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SEPTEMBER 13, 2005 MINUTES CITY COUNCIL MAYOR MEYERA E. OBERNDORF, At-Large VICE MA YOR LOUIS R. JONES, Bayside - District 4 HARRY E. DIEZEL, Kempsville - District 2 ROBERT M. DYER, Centerville - District I REBA S. McCLANAN, Rose Hall - District 3 RICHARD A. MADDOX, Beach - District 6 JIM REEVE, Princess Anne - District 7 PETER W SCHMIDT, At-Large RON A. VILLANUEVA, At-Large ROSEMARY WILSON, At-Large JAMES L. WOOD, Lynnhaven -District 5 CITY MANAGER - JAMES K. SPORE CITY ATTORNEY - LESLIE L. ULLEY CiTY CLERK. RUTH HODGES SMITH, MMC CITY OF VIRGINIA BEACH "COMMUNITY FOR A LIFETIME" CITY COUNCIL AGENDA 13 SEPTEMBER 2005 I. CITY COUNCIL BRIEFING - Conference Room - 3:00PM A. COMMUNITY LEGISLATIVE AGENDA (Draft) Robert Matthias, Assistant to the City Manager II. CITY COUNCIL COMMENTS III. REVIEW OF AGENDA ITEMS IV. INFORMAL SESSION CiTY HALL BUiLDING 240i COURTHOUSE DRiVE VIRGINIA BEACH, VIRGINIA 23456-8005 PHONE:(757) 427-4303 FAX (757) 426-5669 E-MAIL: Ctycncl@vbgov.com - Conference Room - A. CALL TO ORDER - Mayor Meyera E. Oberndorf B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION 4:30PM V. FORMAL SESSION - Council Chamber - 6:00 P.M. A. CALL TO ORDER - Mayor Meyera E. Oberndorf B. INVOCATION: James Christopher, Pastor Bayside Christian 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 September 6, -2005 G. AGENDA FOR FORMAL SESSION H. CONSENT AGENDA I. ORDINANCES/RESOLUTIONS 1. Ordinance to AMEND ~ 5-71 of the City Code re the disposition of impounded animals for adoption. 2. Ordinance to AUTHORIZE the City Manager to exercise the option to purchase approximately 6.1 acres from The Seasons at Birdneck Point, L.L.c. for $15,000,000 of which fifty percent (50%) shall be paid by the Commonwealth of Virginia. (DISTRICT 5 - L YNNHA VEN) 3. Ordinances re Town Center: a. AUTHORIZE the transfer of a portion of Block 6 to the Virginia Beach Development Authority re the new Performing Arts Theatre and other future development. b. AUTHORIZE a Development Arrangement between the Virginia Beach Development Authority and Town Center Associates, L.L.C. re Phase III mixed-use commercial development in the Central Business District; and, AUTHORIZE the sale of airspace over the City's right-of-way for Columbus Street. 4. Ordinance to AUTHORIZE the City Manager to execute a Memorandum of Understanding (MOU) with Access Partnership of Hampton Roads and TRANSFER $10,000 from Reserve for Contingencies to the Regional Participation FY 2005-06 Operating Budget to fund the MOD. 5. Ordinance to ESTABLISH the National Incident Management System (NIMS) re standards for incident management re federal preparedness assistance. 6. Ordinance to AUTHORIZE the City Manager to execute a First Amendment Lease Agreement between Stumpy Lake Golf Course, Incorporated, for the release of approximately 4.2 acres re returning the land to the City for Stumpy Lake natural area improvements re birding trails. 7. ACCEPT and APPROPRIATE $897,000 from the Federal Emergency Management Agency (FEMA) to the Fire Department's Operating Budget re continued operation of the Virginia Task Force 2 Urban Search and Rescue Team. 8. Ordinances to AUTHORIZE temporary encroachments: a. a portion of City property by ELDON L. and GLADYS T. GRIGGS at 908 Brasileno Court to construct and maintain a bulkhead. (DISTRICT 7 - PRINCESS ANNE) b. a portion of City property by PATRICK J. and LISA M. HENEGHAN at 912 Brasileno Court to construct and maintain a bulkhead. (DISTRICT 7 - PRINCESS ANNE) 9. Resolution to AUTHORIZE the issuance and sale of$97-Million Water and Sewer System Revenue and Refunding Bonds, Series 2500, re financing the cost of improvements to the water and sanitary sewer facilities and refunding certain bonds- issued under the Master Water and Sewer Bond Resolution. J. PLANNING 1. Variance to S4.4(b) of the Subdivision Ordinance that requires all newly created lots meet the requirements of the City Zoning Ordinance (CZO) for WALTON G. and JANE M. BRUMLEY at 6472 Knotts Island Road. (DISTRICT 7 - PRINCESS ANNE) RECOMMENDATION: APPOV AL 2. Application ofTY BROWN for the expansion of a Nonconforming Use at 412 26th Street to replace an existing nonconforming cottage. (DISTRICT 6 - BEACH) RECOMMENDA nON: APPROVAL 3. Application of TIDEWATER IMPORTS, INC. t/a HALL NISSAN VIRGINIA BEACH for a Conditional Use Permit re a communications tower on the north side of 1-264, the east side of Pine Street and the west side of Poplar Street. (DISTRICT 3 - ROSE HALL) RECOMMENDATION: APPROVAL 4. Application of JAMES A. CASPER for a Conditional Use Permit re a contractor's storage yard at 1297 Baker Road. (DISTRICT 4 - BA YSIDE) RECOMMENDATION: APPROVAL 5. Application of NEW LIGHT BAPTIST CHURCH for a Conditional Use Permit re a church addition (Family Life Center) on the south side of Indian River Road, east of Church Street. (DISTRICT 1- CENTERVILLE) RECOMMENDATION: APPROVAL 6. Application of MUNDEN LAND, LLC for a Change ofZoninJ! District Classification from AG-l and AG-2 Agricultural District to Conditional PD-H2 Planned Unit Development re single-family residences at Princess Anne and Sandbridge Roads. (DISTRICT 7 - PRINCESS ANNE) DEFERRED: RECOMMENDATION: August 23, 2005 APPROVAL 7. Ordinance to AMEND Section 904 of the City Zoning Ordinance (CZO) re maximum height restrictions for uses and structures in the B-3A Pembroke Central Business Core District. RECOMMENDATION: APPROV AL K. APPOINTMENTS EASTERN VIRGINIA HEALTH SYSTEMS AGENCY HEALTH SERVICES ADVISORY BOARD HISTORICAL REVIEW BOARD INVESTMENT PARTNERSHIP ADVISORY COMMITTEE - PPEA PARKS and RECREA nON COMMISSION PERSONNEL BOARD (Alternates) PUBLIC LIBRARY BOARD REVIEW AND ALLOCATION COMMITTEE (COG) L. UNFINISHED BUSINESS M. NEW BUSINESS . N. ADJOURNMENT ** * * * * * * * * If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 427-4303 Hearing impaired, call: VIRGINIA RELAY at 1-800-828-1120 *********** Agenda 09/13/2005/gw www.vbgov.com MINUTES VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia 13 September 2005 Mayor Meyera E. Oberndorf called to order the CITY COUNCIL BRIEFING re COMMUNITY LEGISLATIVE AGENDA in the Council Conference Room, City Hall, on Tuesday, September 13, 2005, at 3:00 P.M, Council Members Present: Harry E, Diezel, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva, James L. Wood a.nd Rosemary Wilson Council Members Absent: Robert M Dyer [New grandson, entered: 3:30 P.M.] Richard A, Maddox [Sentara Virginia Beach General Hospital/ Bronchial Infection] - 2 - CITY COUNCIL BRIEFING COMMUNITY LEGISLATIVE AGENDA (Draft) 3:00 P.M. ITEM # 54360 The City Manager introduced Robert Matthias, Assistant to the City Manager, to present the Draft Community Legislative Agenda. Robert Matthias, Assistant to the City Manager, advised Council Members Villanueva and Wilson, Liaisons for Legislative Coordination, have been very involved in the community process. A supplemental meeting approximately three (3) weeks ago provided detailed comments from the Community. Local governments are concerned as to what the General Assembly may decide to do regarding limiting local governmental powers. The General Assembly will hear many calls to limit assessment increases, property tax increases and/or rate increases, Virginia Beach, and most local governments, are adamantly opposed to any such limitation. The City Council through the budget process for 2006, cut the real estate tax rate by $.1725 on top of the rate cut of $.0236 accomplished during the 2005 budget process, Assessments increased in Virginia Beach and City Council lowered the rate, City Council does not need the assistance of the General Assembly to set property tax rates, to allow homestead exemptions or to cap assessment increases. City Council responds to its citizens and their concerns, The gubernatorial candidates have discussed that the General Assembly should, in return for capping assessments or establishing (20%) homestead exemptions, fully fund state services. For many years, City Council has repeatedly requested that the General Assembly fully fund state services. For example, the amount of funding for the Standards of Quality (SOQ) does not fund the Standards of Learning (SOL). Virginia Beach still provides over $138.-M1LL10N in local funds for the education system above and beyond what is required by the SOQ. Furthermore, the state has continually under-funded other state services such as courts, social services, public safety and mental health. The state should fully fund these services before it begins limiting localities' ability to provide the funding necessary to keep these services in operation. The General Assembly should address the under-funding of the Car Tax Relief Program. When the car tax was capped during the 2004 General Assembly Session, there was approximately $2 70-M1LL10N of under- funding of car tax reimbursement to localities, This means localities that send billings to citizens during the Spring, such as Virginia Beach, are not reimbursed from the fiscal year the citizens are receiving the property tax relief, but are being reimbursed the followingfiscal year. This is an ongoing obligation of the Commonwealth and the state should refund localities for current fiscal year obligations with current fiscal year resources, The General Assembly has not addressed the transportation issues that have been in City Council's Community Legislative Agenda for many years, Funding for transportation in the amount of $850- MILLION was provided on a one-time basis during the 2005 General Assembly Session. Much of this funding was appropriated to previously completed projects, City Council is against using on-going streams of revenue from the general fund for transportation. The general fund revenues should be spent on courts, social services, public safety and mental health - all the public services that are vital to each and every citizen. The General Assembly needs to establish increased streams of revenue for transportation so that the timely movement of goods and services can be addressed. The security of our economy and the welfare of Virginia citizens are paramount, The General Assembly has let our economy and welfare fall behind everyday because transportation has not been seriously addressed. Virginia Beach lost approximately 300,000 overnight visitors because of the bottlenecks experienced on 1-64, 1-264 and other Hampton Roads crossings. The General Assembly should fund these programs or allow local governments and regions to generate the money for local use. There are additional details on the transportation funding necessary to correct the Commonwealth's shortfall in the "City of Virginia Beach 2006 Funding Items" section of this Agenda. September 13, 2005 - 3 - CITY COUNCIL BRIEFING COMMUNITY LEGISLATIVE AGENDA (Draft) ITEM # 54360 (Continued) 2006 COMMUNITY LEGISLATIVE AGENDA CITY OF VIRGINIA BEACH TABLE OF CONTENTS Table of Contents Preface City of Virginia Beach Non-Funding Items Page # 2-3 4-5 1. After School Licensure for "Come and Go" Exemption in Virginia Beach 6 2. Codification of Joint Land Use Study Recommendations and Other Measures 6-8 3. Local Capture of Sales Tax from Certain Redevelopment Projects 9-10 4. Post Labor Day Opening for Schools 10 5. Pruning and Trimming of Trees Surrounding Billboards 10-12 6. Public Library Director Requirements 12-13 7. Public Safety - 911 Tax 13-15 8. Public Safety - Enhanced 9-1-1 for Multi-line Telephone Systems 15-16 9. Public Safety - Modifications to Wireless 911 Funding Formula 16-18 10. Photo-Monitoring, Reenactment of Authorization 18-20 11. Retirement Coverage for Emergency Medical Technicians 20-23 City of Virginia Beach Fundin~ Items 1. Army Corps of Engineers 216 Study of Kerr Reservoir 2. "Authors of Liberty" Exhibition Support in 2007 3. Base Realignment and Closure Commission Requirement 4. Community Services Board 5. Contemporary Art Center of Virginia Beach 6. Elizabeth River Restoration: Sediment Cleanup and Wetlands Restoration Funding 7. Emergency Medical Services Return to Localities ("4 for Life") Funding Resolution 8. Hydrilla Eradication and Management on Lake Gaston 9. Infopowering the Commonwealth: Find It Virginia 10. Internet Access and State Aid to Public Libraries 11. Matching Funds for Local Housing Trust Funds 12. State Aid to Virginia Public Libraries 13. Tidewater Community College/Virginia Beach Joint Use Library 14. Transportation Funding 15. Virginia Aquarium & Marine Science Center Animal Care Enhancements 16. Virginia Beach Convention Center Funding 17. Virginia Beach Performing Arts Center Capital Funding 24 25 25-26 26 26-27 27-28 29 29-30 30-31 31 31-32 32 33 34-35 35-36 36-37 37-38 September 13, 2005 - 4 - CITY COUNCIL BRIEFING COMMUNITY LEGISLATIVE AGENDA (Draft) ITEM # 54360 (Continued) Page # Community Input Chesapeake Bay Preservation Clean Community Funding Community Corrections Funding Support Community Court Authorization Disaster Preparedness Eminent Domain Gang Violence Law Enforcement Funding for Appropriate Manning Levels of Personnel Preserving Naval Air Station Oceana Human Services Identity Theft Property Taxes Transportation VDOT Study on Telecommuting in Hampton Roads 1 1 1 2 2 2 2 3 3 3 3 4 4 4 Police Department Public Safetv Addendum 1-39 After School Licensure for "Come and Go" Exemption in Virginia Beach: Cindy Curtis, Director - Parks and Recreation. The State Department of Social Services (DSS) has advised the City that it can no longer operate its after- school programs at sixty-four (64) locations under the "Come and Go" exemption. Therefore, a placeholder has been requested to allow time to develop a response to any move by DSS and to prepare changes to the Code of Virginia, Codification of Joint Land Use Study recommendations and other measures to protect Naval Air Station Oceana: The General Assembly is requested to enact legislation to implement the JLUS between Virginia Beach, Chesapeake and the Navy and to codifY the implementation plan to guarantee the future of NAsa as presented by Delegate Suit and other members of our delegation. The General Assembly is also requested to address the requirements placed on Virginia Beach and Chesapeake by the BRA C Commission to maintain NASa. Motion Number 193-4A (at Chapter XI, Section 193 of the Bill) was presented during the BRAC hearing dated August 24, 2005 Local Capture of Sales Tax from Certain Redevelopment Projects: Andy Friedman, Director - Housing and Neighborhood Preservation The General Assembly is requested to amend the Code of Virginia to allow localities and redevelopment authorities to recapture local and state sales taxes for mixed-use (residential/retail) projects that incorporate affordable housing in projects that meet the following criteria: a. Are mixed use and mixed income, including retail and rental and/or ownership with at least 20% of the dwelling units, affordable to those earning up to Area Median Income (AMI) as defined by HUD, September 13, 2005 - 5 - CITY COUNCIL BRIEFING COMMUNITY LEGISLATIVE AGENDA (Draft) ITEM # 54360 (Continued) b. Are financed by bonds with payments paid by the project income, including state and local sales tax revenues from new retail development, within the project area c, Utilize the bond proceeds for the usual redevelopment costs including land acquisition, demolition relocation and the re- construction of new infrastructure and other site improvements Mr. Friedman advised this is Worliforce Housing proposal to assist making some portion of the housing more in line with Worliforce costs by capturing the revenue. Mr. Matthias advised examples of projects utilizing this concept: Hotel Roanoke, a hotel in Portsmouth and the stadium in Washington, D, C. Post Labor Day Opening for Schools: James Ricketts, Director - Convention and Visitors Bureau: The General Assembly is requested to maintain the existing legislation concerning post Labor Day opening of schools, This allows all schools to open after Labor Day except those given exemptions by the State Board of Education, Pruning and Trimming of Trees Surrounding Billboards: James K. Spore, City Manager The General Assembly is requested to not extend the authority of the Commonwealth Transportation Commissioner to allow permits to prune tree, shrubbery, etc., blocking billboards on Virginia Beach Boulevard and additional roads within the City of Virginia Beach. The beautification of our highways and the City, in general, is something our citizens and City Council take seriously and do not want another authority to manage these efforts. Public Library Director Requirements: Marcy Sims, Director- Department of Public Libraries Library directors currently serving a population of more than 13,000 are required to have an accredited MLS Degree in order for their libraries to receive full State Aid to Public Libraries funding. The requirement is particularly important for smaller public libraries in Virginia, where the Director may be responsible for a variety of professional duties. It is also important because the Director must be able to balance knowledgeably and ethically the demands of a business that is a social institution committed to offering free access to information. The General Assembly is requested to support the continuation of this requirement in the law, specifically the Code of Virginia 9 42.1-15.1 Qualifications required to hold Professional Librarian position. Public Safety - 911 Tax Public Safety - Enhanced 9-1-1 for Multi-line Telephone Systems Public Safety - Modifications to Wireless 911 Funding Formula Gwen K. Cowart, Director - Department of Communications and Information Technology The General Assembly is requested to oppose any change in the current Virginia State Code Title 58.1-3813.1 Local tax for enhanced 9-1-1 services. The General Assembly is requested to oppose changes to the telecommunications tax structure and reject any bills until the FCC, Federal Courts, and Congress can adopt a national policy. September 13, 2005 - 6- CITY COUNCIL BRIEFING COMMUNITY LEGISLATIVE AGENDA (Draft) ITEM # 54360 (Continued) If a Telecommunications Tax simplification moves forward, the City requests the General Assembly eliminate any reference to the 911 tax and not consider this as part of the bill. The General Assembly is requested to create a study group to review the proposed Multi-line Telephone Systems (MLTS) model legislation and present a final version for adoption within the 2006 General Assembly Session, The General Assembly is requested to change the 9-1-1 Wireless Funding formula to be based upon a ratio of total number of 9-1-1 calls to wireless 9-1-1 calls, as represented by the NEW FORMULA proposed in the section above. Additionally, the Wireless Board was established as part of the original legislation and has served the purpose and intent as originally defined. Further expansion or authority of this board over other aspects of 9-1-1 service delivery was not the intended purpose and we request that any changes to the Wireless Board be opposed. 9-1-1 service delivery is a local responsibility just as having a local policing authority is. The General Assembly is requested to oppose any changes to the Wireless Board structure, charter or mandate, Photo-Monitoring, reenactment of authorization: Chief A. M Jacocks, Chief of Police Authorization for photo monitoring of traffic signals expired on July 1, 2005, While this program was extremely successful in reducing traffic accidents, and supported by the majority of those voters in localities where this program was established, authorization to extend the program was not forthcoming. The City is requesting this program be extended. Councilman Wood advised he is a supporter of this item and referenced Paragraph D as his concern with citizens informing on other citizens: D. In the prosecution of an offense established under this section, prima facie evidence that the vehicle described in the summons issued pursuant to this section was operated in violation of this section, together with proof that the defendant was at the time of such violation the owner, lessee, or renter of the vehicle, shall constitute in evidence a rebuttable presumption that such owner, lessee, or renter of the vehicle was the person who committed the violation. Such presumption shall be rebutted if the owner, lessee, or renter of the vehicle (i) files an affidavit by regular mail with the Clerk of the General District Court, that he or she was not the operator. and identities the name and address of the driver of the vehicle at the time of the alleged violation or (ii) testifies in open court under oath that he or she was not the operator, and identities the name and address of the driver of the vehicle at the time of the alleged violation. Such presumption shall also be rebutted if a certified copy of a police report, showing that the vehicle had been reported to the police as stolen prior to the time of the alleged violation of this section, is presented, prior to the return date established on the summons issued pursuant to this section, to the court adjudicating the alleged violation. September 13, 2005 - 7 - CITY COUNCIL BRIEFING COMMUNITY LEGISLATIVE AGENDA (Draft) ITEM # 54360 (Continued) Mr. Matthias advised the underlined verbiage re citizens informing on other citizens would be removed. Retirement Coverage for Emergency Medical Technicians: Chief Bruce Edwards, Director - Emergency Medical Services (This item was included in last year's Agenda) The Virginia Law Officer's Retirement System (VaLORS) allows designated public safety officers to retire with unreduced benefits earlier than other employees enrolled in the Virginia Retirement System (VRS). For example a 50-year-old police officer may retire after 25 years of service with full benefits while another municipal employee of the same age must have 30 years of service, This program recognizes the unique physical and mental demands placed on emergency responders during their career and supports more realistic career longevity. While the VaLORS program covers firefighters, the program does not include Emergency Medical Technicians (EMT). Relative the 2006 Funding items, due to the amount offunding available, Mr, Matthias advised City Council will probably need to prioritize these items. Army Corps of Engineers 216 Study of Kerr Reservoir: Tom Leahy, Director - Public Utilities The General Assembly is requested to ensure that funding for Virginia's continued participation in the 216 Study is included in the DEQ 's FY2007 budget. "Authors of Liberty " Exhibition Support in 2007: Lynn Clements, Director - Department of Museums and Cultural Arts The General Assembly is requested to appropriate funding in the amount of$500, 000 to support bringing the international exhibition, "Authors of Liberty, [Magna Charta]" to Virginia and her citizens. The funding will ensure the provision of proper and necessary security during the three-month period in Virginia Beach; support the operations and logistics for the exhibition; and, provide for promotions across various media. The Commonwealth of Virginia will be recognized as a primary partner in the exhibition's Virginia Beach run. Base Realignment and Closure Commission Requirements: City Council - City of Virginia Beach The General Assembly is requested to appropriate at least $7.5-MILLION for each year of the Biennium to comply with the BRAC requirements. Mr. Matthias advised the final language from the BRAC Commission stated federal funds should not be utilized to help pay for infractions on encroachments, This is "report' language and does not have the force of law, Community Services Board (CSB): Dr. Terry Jenkins, Department Director - MH/MR/SA The General Assembly is requested to bring the Code of Virginia definition for eligibility for Medicaid to 85 percent of the 2005 poverty level. The General Assembly is also requested to appropriate additional statewide funding. Mr. Matthias shall provide information relative the definition of eligibility re the poverty level, September 13, 2005 - 8- CITY COUNCIL BRIEFING COMMUNITY LEGISLATIVE AGENDA (Draft) ITEM # 54360 (Continued) Contemporary Art Center of Virginia Funding: Cameron Kitchen, Executive Director - Contemporary Art Center of Virginia The General Assembly is requested to provide $750,000 to the Contemporary Art Center of Virginia Elizabeth River Restoration: Sediment Cleanup and Wetlands Restoration Funding: Arthur L. Collins, Executive Director - Hampton Roads Planning District Commission (HRPDC) The General Assembly is requested to budget matching funds for the Scuffletown Creek Sediment Cleanup, the Paradise Creek Feasibility Study and Clean Elizabeth River Bottom Sediments The General Assembly is requested to continue funding to support the next phases of an award-winning, cooperative project to achieve the historic cleanup of toxic sediments in the Elizabeth River. Scuffletown Creek Construction FY 2007 $1,300,000 FY 2008 $1.400.000 Total $2,700,000 Paradise Creek Feasibilitv Study FY 2007 $187,500 FY 2008 $187.500 Total $375,000 Emergency Medical Services Return to Localities ("4 for Life'? Funding Resolution: Bruce Edwards, Director - Emergency Medical Services The General Assembly is requested to support the return of these funds for use by Emergency Medical Services in the Commonwealth and in the City of Virginia Beach. Hydrilla Eradication and Management on Lake Gaston: Tom Leahy, Director - Public Utilities The General Assembly is requested to increase Virginia's contribution to hydrilla control in Lake Gaston to $200,000. Infopowering the Commonwealth: Find It Virginia: Marcy Sims, Director - Department of Public Libraries The General Assembly is requested to provide $l-MILLION in funding for FY 2007 and in each year of the Biennium to support Infopowering the Commonwealth: Find It Virginia, to expand the core collection of full text reference, magazine and newspaper articles that are provided to all citizens of Virginia via their public library card or through the K-12 and community college programs, Internet Access and State Aid to Public Libraries: Marcy Sims, Director - Department of Public Libraries The General Assembly is requested to oppose any legislation that eliminates State Aid to Public Libraries fundingfor local libraries that provide unfiltered Internet access. September 13, 2005 -9- CITY COUNCIL BRIEFING COMMUNITY LEGISLATIVE AGENDA (Draft) ITEM # 54360 (Continued) Matching Funds for Local Housing Trust Funds: Andy Friedman, Director - Housing & Neighborhood Preservation The General Assembly is requested to appropriate $l-MILLION in funds to be placed in an account designated as the "Local Housing Trust Fund Matching Fund". This fund would be administered by the Department of Housing and Community Development, which would develop and enforce criteria for the allocation of the funds, in consultation with localities, State Aid to Virginia Public Libraries: Marcy Sims - Director - Department of Public Libraries The General Assembly is requested to fully fund State Aid to Virginia Public Libraries in the amount of$24,500,000. Tidewater Community College/Virginia Beach Joint Use Library: Marcy Sims, Director - Department of Public Libraries The City of Virginia Beach and Tidewater Community College are considering constructing and operating a single facility to house the proposed TCC/ Virginia Beach Campus Learning Resources Center and what is presently called the South Rosemont Area Library (CIP Project 3-175), The College is planning to build a 150,000 square foot Learning Resource Center at the corner of Rosemont Road and Faculty Drive. Enabling legislation might be required in the 2006 Session to allow this project to go forward. Transportation Funding: City Council - City of Virginia Beach The General Assembly is requested to provide a long term funding stream for the major projects in Hampton Roads. This new funding stream along with the proposed tolling of the projects would allow these importantly vital transportation projects to move forward in a timely fashion. A considerable degradation of businesses and quality of life in the region will occur if these projects are not funded. The Hampton Roads Metropolitan Planning Organization (MPO) identified a number ofhigh cost projects that cannot be funded within normal revenue streams. The total cost of these projects exceeds $9 BILLION Former Governor BaUiles has proposed an 854 toll on all the Interstates in the Commonwealth. This would generate approximately $l-BILLION per year. If Hampton Roads receives one-fourth of these funds, this would assist in making up the difference in the shortfall of $27 5-MILLION Mr. Matthias shall provide a Briefing to City Council re a $l-BILLION improvement package for 1-264, within the next thirty (30) days, Councilman Schmidt inquired re the $10-MILLION of State funds for the Bus Rapid Transit (BRT) be made available to the Norfolk/Southern right-ofway. Mr, Matthias advised the General Assembly will do something with these funds in the so called "caboose" bill. There is a possibility, these funds could stay programmedfor BRT or be placed into other transportation projects. The City Council could request these funds be set aside for the Norfolk/Southern right-ofway purchase. There are other decisions and data on this issue which City Council has not received. The City Manager advised this item would be scheduled for the City Council Session of September 27, 2005. September 13, 2005 - 10- CITY COUNCIL BRIEFING COMMUNITY LEGISLA TIVE AGENDA (Draft) ITEM # 54360 (Continued) Virginia Aquarium & Marine Science Center Animal Care Enhancements: Lynn Clements, Director- Museums & Cultural Arts The General Assembly is requested to provide $2-MILLION to be spent on the Aquarium's animal care resources, A modest investment can be leveraged to produce significant results in both local and global conservation education. With increased animal care capacity, staff can develop advanced husbandry practices and increase the number of animals the Aquarium can display to the public. In the next year, the Aquarium will embark on expanding the scope of its collection to include species from other parts of the world. These unusual animals will illustrate adaptations to special environments, threats they must overcome, and how these exotic habitats relate to Virginia and global conservation issues. By gaining hands-on experience with these animals, the Aquarium can participate directly in research and conservation efforts across the globe, The Aquarium will use this investment to help develop a new 16,000 square foot Animal Care Annex, an operational support facility which will house the marine mammal and sea turtle Stranding Response Center, marine animal collection and quarantine operations and educational outreach programs. The new animal care facility will include diagnostic laboratories, advanced marine animal aquarium systems and freshwater and saltwater processing capabilities, Virginia Beach Convention Center Funding: James Ricketts, Director - Convention & Visitors Bureau The General Assembly is requested to provide $20-MILLION in fundingfor the new Convention Center, This is in keeping with the benefits to the Commonwealth based on the amount of state tax revenue that will be generated from the new facility over a ten-year period. (In 1998, the General Assembly gave $10-MILLION to the Richmond Convention Facility, which set a precedent). Virginia Beach Performing Arts Center Capital Funding Request: Lynn Clements, Director - Museums and Cultural Arts. The General Assembly is requested to appropriate $2-MILLION of the remaining $12.5-MILLION neededfor the construction of the Virginia Beach Performing Arts Center. Councilman Reeve referenced last year's request to allow a freeze on Senior Citizens tax relief This item was not included this year. Mr. Matthias advised the General Assembly has to pass a Resolution to change the Constitution and there has to be an intervening election, pass the General Assembly again and then go to Referendum. This is usually accomplished in the second year of the Biennium, Mr. Matthias advised this item would be included in the Community Legislative Agenda. Council Members McClanan and Wilson are the Liaisons for the Tax Assessment Task Force. There was detailed discussion re the City's only real estate tax rate which covers both residential and commercial. Council Lady Wilson suggested the request of having two separate rates for residential and commercial be added to the Community Legislative Agenda. Mayor Oberndorfwished Economic Development provide information concerning impact of these separate rates regarding businesses being located in Virginia Beach. September 13, 2005 - 11 - CITY COUNCIL BRIEFING COMMUNITY LEGISLATIVE AGENDA (Draft) ITEM # 54360 (Continued) Regarding the Police Department Public Safety Addendum, Captain Ken Lowe advised over the last thirty (30) years, the standards for recruiting Virginia Beach Police Officers have remained constant. The standards in other communities have decreased. There have been numerous cases of applicants rejected by Virginia Beach being hired by other cities. Mayor Oberndorf respected and concurred with the decisins made. Councilman Schmidt inquired re the Learner Operator's Permit, If someone under 18 has been expelled or suspended from school for ten (IO) or more consecutive days or been involved in an offense of drugs or assault of a faculty member, the student will loose their license for a year. The student would not automatically loose their license until the end of the judicial process upon the final decision of guilt. The Motor Vehicle Inspection Laws are very stringent. State Code requires a muffler be installed on one's vehicle to deaden the sound. The Inspection only requires there be no leaks from the engine block to the tail pipe and does not mention a muffler, The Public Safety Addendum is requesting the Inspectors deny the Inspection if a piece of equipment on the vehicle is illegal or after market, i.e. too much tint on the window, suspension blocks rising trucks above the legal heights. Community Legislative Agenda Schedule Public Hearing Final Adoption Receipt by General Assembly Delegation Annual Reception with General Assembly Delegation, City Council and School Board September 27, 2005 October 4, 2005 October 7,2005 November 9,2005 The General Assembly Delegation begins pre-filing on November 21, 2005. December 8, 2005, is the last date to request legislation for pre-file, On January 11,2006, the General Assembly Session convenes. The last day to introduce Bills is January 20,2006. The Base Realignment and Closure Commission (BRAC) requires a March 31, 2006, deadline for compliance from Virginia Beach, Chesapeake and the Commonwealth. Mayor Oberndorf referenced the concept of City Council elections being held in November, Deputy City Attorney advised this can be accomplished by Ordinance, as long as not adopted between January First and May First of the year in which the City Council election is to be held. Another method to approve this concept would be by popular Referendum, Mr. Matthias advised a memorandum would be distributed to City Council outlining information relative November elections. September 13, 2005 - 12- CITY COUNCIL COMMENTS 4:25 P.M. ITEM # 54361 Councilman Diezel referenced the issue of the fee structure for the Towing Advisory Board. Mayor Oberndorf advised discussion relative the increase in fees could be scheduled for a City Council Workshop. ITEM # 54362 Council Lady Wilson referenced the United Way Annual Day of Caring, Friday, September 9, 2005. Approximately twenty-four (24) Volunteers of the City of Virginia Beach staff spent afull day cleaning the grounds at the Lynnhaven House. Council Lady Wilson expressed appreciationfor the unselfish dedication of the City employees. There were other numerous other locations where City Staff volunteered renovations and cleanups, Mayor Oberndorf advised the City Manager and his Executives every year do an incredible job of participating in the United Way Annual Day of Caring, as assisting with the repair of a home for battered women, cleaning the grounds of 'half way houses. ITEM # 54363 The City Manager distributed a memorandum relative the discussion concerning individuals assigned to participate in a Local Work Group relative BRAe. City Council had previously requested names of people that had inquired or asked to serve if an advisory group was established. If desired, City Council could establish a citizens advisory group to serve as a communications link to the local workgroup. Mayor Oberndorf referenced the Local Work Group structure: I City Council - Review and Comment - Public Work Group Steering Committee Membership: Mayor Vice Mayor City Manager City Attorney Lead from each Subgroup Subgroups: Economic Impact/Land Use Issues/Public Communications/Legal/Acquisition Issues Technical Committee Membership: City Manager's Office City Attorney's Office Management Services Media & Communication Planning Public Works Real Estate Office Outside Expertise Economist Legal Media Appraisers Others as needed September 13, 2005 - 13- CITY COUNCILCOMMENTS ITEM # 54363 (Continued) Local Work Group Purpose Coordinate and work with the Governor's Task Force and Regional efforts To collect/ analyze data needed by City Council related to compliance with the BRA C requirements To keep all decision paths open until City Council makes a decision, By Consensus, on September 27, 2005, the members of City Council shall each suggest a citizen's name for the Subgroups and discuss the appointments during the Closed Session September 13, 2005 - 14 - AGENDA RE VIE W SESSION 5:07 P.M. ITEM # 54364 1.1. Ordinance to AMEND ~ 5-71 of the City Code re the disposition of impounded animals for adoption. Council Lady McClanan requested this item be DEFERRED in order for the SPCA director to be in attendance and for discussion. Steve Snyder, Animal Control Supervisor, advised the City Code provides for animals adopted from the Bureau of Animal Control to be spayed or neutered by the Bureau prior to adoption. This provision was accomplished through a cooperative agreement with the Virginia Beach SPCA to provide Veterinarian services, the costs of which were paid by the adopting owner, The service agreement was recently terminated. The City Code should be revised to comply with the provisions of the State Code, which allows a thirty (30) day period for the owner to have the animal sterilized. Mr, Snyder would be pleased to discuss this issue with Council Lady McClanan and the SPCA, Kathy Rountree, Associate City Attorney, distributed an Alternate Version of the Ordinance, ITEM # 54365 1.2, Ordinance to A UTHORIZE the City Manager to exercise the option to purchase approximately 6,1 acres from The Seasons at Birdneck Point, L.L. C. for $15,000,000 of which fifty percent (50%) shall be paid by the Commonwealth of Virginia. (DISTRICT 5 -LYNNHAVEN) Mayor Oberndorf distributed copies of an e-mail from Robert K. Dean, Communications Director - Virginia Beach Taxpayer Alliance. Mr, Dean requested Carl Strass, a retired attorney with the Us. Justice Department be allowed ten (10) minutes to speak as a representative of the Virginia Beach Taxpayer Alliance, in opposition to the Ordinance to AUTHORIZE the City Manager to exercise the option to purchase approximately 6.1 acres from The Seasons at Birdneck Point, L.L. C. for $15,000,000, BY CONSENSUS, City Council shall allow Mr, Strass to speakfor ten (JO) minutes as a representative of the Virginia Beach Taxpayer Alliance. Anyone representing a group shall be allowed ten (IO) Minutes. Individuals will be allowed three (3) Minutes. The City Manager shall provide information to the citizenry regarding the importance of this Ordinance prior to the hearing of the registered speakers, ITEM # 54366 BY CONSENSUS, thefollowing shall compose the CONSENT AGENDA: ORDINANCES/RESOLUTIONS 1.1. Ordinance to AMEND ~ 5-71 of the City Code re the disposition of impounded animals for adoption. September 13, 2005 - 15 - AGENDA RE VIE W SESSION ITEM # 54366 (Continued) 1.3. Ordinances re Town Center: a. AUTHORIZE the transfer of a portion of Block 6 to the Virginia Beach Development Authority re the new Performing Arts Theatre and other future development. b. AUTHORIZE a Development Arrangement between the Virginia Beach Development Authority and Town Center Associates, LL C. re Phase III mixed-use commercial development in the Central Business District; and, AUTHORIZE the sale of airspace over the City's right- of- way for Columbus Street, 1.4. Ordinance to AUTHORIZE the City Manager to execute a Memorandum of Understanding (MOU) with Access Partnership of Hampton Roads and TRANSFER $10,000 from Reserve for Contingencies to the Regional Participation FY 2005-06 Operating Budget to fund the MOU 1.5. Ordinance to ESTABLISH the National Incident Management System (NIMS) re standards for incident management re federal preparedness assistance. 1.6, Ordinance to AUTHORIZE the City Manager to execute a First Amendment Lease Agreement between Stumpy Lake Golf Course, Incorporated, for the release of approximately 4,2 acres re returning the land to the City for Stumpy Lake natural area improvements re birding trails, 1. 7. ACCEPTandAPPROPRIATE $897,000from the Federal Emergency Management Agency (FEMA) to the Fire Department's Operating Budget re continued operation of the Virginia Task Force 2 Urban Search and Rescue Team. 1.8, Ordinances to AUTHORIZE temporary encroachments: a a portion of City property by ELDON L. and GLADYS T. GRIGGS at 908 Brasileno Court to construct and maintain a bulkhead, (DISTRICT 7 - PRINCESS ANNE) b, a portion of City property by PATRICK J. and LISA M. HENEGHAN at 912 Brasileno Court to construct and maintain a bulkhead. (DISTRICT 7 - PRINCESS ANNE) September 13, 2005 - 16- AGENDA RE VIE W SESSION ITEM # 54366 (Continued) 1. 9. Resolution to A UTH ORIZE the issuance and sale of $9 7- Million Water and Sewer System Revenue and Refunding Bonds, Series 2500, refinancing the cost of improvements to the water and sanitary sewer facilities and refunding certain bonds issued under the Master Water and Sewer Bond Resolution. Item 1.1 shall be DEFERRED INDEFINITELY, BY CONSENT Council Members McClanan and Dyer shall vote a VERBAL NAY on Item 3.b. (Town Center) September 13, 2005 -17- AGE N DA REV IE W S E S S ION ITEM # 54367 J 6, Application of MUNDEN LAND, LLC for a Change of Zoning District Classification from AG-l and AG-2 Agricultural District to Conditional PD-H2 Planned Unit Development re single-family residences at Princess Anne and Sandbridge Roads, (DISTRICT 7 - PRINCESS ANNE) Robert Scott, Director of Planning, advised this application conforms with the Joint Land Use Plan (JLUS). Correspondence from Captain Tomas Keeley, Commanding Officer - NAS Oceana, advises the Navy's Air Installations Compatible Use Zones Program views residential development as not compatible and discourages this use in the 65 - 70 DNL. This application will be discussed during the Formal Session, ITEM # 54368 BY CONSENSUS, the following shall compose the PLANNING BY CONSENT AGENDA: PLANNING J1. Variance to S4.4(b) of the Subdivision Ordinance that requires all newly created lots meet the requirements of the City Zoning Ordinance (CZO) for WALTON G. and JANE M. BRUMLEY at 6472 Knotts Island Road. (DISTRICT 7 - PRINCESS ANNE) J2. Application of TY BROWN for the expansion of a Nonconformin<< Use at 412 26th Street to replace an existing nonconforming cottage. (DISTRICT 6 - BEACH) J3, Application ofTIDEWA TER IMPORTS, INC. tfa HALL NISSAN VIRGINIA BEACH for a Conditional Use Permit re a communications tower on the north side of 1- 264, the east side of Pine Street and the west side of Poplar Street. (DISTRICT 3 - ROSE HALL) J4. ApplicationofJAMESA. CASPERforaConditional Use Permit re a contractor's storage yard at] 297 Baker Road. (DISTRICT 4 - BAYSIDE) J5. Application of NEW LIGHT BAPTIST CHURCH for a Conditional Use Permit re a church addition (Family Life Center) on the south side of Indian River Road, east of Church Street, (DISTRICT 1- CENTERVILLE) September 13, 2005 -18 - AGENDA RE VIE W SESSION ITEM # 54368 (Continued) J 7. Ordinance to amend Section 904 of the City Zoning Ordinance (CZO) re maximum height restrictions for uses and structures in the B-3A Pembroke Central Business Core District, Mayor Oberndorfwill vote a VERBAL NAY on Item J1. and J2. Council Lady McClanan will vote a VERBAL NAY on Item J3, J4, and J 7, September 13, 2005 - 19- ITEM # 54369 Mayor E. Oberndorf entertained a motion to permit City Council to conduct its CLOSED SESSION, pursuant to Section 2.1-344(A), Code of Virginia. as amendedJor the following purpose: LEGAL MATTERS: Consultation with legal counselor briefings by staff members, consultants, or attorneys pertaining to actual or probable litigation, or other specific legal matters requiring the provision oflegal advice by counsel pursuant to Section 2.2- 3711 (A)(7). BRAC Conditions Upon motion by Councilman Wood, seconded by Councilman Schmidt, City Council voted to proceed into CLOSED SESSION (5:40 P.M.) Voting: 10-0 Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R, Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, James L. Wood and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: Richard A. Maddox (Closed Session with Dinner: 5:40 P.M. - 6:43 P.M.) September 13, 2005 - 20- FORMAL SESSION VIRGINIA BEACH CITY COUNCIL September 13,2005 6:00 P.M. Mayor Meyera E. Oberndorf called to order the FORMAL SESSION of the VIRGINIA BEACH CITY COUNCIL in the Council Chamber, City Hall Building, on Tuesday, September 13, 2005, at 6:00 P.M. Council Members Present: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Absent: Richard A, Maddox [Sentara Virginia Beach General Hospital/ Bronchial Infection) INVOCA TION: Reverend James Christopher Bayside Christian Church PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA Council Lady Rosemary Wilson DISCLOSED her husband is a principal in the accountingfirm of Goodman and Company and is directly and indirectly involved in many of Goodman and Company's transactions. However, due to the size of Goodman and Company and the volume of transactions it handles in any given year, Goodman and Company has an interest in numerous matters in which her husband is not personally involved and of which she does not have personal knowledge. In order to ensure her compliance with both the letter and the spirit of the State and Local Government Conflict of Interests Act, it is her practice to thoroughly review the agenda for each meeting of City Council for the purpose of identifYing any matters in which she might have an actual or potential conflict. If, during her review she identifies any matters, she will prepare andfile the appropriate disclosure letter to be recorded in the official records of City Council. Council Lady Wilson regularly makes this disclosure, Council Lady Wilson's letter of January 27,2004, is hereby made a part of the record. Council Lady Rosemary Wilson DISCLOSED she is a real estate agent affiliated with Prudential Decker Realty. Because of the nature of Real Estate Agent affiliation, the size of Prudential, and the volume of transactions it handles in any given year, Prudential has an interest in numerous matters in which she is not personally involved and ofwhich she does not have personal knowledge. In order to ensure her compliance with both the letter and the spirit of the State and Local Government Conflict of Interests Act, it is her practice to thoroughly review the agenda for each meeting of City Council for the purpose of identifYing any matters in which she might have an actual or potential conflict, If, during her review she identifies any matters, she will prepare and file the appropriate disclosure letter to be recorded in the official records of City Council. Council Lady Wilson regularly makes ths disclosure, Council Lady Wilson's letter of January 27, 2004, is hereby made a part of the record. September 13, 2005 - 21 - Item V-E. CERTIFICATION OF CLOSED SESSION ITEM # 54370 Upon motion by Councilman Dyer, seconded by Councilman Schmidt, City Council CERTIFIED THE CLOSED SESSION TO BE IN ACCORDANCE WITH THE MOTION TO RECESS. Only public business matters lawfully exempt from Open Meeting requirements by Virginia law were discussed in Closed Session to which this certification resolution applies; AND, Only such public business matters as were identified in the motion convening the Closed Session were heard, discussed or considered by Virginia Beach City Council. Voting: 10-0 Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, James L. Wood and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: Richard A, Maddox September 13, 2005 RESOLUTION CERTIFICATION OF CLOSED SESSION VIRGINIA BEACH CITY COUNCIL WHEREAS: The Virginia Beach City Council convened into CLOSED SESSION, pursuant to the affirmative vote recorded in ITEM # 54369, page 19, and in accordance with the provisions of The Virginia Freedom of Information Act; and, WHEREAS: Section 2.2-3711(A) 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 Council hereby certifies that, to the best of each member's knowledge, (a) only public business matters lawfully exempted from Open Meeting requirements by Virginia law were discussed in Closed Session to which this certification resolution applies; and, (b) only such public business matters as were identified in the motion convening this Closed Session were heard, discussed or considered by Virginia Beach City Council. \i~~ uth Hodges Smith, MMC City Clerk September 13,2005 - 22- Item V-F.l. MINUTES ITEM # 54371 Upon motion by Councilman Dyer, seconded by Council Lady Wilson, City Council APPROVED the Minutes of the INFORMAL AND FORMAL SESSION of September 6, 2005 Voting: 10-0 Council Members Voting Aye: Harry E. Diezel, Robert M Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A, Villanueva, James L. Wood and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: Richard A. Maddox September 13, 2005 Item V-G.1. AGENDA FOR FORMAL SESSION BY CONSENSUS, City Council ADOPTED: - 23- ITEM #54372 AGENDA FOR THE FORMAL SESSION September 13, 2005 - 24- Item V-H.I. MAYOR'S INTRODUCTION ITEM #54373 Mayor Oberndorf introduced the following Boy Scouts in attendance to earn their Citizenship Badge: The Webloes Pack 362 Jesse Gartung Kevin Rapp Rhys Draughon James Gartung Den Leader Troop 944 Levi Waldron Senior Patrol Leader Clint Pollock Assistant Senior Patrol Leader John Wells Paul Crabb David Jacobs Brian Dowdy Eric Johnson Ryan Flake Lucas Gray Chris Kelly Michael Slinker Thomas Flake Scout Master Richard Sanchez Assistant Scout Master Dale Pollock Troop Committee Member George Duecker Volunteer September 13, 2005 - 25 - Item V-H.2. MAYOR'S ANNOUNCEMENT ITEM #54374 Mayor Oberndorf advised on August 30, 2005, ten (10) volunteers from Virginia Beach Rescue Squad (Station 14) traveled to Fort Lauderdale, Florida, to attend the 21st Annual International Extrication Challenge, which was joined with the 57'h Annual International Rescue and Emergency Care Association Conference, Those in attendance at the four (4) day event included career and volunteer firefighters, Emergency Medical Technicians and Paramedics from the United States, Canada, South Africa, Sweden, Germany, Turkey and the Saint Croix u.s. Virgin Islands, Participants expanded their knowledge in all areas of Emergency Medical Services and rescue and competed in various extrication challenges, including vehicle extrication and rescue, high rise rescue, Basic Life Support care and Advanced Life Support care. The Virginia Beach Volunteer Rescue Squad entered teams in Basic Life Support andAdvance Life Support categories. Rescue 14 Basic Life Support Team Captain, Jack Dye, along with rescue squad members Ann Morse, Judy Jackson and alternate Summer Pruette placed First in Basic Life Support International category. During the challenge, the team took a written Emergency Medical Technician exam and completed three (3) separate trauma scenarios involving multiple trauma victims. Rescue 14 Advanced life Support Team Captain Ann Morse, along with rescue squad members Judy Jackson, Summer Pruette and alternate, Bobby Hill, AND won the Advanced Life Support "Rocco Morando Spirit of Competition Award". During their challenge, the team took a written paramedic exam and completed two (2) separate trauma/medical scenarios involving multiple victims. Also in attendance from Virginia Beach were volunteers Barbara Moore, Jack Caviness, Amanda Lee, Gary and Linda Hoffman. Congratulations to Rescue 14 for an awesome performance! September 13, 2005 - 26- Item V-K. ORDINANCES/RESOLUTIONS ITEM # 54375 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council APPROVED IN ONE MOTION Items 1 (DEFERRED), 3a/3b, 4, 5, 6, 7, 8a/b. and 9 of the CONSENT AGENDA. Item 1 (impounded animals' adoption) was DEFERRED INDEFINITELY, BY CONSENT. Voting: 10-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M Dyer, Vice Mayor Louis R, Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, James L. Wood and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: Richard A. Maddox Councilman Dyer and Council Lady McClanan voted a VERBAL NAY on item 3.b. (Town Center) September 13, 2005 - 27- Item V-K.1. ORDINANCES/RESOLUTIONS ITEM # 54376 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council DEFERRED INDEFINITELY: Ordinance to AMEND ~ 5-71 of the City Code re the disposition of impounded animals for adoption, Voting: 10-0 (By Consent) Council Members Voting Aye: Harry E, Diezel, Robert M, Dyer, Vice Mayor Louis R, Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A, Villanueva, James L. Wood and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: Richard A. Maddox September 13, 2005 - 28- Item V-L2.aIb. ORDINANCES/RESOLUTIONS ITEM # 54377 Mayor Oberndorf read Councilman Maddox's letter dated September 13, 2005: "Honorable Members ofOty Council I regret that I am unable to be here tonight, I have been battling a bronchial infection for several weeks now and have spent the majority of today at the hospital emergency room. My absence tonight should in no way reflect a lack of support for those of you impacted by BRA Cs resolution. While I am open to suggestions and am hopeful to finding a win-win solution to dealing with BRAC and the future of Ocean a, I stand steadfast that we should not break our promise to those of you living and working in APZ one, We should not take any steps that would cost thousands of our neighbors' their homes, businesses, livelihoods or retirements. Therefore, I cannot support tonight's vote to purchase the Nearpost property in APZ2. It is not part of a comprehensive solution to BRAe's resolution. Not only is it outside the realm of APZ One... but, quite honestly, the inflated price is troubling and precedent setting. I doubt that the City would consider paying homeowners in APZ One three times what their homes are worth. Rest assured that I am watching tonight from home and will be back to work full-time as soon as possible, Sincerely, Richard Maddox" The City Manager advised during all discussions and deliberations, at staff and political levels with both the Governor and Senator Warner's office, it was made clear by the BRAC Commission members the issue of The Seasons at Birdneck Point, L.L. C. (Near Post) was extremely important to the future of air operations at NAS Oceana. The Commonwealth offered to pay fifty percent (50%) of the cost, ifsame could be acquired. The option for this property expires on September 26,2005. A closing date is scheduled for November 21, 2005, The property is directly on the centerline of the main approach runway in the APZ2 area. Concern was expressed relative the density and height of the structure The following registered to speak in OPPOSITION: Carl Strass, retired Attorney - United States Department of Justice, represented the Virginia Beach Taxpayers Alliance Marian Linett, 2432 East Chester Drive, Phone: 486-6431, twenty-nine year resident ofCheltenham Square, Janice Roller, 2444 East Chester Drive, Phone: 486-2854, currently having an addition built to existing home Joe Ferrara, Retired Navy Commander, 209 Cheltenham Drive, Phone: 572-9236, represented Cheltenham Square, Nottingham Estates and Gatewood Park David Gracie, 2532 South Adventure Trail, Phone: 486-8341, retired Navy and American Airlines Pilot, resident of Nottingham Estates Don Blanchard, 2513 South Adventure Trail, Phone: 431-1508, resident of Nottingham Estates Bartlett Techout, 2252 Potters Road, Phone: 463-9843 Mary Strickland, 441 North Adventure Trail, Phone: 431-0977, resident of Nottingham Estates Wayne Skinner, 518 22nd Street, Phone: 491-3427, represented two (2) groups (Outreach for Christ and London Bridge Baptist Church Ed Kruth (did not register), resident ofCheltenham Square September 13, 2005 - 29- Item V-K.2.a/b. ORDINANCES/RESOLUTIONS ITEM # 54377 (Continued) ADD-ON Upon motion by Vice Mayor Jones, seconded by Councilman Villanueva, City Council AUTHORIZED the City Attorney to investigate potential legal action against the BRAC Commission with regard to its conditions and findings concerning NAS Oceana. Voting: 10-0 Council Members Voting Aye: Harry E, Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, James L. Wood and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: Richard A, Maddox September 13, 2005 - 30- Item V-L2. a/b. ORDINANCES/RESOLUTIONS ITEM # 54377 (Continued) Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED: Ordinance to AUTHORIZE the City Manager to exercise the option to purchase approximately 6.1 acres from The Seasons at Birdneck Point, L.L. C. for $15,000,000 of which fifty percent (50%) shall be paid by the Commonwealth of Virginia, (DISTRICT 5 - LYNNHA VEN) Voting: 7-3 Council Members Voting Aye: Robert M. Dyer, Vice Mayor Louis R. Jones, Mayor Meyera E, Oberndorf, Peter W. Schmidt, Ron A, Villanueva, James L. Wood and Rosemary Wilson Council Members Voting Nay: Harry E. Diezel, Reba S. McClanan and Jim Reeve Council Members Absent: Richard A. Maddox September 13, 2005 1 AN ORDINANCE AUTHORIZING THE CITY 2 MANAGER TO EXERCISE THE OPTION TO 3 PURCHASE PROPERTY LOCA TED IN THE 4 L YNNHA VEN DISTRICT OF VIRGINIA BEACH 5 FROM THE SEASONS AT BIRDNECK POINT, 6 L.L.c. AND APPROPRIATING AND 7 TRANSFERRING FUNDS FOR SUCH PURCHASE 8 9 WHEREAS, The Seasons at Birdneck Point, L.L.C. ("Seasons") is owner of 10 approximately 6.1 acres of real property (the "Property") located in the Lynnhaven District of 11 Virginia Beach, Virginia (the "City"); 12 WHEREAS, the City has entered into an option agreement (the "Option 13 Agreement") dated August 17, 2005, for the purchase of the Property from Seasons; 14 WHEREAS, the Commonwealth of Virginia, on behalf ofthe City, has expended 15 $250,000 for the option fee, which applies to the $15,000,000 purchase price should the City 16 choose to exercise the option under the Option Agreement; 1 7 WHEREAS, the Commonwealth of Virginia has agreed to pay 50 % of the purchase 18 price for the Property under the Option Agreement; and 19 WHEREAS, in the opinion of the Council of the City of Virginia Beach, Virginia, a 2 0 public necessity exists for the acquisition of the Property for public purposes for the preservation 2 1 of the safety, health, peace, good order, comfort, convenience, and for the welfare of the people in 22 the City of Virginia Beach. 23 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 24 VIRGINIA BEACH, VIRGINIA, 25 1. That the City Manager or his designee is authorized to exercise the option 26 on the approximately 6.1 acres of real property (the "Property") owned by The Seasons at 27 Birdneck Point, L.L.C. and to purchase the Property for a purchase price of $15,000,000, 28 $250,000 of which has previously been paid, and 50% of which shall be paid by the 29 Commonwealth of Virginia, on the terms contained in the Option Agreement. 30 2. That the City Manager or his designee is authorized to execute all 3 1 documents that may be necessary and appropriate in connection with such purchase so long as 32 such documents are acceptable to the City Manager and the City Attorney. 33 3. That the FY 2005-06 Capital Budget is hereby amended as follows: 34 (a) That $2,300,000 is hereby appropriated from the Fund Balance 35 of the General Fund to Capital Project # 3-368 Various Site Acquisitions, with revenue from Fund 36 Balance of the General Fund increased accordingly. 37 (b) That $200,000 is hereby transferred from Capital Project # 9-076 38 Economic Development Initiatives to Capital Project #3-368 Various Site Acquisitions. 39 (c) That $5,000,000 currently available in Capital Project #3-368 40 Various Site Acquisitions, in addition to the amounts set forth in 3 (a) and (b), is hereby 4 1 authorized as the funding source for acquiring the Property. 42 Adopted by the Council of the City of Virginia Beach, Virginia, on the 13th 43 day of September, 2005. 44 45 46 47 48 49 ~~ ~(wJQ ~ 52 53 54 55 56 CA-9697 September 13, 2005 APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: Management Services F:\Data\ATY\OID\REAL ESTATE\Acquisitions\WORKING - DEEDS\NearPost\Option Exercise Ordinance,doc 2 - 31 - Item V-K.3.a. ORDINANCES/RESOLUTIONS ITEM # 54378 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED: Ordinance re Town Center to A UTHORIZE the transfer of a portion of Block 6 to the Virginia Beach Development Authority re the new Performing Arts Theatre and other future development. Voting: 10-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R, Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf Jim Reeve, Peter W Schmidt, Ron A. Villanueva, James L. Wood and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: Richard A, Maddox September 13, 2005 1 AN ORDINANCE APPROVING AND 2 AUTHORIZING (A) THE TRANSFER TO THE 3 VIRGINIA BEACH DEVELOPMENT 4 AUTHORITY PROPERTY LOCATED WITHIN 5 BLOCK 6 OF THE TOWN CENTER OF 6 VIRGINIA BEACH AND (B) OTHER 7 NECESSARY ACTIONS FOR DEVELOPMENT 8 OF THE PERFORMING ARTS THEATER 9 THEREON 10 11 WHEREAS, To.wn Center Asso.ciates, L.L.C. (the "Develo.per") and the Virginia 12 Beach Development Authority (the "Authority") are developing a Central Business District Project 13 known as "the Town Center of Virginia Beach" (the "Project"), a mixed-use commercial 14 development utilizing the structure of an economic develo.pment park in the B-3 A Pembroke 15 Center Business Co.re District, an area o.f the City of Virginia Beach which is zoned to. optimize 16 development potential for a mixed-use, pedestrian-oriented, urban activity center with mid to high- 1 7 rise structures that contain numerous types o.f uses, including business, retail, residential, 18 educational, and o.ther public and private uses; 19 WHEREAS, the Authority and the Developer have entered into a Phase II 20 Development Agreement of the Town Center of Virginia Beach, dated as of June 17, 2003, as 21 amended (the "Phase II Develo.pment Agreement") for the develo.pment of the Project; 22 WHEREAS, the City of Virginia Beach City Council endorsed the Project as the site 23 for the new performing arts theater (the "Theater Project") on December 11,2001; 24 WHEREAS, the City so.licited bids fo.r the design and construction of the Theater 25 Project under the Public Private Educatio.n Facilities and Infrastructure Act of 2002 (the "PPEA") 2 6 and entered into an agreement under the PPEA with Clancy & Theys for the design and construction 27 o.fthe Theater Project; 28 WHEREAS, Block 6 of the Project provides the necessary land for the proposed 29 Theater Project; 30 WHEREAS, a portion of Block 6 (the "City Parcel") was previously purchased by the 31 City of Virginia Beach (the "City") from the Ga1iotos family, as authorized by City Council on 32 August 12, 2003, and the balance of Block 6 (the" Authority Parcel") is currently owned by the 33 Authority, all as shown Exhibit A attached hereto; 34 WHEREAS, the Developer has released its option to purchase the Authority Parcel 35 pursuant to the Phase II Development Agreement; 36 WHEREAS, the City rezoned the City Parcel to B-3A, as authorized by the City 37 Council on May 10,2005; 38 WHEREAS, the City of Virginia Beach supports the Authority's financial 39 obligations for the Project pursuant to support agreements between the City and the Authority; and 4 0 WHEREAS, in order to facilitate the development of Block 6 for the Theater Project 41 and other purposes, the City Council desires to (1) transfer the City Parcel to the Authority and 42 cause the Authority to own all of Block 6, (2) request approval by the Authority of such transfer of 43 the City Parcel, (3) direct the Authority to divide the Block 6 property into the necessary parcels 44 for development of the Theater Project and other future development consistent with the Project, 45 and (4) direct the Authority to transfer the parcel created for development of the Theater Project 46 (the "Theater Parcel") to the City and accept such conveyance. 47 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 48 VIRGINIA BEACH, VIRGINIA, 2 49 50 TRANSFER OF CITY PARCEL TO AUTHORITY 1. The City Council, subject to acceptance by the Virginia Beach 51 Development Authority (the "Authority"), authorizes the transfer to the Authority of the portion 52 of Block 6 (the "City Parcel") previously purchased by the City of Virginia Beach (the "City") 53 from the Galiotos family. 54 2. The City Manager and the City Attorney, on behalf of the City, are 55 authorized to proceed with the development of the documents necessary and appropriate to 56 complete such transfer. 57 3. The City Manager or his designee is authorized to execute on behalf of 58 the City the documents to complete such transfer, so long as such documents are acceptable to the 59 City Manager and the City Attorney. 60 4. The City Council requests and recommends that the Authority adopt a 61 Resolution accepting the transfer of the City Parcel to the Authority. 62 DEVELOPMENT OF BLOCK 6 63 5. The City Council requests and recommends that the Authority authorize 64 the resubdivision of the Block 6 property into the necessary parcels for development of the new 65 performing arts theater (the "Theater Project") and other future development consistent with the 66 Town Center Project and substantially similar to the Concept Drawing attached as Exhibit B. 67 TRANSFER OF THEATER PARCEL TO CITY 68 6. The City Council requests and recommends that the Authority adopt a 69 Resolution authorizing the transfer of the parcel subsequently created for development of the 70 Theater Project (the "Theater Parcel") to the City. 3 71 7. The City Manager and the City Attorney, on behalf of the City, are 72 authorized to proceed with the development of the documents necessary and appropriate to 73 complete such transfer, including the acceptance of the transfer of the Theater Parcel. 74 8. The City Manager or his designee is authorized to execute on behalf of 75 the City the documents to complete such transfer, so long as such documents are acceptable to the 76 City Manager and the City Attorney. 77 Adopted by the Council of the City of Virginia Beach, Virginia, on the 13th 78 day of September ,2005. 79 80 CA-9694 8 1 September 6, 2005 82 83 84 :~ fdZ:~S7/QJNT: 88 Finance Department ~ 89 90 91 92 93 94 95 96 97 98 99 100 F:\Data\ATY\OID\REAL ESTATE\Commercial Projects\Town Center\Block 6 - Theater Parcel\Property Transfer Ord.doc 4 ~-------------------------------------------~ ~'(H\\O\' A INDEPENDENCE BOULEVARD 250' '1Z ...o<ty -, ~ 'f-- N :-' '-J .I>, <.0 ~ W (? ~. <.0 ~ ~v. ~ ~ ~ w n ~ c:r) ~O <.0 :::j c::o ~ ~o::, Q3;: Q~ ~3;: N r- ~< ~ CO 0 O:l O:l -.<r-r, ~~ r- 0 r- 0'1 Pi '" Q:::tl d'C/) 'J ~n \-0 Q ffi-r-r, ):. o;;j Qo ;g 2.C/) n ~r-r, N C")r-r, ~;;j 0'1 2'-1 0 '-r-r, r-r, "'"0 -I r,., ;:0 ~ MARKET STREET (formerly Garrett Dr.) O:l r- '" <.0 O:l r- '" 00 O:l r- '" W ~*c-- ~--------------------------------------______I - - - - - -- - -- - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - ---_. -- I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I ~ I ~ I i!: I ~ I ~ I ~ i Q( G~VJ\17n08 1:JN1GNldlGNI ~ I ~ ~ I ~ ..... ~ I$: lJ..J ~ ~ ~ ~ I ~ C5 3 U ~ ~ I _ ~ ~p >- ~ -= ~ ~ m I g: 0 ~ I :z: fu '" I ~ I I L--------_____________________________________I GJ(H I B\ -r '5 "f- a ---- "f- ,.... ---- 0) tv) ~ -.J Cl:l co ~ -J Cl:l 0'\ ~ -J Cl:l 0. -<' -0 C". c;- 111~lS 11)f~VW 0. -<' -0 C". c;- t f-.. i.J..J i.J..J ~- C/) i.J..J u- a::: i.J..J ~ ~ o 0. u -<' -,06' . ~ '" ~ O::::~ ~~ 1..L.J("Vj -..JI CO~ d~ -..IN -- :::)'- CO u ::s a ~ ~ "-I o<l t- 0. -<' -~ 6'. ~ ~ ~ Cl:l ~ -.J Cl:l f-.. i.J..J i.J..J ~ C/) ~ =2: ~ ~t 0. -<' -c; .9. 0<, 0. -<' -.9 6'. 6' ~ - 32- Item V-K.3.b. ORDINANCES/RESOLUTIONS ITEM # 54379 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED: Ordinance re Town Center to AUTHORIZE a Development Arrangement between the Virginia Beach Development Authority and Town Center Associates, L.L. C. re Phase III mixed-use commercial development in the Central Business District; and, AUTHORIZE the sale of airspace over the City's right-of- way for Columbus Street Voting: 8-2 (By Consent) Council Members Voting Aye: Harry E. Diezel, Vice Mayor Louis R, Jones, Mayor Meyera E, Oberndorf, Jim Reeve, Peter W Schmidt, Ron A, Villanueva, James L. Wood and Rosemary Wilson Council Members Voting Nay: Robert M, Dyer and Reba S. McClanan Council Members Absent: Richard A. Maddox September 13, 2005 1 ORDINANCE APPROVING DOCUMENTS FOR 2 PHASE III OF THE TOWN CENTER PROJECT, 3 RECOMMENDING APPROVAL AND 4 EXECUTION BY THE VIRGINIA BEACH 5 DEVELOPMENT AUTHORITY OF THE PHASE III 6 DOCUMENTS, AUTHORIZING THE CITY 7 MANAGER TO EXECUTE AN AGREEMENT 8 SUPPORTING THE AUTHORITY OBLIGATIONS 9 UNDER THE PHASE III DOCUMENTS AND 10 AUTHORIZING THE SALE OF AIRSPACE OVER 11 THE CITY'S RIGHT-OF-WAY FOR COLUMBUS 12 STREET AT THE TOWN CENTER PROJECT 13 14 WHEREAS, on behalf of the City of Virginia Beach (the "City") and the City of 15 Virginia Beach Development Authority (the "Authority"), the City Manager and City staff have 16 engaged in extensive negotiations with representatives of Armada/Hoffler Development Company, 1 7 L.L.C., and its affiliates, regarding the continued development of a Central Business District Project 18 known as "The Town Center of Virginia Beach" (the "Project"); 19 WHEREAS, the Project is a development arrangement between the Authority and 20 Town Center Associates, L.L.c. (the "Developer"), for a mixed-use commercial development 21 utilizing the structure of an economic development park in the B-3A Pembroke Central Business 22 Core District, an area of the City that is zoned to optimize development potential for a mixed-use, 23 pedestrian-oriented, urban activity center with mid-to-high-rise structures that contain numerous 24 types of uses, including business, retail, residential, cultural, educational and other public and private 25 uses; 26 WHEREAS, on November 23, 1999, the City Council adopted Ordinance No. 99- 27 2567B establishing the Central Business District-South Tax Increment Financing Fund (the "TIP 28 Fund"); 29 WHEREAS, Phase I of the Project has been substantially completed ,md Phase II of 30 the Project is under construction, with several blocks of Phase II substantially completed; 3 1 WHEREAS, the Developer has worked with the City Manager and City staff and has 32 proposed a comprehensive development plan for Phase III of the Project; 33 WHEREAS, by Resolution RES-031 02 adopted January 4, 2005, the City Council 34 approved a non-binding term sheet dated December 7, 2004 (the "Phase III Term Sheet"), which 35 outlined (a) minor modifications to Phase II of the Project, (b) a comprehensive development plan 36 for Phase III of the Project and (c) the proposed responsibilities of the City, the Authority and the 37 Developer with respect to Phase III of the Project; 38 WHEREAS, as recommended by such Resolution, the Authority approved the Phase 39 III Term Sheet pursuant to its Resolution adopted January 20,2005; 40 WHEREAS, the City Manager and City Attorney, on behalf of the City and the 41 Authority, have pursued the development of a Phase III Development Agreement and other related 42 Phase III documents (collectively, the "Phase III Documents") in substantial conformity with the 43 terms outlined in the Phase III Term Sheet; 44 WHEREAS, included as one of the Phase III Documents is a support agreement 45 between the City and the Authority (the "Phase III Support Agreement") pursuant to which the 46 obligations ofthe Authority contained in the Phase III Documents are supported by the City, (a) with 47 the traditional public infrastructure costs ofthe Project to be funded, in part, through the City's CIP 48 and, in part, through the Authority's Economic Development Investment Program monies and (b) 49 with the other obligations ofthe Authority structured to be paid, subject to annual appropriation, by 50 the available revenue from the TIP Fund, from the revenue generated by the special tax district and 51 by an additional mechanism for the Developer to pay certain projected shortfalls in the TIP Fund; 52 WHEREAS, included as part of the obligations ofthe Authority under the Phase III 53 Documents is the obligation to fund construction of and acquire an elevated pedestrian walkway 2 54 between Block 7 and Block 12 ofthe Project over a portion ofthe property and right-of-way known 55 as Columbus Street and owned by the City; 56 WHEREAS, Section 15.2-2030 of the Code of Virginia (1950), as amended, 57 expressly authorizes the City Council to sell airspace over any public street, lane, alley or other 58 public right-of-way; 59 WHEREAS, the City Council is ofthe opinion that it is appropriate and not contrary 60 to the rights and interests of the City of Virginia Beach in Columbus Street to sell the requested 61 airspace over Columbus Street to the Authority to accommodate the elevated pedestrian walkway 62 between Block 7 and Block 12 of the Project; 63 WHEREAS, the City Council finds that Phase III of the Project will stimulate the 64 City's economy, increase public revenues, enhance public amenities and further the City's 65 development objectives for the Central Business District and provide necessary components to 66 further the goals contained in the City's Guidelines for Evaluation of Investment Partnerships for 67 Economic Development; and 68 WHEREAS, the City Council hereby approves the Phase III Documents and desires 69 that the Authority approve and execute the Phase III Documents. 70 NOW THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 71 VIRGINIA BEACH, VIRGINIA; 72 1. The City Council approves the Phase III Development Agreement, a complete 73 copy of which is on file with the City Clerk, which implements a development arrangement between 74 the City of Virginia Beach Development Authority (the "Authority") and Town Center Associates, 75 L.L. C. (the "Developer") for the development of Phase III ofthe mixed-use commercial development 3 76 project in the Central Business District utilizing the structure of an economic development park 77 known as the "Town Center of Virginia Beach" (the "Project"). 78 2. The City Council requests and recommends that the Authority adopt a 79 Resolution consistent with this Resolution (a) approving the Phase III Development Agreement and 80 all other documents required to implement the provisions ofthe Phase III Development Agreement 81 (collectively, the "Phase III Documents"), (b) authorizing the execution of Phase III Documents, and 82 (c) authorizing the City Manager and the City Attorney, on behalf ofthe Authority, to proceed with 83 the development of any additional Phase III Documents necessary and appropriate or contemplated 84 by the Phase III Development Agreement to implement Phase III ofthe Project consistent with the 8 5 terms outlined in the Phase III Development Agreement. 86 3. On behalf of the City of Virginia Beach, the City Manager and the City 87 Attorney are hereby authorized and directed to proceed with the development of any additional Phase 88 III Documents necessary and appropriate or contemplated by the Phase III Development Agreement 89 to implement Phase III of the Project, with the Phase III Documents to contain such terms as are 90 consistent with the terms outlined in the Phase III Development Agreement. 91 4. The City Manager, or his designee, is authorized to execute and. deliver (a) the 92 Support Agreement between the City and the Authority supporting the Authority's obligations 93 contained in the Phase III Documents and (b) such other Phase III Documents to which the City is a 94 necessary party to enable the Authority to proceed with its obligations in Phase III of the Project. 95 5. The City Manager is authorized to modify the Phase III Documents to which 96 the City is a party to the extent such modifications may be technical in nature or may be necessary 97 [rom time to time, provided that after such modifications, the Phase III Documents shall remain in 4 100 98 substantial conformity with the Phase III Development Agreement and such mo~ifications are 99 acceptable to the City Attorney. 6. Pursuant to Sections 15.2-2030 and 15.2-4917 ofthe Code of Virginia (1950), 101 as amended, the City hereby approves the sale to the Authority of the areas of airspace over 102 Columbus Street through which the elevated pedestrian walkway connecting Blocks 7 and 12 of the 103 Project shall be constructed in accordance with the Phase III Documents. The City Manager is 104 authorized to convey fee simple title to such airspace (and any adjacent airspace necessary to 105 construct and maintain such walkway) to the Authority in the manner he deems in the best interest of 106 the City (including, but not limited to reserving any easements he deems necessary) so long as the 107 documents effecting such conveyance are acceptable to the City Manager and the City Attorney. 108 109 Adopted by the Council ofthe City of Virginia Beach, Virginia, on the' 3 th day 110 of September, 2005. 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 CA-9695 F:\Data\A TY\Ordin\NONCODE\Early 04 - ORDIN\town center phase IILda.doc ~OVED AS 7J. :9~ErT: J I I iatc{ ~ Finance Department 5 - 33- Item V-K.4. ORDINANCES/RESOLUTIONS ITEM # 54380 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED: Ordinance to A UTHORIZE the City Manager to execute a Memorandum of Understanding (MOU) with Access Partnership of Hampton Roads and TRANSFER $10,000 from Reserve for Contingencies to the Regional Participation FY 2005-06 Operating Budget to fund the MOU Voting: 10-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, James L. Wood and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: Richard A, Maddox September 13, 2005 1 2 3 4 5 6 7 8 9 10 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A MEMORANDUM OF UNDERSTANDING WITH ACCESS PARTNERSHIP OF HAMPTON ROADS AND TRANSFERRING $10,000 FROM RESERVE FOR CONTINGENCIES TO THE REGIONAL PARTICIPATION FY 2005-06 OPERATING BUDGET TO FUND THE MEMORANDUM OF UNDERSTANDING WHEREAS, the Virginia Beach Health Services Advisory Board 11 ("Board") was established by the Virginia Beach City Council in 12 1995 to actively participate with community representatives in the 13 formulation of a comprehensive plan for the development, 14 coordination, and evaluation of local health services systems; and 15 WHEREAS, Sentara Health Foundation is a nonprofit organization 16 dedicated to responding to the community's health care needs 17 through financial support and by proactively identifying health- 18 related needs and opportunities; and 19 WHEREAS, Sentara Health Foundation recently evaluated health 20 care needs in the Hampton Roads area and identified five critical 21 needs not being met throughout the region: 1) access to basic 22 health services; 2) access to chronic care services; 3) access to 23 mental health and substance abuse services; 4) access to maternal 24 and infant services; and 5) access to oral health. services; and 25 WHEREAS, Access Partnership of Hampton Roads ("Access") was 26 formed in 2002 with representatives from more than twenty (20) 27 nonprofit health care organizations in Hampton Roads. It is a 28 community collaboration of diverse stakeholders who share a common 29 goal of improving access to medical services to the under insured 30 and uninsured residents of Hampton Roads; and 31 WHEREAS, Access, in partnership with the Board and Sentara 32 Health Foundation, seeks to develop a community health center in 33 Virginia Beach that would target medically underserved residents; 34 and 35 WHEREAS, federal grant funding may be available through the 36 United States Department of Health and Human Services (Health 37 Resources and Services Administration, Bureau of Primary Health 38 Care) ("DHHS") to assist with the start-up and on-going costs 39 associated with building and operating a community health center in 40 Virginia Beach; and 41 WHEREAS, in an effort to secure federal grant funding, Access, 42 Sentara Health Foundation, and the Board have executed an Agreement 43 for Grant Development Services between J. Sarkiss & Associates and 44 The Access Partnership, Sentara Health Foundation, and Virginia 45 Beach Health Services Advisory Board ("Contract"); and 46 WHEREAS, pursuant to the Contract, J. Sarkiss & Associates 47 will review health-related data from neighboring community health 48 centers, provide recommendations, and assist with the planning, 49 development, and drafting of a grant application for submittal to 50 the DHHS ("Grant Application"); and 51 WHEREAS, to assist with the endeavor to develop a community 52 health center in Virginia Beach, pursuant to the terms and 53 conditions set forth in the Memorandum of Understanding, the City 54 desires to give ten thousand dollars ($10,000) to Access to be used 55 for the development and preparation of the Grant Application. 56 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 57 OF VIRGINIA BEACH, VIRGINIA: 58 The City Manager is hereby authorized and directed to 59 execute said Memorandum of Understanding on behalf of the City of 60 Virginia Beach, and ten thousand dollars ($10,000) is hereby 61 transferred from Reserve for Contingencies to the Regional 62 Participation FY 2005-06 Operating Budget to fund the Memorandum of 63 Understanding. 64 Adopted by the Council of the City of Virginia Beach, 65 Virginia, on the 13th day of September ,2005. Approved As to Content: Approved As Sufficiency: To Legal ~~/177p.( 1.<J/..;fP, -_ ~anage en Services - ~JJkp{MuJ, City Attorneys Office CA9747 H:\PA\GG\OrdRes\Sentara MOU Ord R-1 August 31, 2005 Memorandum of Understanding Between the City of Virginia Beach and Access Partnership of Hampton Roads SUMMARY OF TERMS Purpose: Outlines the terms and conditions for the City of Virginia Beach ("City") to give $10,000 to Access Partnership of Hampton Roads ("Access") for the development and preparation of a grant application. The grant application may be filed with the United Stated Department of Health and Human Services to apply for federal grant funding to assist with the start-up and on-going costs associated with building and operating a community health center in Virginia Beach. Parties: City of Virginia Beach and Access Partnership of Hampton Roads Responsibilities of the City: . Give ten thousand dollars ($10,000.00) for the development and preparation of a grant application. Responsibilities of Access: . Apply all funds received from the City toward the payment of professional fees for grant development services. . Provide an executed copy of the contract for professional services between J. Sarkiss & Associates and Access, Sentara Health Foundation, and the Virginia Beach Health Services Advisory Board ("Contract"). . Provide a receipt evidencing Access' payment of professional fees under the Contract. . Provide copies of all deliverables required under the Contract, including, but not limited to, draft copies of a grant application and the final application package. . Provide data relating to the impact of a community health center on the City. . Access may not assign its rights and obligations under the Memorandum of Understanding without the prior written consent of the City MEMORANDUM OF UNDERSTANDING This Memorandum of Understanding ("MOU") made and entered into as of this _ day of , 2005, by and between the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia ("City"), and ACCESS PARTNERSHIP, a nonprofit organization that has applied for tax exempt status under section 501 (c)(3) of the United States Internal Revenue Code ("Access"). RECITALS A. The Virginia Beach Health Services Advisory Board ("Board") was established by the Virginia Beach City Council in 1995 to actively participate with community representatives in the formulation of a comprehensive plan for the development, coordination, and evaluation of local health services systems. B. Sentara Health Foundation is a nonprofit organization dedicated to responding to the community's health care needs through financial support and by pro actively identifying health-related needs and opportunities. e. Sentara Health Foundation has recently evaluated health care needs in the Hampton Roads area and has identified five critical needs not being met throughout the region: 1) access to basic health services; 2) access to chronic care services; 3) access to mental health and substance abuse services; 4) access to maternal and infant services; and 5) access to oral health services. D. Access was formed in 2002 with representatives from more than twenty (20) nonprofit health care organizations in Hampton Roads. It is a community collaboration of diverse stakeholders who share a common goal of improving access to medical services to the underinsured and uninsured residents of Hampton Roads. E. Access, in partnership with the Board and Sentara Health Foundation, seeks to develop a community health center in Virginia Beach that would target medically underserved residents. F. Federal grant funding may be available through the United States Department of Health and Human Services (Health Resources and Services Administration, Bureau of Primary Health Care) ("DHHS") to assist with the start-up and on-going costs associated with building and operating a community health center in Virginia Beach. G. In an effort to secure federal grant funding, Access, Sentara Health Foundation, and the Board have executed an Agreement for Grant Development Services Between J. Sarkiss & Associates and The Access Partnership, Sentara Health Foundation, and Virginia Beach Health Services Advisory Board ("Contract"). H. Pursuant to the Contract, J. Sarkiss & Associates will review health- related data from neighboring community health centers, provide recommendations, and assist with the planning, development, and drafting of a grant application for submittal to the DHHS ("Grant Application"). AGREEMENT The parties to this MOU, for and in consideration of the mutual efforts to support and promote improved access to primary health care services for uninsured and underinsured residents of Virginia Beach, agree as follows: Section 1 - Obligation of the City The City shall give ten thousand dollars ($10,000) to Access to be used for the development and preparation of a Grant Application (the "funds"). The City shall have no additional obligations under this MOD. The funds shall be expended by Access as set forth in Section 2. Section 2 - Obligations of Access A. Expenditure of the Funds Access shall apply all funds received from the City towards the payment of professional fees for grant development services, pursuant to the Contract. B. Documentation Provided to City Access shall provide copies of the following documents to the City: 1. An executed copy of the Contract. 2. A receipt evidencing Access's payment of professional fees under the Contract. 3. Copies of all deliverables required under the Contract, including, but not limited to, draft copies of a grant application and the final application package. 4. Any data relating to the impact of a community health center on the City. Access shall provide the above-listed documentation to the City as soon as such documentation becomes available to Access. C. No Obligation to Reimburse the Funds Provided that Access complies with Section 2 (A) above, Access shall not be responsible for returning or reimbursing the funds given to Access by the City under this MOD. Section 3 - Non-Assignment Access shall not assign its rights and obligations under this MOU without the prior written consent of the City. 2 Section 4 - Applicable Law and Venue This MOU shall be deemed to be a Virginia contract and shall be governed as to all matters, including but not limited to validity, interpretations, obligations, performance, or otherwise, exclusively by the laws of the Commonwealth of Virginia. Any and all suits for any claims and for any and every breach or dispute arising out of this MOU shall be maintained in the appropriate court of competent jurisdiction in the City of Virginia Beach. Section 5 - Documentation Any documentation, correspondence, or notices required or permitted to be given pursuant to this MOU shall be given by certified mail, postage prepaid, return receipt requested as follows: To the City: Attention: Susie Walston City of Virginia Beach City Manager's Office Municipal Center-Building 1 2401 Courthouse Drive Virginia Beach, VA 23456-9004 To Access: Attention: Gina Pitrone Access Partnership P.O. Box 41093 Norfolk, Virginia 23541 Section 6 - Independent Contractors In performance of this MOU, both the City and Access will be acting in an individual capacity and not as agents, employees, partners or joint venturers, or associates of one another. The agents and employees of one shall not be construed to be agents or employees of the other. The City shall have no liability with respect to any financial obligations incurred by Access. Section 7 - Entire Agreement The parties agree that this MOU constitutes the entire agreement of the parties and that there may be no modification of this MOU, except in writing, executed by the authorized representatives of the City and Access. The terms and provisions of this MOU shall be binding upon and will inure to the benefit of the parties, their respective successors, and aSSIgns. As evidence of their agreement to the terms and conditions set forth herein, the parties affix their authorized signatures hereto: 3 Access Partnership of Hampton Roads, Inc. By: Title: City of Virginia Beach By: City Manager/Authorized Designee Approved as to Content: ,JlltUll) ~JL- Office of City Manager 4 Approved as to Legal Sufficiency: ~~:~~ce - 34- Item V-K.5. ORDINANCES/RESOLUTIONS ITEM # 54381 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED: Ordinance to ESTABLISH the National Incident Management System (NIMS) re standards for incident management re federal preparedness assistance Voting: 10-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, James L. Wood and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: Richard A. Maddox September 13, 2005 1 AN ORDINANCE TO ESTABLISH THE 2 NATIONAL INCIDENT MANAGEMENT SYSTEM 3 AS THE CITY STANDARD FOR INCIDENT 4 MANAGEMENT 5 WHEREAS, the President in Homeland Security Directive (HSPD)- 6 5, directed the Secretary of the Department of Homeland Security to 7 develop and administer a National Incident Management System 8 (NIMS), which would provide a consistent nationwide approach for 9 Federal, State, and local governments to work together more 10 effectively and efficiently to prevent, prepare for, respond to and 11 recover from domestic incidents, regardless of cause, size or 12 complexitYi 13 WHEREAS, the collective input and guidance from all Federal, 14 State, and local homeland security partners has been, and will 15 continue to be, vital to the development, effective implementation 16 and utilization of a comprehensive NIMSi 17 WHEREAS, it is necessary and desirable that all Federal, 18 State, and local emergency agencies and personnel coordinate their 19 efforts to effectively and efficiently provide the highest levels 20 of incident management; 21 WHEREAS, to facilitate the most efficient and effective 22 incident management it is critical that Federal, State, and local 23 organizations utilize standardized terminology, standardized 24 organizational structures, interoperable communications, 25 consolidated action plans, unified command structures, uniform 26 personnel qualification standards, uniform standards for planning, 27 training, and exercising, comprehensive resource management, and 28 designated incident facilities during emergencies or disasters; 29 WHEREAS, the NIMS standardized procedures for managing 30 personnel, communications, facilities and resources will improve 31 the city's ability to utilize federal funding to enhance local 32 agency readiness, maintain first responder safety, and streamline 33 incident management processes, 34 WHEREAS, the Incident Command System components of NIMS are 35 already an integral part of various city incident management 36 activities, including current emergency management training 37 programs; and 38 WHEREAS, the National Commission on Terrorist Attacks (9-11 39 Commission) recommended adoption of a standardized Incident Command 40 System. 41 NOW, THEREFORE, BE IT HEREBY ORDAINED by the City Council of 42 the City of Virginia Beach, Virginia: 43 That the National Incident Management System (NIMS) is 44 established as the City standard for incident management. 45 Adopted by the Council of the City of Virginia Beach, 46 Virginia, on the 13th day of September, 2005. SUMMARY OF MATERIAL TERMS 1. EVENT - Any National Disaster. 2. NATIONAL INCIDENT MANAGEMENT SYSTEM - A program that creates consistency between public safety responders at all levels of government from local and state to federal. Implementation includes on-line training of people involved in the management of the NIMS system, such as City Directors, Managers and Emergency Service Supervisors. The next step to certification is the formal adoption of NIMS at the local level. An initial NIMS compliance assessment has been completed and ongoing assessments for NIMS compliance continue. Lastly, institutionalizing of the Incident Command System through such programs as Train the Trainer. 3. NATURE - The National Incident Management System (NIMS) was developed by the Secretary of Homeland Security at the request of the President of the United States. NIMS integrates effective practices in emergency preparedness and response into a comprehensive national framework for incident management. The NIMS will enable responders at all levels to work together more effectively to manage domestic incidents no matter what the cause, size or complexity. This ordinance adopts NIMS as the City's standard for incident management. 4. TERM - There is no legally binding duration to the adoption ofNIMS. 5. COST - There will only be nominal costs associated with training for emergency services personnel. Future cost to be assessed after the Federal Government defines the parameters ofNIMS compliance status for localities. 6. FUNDING - In order to be eligible for various Homeland Security grants, localities must adopt these procedures. 7. LIABILITY - No additional liability is associated with this program. 8. DURATION - The City's association with this program may be terminated at any time. Homeland Security Presidential Directive/HSPD-5 Subject: Management of Domestic Incidents Purpose (1) To enhance the ability of the United States to manage domestic incidents by establishing a single, comprehensive national incident management system, Definitions (2) In this directive: (a) the term "Secretary" means the Secretary of Homeland Security. (b) the term "Federal departments and agencies" means those executive departments enumerated in 5 U.S.C. 101, together with the Department of Homeland Security; independent establishments as defined by 5 U.S.C. 104(1); government corporations as defined by 5 U.S.C. 103(1); and the United States Postal Service. (c) the terms "State," "local," and the "United States" when it is used in a geographical sense, have the same meanings as used in the Homeland Security Act of 2002, Public Law 107-296. Policy (3) To prevent, prepare for, respond to, and recover from terrorist attacks, major disasters, and other emergencies, the United States Government shall establish a single, compre-hensive approach to domestic incident management. The objective of the United States Government is to ensure that all levels of government across the Nation have the capability to work efficiently and effectively together, using a national approach to domestic incident management. In these efforts, with regard to domestic incidents, the United States Government treats crisis management and consequence management as a single, integrated function, rather than as two separate functions, (4) The Secretary of Homeland Security is the principal Federal official for domestic incident management. Pursuant to the Homeland Security Act of 2002, the Secretary is responsible for coordinating Federal operations within the United States to prepare for, respond to, and recover from terrorist attacks, major disasters, and other emergencies, The Secretary shall coordinate the Federal Government's resources utilized in response to or recovery from terrorist attacks, major disasters, or other emergencies if and when anyone of the following four conditions applies: (1) a Federal department or agency acting under its own authority has requested the assistance of the Secretary; (2) the resources of State and local authorities are overwhelmed and Federal assistance has been requested by the appropriate State and local authorities; (3) more than one Federal department or agency has become substantially involved in responding to the incident; or (4) the Secretary has been directed to assume responsibility for managing the domestic incident by the President. (5) Nothing in this directive alters, or impedes the ability to carry out, the authorities of Federal departments and agencies to perform their responsibilities under law. All Federal departments and agencies shall cooperate with the Secretary in the Secretary's domestic incident management role. (6) The Federal Government recognizes the roles and responsibilities of State and local authorities in domestic incident management. Initial responsibility for managing domestic incidents generally falls on State and local authorities. The Federal Government will assist State and local authorities when their resources are overwhelmed, or when Federal interests are involved. The Secretary will coordinate with State and local governments to ensure adequate planning, equipment, training, and exercise activities, The Secretary will also provide assistance to State and local governments to develop all-hazards plans and capabilities, including those of greatest importance to the security of the United States, and will ensure that State, local, and Federal plans are compatible. (7) The Federal Government recognizes the role that the private and nongovernmental sectors play in preventing, preparing for, responding to, and recovering from terrorist attacks, major disasters, and other emergencies, The Secretary will coordinate with the private and nongovernmental sectors to ensure adequate planning, equipment, training, and exercise activities and to promote partnerships to address incident management capabilities, (8) The Attorney General has lead responsibility for criminal investigations of terrorist acts or terrorist threats by individuals or groups inside the United States, or directed at United States citizens or institutions abroad, where such acts are within the Federal criminal jurisdiction of the United States, as well as for related intelligence collection activities within the United States, subject to the National Security Act of 1947 and other applicable law, Executive Order 12333, and Attorney General-approved procedures pursuant to that Executive Order. Generally acting through the Federal Bureau of Investigation, the Attorney General, in cooperation with other Federal departments and agencies engaged in activities to protect our national security, shall also coordinate the activities of the other members of the law enforcement community to detect, prevent, preempt, and disrupt terrorist attacks against the United States. Following a terrorist threat or an actual incident that falls within the criminal jurisdiction of the United States, the full capabilities of the United States shall be dedicated, consistent with United States law and with activities of other Federal departments and agencies to protect our national security, to assisting the Attorney General to identify the perpetrators and bring them to justice. The Attorney General and the Secretary shall establish appropriate relationships and mechanisms for cooperation and coordination between their two departments. (9) Nothing in this directive impairs or otherwise affects the authority of the Secretary of Defense over the Department of Defense, including the chain of command for military forces from the President as Commander in Chief, to the Secretary of Defense, to the commander of military forces, or military command and control procedures, The Secretary of Defense shall provide military support to civil authorities for domestic incidents as directed by the President or when consistent with military readiness and appropriate under the circumstances and the law. The Secretary of Defense shall retain command of military forces providing civil support. The Secretary of Defense and the Secretary shall establish appropriate relationships and mechanisms for cooperation and coordination between their two departments, (10) The Secretary of State has the responsibility, consistent with other United States Government activities to protect our national security, to coordinate international activities related to the prevention, preparation, response, and recovery from a domestic incident, and for the protection of United States citizens and United States interests overseas, The Secretary of State and the Secretary shall establish appropriate relationships and mechanisms for cooperation and coordination between their two departments. (11) The Assistant to the President for Homeland Security and the Assistant to the President for National Security Affairs shall be responsible for interagency policy coordination on domestic and international incident management, respectively, as directed by the President. The Assistant to the President for Homeland Security and the Assistant to the President for National Security Affairs shall work together to ensure that the United States domestic and international incident management efforts are seamlessly united, (12) The Secretary shall ensure that, as appropriate, information related to domestic incidents is gathered and provided to the public, the private sector, State and local authorities, Federal departments and agencies, and, generally through the Assistant to the President for Homeland Security, to the President. The Secretary shall provide standardized, quantitative reports to the Assistant to the President for Homeland Security on the readiness and preparedness of the Nation -- at all levels of government -- to prevent, prepare for, respond to, and recover from domestic incidents. (13) Nothing in this directive shall be construed to grant to any Assistant to the President any authority to issue orders to Federal departments and agencies, their officers, or their employees. Tasking (14) The heads of all Federal departments and agencies are directed to provide their full and prompt cooperation, resources, and support, as appropriate and consistent with their own responsibilities for protecting our national security, to the Secretary, the Attorney General, the Secretary of Defense, and the Secretary of State in the exercise of the individual leadership responsibilities and missions assigned in paragraphs (4), (8), (9), and (10), respectively, above. (15) The Secretary shall develop, submit for review to the Homeland Security Council, and administer a National Incident Management System (NIMS). This system will provide a consistent nationwide approach for Federal, State, and local governments to work effectively and efficiently together to prepare for, respond to, and recover from domestic incidents, regardless of cause, size, or complexity, To provide for interoperability and compatibility among Federal, State, and local capabilities, the NIMS will include a core set of concepts, principles, terminology, and technologies covering the incident command system; multi-agency coordination systems; unified command; training; identification and management of resources (including systems for classifying types of resources); qualifications and certification; and the collection, tracking, and reporting of incident information and incident resources. (16) The Secretary shall develop, submit for review to the Homeland Security Council, and administer a National Response Plan (NRP). The Secretary shall consult with appropriate Assistants to the President (including the Assistant to the President for Economic Policy) and the Director of the Office of Science and Technology Policy, and other such Federal officials as may be appropriate, in developing and implementing the NRP, This plan shall integrate Federal Government domestic prevention, preparedness, response, and recovery plans into one all- discipline, all-hazards plan. The NRP shall be unclassified. If certain operational aspects require classification, they shall be included in classified annexes to the NRP. (a) The NRP, using the NIMS, shall, with regard to response to domestic incidents, provide the structure and mechanisms for national level policy and operational direction for Federal support to State and local incident managers and for exercising direct Federal authorities and responsibilities, as appropriate. (b) The NRP will include protocols for operating under different threats or threat levels; incorporation of existing Federal emergency and incident management plans (with appropriate modifications and revisions) as either integrated components of the NRP or as supporting operational plans; and additional opera-tional plans or annexes, as appropriate, including public affairs and intergovernmental communications. (c) The NRP will include a consistent approach to reporting incidents, providing assessments, and making recommendations to the President, the Secretary, and the Homeland Security Council. (d) The NRP will include rigorous requirements for continuous improvements from testing, exercising, experience with incidents, and new information and technologies. (17) The Secretary shall: (a) By April 1 , 2003, (1) develop and publish an initial version of the NRP, in consultation with other Federal departments and agencies; and (2) provide the Assistant to the President for Homeland Security with a plan for full development and implementation of the NRP. (b) By June 1, 2003, (1) in consultation with Federal departments and agencies and with State and local governments, develop a national system of standards, guidelines, and protocols to implement the NIMS; and (2) establish a mechanism for ensuring ongoing management and maintenance of the NIMS, including regular consultation with other Federal departments and agencies and with State and local governments. (c) By September 1, 2003, in consultation with Federal departments and agencies and the Assistant to the President for Homeland Security, review existing authorities and regulations and prepare recommendations for the President on revisions necessary to implement fully the NRP. (18) The heads of Federal departments and agencies shall adopt the NIMS within their departments and agencies and shall provide support and assistance to the Secretary in the development and maintenance of the NIMS. All Federal departments and agencies will use the NIMS in their domestic incident management and emergency prevention, preparedness, response, recovery, and mitigation activities, as well as those actions taken in support of State or local entities. The heads of Federal departments and agencies shall participate in the NRP, shall assist and support the Secretary in the development and maintenance of the NRP, and shall participate in and use domestic incident reporting systems and protocols established by the Secretary. (19) The head of each Federal department and agency shall: (a) By June 1, 2003, make initial revisions to existing plans in accordance with the initial version of the NRP. (b) By August 1, 2003, submit a plan to adopt and implement the NIMS to the Secretary and the Assistant to the President for Homeland Security, The Assistant to the President for Homeland Security shall advise the President on whether such plans effectively implement the NIMS. (20) Beginning in Fiscal Year 2005, Federal departments and agencies shall make adoption of the NIMS a requirement, to the extent permitted by law, for providing Federal preparedness assistance through grants, contracts, or other activities. The Secretary shall develop standards and guidelines for determining whether a State or local entity has adopted the NIMS. Technical and Conforming Amendments to National Security Presidential Directive-1 (NSPD-1) (21) NSPD-1 ("Organization of the National Security Council System") is amended by replacing the fifth sentence of the third paragraph on the first page with the following: "The Attorney General, the Secretary of Homeland Security, and the Director of the Office of Management and Budget shall be invited to attend meetings pertaining to their responsibilities.". Technical and Conforming Amendments to National Security Presidential Directive-8 (NSPD-8) (22) NSPD-8 ("National Director and Deputy National Security Advisor for Combating Terrorism") is amended by striking "and the Office of Homeland Security," on page 4, and inserting "the Department of Homeland Security, and the Homeland Security Council" in lieu thereof, Technical and Conforming Amendments to Homeland Security Presidential Directive-2 (HSPD-2) (23) HSPD-2 ("Combating Terrorism Through Immigration Policies") is amended as follows: (a) striking "the Commissioner of the Immigration and Naturalization Service (INS)" in the second sentence of the second paragraph in section 1, and inserting "the Secretary of Homeland Security" in lieu thereof; (b) striking "the INS," in the third paragraph in section 1, and inserting "the Department of Homeland Security" in lieu thereof; (c) inserting ", the Secretary of Homeland Security," after "The Attorney General" in the fourth paragraph in section 1; (d) inserting ", the Secretary of Homeland Security," after "the Attorney General" in the fifth paragraph in section 1; (e) striking "the INS and the Customs Service" in the first sentence of the first paragraph of section 2, and inserting "the Department of Homeland Security" in lieu thereof; (f) striking "Customs and INS" in the first sentence of the second paragraph of section 2, and inserting "the Department of Homeland Security" in lieu thereof; (g) striking "the two agencies" in the second sentence of the second paragraph of section 2, and inserting "the Department of Homeland Security" in lieu thereof; (h) striking "the Secretary of the Treasury" wherever it appears in section 2, and inserting "the Secretary of Homeland Security" in lieu thereof; (i) inserting ", the Secretary of Homeland Security," after "The Secretary of State" wherever the latter appears in section 3; U) inserting ", the Department of Homeland Security," after "the Department of State," in the second sentence in the third paragraph in section 3; (k) inserting "the Secretary of Homeland Security," after "the Secretary of State," in the first sentence of the fifth paragraph of section 3; (I) striking "INS" in the first sentence of the sixth paragraph of section 3, and inserting "Department of Homeland Security" in lieu thereof; (m) striking "the Treasury" wherever it appears in section 4 and inserting "Homeland Security" in lieu thereof; (n) inserting ", the Secretary of Homeland Security," after "the Attorney General" in the first sentence in section 5; and (0) inserting ", Homeland Security" after "State" in the first sentence of section 6, Technical and Conforming Amendments to Homeland Security Presidential Directive-3 (HSPD-3) (24) The Homeland Security Act of 2002 assigned the responsibility for administering the Homeland Security Advisory System to the Secretary of Homeland Security. Accordingly, HSPD- 3 of March 11, 2002 ("Homeland Security Advisory System") is amended as follows: (a) replacing the third sentence of the second paragraph entitled "Homeland Security Advisory System" with "Except in exigent circumstances, the Secretary of Homeland Security shall seek the views of the Attorney General, and any other federal agency heads the Secretary deems appropriate, including other members of the Homeland Security Council, on the Threat Condition to be assigned." (b) inserting "At the request of the Secretary of Homeland Security, the Department of Justice shall permit and facilitate the use of delivery systems administered or managed by the Department of Justice for the purposes of delivering threat information pursuant to the Homeland Security Advisory System." as a new paragraph after the fifth paragraph of the section entitled "Homeland Security Advisory System." (c) inserting ", the Secretary of Homeland Security" after "The Director of Central Intelligence" in the first sentence of the seventh paragraph of the section entitled "Homeland Security Advisory System". (d) striking "Attorney General" wherever it appears (except in the sentences referred to in subsections (a) and (c) above), and inserting "the Secretary of Homeland Security" in lieu thereof; and (e) striking the section entitled "Comment and Review Periods." GEORGE W. BUSH ') - 35 - Item V-K.6. ORDINANCES/RESOLUTIONS ITEM # 54382 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED: Ordinance to AUTHORIZE the City Manager to execute a First Amendment Lease Agreement between Stumpy Lake Golf Course, Incorporated, for the release of approximately 4,2 acres re returning the land to the City for Stumpy Lake natural area improvements re birding trails, Voting: 10-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva, James L. Wood and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: Richard A, Maddox September 13, 2005 1 AN ORDINANCE APPROVING THE FIRST 2 AMENDMENT TO LEASE AGREEMENT 3 WHICH RELEASES 4.2 ACRES OF LAND 4 FROM THE ORIGINAL LEASE OF CITY LAND 5 BETWEEN THE CITY AND STUMPY LAKE 6 GOLF COURSE, INCORPORATED 7 8 9 WHEREAS, the City of Virginia Beach, Virginia (the "City") is the owner of 10 approximately 300.25 acres of land generally known as Stumpy Lake, which was 11 acquired from the City of Norfolk (the "Property"); 12 WHEREAS, pursuant to that certain Agreement of Lease (the "Lease") 13 dated October 1, 2001, the City leased the Property to Stumpy Lake Golf Course, 14 Incorporated (the "Lessee") for the operation and management of the Stumpy Lake 15 Golf Course; and 16 WHEREAS, the City has identified approximately 4.2 acres of the Property 17 in its Stumpy Lake Natural Area Master Land Use and Management Plan for the 18 development of birding trails. 19 WHEREAS, the City has requested and the Lessee has agreed to release 20 from the Lease the hatched portion of the Property designated on EXHIBIT A 21 attached hereto as "Release Area, approximately 4.2 acres" (the "Release Area"). 22 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE 23 CITY OF VIRGINIA BEACH, VIRGINIA: 24 25 That the City Manager is hereby authorized to execute a First Amendment 26 to Lease Agreement between Stumpy Lake Golf Course, Incorporated and the City, for 27 the release of approximately 4.2 acres of land as shown on Exhibit A attached hereto 28 and made a part hereof and in accordance with the First Amendment to Lease 29 Agreement attached hereto and such other terms, conditions or modifications as may 30 be satisfactory to the City Attorney and the City Manager. 31 Adopted by the Council of the City of Virginia Beach, Virginia on the 1 3 thiay of September ,2005. 32 CA9691 August 31 , 2005 33 APPROVED AS TO CONTENTS: 34 35~ ;~ Si9W'L-) 38 39 Parks and Recreation Department 40 41 42 43 H\OID\REAL ESTATE\LEASES\STUMPY LAKE\Ordinance.doc 44 Exhibit A . PIN (F) + CORNER NOT SET STUMPY lAKE LINE DATA CHART NUMBER DIRECTION DISTA~ L1 S 23'53'38" E 30.57' ! L2 S 77.13'08" W 1278.4 L3 S 02'37'13" E 302,ZC L4 S 74.38'45" W 30.72' L5 N 02.37 13" W 307'50 L6 N 77.13'08" E 1272.5 L7 N 74.38'45" E Z07.91 L8 S 10'04'07" E 283,31 L9 S 17'55'45" E 390,17 L10 S 30.10'48".E 682.61 111 S 30.36'37" E 1356.ZI L12 S 63'41'19" E 208.17 L13 S 41.23'43" E 363,27 L14 S 09.34'41" E 167.56' L15 S 53.07'00" E 128.71 L16 S 46.45'47" E 538.76' L17 S 12.09'51" W 111.95' L18 S 15.Z2'38" E 420,60' L19 S 04.20'17" E 482.0Z' LZO S 59.30'47" W 244.61' LZl N 56.Z5'19" W 764.09' LZZ N 84.43'Z1" W 388.36' LZ3 N 73'13'24" W 58Z.56' LZ4 S 76.01'59" W 1097.3~ L25 S 79'14'00" W 73Z,78' L26 N 49'23'10" W 768,05' L27 S 20'41'14" W 143.15' L28 N 84.03'03" W 143.56' L29 N 11.34'12" W 756,41' L30 N 02.09'37"E 473.53' L31 N 41"05'13" E 185,57' L32 N 09'49'16" E 540,64' L33 N 04.30'54" W 113.44' L34 N 20'32'51" E 127.13' L35 N 22'50'34" W 452,11' L36 N 13'35'13" W 747.07' L37 N 06.35'35" E '10,09' L38 N 61'51'57" E 97.83' L39 N 00.50'37" W 101,19' L40 N 74.30'33" E 456.86' L41 N 83'26'42" E 443,16' L42 N 80'05'04" E 406,17' L43 N 66.07'32" E 268.37' L44 N 52'25'38" E 44.65' L45 S 19.11'42" E 171.79' L46 N 74'38 45" E 378.20' L47 N 74'38'45" E 616,83' L37 :t '" 1:;;-0 >-co '" '" ","'- ~~ ZO'I B~ ~Cl 0< 82 '" ",' ZZ ~2 "':r: ~1- 1:;;6 . '" ;;; LEGEND INGRESS IEGRESS 'Re~ Area., ~O~' tt.2..acre~ ~ L41 o "" ....J STUMPY lAKE NOTE: 1. MERIDIAN SOURCE IS BASED ON VA STATE PLANE COORDINATE SYSTEM, SOUTH ZONE, NAD 1983416. COORDINATES SHOWN ARE EXPRESSED IN INTERNATIONAl FEET (ONE FOOT EQUAL 0.3048 METERS). 2. TOPOGRAPHIC FEATURES SHOWN HEREON ARE REFERENCED FROM THE CITY OF VIRGINIA BEACH CENTER FOR GIS. NUMBER RADIUS ARC LENGTH ~. 53,00 76.45 (2"- 23.00-33,18 CURVE DATA CHART DEL T A ANGLE CHORD D I RECTI ON CHORD 82'39'00" N 35.53'39" E 69.99 82'39'00" S 35'53'39" W30.38 LENGTH TANGENT 46.60 20.22 SCALE 1" = 700' I I 0' 700' 1400' EXHIBIT SHOWING STUMPY tAKE GOLF COURSE LEASE PROPERlY FOR STUMPY LAKE GOLF COURSE VIRGINIA BEACH, VIRGINIA !'11 SURVEY BUREAU · ENGINEERING DIVISION . DEPARTMENT OF PUBtlC WORKS · C/lY OF VIRGINIA BEACH, VIRGINIA III DATE: JUNE 23,2005 . j ISO.~1" = 700' IIDRAWN BY: DLWII HELD BOOK: FOS IIFH.F' ~!Z~qNTAL 1 hR FIRST AMENDMENT TO LEASE AGREEMENT THIS FIRST AMENDMENT TO LEASE AGREEMENT (the "Amendment") is made as of the _ day of , 2005 between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation of the Commonwealth of Virginia ("City"), and STUMPY LAKE GOLF COURSE, INCORPORATED, a Virginia corporation ("Lessee"). RECITALS 1. Pursuant to that certain Lease dated October 1, 2001, between the City and Lessee (the "Lease"), City leased to Lessee certain premises described in the Lease and shown on the exhibit attached to the Lease as Exhibit A ("the Premises"). 2. City has requested and Lessee has agreed to release from the Lease the hatched portion of the Premises designated on Exhibit A attached hereto as "Release Area, approx. 4.2 acres" (the "Release Area"). 3. City and Lessee have agreed to certain necessary modifications to the Lease resulting from the release of the Release Area. NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. RELEASE OF RELEASE AREA. As of the "Effective Date" (as defined below), the Release Area is hereby released from the Lease, and the term "Premises", as used in the Lease, is hereby modified to mean the Premises described on Exhibit A attached hereto as "STUMPY LAKE GOLF COURSE LEASE PARCEL 12,895,115 SQ. FT. OR 296.03111 ACRES PART OF GPIN 1464-78-8948." 2. EFFECTIVE DATE. The Effective Date of this Amendment IS ,2005. 3. MISCELLANEOUS. Except as expressly modified by this Amendment, the Lease shall remain in full force and effect. In the event of a conflict between the terms, conditions, and provisions of the Lease and this Amendment, the terms, conditions and provisions of this Amendment shall prevail. (REMAINDER OF P AGE INTENTIONALLY LEFT BLANK) A-I WITNESS the following signatures and seals: APPROVED AS TO CONTENT: CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia By: City Manager/Authorized Designee ATTEST: By: City Clerk STUMPY LAKE GOLF COURSE, INCORPORATED, a Virginia corporation By: Title: Date: APPROVED AS TO FORM AND LEGAL SUFFICIENCY: A-2 (SEAL) EXHIBIT A [SEE ATTACHED SKETCH] II:\OID\REAL EST A TE\LEASES\STUMPY LAKE\First Amendment to Lease.doc A-3 - 36- Item V-I. 7. ORDINANCES/RESOLUTIONS ITEM # 54383 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED: Ordinance to ACCEPT and APPROPRIATE $897,000 from the Federal Emergency Management Agency (FEMA) to the Fire Department's Operating Budget re continued operation of the Virginia Task Force 2 Urban Search and Rescue Team. Voting: 10-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, James L. Wood and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: Richard A. Maddox September 13, 2005 1 2 3 4 5 6 7 8 9 AN ORDINANCE TO ACCEPT AND APPROPRIATE $897,000 FROM THE FEDERAL EMERGENCY MANAGEMENT AGENCY TO THE FIRE DEPARTMENT'S FY 2005-06 OPERATING BUDGET FOR CONTINUED OPERATION OF THE VIRGINIA TASK FORCE 2 URBAN SEARCH AND RESCUE TEAM. WHEREAS, the Federal Emergency Management Agency has 10 approved $897,000 in financial assistance for the continued 11 operation of the Virginia Task Force 2 Urban Search and Rescue 12 Team. 13 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 14 OF VIRGINIA BEACH, VIRGINIA: 15 1) That $897,000 in additional federal revenue is hereby 16 accepted from the Federal Emergency Management Agency and 17 appropriated to the FY 2005-06 Operating Budget of the Fire 18 Department to cover costs associated with the Virginia Task 19 Force 2 Urban Search and Rescue Team, with federal revenue 20 increased accordingly. 21 2) That 3.25 positions are maintained in the FY 2005-06 22 Operating Budget of the Fire Department; provided however that 23 these positions shall be eliminated if federal grant revenue for 24 the positions is eliminated. 25 Accepted by the Council of the City of Virginia Beach, 26 Virginia on the 13th day of September , 2005. Approved as to Content Approved as to Legal Sufficiency , 'r\~~'~ anagement Services / JJj~!!~j City Attorney's Office CA9748 H:\PA\GG\OrdRes\FEMA Annual Grant Ord R-2 September 2, 2005 , ASSISTANCE INSTRUMENT 2. TYPE OF ACTION o COOPERATIVE AGREEMENT o GRANT o AWARD 0 AMENDMENT I. INSTRUMENT NUMBER 4. AMENDMENT NUMBER 5, EfFECTIVE DATE ul6, CONTROL NUMBER EMW-2005-CA-0251 See Block 21 W384568Y '. RECIPIENT NAME AND ADDRESS 8. ISSUING/ADMINISTRATION OFFICE ty of Virginia Beach - VA TF-2 Federal Emergency Management Agency .tn: City Manager James Spore Financial & Acquisition Management Div .3 viking Drive Grants Management Branch 500 C Street, S.W., Room 350 Washington DC 20472 rginia Beach VA 23452 Specialist: Marilynn Grim (202) 646-3459 I. RECIPIENT PROJECT MANAGER 10, FEMA PROJECT OFFICER Battalion Chief Vance Cooper (757) 428-5235 Wanda Casey, 202-646-4013 1. ASSISTANCE ARRANGEMENT 12, PAYMENT METHOD 13, PAYMENT OFFICE [!] COST REIMBURSEMENT I o TREASURY CHECK Federal Emergency Management Agency o COST SHARING REIMBURSEMENT Accounting Services Division D FIXED PRICE o ADVANCE CHECK Disbursement & Receivables Branch 500 C street, S.W., Room 723 o OTHER ~ LETTER OF CREDIT Washington DC 20472 4. ASSISTANCE AMOUNT 15, ACCOUNTING & APPROPRIATION DATA PREVIOUS AMOUNT $0.00 See Continuation Page AMOUNT THIS ACTION $897,000.00 TOTAL AMOUNT $897,000.00 FEDERAL EMERGENCY MANAGEMENT AGENCY ASSIST ANCE AWARD/AMENDMENT 6, DESCRIPTION OF PROJECT This is a Cooperative Agreement for the development and maintenance of the National Urban Search and Rescue response system resources. This will prepare the Task Forces to provide qualified and competent Urban Search and Rescue personnel and equipment in support of ESF-9 activities. Please refer to the Agreement Articles for the terms and conditions of this cooperative Agreement. The Statement of Work (SOW), the attachments to the SOW, the budget and budget narrative are made a a part of this Cooperative Agreement. Catalog of Federal Domestic Assistance (CFDA) NO. 97.025 applies to this Cooperative Agreement. The Period of Performance is 03/01/05 thru.06/30/06. End of Agreement. 7. RECIPIENT REQUIREMENT . o RECIPIENT IS REQUIRED TO SIGN AND RETURN THREE (3) COPIES OF THIS DOCUMENT TO THE ISSUING/ADMIN OFFICE IN BLOCK 8. o RECIPIENT IS NOT REQUIR'ED TO SIGN THIS DOCUMENT, . 8', RECIPIENT (Type name and tille) 19, ASSISTANCE OFFICER (Type name and title) DATE MAR I . .,..., .J.,' -37- Item V-I.8a. ORDINANCES/RESOLUTIONS ITEM # 54384 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED: Ordinance to A UTHORIZE a temporary encroachment into a portion of City property by ELDON L. and GLAD YS T. GRIGGS at 908 Brasileno Court to construct and maintain a bulkhead. (DISTRICT 7 - PRINCESS ANNE) The following conditions shall be required: 1, The temporary encroachment shall be constructed and maintained in accordance with the laws of the Commonwealth of Virginia and the City of Virgin ia Beach and in accordance with the City's specifications and approval. 2. The temporary encroachment shall terminate upon notice by the City to the applicant and, within thirty (30) days after such notice is given, the temporary encroachment must be removed from the encroachment area by the applicant and the applicant will bear all costs and expenses of such removal. 3, The applicant 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. 4. 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 applicant. 5. The applicant agrees to maintain the temporary encroachment so as not to become unsightly or a hazard 6. The applicant must obtain a permit from the Office of the Planning Department prior to commencing any construction within the encroachment area. September 13, 2005 - 38- Item V-L8a. ORDINANCES/RESOLUTIONS ITEM # 54384 (Continued) 7. The applicant 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 applicant agrees to carry comprehensive general liability insurance in an amount not less than Five Hundred Thousand Dollars ($500,000), combined single limits of such insurance policy or policies. The applicant 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 applicant assumes all responsibilities and liabilities, vested or contingent, with relation to the temporary encroachment. 8, The City, upon revocation of such authority and permission so granted, may remove the temporary encroachment and charge the cost thereof to the applicant and collect the cost in any manner provided by law for the collection of local or state taxes; may require the applicant to remove such temporary encroachment; and, pending such removal, the City may charge the applicant for the use of the encroachment area, the equivalent of what would be the real property tax upon the land so occupied ifit were occupied by the applicant; and ifsuch 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 such temporary encroachment is allowed to continue thereafter; and, shall collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. Voting: 10-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, James L. Wood and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: Richard A. Maddox September 13, 2005 1 Requested by Department of Public Works 2 3 AN ORDINANCE TO AUTHORIZE A 4 TEMPORARY ENCROACHMENT INTO 5 A PORTION OF THE RIGHT-OF-WAY 6 LOCATED BEHIND 908 BRASILENO 7 COURT BY ELDON L. GRIGGS AND 8 GLADYS 1. GRIGGS, THEIR HEIRS, 9 ASSIGNS AND SUCCESSORS IN 10 TITLE 11 12 WHEREAS, Eldon L. Griggs and Gladys 1. Griggs desire to construct and 13 maintain a bulkhead within the City's right-of-way located behind 908 Brasileno Court. 14 WHEREAS, City Council is authorized pursuant to SS 15.2-2009 and 15.2-2107, 15 Code of Virginia, 1950, as amended, to authorize temporary encroachments upon the 16 City's right-of-way subject to such terms and conditions as Council may prescribe. 17 NOW, THEREFORE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 18 VIRGINIA BEACH, VIRGINIA: 19 That pursuant to the authority and to the extent thereof contained in SS 15.2- 20 2009 and 15.2-2107, Code of Virginia, 1950, as amended, Eldon L. Griggs and Gladys 21 1. Griggs, their heirs, assigns and successors in title are authorized to construct and 22 maintain a temporary encroachment for a bulkhead in the City's right-of-way as shown 23 on the map entitled: "Exhibit A, SITE PLAN SCALE: 1 "=30' PROPOSED BULKHEAD 24 IN A CANAL @ LAGOMAR MLW=O.O' PROJECT LOCATION: 908 BRASILENO 25 COURT VA BEACH, VA 23456 APPLICANT: ELDON GRIGGS 908 BRASILENO 26 COURT VA BEACH, VA 23456 DATE: 06/09/05 SHEET 1 OF 2" a copy of which is on 27 file in the Department of Public Works and to which reference is made for a more 28 particular description; and 29 BE IT FURTHER ORDAINED, that the temporary encroachment is expressly 30 subject to those terms, conditions and criteria contained in the Agreement between the 31 City of Virginia Beach and Eldon L. Griggs and Gladys T. Griggs (the "Agreement"), 32 which is attached hereto and incorporated by reference; and 33 BE IT FURTHER ORDAINED, that the City Manager or his authorized designee 34 is hereby authorized to execute the Agreement; and 35 BE IT FURTHER ORDAINED, that this Ordinance shall not be in effect until such 36 time as Eldon L. Griggs and Gladys T. Griggs and the City Manager or his authorized 37 designee execute the Agreement. 38 Adopted by the Council of the City of Virginia Beach, Virginia, on the 39 1 3thday of September ,2005. 40 41 APPROVED AS TO CONTENTS 42 C\(jllJl~S C I ~WSCV\ 43 ~ATURE 44 Pill REd ~ 45 DEPARTMENT 46 47 APPROVED AS TO LEGAL 48 SUFFIC ENCY AND FORM 49 50 CI 51 52 CA- 9675 53 PREPARED:7aaffiS 54 F;/DataIATYlordinINONOODElpw ORDINICA9675 Griggs.doc PREPARED BY VIRGINIA BEACH CITY A TIORNEY'S OFFICE EXEMPTED FROM RECORDA nON TAXES 58.1-811(c)(3) 'l'l~j 0 O~ THIS AGREEMENT, made this ~ day of' t7 U,"; , 20~ by and between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation, Grantor, "City", and ELDON L. GRIGGS AND GLADYS T. GRIGGS, THEIR HEIRS, ASSIGNS AND SUCCESSORS IN TITLE, "Grantee", even though more than one. WIT N E SSE T H: That, WHEREAS, the Grantee is the owner of that certain lot, tract, or parcel ofland designated and described as "LOT 268" as shown on that certain plat entitled "SUBDIVISION OF LAGOMAR, SECTION 6, PHASE 3, PART C, NOVEMBER 29,1993 SHEET 1 OF 5 PRINCESS ANNE BOROUGH VIRGINIA BEACH, VIRGINIA" and being further designated and described as 908 Brasileno Court, Virginia Beach, Virginia 23456; and That, WHEREAS, it is proposed by the Grantee to construct and maintain a bulkhead, "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 100' drainage easement "The Encroachment Area"; and WHEREAS, the Grantee has requested that the City permit a Temporary Encroachment within The Encroachment Area. GPIN 2414-93-5010 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: "SITE PLAN SCALE: 1 "=30' PROPOSED BULKHEAD IN A CANAL@LAGOMARMLW-O.O' PROJECT LOCATION: 908 BRASILENO COURT VA BEACH, VA 23456 APPLICANT: ELDON GRIGGS 908 BRASILENO COURT VA BEACH, VA 23456 DATE: 06/09/05 SHEET 1 OF 2," 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 terminates 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. 2 I 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 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 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 herein above 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, 3 and may collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. IN WITNESS WHEREOF, Eldon L. Griggs and Gladys T. Griggs, the said Grantee has caused this Agreement to be executed by their signature(s) and seales) 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. CITY OF VIRGINIA BEACH By City Manager/Authorized Designee of the City Manager (SEAL) ATTEST: City Clerk 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. Notary Public My Commission Expires: 4 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. Notary Public My Commission Expires: STATE OF ~~~~ fl CITY/COUNTY 0'F N~tL , to-wit: The foregoing instrument was acknowledged before me this 2-21\1\) day of ~, 20D5, by Eldon L. Griggs. \. l I<ellie H. Pope C~tQL \..~ . ~~. ~'- NOTARY PUBLIC Commonwealth of Virginia Notary Publi~ My C'Jm~h:s!on Expir~~ 9/30/08 Q 0 .rt; a, My CommIssIon ExpIres: ~'\"'-"-~)'\ 60 J ?_()C ~ STATE OF V. ',- l' ,,-,' t'-- V' ' . I) CITY/COUNTY OF, (i I"'.' --- ,!.J( ,-~ l~, to-wit: . _ The foregoing instrument was acknowledged before me this ;2 5'J-l...day of (~200':bYGladYST.Griggs. t.~ O~ (0 Public My Commission Expires: ~- - .3 ( - ~ 007 APPROVED AS TO CONTENTS APPROVED AS TO LEGAL SUFFICIENCY AND FORM ~n n[s L \ \=ir"i}J!.i.~, SIGNATURE Pw kEuLfu.trJ[ DEPARTMENT ~r 5 FENCE. TYP i100' DRAINAGE EASEMENT 7 S 86.55'17" E 61.14' -EBB--") L-FLOOD- ENCROACHMENT: PROPOSED 1 OS' BULKHEAD, 11.40' FROM PROPERlY UNE POOL VI VI o It: ~~ ~ ~O C~:~R~ ~=JJ l:Q5~ -t:. . . . :' AS., I ~ ~ ~ - VI o ~ Ig. . ..' I~ ~ ...:.. ". . '; .~ 90B BRASILENO CT . I 4'" 1. GPIN: 2414 9:3 5010 1M ~ I' .' .~~: . \.:: (.' ~~ I... NI . ..., I~ in .: .. '., . C"l 01 ~.~:' ~..., IO!. :zt :. ,. .. . .~." ,': I Vl\;: 1 . ',', \ \ 4.;..:':~~t::.:. ..' .......:...~>~.~.....~.;.:....:~':'_~ ... . '>z' ~. .' I .: '. .,/ (Jj I '.' .:.... '~." . " . '.' ."' . "'~o. ~ I ' '. .' . . ... . . . . / ~ ~9. lR-moo._r~',. ~::~f;? ~ A=30.54' T -BRASILENO COURT- '.. ..' i..:.:..... ::~: :.~/. ":' RCP FENCE. TYP -,. .: 1) LISA HENEGHAN 912 BRASILENO CT. VA BEACH, VA 23456 GPIN: 2414 92 4909 2) ROBERT MCMICHAEL 900 BRASILENO CT. VA BEACH. VA 23456 GPIN: 2414 92 6939 It: PROPERTY LINE ~ INTICATES PHOTO \.!,JfIII""" NO. & DIRECTION GRAPHIC SCALE 15' 0 15' 30' I""HHH~ I I 1" = 30' SITE PLAN SCALE: 1"=30' PROPOSED BULKHEAD IN A CANAL @ LAGOMAR PROJECT LOCATION: 908 BRASILENO COURT VA BEACH, VA 23456 APPLICANT: ELDON GRIGGS 908 BRASILENO COURT VA BEACH, VA 23456 MLW-O.O DATE: 06/09/05 SHEET 1 OF 2 ~ LOCATION MAP SHOWING ENCROACHMENT REQUESTED BY ELDON L. GRIGGS AND GLADYS T. GRIGGS FOR A BULKHEAD 908 BRASILENO COURT GPIN 2414-93-5010 SCALE: 1" = 200' 908 BRASILENO.DGN M.J.S. PREPARED BY P,.W ENG. CADD DEPT. JULY 20,2005 - 39- Item V-I.8b. ORDINANCES/RESOLUTIONS ITEM # 54385 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED: Ordinance to A UTHORIZE a temporary encroachment into a portion a portion of City property by PATRICK J. and LISA M. HENEGHAN at 912 Brasileno Court to construct and maintain a bulkhead, (DISTRICT 7 - PRINCESS ANNE) The following conditions shall be required: 1. The temporary encroachment shall 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. 2, The temporary encroachment shall terminate upon notice by the City to the applicant and, within thirty (30) days after such notice is given, the temporary encroachment must be removed from the encroachment area by the applicant and the applicant will bear all costs and expenses of such removal. 3. The applicant 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. 4, 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 applicant. 5. The applicant agrees to maintain the temporary encroachment so as not to become unsightly or a hazard 6. The applicant must obtain a permit from the Office of the Planning Department prior to commencing any construction within the encroachment area. September 13, 2005 - 40- Item V-L8b. ORDINANCES/RESOLUTIONS ITEM # 54385 (Continued) 7, The applicant 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 applicant agrees to carry comprehensive general liability insurance in an amount not less than Five Hundred Thousand Dollars ($500,000), combined single limits of such insurance policy or policies. The applicant will provide endorsements providing at least thirty (30) days' written notice to the City prior to the cancellation or termination oj, or material change to, any of the insurance policies, The applicant assumes all responsibilities and liabilities, vested or contingent, with relation to the temporary encroachment. 8, The City, upon revocation of such authority and permission so granted, may remove the temporary encroachment and charge the cost thereof to the applicant and collect the cost in any manner provided by law for the collection of local or state taxes; may require the applicant to remove such temporary encroachment; and, pending such removal, the City may charge the applicant for the use of the encroachment area, the equivalent of what would be the real property tax upon the land so occupied ifit were occupied by the applicant; 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 such temporary encroachment is allowed to continue thereafter; and, shall collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. Voting: 10-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M, Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. OberndorJ, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, James L. Wood and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: Richard A. Maddox September 13, 2005 1 Requested by Department of Public Works 2 3 AN ORDINANCE TO AUTHORIZE A 4 TEMPORARY ENCROACHMENT INTO 5 A PORTION OF THE RIGHT-OF-WAY 6 LOCATED BEHIND 912 BRASILENO 7 COURT BY PATRICK J. HENEGHAN, II 8 AND LISA M. HENEGHAN, THEIR 9 HEIRS, ASSIGNS AND SUCCESSORS 10 IN TITLE 11 12 WHEREAS, Patrick J. Heneghan, II and Lisa M. Heneghan desire to construct 13 and maintain a bulkhead within the City's right-of-way located behind 912 Brasileno 14 Court. 15 WHEREAS, City Council is authorized pursuant to 99 15.2-2009 and 15.2-2107, 16 Code of Virginia, 1950, as amended, to authorize temporary encroachments upon the 17 City's right-of-way subject to such terms and conditions as Council may prescribe. 18 NOW, THEREFORE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 19 VIRGINIA BEACH, VIRGINIA: 20 That pursuant to the authority and to the extent thereof contained in 99 15.2- 21 2009 and 15.2-2107, Code of Virginia, 1950, as amended, Patrick J. Heneghan, II and 22 Lisa M. Heneghan, their heirs, assigns and successors in title are authorized to 23 construct and maintain a temporary encroachment for a bulkhead in the City's right-of- 24 way as shown on the map entitled: "Exhibit A, SITE PLAN SCALE: 1"=30' PROPOSED 25 BULKHEAD IN A CANAL @ LAGOMAR MLW=O.O' PROJECT LOCATION: 912 26 BRASILENO COURT VA BEACH, VA 23456 APPLICANT: LISA HENEGHAN 912 27 BRASILENO COURT VA BEACH, VA 23456 DATE: 06/09/05 SHEET 1 OF 2" a copy of 28 which is on file in the Department of Public Works and to which reference is made for a 29 more particular description; and 30 BE IT FURTHER ORDAINED, that the temporary encroachment is expressly 31 subject to those terms, conditions and criteria contained in the Agreement between the 32 City of Virginia Beach and Patrick J. Heneghan, II and Lisa M. Heneghan (the 33 "Agreement"), which is attached hereto and incorporated by reference; and 34 BE IT FURTHER ORDAINED, that the City Manager or his authorized designee 35 is hereby authorized to execute the Agreement; and 36 BE IT FURTHER ORDAINED, that this Ordinance shall not be in effect until such 37 time as Patrick J. Heneghan, II and Lisa M. Heneghan and the City Manager or his 38 authorized designee execute the Agreement. 39 Adopted by the Council of the City of Virginia Beach, Virginia, on the 40 13th day of september ,2005. 41 42 ~.PPROVED AS TO CONTENTS 43 .' _rrncS: C \ ~ 44 NATURE 45 _-Pill Rff\L&tdt 46 DEPARTMENT 47 48 49 50 51 52 53 54 55 APPROVED AS TO LEGAL SUFF I NCY NO FORM CI CA- 9690 PREPARED: 8/5/05 F; I Data I A'I'Y I Ordin I NONCODEII~PW ORDIN I CA9690 Heneghan .doc PREPARED BY VIRGINIA BEACH CITY ATTORNEY'S OFFICE EXEMPTED FROM RECORDA nON TAXES 58.1-81l(c)(3) THIS AGREEMENT, made this 3V"Jdayof Ai<.gU.5t ,20 oS, by and between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation, Grantor, "City", and PATRICK J. HENEGHAN, II AND LISA M. HENEGHAN, THEIR HEIRS, ASSIGNS AND SUCCESSORS IN TITLE, "Grantee", even though more than one. WIT N E SSE T H: That, WHEREAS, the Grantee is the owner of that certain lot, tract, or parcel ofland designated and described as "LOT 269" as shown on that certain plat entitled "SUBDIVISION OF LAGOMAR, SECTION 6, PHASE 3, PART C, NOVEMBER 29,1993 SHEET 1 OF 5 PRINCESS ANNE BOROUGH VIRGINIA BEACH, VIRGINIA" and being further designated and described as 912 Brasileno Court, Virginia Beach, Virginia 23456; and That, WHEREAS, it is proposed by the Grantee to construct and maintain a bulkhead, "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 100' drainage easement "The Encroachment Area"; and WHEREAS, the Grantee has requested that the City permit a Temporary Encroachment within The Encroachment Area. GPIN 2414-92-4909 It is expressly understood and agreed that the Temporary Encroachment will be constructed and maintained in accordance with the laws ofthe 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: "SITE PLAN SCALE: 1 "=30' PROPOSED BULKHEAD IN A CANAL@LAGOMARMLW-O.O' PROJECT LOCATION: 912 BRASILENO COURT VA BEACH, VA 23456 APPLICANT: LISA HENEGHAN 912 BRASILENO COURT VA BEACH, VA 23456 DATE: 06/09/05 SHEET 1 OF 2," 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 terminates 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. 2 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 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 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 herein above 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, 3 and may collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. IN WITNESS WHEREOF, Patrick J. Heneghan, II and Lisa M. Heneghan, the said Grantee has caused this Agreement to be executed by their signature(s) and seales) 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. CITY OF VIRGINIA BEACH By City Manager/Authorized Designee of the City Manager (SEAL) ATTEST: City Clerk '1't 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. Notary Public My Commission Expires: 4 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. Notary Public My Commission Expires: STATE OF VI (Ci It;':,,- . , , CITY/COUNTY OF V ~ vq I lit () d'atl,-, to-wit: 11 ,,_. ,1' Th~e foregoing instrument was aCknOWledged..... be. for.. e me this 0Yo/ day of ~, 20().~ by Patrick J. Heneghan, II. /1_....-_... ____. . ." '.: ~~ ~il;CV a ctlenc My Commission Expires: :}:- 31 -:)..007 ,( STATE OF V"q; kIlL' CITY/COUNTY OF VI J/'9 i'/t' c!3-e. o:.4o-wit: The foregoing instrument was acknowledged before me this ~d, day of iJU/jIJ5l, 200S-by Lisa M. Heneghan. C(J~~{1. cicku"'.L otary Public My Commission Expires: S -31 -;;Ac,<-)"7 APPROVED AS TO CONTENTS APPROVED AS TO LEGAL SUFFICIENCY AND FORM r'..'..'". ""rJcumc~ C. ql-VUsr-\,,,, SIGNATURE Pm K f fJ f'/}tcif~ DEPARTMENT -~ 5 ENCROACHMENT: PROPOSED 100' BULKHEAD. 1.3.25' FROM PROPERlY UNE TOP OF BANK L 100' DRAINAGE EASEMENT 7 N 86..36'34" E 101.50' - BULKHEAD END, 1 .50' FROM PROPERlY LINE E9 ' 1 ~ ,,5' L==E.60, ~84.32'~..: -:"2.4 _ _ - - -R==700.00 -- 1) DAVID NELSON 916 BRASILENO CT. VA BEACH, VA 23456 GPIN: 2414 92 3908 GRAPHIC SCALE 15' 0 15' 30' Ii,HHH~ I I 1" = 30' PROPOSED BULKHEAD IN A CANAL @ LAGOMAR \ I IUl \ 0 IU! 1 ~. 18. 1f11 \~ I!'> co I co. I -tJ 1 I 1 L==25.87' .1 '., "'1" . .' _ _ - -t.- ~ R==375.00 l - - , 0" W 74 18' " S 84.320' ~ INTI CATES PHOTO NO. -BRASILENO COURT- ~ & DIRECTION '0 q o 10 .... ~ '0 I ~I ('.II in o zl 1 I I I ~ I I I 912 BRASILENO ~~09 GPIN: 2414 92 fjt; '" ::sf) &u Q;u 't' SITE PLAN SCALE: 1"=30' E.)('~'I:.6'I.\ A -EBB---') <-FLOOD- Ul Ul o 5~ <(....J . ~ ~o 1 ~ FENCE, lYP 2) ELTON GRIGGS 908 BRASILENO CT. VA BEACH, VA 23456 GPIN: 2414 93 5010 It: PROPERlY LINE PROJECT LOCATION: 912 BRASILENO COURT VA BEACH, VA 23456 APPLICANT: LISA HENEGHAN 912 BRASILENO COURT VA BEACH, VA 23456 MLW=O.O' DATE: 06/09/05 SHEET 1 OF 2 ~ -------/ !:/ ~~ "---~~ ~~----' ---- ---- .~~~~ J\;/~~ ~~, o p~ -~<::____ . ~<<~~ ~. LOCATION MAP SHOWING ENCROACHMENT REQUESTED BY PATRICK J. HENEGHAN, II AND LISA M. HENEGHAN FOR A BULKHEAD 912 BRASILENO COURT GPIN 2414-92-4909 SCALE: 1" = 200' 9lD! BRASILENO.DGN M.J.5. PREPARED BY P/VII ENG, CADD DEPT. JULY 20, 2005 sr y n i xi i,? r 4. Ot--.1 11 i i , , ,, .k._, ,.,': . 3 'w.. • 4 Jy •�6 �. - i. : e ., Jam_¢. .. �Y_ y I t t - • * ,.,its _ fr , ....,..„._ „. _ a„,, f t }L\ Key _{�¢5 ` h :t.. y+ •R rf v \ '!. --.-- , .:7”, . '.," . - 4.,). -*.i . '• ' '' - ' '*-'t ,4-',.." ..,:kArtrl.. ,..440t- . ,.4..t... . . I OTO 1 NOT TO SCALE APPLICANT: PROPOSED BULKHEAD IN A PROJECT LOCATION: LISA HENEGHAN CANAL © LAGOMAR 912 BRASILENO COURT 912 BRASILENO COURT VA BEACH, VA 23456 VA BEACH, VA 23456 MLW=0.0' DATE: 06/09/05 SHEET 2 OF 2 - 41 - Item V-I.9. ORDINANCES/RESOLUTIONS ITEM # 54386 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED: Resolution to AUTHORIZE the issuance and sale of $97-Million Water and Sewer System Revenue and Refunding Bonds, Series 2500, re financing the cost of improvements to the water and sanitary sewer facilities and refunding certain bonds issued under the Master Water and Sewer Bond Resolution, Voting: 10-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. OberndorJ, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, James 1. Wood and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: Richard A, Maddox September 13, 2005 CITY OF VIRGINIA BEACH, VIRGINIA EIGHTH SUPPLEMENTAL RESOLUTION SUPPLEMENTING AND AMENDING RESOLUTION ADOPTED FEBRUARY 11, 1992, ENTITLED "MASTER WATER AND SEWER REVENUE BOND RESOLUTION PROVIDING FOR THE ISSUANCE FROM TIME TO TIME OF ONE OR MORE SERIES OF WATER AND SEWER SYSTEM REVENUE BONDS OF THE CITY OF VIRGINIA BEACH, VIRGINIA" AS PREVIOUSLY SUPPLEMENTED AND AMENDED, TO PROVIDE FOR THE ISSUANCE AND SALE OF UP TO $97,000,000 OF WATER AND SEWER SYSTEM REVENUE AND REFUNDING BONDS, SERIES OF 2005, PROVIDING FOR THE FORM, DETAILS AND PAYMENT THEREOF AND THE FINANCING OF THE COST OF IMPROVEMENTS TO THE CITY'S WATER AND SANITARY SEWER FACILITIES AND THE REFUNDING OF CERTAIN BONDS ISSUED UNDER THE MASTER WATER AND SEWER BOND RESOLUTION ADOPTED ON SEPTEMBER 13, 2005 Section 8.101. Section 8.102. Section 8.103. Section 8.201. Section 8.301. Section 8.302. Section 8.303. Section 8.304. Section 8.305. Section 8.306. Section 8.307. Section 8.401. Section 8.402. Section 8.403. Section 8.404. Section 8.501. Section 8.502. Section 8.503. TABLE OF CONTENTS Pal!e ARTICLE I EIGHTH SUPPLEMENTAL RESOLUTION Eighth Supplemental Resolution..................................................................2 Meaning of Terms; Definitions....................................................................2 Reference to Articles and Sections................................... ...........................3 ARTICLE II 2005 Project Authorization of 2005 Project........................... ........... ................................3 ARTICLE III ISSUANCE AND SALE OF SERIES 2005 BONDS Issuance and Sale of Series 2005 Bonds......................................................3 Details of Series 2005 Bonds............................ ....... ...... ..............................4 Book Entry System......................................................................................5 Registrar....................................................................................................... 6 Form of Series 2005 Bonds..........................................................................6 Security for Series 2005 Bonds................... ..................... ............................6 Application of Proceeds...............................................................................6 ARTICLE IV REDEMPTION OF SERIES 2005 BONDS Optional Redemption Provisions................................................................. 7 Mandatory Redemption ............................................................................... 7 Manner of Redemption................................................................................ 7 Notice of Redemption.............................. .................................................... 7 ARTICLE V FEDERAL TAX PROVISIONS Limitation of Use of Proceeds.....................................................................8 Rebate Requirement.....................................................................................9 Calculation and Payment of Rebate Amount...............................................9 ARTICLE VI MISCELLANEOUS Section 8.601. Section 8.602. Section 8.603. Section 8.604. Limitation of Rights.. ....................,........................... ............................,....10 SNAP Investment.......................................................................................1 0 Severability................................................................................................1 0 Effective Date ............................................................................................1 0 Appendix A - Description of the 2005 Project ........................................................................... A-I Appendix B - Form of the Series 2005 Bonds...... .............. ................... .................................... ..B-1 11 EIGHTH SUPPLEMENTAL RESOLUTION SUPPLEMENTING AND AMENDING RESOLUTION ADOPTED FEBRUARY 11, 1992, ENTITLED "MASTER WATER AND SEWER REVENUE BOND RESOLUTION PROVIDING FOR THE ISSUANCE FROM TIME TO TIME OF ONE OR MORE SERIES OF WATER AND SEWER SYSTEM REVENUE BONDS OF THE CITY OF VIRGINIA BEACH," AS PREVIOUSLY SUPPLEMENTED AND AMENDED, TO PROVIDE FOR THE ISSUANCE AND SALE OF UP TO $97,000,000 OF WATER AND SEWER SYSTEM REVENUE AND REFUNDING BONDS, SERIES OF 2005, PROVIDING FOR THE FORM, DETAILS AND PAYMENT THEREOF AND THE FINANCING OF THE COST OF IMPROVEMENTS TO THE CITY'S WATER AND SANITARY SEWER FACILITIES AND THE REFUNDING OF CERTAIN BONDS ISSUED UNDER THE MASTER WATER AND SEWER BOND RESOLUTION WHEREAS, the Council (the "Council") of the City of Virginia Beach, Virginia (the "City"), adopted a resolution on February 11, 1992 (the "Master Resolution"), providing for the issuance from time to time of water and sewer revenue bonds to finance or refinance the cost of improvements and extensions to its water and sanitary sewer system; and WHEREAS, the Council desires to issue pursuant to the Master Resolution up to $3,696,002 ofthe $9,513,500 water and sewer system revenue bonds authorized by an ordinance adopted by the Council on May 11, 1999, up to $4,703,619 of the $7,890,000 water and sewer system revenue bonds authorized by an ordinance adopted by the Council on May 9,2000, up to $8,524,487 of the $11,000,000 water and sewer system revenue bonds authorized by an ordinance adopted by the Council on May 15, 2001, up to $5,208,093 of the $6,930,000 water and sewer system revenue bonds authorized by an ordinance adopted by the Council on May 14, 2002, up to $9,215,000 of the $9,215,000 water and sewer system revenue bonds authorized by an ordinance adopted by the Council on May 11, 2004, and up to $3,652,799 of the $16,997,000 water and sewer system revenue bonds authorized by an ordinance adopted by the Council on May 10, 2005, and to sell such bonds as a single issue in an aggregate principal amount equal to $35,000,000; and WHEREAS, the Council desires to refund all or a portion of the City's Water and Sewer System Revenue and Refunding Bonds, Series of 1993 (the "Series 1993 Bonds"), and the City's Water and Sewer System Revenue Bonds, Series of2000 (the "Series 2000 Bonds"); and WHEREAS, the City is not in default under the Master Resolution or in payment of the principal of or interest on the Outstanding Bonds (as defined in the Master Resolution); NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: ARTICLE I EIGHTH SUPPLEMENTAL RESOLUTION Section 8.101. Eighth Supplemental Resolution. This Eighth Supplemental Resolution is adopted pursuant to and in accordance with Section 1101(g) of the Master Resolution. All covenants, conditions and agreements of the Master Resolution shall apply with equal force and effect to the Series 2005 Bonds (as hereinafter defined) and to the holders thereof, except as otherwise provided herein. Section 8.102. Meaning of Terms; Definitions. All capitalized terms used herein, and not defined either in this Section or elsewhere in this Eighth Supplemental Resolution (including the recitals hereto), shall have the meanings ascribed to such terms in the Master Resolution. The following terms shall have the following meanings in this Eighth Supplemental Resolution. "1993 Refunded Bonds" shall mean the outstanding principal amount of the City's $46,440,000 Water and Sewer Revenue and Refunding Bonds, Series of 1993, being refunded with a portion of the proceeds of the Series 2005 Bonds. "2000 Refunded Bonds" shall mean the outstanding principal amount of the City's $28,000,000 Water and Sewer Revenue Bonds, Series of 2000, being advanced refunded with a portion ofthe proceeds of the Series 2005 Bonds. "2005 Project" shall mean the acquisitions, improvements, extensions, additions and replacements to the System as described in Article II. "DTC" shall mean The Depository Trust Company, New York, New York, a securities depository, as registered owner of the Series 2005 Bonds, or its successors or assigns in such capacity. "Escrow Agent" shall mean Wells Fargo Bank, National Association, as escrow agent for the Refunded Bonds. "Escrow Deposit Agreement" shall mean the Escrow Deposit Agreement between the City and the Escrow Agent. "Escrow Fund" shall mean the fund established by the Escrow Deposit Agreement. "Rebate Amount" shall mean the excess of (a) the future value of all nonpurpose receipts with respect to the Series 2005 Bonds over (b) the future value of all nonpurpose payments with respect to the Series 2005 Bonds, in each case calculated under Section 8.503 pursuant to the requirements of Section 148 of the Code, or such other amount of arbitrage required to be rebated to the United States of America under Section 148 of the Code. 2 "Rebate Amount Certificate" shall have the meaning set forth in Section 8.503. "Refunded Bonds" shall mean the 1993 Refunded Bonds and the 2000 Refunded Bonds. "Registrar" shall mean The Bank of New York, as paying agent and bond registrar for the Series 2005 Bonds. "Series 2005 Bonds" shall mean the Water and Sewer System Revenue and Refunding Bonds, Series of 2005, in the principal amount of up to $97,000,000 to be issued in accordance with the provisions of Article III. "Eighth Supplemental Resolution" shall mean this Eighth Supplemental Resolution which further supplements the Master Resolution. Section 8.103. Reference to Articles and Sections. Unless otherwise indicated, all references herein to particular articles or sections are references to articles or sections of this Eighth Supplemental Resolution. ARTICLE II 2005 PROJECT Section 8.201. Authorization of 2005 Project. The Council has authorized, and hereby further authorizes, the acquisitions, improvements, extensions, additions and replacements to the System described on Appendix A, which are part of the approved capital improvement program of the City. ARTICLE III ISSUANCE AND SALE OF SERIES 2005 BONDS Section 8.301. Issuance and Sale of Series 2005 Bonds. The City hereby provides for the issuance of water and sewer system revenue bonds in a principal amount up to $35,000,000, consisting of up to $3,696,002 of the $9,513,500 water and sewer system revenue bonds authorized by an ordinance adopted by the Council on May 11, 1999, up to $4,703,619 of the $7,890,000 water and sewer system revenue bonds authorized by an ordinance adopted by the Council on May 9,2000, up to $8,524,487 of the $11,000,000 water and sewer system revenue bonds authorized by an ordinance adopted by the Council on May 15, 2001, up to $5,208,093 of the $6,930,000 water and sewer system revenue bonds authorized by an ordinance adopted by the Council on May 14,2002, up to $9,215,000 of the $9,215,000 water and sewer system revenue bonds authorized by an ordinance adopted by the Council on May 11, 2004, and up to $3,652,799 of the $16,997,000 water and sewer system revenue bonds 3 authorized by an ordinance adopted by the Council on May 10, 2005, which such bonds shall be issued and sold pursuant hereto. The City also hereby provides for the issuance of water and sewer system revenue and refunding bonds in an amount not to exceed $62,000,000 to refund the Series 1993 Bonds and the Series 2000 Bonds, which such bonds shall be issued and sold pursuant hereto. All such bonds shall constitute Bonds, as defined in the Master Resolution. Section 8.302. Details of Series 2005 Bonds. (a) The Series 2005 Bonds shall be designated "Water and Sewer System Revenue and Refunding Bonds, Series of2005," shall be numbered R-1 upward, shall be dated, shall be in an aggregate principal amount not to exceed $97,000,000, shall bear interest at rates payable semiannually on such dates and shall mature in installments on such dates and in years and amounts, all as determined by the City Manager to be in the best interest of the City, provided that, no bond shall bear interest at a stated rate of interest greater than 6% per annum, no bond shall mature later than October 1, 2035, and the City shall achieve a minimum present value debt service savings of three percent (3%) as a result of refunding the Series 1993 Refunded Bonds and the Series 2000 Refunded Bonds. The City Manager is hereby authorized to designate the maturities of the Series 1993 Bonds and the Series 2000 Bonds to be refunded by the Series 2005 Bonds. The City Manager is hereby authorized to approve, execute and deliver a Bond Purchase Agreement among the City and the following underwriters (the "Underwriters"), Morgan Keegan and Company, Inc., Lehman Brothers, and A. G. Edwards & Sons, Inc., consistent with the parameters set forth herein, provided that the sale price of the Series 2005 Bonds, without taking into account any original issue discount or premium, shall not be less than 99.6% of the aggregate principal amount thereof. The distribution and use by the Underwriters of the Preliminary Official Statement based upon information provided by the City and other parties to the transaction is hereby approved and the City Manager is hereby authorized to approve the final Official Statement to be dated on or about the date of issuance of the Series 2005 Bonds, with such changes from the draft Preliminary Official Statement presented at this meeting as may be approved by the City Manager, upon the advice of Bond Counsel to the City. The draft Preliminary Official Statement presented at this meeting is hereby deemed final within the meaning of Rule 15c2-12 (the "Rule") promulgated by the Securities and Exchange Commission (the "SEC"). The City Manager is hereby authorized to execute and deliver the Escrow Deposit Agreement upon advice of the City Attorney and Bond Counsel. (b) Principal of the Series 2005 Bonds and the premium, if any, thereon shall be payable to the holders upon the surrender of such Bonds at the designated corporate trust office of the Registrar. Interest on the Series 2005 Bonds shall be payable by check or draft mailed to the holders as of the 15th day of the month prior to each interest payment date, at their addresses as they appear on the registration books kept by the Registrar. (c) Except as otherwise provided herein, the Series 2005 Bonds shall be payable, executed, authenticated, registrable, exchangeable and secured, all as set forth in the Master Resolution. 4 Section 8.303. Book Entry System. Initially, one Series of 2005 Bond certificate for each maturity will be issued to DTC, which is designated as the securities depository for the Series 2005 Bonds, or its nominee, and immobilized in its custody. Beneficial owners of the Series 2005 Bonds will not receive physical delivery of the Series 2005 Bonds. So long as DTC is acting as securities depository for the Series 2005 Bonds, a book entry system shall be employed, evidencing ownership of the Series 2005 Bonds in principal amounts of $5,000 or multiples thereof, with transfers of beneficial ownership effected on the records of DTC and its participants pursuant to rules and procedures established by DTC and its participants. Interest on the Series 2005 Bonds shall be payable in clearinghouse funds to DTC or its nominee as registered owner of the Series 2005 Bonds. Principal, premium, if any, and interest shall be payable in lawful money of the United States of America by the Registrar. Transfer of principal and interest payments to participants of DTC shall be the responsibility of DTC; transfer of principal and interest payments to beneficial owners by participants of DTC will be the responsibility of such participants and other nominees of beneficial owners. The City and the Registrar shall not be responsible or liable for maintaining, supervising or reviewing the records maintained by DTC, its participants or persons acting through such participants. In the event that (a) DTC determines not to continue to act as securities depository for the Series 2005 Bonds by giving notice to the City and the Registrar discharging its responsibilities hereunder, (b) the Registrar or the City determines that DTC is incapable of discharging its duties or that continuation with DTC as securities depository is not in the best interest of the City, or (c) the Registrar or the City determines that continuation of the book entry system of evidencing ownership and transfer of ownership of the Series 2005 Bonds is not in the best interest of the City or the beneficial owners of the Series 2005 Bonds, the Registrar and the City shall discontinue the book entry system with DTC. If the Registrar or the City fails to identify another qualified securities depository to replace DTC, the Registrar shall authenticate and deliver replacement bonds in the form of fully registered certificates to the beneficial owners or to the DTC participants on behalf of beneficial owners, substantially in the form as set forth in Appendix B with such variations, omissions or insertions as are necessary or desirable in the delivery of replacement certificates in printed form. In such case, the Series 2005 Bonds would be registrable and exchangeable as set forth in Section 204 of the Master Resolution. So long as DTC is the securities depository for the Series 2005 Bonds (a) it shall be the registered owner of the Series 2005 Bonds, (b) transfers of ownership and exchanges shall be effected on the records of DTC and its participants pursuant to rules and procedures established by DTC and its participants, and (c) references in this Eighth Supplemental Resolution to holders of the Series 2005 Bonds shall mean DTC or its nominee and shall not mean the beneficial owners of the Series 2005 Bonds. 5 Section 8.304. Registrar. The selection of The Bank of New York as paying agent and bond registrar for the Series 2005 Bonds is approved. Section 8.305. Form of Series 2005 Bonds. The Series 2005 Bonds shall be in substantially the form set forth in Appendix B with such variations, omissions and insertions as may be necessary to set forth the details thereof pursuant to Article II of the Master Resolution and Article III hereof. Section 8.306. Security for Series 2005 Bonds. The Series 2005 Bonds shall be issued pursuant to the Master Resolution and this Eighth Supplemental Resolution and shall be equally and ratably secured under and to the extent provided in the Master Resolution with the Prior Parity Bonds, any Bonds that may be issued under the Master Resolution, any Parity Double Barrel Bonds that may be issued and any Parity Debt Service Components that may be incurred, without preference, priority or distinction of any obligations over any other obligations; provided, however, the Debt Service Reserve Fund will secure only the Bonds. Section 8.307. Application of Proceeds. The proceeds of the Series 2005 Bonds shall be applied as follows: (a) The amount of Series of 2005 Bond proceeds set forth in the Escrow Deposit Agreement shall be paid to the Escrow Agent and deposited in the Escrow Fund to be invested, together with available amounts transferred to the Escrow Fund from (i) the Interest Account and Principal Account in the Revenue Bond Fund with respect to the Refunded Bonds and (ii) available moneys from the debt service accounts established for the Refunded Bonds. Such amounts shall be used, together with interest earnings thereon, by the Escrow Agent for the sole purpose of paying principal, premium and interest on the Refunded Bonds and the Related Fees. (b) The amount of Series of 2005 Bond proceeds necessary, together with amounts on deposit in the Debt Service Reserve Fund and, if necessary, funds provided by the City, to equal the Debt Service Reserve Requirement after the issuance of the Series 2005 Bonds shall be paid to the Fiscal Agent and deposited into the Debt Service Reserve Fund. (c) The balance of the proceeds shall be retained by the City and deposited in a General Account in the Construction Fund to be used to pay the Cost of the 2005 Project and to pay expenses incident to issuing the Series 2005 Bonds. 6 ARTICLE IV REDEMPTION OF SERIES 2005 BONDS Section 8.401. Optional Redemption Provisions. (a) The Series 2005 Bonds may be subject to redemption prior to maturity at the option of the City on or after dates, if any, determined by the City Manager, in whole or in part at any time at redemption prices equal to the principal amount of the Series 2005 Bonds, together with any accrued interest to the redemption date, plus redemption premiums not to exceed 2% of the principal amount of the Series 2005 Bonds to be redeemed, as such redemption premiums may be determined by the City Manager. Section 8.402. Mandatory Redemption. The Series 2005 Bonds may be subject to mandatory sinking fund redemption prior to maturity in years and amounts, upon payment of 100% of the principal amount thereof to be redeemed plus interest accrued to the redemption date, as may be determined by the City Manager. Section 8.403. Manner of Redemption. If less than all the Series 2005 Bonds are called for redemption, the maturities of the Series 2005 Bonds to be redeemed shall be selected in such manner as the City Manager or the chief financial officer of the City may determine to be in the best interest of the City. If less than all of the Series 2005 Bonds of any maturity are called for redemption, the Series 2005 Bonds to be redeemed shall be selected by DTC or any successor securities depository pursuant to its rules and procedures or, if the book entry system is discontinued, shall be selected by the Registrar by lot in such manner as the Registrar at its discretion may determine. In either case, (a) the portion of any Series 2005 Bonds to be redeemed shall be in the principal amount of $5,000 or some integral multiple thereof and (b) in selecting Series 2005 Bonds for redemption, each portion of $5,000 principal amount shall be counted as one bond for this purpose. Section 8.404. Notice of Redemption. (a) Notice of redemption of the Series 2005 Bonds shall be given in the manner set forth in Section 402 of the Master Resolution. (b) In the case of an optional redemption, the notice may state that (1) it is conditioned upon the deposit of moneys, in an amount equal to the amount necessary to effect the redemption, with an escrow agent no later than the redemption date or (2) the City retains the right to rescind such notice on or prior to the scheduled redemption date (in either case, a "Conditional Redemption"), and such notice and optional redemption shall be of no effect if such moneys are not so deposited or if the notice is rescinded as described herein. Any Conditional Redemption may be rescinded at any time prior to the redemption date, and the Registrar shall give prompt notice of such rescission to the affected registered owners of the Series 2005 Bonds. 7 Any Series 2005 Bonds subject to Conditional Redemption where redemption has been rescinded shall remain Outstanding, and the rescission shall not constitute an Event of Default. Further, in the case of a Conditional Redemption, the failure of the City to make funds available on or before the redemption date shall not constitute an Event of Default, and the Registrar shall give immediate notice to all organizations registered with the Securities and Exchange Commission as securities depositories or the affected registered owners of the Series 2005 Bonds that the redemption did not occur and that the Series 2005 Bonds called for redemption and not so paid remain outstanding. ARTICLE V FEDERAL TAX PROVISIONS Section 8.501. Limitation of Use of Proceeds. The City covenants with the holders of the Series 2005 Bonds as follows: (a) The City shall not take or omit to take any action or make any investment or use of the proceeds of any Series 2005 Bonds (including failure to spend the same with due diligence) the taking or omission of which would cause the Series 2005 Bonds to be "arbitrage bonds" within the meaning of Section 148 of the Code, including without limitation participating in any issue of obligations that would cause the Series 2005 Bonds to be part of an "issue" of obligations that are arbitrage bonds, within the meaning of Treasury Regulations Section 1.148-10 or successor regulation, or otherwise cause interest on the Series 2005 Bonds to be includable in the gross income of the registered owners under existing law. Without limiting the generality of the foregoing, the City shall comply with any provision of law that may require the City at any time to rebate to the United States of America any part of the earnings derived from the investment of gross proceeds ofthe Series 2005 Bonds. (b) The City shall not permit the proceeds of the Series 2005 Bonds or the facilities to be financed with such proceeds to be used in any manner that would result in either (1) 5% or more of such proceeds or the facilities being financed with such proceeds being considered as having been used in any trade or business carried on by any person other than a governmental unit as provided in Section 141(b) of the Code, (2) 5% or more of such proceeds or the facilities being financed with such proceeds being used with respect to any "output facility" (other than a facility for the furnishing of water) within the meaning of Section 141(b)(4) of the Code, or (3) 5% or more of such proceeds being considered as having been used directly or indirectly to make or finance loans to any person other than a governmental unit, as provided in Section 141 (c) of the Code; provided, however, that if the City receives an opinion of Bond Counsel that compliance with any such covenant is not required to prevent the interest on the Series 2005 Bonds from being includable in the gross income of the registered owners thereof under existing law, the City need not comply with such restriction. (c) The City shall not take any other action that would adversely affect, and shall take all action within its power necessary to maintain, the exclusion of interest on all Series 2005 Bonds from gross income for federal income taxation purposes. 8 Section 8.502. Rebate Requirement. The City shall determine and pay, from any legally available source, the Rebate Amount, if any, to the United States of America, as and when due, in accordance with the "rebate requirement" described in Section 148(f) of the Code and retain records of all such determinations until six years after payment of the Series 2005 Bonds. Section 8.503. Calculation and Payment of Rebate Amount. (a) The City selects October 1 as the end of the bond year with respect to the Series 2005 Bonds pursuant to Treasury Regulation Section 1.148-1. (b) Within 30 days after the initial installment computation date, the last day of the fifth bond year October 1,2010, unless such date is changed by the City prior to the date that any amount with respect to the Series 2005 Bonds is paid or required to be paid to the United States of America as required by Section 148 of the Code, and at least once every five years thereafter, the City shall cause the Rebate Amount to be computed. Prior to any payment of the Rebate Amount to the United States of America as required by Section 148 of the Code, such computation (the "Rebate Amount Certificate") setting forth such Rebate Amount shall be prepared or approved by (1) a person with experience in matters of governmental accounting for Federal income tax purposes or (2) a bona fide arbitrage rebate calculation reporting service. (c) Not later than 60 days after the initial installment computation date, the City shall pay to the United States of America at least 90% of the Rebate Amount as set forth in the Rebate Amount Certificate prepared with respect to such installment computation date. At least once on or before 60 days after the installment computation date that is the fifth anniversary of the initial installment computation date and on or before 60 days every fifth anniversary date thereafter until final payment of the Series 2005 Bonds, the City shall pay to the United States of America not less than the amount, if any, by which 90% of the Rebate Amount set forth in the most recent Rebate Amount Certificate exceeds the aggregate of all such payments theretofore made to the United States of America pursuant to this Section. On or before 60 days after final payment of the Series 2005 Bonds, the City shall pay to the United States of America the amount, if any, by which 100% of the Rebate Amount set forth in the Rebate Amount Certificate with respect to the date of final payment of the Series 2005 Bonds exceeds the aggregate of all payments theretofore made pursuant to this Section. All such payments shall be made by the City from any legally available source. (d) Notwithstanding any provision of this Article to the contrary, no such calculation or payment shall be made if the City receives an opinion of Bond Counsel to the effect that (1) such payment is not required under the Code in order to prevent the Series 2005 Bonds from becoming "arbitrage bonds" within the meaning of Section 148 of the Code or (2) such payment should be calculated and paid on some alternative basis under the Code, and the City complies with such alternative basis. 9 ARTICLE VI MISCELLANEOUS Section 8.601. Limitation of Rights. With the exception of the rights herein expressly conferred, nothing expressed or mentioned in or to be implied from this Eighth Supplemental Resolution is intended or shall be construed to give any person other than the parties hereto and the holders of the Series 2005 Bonds any legal or equitable right, remedy or claim under or in respect to this Eighth Supplemental Resolution or any covenant, condition or agreement herein contained, this Eighth Supplemental Resolution and all of the covenants, conditions and agreements hereof being intended to be and being for the sole and exclusive benefit of the holders of the Series 2005 Bonds as herein provided. Section 8.602. SNAP Investment. The Council has received and reviewed the Information Statement (the "Information Statement") describing the State Non-Arbitrage Program of the Commonwealth of Virginia ("SNAP") and the Contract Creating the State Non-Arbitrage Program Pool I (the "Contract"). The Council acknowledges the Treasury Board of the Commonwealth of Virginia is not, and shall not be, in any way liable to the City in connection with SNAP, except as otherwise provided in the Contract. Section 8.603. Severability. If any provision of this Eighth Supplemental Resolution shall be held invalid by any court of competent jurisdiction, such holding shall not invalidate any other provision hereof. Section 8.604. Effective Date. This Eighth Supplemental Resolution shall take effect immediately. Adopted by the Council of the City of Virginia Beach, Virginia, on this 13th day of September, 2005. Approved as to Content: QakU()~ Finance Department fY Approved as to Legal Sufficiency: J~~t~ City Attorney's om CA9749 H:\PA\GG\OrdRes\Water Sewer Bond Resolution RES R-2 September 2, 2005 10 APPENDIX A Description of the 200S Project City of Virginia Beach, Virginia Water and Sewer System Revenue and Refunding Bonds Series of 200S The 2005 Project consists of extensions, improvements, enlargements, additions and replacements to the plants, systems, facilities, equipment or property owned, in whole or in part, acquired, operated or maintained by or on behalf of the City of Virginia Beach, Virginia, in connection with the collection, treatment or disposal of sanitary sewer and the supply, treatment, storage or distribution of water. The water system improvements include but are not limited to replacement of existing water mains, construction of new water mains, modification of existing pump stations and small line improvements. The sanitary sewer system improvements include but are not limited to construction of new gravity sanitary sewers, construction of new force mains, modification of existing pumping stations and construction of new pumping stations. A-I APPENDIX B FORM OF SERIES 2005 BONDS Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the issuer or its agent for registration of transfer, exchange, or payment, and any certificate is registered in the name of Cede & Co., or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein. REGISTERED R- REGISTERED $ UNITED STATES OF AMERICA COMMONWEAL TH OF VIRGINIA CITY OF VIRGINIA BEACH Water and Sewer System Revenue and Refunding Bond, Series of 2005 INTEREST RATE _0/0 MATURITY DATE October 1, _ DATED DATE CUSIP PRINCIPAL AMOUNT: * The City of Virginia Beach, Virginia (the "City"), for value received, hereby promises to pay upon surrender hereof at the designated corporate trust office of The Bank of New York, New York, New York (the "Registrar"), solely from the source and as hereinafter provided, to the registered owner hereof, or registered assigns or legal representative, the principal sum stated above on the maturity date stated above, subject to prior redemption as hereinafter provided, and to pay, solely from such source, interest hereon semiannually on each April 1 and October 1, beginning the dated date stated above at the annual rate stated above, calculated on the basis of a 360-day year of twelve 3 a-day months. Interest is payable (a) from the dated date stated above if this Bond is authenticated prior to April 1, 2006, or (b) otherwise from the April 1 or October 1 that is, or immediately precedes, the date on which this Bond is authenticated (unless payment of interest hereon is in default, in which case this Bond shall bear interest from the date to which interest has been paid). Interest is payable by check or draft mailed to the registered owner hereof at his address as it appears on the 15th day of the month preceding each interest payment date on registration books kept by the Registrar, Principal, premium, if any, and interest are payable in lawful money ofthe United States of America. B-1 Notwithstanding any other provision hereof, this Bond is subject to a book entry system maintained by The Depository Trust Company ("DTC") and the payment of principal and interest, the providing of notices and other matters will be made as described in the City's Blanket Letter of Representations to DTC. This Bond is one of an issue of $97,000,000 Water and Sewer System Revenue and Refunding Bonds, Series of 2005 (the "Bonds"), of like date and tenor, except as to number, denomination, rate of interest, privilege of redemption and maturity, authorized and issued pursuant to ordinances and resolutions adopted by the City Council, including a resolution adopted on February 11, 1992, as previously supplemented and as supplemented and amended by a resolution adopted on September 13, 2005 (collectively, the "Resolution"), and the Constitution and statutes of the Commonwealth of Virginia, including the City Charter and the Public Finance Act of 1991, to provide funds, together with other available funds, to pay the cost of the acquisition and construction of improvements and extensions to the City's water and sanitary sewer system (the "System") and to refund certain Bonds issued under the Resolution, as more fully described in the Resolution. The Bonds and the premium, if any, and the interest thereon are limited obligations of the City and are payable solely from the revenues to be derived from the ownership or operation of the System, as the same may from time to time exist, except to the extent payable from the proceeds of the Bonds, the income, if any, derived from the investment thereof, certain reserves, income from investments pursuant to the Resolution or proceeds of insurance, which revenues and other moneys have been pledged as described in the Resolution to secure payment thereof. The Bonds, the premium, if any, and the interest thereon are payable solely from the revenues pledged thereto in the Resolution, and nothing herein or in the Resolution shall be deemed to create or constitute an indebtedness of or a pledge of the faith and credit of the Commonwealth of Virginia or of any county, city, town or other political subdivision of the Commonwealth, including the City. The Bonds are issued under and are equally and ratably secured on a parity with the unpaid balance of the City's Drought Relief Revenue Bond, 1978, Water and Sewer Revenue Notes, 1982 (County Utilities), Water and Sewer Revenue Notes, 1982 (Kempsville Utilities), Water and Sewer System Revenue and Refunding Bonds, Series of 1993, Taxable Water and Sewer System Revenue Bond, Series of 1994, Taxable Water and Sewer System Revenue Bond, Series of 1997, Taxable Water and Sewer System Revenue Bond, Series of 1998, Water and Sewer System Revenue Bonds, Series of 2000, and Water and Sewer System Revenue Bonds, Series of 2002 (collectively, the "Parity Bonds"), to the extent set forth in the Resolution. Reference is hereby made to the Resolution and all amendments and supplements thereto for a description of the provisions, among others, with respect to the nature and extent of the security, the rights, duties and obligations of the City, the rights of the holders of the Bonds and the terms upon which the Bonds are issued and secured. Additional bonds ranking equally with the Bonds and the Parity Bonds may be issued on the terms provided in the Resolution. The Bonds are subject to redemption beginning October 1, _, in whole or in part at any time, at the option of the City, at a redemption price equal to 100% of the principal amount of Bonds to be redeemed plus interest accrued and unpaid to the redemption date. B-2 Bonds maturing on October 1, _, are required to be redeemed prior to maturity, in part, in accordance with the sinking fund requirements of Section 8.402 of the resolution adopted on September 13, 2005, on October 1 in years and amounts upon payment of 100% of the principal amount thereof plus interest accrued to the redemption date, as follows: Year Amount Year Amount The amount of the Bonds required to be redeemed pursuant to the preceding paragraph may be reduced in accordance with provisions of the Resolution. If less than all the Bonds are called for redemption, the maturities of the Bonds to be redeemed shall be selected in such manner as the City Manager or the chief financial officer of the City may determine to be in the best interest of the City. If less than all of the Bonds of any maturity are called for redemption, the Bonds to be redeemed shall be selected by DTC or any successor securities depository pursuant to its rules and procedures or, if the book entry system is discontinued, shall be selected by the Registrar by lot in such manner as the Registrar in its discretion may determine. In either case, (a) the portion of any Bond to be redeemed shall be in the principal amount of $5,000 or some integral multiple thereof and (b) in selecting Bonds for redemption, each portion of $5,000 principal amount shall be counted as one bond for this purpose. If a portion of a Bond is called for redemption, a new Bond in principal amount equal to the unredeemed portion thereof will be issued to the registered owner upon the surrender hereof. The Registrar will cause notice of the call for redemption identifying the Bonds or portions thereof to be redeemed to be sent by registered or certified mail, not less than 30 nor more than 60 days prior to the redemption date, to DTC or its nominee as the registered owner thereof. The City will not be responsible for mailing notice of redemption to anyone other than DTC or another qualified securities depository or its nominee unless no qualified securities depository is the registered owner of the Bonds. If no qualified securities depository is the registered owner of the Bonds, notice of redemption will be mailed to the registered owners of the Bonds. Provided funds for their redemption are on deposit at the place of payment on the redemption date, all Bonds or portions thereof so called for redemption shall cease to bear interest on such date, shall no longer be secured as set forth in the Resolution and shall not be deemed to be outstanding under the provisions of the Resolution. The registered owner of this Bond shall have no right to enforce the provisions of the Resolution or to institute action to enforce the covenants therein or to take any action with respect to any Event of Default under the Resolution or to institute, appear in or defend any suit or other proceedings with respect thereto, except as provided in the Resolution. Modifications or alterations of the Resolution, or of any supplement thereto, may be made only to the extent and in the circumstances permitted by the Resolution. B-3 The Registrar shall treat the registered owner as the person exclusively entitled to payment of principal, premium, if any, and interest and the exercise of all other rights and powers of the owner, except that interest payments shall be made to the person shown as owner on the 15th day of the month preceding each interest payment date. All acts, conditions and things required to happen, exist or be performed precedent to and in the issuance of this Bond have happened, exist and have been performed. This Bond shall not be valid or be entitled to any security or benefit under the Resolution until the Registrar shall have executed the Certificate of Authentication appearing hereon and inserted the date of authentication hereon. IN WITNESS WHEREOF, the City of Virginia Beach, Virginia, has caused this Bond to be signed by the manual signature of its Mayor, to be countersigned by the manual signature of its Clerk, its seal to be impressed hereon, and this Bond to be dated the dated date stated above. COUNTERSIGNED: (SEAL) Clerk, City of Virginia Beach, Virginia Mayor, City of Virginia Beach, Virginia Date Authenticated: CERTIFICATE OF AUTHENTICATION This Bond is one of the Bonds described in the within-mentioned Resolution. THE BANK OF NEW YORK, Registrar By: Authorized Signature B-4 ASSIGNMENT FOR VALUE RECEIVED the undersigned hereby sel1(s), assign(s) and transfer(s) unto (please print or typewrite name and address including zip code of Transferee) PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF TRANSFEREE the within-mentioned Bond and all rights thereunder, hereby irrevocably constituting and appointing Attorney, to transfer said Bond on the books kept for the registration thereof, with full power of substitution in the premises. Dated: Signature Guaranteed NOTICE: Signature(s) must be guaranteed by an Eligible Guarantor Institution such as a Commercial Bank, Trust Company, Securities Broker/Dealer, Credit Union or Savings Association who is a member of a medallion program approved by The Securities Transfer Association, Inc. (Signature of Registered Owner) NOTICE: The signature above must correspond with the name of the registered owner as it appears on the front of this bond in every particular, without alteration or enlargement or any change whatsoever. : :ODMA \PCDOCS\DOCSNFK\989948\6 B-5 " CERTIFICATE OF RESOLUTION The undersigned City Clerk of the City of Virginia Beach, Virginia (the "City"), certifies that: 1. A regular meeting of the Council of the City (the "Council") was held on September 13, 2005, at which the following members were present and absent: PRESENT: Harry E. Diezel Robert Dyer Louis R. Jones Richard Maddox Reba S. McClanan Meyera E. Obemdorf J. R. Reeve Peter W. Schmidt Ron A. Villanueva Rosemary Wilson James L. Wood ABSENT: None Richard Maddox 2. A resolution entitled "Eighth Supplemental Resolution Supplementing and Amending Resolution Adopted February 11, 1992, Entitled "Master Water and Sewer Revenue Bond Resolution Providing for the Issuance From Time to Time of One or More Series of Water and Sewer System Revenue Bonds of the City of Virginia Beach, Virginia," as Previously Supplemented and Amended, to Provide for the Issuance and Sale of up to $97,000,000 Water and Sewer System Revenue and Refunding Bonds, Series of 2005, and Providing For the Form, Details and Payment Thereof, the Financing of the Cost of Improvements to the City's Water and Sanitary Sewer Facilities and the Refunding of Certain Bonds Issued under the Master Water and Sewer Bond Resolution," was adopted by an affirmative roll call vote of a majority of all members of the Council, the ayes and nays being recorded in the minutes of the meeting as shown below: MEMBER VOTE Harry E. Diezel Robert Dyer Louis R. Jones Richard Maddox Reba S. McClanan Meyera E. Oberndorf J. R. Reeve Peter W. Schmidt Ron A. Villanueva Rosemary Wilson James L. Wood Aye Aye Aye Absent Aye Aye Aye Aye Aye Aye Aye 3. Attached hereto is a true and correct copy of such resolution as recorded in the minutes of such meeting of the Council held on September 13, 2005. 4. This resolution has not been repealed, revoked, rescinded or amended and is in full force and effect on the date hereof. WITNESS my signature and the seal of the City of Virginia Beach, Virginia, this _ day of October, 2005. City Clerk, City of Virginia Beach, Virginia (SEAL) - 42- Item V-J. PLANNING ITEM # 54387 1. WALTONG. and JANE M. BRUMLEY VARIANCE 2. TY BROWN NONCONFORMING USE 3. TIDEWATER IMPORTS, INC. lIa HALL NISSAN VIRGINIA BEACH CONDITIONAL USE PERMIT 4. JAMES A. CASPER CONDITIONAL USE PERMIT 5. NEW LIGHT BAPTIST CHURCH CONDITIONAL USE PERMIT 6. MUNDEN LAND, LLC CONDITIONAL CHANGE OF ZONING 7. CITY ZONING ORDINANCE AMEND 9 904 of the CZO re maximum height restrictions for uses and structures in the B-3A September 13, 2005 - 43- Item V-J. PLANNING ITEM # 54388 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council APPROVED IN ONE MOTION Items 1, 2, 3, 4, 5 and 7 of the PLANNING BY CONSENT AGENDA, Voting: 10-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R, Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A, Villanueva, James 1. Wood and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: Richard A. Maddox Mayor Oberndorfvoted a VERBAL NAY on Item J.1 (BRUMLEY) and J.2. (BROWN) Council Lady McClanan voted a VERBAL NAY on Items Item J.3 (HALL NISSAN), J.4 (CASPER) and J. 7 (CZO - Height Restrictions) September 13, 2005 - 44- Item V-J.1. PLANNING ITEM # 54389 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council APPROVED the application of WALTON G. and JANE M. BRUMLEY for a Variance to S4.4(b) of the Subdivision Ordinance that requires all newly created lots meet the requirements of the City Zoning Ordinance (CZO): Appeal to Decisions of Administrative Officers in regard to certain elements of the Subdivision Ordinance, Subdivision for Walton G. Brumley & Jane M. Brumley. Property is located at 6472 Knotts Island Road (GPIN 23378194490000). DISTRICT 7 - PRINCESS ANNE The following conditions shall be required: 1. The property shall be subdivided substantially as shown on the plat entitled; "Subdivision of Property Parcel Designated G, W Brumley Knotts Island, " dated October 25, 2004, by Bonifant Land Surveys. Voting: 9-1 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, James L. Wood and Rosemary Wilson Council Members Voting Nay: Mayor Meyera E. Oberndorf Council Members Absent: Richard A. Maddox September 13, 2005 - 45 - Item V-J.2. PLANNING ITEM # 54390 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED the application of TY BROWN for the exvansion of a Nonconforming Use at 412 26th Street to replace an existing nonconforming cottage Resolution upon application of Ty Brown for a Change to a Nonconforming Use on property located at 412 2&h Street (GPIN 241189091510000). DISTRICT 6 - BEACH The following conditions shall be required: 1. The site shall be developed substantially in accordance with the submitted site plan, Said plan has been exhibited to the Virginia Beach City Council and is onfile in the Virginia Beach Planning Department, 2, The proposed structure shall be constructed substantially in accordance with the submitted elevations titled "Front Elevation, Left Side Elevation, and Right Side Elevation". Said elevations have been exhibited to the Virginia Beach City Council and are on file in the Virginia Beach Planning Department. 3. The applicant shall employ the use of sound attenuation building materials for structures located within a 65-70dB Ldn AICUZ noise zone as required by the Virginia Uniform Statewide Building Code (USBC). 4. Building colors are limited to earth tone color palettes. All windows shall be vinyl, all deck and porch railings shall be vinyl wrapped and deck and porch floors shall be concrete, brick, stone or composite deck material, 5. The proposedfront porch on the primary residential unitfranting 2&h Street shall not be enclosed, Voting: 9-1 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M, Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, James L. Wood and Rosemary Wilson Council Members Voting Nay: Mayor Meyera E. Oberndorf Council Members Absent: Richard A, Maddox September 13, 2005 1 2 3 4 5 A RESOLUTION AUTHORIZING CHANGES TO A NONCONFORMING USE ON PROPERTY LOCATED AT 412 26TH STREETI IN THE BEACH DISTRICT WHEREAS I Ty Brown (hereinafter the "Applicantll) I has made 6 application to the City Council for authorization to demolish 7 and replace a nonconforming single-family dwelling situated on a 8 certain lot or parcel of land having the address of 412 26th 9 Streetl in the A-12 Apartment Districti and 10 WHEREAS I the said single-family dwelling is nonconforming 11 in that there are two single-family dwellings on the same 12 parcell which is not allowed in the A-12 Apartment Zoning 13 District. The parcel was developed prior to the adoption of the 14 Zoning Ordinance. The nonconforming single-family dwelling also 15 encroaches onto the City-owned alley and adj acent properties i 16 and 17 WHEREAS I pursuant to Section 105 of the City Zoning 18 Ordinancel changes to a nonconforming use are unlawful in the 19 absence of a resolution of the City Council authorizing such 20 action upon a finding that the proposed usel as changedl will be 21 equally appropriate or more appropriate to the zoning district 22 than is the existing usei 23 NOW I THEREFORE I BE IT RESOLVED BY THE COUNCIL OF THE CITY 24 OF VIRGINIA BEACH I VIRGINIA: 25 That the City Council hereby finds that the proposed uset 26 as changedt will be equally appropriate to the district as is 27 the existing use. 28 BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF 29 VIRGINIA BEACHt VIRGINIA: 30 31 That the proposed demolition and replacement of the Applicant's nonconforming single-family dwelling is hereby 32 authorizedt upon the following conditions: 33 34 1. The site shall be developed substantially in conformance with the submitted site plan. Said plan has been 35 exhibited to the City of Virginia Beach City Council and is on 36 file in the City of Virginia Beach Planning Department. 37 2. The proposed structure shall be constructed 38 substantially in accordance with the submitted elevations titled 39 Front Elevationt Left Side Elevationt and Right Side Elevation. 40 Said elevations have been exhibited to the City of Virginia 41 Beach City Council and are on file in the City of Virginia Beach 42 Planning Department. 43 3 . The applicant shall employ the use of sound 44 attenuation building materials for structures located within a 45 65-70 dB Ldn AICUZ noise zone as required by the Virginia 46 Uniform Statewide Building Code (USBC) 2 47 4. Building colors are limited to earth tone color 48 palettes. All windows shall be vinyl, all deck and porch 49 railings shall be vinyl wrapped, and deck and porch floors shall 50 be concrete, brick, stone or composite deck material. The 51 applicant shall submit detailed architectural elevation plans, 52 materials list and color palette to the Current Planning 53 Division of the Planning Department during detailed site plan 54 review. 55 5 . The proposed front porch on the primary residential 56 unit fronting 26th Street shall not be enclosed. 57 58 Adopted by the Council of the City of Virginia Beach on the 59 13thday of September, 2005. CA-9744 OID\Ordres\nonconforming-brown.doc R-1 August 25, 2005 APPROVED AS TO CONTENT: .I c/ /'/ J' ; 3 - 46- Item V-J.3. PLANNING ITEM # 54391 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED an Ordinance upon application of TIDEWATER IMPORTS, INC. tla HALL NISSAN VIRGINIA BEACH for a Conditional Use Permit re a communications tower: ORDINANCE UPON APPLICATION OF TIDEWATER IMPORTS, INC. TIA HALL NISSAN VIRGINIA BEACH FORA CONDITIONAL USE PERMIT FOR A COMMUNICATIONS TOWER R0905341264 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Application of Tidewater Imports, Inc. tla Hall Nissan Virginia Beach for a Conditional Use Permit for a communications tower on property located on the north side of 1-264, extending from the east side of Pine Street to the west side of Poplar Street (GPIN 14875316860000). DISTRICT 3 - ROSE HALL The following conditions shall be required: 1, The existing one hundred eighty-foot (I80 ') tall communication tower located on the east side of Butternut Lane (108 Butternut Lane) shall be removed within thirty (30) days of the new tower installation. 2. The applicant must submit to Planning current written confirmation that all existing users on the existing communications tower are aware and acknowledge the relocation and have been given the option to relocate on the new tower with no adverse impacts to their business prior to site plan approval for the new tower, 3. The tower shall be limited in height to one hundred eighty (I 80) feet. 4. The tower shall be constructed substantially in adherence to the site plan entitled "Cell Tower, Hall Property Virginia 10341E" dated 05102105 and prepared by MSA, P. C. This site plan has been exhibited to City Council and is on file with the Department of Planning. 5, The tower shall be constructed to accommodate equipment for at least three (3) additional wireless providers. A structural report to confirm this shall be provided at detailed site plan review. 6. Unless a waiver is obtained from the Virginia Beach Department of Communications and Information Technology (COMIT), a Radio Frequency Emissions Study (RF Study), conducted by a qualified engineer licensed to practice in the Commonwealth of Virginia, showing that the intended user(s) will not interfere with any Virginia Beach emergency communications facilities, shall be provided prior to site plan approval for the tower and all subsequent users. September 13, 2005 - 47 - Item V-J.3. PLANNING ITEM # 54391 (Continued) 7. In the event interference with any City emergency communications facilities arises from the users of this tower, the user(s) shall take all measures reasonably necessary to correct and eliminate the interference. If the interference cannot be eliminated within a reasonable time, the user shall immediately cease operation to the extent necessary to stop the interference. 8. Should the antennae cease to be used for a period of more than one (I) year, the applicant shall remove the antennae and their supporting tower and related equipment, This Ordinance shall be effective in accordance with Section 107 (f) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Thirteenth of September, Two Thousand Five Voting: 9-1 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M, Dyer, Vice Mayor Louis R. Jones, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, James 1. Wood and Rosemary Wilson Council Members Voting Nay: Reba S. McClanan Council Members Absent: Richard A. Maddox September 13, 2005 - 48- Item V-J. 4. PLANNING ITEM # 54392 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED an Ordinance upon application of JAMES A. CASPERfor a Conditional Use Permit: ORDINANCE UPON APPLICATION OF JAMES A. CASPER FOR A CONDITIONAL USE PERMIT FOR A CONTRACTOR'S STORAGE YARD R0905341265 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Application of James A. Casper for a Conditional Use Permit for a contractor's storage yard on property located at 1297 Baker Road (GPIN 14599195790000). DISTRICT 4 -BAYSIDE The following conditions shall be required: 1. The site shall be developed substantially in accordance with the submitted site plan entitled "Baker Road, Virginia Beach, VirginiaJor Conditional Use Permit Only", prepared by KCI Technologies dated May 24, 2005. Said plan has been exhibited to the Virginia Beach City Council and is on file City of Virginia Beach Planning Department. 2, The bulk storage area shall only be used for the storage of building materials and equipment accessory to the applicant's business. There shall be no storage of inoperable contractor equipment or vehicles on the site. There shall be no storage of motor vehicles, There shall be no sale of or the processing of scrap, salvage or secondhand materials on the site. 3. Building materials and equipment shall not be stacked higher than six (6) feet and shall maintain a minimum five (5)-foot setbackfrom the required fencing. 4, A Lighting Plan and/or Photometric Diagram Plan shall be submitted during detailed site plan review. Said plan shall include the location of all pole mounted and building mounted lighting fixtures, and the listing of lamp type, wattage, and type of fixture. Lighting shall overlap and be uniform throughout the parking area. All lighting on the site shall be consistent with those standards recommended by the Illumination Engineering Society of North America. The plan shall include provisions for implementing low-level security lightingfor non- business hours. 5, The bulk storage yard may be gravel provided a waiver of on-site improvements is requested to and approved by the Planning Director. September 13, 2005 - 49- Item V-J.4. PLANNING ITEM # 54392 (Continued) This Ordinance shall be effective in accordance with Section 107 (f) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Thirteenth of September, Two Thousand Five Voting: 9-1 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M, Dyer, Vice Mayor Louis R, Jones, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, James L. Wood and Rosemary Wilson Council Members Voting Nay: Reba S. McClanan Council Members Absent: Richard A. Maddox September 13, 2005 - 50- Item V-J.5. PLANNING ITEM # 54393 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED an Ordinance upon application n of NEW LIGHT BAPTIST CHURCH for a Conditional Use Permit: ORDINANCE UPON APPLICATION OF NEW LIGHT BAPTIST CHURCH FORA CONDITIONAL USE PERMIT FORA CHURCH ADDITION (FAMILY LIFE CENTER) R0905341266 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Application of New Light Baptist Church for a Conditional Use Permitfor a church addition (Family Life Center) on property located on the south side of Indian River Road, approximately 130 feet east of Church Street (GPINs 14651915110000; 14650962130000; 14650953890000; 14650951550000; 14651904090000; 14650995250000; 14651912080000; 14650993900000; 14650973280000). DISTRICT 1- CENTERVILLE The following conditions shall be required: 1. The site shall be developed substantially in accordance with the submitted "Conceptual Site Layout Plan of New Light Baptist Church Family Life Center, Indian River Road, Virginia Beach ", prepared by MSA, P. c., dated 5131105, Said plan has been exhibited to the Virginia Beach City Council and is on file in the Virginia Beach Planning Department. a. The applicant shall install an eight (8)-foot privacy fence along the western property line, adjacent to the residential lots identified by GPIN's 1465-09-7559and 1465-09-8628 and along the southern and western property line adjacent to the residential lot identified by GPIN 1465-09-7513. 2. The building shall be constructed substantially in accordance with the submitted "Architectural Elevations and Floor Plan of New Light Baptist Church Family Life Center, Indian River Road, Virginia Beach ", prepared by MSA, P. C. , dated 5131/05. Said plan has been exhibited to the Virginia Beach City Council and is on file in the Virginia Beach Planning Department. 3. The applicant shall submit building material samples and colors to the City of Virginia Beach Planning Department for review and approval, 4. The proposed right turn inlright turn out access from Indian River Road shall not be permitted and shall be eliminated during detailed site plan review. 5, The entrances to the parking areas shall be secured during non- operational hours, September 13, 2005 - 51 - Item V-J. 5. PLANNING ITEM # 54393 (Continued) 6, A Lighting Plan and/or Photometric Diagram Plan shall be submitted during detailed site plan review. Said plan shall include the location of all pole mounted and building mounted lighting fixtures and the listing of lamp type, wattage, and type of fixture. Lighting shall overlap and be uniform throughout the parking area, All lighting on the site shall be consistent with those standards recommended by the Illumination Engineering Society of North America. The plan shall include provisions for implementing low-level security lightingfor non- business hours. 7. The applicant shall vacate all internal lot lines on the site. This Ordinance shall be effective in accordance with Section 107 (j) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Thirteenth of September, Two Thousand Five Voting: 10-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor MeyeraE. Oberndorf, Jim Reeve, Peter W Schmidt, RonA. Villanueva, James L. Wood and Rosemary Wilson Council Members Voting Nay: None Council Members Absent: Richard A. Maddox September 13, 2005 - 52- Item V-J. 6. PLANNING ITEM # 54394 Attorney Edward Bourdon, Phone: 499-8971, represented the Munden family who has owned the 71.68 acre of land over for over a century. This proposal, in the Transition Area, consists of 71 single family homes on minimum 12,000 square foot lots, All homes proposed will be 75% brick exteriors with two car garages. The homes will range in a price of$1/2 Million plus, 42.6 acres will be comprised of open space. A buffer of over 300 feet along Princess Anne Road has been preserved. The first 150 feet will be dedicated to the City with the remainder being maintained by the Homeowners Association. Attorney Bourdon advised a bridge will be constructed over the large drainage way along the eastern boundary to connect to the open space. Turn lanes (both left and right) will be installed on Princess Anne Road. Nancy Williamson, 17 Winslow Court, Annapolis, Maryland, Phone: (301) 952-6713, registered in Opposition. Mrs. Williamson is the owner of farm land (ARP) adjacent to the application. Princess Anne Road is in the rural area of the City and one of Mrs. Williamson's main objections is placing more single family homes in this agricultural area, which is developing too fast. Approximately 700 homes are already available in Ashville and Heritage Parks. On May 15, 2005, the Navy issued the opinion that this application is in the 65-70 decibel noise zone and deemed incompatible for residential development. A MOTION was made by Councilman Reeve, seconded by Councilman Wood to ADOPT an Ordinance upon application of MUNDEN LAND, LLC for a Conditional Change of Zoning District Classification. Upon SUBSTITUTE MOTION by Councilman Schmidt, seconded by Council Lady Wilson, City Council DEFERRED INDEFINITELY Ordinance upon application of MUNDEN LAND, L.L.C.for a Conditional Change of Zoning: ORDINANCE UPON APPLICATION OF MUNDEN LAND, L.L. C. FOR A CHANGE OF ZONING DISTRICTCLASSIFICATION FROMAG-1 ANDAG-2 TO CONDITIONAL PD-H2 PLANNED UNIT DEVELOPMENT Ordinance upon Application of Munden Land, L.L. C. for a ChanfIe of ZoninfI District Classification from AG-1 and AG-2 Agricultural Districts to Conditional PD-H2 Planned Unit Development District (R-10 Residential and P-1 Preservation) on property located on the east side of Princess Anne Road, approximately 1350 feet south of Sandbridge Road (GPIN 24142007960000). The Comprehensive Plan designates this site as being part of Princess Anne (Transition Area). The purpose of this zoning change is to develop 71 single- family homes, DISTRICT 7 - PRINCESS ANNE September 13, 2005 - 53- Item V-J. 6. PLANNING ITEM # 54394 (Continued) Voting: 7-3 Council Members Voting Aye: Harry E. Diezel, Robert M Dyer, Reba S. McClanan, Mayor Meyera E. Oberndorf, Peter W. Schmidt, Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay: Vice Mayor Louis R. Jones, Jim Reeve and James L. Wood Council Members Absent: Richard A. Maddox September 13, 2005 - 54- Item V-J. 7. PLANNING ITEM # 54395 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED: Ordinance to amend Section 904 of the City Zoning Ordinance (CZO) re maximum height restrictions for uses and structures in the B-3A Pembroke Central Business Core District. Voting: 9-1 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M, Dyer, Vice Mayor Louis R, Jones, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva, James L. Wood and Rosemary Wilson Council Members Voting Nay: Reba S. McClanan Council Members Absent: Richard A. Maddox September 13, 2005 1 2 AN ORDINANCE AMENDING MAXIMUM 3 HEIGHT RESTRICTIONS FOR USES AND 4 STRUCTURES IN THE B-3A PEMBROKE 5 CENTRAL BUSINESS CORE DISTRICT 6 7 Section Amended: City Zoning Ordinance 8 ~ 904 9 10 WHEREAS, the public necessity, convenience, general welfare 11 and good zoning practice so require; 12 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA 13 BEACH, VIRGINIA: 14 Sec. 904. Height regulations (Business Districts). 15 (a) The maximum height for all uses and structures within 16 the B-1 Neighborhood Business District and B-1A Limited 17 Community Business District shall be thirty-five (35) feet. 18 (b) Where a zoning lot wi thin the B-2 Community Business 19 District, B-3 Central Business District, B-3A Pembroke Central 20 Business Core District, B-4 Mixed Use District or B-4C Central 21 Business Mixed Use District adjoins the side or rear yard of a 22 zoning lot in a residential or apartment district without an 23 intervening street or alley over twenty-five (25) feet in width 24 or a body of water over fifty (50) feet in width, the following 25 maximum height regulations shall apply on that portion of the 26 commercial zoning lot within one hundred (100) feet of the 27 adjoining residential or apartment district. In cases where more 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 than one (1) of the following apply, the most restrictive shall apply. (1) When adjacent to residential district, the maximum height shall be thirty-five (35) feet. (2) When adjacent to A-12 or A-18 Apartment Districts, the maximum height shall be thirty- five (35) feet. (3) When adjacent to A-24 Apartment District, the maximum height shall be forty-five (45) feet. (4) When adjacent to A-36 Apartment District, the maximum height shall be one hundred twenty (120) feet. (c) The maximum height for hotels and motels within the B- 4 Mixed Use District is seventy-five (75) feet. (d) Except as specified in items (a) , (b) and (c) hereinabove, there shall be no maximum height regulations in the B-2, B-3, B-3A and B-4 Districts. Within the B-3A Pembroke Central Business Core District, the minimum building height shall be thirty-five (35) feet .:md the m.:mimum building height oh.:tll be four hundred (400) feet. In the B-4C Central Business Mixed Use District, minimum building height shall be thirty-five (35) feet and the maximum building height shall be two hundred (200) feet. 2 51 (e) Notwithstanding the above, no building or other 52 structure shall exceed the height limit established by section 53 202(b) regarding air navigation. 54 55 Adopted by the Council of the City of Virginia Beach, 56 Virginia, on the 13th day of September, 2005. 3 CITY OF VIRGINIA BEACH AMENDMENT TO SECTION 904 OF CITY ZONING ORDINANCE Agenda Item # 19 August 10, 2005 Public Hearing REQUEST: An Ordinance to amend the Section 904 of the City Zoning Ordinance pertaining to maximum height restrictions for uses and structures in the B-3A Pembroke Central Business Core District. SUMMARY OF AMENDMENT Currently, the B-3A Pembroke Central Business Core District has a maximum height of 400 feet. The proposed amendment deletes the height requirement, except in the limited circumstances set forth in subsection 904(b) Subsection 904(b) limits height when a site is adjacent to residential or apartment zoning without an intervening street or alley. There is no residential or apartment zoning presently located adjacent to any site zoned B-3A. The minimum height in the B-3A District is 35 feet. RECOMMENDATION It is recommended that the amendments to Section 904 of the City Zoning Ordinance be approved. A maximum height of 400 feet does not appear to serve any purpose and there is market demand for taller buildings in Town Center. CITY OF VIRGINIA BEACH - AMENDMENT TO SEC 904 OF CZO Agenda Item # 19 Page 1 Item #19 City of Virginia Beach An Ordinance to amend Section 904 of the City Zoning Ordinance pertaining to maximum height restrictions for uses and structures in the B-3A Pembroke Central Business Core District August 10, 2005 CONSENT William Din: My next item is Item #19, which is a City of Virginia Beach application also. This is an Ordinance to amend Section 904 of the City Zoning Ordinance pertaining to maximum height restrictions for uses and structures in the B-3A Pembroke Central Business Core District. Mr. Scott, are you speaking on this issue? Is there any objection to placing this on the consent agenda? If not, Mr. Scott? I'm sorry, Mr. Bourdon. Eddie Bourdon: I do have comments regarding this that I do want to make. I don't know if you want me to speak after Mr. Scott? I'm not really in opposition to what's being proposed but I believe there is additional changes that need to be made. ~ Dorothy Wood: Is it alright if he gets his comments? He doesn't have an objection for it being on consent. You just have comments. Am I right Eddie? Eddie Bourdon: That is correct. Robert Scott: This change is relatively simple. Dorothy Wood: After Mr. Scott, Mr. Bourdon we'll be glad to hear your comments. Robert Scott: It simply pertains to the maximum height requirements in the B-3A, which is our major central business district. It's the core of the area. Accordingly, I think it's an area that we would expect to have significant high-rise buildings and we feel that the height requirement in that area is probably not needed. Weare trying to get a lot taller buildings in that area. And accordingly, our suggestion would be to remove the height requirement in that district. That is what this is all about. Dorothy Wood: Thank you sir. Mr. Bourdon. Eddie Bourdon: Thank you Madame Chair. We concur whole-heartedly with staff's conclusion that there does not need to be a maximum height limitation in the Central Business Core District. We also believe that in the B-4C Central Business Mixed Use District, which abuts it, there also needs not be a height limitation. The surrounding land uses are the same. When we went through and created the B-4C Central Business Mixed Use District a few months back, therefore the Cityview property, the proposal was that there be a 300 foot height limitation, and at the last minute that was changed to 200 feet Item #19 City of Virginia Beach Page 2 with the argument being there were 400 feet into the Central Business Core District, 200 next to it. And frankly, between the interstate and the Central Business District we don't feel there is any. It is all going to be urban. We're talking about an urban corridor and the idea of leaving the B-4C at 200 feet when right adjacent to it, a half a sand wedge away, we're talking about no height limitations at all. We frankly, and you got a memorandum that was sent with a proposed change, an amendment to include the B-4C Central Business Mixed Use District as also not having the height limitation. We're certainly not limiting it to 200 feet when right adjacent to it you have no limitation at all. It was just approved at 500 foot plus hotel in the district. And again, very close by they're adjacent to existing condominiums that have been there for years. Those condos are across the water from Cityview. We would propose that this be approved in addition that the height limitation is really not necessary in the B-4C as well. Dorothy Wood: Thanks Eddie. Eddie Bourdon: Thank you. Dorothy Wood: Mr. Scott? Is this something that you would want to do may be next month or would you please give us some advice? ,.......,...., Robert Scott: I think you ought to act on what's in front of you and take this other thing up as a separate measure. I understand the comments that are being made. I'm less enthusiastic about make that adjustment in the B-4C, although we can certainly look at it. I think the case is clear for B-3A. It is a core area. I think there are some urbanism that comes in degrees and this is why we're suggesting to you that the Town Center area and the area, which is the core of our area is one degree, and when we have other areas that are somewhat of a different nature. There probably is a need for some sort of height regulation in there. We could look at it but I think we ought to do it as a separate issue and we can look at it separately. And I suggest that you act on what's before you today. Bill Maca1i: Madame Chair? I note that you can only act on what's before you today. Dorothy Wood: Thank you sir. I appreciate that. Thank you. Then they could bring that up next month or at a different time. Thank you sir. William Din: Okay. I would like to make a motion to place on the consent agenda for today. Item #19, which is the City of Virginia Beach, it's an ordinance to amend Section 904 of the City Zoning Ordinance pertaining to maximum height restrictions for uses and structures in the B-3A Pembroke Central District and there are no conditions associated with that one. That is my motion. Do I hear a second? Donald Horsley: Second. William Din: A second by Mr. Horsley. Item #19 City of Virginia Beach Page 3 Dorothy Wood: Mr. Ripley. Ronald Ripley: I want to abstain from Item #19. Mr. Bourdon spoke for a company that I have an interest in, which would have had an affect if there had been a change to this ordinance. Thank you. Dorothy Wood: Thank you. AYE 10 NAY 0 ABSl ABSENT 0 ANDERSON AYE CRABTREE AYE DIN AYE HORSLEY AYE KA TSIAS AYE KNIGHT AYE MILLER AYE RIPLEY ABS STRANGE AYE WALLER AYE ~ WOOD AYE Dorothy Taylor: By a vote of 10-0, with the abstention so noted, the Board has approved Item # 19 for consent. Dorothy Wood: Thank you very much. - 55 - Item V-K.1. APPOINTMENTS ITEM # 54396 BY CONSENSUS, City Council RESCHEDULED: EASTERN VIRGINIA HEALTH SYSTEMS AGENCY HEALTH SERVICES ADVISORY BOARD HISTORICAL REVIEW BOARD INVESTMENT PARTNERSHIP ADVISORY COMMITTEE - PPEA PARKS AND RECREATION COMMISSION PERSONNEL BOARD (Alternates) PUBLIC LIBRARY BOARD REVIEW AND ALLOCATION COMMITTEE (COG) September 13, 2005 - 56- Item V-No ADJOURNMENT ITEM # 54396 Mayor Oberndorf DECLARED the City Council Meeting ADJOURNED at 9:11 P.M. /j) GJ'~ tJ. 7% ~1/'.AJ -----~~-~---------------------- Beverly 0. Hooks, CMC Chief Deputy City Clerk q;;-te-;;?-- City Clerk Meyera E. Oberndorf Mayor City of Virginia Beach Virginia September 13, 2005