OCTOBER 9, 2007 MINUTES
CITY OF VIRGINIA BEACH
"COMMUNITY FOR A LIFETIME"
CITY COUNCIL
MAYOR MEYERA E. OBERNDORF, At-Large
VICE MAYOR LOUIS R. JONES, Bayside - District 4
WILLIAM R. DeSTEPH, At-Large
HARRY E. 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 ~ District 6
RON A. VILLANUEVA, At-Large
ROSEMARY WILSON, At-Large
JAMES L. WOOD, Lynnhaven -District 5
CITY COUNCIL AGENDA
CITY MANAGER - JAMES K. SPORE
CITY ATTORNEY - LESLIE L. LILLEY
CITY CLERK - RUTH HODGES FRASER, MMC
09 OCTOBER 2007
CITY HALL BUILDING
2401 COURTHOUSE DRIVE
VIRGINIA BEACH, VIRGINIA 23456-8005
PHONE:(757) 385-4303
FAX (757) 385-5669
E-MAIL: Ctycncl@vbgov.com
I.
CITY MANAGER'S BRIEFINGS
- Conference Room
3:00 PM
A. SANDLER CENTER MANAGEMENT AGREEMENT
Emily Spruill, Director - Cultural Affairs
Patricia Phillips, Director - Finance
B. CELL TOWERS
William J. Whitney, Director - Planning
Stephen J. White, Planning Evaluation Coordinator
C. NOISE ORDINANCE
Mark Stiles, Deputy City Attorney
II CITY COUNCIL COMMENTS
III AGENDA REVIEW
IV INFORMAL SESSION
- Conference Room
5:30 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 Thomas Powell
Calvary Chapel of Virginia Beach
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
October 2, 2007
G. AGENDA FOR FORMAL SESSION
H. PUBLIC HEARING
1. 15th STREET PIER - Proposed Franchise
1.. CONSENT AGENDA
J. RESOLUTION/ORDINANCES
1. Resolution re an Operating Agreement for the Performing Arts to AUTHORIZE the
City Manager to execute the necessary documents with the SANDLER CENTER
2. Resolution requesting Members of the City's local General Assembly Delegation sponsor
and/or support legislation that will realize the goals and objectives set forth in Virginia Beach's
2008 Community Legislative Agenda
[deferred September 11, 2007]
3. Ordinance to GRANT a FRANCHISE to ENTERTAINMENT, INC. for the use of City
property at the Oceanfront and 15th Street re the operation of the Virginia Beach Fishing Pier.
4. Ordinance to AUTHORIZE the Commonwealth's Attorney to ACCEPT additional
positions from the State Compensation Board; APPROPRIATE $327,330 in additional
State revenue; and, TRANSFER $145,212 from the General Fund Reserve for Contingencies
to their FY 2007-8 Operating Budget
K. PLANNING
1. Variance to S 4.4(b) ofthe Subdivision Ordinance that requires all newly create ad lots meet
the requirements of the City Zoning Ordinance (CZO) for PYONG TU CHO at 1212 North
Inlynnview Road to subdivide the existing two lots and develop a new lot with a single
family dwelling. (deferred indefinitely by City Council on January 9,2007 and August 14,
2007)
DISTRICT 5 - L YNNHA VEN
RECOMMENDATION
DENIAL
2. Application ofCH&B ASSOCIATES, L.L.P. re a conceptual Site Plan addressing the site
and building design elements consistent with the existing commercial designation at the
Northeast corner of Princess Anne Road and South Plaza Trail in accordance with proffers
previously approved by City Council on September 9, 2003.
DISTRICT 2 - KEMPSVILLE
RECOMMENDATION
APPROV AL
3. Application of COLLEGE PARK, L.L.c. for a Modification of Proffers to cover the
parking spaces with a "carport" and add a maintenance structure at 6226 Providence Road
(approved by City Council on January 23,2007).
DISTRICT 1 - CENTERVILLE
RECOMMENDATION
APPROVAL
4. Application of ST. MICHAEL LUTHERAN CHURCH for a Modification of Conditions
to enclose the existing storage and picnic shelter at 2208 Princess Anne Road (approved by
City Council on April 25, 1988).
DISTRICT 7 - PRINCESS ANNE
RECOMMENDATION
APPROV AL
5. Application of VICTORIOUS LIVING CHURCH for a Conditional Use Permit re a
church at 2180 McComas Way, Suite 113.
DISTRICT 7 - PRINCESS ANNE
RECOMMENDATION
APPROVAL
6. Application of WILLIE DONALD MARTIN, JR. for a Conditional Use Permit re an
auto repair garage at 1128 Barrs Road.
DISTRICT 4 - BA YSIDE
STAFF RECOMMENDATION:
RECOMMENDATION
INDEFINITE DEFERRAL
APPROVAL
7. Application of RAPP AHANNOCK SPORTS, L.L.C. for a Conditional Use Permit re an
indoor recreation facility at the Southeast intersection of Holland Road and Warwick Drive.
DISTRICT 6 - BEACH
RECOMMENDATION
APPROV AL
8. Application of CINGULAR WIRELESS for a Conditional Use Permit re a communication
tower, antennas and equipment building at 4021 Charity Neck Road.
DISTRICT 7 - PRINCESS ANNE
RECOMMENDATION
APPROV AL
9. Application of GREG SMITH for a Conditional Use Permit re a home occupation (making
and selling glass head pendants in the garage) at 594 Van Buren Court.
DISTRICT 3 - ROSE HALL
RECOMMENDATION
APPROV AL
10. Application of MATHEWS GREEN ASSOCIATES, L.L.C. for a Change of Zoning
District Classification from R-20 Residential District with a PD-H2 Overlay to P-l
Preservation District at 2217 Mathews Green. [Conditional Zoning approved with
Proffers August 22, 2006]
DISTRICT 7 - PRINCESS ANNE.
RECOMMENDATION
APPROV AL
11. Application of KOTARIDES DEVELOPERS for a Change of Zoning District
Classification from B-2 Community Business District to Conditional A-24 Apartment
District re rental apartments within twelve buildings at 920 South Military Highway.
DISTRICT 1 - CENTERVILLE
RECOMMENDATION
APPROVAL
L. APPOINTMENTS
WORKFORCE HOUSING ADVISORY BOARD
M. UNFINISHED BUSINESS
N. NEW BUSINESS
O. ADJOURNMENT
CITYWIDE TOWN MEETINGS
Octoher 16,2007
Virginia Beach Convention Center - 7:15 pm
FY 2008-2010 Budget
Location to he Announced -7:15 pm
Swrmwa~rPfflnsandFundmg
January 15, 2008
CITY COUNCIL's WORKSHOP
16 OCTOBER 2007
CANCELLED
[IN LIEU OF THE CITY-WIDE TOWN MEETING]
*********
If you are physically disahled or visually impaired
and need assistance at this meeting,
please call the CITY CLERK'S OFFICE at 385-4303
**********
Agenda 1O/09/07/gw
www.vbl!ov.com
- 1 -
MINUTES
VIRGINIA BEACH CITY COUNCIL
Virginia Beach, Virginia
October 9, 2007
Mayor Oberndorf called to order the CITY MANAGER'S BRIEFING Fe SANDLER CENTER
MANAGEMENT AGREEMENT in the City Council Conference Room, City Hall, on Tuesday, October
9, 2007, at 3:00 P.M
Council Members Present:
William R. "Bill" DeSteph, Robert M Dyer, 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:
Harry E. Diezel
[Entered: 5:28 P.M
Delayed in meeting]
October 9, 2007
- 2 -
CITY MANA GER'S BRIEFING
SANDLER CENTER MANAGEMENT AGREEMENT
3:00 P.M.
ITEM # 56912
Dorothy L. Wood, Vice Chair, Sandler Center for the Peiforming Arts Foundation and Chair - Citizens
Committee, she was advised also representing the Chair of the Foundation - Linwood 0. Branch, III
Ms. Wood was proud to work with Mr. Branch over the past few years. Mrs. Wood expressed
appreciation for having a small part in the "birth" of the Sandler Center. Art and Steve Sandler not only
provided the $5-MILLION to commence the project but have assisted in securing many of the
contributions.
Emily Spruill, Project Director - Sandler Center for the Performing Arts Theatre, provided the status
report.
Project Status
Achievements:
Received over $14. O-MILLION in cash & pledges
Current fundraising to build endowment for education and performances
Strong subscription and ticket sales
Upcoming Events:
November - Grand Opening Month
Dedication Ceremony - November 1, 2007 at 10:30 a.m.
Opening Night with Itzhak Perlman - November 3, 2007 at 7:30 p.m.
Construction is 99% complete. The staff moved into the building and the box office should open next
week. They are currently installing theatrical/acoustical drapes and curtains. Touches to woodwork and
metal rails are beingfinished.
Request For Proposal (RFP) Selection process
. Selection Committee made up of volunteers from the Theatre Advisory Committee, Virginia
Beach Peiforming Arts Center Foundation and City Staff
· RFP Issued on April 4, 2005
· Interviewed those making proposes
Involved local arts organizations
. Established criteria by which City will preserve booking priorities for local arts groups
. In August 2006, City Council was briefed on Committee recommendations and entered into the
Pre- Opening Services Agreement with Global Spectrum
Global also operates the Ted Constant Center for Old Dominion University. Ms. Spruill outlined the
Booking Policy:
. Purpose: to maintain maximum utilization and to provide fair and equitable availability
· First Priority:
1. In-house productions for maximum revenue potential
2. Resident organizations
3. Great Performers Series
· Second Priority:
1. Established Regional Arts Groups and Former Tenants of Pavilion Theatre
· Third Priority:
1. Community Organizations and Events
October 9, 2007
- 3 -
CITY MANA GER'S BRIE FING
SANDLER CENTER MANAGEMENT AGREEMENT
ITEM # 56912 (Continued)
Global Spectrum selected:
. Extensive facility management experience
. Extensive booking experience - established contacts
Does not add numerous, permanent City staff
. Corporate competitive advantage - numerous facilities for multiple bookings
Extensive facility management experience
· Established software systems
Ms. Spruill introduced Doug Higgons, Regional Vice President - Global Spectrum. Mr. Higgons
referenced Global Spectrum is a subsidiary ofComcast-Spectacor
.
Comcast-Spectacor owns
Wachovia Center and Spectrum
NHL Phildelphia Flyers
NBA Philadelphia 76ers
AHL Philadelphia Phantoms
***2005 Calder Cup Champions
Flyers Skate Zone
Comcast SportsNet
Ovations Food Services
New Era Tickets
October 9, 2007
-4-
CITY MANAGER'S BRIEFING
SANDLER CENTER MANAGEMENT AGREEMENT
ITEM # 56912 (Continued)
Mr. Higgons stipulated the Theatrical Experience and Global has the best relationships in the industry.
Seven (7) Global Spectrum managed facilities present theatrical events on a regular basis:
FARGODOME -Gate City Bank Theatre (4,200 seats)
John Labatt Centre -RBC Theatre (2,800 seats)
Old Dominion University Ted Constant Convocation Center/Theatre - theatrical set-up (4,000
seats)
Portland Rose Quarter -Theatre of the Clouds (6,300 seats)
Sovereign Bank Arena - theatrical set-up (3,500 seats)
Temple University Liacouras Center -Ester Boyer Theatre (1,960 seats)
University of Massachusetts Mullins Center - theatrical set-up (4,000 seats)
Global Spectrum will be the contracting entity with the City of Virginia Beach. The Virginia Arts
Festival will be a sub-contactor of Global Spectrum. The Virginia Arts Festival will take the leading role
in the programming and marketing of the Grand Opening and the creation of an annual series featuring
nationally recognized artists. Global Spectrum will take the leading role in the day-to-day operation of
the building. Rob Cross, Executive Director - Virginia Arts Festival, was unable to attend.
Virginia Arts Festival was founded and incorporated in December 1995. The first full season was in the
Spring of 1997. Mr. Higgons stated the Virginia Arts Festival's Mission:
Present the world'sfinest performing artists in cities throughout
Southeastern Virginia
Enrich the lives of Hampton Roads children through the arts
Promote the Hampton Roads region as a rising cultural destination
throughout the Mid-Atlantic in order to generate cultural tourism and its
resulting positive economic impact on the area
Mr. Higgons referenced the excitement of the Inaugural Season and the Grand Opening Events (Itzhak
Perlman, Tony Bennett, Bonnie Raitt, Pat Metheny, Virginia Symphony). To date, approximately 8,000
tickets have been sold. Global has reachedfifty percent (50%) of their budgeted goal for these events.
Patricia Phillips, Director of Finance, reviewed the contracts with Global Spectrum, L.P.
Pre-Opening Services
Performed Through October 2007
. Reviewed facility design & construction
~ Hardware schedules, interior finish schedules, graphics and signage, recommend
FF &E, coordinate transitions from construction project to operating facility
. Fine tuned operating pro-formas
. Developed operating & maintenance manual
. Booked & scheduled events (as outlined in Booking Policy)
. Developed reporting system & accounting systems
. Developed marketing plan & advertising campaign
. Planned Grand Opening events
· Hired staff
October 9, 2007
- 5 -
CITY MANA GER'S BRIEFING
SANDLER CENTER MANAGEMENT AGREEMENT
ITEM # 56912 (Continued)
Pre-Opening Services Management Fee: (April 2006 - October 2007) totaled: $111,000
Mrs. Phillips extended appreciation to the City Attorney, Leslie L. Lilley, and Aimee Knapp, Associate
City Attorney, for their dedicated efforts concerning this contract.
Mrs. Phillips itemized the Management Contract and the "Day-to-Day" Administrative responsibilities.
. Promote, operate and manage all aspects of Sandler Center
. Book and schedule events (as outlined in Booking Policy)
. Provide day-to-day administrative services
. Execute marketing plan, advertising campaign and materials
. Maintain ongoing community relations and exposure
Maintain detailed, accurate financial and other records
Submit monthly reports to City
· Manage & operate concessions
· Ticket sales (held in trust)
. Comcast-Spectacor guarantees Global Spectrum's performance
. Employ, supervise and direct all of Global Spectrum employees
· Manage procurement
Purchasing
· Payroll
· Fire prevention
Security and crowd control
· Traffic management
· Parking management and coordination
Routine repairs
· Preventative maintenance
· Janitorial and housekeeping services
Energy conservation
· Admission procedures
. Accommodate the needs of the mobility impaired and handicapped patrons
Ticket Sales Non-Resident Organizations
Ticket sales held in trust until settlement after each event
Protects ticket buyers
· Protects City
Ticket Sales Resident Organizations
· Ticket sales will be held by Resident Organizations
· Symphonicity (Virginia Beach Symphony)
· Virginia Arts Festival
· Virginia Beach Chorale
· Virginia Beach Forum
· Virginia Musical Theatre
· Virginia Symphony
This enables these long-standing groups to operate, pay employees, etc.
CITY MANAGER'S BRIEFING
October 9, 2007
- 6-
CITY MANA GER'S BRIEFING
SANDLER CENTER MANAGEMENT AGREEMENT
ITEM # 56912 (Continued)
City's Rights and Responsibilities
City's Rights:
. Monthly reporting and oversight by City's Contract Administrator
. Annual report to City Council through City Manager
· Periodic reports through Council Liaisons
· Office space for City staff
· Use of Center by City & Schools
City's Responsibilities:
· Capital needs
· Net operating costs & management fee
TOTAL
ESTIMATED
COSTS
~~J_~~~fJ~j~f r
Ml~_~~
Pre-Opening Contract and Management Contract Costs
Net Revenue N/A $ 717,366 $ 767,581
Management Fee. $ 87,000 $ 152,000.. $ 197,760
Estimated Incentive Fee N/A $ 48,651 $ 31,570
Total Operating $ 212,944 $ 1,796,720.** $1,719,009
Expenses
Operating Loss $ 299,944 $ 1,280,005 $1,180,758
$ 790,609
$ 203,693
$ 32,517
$ 1,758,579
$1,204,180
* Adjusted annually applying consumer price index.
** Includes both pre-opening and operating management fees.
*** Includes both pre-opening and operating expenses.
Capital reserves may be necessary.
October 9, 2007
- 7 -
CITY MANA GER'S BRIEFING
SANDLER CENTER MANAGEMENT AGREEMENT
ITEM # 56912 (Continued)
ESTIMATED
INCENTIVE FEE*
FY09: 1st Full Operating Year
12% of F&B Revenue over $100,000
12% of ValellParking Revenue
12% of Reimbursed Expenses/Markup
12% of Box Office Rebate Revenue
12% of Gross Sponsorship over $100,000
$ 12,521
$ 4,036
$ 635
$ 2,287
$ 5,911
$ 6180
$ 31,570
12% of Combined Rental Revenue over $250,000
* Incentive fee is contingent on Global Spectrum achieving in each operating
year the aggregate budgeted revenue from the operating revenue categories
on which the incentive fee is calculated.
In addition to rental income and ticket sales, Sandler Center will generate the following additional
revenue streams to the General Fund:
City Admission Tax
(10%)
City Facility Fee *
150,440
$160,971
$ 165,800
Total
$339,385
$ 363,143
$ 374,037
*$1-$2 included in ticket price
*Request has been submitted to Commonwealth of Virginia for $300,000 to offset operations
Coming Attractions
. October 9,2007: City Council approves Operating Agreement and authorizes the City Manager
to execute Operating Agreement
. November 1, 2007 at 10:30 a.m.: Dedication Ceremony
November 3,2007 at 7:30 p.m.: Opening Night with Itzhak Perlman
www.sandlercenter.org
October 9, 2007
- 8 -
CITY MANA GER'S BRIEFING
SANDLER CENTER MANAGEMENT AGREEMENT
ITEM # 56912 (Continued)
Mr. Higgons advised there is no charge for parking; however, Valet Service will be available.
Ms. Spruill advised the Sandler Center for the Performing Arts will have 148 performance days
The City Manager advised the City has requested $300,000 in funding from the State. Information re
funding provided to the Chrysler Museum shall be provided.
October 9, 2007
- 9 -
CITY MANA GER'S BRIEFING
CELL TOWERS
ITEM # 56913
3:44 P.M.
Jack Whitney, Director - Planning, advised cell phones have changed the way people work and live, as
well as the landscape. To ensure the operation of the cell phones requires a fairly extensive
infrastructure (towers, antennas and related equipment.). Currently there are one hundred thirty-eight
(138) active cell towers, with five (5) more under consideration. These towers require a Conditional Use
Permit. Mr. Whitney advised members of the cell phone industry are also in attendance to respond to
City Council inquiries
Stephen J White, Planning Evaluation Coordinator, itemized thefour (4) main points:
· CITY REGULATION
What do we require?
What are the criteriafor evaluation?
LOCATIONS
APPLICATION INCREASE
Demand
Funding
911
. ALTERNATIVES / STEALTH
LOCATIONS/STEALTH
City Regulation
. Section 232 of the City Zoning Ordinance provides the standards to be used in evaluating Use
Permit applications for communication towers.
. Federal Telecommunications Act of 1996 places limitations on what the City can consider in
determining whether to approve a Use Permit for a tower.
City Regulation of Towers
An Application must include:
Site plan drawn to scale with details of tower, buildings, fencing and landscaping
Report from a registered structural or civil engineer as to the tower construction
Statement from a registered engineer that the NIER (nonionizing electromagnetic
radiation) does not exceed the lowest exposure standard established by the federal
government.
Satisfactory evidence from the applicant of the lack of space on suitable existing
towers, buildings, or other structures
October 9, 2007
- 10-
CITY MANA GER'S BRIEFING
CELL TOWERS
ITEM # 56913 (Continued)
· Requirements:
Side and rear yard setback are 50 feet in Residential and Agricultural Districts and 25
feet in all other Zoning Districts
No tower may be located closer to an existing residential structure than the distance
equal to one hundred twenty-five (125) percent of the total height of the tower and all
antennae
Towers must be painted and illuminated in accordance with FAA regulations
Landscape plantings must be provided, with the type, size and location dependent on
the type and height of tower
Mr. White displayed an example of a map re a cell tower, which had been proposed, but not approved.
These maps are required to assure there is a need for a tower in a certain location.
Mr. White displayed a map of Existing Towers. The "blue" dots indicated proposed tower applications.
Concerning co-locations, Mr. White displayed a very large map by COMIT (Communications and
Information Technology). This map also contains the water towers within the City, some of which have
antennas. Eighty (80%) to ninety percent (90%) are co-located. Monopoles are utilized for a specific
user (filling in a gap) i.e the Little Neck Swim and Racquet Club monopole. All of the City water towers
do not currently have cell phone antennas. Councilman DeSteph believes because of the height of the
water towers, utilization of these towers for cell phones would eliminate other cell phone towers. Mr.
White advised concerns of the Director - Public Utilities, re maintenance and security issues. Concerning
cell phone towers resembling trees, he advised the majority of the trees in the City are up to 80 feet tall.
These towers, made to look like trees, are almost 200 feet tall. Thus, with the City's flat topography, the
"cell tower trees" will be very much taller than all the other trees.
October 9, 2007
- 11 -
CITY MANA GER'S BRIEFING
CELL TOWERS
ITEM # 56913 (Continued)
Councilman DeSteph referenced correspondence from Glen Knutson, which is hereby made a part of the
record. Mr. Knutson stated co-location should be practically mandatory with it being cheaper for them
to build towers than lease space. Said letter is hereby made a part of the record. Mr. White advised a cell
phone provder submitting an application has always expressed preference to a location enabling lease of
space. Building a tower is very expensive. Mr. White will review co-location of police towers. COMIT is
concerned with frequencies utilized interfering with 911 and emergency communications.
Council Lady Henley referenced the City's tower on Pleasant Ridge Road is much taller, very unsightly
and extremely visible. Max Bartholomew, Dominion Virginia Power, advised his willingness to work
with the City re utilization of their large new transmission line in the Southern portion of the City. Their
telecommunications division could be the contact. There is much capability within these transmission
lines and substations to cite these facilities.
Mr. White displayed a map re Future towers? (AT & T Wireless Network)
Primary Tower Construction Firms
· Crown Castle International: www.crowncastle.com
· SBA - Site Locator: htto://mao.sbasite.com
. American Tower - Site Locator: www.americantower.comlOasisPublic/Maoooint/default.aso
Increase in Applications
Steadily increasing number of users and more minutes per user
. New equipment to utilize radio spectrum acquired at most recent FCC auction
. Increased demandfor video and services that require high bandwidth (iPhone / AT&T)
. New emphasis on the residential customer ("The Last Frontier')
. Increase infunding (industry recovering from the "Tech Crash" at the end of the 1990s)
Wireless 911
. Over 70% of the population has a cell phone.
Wireless providers are required to ensure cell phones can reach emergency services using 911.
to June 2007)
WIRELESS 911
'BB
TOTAL
9,550
2,120 69,666
WIRE LINE 911 7,430 6,327 7,622
7,521 8,110 8,640
5,650
*Usually, more than one (1) call per incident is reported via wireless -for example, a traffic accident
can result in more than one (1) call.
October 9, 2007
- 12 -
CITY MANA GER'S BRIEFING
CELL TOWERS
ITEM # 56913 (Continued)
Mr. White displayed photographic examples of "Stealth" Alternatives.
Water Towers
The City was one of the first to use municipal water towers for the location of cell antennas.
There have, however, been issues pertaining to maintenance of the antennas and security of our
towers. As a result, we are now discouraging providers from considering the water towers.
. Public Utilities is currently drafting a policy regarding the use of the towers for cell antennas.
Water towers are not a preferred solution.
Mayor Oberndorf advised Public Utilities is reviewing this problem re utilization of water towers with the
Water Task Force.
Attorney Leslie Murphy represented AT and T, and advised there are three (3) active sites originally
planned for water tanks: Witchduck, Shore Drive, and Sandbridge Water Tank.. The Bay Colony Water
Tank is shorter than many of the Water Tanks and has been off limits for a while. The Water Tank on
Great Neck does not have any antennas. Each carrier requires at least a 12 x 20 space on the ground to
place equipment that operate the antennas on top. Therefore, quite a bit of ground space must be
utilized.
The following Planning Item will be DEFERRED forty-five days, until the City Council Session of
November 27, 2007, to allow Water Tower Policy Briefing by Public Utilities
K.8 Application ofCINGULAR WIRELESSfor a Conditional Use Permit re a
communication tower, antennas and equipment building at 4021 Charity Neck Road.
DISTRICT 7 - PRINCESS ANNE
Mr. White advised re the tall white poles in the City's parks, a couple of cell phone providers have
approached the City re the possibility of locating on these poles. The Department of Parks and
Recreation had indicated they were not interested. Mr. White believes this might also be a security
issue.
The City Manager believes the Cell Tower Policy is pushing co-location to the maximum extent possible
and was surprised City departments were not co-operating.
October 9, 2007
- 13 -
CITY MANAGER'S BRIEFING
NOISE ORDINANCE
4:48 P.M.
ITEM # 56914
Associate City Attorney Mark Stiles advised the purpose of the presentation is to provide an ordinance
revising the noise regulations in the City. The City has had a Noise Ordinance since the early 1980 'so
Existing Ordinance
. Section 23-47
. Objective or "reasonable man" standard
. Utilized extensively throughout Virginia, in mostly smaller and more rural jurisdictions
. Has been sustained against numerous court challenges, but challenges continue
. Difficult to enforce because there are no specific factors defining violation
Deputy City Attorney Mark Stiles advised the proposed ordinance is based on a model ordinance
prepared by the International Municipal Lawyers Association (IMLA) with certain changes made to
address unique characteristics of Virginia Beach. Changes are intended to retain "reasonable man"
standard while providing additional information to citizens, law enforcement and the courts to aid in
compliance, enforcement and conviction decisions
Decibel Meters
. Proposed ordinance does not include decibel limits as a standard for determining violations
. Most citizens do not have decibel meters and would not know when their conduct violated the
ordinance
. Police department does not favor use of decibel meters
. Decibel meters cannot readily differentiate between sound sources, leading to enforcement
difficulty
. Costs: purchase of decibel meters, ongoing calibration for use in court, ongoing training and
certification of officers
. Decibel limit ordinances also have been susceptible to attack in the courts
There are two (2) separate provisions in the Proposed Noise Control Standards (General Prohibition
utilizing reasonable man standard (* 23-67) and Specific Prohibitions (* 23-68)
Proposed Section 23-67
(General Prohibition)
(a) No person shall intentionally make, continue, or cause or allow to be made or
continued any unreasonably loud or raucous noise or any noise that unreasonably
disturbs, injures or endangers the comfort, repose, health, peace or safety of
reasonable persons of ordinary sensitivity.
(b) Factors for determining whether a person has violated subsection (a) include, without
limitation:
(1) The proximity of the noise to sleepingfacilities, whether residential or
commercial
(2) The predominate land use of the area from which the noise emanates and of the
area where it is audible
(3) The time of day or night during which the noise occurs
(4) The duration of the noise
(5) Whether the noise is recurrent, intermittent or constant.
October 9, 2007
- 14-
C IT Y MANA G E R <S B R IE FIN G
NOISE ORDINANCE
ITEM # 56914 (Continued)
Changes from Existing Ordinance
. Discontinues use of the term "unnecessary noise, " which is difficult to objectively define and has
been successfully challenged in other courts
. Includes new subsection (b), which identifies specific factors for law enforcement and the courts
to consider when evaluating potentially unreasonable noise
. Factors: proximity to sleeping areas, predominate land use where noise is created and
audible, time of day, duration
Citations could be written under either & 23-67 or & 23-68, but we would expect that the General
Prohibition of & 23-67 would be used primarily in clear cases of loud and raucous noise resulting in
citizen complaints for which no specific category of & 23-68 applied
Penalty
. A first offense under this ordinance would be Class 3 Misdemeanor punishable by a fine of up
to $500
. A second or subsequent offense within one year would be a Class 2 Misdemeanor punishable
by a fine of up to $1,000 and/or a jail term of up to six months
. In addition, the City may seek an injunction against continuing violations of the ordinance
October 9, 2007
- 15 -
C IT Y MANA G E R 'S B R IE FIN G
NOISE ORDINANCE
ITEM # 56914 (Continued)
The Oceanfront has different zonings, a mix of commercial and residential. Councilman Villanueva
believes the ordinance should be crafted towards specific zoning areas. Councilman Villanueva
requested information re the particular areas, i.e. the Oceanfront, concerning statistics re the noise
ordinance and where the majority of tickets are issued in violation. Councilman Villanueva referenced
the noise issue re Hunt Club Forrest Halloween Celebration.
Deputy Chief James A. Cervera, will research and provide the data for City Council's review. However,
the Resort Area does contribute to many of the noise issues, particularly in the Summer months.
Deputy City Attorney Stiles advised typically decibel meter restrictions are based on zoning. Where there
is a mix of uses within a zoning classification, such as the Resort Area (residential and commercial
together), makes the preciseness of the decibel meter limits difficult.
Council Lady Henley advised the decibel meter also has a "down side". What is noise to someone, may
be pleasing to another. Noise has a spill over effect and is not confined to the property on which it occurs.
Council Lady Henley referenced fireworks on private property in the rural area.
Councilman Uhrin does not recommend the decibel level. Councilman Uhrin advisedfour (4) of the parks
providing entertainment at the Resort Area limited to certain hours of operation and does not exceed the
11:00 P.M closing. There may be other opportunities the staff may review in the Specific Prohibitions
(~ 23-68) which could actually identify additional issues.
Council Lady McClanan advised much residential development is being placed in areas where this
residential did not previously exist. Noise problems are resulting from bars nearby and disturbing sleep.
October 9, 2007
- 16 -
CITY COUNCIL COMMENTS
5:28 P.M.
ITEM # 56915
Councilman DeSteph complimented the news article in "The Virginian-Pilot", this morning, October 9,
2007, quoting The Honorable Calvin Coolidge: "Collecting more taxes than absolutely necessary is
legalized robbery".
ITEM # 56916
Councilman Villanueva referenced the significant economic development announcement in the Princess
Anne Commons area re Operation Smile. The announcement will be on Thursday, October 11, at 1:30
P.M., in the Advanced Technology Center's Tech Theater, Room 265.
ITEM # 56917
Council Members DeSteph and Wood, Liaisons to The Virginia Aquarium and Marine Science Center,
referenced the renovations. A more detailed report will be provided later. The Sting Ray Aquarium has
been relocated. The restrooms have been reopened as well as the new gift shop. There are two (2)
cobras, three (3) Komodo Dragons and two (2) alligators. The most important aspect is the Capital
Campaign, and the challenge grant by Michigan based Kresge Foundation. The Kresge Foundation
issued the $650,000 challenge to help the Aquarium's Foundation complete its $27.3-MILION Capital
Campaign begun in 2004.
ITEM # 56918
Council Lady Wilson advised Friday morning, October 5, 2007, Councilman Barclay C. Winn called
and inquired if Virginia Beach would work with the City of Norfolk concerning non-smoking in Virginia
Beach's restaurants as proposed in Norfolk.. Council Lady Wilson advised support of the Virginia Beach
Restaurant Association and the Resort Advisory Commission. Council Lady Wilson advised of the
Virginia Code change request - Smoke-Free Restaurants contained in the City's 2008 Community
Legislative Agenda. Virginia Beach's City Charter will not allow this limitation as it is currently written.
Council Lady Wilson advised Mr. Winn that perhaps the City's Legislative Delegation could work with
Norfolk's Delegation to help accomplish this goal. An Affirmation Resolution shall be SCHEDULED for
the City Council Session of October 23, 2007.
Mayor Oberndorf advised the Norfolk restaurant owners do not wish the non-smoking ban adopted, as
they perceive their customers will go to another City to have their meals where smoking is allowed..
ITEM # 56919
Mayor Oberndorf referenced the success of Norfolk's light rail funding. Mayor Oberndorf suggested
light rail be considered as a topic of discussion for City Council's Retreat (November 3 and 4, 2007).
October 9, 2007
- 17 -
AGE N DA REV IE W S E S S ION
5:35 P.M.
ITEM # 56920
BY CONSENSUS, the following items shall compose the CONSENT AGENDA:
J. RESOLUTION/ORDINANCES
1. Resolution re an Operating Agreementfor the Performing Arts to AUTHORIZE the
City Manager to execute the necessary documents with the SANDLER CENTER
2. Resolution requesting Members of the City's local General Assembly Delegation
sponsor and/or support legislation that will realize the goals and objectives set forth
in Virginia Beach's 2008 Community Legislative Agenda, including amendments to
the City c."z6H"wr [deferred September 11, 2007J
3. Ordinance to GRANT a FRANCHISE to ENTERTAINMENT, INC. for the use
of City property at the Oceanfront and 15th Street re the operation of the Virginia
Beach Fishing Pier.
4. Ordinance to AUTHORIZE the Commonwealth's Attorney to ACCEPT additional
positions from the State Compensation Board; APPROPRIATE $327,330 in additional
State revenue; and, TRANSFER $145,212from the General Fund Reservefor
Contingencies to their FY 2007-8 Operating Budget
Council Members DeSteph and McClanan shall vote a VERBAL NAY on Item 2 (2008 Community
Legislative Agenda)
Council Lady Wilson shall ABSTAIN on Item J.3. (Virginia Beach Fishing Pier), pursuant to Section
2.2-3115 (E), Code of Virginia. Entertainment, Inc. is a client of Goodman and Company, an accounting
firm. Her husband is a principal in the firm and personally provides accounting services to
Entertainment, Inc.
October 9, 2007
- 18 -
AGE N DA REV IE W S E S S ION
ITEM # 56921
BY CONSENSUS, the following shall compose the PLANNING BY CONSENT AGENDA:
K. PLANNING
2. Application ofCH&B ASSOCIATES, L.L.P. re a conceptual Site Plan addressing the
site and building design elements consistent with the existing commercial designation at
the Northeast corner of Princess Anne Road and South Plaza Trail in accordance with
proffers previously approved by City Council on September 9, 2003.
DISTRICT 2 - KEMPSVILLE
3. Application of COLLEGE PARK, L.L. C. for a Modification of Proffers to cover the
parking spaces with a "carport" and add a maintenance structure at 6226 Providence
Road (approved by City Council on January 23, 2007).
DISTRICT 1 - CENTERVILLE
4. Application of ST. MICHAEL LUTHERAN CHURCH for a Modification of Conditions
to enclose the existing storage and picnic shelter at 2208 Princess Anne Road (approved
by City Council on April 25, 1988).
DISTRICT 7 - PRINCESS ANNE
5. Application of VICTORIOUS LIVING CHURCH for a Conditional Use Permit re a
church at 2180 McComas Way, Suite 113.
DISTRICT 7 - PRINCESS ANNE
7. Application of RAPPAHANNOCK SPORTS, L.L.C.for a Conditional Use
Permit re an indoor recreation facility at the Southeast intersection of Holland
Road and Warwick Drive. DISTRICT 6 - BEACH
8. Application of CINGULAR WIRELESS for a Conditional Use Permit re a
communication tower, antennas and equipment building at 4021 Charity
Neck Road.
DISTRICT 7 - PRINCESS ANNE
9. Application of GREG SMITH for a Conditional Use Permit re a home
occupation (making and selling glass bead pendants in the garage) at 594 Van
Buren Court.
DISTRICT 3 - ROSE HALL
11, Application of KOTARIDES DEVELOPERSfor a Change of Zoning District
Classification from B-2 Community Business District to Conditional A-24 Apartment
District re rental apartments within twelve buildings at 920 South Military Highway.
DISTRICT 1 - CENTERVILLE
Council Lady Henley shall vote a VERBAL NAY on Item K.2 (CH& B ASSOCIATES, L.L.P)
Item K.8 (CINGULAR WIRELESS) was DEFERRED, BY CONSENT, forty-five (45) days to
November 27, 2007.
Item K. 7 (RAPPAHANNOCK SPORTS, L.L.C.) shall be DEFERRED INDEFINITELY, BY
CONSENT
Council Lady McClanan shall vote a VERBAL NAY on Item Kll (KOTARIDES DEVELOPERS)
October 9, 2007
- 19 -
FORMAL SESSION
VIRGINIA BEACH CITY COUNCIL
October 9, 2007
6:10 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, October 9, 2007, at 6:10
P.M
Council Members Present:
William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer,
Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan,
Mayor Meyera E. OberndorJ, John E. Uhrin, Ron A. Villanueva,
Rosemary Wilson and James L. Wood
Council Members Absent:
None
INVOCATION: Reverend Thomas Powell
Calvary Chapel of Virginia Beach
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.
October 9, 2007
- 20-
FORMAL SESSION
VIRGINIA BEACH CITY COUNCIL
(Continued)
Council Lady Rosemary Wilson DISCLOSED she is a real estate agent affiliated with Prudential Decker
Realty. Because of the nature of Real Estate Agent affiliation, the size of Prudential, and the volume of
transactions it handles in any given year, Prudential has an interest in numerous matters in which she is
not personally involved and of which she does not have personal knowledge. In order to ensure her
compliance with both the letter and the spirit of the State and Local Government Conflict of Interests Act,
it is her practice to thoroughly review the agenda for each meeting of City Council for the purpose of
identifying any matters in which she might have an actual or potential conflict. If, during her review she
identifies any matters, she will prepare and file the appropriate disclosure letter to be recorded in the
official records of City Council. Council Lady Wilson regularly makes this disclosure. Council Lady
Wilson's letter of January 27, 2004, is hereby made a part of the record.
October 9, 2007
- 21 -
Item V-E.
CERTIFICATION OF CLOSED SESSION
ITEM # 56922
The City Council did not conduct a CLOSED SESSION
October 9, 2007
- 22-
Item V-F.1.
MINUTES
ITEM # 56923
Upon motion by Councilman Wood, seconded by Council Lady Wilson, City Council APPROVED the
Minutes of the INFORMAL and FORMAL SESSIONS of October 2, 2007.
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 Abstaining:
Robert M Dyer
Council Members Absent:
None
Councilman Dyer ABSTAINED, as he was ill and not in attendance during the City Council Session of
October 2, 2007.
October 9, 2007
- 23 -
Item V-G 1.
ADOPT AGENDA
FOR FORMAL SESSION
ITEM 56924
BY CONSENSUS, City Council ADOPTED:
AGENDA FOR THE FORMAL SESSION
October 9, 2007
- 24-
Item V-G 2.
MAYOR'S PRESENTATION
ITEM 56925
Mayor Oberndorfrecognized the following Boy Scouts in attendance tofulfill requirementsfor their
Communication and Citizenship in the Community merit badges:
Troop 587
All Saints Episcopal Church
Rick Maynard
Scout Master
Charlie Roberts
Chris Sleg
J. C. Stant
Michael DeSteph
Mayor Oberndorf presented the Scouts with City Seal pins
October 9, 2007
- 25 -
Item V-H.
PUBLIC HEARING
ITEM 56926
Mayor Oberndorf DECLARED A PUBLIC HEARING:
15TH STREET PIER - Proposed Franchise
There being no speakers, Mayor OberndorfCLOSED THE PUBLIC HEARING
October 9, 2007
- 26-
Item v.J.
RESOLUTION/ORDINANCES
ITEM #56927
Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council APPROVED IN ONE
MOTION Resolution/Ordinances 1, 2, 3 and 4 of the CONSENT AGENDA
Voting:
11-0 (By Consent)
Council Members Voting Aye:
William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M
Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E.
Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James
L. Wood
Council Members Voting Nay:
None
Council Members Absent:
None
Council Members McClanan and DeSteph voted a VERBAL NAY on Item 2 (2008 Community
Legislative Agenda)
Council Lady Wilson ABSTAINED on Item J.3. (Virginia Beach Fishing Pier), pursuant to Section 2.2-
3115 (E), Code of Virginia. Entertainment, Inc. is a client of Goodman and Company, an accounting
firm. Her husband is a principal in the firm and personally provides accounting services to
Entertainment, Inc.
October 9, 2007
- 27-
Item V-J.1.
RESOLUTION/ORDINANCES
ITEM #56928
Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED:
Resolution re an Operating Agreement for the Performing Arts to
AUTHORIZE the City Manager to execute the necessary documents
with the SANDLER CENTER
Voting:
11-0 (By Consent)
Council Members Voting Aye:
William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M
Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E.
Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James
L. Wood
Council Members Voting Nay:
None
Council Members Absent:
None
October 9, 2007
1 A RESOLUTION APPROVING AN OPERATING
2 AGREEMENT FOR THE SANDLER CENTER FOR THE
3 PERFORMING ARTS AND AUTHORIZING THE CITY
4 MANAGER TO EXECUTE THE AGREEMENT ON BEHALF
5 OF THE CITY
6
7 WHEREAS, the Sandler Center for the Performing Arts ("SCPA"), a 1200 seat
8 performance hall located in Town Center, is scheduled to open in November 2007;
9
1 0 WHEREAS, following the City's issuance of a request for proposals, a selection
11 committee presented its recommendation to the City Council that the City contract with
12 Global Spectrum, L.P. ("Global") for the operation, programming and maintenance of
13 the SCPA;
14
15 WHEREAS, the City Council agreed with the recommendation of the selection
16 committee and authorized the City Manager to execute a pre-opening services
17 agreement with Global for the operation, programming and maintenance of the SCPA
18 on August 8, 2006; and
19
20 WHEREAS, City staff has worked diligently with Global throughout the last year
21 to negotiate an operating agreement for the promotion, operation, and management of
22 the SCPA when it opens in November 2007; and
23
24 WHEREAS, the City and Global have agreed to the terms of a proposed
25 operating agreement for the SCPA.
26
27 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
28 VIRGINIA BEACH, VIRGINIA THAT:
29
30 The Operating Agreement presented to the City Council and on file with the City
31 Clerk is approved and the City Manager is authorized to execute same on behalf of the
32 City of Virginia Beach.
33
34 Adopted by the City Council of the City of Virginia Beach, Virginia on this .9J:h_
35 day of October, 2007.
APPROVED AS TO CONTENT:
APPROVED AS TO LEGAL
SUFFICIENCY:
~
Office of Itu a Arts
A. Il-,~ 0111 v--
City Attorney' Office
CA10512
September 28, 2007
R2
SUMMARY OF TERMS
Operating Agreement for the Sandler Center
for the Performing Arts at Virginia Beach
Parties:
City and Global Spectrum, L.P., a Delaware limited partnership ("Global")
Purpose:
Global has been selected to promote, manage and operate the Sandler
Center for the Performing Arts ("SCP A").
Term:
3 years; may be renewed for 2 additional I-year periods
Services to be provided by Global pursuant to the Operating Agreement:
· Promote, operate and manage the SCP A.
. Manage the SCP A in accordance with the operations manual, to include
purchasing, payroll, ticketing, fire prevention, security, crowd control, traffic
management, parking management and coordination, routing repairs, preventative
maintenance, janitorial and housekeeping services, energy conservation,
admission procedures, and general user services.
. Procure, negotiate and execute, in its own name and its capacity as manager, all
licenses, agreements, and contracts, and deliver and administer those documents.
. Maintain the SCP A and all fixtures, equipment, systems and materials in the
SCP A.
· Book and schedule events (as outlined in the City's booking policy).
· Provide day-to-day administrative services.
· Employ, supervise and direct all ofSCPA's employees.
· Maintain reporting system and accounting systems.
· Execute marketing plan, advertising campaign and materials.
· Maintain ongoing community relations and exposure.
Cost:
Fixed Fee:
$16,000 per month during initial operating year.
(Thereafter, adjusted annually applying consumer price index.)
Incentive Fee: For each operating year, incentive fee may be paid equal to 12% of
the following operating revenues:
1. Rental Income - theater and rehearsal studio in excess of
$250,000;
2. Net food and beverage sales income in excess of$100,000;
3. Net valet parking revenue;
4. Global's mark-up on expenses reimbursed by users/promoters;
5. Box office rebate revenue; and
6. Advertising sales and sponsorship income in excess of
$100,000.
* Incentive fee is contingent on Global achieving in each operating year
the aggregate budgeted revenue from the operating revenue categories
on which the incentive fee is calculated.
Other Terms:
. City retains ownership of SCP A at all times. City Contract Administrator
has the right to enter the facility to inspect at any time.
. Global shall provide an Annual Plan to the City for each operating year.
Annual Plan consists of marketing plan, market research, marketing
objectives and strategies, booking priorities, targeted events, and
advertising opportunities.
. Global shall provide an annual Operating Budget to the City for year
operating year for operation, management, promotion and maintenance of
the SCP A.
. Global or its affiliate shall be responsible for ticket sales (other than
events sponsored by resident companies). Global shall hold ticket sale
revenues for upcoming events in trust for the protection of ticket
purchasers.
. All personnel operating the SCP A shall be hired by Global and shall be
employees of Global, not of the City.
. Global shall execute user/rental agreements for the use of the SCP A in the
form approved by the City.
. Global indemnifies and holds harmless the City and its employees.
. Global to maintain appropriate levels of insurance coverage.
. Standard non-discrimination, drug free workplace and choice of
law/venue clauses.
. Global shall comply with applicable environmental laws.
. Global shall be permitted to use the name and logo of the SCP A for
purpose of promoting the SCPA, subject to City's approval.
. Global shall comply with City's minority participation requirements.
. Global shall comply with the spending limitations imposed in the City's
approved budget. In the event Global incurs expenditures or commits to
expend sums in excess of amount permitted in the approved budget,
Global is liable for such expenditures.
. Global's parent company, Comcast-Spectacor, L.P., provided a guarantee
of performance to the City that guarantees Global's performance under
this Agreement.
2
OPERATING AGREEMENT
SANDLER CENTER
FOR THE PERFORMING ARTS
A T VIRGINIA BEACH
TABLE OF CONTENTS
ARTICLE I THE FACILITY.........................................................................................................1
ARTICLE II SCOPE OF SERVICES.............................................................................................4
ARTICLE III COMPENSATION................................................... ...............................................8
ARTICLE IV TERM; TERMINATION ........................................................................................9
ARTICLE V OWNERSHIP..... ....................................................................................................1 0
ARTICLE VI ANNUAL PLAN AND OPERATING BUDGET.................................................ll
ARTICLE VII PROCEDURE FOR HANDLING INCOME....................................................... 14
ARTICLE VIII FISCAL RESPONSIBILITy..... ..................... ....... ........ ................ .... .................17
ARTICLE IX CAPITAL IMPROVEMENTS ...... ................... ......... ................................. ......... ..20
ARTICLE X [RESERVED]........................................................................................................ .21
ARTICLE XI PERSONNEL...................................................................................................... ..21
ARTICLE XII AGREEMENT MONITORING AND GENERAL MANAGER........................22
ARTICLE XIII USER/RENTAL AGREEMENTS ......................................................................23
ARTICLE XIV INDEMNIFICATION.........................................................................................23
ARTICLE XV INSURANCE; BONDS........................ .............................................................. .24
ARTICLE XVI COMPLIANCE WITH EQUAL OPPORTUNITY LAWS, REGULATIONS,
RULES AND OTHER LAWS............................................................................................... ...... ..25
ARTICLE XVII PROHIBITION AGAINST CONTINGENT FEES ..........................................25
ARTICLE XVIII FUND IN G CONTINGENCy........................................................................ ..26
ARTICLE XIX PERMITS, LICENSES, TAXES AND LIENS ..................................................26
ARTICLE XX INDEPENDENT CONTRACTOR..................................................................... .26
ARTICLE XXI COMPLIANCE WITH ENVIRONMENTAL LAWS .......................................27
ARTICLE XXII NAME AND LOGOS.............................................................................. .........27
ARTICLE XXIII MINORITY P ARTICIP A TION REQUIREMENTS .......................................28
ARTICLE XXIV TAX EXEMPTION COVENANT - FINANCING DOCUMENTS ...............28
-1-
ARTICLE XXV GUARANTY OF PERFORMANCE ................................................................29
ARTICLE XXVI MISCELLANEOUS........................................................................................29
-11-
OPERATING AGREEMENT
SANDLER CENTER FOR THE PERFORMING ARTS AT VIRGINIA BEACH
This Operating Agreement for the Sandler Center for the Performing Arts at Virginia
Beach ("Agreement") is made as of the _ day of , 2007 ("Effective Date"), by and
between the City of Virginia Beach, a body politic and corporate and political subdivision of the
Commonwealth of Virginia ("City"), and Global Spectrum, L.P., a Delaware limited partnership
("Manager").
RECITALS
WHEREAS, the City has engaged a third party to plan, engineer, design (both exterior
and interior), and construct a twelve hundred seat (1200) professional quality performance hall in
the City of Virginia Beach, Virginia, for concerts, performances and family shows, to be known
as the Sandler Center for the Performing Arts at Virginia Beach ("Facility"); and
WHEREAS, the City has previously engaged Manager to perform certain specified pre-
opening services with respect to the Facility pursuant to a Pre-Opening Services Agreement
dated as ofthe 21 st day of July, 2006 (the "Pre-Opening Agreement"),
WHEREAS, the Pre-Opening Agreement terminates on the date on which the Facility
opens to the general public for an event performance (the "Opening Date"), which date is
expected to be October 1,2007; and
WHEREAS, the City has selected Manager to manage the operations of the Facility
following the Opening Date, and Manager desires to accept such engagement, pursuant to the
terms and conditions contained herein; and
NOW THEREFORE, for and in consideration of the foregoing, the mutual covenants and
promises hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties, intending to be legally bound, hereby
agree as follows:
ARTICLE I
THE FACILITY
Section 1.1. Description of the Facility. All references to the Facility in this
Agreement shall be deemed to include, and Manager's duties hereunder shall cover, the outdoor
performance plazas, lobby areas, performance theatres, lounges, performer support areas,
rehearsal halls, stage support areas, meeting rooms, common areas, executive and other offices,
storage and utility facilities, box offices, and the entrances, grounds, and sidewalks surrounding
the Facility and adjacent thereto, and any other spaces in the Facility.
Section 1.2. Definitions. For the purposes of this Agreement and the various
covenants, conditions, terms and provisions which follow, the definitions and identifications set
forth below are considered to be correct and true and are agreed upon by the parties.
1
"Affiliate" shall mean any entity that directly or indirectly, through one or more
intermediaries, controls or is controlled by Manager. For purposes of this definition, "control"
means the ownership of equity securities or other ownership interests that represent more than
40% of the voting power of the controlled entity. For purposes of this Agreement, any entity
controlled by Manager's parent, Comcast-Spectacor, L.P., or its parent, Comcast Corporation,
shall be considered an "Affiliate" of Manager.
"Annual PIan" has the meaning set forth in Section 6.1 hereof.
"Appropriation Deficiency Notice" has the meaning set forth in Section 7.2 hereof.
"Approved Budget" means any budget submitted by Manager and approved by the City
in accordance with Section 6.2 hereof, as such budget may be amended from time to time in
accordance with the provisions of Section 6.3 and 6.4 hereof.
"Capital Expenditures" means all expenditures for purchases of additional or replacement
furniture, fixtures, machinery, or equipment, the cost of which is in excess of $5,000 and the
depreciable life of which, according to generally accepted accounting principles, is in excess of
one (1) year and any other item of expense that, according to generally accepted accounting
principles, is in excess of $5,000 and not properly deducted as a current expense on the books of
Manager, but rather should be capitalized.
"Cash Flow Shortfall" has the meaning set forth in Section 7.1 hereof.
"City Contract Administrator" shall mean the City Contract Administrator described in
Section 12.1.
"Consumer Price Index" shall mean the average Consumer Price Index for All Urban
Consumers (CPI-U) for the U.S. City Average for All Items for the twelve (12) months
immediately preceding the applicable Operating Year, as published by the Bureau of Labor
Statistics.
"Current Term" means the period beginning on November 1, 2007, and ending on
October 31, 2010.
"Environmental Law" or "Environmental Laws" shall mean any and all federal, state,
local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees or
requirements of any Governmental Authority with jurisdiction over the City or the Facility
regulating, relating to or imposing liability or standards of conduct concerning any Hazardous
Materials or Petroleum Products or environmental protection as in effect at the Effective Date
hereof or at any time in the future.
"Event Operating Account" means the account by that name established pursuant to
Article VII hereof, which account shall consist of two (2) sub accounts designated as the
"Resident Company Subaccount" and the "Non-Resident Company Subaccount."
"Facility Operating Account(s)" means the account(s) by that name established pursuant
to Article VII hereof.
-2-
"Financing Documents" shall mean any of the agreements, instruments or other
documents pursuant to which, or in connection with which, the Tax-Exempt Bonds have or will
be issued to finance a portion of the cost of the construction ofthe Facility.
"Fixed Fee" has the meaning set forth in Section 3.1 hereof.
"Governmental Authority" shall mean any Federal, State, municipal or other
governmental department, commission, board, bureau, agency or instrumentality, or any court, in
each case, of the United States.
"Hazardous Materials" shall mean any hazardous material, hazardous waste, infectious
medical waste, or hazardous or toxic substance defined or regulated as such in or under any
Environmental Law, including, without limitation, materials exhibiting the characteristics of
ignitability, corrosivity, reactivity or extraction procedure toxicity, as such terms are defined in
connection with hazardous materials or hazardous wastes or hazardous or toxic substances in any
Environmental Law.
"Incentive Fee" has the meaning set forth in Section 3.2 hereof.
"Minority-owned Business" or "Minority-owned Businesses" shall mean a business or
other entity that is at least fifty-one (51) percent owned and controlled by one or more socially
and economically disadvantaged person(s). For purposes of this definition, the term "control"
shall mean exercising the power to make policy decisions and being actively involved in day-to-
day management. Such disadvantage may arise from cultural, racial, chronic economic
circumstances or background, or other similar cause. Such persons include, but are not limited
to, Black Americans, Hispanic Americans, Asian Americans, Eskimos, and Aleuts.
"Operating Expenses" has the meaning set forth in Section 8.10 hereof.
"Operating Revenues" has the meaning set forth in Section 8.9 hereof.
"Operating Term" means the Current Term and all Subsequent Extension Term(s), if any.
"Operating Year" means the eight (8) month period of time during which the Facility is
operated commencing on November 1, 2007, and ending on June 30, 2008, each twelve (12)
month period oftime thereafter ending June 30, 2009, and June 30,2010, and the four (4) month
period beginning July 1, 2010, and ending October 31,2010.
"Operations Manual" means that certain existing operations manual for the Facility
developed by Manager and approved by the City, as the same may be amended from time to time
in accordance with the provisions of this Agreement, and which includes, without limitation, a
priority booking policy/schedule for the Facility, a schedule of rates to be charged for the use of
the Facility and a policy on reducing or waiving such rates in appropriate circumstances, and a
description of the process to be used to measure customer satisfaction with the Facility and
Manager's maintenance and operation thereof.
"Petroleum Products" shall mean gasoline, diesel fuel, motor oil, waste or used oil,
heating oil, kerosene and any other petroleum products.
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"Procurement Laws" shall mean the Virginia Public Procurement Act (Va. Code g2.2-
4300 et seq.) and the procurement laws of the City (Virginia Beach City Code Article VI,
Chapter 2).
"Resident Company" shall mean organizations that meet each of the following five (5)
criteria:
1. Be an incorporated, non-profit 501(c)(3) organization.
2. Have a primary activity/mission to produce or present performing arts events that
are open to the public.
3. Have plans to contract for a volume of no less than $5,000 worth of time in the
Facility for one season; or
Have plans to produce or present a season of three (3) or more different
productions with a total of five (5) or more public performances in one season.
4. Market a season ticket. (Season or series ticket meaning a ticket or tickets for
admittance to a predetermined group of events, usually sold at a savings to the
patron and for one seat location.)
5. Be current on payment of all invoices to the Facility and/or such Resident
Company's subcontractors.
Each of the following shall be deemed a Resident Company for purposes of this
Agreement: City of Virginia Beach, City of Virginia Beach Public Schools, Hurrah Players,
Virginia Arts Festival, Virginia Beach Chorale, Virginia Beach Forum, Virginia Beach
Symphony Orchestra, Virginia Musical Theatre, and Virginia Symphony.
"RFP Response" shall mean the Manager's Response dated May 27, 2005, to the City's
Request for Proposal dated April 5,2005.
"Subsequent Extension Term" has the meaning set forth in Section 4.1 hereof.
"Tax-Exempt Bonds" shall have the meaning assigned to such term in Section 24.1
hereof.
"Virginia Arts Festival" or "V AF" shall mean Virginia Arts Festival, Inc.
"Woman-owned Business" or "Woman-owned Businesses" shall mean a business or
other entity that is at least fifty-one (51) percent owned and controlled by a woman or women.
For purposes of this definition, the term "control" shall mean exercising power to make policy
decisions and being actively involved in day-to-day management.
ARTICLE II
SCOPE OF SERVICES
Section 2.1. The City hereby engages Manager to promote, operate and manage the
Facility during the Operating Term upon the terms and conditions hereinafter set forth, and
Manager hereby accepts such engagement and agrees to perform and furnish necessary
management services, systems and materials as appropriate to operate, supervise, manage and
maintain the Facility in the most efficient manner consistent with the operations of other first-
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class performance halls and in compliance with all applicable statutes, ordinances, laws, rules,
regulations and requirements under Federal, Commonwealth of Virginia, City of Virginia Beach
and other local authorities having jurisdiction over the Facility and its use, all pursuant to the
terms and conditions contained herein, and subject at all times to the limitations of the Approved
Budget. Subject to the terms of this agreement, Manager shall be the sole and exclusive
managing agent of the City to manage, operate and promote the Facility during the Operating
Term; provided, however, that Manager shall comply with and be subject to existing contracts
for the Facility and all policies, procedures, budgets and guidelines established by the City
(including, without limitation, any methodology pertaining to the allocation of costs and
expenses by the City to the Facility as permitted herein), which policies and procedures may be
established or modified by the City from time to time, subject to the terms of this Agreement.
Section 2.2. Without limiting the generality of the foregoing, Manager's obligations
hereunder shall include, but shall not be limited to, the performance of the following obligations,
subject to controls and restrictions as stated elsewhere in this Agreement and/or the Operations
Manual:
(a) Manage the Facility in accordance with the Operations Manual, the
Annual PIan (including the Approved Budget) and the terms of this Agreement, including, but
not limited to, the provision of the following services either directly or through the use of
independent contractors: purchasing, payroll, fire prevention, security, crowd control, traffic
management, parking management and coordination, routine repairs, preventative maintenance,
janitorial and housekeeping services, energy conservation, admission procedures, and general
user services. Means and methods of management will effectively accommodate the needs of
the mobility impaired and handicapped patrons.
(b) Procure, negotiate, execute in its own name and its capacity as manager of
the Facility, deliver and administer - in compliance with procurement procedures set forth in
Exhibit E - any and all licenses, occupancy agreements, rental agreements, booking
commitments, advertising agreements, concession agreements, supplier agreements, service
contracts (including, without limitation, contracts for utility service; cleaning, decorating and set-
up; interior and exterior landscaping; snow removal; general maintenance; maintenance and
inspection of HV AC systems, elevators, stage equipment, fire control panel and other safety
equipment; staffing and personnel needs, including guards and ushers; and other services which
are necessary or appropriate) and all other contracts and agreements in connection with the
management, promotion and operation ofthe Facility.
(i) If any such license, agreement, commitment or contract other than
those involving the license, lease or rental of the Facility in the ordinary course of
business, or a talent contract in connection with an event in the Facility, has a term that
extends beyond the remaining Operating Term hereof, such license, agreement,
commitment or contract shall be approved in advance by the City.
(ii) Manager hereby agrees that it shall inform the City about and
obtain prior approval before entering or proposing to enter into any contract, license or
agreement with an Affiliate, which contract, regardless of the City's approval thereof,
shall be at terms and for prices not greater than those customarily charged by such
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Affiliate for comparable goods and services elsewhere and which are competitive within
the industry.
(iii) Consistent with Exhibit E hereto, except for the procurement of
goods and services in an amount of $1 ,000 or less, documentation shall be submitted in a
timely manner to the City Contract Administrator evidencing the competitive nature of all
goods or services obtained by Manager in its capacity as manager of the Facility and the
basis for the selection of such goods and services. Prior to procuring any such services,
Manager shall coordinate with the City to determine if the City already has an established
vendor(s) that can provide any or all ofthe above referenced services at a favorable cost.
(iv) Unless the City agrees in advance to waive any or all of the
following, any such license, agreement, commitment or contract (A) shall provide that
any payment due thereunder shall be contingent upon the City Council's annual
appropriation of funds for such purposes, (B) shall contain no agreement or other
provision by which the City, as assignee or otherwise, would be obligated to indemnify
any party thereto or any of such party's agents, servants and employees and (C) shall
contain no agreement or other provision by which the City, as assignee or otherwise,
would be obligated to pay the legal fees of any party thereto or any of such party's
agents, servants and employees.
(c) Require that all users of the Facility execute rental/user agreements in
accordance with the requirements of Article XIII hereof.
(d) Maintain the Facility and all fixtures, equipment, systems and materials
located therein in the condition received by Manager, normal wear and tear excepted. At all
times, equipment maintenance shall meet or exceed manufacturer's recommendations therefor.
Manager shall provide the City Contract Administrator with an annual preventative maintenance
schedule for the Facility. In addition, Manager shall provide the City Contract Administrator
with a report on the last day of each quarter detailing all Facility maintenance that was performed
during the preceding quarter. This report shall include a list of breakdowns of all major pieces of
installed and portable equipment during such quarter. Manager shall provide the City with
access to the Facility without notice for routine maintenance inspections.
(e) Schedule Events at the Facility in accordance with the priority booking
policy set forth in the Operations Manual.
(f) Provide the City Contract Administrator with a "flash" report within five
(5) days - or if the same cannot be completed within such five (5) day period, then as soon as
practical thereafter but in no event to exceed fifteen (15) days - following the conclusion of an
event at the Facility.
(g) Provide day-to-day administrative services in support of its management
activities pursuant to the Approved Budget and the Annual Plan described herein, including, but
not limited to, the acquisition of services, equipment, supplies and facilities; internal budgeting
and accounting; maintenance and property management; personnel management; record-keeping;
collections and billing; and similar services.
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(h) Employ, supervise and direct all of its employees and personnel consistent
with the provisions of this Agreement.
(i) Maintain detailed, accurate and complete financial and other records of all
its activities under this Agreement in accordance with generally accepted accounting principles.
The City Contract Administrator and other representatives of the City shall have access to such
records at all times. In furtherance of the services to be provided hereunder, Manager may use
computer software programs that it also licenses for use at various facilities other than the
Facility, which in such event shall remain the sole property of Manager.
(j) Promptly notify the City Contract Administrator of any injuries, property
damage, claims, losses or damages relating to the Facility or the use thereof. Manager shall also
promptly inform the City Contract Administrator of the necessity of, and assist the City Attorney
with, instituting legal actions or proceedings to collect charges, rentals or other income due to the
City, or to cancel, terminate or sue for damages under any license, use or concession agreement
for the breach thereof or default thereunder by any licensee, user, advertiser, or concessionaire of
the City.
(k) Submit a written report to the City Contract Administrator on at least a
monthly basis, or as otherwise voluntarily agreed to between the parties, no later than the close
of the following month concerning its activities in the operation, management and supervision of
the Facility and the administrative services performed by Manager in conjunction therewith.
Such report shall, among other things, set forth bookings, receipts from all sources, expenditures,
and such other and further information as the City may require or request.
(I) Prepare a proposed annual operating budget for the Facility, as detailed in
Section 6.2 hereof, in accordance with the City's approved format, and submit such budget to the
City upon a schedule determined by the City Manager or his designee.
(m) Comply with the spending limitations imposed in the Approved Budget,
including any amendment(s) thereto as authorized, subject to Section 6.6. However, if
extraordinary events occur which could not reasonably be contemplated at the time the Approved
Budget was prepared, Manager may submit an amendment to the Approved Budget to the City
for review and approval or denial.
(n) Pay, when due, all Operating Expenses for the Facility from accounts
established under this Agreement.
(0) Deposit and hold in trust in the applicable subaccount of the Event
Operating Account or such other interest-bearing account in a local qualified public depository
as the City shall direct, any ticket sale revenues which it receives in the contemplation of or
arising from an event pending the completion of the event, as more fully provided in Section 7.4
hereof and in the Operations Manual. Notwithstanding any other provision of this Agreement,
except as provided in the Service and Usage Agreement dated _, 2007, between
Manager and Patron Solutions, L.P., d/b/a New Era Tickets ("New Era Tickets") or with respect
to ticket sales by any Resident Company (which the parties hereto agree may sell directly season
and single event tickets to their events). Manager shall not contract to a third-party any of its
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duties or responsibilities in connection with the receipt of ticket sales revenues for any such
events.
(p) Establish and maintain an ongoing relationship with the City and its
committees and departments, the Virginia Beach Performing Arts Center Foundation, the
Virginia Beach Performing Arts Center Advisory Committee, and any other organization as
designated by the City, including attendance and participation of all scheduled meetings of the
Foundation.
(q) Require that the General Manager or hislher designee attend all scheduled
meetings of the City regarding the Facility.
(r) Conduct staff planning, retention and training.
(s) Assist the City, if requested, with the supervision and maintenance of risk
management and Facility insurance functions.
(t) Supervise box office, parking, concession, catering, food service, novelty,
and other related services and administer related contracts. If mutually agreed by the parties,
Manager may provide food and beverage service directly or through an Affiliate.
(u) Maintain and update the web site, which shall include information
provided by the Virginia Beach Performing Arts Center Foundation regarding the Foundation,
how to make donations to the Virginia Beach Performing Arts Center Foundation, and
information on the Center Stage Capital Campaign.
(v) Propose and undertake such sales, marketing, promotional and advertising
efforts for the Facility as are budgeted and necessary to ensure that Operating Revenues
generated from the use of the Facility are maximized and that broad community support for the
Facility is cultivated.
(w) Cause such other acts to be undertaken and completed with respect to the
Facility consistent with the foregoing obligations, as mutually determined to be necessary for the
management and operation of the Facility.
Section 2.3. The parties' agreement with respect to technology services is set forth in
Exhibit A.
ARTICLE III
COMPENSATION
As total compensation to Manager for its services hereunder, the City shall pay to
Manager a fee composed of a Fixed Fee, and an Incentive Fee as follows:
Section 3.1. Fixed Fee. The City shall pay Manager a fixed fee (the "Fixed Fee") of
$16,000.00 per month for each month during the initial Operating Year hereunder, with such
monthly fee being adjusted for each Operating Year thereafter by applying the Consumer Price
Index for each such Operating Year. On or before the last day of each month, Manager will
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submit to the City an invoice for the Fixed Fee due for the following month, and the City will
pay Manager such amount within ten (10) days following the end of the preceding month.
Section 3.2. Incentive Fee. The City shall pay Manager an incentive fee ("Incentive
Fee") with respect to each Operating Year hereunder in an amount equal to the sum of (a) the
amount calculated as the sum of twelve percent (12%) of the following Operating Revenues:
. Rental income - theater and rehearsal studio in excess of $250,000;
. Net food and beverage sales income in excess of$100,000;
. Net valet parking revenue;
. Manager's mark-ups on expenses reimbursed by users/promoters; and
. Box office rebate revenue
. Advertising sales and sponsorship income in excess of $1 00,000.
The Incentive Fee shall in no event during any Operating Year exceed 100% of the Fixed
Fee payable pursuant to Section 3.1 hereof for any such Operating Year. Manager's right to
receive payment of the Incentive Fee, or any portion thereof, shall be subject to Manager
achieving in each such Operating Year the aggregate budgeted revenue from the Operating
Revenue categories on which the Incentive Fee is calculated.
The Incentive Fee determined to be payable hereunder shall be payable to Manager at the
end of each Operating Year within thirty (30) days of the City's receipt from Manager of an
invoice for the Incentive Fee. Promptly following the availability of the audited financial
statements described in Article XIII for a Fiscal Year, Manager shall recalculate the Incentive
Fee payable hereunder based on the audited financial statements and, in the event the Incentive
Fee paid pursuant to this Section based on Manager's invoice differs from such recalculated
amount, then within thirty (30) days of such recalculation Manager shall remit to the City any
excess amount that was paid to Manager, or the City shall pay to Manager the shortfall, as the
case may be.
ARTICLE IV
TERM; TERMINA nON
Section 4.1. Term.
(a) The term of this Agreement shall consist of the Current Term and the
Subsequent Extension Term(s), if any.
(b) Unless sooner terminated or extended pursuant to the provisions hereof,
the term of this Agreement shall expire on the last day ofthe Current Term, October 31,2010.
( c) The term of this Agreement may be extended by the City at the expiration
of the Current Term for up to two (2) additional one (1) year extension periods (each a
"Subsequent Extension Term").
(d) In order to extend the Current Term or any Subsequent Extension Term(s)
hereunder, the City shall provide Manager with no less than three (3) months written notice of its
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intention to so extend the term of this Agreement. In the event Manager does not wish to accept
the proffered extension for the Subsequent Extension Term(s), Manager shall notify the City of
such determination in writing within ten (10) days after receipt of such written notice from the
City, whereupon this Agreement shall terminate at the conclusion of the then-current term
hereof. The compensation to be received by Manager during any Subsequent Extension Term(s)
hereunder shall be the same as set forth herein for the Current Term (subject to continuing the
annual CPI increases of the Fixed Fee as set forth in Section 3.1 hereof) unless otherwise agreed
in writing by Manager and the City.
Section 4.2. Termination.
(a) This Agreement may be terminated (i) by either party upon thirty (30)
days written notice, if the other party fails to perform or comply with any of the material terms,
covenants, agreements or conditions hereof, and such failure is not cured during such thirty (30)
day notification period, or (ii) by the City immediately by written notice upon Manager being
adjudged bankrupt or insolvent, or if any receiver or trustee of all or any part of the business
property of Manager shall be appointed and shall not be discharged within ninety (90) days after
appointment, or if Manager shall make an assignment of its property for the benefit of creditors
or shall file a voluntary petition in bankruptcy or insolvency, or shall apply for bankruptcy under
the bankruptcy or insolvency laws now in force or hereinafter enacted, Federal, State or
otherwise, or if such petition shall be filed against Manager and shall not be dismissed within
ninety (90) days after such filing.
(b) In the event this Agreement expires or is terminated prior to the end of the
Operating Term, unless otherwise prohibited by the terms of this Agreement, the City shall
promptly pay Manager all fees due Manager up to the date of termination or expiration,
computed on a pro-rata basis (if applicable), and reimbursement of all expenses incurred by
Manager up to the date of termination, in accordance with the terms hereof.
( c) Upon termination or expiration of this Agreement for any reason, Manager
(1) shall promptly discontinue the performance of all services hereunder and (2) Manager shall
assign to the City (which shall accept and assume, or cause the successor manager of the Facility
to accept and assume, responsibility to perform under) all contracts and agreements relating to
the operation of the Facility properly entered into by Manager as permitted by the terms of this
Agreement (including, without limitation, the terms of Section 2.2(b )(i) through (iv) hereof),
except software licenses that are not assignable.
(d) The remedies described in this Section 4.2 shall be in addition to any other
remedies the parties may be entitled to, either by virtue of the terms of this Agreement, at law or
in equity, as a result of a breach or termination of this Agreement.
ARTICLE V
OWNERSHIP
Section 5.1. The City will retain the ownership of the Facility at all times during the
Operating Term hereof, including, but not limited to, real estate, improvements, technical and
office equipment and facilities, furniture, displays, fixtures, vehicles and similar tangible
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property. The City shall own all data and other electronic files generated by Manager in
operating the Facility through the use of either the City's or Manager's data processing programs
and software.
Section 5.2. Manager may not take or use, for its own purposes, customer or exhibitor
lists or similar materials developed by the City unless prior written consent thereto is granted by
the City.
Section 5.3. The City Contract Administrator and hislher designees shall have the
right, without advance notice to Manager and at all appropriate times, to enter all portions of the
Facility to inspect the same; to observe the performance of Manager of its obligations hereunder;
to install, remove, adjust, repair, replace or otherwise handle any equipment, utility lines, or
other matters in, on, or about the Facility; or to do any act or thing which the City may be
obligated or have the right to do hereunder or otherwise. Nothing contained in this Section is
intended or shall be construed to limit any other rights of the City hereunder. The City shall not
unreasonably interfere with the activities of Manager hereunder, and the City's actions shall be
conducted such that disruption of Manager's work shall be kept to a minimum. Nothing
contained in this Section shall impose or be construed to impose upon the City any independent
obligation to construct, maintain or make repairs, replacements, alterations, additions or
improvements to the Facility or any of the equipment, fixtures, furnishings or materials located
therein or create any independent liability for any failure to do so.
Section 5.4. The ownership of and title to all intellectual property rights of whatsoever
value held in the name of any of the parties hereto shall remain the sole property of such party.
The ownership of consumable assets (such as office supplies and cleaning materials) purchased
with Operating Revenues or other City funds shall remain with the City, but such assets may be
utilized and consumed by Manager in the performance of services under this Agreement. The
ownership of equipment, furnishings, materials, or fixtures not considered to be real property and
other personal property purchased by Manager with Operating Revenues or other City funds for
use at and for the Facility shall vest in the City automatically and immediately upon purchase or
acquisition. The assets of the City as described herein shall not be pledged, liened, encumbered
or otherwise alienated or assigned other than in the ordinary course of business of the Facility
without the prior approval of the City. Manager shall promptly notify the City of any losses in
inventory of City-owned equipment.
ARTICLE VI
ANNUAL PLAN AND OPERATING BUDGET
Section 6.1. Manager shall provide to the City, (i) on or before September 1, 2007, in
the case of the initial Operating Year that begins November 1, 2007, and (ii) except as otherwise
provided herein, on or before November 1 of each Operating Year thereafter, an annual
management plan (the "Annual Plan") for the next Operating Year. The Annual Plan shall
include the following components:
(a) Marketing Plan - Manager shall provide the City with an update of
Manager's marketing plans for the Facility, which update shall contain, but shall not be limited
to, the following elements:
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(i) Market research;
(ii) Market position;
(iii) Marketing objectives;
(iv) Marketing strategies;
(v) Booking priorities;
(vi) Targeted events - local, regional, national and international;
(vii) Event management and marketing as well as corporate
sponsorships;
(viii) Event marketing;
(ix) Internal and external support staff;
(x) Advertising opportunities at 10cal, regional and national level; and
(xi) Attendance at various trade shows, conventions and seminars.
In connection with the Manager's marketing of the Facility, the Manager shall also
perform the following services:
A. Notify the City of events to be booked in the Facility,
which bookings shall be made subject to the terms of this Agreement and the
booking schedule attached hereto, targeting national, Virginia, Hampton Roads
and Virginia Beach markets.
B. Develop materials necessary to support the marketing pIan,
including, but not limited to, videos, virtual tours, direct mailers, Facility
newsletters, and promotional and advertising items and/or gifts.
C. Develop, with input from community leaders, prime
tenant(s), the Convention and Visitors Bureau of various cities in the Hampton
Roads area, the City's Office of Special Events, the Department of Museums and
Cultural Arts, and other appropriate internal City departments, and submit to the
City pre-opening and operational sales, marketing, public relations, advertising,
promotion, and event booking strategies and plans aimed at maximizing revenues
from the Facility.
D. Identify, III coordination with the City, potential
advertisers, sponsors, equity partners and event producers. Develop, in
consultation with the City, sponsorship values for Facility naming opportunities.
E. Maintain ongoing community relations and exposure to
industry via media releases, speakers bureau, paid advertising and direct mail.
Develop membership and group sales databases.
F. Plan, promote and execute, in conjunction with the City,
Grand Opening events to maximize market impact and community relations, as
outlined in the RFP Response.
G. Maintain booking calendar, schedule and contract events.
Schedule and promote special events to round out programming.
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(b) Annual Operating Budget - Manager agrees that by November 1 of each
Operating Year, it will prepare and present to the City a summary of the annual operating budget
described herein for the next Operating Year. Thereafter, by February 1 of each Operating Year,
Manager agrees that it will prepare and present a line-item annual operating budget for the
operation, management, promotion and maintenance of the Facility during the next Operating
Year in compliance with such procedures, and containing such items, as required by this
Agreement. Said budget shall include, at a minimum, a projected income and expense statement
compared to the Approved Budget for the immediately preceding Operating Year, with an
explanation of variances. The annual budget shall also include a list of anticipated events at the
Facility and anticipated advertising and promotional activities.
(c) List and Budget for Recommended Capital Expenditures.
(d) Preventative Maintenance Plan.
( e) Operations Manual - Manager shall conduct an annual review of the
Operations Manual and, to the extent it deems necessary, make recommendations for
modifications thereto. Similarly, the City shall review the Operations Manual prior to the
beginning of each Operating Year hereunder and shall be entitled to request amendments thereto,
which amendments shall be incorporated therein by Manager. Any such amendments to the
Operations Manual resulting in additional operating costs shall be reflected in an amendment to
the Annual Operating Budget. The Operations Manual, and any amendments thereto, shall be
deemed a part of this Agreement and shall be incorporated herein by this reference.
(f) In addition to the foregoing, the Annual Plan shall be supplemented with
the Manager's projections of the Operating Budget and Capital Expenditures required for the
period of the remaining Operating Years assuming the term of this Agreement is extended to
include all Subsequent Extension Terms contemplated by Section 4.1(c). The City
acknowledges that such projections will be provided in good faith, will constitute estimates only
and shall be subject to change.
Section 6.2. The Annual Plan shall be subject to review, revision and approval by the
City. Within thirty (30) days of its receipt of the Annual Plan, the City shall notify Manager of
any changes to such Annual Plan, including, without limitation, the proposed annual operating
budget. Manager shall have twenty (20) days within which to incorporate the City's suggested
revisions into the Annual Plan, to discuss the same with the City Contract Administrator and to
submit the Annual Plan, as revised, to the City for final approval. Upon final approval by the
City of the Annual Plan, as revised (which approval shall not be unreasonably withheld), the
same shall constitute the operating program for Manager for the next Operating Year and the
annual operating budget approved in connection therewith shall be the "Approved Budget" for
the next Operating Year.
Section 6.3. Manager may submit to the City at any time prior to the close of an
Operating Year a supplemental or revised annual operating budget for such Operating Year.
Upon the approval by the City Manager or City Council, as the case may be under City policies
for budget amendment authorization, of such supplemental or revised annual operating budget,
the Approved Budget for such Operating Year shall be deemed amended to incorporate such
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supplemental or revised annual operating budget. The Approved Budget may only be amended
in the manner set forth in the two preceding sentences or Section 6.4.
Section 6.4. In the event that it appears reasonably likely, in any Operating Year
hereunder, that the actual net operating loss/profit for such Operating Year will be larger, in the
case of a net operating loss, or smaller, in the case of a net operating profit, than projected in the
Approved Budget for such Operating Year, the City may request from Manager a plan for
reduction of Operating Expenses to a level consistent with the budgeted net operating loss/profit
amount. Manager shall forthwith comply with any such expense reduction requested by the City,
and the Approved Budget for such Operating Year shall be modified accordingly.
Section 6.5. Manager shall ensure that its representatives are present at all City
meetings where budgets for the Facility are to be discussed.
Section 6.6. Manager, in its reasonable discretion and in furtherance of its obligations
under this Agreement, may reallocate funds among the Operating Expense line-item category
amounts set forth in the Approved Budget (and subsequently expend such amounts on Operating
Expenses hereunder) in an aggregate amount not to exceed $100,000 without the prior approval
of the City provided that in so doing, Manager informs the City Contract Administrator of such
changes and does not cause the actual net operating loss for the then-current Operating Year to
exceed the amount projected in the Approved Budget for such Operating Year. Where Manager
determines, or is informed in writing by the City, that the actual net operating loss for the then-
current Operating Year appears reasonably likely to exceed the amount projected in the
Approved Budget for such Operating Year, Manager shall not exceed, commit or contract to
expend any sums in excess of the original Operating Expense line-item category amounts set
forth in the Approved Budget without the prior written approval of the City Contract
Administrator. In the event Manager incurs expenditures or commits to expend sums in excess
of amounts permitted by the terms of this Agreement without the prior written approval of the
City, Manager agrees that it shall be liable for any such expenditure and further agrees that the
City shall have no liability with respect thereto.
ARTICLE VII
PROCEDURE FOR HANDLING INCOME
Section 7.1. Subject to Section 7.2 and Article XVIII hereof, following the
establishment of the Approved Budget for an Operating Year, the City shall make available to
Manager all funds necessary to pay all Operating Expenses incurred or accrued in such
Operating Year within the Approved Budget. To the extent that Operating Revenues during a
calendar quarter period are insufficient, or expected to be insufficient, to cover Operating
Expenses (a "Cash Flow Shortfall") for such period, the City shall advance funds to Manager as
follows: thirty (30) days prior to the beginning of each quarter of the fiscal year during the
Operating Year, Manager will submit to the City an invoice for the projected Cash Flow
Shortfall for such quarter and the City will transfer such funds to Manager within five (5) days
after the start of such fiscal year quarter. Such funds shall be deposited by Manager in the
Facility Operating Account(s) and shall be used by Manager solely for the payment of Operating
Expenses hereunder.
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Section 7.2. The City shall have no obligation to provide funds for the payment of
Operating Expenses incurred or committed for by Manager after the date Manager receives
written notice (an "Appropriation Deficiency Notice") from the City of the fact that insufficient
funds or no funds have been appropriated for the Facility. Such Appropriation Deficiency
Notice shall specify the date on which funds for the Facility will be exhausted and an order of
priorities for expenditure of the remaining City funds.
Section 7.3. Upon delivery of the Appropriation Deficiency Notice, the City shall pay
all Operating Expenses incurred or committed for by Manager prior to the date Manager received
such Appropriation Deficiency Notice. Any failure by the City to provide funds (beyond the
aggregate level of appropriated funds) for the payment of Operating Expenses incurred or
committed for by Manager after Manager receives such Appropriations Deficiency Notice shall
not constitute a breach of or default by the City under this Agreement. Any failure by Manager
to perform its obligations under this Agreement shall not be a breach of or default under this
Agreement if such breach or default results from the City's failure to appropriate sufficient funds
for the management, operation and promotion ofthe Facility.
Section 7.4. Ticket sale revenues and similar event-related revenues that Manager
receives in contemplation of or arising from an event to be held at the Facility shall be deposited
by Manager as soon as practicable upon receipt (but in any event within three (3) business days
of receipt by Manager) into the Event Operating Account or such other interest-bearing account
in a local qualified public depository as the City shall direct pending the completion of such
event, with ticket sales revenues and similar event-related revenues attributable to Resident
Company events being deposited in the Resident Company Subaccount and all other ticket sales
revenues and similar event-related revenues being deposited to the Non-Resident Company
Subaccount. Such moneys will be held in trust for the protection of ticket purchasers, the City
and Manager, and to provide a source of funds for payments to performers and promoters and for
payment of expenses in connection with the presentation of such events. Following satisfactory
completion of the event, Manager shall make a deposit into the Facility Operating Account of the
amount in such Event Operating Account (and each subaccount therein) and shall provide the
City with a draft event "flash" report within five (5) business days and a final event "flash"
report within thirty (30) days. Interest earned on amounts deposited in the Event Operating
Account shall be considered Operating Revenues. Bank service charges, if any, on such account
shall be considered an Operating Expense. In the event that the Non-Resident Company
Subaccount does not contain sufficient funds to reimburse ticket purchasers for events (other
than Resident Company events) that are cancelled or otherwise not held or completed and for
which such ticket purchasers are entitled by law to a refund, Manager shall be responsible for
any such reimbursement to ticket purchasers who purchased tickets from Manager or New Era
Tickets, the entities authorized under this Agreement to handle such ticket sales, and the City
shall have no liability in respect thereof. Manager shall have no liability for reimbursement to
ticket purchasers of Resident Company events.
Section 7.5. Except as otherwise provided in this Agreement, including, without
limitation, Section 7.4 hereof, all Operating Revenues collected by Manager from the operation
of the Facility shall be deposited into the Facility Operating Account as soon as practicable upon
receipt (but in any event within three (3) business days of receipt by Manager). Except as
otherwise provided in this Agreement, including, without limitation, Section 7.4 hereof, Manager
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shall use funds in the Facility Operating Account to pay for Operating Expenses hereunder. All
Operating Revenues and other revenues collected by Manager arising from operation of the
Facility, including revenues from Facility or equipment rentals, utility rental agreements, food
and beverage concessions, or any other source, are the sole property of the City and shall be held
in trust by Manager for the City for application as provided herein. On the first (l st) business day
of each calendar quarter or at such other time as may be provided in the Operations Manual,
uncommitted amounts in the Facility Operating Account in excess of the budgeted amount of
Operating Expenses, as set forth in the Approved Budget, for such fiscal year quarter may be
applied by the City in such manner as the City may determine in its sole discretion, including but
not limited to, retained in the Facility Operating Account for the payment of future Operating
Expenses or transferred by the City to any other fund or account.
Section 7.6. Each of the Facility Operating Account(s), the Event Operating
Account(s) and any other account established hereunder or pursuant to the Operations Manual
shall be opened by Manager, in its own name and federal identification number. Manager shall
designate no more than four (4) employees of Manager to be authorized signatories on the
accounts. In addition, such accounts shall permit two authorized City signatories. Any amounts
remaining in such accounts upon the expiration or earlier termination of this Agreement for any
reason, after payment of all outstanding Operating Expenses, shall be promptly paid by Manager
to the City. Upon the expiration or earlier termination hereof, Manager shall remove Manager's
designated signatories from all such accounts. Similarly, upon the termination of employment of
any of Manager's designated signatories, Manager shall notify the City Contract Administrator
thereof and shall remove such designated signatory from all such accounts.
Section 7.7. In addition to the reports specified in Section 8.2 hereof, within sixty (60)
days after the end of each Operating Year hereunder, Manager will provide the City with a
complete unaudited financial statement for each account, which accounts shall be subject to audit
by the City at any time.
Section 7.8. It is the intent of this Agreement that cash control for Facility operations
shall be accomplished through a combination of rigid accounting procedures and internal audit
tests and an annual audit by an independent public accounting firm approved by the City. As
more fully provided in this Agreement and in the Operations Manual, separate bank accounts
shall be utilized for Operating Revenues and box office receipts. Payrolls shall be processed
through the Facility Operating Account, reconciled monthly and tested via internal control
procedures. Each event shall be accounted for using an event accounting system, with budgets
and final reports prepared for each event as provided in the Operations Manual, and Operating
Expenses for each event shall be coded for accurate accumulation to ensure all applicable costs
shall be paid by the users of the Facility. Advance deposits covering rentals and estimated costs
shall be required as provided in the Operations Manual to minimize collection programs. When
deemed necessary by Manager, credit references shall be checked on clients when deposits are
not being collected to cover rental costs and ancillary expenses for the event.
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ARTICLE VIII
FISCAL RESPONSIBILITY
Section 8.1. Manager agrees to keep and maintain during the Operating Term
hereunder, separate and independent records, in accordance with generally accepted accounting
principles, devoted exclusively to its activities at the Facility. Said books, ledgers, journals,
accounts, and records shall contain all entries reflecting the activities of Manager under this
Agreement and shall be maintained in Manager's office in the Facility during the Operating
Term. Upon expiration or earlier termination of this Agreement, Manager shall deliver to the
City copies of all such books and records. All of the foregoing records shall be open for
examination and audit by the City Contract Administrator and other City designated and
authorized agents or personnel during Manager's ordinary business hours on demand and
without the provision of advance notice, provided the City shall schedule such audits so as to
minimize any interruption to Manager's operations. Manager shall keep and preserve for at least
three (3) years following each Operating Year all sales slips, rental agreements, purchase orders,
sales books, credit card invoices, bank books or duplicate deposit slips, and other evidence of
Operating Revenues and Operating Expenses for such Operating Year, provided that Manager
shall have no obligation to maintain such materials following the end of the Operating Term in
the event Manager delivers all such materials to the City upon expiration or earlier termination
hereof.
Section 8.2. Manager agrees to render, within thirty (30) days after the end of each
month during the Operating Term hereof, financial reports for the Facility including a balance
sheet, an aging report on accounts receivable, and a statement of revenues and expenditures
(budget to actual) for the current month and year to date in accordance with generally accepted
accounting principles. In addition, Manager will provide separate cash receipts and
disbursements reports for each event held at the Facility during such month. In addition,
Manager will immediately upon request by the City, the City Contract Administrator or hislher
designee provide information on the Facility Operating Account(s) and the Event Operating
Account(s).
Section 8.3. Manager agrees to meet with the City Contract Administrator and other
City designated and authorized agents or personnel on request to answer questions relating to the
operation of the Facility and the financial reports submitted by Manager in relation thereto. In
addition, Manager agrees within ninety (90) days following the end of each Operating Year
hereunder to provide to the City a balance sheet, a statement of profit or loss and a statement of
cash flows for the Facility for the preceding Operating Year, prepared in accordance with
generally accepted accounting principles and accompanied by an independent auditor's report
prepared by a nationally recognized, independent certified public accountant that has been
approved in advance by the City. The audit shall contain an opinion expressed by the
independent auditor of the accuracy of the financial records kept by Manager. The audit shall
also provide a certification of Operating Revenues and Operating Expenses for such Operating
Year. Notwithstanding anything to the contrary contained herein, the costs of such audit shall be
deemed an Operating Expense hereunder. A letter from such accounting firm expressing its
opinion as to the effectiveness of internal controls and a management letter will accompany the
audit report.
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Section 8.4. Manager agrees to use forms, accounting methods, internal controls and
procedures for its reports that are acceptable to the City and in particular report in conformance
with the chart of accounts attached hereto as Exhibit B. The City hereby agrees that the forms
generated by Manager's use of MAS 200 are acceptable.
Section 8.5. The City, the City Contract Administrator and other City designated and
authorized agents or personnel may request additional financial or statistical reports with respect
to the Facility, and Manager shall promptly provide such reports to the City. It is agreed that
such requests by the City will be reasonable with respect to timing and frequency and shall not
require Manager to incur additional out-of-pocket expense.
Section 8.6. The parties shall together, one time during each Operating Year, conduct
an inventory of equipment and fixed assets of the Facility.
Section 8.7. Any data, equipment or materials furnished by the City to Manager and
any such data, equipment or materials that may be acquired by Manager from Operating
Revenues or other City funds to be used at the Facility shall remain the property of the City, and
when no longer needed for the performance of this Agreement, shall be returned to the City.
Section 8.8. All Manager employees handling moneys or designated as authorized
signatories on any Facility accounts shall be sufficiently covered, as an Operating Expense
hereunder, by crime insurance, to protect Manager's and the City's interests. Such crime
insurance shall be in the amounts set forth in Exhibit B attached hereto and shall name the City
as loss payee as its interest may appear.
Section 8.9. Operating Revenues for the Facility shall be defined to include, but shall
not be limited to, the following:
. Rental Income;
. Equipment Rental fees;
. Manager's mark-ups on expenses reimbursed by users/promoters;
. Lease income;
. Commission revenue;
. Interest/Miscellaneous Operating income;
. Net Valet Parking Revenue;
. Advertising sales and Sponsorship income;
. Food and Beverage sales income;
. Merchandise sales income; and
. Box Office Rebate revenue.
Operating Revenues shall not include any of the following:
. applicable excise, sales, occupancy and use taxes, or similar government taxes,
duties, levies or charges collected directly from patrons or guests, or as a part of
the sales price of any goods, services, or displays, such as gross receipts,
admission, cabaret, or similar or equivalent taxes;
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. any gratuities collected (or to be collected) for the benefit of and paid to any of
Manager's personnel, unless such gratuities are collected as part of a service
charge;
. Event ticket proceeds collected (or to be collected) for the benefit of and actually
paid to a third party event promoter (i.e., promoter proceeds);
. rent paid by the City for office space and use of parking spaces in the Facility; and
. moneys collected from the sale of naming rights and other corporate sponsorship
opportunities for the Facility where Manager or its contractor has not participated
in the sale of such items.
Section 8.10. Operating Expenses shall be defined as all expenses incurred by Manager
in connection with its operation, management and promotion of the Facility, and shall include,
but shall not be limited to, the following:
. Payroll, benefits, bonuses and related costs;
. Operating supplies;
. Advertising, marketing and promotion costs;
. Cleaning;
. Data processing;
. Printing and stationary costs;
. Dues, subscriptions and memberships;
. Postage and freight costs;
. Equipment and rental costs;
. Minor repairs and maintenance, not inclusive of Capital Expenditures;
. Security expenses;
. Travel and Entertainment;
. Cost of office supplies;
. Telephone charges;
. Cost of employee uniforms;
. Exterminator and trash removal costs;
. Parking expenses;
. Utility expenses;
. Audit;
. Insurance costs;
. Taxes; and
. Commissions to third parties.
Section 8.11. Travel expenses of Manager's employees shall be paid as Operating
Expenses hereunder when included in the Approved Budget. Such expenses shall be prorated if
Manager's employees conduct business on behalf of Manager or other facilities. All non-
budgeted travel expenses shall be paid as Operating Expenses hereunder only to the extent that it
appears reasonably likely at the time such expense is incurred that the actual net operating loss
for the then-current Operating Year will be smaller than the amount projected in the Approved
Budget for such Operating Year; otherwise, such non-budgeted travel expenses shall be paid as
Operating Expenses hereunder only with the prior written consent of the City Contract
Administrator.i
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Section 8.12. Unless included in the Approved Budget, relocation expenses of
Manager's employees shall not be considered Operating Expenses hereunder without the prior
written approval of the City Contract Administrator.
Section 8.13. Reasonable and actual1egal expenses incurred by Manager in connection
with required collection efforts or other matters directly related to Facility operations shall be
considered Operating Expenses hereunder, provided Manager shall confer with the City Contract
Administrator and the City Attorney prior to incurring any such expenses. In no event, however,
shall legal expenses incurred by Manager in proceedings instituted by Manager against the City
be considered an Operating Expense hereunder.
ARTICLE IX
CAPITAL IMPROVEMENTS
Section 9.1. The City will retain the responsibility for making Capital Expenditures for
the Facility; however, the City shall be under no obligation to make any Capital Expenditures
during the Operating Term hereof. Manager agrees to provide to the City, in accordance with
and as part of the Annual Plan, Manager's recommendation for Capital Expenditures to be
accomplished during the next Operating Year and shall be accompanied by an estimate of the
cost of all such items and projects and a request that the City budget funds therefor. The City
shall retain the discretion to determine whether, and to what level, to fund Capital Expenditures
to the Facility. All routine and minor repairs, maintenance, preventative maintenance, and
equipment servicing shall be the responsibility of Manager as Operating Expenses.
Section 9.2. Except for expenditures properly made in accordance with Section 9.4
hereof, Manager shall obtain prior approval from the City Contract Administrator for necessary
repairs that are made to the Facility, the cost of which exceeds Two Thousand Five Hundred
Dollars ($2,500.00). Manager shall cause all necessary minor repairs and improvements to be
made to the Facility using moneys available in the Approved Budget.
Section 9.3. Manager shall be responsible for ensuring that all repairs, replacements,
and maintenance activities shall be of a quality and class at least equal to the original work. Any
replacement of an item contained on the inventory schedule attached hereto as Exhibit C or any
new item added to such inventory schedule shall be deemed the sole and exclusive property of
the City.
Section 9.4. Manager shall have the right to take such actions as it deems necessary,
without the consent of the City, in situations where Manager determines there is an emergency
with respect to the safety, welfare and protection of the general public, which actions shall
include spending and committing funds held in the Facility Operating Account, even if such
expenses are not budgeted as part of the Annual Budget. Immediately following such action,
Manager shall inform the City Contract Administrator of the situation and the action(s) taken,
and the City shall pay into the Facility Operating Account the amount of funds, if any, spent or
committed by Manager pursuant to this Section in excess of budgeted amounts therefor.
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Section 9.5. The parties agree that in the event Manager requests a capital
improvement, the City will give reasonable consideration to such request(s) in formulating its
budget in light of competing financial considerations.
ARTICLE X
[RESERVED]
ARTICLE XI
PERSONNEL
Section 11.1. Generally.
(a) Except as provided in Section 11.1(b), all personnel operating at the
Facility shall be engaged or hired by Manager (or an Affiliate, agent or contractor of Manager),
and shall be employees, agents or independent contractors of Manager (or an Affiliate, agent or
contractor of Manager), and not of the City. As outlined in the RFP Response, Manager shall
select the number, function, qualifications, and compensation, including salary and benefits, of
its employees and shall control the terms and conditions of employment relating to such
employees. The City specifically agrees that Manager shall be entitled to pay its employees, as
an Operating Expense, compensation in accordance with Manager's then current employee
manual, which may be modified by Manager from time to time in its sole discretion. A copy of
Manager's current employee manual shall be provided to the City upon request. Manager agrees
to use reasonable and prudent judgment in the selection and supervision of such personnel,
including the use of background (including, without limitation, criminal background) and
reference checks, as applicable. Manager shall comply with all applicable laws including,
without limitation, the immigration laws of the United States in its selection and hiring practices.
Except as provided in Sections 11.2 or 11.3, City shall have no right to supervise or direct the
hiring or firing of any such personnel but, in the event that the City notifies Manager that it
desires the removal from the Facility of any Manager employee and sets forth in such notice the
specific reasons for such request, Manager agrees to meet with representatives of the City to
discuss the matter. Any decision to remove the individual shall be made by Manager, but in
making such decision Manager agrees to act reasonably and take into account the views
expressed by the City. Due to the direct contact with the public, Manager shall not employ or
assign employees at the Facility who are known by Manager to have been convicted of a felony
or a misdemeanor deemed to be a crime against persons under the Virginia Code, or who have
been convicted of any sexual molestation charge against children. Further, any employee who is
charged with any of such offenses, pending adjudication of such charges, shall not be permitted
in the Facility.
(b) Any City personnel working out of the Facility including, without
limitation, the City Contract Administrator, shall remain employees, agents, or independent
contractors of the City in all respects, and not of Manager. Such employees shall not be involved
in the day-to-day management or operation services for which Manager is being engaged to
perform hereunder, but may oversee Manager's duties hereunder on behalf of the City. The City
shall consider, at the request of Manager, the removal of any such personnel who fail to comply
with Manager's rules and regulations.
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(c) In the event Manager utilizes the services of volunteer workers at the
Facility, Manager agrees to apply the same selection and hiring practices to such volunteer
workers as it applies to paid employees, all as more further described in (a) above including,
without limitation, compliance with all applicable labor and employment laws. Further, such
volunteer workers shall be subject to the limitations and restrictions described in (a) above in
respect of any criminal violations or charges.
Section 11.2. General Manager. Personnel supplied by Manager will include an
individual with managerial experience in similar facilities to serve as a full-time on-site general
manager of the Facility ("General Manager"). Hiring of the General Manager by Manager shall
require the prior approval of the City, which approval shall not be unreasonably withheld or
delayed. The City hereby approves of Paul Lasakow as Manager's initial General Manager. The
General Manager will have general supervisory responsibility for Manager and will be
responsible for day-to-day operations of the Facility, supervision of Manager's employees, and
management and coordination of all activities associated with events taking place at the Facility.
In the event the current General Manager ceases to be employed by Manager at the Facility for
any reason, Manager may, without the prior approval of the City, appoint an interim general
manager, provided that Manager shall use its best efforts to promptly appoint a permanent
replacement (who shall be appointed with the City's prior approval, not to be unreasonably
withheld or delayed).
Section 11.3. Prohibition on Hiring. During the Operating Term hereof and for a period
of one (1) year thereafter, neither party shall, without the prior written consent of the other party
(which consent shall not be unreasonably withheld or delayed), hire as an employee, consultant
or other agent or contractor any senior management employee or agent of such other party with
whom the City or Manager has had dealings with by virtue of the engagement of Manager
hereunder. In the event of a breach of this Section 11.3 with respect to any such employee or
agent of the parties, the breaching party shall pay the non-breaching party as liquidated damages
an amount equal to one year's salary and benefits for such employee or agent. The parties agree
that such amount is an estimate of the actual damages the non-breaching party will suffer as a
result of a breach of this Section 11.3, and shall be deemed to constitute liquidated damages and
not a penalty of any kind. For purposes of this paragraph, "senior management employees" of
(1) Manager shall mean the General Manager and any department head employed by Manager at
the Facility and (2) the City shall mean the City Contract Administrator, the Project Director and
the Capital Campaign Coordinator.
ARTICLE XII
AGREEMENT MONITORING AND GENERAL MANAGER
Section 12.1. City Contract Administrator. The City shall monitor Manager's
compliance with the terms of this Agreement through the "City Contract Administrator," who
shall be the City Manager or hislher designee, and at present is Emily Spruill (subject to change
by written notice to Manager). Any and all references in this Agreement requiring City
participation or approval shall mean the participation or approval of the City Contract
Administrator. The City Contract Administrator shall be the liaison between Manager and the
City on all matters relating to this Agreement, shall ensure that any information supplied by
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Manager is properly distributed to the appropriate City departments, and shall be responsible for
the monitoring and assessment of contract compliance by Manager.
Section 12.2. Manager Representative. Manager shall monitor the parties' compliance
with the terms of this Agreement through the "Manager Designee". Manager Designee at
present is Doug Higgons (subject to change by written notice to the City). Such Manager
Designee shall be the day-to-day liaison between the City and Manager on all matters relating to
this Agreement.
Section 12.3. Complaints. Complaints received by the City regarding the conduct or the
manner of operation ofthe Facility or of Manager's employees, including, without limitation, the
General Manager, shall be promptly addressed by Manager.
ARTICLE XIII
USER/RENTAL AGREEMENTS
Section 13.1. Manager shall have the authority to execute user/rental agreements for the
use of the Facility in materially the form approved by the City Contract Administrator and the
City Attorney as the standard Facility occupancy agreement (the "Standard Facility
Agreement"). Concurrently with its approval of the model Standard Facility Agreement, the
City Contract Administrator shall be entitled to notify Manager of those material sections or
provisions found therein that cannot be modified without the prior consent of the City Contract
Administrator (collectively, the "Standard Provisions"), and any proposed Standard Facility
Agreement that deviates from the Standard Provisions must be approved in advance by the City
Contract Administrator. Manager acknowledges that the City Contract Administrator may
consult with the City Attorney or other applicable City employees for the purpose of determining
whether to approve any such changes to the Standard Provisions. Provided that none of the
Standard Provisions are amended or modified, Manager may make changes in the Standard
Facility Agreement on a case-by-case basis as it deems reasonable. The City Contract
Administrator, upon request, shall be provided with copies of all Standard Facility Agreements.
Manager shall charge such rates for use of the Facility as are established by Manager in
accordance with the Operations Manual, and any deviation from such established rates shall be
approved in advance by the City Contract Administrator.
ARTICLE XIV
INDEMNIFICATION
Section 14.1. Indemnification by Manager. Manager agrees to indemnify and hold
harmless the City and its agents, servants and employees against any claims, causes of action,
costs, expenses (including reasonable attorneys' fees), liabilities, or damages (collectively,
"Losses") suffered by such parties, arising out of or in connection with any (a) negligent act or
omission, or intentional misconduct, on the part of Manager or any of its employees or agents in
the performance of its obligations under this Agreement or (b) breach by Manager of any of its
representations, covenants or agreements made herein. Notwithstanding the foregoing, Manager
shall have no duty to indemnify the City under this Section 14.1 for Losses that arise out of or
are connected with (x) a negligent or intentional act on the part of the City or its agents, servants
or employees, (y) a structural or building defect in the Facility or (z) any act or omission taken
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by Manager (i) following mutual agreement by the City and Manager to any such act or omission
or (ii) in those instances in which (A) first, Manager has delivered a prior written objection to the
City's directive that Manager act or refrain from acting and (B) second, Manager has received
written direction from the City to proceed following Manager's delivery of its written objection.
The provisions of this Section 14.1 shall survive the expiration or earlier termination of this
Agreement for a period of five (5) years.
Section 14.2. Limitation on Manager's Liability. Manager shall have no liability, and
shall not be responsible for, claims (or associated costs including, without limitations, attorney
fees, court costs or damages assessed) under third party contracts entered into by Manager
pursuant to this Agreement if such claims arise out of a failure by the City to fund expenses
under such contracts for which the City has approved funding pursuant to the provisions of
Section 2.2.
ARTICLE XV
INSURANCE; BONDS
Section 15.1. Types and Amount of Coverage. Manager agrees to obtain insurance
coverage in the manner and amounts as set forth in Exhibit C, attached hereto, and shall provide
to the City promptly following the Effective Date a certificate or certificates of insurance
evidencing such coverage. Manager shall maintain such referenced insurance coverage at all
times during the Operating Term, and will not make any modification or change from these
specifications without the prior approval of the City. Each insurance policy shall include a
requirement that the insurer provide Manager and the City at least thirty (30) days written notice
of cancellation or change in the terms and provisions of the applicable policy. The cost of all
such insurance shall be an operating expense of the Facility, reimbursable to Manager by the
City.
Section 15.2. Rating; Additional Insureds. All insurance policies shall be rated no less
than A VIII in the most recent "Bests" insurance guide, shall be issued by insurance companies
licensed in the Commonwealth of Virginia or as otherwise agreed by the parties, and shall be in
such form and contain such provisions as are generally considered standard for the type of
insurance involved. The commercial general liability policy, automobile liability insurance
policy and umbrella or excess liability policy to be obtained by Manager hereunder shall name
City as an additional insured. The workers compensation policy to be obtained by Manager
hereunder shall contain a waiver of all rights of subrogation against the City. Manager shall
require that all users of the Facility, including without limitation licensees, third party ushers and
security personnel, and concessionaires, provide to Manager certificates of insurance evidencing
insurance appropriate for the types of activities such user is engaged in. Upon request, Manager
shall provide copies of such certificates to the City. If Manager subcontracts any of its
obligations under this Agreement, Manager shall either: (a) cover all subcontractors under its
policies of insurance, or (b) require each subcontractor not so covered to secure insurance that
will protect against applicable hazards or risks of loss as and in the minimum amounts
designated herein, and name Manager and the City as additional insureds.
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ARTICLE XVI
COMPLIANCE WITH EQUAL OPPORTUNITY LAWS,
REGULATIONS, RULES AND OTHER LAWS
Section 16.1. During the performance of this Agreement, Manager agrees that it:
(a) will not discriminate against any employee or applicant for employment
because of race, religion, color, sex, disability, national origin, ancestry, physical handicap, age,
or any other basis prohibited by the laws of the Commonwealth of Virginia relating to
discrimination in employment, except where there is a bona fide occupational qualification
reasonably necessary to the normal operation of Manager. Manager agrees to post in
conspicuous places, available to employees and applicants for employment, notices setting forth
the provisions of this nondiscrimination clause.
(b) will state in all solicitations or advertisements for employees placed by or
on behalf of Manager, that it is an equal opportunity employer. Notices, advertisements and
solicitations placed in accordance with Federal law, rule or regulation shall be deemed sufficient
for the purpose of meeting the requirements hereof.
(c) that it will provide a "drug-free workplace" for its employees and will
state in all solicitations or advertisements for employees placed by or on behalf of Manager that
it maintains a "drug-free workplace" being defined as a site for the performance of work where
the employees are prohibited from engaging in the unlawful manufacture, sale, distribution,
dispensation, possession or use of any controlled substance or marijuana during the performance
of the contract.
(d) will post in conspicuous places, available to employees and applicants for
employment, a statement notifying employees that the unlawful manufacture, sale, distribution,
dispensation, possession, or use of a controlled substance or marijuana is prohibited in the
contractor's or subcontractor's workplace and specifying the actions that will be taken against
employees for violations of such prohibition.
Section 16.2. Manager shall include the proVISIOns of Section 16.1 hereof in every
subcontract or purchase order over $10,000, so that the provisions will be binding upon each
such subcontractor or vendor.
Section 16.3. Manager shall be required to provide the City with its Federal employer
identification number.
ARTICLE XVII
PROHIBITION AGAINST CONTINGENT FEES
Section 17.1. Manager warrants that it has not employed or retained any company or
person, other than V AF or a bona fide employee working for Manager, to solicit or secure this
Agreement, and that it has not paid or agreed to pay any company or person, other than V AF or a
bona fide employee, any fee, commission, percentage, brokerage fee, gifts, or any other
consideration (collectively, a "Contingent Fee") contingent upon or resulting from the award or
making of this Agreement. For breach or violation of this warranty, the City may terminate this
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Agreement without liability or may, in its discretion, otherwise recover the full amount of such
Contingent Fee.
Section 17.2. Manager warrants that it will not accept any Contingent Fee from any
third party for the performance of any work under this Agreement except from artists, promoters
or their respective representatives in accordance with industry custom and practice.
ARTICLE XVIII
FUNDING CONTINGENCY
Notwithstanding anything contained herein to the contrary, the City's obligation to make
payments to Manager hereunder shall be contingent upon the City Council's annual
appropriation of funds for such purposes. The City contemplates that funding for the payments
to Manager called for hereunder shall be obtained from Operating Revenues for the Facility. To
the extent that Operating Revenues do not provide adequate funding for the payments to
Manager called for hereunder, the City's obligations to make any payments due or otherwise
payable hereunder shall be dependent upon City Council appropriating additional funds for such
purpose. If such additional funding is not appropriated, the City will give prompt written notice
thereof to the General Manager as provided in Section 7.2, which notice shall relieve the City
from the obligation to make any further payments to Manager in accordance with the provisions
of Sections 7.2 and 7.3. Upon its receipt of such written notice from the City, Manager shall
have the right to terminate this Agreement immediately upon delivery of written notice thereof to
the City, which termination shall be governed by the provisions set forth in Section 4.2 hereof.
The City agrees that it will not withhold funding for the Facility solely in an effort to cause the
termination of this Agreement.
ARTICLE XIX
PERMITS, LICENSES, TAXES AND LIENS
Manager shall use reasonable efforts to procure any permits and licenses required for the
business to be conducted by it hereunder. The City shall cooperate with Manager in applying for
such permits and licenses. Manager shall deliver copies of all such permits and licenses to the
City Contract Administrator. Manager shall pay promptly all taxes, excises, license fees and
permit fees of whatever nature arising from its operation, promotion and management of the
Facility. The cost of all such permits, licenses and taxes (other than taxes on compensation paid
to Manager hereunder) shall be an Operating Expense. Manager shall use reasonable efforts to
prevent mechanic's or materialman's or any other lien from becoming attached to the premises
or improvements at the Facility, or any part or parcel thereof, by reason of any work or labor
performed or materials furnished by any mechanic or materialman engaged by Manager,
provided that this provision shall not prevent Manager from contesting any lien resulting from
work Manager believes, in good faith, was not performed adequately.
ARTICLE XX
INDEPENDENT CONTRACTOR
Manager is an independent contractor and as such is not an employee of the City.
Manager is responsible for any and all Federal, State and local taxes required by law and
-26-
resulting from the compensation paid to Manager hereunder. Such taxes will not be in addition
to the compensation received by Manager hereunder but rather will be the sole obligation of
Manager, which shall indemnify, defend and hold the City harmless from any and all such taxes.
Nothing herein contained is intended or shall be construed in any way to create or establish the
relationship of partners or a joint venture between the City and Manager. None of the officers,
agents or employees of Manager shall be or be deemed to be employees of the City for any
purpose whatsoever.
ARTICLE XXI
COMPLIANCE WITH ENVIRONMENTAL LAWS
Section 21.1. Manager shall not use or permit the Facility or any part thereof to be used
to generate, manufacture, refine, treat, store, handle, transport or dispose of, transfer, produce or
process Hazardous Materials or Petroleum Products, except, and only to the extent, if necessary
to maintain the Facility and then, only in compliance with applicable Environmental Laws, nor
shall it knowingly permit, as a result of any intentional or unintentional act or omission on its
part or by any tenant, subtenant, licensee, guest, invitee, contractor, employee or agent, the
storage, transportation, disposal or use of Hazardous Materials or Petroleum Products on, from or
beneath the Facility excluding, however, those Hazardous Materials and Petroleum Products in
those amounts ordinarily found in the inventory of or used in the operation of facilities of the
type of the Facility, the use, storage, treatment, transportation and disposal of which shall be in
compliance with applicable Environmental Laws. Upon knowledge of the occurrence of any
release or threatened release of Hazardous Materials or Petroleum Products, Manager shall
promptly notify the City.
Section 21.2. Manager shall comply with, and take reasonable actions to ensure that its
agents, licensees, employees, and contractors comply with, applicable Environmental Laws so as
to keep the Facility free and clear of any violation of such Environmental Laws. Upon receipt of
notice from any person with regard to the release of Hazardous Materials or Petroleum Products
on, from or beneath the Facility, Manager shall give prompt written notice thereof to the City.
Section 21.3. All expenses incurred by Manager in ensuring compliance with the terms
and conditions set forth in this Article XXI shall be considered operating expenses of the
Facility, reimbursable to Manager by the City, except to the extent that such expenses (including,
without limitation, expenses incurred to clean up and remove any Hazardous Materials or
Petroleum Products from the Facility) result from Manager's failure to comply, or to ensure the
compliance by others, with such terms and conditions.
ARTICLE XXII
NAME AND LOGOS
Use of City and Facility Names and Logos. Manager and its Affiliates shall be permitted
to use the name and logo of the Facility and the City (but not the City Seal) for the purpose of
promoting the Facility, subject to the approval of the City Contract Administrator. Manager
agrees that it shall not license or otherwise grant use of the City and Facility names and logos (i)
to any third party vendors, suppliers or service providers of Manager or the Facility, or (ii) to any
third party to be used on any novelties or merchandise.
-27-
ARTICLE XXIII
MINORITY P ARTICIP A TION REQUIREMENTS
Section 23.1. Manager shall comply with the requirements of Virginia Beach City Code
g2-224.1 through g2-224.8 pertaining to minority participation in City contracting.
Section 23.2. By executing this Agreement, Manager accepts the right of the City to
appoint a representative to monitor Manager's compliance with the commitments and
requirements of this Article. The City or its designee shall have the right to review all relevant
documents of Manager relating to the participation of Minority-owned Businesses and W oman-
owned Businesses on an ongoing basis.
Section 23.3. The City reserves the right to evaluate Manager's performance with regard
to the commitments and requirements of this Article on an annual basis.
ARTICLE XXIV
TAX EXEMPTION COVENANT - FINANCING DOCUMENTS
Section 24.1. Tax-Exempt Bonds. Manager acknowledges that the City is financing the
Facility through the issuance of tax-exempt bonds ("Tax-Exempt Bonds"), the interest on which
is excludable from gross income for Federal income tax purposes under Section 103(a) and
related provisions of the Internal Revenue Code of 1986, as amended (the "Code"), and
applicable rules and regulations. Manager agrees that, in addition to other contracts requiring the
approval of the City, Manager will not execute any of the following described contracts unless it
has received the City's written approval:
(i) Any contract relating to the Facility that grants a leasehold interest,
term for years, or other real estate interest in the Facility, or grants a right to use the
Facility on a basis different from that of the general public, unless such use satisfies a
short-term use exception as described in Section 1.141-3( d)(3) of the Treasury
Regulations.
(ii) Any contract for the use of the Facility for shows, programs,
conventions and other events (A) where the term of such use exceeds fifty (50) days in
the aggregate, including all renewal options or (B) where the compensation for such use
is on a basis other than at fair market value (as such term is used for Federal income tax
purposes).
(iii) Any contract for the use of the Facility for shows, programs,
conventions and other events where the right of the user to the Facility is that of a full
legal possessory interest in the Facility, rather than that of a transient occupant, unless
such contract provides for use on a fixed fee basis (excluding the sale of merchandise or
concessions in respect thereto which may be on a percentage of merchandise or
concession revenues).
Section 24.2. Financing Documents. The City has provided Manager with a copy of the
relevant provisions of the Financing Documents that impose limitations, restrictions or
-28-
conditions upon the use and operation of the Facility. Manager and the City each agree to
operate and use the Facility in accordance with such provisions.
ARTICLE XXV
GUARANTY OF PERFORMANCE
Section 25.1. Comcast-Spectacor, L.P. is delivering, contemporaneously herewith, in the
form attached hereto as Exhibit F, an executed agreement (the "Performance Guaranty") to the
City pursuant to which Comcast-Spectacor, L.P. is guaranteeing the performance of Manager
under this Agreement, including, without limitation, payment of any amounts owed by Manager
to the City. Manager acknowledges that such Performance Guaranty must remain in effect at all
times during the Operating Term.
ARTICLE XXVI
MISCELLANEOUS
Section 26.1. Force Maieure. Except as otherwise provided herein, neither party shall
be obligated to perform, and neither party shall be deemed to be in default of its performance, if
prevented by: (a) fire, earthquake, hurricane, wind, flood, act of God, riot, terrorism, or civil
commotion occurring at the Facility, or (b) by law, ordinance, rule, regulation, or order of any
public or military authority stemming from the existence of economic or energy controls,
hostilities, war or governmental law and regulation, or (c) labor dispute which results in a strike
or work stoppage affecting the Facility or services described in this Agreement.
If all or substantially of the Facility is destroyed, damaged or rendered materially
untenantable by fire, storm or other casualty or by any governmental or regulatory action, or if
title to or the use of all or part of the Facility is taken under the exercise of eminent domain, or
lost because of failure of title, the City may terminate this Agreement upon thirty (30) days
written notice to Manager, whereupon the City shall be released from all further obligations to
Manager including, without limitation, payment of such compensation as required under
Section 3 hereof.
Section 26.2. Assignment. The City is entering into this Agreement in recognition of
and in reliance on the expertise, reliability and competence of Manager and its management in
matters pertinent thereto. The performance of the obligations imposed upon Manager under this
Agreement will not be assignable by it to any other party unless the City, within its sole
discretion, consents to such assignment in writing. Any purported assignment in contravention
of this Section shall be void. Furthermore, the services to be provided by Manager may not be
subcontracted without the City's prior written consent, which consent may be withheld in its sole
discretion, except that the City acknowledges and agrees that V AF has provided services
pursuant to the terms of the Pre-Opening Agreement and that V AF may provide similar services
under this Agreement on behalf of Manager, including, without limitation, services related to
event booking and scheduling, marketing, promotion, event management and fundraising.
Notwithstanding the foregoing, nothing herein shall be construed to prohibit Manager from
engaging in transactions or reorganizations involving Affiliates which are intended to
accomplish internal corporate purposes and which do not materially alter or affect the manner in
which services are provided by Manager hereunder.
-29-
Section 26.3. Notices. All notices required or permitted to be given pursuant to this
Agreement shall be in writing and delivered personally or sent by registered or certified mail,
return receipt requested, or by generally recognized, prepaid, overnight air courier services, to
the address and individual set forth below. All such notices to either party shall be deemed to
have been provided when delivered, if delivered personally, three (3) days after mailed, if sent by
registered or certified mail, or the next business day, if sent by generally recognized, prepaid,
overnight air courier services.
If to the City:
Emily Spruill
City of Virginia Beach
P.O. Box 66129
Virginia Beach, Virginia 23466-6129
With a copy to:
City of Virginia Beach
Office of the City Attorney
Municipal Center-Building 1
2401 Courthouse Drive
Virginia Beach, Virginia 23456-9004
If to Manager:
Global Spectrum, L.P.
3601 South Broad Street
Philadelphia, Pennsylvania 19148
Attn: Chief Operating Officer
With a copy to:
Philip I. Weinberg, Esquire
Comcast Spectacor, L.P.
3601 South Broad Street
Philadelphia, Pennsylvania 19148-5290
The designation of the individuals to be so notified and the addresses of such parties set
forth above may be changed from time to time by written notice to the other party in the manner
set forth above.
Section 26.4. Severability. If a court of competent jurisdiction determines that any term
of this Agreement is invalid or unenforceable to any extent under applicable law, the remainder
of this Agreement (and the application of this Agreement to other circumstances) shall not be
affected thereby, and each remaining term shall be valid and enforceable to the fullest extent
permitted by law.
Section 26.5. Governing Law. The Agreement is entered into under and pursuant to,
and is to be construed and enforceable in accordance with, the laws of the Commonwealth of
Virginia, without regard to its conflict of laws principles.
Section 26.6. Amendments. Neither this Agreement nor any of its terms may be
changed or modified, waived, or terminated (unless as otherwise provided hereunder) except by
an instrument in writing signed by an authorized representative of the party against whom the
enforcement of the change, waiver, or termination is sought.
Section 26.7. Waiver: Remedies. No failure or delay by a party hereto to insist on the
strict performance of any term of this Agreement, or to exercise any right or remedy consequent
to a breach thereof, shall constitute a waiver of any breach or any subsequent breach of such
term. No waiver of any breach hereunder shall affect or alter the remaining terms of this
Agreement, but each and every term of this Agreement shall continue in full force and effect
with respect to any other then existing or subsequent breach thereof. The remedies provided in
this Agreement are cumulative and not exclusive of the remedies provided by law or in equity.
-30-
Section 26.8. Entire Agreement. This Agreement, including the Operations Manual, the
exhibits and the schedules attached hereto and forming a part hereof, sets forth all the covenants,
promises, agreements, conditions and understandings between Manager and the City concerning
the subject matter of the Agreement, and there are no covenants, promises, agreements,
conditions or understandings, either oral or written, between them other than as set forth herein.
In case of conflict, this Agreement will take precedence over the RFP or the RFP Response.
Section 26.9. Counterparts. This Agreement may be executed in counterparts, each of
which shall constitute an original, and all of which together shall constitute one and the same
document.
-31-
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be executed
on behalf of such party by an authorized representative as of the date first set forth above.
CITY OF VIRGINIA BEACH
By: City of Virginia Beach
GLOBAL SPECTRUM, L.P.
By: Global Spectrum, Inc.,
its general partner
By:
Name: James Spore
Title: City Manager
By:
Name:
Title:
ATTEST:
ATTEST:
Name
Name
Approved as to Content:
Office of Cultural Affairs
Approved as to Legal Sufficiency:
Office of the City Attorney
-32-
CORPORATE ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA )
)
CITY/COUNTY OF PHILADELPHIA )
IN WITNESS WHEREOF, on this _ day of 2007, before me, the
undersigned, a Notary Public in and for the City/County and State aforesaid, came
of Global Spectrum, Inc., a corporation duly organized,
incorporated and existing under and by virtue of the laws of the Commonwealth of Pennsylvania;
who is personally known to me to be such officer and who is personally known to me to be the
same person who executed as such officer of the corporation the within instrument on behalf and
as general partner of Global Spectrum, L.P., and such person duly acknowledged the execution
of the same to be the act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official
seal the day and year last above written.
Notary Public
My Appointment Expires:
-33-
EXHIBIT A
COMMUNICATIONS AND INFORMATION
TECHNOLOGY SERVICE
The parties agree to the following terms with respect to communications and information
technology services at the Facility.
(i) City Trusted Network
a. The City shall be responsible for all components of the City's trusted
network at the Facility ("Trusted Network"). The City shall maintain
ownership of all components of its Trusted Network.
b. The City shall operate all components of its Trusted Network, and shall
provide Internet access, standard City desktop productivity software,
desktop computers, and printers exclusively to City employees located at
the Facility.
c. The City shall maintain the Trusted Network and all expenses related to
any modifications and/or additions shall be billed to the City's Office of
Cultural Affairs
d. Manager shall not be responsible for any expenses incurred by the City in
operating or maintaining any of the components listed in item (c) above.
Such expenses shall be paid by the City through its Office of Cultural
Affairs.
(ii) Facility / Manager's Network
a. Manager shall install (excluding network cabling), operate, and maintain
all components of its network infrastructure located at the Facility
("Manager's Network"). Manager shall sustain all components of
Manager's Network through maintenance agreements with the
manufacturers and version upgrades. Manager shall sustain all
components of Manager's Network to the current product version. All
expenses associated therewith shall be included in Manager's Expense
Budget and funded by the City.
b. Manager shall not make any additions and/or modifications to the
Manager's Network infrastructure without prior consultation and approval
of the City's Department of Communications and Information Technology
Systems Support Division. Such network infrastructure shall include, but
shall not be limited to, wiring, cabling, switches, and routers. Expenses
incurred to make modifications or additions to the network infrastructure
shall be billed to the City's Office of Cultural Affairs. All additions or
modifications shall comply with the City's Network Standards.
-34-
c. Manager shall obtain prior approval from the City for any changes or
modifications to the Facility's physical plant.
d. Internet Access
1. In the event that Manager desires to provide Internet access to its
employees, agents, and/or subcontractors located at the Facility
("Manager's Employees"), or to other third parties utilizing the
Facility for Facility-related business ("Third Parties"), Manager
shall be responsible for providing Internet access for Manager's
Employees and/or Third Parties, the costs of which shall be
included in Manager's Expense Budget and funded by the City.
Manager, Manager's Employees and Third Parties shall not have
access to the City's Trusted Network.
11. In the event that Manager desires to provide Internet access to the
public at the Facility, Manager shall be responsible for providing
such Internet access to the public. The public shall not have access
to the City's Trusted Network.
111. All expenses incurred by Manager, Manager's Employees, and
Third Parties for Internet access at the Facility shall be included in
Manager's Expense Budget and shall be subject to funding by the
City.
e. Manager shall purchase, install, operate and maintain furniture, fixtures,
and equipment ("FF&E") for the Facility, to include network components
(excluding network cabling), and desktop computer hardware and
software. The purchase of such FF&E shall be subject to the approval of
the City. The cost of the FF&E shall be included in Manager's Expense
Budget and shall be subject to funding by the City.
f. Manager shall purchase, operate and maintain (or engage a third party to
maintain) specific business software applications, application servers,
printers, and any other ancillary hardware and software necessary for the
performance of Manager's duties under this Agreement. Such business
software applications shall reside on the Facility's computer hardware and
Manager's Network, not on the City's computer hardware or Trusted
Network. All the costs associated with the foregoing shall be included in
the Manager's Expense Budget and shall be subject to approval and
funding by the City.
g. Manager shall be responsible for licensing all software installed at the
Facility on Manager's computer hardware and in Manager's Network. For
the purposes of software licensing and adherence to intellectual property
laws, the Facility is not considered part of the City's information
technology enterprise or the City's Microsoft Enterprise Agreement.
-35-
Accordingly, Manager shall not have access to any of the City's
information technology licenses. The City shall maintain ownership of all
business software applications and associated hardware funded by the
City, subject to the provisions of Section 2.2(i) of the Operating
Agreement to which this Exhibit A is an integral part. All the costs
associated with the foregoing shall be included in the Manager's Expense
Budget and shall be subject to approval and funding by the City.
h. Manager shall provide to the City, upon request, access to Manager's non-
proprietary data relating to the Facility. Such data shall include, without
limitation, information relating to ticketing, marketing, sales, accounting,
utilities consumption, and customer or exhibition lists or similar materials
for the use of the Facility. Manager shall provide data to the City within
fifteen (15) days of receipt of such request. Manager shall provide data in
a non-proprietary, open standard electronic format that is readable by the
City.
(iii) City Telephone System
a. The City shall maintain the City installed telephone system at the Facility.
The telephone system shall be utilized by City employees, Manager and
Manager's Employees, and Third Parties. The City shall be responsible
for the installation of cabling for the telephone system. The City shall
own all components of the telephone system.
b. The City shall provide telephone service to the Facility and shall issue
standard City telephone equipment for use at the Facility.
c. Manager, Manager's Employees, and Third Parties shall utilize the City's
telephone system at the Facility only for conducing Facility-related
business.
d. A single telephone bill shall be submitted monthly by the City's
Department of Communications and Information Technology
Telecommunications Division to the City's Office of Cultural Affairs for
payment. The billing amounts will be based on the same rates offered to
all City agencies. The bills shall include all expenses incurred by the City,
Manager, Manager's Employees, and Third Parties for telephone service
at the Facility.
e. The City shall provide the same telephone services offered to other City
agencies such as: Long Distance, Voice Mail, ACD, telephone system
maintenance, moves, adds, changes and trouble ticket processing.
f. The City shall maintain the voice and data cabling and all expenses related
to any modifications and/or additions shall be billed to the City's Office of
Cultural Affairs.
-36-
EXHIBIT B
CHART OF ACCOUNTS
-37-
EXHIBIT C
INSURANCE; BONDS
At all times during this Agreement, Manager shall:
(a) maintain commercial generalliability insurance, including products and completed
operations, bodily injury and property damage liability, contractual liability, independent
contractors liability and personal and advertising injury liability against claims occurring on, in,
or about the Facility, or otherwise arising under this Agreement;
(b) maintain umbrella or excess liability insurance;
( c) maintain commercial automobile liability insurance, including coverage for the
operation of owned, leased, hired and non-owned vehicles;
(d) maintain appropriate workers compensation and employer's Ii ability insurance as
shall be required by and be in conformance with the laws ofthe Commonwealth of Virginia; and
( e) maintain professional liability insurance including employment practices liability
coverage.
Such liability coverage shall be maintained in the following minimum amounts throughout the
Operating Term and shall include endorsements naming the City as joint loss payee with respect
to any funding relating to this Agreement:
A. COMMERCIAL GENERAL LIABILITY
$1,000,000 per occurrence
$1,000,000 personal and advertising injury
$2,000,000 general aggregate
$1,000,000 products-completed operations aggregate
B. AUTOMOBILE LIABILITY
$1,000,000 per accident (PI and PD combined single limit)
$1,000,000 uninsured/underinsured motorist
C. UMBRELLA OR EXCESS LIABILITY
$10,000,000 per occurrence and aggregate
D. WORKERS COMPENSATION: STATUTORY
-38-
E. EMPLOYER'S LIABILITY
$100,000 each accident-bodily injury by accident
$500,000 policy limit-bodily injury by disease
$100,000 each employee-bodily injury by disease
F. PROFESSIONAL LIABILITY/ERRORS & OMISSIONS (Claims Made)
$1,000,000 each occurrence/aggregate
Policy is to include:
Entity Coverage
Employment Practices Liability
G. CRIME COVERAGE (Including Commercial Crimes and Employee Dishonesty)
Coverage on all Manager employees
Limit: $1,000,000
-39-
EXHIBIT D
INVENTORY SCHEDULE
-40-
EXHIBIT E
INVENTORY SCHEDULE
GlobalSpectrum Methods of Procurement
The Sandler Center For The Performing Arts*
Limits Procedures
Small Purchases
$0 - $1,000 . No competition is required to purchase goods or services
under $1,000. Global Spectrum is encouraged to seek out
minority or woman owned businesses for these
transactions.
$1,001 - . Global Spectrum solicits either telephone or wri tten
$30,000 quotations, depending on dollar volume and amount of
competition. When practicable, Global Spectrum solicits
minimum of three (3) written quotations, depending on
dollar volume and amount of competition. Of the three (3)
quotations solicited, the Global Spectrum will solicit at
least one bid from a minority or woman owned business if
available.
$30,001 - . Global Spectrum solicits written informal quotations.
$50,000 When practicable, Global Spectrum solicits wri tten
informal quotations to a minimum of four (4) bidders). Of
the four quotations solicited, Global Spectrum will solicit
at least two bids from minority or woman owned
businesses if available.
$0 - $1,000 . Maintenance contract and repairs for office equipment and
shop equipment under $1,000 do not require competition.
. Subscriptions for publications under $1,000 do not require
competition.
Formal Bids
2: $50,000 . Global Spectrum solicits competitive formal bids. Global
Spectrum will include at least three minority or woman
owned businesses that are included on the list maintained
by the City Purchasing Division. This bidder listing will
be made available for use by Global Spectrum.
Sole Source Procurements
None . Global Spectrum procures the goods/services from the
sole source vendor and documents the basis for sole
source.
Emere:encv Purchases
None . Global Spectrum shall secure, by open market procedure,
at lowest obtainable price, any supplies or contractual
services, regardless of the amount.
. Global Spectrum shall maintain a report documenting the
circumstances of the emergency.
41
*Notwithstanding the foregoing, (i) Global Spectrum shall not be required to solicit quotations or
bids for media purchases (e.g. buys of time/space in newspaper, radio, internet, television), or
purchases of artist or performer services, and (ii) Global Spectrum is entitled to use criteria such
as experience, quality of services, references, among others, in awarding contracts and Global
Spectrum shall not be obligated to rely on price as the sole determining factor in awarding bids
to, or otherwise selecting, any service providers.
-42-
22764.000268 RICHMOND 1908812v12
- 28 -
Item V-J.2.
RESOLUTION/ORDINANCES
ITEM #56929
Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED:
Resolution requesting Members of the City's local General Assembly
Delegation sponsor and/or support legislation that will realize the goals
and objectives set forth in Virginia Beach's 2008 Community Legislative
Agenda [deferred September 11,2007].
Voting:
9-2 (By Consent)
Council Members Voting Aye:
Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R.
Jones, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva,
Rosemary Wilson and James L. Wood
Council Members Voting Nay:
William R. "Bill" DeSteph and Reba S. McClanan
Council Members Absent:
None
October 9, 2007
1 A RESOLUTION ADOPTING THE CITY'S 2008
2 COMMUNITY LEGISLATIVE AGENDA AND
3 REQUESTING THAT MEMBERS OF THE CITY'S
4 LOCAL DELEGATION TO THE GENERAL
5 ASSEMBLY SPONSOR AND/OR SUPPORT
6 LEGISLATION THAT WOULD CARRY OUT THE
7 GOALS AND OBJECTIVES SET FORTH THEREIN
8
9 WHEREAS, the City Council traditionally adopts a Community Legislative
10 Agenda and requests member of the City's local Delegation to the General Assembly
11 sponsor and/or support legislation therein; and
12
13 WHEREAS, the City Council has considered a number of goals and objectives
14 for inclusion in the City's 2008 Community Legislative Agenda; and
15
16 WHEREAS, the City Council also solicited input from community groups in order
17 to advise its General Assembly Delegation of the goals and objectives of those
18 organizations; and
19
20 WHEREAS, City Council received the Community Group Items which are
21 included in a separate section of the City's 2008 Community Legislative Agenda and
22 Council appreciates the thoughtful participation of community groups in the community
23 legislative agenda process.
24
25 NOW THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
26 VIRGINIA BEACH, VIRGINIA:
27
28 1. That the City Council hereby adopts the City's 2008 Community
29 Legislative Agenda, which is attached hereto as Exhibit A and is hereby incorporated by
30 reference.
31
32 2. That the City Council hereby forwards the Community Group Items,
33 without endorsing them, to the City's Delegation to the General Assembly for their
34 consideration.
35
36 BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA
37 BEACH, VIRGINIA:
38
39 That the City's Delegation to the General Assembly is hereby requested to
40 sponsor and/or support legislation in the 2008 Session of the General Assembly that
41 would carry out the goals and objectives of the City as set forth in its Community
42 Legislative Agenda.
43
44 BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA
45 BEACH, VIRGINIA:
46
47 That the City Clerk is hereby directed to transmit a copy of this resolution to each
48 member of the City's local Delegation to the General Assembly.
49
50 Adopted by the City Council of the City of Virginia Beach, Virginia, this9th
51 day of --Octobor ,2007.
APPROVED TO CONTENT:
APPROVED AS TO LEGAL
SUFFICIENCY:
;::e~
City Attorney's OffiCY
CA 10492
October 3, 2007
R-3
CITY OF VIRGINIA BEACH
COMMUNITY LEGISLATIVE AGENDA
AND COMMUNITY GROUP ITEMS
2008 GENERAL ASSEMBLY SESSION
~~~ -.,
iIOF ~' '~2WJj":P.2L?fl~H~.:F~---.!
j ..-'^
BUILDING ~~A COMMUNITY FOR A LIFETIME"
MUNICIPAL CENTER BUILDING ONE
2401 COURTHOUSE DRIVE, SUITE 234
VIRGINIA BEACH, VIRGINIA 23456
FI!
2008 COMMUNITY LEGISLATIVE AGENDA
CITY OF VIRGINIA BEACH
TABLE OF CONTENTS
TABLE OF CONTENTS
PREFACE
VIRGINIA CODE CHANGE REQUESTS
1. Tax, Fee & Spending Task Force - Place Holder
2. Changes to Animal Fees - Place Holder
3. Environmental Impact Report for 100% Locally Funded Highway Projects
4. Loss of Medicaid Eligibility for Teens in Foster Care with Earned Income
5. Weapons in Public Buildings Where Health Services are Provided
6. Achieving Revenue Neutrality for Local Telecommunications Taxes
7. Definition of "Firearms"
8. Reimbursement for Transportation During Civil Admissions
9. Smoke-Free Restaurants
10. Creation of a State Insurance "Wind Pool"
FUNDING ITEMS
1. BRAC Funding
2. Additional Group-Home Beds in Locality for Youth Out of Home Placement
3. CSA Administrative Allocation
4. Support for Additional State General Fund Dollars for CSB Programs
5. Funding for Public Health Services
6. Virginia Beach Lifelong Learning Center (Joint Use Library)
7. Pleasant Hall Purchase
8. Adam Thoroughgood House, Ferry Plantation House and Lynnhaven House
9. Virginia Aquarium & Marine Science Center
10. Sheriffs Work Release Facility
11. Virginia Beach Convention Center Funding
12. Sandler Center for the Performing Arts
1
2-11
2
2-5
5-6
6-7
7
7-9
9-10
10
1 0-11
11
12-22
12
13
13-14
14
14-15
15-16
16-17
17-18
18-19
20
20-21
21-22
2008 COMMUNITY GROUP ITEMS
CITY OF VIRGINIA BEACH
TABLE OF CONTENTS
COMMUNITY GROUP ITEMS
1. Adequate Public Facilities
2. Funding for Mass Transit
3. Public Meeting Notice & Participation
4. Motorized Vehicle Use by Minors
5. Enforcement of Environmental Laws
6. Equalization of Penalties for Driving
7. Public Disclosure of Half-Way or Transitional Housing
8. Bayside Recreation Center
9 . Wetlands Board
23-26
23
23
24
24
25
25
25-26
26
26
2008 COMMUNITY LEGISLATIVE AGENDA
CITY OF VIRGINIA BEACH
PREFACE
The 2007 Session of the General Assembly was a watershed for action by the General
Assembly on transportation. By allowing Hampton Roads to establish a transportation
authority with certain fees and the ability to toll major projects, the region can better
control its destiny when it comes to transportation infrastructure improvements. For this
action, this City Council is very appreciative. However, the statewide funding program
still remains inadequate, especially with the possible loss of the civil penalties monies
and the dependence on a surplus in the General Fund for a portion of the new statewide
transportation funding program thought to not exist for the next biennium. Furthermore,
although the General Assembly has put substantial funds into maintenance, the natural
growth of maintenance funding needs will very shortly deplete those additional funds.
There will again be a call on the construction budget to fund maintenance, which will
decrease funding for transportation, including urban allocations. Much work remains to
be done.
Furthermore, although the re-benchmarking of education will mean an additional $1.2
billion or more for local governments over the next biennium, the true cost of re-
benchmarking is perhaps 2-3 times that amount. This is evident when the City of
Virginia Beach expends $160 million into education above what is required by the
Standards of Quality. These funds are not to meet "local aspirations" as some in the
General Assembly have categorized them; they are there to provide a quality education
for our children so that they may be competitive in the world marketplace. The General
Assembly needs to strive to fully fund the true cost of education.
There continues to be a call by all local governments for the General Assembly to fully
fund all the traditional State government services, such as Courts, Corrections, Mental
Health, etc. With localities increasingly being called upon to provide funds that the State
should be responsible for, the local governments must fall back on the one tax source
available and that is the property tax. Although the General Assembly is moving toward
a Homestead Exemption, this will only exacerbate the problem for local governments.
The General Assembly needs to truly and fully fund the cost of statewide services and
responsibilities.
City Council, in concert with members of the General Assembly, has created a Tax and
Revenue Task Force, which will be making detailed requests to the General Assembly in
the near future.
CITY OF VIRGINIA BEACH
2008 REQUESTED CODE OF VIRGINIA CHANGES
1. TAX, FEE & SPENDING TASK FORCE - PLACE HOLDER
Background:
The City of Virginia Beach has created a taskforce to review revenues and expenses.
This group will report later this year and therefore a "place holder" is inserted for its
future recommendations.
2. CHANGES TO ANIMAL FEES
Dave Hansen
Chief of Finance & Technology
City Manager's Office
Background:
The City would like amendments to the Code of Virginia provisions dealing with pet
license fees, impounding fees and cremation of animals. Current licensing compliance
rates within the municipality are below 10%. The City's existing animal control facility
is almost 40 years old and no longer meets the needs of our citizens. Adjusting the fee
caps would allow the City to appropriately plan and resource the life cycle replacement of
the facility, equipment, and vehicles necessary to provide this critical public service.
Also enclosed is a request to establish an escalating recovery fee when animals are
impounded. By increasing the fee for each subsequent impoundment, we will reinforce
that owners are responsible for controlling their pets. The City has no capability for
providing for large animal disposal. Current practices require private citizens to bury
remains or, at huge expense, contract privately for disposal. By eliminating the
incineration fee cap, the City could calculate the operational and capital costs needed to
make the proper investment to support this growing requirement. This will ensure that
the City's true cost for disposal of deceased animals, both large and small, is being
covered by a realistic fee structure. Increasing the cap for non-altered dog and cat
licenses will allow the City to enhance the incentive for citizens to neuter and spay their
pets. It would be the intent of the City to raise the neutered and spayed pet license fee to
$7/dog/ and $5/cat, and the non-neuteredlnon-spayed dog and cat fees to $25.
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Request:
1. Remove the cap rate on cremation fees of $25.00 for small animals and $75.00 for
large animals. Removing the cap would allow localities to charge fees to recoup the
funds they spend on cremating animals. Each locality could then set fees as
req uired.
State Law: 18.2-510. Burial or cremation of animals or fowls which have died
A. When the owner of any animal or grown fowl which has died knows of such death,
such owner shall forthwith have its body cremated or buried, and, if he fails to do so, any
judge of a general district court, after notice to the owner if he can be ascertained, shall
cause any such dead animal or fowl to be cremated or buried by an officer or other person
designated for the purpose. Such officer or other person shall be entitled to recover of the
owner of every such animal so cremated or buried the actual cost of the cremation or
burial, not to exceed seyent)' five dollars, and of the owner of every such fowl so
cremated or buried the actual cost of the cremation or burial, not to exceed five dollars, to
be recovered in the same manner as officers' fees are recovered, free from all exemptions
in favor of such owner. Any person violating the provisions of this section shall be guilty
of a Class 4 misdemeanor.
2. Increase the fee cap for dog and pet licenses to $25.00. The current cap of$10.00
is pre-1993.
State Law: S 3.1-796.87. Amount oflicense tax.
The governing body of each county or city shall impose by ordinance a license tax on the
ownership of dogs and cats within its jurisdiction. The governing body of any county,
city or town which has adopted an ordinance pursuant to subsection B of S 3.1-796.85
shall impose by ordinance a license tax on the ownership of cats within its jurisdiction.
The governing body may establish different rates of taxation for ownership of female
dogs, male dogs, spayed or neutered dogs, female cats, male cats, and spayed or neutered
cats. The tax for each dog or cat shall not be less than one dollar and not more than tell-
dollars for each year. If the dog or cat has been spayed, the tax shall not
exceed the tax provided for an unaltered dog or cat._Any ordinance may provide for a
license tax for kennels of ten, twenty, thirty, forty or fifty dogs or cats not to exceed fifty
dollars for anyone such block of kennels. 1984, cc. 248,492, S 29-213.57; 1986, c. 169;
1987, c. 488; 1993, c. 817; 1994, c. 108; 2006, c. 836.)
3. Authorize localities to assess an additional recovery fee when a dog/cat is
impounded for running at large. Such a fee shall not exceed $50 on the first
occasion the dog/cat is impounded, $75 on the second occasion the dog/cat is
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impounded, or $!SO on the third or subsequent occasion the dog/cat is
impounded. This assessment shall be in addition to any fine or penalty imposed by
a court as well as the actual expenses incurred of keeping the animal impounded.
S 3.1-796.96. County or city pounds; confinement and disposition of animals; affiliation
with foster care providers; penalties; injunctive relief.
A. The governing body of each county or city shall maintain or cause to be maintained a
pound and shall require does/cats running at large without the tag required by S 3.1-
796.92 or in violation of an ordinance passed pursuant to S 3.1-796.93 to be confined
therein. Nothing in this section shall be construed to prohibit confinement of other
companion animals in such a pound. The governing body of any county or city need not
own the facility required by this section but may contract for its establishment with a
private group or in conjunction with one or more other local governing bodies. The
governing body shall require that:
1. The pound shall be accessible to the public at reasonable hours during the week;
2. The pound shall obtain a signed statement from each of its directors, operators, staff, or
animal caregivers specifying that each individual has never been convicted of animal
cruelty, neglect, or abandonment, and each pound shall update such statement as changes
occur;
3. If a person contacts the pound inquiring about a lost companion animal, the pound
shall advise the person if the companion animal is confined at the pound or if a
companion animal of similar description is confined at the pound;
4. The pound shall maintain a written record of the information on each companion
animal submitted to the pound by an animal shelter in accordance with subsection D of S
3.1-796.96:2 for a period of 30 days from the date the information is received by the
pound. If a person contacts the pound inquiring about a lost companion animal, the pound
shall check its records and make available to such person any information submitted by
an animal shelter or allow such person inquiring about a lost animal to view the written
records;
5. The pound shall maintain a written record of the information on each companion
animal submitted to the pound by a releasing agency other than a pound or animal shelter
in accordance with subdivision F 2 of S 3.1-796.96:5 for a period of 30 days from the
date the information is received by the pound. If a person contacts the pound inquiring
about a lost companion animal, the pound shall check its records and make available to
such person any information submitted by such releasing agency or allow such person
inquiring about a lost companion animal to view the written records; and
6. The pound shall maintain a written record of the information on each companion
animal submitted to the pound by an individual in accordance with subdivision A 2 of S
3.1-796.96:7 for a period of 30 days from the date the information is received by the
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pound. If a person contacts the pound inquiring about a lost companion animal, the pound
shall check its records and make available to such person any information submitted by
the individual or allow such person inquiring about a lost companion animal to view the
written records.
B. An animal confined pursuant to this section shall be kept for a period of not less than
five days, such period to commence on the day immediately following the day the animal
is initially confined in the facility, unless sooner claimed by the rightful owner thereof.
The operator or custodian of the pound shall make a reasonable effort to ascertain
whether the animal has a collar, tag, license, tattoo, or other form of identification. If such
identification is found on the animal, the animal shall be held for an additional five days,
unless sooner claimed by the rightful owner. If the rightful owner of the animal can be
readily identified, the operator or custodian of the pound shall make a reasonable effort to
notify the owner of the animal's confinement within the next 48 hours following its
confinement.
If any animal confined pursuant to this section is claimed by its rightful owner, such
owner may be charged with the actual expenses incurred in keeping the animal
impounded. Such an owner may be chareed an additional fee not to exceed $50 the
first time the doe/cat is impounded. $75 the second time the doe/cat is impounded.
and $MO~)~ the third or subsequent time the doe/cat is impounded pursuant to
this section. This fee shall be in addition to any fine or penaltv imposed bv the
court.
3. ENVIRONMENTAL IMPACT REpORT FOR 100% LOCALLY FUNDED HIGHWAY
PROJECTS
Phil Davenport
Interim Director
Department of Public Works
Background:
During the last General Assembly session, HB3202 was passed which amends State Code
section 10.1 -1188 to require that even 100% locally funded highway projects (and only
highway/road projects - all other types of local projects, regardless of impact, remain
exempt) of $100,000 or more must develop and submit an environmental impact report to
the Virginia Department of Transportation (VDOT). This legislation needs to be
repealed for the following reasons:
1. Local projects of any type, if they have environmental impacts, must go through
the appropriate state and federal environmental agencies to obtain the needed
environmental permits. The localities perform this coordination directly. The
environmental agencies carefully review the project environmental impacts (and often
require an environmental document/report) and frequently require modifications to the
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project design to minimize impacts before issuing the necessary environmental permits.
Unless VDOT is being authorized to not only require an environmental report for its
review, but also to issue the needed permits, requiring the City to submit an
environmental reput to VDOT, offers no value. In fact, this will needlessly add time,
expense and red tape to any local highway project of $1 00,000 or more.
2. VDOT charges fees to review various plans (such as site plans within the limits of
a VDOT project); if VDOT intends to charge fees for review of legislatively mandated
local environmental reports for local highway projects, the locality's cost for the project
has just been increased.
3. Major projects are defined as those costing $100,000 or more. If the legislation
must remain, this amount needs to be significantly increased. Just as gas no longer costs
30 cents a gallon, $100,000 won't even pay for a signal installation. It should be raised to
at least $1,000,000 and preferably $5,000,000.
So in summary, unless VDOT has been authorized to issue all required state
environmental permits when it accepts a local environmental highway project report, the
requirement for localities to submit environmental reports to VDOT for 100% locally
funded highway projects is redundant (because localities already must deal directly with
state and federal environmental agencies) this legislation will add significant costs and
time to all affected locally funded highway projects.
Change in the Code or Acts of Assembly required, if applicable:
Repeal this legislation or greatly increase the monetary value of projects that are subject
to this requirement.
4. Loss OF MEDICAID ELIGIBILITY FOR TEENS IN FOSTER CARE WITH EARNED
INCOME
Dr. Terry Jenkins
Department Director
Department of Human Services
Background:
Under current Virginia law (12V AC 30-40-280), the local Department of Social Services
must discontinue Medicaid to a foster care child between the ages of 19 and 21 if the
foster child earns more than $193.74 in gross income per month. These foster children
need to have the benefit of Medicaid to cover the cost of their medical expenses, and they
also need to have the opportunity to earn income beyond the current limitations. This law
appears to be in direct conflict with the independent living program for foster children,
which was designed to assist children in foster care aged 16-21 in becoming self-
sufficient. Achieving the goal of self-sufficiency must include the opportunity for youth
to earn income that will prepare them for survival in an independent living situation.
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Request:
The City requests that the General Assembly adopt legislation to allow foster children
between the ages of 19-21 to be exempt from the income limitation, thus allowing them
to remain eligible for Medicaid. This would give older foster children the opportunity to
earn the income necessary to achieve the goal of self-sufficiency.
5. WEAPONS IN PUBLIC BUILDINGS WHERE HEALTH SERVICES ARE PROVIDED
Dr. Terry Jenkins
Department Director
Department of Human Services
Background:
The General Assembly passed legislation in 2003 (codified at Virginia Code g 15.2-915)
which prevents localities from prohibiting or restricting the carrying of weapons into City
buildings. As a result, the City may no longer prohibit people from bringing firearms
into facilities run by Mental Health, Mental Retardation and Substance Abuse Services
and Social Services.
Request:
The City requests that the General Assembly is requested to amend the Code of Virginia
to authorize localities to prohibit firearms, pellet guns, air guns, or other weapons on the
premises of facilities operated by Mental Health, Mental Retardation and Substance
Abuse Services and Social Services, except when in the possession of licensed security
personnel or law enforcement officers.
6. ACHIEVING REVENUE NEUTRALITY FOR LOCAL TELECOMMUNICATION TAXES
James K. Spore
City Manager
City of VirKinia Beach
Background:
Telecommunication companies have been lobbying the General Assembly for several
years to replace local taxing structures for telecommunications with a uniform tax. In the
past, telecommunication services were provided by very few companies. Deregulation
and technological advancements ushered in new opportunities for telecommunications
companies. In Virginia Beach, for example, there are more than thirty of these companies
compared to only 2 ten years ago. Each local government in Virginia imposed its own
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unique telecommunication taxing structure, and the telecommunications companies
believed this myriad of tax structures represented a burden to this growing industry.
From the perspective of local governments, the existing taxing structure was not suitable
for capturing the evolution in deregulation and technology either. For example, Vonage's
voice-over-internet-protocol (VOIP), was not subject to the existing telecommunications
tax, nor was satellite TV. Both of these were siphoning business from traditional
telecommunication/cable companies, and, subsequently, tax revenue from localities.
Further, it appeared that more people, particularly those who are young and single, were
canceling their land-line service and using only their mobile service. This is not a case in
which the City benefits from an extra cell phone tax; these residents already owned a cell
phone. As a result of these two forces, the telecommunications portion of our Utility tax
has declined by an average of 3.4% for four consecutive years. Cable revenues and cell
phone revenues were still experiencing increases while E 911, which is primarily tied to
land lines, was also decreasing.
Collectively, these forces brought about legislative action. In the 2006 General Assembly
session, legislation was enacted (HB 568) that replaced local telecommunication taxes
with a statewide Communication Sales and Use Tax of 5 percent, effective January 1,
2007. The legislation eliminated local taxes on telephone services, wireless telephone
services, and cable franchise fees!. The Communication Sales and Use Tax of 5 percent
is now applied to these services as well as satellite TV and radio, long distance charges,
and Internet telephone services. In addition, the legislation replaces the local E-911 fee
with a state-wide fee of$0.75 per telephone line.
Since January 1, 2007, the 5 percent Communication Sales and Use Tax and the E-911
fee have been remitted to the Virginia Department of Taxation. The Department of
Taxation then distributes funds to localities based on the locality's percentage of total FY
2006 state-wide collections of old communication taxes2. The redistribution of these
taxes was intended to be revenue neutral to localities. The hope was that revenue from
taxes on new sources such as satellite TV and radio will offset the reduced tax rate on
current sources, on a state-wide basis.
Unfortunately, through the first four months of the new taxing structure, the City's
receipts are down $1.264 million from revenue neutrality (assuming no growth from FY
'05-'06 to FY '06-'07). Although state audits may uncover underpayments from
particularly the first month of this tax, the past three payments are consistently under the
level of revenue neutrality by 1 % to 8%. The estimated annualized shortfall on the
stabilized revenue is $1.677 million.
1 This legislation also replaced local cable franchise fee agreements but allows existing agreements to continue until
their expiration dates; however, these agreements cannot be renewed. (Virginia Beach's agreement with Cox is in
place through May 23, 2016.)
2 A portion will be used to cover administrative costs, and another portion for the Virginia Relay Center costs to help
the hearing impaired. The telecommunications taxes and fees collected statewide from local governments for the July
1, 2005 through July 30, 2006 totaled $451.6 million, of which Virginia Beach's share comprised $28.2 million, or
6.25%, In the future, Virginia Beach will receive 6.25% of the total to be distributed
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Our preliminary analysis is that revenue neutrality is being roughly achieved for
residential telecommunication taxes, but not on the commercial side, where our local rate
was reduced from 20% (with a cap) to 5% (with no cap). Also, the state's E-9ll rate of
only $.75 is substantially below the City's previous rate of$2.60.
Request:
The legislation (HB 568) was supported by localities because it was portrayed as revenue
neutral. Therefore, the City urges the General Assembly to modify the tax structure to
achieve the promised revenue neutrality.
7. DEFINITION OF "FIREARMS"
Chief A.M. Jacocks
Police Department
Background:
Arrests and successful prosecution of cases involving firearms and similar weapons are
being seriously hampered by the various definitions of what constitutes a "firearm" under
the different code sections.
Virginia Code 918.2-282 (Brandishing) incorporates language for firearms, air or gas
operated weapons or objects similar in appearance. A "firearm" is defined as something
that expels a projectile due to the explosion of a combustible material.
Unfortunately, Virginia Code 9918.2-308 (Concealed Weapon), 18.2-308.1 (Possession
of a firearm on school grounds), and 18.2-308.2 (Possession of a firearm by a convicted
felon) only incorporate language defining a "firearm" and do not address weapons
powered by air or gas or items that look identical to a defined firearm.
There have been incidents where officers observe what they believe to be firearms only to
discover they are air or gas-operated weapons similar in appearance to "firearms."
Secondly, there have been numerous robberies committed by offenders carrying air or
gas-operated weapons or weapons of like appearance.
If an officer locates an air or gas weapon concealed on an offender, the officer is unable
to charge the offender with carrying a concealed weapon because the weapon does not
fall under the definition of a "firearm." Also, if an offender takes an air or gas weapon
onto school grounds, the offender cannot be charged with carrying a "firearm" on school
grounds, as the weapon does not meet the definition of a firearm.
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Request:
The City requests that Virginia Code g 18.2-308, S 18.2-308.1 and S 18.2-308.2 be
amended to incorporate language adding air or gas-operated weapons, or objects similar
in appearance, to the list of prohibited items.
8. REIMBURSEMENT FOR TRANSPORTATION DURING CIVIL ADMISSIONS
Chief A.M. Jacocks
Police Department
Background:
Law enforcement agencies incur expenses for fuel, vehicle maintenance, and employee
overtime due to the requirements of Virginia Code S 37.2-810, which requires law
enforcement agencies to transport persons subject to a magistrate's temporary detention
order ("TDO"). There is currently a mechanism in place to cover transportation costs of
these subjects under certain circumstances. Virginia Code S 37.2-829 provides: "In cases
where the sheriff of the jurisdiction of which the person is a resident is more than 100
miles from the nearest boundary of the jurisdiction in which the proceedings took place,
it shall be the responsibility of the sheriff of the latter jurisdiction to transport the person.
The cost of transportation of any person so applying or certified for admission pursuant
to 937.2-814 or 937.2-821 shall be paid by the Commonwealth from the same funds as
for care in jail." Law enforcement agencies other than sheriff s departments receive no
reimbursement from the Commonwealth for these transportation costs. The Virginia
Beach Police Department has been required to transport subjects from Virginia Beach to
as far away as Richmond, Fredericksburg, Petersburg, the Eastern Shore, and Staunton.
Request:
The City requests that all transportation costs incurred by law enforcement agencies
during the TDO process under Virginia Code S 37.2 -810 be reimbursed to cover the
costs of transportation.
9. SMOKE-FREE RESTAURANTS
City Council
City of Virginia Beach
Background:
City Council previously has requested that the General Assembly prohibit smoking in
restaurants statewide or to enact legislation to enable localities to prohibit smoking in
restaurants by local ordinance. In response to concerns raised during the last legislative
session, there recently have been proposals regarding the definition of "restaurants"
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versus "eating establishments." "Restaurants" are closed spaces serving food, and "food
establishments" would be food carts and other outdoor vendors where smoking would be
allowed. The City Council supports this legislation in the interest of public health, not
only for the citizens who might want to go to a smoke-free establishment, but also for
hospitality workers who are exposed to secondhand smoke.
Request:
The City requests that the General Assembly prohibit smoking in restaurants statewide or
enact legislation to enable localities to prohibit smoking in restaurants by local ordinance.
10. CREATION OF A STATE INSURANCE "WIND POOL"
City Council
City of Virginia Beach
Background:
Property owners in Virginia Beach, particularly at the oceanfront, are able to purchase
insurance for wind damage from the secondary insurance market at high rates and with
high deductibles. Many other coastal states have established a "wind pool" insurance
program that is available in specific geographic areas, and the resulting policies have
been provided at more reasonable rates and with more reasonable deductibles. Wind has
become, to most insurance carriers, the biggest risk in the Virginia Beach area. A $25
million piece of property could have a two percent wind deductible making the
deductible payment $500,000. This is in great contrast to the more reasonable $5,000
deductible that was available just a few years ago. The wind insurance premium
increases must also be considered as many Virginia Beach businesses are being forced to
pay 300 percent increases.
Request:
The General Assembly is requested to pass legislation to create a state insurance "wind
pool" so that wind damage insurance can be provided at a more reasonable cost and with
lower deductibles.
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CITY OF VIRGINIA BEACH
2008 FUNDING ITEMS
1. BRAe FUNDING
James K. Spore
City Manager
City of Virginia Beach
Background:
The City of Virginia Beach and the Commonwealth of Virginia have been partnering to
address the concerns raised by the Base Realignment and Closure Commission (BRAe)
in 2005. This partnership has included cost-sharing of a $15 million purchase of a
property in the flight path for NAS Oceana in 2005. Subsequent to that the City
established a policy of spending $7.5 million per year in perpetuity to comply with the
BRAC Order. The expectation is that the Commonwealth will provide a matching
amount of funds to buy land and reduce density in the APZ and Clear Zone around NAS
Oceana and also in the interfacility traffic area between Oceana and Fentress. There are
also some overhead costs involved in marketing/managing the properties purchased with
these funds. In the current biennium the City has been successful in receiving a grant for
$7.5 million per year from the Virginia National Defense Industrial Authority through its
Military Strategic Response Fund Appropriations. The General Assembly has
appropriated substantial funds to this organization which is used to address BRAC issues.
The City plans to continue its policy of spending $7.5 million per year and requests that
the General Assembly provide a matching amount.
Request:
Request that the General Assembly provide funds either directly to the City of Virginia
Beach for the BRAC Compliance Plan in the amount of $7.5 million per year over the
biennium or to direct that those funds flow through the Military Strategic Response Fund
of the Virginia National Defense Industrial Authority. Providing these funds will send a
strong message to the U.S. Navy that the Commonwealth and City of Virginia Beach are
serious about preserving NAS Oceana. The City would also wish to have the General
Assembly direct NVIDA to allow the funds to be used in the Interfacility Traffic Area.
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2. NEED FOR ADDITIONAL GROUP-HOME BEDS IN THE LOCALITY FOR YOUTH
NEEDING OUT-OF-HoME PLACEMENT
Dr. Terry Jenkins
Department Director
Department of Human Services
Background:
Efforts have been under way for the last several years to develop a 12-bed Group Home
adjacent to the Juvenile Detention Center for teens needing out of home placement. This
site has been approved previously and a conditional use permit was issued, however,
funding for construction remains a need. The proposed facility would become a city-
owned building, to be operated by the Department of Human Services directly or via
contract with an approved provider, setting up a fee structure with the Comprehensive
Services Act to cover the operational costs using child-specific billing for services. The
adolescents served would be CSA-mandated older adolescents in foster care, and there
would be some capacity to accept court-involved youth utilizing Juvenile Court Services
and other funding sources for non-mandated youth. HB 577 now requires CSA to justify
out-of-jurisdiction placements. In FY 2005, Virginia Beach youth were served in thirteen
(13) Group Homes outside the city limits at a cost of $1,036,542. Development of this
site would better enable us to serve youth within the city limits. We would also build in
mental health services provided by Human Services as needed. Funding was requested in
the amount of $1,000,000 several years ago for this project. Due to rising construction
costs, this estimate has nearly doubled.
Request:
The General Assembly is requested to approve an appropriation of $1.9 million dollars
for the construction of a 12-bed facility to be used as a group home for CSA-mandated
and non-mandated youth needing out-of-home placement. Operational costs would be
paid with CSA and Juvenile Court Services funds and other fee revenue.
3. CSA ADMINISTRATIVE ALLOCATION
Dr. Terry Jenkins
Department Director
Department of Human Services
Background:
The funding formula to carry out the provisions of the Comprehensive Services Act
defines the formula for local administrative costs based upon pool allocations from 1997.
The maximum allocation any locality can receive for administrative costs is $50,000.
This amount has not increased in the past eight years, despite continuing increases in the
oversight responsibilities of CSA. FY 06 expenditures for CSA in Virginia Beach were
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$8,541,406, which required a supplemental request of additional state and local dollars.
For FY 07, the CSA allocation is $11,748,425. Covering additional administrative costs
on top of the local share of any supplemental request for child-specific services is an
undue hardship.
Request:
The General Assembly is requested to amend Title 2.2, Chapter 52 of the Code of
Virginia to eliminate the maximum administrative allocation of $50,000 in order to
improve the ability of localities to meet the administrative requirements of the CSA and
to permit a maximum amount equal to 2% of the allocation in the amount of $234,968, to
be used for administrative costs.
4. SUPPORT FOR ADDITIONAL STATE GENERAL FUND DOLLARS FOR CSB
PROGRAMS
Dr. Terry Jenkins
Department Director
Department of Human Services
Background:
There continues to be substantial need in the community for mental health, mental
retardation and substance abuse services, as evidenced by growing waiting lists for
community-based care. There also continues to be substantial needs in child-care,
housing, employment, health care, and transportation for low-income and disabled
families.
Request:
The City of Virginia Beach is requesting that the General Assembly fully fund the mental
health, mental retardation, and substance abuse system to meet the needs of children and
adults on waiting lists for services. Additionally, the City requests that funds be made
available to meet the needs of low- income families to include child care, affordable
housing, employment, health care, and transportation.
5. FUNDING FOR PUBLIC HEALTH SERVICES
Venita Newby-Owens, M.D., M.P.H.
Department Director
Department of Health
Background:
Costs to provide much needed services have steadily increased in Virginia Beach for
public health. These include not only the traditional services to indigents, but also
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services relating to vector control, West Nile Virus, and weapons of mass destruction.
The dollars provided by the Commonwealth have become more inadequate over the
years, and the disparity between Virginia Beach per capita funding for public health care
is woefully inadequate compared to other cities. In order to improve child health and
school readiness and to prevent child abuse and neglect, equalized funding is requested.
Request:
The General Assembly is requested to fully fund the Virginia Beach Public Health
Department and equalize funding for Virginia Beach on a per capita basis to match
Norfolk and Portsmouth.
6. VIRGINIA BEACH LIFELONG LEARNING CENTER (JOINT USE LIBRARY: A
PARTNERSHIP BETWEEN THE CITY OF VIRGINIA BEACH AND TIDEWATER
COMMUNITY COLLEGE- VIRGINIA BEACH CAMPUS)
Marcy Sims
Department Director
Department of Public Libraries
Background:
Planning for the Tidewater Community College (TCC)/City Joint Use Library began in
2001 when it was realized that the City of Virginia Beach was planning the construction
of a branch library directly across Rosemont Road from the site of TCC's proposed
Learning Resource Center. City and TCC staff researched other collaborative joint use
library projects throughout the country, identified the factors for success of those projects
and engaged the consulting services of architects and planners of perhaps the most
successful of joint library projects, San Jose State University and City of San Jose Joint
Use Library. More than 60 representatives from TCC, Old Dominion University,
Norfolk State University, City of Virginia Beach, Virginia Beach City Public Schools and
the community met in facilitated meetings over the course of a year, culminating in the
publication of a report titled Virginia Beach Lifelong Learning Center: Joint Use Library
Feasibility Analysis, which is available for review.
The vision for this facility is not just an academic library nor a public library, but rather a
community lifelong learning center open to all: students, faculty, preschoolers and their
parents, teens, seniors, and self-directed learners of all ages. TCC benefits by broader
exposure of the opportunity for classes and degree programs to the thousands of people
who use the public library and who may feel that higher education is beyond their means.
Citizens benefit by experiencing a library with greater depth and breadth of collections,
services, technology resources and longer hours of service. The Commonwealth would
benefit by establishing an efficient model of library collaboration that could be replicated
in other communities.
15
Request:
The General Assembly is requested to include funding of $46 million in the budget for
the 2008-2010 biennium for Tidewater Community College's share of the Joint Use
Library. The City of Virginia Beach has approved the City's share of the capital costs,
which is approximately $10 million.
7. PLEASANT HALL PURCHASE
Lynn Clements
Department Director
Museums
Background:
Pleasant Hall is a circa 1769 historic building originally the residence of local merchant
George Logan. It is located on Princess Anne Road one block west of the Witchduck
Road/Kempsville Road intersection. It was restored in the 1990s, a project that included
construction of a modem addition containing a large assembly space, rest rooms, etc.
The building is the most visible and recognizable of the two surviving colonial era
buildings in what was the Kempe's Landing settlement. It is listed on the National
Register of Historic Places (1973) and is most famous for having served briefly as the
headquarters for Virginia Colonial Governor Lord Dunmore in 1775.
The Princess Anne/Witchduck intersection re-alignment road project is moving toward
construction in 2009/2010. It will move heavily traveled Princess Anne Road from in
front of Pleasant Hall to behind the Episcopal Church, which is currently across Princess
Anne Road from Pleasant Hall. A new land use plan - the Historic Kempsville Master
Plan - for the area around the intersection is being promoted by the Departments of
Planning and Economic Development. Pleasant Hall is the historical cornerstone of this
proposed mixed-use redevelopment.
Request:
The City of Virginia Beach would like to purchase Pleasant Hall and the cost is $1
million. The City would match the Commonwealth's commitment of $500,000 in order
to purchase the house and property. This commitment would make Pleasant Hall the
centerpiece of the Historic Kempsville Master Plan as a historic house museum and
visitor center. The building would be open for tours, special programs and events. It
would also be available for rental for social functions and receptions. Information
services would be provided to orient visitors to the new "historic" Kempsville area.
The City of Virginia Beach's Department of Museums would have a few years to
increase operations and develop exhibits. It would be anticipated that the formative
Virginia Beach Historic Sites Foundation would actively support the efforts to develop a
full-time operation. Initial operations in FY08 would be weekend tours and programs
16
plus the social rentals. A special event for the skirmish of Kempe's Landing could be
coordinated with the City of Chesapeake for the Battle of Great Bridge.
8. ADAM THOROUGH GOOD HOUSE, FERRY PLANT A TlON HOUSE AND L YNNHA VEN
HOUSE HISTORIC PRESERVATION FUNDING FOR ENVIRONMENTAL
MONITORING, WINDOWS, CHIMNEYS, PEST CONTROL, ROOFING AND PORCH
RESTORATION
Lynn Clements
Department Director
Museums
Background:
The Virginia Beach Historic Houses request $350,000 to support the preservation of the
Adam Thoroughgood House, the Ferry Plantation House and the Lynnhaven House. The
City of Virginia Beach acquired the Adam Thoroughgood House in 2003 from the City of
Norfolk/Chrysler Museum of Art. The City has executed an agreement (July 2007) with
APV A Preservation Virginia for transfer of the Lynnhaven House property within 180
days. The City has stepped forward to preserve these important historic sites, as their
previous owners have been unable to keep up with maintenance and preservation needs.
Both houses are important architectural treasures representing some of the earliest
surviving brick construction in Virginia. The Adam Thoroughgood House (circa 1720) is
a National Historic Landmark. It had a major restoration 50 years ago funded by the
Adam Thoroughgood House Foundation under the leadership of Henry Clay Hofheimer
II. The organization dissolved in the early 1960s after the property was deeded to
Norfolk.
Upon taking title, Virginia Beach funded emergency masonry repointing. Virginia Beach
was awarded a federal grant for a conservation assessment in 2004 and funded an
environmental monitoring program as the first step in addressing the report's
recommendations. Virginia Beach was also awarded a $150,000 2004 Save America's
Treasures Grant and provided the $150,000 match to make additional repairs and replace
the building's electrical and HV AC systems.
The Association for the Preservation of Virginia Antiquities restored the Lynnhaven
House (circa 1725) in the 1970s. It is listed on the National Register of Historic Places.
A federally funded conservation assessment was also done for the Lynnhaven House in
2004. Very little has been done to address the problems found during the assessment.
With the City's acquisition at the beginning of 2008, there are significant building
problems that need to be addressed.
The City acquired the Ferry Plantation House in 1996 at the behest of a citizen's
organization, "The Friends of Ferry Plantation House, Inc.," that planned to open the
house to the public for educational purposes. The "Friends" agreed to assume
17
responsibility for the restoration and maintenance of the circa 1830 building, which had
been boarded up for nearly a decade. The City provided a $68,550 capital improvement
appropriation from a related land sale to help get them started. A TEA-21 grant
($115,000) was received for stucco restoration and that project is in the design stage. The
"Friend's" efforts have proven to be worthwhile as the building was placed on the
National Register of Historic Places in 2005. They now open the building to the public
three days per week. With everything that has been accomplished, the volunteer
organization has not been able to keep up with all of the building's maintenance needs.
Request:
The Virginia Beach Historic Houses are asking the General Assembly for $350,000 to
make needed repairs and preservation improvements to the Adam Thoroughgood House,
Ferry Plantation House and the Lynnhaven House. The funding will provide for
implementation of a 12 month environmental monitoring program at the Lynnhaven
House, including an analysis/diagnostic report from a professional firm; replacement of
the cedar roof at Lynnhaven House; pest control for powder post beetles and other pests
at the Lynnhaven House and Ferry Plantation House; repairs and repointing, both exterior
and interior, of two massive chimneys at the Lynnhaven and Thoroughgood houses to
eliminate water infiltration during rain storms and falling brick and mortar;
repair/replacement to the lead came casement windows at these two houses and
installation of an ultraviolet filter system for the windows; and replacement of the
porches at Ferry Plantation. Implementation of these preservation repairs will assist the
City of Virginia Beach in catching up to the maintenance needs of these three significant
historic houses.
9. VIRGINIA AQUARIUM & MARINE SCIENCE CENTER - OCEAN IN MOTION
AQUARIUM TRUCK
Lynn Clements
Department Director
Museums
Background:
The Virginia Aquarium & Marine Science Center requests $900,000 to support the
Ocean in Motion program, which carries marine science education to schools and
festivals across the Commonwealth of Virginia. The current Ocean in Motion aquarium
truck has been bringing live marine animals and interactive programming to students
since 2001. In that time, we have reached 175,377 students from the Coastal Plain to far
reaches of Southwest Virginia. In 2006, Ocean in Motion visited 75 schools and 25,213
students. We traveled to more than 55 Virginia cities and covered 21,900 miles.
Investing in the Ocean in Motion program will ensure that students across the state have
the continued opportunity to see some of what makes the Chesapeake Bay and Atlantic
Ocean special places, even if they can't leave their school grounds. As we face new
environmental challenges such as global warming, schools must have resources such as
18
Ocean in Motion that enhance their science curriculum and inspire future scientists. We
provide an experience that no textbook can duplicate - sea stars and horseshoe crabs to
touch in the classroom and native fishes to watch aboard the truck. Without this type of
experiential learning, students do not build emotional connections to the bay and ocean,
only intellectual ones. According to Richard Louv in his book Last Child in the Woods:
Saving Children from Nature Deficit Disorder, individuals with emotional connections to
the environment are the ones most likely to develop a strong stewardship ethic. This
funding would allow Ocean in Motion to continue as a key educational component for
fostering stewardship of the Chesapeake Bay and the ocean in our young people.
This traveling aquarium allows aquarium educators to reach students who might not have
the opportunity to see the ocean or the Chesapeake Bay in person. This experience is
critical to developing "bay and ocean literacy" in our citizens. Ocean literacy is an
understanding of the ocean's influence on you and of your influence on the ocean. If you
are ocean-literate, you understand how the ocean functions, can communicate about the
ocean in a meaningful way, and are able to make informed decisions about the ocean and
its resources. This concept was developed in 2004 by 100 ocean science and education
professionals under the guidance of The National Geographic Society and NOAA. The
work addresses the state of ocean and aquatic science in the classroom: It is one of the
most "under-taught" subjects in K-12. The current reality is that citizens are not properly
educated to deal with issues related to the ocean and to the Chesapeake Bay, both of
which are important resources to the state.
Request:
The Virginia Aquarium is asking the General Assembly for $900,000 to purchase a
replacement Ocean in Motion vehicle outfitted with state-of-the art aquariums; upgrade
the vehicle's on site "docking" facilities; expand the holding systems for marine species
used in outreach; and support the staffing critical to the success of the program. Mileage
and salt water have begun to take their toll on the existing vehicle, which will need to be
replaced within two years. We will add a large "truck port" to protect the vehicle from
the elements and provide shelter for staff doing weekly maintenance. We plan to
increase the number of animals carried aboard the truck and will need additional holding
space for them in our upcoming Marine Animal Care facility. Finally, the success of the
program hinges on having qualified staff to coordinate with schools, conduct the
programs, handle routine vehicle maintenance, and provide care to the animals and life-
support systems.
19
10. SHERIFF'S WORK RELEASE FACILITY
Dave Hansen
Chief of Finance & Technology
City Manager's Office
Background:
Currently the City of Virginia Beach Sheriffs Work Release Facility is housed in a
leased space and the Sheriffs Workforce is housed in a landscape services building.
While the City in cooperation with the Commonwealth completed a major jail
expansion, there is still a need for additional bed space for prisoners. Co-locating both
the Sheriffs Work Release and Workforce programs in a new facility would allow these
programs the space necessary to operate at greater efficiencies.
Request:
The total estimated cost for design, site selection and construction of a facility is $6.7
million. Total project costs are subject to change pending the completion of the design
work and bid of the project. In 2005-2006, $600,000 of City funding was allocated for
preliminary design work and site selection of the facility. State funding for this project
was recently eliminated from the biennial budget and the City is requesting that in the
interest of public safety the General Assembly fund at least 25% of the total project. This
can be an authorization with funding to come as a reimbursement in FY 2010-11.
11. VIRGINIA BEACH CONVENTION CENTER FUNDING
James Ricketts
Department Director
Convention & Visitors Bureau
Background:
In 2005, the City of Virginia Beach opened the first phase of the new Virginia Beach
Convention Center. The new facility replaces the Pavilion Convention Center and was
designed by the architectural firm of Skidmore, Owings & Merrill (SaM).
The old center had a total of 188,000 square feet and lacked the amenities essential for
today's meeting planners. The new facility has a total of 516,000 square feet. This
includes 150,000 square feet of exhibition space, over 31,000 sq. ft. of ballroom space
and approximately 29,000 sq. ft. of meeting space. The total cost of the facility is
$202.571 million.
The new convention center is putting Virginia on the map as a viable convention state.
According to the Feasibility Study conducted by PricewaterhouseCoopers, the
Commonwealth will realize the following economic benefits: Incremental tax revenues
20
(in 2002 dollars) $1.2 to $2 million annually, between 900 and 1,500 additional jobs and
from $27.7 million to $44.8 million in incremental direct expenditures new to the
Commonwealth (not a transfer from other localities in the Commonwealth).
The economic impact for Hampton Roads is $50.5 million to $79.3 million in
incremental direct expenditures and between 1,700 and 2,700 new jobs. This is in
addition to the $2.1 million incremental tax revenue to the City of Virginia Beach, $97
million in sales and 1,900 additional jobs.
Request:
The General Assembly is requested to provide the remainder of $10 million, beyond what
has been appropriated. This is in keeping with the benefits to the Commonwealth based
on the amount of state tax revenue that will be generated from the new facility over a ten-
year period and the precedent set in funding the Richmond Convention Center.
12. SANDLER CENTER FOR THE PERFORMING ARTS
Emily Spruill
Cultural Arts Coordinator
Office of Cultural Affairs
Background:
The Sandler Center for the Performing Arts, a professional-quality, 1,300-seat, 84,000-
square-foot facility, will be the cultural centerpiece of Virginia Beach, located at the core
of the City's emerging Town Center. When it opens in November 2007, the center will
have enlarged spaces for performances and public and performer support, and it will give
the opportunity to expand the type and diversity of the performing arts programs in
Hampton Roads and the State of Virginia.
The $47-million facility, built under the General Assembly's PPEA process, will have a
full range of amenities, meeting the needs of today and tomorrow. As a tangible
demonstration of its commitment, the Virginia Beach City Council dedicated $35 million
of City funds to the project. Fundraising for capital and an endowment fund is being led
by the Virginia Beach Performing Arts Center Foundation, a non-profit organization
spearheaded by some of the City's top civic and business leaders.
The Sandler Center for the Performing Arts will have a dramatic impact on the State of
Virginia's tax base, generating over $2.2 million for the construction phase and $35,500
in annual state tax revenue. We ask the state to strengthen its commitment and
investment to the future of this cultural landmark and to the City as a whole, by
appropriating $300,000 for the operations of the Center.
21
The new center will become a defining asset for social development for the City and
Hampton Roads. It will become a focal point for social activities from education to the
arts and entertainment and will illustrate the region's dedication to furthering the cultural
life of its citizens.
Request:
The General Assembly is requested to appropriate $300,000 needed for the operations of
the Sandler Center for the Performing Arts.
22
CITY OF VIRGINIA BEACH
2008 COMMUNITY GROUP ITEMS
The following requests were made during the City's outreach process to the community
groups and came from civic leagues and associations as well as interested individuals
from the community.
1. ADEQUATE PUBLIC FACILITIES
Community Groups
City of Virginia Beach
Background:
Adequate public facilities statue is a perennial issue with the General Assembly.
Request:
Request that there be a requirement that rezoning not be granted until adequate public
facilities are in place to support existing and the new development or that these
infrastructures be provided for by the developer.
2. FUNDING FOR MASS TRANSIT
Community Groups
City of Virginia Beach
Background:
Currently 80% of the transportation trust fund goes to roads. 14.7% goes to mass transit
and the remaining percentage is split among ports and airports. Increasing the amount
from 14.7% to 19% that would go to mass-transit, while holding the other modes like rail
and ports and airports harmless, would cause a like decrease in the amount of money
available for road construction.
Request:
Request to increase the amount of money from the transportation trust fund to the mass
transit fund from 14.7% to 19%.
23
3. PUBLIC MEETING NOTICE & P ARTICIP A TION
Community Groups
City of Virginia Beach
Background:
Public meetings are being called and held at times and places that prevent those who
work and have other obligations during the day from attending, and likewise public
meetings have been held at the state and local level where public is invited but has no
avenue to address the board, commission or legislative body on the issue. There is a need
for more public input on the process.
Request:
Hold meetings requesting public input at times after 7:00 p.rn. on weeknights and at
central locations, i.e., those with public transportation access. Furthermore, a standard
format should be developed for the public's ability to comment.
4. MOTORIZED VEHICLE USE BY MINORS
Community Groups
City of Virginia Beach
Background:
Sales of motorized vehicles, including motorized skateboards and mini bikes, have
increased in recent years. Many of the persons targeted for purchasing these vehicles are
minors under 10 years of age. These underage drivers have no training or understanding
of traffic laws of consequences or operating these vehicles.
Request:
Remove loopholes from laws involving the use of motorized vehicles on streets and
roadways by minors. Restrict sales of such vehicles to licensed outlets that comply with
standards for vehicle sales. Such vehicles should only be sold to adults and disclosure
statements should be signed off by the adult acknowledging responsibility to restrict the
use of such vehicles to off-road environments. Parents should be held responsible.
24
5. ENFORCEMENT OF ENVIRONMENT AL LAWS
Community Groups
City of Virginia Beach
Background:
Violations of state and local laws on illegal dumping, littering and the Chesapeake Bay
Preservation Act are not being prosecuted and as a result perpetrators of such crimes are
faced with little to no sanctions for their crimes. Cost of remediation and cleanup of
communities are being warned by the municipality, and laws against littering and illegal
dumping and non-permitted destruction of wetlands are ignored.
Request:
Provide legislation and judicial support for enforcement and persecution of violators with
the goal being to correct behavior and have violators pay to remediate areas damaged and
destroyed by their acts.
6. EQUALIZATION OF PENAL TIES FOR DRIVING
Community Groups
City of Virginia Beach
Background:
This is related to the enhanced civil penalties portion of the HB 3202 passed by the
General Assembly.
Request:
Amend the law to provide equity to in-state versus out-of-state violators or eliminate the
penalties for Virginia residents. This is currently under court review.
7. PUBLIC DISCLOSURE OF HALF-WAY OR TRANSITIONAL HOUSING
Community Groups
City of Virginia Beach
Background:
Over the past few years there have been incidents involving opportunities for additional
housing communities. The public is not aware of contractor-operated facilities providing
services in the City which are located in their neighborhoods. These are primarily mental
retardation and mental health group homes that are being opened and operated without
knowledge of the neighborhood homeowner's association, etc.
25
Request:
Direct that state departments providing funding for programs and engaging in dialogue
including the public and all interested agencies to provide input and publicity on such
housing. Legislation should include all agencies and non-profits that provide services
under contracts whether federal, state or local law enforcement, mental health and mental
retardation departments.
8. BAYS IDE RECREATION CENTER
Community Groups
City of Virginia Beach
Background:
There is a request for the City to lease the former Farmer Jack Grocery in the Bayside
area and to provide an interim Community Recreation Center until a permanent Bayside
Recreation Center can be constructed.
Request:
Members of the House Appropriations Committee representing Norfolk and Virginia
Beach have suggested that the City could request reimbursement for the expenses to
convert the former grocery into an interim recreation center.
9. WETLANDS BOARD
Community Groups
City of Virginia Beach
Background:
There is lack of funding from the Virginia Institute of Marine Science for them to provide
technical support to the Wetlands Board across the state.
Request:
Provide more funding to them so that they can provide the required technical support to
the Wetlands Boards and other local agencies.
26
- 29-
Item V-J.3.
RESOLUTION/ORDINANCES
ITEM #56930
Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED:
Ordinance to GRANT a FRANCHISE to ENTERTAINMENT, INC. for
the use of City property at the Oceanfront and 15th Street re the
operation of the Virginia Beach Fishing Pier.
Voting:
10-0 (By Consent)
Council Members Voting Aye:
William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M
Henley, Vice Mayor, Louis R. Jones, Reba S. McClanan, Mayor Meyera E.
Oberndorf, John E. Uhrin, Ron A. Villanueva and James L. Wood
Council Members Voting Nay:
None
Council Members Abstaining:
Rosemary Wilson
Council Members Absent:
None
Council Lady Wilson ABSTAINED, pursuant to Section 2.2-3115 (E), Code of Virginia. Entertainment,
Inc. is a client of Goodman and Company, an accountingfirm. Her husband is a principal in the firm and
personally provides accounting services to Entertainment, Inc. Council Lady Wilson's correspondence of
October 9, 2007, is hereby made a part of the proceedings.
October 9, 2007
City c>f Virgi:rl..ia Beach
ROSEMARY WILSON
COUNCIL LADY - AT-LARGE
PHONE: (757) 422-0733
FAX: (757) 426-5669
In Reply Refer to 0034435
October 9, 2007
Mrs. Ruth Hodges Fraser, MMC
City Clerk
Municipal Center
Virginia Beach, Virginia 23456
Re: Abstention Pursuant to Section 2.2-3115(E), Code of Virginia
Dear Mrs. Fraser:
Pursuant to the Virginia Conflict ofInterests Act, Section 2.2-3115(E), Code of Virginia, I
make the following declaration:
1. I am executing this written disclosure regarding City Council's discussion and vote
on an ordinance to grant a franchise to Entertainment, Inc. to operate the Virginia
Beach Fishing Pier at 15th Street.
2. Entertainment, Inc. is a client of Goodman and Company, an accounting firm. My
husband is a principal in the firm.
3. My husband personally provides accounting services to Entertainment, Inc.
3. I wish to disclose this interest and abstain from City Council's consideration of this
matter.
Accordingly, I respectfully request that you record this declaration in the official records of
City Council.
1304 WREN PLACE, VIRGINIA BEACH, VA 23451
Mrs. Ruth Hodges Fraser
-2-
October 9, 2007
Re: Abstention Pursuant to Section 2.2-3115(E), Code of Virginia
Thank you for your assistance in this matter.
Sincerely,
) "' / .
! .I . /;; /(/ ;/_
/'(iJ-UW-C'C L{ ,,-, CL~vC/
Rosemary A. Wilson
Councilmember
RA W IRRI
1 AN ORDINANCE TO GRANT A FRANCHISE TO
2 ENTERTAINMENT, INC. FOR THE USE OF CITY
3 PROPERTY AT THE OCEANFRONT AND 15TH
4 STREET FOR THE OPERATION OF THE VIRGINIA
5 BEACH FISHING PIER
6
7
8 WHEREAS, on May 11, 1962, the City Council originally granted a twenty-
9 year franchise to Virginia Beach Pier and Amusement Company ("VBPAC") at the
1 0 oceanfront and 15th Street for the construction and operation of a fishing and
11 amusement pier (the "Virginia Beach Fishing Pier");
12
13 WHEREAS, since the expiration of the original twenty-year franchise,
14 additional five-year franchises and one three-year franchise have been granted to the
15 VBPAC's successor, Entertainment, Inc.;
16
17 WHEREAS, the current franchise has expired and Entertainment, Inc. has
18 expressed a desire to continue to operate the pier and its related facilities;
19
20 WHEREAS, City staff has recommended to the City Council that a
21 franchise be awarded to Entertainment, Inc. for a two-year period; and
22
23 WHEREAS, based on the staff's recommendation and the pier's long-time
24 existence, the City Council finds that granting a two-year franchise for the operation of
25 the Virginia Beach Fishing Pier will promote the public interest and serve to enhance the
26 festive atmosphere at the oceanfront.
27
28 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY
29 OF VIRGINIA BEACH, VIRGINIA:
30
31 1. That a franchise is hereby granted to Entertainment, Inc. to operate
32 the Virginia Beach Fishing Pier at its existing location from October 10, 2007 until
33 October 31,2009 in accordance with all terms and conditions thereof.
34
35 2. That the City Manager, or his designee, is hereby authorized to
36 execute the franchise agreement with Entertainment, Inc. in accordance with the
37 Summary of Terms attached hereto.
38
1
39 Adopted by the Council of the City of Virginia Beach, Virginia, on this
40 _9thfl.ayof Or.rohpr ,2007.
CA 10330
V:lapplicationslcitylawprodlcycom32lWpdocslD026lP002100040994. DOC
R-1
October 2, 2007
APPROVED AS TO LEGAL
SUFFICIENC~. .
491)
City Attorney
2
Proposed Short-Term Franchise
For Virginia Beach Fishing Pier
SUMMARY OF TERMS
Grantor:
City of Virginia Beach
Grantee:
Entertainment, Inc.
Franchise
Property:
See Exhibit A property designated as "Pier Property"
Term:
October 10, 2007 through October 31,2009.
Franchise Fee:
Grantee shall pay to Grantor $14,000 annually, payable on a
quarterly basis
Responsihilities of Grantee:
. shall keep Pier and Pier Property in good condition and repair.
. shall provide commercial liability coverage including product liability
coverage in the amount of not less than $1,000,000 (CSL).
. shall indemnify and hold harmless the Grantor for all claims, damages or
losses resulting from Grantee's operation, occupancy and use of the Pier
and Pier Property or the conduct of its operation, or resulting from the
negligence or intentional acts or omissions of the Grantee.
Permitted Uses:
. rental and sale of bait and tackle for fishing.
. one or more restaurants with a maximum area of 4,600 square feet each.
. retail stores engaged in the sale of tourist-related merchandise, goods
and/or services. However, the sale oftime shares shall be permitted only
from a specified kiosk on the Pier.
Rights and Responsihilities of Grantor:
. shall have the right to inspect the Pier and the Pier Property at all
reasonable times with or without notice to the Grantee.
. shall have the right to cancel and terminate the franchise on written notice
to the Grantee upon failure of the Grantee to cure a default or a breach of
the terms and conditions of the franchise.
. shall have the right, with no compensation to the Grantee, to photograph
the Pier, including the interior and exterior thereof, any persons on and
about the Pier and the name ofthe Grantee's establishments, and to use
any such photographs in any of the Grantor's publicity or advertising.
Special Conditions:
. from November 1 through January 6 each year, the Grantor shall have the
right to place on the Pier electric lights, electrical wiring, temporary
junctions or fuse boxes and such other equipment needed by Grantor in
connection with a holiday light display on the Virginia Beach oceanfront
boardwalk of the type currently known as "Holiday Lights at the Beach".
. Franchise is assignable upon written consent ofthe City. The City may
consent or decline to consent to any such assignment.
V :\applications\citylawprod\cycom32\ Wpdocs\D026\P002\00041 006.DOC
Exhibit A
The pier property, generally known as the "15th Street Pier", extending from the
Boardwalk over the sandy beach and into the Atlantic Ocean generally east of
15th Street in the City of Virginia Beach, more particularly described as follows:
PIER PROPERTY
All that certain strip, tract or parcel of land lying in the City of
Virginia Beach, Virginia, lying east of the Entertainment, Inc.
Tract (as defined below), being bounded on the west by the
Entertainment, Inc. Tract, on the east by the 10w water mark of the
Atlantic Ocean, on the north by an extension into the Atlantic
Ocean of the northern line of the Entertainment, Inc. Tract, and on
the south by the extension into the Atlantic Ocean of the southern
line of the Entertainment, Inc. Tract, together with all ways, water
courses, riparian rights, privileges and appurtenances to the same
belonging.
ENTERTAINMENT INC. TRACT
All that certain tract, piece or parcel of land, together with the all
buildings, appurtenances and riparian rights thereto belonging,
including all piers, wharves and structures thereon and extending
eastwardly therefrom, located in the City of Virginia Beach,
Virginia, and described as follows:
Beginning at a point in the eastern line of Atlantic Avenue 92 feet
and 6 inches north of the intersection of the northern line of 14th
Street with the eastern line of Atlantic Avenue, and running thence
northwardly along the eastern line of Atlantic Avenue 289 feet and
6 inches to a point in the eastern line of Atlantic Avenue; thence
eastwardly and parallel with 14th Street 150 feet to a point; thence
southwardly parallel with Atlantic Avenue 289 feet and 6 inches to
a point; thence westwardly parallel with 14th Street, 150 feet to the
point of beginning; it being a portion of Block 1 as shown on the
plat of property of Norfolk and Southern Railroad dated April 2,
1914, and recorded in the aforesaid Clerk's Office in Map Book 6
at page 320.
- 30 -
Item V-J.4.
RESOLUTION/ORDINANCES
ITEM #56931
Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED:
Ordinance to AUTHORIZE the Commonwealth's Attorney to ACCEPT
additional positions from the State Compensation Board;
APPROPRIATE $327,330 in additional State revenue; and, TRANSFER
$145,212from the General Fund Reserve for Contingencies to their FY
2007-8 Operating Budget.
Voting:
11-0 (By Consent)
Council Members Voting Aye:
William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M
Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E.
Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James
L. Wood
Council Members Voting Nay:
None
Council Members Absent:
October 9, 2007
1 AN ORDINANCE TO ACCEPT EIGHT POSITIONS FROM
2 THE STATE COMPENSATION BOARD, APPROPRIATE
3 $327,330 IN ADDITIONAL STATE REVENUE, AND
4 TRANSFER $145,212 FROM THE GENERAL FUND
5 RESERVE FOR CONTINGENCIES TO THE FY 2007-08
6 OPERATING BUDGET OF THE COMMONWEALTH'S
7 ATTORNEY'S OFFICE
8
9 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH,
10 VIRGINIA:
11
12 1. That eight additional full-time positions, including five attorneys, two paralegals,
13 and an office assistant, are hereby accepted from the State Compensation
14 Boa~;
15
16 2. That $327,330 in additional revenue from the state is hereby accepted and
17 appropriated to the FY 2007-08 Operating Budget of the Commonwealth's
18 Attorney's Office to provide funding towards the salaries and fringe benefits of
19 the additional positions, with revenue from the state reflected accordingly; and
20
21 3. That $145,212 is hereby transferred from the General Fund Reserve for
22 Contingencies to the FY 2007-08 Operating Budget of the Commonwealth's
23 Attorney's Office to provide the required match for the salaries and fringe
24 beneftts.
25
26 Requires an affirmative vote from the majority of the members of City Council.
Adopted by the Council of the City of Virginia Beach, Virginia on the 9 day
of October 2007.
APPROVED AS TO CONTENT
APPROVED AS TO LEGAL SUFFICIENCY
?~
City Attorney's OffiCY-
oAJG.
CA 10513
R-3
October 1, 2007
- 31 -
None
Item V-K.
PLANNING ITEM #56932
1. PYONG TUCHO VARIANCE
2. CH&B ASSOCIATES, L.L.P. CONCEPTIONAL SITE PLAN
3. COLLEGE PARK, L.L.C. MODIFICATION OF PROFFERS
(Conditional Zoning
Approved: 1/23/2007)
4. ST. MICHAEL LUTHERAN CHURCH MODIFICATION OF CONDITIONS
(Approved: April 28, 2008)
5. VICTORIOUS LIVING CHURCH CONDITIONAL USE PERMIT
6. WILLIE DONALD MARTIN, JR. CONDITONAL USE PERMIT
7. RAPPAHANNOCK SPORTS, L.L.c. CONDITIONAL USE PERMIT
8.CINGULAR WIRELESS CONDITIONAL USE PERMIT
9. GREG SMITH CONDITIONAL USE PERMIT
10. MATHEWS GREEN ASSOCIATES, L.L.C.
CONDITIONAL ZONING
11. KOTARIDES DEVELOPERS
CONDITIONAL CHANGE OF ZONING
October 9, 2007
- 32 -
Item V-K..
PLANNING
ITEM #56933
Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council APPROVED IN ONE
MOTION Items 2, 3, 4, 5, 7 (DEFERRED), 8 (DEFERRED), 9 and I I of the Planning By Consent
Agenda.
Item K 7 (RAPPHANNOCK SPORTS, L.L.C.) was DEFERRED INDEFINITELY, BY CONSENT)
Ite4m K8 (CINGULAR WIRELESS) was DEFERRED, BY CONSENT, forty-five (45) days to
November 27,2007.)
Voting:
11-0 (By Consent)
Council Members Voting Aye:
William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M
Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E.
Oberndorf John E. Uhrin Ron A. Villanueva, Rosemary Wilson and James
L. Wood
Council Members Voting Nay:
None
Council Members Absent:
None
Council Lady Henley voted a VERBAL NAY on Item K.2. (CH&B ASSOCIATES, L.L.P)
Council Lady McClanan voted a VERBAL NAY on Item K.11 (KOTARIDES DEVELOPERS)
October 9, 2007
- 33 -
Item V-K.l.
PLANNING
ITEM #56934
The following registered in SUPPORT:
Attorney Les Watson, One Columbus Center, Suite 1100, Phone: 497-6633, represented the Chofamily
As he has for the last twenty-five (25) years. It is the intent of the applicant to subdivide the existing lot
into two lots and develop the new lot with a single-family dwelling. The applicant has submitted a revised
subdivision plat that reduces the size of the proposed house. Individual letters from ten (10) residents and
twenty-five (25) signatures of adjacent residents in SUPPORT were presented and are hereby made a
part of the record. Petition containing over 402 signatures in SUP PORT from citizens of Virginia Beach
was also presented and made part of the record.
Richard Bartlett, 5316 Brockie Street, Engineer, represented the applicant
Don Rhodes, former Council Member and Judge, 1251 North Inlynnview, Phone: 481-9192, resident of
the area since 1975, registered in SUPPORT.
Dee Rose, 1249 North Inlynnview Road, Phone: 321-5235,
Gregory Weate, 2601 Britannica Place, Phone; 412-2213
Mark M Kenney, 2604 Britannica Place, Phone: 481-6251,
Lewis Mitchell, 3500 Cedar Grove Circle, Phone: 340-4377
Glenda Abraham, 3666 Hill Breeze Road, Phone: 486-1934
Captain David Price, USN Retired, 2167 Lords Landing, Phone: 496-4014
The following registered in OPPOSITION:
Gary Tuthill, 1220 North Innlynview Road, Phone: 496-8628, presented letter and Petition of adjacent
residents in OPPOSITION. Said information is hereby made a part of the record.
Armand Beaudoin, 1205 North Inlynnview Road, Phone: 620-1283
John Kuklica, 1217 North Inlynnview Road, Phone: 621-5200
Upon motion by Councilman Diezel, seconded by Councilman Dyer, City Council APPROVED
Variance to ~ 4.4(b) of the Subdivision Ordinance that requires all newly created lots meet the
requirements of the City Zoning Ordinance (CZO) for PYONG TU CHO:
Appeal to Decisions of Administrative Officers in regard to certain
elements of the Subdivision Ordinance, Subdivision for Pyong Tu Cho.
Property is located at 1212 North Inlynnview Road (GPIN 1498459841).
DISTRICT 5 -LYNNHAVEN
October 9, 2007
- 34 -
Item V-K.l.
PLANNING ITEM #56934 (Continued)
Voting: 8-3
Council Members Voting Aye:
William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M
Henley, , Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin
and Ron A. Villanueva
Council Members Voting Nay:
Vice Mayor Louis R. Jones, Rosemary Wilson and James L. Wood
Council Members Absent:
None
October 9, 2007
- 35 -
Item V-K.2.
PLANNING
ITEM #56935
Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED the
application of CH&B ASSOCIATES, L.L.P. re concevtual Site Plan addressing the site and building
design elements consistent with the existing commercial designation at the Northeast corner of Princess
Anne Road and South Plaza Trail
Application of CH&B Associates, L.L.P. for approval of a conceptual
site plan addressing the site and building design elements consistent with
the existing commercial designation of property at the northeast corner
of Princess Anne Road and South Plaza Trail in accordance with
proffers previously approved by City Council on September 9, 2003.
(GPIN -1476612829). DISTRICT 2 - KEMPSVILLE
The following conditions shall be required:
1. The site shall be developed in substantial conformance with the concept plan entitled
"Brenneman Farm Retail, Master Plan, Option J", dated August 30, 2007, submitted to and
onfile with the Department of Planning.
2. The site shall be landscaped in substantial conformance with the concept plan entitled
"Brenneman Farm Retail, Conceptual Planting Plan, Option J", dated August 15, 2007,
submitted to and on file with the Department of Planning. The streetscape plantings and
features shall consist of the plantings described on such plan and as depicted on the
rendering entitled "Conceptual Perspective, October 12, 2006", by Hines Design, submitted
to and on file with the Department of Planning.
3. The architectural design elements, exterior material finishes, and exterior colors of all
buildings located on the site shall be substantially as shown on the renderings submitted to
and onfile with the Department of Planning.
4. The primary identification signs for the development shall be located at the points shown on
the plan described in Condition 1. Such signs shall be monument-style and shall be
substantially as depicted on the rendering entitled "Conceptual Perspective, October 12,
2006", by Hines Design, submitted to and on file with the Department of Planning. In no
case, however, shall signage for the site exceed the requirements of the City Zoning
Ordinance.
5. Identification signs for the individual businesses within the buildings shown on the plan
described in Condition 1 shall be located on the buildings substantially as shown on the
renderings submitted to and on file with the Department of Planning. There shall be no neon
signs or neon accents installed on any wall area of the building, on or within any windows
and / or doors, awnings, light poles or any other portion of the site.
This Ordinance shall be effective in accordance with Section 107 (j) of the Zoning Ordinance.
Adopted by the Council of the City of Virginia Beach, Virginia, on the Ninth of October Two Thousand
Seven
October 9, 2007
- 36 -
Item V-K.2.
PLANNING ITEM #56935 (Continued)
Voting: 10-1 (By Consent)
Council Members Voting Aye:
William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, 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:
Barbara M Henley
Council Members Absent:
None
October 9, 2007
- 37 -
Item V-K.3.
PLANNING
ITEM #56936
Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council MODIFIED conditions
upon application of COLLEGE PARK, L.L.C to cover the parking spaces with a "carport" and add a
maintenance structure at 6226 Providence Road (approved by City Council on January 23, 2007).
ORDINANCE UPON APPLICATION OF COLLEGE PARK, L.L.C.for a
MODIFICATION OF CONDITIONS on a request approved by City
Council on January 23, 2007
BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGNIA BEACH, VIRGINIA
Ordinance upon application of College Park, L.L.c. for a Modification
of Conditions on a request approved by City Council on January 23,
2007. Property is located at 6226 Providence Road (GPIN
1456335185). DISTRICT 1- CENTERVILLE.
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 Ninth of October Two Thousand
Seven
Voting:
11-0 (By Consent)
Council Members Voting Aye:
William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M
Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E.
Oberndorf John E. Uhrin Ron A. Villanueva, Rosemary Wilson and James
L. Wood
Council Members Voting Nay:
None
Council Members Absent:
None
October 9, 2007
CITY OF VIRGINIA BEACH
INTER-OFFICE CORRESPONDENCE
In Reply Refer To Our File No. OF-6842
FROM:
Leslie L. Lilley
B. K~YWilSO~
DATE: September 26, 2007
DEPT: City Attorney
TO:
DEPT: City Attorney
RE: Conditional Zoning Application; College Park, LLC
The above-referenced conditional zoning application is scheduled to be heard by the
City Council on October 9,2007. I have reviewed the subject proffer agreement, dated
June 29,2007 and have determined it to be legally sufficient and in proper legal form. A
copy of the agreement is attached.
Please feel free to call me if you have any questions or wish to discuss this matter
further.
BKW/als
Enclosure
cc: Kathleen Hassen
PREPARED BY:
II sYns. ROURDON.
ADrnN & liVY. P.c.
FIRST AMENDMENT TO PROFFERED COVENANTS, RESTRICTIONS AND
CONDmONS
COLLEGE PARK, L.L.C., a Virginia limited liability company
TO (PROFFERED COVENANTS, RESTRICTIONS AND CONDmONS)
CITY OF VIRGINIA BEACH
THIS AGREEMENT, made this 29th day of June, 2007, by and between COLLEGE
PARK, 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 Centerville District of the City of Virginia Beach, Virginia, containing a total of
approximately 4.00 acres as more particularly described in Exhibit "A" attached hereto
and incorporated herein by reference, which parcel is referred to herein as the "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 June 25, 2006
(hereinafter "2006 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: 1456-33-5185
1
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 following declaration of conditions and 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. Proffer number "1" in the 2006 Proffers is amended to read: When the
Property is developed, it shall be substantially in accordance with the Site Layout Plan
entitled "THE RENAISSANCE SENIOR APARTMENTS, 6226 Providence Road, GPIN
1456-33-5185", dated 03/19/07, prepared by Engineering Services, Inc., which has been
exhibited to the Virginia Beach City Council and is on file with the Virginia Beach
Department of Planning ("Site Plan").
2. When the Property is developed, the 44 parking spaces designated on the
PREPARED BY: Site Plan as "COVERED SP ACES- TYP" shall be improved and landscaped substantially as
I: svns. ROURDON. depicted and described on the exhibit entitled "RENAISSANCE SENIOR APARTMENTS
AlIrnN & LM. P.C
2
PREPARED BY:
I SillS. BOURDON.
AHrnN & lIVY. P.c.
WITH COVERED PARKING", dated June 28, 2007, which has been exhibited to the
Virginia Beach City Council and is on file with the Department of Planning.
3. All of the terms, conditions, covenants, servitudes and agreements set forth
in the 2006 Proffers recorded in the Clerk's Office of the Circuit Court of the City of
Virginia Beach, Virginia, as Instrument #20070125000118060, save and except, Proffer 1,
as specifically amended and modified herein, shall remain in force and effect, running with
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 A-36 Apartment 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
Property 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 with
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
3
PREPARED BY:
I_ Sms. ROURDON.
, ADrnN & IIVY. P.C
Beach, Virginia, to administer and enforce the foregoing conditions and restrictions,
including the authority (a) to order, in writing, that any noncompliance 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, smt, 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 Grantors 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 Grantors and the Grantee.
4
PREPARED BY:
ma SYk':tS. ROURDON.
m AHrnN & liVY. P.C
WITNESS the following signature and seal:
Grantor:
I,
College Park/; ....i.c., a Virginia limited liability
compan~ 1/. ,/
/. j;' I
I ;' /
/ / I
// /1/
By:/ ' / (SEAL)
~
STATE OF VIRGINIA
CITY OF VIRGINIA BEACH, to wit:
The foregoing instrument was acknowledged before me this 2nd day of July, 2007,
by Eric G. Olson, Member of College Park, L.L.C., Grantor.
/1--y,7ft ,/ t mcf!4M
Notary Public
My Commission Expires: August 31, 2010
5
PREPARED BY:
I, Sms. ROURDON.
. AHrnN & LM. P.c.
EXHIBIT "A"
ALL THAT certain lot, piece or parcel of land, lying, situate and being in the City of
Virginia Beach, Virginia, containing 4 acres, as shown on that certain plat (the "Plat")
entitled, "Subdivision of Property for COLEMAN FARMS, INC., Kempsville Borough -
Virginia Beach, Virginia Scale: 1" = 100' December, 1976", made by John E. Sirine and
Associates, Ltd., Surveyors & Engineers, Virginia Beach, Virginia; then Plat is intended to
be recorded contemporaneously herewith in the Clerk's Office of the Circuit Court of the
City of Virginia Beach, Virginia; said property being more particularly bounded and
described with reference to the Plat as follows:
To ascertain the point of beginning (the "Point of Beginning"), state at the southwest
intersection of (Old) Providence Road and Providence Road; thence N 790 36' 39" Walong
the southern line of (Old) Providence Road a distance of 166.28 feet to a point; thence
continuing along said southern line of (Old) Providence Road N 780 45' 31" W a distance of
336.88 feet to a point; thence continuing along said southern line of (Old) Providence
Road N 760 12' 24" W a distance of 183.93 feet to a point; thence continuing along said
southern line of (Old) Providence Road, along a curve to the right having a radius of 500
feet, an arc distance of 18.24 feet to the Point of Beginning; thence from the Point of
Beginning S 160 48' 55" E a distance of 652.39 feet to a point in the northern line of
Providence Road; thence along the northern line of Providence Road, along a curve to the
right having a radius of 931.42 feet, an arc distance of 378-40 feet to the property
designated as Banbury Lake Village Section 1 on the Plat; thence the following courses and
distances along said Banbury Lake Village Section 1: N 100 53' 30" W a distance of 80 feet
to a point, N 130 14' 48" E a distance of 147.05 feet to a point, N 030 55' 41" W a distance of
130.73 feet to a point, N 870 22' 49" E a distance of 41.44 feet to a point, N 030 53' 41" W a
distance of 377.15 feet to a point, N 250 29' 10" W a distance of 31.65 feet to a point, N 260
16' 59" E a distance of 65.34 feet to a point in said southern line of (Old) Providence Road;
thence continuing along said southern line of (Old) Providence Road S 630 43' 01" E a
distance of 36.93 feet to a point; thence continuing along said southern line of (Old)
Providence Road, along a curve to the left having a radius of 500 feet, an arc distance of
90.75 feet to the Point of Beginning.
GPIN: 1456-33-5185
ModitionstoProffers/CollegeParkj'TheRenaissance/Proffer
6
- 38 -
Item V-K.4..
PLANNING
ITEM #56937
Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council MODIFIED Conditions
upon application of ST. MICHAEL LUTHERAN CHURCH for a Modification of Conditions to enclose
the existing storage and picnic shelter at 2208 Princess Anne Road (approved by City Council on April
25, 1988).
ORDINANCE UPON APPLICATION OF ST. MICHAEL LUTHERAN
CHURCH FOR A MODIFICA TION OF CONDITIONS on a request
approved by City Council on April 25, 1988
BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGNIA BEACH, VIRGINIA
Ordinance upon application of St. Michael Lutheran Church for a
Modification of Conditions on a request approved by City Council on
April 25, 1988. Property is located at 2208 Princess Anne Road (GPIN
2404952881). DISTRICT 7 - PRINCESS ANNE
The following conditions shall be required:
1. All conditions attached to the Modifications of the Conditional Use Permit granted by the
City Council August 8, 2006 remain in affect.
2. The exterior of the proposed enclosed shelter shall be designed to be compatible with the
existing exterior materials on the existing building on the site.
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 Ninth of October Two Thousand
Seven
Voting:
11-0 (By Consent)
Council Members Voting Aye:
William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M
Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E.
Oberndorf John E. Uhrin Ron A. Villanueva, Rosemary Wilson and James
L. Wood
Council Members Voting Nay:
None
Council Members Absent:
None
October 9, 2007
- 39 -
Item V-K.5.
PLANNING
ITEM #56938
Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED an
Ordinance upon application of VICTORIOUS LIVING CHURCH for a Conditional Use Permit re a
church:
ORDINANCE UPON APPLICATION OF VICTORIOUS LIVING
CHURCH FOR A CONDITIONAL USE PERMIT FOR A CHURCH
R0100734241
BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGNIA BEACH, VIRGINIA
Ordinance upon Application of Victorious Living Church for a
Conditional Use Permit for a church on property located at 2180
McComas Way, Suite 113 (GPIN 2404977494). DISTRICT 7 -
PRINCESS ANNE.
The following conditions shall be required:
1. The applicant shall comply with all applicable City requirements for building codes,
includingfire safety and suppression, requiredfor a change of use from commercial to a
place of assembly prior to the issuance of an Occupancy Permit for this unit. This includes
obtaining a Fire Inspection, a Fire Code Permit, and a Certificate of Occupancy from the
Building Official's Office.
2. The number of congregants at any service shall not exceed the occupancy number for the unit
as established by the City's Fire Marshall.
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 Ninth of October Two Thousand
Seven
Voting:
11-0 (By Consent)
Council Members Voting Aye:
William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M
Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E.
Oberndorf, John E. Uhrin Ron A. Villanueva, Rosemary Wilson and James
L. Wood
Council Members Voting Nay:
None
Council Members Absent:
None
October 9, 2007
- 40-
Item V-K.6.
PLANNING
ITEM #56939
Joyce Keeling Martin, 3632 Pamlico Circle, Phone: 857-1184, represented the applicant, her son,
Willie Donald Martin, Jr.
Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council DEFERRED
INDEFINITELY an Ordinance upon application of WILLIE DONALD MARTIN, JR. for a
Conditional Use Permit re an auto repair garage:
City Council directed the City Manager to work with the applicant re relocation and/or property
exchange.
ORDINANCE UPON APPLICATION OF WILLIE DONALD MARTIN,
JR. FOR A CONDITIONAL USE PERMIT FOR AN AUTOMOBILE
REPAIR GARAGE
Ordinance upon application of Willie Donald Martin, Jr. for a
Conditional Use Permit for an automobile repair garage on property
located at 1128 Barrs Road (GPIN 1459700591). DISTRICT 4 -
BAYSIDE.
Voting: 9-0
Council Members Voting Aye:
William R. "Bill" DeSteph, Robert M Dyer, Barbara M Henley, Vice Mayor
Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E.
Uhrin Ron A. Villanueva and Rosemary Wilson
Council Members Voting Nay:
None
Council Members Abstaining:
James L. Wood
Council Members Absent:
Harry E. Diezel
Councilman Wood ABSTAINED, pursuant to Section 2.2-3115 (E), Code of Virginia. Willie Donald
Martin, Jr., currently operates his business on Connie Lane and Connie Way. He rents the space for his
business from Connie One, L.L.C and ifhis application is granted, he will terminate the rental agreement
with Connie One, L.L.C Councilman Wood is a member of Connie One, L.L.C, which is located at 208
Ash Avenue, Suite 101, and has a personal interest in the corporation. Councilman Wood's
correspondence of October 9, 2007, is hereby made a part of the proceedings.
October 9, 2007
City e>f Virgi:C1ia Beach
JAMES L. WOOD
COUNCILMAN - DISTRICT 5 - LYNNHAVEN
PHONE:
FAX:
(757) 340-8411
(757) 340-2082
In Reply Refer to 0034421
October 9, 2007
Mrs. Ruth Hodges Fraser, MMC
City Clerk
Municipal Center
Virginia Beach, Virginia 23456
Re: Abstention Pursuant to Section 2.2-3115(E), Code of Virginia
Dear Mrs. Fraser:
Pursuant to the Virginia Conflict ofInterests Act, Section 2.2-3115(E), Code of Virginia, I
make the following declaration:
I. I am executing this written disclosure regarding City Council's discussion and vote
on the application of Willie Donald Martin, Jr. for a Conditional Use Permit for an
automobile repair garage at 1128 Barrs Road.
2. Mr. Martin currently operates his business on Connie Lane and Connie Way. He
rents the space for his business from Connie One, L.L.C., and if his application is
granted, he will terminate the rental agreement with Connie One, L.L.C.
3. I am a member of Connie One, L.L.C., which is located at 208 Ash Ave Suite 101
23452, and I have a personal interest in the corporation.
3. I wish to disclose this interest and abstain from voting on this matter.
Accordingly, I respectfully request that you record this declaration in the official records of
City Council.
3778 PRINCE ANDREW LANE, VIRGINIA BEACH, VA 23452
Mrs. Ruth Hodges Fraser -2-
Re: Abstention Pursuant to Section 2.2-3115(E), Code of Virginia
Thank you for your assistance in this matter.
Sincerely,
JL W /RRI
October 9, 2007
- 41 -
Item V-K. 7.
PLANNING
ITEM #56940
Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council DEFERRED
INDEFINTELY an Ordinance upon application of RAPPAHANNOCK SPORTS, L.L.C. for a
Conditional Use Permit for an indoor recreation facility:
ORDINANCE UPON APPLICATION OF RAPPAHANNOCK SPORTS,
L.L.c. FOR A CONDITIONAL USE PERMIT FOR AN INDOOR
RECREATION FACILITY
Ordinance upon application of Rappahannock Sports, L.L. C. for a
Conditional Use Permit for an indoor recreation facility on property
located at the southeast intersection of Holland Road and Warwick Drive
(GPIN 1495086742). DISTRICT6-BEACH
Voting:
11-0 (By Consent)
Council Members Voting Aye:
William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M
Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E.
Oberndorf John E. Uhrin Ron A. Villanueva, Rosemary Wilson and James
L. Wood
Council Members Voting Nay:
None
Council Members Absent:
None
October 9, 2007
- 42-
Item V-K.8.
PLANNING
ITEM #56941
Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council DEFERRED 45 DA YS
until the City Council Session of November 27,2007, an Ordinance upon application ofCINGULAR
WIRELESS for a Conditional Use Permit re a communication tower, antennas and equipment building
at 4021 Charity Neck Road
ORDINANCE UPON APPLICATION OF CINGULAR WIRELESS FOR
A CONDITIONAL USE PERMIT FOR A COMMUNICATION TOWER
Ordinance upon application of Cingular Wireless for a Conditional Use
Permit for a communication tower on property located at 4021 Charity
Neck Road (GPIN 2411550252). AICUZ is Less Than 65 dB DNL.
DISTRICT 7 - PRINCESS ANNE.
Voting:
11-0 (By Consent)
Council Members Voting Aye:
William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M
Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E.
Oberndorf, John E. Uhrin Ron A. Villanueva, Rosemary Wilson and James
L. Wood
Council Members Voting Nay:
None
Council Members Absent:
None
October 9, 2007
- 43 -
Item V-K.9.
PLANNING
ITEM #56942
Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED an
Ordinance upon application of GREG SMITH for a Conditional Use Permit re a home occupation
(making and selling glass bead pendants in the garage) at 594 Van Buren Court.
ORDINANCE UPON APPLICATION OF GREG SMITH FOR A
CONDITIONAL USE PERMIT FOR A HOME OCCUPATION
(MAKING AND SELLING GLASS BEAD PENDANTS)
R0100734241
BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGNIA BEACH, VIRGINIA
Ordinance upon application of Greg Smith for a Conditional Use
Permit for a home occupation (making and selling glass bead
pendants) on property located at 594 Van Buren Court (GPIN
1486576552). DISTRICT 3 - ROSE HALL.
The following conditions shall be required
1. In accordance with Section 234 of the City Zoning Ordinance, not more than twenty (20)
percent of the floor area of the dwelling unit and accessory structure shall be used in
conjunction with the home occupation.
2. No signs advertising the business shall be permitted on the premises or installed on the lot or
buildings on the lot at any time.
3. There shall be no individuals employed by the applicant to assist with the home occupation
other than one family.
4. Sales to the general public of product or merchandise shall not be permitted on the property.
5. The home occupation shall not create noise, dust, vibration, smell, smoke, glare, electrical
interference, fire hazard or any other hazard or nuisance to any greater or more frequent
extent than would normally be expected in the neighborhood under normal circumstances
wherein no home occupation exists.
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 Ninth of October Two Thousand
Seven
October 9, 2007
- 44-
Item V-K.9.
PLANNING ITEM #56942 (Continued)
Voting: 11-0 (By Consent)
Council Members Voting Aye:
William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M
Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E.
Oberndorf John E. Uhrin Ron A. Villanueva, Rosemary Wilson and James
1. Wood
Council Members Voting Nay:
None
Council Members Absent:
None
October 9, 2007
- 45-
Item V-K.10.
PLANNING
ITEM #56943
Attorney R. J. Nutter, 222 Central Park Avenue, Phone: 682-7500, represented the applicant
Upon motion by Council Lady Henley, seconded by Councilman DeSteph, City Council ADOPTED an
Ordinance upon application of MATHEWS GREEN ASSOCIATES, L.L.e. for a Change of Zoning
District Classification from R-20 Residential District with a PD-H2 Overlay to P-1 Preservation District:
ORDINANCE UPON APPLICATION OF MATHEWS GREEN
ASSOCIATES, L.L.c. FOR A CHANGE OF ZONING DISTRICT
CLASSIFICATION FROM R-20 RESIDENTIAL DISTRICT WITH A PD-
H2 OVERLAY TOP-1 PRESERVATION DISTRICT Z01 0071286
BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGNIA BEACH, VIRGINIA
Ordinance upon application of Mathews Green Associates, L.L.c. for a
Change of Zoninf! District Classification from R-20 Residential District
with a PD-H2 Overlay to P-1 Preservation District on property located
at 2217 Mathews Green (GP IN 2404949948). DISTRICT 7 - PRINCESS
ANNE.
TYPE OF EMERGENCY ACCESS GATE, TO BE DETERMINED BY F1RE AND
PLANNING DEPARTMENTS, SHALL BE PROVIDED
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 Ninth of October Two Thousand
Seven
October 9, 2007
- 46-
Item V-K.IO.
PLANNING ITEM #56943 (Continued)
Voting: IO-O
Council Members Voting Aye:
William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M
Henley, 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 Abstaining:
Vice Mayor Louis R. Jones
Council Members Absent:
None
Vice Mayor Jones DISCLOSED and ABSTAINED pursuant to Conflict of Interests Act re Mathews
Green Associates, L.L.c. 's for a Conditional Change of Zoning application located at 2217 Matthews
Green; and, discontinuance, closure and abandonment of portions of Matthews Green east of Princess
Anne Road. Property owned by Holloman-Brown Funeral Home - Bayside Chapel, Inc. is located across
the street from property that is the subject of Mathews Green Associates, L.L.c. 's applications. Vice
Mayor Jones has an ownership interest in Holloman-Brown Funeral Home, Inc. The City Attorney has
advised Vice Mayor Jones he does not have a personal interest in this transaction and is s able to
participate in the discussion and vote fairly, objectively and in the public interest. Vice Mayor Jones's
letter of August 22, 2006, is hereby made a part of the record.
October 9, 2007
City e>f Virgi:r1ia. Bea.ch
LOUIS R. JONES
VICE MAYOR
PHONE:
FAX:
(757) 583-0177
(757) 588-4659
August 22, 2006
Mrs. Ruth Hodges Smith, MMC
City Clerk
Municipal Center
Virginia Beach, Virginia 23456
Dear Mrs. Smith:
Re: Disclosure of Interest in Property
I make the following declaration:
1. I am executing this written disclosure regarding Matthews Green Associates, L.L.c.' s
applications for (1) a change of zoning district classification on property located at
2217 Matthews Green (GPIN 2404949948); and (2) discontinuance, closure and
abandonment of portions of Matthews Green east of Princess Anne Road.
2. Property owned by Holloman-Brown Funeral Home-Bayside Chapel, Inc. ("Bayside
Chapel") is located across the street from property that is the subject of Matthews
Green Associates, LLC's applications. Bayside Chapel is a subsidiary of Holloman-
Brown Funeral Home, Inc. I have an ownership interest in Holloman-Brown Funeral
Home, Inc. that exceeds 3% of the corporation's total equity.
3. Planning Director Robert Scott has opined that it is not reasonably foreseeable that
Bayside Chapel would realize a direct or indirect benefit or detriment as a result of
this transaction, and that it would be speculative to conclude otherwise.
4. The City Attorney has reviewed the provisions of the State and Local Government
Conflict ofInterests Act (Va. Code 9 2.2-3000 et seq.) and has concluded that I do
not have a "personal interest in [this] transaction."
1008 WITCH POINT TRAIL, VIRGINIA BEACH, VA 23455-5645
Ruth Hodges Smith
2
August 22, 2006
5. Nevertheless, I wish to publicly disclose my interest ill the above-referenced
properties and businesses.
Accordingly, I respectfully request that you record this declaration in the official records of
City Council.
Thank you for your assistance in this matter.
Sincerely,
~Jf-
Louis R. J
Vice Mayo
LRJ/RRI
- 47-
Item V-K II.
PLANNING
ITEM #56944
Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council
ORDINANCE UPON APPLICATION OF KOTARIDES DEVELOPERS
FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM B-
2 COMMUNITY BUSINESS DISTRICT TO CONDITIONAL A-24
APARTMENT DISTRICT Z010071287
BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGNIA BEACH, VIRGINIA
Ordinance upon application of Kotarides Developers for a Chanfle of
Zoninfl District Classification from B-2 Community Business District to
Conditional A-24 Apartment District on property located at 920 South
Military Highway. (GPIN 1456230589). DISTRICT 1- CENTERVILLE.
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 Ninth of October Two Thousand
Seven
Voting:
10-1 (By Consent)
Council Members Voting Aye:
William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M
Henley, Vice Mayor Louis R. Jones, ,Mayor Meyera E. Oberndorf John E.
Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood
Council Members Voting Nay:
Reba S. McClanan
Council Members Absent:
None
October 9, 2007
CITY OF VIRGINIA BEACH
INTER-OFFICE CORRESPONDENCE
In Reply Refer To Our File No. DF-6731
DATE: September 26, 2007
TO:
FROM:
Leslie L Lilley .to.::\
B. Kay WilsonW
DEPT: City Attorney
DEPT: City Attorney
RE: Conditional Zoning Application; Kotarides Developers LLC
The above-referenced conditional zoning application is scheduled to be heard by the
City Council on October 9,2007. I have reviewed the subject proffer agreement, dated
August 28,2007 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.
B KW/a Is
Enclosure
cc: Kathleen Hassen
PING PING, LLC
and
KOTARIDES DEVELOPERS, LLC, a Virginia limited liability company
To
CITY OF VIRGINIA BEACH
a Municipal Corporation of the
~ommonwealth of Virginia
THIS PROFFER AGREEMENT ("Agreement") made this 28th day of August, 2007, by
and among PING PING. LLC and KOTARIDES DEVELOPERS. LLC. a Virginia limited
liability company (collectively, the "Grantor"); and THE CITY OF VIRGINIA BEACH. a
municipal corporation of the Commonwealth of Virginia (the "Grantee"), with an address of
2405 Courthouse Dr., Municipal Center, Virginia Beach, VA 23456.
RECITALS:
A. Kotarides Developers, LLC ("Kotarides") is the contract purchaser of a certain
parcel of property located in the City of Virginia Beach, herein known as Exhibit A (the
"Property"), less and except all that certain parcel of land leased by Goodrich and Associates to
Seaboard Citizens National Bank described in a Memorandum of Lease dated August 15, 1967,
and recorded in the Clerk's Office of the Circuit Court for the City of Virginia Beach in Deed
Book 1020 at page 49, which shall be severed from the Property pursuant to a subdivision plat
approved by the City of Virginia Beach as more particularly set forth herein.
PREPARED BY: ANN K. CRENSHAW, ATTORNEY AT LAW,
KAUFMAN & CANOLES. P.C.
GPIN NO. 1456-23-0589-000
B. Grantor has initiated an amendment to the Zoning Map of the City of Virginia
Beach by petition of Grantor addressed to Grantee to change the zoning classification of the
Property from B-2 to Conditional A-24 Apartments. The proposed amendment is made pursuant
to the terms of the City Zoning Ordinance of the City of Virginia Beach, adopted April 18, 1988,
as amended and in effect on the date of this Agreement (the "City Zoning Ordinance'').
C. Grantee's policy is to provide for the orderly development of land for various
purposes, including commercial purposes, through zoning and other land development
legislation.
D. Grantor acknowledges that in order to prevent incompatible land use, reasonable
conditions governing the use of the Property, in addition to the regulations generally applicable
to land zoned A-24 Apartments as specified in the City Zoning Ordinance, are required to
address the project proposed in Grantor's rezoning application.
E. Grantor has voluntarily proffered in writing, prior to the public hearing before
Grantee, as a part of the proposed amendment to the Zoning Map and in addition to the
regulations specified in the City Zoning Ordinance for the A-24 Apartment zoning district,
reasonable conditions outlined in this Agreement related to the development and operation of the
Property. These conditions will be adopted as a part of the amendment to the Zoning Map
relative to the Property, and have a reasonable relation to the use of the Property as rezoned A-24
Apartment and are needed as a result of the rezoning.
F. The conditions outlined in this Agreement have been proffered by Grantor and
allowed and accepted by Grantee as a part of the amendment to the City Zoning Ordinance 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
2
continue if the subsequent amendment is part of the comprehensive implementation of a new or
substantially revised zoning ordinance of Grantee.
NOW, TIIEREFORE, Grantor, its heirs, successors, assigns, grantees and other
successors in title or interest to the Property, voluntarily and without any requirement by or
exaction from Grantee or its governing body and without any element or compulsion or auid pro
quo for zoning, rezoning, site plan, building permit or subdivision approval, makes the following
declaration of conditions and restrictions governing the use and physical development and
operation of the Property, and covenants and agrees that this declaration and the further terms of
this Agreement shall constitute covenants running with the Property, which shall be binding
upon the Property, and upon all persons and entities claiming under or through the Grantor, its
heirs, successors and assigns, grantees and other successors in interest or title to the Property;
namely:
1. The Property shall be used for the purposes and uses permitted in the A-24
Apartment District. Grantor agrees to a density not to exceed 18.5 apartment units per acre for a
total number of apartments not to exceed 300 units. The maximum height of the buildings shall
not exceed forty-five (45) feet.
2. A subdivision plat approved by the City of Virginia Beach shall be duly recorded
to sever all that certain parcel of land leased by Goodrich and Associates to Seaboard Citizens
National Bank described in a Memorandum of Lease dated August 15, 1967, and recorded in the
Clerk's Office of the Circuit Court for the City of Virginia Beach in Deed Book 1020 at page 49
(the "Leasehold Parcel") from the Property. The subdivision plat shall comply with applicahle
City Ordinances, including but not limited to the minimum lot size requirements.
3
3. Grantor shall comply with reasonable comments offered by the City. Grantor
shall comply with all terms and conditions of all City Ordinances related to matters of Public
Works, Traffic Engineering, Public Safety, Public Utilities and Storm Water Management.
Grantor shall dedicate an additional right of way as more particularly set forth in the Site Plan.
An application for an administrative variance to the Chesapeake Bay Preservation Act to
encroach into the Variable Width Buffer has been submitted by the Grantor.
4. In order to provide for the coordinated development of the Property, the Property
shall be developed in substantial conformity with that certain plan entitled "SCHEMATIC SITE
PLAN, BELMONT AT PROVIDENCE" dated August 24, 2007, prepared by WPL (the "Site
Plan"), a copy of which is on file with the City of Virginia Beach, Department of Plamring, with
regard to layout, ingress and egress, and landscaping. Grantor shall comply with all terms and
conditions of all City Ordinances and Guidelines pertaining to landscape design. Category IV
landscaping and fencing, as more particularly described in the Site Plan, and the color
coordinated rendering exhibit prepared by Kotarides entitled "BELMONT AT PROVIDENCE
CROSS SECTION SHOWING CATEGORY 4 LANDSCAPING ADJACENT TO
BURLINGTON PLAZA" will be installed on all adjacent parcels zoned for business uses.
Foundation planting beds, as more particularly described in the Site Plan, shall be five (5) feet
from front to back. The landscaping shall substantially conform to the Site Plan and other
exhibits submitted to City Council and the Planning Department for the City of Virginia Beach.
5. The exterior of the typical apartment building shown upon the Site Plan shall be
substantially similar in appearance to the color coordinated rendering exhibits prepared by
Kotarides, said exhibit being the same exhibits as the color coordinated exhibit submitted to the
City Council and on file in the Planning Department of the City of Virginia Beach, Virginia and
4
being composed of the same building materials and elevations as reflected upon the said
elevation exhibit on file in the Planning Department of the City of Virginia Beach, Virginia (the
"BELMONT AT PROVIDENCE TYPICAL BUILDING ELEVATION"). The building
materials for the dwelling units will include brick veneer on the lower level, picket railings on
the balconies, and horizontal lapped siding.
6. Belmont at Providence shall include a Clubhouse with an exercise facility, a
kitchen, a swimming pool, central mail boxes and a business office. The Clubhouse shall be
developed with architectural features that are substantially similar in appearance to those
depicted on the color coordinated rendering exhibit prepared by Kotarides entitled "BELMONT
AT PROVIDENCE CLUBHOUSE". The footprint of the Clubhouse shall be substantially
similar in appearance to the Site Plan submitted to the City Council and on file in the Planning
Department of the City of Virginia Beach, Virginia and being composed of substantially similar
building materials and elevations as reflected upon the color coordinated rendering exhibit of the
Clubhouse which is on file in the Planning Department of the City of Virginia Beach, Virginia.
Building materials for the Clubhouse will be brick and siding materials.
7. The swimming pool shall include decorative water features, fencing, and a
pergola. The pool will be developed with architectural features that are substantially similar to
the color coordinated photograph of the swimming pool submitted to City Council and on file
with the Planning Department of the City of Virginia Beach and being comprised of substantially
similar building materials and elevations as reflected therein. Building materials for the pool
will be brick, masonry and concrete. The fencing surrounding the pool will be black anodized
aluminum.
5
8. Private recreational amenities shall include a Picnic Shelter, a Tot Lot and
gazebos for the residents of Belmont at Providence. The gazebos shall be developed with
architectural features that are substantially similar to the photograph of the gazebo submitted to
the City Council and on file with the Planning Department of the City of Virginia Beach and
being comprised of substantially similar building materials and elevations as reflected therein.
The Department of Parks and Recreation shall assist in reviewing the plans for the development
of recreational amenities and trails.
9. Pedestrian trails will be constructed by utilizing environmentally friendly
pervious materials to encoUrage the residents' interaction with the natural beauty of the site. The
trails shall he developed with features that are substantially similar in appearance to the color
coordinated rendering exhibit submitted to the City Council and on file with the Planning
Department of the City of Virginia Beach, Virginia (the "BELMONT AT PROVIDENCE VIEW
OF PEDESTRIAN TRAIL and ACTIVE OPEN SPACES") prepared by Kotarides. As a matter
of public safety, pedestrian trails shall be designed to maximize sight lines and surveillance
opportunities by users, while keeping with the natural appearance of the open space. Pedestrian
trail landscaping within eight (8) feet of the pathways will be kept low, less than three (3) feet,
and tree canopies shall be raised up to seven (7) feet. The Department of Parks and Recreation
shall assist in reviewing the plans for the development of recreational amenities and trails.
10. The community sign at Military Highway and the community sign and fencing
will be built with architectural features that are substantially similar to the photographic exhibit
of the signage and fencing submitted to the City Council and on file with the Planning
Department of the City of Virginia Beach and being comprised of substantially similar building
materials and elevations as reflected upon the color photographic renderings. The community
6
sign shall be externally lighted and constructed primarily of brick. The landscaping surrounding
the community sign shall be substantially similar to that set forth in the Site Plan.
11. Open space shall be provided as shown upon the Site Plan, a copy of which is on
file with the City of Virginia Beach, Department of Planning. The open space will not be open
to the public at large. The open space shall be owned and maintained by the owner.
12. A Photometric Plan shall be submitted for review and approval. Full cut-off
fixtures shall be used for parking lot lighting. All lighting on the site shall be consistent with
those standards recommended by the Illuminating Engineering Society of North America.
13. Further lawful conditions or restrictions against the Property may be required by
Grantee during the detailed Site Plan review and administration of applicable codes and
regulations of Grantee by all 'appropriate agencies and departments of Grantee, which shall be
observed or performed by Grantor. Grantor acknowledges that additional further lawful
conditions or restrictions may be imposed by Grantee as a condition of approvals, including but
not limited to final Site Plan approval.
14. All references hereinabove to zoning districts and to regulations applicable
thereto, refer to the City Zoning Ordinance of the City of Virginia Beach, in force as of the date
the conditional rezoning amendment is approved by the Grantee.
15. The Grantor covenants and agrees that (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 specified in this Agreement, including (a) the ordering in writing of the
remedying of any noncompliance with such conditions, and (b) the bringing of legal action or
suit to ensure compliance with such conditions, including mandatory or prohibitory injunction,
7
abatement, damages or other appropriate action, suit or proceedings; (2) the failure to meet all
conditions shall constitute cause to deny the issuance of any of the required building or
occupancy permits as may be appropriate; (3) if aggrieved by any decision of the Zoning
Administrator made pursuant to the provisions of the City Code, the City Zoning Ordinance or
this Agreement, a petition shall be filed to the governing body for the review thereof prior to
instituting proceedings in court; and (4) the Zoning Map shall show by an appropriate symbol on
the Map the existence of conditions attaching to the zoning of the subject Property on the Map
and that the ordinance and conditions may be made readily available and accessible for public
inspection in the office of the Zoning Administrator and in the Plamring 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 Grantee.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
8
WITNESS the following signs and seals:
PING PING LLC,
a Virginia limited liability company
COMMONWEALTH OF VIRGll'ilA
CITY OF~~CI~o-wit:
I, S\(~h~~ ~c.hr . the undersigned, a Notary Public in and for the
City and State aforesaid, .do hereby certify that \U1~UA <!:t<.- . whose name is signed to the
foregoing instrument as Manager of Ping Ping LL , a Virginia limited liability company, has
sworn to, subscriJ>~, and ""~edged the same before me in the City and Commonwealth
aforesaid this ~ay of _ u,;} , 2007 on behalf of said limited liability
company.
.
MY~SiOn~~ \0%
RegIstration No.:
'i) MELINDA TUCKER r
_ Co Notary Public
My C::alth of Virginia
Exps. Feb. 29, 200B
9
KOT ARIDES DEVELOPERS, LLC,
a Virginia limited liability company
COMMONWEALTH OF VIRGINIA
CITY OF VIRGINIA BEACH, to-wit:
I, /)f/(N t. t/ANlJ,4tJ<l1l , the un<l~rsi~ed, a Motary Public in and for the
City and State aforesaid, do hereby certify that Ale< /f!Af; ~Atl~hose name is signed to the
foregoing instrument as Manager of Kotarides Developers, LLC, a Virginia limited liability
company, has sworn to, subscri~g, and acknowledged'the same before me in the City and
Commonwealth aforesaid this .il!!... day of ~~ . 2007 on behalf of said
limited liability company.
NO~iC ~...v-
My commission eXJ>ires: ~. ~ I. ~ I ().
Registration No.: 1D' a64. /
10
EXHIBIT A
LEGAL DESCRIPTION
PARCEL ONE: (Small Golf Parcel)
Beginning at a point on the Easterly right-of-way line of Military Highway and the intersection
of the common boundaries of Leasehold D, Leasehold C-l, and Leasehold C-2; as shown on
"ALTAlACSM Land Title Survey of a Portion of Tract "A" as described in (D.B. 3089, PG.
0333) for Indian River Family Golf Centers, Inc., Kempsville Borough, Virginia Beach,
Virginia" dated 5/16/96; thence leaving the Easterly right-of-way line of Military Highway,
South 05007' 14" West, 39.28' to a point; thence along a curve to the right having a central angle
of 18004'48", a radius of39.31', an arc length of 12.40', and a chord bearing of South 75050' 23"
West to a point; thence continuing along a curve to the right having a central angle of 730 OS'
39", a radius of 13.01', an arc length of 16.59', and a chord bearing of South 30015' 09" East to a
point; thence South 060 17' 39" West, 65.80' to a point; thence South 000 41' 38" East, 40.21' to a
point; thence South 060 45' OS" East, 39.14' to a point; thence South 14046' 16" East, 88.15' to a
point; thence South 120 06' 32" East, 35.76' to a point; thence South 050 30' 00" East, 45.67' to a
point; thence South 080 07' 02" East, 36.13' to a point; thence South 10009' 22" East, 251.38' to
a point; thence South 24035' 13" East 189.24' to a point; thence along a curve to the left having a
central angle of 720 54' 43'\ a radius of 100.00', an arc length of 127.26' and a chord bearing of
South 610 02' 34" East; thence South 540 09' 37" East, 56.74' to a point on the Northerly side
right-of-way line of Old Providence Road; thence along the Northerly side right-of-way line of
Old Providence Road, South 780 03' 56" West, 518.06' to a point; thence leaving the Northerly
right-of-way line of Old Providence Road, North 110 56' 04" West, 46.73' to a point; thence
North 300 28' 42" East, 200.00' to a point; thence North 150 41' 56" East, 331.49' to a point;
thence North 04054' 28" West, 423.74' to a point on the right-of-way line of Military Highway;
thence along the Easterly right-of-way line of Military Highway; North 300 28' 42" East, 68.99'
to a point which marks the point of beginning.
The above described parcel contains 3.115 acres, more or less.
PARCEL TWO: (Large Golf Parcel)
Beginning at a pin found on the Easterly right-of-way line of Military Highway and the common
boundary line of Leasehold C-1 and Leasehold D as shown on "ALTAlACSM Land Title Survey
of a Portion of Tract "A" as described in (D.B. 3089, PG. 0333) for Indian River Family Golf
Centers, Inc., Kempsville Borough, Virginia Beach, Virginia" dated 5/16/96; thence along the
Easterly right-of-way line of Military Highway North 300 28' 42" East, 41.94' to a point; thence
leaving the right-of-way line of Military Highway, South 590 31' 18" East, 138.42' to a point;
thence South 130 12' 32" West, 207.36' to a point; thence South 590 32' 58" East, 40.00' to a
point; thence South 05059' 38" East, 250.00' to a point; thence North 840 00' 22" East, 150.00' to
a point; thence North 050 59' 38" West, 63.29' to a point; thence North 840 00' 22" East, 533.61
to a point; thence South 080 32' 34" East, 66.75' to a point; thence South 580 55' 01" East,
190.88' to a point; thence South 150 58' 59" East, 172.26' to a point on the Northerly side right-
of-way line Old Providence Road; thence along the Northerly side right-of-way of Old
Providence Road the following courses and distances, South 72034' 51" West, 50.19" to a point;
thence South 390 16' 51". West, 206.36 to a point; thence along a carve to the right having a
central angle of 380 47' OS", a radius of 268.18', an arc length of 181.54', and a chord bearing of
South 580 40' 24" West to a point; thence South 780 03' 56" West, 494.57' to a point; thence
leaving the Northerly side right-of.way line of Old Providence Road, North 540 09' 37" West,
56.74' to a point; thence along a curve to the right having a central angle of 720 54' 43", a radius
of 100.00', an arc length of 127.26', and a chord bearing of North 61002' 34" West to a point;
thence North 240 35' 13"..West, 189.24' to a point; thence North 100 09' 22" West, 251.38' to a
point; thence North 08007' 02" West, 36.13' to a point; thence North 05030' 00" West, 45.67' to
a point; thence North 12006' 32" West, 35.76' to a point; thence North 14046' 16" West, 88.15'
to a point; thence North 060 45' 05" West, 39.14' to a point; thence North 000 41' 38" West,
40.21' to a point; thence North 060 17' 39" East, 65.80' to a point; thence along a curve to the left
having a central angle of 730 05' 39" a radius of 13.01', an arc length of 16.59', and a chord
bearing of North 30015' 09" West to a point; thence continuing along a curve to the left having a
central angle of 18004' 48", a radius of 39.31', an arc length of 12.40', and a chord bearing of
North 750 50' 23" West to a point; thence North 050 07' 14" East, 39.28' to a point on the
Easterly right-of-way line of Military Highway; thence leaving the Easterly right-of-way line of
Military Highway, South 470 28' 09" East, 95.35' to a point; thence South 590 31' 18" East,
66.00' to a point; thence North 720 10' 42" East, 47.00' to a point; thence North 130 12' 32" East,
176.79' to a point; thence North 590 31' 18" West, 138.02' to a point on the Easterly right-of-way
line of Military which marks the point of beginning.
The above described parcel contains 13.825 acres.
It being the same property conveyed to Ping Ping, LLC, by deed from Weiguo Ge and Ping Ping
Fan, husband and wife, dated February 7, 2006, recorded as instrument nwnber
20060302000329280. Assignment of landlord's interest in leases assigned from Weiguo Ge and
Ping Ping Fan to Ping Ping, LLC by instrument dated February 28,2006, recorded as instrument
nwnber 20060302000329290.
Less and except that all that certain parcel of land leased by Goodrich and Associates to
Seaboard Citizens National Bank described in a Memorandwn of Lease dated August 15, 1967,
and recorded in the Clerk's Office of the Circuit Court for the City of Virginia Beach in Deed
Book 1020 at page 49.
8266356\\
2
- 48 -
APPOINTMENTS
ITEM #56945
Upon NOMINATION by Councilman Uhrin, City Council APPOINTED:
Gerrie West,
Architect
i-year
iO/Oi/2007fflru09/30/2008
WORKFORCE HOUSING ADVISORY BOARD
Voting: 11-0
Council Members Voting Aye:
William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M
Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E.
Oberndorf, John E. Uhrin Ron A. Villanueva, Rosemary Wilson and James
L. Wood
Council Members Voting Nay:
None
Council Members Absent:
None
Item V-O
October 9, 2007
- 49-
Item V-O
ADJOURNMENT
ITEM # 56946
Mayor Meyera E. Oberndorf DECLARED the City Council Meeting ADJOURNED at 7:51 P.M.
v?~__~~_~~_(~
Beverly 0. Hooks, CMC
Chief Deputy City Clerk
---- -~
---------------------------------
th Hodges Fraser, MMC
City Clerk
Meyera E. Oberndorf
Mayor
City of Virginia Beach
Virginia
October 9, 2007
Q~
Virginia Coastal Access Now
"Helping provide public access to Virginia's Coast"
October 12, 2007
Mr. James K. Spore, City Manager
City of Virginia Beach
City Manager's Office
Municipal Center, Bldg. 1
2401 Courthouse Drive, Suite 234
Virginia Beach, VA 23456
RE: VCAN Note of Apology
Dear Mr. Spore,
Our public access non-profit group Virginia Coastal Access Now (VCAN) would like to
apologize to you for the inappropriate conduct by our member Nlr. Beach while
discussing the legal and safe wade fishing of Lynnhaven Inlet at last Tuesday's City
Council meeting. Mr. Beach's frustration with and passion for this public access issue
led to his confrontational behavior with you and for that we offer our sincerest apologies.
Our non-profit, its members, and residents of Virginia Beach have been co-operatively
working with the City on other public access projects like the North End parking issue.
There are several other public access issues we are working on with the City right now
that we expect to effectively carry out with the City's leadership.
VCAN looks forward to working positively with you and the City of Virginia Beach on this
and future public access issues. Should you have any questions or need additional
information, pleased let me know (757) 410-3180 or
Respectfully,
/lI-d+-Jk~
Mark Feltner, President
Virginia Coastal Access Now
cc: Virginia Beach City Council
1356 Pamlico Blvd.
Chesapeake, VA 23322
vcan@cox.net
www.vcanaccess.com