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DECEMBER 11, 2007 MINUTES I I I 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, Lynnhoven -District 5 CITY COUNCIL AGENDA CITY HALL BUILDING 2401 COURTHOUSE DRIVE VIRGINIA BEACH, VIRGINIA 23456-8005 PHONE:(757) 385-4303 FAX (757) 385-5669 E-MAIL: Ctycnc/@vbgov.com CITY MANAGER - JAMES K. SPORE CITY ATTORNEY - LESLIE L. LILLEY CI1Y CLERK - RUTH HODGES FRASER, MMC 11 DECEMBER 2007 I. CITY COUNCIL BRIEFING - Conference Room - 1:30 PM A. MINORITY BUSINESS COUNCIL - Annual Report Prescott Sherrod, Chair II. CITY MANAGER'S BRIEFING A. PARKS AND RECREATION STRATEGIC PLANNING PROCESS - Status Report Cindy Curtis, Director III. CITY COUNCIL COMMENTS IV. REVIEW OF AGENDA V. INFORMAL SESSION - Conference Room - 3:30 PM A. CALL TO ORDER - Mayor Meyera E. Obemdorf B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION I I I VI. FORMAL SESSION - Council Chamber - 6:00 PM A. CALL TO ORDER - Mayor Meyera E. Obemdorf B. INVOCATION: Father Edward Richardson Retired Chaplain, SMA 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 December 4, 2007 G. AGENDA FOR FORMAL SESSION H. MAYOR'S PRESENTATION 1. DOLPHIN'S PROMISE Cindy Graff, President Colonel Fred W. Greene, III, USA, Ret'd., Board Member 1. PUBLIC HEARINGS 1. NORFOLK SOUTHERN RAILROAD Acquisition of Right-of- W ay Newtown Road to Birdneck Road 2. INDIAN RIVER ROAD Project - Phase VII Acquisition of Easements Lynnhaven Parkway to Elbow Road 3. INSTALLMENT PURCHASE AGREEMENTS Acquisition of Agricultural Land Preservation (ARP) Easements: a. 3521 Robinson Road b. 3501 Baum Road 4. FY 2008 CAPITAL BUDGET - AMEND APPROPRIATION ORDINANCE $4,139,100 COPS Interoperable Communications Technology Grant - Phase II I III J. CONSENT AGENDA K. ORDINANCES 1. Ordinance to AUTHORIZE the acquisition, by agreement or condemnation, a portion of City property for public transportation, linear park, multi-use trail, public utilities, parking and other public purposes of the abandoned Norfolk Southern Railroad right-of-way from Newtown Road to Birdneck Road; the acquisition of temporary and permanent easements; and, AUTHORIZE the City Manager to EXECUTE all documents pertaining thereto. 2. Ordinance to AUTHORIZE the acquisition, by agreement or condemnation, a portion of City property for rights-of-way for the Indian River Road Phase VII project; the acquisition of temporary and permanent easements; and, AUTHORIZE the City Manager to EXECUTE all documents pertaining thereto. DISTRICT 1 - CENTERVILLE 3. Ordinances to AUTHORIZE the City Manager to EXECUTE Installment Purchase Agreements re Agricultural Land Preservation Easements (ARP): DISTRICT 7 - PRINCESS ANNE a. David L. and Teresa L. Winfree at 3521 Robinson Road b. Barry D. and Paula W. Knight at 3501 Baum Road 4. Ordinance to AMEND SS 24-465 to 24-468 ofthe City Code and ADD SS 24-469 to 24-477 re creating the Office of the City Auditor (City Council Appointee) and abolishing the Department of Audit Services. 5. Ordinance to AUTHORIZE the acceptance of a property dedication in fee simple on North Palm Avenue from SHOREHA VEN ASSOCIATES, L.L.c., re the Thalia Creek Greenway. DISTRICT 5 - L YNNHA VEN 6. Ordinances to AUTHORIZE temporary encroachments into portions of City rights-of-way: a. TOWN CENTER ASSOCIATES 7, L.L.C., at Commerce and Market Streets re the maintenance of the existing canopy and porte-cochere with signs DISTRICT 4 - BA YSIDE b. EARL L. and MARO A. ROYER at 1460 Watersedge Drive re the maintenance of existing brick columns, electrical conduits, brick column mailbox and the construction and maintenance of six (6) additional brick columns DISTRICT 5 - L YNNHA VEN I III 7. Ordinance re the Community Oriented Policing Services (COPS) Interoperable Communications Grant re funding regional communication equipment and installation: a. CREATE the COPS Interoperable Communications Technology Grant - Phase II Capital Improvement Project b. ACCEPT and APPROPRIATE $3,000,000 from the U.S. Department of Justice, with revenue from the federal government increased accordingly c. APPROPRIATE $300,000 from the City of Norfolk, $300,000 from the City of Hampton and $200,000 from the City of Portsmouth, with revenue from the local governments increased accordingly 8. Ordinance re Operation Smile Headquarters and Tidewater Community College expansion: a. RENAME the Tidewater Community College expansion project to the Tidewater Community College Expansion/Operation Smile Headquarters project b. TRANSFER $3,500,000 from Various Site Acquisitions project to Tidewater Community College Expansion/Operation Smile Headquarters project c. AUTHORIZE the City Manager to EXECUTE the Term Sheet with Operation Smile L. PLANNING 1. Applications for Enlar~ements ofNonconformin~ Use: a. CORY LANGLEY expansion to an existing single-family dwelling and duplex at 8006 and 8008 Atlantic Avenue DISTRICT 5 - L YNNHA VEN RECOMMENDATION APPROVAL b. NANCY RICHARDSON expansion to an existing duplex at 7212 Atlantic Avenue DISTRICT 5 - L YNNHA VEN RECOMMENDATION APPROVAL I III 2. Applications of SOUTHEAST MARINE GROUP, LLC, re dry storage for boats and trailers, a restaurant, pool and recreational area at 2272 Old Pungo Ferry Road: DISTRICT 7 - PRINCESS ANNE a. Variance to S5B of the Site Plan Ordinance, Floodplain Regulations and to the Southern Watersheds Management Ordinance to allow fill re the proposed encroachments b. Modification of Conditions on a Conditional Use Permit approved April 11 , 1966, to add certain facilities, parking and landscaping DEFERRED RECOMMENDA nON NOVEMBER 27,2007 APPROV AL 3. Applications for Modifications of Conditions: a. BROWN BUILDING CORPORATION on a Conditional Use Permit approved July 10,2007, re the addition of a porte-cochere covered drop-off area at 4847 Dolton Drive DISTRICT 2 - KEMPSVILLE RECOMMENDATION APPROVAL b. DELAWARE CORPORATION on a Conditional Use Permit approved May 23, 2006, re the addition of an apartment for a fulltime manager and to allow recreational vehicles during construction at London Bridge Road and Harpers Road DISTRICT 6 - BEACH RECOMMENDA nON APPROVAL c. W A W A, INC. on a Conditional Use Permit approved November 26, 2002, re the addition of a drive-up food service and an outdoor trash receptacle at 2954 Virginia Beach Boulevard DISTRICT 5 - L YNNHA VEN RECOMMENDATION APPROV AL I III 4. Applications for Conditional Use Permits: a. WELLINGTON FARM, L.L. c., re boarding and training of horses at 3125 Hungarian Road. DISTRICT 7 - PRINCESS ANNE RECOMMENDATION APPROVAL b. OCEANA CHURCH OF CHRIST re a church at 3073 Indian River Road. DISTRICT 7 - PRINCESS ANNE RECOMMENDATION APPROV AL c. WILLIE DONALD MARTIN, JR., re an auto repair garage at 1128 Barrs Road. DISTRICT 4 - BA YSIDE STAFF RECOMMENDA nON RECOMMENDATION INDEFINITE DEFERRAL APPROV AL 5. Applications of SYKES REAL PROPERTIES, L.L.c., at Birdneck Road and Beautiful Street: DISTRICT 6 - BEACH. a. Chanf!e of Zoning District Classification from R -10 Residential District to Conditional I-I Light Industrial District b. Conditional Use Permit re a bulk storage yard RECOMMENDATION APPROVAL 6. Application of ANWARUL ISLAM and SHAHANA ISLAM for a Chanf!e ofZoninf! District Classification from 0-2 Office District to Conditional B-1 Neighborhood Business District re development of two-story retail and office building, parking and landscaping at 1308 and 1314 Kempsville Road. DISTRICT 2 - KEMPSVILLE RECOMMENDA nON APPROV AL II III M. APPOINTMENTS COMMUNITY SERVICES BOARD RESORT ADVISORY COMMISSION VIRGINIA BEACH COMMUNITY DEVELOPMENT CORPORATION - VBCDC WORKFORCE HOUSING ADVISORY COMMITTEE N. UNFINISHED BUSINESS O. NEW BUSINESS P. ADJOURNMENT CITY COUNCIL'S SCHEDULE 2008 January 8 Briefing, Informal, Formal, Planning, Open Dialogue January 22 Briefing, Informal, Formal, Planning February 19 Location to be Announced -7:15 pm SwrmwarerPfunsandFunmng ********* If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 385-4303 *********** Agenda 12/04/2007mb www.vbgov.com II I - 1 - MINUTES VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia December 11,2007 Vice Mayor Louis R. Jones called to order the CITY MANAGER'S BRIEFING re PARKS AND Recreation's STRATEGIC PLANNING PROCESS in the City Council Conference Room, City Hall, on Tuesday, December 11,2007, at 1:40 P.M Council Members Present: 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: William R. "Bill" DeSteph [Death of Grandmother 1 Harry E. Diezel [Entered: 2:55 P.Ml December 11, 2007 I III - 2 - CITY MANA GER'S BRIEFING MINORITY BUSINESS COUNCIL - Annual Report ITEM # 57137 MINORITY BUSINESS COUNCIL ANNUAL REPORT was RESCHEDULED for the JANUARY 22, 2008, CITY COUNCIL SESSION. December 11, 2007 I ill - 3 - CITY MANA GER'S BRIEFING PARKS AND RECREATION STRATEGIC PLANNING PROCESS 1:40 P.M. ITEM # 57138 Cindy Curtis, Director - Parks and Recreation, introduced Pete Hangen, Coordinator - Parks and Recreation, who "led the charge" of the Parks and Recreation Strategic Planning Initiative. The plan entailed approximately three (3) years. Much energy and effort has been expended by multiple staff. In late 2004, City Council directed Parks and Recreation to prepare a Strategic Plan. Strategic Plan Process Components · Determine the needs and priorities of the community · Analyze delivery of services · Develop actions to realign with the community priorities and needs · Develop actions to realign for efficiency · Execute actions Assessments Conducted · Community Survey Facilities Analysis · Landscape Maintenance Review · Program and Revenue Analysis · Pricing Policy Revised · Marketing Evaluation Workforce Planning and Development Integration The Community Survey was conducted late in 2005. "One-on-one" meetings were also conducted with the City Council Members. Ms. Curtis outlined the top nine (9) priorities delineated from the Citizen Survey Citizen Survey - Program Needs 1. Adult Fitness and Wellness 2. Youth Learn to Swim 3. Water Fitness 4. Youth Sports 5. Nature Based Activities 6. Large Special Events in Parks 7. Youth Summer Camp 8. Music Programs 9. Environmental Education December 11, 2007 I III - 4 - CITY MANA GE R'S BRIE FING PARKS AND RECREATION STRATEGIC PLANNING PROCESS ITEM # 57138 (Continued) Themes from Community Input 1. Walking and Biking Trails 2. Large Community Parks 3. Recreation Centers 4. Natural Areas/Nature Trails/Nature Center 5. Off Leash Dog Parks 6. Picnic Shelters/Picnic Areas 7. Small Neighborhood Parks 8. Children's Playgrounds 9. Indoor Fitness and Exercise Facilities In 2006, the Community Priorities were shared with City Council: Community Priorities Stewardship The Environment/Outdoor Healthy Lifestyles Community Access Parks and Recreation's Vision is a balanced, sustainable and value-focused system of parks, recreation and public spaces that create a sense of community Mission Deliver parks, recreation programs and public spaces that reflect the priorities of our community Support tiered levels of service that recognize the diverse needs of our community Focus on sustain ability of core programs, services and facilities through efficient and effective business practices Approximately five (5) years ago, Landscape Services was not a part of Parks and Recreation. The previous Vision and Mission did not address the outstanding work of this very large worliforce. Organizational Gaps · The organization is not strategically aligned to focus on these priorities · There is not a clear delineation of internal support for external delivery of services · Operating and business standards are not consistent · Organizational structure is not optimal December 11, 2007 II III - 5 - CITY MANA GER'S BRIEFING PARKS AND RECREATION STRATEGIC PLANNING PROCESS ITEM # 57138 (Continued) Director's Office Resource Development Bureau Business Systems Mrs. Curtis highlighted Programming and Operations and Landscape Management of the New Structure. Landscape Management is a change from what is currently addressed as Parks and Landscape Services. The function of Landscape Management is too large for this City not to have tactically focused leadership. This must be done in the future to be successful. In terms of Programming and Operations, the community has requested, in addition to just recreation, health and wellness activities, family programming "indoors and outdoors ", both in Parks and Recreation Centers. The Programmers need to work together and need to be jointly held and managed by leadership. Over one hundred fifty (J 50) of the five hundred forty (540) Parks and Recreation staff was actively engaged in influencing this decision. Mrs. Curtis described the elements of the Community Priorities: Stewardship · Maintain What We Own · Zoned Maintenance · Hansen Application Streamlined Business Processes · Pricing and Revenue Plan · Flattening the Organization The Hansen software application system will be initiated. Parks and Recreation is beingjoined by Public Utilities in the utilization of a software system that will significantly improve and standardize work orders and assets. All of this information was previously delineated on excel spreadsheets and other software programs. This Hansen system will bring Parks and Recreation into the 2Ft Century. December 11, 2007 II I I - 6 - CITY MANAGER'S BRIEFING PARKS AND RECREATION STRATEGIC PLANNING PROCESS ITEM # 57138 (Continued) TheEnv"onmen~Outdoon · City Arborist Outdoor Programming · Environmental Education · Programming in the Parks Healthy Lifestyles · Fitness Programming · Equity Mapping · Renewed emphasis on trails, bikeways and connections to facilities Community Access · Tiered Levels of Service · Tiered Pricing Strategy · Program Standards · One Stop Shopping · Facilities Connected by Trails and Bikeways Business practices are being streamlined to create "one stop shopping" to improve accessibility by the community. When this is fully implemented, a citizen will be able to go to any recreation center or on-line to register for any classes, rent a pavilion or any of the special spaces. This is a tremendous business improvement. It is very important for Parks and Recreation to price things appropriately within the market but also being sure the City has the capability of providing access to those who might have trouble affording same. Parks and Recreation will work closely with Human Services to insure this access. The number of supervisors has been reduced enabling more individuals who are trained and available to work with the customers. Decision making is being driven throughout the organization. Layers of bureaucracy are being reduced. The position of City Arborist has been vacant for over a year. As Landscape Services was requested to take on "more and more" responsibilities, including the entire tree planting which occurs in the subdivisions, new roadways and medians. Parks and Recreation decided that the new Landscape Management should have an Arborist function that truly prescribed to that responsibility. There are over 100,000 trees for which the department is responsible. This requires the dedication of one full time Arborist. The Department is in the process of advertising for this position for a true "City Arborist" to create a viable management plan for the City's Beautification Commission for the urban canopy. No additional funding is requested for this position. This position is being funded in-house from savings elsewhere in the reorganization ofpositions. There will be much larger community events planned. The Parks will be utilized to not only attract community members, but also the tourists. December 11, 2007 I, , I - 7 - CITY MANAGER'S BRIEFING PARKS AND RECREATION STRATEGIC PLANNING PROCESS ITEM # 57138 (Continued) Concerning areas which require consulting as a result of staff recommendations, Mrs. Curtis advised the community's feedback has driven this strategic planning process. The staff performed the majority of work re the development of the Plan. Mrs. Curtis advised of certain areas where specialists were required i.e. initial community survey. This survey required special skills and techniques not available in-house. Thus, a consultant was paid for this particular endeavor. Parks and Recreation was directed by City Council, particularly in the area of Landscape Management, to bring in an expert to evaluate how the department's work is performed. Therefore, Landscape Management, will be undertaken in a different matter, as a result of their sharing best practices across the United States. Mowing was recommended to be performed contractually versus in-house. Additional funding last year was provided for this purpose. Parks and Recreation will continue to utilize contractual services where most efficient. Council Lady Henley referenced the prioritizing in the southern portion of the City which was a disaster this past year. Mrs. Curtis advised the small business contractor was in a very bad accident and his operation came to almost a "grinding halt". He was given sixty (60) days to remedy the situation; however, the City had to mow and then "back charged" the contractor. Council Lady McClanan advised this has occurred several times over the past few years. Mrs. Curtis concurred a balance of both was necessary. There was no over commitment to the contractual. As part of the budget process, a sheet outlining any fee increases expected to occur is presented to City Council. Modest increases have been establishedfor a variety of programs. Mrs. Curtis will advise City Council when fees are to be increased. Marketing pricing means making sure the department is considering a percentage of the operating costs to offer the program. Parks are for the public good and there is no charge to enter these parks. Ms. Curtis advised Council Lady McClanan, the Planning, Design and Development Division performs all the Master Planning for Parks, Community Recreation Centers and designs all the replacement playgrounds. This replacement was performed internally at a significant cost savings. Council Lady McClanan expressed appreciation to Mrs. Curtis and her staff. Council Lady Henley advised Brian Solis, Coordinator with the Open Space Subcommittee, has been briefing this Committee on the inventory of parks. Mrs. Curtis advised this will also be presented to the City Council as an addendum within the Plan. Mayor Oberndorf referenced a National Convention in Virginia Beach extended compliments to the Mayor re the City's Parks and Recreation's outstanding programs. December 11, 2007 II III - 8 - CITY COUNCIL COMMENTS 2:36 P.M ITEM # 57139 Mayor Oberndorf referenced the beautiful "thank you note" from the William Meyers family. On November 13, 2007, City Council ADOPTED a Resolution naming the William "Billy" Myers, Sr. Veterans Memorial Park. Before he passed, Mr. Myers was aware of the designation. ITEM # 57140 On Monday, December 10, 2007, there was another Community meeting re gangs and crime in the area. A number of Civic Leagues were represented. As the City Council moves forward with priorities for the future, crime, especially re gang activities, are on the forefront of the citizen's concerns these days. Police representatives were in attendance and are doing their best to solve these concerns; however, sometimes staffing is the issue. Councilman Dyer advised when school adjourns, in some of the neighborhoods, there has been an increase in crime associated with gangs. Honeybee Golf Course experienced excessive vandalism, approximately $100,000 worth of damage. The residents of Charlestown Woods are concerned re youth congregating behind the Farm Fresh at Woods Corner. December 11, 2007 II I I - 9 - AGE N DA REV IE W S E S S ION 2:39 P.M. ITEM # 57141 1. Ordinance to AUTHORIZE the acquisition, by agreement or condemnation, a portion of City property for public transportation, linear park, multi-use trail, public utilities, parking and other public purposes of the abandoned Norfolk Southern Railroad right-of-way from Newtown Road to Birdneck Road; the acquisition of temporary and permanent easements; and, AUTHORIZE the City Manager to EXECUTE all documents pertaining thereto. Mayor Oberndorf advised the City Council empowered the Hampton Roads Transportation District (HRT) to try and negotiate for the purchase of this right-of-way. Unfortunately, this was not successful. ITEM # 57142 2. Ordinance to AUTHORIZE the acquisition, by agreement or condemnation, a portion of City property for rights-of-way for the Indian River Road Phase VII project; the acquisition of temporary and permanent easements; and, A UTHORIZE the City Manager to EXECUTE all documents pertaining thereto. DISTRICT 1 - CENTERVILLE Council Lady McClanan expressed concern re the comment in the newspaper re trees being cut down at the Stumpy Lake Spillway. She does not want the same thing occurring as on the Birdneck Road project. The City Manager advised the City is trying to minimize the taking of trees on all projects and will emphasize this concept to the Public Works Department. Councilman Dyer will monitor. Councilman Villanueva advised the trees targeted are in proximity of the speed bumps Jim Lawson, Public Works- Real Estate, advised the staff's recommendation was for DENIAL. The staff shall contact the applicant ITEM # 57143 BYCONSENSUS, thefollowing items shall compose the CONSENT AGENDA: K. ORDINANCES 1. Ordinance to AUTHORIZE the acquisition, by agreement or condemnation, a portion of City property for public transportation, linear park, multi-use trail, public utilities, parking and other public purposes of the abandoned Norfolk Southern Railroad right-of-way from Newtown Road to Birdneck Road; the acquisition of temporary and permanent easements; and, A UTHORIZE the City Manager to EXECUTE all documents pertaining thereto. December 11,2007 II III - 10- AGENDA RE VIE W SESSION ITEM # 57143 (Continued) 2. Ordinance to AUTHORIZE the acquisition, by agreement or condemnation, a portion of City property for rights-of-way for the Indian River Road Phase VII project; the acquisition of temporary and permanent easements; and, AUTHORIZE the City Manager to EXECUTE all documents pertaining thereto. DISTRICT 1 - CENTERVILLE 3. Ordinances to AUTHORIZE the City Manager to EXECUTE Installment Purchase Agreements re Agricultural Land Preservation Easements (ARP): DISTRICT 7 - PRINCESS ANNE a. David L. and Teresa L. Winfree at 3521 Robinson Road b. Barry D. and Paula W. Knight at 3501 Baum Road 4. Ordinance to AMEND 99 24-465 to 24-468 of the City Code and ADD 9924-469 to 24-477 re creating the Office of the City Auditor (City Council Appointee) and abolishing the Department of Audit Services. 5. Ordinance to AUTHORIZE the acceptance of a property dedication in simple on North Palm Avenue from SHOREHA VEN ASSOCIATES, L.L.C., re the Thalia Creek Greenway. DISTRICT 5 - LYNNHA VEN 6. Ordinances to AUTHORIZE temporary encroachments into portions of City rights-of-way: a. TOWN CENTER ASSOCIATES 7, L.L.C., at Commerce and Market Streets re the maintenance of the existing canopy and porte-cochere with signs DISTRICT 1 BAYSIDE DISTRICT 5 - LYNNHA VEN b. EARL L. and MARO A. ROYER at 1460 Watersedge Drive re the maintenance of existing brick columns, electrical conduits, brick column mailbox and the construction and maintenance of six (6) additional brick columns DISTRICT 5 - LYNNHA VEN 7. Ordinance re the Community Oriented Policing Services (COPS) Interoperable Communications Grant re funding regional communication equipment and installation: a. CREATE the COPS Interoperable Communications Technology Grant - Phase II Capital Improvement Project b. ACCEPT and APPROPRIATE $3,000,000 from the Us. Department of Justice, with revenue from the federal government increased accordingly December 11,2007 II III - 11 - AGE N DA REV IE W S E S S ION ITEM # 57/43 (Continued) c. APPROPRIATE $300,000 from the City of Norfolk, $300,000 from the City of Hampton and $200,000 from the City of Portsmouth, with revenue from the local governments increased accordingly 8. Ordinance re Operation Smile Headquarters and Tidewater Community College expansion: a. RENAME the Tidewater Community College expansion project to the Tidewater Community College Expansion/Operation Smile Headquarters project b. TRANSFER $3,500,000 from Various Site Acquisitions project to Tidewater Community College Expansion/Operation Smile Headquarters project c. AUTHORIZE the City Manager to EXECUTE the Term Sheet with Operation Smile Council Lady McClanan will vote a VERBAL NAY on Item 3a.b. (ARPs - Winfree and King) Item 4 (Office of the City Auditor) shall be REVISED, BY CONSENT, to be effective February 16, 2008 Item 6b (Royer) shall be DEFERRED, BY CONSENT, until the City Council Session of January 22, 2008. The City Manager shall instruct Public Works to send a letter to all the adjacent property owners notifying them of the encroachment. December 11, 2007 II I I - 12 - AGE N DA REV IE W S E S S ION ITEM # 57144 2. Applications of SOUTHEAST MARINE GROUP, LLC, re dry storage for boats and trailers, a restaurant, pool and recreational area at 2272 Old Pungo Ferry Road: DISTRICT 7 - PRINCESS ANNE a, Variance to ~5B of the Site Plan Ordinance, Floodplain Regulations and to the Southern Watersheds Management Ordinance to allow fill re the proposed encroachments b. Modification of Conditions on a Conditional Use Permit approved April 11, 1966, to add certainfaGilities, parking and landscaping Mayor Oberndorf referenced concern expressed by the former owner of the old Captain George's on this property. He is upset relative individuals traversing on his waterway and land without permission. This item shall be discussed during the Formal Session. Council Lady Henley has concern relative the size and impact. She did not anticipate nine hundred (900) square feet of building and six hundred forty- eight (648) boats. The plan has been somewhat adjusted She has also heard concerns re illegal activity occurring on the vacant property. Council Lady Henley requested a presentation by the applicant concerning the best use. ITEM # 57145 4.b. Applicationfor a Conditional Use Permit re OCEANA CHURCH OF CHRISTre a church at 3073 Indian River Road DISTRICT 7 - PRINCESS ANNE Council Lady Henley hoped the application understood this is not in the City service area for water and sewer. This item will be discussed during the FORMAL SESSION. ITEM # 57146 BY CONSENSUS, the following items shall compose the PLANNING BY CONSENT AGENDA L. PLANNING 1. Applicationsfor Enlargements ofNonconforminf! Use: a. CORY LANGLEY expansion to an existing single-family dwelling and duplex at 8006 and 8008 Atlantic Avenue DISTRICT 5 - LYNNHA VEN b. NANCY RICHARDSON expansion to an existing duplex at 7212 Atlantic Avenue DISTRICT 5 - LYNNHA VEN December 11, 2007 II III - 13 - AGE N DA REV I E W S E S S ION ITEM # 57146 (Continued) 3. Applications for Modifications of Conditions: a. BROWN BUILDING CORPORATION on a Conditional Use Permit approved July 10, 2007, re the addition of a porte-cochere covered drop- off area at 4847 Dolton Drive DISTRICT 2 - KEMPSVILLE b. DELAWARE CORPORATION on a Conditional Use Permit approved May 23,2006, re the addition of an apartmentfor afulltime manager and to allow recreational vehicles during construction at London Bridge Road and Harpers Road DISTRICT 6 - BEACH c. WAWA,INC. on a Conditional Use Permit approved November 26, 2002, re the addition of a drive-up food service and an outdoor trash receptacle at 2954 Virginia Beach Boulevard DISTRICT 5 - LYNNHA VEN 4. Applicationsfor Conditional Use Permits: a. WELLINGTON FARM, L.L. c., re boarding and training of horses at 3125 Hungarian Road. DISTRICT 7 - PRINCESS ANNE c. WILLIE DONALD MARTIN, JR., re an auto repair garage at 1128 Barrs Road. DISTRICT 4 - BAYSIDE 5. Applications of SYKES REAL PROPERTIES, L.L.c., at Birdneck Road and Beautiful Street: DISTRICT 6 - BEACH a. Change of Zoning District Classification from R-10 Residential District to Conditional 1-1 Light Industrial District b. Conditional Use Permit re a bulk storage yard 6. Application of ANWARUL ISLAM and SHAHANA ISLAMfor a Change of Zoninz District Classification from 0-2 Office District to Conditional B-1 Neighborhood Business District re development of two-story retail and office building, parking and landscaping at 1308 and 1314 Kempsville Road. DISTRICT 2 - KEMPSVILLE Council Lady McClanan will vote a VERBAL NAY on Item L,3.b. (DELAWARE CORPORATION)) Vice Mayor Jones shall ABSTAIN on Item 3. c. (W A W A, INC.) Councilman Wood shall ABSTAIN on Item L.4.c. (WILLIE DONALD MARTIN, JR.) Council Members Henley and McClanan will vote a VERBAL NA Y on Item L, 5. (SYKES REAL PROPERTIES, L.L.C.) December 11,2007 II I I - 14- ITEM # 57147 Mayor Meyera E. Oberndorf entertained a motion to permit City Council to conduct its CLOSED SESSION, pursuant to Section 2. 1-3711 (A), Code of Virginia, as amended, for thefollowingpurpose: PERSONNEL MATTERS: Discussion, consideration of, or interviews of prospective candidates for employment, assignment, appointment, promotion, performance, demotion, salaries, disciplining or resignation of specific public officers, appointees or employees pursuant to Section 2.2-3711 (A)(J) Council Appointments: Boards, Commissions, Committees, Authorities and Agencies PUBLICLY-HELD PROPERTY: Discussion or consideration of the, acquisition, or of the disposition of publicly-held property, where discussion in an open meeting would adversely affect the bargaining position or negotiating strategy of the public body pursuant to Section 2.2-3711 (A)(3). Acquisition/Disposition of City Property: Dome Site RFI L ynnhaven Marina Shore haven Deed of Dedication Princess Anne Commons Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council voted to proceed into CLOSED SESSION at 3:14 P.M. Voting: 10-0 Council Members Voting Aye: 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: William R. "Bill" DeSteph (Break: 3:16P.M. -3:19 P.M.) (Private Session: 3:19 P.M. - 3:50 P.M.) (Closed Session: 3:50 P.M. - 5:35 P.M.) (Dinner: 5:35 P.M. - 5:55 P.M.) December 11, 2007 II I I - 15 - FORMALSESSION VIRGINIA BEACH CITY COUNCIL December 11,2007 6: 09 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, December 11, 2007, at 6:09 P.M Council Members Present: 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 Absent: William R. "Bill" DeSteph [Death ofGrandmotherJ INVOCATION: Father Edward Richardson Retired Chaplain, SMA 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. December 11, 2007 II I I - 16- 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. December 11, 2007 - 17 - Item V-E. CERTIFICATION OF CLOSED SESSION ITEM#57148 Upon motion by Councilman Dyer, seconded by Councilman Wood, City Council CERTIFIED THE CLOSED SESSION TO BE IN ACCORDANCE WITH THE MOTION TO RECESS. Only public business matters lawfully exempt from Open Meeting requirements by Virginia law were discussed in Closed Session to which this certification resolution applies. AND, Only such public business matters as were identified in the motion convening the Closed Session were heard, discussed or considered by Virginia Beach City Council. Voting: 10-0 Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, 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: William R "Bill"DeSteph December 11, 2007 II , I RESOLUTION CERTIFICATION OF CLOSED SESSION VIRGINIA BEACH CITY COUNCIL WHEREAS: The Virginia Beach City Council convened into CLOSED SESSION, pursuant to the affirmative vote recorded in ITEM # 57147, Page 14, and in accordance with the provisions of The Virginia Freedom of Information Act, and, WHEREAS: Section 2.2-3712 of the Code of Virginia requires a certification by the governing body that such Closed Session was conducted in conformity with Virginia law. NOJf, THEREFORE, BE IT RESOL VED: That the Virginia Beach City Council hereby certifies that, to the best of each member's knowledge, (a) only public business matters lawfully exempted from Open Meeting requirements by Virginia law were discussed in Closed Session to which this certification resolution applies; and, (b) only such public business matters as were identified in the motion convening this Closed Session were heard, discussed or considered by Virginia Beach City Council. ~<~~1~ th Hodges raser, MMC City Clerk December ll, 2007 II I I - 18 - Item V-F.I ITEM # 57149 Upon motion by Council Lady Wilson, seconded by Councilman Dyer, City Council APPROVED the Minutes of the INFORMAL and FORMAL SESSIONS of December 4, 2007. Voting: 10-0 Council Members Voting Aye: 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: William R. "Bill" DeSteph December 11, 2007 II I I - 19 - Item V-G.2. ADOPT AGENDA FOR FORMAL SESSION ITEM 57150 BY CONSENSUS, City Council ADOPTED: AGENDA FOR THE FORMAL SESSION December 11, 2007 II I I - 20- Item V-H.1 MAYOR'S PRESENTATION ITEM 57151 Mayor Oberndorf PROCLAIMED: DECEMBER 11, 2007 A DOLPHIN'S PROMISE APPRECIATION DAY A DOLPHIN'S PROMISE, a citizens' non-profit recognizes the importance of eliminating cancer as a major health problem by prevention, diminishing suffering and saving lives - through research, education, advocacy and services. They have worked to encourage businesses and citizens to sponsor dolphin sculptures, thereby raising funds that will be donated to cancer research and the Virginia Aquarium. Cindy Graff President, Colonel Fred W. Greene III, USA Retired, Board Member and Jeff Sheets ACCEPTED the Proclamation Colonel Green, advised over $200,000 was raised. There are one hundred nineteen (119) dolphins throughout the City Colonel Green extended appreciation to Diane Roche, Assistant to the City Manager for Media and Communications. Cindy Graff an artist, created the concept of A Dolphin's Promise to find a cure for Cancer. This Dolphin's Promise is in memory of her mother, who died of Cancer. In October Ms. Graff Colonel Greene and Mr. Sheets met with Lance Armstrong and presented a Check in the amount of $125,000 to his Foundation for the advancement of Cancer education, research, advocacy and public health, making it the Foundation's third largest donation ever. Since their return, Dolphin's Promise has continued to raise funds. Cindy Graff PRESENTED a Check in the amount of $40,000 Lynn Clements, Director - The Virginia Aquarium, a Marine Science Center On behalf of the Marine Mammals Stranding Program Mayor Oberndorf recognized Council Member Rosemary Wilson and Lynn Clements who were honored by "Inside Business Magazine" as winners of "Outstanding Women in Business". December 11, 2007 II 'II 1frntlumuttnu ~ iJJoEphin's Promise, a citizens non-profit, recognizes the importance oj eCiminati1l{J cancer as a major hea{th pr06fem 6y prevention, diminishing sufferi1l{J and savi1l{J Cives -- throUIJh research, education, cufvocacy ana service; and In partnership with the City of Virginia (jJeach, they have worRgd to encourage 6usinesses and citizens to sponsor doEphin scuEptures, there6y raisi1l{Jfurnis that wi{[ 6e donated to cancer research and the Virginia ~quarium; and 'Ilieir efforts in promoti1l{J sponsorships have resu{ted in a $125,000 donation to the Lance ~nnstr01l{J 'Foundation for the cufvancement oj cancer education, research, cufvocacy and pu6Cic hearth, maf&1I{J it the 'Foundation's third {argest donation ever; and Whenas: 'Ilieir hard wort and efforts have raised $40,000 for the :Marine :Mammafs Stranding Program at the Virginia ~quarium; and 'WFzereas: 'Ilie noMe and sincere efforts of Cindy qraf, 'Fred qreene and Jeff Sheats have resu{ted in ~ iJJoEphins Promise doi1l{J mUCh to heEp others and their fami{ies find hope and promise in the cause of cancer and cancer research; and 'Wlienas: 'Ilieir efforts, their sacrifices and their passion have resu{ted in their generous donations to the cause, and are an investment in the future we a{[ must share. 'Now, 'Ilierefore, I, :Meyera 'E. 06emdorf, :Mayor of the City of Virginia (jJeach, Virginia, do here6y Proc{aim: 'W1iereas: 'W1iereas: Whenas: CDecem6er lp1i, 2007 JI (]Jolp6in's fPromise Jlppreciation (]Jay In 'Virginia (jJeacli, ana I ca{[ upon a{[ citizens to encourage ana support efforts to help in this effort to fiBht t/iis disease and offer /iope and support to t/iose w/io are in need of sucli. In 'Witness Whenof, I have /iereunto set my hand and caused the Officia{ Sear of the City of Virginia <Beac/i, Virginia, to 6e a~d t/iis 'El'eventli day of iJJecem6er, 'Two'IliousanaSeven. ~~~~~ :Mayor III I ;11 - 21 - Item V-I.1. PUBLIC HEARING ITEM 57152 Mayor Oberndorf DECLARED a PUBLIC HEARING: NORFOLK SOUTHERN RAILROAD Acquisition of Right-of-Way Newtown Road to Birdneck Road The following registered to speak in SUPPORT: Henry Ryto, 408 Jasper Court, Phone: 687-8585, could not over emphasize the importance of acquiring the right-of-way. Norfolk is now proceeding with Light Rail. The busiest bus route in Hampton Roads is Route 20 and carries approximately 1.1-MILLION passengers per year. Mr. Ryto believes in giving Norfolk Southern fair value for their property. Norfolk Southern is asking nearly three (3) times as much per mile for the purchase of right-of-way in Virginia Beach as the purchase by Norfolk. There being no further speakers, Mayor Oberndorf CLOSED THE PUBLIC HEARING. December 11, 2007 - 22- Item V-I.2. PUBLIC HEARING ITEM 57153 Mayor Oberndorf DECLARED a PUBLIC HEARING: INDIAN RIVER ROAD Project - Phase VII Acquisition of Easements Lynnhaven Parkway to Elbow Road There being no speakers, Mayor OberndorfCLOSED THE PUBLIC HEARING. I' , I December 11, 2007 I, I I - 23 - Item V-L3. PUBLIC HEARING ITEM 57154 Mayor Oberndorf DECLARED a PUBLIC HEARING: INSTALLMENT PURCHASE AGREEMENTS Acquisition of Agricultural Land Preservation (ARP) Easements a. 3521 Robinson Road b. 3501 Baum Road There being no speakers, Mayor Oberndorf CLOSED THE PUBLIC HEARING. December 11, 2007 I III - 24- Item V-I.4. PUBLIC HEARING ITEM 57155 Mayor Oberndorf DECLARED a PUBLIC HEARING: FY 2008 CAPITAL BUDGET - AMEND APPROPRIATION ORDINANCE $4,139,100 COPS Interoperable Communications Technology Grant-Phase II There being no speakers, Mayor OberndorfCLOSED THE PUBLIC HEARING. December 11, 2007 II , I - 25 - Item V-K. ORDINANCES ITEM 57156 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council APPROVED IN ONE MOTION Ordinances 1,2, 3.abl, 4 (AS REVISED), 5, 6a,. 6.b. (DEFERRED), 7a1blc. and 8 albic of the CONSENT AGENDA. Item K.4 (CITY AUDITOR) shall be REVISED, to be effective February 16,2008. Item 6b (ROYER) shall be DEFERRED, BY CONSENT, until the City Council Session of January 22, 2008. The City Manager shall instruct Public Works to send a letter to all the adjacent property owners notifying them of the encroachment. Voting: 10-0 (By Consent) Council Members Voting Aye: 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: William R. "Bill" DeSteph Council Lady McClanan shall vote a VERBAL NAY on Item K.3alb December 11,2007 II III - 26- Item V,XJ. ORDINANCES ITEM 57157 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED: Ordinance to AUTHORIZE the acquisition, by agreement or condemnation, a portion of City property for public transportation, linear park, multi-use trail, public utilities, parking and other public purposes of the abandoned Norfolk Southern Railroad right-of-way from Newtown Road to Birdneck Road; the acquisition of temporary and permanent easements; and, AUTHORIZE the City Manager to EXECUTE all documents pertaining thereto. Voting: 10-0 (By Consent) Council Members Voting Aye: 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: William R. "Bill" DeSteph December 11, 2007 I' ill 1 AN ORDINANCE TO AUTHORIZE 2 ACQUISITION OF PROPERTY IN FEE SIMPLE 3 FOR PUBLIC TRANSPORTATION, LINEAR 4 PARK, MULTI-USE TRAIL, PUBLIC UTILITIES, 5 PARKING AND/OR OTHER FUTURE PUBLIC 6 PURPOSES OF APPROXIMATELY 10.58 MILES 7 OF ABANDONED NORFOLK SOUTHERN 8 RAILROAD RIGHT OF WAY FROM NEWTOWN 9 ROAD TO BIRDNECK ROAD IN THE CITY OF 10 VIRGINIA BEACH, THE ACQUISITION OF THE 11 PROPERTY TO BE EITHER BY AGREEMENT 12 OR BY CONDEMNATION. 13 14 WHEREAS, in the opinion of the Council of the City of Virginia Beach, Virginia, a 15 public necessity exists for acquisition of this abandoned railroad right-of-way for public 16 transportation, linear park, multi-use trail, public utilities, parking and/or other public 17 purposes to improve transportation within the City and for other related public purposes 18 for the preservation of the safety, health, peace, good order, comfort, convenience, and 19 for the welfare of the people in the City of Virginia Beach. 20 21 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 22 VIRGINIA BEACH, VIRGINIA: 23 24 Section 1. That the City Council authorizes the acquisition by purchase or 25 condemnation pursuant to Sections 1-219.1; 15.2-1901, et sea., Sections 33.1-91, et 26 sea., and Title 25.1 of the Code of Virginia of 1950, as amended, of all that certain real 27 property in fee simple (the "Property"), being described as all of that certain real 28 property and improvements thereon, now or formerly owned by Norfolk Southern 29 Corporation, constituting the length of the rail line abandoned in the City of Virginia 30 Beach, Virginia, identified in the abandonment proceedings filed with the Surface 31 Transportation Board as Case No.: AB-290-293-X and extending from the 32 NorfolklVirginia Beach City Line at Newtown Road on the west to the terminus of the 33 abandoned rail line at Birdneck Road on the east. The Property is also described as 34 approximately station 256+19 eastward to approximate station 815+07 in the centerline 35 of what is shown on the Railroad Right of Way and Track Map as Seatack Road. 36 37 Section 2. That the City Manager is hereby authorized to make or cause to be 38 made on behalf of the City of Virginia Beach, to the extent that funds are available, a 39 reasonable offer to the owners or persons having an interest in said Property. If 40 refused, the City Attorney is hereby authorized and directed to institute proceedings to 41 condemn said Property. 42 43 Adopted by the Council of the City of Virginia Beach, Virginia, on the 11 th day 44 of DpC"pmhPT , 2007. CA 10540 R-1 \ \vbgov. com \dfs 1 \applications\citylawprod\cycom32\ W pdocs\D026\P002\00044267. DOC PREPARED: 11/26/07 I 'II APPROVED AS TO CONTENT: eElY C. d(;;ws "'- SLlC WORKS/REAL ESTATE APPROVED AS TO LEGAL SUFFICIENCY AND FORM: ~ ~ CITY Affo~y I III - 27- Item V.K.2. ORDINANCES ITEM 57158 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED: Ordinance to AUTHORIZE the acquisition, by agreement or condemnation, a portion of City property for rights-of way for the Indian River Road Phase VII project; the acquisition of temporary and permanent easements; and, AUTHORIZE the City Manager to EXECUTE all documents pertaining thereto. DISTRICT 1 - CENTERVILLE Voting: 10-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndor! John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: William R. "Bill" DeSteph December 11,2007 II 'II 1 AN ORDINANCE TO AUTHORIZE ACQUISITION OF 2 PROPERTY IN FEE SIMPLE FOR RIGHT-OF-WAY 3 FOR INDIAN RIVER ROAD PHASE VII PROJECT (CIP 4 2-256) AND THE ACQUISITION OF TEMPORARY 5 AND PERMANENT EASEMENTS, EITHER BY 6 AGREEMENT OR CONDEMNATION 8 9 10 WHEREAS, in the opinion of the Council of the City of Virginia Beach, Virginia, a public 11 necessity exists for the construction of this important roadway project to improve transportation 12 within the City and for other related public purposes for the preservation of the safety, health, 13 peace, good order, comfort, convenience, and for the welfare of the people in the City of Virginia 14 Beach. 15 16 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA 17 BEACH, VIRGINIA: 18 19 Section 1. That the City Council authorizes the acquisition by purchase or condemnation 20 pursuant to Sections 15.2-1901, et seQ., Sections 33.1-91, et seQ., and Title 25.1 of the Code of 21 Virginia of 1950, as amended, of all that certain real property in fee simple, including temporary 22 and permanent easements and entire tracts upon which such rights-of-way or easements shall be 23 located, within the limitations and conditions of Section 33.1-91 of the Code of Virginia of 1950, as 24 amended (the "Property"), as shown on the plans entitled "CIP 2-256 INDIAN RIVER ROAD - 25 PHASE VII," (the "Project") and more specifically described on the acquisition plats forthe Project 26 (plats and plans collectively referred to as the "Plans"), the Plans being on file in the Engineering 27 Division, Department of Public Works, City of Virginia Beach, Virginia. 29 30 Section 2. That the City Manager is hereby authorized to make or cause to be made on 31 behalf of the City of Virginia Beach, to the extent that funds are available, a reasonable offer to 32 the owners or persons having an interest in said Property. If refused, the City Attorney is hereby 33 authorized to institute proceedings to condemn said Property. 34 35 Adopted by the Council of the City of Virginia Beach, Virginia, on the 11 th day of 36 December , 2007. CAI0161 R-l V :\applications\citylawprod\cycom32\ WpdocslDO04\POO 1 \00030986.DOC PREPARED: 11/30/2007 II I I APPROVED AS TO CONTENT ~7JQ~ SIGNATURE ~IJ~~ DEPARTMENT APPROVED AS TO LEGAL SUFFICIENCY AND FORM 4;~, JZ CITY ATTO Y X:\Projects\CIP\Indian River Rd. VII 2-256\Council Package\Revised Public Hearing Package\00030986.DOC I, , I ~~,~~I;jt..C "i-,' ~~~ ~\' ~} ~ r~' ..,. h'::;'cw " ,:t;;, t' f) ~Q.;? - ~ ),M; '< ,,~ ~ ,\jf~.> , '?/j., / '. ,/ c: .~<1lI\;" ~',7 "',r<.~ Y\'"' <?,>l.:~~~ ',';;c;:,: _ >,: ....... ~~\ .? .(5~:J}^"'e\ '\....{j<>' ~~! ~\;, ...x i~ fj /(( :[Sr\ .8:):2?' /7 i.~/~. >ii:- .'~~~< ,,' ~:~~~ ~,':\ ,.;"",'S:'.. {~,~ "., .... "".,,?: QiI,! ',,0 ij~ ;(i~~~~~~M ,"d ~.~. ~ 81 ...",.,' .1'- .. :: "f, L>.:J': ' ., ..... "1"':~~- I', II ~I~ID ::,. ~) ::"il " ,:::\.\1', :'~ :..,I .; . ~~ ;....~',~. , ,,,:r'.'iL'W"" ~ ;.' jm!J~ ~:J. :mi~t,'}j ~'. \\!.~).:II'1'" 5t'.;{t;r:: ~~ B~':.' ~ . ~~\~l$ 1"., :q{~':l :~i~~:l . ~~#i'. ~l'~; .~ ";::" .'. .::', c... ',' :j;, '" ~\~nt ~1 :1,: c. ;~j;:l;i~;:j" :~\;~, f ":', 7 .{~, ! \:/ ~I~%~'i ;; ...,""JIIIi~ """ccc, ',',' ',,;,,' /'~ilj \) 'J .,' :fl .-' ii' l' ::.'....: ~t:'/ INplAN RIVER RD. PHASE Vii \'.;,;~,:"" "~::', >"!':\\;': ~):: n~' . /Z~'\~~~';bi WX'. Ai' >;: :"W' .\ '\ ,{:~il~;i;.. .'T,~L~ P'.. ":{"'~~~i?~, '" ,.~ f)'c:Y>rc ~}],':r'>/~ /';'~v/J;~',j <~. ';, ~ .'", '" Co (\\.t:~;i0"/t;,~'!>,{: ,~.. ~~~~)j"':""'''' /'\\',<';\(, ,"~>i).r' :('Qid), ", :) ,; ~' .'>, S ",;,,,,: Legend ~ Ci~Property - Indian River Road Phase VII ,', LOCATION MAP INDIAN RIVER ROAD PHASE VII PROJECT CIP 2-256 Scale: 1" = 2000' Prepared by PW./Eng.lEng. Support Services Bureau 11/3/06 X:\Projects\ARC Files\Agenda Maps\lndian River Rd\lndian River Rd. CIP 2-256.rm I, , I - 28 - Item v'K.3.a/b. ORDINANCES ITEM #57159 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED: Ordinances to A UTHORIZE the City Manager to EXECUTE Installment Purchase Agreements re Agricultural Land Preservation Easements (ARP): DISTRICT 7 - PRINCESS ANNE a. David L. and Teresa L. Winfree at 3521 Robinson Road a. Barry D. and Paula W. Knight at 3501 Baum Road Voting: 9-1 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor Meyera E. Oberndorl John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: Reba S. McClanan Council Members Absent: William R. "Bill" DeSteph December 11, 2007 I III 1 2 AN ORDINANCE AUTHORIZING THE ACQUISITION OF AN 3 AGRICULTURAL LAND PRESERVATION EASEMENT AND 4 THE ISSUANCE BY THE CITY OF ITS CONTRACT 5 OBLIGATIONS IN THE MAXIMUM PRINCIPAL AMOUNT OF 6 $1,201,743.00 (Property of David L. and Teresa L. Winfree). 7 8 9 WHEREAS, pursuant to the Agricultural Lands Preservation Ordinance (the 10 "Ordinance"), Appendix J of the Code of the City of Virginia Beach, there has been 11 presented to the City Council a request for approval of an Installment Purchase Agreement 12 (the form and standard provisions of which have been previously approved by the City 13 Council, a summary of the material terms of which is hereto attached, and a true copy of 14 which is on file in the City Attorney's Office) for the acquisition of the Development Rights 15 (as defined in the Installment Purchase Agreement) on certain property located in the City 16 and more fully described in Exhibit B of the Installment Purchase Agreement for a 17 purchase price of $1,201,743.00; and 18 19 WHEREAS, the aforesaid Development Rights shall be acquired through the 20 acquisition of a perpetual agricultural land preservation easement, as defined in, and in 21 compliance with, the requirements of the Ordinance; and 22 23 WHEREAS, the City Council has reviewed the proposed terms and conditions of the 24 purchase as evidenced by the Installment Purchase Agreement; 25 26 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF 27 VIRGINIA BEACH, VIRGINIA: 28 29 1. The City Council hereby determines and finds that the proposed terms and 30 conditions of the purchase of the Development Rights pursuant to the Installment Purchase 31 Agreement, including the purchase price and manner of payment, are fair and reasonable 32 and in furtherance of the purposes of the Ordinance, and the City Manager or his designee 33 is hereby authorized to approve, upon or before the execution and delivery of the 34 Installment Purchase Agreement, the rate of interest to accrue on the unpaid principal 35 balance of the purchase price set forth hereinabove as the greater of 4.207% per annum or 36 the per annum rate which is equal to the yield on United States Treasury STRIPS 37 purchased by the City to fund such unpaid principal balance; provided, however, that such 38 rate of interest shall not exceed 6.207% unless the approval of the City Council by 39 resolution duly adopted is first obtained. 40 41 2. The City Council hereby further determines that funding is available for the 42 acquisition of the Development Rights pursuant to the Installment Purchase Agreement on 43 the terms and conditions set forth therein. 44 3. The City Council hereby expressly approves the Installment Purchase 45 Agreement and, subject to the determination of the City Attorney that there are no defects 1 I I I 46 in title to the property or other restrictions or encumbrances thereon which may, in the 47 opinion of the City Attorney, adversely affect the City's interests, authorizes the City 48 Manager or his designee to execute and deliver the Installment Purchase Agreement in 49 substantially the same form and substance as approved hereby with such minor 50 modifications, insertions, completions or omissions which do not materially alter the 51 purchase price or manner of payment, as the City Manager or his designee shall approve. 52 The City Council further directs the City Clerk to affix the seal of the City to, and attest 53 same on, the Installment Purchase Agreement. The City Council expressly authorizes the 54 incurrence of the indebtedness represented by the issuance and delivery of the Installment 55 Purchase Agreement. 56 57 4. The City Council hereby elects to issue the indebtedness under the Charter 58 of the City rather than pursuant to the Public Finance Act of 1991 and hereby constitutes 59 the indebtedness a contractual obligation bearing the full faith and credit of the City. 60 61 Adoption requires an affirmative vote of a majority of all members of the City 62 Council. 63 64 Adopted by the Council of the City of Virginia Beach, Virginia, on this 11 th day of 65 D8C8mb8r ,2007. CA-10539 V\applications\citylawprod\cycom32\ Wpdocs\DO 19\P002\00043961 . DOC R-1 DATE: November 19, 2007 APP~VED A.S. TO CONTENT: ~1~ Agricultur epartment APPROVED AS TO LEGAL SUFFICIENCY: 1JvJ CERTIFIED AS TO AVAILABILITY OF FUNDS: ~') " \JiJ. -9A(~f iJ Director of Finance (lv)j~j~ 2 AGRICUL TURAL RESERVE PROGRAM INSTALLMENT PURCHASE AGREEMENT NO. 2007-81 SUMMARY OF MATERIAL TERMS SELLER: WINFREE, David L. and Teresa L. PROPERTY LOCATION: 3521 Robinson Road, Princess Anne District PURCHASE PRICE: $1,201,743.00 EASEMENT AREA: 85.23 acres, more or less DEVELOPMENT POTENTIAL: 3 single-family dwelling sites DURATION: Perpetual INTEREST RATE: Equal to yield on U.S. Treasury STRIPS acquired by City to fund purchase price, but not less than 4.207% (actual rate to be determined when STRIPS are purchased prior to execution of IPA). Rate may not exceed 6.207% without approval of City Council. TERMS: Interest only twice per year for 25 years, with payment of principal due 25 years from IP A date RESTRICTIONS ON TRANSFER: IP A ownership may not be transferred (except for Estate Settlement Transfer) for one (1) year following execution and delivery ofIPA. ~ ...- ;. QJ rIj Q.QJ = ;. ;. eJ ~ = QJ~ QJM cl=.n =~ .- I ~~ = = rIj = ~~ ~ 8 ~ == = .- =~ ~ = .- ~ ~ = ~ II III z 1 2 AN ORDINANCE AUTHORIZING THE ACQUISITION OF AN 3 AGRICULTURAL LAND PRESERVATION EASEMENT AND 4 THE ISSUANCE BY THE CITY OF ITS CONTRACT 5 OBLIGATIONS IN THE MAXIMUM PRINCIPAL AMOUNT OF 6 $881,870. (PROPERTY OF BARRY D. AND PAULA W. 7 KNIGHT) 8 9 10 WHEREAS, pursuant to the Agricultural Lands Preservation Ordinance (the 11 "Ordinance"), Appendix J of the Code of the City of Virginia Beach, there has been 12 presented to the City Council a request for approval of an Installment Purchase Agreement 13 (the form and standard provisions of which have been previously approved by the City 14 Council, a summary of the material terms of which is hereto attached, and a true copy of 15 which is on file in the City Attorney's Office) for the acquisition of the Development Rights 16 (as defined in the Installment Purchase Agreement) on certain property located in the City 17 and more fully described in Exhibit B of the Installment Purchase Agreement for a 18 purchase price of $881,870; and 19 20 WHEREAS, the aforesaid Development Rights shall be acquired through the 21 acquisition of a perpetual agricultural land preservation easement, as defined in, and in 22 compliance with, the requirements of the Ordinance; and 23 24 WHEREAS, the City Council has reviewed the proposed terms and conditions of the 25 purchase as evidenced by the Installment Purchase Agreement; 26 27 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF 28 VIRGINIA BEACH, VIRGINIA: 29 30 1. The City Council hereby determines and finds that the proposed terms and 31 conditions of the purchase of the Development Rights pursuant to the Installment Purchase 32 Agreement, including the purchase price and manner of payment, are fair and reasonable 33 and in furtherance of the purposes of the Ordinance, and the City Manager or his designee 34 is hereby authorized to approve, upon or before the execution and delivery of the 35 Installment Purchase Agreement, the rate of interest to accrue on the unpaid principal 36 balance of the purchase price set forth hereinabove as the greater of 4.0300% per annum 37 or the per annum rate which is equal to the yield on United States Treasury STRIPS 38 purchased by the City to fund such unpaid principal balance; provided, however, that such 39 rate of interest shall not exceed 6.0300% unless the approval of the City Council by 40 resolution duly adopted is first obtained. 41 42 2. The City Council hereby further determines that funding is available for the 43 acquisition of the Development Rights pursuant to the Installment Purchase Agreement on 44 the terms and conditions set forth therein. 45 I 'II 46 3. The City Council hereby expressly approves the Installment Purchase 47 Agreement and, subject to the determination of the City Attorney that there are no defects 48 in title to the property or other restrictions or encumbrances thereon which may, in the 49 opinion of the City Attorney, adversely affect the City's interests, authorizes the City 50 Manager or his designee to execute and deliver the Installment Purchase Agreement in 51 substantially the same form and substance as approved hereby with such minor 52 modifications, insertions, completions or omissions which do not materially alter the 53 purchase price or manner of payment, as the City Manager or his designee shall approve. 54 The City Council further directs the City Clerk to affix the seal of the City to, and attest 55 same on, the Installment Purchase Agreement. The City Council expressly authorizes the 56 incurrence ofthe indebtedness represented by the issuance and delivery of the Installment 57 Purchase Agreement. 58 59 4. The City Council hereby elects to issue the indebtedness under the Charter 60 of the City rather than pursuant to the Public Finance Act of 1991 and hereby constitutes 61 the indebtedness a contractual obligation bearing the full faith and credit of the City. 62 63 Adoption requires an affirmative vote of a majority of all members of the City 64 Council. 65 66 Adopted by the Council of the City of Virginia Beach, Virginia, on this 11 tl:1 day of 67 -kJ.€.g.em~-' 2007. CA 10538 V:lapplicalionslcilylawprodlcycom32IWpdocsID014IP002100043764. DOC R-1 DATE: November 27, 2007 APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: /riaAf/Uht!if5vJ City Attorney's Office CERTIFIED AS TO AVAILABILITY OF FUNDS: (~NU' ~~jjil Director of Finance 2 II , I AGRICUL TURAL RESERVE PROGRAM INSTALLMENT PURCHASE AGREEMENT NO. 2007-83 SUMMARY OF MATERIAL TERMS SELLER: KNIGHT, Barry D. and Paula W. PROPERTY LOCATION: 3501 Baum Road, Princess Anne District PURCHASE PRICE: $881,870 EASEMENT AREA: 145.2 acres, more or less DEVELOPMENT POTENTIAL: 14 single-family dwelling sites (12 acquired) DURATION: Perpetual INTEREST RATE: Equal to yield on U.S. Treasury STRIPS acquired by City to fund purchase price, but not less than 4.0300% (actual rate to be determined when STRIPS are purchased prior to execution of IPA). Rate may not exceed 6.0300% without approval of City Council. TERMS: Interest only twice per year for 25 years, with payment of principal due 25 years from IP A date RESTRICTIONS ON TRANSFER: IP A ownership may not be transferred (except for Estate Settlement Transfer) for one (1) year following execution and delivery ofIPA. II 'II ~ ....- .. QJ rIj Q.QJ Q .. .. ~ ~ ~ ....-= ~M eIJ · .. I/) =~ ~~ = I =~ ~ Q ~~ ~ S ~ = ~~ ..= .. ~ --~~---- ~ Il) ~ Il) "0 '1:: bJ) ~ Il) Il) "'" ..... ...... ..:.d ...... S I-< 0 ~ u ...... ..... Il) ...... Il) .g Il) = ~ =s! ~ g. iU -5 iUS I-< ~ ~ tfl "0 S 0.. " ~ iU Il) ~ o..O<+-<~=O~ <CMOU:'=~iU 3}f83d8S3Q:> JO An:> II 'II - 29- Item v'K4. ORDINANCES ITEM #57160 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED, AS REVISED: Ordinance to AMEND ~~ 24-465 to 24-468 of the City Code and ADD ~~ 24-469 to 24-477 re creating the Office of the City Auditor (City Council Appointee), effective February 16, 2008, and abolishing the Department of Audit Services. Voting: 10-0 (By Consent) Council Members Voting Aye: 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: William R. "Bill" DeSteph December 11, 2007 REVISED VERSION 1 AN ORDINANCE AMENDING CITY CODE SECTIONS 2- 2 465 TO 2-468 AND ADDING SECTIONS 2-469 TO 2-477 3 TO CREATE THE OFFICE OF THE CITY AUDITOR AND 4 TO ABOLISH THE DEPARTMENT OF AUDIT SERVICES 5 6 SECTIONS AMENDED: SS 2-465 TO 2-468 7 SECTIONS ADDED: SS 2-469 TO 2-477 8 WHEREAS, public officials, government managers and citizens want and need to 9 know not only whether government funds are handled properly and in compliance with 10 laws and regulations, but also whether public programs are achieving the purposes for 11 which they were authorized and funded, and, whether they are doing so efficiently and 12 economically; and 13 14 WHEREAS, an independent auditing function can provide objective information 15 on the operations of government programs, assist managers in carrying out their 16 responsibilities, and help ensure full accountability to the public; and 17 18 WHEREAS, Government Auditing Standards provide a framework for improved 19 government decision-making, oversight and accountability; and 20 21 WHEREAS, the independence and public accountability of the audit function can 22 be assured by provision of an appointed city auditor; and 23 24 WHEREAS, City Code Article XXVIII, sections 2-465 to 2-468 established a 25 department of Audit Services and assigned responsibilities, authority, and standards of 26 practices, and provided for access to records and property, the focus of which was to 27 provide guidance on audit-related matters to the city manager; and 28 29 WHEREAS, city council on April 3, 2007 endorsed the concept of converting the 30 city auditor to an appointee of the city council; and 31 32 WHEREAS, under this concept the city auditor would report directly to city 33 council but would work with an audit committee comprised of two councilmembers and 34 three citizens, one of whom is a certified public accountant and two of whom have 35 financial expertise; and 36 37 WHEREAS, City Charter S 3.05 vests the city council with the power to "create, 38 alter, or abolish departments . . . [and] offices" and "to provide for the number, titles, 39 qualifications, powers, duties and compensation of all officers and employees of the 40 city." 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 I' 'II NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: ARTICLE XXVIII. SERVICES DEPARTMENT OFFICE OF THE CITY AUDITORAUDIT Sec. 2-465. Creation; purpose; composition. (a) The office of the city auditor is hereby created, with such office to be filled by the appointment of a city auditor by a maiority vote of city council. who shall report to and serve as an at-will employee of the city council. The city auditor shall possess adequate professional proficiency for the iob and must be a licensed Certified Public Accountant. The city auditor's salary shall be set by the city council and reviewed annually. (b) The city auditor shall have the power to appoint, employ and remove, pursuant to budqet authorization, deputy and assistant auditors as deemed necessary for the efficient and effective administration of the affairs of the office and to prescribe their duties, scope of authority and qualifications. Deputy and assistant auditors employed on or after February 16, 2008 shall be appointed by the city auditor and serve at the pleasure of the city auditor. Deputy and assistant city auditors employed prior to February 16, 2008 shall retain their status as merit employees. Clerical and other support staff of the city auditor shall be merit employees. (a) There is hereby created a department of audit servicos 'Nhose purpose shall be to (i) conduct financial and performance audits of city programs, functions and activities, and (ii) provide advice and guidance on audit related matters to the city manager and all levels of agency management. The authority of the department to conduct such audits shall extend to all city departments and agencies, as well as programs and other entities, funded by the city budget process that are subject to control or supervision by the city manager or the council; this authority may be extended to political subdivisions that receive funding from the city, upon approval by the political subdivision. (b) The director of the department shall be designated the city auditor, and the department shall be staffed 'A'ith such other employees as may be prescribed by the charter, by ordinance, or by direction of the city manager consistent thorevJith. Sec. 2-466. Powers and duties; scope of audits. Responsibilities. The city auditor shall have authority to conduct financial and performance audits of departments, offices, boards, activities, aaencies, proarams and systems of the entity to independently and obiectively determine, dependinq on the scope and type of audit, whether: (a) Activities and proqrams beinq implemented have been authorized by aovernment charter or code, state law or applicable federal law or reaulations and are 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 I' ,II 89 90 91 92 93 94 95 beinq conducted and funds expended in compliance with applicable laws and requlations; (b) The department, office, or aqency is acquirinq, manaqinq, protectinq, and usinq its resources, includinq public funds, personnel, property, equipment, technoloqy and space, economically, efficiently, and effectively and in a manner consistent with the objectives intended by the authorizinq entity or enablinq leqislation; (c) The entity, proqrams, activities, functions, or policies are effective, includinq the identification of any causes of inefficiencies or uneconomical practices; (d) The desired result or benefits are beinq achieved; (e) Financial and other reports are beinq provided that disclose fairly, accurately, and fully all information required by law, to ascertain the nature and scope of proqrams and activities, and to establish a proper basis for evaluatinq the proqrams and activities includinq the collection of, accountinq for, and depositinq of, revenues and other resources; (f) Manaqement has established adequate operatinq and administrative procedures and practices, accountinq systems or internal control systems and internal manaqement controls; and (q) Indications of fraud, waste and abuse are valid and need further investiqation. The responsibilities of the department shall include the following: (a) Determining the adequacy and effectiveness of internal accounting systems and management controls, and reviewing established systems of internal controls to ensure compliance 'Nith city, state and federal policies, pl3ns, procedures, lalNs and regulations; (b) Reviewing city agencies and departments to determine whether resources, including public funds, personnel, property, equipment and space, arc being managed in an economical and efficient manner; (c) Revie'Ning the reliability and integrity of financial and management data; (d) /\scertaining the extent to 'Nhich city assets are accounted for and safeguarded; (e) Managing the contract for the external audit of the city's Comprehensive Annual Financial Report (CAFR) and related federal grants; and (f) Investigating complaints concerning the mismanagement of funds and/or resources and, if any such compl3int is found to be valid, determining the extent of loss and actions necessary to reduce risk. II , I 136 137 138 139 Sec. 2-467. Standards. Authority and standards of practico. 140 141 Audits shall be conducted in accordance with Government Auditinq Standards. 142 143 The city auditor shall report to, and be directed by, the city manager. 1\11 audits shall be 144 conducted in accordance with generally accepted government auditing standards. 145 Sec. 2-468. Access to employees, records and property. 146 147 (a) All officers and employees of the City of Virqinia Beach shall furnish to the 148 city auditor, or desiqnee, unrestricted access to employees, information and records 149 (includinq electronic data) within their custody reqardinq powers, duties, activities, 150 orqanization, property, financial transactions, contracts and methods of business 151 required to conduct an audit or otherwise perform audit duties. In addition, they shall 152 provide access for the city auditor or desiqnee to inspect all property, equipment and 153 facilities within their custody. 154 155 (b) All contracts with outside contractors shall contain a "riqht-to-audit" clause 156 and provide for city auditor access to the contractor's records relatinq to or pertaininq to 157 the contract, as well as property and equipment purchased in whole or in part with 158 qovernmental funds. 159 160 (c) Unless otherwise required by law, the city auditor shall not disclose any 161 confidential or proprietary information acquired durinq an audit. 162 163 (a) Unless otherwise prohibited by law, to assist the city auditor in conducting 164 audits, officers and employees of the city shall furnish the city auditor with all requested 165 public records (including electronic data) within their custody as may be necessary to 166 conduct an audit or other audit related duties, and shall also provide the city auditor 167 access to all public property, equipment and facilities under their control. Additionally, 168 in appropriate circumstances, city contracts shall contain a provision requiring the 169 contractor to provide the city auditor access to all financial and performance related 170 records pertaining to goods, services or construction provided or performed pursuant to 171 the contract. 172 173 (b) Unless otherwise required by la'.\I, the city auditor shall not disclose any 174 confidential or proprietary information acquired during an audit. 175 176 177 Sec. 2-469. Audit committee 178 179 (a) To ensure independence of the audit function, an audit committee is 180 hereby established. The audit committee shall consist of five (5) members: two (2) non- 181 votinq councilmembers and three (3) votinq citizen members, who shall be appointed by II , I 182 the council. At least one (1) of the citizen members shall be a licensed Certified Public 183 Accountant, and the other two (2) citizen-members shall have a backqround in finance, 184 accountinq, and/or auditinq. The appointments Sh311 be staggered for 3 period of three 185 ye3rs. Of those first appointed, one (1) member shall be appointed for a term of one (1) 186 year, one (1) for a term of two (2) years; one (1) for a term of three (3) years; and 187 thereafter all appointments shall be for a term of three (3) years. 188 189 (b) The audit committee shall consult with the city auditor reqardinq technical 190 issues and work to assure maximum coordination between work of the office of the city 191 auditor and external audit efforts. 192 193 (c) The audit committee shall meet as needed to perform its duties but shall 194 not meet less than three (3) times annually and shall be responsible for: 195 1) Reviewinq the city auditor's annual plan and budqet before submission to 196 council. 197 2) Reviewinq final audit reports before issuance; 198 3) Transmittinq audit reports to council; 199 4) Monitorinq follow-up on reported findinqs to assure corrective action is taken; 200 5) Reportinq to council on problems or problem areas at such times as deemed 201 appropriate; 202 6) Performinq an evaluation of the city auditor annually and reportinq the results 203 of the evaluation and effectiveness of the audit function to council; 204 7) Reviewinq reports of the external auditors; and, 205 8) Evaluatinq the findinqs and recommendations of the peer review of the audit 206 function as required by Government Auditinq Standards. 207 208 209 Sec. 2-470. Audit schedule. 210 211 (a) At the beqinninq of each fiscal year, the city auditor shall submit an annual 212 audit schedule to the audit committee for review and comment. The schedule shall 213 include the proposed plan, and the rationale for the selections, for auditinq 214 departments, offices, boards, activities, contractors and aqencies for the period. This 215 schedule may be amended after review with the audit committee, but the city auditor 216 shall have final authority to select the audits planned. City council shall be notified of 217 any amendments. 218 219 (b) City council may request an unscheduled audit dependinq upon newly 220 discovered facts, provided, however, that such request must be approved by a maiority 221 of the members of city council. 222 223 224 Sec. 2-471. Agency response. 225 226 A draft of the audit report will be forwarded to the audited aqency for review and 227 comment reqardinq factual content prior to its release. The aqency must respond to the 228 city auditor, in writinq, within 30 days specifyinq (i) aqreement with audit findinqs and II , I 229 recommendations or reasons for disaqreement with findinqs and/or recommendations; 230 (ii) plans for implementinq solutions to issues identified; (iii) a timetable to complete 231 such activities. The city auditor will include the aqency's response in the report. If no 232 response is received. the city auditor will note that fact in the transmittal letter and will 233 release the audit report. 234 235 236 Sec. 2-472. Audit reports. 237 238 Each audit will result in a report, written or in some other retrievable form. and be 239 prepared in accordance with Government Auditinq Standards. The report shall be 240 distributed to the audit committee. city council and manaqement, and it shall also be 241 available for public examination. 242 243 244 Sec. 2-473. Annual follow-up. 245 246 The city auditor shall follow-up on audit recommendations as practical to determine if 247 corrective action has been taken, and may request periodic status reports from audited 248 aqencies reqardinq actions taken to address reported deficiencies and audit 249 recommendations. 250 251 252 Sec. 2-474. Contracted auditors or other experts. 253 254 (a) The city auditor will coordinate and manaqe the audit contract of the City's 255 Comprehensive Annual Financial Report (CAFR) and related federal qrants. Council 256 must approve the selection of a certified public accountinq firm for the CAFR audit in 257 accordance with City Code & 8.06. 258 259 (b) Within budqet limitations. the city auditor may obtain the services of 260 certified public accountants or other professional experts necessary to perform audit 261 work. An audit that is performed by contract must be conducted by persons who have 262 no financial interests in the affairs of the qovernmental entity or its officers. 263 264 265 Sec. 2-475. Federal, state and other qrants. 266 267 City manaqement shall notify the city auditor of any scheduled audits, related issues or 268 violations of federal, state or local laws and requlations pertaininq to qrants. 269 Sec. 2-476. Fraud, waste or abuse. 270 271 (a) The office of the city auditor will oversee and coordinate all actions taken in a 272 preliminary investiqation of a suspected fraudulent activity. To the extent allowed by 273 law, the office of the city auditor shall review relevant information in a confidential 274 manner and shall conduct a prompt preliminary investiqation of the alleqed activity. If II , I 275 evidence indicates possible fraud, waste or abuse. a full investiqation shall follow 276 includinq coordination with appropriate law enforcement aqencies. A summary of 277 investiqative findinqs shall be communicated to the audit committee. 278 279 (b) In accordance with Virqinia Code ~ 2.2-3705.3(7), records of a completed 280 investiqation shall be disclosed upon request to any Virqinia citizen or member of the 281 media, unless such disclosure is prohibited by law. The information disclosed shall 282 include the name of the department or aqency involved. the nature of the complaint, the 283 job cateqory of the subject of the complaint, a summary of the investiqative procedures 284 and findinqs. and what actions. if any. were taken to resolve the complaint. If a person 285 is the subject of the complaint. the identity of that person shall only be disclosed if the 286 investiqation results in corrective action or the person consents to release of his or her 287 identity. "Corrective action" consists of suspension. demotion, or termination. An 288 investiqation shall be considered completed when all related investiqatory activities 289 have been concluded. With respect to an investiqation that leads to criminal charqes, 290 the investiqation shall be considered completed upon exhaustion of all appeals. The 291 identity of complainants or persons supplyinq information to investiqators shall not be 292 disclosed. 293 Sec. 2-477. Annual report. 294 295 The city auditor shall submit an annual report to council within 45 days after the fiscal 296 year indicatinq audits completed, major findinqs, and corrective actions taken. The effective date of this ordinance shall be February 16, 2008. 297 Adopted by the Council of the City of Virginia Beach, Virginia on the11 th 298 day of December , 2007. APPROVED AS TO LEGAL SUFFICIENCY: ;2?~.{ ~ City Attorney's Office CA 10495 December 11, 2007 R-10 II ,II - 30 - Item v,K. 5. ORDINANCES ITEM #57161 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED: Ordinance to AUTHORIZE the acceptance of a property dedication in fee simple on North Palm Avenue from SHOREHAVEN ASSOCIATES, L.L.c., re the Thalia Creek Greenway. DISTRICT 5 -LYNNHAVEN Voting: 10-0 (By Consent) Council Members Voting Aye: 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: William R. "Bill" DeSteph December 11, 2007 III 1 AN ORDINANCE TO AUTHORIZE THE ACCEPTANCE 2 OF A DEDICATION OF 8,400 SQUARE FEET OF 3 PROPERTY, IDENTIFIED AS GPIN 1477-84-3310, 4 LOCATED ON THE WEST SIDE OF NORTH PALM 5 AVENUE IN VIRGINIA BEACH, IN FEE SIMPLE FROM 6 SHOREHAVEN ASSOCIATES, L.L.C. 7 8 WHEREAS, Shorehaven Associates, L.L.C. ("Shorehaven") owns 8,400 square feet 9 of property, identified as GPIN 1477-84-3310, located on the west side of North Palm 10 Avenue in the planned Thalia Creek Greenway (the "Property"); 11 12 WHEREAS, Shorehaven has offered to dedicate the 8,400 square feet to the City of 13 Virginia Beach; 14 15 WHEREAS, the Department of Parks and Recreation has determined that the 16 Property is needed for public recreation purposes in connection with the planned Thalia 17 Creek Greenway trail project. 18 19 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 20 VIRGINIA BEACH, VIRGINIA: 21 22 1. That the City Council authorizes the acceptance of the dedication of 23 the Property by Shorehaven Associates, L.L.C. to the City of Virginia Beach by Deed of 24 Dedication pursuant to section 15.2-1800, Code of Virginia of 1950, as amended. 25 26 2. That the City Manager or his designee is authorized to execute all 27 documents that may be necessary or appropriate in connection with accepting the 28 dedication of the Property, so long as such documents are acceptable to the City Manager 29 and the City Attorney. 30 31 Adopted by the Council of the City of Virginia Beach, Virginia, on the 11 th day of 32 DecembQr ' 2007. CA-10543 v. lapplicationslcitylawprod\cycom3 2\ WpdocsID004\P002\000448 54. DOC R-1 PREPARED: December 4, 2007 APPROVED AS TO LEGAL SUFFICIENCY AND FORM /)jaA~ Ufu~ CITY ATT NEY r:.. v 'I. c...d (e, Y<' ",,-h..:" DEPARTMENT L,,-J.L ~1"1J1 ~~Ill ~OiP~[j'J DDEJPcDCJDGD o '-0 ~ o~ 0 c: c:::. c::1 LJ 0 ] o [] 0 CJ [J ODD CV Q CtJ D .. ...."" ... IY n..... '\ JoD c: 00 ~ 9 oQDDODp~ [? ~ L Drt ~ Dc2D~~g B 00 0 DCJI~ ~ ~ - . ., "Y UI.;;J "'\ :1 ,f-B ITDODP j?O mHJ- D'~ CJ I- ;; \j/ /' ~. rJ 1...-.-:..; -, N ^'v' Wl'v'd ~ EP~6D~\jJ ~~ D~ I.~ / "-- ... 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I o . X ~ :a; ~ z ...J ~ .. ::a: o ~ Zl!! ~ oc(W~ 03 1"'""__(") $1 :;:OZt? i OoW~ ~ -0>00 (!5 z C01<<:. <3 IO~~:E~! i= LLO W ;.... ~ Ie( ;(~:!: u u C:t:zPi ~ o Ww '-' ~ ..J W 0:: .~ Co ~ :t: x o 0:: o LL ::l (!5 ~ ::l IIJ (0') 2l '2; Q) (j) 't: o 8: o ::l o (j) N . 01 C Lb! 01 C I,!,! ~ Cl. >- .Z/ ~ lii l2. ~ Cl. II - 31 - Item V.K.6.a. ORDINANCES ITEM #57162 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED: Ordinance to AUTHORIZE a temporary encroachment into portions of City rights-ol-way: TOWN CENTER ASSOCIATES 7, L.L.C., at Commerce and Market Streets re the maintenance of the existing canopy and porte-cochere with signs DISTRICT 5 - LYNNHA VEN The following conditions shall be required: 1. The applicant shall not be permitted to make changes to the Temporary Encroachments without the prior written consent of the City, which consent can be withheld at the City's sole discretion. Any changes to the Temporary Encroachments shall be constructed (a) in a good and workmanlike manner and (b) in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach. 2. Nothing herein shall prohibit the City from immediately removing, or ordering the Applicant to remove, all or any part of the Temporary Encroachments from the Encroachment Area, in the event of an emergency or public necessity, and the applicant, to the extent of their respective interests therein, shall bear all costs and expenses of such removal. 3. The Temporary Encroachments shall terminate upon notice by the City to the applicant (the "Termination Notice''), and that within one hundred eighty (180) days after the notice is given, the Temporary Encroachments must be removed from the Encroachment Area by the applicant; and, the applicant will bear all costs and expenses of such removal, to the extent of their respective interests in the Temporary Encroachments. In the event that applicant fails to remove the Temporary Encroachments within such one hundred eighty (180) day period, then the City shall have the right to remove the Temporary Encroachments at the applicant's sole cost and expense, to the extent of their respective interests in the Temporary Encroachments. 4. The applicant, to the extent of their respective interests in the Temporary Encroachments, shall indemnify and hold harmless the City, its agents and employees, from and against all claims, damages, losses and expenses, including reasonable attorney's fees, arising out of the construction, location or existence of the Temporary Encroachments. 5. Nothing herein contained shall be construed to enlarge the permission and authority to permit the maintenance or construction of any encroachment other than the specified Temporary Encroachments and to the limited extent specified; however, in the event of a casualty or damage to or destruction of the Temporary Encroachments, provided the provisions of this Agreement are otherwise satisfied and provided that the City had not given the Termination Notice prior to such casualty or damage to or destruction of the Temporary Encroachments, the applicant shall be entitled to reconstruct the Temporary Encroachments in substantially the same locations and with substantially the same materials without the need for approval of a new Encroachment Agreement by the City Council, provided such reconstructed Temporary Encroachments shall be contained within the Encroachment Areas. December 11, 2007 II - 32 - Item v.K. 6. a. ORDINANCES ITEM #57162 (Continued) 6. The applicant agrees to maintain the Temporary Encroachments in good condition and repair so as not to become unsightly or hazardous. 7. The applicant must submit and have approved by all applicable authorities and jurisdictions a traffic control plan before commencing any work in the Encroachment Area. 8. No open cut of the public roadway will be allowed. Requests for exceptions must be submitted to the Highway Operations Division of the Public Works Departmentfor final approval. 9. Prior to issuance of a right-of-way/utility easement permit in addition to obtaining the City's written approval, which may be withheld at the City's sole discretion, the applicant must also post a bond or other security in the amount of two times the engineer's cost estimate, to the Planning Department to guard against damage to City property or facilities during any construction. 10. The applicant shall obtain and keep in force all risk property and general liability insurance or such insurance as is deemed necessary by the City, and all insurance policies must name the City as additional named insured or loss payee, as applicable. The applicant must also carry comprehensive general liability insurance in an amount not less than Five Hundred Thousand Dollars ($500,000), combined single limits of such insurance policy or policies. The applicant must provide endorsements providing at least thirty (30) days' written notice to the City prior to the cancellation or termination of, or material change to, any of the insurance policies. The applicant assumes all responsibilities and liabilities, vested or contingent, with relation to the temporary encroachment. 11. The applicant must submit a survey of the Encroachment Area for review and approval, certified by a registered professional engineer or a licensed land surveyor, and/or "as built" plans of the Temporary Encroachments sealed by a registered Professional Engineer, if required by either the City Engineer's Office or the Engineering Division of the Public Utilities Department. 12. The City, upon revocation of such authority and permission so granted, may remove the temporary encroachment and charge the cost thereof to the applicant and collect the cost in any manner provided by law for the collection of local or state taxes; may require the applicant to remove such temporary encroachment; and, pending such removal, the City may charge the applicant for the use of such portion of the City's right-of-way encroached upon the equivalent of what would be the real property tax upon the land so occupied if it were owned by the applicant; and if such removal shall not be made within the time specified by the City, the City shall impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that such temporary encroachment is allowed to continue thereafter,' and, shall collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. December 11, 2007 III - 33 - Item v'K6.a. ORDINANCES ITEM #57162 (Continued) Voting: 10-0 (By Consent) Council Members Voting Aye: 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: William R. "Bill" DeSteph December 11, 2007 II i I 1 Requested by Department of Public Works 2 3 AN ORDINANCE TO AUTHORIZE 4 TEMPORARY ENCROACHMENTS 5 INTO PORTIONS OF CITY RIGHTS.OF.. 6 WAY LOCATED AT COMMERCE 7 STREET AND MARKET STREET BY 8 TOWN CENTER ASSOCIATES 7, 9 L.L.C., A VIRGINIA LIMITED LIABILITY 10 COMPANY 11 12 WHEREAS, Town Center Associates 7, L.L.C., a Virginia limited liability 13 company, desires to maintain an existing canopy extending over Market Street, an 14 existing porte-cochere extending over Commerce Street and two (2) signs each on the 15 porte-cochere, in the City of Virginia Beach, Virginia. 16 17 WHEREAS, City Council is authorized pursuant to 99 15.2-2009 and 15.2-2107, 18 Code of Virginia, 1950, as amended, to authorize temporary encroachments upon the 19 City's rights-o~way subject to such terms and conditions as Council may prescribe. 20 21 NOW, THEREFORE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 22 VIRGINIA BEACH, VIRGINIA: 23 24 That pursuant to the authority and to the extent thereof contained in 99 15.2- 25 2009 and 15.2-2107, Code of Virginia, 1950, as amended, Town Center Associates 7, 26 L.L.C., a Virginia limited liability company, its assigns and successors in title are 27 authorized to maintain (i) the existing canopy extending over Market Street in the City 28 right-of-way as shown on the map marked Exhibit "A-1" and entitled: "EXHIBIT A-1 29 PLAT SHOWING CANOPY ENCROACHMENT OVER MARKET STREET RIGHT-OF- 30 WAY," and (ii) the existing porte-cochere extending over Market Street, and two (2) 31 signs on top of the porte-cochere in City right-of-way as shown on the map marked 32 Exhibit "A-1" and entitled: "EXHIBIT A-2 PLAT SHOWING CANOPY AND SIGN 33 ENCROACHMENT OVER COMMERCE STREET RIGHT-OF-WAY" copies of which 34 are on file in the Department of Public Works and to which reference is made for a more 35 particular description; and 36 37 BE IT FURTHER ORDAINED, that the temporary encroachments are expressly 38 subject to those terms, cowlitions and criteria contained in the Agreement between the 39 City of Virginia Beach and Town Center Associates 7, L.L.C., a Virginia limited liability 40 company, (the "Agreement"), which is attached hereto as Exhibit B and incorporated by 41 reference; and 42 43 BE IT FURTHER ORDAINED, that the City Manager or his authorized designee 44 is hereby authorized to execute the Agreement; and 45 BE IT FURTHER ORDAINED, that this Ordinance shall not be in effect until such 46 time as Town Center Associates 7, L.L.C., a Virginia limited liability company, and the 47 City Manager or his authorized designee execute the Agreement. 48 49 Adopted by the Council of the City of Virginia Beach, Virginia, on the 50 11 th day of December ,2007. CA10541 PREPARED: 11/30/07 v :\applications\citylawprod\cycom32\ Wpdocs\D029\P003\00044641.DOC R-1 PROVED AS TO CONTENTS C. ~ BLlC WORKS, REAL ESTATE CITY ATTORNEY 0.60' FACE OF BUILOINC CANOPY .3.10' 2.50' " ENCR. 3.10' 0.60' FACE OF BUILOINC COlUMBUS STREET (VARIABLE wom R/W) (lNSlR. Na 200312220213,]24) (MB IIJ9. pr; 50 (MB IIJ8. pr; IIJ) OVERHEAD VIEW SCALE: 1" = 30' ;.... It) cO IX) 2.50' EN CR. ~ ~ ~~~ " ::,.. 5 ~~~~ ~~~~ W ~~l:I\i ~~~ ~~CC L\iiI ~ ~ let ~ ~l:I\i Ctj ~~~ " ~ ~~ ~~t;; ~li:~ ~ , R.O.W. 0.60' IN 2.50' ENCROACHMENT I ... .... _ 0.37' 0.37' I ~ ::-':':'o:":':":"::":'::":":':":":':":":~":":':":":': ,,:':":-':~' - 3.10' CANOPY >- D- o z t3 ~ io 4. CS r: 0 ~ IX) I- ~ ~ ~ i:ij :r: ~ ~ SIOEWALK CANOPY DETAil NOT TO SCALE ~~ <~ z~_ -coco ~ I') oc~ 0<10 oz.- ""0 ww'" zzo :Soi'ii l1.No ~i=~ ~:;:) . (I)&5~ <C . . -~I-' zj:!:!(I) B(f)z a:: >- .::::;. >cn lVISA.. P.C. ENVIRONMENTAL SCIENCES 'GEOSCIENCES PLANNING · SURVEYING 'ENGINEERING · LANDSCAPE ARCHllEClURE 5033 ROUSE DRIVE, VIRGINIA BEACH, VA 23462 757-490-9264 (OFC) 7:57-490-0634 (FAX) www.msaonhne.com PROJ. NO.: 99161T DRAWN: KCR DATE: 11-06-2007 SCALE: AS SHOWN EXHIBIT A-I PLAT SHOWING CANOPY ENCROACHMENT OVER MARKET STREET RIGHT-OF-WAY VIRGINIA BEACH VIRGINIA I II I I I I I I I I i i I I I ! I I ! I ! R.O.W. ~'CO <co z'_ -~co ~co~ OC~ o<co uz_ .......0 U1W- ZZO <0- ...IN II) a.. 0 ~F~ ~::> . (1)00 (l)Z < . . -:ll- ZW(I) C31-~ !!: ~....... >(1) FACE OF BUILO/NC OVERHEAD VIEW SCALE: 1" = 30' R.O.W. PORTE COCHERE k! ~~ \.3:::::; ~~ \j\j II , I 160.25' ~ ~ .. ~ ~ ~ ~~ ~~~~ " ~ ~ l'\j ltj ~~~ Q-: '5 ss ll')' ~ ~ l'\j Vj ~~~ " ~ ~~ ~ ~~ ~ ~~ ~ ~ ~ ~~ C:5 ~::::! l(~ . p ::::::::::::{7/::::::::::::::::::::::::::::..::.:::": ::::::::::::::::::::::::::.~r:~.~~.::::::::S:::::::::: :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: :J~ "" t '. ........................ . .' . .' . .' . .' . . . . .' . .' . .' . .'. . 2 50' 3 00" .' . .' . .' ...1....: ~ '0" ...... .,. . .,.......... ow............................................. 0" x. .......... ".1'-"- ,...; I"':' .r....: 2.50 x3.00 ..:....:. :..........,' P"O'RT' E' ...... '. SIGN...................:....:. .:. .:.'J "" "" .... . .... S"'GN" .... .... .... ...... .... ......... ...... ..'...... ......................... .'.1 r" .'. ................... ..........COCHERE..... ....................... "'1 r :,,:,:,,:,,:,:,:,,:,:,:,,:,:,,:,,:,:,,:,,:,:,,:,,:':'.:":': .:.:..:..:.:..:..:.:.,......................... :',:,,:':": :.: .::":":':":":':":":':":":':":":':',:,,:':":'.: J 87.68' b .............................................................. ................ o ~20.26' d 20.05' lO ENCROACH- ~ MENT ~ SIDEWALK ~ CONCRETE COLUMN (TYP) SIDEWALK SIDE VIEW SCALE: 1" = 20' REV. 11-30-2007 KCR CITY COMMENTS EXHIBIT A-2 PLAT SHOWING PORTE COCHERE AND SIGN ENCROACHMENT OVER COMMERCE STREET RIGHT-OF-WAY VIRGINIA BEACH VIRGINIA FRONT VIEW SCALE: 1" = 20' lO O~li! ~ I- 0::: ~ r....: IOU ~ ~a..o ~ u PORTE COCHERE SHEET 1 OF 1 l\I.[SA.. P .c. ENVIRONMENTAL SCIENCES · GEOSCIENCES PLANNING · SURVEYING · ENGINEERING · LANDSCAPE ARCHITECTURE 5033 ROUSE DRIVE, VIRGINIA BEACH, VA 23462 757-490-9264 (OFC) 7.57-490-0634 (FAX) www.msaonllne.com PROJ. NO.: 99161T DRAWN: KCR DATE: 11-06-2007 SCALE:AS SHOWN I i I PREPARED BY VIRGINIA BEACH CITY A TIORNEY'S OFFICE EXEMPTED FROM RECORDATION TAXES UNDER SECTION 58.1-811(C) (4) THIS AGREEMENT (this "Agreement"), made this day of December, 2007, by and between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation of the Commonwealth of Virginia, "Grantor", "City"; and TOWN CENTER ASSOCIATES 7, L.L.C" a Virginia limited liability company ("TCA 7"), TCA BLOCK 7 HOTEL, L.L.C" a Virginia limited liability company ("TCA 7 Hotel"), TCA BLOCK 7 RESIDENTIAL, L.L.C" a Virginia limited liability company ("TCA 7 Residential"), TOWN CENTER CONDOMINIUM 7 OWNERS ASSOCIATION, INC., a Virginia corporation (the "Master Association"), and TOWN CENTER RESIDENTIAL CONDOMINIUM 7 OWNERS ASSOCIATION, INC" a Virginia corporation (the "Residential Association"), "Grantee", even though more than one, WIT N E SSE T H: That, WHEREAS, the TCA 7 is the owner of the "Parking Unit", TCA 7 Hotel is the owner of the "Hotel Unit", and TCA 7 Residential is the owner of the "Residential Unit", all created under that certain Declaration of Condominium of Town Center Condominium 7 dated June 1, 2006, recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia (the "Clerk's Office"), as Instrument No. 20060620000928680 and related instruments, as amended by that certain First Amendment dated November 29,2007, recorded in the Clerk's Office as Instrument No. 20071129001591250 (as same may be further amended from time to time, the "Master Condominium Instruments"), pursuant to which a condominium known as "Town Center GPIN: 1477-44-7510-1000 (Parking Unit) 1477-44-7510-3000 (Hotel Unit) 1477-44-7510-4000 (Residential Unit) (CITY RIGHT OF WAY - NO GPIN REQUIRED OR ASSIGNED) II i I Condominium 7" and having an address of 4545 Commerce Street, Virginia Beach, Virginia, 23462 (the "Master Condominium") was created (collectively, the "Grantee Property"); WHEREAS, the Master Association is a condominium owner's association which has been formed to perform certain administrative and operational functions on behalf of the Master Condominium and which is empowered to execute agreements for services for the Master Condominium; WHEREAS, TCA 7 Residential has established within the Residential Unit a condominium regime pursuant to that certain Declaration of Condominium of Town Center Residential Condominium 7 dated November 21, 2007, recorded in the Clerk's Office as Instrument No. 20071129001591280 and related instruments (as same may be amended from time to time, the "Residential Condominium Instruments"); WHEREAS, the Master Association is a condominium owner's association which has been formed to perform certain administrative and operational functions on behalf of the Master Condominium and which is empowered to execute agreements for services for the Master Condominium; WHEREAS, the Residential Association is a condominium owner's association which has been formed to perform certain administrative and operational functions on behalf of the Residential Condominium and which is empowered to execute agreements for services for the Residential Condominium; WHEREAS, TCA 7 has constructed the condominium building (the "Building") that includes certain structures which extend beyond the boundaries of the Grantee Property and encroach onto property owned by City being the rights-of-way for Market Street and Commerce Street (all areas on which the Temporary Encroachments (as 2 I 'II defined below) exist shall be collectively referred to herein as the "Encroachment Area"), which encroachments consist solely of the following: 1 . 1 . a canopy encroachment (the "Canopy"), the location of which is on the Market Street side of the Building and more particularly shown as "CANOPY" on Exhibit A-1 attached hereto; 2, a porte-cochere encroachment (the "Porte-Cochere"), the location of which is on the Commerce Street side of the Building and more particularly shown as "PORTE-COCHERE" on Exhibit A-2 attached hereto; 3. a sign ("Sign 1 "), the location of which is on top of the eastern end of the Porte-Cochere and more particularly shown as "2.50 X 3.0 SIGN" on Exhibit A-2 attached hereto; and 4. a sign ("Sign 2"), the location of which is on top of the western end of the Porte-Cochere and more particularly shown as "SIGN" on Exhibit A-2 attached hereto. The Porte-Cochere, the Canopy, Sign 1 and Sign 2 are collectively referred to herein as the "Temporary Encroachments". WHEREAS, Grantee desires, and the City has agreed to permit Grantee, to temporarily retain the Temporary Encroachments in their respective areas on the Encroachment Area subject to terms of this Agreement; NOW, THEREFORE, for and in consideration of the premises and of the benefits accruing or to accrue to the Grantee and for the further consideration of One Dollar ($1,00), in hand paid to the City, receipt of which is hereby acknowledged, the City 3 II 'II hereby grants to the Grantee, to the extent of their respective interests in the Temporary Encroachments, temporary permission to retain and use the Temporary Encroachments in their present "AS-IS" conditions and locations, Grantee shall not be permitted to make changes to the Temporary Encroachments without the prior written consent of City, which consent can be withheld at City's sole discretion, Any changes to the Temporary Encroachments shall be constructed (a) in a good and workmanlike manner and (b) in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach. Nothing herein shall prohibit the City from immediately removing, or ordering the Grantee to remove, all or any part of the Temporary Encroachments from the Encroachment Area, in the event of an emergency or public necessity, and Grantee, to the extent of their respective interests therein, shall bear all costs and expenses of such removal. It is further expressly understood and agreed that the Temporary Encroachments herein authorized shall terminate upon notice by the City to the Grantee (the "Termination Notice"), and that within one hundred eighty (180) days after the notice is given, the Temporary Encroachments must be removed from the Encroachment Area by the Grantee; and that the Grantee will bear all costs and expenses of such removal, to the extent of their respective interests in the Temporary Encroachments. In the event that Grantee fails to remove the Temporary Encroachments within such one hundred eighty (180) day period, then City shall have the right to remove the Temporary Encroachments at Grantee's sole cost and expense, to the extent of their respective interests in the Temporary Encroachments. 4 II . I It is further expressly understood and agreed that the Grantee, to the extent of their respective interests in the Temporary Encroachments, shall indemnify and hold harmless the City, its agents and employees, from and against all claims, damages, losses and expenses, including reasonable attorney's fees, arising out of the construction, location or existence of the Temporary Encroachments, It is further expressly understood and agreed that nothing herein contained shall be construed to enlarge the permission and authority to permit the maintenance or construction of any encroachment other than the Temporary Encroachments specified herein and to the limited extent specified herein; provided, however, in the event of a casualty or damage to or destruction of the Temporary Encroachments, and provided the provisions of this Agreement are otherwise satisfied and the City had not given the Termination Notice prior to such casualty or damage to or destruction of the Temporary Encroachments, the Grantee shall be entitled to reconstruct the Temporary Encroachments pursuant to this Agreement in substantially the same locations and with substantially the same materials without the need for approval by the City Council of the City of a new Encroachment Agreement, provided such reconstructed Temporary Encroachments shall be contained within the Encroachment Areas, It is further expressly understood and agreed that the Grantee agrees to maintain the Temporary Encroachments in good condition and repair. The Temporary Encroachments shall not become unsightly or hazardous. It is further expressly understood and agreed that the Grantee must submit and have approved (by all applicable authorities and jurisdictions) a traffic control plan before commencing any work in the Encroachment Area. 5 I . I It is further expressly understood and agreed that the Grantee agrees that no open cut of the public roadway will be allowed, Requests for exceptions must be submitted to the Highway Operations Division, Department of Public Works, for final approval. It is further expressly understood and agreed that prior to issuance of a right of way/utility easement permit, in addition to obtaining City's written approval (which approval may be withheld at City's sole discretion), the Grantee must also post a bond or other security, in the amount of two times their engineer's cost estimate, to the Office of Planning Department to guard against damage to City property or facilities during any construction, It is further expressly understood and agreed that the Grantee must obtain and keep in force all-risk property insurance and general liability or such insurance as is deemed necessary by the City for the Temporary Encroachments, and all insurance policies must name the City as additional named insured or loss payee, as applicable. The Grantee also agrees to carry comprehensive general liability insurance in an amount not less than $500,000,00, combined single limits of such insurance policy or policies covering the Temporary Encroachments, The Grantee will provide endorsements providing at least thirty (30) days written notice to the City prior to the cancellation or termination of, or material change to, any of such insurance policies. The Grantee, to the extent of their respective interests in the Temporary Encroachments, assumes all responsibilities and liabilities, vested or contingent, with relation to the construction, location, and/or existence of the Temporary Encroachments. 6 II I It is further expressly understood and agreed that the Grantee must submit for review and approval, a survey of the Encroachment Area, certified by a registered professional engineer or a licensed land surveyor, and/or "as built" plans of the Temporary Encroachments sealed by a registered professional engineer, if required by either the City Engineer's Office or the Engineering Division of the Public Utilities Department. It is further expressly understood and agreed that the City, upon revocation of such authority and permission so granted, may remove the Temporary Encroachments and charge the cost thereof to the Grantee, and collect the cost in any manner provided by law for the collection of local or state taxes; may require the Grantee to remove the Temporary Encroachments; and pending such removal, the City may charge the Grantee for the use of the Encroachment Area, the equivalent of what would be the real property tax upon the land so occupied if it were owned by the Grantee; and if such removal shall not be made within the time ordered hereinabove by this Agreement, the City may impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that the Temporary Encroachments are allowed to continue thereafter, and may collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. The Master Association and the Residential Association execute this Agreement for the purposes of acknowledging its requirements and, to the extent they have, or either of them has or may have, any obligations hereunder pursuant to the Master Condominium Instruments or the Residential Condominium Instruments, accepting responsibility for same. 7 I, ,II The provisions of this Agreement shall be binding upon the Grantee and the respective successors and assigns of the Grantee. Upon transfer of title to the Parking Unit, the Hotel Unit and/or the Residential Unit (each, a "Unit"), the rights and obligations of the owner(s) of a Unit hereunder shall transfer automatically to the transferee of such Unit, and the transferor of such Unit shall be released from all liability arising from facts or circumstances arising after the date of recordation of the deed transferring such Unit. IN WITNESS WHEREOF, each Grantee has caused this Agreement to be executed on its behalf by a duly authorized representative, with due authority to bind said limited liability company. Further, that the City of Virginia has caused this agreement to be executed in its name and on its behalf by its City Manager and its seal be hereunto affixed and attested by its City Clerk. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] 8 CITY OF VIRGINIA BEACH By City Manager/Authorized Designee of the City Manager STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this day of , CITY MANAGER/AUTHORIZED , 2007, by DESIGNEE OF THE CITY MANAGER. Notary Public Notary Registration Number: My Commission Expires: (SEAL) ATTEST: City Clerk STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this day of , 2007, by RUTH HODGES FRASER, City Clerk for the CITY OF VIRGINIA BEACH. Notary Public Notary Registration Number: My Commission Expires: 9 . I TOWN CENTER ASSOCIATES 7, L.L.C., a Virginia limited liability company By: Louis S. Haddad, Manager By: Anthony P. Nero, Manager STATE OF CITY/COUNTY OF , to-wit: The foregoing instrument was acknowledged before me this day of , 2007, by Louis S. Haddad, Manager on behalf of Town Center Associates 7, L.L.C., a Virginia limited liability company. Notary Public Notary Registration Number: My Commission Expires: STATE OF CITY/COUNTY OF , to-wit: The foregoing instrument was acknowledged before me this day of , 2007, by Anthony P. Nero, Manager on behalf of Town Center Associates 7, L.L.C" a Virginia limited liability company. Notary Public Notary Registration Number: My Commission Expires: 10 TCA BLOCK 7 HOTEL, L.L.C., a Virginia limited liability company By: Louis S, Haddad, Manager By: Anthony P. Nero, Manager STATE OF CITY/COUNTY OF , to-wit: The foregoing instrument was acknowledged before me this day of ,2007, by Louis S. Haddad, Manager on behalf of TCA Block 7 Hotel, L.L.C" a Virginia limited liability company. Notary Public Notary Registration Number: My Commission Expires: STATE OF CITY/COUNTY OF , to-wit: The foregoing instrument was acknowledged before me this day of ,2007, by Anthony p, Nero, Manager on behalf of TCA Block 7 Hotel, L.L.C., a Virginia limited liability company. Notary Public Notary Registration Number: My Commission Expires: 11 11II TCA BLOCK 7 RESIDENTIAL, L.L.C., a Virginia limited liability company By: louis S. Haddad, Manager By: Anthony P. Nero, Manager STATE OF CITY/COUNTY OF , to-wit: The foregoing instrument was acknowledged before me this day of , 2007, by louis S. Haddad, Manager on behalf of TCA Block 7 Residential, L.L.C., a Virginia limited liability company. Notary Public Notary Registration Number: My Commission Expires: STATE OF CITY/COUNTY OF , to-wit: The foregoing instrument was acknowledged before me this day of , 2007, by Anthony p, Nero, Manager on behalf of TCA Block 7 Residential, L.L.C., a Virginia limited liability company. Notary Public Notary Registration Number: My Commission Expires: 12 I ill TOWN CENTER CONDOMINIUM 7 OWNERS ASSOCIATION, INC., a Virginia corporation By: Louis S. Haddad, President STATE OF CITY/COUNTY OF , to-wit: The foregoing instrument was acknowledged before me this day of , 2007, by Louis S. Haddad, Manager on behalf of Town Center Condominium 7 Owners Association, Inc" a Virginia corporation. Notary Public Notary Registration Number: My Commission Expires: 13 III TOWN CENTER CONDOMINIUM 7 ASSOCIATION, INC., corporation RESIDENTIAL OWNERS a Virginia By: Louis S, Haddad, President STATE OF CITY/COUNTY OF , to-wit: The foregoing instrument was acknowledged before me this day of , 2007, by Louis S. Haddad, Manager on behalf of Town Center Residential Condominium 7 Owners Association, Inc" a Virginia corporation. Notary Public Notary Registration Number: My Commission Expires: APPROVED AS TO CONTENTS APPROVED AS TO LEGAL SUFFICIENCY AND FORM SIGNATURE DEPARTMENT 5553\015\Encroachment Agreement - rdl (11-30-07).DOC 14 III L:'-........--",_ "'~._~ ~,...,-_'" ~'" ~L '~,ry.'(;~,'~,':f<F/;:~:"S':";,('S-,.,".i,":Y'" -;:> . , -" ~ "i'", ',::'i";:;,~,<'/,,,;;,, ,,,;, ot;' >, .. Y,::,:"--'>"! ...if.' --".~.. 4i: .#," .r . / ";: ~ ~:~~'#i;~;'::::;,''2;-:'_",__M'"'''H", !i ,~' ~-'~ .......~,. . ~,,~,. " C ..t __,~ ,,;,-"::;~7';-'''';~ r:~~ .i/ ';.1;;',1,1 ': ':"::;.....,:':r:~~~';"~:'~\j>:" :.:~:~:.':'~~ '~"";:- 'v*' . .~ 1'.~~~.,L~:' , ,\: .. . ',' . ,,;,,{\!I , "u::' ~ ~... \ }'#';": _ "J'I I I ,\t . . .,,'1i,f"}. If'l: J.J ,/;. ,J,t'tij,f/,~ Oc ,', 'j, / ' > ' "J , f / ,- ! J,~ j .. 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E ~l. ::> C/)UJ 0 0 ~ o o~ (ll ~ ~ ~ ~~ 1l ~ .....g:o; ~i z z C/) .! ~ ~ ~ ~ ~ ~!;t fi~ q:Ia:::~~ ~ o ~ w .5 z ~ 9 0 I-z .! ~ ~.~. a::: UJ .5 v >: Uu Ol ~~~ o I- :!: U ~ l:::t ~oo ~ lE .uo< J-J V'" ) = = C"") II .,... ......-, I w -..:;=- ...l - ct fi!(J U ~<S-18:3j.__. N3d3 r.n ----r=== o Ji ( ~~ c::> eel N ,~ ,- ,- ~ --! ...J I"- (I) Q) ...... ro '0 o (I) (I) <( ::l ,ll ~~ ::l CD ,n ,)) .:J > ,j) (IJ rr . 1 =-,.,., Il ' _ """':::::7!11' ".' ...~t:t/~ "; ;".',1 ~~. . ..\ ~~ : '.'....~ \'" ,,')~ ~" I ",,< '. .'1' ;aFi~;r' ",: . \,<,: In'.. .> ..' /' ; l~J. c. 'C/' ".: -'''''1rJ", . '.',' ,~ .,' .::1 "."1. i ....:,\."l. :~ ~~ ~~ o [1 0\ ,I) ~ ~ c:= 1 n a.~ ~" ~fl-:~?B~ 87 ~ )~~~ 0 0) .- /._.V"" ~ r8 ~ 4) ~~ \ r I I I [l]l] lIr. ....I t: o CL Q.. =1 co €' w Q) ...... 0.. C o Q) Cll ..... U c: [L C !~I ~ s: <~ a ~ II :=- ~ i ~ 0... Cll c: UJ - 34 - Item v'K.6.b. ORDINANCES ITEM #57163 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council DEFERRED until the City Council Session of January 22, 2008: Ordinance to A UTHORIZE temporary encroachments into portions of City rights-ofway: EARL L. and MARO A. ROYER at 1460 Watersedge Drive re the maintenance of existing brick columns, electrical conduits, brick column mailbox and the construction and maintenance of six (6) additional brick columns DISTRICT 5 - LYNNHA VEN The City Manager shall instruct Public Works to send a letter to all the adjacent property owners notifying them of the proffered encroachment. Voting: 10-0 (By Consent) Council Members Voting Aye: 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: William R. "Bill" DeSteph December 11, 2007 I ill - 35 - Item v.K. 7.a/hle. ORDINANCES ITEM #57164 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED: Ordinance re the Community Oriented Policing Services (COPS) Interoperable Communications Grant re funding regional communication equipment and installation: CREATE the COPS Interoperable Communications Technology Grant - Phase II Capital Improvement Project ACCEPT and APPROPRIATE $3,000,000 from the u.s. Department of Justice, with revenue from the federal government increased accordingly APPROPRIATE $300,000 from the City of Norfolk, $300,000 from the City of Hampton and $200,000 from the City of Portsmouth, with revenue from the local governments increased accordingly Voting: 10-0 (By Consent) Council Members Voting Aye: 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: William R. "Bill" DeSteph December 11, 2007 1 AN ORDINANCE TO CREATE CIP 3-124 AND 2 APPROPRIATE $4,139,100 FROM THE COMMUNITY 3 ORIENTED POLICING SERVICES (COPS) 4 INTEROPERABLE COMMUNICATIONS TECHNOLOGY 5 GRANT FOR PROCURING SERVICES AND EQUIPMENT 6 NECESSARY IN THE IMPLEMENTATION OF THE 7 HAMPTON ROADS OVERLAY REGIONAL 8 INTEROPERABILlTY NElWORK (ORION) PHASE II 9 10 WHEREAS, the U.S. Department of Justice has allocated an Interoperable 11 Communications Technology Grant to the City of Virginia Beach for supporting regional 12 efforts to provide for Phase II equipment supporting the regional communication 13 network. 14 15 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 16 VIRGINIA BEACH, VIRGINIA: 17 18 1. That Capital Project # 3-124, COPS Interoperable Communications 19 Technology Grant - Phase II, is hereby established in the Capital Improvement Program 20 for the purpose of funding regional communication equipment and installation. 21 22 2. That $3,000,000 is hereby accepted from the U.S. Department of Justice 23 and appropriated to Capital Project # 3-124, COPS Interoperable Communications 24 Technology Grant - Phase II, in the FY 2007-08 Capital Budget, with revenue from the 25 federal government increased accordingly. 26 27 3. That $339,100 is hereby appropriated from the fund balance of E-911 28 Communications Special Revenue Fund to Capital Project # 3-124, COPS Interoperable 29 Communications Technology Grant - Phase II, to provide the required match funds. 30 31 4. That $300,000 from the City of Norfolk, $300,000 from the City of 32 Hampton, and $200,000 from the City of Portsmouth is hereby accepted and 33 appropriated to CIP #3-124, COPS Interoperable Communications Technology Grant - 34 Phase II, with revenue from the local governments increased according. Adopted by the Council of the City of Virginia Beach, Virginia, on the 11 th day of Opt"'pmher ' 2007. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: J)~11. " CA 10591 R-2 November 20,2007 : I ,II U. S. Department of Justice Community Oriented Policing Services Grants Administration Division (GAD) Law Enforcement TechnololIT Grant #: 2007CKWX0056 OR! #: V A 12800 Applicant Organization's Legal Name: Virginia Beach, City of OJP Vendor #: 540722061 Law Enforcement Executive: Chief of Police Alfred M. Jacocks Address: 2401 Courthouse Drive Building II City. State, Zip Code. Virginia Beach. V A 23456 Telephone: (757) 385-4141 Fax: Government Executive: City Manager James K. Spore Address: 2401 Courthouse Drive Building I City, State, Zip Code: Virginia Beach. V A 23456 Telephone: (757) 385-4242 Fax: A ward Start Date: 91\/2007 $ 6,000,000.00 Award End Date: 8/31/2010 AUG 3 1 2007 Carl R. Peed, Director Date ghiAtf of Poiice Alfred M. Jacock;;s /rJ?'07 Typed Name and Title of Law Enforcement Date Official ~t, ~ City Manager James K. Spore Typed Name and Title of Govemment Official -!d~ 0\ the Authority to False statements or claims made in connection with COPS grants may result in fines, imprisonment, debarment from participating in federal grants or contracts, and/or any remedy available by law to the Federal Government. Award 10: 84739 - 36 - Item v'K8.a/blc. ORDINANCES ITEM #57165 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED: Ordinance re Operation Smile Headquarters and Tidewater Community College expansion: RENAME the Tidewater Community College expansion project to the Tidewater Community College Expansion/Operation Smile Headquarters project TRANSFER $3,500,000 from Various Site Acquisitions project to Tidewater Community College Expansion/Operation Smile Headquarters project AUTHORIZE the City Manager to EXECUTE the Term Sheet with Operation Smile Voting: 10-0 (By Consent) Council Members Voting Aye: 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: William R. "Bill" DeSteph December 11, 2007 1 AN ORDINANCE TO TRANSFER $3,500,000 FROM 2 CAPITAL PROJECT #3-368 VARIOUS SITE ACQUISITIONS 3 TO CAPITAL PROJECT #3-262 TIDEWATER COMMUNITY 4 COLLEGE EXPANSION/ OPERATION SMILE 5 HEADQUARTERS TO PROVIDE SITE IMPROVEMENTS 6 FOR TIDEWATER COMMUNITY COLLEGE'S HEALTH 7 PROFESSIONS BUILDING AND OPERATION SMILE'S 8 HEADQUARTERS AND AUTHORIZE THE CITY MANAGER 9 TO EXECUTE A NON-BINDING TERM SHEET 10 WHEREAS, on December 11, 2001, City Council adopted a term-sheet that 11 recognized the City's participation in the expansion of Tidewater Community College; 12 13 WHEREAS, Operation Smile plans to locate its worldwide headquarters in Princess 14 Anne Commons adjacent to Tidewater Community College's Health Professions Building; 15 and 16 17 WHEREAS, the City and Operation Smile have reached agreement concerning 18 commitments contained in the attached non-binding term sheet setting forth the intent of 19 the parties as negotiations proceed (the "Term Sheet"). 20 21 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 22 VIRGINIA BEACH, VIRGINIA: 23 24 (1) That capital project #3-262 Tidewater Community College Expansion is hereby 25 renamed to Tidewater Community College Expansion/Operation Smile 26 Headquartern. 27 28 (2) That $3,500,000 is hereby transferred from capital project # 3-368 Various Site 29 Acquisitions to capital project #3-262 Tidewater Community College 30 Expansion/Operation Smile Headquarters for site improvements associated with 31 the Health Professions Building and Operation Smile's headquarters. 32 33 (3) That the City Manager is authorized to execute the attached Term Sheet with 34 Operation Smile. II . I 35 36 Adopted by the Council of the City of Virginia Beach, Virginia, on the 11 th day of 37 DeC~Htl.ber' 2007. Requires an affirmative vote by a majority of the members of the City Council, CA10519 December 5, 2007 v :Iappl i cationslcitylawprod\cycom321 Wpdocs\D005\P002100044959. DOC R-1 APPROVED AS TO CONTENT ,B~JQ.~ Management Services 'J APPROVED AS TO LEGA}. SUFFICIENC:Y./ /'P' ./'1../' .c.......,..... ./'.-z..//' //,;:,~:,/ ./;(:/ City Attorney's Office . I TERM SHEET OPERATION SMILE RELOCATION TO VIRGINIA BEACH Representatives of the City of Virginia Beach ("City") and Operation Smile have been discussing a possible partnership concerning the relocation of Operation Smile's headquarters to Virginia Beach on city-owned property adjacent to the Tidewater Community College ("TCC") campus. This Term Sheet is intended to reflect the shared understanding of both parties and their respective commitments. The Term Sheet is not intended to be a legally binding agreement, and all proposals outlined are subject to approval and future appropriation by the Virginia Beach City Council and funding commitments approved by the Board of Directors for Operation Smile. 1, The City will dedicate City-owned property adjacent to TCC for relocation of Operation Smile's headquarters to Virginia Beach (the "Property"). The property selected will be discussed with TCC to coordinate with their master planning efforts for the campus. 2 Similar to the City's commitment to TCC, the City will provide for site improvements beyond five feet from Operation Smile's proposed headquarters building, which includes construction of necessary outdoor lighting, sidewalks, landscaping, and parking lots. The City and Operation Smile will coordinate with Tidewater Community College to maximize shared site improvements, such as shared parking lots. The City has previously paid $1,980,135 to TCC for site improvement costs for phase I ofthe Health Professions Building. In addition to the $1,980,135, the City's commitment for the remaining costs of site improvements for both TCC (phase I) and Operation Smile is a maximum of$3.5 million. The City will pay TCC for its share of the additional site improvement costs ("Additional TCC Site Improvement Costs") based on the best available estimate of total costs. The City will pay Operation Smile subject to the conditions noted in #8 and #9 below. Operation Smile will be responsible for any site improvement costs that exceed $3.5 million less the Additional TCC Site Improvement Costs paid to TCC. 3. Operation Smile will pay for all costs associated with designing and constructing its headquarters building. 4. All design and construction plans must be reviewed and approved by the City and TCC. 5. TCC must consent to and approve the conveyance ofthe Property to Operation Smile. 6. The Property shall be used only for non-profit purposes consistent with the mission of Operation Smile. Operation Smile will apply for tax-exempt status with the City, 7. The Property may not be sold or otherwise conveyed to another entity unless approved by the City. " ,II 8. Operation Smile will contract for the design and construction of its headquarters building and necessary site improvements, including the site improvement costs noted in #2 above. Upon written notification of contract award, the City will reimburse Operation Smile for its share of the site improvement costs if Operation Smile has posted the surety bond described below. If Operation Smile does not post the surety bond, the City shall reimburse Operation Smile, monthly, for actual costs of the site improvements In either event, Operation Smile shall document actual costs for site improvements and provide such documentation to the City. If the site improvements cost less than the City's contribution, the remaining funds shall be returned to the City. 9. If Operation Smile elects to receive its portion of the $3.5 million for the site improvements less the Additional TCC Site Improvement Costs paid to TCC on the award of the construction contract, Operation Smile will post a surety bond. The surety bond will be in form and substance satisfactory to the City and in the amount of the site improvement costs to secure its use of the site improvement costs for their intended purpose. 10. Operation Smile will be responsible for all future operating, maintenance, and replacement costs associated with the headquarters building as well as all site improvements noted in #2 above. 11. Operation Smile will work with TCC, Old Dominion University, and Norfolk State University to develop joint programs that will enhance the educational experiences of their students. 12. Operation Smile agrees to provide appropriate documentation to the City verifying that City-provided funds were expended for the intended purpose. This documentation may include, but shall not be limited to, copies of bids, contracts, and final payments. 13. If Operation Smile has not begun construction of its headquarters' building within three years from the date all rezoning and approvals by the City, ODU, TCC, and the Southeastern Public Service Authority (SPSA) have been obtained, the title may, at the City's option, revert back to the City at no cost. 14. Operation Smile will work with the City's Media Communications Group to discuss joint marketing and public relations endeavors that will promote Operation Smile and its location in Virginia Beach. 15. Both the City and Operation Smile agree to meet and confer as necessary III furtherance ofthe objectives expressed in this Term Sheet. 16. The parties recognize and agree that if the proposal outlined in this Term Sheet moves forward, there will be negotiated and prepared a more detailed development agreement that will contain additional terms, conditions and obligations to the terms I . I stated herein. 17. The City will grant Operation Smile an option to purchase approximately three acres bordering Rosemont Road and Concert Drive, which is a portion of the property currently operated by SPSA (the "SPSA Property"). The option will vest if the SPSA Property: (i) is no longer occupied by SPSA, and (ii) is no longer operated as a transfer station. The option would be at no cost to Operation Smile and the land would only be used for the expansion of Operation Smile's non-profit mission. Signed this day of ,2007. CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia OPERATION SMILE, a Virginia corporation By: By: James K. Spore, City Manager Howard Unger, Board of Directors V: \applications\citylawprod\cycom32\ Wpdocs\D005\P002\00044958.DOC L. PLANNING l.a. CORY LANGLEY l.b. NANCY RICHARDSON 2a/b SOUTHEAST MARINE GROUP, LLC 3.a. BROWN BUILDING CORPORATION b. DELAWARE CORPORATION c. WAWA, INC. 4a. WELLINGTION FARM, L.L.C. b. OCEANA CHURCH OF CHRIST c. WILLIE DONALD MARTIN, JR. 5. SYKES REAL PROPERTIES, L.L.C. 6. ANWARUL ISLAM/SHAHANA ISLAM - 37 - ITEM # 57166 NONCONFORMING USE NONCONFORMING USE VARIANCE MODIFICATION OF CONDITIONS (Conditional Use Permit 4/11/1966) CONDITIONAL USE PERMIT (Modification of Conditions 7/10/2007) CONDITIONAL USE PERMIT (Modification of Conditions 5/23/2006) CONDITIONAL USE PERMIT (Modification of Conditions 11/26/2002) CONDITIONAL USE PERMIT CONDITIONAL USE PERMIT CONDITIONAL USE PERMIT CONDITIONAL CHANGE OF ZONING CONDITIONAL USE PERMIT CONDITIONAL CHANGE OF ZONING December 11, 2007 I, ,II - 38 - Item V-L. PLANNING ITEM #57167 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council APPROVED IN ONE MOTION Items 1 alb, 3 a Ic, 4 albic, 5a/b and 6 of the Planning By Consent Agenda. Voting: 10-0 (By Consent) Council Members Voting Aye: 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: William R. "Bill" DeSteph Council Lady McCZanan voted a VERBAL NAY on Item 1.3.b (DEWALARE COPRORATIONO Vice Mayor Jones ABSTAINED on Item 3.c. (WAWA, INC.) as he has a pending contract with WAWA on a piece of property owned by Vice Mayor Jones. Councilman Wood ABSTAINED, on Item K.4.c. (WILLIE DONALD MARTIN, JR.) 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, 1.1.c. and ifhis application is granted, he will terminate the rental agreement with Connie One, 1.1.c. Councilman Wood is a member of Connie One, 1.1. 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. Council Lady Henley and Council Lady McClanan voted a VERBAL NA Y on Item 1. 5. (SYKES REAL PROPERTIES, L.L.C.) December 11, 2007 i'll - 39 - Item V.L.l.a. PLANNING ITEM #57168 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED Resolution authorizing the Enlargements of a Nonconforming Use re application of CORY LANGLEY for an expansion to an existing single-family dwelling and duplex at 8006 and 8008 Atlantic Avenue, RESOLUTION AUTHORIZING THE ENLARGEMENT OF A NONCONFORMING USE UPON APPLICATION OF CORY LANGLEY Resolution authorizing the Enlargement of a Nonconforming Use upon application of CORY LANGLEY on property located at 8006 and 8008 Atlantic Avenue, DISTRICT 5 - LYNNHA VEN The following conditions shall be required: 1. The existing structure shall be converted to a single-family dwelling. The first floor apartment shall be eliminated. 2. The applicant shall submit a tree preservation plan to the current Planning Division of the Planning Department before any land disturbance or construction begins. If any of the trees are damaged or removed from the site without approval of the current Planning Division of the Planning Department, they shall be replaced with the same species at a 2: 1 ratio. 3, The additions shall substantially adhere to the submitted first and second floor "after" plans (pages 2 and 3), which were submitted with the application and are part of this report. They have been exhibited to the City Council and are on file in the Planning Department. 4. The applicant shall submit a list of proposed building materials and colors to the current Planning Division of the Planning Department during detailed site plan review. The applicant shall use high quality building materials such as hardi-plank siding, brick and architectural grade roofing shingles. Exterior trim shall be wrapped with vinyl. The use of vinyl siding on the body of the building is strongly discouraged. 5. The applicant shall submit a re-subdivision plat vacating the interior property line before final building inspections are performed. December 11,2007 , , I - 40- Item V.L.l.a. PLANNING ITEM #57168 (Continued) Voting: 10-0 (By Consent) Council Members Voting Aye: 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: William R. "Bill" DeSteph December 11, 2007 1 A RESOLUTION AUTHORIZING THE ENLARGEMENT OF 2 A NONCONFORMING USE ON PROPERTY LOCATED AT 3 8006 AND 8008 ATLANTIC AVENUE, L YNNHAVEN 4 DISTRICT 5 WHEREAS, Cory Langley (hereinafter the "Applicant"), has made application to 6 the City Council for authorization to enlarge a nonconforming use with an addition to a 7 duplex structure on a certain lot or parcel of land having the address of 8006 and 8008 8 Atlantic Avenue, in the R-5R Zoning District; and 9 10 WHEREAS, the said use is nonconforming, as the parcel contains both a single- 11 family dwelling and a duplex, which is not presently allowed in the R-5R Zoning District 12 but was constructed prior to the adoption of the Zoning Ordinance; and 13 14 WHEREAS, pursuant to Section 105 of the City Zoning Ordinance, the 15 enlargement of a nonconforming use is unlawful in the absence of a resolution of the 16 City Council authorizing such action upon a finding that the proposed use, as enlarged, 17 will be equally appropriate or more appropriate to the zoning district than is the existing 18 use; 19 20 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 21 VIRGINIA BEACH, VIRGINIA: 22 23 That the City Council hereby finds that the proposed use, as enlarged, will be 24 equally appropriate to the district as is the existing use, 25 26 BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA 27 BEACH, VIRGINIA: 28 29 That the proposed enlargement of the duplex dwelling is hereby authorized, upon 30 the following conditions: 31 32 1. The existing structure shall be converted to a single-family dwelling, The first 33 floor apartment shall be eliminated. 34 35 2. The applicant shall submit a tree preservation plan to the Current Planning 36 Division of the Planning Department before any land disturbance or 37 construction begins. If any of the trees are damaged or removed from the site 38 without approval of the Current Planning Division of the Planning Department, 39 they shall be replaced with the same species at a 2: 1 ratio. 40 41 3. The additions shall substantially adhere to the submitted first and second floor 42 "after" plans (pages 2 and 3), which were submitted with the application and 43 are part of this report. They have been exhibited to the City Council and are 44 on file in the Virginia Beach Planning Department. 45 46 4, The applicant shall submit a list of proposed building materials and colors to 47 the Current Planning Division of the Planning Department during detailed site I'll 48 plan review. The applicant shall use high quality building materials such as 49 hardi-plank siding, brick, and architectural grade roofing shingles. Exterior 50 trim shall be wrapped with vinyl. The use of vinyl siding on the body of the 51 building is strongly discouraged. 52 53 5. The applicant shall submit a re-subdivision plat vacating the interior property 54 line before final building inspections are performed, 55 56 57 Adopted by the Council of the City of Virginia Beach, Virginia, on the 11 f-h day of 58 December, 2007, APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: ~~i0~ '~u~ft1lrW City Attorney's Office CA 10593 R-1/November 27,2007 i I I - 41 - Item V.L.Lb. PLANNING ITEM #57169 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED Resolution authorizing the Enlargements of a Nonconforming Use re application of NANCY RICHARDSON for an expansion to an existing duplex at 7212 Atlantic Avenue RESOLUTION AUTHORIZING THE ENLARGEMENT OF A NONCONFORMING USE UPON APPLICATION OF NANCY RICHARDSOIN Resolution authorizing the Enlargement of a Nonconforming Use upon application of NANCY RICHARDSONI on property located at 7212 Atlantic Avenue DISTRICT 6 - BEACH The following conditions shall be required: 1. The sunroom shall be constructed substantially in accordance with the site plan and building elevations, which were submitted with the application and are part of this report. Said plans have been exhibited to the City Council and are on file in the Planning Department. 2. Building materials shall substantially conform to the existing dwelling materials and surrounding uses. Voting: 10-0 (By Consent) Council Members Voting Aye: 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: William R. "Bill" DeSteph December 11,2007 III 1 A RESOLUTION AUTHORIZING THE ENLARGEMENT OF 2 A NONCONFORMING USE ON PROPERTY LOCATED AT 3 7212 ATLANTIC AVENUE, BEACH DISTRICT 4 WHEREAS, Nancy Richardson (hereinafter the "Applicant"), has made 5 application to the City Council for authorization to enlarge a nonconforming use with an 6 addition to a duplex structure on a certain lot or parcel of land having the address of 7 7212 Atlantic Avenue, in the R-5R Zoning District; and 8 9 WHEREAS, the said use is nonconforming, as the parcel contains both a duplex 10 structure and a shared garage structure, which is not presently allowed in the R-5R 11 Zoning District but was constructed prior to the adoption of the Zoning Ordinance; and 12 13 WHEREAS, pursuant to Section 105 of the City Zoning Ordinance, the 14 enlargement of a nonconforming use is unlawful in the absence of a resolution of the 15 City Council authorizing such action upon a finding that the proposed use, as enlarged, 16 will be equally appropriate or more appropriate to the zoning district than is the existing 17 use; 18 19 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 20 VIRGINIA BEACH, VIRGINIA: 21 22 That the City Council hereby finds that the proposed use, as enlarged, will be 23 equally appropriate to the district as is the existing use. 24 25 BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA 26 BEACH, VIRGINIA: 27 28 That the proposed enlargement of the duplex dwelling is hereby authorized, upon 29 the following conditions: 30 31 1, The sunroom shall be constructed substantially in accordance with the site 32 plan and building elevations, which were submitted with the application and 33 are part of this report, Said plans have been exhibited to the City of Virginia 34 Beach City Council and are on file in the Planning Department. 35 Building materials shall substantially conform to the existing dwelling 36 materials and surrounding uses. 37 38 2. Building materials shall substantially conform to the existing dwelling 39 materials and surrounding uses. 40 41 Adopted by the Council of the City of Virginia Beach, Virginia, on the 11 thday of 42 December, 2007. , , I APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: \ . \ ~ I~) Plannin (~flP'{ /vf !{aJ City At orney's Office I CA 10592 R-1/November 28,2007 - 42- Item V.L.l.a. lb. PLANNING ITEM #57170 Attorney Edward Bourdon, Pembroke Office, 281 Independence Boulevard, Phone: 499-8971, represented the applicant and advised the attendance of Paul Martin, local architect. The principal use site is a 20,55 acre parcel on the north side of Old Pungo Ferry Road, adjacent to the eastern Shore Line of the North Landing River, This 20.55 acre property is zoned unconditional B-4 Commercial. The original Conditional Use Permit approved on April 11 , 1966, was for a Marina with marine, sales and service along with fifty-three (53) cabins and recreational facilities. No conditions were placed on the Use Permit other than a right-of-way dedication in compliance with the Site plan Ordinance. Until a couple of years ago, Captain George's Seafood Restaurant and the Pungo Ferry Marina operated on the property for many years. The proposal involves the construction of a dry storage facility, demolishing the Captain's George Restaurant and construct a much smaller 3,000 square foot restaurant, as well as install a swimming pool and playground area next to the restaurant. The Pungo Ferry Marina expansionfor Southeast Marine Group, LLC, was depicted on a plan and is hereby made a part of the record. Twenty-six ornamental cupolas have been added to the building, thus this is one of the most architectural attractive dry storage facilities for boats in the entire Commonwealth of Virginia. The building is sprinkled and OF -combustible material. Paul Martin, AlA, Martin and Martin - Architects, Phone: 499-6882, represented the applicant and advised the sprinkler flow duration has been increased to two (2) hours. There is a complete interactive storage system at every level of the facility, The maximum intended use is for 648 boats, but this can be downsized. The facility is remotely monitored. Upon motion by Council Lady Henley, seconded by Councilman Dyer, City Council, ADOPTED WITH AMENDED Condition No, 6; THAT THE BUILDING SHALL NOT EXCEED SIXTY-THREE (63) FEET Ordinances upon applications of SOUTHEAST MARINE GROUP, LLC, re dry storage for boats and trailers, a restaurant, pool and recreational area at 2272 Old Pungo Ferry Road re Variance to 95B of the Site Plan Ordinance, Floodplain Regulations and to the Southern Watersheds Management Ordinance re proposed encroachments and Modification of Conditions to add certain facilities on a Conditional Use Permit (approved April 11, 1966): Application of Southeast Marine Group, L.L.c. for a Variance to Section 5B of the Site Plan Ordinance, Floodplain Regulations on property located at 2272 Old Pungo Ferry Road (GPINs 2309236398; 2309336649). DISTRICT 7 - PRINCESS ANNE. AND, ORDINANCE UPON APPLICATION OF SOUTHEAST MARINE GROUP, L.L.c. FOR A MODIFICATION OF CONDITIONS FOR A REQUEST APPROVED BY CITY COUNCIL ON APRIL 11,1966. BE IT HERY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Southeast Marine Group, L.L.c. for a Modification of Conditions for a request approved by City Council on April 11, 1966. Property is located at 2272 Old Pungo Ferry Road (GPINs 2309236398; 2309336649). DISTRICT 7 - PRINCESS ANNE. December 11,2007 - 43 - Item V.L.l.a. lb. PLANNING ITEM #57170 (Continued) The following conditions shall be required; 1. All conditions attached to the Conditional Use Permit granted by the City Council on April 11, 1966, remain in affect, except the applicant may not construct the allowed fifty-three (53) cabins. 2. The site shall be developed and rehabilitated in substantial conformance with the submitted plan entitled "CUP Exhibit for Pungo Ferry Marina Expansion, Virginia Beach, Virginia," prepared by SIA Site Improvement, Civil Engineers, Surveyors and Site Contractors, dated July 20, 2007, except for modifications enumerated in the conditions that follow. 3. The applicant shall use porous pavers or porous concrete in the parking areas adjacent to the proposed restaurant (38 spaces), the existing general store (86 spaces) and the rear of the proposed dry storage (30 spaces). 4. The applicant shall install a four (4) -foot high white PVC picket fence with evergreen trees along the entire length of the eastern property line adjacent to the rural residential homes and 125-feet westerly along the frontage adjacent to Old Pungo Ferry Road. 5, Within the proposed buffer area adjacent to the eastern property line, the applicant shall plant a row of six (6)- to eight (8)-foot tall evergreen trees limbed to the ground, such as Leyland Cypress or Deodar Cedar, ten- (10) foot on center, and a row of three (3)- to four (4)-foot tall evergreen shrubs, such as rhododendron or wax myrtles, four (4)-foot on center. Perennial and lor seasonal annual flowers shall also be planted. 6. The proposed buildings on the site (dry storage and restaurant) shall be constructed in substantial conformance with the submitted plan entitled "PUNGO FERRY MARINA ", Sheet A- 1, prepared by Martin and Martin, Architects, except a third cupola shall be added on the eastern side of the building. The cupolas should be spaced approximately 100-feet apart on the building. The building shall not exceed 6t) sixty-three (63) feet at the highest point and at the eave shall not exceed an average height of thirty-nine (39) feet. Said plan has been exhibited to the City Council and is onfile in the Planning Department. The primary building colors shall be earth toned, tan and cream with white trim or light and dark gray with white trim. The proposed standing seam roofing shall be blue, gray, white or green. 7. Before any land disturbing activity takes place, a Southern Watershed Management Plan must be submittedfor review and approval. 8, The existing shed(s) adjacent to the eastern side of the site shall be removed before construction of the dry storage building. 9. There shall be no disposal of remnant sewage from users of the site, The applicant shall install a sewage/wastewater pump-out facility sufficient to accommodate users of the site, The applicant shall obtain Health Department approval for the system, December 11, 2007 - 44- Item VL.2.a./b PLANNING ITEM #57170 (Continued) 10. The applicant shall submit a photometric lighting plan, with emphasis on the use of full cut-off fixtures for all parking lot lighting and any outside building mounted lighting (wall packs). The building mounted lighting shall have appropriate shielding that directs light downward. The plan shall also include provisions for implementing low-level security lighting for non-business hours, Low-level security lighting shall be implemented along the residential areas adjacent to the site from 11:00 PM to 7:00 AM All lighting on the site should be consistent with the standards recommended by the Illuminating Engineering Society of North America. 11. Hours of operation for the dry storage building shall be from 7:30 A.M to dark; for the restaurant (bar, tiki hut) shall be 10:00 AM to 10:00 PM, Sunday through Thursday, and 10:00 AM to 11: 00 PM, Friday and Saturday; for the pool and recreation area 9: 00 AM to dark. 12. All repairs shall be conducted within the building, There shall be no inoperable or junked boats or trailers stored outside. 13. Based on well failures during the construction of the Pungo Ferry Bridge, water samples shall be taken from homeowners' wells west of the "Drainfield Parcel ", identified as GP IN 2309-33- 6649-0000, and north of Pungo Ferry Road. If such sampling demonstrates any damage to the wells or declines in water potability during construction and rehabilitation of the site, the developer/applicant shall be responsible for replacing impacted wells. 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 Eleventh of December Two Thousand Seven Voting: 10-0 (By Consent) Council Members Voting Aye: 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: William R. "Bill" DeSteph December 11, 2007 " ,II - 45- Item V.L.3.a. PLANNING ITEM #57171 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council MODIFIED, AS PROFFERED, Ordinance upon application of BROWN BUILDING CORPORATION on a Conditional Use Permit approved July 10, 2007, re the addition of a porte-cochere covered drop-off area at 4847 Dolton Drive. ORDINANCE UPON APPLICATION OF BROWN BUILDING CORPORATION FOR A MODIFICATION OF CONDITIONS FOR A REQUEST APPROVED BY CITY COUNCIL ON JULY 10, 2007. BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Application of Brown Building Corporation for a Modification of Conditions for a request approved by City Council on July 10, 2007. Property is located at 4847 Dolton Drive (GPIN 1477205567). DISTRICT 2 - KEMPSVILLE. The following condition shall be required: 1. An AMENDED 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 Eleventh of December Two Thousand Seven Voting: 10-0 (By Consent) Council Members Voting Aye: 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: William R, "Bill" DeSteph December 11,2007 II CITY OF VIRGINIA BEACH INTER-OFFICE CORRESPONDENCE In Reply Refer To Our File No. DF-6880 DATE: November 29,2007 FROM: Leslie L. Lilley ~ B. Kay Wilson DEPT: City Attorney DEPT: City Attorney TO: RE: Conditional Zoning Application: Brown Building Corporation The above-referenced conditional zoning application is scheduled to be heard by the City Council on December 11, 2007. I have reviewed the subject proffer agreement, dated August 31, 2007 and have determined it to be legally sufficient and in proper legal form, A copy of the agreement is attached. Please feel free to call me if you have any questions or wish to discuss this matter further. BKW/ks Enclosure cc: Kathleen Hassen II AMENDED PROFFER AGREEMENT THIS AGREEMENT made this 31st day of August, 2007, by and between BROWN BUILDING CORPORATION, a Virginia corporation, hereinafter called "Grantor"; and the CTIY OF VIRGINIA BEACH, a Municipal Corporation of the Commonwealth of Virginia, hereinafter called "Grantee". The purpose of this agreement is to modify prior Proffer Agreements between the parties hereto dated January 7, 1993, April 21, 2000, August 15, 2000, November 1, 2002, and February 27, 2007. RECITAlS: R-1 The Grantor is the record fee simple owner of the property (the "Property") located in Kempsville District, City of Virginia Beach, Virginia and described in Exhibit "A" hereto and incorporated within this Agreement. R-2 Roda Associates, a Virginia general partnership, ("Roda") predecessor in title to Grantor, previously initiated an amendment to the zoning map of the City of Virginia Beach, Virginia, (the "Zoning Map") by petition addressed to the Grantee, so as to change the zoning classification of the property from R-5D Residential District to Conditional B-2 Business District. This amendment was made pursuant to the terms of the zoning ordinance of the City of Virginia Beach, Virginia adopted April 18, 1988, as amended (the "Zoning Ordinance") and was granted by City Council action on July 13, 1993. In connection with the foregoing, by Agreement dated January 7, 1993, and recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 3242, at Page 2172, Roda did voluntarily offer, in writing, as part of the zoning amendment to the Zoning Map with respect to the Property, certain conditions related to the physical development, operation and use of the Property which was adopted as part of said amendment to the Zoning Map and made applicable to the Property. These conditions were to remain in full force and effect until amended by following the procedures and recording the documents as outlined and required in the Zoning Ordinance. GPIN: 1477-20-5567 PREPARED BY: Prepared By: II SITJ;:S, ROURDON,sAIIrnN & LM, P.c. R. Edward Bourdon, Jr., Esquire Sykes, Bourdon, Ahem & Levy, P .C. 281 Independence Blvd. Pembroke One, Fifth Floor Virginia Beach, Virginia 23462 1 ,II R-3 Grantor previously initiated four (4) modifications to the conditions of the aforesaid amendment to the Zoning Map referenced in paragraph R-2 above and in connection with the foregoing, by agreements dated the 1st day of April, 2000, the 15th of August, 2000, the 1st day of November, 2002, and the 2'1h of February, 2007, and recorded in the Clerk's Office aforesaid in Deed Book 4257, at Page 119; Deed Book 4324, at Page 966; as Instrument #200302270029510; and as Instrument #20070717000961870, respectively, Grantor voluntarily proffered, in writing, as part of the modification of the conditions with respect to the Property, certain conditions related to the physical development, operation and use of the Property which were adopted as part of said modification of the conditions applicable to the Property. These modified conditions were to continue in full force and effect until amended by the procedures and recording the documents as outlined and required in the Zoning Ordinance. R-4 Grantor has initiated another modification of the conditions referenced in Paragraphs R-2 and R-3 above in order to change certain conditions that were previously placed upon the Property in connection with the amendment to the Zoning Map as to the Property. R-5 The Grantee's policy is to provide only to the orderly development of land, for various purposes, including business purposes, through zoning and other land development legislation. R-6 The Grantor acknowledges that competing and sometimes incompatible uses conflict and that in order to permit different uses on and in the area of the Property and at the same time to recognize the effect of the changes and the need for various types of uses, including those listed above, certain reasonable conditions governing the use of the Property for the protection of the community that are not generally applicable to land similarly zoned B-2 are needed to cope with the situation which the Grantor's request for modification of conditions gives rise to. R -7 The Grantor has voluntarily offered, in writing, in advance of and prior to the public hearing before the Grantee, as part of the proposed modification of the conditions previously attached to the amendment to the Zoning Map with respect to the PREPARED BY: Property, in addition to the regulations provided for in the existing B-2 zoning district by IB SYJ(I:S. ROURDON. the Zoning Ordinance, the following reasonable conditions related to the physical II AHrnN & lIVY. P.c. development, operation and use of the Property to be adopted as part of modification of 2 ,II the conditions applicable to the Property, which have a reasonable relation to the modification of the conditions and the need for which is generated by the modification of the conditions. R -8 The conditions outlined in this Agreement have been proffered by the Grantor and allowed and accepted by the Grantee as part of the modification to the conditions and the Zoning Map. These conditions shall continue in full force and effect until a subsequent amendment changes the zoning of the Property; provided, however, that such conditions shall continue despite a subsequent amendment if the subsequent amendment is part of the comprehensive implementation of a new or substantially revised zoning ordinance of Grantee, unless, notwithstanding the foregoing, the conditions are amended or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and executed by the record owner of the property at the time of recordation of such instruments; provided further that said instrument is consented to by the Grantee, in writing, as evidenced by certified copy of the ordinance or resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee advertised pursuant to the provisions of the code of Virginia, Section 15.2-2204, which said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent. WITNESSETH: NOW, THEREFORE, the Grantor, for itself, its successors, personal representatives and assigns, grantees and other successors in title and interest, voluntarily without any requirement by or exaction from the Grantee or its governing body and without any element of compulsion or quid pro quo for zoning, rezoning, site plan, building permit, or subdivision approval, hereby makes the following declaration of amended conditions and amended restrictions which shall restrict and govern the physical development, operation and use of the Property and hereby covenants and agrees that this declaration shall constitute covenants running with the Property, which shall be binding upon the property and upon all parties and persons claiming under or through the Grantor, its successors, PREPARED BY, personal representatives, assigns, grantees, and other successors in interest or title. D SVl(IS. ROURDON, 1. Condition numbered "3" as contained in the Amended Proffer Agreement .. AHrnN & lIVY. P.C dated February 27,2007 is hereby deleted and the following condition is added to govern 3 PREPARED BY: n SYKl:S, DOURDON, iii AlIfRN & LM, P.c. II development of the Property: When the Property is developed, it shall be developed substantially in conformance with that exhibit entitled, "LAYOUT PLAN FOR DRS DEVELOPMENT DAY CARE FACILTIY AT DOLTON DRIVE, VIRGINIA BEACH, VIRGINIA", dated 08-10-07, prepared by S.I.A. (the "Site Plan"), and the building and improvements will have the architectural features and appearance substantially as depicted on the exhibit entitled, "DRS DEVELOPMENT jPROPOSED DAY CARE CENTER, VIRGINIA BEACH, VIRGINIA", dated August 10, 2007, prepared by EYG Architects, P.C. (the "Architectural Rendering"). The Site Plan and Architectural Rendering have been exhibited to the Virginia Beach City Council and are on file with the Virginia Beach Department of Planning. 2. Except as expressly modified herein, those proffered covenants, conditions and restrictions contained in the Amended Proffer Agreement dated February 27, 2007, recorded as Instrument #20070717000961870 remain in full force and effect and are hereby reaffirmed. 4 II WITNESS the following signature and seal: Grantor: Brown Building Corporation, a Virginia corporation BY~ ~ ~~ (SEAL) Ronald . Brown, PresIdent I, , a Notary Public in and for the City and State aforesaid, do hereby certify at Rona K. Brown, President of Brown Building Corporation, a Virginia co ration, whose name as such is signed to the foregoing instrument bearing date on the 31st day of August, 2007, has acknowledged the same before me in my said City and State. GIVEN under my hand this ~y of Septem er, 2007. J My Commission Expires: Notary Registration No.: 1- 30.101 I 0'7 :;(~ 5 . . ~ ." t..l ",". 5 PREPARED BY: mB m~s. ROURDON. LVI AHrnN & llVY, P.C II EXHIBIT "A" ALL THAT certain lot, piece or parcel of land, with the buildings and improvements thereon, lying, situate and being in the City of Virginia Beach (formerly Princess Anne County), Virginia, in Kempsville Magisterial District, and being the northeast corner of Lot Six (6), as shown on the map of A.W. Cornick's Kempsville Subdivision, dated January, 1990, also being known and designated as "Joseph Mosley", as shown on the Map Book A.W. Cornick's Kempsville Farm, Kempsville Borough, Virginia Beach, Virginia", and is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 48, at Page 43 is more particularly bounded and described as follows: BEGINNING at a point on the southern line of Eastern Shore Road to Kempsville on the line between Tracts Four (4) and Six (6) and running thence in a southerly direction along said dividing lie between the two said tracts one hundred seventy-six (176) feet; thence in a westerly direction two hundred nineteen (219) feet; thence in a northerly direction and parallel to the dividing line between Tracts Four (4) and Six (6) two hundred eighteen (218) feet to the Eastern Shore Road to Kempsville One hundred sixty (160) feet to the point of beginning. LESS AND EXCEPT that property to City of Virginia Beach in Deed Book 2812, at Page 673, dated March 20, 1988; corrected in Deed Book 2896, at Page 376. GPIN: 1477-20-5567 ModConditions/BrownBuilding/DoltonDrive_9.04.07/Proffer 6 II - 46- Item v'L.3.b. PLANNING ITEM #57172 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council MODIFIED, AS PROFFERED, Ordinance upon application of DE LA WARE CORPORTATION on a Conditional Use Permit approved May 23,2006, re the addition of an apartmentfor afulltime manager and to allow recreational vehicles during construction at London Bridge Road and Harpers Road, ORDINANCE UPON APPLICATION OF DELAWARE CORPORATION FOR A MODIFICATION OF CONDITIONS FOR A REQUEST APPROVED BY CITY COUNCIL ON MAY 23,2006. BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Delaware Corporation for a Modification of Conditions on a request approved by City Council on May 23, 2006. Property is located on northeast side of London Bridge Road, approximately 130 feet southeast of Harpers Road (GPIN 2405422428). DISTRICT 6 - BEACH The following condition shall be required: 1, An AMENDED 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 Eleventh of December Two Thousand Seven Voting: 9-1 (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: Reba S. McClanan Council Members Absent: William R. "Bill" DeSteph December 11, 2007 II CITY OF VIRGINIA BEACH INTER-OFFICE CORRESPONDENCE In Reply Refer To Our File No. DF-6881 DATE: November 29, 2007 FROM: Lesl.ie L. Lille~{\ ~ B, Kay Wilso~ DEPT: City Attorney DEPT: City Attorney TO: RE: Conditional Zoning Application: De/eware Corporation The above-referenced conditional zoning application is scheduled to be heard by the City Council on December 11, 2007. I have reviewed the subject proffer agreement, dated August 3, 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/ks Enclosure cc: Kathleen Hassen FIRST AMENDMENT TO PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS DELAWARE CORPORATION, a Virginia limited liability company TO (PROFFERED COVENANTS, RESTRICTIONS AND CONDmONS) CTIY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia THIS AGREEMENT, made this 31st day of August, 2007, by and between DELAWARE CORPORATION, a Virginia limited liability company, Grantor; and THE CTIY 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 Beach District of the City of Virginia Beach, Virginia, containing a total of 43.278 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 January 30, 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: 2405-42-2428 Prepared By: R Edward Bourdon, Jr., Esq. Sykes, Bourdon, Ahern & Levy, P.C. 281 Independence Blvd. Pembroke One, Fifth Floor Virginia Beach, Virginia 23462 PREPARED BY: lIB Syn:s. ROURDON, o AHrnN & lIVY, P.c. 1 I I I I 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 "2" in the 2006 Proffers is amended to read: The area of this parcel depicted as "Bulk Storage" on the Concept Plan shall only be utilized for storage of registeredj operable recreation vehicles ("RV"), watercraft, trailers, all terrain vehicles ("ATV"), motorcycles, and motor vehicles. In addition, living quarters for an onsite security jfacility manager shall be permitted in the storage building designated E-1 as depicted on the Site Plan. Grantor shall also be permitted to temporarily utilize three (3) RV s on the Property during development in lieu of construction trailers in order to PREPARED BY: provide a temporary construction office and onsite security prior to the issuance of the II SYITs, ROURDON, Certificate of Occupancy for the storage building designated E-l on the Concept Plan. AHrnN & lIVY, P.L 2 II 2. 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 #20060531000821930, save and except, Proffer 2, 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 1-2 Industrial 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 PREPARED BY: vested with all necessary authority, on behalf of the governing body of the City of Virginia IB STIJ':S, ROURDON. Beach, Virginia, to administer and enforce the foregoing conditions and restrictions, ill AHrnN & LM, P.C including the authority (a) to order, in writing, that any noncompliance with such 3 1111 conditions be remedied; and (b) to bring legal action or suit to insure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages, or other appropriate action, suit, or proceeding; (2) The failure to meet all conditions and restrictions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) If aggrieved by any decision of the Zoning Administrator, made pursuant to these provisions, the 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. PREPARED BY: IB SYKIS, ROURDON, D AHrnN & LM', P.c. 4 PREPARED BY; 1m SillS, BOURDON, II AIIffiN & lJ:VY, p,c. II WITNESS the following signature and seal: Grantor: ( Delaware Corporation, a Virginia corporation BttL" ffr. 6~ Oscar M. Barber, President (SEAL) STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to wit: The foregoing instrument was acknowledged before me this 4th day of September, 2007, by Oscar M. Barber, President of Delaware Corporation, a Virginia corporation. He is personally known to me. My Commission Expires: Notary Registration No.: _A,Li/~ -y/1e&/ib Nota Public August 31, 2010 192628 5 PREPARED BY: lB syn:s. ROURDON. II AHrnN & IIVY. p,c. II EXHIBIT "A" ALL THAT certain lot, piece or parcel of land, situate, lying and being in the City of Virginia Beach, Virginia, and being known, numbered and designated as Parcel B-I-A, containing 43.278 acres, as shown on that certain plat entitled "SUBDIVISION OF PROPER1Y OF THE TAYLOR GROUP, LLLP PARCEL B-1 INSTRUMENT # 200504280063311 JUNE 1, 2005 VIRGINIA BEACH, VIRGINIA", which said plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, as Instrument # 2006011100062490. GPIN: 2405-42-2428 ModitionstoProffers/DelawareCorporation/Proffer 6 II - 47- Item V.L.3.e. PLANNING ITEM #57173 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council MODIFIED/CONDITIONED WITH NO LEFT TURNS, upon application of WAWA,INC. re a Conditional Use Permit approved November 26, 2002, re the addition of a drive-up food service and an outdoor trash receptacle at 2954 Virginia Beach Boulevard: ORDINANCE UPON APPLICATION OF WAWA, INC. FOR A MODIFICATION OF CONDITIONS FOR A REQUEST APPROVED BY CITY COUNCIL ON NOVEMBER 26, 2002. BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Application of Wawa, Inc. for a Modification of Conditions on a request approved by City Council on November 26, 2002. Property is located at 2954 Virginia Beach Boulevard (GPIN 1497266065). AICU2 is 70 to 75. DISTRICT 5 - LYNNHA VEN The following conditions shall be required: 1. All conditions with the exception of Number 6 attached to the Conditional Use Permit granted by the City Council on November 26, 2002, shall remain in affect. 2. Condition Number 6 of the November 26, 2002, Conditional Use Permit is deleted and replaced with the following: The site shall be developed in substantial accordance with the site plan entitled "Exhibit for Wawa Food Market, " dated September 7, 2007, prepared by MSA, PC A copy of this site plan has been exhibited to City Council and is on file in the Planning Department. 3. When the food service canopies are constructed, they shall be in substantial conformance with the elevations entitled, "Proposed Wawa, 2954 Virginia Beach Boulevard, Virginia Beach, Virginia," prepared by LYNCH MARTINEZ ARCHITECTS, LLC, dated September 13, 2007, a copy of which has been exhibited to City Council and is on file in the Planning Department 4. When the trash compound is constructed, it shall be in substantial conformance with the elevations entitled, "Proposed Wawa, 2954 Virginia Beach Boulevard, Virginia Beach, Virginia, " prepared by LYNCH MARTINEZ ARCHITECTS, LLC, dated September 13, 2007, a copy of which has been exhibited to City Council and is onfile in the Planning Department. 5, Security cameras shall be installed on the exterior of the building to monitor activity associated with the outdoor food service area. December 11,2007 II ,II - 48- Item V.L.3.e. PLANNING ITEM #57173 (Continued) This Ordinance shall be effective in accordance with Section 107 (f) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Eleventh of December Two Thousand Seven Voting: 9-0 (By Consent) Council Members Voting Aye: 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: William R. "Bill" DeSteph Vice Mayor Jones ABSTAINED as he has a pending contract with WA WA on a piece of property owned by Vice Mayor Jones. December 11,2007 II - 49- Item V.L.4.a. PLANNING ITEM #57174 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED an Ordinance upon application of WELLINGTON FARM, L.L.c., for a Conditional Use Permit re boarding and training of horses at 3125 Hungarian Road ORDINANCE UPON APPLICATION OF WELLINGTON FARM, 1.1. C. FOR A CONDITIONAL USE PERMIT FOR BOARDING AND TRAINING OF HORSES R0120734249 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Application of Wellington Farm, L.L. C. for a Conditional Use Permit for boarding and training of horses on property located at 3125 Hungarian Road (GPIN 1388743606). DISTRICT 7 - PRINCESS ANNE. The following conditions shall be required: 1. The applicant shall have six (6) months from the date of City Council's action to obtain approval from the Permits and Inspections Division of the Planning Department and the Health Department for the required sewage disposal system and water supply well for the barn operation, If determined necessary by the Building Official, the Building Official may grant one (1) extension of six (6) months for the applicant to obtain said approval, Failure to obtain the required approvals shall result in action by the Zoning Administrator to pursue revocation of the Conditional Use Permit. 2. The applicant shall obtain all necessary permits and inspections from the Permits and Inspections Division of the Planning Department for the boarding barn and the indoor arena. Any special requirements with regard to the fundraising events shall also be met. The applicant shall obtain a Certificate of Occupancy from the Building Official for the boarding barn and the indoor arena. 3. Fundraising events shall be limited to six (6) times a year. 4. All parkingfor the attendees ofthefundraising events shall be met on 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 Eleventh of December Two Thousand Seven December 11,2007 : 'II - 50 - Item V.L.4.a. PLANNING ITEM #57174 (Continued) Voting: 10-0 (By Consent) Council Members Voting Aye: 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: William R, "Bill" DeSteph December 11, 2007 - 51 - Item v'LA.b. PLANNING ITEM #57175 Council Lady Henley wished to be assured the client is aware this application is not in the area intended to be served by Public Utilities and, therefore will have to rely on the health Department's approval for sewer and water. Attorney Vincent R. Olivieri, represented the applicant, and advised the applicant is aware of the septic and water responsibility. The building will be set back 162 feet from the road. The site will be wooded with the parking in front of the building; therefore, fairly well hidden from the street, The building will be built within the next two (2) years. Upon motion by Council Lady Henley, seconded by Councilman Dyer, City Council ADOPTED an Ordinance upon application of OCEANA CHURCH OF CHRIST for a Conditional Use Permit re a church at 3073 Indian River Road ORDINANCE UPON APPLICATION OF OCEANA CHURCH OF CHRIST FOR A CONDITIONAL USE PERMIT FOR A CHURCH R0120734250 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Oceana Church of Christ for a Conditional Use Perm it for a church on property located at 3073 Indian River Road (GP IN 1483926900). DISTRICT 7 - PRINCESS ANNE. The following conditions shall be required: 1. When the property is developed, the site layout shall be in substantial conformance with the plan entitled, "Preliminary Site Plan, 17.216 acre parcel, located on Indian River Road" dated August 31, 2007, prepared by Engineering Services, Inc., which has been exhibited to the City Council and is onfile in the Planning Department, with the exception of conditions listed below and that neither the sanctuary nor the gymnasium shall be any closer than one hundred (100) feet from the reservation required by the Department of Public Works. The final size of the reservation, approximately twenty (20) feet in width, shall be determined by the Public Works Department during final site plan review. 2. When the building is constructed, it shall be in substantial conformance with the elevation entitled, "Oceana Church of Christ, New Construction, " dated August 31, 2007, prepared by Ionic Dezign Studios. 3. In an effort to aid in achieving the desires of a Princess Anne Area buffered roadway, all parking shall be no closer to the right-of way than the front of any far;:ade facing Indian River Road. The site plan referenced in Condition 1 may be adjusted to meet this requirement. December 11, 2007 II - 52 - Item V.L.4.b. PLANNING ITEM #57175 (Continued) 4. All outdoor lighting shall be shielded, deflected, shaded and focused to direct light down onto the premises and away from adjoining property. A Photometric Lighting Plan depicting such lighting shall be submitted to the City for review and approval with the final site plan submission. Said Lighting Plan shall be void of any wall-mounted lighting that just directs light outward and upward. 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 Eleventh of December Two Thousand Seven Voting: 10-0 (By Consent) Council Members Voting Aye: 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: William R. "Bill" DeSteph December 11,2007 II - 53 - Item V.L.4.c. PLANNING ITEM #57176 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED an Ordinance upon application of WILLIE DONALD MARTIN, JR., re an auto repair garage at 1128 Barrs Road. ORDINANCE UPON APPLICATION OF WILLIE DONALD MARTIN, JR, FOR A CONDITIONAL USE PERMIT FOR AN AUTOMOBILE REPAIR GARAGE R0120734251 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA 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 - BA YSIDE. The following conditions shall be required: 1. The applicant shall file the "Notice of Proposed Construction", Federal Aviation Administration (FAA) Form 7460-1 as required by Federal Aviation Regulation Part 77 with regard to development in the Runway Protection Zone of Norfolk International Airport. A copy of the FAA approval shall be submitted to the Planning Department before any site development and building construction plans are accepted for review. 2. If approved by the FAA, the site shall be developed substantially in accordance with the submitted "BOUNDARY AND PARTIAL TOPOGRAPHIC SURVEY OF 1128 BARRS ROAD - SITE 12, CORNICK FARM - 2.71 ACRES for WILLIE MARTIN", prepared by East Coast Hydrographic Surveyors and Consultants, and dated September 12, 2006, unless modification to the plan is required by the FAA approval. Said plan has been exhibited to the City Council and is onfile in the Planning Department, 3. If approved by the FAA, the proposed building shall substantially conform to the General Steel Corporation Building Systems elevations submitted with the request. The sides and rear of the building may be steel building system. The front of the building shall be a combination of block and steel as depicted on the elevations. Said elevations have been exhibited to the City Council and are onfile in the Planning Department. 4, The applicant shall work with the Fire Department and the Permits and Inspections Division of the Planning Department to obtain approval for the requiredfire protection systems. 5. Any proposed fencing around the building or site shall meet the requirements of the City Zoning Ordinance (CZO) Landscape Screening and Buffering regulations. 6. All parking shall meet the dimensional requirements of the City Zoning Ordinance parking regulations. 7. All automotive repairs shall take place inside the building. December 11,2007 II - 54 - Item V.L.4.c. PLANNING ITEM #57176 (Continued) 8. There shall be no outside storage of vehicles in a state of obvious disrepair. If vehicles in this condition require storage, then such vehicles shall be stored within the building. There shall be no outside storage of equipment, parts or materials. 9, A Lighting Plan and/or Photometric Diagram Plan shall be submitted during detailed site plan review. The Plan shall include the location of all pole mounted and building mounted lighting fixtures, and the listing of lamp type, wattage and type of fixture. Lighting shall overlap and be uniform throughout the parking area. The Plan shall also include provisions for implementing low-level security lighting for non-business hours. 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 Eleventh of December Two Thousand Seven Voting: 9-0 Council Members Voting Aye: 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 Rosemary Wilson Council Members Voting Nay: None Council Members Abstaining: James L. Wood Council Members Absent: William R. "Bill" DeSteph 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 if his 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. December 11, 2007 City e>f Virgi:r:l.ia Beach JAMES l. WOOD COUNCILMAN - DISTRICT 5 - L YNNHAVEN 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: 1. 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 I I October 9, 2007 - 55 - Item v,L. 5a1b. PLANNING ITEM #57177 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED Ordinances upon applications of SYKES REAL PROPERTIES, L.L.c., for a Conditional Change of Zoning and Conditional Use Permit: ORDINANCE UPON APPLICATION OF SYKES REAL PROPERTIES, L.L.c. FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM R-10 RESIDENTIAL DISTRICT TO CONDITIONAL 1-1 LIGHT INDUSTRIAL DISTRICT Z012071202 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Sykes Real Properties, L.L.c. for a Change of Zoning District Classification from R-10 Residential District to Conditional 1-1 Light Industrial District on property located on the west side of Birdneck Road, approximately 650 feet south of Beautiful Street (GPIN 2417427222). DISTRICT 6 - BEACH The following condition shall be required: 1. Agreement encompassing proffers shall be recorded with the Clerk of Circuit Court and is hereby made a part of the record. ORDINANCE UPON AP PLICA TION OF SYKES REAL PROPERTIES, L.L.c. FOR A CONDITIONAL USE PERMIT FOR A BULK STORAGE YARD R0120734252 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Sykes Real Properties, L.L.c. for a Conditional Use Permit for a bulk storage yard on property located on the west side of Birdneck Road, approximately 650 feet south of Beautiful Street (GP IN 2417427222). DISTRICT 6 - BEACH The following conditions shall be required: 1. When the property is developed, the site layout shall be in substantial conformance with the Plan entitled, "Concept Plan Chatham Business Park V-7, " dated June 28, 2007, prepared by Gallup Surveyors & Engineers, Ltd. Said Plan has been exhibited to the City Council and is on file in the Planning Department. 2. In addition to the forty (40)-foot wide buffer and the six (6)100t high privacy fence depicted on the concept plan, Category II landscaping shall be installed within this buffer adjacent to lots N, M L, K, J, L H, G, F, E and D, also as depicted on the concept plan, December II, 2007 II - 56 - Item V.L.5o/b. PLANNING ITEM #57177 (Continued) 3. All outdoor lighting shall be shielded, deflected, shaded and focused to direct light down onto the premises and away from adjoining property. A Photometric Lighting Plan depicting such lighting shall be submitted to the City for review and approval with the final site plan submission. Said Lighting Plan shall be void of any wall-mounted lighting that directs light outward and upward. 4. Although depicted on the concept plan, the Public Works Department has indicated that this site will not have access to a median opening when the right-of-way improvements are completed along South Birdneck Road. All ingress/egress and right-of-way improvements shall be determined by the Public Works Department during final site plan review and shall be shown, as determined by the Public Works Department, on the final site plan prior to its approval. 5. Planting surrounding any freestanding sign located on the east side of the property near South Birdneck Road shall be double the minimum requirement required by the City Zoning Ordinance. 6. When the property is developed, all construction activities and any other operations conducted on an area of the property which is not completely enclosed (i. e. not within a building) shall be limited to between the hours of 7:00 AM and 8:00 PM Theses Ordinances 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 Eleventh of December Two Thousand Seven Voting: 8-2 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M Dyer, 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: Barbara M Henley and Reba S. McClanan Council Members Absent: William R. "Bill" DeSteph December 11, 2007 II CITY OF VIRGINIA BEACH INTER-OFFICE CORRESPONDENCE In Reply Refer To Our File No. DF-6853 DATE: November 29, 2007 TO: FROM: Leslie L. Lill~"l \ \ 8, Kay Wilso~'\J DEPT: City Attorney DEPT: City Attorney RE: Conditional Zoning Application: Sykes Real Properties The above-referenced conditional zoning application is scheduled to be heard by the City Council on December 11 , 2007. I have reviewed the subject proffer agreement, dated July 27,2007 and have determined it to be legally sufficient and in proper legal form. A copy of the agreement is attached. Please feel free to call me if you have any questions or wish to discuss this matter further. 8 KW/ks Enclosure cc: Kathleen Hassen , ,II PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS SYKES REAL PROPERTIES, L.L.C., a Virginia limited liability company TO (PROFFERED COVENANfS, RESTRICTIONS AND CONDmONS) CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia THIS AGREEMENT, made this 2'1h day of July, 2007, by and between SYKES REAL PROPERTIES, L.L.C., a Virginia limited liability company, Grantor; and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, Grantee. WITNESSETH: PREPARED BY: WHEREAS, the Grantor is the owner of certain property located in the Beach District of the City of Virginia Beach, containing approximately 11,337.9 square feet that is zoned R-10 Residential District ("Eastern Portion") and is a portion of a larger parcel containing approximately 1.159 acres, which larger parcel is described in Exhibit "A" attached hereto and incorporated herein by this reference (the "Property"); and WHEREAS, the Grantor has initiated a conditional amendment to the Zoning Map of the City of Virginia Beach, Virginia, by petition addressed to the Grantee so as to change the Zoning Classification of the Eastern Portion from R-10 Residential District to Conditional 1-1 Industrial District; 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 WHEREAS, the Grantor acknowledges that the competing and sometimes incompatible development of various types of uses conflict and that in order to permit I 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 Grantor's proposed rezoning, 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 Grantor's rezoning application gives rise; and m Sms. ROURDON, D AHfRN & lM. P.C GPIN: 2417-42-7222 1 1.11 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 covenant and agree 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. When the Property is developed, it will be used for vehicular ingress and egress, landscaping, drainage, utilities and entrance signage to an adjoining parcel substantially as depicted on the exhibit entitled, "CONCEPT PLAN CHATHAM BUSINESS PARK V-7 AN ECO-INDUSTRIAL PARK A COMMERCIAL DEVELOPMENT PROJECT BY J.M. SYKES, INC. VIRGINIA BEACH, VA", dated Dec. 8, 2006, Rev. June 28, 2007, prepared by Gallup Surveyors & Engineers, Ltd., which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning (hereinafter "Concept Plan"). 2. Further conditions may be required by the Grantee during detailed Site Plan and/ or Subdivision review and administration of applicable City Codes by all cognizant City agencies and departments to meet all applicable City Code requirements. All references hereinabove to the R-I0 and I-I Districts 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 Grantors 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 PREPARED BY: of a comprehensive implementation of a new or substantially revised Zoning Ordinance Isms. ROURDON, until specifically repealed. The conditions, however, may be repealed, amended, or varied I AHrnN & lIVY. p,c. by written instrument recorded in the Clerk's Office of the Circuit Court of the City of 2 II 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. The Grantors covenant and agree 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, 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, suit, or proceeding; (2) The failure to meet all conditions and restrictions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) If aggrieved by any decision of the Zoning Administrator, made pursuant to these provisions, the 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. PREPARED BY: GI SITrs, ROURDON, II AHrnN &. lIVY. P.L 3 WITNESS the following signature and seal: Grantor: Sykes ~eal Properties, L.L.C. .lW~i~~ ~ James M. Sykes (SEAL) STATE OF VIRGINIA CI1Y OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this day of July, 2007, by James M; Sykes, Pft5i1l~2.x~J1xMc~fCmcqca:iU8ioiar.mpCilIa1iu~%mkn Member of Sykes Real Properties, L.L.C., a Virginia limited liability company, Grantor. ~/:J ~J( ml-~ ./ Notary Public My Commission Expires: August 31, 2010 Notary Registration No.: 192628 4 PREPARED BY: B SW[S, ROURDON. I AHrnN & 11:VY. P.c. EXHIBIT "A" ALL THAT certain tract, piece or parcel of land, situate in the Lynnhaven Borough of the City of Virginia Beach, VIrginia, and known and designated as Parcel "E", 1.91 Acres on that certain plat entitled "Plat of Property of Gabor, Inc., Lynnhaven Borough, Virginia Beach, VIrginia, Scale: 1" = 200', June 1967", made by Frank D. Tarrall, Jr. and Associates, Surveyors and Engineers, which plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Map Book 72, at Page 40. LESS AND EXCEPT that portion of property taken by the City of Virginia Beach as shown upon plat recorded as Instrument No. 200502240029268. GPIN: 2417-42-7222 ConditionalRezonejSykes.JMjProffer 5 , 'II - 57 - Item V.L.6. PLANNING ITEM #57178 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED an Ordinance upon application of ANWARUL ISLAM and SHAHANA ISLAM for a Conditional Change of Zoning: ORDINANCE UPON APPLICATION OF ANWARUL ISLAM AND SHAHANA ISLAM FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM 0-2 OFFICE DISTRICT TO CONDITIONAL B-1 NEIGHBORHOOD BUSINESS DISTRICT Z012071203 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Anwarul Islam and Shahan a Islam for a Change of Zoning District Classification from 0-2 Office District to Conditional B-1 Neighborhood Business District on property located at 1308 and 1314 Kempsville Road (GPINs 1465481825; 1465481974). DISTRICT 2 - KEMPSVILLE The following condition shall be required: 1. Agreement encompassing proffers shall be recorded with the Clerk of Circuit Court and is hereby made a part of the record. This Ordinance shall be effective in accordance with Section 107 (f) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Eleventh of December Two Thousand Seven Voting: 10-0 (By Consent) Council Members Voting Aye: 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: William R. "Bill" DeSteph December 11, 2007 II CITY OF VIRGINIA BEACH INTER-OFFICE CORRESPONDENCE In Reply Refer To Our File No. DF-6850 DATE: November 29, 2007 FROM: Leslie L. Lilley B. KaYWiISOn~ DEPT: City Attorney TO: DEPT: City Attorney RE: Conditional Zoning Application: Anwarullslam and Shahan Islam The above-referenced conditional zoning application is scheduled to be heard by the City Council on December 11, 2007. I have reviewed the subject proffer agreement, dated October 11, 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/ks Enclosure cc: Kathleen Hassen ANW ARUL ISLAM and SHAHANA ISLAM, husband and wife, TO (pROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS) CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia THIS AGREEMENT, made this 11th day of October, 2007, by and between ANW ARUL ISLAM and SHAHANA ISLAM, husband and wife, parties of the fIrst part, Grantors, and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, party of the second part, Grantee. WITNESSETH: WHEREAS, the party of the first part is the owner of two (2) parcels of property located in the Kempsville District of the City of Virginia Beach, containing a total of approximately 1.927 acres, which parcels, as described in Exhibit "A" attached hereto and incorporated herein by this reference, are hereinafter referred to as the "Property"; and WHEREAS, the party of the fIrst part, as owners of the Property, has initiated a conditional amendment to the Zoning Map of the City of Virginia Beach, Virginia, by petition addressed to the Grantee, so as to change the Zoning ClassifIcations of the Property from 0-2 Office District to Conditional B-1 Neighborhood Business District; 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 WHEREAS, the Grantors acknowledge that the competing and sometimes incompatible uses conflict ~d that in order to permit differing uses on and in the area of GPIN: 1465-48-1974-0000 GPIN: 1465-48-1825-0000 Prepared by: Lucian B. Cox III, Esq. 1604 Hilltop West Executive Center, Ste 306 Virginia Beach, Virginia 23451 Telephone: (757) 502-4799 Fax: (757) 502-4830 II the Property and at the same time to recognize the effects of change, and the need for various types of uses, 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 cope with the situation to which the Grantors' rezoning application gives rise; and WHEREAS, the Grantors have voluntarily proffered, in writing, in advance of and prior to the public hearing before the Grantee, as a part of the proposed amendment to the Zoning Map, in addition to the regulations provided for in the B-1 Zoning District by the existing overall Zoning Ordinance, the following reasonable conditions related to the physical development, operation, and use of the Property to be adopted as a part of said amendment to the Zoning Map relative and applicable to the Property, which have a reasonable relation to the rezoning and the need for which is generated by the rezoning: NOW, THEREFORE, the Grantors, for themselves, their successors, 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 make 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 agree 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 and assigns, grantees, and other successors in interest or title: 1. When the Property is developed, it shall be developed substantially as shown on the exhibit A-I entitled, "DR. ANWARUL ISLAM PROPERTY 1308 AND 1314" and dated 06/27/07, which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning (hereinafter referred to as the "Site Plan"), 2. The exterior of the retail shops shown on the Site Plan shall be substantially similar in appearance to and shall utilize the external building materials as designated on the exhibits A-2, A-3, and A-4 entitled "1308 and 1314 KEMPSVILLE ROAD" which have been exhibited to the Virginia Beach City 2 II Council and are on file with the Virginia Beach Department of Planning (hereinafter referred to as the "Elevation Plan"). Any roof mounted mechanical equipment shall be screened from view. The bottom panels (rectangular panels) of the second floor windows on the east (rear side) of the building shall be of an opaque glass (the larger arched window panels can be regular glass). 3. When the property is developed, only freestanding monument style signage may be erected on the Property, constructed with a base matching the material and predominant color of the retail shops. All building mounted signage shall be channel letters on a raceway (i.e. no block signs) and only the lettering may be illuminated. 4. A photometric plan (i.e. lighting plan) for the parking area shall be submitted for review with the Site Plan. Lighting that is consistent with the property's proximity to residential dwellings shall be low level (i.e. both height and wattage, Any lighting plan will be thoroughly scrutinized prior to approval by the City to ensure not only that there is no spillover of lighting, but to ensure that it is appropriately designed for this commercial parking lot adjacent to the backyards of seven (7) residential homes. 5. The dumpster shall be located on the southern half of the property and must be setback a minimum of 200 feet from the rear or eastern property line of the subject property. The dumpster enclosure shall match the color and materials of the building exterior and shall be screened with landscaping. The servicing (i.e. pickup and tipping) of dumpsters on the Property shall not be permitted prior to 8:00 AM or after 4:00 PM. 6. An 8 foot solid privacy fence shall be installed along any property line shared with a residentially zoned property which does not current! y have a solid privacy fence as of the date of this proffer. The wooded area in the thirty-nine (39) foot wide buffer zone adjacent to the residential property located immediately east of the property will be maintained arId supplemented with a row of 4 to 5 foot high Leyland Cypress planted on ten foot (10') centers on the inside of the 8 foot solid privacy fence adjacent to the residentially zoned properties, An irrigation system shall be installed to maintain the Leyland Cypress and any of the landscaping in the buffer adjacent to the residential property. 7. At the time of submission of this proffer, no tenants for the property have been identified; however, use of the property will be limited to only those 3 II purposes permitted for B-1 Business Districts by the Municipal Code of the City of Virginia Beach, Virginia, Appendix A Zoning Ordinance, Article 9, Section 901. 8. Businesses that shall not be permitted on the property include a. Automobile repair establishments b. Automobile service stations c. Bars and nightclubs d. Any establishment serving beer, wine or alcoholic beverages e. Car wash facilities f. Flea markets g. Tatoo parlors 9. All retail/commercial establishments shall close by 10:00 PM. Further conditions may be required by the Grantee during detailed Site Plan review and administration of applicable City Codes by all cognizant City agencies and departments to meet all applicable City Code requirements. All references hereinabove to the B-1 Neighborhood Business District and to the requirements and regulations applicable thereto refer to the Comprehensive Zoning Ordinance and Subdivision Ordinance of the City of Virginia Beach, Virginia, in force as of the date of approval of this Agreement by City Council, which are by this reference incorporated herein. The above conditions, having been proffered by the Grantors 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 4 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. The Grantors covenant and agree 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, 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, suit, or proceeding; (2) The failure to meet all conditions and restrictions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) If aggrieved by any decision of the Zoning Administrator, made pursuant to these provisions, the Grantor shall petition the governing body for the review thereof prior to instituting proceedings in court; and (4) The Zoning Map may show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the Property, and the ordinances and the conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department, and they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and indexed in the names of the Grantor and the Grantee. 5 I, II WITNESS the following signatures and seals: Grantors: A c.JV L ~ (SEAL) Anwarul Islam ~~-- Shahana Islam (SEAL) STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this 17th day of October, 2007, by Anwarul Islam and Shahana Islam, Grantors. ~ Notary Registration No. 195238 Notary Public. Lucian B. Cox III _.A c; ~ / My Commission Expires: Feb. 28, 2010 .. '-;,t'-. ..~ ~ ..:-.. -" .-" ',.,'" ,." ~.-~. .~.' .::-..:~'~.'" ~ ..'" .-... ~.-"; :..:~~. ):) I ~..,.. ., ..~ ... - . ~ 6 ,II EXHmIT A PROPERTY DESCRIPTION Parcell: ALL THAT certain tract, piece or parcel of land, with the improvements thereon and the appurtenances thereunto belonging, lying, situate and being in the City of Virginia Beach, Virginia, and being known, numbered and designated as Parcel 044 as shown on that certain plat entitled "R/W Acquisition Plat, KEMPSVILLE ROAD PH I for CITY OF VIRGINIA BEACH", which said plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 146 at Page 40. GP~: 1465-48-1974-0000 Parcel 2: ALL THAT certain tract, piece or parcel of land, with the improvements thereon and the appurtenances thereunto belonging, lying, situate and being in the City of Virginia Beach, Virginia, and being known, numbered and designated as Parcel 045 as shown on that certain plat entitled "R/W Acquisition Plat, KEMPSVILLE ROAD PH I for CITY OF VIRGINIA BEACH", which said plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 146 at Page 40. GP~: 1465-48-1825-0000 7 - 58 - Item V-L.1. APPOINTMENTS ITEM #57179 BY CONSENSUS, City Council RESCHEDULED the following APPOINTMENT: COMMUNITY SERVICES BOARD RESORT ADVISORY COMMISSION VIRGINIA BEACH COMMUNITY DEVELOPMENT CORPORATION - VBCDC WORKFORCE HOUSING ADVISORY COMMITTEE December 11, 2007 II - 59 - Item V-I. 2. ADD-ON APPOINTMENTS ITEM #57180 Upon NOMINATION by Council Lady Wilson, City Council APPOINTED: Dorothy L. Wood Unexpired term through 12/31/08 HAMPTON ROADS ECONOMIC DEVELOPMENT ALLIANCE - HRDEA Voting: 9-0 Council Members Voting Aye: Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf John E. Uhrin, Rosemary Wilson and James I. Wood Council Members Voting Nay: None Council Members Absent: William R. "Bill" DeSteph and Ron A. Villanueva, December 11,2007 I II - 60- Item V-D. ADJOURNMENT ITEM # 57181 Mayor Meyera E. Oberndorf DECLARED the City Council Meeting ADJOURNED at 7:11 P.M. ~__f2-v-L~!L~___ Beverly 0. Hooks, CMC Chief Deputy City Clerk a.~ ~~ges Fraser, MMC City Clerk Meyera E. Oberndorf Mayor City of Virginia Beach Virginia December 11, 2007