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SEPTEMBER 3, 2002 MINUTESCITY COUNCIL MA YOR MEYERA E OBERNDORF, At-Large VICE MA YOR ROBERT C MANDIGO, JR, Kempsvdle ~Dtstrtct 2 MARGARET L EURE Centervdle - Dtstrlct I LOUIS R JONh& Baywde - Dt~trlct 4 REBA S McCIMNA¥ Ro~e Hall - Dt~trtct 3 RI( HARD A MADDOX, Beach - Dt~trtct 6 JIM RI~EVE, Prtnce~ ~ Anne - Dt~trtct 7 PETER W SCHMIDT, At-Large ROY A V1LLANUEVA At-Large ROSEMARY WILSON, At-i arge IAMEq L WOOD, Lynnhaven -Dt~trtct 5 lAMES' K SPORE, Ctty Manager LESLIE L LILLEY, Ctty Attorney RUTH HODGES SMITH, MMC, Cay Clerk "COMMUNITY FOR A LIFETIME" CITY COUNCIL AGENDA ( lit HALL BUILDING I 2401 COURTHOUSE DRIVE VIRGINIA BEACH, ITRGINIA 23456-8005 PttONE (757) 427-4303 FAX (757) 426-5669 E MAIL Ctycncl~vbgov corn September 3, 2002 I. CITY MANAGER'S BRIEFINGS - Conference Room - 2:00 PM A Bo SANDBRIDGE ROAD CORRIDOR OPTIONS John Herzke, City Engineer WATER USE RESTRICTIONS Clarence Wamstaff, Director of Pubhc Works II REVIEW OF AGENDA ITEMS III. CITY COUNCIL LIAISON REPORTS IV. CITY COUNCIL COMMENTS V. INFORMAL SESSION - Conference Room - 4:00 PM A CALL TO ORDER - Mayor Meyera E. Oberndorf B ROLL CALL OF CITY COUNCIL C RECESS TO CLOSED SESSION VI FORMAL SESSION - Council Chamber - 6:00 PM A CALL TO ORDER - Mayor Meyera E Oberndorf B INVOCATION: Reverend G Kelth Almond, Pastor Community United Methodist Church C. PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA D. ELECTRONIC ROLL CALL OF CITY COUNCIL E CERTIFICATION OF CLOSED SESSION F. MINUTES 1. INFORMAL AND FORMAL SESSIONS August 27, 2002 G AGENDA FOR FORMAL SESSION Ho ORDINANCES/RESOLUTION 1. Ordinances re the City Code: go AMEND §§ 35-253, 35-254, 35-258, 35-259, 35-260, 35-263 and ADD § 35-258 1 of the City Code re administration and collection of local telecommunication service taxes b AMEND § 21-207 re liquidated damages for violation of permitted weight limits C° AMEND and REORDAIN § 12-25(a) re designating the Chief of Fire Protection or his designee as the Fire Marshal Ordinance to AUTHORIZE the City Manager to AMEND and further EXTEND an option to acquire property located at Rudee Loop. 3. Ordinances re temporary encroachments into portions of the City's nghts-of-way: City maintenance easement by OLYMPIA BENDIX, LLC, re a storage building at 295 Bendix Road. (DISTRICT 5 - LYNNHAVEN) Lake Wesley by WILLI FENSKE re boat hft, existing floating pier and replacing four existing mooring piles at 500 SouthsIde Road (DISTRICT 6 - BEACH) Ordinance to AUTHORIZE the City Manager to execute a LEASE of city-owned property at Ocean Lakes Community Park containing 13 06 acres to Virginia Beach Little League, Inc for operation of a youth baseball league (DISTRICT 7 - PRINCESS ANNE) o Ordinance to AUTHORIZE the City Manager to EXECUTE a Deed of Boundary Settlement with the United States of Amenca re Red Wing Lake Golf Course of a 5-acre boundary overlap (DISTRICT 6- BEACH) o Ordinance to TRANSFER $300,000 from various Storm Water Capital ProJects to Capital ProJect #7-012, to extend the piped drainage system in Fair Meadows. (DISTRICT 2 - KEMPSVILLE) Resolution APPROVING issuance of Multlfamily Housing Bonds in behalf of CP Atlantic, L.P. for a project located at 999 Atlantis Drive (Atlantis Apartments) (DISTRICT 6 - BEACH) MINUTES VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia 3 September 2002 Mayor Meyera E Oberndorf called to order the CITYMANA GER 'S BRIEFING re SANDBRIDGE ROAD CORRIDOR OPTIONS tn the City Councd Conference Room, Ctty Hall Buildmg, on Tuesday, September 3, 2002, at 2 O0 P M Counctl Members Present Margaret L Eure, Reba S McClanan, Rtchard A Maddox, Vice Mayor Robert C Man&go, Jr, Mayor Meyera E Oberndorf Jim Reeve, Peter W Schmtdt, Rosemary Wdson and James L Wood Counctl Members Absent Louts R Jones [Entered 2 10 P M] Ron A Vdlanueva [Entered, 2 14 P M] -2- CITY MANAGER'S BRIEFING SANDBRIDGE ROAD CORRIDOR OPTIONS 2:00 P.M. ITEM # 50085 John Herzke, Cay Engtneer, presented tnformatton relattve the status of acttvities for the Sandbridge Road Corridor Study Mr Herzke advtsed stxteen (16) members parttctpated on the Citizens Advisory Committee Mr Herzke introduced those members tn attendance Councilman Jim Reeve Chairman Molly Brown President - Friends of Back Bay Fred Greene President - Back Bay Restoration Foundation Ann Henley Tabernacle United Methodist Church Eric Anderson Businesses along western portion of Corridor Chandler Dennis Businesses along eastern portion of Corridor The CAC has been meettng on a monthly basts stnce February developtng alternattves, concepts and absorbmg transportatton and traffic tssues The Consultants, Vanasse Hangen Brustlin, lnc, were employed to conduct the Study relattve the Sandbridge Corridor improvements Mr Herzke recogmzed Bobby Hester, P E, ProJect Manager and Chrts DeWttt, Envtronmental Planner wtth Vanasse Hangen Brustlin, Inc (VHB) Mr Herzke expressed apprectatton to Melanie Grtssom, P E Sentor Project Manager and Bobby Wheeler, Pubhc Works -Engtneertng Thts tnformatton wdl be presented at a Citizens Information Meeting on Thursday, September 5, 2002 (4 30 P M to 7 30 P M) at RedMdl Elementary School Thepubhc comments wdl be tncorporated tnto the Study and then the CAC wdl reconvene, meet wtth the consultants and formulate a final recommendatton to be brought to the City Councd tn November Councdman Reeve referenced the Ctttzens Information Pamphlet, the four (4) alternattves to be presented, and on the last page, the matrtx deptcttng tmpacts Mr Hester referenced the project htstory Built on previous Study from 1999 Added to Ctty Master Transportatton Plan tn 2001 Destgn to Ctty/Vtrgtnta Department of Transportatton (VDOT) standards NEPA Envtronmental Document Rtght-of-Way agreement wtth Umted States Ftsh and Wtldhfe Servtce The ulttmate goal of the Study ts to develop a preferred ahgnment for the roadway which wtll tmprove safety and flow of transportatton along the corridor, tntegrate envtronmentally frtendly, aesthettcally pleastng destgn and improve quality of hfe for area restdents and visitors Mr De Wttt advtsed that tn addttton to worktng wtth the CA C on a monthly basis, the Study Team has hem a sertes of Stakeholder tntervtews A sertes ofcommumty meetings has been conducted church groups, ClVlC leagues and "one-on-one" coffee sesstons The Sandbridge Corridor Improvements has a project webstte whtch contatns tnformatton and &splays graphtc oft he alternative ahgnments There ts also an e-mad sectton for comments September 3, 2002 -3- CITY MANAGER'S BRIEFING SANDBRIDGE ROAD CORRIDOR OPTIONS ITEM # 50085 (Continued) CA C GOALS - MISSION STATEMENT The Mtsston of the Sandbridge Road Corrtdor Citizen Advisory Commtttee (CA C) ts to build consensus for multt-modal transportatton improvements to the Sandbrtdge Road Corrtdor, tncludtng assessments of traffic impacts for adjacent properties. This corrtdor extends along Prtncess Anne Road from General Booth Boulevard to Upton Drtve, and along Sandbrtdge Road from Upton Drive to Sandfiddler Road, tncludtng the Lotus Drtve area The CAC will focus on potenttal ahgnment of thts corrtdor only The CAC wtll recommend to Ctty Counctl a reahgnment to meet the overall pubhc needs of provtdtng enhanced traffic capactty and safety The alternattve should also tncorporate roadway beauttficatton and recreattonal opportuntttes while mintmtzing tmpacts to senstttve resources, historic landmarks and adjacent commumttes Mr DeWttt advised the September 5, 2002, Citizens Information meettng wtll encompass the four (4) ahgnment alternattves, aesthettcs/recreatton plans, envtronmental data and comment forms Mr Hester advtsed the Sandbridge Corridor Improvements Project ts a comprehenstve study to develop corrtdor tmprovement recommendattons along approxtmately 6 3 mtles of Sandbrtdge Road The project wtll provtde a four-lane dtvtded roadway for Prtncess Anne Road from the tntersectton of General Booth Boulevard to Sandbrtdge Road and Upton Drive to Atwoodtown Road There are two major waterway crosstngs, proposed to be brtdges (wetlands tnvolved) It wtll also reahgn and provtde a two-lane roadway on Sandbrtdge Road from Atwoodtown Road to Sandfiddler Road Typical Section 4-Lane General Booth Boulevard to ~4twoodtown Road 4 lanes 143' right-of-way 45 mph destgn speed Curb and gutter Two 8' multt-use paths Landscaped mechan and buffer areas Utthttes overhead outstde rtght-of-way Roadway hghttng Section 1 - General Booth Boulevard to Upton Drive ALIGNMENT 1 Mlntmum Curves Mtntmum Wetland Impacts Least right-of-way acqutsttton Restdenttal dtsplacement (1) Mtmmum school property impacts Improve Upton tntersectton ALIGNMENT 2 Maximum Sweeping Curves Maxtmum Wetland Impacts Maxtmum rtght-of-way acqutsttton No Restdenttal Dtsplacement Most School property tmpacts Improve Upton tntersectton September 3, 2002 -4- CITY MANAGER'S BRIEFING SANDBRIDGE ROAD CORRIDOR OPTIONS ITEM # 50085 (Continued) ALIGNMENT 3 Moderate Curves Moderate Wetland lmpacts Moderate right-of-way acquisition Residential Displacement (1) Most school property impacts Improve Upton Intersection ALIGNMENT 4 (basically tn same corridor as Alignment 1) Minimum Curves Minimum Wetland lmpacts Least right-of-way acquisition Residential Displacement (1) Minimum school property Impacts Improve Upton intersection Section 2 - Upton Drive to New Bridge Road ALIGNMENT 1 Closest to Existing Roadway Mtmmum Wetland lmpacts Least right-of-way acquisition Residential Displacements (1) ALIGNMENT 2* South of Existing Roadway Moderate Wetland Impacts Moderate right-of-way acquisition Residential Displacement (1) *Ahgnment 1 comes down the existing Sandbrtdge Road, Ahgnment 2 runs behind the houses as per the preference of the community tn a poll conducted by Councilman Reeve ALIGNMENT 3 Further south of Existing Roadway Maximum Wetland lmpacts Maximum right-of-way acquisition No Residential Displacements Impacts Equtktds Development Optional cul de sac/feeder road ALIGNMENT 4 Closest to Existing Roadway Minimum Wetland lmpacts Least right-of-way acquisition Residential Displacement (1) One-way traffic pattern September 3, 2002 -S- CITY MANAGER'S BRIEFING SANDBRIDGE ROAD CORRIDOR OPTIONS ITEM # 50085 (Continued) Section 3 - New Bridge Road to Hell's Point Creek Typical Section 2-Lane (80/90 fi rtght-of-way) Reduced Impacts 80-foot typtcal sectton ts a destgn exceptton Path on one side ts 12feet Roadway hghttng ALIGNMENT 1 Uses Extsttng Roadway Mtntmum Wetland Impacts Least rtght-of-way acqutsttton Complex matntenance of traffic No Restdenttal Dtsplacement Bustness Dtsplacement (1) Recreattonal Opportuntttes Typical Section 2-Lane (11 Off rtght-of-way) Atwoodtown Road to Sandpiper Road 2 lanes 11 O-foot right-of-way 45 mph destgn speed Shoulders &foot with swales Two &foot mu[ttuse paths Natural landscaptng Utthttes overhead outstde rtght-of-way Roadway hghttng ALIGNMENT 2 Creates Vtllage Area Moderate Wetland lmpacts Moderate rtght-of-way acqutsttton Maxtmum Restdenttal Dtsplacements (2) Recreattonal Opportuntttes ALIGNMENT 3 Creates Vtllage Area Maxtmum Wetland lmpacts Maximum rtght-of-way acqutsmon Moderate Restdenttal Dtsplacements (1) Recreattonal Opportuntttes Longest Brtdge Crosstng Impacts Untted States Ftsh and Wddhfe Servtce property ALIGNMENT 4 One- Way Optton Mtntmum Wetland lmpacts Moderate rtght-of-way acqutsttton No Restdenttal Dtsplacements Recreattonal Opportunities Bustness Dtsplacement (1) More Complex Brtdge Structure September 3, 2002 -6- CITY MANAGER'S BRIEFING SANDBRIDGE ROAD CORRIDOR OPTIONS ITEM # 50085 (Continued) Relattve recreational access, Mr Hester &splayed a graphic of Lotus Pond, Tabernacle Umted Metho&st Church and the extsttngparsonage The CAC responded tn favor relattve relocaaon of the pastor's house on the other stde An access road ts deptcted comtng off the proposed roadway and gtves parian& a turn- around, canoe access launch potnt and an tnformattonal shelter A graphic deptcttng Lotus Pond on the west side &splays the extsttng Sandbrtdge Road, the proposed road and a canoe drop-off, which would be stmdar to the Dozier's Creek Crossing The thtrd recreattonal opportumty wouM be the Hell's Point Creek, deptcttng "blueways", "greenways ", paths and tratl systems avadable for the utthzatton of the pubhc and could be incorporated tnto the design Section 4 - Hell's Point Creek to Sandbridge Beach ALIGNMENT 1 Improves Geometry Access to Realty Compantes Improved Moderate Wetlands Impacts Moderate rtght-of-way acqmsttton Large on-street pariang area ALIGNMENT 2 Maxtmum Wetland lmpacts Maxtmum right-of-way acqutstaon Maximum Restdenttal Dtsplacements (2) Impacts extsang pariang Access to Realty Compames Improved ALIGNMENT 3 Closest to Extsttng Roadway Moderate Wetland Impacts Moderate rtght-of-way acqmsttton Moderate Restdential Impacts Access to Realty Compames Improved On Street Pariang and Mechan ALIGNMENT 4 Improves Geometry Moderate Wetland lmpacts Moderate rtght-of-way acqutsttton Access to Realty Compantes Improved Mr Hester &splayed the Sandbridge Beach Entry Options' Alternative 1. Off-Street Pariang and Town Green, turn around or open area to provtde a vtew of the ocean Pulled pariang on the stde and tied to extsttng pariang spaces owned by the Ctty Alternative 2 Off-street pariang and Town Creek (larger green area and relocatton of the pariang bestde the extsttng retatO Alternative 3 Median separatton andparallel pariang on Sandbrtdge Road Off-street parkmg Alternative 4: Off-street pariang and new retad plaza, addtttonal pariang and utthzatton of the Ctty property tn the rear for pariang Alternative 5 Parallel pariang on Sandbrtdge Road, 80 on-street pariang spaces prtor to reachtng the oceanfront September 3, 2002 -7- CITY MANAGER'S BRIEFING SANDBRIDGE R O/ID CORRIDOR OPTIONS ITEM # 50085 (Continued) Mayor Oberndorf requested further clartficatton of the Matrix on the alternatives to deptcttng the costs of each segment of the proposed Corrtdor, brtdge crosstngs, and canoe and kayak areas Mr Herzke advtsed the Sandridge Corridor Improvements (Project CIP 2-151) fundtng entatls only the prehmtnary engineertng and study prodect At the approprtate ttme, the staff plans to request the Vtrgtnta Department of Transportatton (VDOT) approve thts as a project E. Dean Block, Director of Pubhc Works, advtsed the project is not tn the Metropolitan Planning Organization (MPO) Transportation Plan; and, we wtll not be able to schedule this wtthtn the Plan until 2004 In order for this to be included as a VDOT project, tt must be a part of the Regional Plan Mr Hester advtsed, relative the cemetery and the church, detaded survey and destgn tnformatton was performed Based on the horizontal and verttcal tmpacts, there wtll not be signtficant tmpact on the cemetery The Ctty's gradtng wtll be on the edge oft he cemetery. Graves will not be disturbed Through that one sectton, the road would be closed one lane at a ttme for the duratton to construct thts parttcular portton There wtll be some tmpact on the parktng tn the front of the church because of the hetght of the brtdge tn that crossing locatton Access can sttll be provtded There ts much land tn that area and Mr Hester beheves the parktng situation can be resolved. Power hnes will be relocated However, as the cost of undergroundtng these hnes ts stgntficant. The current plan ts to have the power hnes rematn overhead Counctl Lady Wtlson requested the matrtx tnclude, for comparison, the same information for the stretch of Nimmo Parkway Mr Herzke advtsed the Ntmmo Parkway study was hmtted to the extsttng rtght-of-way, approxtmately 100 to l l O-foot Thts project entatled more room betng created, espectally on the western portion of Sandbrtdge Mr Block advtsed the Nimmo Parkway study was not to the level of engtneertng detail as thts Sandbridge Corridor Study, but the tnformatton and a cost range will be provided Mr Herzke advtsed differences tn the two stuches wtll be explatned The other study contatned a bikeway, but tt was only on one stde of the road Mr Herzke advtsed Counctl Lady Eure the constructton cost of each of the Alternattves dtd include acquisition of property An industry standard between 3 to 5% (cumulative each year) could be uttltzed as an inflation rate, however, when the funds would be received ts dtfficult to ascertain The earhest VDOT funds could be recetved would be two years from now and whether VDOT would be tn a posttton to fully fund the proJect at that potnt ts very dtfficult A rough esttmate for the utthty relocations has been tncluded, however, a ftrm cost has not been provtded through Domtnton/Vtrgtnta Power Relative btke tratls, multi- use paths, addtttonal fundtng sources (grants) have been revtewed to determtne if these can be secured Counctlman Maddox tnqutred of the cost of a four-lane road utthztng the prevtous Nimmo concept Mr Herzke beheves the cost wtll be approxtmately $17-MILLION, but he would have to vertfy thts Mr Block advtsed the costs are not comparable to those tn 1999, as thts Study has a level of detail not prevtously avatlable Informatton can be provtded tn approxtmately two weeks with an explanation of the dtfferences tn the two projects Counctl Lady Eure referenced the Nimmo Ferrell Parkway extension and beheves ~f the rtght-of-way ts built, the cost would be $4 to $8-MILLION depen&ng upon the length of the Ashville Creek Bridge Mr Block shall vertfy and provtde tnformatton Counctlman Schmtdt referenced the 4-lane mandate extsts trrespecttve of whether you butld Nimmo or Sandbridge Road (section of Prtncess Anne Road between General Booth) Mr Block advised safety improvements mtght be accomphshed on the rematnder of Sandbridge Road There was, at one trine, a project encompassing approxtmately $800,000 to accomphsh thts Those funds were transferred to make thts study posstble Mr Block dtd not beheve there would be a substanttal change tn numbers Mr Herzke advtsed Counctl Lady V?tlson the study ts approxtmately one-half to three-fourths complete If Ctty Counctl chooses to go tn a different &rectton, proposals would then have to be sohctted to obtatn a design consultant The contract could not be continued wtth a change to the scope of the study If Councd chooses to cease the study, the rematmngfunds could be utdtzed for another study Mr Block advtsed City Counctl would have to amend the removal of Ntmmo Parkway from the Master Transportatton Plan Mr Block advised Vtce Mayor Man&go there ts a 2-lane road from Sandbrtdge Road back to Atwoodtown The canoe launches and other factlittes are often tncluded when the opportumty exists Mr Herzke advtsed Counctlman Reeve septtc tank locattons have not been examined. If for some reason, the Ctty dtd encroach upon a restdents' septtc field due to ratstng of the road, thts could result tn dtsplacement of addtttonal homes Counctlman Reeve referenced from Hell's Potnt up to McClanan 's curve the road would have to be raised anywhere between 3 to 5feet September 3, 2002 -8- CITY MANAGER'S BRIEFING SANDBRIDGE ROAD CORRIDOR OPTIONS ITEM # 50085 (Continued) Mr Herzke advtsed 40 to 80 individuals wtll have to go through either condemnation of thetr land or negotiate wtth the Ctty or VDOT to buy thetr land The Ctty does not have the power to condemn property from the Federal Government Counctlman Reeve advised, stnce tts tnceptton, he has been a member of the CAC The Ctvtc Leagues believe Nimmo Parkway has been owned by the Ctty for decades and should be reevaluated on tts mertts Councdman Reeve requested the contract be mo&fled for VHB to reevaluate the last one mtle of Nimmo Parkway. Vtce Mayor Man&go belteves the residents need a safe way out Counctl Lady McClanan advtsed the history of the project has been volatde Counctl Members should revtew safety and how transportatton serves the area Counctl Lady McClanan referenced the new bridge and the road that just opened thts Summer at Nags Head The youngpeople on the West Coast are "wtld" about Nags Head The transportatton functtons well Counctl Lady McClanan concurred with Councilman Reeve All of the facets must agatn be placed "on the table" Councd Lady Wilson suggested the study be placed on "hold" Councdman Maddox concurred with Councd Members McClanan and Reeve Counctlman Jones DISCLOSED all of the alternattves presented wtll tmpact property owned by him The Ctty Attorney advtsed as he ts a member ora group of property owners whose properttes the alternattves would tmpact, however, he would be able to partictpate tn the transactton Councilman Jones has no problem wtth revtewtng the other study Counctlman Vtllanueva tnqutred relative the cost of the new feastbtltty study for Nimmo Parkway. Mr Block advtsed the Ctty can mo&fy the extsttng contract re the Sandbrtdge Corrtdor The staff will confer wtth the Ctty Attorney and Purchastng However, he &d not believe the scope of the project could be changed for an entirely &fferent corrtdor Prevtous to the htrtng of another consultant, Council Lady Eure requested that detailed tnformatton be retnved from the achteves Mr Block ts well versed on the Nimmo Parkway study Councdman Schmtdt referenced one of the most tmportant things to do wtth the exceptton of expen&ng funds, ts to request an au&ence wtth the regulatory agency for their arttculatton of concerns, pros and cons Vtce Mayor Man&go requested the Citizens Information Meeting remain as scheduled Mr. Block summarized the destre of City Councd to be provided a htstory of the projects, the previous tnformatton presented to Ctty Counctl and their decisions Thts tnformatton wtll be updated and provtded to the Ctty Counctl The Citizens Information Meeting wtll rematn, as scheduled As per the suggestton, Counctl Members Reeve and Schmtdt wtll be avatlable to meet wtth the regulatory agenctes tn the future Mayor Oberndorf wtshed to be assured the cost for the Sandbridge Road tmprovements has not been so tnflated as to make tt onerous to the Ctty Counctl and what amentttes are tnvolved to count tn the cost of both projects Mr Block advtsed staff would do everythtngfeastble to make the costs comparable, even if some of the extra amentttes has to be removed These extras are not a major portton of the cost The Sandbridge Corridor is expensive because it is 6 ~ miles long There ts one bridge on the Nimmo Parkway project and two brtdges on the Sandbridge Corridor project September 3, 2002 -9- CITY MANAGER'S BRIEFING WATER USE R~STRICTIONS 3:26 P.M. ITEM # 50086 Concerntng the Governor's Executive Order 33, Mayor Oberndorfhoped the consensus of the Ctty Counctl would be to appeal to the Governor, relattve the utihzatton of wells, as the ctty ts not tn the bastn where the drought has severely affected m&vtduals. Clarence Warnstaff, Dtrector of Pubhc Utthttes, referenced the Governor's Executive Order 33, tssued on Frtday, August 30, 2002, DECLARING a State of Emergency Prtor to the Governor's Declaratton, Mr. Warnstaff was scheduled to brtef Ctty Counctl concerntng water restrtcttons The Roanoke River basin ts expertencing an excepttonal severe drought. AdJustments have had to be made as a result of the Executive Order. Mr Warnstaff referenced the shdes and advtsed the water facthttes deptcted tn "red" are owned and operated by the Ctty of Norfolk The "blue" hne tn&cates the Lake Gaston Pipeline whtch termtnates tn Isle of Wtght County, just south of Windsor It ts also the terminus locatton for two raw water transmtsston lines owned by the City of Norfolk one ortgtnatmg in the Blackwater River and the second one ortginattng tn the Nottoway River Water from the Lake Gaston project, the Blackwater River and the Nottoway River discharge at the same locatton tnto a series of reservotrs that are owned and operated by the City of Norfolk The Lake Gaston water ts delivered and stored tn these reservoirs for conveyance through Norfolk's raw water transmisston system and treated at the Moore's Brtdges Water Treatment Plant, then ptcked up along the common boundary for &strtbutton throughout the Ctty The water servtces contract wtth the Ctty of Norfolk requtres Norfolk to recetve water from the Lake Gaston project, convey tt through thetr system, treat the water and dehver tt to Vtrgtnta Beach Thts contract was signed tn 1993, and became effecttve January 1998. The Lake Gaston and Roanoke Rapids Reservoirs are both owned and operated by l/'trgtnta Power (now Domtnton Resources) These Reservotrs were destgned, butlt and operated for the sole purpose of producing electrtctty They were built after the Corps of Engtneers butlt Kerr Reservoir The majorpurpose of butl&ng Kerr Reservoir was to prevent major floo&ng downstream tn the Roanoke River 75% of the Roanoke River Basin hes tn the Commonwealth of Vtrgtnta Certatn portions of the Untted States are expertenctng a severe drought The exceptional severe drought cuts rtght through the Roanoke River Basin tn Vtrgtnta (the City's source of water) The ratn occurrtng within the last week was not enough to end the drought The pump statton is located at Lake Gaston, however the water removed comes from the flow of the rtver It ts the water that falls wtthtn the Roanoke River Basin, passes through Kerr Reservoir, through Lake Gaston and through Roanoke Rapids Therefore, an tn&cator of the drought con&tions extsttng tn the Roanoke River Basin can be measured at Kerr Reservoir The State regulattons tn&cate water utthty systems shall be destgned and operated to sustain a drought equal to the 1930-31 Drought A new standard ts betng set 12-Month Average Inflow to Kerr Reservoir: 1912 to 2002 Average (93 yeas) 7, 600 cubic feet per second (cfs) In 90 of 93 years 4, 000 cubtc feet per second or greater 1330-31 Drought 3,100 cubic feet per second 1980-81 Drought 3, 000 cubtc feet per second 2001-02 Drought 2, 000 cubtc feet per second Mr Warnstaff &splayed charts tn&cattng Inflows to Kerr Reservoir (12-Month Running Average), Kerr Reservoir Forecast as of August 29 2002, and Norfolk Water System Storage Capacity Relattve Kerr Reservoir, fishtng tournaments are an economtc drtver tn this regton The Lake Gaston ProJect today remams fullyfuncttonal Water could bepumped, tf necessary The recent heavy tarns have fallen prtnctpally east ofi-95 Vtrgmta Beach ts the largest water user tn the Roanoke Rtver Bastn September 3, 2002 -lO- CITY MANAGER'S BRIEFING WATER USE RESTRICTIONS ITEM # 50086 (Continued) VIRGINIA BEACH PROFFERS TO THE FERC In order to facthtate FERC approval of the Lake Gaston ProJect tn 1995, Vtrgmta Beach made a number of proffers to the agency, The proffers were taken from the envtronmental enhancements that were tn the fatled settlement agreement wtth Norfolk Carohna FERC dechned to make the proffers btnchng tn the Lake Gaston hcense agreement, but tncluded a warning to Vtrgtnta Beach "We fully expect Vtrgtnta Beach to be true to tts word, and wtll not hesttate to take whatever actton may be appropriate tn the event that Virgtma Beach fads to follow through on tts promtses" FERC Order, July 26, 1995 VIRGINIA BEACH PROFFERS TO THE FERC Four (of 10) dealt wtth conservation Matntatn an active and ongoing conservatton program Support regtonal conservation Purchase surplus water (tf avatlable) durtng major droughts Implement water use restrtcttons during major droughts VIRGINIA BEA CH CONSER VA TION EFFOR TS Vtrginta Beach has had a conservatton program since 1976, tncluchng education, butldtng codes, mecha, rate structure and rebates. Vtrgtnta Beach provtdes about 30% of the financtal support for Hampton Roads Water Effictency Team Vtrgima Beach ts one of the foundtngfathers Vtrgtnta Beach has been buying 10 mgd of surplus water from Norfolk stnce mtd-December 2001 Thts allows reduced pumpingfrom Gaston 50 mgd down to 34 mgd (about 50 cfs or 2% of extsttng releases from Kerr Reservotr) Lake Gaston's 50-year FERC license is up for renewal. North Carohna and the federal fish agencies have certatn powers and authortty tn the proceechng that Vtrgtnta and Vtrgtnia Beach do not North Carohna has stated that one of its goals tn the rehcenstng ts to make the Vtrgtnta Beach proffers btnchng Virgima Beach has tn&cated that tt wtll be "true to its word "Although the Ctty 's purchase of surplus water from Norfolk has been well recetved tn North Carohna and tn the Kerr/Gaston, regton the focus has moved to the lack of water use restrtcttons tn Vtrgmta Beach Mr Warnstaff &splayed a North Carohna news arttcle appeartng tn the Ltttleton Observer entttled "Grass is Greener in Virginia Beach" Thts arttcle crtttctzed Vtrgtnta Beach for not betng on water use restrtcttons The Governor's Executive Order bans lawn watertng, washtng vehtcles or filling swimmtng pools wtth surface water or groundwater It apphes to all water systems, prtvately-owned wells and excludes commerctal car washes, pools used by health care facthttes and night ttme watertng of golf course tees and greens There ts no "three gallon bucket" exceptton Lawn means grass only. Trees, shrubbery, flowers, gardens and other vegetatton are not tncluded No other uses are restrtcted (pressure washtng, ornamental fountatns, dust suppresston, outdoor showers, etc ) Enforcement ts left up to the local government although tt does not appear to be mandatory Authortty ts provtded to "estabhsh, collect and retatn fines for vtolattons" Locally, tmpact ts expected to htt pool contractors, well drtllers, trrtgatton system tnstallers and landscape matntenance compantes the hardest September 3, 2002 -ll- CITY MANAGER'S BRIEFING WA TER USE RESTRICTIONS ITEM # 50086 (Continued) Mayor Oberndorf referenced tn one oft he memorandums, the Governor referred to the 2,200 permtts watttng to be cleared by the State to either drill a new well or salvage an old well VIRGINIA BEA CH ORDINANCE (Section 3 7-21) The Ctty's water restrtctton ordinance requires a declaration of water supply shortage by Counctl It goes beyond Executive Order 33, however, private well water use ts not tncluded Includes all vegetation, all extertor surfaces, all mobtle equipment, ornamental fountatns, pools water from fire hydrants and water served tn restaurants (unless requested by patron) There ts a "three gallon bucket" exceptton There ts an appeals board to deal with hardships The Vtrgtnta Mumctpal League called a meettng today, September 3, 2002, to confer wtth members of the Governor's staff relative the Governor's Executive Order Tom Leahy, Water Resources Manager - Pubhc Utthttes, ts representtng the Ctty AL TERNA TIVES Accept Executive Order 33, as is. Seek modifications Exempt the use of private wells Exempt uses critical to the sustainability of an economic enterprise Allow the "three gallon bucket" rule Allow an Appeals Board. Ask that Virginia Beach be allowed to substitute its own water use restriction ordinance in lieu of Executive Order 33. Mr Warnstaff requested that spectfic recommendations be scheduled for consideratton by the Ctty Counctl on September 10, 2002 Thts wtH allow an opportuntty for the Water Task Force, comprised of Mayor Oberndorf Counctlman Jones, the Ctty Manager and the Ctty Attorney, to convene and revtew the events Mr Warnstaff has a meettng thts afternoon wtth other Pubhc Utthty Dtrectors tn the regton to determtne thetr optntons of the Governor's Executive Order Since the mtd 1970's, the Ctty has expertenced on a per capita basts, a permanent reductton tn water demand of about 25% Advertisements have appeared tn The Beacon for the last three to four weeks urging residents to conserve water Stnce 1994, through the toilet rebate program, over 30,000 toilets tn the ctty have been exchanged at a cost of $2. 7-MILLION to the Water and Sewer Enterprise program There ts an extenstve educatton program conducted wtth the ctttzens This year an education program tn the pubhc schools reached over 12, 000 students Thts program has been conttnuingfor over l O years The Ctty has the most comprehenstve water conservatton program of any local government tn l/'trgtnta Thts Ctty Counctl has provtded leadershtp, support and funchngfor the programs Mr Warnstaff assumed the Governor exempted Southwestern and Northern Vtrgtnta from the water restrtcttons, as the evtdence must have tndtcated these regtons were not tn a drought. Robert Matthtas, Asststant to the Ctty Manager, advtsed the Fairfax Reservoirs are 98% capacity and the far Southwest ts tn a stmtlar sttuatton September 3, 2002 - 12- AGENDA RE VIE W SESSION 4:20 P.M. ITEM # 5008 7 H 10rdtnance re the Ctty Code AMEND 393g 35-253, 35-254, 35-258, 35-259, 35-260, 35- 263 and ADD ~g 35-258.1 of the City Code re admtmstratton and collectton of local telecommunication service taxes Councilman Maddox advtsed the Commtsstoner of Revenue, Philhp Kellam, requested DEFERRAL of thts ttem as four stmtlar ttems relating to utthty, meal, lodgtng and admtsstons taxes are scheduled for the Ctty Counctl Sesston of September 24, 2002 Commtsstoner Kellam wtshes to brief City Counctl re all these Ordtnances at the same ttme The City Manager recommended against further DEFERRAL Funds are betng lost tn collecttons ITEM # 50088 H2 Ordtnance to AUTHORIZE the Ctty Manager to AMEND and further EXTEND an optton to acqutre property located at Rudee Loop. Council Lady McClanan wtll ABSTAIN. ITEM # 50089 H6 Or&nance to TRANSFER $300, O00 from vartous Storm Water Capttal ProJects to Capttal ProJect #7-012, to extend the ptped drainage system tn Fair Meadows (DISTRICT 2 - KEMPSVILLE) Councd Lady McClanan expressed concern In Windsor Woods/Windsor Oaks, there are road projects encompasstng approxtmatelyfourpages whtch are "on hold" Pubhc Works cannotperform the resurfactng of streets unttl Pubhc Utthttes performs the scheduled projects The streets resemble a "fourth world country" E Dean Block Dtrector of Pubhc Works, advtsed these funds are stormwaterfunds and can only be uttltzed for storm water projects These funds could not be used for road tmprovements Sandbrtdge Dratnage tmprovements are complete The change tn project scope wtll achieve multiple outcomes by enhanctng the drainage, safety, character, vttahty, health and aesthettcs of the Fair Meadows netghborhood as the dratnage system wtll be more effictent to matntatn by the resMents and Ctty ahke ITEM # 50090 H7 Resolutton APPROVING tssuance of Multtfamdy Housing Bonds tn behalf of CP Atlantic, L.P. for a project located at 999 Atlantts Drtve (Atlantis Apartments) (DISTRICT 6- BEA CH) Councd Lady Wtlson tnquired relattve the $12-MILLION Sharon Prescott, Housing Programs Admtntstratton- Houstng and Netghborhood Preservation, and Asststant Ctty Attorney Gary Fentress advtsed the funds wtll asstst tn financtng of the company's acqutsttton, renovatton and equipping of a 208 untt multt-famtly houstng project September 3, 2002 -13- AGENDA RE VIE W SESSION ITEM # 50091 BY CONSENSUS, the following shall compose the CONSENT AGENDA: ORDINANCES/RES OL UTION H 10r&nances re the City Code AMEND ~ 35-253, 35-254, 35-258, 35-259, 35-260, 35- 263 and ADD 3~ 35-258 1 of the Ctty Code re admtntstratton and collectton of local telecommunication service taxes b. AMEND ~ 21-207 re liquidated damages for violation of permitted weight limits AMEND and REORDAIN 3~12-25(a) re destgnattng the Chtef of Ftre Protectton or hts destgnee as the Fire Marshal H2 Ordinance to A UTHORIZE the Ct ty Manager to AMEND and further EXTEND an option to acqutre property located at Rudee Loop H 3 Or&nances re temporary encroachments tntoporttons of the Ctty's rights-of-way Ctty matntenance easement by OLYMPIA BENDIX, LL C, re a storage butldtng at 295 Ben&x Road (DISTRICT 5- L YNNHA VEN) Lake Wesley by WILLI FENSKE re boat hft, extsttng floattngpter and replacing four extsttng moortng pdes at 500 Southstde Road (DISTRICT 6- BEACH) H4. Ordinance to AUTHORIZE the Ctty Manager to execute an Amendment to the LEASE of ctty-owned property at Ocean Lakes Commumty Park to allow tnstallation of#3 ballfield hghttng, to Virginia Beach Little League, Inc and thetr operatton of youth baseball, contatntng 13 06 acres (DISTRICT 7 - PRINCESS ANNE) H5 Ordtnance to AUTHORIZE the Ctty Manager to EXECUTE a Deed of Boundary Settlement wtth the Umted States of Amertca re Red Wing Lake Golf Course ora 5-acre boundary overlap (DISTRICT 6 - BEACH) H6 Ordtnance to TRANSFER $300, O00 from vartous Storm Water Capttal ProJects to Capital ProJect #7-012, to extend the piped drainage system tn Fair Meadows (DISTRICT 2 - KEMPSVILLE) H7 Resolutton APPROVING tssuance ofMulttfamdy Houstng Bonds tn behalf of CP Atlantic, L.P. for a project located at 999 Atlantts Drtve (Atlantis Apartments) (DISTRICT 6- BEACH) Councd Lady McClanan wtll ABSTAIN on Item H 2. (Rudee Loop) September 3, 2002 - 14- CITY COUNCIL LI/IISON REPORTS 4:35 P.M. ITEM # 50092 Counctl Lady Eure dtstrtbuted a report from the Pavilion Feasibility Design Subcommittee Counctl Lady Eure advtsed the aquartum could be developed at a cost of $6 to $7-MILLION Two weeks ago, Mtnutes of the Open Space Subcommittee were dtstrtbuted Council Lady Eure urged each member of Ctty Counctl read the report she had copted and dtstrtbuted September 3, 2002 -15- CITY COUNCIL COMMENTS 4:38 P.M. ITEM # 50093 Mayor Oberndorf advtsed the ctttzens of Vtrgtnta Beach are served by the greatest Ctty employees Mayor Oberndorf dtsplayed the 2002 Mayor's Cup recetved by the City of Virginia Beach Thts presttgtous honor was the result of I,'trgtnta Beach havtng the largest percentage of Ctty Employees tn the regton donattng blood to the Amertcan Red Cross .loyce Lang Human Resourcdes, co-or&nates the Blood Drtve for the City Employees Her enthustasm and unselfish dechcatton resulted tn 8.11% of the Ctty employees donattng blood Portsmouth had 2.89% of city employees donating and Norfolk had 7.24% ITEM # 50094 Counctlman Vtllanueva commended the Ctty and the enttre staff for the American Music Fesitival and the Rock N Roll ~ Marathon/labor Day Weekend He ts proud to be a ctttzen of the Ctty Mayor Oberndorf recogmzed the tncre&ble eltte racers, whose feet do not look hke they touched the ground. Mayor Oberndorf expressed apprectatton to the City Manager and hts Executtve Staff September 3, 2002 -16- ITEM # 50095 Mayor Meyera E Oberndorf , called to order the INFORMAL SESSION of the VIRGINIA BEACH CITY COUNCIL tn the Ctty Counctl Conference Room, Ctty Hall Butldtng, on Tuesday, September 3, 2002, at 440 PM. Councd Members Present. Margaret L Eure, Louts R Jones, Reba S McClanan, Rtchard A Maddox, Vice Mayor Robert C Mandtgo, Jr, Mayor Meyera E Oberndorf, Jtm Reeve, Peter W SchmMt, Ron A Vtllanueva, Rosemary Wtlson and James L Wood Councd Members Absent None September 3, 2002 -17- ITEM # 50096 Mayor Meyera E Oberndorf entertatned a motton to permit Ctty Councd to conduct tts CLOSED SESSION, pursuant to Section 2 1-344(A), Code of Vtrgtnta, as amended, for the followtng purpose PERSONNEL MATTERS Discusston, constderaaon or tntervtews of prospecttve candtdates for employment, assignment, appotntment, promotton, performance, demotton, salartes, chsctphntng, or restgnatton of spectfic pubhc officers, appotntees, or employees pursuant to Sectton 2 1-344 (A) (1) To Wtt Appointments Boards and Commtsstons' Board of Zomng Appeals Francts Land House Board of Governors Human Rights Commtsston Parks and Recreation Commtsston Pubhc Ltbrary Board Revtew and Allocatton Commtttee (COG) Towing Advtsory Board Transttton Area Techmcal Advtsory Commtttee Vtrgtnta Beach/Jamestown 200 7 Steering Commtttee PUBLICLY-HELD PROPERTY Dtscusston or constderatton of the acqutsttton of real property for a pubhc purpose, or of the Chsposttton of pubhcly-held real property, where dtscusston tn an open meettng would adversely affect the bargatntngposttton or negottattng strategy of the pubhc body pursuant to Secaon 2 1-344(A)(3) Acqutsttton Agricultural Reserve Program -Prtncess Anne Dtstrtct Oceanfront and Bayfront Beaches LEGAL MATTERS Consultaaon wtth legal counsel or brtefings by staff members, consultants, or attorneys pertatntng to actual or probable httgatton, or other spectfic legal matters requtrtng the provtston of legal advtce by counsel pursuant to Sectton 2 2-3771(A)(7) Frtends of Ferrell Parkway L L C and Andrea Kdmer v the Ctty of Vtrgtnta Beach, et al Upon motton by Vtce Mayor Man&go, seconded by Councd Lady }Ydson, Ctty Council voted to proceed tnto CLOSED SESSION. Voting 11-0 Councd Members Vottng Aye Margaret L Eure, Louts R Jones, Reba S McClanan, Richard A Maddox, Vtce Mayor Robert C Man&go, Jr, Mayor Meyera E Oberndorf Jtm Reeve, Peter W Schmtdt, Ron A Vtllanueva, Rosemary Wdson and James L Wood Councd Members Vottng Nay None Council Members Absent. None (4:43 P.M. - 6:16 P.M.) Councdman Reeve was absent from the dtscusston (left at 5'00 P M/returned at 5.20 P M) re Frtends of Ferrell Parkway L L C and Andrea Ktlmer v the Ctty of Vtrgtnta Beach, et al Councdman Reeve DISCLOSED he ss member of Frtends of Ferrell Parkway and thus ss not taktng part tn the CLOSED SESSION chscusstons wtth the Ctty September 3, 2002 -18- FORMAL SESSION VIRGINIA BEA CH CITY CO UNCIL September 3, 2002 6:16 P.M. Mayor Meyera E Oberndorf, called to order the FORMAL SESSION of the VIRGINIA BEACH CITY COUNCIL tn the Counctl Chamber, Ctty Hall Butldmg, on Tuesday, September September 3, 2002, at 616 PM Counctl Members Present Margaret L Eure, Louts R Jones, Reba S McClanan, Rtchard A. Maddox, Vtce Mayor Robert C Man&go, Jr, Mayor Meyera E Oberndorf Jtm Reeve, Peter W Schmtdt, Ron A. Vtllanueva, Rosemary Wtlson and James L Wood Counctl Members Absent None INVOCATION Reverend G Ketth Almond, Pastor Commumty Umted Methodtst Church PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA Reverend Almond advtsed this week, the Church ts celebrattng tts Fifiteth Year Thts week marks the Anntversary of thetr ttme of Charter September 3, 2002 Item VI-E. - 19- CER TIFICA TION OF CLOSED SESSION ITEM # 50097 Upon motton by Councdman Jones, seconded by Councd Lady Eure, City Councd CERTIFIED THE CLOSED SESSION TO BE IN ACCORDANCE WITH THE MOTION TO RECESS. Only pubhc business matters lawfully exempted from Open Meeting requirements by Vtrgtnta law were dtscussed tn Closed Sesston to whtch thts certtficatton resolution apphes, AND, Only such pubhc bustness matters as were tdenttfied tn the motton convemng the Closed Sesston were heard, &scussed or constdered by Vtrgtnta Beach Ctty Counctl Vottng 11-0 Counctl Members Vottng Aye Margaret L Eure, Louts R Jones, Reba S McClanan, Rtchard A Maddox, Vtce Mayor Robert C Man&go, Jr, Mayor Meyera E Oberndorf Jtm Reeve, Peter W Schmtdt, Ron A Villanueva, Rosemary Wdson and James L Wood Counctl Members Vottng Nay None Counctl Members Absent None September 3, 2002 RESOLUTION CERTIFICATION OF CLOSED SESSION VIRGINIA BEACH CITY COUNCIL WHEREAS: The Vlrgima Beach City Council convened into CLOSED SESSION, pursuant to the affirmative vote recorded in ITEM # 50096, page 17, and in accordance with the provisions o£The Virginia Freedom of Information Act; and, WHEREAS: Section 2 2-3711(,,1) of the Code of Virginia requires a certification by the governing body that such Closed Session was conducted in conformity with Virginia law. NOW, THEREFORE, BE IT RESOLVED: That the Virginia Beach City Cotmcd hereby certifies that, to the best of each member's knowledge, (a) only public business matters lawfully exempted from Open Meeting reqmrements by Virginia law were discussed in Closed Session to which th~s certlficat~on resolution apphes; and, (b) only such public business matters as were identified m the motion convemng this Closed Session were heard, discussed or considered by Virginia Beach City Council. ~th Hbdges Samith, MMC City Clerk September 3, 2002 Item VI-F. 1. - 20 - MINUTES ITEM # 50098 Upon motton by Councilman Jones, seconded by Councdman Schmtdt, Ctty Council APPROVED the Mtnutes of the INFORMAL AND FORMAL SESSIONS of August 27, 2002 Vottng 11-0 Counctl Members Vottng Aye Margaret L Eure, Louts R Jones, Reba S McClanan, Rtchard A Maddox, Vtce Mayor Robert C Man&go, Jr, Mayor Meyera E Oberndorf Jtm Reeve, Peter W Schmtdt, Ron A Vtllanueva, Rosemary Wilson and James L Wood Counctl Members Vottng Nay None Counctl Members Absent None September 3, 2002 Item VI-G.I. - 21 - ADOPT A GENDA FOR FORMAL SESSION ITEM # $0099 BY CONSENSUS, Ctty Councd ADOPTED: AGENDA FOR THE FORMAL SESSION ADD-ON Resolutton re mtentlon not to prosecute an appeal of Ctrcutt Court's dectston tn case re prospective lease of Nimmo Parkway (Ferrell Parkway) but to defend Ctty's tnterest re legal fees September 3, 2002 Item VI-G.2 - 22 - ADOPT AGENDA FOR FORMAL SESSION ITEM # 50100 Upon motton by Counctlman Jones, seconded by Councdman Schmtdt, City Councd ADDED to the Agenda. Resolution re tntentton not to prosecute an appeal of Ctrcutt Court's dectston tn case re prospecttve lease of Ntmmo Parkway (Ferrell Parkway) but to defend City's interest re legal fees Vottng 11-0 Counctl Members Voting Aye. Margaret L Eure, Louts R. Jones, Reba S McClanan, Rtchard A Maddox, Vtce Mayor Robert C Man&go, Jr, Mayor Meyera E Oberndorf Jtm Reeve, Peter W Schmtdt, Ron A Vtllanueva, Rosemary Wtlson and James L Wood Counctl Members Vottng Nay None Counctl Members Absent: None September 3, 2002 - 23 - Item VI-H. ORDINANCES/RES OL UTION ITEM # 50101 Upon motion by Vtce Mayor Man&go, seconded by CouncdmanJones, City Councd APPROVED IN ONE MOTION, Ordtnances la/b/c, 2, 3, 4, 6, and Resoluaons 7, and 8 (ADD-ON) of the CONSENTAGENDA. Vottng 11-0 (By ConsenO Councd Members Voang Aye Margaret L Eure, Louts R Jones, Reba S McClanan, Rtchard A Maddox, V~ce Mayor Robert C Man&go, Jr, Mayor Meyera E Oberndorf Jtm Reeve, Peter W Schmtdt, Ron A. Vdlanueva, Rosemary Wdson and James L. Wood Councd Members Vottng Nay None Counctl Members Absent None Councd Lady McClanan DISCLOSED and ABSTAINED re Item 2 (Rudee Loop), pursuant to the Con. fltct of Interest Act ~2 2-3115 E Code of Vtrgmta She and her husband own a umt tn the Dolphin Run Condommtums, the value of which exceeds $10,000, and they are both members of the Dolphin Run Condommtum Assoctatton, Inc The Assoctatton ts currently tn httgatton wtth the Ctty concerning deed restrtcttons on property owned by the Assoctatton and tt ts reasonably foreseeable that the Assoctatton may reahze a &rect or redirect benefit or detrtment as a result of Ctty Counctl's constderatton of the Ordinance Counctl Lady McClanan 's letter of September 3, 2002, ts hereby made a part of the record Counctlman Reeve DISCLOSED and ABSTAINED re Item 8 (ADD-ON) Nimmmo Parkway, as he ts a member of Frtends of Ferrell Parkway and has not taken part tn the Closed Sesston dtscusstons regardtng Frtends of Ferrell Parkway L L C and Andrea Kdmer v the Ctty of Vtrgtnta Beach, et al Councdman Jones DISCLOSED re Item 8 (ADD-ON) Nimmo Parkway He has an ownershtp tnterest tn Resource Bank whtch exceeds 3% of the asset value of the bank Resource Bank holds a note on the Lotus Creek property The Lotus Creek property has now been ehmtnated from thts issue and the Ctty Attorney advtses Counctlman Jones has the rtght to vote on thcs tssue September 3, 2002 Item VI-H. l afo/c. - 24 - ORDINANCES/RES OL UTIONS ITEM # 50102 Upon motion by Vtce Mayor Man&go, seconded by Councd Lady Eure, Ctty Councd ADOPTED Ordtnances re the Ctty Code AMEND 6~,~ 35-253, 35-254, 35-258, 35-259, 35-260, 35- 263 and ADD 3~ 35-2581 of the City Code re admintstratton and collection of local telecommunication service taxes b. AMEND 6~ 21-207 re liquidated damages for violation of permitted weight limits AMEND and REORDAIN ~12-25(a) re designating the Chief of Fire Protectton or his destgnee as the Fire Marshal Vottng 11-0 (By ConsenO Counctl Members Voting Aye Margaret L Eure, Louts R. Jones, Reba S McClanan, Richard A Maddox, Vtce Mayor Robert C Man&go, Jr, Mayor Meyera E Oberndorf Jtm Reeve, Peter W Schmidt, Ron A Vtllanueva, Rosemary Wilson and James L Wood Counctl Members Voting Nay None Counctl Members Absent None September 3, 2002 AN ORDINANCE TO AMEND THE CITY CODE PERTAINING TO THE ADMINISTRATION AND COLLECTION OF LOCAL TELECOMMUNICATION SERVICE TAXES SECTIONS AMENDED' 35-253, 35-254, 35-258, 35-259, 35-260 and 35-263 SECTION ADDED' 35-258.1 10 11 12 13 14 15 16 17 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA' That Sections 35-253, 35-254, 35-258, 35-259, 35-260, and 35- 263 of the Code of the City of Virginia Beach, Virginia are hereby amended and reordained, and a new Section 35-258.1 is hereby added, to read as follows' Sec. 35-253. Definitions. Except where the context clearly indicates a different meaning, the following in this article definitions of words and phrases related to telecommunication or enhanced 911 service shall 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 be provided by the provisions of Sections 58.1-3812(J) and 58.1- 3813.1(A) of the Code of Virqinia., when used in this article, shall, for purposes of this articl=, have =~= ~LL=~~o ~o~=u =~ them in this sections- Affiliated ~=u~p o~ have the same meaning ~scr~w=u to it in o=~tion 50.I-3703.~.I0 of the Code of Vir~nia, ~o ~,L~=,~u=u, provided, however, that, for pumpuo=o ~z u~mo artmcle, =~= ~u~= "entity" =-~ s~= be substituted for the word "corporation" whenever it io used in o=~u~ 50 1-37n~ B ~n Dad -'-~=o related to ~ o~I= of ~=~ means any portion of a ~=~ local teleco~,unicatlon services, the gross charges for whic~h are --= ' ........ ~ .......... '- that has become worthless ~u~ otherwise u=uu~~= or exc~uu=~=, or uncollect:='e, ~u~ as determined under applicable federal income tax standards ~= the portia.. ~= -- of the~=~ ...... deemed to be ..... =- _._1_ ___' ,__ , _~_~ o~sequently paid, the servio= provider o~=~ report and pay the tax on that portion during the reporting period in which the payment is made. 35 3G 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 S8 59 60 61 62 63 64 65 ' - -" --: ..... '-- gh - Consumer means a person who, ~:~v~u~z or throu agento, employees, officers, representatives, or permittees, makes a taxable purchase of~u~'---' teleco~,unication ~=~ ~- that emplo~ ~hanced ...... ~ ........ ' ............. processing applications to act on the format, code, or protocol . , ...... ~ _ , . . _ __ , s~m~lar =op=~=o of the ~nformat~on transmitted, provide -~-'~=~onal u~=====~=, or restructured znformat~on, or znvolve znteractzon wzth ~tored information. ~-~ o]otem meano a t=le one s=rvi~= w~m~ utili==o somputerized system to automatically route emergency telephone _ 1_ __ _1 I _ 1 ~ _ __ ' : !! ~ ~ !! __._ 1_ 1 l callo placed ~ ~a~ the dzgzts 9~z to the proper ' -- ' ' -- ' ' .... 1- 2 safety answering point oerv~ng the j urzodzct~on fr~m ~,~ch the emergency t=lephone ~ wao placed. An ~-911 oys==~u ~ncludes ~=~=~= =u~=~,~ of t=l-- one calls, =p~ automatic t=le one number identification, and automatic location identification performed by computers and other ancilla~-y control center cos~,unicat ions equipment. Gross -=- g bj ......... ~ ..... ~ ~i- es means, su eot to =~=~ =~uo~u~o o=~ herezn, the amount charged or pazd for th= c=~ow~= pu=~.oo= local telecor~:unioation oervi~=o. ]]owever, "~uoo ~::a~=o not Lnclude th= = ~`- I. Charges or ~,,u~=o p~= that vary based on the a~u~ elapsed transmiosion time of ........... =,:= ~:,=,,m:~o=~ that ~= oeparately stated on the consume= o ~ 2. Charges or amounts paid for customer equipment, including such equipment that is leased or rented by the custome~ if ............ = ...... ==~m any source, ~uch chargeo or ~m~=o p=~ -eparately = ...... ==~ ........... other ......... ~ ..... paid for the p r ovi-s i on of local ~ =- ~' = ........ ~ ~,,~,m, i cat ion services on the service providez's books and records; 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 3. ~..=~=o~= .............. or =~LLuU..=O paid for administrative services, including, without limitation, service connection and ........... and roamer u=~l ~urchazges, ,. ~..o~:~ or amo~nt~ paid for special f=otures that su =~t to t=~==~u., under ~e~=zon 4251 o~ the Internal Revenue Code of 1986, as amended; 5. Charges or amounts paid that are {i} the tax imposed by section 4251 of the Internal R:~:..~: ~: of I~6 amended or ~ any other tax ~ surcharge imposed statute, ~nance or regulatory authority, or . ~od debt ~. .... ~ ~-~ ........ ~--~ ........ ~ ...... j -~ to the --- lus' -- = .... ~ ..... ~- ~--' ...... ' ' ' ' the two-way loc~l ~u~ ~ ~=~=~, ~uu=o, without limitation, ===~,o,,~o~zu~ of messages through use of switched local telephone services; telegraph services; teletypewriter; local cellular mobile radio teleco~,unlcation services; specialized~,,uw--~=~' =- radio; o=o=~=ry two-way radio; or any other form of two-way ,,,uwzl= and portable cos~,unicat ions. Local telephone service, subject to the exclusions set forth ' ' ' b~ herein, zncl--~--uu=o any service su =~ to federal to~==~-=~u.. ~o telephone service as that term is defined in section 4252 of the Internal Revenue ~-~- of 1986, ~uu= as ar~ended, or any successor ~.~=le local telecommunmcat~ ~== ~= means any two-way mobile or ~~e ~~ t=leco~un~cat~on oerv~=, cellular mobile ==u=u telecos~,unzcatzon oervz~= ~nd mobile radio. "-=- ~- ' ............. ~-- - ph ~u~=~= sei-vi~= consuaier means a p=~ou~ ~~ ~ tele one taxable purchao= of ouch serv~= or on whose behalf another person hao made ~ taxable purchao= of such 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 - ' ....... : - the ,~_~: 7 ...... :- provider means every person =~,~a~=d 1--.__-' ..... ~ __~ 1 -' .... %_-' 1 _ 1 ___7 _ ' ' -- consumers. .... ~: ................... ' ' '-' - ---=lie r,~~ a~~ a~~ means a ~u~tzonal dzvzozon of ~ ...... : ............. ~ ..... ~ ~ -~ provide- emergency o=~v~a, or a Friv~ ~~y w~ ~ ~ervices on a voluntary bas~- operated on ~ twenty-fou~-hour basz~ .~ first ~=~=.~=~ E-911 ~alls ...... ' ~ ' ..... ' - - - ~.~ person~ zn an ~-911 service ~=~ and whz ~ may, appropriate, directly dispatch public safety services or extend, transfer, or ~=lay ~-~ ~=~ ~o appropriate publ~c , agenoieo . R=~dential consumer o,,=~I not ~nc~=~= any consumer of mobile local teleco~,unication service. Service address means the location of the teleco~,unication ' ...... L 2 --1-- ' ' ' ' ' equipment f~o., ,~ the teleco~unzcatzon zs originated or at ._~= _u - ~y a consumer ' ,~,~ the teleco~unication i~ received .... . llowever, -- ' -- ' -- -- ' ' -- ' ~1 the oervzce addres~ zo not = defined location, ao zn ~= ~=~= of mobile telephones, maritime systems, air-to-ground systems and the like, o=rvz~= =~eoo shall mean the location of the o=~scz~b=r ' ............. ' ' _-- ' '' ' _ _ _1 primary ~o= of the t=l=c~.~=~zcatzo~, equzpment within the ' ..... ( ' ' ...... 2 -1 ........ 1_~ _ 2 -- -- ' service ~=~. A mobile service ~v~=~ ~=y ~~ ~ signe-' ......... = ..... ' - -'~ ' ity ...... ~=,,,=,~ ~,,, ~ consumer z,,~cating which county, c o~ w~thzn the licensed oervzc= area zo ~= lo~at~o~ of the ~onsume~ primary use of the tele~o~uni~ation equipment ~ --~=~- - provider o~=~ ~= entitled to ~= =~ao~=e13 on = consumer' si~ned statement and s~hall remit the taxes collected to the county, city or town identified by the consumer. In the absence of a signed .......... by o=~==,,,=,,= ~ consumer, a mobile service provider shall '.... the county, ~3 or town of the consumer'o primary uoe and 1_ ~ ..... remit the tax to o=~ county, city or ~o,~ based on any othe~ 4 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 ~~,,~ addreso, o~v~ ~-~oo, v~ tele one number w-ithin thc Service provider means every person engaged in the business of ~ing local telecor~unmcat~on servzces to consumez~. , , Taxable purchase means the ~Hu~=~ ~ o=zviceo for .......... =-- or use, ~owever, ...... ~u**~u,~p~u** taxabl= purchaoe does znc~uu= ~=~ the prov~szon of t=lec~.~u~catzu~o ~u~,~ members of an affiliated group of entities by a member of the group for their own exclusive use and consumption and (il) the purchase of ===~=~,,~,,~**~-~ ........ ~--=~=~,,o--- for resale in the subo=~u=**= ........ provision of & -- I __ __ .......J ----~ J ---- -- ' 1._DJ .... J ~k--.-~ I J--J &--~J ---- ' ........ right of access charges, and charges for use of inter- ' ' _ _ ' ' ' -- ' __~ 2 company fac~Izt=~=-o, however, the acquzs~tzon of uy ~ p=u~u== of enhanced services ~s ~u~ =,~= purchase of tel=cozen, un,cat ~ons for ~=oal=, =~=** ~,,=** the cost of the ........... ~--~--- ~- - 1 d =- ~ ............... f the =~,,,anceu o==~,~=s, ~o long as the primary o =~ of the purchase of =~e t=leco~un~cat~on5 by the provider ~o for the p~u~o~ enhanced 5ervzceo o~u ~u= telecos~un~catzono. A person mol tax-free purchases of telecor~unications for resale if the person provides to the service provider a sworn affidavit indicating ~-~ the person's purchases are nontaxable sales for resale. Sec. 35-254. Imposed. (b) Pursuant to section 58.1-3812 of the Code of Virginia, as amended, there is hereby imposed and levied on every taxable purchase by a consumer of mobile local telecommunication service, when such consumer's service address is located in the city, a tax at a rate equal to ten (10) percent of the monthly gross charge to the consumer of such service; provided, however, that this tax shall not be applicable to any amount so charged in excess of 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 thirty dollars ($30.00) per month for each mobile service t~s-t~meT consumer. Pursuant to sectionuu.~-Ju~=.~ ~ ~ B. of the Code of Virginia, as amended, the tax imposed and levied by t~his subsection (b} shall be e~=~ive~= .... oix ~'uu~ ~ subs=quent to written not~ce ~ certified mail to the registered agent of the service provider that is required to collect the tax. (d) Pursuant to section 58.1-3813.1 of the Code of Virqinia, as amended, ~in addition to the taxes imposed by subsections (a), (b) and (c) of this section, there is hereby imposed and levied on every consumer of ~ telephone service or services provided by any corporation subject to the provisions of Title 58.1, Chapter 26 (section 58.1-2600 et seq.) of the Code of Virqinia), pursuant to ~=~tion 58 ~ ~ of the ~--~- of Virginia, --- .~-~u~ ~u= ' ' as amended, a tax in the amount of one dollar and ninety-five cents ($1.95) per month. The tax imposed by this subsection (d) shall not apply to any local telephone service where a periodic bill is not rendered. Sec. 35-258. Duty of service provider to collect, report and remit; penalty and interest. (a) Before enqaginq in business in the city, every service provider shall register with the commissioner of the revenue and provide, on a form prescribed by the commissioner of the revenue, sufficient information about the service provider and its manner of doinq business to ensure that the taxes imposed and levied by this article will be properly assessed. (~h) It shall be the duty of every service provider, in acting as the tax collection medium or agency for the city, to collect from each consumer, for the use of the city, the taxes imposed and levied by this article at the time of collecting the purchase price charged for the service. The taxes so collected during each calendar month shall be reported and remitted by each service provider to the -~ ~=~o~=~ ~ commissioner of the revenue on or before the fifteenth day of the second calendar month thereafter. 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 Ail remittances of taxes received by the commissioner of the revenue shall be delivered to the treasurer by the end of the next business day following; provided, however, that all cash payments must be made to the city treasurer. The required report shall be in such form as may be prescribed by the city treasurer commissioner of the revenue. (~_c) Failure to report or remit the taxes so collected to the city treasurer commissioner of the revenue on or before the due date set forth in subsection ~ (b) of this section shall result in a penalty of ten (10) percent of the amount due or ten dollars ($10.00), whichever is ~ qreater, which shall be added to the amount due; provided, however, that the penalty shall not exceed the amount due. In addition, interest at the rate of ten (10) percent annually from the first day following the last day the taxes are due to be remitted may be added to the overdue principal and penalty, and collected from the delinquent service provider. 210 211 212 213 214 215 216 217 218 219 220 221 222 Sec. 35-258.1. Procedure upon failure to collect, report, etc. (a) It shall be the duty of the commissioner of the revenue to ascertain the name of every service provider liable for the collection of the tax imposed and levied by this article, as well as the name of every service provider that fails, refuses or neqlects to collect such tax or to make, within the time provided by this article, the reports and remittances required by this article. (b) If any service provider, whose duty it is so to do, shall fail, refuse or neqlect to collect the tax imposed and levied under this article or to make, within the time provided in this article, the reports and remittances required by this article, the commissioner of the revenue shall obtain the facts and information 223 necessary to make an estimate of the tax due. As soon as the 224 225 commissioner of the revenue has procured such facts and information, he shall proceed to determine and assess the tax 7 226 227 228 229 230 imposed and levied by this article and shall notify such service provider, by certified mail, sent to its last known place of business, of the total amount of such tax, penalties and interest; at the same time, a copy of this notice shall be provided to the city treasurer. The total amount of this assessment shall be 231 payable within ten (10) days from the date of such notice. 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 Sec. 35-259. Service provider's records. Each service provider shall keep complete records showing all purchases of local telecommunication service in the city, which records shall show the date of each bill, the price each consumer is charged with respect to each purchase, and the amount of taxes imposed by this article. Such records shall be made maintained for a period of three {3) five (5) years and shall be made available for inspection by the commissioner of the revenue or his duly authorized agents ~f the city at reasonable times during normal business hours. The commissioner of the revenue or his duly authorized agents of t,he city shall have the authority to make such transcripts thereof during such times as they may deem necessary and appropriate. Sec. 35-260. Duties of commissioner of the revenue and city treasurer. (a) The commissioner of the revenue or his duly authorized agents shall be charged with auditing the reports required by this article, ensuring that service providers are registered to collect the tax imposed and levied by this article, receiving from service providers the taxes described in this article and promptly 252 253 254 255 256 transmitting them to the city treasurer, and responding to all inquiries that may be made by taxpayers or service providers. .(b) The city treasurer shall be charged with the collection of the taxes imposed and levied by this article, after receiving notice from the commissioner of the revenue as provided in section 257 258 259 260 261 262 263 264 265 266 267 268 269 270 35-258.1 (b)that such taxes are delinquent, and shall cause the same to be paid into the general treasury of the city. · · Sec. 35-263. Compensation for collection of E-911 tax. Pursuant to section 58.1-3813.1_~ of the Code of Virginia, as amended, whenever the tax imposed by section 35-254(d) of this article is collected by the service provider acting as the tax collection medium or agency for the city, such service provider shall be allowed as compensation for the collection and remittance of the tax three (3) percent of the amount of tax due and accounted for. The service provider shall deduct this compensation from the payments nva~ge reported and remitted to the city tzeasure~ commissioner of the revenue in accordance with section 35- 258~ca-~ (b) . 271 272 Adopted by the City Council of the City of Virginia Beach, Virginia, on this 3rd day of September, 2002. 273 274 275 276 277 CA-7530 ODIN/PROPOSED/35-258etalord.wpd R-21 July 3, 2002 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 36 37 38 39 40 AN ORDINANCE TO AMEND THE CITY CODE PERTAINING TO LIQUIDATED DAMAGES FOR VIOLATION OF PERMITTED WEIGHT LIMITS SECTION AMENDED' ~ 21-207 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA' That Section 21-207 of the City Code is hereby amended and reordained to read as follows- Sec. 21-207. Liquidated damages for v~olation of weight limits; storage, disposition, etc., of vehicle and cargo involved an weight violation. (a) Any person violating any weight limit as provided by this chapter or in any permit issued either by the Virginia Department of Transportation or by the city manager pursuant to this Code shall be assessed liquidated damages. The amount of those damages shall be' Excess weight over the prescribed or permitted axle weight lzmits 4,000 pounds or less 4,001 to 8,000 pounds 8,001 to 12,000 pounds 12,001 pounds or more Assessed Excess wezght over amount per the prescribed gross pound weight limit Assessed amount per pound $0.01 4,000 pounds or less $0.01 $0.10 4,001 to 8,000 pounds $0.05 $0.20 8,001 to 12,000 pounds $0.10 $0.30 12,001 pounds or more $0.15 Ail gross permit violations shall be assessed twenty cents ($0.20) per pound over the permitted weight limit. If a person has no prior violations under the motor vehicle weight laws, and the excess weight does not exceed two thousand five hundred (2,500) pounds, the general district court may waive the liquidated damages against such person. Such assessment shall be entered by the court or by the department as a judgment for the city, the entry of which shall constitute a lien upon the overweight vehicle. Such sums shall be paid to the court or collected by the city attorney and forwarded to the city treasurer and allocated to the fund appropriated for the construction and maintenance of city highways. (b) If the gross weight of the vehicle exceeds lawful limits by at least twenty-five (25) percent but not more than fifty (50) 41 42 43 44 45 46 47 48 49 5O 51 percent, the amount of the liquidated damages shall be two (2) times the amount provided for in subsection (a) above; if the gross weight of the vehicle exceeds lawful limits by more than fifty (50) percent, the amount of the liquidated damages shall be three (3) times the amount provided for in subsection (a) above. The provisions of subsection (b) shall not apply to pickup or panel trucks. (c) The charge hereinabove specified shall be in addition to any other liability which may be legally fixed against such owner or operator of the vehicle in question for damage to a highway or bridge attributable to such weight violation. 52 53 54 55 56 57 58 Adopted by the City Council of the City of Virginia Beach, Virginia, on this 3rd day of September, 2002. CA-8578 DATA/ORDIN/PROPOSED/21-207ord.wpd R2 August 5, 2002 AN ORDINANCE TO AMEND AND REORDAIN THE VIRGINIA BEACH CITY CODE PERTAINING TO FIRE MARSHAL, DEPUTIES AND ASSISTANTS SECTION AMENDED: ~ 12-25(a) BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 7 BEACH, VIRGINIA: That Section 12-25(a) of the City Code is hereby amended and reordained to read as follows: 10 Sec. 12-25. Fire marshal, deputies and assistants. 11 12 (a) The chief of fire protection or his designee shall be the fire marshal. 13 14 Adopted by the Council of the City of Virginia Beach, Virginia, on the 3rd day of September, 2002. 15 16 17 18 19 CA-8585 ORDINkNONCODE\sec. 12-25(a).ord August 2, 2002 Ri Item VI-H.2. - 25 - ORDINANCES/RES OL UTIONS ITEM ii 50103 Upon motton by Vtce Mayor Man&go, seconded by Councd Lady Eure, City Councd ADOPTED Or&nance to AUTHORIZE the Ctty Manager to AMEND and further EXTEND an optton to acqutre property located at Rudee Loop Vottng 10-0 (By ConsenO Counctl Members Vottng Aye Margaret L. Eure, Louts R Jones, Rtchard A Maddox, Vtce Mayor Robert C Man&go, Jr, Mayor Meyera E Oberndorf, Jtm Reeve, Peter W Schmtdt, Ron A Villanueva, Rosemary Wtlson and James L Wood Council Members Voting Nay None Council Members Abstatntng Reba S McClanan Councd Members Absent None Counctl Lady McClanan DISCLOSED andABSTAINED pursuant to the Conflict oflnterest Act ~2 2-3115 E Code of Vtrgtnta She and her husband own a umt tn the Dolphin Run Condomtmums, the value ofwhtch exceeds $10,000 and they are both members of the Dolphtn Run Condomtmum Assoctatton, Inc. The Assoctatton ts currently tn httgatton wtth the Ctty concerning deed restrtcttons on property owned by the Assoctatton and tt ts reasonably foreseeable that the Assoctatton may reahze a &rect or tn&rect benefit or detrtment as a result of Ctty Counctl's constderatton of the Or&nance. Councd Lady McClanan's letter of September 3, 2002, ts hereby made a part of the record September 3, 2002 REBA S McCLANAN COUNCIL LADY - DISTRICT 3 - ROSE HALL City of Virginia PHONE (757) 340-8835 FAX (757) 426-5669 September 3, 2002 Mrs. Ruth Hodges Sm]th, MMC City Clerk Mummpal Center V]rg~ma Beach, V~rg~ma 23456 Dear Mrs. Smith' Re: Abstention Pursuant to Sect]on 2 2-3115(E), Code of V]rg~ma Pursuant to the V]rg]ma Conflict of Interests Act, Section 2.2-3115(E), Code of V~rg~ma, I make the following declaration: , I am executing th~s written d~sclosure regarding City Council's d~scuss~on and vote on the ordinance authorizing a further extension of the opt]on to buy the Herman property, which Is located at Rudee Loop. The nature of my personal interest is that my husband and I own a umt ~n Dolphin Run Condom]mums, the value of which exceeds $10,000, and we are both members of the Dolphin Run Condomimum Assomat]on, Inc. The Assomat~on Is currently ~n htlgat]on w~th the City concerning deed restrictions on property owned by the Association, and it is reasonably foreseeable that the Association may reahze a d~rect or ~nd~rect benefit or detriment as a result of Council's consideration of the or&nance. I wish to disclose this interest and abstmn from pamclpatlng in consideration of the ordinance authorizing a further extension of the opnon to buy the Herman property 3224 BURNT MILL ROAD, VIRGINIA BEACH, VA 23452-5207 Mrs. Ruth Hodges Smith -2- September 3, 2002 Re: Abstention Pursuant to Section 2.2-3115(E), Code of V~rg~nia Accordingly, I respectfully request that you record th~s declaration in the official records of C~ty Councd. Thank you for your assistance in this matter. Sincerely, Reba S. McClanan Councllmember RSM/RRI AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO AMEND AND FURTHER EXTEND AN OPTION TO PURCHASE REAL PROPERTY LOCATED AT RUDEE LOOP WHEREAS, Rudee Loop has been ~dent~fied as a prime location for a real estate 6 development at the Ocean front, and the development of Rudee Loop would complement the Pavilion 7 expansion and ~s consistent w~th the Oceanfront Resort Concept Plan, WHEREAS, on December 16, 1997, the C~ty Council (a) authorized the C~ty Manager to 9 execute an option agreement (the "Herman Option") between the City of V~rglma Beach and Robert 10 Hem~an Propemes, L L C, Hen'nan, Inc, and Robert Herman (collectively "Herman") granting the 11 C~ty the opnon to purchase a 2 73 acre s~te located at Rudee Loop (the "Herman Property") on or 12 before September 30, 1998, w~th the right to extend the Herman Option until September 30, 1999, 13 and established Capital Project #9-302, Rudee Loop Development - Phase I (Part~al), to fund the 14 purchase of the Herman Option and the extension of the Herman Opnon, 15 WHEREAS, on September 28, 1999, the C~ty Council authorized the C~ty Manager to further 16 extend the Herman Option until September 30, 2000, w~th the right to extend the Herman Option 17 for two additional one year periods until September 30, 2002, 18 WHEREAS, the City Council has determined ~t to be ~n the best interests of the C~ty to 19 further extend the Herman Opnon, 20 WHEREAS, the extension of the Hero, an Option requires a one-tune extension fee of 21 $20,000 and an extension fee of $200,000 for extending the option through September 30, 2003, 22 xwth the right to extend the Herman Option for an add~tlonal twelve months for an add~nonal 23 extension fee of $200,000, and 24 WHEREAS, sufficient funds are avmlable ~n Capital ProJect #9-302, Rudee Loop 25 Development - Phase I (Part~al) to pay the amounts reqmred to extend the Option 26 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 27 VIRGINIA BEACH, VIRGINIA 28 1 The C~ty Manager or h~s designee ~s hereby authorized to enter ~nto a second 29 amendment to opnon agreement w~th Robert Herman Properties, L L C, Herman, Inc, and Robert 30 Herman for the purchase of approximately 2 73 acres of property at Rudee Loop, with such 31 agreement to be m form and substance satisfactory to tile C~ty Manager and the City Attorney, 32 ~nclud~ng tile essential terms outhned ~n the Sun'unary of Basic Tern-is of Second Amendment to 33 Option and Agreement attached hereto 34 2 The C~ty Manager ~s further authorized to extend the Herman Option described in the 35 preceding paragraph from September 30, 2002, until September 30, 2004 36 Adopted by the Council of the City of Virginia Beach, V~rg~rua, on the3rd day of 37 September ,2002 38 CA-8567 39 F \DataXATY\Ordm\NONCODE\ca8567 ord wpd 40 R-2 . 41 August 2, 2002 42 APPROVED AS TO CONTENT 43 44 45 46 APPROVED AS TO LEGAL SUFFICIENCY 47 48 49 City Attorney SECOND AMENDMENT TO OPTION AND AGREEMENT HERMAN - RUDEE LOOP Purchase Price $7,605,000 (as of 9/30/02) plus $30,000 per month or portion thereof (4 8% annually) from 10/02 through month in which closing occurs [Note: Original purchase price $6,174,200 plus $16,800/month (3.3% annually) thru 9/30/99; 1st amendment purchase price $6,500,000 plus $26,000/month (4.8% annually) thru 9/30/021 [Note 2:$169,000 of increase in purchase price equals parking lot improvement estimatel Extension Periods and Fees 10/01/02 through 09/30/03 10/01/03 through 09/30/04 $200,000 $200,000 Extension Fees payable on or before 10/1 of each Extension Period and shall apply to Purchase Price One-time Extension Fee. $20,000 payable on or before 10/01/02 which will not apply to Purchase Price Parking Lot Improvement. Increase of $169,000 in Purchase Price representing required improvements to parking lot paid by City at time of execution of Second Amendment. If City does not exercise Option, that portion of purchase price is to be repaid to City Deed Restrictions Deed restrictions that City required removed waived by C~ty, City to accept property with restrictions Owners covenant to defend appeal of Vlrglma Beach Circuit Court decision removing restrictions through final dlsposmon (including appeal through Virginia Supreme Court and any remand thereof) New Timing for Settlement Option may be exercised at any time by giving Owners notice, with settlement to occur within 60 days, provided if settlement occurs during the period from 3/1 through 10/31 of any year ("Restaurant Operating Period"), Owners can continue to operate restaurant and parking lots until the end of that Restaurant Operating Period, without rent If settlement is scheduled for months of November or December, Owners can require settlement to be extended until 2/1 of the following year but no increase in Purchase Price shall occur for the month of January (Same as 1st Amendment) (Note new timing requirement on settlement) if option notice 1s given between 11/30 and 2/28 of any season, City can either: reimburse Owners carrying extra expenses for business during the "slow" period and for prepaid for extra carrying costs for the coming summer season, or defer closing until after 10/31 of the next year, or close within 60 days and permit Owners, without payment o f rent, to operate Restaurant and parking lots and to remove anything Owners desire to remove as permitted under the Option and Agreement until the end of the Restaurant Operating Period, 10/31 F D.lla'AT¥'.Forlns CollllllerCld[ PioJ¢¢I$ Ruder. Loop',hcrnhll! opt 2lid iiiiclld ~r4 v, pd Item VI-H.3. a. - 26- ORDINANCES/RES OL UTIONS ITEM # 50104 Upon motton by Vtce Mayor Mandigo, seconded by Councd Lady Eure, Ctty Council ADOPTED Ordtnance re temporary encroachment tnto porttons of the Ctty's rights-of-way Ctty matntenance easement by OLYMPIA BENDIX, LLC, re a storage budding at 295 Bendix Road (DISTRICT 5 - L YNNH,4 VEN) The followtng condtttons shall be requtred The temporary encroachment shall be constructed and mamtamed m accordance wtth the laws of the Commonwealth of Vtrgtma and the Ctty of Vtrgmta Beach and m accordance wtth the Ctty's spec~ficaaons and approval 2 The temporary encroachment shall termtnate upon nottce by the Ctty to the apphcant and, wtthm thtrty (30) days after such nottce ts gtven, the temporary encroachment must be removed from the encroachment area by the apphcant and the apphcant wdl bear all costs and expenses of such removal The apphcant shall tndemntfy and hold harmless the City, tts agents and employees from and agatnst all clatms, damages, losses and expenses, tncludtng reasonable attorney's fees, tn case tt shall be necessary to file or defend an action artstng out of the locatton or extstence of the temporary encroachment Nothtng herein contatned shall be construed to enlarge the permtsston and authortty to permtt the maintenance or construction of any encroachment other than that spectfied heretn and to the hmtted extent spectfied heretn, nor to permtt the matntenance and construcaon of any encroachment by anyone other than the apphcant 5 The apphcant agrees to matntatn the temporary encroachment so as not to become unstghtly or a hazard The apphcant must obtatn a permtt from the Office of Development Servtces Center /Planntng Department prtor to commenctng any constructton wtthtn the encroachment area Prtor to tssuance ora rtght-of-way permtt, the apphcant must post surettes, tn accordance with thetr engtneer's cost esttmate, to the Office of Development Servtces Center/Planntng Department The apphcant shah obtain and keep tn force aH rtskproperty tnsurance and general habdtty or such tnsurance as ts deemed necessary by the Ctty, and all tnsurance pohctes must name the Ctty as addtttonal named tnsured or loss payee, as apphcable The apphcant must also carry comprehensive general habdtty tnsurance tn an amount not less than Ftve Hundred Thousand Dollars ($500,000), combtned stngle hmtts of such tnsurance pohcy or pohctes The apphcant must provtde endorsements provtcltng at least thtrty (30) days'wrttten nottce to the Cttyprtor to the cancellatton or termtnatton of, or matertal change to, any of the tnsurance polictes The apphcant assumes all responstbthttes and habthttes, vested or conttngent wtth relatton to the temporary encroachment September 3, 2002 Item VI-H.$.a. -27- ORDINANCES/RESOLUTIONS ITEM # 50104 (Continued) 10 The City, upon revocation of such authority and permtsston so granted, may remove the encroachment and charge the cost thereof to the Grantee and collect the cost tn any manner provided by law for the coIlectton of local or state taxes, may requtre the Grantee to remove the encroachment and, tf such removal shall not be made wtthtn the ttme ordered hereinabove by thts Agreement, the Ctty may tmpose a penalty tn the sum of One Hundred Dollars ($100) per day for each and every day that the encroachment ts allowed to conttnue thereafter, and may collect such compensatton and penalttes tn any manner provided by law for the collection of local or state taxes. Voting 1 I-0 (By ConsenO Councd Members Vottng Aye Margaret L Eure, Louts R Jones, Reba S. McClanan, Rtchard A Maddox, Vice Mayor Robert C Mandtgo, Jr., Mayor Meyera E. Oberndorf Jtm Reeve, Peter W Schmtdt, Ron A Vtllanueva, Rosemary Wdson and James L Wood Councd Members Vottng Nay None Councd Members Absent None September 3, 2002 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 29 3O 31 32 Requested by Department of Public Works AN ORDINANCE TO AUTHORIZE TEMPORARY ENCROACHMENTS INTO A PORTION OF A CITY MAINTENANCE EASEMENT AT 295 BENDIX ROAD BY OLYMPIA BENDIX, LLC, ASSIGNS AND SUCCESSORS IN TITLE WHEREAS, Olympia Bendix, LLC, desire to construct and maintain a storage building ~nto the City's maintenance easement located at 295 Bendix Road. WHEREAS, City Council ~s authorized pursuant to ~§ 15.2- 2009 and 15.2-2107, Code of Virginia, 1950, as amended, to authorize a temporary encroachments upon the City's maintenance easement subject to such terms and conditions as Councml may prescribe. NOW, THEREFORE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That pursuant to the authority and to the extent thereof contazned in §~ 15.2-2009 and 15.2-2107, Code of Vzrg~nia, 1950, as amended Olympia Bendmx, LLC, assigns and successors ~n tmtle are authorized to construct and maintain a temporary encroachment for a storage buildzng, in the Cmty's maintenance easement as shown on the map entitled: "ENCROACHMENT EXHIBIT FOR CONVERGENCE CENTER BUILDING 'B' JUNE 11, 2002," a copy of which ~s on f~le in the Department of Public Works and to which reference ~s made for a more particular description; and BE IT FURTHER ORDAINED, that the temporary encroachments are expressly subject to those terms, condmtions and criterma contained in the Agreement between the City of V~rgzn~a Beach and Olympia Bendmx, LLC, (the "Agreement") which ~s attached hereto and incorporated by reference; and BE IT FURTHER ORDAINED that the C~ty Manager or his authorized designee ~s hereby authorized to execute the Agreement. 33 34 35 36 37 BE IT FURTHER ORDAINED, that this Ordinance shall not be in effect untzl such time as Olympia Bendix, LLC and the City Manager or hzs authorized designee execute the Agreement. Adopted by the Counczl of the City of Virginia Beach, V~rglnia, on the 3rd__ day of September , 2002. 38 39 40 41 42 43 44 45 46 47 48 CA-# gsalmons/olympla/ord. R-1 PREPARED: 07.18.02 fD AS TO CONTENTS DE PARTMENT APPROVED AS TO LEGAL SUFFICIENCY AND/F~RM CITY AT'TORN~---- TilJ. MAN OIL SCALE 1'-$200' LOCATION MAP -/ / I I / I I © © / / \ \ \ LOCATION MAP SHOWING ENCROACHMENT REQUESTED OLYMPIA BENDIX, LI.C INTO BY CITY DRAINAGE EASEMENT 295 BENDIX ROAD SCALE: 1' = 300' PREPARED BY P.W. ENG. DRAFT. 7-22-02 PREPARED BY VIRGINIA BEACH CII¥ ATTORNEY'S OFFICE THIS AGREEMENT, made this __ day of ,2002, by and between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation, Grantor, "City", and OLYMPIA BENDIX, LLC, ITS, ASSIGNS AND SUCCESSORS IN TITLE, "Grantee", even though more than one. WITNESSETH: That, WHEREAS, the Grantee is the owner of that certain lot, tract, or parcel of land designated and described as "PARCEL 1" as shown on that certain plat entitled, "RESUBDIVISION OF PROPERTY OF OLYMPIA BENDIX LLC (D.B. 4163, P. 732)(D.B. 4229, P. 564) VIRGINIA BEACH, VIRGINIA (M.B. 285, P. 65) SCALE: 1" = 100' MARCH 31, 2000 ROUSE - SIRINE ASSOCIATES, LTD. SURVEYORS AND MAPPING CONSULTANTS 333 OFFICE SQUARE LANE VIRGINIA BEACH, VIRGINIA 23462 "as recorded in M.B. 287, at Page 70 in the Clerks Office ofthe Circuit Court of the City of Virginia Beach, and being further designated and described as 295 Bendix Road, Virginia Beach, Virginia 23452; That, WHEREAS, it is proposed by the Grantee to construct and maintain a storage building, "Temporary Encroachment", in the City of Virginia Beach; WHEREAS, in constructing and maintaining the Temporary Encroachment, it is necessary that the said Grantee encroach into a portion of an existing City drainage easement located adjacent to the north side of Interstate 264 and along the southern proper~y line of Parcel 1, "The Encroachment Area"; and WHEREAS, Grantee has requested that the City permit a Temporary Encroachment within The Encroachment Area. GPIN 1477-72-1058-0000 NOW, THEREFORE, for and in consideration of the premises and of the benefits accruing or to accrue to the Grantee and for the further consideration of One Dollar ($1.00), in hand paid, to the City, receipt of which is hereby acknowledged, the City doth grant to the Grantee permission to use The Encroachment Area for the purpose of constructing and maintaining the Temporary Encroachment. It is expressly understood and agreed that the 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's specifications and approval and is more particularly described as follows, to wit: A Temporary Encroachment into The Encroachment Area as shown on that certain plat entitled: "ENCROACHMENT EXHIBIT FOR CONVERGENCE CENTER BUILDING 'B' JUNE 11, 2002~" 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 to the Grantee, and that within thirty (30) days at~er such notice is given, the Temporary Encroachment must be removed from The Encroachment Area by the Grantee; and that the Grantee will bear all costs and expenses of such removal. It is further expressly understood and agreed that the Grantee shall indemnify and hold harmless the City, 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 the Temporary Encroachment. It is further expressly understood and agreed that nothing herein contained shall be construed to enlarge such 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 Grantee. It is further expressly understood and agreed that the Grantee agrees to maintain the Temporary Encroachment so as not to become unsightly or a hazard. It is further expressly understood and agreed that the Grantee must obtain a permit from the Office of Development Services Center/Planning Department prior to commencing any construction within The Encroachment Area. It is further expressly understood and agreed that prior to issuance of a right of way permit, the Grantee must post sureties, in accordance with their engineer's cost esthnate, to the Office of Development Services Center/Planning Department. It is further expressly understood and agreed that the Grantee must obtain and keep in force all-risk property insurance and general liability or such insurance as is deemed necessary by the City, and all insurance policies must name the City as additional named insured or loss payee, as applicable. The Grantee also agrees to carry comprehensive general liability insurance in an amount not less than $500,000.00, combined single limits of such insurance policy or policies· The Grantee will provide endorsements providing at least thirty (30) days written notice to the City prior to the cancellation or termination of, or material change to, any of the insurance policies. The Grantee assumes all responsibilities and liabilities, vested or contingent, with relation to the · Temporary Encroachment. It is further expressly understood and agreed that the City, upon revocation of such authority and permission so granted, may remove the Temporary Encroachment and charge the cost thereof to the Grantee, and collect the cost in any manner provided by law for the collection of local or state taxes; may require the Grantee to remove the Temporary Encroachment; and if such removal shall not be made within the time ordered hereinabove by this Agreement, the City may impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that the Temporary Encroachment is allowed to continue thereat~er, and may collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. IN WITNESS WHEREOF, the said Olympia Bendix, L.L.C. has caused this agreement to be executed by Cecil V. Cutchins, Manager of Olympia Bendix, L.L.C., a Virginia limited liability company, with due authority to bind said limited liability company. Further, that the City of Virginia 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: By: City Manager/Authorized Designee of the City Manager City Clerk OLYMPIA BENDIX, LLC Cecil V/C~tchjns~ ~' ~ ~ STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrumem was acknowledged before me this day of ,2002, by , CITY MANAGER/AUTHORIZED DESIGNEE OF THE CITY MANAGER. My Commission Expires: Notary Public STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrumem was acknowledged before me this day of ,2002, by RUTH HODGES SMITH, CMC, City Clerk for the CITY OF VIRGINIA BEACH. My Commission Expires: STATE OF I/l~l~ ~ CITY/COUNTY OF ~.6 ~A Notary Public , to-wit: The foregoing instrument was acknowledged before me this ~ t///7-~ dayof ,2002, by Cecil V. Cutchins, Manager on behalf of Olympia Bendix, LLC. My Commission Expires: N~tary Pnbljc APPROVED AS TO LEGAL SUFFI~.~Y CITY ATTORNEY APPROVED AS TO CONTENT REAL ESTATE AGENT X Z om t-- - Z ~Oz _ 0 O--J rD (D © --i,i 0 0 I I ! I OLYMPIA BENDIX, LLC 295 BENDIX ROAD Back wall of storage building looking west Southeast corner of building Back wall of storage building looking east Back wall of storage building looking west Item VI-H. 3.b. - 28 - ORDINANCES/RESOL UTIONS ITEM # $0105 Upon motton by Vtce Mayor Man&go, seconded by Councd Lady Eure, City Council ADOPTED: Ordtnance re temporary encroachments tnto porttons of the Ctty's rights-of-way Lake Wesley by WILLI FENSKE re boat lift, existtng floattng pter and replacing four extsttng moortngpdes at 500 Southstde Road The followtng conchttons shah be requtred 1 The temporary encroachment shall be constructed and matntatned tn accordance wtth the laws of the Commonwealth of Vtrgtnta and the Ctty of Vtrgtnta Beach and tn accordance wtth the Ctty's spectficattons and approval 2 The temporary encroachment shall termtnate upon nottce by the Ctty to the applicant and, wtthm thtrty (30) days after such nottce ts gtven, the temporary encroachment must be removed from the encroachment area by the apphcant and the apphcant will bear all costs and expenses of such removal The apphcant shall tndemntfy and hoM harmless the Ctty, tts agents and employees from and against all clatms, damages, losses and expenses, tncluchng reasonable attorney's fees tn case tt shall be necessary to file or defend an action artstng out of the locatton or existence of the temporary encroachment Nothtng herein contained shall be construed to enlarge the permtsston and authortty to permtt the matntenance or constructton of any encroachment other than that spectfied heretn and to the hmtted extent specified heretn, nor to permtt the matntenance and construction of any encroachment by anyone other than the apphcant 5 The apphcant agrees to maintatn the temporary encroachment so as not to become unstghtly or a hazard The applicant must obtain a waterfront constructton permtt from the Development Servtces Center of the Planmng Department prtor to commencing any constructton withtn the encroachment area The apphcant must obtatn an approved Jotnt Permtt Apphcation from Waterfront Operattons of the Planntng Departmentprtor to commenctng any constructton wtthtn the encroachment area The apphcant shah obtatn and keep in force all rtskproperty insurance and general habdtty or such tnsurance as is deemed necessary by the Ctty, and all tnsurance pohctes must name the Ctty as addtttonal named tnsured or loss payee, as apphcable The apphcant must also carry comprehenstve general habthty tnsurance tn an amount not less than Five Hundred Thousand Dollars ($500,000), combtned stngle hmtts of such insurance pohcy or pohctes The apphcant must provtde endorsements provtchng at least thtrty (30) days'wrttten nottce to the Cttyprtor to the cancellatton or termtnatton of or matertal change to, any of the tnsurance pohctes The apphcant assumes all responstbthttes and habthttes, vested or contingent wtth relation to the temporary encroachment September 3, 2002 Item VI-H.3.b. - 29 - ORDINANCES/RESOLUTIONS ITEM # 50105 (Continued) 9 The Temporary Encroachment must conform to the mtnimum setback requtrements as estabhshed by the City 10 The apphcant must submtt, for revtew and approval, a survey of the Encroachment Area certtfied by a regtstered Professtonal Engineer or a hcensed Land Surveyor, and/or "as built "plans of the Temporary Encroachment sealed by a regtstered Engtneer, tf requtred by either the Ctty Engineer's Office of the Engtneertng Divtsion of the Department of Pubhc Works 11 The City, upon revocation of such authority and permtsston so granted, may remove the encroachment and charge the cost thereof to the Grantee and collect the cost tn any manner provided by law for the collection of local or state taxes, may requtre the Grantee to remove the encroachment and, tf such removal shah not be made wtthtn the ttme ordered heretnabove by thts Agreement, the Ctty may impose a penalty tn the sum of One Hundred Dollars ($100) per day for each and every day that the encroachment ts allowed to conttnue thereafter, and may collect such compensatton andpenalttes tn any mannerprovtded by law for the collectton of local or state taxes Vottng 11-0 (By ConsenO Counctl Members Vottng Aye Margaret L Eure, Louts R Jones, Reba S McClanan, Rtchard A Maddox, Vtce Mayor Robert C. Man&go, Jr, Mayor Meyera E Oberndorf Jtm Reeve, Peter W Schmtdt, Ron A Vdlanueva, Rosemary Wtlson and James L Wood Counctl Members Vottng Nay None Counctl Members Absent None September 3, 2002 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O 31 32 33 34 35 36 Requested by Department of Public Works AN ORDINANCE TO AUTHORIZE A TEMPORARY ENCROACHMENT INTO A PORTION OF THE CITY'S PROPERTY OF LAKE WESLEY BY WILLI FENSKE, HIS HEIRS, ASSIGNS AND SUCCESSORS IN TITLE WHEREAS, WILLI FENSKE, desires to construct and maintain a boat lift, an existing floating pier, and to replace four (4) existing mooring piles into the City's property known as Lake Wesley. WHEREAS, City Council is authorized pursuant to §§ 15.2- 2009 and 15.2-2107, Code of Virginia, 1950, as amended, to authorize a temporary encroachment upon the City's property subject to such terms and conditions as Council may prescribe. NOW, THEREFORE, 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 §§ 15.2-2009 and 15.2-2107, Code of Virginia, 1950, as amended, WILLI FENSKE, his heirs, assigns and successors in title, is authorized to construct and maintain a temporary encroachment for a boat lift, an existing floating pier, and to replace four (4) existing mooring piles in the City's property known as Lake Wesley as shown on that certain plat entitled: "REAL ESTATE ENCROACHMENT SITE PLAN PIER, FLOAT, MOORING PILES AND BOAT LIFT FOR WILLI FENSKE LOT B-6, BLOCK B, REPLAT OF RUDEE HEIGHTS BEACH DISTRCT [sic] VIRGINIA BEACH, VA 23451 (M.B. 26 PG. 57) DATE: APRIL 8, 2002", a copy of which is on file in the Department of Public Works to which reference is made for a more particular description; and BE IT FURTHER ORDAINED, that the temporary encroachment is expressly subject to those terms, conditions and criteria contained in the Agreement between the City of Virginia Beach and WILLI FENSKE (the "Agreement"), which is attached hereto and incorporated by reference; and BE IT FURTHER ORDAINED, that the City Manager or his authorized designee is hereby authorized to execute the Agreement. 37 38 39 40 41 BE IT FURTHER ORDAINED, that this Ordinance shall not be in effect until such time as WILLI FENSKE and the City Manager or his authorized designee execute the Agreement. Adopted by the Council of the City of Virginia Beach, Virginia, on the 3rd day of September , 2002. 42 43 44 45 CA#- TKENN\ENCROACH\FENSKE.ORD R-1 PREPARED: 7/22/02 APPRC)-V..ED AS TO CONTENTS V SIGNATURE DEPARTMENT APPROVED AS TO LEGAL SUFFICIENCY AND FGRM _ -- CITY AT'fORNEY PREPARED BY VIRGINIA BEACH CITY ATTORNEY'S OFFICE EXEMPTED FROM RECORDATION TAXES UNDER SECTIONS 58,1-811 (a)(3) AND 58.1-811 (c)(4) REIMBURSEMENT AUTHORIZED UNDER SECTION 25-249 THIS AGREEMENT, made this / ~ +~ ~--~'J7 - day of , 20~ , by and between the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, the "City" Grantor and WILLI FENSKE, HIS HEIRS, ASSIGNS AND SUCCESSORS IN TITLE, the "Grantee" (even if more than one). W I T N E S S E T H: WHEREAS, the Grantee is the owner of that certain lot, tract or parcel of land designated and described as Lot B-6, Block B, as shown on the Replat of Rudee Heights, M.B. 26, PG. 57, and being further designated and described as 500 Southside Road, Virginia Beach, VA 23451; and WHEREAS, it is proposed by the Grantee to construct and maintain a boat lift, an existing floating pier, and to replace 4 existing mooring piles, a "Temporary Encroachment" in the City of Virginia Beach; and WHEREAS, in constructing and maintaining the Temporary Encroachment, it is necessary that the Grantee encroach into a portion of an existing City property known as Lake Wesley, the "Encroachment Area", and the Grantee has requested that the City · permit a Temporary Encroachment within the Encroachment Area. NOW, THEREFORE, for and in consideration of the premises and of the benefits accruing or to accrue to the Grantee, and for GPIN: 2427-20-0173 the further consideration of One Dollar ($1.00) in hand paid to the City, receipt of which is hereby acknowledged, the City doth grant to the Grantee permission to use the Encroachment Area for the purpose of constructing and maintaining a Temporary Encroachment. It is expressly understood and agreed that the 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's specifications and approval and is more particularly described as follows, to- wit: A Temporary Encroachment into the Encroachment Area as shown on that certain plat entitled: "REAL ESTATE ENCROACHMENT SITE PLAN PIER, FLOAT, MOORING PILES AND BOAT LIFT FOR WILLI FENSKE LOT B-6, BLOCK B, REPLAT OF RUDEE HEIGHTS BEACH DISTRCT [sic] VIRGINIA BEACH, VA 23451 (M.B. 26 PG. 57) DATE: APRIL 8, 2002", a copy of which is attached hereto as Exhibit "A" 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 to the Grantee, and that within thirty (30) days after the notice is given the Temporary Encroachment must be removed from the Encroachment Area by the Grantee, and that the Grantee will bear all costs and expenses of such removal. It is further expressly understood and agreed that the Grantee shall indemnify and hold harmless the City, 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 the Temporary Encroachment. It is further expressly understood and agreed that nothing herein contained shall be construed to enlarge the 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 Grantee. It is further expressly understood and agreed that the Grantee agrees to maintain the Temporary Encroachment so as not to become unsightly or a hazard. It is further expressly understood and agreed that the Grantee must obtain a waterfront construction permit from the Development Services Center of the Planning Department prior to commencing any construction within the Encroachment Area. It is further expressly understood and agreed that the Grantee must obtain an approved Joint Permit Application from Waterfront Operations of the Planning Department prior to commencing any construction within the Encroachment Area. It is further expressly understood and agreed that the Grantee must obtain and keep in force all-risk property insurance and general liability insurance, or such insurance as is deemed necessary by the City, and all insurance policies must name the City as additional named insured or loss payee, as applicable. The Grantee also agrees to carry comprehensive general liability insurance in an amount not less than $500,000.00, combined single limits of such insurance policy or policies. The Grantee will provide endorsements providing at least thirty (30) days written notice to the City prior to the cancellation or termination of, or material change to, any of the insurance policies. The Grantee assumes all responsibilities and liabilities, vested or contingent, with relation to the Temporary Encroachment. It is further expressly understood and agreed that the Temporary Encroachment must conform to the minimum setback requirements as established by the City. It is further expressly understood and agreed that the Grantee must submit, for review and approval, a survey of the Encroachment Area certified by a registered professional engineer or a licensed land surveyor, and/or "as built" plans of the Temporary Encroachment sealed by a registered professional engineer, if required by either the City Engineer's Office or the Engineering Division of the Department of Public Utilities. It is further expressly understood and agreed that the City, upon revocation of such authority and permission so granted, may remove the Temporary Encroachment and charge the cost thereof to the Grantee and collect the cost in any manner provided by law for the collection of local or state taxes; may require the Grantee to remove the Temporary Encroachment and, pending such removal, the City may charge the Grantee for the use of the Encroachment Area the equivalent of what would be the real property tax upon the land so occupied if it were owned by the Grantee; and, if such removal shall not be made within the time ordered hereinabove by this Agreement, the City may impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that the Temporary Encroachment is allowed to continue thereafter, and may collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. IN WITNESS WHEREOF, WILLI FENSKE, the said Grantee has caused this Agreement to be executed by his signature and seal duly affixed. 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. (SEAL) ATTEST: CITY OF VIRGINIA BEACH By City Manager/Authorized Designee of the City Manager City Clerk i i APPROVED AS TO LEGAL SUFFICIENCY ,.. (SEAL) .~~~PROVED AS TO CONTENT DI::PA RTM~NII STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this day of , 20 , by , City Manager/Authorized Designee of the City Manager, on behalf of the CITY OF VIRGINIA BEACH. My Commission Expires: Notary Public STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this day of , 20 , by RUTH HODGES SMITH, city Clerk for the CITY OF VIRGINIA BEACH. My Commission Expires: Notary Public STATE OF ~/,~%/¥~ ~ CITY/COUNTY OF /-/~-, ~ ~ to-wit: The foregoing instrument was acknowledged before me this /~; f// day of ~%~ , 20 ~z , WILLI FENSKE. My Commission Expires: Notary Public by EXIST. BOAT LIFT LAKE WESLEY EMP REPLACE: 4, EX. PILES F..MP: EXISTING MO(g~ING PILES [alp · 13'20'47' W 19.,.~' · IMP EX. FLOAT AND PILES PIER, FLOAT, PILES AND PROPOSED UFT ARE LOCTAED ON CITY PROPERTY: 2427-20-7891 PROPOSED I~LACE. MEJ~T MOORING PILES TO BE CLASS B PILES WITH 5OX OF PILE LENGTH BE/OW MUDUNE. PROPOSED BOAT UFT EXISTING RIPRAP EXISTING FLOA'I1NG PIER AND PILES LOT B-7 N/F R. DOUMAR 2~,27-20-1201 WOOD DECK 1-STY-STUCCO # 500 MLW 0.00 AND MHW 2.8' AT FACE OF EXISTING BULKHEADS. LOT N/F L YATES 24.27-10-9095 IPF ,S'O~/ GPIN' 2427-20-0173-0000 WATERFRONT CONSULTING, INC 1112 JENSEN DRIVE, STE. 206 VIRGINIA BEACH, VA 23451 PHONE:. (757) 425-8244 FAX: (757) 425-8244 IPF PLAN VIEW SCALE-l"' ='-40' - I REAL ESTATE ENCROACHMENT SITE PLAN PIER, FLOAT, MOORING PILES AND BOAT UFT FOR WILM FENSKE LOT B-6, BLOCK 6, REPLAT OF' RUDEE HEIGHTS BEACH DISTRCT VIRGINIA BEACH, VA 234.51 (M.B. 26 PG. 57) DATE: APRIL 8, 2002 I I I I LOCATION MAP SCALE: 1" -- 1,600' f / 0 0 0 O 0 LAKE WESLEY 0 C, LOCATION MAP /, FOR ' ENCROACHMENT FO WILLi FENSKE 500 SOUTHSlDE SCALE:I' = 100' ! SOUTHSIDE.DGN MJ.S. 6,02 PREPARED BY PAN ENG. CADD DEPT. 20-JUN-2002 LOOKING NORTH LOOKING EAST ,A S~A¥~SI~': Item VI-H. 4. - 30- ORDINANCES/RES OL UTIONS ITEM # 50106 Upon motton by Vtce Mayor Man&go, seconded by Councd Lady Eure, Ctty Councd ADOPTED Ordtnance to AUTHORIZE the Ctty Manager to execute an Amendment to the LEASE of ctty-owned property at Ocean Lakes Commumty Park to allow tnstallation of #3 ballfield lighting, to Virginia Beach Little League, Inc and thetr operation of youth baseball, contatmng 13 06 acres Voting 11-0 (By ConsenO Councd Members Vottng Aye Margaret L. Eure, Louts R Jones, Reba S. McClanan, Richard A. Maddox, Vice Mayor Robert C. Man&go, Jr, Mayor Meyera E Oberndorf Jtm Reeve, Peter W. Schmtdt, Ron A Vdlanueva, Rosemary Wtlson and James L Wood Counctl Members Vottng Nay None Council Members Absent None September 3, 2002 ORDINANCE AN ORDINANCE TO APPROVE AN AMENDMENT TO THE LEASE BETWEEN THE CITY AND VIRGINIA BEACH LITTLE LEAGUE, INC WHEREAS, the City of Vlrglma Beach ("City") is the owner of that certain parcel 7 of land contalmng approximately 24 6 acres, together with all improvements, located in Virginia 8 Beach, Vlrglma and known as the Ocean Lakes Community Park ("Park Site"), WHEREAS, Vlrglma Beach Little League, Inc ("VBLL") has been leasing a 13 06 :1_ 0 acre portion of the Park Site for the purpose of operating a youth baseball league by lease dated 11 January 1,2001 (the "Lease") 12 WHEREAS, VBLL has received an award ofa hght~ng system for a 200 foot baseball :1_3 field and the current Lease allows the installation lighting only on Ballfield # 4 which ~s a 300 foot :1_4 baseball field, 15 WHEREAS, VBLL has obtained the written approval of the Ocean Lakes Community l 6 Association to install the hghtlng system on Ballfield # 3 which ~s a 200 foot field, and a copy of the written approval letter ~s attached hereto as Exhibit A, and 18 WHEREAS, the City's Department of Parks and Recreation has determined that the 19 installation of the lighting system on Ballfield # 3 will not be a detriment or constitute a hazard to 2 0 the adjacent properties 21 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 2 2 VIRGINIA BEACH, VIRG1NIA 23 That the Amendment to the Lease between the City and Vlrgima Beach Little League, 24 Inc allowing the lnstallat~on of lighting on Ballfield # 3 in Paragraph 3 of the Lease, is hereby 2 5 approved, and the City Manager or hxs designee is hereby authorized to execute such Amendment 2 6 ~n the form substantially attached hereto 27 Adopted by the Council of the City of Vlrg~nla Beach, Virginia, on the3rd day of 28 September ,2002 ( A-8568 G \WP\BZA\vbllamd o~d wpd 8/20/02 APPR Departm~ent Par]t~i & Recreanon APPROVED AS TO LEGAL SUFFICIENCY -- Department of Law /'[ EXHIBIT A Susan Topping - Fw: Little League Lights I II From: To: Date: Subject: "Andrew Adler" <aadler6@cox.net> "Susan Topping" <STOPPING@vbgov.com> 6/28/2002 10:14 PM Fw: Little League Lights I just redeved this emall from the Ocean Lakes Community Association, Inc. Let me know if this is good enough to go forward with the request to put up ball field lighting on field #3. Thanks Andy Adler, President Virginia Beach bttie League ..... Original Message ..... From: <OCEANLAKESVBOaol.com> To: "Adler, Andrew L." <aadlerOnorthropgrumman.com> Sent: Fdday, .lune 28, 2002 4:20 PM Subject: Little League Ughts > Dear Mr. Adler, > · Pursuant to our conversation of eadier this week, ! am wdUng to conllrm · that the Ocean Lakes Board of Directors has approved the installaUon of · Musco lighting equipment as ouUined in your letter dated .lanuary 29, 2002. · · Should you have any questions, please feel free to contact me. · Sincerely, · For the Board of D~rectors · Ocean Lakes Community Association, Inc. · Ida Draper · Assooatlon Manager o/~")(1 do/~')Ctqethnnq\qtn' Gl~'/IC"\~ne'~mentq ~ :an nninp\T,neal%?0gettine,~\Temn\t~W~00005.RTM 7111200? FIRST AMENDMENT TO THE LEASE BETWEEN THE CITY OF VIRGINIA BEACH AND VIRGINIA BEACH LITTLE LEAGUE, INC. THIS FIRST AMENDMENT TO THE LEASE is made this __. day of , 2002, by and between the CITY OF VIRGINIA BEACH, Virginia, a mummpal corporation of the Commonwealth of Virginia (the "City") and VIRGINIA BEACH LITTLE LEAGUE, INC, a non- profit Virginia corporation ("VBLL"), and amends that Lease dated January 1,2001, by and between the City and the VBLL for the use of a 13.06 acre portion of the Ocean Lakes Community Park located ~n the City of Virglma Beach. WITNESSETH: THAT FOR AND IN CONSIDERATION of the sum of One Dollar ($1.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto amend the Lease as follows: 1. The introduction to Paragraph 3 of the Lease shall be deleted and replaced with the following paragraph: "Lessor hereby authorizes Lessee and Lessee agrees to install on the Leased Premises six (6) new MUSCO seventy (70') foot, galvanized steel ballfield lighting poles and a total of fifty-four (54), fifteen hundred (1,500) watt lighting fixtures on the boys senior league ballfield (ballfield #4), and four (4) new MUSCO sixty (60') foot, galvanized steel poles and a total of twenty-six (26), fifteen hundred (1500) watt Metal Halide lighting fixtures on the minor ballfield (ballfield #3) subject to the following conditions:" 2. In all other respects the Lease shall remain in full force and effect. WITNESS the following signatures: CITY OF VIRGINIA BEACH ATTEST: Ruth Hodges Smith C~ty Clerk By: City Manager/Authorized Designee VIRGINIA BEACH LITTLE LEAGUE, INC. By: President STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this day of ,2002, by ., City Manager/Authorized City Manager of the City of Virginia Beach, Virginia, on its behalf. He/She is personally known to me. Notary Public My Commission expires STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this day of ,2002, by Ruth Hodges Smith, City Clerk of the City of Virginia Beach, Virginia, on its behalf. She is personally known to me. Notary Public My Commission expires STATE OF VIRGINIA CITY OF , to-wit: The foregoing instrument was acknowledged before me this day of , 2002, by , President of Virginia Beach Little League, Inc., on its behalf. Notary Public My Commission expires APPROVED AS TO LEGAL SUFFICIENCY AND FORM Law Del~artment //J A~AL AS TO CONTENT Dep't o-f Pa~ks ~ Recreation C \Documents and Settmgs\stopp~ng~Local Settings\Temp\vbll amd wpd PRESIDENT Andrew Adler 1621 Po~ncare Bend V~rgm~a Beach, VA 23454 (757) 721-6187 (Home) (757) 621-1356 (Mobde) (757) 498-5513 (Work) (757) 498°5670 (Fax) aadler(~.northrop.q rumman corn LEAGUE OFFICERS Vice President (American) Brad Lew~s Vice President (National) Jerry Scoff Secretary Marcia Brunet Treasurer Debra Jarzynka Player Agent Cathy Lew~s Virginia BeaChp. M.B.Ultl® League 1581-107 General Booth Blvd. Virginia Beach, VA 23454 (767) 426-7663 Federal Tax Idenbficatlon Numbers League Idenhficahon Numbers 54-1375758 V~rglnla Beach American LL 346-08-16 91-1848969 V~rg~n~a Beach Nahonal LL 346-08-20 January 29, 2002 Ms. Ida Draper, President Ocean Lakes Community Civic League 1718 Wellsford Dr. Virginia Beach, VA 23454 Dear Ms. Draper: I am requesting for myself and Susan Topping of the Virginia Beach Department of Parks and Recreation to attend your next civic league meeting so that I can present to your board of directors information about a change in the proposed installation of ball field lighting at the Virginia Beach Little League complex. You may recall that Little League IntemaUonal recogn~ i-_ed the Virginia Beach L~ttle League m 1998 for having the best Safety Plan in the Nation. The prize award was a Musco Sports lighting system to light a 200' Little League siz~ field. Safety Officer Lynn Metheny Information Officer Andrew Adler Umpire-in-Chief Mark Saunders Equipment Manager Mark Lovenng Field Manager Dave Reed Coaching Coordinator Jack Mckinsey Auxiliary Chair Mane Resales Tlus matter has been before your board before and there was no objection to us installing ball field hghung on the Senior 300' ball field (4), however, tbe Musco lightmg eqmpment that the V~rguua Beach Little League was awarded is only for a 200' field. Susan Topping has requested that I aRend your board meeting to inform you of this change from hghtmg the 300' field (4) to wanting to light a 200' field (3). Please see enclosed Virginia Beach L~ttle League Complex Diagram. I would like the opportumty to present to you and your board the change m field lighting and answer any questions you may have about tlus project. Your land cons~demuon is greatly appreciated. You may reach me at 621-1356 or by cnnml at aadler~Inorthropgrumman.eom Very truly yours Andrew Adler, President V~rguua Beach Ltttlc League cc-' Susan Topping Departmem of Parks & Recreation Mumcipal Center Bldg 21 2408 Courthouse Drive Virguua Beach, VA 23456 (757)563-1118 stoppmg~3vbgov corn www myteam com/go/wrgin~abeachamencanll Virginia Beach* Little' League' Complex' Diagram l, I Field (1) Majors i · e D,~AINA(,, ..pmmrrnl~ - ~m~ -_2. (3) Field'(4) 300' Item VI-H. 5. - 31 - ORDINANCES/RES OL UTIONS ITEM # 50107 Upon motton by Vtce Mayor Man&go, seconded by Counctl Lady Eure, Ctty Council ADOPTED Or&nance to AUTHORIZE the Ctty Manager to EXECUTE a Deed of Boundary Settlement wtth the Umted States of Amertca re Red tVing Lake Golf Course of a 5-acre boundary overlap Vottng 11-0 (By Consent) Council Members Vottng Aye Margaret L Eure, Louts R Jones, Reba S McClanan, Richard A Maddox, Vtce Mayor Robert C Man&go, Jr, Mayor Meyera E Oberndorf Jtm Reeve, Peter W Schmtdt, Ron A Vtllanueva, Rosemary Wtlson and James L Wood Counctl Members Vottng Nay None Counctl Members Absent None September 3, 2002 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A DEED OF BOUNDARY SETTLEMENT RELATING TO RED WING LAKE GOLF COURSE WHEREAS, pursuant to Chal)ter 690 of the 1994 Acts of Assembly, tile Commomvealth of 6 Virglrna conveyed all at)proximately 288-acre tiact of land located at Camp Pendleton (the 7 "Properly") to tile City of VIrg~nla Beach oil xvhich tile City opciates Red Wing Lake Golf Course, WHEREAS, tile P~opcrty is adjacent to Dam Neck Amphibious Base, which is o~vned by the 9 United States of America, 10 WHEREAS, there is all approximately 5 acre boundary ovei Iai) between Red W~ng Lake Golf 11 Course and Darn Neck created by older inconsistent recolded plats and deeds ~n the chain of title to 12 thc United States, 13 WHEREAS, tile Ur~lted States has agreed with tile City's assertion that tile City has a 14 superior clmm to the 5 acres ~n question, and 15 WHEREAS, because there exists some question as to tile correct boundary l~ne between Red 16 Wing Lake Golf Course and Dam Neck, the City and tile United States Government desire to 17 defimt~vely establish the boundary line 18 NOW, THEREFORE, BE 1T ORDAINED BY THE COUNCIL OF THE CITY OF 19 VIRGINIA BEACH, VIRGINIA 20 1 Tile C~ty Council approves (1) the establishment of tile boundary l~nc between tile 21 CIty's Red Wing Lake Golf Course and tile United States ofArnei ica's Dam Neck Amphibious Base 22 as depicted on the plat attached hercto as Exhibit A and (11) tile Deed of Boundary Settlement 23 attached hereto as Exhibit B which establIshes such boundary line 24 2 Tile City Council authorizes the City Mallagc~ to execute tile Deed of Boundary 25 Settlement Ill the [~Ol'lll attached to this Ordinance as Exhibit B, together with such modifications as 26 may be approved by the City Manager and thc City Attorney 28 Adopted by the Council of the C~ty of Virginia Beach, Virginia, on the3rd day of September 29 34 2002 CA-8565 C \WINDOWS\TEMP~REDWIN~2 WPD R-I August 2, 2002 APPROVED AS TO CONTENT 35 36 ~blic Works/Real-Estate 37 38 39 40 41 APPROVED AS TO LEGAL SUFFICIENCY City Attorney tN tHEIR TO CORRECT tHE CPW ~E$1~IATO~ OF THE SUBJECT TB~CT AREA 'F) ~ AREA . STarEs O, u~rEo ~rES ~ CO~*E~ mOT ~ PiPE ~ co~ ~ rgETi GRAPHIC SCALE SHEceT 2 of 2 ~,efl~E EASEYENT x x\ \ \ \ \ LWE c~,~er J , tlt$~' ..... E"I ~'~,.~ I ~___~ [~ rO ~ ME~'~ ~E Ig BASED O~ vl~ma ~ATE P~E ~E ~E~ ~H Z~E N~ ~3/~ ~R~NJ~E V~UE5 ~E EXPRESSED W I~ERN~ FE~ ~E F~ E~ ~ THE SUBJECT P~PE~ 15 ~FECTEO ~ Vl~t~a ~ER E~ME~S I~H ~ ~ ~P~YlM~E~ tv r~EIR L~aT~S REFERE~ED I~ OB ~ ~ ~ U~M ~ 55 MD OB ~ ~ 321 TH'q PLJT ~PE~E~ TH~ PLaT ~O I~ T~ ~F~E ~ CLERK ~ THE CI~ ~ o~ THE ~ OF Vt~lWl~ BEtH VI~I~IA ~ M~ ~ ~ AT P~E 72 TH~ ~ H~ BEEn R~ISED w~l~,~ t~ c~ s ~rcE OF T~E c~ ~ ~ tHE ~ ~ vl~l~ ~ Vl~W~ ~'4 SO FT · 2D356'7 ACRES SO FT ; 051178 ACRES /_ sorT. o~,~ AC~s - c ~e~ 'so rr . ozrr~s~ ACRes ") ~ so rr · s~ ACRES ~e~' /e. ms. ors so rr · ~J~ ACRes AJ~E~ . ioo ACRES D B I95 PG 78 (TRACT THREEI LEGEND ~ CC~wER r~or 5E7) --o-.- PW ~ pl~ tN PiPE LILI~E (5~E CH~T) (SEE ~ERL~ EXHIBIT "A" EXHIBIT "B" EXEMPTION CLAIMED §58 1-81 l(a) (3) All correspondence relatmg to this document should refer to Identlficataon No 11011-N00281-0006 Tius tnstrument was prepared by the Atlanttc Dtvtston, Naval Factlittes Engmeenng Command, 1510 Gilbert Street, Norfolk, VA 2351 ! -5699 Return to Danuen X Walsh, ESQ Office of Counsel, at the above address DEED OF BOUNDARY SETTLEMENT THIS DEED OF BOUNDARY SETTLEMENT, made and entered into this ,,n°~ day of .,7-t~t~ ,2002, by and between the UNITED STATES OF AMERICA, acting by and througl~ the DEPARTMENT OF THE NAVY, represented by the Commander, Atlantic Division, Naval Facilities Engineenng Command, hereinafter called the "UNITED STATES", whose address is 1510 Gilbert Street, Norfolk, Virginia 23511-2699; and the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, hereinafter called the "CITY", whose address is Municipal Center, Virginia Beach, Virginia 23456. Each of the parties to this document shall be indexed as a "Grantor" and a "Grantee". WITNESSETH: WHEREAS, the UNITED STATES and the CITY are the owners of adjoining parcels of land designated as "NOW OR FORMERLY UNITED STATES OF AMERICA DAM NECK AMPHIBIOUS BASE UNITED STATES NAVY - GPIN 2425-39-2661" AND "COMMONWEALTH OF VIRGINIA D.B. 195 PG. 178 M.B. 2 PG.27 M.B. 109 PG.46 - GPIN 2425-09-5570" on that certain plat entitled: "AMENDED PLAT SHOWING PROPERTY TO BE CONVEYED TO THE CITY OF VIRGINIA BEACH FROM COMMONWEALTH OF VIRGINIA, VIRGINIA BEACH, VIRGINIA", Scale: 1" = 200', dated August 30, 2001, prepared by Survey Bureau, Engineering Division, Department of Public Works, City of Virginia Beach, Virginia, duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 302, at pages 58 and 59, hereinafter called the "PLAT"; and WHEREAS, there exists some question as to the correct boundary line between the lands of the parties, specifically with those areas designated on the PLAT as "AREA 'E'" and "AREA '1::'". and WHEREAS, it is the desire of the parties hereto to definitively fix and establish the boundary line between their said properties; NOW, THEREFORE, in consideration of the premises herein contained, the receipt and sufficiency of which are hereby acknowledged, the UNITED STATES and the CITY do hereby agree that the true and correct boundary line between their respective lands shall be that certain boundary line, hereinafter called the "BOUNDARY LINE", which is shown on the PLAT and described as follows: GPIN 2425-39-2661 & 2425-09-5570 BEGINNING at a point which is the northeast comer of the property of the CITY designated on the PLAT as "Area 'A'", thence running S 19° 06' 10" W a d~stance of 404.03 feet to a concrete monument; thence running S 19° 06' 10" W a d~stance of 1,035.13 feet to a pin; thence running S 20° 28' 03" W a distance of 466.51 feet to a concrete monument; thence running S 16° 15' 36" E a distance of 83.74 feet to a p~n. The UNITED STATES and the CITY, by the acceptance of this DEED, do covenant and agree to the provisions specihed below: 1. The UNITED STATES does hereby release, remise and forever quitclaim unto the CITY, its successors and assigns, all of the right, title and interest of the UNITED STATES m and to the land lying on the west side of the BOUNDARY LINE, specifically including, but not hmited to, "AREA 'E'" and "AREA 'F'" as shown on the PLAT. AREA 'E' and AREA 'F' are more pamcularly described w~th reference to the PLAT as follows. AREA 'E' COMMENCING at a point which is the northeast comer of the property of the CITY designated on the PLAT as "Area 'A'", thence running S 19° 06' 10" W a d~stance of 404.03 feet to a concrete monument; thence running S 19° 06' 10" W a d~stance of 1,035.13 feet to a pin; thence running S 20° 28' 03" W a distance of 466.51 feet to a concrete monument which is the true POINT OF BEGINNING; thence running S 16° 15' 36" E a distance of 83.74 feet to a pin; thence running S 56° 52' 00" W a distance of 84.39 feet to a pipe; thence running N 20° 28' 03" E a distance of 135.04 feet to the POINT OF BEGINNING. AREA 'F' COMMENCING at a point which is the northeast comer of the property of the CITY designated on the PLAT as "Area 'A'", thence running S 19° 06' 10" W a d~stance of 404.03 feet to a concrete monument which Is the true POINT OF BEGINNING; thence runmng S 19° 06' 10" W a distance of 1,035 13 feet to a pin; thence running S 20° 28' 03" W a distance of 466.51 feet to a concrete monument; thence running N 16° 15' 36" W a distance of 344.83 feet to a p~n; thence running N 23° 27' 05" E a d~stance of 510.70 feet to a p~n; thence runmng N 23° 57' 42" E a distance of 627.28 feet to a pin; thence running N 73° 11' 42" E a d~stance of 146.71 feet to the POINT OF BEGINNING. 2. The CITY does hereby release, remise and forever quitclaim unto the UNITED STATES, its successors and assigns, all of the right, title and interest of the CITY in and to the land lying on the east side of the BOUNDARY LINE. IN WITNESS WHEREOF, the undersigned have signed and sealed these presents or caused these presents to be executed by their respective duly authorized officers and their seals to be affixed hereto as of the date first above written. UNITED STATES OF AMERICA [SEAL] ATTEST: By: 0- rm c Realty Specialist "~ Claimant Branch Real Estate Division Real Estatc Contracting Officer CITY OF VIRGINIA BEACH By: (SEAL) Name: City Manager/Desi gnee of City Manager City Clerk APPROVED AS TO FORM CITY ATTORNEY ACCEPTED ON BEHALF OF THE CITY OF VIRGINIA BEACH CITY REAL ESTATE AGENT COMMO~ALTH OF VIRGINIA CITY OF ./Vt0_~/q:)~d_ , to-wit: The foregoing instrument was acknowledged before me th~s ~ay of July, 2002, by Juhe C. Barnes as Real Estate Contracting Officer, on behalf of the United States of America, Department of the Navy. ~ary Pubi~c / My Comm,ssion Exp,res:3t~~_ s,,~/(/-'~ COMMONWEALTH OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me th~s day of ,2002, by , as C~ty Manager/Designee of C~ty Manager of the City of V~rginia Beach, Virg~ma. [AFFIX SEAL] Notary Public My Commission Expires: COMMONWEALTH OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me th~s day of ,2002, by , as C~ty Clerk of the C~ty of V~rg~ma Beach, Virginia. [AFFiX SEAL] Notary Public My Commission Expires: Item VI-H. 6. - 32 - ORDINANCES/RES OL UTIONS ITEM # 50108 Reverend Rtchard Mosley, expressed apprectatton to the City Councd Upon motton by Vtce Mayor Man&go, seconded by Counctl Lady Eure, Ctty Counctl ADOPTED Ordtnance to TRANSFER $300, O00 from vartous Storm Water Capttal ProJects to Capital ProJect #7-012, to extend the ptped drainage system tn Fair Meadows Vottng 11-0 (By ConsenO Counctl Members Vottng Aye Margaret L Eure, Louts R Jones, Reba S McClanan, Richard A Maddox, Vice Mayor Robert C Man&go, Jr, Mayor Meyera E. Oberndorf Jtm Reeve, Peter W Schmtdt, Ron A Vtllanueva, Rosemary Wtlson and James L Wood Councd Members Vottng Nay None Counctl Members Absent None September 3, 2002 AN ORDINANCE TO TRANSFER $300,000 FROM VARIOUS STORM WATER CAPITAL PROJECTS TO CAPITAL PROJECT #7-012, FAIR MEADOWS DRAINAGE, TO EXTEND THE PIPED DRAINAGE SYSTEM IN FAIR MEADOWS 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 WHEREAS, $300,000 from various existing storm water capital projects is available to be transferred into capital project #7-012, Fair Meadows Drainage, to extend the piped drainage system in the Fair Meadows neighborhood. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA- 1. That $300,000 is hereby transferred from the capital projects and in the amounts as set forth below to Capital Project #7-012, Fair Meadows Drainage, to extend the piped drainage system in Fair Meadows; 2. That the $300,000 to be transferred shall come from the projects set forth below- (1) $50,000 from #7-018, Lake James; (2) $100,000 from #7-114 Princess Anne Plaza Drainage, Phase II; (3) $75,000 from #7-144, Sandbridge Drainage Improvements; and (4) $75,000 from #7-181, Pocahontas Village. Adopted by the Council of the City of Virginia Beach, Virginia, on the 3r~ _ day of September , 2002. CA8590 ordin/noncode/SWU-Fair Meadows.ord.wpd R2 August 19, 2002 APPROVED AS TO LEGAL SUFFICIENCY' City Attorney's Off~'ce APPROVED AS TO CONTENT' Management -Ser~~ Item VI-H. 7. - 33 - ORDINANCES/RES OL UTIONS ITEM # 50109 Upon motton by Vtce Mayor Mandtgo, seconded by Counctl Lady Eure, Ctty Counctl ADOPTED Resolutton APPROVING tssuance of Multtfamily Houstng Bonds tn behalf of CP Atlantic, L.P. for a proJect located at 999 Atlantts Drive (Atlantis Apartments) Voting 11-0 (By ConsenO Counctl Members Vottng Aye Margaret L Eure, Louts R Jones, Reba S McClanan, Rtchard A Maddox, Vtce Mayor Robert C Man&go, Jr, Mayor Meyera E Oberndorf, Jtm Reeve, Peter W. Schmtdt, Ron A Vdlanueva, Rosemary Wtlson and James L Wood Counctl Members Vottng Nay None Counctl Members Absent None September 3, 2002 VIRGINIA V~rglma Beach Development Authority One Columbu~ Cente~ State 300 V~rgmla Beach. VA 23462 (757) 437-6464 FAX (757) 499-9894 July 16, 2002 The Honorable Meyera E. Oberndorf, Mayor Members of City Council Municipal Center Virginia Beach, VA 23456 Re: Atlantis Apartments Project Dear Mayor Obemdorf and Members of City Council: We submit the following in connection with project Atlantis Apartments ProJect located at 999 Atlantis Drive in the City of Virginia Beach, Virginia. (1) Evidence of publication of the notice of hearing is attached as Exhibit ,4, and a summary of the statements made at the public hearing is attached as Exhibit B. The City of Virginia Beach Development Authority's (the "Authority") resolution recommending Council's approval is attached as Exhibit C. (2) The Disclosure Statement is attached as Exhibit D (3) The statement of the Authority's reasons for its approval as a benefit for the City of Virginia Beach and its recommendation that City Council approve the modification of the bonds described above is attached as Exhibit E. (4) The Fiscal Impact Statement is attached as Exhibit F. The Honorable Meyera E. Obemdorf, Mayor Members of City Council July 16, 2002 Page 2 (5) Attached as Exhibit G is a summary sheet setting forth the type of issue, and identlfy~ng the Project and the principals. (6) Attached as Exhibit H is a letter from the appropriate C~ty department commenting on the Project. RGJ/GLF/rab Enclosures Very truly yours, 8eau_hfui SL_ re,serve _ _~o~s~_Lndg StreetsPlus Dr~ 0 mi 02 O4 06 LOCATION MAP ATLANTIS APARTMENTS Copynghl O 1988 199~ Microsoft Corporation In&or Ira luppltorl A1 fl~hla reserved PlO! 1 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA APPROVING THE ISSUANCE OF MULTIFAMILY HOUSING BONDS WHEREAS, the Clty of Virginia Beach Development Authority (the "Authority"), has considered the apphcat~on of CP Atlantic, L.P. (the "Borrower") for the ~ssuance of the Authonty's mult~famfly housing revenue bonds In an amount not to exceed $12,000,000 (the "Bonds") to assist ~n the financing of the Company's acquisition, renovation and eqmppmg of a 208 umt mult~famlly housing project (all improvements and land being collectively referred to as the "Project") located at 999 Atlantis Drive, V~rg~ma Beach, Virginia, and held a public hearing on July 16, 2002; and WHEREAS, the Authority has requested the C~ty Council (the "Council") of V~rg~nla Beach, V~rg~nla (the "City"), to approve the ~ssuance of the Bonds to comply w~th Section 147(f) of the Internal Revenue Code of 1986, as amended (the "Internal Revenue Code") and Section 15.2-4906 of the Code of V~rg~nia of 1950, as amended (the "Virg~ma Code"); and WHEREAS, pursuant to Section 15 1-1378.1, Code of V~rg~ma, 1950, as amended, a copy of the Authonty's resolution approving the issuance of the Bonds, subject to terms to be agreed upon, and a reasonably detailed summary of the comments expressed at the pubhc heanng, ~f any, have been filed with the C~ty Council of the City of V~rg~nia Beach, Vlrglma; BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: 1 The Council of the C~ty of V~rg~nia Beach, Virginia, approves the ~ssuance of the Bonds by the C~ty of Virginia Beach Development Authority, ~n a pnnc~pal amount not to exceed $12,000,000 for financing the acquisition, renovation and equipping of a multlfamfly housing project located at 999 Atlantis Drive, Virginia Beach, Virginia for the benefit of CP Atlantic, L.P to the extent required by Section 147(0 of the Intemal Revenue Code and Secbon 15 2-4906 of the V~rg~ma Code, to permit the Authority to assist ~n the financing of the ProJect 2 The approval of the ~ssuance of the Bonds, as reqmred by the Internal Revenue Code and the V~rg~ma Code, does not constitute an endorsement of the Bonds or the creditworthiness of the Borrower; but, pursuant to Chapter 643, V~rg~ma Acts of Assembly of 1964, as amended, the Bonds shall provide that neither the City nor the Authority shall be obhgated to pay the Bond or the interest thereon or other costs ~nmdent thereto except from the revenues and moneys pledged therefore, and neither the faith or credit nor the taxing power of the Commonwealth, the C~ty or the Authority shall be pledged thereto 3 In approving the Resolution, the C~ty of V~rg~ma Beach, ~nclud~ng ~ts elected representatives, officers, employees and agents, shall not be hable and hereby d~sclmms all habfl~ty for any damages to any person, d~rect or consequentml, resulting from (1)the Authorlty's fmlure to ~ssue bonds for the ProJect for any reason, Including but not limited to any decision by the Authority ~n ~ts sole discretion to allocate its allowable private act~wty bond hm~t to one or more other projects, or (2)the Authonty's failure for any reason after the ~ssuance of the Bonds for the ProJect to allocate any further port~on of ~ts allowable private activity bond limit to the ProJect if the ~ssuance of tax-exempt bonds by the Authority ~s restricted by any State or Federal statute now or hereafter enacted 4 Th~s Resolution shall take effect ~mmed~ately upon ~ts adopbon Adopted by a majority of a quorum of the Council of the C~ty of V~rg~ma Beach, Vlrglma, on September x~ --3,2002. I certify the foregmng to be a tree and correct copy of a resolution adopted by the C~ty Council of the C,ty of V,rg~nla Beach, V~rg,ma, at a regular meeting held on~il~m~1502 Clerk APPROVED AS LEGAL SUFFICIENCY EXHIBIT A NOTICE OF PUBLIC HEARING ON PROPOSED MUL~I'IFAMILY HOUSING BOND FINANCING OF THE CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY Notice ~s hereby given that the C~ty of Virginia Beach Development Authority (the "Authority") will hold a public hearing on the revised apphcahor~ of CP Atlantic, L P. (the "Borrower") the address of which ~s c/o Century Pacific Eqmty Corporatxon, O P., 1925 Century Park East, Suite 1.900, Los Angeles, Cahfom~a 90067 for the Authority to issue, pursuant to Chapter 643 of the Vu'gm~a Acts of Assembly of I964 as amended (thc "Act"), up to $12,000,000 of ~ts multffamfly housing revenue bonds (the "Bonds") to assist the Borrower m the acqms~tton, rehabilitation and eqmppmg of a 208 umt mult~famfiy housing project located at 999 Atlanns Drive m Virginia Beach~.V~rgima (the "Project"). The pubhc heanng, which may be contanued or ad.~ourned, will be held at ~:3°o'clock~m on July 16, 2002, before the Authority, at the Authonty's office, One Columbus Center, State 300, V~rgmia Beach, V~rgmm As required by the Act, the Bonds will not pledge the cre&t or the taxing power of the C~ty of V~rgmm Beach, Virgmm, or the Authority but will be payable solely from revenues derived from the Borrower and pledges therefore Any person interested in the ~ssuance of thc Bonds or the locatmn or nature of the proposed project may appear and be heard. A copy of the Company's apphcatmn ~s on file and ~s open for mspectton at the Authonty's office at One Columbus Center, Suite 300, Vxrgm~a Beach, Vngtma, during business hours. The public hemng is bcmg held pursuant to the requirements of Section 147(0 of the Internal Revenue Code of 1986, as amended regarding the pubhc approval pre-reqms~le to the exclusmn from gross ~ncome for federal income taxatmn purposes of interest on the Bonds and Section 15 14906 of the V~rgm~a Code of 1950, as amended Any person interested ~n the ~ssuance of the Bonds or the Project may appear and be heard. EXHIBIT A TH~ VIRGINIAN-PILOT NORFOLK, VIRGINIA A~FIDAVIT OF PUBLICATION The v~rgxnian-Pilot RITTER EIC~I~ER & NORRIS PLLC 1225 19TH STREET, N.W., 7 WASHINGTON DC 20036 REFERENCE: 10228144 7974~30 NOTICg OF PUBDIC MEA State of Virginxa City of Norfolk This day. D Johnson personally appeared before me and after being duly sworn, made oath that' 1) She le a£fldavlt clerk of The vtrgtnlan-P~[ot, a newspaper published by Landmark Communications lnc , in the cities of Norfolk, Portsmouth, Chesapeake, Suffolk. and Virginia Beach, Common- wealth of virginia and In the etmte of North Carolina 2;That the advertisement hereto annexed has been published in said new~pa9er on the date stated. MUL~FaMILY N~t~dN~ {IOND mve.~ ~o~s ha ~00' ~ ~ { l VI , uvu~-,,i,, ,,- ne e~on at the Au o~ 's a; -- tloD A47{0 ~ (he ~{e~e) ~nue CoBe o~ lgNB as ~end~ 8~r and be hM~ Y J VP July t ~/ut~ & 3002 Tg?~ J / P~LISHED ON. 07/01 TOT~ COST. 473.76 ~ SPACe' 72 LINE F~LED ON. 07/1~._~~ _-_..~ .......... .. .... Legal AfEiant. su nd .~[n to fore-~zn~ ¢it¥ and stale on the day and year Nota{y' ~.~,,~~~.. ~_)~__~~ion expires Janua~ 31, 2004 Oommiss%on E, :pi{es JanuaTY 31, ZOO4 EXHIBIT B City of Virginia Beach Development Authority Record of Public Hearing on July 16, 2002 (Atlantis Apartments Project) The chmrman of the City of Vlrgama Beach Development Authority (the "Authority") announced the commencement of a public hearing on the request of CP Atlantis LP (the "Borrower"), and that a not~ce of the hearing was pubhshed once a week for two consecutive weeks m the Virginian Pilot, a newspaper having general circulation in the City of V~rglnla Beach, V~rgm~a Such public hearing was held not less than slx days and not more than 21 days after the second notice appeared m such newspaper A copy of the not,ce and certificate of pubhcatlon of such not~ce have been filed w~th the records of the C~ty Council of the City of Vlrglma Beach. The following individuals appeared and addressed the Authority at such pubhc hearing Richard A. Elchner, an attorney with Ratter Eachner & Norris PLLC and Beverly Williams, current site manager of the Project, appeared on behalf of the Borrower Mr. Elchner gave a brief description of the proposed financing and explained that the proposed issuance of the bonds (the "Bonds") would be used to assist the Borrower m financing the acqms~t~on and renovation of Atlantis Apartments ~n the City of Vlrg~ma Beach and that the tax exempt portion was necessary to obtain s~gmficant Iow income housing tax credits under Section 42 of the Code Ms Wllhams d~scussed the need for renovations at the Project and dascussed some of the resident programs, and successes, at the Project Th~s approval is being requested at this time and is required by the Internal Revenue Code Mr E~chner further outhned certain benefits lnunng to the City of V~rg~ma Beach and ~ts c~t~zens including the nonrecourse nature of the financang and the amount of the proposed rehablhtatlon In addition, Mr E~chner and Authority staff pointed out that the enhancement of Atlantis Apartments will assist the C~ty m attracting and retalmng business and industry as quahty rental housing opportumt~es for low and moderate income persons are an important criterion to businesses when considering whether to relocate or to stay In a particular locahty. No other persons appeared to address the Authority, and the chairman closed the public heanng The Authority hereby recommends that the City Council of the City of V~rg~ma Beach, V~rglma approve the issuance of the proposed financing and hereby transmits the F~scal Impact Statement to the C~ty Council of the C~ty of Varglma Beach and asks that th~s recommendation be received at ~ts next regular or specaal meeting at which this matter can be properly placed on the Council's agenda for heanng EXHIBIT C RESOLUTION OF TIlE CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY AUTHORIZING THE ISSUANCE OF MULTIFAMILY HOUSING REVENUE BONDS (ATLANTIS APARTMENTS) SERIES 2002 WHEREAS, the C~ty of V~rg~ma Beach Development Authority (the "Authority") ~s a poht~cal subdivision of the Commonwealth of V~rg~ma (the "Commonwealth"), duly created pursuant to Chapter 643 of the V~rg~ma Acts of Assembly of 1964, as amended (the "Act"), and WHEREAS, pursuant to the Act, CP Atlantic, L P., a California hm~ted partnership (the "Borrower"), has requested that the Authority ~ssue ~ts taxable and tax-exempt Mult~famfly Housing Revenue Bonds (Atlantis Apartments) Series 2002 to finance the acqms~t~on, construction and eqmpp~ng of a 208-umt apartment development (the "ProJect") located on an apprommately 14 acre parcel of land located at 999 Atlantis Drive, Vlrg~ma Beach, V~rg~ma and occupied m part (at least 40%) by persons of low or moderate ~ncome ~n order for the ProJect to quahfy as a "quahfied residential rental project" w~thm the meamng of Section 142(d) of the Code (hereinafter defined); and, the Borrower has requested that the Authority ~ssue ~ts bonds (the "Bonds") and make a loan of the proceeds thereof to the Borrower for the purpose of malong funds available to acqmre and rehabilitate the ProJect, and WHEREAS, the Authority has found and determined that (a)there ~s a s~gmficant shortage of affordable, samtary and safe residential rental property ~n the C~ty of V~rg~ma Beach, V~rgm~a (the "C~ty") for ~nd~wduals and families of low and moderate ~ncome and (b) the msuance of the Bonds, the financing of the ProJect and the acqms~t~on, construction, and eqmpp~ng of the ProJect by the Borrower will benefit the ~nhab~tants of the C~ty through the promotion of their safety, health, welfare, convemence or prosperity, and will be consistent w~th the general purposes of the Authority and the Act, and WHEREAS, the City has not activated a housing authority pursuant to §§ 36-4 and 36-4 1 of the Code of V~rg~ma of 1950, as amended; and WHEREAS, w~th respect to such proposed plan of financing, the Authority has caused a not~ce of pubhc heanng to be pubhshed ~n the V~rg~man-Pflot, a newspaper of general c~rculat~on ~n the C~ty of V~rg~ma Beach, V~rg~ma, and has th~s date held a pubhc heanng, all ~n accordance w~th the proms~ons of § 147(0(2) of the Internal Revenue Code of 1986, as amended, and the regulations, ruhngs and proclamations promulgated or proposed thereunder (collectively, the "Code"), and § 15.1-1378 and § 15 2-4906, Code of V~rg~ma, 1950, as amended, and other apphcable laws of the Commonwealth NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY: 1 The Authority hereby agrees to assist the Borrower to finance the acqms~t~on, rehabilitation and eqmpp~ng of the ProJect and, ~n particular, to undertake the ~ssuance of the Bonds ~n an amount not to exceed $12,000,000 upon the terms and conditions to be mutually agreed upon between the Authority and the Borrower, and to loan the proceeds of such Bonds (the "Loan") to the Borrower for the purpose of financing the ProJect The Loan will be made to the Borrower pursuant to a loan agreement or a financing agreement. The Bonds will be ~ssued and secured pursuant to an ~ndenture of trust or s~mfiar document whmh will promde for the precise pnnmpal amount of the Bonds, the maturity schedule therefor, the ~nterest rate or rates the Bonds will bear and the denomination, form and other terms of the Bonds, and will secure the Bonds by an assignment of all the Authonty's rights to the Loan, together w~th the proceeds thereof, and the security therefor. The Bonds will be hm~ted obhgat~ons of the Authority payable solely from the revenues pledged thereto pursuant to the ~ndenture. 2 The Authority hereby authorizes the use and d~strlbutlon of a prehmlnary official statement prior to the adoption by the Authority of a final bond resoluuon with respect to the Bonds, m such form as shall be approved by the Chair w~th the advice of counsel to the Authority 3 It hawng been represented to the Authority by the Borrower that it Is necessary to proceed ~mmed~ately w~th the financing of the Project, the Authority hereby agrees that the Borrower may proceed with plans for such financing, enter ~nto contracts for such financing of the Project and take such other steps as ~t deems appropriate ~n connection therewith, prowded that nothing herein shall be deemed to authorize the Borrower to obligate the Authority in any manner whatsoever, ~nclud~ng the payment of money or the performance of any acts ~n connection with the Project The Authority agrees that the Borrower may be reimbursed from the proceeds made available from the Issuance of the Bonds for all costs ~ncurred by ~t after the effective date of this ~nducement resolution m connection with the financing of the acquisition, rehabfl~tation and eqmpp~ng of the Project only to the extent permitted under Section 103 of the Code and the Act. 4 The Authority hereby agrees to the Borrower's des~gnation of the firm of Rltter Elchner & Norris PLLC, Washington, D.C., as Bond Counsel ("Bond Counsel") and hereby appoints such firm to supervise the proceedings and approve the issuance of the Bonds 5 All costs and expenses in connection w~th the financing of the acquisition, rehablhtat~on and equipping of the Project, including fees and expenses of Bond Counsel, Counsel to the Authority and the Authority, shall be pa~d at the direction of the Borrower from the proceeds made available from the issuance of the Bonds or from other funds of the Borrower. If for any reason the Bonds are not issued, it ~s understood that all such fees and expenses shall be paid by the Borrower and that the Authority shall have no responsibility therefor. 6 In adopting th~s ~nducement resolution authorizing the ~ssuance of the Bonds, the Authority declares ~ts official ~ntent to ~ssue the Bonds and prowde moneys to reimburse the Borrower for ~ts expenditures w~th respect to the Project, as contemplated by Treasury Regulations 1 150-2 promulgated pursuant to the Internal Revenue Code of 1986, as amended 7. The Authority shall perform such other acts and adopt such further proceedings as may be required to ~mplement its undertakings as herein set forth. Prior to the issuance and delivery of the Bonds, there shall be submitted to the Authority for its approval a Bond Resolution approving (a) the ~ssuance of the Bonds, and (b) such other documents as may be necessary m the oplmon of Bond Counsel to complete the transaction, prowded such documents are acceptable to counsel to the Authority 8 The Authority hereby recommends that the City Council of the City of Virglma Beach, Vlrglma approve the issuance of the Bonds and d~rects the Chair of the Authority to transmit the Fiscal Impact Statement and a copy of this Resolution to the C~ty Council of the City of Vlrglma Beach 9. The proper representative of the Authority is hereby authorized and directed to transmit this recommendation to the City Council of the C~ty of Virginia Beach at its next available regular meeting at which an approval resolution can be properly placed on the Council's agenda for consideration . 10. The proper representative of the Authority is hereby authorized and directed to execute and deliver to the V~rglnla Small Bus~ness F~nanc~ng Authority an apphcatlon for the allocation of volume cap for tax exempt bonds to satisfy the requirements of Section 146(0 of the Code 11. This Resolution shall take effect immediately upon its adoption. If the Bonds are not ~ssued w~thln one (1) year of the date of adoption of th~s Resolution, this Resolution shall be void and of no further effect. 12 The Authority hereby agrees, ~f requested, to accept the recommendation of the Borrower with respect to the appointment of an agent or underwriter for the sale of Bonds or a purchaser of the Bonds ~n a private placement pursuant to terms to be mutually agreed upon. ADOPTED: July 16, 2002 CERTIFICATE of VOTES Record of the roll call vote by the Oty of V~rglma Beach Development Authority, upon reading on a resolution titled "RESOLUTION OF THE CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY AUTHORIZING THE ISSUANCE OF MULTIFAMILY HOUSING REVENUE BONDS (ATLANTIS APARTMENTS) SERIES 2002", taken at a regular meeting of the Authority held on July 16, 2002, after pubhc notice thereof for such meeting AYE NAY ABSTAIN ABSENT ennet:hD. Bar~l;oo~ X Ro~rt - Jone~ X Page G. Lea X Ro~rt E. Fentr~ ss X Dated. July 16, 2002 ISEAL) ATTEST Beach Development The undersigned Secretary of the C~ty of Vlrglma Beach Development Authority hereby certifies that the foregoing Is a true, correct, and complete copy of a Resolution adopted by the Authorlty's commissioners present and voting at a meeting duly called and held on July 16, 2002, In accordance with law, and that such Resolution has not been repealed, revoked, rescinded, or amended, but IS In full force and effect as of the date hereof. WITNESS my hand and the seal of the Authority this 16th day of July, 2002. CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY Secretary EXHIBIT D ,~ DISCLOSURE STATEMENT Applicant's Name(s): CP ATLANTIC, L.P. All Owners (/f different from applicant): Date: Jtme 7, 2002 Type of Application: Rezomng: From Conditional Use Permit: Street Closure: Subdivision Variance: Other: Bond Issue to The following is to be completed by or for the Applicant: 1. If the applicant is a CORPORATION, list all the officers of the Corporation: 2. If the applicant is a PARTNERSHIP, FIRM or other Unincorporated Organization, list all members or partners m the organization: Century Pacific Equity Corporation, general partner Irwin Jay Deutch, limited parmer (a corporate tax credit investor will be substituted for Mr. Deutch at closing) The following is completed by or for the Owner (if different from the appiicanO 1. If the applicant is a CORPORATION, list all the officers of the Corporation: 2. If the applicant is a PARTNERSHIP, FIRM or other Unincorporated Orgamzat~on, list all members or partners in the organization: CP ATLANTIC, L.P. By: Charles L. Schwenn~sen Executive Vice President Century Pacific Equity Corporation, G.P. of Pnncipal User CP ATLANTIC, L.P. Note to Financial Statements 1. Organization: CP Atlantic, L.P. is to be formed os a California limited partnership for the purpose of acquiring and renovating 208 units of affordable muItifamily housing commonly known as Atlantis Apartments located in Virginia Beach, VA. The General Partner of CP Atlantic, L.P. is Century Pacific Equity Corporation. The financing is expected to be provided by tax-exempt bonds and proceeds from the sale of Federal housing tax credits. VIRGINIA V~gm~a Beach l)cvelopmcnt Autho~ fly One Colunlbu~ Center. State 300 V~rg~ma Beach VA 23462 ¢7~,7) 4'~7-6464 FAX (7q;7~ 499-9894 EXHIBIT E CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY UP TO $12,000,000 MULTIFAMILY MORTGAGE REVENUE BONDS MULTIFAMILY HOUSING REVENUE BONDS (ATLANTIS APARTMENTS) SERIES 2002 The Authority recommends approval of this financing The proceeds of the Bonds to be issued will be used to assist the Borrower, CP Atlantis, L P., m acquiring and rehabilitating the Atlantis Apartments, a 208 unit apartment building at 999 Atlantis Drive in Virginia Beach The use of $7,500,000 of tax exempt bonds (the remainder wall be federally taxable) wall allow the Borrower to obtain substantial equity through the sale of low income housing tax credits under Section 42 of the Code The benefits of mmntenance of affordable housing m the City of Virginia Beach along with the capital Investment, construction payroll, and creation and retalnage of jobs constitutes the basis for this recommendation. The financing wall enhance a sagmficant rental housing asset within the City where low and moderate income employees can live and assist the City in attracting and retaining business and Industry. EXHIBIT F FISCAL IMPACT ST4TEMENT DATE: TO PROJECT NAME: TYPE OF FACILITY: . . June 7, 2002 THE CITY COUNCIL OF VIRGINIA BEACIt, VIRGINIA ATLANTIS APARTMENTS 208 Units of affordable multifamily housing Maximum amount of financing sought Estimated taxable value of the facility's real property to be constructed in the municipality (post renovation) Emmated real property tax per year using present tax rates Emmated personal property tax per year using present tax rates Estimated merchant's capital (business license) tax per year using present tax rates Estimated dollar value per year of goods and services that will be purchased locally Emmated number of regular employees on year round basis (full timers) 8 Average annual salary per employee $19,400 (full timers) $12,000,000 ($7,500,000 - Tax Exempt) $9,360,000 ($45,000 unit) $114,000 $555 $345 $314,500 The information contained in this Statement is based solely on facts and estimates provided by the Applicant, and the Authority has made no independent investigation w~th respect thereto. City of Virgima Beach Devefl~ ~ment Authority By: , - . EXHIBIT G SUMMARY SHEET CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY INDUSTRIAL DEVELOPMENT REVENUE BONDS PROJECT NAME: ATLANTIS APARTMENTS LOCATION: 999 ATLANTIS DRIVE DESCRIPTION OF PROJECT: 208 units of affordable mulUfamd¥ housmg AMOUNT OF BOND ISSUE: PRINCIPALS: $12,000,000 ($7,500,000 - Tax lgxo_mpe) Irwin Jay Deutch ZONING CLASSIFICATION: a. Present zoning classification of the Property b. Is rezoning proposed7 c. If so, to what zoning classification? Yes A- 18 (Apartment D~stnct) No X NOTE: THIS DOCUMENT MUST BE ON 8-1/2 X 14 INCH PLAIN BOND PAPER. EXHIBIT H City of Virginia Beach DEPARTMENT OF HOUSING AND NEIGHBORHOOD PRESERVATION (757) 426 5750 FAX (757) 426 5766 TDD (757) 426 5794 CODE ENFORCEMENT DIVISION (757) 427 4421 July 10, 2002 MUNICIPAL CENTER BUILDING 18A 2424 COURTHOUSE DRIVE VIRGINIA BEACH VA 23456-9083 Chairman, Virginia Beach, Development Authority One Columbus Center, Suite 300 Virginia Beach, VA 23462 FAX//499-9894 Gary Fentress, Esq. Office of the City Attorney Municipal Center FAX//563-1167 RE: Evaluation of Public Benefit Atlantis Apartments Project Multi-Family Rental Housing Bond Application 206 units low income housing VBDA Agenda July 16, 2002 I have reviewed the information provided regarding the above referenced project. In my opinion a publm benefit is achieved by the rehabilitation of these housing units by providing decent, safe and affordable housing for low income households. We have been advised by the applicant that 40% of the units will be occupied by persons having an ~ncome of 60% of area median income or less. The rent for these units will be restricted to no more than 30% of 60% of area median income as adjusted for family size, thus meeting the definition for housing affordablity. Please let me know if you need anything further regarding this issue Thank you. Item VI-H. 8. - 34- ORDINANCES/RES OL UTIONS ITEM # 50110 ADD-ON Upon motton by Vtce Mayor Man&go, seconded by Councd Lady Eure, Ctty Council ADOPTED Resolutton re tntent not to prosecute an appeal of the Circutt Court's dectston tn case re prospecttve lease of Ntmmo Parkway (Ferrell Parkway) but to defend the Ctty's interest re legal fees Vottng 10-0 (By ConsenO Counctl Members Vottng Aye Margaret L Eure, Louts R Jones, Reba S McClanan, Rtchard A Maddox, Vtce Mayor Robert C Man&go, Jr, Mayor Meyera E Oberndorf Peter W Schmtdt, Ron A Vtllanueva, Rosemary Wtlson and James L Wood Council Members Vottng Nay None Counctl Members Abstatntng Jtm Reeve Counctl Members Absent None Counctlman Reeve DISCLOSED and ABSTAINED re Item 8 (ADD-ON) Nimmmo Parkway, as he ts a member of Frtends of Ferrell Parkway and has not taken part tn the Closed Session discusstons regar&ng Frtends of Ferrell Parkway L L C and Andrea Ktlmer v the Ctty of Vtrgtnta Beach, et al Councdman Jones DISCLOSED re Item 8 (ADD-ON) Nimmo Parkway. He has an ownership tnterest tn Resource Bank whtch exceeds 3% of the asset value of the bank Resource Bank holds a note on the Lotus Creek property The Lotus Creek property has now been eltmtnated from thts tssue and the Ctty Attorney advtses Counctlman Jones has the rtght to vote on thts tssue September 3, 2002 A RESOLUTION STATING THE INTENTION OF THE CITY COUNCIL NOT TO PROSECUTE AN APPEAL OF THE CIRCUIT COURT'S DECISION IN A CASE INVOLVING THE PROSPECTIVE LEASE OF A PORTION OF NIMMO PARKWAY 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 WHEREAS, the City is the owner of 15.7 acres of land previously acquired for right-of-way for the extension of Nimmo Parkway, formerly known as Ferrell Parkway, east of Atwoodtown Road to Sandbridge Road (the "Nimmo Parkway Property"); and WHEREAS, the City entered into an Agreement with the United States Fish and Wildlife Service (the "USFWS") whereby the City would lease the Nimmo Parkway Property to the USFWS; and WHEREAS, the primary purpose of the City's leasing the Nimmo Parkway Property was to ensure that there would be a means to protect and preserve certain environmentally sensitive areas from the adverse effects of development of the Lotus Creek Property and from the construction of Nimmo Parkway east of Atwoodtown Road; and WHEREAS, in August, 2001, the City Council authorized the solicitation of bids for the lease of the Nimmo Parkway Property in accordance with Virginia Code Section 15.2-2100; and WHEREAS, the prospective lease of the Nimmo Parkway Property was challenged in the Virginia Beach Circuit Court in the case of Friends of Ferrell Parkway, L.L.C., v. City of Virginia Beach, in which the Court ruled that the procedure and process followed by the City was legally incorrect and, for that reason, by Order entered on July 10, 2002, the Court enjoined the City from entering into the prospective lease with the USFWS; and WHEREAS, since the Court rendered its decision in the aforesaid case, the USFWS has purchased the Lotus Creek property, such that the primary objective of the City Council in preventing the adverse effects of the development of the Lotus Creek Property has been accomplished; and WHEREAS, the Court's decision applies only to the specific lease approved by the City Council on August 28, 2001; and 35 36 37 38 39 4O 41 WHEREAS, an appeal of the Court's decision would not give the City any options regarding the disposition of the Nimmo Parkway Property which it does not already have, would not otherwise provide any additional authority of the Council to act in regard to this matter, would cause further controversy, and would not further any objectives of City Council; NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY 42 OF VIRGINIA BEACH, VIRGINIA: 43 That the City should not prosecute an appeal of the 44 Court's decision in the matter of Friends of Ferreli Parkway, 45 L.L.C., et als. v. C~ty of V~rginia Beach, et als.,but shall take 46 such action as necessary to defend the City's interests in the 47 event of an appeal by Friends of Ferrell Parkway, et als. 48 49 Adopted by the Council of the City of Virginia Beach, Virginia, on this 3 day of September , 2002. CA-8592 wmm/ordres / ferrellparkway2 res. wpd R-2 September 3, 2001 APPROVED AS TO LEGAL SUFFICIENCY: Law ~epartmen~f '--~ Item VI-I. 1. - 35- APPOINTMENTS ITEM # 50111 BY CONSENSUS, Ctty Counctl RESCHEDULED the followtng APPOINTMENTS: PARKS AND RECREATION COMMISSION PUBLIC LIBRARY BOARD TO WING AD VISOR Y BOARD September 3, 2002 Item VI-L2. - 36- APPOINTMENTS ITEM # 50112 Upon NOMINATION by Vtce Mayor Mandigo, Ctty Counctl APPOINTED: George A. Alcaraz Steven G. Draeger Alternates - 5 year terms 9/1/02 - 8/31/0 7 BOARD OF ZONING APPEALS Vottng 11-0 Counctl Members Vottng Aye Margaret L Eure, Louts R. Jones, Reba S McClanan, Rtchard A. Maddox, Vtce Mayor Robert C Man&go, Jr, Mayor Meyera E Oberndorf Jtm Reeve, Peter W Schmtdt, Ron A Vtllanueva, Rosemary Wdson and James L Wood Counctl Members Vottng Nay None Counctl Members Absent None September 3, 2002 Item VIJ.3. -37- APPOINTMENTS ITEM # 50113 Upon NOMINATION by Vtce Mayor Man&go, Ctty Counctl APPOINTED: Glenda H. Knowles Unexpired thru 12/31/03 FRANCIS LAND HOUSE BOARD OF GOVERNORS Vottng 11-0 Counctl Members Vottng Aye Margaret L Eure, Louts R Jones, Reba S McClanan, Rtchard A Maddox, Vice Mayor Robert C Man&go, Jr, Mayor Meyera E Oberndorf Jtm Reeve, Peter W Schmtdt, Ron A Vtllanueva, Rosemary Wtlson and James L Wood Counctl Members Vottng Nay None Counctl Members Absent None September 3, 2002 Item VI-L4. - 38- APPOINTMENTS ITEM # 50114 Upon NOMINATION by Vtce Mayor Man&go, City Counctl APPOINTED: J. P. Godsey Unexpired thru 3/31/05 HUMAN RIGHTS COMMISSION Vottng 11-0 Counctl Members Vottng Aye Margaret L Eure, Louts R Jones, Reba S McClanan, Rtchard A Maddox, Vtce Mayor Robert C Man&go, Jr, Mayor Meyera E Oberndorf Jtm Reeve, Peter W Schmidt, Ron A Vtllanueva, Rosemary Wtlson and James L Wood Counctl Members Vottng Nay None Counctl Members Absent None September 3, 2002 Item VI-LS. - 39- APPOINTMENTS ITEM # 50115 Upon NOMINATION by Vtce Mayor Man&go, Ctty Councd APPOINTED: Nancy K. Parker 2 years 09/01/02 - 08/31/04 David Redmond 1 year 09/01/02 - 08/31/03 Lyndon Remies 3 years 09/01/02 - 08/31/05 Pat Schuler, CPA 2 years 09/01/02 - 08/31/04 AND, REAPPOINTED Robert C. Spadaccini, Jr. 3 years 09/01/02 - 08/31/05 Council Liaison Reba S. McClanan No Term REVIEW AND ALLOCATION COMMITTEE- COG Voting 11-0 Counctl Members l/ottng Aye Margaret L Eure, Louts R Jones, Reba S McClanan, Rtchard A Maddox, Vtce Mayor Robert C Man&go, Jr, Mayor Meyera E. Oberndorf Jtm Reeve, Peter W Schmtdt, Ron A. Vdlanueva, Rosemary Wdson and James L Wood Councd Members Voting Nay None Councd Members Absent None September 3, 2002 Item VI-I.~. - 40- APPOINTMENTS ITEM # 50116 Upon NOMINATION by Vtce Mayor Man&go, Ctty Counctl APPOINTED Nancy A. Creech Neptune Festival No Term Barbara M. Henley President, Princess Anne Historical Society No Term VIRGINIA BEA CH/JAMESTOWN STEERING COMMISSION Vottng 11-0 Counctl Members Vottng Aye Margaret L Eure, Louts R Jones, Reba S McClanan, Rtchard A Maddox, Vtce Mayor Robert C Man&go, Jr, Mayor Meyera E Oberndorf Jtm Reeve, Peter W Schmtdt, Ron A. Vtllanueva, Rosemary Wtlson and James L Wood Counctl Members Vottng Nay None Counctl Members Absent None September 3, 2002 - 41 - Item VI-I. 7. APPOINTMENTS ITEM # 50117 Upon NOMINATION by Vtce Mayor Man&go, Ctty Counctl APPOINTED Jim A. Arnhold Timothy E. Barrow John A. Baum Stephanie Betts Richard Browner E. Richard Cockrell, Jr. John W. Cromwell, Jr. Jon Eliassen Richard "Dickie" S. Foster Lillian R. Gilbert Gene W. Hansen Rebecca A. Plate Myles A. Pocta Edward R. Sadler No Term TRANSITION AREA TECHNICAL AD VISOR Y COMMITTEE Vottng 11-0 Counctl Members gottng Aye Margaret L Eure, Louts R Jones, Reba S McClanan, Rtchard A Maddox, Vtce Mayor Robert C Man&go, Jr, Mayor Meyera E Oberndorf Jtm Reeve, Peter W Schmtdt, Ron A Vdlanueva, Rosemary Wtlson and James L Wood Counctl Members Vottng Nay None September 3, 2002 - 42 - Item VI-L. ITEM # 50118 AD JO URNMENT Mayor Meyera E Oberndorf DECLARED the City Councd Meettng ADJOURNED at 6:33 P.M. Beverly 0 Hdoks, CMC Chtef Deputy Ctty Clerk Ctty Clerk Meyera E Oberndorf Mayor Ctty of Vtrgtnta Beach Vtrgtnta September 3, 2002