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JUNE 26, 2007 MINUTES CITY OF VIRGINIA BEACH "COMMUNITY FOR A LIFETIME" CITY COUNCIL MAYOR MEYERA E. OBERNDORF, At-Large VICE MAYOR LOUIS R. JONES, Bayside - District 4 WILLIAM R. DeSTEPH, At-Large HARRY E. DlEZEL, Kempsville - District 2 ROBERT M. DYER" Centerville - District I BARBARA M. HENLEY, Princess Anne - District 7 REBA S. McCLANAN, Rose Hall - District 3 JOHN E. UHRIN, Beach .- District 6 RON A. VILLANUEVA, At-Large ROSEMARY WILSON, At-Large JAMbS L. WOOD, Lynnhaven -District 5 CITY COUNCIL AGENDA CITY HALL BUILDING 2401 COURTHOUSE DRIVE VIRGINIA BEACH, VIRGINIA 23456-8005 PHONE:(757) 385-4303 FAX (757) 385-5669 E-MAIL: Ctycncl@vbgov.com CI1Y MANAGER - JAMES K. SPORE CITY ATTORNEY - LESLIE L. LILLEY CITY CLERK - RUTH HODGES FRASER, MMC 26 JUNE 2007 1. CITY COUNCIL BRIEFING - Conference Room - 1:00 PM A. VIRGINIA BEACH COMMUNITY DEVELOPMENT CORPORATION (VBCDC) - Annual Activity Report Andy Friedman, Director, Department of Housing and Neighborhood Preservation Mary Kay Horoszewski, Executive Director II. CITY MANAGER'S BRIEFINGS A. WATER QUALITY BUFFER Clay Bernick, Environmental Management Administrator - Planning B. HEALTH CARE James K. Spore, City Manager III. CITY COUNCIL COMMENTS IV. REVIEW OF AGENDA V. INFORMAL SESSION - Conference Room - 3:30 PM A. CALL TO ORDER - Vice Mayor Louis R. Jones, Presiding B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION V1. FORMAL SESSION - Council Chamber - 6:00 PM A. CALL TO ORDER - Mayor Meyera E. Oberndorf B. INVOCATION: Reverend Dan B. Goff, DD Pastor, Calvary Assembly of God 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 June 12, 2007 G. AGENDA FOR FORMAL SESSION H. MAYOR'S PRESENTATION - Vice Mayor Louis R. Jones 1. ACHIEVEMENT for EXCELLENCE in FINANCIAL REPORTING Government Finance Officers Association Patricia A. Phillips - Director - Finance 1. CONSENT AGENDA J. RESOLUTIONS/ORDINANCES 1. Resolution re a REGIONAL CONSENT ORDER dealing with sanitary sewer overflows 2. Resolution to EXTEND to January 1, 2008, the suspension of increases in health insurance premiums for Retirees 3. Ordinances to ADD, AMEND, REPEAL and/or REORDAIN the City Code to reflect provisions of the State Code as adopted by the 2007 General Assembly: a. ~S 6-122 - 6-122.3 re administration of breath or blood tests from within two hours to within three hours of boating under the influence b. ~~2-462 and 2-464 re Sheriff being designated as the State mandated High Constable c. ~~21-303, 21-307, 21-312 re State Inspection Decals and other parking prohibitions d. S~23-22.1 and 23-22.2 re drinking alcoholic beverages in, and definition of, "public places" e. ~23-43.1 re disruptive passengers on public transportation constituting Class 4 Misdemeanor and defining "public transportation service" f. ~38-2.1 re requiring fingerprinting for new concealed weapon permits only 4. Ordinances re Beaches and Waterways Advisory Commission a. AMEND and REORDAIN ~6-162 of the City Code re terms of members b. AMEND by-laws re removal of staggered terms 5. Ordinance to AUTHORIZE execution ofa Deed of Release and Exchange re an Agricultural Lands Preservation (ARP) easement for GEORGE B., JR. and JUANITA F. PENDLETON re a three acre building site at Indian Creek Road near Baum Road DISTRICT 7 - PRINCESS ANNE 6. Ordinances to AUTHORIZE temporary encroachments into portions of City property by DAVID F. and JERRY A. HARRIS to remove an existing float, ramp and pier to construct the same and repair the pier at 700 Kennedy Avenue in Lake Rudee DISTRICT 6 - BEACH 7. Annual PERMIT RENEW AL for area private and non-profit EMS organizations: American Lifeline Medical Transport Children's Hospital of the King's Daughters Eastern Shore Ambulance Life EV AC of Virginia Medical Transport Lifeline Ambulance Service, Inc. Medical Transport Nightingale Regional Air Ambulance Network Medical Systems 8. Ordinance to APPOINT the Directors of Parks and Recreation, Planning and Public Works as Viewers for one-year terms beginning July 1, 2007, re closures of City streets and alleys. 9. Ordinances to ACCEPT and APPROPRIATE grant funds from the Virginia Department of Transportation (VDOT) to ESTABLISH new Capital Improvement Programs (CIP), Bicycle and Pedestrian Safety, re installation of pedestrian signs and flashing lights: a. $63,450 for P ACIFIC AVENUE between 5rh and 43rd streets b. $36,288 for SHORE DRIVE between Kendall Street and Vista Circle Ordinances to ACCEPT and APPROPRIATE: c. $322,999 from the State Compensation Board and $235,479 from the Sheriff's Special Revenue Fund to his budget re pay increases for uniformed personnel d. $300,000 in earned revenue from admissions and store sales to the Virginia Aquarium Special Revenue Fund e. $29,983 from Eagle Cove Subdivision re Cash-in-Lieu-of-Park Reservation-Payment for park improvement within the Indian River/Elbow Road corridor f. $16,802 from the Virginia Tobacco Settlement Foundation re "Too Good For Drugs" (TGFD) program to be administered by Parks and Recreation g. $2,426 from the American Cancer Society to compensate Hampton Roads Transit (HRT) re shuttle service for the Relay for Life fundraiser K. PLANNING 1. Applications at 1763 Princess Anne Road DISTRICT 7 - PRINCESS ANNE a. HAC PROPERTIES, LLC, re Modification of Proffer No 3 to allow low speed motor vehicle sales, and future retail establishments, laboratories for the production and repair of eye glasses, hearing aids and prosthetic devices (approved on June 22, 2004) RECOMMENDA nON APPROV AL b. NORMA DIANE PAYNE HEWIT t/a ARGO OF TIDEWATER for a Conditional Use Permit re sale oflow speed vehicles at 1763 Princess Anne Road RECOMMENDATION APPROV AL 2. Application of CAVALIER GOLF & YACHT CLUB for a Conditional Use Permit re a golf club Agronomy facility at Kamichi Court. DISTRICT 5 - L YNNHA VEN RECOMMENDATION APPLICANT REQUESTS DEFERRAL TO JULY 10, 2007 APPROV AL 3. Application of SOUTH INDEPENDENCE ACQUISITION, L.L.c., for a Chanf!e of Zoninf! District Classification from R-5D and R-I0 Residential Districts to Conditional A-36 Apartment District, Conditional B-4 Mixed Use District and Conditional A-12 Apartment District with a PD-H2 Overlay at South Independence Boulevard, Princess Anne Road and 1632 Salem Road, "Spence Farm," re 103 single-family dwellings, 347 townhomes, and 230 twin townhomes and Senior Housing ("Renaissance Park") DISTRICT 1 - CENTERVILLE and DISTRICT 7 - PRINCESS ANNE DEFERRED RECOMMENDATION PLANNING COMMISSION RECOMMENDA nON MAY 22, & JUNE 12, 2007 APPROV AL APPROV AL WITH PROFFER L. APPOINTMENTS BIKEW A YS AND TRAILS HUMAN RIGHTS OPEN SPACE ADVISORY COMMISSION REVIEW AND ALLOCATION COMMITTEE - COG M. UNFINISHED BUSINESS N. NEW BUSINESS O. ADJOURNMENT CITYWIDE TOWN MEETINGS September 18 Time and Location to be Announced FY 2008-2010 Budget November 20 Green Run Homeowners Association Building -7:15 pm Srormwa~rPfflnsandFundmg CITY COUNCIL SUMMER SCHEDULE July 3 July 10 July 17 Cancelled Briefings, Informal, Formal, including Planning items Briefings, Informal, Formal, including Planning items August 7 Cancelled August 14 August 21 August 28 Briefings, Informal, Formal, including Planning items Briefings, Informal, Formal Briefings, Informal, Formal, including Planning items ********* If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 385-4303 *********** Agenda 6/26/07st www.ybgoy.com - 1 - MINUTES VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia June 26, 2007 Vice Mayor Louis R. Jones called to order the City Council Briefing re VIRGINIA BEACH COMMUNITY DEVELOPMENT CORPORATION (VBCDC) in the City Council Conference Room, City Hall, on Tuesday, June 26,2007, at 1:00 P.M Council Members Present: William R. "Bill" DeSteph, Harry E. Diezel, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, John E. Uhrin and Ron A. Villanueva Council Members Absent: Mayor Meyera E. Oberndorf [Attending Us. Conference of Mayors 75th Annual Meeting] Robert M Dyer [Entered: 1:20 P.M - Luncheon] Rosemary Wilson [Entered: 1:35 P.M] James L. Wood [Entered: 1:30 P.M -Luncheon] June 26, 2007 - 2 - CITY COUNCIL BRIEFING VIRGINIA BEACH COMMUNITY DEVELOPMENT CORPORATION (VBCDC) 1:00 P.M. ITEM # 56558 Andy Friedman, Director - Department of Housing and Neighborhood Preservation, advised the Virginia Beach Community Development Corporation is a City Council appointed Board (created -1985), as well as a special entity, a nonprofit 501(c)(3) corporation. The Virginia Beach Community Development Corporation (VBCDC) owns real estate in the City worth considerably more than $20-MILLION plus improvements valued at approximately $10-MILLION on this real estate. VBCDC has an annual operating budget of approximately $3-MILLION VBCDC is considered a financial entity of the City and is reviewed as part of the Comprehensive Annual Financial Report. The VBCDC has successfully fulfilled their role by creating low and moderate income housing opportunities in the City. This has been accomplished on a financially sound basis and VBCDC has become close to self-sustaining. VBCDC has increased their assets, operating revenue and managed carefully. A growing role is envisioned for VBCDC in the development of more affordable housing, as well as workforce housing. Mr. Friedman introduced Mary Kay Horoszewski, Executive Director, Virginia Beach Community Development Corporation. Mary Kay Horoszewski recognized the Virginia Beach Community Development Board of Director (appointed by City Council) Greg Dragas President Barbara Clevenger Vice President Carol Hare Secretary/Treasurer Members Elsie Barnes Brian Camden Ann K. Crenshaw Chris Fanney Denise Howard Helen Moore Emmanuel Voces Skip Templeton Ms. Horoszewski reiterated the VBCDC Purpose: "Provide housing opportunities for low and moderate income families and assist THE City in neighborhood revitalization" June 26, 2007 - 3 - CITY COUNCIL BR1EFING VIRGINIA BEACH COMMUNITY DEVELOPMENT CORPORATION (VBCDC) ITEM # 56558 (Continued) A flow chart was depicted, noting the City Council appoints the Board of Directors. The Executive Director is employed by the Board of Directors. Currently three (3) departments; Finance, Community Development and Operations, compose the VBCDC. At the present time, the staff consists of twenty-one (21) members. The Operating Revenue for this Fiscal Year is approximately $2.9-MlLLION. 64.90% of the Revenue is .from rental and other income, with 5.1% .from development fees, 22.5% - Federal Grants, State Grants - 3.3% and City Funding - General Revenue - 4.1%. VIRGINIA BEACH COMMUNITY DEVELOPMENT CORPORA TIONIFISCAL YEAR 2007-2008 Operating Revenue 2006 . Development Fees $149,077 5.1% o Rental & Other Income $1,899,739 64.90% . State Grants $97,561 3.3% I3l Federal Grants $660,068 22.5% o City Funding $120,793 4.1% June 26, 2007 - 4 - CITY COUNCIL BRIEFING VIRGINIA BEACH COMMUNITY DEVELOPMENT CORPORATION (VBCDC) ITEM # 56558 (Continued) The Virginia Beach Community Development Corporation (VBCDC) has a Continuum of Housing. Continuum of Housing The Emergency Shelter houses two (2) families at anyone time for up to ninety (90) days. Transitional Housing is temporary for families and individuals up to twenty-four (24) months. Individuals are eligible for various case management services. Permanent Rental Housing serves individuals with disabilities, low income elderly as well as families and individuals. The Homeownership program has been accomplished through new construction, rehabilitation of existing properties and home buyer education. Who Do We Serve? . Low-moderate income families, elderly and disabled persons . Homeless families and individuals . 2/3 of the tenants make less than 50% of the area median income-$28,850 . The median income of tenants is $19,590, (for a family of three, this is less than 40% of the area median income) . 75% of the tenants are workingfamilies . Of the 25% that do not work, the majority are disabled or elderly Mary Kay Horoszewski displayed various examples of Transitional Housing. Approximately 267 properties are owned and scattered throughout the City. The Transitional Housing Program provides housing and services: case management, life skills education, childcare, utility assistance, education, transportation, health/dental, housing start-up and food assistance. Photographs of Permanent Rental Housing, comprising units in the Green Run Area, Lake Edward, Campus East, Kempsville, Oceana Area and Rosemont were depicted. Eight (8) units are available for low income senior citizens. Beach Park is a small multi-family housing for persons with disabilities. Beach Park is comprised often (10) units and is located behind the Arts Center. This project is in cooperation with the Virginia Beach Human Services Department. Atlantis Manor, located in the Bayside Area, Newsome Farm, is comprised of twelve (12) units and serves persons with disabilities. Human Services staff res ides on-site in one of these units. June 26, 2007 - 5 - CITY COUNCIL BRIEFING VIRGINIA BEACH COMMUNITY DEVELOPMENT CORPORATION (VBCDC) ITEM # 56558 (Continued) A few years ago, a single family home, Gladiola Crescent Group Home, was purchased. A large addition was added, comprised of a fifth bedroom and a second fully accessible bathroom. Five (5) developmentally disabled residents reside in this home. Human Services staff is on-site, on a "24-hour, 7 day-a-week basis". Two (2) years ago, Bitnet Village was developed in cooperation with the Virginia Beach Community Development Corporation, Housing and Neighborhood Preservation, Human Services, and a non-profit BIZnet, Incorporated. The City donated the land to VBCDC, which was responsible for obtaining the various grants and financing to construct two (2) intermediate care facilities. Biznet is located off West Neck Road. Each of the two (2) buildings has twelve (12) bedrooms. Housing will be provided for people with profound, developmental disabilities. Human Services' staff will be on-site, on a "24-hour, 7 day-a-week basis". This project is approximately 80% complete, and, hopefully, an Open House will be conducted in the Fall. The Homeownership program was commenced in 1987. An example of the 10(jh house sold (Princess Anne District) to a First Time Homebuyer was depicted. Examples of Rehabilitation of existing properties were also displayed. In September 2002, Andrew Friedman, Mary Kay Horoszewski and staff traveled to Roanoke and attended the Conference where they received at the Governor's Housing award for Best Housing Collaboration. This award recognized VBCDC's project, under the Federal Low Income Housing Tax Credit Program (32 scattered sites). Achievements . Assisted one hundred twenty-eight (128) families to purchase homes through "first time home buyers" program . Own/Manage two hundred sixty-seven (267) rental units on scattered sites in Virginia Beach . Developed thirty-two (32) units for Low Income Housing Tax Credit project . Fourteen (14) VBCDC Tenants purchased homes from VBCDC . Developed housing for persons with disabilities . Lead agency for HUD Homeless Management Information System . Expanded partnerships: with DHS & Biznet, Inc. . Conducted First time Buyer Education Program Vision for the Future . Assist in Operating the Workforce Housing Program . Expand Homeownership opportunities for low and moderate income families . Develop rental housing for low and moderate income families . Develop rental housing for persons with disabilities . Develop rental housing and services for low income seniors Mary Kay Horoszewski advised, concerning more housing for people with profound, developmental disabilities, 90% of these individuals are not capable of living on their own. Biznet Village is not an institution. There is room for additional housing on this site; however, some portions of this site are wetlands. City Council expressed appreciation for Mary Kay's management and VBCDC's dedicated activities. They appreciate receiving monthly minutes re the Virginia Beach Community Development Corporation (VBCDC). June 26, 2007 - 6 - CITY MANA GER 'S BRIEFING WATER QUALITY BUFFERS 1 :40 P.M. ITEM # 56559 Clay Bernick, Environmental Management Administrator - Planning, advised concerning the four (4) major areas addressed re Water Quality Buffers: . Benefits (Functions and Values) . General Design Criteria . General Location Criteria . Policy Considerations WHY BUFFERS? .. The United States is obsessed with grass: . 30-MILLION acres of lawn managed . $800-MILLION annually on grass seed . 2.5 to 5-MILLION tons of fertilizer annually . 70-MILLION pounds of pesticides annually . Grass clippings 25-40% landfill space in growing season . 10, OOO-square foot lawn requires 10.000 gallons of water per summer in lawn irrigation . 30% of East Coast water goes to lawn irrigation . Lawn mowers emit 10 (ten) times more hydrocarbon emissions than a typical car per hour of operation -- string trimmers twenty-five (25) times and leaf blowers thirty-four (34) times The City needs to change their practices re air and water quality, human health, wildlife, microclimate and economics. Mr. Bernick advised: BENFITS Water Quality .. Purify Water Runoff .. Improve Water Clarity .. Improve Water Temperature Erosion and Sediment Control .. Stabilize Soils with Plant Root systems .. Reduce Shoreline Erosion and Stabilize Stream bank or Shoreline .. Sediment Reduction .. Improve Soil Quality Nutrient and Chemical Control .. Phosphorus Loading Reduction .. Nitrogen Loading Reduction .. Contaminants Loading Reduction .. Carbon Sequestering (instead of emitting into the atmosphere) June 26. 2007 - 7 - C IT Y MANA G E R 'S B R IE FIN G WATER QUALITY BUFFER ITEM # 56559 (Continued) Hydrologic + Reduce Runoff by Increasing Infiltration + Reduce Flood Severity + Replenish Groundwater Supplies Habitat + Improve Terrestrial Wildlife Habitat + Improve Aquatic Wildlife Habitat + Improve Aquatic Fish Habitat + Improve Aquatic Benthic Habitat Other + Generate Harvestable Products + Enhance Natural Scenic Beauty + Manage Sustainable Landscape Aesthetics The Lynnhaven and Back Bay are huge nursery area headwaters for the Albemarle Pamlico System to the south in North Carolina. This year, individuals were able to eat oysters out of the Lynnhaven for the first time in many years. Within the next two (2) weeks, there will be discussion re a major project from the United States Army Corps of Engineers re constructing over one hundred (100) acres of oyster reefs and seed them with oysters this coming year. Mr. Bernick displayed a photograph depicting a buffer area, located on the Elizabeth River near Carolanne Farms, which was constructed with grant fund approximately ten (10) years ago, DESIGN CRITERIA Sustain ability is Key and Considerations should include: + Functional + Maintainable + Environmentally Sound + Cost Effective + Visually Pleasing + Optimum Width + Jump Start Natural Process Relative optimum width buffers, the State mandates one hundred (100) feet in the Chesapeake Bay Watersheds. The City mandates, for the local ordinances, fifty (50) feet in the Southern Watersheds. Basically, any kind of buffer will assist. Design Sequence for Buffer Restoration and Enhancement + Site Data Survey + Physical Site Analysis + Develop Plan + Develop Materials List and Budget + Construction + Maintenance June 26, 2007 - 8 - C IT Y MANA G E R 'S B R IE FIN G WATER QUALITY BUFFER ITEM # 56559 (Continued) DESIGN SPECIFICS ., Buffer Preference - Natural, Managed, Specialty ., Plant Selection - Types, Sources ., Soil Enhancement - Nutrients, Mulch ., Project Cost - approximately $0.20-0.25 per square foot if using seedlings and self-installed LOCATION CRITERIA ., Waters on or Connected to Natural or Free Flowing Systems ., Disturbed or Degraded Riparian Areas ., Impaired Waterways ., Open Space Corridors POLICY CONSIDERATIONS ., Green Ribbon Committee ., Regulatory Boards (Wetlands, Chesapeake Bay Preservation Area) ., City Properties ., Encroachment Requests ., Development Review Process ., Conservation Easements ., Incentives Mr. Bernick advised the Regulatory Boards (Wetlands and Chesapeake Bay Preservation Area Boards) are increasingly placed in the position of having to address policy considerations re water quality buffers as part of their review requirements. Mr. Bernick displayed photographic examples of buffer projects. Mr. Bernick advised recommendations will be forthcoming from the Green Ribbon Committee re tree protection and replacement. The Committee has been working with the City Attorney's office relative this issue. There are some very strong provisions of State Law limiting localities' authority re trees. There will be recommendations to be contained within the Legislative Package to request the General Assembly to reduce some of this limitation. This authority has been given to some of the localities in Northern Virginia. The City Council will receive a presentation on August 14, 2007, re the Legislative Package. Education outreach will be conducted with information on the City's website: www. vbgov.com and prepackaged presentations to Civic Leagues. Council Members expressed appreciation to the Green Ribbon Committee and their dedicated efforts re producing the excellent CityWide Town Meeting at the Virginia Beach Convention Center, June 19, 2007 - ((Shaping our Community and Ourselves to Protect our Waterways." June 26, 2007 - 9- C IT Y MANA G E R 'S B R IE FIN G HEALTHCARE 2: 12 P.M. ITEM # 56560 The City Manager introduced Susan Walston, Chief of Staff and David Hansen, Chief of Finance and Technology to discuss the City's current practice re Health Care Plan, Retiree Liability and the consequences of GASB 45. The goal is to make certain all have a common understanding of the currenf practice of the City's Benefits. As health care costs have continued to escalate over the last number of years, many companies in the private sector have been "cutting back" on benefits. This reduction has not been as strong in the public sector. This Healthcare issue entails a major expenditure in terms of employee and city contributions. David Hansen recognized representatives from Virginia Beach City Public Schools, Farrell E. Hazaker, Chief Financial Officer and Linda Matkins, Combined Benefits Officer. Mr. Hansen advised he will attempt to answer the question: "What is staff doing in regards to making City contributions and setting employee premiums for health care?" Current Practice - Total Costs Type Number Actual enrolled Cost EE 7,075 $4,131 EE + 2,232 $13,254 Family EE 861 $6,097 Retired EE Ret + 291 $12,227 Spouse Employer EE Total % of Contribution Share Premium cost $5,225 $0 $5,225 $5,225 $6,009 $11,234 $5,225 $0* $5,225** $5,225 $4,463 $9,688 I Totals 114,462 I I $75.56M I $23.73M I $99.3M .VBCPS: $474 ..VBCPS $5,699 15 *Virginia Beach City Public Schools have followed through on the Employees Benefits Review Task Force Recommendations and requested their Retirees pay a premium increase of $474 a year. **The total premium for Virginia Beach Public Schools is $5,699, as opposed to the City's total premium being held at $5,225. The $99.3-MILLION Total Premium is a decrease from the projected $102-MILLION cost. Mr. Hansen advised the Total Premium percentage of cost is 126% for an eligible single employee and that is the method in which the Implicit Subsidy is created. The Implicit Subsidy is a contribution that is greater than the actual cost of the active single employee's actual cost. June 26, 2007 - 10 - CITY MANA GER 'SBRIEFING HEALTHCARE ITEM # 56560 (Continued) Current Practice - Total Costs Type Number Actual enrolled Cost EE 7,075 $4,131 EE + 2,232 $13,254 Family EE 861 $6,097 Retired Employer EE Total Contribution Share Premium $5,225 $0 $5,225 $5,225 $6,009 $11,234 $5,225 $0* $5,225** I Totals 114,462 I I $75.56M I $23.73M I $99.3M Implicit subsidy generated by Active single EE: $5225 - $4131= $1094 $1094 x 7075 = $7.74M *YBCPS: $474 **YBCPS $5,699 16 Current Practice - Total Costs Type Number Actual enrolled Cost EE 7,075 $4,131 EE + 2,232 $13,254 Family EE 861 $6,097 Retired Employer EE Total Contribution Share Premium $5,225 $0 $5,225 $5,225 $6,009 $11,234 $5,225 $0 $5,225 I $75.56M I $23.73M I $99.3M I Totals 114,462 I City contribution beyond Active single EE actual costs: $5225 - $4131= $1094 $1094 x 14,462 = $15.82M (of which $7.74M is implicit subsidy) 17 Mr. Hansen referenced changing the City'S contribution to match exactly the cost of the single active employee; instead of a $5,225 contribution, thereby creating a $1094 change in the contribution per member participating across all the tiers and this would create a $15.82-MILLION savings for the employer (the City). A reduction in employer contribution from $75. 56-MILLION to $59. 74-MILLION would result. This premium cost would be transposed onto the employees, because the cost of medical coverage does not change under the current plan, still costing the City $99.3-MILLION annually. June 26, 2007 - 11 - C IT Y MANA G E R 'S B R IE FIN G HEALTHCARE ITEM # 56560 (Continued) Current Practice - Total Costs IChahg~(Citycontributj()ntQeq!4~IACtiVe$in9Ieeec()stl Type Number Actual Employer EE Total 1 enrolled Cost Contribution Share Premium EE 7,075 $4, 1 31 ~ $4,131 $0 ~ $4,1 EE + 2,232 $1 3,254 $~$4,131 ~ ~4 I Family $9,123 $13,2 EE 861 $6,097 ~ $4,131 ~ ~ I Retired $1 ,966 $6,0 . 31 54 97 I Totals 114,462 I $~M $99.3M $39.56M To eliminate the entire implicit subsidy: EE + Family share would have to increase 52% EE single retired share would increase $1,966 from $0 18 Current Practice - Total Costs e Single EE Cost Type Number Actual Employer EE enrolled Cost Contribution Share EE 7,075 $4,131 ~$4,131 $0 ~ $4,131 EE + 2,232 $13,254 ~$4,131 ~ ~4 $13,25 Family $9,123 EE 861 $6,097 ~$4,131 ~ $6,097 Retired $1,966 EE Ret + 291 $12,227 ~$4,131 Spouse $8,086 $12,227 I Totals \14,462 $99.3M To eliminate the entire implicit subsidy: EE + Family share would have to increase 52% EE single retired share would increase $1,966 from $0 19 EE Ret + Spouse would increase 81% June 26, 2007 - 12 - C IT Y MANA G E R 'S B R IE FIN G HEALTHCARE ITEM # 56560 (Continued) Mr. Hansen displayed charts depicting the Blended Rates. What if the City contribution was reduced from $5,225 to a blended rate based on single subscribers both active & retired? TVDe Active EE Retired EE ).> Blended Rate Enrolled 7,075 861 Cost $4,131 $6,097 $4,354 Blended Rate Type Number Actual enrolled Cost Single EE 7,075 $4,131 Employer EE Total Contribution Share Premium $4,354 $0 $4,354 ~ $5,225 - $4354 = $871 reduction per EE ~ $871 x 7,075 = $6.16M reduction in City contribution (from Single active EE) ~ However, because the total premium required is not reduced from $99.3 million, this $6.16 million reduction of implicit subsidy must be spread to all other participating employees whose actual costs exceed the City's blended contribution. ~ 14,462 -7075 = 7,387 ~ $6.16 million + 7,378 = $834 added to the employee share for 28 active and retired families and retired employees. Blended Rate Type Number Actual enrolled Cost EE 7,075 $4,131 EE + 2,232 $13,254 Family Employer EE Total Contribution Share Premium $4,354 $0 $4,354 $4,354 $7,714 $12,068 ~ $5,225 - $4,354 = $871 (Transfer of City Contribution reduction to EE) ~ Distribution of the implicit subsidy ($6.16M + 7,387) = $834 ~ $6,009 + $871 + $834 = $7,714 (28% increase) 30 June 26, 2007 - 13 - C IT Y MANA G ER 'S B R IE FIN G HEALTHCARE ITEM # 56560 (Continued) Blended Rate Type Number Actual enrolled Cost EE 7,075 $4,131 EE + 2,232 $13,254 Family EE 861 $6,097 Retired Employer EE Total Contribution Share Premium $4,354 $0 $4,354 $4,354 $7,714 $12,068 $4,354 $1 ,705 $6,059 ~ $5,225 - $4,354 = $871 ~ Implicit subsidy transfer $834 ~ $0 + $871 + $834 = $1,705 City retirees currently paying $0 and VBCPS retirees are paying $474. 32 Blended Rate - Total Costs Type Number Actual enrolled Cost EE 7,075 $4,131 EE + 2,232 $13,254 Family EE 861 $6,097 Retired Employer EE Total Contribution Share Premium $4,354 $0 $4,354 $4,354 $7,714 $12,068 $4,354 $1,705 $6,059 I $62.97M I $36.3M I $99.3M I Totals 114,462 I ';r City Contribution Reduced $12.59M Unfortunately, the total health care premium cannot be reduced; therefore, the $12.59M is transferred to all participating members whose actual health care costs exceed the blended rate City contribution 33 Relative the practice of providing health care subsidy to retired City employees and their dependents care, the City Manager referenced the previous adoption of three (3) Resolutions by the City Council. Resolution to provide health care coverage to Virginia Beach City Employees who retire prior to age 65 with at least twenty-five (25) years of Service Credit (Adopted: December 16,1985) June 26, 2007 - 14 - C IT Y MANA G E R 'S B R IE FIN G HEALTHCARE ITEM # 56560 (Continued) Resolution to provide Health Care Coverage to Virginia Beach City Employees who retire prior to age 65 with at least twenty-five (25) years of Service or on a Work Related Disabilitv after IJfteen (15) vears of service. (Adopted: May 29,1990) Resolution to provide Health Care Coverage to Virginia Beach City Employees who retire prior to age 65 with at least twenty-five (25) years of Service or on a Work Related Disability <<fief f-ifteen (15) yell'S o-f sen'ice with five (5) or more vears of service. (Adopted: December 15,1992) Susan Walston, Chief of Staff, advised documentation could not be found relative establishing a policy for this practice of subsidizing health care for dependents of retired City employees. Susan Walston has determined the idea of the "employee only" premium subsidizing the dependent tiers has been in practice a long time. Establishing one flat contribution for everyone is not the most common practice across plans, but how this amount is utilized to subsidize the other tiers is very comparable to the cities of Chesapeake, Norfolk and Newport News (who pay a percentage of all planned tiers). Councilman DeSteph requested the City Attorney advise concerning his interpretation of the 1992 Resolution. The City Attorney advised he cannot find any support for the dependent contribution, but this has been a consistent practice for many years, to include the dependent coverage. The Employees Benefits Task Force began with one (1) individual, a Payroll Supervisor, in the Finance Department, which expanded over the years. The City Councils have probably voted on total cost, but were not involved with all the details. With GASB, a through review of all the calculations has become imperative. As long as the City Attorney has been associated with the City, the dependent contribution has been a practice. Councilman DeSteph advised Resolutions have been drafted by the Employees Benefits Review Task Force concerning this issue of retired dependent subsidy. The impact is substantial. The City Council was not aware of paying this and the employees did not know they were being given this benefit. Susan Walston, Chief of Staff, advised relative actual costs for the first quarter of 2007, Mercer and Associates has taken these costs with the data provided by the Health Provider and calculated the annualized costs based upon typical trends (peaks during certain times of the year). $4,131 is the calculated annual cost for 2007 (employee only). The $5,225 premium established for this year was adopted in the City's Budget for this Fiscal Year and projected at a 14% increase from the previous year, based on trend costs. Mr. Hansen advised re the increase to $5,750, medical costs are projected to grow 10% (between 10% and 11% for 2008) Mercer keeps the City apprised of the medical industry and growth in cost of health care, plus they review the applicability of the City's safety programs, disability rates and cost associated with retiree versus active employee. Vice Mayor Jones advised as a conscious decision was made to subsidize dependent health care that this be utilized to depict how this impacts the Implicit Liability under Governmental Accounting Standards Board (GASB) 45. Ms. Walston referenced the long term implications of Governmental Accounting Standards Board (GASB 45), which requires the City to account for future retiree health care costs as workers earn the benefits. June 26, 2007 - 15 - CITY MANA GER 'SBRIEFING HEALTHCARE ITEM # 56560 (Continued) This particular evaluation was accomplished in October 2006 and was based on the Census population of June 2006. The June enrollment, plan design, trends in claims costs, contributions and premiums, as well as the assumptions of morality, turnover and retirement age rates was reviewed. GASB 45 Financial Results - City and Schools Liability and ARC Calculations for 2007 Annual Required Contribution Expected 2007 Costs Cash Flow Increase 16.7 3.5 0.0 23.1 6.2 0.0 9.7 0.0 3.5 8.5 6.2 10.5 9.7 19.0 . The City of VA Beach would need to disclose in the financial statement a liability of: - $332.2 million if unfunded - $200.6 million if funded . Based on GASB 45 rules, if the City decides to attain a funded status, the City must establish a formal OPEB funding policy . Projected first year deposit = $28.7 million (the ARC) _ Plan costs (retiree claims & expenses) should be paid from this amount Mercer Health & Benefits 21 Breakdown of GASB Liability by Contribution (Explicit Subsidy) and Implicit Subsidy = $332.2M City VBCPS Explicit Implicit Explicit Implicit Employees reaching 25 or more years of service $ 74,3M $13,7M $104.8M $ 19.4M Dependents $0 $14.3M $0 $ 20.0M Employees less than 25 years of service $0 $ 5.9 M $0 $ 8,3M Dependents $0 $ 6,1M $0 $ 8.6M Retirees 25 or more years of service $ 22,7M $1.7M $ 14.3M $ 3,1M Dependents $0 $ 5,6M $0 $1.6M Retirees less than 25 years of service $0 $ 1.1M $0 $ 2,OM Dependents $0 $ 3,7M $0 $1.0M Total $97M $ 52.1M $ 119.1M $ 64.0M 22 June 26, 2007 - 16 - C IT Y MANA G E R 'S B R IE FIN G HEALTHCARE ITEM # 56560 (Continued) How do we reduce liability? Limit Access to coverage in retirement Retirees 25 or more years of service Retirees less than 25 years of service Dependents Current Employees New Employees Create Health Savings Account Change Plan Design Cost Sharing Timeline July 10, 2007 July 31,2007 October - November 2007 January 1, 2008 Spring 2008 Spring 2008 May 2008 June 30, 2008 Task Force Recommendations Finalize Plan Design and Rates for 2008 Open Enrollment Plan year Start GASB Valuation Policy Decision on Liability Budget Adoption Report Liability Councilman Diezel advised the recommendations of the Employees Benefits Review Task Force were centered upon the Rretiree. Susan Walston advised the Task Force has expended the majority of time re retiree health care due to the urgency of the GASB 45 requirements. Vice Mayor Jones believes the City Council should review all concepts in order to evaluate the total cost. Council Lady Wilson suggested Mercer and Associates assist with the recommendations. Council Lady McClanan requested the costs of Mercer and Associates services be provided. Mrs. Walston advised Mercer and Associates has responded to numerous questions raised by the Employees Benefits Review Task Force as well as verifying pertinent numbers associated with the recommendations. Vice Mayor Jones requested the funding cost for the next year be provided re the Implicit Liability under GASB 45, if dependent health care were not covered by the City. $12.9-MILLION is being expendedfor subsidies, plus the Implicit Liability must be funded. The total of the two (2) needs to be provided by July Tenth. The same information needs to be provided re the Virginia Beach City Schools. Councilman Uhrin requested the recommendations of the Employees Benefits Review Task Force list the cost impacts to the current Operating Budget and impact to GASB 45. The City Attorney advised under GASB 45, it does not mean you are setting aside, but rather placing in an irrevocable trust fund. Susan Walston clarified in order for City Council to make a policy decision re GASB 45, by Spring 2008, response must be provided re the avenues available to be credited as afunded status. June 26, 2007 - 17 - AGE N DA REV IE W S E S ION 3:55 P.M. ITEM # 56561 BY CONSENSUS, the following shall compose the CONSENT AGENDA J. RESOLUTIONS/ORDINANCES 1. Resolution re a REGIONAL CONSENT ORDER dealing with sanitary sewer overflows 2. Resolution to EXTEND to January 1, 2008, the suspension of increases in health insurance premiums for Retirees 3. Ordinances to ADD, AMEND, REPEAL and/or REORDAIN the City Code to rejlect provisions of the State Code as adopted by the 2007 General Assembly: a. 996-122 - 6-122.3 re administration of breath or blood tests from within two hours to within three hours of boating under the influence b. 992-462 and 2-464 re Sheriff being designated as the State mandated High Constable c. H21-303, 21-307, 21-312 re State Inspection Decals and other parking prohibitions d. 9923-22.1 and 23-22.2 re drinking alcoholic beverages in, and definition of "public places" e. 923-43.1 re disruptive passengers on public transportation constituting Class 4 Misdemeanor and defining "public transportation service" f. 938-2.1 re requiring fingerprinting for new concealed weapon permits only 4. Ordinances re Beaches and Waterways Advisory Commission a. AMEND and REORDAIN 96-162 of the City Code re terms of members b. AMEND by-laws re removal of staggered terms 5. Ordinance to AUTHORIZE execution of a Deed of Release and Exchange re an Agricultural Lands Preservation (ARP) easementfor GEORGE B., JR. and JUANITA F. PENDLETON re a three acre building site at Indian Creek Road near Baum Road DISTRICT 7 - PRINCESS ANNE 6. Ordinances to A UTHORIZE temporary encroachments into portions of City property by DA VID F. and JERRY A. HARRIS to remove an existingjloat, ramp and pier to construct the same and repair the pier at 700 Kennedy Avenue in Lake Rudee DISTRICT 6 - BEACH June 26, 2007 - 18 - AGE N DA REV IE W S E S ION ITEM # 56561 (Continued) 7. Annual PERMIT RENEWAL for area private and non-profit EMS organizations: American Lifeline Medical Transport Children's Hospital of the King's Daughters Eastern Shore Ambulance Life EVAC of Virginia Medical Transport Lifeline Ambulance Service, Inc. Medical Transport Nightingale Regional Air Ambulance Network Medical Systems 8. Ordinance to APPOINT the Directors of Parks and Recreation, Planning and Public Works as Viewers for one-year terms beginning July I, 2007, re closures of City streets and alleys. 9. Ordinances to ACCEPT and APPROPRIATE grantfundsfrom the Virginia Department of Transportation (VDOT) to ESTABLISH new Capital Improvement Programs (CIP), Bicycle and Pedestrian Safety, re installation of pedestrian signs andflashing lights: a. $63,450 for PACIFIC A VENUE between 5th and 43rd Streets b. $36,288 for SHORE DRIVE between Kendall Street and Vista Circle Ordinances to ACCEPT and APPROPRIATE: c. $322,999 from the State Compensation Board and $235,479 from the Sheriff's Special Revenue Fund to his budget re pay increases for uniformed personnel d. $300,000 in earned revenue from admissions and store sales to the Virginia Aquarium Special Revenue Fund e. $29,983 from Eagle Cove Subdivision re Cash-in-Lieu-of-Park Reservation-Payment for park improvement within the Indian River/Elbow Road corridor f. $16,802from the Virginia Tobacco Settlement Foundation re "Too Good For Drugs" (TGFD) program to be administered by Parks and Recreation g. $2,426 from the American Cancer Society to compensate Hampton Roads Transit (HRT) re shuttle service for the Relay for Life fundraiser June 26, 2007 - 19 - AGE N DA REV IE W S E S ION ITEM # 56562 1. Applications at 1763 Princess Anne Road DISTRICT 7 - PRINCESS ANNE a. HAC PROPERTIES, LLC, re Modification of Proffer No 3 to allow low speed motor vehicle sales, and future retail establishments, laboratories for the production and repair of eye glasses, hearing aids and prosthetic devices (approved on June 22, 2004) b. NORMA DIANE PAYNE HEWIT t/a ARGO OF TIDEWATER for a Conditional Use Permit re sale of low speed vehicles at 1763 Princess Anne Road Council Lady Henley expressed concern and requested DEFERRAL. The applicant currently has n existing tenant that proposes to expand its product line to include Low Speed Vehicles (LSV). Council Lady Henley does not believe the parking could accommodate. The original Proffer 3 stated: "When the Property is developed, only the following uses will be permitted: a) business studios, offices and clinics; b) mini-warehouses; c) repair and sales for radio and television and other household appliances and small business machines. The applicant desires to modify that proffer to allow motor vehicle sales; retail establishments; and, laboratories and establishments for the production and repair of eye glasses, hearing aids and prosthetic devices. The applicant is already selling the low speed vehicles, as well as golf carts. Council Lady Henley also is concerned where these vehicles would be allowed to operate. These vehicles can be operated anywhere the speed limit is 35 miles per hour or less. This deferral would allow more information to be provided. ITEM # 56563 3. Application of SOUTH INDEPENDENCE ACQUISITION, L.L.c.,for a Change of Zoning District Classification.from R-5D and R-10 Residential Districts to Conditional A-36 Apartment District, Conditional B-4 Mixed Use District and Conditional A-12 Apartment District with a PD-H2 Overlay at South Independence Boulevard, Princess Anne Road and 1632 Salem Road, "Spence Farm, " re 103 singlejamily dwellings, 347 townhomes and 230 twin townhomes and Senior Housing ("Renaissance Park"). DISTRICT 1- CENTERVILLE and DISTRICT 7 - PRINCESS ANNE This item will be discussed during the FORMAL SESSION ITEM # 56564 BY CONSENSUS, thefollowing shall compose the PLANNING BY CONSENT AGENDA K. PLANNING 2. Application of CA VALIER GOLF & YACHT CLUB for a Conditional Use Permit Re a golf club Agronomy facility at Kamichi Court. DISTRICT 5 - LYNNHA VEN Item 2 (Cavalier) shall be DEFERRED, BY CONSENT, until the City Council Session of July 10,2007. June 26, 2007 - 20- CITY COUNCIL COMMENTS 4:00 P.M. ITEM # 56565 Councilman DeSteph referenced the City Manager's correspondence and Memorandum of Patricia A. Phillips, Director of Finance, dated June 22, 2007, re the Increased Pension Multiplier for Public Safety. Councilman DeSteph is very concerned re this conflicting information. Said letter and memorandum are hereby made a part of the record. "It is too late to delay implementation of the 1lh% general increase for public safety since the system has already been programmed. In addition, implementation prior to July 1, 2008, will be extremely difficult since staff are heavily immersed in the implementation of the Human Resource/Payroll System ... " The City Manager advised the computer is programmed to start issuing checks July First, The City Manager's staff had indicated previously that if a different direction were to be taken re the 1 1/2% increase, direction was necessary by June 14th or 15th. The decision can be made at anytime and the pay tables can be adjusted, but cannot be effective July First with the new pay system. The City Council ADOPTED the FY 2007-2008 BIENNIAL RESOURCE MANAGEMENT PLAN on May 15,2007, and this Ilh% general increase for public safety was included. Councilman DeSteph advised according to a City Policy, benefit changes can be made by July Fifth. The City Manager and City Attorney highlighted the verbatim transcripts concerning the multiplier and 1-lh% safety compensation re the RESOURCE MANAGEMENT PLAN (FY 2007-2008 Operating and Capital Budget) Workshop May 8, 2007, and made the decision based on the discussions and intent. The City Manager specifically asked the Mayor and Vice Mayor during the Agenda meeting, May 30, 2007, and was told the City was proceeding with the increase. The instruction had been to have this concept reviewed by the Employees Benefits Review Task Force and present their recommendation, which has not been received. The City Attorney wished to clarify he did not review the aforementioned transcript until after June Fourteenth. Councilman Wood concurred with the increased multiplier and to attempt to find a way to fund it. He believes there are other ways to fund this and requested the City Staff review methods as personal, birthday, flex days which could be utilized and be more equitable. Eliminating the 1.5% compensation might result in another compression pay issue. Vice Mayor Jones requested information concerning the method by which the State and other municipalities are funding this multiplier. Are they doing the reduction of the 1.5% compensation, or just providing the funding? Vice Mayor Jones requested alternatives. Councilman DeSteph believes they are now forced to find another funding source. Council Lady Henley was under the impression funding the multiplier could be done sometime in the future. She believes the employees, including safety, were expecting the 1.5% compensation increase on July First. Councilman Diezel is in favor of implementing the multiplier. Councilman Wood believes in implementing the multiplier immediately but review a method of funding other than the 1. 5% compensation increase. Council Lady Wilson concurred with Councilman Wood. Vice Mayor Jones advised the majority of City Council is requestingfurther information concerning cost of the multiplier. Vice Mayor Jones does not believe the 1.5% compensation should be taken back. June 26, 2007 - 21 - ITEM # 56566 Vice Mayor Louis R. Jones entertained a motion to permit City Council to conduct its CLOSED SESSION, pursuant to Section 2.1-3711 (A), Code of Virginia, as amended, for the following purpose: PERSONNEL MATTERS: Discussion, consideration of, or interviews of prospective candidates for employment, assignment, appointment. promotion, performance, demotion, salaries, disciplining or resignation of specific public officers, appointees or employees pursuant to Section 2.2-3711 (A)(l) Council Appointments: Boards, Commissions, Committees, Authorities and Agencies PUBLICLY-HELD PROPERTY: Discussion or consideration of the, acquisition, or of the disposition of publicly-held property, where discussion in an open meeting would adversely affect the bargaining position or negotiating strategy of the public body pursuant to Section 2.2-3711 (A)(3). Acquisition/Disposition of Property Lynnhaven City Marina Town Center. LEGAL MATTERS: Consultation with legal counselor briefings by staff members, consultants, or attorneys pertaining to actual or probable litigation, where such consultation or briefing in an open meeting would adversely affect the negotiating or litigating posture of the public body, or consultation with legal counsel employed or retained by a public body regarding specific legal matters requiring the provision of legal advice by counsel pursuant to Section 2.2-3711 (A)(7). Witchduck Lake Enterprises, Inc. v. City of Virginia Beach Upon motion by Councilman Dyer, seconded by Council Lady Wilson, City Council voted to proceed into CLOSED SESSION (4:20 P.M.). June 26, 2007 - 22- ITEM # 56566 (Continued) Voting: 10-0 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James 1. Wood Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf [Attending u.s. Conference of Mayors 7 J'h Annual Meeting] (Break: 4:22 P.M. - 4:30 P.M.] (Closed Session: 4:30 P.M. - 5:30 P.M.) (Dinner: 5:30 P.M. - 5:55 P.M.) June 26, 2007 - 23 - FORMAL SESSION VIRGINIA BEACH CITY COUNCIL June 26, 2007 6:00 P.M. Vice Mayor Louis R. Jones called to order the FORMAL SESSION of the VIRGINIA BEACH CITY COUNCIL in the Council Chamber, City Hall Building, on Tuesday, June 12,2007, at 6:00 P.M Council Members Present: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Absent: Mayor Meyera E. Oberndorf [Attending u.s. Conference of Mayors 75th Annual Meeting] INVOCATION: Louis R. Jones Vice Mayor PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA Vice Mayor Jones DISCLOSED, for many years, he served on the Board of Directors of Resource Bank. Three (3) years ago, Fulton Financial Corporation ("Fulton Financial") purchased Resource Bank. On March 31, 2007, Vice Mayor Jones retired from the Board of Directors. Although, he is no longer a Board Member, he owns stock in Fulton Financial, and that stock ownership causes him to have a "personal interest" in Fulton Financial. However, due to the size of Fulton Financial and the volume of transactions it handles in any given year, Fulton Financial, or any of the banks that are owned by Fulton Financial, may have an interest in numerous matters in which Vice Mayor Jones has no personal knowledge. In order to ensure his compliance with both the letter and the spirit of the State and Local Government Conflict of Interests Act, it is his practice to thoroughly review the agenda for each meeting of City Council for the purpose of identifying any matters in which he might have an actual or potential conflict. If, during his review, he identifies any matters, Vice Mayor Jones will prepare and file the appropriate disclosure letter to be recorded in the official records of City Council. Vice Mayor Jones regularly makes this disclosure. Vice Mayor Jones' letter of April 10, 2007, is hereby made a part of the record. Council Lady Rosemary Wilson DISCLOSED her husband is a principal in the accounting firm 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 t(l 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 this disclosure. Council Lady Wilson's letter of January 27, 2004, is hereby made a part of the record. June 26, 2007 - 24- FORMAL SESSION VIRGINIA BEACH CITY COUNCIL (Continued) 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 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 and file 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. June 26, 2007 - 25 - Item V-E. CERTIFICATION OF CLOSED SESSION ITEM # 56567 Upon motion by Councilman Dyer, seconded by Councilman Diezel, 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: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf June 26, 2007 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 #56566, Page 21, and in accordance with the provisions of The Virginia Freedom of Information Act, and, WHEREAS: Section 2.2-3712 of the Code of Virginia requires a certification by the governing body that such Closed Session was conducted in conformity with Virginia law. NOJf, THEREFORE, BE IT RESOL VED: 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. @Ld~~' / th Hodges raser, MMC - City Clerk June 26, 2007 - 26- Item V-F.1. MINUTES ITEM # 56567 Upon motion by Council Lady Wilson, seconded by Councilman Dyer, City Council APPROVED the Minutes of the INFORMAL and FORMAL SESSIONS of June 12,2007. Voting: 10-0 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf June 26. 2007 - 27 - Item V-G 1. ADOPT AGENDA FOR FORMAL SESSION ITEM 56568 BY CONSENSUS, City Council ADOPTED: AGENDA FOR THE FORMAL SESSION June 26, 2007 - 28 - Item V-H. VICE MAYOR'S PRESENTATION ITEM 56569 Vice Mayor Jones PRESENTED: Government Finance Officers Association (GFOA) Award to Patricia Phillips Director - Department of Finance Vice Mayor Jones acknowledged the dedicated and excellent service of Patricia A. Phillips, Director - Department of Finance. This is a Government Finance Officers Association (GFOA) Award and is a certificate of achievement for excellence in financial reporting presented to the City of Virginia Beach for its Comprehensive Annual Financial Report (CAFR). Government Finance Officers Association of the United States and Canada (GFOA) presents this award to government units and public employee retirement systems, whose Comprehensive Annual Financial Reports achieve the highest standard in government accounting and financial reporting. Mrs. Phillips ACCEPTED the award and advised this is the twenty-sixth consecutive year the Department has been so recognized for its accounting practices. Mrs. Phillips acknowledged this award also reflects the good judgment and professionalism of the City Council and City Departments. The Certificate of Achievement is the highest form of recognition in the area of Governmental accounting and financial reporting. Financial reporting is accomplished in the field of ''full disclosure". The recent upgrading of the City's credit by Standard and Poors to AAA reflects the factors of financial policy and consistency in its reporting. Mrs. Phillips expressed appreciation and recognized the CAFR team as well as members of Management Services. June 26, 2007 - 29- Item v.J. RESOLUTIONS/ORDINANCES ITEM #56570 Upon motion by Councilman Dyer, seconded by Council Lady Wilson, City Council APPROVED IN ONE MOTION Resolutions/Ordinances 1, 2, 3a-j, 4a/b, 5, 6, 7, 8, 9a-g and Planning K.1 (DEFER) of the CONSENT AGENDA Item K.1 (Cavalier) was DEFERRED, BY CONSENT, until the City Council Session of July 10, 2007 Voting: 10-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf June 26, 2007 - 30 - Item v.J.1. RESOLUTIONS/ORDINANCES ITEM #56571 Upon motion by Councilman Dyer, seconded by Council Lady Wilson, City Council ADOPTED: Resolution re a REGIONAL CONSENT ORDER dealing with sanitary sewer overflows Voting: 10-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf June 26, 2007 1 A RESOLUTION APPROVING A REGIONAL 2 CONSENT ORDER PACKAGE PERTAINING 3 TO SANITARY SEWER OVERFLOWS 4 5 WHEREAS, the Hampton Roads Sanitation District ("HRSD") provides sewage 6 treatment service for the cities of Chesapeake, Hampton, Newport News, Poquoson, 7 Portsmouth, Suffolk, Virginia Beach, and Williamsburg; the counties of Gloucester, Isle 8 of Wight, and York; the James City County Service Authority; and the town of Smithfield. 9 (collectively, the "Localities"); and 10 11 WHEREAS, the City of Virginia Beach and other localities individually own and 12 operate sanitary sewer collection systems in their own jurisdictions, which systems 13 collect sewage that is delivered to the HRSD system for treatment; and 14 15 WHEREAS, due to pipe breaks, electrical outages, wet weather events, 16 insufficient capacity in the collection, interceptor and treatment systems, and other 17 factors, untreated sewage is, on occasion, discharged from various locations in the 18 HRSD sewer system and from the Localities' sanitary sewer systems; and 19 20 WHEREAS, at the behest of the Virginia Department of Environmental Quality 21 ("DEQ") and the U.S. Environmental Protection Agency ("EPA"), HRSD and the 22 Localities, working under the aegis of the Hampton Roads Planning District Commission 23 ("HRPDC"), have expeditiously developed a comprehensive program to remedy these 24 problems; and 25 26 WHEREAS, the aforesaid program consists of a regional element, which requires 27 the Localities and HRSD to use uniform standards to design the infrastructure 28 improvements needed to manage peak wet weather flows throughout the Hampton 29 Roads Sewer System in a cost-effective manner, and an individual element, which 30 requires HRSD and the Localities to address their individual system conditions that 31 cause or contribute to discharges of untreated sewage; and 32 33 WHEREAS, these regional and individual commitments are set forth in the 34 following three documents that have been developed in consultation with the staff of the 35 DEQ (collectively, the "Regional Consent Order Package"): 36 37 (1) State Water Control Board Enforcement Action: Special Order by 38 Consent Issued by the DEQ to the Hampton Roads Sanitation 39 District; the Cities of Chesapeake, Hampton, Newport News, 40 Poquoson, Portsmouth, Suffolk, Virginia Beach and Williamsburg; 41 the Counties of Gloucester, Isle of Wight and York; the James City 42 County Service Authority; and the Town of Smithfield ("Regional 43 Consent Order"); 44 45 (2) Attachment 1 to the Special Order by Consent: Regional Technical 46 Standards ("Regional Technical Standards"); and 47 48 (3) Memorandum of Agreement for Regional Sanitary Sewer System 49 Operation, Maintenance and Enhancement ("Memorandum of 50 Agreement") 51 52 WHEREAS, the success of these initiatives depends upon the cooperative efforts 53 of HRSD and the Localities, and the approval of the Virginia State Water Control Board 54 ("SWCB") and the DEQ; and 55 56 WHEREAS, the ongoing efforts of the Localities and HRSD to maintain, repair 57 and improve the sanitary sewer system at substantial cost, for the benefit of the region's 58 quality of life, is endorsed and commended; 59 60 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY 61 OF VIRGINIA BEACH: 62 63 1. That, subject to the provisions of Paragraph (3) below, the City Council 64 hereby approves the Regional Consent Order Package, including the Special Order by 65 Consent and Regional Technical Standards, and the Memorandum of Agreement for 66 Regional Sanitary Sewer System Operation, Maintenance and Enhancement, the 67 material terms of which are attached hereto and copies of which are on file in the City 68 Clerk's Office; 69 70 2. That, subject to the provisions of Paragraph (3) below, the City Council 71 hereby authorizes and directs the City Manager to execute the Regional Consent Order 72 and Memorandum of Agreement on behalf of the City of Virginia Beach and submit the 73 Regional Consent Order Package to DEQ for public notice and approval by the SWCB; 74 75 3. That the City Council's approval of the Regional Consent Order is 76 expressly conditioned upon there being no material additions to, or alterations or 77 deletions of, any of its provisions that are, in the opinion of the City Attorney and City 2 78 Manager, adverse to the City of Virginia Beach, and the City hereby reserves the right 79 to revoke its approval in the event there are any such material changes in the final 80 Regional Consent Order issued by the State Water Control Board; and 81 82 4. That the City Manager and the City Attorney are hereby authorized and 83 directed to take such actions as may be necessary or appropriate to implement the 84 intent of this Resolution. 85 86 BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF 87 VIRGINIA BEACH: 88 89 That it commends the efforts of its staff and those of the other Localities, the 90 Hampton Roads Sanitation District, Hampton Roads Planning District Commission and 91 Department of Environmental Quality in connection with the development of the 92 Regional Consent Order Package. Adopted by the City Council of the City of Virginia Beach, Virginia, on this 2.6.t.b day of .Tllnp , 2007. APPROVED AS TO CONTENT: ~::~P:U~~ APPROVED AS TO LEGAL SUFFICIENCY: W ()jJtl1/~ JUoJ \ City Attorney's Office CA10419 R-6 June 15, 2007 3 Policy Report REGIONAL SPECIAL ORDER BY CONSENT INTRODUCTION This report is in support of a request for the City Council to approve the City's participation in the Regional Special Order by Consent (Consent Order). This is a regulatory order between the Virginia Department of Environmental Quality (DEQ), Virginia Beach, the Hampton Roads Sanitation District (HRSD) and other communities in Hampton Roads. The other participating communities are the cities of Chesapeake, Hampton, Newport News, Poquoson, Portsmouth, Suffolk, Williamsburg; the counties of Gloucester, Isle of Wight, and York; the James City Service Authority; and the town of Smithfield. Norfolk is not included because it is already under a consent order with the DEQ and the HRSD. When executed, the Consent Order has the same force and effect as state environmental law and regulation. BACKGROUND The federal Clean Water Act (CW A) prohibits the discharge of untreated wastewater into the waters of the United States - it always has. The United States Environmental Protection Agency (EP A) and the DEQ (the state primacy agency) administer the CW A in Virginia. For most of the thirty-five years that the CW A has been in existence, the regulatory focus for the EP A and DEQ has been the wastewater treatment plants and the water quality of the related discharges to state waters. However, alarmed by a nation-wide increase of sanitary sewer overflows (SSO's) caused by aging, leaking, poorly maintained, and undersized collection systems, the EP A sent a report to Congress in August 2004 outlining national enforcement actions and priorities for SSO control and reduction. EPA's Office of Enforcement and Compliance (OECA) simultaneously adopted an enforcement strategy that all major municipal collection systems with a total treatment capacity of greater than 100 million gallons per day (mgd) and the associated satellite collection systems would be under enforceable administrative or judicial orders to control and reduce sanitary sewer overflows by September 2007. This strategy was not related to the performance of the respective sanitary sewer systems. It was based solely upon the size of the systems. The HRSD and its municipal satellites comprise one of five sanitary sewer systems in EP A Region III with a capacity of greater than 100 mgd. The other four (Allegany County/Pittsburgh, Baltimore, Baltimore County; and the Washington Suburban Sanitary Commission) are already under state and federal orders for SSO reduction. Hampton Roads was the last system to be addressed because the EP A felt this area had fewer problems relative to the other four regions. The EP A and DEQ presented their expectations and requirements for a Regional Special Order by Consent to the Hampton Roads directors of utilities and the HRSD in a September 2005 meeting facilitated by the staff of the Hampton Roads Planning District Commission. F or the last 18 months, the directors of utilities and staff specialists, the HRSD and the HRPDC have been working and negotiating with the DEQ and EP A to develop the Special Order by Consent and supporting documents. These documents, dated May 2007 and included herewith, have been collectively assembled and entitled "Hampton Roads Regional Consent Order Package." CONSIDERATIONS The consent order will mandate evaluations, increased operations and maintenance, and increased capital spending. Complying with this order could cost the HRSD upwards of $1 billion over the next two decades, and an equal sum required of the satellite localities. Virginia Beach alone could be required to make additional expenditures of $200 million or more over the next 15 to 20 years. Two years ago, City Council authorized five years of water and sewer rate increases to fund current operations, and increase the Public Utilities Water and Sewer CIP from $15 million per year to $25 million per year to address aging infrastructure. Those rate increase were 6.5% for FY2006 and an average of 3.8% per year for FY2007 through FY201 O. Of the $25 million per year Public Utilities Water and Sewer CIP, $15 million per year is devoted to aging sanitary sewer infrastructure. There is an overlap between aging sewer infrastructure and the mandates in the Consent Order. Public Utilities has implemented, or is in the process of implementing, a number of the Consent Order mandates, and most of what is required would have been implemented, eventually. However, the Consent Order will require programs and projects to be implemented at a faster pace than Public Utilities would have recommended in the absence of the order. For Fiscal Years 2008 through 2012, the Consent Order will require approximately $5 million dollars per year more than what was originally programmed in the CIP for sanitary sewer rehabilitation and repair. Public Utilities proposes to address the FY2008 through 2010 shortfalls by reprioritizing projects in the CIP and transfer of funds from retained earnings. Public Utilities is not requesting a rate increase above what has been approved for FY2008, and it has established that same goal for FY2009 and 2010. However, rate increases will definitely be required for FY2011 and beyond. There will be other impacts that will result from the Consent Order. Fats, oils, and grease (FOG) cause about one-third of the City's sanitary sewer overflows and contribute to another one-third. As part of the Regional Consent Order, all Hampton Roads localities will have to implement aggressive FOG control programs. The principle sources of FOG are single-family homes, multi-family apartments and condominiums, schools, jails, grocery stores and restaurants. The state plumbing code requires that the non-residential FOG generators install and maintain FOG traps. Proper maintenance requires regular removal of the FOG, because when the traps fill up, they bypass the FOG directly to the sanitary sewer. However, there is little or no enforcement with respect to pumping and cleaning of these devices - it is essentially an honor system. A recent pilot test by Public Utilities indicates that there is widespread non-compliance with respect to the cleaning and pumping of FOG traps. Permits and Inspections certifies that a FOG trap is installed when an applicable facility is permitted, but it does not provide follow-up inspection or maintenance enforcement. It is possible that both Permits and Inspections, and Housing and Neighborhood Preservation have the authority to conduct regular inspections and maintenance enforcement. However, neither entity has ever been charged with this responsibility, nor would they have the necessary manpower and resources to do it if they were. Public Utilities will be requesting changes to the City Code to allow it to enforce FOG control with respect to non-residential FOG generators. Certain private properties including shopping centers, apartment complexes, trailer parks, condominiums and private individual laterals can make significant infiltration and inflow (1&1) contributions to the collection system. In fact, for some service areas, private-side 1&1 is the predominate factor. At the present time, the City Code does not provide the authority to Public Utilities or any other department to require private entities to make repairs for the purpose of reducing infiltration and inflow. Public Utilities will be requesting changes to the City Code to allow it to require private property owners to reduce the amount of infiltration and inflow from their systems. The Consent Order does contain certain protections for municipalities that execute the order and carry out the obligations, therein. The Order conforms to federal and state law provisions, referred to as "safe harbor" provisions, which provide that compliance with the Order protects the municipalities from fines from DEQ or EPA for past SSO's and from third-party lawsuits seeking fines or injunctive relief for past SSO's. The HRSD and localities are scheduled to approve and execute the Consent Order in May and June 2007. The DEQ plans to submit the Consent Order to the State Register by July 2 for publication on July 23,2007. Following a 30-day comment period, the State Water Control Board will vote to authorize the DEQ to execute the order during its September 2007 quarterly meeting. PUBLIC INFORMATION The Regional Consent Order was the subject of a City Council Briefing on June 5, 2007, and was also discussed as part of the budget briefing for the Public Utilities Capital Improvement Program on May 1, 2007. The requested action has been advertised as part of the regular City Council agenda for June 12, 2007. Any requests for water or sewer rate increases, beyond those already approved by City Council, or City Code changes for FOG control or private-side infiltration and inflow reduction would be made at future City Council meetings. Those actions would be advertised and noticed as appropriate. ALTERNATIVE COURSES OF ACTION Technically, there are two alternatives - authorize execution of the Consent Order, or reject it. However, as a practical matter, the City has little choice but to execute the Consent Order. EP A and DEQ have said that any municipality that does not join the Consent Order will be prosecuted for violations of the CW A. The agencies can do this because the Clean Water Act (CW A) contains a paradox: All SSO's are prohibited - yet all large wastewater collection systems experience them, from time-to-time. This is particularly true of systems with significant aging infrastructure, and located in low-lying, flood prone areas with high water tables (like Hampton Roads). With respect to any municipality that does not execute the Consent Order, standard operating procedure would be for DEQ or EPA or both to seek fines for past and future SSO's, and injunctive orders that would impose upon the municipality the same obligations (or more) that are contained in the Consent Order. RECOMMENDATIONS: The course of action prescribed by the Consent Order will reduce SSO's, protect the environment, protect the City from fines and third-party lawsuits, and contribute to the health, safety and welfare of the residents of Virginia Beach. While the Consent Order will require the Department of Public Utilities to implement programs and projects at a faster rate than it would have otherwise, there is little in the order that Public Utilities would not have undertaken, eventually. It is recommended that Council authorize the City Manager to sign and execute the proposed Regional Special Order by Consent in June 2007 for publication in the State Register on July 2,2007. ATTACHMENT: Hampton Roads Regional Consent Order Package REVIEW AND APPROVAL: _()J d~)I/ /lllaai. Reviewed by City Attorney jA OM a4)/YJ tJ(cv.J1_]]C Approved by Public Utilities ~( ~ -~o-o 7- Date b'- 2-6'-07 Date 4;;pjo] Regional Consent Order Package Summary of Material Terms that Impact Virginia Beach This is a summary of the document entitled "Hampton Roads Regional Consent Order Package." The document is divided into three sections: 1) The Regional Special Order by Consent; 2) Attachment 1 to the Special Order by Consent - the Regional Technical Standards; and 3) The Regional Memorandum of Agreement. 1) Regional Consent Order Section C: Findings of Fact and Conclusions of Law - This is standard information from DEQ that is contained in every DEQ order. It describes the wastewater system in Hampton Roads, establishes that sanitary sewer overflows (SSO's) occur in violation of state law, and states that there will be two-phases of orders to address the SSO's. This order is Phase One. Phase Two will come after 2012. This section also establishes the regional approach to the order. Section D: Agreement and Order - This section includes the enforcement part of the order. It requires Virginia Beach to comply with Appendix H of the order, as described below. HRSD and the other localities are required to comply with their own respective appendices. This section also establishes a requirement that HRSD and the localities develop a Regional Wet Weather Management Plan (R WWMP). Section E: Administrative Provisions - This section includes standard language for modifying the consent order, venue, enforcement, force majure and termination. It also includes a section that resolves all past SSO's and limits the potential for certain third party lawsuits against the localities. Appendix H - City of Virginia Beach: This appendix, which is similar to the appendices for the other localities, requires the City to prepare a Sanitary Sewer Evaluation Survey (SSES) plan due 15 month after the signing ofthe order. It also mandates certain interim repairs to the sanitary sewer system; requires a Management Operations & Maintenance (MOM) plan; and requires annual reports to DEQ. 2) Regional Technical Standards (RTS) Introduction and Purpose: Outlines the purpose of the document. Definition of Terms: Provides a definition ofterms used in the Regional Technical Standards. Data Collection and Flow Monitoring: Requires analysis and characterization ofthe number and causes of SSOs. Requires at least 20% of all sanitary sewer service areas to be monitored for flow. Identifies criteria for implementation. Condition Assessment of Sewers and Pump Stations: Identifies the method and parts of the sanitary sewer system that need condition assessment; identifies a find & fix program for prioritization of system defects. SSES Planning: Provides guidance for prioritization of sewer service areas that need SSES. Hydraulic Performance Assessment: Provides guidance for the development of a sanitary sewer system-wide hydraulic computer model. Rehabilitation Planning: Provides guidance on prioritization of repairs needed from the SSES plans performed above. Regional Wet Weather Management Plan: Outlines the purpose and method of performing the RWWMP. Exhibit A - Regional Design Guidelines: These are an agreed upon set of design standards for the entire region. Exhibit B - Regional Sanitary Sewer System Operating Guidelines: These are an agreed upon set of operating guidelines for the Hampton Roads Sanitation District. 3) Memorandum of Agreement This agreement will be executed by the localities included in the Regional Special Order by Consent and HRSD. Section A - Definitions: Standard definitions, consistent with those used in the Consent Order. Section B - Statement of Principals: This section declares that the localities and HRSD have a shared responsibility to operate their respective systems effectively and efficiently; to share data and information; to agree to implement the Regional Technical Standards and to make decisions collectively on issues that will affect other localities and/or HRSD. It also declares that we will work to reduce SSOs at the lowest overall cost to ratepayers, and that we will seek to resolve disputes administratively before resorting to judicial action. Section C - Roles and Responsibilities: This establishes HRPDC as a regional facilitator, and the HRPDC Directors of Utilities Committee (DUC) as the regional entity to coordinate and facilitate all aspects of the Consent Order. HRSD agrees to participate and be a part of the DUC. The localities agree to participate in the DUC and comply with the Consent Order and the Regional Technical Standards. Section D - Compliance with Regional Technical Standards and Development and Implementation of Regional Wet Weather Management Plan: Each locality and HRSD agree to work together to prepare and submit a RWWMP to DEQ on or before December 31,2013, and to comply with that plan. Section E - Proposed Modifications to the Regional Order and the Regional Technical Standards: This section outlines how the localities will request and agree to modifications to the Regional Special Order by Consent and the Regional Technical Standards. Modifications to the Regional Technical Standards can be made only with the consent of all Utilities. Section F - Remedies and Reservations of Rights: This section describes an administrative dispute mechanism, and provides that an aggrieved party must show actual harm caused by another party to institute formal legal action. Section G - Miscellaneous: This section contains standard language for Amendments, Severability, Authority, Reservation, Notices and Written Communications, Term, Governing Law, Force Majeure, Counterparts, Not for Benefit of Third Parties, and Binding Effect. ~Bir'" k~~~rll, ~~"~1' -..~'t>}1 (~. . \~., ~'! -- :~} \.1. t/j ~.:~;;.;,"~ \..~. Ol'~"~'\"~ .'-'-"'~ CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: A Resolution Approving a Regional Consent Order Package Pertaining to Sanitary Sewer Overflows MEETING DATE: June 26,2007 . Background: In 2005, the Environmental Protection Agency (EPA) and the Virginia Department of Environmental Quality (DEQ) informed the Hampton Roads Sanitation District (HRSD) and its constituent localities that they would be placed under a Regional Consent Order, as part of a nationwide effort under the Clean Water Act (CWA) to reduce and control sanitary sewer overflows (SSO's). HRSD and the localities have been negotiating with DEQ, in consultation with EPA, and have reached agreement on the terms and conditions of the Consent Order. The Consent Order, including the technical standards, will then be placed before the State Water Control Board for approval, probably at its September meeting. HRSD, Hampton Roads Planning District Commission (HRPDC) and the localities have also agreed upon the terms of a Memorandum of Agreement for the purpose, among others, of defining their respective roles, responsibilities, and obligations. Public Utilities is requesting City Council approval for the City Manager to execute the Consent Order, including the technical standards in it, and the MOA. . Considerations: All SSO's are prohibited under the CWA, but cannot be totally avoided. All large wastewater collection systems experience them, especially during heavy rainfall events, notwithstanding measures taken to avoid them. This is particularly true of systems with aging sewer infrastructure, and located in low-lying, flood-prone areas with high water tables. The object of the Consent Order is to ensure that local sanitary sewer systems take the corrective actions necessary to minimize SSO's to the maximum extent practicable. By entering into and thereafter complying with the Consent Order, the City (as well as the other localities) will greatly reduce its exposure to penalties for past and future SSO's, avoid judicial action by EPA and DEQ, or both, and protect the City from third-party lawsuits. The Consent Order will require higher sanitary sewer service charges in the future. However, Public Utilities is not seeking increased service charges beyond those already approved by City Council for FY 2008 through 2010. Rate increases will be necessary for FY 2011 and beyond. The Consent Order will require changes to the City Code to insure the maintenance of grease traps by restaurants, grocery stores, and other non-residential generators of fats, oils and grease (FOG). Code changes will also be necessary to mandate repairs to reduce private-side infiltration and inflow. Public Utilities will submit those changes for consideration later this year. The attached policy report and Summary of Material terms provide more detail and information concerning the Consent Order. . Public Information: This agenda item has been the subject of two previous briefings to City Council and was advertised as part of the normal agenda process. Future requests for rate increases or code changes would be advertised at the time they are brought to the City Council. . Alternatives: There are two alternatives - authorize execution of the Consent Order, or reject it. Any municipality that does not join the Consent Order will be subject to legal action for violations of the CWA. The Department of Justice, EPA and/or DEQ may seek fines for past and future SSO's, and injunctive orders mandating the same obligations (or more) that are in the Consent Order. The course of action prescribed by the Consent Order will reduce SSO's, protect the City's residents, protect the environment, and protect the City from fines and third-party lawsuits. . Recommendations: Authorize execution of the Regional Special Order by Consent. . Attachments: Resolution, Policy Report and Summary of Material Terms Recommended Action: Approval of Regional Consent Order Package Submitting Department/Agency: Public Utilities .J ~ ~4 ll~ City Manager~ /L , as~ - 31 - Item V.J.2. RESOLUTIONS/ORDINANCES ITEM #56572 Upon motion by Councilman Dyer, seconded by Council Lady Wilson, City Council ADOPTED: Resolution to EXTEND to January 1, 2008, the suspension of increases in health insurance premiums for Retirees Voting: 10-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf June 26, 2007 Requested by Councilmember Diezel 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 A RESOLUTION TO EXTEND THE SUSPENSION OF INCREASES IN HEALTH INSURANCE PREMIUMS FOR RETIREES WHEREAS, City Council was made aware of a proposal to increase the premiums paid by retired City employees for health insurance coverage, effective January 1, 2007; and WHEREAS, on October 24, 2006, City Council created the Employee Benefits Task Force (the "Task Force") to make recommendations to City Council regarding retiree benefits; and WHEREAS, the Task Force has put forth recommendations regarding retiree benefits, including health insurance, that would be effective January 1, 2008; and WHEREAS, the City's health insurance programs are based on calendar years, with the current year ending on December 31, 2007. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: 1. That the planned increase in retiree health insurance premiums shall be suspended until January 1, 2008. Until that time, health insurance premiums paid by City retirees shall remain at the 2006 rates. 2. That $217,000 is hereby transferred from the FY 2007-08 general fund reserve for contingencies to the health insurance fund. Adopted by the Council of the City of Virginia Beach, Virginia on the _2...6..t.b day ,2007. of Juno Approved as to Legal Sufficiency: ;:e~ ~ City Attorney's Office CA 1 0433 June 12, 2007 R5 - 32 - Item V.J.3.a/f. RESOLUTIONS/ORDINANCES ITEM #56573 Upon motion by Councilman Dyer, seconded by Council Lady Wilson, City Council ADOPTED: Ordinances to ADD, AMEND, REPEAL and/or REORDAIN the City Code to reflect provisions of the State Code as adopted by the 2007 General Assembly: ~~ 6-122 - 6-122.3 re administration of breath or blood tests from within two hours to within three hours of boating under the influence ~ ~2-462 and 2-464 re Sheriff being designated as the State mandated High Constable H21-303, 21-307, 21-312 re State Inspection Decals and other parking prohibitions ~~23-22.1 and 23-22.2 re drinking alcoholic beverages in, and definition oj, "public places" ~23-43.1 re disruptive passengers on public transportation constituting Class 4 Misdemeanor and defining "public transportation service" ~38-2.1 re requiring fingerprinting for new concealed weapon permits only Voting: 10-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf June 26, 2007 1 AN ORDINANCE TO AMEND SECTIONS 6- 2 122,6-122.01,6-122.2 AND 6-122.3 OF THE 3 CITY CODE PERTAINING TO BOATING 4 UNDER THE INFLUENCE 5 6 SECTIONS AMENDED: SS 6-122, 6-122.01, 7 6-122.2 AND 6-122.3 8 9 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 10 BEACH, VIRGINIA: 11 12 That Sections 6-122,6-122.01,6-122.2 and 6-122.3 of the Code of the City of 13 Virginia Beach, Virginia, are hereby amended and reordained to read as follows: 14 15 Sec. 6-122. Operating motor boat, vessel, water skis, etc., while under influence 16 of intoxicating beverages or drugs : penalty: removal of vessel. 17 18 (a) No person shall operate any watercraft or motorboat which is underway (i) 19 while such person has a blood alcohol concentration of 0.08 percent or more by weight, 20 by volume or 0.08 grams or more per t'.vo hundred and ten (210) liters of breath as 21 indicated by 3 chemical test administered in accordance 'A'ith section 6 122.2, at or 22 qreater than the blood alcohol concentration at which it is unlawful to drive or operate a 23 motor vehicle as provided in Code of Virqinia Section 18.2-266 as indicated by a 24 chemical test administered in accordance with Section 6-122.2, (ii) while such person is 25 under the influence of alcohol, (iii) while such person is under the influence of any 26 narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or 27 any combination of such intoxicants or drugs to a deqree which impairs his ability to 28 operate the watercraft or motorboat safely, Gf-(iv) while such person is under the 29 combined influence of alcohol and any drug or drugs, to a degree which impairs his 30 ability to operate the watercraft or motorboat safely, or (v) while such person has a 31 blood concentration of any of the followinq substances at a level that is equal to or 32 qreater than: (a) 0.02 milliqrams of cocaine per liter of blood, (b) 0.1 milliqrams of 33 methamphetamine per liter of blood, (c) 0.01 milliqrams of phencyclidine per liter of 34 blood, or (d) 0.1 milliqrams of 3,4-methylenedioxymethamphetamine per liter of blood. 35 36 (b) For purposes of this article, the word "operate" shall include being in 37 actual physical control of a watercraft or motorboat and "underway" shall mean that a 38 vessel is not at anchor, or made fast to the shore, or aground. 39 40 (c) Any person who violates any provision of this sSection shall be guilty of a 41 Class 1 misdemeanor and subiect to the provisions of Code of Virqinia Section 29.1- 42 738.5. 43 44 (d) In any case in which a law enforcement officer arrests the operator of a 45 vessel, and there is no leqal cause for the retention of the vessel by the officer, the 46 officer shall allow the person arrested to desiqnate another person who is present at the 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 scene of the arrest to operate the vessel from the scene to a place desiqnated by the person arrested. If such a desiqnation is not made. the officer may cause the vessel to be taken to the nearest appropriate place for safekeepinq. Sec. 6-122.01. Persons under age twenty-one operating watercraft after consuming alcohol; penalty. (a) It shall be unlawful for any person under the age of twenty-one (21) to operate any watercraft or motorboat upon the waters of the GCommonwealth after consuming alcohol. Any such person with a blood alcohol concentration of 0.02 percent or more by weight by volume or 0.02 grams or more per two hundred and ten (210) liters of breath but less than 0.08 by weight by volume or less than 0.08 grams per two hundred and ten (210) liters of breath as indicated by a chemical test administered in accordance with sSection 6-122.2 shall be in violation of this sSection. (b) A violation of subsection (a) shall be punishable by denial by the court of such person's privilege to operate a watercraft or motorboat for a period of six (6) months from the date of conviction and by a fine of not more than five hundred dollars ($500.00). Any person convicted of a violation of this sSection shall be eligible to attend an Alcohol Safety Action Program under the provisions of sSection 29.1-738.5 of the Code of Virginia. as amended. Sec. 6-122.2. Consent to blood or breath test. (a) Any person who operates a watercraft or motorboat which is underway upon waters of the GCommonwealth shall be deemed thereby, as a condition of such operation, to have consented to have samples of his or her blood, breath or both blood and breath taken for a chemical test to determine the alcohol, drug or both alcohol and drug content of his or her blood, if such person is arrested for operating a watercraft or motorboat which is underway in violation of subsection (a) of sSections 6-122 or 6- 122.01, within two (2) three (3) hours of the alleged offense. Any person so arrested for a violation of clause (i) or (ii), or both, of sSection 6-122(a), or for a violation of sSection 6-122.01 (a). shall submit to a breath test. If the breath test is not available, or the person is physically unable to submit to a breath test, a blood test shall be given. The accused shall, prior to the administration of the test, be advised by the person administering the test that he/she has a right to observe the process of analysis and to see the blood-alcohol reading on the equipment used to perform the breath test. If such equipment automatically produces a written printout of the breath test result, this written printout, or a copy thereof, shall be given to the accused in each case. (b) Any person, after having been arrested for a violation of clause (iii) 9f--jiv) or (v) of sSection 6-122(a) or for a violation of sSection 6-122.01, may be required to submit to a blood test to determine the drug or both drug and alcohol content of his or her blood. When a person, after having been arrested for a violation of clause (i) or (ii), or both, of sSection 6-122(a) or for a violation sSection 6-122.01, submits to a breath test, in accordance with subsection (a) of this sSection, or refuses to take or is 93 incapable of taking such a breath test, he/she may be required to submit to tests to 94 determine the drug or both drug and alcohol content of his or her blood if the law- 95 enforcement officer has reasonable cause to believe the person was operating a 96 watercraft or motorboat under the influence of any drug or combination of drugs, or the 97 combined influence of alcohol and drugs. 98 99 (c) If a person, after being arrested for a violation of subsection (a) of 100 sSections 6-122 or 6-122.01 and after having been advised by the arresting officer that 101 a person who operates a watercraft or motorboat which is underway upon the waters of 102 the eCommonwealth shall be deemed thereby, as a condition of such operation, to have 103 consented to have a sample of his or her blood and breath taken for a chemical test to 104 determine the alcohol or drug content of his or her blood, and that the unreasonable 105 refusal to do so constitutes grounds for a court to order him or her not to operate a 106 watercraft or motorboat which is underway upon the waters of the eCommonwealth, 107 then refuses to permit the taking of a sample of his or her blood or breath or both blood 108 and breath samples for such tests, the arresting officer shall take the person arrested 109 before a committing magistrate. If the person is unable to be taken before a magistrate 110 because the person is taken to a medical facility for treatment or evaluation of his 111 medical condition, the arresting officer at a medical facility, in the presence of a witness 112 other than a law-enforcement officer, shall again advise the person, at the medical 113 facility, of the law requiring blood or breath samples to be taken and the penalty for 114 refusal. If he/she again so refuses after having been further advised by such magistrate 115 or by the arresting officer at the medical facilitv of the law requiring a blood or breath 116 sample to be taken and the penalty for refusal, and so declares again his or her refusal 117 in writing upon a form provided by the Supreme Court of Virginia, or refuses or fails to 118 so declare in writing and such fact is certified as prescribed in Code of Virginia, sSection 119 18.2-268.3, then no blood or breath sample shall be taken even though he/she may 120 thereafter request same. 121 122 (d) When any person is arrested for operating a watercraft or motorboat which 123 is underway in violation of subsection (a) of sSection 6-122, the procedures and 124 requirements of Code of Virginia, sSections 18.2-268.1 through 18.2-268.11 shall apply, 125 mutatis mutandis, to this sSection. 126 127 (e) If the court or jury finds the defendant guilty of unreasonably refusing to 128 permit a blood or breath sample to be taken, the court shall order such person not to 129 operate a watercraft or motorboat which is underway for a period of twelve (12) months 130 for a first offense and for twenty-four (24) months for a second or subsequent offense of 131 refusal within five (5) years of the first or other such refusal. However, if the defendant 132 pleads guilty to a violation of subsection (a) of sSections 6-122 or 6-122.01, the court 133 may dismiss the refusal warrant. 134 135 Sec. 6-122.3. Presumptions from alcoholic content. 136 137 In any prosecution for operation of a watercraft or motorboat which is underway 138 in violation of clause (ii) or (iv) of subsection (a) of sSection 6-122, the amount of 139 alcohol in the blood of the accused at the time of the alleged offense as indicated by a 140 chemical analysis of a sample of the accused's blood or breath to determine the 141 alcoholic content of his blood in accordance with the provisions of sSection 6-122.2 142 shall give rise to the following rebuttable presumptions.;.-at Code of Virqinia Section 18.2- 143 269(A)(1) throuqh (4). 144 145 (1) If there 'Nas at that time 0.05 percent or less by \\'eight by volume of 146 alcohol in the accused's blood, or 0.05 grams or less per two hundred ten (210) liters of 147 the accused's breath, it shall be presumed that the accused 'Nas not under the influence 148 of alcoholic intoxicants; 149 150 (2) If there was at that time in excess of 0.05 percent but less than 0.08 151 percent by ...:eight by volume of alcohol in the accused's blood, or 0.05 grams but less 152 than 0.08 grams per two hundred ten (210) liters of the accused's breath, such facts 153 shall not give rise to any presumption that the accused was or was not under the 154 influence of alcoholic intoxicants, but such facts may be considered with other 155 competent evidence in determining the guilt or innocence of the accused; 156 157 (3) If there v:as at that time 0.08 percent or more by weight by volume of 158 alcohol in the accused's blood, or 0.08 grams or more per two hundred ten (210) liters 159 of the accused's breath, it shall be presumed that the accused was under the influence 160 of alcoholic intoxicants. 161 162 Be it further ordained that the effective date of this ordinance shall be July 1, 163 2007. Adopted by the City Council of the City of Virginia Beach, Virginia, on this 26th day of June, 2007. 1 AN ORDINANCE TO AMEND SECTIONS 2-462 AND 2 2-464 OF THE CITY CODE PERTAINING TO HIGH 3 CONSTABLE 4 5 SECTIONS AMENDED: S 2-462 AND 2-464 6 7 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 8 BEACH, VIRGINIA: 9 10 That Sections 2-462 and 2-464 of the Code of the City of Virginia Beach, Virginia, 11 are hereby amended and reordained to read as follows: 12 13 Sec. 2-462. High constable; appointment. 14 15 Pursuant to sections 20.11 and 20.14 of the Charter, the sheriff is hereby 16 appointed as the high constable and is authorized to designate deputy sheriffs to act on 17 his behalf in carrying out the duties of the high constable as set forth in section 4-49J 2- 18 463. 19 20 21 22 Sec. 2-464. Fees collected by high constable. 23 24 (a) The fees collected by the high constable shall be the same as those fees 25 set forth in section 14.1 105 17.1-273 of the Code of Virginia, as amended. 26 27 (b) All such fees shall be deposited into the city treasury for use in the general 28 operation of the city. 29 Adopted by the City Council of the City of Virginia Beach, Virginia, on this 26th day of June, 2007. 1 AN ORDINANCE TO AMEND SECTION 21- 2 303 OF THE CITY CODE, REPEAL SECTION 3 21-307, AND ADD SECTION 21-312, ALL 4 PERTAINING TO PARKING PROHIBITIONS 5 6 SECTION AMENDED: S 21-303 7 SECTION REPEALED: S 21-307 8 SECTION ADDED: S 21-312 9 10 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 11 BEACH, VIRGINIA: 12 13 That Section 21-303 of the Code of the City of Virginia Beach, Virginia, is hereby 14 amended and reordained, that Section 21-307 is hereby repealed, and Section 21-312 15 is hereby added and ordained to read as follows: 16 17 Sec. 21-303. General parking prohibitions; penalties for violation. 18 19 (a) No person shall park a vehicle, except when necessary to avoid conflict 20 with other traffic or in compliance with the directions of a police officer or traffic-control 21 device, in any of the following places: 22 (1) '1'Jithin fiftoen (15) feet of a fire hydrant. 23 f21ill Within any designated fire lane. 24 ~m At any place so as to block any fire department connection. 25 ~ru Within fifteen (15) seventy-five (75) feet of the driveway entrance to any 26 fire station aflG, if properly posted, or on the side of a street opposite the 27 entrance to any fire station, within seventy five (75) feet of the entrance, 28 v/hen properly signposted. 29 (5) '.^!ithin fifteen (15) feet of the entrance to a building housing rescue squad 30 equipment or ambulances, pro'.'ided such buildings arc plainly designated. 31 (e1ffi In front of a public or private driveway. 32 (7) '1'1ithin an intersection. 33 ~@ On the roadway side of any vehicle parked at the edge or curb of a street 34 (double parking). 35 f9t@ Upon any bridge or other elevated structure upon a street or highway or 36 within a tunnel. 37 fiG1illOn the left-hand side of roadway of a two-way street. The provisions of 38 this sub-section exclude those city vehicles operated by city employees 39 executing official duties that require repeated vehicle exit and entry. 40 0-11lIDAt any place so as to impede or render dangerous the use of any street or 41 highway. 42 43 (b) No person shall park a vehicle, except when necessary to avoid conflict 44 with other traffic or in compliance with the directions of a police officer or traffic-control 45 device, in any of the following places: 46 (1) On a sidewalk. 47 (2) On a crosswalk. 48 (3) Within twenty (20) feet of a marked crosswalk at an intersection; provided, 49 however, th3t v..here there is no cross\\'3Ik at 3n intersection, no person 50 shall so park a vehicle within t\\'enty (20) feet from the intersection of curb 51 lines or, if none, then within fifteen (15) foet of the intersection of property 52 Mes. 53 (4) Within thirty (30) feet upon the approach to any flashing beacon, stop sign 54 or traffic-control signal located at the side of a roadway. 55 (5) Between a safety zone and the adjacent curb or within thirty (30) feet of 56 points on the curb immediately opposite the ends of a safety zone, unless 57 a different length is indicated by official signs or markings. 58 (6) Within fifty (50) feet of the nearest rail of a railroad grade crossing. 59 (7) Alongside or opposite any street excavation or obstruction, when such 60 parking would obstruct traffic. 61 (8) At any place where official signs prohibit, reserve or restrict parking, 62 (9) In a residential or apartment district (area), if such vehicle is a commercial 63 vehicle in excess of twenty (20) feet in length and/or seven (7) feet in 64 height. This restriction shall not apply to commercial vehicles parked while 65 engaged in the normal conduct of business or in the delivery or provision 66 of goods or services in a residential or apartment district (area). 67 (10) At any place so as to prevent the use of a curb ramp located on public 68 property or on privately owned property open to the public. 69 (11) At any place, angle parked or perpendicular to a curb, unless street 70 markings permit. 71 (12) On any street or highway or any City parking lot, displaying a sign or 72 lettering indicating that the vehicle is offered for sale or rent. 73 74 (c) No person shall park on any street or highway, or on any City parking lot, 75 any vehicle which fails to display one (1) or more of the following: 76 (1)!\ valid st3te vehicle safety inspection decal. 77 (2) V yalid and current state license plates. 78 79 (d) (1) VVhen a notice or citation is attached to a vehicle found parked in 80 viol3tion of 3ny provision of this Section, the owner of the vehicle may, 81 within fourteen (11) calendar days thereafter, pay to the City Treasurer, in 82 s3tisfaction of such viol3tion, a penalty of thirty five dollars ($35.00), for a 83 viol3tion of any provision of subsection (3) or (c), except (3)(2), or twenty 84 dollars ($20.00) for 3 violation of any provision of subsection (b), for each 85 hour or fr3ction thereof during which such vehicle was unl3wfully parked. 86 Such payment shall constitute a plea of guilty of the violation in question. If 87 such p3yment is not postmarked or received by the City Tre3surer within 88 fourteen (11) calendar days after issuance of such notice or citation, the 89 penalty shall be seventy dollars ($70.00) for a violation of any provision of 90 subsection (a) or (c) of this section, except (3)(2), and forty dollars 91 ($10.00) for a violation of any provision of subsection (b) of this Section. 92 (2) For violations of subsection (a)(2), the penalty shall be fifty dollars 93 ($50.00) if paid to the City Treasurer within fourteen (11) days after the 94 notice or citation is issued, and if payment is not postmarked or received 95 by the City Treasurer 'Nithin fourteen (11) days after issuance of the notice 96 or citation, the penalty shall be one hundred dollars ($100.00). 97 98 (e) The failure of any owner to make payment in accord 'I.'ith subsection (d) 99 abovo or present the notice or citation for a violation of this Section at an office of the 100 City Treasurer for certification to the General District Court, v.'ithin thirty (30) days, shall 101 render such O'.\'ner subject to a fine of not more than fifty dollars ($50.00) in addition to 102 the penalty prescribed by subsection (d). 103 104 (d) Penalties 105 (1) When a notice or citation is attached to a vehicle found parked in violation of 106 any provision of this Section or Section 21-1 incorporatinQ the provisions of Title 46.2 of 107 the Code of VirQinia. the owner of the vehicle may pay to the City Treasurer, in 108 satisfaction of any such violation, a penalty fine as listed below when such payment is 109 postmarked or received by the City Treasurer within fourteen (14) calendar day after 110 issuance of such a notice or citation. Such payment shall constitute a plea of Quilty to 111 the violation in Question. 112 (i) A penalty fine as provided by the Rules of the Supreme Court for all violations 113 of City Code Section 21-1 incorporatinQ the provisions of Title 46.2 of the Code of 114 VirQinia. 115 (ij) A penalty fine of thirty-five dollars ($35) for a violation of any provision of 116 subsection (a), except (a)(2), for each hour or fraction thereof durinQ which such 117 vehicle was unlawfully parked. 118 (iii) A penalty fine of twenty dollars ($20) for a violation of any provision of 119 subsection (b) for each hour or fraction thereof durinQ which such vehicle was 120 unlawfully parked. 121 (iv) A penalty fine of thirty-five dollars ($35) for a violation of subsection (c) for 122 each day or fraction thereof durinQ which such vehicle was unlawfully parked. 123 (v) A penalty fine of fifty dollars ($50) for a violation of subsection (a)(2) for each 124 hour or fraction thereof durinQ which such vehicle was unlawfully parked. 125 (2) If such payment is not postmarked or received by the City Treasurer within 126 fourteen (14) calendar days after issuance of such notice or citation, the penalty fine 127 shall increase to double that indicated above. 128 (3) For failure to respond to notices or citations within thirty (30) days. refer to 129 Section 21-312(b) below. 130 131 Soc. 21 307. Parking vehicle without current state liconso. 132 133 It shall be unlavJful for any person to park any vehicle having no current state 134 license on any high'Nay v:ithin the City. 135 136 137 Sec.21-312 Penalty for violations of Division; Fine for Failure to Pay in Timely 138 Manner. 139 140 (a) Unless otherwise provided, when a notice or citation is attached to a vehicle 141 or Qiven to a driver pursuant to this Division. the owner of the vehicle may. within 142 fourteen (14) calendar days thereafter. pay to the City Treasurer. in satisfaction of the 143 violation. a ~enalty of thirty-five dollars ($35). Such payment shall constitute a plea of 144 Quilty to the violation. If such payment is not postmarked or received by the City 145 Treasurer within fourteen (14) calendar days after receipt of such notice or citation, the 146 penalty shall be seventy dollars ($1Q1. 147 148 (b) Any owner who. within thirty (30) days of notice or citation issuance. fails to 149 either make payment as provided by this Division. or to present the citation or notice of 150 violation at any office of the City Treasurer for certification to the General District Court, 151 shall be subiect to a supplementary fine of not more than fifty dollars ($50) in addition to 152 the penalty set forth in this Division. 153 154 Be it further ordained that the effective date of this ordinance is July 1, 2007. Adopted by the City Council of the City of Virginia Beach, Virginia, on this 26th day of June, 2007. 1 AN ORDINANCE TO AMEND SECTIONS 23- 2 22.1 AND 23-22.2 OF THE CITY CODE 3 PERTAINING TO DRINKING ALCOHOLIC 4 BEVERAGES IN PUBLIC PLACES OR ON 5 PUBLIC SCHOOL GROUNDS 6 7 SECTIONS AMENDED: SS 23-22.1 AND 23-22.2 8 9 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 10 BEACH, VIRGINIA: 11 12 That Sections 23-22.1 and 23-22.2 of the Code of the City of Virginia Beach, 13 Virginia, are hereby amended and reordained to read as follows: 14 15 Sec. 23-22.1. Drinking alcoholic beverages, or tendering to another, in public 16 place. 17 18 (a) If any person shall take a drink of alcoholic beverage or shall tender a 19 drink thereof to another, whether accepted or not, or manually possess any unsealed or 20 open container of any kind which contains an alcoholic beverage, at or in any public 21 place, as defined bv section 4.1-100, Code of VirQinia, or on or within any vehicle 22 located in a public place, he shall be guilty of a Class 4 misdemeanor. 23 24 (b) It shall be unlawful and punishable as a Class 4 misdemeanor for any 25 person to consume an alcoholic beverage while driving a motor vehicle upon a public 26 highway of this city. A rebuttable presumption that the driver has consumed an alcoholic 27 beverage in violation of this section shall be created if (i) an open container is located 28 within the passenger area of the motor vehicle, (ii) the alcoholic beverage in the open 29 container has been at least partially removed and (iii) the appearance, conduct, odor of 30 alcohol, speech or their physical characteristic of the driver of the motor vehicle may be 31 reasonably associated with the consumption of an alcoholic beverage. 32 33 (c) This section shall not prevent any person from drinking alcoholic 34 beverages or offering a drink thereof to another in the dining room or other designated 35 room, as defined in section 4-25, Code of Virginia, of a hotel, restaurant, club or boat, or 36 in a dining car, club car, or buffet car of any train, or beer only within all seating areas, 37 concourses, walkways, concession areas, as well as other additional locations 38 designated by the Virginia Alcoholic Beverage Control Commission, in coliseums, 39 stadia, or similar facilities, during the performance of a professional sporting exhibition 40 or event, provided such beer is served in a paper, plastic or similar disposable 41 container, or in any other establishment, provided such hotel, restaurant, club, boat, 42 dining car, club car, buffet car, coliseum, stadium or similar facility or other 43 establishment, or the person who operates the same, including a concessionaire, is 44 licensed to sell at retail for consumption in such dining room, room, car, seating areas, 45 concourses, walkways, concession areas, as well as other additional locations 46 designated by the commission, in such coliseum, stadium or similar facility or 47 establishment, such alcoholic beverages, and the alcoholic beverages drunk or offered 48 were purchased therein. 49 50 Sec. 23-22.2. Drinking or possession of alcoholic beverages in or on public 51 school grounds. 52 53 If any person, in or upon the grounds of any free public element:3rY or secondary 54 school, during school hours or school or student activities, shall take 3 drink of any 55 31coholic bever3ge or h3'1e in his possession any alcoholic beverage, he shall bo guilty 56 of a misdeme3nor punish3ble by confinement in jail for not more th3n six (6) months 57 3nd 3 fine of not more than five hundred dollars ($500.00), either or both. 58 59 a. No person shall possess or drink any alcoholic beveraqe in or upon the 60 qrounds of any public elementary or secondary school durinq school hours or durinq 61 school or student activities. 62 63 b. No person shall drink and no orqanization shall serve any alcoholic 64 beveraqe in or upon the qrounds of any public elementary or secondary school after 65 school hours, or after student activities. except for reliqious conqreqations usinq wine 66 for sacramental purposes only. 67 68 c. Any person convicted of a violation of this section shall be quilty of a Class 69 2 misdemeanor. 70 Adopted by the City Council of the City of Virginia Beach, Virginia, on this 26th day of June, 2007. 1 AN ORDINANCE TO ADD SECTION 23-43.1 2 TO THE CITY CODE PERTAINING TO 3 TRESPASSING ON PUBLIC 4 TRANSPORTATION 5 6 SECTION ADDED: 9 23-43.1 7 8 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 9 BEACH, VIRGINIA: 10 11 That Section 23-43.1 of the Code of the City of Virginia Beach, Virginia, is hereby 12 added to read as follows: 13 14 Sec. 23-43.1 Trespassing on public transportation; penaltv 15 16 @l Any person who enters or remains upon or within a vehicle operated by a 17 public transportation service without the permission of, or after havinq been forbidden to 18 do so by the owner, lessee, or authorized operator thereof is quilty of a Class 4 19 misdemeanor. 20 21 lQ.l "Public transportation service" means passenqer transportation service 22 provided by bus. rail or other surface conveyance that provides transportation to the 23 qeneral public on a reqular and continuinq basis. 24 25 Be it further ordained that the effective date of this ordinance is July 1, 2007. 26 27 Adopted by the City Council of the City of Virginia Beach, Virginia, on this 26th 28 day of June, 2007. 1 AN ORDINANCE TO ADD SECTION 38-2.1 2 TO THE CITY CODE PERTAINING TO 3 FINGERPRINTING FOR CONCEALED 4 HANDGUN PERMITS 5 6 SECTION ADDED: 9 38-2.1 7 8 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 9 BEACH, VIRGINIA: 10 11 That Section 38-2.1 of the Code of the City of Virginia Beach, Virginia, is hereby 12 added to read as follows: 13 14 Sec.38-2.1 Finaerprints required; exception 15 16 ill As authorized bv Code of Virqinia & 15.2-915.3, each person filinq an 17 application for a concealed firearm permit shall submit to finqerprintinq for the purposes 18 of obtaininq the applicant's state or national criminal history record. 19 20 Ql Finqerprintinq shall not be required for the renewal application of an 21 existinq permit issued pursuant to Code of Virqinia & 18.2-308(1). 22 23 Be it further ordained that the effective date of this ordinance is July 1, 2007. 24 25 Adopted by the City Council of the City of Virginia Beach, Virginia, on this 26th 26 day of June, 2007. - 33 - Item V.J.4.alb. RESOLUTIONS/ORDINANCES ITEM #56574 Upon motion by Councilman Dyer, seconded by Council Lady Wilson, City Council ADOPTED: Ordinances re Beaches and Waterways Advisory Commission a. AMEND and REORDAIN ~6-162 of the City Code re terms of members b. AMEND By-Laws re removal of staggered terms Voting: 10-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James 1. Wood Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf June 26, 2007 1 AN ORDINANCE TO AMEND SECTION 6-162 OF THE CITY 2 CODE PERTAINING TO THE TERMS OF MEMBERS OF 3 THE BEACHES AND WATERWAYS ADVISORY 4 COMMISSION 5 6 Section Amended: City Code S 6-162 7 8 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 9 VIRGINIA: 10 11 That the City Code is hereby amended and reordained by the amendment of 12 Section 6-162 to read as follows: 13 14 CHAPTER 6 15 BEACHES, BOATS AND WATERWAYS 16 17 18 19 ARTICLE VIII. BEACHES AND WATERWAYS ADVISORY COMMISSION 20 21 22 23 Sec. 6-162. Composition; terms of members. 24 25 (a) The commission shall be comprised of eleven (11) members, with one member 26 being appointed by city council from the residents of each of the city's seven (7) election 27 districts, and four (4) members being appointed by city council from the residents of the 28 city at large. Members shall be appointed for terms of three (3) years. 29 30 (b) The initial terms of two (2) at large members and the members appointed from 31 the Bayside, Beach and Centerville districts shall be for three (3) years; the initial terms 32 of one at large member and the mombers appointed from the Kempsville and 33 Lynnhaven districts shall be for 1\\'0 (2) years; and the initial terms of one at large 34 member and the members appointed from the Princess ^nne and Rose Hall districts 35 shall be for one year. Thereafter, the terms of all members shall be for three (3) years. 36 Adopted by the Council of the City of Virginia Beach, Virginia, on the 26th day of June, 2007. APPROVED AS TO LEGAL SUFFICIENCY: ldlifkA IW.N0J4j City Attorney's Office CA 10426 R-4 June 15, 2007 1 AN ORDINANCE TO AMEND THE BYLAWS OF THE 2 BEACHES AND WATERWAYS COMMISSION REGARDING 3 TERMS OF MEMBERSHIP 4 5 WHEREAS, the Bylaws of the Beaches and Waterways Advisory Commission 6 were adopted by the City Council on May 23, 2000; and 7 8 WHEREAS, such Bylaws provided for staggered initial terms of members of the 9 Commission; and 10 11 WHEREAS, all such initial terms have expired, such that there is no further need 12 to provide for staggered initial terms for the Commission. 13 14 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 15 VIRGINIA BEACH, VIRGINIA: 16 17 That Article III, Sections 2 and 3 and Article V, Section 1 of the Bylaws of the 18 Beaches and Waterways Advisory Commission are hereby amended and reordained to 19 read as follows: 20 ARTICLE III 21 MEMBERS 22 23 24 25 Section 2. Term. The initial terms of the members appointed from the Bayside, Beach 26 ~md Centerville districts shall be for three (3) years; the initial terms of the one (1) at 27 large member and the members appointed from the Kempsville and Lynnhavon districts 28 shall be for two (2) years; and the initial terms of the one (1) at large member and the 29 members appointed from the Princess I\nne and Rose Hall districts shall be for one (1) 30 year. Thereafter, a_members Members shall be appointed to serve more than three 31 (3) years terms, and in accordance with ~ Section 2-3 of the City Code, no member shall 32 be appointed to serve more than three (3) consecutive three-year terms. All initial 33 appointments shall commence on the same date. 34 35 Section 3. Qualifications. Each member must be a resident of the district from which he 36 or she is appointed, and the at-large member~ must be a-resident~ of the City of Virginia 37 Beach. The appointees shall have knowledge and experience concerning beach and 38 waterway-related issues. 39 40 ARTICLE V 41 REPORTS 42 43 Section 1. Annual Report. Within forty-five (45) days of the end of the rascal fiscal 44 year, the Commission shall prepare, and submit to City Council, an annual report of its 45 activities, recommendations, and proposals, including a financial statement, if 46 applicable. 47 48 49 50 A true copy of the Bylaws of the Beaches and Waterways Advisory Commission 51 is attached as amended. 52 Adopted by the Council of the City of Virginia Beach, Virginia on the 26th day of June, 2007. BYLAWS OF THE BEACHES AND WATERWAYS ADVISORY COMMISSION ARTICLE I NAME The name of the commission shall be the Beaches and Waterways Advisory Commission. ARTICLE II PURPOSE The purpose of the Commission shall be: 1. To review issues referred to it by City Council concerning access to, and the preservation, development and use of, the City's beaches and waterways, and to make recommendations to the City Council regarding such issues. 2. To serve as the City's local erosion advisory commission and carry out the responsibilities imposed on such local commissions pursuant to S 10.1-711 of the Code of Virginia. ARTICLE III MEMBERS Section 1. Number. The Commission shall be comprised of eleven (11) members, with one (1) member being appointed by City Council from the residents of each of the City's seven (7) election districts, and four (4) members being appointed by City Council from residents of the City at large. Section 2. Term. Members shall be appointed to serve three (3) year terms, and In accordance with Section 2-3 of the City Code, no member shall be appointed to serve more than three (3) consecutive three-year terms. Section 3. Qualifications. Each member must be a resident of the district from which he or she is appointed, and the at-large members must be residents of the City of Virginia Beach. The appointees shall have knowledge and experience concerning beach and waterway-related issues. Section 4. Chair and Vice-Chair. The Chair and Vice-Chair shall be appointed by a majority vote of the Commission held on the first meeting in July, and shall serve for a term of one (1) year. The Chair (or Vice-Chair in the Chair's absence) shall preside over all meetings of the Commission. The Chair and Vice-Chair may be re-appointed for additional terms. Section 5. Attendance. Attendance records shall be kept at each meeting of the Commission and an annual report of the attendance of the members shall be filed with the City Clerk by June 30 of each year for review by city Council. No member shall accumulate an annual total of more than three (3) absences (or be absent from more than one-fourth of the total number of meetings). If this limitation is exceeded from reasons other than personal illness, death, or other unusual circumstances, the appointment shall be terminated automatically, or as otherwise prescribed by law. Members shall be paid $50.00 for each meeting attended. Section 6. Vacancies. A vacancy caused by death, resignation, termination, expiration, or otherwise shall be filled by City Council for the unexpired term thereof, or in the case of an expiration, for three (3) years, within thirty (30) days of said vacancy. ARTICLE IV MEETINGS Section 1. Regular meetings. When the Commission has business it shall meet at least once a month at a time and location to be determined by the Chair upon consultation and coordination with the other members. Section 2. Special meetings. A special meeting may be called by the Chair of three (3) members of the Commission, or may be convened by City Council, to consider any matter that, in the determination of the Chair, the members, or the City Council, needs to be addressed prior to a regular meeting. Section 3. Requirements. A majority of Commission members shall be present in order for any official action to be taken. All actions of the Commission shall be conducted at a regular or special meeting and shall require a majority vote of those members present. ARTICLE V REPORTS Section 1. Annual Report. Within forty-five (45) days of the end of the fiscal year, the Commission shall prepare, and submit to City Council, an annual report of its activities, recommendations, and proposals, including a financial statement, if applicable. Interim reports to City Council may be provided when deemed appropriate or necessary by the Commission or the Council. Section 2. Requirements. All reports shall be approved by a majority of the members of the Commission. In any report to the Council, the Commission shall identify any conflicts that its report may have with the proposals and/or recommendations of other City agencies. ARTICLE VI COORDINATION Section 1. City departments. The Commission shall work with and through the Department of Public Works (lithe department") which shall, in close cooperation with the City Manager's Office, be responsible for coordinating the efforts of the Commission with other City departments, boards, and commissions to (1) ensure that there is no unnecessary duplication of efforts; (2) enable the Commission to review the proposals and recommendations of such other City departments, boards and commissions for compatibility (or incompatibility) with Commission objectives; and (3) enable such other City departments, boards and commissions to review and provide comments on Commission-generated proposals and recommendations. Section 2. Other agencies. The Commission and the Department shall make a special effort to establish open lines of communication with other agencies involved in the review of beach and waterway-related issues. ARTICLE VII COMMITTEES The Chair of the Commission shall have the authority to appoint committees, comprised of members of the Commission and non-members with special expertise, to study and review specific areas of concern and to report back to the full Commission for such action as the Commission may deem appropriate. ARTICLE VIII AMENDMENTS No alteration, amendment, repeal of these Bylaws or any section hereof shall be effective without the prior consent of City Council. Adopted by the City Council of the City of Virginia Beach on the 26th day of .111 n p , 2007 - 34 - Item V.J.5. RESOLUTIONS/ORDINANCES ITEM #56575 Upon motion by Councilman Dyer, seconded by Council Lady Wilson, City Council ADOPTED: Ordinance to AUTHORIZE execution of a Deed of Release and Exchange re an Agricultural Lands Preservation (ARP) easement for GEORGE B., JR. and JUANITA F. PENDLETON re a three acre building site at Indian Creek Road near Baum Road DISTRICT 7 - PRINCESS ANNE Voting: 10-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf June 26, 2007 1 AN ORDINANCE AUTHORIZING AND DIRECTING 2 THE CITY MANAGER TO EXECUTE A DEED OF 3 RELEASE AND EXCHANGE PERTAINING TO AN 4 AGRICULTURAL LANDS PRESERVATION 5 EASEMENT LOCATED ON LAND OF GEORGE B. 6 PENDLETON, JR. AND JUANITA F. PENDLETON 7 8 9 WHEREAS, on September 13, 2000, the City of Virginia Beach (hereinafter the "City") and 10 George B. Pendleton, Jr. and Juanita F. Pendleton (hereinafter "Pendleton") entered into 11 Installment Purchase Agreement Number 2000-30, whereby the City acquired an Agricultural 12 Lands Preservation Easement (hereinafter "Preservation Easement") upon certain property 13 owned by Pendleton; and 14 15 WHEREAS, as part of the aforesaid transaction, Pendleton reserved for future 16 development a portion of property having an area of 3.000 acres, more or less, such that the 17 Preservation Easement does not encumber the reserved area; and 18 19 WHEREAS, Pendleton desires to exchange an area of land not encumbered by the 20 Preservation Easement for an equal area of land which is to be encumbered by the Preservation 21 Easement, as shown on the attached plat entitled "AMENDED EXHIBIT SHOWING EASEMENT 22 EXCEPTION ON PROPERTY STANDING IN THE NAME OF GEORGE B. & JUANITA F. 23 PENDLETON JR DB 937 PG 286 FOR CITY OF VIRGINIA BEACH AGRICULTURAL RESERVE 24 PROGRAM VIRGINIA BEACH, VIRGINIA" Scale 1" = 40', dated June 5, 2007, and prepared by 25 Digital Survey Services, LLC; and 26 27 WHEREAS, pursuant to Section 11 of the Agricultural Lands Preservation Ordinance 28 (hereinafter "Ordinance"), a landowner may petition the City Council for the extinguishment of a 29 Preservation Easement in exchange for the conveyance to the City of a Preservation Easement 30 on a different portion of the landowner's property, under certain conditions set forth in the 31 Ordinance; and 32 33 WHEREAS, the Ordinance provides that the City Council shall approve such an exchange 34 if it makes certain findings enumerated in the Ordinance; and 35 36 WHEREAS, the City Council does hereby make such findings, to-wit: 37 38 (1) the acquisition of the proposed Preservation Easement in lieu of the existing Preservation 39 Easement does not adversely affect the City's interests in accomplishing the purposes of the 40 Ordinance; 41 (2) the proposed Preservation Easement area meets all of the eligibility requirements set forth 42 in Section 7 of the Ordinance; 1 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 (3) the land to be encumbered by the proposed Preservation Easement is of at least equal fair market value, is of greater value as permanent open space, and of as nearly as feasible equivalent usefulness and location for use as permanent open-space land as the property on which the existing Preservation Easement is located; and (4) the consideration for the acquisition of the new Preservation Easement consists solely of the extinguishment of the existing Preservation Easement. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH: That subject to the determination of the City Attorney that there are no defects in title to the property to be placed under the Preservation Easement or other restrictions or encumbrances thereon which may, in the opinion of the City Attorney, adversely affect the City's interests, the City Manager be, and hereby is, authorized and directed to execute a Deed of Release and Exchange pursuant to which the City releases the existing Preservation Easement on a portion of the property, as shown on the aforesaid survey, and acquires, in exchange therefore, land equal in area to be placed under the Preservation Easement, as shown on such survey. Adopted by the City Council of the City of Virginia Beach, Virginia, on this 2..6..t19ay of ,2007. 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RESOLUTIONS/ORDINANCES ITEM #56576 Upon motion by Councilman Dyer, seconded by Council Lady Wilson, City Council ADOPTED: Ordinance to AUTHORIZE temporary encroachments into portions of City property by DAVID F. and JERRY A. HARRIS to remove an existing float, ramp and pier to construct the same and repair the pier at 700 Kennedy Avenue in Lake Rudee DISTRICT 6 - BEACH 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. Nothing shall prohibit the City from immediately removing or ordering the removal of all or any part of the encroachment in the event of an emergency or public necessity, and applicant shall bear all costs and expenses of such removal. 3. The Temporary Encroachment herein authorized terminates upon notice by the City to the applicant, and that within thirty (30) days after the notice is given, the Temporary Encroachment must be removed from the Encroachment Area by the applicant; and that the applicant will bear all costs and expenses of such removal. 4. 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. 5. 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. 6. The applicant agrees to maintain the Temporary Encroachment so as not to become unsightly or a hazard. 7. The applicant must obtain a permit from the Office of the Planning Department prior to commencing any construction within the Encroachment Area. 8. 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 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 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. June 26, 2007 - 36 - Item v.J. 6. RESOL UTIONS/ORDINANCES ITEM #56576 (Continued) 9. The temporary encroachment must conform to the minimum setback requirements. 10. Must submit for review and approval "as built" plans sealed by a registered professional engineer, as required by the City Public Works/Operations Management Division and the Engineering Division of Public Utilities. 11. 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 the 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 if it were owned 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 the Temporary Encroachment is allowed to continue thereafter, and may collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. Voting: 10-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf June 26, 2007 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 Requested by Department of Public Works AN ORDINANCE TO AUTHORIZE TEMPORARY ENCROACHMENTS INTO CITY PROPERTY KNOWN AS LAKE RUDEE LOCATED AT THE REAR OF 700 KENNEDY AVENUE FOR THE ADJACENT PROPERTY OWNERS, DAVID F. HARRIS AND JERRY A. HARRIS, THEIR HEIRS, ASSIGNS AND SUCCESSORS IN TITLE WHEREAS, David S. Harris and Jerry A. Harris desire to remove an existing float, ramp, and pier and to construct and maintain a proposed float, fixed pier, and ramp, upon City property located at the rear of 700 Kennedy Avenue upon and into the City property known as Lake Rudee. WHEREAS, City Council is authorized pursuant 2009 and 15.2-2107, Code of Virginia, 1950, as authorize temporary encroachments upon and into property subj ect to such terms and conditions as prescribe. to 55 15.2- amended, to the City's Council may NOW, THEREFORE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That pursuant to the authority and to the extent thereof contained in 55 15.2-2009 and 15.2-2107, Code of Virginia, 1950, as amended, David S. Harris and Jerry A. Harris, their heirs, assigns and successors in title are authorized to remove an existing float, ramp, and pier and to construct and maintain a proposed float, fixed pier, and ramp, into the City's property as shown on the map entitled: "PROPOSED ENCROACHMENT FOR DAVID F. & JERRY A. HARRIS LOT 22, BLOCK 40, 700 KENNEDY AVENUE SHADOWLAWN HEIGHTS BEACH DISTRICT, VIRGINIA BEACH, VIRGINIA", a copy of which is on file in the Department of Public Works and to which reference is made for a more particular description; and BE IT FURTHER ORDAINED, that the temporary encroachments are expressly subj ect to those terms, conditions and criteria contained in the Agreement between the City of Virginia Beach and David F. Harris and Jerry A. Harris (the "Agreement"), which is attached hereto and incorporated by reference; and '^~/'\ 46 47 48 49 50 51 52 53 54 55 56 BE IT FURTHER authorized designee Agreement; and ORDAINED, that the City 1S hereby authorized his the Manager or to execute BE IT FURTHER ORDAINED, that this Ordinance shall not be in effect until such time as David F. Harris and Jerry A. Harris and the City Manager or his authorized designee execute the Agreement. the 26th Adopted by Virginia, on the CA9623 Council of the day of June City of Virginia , 2007. Beach, X:\OID\REAL ESTATE\EncroachmentslPW Ordinances\CA9623 Harris Ordinance,doc V :\applications\citylawprod\cycom32\ Wpdocs\D030IP002\00032381.DOC R-1 PREPARED: 5/1/07 APPROVED AS TO CONTENTS ~rroo C.~4-.. FtlREAL ESTATE APPROVED AS TO LEGAL SUFFICIENCY AND FORM J) Mffi Cf ~ CITY ATTORNEY A ]iJ PREPARED BY VIRGINIA BEACH CITY ATTORNEY'S OFFICE EXEMPTED FROM RECORDA TION TAXES UNDER SECTION 58.1-811 (C)(4) THIS AGREEMENT, made this 4th day of May , 2007, by and between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation of the Commonwealth of Virginia, Grantor, "City", and DAVID F. HARRIS AND JERRY A. HARRIS, 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 of land designated and described as Lot 22, Block 40, as shown on that certain plat entitled "MAP OF SHADOW LAWN HEIGHTS VIRGINIA BEACH PRINCESS ANNE CO" and recorded in Map Book 7, Page 14 in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and being further designated and described as 700 Kennedy Avenue, Virginia Beach, Virginia 23451 ; WHEREAS, it is proposed by the Grantee to remove an existing float, ramp, and pier and to construct and maintain a float, ramp, and fixed pier, the "Temporary Encroachment", in the City of Virginia Beach; WHEREAS, in constructing and maintaining the Temporary Encroachment, it is necessary that the Grantee encroach into a portion of existing City property known as Lake Rudee, the "Encroachment Area"; and GPIN (CITY PROPERTY - NO GPIN) 2427-01-5392 WHEREAS, the Grantee has requested that the City permit the Temporary Encroachment within the Encroachment Area. NOW, THEREFORE, for and in consideration of the premises and of the benefits accruing or to accrue to the Grantee and for the further consideration of One Dollar ($1.00), in hand paid to the City, receipt of which is hereby acknowledged, the City hereby grants to the Grantee permission to use the Encroachment Area for the purpose of constructing and maintaining the Temporary Encroachment. It is expressly understood and agreed that the Temporary Encroachment will be constructed and maintained in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach, and in accordance with the City's specifications and approval and is more particularly described as follows, to wit: A Temporary Encroachment into the Encroachment Area as shown on that certain plat entitled: "PROPOSED ENCROACHMENT FOR DAVID F. & JERRY A. HARRIS LOT 22, BLOCK 40,700 KENNEDY AVENUE SHADOWLA WN HEIGHTS BEACH DISTRICT, VIRGINIA BEACH, VIRGINIA," a copy of which is attached hereto as Exhibit "A" and to which reference is made for a more particular description. Providing however, nothing herein shall prohibit the City from immediately removing, or ordering the Grantee to remove, all or any part of the Temporary Encroachment from the Encroachment Area in the event of an emergency or public necessity, and Grantee shall bear all costs and expenses of such removal. 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 2 /" 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 construction, location or existence of the Temporary Encroachment. It is further expressly understood and agreed that nothing herein contained shall be construed to enlarge the permission and authority to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified herein, nor to permit the maintenance and construction of any encroachment by anyone other than the Grantee. It is further expressly understood and agreed that the Grantee agrees to maintain the Temporary Encroachment so as not to become unsightly or a hazard. It is further expressly understood and agreed that the Grantee must obtain a permit from the Office of 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 3 the insurance policies. The Grantee assumes all responsibilities and liabilities, vested or contingent, with relation to the construction, location, and/or existence of the Temporary Encroachment. It is further expressly understood and agreed that the Temporary Encroachment must conform to the minimum setbacks requirements, as established by the City. It is further expressly understood and agreed that the Grantee must submit for review and approval, a survey of The Encroachment Area, certified by a registered professional engineer or a licensed land surveyor, and/or "as built" plans of the Temporary Encroachment sealed by a registered professional engineer, if required by either the City Engineer's Office or the Engineering Division ofthe Public Utilities Department. It is further expressly understood and agreed that the City, upon revocation of such authority and permission so granted, may remove the Temporary Encroachment and charge the cost thereof to the Grantee, and collect the cost in any manner provided by law for the collection of local or state taxes; may require the Grantee to remove the Temporary Encroachment; and pending such removal, the City may charge the Grantee for the use of the Encroachment Area, the equivalent of what would be the real property tax upon the land so occupied if it were owned by the Grantee; and if such removal shall not be made within the time ordered hereinabove by this Agreement, the City may impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that the Temporary Encroachment is allowed to continue thereafter, and may collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. IN WITNESS WHEREOF, David F. Harris and Jerry A. Harris, the said Grantee, have caused this Agreement to be executed by their signatures. Further, that the City of Virginia 4 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 , 2007, by , CITY MANAGER! AUTHORIZED DESIGNEE OF THE CITY MANAGER. Notary Public My Commission Expires: 5 STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this day of ,2007, by RUTH HODGES FRASER, City Clerk for the CITY OF VIRGINIA BEACH. Notary Public My Commission Expires: STATE OF VIRGINIA CITY/cornn~{ OF V (Jr1:J~ , to-wit: The foregoing instrument was acknowledged before me this LJ."rh day of ~' 2007, by David F. Harris. ~~~ Notary Public My Commission Expires: .5 ~ \ an (0 STATE OF VIRGINIA CITY/COrnny OF ~'^ ~d, , to-wit: The foregoing instrument was acknowledged before me this ~ day of ,-.J-tO ,2007, by Jerry A. Harris. ~~ Notary Public My Commission Expires: 6lst\ a. a 10 6 APPROVED AS TO CONTENTS ~rm(S c. Cffvwsc..-. SIGNATURE PbJ ~Olj ~e:. DEPARTMENT APPROVED AS TO LEGAL SUFFICIENCY AND FORM ~\^. ' 11) w,iJ,~U#tJIN X:\Projects\Encroachments\Applicants\Harris, David F, Lake Rudee RAB-KMJ\Agreement Encroachmentl.doc 7 EXHffiIT "A" ~fQ~ O~;~: ~Q~v- UNE 11 L2 L3 L4 L5 L6 L7 L8 L9' 110 L11 112 113 ~ / 6'. ~ "l / :r:~ ("I C )-,00 co W ~ I1i ~ .~EXIST DOCK Wm -. ~:E:sci .- ::J~~Q..~Y a:ti..C) . r-- W ~ ~ IS r":~ ~ou..'" .("1 <l ...m .J~o :f" ~ ~ a!-~ o e.. C) REF 1 A: 99' B: 1151 C: 1241 0: 1231 REF 2 A: 921 B: 1081 C: 1251 0: 1151 UNE TABLE LENGTH 25.00 21.72 18.34 12.75 14.38 13.02 26.30 13.98 20.17 5.14 8.87 10.00 25.00 BEARING Sl3"53'48"E N76'06' 12"E S08"27'33-E SOT30'05"W S26'56'25"W S44053'01 "W S56'5S'53"W 583"07' 13"W N5T27'38"W S8T35'04"W N28"44'4Q"W S76'OS'12"W N 13"53' 48"W L--- PROPERlY UNE SCAlED FROM M.B. PG. 14 LOT 22 2427"-01-5392 (D.B. 1468, PG. 29) I CYPRESS AVENUE _ (50') ..J (M.B. 7, PG. 14) W . ~ - _ 0 .., 0 It) . ~~ - (I) ~'" L 12 CLOSED PORTION OF KENNEDY AVENUE -<'-" ~'" (KENNEDY 1) (D.B. 1739, PG. 29) <). <).~ ~ i';,\ ..J ~ N76'OS'12"E 145.00' <I.~ CLOSED PORTION OF KENNEDY AVENUE GPIN:2427-01-5471 KENNEDY 2 (M.B. 124, PG. 19) engineering services, inc. Civil Engineering - Land Surveying 3351 Stoneshore Road, Virginia Beach, VA. 23452 (757) 468-6800 FAX (757) 468-4966 E-mail: emailOesiolva.com Pro.ect Scale: Drawn 8 93028 1-=30' JLR Date 03/09/07 ~'" <).~ PROPOSED ENCROACHMENT FOR DAVID F. & JERRY A HARRIS LOT 22, BLOCK 40, 700 KENNEDY AVENUE SHADOWLAWN HEIGHTS BEACH DISTRICT, VIRGINIA BEACH, VIRGINIA Drawin Name M:\93\028\dIg\Slneys\9302B SIe PIcIl.dIg,lIl1 SIe I'aI M L l! E >- "U Cl) ~ ~ ~ >- "U Cl) c: c: Cl) i ID ::a: ID "U c: Cl) ~ Cl) iL: u ~ 11 "e- ~ x C/) 1-0::: C/)o::: we:{ a... :J I N <( 0 .~ We:{L,() ~ 0::: >- I T"" C) Z I- 0::: 0 f;l ( 0 jjjffi~ - :!:...., ~ C) I-: ION~ <( UZZ U <(<(a. o Ou.:C)C) .....J 0::: 0 U_ Z~ Wa I'-- Q o l:::! ~ :3 ID e:! :3 III (<) fl "~ Cl) (I) " 1:: Q) 0 > Ii <( :3 >- >- ~ t "'0 01 Q) Q) ~ 0.. C . o C 01 "-- Q) c: D... ~ ~ '">. 0 ~ +-0" 0 a. "Cur- E ~DI i - 37 - Item v.J. 7. RESOLUTIONS/ORDINANCES ITEM #56577 Upon motion by Councilman Dyer, seconded by Council Lady Wilson, City Council APPROVED: Annual PERMIT RENEWAL for area private and non-profit EMS organizations: American Lifeline Medical Transport Children's Hospital of the King's Daughters Eastern Shore Ambulance Life EVAC of Virginia Medical Transport Lifeline Ambulance Service, Inc. Medical Transport Nightingale Regional Air Ambulance Network Medical Systems Voting: 10-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf June 26, 2007 1 AN ORDINANCE TO GRANT PERMITS ALLOWING 2 CERTAIN EMERGENCY MEDICAL SERVICES 3 AGENCIES TO OPERATE IN THE CITY OF VIRGINIA 4 BEACH 5 6 WHEREAS, pursuant to City Code Section 10.5-2, any organization that operates 7 an emergency medical services agency or any emergency medical services vehicle within 8 the City must first obtain a permit from City Council, and such permits must be renewed on 9 an annual basis; and 10 11 WHEREAS, applications for permit renewals have been received by the following 12 agencies: American Lifeline Medical Transport, Children's Hospital of the King's Daughters, 13 Life Evac of Virginia Air Medical Transport, Medical Transport, Network Medical Systems, 14 Lifeline Ambulance Service, Eastern Shore Ambulance Service, and Nightingale Air 15 Ambulance; and 16 17 WHEREAS, the above-listed private ambulance agencies perform services not 18 provided by the City's volunteer rescue squads, such as non-emergency inter-facility 19 transports, which include both basic and advance life support calls. 20 21 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF 22 VIRGINIA BEACH; 23 24 1. That the City Council hereby grants Emergency Medical Services permits to the 25 following agencies: 26 27 American Lifeline Medical Transport, Children's Hospital of the King's Daughters, 28 Life Evac of Virginia Air Medical Transport, Medical Transport, Network Medical 29 Systems, Lifeline Ambulance Service, Eastern Shore Ambulance Service, and 30 Nightingale Air Ambulance. 31 32 2. That these permits shall be effective from July 1, 2007 until June 30, 2008. Adopted by the City Council of the City of Virginia Beach, Virginia, on this 26th day of June , 2007. JL~ Emergency Medical Services APPROVED AS TO LEGAL SUFFICIENCY: ~~.~ APPROVED AS TO CONTENT: CA 1 0434 R-3 June 20, 2007 - 38 - Item V.J.8. RESOLUTIONS/ORDINANCES ITEM #56578 Upon motion by Councilman Dyer, seconded by Council Lady Wilson, City Council ADOPTED: Ordinance to APPOINT the Directors of Parks and Recreation, Planning and Public Works as Viewers for one-year terms beginning July 1, 2007, re closures of City streets and alleys. Voting: 10-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf June 26, 2007 1 AN ORDINANCE APPOINTING THREE (3) VIEWERS FOR 2 ONE-YEAR TERMS BEGINNING JULY 1, 2007, TO VIEW 3 EACH STREET OR ALLEY PROPOSED TO BE CLOSED 4 5 WHEREAS, Section 33-11.2 of the City Code provides that "[t]hree (3) viewers 6 shall be appointed each year to serve terms of one year beginning July 1 to view each 7 and every street or alley proposed to be altered or vacated during the term;" and 8 9 WHEREAS, it is the desire of City Council to appoint the Directors of the 10 Departments of Planning, Public Works and Parks and Recreation to serve as viewers 11 for one-year terms, beginning July 1, 2007 and ending June 30, 2008. 12 13 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 14 VIRGINIA BEACH, VIRGINIA: 15 16 That the Director of Planning, Director of Public Works and Director of Parks and 17 Recreation of the City of Virginia Beach are each hereby appointed as a viewer to serve 18 a one-year term beginning July 1, 2007 and ending June 30, 2008, to view each and 19 every application to close a street or alley, and to report in writing their opinion of what 20 inconvenience, if any, would result from discontinuing the street or alley or portion 21 thereof. Adopted by the Council of the City of Virginia Beach, Virginia on the 26th day of June ,2007. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: X~F City Attorney's Offi CA 1 0445 R-1 June 20, 2007 - 39 - Item V.J.9.a/b. RESOLUTIONS/ORDINANCES ITEM #56579 Upon motion by Councilman Dyer, seconded by Council Lady Wilson, City Council ADOPTED: Ordinances to ACCEPT and APPROPRIATE grant funds from the Virginia Department of Transportation (VDOT) to ESTABLISH new Capital Improvement Programs (CIP), Bicycle and Pedestrian Safety, re installation of pedestrian signs and flashing lights: a. $63,450 for PACIFIC A VENUE between 5th and 43rd Streets b. $36, 288 for SHORE DRIVE between Kendall Street and Vista Circle Voting: J 0-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf June 26, 2007 1 AN ORDINANCE TO ESTABLISH CIP #2-166, PACIFIC 2 AVENUE BICYCLE AND PEDESTRIAN SAFETY, AND TO 3 ACCEPT AND APPROPRIATE A $63,450 GRANT FROM THE 4 VIRGINIA DEPARTMENT OF TRANSPORTATION TO 5 INSTALL PEDESTRIAN SIGNS AND FLASHING LIGHTS 6 ALONG PACIFIC AVENUE BETWEEN 5TH AND 43RD 7 STREETS 8 9 10 WHEREAS, a Bicycle and Pedestrian Safety Grant totaling $63,450 from the 11 Virginia Department of Transportation is available to be accepted and appropriated to CIP 12 #2-166, Pacific Avenue Bicycle and Pedestrian Safety, to install pedestrian signs with 13 flashing lights along Pacific Avenue between 5th and 43rd Streets; 14 15 WHEREAS, $7,460 in contributed staff time will be provided as an in-kind match for 16 this project. 17 18 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 19 VIRGINIA BEACH, VIRGINIA: 20 21 That CIP #2-166, Pacific Avenue Bicycle and Pedestrian Safety is hereby 22 established as a capital project. 23 24 That a $63,540 grant from the Virginia Department of Transportation is accepted 25 and appropriated to CIP #2-166 to install pedestrian signs with flashing lights along Pacific 26 Avenue between 5th and 43rd Streets, with estimated revenues increased accordingly. 27 28 Requires an affirmative vote by a majority of the members of the City Council. 29 30 Adopted by the Council of the City of Virginia Beach, Virginia, on the 26th day of 31 J'mQ' 2007. APPROVED AS TO CONTENT: ~tS P4l~" anage en rvlces APPROVED AS TO LEGAL SUFFICIENCY: ;::e~ City Attorney's Officet;;-- CA 10436 R-2 June 14, 2007 EXHIBIT A: PACIFIC AVENUE FROM 5th STREET TO 24th STREET SYrfQ~T CITY OF ".-GUllA KADI DI.'PT.OIFPU.u:;WOI:. I o 700 DISCLAIMER: The data is provided "as is' and the City of Virginia Beach expressly disclaims all warranties, UCC, and otherwise, express or implied including particular purpose, and further eJl:pressly disclaims responsibility for all incidental, consequential or special damages arising out of or in connection with the use or performance of th~ data. The user actmo.wledges the ~isclaimer 0: ~ar':8~ty EXHIBIT B: PACIFIC AVENUE FROM 24th STREET TO 43rd STREET DISCLAIMER: The data is provided "as is. and the City of Virginia Beach expressly disclaims aM warranties, UCC, and otherwise, express or implied including particular purpose, and further expressly disclaims responsibility for all incidental, consequential or special damages arising out of or in connection with the use or perfonnance of the data. The user acknowl..nnA" I".. ,j;~,..b;~6. _< ..____" and waives aN warranties expressed or implied and waives any riaht of r:j"im fnr rl.....,,~_~ '~..u"__'_' u_ ." . Aerial Itnaael"V {rl ?no? rn__M".__I...L. _L ,,,__ . 1 AN ORDINANCE TO ESTABLISH CIP#2-163, SHORE DRIVE 2 BICYCLE AND PEDESTRIAN SAFETY, AND TO ACCEPT 3 AND APPROPRIATE A $36,288 GRANT FROM THE VIRGINIA 4 DEPARTMENT OF TRANSPORTATION TO INSTALL 5 PEDESTRIAN SIGNS AND FLASHING LIGHTS ALONG 6 SHORE DRIVE BETWEEN KENDALL STREET AND VISTA 7 CIRCLE 8 9 10 WHEREAS, a Bicycle and Pedestrian Safety Grant totaling $36,288 from the 11 Virginia Department of Transportation is available to be accepted and appropriated to CIP 12 #2-163, Shore Drive Bicycle and Pedestrian Safety, to install pedestrian signs with flashing 13 lights along Shore Drive between Kendall Street and Vista Circle; 14 15 WHEREAS, $4,032 in contributed staff time will be provided as an in-kind match for 16 this project. 17 18 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 19 VIRGINIA BEACH, VIRGINIA: 20 21 That CIP #2-163, Shore Drive Bicycle and Pedestrian Safety is hereby established 22 as a capital project. 23 24 That a $36,288 grant from the Virginia Department of Transportation is accepted 25 and appropriated to CIP #2-163 to install pedestrian signs with flashing lights along Shore 26 Drive between Kendall Street and Vista Circle, with estimated revenues increased 27 accordingly. 28 29 Requires an affirmative vote by a majority of the members of the City Council. 30 31 Adopted by the Council of the City of Virginia Beach, Virginia, on the 26th day of 32 June, 2007. APPROVED AS TO CONTENT: ~~~. APPROVED AS TO LEGAL SUFFICIENCY: ~~F City Attorney's Offic CA 1 0435 R-2 June 14, 2007 8 N .... w :>1- ~w ~~w wl-d ct.1/)ct. O-J~ I-Ju 1/)'<'< .. CJ I- ,<21/) I-w~ ~~:> co:EO ~ol- Ict. Xu.. w - 40- Item V.J.9.c/g. RESOLUTIONS/ORDINANCES ITEM #56580 Upon motion by Councilman Dyer, seconded by Council Lady Wilson, City Council ADOPTED: Ordinances to ACCEPT and APPROPRIATE b. $322,999 from the State Compensation Board and $235,479 from the Sheriffs Special Revenue Fund to his budget re pay increases for uniformed personnel c. $300,000 in earned revenue from admissions and store sales to the Virginia Aquarium Special Revenue Fund d $29,983 from Eagle Cove Subdivision re Cash-in-Lieu-ofPark Reservation-Payment for park improvement within the Indian River/Elbow Road corridor e. $16,802from the Virginia Tobacco Settlement Foundation re "Too Good For Drugs" (TGFD) program to be administered by Parks and Recreation f $2,426 from the American Cancer Society to compensate Hampton Roads Transit (HRT) re shuttle service for the Relay for Life fundraiser Voting: 10-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf June 26, 2007 1 AN ORDINANCE TO APPROPRIATE $322,999 FROM 2 THE STATE COMPENSATION BOARD AND $235,479 3 FROM THE FUND BALANCE OF THE SHERIFF'S 4 DEPARTMENT SPECIAL REVENUE FUND TO THE 5 DEPARTMENT OF SHERIFF AND CORRECTIONS' 6 FY 2007-08 OPERATING BUDGET TO PROVIDE 7 FUNDING TO ADVANCE TO JULY 1, 2007 THE 4% 8 STATE PAY INCREASES FOR UNIFORMED 9 SHERIFF'S PERSONNEL 10 11 WHEREAS, the Sheriff has requested the use of Fund Balance from the Sheriff's 12 Department Special Revenue Fund to advance to July 1, 2007 the 4% pay raises for 13 uniform personnel granted by the State Compensation Board that is effective December 14 1,2007; 15 16 WHEREAS, this request qualifies for the use of fund balance because state 17 revenue provides the on-going support beginning in December 2007; 18 19 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 20 VIRGINIA BEACH, VIRGINIA: 21 22 1. That $322,999 is hereby accepted and appropriated from the State 23 Compensation Board to the Department of Sheriff and Corrections' FY 2007-08 24 Operating Budget to fund pay raises for Sheriff's employees, with state revenue 25 increased accordingly. 26 27 2. That $235,479 is hereby appropriated from the Fund Balance of the 28 Sheriff's Department Special Revenue Fund to the Department of Sheriff and 29 Corrections' FY 2007-08 Operating Budget to provide one-time funding to advance the 30 4% pay raises for uniform personnel to July 1, 2007, with local revenue increased 31 accordingly. 32 33 3. That $456,545 that has been set aside in a dedicated reserve in the 34 General Fund for pay increases is hereby transferred as needed to the Sheriff's 35 Department's Special Revenue Fund to the Department of Sheriff and Correction's FY 36 2007 -08 Operating Budget to fund the fringe benefit and increases to the salary 37 supplement portion of the pay increases for Sheriff's personnel. 38 39 Requires an affirmative vote by a majority of the members of the City Council. 40 41 Adopted by the Council of the City of Virginia Beach, Virginia on the ?6th day 42 of June , 2007. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: R~~ City Attorney's Offic CA 10438 R-2 June 14, 2007 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 AN ORDINANCE TO APPROPRIATE $300,000 IN EARNED REVENUE TO THE VIRGINIA AQUARIUM SPECIAL REVENUE FUND WHEREAS, revenues earned through Aquarium admissions, Aquarium stores and memberships are projected to exceed the budgeted appropriation. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That $300,000 in earned revenue is hereby appropriated to the Virginia Aquarium Special Revenue Fund with revenue from Charges for Services increased accordingly. Requires an affirmative vote by a majority of the members of the City Council. Adopted by the Council of the City of Virginia Beach, Virginia, on the 26th day of June ,2007. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: ~!P~ ~anage nt ervices R~ &== City Attorney's Ottic CA 10437 R-2 June 14, 2007 1 AN ORDINANCE TO ACCEPT AND APPROPRIATE 2 $29,983 FROM THE EAGLE COVE SUBDIVISION 3 DEVELOPMENT TO CAPITAL IMPROVEMENT 4 PROGRAM PROJECT 4-023, "NEIGHBORHOOD PARK 5 ACQUISITION AND DEVELOPMENT - PHASE II" 6 7 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 8 VIRGINIA: 9 10 That a $29,983 cash-in-lieu-of-park-reservation payment is hereby accepted from 11 the Eagle Cove Subdivision Development and appropriated to Capital Improvement 12 Program Project 4-023, "Neighborhood Park Acquisition and Development - Phase II" for 13 the purposes of improving neighborhood parks in the Indian River Road/Elbow Road 14 corridor, with revenue from the local sources increased accordingly in the FY 2006-07 15 Capital Improvement Budget. 16 Requires an affirmative vote by a majority of the members of the City Council. Adopted by the Council of the City of Virginia Beach, Virginia on the 26th day of June 2007. Approved as to Content: Approved as to Legal Sufficiency: ~~~ anagem t S rvices - ::e~~ r City Attorney's Office CA 10440 R-2 June 14, 2007 I , " I City Council Policy TItle Cash Payment In Lieu of Park Reservation Index Number 301 Date of Adoption I Date of RevIsion Page , of 2 , 0 Purpose end Need for Policies and Procedures Section 4 5 of the SubdlVlsron Ordinance, Public Sites and Open Spaces, has been used as the tool to acquire neighborhood parks and open space In developing areas Section 4 5 IS alsO a tool for acqUlflng senSitIVe environmental land It reqUIres the developer to reserve a parcel of land for open sp3ce and recreational purposes according to a formula based on lot sIze T"le City has the option of purchaSing thIS reserved land wlthm five years at current market value The following alternatives to reservation are currently available In the SubdiVISion Ordinance Dedication' Dedication of land at no cost to the City Dedlc3tlon IS one-half of reservatIon reqUirement specifIed In the SubdiVIsion Ordinance Other Arrangements' Other mutually agreeable arrangements approved by City Council which could Include a cash payment Homeowners' Anocl.tlon Establish a homeowners' aSSOCiation which would own the property and would constitute an equivalent recreational amenity As noted, Section 4 5 of the SubdiVIsion Ordinance allows for cash payments as an alternative to reservations Cash payments In heu of a reservation or dedication IS deSirable when the dedication requirement IS small (less than one acrel or due to an analYSIS of eXisting open space/recreation amenities 10 relation to standards based on population. It IS determined that additIOnal land IS not needed ThiS poliCY IS needed to claflfy the process and value for determining cash payments to ensure a conSIstent and equitable approach for cash payments. This poliCY tS Intended lIS . gl.Jld. fOl determining cash m lieu of reservations 01 dedications. The current subdiviSion oldlnBneB cannot 1eqUlre clIsh pllyment In lieu of 1eSfJrv.tlons or dfJd,c.tion.. Once receIVed. the cash payments are to be deSignated fer Imptovements wlthm the planning area of the developmg subdiVISion 2. 0 f.Q!.!fX Cash payments are tecommended as an acceptable alternative to dedication of open space area when the dedicatiOn reQullement IS such that the tesulttng park space would not be a useful amenity based on statistical crltefla and standards used for acquIsItion of r;atk space (generally less than one acrel All cash In heu of payments ate to be del ermined by the Clt y Real Estate Assessor and based on the dedication requirement multlphed by The assessed land value In the case where a property has a current land value and market value due to land use Taxation for qualifYing farm and reforested property. the market value wll' be used to determine the cash payment Cash payments Will be cue upon approval by City CounCil unless other arrangements are approved by City Councrl 3 0 Procedure to Accomplish Policy SubdiVISion plans are currently tevlewed for compliance With the SubdiVISion Ordinance as coordinated by the Planning Depanment Parks and Recreation reviews all subdIVISion plans requlfed to meet Section 4 5 of the SubdiVISion Ordinance The procedures and Dohcres are m place to determine Ihe reservation or dedlcallon requirement i'he assessed value of propenles IS determined by the City Assessor's Office I . 4 0 Responslbllitv and Authol'11Y The Duector of Parks and Recreation shall be responsible for coordinating the review process for cash payments. Representatives from the Department of Parks and Recreation. Public Works/Real Estate. City Assessor's Office. Department of Planning, and the City Attorney's Office ......'" review cash In heu of payments. The City Assessor's Office WIll determine the assessed land value The DlIector of Parks and RecreatIon Will reView the proposal for cash an heu dedlcatlon/reservatlon against the City's Outdoors Plan and attach a signed finding of conformlty/comphance with the Plan. 5 0 Definitions Dedication Requirement: Dehned In SectIon 4 5 of the SubdivISion Ordinance. The dedication requIrement 15 one half of the reservation reqUirement Assessed Value: Current monetary value of the property as determmed by the City Assessor's Office. 6 0 SpeCifIC ReqUirements All cash payments In lieu of park dedlcatlons are to be approved by City CounCil as IdentIfied an the SubdivISion Ordinance. Staff Will proVide statistIcal analYSIS, appraisal Information, calculation of the cash payment, and agreement from the developer A cash In lieu of form and agreement WIll be used In thIS process (see attachedl. These Items are to be Included In the Agenda Request for approval of the cash payment. Approved as to Content: ~tU- .J~ df/95" Date Darect or I Admlnlst rator , ReViewed by e,ly ~o~ J! ft/utl ~ L\~M- ih~, ~ [)l~~ Mayof J - :t-9J~ O'te f~'Q;v\~Q,O ~ I ~ 9 ~ Date J Approved as to Legal SuffiCiency: APPROVED BY CITY COUNCIL. dJ.j otJ J 75 Date - 9 0..... .6' . .. 5 ~~~ -...JUI", ~(/)UI o. S:7. :'1 " ,/ -- ->:;> ',- "'--'-,,- ;? /'-"" / ......",'- '... "... "'''... ., < , r='-==J! /'tl~i7N IF>>.., 't: : /0 j:l : jUt I fI ~ I. I Ii / :,j I JT1 )':t, "'--. h' / , '. II / . \ 1Io=-~__'===='X_=dl 1e", . ? I ." \ 700 ."l ~-""'U 0::;0 .0 JT10"'U ~::;oO JT1>(/) Z-fT1 -1~o " fT1 ..... P;oJ I c!j 'g: , UI-...J ~(It ~'I'l .~ \'Y . ~ ~~ ::ro~ .~... 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"');; <: :;;:.'O~:-",~ '1:J ''1 (..'1:J_",; '"" ' :1:: I ~i:: ~ ~ '-' ~- / 9,,, " / " ".... / "l / 1 AN ORDINANCE TO ACCEPT AND APPROPRIATE A 2 GRANT FROM THE VIRGINIA TOBACCO SETTLEMENT 3 FOUNDATION IN THE AMOUNT OF $16,802 TO THE 4 DEPARTMENT OF PARKS AND RECREATION'S FY2007-08 5 OPERATING BUDGET 6 7 THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA 8 BEACH, VIRGINIA: 9 10 (1) That a $16,802 grant is accepted from the Virginia Tobacco Settlement Fund 11 and appropriated to the Department of Parks and Recreation's FY 2007-08 Operating 12 Budget, with estimated State revenue increased accordingly. 13 14 (2) That a 0.5 FTE Prevention SpecialisUEducator and a 0.1 FTE clerical support 15 position are authorized for the period of the grant, July 1, 2007 - June 30,2008 and, that 16 these positions will be terminated at the end of the grant period. 17 18 Requires an affirmative vote by a majority of the members of the City Council. 19 20 Adopted by the Council of the City of Virginia Beach, Virginia, on the 26th day of 21 June, 2007. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: ~~~ Manage nt S rvices ~ ;:e~ City Attorney's Office J[--- CA 10443 R-2 June 14, 2007 VIRGINIA TOBACCO SE"rrLEMENT FOUNDATION May 23, 2007 Charles W. Meyer Chief Operating Officer City of Virginia Beach Youth Opportunities Office 2289 Lynnhaven Parkway Virginia Beach, VA 23456 Dear Mr. Meyer: Congratulations! Your application for VTSF program RFP #852P008 has been approved for funding for the grant term of July I, 2007 -June 30, 2008. Funding is being awarded in the amount of$16,802. Please mail two signed copies of the contract to my attention at the VTSF Richmond office (701 E. Franklin Street, Suite 501, Richmond, VA 23219). As soon as the contract copies are received, they will be reviewed for completeness. VTSF will then sign the contracts and return one original to you. Thank you for your interest in providing quality tobacco use prevention programs to the youth of the Commonwealth of Virginia. We look forward to working with you. 1 AN ORDINANCE TO APPROPRIATE $2,426 FROM THE 2 AMERICAN CANCER SOCIETY TO THE DEPARTMENT OF 3 PLANNING AND COMMUNITY DEVELOPMENT FY 2006-07 4 OPERATING BUDGET TO COMPENSATE THE HAMPTON 5 ROADS TRANSIT (HRT) FOR PROVIDING SHUTTLE 6 SERVICE TO THE AMERICAN CANCER SOCIETY ANNUAL 7 RELAY FOR LIFE FUNDRAISER 8 9 WHEREAS, the American Cancer Society held their annual Relay for Life fundraiser 10 on June 2nd and 3rd at Redwing Park; and 11 12 WHEREAS, Hampton Roads Transit (HRT) provided shuttle service for the event, at 13 a cost of $2,426; and 14 15 WHEREAS, HRT has billed the City for this expense, and the American Cancer 16 Society has agreed to reimburse the City for this cost. 17 18 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 19 VIRGINIA BEACH, VIRGINIA: 20 21 That $2,426 is hereby accepted and appropriated to the Department of Planning 22 and Community Development's FY 2006-07 Operating Budget to compensate the Hampton 23 Roads Transit for providing shuttle service to the American Cancer Society for their annual 24 Relay for Life fundraiser and that estimated revenue be adjusted accordingly. 25 26 Adopted the by the Council of the City of Virginia Beach, Virginia, 2..6t..h. day of 27 June , 2007. 28 29 Requires an affirmative vote by a majority of the members of the City Council. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: ~~lPC lVlanage ent Services CA 10439 R-2 June 14, 2007 May 23,2007 Travis Campbell Planner III Va. Beach Department of Planning Municipal Center, Building 2, Room 115 2405 Courthouse Drive Virginia Beach, V A 23456 Mr. Campbell, The American Cancer Society is committed to pay the sum of $2,425.92 to cover the cost of the HRT shuttle service for the Relay For Life on June 2 & 3. The schedule is as follows: Relay For Life of Virginia Beach Red Wing Park June 2 & 3 (Saturday & Sunday) Transportation is needed between Red Wing and the overflow parking lots of Geico & Lockheed Martin, off of Corporate Landing. Hours of transportation on Saturday are 11 :OOam to 11 :OOpm and Sunday from 7:00am to 12:00pm. Two buses would run on Saturday from II :OOam to 8:00pm. We appreciate the use of this service and we look forward to working with the HRT in the future. For any further questions or concerns please call Emily Simmons at 757.493.7954. Sincerely, Emily Simmons Emily Simmons Income Manager American Cancer Society 4416 Expressway Drive Virginia Beach, V A 23452 757-493-7954 (Phone) 757-493-9450 (Fax) - 41 - Item V-K.1. PLANNING ITEM #56581 1.a. HAC PROPERTIES, L.L.c. MODIFICATION OF Proffer No.3 (Approved: June 22, 2004) 1. b. NORMAL DIANE PAYNE HEWITT CONDITIONAL USE PERMIT t1aARGO OF TIDEWATER 2. CA VALIER GOLF & YACHT CLUB CONDITIONAL USE PERMIT 3. SOUTH INDEPENDENCE ACQUISITION, L.L.C. CONDITIONAL CHANGE OF ZONING June 26, 2007 - 42- Item V-K.1. a/b. PLANNING ITEM #56582 Attorney R. E. Bourdon, Pembroke Office Park - Building One, 281 Independence Boulevard, Phone: 499-8971, represented the application, concurred with request for Deferral to resolve issues re the electric-powered low speed vehicles (LSV) and the addition of retail for the entire office warehouse development. Upon motion by Council Lady Henley, seconded by Council Lady Wilson, City Council DEFERRED until the City Council Session of July 10, 2007, MODIFICATION of Proffer No.3 upon application of HAC PROPERTIES, LLC to allow low speed motor vehicle sales and an Ordinance upon application of NORMA DIANE PAYNE HEWIT tla ARGO OF TIDEWATER for a Conditional Use Permit for motor vehicle sales (low speed vehicles): StaJJwas requested to consider restricting allowances of these vehicles to areas where speed limits are 25 miles per hour or less, The property owner currently has an existing tenant that proposes to expand its product line from golf carts to include electric-powered low speed vehicles (LSV). The LSV is a four-wheeled, electrically- powered vehicle whose maximum speed is greater than 20 mph but less than 25 mph. The additional uses proposed for addition to Proffer 3 will permit future tenants to use the property ORDINANCE UPON APPLICATION OF HAC PROPERTIES, L.L.c. FOR A MODIFICATION OF PROFFERS FOR A REQUEST APPROVED BY CITY COUNCIL ON JUNE 22,2004. Ordinance upon application of HAC Properties, LLC. for a Modification of Proffers for a request approved by City Council on June 22, 2004. Property is located at 1763 Princess Anne Road (GPIN 2403916498). DISTRICT 7 - PRINCESS ANNE AND, ORDINANCE UPON APPLICATION OF NORMA DIANE PAYNE HEWETT TIA ARGO OF TIDEWATER FOR A CONDITIONAL USE PERMIT FOR MOTOR VEHICLE SALES (LOW SPEED VEHICLES) Ordinance upon application of Norma Diane Payne Hewett tla Argo of Tidewater for a Conditional Use Permit for motor vehicle sales (low speed vehicles) on property located at 1763 Princess Anne Road, Suites 101 and 102 (GPIN 2403916498). DISTRICT 7 -PRINCESS ANNE. June 26, 2007 - 43 - Item V-K.1. a/b. PLANNING ITEM #56582 (Continued) Voting: 10-0 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf June 26, 2007 - 44- Item V-K.2. PLANNING ITEM #56583 Correspondence of Attorney R. J. Nutter, Troutman Sanders LLP, dated June 18, 2007, requesting DEFERRAL until July 10, 2007, is hereby made a part of the record. Upon motion by Councilman Dyer, seconded by Council Lady Wilson, City Council DEFERRED until the City Council Session of July 10, 2007, Ordinance upon application of CAVALIER GOLF and YACHT CLUB for a Conditional Use Permit. re golf club Agronomy facility ORDINANCE UPON APPLICATION OF CAVALIER GOLF & YACHT CLUB FOR A CONDITIONAL USE PERMIT FOR A GOLF CLUB (MAINTENANCE FACILITY) Ordinance upon application of Cavalier Golf & Yacht Club for a Conditional Use Permit for a golf club (maintenance facility) on property located on the south side of Kamichi Court, approximately 300 feet east of Cardinal Road (GPIN 24184145480000). DISTRICT 5 - LYNNHAVEN Voting: 10-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf June 26, 2007 TROUTMAN SANDERS LLP ATTORNEYS AT LAW A liMITED LIABILITY PARTNERSHIP 222 Central Park Avenue Suite 2000 VIRGINIA BEACH, VIRGINIA 23462 www.troutmansanders.com TELEPHONE: 757-687-7500 FACSiMILE: 757-687-7510 R, J, Nutter, II rj,nutter@troutmansanders.com Direct Dial: 757-687-7502 Direct Fax: 757-687-1514 June 18, 2007 BY FACSIMILE 757/385-5669 Ruth Hodges Smith, CMC City Clerk City of Virginia Beach 2401 Courthouse Drive, Room 281 Virginia Beach, Virginia 23456 RE: Conditional Use Permit Application Cavalier Golf & Yacht Club Dear Mrs. Smith: I represent the Cavalier Golf & Yacht Club which has applied for a Conditional Use Permit to locate an Agronomy Center on the club's property off of Kamichi Court. Their application is currently scheduled to be heard by the Virginia Beach City Council on Tuesday, June 26, 2007. The purpose of this correspondence is to request a deferral of this application to the City Council's July 10,2007 meeting. I have conferred with Jim Wood, the District Council representative, who has no objection to the deferral and I have spoken to Kevin Martingayle, the attorney representing the oppositIon to this application, and he also has no objection. Thanking you for your kind consideration in this matter, I am cc: The Honorable James L. Wood Kevin E. Martingayle, Esquire ATLANTA. HONG KONG. LONDON. NEW YORK. NEWARK. NORFOLK. RALEIGH RICHMOND. SHANGHAI. TYSONS CORNER. VIRGINIA BEACH . WASHINGTON. D,C. - 45 - Item V-K.3 PLANNING ITEM #56584 The following registered in SUPPORT: Attorney R. J. Nutter, 222 Central Park Avenue, Phone: 687-7500, represented the applicant and advised this application, is currently zoned R-5D, is comprised of 133.8 acres. The property is surrounded by major arterials. Evaluation of the tax implications indicate this application would generate between $3-and $3-If2-MILLlON annually. 76% of this amount could be generated entirely by the non residential components of the property. The traffic study resulted in the applicants making a variety ofojfsite improvements in excess of$I-MILLlON The number of units has been reduced by one hundred (100) and one hundred (100) of the remaining units are dedicated to the age restricted community. The other concession was made to the retail area, resulting in an overall 11% traffic reduction. This project is a completely integrated mixed-use development. The applicant proposed a "right-in turn lane" only on Princess Anne Road. This purpose was to reduce traffic concerns. Steve Porter, Vice President - Administrator - Bayside Sentara Health Care, 6015 Poplar Hall Drive, stated this development will provide a wider array of housing options for employees at the new Princess Anne Health Campus The more than 60 workforce housing units will also appeal to the nurses and other health care workers. Quintin B. Bullock, Provost - Virginia Beach Campus, Tidewater Community College, 1700 College Crescent, Phone: 822-7212, spoke in favor on behalf of Dr. Deborah M DiCroce, President - Tidewater Community College. Dan Baxter, 2001 Drumheller Court, expressed appreciation for the introduction of this project earlier at the Town Hall meetings. Bill Dore, 4598 Broad Street, housing analyst and resident of the corridor for twenty-two (22) years Dr. David Konikojf, 2100 Lynnhaven Parkway #100, adjacent land owner spoke in favor Frank McKinney, Realtor - 4705 Chalford Drive, represented Empower Hampton Roads and Tim McCarthy, Chair - Housing Task Force. Mr. McKinney read into the record a letter of support from Empower Hampton Roads Attorney Don Clark, Williams Mullen - Town Center, Phone: 473-5301, has represented the Spence family for more than thirty (30) years. The government has taken a total of twelve (12) acres from The Spence family to create the road system that exists today. The Spence Family made a conscious decision to select L.M Sander for the purchase of their property. The family wished to be assured whoever developed this property did a "first rate" job. The following registered in OPPOSITION: Steve Kelley, President - Bellamy Plantation Civic League, 1945 Grey Friars Chase, Phone: 363-0336, submitted a Petition containing over six hundred (600) signatures in OPPOSITION Said petition is hereby made a part of the record Pierre Granger, President - Brigadoon Civic League, 1705 Tweed Circle, Phone; 651-6236, expressed concern re traffic Barry Ezell, Salem Woods, Phone: 544-4311, represented the Roads before Density Coalition and President - Salem Woods Civic Association June 26, 2007 - 46- Item V-K.3 PLANNING ITEM #56584 (Continued) Upon motion by Councilman Dyer, seconded by Councilman Villanueva, City Council ADOPTED an Ordinance upon application of SOUTH INDEPENDENCE ACQUISITION, L.L.C. for a Conditional Change of Zoning, "Spence Farm", re 103 singlejamily dwellings, 347 townhomes and 230 twin townhomes and Senior Housing ("Renaissance Park").: ORDINANCE UPON APPLICATION OF SOUTH INDEPENDENCE ACQUISITION, L.L.c. FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM R-5D AND R-10 TO CONDITIONAL A-36, CONDITIONAL B-4 AND CONDITIONAL A-12 WITH A PD-H2 OVERLAY Z06071283 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of South Independence Acquisition, L.L.c. for a Change of Zoning District Classification from R-5D and R-10 Residential Districts to Conditional A-36 Apartment District, Conditional B-4 Mixed Use District and Conditional A-12 Apartment District with a PD-H2 Overlay on property located on the southeast and southwest corners of South Independence Boulevard and Princess Anne Road and 1632 Salem Road "Spence Farm", (GPINs 1485050352; 1485251012; 1475856017). DISTRICT 1 - CENTERVILLE & DISTRICT 7 - PRINCESS ANNE The following condition shall be required: 1. An agreement encompassing proffers shall be recorded with the Clerk of the Circuit Court and is hereby made a part of the record. 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 Twenty-sixth of June Two Thousand Seven June 26, 2007 - 47 - Item V-K.3 PLANNING ITEM #56584 (Continued) Voting: 8-2 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Vice Mayor Louis R. Jones, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: Barbara M Henley and Reba S. McClanan Council Members Absent: Mayor Meyera E. Oberndorf June 26, 2007 City c>f Virgir1ia Beach VBgov.com LESLIE L. LILLEY CITY ATTORNEY MUNICIPAL CENTER BUILDING 1 2401 COURTHOUSE DRIVE VIRGINIA BEACH, VIRGINIA 23456-9004 (757) 385-4531 FAX (757) 385-5687 TOO (757) 385-4305 In Reply Please Refer to OP-07042 June 13,2007 Councilmember James L. Wood Virginia Beach City Council Municipal Center Virginia Beach, V A 23456 Re: Request for Conflict of Interests Act Opinion Dear Councilmember Wood: I am writing in response to your request for an opinion as to whether the State and Local Government Conflict oflnterest Act restricts your ability to participate in City Council's discussion of, and vote or votes on, a conditional zoning application of South Independence Acquisitions, L.L.C. SUMMARY CONCLUSION Because you do not have a "personal interest" in South Independence Acquisitions, L.L.C., and because it is not reasonably foreseeable that you or your business will realize a financial benefit or detriment as a result of City Council's consideration of this application, the Conflict of Interests Act provides that you may participate without restriction in Council's discussions and vote or votes on the application. My analysis is based on the facts you provided, which are detailed below. Please review and verify the accuracy of the facts. Because my analysis is fact-specific, you may only rely upon this opinion to the extent that these facts are complete and accurate. Councilmember Wood 2 June 13, 2007 FACTS PRESENTED JD& W, Inc. is a commercial general contracting firm that specializes in renovations, new construction, and design/build work. You are vice-president of JD&W, Inc., and you have an ownership interest in JD&W, Inc. that exceeds three percent of the corporation's total equity. Your mother, Dorothy Wood, is a member of the Planning Commission and is a board member of the Virginia Beach Performing Arts Center Foundation, Inc. ("Arts Center Foundation"). The Arts Center Foundation engages in fundraising to support the Sandler Center for the Performing Arts at Virginia Beach ("Sandler Center"), which is a City-owned performing arts facility. The Sandler Center is so named because Arthur B. and Steven C. Sandler donated $5 million for the center to be named in honor of their parents. Mrs. Wood is also the chair of the Virginia Beach Performing Arts Theatre Advisory Committee, which was created and appointed by City Council for the purpose of advising City Council regarding the Sandler Center. South Independence Acquisition, L.L.C. ("South Independence") has applied for a change of zoning district classification for a proposed development known as Renaissance Park. Arthur B. and Steven C. Sandler are members of the corporation, which is an affiliated business entity of 1.M. 1 Sandler & Sons, Inc. Attorney R.J. Nutter, a partner with the law firm of Troutman Sanders, is providing legal services with respect to the project. Joel Rubin of Rubin Communications Group has provided public relations services with respect to the project. Other service providers include Faggert & Friden, P.c., Equity Title Company, L.L.C., Looney Ricks Kiss, Engineering & Testing Service, Inc., Kimley-Horn & Associates, Rouse-Sirine Associated, Lt., Lewis Scully Gionet, Bryant B. Goodloe, P .C., and URS Corporation. Although JD&W, Inc. provides construction services and design/build work, JD&W, Inc. has not been retained to perform any work on the Renaissance Park proj ect, and South Independence has not expressed an interest in retaining JD&W, Inc. to work on the project. Neither you, your mother, nor any member of your immediate family have any ownership interest or option for an ownership interest in the land that is the site of the proposed project or adjoining land. Neither you, your mother, nor any member of your immediate family have an ownership interest or option for an ownership interest in South Independence, its affiliated business entities, or the businesses that are providing services to South Independence for the project. Finally, neither you, your mother, nor any I Additional affiliated business entities of South Independence with properties located in Virginia Beach are Equity Title Company, L.L.C., Greendale, L.L.C., SAS Investors, Sandler at Ashville Park, L.L.c., Sandler at Brenneman Farm, L.L.C., Sandler at Brown Farm, L.L.c., Sandler at Brown Farm II, L.L.c., Sandler at Lexington, L.L.C., Tate Terrace Realty Investors, Inc., Tidewater Mortgage Services, Inc., Tidewater Finance Company, Today Homes, Inc., Wedgewood Associates, L.L.c., and Westview Plaza Associates, L.P. Councilmember Wood 3 June 13,2007 member of your immediate family are employed by South Independence or its affiliated entities or the businesses that are providing project-related services. ISSUE PRESENTED Does the Conflict of Interests Act place any restrictions on your ability to participate in City Council's discussion of, and vote or votes on, the conditional zoning application of South Independence Acquisitions, L.L.C.? DISCUSSION/CONCLUSION The State and Local Government Conflict of Interests focuses on the financial interests of governmental officers and employees. The Act addresses "personal interests" of councilmembers. A personal interest in a business generally arises because an officer or immediate family member has an ownership interest in the business or is employed by the business. 2 You have a "personal interest" in JD& W, Inc. because of your ownership interest in the corporation. Past business relationships with service providers such as attorneys or architects does not cause an officer to have a "personal interest" in the service providers. Thus, even if you or JD& W, Inc. had employed one or more ofthe service providers listed above, that employment would not cause you to have a "personal interest" in those businesses. The Act provides that a councilmember will have a "personal interest in a transaction" if the councilmember or a member of his immediate family has a "personal interest" in a business or land that is the subject ofthe transaction or if it is reasonably foreseeable that a business or land in which he or an immediate family member has an interest may realize a reasonably foreseeable direct or indirect benefit or detriment as a result of the action by City Council on the transaction.3 Neither 2 "'Personal interest' means a financial benefit or liability accruing to an officer or employee or a member of his immediate family. Such interest shall exist by reason of (i) ownership in a business if the ownership interest exceeds three percent of the total equity of the business; (ii) annual income that exceeds, or may reasonably be anticipated to exceed, $10,000 from ownership in real or personal property or a business; (iii) salary, other compensation, fringe benefits, or benefits from the use of property or any combination thereof, paid or provided by a business or governmental agency that exceeds, or may reasonably be anticipated to exceed, $10,000 annually; (iv) ownership of real or personal property if the interest exceeds $10,000 in value and excluding ownership in a business, income, or salary, other compensation, fringe benefits or benefits from the use of property; (v) personal liability incurred or assumed on behalf of a business if the liability exceeds three percent of the asset value of the business; or (vi) an option for ownership ofa business or real or personal property if the ownership interest will consist of (i) or (iv) above." Va. Code 9 2.2-3101. 3 '" Personal interest in a transaction' means a personal interest of an officer or employee in any matter considered by his agency. Such personal interest exists when an officer or employee or a member of his immediate family has a personal interest in property or a business or governmental agency, or represents or provides services to any individual or business and such property, business or represented or served individual or business (i) is the subject of the transaction or (ii) may realize a reasonably foreseeable direct or indirect benefit or detriment as a result of the action of the agency considering the transaction. Notwithstanding the Councilmember Wood 4 June 13,2007 JD& W, Inc. nor any other business or land in which you or a member of your immediate family has an interest is the subject of the South Independence application. Thus, the pertinent question is whether JD & W, Inc. may realize a reasonably foreseeable benefit or detriment as a result of Council's consideration of South Independence's application. Because JD&W, Inc. has not been retained to provide any services with respect to the Renaissance Park project, and because South Independence has not even expressed an interest in retaining JD& W, Inc. in the future for the proj ect, it would be speculative to conclude that JD&W, Inc. may realize a financial benefit or detriment as a result of Council's vote. The Attorney General has concluded that in circumstances where the effect of a transaction is speculative, remote, or contingent upon factors beyond the officer's control, it is not reasonably foreseeable that the officer's personal interest will benefit or suffer as a result ofthe transaction.4 Because it is not reasonably foreseeable that JD&W, Inc. may realize a financial benefit or detriment Cl;s a result of Council's consideration of the application, you do not have a "personal interest in the transaction." Accordingly, the Act provides that you may participate without restriction in City Council's consideration of South Independence's application.s As a final note, the Conflict of Interests Act deals with the types of influences upon a public officer's judgment which are clearly improper. The law does not, however, protect against all above, such personal interest in a transaction shall not be deemed to exist where an elected member of a local governing body serves without remuneration as a member of the board of trustees of a not- for-profit entity and such elected member or member of his immediate family has no personal interest related to the not- for-profit entity." Va. Code S 2.2-3101. "Each officer and employee of any state or local governmental or advisory agency who has a personal interest in a transaction [s ]hall disqualify himself from participating in the transaction if (i) the transaction has application solely to property or a business or governmental agency in which he has a personal interest or a business that has a parent-subsidiary or affiliated business entity relationship with the business in which he has a personal interest or (ii) he is unable to participate pursuant to subdivision 2, 3 or 4. Any disqualification under the provisions ofthis subdivision shall be recorded in the public records of the officer's or employee's governmental or advisory agency. The officer or employee shall disclose his personal interest as required by S 2.2-3114 E or S 2.2-3115 E and shall not vote or in any manner act on behalf of his agency in the transaction. The officer or employee shall be prohibited from (i) attending any portion of a closed meeting authorized by the Virginia Freedom ofInformation Act (s 2.2-3700 et seq.) when the matter in which he has a personal interest is discussed and (ii) discussing the matter in which he has a personal interest with other governmental officers or employees at any time[.]" Va. Code S 2.2-3112(A)(1). (Subdivisions 2, 3, and 4 do not apply to the facts addressed by this opinion). 4 1986-87 Op. Va. Att'y Gen. 11. The test of reasonable foreseeability should be applied at the time of the transaction. !d. (discussing West v. Jones, 228 Va. 409, 323 S.E.2d 96 (1984)). 5 The fact that your mother serves as a member of the Planning Commission, the Council-appointed theater advisory board, and the board of directors of the Arts Center Foundation does not cause you to have a personal interest in this application. As noted above, she has no ownership interest in the applicant or its affiliated entities, nor is she employed by them. For the reasons outlined above, she also did not have a personal interest in the application when South Independence appeared before the Planning Commission. Councilmember Wood 5 June 13,2007 appearances of improper influence. In that respect, the Act places the burden on the individual officer to evaluate whether the facts presented create an appearance of impropriety which is unacceptable or which could affect the confidence of the public in the officer's ability to be impartial. Please contact me should you desire any additional information. Very truly yours, ~ Leslie L. Lilley City Attorney Seen and Concurred: ~~~~ e Harvey ryant, U Commonwealth's Attorney LLLlRRI ~................. r:~ \~;\A.:BfA~~ ~(\0 ',' ..,- C'.-y1, ..... \ ,'t'" ..,,' ,_ T ......' ,^.., r~ ,.:,,:..r.-- ~~~, ';-:... I'C "A?" ,. , ....' ::.'l ~. " . ,~- ,-,. --......,:01 1~i.:/I'- '~....~t:} (~i.:- ' ," .->, {: \ '.'~. ,,<; "..., .., ,.... ... . ~~.. 6; ~ J.... .~ -":.~..' 1.~ ~... ~ -_"09........ '.~ .../,/t.,../. ~' ", ,0. "," ~ <tS ~:~'::~:~.;-''''O,." r ""vR N"n ~ ~........ CITY OF VIRGINIA BEACH INTER-OFFICE CORRESPO~DENCE In Reply Refer To Our File No, DF-6628 DATE: June 13, 2007 FROM: Leslie L. Lilley r--, B. Kay Wilson&V DEPT: City Attorney TO: DEPT: City Attorney RE: Conditional Zoning Application: South Independence Acquisitions, LLC The above-referenced conditional zoning application is scheduled to be heard by the City Council on June 26.2007. I have reviewed the subject proffer agreement, dated May 31, 2007 and have determined it to be legally sufficient and in proper legal form. A copy of the agreement is attached. Please feel free to call me if you have any questions or wish to discuss this matter further. BKW/als Enclosure cc: Kathleen Hassen ../ Prepared B): Troutman Sanders LLP 222 Central Park A\'fnue. Suite 2000 Virginia Beach. V A 23462 AGREEME:\T THIS AGREE:\1E~T (the "Agreement'") is made as of the 31 ,( day of May. 1007, by and among SOUTH INDEPE~DENCE ACQLJISITON, L.L.C.. a Virginia limited liability company, and SOUTH INDEPENDENCE ACQUISITION II, L.L.c., a Virginia limited liability company (collectively, the "Grantor"), owner of that certain property located in the City of Virginia Beach more particularly described in Exhibit A attached hereto and incorporated herein by reference (the "Property"); and the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia (hereinafter referred to as the "Grantee"). WIT N E SSE T H: WHEREAS, the Grantor has initiated an amendment to the Zoning Map of the City of Virginia Beach, Virginia, by petition addressed to the Grantee, so as to change the classification of the Property from R-5D (Residential Duplex District) to Conditional A-12 (Apartment District) with a PD-H2 (Planned Unit Development District) overlay (j: 84.4 acres), Conditional B-4 (Mixed Use District) (2: 26.3 acres) and Conditional A-36 (Apartment District) (j: 23.1 acres); and WHEREAS, the Grantee's policy is to provide only for the orderly development of land for various purposes, including mixed-use purposes, through zoning and other land development legislation; and WHEREAS, the Grantor acknowledges that competing and sometimes incompatible uses conflict, and that in order to permit differing uses on and in the arca of the subject Propcrty and at thc same time to recognize the effects of change and the necd for various typcs of uses, certain rcasonable conditions governing the use of the Property for the protection of the community that are not generally applicable to land similarly zoned Conditional A-12 with a PD-H1 overlay. GPINs: 1475-85-6017-0000. 1485-05-0352-0000 and 1485-25-1012-0000 Conditional B-4 and Conditional :\-36 an: nt:~d~d to cop~ with the situation to \\hid1 the Grantor's raoning application giv~s rise: and WHEREAS, tht: Grantor has voluntarily proffaed in writing in advance of and prior to the public hearing before the Grantee. as part of the proposed conditional am~ndment to the Zoning Map. in addition to the regulations provided for in the existing A-12. PD-H2. B-4 and A-36 zoning districts by the existing City's Zoning Ordinance (CZO), the following reasonable conditions related to the physical development. operation and use of the Property to be adopted as a part of said amendment to the new Zoning Map relative to the Property, all of which have a reasonable relation to the rezoning and the need for which is generated by the rezoning; and WHEREAS, said conditions having been proffered by the Grantor and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, such conditions shall continue in full force and effect until a subsequent amendment changes the zoning on the Property covered by such conditions; provided, however, that such conditions shall continue despite a subsequent amendment if the subsequent amendment is part of the comprehensive implementation of a new or substantially revised zoning ordinance, unless, notwithstanding the foregoing, these conditions are amended or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and executed by the record owner of the subject Property at the time of recordation of such instrument; provided, further, that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of the ordinance or resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee advertised pursuant to the provisions of the Code of Virginia, Section 15.2-2204, which said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent. NOW THEREFORE, the Grantor, for itself. its successors. assigns. grantees. and other successors in title or interest, voluntarily and without any requirement by or exaction from the Grantee or its governing body and without any elem~nt of compulsion of quid pro qUO for zoning. rezoning. site plan. building permit or subdivision approval. hereby makes th~ following declaration of conditions and restrictions which shall restrict and govern the physical 2 dc\ dopment. operation and us~ l)f the Prop~rty and h~r~by co\~nants and agre~s that th~se proffers (collectin:1). the uprofti:rsU) shall constitute cownants running \vith the said Prop~rty. which shall be binding upon th~ Propcrty and upon all parties and pcrsons claiming under or through the Grantor. its hcirs. personal representatives. assigns. grantees and other successors in interc.:st or title. namely: I. In order to create a sense of place featuring storm water retention ponds as aesthetic amenities, community centers, multiple residential products along with commercial development, including a hotel, the Grantor agrees to develop the Property with the elements and character set forth on the Land Use Plan entitled, "CONCEPTUAL MASTER PLAN" (the "Plan"), prepared by LRK as depicted in the Renaissance Park Design Guidelines book (the "Design Guidelines"), dated November 28, 2006, last revised March 23, 2007. a copy of which is on file with the Department of Planning and has been exhibited to the City Council. 2. It is recognized that the detailed building plans, as well as the site plans for the various elements within a Village, may change as the planning stage progresses. The intent of the elevations referred to throughout this Agreement is to demonstrate the architectural style and quality 'of the buildings represented. The intent of the site plans referred to throughout this Agreement is to identify the elements that will be developed within each Village, though the actual siting, dimensions and orientation of those elements within a Village may change as final design dictates. Final elevations and locations for all of the structures shall be submitted to the Planning Director for review and approval prior to site plan approval. .., .) :\1l;L TI-F AMIL Y APART"tE:\T VILLAGE (CO~DITIO~AL A-36 ZO~I:\G DISTRICT) 3. The village depicted on the Plan as "Multi-Family Apartment Village" shall be developed as a multiple family residential apartment community. The residential dwdlings facing Princess Anne Road and South Independence Boulevard shall be developed with architectural features that are similar to those depicted on the architectural elevation entitled "MULTI-FAMILY APARTMENTS STREET FRONTAGE ELEVATION.', as shown in the Design Guidelines. The architectural features are to include brick veneer on the low level, picket railings on the balconies, horizontal lapped siding, and roofs with a 5 in 12 minimum slope. Any tour-story portions of the buildings are to be at least 100' from the adjoining residential property. The interior residential dwellings shall be developed with architectural features that are similar to those depicted on the architectural elevation entitled "MUL TI-F AMIL Y APARTMENTS FRONT ELEVATION - INTERIOR BUILDING", as shown in the Design Guidelines. Parking for the residential apartment community may include detached and/or attached garages, in addition to surface parking. 4. The Multi-Family Apartment Village shall include a community center with an exercise facility, a pool, a business office and surrounding open space. The community center building shall be developed with architectural features that are similar to those depicted on the architectural elevation entitled "MULTI-FAMIL Y APARTMENTS CLUBHOUSE ELEV A TION'" as shown in the Design Guidelines. 5. The total number of multi-family apartments to be developed on the Property zoned Conditional A-36 shall not exceed 400 units. 6. At the time each section or phase of the Multi-Family Apartment Village is developed. Grantor shall install a combination of landscaping and berming along Princess Anne Road and South Independence Boulevard. 4 RESIDE~TIAL VILLAGE (COl\DITIONAL A-12 WITH A PD-H2 OVERLAY) 7. The village depicted on the Plan as "Residential Village" shall be developed with a mix of residential products in a condominium regime with architectural features that are similar to those depicted on the architectural elevations entitled as "TWIN TO\\;NHOMES FRONT ELEVATION", "TWIN TOW1\1-IOMES SIDE ELEV ATIONS", "SINGLE FAMILY A TT ACHED ELEV A nON", and "SINGLE F AMIL Y DETACHED HOME ELEV A nONS.', as shown in the Design Guidelines. 8. The Residential Village shall include a community center with an exercise facility, a pool and surrounding open space. The community center building shall be developed with architectural features that are similar to those depicted on the architectural elevation entitled "RESIDENTIAL CLUBHOUSE ELEV A nON", as shown in the Design Guidelines. 9. The total combination of single-family detached, single-family attached and twin townhouses to be developed on the Property zoned Conditional A-12 with a PD-H2 overlay shall not exceed 680 units. 10. Grantor shall record a declaration of protective covenants, conditions and restrictions (the "Restrictions") governing all of the Property zoned Conditional A-12 with a PD- H2 overlay, which shall be administered and enforced by a mandatory homeowners association which will be responsible for maintaining all common areas including, but not limited to, the clubhouse, pool, open space areas, landscape buffers and stormwater retention ponds located within the Residential Village. 11. Grantor shall restrict at least one hundred (100) dwelling units within the Property for occupation, on a full time basis, by at least one adult resident of fifty-five (55) years of age or older. Such restriction shall also prohibit persons under twenty (20) years of age from residing in such units for more than one hundred and twenty (] 20) days in any calendar year. The age restrictions shall be contained in a Declaration of Restrictions recorded against the restricted units and shall be administered and enforced by the homeowners association. In the event the 5 appro\t~d site plan(s) for the Propert) pro\ide for less than 1080 dwelling units. Grantor shall be entitled to reduce the number of age-restricted units it reSCf\es by a number equal to the difference between 1080 units and the number of dwelling units pern1itted to be constructed in accordance with the approved site plan(s). 12. With respect to the areas shown on the Plan within the Residential Village as "Open Space" (the "Open Space Area"), Grantor shall file and obtain approval of a rezoning petition to rezone the Open Space Area to P-l (Preservation District), as defined in the CZO. prior to the date the first building permit in the Residential Village is issued. Such Open Space Area shall be subject to recorded restrictive covenants which prohibit the use of such areas for any purpose other than recreation and open space use. 13. Grantor shall provide for maintenance of the Open Space Area by the homeowners association, in which case all property owners within the Residential Village shall be responsible for the costs and expenses of such maintenance. 14. When developed, all single-family detached, single-family attached and twin townhouses within the Residential Village shall meet or exceed the setbacks and lot dimensions set forth on the page entitled "Design Criteria" in the Design Guidelines. 15. Grantor shall ensure that the addresses for units within the Residential Village that are located on alleys will have addresses located on the rear of the structure. 16. Grantor shall provide street trees along the streets within the Residential Village. In addition, Grantor shall provide ornamental trees throughout the Residential Village in those areas where space and conditions permit. The street trees will be selected from the City's list of recommended street trees and spaced accordingly. 17. At the time each section or phase of the Residential Village is developed, Grantor shall install a combination of landscaping and berming along South Independence Boulevard. Salem Road and Lynnhaven Parkway. 6 18. Grantor shall r~sa\e sixty-two (6~) dwdling units for work forl.:~ housing (as set forth bdow). Grantor shall work \\ ith the Directors of Planning and Housing and ~~ighborhood Pr~s~rvation to ~nsure the implementation of a program that r~seI\es such homes for sale to credit-worthy bu)ws having inl.:omes between 80% and 120% of area median household income. detem1ined using HCD-published tigures as adjusted for family size. for the year in which the home buyer is qualified to purchase. Such program shall provide: (a) that the Grantor shall distribute reserved dwelling units among credit-worthy buyers at all spectrums of the median household income range set forth above; (b) that sale of the reserved units shall result in a housing cost ratio for the qualified buyer that is acceptable to the Director of Housing; (c) for integration of those dwelling units reserved for qualified buyers throughout the townhouse and twin townhouse portions of the Residential Village (both in terms of location and in terms of time of sale); and (d) for reserved dwelling units that are physically indistinguishable on the exterior from other dwelling units of the same type and size. COMMERCIAL VILLAGE (CONDITIONAL B-4) 19. The Commercial Village depicted on the Plan shall be developed as a pedestrian friendly commercial center having retail space, office space. anchor tenants and a hotel. The Commercial Village shall be developed in the character of a "'main street" retail and commercial concept, though the final siting, dimensions and orientation of the buildings, drive aisles and parking areas may differ from that reflected in the Plan depicted in the Design Guidelines. 20. The buildings within the Commercial Village on the Plan shall use multiple building articulations, and a variety of building materials, finishes and colors. The buildings shall be of a quality and of a similar architectural character as those reflected in the photographs entitled "SHOPS A:\D OFFICE ARCHITECTURAL CHARACTER" as shown in the Design Guidelines. 7 21. Outpanxl buildings. as m~lI as tht.: hotel. shall b~ d~\dop~d usmg building d~signs and archit~ctural mat~rials substantially similar to and compatibl~ with th~ d~signs and materials stated in proffer 20 above. II The Commercial Village shall voluntarily comply with the following sections of the CZO pertaining to design standards for retail establishments and shopping centers: Sections 245(a)(2), 245(a)(3), 245(a)(4), 245(b)(1). 245(c)(1). 245(c)(2), 245(c)(3). 246(d)(5). 247(c). 247(d), 247(e) and 248(a). 23. Monument signs identifying the Commercial Village shall be located along Princess Anne Road and South Independence Boulevard in the locations shown on the Plan in the Design Guidelines. 24. Signs containing movmg or scrolling text shall be prohibited within the Commercial Village. 25. The service and/or loading areas of the shops, offices and anchor buildings shown on the Plan shall be painted neutral, earth tone colors and shall be screened from the view from public rights-of-way and/or residentially zoned property as depicted on the drawings entitled "SERVICE AREA SCREENING" as shown in the Design Guidelines. 26. All dumpsters shall be enclosed on at least three sides and screened as required by the CZO. Dumpster locations shall be depicted on the final site plan. 27. All site lighting installed along any portion of a building in the Commercial Village facing an adjoining residential use and all site lighting installed in a parking area adjoining a residential use shall be directed away from the adjoining residential neighborhood and shall be downward directed and shielded to minimize light seepage into the adjoining residential neighborhood. 28. At the time each section or phase of the Commercial Village is developed. Grantor shall install a landscaped berm. consisting of a continuous hedge row and staggcrcd 8 trt:\?s. of at It:ast 30' in width along Princt:ss Ann~ Road and at It:ast 15' in \\ idth along South Indt:pcndence Boulevard. 29. The Grantor shall construct a pedestrian connection to provide pedestrian access between the hotel and the "main street"" feature of the Commercial Village. 30. One right in only turn lane from Princess Anne Road into the Commercial Village shall be permitted. Such turn lane shall be constructed in accordance with City standards. 31. Grantor shall comply with the recommendations for roadway improvements listed as Recommendations 1 through 7 in Chapter 7 of the Traffic Impact Analysis (the '"TIN') prepared by Bryant B. Goodloe, P.C., last revised February 26,2007, a copy of which is on file with the Department of Public Works, Traffic Engineering Division, and has been reviewed and approved by the Department of Planning and the Department of Public Works. 32. The TIA projects that the proposed development on the Property as submitted by Grantor to the Department of Planning on December 1, 2006, will generate 21,212 total vehicle trips per day. Grantor agrees to modify the intensity of the development on the Property from the level submitted by Grantor on December I, 2006, such that the total vehicle trips per day generated from the development of the Property is no more than 18,879 total vehicle trips per day. With each site plan submitted for any portion of the Property, Grantor shall submit a supplemental traffic projection prepared by a professional traffic engineer containing a comparison of the traffic generation set forth in the TIA as compared to the proposed level of development in the submitted site plan to ensure that the site plan complies with the above- referenced reductions. Prior to approval of the site plan, the Planning Director shall review and approve the supplemental traffic projection in accordance with this paragraph. 9 33. Grantor shall install a pull in/pull out bus stop for public transportation with cown.:d shelter on the Property at a location to be determined during site plan n:view. 34. Further conditions lawfully imposed by applicable development ordinances may be required by the Grantee during detailed site plan and/or subdivision review and administration of applicable City Codes by all cognizant City agencies and departments to meet all applicable City Code requirements. All references hereinabove to zoning districts and to regulations applicable thereto, refer to the CZO of the City of Virginia Beach, Virginia, in force as of the date the conditional zoning amendment is approved by the Grantee. The Grantor covenants and agrees that (I) the Zoning Administrator of the City of Virginia Beach, Virginia shall be vested with all necessary authority on behalf of the governing body of the City of Virginia Beach, Virginia to administer and enforce the foregoing conditions, including (i) the ordering in writing of the remedying of any noncompliance with such conditions, and (ii) the bringing of legal action or suit to ensure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages or other appropriate action, suit or proceedings; (2) the failure to meet all conditions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) if aggrieved by any decision of the Zoning Administrator made pursuant to the provisions of the City Code, the CZO or this Agreement. the Grantor shall petition the governing body for the review thereof prior to instituting proceedings in court; and (4) the Zoning Map shall show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the subject 10 Propl.:rty on the map and that the ordinance and the conditions may be made readily a\ailable and accessible for public inspection in the office of the Zoning Administrator and in the Department of Planning and that they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and indexed in the name of the Grantor and Grantee. This Agreement may be signed in one or more counterparts, which, upon execution by all the parties, shall constitute a single agreement. IN WITNESS WHEREOF, the undersigned Grantor executes this Agreement as of the date first written above. GRANTOR: SOUTH INDEPENDENCE ACQUISITION, L.L.C., a Virginia limited liability company By: ~ Nathan D. Benson, Manager COMMONWEAL TH OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was sworn to and acknowledged before me this J-.L day of , " , 2007, by Nathan D. Benson, in his capacity as Manager of South Independence Acquisition, L.L.C., a Virginia limited liability company, on behalf of the company. My Commission Expires: / r , / '. .1 I''>'. I' ,'II'.':.~ . '~',A Notary Public . .~\\\\\\\lUm1/I.'h ~'j' ""'AJ ..,., qb.... I~i;{~? I [ OF ~~ ,,\.... ~ .....: ~.....~ ~,,\\\\\~ 11 IN WITNESS WHEREOF. the undersigned Grantor executes this Agreement as of the date first written above. GRANTOR: SOUTH INDEPENDENCE ACQUISITION II. L.L.c.. a Virginia limited liability company ~ COMMONWEALTH OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: _', The foregoing instrument was sworn to and acknowledged before me this .l.l.- day of ~ 'v . '. '- , 2007, by Nathan D. Benson, in his capacity as Manager of South Independence Acquisition II, L.L.C., a Virginia limited liability company, on behalf of the company. ',----,';: / ' OJ I I . /1-.'.' '. ; . C" <./'\A Notary Public' / ~, , I / G.. ,. / L', ~,(/ My Commission Expires: l -', ') / I l 327985,4 ~\\\Umf~!/1I!6' ~ ~p..J. Jr, '. ~ 'r~ .....~.';'D..\ v... .,.j~.:J .. -y~.. . . . . . . . . : aF : ~ . . ~ ~ .. ;:.. . . . .... ~{~ II ~.....~, ~n"\\\~ 12 EXHIBIT A Lee:al Description PARCEL ONE: ALL THAT certain tract or parcel of land, located in the City of Virginia Beach, (formerly the COllnty of Princess Anne, in the Kempsville District) in the State of Virginia, of which John C. Spence died seized and possessed, consisting of one hundred thirty-three (133) acres, more or less, but by survey of October 1909, contains 21 0.7 acres and bounded as follows: On the North by the lands of T. J. Kiff; on the East by the lands of Griffin Hewitt, deceased; on the South by the lands of John R. Fentress; and on the West by the North Landing Road. LESS, SAVE AND EXCEPT, however, the following parcels: (i) that certain parcel ofland comprised of 3.15 acres, more or less, taken by the Commonwealth of Virginia by instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 154 at page 471; (ii) that certain parcel of land comprised of .79 acres, more or less, conveyed to Luther Foxwell, et ux, by instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 248 at page 466; (iii) that certain parcel of land comprised of 64.848 acres, more or less, conveyed to W & F Investment Corporation by instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 732 at page 592; (iv) that certain parcel of land comprised of 1.035 acres, more or less, conveyed to William L. Spence, Jr. by instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 1196 at page 718; (v) that certain parcel of land comprised of 1.609 acres, more or less, taken by the City of Virginia Beach by instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 2823 at page 1318; (vi) that certain parcel of land comprised of 2.502 acres, more or less, taken by the Commonwealth Transportation Commission by instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 2867 at page 754; (vii) that certain parcel of land comprised of 3.98 acres, more or less, taken by the City of Virginia Beach by instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 2923 at page 110; (viii) that certain parcel of land comprised of .00 I acres, more or less, taken by the Commonwealth Transportation Commission by instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 3163 at page 1763; (ix) that certain parcel ofland comprised of 1.797 acres, more or less, taken by the City of Virginia Beach by instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 3778 at page 589; and (x) that certain parcel of I land comprised of 1.1435 acres, more or less, conveyed to William L. Spence. III, by instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach. Virginia, as Instrument number 200404070055145. IT BEING a portion of the same property conveyed to Spence Family Farm, L.P. by deed dated December 26, 1985 from William L. Spence and Kathleen P. Spence. husband and wife, and 13 recorded in the Ckrk's Office of the Cin:uit Court of the City of Virginia Beach. Virginia. in Deed Book 2467 at page 2021. PARCEL TWO: ALL THAT certain lot. piece or parcel of land. with the buildings and improvements thereon, and the appurtenances thereunto belonging, situate. lying and being in the City of Virginia Beach, Virginia, and being known and designated as "PARCEL A HOMESITE: as shown on the plat entitled, "Subdivision of Property of Spence Family Farm, L.P., Virginia Beach, Virginia:, dated July 12, 2000, prepared by W. P. Large, Inc. and recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach. Virginia in Map Book 291 at page 72. IT BEING the same property conveyed to William L. Spence, III, by Deed of Distribution dated March 12, 2004 from Linda Spence Widgeon, Successor Trustee under the revocable trust agreement creating THE KATHLEEN PETREE SPENCE REVOCABLE TRUST DATED OCTOBER 30, 1997, and recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, as Instrument number 200404070055145. 14 - 48 - Item V-L.l. APPOINTMENTS ITEM #56585 Upon NOMINATION by Council Lady McClanan, City Council APPOINTED: Bruce W. Drees 3 Years 07/01/07 - 06/30/10 BIKEWAYS & TRAILS COMMITTEE - Voting: 10-0 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf June 26, 2007 - 49- Item V-L.2. APPOINTMENTS ITEM #56586 Upon NOMINATION by Council Lady McClanan, City Council APPOINTED: E. Ray Cox, Jr. Unexpired thru 3/31/08 plus - 3 yrs 4/1/08 -3/31/11 HUMAN RIGHTS COMMISSION Voting: 10-0 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf June 26, 2007 - 50 - Item V-L.3. APPOINTMENTS ITEM #56587 Upon NOMINATION by Council Lady McClanan, City Council APPOINTED: Jeremy C. Johnson Unexpired thru 05/31/10 OPEN SPACE ADVISORY COMMISSION Voting: 10-0 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf June 26, 2007 - 51 - tem V-L.4.. APPOINTMENTS ITEM #56588 Upon NOMINATION by Council Lady McClanan, City Council APPOINTED: Richard A. Alagaban Unexpired thru 8/31/08 Angela Scott Kellam Unexpired thru 8/31/09 Kim Thummel 3 yrs - 9/1/07 - 8/31/10 OPEN SPACE ADVISORY COMMISSION Voting: 10-0 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Mayor Meyera E. Oberndorf June 26, 2007 - 52 - Item V-O. ADJOURNMENT ITEM # 56589 Vice Mayor Louis R. Jones DECLARED the City Council Meeting ADJOURNED at 7:35 P.M. a~___~:__~_~~ Beverrrh Hooks, CMC Chief Deputy City Clerk Louis R. Jones Vice Mayor th Hodges Fraser, MMC City Clerk Meyera E. Oberndorf Mayor City of Virginia Beach Virginia June 26, 2007