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JULY 10, 2007 MINUTES CITY OF VIRGINIA BEACH "COMMUNITY FOR A LIFETIME" CITY COUNCIL MAYOR MEYERA E. OBERNDORF, At-Large VICE MAYOR LOUIS R. JONES, Bays/de - District 4 WILLIAM R. DeSTEPH, At-Large HARRY E. DIEZEL, 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 D/strlct 6 RON A. VILLANUEVA, At-Large ROSEMARY WILSON, At-Large JAMES 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 CITY MANAGER - JAMES K. SPORE CITY ATTORNEY - LESLIE L. LILLEY CITY CLERK - RUTH HODGES FRASER, MMC 10 JULY 2007 I. CITY COUNCIL BRIEFINGS - Conference Room - 1 :00 PM A. HR T UNIVERSAL SHUTTLE Michael Townes, President and CEO, Hampton Roads Transit Gene Cavasos, Director of Marketing, Hampton Roads Transit B. SANDLER (Performing Arts) CENTER Patricia Phillips, Director - Finance Dorothy L. Wood, Chair, Performing Arts Committee Lynwood Branch, President, Virginia Beach Performing Arts Center Foundation II. CITY MANAGER BRIEFINGS A. WORKFORCE HOUSING PROGRAM Andrew Friedman, Director - Housing and Neighborhood Preservation Bill Macali, Deputy City Attorney B. LEROY DRIVE MASTER PLAN David L. Hansen, Chief of Finance and Technology III. CITY COUNCIL LIAISON REPORTS III. CITY COUNCIL COMMENTS IV. REVIEW OF AGENDA IV. INFORMAL SESSION - Conference Room - 4:00 PM A. CALL TO ORDER - Mayor Meyera E. Oberndorf B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION V. FORMAL SESSION - Council Chamber - 6:00 PM A. CALL TO ORDER - Mayor Meyera E. Oberndorf B. INVOCATION: Reverend Jim Hundley Pastor, Salem United Methodist Church C. PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA D. ELECTRONIC ROLL CALL OF CITY COUNCIL E. CERTIFICATION OF CLOSED SESSION F. MINUTES 1. INFORMAL and FORMAL SESSIONS June 26, 2007 G. AGENDA FOR FORMAL SESSION H. PUBLIC HEARING 1. BYRNE MEMORIAL JUSTICE ASSISTANCE GRANT 2. LEASE OF CITY PROPERTY - 2293 Lynnhaven Parkway Tidewater Regional Group Home Commission (TRGHC) I. PUBLIC BRIEFING 1. TOWN CENTER PHASE III and Property Exchange Alexander Stiles, Associate City Attorney J. CONSENT AGENDA K. ORDINANCES/RESOLUTIONS 1. Ordinance to AMEND Chapter 2, Article XVI of the City Code, AMEND 92-382 and REPEAL 92-387 re anachronisms in the composition of the Planning Department. 2. Ordinance to AUTHORIZE the City Manager to execute a lease of City-owned property at 2293 Lynnhaven Parkway for the term of one (1) year with Tidewater Regional Group Home Commission (TRGHC), to be used as residential housing for juvenile offenders through a transitional living program. 3. Ordinance to ACCEPT a dedication of property from the Lynnhaven-Little Neck Civic League, Inc., at 586 North Lynnhaven Road and AUTHORIZE the City Manager to execute all related documents. 4. Ordinance to ACCEPT and APPROPRIATE $300,000 from the Virginia Beach Performing Arts Center Foundation to the Sandler Center for the Performing Arts at Virginia Beach project re a free-standing sign. 5. Resolution to AUTHORIZE the City Manager to execute a renewed and restated Operating agreement with the Virginia Beach Performing Arts Center Foundation, Inc. 6. Resolution to AUTHORIZE and DIRECT the City Manager to initiate a process to receive bids for the lease of Lynnhaven City Marina. 7. Resolution to RECEIVE the recommendations of the Employee Benefits Review Task Force for consideration and EXTEND the term of the Task Force. 8. Resolution to ESTABLISH the Transportation Authority Committee re a systematic review of the implementation of the provisions of the Hampton Roads Transportation Authority Act. L. PLANNING 1. Variance to S4.4(d) of the Subdivision Ordinance that requires all newly created lots meet the requirements of the City Zoning Ordinance (CZO) as related to lot width for V AN GIANG at 972 Whitehurst Landing Road re the creation of a flag lot designed for a single-family dwelling. DISTRICT 2 - KEMPSVILLE 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 DEFERRED RECOMMENDATION June 26, 2007 APPROVAL 3. Application ofB'NAI ISRAEL for a Conditional Use Permit (approved by City Council on May 29, 1990, and superseded for a church on March 2, 2005) at 620 Baker Road re a commercial recreation facility (bingo hall). DISTRICT 2 - KEMPSVILLE RECOMMENDATION APPROV AL 4. Application of SHORE DRIVE P ARASAILING, INC., for a Conditional Use Permit at 3311 Shore Drive re an outdoor recreational facility (parasailing). DISTRICT 5 - L YNNHA VEN RECOMMENDATION APPROV AL 5. Applications at 1763 Princess Anne Road: DISTRICT 7 - PRINCESS ANNE a. HAC PROPERTIES for a 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 DEFERRED RECOMMENDATION June 26, 2007 APPROV AL 6. Application of BROWN BUILDING CORPORATION for a Modification of Proffers for a conditional rezoning request (approved by City Council on July 13, 1993, and modified on June 13,2000, November 14,2000, and February 11,2003) at 4847 Dolton Drive to allow a childcare facility. DISTRICT 2 - KEMPSVILLE RECOMMENDATION APPROV AL 7. Application of AGC ACQUISITION, L.L.C. for a Chanze ofZoninz District Classification from AG-2 Agricultural District to Conditional B-4 Mixed Use District at 1291 Nimmo Parkway re a retail building and 99 multi-family dwellings. DISTRICT 7 - PRINCESS ANNE RECOMMENDATION APPROVAL M. APPOINTMENTS BOARD OF ZONING APPEALS COMMUNITY MEDICAL ADVISORY COMMISSION DEVELOPMENT AUTHORITY (VBDA) PARKS AND RECREATION COMMISSION PUBLIC LIBRARY BOARD REVIEW AND ALLOCATION COMMITTEE - COG N. UNFINISHED BUSINESS O. NEW BUSINESS P. 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 SwrmwarerPfunsandFundmg CITY COUNCIL SUMMER SCHEDULE August 7 Cancelled August 14 August 21 Briefings, Informal, Formal, including Planning items Briefings, Informal, Formal August 28 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 Hearing impaired, call: Virginia Relay Center at 1-800-828-1120 * * * * * * * * * * * Agenda 07/02/2007mb www.vbgov.com - 1 - MINUTES VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia July 10, 2007 Mayor Meyera E. Oberndorf called to order the City Council Briefing re HRT UNIVERSAL SHUTTLE in the City Council Conference Room, City Hall, on Tuesday, July 10,2007, 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, Mayor Meyera E. Oberndorf John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Absent: Robert M Dyer [Absent due to Illness) July 10, 2007 - 2 - CITY COUNCIL BRIEFING HRT UNIVERSAL SHUTTLE 1:00 P.M. ITEM # 56590 Mayor Oberndorf advised that on Friday, July 6, 2007, Governor Kaine dedicated this Shuttle bus in Portsmouth to a "loop" system. Michael Townes, President and Chief Executive Officer - Hampton Roads Transit, reminded City Council on Sunday, July 15, 2007, an event entitled "Thinking beyond the Station, Creating Great Places around Transit", directed by reconnecting America (a think tank on transit limited and sustainable development) will be held at Waterside (11 :30 A.M - 4:30 P.M). At 12:30 P.M, a Panel discussion will be conducted. Mr. Townes expressed appreciation to Council Lady Henley, as she will be one of the presenters on this Panel. Mr. Townes referenced the concept of the Universal Shuttle, which will benefi all the partners of Hampton Roads Transit (HRT). Mr. Townes introduced Gene Cavasos, Director of Marketing, and recognized David Sullivan - Vice President, Technology, Hampton Roads Transit. Mr. Cavasos advised HRT currently operates several shuttle systems throughout Hampton Roads: Virginia Beach Wave Norfolk NET Portsmouth Loop (currently on order) Newport News Shuttle Currently there are thirty-two (32) VB Wave trolleys: sixteen (16) Oceanfront and sixteen (16) divided between the Aquarium Marine Science Museum and the Shoppers Express. These are medium duty vehicles with an average age of twelve and one-half years (spanning in age between eight (8) to twenty- three (23) years). However, their life expectancy is seven (7) years. The Norfolk NET is a medium duty battery bus and is comprised of eight (8)( pushing nine (9) years old) with also a life expectancy of seven (7) years. The Portsmouth Loop is a hybrid bus, twenty-nine (29)-foot low floor, with a twelve (12) year life expectancy. Very similar are the two (2) Newport News Shuttle clean diesel buses which are approximately one (1) year old and have a twelve (12) year life expectancy. The Challenges Four (4) separate services Four (4) separate types of vehicles Four (4) separate identities Four (4) disconnected shuttle services Oftheforty-four (44) vehicles,forty (40) have exceeded their life expectancy. The Virginia Beach Trolley has been a charming novelty to the Virginia Beach oceanfront for years. The Oceanfront is constantly improving its look and architecture. With these changes, the "Old World" charm of the trolley is ready to make way for a more modern, efficient and environmentally friendly, stylish mode of transportation. HRT wished to present the opportunity of the Universal Shuttle (modern Hybrid bus, twenty-nine (29)- foot low floor with a unique color scheme separate from the HRT fleet, while still allowing each of the individual Shuttle systems to have their own identity. The system would also be accompanied with signage, as well as printing to make all aware of its identity as a shuttle service. July 10,2007 - 3 - CITY COUNCIL BRIEFING HRT UNIVERSAL SHUTTLE ITEM # 56590 (Continued) Mr. Cavasos stressed the benefits: Modern universal design Unique individual identification Enhanced services Low floor buses Wheelchair accessible Bike racks on entire fleet Ease of use throughout the region Cost Savings $2-MILLION capital savings by reducing the overall size of the fleet $40,000 savings per facility in additional training Cost savings in route schedule printing, route signs and regional participation in marketing campaigns Up to $125,000 savings in parts inventory Lower maintenance and repair costs $5-MILLION is available in Federal Grant funds. These funds, coupled with the $6.1-MILLION State- wide Grant available for the replacement of the NET buses, plus Portsmouth has an additional $2- MILLION in SEMAC grants that will purchase the two (2) Hybrid buses for their service, totals $13.1 MILLION available which basically gives HRT the ability to replace up to twenty jour (24) Hybrid buses. Summary Lower overall costs Regional service improvement and support Universal design Maintain individual identity Streamline enhanced services Federal grant participation HRT will be responsible for future replacement of all shuttles. Council Lady McClanan is concerned re Virginia Beach maintaining their identity and expressed concern re advertising on buses and "tinted" windows. Virginia Beach has more at stake being the largest municipality in the Region. Mr. Townes advised HRT is comprised of seventeen (17) members. Virginia Beach has two (2) votes. Council Lady McClanan understands the trolleys have to be replaced, but many feel this trolley type vehicle has a lot of history and tradition. Council Lady McClanan requested specific costs be enumerated re reducing present HRT fleets. Mr. . Cavasos noted Virginia Beach has slightly over $800,000 to replace the trolleys which will not have to be expended as HRTwill be able to use $5-MILLlON of the federal grant funds. July 10, 2007 - 4 - CITY COUNCIL BRIEFING HRT UNIVERSAL SHUTTLE ITEM # 56590 (Continued) Council Members Uhrin and Wood represent the City as Members of the Hampton Roads Transportation Commission. Council Member Uhrin expressed appreciation to President Townes and Mr. Cavasos for notification of funding re replacement of an aged trolley fleet. The trolleys are not an acceptable form of transportation for moving Convention attendees. This acceptance relates to interior comfort and level boarding of this shuttle. As this is universal shuttle system, HRT has assured there will be opportunities in the future to pull from other localities, if necessary, to run additional routing in the Resort Area. Councilman Wood advised fuel savings are very important. HRT does not pay a tax on its fuel. The Virginia Beach Hotel/Motel Association and the Resort Advisory Commission have endorsed the concept of the Universal Shuttle. President Townes hopes Virginia Beach would leave the $800,000 (for replacement in the trolleys) in the budget, allowing for the purchase of the twenty-four (24) hybrid buses, rather than twenty-two (22). When the service is regionalized, HRT assumes the responsibility re replacement of the vehicles. These vehicles will have no exterior advertisements, only interior. Councilman Uhrin believes a small portion of these funds is being considered for the utilization of symbolic oversized surf boards on the top of the Shuttle for the Sixteen (16) Oceanfront Shuttles only. Uniqueness is desired. Relative the $10-MILLION the General Assembly allocated for the Bus Rapid Transit, Mr. Townes advised HRT has worked closely with the City of Virginia Beach staff. These funds have been reprogrammed and are available to the City for the acquisition of the right-of-way. Relative the $800,000, Councilman Wood believes it is important to enhance services. Typically issues arise concerning the handi-ride and transit connections. Councilman Villanueva concurred and referenced the need for bus shelters. A Resolution to ENDORSE participation with the Hampton Roads Transportation District Commission (HRTDC) re upgrade and replacement of the VB Wave Trolleys shall be SCHEDULED for the City Council Session of July 17, 2007. July 10, 2007 - 5 - CITY COUNCIL BRIEFING SANDLER (Performing Arts) CENTER 2:00 P.M. ITEM # 56591 Patricia Phillips, Director of Finance, advised the members of the Virginia Beach Center for the Performing Arts Foundation will be in attendance to provide information relative the Theater. In 2001, the idea for a Performing Arts Center Theatre was first conceived. The project was initiated with $35- MILIaN from the major project funding stream (hotel/meal and cigarette tax increases implemented). An additional $11. 7-MILLION was to be raised by other sources primarily through the private sector. Mrs. Phillips advised the Project Status: November 2004: Design-Build Team chosen using the (PPEA) Public Private Education Facilities and Infrastructure Act of 2002 May 2005: Groundbreaking November 2007: Grand Opening Mrs. Phillips introduced Linwood Branch, IlL President, and Dorothy Wood, Vice President - Virginia Beach Center for the Performing Arts Center Foundation as well as Emily Spruill, Director of Cultural Affairs, City of Virginia Beach. Dorothy Wood advised a Resolution establishing Virginia Beach Performing Arts Theatre Advisory Committee was ADOPTED by City Council on February 4, 2003. Mrs. Wood expressed appreciation to Emily Spruill for her dedicated service, her efficiency and organizational abilities. Mrs. Wood introduced with pride, Linwood Branch, President - Virginia Beach Center for the Performing Arts Foundation. Mr. Branch referenced the success of the Virginia Beach Center for the Performing Arts Foundation: Foundation formed in Spring 2005 and granted 501 (c) 3 non-profit status Memorandum of Understanding between City and Foundation approved in July 2005 $5-MILLION lead gift receivedfrom the Sandler Family September 1,2005 $l-MILLION giftfrom Jerry Miller to name Studio Theatre/Rehearsal Hall Numerous six-figure gifts: particularly noteworthy from Armada Hoffler, The Virginian-Pilot, Wayne and Cheryl McClesky, Gail Levine Higgs, William E. Wood and Family and Julia Riddle. Total gifts to date: $13.1-MILLION Capital Campaign reaches initial goal- five (5) months before opening Foundation to fund additional capital expenses - Plaza Marquee Embark on "Act Two" Endowment Campaign Extension of Memorandum of Understanding between the City and Foundation July 10, 2007 - 6 - CITY COUNCIL BRIEFING SANDLER (Performing Arts) CENTER ITEM # 56591 (Continued) Mr. Branch advised the loan originally granted by City Council and the public artwork for the Center will be repaid. Mr. Branch referenced the Ordinances scheduledfor the Formal Session: Ordinance to ACCEPT and APPROPRIATE $300,000 from the Virginia Beach Performing Arts Center Foundation to the Sandler Center for the Performing Arts at Virginia Beach project re afree-standing sign. Resolution to A UTHORIZE the City Manager to execute a renewed and restated Operating Agreement with the Virginia Beach Performing Arts Center Foundation, Inc. Mr. Branch recognized Mayor Oberndorf and Councilman Wood as Liaisons for the Sandler Center for the Performing Arts: Virginia Beach Center for the Performing Arts Foundation Directors Linwood O. Branch, III - President Dorothy 1. Wood - Vice President John A. Tilhou - Secretary Thomas A. Rucker - Treasurer Kenneth V. Geroe William W. Harrison, Jr. Glen A. Huff Arthur B. Sandler Steven B. Sandler Steering Committee David M. Brashear Nancy A. Creech Ann K Crenshaw Nancy DeFord Gerald S. Divaris Michael B. Divaris Thomas R. Frantz Louis S. Haddad Aubrey Layne, Jr. 1na Levy Barbara H. Lewis Frederick J. Napolitano Richard E. Oliveri Vincent R. Oliveri David Pasko Joyce Strelitz July 10, 2007 - 7 - CITY COUNCIL BRIEFING SANDLER (Performing Arts) CENTER ITEM # 56591 (Continued) Bill Goggins, Project Manager - Clancy & Theys Construction Company, referenced the Construction update: Wave ceiling completed Theatre seats to be installed in July Building is closed-in, running Air Condition Theatre rigging in place Lobby area stone being installed Plaza and streetscape taking shape Patricia Phillips introduced Doug Higgons, Regional Vice President - Global Spectrum, who advised the on-site marketing professional will commence Monday, July 16, 2007. This professional will be dedicated specifically to the facilities. Mr. Higgons advised Mark Kline, Regional Marketing Director - Global Spectrum will detail the marketing concept Mr. Kline advised the Marketing Objectives: Sell tickets to performances Present the venue to the Hampton Roads as a superior entertainment experience for all generations Establish Center in the headlines throughout the calendar year Create and brand www.sandlercenter.org Implement a variety of grassroots marketing campaigns aimed at stretching marketing dollars further and encouraging word-of-mouth communication Utilize resources from associated entities including the Constant Center and Virginia Arts Festival The Grand Opening month lineup, 2007-008 Season Schedule and launch of newly-interactive www.sandlercenter.orz will be on August 2, 2007. Media coverage will solicited. Hard hat ours will be conducted in preparation of this event. Public Relations Coordination and execution of a series of media events designed at creating community and media awareness Media specific tours Celebrity/VIP Visits Community Relations - speaking engagements Community Open House Dedication and Ribbon Cutting Ceremony Installation of Significant Building Pieces Countdown to Grand Opening Month Confirmation of Booked Events July 10, 2007 - 8 - CITY COUNCIL BRIEFING SANDLER (Performing Arts) CENTER ITEM # 56591 (Continued) Mr. Kline advised a Virginia Beach graphic designer has been hired. Several publications are being created: 1-16 page Grand Opening and Season Announcement Brochure Press Packets Bill Stuffer for Virginia Natural Gas Educational Tri-Fold Brochure Sales Promotion Material Advertising "Shells" Mr. Kline introduced Robert Cross, Executive Director - Virginia Arts Festival. The Arts Festival was privileged to enter into a partnership with Global Spectrum for the programming of the Sandler Center for the Performing Arts. The last year has been expended negotiating with artists. Educational performances and outreach to occur from September - March of a given events season Student matinees, lecture/demonstrations, workshops, master classes, et cetera Exploring partnership with the Virginia Beach City Public Schools: Discussion with John H Brewington, Fine Arts Coordinator. Robert Cross and Mark Kline advised the box office is controlled. The funds will not be released to the artists until the event occurs. All of the funds will be held in escrow in a separate account. Mrs. Phillips advised Coming Attractions: August 2007: Announce Grand Opening Performances Summer/Fall 2007: Conduct Community Campaign Summer 2007: Execute Operating Agreement Summer/Fall 2007: Continue with hard hat tours Month of November 2007: Grand Opening events November 1,2007: Dedication Ceremony November 3, 2007: Opening Performance November 16, 2007: Opening Gala Performance July 10, 2007 - 9- CITY MANA GER 'SBRIEFING WORKFORCE HOUSING PROGRAM 2:30 P.M ITEM # 56592 Andrew Friedman, Director -Housing and Neighborhood Preservation, recognized members in attendance: Ron Ripley (Godfather of Workforce Housing) Council Lady Rosemary Wilson (initiated the Workforce Housing Program concept approximately three (3) years ago) Deputy City Attorney William Macali (development of all Ordinances) Sharon Prescott (leading program development) Mary Kay Horoszewski Executive Director, Virginia Beach Community Development Corporation. Mary Kay Nottingham Housing and Neighborhood Preservation Mr. Friedman also acknowledged all members associated with the development of this program: . Workforce Housing Program Subcommittee of Planning Commission: Ron Ripley, Council Lady Rosemary Wilson, Joe Strange, Phil Shucet, Hank Boyd, Steve Lawson, Tim McCarthy, Mary Kay Horoszewski, Dan Brockwell, John Olivieri, Iva Nash, Frank McKinney, Dan Baxter, Chandler Scarborough, Bob Scott, Karen Lasley, Andrew Friedman, Sharon Prescott, Deputy City Attorney Bill Macali . Workforce Housing Roundtable: Andrew Friedman, Angela James, Bob Horan, Chris Fanney, Christina Lowrie, Claudia Cotton, Dotty Acampora, Frank McKinney, Frank Spadea, George Horey, Greg Dragas, Jessica Guglielmo, Jim Pendergast, John Olivieri, Lou Paulson, Mary Kay Horoszewski, Matthew Weinstein, Pat Roll, Paul Peck, Peter Schmidt, Rob Rauschenberg, Ron Ripley, Rosemary Wilson, Sharon Shoff, Sharon Prescott, Steve Lawson, Teresa Stanley, Tim McCarthy, Toni Ostrowski, Wayne Crosby . Workforce Housing Development Team: Andrew Friedman, Bill Macali, Charles Hassen, Karen Lasley, Rob Rauschenberg, Ron Ripley, Stephen White, Mary Kay Horoszewski Representatives from every aspect of the housing industry, the Council of Civic Organizations and Habitat for Humanity encompassing the broadest spectrum of the Community have participated in the development of this program. July 10, 2007 - 10- CITY MANA GER 'SBRIEFING WORKFORCE HOUSING PROGRAM ITEM # 56592 (Continued) - Planning Commission formed the Workforce Housing (WFH) Subcommittee . November 2006 - Planning Commission briefed on WFH Report . January 2007 - City Council briefed . February 27, 2007 - City Council directs staff to develop ordinance and Comp Plan amendment - ~15.2-2305 of State Code amended at City's request - City Council referred ordinance and Comp Plan amendment - Planning Commission voted to approve ordinance and amendment - Council briefed on program - Public Comment and Review Program Ordinance - Council vote on entire package . May 2006 . March 2007 . June 5, 2007 . June 13, 2007 . July 10, 2007 . August 14, 2007 . August 28, 2007 Mr. Friedman advised the Worliforce Housing Reportfrom the Planning Commission concerned a vision of development in Strategic Growth Areas with a higher density, mixed use and mixed income The philosophy entails Worliforce Housing is desirable in the City. Process to achieve it - our proposals today Workforce Housing What and Where? . Workforce housing: Serves households with incomes between $36,000 and $76,000 (adjusted annually) Is part of new development when voluntarily offered by developer Is decent, safe and appropriate Is of comparable quality and design to the market rate units with which it is built Is built only where Council approves . Can be any type of housing unit . Is actually sold or rented to a qualified buyer or renter with compliance restrictions . Meets all required quality and design guidelines and is indistinguishable from market rate units . Is physically integrated in developments What Workforce Housing Is Not! . Not a government subsidy program . Not a subsidy provided by developers . Not a windfall or giveaway for developers or buyers . Not mandatory for developers . Does not place price controls on housing What Workforce Housing Is! . Provides for discounts through the use of increased density . Is optional for developers . Provides increased profit in proportion to project size . Provides an entry-price discount for buyers but does not give away the discount . Controls the price to buyers but not the actual sale or purchase price Workforce Housing is needed to expand the range of affordability of the new housing being built in Virginia Beach now and in the future as well as address the changes in the market that have made housing much less affordable to many prospective home owners. July la, 2007 - 11 - CITY MANA GER 'SBRIEFING WORKFORCE HOUSING PROGRAM ITEM # 56592 (Continued) % Change in Housing Sale Prices 100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% Jan '04 -+- N/C % Chg _ Resale % ehg Jan'05 Jan'06 Dee '06 May '07 . $ 532,673 - Average sale price of a new house in May, 2007 here. . $348,652 - Average sale price of an existing house in May, 2007. . $230,396 - Maximum affordable sales price for afamily of three in our proposed program for Workforce Housing. July 10, 2007 - 12 - CITY MANA GER 'SBRIEFING WORKFORCE HOUSING PROGRAM ITEM # 56592 Continued Housing Available for Moderate-Income First Time Homebuyers & Projected Demand (income $20,000 to$40(000) # Households Amount they Total # Seeking Housing, Can Afford Estimated In City through 2010 Today 4,800 (a) $70 to 1,300 (b) $100,000 $100,000 to 11,700 (c) $125,000 (a) Virginia Tech Study, 2004,Table 4; (b) Real Estate Assessor's report, 2007, p8: 1% of housing assessed under $100,000 (e) Real Estate Assessor's report, 2007, p8: 9% of housing units assessed l4 under $150,00 The Workforce Housing Program insures through proffers: . Quality housing affordable to the target group and integrated into new development that will be built . It will be sold to those who are eligible and need it . Its affordability will be maintained over time. The Workforce Housing Program will increase the City's ability to provide high-quality; affordable housing and preserve affordability and increase opportunities for people who work in the City to also live in the City. Economic Development can market available opportunities for relocating companies and their employees. The Worliforce Housing Program requires no new City funding. Reassigned City staff will manage the program. The Workforce Housing Advisory Board provides ongoing input. There is no direct City involvement in property ownership or sale. The Workforce Housing Program amends the Comprehensive Plan to define the need for Worliforce Housing, identifies appropriate locations, and specifies design criteria. The Zoning Ordinance establishes a new WFH Overlay District, similar to the PD-H2 District, limited to areas of the City where increased density is appropriate, including Strategic Growth Areas. The Workforce Housing Program is not for use in areas within the AICUZfootprint. The Worliforce Housing Program requires City Council's rezoning action Bonus Density Applied to 100 Base Units = 130 Total Units Workforce Housing Program Key Points . Developer Application Process Incorporated in regular development review Collaboration with DHNP and Planning Accomplished through rezoning process City Council approval required July 10,2007 - 13 - C IT Y MANA G E R 'S B R IE FIN G WORKFORCE HOUSING PROGRAM ITEM # 56592 (Continued) 325% Workforce Housing Discount applied to $240,000 market-priced unit Buyer Eligibility Live or Work or Will be working in Virginia Beach Cannot already own real estate Annual gross income between 80% and 120% of Area Median Income Net worth cannot exceed 50% ofWFH sales price Buyer Requirements -- Meet eligibility requirements -- Find desired house and sign contract with developer -- Secure own financing Soft 2nd Mortgage Equals WFH Discount Program retains proportionate share of unit's net appreciation to preserve affordability Repayment due at resale or transfer Mr. Friedman advised the Workforce Housing unit's affordability is preserved through a Second Lien. Resale of Workforce Housing Unit City has 1st option to purchase City offers fair market value If City decides not to purchase, owner may sell to general public City recaptures soft 2nd mortgage plus a share of net appreciation July 10, 2007 - 14 - CITY MANA GER 'SBRIE FING WORKFORCE HOUSING PROGRAM ITEM # 56592 (Continued) Rental Program Serves households between 60% and 90% of Area Median Income (AMI) Rental Development Compliance Developer's application process is same Maximum Rent Amounts - Must be affordable to households between 60% and 90% of Area Median Income (AMI) ***Developments with elevators can go up to 100% of Area Median Income (AMI) Established by Department of Housing and Neighborhood Preservation Reevaluated on annual basis Owner must enter regulatory agreement with City The Workforce Housing Advisory Board will consist of ten (10) members with composition defined by Virginia State Code and appointed by City Council. Their role will encompass advising the City on sales and rental prices, requests for modifications to program and reporting annually to City Council on program's progress. The Designated agent will handle the majority of the program operation. The fee to buyers will pay costs for a designated agent. The City does not take title to properties. The buyers find units and obtain their own financing. One re-assigned position will coordinate this Worliforce Housing Program with developers and planning and monitor program operations - including developer agreements, designated agent operation, liens and etcetera. The Workforce Housing Program is supported by Empower Hampton Roads, Tidewater Builders Association and the Virginia Beach Education Association. Other organizations and individuals endorsements are pending official confirmation. Mr. Friedman will discuss later this year the Workforce Housing Report entitled "Phase Two" - Neighborhood Preservation. With 163,000 units, this is a critical issue to the City. Deputy City Attorney Bill Macali advised the City Zoning Ordinance and Comprehensive Plan revisions were presented to the Planning Commission, which recommended approval and these will be scheduled for a City Council Formal Session. . Establishes a new Workforce Housing Overlay District · Similar to PD-H2 Districts Underlying Zoning District classification remains, but overlay is added on top of underlying zoning. · e.g., B-4 property becomes B-4 (WF) Rezoning to Workforce Housing Overlay District is done on application by a developer/property owner (not like other overlay districts in the City) The Workforce Housing (WFH) Overlay District will be limited to those areas of the City in which increased density is appropriate, including Strategic Growth Areas: . Especially appropriate in mixed-use districts (B-4, B-4C & B-4K) Not in areas within AICUZfootprint (65-70 dB DNL Noise Zone and above) or in R-10 through R-40 Residential Districts July 10, 2007 - 15 - C IT Y MANA G E R 'S B R IE FIN G WORKFORCE HOUSING PROGRAM ITEM # 56592 (Continued) · Purpose: Provide incentives for development of high-quality, affordable housing for households in certain income brackets . 80-120% Area Median Income (AMI) to purchase . 60-90% Area Median Income (AMI) to rent Ensure that Workforce Housing will be well-designed, of high quality and well- integrated into overall development Findings: rising prices have made it impossible for many people to buy a new home or to rent without undue financial burden; diversity in housing will preserve quality of City's neighborhoods; WFH is not inferior and will not adversely affect property values Land Use Plan: . Development in Workforce Housing Overlay District must conform to approved land use plan . Where land use plan conflicts with regulations of the underlying zoning district, the land use plan controls (same as PD-H2) Uses allowed in Workforce Housing (WFH) Overlay District are the same as those in the underlying zoning district, except that all dwelling types are allowed where the underlying zoning district is residential Land Use Plan must contain (among other things): - Architectural elevations, including building materials and colors; - Detailed description of the differences between the WFH units and market price units,. - Affordability Statement (number of WFH units affordable by each income level- 80% AMI, 90% AMI, etc) Green development features Typical things required in LUPs, e.g., layout, parking, open space, etc. · Bonus density: 30% increase in residential dwelling unit density allowed in underlying zoning district if: . at least 17% of total number of dwelling units are Workforce Housing (if 30% bonus density, number of WFH units may be reduced proportionally) . Workforce Housing (WFH) units are integrated in the development Workforce Housing (WFH) units are built at same time as other units . Workforce Housing (WFH) units must conform to the Workforce Housing Design Criteria and any other applicable design standards in the Comprehensive Plan, including: July 10, 2007 - 16 - C IT Y MANA G E R 'S B R IE FIN G WORKFORCE HOUSING PROGRAM ITEM # 56592 (Continued) · Same building materials and finish, and be effectively indistinguishable from non-workforce housing units of the same housing type · Comparable in bedroom mix, design and overall quality of construction to the market rate units in the development, except that WFH units are not be required to exceed three (3) bedrooms per unit · Square footage and interior features are not required to be the same as other dwelling units in the development units, so long as WFH units are reasonably similar in size and quality and are consistent with the current building standards for new housing in the City of Virginia Beach Mr. Friedman advised several compliance features have been built into the Worliforce Housing Program. The recorded deed for the discount gives a lot more control than the normal house. The deed will have the requirements that the owner who purchased the facility occupy it. The deed can be called, if there is repeated failure to occupy the facility as an owner/occupant. The City will have the power with the deed on the house to control its occupancy. Deputy City Attorney Macali advised any modification to the number of Workforce Housing (WFH) units, location, design features or affordability level has to be approved by City Council. Concerning the transfer on the resale of the Workforce Housing unit, Council Lady Wilson stressed the importance of the documentation containing the language that "first right of refusal will be to the City or an assignee''y. July 10,2007 - 17 - C IT Y MANA G E R 'S B R IE FIN G LEROY DRIVE MASTER PLAN 3:30 P.M. ITEM # 56593 David L. Hansen, Chief of Finance and Technology, referenced the previous report to City Council on May 1, 2007, re Facility and Space Assessments. On May First, Mr. Hansen presented results of Self- Assessments; highlighted results of validation inspections; prioritized "most needed" TOP Thirteen (13) facility lifecycle replacements; and, committed to present Leroy Drive Master Plan: #1: Animal Control and K-9 #4: Fire Shop #8: Special Ops/Evidence/Forensics Complex Top 13 Replace Animal Control and K.9 Unit at Leroy Drive 2. Replace City Wide Programs Office 3. Relocate Resort Maintenance Compound away from 14th Street 4. Construct Large Vehicle Garage at Leroy Drive (formerly Fire Shop) 5. Replace Euclid Yard Buildings 6. Replace EMS Administration BuildinglTreasurer's Beach Branch 7. Replace Thalia Fire Station 8. Construct Special OpsIEvidenceIForensics Complex at Leroy Drive 9. Replace paR Landscape ServicesI Parks Construction Facilities 10. Replace Chesapeake Beach Fire Station 11. Replace Police 4th Precinct 12. Replace PW/Highways Modular Buildings at Landstown 13. Replace Blackwater Fire Station Facilities at Leroy Drive 110,000+ square/eet . City Garages - City Fleet Maintenance · Police · Helipad Animal Control . Special Operations · K-9 · Impound Lot Records Management Warehouse Voting Machine Storage Warehouse Storage Warehouses . School Transportation Offices July 10, 2007 - 18 - CITY MANA GER 'S BRIEFING LEROY DRIVE MASTER PLAN ITEM # 56593 (Continued) Wetlands 90 acres Buildable Leroy Drive Areas 34 acres Mr. Hansen reiterated the Leroy Drive Scorecard: Positives + Location & Size + Ownership + Privacy + Safety Distances + FAA Approval Negatives -- Aging buildings -- Type of Construction -- Mission requirements -- Security -- Environmental Mr. Hansen detailed the three (3) options: Option 1 - Leave As Is · Saves the City budgetary expense Continued deterioration offacilities and worliforce environments · Impacts ability to provide effective services · React to emergency situations Option 2 - Relocate, clean up and sell the site Costs - 2006 Estimate: ~ Cost is estimated @ $16. 65-MILLION to relocate, not including School offices or land purchase. ~ Ifwe relocate, sell at a "good" price and do not have to buy land, our net cost is estimated to be $12. 15-MILLION* $16.65-MILLION (construct/lease) - $5-MILLION (sale price) + $.5-MILLION (clean up) *This does not factor in possible problems concerningfuel storage issues, ability to host a heliport, determined parameters of environmental cleanup... assumes best case scenario. July 10, 2007 - 19 - C IT Y MANA G E R 'S B R IE FIN G LEROY DRIVE MASTER PLAN ITEM # 56593 (Continued) Option 2 - Relocate, clean up and sell the site Costs - 2006 Estimate (Continued) $7.8-MILLION - Garage $2. 8-MILLION- Animal Control/K-9 $1.2-MILLION - Helicopter Hangars & Pad $1. 7-MILLION- Special Ops (w/o Forensics & Evidence) $2.5-MILLION - Storage $75K - Equipment Shelters $500+K - Environmental Cleanup A verage Relocation Construction Cost: Total Relocation Cost Estimate: $103 /square foot $16. 65-MILLION Option 3 - Revitalization Revitalize, replace, and expandfacilities in a planned and incremental manner which is affordable and ensures mission continuity to meet the public's expectations and/or provide support to government activities. Phase I - Helicopter Hanger -Funded@ $400,000 -7 Completion Feb '08 * Phase 11- Animal Control/K-9 -Unfunded - Estimated @ 52.8M -720 Months *TOP -11. * Phase 111- Large Vehicle Shop -Unfunded - Estimated@ $1.8M ~ 9 Months *Phase IV - Spec.Ops/Forensics/Evidence -Unfunded - Estimated@ 53. 8M -720 Months Phase V-Spec. Ops Storage/Utility Improvement @Leroy Drive -Unfunded - Estimated@ $530,000 -76 Months K-9 Office Current: 744 square feet (1984 - modular) Provosed: 2400 square feet Spec. Ops/F orensics/Evidence (18,000 square feet footprint w/14, 000 on 2ndfloor) Special Operations Current: 3000 square feet (1994 -Modular) Proposed: 12,000 square feet Forensics Current: 4200 square feet (1977) Proposed: 10,000 square feet Evidence Current: 3000 square feet (Building 11) Pro osed: 10,000 s uare eet Spec. Ops Storage! Utilities Upgrades Special Operations GaraQe Current: 3000 square feet (Shelter) Proposed: 12,000 square feet Heliport Addition Current: 3220 square feet (1977) Proposed: Addition of 6000 square feet July 10, 2007 - 20- C IT Y MANA G E R 'S B R IE FIN G LEROY DRIVE MASTER PLAN ITEM # 56593 (Continued) Recommendations (supports Option 3 - Revitalization . Complete Helicopter shop expansion (Ph I) . Commit FY07 Year Endfunds, if available, to replace K-9 and Animal Control facilities (Ph II) . Program Large Vehicle Shop replacement into FY09 CIP (Ph III) Program Spec Ops/Forensics/Evidence complex into FYI I CIP (Ph IV) Phases VI through X will be discussed at afuture City Council Session Phase VI-Relocation of Print Shop Operations -Unfunded - Estimated @ $I.8M -732 Months Phase VII - Establish Digital Records Center - Unfunded - Estimated @ $1.6M -7 16 Months Phase VIII - City Garage Revitalization -Unfunded - Estimated@ $10.4M -7 48 Months Phase IX-Warehousing Repair and Upgrades - Unfunded - Estimated @ $3.6M -7 12 Months Phase X-Future Office/Administration Buildings -Un unded - Estimated TBD -7 TBD July 10, 2007 - 21 - C IT Y MANA G E R 'S B R IE FIN G LEROY DRIVE MASTER PLAN ITEM # 56593 (Continued) Mr. Hansen advised there will be future briefings to City Council re facilities and space needs of the Top 13 What's Next Continue briefings to Council on facilities and space needs of TOP 13 ~ Parks and Recreation - Citywide Services (# 2) ~ Public Works and Parks and Recreation jointfacilities -14th Street (#3) and Euclid Yard (#5) ~ EMS (#4)facilities, Fire (#7, #10, #13), Police (#11) July 10, 2007 I I I - 22- CITY COUNCIL LIAISON REPORTS 4:30 P.M. ITEM # 56594 Mayor Oberndorf advised Leadership Hampton Roads honored the City Council with a beautiful sculpture. All of the City Councils who voted to become part of the Hampton Roads Transportation Authority were recognized. July 10, 2007 - 23 - CITY COUNCIL COMMENTS 4:31 PM. ITEM # 56595 Council Lady Henley referenced concerns re Cape Henry Towers and the issue of the swimming pool. The City Attorney advised meeting with Mrs. Nonie Story, President - Cape Henry Condo Association and Skip Scanlon, Director of Environmental Health, as well as Councilman Wood relative this issue. The City Attorney's office has reviewed a Variance procedure. The City Code (re swimming pools) entails whether or not a lifeguard is available at all times during operation of the pool. The staff must be assured any amendment does no impair safety in any manner throughout the City. An Ordinance to AMEND Chapter 34 of the City Code re requirement for lifeguards at "public" swimming pools to provide a variance for condominium pools and DEFINE pools by "Type" shall be scheduled for the City Council Session of July 17, 2007. ITEM # 56596 Mayor Oberndorf, Council Members Villanueva, and McClanan, referenced citizen complaints concerning the cancellation of the July Fourthfireworks at the Resort Area. Mayor Oberndorf advised Bobby Melatti - Beach Events, (during the concert) explained to the attendees the barge containing the fireworks undertook 6joot seas attempting to navigate around Cape Henry. The pilot felt the sea was too unsafe. There was a public announcement on the radio that the fireworks had been cancelled. Charles Meyer, Chief Operating Officer, advised that after discussions with Bobby Melatti and Convention and Visitors Bureau staff, the decision was made not to reschedule the Fireworks. As the Fourth of July occurred on a Wednesday, it did not make sense to attempt to reschedule for a Thursday. Had the Fourth occurred on a Thursday or Friday, it could have been moved to a weekend day. Thefunds allocated will be utilized for the fireworks throughout the remainder of the Summer. Councilman Wood referenced complaints of illegal fireworks throughout the neighborhood. Fairly elaborate shows were conducted by individuals in Various neighborhoods. ITEM # 56597 Mayor Oberndorf referenced on July 17, 2007, lunch will be provided in the Economic Development Conference Room at Noon, followed by a bus tour, commencing at 1:00 P.M, of the Strategic Growth Areas. The City Council will return to the Municipal Center by 3:30 P.M to conduct the Informal Session of City Council. Councilman Diezel will be unable to attend as during the morning and afternoon of July Seventeenth, he is sponsoring a Charity Event for a friend critically ill in the hospital. July 10,2007 - 24- AGE N DA REV I E W S E S S ION 4:47 P.M. ITEM # 56598 K. 7. Resolution to RECEIVE the recommendations of the Employee Benefits Review Task Forcefor consideration and EXTEND the term of the Task Force Councilman Diezel referenced concern that the City of Virginia Beach is the only City providing supplemental funds for dependents. Every city in the area is providing supplemental at a percentage, some, even higher than Virginia Beach. This Resolution is only to RECEIVE the recommendations, not to implement them. Councilman DeSteph believes the vote should be separate re receiving the recommendations and expanding and extending the term of the Task Force. Councilman Villanueva referenced the City Council Retreat (August 3 and 4, 2007) and requested the three (3) main target areas encompass: Employee Benefits, Transportation and Economic Development. Councilman Villanueva suggested City Council could meet with the employees in a series of Town Hall Meetings re their issue after the Retreat. ITEM # 56599 BY CONSENSUS, the following shall compose the CONSENT AGENDA K. ORDINANCES/RESOLUTIONS I. Ordinance to AMEND Chapter 2, Article XVI of the City Code, AMEND 92-382 and REPEAL 92-387 re anachronisms in the composition of the Planning Department. 2. Ordinance to A UTHORIZE the City Manager to execute a lease of City-owned property at 2293 Lynnhaven Parkway for the term of one (1) year with Tidewater Regional Group Home Commission (TRGHC), to be used as residential housingfor juvenile offenders through a transitional living program. 3. Ordinance to ACCEPT a dedication of property from the Lynnhaven-Little Neck Civic League, Inc., at 586 North Lynnhaven Road and AUTHORIZE the City Manager to execute all related documents. 4. Ordinance to ACCEPT and APPROPRIATE $300,000 from the Virginia Beach Performing Arts Center Foundation to the Sandler Center for the Performing Arts at Virginia Beach project re afree-standing sign. 5. Resolution to A UTHORIZE the City Manager to execute a renewed and restated Operating Agreement with the Virginia Beach Performing Arts Center Foundation, Inc. 6. Resolution to AUTHORIZE and DIRECT the City Manager to initiate a process to receive bids for the lease of Lynnhaven City Marina. July 10, 2007 II I - 25 - AGENDA RE VIE W SESSION ITEM # 56599 (Continued) 7. Resolution to RECEIVE the recommendations of the Employee Benefits Review Task Force for consideration and EXTEND the term of the Task Force. 8. Resolution to ESTABLISH the Transportation Authority Committee re a systematic review of the implementation of the provisions of the Hampton Roads Transportation Authority Act. Item K.2 and K.8. will be DEFERRED INDEFINITELY, BY CONSENT. Item 7 will be REMOVED FROM THE AGENDA, SUBJECT TO BE DISCUSSED AT COUNCIL RETREAT July 10, 2007 - 26- AGE N DA REV IE W S E S S ION ITEM # 56600 BY CONSENSUS, the following shall compose the PLANNING BY CONSENT AGENDA L. PLANNING 1. Variance to 94.4(d) of the Subdivision Ordinance that requires all newly created lots meet the requirements of the City Zoning Ordinance (CZO) as related to lot width for VAN GIANG at 972 Whitehurst Landing Road re the creation of a flag lot designedfor a single-family dwelling. DISTRICT 2 - KEMPSVILLE 3. Application of B'NAI ISRAEL for a Conditional Use Permit (approved by City Council on May 29, 1990, and supersededfor a church on March 2,2005) at 620 Baker Road re a commercial recreation facility (bingo hall). DISTRICT 2 - KEMPSVILLE 4. Application of SHORE DRIVE PARASAILING, INC.,for a Conditional Use Permit at 3311 Shore Drive re an outdoor recreational facility (parasailing). DISTRICT 5 - LYNNHA VEN 6. Application of BROWN BUILDING CORPORATION for a Modification of Proffers for a conditional rezoning request (approved by City Council on July 13, 1993, and modified on June 13, 2000, November 14, 2000, and February 11, 2003) at 4847 Dolton Drive to allow a child care facility. DISTRICT 2 - KEMPSVILLE 7. Application of AGC ACQUISITION, L.L.C.for a Change of Zoning District Classification from AG-2 Agricultural District to Conditional B-4 Mixed Use District at 1291 Nimmo Parkway re a retail building and 99 multi-family dwellings. DISTRICT 7 - PRINCESS ANNE Item 3 (B'NAI ISRAEL) shall be DEFERRED INDEFINITELY, BY CONSENT Item 7 (AGC ACQUISITON, L.L.C.) shall be DEFERRED INDEFINITELY, BY CONSENT July 10, 2007 - 27- ITEM # 56601 Mayor Meyera E. Oberndorf 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)(1) Council Appointments: Boards, Commissions, Committees, Authorities and Agencies Annual Evaluation of Council Appointees 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: APZ-1 Properties Laskin Road Gateway Property Acquisition. Upon motion by Council Lady Wilson, seconded by Vice Mayor Jones, City Council voted to proceed into CLOSED SESSION (5:22 P.M.). Voting: 9-0 Council Members Voting Aye: William R. "Bill" DeSteph, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Harry E. Diezel Robert M Dyer [Absent due to Illness) (Closed Session: 5:22 P.M. - 5:40 P.M.) (Dinner: 5:40 P.M. - 6:00 P.M.) July 10, 2007 - 28 - FORMAL SESSION VIRGINIA BEACH CITY COUNCIL July 10,2007 6:00 P.M. Mayor Meyera E. Oberndorf called to order the FORMAL SESSION of the VIRGINIA BEACH CITY COUNCIL in the Council Chamber, City Hall Building, on Tuesday, July 10,2007, at 6:00 P.M Council Members Present: William R. "Bill" DeSteph, Harry E. Diezel, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Absent: Robert M Dyer [Absent due to Illness) INVOCATION: Vice Mayor Louis R. Jones 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 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. July 10, 2007 - 29 - 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. July 10, 2007 - 30 - Item V-E. CERTIFICATION OF CLOSED SESSION ITEM # 56602 Upon motion by Councilman Wood, seconded by Council Lady Wilson, 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, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M Dyer July 10, 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 #56601, Page 27, 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. NOW; 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. July 10, 2007 - 31 - Item V-F.l. MINUTES ITEM # 56603 Upon motion by Council Lady Wilson, seconded by Councilman Uhrin, City Council APPROVED the Minutes of the INFORMAL and FORMAL SESSIONS of June 26,2007. Voting: 9-0 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, 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 Abstaining: Mayor Meyera E. Oberndor.f" Council Members Absent: Robert M Dyer Mayor Oberndorf VERALLY ABSTAINED as she was Attending Us. Conference of Mayors 75th Annual Meeting and not in attendance during the City Council Session of June 26, 2007 July 10, 2007 - 32 - Item V-G 1. ADOPT AGENDA FOR FORMAL SESSION ITEM 56604 BY CONSENSUS, City Council ADOPTED: AGENDA FOR THE FORMAL SESSION July 10. 2007 - 33 - Item V-G.2. PRESENTATION ITEM 56605 Mayor Oberndorf recognized the following Boy Scouts in attendance to fulfill requirements for his Communications badge. Troop 364 Bayside Presbyterian Church Jeff Waller Scout Master Dave Campbell Assistant Scout Master Mayor Oberndorf presented the Scouts with City Seal pins July 10,2007 - 34- Item V-H.J. PUBLIC HEARING ITEM #56606 The Mayor DECLARED A PUBLIC HEARING: BYRNE MEMORIAL JUSTICE ASSISTANCE GRANT There being no speakers, Mayor OberndorfCLOSED THE PUBLIC HEARING July 10, 2007 - 35 - Item V-H.2. PUBLIC HEARING ITEM #56607 The Mayor DECLARED A PUBLIC HEARING: LEASE OF CITY PROPERTY - 2293 Lynnhaven Parkway Tidwater Regional Group Home Commission (TRGHC There being no speakers, Mayor Oberndorf CLOSED THE PUBLIC HEARING July 10, 2007 - 36 - Item V-Ll PUBLIC BRIEFING ITEM #56608 TOWN CENTER PHASE III AND PROPERTY EXCHANGE Alexander Stiles, Associate City Attorney, presented information relative the Town Center Modifications, Block 2 - "Beacon Building" - Exchange and changes to Phase III Development Agreement An exchange of Block 2 (Beacon Building) and Land from Landmark Communications for: . 15,000 square feet Improved Office Space in Block 7 Westin Hotel Building . Five (5) Parking Spaces in Westin Parking Garage . $1.635-MILLION · Moving Expenses Virginia Beach Development Authority Exchange Actions Purchase 25,000 square feet Unimproved Office Space from Armada Hoffler in Westin Retail ($2.8- MILLION) Build-out 15,000 of the 25,000 squarefeetfor New Beacon Space ($945,000) Exchange the Improved 15,000 square feet for Block 2, Plus $1. 635-MILION Cash Provide $300,000 to Landmarkfor moving expenses from Economic Development Investment Program (EDIP) Provide Landmarkfive (5) Parking Spaces in Westin Garage ($115,000) Retain 10,000 square feet in Westin Retail until purchased by Armada Hoffler Associate City Attorney Stiles cited the actions required by Armada Hoffler: . Purchase Beacon site from Virginia Beach Development Authority (no later than thirty-six (36) monthsfrom closing on the Beacon Building) . Purchase 10,000 square feet in Westin Retail (no later than thirty-six (36) months from closing on Block 7 Virginia Beach Development Authority Facilities) Summary of Costs to Virginia Beach Development Authority $1,680,000 Value of 15,000 Sq Ft Space in Block 7 $1,120,000 Value of 10,000 Sq Ft Space in Block 7 $ 945,000 to Improve 15,000 Sq Ft Space in Block 7 $ 115,000 Value of5 Reserved Parking Spaces in Westin Garage $1,635,000 Cash Payment to Landmark $ 300,000 Cash Paymentfor moving expenses $5,795,000 July 10, 2007 - 37 - Item V-L1 PUBLIC BRIEFING ITEM #56608 (Continued) Financed By: $5,495,000 Estimated Bank Loan $ 300,000 $5,795,000 EDIP Grant to Landmark for moving expenses Armada Hoffler Obligations $4,375,000 Purchase Block 2from VBDA $1,120,000 Purchase 10,000 Sq Ft Shell Space in Westin $5,495,000 Total Armada Hoffler Obligation plus Costs of Carry incurred by VBDA Associate City Attorney Stiles stressed the following notes of importance: · Exchange Agreement with Landmark includes a provision that the Virginia Beach Development Authority will work with Landmark to seek approval of an electronic news crawler sign on the exterior of the Westin Retail Space to replace the Beacon's existing sign · Exchange Agreement with Armada Hojjler include a statement of intent to proceed with an office building on the Beacon site under a similar arrangement as on Block 4 Changes to the Phase III Development Agreement PHASE III ADDITIONAL COSTS -- . "'-1'" . __.11llill7 . 0Hirw......1kCIlI -- ~........, -- --- &:l.....~ *-- July 10, 2007 - 38 - Item V-Ll PUBLIC BRIEFING ITEM #56608 (Continued) PHASE III TRANSFERRED FUNDS .- . """"11WY . ....1$., . om.__1lIotIil -- iii!- .- .-- Jffi! ,............ *-- Summary of Phase III Modification Costs $ 250,000 Increased Cost of Bridge: Westin and Dick's Garage $ 500,000 Increased in Cost of Kitchen in Conference Center $ 260,000 Increased Interest Costs - Westin Garage $ 95,000 Increased Interest Costs - Conference Center $1,105,000 Financed By $1,105,000 Tax Increment Financing (TIF) Funds Transferred Funds $ 275,000 Transfer Streetscapefrom Block 9 to Block 5 $ 200,000 Transfer Streetscapefrom Block 9 to Block 6 $ 475,000 The Beacon Exchange and Phase III Development Agreements will be scheduled for the City Council Session of July 17, 2007 July 10, 2007 - 39 - Item v,/(, ORDINANCES/RESOLUTIONS ITEM #56609 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council APPROVED IN ONE MOTION Ordinances/Resolutions 1, 2 (DEFERRED), 3, 4, 5, 6, and 8 (DEFERRED) of the CONSENT AGENDA Item /(,2 (Tidewater Regional Group Home Commission) was DEFERRED INDEFINITELY, BY CONSENT. Item K. 4 (Employee Benefits Review Task Force) REMOVED FROM THE AGENDA, SUBJECT TO BE DISCUSSED AT COUNCIL RETREAT Item /(,8 (Transportation Authority Committee) was DEFERRED INDEFINITELY, BY CONSENT Voting: 9-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Harry E. Diezel and Robert M Dyer July 10, 2007 - 40- Item V.K1. ORDINANCES/RESOLUTIONS ITEM #56610 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Ordinance to AMEND Chapter 2, Article XVI of the City Code, AMEND 92-382 and REPEAL 91-387 re anachronisms in the composition of the Planning Department. Voting: 9-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Harry E. Diezel and Robert M Dyer July 10, 2007 1 AN ORDINANCE TO AMEND ARTICLE XVI OF CHAPTER 2 2 OF THE CITY CODE BY AMENDING SECTION 2-382 3 AND REPEALING SECTION 2-387 OF THE CITY CODE, 4 PERTAINING TO THE COMPOSITION OF THE 5 DEPARTMENT OF PLANNING 6 7 8 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 9 BEACH, VIRGINIA: 10 11 That Article XVI of Chapter 2 of the City Code is hereby amended and 12 reordained by amending Section 2-382 and repealing Section 2-387 of the City Code, 13 pertaining to the composition of the Department of Planning, to read as follows: 14 15 16 CHAPTER 2. ADMINISTRATION. 17 18 ARTICLE XVI. DEPARTMENT OF PLANNING 19 20 21 22 Sec. 2-382. Composition. 23 24 The department of planning shall consist of a director appointed by the city 25 manager and such assistants as may be provided. The department of planning shall 26 also include a permits and inspections division, 3 weights 3nd measures bureau and a 27 zoning administrator~ who shall possess all powers and authority granted to such 28 officers by statute, ordinance or charter. 29 30 31 32 Sec. 2 387. Composition of weights and measures bureau, function; police 33 powers. 34 35 (a) Tho weights and measuros bureau of the dopartmont of planning shall be responsible for 36 all matters pertaining to weights and measures and complaints of fr::wd ::md unlavlful practices 37 and dealings with consumers v..ith respoct to weights and measures. It shall be the responsibility 38 of this bureau to soe that tho laws of the stato and ordinances on tho subject of weights and 39 measures aro enforced in the city, as well as to enforco othor rulos, regulations, ordinances and 40 laws portaining to consumors. 41 42 (b) There shall be, within the weights and moasures bureau, a sealer of weights and 43 measures. He shall havo such additional duties as may be assigned by tho city manager. 44 45 (c) Police pO'A'ers are hereby conferred upon the inspectors of the 'Neights and measures 46 bureau and the cealer of 'Noights and measures, while engaged in performing their lavlful duties; 47 and they are authorized to :mest any violator of such la\\'8 and ordinances and to seize, for uso 48 as evidence, without formal warrant, incorrect or unsealed weights and measures or amounts of 49 packages or commodities found to be used, retained, offered or exposed for sale or sold in 50 violation of la\".'. 51 52 Adopted by the City Council of the City Of Virginia Beach on the 10th day of July, 53 2007. - 41 - Item v'K.2. ORDINANCES/RESOLUTIONS ITEM #56611 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council DEFERRED INDEFINITELY: Ordinance to AUTHORIZE the City Manager to execute a lease of City- owned property at 2293 Lynnhaven Parkway for the term of one (I) year with Tidewater Regional Group Home Commission (TRGHC), to be used as residential housing for juvenile offenders through a transitional living program. Voting: 9-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Harry E. Diezel and Robert M Dyer July 10. 2007 - 42- Item v'K.3. ORDINANCES/RESOLUTIONS ITEM #56612 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Ordinance to ACCEPT a dedication of property from the Lynnhaven- Little Neck Civic League, Inc., at 586 North Lynnhaven Road and A UTHORlZE the City Manager to execute all related documents. Voting: 9-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James 1. Wood Council Members Voting Nay: None Council Members Absent: Harry E. Diezel and Robert M Dyer July 10, 2007 1 AN ORDINANCE TO AUTHORIZE THE ACCEPTANCE 2 OF A DEDICATION OF 15.6 ACRES OF PROPERTY 3 LOCATED AT 586 NORTH L YNNHAVEN ROAD, 4 ADJACENT TO THE KINGS GRANT ELEMENTARY 5 SCHOOL IN VIRGINIA BEACH, IN FEE SIMPLE FROM 6 THE L YNNHAVEN-L1TTLE NECK CIVIC LEAGUE, 7 INC. 8 9 WHEREAS, Lynnhaven-Little Neck Civic League, Inc. (the "Civic League") owns 10 15.9 acres of property located at 586 North Lynnhaven Road (the "Property"). 11 12 WHEREAS, the Civic League, has offered to dedicate the 15.6 acres to the City of 13 Virginia Beach 14 15 WHEREAS, Capital improvements on the property include one 300-foot lighted 16 baseball field, two 200-foot lighted baseball fields, one administration building, two 17 concession/restroom buildings, one equipment storage building, and a 27,000 square foot 18 asphalt parking lot. Both City water and City sewer services are being provided to the 19 Property 20 21 WHEREAS, the Department of Parks and Recreation has determined that the 22 Property will further the recreational needs of the City and that the Property should 23 continue to be used as a recreational facility. 24 25 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 26 VIRGINIA BEACH, VIRGINIA: 27 28 1. That the City Council authorizes the acceptance of the dedication of 29 the Property by Lynnhaven Little Neck Civic League, Inc. to the City of Virginia Beach by 30 Deed of Gift pursuant to section 15.2-1800, Code of Virginia of 1950, as amended. 31 32 2. That the City Manager or his designee is authorized to execute all 33 documents that may be necessary or appropriate in connection with accepting the 34 dedication of the Property, so long as such documents are acceptable to the City Manager 35 and the City Attorney. " ./'" "/ " <V "- " "- "- X:\Projects\ARC Files\Agenda Maps\Lynnhaven Little Neck Civic - 43 - Item V.K.4. ORDINANCES/RESOLUTIONS ITEM #56613 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Ordinance to ACCEPT and APPROPRIATE $300,000 from the Virginia Beach Performing Arts Center Foundation to the Sandler Center for the Performing Arts at Virginia Beach project re a free- standing sign. Voting: 9-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Harry E. Diezel and Robert M Dyer July 10, 2007 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 AN ORDINANCE TO ACCEPT AND APPROPRIATE $300,000 FROM THE VIRGINIA BEACH PERFORMING ARTS CENTER FOUNDATION TO CAPITAL IMPROVEMENT PROJECT # 3-283 "SANDLER CENTER FOR THE PERFORMING ARTS AT VIRGINIA BEACH" FOR A FREE-STANDING SIGN WHEREAS, the Virginia Beach Performing Arts Center Foundation has raised the necessary funding for a second free-standing sign for the Sandler Center for the Performing Arts; NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: 1. That $300,000 is hereby accepted from the Virginia Beach Performing Arts Center Foundation and appropriated to Capital Improvement Project #3-283, "Sandler Center for the Performing Arts at Virginia Beach," for a free-standing sign, with revenue from donations increased accordingly. Requires an affirmative vote by a majority of the members of the City Council. of Adopted by the Council of the City of Virginia Beach, Virginia on the 10th day July ,2007. Approved as to Content: Approved as to Legal Sufficiency: A. I~ Sv( I'v-- City AttorJ(s Office CA 1 0448 R-3 June 29, 2007 rOUN!)^ llON OIF,:Ec'rOH~'~ STEEHING COMMITTEE HONORA.RY l\DVIsor:,;y COUNCIl ,,\; it June 29, 2007 .\1r. James 51)ore, Citv '\:{;l1L1Qer _ ',; l) City ofVirg-iniaBeach .\Iunicipal Center, Building 1 2401 Courthouse Drive. Suite 234 Virginia Beach, VA 23456 Dear Jim, FiollO\ving the joint meeting last week of the Virglllia BeachPerfornllng :\rts Center FoundatIOn and the Capital Campaign Steering Committee, we would lIke to respecttully request the approval to move ahead with constmction on a Plaza Marquee to be erected on the corner of Commerce and Market Streets in front of the Sandler (:enter I;)r the Perfonning:\rts, as approved by (:ity Council in the (:enter's signage package in r'ehru>lry 2007. 'The FoundatIon and Steering Committee have unanimously agn'c.d tel fund additional marquee ;\t 10000. The cost IS approximately $300,000. As previously stated, the r'ounc]ation \vill ,\1so fund the $100,000 public ,\rt Sandler Center. f('Jr In addition to these capital projects, the Jioundation iwd Steering Committee w'it.del s encourage that the City explore the purchase of a projector to enable the Center to unique tilrn festivals and other slrntlar events. ThiUlk you for your contmued support of this exclling project. Regards, O. Branch, III President ec: Bill C;oggins, CImcy and Theys Construction C,)rnpany DaVId I,. Hansen, Chlf'f of J,'inance & Technology F:w:rette fknldon. Publtc \Vurks PatriCla Phillips, Dtrector \'.1ron \Vehh, Puhlic \\'orks - 44- Item V.K.5. ORDINANCES/RESOLUTIONS ITEM #56614 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Resolution to AUTHORIZE the City Manager to execute a renewed and restated Operating Agreement with the Virginia Beach Performing Arts Center Foundation, Inc. Voting: 9-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Harry E. Diezel and Robert M Dyer July 10,2007 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 A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A RENEWED AND RESTATED AGREEMENT WITH THE VIRGINIA BEACH PERFORMING ARTS CENTER FOUNDATION, INC. WHEREAS, Sandler Center for the Performing Arts at Virginia Beach ("Center") is a community-based, professional quality, twelve hundred-seat facility that is currently under construction at the Town Center in Virginia Beach; and WHEREAS, the mission of the Center is to provide exceptional cultural opportunities for the community to both participate in and enjoy and to serve as a cultural focal point for the performing arts in Virginia Beach; and WHEREAS, the Virginia Beach Performing Arts Center Foundation, Inc. ("Foundation") is a permanent, non-profit section 501 (c)(3) organization whose responsibilities include (i) providing adequate resources for the activities of the Center through a commitment to fundraising, including capital, endowment, and potential on- going annual fundraising; (ii) advising on long-range planning and vision for the Center; (iii) ensuring that the work of the Center is consistent with the mission; (iv) serving as an ambassador in the community and region advocating the mission and establishment of the Center; and (v) serving on committees or task forces, as needed; and WHEREAS, on July 12, 2005, the City and the Foundation entered into an operating agreement to memorialize the responsibilities and obligations of the City and the Foundation as they relate to certain operational activities of the Center; and WHEREAS, the operating agreement expires on July 11, 2007; and WHEREAS, the City and the Foundation desire to renew and restate the agreement in an effort to assure the success and prosperous growth of the Center; and WHEREAS, the Renewed and Restated Agreement will extend the term from two years to ten years. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: The City Manager is hereby authorized and directed to execute said Renewed and Restated Agreement on behalf of the City of Virginia Beach. A red line copy of the Renewed and Restated Agreement is attached hereto. Adopted by the Council of the City of Virginia Beach, Virginia on the 10th day of JulV ,2007. Approved as to Content: ~~ CA10414 June 28, 2007 R-3 Approved as to Legal Sufficiency: 2 )v.,(,~ s Office RENEWED AND AMENDED RESTATED OPERATING AGREEMENT BETWEEN THE CITY OF VIRGINIA BEACH AND VIRGINIA BEACH PERFORMING ARTS CENTER FOUNDATION, INC. THIS RENEWED AND AMENDED RESTATED OPERATING AGREEMENT ("Agreement") made and entered into as of this _ day of , 2007, by and between the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia ("City"), and the VIRGINIA BEACH PERFORMING ARTS CENTER FOUNDATION, INC., a non-stock, non-profit organization with a tax exempt status under section 501(c)(3) of the United States Internal Revenue Code ("Foundation"). RECITALS WHEREAS, the City is the owner of grounds and related facilities currently under construction in the City of Virginia Beach, known as the Sandler Center for the Performing Arts ("Center"). It is estimated that construction of the Center will be completed in 2007; WHEREAS, the Foundation is a non-stock, non-profit, charitable organization existing under the laws of the Commonwealth of Virginia; WHEREAS, the responsibilities of the Foundation include (i) providing adequate resources for the activities of the Center through a commitment to fund raising, including.; capital, endowment, and potential on-going annual fundraising; (ii) advising on long- range planning and vision for the Center; (iii) ensuring that the work of the Center is consistent with the mission; (iv) serving as an ambassador in the community and region advocating the mission and establishment of the Center; and (v) serving on committees or task forces, as needed; WHEREAS, the Foundation and the City wish to assure the success and prosperous growth of the Center in the future by memorializing the responsibilities and obligations of the City and the Foundation as they relate to certain operational activities; WHEREAS. the Foundation was required by the City to raise twelve and a half..- million dollars ($12,500,00.00) to assist with the construction of the Center ("Fundraising Campaiqn"); WHEREAS. the Foundation has received qifts and pledqes for the Capital Fundraising Campaiqn that meet or exceed the City's requested assistance; Page 1 of 5 WHEREAS, those funds may be received at various times over a ten (10) year period; WHEREAS, the Foundation irrevocablv pledqes that all such funds associated with the Capital Fundraisinq Campaiqn shall be desiqnated as funds of the City and shall be paid to the City as they are received; WHEREAS, the Foundation now desires to continue its fundraisinq activities in support of the Center bv establishinq an endowment fund ("Endowmenn. which shall be defined in the bv-Iaws of the Foundation; WHEREAS, the Endowment effort shall be on-qoing and may raise funds to support activities at the Center. includinq those of an educational nature; and WHEREAS, the City and Foundation aqree that the Endowment funds shall be solicited. received, controlled. invested and expended by the Foundation. in its discretion. and the City has no expectation that such funds will be available for costs or activities of the City. althouqh the purpose of the Endowment will be qenerallv to support activities at the Center. AGREEMENT The parties to this Agreement, for and in consideration of the mutual efforts to promote and support the development of the Center, agree as follows: 1. OPERATING PROCEDURES A. The City Manager of the City of Virginia Beach (the "City Manager") shall be the official responsible for the administration of this Agreement for the City. B. An Executive Director shall be selected by the City Manager, upon consultation with the Foundation, and employed by the City. The Executive Director shall oversee the day-to-day operations of the Foundation and shall assist the Foundation in planning and implementing its fund raising activities. The Executive Director shall receive no remuneration from the Foundation and shall have no voting rights with respect to Foundation business or affairs. C. The City shall employ a Fundraiser Campaign Coordinator to work with the Foundation to develop and coordinate all aspects of the eCapital campoign Fundraising Campaiqn. Specifically, the Fundraising Campaign Coordinator shall work in collaboration with the Foundation on public relations and marketing strategies, shall plan and implement campaign, donor cultivation, and other special events, and shall provide professional administrative services to the Foundation. The Fundraisinq Campaign Coordinator shall report to the Executive Director. Page 2 of 5 D. For the Fundraisinq Campaign. and whenever mutually aqreed upon thereafter. +1he City and the Foundation may engage in joint promotional efforts, including marketing and the solicitation of funding through grants. However, no City employee shall actively solicit any donations on behalf of the Foundation unless the City Manager specifically approves such activity. Any funds or grants received by the City shall not be appropriated to the Foundation unless so directed by the City Council pursuant to an ordinance adopted by City Council. Any funds or grants received by or awarded or donated to the Foundation shall be accounted for in the Foundation's records and disbursed in accordance with the donor's or grantor's instructions. E. The Foundation may continue its fundraising activities in support of the. Center by establishinq an on-qoinq Endowment for the purpose of promotinq and supporting activities at the Center. consistent with the Foundation's by-laws. Any and all funds received by the Foundation for the Endowment shall be the responsibility of the Foundation and shall be within the exclusive control of the Foundation. The City acknowledqes that the Foundation has no obliqation to appropriate any Endowment funds to the City. ~F. In the event the Foundation dissolves, becomes inactive, or discontinues.- its active support of the Center, all monies pledged or dedicated to the Center for aflY existing the Fundraisinq Campaiqnproject shall become property of the City, and shall only be used by the City for the purpose for which they were pledged or dedicated. ~G. The City and the Foundation acknowledge and agree that all Foundation.- correspondence, financial records and all Foundation documents shall be kept separate and apart from all City records. ~H. In return for the Foundation's in-kind contributions and services to the.- Center, and in furtherance of the Foundation's goal of supporting the Center through advocacy and fundraising, the City will, at its expense: (i) employ a Fundraisinq Campaign Coordinator, for the Fundraising Campaiqn, as described above; (ii) provide for the supervision of the Fundraisinq Campaign Coordinator, by the Executive Director, and supervise the quality, accuracy, and timeliness of campaign correspondences, proposals and other materials; (iii) make available office space to house and equip the Foundation's administrative and personnel needs; (iv) provide the Foundation with a facsimile machine, computer hardware and software, copying equipment, and dedicated telephone lines to implement and facilitate the responsibilities of the Foundation; (v) supply additional City personnel, as necessary, to provide informational support and to keep the Foundation abreast of the construction progress and of programming developments related to the Center; and (vi) permit access to City facilities for Page 3 of 5 fundraising activities and for other private functions which generate revenue for the Center, subject to the prior approval of the City Manager or his designee. I. The Foundation acknowledaes that all financial obliaations of the City are subiect to annual appropriation by the City Council. 2. INSURANCE The Foundation shall provide to the City's Risk Management Administrator evidence of liability insurance coverage for the Foundation and its employees and Board Members. All policies of insurance required herein shall be written by insurance companies licensed to conduct the business of insurance in Virginia and shall carry the provision that the insurance will not be cancelled or materially modified without thirty (30) day prior written notice to the City. 3. RECORD KEEPING A. The Foundation shall provide annually to the City an audited financial statement. The audit shall be made in accordance with generally accepted auditing principles by an independent certified public accountant covering all Fundraisina Campaian monies which are the subject of this Agreement. The statement will be provided on or before June 30 of each year during this Agreement but shall not include any information regarding individual Foundation donors. B. The Foundation shall provide the City with an updated copy of its articles, bylaws and officers and directors. The Foundation shall also provide the City with a copy of its IRS Form 990 (Return of Organization Exempt from Income Tax) without accompanying documentation providing information concerning any specific Foundation donor. 4. INDEPENDENT CONTRACTORS In the performance of this Agreement, both the City and the Foundation will be acting in an individual capacity and not as agents, employees, partners or joint venturers or associates of one another. The agents or employees of the one shall not be construed to be the agents or employees of the other. City employees shall remain employees of the City notwithstanding the fact that they may assist the Foundation. Neither the City nor its agents, volunteers, servants, employees or officials shall be responsible or liable for any claim or suit arising from contracts, agreements, understandings or arrangements made by the Foundation with any person or entity covering services or good procured by the Foundation, or for the negligent or willful acts of the Foundation. Page 4 of 5 5. TERM The term of this Agreement shall be for ten (10) years from the date of execution. Thereafter, the Agreement may be renewed for an additional five-year term with the consent of the City Manager. 6. AMENDMENTS OR MODIFICATIONS The City or the Foundation may amend or modify this Agreement upon mutual agreement. Such amendment(s) or modification(s) shall be in writing and executed by the authorized representatives of the City and the Foundation. 7. TERMINATION The City or the Foundation may terminate this J\greement at any time upon gi'Jing thirty (30) days '.witten notice to the other party. Each party shall continue to fulfill all of its obligations under the Agreement during the said thirty (30) day period. SZ. NOTICES Any notice or notices required or permitted pursuant to this Agreement shall be given by certified mail, postage prepaid, return receipt requested as follows: To the City: James Spore City Manager City of Virginia Beach 2401 Courthouse Drive, Room 234 Virginia Beach, VA 23456 To the Foundation: Linwood Branch, III President, Virginia Beach Performing Arts Center Foundation, Inc. Days Inn at the Beach 1000 Atlantic Avenue Virginia Beach, VA 23451 9~. ENTIRE AGREEMENT The parties agree that this writing constitutes the entire agreement of the parties and that there may be no modification of this Agreement, except in writing, executed by the authorized representatives of the City and the Foundation. Page 5 of 5 As evidence of their agreement to the terms and conditions set forth herein, the parties affixed their authorized signatures hereto: VIRGINIA BEACH PERFORMING ARTS CENTER FOUNATION, INC. By: Title: CITY OF VIRGINIA BEACH By: City Manager / Authorized Designee Approved as to Legal Sufficiency: Approved as to Content: City Attorney's Office Office of Cultural Affairs Approved as to Legal Sufficiency: Approved as to Risk Management: Foundation Counsel Risk Manager Page 6 of 5 - 45 - Item v.K. 6. ORDINANCES/RESOLUTIONS ITEM #56615 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Resolution to AUTHORIZE and DIRECT the City Manager to initiate a process to receive bids for the lease of Lynnhaven City Marina. Voting: 9-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Harry E. Diezel and Robert M Dyer July 10,2007 1 A RESOLUTION AUTHORIZING AND DIRECTING 2 THE CITY MANAGER TO INITIATE A PROCESS TO 3 RECEIVE BIDS FOR THE LEASE OF THE 4 L YNNHAVEN CITY MARINA 5 WHEREAS, pursuant to a 1965 agreement with the Army Corps of Engineers for 6 the dredge of the Lynnhaven Inlet, the City of Virginia Beach agreed to acquire land and 7 construct and maintain a Marina near the inlet for public use; and 8 WHEREAS, in furtherance of the agreement, the City acquired the necessary 9 land and constructed the Lynnhaven City Marina, which the City has operated since 10 1969; and 11 WHEREAS, upon the staff recommendation, the City Council believes it may be 12 in the best interests of the City to lease the facility to a private operator with the 13 requirement that the facility maintain open to the general public and meet all 14 requirements of the agreement with the Army Corp of Engineers; and 15 WHEREAS, the City Council recognizes the close proximity of the facility to 16 residential as well as commercial uses and directs the staff to consider compatibility of 17 any lease proposed to the surrounding uses; and 18 WHEREAS, the City Council also has been informed and believes that the 19 marina facility can be significantly enhanced by a private operator and that opportunities 20 also exist to enhance service to the public as well as compatibility with surrounding 21 uses; 22 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY 23 OF VIRGINIA BEACH: 24 That the City Manager is hereby authorized and directed to initiate a process to 25 receive bids for the lease of the Lynnhaven City Marina, pursuant to state law, for the 26 purposes of enhancing the physical features of the Marina, improving services to the 27 public, maintaining and enhancing compatibility with surrounding uses and the City's 28 comprehensive plan for the Lynnhaven River Basin, decreasing city costs for 29 maintenance, and receiving lease revenues. 30 Adopted by the City Council of the City of Virginia Beach, Virginia, on this --1.Q..th 31 day of ,1111 y ,2007. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: ~~ CA10447 R-6 June 29, 2007 - 46- Item V.K. 7. ORDINANCES/RESOLUTIONS ITEM #56617 REMOVED FROM THE AGENDA, SUBJECT TO BE DISCUSSED AT CITY COUNCIL RETREAT: Resolution to RECEIVE the recommendations of the Employee Benefits Review Task Forcefor consideration and EXTEND the term of the Task Force. BY CONSENSUS July 10, 2007 - 47 - Item V..K.8. ORDINANCES/RESOLUTIONS ITEM #56618 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council DEFERRED INDEFINITELY: Resolution to ESTABLISH the Transportation Authority Committee re a systematic review of the implementation of the provisions of the Hampton Roads Transportation Authority Act. Voting: 9-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Harry E. Diezel and Robert M Dyer July 10, 2007 - 48- Item V-L.J. PLANNING ITEM #56619 1. VAN GIANG VARIANCE 2. CA VALIER GOLF & YACHT CLUB CONDITIONAL USE PERMIT 3. B'NAI ISRAEL CONDITIONAL USE PERMIT 4.SHORE DRIVE PARASAILING, INC. CONDITIONAL USE PERMIT 5.a. HAC PROPERTIES, L.L.c. MODIFICATION OF Proffer No.3 (Approved: June 22, 2004) b. NORMAL DIANE PAYNE HEWITT CONDITIONAL USE PERMIT tlaARGO OF TIDEWATER 6. BROWN BUILDING CORPORATION MODIFICATION OF PROFFERS Conditional Zoning (approved July 13, 1993/modified on June 13, 2000/ February 11, 2003) 7. AGC ACQUISITION, L.L.C. CONDITIONAL CHANGE OF ZONING July 10, 2007 - 49- Item V-L. PLANNING ITEM #56620 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council APPROVED IN ONE MOTION Items 1, 3 (DEFERRED) 4, 6 and 7 (DEFERRED) of the Planning by Consent Agenda. Item L. 3. (B'NAI ISRAEL) was DEFERRED INDEFINITELY, BY CONSENT. Item L. 7. (AGC ACQUISITION, L.L.C) was DEFERRED INDEFINITELY, BY CONSENT. Voting: 9-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Harry E. Diezel and Robert M Dyer July 10. 2007 - 50 - Item V-L.1. PLANNING ITEM #56621 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council APPROVED a Variance to ~4.4(d) of the Subdivision Ordinance that requires all newly created lots meet the requirements of the City Zoning Ordinance (CZO) as related to lot width for VAN GIANG at 972 Whitehurst Landing Road re the creation of ajlag lot designedfor a single-family dwelling Appeal to Decisions of Administrative Officers in regard to certain elements of the Subdivision Ordinance, Subdivision for Van Giang. Property is located at 972 Whitehurst Landing Road (GPIN 1466331306). DISTRICT 2 - KEMPSVILLE Voting: 9-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Harry E. Diezel and Robert M Dyer July 10, 2007 - 51 - Item V-L.2. PLANNING ITEM #56622 The following registered in SUPPORT: Attorney R. J Nutter, 222 Central Park Avenue, Phone; 687-7500, representing the applicant, advised the Cavalier Hotel originally owned this property and in 1926 built this golf course for the guests of their hotel. In 1964, the property was sold to the members of the Club and it has been known as the Cavalier Yacht and Country Club since that time. The applicant wishes to construct an Agronomy Center (maintenance facility). In 2003, they were advised this was an accessory use and a Conditional Use Permit was not necessary. This is a customary accessory use to golf clubs across the country. Attorney Nutter referenced amendments to conditions,' 1 a: Number of parking spaces shown on the site plan shall be reduced to three (3) spaces, shown on the northeast side of the proposed maintenance buildingfor the superintendent, assistant superintendent and the mechanic. The applicant shall shuttle the grounds keepers and maintenance employees to the Agronomy Center by an electric cart.from the Club's main parking lot; and 5. Perimeter landscaping shall be installed on the northern and eastern portions of the Agronomy Center. Thick screening (landscaping) shall be installed along the exterior portions of the Agronomy Center that abut lots 36, 37 and 38. The applicant shall work with the planning staff and the owners of the three (3) lots to determine the most appropriate type of landscape screening to be planted within this area. All funds are available for construction of this facility. The applicant currently maintains the Near Post property, placing fencing around this adjacent property. Joel Plax, 222 Central Park Avenue, President - Cavalier Golf and Yacht Club, and 5th year on the Board of Directors. The Plan has been endorsed to improve the family oriented area. John Napalatano, immediate Past President of Cavalier Golf and Yacht Club and life long resident of Birdneck Point Ed Clexton, member - Board of Directors of Cavalier Golf and Yacht Club, Chair of the long range Ad Hoc Committee on land use Fred Napalatano, Phone; 474-0888, resident of Birdneckfor forty-seven (47) years, previously served on the Board of Directors and has been a member of the Cavalier Golf and Yacht Club for forty-five (45) years. Janet Ogren, 1008 Bobolink Drive, Phone: 428-0957,fifteen (J 5) year resident of Birdneck Point, ten (J OJ-year member of the Cavalier Golf and Yacht Club Tony Walker, 915 Pine Knob Way, Phone; 962-9869, Member of the Board of Directors - Cavalier Golf and Yacht Club and served on the Ad Hoc Land Use Committee, Long Range Planning Committee and Chaired - Membership Committee and Commodore of the Yachting division. John Milleson, 1052 Cardinal Road, Phone: 428-3131, General Manager - Cavalier Golf and Yacht Club for 6 12 years Bill Lascara, 912 Cardinal Road, Phone: 422-1920, long time resident of Birdneck Point, resident of home on 4th hole of the Cavalier Golf Course, and Member of the Board of Directors, Cavalier Golf and Yacht Club Jimmy Capps, 940 Cardinal Road, Phone: 428-1821, resident of Birdneck Pointfor over thirty (30) years Tom Atherton, 933 Cardinal Road, Phone: 652-8159, new Member of the Cavalier Golf and Yacht Club July 10, 2007 - 52 - Item V-L.2. PLANNING ITEM #56622 (Continued) Pamela M Reed, 1252 Crystal Lake Circle, Phone: 425-7784, resident since 2000 and husband is a Member - of the Board of Directors - Cavalier Golf and Yacht Club and chairs the Tennis Committee Chris Zetterwall, 936 Cardinal Road, Phone: 962-2993, Member of the Cavalier Golf and Yacht Club for almost 3 12 years Ted Verfurth, 1304 Penguin Circle, Phone: 425-6849, 16- year resident Jack Griffith, 30 5rt Street, Phone: 428-4079, 13-year Member of the Cavalier Golf and Yacht Club and Board of Directors Katherine K. Malbon, 1335 Penguin Circle, Phone: 428-8638, new resident of Birdneck Point, single mother, although not a member supports the application Dr. John Brush, 1426 North Woodhouse Road, Phone: 496-2576, children swim on the Team. The Pool needs to be upgraded The tennis facilities need to be expanded to year-round Wiley Mitchell, lone Commercial Place, Phone: 628-5673, seventeen (l7)-year resident and Member of the Board of Directors - Cavalier Golf and Yacht Club. Membership is declining. The following registered in OPPOSITION: Attorney Kevin Martingayle, 2101 Parks Avenue, and Phone: 589-2224, represented the neighborhood The application is inconsistent with the Comprehensive Plan Toles Summers, 824 Cardinal Road, Phone: 422-4998 Rayu Gorski, 1228 Kamichi Court, resident of Birdneck Point and Member of the Cavalier Golf and Yacht Club Harry B. Gibson, 820 Cardinal Road, Phone: 422-9379, resident of Birdneck Point and Member of the Cavalier Golf and Yacht Club for twenty-three (23) years David Shepheard, 820 Oriole Drive, Phone: 621-7973 Tim Devlin, 1316 Penguin Court, Phone: 425-7795, retired and Member of the Cavalier Golf and Yacht Club Helen Junkin, 1224 Kamichi Court, Phone: 425-3699 Sophia Gerloff, 1332 Starling Court, Phone; 425-8999, read letter in opposition from neighbor Edwin Kellam Sara Gerloff, 713 Bobolink Drive, Phone: 425-8999, lifelong resident of Birdneck and Member July 10, 2007 - 53 - Item V-L.2. PLANNING ITEM #56622 (Continued) A MOTION was made by Councilman Wood, seconded by Councilman Uhrin, to ADOPT an Ordinance upon application of CA VALIER GOLF & YACHT CLUB for a Conditional Use Permit re a golf club agronomy facility at Kamichi Court with REVISED Conditions: 1. The site shall be developed in accordance with the submitted plan entitled "Cavalier Golf and Yacht Club Agronomy Center", dated February 22,2007, and prepared by Gallup Surveyors and Engineers. Said plan has been exhibited to the Virginia Beach City Council and is on file in the City of Virginia Beach Planning Department Notwithstanding condition 1 above. The number of parkin'}! spaces shown on the site plan shall be reduced to 3 spaces, which are the 3 spaces shown on the northeast side of the proposed maintenance building for the Superintendent, Assistant Superintendent and the Mechanic. The applicant shall shuttle the wounds keepers and maintenance emplovees to the Agronomv Center bv an electric cart from the Club's main parking lot at the end of Cardinal Drive. 5. Perimeter !-cmdsc6IfJing shaf.! he instaJ.!-cd in oosor-dtfl'lee with the Site Plffl'l Or-dinffl'lee, Section 5A.5 PtH'king let street frontage requirements. Perimeter landscapinz shall be installed on the northern and eastern portions of the Agronomv Center in conformance with Site Plan Ordinance, 95A.5. Thick screeninz landscaping shall be installed along the exterior portions of the Agronomv Center that abut lots 36, 37 and 38 as shown on the Site Plan. The applicant shall work with the plannin'}! staff and the owners of these 3 lots to determine the most appropriate type of landscape screeninJ! within this area. 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 - LYNNHA VEN Voting: 5-5 (MOTION LOST TO A TIE VOTE) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf and Ron A. Villanueva Council Members Absent: Robert M Dyer July 10, 2007 - 54 - Item V-L.3. PLANNING ITEM #56623 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council DEFERRED INDEFINITELY, Ordinance upon application of B'NAI ISRAEL for a Conditional Use Permit (approved by City Council on May 29, 1990, and superseded for a church on March 2, 2005) at 620 Baker Road re a commercial recreation facility (bingo hall). ORDINANCE UPON APPLICATION OF B'NAI ISRAEL FOR A CONDITIONAL USE PERMIT FOR A COMMERCIAL RECREATION FACILITY (BINGO HALL Ordinance upon application of B 'Nai Israel for a Conditional Use Permit for a commercial recreation facility (bingo hall) on property located at 620 Baker Road (GPIN 1468218226). DISTRICT 2 - KEMPSVILLE Voting: 9-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Harry E. Diezel and Robert M Dyer July 10, 2007 - 55 - Item V-L.4. PLANNING ITEM #56624 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED an Ordinance upon application of SHORE DRIVE PARASAILING, INC., for a Conditional Use Permit: ORDINANCE UPON APPLICATION OF SHORE DRIVE P ARASAILING, INC. FOR A CONDITIONAL USE PERMIT FOR A RECREATIONAL FACILITY OF AN OUTDOOR NATURE (PARASAILING) R070734229 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Shore Drive Parasailing, Inc. for a Conditional Use Permit for a recreational facility of an outdoor nature (paras ailing) on property located at 3311 Shore Drive (GPINs 1489884455; -4670; -5516; -5487; -6304; -3682; -4699). DISTRICT 5- LYNNHAVEN The following conditions shall be required: 1. The parasailing and water sled/tube riding operation shall meet all requirements and regulations of the United States Coast Guard. 2. There shall be no parasailing or water sled/tub riding operation within the Lynnhaven River. All such activities shall occur within the Chesapeake Bay. 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 Tenth of July Two Thousand Seven Voting: 9-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Harry E. Diezel and Robert M Dyer July 10, 2007 - 56 - Item V-L.5. PLANNING ITEM #56625 Attorney R. E. Bourdon, Phone: 499-8971, represented the applicant Upon motion by Councilman Wood, seconded by Councilman Diezel, City Council MODIFIED Proffer No. 3 upon application of HAC PROPERTIES, LLC to allow low speed motor vehicle sales and ADOPTED an Ordinance upon application of NORMA DIANE PAYNE HEWIT tla ARGO OF TIDEWATERfor a Conditional Use Permitfor motor vehicle sales (low speed vehicles): 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. BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA 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. Property is located at 1763 Princess Anne Road (GPIN 2403916498). DISTRICT 7 - PRINCESS ANNE The following condition shall be required: 1. An Agreement encompassing proffers shall be recorded with the Clerk of Circuit Court. 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) R070734229 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA 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. July 10, 2007 - 57 - Item V-L.5. PLANNING ITEM #56625 (Continued) 1. Sales shall be limited to "low speed vehicles " as defined in 46.2.-100 of the Code of Virginia. 2. The hours of operation shall be Monday through Saturday 9:00 a.m. until 5:00 p.m. 3. There shall be no display of vehicles in the public right-of-way. Vehicles shall also not be displayed on raised platforms anywhere on the site. 4. There shall be no more than three low speed vehicles displayed for sale during the hours of operation. The vehicles shall be parked in an area designated" Vehicle Display Area ". 5. There shall be no outside storage of vehicles, parts or equipment. 6. There shall be no repair of the vehicles on the premises. 7. No additional freestanding signs shall be permitted. 8. Any modifications to the building, including awnings or signs, shall be submitted to the Current Planning Division of the Department of Planningfor approval before installation. 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 Tenth of July Two Thousand Seven Voting: 8-2 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Vice Mayor Louis R. Jones, Reba S. McClanan, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: Barbara M Henley and Mayor Meyera E. Oberndorf Council Members Absent: Robert M Dyer July 10, 2007 CITY OF VIRGINIA BEACH INTER-OFFICE CORRESPONDENCE In Reply Refer To Our File No. DF-6713 DATE: June 12, 2007 TO: Leslie L. Lilley _ I{\l \\ B. Kay Wils~ DEPT: City Attorney FROM: DEPT: City Attorney RE: Conditional Zoning Application: HAC Properties, 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 January 30, 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 FIRST AMENDMENT TO PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS HAC PROPERTIES, L.L.C., a Virginia limited liability company TO (PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS) CITY OF VIRGINIA BEACH THIS AGREEMENT, made this 30th day of January, 2007, by and between HAC PROPERTIES, L.L.C., a Virginia limited liability company, Grantor; and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, Grantee. WITNESSETH: WHEREAS, the Grantor is the owner of that certain parcel of property located in the Princess Anne District of the City of Virginia Beach, Virginia, designated as Parcel "B- 2" containing approximately 3.34 acres and described in Exhibit "A" attached hereto and incorporated herein by this reference said property hereinafter referred to as the II II I "Property"; and WHEREAS, the Grantor has initiated a modification to a conditional amendment to the Zoning Map of the City of Virginia Beach, by petition addressed to the Grantee so as to modify conditions to the Zoning Classification of the Property; and WHEREAS, the Grantor has requested Grantee to permit this modification of the previously proffered Covenants, Restrictions and Conditions dated August 26, 2004 (hereinafter "2004 Proffers"), to reflect amendments applicable to the land use plan on the Property; and WHEREAS, the Grantee's policy is to provide only for the orderly development of land for various purposes through zoning and other land development legislation; and GPIN: 2403-91-6498 PREPARED BY: iJIB SYKIS. Q()UI~DO;\, "''0 ;. n[R(-;9 Ln'\' p (' IJI.!I ,\tL 1 a _ "'" 1 PREPARED BY I1iIIiI \:\'"TC l\[ilP)f)Q\ ~.W..JI...:\.c.~.n.J :\/_Jl, ~iI AfiIRN& LL\'Y, PC WHEREAS, the Grantor acknowledges that the competing and sometimes incompatible development of various types of uses conflict and that in order to permit differing types of uses on and in the area of the Property and at the same time to recognize the effects of change that will be created by the proposed modification of conditions to the zoning, certain reasonable conditions governing the use of the Property for the protection of the community that are not generally applicable to land similarly zoned are needed to resolve the situation to which the application gives rise; and WHEREAS, the Grantor has voluntarily proffered, in writing, in advance of and prior to the public hearing before the Grantee, as a part of the proposed modification to the existing zoning conditions with respect to the Property, the following reasonable conditions related to the physical development, operation, and use of the Property to be adopted, which conditions have a reasonable relation to the proposed modification and the need for which is generated by the proposed modification. NOW, THEREFORE, the Grantor, its successors, personal representatives, 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 element of compulsion or quid pro quo for zoning, rezoning, site plan, building permit, or subdivision approval, hereby makes the follovving declaration of conditions and restrictions which I shall restrict and govern the physical development, operation, and use of the Property and hereby covenants and agrees that this declaration shall constitute covenants running "'lith the Property, which shall be binding upon the Property and upon all parties and persons claiming under or through the Grantor, its successors, personal representatives, assigns, grantees, and other successors in interest or title: 1. Proffer number "3" in the 2004 Proffers is amended to read: 3. When the Property is developed, only the following uses will be permitted: a) b) c) Business studios, offices and clinics; Mini-warehouses; Repair and sales for radio and television and other household appliances and small business machines; Motor vehicle sales; Retail establishments; Laboratories and establishments for the production and repair of eye glasses, hearing aids and prosthetic devices. d) e) f) 2 I I !, PREPARED BY' II 1m '-'''f''- n("'I1:ln,\ 11 .1.!J ~,) Jo.....c~, l:5 }:, n.l, i.J. '. I a . Jjr-l,\ .~ ll-- r" ::> - I 10,-\ '::''''' a 1:\' I...L i .1 !I I 2. All of the terms, conditions, covenants, servitudes and agreements set forth i I in the 2004 Proffers recorded in the Clerk's Office of the Circuit Court of the City of II II Virginia Beach, Virginia, as Instrument #200409020140536, save and except, Proffer 3, as i specifically amended and modified herein, shall remain in force and effect, running ,vith the Property and binding upon the Property and upon all parties and persons claiming under, by or through the Grantor, its heirs, personal representatives, assigns, tenants, and other successors in interest or title. The Grantor further covenants and agrees that: All references hereinabove to the B-2 Business District and to the requirements and regulations applicable thereto refer to the Comprehensive Zoning Ordinance and Subdivision Ordinance of the City of Virginia Beach, Virginia, in force as of the date of approval of this Agreement by City Council, which are by this reference incorporated herein. The above conditions, having been proffered by the Grantor and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, shall continue in full force and effect until a subsequent amendment changes the zoning of the Property and specifically repeals such conditions. Such conditions shall continue despite a subsequent amendment to the Zoning Ordinance even if the subsequent amendment is part of a comprehensive implementation of a new or substantially revised Zoning Ordinance until specifically repealed. The conditions, however, may be repealed, 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 Propeliy at the time of recordation of such instrument, provided that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of an ordinance or a resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee which was advertised pursuant to the provisions of Section 15.2-2204 of the Code of Virginia, 1950, as amended. Said ordinance or resolution shall be recorded along \'\rith said instrument as conclusive evidence of such consent, and if not so recorded, said instrument shall be void. (1) 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 and restrictions, including the authority (a) to order, in writing, that any noncompliance with such 3 PREPARED BY Jm Sv".r<.; Tlc,f;))r,(:.\r : .~ . J...L. TI. L,~ ~.\, II L..,. \')":'\; Y r r\ 'v ~,~ U!J rlt l:.,~; [J( 1..1:. J. ~.c. II 'I II II I I I I conditions be remedied; and (b) to bring legal action or suit to insure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages, or other appropriate action, suit, or proceeding; (2) The failure to meet all conditions and restrictions 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 these provisions, the Grantor shall petition the governing body for the review thereof prior to instituting proceedings in court; and (4) The Zoning Map may show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the Property, and the ordinances and the conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department, and they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and indexed in the names of the Grantor and the Grantee. 4 PREPARED BY 1m Si!KIS flDL'.~~DOX Iii :\,cJIR:V & Lr\~r. E. WITNESS the following signature and seal: STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to wit: Grantor: HAC Properties, L.L.C., a Virginia limited liability company ! / . #.,.... . //.. .... Bu../...../ .'. /;.::/./ /:;:;{::.,. ./ " .,..' i y-,. '" .'/....,.,.,,~;.I'./.~ . ... . ,. 'tIerbert A. Culp~pper, ...........- (SEAL) The foregoing instrument was acknowledged before me this 31st day of January, 2007, by Herbert A. Culpepper, Member of HAC Properties, L.L.C., a Virginia limited liability company, Grantor. /I, / '," I' ..., .., I / j' /-; . I '. I _ Y ;' I ,/ (11'.1~: ;/ My Commission Expires: August 31, 2010 5 PREPARED BY ~.m SYHS. HOURDOX SII :,\~;IR\' & L;::\'Y. p.c EXHIBIT "A" ALL THAT certain lot, piece or parcel of land, with the buildings and improvements thereon situate, lyiHg'and 'being in the City of Virginia Beach, Virginia, and being known, numbered' and designated as. Parcel B-2, as shown on that certain plat entitled, "RESUBDIVISION;: . OF PARCEL B, SUBDMSION OF PROPERTY OF J. W. WHITEHURST (M.'B.. 62, P. 5bA) AND A PORTION OF PARCEL B, SUBDIVISION OF PROPERTY OF WILLARD P. WHITEHURST, et ux (M.B. 124, P. 55) VIRGINIA BRACH, VIRGINIA", dated August 22, 2003, .prepared by Rouse-Sirine Associates, Ltd., which plat is duly recorded in. the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia as Instrument #200312080203441. LESS AND EXCEPT the property conveyed to Charlie E. Gray, Jr., et UK, by Deed of William P. Whitehurst, et ux, dated November 1, 1978 and recorded in the aforesaid Clerk's Office in Deed Book 1844, at Page 342. GPIN: 2403-91-6498 (formerly 2403-91-7652) GPIN: 1494-63-2595 (Part of) Modificationofproffers/HACProperties/Proffer 6 - 58 - Item V-L. 6. PLANNING ITEM #56626 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council APPROVED , Ordinance upon application of BROWN BUILDING CORPORATION for a Modification of Proffers for a conditional rezoning request (approved by City Council on July 13, 1993, and modified on June 13, 2000, November 14, 2000, and February 11, 2003) at 4847 Dolton Drive to allow a childcare facility. ORDINANCE UPON APPLICATION OF BROWN BUILDING CORPORATION FOR A MODIFICATION OF PROFFERS FOR A REQUEST APPROVED BY CITY COUNCIL ON JULY 13, 1993 AND MODIFIED ON JUNE 13, 2000, NOVEMBER 14, 2000 AND FEBRUARY 11, 2003 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Brown Building Corporation for a Modification of Proffers for a request approved by City Council on July 13, 1993 and modified on June 13, 2000, November 14, 2000 and February 11, 2003. Property is located at 4847 Dolton Drive (GPIN 1477205567). DISTRICT 2 - KEMPSVILLE The following condition shall be required: 1. An Agreement encompassing proffers shall be recorded with the Clerk of Circuit Court. 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 Tenth of July Two Thousand Seven Voting: 9-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James 1. Wood Council Members Voting Nay: None Council Members Absent: Harry E. Diezel and Robert M Dyer July 10, 2007 CITY OF VIRGINIA BEACH INTER-OFFICE CORRESPONDENCE In Reply Refer To Our File No. DF-6716 DATE: June 27,2007 FROM: Leslie L. Lilley I ~ ~ B. Kay Wilson~ DEPT: City Attorney TO: DEPT: City Attorney RE: Conditional Zoning Application; Brown Building Corporation The above-referenced conditional zoning application is scheduled to be heard by the City Council on July 10, 2007. I have reviewed the subject proffer agreement, dated February 27,2007 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 AMENDED PROFFER AGREEMENT THIS AGREEMENT made this 27th day of February, 2007, by and between BROWN BUILDING CORPORATION, a Virginia corporation, hereinafter called "Grantor"; and the CITY OF VIRGINIA BEACH, a Municipal Corporation of the Commonwealth of Virginia, hereinafter called "Grantee". The purpose of this agreement is to modify prior Proffer Agreements between the parties hereto dated January 7, 1993, April 21, 2000, August 15, 2000 and November 1, 2002. RECITALS: R-1 The Grantor is the record fee simple owner of the property (the "Property") located in Kempsville District, City of Virginia Beach, Virginia and described in Exhibit "A" hereto and incorporated within this Agreement. R-2 Roda Associates, a Virginia general partnership, ("Roda") predecessor in title to Grantor, previously initiated an amendment to the zoning map of the City of Virginia Beach, Virginia, (the "Zoning Map") by petition addressed to the Grantee, so as to change the zoning classification of the property from R-5D Residential District to Conditional B-2 Business District. This amendment was made pursuant to the terms of the zoning ordinance of the City of Virginia Beach, Virginia adopted April 18, 1988, as amended (the "Zoning Ordinance") and was granted by City Council action on July 13, 1993. In connection with the foregoing, by Agreement dated January 7, 1993, and recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 3242, at Page 2172, Roda did voluntarily offer, in writing, as part of the zoning amendment to the Zoning Map with respect to the Property, certain conditions related to the physical development, operation and use of the Property which was adopted as part of said amendment to the Zoning Map and made applicable to the Property. These conditions were to remain in full force and effect until amended by following the procedures and recording the documents as outlined and required in the Zoning Ordinance. PREPARED BY: ~IB SYKES, llOL'RDON. 1\1lAHmN & Lrvy.P.c. GPIN: 1477-20-5567 1 R-3 Grantor previously initiated three(3) modifications to the conditions of the aforesaid amendment to the Zoning Map referenced in paragraph R-2 above and in connection with the foregoing, by agreements dated the 1st day of April, 2000, the 15th of August, 2000, and the 1st day of November, 2002, and recorded in the Clerk's Office aforesaid in Deed Book 4257, at Page 119; Deed Book 4324, at Page 966; and as Instrument # 200302270029510, respectively, Grantor voluntarily proffered, in writing, as part of the modification of the conditions with respect to the Property, certain conditions related to the physical development, operation and use of the Property which were adopted as part of said modification of the conditions applicable to the Property. These modified conditions were to continue in full force and effect until amended by the procedures and recording the documents as outlined and required in the Zoning Ordinance. R -4 Grantor has initiated another modification of the conditions referenced in Paragraphs R-2 and R-3 above in order to change certain conditions that were previously placed upon the Property in connection with the amendment to the Zoning Map as to the Property. R-5 The Grantee's policy is to provide only to the orderly development of land, for variOUS purposes, including business purposes, through zoning and other land development legislation. R-6 The Grantor acknowledges that competing and sometimes incompatible uses conflict and that in order to permit different uses on and in the area of the Property and at the same time to recognize the effect of the changes and the need for various types of uses, including those listed above, certain reasonable conditions governing the use of the Property for the protection of the community that are not generally applicable to land similarly zoned B-2 are needed to cope with the situation which the Grantor's request for modificatioJl of conditions gives rise to. R-7 The Grantor has voluntarily offered, in writing, in advance of and prior to the public hearing before the Grantee, as part of the proposed modification of the conditions previously attached to the amendment to the Zoning Map with respect to the Property, in addition to the regulations provided for in the existing B-2 zoning district by PREPARED BY: the Zoning Ordinance, the following reasonable conditions related to the physical m syn:s. ROURDON. development, operation and use of the Property to be adopted as part of modification of m AHrnN &.l[\'Y. P.c. the conditions applicable to the Property, which have a reasonable relation to the 2 PREPARED BY: no svns. .BOURDON. DJ A1lf:RN &. LEVY. P.c. modification of the conditions and the need for which is generated by the modification of the conditions. R-8 The conditions outlined in this Agreement have been proffered by the Grantor and allowed and accepted by the Grantee as part of the modification to the conditions and the Zoning Map. These conditions shall continue in full force and effect until a subsequent amendment changes the zoning of the Property; 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 of Grantee, unless, notwithstanding the foregoing, the 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 property at the time of recordation of such instruments; provided further that said instrument is consented to by the Grantee, in writing, as evidenced by 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. WITNESSETH: NOW, THEREFORE, the Grantor, for itself, its successors, personal representatives and assigns, grantees and other successors in title and interest, voluntarily without any requirement by or exaction from the Grantee or its governing body and without any element of compulsion or quid pro quo for zoning, rezoning, site plan, building permit, or subdivision approval, hereby makes the following declaration of amended conditions and amended restrictions which shall restrict and govern the physical development, operation and use of the Property and hereby covenants and agrees that this declaration shall constitute covenants running with the Property, which shall be binding upon the property and upon all parties and persons claiming under or through the Grantor, its successors, personal representatives, assigns, grantees, and other successors in interest or title. 1. Lighting on the property shall be directed inward and not toward surrounding properties. 3 PREPARED BY: ~m SYICrs. ROURDOK I mil AHtR~ Ii l~VY. P.c. I 2. The following uses shall not be permitted on the Property or any improvements constructed thereon: animal hospitals, veterinary establishments, commercial kennels, automobile sales or repairs, automobile service stations, boat sales, borrow pits, bulk storage yards, bulk storage of hazardous chemicals or materials, commercial parking lots or garages or auto storage, drug stores, beauty shops and barber shops, eating and drinking establishments with drive-through windows, funeral homes, grocery stores, liquor stores, mini-warehouses, nightclubs, bars, taverns, dance halls. 3. When the Property is developed, it shall be developed substantially in conformance with that exhibit entitled, "PRELIMINARY LAYOUT PLAN FOR DRS DEVELOPMENT DAY CARE FACILITY", dated 02-14-07, prepared by S.LA. (the "Site Plan"), and the building and improvements will have the architectural features and appearance substantially as depicted on the exhibit entitled, "DRS DEVELOPMENT PROPOSED DAY CARE CENTER", prepared by EYG Architects, P.C. (the "Architectural Rendering"). The Site Plan and Architectural Rendering have been exhibited to the Virginia Beach City Council and are on file with the Virginia Beach Department of Planning. 4. Category IV landscaping shall be installed on the northeast side of the property as required by the landscape ordinance. 5. The conditions set forth herein supersede all conditions contained in the previous Proffer Agreements between the parties as hereinabove recited. 6. The Grantor covenants and agrees that: a. 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 and restrictions, including the authority (a) to order in writing that any non-compliance with such conditions be remedied and (b) to bring legal action or suit to insure compliance with such conditions including mandatory or prohibitory injunction, abatement, damages or other appropriate action, suit or proceedings. b. Failure to meet all conditions and restrictions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate. 4 c. If aggrieved by any decision of the Zoning Administrator made pursuant to these provisions, the Grantor shall petition the governing body of Grantee for the review of such decision prior to instituting proceedings in court. d. Further conditions may be required during detailed Site Plan review and administration of applicable City codes by all cognizant City agencies and departments to meet all applicable City code requirements. e. The Zoning Map shall show, by an appropriate symbol on the map, the existence of conditions attaching to the zoning of the Property on the map and that the ordinance and the conditions may be readily available and accessible for public inspection at the office of the Zoning Administrator and in the Planning Department 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 the Grantee. PREPARED BY; ~m SYn:s. BOURDON. m Al.1tRN & Lm. P.c. 5 WITNESS the following signature and seal: Grantor: Brown Building Corporation, a Virginia corporation By: pf)k~ Ronald K. Brown, President (SEAL) STATE OF VIRGINIA) ). \ li ~ CITYjCOUNlY of'-'l/crCii'()I 0- . .v...f , to-wit: J . I, j ~ J. a Notary Public in and for the City and State aforesaid, do hereby certify th Ronald K. Brown, President of Brown Building Corporation, a Virginia corporation, whose name as such is signed to the foregoing instrument bearing date on the 2~ day of February, 2007, has acknowledged the same before me in my said City and State. ~ ~ GIVEN under my hand this ,~! day of Februa ,2007. My Commission Expires: 1 ~1 07 6 PREPARED BY: '-'13 SYKIS. gOrRDD~. mil r\J..l~R:; & LIvy. P.C EXHIBIT "A" ALL THAT certain lot, piece or parcel of land, with the buildings and improvements thereon, lying, situate and being in the City of Virginia Beach (formerly Princess Anne County), Virginia, in Kempsville Magisterial District, and being the northeast corner of Lot Six (6), as shown on the map of A.W. Cornick's Kempsville Subdivision, dated January, 1990, also being known and designated as "Joseph Mosley", as shown on the Map Book A.W. Cornick's Kempsville Farm, Kempsville Borough, Virginia Beach, Virginia", and is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 48, at Page 43 is more particularly bounded and described as follows: BEGINNING at a point on the southern line of Eastern Shore Road to Kempsville on the line between Tracts Four (4) and Six (6) and running thence in a southerly direction along said dividing lie between the two said tracts one hundred seventy-six (176) feet; thence in a westerly direction two hundred nineteen (219) feet; thence in a northerly direction and parallel to the dividing line between Tracts Four (4) and Six (6) two hundred eighteen (218) feet to the Eastern Shore Road to Kempsville One hundred sixty (160) feet to the point of beginning. LESS AND EXCEPT that property to City of Virginia Beach in Deed Book 2812, at Page 673, dated March 20, 1988; corrected in Deed Book 2896, at Page 376. GPIN: 1477-20-5567 ModConditions IBrownBuilding/DoltonDrive/Proffer 7 - 59 - Item V-L.7. PLANNING ITEM #56627 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council DEFERRED INDEFINITELY Ordinance upon application of AGC ACQUISITION, L.L.C. for a Change of Zoninf! District Classification from AG-2 Agricultural District to Conditional B-4 Mixed Use District: ORDINANCE UPON APPLICATION OF AGC ACQUISITION, L.L.c. FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM AG-2 AGRICULTURAL DISTRICT TO CONDITIONAL B-4 MIXED USE DISTRICT Ordinance upon application of AGC Acquisition, L.L.c. for a Chanf!e of Zoninf! District Classification from AG-2 Agricultural District to Conditional B-4 Mixed Use District on property located at 1291 Nimmo Parkway (GPIN 2414161683). DISTRICT 7 -PRINCESS ANNE Voting: 9-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Harry E. Diezel and Robert M Dyer July 10, 2007 - 60- Item V-M..l. APPOINTMENTS ITEM #56628 Upon NOMINATION by Council Lady Wilson, Council APPOINTED: Frederick J. Napolitano, Jr. Nancy K Parker No Term BLUE RIBBON TAX, FEE and SPENDING TASK FORCE Voting: 8-0 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M Dyer, John E. Uhrin and Ron A. Villanueva July 10, 2007 - 61 - Item V-O. ADJOURNMENT ITEM # 56629 Mayor Meyera E. Oberndorf DECLARED the City Council Meeting ADJOURNED at 9:10 P.M. (J1~--~_!__t:~~(~ Beverly t5,' Hooks, CMC Chief Deputy City Clerk ~ th Hodges Fraser, MMC City Clerk Meyera E. Oberndorf Mayor City of Virginia Beach Virginia The Public Comment Session adjourned at 9: 52 P.M. July 10, 2007 - 62- OPEN DIALOGUE Non Agenda Items Dan Majkut, 2109 Croydon Court, Phone: 427-1760, represented the residents of Croydon Court, and advised he had presented the Traffic Division a petition for "head-in" parking at Croydon Court (cul-du-sac). There are six (6) homes in the area and eighteen (18) vehicles are normally parked there. They recently received another Summons for parking. Charles Meyer, Chief Operating Officer, and staff will meet with the residents. The following expressed concerns re the Employee Benefits Review Task Force recommendations: Janice Melton, 600 Mango Drive, Phone: 729-1949, employee of Human Services. Said statement is hereby made a part of the record. Dreda McCreary, 804 Lord Leighton Court, Phone: 496-8019, City's Mosquito Control Biologistfor twenty-eight plus (28+) years.. Statement is hereby made a part of the record. David Hughes, 6396 Blackwater Road, retired Virginia Beach Police Officer (January 2006) after twenty-nine (29) years of service.s Howard Carr, 1160 Eagle Way, Phone: 233-8117, retired City employee, Fire Department Betty Albanese, 2240 Ebb Tide Road, Phone: 496-0940, thirty-five (35)-year employee of Social Services July 10, 2007