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SEPTEMBER 22, 2009 CITY OF VIRGINIA BEACH "COMMUNITY FOR A LIFETIME" CITY COUNCIL MA YOR WILLIAM n. SESSOMS ,JR" At-Large VI( 'E MA YOR LOUIS R. JONES, Bayslde - District oJ GLENN R. DAVIS, Rose Hall- District 3 WILLIAM R. DeSTEPH, At-Large HARRY E. DIEZEL, Kempsville - District 2 ROBERT M. DYER" eenteMlle - District / BARBARA M. HENLEY. Princess Anne - District 7 JOHN E. UHRIN, Beach - District 6 RON A. VILLANUEVA, At-Large ROSEMARY WILSON, At-Large JAMES L WOOD, Lynnhaven -District 5 CITY COUNCIL APPOINTEES CITY MANAGER JAMES K SPORE (,llY A7TORNEY MARK D STILES ('ITY ASSESSOR JERALD BANAGAN ('i7Y AUDITOR l.YNDON S. REM/AS CITY CLERK RUTH HODGES FRASER, MMC CITY COUNCIL AGENDA 22 SEPTEMBER 2009 1. CITY COUNCIL'S BRIEFINGS: - Conference Room - A. LITTLE CREEK and FORT STORY JOINT BASING INITIATIVE Captain William W. Crow, Commanding Officer, Little Creek B. DEVELOPMENT AUTHORITY ANNUAL REPORT Don Jellig, Chairman II. CITY MANAGER'S BRIEFINGS: A. FY 2009 UNAUDITED FINANCIAL RESULTS Patti Phillips, Director - Finance B. FIELD HOUSE EMERGENCY SHELTER David L. Hansen, Deputy City Manager 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 1:30 PM 4:00 PM 'I "I VI. FORMAL SESSION AGENDA - Council Chamber - 6:00 PM A. CALL TO ORDER - Mayor William D. Sessoms, Jr. B. INVOCATION: Reverend Chris Bowen St. Michaels Lutheran Church C. PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA D. ELECTRONIC ROLL CALL OF CITY COUNCIL E. CERTIFICATION OF CLOSED SESSION F. MINUTES 1. INFORMAL and FORMAL SESSIONS September 8, 2009 G. FORMAL SESSION AGENDA H. PRESENTATION MILITARY ECONOMIC DEVELOPMENT ADVISORY COMMISSION (MEDAC) Rear Admiral Richard Dunleavy, USN Ret. I. PUBLIC HEARING 1. LEASE OF CITY-OWNED PROPERTY - 408 Sandbridge Road Sandbridge Water Tank J. CONSENT AGENDA K. ORDINANCES/RESOLUTIONS 1. Ordinance to A WARD a Lease to New Cingular Wireless PCS, LLC on a portion of City property at the site of the Sandbridge Water Tank, 408 Sandbridge Road, re a communications tower and related equipment. 'I "I 11 2. Ordinances to AUTHORIZE and DIRECT the City Manager to execute: a. Lease for five (5) years with Friends of Ferry Plantation House, Inc. at 4136 Cheswick Lane b. Police Mutual Aid Agreement with the Counties of Accomack, Gloucester, Isle of Wight, James City, Northampton and York, the Cities of Chesapeake, Franklin, Hampton, Newport News, Norfolk, Poquoson, Portsmouth, Suffolk, Virginia Beach and Williamsburg and the Town of Smithfield. c. Franchise Agreement with Ice Masters, Inc., t/a Rink Specialists, re a pilot program to allow an ice skating rink at the 31st Street Park November 9, 2009 through February 22,2010 3. Ordinance to AUTHORIZE a temporary encroachment into a portion of City-owned right-of-way for SAMUEL W. ZIMMER to remove an existing block paver wall and a portion of an existing brick walk to construct and maintain a six (6) inch cobblestone curb and modify an existing cobblestone planter at 53-Yz Street and 5303 Ocean Front A venue. DISTRICT 5 - L YNNHA VEN 4. Ordinance to ESTABLISH the Virginia Beach Field House Emergency Shelter at the Princess Anne Commons Athletic Village which can accommodate an upper level Category Two Hurricane and TRANSFER $425,000 from Constitution Drive Extended to the Virginia Beach Field House Emergency Shelter. 5. Resolution to COMMEMORATE Robert F. "Bob" Hedrick for his service to his country, his community and his successful efforts to build Tidewater "brick by brick" into what it is today. 6. Resolution to REFER to the Planning Commission, for consideration and recommendation, an Ordinance to AMEND S211 of the City Zoning Ordinance (CZO) re political campaign signs. 7. Resolution re the 2010 Community Legislative Agenda and REQUESTING support of same by the City's local General Assembly Delegation. 8. Resolution to REQUEST the Secretary ofthe Navy to name a Littoral Combat Ship after the City of Virginia Beach (USS Virginia Beach) and REQUEST support of same by the City's local Congressional Delegation. 9. Resolution to AUTHORIZE the City Manager to execute all necessary agreements for an allocation of $1 ,000,000 through the VDOT Revenue Sharing Program to Nimmo Parkway - Phase V-A. 10. Resolution to AUTHORIZE and DIRECT the City Manager to execute an Agreement with Hampton Roads Sanitation District (HRSD) for the relocation of the Witchduck- Kempsville Road force main. II Iii II L. PLANNING 1. Variance to S4.4(b) of the Subdivision Ordinance that requires all newly created lots meet the requirements of the City Zoning Ordinance (CZO) for COASTAL LIVING BUILDERS, L.L.C./WILLIAM T. KILEY & HELEN R. PAXTON to resubdivide the four (4) lots into two parcels for the development of two single-family dwellings at 800 Greensboro Avenue. DISTRICT 6 - BEACH DISTRICT STAFF RECOMMENDATION PLANNING COMMISSION RECOMMENDATION APPRO V AL NO RECOMMENDATION DUE TO A TIE VOTE 2. Application of LOLA L. MORRIS for Modification of Conditions (previously approved by City Council on June 8, 1987) to allow additional low-intensity businesses at 3725 West Stratford Road. DISTRICT 4 - BA YSIDE DISTRICT RECOMMENDATION APPROV AL 3. Application of NEW CINGULAR WIRELESS PCS, LLC (T/A AT&T) for a Conditional Use Permit re a communication tower at 6009 Blackwater Road. DISTRICT 7 - PRINCESS ANNE Deferred on May 26, 2009 RECOMMENDATION APPROVAL 4. Application of VIRGINIA BEACH SCHOOL BOARD for a Conditional Use Permit re wind energy conversion system (freestanding) at 1677 Harpers Road. DISTRICT 6 - BEACH DISTRICT RECOMMENDATION APPROV AL 5. Application of ROBERT ARNOLD for a Conditional Use Permit re alternative residential development at Blackwater Road and Shirley Landing Drive. DISTRICT 7 - PRINCESS ANNE DISTRICT RECOMMENDATION APPROV AL 6. Application of WILLIAM E. and MONA D. GRAINGER for a Conditional Use Permit re a bulk storage yard at 2432 Bowland Parkway. DISTRICT 6 - BEACH DISTRICT RECOMMENDA TION APPROV AL II III M. APPOINTMENTS: AGRICULTURAL ADVISORY COMMITTEE BOARD OF ZONING APPEALS CHESAPEAKE BAY PRESERVATION AREA BOARD HEALTH SERVICES BOARD HISTORICAL REVIEW BOARD N. UNFINISHED BUSINESS O. NEW BUSINESS P. ADJOURNMENT COMMUNITY SUMMIT MONDA Y, OCTOBER 5, 2009 6:00 - 8:30 PM CONVENTION CENTER - ROOMS 5-A,B,C CITY COUNCIL REVIEW OF COMMUNITY SUMMIT TUESDAY, OCTOBER 6,2009 8:30 AM CONVENTION CENTER - ROOMS 4-D,E Thursday, November 12th ANNUAL JOINT MEETING General Assembly, City Council and School Board ******** If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 385-4303 *********** Agenda 9/22/09gw www.vbgov.com :i: Iii 'III 'I - 1 - MINUTES VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia September 22, 2009 Mayor William D. Sessoms, Jr., called to order the CITY COUNCIL BRIEFING re LITTLE CREEK and FORT STORY JOINT BASING INITIATIVE in the City Council Conference Room, Tuesday, September 22,2009, at 1:30 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., Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Absent: John E. Uhrin [Entered: 1:50 P.M] September 22, 2009 II III - 2 - CITY COUNCIL BRIEFING. LITTLE CREEK and FORT STORY JOINT BASING INITIATIVE ITEM # 59207 1:30 P.M. The City Manager introduced Captain William W. Crow, Commanding Officer - Little Creek, who presented detailed information re the Future Joint Expeditionary Base Little Creek-Fort Story (JEBLCFS), the primary East Coast Base supporting "Overseas Contingency Operations". The Briefing topics will encompass: Mission, Joint Basing, JEBLCFS Overview, Major Commands, Population Overview, Fort Story Uniqueness, JEBLCFS changes, summary and questions Joint Expeditionary Base Little Creek-Fort Story (JEBLCFS) MISSION · The Little Creek - Fort Story Family Team will contribute to maximum military readiness by providing the best installation customer service possible. "L"OVE our installation, those who depend upon it and allfellow family team members. · "C"ARE about our installation, those who depend on it and all fellow family team members. · "F"OCUS on providing the best services and quality of life for our installation, those who depend on it and all fellow family team members. "S"TRENGTHEN our services and commitment to our installation, those who depend on it and all fellow family team members. · "L "IVE every workday to the fullest extent for our installation, those who depend on it and all fellow family team members. "G"IVE the very best that we have to offer to our installation, those who depend on it and fellow family team members. What Is Joint Basing? DoD Authorized: BRAC 2005 - Joint Basing · JB concept: consolidate installation management functions for adjacent installations - Save Defense $$: combine similar support functions Use best business practices - efficient and effective · Ensure war-fighting capabilities preserved/enhanced - Not a cookie-cutter approach · JB does not combine missions: - Army is Army and Navy is Navy - JB institutes common output level standards Official Title: Joint Expeditionary Base Little Creek-Fort Story OUTCOME: MOST EFFICIENT AND EFFECTIVE JOINT OPERATION POSSIBLE BY TEARING DOWN SERVICE WALLS! September 22, 2009 1'1 01'1 - 3 ~ CITY COUNCIL BRIEFING LITTLE CREEK and FORT STORY JOINT BASING INITIATIVE ITEM # 59207 (Continued) Joint Basing Overarching Goal · Soldiers/Sailors 1st" - "Seamless Transition" Built a Cohesive Team - GREAT CHEMISTRY · "Trail Blazer" - JEBLCFS has led the way - Head start - Joint services exist at both locations MWR Fort Story MWR capabilities enhanced Cape Henry Inn Tourism - Now an Armed Forces Recreation Center Retain Access to Public Landmarks - Cape Henry Lighthouses/First Landing Tourist Attraction The Way Ahead · 1 Feb 09: Initial Operational Control (IOC) began - Phased transfer (Activation) of operational responsibility from Army · 1 Oct 09: Full Operational Control (FOC) - Final personnel and property management transfers · Complete access to public sites. No change! No job loss from Joint Basing implementation JEBLCFS OVERVIEW · Major East Coast Base Supporting OCO - 139 Resident Commands - 59 Piers, 3,947 Acres, 7.6 Miles Beachfront - 18 Navy and Auxiliary ships 69 Small Craft (LCACILCUIMPFU/NSWG RHIBS) - 1,155 Base Housing Units · Renovation/upgrades ongoing · 337 units inside fence line September 22, 2009 1'1 iii - 4 - CITY COUNCIL BRIEFING LITTLE CREEK and FORT STORY JOINT BASING INITIATIVE ITEM # 59207 (Continued) Population Overview NAB FS Total population: 17,211 USN 9,536 190 USA 51 1,320 Estimated Payroll: $850K USMC 248 50 USCG 145 0 Based on current Civilian 3,842 290 Regional Economic Students 224 226 Impact Report and Others 433 656 JEBLCFS data, the Joint Total 14,479 2,732 Base will be the largest military employer in the I I I City of Virginia Beach. 9 Major Commands Two (2) of Five (5) United States Navy Enterprises at JEBLCFS Naval Network Warfare Command (3 Star & three 1 Star) (LC) · Naval Exoeditionarv Combat Command (2 and 1 Star) (LC) · First Naval Construction Division (2 Star) (LC) · Board of Inspection and Survey (1 Star) (LC) Expeditionary Strike Group 2 (2 Star) (LC) · Army 7th Transportation Group (Joint Logistics Over the Shore (JLOTS) (FS) Naval Special Warfare Group 2 (4 SEAL Teams) (LC) · Naval Special Warfare Group 4 (SEAL/SWCC) (LC) Naval Special Operations Units (FS) · Navy EOD Training and Evaluation Unit TWO (FS) Marine Corps Training Advisory Group (FS) · Expeditionary Warfare Training Group (USMC/USN) (LC) · Army Coastal Water Purification Training Center (FS) · School of Music (USN/USA/USMC) (LC) September 22, 2009 'I "I II - 5 - CITY COUNCIL BRIEFING LITTLE CREEK and FORT STORY JOINT BASING INITIATIVE ITEM # 59207 (Continued) Fort Story Uniqueness Unique Terrain . The onlv bare-beach JLOTS site in the Department of Defense moD) inventorv . 3.6 miles of beach terrain along both the Chesapeake Bay and the Atlantic Ocean Only East Coast Advanced Explosive Ordnance Disposal Training facility . Only base that meets ALL Navy Special Warfare training requirements Based on the most recent economic impact report the Navy has put out for the region, once Fort Story and Little Creek become the Joint Expeditionary Base (JEBLCFS), they will be the largest military employer (by population) in the City. Changes you can expect: New command logo, address change and population growth JEBLCFS Logo Commander Crow distributed information depicting the meaning of the Shield and Crest of the Logo. Said information is hereby made a part of the record. September 22, 2009 "I 'I - 6 - CITY COUNCIL BRIEFING LITTLE CREEK and FORT STORY JOINT BASING INITIATIVE ITEM # 59207 (Continued) WIN-WIN for JEBLCFS and Citv of VA Beach! · Previously attempted by Little Creek Timing not right to facilitate change - Joint Basing created the perfect opportunity Name change required formal paperwork submittal Post Office has already verbally approved request to change address to Virginia Beach Post Office establishing milestones · Formal approval letter forthcoming No impact to Fort Story No zip code conflicts · OUTCOME: Joint Base and resident commands identifYing with correct single city: Virginia Beach JEBLCFS: on the Grow! · Future growth - EOD Group 2 Reorganization (Increase 175) - Littoral Combat Ship (Increase minimum of 650 personnel) · Future home port for East Coast Fleet (20 planned) · Maintenance population support not included - Expected continued SPECW AR growth By the numbers - Little Creek · Pre 9-11 Population: 9,930 · Jan 2007 Population: 12,336 Jan 2008 Population: 14,413 · Jan 2009 Population: 14,479 JEBLCFS Base Population 1 Oct 09: 17,211 2012 Projected JB Population: 18,000+ · Diverse in nature, JEBLCFS will grow and evolve · Constant revamping to meet ongoing needs for OCO Both properties are valued national joint training asset Joint Logistics Over The Shore movements Full mission profile special operations training JOINT BASE MISSION: JEBLCFS will contribute to maximum military readiness by providing the best installation customer service possible. Mayor Sessoms advised The Honorable Paul D. Fraim, Mayor - City of Norfolk, is in support of the LITTLE CREEK and FORT STORY JOINT BASING INITIATIVE. September 22,2009 1:1 III - 7 - CITY COUNCIL BRIEFING DEVELOPMENT AUTHORITY ANNUAL REPORT 2:00 P.M. ITEM # 59208 Donald Jellig, Chairman - Virginia Beach Development Authority, introduced the Development Authority Members in attendance: Dan H Brockwell and Shewling Moy Wong. Mr. Jellig presented the Annual Report. Chairman Jellig advised the Mission Statement. The City of Virginia Beach Development Authority (VDBA) exists to facilitate the expansion of the tax base and employment opportunities in the city through increased business development and redevelopment. The Virginia Beach Development Authority plays a vital role in making the City Council goal of "Grow the Local Economy" a reality. Chairman Jellig cited the 2008/2009 Accomplishments: More than 1,474 new jobs $183,750,000 new capital investment Twenty-four (24) new company locations Fifty-four (54) company expansions As a comparison, Charlotte, N.C saw a decrease injobsfrom last year at a rate of25.6%. The Development Authority has evolved over the past year. Not only have the Commissioners attended one meeting per month, but their Liaison arrangement has been strengthened. Every member of the Development Authority is involved in a minimum of two (2) outside assignments to work with the Economic Development staff, or other city leaders, as projects are pursued. Financial Accomplishments Land Sale of Liberty Tax Corporate Headquarters $170,300 of Rental Income from Virginia Beach National Golf Course Total Taxes and Rent Collected at Verizon Wireless Virginia Beach Amphitheater $1.5- MILLION (FY2008/09) Virginia Beach Amphitheater has provided the City S15-MILLION over the lastfourteen (14) years. Phase III of The Town Center of Virginia Beach has completed construction and this includes: two Columbus Buildings, McCormick and Schmick, Studio 56 Condos, Sandler Center, the Westin Hotel and Luxury Condos, Parking Garage containing 947 spaces, and the pedestrian bridge connecting Dick's Sporting Goods. September 22, 2009 ,1'1 - 8 - CITY COUNCIL BRIEFING DEVELOPMENT AUTHORITY ANNUAL REPORT ITEM # 59208 (Continued) The Approved Phase IV Development Agreement encompasses: VBDA approved Public Facility Revenue Bonds totaling approximately $56.6- MILLION for Phase IV which includes: Block 2 parking garage Prejunction space connecting to the Aloft Hotel meeting space This will leverage private sector investment of $158-MILLION Economic Development Investment Program EDIP Funds $ 1,875,000 Capital Investment $67,362,725 Jobs Created 786 Additionally, $30,575 of EDIP funding was approved to conduct a study on the development of Historic Kempsville. Workforce Development Business Survey Job Class Assessment Connect 16,000 Existing Military with Employment Opportunities During the past year, VBDAformed a Workforce Development Committee that works closely with the VBDED staff on Workforce Development activities. The Liaison Committee has been instrumental in the following areas: o Creating a business survey to document workforce development challenges o Conducting an assessment of job classification of exiting military to better place them with employment opportunities o Developing initiatives to connect 16,000 exiting military with employment opportunities An example of Smart Growth and Strategic Planning is the development of a Master Plan for Northampton/Burton Station: · Public workshops conducted · Design principles defined · Funding approved in 2010 budget September 22, 2009 Ii 11'1 II - 9 - CITY COUNCIL BRIEFING DEVELOPMENT AUTHORITY ANNUAL REPORT ITEM # 59208 (Continued) Ocean a Land Use Conformity Program Awarded Incentive Grant Totaling: $105,850 Cataldo Builders Peerless Carpet Care and Restoration Services Callahan Management Services Tidewater Fleet Supply $22,366 $21,861 $11,622 $50,000 Existing Industry Initiatives and Accomplishments Met with Top City Businesses Hosted Small Business Roundtable with thirty-nine (39) City Business Owners VBDA Workforce Liaison Committee Focused on Workforce Needs Marketing Missions (Forty-seven) 47 National Trips (Five) 5 International Trips Familiarization Tour hosted in Virginia Beach Launched Powerful Forces At Work represents: · New Website · Video Testimonials · Targeted E-mail Blasts · Wall Street Journal Campaign Challenges · Reduced Funding in Operating Budget · EDIP Funding · Machinery and Tools Tax Land Inventory · Capital Maintenance of Amphitheater The Economic Development Investment Program fund continues to be declining revenue along with the existing reserves earmarkedfor special projects---The annual allocation for EDIP is approximately $2.1-MILLION. The Phase IV EDIP funding commitment isfor $3.5-MILLION, and in order to meet that commitment, the Authority is setting aside $J.5-MILLION per year to meet this commitment. In addition, Laskin Gateway is $J.8-MILLION over 2 years. Therefore, between these projects, the EDIP is extinguished for the next two years. September 22, 2009 11 .11111 - 10- CITY COUNCIL BRIEFING DEVELOPMENT AUTHORITY ANNUAL REPORT ITEM # 59208 (Continued) The Verizon Wireless Virginia Beach Amphitheater is in its 14th season and continues to provide a revenue stream to our City, but now is the time to commence thinking about long term capital maintenance. During the past fiscal year, VBDA only received $882,000 to fund the SGA work---As of August 3 t't, the Authority has an uncommitted EDIP balance of $2.1-MILLION in the current reserves. As the Authority supports the Mayor's initiative to incentivize the biomedical industry sector to locate in Virginia Beach- the Authority wants to be more competitive and secure long-term viability. The Authority isfallingfurther behind in their competitive nature without funds available to offer as incentives. The Authority is e also exploring ways to modify the policy to become more competitive. The Authority finds themselves falling further behind in their competitive nature without funds available to offer as incentives. The A uthority is also exploring ways to modify the policy to become more competitive. Concerning the Machinery and Tool Tax, which is an item the Authority wishes to remind City Council there is a potential for elimination of this tax entirely. This would save our businesses approximately $1. 7-MILLION per year. This would give a strategic advantage over other localities in the recruitment of high performance manufacturing businesses. This will position the City in a favorable light in VBDA 's effort to attract green industries Chairman Jellig extended appreciation to City Council Liaisons' Vice Mayor Louis Jones and Rosemary Wilson, for their participation and dedication. Council Lady Henley requested a Strategic Growth Area planning exercise for the ITA (Interfacility Traffic Area). This will allow all the stakeholders to be present at the various charrettes. This area is a great opportunity for economic development as the future Southeastern Parkway will pass through this area. September 22, 2009 I i III - 11 - C IT Y MANA G E R 'S B R IE FIN G FY 2009 UNAUDITED FINANCIAL RESULTS 2:30 P.M. ITEM # 59209 Patricia Phillips, Director of Finance, presented the FY 2009 UNAUDITED FINANCIAL RESULTS. Ms. Phillips recognized Don Barnett - Comptroller, Miryam Woodson - Principal Accountant, and Loretta Brown - Executive Assistant. The Annual Financial CAFR will be presented on December 8, 2009 (which will contain the official audited results). Preliminary Status - Unaudited Results For Fiscal Year Ended June 30, 2009 Status of Four Major Funds General Fund - School Operating Fund Water and Sewer Storm Water 80% FY2009 Year To Date General Fund Compared to Historic Trend June 30, 2009 100% WI 8 60% c: ~ .. '" ! ~ 40% .... o .. c: ~ : 56.9% 20% 0% ~ _ _ M ~ ~ _ ~ ~ _ ~ ~ ...... Historic Trend -Percent of FY09 Budget City Council has adopted a policy of maintaining a General Fund Balance of 8-12% of subsequent year's revenues. Undesignated General Fund Balance at June 30, 2009, is projected at $92.6- MILLION, or 8.86% of FY 2010 revenues September 22, 2009 - 12 - C IT Y MANA G E R 'S B R IE FIN G FY 2009 UNAUDITED FINANCIAL RESULTS ITEM # 59209 (Continued) I' Iii 11 General Fund Statement of Revenues, Changes in Fund Balance - U nau For the Fiscal Year Ended June 30, 2009 (UNAUDITED) Revenues Expenses - City & School Excess Revenues Over (Under) Expenses Fund Balance - July 1 Fund Balance - June 30 Budaet $1,088.7 1,138.4 (49.7) 19~.,~. t14~~~ _ Less: Reservations Undesignated Fund Balance Actual $1,060.5 1,()~t) .~ (36.4) $ 1.92.2.. $ 155.8 63.2 $~92.6 Real Estate Tax Revenue .June 30, 2005 - 2009 $9.4 Million Over Budget $600------------------------------------------------------------------------------------------------------------------------------------------- $479.2 $487.6 $500 ------------------------------ --------------- ------------------------------------ ---$469:"6---s<i74:6----------------------------. $400 $200 $100 $0 FY 2005 FY 2006 FY 2007 DBudget .Actulll Coltectlon FY 2008 FY 2009 September 22, 2009 II ,I - 13 - C IT Y MANA G E R 'S B R IE FIN G FY 2009 UNAUDITED FINANCIAL RESULTS ITEM # 59209 (Continued) General Fund Local Revenues Under Budget by $27.6-MILLION (IN MILLIONS) Variance Real Estate $ 9.4 Personal Property (12.0) General Sales (4.6) Utility Taxes (0.5) Telecommunications Taxes (2.3) Business Licenses (2.1) Hotel Taxes (1.2) Restaurant Meals (0.4) Cigarette Taxes (1.4) Fines and Forfeitures (2.0) Virginia Aquarium (1.8) Police False Alarms (1.0) Permits, Privilege Fees & Regulatory Licenses (1.6) Interest (2.9) Other Local Revenue (3.2) $ (27.6) September 22, 2009 $100 $80 c ~ i .. $60 w .. ~ c !! 8! $40 II "III - 14 - C IT Y MANA G E R 'S B R IE FIN G FY 2009 UNA UDITED FINANCIAL RESULTS ITEM # 59209 (Continued) $100 Personal Property Taxes - Loc (excludes PPTRA) June 30, 2005 - 2009 $12 Million Under Budget $80 ____n________________________________________________________--------------------- $60 $40 --- $20 --- $0 I DBudget _Actual Collection General Sales Ta., June 30, 2005 - 200 ~~~__~W__"_W__w_n_.w_.w~"w__u. _wn__.__wnw_n____w_.____________n_n._u.__n_____ __n_n____wu_____.._n_n______.__.______________ $4.6 Million Under Budget ..._...un_.._______n______u___________n_______________.un__________________...___________uw_uun___._...______....----- $0 FY 2005 FY 2006 FY 2007 FY 2008 FY 2009 DBudget .Actual Collection September 22, 2009 - 15 - C I T Y MANA G E R 'S B R I E FIN G FY 2009 UNAUDITED FINANCIAL RESULTS ITEM # 59209 (Continued) Business Licens June 30,2005 - 200 $2.1 Million Under Budget $60 $50 .--..-.-------.--------..--------..-----..-..-.------..-------...-----.--.--------..---------.----------.-------..-------...-----....---- $40 $30 $10 $0 FY 2005 FY 2006 FY 2007 FY 2008 FY 2009 aBudget .Actual Collection Collections: FY09 $41.0-MILLION, FY08 $41.8-MILLION, Down (1.9% Hotel Room Taxes June 30,2005 - 2009 $35 $30 $25 c ~ i .. .. $20 " ~ c 1t ~ $15 $10 $1.2 Million Under Budget ~~_NNN~~_._____.__W__.__._________._._____n___________________________________.____________________.______________n_________________________ _____._.m_m__._.m__________.________.._._______.__.___________.___._______.__.__________.___________..._____________S2!l.1.--...------.-1 $22.6 $23.0 $23.6 $23.0 . $21.0 $21.7 j $19.4 $19.2 $20.0 -------------------------------- ---.------ -.--------- ----- I $0 FY 2005 FY 2006 FY 2007 FY 2008 FY 2009 m Budget .Actual Collection 'I "1 II September 22, 2009 'I "I II - 16 - C IT Y MANA G E R 'S B R IE FIN G FY 2009 UNAUDITED FINANCIAL RESULTS ITEM # 59209 (Continued) Restaurant Meal Taxe June 30, 2005 - 2009 $80 $400,000 Under Budget $70 $80 ___________n_mn___m_m___mm__mm______m__________m__m_m_______m___m___mn_mn__nm______________ $47.3 $46.7 $49.1 $48.1 $48.7 $48.3 $50__m__________________________________..____________n__________.________m___________n______n__________n_____mm_'_ $40 $30 $20 $10 $0 FY 2005 FY 2006 FY 2007 FY 2008 FY 2009 aBudget .Actull Cotlectlon Collections: FY09 - $48.3-MILLION, FY08 - $48. I-MILLION, Up (.4% FY2009 Year To Date General Fund E Compared to Historic Tren June 30, 2009 100.0% 100% i! 80% a '6 8- .ll 60% j '0 .. c ~ 40% Cl. 20% 0% Jul Sep Oct Nov Dee Jan feb Apr May Jun Mar Aug _Historic Trend -x-Percent of fY09 Budget September 22, 2009 - 17 - C IT Y MANA G E R 'S B R I E FIN G FY 2009 UNAUDITED FINANCIAL RESULTS ITEM # 59209 (Continued) General Fund Expenditures For Fiscal Year Ended June 30, 2009 (IN MILLIONS) Budget* Actual City Expenses $ 772.4 $ 745.7 School (City Funding) 366.1 351.2 Total Expenditures $ 1,138.4 $ 1,096.9 General Fund Expenditures Less than Budget by $41.5-MILLION (Includes Encumbrances) (Unaudited) >> School Reversion $14.9 >> City 26.7 . Police $ 3.2 . Human Services 3.4 . Public Works 5.2 . Libraries 1.1 . Communications & Info Tech 2.1 . Convention & Visitor Dev 1.0 . Debt Services 1.1 . Other Departments & Transfers 9.6 General Fund Undesignated Fund Balance June 30, 2009 (in Millions) Total Fund Balance June 30,2009 Less Reservations and Designations Loans Department Reservations Operating Budget-2010 City CIP - 2010 School Revenue Sharing Undesignated Fund Balance $11.2 4.5 4.8 33.9 8.8 Percent of Budgeted FY 2010 Revenues $155.8 63.2 $ 92.6 "1 "I Variance $ 26.7 14.9 $ 41.5 8.86% September 22, 2009 - 18 - C IT Y MANA G E R 'S B R IE FIN G FY 2009 UNAUDITED FINANCIAL RESULTS ITEM # 59209 (Continued) School Operating Fund - Revenues and Expenses For the Fiscal Year Ended June 30, 2009 (In millions) Budget $ 332.0 2.8 364.5 14.8 $ 714.1 $ 317.1 3.3 361.4 14.1 $ 695.9 Actual REVENUES City Local From Commonwealth From Federal Government Total Revenues EXPENDITURES AND ENCUMBRANCES $ 724.2 $ 705.9 , I Variance $ (14.9) 0.5 (3.1) (0.7) (18.2) $ $ 18.3 *Total Reservation in the General Fund of $8.8-MILLION after reduction for revenue sharing formula Water and Sewer Enterprise fund Revenues, expenses and Changes in Net Assets For the Years Ended June 30, 2008 and 2007 (In Millions) 2009 Total Revenues $ 100.2 Total Expenses (95.2) Increase in Net Assets $ 5.0 575.5 Total Net Assets - July 1 Total Net Assets - June 30 $ 580.5 2008 $ 108.7 (94.1) $ 14.6 560.9 $ 575.5 September 22, 2009 II ,I II - 19 - C IT Y MANA G E R 'S B R IE FIN G FY 2009 UNAUDITED FINANCIAL RESULTS ITEM # 59209 (Continued) Storm Water Enterprise Fund Revenues, Expenses and Changes in Net Assets For the Years Ended June 30, 2009 and 2008 (In Millions) 2009 2008 Total Revenues $ 23.3 $ 22.3 Total Expenses (13.4) (14.5) Increase in Net Assets $ 9.9 $ 7.8 Total Net Assets - July 1 218.3 210.5 Total Net Assets - June 30 $ 228.2 $ 218.3 Summary ~ Actual performance - Close to projections ~ Fund Balance within Policy, but lowest since 2003 ~ Fund Balance used for one time needs but also support operations ~ Departments continue to manage their budgets ~ Savings on Debt Service ~ Real Estate and Personal Property - impact on FY 2009 ~ Southeastern Public Service Authority (SPSA) impact on FY2009 ~ Audited Financial Statements on December 8 ~ Begin FY 2010 Interim Briefings on October 27 ~ Potential General Obligation (GO) Bonds refundingfor additional savings Mrs. Philips advised as of June 30, 2009, Southeastern Public Service Authority (SPSA) owned Virginia Beach $9.2-MILLION The Forbearance Agreement indicated our payment would be delayed or forbeared for a total of no more than $26.6-MILLION or June 30, whichever comes first. The plan entails as of July 1, 2010, SPSA would commence payments on a monthly reimbursement and in October 2010, SPSA would not only continue to pay current amounts, but would start repaying the $26.6- MILLION September 22, 2009 11'1 II - 20- C IT Y MANA G E R 'S B R IE FIN G FIELD HOUSE EMERGENCY SHELTER 2:46 P.M. ITEM # 59210 David L. Hansen, Deputy City Manager, provided an Initiative Report re an opportunity to provide an enhanced hurricane category two shelter at the new Virginia Beach Field House. The Initiative Report and spreadsheet indicating the identified shelters within the City is hereby made a part of the record. The Virginia Beach Field House, started with a vision from a partnership, legally known as Virginia Beach Field House, LLC, who have developed and successfully operated a 75,000 square foot field house in Fredericksburg, Virginia. Virginia Beach Field House, LLC saw the opportunity to provide that same type of indoor recreational amenity, but at a much larger scale, for the Hampton Roads area and targeted Virginia Beach as the location. In October 2006, on a parallel path, the City of Virginia Beach Department of Parks and Recreation commissioned a market analysis called the Indoor Sports Venue Feasibility Study to determine if such a facility would be a good fit for the Princess Anne Commons area. The Virginia Beach Field House is now planned to be in the heart of the Princess Anne Commons - Athletic Village, on a leaseD area of 12. 7 acres, with a building size of 150,000 square feet and future expansion potential of another 35,250 square feet. On July 23, staff held a meeting with multiple department representation and John and Tom Wack from the Chesapeake Sports Group. The Wack brothers are the owners/partners of VBFH, LLC, and are completing design for the construction of the Virginia Beach Field House in our Princess Anne Commons Athletic Village adjacent to the Sportsplex. The purpose of the meeting was to determine the intended occupancy category of the facility the structural capacity of building to withstand wind loads and the capacity of the skin to resist wind borne debris impacts. Virginia Beach Field House, LLC. John and Tom Wack Chesapeake Sports Group 150,877 square feet groundfloor 24,074 square feet mezzanine @3200occupancy capacity Multi surface indoor sports facility Six (6) artificial grass soccer/jield hockeyllacrosseljlag football Eight (8) volleyball/basketball sport court surfaces Full service Kitchen Walk in cooler & freezer Grill and fryers under hood Pizza ovens Bathrooms: 10/6 mens; 16 women's; 4 unVhandicap Doors: Entrance (4xdouble) + 6roll-up + 9 emergency September 22, 2009 1'1 011 - 21 - C IT Y MANA G E R 'S B R IE FIN G FIELD HOUSE EMERGENCY SHELTER ITEM # 59210 (Continued) Virginia Beach Shelters for Public Evacuation >> 13 Primary Shelters >> 10 Secondary Shelters >> 22 rated to withstand Hurricane Category I (74-95MPH sustained winds) >> 1 rated to withstand Hurricane Category 2 (94-110 MPH sustained winds) >> Category 2 sheltering capability: 600 evacuees Shelter inventory could benefit by increasing the Category 2 stormfacilities. Virginia Beach Field House Current design: 95% Construction start: November 18, 2009 Opening: Labor Day 2010 STRUCTURE >> Upper level Category 2 (J 1 0 MPH sustained & 130 MPH 3sec gust) >> Masonry wall to 10' >> Metal sandwich panels above >> Standing Metal seam roof DOORS & WINDOWS >> Low level Hurricane Category I (74 - 95MPH sustained) >> Commercial grade glass in entrance way >> Acrylic panels in clerestory at the eaves >> Commercial grade roll up doors. Upgrade Storm Resistance What does it take to upgrade the storm resistance and still stay on schedule? Can the facility be modified to reach the new 2009 ICC 500 building code requirement of 130MPH sustainedJ160MPH 3-second gust? NO >> @$1.4-MILLIONadditional >> Delays project opening by a year Can the facility be modified to withstand a Hurricane category 2 storm of 11 OMPH sustainedJ130MPH 3-second gust? YES >> @$345,000for designing and installing upgraded glass and doors of impact resistance types to withstand wind borne debris requirements >> Modifications, if approved, in mid September will keep construction timeline on schedule for an September 2010 opening Can additional electrical upgrades be added to the facility to provide for sheltering requirements to include special care evacuees? YES >> @$64,000for electrical improvements >> 36 duplex outlets w/20 amp dedicated circuits >> Quick disconnect for generator >> Generator slab September 22. 2009 III II - 22 - CITY MANA GER 'SBRIEFING FIELD HOUSE EMERGENCY SHELTER ITEM # 59210 (Continued) Staff Recommendation To City Council ~ Approve staff to finalize agreement with the Virginia Beach Field House, LLC. to: .:. Modify windows and doors to withstand a Hurricane Category 2 storm .:. Add electrical enhancements .:. Develop a long term agreement to rent the Field House as an evacuation shelter during declared emergencies ~ Approve ordinance to establish CIP#3-150. ~ Appropriate $425,000 for facility upgrades ~ Transfer funding from CIP 2-208 Constitution Drive Extended Item K.4. is scheduledfor the City Council Session Formal Agenda: Ordinance to ESTABLISH the Virginia Beach Field House Emergency Shelter at the Princess Anne Commons Athletic Village which can accommodate an upper level Category Two Hurricane and TRANSFER $425,000 from Constitution Drive Extended to the Virginia Beach Field House Emergency Shelter. The owners of Virginia Beach Field House, LLC have agreed to modify the design and construction of the Field House in the Princess Anne Commons Athletic Village to accommodate an upper level Hurricane Category Two. During a declared emergency, this facility could also be prepared to receive those citizens who may require special care. The additional structural and electrical cost, which will be borne by the City are estimated at $425.000, and this amount can be transferred from CIP 2-208 Constitution Drive Extended. Sufficient funding will remain in CIP 2-208 and the project schedule will not be impacted. The $425.000 will be placed in a newly created capital project, CIP-3-150, Virginia Beach Field House Emergency Shelter. Councilman DeSteph expressed concern re funding because of short falls addressed in Patricia Phillips, Director of Finance, FY 2009 Unaudited Financial Results Presentation. Mr. Hansen advised Council Lady Henley this facility would be planned and organized to have the capability to provide for special needs individuals. Councilman Villanueva inquired if the DHLfacility located in the Greater Kempsville, Bayside area and at Phase I construction had been reviewed as a possible Hurricane Category II facility. Mr. Hansen advised this facility will be reviewed. September 22, 2009 II ,I II - 23 - CITY MANA GER 'SBRIEFING FIELD HOUSE EMERGENCY SHELTER ITEM # 59210 (Continued) Councilman Diezel hopes the capabilities of the eleven (11) Shelters adjacent to this particular site would be calculated according to capacity and shut down at least 'half of them. Level 2 Hurricane construction is far superior to what exists. Once the storm commences, unless the occupants are already in the Field House Emergency Shelter, in a Level 1 or Level 2, by what method will you get the individuals to the shelter with the flooding points that surround? As an example, at the Kempsville/Princess Anne intersection, there are four (4) ways to go to the shelter. A Level 1 storm reduces this to two (2). Kempsville and Witchduck Roads would be impassable. FEMA now has a different standard than the State Building Code and because of the liability issues, Councilman Diezel is still concerned re encouraging and designating shelters. Mr. Hansen advised Landstown High School is the only other Level II Hurricane Shelter. Council Lady Henley advised $II2-MILLION would not be of much assistance re a road project. However, with this Field House Emergency Shelter, the City can better house individuals during the storms. Vice Mayor Jones advised the new western Bayside Recreation Center is in the Capital Improvement Program for next year. Enough funding is provided to assure the Center is also a Category II Storm Shelter. Councilman DeSteph suggested a Workshop be scheduled to discuss this Shelter and the possibilities of Grants specifically associated with reliefi.e. FEMA. September 22, 2009 1,1 "111 - 24- CITY COUNCIL COMMENTS 3:25 P.M. ITEM # 59211 Mayor Sessoms advised Beverly 0. Hooks, Chief Deputy City Clerk, is absent due to a fall in which she broke her left shoulder. Mayor Sessoms and City Council wished her well. ITEM # 59212 Council Lady Wilson referenced Admiral Metz 's presentation at the Republican Breakfast on Saturday, September 19, 2009. There are many concerns relative the City not doing enough re lobbying to maintain our military assets. Frank Roberts might be a good person to contact. ITEM # 59213 Councilman DeSteph advised last Saturday the Stihl Lumberjack Challenge was held at Mount Trashmore. This was a spectacular event attended by approximately 2,000. The most interesting was the "Jack and Jill" World Championship. He participated on the other side of the saw with a lady champion and saw the "two inch cookie" developing from a huge log. The Police and Fire Department, Parks and Recreation were represented. There were positive comments from all attendees. ITEM # 59214 Council Lady Henley and Council Lady Wilson attended the Sandbridge Civic League, Saturday morning. There was a very interesting presentation by Lee Rosenberg, City of Norfolk Environmental Norfolk, re a plant named Beach ViTex. Council Lady Henley had requested Bob Matthias review as to whether the sale of the product could be banned and included in the General Assembly package. Mr. Rosenberg has detected several plantings at Sandbridge and it is an extremely damaging and evasive species to beaches. Much of these plantings are on private property in Sandbridge. It is a very involved process to eradicate this species. North Carolina has banned the sale of this plant. Council Lady Henley has requested the City Manager review the locations of this plant on public property in Sandbridge as well as other beach front locations and commence an eradication process. Robert Matthias, Assistant City Manager, advised last year the General Assembly established a Commission on evasive species. The City will coordinate with this Commission to have ViTex identified as an evasive species. This Commission can suggest regulations to ban the sale in Virginia. Unfortunately, the Governor basically cut most of the funding from the evasive plant program; however, regulations can be pursued. September 22, 2009 Ilil II - 25 - CITY COUNCIL COMMENTS ITEM # 59215 Mayor Sessoms advised he visited Atlantic Shores prior to coming to City Hall today. The "Pin Up Boys" were recognized. They will participate in the Neptune Festival Park on Saturday. Funds derivedfrom the "Pin Up Boys" Calendar will be given to the Volunteer Rescue Squad (EMS) ITEM # 59216 With reference to the Governor's proposed budget cuts, Mayor Sessoms advised $75,000 could be made available to the City's Constitutional Officers through October, 2009 (Commissioner of Revenue, Treasurer, Sherriff, Commonwealth's Attorney and the Clerk of Court). This would be an interim measure.lfthis is not done, nine (9) staffmembersfrom the Clerk of Court might have to be cut immediately. The City Manager is comfortable with the $75,000. Councilman Wood did not concur with taking on the responsibility of the Commonwealth. Councilman DeSteph advised the only one who can close the Courts is the Chief Judge with the involvement of the Sherriff's office. Councilman DeSteph strongly urged the Mayor meet with the Governor as quickly as possible. September 22, 2009 II 'I II - 26 - AGE N DA REV IE W S E S S ION ITEM # 59217 3:39 P.M. Council Lady Henley referenced: 1. Ordinance to AWARD a Lease to New Cingular Wireless PCS, LLC on a portion of City property at the site of the Sandbridge Water Tank, 408 Sandbridge Road, re a communications tower and related equipment. Deputy City Attorney Macali advised he spoke to the President of the Civic League re the Lease and there did not appear to be any issues of concern. Deputy City Attorney Macali advised the Conditional Use Permit should be scheduledfor City Council in January. ITEM # 59218 2.c. Franchise Agreement with Ice Masters, Inc., tla Rink Specialists, re a pilot program to allow an ice skating rink at the 3rt Street Park November 9,2009 through February 22,2010 Councilman Uhrin advised this is a one-year pilot program and reminded the City Council that a big component of the Dome Site development is a permanent "high end" ice skating rink. Councilman Uhrin requested some verbiage in the lease agreement which makes the vendor aware of this future possibility. ITEM # 59219 6. Resolution to REFER to the Planning Commission, for consideration and recommendation, an Ordinance to AMEND 9211 of the City Zoning Ordinance (CZO) re political campaign signs, Council Lady Henley inquired re the possibility of a Resolution of encouragement requesting respect for sign ordinances and not install political signs until sixty (60) days prior to an election (request voluntary compliance). Mayor Sessoms suggested the political campaigners could concur among themselves, they would not install until 60 days prior (Gentleman's Agreement). The City Attorney advised the deletion of durationallimits for political campaign signs is the result of a United States District Court decision which held that such limits on signs posted on private property are unconstitutional. ITEM # 59220 7. Resolution re the 2010 Community Legislative Agenda and REQUESTING support of same by the City's local General Assembly Delegation. Mayor Sessoms advised the Hampton Roads Realtors requested Proposal 3 and 5 be pulledfrom the Legislative Agenda. This will allow a committee to be formed to discuss their working together 3. Allow the City to Make Exterior Repairs on Certain Structures Requested By the Department of Housing and Neighborhood Preservation. 5. Authority to Hold a Property Owner's Agent, Property Manager, or the Responsible Party, Accountablefor Violations of the Rental Ordinances September 22, 2009 1,1 ,1111 - 27- AGE N DA REV IE W S E S S ION ITEM # 59220 (Continued) Councilman Davis request shall be discussed and ADDED to the Agenda:: REQUEST that State Legislation provide localities a choice between providing new employees with a "Defined Benefit Retirement Plan" or a "Defined Contribution Retirement Plan" Councilman Diezel requested Item 16a be removedfrom the Legislative Agenda: 16a. Alternate Version: lob-Related Disability Retirement: Alternate Eligibility Guidelines Councilman DeSteph requested Item 20 be DEFERRED to have information provided re the effect. 20. Modify the Virginia Telecommunication Sales and Use Tax Act with regard to the Communications Services Provider Discount Item 24 shall be removedfrom the Legislative Agenda: 24. Property Tax Abatements for Homes on the Virginia Landmark Register Council Lady Henley will vote a VERBAL NA Y on item 2. 2. Passing Bicycles Transportation Funding shall be added ITEM # 59221 BY CONSENSUS, the following items shall compose the CONSENT AGENDA: K. ORDINANCES/RESOLUTIONS 1. Ordinance to A WARD a Lease to New Cingular Wireless PCS, LLC on a portion of City property at the site of the Sandbridge Water Tank, 408 Sandbridge Road, re a communications tower and related equipment. 2. Ordinances to A UTHORIZE and DIRECT the City Manager to execute: a. Lease for five (5) years with Friends of Ferry Plantation House, Inc. at 4136 Cheswick Lane b. Police Mutual Aid Agreement with the Counties of Accomack, Gloucester, Isle of Wight, James City, Northampton and York, the Cities of Chesapeake, Franklin, Hampton, Newport News, Norfolk, Poquoson, Portsmouth, Suffolk, Virginia Beach and Williamsburg and the Town of Smithfield. c. Franchise Agreement with Ice Masters, Inc., tla Rink Specialists, re a pilot program to allow an ice skating rink at the 3rt Street Park November 9,2009 through February 22,2010 September 22, 2009 ,II II - 28 - AGE N DA REV IE W S E S S ION ITEM # 59221 (Continued) 3. Ordinance to A UTHORIZE a temporary encroachment into a portion of City- owned right-of way for SAMUEL W. ZIMMER to remove an existing block paver wall and a portion of an existing brick walk to construct and maintain a six (6) inch cobblestone curb and modify an existing cobblestone planter at 53-Y2 Street and 5303 Ocean Front Avenue. DISTRICT 5 - LYNNHA VEN 4. Ordinance to ESTABLISH the Virginia Beach Field House Emergency Shelter at the Princess Anne Commons Athletic Village which can accommodate an upper level Category Two Hurricane and TRANSFER $425,000 from Constitution Drive Extended to the Virginia Beach Field House Emergency Shelter. 5. Resolution to COMMEMORATE Robert F. "Bob" Hedrickfor his service to his country, his community and his successful efforts to build Tidewater, "brick by brick ", into what it is today. 6. Resolution to REFER to the Planning Commission, for consideration and recommendation, an Ordinance to AMEND $211 of the City Zoning Ordinance (CZO) re political campaign signs. 7. Resolution re the 2010 Community Legislative Agenda and REQUESTING support of same by the City's local General Assembly Delegation. 8. Resolution to REQUEST the Secretary of the Navy name a Littoral Combat Ship after the City of Virginia Beach (USS Virginia Beach) and REQUEST support of same by the City's local Congressional Delegation. (REQUESTED BY VICE MAYOR SESSOMS/COUNCIL LADY WILSON) 9. Resolution to AUTHORIZE the City Manager to execute all necessary agreementsfor an allocation of$1, 000, 000 through the VDOT Revenue Sharing Program to Nimmo Parkway - Phase V-A. 10. Resolution to A UTHORIZE and DIRECT the City Manager to execute an Agreement with Hampton Roads Sanitation District (HRSD) for the relocation of the Witch duck-Kempsville Road force main. K,3. (SAMUEL W. ZIMMER Encroachment) shall be DEFERRED, BY CONSENT, until the City Council Session of October 13, 2009) K.7. (2010 Community Legislative Agenda) will be discussed during the Formal Session. September 22, 2009 'I 'I - 29- AGE N DA REV IE W S E S S ION ITEM # 59222 BY CONSENSUS, the following items shall compose the PLANNING BY CONSENT AGENDA: 1. Variance to 94.4(b) of the Subdivision Ordinance that requires all newly created lots meet the requirements of the City Zoning Ordinance (CZO)for COASTAL LIVING BUILDERS, L.L.C./WILLIAM T. KILEY & HELEN R. PAXTON to resubdivide the four (4) lots into two parcels for the development of two single- family dwellings at 800 Greensboro Avenue. DISTRICT 6 - BEACH DISTRICT 2. Application of LOLA L. MORRISfor Modification of Conditions (previously approved by City Council on June 8, 1987) to allow additional low-intensity businesses at 3725 West Stratford Road DISTRICT 4 - BAYS1DE DISTRICT 3. Application of NEW CINGULAR WIRELESS PCS, LLC (T/ A AT&T) for a Conditional Use Permit re a communication tower at 6009 Blackwater Road. DISTRICT 7 - PRINCESS ANNE 4. Application of VIRGINIA BEACH SCHOOL BOARD for a Conditional Use Permit re wind energy conversion system (freestanding) at 1677 Harpers Road DISTRICT 6 - BEACH DISTRICT 5. Application of ROBERT ARNOLD for a Conditional Use Permit re alternative residential development at Blackwater Road and Shirley Landing Drive. DISTRICT 7 - PRINCESS ANNE DISTRICT 6. Application afWILLIAM E. and MONA D. GRAINGERfor a Conditional Use Permit re a bulk storage yard at 2432 Bowland Parkway. DISTRICT 6 - BEACH DISTRICT Item L.l. (COASTAL LIVING BUILDERS, L.L.C/WILLIAM T. KILEY and HELEN R. PAXTON Variance) shall be DEFERRED until the City Council Session of October 27,2009, BY CONSENT. Item L.5. (ROBERT ARNOLD CONDITIONAL USE PERMIT) shall be ADOPTED, BY CONSENT, WITH REVISED CONDITION NO.4. "..minimum of J() 18.54 acres of proposed parcel 1 containing the western-most portion of the site. " September 22, 2009 II 1111 - 30 - ITEM # 59223 Mayor 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 MA TTERS: Discussion, consideration of, or interviews of prospective candidates for employment, assignment, appointment, promotion, performance, demotion, salaries, disciplining or resignation of specific public officers, appointees or employees pursuant to Section 2.2-3711 (A)(1) Council Appointments: Boards, Commissions, Committees, Authorities, Agencies and Appointees Evaluation of Council Appointees PUBLICLY-HELD PROPERTY: Discussion or consideration of the, acquisition, or of the disposition of publicly-held property, where discussion in an open meeting would adversely affect the bargaining position or negotiating strategy of the public body pursuant to Section 2.2-3711 (A)(3). Acquisition/Disposition of City Property: Princess Anne District Princess Anne District Princess Anne District Upon motion by Councilman Wood, seconded by Councilman Villanueva, City Council voted to proceed into CLOSED SESSION at 4:03 P.M. September 22, 2009 "I II II - 31 - ITEM # 59223 (Continued) 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 (Closed Session: 4:03 P.M. - 4:30 P.M.) (Dinner: 4:30 P.M. - 5:20 P.M.) September 22, 2009 II 1'1 - 32 - FORMAL SESSION VIRGINIA BEACH CITY COUNCIL September 22, 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, September 22, 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: Reverend Chris Bowen St. Michaels Lutheran Church 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 a/so 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 a part 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 1 0, 2007, is hereby made a part of the record September 22, 2009 'I "I - 33 - Council Lady Rosemary Wilson DISCLOSED her husband is a principal in the accounting firm of Goodman and Company and is directly and indirectly involved in many of Goodman and Company's transactions. However, due to the size of Goodman and Company and the volume of transactions it handles in any given year, Goodman and Company has an interest in numerous matters in which her husband is not personally involved and of which she does not have personal knowledge. In order to ensure her compliance with both the letter and the spirit of the State and Local Government Conflict of Interests Act, it is her practice to thoroughly review the agenda for each meeting of City Council for the purpose of identifYing any matters in which she might have an actual or potential conflict. If during her review she identifies any matters, she will prepare and file the appropriate disclosure letter to be recorded in the official records of City Council. Council Lady Wilson regularly makes this disclosure. Council Lady Wilson's letter of January 27, 2004, is hereby made a part of the record Council Lady Rosemary Wilson DISCLOSED she is a Real Estate Agent affiliated with Prudential Decker Realty. Because of the nature of Real Estate Agent affiliation, the size of Prudential, and the volume of transactions it handles in any given year, Prudential has an interest in numerous matters in which she is not personally involved and of which she does not have personal knowledge. In order to ensure her compliance with both the letter and the spirit of the State and Local Government Conflict of Interests Act, it is her practice to thoroughly review the agenda for each meeting of City Council for the purpose of identifYing any matters in which she might have an actual or potential conflict. If during her review she identifies any matters, she will prepare and file the appropriate disclosure letter to be recorded in the official records of City Council. Council Lady Wilson regularly makes this disclosure. Council Lady Wilson's letter of January 27, 2004, is hereby made a part of the record September 22, 2009 II 'I - 34 - Item V-E. CERTIFICATION ITEM # 59224 Upon motion by Councilman Dyer, seconded by Councilman DeSteph, 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: II-a 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 September 22, 2009 II "I I RESOLUTION CERTIFICATION OF CLOSED SESSION VIRGINIA BEACH CITY COUNCIL WHEREAS: The Virginia Beach City Council convened into CLOSED SESSION, pursuant to the affirmative vote recorded in ITEM #59223, Page 30, 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. ~ City Clerk September 22, 2009 'I "I - 35 - Item V-F.I ITEM # 59225 Upon motion by Councilman Dyer, seconded by Council Lady Wilson, Council APPROVED the MINUTES of the FORMAL SESSION of September 8, 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 September 22, 2009 II 1'1 - 36 - Item V-G.1. ADOPTAGENDA FOR FORMAL SESSION ITEM # 59226 BY CONSENSUS, City Council ADOPTED: AGENDA FOR THE FORMAL SESSION Upon motion by Councilman Diezel, seconded by Councilman DeSteph, City Council ADDED to the Consent Agenda and the 2010 Legislative Agenda: REQUEST that State Legislation provide localities a choice between providing new employees with a "Defined Benefit Retirement Plan" or a "Defined Contribution Retirement Plan ". 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 September 22, 2009 'I 'I STATE LEGISLATION THAT WOULD ENABLE LOCALITIES TO HAVE A CHOICE BETWEEN PROVIDING NEW EMPLOYEES WITH A DEFINED BENEFIT RETIREMENT PLAN OR A DEFINED CONTRIBUTION RETIREMENT PLAN Background Information: The City of Virginia Beach's employees participate in the defined benefit retirement plan that is offered by Virginia Retirement System ("VRS"). This defined benefit retirement plan is based on a formula that includes age at retirement, average final compensation, and years of service to calculate a retiree's benefit, but the benefit is not based upon accumulated contributions and gains or losses in each member's account; At least once every two years VRS actuarially computes the annual required rates of contributions for the City of Virginia Beach, as a separately rated employer, based upon an actuarial valuation of the retirement allowances and other defined benefits payable on behalf of active Virginia Beach employees in VRS. The valuation includes actual service and disability retirements, assumptions on life spans, disability rates, and turnover of the workforce. The City of Virginia Beach contributes both the employee portion (5%) as well as the employer portion of the contributions. Current combined rates for the employer and employee portion of VRS rates totals 16.48% of total covered payroll, and is paid entirely by the City of Virginia Beach. This rate has increased substantially since Virginia Beach joined VRS in 1963, when the total rate was 10%. In addition, this rate is expected to increase further to compensate for market losses incurred by VRS. Currently, an employee becomes vested in his or her VRS defined benefit account after five years of service. When a vested employee leaves City of Virginia Beach employment prior to retirement, the employee has two options: (1) maintain the VRS account to be accessed at retirement based on VRS formulas; or (2) seek a refund of the 5% employee contributions; In a defined contribution plan: · individual employee accounts would be maintained, and in creating the plan a cap on the contributions either by individual employees or by aggregate cost can be imposed, thereby eliminating uncertainty about the City of Virginia Beach's future benefits obligation and reducing the uncertainty associated with the fluctuation in employer contributions under the current VRS defined benefit plan; · the benefit would be based upon the contributions, plus or minus any gains or losses in each employee's individual account. Accordingly, the amount of the City's employer contribution would not change due to losses or gains in the employee accounts; 'I 'I . a defined contribution plan could provide employees with substantially more control over their investment options; . employees can be immediately vested in the assets contained in their individual accounts; · the assets have greater portability and allow increased options for employees who may leave City employment prior to retirement, including the potential capability of rolling over funds into a 401 (k), 401 (a), government 457, or IRA. Request: The City of Virginia Beach urges the General Assembly to amend the Code of Virginia to enable localities to have a choice between providing new employees with the current defined benefit retirement plan or a new defined contribution retirement plan to be administered by VRS; and that the new defined contribution retirement plan should be fully portable. Other localities have begun offering this to their employees, and Virginia localities should be able to offer similar benefits. In addition, the financial issues faced by VRS are burdensome. 11'1 I - 37 - Item V-G.2. MAYOR'S RECOGNITION ITEM 59227 Mayor Sessoms RECOGNIZED the following Boy Scout in attendance to earn their merit badges: Scout Troop Pack 504 Chowanoc District, Tidewater Council Richard Rancor Troop Leader Ben Rancour Jacob Larion Nicholas Albro Aaron Gaw/ick Andrew Bousseau Mayor Sessoms presented the Scouts with a City Seal Pin. September 22, 2009 I II II ,II - 38 - Item V-HI. PRESENTATION ITEM 59228 Rear Admiral Phil Olsen, USN, Retired Vice-Chairman - Military Economic Development Advisory Committee (MEDAC), presented information re the Committee which is composed of senior retired military officers, senior enlisted, senior executive service as well as one (1) Ph.d. MEDAC COMMITTEE MEMBERS Rear Admiral Richard Dunleavy - Chairman Rear Admiral Phillip R. Olson - Vice Chairman Council Member John E. Uhrin - Council Liaison VADM Ed Clexton Roger Whiteway, Ph. D VADM Joseph S. Donnell Adalberto M. Diaz RADM William J. Ecker Donald Jellig RADM Mark Gemmill Jerry Miller RADM Fenton Priest Paul Pierce RADM Fred Ruehe Robert Rieve Joseph Gianascoli Daniel R. Walters Luke Hillier MEDAC meets monthly, 3-4:30 P.M., in the Economic Development Conference Room Commands Visited! Briefed in 2009 . January: MIDLANT Headquarters - Fred Crecelius - Senior Executive Service (SES) · February: NEXCOM - RADM Bianchi March: Fleet Forces - VADM Daly April: Fleet Forces -Mark Honecker - Senior Executive Service (SES) · June: NEXCOM - RADM Bianchi . July: MIDLANT Headquarters and NETWARCOM - RADM Boensel and VADM Starling · August: NAB Little Creek - Captain Crow Achievements to Date .:. Website (www.vbmilcomcom) - online .:. USN awareness - City briefs to Virginia Beach and area Commands (previous page) .:. Burton Station availability briefings .:. Attendance/City representations at Department of Defense related conferences and meetings (e.g. Joint Warfighting Conference) .:. Partnered with Regent University to conduct an assessment survey of the exiting military from the Navy .:. Input to Hampton Roads Military and Federal Facilities Alliance (HRMFFA) .:. Engaged with Tidewater Government Industry Council and the Tidewater Association of Service Contractors (TGIC & TASC) to identify major issues of interest within the local defense contracting community .:. Hosted networking event during May 2009 Joint Warfighting Conference at Virginia Beach Conference Center .:. Partnered with Virginia Beach Department of Economic Development in supporting Atlantic Dive Supply (ADS) Warrior's Expo, private defense industry trade event held at the Virginia Beach Westin September 22, 2009 IIII1 - 39 - Item V-HI. PRESENTATION ITEM 59228 (Continued) Future Initiatives . Expand the Website with Economic Development Marketing and Workforce Initiatives Transition Website to a regional entity . Market Burton Station as military "Warfare Center of Excellence" location · Assist staff with Little Creek Joint Initiative planning: .:. LiUoral Combat Ship (LCS) arrival and logistics considerations .:. Impact of Fort Story annexation .:. Future of NETW ARCOM .:. Impact/future needs of Expeditionary Command .:. Impact/future needs of Riverine Force (home ported at Little Creek) .:. Reconciliation of LiUle Creek Master Plan with Burton Station Strategic Growth Analysis plan · Receive assessment survey from Regent University Develop follow up military workforce development strategy based on results of Regent University study . Engage Tidewater Government Industry Council and the Tidewater Association of Service Contractors (TGIC, T ASC), local commands and private defense industry on issues of concern such as in-sourcing of contract personnel · Other .:. Monitor/assist Hampton Roads Military Facilities Alliance (HRMFFA) with Mayport CVN issues and Outlying Landing Field (OLF) .:. Support/advise Department of Economic Development with defense contracting initiatives .:. Support City initiative with the Secretary of the Navy to name future LiUoral Combat Ship (LCS) "USS Virginia Beach" .:. Explore possible expansion of Coast Guard presence in Virginia Beach September 22, 2009 111111 - 40- Item V-H2. PRESENTATION ITEM 59228 (Continued) Rear Admiral Phil Olsen, USN, Retired. presented information re the Littoral Combat Ship ~ LCS are intended for operations in littoral zones (close to shore) -.... The Navy is purchasing a group of new futuristic sea platforms called the Littoral Combat Ship (LCS) ~ There are two designs ~ First LCS was delivered in December 2006 ~ Comparable in size to today's frigates o However, the LCS is so technology advanced, it will require less than 'half the crew of a frigate to carry out missions ~ LCS is built around modules of capability/technology ~ Although it has a core crew of approximately thirty (30) personnel, ifmission requires the use of helicopters, an aviation crew of twenty (20) individuals is added ~ Also module crew size may vary; usually fifteen (15) sailors for each module September 22, 2009 1,1 II II - 41 - Item V-H2. PRESENTATION ITEM 59228 (Continued) LOCKHweD ""."T"'-.-+ Platform is for a 377 ft long traditional mono hull that is 42 ft wide at the waterline and has a draft of 13ft General Dynamics design features a revolutionary trimaran hull that is 417 feet long and 103.7 feet wide at the waterline and has a draft of 15 feet ~ The modules can carry out specialized missions o Mine Warfare o Anti Submarine Warfare (ASJJ) o Special Forces Support o Intelligence Gathering ~ Total number of LCS to be purchased is approximately 55, with an expected 60-40 split between the West Coast and the East Coast ~ Naval Amphibious Base Little Creek is a likely homeportfor a number of these vessels ~ MEDAC is working with Commanding Officer, Little Creek, to understandfuture requirementsfor LCS homeported in Virginia Beach September 22, 2009 11'1 - 42- Item V-H2. PRESENTATION ITEM 59228 (Continued) Ships Names So Far ~ LCS (1) Freedom ~ LCS (2) Independence ~ LCS (3) Fort Worth ~ LCS (4) Coronado ~ LCS (5) Has Not Been Named Yet The City Council Resolution tonight, September 22, 2009, will encourage the Secretary of Navy to name future LCS, "USS Virginia Beach" September 22, 2009 - 43 - Item V-I.l. PUBLIC HEARING ITEM 59229 Mayor Sessoms DECLARED A PUBLIC HEARING: LEASE OF CITY OWNED PROPERTY 408 Sandbridge Road - Sandbridge Water Tank There being no speakers, Mayor Sessoms CLOSED the PUBLIC HEARING. II II September 22, 2009 II 1'111 - 44- Item V-K. ORDINANCES/RESOLUTIONS ITEM # 59230 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council APPROVED in ONE MOTION Items 1, 2a/b/e, 3,4,5,6,7 (AS REVISED), 8, 9 and 10 of the CONSENT AGENDA. Item 3 shall be DEFERRED, BY CONSENT, until the City Council Session of October 13, 2009. 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 September 22, 2009 II "I - 45 - Item V-K.l. ORDINANCES/RESOLUTIONS ITEM # 59231 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED: Ordinance to A WARD a Lease to New Cingular Wireless PCS, LLC on a portion of City property at the site of the Sandbridge Water Tank, 408 Sandbridge Road. re a communications tower and related equipment. 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 September 22, 2009 II 1,1 1 AN ORDINANCE TO AWARD A LEASE OF A PORTION OF 2 THE CITY PROPERTY LOCATED AT 408 SANDBRIDGE 3 ROAD (SANDBRIDGE WATER TANK SITE), FOR THE 4 PURPOSE OF CONSTRUCTING, MAINTAINING AND 5 OPERATING WIRELESS TELECOMMUNICATIONS 6 FACILITIES 7 8 WHEREAS, the Clerk has laid before the City Council an ordinance adopted June 9 23, 2008 providing for bids for a lease of a portion of the City property located at 408 10 Sandbridge Road for the purpose of constructing, maintaining and operating wireless 11 telecommunications facilities, together with a certificate of due publication of the same 12 once per week for two successive weeks in a newspaper of general circulation in the City, 13 in the manner prescribed by law; and 14 15 WHEREAS, New Cingular Wireless PCS, LLC has submitted the highest bid for the 16 award of such lease, which bid was delivered to the Mayor in open session on the day and 17 hour named in the advertisement and was read aloud; and 18 19 WHEREAS, the Mayor then and there inquired for any further bids, and none were 20 submitted; and 21 22 WHEREAS, in the opinion of the City Council, it is expedient and in the best 23 interests of the City that the said lease should be granted to New Cingular Wireless PCS, 24 LLC. 25 26 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 27 VIRGINIA BEACH, VIRGINIA: 28 29 1. That the bid of New Cingular Wireless PCS, LLC be, and hereby is, accepted, 30 and that the aforesaid lease be, and hereby is, awarded to New Cingular Wireless PCS, 31 LLC upon the conditions set forth in such lease. 32 33 2. That the name of New Cingular Wireless PCS, LLC shall be inserted 34 in the aforesaid lease, and that the City Manager shall execute, on behalf of the City, the 35 aforesaid lease entitled "Communication Tower Lease Agreement (Sandbridge Water Tank 36 Site), City of Virginia Beach, Lessor and New CingularWireless PCS, LLC," a summary of 37 the material terms of which is hereto attached and a copy of which is on file in the Office of 38 the City Attorney. 39 40 3. That all future rents received pursuant to the aforesaid lease shall be 41 dedicated to the Water and Sewer Utility Fund (241). 42 43 44 Adopted by the Council of the City of Virginia Beach, Virginia, on the 22nd day of 45 Sept!?mber, 2009. APPROVED AS TO CONTENT: :j m '4- APPROVED AS TO CONTENT: H CA11237 R-3 September 8,2009 ]]r- "I APPROVED AS TO LEGAL SUOJ~)filObj City Attorney's Office 2 II III Sand bridge Water Tank Site Communications Tower Lease Summary of Material Terms Parties: City of Virginia Beach and New Cingular Wireless, PCS, LLC Leased Area: 3,760 sq.' +/- portion of Sand bridge Water Tank Site, 408 Sand bridge Road (Princess Anne District). Tower height to be 174' max., incl. osprey perch and platform. Term: Initial10-year term; lessee has right to renew for three 5-year terms Rent: Base rent of $13,200/yr; additional rent of $5,400/yr (base rent and additional rent subject to annual 3% increases) Contingency: Lease is contingent on granting of conditional use permit and other governmental approvals; Other: Conditions of conditional use permit are incorporated by reference into the lease; lessee also must comply with applicable provisions of City Zoning Ordinance, other ordinances and state or federal laws. Lessee required to comply with security plan {site is fenced off from Public Utilities operations on site Lessee required to replace existing osprey nest and to comply with all federal, state and local laws, regulations, etc, applicable to ospreys. II III - 46- Item V-K.2a/hle. ORDINANCES/RESOLUTIONS ITEM # 59232 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED: Ordinance to AUTHORIZE a Lease for five (5) years with Friends of Ferry Plantation House, Inc. at 4136 Cheswick Lane Ordinance to AUTHORIZE a Police Mutual Aid Agreement with the Counties of Accomack, Gloucester, Isle of Wight, James City, Northampton and York, the Cities of Chesapeake, Franklin, Hampton, Newport News, Norfolk, Poquoson, Portsmouth, Suffolk, Virginia Beach and Williamsburg and the Town of Smithfield. Ordinance to AUTHORIZE re a Franchise Agreement with Ice Masters, Inc., t/a Rink Specialists, re a pilot program to allow an ice skating rink at the 3rt Street Park November 9,2009 through February 22,2010 * *A big component of the Dome Site development is a permanent "high end" ice skating rink. Councilman Uhrin requested some verbiage in the lease agreement which makes the vendor aware. 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 September 22, 2009 'I "I II 1 AN ORDINANCE AUTHORIZING THE CITY 2 MANAGER TO EXECUTE A LEASE FOR FIVE 3 YEARS WITH FRIENDS OF FERRY PLANTATION 4 HOUSE, INC. FOR 4,488 SQUARE FEET OF CITY- 5 OWNED PROPERTY LOCATED AT . 4136 6 CHESWICK LANE IN THE CITY OF VIRGINIA 7 BEACH 8 9 WHEREAS, the City of Virginia Beach (the "City") is the owner of that 10 certain 4,488 square foot parcel located at 4136 Cheswick Lane in the City of 11 Virginia Beach (the "Property"); 12 13 WHEREAS, Friends of Ferry Plantation House, Inc., a Virginia 14 corporation., ("FFPH") desires to lease the Property, including the historic Ferry 15 Plantation House on the Property (collectively, the "Premises"). FFPH has 16 agreed to lease the Premises from the City for five years with a lease payment of 17 One Dollar ($1.00) per year; 18 19 WHEREAS, Under prior agreements with the City, FFPH has been 20 restoring and operating the Premises since 1997; and 21 22 WHEREAS, FFPH and the City have agreed on terms of a lease where 23 FFPH will lease the Premises for use as a museum for the benefit of the general 24 public. 25 26 THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY 27 OF VIRGINIA BEACH, VIRGINIA: 28 29 That the City Manager is hereby authorized to execute a lease for the term 30 of five years between Friends of Ferry Plantation House, Inc. and the City of 31 Virginia Beach, for the 4136 Cheswick Lane, in accordance with the Summary of 32 Terms attached hereto and made a part hereof, and such other terms, conditions 33 or modifications deemed necessary and sufficient by the City Manager and in a 34 form deemed satisfactory by the City Attorney. 35 36 Adopted by the Council of the City of Virginia Beach, Virginia on the 22nd 37 day of septembQ~009. II II APPROVED AS TO LEGAL SUFFICIENCY AND FORM APPROVED AS TO CONTENT rAAk.~ ~ Ci i Attorney ~$;L' Manage ent servj~ - Facilities Management CA11017 Ilvbgov.comldfs 1 lapplicationslcitylawprodlcycom321 WpdocslDO 11 IP0051000 12241.DOC R-1 September 1, 2009 2 "I SUMMARY OF TERMS LEASE FOR THE USE OF 4,488 SQUARE FEET OF CITY~OWNED REAL PROPERTY LESSOR: City of Virginia Beach LESSEE: Friends of Ferry Plantation House, Inc. PREMISES: Approximately 4,488 square feet of City-owned property, including the historic Ferry Plantation House, located at 4136 Cheswick Lane in the City of Virginia Beach TERM: July 1,2009 through June 30, 2014. RENEWAL: None without further Council action. TERMINATION: City may terminate at any time on sixty (60) days' written notice to Lessee. RENT: Rent shall be one dollar ($1.00) per year. RIGHTS AND RESPONSIBILITIES OF FERRY PLANT A TION HOUSE, INC.: · Operate the Ferry Plantation House as a historic house museum, open to the general public at least 120 days and a total of 1000 hours per year. Will also operate ancillary functions to the museum, including a gift shop. · No repairs, alterations or renovations without the prior approval of the City's Historic Resources Coordinator, Building Maintenance Administrator, and when required by City Ordinance, the Historical Review Board. · Will maintain commercial general liability insurance coverage with policy limits of not less than one million dollars ($1,000,000) combined single limits per occurrence, issued by an insurance company licensed to conduct the business of insurance in Virginia. Such insurance shall name the City of Virginia Beach as an additional insured. Lessee shall provide a certificate evidencing the existence of such insurance. · Will assume the entire responsibility and liability for any and all damages to persons or property caused by any act or omission of the Lessee or its agents, etc. associated with the use of the Premises. II III RIGHTS AND RESPONSIBILITIES OF THE CITY: . . Subject to appropriation by City Council, the City shall be responsible for: (i) design and management of major maintenance projects; (ii) provide for payment of all utilities and fees pertaining to electricity, heating, fuel, water, sewer and solid waste collection; (Hi) maintaining the grounds. V:\applications\citylawprod\cycom32\ Wpdocs\D0271P0021OOO36112.DOC II ,'I II LEASE AGREEMENT THIS LEASE AGREEMENT ("Lease") is made as of the _ day of , 2009, by and between the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, ("Lessor") and the FRIENDS OF FERRY PLANT A TION HOUSE. INC., a Virginia corporation ("Lessee"). WITNESSETH: That for and in consideration of the terms, conditions, covenants, promises and agreements made, Lessor hereby leases and demises unto Lessee, and Lessee hereby accepts and leases from Lessor the following described property, (the "Leased Premises") located at 4136 Cheswick Lane, Virginia Beach, Virginia (GPIN 1478-92-7014), and more particularly described as follows: ALL THAT certain lot, piece or parcel of land, with the buildings and improvements thereon, situate, lying and being in the City of Virginia Beach, Virginia, being known, numbered and designated as Parcel B, as shown on that certain plat entitled, "SUBDIVISION OF OLD DONATION FARM, BA YSIDE BOROUGH, VIRGINIA BEACH, VIRGINIA", which said plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Deed Book 2763, Page 195 thru 197. 1. Term of Lease. The term of this Lease shall be for a period of five (5) years, commencing on July 1,2009 and ending at midnight on June 30, 2014. 2. Rent. The total rent for the term hereof shall be one dollar ($1.00) per annum, which the Lessee shall pay to the Lessor, in advance, at such address as may be designated by the Lessor or if none specified, to the address provided for delivering notices in Paragraph 4 of this Agreement. II ,I II 3. Use. The Lessee shall use and occupy the Leased Premises as a historic house museum and for purposes which complement the operation of a museum, including without limitation historical exhibits and related special events, receptions and meetings, operation of a gift shop, and exhibiting furnishings and other items which are intended to preserve the historic nature of a mid-nineteenth-century historic house museum. The building located on the Leased Premises ("Building") must remain open to the general public for at least 120 days and a total of at least 1,000 hours per year. The Lessee shall not use nor permit the Leased Premises to be used for any purpose other than as stated in this section of the Lease without the Lessor's prior written consent. 4. Notice. Any notice required or permitted to be given under this Lease shall be deemed to have been given or served when made in writing and (i) delivered in person as evidenced by a written receipt or (ii) mailed by certified mail or registered mail, return receipt requested, to the party who is to receive such notice at the address given below. When so mailed, the notice shall be deemed to have been given as of the date it was received, or in the event the intended recipient refuses delivery or fails or neglects to accept delivery, notice shall be deemed to be accepted on the date delivery was first attempted or notice of attempted delivery was first serviced by United States Postal Services. The addresses for notices are as follows: (A) To the Lessor: Department of Museums City of Virginia Beach 717 General Booth Blvd. Virginia Beach, Virginia 23451 2 II II I With copy to: Facilities Management Office City of Virginia Beach 2424 Courthouse Dr. Bldg 18, Room 228 Virginia Beach, VA 23456 (B) To the Lessee: Friends of the Ferry Plantation House, Inc. 4136 Cheswick Lane Virginia Beach, Virginia 23455 5. Name. The official name of the Lessee's operation shall be approved by the Lessor, which approval shall not be unreasonably withheld. 6. Sign. The Lessee shall erect a sign, which shall give recognition to the Lessor as a principal in the ownership and establishment of the Leased Premises. Such sign shall be constructed and maintained in accordance with applicable state and local building codes and ordinances. 7. Insurance Obligations. Lessee shall during the term of this Lease secure and maintain in full force and effect Workers' Compensation Insurance as required under Virginia code Title 65.2 and Commercial General Liability Insurance in an amount of not less than $1,000,000 combined single limits (CSL). The Commercial General Liability Insurance shall name Lessor as an additional insured. Lessee shall, upon request, furnish to Lessor certificates of all insurances required under this Paragraph. All policies of insurance required herein shall be written by insurance companies licensed to conduct the business of insurance in Virginia and acceptable to the City, and shall carry the provision that the insurance will not be canceled or materially modified without thirty days (30) prior written notices to the City. 3 II II 8. Termination. The Lessor or the Lessee may terminate this Lease with sixty (60) days advance notice, for any reason it considers appropriate, with no further obligation. 9. Default(s). In the event of any failure of Lessee to timely and fully comply with any provision or condition of this Lease, Lessee shall be in default. If such default shall continue for more than forty-five (45) days after written notice thereof shall have been mailed to Lessee, Lessor shall have all rights and remedies available at law including, but not limited to, termination of the Lease as of the date of such notice. 10. Hold Harmless/Indemnification. It is understood and agreed that Lessee hereby assumes the entire responsibility and liability for any and all damages to persons or property caused by or resulting from or arising out of any act or omission on the part of Lessee, its subcontractors, agents or employees under or in connection with this Lease or the performance or failure to perform any work required by this Lease. Lessee agrees to indemnify and hold harmless the Lessor and its agents, volunteers, servants, employees and officials from and against any and all claims, losses, or expenses, including reasonable attorney's fees and litigation expenses suffered by any indemnified party or entity as the result of claims or suits due to, arising out of or in connection with (a) any and all such damages, real or alleged, (b) the violation of any law applicable to this Lease, and (c) the performance of the work by Lessee or those for whom Lessee is legally liable. Upon written demand by the Lessor, Lessee shall assume and defend at Lessee's sole expense any and all such suits or defense of claims made against the Lessor, its agents, volunteers, servants, employees or officials. 4 'I 'I I 11. City/Museum Services and Maintenance. (A) Subject to appropriation by City Council, Lessor shall, at Lessor's cost: (i) design and manage major maintenance projects as needed and as funding in the Heritage Buildings CIP will allow; (ii) provide payment for all utility costs and fees as pertain to electricity, heating, fuel, water, sewer and solid waste collection; (iii) approve in advance the acquisition or installation or any equipment it is expected to maintain; (iv) and, maintain the grounds via a 10-day cycle contract for mowing and trimming. (B) The Lessee shall be allowed to perform repairs, renovations and restorations upon the premises, provided that before the undertaking of any repairs, the work follows an established restoration plan developed by a historical architect approved by the City, has been approved by the City's Historic Resources Coordinator, Building Maintenance Administrator and, when required by City Ordinance, the Historical Review Board. Criteria for approval shall include ensuring that the planned repairs, etc., meets the Secretary of Interior's Standards for Rehabilitation as listed in Attachment A. No changes or additions to the structure of the Building or its mechanical systems may be made without the approval of the Lessor as noted above. Application to perform repairs or make changes shall be made in writing via certified or registered mail to the office noted in Section 4 above. Lessee shall maintain the premises in a neat and orderly condition. Upon the termination of this Lease, the Lessee shall deliver the Building to the Lessor in "broom clean" condition, excepting ordinary wear and tear or loss or damages caused by fire or other casualty. The Lessee shall pay for telecommunications fees and services and other utilities not listed in subsection (A)(ii) of this section, and 5 II 111 II shall develop written security procedures to reasonably protect the Building, against damage, such procedures subject to approval by the Lessor. (C) When Lessee requests approval for a repaIr, renovation or restoration, or approval of a change or addition to the structural or mechanical systems as required by Paragraph II(B), Lessor shall consider and, if appropriate, grant such approvals in a reasonable period of time. Lessor's decision to grant or a deny an approval shall not be unreasonably delayed or withheld. In the event the Lessee requests an approval deemed necessary to cure a safety hazard or prevent a reasonably foreseeable safety hazard, Lessor shall consider such request for approval in an expedited manner. 12. Access. Lessor or Lessor's agents, employees and designees shall have the right to enter the Leased Premises, upon reasonable prior notice, to examine and inspect the Leased Premises and to determine compliance with the terms of this Lease, and for any other purpose necessary to facilitate Lessor's proposed use of the Leased Premises upon termination of this Lease. Entry by Lessor as set forth in this Paragraph shall be during the hours between _ ~ o'clock a.m. and ten (10) o'clock a.m. and between the hours of two (2) and four (4) o'clock p.m., or at a time mutually agreed upon by Lessor and Lessee so as to minimize disruption to Lessee's business. 13. Fire and Casualty. Except as otherwise provided herein, in the event the Building or improvements on the Leased Premises or any part thereof are damaged or destroyed by fire or other casualty, Lessor may elect to terminate this Lease effective as of the date of the casualty. The Lessor is not obligated to rebuild the Leased Premises in the event of damage or destruction by fire or casualty. 6 II 111 I 14. Assignment and Sub-Lease. Lessee shall not sublet or assign this Lease without first obtaining the written consent of Lessor, which consent may be withheld in the sole discretion of the Lessor. Any sublease or assignment must obligate the subleasee or assignee to all of the terms and conditions of this lease. 15. Surrender. Upon the expiration or earlier termination of this Lease, the Lessee shall have the right to remove its personal property, furniture, fixtures, equipment and signs, ("Personal Property"). However, Lessee agrees to be responsible for the repair of any and all damages to the Leased Premises caused by such removal. Any Personal Property belonging to the Lessee not removed within twenty (20) days following the expiration of termination of this Lease shall be deemed to be abandoned, and may be removed and disposed of by Lessor without incurring any liability to Lessee. 16. Severability. Any term of this Lease which is prohibited by or is unlawful or unenforceable under Virginia law shall be ineffective only to the extent of such prohibition, without invalidating the remaining terms of this Lease. 17. Required Approvals. All approvals required within the wording of this Lease must be obtained in writing prior to implementation or acquisition. The contact for the Lessor for this Lease is the Director, Department of Museums, unless otherwise stated. 18. Nondiscrimination. Employment discrimination by Lessee shall be prohibited. During the performance of this Lease, Lessee agrees as follows: 1. Lessee will not discriminate against any employee or applicant for employment because of race, religion, color, sex, national origin, age, disability, or any other basis prohibited by state law relating to discrimination in employment, except 7 II III where there is a bona fide occupational qualification/consideration reasonably necessary to the normal operation of Lessee. Lessee agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause. 2. Lessee, in all solicitations or advertisements for employees placed by or on behalf of Lessee, will state that Lesee is an equal opportunity employer. 3. Notices, advertisements and solicitations placed in accordance with federal law, rule or regulations shall be deemed sufficient for the purpose of meeting the requirements of this section. 4. Lessee will include the provisions of the foregoing Sections 1,2, and 3 in every subcontract or purchase order of over $10,000, so that the provisions will be binding upon each subcontractor or vendor. 19. Environmental Concerns. Lessor hereby warrants to the Lessee, that to the best of the Lessor's knowledge, without the requirement for independent investigation, no hazardous material such as petroleum products, asbestos and any other hazardous or toxic substance has been used, disposed of, or is located in either the building located on the Leased Premises or that soil or groundwater on or under the Leased Premises. Any costs associated with violations of the law including, but not limited to, remediation, clean up costs, fines, administrative or civil penalties or charges and third party claims imposed on the Lessor by any regulatory agency or by any third party as a result of the noncompliance with Federal, State or local environmental laws and regulation or nuisance statutes by the Museum or by its employees, contractors, 8 II "I consultants, subconsultants, or any other persons, corporations or legal entities retained by it for the Leased Premises, shall be paid by the Lessee. 20. Covenant Against Liens. If, because of any act or omission of Lessee, or others claiming by or through the Lessee, any mechanic's or materialman's liens shall be tiled against the Lessor or any portion of the Leased Premises, Lessee shall, at its own cost and expense, cause the same to be paid, discharged of record or bonded off within thirty (30) days after written notice from Lessor of the filing thereof. The provisions of this paragraph shall survive expiration or termination of this Lease. 21. Submission and Disposition of Contractual Claims. Prompt knowledge by the Lessor of an existing or impending claim for damages or other relief may alter the plans, scheduling, or other action of the Lessor and/or result in mitigation or elimination of the effects of the claim. Therefore, a written statement providing the Lessor with notice of Lessee's intention to file a claim which 0) describes the act or omission by the Lessor or its agents that the Lessee contends caused it damages or entitles it to other relief; and (ii) provides a description of the nature and amount of the claim. Such written statement shall be submitted to the Lessor within 20 days of the time of the occurrence or beginning of the work upon which the claim is based; provided, however, if such damage is deemed certain in the opinion of the Lessee to result from its acting on an order from the Lessor, it shall immediately take written exception to the order. For purposes of this provision, "claim" shall include, without limitation, any request for an increase in the contract price or time and any request for equitable adjustment. Submission of a notice of claim as specified shall be mandatory, and failure to submit such notice shall be a conclusive waiver to such claim for damages or other relief by the Lessee. Neither an orall 9 'I "I II notice or statement, nor an untimely notice or statement will be sufficient to satisfy the requirements herein. The Lessor will review the claim and render a final decision in writing within thirty (30) days of receipt of Lessee's written request for a final decision. Such decision shall be final and binding to the fullest extent allowed by law. 22. Compliance With All Laws/Governing Law/Venue. A. Compliance with All Laws. Lessee shall comply with all federal, state and local statutes, ordinances, and regulations now in effect or hereafter adopted, in the performance of scope of work set forth herein. Lessee represents that it possesses all necessary licenses and permits required to conduct its business and will acquire any additional licenses and permits necessary for performance of this Lease prior to the initiation of work. B. Lease interpreted under laws of Virginia. This Lease shall be deemed to be a Virginia lease and shall be governed as to all matters whether of validity, interpretations, obligations, performance or otherwise exclusively by the laws of the Commonwealth of Virginia, and all questions arising with respect thereto shall be determined in accordance with such laws. Regardless of where actually delivered and accepted, this Lease shall be deemed to have been delivered and accepted by the parties in the Commonwealth of Virginia. C. Venue. Any and all suits for any claims or for any and every breach or dispute arising out of this Lease shall be maintained in the appropriate court of competent jurisdiction in the City of Virginia Beach. 10 "I D. The building has been entered in the National Register of Historic Places SInce 1979. Lessee shall comply with all requirements for maintaining the Building's status as a National Historic Site. 23. Drug Free Workplace. During the performance of this Lease, Lessee agrees as follows: 1. Lessee will provide a drug-free workplace for Lessee's employees. 2. Lessee will post in conspicuous places, available to employees and applicants for employment, a statement notifying employees that the unlawful manufacture, sale, distribution, dispensation, possession, or use of a controlled substance or marijuana is prohibited in Lessee's workplace and specifying the actions that will be taken against employees for violations of such prohibition. 3. Lessee will state in all solicitations or advertisements for employees placed by or on behalf of Lessee that Lessee maintains a drug-free workplace. 4. Lessee will include the provisions of the foregoing Sections 1,2, and 3 in every subcontract or purchase order of over $10,000, so that the provisions will be binding upon each subcontractor or vendor. 24. Compliance with Immigration Laws. Lessee does not currently, and shall not during the performance of this Lease, knowingly employ an unauthorized alien, as defined in the federal Immigration Reform and Control Act of 1986. 25. Modification. There may be no modification of this Lease, except In writing, executed by the authorized representatives of the Lessor and Lessee. 26. Waiver. No waiver by Lessor or Lessee at any time, express or implied, of any breach of any term of this Lease shall be deemed a waiver of a breach of any other 11 , I term of this Lease or consent to any subsequent breach of same or ay other term. No acceptance by Lessor of any partial payment shall constitute an accord or satisfaction but shall only be deemed a part payment on account. Lessor may accept rent, or other sums payable or other benefits pursuant to this Lease, and acceptance of same shall not be deemed to be a waiver of any prior default. 27. Quiet Enioyment. So long as Lessee is not in default beyond any cure period hereunder, Lessee shall peaceably and quietly hold and enjoy the Leased Premises for the term hereby demised without hindrance or interruption by Lessor or any other person or persons claiming by, through or under Lessor. 28. Force Maieure. Neither Lessor nor Lessee shall be liable to the other for any breach or violation of this Lease resulting from any occurrence or event, including any act of God, strikes, war, lockouts, labor trouble, insurrection or occurrence beyond the reasonable control of any party hereto. 29. Entire Agreement/Successors and Assigns. This Lease constitutes the entire agreement between the parties and shall be binding upon the parties hereto and their successors and assigns. No oral statement or prior writing shall add to, vary or modify the terms of this Lease. 30. Paragraph Headings. Headings to the paragraph are illustrative only; they do not form a part of this Lease nor are they intended to be used construing same. As evidence of their agreement to the terms and conditions set forth herein, the parties affix their authorized signatures hereto: (THIS SPACE INTENTIONALLY LEFT BLANK) 12 "I IN WITNESS WHEREOF, the parties hereto have caused this Lease Agreement to be duly executed as of the day above first written. CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation of the Commonwealth of Virginia By: City Manager/Authorized Designee FRIENDS OF FERRY PLANTATION HOUSE, INC., a Virginia corporation By: Name: Title: STATE OF CITY/COUNTY OF , to-wit: The foregoing instrument was acknowledged before me this day of , 20_, by (Name of person acknowledged). He/She is personally known to me or has produced as proper identification. NOTARY PUBLIC My Commission Expires: My Registration Number: 13 1'1 II STATE OF CITY/COUNTY OF , to-wit: The foregoing instrument was acknowledged before me this day of , 20 , by (Name of person acknowledged). He/She is personally known to me or has produced as proper identification. Notary Public My Commission Expires: My Registration Number: Approved as to Content: Approved as to Risk Management: Department of Museums Risk Manager Approved as to Legal Sufficiency: Approved as to Content: Office of City Attorney Facilities Management Office 14 1 AN ORDINANCE AUTHORIZING AND DIRECTING THE 2 CITY MANAGER TO EXECUTE A POLICE MUTUAL AID 3 AGREEMENT WITH THE CITIES OF CHESAPEAKE, 4 FRANKLIN, HAMPTON, NEWPORT NEWS, NORFOLK, 5 POQUOSON, PORTSMOUTH, SUFFOLK, VIRGINIA 6 BEACH, WILLIAMSBURG, AND THE COUNTIES OF 7 JAMES CITY, ACCOMACK, GLOUCESTER, ISLE OF 8 WIGHT, NORTHAMPTON, YORK, AND THE TOWN OF 9 SMITHFIELD 10 11 WHEREAS, Virginia law authorized local governments to enter into reciprocal 12 agreements for mutual aid and for cooperation in the furnishing of police services; and 13 14 WHEREAS, it is deemed mutually beneficial to the Cities of Chesapeake, 15 Franklin, Hampton, Newport News, Norfolk, Poquoson, Portsmouth, Suffolk, Virginia 16 Beach, Williamsburg, and the Counties of James City, Accomack, Gloucester, Isle of 17 Wight, Northampton, York, and the Town of Smithfield to enter into an agreement 18 concerning mutual aid and cooperation with regard to law enforcement, increasing the 19 ability of the local governments to promote the safety and welfare of the entire area. 20 21 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 22 VIRGINIA BEACH, VIRGINIA: 23 24 That the accompanying Police Mutual Aid Agreement is approved and that the 25 City Manager be directed to execute said Agreement on behalf of the City of Virginia 26 Beach. Adopted by the council of the City of Virginia Beach, Virginia, on the 22nd day of September , 2009. APPROVED AS TO CONTENT: APPROVED AS TO CONTENT: ()~_ J: ~ ~k Management APPROVED AS TO LEGAL SUFFICIENCY: ~~~- CA 11285 R-1 September 10, 2009 SUMMARY OF TERMS 1. Event - an incident requmng a law enforcement response that exceeds the equipment and/or personnel resources of the member's Police Department. 2. Mutual Aid A2reement - An agreement between seventeen localities to provide emergency services in the event an incident occurs that requires resources beyond those of the requesting locality's law enforcement department. The Agreement also provides arrest authority for officers responding to the requesting jurisdiction's locality, and allows arrest authority for officers present in another's jurisdiction in the event of an immediate threat to public safety. 3. Nature - Outlines the procedures of the City of Virginia Beach to provide and receive law enforcement manpower and equipment, if available, in an effort to effectively respond to emergency incidents. 4. Term - This Agreement is effective upon execution, and may be terminated without cause upon thirty (30) days written notice by either party. This Agreement mirrors and will rescind the 2003 Agreement upon execution. 5. Insurance - Insurance requirement are met through the City of Virginia Beach's self-insurance program administered by Risk Management. II I I LA W ENFORCEMENT MUTUAL AID AGREEMENT THIS AGREEMENT, made this 1st day of June, 2009, by and among the Cities of CHESAPEAKE, FRANKLIN, HAMPTON, NEWPORT NEWS, NORFOLK, POQUOSON, PORTSMOUTH, SUFFOLK, VIRGINIA BEACH and WILLIAMSBURG, each a municipal corporation ofthe Commonwealth of Virginia; the County of JAMES CITY, a political subdivision of the Commonwealth of Virginia; the Sheriff of the County of ACCOMACK; the Sheriff of the County of GLOUCESTER; the Sheriff of the County of ISLE OF WIGHT; the Sheriff of the County of NORTHAMPTON; the Sheriff of the County of YORK; and the Town of SMITHFIELD. WHEREAS, Virginia law authorizes local governments and Sheriffs, in counties where no police department has been established, to enter into reciprocal agreements for mutual aid and for cooperation in the furnishing of law enforcement services; and WHEREAS, the twelve local governments and the Sheriffs of the Counties of Accomack, Gloucester, Isle of Wight, Northampton and York have determined that the provision of law enforcement aid across jurisdictional lines will increase their ability to preserve the safety and welfare of the entire area; and WHEREAS, it is deemed to be mutually beneficial to the parties hereto to enter into an agreement concerning mutual aid and cooperation with regard to law enforcement; and WHEREAS, the parties hereto desire that the terms and conditions of this Law Enforcement Mutual Aid Agreement be established. NOW, THEREFORE, in consideration of the mutual benefits to be derived from a Law Enforcement Mutual Aid agreement, the parties hereto covenant and agree as follows; 1 'I 'I any of the parties hereto to respond to a request for law enforcement support when the personnel of the party to whom the request is made are, in the opinion of the requested party, needed or are being used within the boundaries ofthat party, nor shall any request compel the requested party to continue to provide law enforcement support to another party when its personnel or equipment, in the opinion of the requested party, are needed for other duties within the boundaries of its own jurisdiction. 8. In those situations not involving the provision of mutual aid upon request, law enforcement officers and personnel, and other employees of any city, county, town or Sheriff hereunder, may also enter any other jurisdiction in furtherance of law enforcement purposes, concerning any offense in which the entering law enforcement agency may have a valid interest; provided, that the entering personnel shall, as soon as practical, make such presence known to the Chief of Police or Sheriff of the entered jurisdiction, or his designated representative. 9. The responsibility for investigation and subsequent actions concerning any criminal offense shall remain with the law enforcement agency of the locality whose court has original jurisdiction over the offense. Entering law enforcement personnel shall promptly notify the law enforcement agency of the entered locality upon discovery of a crime over which the court of the entered locality has original jurisdiction. 10. Officers acting pursuant to this Agreement shall be granted authority to enforce the laws of the Commonwealth of Virginia and to perform the other duties of a law enforcement officer; such authority shall be in conformance with S9 15.2-1724; 15.2- 3 'I "I 1. Each party will endeavor to provide law enforcement support to the other parties to this Agreement within the capabilities available at the time the request for such support is made and within the terms of this Agreement. 2. Requests for assistance pursuant to the terms and conditions of this Agreement shall be made by the requesting jurisdiction's Chief of Police or Sheriff, whichever is applicable, or their respective designee. 3. The requesting party shall be responsible for designating a radio communications system for use by the requested party. 4. The personnel of the requested party shall render such assistance under the direction of the Chief of Police or Sheriff of the requesting party, or their respective designee. 5. Law enforcement support provided pursuant to this Agreement shall include, but not be limited to, the following resources: uniformed officers, canine officers, aerial support when maintained, forensic support, plainclothes officers, special operations personnel and related equipment. All law enforcement officers and personnel shall be duly trained and currently certified for the position provided. 6. Subject to the terms ofthis Agreement, and without limiting in any way the other Circumstances or conditions in which mutual aid may be requested and provided under this Agreement, the parties hereto agree to provide assistance to the requesting party in situations requiring the mass processing of arrestees and transportation of arrestees. The parties to the Agreement further agree to assist the requesting party with security and operation of temporary detention facilities. 7. Nothing contained in this Agreement should in any manner be construed to compel 2 '1'1 1726; 15.2-1730; 15.2-1730.1 and 15.2-1736 ofthe Code of Virginia, as amended. Law enforcement officers of any party who might be casually present in any other jurisdiction shall have power to apprehend and make arrests only in such instances wherein an apparent, immediate threat to public safety precludes the option of deferring action to the local law enforcement agency. 11. All law enforcement officers, agents and other employees of the parties to this Agreement who are acting pursuant to this Agreement shall have the same powers, rights, benefits, privileges and immunities in each other's jurisdiction, including the authority to make arrests in each other's jurisdiction. 12. The services performed and expenditures made under this Agreement shall be deemed to be for public and governmental purposes and all immunities from liability enjoyed by the parties within their boundaries shall extend to their participation in rendering assistance outside their boundaries pursuant to this Agreement. It is understood that for the purposes of this Agreement, the responding party is rendering aid once it has entered the jurisdictional boundaries of the party requesting assistance. 13. All pension, relief, disability, worker's compensation, life and health insurance and other benefits enjoyed by said law enforcement officers or personnel as employees of their respective jurisdictions shall extend to the services they perform under this Agreement outside their respective jurisdictions. Each party agrees that the provision of these benefits shall remain the responsibility of the employing party. 14. Each party agrees that, in activities involving the rendering of assistance to another party pursuant to this Agreement, each party shall waive any and all claims against 4 all other parties hereto which may arise out of their activities outside their respective jurisdiction. 15. The parties shall not be liable to each other for reimbursement for injuries to law enforcement officers or personnel, or damage to equipment incurred when going to or returning from another jurisdiction, except to the extent that reimbursement for such expenses may be or is received from the Federal Emergency Management Agency (FEMA) or another governmental agency. Neither shall the parties be liable to each other any other costs associated with, or arising out of, the rendering of assistant pursuant to this Agreement, except to the extent that reimbursement for such expenses may be or is received from FEMA or another governmental agency. 16. This Agreement rescinds and supersedes all previous written agreements and oral understandings relating to the provision of mutual law enforcement services between the parties. 17. Any of the parties hereto may withdraw from this Agreement by giving thirty (30) days written notice to that effect to the other parties. 5 II 1'1 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective city manager, county administrator, town manager or Sheriff; the official seal of each city, county and town affixed hereto and attested by their respective city, county or town clerk, and indicating thereafter the ordinance or resolution authorizing the execution. Sheriffs may attest by Notary Public. CITY OF VIRGINIA BEACH BY: City Manager ATTEST: City Clerk Resolution/Ordinance #: Adopted On: 6 1,1 ,'I 1 AN ORDINANCE GRANTING A FRANCHISE FOR A PILOT 2 PROGRAM TO ALLOW AN ICE SKATING RINK AT THE 3 31sT STREET PARK 4 5 WHEREAS, in an effort to attract year~round activity to the Oceanfront, the Hilton 6 Hotel partnered with Ice Masters, Inc., Va Rink Specialist (''Rink Specialists"), to offer a 7 temporary ice skating rink in the 31 st Street Park ("Park"); 8 9 WHEREAS, Rink Specialists has provided ice skating rink services for eight 10 years at eleven different locations throughout Virginia; 11 12 WHEREAS, Rink Specialists will provide all necessary equipment, materials, and 13 labor to install and operate the ice skating rink on a daily basis from November 25, 2009 14 through February 15, 2010; 15 16 WHEREAS, the proposed ice skating rink will be approximately sixty (60) feet by 17 one hundred twenty-five (125) feet, and will be completely enclosed in a clear tent; 18 19 WHEREAS, the ice skating rink will operate as a pilot program to allow the 20 Strategic Growth Area Office ("SGAO") to evaluate whether the ice rink operation will be 21 successful at attracting off-season visitors; 22 23 WHEREAS, under the terms of the proposed franchise agreement, Rink 24 Specialists will pay the City a franchise fee of three thousand dollars ($3,000) and will 25 provide financial reports to the City; 26 27 WHEREAS, Rink Specialists will pay the City for all utilities in excess of the City's 28 average monthly utility costs for the Park; 29 30 WHEREAS, once the ice skating rink is closed, Rink Specialist will be 31 responsible for returning the Park to its original condition prior to operation of the ice 32 skating rink; 33 34 WHEREAS, the SGAO recommends that Ice Masters, Inc., Va Rink Specialists, 35 be granted a franchise for a pilot program to allow an ice skating rink for the term of 36 November 9, 2009 through February 22, 2010. 37 38 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 39 VIRGINIA BEACH, VIRGINIA: 40 41 That the City Council hereby grants a franchise to Ice Masters, Inc., Va Rink 42 Specialists, for a pilot program to allow an ice skating rink at the 31st Street Park for the 43 period of November 9, 2009 through February 22, 2010, and authorizes the City 44 Manager or his designee to execute a franchise agreement with Ice Masters, Inc., Va 45 Rink Specialists, for said purpose. 'I "I Adopted by the Council of the City of Virginia Beach, Virginia on the 22nd day of September , 2009. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: /k:K ~ -;Z~ ~ City Attorney's Office Strategic Growth Area Office CA110278 R-3 September 10,2009 "I FRANCHISE AGREEMENT FOR AN ICE RINK OPERATION IN THE 31 ST STREET PARK THIS AGREEMENT, made the day of , 2009, by and between the CITY OF VIRGINIA BEACH, a municipal corporation, organized and existing under the laws of the Commonwealth of Virginia, hereinafter referred to as "City," and ICE MASTERS, INe., t/a Rink Specialists, a Virginia corporation, hereinafter referred to as "Grantee," is entered into pursuant to those powers vested in the City by Section 15.2-1102 of the Code of Virginia and all acts amendatory thereof, and embodied in the Charter of the City of Virginia Beach WITNESETH: WHEREAS, Grantee has applied to the City for a franchise to conduct an ice rink operation on public property at the 31 st Street Park, and to that end has represented that it will comply with all applicable provisions of federal, state, and municipal law and all pertinent rules and regulations of any board, committee, agency, or commission thereof; and WHEREAS, the City finds that such an operation would promote the public interest and would serve to enhance the festive atmosphere at the oceanfront. NOW, THEREFORE, for and in consideration of the mutual promises and covenants herein set forth, it is agreed as follows: 1. Conditions of Grant of Franchise a. It is expressly agreed and understood by Grantee that the grant of the franchise described herein below is conditional, the grant of such franchise being conditioned upon , I Grantee's obtaining any other required permits and/or licenses, and being further conditioned upon Grantee's compliance with all of the terms and conditions of this Agreement. It is expressly agreed and understood by Grantee that the failure of Grantee to obtain anyone or more of the required approvals, licenses, or permits shall render this Agreement null, void, and of no force and effect. b. The grant of the franchise to Grantee shall also be subject, in addition to the foregoing conditions, to such conditions as the City may, in its discretion, impose upon Grantee. 2. Grant of Franchise a. Subject to the provisions of paragraph 1 of this Agreement, or any other condition imposed by this Agreement or by law, the City does hereby grant unto Grantee a franchise to conduct an ice rink operation at the 3l5t Street Oceanfront Park ("Premises") in the City of Virginia Beach, Virginia ("Franchise"). The term of the Franchise shall be from and including November 9,2009, to and including February 22,2010 ("Term"). b. This Agreement shall not be renegotiated or continued unless a franchise is granted by the City Council of the City of Virginia Beach pursuant to Section 15.2-2100 of the Code of Virginia of 1950, as amended. c. The actual days and hours of operation during the term of the Franchise shall be approved by the City. The City reserves the right to suspend or modify the dates and hours of operation in the event the Premises (i) is scheduled for use by a permitted special event; or (ii) if the City Manager or his authorized designee determines that the weather , I conditions are of an intensity and duration that render the operation of the ice rink: a danger to the health, safety and welfare of the public. 3. Franchise Fee a. Grantee shall pay to the City for use of the Premises a fee, hereinafter the "Franchise Fee," in the amount of three thousand dollars ($3,000) for the Term of the Agreement. Said fee shall be paid in full at the signing of the Agreement. b. The failure of Grantee, for any reason, to pay the Franchise Fee shall constitute grounds for the immediate cancellation of this Franchise and forfeiture of any rights conferred upon Grantee by this Agreement. The City may, but shall not be required to, extend the period of time within which a payment shall be tendered or may, in lieu of any other remedy, treat this Agreement as remaining in full force and effect and avail itself of any and all lawful means of collecting such Franchise Fee. c. In the event of the cancellation of this Agreement or the termination of the Franchise granted hereunder prior to the expiration of its stated term, for any reason, no portion of any monies paid by or on behalf of Grantee on account of Franchise Fees shall be refundable. 4. Nonexclusive Franchise It is expressly understood and agreed by Grantee that the Franchise is not exclusive. The City hereby reserves unto itself the right to grant similar franchises to any person, firm, corporation, or other entity at any time and from time to time. 'I "I 5. Compliance with Law Grantee shall comply with all federal, state and local statutes, ordinances, and regulations now in effect or hereafter adopted, in the conduct of the ice rink operation. 6. Design Grantee shall submit to the Strategic Growth Area Office ("SGAO") a final design plan ("Design Plan") by September 25, 2009. SGAO shall review the Design Plan, and if acceptable to SGAO, provide written notice to Grantee of SGAO's approval of the Design Plan. 7. Construction After Grantee receives SGAO approval of the Design Plan, Grantee shall obtain all permits necessary to construct the ice rink from the City's Planning Department. Grantee shall not commence construction until Grantee obtains all required permits from the City's Planning Department, and shall not commence work onsite until the Franchise Term begins. Construction of the ice rink shall proceed strictly in accordance with the Design Plan approved by SGAO, and in good and workman-like fashion. Any proposed modification to the Design Plan shall be submitted to SGAO and to DSC for review and approval. 8. Operational Criteria a. Prior to the commencement of the Term, Grantee shall submit to the SGAO a written initial business plan, and shall include anticipated revenues and expenses. b. Grantee shall employ a professional staff to manage and operate the ice rink. An ice rink operator shall be present at all times during the operating hours of the ice rink. 'I "I c. Grantee shall provide each of its employees with attire which appropriately identifies the ice rink operation. Such attire shall be approved by the City. The approved attire shall be worn by on-duty employees during all hours of operation. Failure of an employee to be properly attired shall result in the operation being discontinued until the proper attire is obtained. All outer wear shall have at least a name tag with the Grantee's official logo or company name. d. Grantee shall maintain the Premises in good working order, and shall ensure that the Premises are aesthetically pleasing. The City shall determine if the appearance of the Premises is aesthetically pleasing. e. No more than six (6) vendors shall be permitted on the Premises during the Term. Grantee shall not permit alcohol to be served on the Premises. Grantee shall ensure that all vendors shall be removed from the Premises at the end of each night during the Term of the Agreement. Grantee shall ensure that all vendors have all necessary permits and business licenses. f. Grantee shall provide appropriate music for the ice rink, and said music shall terminate no later than ten (10) pm each day of operation during the Term ofthe Agreement. g. Grantee shall not sell, solicit, offer, distribute, or provide any information on the Premises, written or oral, regarding any operation or service in connection to time shares, vacation packages, lodging accommodations, hotels, motels, inns, campgrounds, restaurants, retail stores and entertainment establishments. 'I 'I h. Any special admission or rental discounts, promotions, or group packaging options offered by the Grantee shall be extended by the Grantee at the same rates to any and all hotels and restaurants in the Resort Area that wish to participate. 1. Grantee may display sponsorship and promotional banners inside the ice rink. No banners are permitted on the stage, the grassy areas in the Premises, bike racks, fencing, or anywhere outside the Premises. J. The City provides or pays for four utilities on the Premises: Hampton Roads Sanitation District services, sewer services, water, and electricity. Attached hereto as Exhibit A, and incorporated herein by reference, is a table representing the average utility consumption by the City on the Premises for the months of November through March. The table includes the average units of measurement per utility per month, and establishes baseline measurements to be used pursuant to this Agreement ("Baseline Measurements"). The City shall invoice Grantee on a monthly basis, beginning on or after December 15, 2009, for all utility consumption on the Premises that is in excess of the Baseline Measurements provided in Exhibit A. For example, in the month of November 2009, if the water consumption on the Premises is two hundred and fifty thousand (250,000) gallons, the City will invoice Grantee on December 15, 2009 for the cost of forty thousand (40,000) gallons (since the City's average water consumption for November is two hundred and ten thousand (210,000) gallons). Grantee shall pay to the City the amount of each utility invoice within fifteen (15) days of receipt of said invoice. k. Prior to the commencement of operation of the ice rink, Grantee shall provide 11 I I the City with Material Safety Data Sheets ("MSDS") for the ice coloring and refrigerant chemicals. The City shall review and, if appropriate, approve said MSDS. 1. Grantee may extend the hours of operation of the restrooms located on the Premises only by contracting directly with the City's custodial contractor, Shephard Enterprises, Inc. ("Shephard"), to procure custodial services for said restrooms. Grantee shall be responsible for paying Shephard any and all costs necessary to keep said restrooms open past six (6) pm daily. Grantee is prohibited from utilizing its employees, or any entity other than Shephard to manage the restrooms. m. The Grantee shall provide SGAO with a final profit and loss statement ("Statement") itemizing all revenues and expenses related to Franchise activity during the Term of the Agreement. The Statement shall be provided to SGAO no later than thirty (30) days after the expiration of the Term. The Statement shall include the following revenue categories: admissions, rentals, concessions, and sponsorships. Grantee shall keep a daily record of the number of skating participants during the term of the Franchise, and shall remit records to the City with the Statement. 9. Condition of Premises Grantee shall be responsible for repairing all damage to the Premises caused by its operation. a. Installation, operation, and removal of the ice rink shall not block or interfere with the City's access to the stormwater drain on the Premises. b. After rink disassembly, the Grantee shall be responsible for replacing the sod in accordance with the specifications set forth in Exhibit B, attached hereto and incorporated herein by reference. The Grantee shall pay all expenses for replacing the sod. The City Manager or his designee shall establish the date for sod installation. The Grantee shall present evidence and plans to the SGAO that a sod distributor and sod installer can meet the deadline established by the City no later than thirty (30) days after execution of this Franchise. The Grantee shall act as a single source and point of contact for all warranty claims. A sample sod warranty must be furnished to the City for approval no later than thirty (30) days after execution ofthis Franchise. c. After rink disassembly, the City shall inspect the operation of the Premise's irrigation system. The Grantee shall be responsible for repairs to broken pipes and sprinkler heads upon the specifications set forth by the City. d. After rink disassembly, any dislocated or broken paver located within the Premises shall be replaced by Grantee with identical material, or restored to its pre-existing condition. e. The Grantee shall remove the ice rink, all supporting sub-structures, temporary surfacing, tents, equipment, miscellaneous vending apparatuses, and all associated trash and debris resulting from the ice rink operation prior to the expiration of the Term of the Franchise. r. Any and all damages resulting from the Grantee's operation shall be immediately reported to the SGAO and repaired within a time period specified by the City. 10. Permitted Uses Grantee shall not use the Premises, nor suffer the Premises to be used, for any purpose other than as contemplated by this Agreement. 'I 11. Right of Inspection The City, by its authorized officers, agents, or employees, shall have the right to inspect the operation at any and all reasonable times, with or without notice, for the purpose of determining Grantee's compliance with the provisions of this Agreement. 12. Assignment of Franchise Grantee shall not, assign, delegate, or otherwise transfer, in whole or in part, the Franchise or any of Grantee's rights or obligations arising hereunder. In the event the City discovers Grantee made such an assignment, the Grantee will be found in breach of the terms of this Agreement and the Agreement will be immediately terminated. 13. Interest of Grantee Grantee shall acquire no interest in the Premises, legal or equitable, other than the right to occupy such Premises during the term of this Agreement for the sole purpose of conducting ice skating rink operations in compliance with, and subject to, the provisions of this Agreement and such rights in and to Grantee's personalty used in and about the operation of its operation as are conferred upon Grantee by law. 14. Relationship of Parties It is mutually understood and agreed by the parties that nothing contained in this Agreement is intended, or shall be construed, as in any manner creating or establishing any agency relationship between the parties or any relationship of joint enterprise or partnership. Grantee shall have no authority, express or implied, to act or hold itself out as the agent or representative of the City for any purpose. Grantee shall at all times remain an independent contractor, solely responsible for ail obligations and liabilities of, and for all loss and damage to, Grantee's operation, including the Premises and property thereupon, and for all claims and demands resulting from Grantee's operation. 15. Hold Harmless/Indemnification It is understood and agreed that Grantee hereby assumes the entire responsibility and liability for any and all damages to persons or property caused by or resulting from or arising out of any act or omission on the part of the Grantee, its subcontractors, agents or employees under or in connection with this Agreement or the performance or failure to perform any work required by this Agreement. Grantee agrees to indemnify and hold harmless the City and its agents, volunteers, servants, employees, and officials from and against any and all claims, losses, or expenses, including reasonable attorney's fees and litigation expenses suffered by any indemnified party or entity as the result of claims or suits due to, arising out of, or in connection with (a) any and all such damages, real or alleged, (b) the violation of any law applicable to this Agreement, and (c) the performance of any activities on the premises by Grantee or those for whom Grantee is legally liable. Upon written demand by the City, Grantee shall assume and defend at Grantee's sole expense any and all such suits or defense of claims made against the City, its agents, volunteers, servants, employees, or officials. 16. Insurance a. Grantee shall, prior to the commencement of its operation, procure and shall thereafter maintain in full force and effect during the entire term of this Agreement, a policy or policies of insurance protecting and insuring Grantee and the City, and their agents, employees, and officials against any loss, liability, or expense whatsoever, from personal 'I "I injury, death, or property damage arising out of or occurring in connection with Grantee's occupancy of the Premises or conduct of its operation, whether such injury, death, or damage occurs or is sustained, or the cause thereof arises, on or off the Premises. The City shall be named as insured under any and all such policies. Such policy or policies shall be written by a responsible insurance company or companies licensed to conduct the business of insurance in the Commonwealth of Virginia and acceptable by the City. Such policy or policies shall be in a comprehensive general liability form, including products liability coverage, and shall be in an amount not less than $1,000,000.00 combined single limits. The risks covered by any such policy or policies of insurance shall not be limited nor the amount of coverage thereunder reduced by reason of any insurance that may be maintained by the City. b. Prior to the commencement of its operation and without demand by the City, Grantee shall furnish to the SGAO a certificate(s) of insurance showing Grantee's compliance with the foregoing requirements. Any such certificate(s) shall state that the policy or policies of insurance named therein will not be cancelled or altered without giving at least thirty (30) days prior written notice to the City. c. Grantee's performance of its obligations under the provisions of this paragraph shall not relieve Grantee of liability under the indemnity and hold harmless provisions of the preceding section of this Agreement. 17. Bond Upon execution of this Franchise, the Grantee shall provide to the City a performance bond in the amount of thirty thousand dollars ($30,000) for the cost of sod replacement, 'I "I unpaid utility bills, paver repositions, or any other repairs that the City deems necessary on the Premises. The bond will be released by the City after all required financial reports are received by the City, and the City approves the condition of the sod, pavers, and other supporting infrastructure on the Premises. 18. Abandonment In the event Grantee shall abandon its operation, the City shall have the right to immediately cancel this Agreement and terminate the Franchise. 19. Termination of Franchise a. The City shall have the right to cancel this Agreement and terminate the Franchise on notice to Grantee upon the occurrence of any of the following events: (1) The failure of Grantee to secure any approval, license, or permit required by this Agreement or by law, or the cancellation or revocation of any such license or permit. (2) The failure of Grantee to fulfill, abide by, or comply with any condition of the grant of the Franchise. (3) The failure of Grantee to pay the Franchise Fee required hereunder. (4) The failure of Grantee to comply with any statute, ordinance, regulation, or other law applicable to the ownership or management of its operation or to the occupancy and use of the Premises. (5) The use of the Premises by, on behalf of, or at the sufferance of Grantee for any activity or purpose other than is expressly permitted by this Agreement. , I (6) The failure of Grantee to procure any policy or policies of insurance, or the bond, required by this Agreement to have been procured prior to the commencement of Grantee's operation, the cancellation or lapse of any such policy or policies so as to cause the aggregate of the limits of liability of coverage thereunder to be less than the amounts required by paragraph 16 of this Agreement, or any material and adverse change in the risks covered or persons or entities insured thereunder. (7) The purported assignment, delegation, or other transfer by Grantee of the Franchise, in whole or in part, or of any of the rights or obligations of Grantee set forth herein. (8) The refusal of Grantee to permit inspection of the operation by the City as set forth in this Agreement. (9) The death of Grantee, if Grantee is the sole proprietor, or in any other case, the termination of Grantee's existence as a business organization, whether by dissolution, consolidation, merger, sale, or other like act, or the revocation of Grantee's authority to transact business in the Commonwealth of Virginia. b. The election by the City to exercise its right to cancel this Agreement and to terminate the Franchise shall be without prejudice to any of its other rights at law or in equity, and any remedy set forth in this Agreement shall not be exclusive but shall be cumulative upon any or all other remedies herein provided or by law allowed. Upon termination of this Agreement and the Franchise, Grantee shall immediately cease all operations upon the Premises. 'I c. Notwithstanding any other remedy conferred upon the City by this Agreement or by law, the City may elect to suspend Grantee's operation upon the occurrence of any of the events herein above enumerated or in the event of the breach by Grantee of any other provision or condition of this Agreement. Grantee shall, upon receipt of notice of such suspension, immediately cease its operation until such time as the City shall permit Grantee to continue its operation. Such permission shall be granted by the City at such time as Grantee shall have remedied the breach or breaches of this Agreement giving rise to such suspensIOn. 20. Publicity The City shall have the right to photograph Grantee's operation and to use any such photographs in any of its publicity or advertising. Grantee shall not be entitled to compensation by reason of the taking or use of any such photographs. 21. Notice All notices required or permitted hereunder shall be given and shall be deemed given if, in writing, mailed by certified or registered mail, and addressed to Grantee at the address of Grantee stated in its proposal or to the Resort Administrator or designee, 2101 Parks Avenue, Suite 502, Virginia Beach, Virginia 23451, or to such other address as either party may direct by notice given as herein above provided. 22. Severability The provisions of this Agreement shall be deemed to be severable, and should any one or more of such provisions be declared or adjudged to be invalid or unenforceable, the remaining provisions shall be unaffected thereby and shall remain in full force and effect. 1'1 !II 23. Descriptive Headings The descriptive headings appearing in this Agreement are for convenience only and shall not be construed either as a part of the terms, covenants, and conditions hereof or as an interpretation of such terms, covenants, and conditions. 24. Entirety of Agreement This Agreement and any Exhibits constitute the final, complete and exclusive written expression of the intentions of the parties, and shall supercede all previous communications, representations, agreements, promises or statements, whether oral or written, by any party or between the parties. 25. Waiver No failure of the City to exercise any right or power given to it by law or by this Agreement, or to insist upon strict compliance by Grantee with any of the provisions of this Agreement, and no custom or practice of the parties at variance with the terms hereof, shall constitute a waiver of the City's right to demand strict compliance with the terms of this Agreement. 26. Modification No modification, revision, or deletion of any of the provisions of this Agreement, and no addition of any provisions hereto, shall be valid unless in writing and executed with the same formalities as this Agreement. 27. Governing LawNenue This Agreement and the Franchise issued thereunder shall be governed and construed by the laws of the Commonwealth of Virginia and the parties hereto designate the II III appropriate courts of competent jurisdiction of the City of Virginia Beach, Virginia or the U.S. District Court for the Eastern District of Virginia, Norfolk Division, for purposes of litigation and venue. 28. Compliance with Immigration Laws Grantee does not currently, and shall not during the performance of this Agreement, knowingly employ an unauthorized alien, as defined in the federal Immigration Reform and Control Act of 1986. 29. Environmental Liability Any costs or expenses associated with environmentally related violations of the law, the creation or maintenance of a nuisance, or releases of hazardous substances, including, but not limited to, the costs of any clean up activities, removals, remediations, responses, damages, fines, administrative or civil penalties or charges imposed upon the City, whether because of actions or suits by any governmental or regulatory agency or by any private party, as a result of the storage, accumulation, or release of any hazardous substances, or any noncompliance with or failure to meet any federal, state, or local standards, requirements, laws, statutes, regulations or the law of nuisance by Grantee (or by its agents, officers, employees, subcontractors, consultants, subconsultants, or any other persons, corporations, or legal entities employed, utilized, or retained by Grantee) in the performance of this Agreement or related activities, shall be paid for by Grantee. This paragraph shall survive the termination, cancellation, or expiration of this Agreement. II ,II IN WITNESS WHEREOF, the following signatures and seals: CITY OF VIRGINIA BEACH, a municipal corporation By City Manager/ Authorized Designee ATTEST: City Clerk STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: I, , a Notary Public in and for the City and State aforesaid, do hereby certify that , City Manager/Authorized Designee for the CITY OF VIRGINIA BEACH, whose name as such is signed to the foregoing Franchise Agreement, has acknowledged the same before me in my City and State aforesaid. He is personally known to me. GIVEN under my hand this day of ,2009. Notary Public My Commission Expires: STATE OF VIRGINIA, CITY OF VIRGINIA BEACH, to-wit: I, , a Notary Public in and for the City and State aforesaid, do hereby certify that RUTH HODGES FRASER, City Clerk, for the CITY OF VIRGINIA BEACH, whose name as such is signed to the foregoing Franchise Agreement, has acknowledged the same before me in my City and State aforesaid. She is personally known to me. GIVEN under my hand this _ day of ,2009. Notary Public My Commission Expires: STATE OF VIRGINIA, CITY OF VIRGINIA BEACH, to-wit: 'I "I ICE MASTERS, INC. tla RINK SPECIALISTS By Its I, , a Notary Public in and for the City and State aforesaid, do hereby certify that GRANTEE, , of ICE MASTERS, INC. TIA RINK SPECIALISTS, whose name as such is signed to the foregoing Franchise Agreement, has acknowledged the same before me in my City and State aforesaid. Helshe is personally known to me or has produced as identification. GIVEN under my hand this My Commission Expires: day of ,2009. Approved as to Content: ~~ Strategic Growth Area Office Approved as to Risk Management: Risk Manager Notary Public Approved as to Legal Sufficiency: City Attorney II "I EXHIBIT A Utility Consumption for the 31 st Street Park This table represents the average monthly utility consumption by the City for operating the 31st Street oceanfront park during the months of November through March. Type of Unit of November December January February March Utility Measurement Hampton Cubic Feet 141 0* 26 0* 46** Roads (per 100) Sanitation District Sewage Gallons 210 0* 38 0* 68** (per 1,000) Water Gallons 210 0* 38 0* 68** (per 1,000) Electric KiloWatts 3,640 4,960 4,680 5,920 6,000 *The City's Public Utilities Department and Hampton Roads Sanitation District bill for water and sewage on a bi-monthly basis. **Grantee's operation will end prior to the March billing cycles for utility services, however utility consumption incurred in February will be included on the March invoice sent by the City to Grantee. II "1 EXHIBIT B SITE GRADING AND LAWN ESTABLISHMENT PART 1 - GENERAL 1.01 DESCRIPTION OF WORK A. Grantee shall provide all materials, equipment and labor necessary for placing topsoil/sand mix, fine grading and lawn establishment for 31 st Street Park Turf Renovation as shown on the drawings or inferable there from and/or as specified in accordance with the requirements of the Contract Documents. B. These specifications include standards necessary for and incidental to the execution and completion of lawn establishment, including addition of topsoil, fine grading, and establishment of lawn areas using seed or sod as indicated on the prepared drawings and specified herein. C. During construction, protect all turf, trees, shrubs, and other vegetation, site features and improvements, structures and utilities. Any damage to these features shall be the responsibility of the Grantee and shall be repaired or replaced at no cost to the City. Removal or destruction of existing turf or plantings is prohibited unless specifically authorized by the Strategic Growth Area Office ("SGAO"). 1.02 RELATED DOCUMENTS A. Virginia Work Area Protection Manual. Virginia Department of Transportation, Traffic Engineering Division, Work Zone Safety Coordinator, 1401 East Broad Street, Richmond, VA 23219. B. Professional Excavators' Manual. Miss Utility of Virginia, 204 Rivers Bend Boulevard, Chester, VA 23831. C. All standards publications shall be the latest editions, including any amendments, as of the date of advertisement for bids. 1.03 REQUIREMENTS OF REGULATORY AGENCIES A. Any certificates of inspection shall accompany the invoice for each shipment of sod when required by law for transportation. Provide copies of certificates of inspection with the SGAO prior to the acceptance of the material. Inspection by federal or state authorities at place of growth does not preclude rejection of the sod at the site. B. All work to be performed on City property will require the acquisition of a Right of Way Permitfrom the City of Virginia Beach, Planning/Civil Inspections. Fees for Right of Way Permits for work being done at the direction of the City of Virginia Beach shall be the responsibility of the Grantee. C. Work to be performed within a City street Right of Way will require the Grantee to obtain approval of a traffic control plan by City of Virginia Beach, Public WorkslTraffic Engineering before a Right of Way Permit can be obtained. Unless otherwise directed by Traffic Engineering, the traffic control plan should adhere to the most current edition of the Virginia Department of Transportation Work Zone Safety Guidelines. All required signage and/or traffic control devices shall be in place prior to commencement of work each day. Shortened workdays, which may be required as part of the traffic control plan, shall be strictly adhered to by the Grantee. A copy of the Right of Way permit SITE GRADING AND LAWN ESTABLISHMENT - 02920 II III shall be kept in each of the Grantee's vehicles on site while the work is being performed. All costs of traffic control, including equipment, signage and all added costs due to shortened workdays shall be the responsibility of the Grantee. D. Failure to comply with these regulatory requirements will result in placement of a Stop-Work Order until the Grantee corrects discrepancies. Any associated costs for a delay in construction caused by the Grantee's failure to comply with these regulatory requirements shall be the responsibility of the Grantee. 1.04 OBSTRUCTIONS TO WORK PERFORMANCE A. The Grantee shall contact Miss Utility of Virginia as required by the Virginia Underground Utility Damage Prevention Act before any digging is performed on the site. If underground or overhead utilities prevent grading or lawn establishment as specified and/or as shown on the plans, the SGAO or his designee should be contacted immediately. Any damage to utility lines during lawn establishment operations shall be the responsibility of the Grantee and shall be repaired at no additional cost to the City. B. The Grantee shall notify the Grantee Administrator, or his designee, immediately of any unforeseen conditions (buried debris, plan discrepancies, etc.) that may affect lawn establishment or growth. In addition, it shall be the responsibility of the Grantee to advise the SGAO immediately if he/she believes the existing soil on the site is unsuitable to maintain healthy turf grass. If the Grantee gives no notification, it shall be understood that the existing soil is acceptable. 1.05 SUBMITTALS A. Certificates of Inspection: Provide the SGAO with copies of any inspection certificates relating to the transportation of sod delivered to the site. B. For each type of sod or seed to be installed, submit seed vendor's certification for required grass seed mixture, indicating percentage by weight, and percentages of purity, germination and weed seed for each grass species. C. Submit fertilizer analysis for each type of fertilizer to be used for lawn establishment if fertilizer is required as specified in the soil test report. D. Soil Testing: At least ten days priorto beginning fine grading work, the Grantee shall provide the SGAO, or designee, a soil test report for the topsoil intended for use in completion of this work to determine whether it is in accordance with the plans and specifications. At the discretion of the SGAO, a soil test analysis report may be required for each individual stockpile of existing topsoil, or source of imported topsoil and/or planting mix. The soil testing laboratory shall be approved by the SGAO, and there shall be no cost to the City for any requested testing. Material or materials that are not in accordance with plans and specifications shall be replaced with approved material or materials at no additional cost to the City. If required, the soil test analysis report shall include the following information: 1. Provide a particle analysis based on the following sieve size chart or the following USDA gradient of mineral content: Sieve Size 1 inch mesh SITE GRADING AND LAWN ESTABLISHMENT - 02920 2 II III 1/4 inch mesh No. 100 mesh No. 200 mesh USDA DesiQnation Gravel Very Coarse Sand Coarse Sand Medium Sand Fine Sand Very Fine Sand Silt Clay Size in mm 2+mm 1-2 mm 0.5-1 mm 0.25-0.5 mm 0.1-0.25 mm 0.05-0.1 mm 0.002-0.05 mm Smaller than 0.002 mm 2. Provide a chemical analysis including the following: a. pH and buffer pH. b. Percentage of organic content by oven-dried weight. c. Nutrient levels in parts per million (ppm), including phosphorous, potassium, magnesium, iron, zinc, and calcium. Nutrient test shall include the testing laboratory's recommendations for supplemental additions to the soil based on the requirements of horticultural plants. d. Soluble salts by electrical conductivity of a 1:2 soil :water sample measured in mmhos/cm. 8. Cation exchange capacity (CEC). 1.06 SUBSTITUTIONS A. Substitutions of materials designated in the plans and specifications will be permitted only upon written approval by the SGAO or his designee. Substitutions shall be requested in writing by the Grantee within ten days after the award of contract. If the reason for substitution is lack of availability, the request shall include a list of suppliers contacted by the Grantee to locate the originally specified material. A sample of the material may also be required by the SGAO. The sample shall be provided by the Grantee at no cost to the City. B. All proposed sod or seed substitutions shall possess the same essential characteristics as the turf species originally specified in regard to appearance, ultimate height, habit or rate of growth, required soil conditions, climatic conditions and any other characteristics. In no case shall average wholesale cost of a substituted turf species or blend be less than the average wholesale cost of the turf species or blend originally specified. Species or blends of greater wholesale cost may be accepted without additional cost to the City. 1.07 CLEAN-UP OF SITE A. At the end of each day's work, the Grantee shall remove all work-related trash or other debris from the site. At all times rubbish and trash generated by the Grantee shall be kept clear of vehicular and pedestrian circulation throughout the site. Prior to final acceptance, all paved areas adjacent to planting areas shall be cleaned thoroughly by sweeping and/or washing. Any SITE GRADING AND LAWN ESTABLISHMENT - 02920 3 II "I defacement or stains on paving caused by lawn establishment operations shall be removed at no additional cost to the City. All construction equipment, excess materials, tools, rubbish or debris shall be removed from the site. All drains on the sites that have accumulated soil, mulch or any other material due to the lawn establishment operation shall be cleaned and approved by the SGAO, or his designee. 1.08 INSPECTION AND ACCEPTANCE A. Acceptance of Fine Grading: The SGAO, or his designee will inspect all fine grading work for acceptance upon written request by the Grantee. Written notice requesting such inspection shall be submitted by the Grantee at least ten days prior to the anticipated date of inspection. Fine grading shall be accepted by the SGAO or his designee before the Grantee begins sod or seeding operations. B. Initial Acceptance: The SGAO, or his designee will inspect all seeding and/or sod work for acceptance upon written request by the Grantee. Written notice requesting such inspection shall be submitted by the Grantee at least ten days prior to the anticipated date of inspection. After inspection, the Grantee will be notified in writing by the SGAO, or his designee, of the acceptance or rejection of any work not completed in accordance with the plans and specifications. Work found not to be in accordance with plans and specifications shall be subject to re-inspection after being corrected by the Grantee. C. Acceptance in Part: Work may be accepted in parts when the SGAO and the Grantee deem that practice to be in their mutual interest. Approval must be given in writing by the SGAO to the Grantee verifying that the work is to be completed in parts. Acceptance of the work in parts shall not waive any other provisions of this Contract. D. Final Acceptance: The SGAO, or his designee will inspect all seeding and/or sod work for acceptance at the end of a 14-day maintenance period. After inspection, the Grantee will be notified in writing by the SGAO, or his designee, of the acceptance or rejection of any work not completed in accordance with the plans and specifications. Work found not to be in accordance with plans and specifications shall be subject to re-inspection after being corrected by the Grantee. E. Basis for Final Acceptance: At the end of the Grantee's 14-day maintenance period, lawns shall be uniform in texture, density and color, substantially weed free, without gaps or bare spots, and with vigorous root growth of proper species and variety. For the purposes of establishing an acceptable standard, scattered bare spots, none of which are larger than one square foot, will be allowed up to a maximum of three percent of the entire fawn area. 1.09 WARRANTY A. General Warranty: The Grantee warrants to the City of Virginia Beach that all materials and equipment furnished under this Contract will be new unless otherwise specified, and that all work performed will be of good quality, free from faults and defects and in conformance with the plans and specifications. Except as otherwise specified, all work shall be warranted by the Grantee against defects resulting from the use of inferior materials, equipment, or workmanship for one year from the date of acceptance by the SGAO, or his designee. B. Lawn Establishment Warranty: At the end of the Grantee's maintenance period (see Section 1.08 D of these specifications), or at any time during the maintenance period, inspections will be made by the SGAO, or his designee, at his discretion. Bare areas, areas with weeds, areas with poor germination or dead sod, eroded areas, low spots or other deficiencies in the lawn SITE GRADING AND LAWN ESTABLISHMENT - 02920 4 II "I establishment that need to be corrected under this warranty will be reported to the Grantee in writing. C. Repair of Deficient Lawn Areas: Any deficiency in lawn establishment, as determined by the SGAO, or his designee, shall be corrected by the Grantee within ten (10) working days, weather conditions permitting at no additional cost to the City. All corrected grading and lawn areas shall be in compliance with the original plans and specifications. 1.10 MAINTENANCE A. Newly planted lawn areas may be watered by the Grantee using the existing sprinkler system at 31st Street Event Park until final acceptance by the City. B. In the absence of normal rainfall, watering shall be the responsibility of the Grantee during the warranty period. Watering shall be enough to provide the equivalent of 1" of precipitation per week. If requested, the Grantee is to provide a watering schedule to the SGAO. C. During the maintenance period, the Grantee shall re-seed or re-sod bare areas, fertilize and control weeds as necessary to ensure a uniform well-established lawn. PART 2 - MATERIALS 2.01 MATERIALS OTHER THAN SOD A. Imported Topsoil: The Grantee shall furnish, at his expense, sufficienttopsoil to properly perform all work as specified herein, and as shown on the drawings. Topsoil furnished shall be a natural, fertile, friable loam soil, possessing characteristics of representative of productive soils in the vicinity. It shall be obtained from naturally well-drained areas. It shall not contain toxic substances that may be harmful to plant growth. Topsoil shall be without admixture of subsoil and shall be cleaned and reasonably free from clay, lumps, stones, stumps, roots or similar substances two inches or more in diameter, debris, or other objects which might be a hindrance to planting operations. Topsoil shall contain at least six percent organic matter. The acidity range shall be between 5.5 and 7.0 inclusive. The mechanical analysis of the soil, which shall be based on either sieve size or USDA Particle Size Designation, shall be as follows: Sieve Size Percent Passina 1 inch mesh 99-100 percent 1/4 inch mesh 97-99 percent No. 100 mesh 40-60 percent No. 200 mesh 20-40 percent Particle Distribution of Imported Topsoil (USDA Desionation) Gravel Less than 10% Coarse to Medium Sand 30 to 65% Fine Sand 5 to 20% Very Fine Sand 0 to 20% Silt 15 to 25% Clay 15 to 25% A representative sample of topsoil and a soil test report shall be delivered to the SGAO, or designee, at least 10 days before work begins. Required soil amendments for lawn establishment, as indicated on the soil test report, shall be added by the Grantee at the time of SITE GRADING AND LAWN ESTABLISHMENT - 02920 5 II "I spreading/grading. B. Existing Topsoil: Topsoil may be stockpiled on the site to be used by the Grantee in performance of this contract. Any stockpiled topsoil shall meet or exceed all of the specifications for Imported Topsoil. A soil test report shall be provided to the SGAO by the Grantee for any stockpiled topsoil to be used. C. Starter Fertilizer: Initial fertilizer for seeding and sodding shall be a granular, non-burning turfgrass fertilizer with an N:P20S:K20 analysis ratio of 1 :2:1, or equivalent. Fertilizer shall be uniform in composition, free-flowing, and suitable for application with approved equipment. Fertilizer shall be delivered to the site in original, unopened containers, each bearing the manufacturer's guaranteed analysis label. At least 25% of available nitrogen shall be in a slow-release form. D. Maintenance Fertilizer: Fertilizer for all applications other than the initial fertilization shall be a granular, non-burning turfgrass fertilizer that with an N:P20S:K20 analysis ratio of 3:1:2 or 4:1 :2, or equivalent. Fertilizer shall be uniform in composition, free flowing, and suitable for application with mechanized rotary spreaders, drop spreaders, hydraulic seeders, or other equipment capable of uniformly distributing fertilizer over the soil surface. Fertilizer shall be delivered to the site in original, unopened containers, each bearing the manufacturer's guaranteed analysis label. At least 25% of available nitrogen shall be in a slow-release form. E. lime for Lawn Establishment: Shall be composed of finely ground calcitic or dolomitic limestone (calcium carbonate or calcium carbonate + magnesium carbonate), and shall contain a minimum of 50% total oxide equivalent (calcium oxide + magnesium oxide); neither hydrated or burnt lime shall be used for turfgrass seeding. limestone shall be uniform in composition, free flowing, and suitable for application with mechanized rotary spreaders, drop spreaders, hydraulic seeders, or other equipment capable of uniformly distributing limestone over the soil surface. F. Water: Shall be free from oil, acid, alkali, salt, and other substances harmful to plant growth. The Grantee shall make, at his expense, whatever arrangements may be necessary to ensure an adequate supply of water to meet the needs of this Contract. He shall also furnish all necessary hose equipment, attachments and accessories for the adequate irrigation of planted areas as may be required to complete the work as specified. G. Straw Mulch: Shall be specially grown for use as a seed mulch, and shall be entirely composed of the air-dried stems and leaves of wheat, barley, oats, or cereal rye. Straw mulch shall be cut and baled before its seed has matured, or shall be very thoroughly threshed. Straw mulch may be used as a seed mulch for rough turigrass areas, temporary seeding, or erosion control seeding. H. Wood Fiber Hydraulic Mulch: Wood fiber hydraulic mulch products shall consist of specially prepared wood that has been processed to a uniform fibrous state, and shall be packaged for sale as a hydraulic mulch for use with hydraulic seeding equipment. The wood fibers of wood fiber hydraulic mulch products shall have a length of approximately 0.5 inches (13 millimeters) and a diameter of approximately 0.0625 inches (1.5 millimeters). The wood fibers shall be dyed green, or the wood fiber hydraulic mulch product shall be mixed with a dye in a separate operation that will provide appropriate color to aid visual inspection of the material when it is spread. Wood fiber hydraulic mulch products shall have a pH range of pH 4.0-8.5, and an ash content which shall not exceed 7.0% ofthe product by weight. Wood fiber hydraulic mulch products shall be capable of remaining in suspension with water under agitation so that such products shall readily blend with seed, fertilizer, and limestone to form a uniform slurry. I. Wood Cellulose Fiber Hydraulic Mulch: Wood cellulose fiber hydraulic mulch products shall consist of specially prepared newspaper, newsprint, magazines, or other paper that has been processed to a SITE GRADING AND LAWN ESTABLISHMENT - 02920 6 III uniform fibrous state, and shall be packaged for sale as a hydraulic mulch for use with hydraulic seeding equipment. The wood cellulose fiber hydraulic mulch may be derived from recycled materials, or be newly manufactured. The wood cellulose fibers shall be dyed green, orthe wood cellulose fiber hydraulic mulch product shall be mixed with a dye in a separate operation that will provide appropriate color to aid visual inspection of the material when it is spread. Wood cellulose fiber hydraulic mulch products shall have a pH range of pH 4.0-8.5, and an ash content which shall not exceed 7.0% ofthe product by weight. Wood cellulose fiber hydraulic mulch products shall be capable of remaining in suspension (slurry) with water under agitation so that such products shall readily blend with seed, fertilizer, and limestone to form a uniform slurry. J. Mulch T ackifier: Shall be a non-asphaltic, biodegradable tackifier material suitable for application with approved equipment. Tackifier products shall be delivered to site in factory-labeled packages and stored and handled in strict compliance with manufacturer's instructions and recommendations. Tackifier products shall be applied according to the label directions of the manufacturer of the products. K. Steel Staples: Staples shall be either of 'u' or 'T' shape. 'u' shape staples shall be 11-gauge U- shaped wire, with width not less than 1.5 inches and length not less than 6.0 inches. 'T' shape staples shall be 8-gauge T-shaped wire, with main leg not less than 8.0 inches long and secondary leg not less than 1.0 inch long and head not Jess than 4.0 inches wide. L. Post-Emergent Weed Control: In newly established lawn areas, a post-emergence weed control chemical shall be used to control the growth of broad leaf weeds in strict accordance with labeled instructions. Grantee shall provide SGAO with label of chemical before applying. M. Seed: All grass seed mixtures and blends used for temporary or permanent lawn establishment shall have an official Certification label affixed to each container identifying the Certifying agency, the reference number, the variety name (if Certified as to variety), and the kind and class of seed. Where the complete labeling information is printed on the Certification tag, the percentage of other crops and other varieties will be shown as a total of the two and listed as other crops. Labels shall be attached to containers in a manner that prevents removal and reattachment without tampering being obvious. 2.02 SOD A. The species of sod required for lawn establishment is 'Tifsport' bermudagrass overseeded with 'T3'Transitional Ryegrass and shall be indicated on the plans and/or described in the cover letter accompanying these specifications. Sod shall be certified by the grower to be true to the specified species and cultivar. All sod will have an official certification label accompanying each load and the label must be attached to a dated invoice or labeling information. Sod shall be strongly rooted machine-cut sod of uniform density, color and texture. Sod shall be free of disease, weeds and undesirable native grasses and machine-cut to pad thickness of 3/4" to 1 ", excluding top growth and thatch. Sod used for this project shall be delivered and installed as rolls and shall be a minimum of 75 feet long and a minimum of 42" in width. B. Sod shall be harvested, delivered, and installed within a period of thirty-six (36) hours. Sod shall be inspected and approved or rejected by the SGAO, or designee, prior to its installation. PART 3 - EXECUTION 3.01 GENERAL A. Limits of T opsoiling and Lawn Establishment: Topsoil, whether stockpiled or imported to site, shall be placed to a depth of 4" within the entire limits of construction unless otherwise noted on plans. Areas SITE GRADING AND LAWN ESTABLISHMENT - 02920 7 II II to receive seeded lawn or sodded lawn shall be indicated on the plans and/or described in the cover letter accompanying these specifications. B. Time of Planting: Grading and lawn establishment operations shall be conducted under favorable weather conditions. These operations may, however, be conducted under unseasonable conditions at the option and on the full responsibility of the Grantee and with the approval of the SGAO, or his designee. If losses occur, there shall be no additional cost to the City. C. Protection of Lawn Areas: Before any construction begins, precautionary measures shall be taken to protect all existing lawn areas that are to be trucked over and upon which soil is to be temporarily stockpiled. Any existing lawn areas on or off the construction site that have been damaged by the Grantee shall be repaired to the satisfaction of the SGAO, or his designee, with no additional cost to the City. 3.02 ROUGH GRADING, TOPSOILlNG AND FINE GRADING A. Rough Grading (Sub-Grade Preparation) 1. Scarify or rip sub grade to depth of 4 inches where topsoil is scheduled. Scarify or rip soil in areas where equipment used for hauling and spreading topsoil has compacted subsoil (6 inch minimum depth is required). Any existing vegetation in the area of lawn establishment shall be sprayed with Roundup or other approved herbicide prior to disturbance of the area. Herbicides are to be applied by licensed applicators in strict accordance with labeled instructions. After appropriate time lapse they are to be sprayed again and dead organic matter removed from the site before grading operations are begun. 2. Eliminate uneven areas and low spots. Remove debris, roots, branches, and stones in excess of two inches in size. Remove any subsoil contaminated with petroleum products or other construction-related material. In the absence of a grading plan, the rough grade shall provide positive drainage to drain structures, curb lines, and adjoining paved areas. The rough grade shall be left 2-4" below drain structure rims, curb lines, and adjoining paved areas to allow placement of topsoil. B. Topsoiling and Fine Grading 1. Place and spread 4" of imported topsoil on entire site within the limits of work or as otherwise noted on plans. 2. Grade topsoil to eliminate rough or low areas. Remove all exposed stones, roots, grass, weeds, debris, and foreign material while spreading. Maintain levels, profiles, and contours of sub-grade. Manually spread topsoil around trees, plants, buildings and new work to prevent damage. In the absence of a grading plan, the finished grade shall provide positive drainage to drain structures, curb lines, and adjoining paved areas. 3. For conventional lawn seeding or sodding, in the absence of a site-specific soil test which indicates otherwise, apply lime at a rate of 50 Ibs. per 1000 sq. ft., and starter fertilizer at a rate which provides 1 lb. of total nitrogen per 1000 sq. ft. based on fertilizer analysis. Fertilizer and limestone applications shall be made with appropriately calibrated equipment in one or more separate operations. Limestone and fertilizer shall be worked into the top six inches of the soil before fine grading or seeding. Fertilizer may be applied up to 10 days before seeding. Limestone may be applied up to 30 days before seeding. 4. Lightly compact topsoil. Stones and other debris with a diameter over one inch shall be SITE GRADING AND LAWN ESTABLISHMENT - 02920 8 II "I removed from the surface of the topsoil. A raked, uniform fine grade shall be established so that no depressions or high spots greater than 1/2 inch are present and water drains to structures, ditches, swales and paved surfaces as intended on the site plan. Topsoil shall be hand-raked around trees, plants, buildings and new work to prevent damage. If lawn is to be established by sodding, an allowance for sod thickness shall be allowed adjacent to sidewalks, curbs and any other fixed final elevations. 3.03 CONVENTIONAL LAWN SEEDING A. Seed Application 1. Seed distributed by conventional seeding methods, or by culti-packer/seeder equipment, shall be uniformly spread in two directions at right angles to each other, using one half of the total seed to be distributed in each direction. If extreme slopes interfere with the safe or practical use of the seeding equipment, one or more passes in the same direction shall be an acceptable substitute. After the seed is distributed, the seed shall be incorporated into the soil to an average depth of 1/8 to 1/4 inch below the soil surface. Areas which receive seed by conventional seeding methods shall be rolled with a weighted roller after seeding, so that the seed is pressed firmly into the soil. B. Mulching 1. Straw and hay seed mulches shall be spread uniformly over the soil surface at a rate of 1.5 bales per 1000 sq. ft. The straw or hay mulch shall cover a minimum of 80% of the soil surface in a layer from 0.5 to 1.5 inches thick, with a maximum of 10% of the soil surface covered with straw or hay mulch over 2.5 inches in thickness. Liquid mulch binder and/or tackifier products shall be used to anchor straw or hay seed mulches when the liquid mulch binder and/or tackifier products are applied according to the manufacturer's label directions oraccording to application rates and methods that ensure that the straw or hay seed mulch is firmly held from erosion while still allowing the passage of emerging seedlings. 2. As an alternative straw or hay mulch, and on all slopes steeper than 4: 1, wood fiber or wood cellulose fiber plus a liquid tackifier product used as hydraulic mulch for turfgrass seeding shall be applied in accordance with the label directions of the manufacturer. A minimum of 80% of the soil surface shall be covered with hydraulic mulch, or as may be necessary to ensure that the wood fiber, wood cellulose fiber hydraulic mulch is securely held in place so that minimal amounts of seed and/or soil are permitted to erode from the seeding site, while still allowing the passage of emerging seedlings. 3.04 HYDRAULIC SEEDING (HYDRO-SEEDING) A. Hydraulic Seeding Suspension (Slurry) 1. Fertilizer and limestone may be applied as described in 3.02.8.2 of these specifications before hydro-seeding operation is begun. Alternatively limestone and fertilizer shall be mixed into hydraulic seeding suspension. In the absence of a site-specific soil test which indicates otherwise, apply lime at a rate of 50 Ibs. per 1000 sq. ft., and starter fertilizer at a rate which provides 11b. of total nitrogen per 1000 sq. ft. based on fertilizer analysis. When seed is included in the hydraulic seeding suspension, the amount offertilizer added to the hydraulic seeding suspension shall not exceed 2lbs. pounds of nitrogen per 1000 sq. ft. When limestone is applied with seed in the hydraulic seeding suspension, the amount of limestone included shall not exceed 50 Ibs per 1000 ft2 (2,200 Ibs. per acre). Pulverized limestone or pelletized limestone shall be the only limestone used for this application: SITE GRADING AND LAWN ESTABLISHMENT - 02920 9 II III neither granulated limestone, nor burnt lime, nor hydrated lime shall be used for hydraulic seeding. When fertilizer and/or limestone is included in the hydraulic seeding suspension with seed, the maximum combined weight of fertilizer and limestone included in the hydraulic seeding suspension shall not exceed 150 pounds per 100 gallons of water. 2. Hydraulic seeding equipment shall be operated according to the directions for operation provided by the manufacturer of the hydraulic seeding equipment. Hydraulic seeding applications shall ensure that all materials which may be included in the hydraulic seeding suspension, including seed, hydraulic mulch, tackifier, mulch binder, dye, fertilizer, and limestone, are added in the required amounts and sequence, and are fully mixed before and during application. Hydraulic seeding applications shall be made so that the hydraulic seeding suspension falls as a uniform spray onto the soil, and so that minimal areas within the seeding site shall receive significant underapplication or overapplication. B. Mulching 1. In all cases, hydraulic seeding suspension shall contain the appropriate hydraulic mulch, green dye, and a non-asphaltic mulch tackifier. 3.05 SODDING A. Time of Sodding: Sodding operations shall be conducted under favorable weather conditions. Sodding operations may, however, be conducted under unseasonable conditions at the option and on the full responsibility of the Grantee and with the approval of the SGAO, or his designee. If losses occur, there shall be no additional cost to the City. B. Installation Procedure 1. During periods of high temperature and after all unevenness in the soil surface has been corrected, the soil shall be lightly irrigated immediately prior to laying the sod. 2. The first row of sod shall be laid in a straight line with subsequent rows placed parallel to and tightly against each other. If the area is a slope steeper than 4: 1, sod shall be placed in rows perpendicular to the direction of the steepest part of the slope. Lateral joints shall be staggered to promote more uniform growth and strength. All joints shall be butted tightly in order to prevent voids which would cause air drying of the roots. On slopes 3: 1 or steeper, sod shall be anchored with steel staples placed 3' apart, with at least two staples per sod strip. 3. Immediately upon completion of a section of sodding, sod shall be rolled or tamped to ensure direct contact with the topsoil. Sifted topsoil (sand may be used for Bermudagrass sod) shall be used to level minor cracks in the joints between sod pads. Excess soil shall be removed to avoid smothering of adjacent grass. 4. Immediately after, planting, sodded areas shall be watered thoroughly. Sufficient water shall be applied to ensure penetration of moisture through the bottom of sod pads and into topsoil to a depth of 4 to 6 inches. 5. Protection of newly sodded areas with boundary fencing, stakes with ribbon, or other means shall be the responsibility of the Grantee. SITE GRADING AND LAWN ESTABLISHMENT - 02920 10 II III - 47- Item V-K.3. ORDINANCES/RESOL UTIONS ITEM # 59233 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council DEFERRED to the City Council Session of OCTOBER 13,2009: Ordinance to AUTHORIZE a temporary encroachment into a portion of City-owned right-of-way for SAMUEL W. ZIMMER to remove an existing block paver wall and a portion of an existing brick walk to construct and maintain a six (6) inch cobblestone curb and modify an existing cobblestone planter at 53-Yz Street and 5303 Ocean Front Avenue. DISTRICT 5 - LYNNHA VEN 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 September 22, 2009 II III - 48 - Item V-K.4 ORDINANCES/RESOLUTIONS ITEM # 59234 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED: Ordinance to ESTABLISH the Virginia Beach Field House Emergency Shelter at the Princess Anne Commons Athletic Village, which can accommodate an upper level Category Two Hurricane and TRANSFER $425,000 from Constitution Drive Extended to the Virginia Beach Field House Emergency Shelter. 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 September 22, 2009 'I "I I 1 AN ORDINANCE TO ESTABLISH CIP 3-150, VIRGINIA 2 BEACH FIELD HOUSE EMERGENCY SHELTER, AND TO 3 TRANSFER FUNDS FROM CIP 2-208, CONSTITUTION 4 DRIVE EXTENDED, TO CIP 3-150 5 6 WHEREAS, the City has reached an agreement with the owners of Virginia 7 Beach Field House, LLC corporation, who will modify the design and construction of the 8 Virginia Beach Field House to be built at the Princess Anne Commons Athletic Village, 9 to provide an emergency shelter, which can accommodate an upper level Category Two 10 Hurricane; and 11 12 WHEREAS, the additional modification cost estimated at $425,000, to be borne 13 by the City, can be provided by transferring from CIP 2-208, Constitution Drive 14 Extended to CIP 3-150, Virginia Beach Field House Emergency Shelter. 15 16 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 17 VIRGINIA BEACH, VIRGINIA: 18 19 1. That CIP 3-150, Virginia Beach Field House Emergency Shelter, is hereby 20 established as a capital project. 21 22 2. That $425,000 is hereby transferred from CIP 2-208, Constitution Drive 23 Extended, to CIP 3-150, Virginia Beach Field House Emergency Shelter, to increase the 24 City's inventory of emergency shelters. 25 26 Adopted by the Council of the City of Virginia Beach, Virginia on the 22nd day 27 of September ,2009. Requires an affirmative vote by a majority of all of the members of City Council. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: ~chJ(l~ Management Services ut:~e -" CA11287 R-2 September 14, 2009 '1'1 II Initiative Report Evacuation Shelter and the Viriinia Beach Field House INITIATIVE As the field house is the largest facility under design and soonest to be constructed, City staff has been investigating the possibility ofpartnering with the private developer to create a solution to our City's need for an upper level Category Two Hurricane shelter which can accommodate several thousand citizens during a declared emergency. This facility could also be prepared to receive those citizens who may require special care. BACKGROUND The Virginia Beach Field House started with a vision from a partnership, legally known as Virginia Beach Field House, LLC, (VBFH, LLC,) who have developed and successfully operated a 75,000 square foot field house in Fredricksburg, Virginia. The Fredricksburg Field House includes five multi- purpose fields with artificial "field turf," all of the necessary supporting amenities, that offer soccer, lacrosse, field hockey, flag football, dodge ball, and volleyball all year long in a climate-controlled environment. VBFH,LLC saw the opportunity to provide that same type of indoor recreational amenity, but at a much larger scale, for the Hampton Roads area and targeted Virginia Beach as the location. In October 2006, on a parallel path, the City of Virginia Beach Department of Parks and Recreation commissioned a market analysis, called the Indoor Sports Venue Feasibility Study, to determine if such a facility would be a good fit for the Princess Anne Commons area. The study, conducted by industry leaders Brailsford & Dunlavey, affirmed that the Hampton Roads market was ripe for such a facility - - a year-round, climate-controlled, state-of-the-art indoor athletic facility for community recreational use in the Princess Anne Commons area. As recommended in the study, the City of Virginia Beach coordinated a Request for Proposals (RFP) process to identify potential developers/long-term operators to not only make an investment to build the facility but to commit to operating it long-term in Virginia Beach. VBFH,LLC's proposal was determined to be the partnership which could meet all of the City's expectations for the facility. The facility conceptual plan and corresponding business plan was fine-tuned and VBFH, LLC is now in the process of having their land lease with the City executed and their construction plans submitted for City approval. The Virginia Beach Field House is now planned to be in the heart of the Princess Anne Commons - Athletic Village, on a lease area of 12.7 acres, with a building size of 150,800 square feet and future expansion potential of another 35,250 square feet. On July 23, staff held a meeting with multiple department representation and John and Tom Wack from the Chesapeake Sports Group. The Wack brothers are the owner/partners ofVBFH, LLC, and are completing design for the construction of the Virginia Beach Field House in our Princess Anne Commons Athletic Village adjacent to the Sportsplex. 9/15/2009 1 II 1'1 The purpose of the meeting was to determine the intended occupancy category of the facility, the structural capacity of the building to withstand wind loads and the capacity of the skin to resist wind borne debris impacts. Additionally, we inquired as to the electrical configurations of the intended field house design and the types of exterior glass and door configurations within the facility. Both of the Wack brothers were extremely cooperative and took the time to provide a facility briefing to the staff gathered. Our staff intent was to take advantage of the single largest building which the City will be constructing that could provide a much needed sheltering capability for our citizens. It is the determination of staff that we have a need for an increased hurricane category level sheltering facility. Though we have constructed a few Occupancy Category IV "essential" Public Safety facilities, the current sheltering facilities for our citizens within the City are limited Occupancy Category III schools. Thirteen of them are designated as primary shelters and 10 are designated as secondary shelters. Of the thirteen primary shelters, 12 are rated to withstand a Category One Hurricane (74-96 mph sustained winds). Only one is are able to withstand a low level Category Two Hurricane (96-110 mph sustained winds). The Category Two Hurricane sheltering capacity for the City is approximately 600 individuals. Unfortunately, no special needs shelter has been established for our City. A GIS product displaying the City's shelters is attached. It was very clear from our discussions with Chesapeake Sports Group they had a very narrow timeline focused on opening for business not later than August 2010. Though willing to look at the structural, electrical, design considerations needed to upgrade the sheltering capacity of the facility they emphasized their concern not to extend the design and construction time line. Through discussion, both sides agreed to six action items they willingly agreed to investigate. CONSIDERATIONS On August 27, the Chesapeake Sports Group (Wack brothers) returned to meet with staff and provide their evaluation of the six items. Their PowerPoint presentation is attached. Provided below is the outcome of the discussion regarding the six items: 1. Provide a description and cost to design and construct the structural and skin improvements from our intended occupancy category III facility to one which will meet the new 2009 ICC 500 building code requirement of 160MPH 3 second/l30MPH sustained wind rating. The current design level provides: . Occupancy Category III (Public Assembly criteria) . Structural Wind Resistance 110 mph sustained and 130 mph gusts (upper level Hurricane Category Two). . Masonry to 10' on exterior. . Metal sandwich panels above. . Clerestory of translucent glass fiber reinforced acrylic panels at the eaves. . Standing seam metal roof. . Commercial grade glass in entrance way. . Commercial grade roll up doors. In order to upgrade structural capacity to withstand the new 2009 ICC 500 building code with a 160/130 mph wind rating the following modifications would be required: . $400,000 in steel upgrades. . Because of increased wind lift, five times the amount of current concrete for the foundation at a cost of at least $1,000,000. 9/15/2009 2 II "I . Anticipate the need for piles under the foundation to hold up the additional weight (@ $600,000). . Need for a whole new round of geotechnical studies and reports. . Not possible on current schedule. Because of the costs and impact to the project delivery schedule, no further effort was made to pursue a high level wind resistance rating beyond the proposed design level. 2. Provide a description and cost to design and construct the structural and skin improvements from our intended Occupancy Category III facility to one that will meet the new 2009 ICe 500 building code requirement for withstanding wind borne debris (9 Ibs 2x4 at 64MPH). The current status of the facility design for wind blown missile resistance corresponding to the structural wind resistance capacities of 110 mph sustained /130 mph gusts: . Standing Seam Roof: Good . Block Wainscot: Good . Metal Wall System: Good . Clerestory: Fails . Front Entrance: Fails . Roll Up Door: Fails Because the structure would fail before meeting the ICC 500 impact requirement, there is no need to develop a solution to meet the new 2009 ICC 500 building code requirement (9 lb. 2x4, 64 mph) 3. Provide a description and cost to add additional electrical panel(s) to support extra electrical outlets on the walls adjacent to each of the athletic areas. The concentration of these being in the hard floored courts area and only a few in the turf and mezzanine areas. . 36 each duplex outlets 20 amp dedicated circuits 110 volts $23,700 The City's intent is to have the developer install ample dedicated circuits which will allow us, during times of emergency sheltering, to connect multiple power strips in support of special care plug-in requirements. Each circuit can reasonably accommodate 8 to 10 individual outlets. 4. Provide a description and cost to install an electrical quick disconnect on the exterior of the building where the Dominion Power connection and meter enters for the purpose of allowing back-up mobile generators to hook up and power the entire facility. . Quick Connect For Generator $25,320 Because this facility is serviced by a main Dominion Power distribution station which supports the Princess Anne Medical Complex, we have a high degree of confidence the new Field House will receive Level I attention (confirmed via discussion with Max Bartholomew). As such, we see no need to invest in a permanent back-up generator. A quick connect configuration will suffice and allow the City staff to plan accordingly. 5. Provide a description and cost to add an exterior slab adjacent to the exterior of the building where the Dominion Power connection and meter enters for the purpose of allowing two large generator(s) to be located during emergency periods. . Generator Slab 9/15/2009 $15,000 3 II "I This will allow the positioning of mobile generators in advance of a storm event where they can be tied down and secured. 6. Provide a description and cost to provide storm shutters or equivalent as compared to upgraded exterior glass and doors of impact resistant types to meet wind borne debris requirements. The developer was intending to use standard commercial grade glass and doors which would meet the City's current building codes. Below are the costs to upgrade the glass and doors to correspond to the 110 mph sustained/130 mph gust structural wind load resistance capacity: 1. Entrance Way $67,800 2. Overhead Doors $19,800 3. Glass for Clerestory $237,600 4. Redesign $20,000 Total $345,200 Chesapeake Sports Group's design would move the glass for the clerestory from the top of the wall sections adjacent to the ceiling down to a mid wall point where additional reinforcing frames and laminated, impact resistant material would be installed. This will allow them to obtain the natural lighting desired while improving the resistance to wind and impact. ALTERNATIVE A decision not to pursue upgrades to the windows, doors and electrical design would result in our missing an opportunity to increase the City's inventory of evacuation shelters. Additionally, we will lose the chance to bring online a special care capable shelter. The next anticipated large building for consideration of sheltering is the Kellam High School which we fully intend to build even more sheltering capability into that facility. The Kellam High School is not anticipated to be online for another six years and the cost to upgrade the storm resistance of the school will be significantly more costly than what we propose to do with the field house. RECOMMENDATIONS It is the recommendation of the staff working group, as verified by the director's signatures, the City should invest $410,000 in upgrading the windows, doors and electrical capabilities so as to have available an upper level Hurricane Category Two shelter which can accommodate several thousand citizens during a declared emergency. This facility will also be prepared to receive those citizens who may require special care. Adding this facility to our City shelter inventory will provide the emergency operations planning staff a significant resource. We also believe this will be the first public/private sheltering partnership in the region that can provide an upper level Hurricane Category Two accommodation. To ensure access, and further develop the partnership, the Chesapeake Sports Group is willing to enter into a long term agreement to make the field house available as a City evacuation shelter during periods of declared emergency. Preliminary discussions indicate their willingness to operate the kitchen and provide custodial support during these periods contingent to a mutually beneficial compensation agreement. If this initiative has merit, both the construction upgrades and the long term sheltering agreement could be consolidated into the same binding agreement. 9/15/2009 4 II iii Fortunately, we have settled on another CIP project (Constitution Drive Extension) and the City funded portion has come in less than the three year old appropriation. We are recommending the $410,000 needed for the field house upgrades be transferred from CIP 2-208. A copy of the Constitution Drive budget analysis is attached. If this is an acceptable arrangement, request we take action immediately to brief the City Council and draft an ordinance committing the funds. This immediacy will allow the developer to request the necessary design changes and allow the staff to draft a mutually beneficial binding agreement. The Chesapeake Sports Group project delivery timeline is to commence construction in November. Signatures: ~/LC Chief Steve Cover, Fire Department q -IS-09 Date ~~/L Robert Morin, Human Services J. /' . cz:~~ p~j.~~ Venita ewby-Owens, Health Department 9 /1'-'- /0 t Date If -/~ -()1 Date f ) /"/--"-+-1 '/I~/01 Date unity Development 1;1'5/6\ Date {,Ld~/zr-~~ Cindy C@iIS, Parks Rec ion cp,-lt'l Dat / nt Services ~ 6,# 'oC} Date , q- I c; _ () '1 -. ~ I Date David L. a n, Deputy City Manager c::I-- to ~ ~~\M~~~ ,~\~ James K. Spore, City Manager q. l~\Cf\ Date Date 9/15/2009 5 II ,'I I - 49- Item V-.K.5. ORDINANCES/RESOLUTIONS ITEM # 59235 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED: Resolution to COMMEMORATE Robert F. "Bob" Hedrick for his service to his country, his community and his successful efforts to build Tidewater, "brick by brick", into what it is today. 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 September 22, 2009 11'1 Requested by Vice-Mayor Jones and Councilmembers Davis, DeSteph, Diezel, Dyer, Uhrin, Villanueva, Wilson, and Wood 1 A RESOLUTION COMMEMORATING ROBERT F. 2 "BOB" HEDRICK 3 4 WHEREAS, Robert F. "Bob" Hedrick was a forty-year resident of Virginia Beach 5 who was born in 1940 and grew up in Newport News; 6 7 WHEREAS, after high school, Bob joined the United States Marine Corps, and 8 his service in the corps instilled in him a great love of country and the values of being a 9 great American; 10 11 WHEREAS, his subsequent international work for the Army Corps of Engineers 12 included work on the Underground Command Center in Riyadh, Saudi Arabia, which 13 General Norman Schwarzkropf later used when commanding Operation Desert Storm; 14 15 WHEREAS, Bob later became part-owner, and then full-owner of Sprinkle 16 Masonry; 17 18 WHEREAS, the results of Bob's dedicated and outstanding work with Sprinkle 19 Masonry can be seen in the well-recognized facades that illuminate the Tidewater 20 region, including MacArthur Center, Children's Hospital of the King's Daughters, Maury 21 High School, the Meyera E. Oberndorf Central Library, the Virginia Air and Space 22 Museum, several Virginia Beach recreation centers, and countless Tidewater schools 23 and government projects, as well as projects in North Carolina, West Virginia, and 24 Pennsylvania; 25 26 WHEREAS, "Quality work for a good price" was the centerpiece of Bob's 27 business philosophy; 28 29 WHEREAS, his efforts to help others was one of his greatest attributes, and he 30 fervently sought to ensure that others would be afforded the same opportunities that he 31 received; 32 33 WHEREAS, Bob's selfless efforts on the behalf of others included his early 34 advocacy on behalf of women in construction, including his staunch support of the 35 National Association of Women in Construction; 36 37 WHEREAS, Bob also served as a member of the National Federation of 38 Independent Business, as a board member of both Liberty Mutual Insurance and the 39 Mason Tenders Union, and his membership in the Construction Estimators Association; 40 41 WHEREAS, Bob's commitment to public service and his community led him to 42 run for City Council and to be a vocal advocate for Virginia Beach's citizens and 43 taxpayers; and II 'I I 44 WHEREAS, Bob's love of country and his community was surpassed only by his 45 love of his devoted wife, Toni, his beloved children-Donald, Robert, and Deborah- 46 and his five grandchildren- Tricia, Heather, Christina, Jacob, and Jordan-all of Virginia 47 Beach. 48 49 NOW THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 50 VIRGINIA BEACH, VIRGINIA: 51 52 That the City Council hereby commemorates Robert F. "Bob" Hedrick for his 53 service to his country and his community, including his successful efforts to build 54 Tidewater, "brick by brick," into what it is today. 55 56 Adopted by the City Council of the City of Virginia Beach, Virginia, this ??nn 57 day of September , 2009. APPROVED AS TO LEGAL SUFFICIENCY: ::e ~ -y- City Attorney's Office CA11282 R-2 September 15,2009 II ,'I I - 50 - Item V-K.6. ORDINANCES/RESOLUTIONS ITEM # 59236 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED: Resolution to REFER to the Planning Commission, for consideration and recommendation, an Ordinance to AMEND 9211 of the City Zoning Ordinance (CZO) re political campaign signs. 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 September 22, 2009 II ,'I I 1 A RESOLUTION REFERRING TO THE 2 PLANNING COMMISSION AN ORDINANCE 3 TO AMEND SECTION 211 OF THE CITY 4 ZONING ORDINANCE PERTAINING TO 5 POLITICAL CAMPAIGN SIGNS 6 7 NOW THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 8 VIRGINIA BEACH, VIRGINIA: 9 10 That the above-entitled ordinance, a copy of which is attached, is hereby referred 11 to the Planning Commission for its consideration and recommendation. 12 13 Adopted by the City Council of the City of Virginia Beach, Virginia, this 22nd 14 day of September , 2009. APPROVED AS TO LEGAL SUFFICI CY: ----- City Attorney's Office CA11283 R-1 September 4,2009 ;1 11'1 1 AN ORDINANCE TO AMEND SECTION 211 2 OF THE CITY ZONING ORDINANCE 3 PERTAINING TO POLITICAL CAMPAIGN 4 SIGNS 5 6 Section Amended: 9211 7 8 WHEREAS, the public necessity, convenience, general welfare and good zoning 9 practice so require; 10 11 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 12 BEACH, VIRGINIA: 13 14 That Section 211 of the City Code is hereby amended and reordained to read as 15 follows: 16 17 APPENDIX A ZONING ORDINANCE 18 19 20 ARTICLE 2. GENERAL REQUIREMENTS AND PROCEDURES APPLICABLE TO 21 ALL DISTRICTS. 22 23 24 B. SIGN REGULATIONS 25 26 27 Sec. 211. Signs permitted in all districts. 28 29 The following types of signs are exempted from all of the provisions of this 30 ordinance, except for illumination, construction, and safety regulations and the following 31 standards: 32 33 (a) Public signs. Signs of a noncommercial nature and in the interest of, 34 erected by or on the order of, a public officer in the performance of his 35 public duty, such as directional signs, regulatory signs, warning signs, and 36 informational signs. 37 38 39 (e) Political campaign signs. Signs announcing candidates seeking public 40 political office and other data pertinent thereto shall be permitted up to a 41 total area of eight (8) square feet for each premises in a residential zone 42 and thirty-two (32) square feet in a commercial or industrial zone. These 43 Such signs shall be confined within private property and shall not 44 encroach into the visibility triangle at street intersections. Those signs may 45 be displayed sixty (60) days prior to and se'./en (7) days after the election 46 for ,:..hich intended. In cases where a final election follo'Ns a primary II "I 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 election, those candidates who 'lion in the primary election may continue to display their signs during the interim period and up to seven (7) days after the final election. (h) Commercial signs used for political campaign advertising. Commercial signs may be used for political campaign advertising.:.., sixty (60) days prior to and seven (7) days after the election for which intended. In cases where a final election follm\'s 3 primary election, those candidates who v:on in the primary election may continue to display their signs during the interim period 3nd up to seven (7) days 3fter the fin31 election. The political campaign advertisement shall encompass the entire surface area upon which it is placed. The advertisement shall be secured to the commercial sign in a manner acceptable to the department of permits and inspections. COMMENT These amendments delete the provision regarding time limitations for political campaign signs. The deletion of durationallimits for political campaign signs is the result of a U. S. District Court decision which held that such limits on signs posted on private property are unconstitutional. of Adopted by the Council of the City of Virginia Beach, Virginia, on the ,2009. day ---- APwJC;~~frr::lCY: City Attorney's Office CA 11261 R-5 September 2, 2009 II - 51 - Item V-K.7. ORDINANCESIRESOLUTIONS ITEM # 59237 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED, AS REVISED*: Resolution re the 2010 Community Legislative Agenda and REQUESTING support of same by the City's local General Assembly Delegation. Mayor Sessoms advised the Hampton Roads Realtors requested Proposal 3 and 5 be pulledfrom the Legislative Agenda. This will allow a committee to be formed to discuss their working together 3. Allow the City to Make Exterior Repairs on Certain Structures Requested By the Department of Housing and Neighborhood Preservation. 5. Authority to Hold a Property Owner's Agent, Property Manager, or the Responsible Party, Accountablefor Violations of the Rental Ordinances Councilman Davis request was ADDED to the Agenda:: REQUEST that State Legislation provide localities a choice between providing new employees with a "Defined Benefit Retirement Plan" or a "Defined Contribution Retirement Plan. Councilman Diezel requested Item 16a be removedfrom the Legislative Agenda: 16a. Alternate Version: Job-Related Disability Retirement: Alternate Eligibility Guidelines Councilman DeSteph requested Item 20 be DEFERRED to have information provided re the effect. 20. ModifY the Virginia Telecommunication Sales and Use Tax Act regard to the Communications Services Provider Discount Item 24 shall be removedfrom the Legislative Agenda: 24. Property Tax Abatements for Homes on the Virginia Landmark Register Transportation Funding shall be added September 22,2009 II 011 I - 52 - Item V-K.7. ORDINANCES/RESOLUTIONS ITEM # 59237 (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 Council Lady Henley voted a VERBAL NAY on City of Virginia Beach 2010 Requested Code of Virginia Changes: Item 2: Passing Bicycles September 22, 2009 II 'I 1 A RESOLUTION ADOPTING THE CITY'S 2010 2 LEGISLATIVE AGENDA 3 4 WHEREAS, the City Council traditionally adopts a Legislative Agenda and 5 requests member of the City's local delegation to the General Assembly sponsor and/or 6 support legislation therein; and 7 8 WHEREAS, the City Council has considered a number of goals and objectives 9 for inclusion in the City's 2010 Legislative Agenda. 10 11 NOW THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 12 VIRGINIA BEACH, VIRGINIA: 13 14 That the City Council hereby adopts the City's 2010 Legislative Agenda, which is 15 attached hereto as Exhibit A and is hereby incorporated by reference. 16 17 BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA 18 BEACH, VIRGINIA: 19 20 That the City's Delegation to the General Assembly is hereby requested to 21 sponsor and/or support legislation in the 2010 Session of the General Assembly that 22 would carry out the goals and objectives of the City as set forth in its Legislative 23 Agenda. 24 25 BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA 26 BEACH, VIRGINIA: 27 28 That the City Clerk is hereby directed to transmit a copy of this resolution to each 29 member of the City's local Delegation to the General Assembly. 30 31 Adopted by the City Council of the City of Virginia Beach, Virginia, this ? ?nd 32 day of November , 2009. APPROVED TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: -;:e~ ~ City Attorney's Office CA 10851 R-2 September 22,2009 'I "II City e>f -Virgi~ia Beach VBgov.com W1LWM 0 SESSOMS. JIl MAYOR t.lJNICIPAl CENTER BUlDING 1 240 1 COURTHOUSE DRIVE VIRGINIA BEACH, VA 23456-9001 (757) 38S-4581 FAX (757) 4~5699 WSESSOMSaWGO\I C0t.4 September 23, 2009 Members of the Virginia Beach General Assembly Delegation Subject: 2010 Adopted Legislative Agenda Dear Honorable Senators and Delegates: Please find attached a copy of the 2010 Legislative Agenda that was adopted by the City Council on September 2200. I think you will see a number of the issues that were brought up in the joint meeting we had with you, City Council, the School Board and community groups earlier this year. Bob Matthias will be contacting you in the very near future in attempts to find patrons for the items. As you know, this year he will be assisted by Angie Bezik and Ann Flandermeyer of Principle Advantage, Ltd. This will be very difficult for the General Assembly and Commonwealth. With the continued poor economic outlook for the State and localities, we must work together to address the needs of our citizens to the best of our collective ability. Sincerely, jV~ William D. Sessoms, Jr. Mayor WDS!RRM/amg Cc: Honorable Members of the City Council James K. Spore, City Manager Bob Matthi:ls, Assistant to the City Manager Angela I. Bezik, Principle Advantage, Ltd. Ann E. Flandermeyer, Principle Advantage, Ltd. Ruth Fraser, City Clerk II 1'1 LEGISLATIVE AGENDA GENERAL ASSEMBL)( SESSION 2010 CITY OF VlR6/NIA BEACH '~ .* I{ ... - l '" T . , BUILDING "A COMMUNITY FOR A LIFETIME" MUNICIPAL CENTER BUILDING ONE 2401 COURTHOUSE DRIVE, SUITE 234 VIRGINIA BEACH, VIRGINIA 23456 Adopted September 22, 2009 ,I ,I I 2010 LEGISLATIVE AGENDA CITY OF VIRGINIA BEACH TABLE OF CONTENTS T ABLE OF CONTENTS - PREFACE - CITY OF VIRGINIA BEACH 2010 REQUESTED CODE OF VIRGINIA CHANGES- 1. Following Too Closely 2. Passing Bicycles 3. Authority to Collect the Costs Incurred with the Abatement of Graffiti and other Defacements on Commercial Property 4. Industrial Revenue Bonds 5. Admissibility of Sound Meter Calibration Certificates 6. Authority to Amend Photo-Monitoring System Processing 7. Authority to Use Photo-Monitoring System Information for Employee Discipline Purposes 8. Carrying Concealed Weapons in VehicleslButterfly Knives 9. Daily Pawn Reports 10. Issuance of a Warrant in a DUI Case by an Officer Based on the Observations of the Arresting Officer 11. Processing Prior to Release on Recognizance Bonds 12. Civil Penalties for Violations of Sewer Use/Fats, Oils and Grease (FOG) Ordinances 13. Prohibit Possession of Firearms and other Delineated Weapons in Mental Health Facilities 14. lob-Related Disability Retirement: Alternative Eligibility Guidelines 15. Post Labor Day Opening for Schools 16. Court Fines and Fees 17. Courthouse Maintenance Fees 18. Ownership of State-Owned Bottomlands after Placement of Fill 19. Technical Amendment Regarding Voting Required for Board of Zoning Appeals' Actions 20. Expansion of the Virginia Human Rights Act 21. Transportation Funding 22. State Legislation that would Enable Localities to have a Choice between providing New Employees with a Defined Benefit Retirement Plan or a Defined Contribution Retirement Plan CITY OF VIRGINIA BEACH FUNDING ITEMS - 1. Support for Increased Funding for the Governor's Opportunity Fund 2. Funding for the Virginia Tourism Corporation 3. Continue Funding for BRAC Effort Page 2 >, ,1 L' <' "....~ p ~ ~ j , Page # 2-3 4-5 6-29 6 7 8 9 10 11 12 13 14 15 16 17 18 19-20 21 22 23 24 25 26 27 28-29 30-33 31 32 33 ApPENDIX: DRAFTS OF PROPOSED LEGISLA nON - KEYED TO REQUESTED CODE CHANGES 1. Following Too Closely 2. Passing Bicycles 5. Admissibility of Sound Meter Calibration Certificates 6. Authority to Amend Photo-Monitoring System Processing 7. Authority to Use Photo-Monitoring System Information for Employee Discipline Purposes 8. Carrying Concealed Weapons in Vehicles/Butterfly Knives 9. Daily Pawn Reports 10. Issuance of a Warrant in a DUI Case by an Officer Based on the Observations of the Arresting Officer 11. Processing Prior to Release on Recognizance Bonds 12. Civil Penalties for Violations of Sewer Use/Fats, Oils and Grease (FOG) Ordinances 18. Ownership of State-Owned Bottomlands after Placement of Fill 19. Technical Amendment Regarding Voting Required for Board of Zoning Appeals' Actions II dl Page # 34-52 35 36 37 38-39 40-43 44 45 46-47 48 49-50 51 52 Page 3 It' ';",,; ; "'!,P'I 11 "I I 2010 LEGISLATIVE AGENDA CITY OF VIRGINIA BEACH PREFACE The 2010 Session of the General Assembly will be of vital importance to the Commonwealth of Virginia. Besides setting the budget for the next two years, the General Assembly Members and administration will also be faced with addressing unprecedented revenue shortfalls brought about by the worst financial setback in the economy since the Great Depression. Also other policy decisions affecting the daily lives of Virginians will be considered. One of the overriding issues that must be addressed by the 2010 Session of the General Assembly is transportation. One example of the tremendous shortfall of transportation funding in Virginia is that just a few years ago, the City of Virginia Beach received over $32 million a year in urban funding to build city streets. Starting in 2010 we will be receiving zero dollars from the Commonwealth. Moreover, it is probable that the Commonwealth is now unable to match every dollar in Federal Transportation dollars available to Virginia meaning that even the interstate system is suffering tremendous cutbacks. This shortfall in transportation funding becomes even more apparent because of the recent announcement by the Commonwealth that the current six-year plan will have to suffer another $900 million cutback. The General Assembly has attempted repeatedly to address transportation over the last several years. These attempts have fallen short. For instance, House Bill 3202's major revenue sources were found to be unconstitutional. Furthermore, the $3 billion in debt authorized to be issued under that legislation has been substantially unused because of the Commonwealth's inability to provide the required debt service. Although public-private partnerships i.e. toll roads, are key to addressing transportation shortfalls other revenues are needed. Very few of the projects proposed in the Hampton Roads Six Major Projects Plan for instance are stand alone toll feasible projects. They need other resources of money to make them feasible unless the tolls are so high as to be self defeating. For instance, the Rt. 460 Project has gone through multiple years of review as a public-private project. However, only one proposer is still in the game and it is estimated that over $50 million a year in revenue is needed above and beyond fairly substantial tolls to make this project a reality. Obviously, those additional monies are not available within the current revenue structure. While public-private partnerships will have a key in addressing transportation needs in the future, they are not a panacea. For instance, although it was estimated that the Mid-Town Tunnel Project could be completed as a stand-alone PPT A project as long as it was tolled along with the Downtown Tunnel, it now seems that although it will be toll feasible, the tolls will be considerably higher than what were projected a few short years ago. Page 4 'ille I) i 1'1 Transportation must be addressed and addressed comprehensively, both state-wide and in the two areas of the State where transportation has become a quality of life issue; northern Virginia and Hampton Roads. In order for the timely movement of people, goods and services to continue and for Virginia to remain competitive, new revenues must be directed to transportation needs as soon as possible. The City Council has also continued to be concerned about the level of funding available for basic services like education, social services and public safety. Although at the time of the adoption of this package, the proposed cuts to the budget in the current fiscal year and the Governor's proposal for the next biennium are unknown, it is likely that education, which has so far missed having substantial cuts, mainly through the intervention of Federal Stimulus funds, will likely be cut for FYI0 and also in the upcoming fiscal year. There is also discussion by some General Assembly Members to redefine public school teachers as local government employees, pushing more of the responsibility for the cost of these employees back on the localities as a way of reducing the state cost. Finally, other services, as mentioned above such as social services, public health, mental health and public safety have suffered under the budget cuts required by the current fiscal situation. The General Assembly is requested to ameliorate those cuts as soon as possible. City Council has repeatedly said, the State should fully fund the true cost of State government services such as courts, corrections, mental health services and public health. F or several years the City has paid a larger and larger share of these state responsibilities in order to retain employees to provide critical services to our citizens. Post Script: The Virginia Beach City Council has not included any funding items for any non-state agencies or activities in this request other than transportation. Although there are certainly many requirements for expanded funding, the City Council recognizes the current circumstances that make extension of funding for non-state agencies impossible at the present time. Page 5 ~ ! r ''1 ; ;~ II III CITY OF VIRGINIA BEACH 2010 REQUESTED CODE OF VIRGINIA CHANGES 1. FOLLOWING Too CLOSELY Council Member Bill DeSteph Background Information: State law currently provides that a driver shall not follow a motor vehicle, trailer, or semitrailer more closely than is reasonable and prudent, having due regard to the speed of both vehicles and the traffic and highway conditions. The law does not, however, prohibit following too closely behind a bicycle. Request: Add bicycles to the list of vehicles for which it is illegal to follow too closely. See Appendix Item 1 (page 35) for text of the requested legislative change. Page 6 j, II i 'I II 2. PASSING BICYCLES Council Member Bill DeSteph Background Information: State law currently provides that a driver overtaking a bicycle shall pass at least two feet to the left of the overtaken bicycle and not proceed to the right side of the highway until safely clear of the overtaken bicycle. A nationwide movement on behalf of bicyclists has sought to broaden the clearing distance to three feet, and such changes have been enacted in several other states. This change would better protect the safety of both bicyclists and motorists. Request: Change the passing distance from two feet to three feet. See Appendix Item 2 (page 36) for text of the requested legislative change. Page 7 II 'I 3. AUTHORITY TO COLLECT THE COSTS INCURRED WITH THE ABATEMENT OF GRAFFITI AND OTHER DEFACEMENTS ON COMMERCIAL PROPERTY. Andy Friedman Department Director Department of Housing and Neighborhood Preservation Background Information: Section S 15.2-908 of the Code of Virginia gives the City the authority to enact an ordinance to enforce the removal of graffiti and other defacements on private property when visible from the public right-of-way. The city annually appropriates funding that is used to provide free graffiti abatement services to residents and property owners. The cost of abating graffiti on commercial property in 2008-2009 was $15,357, which represented 58% of total abatement costs. In some cases vacant property can be the subject of multiple graffiti defacements, resulting in significant costs. For example, the vacant gas station at Laskin Road and Birdneck has had to be abated four times. Although many commercial property owners have the financial capability of abating graffiti, and most do so quickly and on their own, the few who don't cause the public to incur significant costs. It is therefore requested that state authority be granted to charge owners who fail to remove it in a timely manner for the abatement costs. If this authority is obtained and then enacted into city code, it would provide an additional incentive for owners who currently do not conduct abatement to implement graffiti deterrence measures including security cameras, graffiti~resistant surfaces, or additional security patrols, as well as to abate the graffiti themselves when it occurs. For FY 07/08, the city contractor abated 161 total cases of graffiti at a cost of $36,791. Of those cases, 41 were commercial properties at a cost of $14,634. For FY 08/09, the city contractor abated 214 total cases of graffiti at a cost of $26,203. Of those cases, 81 were commercial properties at a cost of$15,357. Request: Commercial property owners have an obligation to, and generally do keep their properties maintained to attract tenants and customers, and often have the necessary maintenance staff and resources available to abate graffiti themselves This request would provide a tool to address those few who do not abate the graffiti themselves. The City requests the General Assembly amend Virginia Code S 15.2-908 entitled "Authority of localities to remove or repair the defacement of buildings, walls, fences and other structures" to provide localities the authority to collect the costs incurred for the abatement of graffiti and other defacements on commercial property. Page 8 i j ~ (f j :11 4. INDUSTRIAL REVENUE BONDS Warren Harris Department Director Department of Economic Development Background Information: In the 2003 General Assembly session, the General Assembly approved an act to amend the definition of "eligible business" in the Virginia Small Business Financing Act (Va Code Sec. 2.2-2279) per the Virginia Small Business Financing Authority's (VSBF A) request. This amended definition allows the VSBF A to issue bonds not only for small businesses, but also to 50 I (c)(3) organizations of any size. Prior to the amendment, the VSBFA could only issue bonds to for-profit entities meeting gross income, employment, and net worth limits. In contrast to those limits applicable to for-profit organizations, the amended definition includes all 501(c)(3) organizations. Currently, the Virginia Beach Development Authority (Authority) has issued, and plans to issue, bonds for 501(c)(3) organizations, including Sentara's current facilities as well as future facilities (Princess Anne Sentara Hospital) located in Virginia Beach. The Authority currently receives 1/8 of I % of the outstanding principal of the bonds as an administrative fee on an annual basis. This is a major revenue stream used to fund the Authority's operations. The VSBFA's policy caps the administrative fees at $75,000 per year for non-profits, which is forcing some Development Authority's in Hampton Roads to reduce the 1/8 of I % administrative fee that is currently in place. If larger non-profits begin to use the VSBF A, the revenue stream that is available for the Authority will be significantly reduced, which will negatively affect economic development activities in the community. Request: To resolve this issue, we request that this loophole be closed by executive action. We must revert back to the former definition of eligible business or at a minimum, apply some sort of cap for non-profits that the VSBF A can utilize without undermining local development authorities. Page 9 'f' "I 5. ADMISSIBILITY OF SOUND METER CALIBRA TION CERTIFICATES Chief A.M Jacocks Chief of Police Department of Police Background Information: This recommendation provides for a new code section to allow sound meter calibration certificates to be introduced into evidence in court. The new section would provide additional authority for the Division of Purchases and Supply to establish standards for sound meters. Request: See Appendix Item 5 (page 37) for text of the requested legislative change. Page 10 I ~ {; ) '1 'I 6. AUTHORITY TO AMEND PHOTO-MoNITORING SYSTEM PROCESSING Chief A,M Jacocks Chief of Police Department of Police Background Information: The City requests that the General Assembly change Sections G and H of Virginia Code S 15.2- 968.1 to modify Sections G of the statute to allow the recipient of a summons up to 30 days to review the summons before making a response. Currently Section G provides the recipient of a summons up to 60 days to review the summons. This will expedite the closure of a case and allow quicker destruction of data as required by the statute. Section H prohibits (restricts) photo red light enforcement vendors from directly accessing DMV files to obtain the registered owner info from license plates displayed on vehicles that violate the red light. Thus, police departments who manage these systems in VA must access that info and provide it to the vendor. As far as we know, this requirement exists only in VA. The proposal is to allow the vendors, who already have NLETS access, to use NLETS to directly access the DMV files themselves. Request: See Appendix Item 6 (pages 38-39) for text of the requested legislative change. Page 11 "'.l II "I 7. AUTHORITY TO USE PHOTO-MONITORING SYSTEM INFORMATION FOR EMPLOYEE DISCIPLINE PURPOSES Chief A.M Jacocks Chief of Police Department of Police Background Information: Under the current provisions of Code of Virginia Section 15.2-968.1.H. "Information collected by a traffic light signal violation monitoring system installed and operated pursuant to subsection 'A' shall be limited exclusively to that information that is necessary for the enforcement of traffic light violations. Notwithstanding any other provision of the law, all photographs, microphotographs, electronic images, or other personal information collected by a traffic light signal monitoring system shall be used exclusively for enforcing traffic light violations..." As such, a locality operating such a system may not use the photograph to discipline employees who are determined to be the drivers of locality-owned vehicles that are captured by the system running a red light. Request: The proposed amendment will allow such information to be used for locality employee discipline purposes. See Appendix Item 7 (pages 40-43) for text of the requested legislative change. Page 12 \, l~~. ..~{!fjf} II !II 8. CARRYING CONCEALED WEAPONS IN VEHICLES/BuTTERFL y KNIVES Chief A.M Jacocks Chief of Police Department of Po/ice Background Information: Virginia Code S46.2-373 does not currently provide for a violation for carrying weapons in vehicles which are hidden from common observation. Request: The City requests that the General Assembly change Section A of Virginia Code ~ 18.2-308 to incorporate butterfly knives into the code as illegal to possess and would provide enforcement for this violations. See Appendix Item 8 (page 44) for text of the requested legislative change Page 13 I 9. DAILY PAWN REPORTS Chief A,M Jacocks Chief of Police Department of Police Background Information: The current statute allows towns with populations between 13,000-14,000 to adopt an ordinance requiring a pawnbroker to file daily reports electronically. The change would allow any locality, by adopting an ordinance, to require that pawnbrokers submit electronic reports. This would reduce workloads to process pawn records in compliance with state mandates and align with universal business practices of using computers in business transactions. Request: See Appendix Item 9 (page 45) for text of the requested legislative change. Page 14 , 1 , " ~., i I 10. ISSUANCE OF A WARRANT IN A DUI CASE BY AN OFFICER BASED ON THE OBSERVATIONS OF THE ARRESTING OFFICER Chief A.M Jacocks Chief of Police Department of Police Background Information: The City requests that the General Assembly change Virginia Code S 19.2-81 to enable a police officer to stop and arrest an intoxicated driver and transfer that arrest to another police officer. This change would allow supervisors and specialized officers, such as K-9 and SWAT officers, to remain available. The arresting officer or supervisor would still appear in court to testify. This recommended change is similar to the modification that was made several years ago to allow marine police officers to transfer a boating under the influence violation to another police officer. Request: See Appendix Item 10 (pages 46-47) for text of the requested legislative change. Page 15 \,1' ; I 11. PROCESSING PRIOR TO RELEASE ON RECOGNIZANCE BONDS Chief A.M Jacocks Chief of Police Department of Police Background Information: The City requests that the General Assembly change Section 4 of Virginia Code S 19.2-123 to clarify that in the event a person is released on recognizance, such release shall be predicated upon mandatory processing procedures, such as fingerprinting. Request: See Appendix Item 11 (page 48) for text of the requested legislative change. Page 16 , : li i;l , 1'1 12. CIVIL PENALTIES FOR VIOLATIONS OF SEWER USE/FATS, OILS AND GREASE (FOG) ORDINANCES Thomas M Leahy. III Department Director Department of Public Utilities Background Information: The City of Virginia Beach, along with other Hampton Roads localities and sewer authorities, entered into a Regional Consent Order with the Virginia Department of Environmental Quality (VDEQ) requiring the City, among other things, to take affirmative measures to reduce sanitary sewer overflows. As a result, the City adopted ordinances in February 2009 governing discharges into the public sanitary sewer system. While the ordinances contain enforcement provisions, the City lacks the authority to impose civil penalties upon violators. Civil penalties are an effective enforcement tool, and are used in enforcing the City Zoning Ordinance, Chesapeake Bay Preservation Area Ordinance, Wetlands Ordinance, and other City ordinances. Request: The City requests the General Assembly to add language to the Virginia Code S 15.2-2122 that would allow the City to include civil penalty provisions in its Sewer Use and FOG Ordinances. See Appendix Item 12 (pages 49-50) for text of the requested legislative change. Page 17 '. il!. 13. PROHIBIT POSSESSION OF FIREARMS AND OTHER DELINEATED WEAPONS IN MENTAL HEAL TH FACILITIES Bob Morin Department Director Department of Human Services Background Information: The General Assembly passed legislation in 2003 (codified at Virginia Code S 15.2-915) which prevents localities from prohibiting or restricting the carrying of weapons into City buildings. As a result, the City may no longer prohibit people from bringing firearms into the City's Mental Health and Mental Retardation and Substance Abuse Services facilities. Request: Code of Virginia S 18.2-308.1 prohibits the possession of firearms and other delineated weapons on school property. The City requests that the General Assembly enact a similar statute that would prohibit weapons on the premises of any Mental Health or Mental Retardation and Substance Abuse facility that is operated by a governmental entity, except when such weapons are in the possession of licensed security personnel or law enforcement officers. Page 18 i I 11 14. JOB-RELATED DISABILITY RETIREMENT: ALTERNATIVE ELIGIBILITY GUIDELINES Patti Phillips Department Director Department of Finance Background Information: The current VRS disability retirement code prOVIsIOns provide for employees to retire on disability if they cannot perform the job for which they were hired and the disability is a result of a job-related injury. This is the case even if the employee is medically able to perform other work without diminution of salary or benefits within the local government. Problem: VRS' eligibility determination process for disability retirements does not afford localities the opportunity to provide employees an alternate position within the employee's medical capabilities. Presently employees are entitled to disability retirement when an injury renders them unable to perform the essential functions of their specific job. In some cases; however, the employee is capable of performing other work and the locality may have alternate positions available for the employee within the parameters of the employee's medical restrictions. Providing an option to employers to locate other jobs within the organization with comparable pay, and allowing or requiring employees who are medically able to perform work to accept an alternate position within the locality would be less expensive for the VRS system and the employer. Likewise, it would provide continuous employment and benefits for the employee. Request: The General Assembly is requested to amend Virginia Code ~ 51.1-156 Disability retirement to provide additional eligibility criteria for a job-related disability retirement to provide that employees must be totally and permanently disabled from their current job and other positions with comparable pay within their employer's organization or to allow a local government employer the option to review the knowledge, skills and abilities of employees with job-related injuries and advise VRS if alternate positions are available; and for VRS to deny an employee who is determined to be medically capable of performing an alternate position eligibility for job- related disability retirement pursuant to the following guidelines: 1. If the employee cannot perform the essential functions of the job for which he/she was hired and the local government cannot retain the employee in that position; THEN, the local government shall have the option of finding an available alternate position within its organization or affiliated organizations (locality, school board, development authority, constitutional offices) (a) for which the employee is qualified, or can be qualified, that is within the employee's medical restrictions; (b) that does not result in a diminution of salary or Page 19 "\iI' II 1'1 I benefits; and (c) that has been offered to the employee. IF the locality chose to and was successful in finding an alternate position, the employee is capable of performing other work, and the alternate position is offered, the employee would not be eligible for disability retirement. Rather he/she would be required to accept the alternate position. 2. a. In the case of law enforcement employees: if the local government chooses to find an alternate position within its organization or affiliated organization and one is available within the employee's medical restrictions, that would not result in a diminution of salary or benefits, then any person disabled in any covered public safety position who (1) has at least fifteen (15) years of service in a LEO covered position and (2) who takes municipal employment in a non- covered position with the same local government shall retain the rights to the annual allowance in Virginia Code S 51.1-217 when they qualify for a service retirement. In addition, if said member retires with a service retirement at 25 years or more the service retirements will be unreduced. [This would also require an amendment to 51.1-138 or creation of a 51.1-138.1.] b. If the local government chooses to find an alternate position and one is available within the employee's medical restrictions, that would not result in a diminution of salary or benefits, then in the case of law enforcement employees with at least fifteen (15) years of service in a LEO position and who accept an alternate non-LEO position, upon service retirement from the same local government, the employee would be eligible, upon request, to obtain a retired law-enforcement officers photo identification card. [This provision would also require an amendment to S9.1-1000.] Code provisions affected: S 51.1-156 Disability retirement; S51.1-138. Benefits, and S9.1-1 000. Page 20 , ~j ,n\ l I 15. POST LABOR DAY OPENING FOR SCHOOLS Background Information: The total economic impact of the tourism industry in Virginia Beach for calendar year 2008 was $1.42 billion, stimulating 13,600 jobs. Starting schools in Virginia Beach and other localities in the Commonwealth prior to Labor Day would have significant financial consequences in the long term. Beginning schools prior to Labor Day would effectively reduce the available vacation time in August by two weeks, which is prime family vacation time that cannot be replaced. If the Virginia Beach school system begins before Labor Day and other localities follow our lead, it will have a negative effect on the economic impact of the tourism industry. To a lesser extent, this will also have an impact on this industry by affecting the labor pool available prior to Labor Day. Request: The General Assembly is requested to maintain the existing legislation concerning post Labor Day opening of schools. This allows all schools to open after Labor Day except those given exemptions by the State Board of Education. Page 21 \ ~ 11 ,~ \ I i II 'I 16. COURT FINES AND FEES James K. Spore City Manager City of Virginia Beach Background: On April 3, 2007, Virginia Beach City Council appointed a Blue Ribbon Tax, Fee and Spending Task Force. It was created to identify alternative tax and fee funding sources and spending policies and strategies; moreover it was divided into revenue and expenditure committees. On November 30, 2007, the Task Force presented revenue generating recommendations to City Council. In the final report, they indicated a need to increase court fines and fees to offset the cost of police officer court appearances and overtime associated with their presence.l Presently, the fines and fees offset 100% of the courts operating costs with an additional 2% for all other additional costs. While the 2% can be applied toward the cost of police officer presence, the offset is minimal. Request: Request that the General Assembly adjust the maximum misdemeanor fine schedule annually by the rate of inflation. I Blue Ribbon Tax, Fee and Spending Task Force Report to Council, November 30, 2007, Sec. 7.4j, p. 19. Page 22 \ it I ~ ~ _' !' II'l ,I 17. COURTHOUSE MAINTENANCE FEE James K. Spore City Manager City of Virginia Beach Background Information: On April 3, 2007, Virginia Beach City Council appointed a Blue Ribbon Tax, Fee and Spending Task Force. It was created to identify alternative tax and fee funding sources and spending policies and strategies; moreover it was divided into revenue and expenditure committees. On November 30, 2007, the Task Force presented revenue generating recommendations to City Council. In the final report, they indicated a need to increase the courthouse maintenance fee biennially to keep pace with the cost of maintaining the City's courthouse.2 Presently, the City of Virginia Beach's rate is $2/criminal or traffic case, and the City's caseload is the highest in the state. The cost of maintaining this heavily used facility is increasing. Request: In accordance with the Blue Ribbon Committee's suggestion, the City of Virginia Beach requests the General Assembly allow localities to adjust the courthouse maintenance fee schedule to reflect a biennial increase based upon the rate of inflation. If the fee would have been indexed against inflation five years ago, the City would have increased revenues 5.18% and generated an additional $47,000. Table 1 indicates the adjusted fee based upon the rate of inflation for the past five years. Courthouse Maintenance Fees Fiscal Actual Inflated Revenue Percent Year CPl1 Inflation Fee Revenues Revenues Change Change 2008 132.157 7.01% 2.29 $ 152,422 $ 174,706 $ 22,284 14.62% 2007 126.204 2.14 149,636 160,278 10,642 7.11% 2006 123.5 7.11% 2.14 202,021 216,388 14,367 7.11% 2005 118.6 2.00 199,620 199,620 - 0.00% 2004 115.3 2.00 208,647 208,647 - 0.00% Total $ 912,346 $ 959,640 $ 47,294 5.18% Table 1 Source: Virginia Beach Department of Management Services 2 Blue Ribbon Tax, Fee and Spending Task Force Report to Council, November 30, 2007, Sec. 7.4a, p. 16. Page 23 \ ' I ' \.1 ;' ~ w 'I II 18. OWNERSHIP OF STATE-OWNED BOTTOMLANDS AFTER PLACEMENT OF FILL Mark D. Stiles City Attorney City Attorney's Office Background Information: During the pendency of the City's application to the Virginia Marine Resources Commission (VMRC) to allow sand from the Army Corps of Engineers' Lynnhaven Inlet Federal Navigation Channel dredging project to be placed on Cape Henry Beach, the City agreed to sponsor legislation confirming that the Commonwealth's ownership of the submerged lands seaward of the mean low water mark would not change as a result of the placement of fill. Request: The City requests the General Assembly to amend Virginia Code Section 28.2-1200.1 to confirm that the Commonwealth's ownership of such lands does not change as a result of their being filled. The amendment would be declarative of existing law. See Appendix Item 18 (page 51) for text of the requested legislative change. Page 24 i '; ~ ~ II II 19. TECHNICAL AMENDMENT REGARDING VOTING REQUIRED FOR BOARD OF ZONING ApPEALS' ACTIONS Ci Background Information: In 2009, the General Assembly adopted changes to Virginia Code S 15.2-2308 requiring all actions of the Board of Zoning Appeals to be by a majority vote of those present and voting. By oversight, however, the General Assembly did not also amend Virginia Code S 15.2-2312 which requires actions of the Board in appeals of determinations of the Zoning Administrator to be by a majority vote of the entire membership of the Board. This omission created a conflict between the two Code sections. Request: This request is for a technical amendment to conform the provIsIOns of the two aforesaid Virginia Code Sections. The result would be that all actions of the Board of Zoning Appeals will require a majority of members present and voting. See Appendix Item 19 (page 52) for text of the requested legislative change. Page 25 .. :t"1 !:, 1'1 20. Exp ANSION OF THE VIRGINIA HUMAN RIGHTS ACT VirJ?inia Beach Human Rights Commission Background: The Virginia Human Rights Act (Va. Code S2.2-3900 et seq.) currently prohibits discrimination based on race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability. The City of Virginia Beach has prohibited the aforementioned since 1994. Request: The City requests that the General Assembly amend the Virginia Human Rights Act to also prohibit discrimination based on sexual orientation. Page 26 1 ~ 1'1 21. TRANSPORTATION FUNDING Council Member Rosemary Wilson Request: Transportation was partially addressed in the preface to the Legislative Agenda; however, City Council has specific requests that require immediate action by the General Assembly. At a minimum, the General Assembly should fully fund to a reasonable level the maintenance of our existing transportation infrastructure. This would include not only secondary roads but the interstate system and mean reverting back to reasonable mowing schedule, repaving schedule, bridge repair, etc. to preserve the existing public investment. Further, the General Assembly must provide funds to reopen the nineteen closed rest stops throughout the interstate system. This closure not only creates a great inconvenience for the motoring public but also reduces spaces for truckers to park their vehicles and rest as they must under federal regulations. Also the General Assembly must provide funding to match all federal transportation dollars since every one dollar of State investment is matched by four federal dollars. Virginians have paid into the Federal Treasury and we must receive our fair share for investment on Virginia's roads. On a larger scale, the General Assembly should provide funding to replace the funding loss on urban secondary and primary systems. For instance, Virginia Beach went from approximately $35 million a year in urban funding to zero dollars in the current fiscal year. If these funds are not replaced, traffic conditions will continue to deteriorate on the local street network and the quality of life and the timely movement of people, goods and services will also be negatively impacted. Page 27 \ " ,'111 he r "', 'J ttj II 1'1 I 22. STATE LEGISLATION THAT WOULD ENABLE LOCALITIES TO HAVE A CHOICE BETWEEN PROVIDING NEW EMPLOYEES WITH A DEFINED BENEFIT RETIREMENT PLAN OR A DEFINED CONTRIBUTION RETIREMENT PLAN Council Member Glenn Davis Background: The City of Virginia Beach's employees participate in the defined benefit retirement plan that is offered by Virginia Retirement System ("VRS"). This defined benefit retirement plan is based on a formula that includes age at retirement, average final compensation, and years of service to calculate a retiree's benefit, but the benefit is not based upon accumulated contributions and gains or losses in each member's account; Every two years VRS actuarially computes the annual required rates of contributions for the City of Virginia Beach, as a separately rated employer, based upon an actuarial valuation of the retirement allowances and other defined benefits payable on behalf of active Virginia Beach employees in VRS. The valuation includes actual service and disability retirements, assumptions on life spans, disability rates, and turnover of the workforce. The City of Virginia Beach contributes both the employee portion (5%) as well as the employer portion of the contributions. Current combined rates for the employer and employee portion of VRS rates totals 16.48% of total covered payroll, and is paid entirely by the City of Virginia Beach. This rate has increased substantially since Virginia Beach joined VRS in 1963, when the total rate was 10%. In addition, this rate is expected to increase further to compensate [or market losses incurred by VRS. Currently, an employee becomes vested in his or her VRS defined benefit account after five years of service. When a vested employee leaves City of Virginia Beach employment prior to retirement, the employee has two options: (1) maintain the VRS account to be accessed at retirement based on VRS formulas; or (2) seek a refund ofthe 5% employee contributions; In a defined contribution plan: . individual employee accounts would be maintained, and in creating the plan a cap on the contributions either by individual employees or by aggregate cost can be imposed, thereby eliminating uncertainty about the City of Virginia Beach's future benefits obligation and reducing the uncertainty associated with the fluctuation in employer contributions under the current VRS defined benefit plan; . the benefit would be based upon the contributions, plus or minus any gains or losses in each employee's individual account. Accordingly, the amount of the City's employer contribution would not change due to losses or gains in the employee accounts; . a defined contribution plan could provide employees with substantially more control over their investment options; . employees can be immediately vested in the assets contained in their individual accounts; Page 28 \'f :',j l;' 'I . the assets have greater portability and allow increased options for employees who may leave City employment prior to retirement, including the potential capability of rolling over funds into a 401(k), 401(a), government 457, or IRA. Request: The City of Virginia Beach urges the General Assembly to amend the Code of Virginia to enable localities to have a choice between providing new employees with the current defined benefit retirement plan or a new defined contribution retirement plan to be administered by VRS; and that the new defined contribution retirement plan should be fully portable. Other localities have begun offering this to their employees, and Virginia localities should be able to offer similar benefits. In addition, the financial issues faced by VRS are burdensome. Page 29 \',ll, i 1'1 CITY OF VIRGINIA BEACH 2010 FUNDING ITEMS The City Council of Virginia Beach recognizes the Commonwealth, as well as the City, are facing very difficult and trying fiscal realities. Nevertheless, the City Council is including these requests for funding to the Commonwealth for non-state agencies, as well as State responsibilities that are underfunded. Many of these requests are long standing, others are new; all merit funding by the Commonwealth when resources are available. Page 30 .,. i \{ i ~ j II "I 1. SUPPORT FOR INCREASED FUNDING FOR THE GOVERNOR'S OPPORTUNITY FUND Warren Harris Department Director Department of Economic Development Background Information: The General Assembly has for many years had a line item in the budget appropriating funds for the Governor's Opportunity Fund (GOF). This fund, also known as the "Deal-Closing" Fund, provides loans and grants to political subdivisions for economic development purposes. These can be used for public or private utility extensions, capacity development for on or off site railroad or other transportation costs, site acquisition, training, etc. The City of Virginia Beach has used the GOF over the last five years to leverage over $237 million in new capital investment. This investment created over 2,392 high paying jobs. Over the years, this fund has continued to shrink, to less than $15 million for the entire State of Virginia. As other states have created, and robustly funded similar programs, the Commonwealth of Virginia has continued to cut this program, thus handicapping our state's economic development efforts. Request: The General Assembly is requested to increase, by at least 100%, the amount of funds appropriated to the Governor's Opportunity Fund or "Deal-Closing" Fund. This will allow jurisdictions like Virginia Beach to leverage local and private dollars to facilitate economic development growth within the Commonwealth. Over the years the leveraging of these funds will generate significant new revenues for the Commonwealth. Page 31 ';' Jh,:r }.^_^ ,;1 2. FUNDING FOR THE VIRGINIA TOURISM CORPORATION Jim Rickets Department Director Convention and Visitors Bureau Background Information: The tourism industry plays an integral role in the Commonwealth's economy. Travelers spent $18.7 billion, which generated $1.2 billion in State and local tax revenue in 2007. This spending accounts for over 210,000 jobs in Virginia. The City of Virginia Beach is greatly concerned over recent discussions regarding the possible further reductions of the budget for the Virginia Tourism Corporation (VTC). The VTC budget has already decreased over the past five years where many of our direct competitor States have increased their marketing budget. Further budget cuts would have a serious negative impact on tourism and its related tax revenue. It's important to note that the general fund dollars devoted to VTC making those efforts unlike most other State expenditures since they generate a strong return on investment yielding a $5.00 return for every dollar invested. Request: The City of Virginia Beach encourages the General Assembly to preserve and enhance, when possible, the Virginia Tourism Corporation's current budget and further develop a long-term sustainable funding source for their marketing budget in order to protect this vital industry. Page 32 Hi' II 3. CONTINUED FUNDING FOR BRAC EFFORT James K. Spore City Manager City of Virginia Beach Background Information: The City of Virginia Beach and the Commonwealth of Virginia have been partnering to address the concerns raised by the Base Realignment and Closure Commission (BRAC) in 2005. As required by the BRAC Commission, this partnership has included cost-sharing of a $15 million annual purchase of property in the Accident Potential Zones NAS Oceana. In the current biennium, the City has been successful in receiving a grant for $7.5 million per year from the Virginia National Defense Industrial Authority through its Military Strategic Response Fund Appropriations. The General Assembly has appropriated substantial funds to this organization which is used to address BRAC issues. The City will continue its effort of spending $7.5 million per year and requests that the General Assembly continue provide a matching amount as required by the BRAC Commission. Our partnership to date has been recognized as a leading effort nationally to protect and preserve a major military asset. Request: Request that the General Assembly provide funds either directly to the City of Virginia Beach for the BRAC Compliance Plan in the amount of $7.5 million per year over the biennium or to direct that those funds flow through the Military Strategic Response Fund of the Virginia National Defense Industrial Authority. Providing these funds will continue to send a strong message to the U.S. Navy that the Commonwealth and City of Virginia Beach are serious about preserving NAS Oceana and complying with the conditions imposed by the BRAC Commission. Page 33 APPENDIX: DRAFTS OF PROPOSED LEGISLATION - KEYED TO REQUESTED CODE CHANGES Page 34 I LEGISLATIVE ITEM 1 FOLLOWING Too CLOSELY Council Member Bill DeSteph ~46.2-816. Followinl! too c1oselv. The driver of a motor vehicle shall not follow another motor vehicle, bicycle, trailer, or semitrailer more closely than is reasonable and prudent, having due regard to the speed of both vehicles and the traffic on, and conditions of, the highway at the time. Page 35 ! '; II I LEGISLA TIVE ITEM 2 PASSING BICYCLES Council Member Bill DeSteph ~46.2-839. Passing bicycle, electric personal assistive mobility device, electric power- assisted bicycle, moped, animal, or animal-drawn vehicle. Any driver of any vehicle overtaking a bicycle, electric personal assistive mobility device, electric power-assisted bicycle, moped, animal, or animal-drawn vehicle proceeding in the same direction shall pass at a reasonable speed at least {we three feet to the left of the overtaken bicycle, electric personal assistive mobility device, electric power-assisted bicycle, moped, animal, or animal-drawn vehicle and shall not again proceed to the right side of the highway until safely clear of such overtaken bicycle, electric personal assistive mobility device, electric power-assisted bicycle, moped, animal, or animal-drawn vehicle. Page 36 '''.!'p~t.'(l''H'~(T '"j) ...~lli}U ,II 11 LEGISLA TlVE ITEM 5 ADMISSIBILITY OF SOUND METER CALIBRATION CERTIFICATES Chief A.M Jacocks Department of Police s s : Determining certificate as to accuracy of Sound Level Meter device. The noise/sound that is generated may be determined by the use of a Sound Level Meter device. The results of such determinations shall be accepted as rebuttable evidence of the decibel measurement of the noise/sound in any court or legal proceeding where noise/sound is at issue. In any court or legal proceeding in which any question arises about the calibration or accuracy of any Sound Level Meter decibel reading, a celiificate, or a tme copy thereof~ executed and signed under oath by the inspector calibrating or testing such device as to its accuracy and stating the date of such test and results of such testing, shall be admissible when attestecl by one such inspector who executed and signed it as evidence of the facts therein stated and the results of such testing. S2.2-1112. Standardization of materials, equipment and supplies. So far as practicable, all materials, equipment and supplies, purchased by or for the officers, departments, agencies or institutions of the Commonwealth, shall be standardized by the Division, and no variation shall be allowed from any established standard without the written approval of the Division. The standard shall be determined upon the needs of all using agencies, so far as their needs are in common, and for groups of using agencies or single using agencies so far as their needs differ. When changes or alterations in equipment are necessary in order to permit the application of any standard, the changes and alterations shall be made as rapidly as possible. The Division shall determine the proper equipment or electrical devices used to monitor the speed of any motor vehicle pursuant to S46.2-882 and shall so advise the respective law- enforcement officials. Police chiefs and sheriffs shall ensure that all such equipment and devices meet or exceed the standards established by the Division. This provision shall apply only to equipment and devices purchased on or after July 1, 1986. The Division shall determine the proper equipment used to measure noise/sound pursuant to ~ and shall so advise the respective law-enforcement officials. Police chiefs and sheriffs shall ensure that all such equipment and devices meet or exceed the standards established by the Division. This provision shall only apply to equipment and devices purchased on or after July I, 1986. Page 37 " (:1 pl'~ 111. " \; ;i l , I LEGISLATIVE ITEM 6 AUTHORITY TO AMEND PHOTO-MONITORING SYSTEM PROCESSING Chief A.M Jacocks Department of Police ~15.2-968.1. Use of photo-monitoring systems to enforce traffic light signals (Note: Only Sections G and H are provided) G. A summons for a violation of this section may be executed pursuant to S 19.2-76.2. Notwithstanding the provisions of S 19.2-76, a summons for a violation of this section may be executed by mailing by first class mail a copy thereof to the owner, lessee, or renter of the vehicle. In the case of a vehicle owner, the copy shall be mailed to the address contained in the records of the Department of Motor Vehicles; in the case of a vehicle lessee or renter, the copy shall be mailed to the address contained in the records of the lessor or renter. Every such mailing shall include, in addition to the summons, a notice of (i) the summoned person's ability to rebut the presumption that he was the operator of the vehicle at the time of the alleged violation through the filing of an affidavit as provided in subsection D and (ii) instructions for filing such affidavit, including the address to which the affidavit is to be sent. If the summoned person fails to appear on the date of return set out in the summons mailed pursuant to this section, the summons shall be executed in the manner set out in S 19.2-76.3. No proceedings for contempt or arrest of a person summoned by mailing shall be instituted for failure to appear on the return date of the summons. Any summons executed for a violation of this section shall provide to the person summoned at least @ 30 business days from the mailing of the summons to inspect information collected by a traffic light signal violation monitoring system in connection with the violation. H. Information collected by a traffic light signal violation monitoring system installed and operated pursuant to subsection A shall be limited exclusively to that information that is necessary for the enforcement of traffic light violations. On behalf of a locality, a private entity may not obtain record~; regarding the regdered o\vnen; of vehicle~; that fail to comply with traffic light signal~;. Notwithstanding any other provision of law, all photographs, microphotographs, electronic images, or other personal information collected by a traffic light signal violation monitoring system shall be used exclusively for enforcing traffic light violations and shall not (i) be open to the public; (ii) be sold or used for sales, solicitation, or marketing purposes; (iii) be disclosed to any other entity except as may be necessary for the enforcement of a traffic light violation or to a vehicle owner or operator as part of a challenge to the violation; or (iv) be used in a court in a pending action or proceeding unless the action or proceeding relates to a violation of SS46.2-833, 46.2-835, or 46.2-836 or requested upon order from a court of competent jurisdiction. Information collected under this section pertaining to a specific violation shall be purged and not retained later than 60 days after the collection of any civil penalties. If a locality does not execute a summons for a violation of this section within ~ 15 business days, all information collected pertaining to that suspected violation shall be purged within two business days. Any locality operating a traffic light signal violation monitoring system shall annually certify compliance with this section and make all records pertaining to such system available for inspection and audit by the Commonwealth Transportation Commissioner or the Commissioner of the Department of Page 38 I Motor Vehicles or his designee. Any person who discloses personal information in violation of the provisions of this subsection shall be subject to a civil penalty of $1 ,000. Page 39 \\1' ili'! "I II LEGISLA TIVE ITEM 7 AUTHORITY TO USE PHOTO-MONITORING SYSTEM INFORMATION FOR EMPLOYEE DISCIPLINE PURPOSES Chief A.M Jacocks Department of Police ~15.2-968.1. Use of photo-monitoring systems to enforce traffic light signals A. The governing body of any county, city, or town may provide by ordinance for the establishment of a traffic signal enforcement program imposing monetary liability on the operator of a motor vehicle for failure to comply with traffic light signals in such locality in accordance with the provisions of this section. Each such locality may install and operate traffic light signal photo-monitoring systems at no more than one intersection for every 10,000 residents within each county, city, or town at anyone time, provided, however, that within planning District 8, each such locality may install and operate traffic light signal photo-monitoring systems at no more than 10 intersections, or at no more than one intersection for every 10,000 residents within each county, city, or town, whichever is greater, at anyone time. B. The operator of a vehicle shall be liable for a monetary penalty imposed pursuant to this section if such vehicle is found, as evidenced by information obtained from a traffic light signal violation monitoring system, to have failed to comply with a traffic light signal within such locality. C. Proof of a violation of this section shall be evidenced by information obtained from a traffic light signal violation monitoring system authorized pursuant to this section. A certificate, sworn to or affirmed by a law-enforcement officer employed by a locality authorized to impose penalties pursuant to this section, or a facsimile thereof, based upon inspection of photographs, microphotographs, videotape, or other recorded images produced by a traffic light signal violation monitoring system, shall be prima facie evidence of the facts contained therein. Any photographs, microphotographs, videotape, or other recorded images evidencing such a violation shall be available for inspection in any proceeding to adjudicate the liability for such violation pursuant to an ordinance adopted pursuant to this section. D. In the prosecution for a violation of any local ordinance adopted as provided in this section, prima facie evidence that the vehicle described in the summons issued pursuant to this section was operated in violation of such ordinance, together with proof that the defendant was at the time of such violation the owner, lessee, or renter of the vehicle, shall constitute in evidence a rebuttable presumption that such owner, lessee, or renter of the vehicle was the person who committed the violation. Such presumption shall be rebutted if the owner, lessee, or renter of the vehicle (i) files an affidavit by regular mail with the clerk of the general district court that he was not the operator of the vehicle at the time of the alleged violation or (ii) testifies in open court under oath that he was not the operator of the vehicle at the time of the alleged violation. Such presumption shall also be rebutted if a certified copy of a police report, showing that the vehicle had been reported to the police as Page 40 )'l , I stolen prior to the time of the alleged violation of this section, is presented, prior to the return date established on the summons issued pursuant to this section, to the court adjudicating the alleged violation. E. For purposes of this section, "owner" means the registered owner of such vehicle on record with the Department of Motor Vehicles. For purposes of this section, "traffic light signal violation monitoring system" means a vehicle sensor installed to work in conjunction with a traffic light that automatically produces two or more photographs, two or more microphotographs, video, or other recorded images of each vehicle at the time it is used or operated in violation of S 46.2-833, 46.2-835, or 46.2-836. For each such vehicle, at least one recorded image shall be of the vehicle before it has illegally entered the intersection, and at least one recorded image shall be of the same vehicle after it has illegally entered that intersection. F. Imposition of a penalty pursuant to this section shall not be deemed a conviction as an operator and shall not be made part of the operating record of the person upon whom such liability is imposed, nor shall it be used for insurance purposes in the provision of motor vehicle insurance coverage. No monetary penalty imposed under this section shall exceed $50, nor shall it include court costs. G. A summons for a violation of this section may be executed pursuant to S 19.2-76.2. Notwithstanding the provisions of S 19.2-76, a summons for a violation of this section may be executed by mailing by first class mail a copy thereof to the owner, lessee, or renter of the vehicle. In the case of a vehicle owner, the copy shall be mailed to the address contained in the records of the Department of Motor Vehicles; in the case of a vehicle lessee or renter, the copy shall be mailed to the address contained in the records of the lessor or renter. Every such mailing shall include, in addition to the summons, a notice of (i) the summoned person's ability to rebut the presumption that he was the operator of the vehicle at the time of the alleged violation through the filing of an affidavit as provided in subsection D and (ii) instructions for filing such affidavit, including the address to which the affidavit is to be sent. If the summoned person fails to appear on the date of return set out in the summons mailed pursuant to this section, the summons shall be executed in the manner set out in S 19.2-76.3. No proceedings for contempt or arrest of a person summoned by mailing shall be instituted for failure to appear on the return date of the summons. Any summons executed for a violation of this section shall provide to the person summoned at least 60 business days from the mailing of the summons to inspect information collected by a traffic light signal violation monitoring system in connection with the violation. H. Information collected by a traffic light signal violation monitoring system installed and operated pursuant to subsection A shall be limited exclusively to that information that is necessary for the enforcement of traffic light violations. On behalf of a locality, a private entity may not obtain records regarding the registered owners of vehicles that fail to comply with traffic light signals. Notwithstanding any other provision of law, all photographs, microphotographs, electronic images, or other personal information collected by a traffic light signal violation monitoring system shall be used exclusively for enforcing traffic light violations and shall not (i) be open to the public; (ii) be sold or used for sales, solicitation, or marketing purposes; (iii) be disclosed to any other entity except as may be necessary for the enforcement of a traffic light violation or to a vehicle owner or operator as part of a challenge Page 41 \ j j \ I ; I 1'1 to the violation; or (iv) be used in a court in a pending action or proceeding unless the action or proceeding relates to a violation of S 46.2-833, 46.2-835, or 46.2-836 or requested upon order from a court of competent jurisdiction. Information collected under this section pertaining to a specific violation shall be purged and not retained later than 60 days after the collection of any civil penalties. If a locality does not execute a summons for a violation of this section within 10 business days, all information collected pertaining to that suspected violation shall be purged within two business days. Any locality operating a traffic light signal violation monitoring system shall annually certify compliance with this section and make all records pertaining to such system available for inspection and audit by the Commonwealth Transportation Commissioner or the Commissioner of the Department of Motor Vehicles or his designee. Any person who discloses personal information in violation of the provisions of this subsection shall be subject to a civil penalty of $1 ,000. I. A private entity may enter into an agreement with a locality to be compensated for providing the traffic light signal violation monitoring system or equipment, and all related support services, to include consulting, operations and administration. However, only a law- enforcement officer employed by a locality may swear to or affirm the certificate required by subsection C. No locality shall enter into an agreement for compensation based on the number of violations or monetary penalties imposed. 1. When selecting potential intersections for a traffic light signal violation monitoring system, a locality shall consider factors such as (i) the accident rate for the intersection, (ii) the rate of red light violations occurring at the intersection (number of violations per number of vehicles), (iii) the difficulty experienced by law-enforcement officers in patrol cars or on foot in apprehending violators, and (iv) the ability of law-enforcement officers to apprehend . violators safely within a reasonable distance from the violation. Localities may consider the risk to pedestrians as a factor, if applicable. A locality shall submit a list of intersections to the Virginia Department of Transportation for final approval. K. Before the implementation of a traffic light signal violation monitoring system at an intersection, the locality shall complete an engineering safety analysis that addresses signal timing and other location-specific safety features. The length of the yellow phase shall be established based on the recommended methodology of the Institute of Transportation Engineers. All traffic light signal violation monitoring systems shall provide a minimum 0.5- second grace period between the time the signal turns red and the time the first violation is recorded. If recommended by the engineering safety analysis, the locality shall make reasonable location-specific safety improvements, including signs and pavement markings. L. Any locality that uses a traffic light signal violation monitoring system shall evaluate the system on a monthly basis to ensure all cameras and traffic signals are functioning properly. Evaluation results shall be made available to the public. M. Any locality that uses a traffic light signal violation monitoring system to enforce traffic light signals shall place conspicuous signs within 500 feet of the intersection approach at which a traffic light signal violation monitoring system is used. There shall be a rebuttable presumption that such signs were in place at the time of the commission of the traffic light signal violation. Page 42 111','.'1.' N. Prior to or coincident with the implementation or expansion of a traffic light signal violation monitoring system, a locality shall conduct a public awareness program, advising the public that the locality is implementing or expanding a traffic light signal violation monitoring system. O. Notwithstanding the provisions of subsection H or any other provisions of this section. if a vehicle depicted in images recorded by a traffic light signal photo-monitoring system is owned. leased. or rented by a county. city. or town. then the county. city. or town may access and use the recorded images and associated information for employee disciplinary purposes. Page 43 ~ . J ~ " 1 ' )'~ ") \ l{ r I II LEGISLA TIVE ITEM 8 CARRYING CONCEALED WEAPONS IN VEHICLES/BuTTERFLY KNIVES Chief A.M Jacocks Department of Police ~18.2-308. Personal protection; carrying concealed weapons; when lawful to carry. A. If any person carries about his person, or in his vehicle, hidden from common observation, (i) any pistol, revolver, or other weapon designed or intended to propel a missile of any kind by action of an explosion of any combustible material; (ii) any dirk, bowie knife, switchblade knife, ballistic knife, butterfly knife, machete, razor, slingshot, spring stick, metal knucks, or blackjack; (iii) any flailing instrument consisting of two or more rigid parts connected in such a manner as to allow them to swing freely, which may be known as a nun chahka, nun chuck, nunchaku, shuriken, or fighting chain; (iv) any disc, of whatever configuration, having at least two points or pointed blades which is designed to be thrown or propelled and which may be known as a throwing star or oriental dart; or (v) any weapon of like kind as those enumerated in this subsection, he shall be guilty of a Class 1 misdemeanor. A second violation of this section or a conviction under this section subsequent to any conviction under any substantially similar ordinance of any county, city, or town shall be punishable as a Class 6 felony, and a third or subsequent such violation shall be punishable as a Class 5 felony. For the purpose of this section, a weapon shall be deemed to be hidden from common observation when it is observable but is of such deceptive appearance as to disguise the weapon's true nature. This section shall not apply to any person who conceals a weapon from common observation by keeping the weapon in a locked container such that the weapon is completely hidden from view. Page 44 Ij; II LEGISLATIVE ITEM 9 DAILY PAWN REPORTS Chief A.M. Jacocks Department of Police ~ 54.1-4010. Daily reports. Every pawnbroker shall prepare a daily report of all goods, articles or things pawned or pledged with him or sold to him that day and shall file such report by noon of the following day with the chief of police or other law-enforcement officer of the county, city or town where his business is conducted designated by the local attorney for the Commonwealth to receive it. The report shall include the pledgor's or seller's name, residence, and driver's license number or other form of identification, and a description of the goods, articles or other things pledged or sold and, unless maintained in electronic format, shall be in writing and clearly legible to any person inspecting it. A pawnbroker may compile and maintain the daily report in an electronic format and, if so maintained, shall file the required daily reports electronically with the appropriate law-enforcement officer through use of a disk, electronic transmission, or any other electronic means of reporting approved by the law-enforcement officer. Any tmvn \vith a population benveen 13,000 and 11,000 locality may by ordinance require a pawnbroker to maintain and file a daily report electronically through the use of a disk, electronic transmission, or any other electronic means of reporting approved by the law- enforcement officer. The Department of State Police shall adopt regulations for the uniform reporting of information required by this section. Any person, firm or corporation violating any of the provisions of this section shall be guilty of a Class 4 misdemeanor. Page 45 'II LEGISLATIVE ITEM 10 ISSUANCE OF A WARRANT IN A DUI CASE BY AN OFFICER BASED ON THE OBSERVATIONS OF THE ARRESTING OFFICER Chief A.M Jacocks Department of Police ~19.2-81. Arrest without warrant authorized in certain cases. The following officers shall have the powers of arrest as provided in this section: 1. Members of the State Police force of the Commonwealth; 2. Sheriffs of the various counties and cities, and their deputies; 3. Members of any county police force or any duly constituted police force of any city or town of the Commonwealth; 4. The Commissioner, members and employees of the Marine Resources Commission granted the power of arrest pursuant to S28.2-900; 5. Regular conservation police officers appointed pursuant to S29.1-200; 6. United States Coast Guard and United States Coast Guard Reserve commissioned, warrant, and petty officers authorized under S29.1-205 to make arrests; 7. The special policemen of the counties as provided by S 15.2-1737, provided such officers are in uniform, or displaying a badge of office; and 8. Conservation officers appointed pursuant to S 1 0.1-115. Such officers may arrest, without a warrant, any person who commits any crime in the presence of the officer and any person whom he has reasonable grounds or probable cause to suspect of having committed a felony not in his presence. Any such officer may arrest without a warrant any person whom the officer has probable cause to suspect of operating in his presence either a vehicle while intoxicated in violation of 18.2-266, 18.2-266.1, 18.2-272, or 46.2-341.24; or a watercraft or motor boat (i) while intoxicated in violation of subsection B of S29.1-738 or (ii) in violation of an order issued pursuant to S29.1-738.4,; in his preSCllCC, una may thereafter transfer custody of the person suspected of the violation to another officer, who may obtain a warrant based upon statements made to him by the arresting officer. Page 46 '.\'1 Any such officer may, at the scene of any accident involving a motor vehicle, watercraft as defined in S29 .1-712 or motorboat, or at any hospital or medical facility to which any person involved in such accident has been transported, or in the apprehension of any person charged with the theft of any motor vehicle, on any of the highways or waters of the Commonwealth, upon reasonable grounds to believe, based upon personal investigation, including information obtained from eyewitnesses, that a crime has been committed by any person then and there present, apprehend such person without a warrant of arrest. In addition, such officer may, within three hours of the occurrence of any such accident involving a motor vehicle, arrest without a warrant at any location any person whom the officer has probable cause to suspect of driving or operating such motor vehicle while intoxicated in violation of S 18.2-266, 18.2- 266.1, 46.2-341.24, 18.2-272, or a substantially similar ordinance of any county, city, or town in the Commonwealth. Page 47 ~ L '( ^'" j 1 1 II - ~ ' ! I' 1;1 LEGISLATIVE ITEM 11 PROCESSING PRIOR TO RELEASE ON RECOGNIZANCE BONDS Chief A.M Jacocks Department of Police ~19.2-123. Release of accused on bond. (Note: Only Section 4 is provided) 4. Impose any other condition deemed reasonably necessary to assure appearance as required, and to assure his good behavior pending trial, including a condition requiring that the person return to custody after specified hours or be placed on home electronic incarceration pursuant to S 5 3. I-I 3 1. 2. Upon completion of processing required under this title and satisfaction of the terms of recognizance, the accused shall be released forthwith. In addition, where the accused is a resident of a state trammg center for the mentally retarded, the judicial officer may place the person in the custody of the director of the state facility, if the director agrees to accept custody. Such director is hereby authorized to take custody of such person and to maintain him at the training center prior to a trial or hearing under such circumstances as will reasonably assure the appearance of the accused for the trial or hearing. Page 48 \\1'1, ., ,'I\il') 'II LEGISLATIVE ITEM 12 CIVIL PENALTIES FOR VIOLATIONS OF SEWER USE/FATS, OILS AND GREASE (FOG) ORDINANCES Thomas M Leahy, 111 Department Director Department of Public Utilities ~ 15.2-2122. Localities authorized to establish, etc., sewage disposal system; incidental powers. (a) F or the purpose of providing relief from pollution, and for the improvement of conditions affecting the public health, and in addition to other powers conferred by law, any locality shall have power and authority to: 1. Establish, construct, improve, enlarge, operate and maintain a sewage disposal system with all the necessary sewers, conduits, pipelines, pumping and ventilating stations, treatment plants and works, and other plants, structures, boats, conveyances and other real and personal property necessary for the operation of such system, subject to the approvals required by S 62.1-44.19. 2. Acquire as permitted by S 15.2-1800, real estate, or rights or easements therein, necessary or convenient for the establishment, enlargement, maintenance or operation of such sewage disposal system and the property, in whole or in part, of any private or public service corporation operating a sewage disposal system or chartered for the purpose of acquiring or operating such a system, including its lands, plants, works, buildings, machinery, pipes, mains and all appurtenances thereto and its contracts, easements, rights and franchises, including its franchise to be a corporation, and have the right to dispose of property so acquired no longer necessary for the use of such system. However, any locality condemning property hereunder shall rest under obligation to furnish sewage service, at appropriate rates, to the customers of any corporation whose property is condemned. 3. Borrow money for the purpose of establishing, constructing, improving and enlarging the sewage disposal system and to issue bonds therefor in the name of the locality. 4. Accept gifts or grants of real or personal property, money, material, labor or supplies for the establishment and operation of such sewage disposal system and make and perform such agreements or contracts as may be necessary or convenient in connection with the procuring or acceptance of such gifts or grants. 5. Enter on any lands, waters and premises for the purpose of making surveys, borings, soundings and examinations for constructing and operating the sewage disposal system, and for the prevention of pollution. 6. Enter into contracts with the United States of America, or any department or agency thereof, or any person, firm or corporation, or the governing body of any other locality, providing for or relating to the treatment and disposal of sewage and industrial wastes. Page 49 \il1lj 'I: II 11 7. Fix, charge and collect fees or other charges for the use and services of the sewage disposal system; and, except in counties which are not otherwise authorized, require the connection of premises with facilities provided for sewage disposal services. Water and sewer connection fees established by any locality shall be fair and reasonable. Such fees shall be reviewed by the locality periodically and shall be adjusted, if necessary, to assure that they continue to be fair and reasonable. Nothing herein shall affect existing contracts with bondholders which are in conflict with any of the foregoing provisions. 8. Finance in whole or in part the cost of establishing, constructing, improving or enlarging the sewage disposal systems authorized to be established, constructed, improved or enlarged by this section, in advance of putting such systems in operation. 9. Fix, charge and collect fees and other charges for the use and services of sanitary, combined and storm water sewers operated and maintained by any locality. Such fees and charges may be fixed and collected in accordance with and subject to the provisions of S 15.2-2119. (b) Any locality under an order of the Virginia Department of Environmental Quality issued pursuant to the authority of Section 62.1-44.15 (8A) shall, in addition to any other powers or authority conferred by this section or by any other general or special law, may adopt an ordinance establishing a uniform schedule of civil penalties for violations of specified provisions of ordinance governing the introduction ofpollutants and wastes into the locality's public sewer system. The schedule of civil penalties shall be uniform for each type of specified violation, and the penalty for anyone violation shall be a civil penalty of not more than $100 for the initial summons and not more than $150 for each additional summons. Each day during which the violation is found to have existed shall constitute a separate violation; provided, however, that a series of specified violations arising from the same operative set of facts shall not result in civil penalties exceeding a total of $3,000. Such penalties shall be paid into the treasury of the locality for the purpose of abating, preventing or mitigating environmental pollution. The locality's director of public utilities or his designee may issue a civil summons ticket for a scheduled violation. Any person summoned or issued a ticket for a scheduled violation may make an appearance in person or in writing by mail to the treasurer of the locality prior to the date fixed for trial in court. Any person so appearing may enter a waiver of trial, admit liability, and pay the civil penalty establishedfor the offense charged. If a person charged with a scheduled violation does not elect to enter a waiver of trial and admit liability, the violation shall be tried in the general district court in the same manner and with the same right of appeal as provided for by law. In any trial for a scheduled violation, the locality shall have the burden of proving by a preponderance of the evidence the liability of the alleged violator. An admission of liability or finding of liability under this section shall not be deemed an admission at a criminal proceeding. No civil action authorized under this section shall proceed while a criminal action is pending. Page 50 \ 11 , I LEGISLATIVE ITEM 18 OWNERSHIP OF STATE-OWNED BOTTOMLANDS AFTER PLACEMENT OF FILL Mark D. Stiles City Attorney City Attorney's Office ~28.2-1200.1. Conveyance of state-owned bottomlands. A. In order to fulfill the Commonwealth's responsibility under Article XI of the Constitution of Virginia to conserve and protect public lands for the benefit of the people, the Commonwealth shall not convey fee simple title to state-owned bottomlands covered by waters. However, the Commonwealth may grant a lease, easement, or other limited interest in state-owned bottomlands covered by waters pursuant to S28.2-1208 or as long as the property is used by a governmental entity for the performance of a governmental activity, as defined in SS28.2-1300 and 28.2-1400. B. The Commonwealth may convey fee simple title to specified parcels of state-owned bottomlands that have been lawfully filled. For the purpose of this section, "lawfully filled" means the deposit of fill was (i) authorized by statute, (ii) pursuant to valid court order, (iii) authorized or permitted by state officials pursuant to statutory authority subsequent to July 1, 1960, or (iv) under apparent color of authority prior to July 1, 1960. In the absence of information to the contrary, it may be presumed that state-owned bottomlands filled prior to July 1, 1960, were filled under apparent color of authority and, it may also be presumed, that all of the fill on the specified parcel was lawfully authorized if a substantial portion of the fill on such parcel was authorized. Properties not qualified under clauses (i) through (iv) of this subsection shall not be eligible for conveyance under this section. Except as provided herein, no person or entity, including a governmental entity, shall acquire the fee simple title to any state-owned bottomlands that have been filled, nor shall the Commonwealth be divested of any title to or interest in any such bottomlands except by its express consent. C. Except as provided in subsection D, the grantee shall compensate the Commonwealth in an amount commensurate with the property interest being conveyed, which shall be considered equivalent to 25 percent of the assessed value of the specified parcel, exclusive of any buildings or other improvements. The assessed value shall be established as the average of the local real estate tax assessments for the most recent 10 years available for the specified parcel. If no such assessments are available for the specified parcel, then the assessed value shall be calculated as the percentage, by square footage or acreage, that the specified parcel represents of the larger parcel for which such assessments are available. D. If the Commission determines that unique circumstances exist, the Commission may allow the grantee to compensate the Commonwealth in an amount less than 25 percent of the assessed value of the specified parcel. Any such determination by the Commission shall be justified in writing and shall not be subject to judicial review. 2. That the provisions of this act are declarative of existing law. Page 51 1'1 LEGISLATIVE ITEM 19 TECHNICAL AMENDMENT REGARDING VOTING REQUIRED FOR BOARD OF ZONING ApPEALS' ACTIONS Mark D. Stiles City Attorney City Attorney's Office ~15.2-2312. Procedure to Perfect aD Appeal. The board shall fix a reasonable time for the hearing of an application or appeal, give public notice thereof as well as due notice to the parties in interest and make its decision within ninety days of the filing of the application or appeal. In exercising its powers the board may reverse or affirm, wholly or partly, or may modify, an order, requirement, decision or determination appealed from. The concurring vote of a majority-of those present and voting the membership of the board shall be necessary to reverse any order, requirement, decision or determination of an administrative officer or to decide in favor of the applicant on any matter upon which it is required to pass under the ordinance or to effect any variance from the ordinance. The board shall keep minutes of its proceedings and other official actions which shall be filed in the office of the board and shall be public records. The chairman of the board, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses. Page 52 ii:>cr .,.~ i I il 1'1 - 53 - Item V-K.8. ORDINANCES/RESOLUTIONS ITEM # 59238 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED: Resolution to REQUEST the Secretary of the Navy name a Littoral Combat Ship after the City of Virginia Beach (USS Virginia Beach) and REQUEST support of same by the City's local Congressional Delegation. (REQUESTED BY VICE MAYOR SESSOMS/COUNCIL LAD Y WILSON) 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 September 22, 2009 I 1'1 REQUESTED BY MAYOR SESSOMS I COUNCIL LADY ROSEMARY WILSON 1 A RESOLUTION REQUESTING THE SECRETARY OF THE 2 NAVY TO NAME A LITTORAL COMBAT SHIP (LCS) 3 AFTER THE CITY OF VIRGINIA BEACH AND 4 REQUESTING THE VIRGINIA BEACH CONGRESSIONAL 5 DELEGATION TO ASSIST IN THE SAME 6 7 WHEREAS, the Littoral Combat Ship (LCS) is the newest class of naval vessels; 8 9 WHEREAS, these are multipurpose vessels, whose missions are able to be 10 tailored to contingencies because of modules that can be loaded aboard these vessels; 11 12 WHEREAS, three of the vessels have been commissioned and the three vessels 13 are the USS Freedom (LCS 1), USS Independence (LCS 2), USS Fort Worth (LCS 3) 14 and the named but not commissioned USS Coronado (LCS 4); 15 16 WHEREAS, this class of vessels is being named for cities; 17 18 WHEREAS, Virginia Beach has been a tremendous supporter of the military, 19 particularly the Navy, for many years because of its being home to Little Creek 20 Amphibious Base, Fort Story, Annex to Little Creek Amphibious Base, Naval Station 21 Oceana and Dam Neck Annex to Naval Station Oceana; 22 23 WHEREAS, several of these vessels are anticipated to be homeported at Little 24 Creek Amphibious Base; and 25 26 WHEREAS, the Virginia Beach Military Economic Development Advisory 27 Committee (MEDAC) has endorsed the naming of a Littoral Combat Ship for Virginia 28 Beach. 29 30 NOW THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 31 VIRGINIA BEACH, VIRGINIA: 32 33 That the Secretary of the Navy be requested to name one of the new Littoral 34 Combat Ships as USS Virginia Beach, and also that the Congressional Delegation to 35 the City be requested to assist in this endeavor. 36 37 Adopted by the City Council of the City of Virginia Beach, Virginia, this 22nd 38 day of September ,2009. APPROVED AS TO LEGAL SUFFICIENCY: . c5=r APPROVED AS TO CONTENT: CA 11284 R-2 September 14, 2009 'I - 54 - Item V-K.9. ORDINANCES/RESOLUTIONS ITEM # 59239 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED: Resolution to AUTHORIZE the City Manager to execute all necessary agreements for an allocation of $1,000,000 through the VDOT Revenue Sharing Program to Nimmo Parkway - Phase V-A. 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 September 22, 2009 I, ill 1 A RESOLUTION TO AUTHORIZE AN APPLICATION FOR 2 PROJECT MATCHING FUNDS UNDER THE VDOT 3 REVENUE SHARING PROGRAM FOR THE NIMMO 4 PARKWAY - PHASE V-A PROJECT 5 6 7 WHEREAS, the City of Virginia Beach desires to submit an application for an 8 allocation of funds of up to $1,000,000 through the Virginia Department of 9 Transportation (VDOT) Fiscal Year 2009-10 Revenue Sharing Program; and 10 11 WHEREAS, $1,000,000 of VDOT funds are requested to fund improvements as 12 described in CIP #2-121, Nimmo Parkway - Phase V-A. 13 14 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 15 VIRGINIA BEACH, VIRGINIA THAT: 16 17 1. The City Council hereby supports the application for an allocation of 18 $1,000,000 through the VDOT Revenue Sharing Program to CIP #2-121, Nimmo 19 Parkway - Phase V-A. 20 21 2. The City Manager is hereby authorized to execute on behalf of the City of 22 Virginia Beach all necessary agreements for project development and construction. Adopted by the Council of the City of Virginia Beach, Virginia on the 22nd day of September ,2009. APPROVED AS TO CONTENT: ~~~~ APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: ~{)otj.tt:- CA11286 R-2 September 9,2009 :1P--\. ~~ ~~~ ~o$ C'~ ~)-~ ~ <~<> II III Q~ ~4. ~o cP N W+E S <o~ ~o ~ ~~~ ~Q ~b . ~r.o <v~ ~\C"..J ~ 4.~ '~.,.. O~. '~" ;.(. '~ fa ?( . ~Vt-- ..,~ ' OQ~ ~~~ ~ ~ 'f/ ,)-~ ~C 1 . A ~~ O~~~ ~1'~ ~~.o OOlt, ~J"~ O(l~~ t)~ q,~ ~O ~~ Legend City Property_ ~ d\,>. ~ 0r ~ "~> 'Il( ~ ,lIJ -. .)i, r UJ' "~"" ,Jill:. W'N\1~re'~5$r_p; ; EXIST. NIMMO PKWY,~:. . PROP. NIMMO PKwY. ...\ d ~ Q: ~ ~ 0: .~Q) . ,'.~ t-'....., ' ,)' C'1). r ~ ~ a ~ f;) :\~ t.... A.Q (0, <VV 4t '( Ii S- iL,?" Q ;", {':'i1S..~ -I' r:,.~ "hi:". . !Y ~": tQ ,~ CIP - 2-121 NIMMO PKWY. PHASE V-A SCALE: 1" = 1800' , I - 55 - Item V-K.I0. ORDINANCES/RESOLUTIONS ITEM # 59240 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED: Resolution to A UTHORIZE and DIRECT the City Manager to execute an Agreement with Hampton Roads Sanitation District (HRSD) for the relocation of the Witch duck-Kempsville Road force main. 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 September 22, 2009 I 1'1 1 A RESOLUTION AUTHORIZING AND DIRECTING THE CITY 2 MANAGER TO EXECUTE AN AGREEMENT WITH HAMPTON 3 ROADS SANITATION DISTRICT FOR THE RELOCATION OF 4 THE WITCHDUCK-KEMPSVILLE ROAD FORCE MAIN 5 6 7 WHEREAS, the City intends to construct the Princess Anne Road/Kempsville 8 Road Intersection Improvements as part of Capital Improvement Project #2-048 (the 9 "Project"); and 10 11 WHEREAS, the Hampton Roads Sanitation District Witchduck-Kempsville Road 12 Force Main (the "HRSD Force Main") is located, in whole or in part, within the right-of- 13 way of Witchd uck Road; and 14 15 WHEREAS, the proposed improvements contemplated by the Project create a 16 conflict with the HRSD Force Main; and 17 18 WHEREAS, the project will be funded under the Virginia Department of 19 Transportation (VDOT) Urban Construction Initiative and administered and managed by 20 the City; and 21 22 WHEREAS, the City and HRSD agree it is in the best interest of the parties to 23 have the relocation of the Facilities included in the Project; and 24 25 WHEREAS, subject to the approval of the City Council, the City and HRSD have 26 agreed upon the terms of an agreement, entitled "AGREEMENT FOR THE PAYMENT 27 OF COSTS OF CONSTRUCTION AND RELOCATION OF THE WITCH DUCK - 28 KEMPSVILLE ROAD FORCE MAIN SSF 121 & SSF 198" (the "Agreement"), pertaining 29 to the relocation of the HRSD Force Main under the terms and conditions set forth 30 therein; and 31 32 WHEREAS, the City Council hereby deems the Agreement to be fair and 33 reasonable and in the best interests of the City of Virginia Beach; 34 35 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY 36 OF VIRGINIA BEACH, VIRGINIA: 37 38 That the City Council hereby approves, and the City Manager is hereby 39 authorized and directed to execute on behalf of the City, the "AGREEMENT FOR THE 40 PAYMENT OF COSTS OF CONSTRUCTION AND RELOCATION OF THE 41 WITCHDUCK - KEMPSVILLE ROAD FORCE MAIN SSF 121 & SSF 198, the material i i ;i ~ 42 43 44 45 46 terms of which are summarized in the Summary of Material Terms attached hereto, and a copy of which is on file in the City Attorney's Office. of Adopted by the City Council of the City of Virginia Beach on the 22nd September ,2009. day Approved as to Content: Approved as to Legal Sufficiency: ))JkiJ JtI flb~j, City Attorney's Office Approved as to Content: CA-11279 September 8, 2009 R-1 2 II "1 WITCHDUCK- KEMPSVILLE ROAD FORCE MAIN RELOCATION AGREEMENT Summary of Material Terms Parties: City and Hampton Roads Sanitation District (HRSD) Subject: Costs of relocating HRSD's Witchduck-Kempsville Road Force Main (due to City's Princess Anne Road/Kempsville Road Intersection Improvements (CIP Project #2-048) Project: City to construct 2,300 linear feet +/- of 20-inch & 24-inch wastewater force main beginning at the existing HRSD force main located on Witchduck Road near the intersection of Bonney Road Cost: City to pay cost of work, but CIP Project is funded under the (VDOT) Urban Construction Initiative Contractor: City awards work & must comply with Public Procurement Act Other: HRSD to retain ownership of facilities upon completion of work .~~::::.,:" L~-11d" ~""'c~~;-.. ; 4/ '1 iC~,~,l ~F': ~ E~!~=li'~:.....:/~:::~("=; "E::Ji -HP!-,_.' . r. '.""'" ~""'-"_: ' , , .j ~,"~t~?- i :~~~:.~.:"_~~_""(., ,c HRSD Forcemain~1kl-:iV;{,~:>:- ~, t-.. ..' .''''-<", -'~/;!lJ;F '. '-~l:~ ';~:~':\:\~'i;>'" ~, C) """, ~. /itJ' ~. $ ..., ~ if CO "ATTACHMENT A" PRINCESSANNE ROAD-KEMPSVILLE ROAD INTERSECTION IMPROVEMENTS CITY OF VIRGINIA BEACH CIP 2-048 o , 600 . 'iI , /,~" / '>...L~" t. ( 1 :2tO~;///t ~'- I Feet '/l:::-l '- y" .', '7.,.,..}r;~~:'~t"L-...iA'-:\. ,;..... II III N ..,..'" W/~E; . 'St~~' , .. ~J!!:''<~' "/~~~-' , ~,~-' -~ ' 0~::.:~~ ';'~.... '< .tJ( ~-P:.... e..~ -41i' ,~ ..." -, -, 1tt.~ ! "'-, "c... I 1''''''"", :l:-~ ..~..,. 4:>." ~R, Pr<>,,<>r<>rl hv PW /I=nn /1="{1 S'lnnnrt SArvil"'p!>. R'JrA~IJ !=l/101O!=l X'\Proiects\ARC Files\Aaenda Maos\PA Kemosville\PA Kemosville Force Main,mxd I, I' - 56 - L. PLANNING ITEM # 59241 J.COASTAL LIVING BUILDERS, LLCI WILIAM T. KILEY and HELEN R. PAXTON VARIANCE 2. LOLA L. MORRIS MODIFICATION OF CONDITIONS (APPROVED ON JUNE 8, 1987) 3. NEW CINGULAR WIRELESS PCS, LLC CONDITIONAL USE PERMIT (TIA AT & T) 4. VIRGINIA BEACH SCHOOL BOARD CONDITIONAL USE PERMIT 5. ROBERT ARNOLD CONDITIONAL USE PERMIT 6. WILLIAM E. and MONA D. GRAINER CONDITOINAL USE PERMIT September 22, 2009 , I - 57 - Item V-L. PLANNING ITEM # 59242 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council APPROVED in ONE MOTION Items 1 (DEFERRED), 2, 3, 4, 5 (CONDITION NO.4 REVISED) and 6 of PLANNING BY CONSENT AGENDA. Item No. I (COASTAL LIVING BUILDERS, L.L.C./WILLIAM T. KILEY & HELEN R. PAXTON) shall be DEFERRED until the City Council Session of October 27, 2009) , Item No.5 (ROBERT ARNOLD), Condition No.4 re acreage shall be revised: "J(} 18.54 acres of proposed Parcel I containing the western-most portion of the site. Voting: I 1-0 (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 September 22, 2009 i I - 58 - Item V-L.1. PLANNING ITEM # 59243 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council DEFERRED TO OCTOBER 27, 2009, Variance to 94.4(b) of the Subdivision Ordinance that requires all newly created lots meet the requirements of the City Zoning Ordinance (CZO) for COASTAL LIVING BUILDERS, L.L.C./WILLIAM T. KILEY & HELEN R. PAXTON to resubdivide thefour (4) lots into two parcels for the development of two singlejamily dwellings at 800 Greensboro Avenue. Variance to 94.4(b) of the Subdivision Ordinance that requires all newly created lots meet the requirements of the City Zoning Ordinance (CZO) for COASTAL LIVING BUILDERS, L.L.C./WILLIAM T. KILEY & HELEN R. PAXTON to resubdivide the four (4) lots into two parcels for the development of two singlejamily dwellings at 800 Greensboro (GPIN: 2417916180000)DISTRICT6 - BEACH 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 September 22, 2009 '[ "I - 59 - Item V-L.2. PLANNING ITEM # 59244 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council, ADOPTED an Ordinance upon application of LOLA L. MORRIS for Modification of Conditions (previously approved by City Council on June 8, 1987) to allow additional low-intensity businesses at 3725 West Stratford Road. ORDINANCE UPON APPLICATION OF LOLA L. MORRIS FOR MODIFICATION OF CONDITIONS (PREVIOUSLY APPROVED BY CITY COUNCIL ON JUNE 8, 1987) TO ALLOW ADDITIONAL LOW- INTENSITY BUSINESSES AT 3725 WEST STRATFORD ROAD. BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of LOLA L. MORRIS for Modification of Conditions (previously approved by City Council on June 8, 1987) to allow additional low-intensity businesses at 3725 West Stratford Road. (GPIN #:14893940570000) DISTRICT 4 - BA YSIDE The following condition shall be required: 1. An Agreement encompassing proffers shall be recorded with the Clerk of Circuit Court and is hereby made a part of the record. 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 September 22, 2009 'I "I CITY OF VIRGINIA BEACH INTER-OFFICE CORRESPONDENCE In Reply Refer To Our File No. DF-7544 DATE: September 10, 2009 FROM: Mark D. Stile~~~ B. Kay Wilso~ DEPT: City Attorney DEPT: City Attorney TO: RE: Conditional Zoning Application; Lola L. Morris The above-referenced conditional zoning application is scheduled to be heard by the City Council on September 22, 2009. I have reviewed the subject proffer agreement, dated July 21,2009 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 II ,'I FIRST AMENDMENT TO PROFFERED COVENANTS AND CONDITIONS LOLA L. MORRIS TO PROFFERED (COVENANTS AND CONDITIONS) CITY OF VIRGINIA BEACH THIS AGREEMENT, made this 21ST day of July, 2009, by and between LOLA L. MORRIS, Grantor; and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, Grantee. WITNESSETH: WHEREAS, the Grantor is the owner of that certain property located in the Bayside District of the City of Virginia Beach, Virginia, containing a total of approximately 6,769 square feet as more particularly described in Exhibit "I: attached hereto and incorporated herein by reference, which parcel is referred to herein as the ''PropertY'; and WHEREAS, the Grantor has initiated a modification to a conditional amendment to the Zoning Map of the City of Virginia Beach, by petition addressed to the Grantee so as to modify conditions to the Zoning Classification of the Property; and WHEREAS, the Grantor has requested Grantee to permit this modification of the previously proffered Covenants and Conditions dated June 8, 1987 (hereinafter "1987 Proffers'), to reflect amendments applicable to the land use plan on the Property; and WHEREAS, the Grantee's policy is to provide only for the orderly development of land for various purposes through zoning and other land development legislation; and WHEREAS, the Grantor acknowledges that the competing and sometimes incompatible development of various types of uses conflict and that in order to permit differing types of uses on and in the area of the Property and at the same time to recognize the effects of change that will be created by the proposed modification of conditions to the zoning, certain reasonable conditions governing the use of the Property for the protection of the community that are not generally applicable to land similarly zoned are needed to resolve the situation to which the application gives rise; and GPIN: 1489-39-4057 PREPARED BY & RETURN TO: SYKES, BOURDON, AHERN & LEVY, P.C. PEMBROKE ONE BUILDING, THE FIFTH FLOOR VIRGINIA BEACH, VIRGINIA 23462 1 ,'I II 011 WHEREAS, the Grantor has voluntarily proffered, in writing, in advance of and prior to the public hearing before the Grantee, as a part of the proposed modification to the existing zoning conditions with respect to the Property, the following reasonable conditions related to the physical development, operation, and use of the Property to be adopted, which conditions have a reasonable relation to the proposed modification and the need for which is generated by the proposed modification. NOW, THEREFORE, the Grantor, its successors, personal representatives, assigns, grantees, and other ~uccessors in title or interest, voluntarily and without any requirement by or exaction from the Grantee or its governing body and without any element of compulsion or quid pro quo for zoning, rezoning, site plan, building permit, or subdivision approval, hereby makes the following declaration of conditions and restrictions which shall restrict and govern the physical development, operation, and use of the Property and hereby covenants and agrees that this declaration shall constitute covenants running with the Property, which shall be binding upon the Property and upon all parties and persons claiming under or through the Grantor, its successors, personal representatives, assigns, grantees, and other successors in interest or title: 1. The proffer in the 1987 Proffers that provides, 'The property shall be used solely for interior design operation purposes as an extension of the grantors' current interior design business' is amended to read, 'The property shall be used solely for an art gallery; business studio; office; florist; gift shop; interior design business; stationery store; laboratory and establishment for the production and repair of eye glasses, hearing aids or prosthetic devices; medical laboratory or dental laboratory:' 2. All of the terms, conditions, covenants, servitudes and agreements set forth in the 1987 Proffers recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 2661, at Page 1817, save and except, the proffer specifically amended and modified herein, shall remain in force and effect, running with the Property and binding upon the Property and upon all parties and persons claiming under, by or through the Grantor, its heirs, personal representatives, assigns, tenants, and other successors in interest or title. The Grantor further covenants and agrees that: All references hereinabove to the B-2 District and to the requirements and regulations applicable thereto refer to the Comprehensive Zoning Ordinance and 2 II II Subdivision Ordinance of the City of Virginia Beach, Virginia, in force as of the date of approval of this Agreement by City Council, which are by this reference incorporated herein. The above conditions, having been proffered by the Grantor and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, shall continue in full force and effect until a subsequent amendment changes the zoning of the Property and specifically repeals such conditions. Such conditions shall continue despite a subsequent amendment to the Zoning Ordinance even if the subsequent amendment is part of a comprehensive implementation of a new or substantially revised Zoning Ordinance until specifically repealed. The conditions, however, may be repealed, amended, or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and executed by the record owner of the Property at the time of recordation of such instrument, provided that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of an ordinance or a resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee which was advertised pursuant to the provisions of Section 15.2-2204 of the Code of Virginia, 1950, as amended. Said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent, and if not so recorded, said instrument shall be void. (1) The Zoning Administrator of the City of Virginia Beach, Virginia, shall be vested with all necessary authority, on behalf of the governing body of the City of Virginia 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 3 II "I (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 II WITNESS the following signature and seal: Grantor: ~,~ ~~~~~ Lola L. Morr~ (SEAL) STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to wit: The foregoing instrument was acknowledged before me this 21st day of July, 2009, by Lola L. Morris, Grantor. My Commission Expires: Notary Registration No.: qAlw/J. ~ Notary Public C1 \?o\l z... \q\~l<1 5 II iii EXHIBIT "A" Legal Description For Proffer Modification ALL THAT certain lot, piece or parcel of land, with the buildings and improvements thereon, lying, situate and being in the City of Virginia Beach, Virginia, and being known, numbered and designated as Lot 3, Block 33, as shown on that certain plat entitled ''Section B of Ocean Parl<', which plat is duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 5, at page 137. IT BEING a portion of the property conveyed to Lola L. Morris, married, by deed of assumption from Jackie L. Morris and Lola L. Morris, husband and wife, dated April 30, 1992, and recorded June 8, 1992, in the aforesaid Clerk's Office in Deed Book 3095, at page 1099. 6 III - 60- Item V-L.3. PLANNING ITEM # 59245 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council, ADOPTED Ordinance upon Application of NEW CINGULAR WIRELESS PCS, LLC (T/A AT&T) for a Conditional Use Permit re a communication tower at 6009 Blackwater Road ORDINANCE UPON APPLICATION OF NEW CINGULAR WIRELESS PCS, LLC (T/A AT&T) FOR A CONDITIONAL USE PERMIT RE A COMMUNICATION TOWER AT 6009 BLACKWATER ROAD R090935369 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Application of NEW CINGULAR WIRELESS PCS, LLC (T/A AT&T) for a Conditional Use Permit re a communication tower at 6009 Blackwater Road (GP IN#: 13982135880000) DISTRICT 7 - PRINCESS ANNE The following conditions shall be required: 1. The site shall be developed substantially in accordance with the submitted development plans entitled "AT&T Indian Creek Road, Site #NF325A, 6009 Blackwater Road, Virginia Beach, Virginia 23457", prepared by BC Architects and Engineers and dated 4/30/08. Said plans have been exhibited to the Virginia Beach City Council and are onfile in the Virginia Beach Department of Planning. 2. The proposed tower shall not exceed one hundred forty-five (145) feet in overall height. 3. In the event interference with any City emergency communications facilities arises from the user(s) of this tower, the user(s) shall take all measures reasonably necessary to correct and eliminate the interference. If the interference cannot be eliminated within a reasonable time, the user shall cease operation to the extent necessary to stop the interference. 4. In the event that antennas on the tower and/or the tower are inactive for a period of one (1) year, the tower shall be removed at the applicant's expense. 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 Twenty-second of September, Two Thousand Nine September 22, 2009 II ,'I - 61 - Item V-L.3. PLANNING ITEM # 59245 (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 September 22, 2009 II ,II - 62- Item V-LA. PLANNING ITEM # 59246 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED an Ordinance upon application of VIRGINIA BEACH SCHOOL BOARD for a Conditional Use Permit re wind energy conversion system (freestanding) at 1677 Harpers Road. ORDINANCE APPLICATION OF VIRGINIA BEACH SCHOOL BOARD FOR A CONDITIONAL USE PERMIT RE WIND ENERGY CONVERSION SYSTEM (FREESTANDING R090935370 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of VIRGINIA BEACH SCHOOL BOARD for a Conditional Use Permit re wind energy conversion system (freestanding) at 1677 Harpers Road. (GPIN#: 245874809) DISTRICT 6 - BEACH DISTRICT The following conditions shall be required: 1. The four (4) Wind Energy Conversion System units shall be located on the site in the location indicated on the submitted site plan entitled "Conditional Use Permit Wind Energy Conversion Systems Site Plan, Pupil Transportation Maintenance Facility, at Harpers Road Virginia Beach City Public Schools, Sheet CUP-1, "dated 08/07/09. 2. Each of the four (4) Wind Energy Conversion System units shall be of the type and meet the specifications indicated on the submitted plan entitled "Electrical Wind Turbine Details, Pupil Transportation Maintenance Facility at Harpers Road, Virginia Beach City Public Schools, Sheet E0004, " dated 01/11/09. 3. As specified in Section 209(d) of the City Zoning Ordinance, the WECS, including all associated equipment, shall be inspected every two (2) years to ensure compliance with the provisions of Section 209 and the conditions of this Use Permit. Said report shall be submitted to the Planning Director and the first report shall be submitted prior to two (2) years after City Council's approval of this Use Permit. 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 Twenty-second of September, Two Thousand Nine September 22, 2009 II iil - 63 - Item V-L.4. PLANNING ITEM # 59246 (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 September 22, 2009 II - 64- Item V-L.5. PLANNING ITEM # 59247 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED, with Revised Condition No.4, an Ordinance upon application of ROBERT ARNOLD for a Conditional Use Permit re alternative residential development at Blackwater Road and Shirley Landing Drive: ORDINANCE UPON APPLICATION OF ROBERT ARNOLD FOR A CONDITIONAL USE PERMIT RE ALTERNATIVE RESIDENTIAL DEVELOPMENT AT BLACKWATER ROAD AND SHIRLEY LANDING DRIVE R090935371 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of ROBERT ARNOLD for a Conditional Use Permit re alternative residential development at Blackwater Road and Shirley Landing Drive (GPIN# 1398129745). DISTRICT 7 - PRINCESS ANNE DISTRICT The following conditions shall be required: 1. The final plat shall depict the three proposed parcels as depicted on the plan entitled "Preliminary Subdivision Plan of Parcel Number (GP IN) 1398-12-9745, " prepared by Mel Smith & Associates, dated May 22, 2009. 2. The ingress/egress for the entire thirty-seven (37) acres shall be limited to two (2) points along Blackwater Road. Easements necessary to provide legal shared access shall be included and depicted on the final plat. 3. As required by the Rural Development Guidelines set forth in the City of Virginia Beach Comprehensive Plan, afifty (50)100t wide, vegetative buffer shall be installed as depicted on the plan referenced in Condition 1 above. The first twenty-jive (25) feet of said buffer, closest to the adjacent agricultural field, shall be planted with a mixture of grasses and low growing indigenous shrubs. The second twenty-jive (25) feet of said buffer shall be planted with a double row of trees with a minimum caliper of one and one-half (llh) inches and should be centered no more than thirty (30) feet on center. These trees shall be indigenous and consist of a mixture of twenty-five (25) percent deciduous and seventy-five (75) percent evergreen. A Landscape Plan shall be submitted with the final plat to the Development Services Center for review and approval prior to the recordation of the final plat. 4. As a means of preserving and avoiding fragmentation of productive farmland, a legal instrument, acceptable to the City Attorney's Office, shall be recorded in order to set aside, in perpetuity, a portion of the thirty-seven (37)-acre site for agricultural and open space uses. Said instrument shall be recorded prior to, or in conjunction with, the final plat and shall include a minimum ofJO 18.54 acres of proposed Parcell containing the western-most portion of the site. 5. In order to ensure a continued sense of rural character, the architectural design of the proposed single1amily dwellings shall reflect the rural vernacular style. Elevations shall be submitted to the Planning Director for review and approval prior to the issuance of a building permit. September 22, 2009 'I 'I - 65 - Item V-L.5. PLANNING ITEM # 59247 (Continued) 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 Twenty-second of September, 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 Council Members Absent: None September 22, 2009 'I 'I - 66- Item V-L.6. PLANNING ITEM # 59248 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED an Ordinance upon Application of WILLIAM E. and MONA D. GRAINGER for a Conditional Use Permit re a bulk storage yard at 2432 Bowland Parkway. ORDINANCE UPON APPLICATION OF WILLIAM E. AND MONA D. GRAINGER FOR A CONDITIONAL USE PERMIT RE A BULK STORAGE YARD AT 2432 BOWLAND PARKWAY R090935373 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Application of WILLIAM E. and MONA D. GRAINGER for a Conditional Use Permit re a bulk storage yard at 2432 Bowland Parkway (GPIN #14968936840000) DISTRICT 6 - BEACH DISTRICT The following conditions shall be required: 1. The site and landscaping shall be developed in substantial conformance with the submitted site plan entitled, "Conditional Use Permit Exhibitfor Cast Stone, Inc. Bulk Storage Yard" by NDL L.L.c. and dated May 8,2009. The plan has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Planning Department. 2. The storage yard shall have Category VI screening along the north, east and south sides of the proposed yard except for necessary openings for ingress and egress and except where the yard is located directly adjacent to a building. 3. No outdoor storage of parts, equipment or vehicles that are in a state of obvious disrepair shall be permitted. 4. The bulk storage yard shall consist of at least six (6)-inches of aggregate stone and shall be delineated with curb stops or some other City-approved material to contain the aggregate on the site. 5. All trees located within the proposed tree preservation easement area, as identified on the site plan described in the above Condition 1, shall not be removed, destroyed or damaged. If trees within this area are damaged or removed by natural causes, the applicant must submit a landscape plan to the Planning Department/Development Service Center for review and approval by the Planning Director or his designee. 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 Twenty-second of September, Two Thousand Nine September 22, 2009 ,II 'I 'I - 67 - Item V-L. 6. PLANNING ITEM # 59248 (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 September 22, 2009 ill ill - 68 - Item V.M.1. APPOINTMENTS ITEM # 59249 Upon NOMINATION by Vice Mayor Jones, City Council: REAPPOINTED: Bart Frye 4 year term October 1,2009 - September 30,2013 APPOINTED: Arnold Dawley John Cromwell 4 year term October 1,2009 - September 30,2013 AGRICULTURAL ADVISORY 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 L. Wood Council Members Voting Nay: None Council Members Absent: None September 22, 2009 II "I - 69 - Item V.M.2. APPOINTMENTS ITEM # 59250 Upon NOMINATION by Vice Mayor Jones, City Council APPOINTED: Gary Nelson 5 year term January 1, 2010-December 31,2014 BOARD OF ZONING APPEALS 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 September 22, 2009 II ,I - 70 - Item V.M.3. APPOINTMENTS ITEM # 59251 BY CONSENUS, City Council RESCHEDULED the following APPOINTMENT: CHESAPEAKE BAY PRESERVATION AREA BOARD September 22, 2009 i I 'I - 71 - Item V.M.4. APPOINTMENTS ITEM # 59252 Upon NOMINATION by Vice Mayor Jones, City Council APPOINTED: Paige Crunk Unexpired term thru 03/31/2012 HEALTH SERVICES ADVISORY BOARD 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 September 22, 2009 ,II II 1'1 - 72- Item v.M. 5 APPOINTMENTS ITEM # 59253 Upon NOMINATION by Vice Mayor Jones, City Council APPOINTED: Reba McClanan 2 year term 11/01/2009 -10/31/2011 HISTORICAL REVIEW BOARD 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 September 22, 2009 II ,'I - 73 - Item v.P. ADJOURNMENT ITEM # 59254 Mayor William D. Sessoms, Jr. DECLARED the City Council Meeting ADJOURNED at 6:29 P.M. ~__{!.:)fR~ Beverly 0. Hooks, CMC Chief Deputy City Clerk ~~~ uth Hodges Fraser, MMC ity Clerk William D. Sessoms. Jr. Mayor City of Virginia Beach Virginia September 22,2009 'I "I - 73 - Item v.P. ADJOURNMENT ITEM # 59254 Mayor William D. Sessoms, Jr. DECLARED the City Council Meeting ADJOURNED at 6:29 P.M. a~___(2_t__'&! 4-J Beverly 0. Hooks, CMC Chief Deputy City Clerk Q~~ )u~~ges Fraser, MMC City Clerk ~ Wd ---~------------- --------------- . William D. Sessoms, Jr. Mayor City of Virginia Beach Virginia September 22, 2009