicited from the private sector for each of the jobs described above. Based on comparisons and evaluations of responses to bid RFP, Iow bidder is E.V. Williams. 1. Dam Neck Road Ditch 2. Roadside Ditches 3. Off Road Ditches Total Low Bid For E.V. Wifliams Comparison $ 161,723 NA 49,375 49,375.00 in Hou NA 29,745 Reconciling estimates: Overhead (bonding, bus license, ) Disposal Coats RCP - Reinforced Concrete Pipe ( $ 20,600 ) Administration ( Est $15,924 ) Contractor Profit 66,000 66,000.00 18,64___..~8 $ 277,098 115 375.00 ~ "WOaLO'S L~a=eST .aSOaT Ct~Y" CITY COUNCIL AGENDA NOVEMBER 8, 1994 CITY MANAGER'S BRIEFINGS: - Council Chamber - A. SOUTHEASTERN EXPRESSWAY Chris Lloyd, Maguire Group, Inc. B. OPERATING BUDGET: Five Year Forecasl E. Dean Block, Director, Management and Budget 10:30 AM II. INFORMAL SESSION Ao B. C. D. CALL TO ORDER - Mayor Meyera E. Oberndorf ROLL CALL OF CITY COUNCIL CITY COUNCIL CONCERNS RECESS TO EXECUTIVE SESSION - Council Chamber - 12:00 PM III. FORMAL SESSION - Council Chamber - A. CALL TO ORDER - Mayor Meyera E. Oberndorf 2:00 PM INVOCATION: Reverend Richard Keever Bayside Presbyterian Church PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA ELECTRONIC ROLL CALL OF CITY COUNCIL CERTIFICATION OF EXECUTIVE SESSION MINUTES 1. INFORMAL & FORMAL SESSIONS November 1, 1994 MAYOR'S PRESENTATION RESOLUTION -AMERICAN EDUCATION WEEK November 13- 19, 1994 H. CONSENT AGENDA All matters listed under the Consent Agenda are considered in the ordinary course of business by City Councit and will be enacted by one motion in the form listed. If an item is removed from the Consent Agenda, it will be discussed and voted upon separately. Finalization of $1,585,000.00 loan from the Virginia Revolving Loan Fund re sanitary sewer projects at Grayson/Bonney Road (CIP 6-006) and Dozler's Bridge (CiP 6-008): Third Supplemental Resolution to SUPPLEMENT and AMEND the Resolution adopted February 11, 1992, entitled "Master Water and Sewer Revenue Bond Resolution Providing for the Issuance from Time to Time of One or More Series of Water and Sewer System Revenue Bonds of the City of Virginia Beach', as previously supplemented; to provide for the issuance and sale of a taxable Water and Sewer System Revenue Bond. Series of t994; and, providing for the form, details and payment thereof and the financing of the cost of improvements to Ihs City's water and sanitary sewer facililies. Ordinance to TRANSFER funds between Water and Sewer Capital Projects to allow closing of a loan from the Virginia Revolving Loan Fund. Ordinance to authorize acquisition of property in fee simple for drainage improvements at Rosemont Road/Windsor Woods (ClP 2-115); and, acquisition of temporary and permanent easements of right-of-way, either by agreement or condemnation (LYNNHAVEN BOROUGH). Ordinance to authorize the City Manager to execute an Exchange of Land with WI#lama Holding Corporation to facilitate the construction of a public-use golf course on City- owned property on Seaboard Road. Ordinance to authorize a temporary encroachment into a portion of the right-of-way of Indian River Road to the Christian Broadcasting Network, Inc., re maintaining a commercial sign (KEMPSVILLE BOROUGH) 5. Ordinance authorizing tax refunds in the amount of $3,063.02. PUBUC HEARING 1. PLANNING Application of JOHN W. and ELLEN M. BLUMUNG for a Variance to Section 4.4(b) of the Subdivision Ordinance which requires all lots created by subdivision meet all requirements of the City Zoning Ordinance at 2276 Greenwell Road (BAYSIDE BOROUGH). Recommendation: APPROVAL Application of B. M. STANTON, JR. for a Conditional Use Permit for a ~r wash on the Southwest side of indian River Road, 300 feet more or less SoLed'mast of Kempsville Road (5217 Indian River Road). containing 33,802.56 square feet (KEMPSVILLE BOROUGH). Recommendation: APPROVAL Application of SOUTHLAND CORPORATION for a CondltionaJ Use Permit for an automotive service station in conjunction with a convenience stor~ at the Northwest corner of Independence Boulevard and Edwin Drive (496 Independence Boulevard). containing 1.061 acres (KEMPSVILLE BOROUGH). Recommendation: APPROVAL Ordinance to AMEND and REORDAIN Section 701 of the City Zoning Ordinance re use regulations for communication towers in the H-1 Hotel Dlatrict. Recommendation: APPROVAL Application of VIRGINIA CELLULAR, LTD. for a Conditional Use Permit for a communication tower at the Southeast intersection of Atlantic Avenue and 57th Street, containing 3.2 acres (VIRGINIA BEACH BOROUGH). Recommendation: APPROVAL UNFINISHED BUSINESS Resolution to request the Governor and the General Assembly to ensure the continued funding of improvements to, maintenance and policing of Route 44 following the removal of tolls. 2. Council Questions re Storm Water Management Presentation NEW BUSINESS 1. COUNCIL SPONSORED ITEM: ao Resolution to invite the Institute in Basic Life Principlee to establish an Advanced Training Institute for Troubled Youths and their Families in the City of Virginia Beach or elsewhere in the Hampton Roads area. L. ADJOURNMENT if you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 427-4303 Hearing impaired, call: TDD only 427-4305 (TDD - Telephonic Device for the Deaf) 11/03/94cmd AGENDA\I 1-08-94.PLN MINUTES VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia Mayor Meyera E. Oberndorf called to order the CITY MANAGER'S BRIEFING to the VIRGINIA BE~ICH CITY COUNCIL in the Council Chamber, City Hall Building, on Tuesday, 31ovember 8, 1994, at 10:30 A.M. Council Members Present: John A. Baum, Linwood O. Branch, III, Robert IL Dean, ~lliam gE. Harrison, Jr., l~ouis R. Jones, John D. Moss, Mayor Meyera E. Oberndorf and Nancy K. Parker Council Members Absent: Vice Mayor W~lliam D. Sessoms [ENTERED: 10:55 A.M.] Barbara M. Ilenley [ENTERED: 12:05 A,M,] Louisa M. Strayhorn [ENTERED: 10:45 A.M.] F~ce Mayor Sessoms, being a Corporate Officer of Central Fidelity Bunk, disclosed there were no matters on the agenda in which he has a "personal interest", as defined in the Act, either individually or in his capacity as an officer of Central Fidelity Bahia The Vice Mayor regularly makes this Disclosure as he may or may not know of the Bank's interest in any application that may come before City Council. Vice Mayor Sessorns' letter of September 27, 1994, is hereby made a part of the record CITY MANAGER'S BRIEFING SOUTHEASTERN EXPRESSWAY 10:$# A31. ITEM # 38555 Robert J. Scoff, Director of Planning, advised the ,~mtkamt~rn Expro~way was establi~ed as one of the City'~ top priorttla. In order to accommodate the City'~ transportation need~, the strategy of wcln~ding ~s~ng arterials lu~ significant limits Lc. envi~l constraints, impacts of displacemen~ ~ ,~aA~a~trn Exl~rtstway is a major step toward a tmdit-tmnl~ approach to dealing with tran~ needs. ~ F_,rprersway includes a light rah tarrtdor and one for HOV tro~al. This project is consistent with the Comprehensive Plan and Environmental Protection initiatives. The following four agencies have concurred and signed the Statement of Purpose and Ne~d: Environmental Protection ~ncy, U.~. Fid~ and W"ddttfe Service, the Corps of Engineen and tAe Natural Marine and Fisheria Service. Arthur Collins, Executive Director - Hampton Roads Planning District Commission, advised the 5oath~..sttrn ~y is an integral part of Chesapeake's circulation rystem and effects the Cities of Norfolk, Portsmouth and Suj~ollc The Oak Gro~e Connector is an element of the Sonthtartern Ex~r~tm~tty. The Kr. press~ay provides another option for getting to Virginia Beach. Chris M. l, loy~ F~ce President - Maguire Group, Inc., advised, for the first time in Virginia, the aforementioned Federal Resource Agencies have been brought together. Therefore, the process has been combined. The l. oc~i_on Public Hem'ing next week will not just be sponsored by the Virginia Department of 7)'ansportatton, but also by the U.S. Army Corps of Engineers, as pan of the public interest review for the permit process. It is envisioned with this process, not only will there be an acceptable environmental document addressing the impacts and mitigation associated, but also a p~rmit will be in hand. Two other major legislative initiatives are the Clean /Jr Amendments of 1990 atul tat Inner Modal Surface lhm.wo~n F_~iency Act of 1991 (ISTEA). Both the Clean ,4~r /lmendments and ISTEA have changed the playing field for major projects. Mr. Lloyd displayed the Typical Transportation D~,dopment Sections ffootprinO of the Southeastern Expressway. There is a mitigation package, which should address and minimize impacts. Direct impacts to w~land$ consume anywhere from 270 to 350 acres. There will be mitigation for direct impacts to wetiands, and there will be n~tt'~ation on site within the same drainage shed. There will also be mitigation associated with the relocation of residences and cultural resource impacts. There will be an assessment and an inventory of secondary and cumulative iml~cts associated with natural resources for the Soatheastern Exprexsway. A habitat evaluation program will be utilized to assess functions and values of habitat throughout the corridor Seventeen indicated species were evaluated throughout SoutAeastem Virginia to determine the nature of the habitat that would be disturbed by the SoutAeastern Expre~y alternatives. These assessments will be utilized to assist in the evaluation and development of a mitigation site. V'DOT will also be involved in consultation with U.S. Fish and W~ldiife Service for impacts. Probably the most significant elements of the environmental paclmge will be a Preservation and Conservation Component for Stumpy Lak~t and adjacent environs. Some method of enhanced coordination between Virginia Beach, Chesapeake and the Resource Agencies will be reviewecL Ken V~lkinson, Environmental Planner - Virginia Department of Transportation, referenced the Soatha~tern Expressway Project Schedule: November 14, 1994 November 21, 1994 December 2, 1994 December 1994 January 1995 Marc&lApril 1995 1~ 1995 E~rly winter 1995 Public Hearing The Radi~on - V'wginia Beach Public Hearing Holiday Inn -Chesapeake Deadline for Commmts A transcril~ of the Public Hearing (both written and oral) will be prepared for the Commonwealth Transportation Board. Cities (P'wginia Batch and Chesap~alvt) shall advise VDOT of their alignment selection by Resolution. Federal/State Agencies Review Present to Commonwealth Transportation Board comments from Public Hearing, the Environmental document and the Resolutions from the C~ Councils. Develop fuml Env~Onmental Impact Statement and Mitigation Plan for impl~metttatlo~~ of the project. Federal Higkway tdministnaion develops a record of decision. This will b~ adve't, ised in the Federui Register. November 8, 1994 ClTY M~4NAGER°S BRIEFING SOUTHE~4STERN EXPRESS~FAY ITEM # $8535 (Continued) After completion of the abov~ the Cori~ of Engimttr~ Permit will be finalized. After wtdcl~ final design and acquisition of right-of-way will be neeressary. SOUTHEASTERN EXPRESSWAY PURPOSE & NEED STATEMENT Regional Population growth I~md Use Planning ~conomic De~eloprnent Natural Environment Preservation Transportation Deficiencies Safety and Emergency Evaluation