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JULY 7, 2009 CITY OF VIRGINIA BEACH "COMMUNITY FOR A LIFETIME" CITY COUNCIL M..iYOII WfLUAM f) SESSOMS .JR, AHarge VI< 'F MAroll U)(!I.)' R. JONIiS. Bayslde - f),strlCt ~ Gl.hNN II. IJAVIS, !lose Hall- [)JSlrlc/ 3 WIUJAM R. IJeSTIiI'H, At-Large HARRY Ii IJIEZEL, KempsvIlle - Dtstrlct 2 R( JBhRT M. DYER" ('enterville - DIstrict I BARBARA M HENLEY, Prtncess Anne n Dlstrtct 7 JOHN E. UHRiN, Beach District 6 RUN A. VILLANUEVA, At-Large RUSEMARY WILSON, At-Large JAMES L. WOOD, I,y"nhaven -District 5 CITY COUNCIL APPOINTEES CITY MANAGER- .fAMES K SPORE CITY ATTORNEY MARK D. STILES CIlY ASSESSOR .fERALD BANAGAN CITY AUDITOR - !.YNDON S REMIAS C1TYCLliRK RUTH HODGES FIIASER, MMC CITY COUNCIL AGENDA 7 JULY 2009 I. CITY MANAGER'S BRIEFING - Conference Room - A. HEAL TH CARE PLAN and RATES for 2010 Susan Walston, Deputy City Manager II. CITY COUNCIL LIAISON REPORTS III. CITY COUNCIL COMMENTS IV. CITY COUNCIL AGENDA REVIEW V. INFORMAL SESSION - Conference Room - A. CALL TO ORDER - Mayor William D. Sessoms, Jr. B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION CITY HALL BUILDING 2401 COURTHOUSE DRiVE VIRGINIA BEACH, VIRGINIA 23456-8005 PHONE:(757) 385-4303 FAX (757) 385-5669 E-MAIL Ctycncl@vbgov.com 3:30 PM 5:00 PM VI. FORMAL SESSION AGENDA - Council Chamber - 6:00 PM A. CALL TO ORDER - Mayor William D. Sessoms, Jr. B. INVOCATION: Rabbi Howard Mandell Temple Emanuel C. PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA D. ELECTRONIC ROLL CALL OF CITY COUNCIL E. CERTIFICATION OF CLOSED SESSION F. MINUTES 1. INFORMAL and FORMAL SESSIONS June 23, 2009 G. FORMAL SESSION AGENDA H. MAYOR'S PRESENTATION 1. RESOLUTIONS HONORING MEMBERS OF THE MINORITY BUSINESS COUNCIL a. Prescott Sherrod b. Luis A. Rivera I. PUBLIC HEARING 1. LEASE OF CITY PROPERTY Friends of Ferry Plantation House - 4136 Cheswick Lane J. CONSENT AGENDA , I K. ORDINANCES/ RESOLUTIONS 1. Ordinance to AUTHORIZE the City Manager to execute a five (5) year Lease with Friends of the Ferry Plantation House, Inc. at 4136 Cheswick Lane 2. Ordinance to AUTHORIZE temporary encroachments into a portion of City-owned rights- of-way for JOHN F. and PAIGE C. FERGUSON re maintenance of an existing front porch and steps, two brick walks and two stone walks at 49th Street and Myrtle Avenue DISTRICT 5-LYNNHAVEN 3. Ordinance to ACCEPT a Cooperative Agreement for legal services between City Council and the School Board and AUTHORIZE Mayor Sessoms to execute said Agreement for FY 2010 4. Ordinance to DONATE a 1986 Bookmobile to the Pasquohink-Camden County Library in Elizabeth City, North Carolina 5. Resolution to AUTHORIZE and DIRECT the City Manager to execute a contract with the Virginia Department of Health re Soil Drainage Management 6. Resolution to RE-ADOPT the procedures for considering unsolicited requests from private entities re qualifying projects under the Public-Private Education Facilities and Infrastructure Act of 2002 (PPEA) that includes recent legislative updates; and, DIRECT the City's Purchasing Agent to make these procedures available to the public by posting them in the Purchasing office and on the City's website. L. PLANNING 1. Application of BPMS CASCADES, LLC & BPMS CASCADES 2, LLC for a Modification to delete Proffer No.4 and allow 24-hour operation for retail uses at Centerville Turnpike and Lynnhaven Parkway. (Approved by City Council on February 12,2008) DISTRICT 1 - CENTERVILLE DISTRICT Recommendation APPROVAL 2. Application of PUNGO AIRFIELD, L.L.C. for a Conditional Use Permit re a recreational facility of an outdoor nature (car racing, paintball) and a mulch facility at 1848 Princess Anne Road (Deferred by City Council June 9, 2009). DISTRICT 7 - PRINCESS ANNE DISTRICT Recommendation APPROVAL 3. Application of RAMON P. and CAROL J. JOYCE for a Conditional Use Permit re a residential kennel for a maximum of five (5) adult dogs at 1064 Salisbury Drive. DISTRICT 6 ~ BEACH Recommendation APPRO V AL 'I 'I 4. Application of EVERETTE LEE BROWN, for a Conditional Use Permit re a bulk storage yard for construction equipment and recreational vehicles at 1333 Dukes Lane near Great Neck Creek. DISTRICT 6 - BEACH Recommendation APPRO V AL 5. Application of WILLIAM E. and MICHAEL W. CHAPLAIN, TRUSTEES OF THE CHAPLAIN LAND TRUST for a Change of Zoning District Classification from AG-2 Agricultural District to Conditional B-2 Community Business District at 1073 Princess Anne Road near Mill Landing Road. DISTRICT 7 - PRINCESS ANNE DISTRICT Recommendation APPROVAL 6. Ordinance to REPEAL 91611.1 and AMEND 91618 ofthe City's Coastal Primary Sand DUDe Zoning Ordinance re construction of bulkheads in the Sandbridge Beach Subdivision. DISTRICT 7 - PRINCESS ANNE DISTRICT Recommendation APPROV AL M. APPOINTMENTS HEALTH SERVICES ADVISORY BOARD HISTORIC PRESERVATION COMMISSION PARKS and RECREATION COMMISSION N. UNFINISHED BUSINESS O. NEW BUSINESS P. ADJOURNMENT ********************************** PUBLIC COMMENT Non-Agenda Items Each Speaker will be allowed 3 minutes and each subject is limited to 3 Speakers ********************************** Agenda 7/7/09st www.vbgov.com I , ~ I COUNCIL SCHEDULE FOR JUL Y AND AUGUST Jul Planning Virginia Beach City Council Will Host a PUBLIC MEETING 7:00-8:30 PM THURSDAY, AUGUST 13TH Virginia Beach Convention Center Purpose: Discuss 2010 General Assembly Legislative Agenda ******** If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 385-4303 *********** , I - 1 - MINUTES VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia July 7, 2009 Mayor William D. Sessoms, Jr., called to order the CITY COUNCIL BRIEFING re HEALTH CARE PLAN and RATES FOR 2010 in the City Council Conference Room, Tuesday, July 7, 2009, at 3:30 P,M Council Members Present: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Absent: None July 7, 2009 - 2 - CITY COUNCIL BRIEFING HEALTH CARE PLAN and RATESfor 2010 ITEM # 58987 3:30 P.M. The City Manager advised the Health Care Plan and Ratesfor 2010 is afollow-up to the Briefing on June 16, 2009. City Council directed the staff to review different concepts which might have the impact of reducing the cost of coverage for families with dependents and also provide direction not to increase the GASB liability or cost. The City Manager advised Susan Walston, Deputy City Manager; Ken Jeffries - Mercer Health and Benefits LLC; and, Linda Matkins - Consolidated Benefits, will provide information. Susan Walston provided a "recap "from the City Council Workshop of June 16, 2009: ~ 2008 Plan Year Results 4% Increase in expenses from 2007 Per Enrollee Per Year (PEPY) expense of$6, 068, upfrom $5,839 (2007) ~ 2009 Plan Year Projection o 7% increase in expenses from 2008 Per Enrollee Per Year (PEPY) expense increases to $6,491, upfrom $6,068, (2008) ~ 2010 Plan Year Projection 7% increase in expensesfrom 2009 o Per Enrollee Per Year (P EPY) expense increases to $6,940, up from $6,491 (2009) Plan Design Recommendations ~ No changes to HMO, P PO, Retiree Point of Service (POS) ~ Create High Deductible Health Plan (HDHP) with a Health Savings Account (HAS) o In-network deductible $1,200/$2,400 In-network out-of-pocket $5,950/$11,900 Preventive coverage in-network 100% $500 Employer Contribution to Health Savings Account (HAS) City Council had requested more information and discussion re: 2010 Employer Contribution and Enrollee Rate Options ~ Assumptions: Enrollment level from 2009 o Annual Employer Contribution of$5, 400 per Enrollee Projected claims trend 7% ~ Options: Employee Alternative Employee Alternative Modified (to reflect the Virginia Beach Schools' position of no change)** Benefits Executive Committee (BEC) Flat Rate Revised Benefits Executive Committee (BEC) Flat Rate **As of Thursday, July 2,2009, this was the preferred option of the Employee Health Care Committee. July 7, 2009 II - 3 - CITY COUNCIL BRIEFING HEALTH CARE PLAN and RATESfor 2010 ITEM # 58987 (Continued) Susan Walston advised employer contributionsfrom the Year 2000. 2000 2001 2002 2003 two (2) increases (January) { July further increased to: $2,280. $2,400 $2,520 $3,155 $3,350. $3,689 $4,169. $4,585 $5,225 $5,400. $5,400 $5,400 2004 2005 2006 2007 2008 2009 2010 (recommended) Ken Jeffries - Mercer Health and Benefits LLC, presented information re the various Alternatives: Sohools Tier: Aotlve" HMO' Employee Employee & Child Employee & Children Employee & Spouse Em 10 ee & Famil Double Employee Double Famil Total School CI Tier: Aotlve" HMO' Employee Employee & Child Employee & Children Employee & Spouse Em 10 ee & Famil Double Employee Double Famil Total CIl 4,557 $5,400 $10 $4,130 $25 $15 150% 1,120 $5,400 $78 $5,400 $78 $0 0% 234 $5,400 $290 $6,333 $212 ($78) -27% 701 $5,400 $261 $6,063 $206 ($55) -21% 725 $5 400 $501 $7 605 $317 $184 -37% 209 $10,800 $20 $7,935 $50 $30 150% 401 $10,800 $51 $10,389 $85 $34 67% 7947 $46 207 800 $9 263 046 $41 938 706 $8 041663 $1 200 000 2,816 $5,400 $25 $4,130 $25 $0 0% 792 $5.400 $78 $5,400 $78 $0 0% 127 $5,400 $290 $6,333 $212 ($78) -27% 489 $5,400 $261 $6,063 $206 ($55) -21% 615 $5,400 $501 $7,605 $317 $184 -37% B4 $10.800 $50 $7,935 $50 $0 0% 250 $10800 $51 $10,389 $85 $34 67% 6,173 $29,737,800 $7,462,933 $27616,966 $6,766,860 $1 700000 13,120 $76,946,600 $16,726,979 $69,666,662 $13,808,412 ($2,800,000) I Grand Total .. For illustrative purposes; HMO actives account for 90% of total enrollment Total (All Plans) Estimated Summary Total EE Premium Cost ER Contribution Remalnlna ER Subsidy Total Annual Rate Plan Expense Margin EE as % of Total Annual Rate ER as % of Total Annual Rate ... Updated with recent experience All Figures Estimates & Preliminary 2009 Current** 2010 Proposed $19,700,000 $16,800,000 $85,900,000 $79,700,000 !2 $6.800 000 $105,600,000 $103,300,000 $96,600,000 $103,300,000 $9,000,000 $0 19% 16% 81% 84% 2010 Employee Alternative: Pros & Cons ~ Pros: o No increase in health premiums for individual (City-only) or Employee (EE)+ Child tiers; premium cost decrease to EE + Children/Spouse/Family tiers Plan more affordable to employees with dependents o Premium rates more in line with regional cities o Utilizes current budget amount for employer contributions July 7,2009 ~ Cons: j I - 4 - CITY COUNCIL BRIEFING HEALTH CARE PLAN and RATESfor 2010 ITEM # 58987 (Continued) 2010 Employee Alternative: Pros & Cons (Continued) Does not recognize Schools position of "no change" in 2010; increase in health premium for individual (Schools-only) o Premiums may vary more in the future when set at full projected costs o Moderate increase to GASB annual required payment (approximately $500,000) due to decrease in retiree + spouse premium payments May increase retiree enrollment due to reduced plan premiums Significant premium rate decreases on Family tier may dramatically increase enrollment in that tier Mr, Jeffries referenced comparable plans and Family rates to Chesapeake of$417 and Norfolk of$401. Sohool. Ti.r: Aotlv." HMO. Employee 4,557 $5,400 $10 $4,130 $25 $15 150% Employee & Child 1,120 $5,400 $78 $5,400 $78 $0 0% Employee & Children 234 $5,400 $290 $6,333 $212 ($78) -27% Employee & Spouse 701 $5,400 $261 $6,063 $206 ($55) -21% Em /0 e & Famil 725 $5,400 $501 $7 605 $317 $184 -37% Double Employee 209 $10,800 $20 $7,935 $50 $30 150% Double Famil 401 $10,800 $51 $10,389 $85 $34 67% Total Sohool 7947 $46 207,800 $9 263 046 $41 938 706 $8 041 663 $1 200 000 2,816 $5,400 $25 $4,130 $25 $0 0% 792 $5,400 $78 $5,400 $78 $0 0% 127 $5,400 $290 $6,333 $212 ($78) -27% 489 $5,400 $261 $6,063 $206 ($55) -21% 615 $5,400 $501 $7,605 $317 $184 -37% 84 $10,800 $50 $7,935 $50 $0 0% 250 $10,800 $51 $10,389 $85 $34 87% 6,173 $29,737,800 $7,462,933 $27 616 966 $6.766 860 $1,700,000 IGrand Total 13,120 $76,946,600 $16,726,979 $69,666,662 $13,808,412 ($2,900,000) * For illustrative purposes; HMO actives account for 90% of total enrollment Total (All Plans) Estimated Summary Total EE Premium Cost ER Contribution Remalnlna ER Subsldv Total Annual Rate Plan Expense Margin EE as % of Total Annual Rate ER as % of Total Annual Rate '*. Updated with recent experience All Figures Estimates & Preliminary 2009 Current" 2010 Proposed $19,700,000 $16,800,000 $85,900,000 $79,700,000 12 $6.800.000 $105,600,000 $103,300,000 $96,600,000 $103,300,000 $9,000,000 $0 19% 16% 81% 84% 2010 Employee Alternative Modified - No Change in Schools from 2009: Pros & Cons ~ Pros: No Increase to employee health premiums; premium cost decrease to EE + Children/Spouse Family tiers (City-only) o Plan more affordable to employees with dependents o Premium rates more in line with regional cities Utilizes current budget amount for employer contributions Recognizes Schools' position of "no change" in 2010 July 7, 2009 I i I~ I - 5 - CITY COUNCIL BRIEFING HEALTH CARE PLAN and RATESfor 2010 I ITEM # 58987 (Continued) 2010 Employee Alternative Modified - No Change in Schools from 2009: Pros & Cons (Continued) ~ Cons: Premiums may vary more in the future when set at full projected costs o Slight increase to GASB annual required payment (approx $200,000) No City margin in 2010 in the healthfund o Significant premium rate decreases on Family tier may dramatically increase enrollment in that tier 2010 Benefits Executive Committee (BEC) Flat Rate ($5,400) Revised with Use of City Margin - No Chan e to Schools rom 2009 Schools Tier: Actives % Chan e HMO' Employee 4,557 $5,400 $10 $5.400 $10 $0 0% Employee & Child 1,120 $5.400 $78 $5.400 $78 $0 0% Employee & Children 234 $5,400 $290 $5,400 $290 $0 0% Employee & Spouse 701 $5.400 $261 $5.400 $261 $0 0% Em 10 e & Famil 725 $5.400 $501 $5.400 $501 $0 0% Double Employee 209 $10,800 $20 $10,800 $20 $0 0% Double Famjl 401 $10,800 $51 $10,800 $51 $0 0% Total School 7,947 $46,207,800 $9,263,045 546,207,800 $9 263,045 $0 Ci Tier: Actives % Chan e HMO' Em ployee 2,816 $5.400 $25 $5,400 $25 $0 0% Employee & Child 792 $5,400 $78 $5,400 $78 $0 0% Employee & Children 127 $5.400 $290 $5,400 $244 ($46) -16% Employee & Spouse 489 $5.400 $261 $5,400 $229 ($33) -12% Em 10 ee & Famil 615 $5.400 $501 $5.400 $392 $108 -22% Double Employee 84 $10,800 $50 $10,800 $50 $0 0% Double Famil 250 $10,800 $51 $10800 $51 $0 0% TotalCit 5,173 $29,737,800 $7,462,933 $29,737 800 $6,402,934 $1,100,000 IGrand Total 13,120 $75,945,600 $16,725,979 $76,946,600 $16,666,979 ($1,100,000) ... For illostrative purposes; HMO actives account for 90% of total enrollment TQtal (All PI."s) E.stinwt.d Summery Total EE Premium Cost ER Contribution R.malnlna ER Subsidy Total Annual Rate Plan Expense Margin EE as % of Total Annual Rate ER as % of Total Annual Rate U Updated with recenl experience All Figures Estimates & Preliminary 2009 Current"'... 2010 Propos.d $19,700,000 $18,600.000 $85,900,000 $85,900,000 12 12 $105,600,000 $104,500,000 $96,600,000 $103,300,000 $9,000.000 $1,200,000 Note: $1,20Q,Ooo attributable to Schools margin 19% 18% 81% 82% 2010 Benefits Executive Committee (BEC) Flat Rate ($5,400) Revised with Use of City Margin - No Change to Schools from 2009: Pros & Cons ~ Pros: o No Increase to employee health premiums; premium cost decrease to (Employee) EE + Children/Spouse/Family tiers (City-only) Plan more affordable to employees with dependents Premium rates more in line with regional cities ER (Employer) contributions and EE (Employee) payments cover plan expenses Utilizes current budget amount for employer contributions Recognizes Schools' position of "no change" in 2010 and maintains their portion of margin ($1.2-MlLLION) o o o July 7, 2009 , I - 6 - CITY COUNCIL BRIEFING HEALTH CARE PLAN and RATES for 2010 ITEM # 58987 (Continued) 2010 Benefits Executive Committee (BEC) Flat Rate ($5,400) Revised with Use of City Margin - No Change to Schools from 2009: Pros & Cons (Continued) ~ Cons: Premiums may vary more in the future when set at full projected costs o Slight increase to GASB annual required payment (approx $100,000) o No City margin in 2010 in the healthfund Significant premium rate decreases on Family tier may dramatically increase enrollment in that tier Sohools Tier: Actives % Chan e HMO' Employee 4,557 $5,400 $10 $5,400 $10 $0 0% Employee & Child 1,120 $5,400 $78 $5,400 $78 $0 0% Employee & Children 234 $5,400 $290 $5,400 $290 $0 0% Employee & Spouse 701 $5,400 $261 $5,400 $261 $0 0% Em 10 ee & Famil 725 $5,400 $501 $5,400 $501 $0 0% Double Employee 209 $10,800 $20 $10,800 $20 $0 0% Double Famil 401 $10,600 $51 $10800 $51 $0 0% Total Sohool 7,947 $46,207,800 $9,263,045 $46 207 800 $9 263 045 $0 I 2009: Current I 2010: $6,400 EE Premium Cost I ProjeGted I , I EE Monthly I I EE Monthly I I CIty Tier: AGtlyes Enrollment ER Contribution Premium Cost ER Contribution Premium Cost $ Chanoe % Change HMO' Employee 2,816 $5,400 $25 $5,400 $25 $0 0% Employee & Child 792 $5,400 $78 $5,400 $76 $0 0% Employee & Children 127 $5,400 $290 $5,400 $290 $0 0% Employee & Spouse 489 $5,400 $261 $5,400 $261 $0 0% Employee & Family 615 $5,400 $501 $5,400 $501 $0 0% Double Employee 64 $10,800 $50 $10,600 $50 $0 0% Double Familv 250 $10,600 $51 $10,600 $51 $0 0% Total City 5,173 $29,737,800 $7,462,933 $29,737,800 $7,462,933 $0 I Grand Total 13,120 $75,945,600 $16,725,979 $75,945,600 $16,726,979 $0 .. For illustrative purposes; HMO actives account for 90% of talql enrollment Total (All PI.na) Estimated Summ.ry Total EE Premium Cost ER Contribution Remalnlna ER Subsldv Total Annual Rate Plan Expense Margin EE as % of Total Annual Rate ER as % of Total Annual Rate U Updated with recelll experience All Figures Estimates & Preliminary 2008 C,,~nt.... 2010 Proposed $19,700,000 $19,700,000 $85,900,000 $85,900,000 !2 !2 $105,600,000 $105,600,000 $96,600,000 $103,300,000 $9,000,000 $2,300,000 Note: $2,300,000 attributable to City and Schools margin 19% 19% 81% 81% 2010 BEC Flat Rate - No Change to City & Schools/rom 2009: Pros and Cons ~ Pros: No increase to employee health premiums Employer (ER) contributions and Employee ( EE) payments cover plan expenses Utilizes current budget amount for employer contributions Recognizes Schools' position of "no change" in 2010 Maintains a small margin in 2010 in healthfund (City and Schools) o No additional impact to GASB liability ~ Cons: o Premiums may vary more in the future when set at full projected costs Not in line with regional cities; high enrollee cost for Family coverage o July 7, 2009 '. I - 7 - CITY COUNCIL BRIEFING HEALTH CARE PLAN and RATES for 2010 ITEM # 58987 (Continued) Health Fund ~ Balance Balance 5/31/09 o Less Prudent Reserve GASB ARC* 6/09 GASB ARC 6/10 Remaining Balance $33.5-MlLLION $8. OM $2. OM $8.4M ($18.4M) $15.1-MILLION *Annual Required Contribution ~ 5-Year Projections o Without a Margin/Surplus built into annual plans Balance below Prudent Reserve by 2013 o With 2% Margin/Surplus built into annual plans Recommendations ~ Flat Rate Option at 2009 premium rates ~ Revisit Employer/Employee contribution strategy for Plan Year 2011 ~ Rationale No increase in premium rates for HMO, P PO, Retiree POS No increase in employer contribution No additional disparities between City and Schools No required use of Health Fund balance to support annual plan costs o No additional impact to GASB liability Uses health fund balance, rather than the General Fund, to cover GASB annual required payment in the short term Ms. Walston distributed the comparisons of Comparable Benefit plans of Virginia Beach, Chesapeake and Norfolk (Schools), with the payments of Norfolk City handwritten (effective October 2009), Chesapeake's new Plan is effective in August. The two (2) Norfolk City columns reflect a lower amount, if the employees take the Personal Health Profile and the second column reflects the payments if the employees do not. This draft is hereby made a part of the record Councilman Diezel requested to view the Employee Plan because of the impact on the families. Councilman Diezel is still not clear relative GASB and the fear is a better plan will increase more enrollment and liability. Councilman Diezel has no idea what the Federal Government will do with the Health Care industry not what the impact to the City would be. Ms, Walston advised, because the City is one of the few self-insured, Virginia Beach has the option to provide the GASB payments through the Health Care fund as opposed to the Operating Budget. The other localities that are fully insured do not have a self insured health plan to draw the GASB payment. They are covering the GASB payment out of Reserves, Operating Budget or part of the premiums. There was some support for Councilman Davis's plan from the worliforce and Retirees re willingness to increase employee only, but this support was not overwhelming. In light of no pay increases, it was suggested to be reviewed in 2011. July 7, 2009 '. I - 8 - CITY COUNCIL BRIEFING HEALTH CARE PLAN and RATESfor 2010 ITEM # 58987 (Continued) The City Manager advised the Health Savings Plan is an attractive plan for the future. Council Lady Wilson does not concur with this plan involving families and children. It might be beneficial to a single individual. Councilman DeSteph advised he would not support any plan increasing employee and child or children. Councilman Wood requested the region comparison sheet be completed and provided to all Members of City Council. This information shall be provided. Mayor Sessoms stressed maintaining the quality of life and City Council will discuss the City's major issues during the Retreat August 3/4, 2009. The burden of upcoming years cannot be continued to be placed on the City employees. Other revenue sources might need to be examined. The Health Care Plan shall be scheduledfor a vote on August 11,2009. July 7, 2009 " I - 9 - CITY COUNCIL LIAISON REPORTS 4:30 P.M. ITEM # 58988 VIRGINIA AQUARIUM and MARINE SCIENCE CENTER Council Members Wood and DeSteph, Liaisons to the Virginia Aquarium and Marine Science Center, distributed their report, which is hereby made a part of the record. The general contractor expects to be completed by July 17, 2009, except for interactive exhibit installation which is scheduled for July 13 to July 24, 2009. These hands-on exhibits were recently inspected and are of high quality. Last week the contractor drained the aquariums so acrylic polishing repairs could be completed. Most of the dry habitats and aquariums (exhibit side) are ready for staff to take over. The Life Support Systems (LSS) behind the scenes for the Aquariums will be checked out this week and, assuming no problems suiface, will be accepted along with the associated Aquariums this week. An operating LSS for each Aquarium is necessary for staff to begin their animal preparatory work. A document of substantial completion is being prepared which will be used to formally accept the individual areas and list any outstanding punch list items. Once the aquarium systems are in the hands of the Aquarium staff. a date can be set for Grand Opening as the acclimation period ranges from eight to fourteen weeks. ITEM # 58989 CITY AUDITOR UPDATE Council Members Wood and Uhrin, Liaisons to the City Auditor, distributed their report. Said report is hereby made a part of the record. The City Auditor provided a status update of the FY 2009 Audit Schedule and presented his proposed FY 2010 Audit Schedule. ITEM # 58990 Councilman Wood distributed a memorandum re: Tour of the Noifolk Light Rail alignment. On Thursday, July 23, 2009, Hampton Roads Transit (HRT) will be conducting a tour of the light rail alignment in Norfolk, which extends from the area around Sentara Norfolk General to the Virginia Beach city line at Newtown Road. The tour will start promptly at 11:30 A.M from the HRT southside facility, located at 1500 Monticello Avenue in Norfolk. As the City moves forward, Councilman Wood believes it might be beneficial for the City Council to view the construction process and the technology being used. If you are interested in attending, please contact Lou Ramos at 222-6100 or lramos@hrtransit.org. Please contact him no later than Friday, July Tenth. July 7, 2009 "II III - 10- CITY COUNCIL LIAISON REPORTS ITEM # 58991 TECHNOLOGY UPDATE Council Members Davis and Villanueva, Liaisons, distributed the Technology Update, which is hereby made a part of the record. Councilman Davis referenced the Enterprise Content and Records Management (ECRM) - CIP 3.209. The Library and Communications and Information Technology (ComIT) departments are working with e Visory Consulting to develop a strategic and tactical framework for Enterprise-wide Content and Records Management (ECRM). The blueprint will form the basis for acquisition of an Enterprise Content and Records Management system. The ECRM initiative will assist the City in achieving the following strategies: The reduction of paper will be a positive contribution to making Virginia Beach a GREEN leader Easily accessible information will allow members to deliver cost effective services Support implementation of workflow, while increasing efficiency Enhance collaboration between departments The Office Communicator/Live Meeting Deployment have been deployed to all City desktops. These software products are components of the City's Microsoft Enterprise Agreement that encompasses much of the Microsoftware installed on City computers, such as the Windows operating system, Office 2007, Outlook email, file/print features, SQL data features and other system management products. July 7, 2009 " I - 11 - CITY COUNCIL COMMENTS ITEM # 58992 4:35 P.M. Councilman DeSteph advised Saturday, July 11, 2009, is "Shore Drive Day" and "Share the Road Awareness". There are many events scheduled, including a bike ride, environmental clean-ups and beautification from 9:00 A.M to NOON ITEM # 58993 Mayor Sessoms advised the 2009 All-Star Game is scheduled for July 14, 2009, at St. Louis Busch Stadium. The rosters are set, with the exception of one final spot for each team. Balloting will continue until 4:00 P.M on Thursday, July 9,2009. Mayor Sessoms is declaring" Vote for Mark Reynolds Day" in honor of our hometown son being one of five players eligible for the remaining roster spot on the National League All-Star Team. Mark Reynolds is a 2001 graduate of First Colonial and later starred for University of Virginia, playing for the Cavaliers from 2002 to 2004. He was drafted by the Diamondbacks in the 16th Round of the r-Year Player Draft in 2004. Mark played on USA Baseball's national team in 2006 that won the gold medal and qualified the United States for the 2008 Beijing Olympics after batting .320 with a team-bestfour home runs and eight (8) RBIs. Three (3) Major League players from our region have already been selected to the All-Star National League team, including Diamondbacks' teammate Justin Upton, New York Mets' third baseman David Wright, both of Norfolk and Washington Nationals third baseman Ryan Zimmerman of Virginia Beach ITEM # 58994 Councilman DeSteph referenced the City Council parking issue (City Hall's North and West parking lots). Councilman DeSteph advised for every Planning Commission meeting, there are individual signs "Reserved: Planning Commission ", on the West lot for every member. Councilman DeSteph suggested during City Council Sessions, the signs indicate "Reserved: City Council". The signs on the back (North) lot could be removed. Council Lady Henley advised that several years ago the City Council decided Council Members would park in the back of Building I - City Hall. This was to allow the adjacent parking lot at the side of City Hall to be available for the public. At the present time, Council Members Henley and Villanueva are the only Members using the back parking lot. Three spaces are reserved throughout the week for City Council Members who visit the Municipal Center. Mayor Sessoms suggested the parking remain "as is ". ITEM # 58995 Councilman Villanueva congratulated the City Manager, Mayor and Council Members for a terrific Fourth of July. Cindy Curtis, Director of Parks and Recreation, and her staff are to be complimented concerning the superb traffic control and awesome fireworks display at Mount Trashmore. Mayor Sessoms advised although the Season started slow, this weekend, he had never seen so many individuals at the Resort. Mayor Sessoms complimented the work of a particular lifeguard who saved five (5) individuals. The Police and staff are to be lauded. He noted the loss of one swimmer but advised the Lifeguards did all they could to keep the Oceanfront safe. July 7, 2009 II '_1"'1_'.""""11.1 - 12 - AGE N DA REV IE W S E S S ION ITEM # 58996 4:40 P.M. BY CONSENSUS, the following items shall compose the CONSENT AGENDA: K. ORDINANCES/RESOLUTIONS 1. Ordinance to A UTHORIZE the City Manager to execute a five (5) year Lease with Friends of the Ferry Plantation House, Inc. at 4136 Cheswick Lane 2. Ordinance to A UTHORIZE temporary encroachments into a portion of City-owned rights-ofway for JOHN F and PAIGE C FERGUSON re maintenance of an existingfront porch and steps, two brick walks and two stone walks at 49th Street and Myrtle Avenue DISTRICT 5 - LYNNHA VEN 3. Ordinance to ACCEPT a Cooperative Agreement for legal services between City Council and the School Board and AUTHORIZE Mayor Sessoms to execute said Agreementfor FY 2010 4. Ordinance to DONATE a 1986 Bookmobile to the Pasquotank-Camden County Library in Elizabeth City, North Carolina 5. Resolution to AUTHORIZE and DIRECT the City Manager to execute a contract with the Virginia Department of Health re Soil Drainage Management 6. Resolution to RE-ADOPT the procedures for considering unsolicited requests from private entities re qualifying projects under the Public-Private Education Facilities and Infrastructure Act of 2002 (PPEA) that includes recent legislative updates; and, DIRECT the City's Purchasing Agent to make these procedures available to the public by posting them in the Purchasing office and on the City's website, K.J. (Lease with Friends of the Ferry Plantation House, Inc. will be DEFERRED INDEFINITELY, BY CONSENT) July 7, 2009 Ip I """'~"".'!'-__"".I - 13 - AGE N DA REV IE W S E S S ION ITEM # 58997 BY CONSENSUS, the following items shall compose the PLANNING BY CONSENT AGENDA: L. PLANNING 1. Application of BPMS CASCADES, LLC & BPMS CASCADES 2, LLC for a Modification to delete Proffer No.4 and allow 24-hour operation for retail uses at Centerville Turnpike and Lynnhaven Parkway. (Approved by City Council on February 12, 2008) DISTRICT 1 - CENTERVILLE DISTRICT 2. Application of PUNGO AIRFIELD, L.L.C for a Conditional Use Permit re a recreational facility of an outdoor nature (car racing, paintball) and a mulch facility at 1848 Princess Anne Road (Deferred by City Council June 9,2009). DISTRICT 7- PRINCESS ANNE DISTRICT 3. Application of RAMON p, and CAROL J. JOYCE for a Conditional Use Permit re a residential kennel for a maximum of five (5) adult dogs at 1064 Salisbury Drive. DISTRICT 6 - BEACH 4. Application of EVERETTE LEE BROWN, for a Conditional Use Permit re a bulk storage yard for construction equipment and recreational vehicles at 1333 Dukes Lane near Great Neck Creek. DISTRICT 6 - BEACH 5. Application of WILLIAM E. and MICHAEL W. CHAPLAIN, TRUSTEES OF THE CHAPLAIN LAND TRUST for a Change of Zoning District Classification from AG-2 Agricultural District to Conditional B-2 Community Business District at 1073 Princess Anne Road near Mill Landing Road. DISTRICT 7 - PRINCESS ANNE DISTRICT 6. Ordinance to REPEAL 81611.1 and AMEND 81618 of the City's Coastal Primary Sand Dune Zoning Ordinance re construction of bulkheads in the Sandbridge Beach Subdivision. DISTRICT 7 - PRINCESS ANNE DISTRICT Item L.l (BPMS CASCADES, LLC & BPMS CASCADES 2, LLC) will be DEFERRED INDEFINITELY, BY CONSENT. Item L.2. (PUNGO AIRFIELD, L.L.C) will be ADOPTED, BY CONSENT, with the new conditions as stipulated in the Agenda. July 7, 2009 '1'-"+..e<'~;olJ~II"'1 - 14 - ITEM # 58998 Ma:vor William D, Sessoms, Jr, entertained a motion to permit City Council to conduct its CLOSED SESSION, pursuant to Section 2.2-3711 (A), Code of Virginia. as amended, for the following purpose: PERSONNEL MATTERS: Discussion, consideration of, or interviews of prospective candidates for employment, assignment, appointment, promotion, performance, demotion, salaries, disciplining or resignation of specific public officers, appointees or employees pursuant to Section 2.2-37 J 1 (A)(l) Council Appointments: Boards, Commissions, Committees, Authorities, Agencies and Appointees LEGAL MA TTERS: Consultation with legal counsel and briefings by staff members, consultants, pertaining to actual or probable litigation, where such consultation or briefing in an open meeting would adversely affect the negotiating or litigating posture of the public body, or consultation with legal counsel employed or retained by a public body regarding specific legal matters requiring the provision of legal advice by such counsel pursuant to Section 2.2-3711 (A) (7). Southeastern Public Service Authority (SPSA) Upon motion by Councilman Uhrin, seconded by Vice Mayor Jones, City Council voted to proceed into CLOSED SESSION at 4:42 P.M. Voting: 10-0 Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva and James L. Wood Council Members Voting Nay: None Council Members Absent: Rosemary Wilson (Closed Session: 4:50 P.M. - 5:18 P.M.) (Break: 4:43 P.M. - 4:50 P.M.) 5:18 P.M. - 5:55 P.M.) (Dinner: July 7. 2009 '~'f-"""+'I"'~~,",_II''"I - 15 - FORMAL SESSION VIRGINIA BEACH CITY COUNCIL July 7, 2009 6:00 P.M. Mayor William D. Sessoms, Jr. called to order the FORMAL SESSION of the VIRGINIA BEACH CITY COUNCIL in the Council Chamber, City Hall Building, on Tuesday, July 7, 2009, at 6:00 P.M Council Members Present: Glenn R. Davis, William R. . 'Bill "DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Absent: None INVOCA TION: Rabbi Howard Mandell Temple Emanuel PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA Mayor Sessoms DISCLOSED as an officer of TowneBank (which has a corporate office located at 297 Constitution Drive in Virginia Beach), he is directly and indirectly involved in many of TowneBank's transactions. However, due to the size of TowneBank and the volume of transactions it handles, TowneBank has an interest in numerous matters in which he is not personally involved and of which he does not have personal knowledge. In that regard, he is always concerned about the appearance of impropriety that might arise if he unknowingly participates in a matter before City Council in which TowneBank has an interest. Mayor Sessoms also has similar concerns with respect to Prudential Towne Realty, which is an affiliate of TowneBank. In order to ensure his compliance with both the letter and spirit of the State and Local Government Conflict of Interests Act (the "Act "), it is his practice to thoroughly review each City Council agenda to identify any matters in which he might have an actual or potential conflict. If, during his review of an agenda, he identifies a matter in which he has a "personal interest", as defined by the Act, he will either abstain from voting, or file the appropriate disclosure letter with the City Clerk to be included in the official records of City Council. Mayor Sessoms' letter of March 24,2009, is hereby made apart of the record. 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. July 7, 2009 ''''''''~'--+'''f'.-'''~1I1:lll-'.'''r - 16 - 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 Coriflict 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 coriflict. 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. 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 coriflict. If, during her review she identifies any matters, she will prepare and file the appropriate disclosure letter to be recorded in the official records of City Council. Council Lady Wilson regularly makes this disclosure. Council Lady Wilson's letter of January 27,2004. is hereby made a part of the record. July 7, 2009 ._,."--1..,_1_..'_'....1 - 17 - Item V-E. CERTIFICATION ITEM # 58999 Upon motion by Councilman Dyer, seconded by Council Lady Wilson, City Council CERTIFIED THE CLOSED SESSION TO BE IN ACCORDANCE WITH THE MOTION TO RECESS. Only public business matters lawfully exempt from Open Meeting requirements by Virginia law were discussed in Closed Session to which this certification resolution applies. AND, Only such public business matters as were identified in the motion convening the Closed Session were heard, discussed or considered by Virginia Beach City Council. Voting: 11-0 Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None July 7, 2009 'I II 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 #58998, 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. NOff, 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. ~..::7.~~ Ruth Hodges Fraser, MMC City Clerk July 7, 2009 II i I - 18 - Item V-F.] ITEM # 59000 Upon motion by Council Lady Wilson, seconded by Councilman Dyer, City Council APPROVED the MINUTES of the FORMAL SESSION of June 23,2009. Voting: 11-0 Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None July 7, 2009 II II Item V-G.1. ADOPT AGENDA FOR FORMAL SESSION BY CONSENSUS, City Council ADOPTED: III - 19 - ITEM # 59001 AGENDA FOR THE FORMAL SESSION July 7, 2009 II II II - 20- Item V-H. 1. MAYOR'S PRESENTATION ITEM # 59002 BY CONSENSUS, Mayor Sessoms PRESENTED: RESOLUTIONS HONORING MEMBERS OF THE MINORITY BUSINESS COUNCIL Luis A. Rivera Prescott Sherrod Luis A. Rivera was appointed by the Virginia Beach City Council to the Virginia Beach Minority Business Council on January 11, 2000, and has been reappointed to four additional terms by City Council, in recognition of his strong work ethic and commitment to our City. Mr. Rivera has drawn on his many talents and experiences as a selfemployed business leader, as well as his background in broadcast journalism, to actively and enthusiastically support the Minority Business Council in all of its efforts during the past nine-and-a-half years. The City Council, on behalf of all City residents and business owners, hereby commends and thanks Luis A. Rivera for his volunteer service to our City as a member of the Virginia Beach Minority Business Council Prescott Sherrod is the President and Owner of PEMCCO, Inc., a minority-owned systems integration, installation and management services firm with the corporate office located in the City of Virginia Beach. City Council appointed Mr. Sherrod to the City's Minority Business Council in 2003 and has reappointed him to additional two-year terms in 2005 and 2007. The Minority Business Council elected Mr. Sherrod to succeed Founder, Louisa Strayhorn, as Chair in 2006. He served the remaining portion of her term, plus two one-year terms as Chair. Mr. Sherrod's passion for our community and minority business interests is evident in his service as a Commissioner of the Virginia Beach Development Authority, President of the Hampton Roads Chapter of the Conference of Minority Transportation Officials, 2nd Vice President of the Transportation Disadvantaged Business Enterprise Advisory Committee and his appointment by Governor Kaine as the 2nd Congressional District representative to the Small Business Advisory Board. Mr. Sherrod was accompanied by his wife, CEO, and Maria Edwards, Director of Corporate Development. July 7,2009 i i II itsnlutinu A RESOLUTION COMMENDING LUIS A. RlVJ:."RA FOR HIS SERHCE ON THE VIRGINIA BEACH MINORITY BUSINESS COUNCIL WHEREAS: Luis A. Rivera was appointed by the Virginia Beach City Council to the Virginia Beach Minurity Business Council on January 11, 2000, and has been reappointed to four additional terms hy City Council, in recognition of his strong work ethic and commitment to our City; WHEREAS: Mr. Rivera has drawn on his many talents and experiences as a self-employed husiness leader, as well as his hackground in broadcast journalism, to actively and enthusiastically support the Minority Business Council in all of its efforts during the past nine-and-a-halfyears; WHEREAS: Mr. Rivera has served the Minority Business Council in leadership roles-including a term as Vice-Chair-and as an active memher on multiple Minority Busine~s Council committees and work groups; WHEREAS: Mr. Rivera '.I' support of the Minority Business Council '.I' annual Expo and other puNic tlutreach el'ellls is especially noteworthy and ranged from publicizing Minoriry Business Council events in the media- including radio spots and bilingual outreach to our Spanish-speaking residentr-lo sen1ing as Master Of Ceremonies(or multiple Expos and events; and, WHEREAS: Mr. Rivera has tirelessly given of his lime and talents to the Minority Business Council fiJr near~l' a decade. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, HRGINIA: That the City Council, on behalf of all Cit} residents and business owners, hereby commends and thanks Luis A. Rivera for his volunteer service to our City as a member of the Virginia Beach Minority Business COllnci/, Councilman Ronald J. A. .. Ron" Villanueva i I III Itsnlutinu A RESOLUTION COMMENDING PRESCOTT SHERROD, FORMER CHAIRPERSON OF THE MINORITY BUSINESS COUNCIL WHEREAS: Prescott Sherrod is the President/CEO and Owner of PEMCCO, Inc. a minority- owned systems integration, installation and management services firm with the corporate oifice located In the City of Virginia Beach; WHEREAS: City Council appointed Mr, Sherrod to the City's Minority Business Council in 200] and has reappointed him to additional two-year terms in 2005 and 2007; WHEREAS: the Minority Business Council elected Mr. Sherrod to succeed Founder, Louisa Strayhorn, as Chair in 2006, he served the remaining portion of her term, plus two one-year terms as Chair; WHEREAS: under Mr, Sherrod's leadership, the Mmority Business Council undertook a numha of succes,~/ul initiatives to promote increased involvement in City contracting by woman-owned and minority'-owned businesses, including: · a substantwl revision of the City Code requirements regarding minority-owned and woman-o'Vl'1led busincss participation efforts by City contractors · (j dramatic increase in the amount of statistical data gathered by the City regarding contract awards and City expenditures · a significant Internet presence for the Minority Business Council, including multiple tools to assist City, contractors in matching qualified minority-owned and woman-owned subcontractors with the n.:eds o./prime contractors, and assisting minority-owned and woman-owned prime contractors in identifying City contractsfor which they can compete · appointment of a Minority Business Council Liaison to the City's Development Authority · implementLltion o.f an Administrative Directive that promotes accountability jor City department '05 use o.fdclegated purchasing authority · adoption of a Vision Statement for the Minority Business Council, as well as By-Laws that. among other things, established committees regarding policy, outreach, data collection and analvsis and minontyawareness · increased outreach efforts to the community through the implementation o.f an Industry Hour at Minori~} Business Council meetings, establishment of an Associate program that directzl' involves minority and women business owners in Minority Busines5 Council activities and initiatives, and puhlication of Progress, the Minority Business Council's newsletter; · adoption bv City Councd of a Resolution that sets a goal o.f 10% for minority participation in City contracts; WHEREAS: Mr. Sherrod's passion for our community' and minority business interests is evident in his sen'ice as a Commissioner o.f the Virginia Beach Development Authority, President of the Hampton Roads Chapter of the Conference of Minority Transportation Officials, 2nd Vice President of the 1 ransportatwn Disadvantaged Business Emerprise Advisory Committee and appointment bv Governor Kaine as the 2nd Congressional District representativ(' to the Small Business Advisory Board; and, i I I' WHEREAS: Mr. Sherrod's tireless efforts on beha(f of the City of Virginia Beach and the Minority Business Council have opened countless doors for small and disadvantaged businesses throughout the City and has improved the quality of life for all our residents, NOW THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the City Council, on beha(f of the citizens of Virginia Beach, hereby commends Prescott Sherrodfor his exemplary service as Chair of the Minority Business Council. : I II III - 21 - Item V-I.1. LEASE OF CITY PROPERTY ITEM # 59003 Mayor Sessoms DECLARED A PUBLIC HEARING: LEASE OF CITY PROPERTY Friends of Ferry Plantation House - 4136 Cheswick Lane There being no speakers, Mayor Sessoms CLOSED THE PUBLIC HEARING. July 7, 2009 i I II III - 22- Item V-K ORDINANCES/RESOLUTIONS ITEM # 59004 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council APPROVED in ONE MOTION Items 1 (DEFERRED INDEFINITELY), 2, 3, 4, 5 and 6 of the CONSENT AGENDA. Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None July 7, 2009 ,I II III - 23 - Item V-K.1. ORDINANCES/RESOLUTIONS ITEM # 59005 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council DEFERRED INDEFINITELY: Ordinance to AUTHORIZE the City Manager to execute ajive (5) year Lease with Friends of the Ferry Plantation House, Inc. at 4136 Cheswick Lane Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None July 7,2009 i I I ,I II - 24- Item V-K.2. ORDINANCES/RESOLUTIONS ITEM # 59006 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED: Ordinance to AUTHORIZE temporary encroachments into a portion of City-owned rights-ofway for JOHN F. and PAIGE C. FERGUSON re maintenance of an existing front porch and steps, two brick walks and two stone walks at 49th Street and Myrtle Avenue DISTRICT 5 - LYNNHAVEN The following conditions shall be required: 1. It is proposed by the Grantee to maintain an existing wooden front porch and steps, two (2) brick walks and two (2) stone walks, collectively, the "Temporary Encroachment ", in the City of Virginia Beach. 2. The Temporary Encroachment: it is necessary that the Grantee encroach into portions of the existing City rights-of way, known as 4gth Street and Myrtle Avenue collectively, the "Encroachment Area ". 3. The Grantee has requested that the City permit the Temporary Encroachment within the Encroachment Area, 4. For and in consideration of the premises and of the benefits accruing, or to accrue, to the Grantee and for the further consideration of One Dollar ($1.00), in hand paid to the City, receipt of which is hereby acknowledged, the City hereby grants to the Grantee permission to use the Encroachment Area for the purpose of constructing and maintaining the Temporary Encroachment. 5. It is expressly understood and agreed that the Temporary Encroachment will be maintained in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach. and in accordance with the City's specifications and approval. 6. Providing however, nothing herein shall prohibit the City from immediately removing, or ordering the Grantee to remove, all or any part of the Temporary Encroachment from the Encroachment Area in the event of an emergency or public necessity, and Grantee shall bear all costs and expenses of such removal. 7. It is further expressly understood and agreed that the Temporary Encroachment herein authorized terminates upon notice by the City to the Grantee, and that within thirty (30) days after the notice is given, the Temporary Encroachment must be removed from the Encroachment Area by the Grantee; and that the Grantee will bear all costs and expenses of such removal. 8. It is further expressly understood and agreed that the Grantee shall defend, indemnify, and hold harmless the City, its agents and employees, from and against all claims, damages, losses and expenses, including reasonable attorney's fees, in case it shall be necessary to file or defend an action arising out of the construction, location or existence of the Temporary Encroachment. July 7, 2009 II II III - 25 - Item V-K.2. ORDINANCES/RESOLUTIONS ITEM # 59006 (Continued) 9. It is further expressly understood and agreed that nothing herein contained shall be construed to enlarge the permission and authority to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified herein. nor to permit the maintenance and construction of any encroachment by anyone other than the Grantee, 10. It is further expressly understood and agreed that the Grantee agrees to maintain the Temporary Encroachment so as not to become unsightly or a hazard. 11. It is further expressly understood and agreed that the Grantee must obtain and keep in force all- risk property insurance and general liability or such insurance as is deemed necessary by the City, and all insurance policies must name the City as additional named insured or loss payee, as applicable. The Grantee also agrees to carry comprehensive general liability insurance in an amount not less than $500,000.00, combined single limits of such insurance policy or policies. The Grantee will provide endorsements providing at least thirty (30) days written notice to the City prior to the cancellation or termination oj. or material change to. any of the insurance policies. The Grantee assumes all responsibilities and liabilities, vested or contingent. with relation to the construction. location, and/or existence of the Temporary Encroachment. 12. It is further expressly understood and agreed that the Temporary Encroachment must conform to the minimum setbacks requirement, as established by the City. 13. It is further expressly understood and agreed that the Grantee must submit for review and approval, a survey of the Encroachment Area. certified by a registered professional engineer or a licensed land surveyor, and/or "as built" plans of the Temporary Encroachment sealed by a registered professional engineer, if required by either the City Engineer's Office or the Engineering Division of the Public Utilities Department. 14. It is further expressly understood and agreed that the City, upon revocation of such authority and permission so granted, may remove the Temporary Encroachment and charge the cost thereof to the Grantee, and collect the cost in any manner provided by law for the collection of local or state taxes; may require the Grantee to remove the Temporary Encroachment; and pending such removal, the City may charge the Granteefor the use of the Encroachment Area, the equivalent of what would be the real property tax upon the land so occupied if it were owned by the Grantee; and if such removal shall not be made within the time ordered hereinabove by this Agreement, the City may impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that the Temporary Encroachment is allowed to continue thereafter, and may collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. July 7,2009 i I I - 26- Item V-K.2. ORDINANCES/RESOLUTIONS ITEM # 59006 (Continued) Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None III July 7. 2009 i I II I II' 1 Requested by Department of Public Works 2 3 AN ORDINANCE TO AUTHORIZE 4 TEMPORARY ENCROACHMENTS 5 INTO PORTIONS OF THE CITY 6 RIGHTS-OF-WAY KNOWN AS 49TH 7 STREET AND MYRTLE AVENUE FOR 8 JOHN F. FERGUSON AND PAIGE C. 9 FERGUSON 10 11 WHEREAS, JOHN F. FERGUSON AND PAIGE C. FERGUSON desire to 12 maintain an existing wooden front porch and steps, two (2) brick walks and one (1) 13 stone walk in a portion of the City right-of-way of 49th Street and one (1) existing stone 14 walk into a portion of the City right-of-way of Myrtle Avenue, all located adjacent to their 15 property located at 300 49th Street, in the City of Virginia Beach, Virginia. 16 17 WHEREAS, City Council is authorized pursuant to SS 15.2-2009 and 15.2-2107, 18 Code of Virginia, 1950, as amended, to authorize temporary encroachments upon the 19 City's right-of-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 That pursuant to the authority and to the extent thereof contained in SS 15.2- 24 2009 and 15.2-2107, Code of Virginia, 1950, as amended, JOHN F. FERGUSON and 25 PAIGE C. FERGUSON, their heirs, assigns and successors in title are authorized to 26 maintain temporary encroachments for an existing wooden front porch and steps, two 27 (2) brick walks and one (1) stone walk into a portion of the City right-of-way of 49th 28 Street and one (1) existing stone walk into a portion of the City right-of-way of Myrtle 29 Avenue as shown on the map marked Exhibit "A" and entitled: "ENCROACHMENT 30 EXHIBIT FERGUSON RESIDENCE #300 49TH STREET GPIN: 2418-88-4370 LOT 190, 31 A MAP OF THE HOLLIES (MB 6, P. 107) VIRGINIA BEACH, VIRGINIA," a copy of 32 which is on file in the Department of Public Works and to which reference is made for a 33 more particular description; and 34 35 BE IT FURTHER ORDAINED, that the temporary encroachments are expressly 36 subject to those terms, conditions and criteria contained in the Agreement between the 37 City of Virginia Beach and JOHN F. FERGUSON and PAIGE C. FERGUSON (the 38 "Agreement"), which is attached hereto and incorporated by reference; and 39 40 BE IT FURTHER ORDAINED, that the City Manager or his authorized designee 41 is hereby authorized to execute the Agreement; and 42 43 BE IT FURTHER ORDAINED, that this Ordinance shall not be in effect until such 44 time as JOHN F. FERGUSON and PAIGE C. FERGUSON and the City Manager or his 45 authorized designee execute the Agreement. 46 II I I 'I 47 Adopted by the Council of the City of Virginia Beach, Virginia, on the 7th day 48 of July ,2009. CA-11022 X:\OIDlREAL ESTATEIEncroachmentslPW OrdinanceslCA11022 Ferguson Ordiance.doc V:\applicationslcitylawprodlcycom32IWpdocsIDO 121P005100015623. DOC R-1 PREPARED: 06/15/09 APPROVED AS TO CONTENTS APPROVED AS TO LEGAL SUFFICIENCY AND FORM ~\m;ij(A II "- Neil L.:. Ford, Special Council for the City Attorney P II I I III PREPARED BY VIRGINIA BEACH CITY ATTORNEY'S OFFICE (BOX 31) EXEMPTED FROM RECORDATION TAXES UNDER SECTION 58.1-811(C) (4) THIS AGREEMENT, made this 13th day of April, 2009, by and between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation of the Commonwealth of Virginia, Grantor, "City", and JOHN F. FERGUSON and PAIGE C. FERGUSON, husband and wife, THEIR HEIRS, ASSIGNS AND SUCCESSORS IN TITLE, "Grantee", even though more than one. WIT N E SSE T H: That, WHEREAS, the Grantee is the owner of that certain lot, tract, or parcel of land designated and described as "Lot 190" as shown on that certain plat entitled: "A MAP OF THE HOLLIES ON THE ATLANTIC OCEAN ADJOINING VIRGINIA BEACH PROPERTY OWNED BY COLLIN'S HEIRS" and said plat is recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Map Book 6, at page 107, and being further designated, known, and described as 300 49th Street, Virginia Beach, Virginia 23451; WHEREAS, it is proposed by the Grantee to maintain an existing wooden front porch and steps, two (2) brick walks and two (2) stone walks, collectively, the "Temporary Encroachment", in the City of Virginia Beach; GPIN: (CITY RIGHT OF WAY - NO GPIN REQUIRED OR ASSIGNED) 2418-88-4370-0000 i I II WHEREAS, in maintaining the Temporary Encroachment, it is necessary that the Grantee encroach into portions of the existing City rights of way known as 49th Street and Myrtle Avenue, collectively, the "Encroachment A....ea"; and WHEREAS, the Grantee has requested that the City permit the Temporary Encroachment within the Encroachment Area. NOW, THEREFORE, for and in consideration of the premises and of the benefits accruing or to accrue to the Grantee and for the further consideration of One Dollar ($1.00), in hand paid to the City, receipt of which is hereby acknowledged, the City hereby grants to the Grantee permission to use the Encroachment Area for the purpose of constructing and maintaining the Temporary Encroachment. It is expressly understood and agreed that the Temporary Encroachment will be maintained in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach, and in accordance with the City's specifications and approval and is more particularly described as follows, to wit: A Temporary Encroachment into the Encroachment Area as shown on that certain plat entitled: "ENCROACHMENT EXHIBIT FERGUSON RESIDENCE # 300 49TH STREET GPIN: 2418-88- 4370 LOT 190, A MAP OF THE HOLLIES (MB 6, P. 107) VIRGINIA BEACH, VIRGINIA," a copy of which is attached hereto as Exhibit "A" and to which reference is made for a more particular description. Providing however, nothing herein shall prohibit the City from immediately removing, or ordering the Grantee to remove, all or any part of the Temporary Encroachment from the Encroachment Area in the event of an emergency or public necessity, and Grantee shall bear all costs and expenses of such removal. 2 II I It is further expressly understood an d agreed that the Temporary Encroachment herein authorized terminates upon notice by the City to the Grantee, and that within thirty (30) days after the notice is given, the Temporary Encroachment must be removed from the Encroachment Area by the Grantee; and that the Grantee will bear all costs and expenses of such removal. It is further expressly understood and agreed that the Grantee shall defend, indemnify, and hold harmless the City, its agents and employees, from and against all claims, damages, losses and expenses, including reasonable attorney's fees, in case it shall be necessary to file or defend an action arising out of the construction, location or existence of the Temporary Encroachment. It is further expressly understood and agreed that nothing herein contained shall be construed to enlarge the permission and authority to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified herein, nor to permit the maintenance and construction of any encroachment by anyone other than the Grantee. It is further expressly understood and agreed that the Grantee agrees to maintain the Temporary Encroachment so as not to become unsightly or a hazard. It is further expressly understood and agreed that the Grantee must obtain and keep in force all-risk property insurance and general liability or such insurance as is deemed necessary by the City, and all insurance policies must name the City as additional named insured or loss payee, as applicable. The Grantee also agrees to carry comprehensive general liability insurance in an amount not less than $500,000.00, combined single limits of such insurance policy or policies. The Grantee will provide endorsements providing at least thirty (30) days written notice to the City prior to the cancellation or termination of, or material 3 ! I I change to, any of the insurance policies. The Grantee assumes all responsibilities and liabilities, vested or contingent, with relation to the construction, location, and/or existence of the Temporary Encroachment. It is further expressly understood and agreed that the Temporary Encroachment must conform to the minimum setbacks requirements, as established by the City. It is further expressly understood a nd agreed that the Grantee must submit for review and approval, a survey of the Encroachment Area, certified by a registered professional engineer or a licensed land surveyor, and/or "as built" plans of the Temporary Encroachment sealed by a registered professional engineer, if required by either the City Engineer's Office or the Engineering Division of the Public Utilities Department. It is further expressly understood a nd agreed that the City, upon revocation of such authority and permission so granted, may remove the Temporary Encroachment and charge the cost thereof to the Grantee, and collect the cost in any manner provided by law for the collection of local or state taxes; may require the Grantee to remove the Temporary Encroachment; and pending such removal, the City may charge the Grantee for the use of the Encroachment Area, the equivalent of what would be the real property tax upon the land so occupied if it were owned by the Grantee; and if such removal shall not be made within the time ordered hereinabove by this Agreement, the City may impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that the Temporary Encroachment is allowed to continue thereafter, and may collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. IN WITNESS WHEREOF, JOHN F. FERGUSON and PAIGE C. FERGUSON, husband and wife, collectively, the said Grantee, have caused this Agreement to be executed by their signatures. Further, that the City of Virginia Beach has caused this Agreement to be 4 I I I I II I executed in its name and on its behalf by its City Manager and its seal be hereunto affixed and attested by its City Clerk. (THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK) 5 II I I III crry OF VIRGINIA BEACH By (SEAL) 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 , 2009, by , CITY MANAGER/AUTHORIZED DESIGNEE OF THE CITY MANAGER OF THE CITY OF VIRGINIA BEACH, VIRGINIA, on its behalf. He/She is personally known to me. Notary Public (S EAL) Notary Registration Number: My Commission Expires: (SEAL) ATTEST: City Clerk/Authorized Designee of the City Clerk STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this day of , 2009, by , CITY CLERK/AUTHORIZED DESIGNEE OF THE CITY CLERK OF THE CITY OF VIRGINIA BEACH, VIRGINIA, on its behalf. She is personally known to me. Notary Public (SEAL) Notary Registration Number: My Commission Expires: 6 II I 'I III S OF VIRGINIA CITY 0 GINIA BEACH, to-wit: instrument was acknowledged before day of , 2009, VIRGINIA BEACH. CITY OF STATE OF \!~I~;~ \ ~ - ~ (( CITY/COU~~TY OF . J v Ir\f~ ~ to-wit: The foregoing instrument was acknowledged before me this r~JIy day of ,2009, by JOHN F. FERGUSON. Notary Notary Registration Number: If c1 'I,L )". \( . '?! ) ~1( I ~'=PAUL'LUKS-~----~--~ NOTARY PUBLIC COMMONWEALTH OFVIRGINlA MVCOMMISS. ..ION. EX.. PIRE. S.JULY31.2011 ~~ISSI~.#7~.~~32 My Commission Expires: 7 i I I I III ~i;~~g0rm\{~ ,..l~ V1 < (~ ,IO-~il: The foregoing instrument was acknowledged before me this ~ day of , 2009, by PAIGE C. FERGU SON. Notary Registration Number: My Commission Expires: J. l 'I , Notary 1{o '1'11- )} ~t,( I G5-=~,.,_.. . PAUL UikS "-.. '. COM NOTARY pul3Uc. MY COMM':J:NEALTH OFVIRGINfA i OOM':JN EXPIRES JlJ! Y 3t 2011 _ ~~,.,.,~~I~,~,~~t:". . APPROVED AS TO CONTENTS APPROVED AS TO LEGAL SUFFICIENCY AND FORM ~l%- C.&",ws-fI\. S NATURE Pl,o ['{'AI &Jut. DEPARTMENT n \iH l,JlAi,\ <1<:~"'! l",,1 Nell L. Ford Special Counsel for the City Attorney X:IProjectsIEncroachmentsIApplicantsIFerguson, John F., et uxlAgreement Encroachment-doc 8 II 1 VIRGINIA POWER OVERHEAD LINES VIRGINIA POWER POLE ~ ~~ ~: ~~ ~: ~ ~ '.:..~ ~~~ -,..... C) Q:: l::: ~ "6 ~~ It) V) ~ ~~~ Lu~ ~~ ~ ~~ ~ I, I I LOT-163 / VIRGINIA POWER POLE \ ._._____72'~ WOOD fENCE, ~\)\)~\) /./,r -9-1< 1.40' INSID.E. ~ 15 LANE ~\~\.. ,\0 -\. ~__,:_J'f')' --- __3.67' 50' ~\..~, _ <:,,<:-Y' ~Y' , + , . Rl"f -....72" WOOD FENCE. ~ 72" WOO~ 8.37'18.17't~ ~ FENCE 0,04 8.50' " INSIDE ~ I MOVEABLE j FRAME SHED t51 I / ELECTRIC POST ~ i a LOT-190 ~t 'ro i .....\ i ~ I~ \....... I I \ LOT-164 4 LOT-191 <3 o ~ Q:) ~ tJ~ 9::~ .:::5~ ~ I ~iVN ~C) ~' ~ Q.' 10' Q:i ~ l\ Ll GRAVEL ROADWAY HVAC PADS " p/p(' <1 f'OU,yO BRICK WALK " -9:0 '(' -a % <3 UJ>- 1-<( ~~ ~2: 00:: uCl " MAIL BOX ~ EOG~";~--~;~ STONE WALK ,49TH ~ 70' R/W ~ STREET (FORMERLY AVENUE E) (MB 62, P. 49) ..I ,J .J ~ ~JL__ dote: 07/01 /08 re~ised: 02/13/09 file: 208-0205_Ex.dwg tech: WJW proj. no. 208-0205 project: ENCROACHMENT EXHIBIT FERGUSON RESIDENCE -300 49th STREET GPIN. 2418-88-4370 LOT 190. A MAP OF THE HOLLIES (M.B. 6, P. 107) VIRGINIA BEACH, VIRGINIA Landscape Architects 757,431.1041 L9f)d Su~veyors wplsite,com C,vIl Engineers 242 Mustang Trail, Suite 8 Vir inia Beach, VA 23452 scale: I drawing title: 19.25' EXHIBIT 'A' i I I III - 27 - Item V-K.3. ORDINANCES/RESOLUTIONS ITEM # 59007 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED: Ordinance to ACCEPT a Cooperative Agreement for legal services between City Council and the School Board and AUTHORIZE Mayor Sessoms to execute said Agreementfor FY 2010 Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph. Harry E. Diezel, Robert M Dyer, Barbara M Henley. Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr,. John E. Uhrin, Ron A. Villanueva. Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None July 7, 2009 II I I III 1 AN ORDINANCE APPROVING A COOPERATIVE 2 AGREEMENT BETWEEN THE CITY COUNCIL AND 3 THE SCHOOL BOARD OF THE CITY OF VIRGINIA 4 BEACH PERTAINING TO LEGAL SERVICES TO BE 5 PROVIDED TO THE SCHOOL BOARD AND SCHOOL 6 ADMINISTRATION BY THE OFFICE OF THE CITY 7 ATTORNEY IN FISCAL YEAR 2010 8 9 WHEREAS, the Office of the City Attorney has, for a number of years, provided 10 legal services to the Virginia Beach School Board and School Administration pursuant to 11 Cooperative Agreements; 12 13 WHEREAS, the Cooperative Agreement for FY 2009, which expired on June 30, 14 2009, provides that U[t]his Cooperative Agreement ... may be revised, as necessary, and 15 renewed each fiscal year ...;" and 16 17 WHEREAS, City Council agrees that it is in the best interests of the City and the 18 School Board for the Office of the City Attorney to continue to provide legal services to the 19 School Board pursuant to the revised Cooperative Agreement for FY 2010. 20 21 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 22 VIRGINIA BEACH, VIRGINIA: 23 24 1. That the City Council hereby approves the Cooperative Agreement for FY 25 2010, a copy of which is attached hereto. 26 27 2. That the Mayor is hereby authorized to execute the Cooperative Agreement 28 on behalf of the City Council. 29 30 Adopted by the Council of the City of Virginia Beach, Virginia on the 7th day of 31 July , 2009. APPROVED AS TO CONTENT AND LEGAL SUFFICIENCY: ~b,~ City Attorney CA 11176 R-1 June 18, 2009 II I III COOPERATIVE AGREEMENT BETWEEN THE CITY COUNCIL AND THE ,SCHOOL BOARD OF THE CITY OF VIRGINIA BEACH PERT AINING TO LEGAL SERVICES TO BE PROVIDED TO THE SCHOOL BOARD AND SCHOOL ADMINISTRATION BY THE OFFICE OF THE CITY ATTORNEY IN FISCAL YEAR 2010 Factual Backlrround: 1. Citv Charter Authoritv. Chapter 9 of the Charter of the City of Virginia Beach, Virginia ("City Charter") provides that the City Attorney shall be the chief legal advisor of the City Council, the City Manager, and all departments, boards, commissions and agencies of the City in all matters affecting the interests of the City, and that he shall have such powers and duties as may be assigned by the City Council. 2. Appointment of Citv Attornev. The City Charter also provides that the City Attorney is appointed by the City Council and serves at its pleasure. 3. School Board Authoritv. The School Board is established by the Virginia Constitution, the City Charter, and provisions of general law, and is a body corporate vested with all of the powers and duties of local school boards conferred by law, including the right to contract and be contracted with, to sue and be sued, and to purchase, take, hold, lease, and convey school property both real and personal. 4. School Board Authoritv to Hire Lelral Counsel. The School Board is authorized by Section 22.1-82 of the Code of Virginia (1950), as amended, to employ counsel to advise it, and to pay for such advice out of funds appropriated to the School Board. 5. Recolrnized Reasons to Share Lelral Services. Both the City Council and the School Board have recognized that the reasons for sharing services of the City Attorney's Office include potential savings to taxpayers, expertise of the City Attorney's Office in City Council and School Board matters, institutional memory, and the ability of the City Attorney's Office to 1 ,I I III provide a wide range oflegal services to the School Board based on the expertise of the attorneys in numerous specialized areas of the law. 6. Professional Judgment of City Attorney. The Virginia Rules of Professional Conduct for the Legal Profession require the independent professional judgment of the Office of the City Attorney on behalf of its clients. 7. Potential Ethical Conflicts. The City Council and the School Board recognize that the potential for conflicting interests between the City Council and School Board may arise and that, in such cases, the City Attorney must refrain from representation of interests which may conflict. 8. Identification of Conflicts. The City Council and the School Board also recognize that they must work together and with the City Attorney to identify any real or perceived potential for conflict at the earliest possible time, advise each other and the City Attorney of any such conflict as soon as it arises so as not to compromise the interests of the City Councilor the School Board, and assist the City Attorney in avoiding any violation or appearance of violation of the Code of Professional Responsibility. 9. Continuation of Services. The City Council and the School Board further recognize that it remains in the best interest of the taxpayers of the City for the School Board to continue to use the legal services of the Office of the City Attorney to the extent that no real or perceived conflict is present, and to the extent the City Attorney is budgeted and staffed to handle assigned legal business of the School Board. Objectives: The objective of this Cooperative Agreement is to define the scope and nature of the relationship between the City Attorney's Office and the School Board, to provide for the delivery 2 ,I I "I of designated legal services to the School Board, and to avoid any real or perceived conflict in the delivery ofthose services. A2:reement: NOW, THEREFORE, the City Council and the School Board hereby agree as follows: 1. Le2:al Staffin2:. The Office of the City Attorney will provide the equivalent of two and one half (2 Yz) attorney positions (or 4,125 hours per year) and one (1) secretarial position during FY 2010. The services to be provided as follows: A. The City Attorney will assign two attorneys on-site at the School Administration Building for provision of legal services to the School Board and the School Administration. As determined by the City Attorney, the attorneys will devote substantially all of their time (i.e., approximately 3,300 hours per year) to the provision of legal services to the School Board and School Administration. For the term of this Agreement, those attorneys will be Kamala H. Lannetti, Deputy City Attorney, and LaRana Owens, Associate City Attorney. The City Attorney reserves the right to reassign attorneys to meet the legal needs of the School Board and School Administration in accordance paragraph ID. B. The City Attorney will dedicate one Secretary on-site at the School Administration Building who will devote substantially all of his/her time to the support of legal services to the School Board and School Administration. C. The remaining attorney hours will be provided by the other attorneys in the Office, based upon their various areas of expertise with school-related legal issues, student services, real estate matters, human resources and employee benefits matters, contracts, general administrative and procedural Issues, 3 i I I III litigation, and other legal matters. Attorneys assigned to handle School Board matters will remain on-call to handle legal matters throughout the week. The City Attorney's Office will endeavor to handle as many legal matters in-house as it is capable of handling subject to the provisions ofthis Agreement. D. During the term of this Agreement, and subject to reassignment in the judgment of the City Attorney, the selection of the assigned attorneys shall be mutually agreed upon by the City Attorney and the School Board. Additionally, if a majority of the Members of the School Board expresses dissatisfaction with the legal services provided by the assigned attorney, or by any other attorney providing services to the School Board, the City Attorney will meet with the School Board to discuss and evaluate its concerns. Furthermore, if the School Board and the City Attorney agree that the most reasonable way to address the School Board's concerns is to assign another attorney or other attorneys to represent the School Board, the City Attorney will use his best efforts to make such an assignment(s) as soon as possible. 2. Communication and Reports. Throughout the term of this Agreement, the Office of the City Attorney will maintain an open line of communication with the School Board and the Division Superintendent, and will keep each apprised, on a regular basis, of the status of all legal matters being handled on behalf of the School Board and School Administration; provided, however, that the Office of the City Attorney shall not communicate with the Superintendent concerning those matters being handled on a confidential basis for the School Board or for individual School Board Members in accordance with applicable School Board policies and applicable provisions of the Superintendent's contract. Additionally, the Office of 4 II I III the City Attorney will provide the Superintendent and the School Board an annual report of the legal services and attorney hours provided pursuant to this Agreement and, upon request of the School Board, the School Board Chairman, or the Superintendent, will identify the amount of attorney hours expended in response to inquiries from individual School Board Members. 3. Management of Legal Affairs. The City Council and the School Board recognize and understand that the School Board shall be responsible for the management of its legal matters; that, to the extent contemplated by this Agreement, the City Attorney shall be designated as the chief legal advisor of the School Board and the School Administration, and shall assist the School Board and School Administration in the management of the School Board's legal matters; and that the City Attorney or his designee shall report to the School Board concerning those matters he has been assigned by the School Board to manage and/or handle on its behalf. 4. Ethical Conflicts Concerning Representation of Parties. The City Council and the School Board recognize the potential for real or perceived conflicts in the provision of legal services by the City Attorney, and agree to be vigilant in advising the City Attorney of such issues as they arise. Additionally, the City Council and the School Board understand that in such cases, the City Attorney will refrain from participation on behalf of the School Board but, to the extent ethically permissible in accordance with the Rules and Procedures of the Virginia State Bar, will continue representation of the City Council. 5. Abilitv to Provide Legal Services. The City Council and the School Board further recognize that the ability of the City Attorney's Office to provide legal services to the School Board is limited by the attorney hours allocated pursuant to this Agreement, the other provisions of this Agreement, and ethical constraints as they may arise. 5 i I II III 6. Nature of Aereement. The parties agree that this Cooperative Agreement is not a contract to be enforced by either party but is rather an agreement setting forth the understanding of the parties regarding the parameters within which the Office of the City Attorney will provide legal services to the School Board and School Administration. 7. Payment for Services. The City shall forward to the School Board IDT requests in the amount of $351,267.90 from its FY 2010 Operating Budget to the FY 2010 Operating Budget of the Office of the City Attorney to fund the annual salaries, benefits, certain office supplies, and certain administrative costs of two and one half (2.5) attorneys and one (1) Legal Secretary. IDT requests of 25% of the total shall be made by the City and funds transferred by the School Board on or about July first, October first, January first, and April first. 8. Term and Termination of Aereement. This Cooperative Agreement shall commence with the fiscal year of the parties which begins July 1, 2009, and ends June 30, 2010, and may be revised, as necessary, and renewed each fiscal year thereafter; provided, however, that each party shall give the other party notice of any intention to revise or not to renew the Agreement within one hundred twenty (120) days of the date of expiration of this Agreement, or any renewal hereof, in order that the other party will have the opportunity to make appropriate budget and staffing adjustments. 6 i I I III The parties hereby agree to the terms set for the above. SCHOOL BOARD OF THE CITY OF VIRGINIA BEACH By: , School Board of the City of Virginia Beach: This Cooperative Agreement was approved by majority vote of the School Board of the City of Virginia Beach, Virginia on :r~ I~) ,2009. By: ~-P<~ School Board Clerk CITY COUNCIL OF THE CITY OF VIRGINIA BEACH By: William Sessoms, Mayor City Council of the City of Virginia Beach: This Cooperative Agreement was approved by majority vote of the City Council of the City of Virginia Beach, Virginia on ,2009. By: City Clerk 7 ! 1 1 I, I - 28 - Item V-K4. ORDINANCES/RESOLUTIONS ITEM # 59008 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED: Ordinance to DONATE a 1986 Bookmobile to the Pasquotank-Camden County Library in Elizabeth City, North Carolina Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None July 7, 2009 II I I I, I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 AN ORDINANCE TO DONATE THE 1986 BOOKMOBILE TO THE PASQUOTANK-CAMDEN COUNTY LIBRARY IN ELIZABETH CITY, NC BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: Whereas, pursuant to Virginia Code 9 15.2-953(C), the City may donate personal property to another governmental entity outside of the Commonwealth of Virginia; and Whereas, the 1986 Bookmobile no longer serves a useful purpose for the City of Virginia Beach; and Whereas, the Pasquotank-Camden County Bookmobile was involved in a traffic accident and has been deemed a total loss by their insurance carrier; and Whereas, due to the economic downturn, Pasquotank-Camden County is unable to purchase a replacement at this time; and Whereas, the Pasquotank-Camden County Library in Elizabeth City, N.C., requested that the City of Virginia Beach donate the 1986 Bookmobile. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That the 1986 Thomas 3185B Bookmobile is hereby donated to Pasquotank- Camden County Library in Elizabeth City, N.C. Adopted by the Council of the City of Virginia Beach, Virginia on the 7th day of July ,2009. Approved as to Content: Approved as to Legal Sufficiency: ~~wo. ~ Management Services .~~--- City P\ rney's Office CA11175 R-2 June 26, 2009 I I II - 29- Item V-K,5. ORDINANCES/RESOLUTIONS ITEM # 59009 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED: Resolution to AUTHORIZE and DIRECT the City Manager to execute a contract with the Virginia Department of Health re Soil Drainage Management Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James 1. Wood Council Members Voting Nay: None Council Members Absent: None July 7, 2009 i I I 'I II 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 A RESOLUTION AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE, ON BEHALF OF THE CITY, A CONTRACT BETWEEN THE CITY OF VIRGINIA BEACH AND THE VIRGINIA DEPARTMENT OF HEALTH PERTAINING TO SOIL DRAINAGE MANAGEMENT WHEREAS, the Virginia State Board of Health ("the Board") has supervision and control over the safe and sanitary collection, conveyance, transportation, treatment and disposal of sewage, all sewerage systems and treatment works, and has promulgated regulations reasonably designed to protect the public health and to promote the public welfare, which regulations are administered and enforced locally by the City of Virginia Beach's Health Department ("City Health Department"); and WHEREAS, it is the policy of the City Health Department to grant sewage disposal system permits for private residential systems utilizing subsurface soil absorption (soil drainage management or land management) whenever such permits can be granted without endangering public health; and WHEREAS, in parts of Virginia Beach, Virginia, where soils may be limited in their ability to accept sewage due to the high water table but they respond to artificial drainage, that the City may enter into a Soil Drainage Management Contract with the Department, and adopt a local Soil Drainage Management Program ("the Program") for areas like the City of Virginia Beach, in which the soils require artificial drainage to obtain an adequate level of subsurface soil absorption; and WHEREAS, the City desires to enter into a Soil Drainage Management Contract with the Department and operate, maintain and enforce a Soil Drainage Management Program acceptable to the Department, to provide a mechanism for approving the installation of private residential systems, utilizing subsurface soil absorption in soils that are characterized by soils that respond to artificial drainage; and NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH: That the City Manager is hereby authorized and directed to execute the aforesaid agreement on behalf of the City and to take such measures as are necessary or advisable to implement such agreement according to its terms. AdoQted by the Council of the City of Virginia Beach, Virginia on the 7th day of July, 2009. i I I Approved as to Content: CA 11151 R-1 May 27, 2009 ,I III Approved as to Legal Sufficiency: ())~f!.frkJ- City Attorney's Office 2 II II MEMORANDUM OF AGREEMENT CITY OF VIRGINIA BEACH AND THE VIRGINIA DEPARTMENT OF HEALTH SUMMARY OF MATERIAL TERMS PARTIES: City of Virginia Beach and the Virginia Department of Health SUBJECT: Soil Drainage Management Program (Land Management) PURPOSE: Sets forth the procedure and process for the review of soil management contracts for sites in the city that require subsurface soil absorption where the seasonal water table can be lowered to an acceptable level using artificial drainage. CITY OBLIGATIONS: 1. To comply with the applicable health department regulations regarding soil drainage management; 2. To adopt policies and procedures to administer the program, including a Land Management agreement between the City and the homeowner; 3. To review all submittals and accept or reject the plan; 4. To obtain easements over all ditches and other devices used to remove surface water from the property; and 5. To inspect the ditches and rough grading of the property. VDH OBLIGATIONS: 1. To adopt policies and procedures for the submittal and review of SDMP properties; 2. To inspect the proposed sewage disposal site and perform soil borings to determine the depth of the seasonal water table and inspect the installed sewage disposal system; and 3. To accept or reject any SDMP plan. i I II 'I III - 30 - Item V-K6. ORDINANCES/RESOLUTIONS ITEM # 59010 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED: Resolution to RE-ADOPT the procedures for considering unsolicited requests from private entities re qualifying projects under the Public- Private Education Facilities and Infrastructure Act of 2002 (PPEA) that includes recent legislative updates; and. DIRECT the City's Purchasing Agent to make these procedures available to the public by posting them in the Purchasing office and on the City's website. Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None July 7, 2009 II I ,I III 1 A RESOLUTION RE-ADOPTING THE CITY 2 PROCEDURES FOR CONSIDERING 3 REQUESTS MADE PURSUANT TO THE 4 PUBLIC-PRIVATE EDUCATION FACILITIES 5 AND INFRASTRUCTURE ACT OF 2002 6 7 8 WHEREAS, the Public-Private Education Facilities and Infrastructure Act of 2002 9 ("Act") has the potential, in certain cases, to provide for the construction of public 10 facilities more quickly and at a lower cost; and 11 12 WHEREAS, for the City Council to be able to consider proposals from private 13 entities for approval of qualifying projects under the Act, procedures must be 14 established that permit the City to comply with the provisions of the Act; and 15 16 WHEREAS, the City Council adopted "City of Virginia Beach Procedures 17 Regarding Requests Made Pursuant to the Public-Private Education Facilities and 18 Infrastructure Act of 2002," on June 24, 2003. 19 20 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 21 VIRGINIA BEACH, VIRGINIA: 22 23 1. That the City Council hereby re-adopts the "City of Virginia Beach 24 Procedures Regarding Requests Made Pursuant to the Public-Private Education 25 Facilities and Infrastructure Act of 2002," attached as Exhibit A, as the procedures that 26 will be followed in considering all requests from private entities for approval of qualifying 27 projects under the Act. 28 29 2. That the City's Purchasing Agent is hereby directed to make these 30 procedures publicly available, which shall include posting them in Purchasing Division 31 offices and on the City's website. Adopted by the City Council of the City of Virginia Beach, Virginia, on this 7th day of July ,2009. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: .~ f)~ Ffnqnce D~partm t "rlJ I- .P...o-;1-<>d~ A, /'A/~j' CA11178 R-2 June 26, 2009 /(?{Z f'~ e(ty ttoili'ey's 0 ice II I 'I III EXHIBIT A City of Virginia Beach Procedures Regarding Requests Made Pursuant to the Public-Private Education Facilities and Infrastructure Act of 2002 Adopted by the Council of the City of Virginia Beach, Virginia on June 24, 2003 Re-AdoDted Julv 7.2009 : 1 1 1'1 Public-Private Educational Facilities and Infrastructures Act of 2002 Procedures Table of Contents I. Introduction.............................................................................................................. p. 3 II. General Provisions................................................................................................... p. 4 A. Proposals...................................................................................................... p. 4 B. Affected Local Jurisdictions............ ......... ............................ ................. ....... p. 4 C. Virginia Freedom ofInformation Act .......................................................... p. 5 D. Use of Public Funds ..................................................................................... p. 6 E. Applicability of Other Laws......................................................................... p. 6 III. Solicited Bid/Proposals ............................................................................................ p. 6 IV. Unsolicited Proposals................................................................... ............................. p. 7 A. Decision to Accept and Consider Unsolicited Proposal; Notice.................. p. 7 B. Contents ofInitial Submission ..................................................................... p. 8 C. Review Fees................................................................................................. p. 8 D. Posting Requirements............................................................. p.8 E. Initial Review at the Conceptual Stage ........................................................ p. 9 F. Format for Submissions at the Conceptual Stage......................................... p.9 ~ Format for Submissions at the Detailed Stage ............................................ p. 13 V. Proposal Evaluation and Selection Criteria.............................................................. p. 15 A. Qualifications and Experience ..................................................................... p. 15 B. Project Characteristics.................................................................................. p. 15 C. Project Financing.......................................................................................... p. 16 D. Project Benefit and Compatibility................................................................ p. 16 E. Other Factors ..................................................................... p. 17 VI. Interim and Comprehensive Agreement .................................................................. p. 17 A. Interim Agreement Terms......................................................... p. 17 B. Comprehensive Agreement Terms............................................... p. 18 C. Notice and Posting Requirements................................................ p. 19 VII. Governing Provisions............................................................................................... p. 20 VIII. Investment Partnership Advisory Committee.................................... ........ p. 20 Terms and Definitions............................................................................... p. 21 - 2 - i i II III Public-Private Educational Facilities and Infrastructures Act of 2002 Procedures I. INTRODUCTION The Public-Private Education Facilities and Infrastructure Act of2002, Va. Code Ann. ~~ 56- 575.1 to -575.16 (LNMB Supp. 2002) (the "PPEA"), grants a public entity the authority to create public-private partnerships for the development of a wide range of projects for public use ("qualifying projects") if the public entity determines that there is a need for a project and that private involvement may provide the project to the public in a timely or cost-effective fashion. The definition of "public entity" in ~ 56-575.1 of the PPEA includes, inter alia, any political subdivision of the Commonwealth. In order for a project to come under the PPEA, it must meet the definition of a "qualifying project." The PPEA contains a broad definition of qualifying project that includes public buildings and facilities of all types; for example: (i) An education facility, including but not limited to a school building (including any stadium or other facility primarily used for school events), any functionally related and subordinate facility and land to a school building and any depreciable pmperty provided for use in a school facility that is operated as part of the public school system or as an institution of higher education; (ii) A building or facility that meets a public purpose and is developed or operated by or for any public entity; (iii) Improvements, together with equipment, necessary to enhance public safety and security of buildings to be principally used by a public entity; (iv) Utility and telecommunications and other communications infrastructure; (v) A recreational facility; (vi) Technology infrastructure and services, including but not limited to telecommunications, automated data processing, word processing and management information systems, and related information, equipment, goods and services; (vii) Technology, equipment, or infrastructure designed to deploy wireless broadband services to schools, businesses, or residential areas, or (viii) Any improvements necessary or desirable to any unimproved locally- or state- owned real estate. Section 56-575.16 of the PPEA provides that a public entity (a "responsible public entity") having the power to acquire, design, construct, improve, renovate, expand, equip, maintain, or operate a qualifying project may not consider any unsolicited proposal by a private entity for approval of the qualifying project pursuant to the PPEA until the responsible public entity has adopted and made publicly available procedures that are sufficient to enable the responsible public entity to comply with the PPEA. Accordingly, these procedures (the - 3 - : I II ,I III Public-Private Educational Facilities and Infrastructures Act of 2002 Procedures "Procedures") have been adopted by the City Council (the "Council") as the governing body of the City of Virginia Beach (the "City"). II. GENERAL PROVISIONS A. Proposals 1. Pursuant to Section 56-575.4 ofthe PPEA, a proposal to provide a qualifying project to a responsible public entity may be either solicited from private entities by the public entity (a "Solicited Bid/Proposal") or delivered to the public entity by a private entity on an unsolicited basis (an "Unsolicited Proposal"). In either case, any such proposal shall be clearly identified as a "PPEA Proposal." 2. The requirements for any particular Solicited Bid/Proposal shall be as specified in the solicitation by the City for that particular proposal and shall be consistent with all applicable provisions of the PPEA. 3. Any Unsolicited Proposal shall be submitted to the City by delivering six complete copies, together with the required initial review fee as provided below in S IV(C), to the Purchasing Agent, Department of Finance, Purchasing Division, 2388 Court Plaza Drive, Virginia Beach, VA 23456. Other requirements for an Unsolicited Proposal are as set forth below in S IV. A working group may be designated by the City Manager to review and evaluate all unsolicited proposals. 4. The City may require that any proposal be clarified. Such clarification may include but is not limited to submission of additional documentation, responses to specific questions, and interviews with potential project participants. B. Affected Local Jurisdictions 1. The term "affected local jurisdiction" includes any county, city or town in which all or a portion of a qualifying project is located. 2. Any private entity submitting a Solicited Bid/Proposal or an Unsolicited Proposal to the City as the responsible public entity for a qualifying project must provide any other affected local jurisdiction with a copy of the proposal by certified mail, express delivery, or hand delivery within five (5) business days of submission of the proposal to the City. Any such other affected local jurisdiction shall have 60 days from the date it receives its copy of the proposal to submit written comments to the City and to indicate whether the proposed qualifying project is compatible with the affected local jurisdiction's local comprehensive plan, local infrastructure development plans, capital improvements budget, or other government spending plan. The City will consider comments received within the 60-day period prior to entering into a comprehensive agreement pursuant to the PPEA regarding the proposal. However, the City may begin or continue its evaluation of any such proposal during the 60-day period for the receipt of comments from affected local jurisdictions. - 4 - II I III Public-Private Educational Facilities and Infrastructures Act of 2002 Procedures C. Vire:inia Freedom of Information Act 1. Any confidential and proprietary information provided to a responsible public entity by a private entity pursuant to the PPEA shall be subject to disclosure under the Virginia Freedom ofInformation Act ("FOIA") except as provided by 9 56-575.4(G) of the PPEA. 2. To prevent the release of any confidential and proprietary information that otherwise could be held in confidence pursuant to 9 56-575.4(0) of the PPEA, the private entity submitting the information must (i) invoke the exclusion from FOIA when the data or materials are submitted to the City or before such submission, (ii) identify the data and materials for which protection from disclosure is sought, and (iii) state why the exclusion from disclosure is necessary. A private entity may request and receive a determination from the City as to the anticipated scope of protection prior to submitting the proposal. The City is authorized and obligated to protect only confidential proprietary information, and thus will not protect any portion of a proposal from disclosure if the entire proposal has been designated confidential by the private entity without reasonably differentiating between the proprietary and non-proprietary information contained therein. If a private entity fails to designate trade secrets, financial records, or other confidential or proprietary information for protection from disclosure, such information, records or documents may be subiect to disclosure under FOIA. 3. Upon receipt of a request from a private entity that designated portions of a proposal be protected from disclosure as confidential and proprietary, the City will determine whether such protection is appropriate under applicable law and, if appropriate, the scope of such appropriate protection, and shall communicate its determination to the private entity. If the determination regarding protection or the scope thereof differs from the private entity's request, then the City will accord the private entity a reasonably opportunity to clarify and justify its request. Upon a final determination by the City to accord less protection than requested by the private entity, the private entity will be given an opportunity to withdraw its proposal. A proposal so withdrawn will be treated in the same manner as a proposal not accepted for publication and conceptual-phase consideration as provided below in 9 IV(A)(l). 4. The City may withhold from disclosure memoranda, staff evaluations, or other records prepared by the City, its staff, outside advisors, or consultants exclusively for the evaluation and negotiation of proposals where (i) if such records were made public prior to or after the execution of an interim or a comprehensive agreement, the financial interest or bargaining position of the City would be adversely affected, and (in the basis for the determination is documented in writing by the City. Cost estimates relating to a proposed procurement transaction prepared by or for the City shall not be open to public inspection. 5. The City may not withhold from public access: (a) procurement records other than those subiect to the written determination of the City; (b) information concerning the terms and conditions of any interim or comprehensive agreement, service contract, lease, partnership, or any agreement of any kind entered into by the City and the private entity; - 5 - i i I III Public-Private Educational Facilities and Infrastructures Act of 2002 Procedures (c) information concerning the terms and conditions of any financing arrangement that involves the use of any public funds; or (d) information concerning the performance of any private entity developing or operating a qualifying transportation facility or a qualifying project. However. to the extent that access to any procurement record or other document or information is compelled or protected as required by law. then the City shall comply with such order. D. Use of Public Funds Virginia constitutional and statutory requirements as they apply to appropriation and expenditure of public funds apply to any interim agreement or comprehensive agreement entered into under the PPEA. Accordingly, the processes and procedural requirements associated with the expenditure or obligation of public funds shall be incorporated into planning for any PPEA project or projects. E. Avvlicability of Other Laws Nothing in the PPEA shall affect the duty of the City to comply with all other applicable law not in conflict with the PPEA. The applicability of the Virginia Public Procurement Act (the "VPP A") is as set forth in the PPEA. III. SOLICITED BID/PROPOSALS The procedures applicable to any particular Solicited Bid/Proposal shall be specified in the solicitation for that proposal and shall be consistent with the requirements of the PPEA and any other applicable law. All such solicitations shall be by issuance of a written Invitation to Bid ("IFB") or Request for Proposal ("RFP") within the meaning of those terms as used in the City of Virginia Beach Procurement ordinance. Any proposal submitted pursuant to the PPEA that is not received in response to an IFB or RFP shall be an Unsolicited Proposal under these procedures. Such Unsolicited Proposals include but are not limited to (a) proposals received in response to a notice of the prior receipt of another Unsolicited Proposal as required by the PPEA and provided for below in S IV(A)(2) and (b) proposals received in response to publicity by the City concerning particular needs when the City has not issued a corresponding IFB or RFP, even if the City otherwise has encouraged the submission of proposals pursuant to the PPEA that address those needs. The RFP or ITB will be posted in such public areas as are normally used for posting of the City's notices. including the City's website. Notices will also be advertised in Virf!inia Business Opportunities and posted on the Commonwealth's electronic procurement site as required by Virginia Code S 56-575.3:1(B)(11). In addition. solicited proposals will be posted pursuant to Section IV.A. The RFP or ITB should also contain or incorporate by reference other applicable terms and conditions. including any unique capabilities or qualifications that will be required of the private entities submitting proposals. Pre-proposal conferences may be held as deemed appropriate by the City. - 6 - : I I III Public-Private Educational Facilities and Infrastructures Act of 2002 Procedures IV. UNSOLICITED PROPOSALS The process for evaluating an Unsolicited Proposal, described in detail below, consists of fem five steps. Briefly summarized, upon receipt of an Unsolicited Proposal the City's first step will be to determine whether to accept it for consideration at the conceptual stage. If so, then in step two the City will give public notice ofthe Unsolicited Proposal, and allow for submission of other competing proposals. In step three the City will post conceptual proposals to provide the public with an opportunity to inspect the proposal. In step four the City will proceed with a review at the conceptual stage of the original Unsolicited Proposal and/or any proposal received in response to the public notice and accepted for consideration at the conceptual stage. Step fem five is an in-depth review at the detailed stage of the original Unsolicited Proposal and/or any proposal received in response to the public notice and accepted for consideration at the detailed stage. The City shall be afforded sufficient time as it deems necessary for complete review and evaluation of all proposals submitted; proposals shall remain valid and not revised, other than by the stated procedure, during this period. However, the City may, at its sole discretion, discontinue its evaluation of any proposal at any time. Furthermore, if the City determines that it is in the City's interest to do so with respect to any Unsolicited Proposal, the City may eliminate review at the conceptual stage and proceed directly to a review at the detailed stage. A. Decision to Accept and Consider Unsolicited Proposal: Notice 1. Upon receipt from a private entity of any Unsolicited Proposal accompanied by payment of any required fees, the City will determine whether to accept the Unsolicited Proposal for publication and conceptual-phase consideration, as described below. If the City determines not to accept the proposal at this stage, it will return the proposal and the accompanying initial review fee to the private entity. 2. If the City chooses to accept an Unsolicited Proposal for publication and conceptual- phase consideration, it shall give public notice of the proposal in accordance with the PPEA and shall specify a period of time not less than 60 days during which it will receive competing unsolicited proposals pursuant to S 56-575.4(A) of the PPEA. Although not required by the PPEA, at the discretion of the City such notice may be given consistent with the requirements for public notice as set forth in the Virginia Beach City Procurement ordinance. During the 60-day period for receiving competing Unsolicited Proposals, the City may continue to evaluate the original Unsolicited Proposal. 3. To ensure that sufficient information is available upon which to base the development of a serious competing proposaL representatives of the City familiar with the unsolicited proposal and the guidelines established by the City shall be made available to respond to inquiries and meet with private entities that are considering the submission of a competing proposal. The City shall conduct an analysis of the information pertaining to the proposal included in the notice to ensure that such information sufficiently encourages competing proposals. Further, the City shall establish criteria, including key decision points and approvals, to ensure proper consideration of the extent of competition from available private entities prior to selection. - 7 - ~ I I I III Public-Private Educational Facilities and Infrastructures Act of 2002 Procedures B. Contents of Initial Submission 1. An Unsolicited Proposal must contain information on the private entity's qualifications and experience, project characteristics, project financing, anticipated public reaction, and project benefit and compatibility. The information should be adequate to enable the City to evaluate the practicality and sufficiency of the proposal. The private entity may request that the City consider a two-step proposal process, consisting of an initial conceptual submission to be followed by a more detailed submission. 2. Unsolicited Proposals should provide a concise description of the private entity's capability to complete the proposed qualifying project and the benefits to be derived from the project by the City. Project benefits to be considered may occur during the construction, renovation, expansion or improvement phase and during the life cycle of the project. Proposals also should include a comprehensive scope of work and a financial plan for the project, containing enough detail to allow an analysis by the City of the financial feasibility of the proposed project, including but not limited to (a) the identity of any parties expected to provide financing for the project and (b) a statement indicating whether the private entity intends to request the City to provide resources for financing the project and the nature and extent of any such resources. The scope of work shall be of sufficient detail to identify the level of quality of the project commensurate with recognized design standards or by project qualities established or prescribed by the City of Virginia Beach for a given project. 3. The City may require additional submissions to clarify information previously provided or to address other areas of concern to the City. C. Review Fees A review fee will not be charged of a private entity submitting an Unsolicited Proposal to the City. D. Posting: Reouirements 1. Conceptual proposals, whether solicited or unsolicited, will be posted by the City within 10 working days after acceptance of such proposals in the following manner: the posting will be on the City's website or by publication, in a newspaper of general circulation in the City, of a summary of the proposals and the location where copies of the proposals are available for public inspection. Posting may also be on the Commonwealth's Department of General Service's web-based electronic procurement program commonly known as "eV A." 2. Nothing shall be construed to prohibit the posting of the conceptual proposals by additional means deemed appropriate by the City so as to provide maximum notice to the public of the opportunity to inspect the proposals. 3. In addition to the posting requirements, at least one copy of the proposals shall be made available for public inspection. Trade secrets, financial records, or other records of the - 8 - ; I I I' Public-Private Educational Facilities and Infrastructures Act of 2002 Procedures private entity excluded from disclosure under the provisions of subdivision 11 of ~ 2.2-3705.6 shall not be required to be posted. except as otherwise agreed to by the City and the private entity. Any inspection of procurement transaction records shall be subiect to reasonable restrictions to ensure the security and integrity of the records. E. Initial Review at the Conceptual Stae:e 1. Only proposals complying with the requirements of the PPEA and these Procedures that contain sufficient information for a meaningful evaluation and that are provided in an appropriate format, as described below, will be considered by the City for further review at the conceptual stage. 2. The City will determine at this initial stage of review whether it will proceed using procurement through competitive sealed bidding as defined in the VPP A or procedures developed by the City that are consistent with procurement of other than professional services through competitive negotiation as defined in the VPP A. 3. After reviewing an unsolicited proposal and any competing unsolicited proposals submitted during the notice period, the City may determine: (a) not to proceed further with any proposal, (b) to proceed to the detailed phase of review with the original proposal, (c) to proceed to the detailed phase with a competing proposal, 6f (d) to proceed to the detailed phase with multiple proposals, or (e) to request modifications or amendments to any proposals. 4. Discussions between the City and private entities about the need for infrastructure improvements shall not limit the ability of the City to later determine to use standard procurement procedures to meet its infrastructure needs. At all times the City retains the right to reject any proposal at any time for any reason whatsoever. F. Format for Submissions at the Conceptual Stae:e Unsolicited Proposals at the conceptual stage shall contain the following information in the following format, plus such additional information as the City may request: 1. Qualification and Experience - 9 - II II II Public-Private Educational Facilities and Infrastructures Act of 2002 Procedures a. Identify the legal structure of the firm or consortium of firms making the proposal. Identify the organizational structure for the project, the management approach and how each partner and major subcontractor in the structure fits into the overall team. b. Describe the experience of the firm or consortium of firms making the proposal and the key principals involved in the proposed project including experience with projects of comparable size, value, quality and complexity. Describe the length of time in business, business experience, public sector experience and other engagements of the firm or consortium of firms. Include the identity of any firms that will provide design, construction and completion guarantees and warranties and a description of such guarantees and warranties. Provide resumes ofthe key individuals who will be involved in the project. c. Provide the names, addresses, and telephone numbers of persons within the firm or consortium of firms who may be contacted for further information. d. Provide a current or most recently audited financial statement of the firm or firms and each partner with an equity interest of twenty percent or greater. e. Identify the officers and directors of the firm or firms submitting the proposal. f. Identify all businesses that have a parent-subsidiary or affiliated business entity relationship with the firm or firms submitting the proposal. The State and Local Government Conflict ofInterests Act, at Virginia Code S 2.2-3101, defines "parent-subsidiary relationship" as "a relationship that exists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation." In the same Code section, the Act defines "affiliated business entity relationship" as "a relationship, other than parent-subsidiary relationship, that exists when (i) one business entity has a controlling ownership interest in the other business entity, (ii) a controlling owner in one entity is also a controlling owner in the other entity, or (iii) there is shared management or control between the business entities. Factors that should be considered in determining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entities; there are common or commingled funds or assets; the business entities share the use of the same offices or employees or otherwise share activities, resources or personnel on a regular basis; or there is otherwise a close working relationship between the entities." g. Identify all known contractors or service providers, including but not limited to the providers of architectural services, real estate services, financial services, and legal services. 2. Project Characteristics a. Provide a description of the project, including the conceptual design. Describe the proposed project in sufficient detail so that type, quality, value and intent of the project, the location, preliminary value of the land necessary to be acquired, and the communities that may be affected are clearly identified. - 10 - i I II I II Public-Private Educational Facilities and Infrastructures Act of 2002 Procedures b. Identify and fully describe any work to be performed by the City or any other public entity. c. Include a list of all federal, state and local permits and approvals required for the project and a schedule for obtaining such permits and approvals. d. Identify any anticipated adverse social, economic and environmental impacts of the project. Specify the strategies or actions to mitigate known impacts of the project. e. Identify the projected positive social, economic and environmental impacts of the project. f. Identify the proposed schedule for the work on the project, including the estimated time for completion. g. Propose allocation of risk and liability for work completed beyond the agreement's completion date, and assurances for timely completion of the project. h. State assumptions related to ownership, legal liability, law enforcement and operation of the project and the existence of any restrictions on the public entity's use of the project. i. Provide information relative to phased or partial openIngs of the proposed project prior to completion of the entire work. j. Describe any architectural, building, engineering, or other applicable standards that the proposed project will meet. Define applicable quality standards to be adhered to for achieving the desired product outcome(s). 3. Project Financing a. Provide a preliminary estimate and estimating methodology of the cost of the work by phase, segment, or both. b. Submit a plan for the development, financing and operation of the project showing the anticipated schedule on which funds will be required. Describe the anticipated costs of and proposed sources and uses for such funds. c. Include a list and discussion of assumptions underlying all major elements of the plan. d. Identify all anticipated risk factors and methods for dealing with these factors. - 11 - II II 'I II Public-Private Educational Facilities and Infrastructures Act of 2002 Procedures e. Identify any local, state or federal resources that the private entity contemplates requesting for the project. Describe the total commitment, if any, expected from governmental sources (and identify each such source) and the timing of any anticipated commitment. f. Identify any third parties that the private entity contemplates will provide financing for the project and describe the nature and timing of each such commitment. 4. Project Benefit and Compatibility a. Describe the anticipated benefits to the community, region or state, including anticipated benefits to the economic condition of the City, and identify who will benefit from the project and how they will benefit. b. Identify any anticipated public support or opposition, as well as any anticipated government support or opposition, for the project. c. Explain the strategy and plans that will be carried out to involve and inform the general public, business community, and governmental agencies in areas affected by the project. d. Explain whether and, if so, how the project is critical to attracting or maintaining competitive industries and businesses to the City or the surrounding region. e. Explain whether and, if so, how the project is compatible with the City's comprehensive plan, infrastructure development plans, capital improvements budget, or other government spending plan. f. Explain how quality standards of the project will be satisfied in comparison with the qualities anticipated or proposed by the City of Virginia Beach for the project. g. Provide a statement setting forth participation efforts that are intended to be undertaken in connection with this project with regard to the following types of businesses: (i) minority-owned businesses; (ii) woman-owned businesses; and (iii) small businesses. For the purposes of these guidelines these terms shall be defined as follows: "minority-owned business" shall mean a business or other entity that is at least fifty-one (51) percent owned and controlled by one or more socially and economically disadvantaged person(s). Such disadvantage may arise from cultural, racial, chronic economic circumstance or background, or other similar cause. Such persons include, but are not limited to, African Americans, Hispanic Americans, Asian Americans, Eskimos, and Aleuts; - 12 - i I I II Public-Private Educational Facilities and Infrastructures Act of 2002 Procedures "woman-owned business" shall mean a business or other entity that is at least fifty-one (51) percent owned or controlled by one or more women; "small business" shall mean a business or other entity that (i) has received $10 million or less in annual gross income under generally accepted accounting principles for each of its last three fiscal years or lesser time period if it has been in existence less than three years, (ii) has fewer than 100 employees, and (iii) has a net worth of $2 million or less. As used in these definitions, the term "control" shall mean exercising the power to make policy decisions and being actively involved in day-to-day management. Prior to final payment, the private entity must provide documentation regarding the actual minority-owned, small woman-owned, and small- business participation efforts undertaken in connection with the contract, as well as documentation demonstrating that such businesses were minority or women-owned or small businesses. G. Format for Submissions at the Detailed Stae:e If the City decides to proceed to the detailed phase of review with one or more Unsolicited Proposals, then the following information must be provided by the private entity unless waived by the City: 1. A topographical map (1 :2,000 or other appropriate scale) depicting the location of the proposed project. 2. A list of public utility facilities, if any, that will be crossed by the qualifying project and a statement of the plans of the private entity to accommodate such crossings. 3. A statement and strategy setting out the plans for securing all necessary property. The statement must include the names and addresses, if known, of the current owners of the subject property as well as a list of any property the private entity intends to request the public entity to condemn. 4. A detailed listing of all firms that will provide specific design, construction and completion guarantees and warranties, and a brief description of such guarantees and warranties. 5. A total life-cycle cost specifying methodology and assumptions of the project or projects and the proposed project start date. Include anticipated commitment of all parties; equity, debt, and other financing mechanisms; and a schedule of project revenues and project costs. The life-cycle cost analysis should include, but not be limited to, a detailed analysis of the projected return, rate of return, or both, expected useful life of facility and estimated annual operating expenses. - 13 - II I III Public-Private Educational Facilities and Infrastructures Act of 2002 Procedures 6. A detailed discussion of assumptions about user fees or rates, and usage of the projects. 7. Identification of any known government support or opposition, or general public support or opposition for the project. Government or public support should be demonstrated through resolution of official bodies, minutes of meetings, letters, or other official communications. 8. Demonstration of consistency with appropriate local comprehensive or infrastructure development plans or indication of the steps required for acceptance into such plans. 9. Sufficient design and engineering detail to establish floor plans, elevations, and site characteristics. 10. Explanation of how the proposed project would impact local development plans of each affected local jurisdiction. 11. Identify the officers and directors of the firm or firms submitting the proposal. 12. Identify all businesses that have a parent-subsidiary or affiliated business entity relationship with the firm or firms submitting the proposal. The State and Local Government Conflict of Interests Act, at Virginia Code ~ 2.2-310 1, defines "parent-subsidiary relationship" as "a relationship that exists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation." In the same Code section, the Act defines "affiliated business entity relationship" as "a relationship, other than parent-subsidiary relationship, that exists when (i) one business entity has a controlling ownership interest in the other business entity, (ii) a controlling owner in one entity is also a controlling owner in the other entity, or (iii) there is shared management or control between the business entities. Factors that should be considered in determining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entities; there are common or commingled funds or assets; the business entities share the use of the same offices or employees or otherwise share activities, resources or personnel on a regular basis; or there is otherwise a close working relationship between the entities." 13. Identify all known contractors or service providers, including but not limited to the providers of architectural services, real estate services, financial services, and legal services. 14. Detailed analysis of the financial feasibility of the proposed project, including its impact on similar facilities operated or planned by the City. Include a detailed description of any financing plan proposed for the project, a comparison of that plan with financing alternatives that may be available to the City, and all underlying data supporting any conclusions reached in the analysis or the selection by the private entity of the financing plan proposed for the project. 15. Additional material and information as the City may request. - 14 - i I I II Public-Private Educational Facilities and Infrastructures Act of 2002 Procedures v. PROPOSAL EVALUATION AND SELECTION CRITERIA Some or all of the following matters may be considered in the evaluation and selection of PPEA proposals. However, the City retains the right at all times to reject any proposal at any time for any reason whatsoever. A. Qualifications and Experience Factors to be considered in either phase of the City's review to determine whether the private entity possesses the requisite qualifications and experience may include but are not necessarily limited to: 1. Experience with similar projects of comparable scope and value; 2. Demonstration of ability to perform work at the appropriate level of quality standards; 3. Leadership structure; 4. Project manager's experience; 5. Management approach; 6. Financial condition; and 7. Project ownership. B. Proiect Characteristics Factors to be considered in determining the project characteristics may include but are not necessarily limited to: 1. Project definition; 2. Proposed project schedule; 3. Operation of the project; 4. Technology; technical feasibility; 5. Conformity to laws, regulations, and standards; 6. Environmental impacts; 7. Condemnation impacts; - 15 - II I II Public-Private Educational Facilities and Infrastructures Act of 2002 Procedures 8. State and local permits; and 9. Maintenance of the project. 10. Quality standards to meet proposed project quality. C. Proiect Financing Factors to be considered in determining whether the proposed project financing allows adequate access to the necessary capital to finance the project may include but are not necessarily limited to: 1. Cost and cost benefit to the City; 2. Financing and the impact on the debt or debt burden of the City; 3. Financial plan, including the degree to which the proposer has conducted due diligence investigation and analysis of the proposed financial plan and the results of any such inquiries or studies; 4. Estimated cost; 5. Life-cycle cost analysis; 6. The identity, credit history, and past performance of any third party that will provide financing for the project and the nature and timing of their commitment; and 7. Comparable costs of other project delivery methods; and 8. Opportunity costs assessment. D. Proiect Benefit and Compatibility Factors to be considered in determining the proposed project's compatibility with the appropriate local or regional comprehensive or development plans may include but are not necessarily limited to: 1. Community benefits; 2. Community support or opposition, or both; 3. Public involvement strategy; 4. Compatibility with existing and planned facilities; and - 16 - II I ,I II Public-Private Educational Facilities and Infrastructures Act of 2002 Procedures 5. Compatibility with local, regional, and state economic development efforts. 6. Fiscal impact to the City of Virginia Beach in terms of revenues and expenditures. 7. Economic output ofthe project in terms of jobs and total economic impact on the local economy. 8. Submission of required statement regarding participation efforts that are to be undertaken with regard to minority-owned businesses, woman-owned businesses, and small businesses. Failure to submit this statement shall constitute grounds to reject any proposal. E. Other Factors Other factors that may be considered by the City in the evaluation and selection of PPEA proposals include: 1. The proposed cost of the qualifying proiect; 2. The general reputation, industry experience, and financial capacity of the private entity; 3. The proposed design ofthe qualifying proiect; 4. The eligibility of the proiect for accelerated documentation, review, and selection; 5. Local citizen and government comments; 6. Benefits to the public, including financial and nonfinancial; and 7. Other criteria that the City deems appropriate. VI. INTERIM AND COMPREHENSIVE AGREEMENT Prior to acquiring, designing, constructing, improving, renovating, expanding, equipping, maintaining, or operating any qualifying project, a selected private entity shall enter into a comprehensive agreement with the City as provided by the PPEA. Any such comprehensive agreement, and any amendment thereto, must be approved by the City Council before it is entered into on behalf of the City. Prior to entering a comprehensive agreement an interim agreement may be entered into that permits a private entity to perform compensable activities related to the proiect. The City may designate a working group to be responsible for negotiating any interim or comprehensive agreement. Any interim or comprehensive agreement shall define the rights and obligations of the City and the selected proposer with regard to the proiect. A. Interim A!!reement Terms - 17 - II I ,I III Public-Private Educational Facilities and Infrastructures Act of 2002 Procedures The scope of an interim agreement may include but is not limited to: 1. Proiect planning and development; 2. Design and engineering; 3. Environmental analysis and mitigation; 4. Survey; 5. Ascertaining the availability of financing for the pro?osed facility through financial and revenue analysis; 6. Establishing a process and timing of the negotiation of the comprehensive agreement and 7. Any other provisions related to any aspect of the development or operation of a qualifying proiect that the parties may deem appropriate prior to the execution of a comprehensive agreement. B. Comorehensive A!!reement Terms As provided by the PPEA, the terms of the comprehensive agreement shall include but not be limited to: 1. Delivery of maintenance, performance and payment bonds or letters of credit in connection with any acquisition, design, construction, improvement, renovation, expansion, equipping, maintenance, or operation of the qualifying project, in the forms and amounts satisfactory to the City; 2. Review and approval of plans and specifications for the qualifying project by the City; 3. The right of the City to inspect the qualifying project; 4. Maintenance of a policy or policies of liability insurance or self-insurance in from and amount satisfactory to the City and reasonably sufficient to insure coverage of tort liability to the public and employees and to enable the continued operation of the qualifying project; 5. Monitoring of the practices of the operator by the City to ensure proper maintenance; 6. Reimbursement to be paid to the City for services provided by the City; 7. Filing by the operator of appropriate financial statements on a periodic basis; 8. Policies and procedures governing the rights and responsibilities of the City and the operator in the event that the comprehensive agreement is terminated or there is a material - 18 - i I I I II Public-Private Educational Facilities and Infrastructures Act of 2002 Procedures default by the operator, including the conditions governing assumption of the duties and responsibilities of the operator by the City and the transfer or purchase of property or other interests of the operator by the City; 9. Providing for such user fees, lease payments, or service payments, if any, as may be established from time to time by agreement of the parties, which shall be the same for persons using the facilities under like conditions and shall not materially discourage use of the qualifying project. Classifications according to reasonable categories for assessment of user fees may be made. 10. Requiring a copy of any service contract to be filed with the City and providing that a schedule of the current user fees or lease payments shall be made available by the operator to any member of the public upon request. 11. The terms and conditions under which the responsible public entity may contribute financial resources, if any, for the qualifying project; aHd 12. Any other provisions required by applicable law,;; 13. The terms and conditions under which existing site conditions will be assessed and addressed, including identification of the responsible party for conducting the assessment and taking necessary remedial action; 14. The terms and conditions under which the City will be required to pay money to the private entity and the amount of any such payments for the proiect; 15. Such other terms and conditions as the City may deem appropriate. Any changes in the terms of the comprehensive agreement as may be agreed upon by the parties from time to time shall be added to the comprehensive agreement only by written amendment. The comprehensive agreement may provide for the development or operation of phases or segments of a qualifying proiect. C. Notice and Postin!! Reouirements 1. In addition to the posting requirements of Section VI. D, 30 days prior to entering into an interim or comprehensive agreement, the City shall provide an opportunity for public comment on the proposals. Such public comment period shall include a public hearing in the sole discretion of the City. After the end of the public comment period, no additional posting shall be required. 2. Once the negotiation phase for the development of an interim or a comprehensive agreement is complete and a decision to award has been made by the City, the City shall post the proposed agreement or a summary of the proposed agreement on the City's website or by publication, in a newspaper of general circulation in the area in which the contract work is to be performed, and the location where a copy of the agreement is available for public inspection. - 19 - i I I II Public-Private Educational Facilities and Infrastructures Act of 2002 Procedures Posting may also be on the Department of General Service's web-based electronic procurement program commonly known as "eV A," in the discretion ofthe City. In addition to the posting requirements, at least one copy of the proposed agreement shall be made available for public inspection. Trade secrets, financial records, or other records of the private entity excluded from disclosure under the provisions of subdivision 11 of ~ 2.2-3705.6 shall not be required to be posted, except as otherwise agreed to by the City and the private entity. 3. Once an interim agreement or a comprehensive agreement has been entered into, the City shall make procurement records available for public inspection, upon request. a. Such procurement records shall include documents protected from disclosure during the negotiation phase on the basis that the release of such documents would have adverse affect on the financial interest or bargaining position of the City or private entity in accordance with Section II.C. b. Confidential and proprietary material shall continue to be protected as set out in Section II. C. c. Pursuant to Virginia Code S 56-575.17(D), such procurement records shall not be interpreted to include (i) trade secrets of the private entity as defined in the Uniform Trade Secrets Act (~ 59.1-336 et seq.) or (m financial records, including balance sheets or financial statements of the private entity that are not generally available to the public through regulatory disclosure or otherwise. VII. GOVERNING PROVISIONS In the event of any conflict between these provisions and the PPEA, the terms of the PPEA shall control. VIII. INVESTMENT PARTNERSHIP ADVISORY COMMITTEE On March 8, 2001, City Council adopted a City Council Policy, "Guidelines for Evaluation of Investment Partnerships for Economic Development." These Guidelines include the appointment by City Council of an Investment Partnership Advisory Committee. Any comprehensive agreements entered into by the City under PPEA shall also be included in the annual assessment of the partnership results contained in the annual report issued by the Investment Partnership Advisory Committee. - 20- II I II Public-Private Educational Facilities and Infrastructures Act of2002 Procedures Terms and Definitions "Comprehensive a2reement" means the comprehensive agreement between the private entity and the responsible public entity that is required prior to the development or operation of a qualifying proiect. "Conceptual sta2e" means the initial phase of proiect evaluation when the public entity makes a determination whether the proposed proiect serves a public purpose, meets the criteria for a qualifying proiect, assesses the qualifications and experience of a private entity proposer, reviews the proiect for financial feasibility, and warrants further pursuit. "Cost-benefit analysis" means an analysis that weighs expected costs against expected benefits in order to choose the best option. For example, a city manager may compare the costs and benefits of constructing a new office building to those of renovating and maintaining an existing structure in order to select the most financially advantageous option. "Detailed sta2e" means the second phase of proiect evaluation where the public entity has completed the conceptual stage and accepted the proposal and may request additional information regarding a proposed proiect prior to entering into competitive negotiations with one or more private entities to develop an interim or comprehensive agreement. "Develop" or "development" means to plan, design, develop, finance, lease, acquire, install, construct, or expand. "Interim a2reement" means an agreement between a private entity and a responsible public entity that provides for phasing of the development or operation, or both, of a qualifying proiect. Such phases may include, but are not limited to, design, planning, engineering, environmental analysis and mitigation, financial and revenue analysis, or any other phase of the proiect that constitutes activity on any part of the qualifying proiect. "Lease payment" means any form of payment, including a land lease, by a public entity to the private entity for the use of a qualifying proiect. "Lifecycle cost analysis" means an analysis that calculates cost of an asset over its entire life span and includes the cost of planning, constructing, operating, maintaining, replacing, and when applicable, salvaging the asset. Although one proposal may have a lower initial construction cost, it may not have the lowest lifecycle cost once maintenance, replacement, and salvage value is considered. "Material default" means any default by the private entitv in the performance of its duties that ieopardizes adequate service to the public from a qualifying proiect. "Operate" means to finance, maintain, improve, equip, modify, repair, or operate. "Opportunity cost" means the cost of passing up another choice when making a decision or the increase in costs due to delays in making a decision. - 21 - i I I II Public-Private Educational Facilities and Infrastructures Act of 2002 Procedures "Private entity" means any natural person, corporation, general partnership, limited liability company, limited partnership, ioint venture, business trust, public benefit corporation, nonprofit entity, or other business entity. "Public entity" means the Commonwealth and any agency or authority thereof, any county, city or town and any other political subdivision of the Commonwealth, any public body politic and corporate or any regional entity that serves a public purpose. "Qualifvine: proiect" means (i) any education facility, including, but not limited to a school building, any functionally related and subordinate facility and land of a school building (including any stadium or other facility primarily used for school events), and any depreciable property provided for use in a school facility that is operated as part of the public school system or as an institution of higher education; (ii) any building or facility that meets a public purpose and is developed or operated by or for any public entity; Wi) any improvements, together with equipment, necessary to enhance public safety and security of buildings to be principally used by a public entity; (iv) utility and telecommunications and other communications infrastructure; (v) a recreational facility; (vi) technology infrastructure and services, including, but not limited to, telecommunications, automated data processing, word processing and management information systems, and related information, equipment, goods and services; (vii) any technology, equipment, or infrastructure designed to deploy wireless broadband services to schools, businesses, or residential areas; or (viii) any improvements necessary or desirable to any unimproved locally- or state-owned real estate. "Responsible public entity" means a public entity that has the power to develop or operate the applicable qualifying proiect. "Revenues" means all revenues, income, earnings, user fees, lease payments, or other service payments arising out of or in connection with supporting the development or operation of a qualifying proiect, including without limitation, money received as grants or otherwise from the United States of America, from any public entity, or from any agency or instrumentality of the foregoing in aid of such facility. "Service contract" means a contract entered into between a public entity and the private entity pursuant to Virginia Code ~ 56-575.5. "Service pavments" means payments to the private entity of a qualifying proiect pursuant to a service contract. "State" means the Commonwealth of Virginia. "User fees" mean the rates, fees, or other charges imposed by the private entity of a qualifying proiect for use of all or a portion of such qualifying proiect pursuant to the comprehensive agreement pursuant to Virginia Code ~ 56-575.9. - 22- Item V-L. PLANNING 1. BPMS CASCADES, LLC & BPMS CASCADES 2, LLC 2. PUNGO AIRFIELD, LLC 3. RAMON P. AND CAROL J. JOYCE 4. EVERETTE LEE BROWN - 31 - ITEM # 59011 5. WILLIAM E. and MICHAEL W. CHAPLAIN, TRUSTEES OF THE CHAPLAIN LAND TRUST 6. COASTAL PRIMARY SAND DUNES 'I 'I MODIFICATION TO DELETE Proffer No.4 and allow 24-hour Operation for retail uses CONDITIONAL USE PERMIT CONDITIONAL USE PERMIT CONDITIONAL USE PERMIT CONDITIONAL CHANGE OF ZONING Ordinance to REPEAL ~1611.1 and AMEND ~1618 of the City's Coastal Primary Sand Dune Zoning Ordinance re construction of bulkheads in the Sandbridge Beach Subdivision. July 7, 2009 'I 'I - 32 - Item V-L. PLANNING ITEM # 59012 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council APPROVED in ONE MOTION Items 1 (DEFERRED INDEFINITELY), 2 (New Conditions), 3, 4, 5 and 6 of the PLANNING BY CONSENT AGENDA. Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin , Ron A. Villanueva, Rosemary Wilson and James 1. Wood Council Members Voting Nay: None Council Members Absent: None July 7, 2009 II I 'I II - 33 - Item V-L.I. PLANNING ITEM # 59013 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council DEFERRED INDEFINITELY an Ordinance upon application of BPMS CASCADES, LLC & BPMS CASCADES 2, LLC for a Modification to delete Proffer No, 4 and allow 24-hour operation for retail uses at Centerville Turnpike and Lynnhaven Parkway. (Approved by City Council on February 12, 2008) ORDINANCE UPON APPLICATION OF BPMS CASCADES, LLC AND BPMS CASCADES 2, LLC,RE MODIFICATION OF PROFFERS, NORTHWEST CORNER OF CENTERVILLE TURNPIKE AND LYNNHA VEN PARKWAY Ordinance upon application of BP MS CASCADES, LLC and BP MS CASCADES 2, LLC,re Modification of Proffers, to delete Proffer No.4 and allow 24-hour operation for retail uses at the northwest corner of Centerville Turnpike and Lynnhaven Parkway (GPINs 14549813900000; 14549854200007). CENTERVILLE DISTRICT. Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin , Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None July 7, 2009 ,I II - 34 - Item V-L.2. PLANNING ITEM # 59014 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council, ADOPTED WITH NEW CONDIITONS, Ordinance upon application of PUNGO AIRFIELD, L.L.e. for a Conditional Use Permit re a recreational facility of an outdoor nature (car racing, paintball) and a mulch facility at 1848 Princess Anne Road (Deferred by City Council June 9, 2009). ORDINANCE UPON APPLICATION OF PUNGO AIRFIELD, L.L.c., FOR A CONDITIONAL USE PERMIT, RE RECREATIONAL FACILITY OF AN OUTDOOR NATURE (CAR RACING, PAINTBALL) AND A MULCH FACILITY, 1848 PRINCESS ANNE ROAD. R070935355 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of PUNGO AIRFIELD, L.L.c.. for a Conditional Use Permit. re recreational facility of an outdoor nature (car racing, paintball) and a mulch facility, 1848 Princess Anne Road (GPIN: 24131421160000;24131540580000) PRINCESS ANNE DISTRICT The following conditions shall be required: 1. The motor vehicle events and the paintball operation are limited to operating hours of 8:00 A M to dusk. The applicant shall provide the Zoning Administrator a monthly schedule of events before the events occur. Motor vehicle events are limited to autocross / Solo (SCCA) / gymcanna that are designed to test car handling and driver skill rather than vehicle horsepower. There shall be no drag racing, drifting (sliding), or any other similar braking technique, particularly when such technique encourages the sound of 'squealing' tires on pavement. Events shall occur only within the area designated for Solo events on the submitted site plan, which is further described in Condition 2 below. 2. The applicant shall install a commercial entrance meeting Public Works Specifications and Standards at the entrance to the site on Princess Anne Road as depicted on the revised exhibit plan entitled "EXHIBIT OF PUNGO AIRFIELD PROPERTY, PRINCESS ANNE ROAD ", dated April 29, 2009, and prepared by MSA, Pc. Said plan has been exhibited to the City of Virginia Beach City Council and is onfile in the Planning Department. 3. The applicant shall re-grade and resurface the approximate 430-foott long gravel roadway to the hard surface runway delineated on the submitted exhibit entitled EXHIBIT OF PUNGO AIRFIELD PROPERTY, PRINCESS ANNE ROAD". dated April 29, 2009, and prepared by MSA, Pc. The applicant may use gravelfrom the commercial entrance to the runway. Said plan has been exhibited to the City of Virginia Beach City Council and is on file in the Planning Department. 4. The applicant shall reserve 7.5 feet along the Princess Anne Roadfrontage such that the ultimate right-aI-way is 110 feet, in accordance with the Master Transportation Plan amended 10/12/04, is achieved July 7, 2009 'I 'I - 35 - Item V-L.2. PLANNING ITEM # 59014 (Continued) 5. The applicant shall install a ten (10) foot wide multi-use trail East of the 7.5 reservation along the Princess Anne Road frontage, in accordance with the City of Virginia Beach Bikeways and Trails Plan. 6. The applicant shall repair, or replace, fencing surrounding the property. Category I shrubs shall be supplemented where needed along the fence running parallel to Princess Anne Road The applicant shall work with the Current Planning staff to determine the appropriate placement of the supplemental landscaping. 7. The applicant shall obtain approval from the Virginia Department of Health for the well and septic systems. 8, The proposed restroom building shall substantially comply with the submitted elevation entitled "Pungo Restroom Facility", dated February 23, 2009, which is contained in the staff report. Said elevation has been exhibited to the City of Virginia Beach City Council and is onfile in the Planning Department. 9. The applicant shall delineate a minimum offifty (50) parking spaces on the hard surface runway to accommodate staff, spectators and participants. 10. The applicant shall delineate pedestrian pathways from the restrooms to the parking area and from the restrooms and parking area to the spectator seating and motor vehicle staging areas. The applicant shall install protection for the spectators and participants along the pathways and in front of the spectator area. 11. The applicant shall remove all inoperative vehicles and equipment, tires, trash and unusable mulch debris from the site. 12. The site is limited to one non-illuminated monument style sign not to exceed eight (8) feet in height and not to exceed sixteen (16) square feet per face. 13. The applicant shall obtain all necessary permits and inspections and a Certificate of Occupancy within six months of City Council approval of this request. 14. This Use Permit is validfor one (1) year, but it may be administratively renewed The Zoning Administrator shall review the conditions of this Use Permit on an annual basis to determine if there have been any complaints pertaining to the events. If so, the Use Permit shall be re- evaluated by the Planning Department staff, who shall recommend appropriate action to the City Council. This Ordinance shall be effective in accordance with Section 107 (j) of the Zoning Ordinance. Adopted by the City Council of the City of Virginia Beach, Virginia, on the Seventh of July, Two Thousand Nine July 7, 2009 II I - 36 - Item V-L.2. PLANNING ITEM # 59014 (Continued) Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin , Ron A. Villanueva, Rosemary Wilson and James 1. Wood Council Members Voting Nay: None Council Members Absent: None 'I II July 7, 2009 II I 'I II - 37 - Item V-L.3. PLANNING ITEM # 59015 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED an Ordinance upon application of RAMON P. and CAROL J. JOYCE for a Conditional Use Permit re a residential kennel for a maximum offive (5) adult dogs at 1064 Salisbury Drive. ORDINANCE UPON APPLICATION OF RAMON P AND CAROL J. JOYCE, FOR A CONDITIONAL USE PERMIT, RE A RESIDENTIAL KENNEL, 1064 SALISBURY DRIVE. R070935356 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of RAMON P and CAROL J. JOYCE, for a Conditional Use Permit, re a residential kennel, 1064 Salisbury Drive. (GPIN:14962189190000) DISTRICT 6 - BEACH The following conditions shall be required: 1. No more than five dogs (over six months of age) shall be kept on the property at any time. 2. Dog litter shall be collected and disposed of daily. 3. The applicant shall maintain all required vaccinations and shall properly license the dogs through the City of Virginia Beach. 4. Upon the death of anyone of the five dogs, the site shall be limited to no more than four dogs. This Ordinance shall be effective in accordance with Section 107 (j) of the Zoning Ordinance. Adopted by the City Council of the City of Virginia Beach, Virginia, on the Seventh of July, Two Thousand Nine Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None City Council Members Absent: None July 7,2009 i I I 'I II - 38 - Item V-LA. PLANNING ITEM # 59016 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED an Ordinance upon application of EVERETTE LEE BROWN, for a Conditional Use Permit re a bulk storage yard for construction equipment and recreational vehicles at 1333 Dukes Lane near Great Neck Creek. ORDINANCE UPON APPLICATION OF EVERETTE LEE BROWN, FOR A CONDITIONAL USE PERMIT RE A BULK STORAGE YARD FOR CONSTRUCTION EQUIPMENT AND RECREATIONAL VEHICLES AT 1333 DUKES LANE NEAR GREAT NECK CREEK. R070935357 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of EVERETTE LEE BROWN, for a Conditional Use Permit re a bulk storage yard for construction equipment and recreational vehicles at 1333 Dukes Lane near Great Neck Creek (GPIN: 2417351239;2417351296;2417352351) DISTRICT 6 - BEACH The following conditions shall be required: 1. The applicant shall meet all of the conditions attached to the Chesapeake Bay Preservation Area Board variance approval dated May 21, 2009. 2. The development of the site shall conform to the submitted site plan entitled "Site Plan of Dukes Lane Open Storage ", prepared by Mel Smith and Associates, and dated 8/15/08. Said plan has been exhibited to the Virginia Beach City Council and is on file at the Virginia Beach Planning Department. 3. The applicant shall submit a site plan depicting the location of the bulk storage area for review and approval, Bulk storage shall be limited to recreational vehicles (campers, boats, boat trailers, jet skis and trailers), containers and construction equipment and vehicles. Vehicles, trailers, containers and construction equipment shall be stored within the designated areas. There shall be no storage of inoperative, junked and/or wrecked vehicles; and no storage of construction materials and or debris. 4. Storage of any hazardous, flammable and combustible materials used, stored or sold on-site shall comply with the Virginia Statewide Fire Prevention Code and NFP A requirements. 5. The Fire Marshall must approve security for ingress and egress such that Fire Department access is not obstructed. Gated sites must provide for Fire Department access by using the Knox or Supra key system. Electrically operated gates must have afailsafe operation in the event of a power failure. July 7, 2009 'I II - 39 - Item V-LA. PLANNING ITEM # 59016 (Continued) This Ordinance shall be effective in accordance with Section 107 (/) of the Zoning Ordinance, Adopted by the City Council of the City of Virginia Beach, Virginia, on the Seventh of July, Two Thousand Nine Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin , Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None City Council Members Absent: None July 7, 2009 ,I I I I II - 40- Item V-L.5. PLANNING ITEM # 59017 Upon motion by Vice Mayor Jones. seconded by Councilman Dyer. City Council ADOPTED an Ordinance upon application of WILLIAM E. and MICHAEL W. CHAPLAIN, TRUSTEES OF THE CHAPLAIN LAND TRUST for a Change of Zoninz District Classification from AG-2 Agricultural District to Conditional B-2 Community Business District at 1073 Princess Anne Road near Mill Landing Road. ORDINANCE UPON APPLICATION OF WILLIAM E. CHAPLAIN & MICHAEL W. CHAPLAIN, TRUSTEES OF THE CHAPLAIN LAND TRUST, FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION. AG-2 AGRICULTURAL DISTRICT TO CONDITIONAL B-2 COMMUNITY BUSINESS DISTRICT, 1073 PRINCESS ANNE ROAD. Z07091226 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of WILLIAM E. CHAPLAIN & MICHAEL W. CHAPLAIN, TRUSTEES OF THE CHAPLAIN LAND TRUST, for a Change of Zoning District Classification. AG-2 Agricultural District to Conditional B-2 Community Business District, 1073 Princess Anne Road. (GPIN:24006687850000) DISTRICT 7 - PRINCESS ANNE DISTRICT. The following condition shall be required: 1, An Agreement encompassing modified 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 City Council of the City of Virginia Beach, Virginia, on the Seventh of July, Two Thousand Nine Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R, "Bill" DeSteph, Harry E. Diezel. Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin , Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None City Council Members Absent: None July 7, 2009 i I I II II CITY OF VIRGINIA BEACH INTER-OFFICE CORRESPONDENCE In Reply Refer To Our File No. DF-7405 DATE: June 29,2009 FROM: Mark D. Stiles B. Kay Wilson~0 DEPT: City Attorney DEPT: City Attorney TO: RE: Conditional Zoning Application; William E. & Michael W. Chaplain, Trustees of the Chaplain Land Trust The above-referenced conditional zoning application is scheduled to be heard by the City Council on July 7, 2009. I have reviewed the subject proffer agreement, dated March 31,2009 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/ka Enclosure cc: Kathleen Hassen .,/' PREPARED BY: ,,1.8 SITIS. IlOURDON. m AlIrnN & LM. p,c. II WILLIAM E. CHAPLAIN and MICHAEL W. CHAPLAIN, TRUSTEES OF THE CHAPLAIN LAND TRUST TO (PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS) CITY OF VIRGINIA BEACH THIS AGREEMENT, made this 31st day of March, 2009, by and between WILLIAM E. CHAPLAIN and MICHAEL W. CHAPLAIN, TRUSTEES, Grantors; and THE CITY OF VIRGINIA BEACH, a municipal corporation ofthe Commonwealth of Virginia, Grantee. WITNESSETH: WHEREAS, the Grantors are the owners of a certain parcel of land located in the Princess Anne District of the City of Virginia Beach, containing approximately 1.01 acres, which is more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference. Said parcel is herein referred to as the "Property"; and WHEREAS, the Grantors have 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 Property from AG-2 Agricultural District to Conditional B-2 Community 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 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 Grantors' 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 Grantors' rezoning application gives rise; and GPIN: 2400-66-8785 Prepared By: R Edward Bourdon, Jr., Esquire Sykes, Bourdon, Ahern & Levy, P.C. 281 Independence Blvd. Pembroke One, Fifth Floor Virginia Beach, Virginia 23462 1 PREPARED BY: ~m SillS. ROURDON. .. AArnN & LM. P.c. 'I 'I 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 with respect to the Property, 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 has a reasonable relation to the rezoning and the need for which is generated by the rezoning. NOW, THEREFORE, the Grantors, their 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 make 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 covenaI1ts i running with the Property, which shall be binding upon the Property and upon all parties and persons claiming under or through the Grantors, their successors, personal representatives, assigns, grantees, and other successors in interest or title: 1. When the Property is redeveloped, it shall be redeveloped substantially as shown on the exhibit entitled "CONDITIONAL REZONING EXHIBIT 1073 PRINCESS ANNE ROAD", dated 3/31/09, prepared by WPL, which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning (hereinafter "Site Plan"). 2. When the Property is developed, the building depicted on the Site Plan will have the architectural design and will utilize building materials substantially as depicted on the photographic exhibit designated "BUILDING ELEVATIONS 1073 PRINCESS ANNE RD.", dated March 31, 2009, prepared by WPL, which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning (hereinafter "Rendering"). 3. The freestanding sign shall be an externally illuminated monument style sign no greater than eight feet (8') in height in the area designated on the Site Plan. All building mounted signage shall be channel letters on a raceway (i.e. no block signs) and only the lettering may be illuminated. 2 ,I I PREPARED BY: ~ SYns. ROURDON, 51 AAffiN & Lm. P.c. 'I II 4. All outdoor lighting shall be shielded, deflected, shaded and focused to direct light down onto the premises and away from adjoining property. 5. The only uses which will be permitted are: a. Eating and drinking establishments without drive-through window~; b. Business studios, offices and clinics; c. Retail establishments; and d. Repair and sales for radio and television and other household appliances and small business machines. 6. 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 B-2 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 a~d 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. 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 3 i I I PREPARED BY, SYKES. YOURDON. AHmN & lEVY. P.c. " Beach, Virginia, to administer and enforce the foregoing conditions and restrictions, including the authority (a) to order, in writing, that any noncompliance with such conditions be remedied; and (b) to bring legal action or suit to insure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages, or other appropriate action, 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. 4 i I I PREPARED BY: \:J.m SYKfS. ROURDON. uti AllIRN & iM. P.c. I' WITNESS the following signatures and seals: Grantor: Thee C; aplain Land Truut . {I L" , " // J I' B:/' .,/'/,' __ I William E. ChaPla~ee -l.(SEAlL) J'I!t " ~ ,~" l .-;"': /_'v' .' / ._,' '- ?/; / ..,. ~". . .' ~ By: -:l c....-G ,,>~/ ~- r '".Z~ ,L.!: Michael W. Chaplain, Trus e (SEAL) STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to wit: The foregoing instrument was acknowledged before me this 31st day of March, 2009, by William E. Chaplain and Michael W. Chaplain, Trustees of The Chaplain L.imd Trust, Grantor. My Commission Expires: Notary Registration No.: August 31, 2010 192628 5 i I II PREPARED BY' 1J13 SYHS. ROURDON. m AlIrnN & UVY. P.c. I' EXHIBIT "A" All that certain lot, piece or parcel of land, with the buildings and improvements thereon and the appurtenances thereunto belonging, lying, being and situate in the Borough of Pungo, City of Virginia Beach, Virginia, situated on the West side of Princess Anne Road, opposite the point where the same is intersected by Mill Landing Road, said property being known, numbered and designated as Parcel No. 2 on a certain plat entitled, "Property of A.E. Williams, Bay Back, Pungo Borough, Virginia Beach, Virginia", dated June 12, 1963, and made by W. B. Gallup, Surveyor, which plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 58, at page 40; said property containing one (1) acre, more or less, and being of the dimensions shown on said plat. GPIN: 2400-66-8785 ConditionalRezonejChaplainLandTrustjProffer 6 'I 'I - 41 - Item V-L. 6. PLANNING ITEM # 59018 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED: Ordinance to REPEAL 91611.1 and AMEND 91618 of the City's Coastal Primary Sand Dune Zoning Ordinance re construction of bulkheads in the Sandbridge Beach Subdivision. DISTRICT 7 - PRINCESS ANNE DISTRICT Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin , Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None City Council Members Absent: None July 7, 2009 'I " 1 AN ORDINANCE TO REPEAL SECTION 2 1611.1 AND AMEND SECTION 1618 OF THE 3 COASTAL PRIMARY SAND DUNE ZONING 4 ORDINANCE PERTAINING TO THE 5 CONSTRUCTION OF BULKHEADS IN THE 6 SANDBRIDGE BEACH SUBDIVISION 7 8 Section Repealed: S 1611.1 9 Section Amended: S 1618 10 11 WHEREAS, the public necessity, convenience, general welfare and good zoning 12 practice so require; 13 14 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 15 BEACH, VIRGINIA: 16 17 That Section 1611.1 is repealed and Section 1618 of the City Zoning Ordinance 18 is hereby amended and reordained to read as follows: 19 20 ARTICLE 16. COASTAL PRIMARY SAND DUNE ZONING ORDINANCE 21 22 23 24 Soc. 1611.1. Bulkheads, etc. in tho Sandbridge Beach Subdivision. 25 26 The BO:lrd shall make an ongoing determination in the Sand bridge Be3ch 27 Subdivision to determine which structures or properties are in clear 3nd imminent 28 d3nger from erosion and storm damage due to severe wave action or storm surge, 3nd 29 the owners of such structures or properties shall not be prohibited from erecting and 30 maintaining protective bulkhe3ds or other equiyalent structur31 improvements of the 31 type, size and configuration as approved by the Board. The Board shall not impose 32 arbitrary or unreason3ble conditions upon its approval of any such bulkhe3d or other 33 structural improvement. The Board shall maintain a continuing responsibility to ensure 34 that each bulkhead or structural improvement constructed under the authority of this 35 section is maintained in a condition that is safo, structur311y sound, and otherwise in 36 confcrmity 'Nith the conditions imposed by the Board. Upon submission of an application 37 to the Board pursuant to this section, as a requirement for approval, tho applicant must 38 consent in writing to any subsequent construction approved by the Board whereby an 39 adjacent property o'....ner desires to tie in a bulkhe3d at no 3dditional cost with the 40 bulkhead proposed by the 3pplicant. Such consent shall constitute a 'J.'3i'ler of property 41 line defenses rel::lting to the bulkhead line. 42 43 As used in this section, the "Sandbridgo Be::lch Subdivision" me3ns the area 44 bounded on the north by Dam Neck Na'Jal B:lse, on the weet by S~mdpiper Road, and 45 on the south by Little Island Park. 46 i I I 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 IIII Sec. 1618. Exemptions. (a) Nothing in article shall affect any project or development (i) for which a valid building permit or final site plan approval was issued prior to July 1, 1980; (ii) which, if no building permit is required for such project, including a locally approved mining operation, was commenced prior to July 1, 1980, and certified as exempt by the commission or the Wetlands Board; or (ii) approved by the city council pursuant to Ordinance No. 931, which was the coastline management ordinance in effect from March 26, 1979, to July 1, 1980. Nothing in this section excludes from regulation any activity which expands or enlarges a project already in existence or under construction. (b) The Board shall make an ongoing determination in the Sandbridge Beach subdivision of the area bounded on the north by Dam Neck Naval Base, on the west by S~:mdfiddler Sandpiper Road, and on the south by VVhite Cap Lane Little Island Park, to determine which structures or properties are in clear and imminent danger from erosion and storm damage due to severe wave action or storm surge. The owners of structures or properties so defined shall not be prohibited from erecting and maintaining protective bulkheads or other equivalent structural improvements of a type, size and configuration approved by the Board. The Board shall not impose arbitrary or unreasonable conditions upon its approval of any such bulkhead or other structural improvement but shall maintain a continuing responsibility to ensure that each bulkhead or structural improvement constructed under the authority of this section is maintained in a condition which is safe, structurally sound, and otherwise in conformity with the reasonable conditions imposed by the Wetlands Board. At the time the application is submitted, the applicant shall consent in writing to any subsequent construction which may occur whereby an adjacent property owner desires to tie in a bulkhead at no additional cost with that bulkhead proposed by the applicant. Such consent shall be considered a waiver of property line defenses relating to the bulkhead line. Adopted by the Council of the City of Virginia Beach, Virginia, on the th day of July, 2009. I I i I II APPROVED AS TO CONTENT: I . APPROVED AS TO LEGAL SUFFI IENCY: f ~J' Department I City Attorney's Office CA11133 R-2 May 12, 2009 - 42- Item v'M.1. APPOINTMENTS ITEM # 59018 BY CONSENSUS, CITY COUNCIL RESCHEDULED the following APPOINTMENTS: HEALTH SERVICES ADVISORY BOARD PARKS AND RECREATION COMMISSION 'I II July 7, 2009 i I I - 43 - Item V.M.2. APPOINTMENTS ITEM # 59019 Upon NOMINA TION by Vice Mayor Jones, City Council APPOINTED: Gerald Cox Unexpired thru 12/31/11 HISTORIC PRESERVATION COMMISSION Voting: 11-0 Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin , Ron A. Villanueva, Rosemary Wilson and James 1. Wood Council Members Voting Nay: None City Council Members Absent: None 'I II July 7, 2009 I - 44- Item v.P. ADJOURNMENT ITEM # 59020 Mayor William D. Sessoms, Jr. DECLARED the City Council Meeting ADJOURNED at 6:18 P.M. C!1~___!2:__7!!v/~ Beverly 0. rhooks, CMC Chief Deputy City Clerk ~;:~~ City Clerk William D. Sessoms, Jr. Mayor City of Virginia Beach Virginia The Public Comment re Non Agenda Item adjourned at 6:38 P.M. July 7, 2009 II II - 45 - PUBLIC COMMENT PARKING AT LASKIN ROAD Louinda and Wayne Jones, 329 Laskin Road, Flowers by Wayne Jones, Phone: 428-2901. At the present time, their group of eight (8) shops has "pull in" parking. The City is considering the elimination of this type of parking and replace same with parallel parking and possibly, in the future to install meters. Many of their customers are "in and out" customers. The meters would involve a loss of their clientele. Theresa Parson, owner ofGoldworks, 317 Laskin Road, Phone: 428-7651, in business for thirty-one (31) years. Ms. Parsons picked this location because of the parking. Petitions in SUPPORT of the effort to keep angle parking from the shops located in the 300 Block of Laskin Road were presented and are hereby made a part of the record. Mickey Bisese, 1325 Dunstan Lane, Phone: 435-2253, a business owner at Laskin Road. Mr. Bisese advised his store is comprised of 5,000 square feet and contains upscale swimwear. The shops at Laskin Road are all very appealing. Mr. Biese presented petitions in SUP PORT of his effort to keep angle parking. LIGHT RAIL CITIZEN ADVISORY COMMMITTEE SELECTION PROCESS Reid Greenmun, 2405 Cliff Hunter Drive, Phone: 615-4533, Vice Chairman - Virginia Beach Ta'(payer's Alliance, distributed information relative the Light Rail Citizens Advisory Committee Selection Process. This process would allow the involvement of citizens. The VBTA is concerned about the appearance of an organizational conflict of interest in the selection of the Miles Agency as a subcontractor to HDR Engineering. The criterionfor the local preferred alternative fails to include reducing traffic congestion. PARKING ORDINANCE Patrick McCrossan, 2564 Hunters Run Trial, Phone: 763-8084, spoke re the Parking Ordinance. His Statement is hereby made a part of the record. Mr. McCrossan volunteers as a voting election official and his wife at the Virginia Beach Aquarium. Mr. McCrossan spoke re parking his Wrangler Jeep at one of the municipal parking lots. His wife met him later as she was attending a women's church revival to enjoy the entertainment at the Oceanfront. He and his wife decided to return home in only one of their vehicles rather than driving both and left the Wrangler Jeep in the parking lot. The vehicle was towed. Councilman Uhrin advised "Do not Tow" stickers are available, which, if acquired, would prevent this from occurring in the future. Councilman DeSteph suggested this be discussed under City Council Comments. The Mayor concurred. AMERICAN FLAGS ON BOARDWALK Craig Hudgins, 2801 County Place, Phone: 426-5197, represented the organization "Restore the Founders Vision ". He is also a Board Member of the American Congress for Truth and a former Marine. Mr. Hudgins appealed to the City Council to have representations of the American Flag on the Boardwalk during appropriate Holidays. He witnessed no display on his visit this past weekend. Mayor Sessoms requested the City Manager review and determine the reason the American Flag was not displayedfor the Fourth of July. July 7, 2009 II II - 46- HARRASSMENT Shelley Pendleton, 109 Spruce Court, Apartment 102, Phone: (757) 839-6116. Because of the meetings with Members of City Council and the Police Department, Ms. Pendleton received correspondence advising the Mayor's Office did not believe the City would be able to assist in her concern re harassment. The two meetings were brief without any follow-ups. Ms. Pendleton requested a meeting with the Mayor. The Mayor advised: "My letter stands ". The Public Comment was adjourned by the Mayor at 6:38 P.M July 7, 2009 :: : 'I II - 44- Item v.P. ADJOURNMENT ITEM # 59020 Mayor William D. Sessoms, Jr. DECLARED the City Council Meeting ADJOURNED at 6:18 P.M. ~~--~:_-~-~!~ Beverly 0. Hooks, CMC Chief Deputy City Clerk Uidckz.- uth Hodges Fraser, MMC City Clerk William D. Sessoms, Jr. Mayor City of Virginia Beach Virginia The Public Comment re Non Agenda Item adjourned at 6:38 P.M. July 7,2009