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MARCH 9, 2010
CITY OF VIRGINIA BEACH "COMMUNITY FOR A LIFETIME" CITY COUNCIL j MAYOR WILL/AM D. SESSOMS, JR., At-Large V/('E MAYOR LOUIS R. JONES, Bayside -District ~l IUTA SWEET BELL/TTO, At-Large GLENN R. DAV/S, Rose Hall -District 3 W/LL/AM R. DeSTEPH, At-Large HARRY E. D/EZEL, Kempsville -District 1 ROBERT M DYER, Centerville -District BARBARA M HENLEY, Princess Anne -District 7 JOHN E. UHR/N, Beach -District 6 ROSEMARY W/LSON, At-Large JAMES L. WOOD, Lynnhaven -District S CITY COUNCIL APPOINTEES C/TY MANAGER -JAMES K. SPORE C/TY ATTORNEY -MARK D. ST/LES C/TY ASSESSOR - JERALD BANAGAN CITY AUD/TOR - LYNDON S. REM/AS CITY CLERK - R(/TH HODGES FRASER, MMC CITY COUNCIL AGENDA 9 March 2010 C/TY HALL BUILDING 2401 COURTHOUSE DR/VE VIRGINIA BEACH, VIRG/NIA 23456-8005 PHONE: (757) 385-4303 FAX (757J 385-5669 E-MA/L: Ctycncl@vbgov.com I. CITY COUNCIL BRIEFING: -Conference Room - 3:30 PM 1. LED SIGN SUBCOMMITTEE REPORT Bill Macali, Deputy City Attorney II. CITY MANAGER'S BRIEFING: -Conference Room- 4:00 PM 1. BOND SALES -NEW MONEY and REFUNDING Nancy Leavitt, Debt Administrator, Finance III. CITY COUNCIL LIAISON REPORTS IV. CITY COUNCIL COMMENTS V. CITY COUNCIL AGENDA REVIEW VI. INFORMAL SESSION -Conference Room - A. CALL TO ORDER -Mayor William D. Sessoms, Jr. B. ROLL CALL OF CITY COUNCIL 4:30 PM C. RECESS TO CLOSED SESSION VII. FORMAL SESSION -City Council Chamber - 6:00 PM ~~ A. CALL TO ORDER -Mayor William D. Sessoms, Jr. B. INVOCATION: Reverend Tommy Taylor Pastor, Retired 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 February 23, 2010 G. FORMAL SESSION AGENDA H. MAYOR'S PRESENTATIONS 1. PROCLAMATION -Girl Scouts 98th Birthday 2. RESOLUTION - Bayfront Advisory Committee/Shore Drive Community Coalition 3. RESOLUTION of Recognition and Appreciation I. PUBLIC HEARINGS 1. SPSA Subordinated Revenue Bonds 2. LEASE OF CITY PROPERTY North Landing and West Neck Roads J. CONSENT AGENDA K. ORDINANCES/RESOLUTIONS 1. Ordinance to REPEAL City Code §23-47 and §§26-63 to 23-73 to remain re noise regulations 2. Resolution AUTHORIZING issue and sale of General Obligation Bonds, Series 2010A heretofore authorized on May 12, 2009, in the amount of $60-Million to support future Capital Improvement Projects (CIP) 3. Resolution to AUTHORIZE a Financing Plan with the Virginia Beach Development Authority (VBDA) re refunding $85-Million from earlier Bond issuances and issuing "new money" Bonds in an amount not to exceed $17-Million to fund Economic Development projects and equipment leases 4. Ordinance to AMEND an Exchange Agreement with the U.S. Navy to include a restricted covenant in the Quitclaim Deed for Marshview and AUTHORIZE the City Manager to execute related documents 5. Ordinance to ACCEPT from the Virginia Gentlemen Foundation the construction and dedication of JT's Grommet Park and a donation of artwork to be installed on the Boardwalk near First Street re beach access for the disabled. 6. Ordinance to AUTHORIZE the City Manager to EXECUTE a one (1) year lease with E. R. COCKRELL for farm land at West Neck Road and the future Nimmo Parkway 7. Resolution to SUPPORT the nomination of the Bayfront Advisory Committee and the Shore Drive Community Coalition for the 2010 Governor's Transportation Safety Awards 8. Resolution recognizing a dedicated citizen for more than fifty years of community service 9. Ordinance to APPROPRIATE $1,875,000 from FEMA and $450,000 from the Virginia Department of Emergency Management (VDEM) and TRANSFER $175,000 from Contingency Reserves for recovery expenses associated with Tropical Storm Ida (Nor' easter) L. PLANNING 1. Application of CAPE HENRY STATION, LLC for a Conditional Use Permit re a wind turbine on the roof (WECS) at 2817-2821 Shore Drive. District 5 - LYNNHAVEN RECOMMENDATION APPROVAL 2. Application of WEST NECK PROPERTIES, INC./ROBERT ZIRPOLI for a Conditional Use Permit re anon-commercial community pier (private use) at 1809, 2933 and 2936 Estates Drive (Deferred February 23, 2010). DISTRICT 5 - LYNNHAVEN RECOMMENDATION APPROVAL 3. Application of TOWN CENTER ASSOCIATES, LLC to EXTEND satisfaction of the conditions for twelve (12) months in the closure of a portion of Market Street (approved March 24, 2009) DISTRICT 5 - LYNNHAVEN RECOMMENDATION APPROVAL 4. Applications of CITY OF VIRGINIA BEACH re the City Zoning Ordinance (CZO): a. AMEND §§111, 211, 212 and ADD 211.1 re definition of roadside guide sign RECOMMENDATION RECOMMENDATION RECOMMENDATION APPROVAL b. AMEND by reducing setback requirements for in-ground swimming pools in R-SR Residential Districts near the Atlantic Ocean. APPROVAL c. AMEND § 111 and ADD §217 re requirements for monument and electronic display signs (deferred February 9, 2010) M N. O. P APPOINTMENTS HEALTH SERVICES ADVISORY BOARD HUMAN RIGHTS COMMISSION SENIOR SERVICES OF SOUTHEASTERN VIRGINIA SOCIAL SERVICES BOARD UNFINISHED BUSINESS NEW BUSINESS ADJOURNMENT Defer to March 23, 2010 PUBLIC COMMENT Non-Agenda Items Each Speaker will be allowed 3 minutes and each subject is limited to 3 Speakers FY 2010-2011 Budget Schedule DATE . TIME EVENT .....~.,,....... ., ..~...~ ..., ,~~.., a~ March 23 6:00 PM City Manager Presents Budget March 30 .4:00-6:00 PM Workshop April B __..~. __ 4:00-6:OOPM Workshop Apri113 1 hr before Informal _. Workshop Apri120 4:00-6:00 PM Workshop Apri122 6:00 PM _..... Public Hearing _ . Apri127 __ 1 hr before informal 'Public Hearing Apri127 6:00 PM ~ Public Hearing _~., .... Ma 4 Y... 4:00-6:00 PM _... _..... Workshop ~ May 11 6:OOPM ~ ADOPTION E.UCATION City Council Chamber City Council Conference Room City Council Conference Room City Council Conference Room City Council Conference Room .. .._e~.. _ ...._ Tallwood High School City Council Conference Room ~..e~.. _~._w~ _ _ ____ . ~~ ;City Council Chamber City Council Conference Roorn City Council Chamber CITY C(3UNCIL MID-YEAR RETREAT ****~*~ 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 3/9/lost wwH.vbaov.com I. II. III. IV. V. CITY COUNCIL BRIEFING: -Conference Room - 3:30 PM I. LED SIGN SUBCOMMITTEE REPORT Bill Macali, Deputy City Attorney CITY MANAGER'S BRIEFING: -Conference Room- 4:00 PM 1. BOND SALES -NEW MONEY and REFUNDING Nancy Leavitt, Debt Administrator, Finance CITY COUNCIL LIAISON REPORTS CITY COUNCIL COMMENTS CITY COUNCIL AGENDA REVIEW VI. INFORMAL SESSION -Conference Room - 4:30 PM A. CALL TO ORDER -Mayor William D. Sessoms, Jr. B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION VII. FORMAL SESSION -City Council Chamber - 6:00 PM A. CALL TO ORDER -Mayor William D. Sessoms, Jr. B. INVOCATION: Reverend Tommy Taylor Pastor, Retired 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 February 23, 2010 G. FORMAL SESSION AGENDA ~PSit~llft~lt CERTIFICATION OF CLOSED SESSION VIRGINIA BEACH CITY COUNCIL WHEREAS: The Virginia Beach City Council convened into CLOSED SESSION, pursuant to the affirmative vote recorded here and in accordance with the provisions of The Virginia Freedom of Information Act; and, WHEREAS: Section 2.2-3712 of the Code of Virginia requires a certification by the governing body that such Closed Session was conducted in conformity with Virginia Law. NOW, THEREFORE, $E IT RESOLVED: 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. H. MAYOR'S PRESENTATIONS 1. PROCLAMATION -Girl Scouts 98`h Birthday 2. RESOLUTION - Bayfront Advisory Committee/Shore Drive Community Coalition 3. RESOLUTION of Recognition and Appreciation ~,oC~A~7.coN `WFieseas: 9YlarcH 12, 2010, proudly marks the 98tH anniversary of GirlScouts of the ZJnitedStates ofAmerica, whites was founded 6y,~uliette Gordon Low in 1912 in Savannah, Georgia; and `WHereas: throughout its d~.stinguished History, GirCScouting Has inspired millcons of girls and women with the Highest ideals of courage, confidence, and character,• and `Whereas: through the GirCScout leadership experience, girls develop the skills and lessons they needfor a lifetime, so that they may actively contribute to their communities; and `G'l~tereas: GirlScouting takes an active role in increasing girls' awareness of the opportunities available to them today in mates, science, sports, technology and otHer fields so tHat tHey can expand t(zeir Horizons; and `G1~hereas: more than three million current Girl Scout members, nationwide, will 6e celebrating 98 years of this American tradition alongside nearly SO million former GirlScouts showing Living proof of the impact of the amazing GirCScout movement. Now, ~ierefore, I, ZVilliam <D. Sessoms, ,fir., ~Kayor of the City of Virginia ~eacH, Virginia, do Hereby proclaim: ~I~lctrch T -13 GirCScout ZUeek In Virginia ~eacH, andl encourage all Citizens celebrate the 98th anniversary of the Girl Scouts of the ZJSA, applaud the commitment GirlScouting Has made to support the leadership development ofAmerica's girls and proudly proclaim the weekof ~Karch 7-13 , 2010, as Girl Scout 4Neek. In 'Witness `GVhereof, I Have Hereunto set my Hand and caused the Official Seal of the City of Virginia BeacH, ~irginza, to 6e affz~ed this Seventh day of ~KarcH, Two 2Tiousand Ten. `William <D. Sessoms, fir. JKayor ~Resnluiiun RESOLUTION SUPPORTING THE NOMINATION OF THE BAYFRONT ADVISORY COMMITTEE AND THE SHORE DRIVE COMMUNITY COALITION FOR THE 2010 GOVERNOR'S TRANSPORTATION SAFETYAWARDS WHEREAS: The Shorc Orive Corridor in Virginia Beach is a major part of the City's transportation network supporting well over 20,000 average daily trips over its eleven mile length; WHEREAS: Shore Drive is settled by a large number of single family homes, apartments, condominiums, hotels, retail businesses, the military and industry. The beaches and parks along Shore Drive are major attroctors for the recrcafionol pursuits of residents and visitors; WHEREAS: Shore Drive has experienced a significant number of moor vehicle, bicycle and pedestrian crashes in recent years, often with tragic results; WHEREAS: The Bayfront Advisory Committee and the Shore Drive Community Coalition, established in 2001, has worked diligently and effectively with the City during 1009 to improve traffic safety conditions for all users of Shorc Drive; and, WHEREAS: The eayfront Advisory Committee and the Shorc Drive Community Coalition, through its Shore Drive Safety Initiative '09, did raise substantial public awareness of the need jar all roadway users to exercise alertness, skill, courtesy and sought near, as well as long term, traffic safety Improvements in speed limits, cross walks and bike facilities; NOW, THEREfORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE C/TY OF VIRGINIA BEACH, VIRGINIA: That the Mayor and Members of City Council take great pleasure in nominating the eayjront Advisory Committee and the Shore Drive Community Coalkion for the 2010 Governors Transportation Safety Award in the categories of General Traffic Safety and Bicycle-Pedestrian Safety. BE IT FURTHER RESOLVED: That the Mayor will submit a Nomination Package to the Virginia Board of Transportation Safety within the Commonwealth of Virginia's Department of Motor Vehicles under the guidelines for this Award. Rita Sweet Bellitto - At Large William R. "Bill" DeSteph - At large Robert M. "Bob" Dyer-Centerville District 1 Louis R. Jones - Bayside District 4 - Vlce Mayor Rosemary Wilson - At Large Glenn R. Davis -Rose Hall District 3 Harry E. Okzel - Kempsvilk Distrctt ? Barbaro M. Nenky -Princess Anne District 7 John E. lihrin -Beach District 6 Jarnt : L Jim" Wood - Lynnhaven District S William D. "Will" 5essomi - Mayo~• ~rsnlu#iun WHERFAS: Tommy toe Taylor pave more than Jiffy years ojhls IIJ~e tervlnp /n the Baptist ministry, thirty of which wen of the Senior Pastor of Condon Bridge Baptist Church when he rctlrcd lonuory Tenth, Two Thousand Ten; WHEREAS: Tommy toe Taylor wm born in the coal mining Town ojNorton, Virginia, with humble beplnn/ngs In the /otter years of the Depression of the Thlrtle; he spent lots of time sleddlrrp the wlnd/np roads of Hlph Knob Mountain and Jlrst attended d-urch of the ape oJTen only because The Boptlst Church hod o pY-n; WHEREAS: from the early ape oJTen urKq ht was Twenty, Tommy learned many o /lJe's lesson through dopy dNlvery of the local newspaper M more thou one hundred customers In this mounta/n town. He played Vonlfy Football and Basketball Jbr1. 1. Burton Hlph School !n NoKOn and produated In 1957. He attended pinch Vdhry College jell-N-ne jbr two years whge worklrtp juq.Nme of night to suppoR his Jbmlly and pay jar his own college. Af ter produaNor, at the age oJ23, he become the Pastor of his Just church in Corydon, Indiana, while ottendMg Seminary. He graduated j-orrt Consort-Newman College /n JeffErson pry, Tennessee, w/th o BA !n History /n 1961 and jrom Southern Sem/nary !n Lou/svllk, Kentucky, with o Master of D1Wnity In 1966. AJter Seminary, he become the pastor oJt dwrd- M Fronklhy Mdlona, from 19'66-197 He moved to Louhwllk, Ke-ttudry, and pastored the Shhrtly He/phts BopthK churchlr'om 1971 to 1979 In Aprq 1979, Ae accepted the "coq' to bt tM Senor Poston of London Brldpt Baptist ptutsh M VlrgM/o Beach when Ae served untiringly and joNhJully Jbr more Mon Mlrty year:; WHEREAS: During his Postorote of Co-tdon Brldpe BopNsb the church grew f `an flue hundred to three thousand members. The StaJyprcw jrom three to more Mon Jlfty todov. The Mutti- constructed a 1200-seat Worship Center to replace the 700•seat sanctuary In 1001. More Mon Mlrry men and women have been called front MM church to ju/I-time mM/stry or mlulonary duties. Durlrtp h!s tenuro, Tommy sernd on the Notional Baptist Sunday School Board and oa Me first PresldeM of the SouMero Bapthrt Conservatives of Virginia; and, WHEREAS: Tommy Taylor f dl !n lave and married h!s high schod sweetheart, Phyph Ann Tate some fifty-jour years opo and they hove Mrce children: Mary BeM, Mefanlt and Josh plus flue pronddtlldrcn. NOW, THEREFORE, BE /T RESOLVED: That the VlrplnM Brach CRy Coundl pause !n its dellberoHons to recognise Reverend Tomnryr Joe Tayksr Jbr hh FoIM to accompgsh so mutt y h/s ded/rnNon to h/s bN/ej;, his wiflingness to sern his community and portic/pote Jiequtnt/y over the yeorslbr Me Invocation of this Cky Council and the many untiring, unselfish and dedicated wogs he het contributed to the shaping of so many lives. BE IT FURTHER RESOLVED: That each Member of pry Council aJ/Ixes his or her signature to this Resolution and that It be spread upon the Minutes of th/s Foro-ol Setslon on this NInM day of March, Two Thousand and Ten. Rlto Sweet Bell(tto - At Large WIIBom R. "8111" DeSMph - At 1 erye RobsR M. "Bob" Dyer- Centerv/lk Dlstrkt 1 Louts R. Janes - Bays/de DbtrhY 1 • Vice Mayor Rosemary Wilson - At Large Glenn R. Daub -Rose Holl Dlstrkt 3 Harry E. 9lerel - Kempsvllk Dbtrkt 1 Barbaro M. Honky - Prlncest Anne Olstrkt 7 John f. Uhrln -Beach Obtrkt 6 lames L. "Jim" Wood - L ynnhavcn Dlttrlct 5 William D. 'Will" Stssoms -Mayor PUBLIC HEARINGS I. SPSA Subordinated Revenue Bonds 2. LEASE OF CITY PROPERTY North Landing and West Neck Roads ~'-KG r '~' . R ~i,`~~~ ~ ` .r~~ NOTICE OF PUBLIC HEARING ON PROPOSED GENERAL OBLIGATION GUARANTY BY THE CITY OF VIRGINIA BEACH, VIRGINIA, OF A PORTION OF THE PRINCIPAL OF AND INTEREST ON CERTAIN GUARANTEED SUBORDINATED REVENUE BONDS AND SENIOR SUBORDINATED REVENUE BONDS PREVIOUSLY 18SUED BY THE SOUTHEASTERN PUBLIC- SERVICE AUTHORITY OF VIRGINIA Notice is given that the Council of the City of Virginia Beach, Virginia (the "Council"), will hold a Public Heanng in accordance with Section 15.2-2606 of the Code of Virginia of 1950, as amended, on the proposed several guaranty by the City of Virginia Beach, Virginia (the "City"), of the timely payment of the principal of and Interest on the estimated maximum amount ' of $15,170,000 (of a total of ~an estimated maximum amount of $50,000,000) of guaranteed subordinated revenue bonds and senior subordinated revenue bonds previously issued by the Southeastern Public Service Authority of Virginia ("SPSA") to finance and refinance various capital expenditures of SPSA (the "SPSA Bonds"). Such SPSA Bonds are currentry held by the Virginia Resources Authority and are expected to remain outstanding after the proposed sale of SPSA's RDF Plant and Power Plant to Wheelabrator Technologies, Inc. The guaranty will constitute a general obligation of the City to which the full faith and credft and taxing power of the City will be pledged. The Public Hearing, which may be continued or adjourned, will be held at 8 p.m. on March 9, 2010 in the Council Chamber on the second floor of the City Hall building, Municipal Center, Virginia Beach, Virginia. All interested persons are invited to appear at the time and place aforementioned. If special assistance for the disabled is needed, please call 757-385-4303. Ruth Hodges Fraser, MMC City Clerk VP Feb. 18 & 25, 2010 21066977 !. 7wg1 ,~ iA,' PUBLIC HEARING LEASE OF CITY PROPERTY The Virginia Beach Clty Council will hold a PU6LIC HEA~IVa on the proposed leasing of Clty owned property on Tuesday, March 9, 2010, at 6:00 p.m. in the Council Chamber of the City HaN Building (Building ~1) at the Virginia Beach Municipal Center, Virginia Beach, Virginla~ The purpose of this Hearing will be to obtain public comment on the City's proposal to lease the following property: Approximatey 14.5 acres of farm land located. near the northwest comer of North Landing Road and West Neck Road If you are phyakally dlsabl~d or vlsuaN~r- impaked and neeA asaistartce at this meeting, please call the CITY CLERK'S OFFlCE at 381f 4308; Hearing impaked call TDD ony 71L Any questions concerning this matter should be directed to the Department of, Management , 5ervicea - Facllitiea, Management Office, Room 228, Building 183 at the Virginia Beach Municipal Center. The= Facilities Management Office telephone number is (757)385.5659. Ruth Hodges Fraser, MMC City Clerk Beacon February 28, 2010 21082473 CONSENT AGENDA K. ORDINANCES/RESOLUTIONS 1. Ordinance to REPEAL City Code §23-47 and §§26-63 to 23-73 to remain re noise regulations 2. Resolution AUTHORIZING issue and sale of General Obligation Bonds, Series 2010A heretofore authorized on May 12, 2009, in the amount of $60-Million to support future Capital Improvement Projects (CIP) Resolution to AUTHORIZE a Financing Plan with the Virginia Beach Development Authority (VBDA) re refunding $85-Million from earlier Bond issuances and issuing "new money" Bonds in an amount not to exceed $17-Million to fund Economic Development projects and equipment leases 4. Ordinance to AMEND an Exchange Agreement with the U.S. Navy to include a restricted covenant in the Quitclaim Deed for Marshview and AUTHORIZE the City Manager to execute related documents 5. Ordinance to ACCEPT from the Virginia Gentlemen Foundation the construction and dedication of JT's Grommet Park and a donation of artwork to be installed on the Boardwalk near First Street re beach access for the disabled. 6. Ordinance to AUTHORIZE the City Manager to EXECUTE a one (1) year lease with E. R. COCKRELL for farm land at West Neck Road and the future Nimmo Parkway 7. Resolution to SUPPORT the nomination of the Bayfront Advisory Committee and the Shore Drive Community Coalition for the 2010 Governor's Transportation Safety Awards 8. Resolution recognizing a dedicated citizen for more than fifty years of community service 9. Ordinance to APPROPRIATE $1,875,000 from FEMA and $450,000 from the Virginia Department of Emergency Management (VDEM) and TRANSFER $175,000 from Contingency Reserves for recovery expenses associated with Tropical Storm Ida (Nor' easter) f'"~..~ 1 ~s Zr f~' -s; <~~~ ,~:~ 4~~~`~ ~% CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Repeal Section 23-47 of the City Code Pertaining to Noise MEETING DATE: March 9, 2010 ^ Background: In April 2009, the Supreme Court of Virginia held that City Code § 23-47, which pertains to noise, is unconstitutionally vague. The City appealed that decision to the United States Supreme Court. In May 2009, while the appeal was pending, City Council adopted a new set of Code provisions that regulate noise in a way that is consistent with the Virginia Supreme Court's decision. Recently, the United States Supreme Court issued an order in which it declined to hear the City's appeal of the Virginia Supreme Court case. ^ Considerations: This ordinance repeals City Code § 23-47 but leaves in place the replacement noise regulations that were enacted by City Council in May 2009. Those provisions are codified as City Code §§ 26-63 to 23-73. ^ Public Information: This item will be advertised in the same manner as other agenda items. ^ Attachments: Ordinance Recommended Action: Approval Submitting DepartmentlAgency: City Attorney M,~ City Manager: ~~:~+~~ A , ~~„~,~,~,~ -P~+.. 1 AN ORDINANCE TO REPEAL SECTION 23- 2 47 OF THE CITY CODE PERTAINING TO 3 NOISE 4 5 SECTION REPEALED: § 23-47 6 7 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 8 BEACH, VIRGINIA: 9 10 That Section 23-47 of the Code of the City of Virginia Beach, Virginia, is hereby 11 repealed: 12 13 14 15 16 , 17 ,• 18 19 20 21 22 23 24 25 26 27 , 28 , 29 30 31 32 , 33 34 35 36 37 38 39 40 41 , 42 , 43 • 44 45 Adopted by the City Council of the City of Virginia Beach, Virginia, on this day of , 2010. APPROVED AS TO LEGAL SUFFICIENCY: i~ ' City Attorney's Office CA11449 R-2 March 2, 2010 APPROVED AS TO CONTENT: 5~+~ ti ,Ir~.i~~",', ~{' 4 -~' 'ts3 (~ ~ ~ c~^ t3.i ~`~» ~' CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Resolution of the City of Virginia Beach, Virginia, Providing for the Issuance and Sale of a Series of General Obligation Public Improvement Bonds, Series 2010A, Heretofore Authorized, in the Maximum amount of $60,000,000 and Providing for the Form, Details and Payment Thereof MEETING DATE: March 9. 2010 ^ Background: Based on a review of capital project expenditures and future CIP needs, the Department of Finance has begun preparations for a general obligation new money bond sale in the amount up to $60,000,000. The bond sale is composed of portions of the 2008 and 2009 Charter Bond Authorizations previously approved by Council on May 13, 2008 and May 12, 2009 respectively. The bond proceeds from the proposed sale will reimburse previous expenditures for those authorized projects. Based on current market conditions, the City's Financial Advisor, Government Finance Associates ("GFA"), has recommended that this sale take place on April 6, 2010. It is also GFA's recommendation that the City give its bidders the option of bidding, on amaturity-by-maturity basis, either a tax-exempt rate or a taxable rate under the Build America Bond (BAB) program. This recommendation is based on improvements in the BAB market and the fact that the Parity system, the electronic system used by the City to accept bids, can now accept BAB bids. ^ Considerations: The new money sale represents the City's annual general obligation bond sale. The City's Bond Counsel, Troutman Sanders, has prepared the enclosed resolution authorizing the issuance and sale of the bonds. The bonds will be sold electronically by competitive bid with the actions of the City Manager being conclusive provided however, that the bonds shall have a true interest cost not to exceed 4.5%. The proposed bond structure for the new money takes into consideration the proposed FY-11 debt service budget. ^ Public Information: Public information will be handled through the normal Council agenda process. The original Charter Bond Authorizations were part of the public information process of the City's Resource Management Plan (Budget/CIP). In addition, the Resolution authorizes the distribution of the Preliminary Official Statement for marketing purposes. Also, a Notice of Sale will be placed in The Bond Buyer, a daily newspaper for the tax-exempt bond market. ^ Alternatives: There are no practical alternative funding sources at this time. This request follows previously approved CIPs. ^ Recommendations: Approval of the enclosed resolution providing for the issuance and sale of bonds in the maximum amount of $60 million. ^ Attachment: Resolution Recommended Action: Approval Submitting Depa ent/Agency: Finance ~ ' ~_., City Manager: ~ ~ ' Q' ~~~ RESOLUTION OF THE CITY OF VIRGINIA BEACH, VIRGINIA, PROVIDING FOR THE ISSUANCE AND SALE OF A SERIES OF GENERAL OBLIGATION PUBLIC IMPROVEMENT .BONDS, SERIES 2010A, HERETOFORE AUTHORIZED, IN THE MAXIMUM AMOUNT OF $60,000,000 AND PROVIDING FOR THE FORM, DETAILS AND PAYMENT THEREOF The issuance of $68,700,000 of bonds of the City of Virginia Beach, Virginia (the "City") was authorized by an ordinance adopted by the City Council of the City of Virginia Beach, Virginia (the "City Council") on May 13, 2008, without being submitted to the qualified voters of the City, to finance various public improvements, including schools, roadways, coastal projects, economic and tourism projects, building and parks and recreation projects, $13,143,112 of which have been issued and sold. The issuance of $62,900,000 of bonds of the City was authorized by an ordinance adopted by the City Council on May 12, 2009, without being submitted to the qualified voters of the City, to finance various public improvements, including schools, roadways, coastal projects, economic and tourism projects, building and parks and recreation projects, none of which bonds have been issued and sold. It has been recommended to the City Council by representatives of Government Finance Associates, Inc. (the "Financial Advisor") that the City issue and sell a series of general obligation public improvement bonds in the maximum principal amount of $60,000,000. The City Council has determined it is in the City's best interest to issue and sell $55,556,888 of the bonds authorized on May 13, 2008; and up to $4,443,112 of the bonds authorized on May 12, 2009. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: 1. Issuance of Bonds. There shall be issued, pursuant to the Constitution and statutes of the Commonwealth of Virginia, including the City Charter (Chapter 147 of the Acts of the General Assembly of 1962, as amended) and the Public Finance Act of 1991 (Chapter 26, Title 15.2, Code of Virginia of 1950, as amended), general obligation public improvement bonds of the City in the maximum principal amount of $60,000,000 (the "Bonds"). The proceeds of the Bonds will be used to provide funds to finance, in part, the costs of various public, school, road and highway, coastal, economic and tourism, building and parks and recreation improvements, as more fully described in the ordinances authorizing the Bonds adopted on May 13, 2008 and May 12, 2009 (collectively, the "Project"), and the costs incurred in connection with issuing the Bonds. 2. Bond Details. The Bonds shall be designated "General Obligation Public Improvement Bonds, Series 2010A," or such other designation as may be determined by the City Manager, shall be in registered form, shall be dated such date as may be determined by the City Manager, shall be in denominations of $5,000 and integral multiples thereof and shall be numbered R-1 upward. Subject to Section 8, the issuance and sale of the Bonds are authorized on terms as shall be satisfactory to the City Manager; provided, that the Bonds (a) shall have a "true" or "Canadian" interest cost not to exceed 4.5% (taking into account any original issue discount or premium and any subsidy paid by the federal government), (b) shall be sold to the purchaser thereof at a price not less than par or 100% of the principal amount thereof (without taking into account any original issue discount or premium), (c) shall be subject to optional redemption beginning no later than and continuing after March 15, 2020 at an optional redemption price of no more than 102% of the principal amount to be redeemed plus accrued interest to the optional redemption date, and (d) shall mature annually in installments through serial maturities or mandatory sinking fund payments beginning no later than March 15, 2011, and ending no later than March 15, 2030. Principal of the Bonds shall be payable annually on dates determined by the City Manager. Each Bond shall bear interest at such rate as shall be determined at the time of sale, calculated on the basis of a 360-day year of twelve 30-day months, and payable semiannually on dates determined by the City Manager. Principal shall be payable to the registered owners upon surrender of Bonds as they become due at the office of the Registrar (as hereinafter defined). Interest shall be payable by check or draft mailed to the registered owners at their addresses as they appear on the registration books kept by the Registrar on a date prior to each interest payment date that shall be determined by the City Manager (the "Record Date"). Principal, premium, if any, and interest shall be payable in lawful money of the United States of America. Initially, one Bond certificate for each maturity of the Bonds shall be issued to and registered in the name of The Depository Trust Company, New York, New York ("DTC"), or its nominee. The City has heretofore entered into a Blanket Issuer Letter of Representations relating to a book-entry system to be maintained by DTC with respect to the Bonds. "Securities Depository" shall mean DTC or any other securities depository for the Bonds appointed pursuant to this Section 2. In the event that (a) the Securities Depository determines not to continue to act as the securities depository for the Bonds by giving notice to the Registrar, and the City discharges its responsibilities hereunder, or (b) the City, in its sole discretion, determines (i) that beneficial owners of Bonds shall be able to obtain certificated Bonds or (ii) to select a new Securities Depository, then the City's Director of Finance shall, at the direction of the City, attempt to locate another qualified securities depository to serve as Securities Depository and authenticate and deliver certificated Bonds to the new Securities Depository or its nominee, or authenticate and deliver certificated Bonds to the beneficial owners or to the Securities Depository participants on behalf of beneficial owners substantially in the form provided for in Section 5; provided, that such form shall provide for interest on the Bonds to be payable (A) from the date of the Bonds if they are authenticated prior to the first interest payment date, or (B) from the interest payment date that is or immediately precedes the date on which the Bonds are authenticated (unless payment of interest thereon is in default, in which case interest on such Bonds shall be payable from the date to which interest has been paid). In delivering certificated Bonds, the City's Director of Finance shall be entitled to rely on the records of the Securities Depository as to the beneficial owners or the records of the Securities Depository participants acting on behalf of beneficial owners. Such certificated Bonds will then be registrable, transferable and exchangeable as set forth in Section 7. -2- So long as there is a Securities Depository for the Bonds, (1) it or its nominee shall be the registered owner of the Bonds, (2) notwithstanding anything to the contrary in this Resolution, determinations of persons entitled to payment of principal, premium, if any, and interest, transfers of ownership and exchanges, and receipt of notices shall be the responsibility of the Securities Depository and shall be effected pursuant to rules and procedures established by such Securities Depository, (3) the Registrar and the City shall not be responsible or liable for maintaining, supervising or reviewing the records maintained by the Securities Depository, its participants or persons acting through such participants, (4) references in this Resolution to registered owners of the Bonds shall mean such Securities Depository or its nominee and shall not mean the beneficial owners of the Bonds, and (5) in the event of any inconsistency between the provisions of this Resolution and the provisions of the above-referenced Blanket Issuer Letter of Representations, such provisions of the Blanket Issuer Letter of Representations, except to the extent set forth in this paragraph and the next preceding paragraph, shall control. 3. Redemption Provisions. (a) Optional Redemption. The Bonds shall be subject to redemption prior to maturity at the option of the City Manager, in whole or in part, at any time on and after dates, if any, determined by the City Manager, with the first such optional redemption date beginning no later than March 15, 2020 as set forth in Section 2 at a redemption price equal to the principal amount to be redeemed, together with any interest accrued to the date fixed for redemption, plus a redemption premium not to exceed 2% of the principal amount to be redeemed, such redemption premium to be determined by the City Manager. (b) Mandatory Sinking Fund Redemption. Any term bonds may be subject to mandatory sinking fund redemption upon terms determined by the City Manager. If so determined by the City Manager, the Bonds may provide that the City may take a credit against the mandatory sinking fund redemption obligation of any maturity of term Bonds in the amount of Bonds of the same maturity that have been optionally redeemed or surrendered for cancellation and have not been applied previously as such a credit. If the City wishes to take such a credit, on or before the 70th day next preceding any such mandatory sinking fund redemption date, the City's Director of Finance may instruct the Registrar to apply a credit against the City's mandatory sinking fund redemption obligation for any Bonds of the applicable maturity that have been optionally redeemed or surrendered for cancellation by the City and have not been previously applied as a credit against any mandatory sinking fund redemption obligation for that maturity of the Bonds. Each Bond so previously optionally redeemed or surrendered shall be credited at 100% of the principal amount thereof against the principal amount of such maturity of the Bonds required to be redeemed on such mandatory sinking fund redemption date or dates for such maturity as may be selected by the Director of Finance. (c) Selection of Bonds for Redemption. If less than all of the Bonds are called for optional redemption, the maturities of the Bonds to be redeemed shall be selected by the City's Director of Finance in such manner as may be determined to be in the best interest of the City. If less than all of a particular maturity of the Bonds are called for redemption, the Bonds within such maturity to be redeemed shall be selected by the Securities Depository pursuant to its rules and -3- procedures or, if the book-entry system is discontinued, shall be selected by the Registrar by lot in such manner as the Registrar in its discretion may determine. In either case, (a) the portion of any Bond to be redeemed shall be in the principal amount of $5,000 or some integral multiple thereof and (b) in selecting Bonds for redemption, each Bond shall be considered as representing that number of Bonds that is obtained by dividing the principal amount of such Bond by $5,000. (d) Redemption Notices. The City shall cause notice of the call for redemption identifying the Bonds or portions thereof to be redeemed to be sent by facsimile transmission, registered or certified mail or overnight express delivery, not less than 30 nor more than 60 days prior to the redemption date, to the registered owner of the Bonds. The City shall not be responsible for mailing notice of redemption to anyone other than DTC or another qualified Securities Depository or its nominee unless no qualified Securities Depository is the registered owner of the Bonds. If no qualified Securities Depository is the registered owner of the Bonds, notice of redemption shall be mailed to the registered owners of the Bonds. If a portion of a Bond. is called for redemption, a new Bond in principal amount equal to the unredeemed portion thereof will be issued to the registered owner upon the surrender thereof. 4. Execution and Authentication. The Bonds shall be signed by the manual or facsimile signature of the Mayor or Vice-Mayor, shall be countersigned by the manual or facsimile signature of the City Clerk or Deputy Clerk, and the City's seal shall be affixed thereto or a facsimile thereof printed thereon; provided, that if both of such signatures are facsimiles, no Bond shall be valid until it has been authenticated by the manual signature of the City Treasurer, as Registrar, or an authorized officer or employee of any bank or trust company serving as successor Registrar and the date of authentication noted thereon. 5. Bond Form. The Bonds shall be in substantially the form attached to this Resolution as Exhibit A, with such completions, omissions, insertions and changes not inconsistent with this Resolution as may be approved by the officers signing the Bonds, whose approval shall be evidenced conclusively by the execution and delivery of the Bonds. 6. Pledge of Full Faith and Credit. The full faith and credit of the City are irrevocably pledged for the payment of the principal of, premium, if any, and interest on the Bonds. Unless other funds are lawfully available and appropriated for timely payment of the Bonds, the City Council shall levy and collect an annual ad valorem tax, over and above all other taxes authorized or limited by law and without limitation as to rate or amount, on all locally taxable property in the City sufficient to pay when due the principal of, premium, if any, and interest on the Bonds. 7. Registration, Transfer and Owners of Bonds. The City Treasurer is appointed paying agent and registrar for the Bonds (the "Registrar"). The City may appoint a qualified bank or trust company as successor paying agent and registrar of the Bonds. The Registrar shall maintain registration books for the registration and registration of transfers of the Bonds. Upon presentation and surrender of any Bonds at the office of the Registrar, or at its designated corporate trust office if the Registrar is a bank or trust company, together with an assignment duly executed by the registered owner or his duly authorized attorney or legal representative in such form as shall be satisfactory to the Registrar, the City shall execute, and the -4- Registrar shall authenticate, if required by Section 4, and shall deliver in exchange, a new Bond or Bonds having an equal aggregate principal amount, in authorized denominations, of the same form and maturity, bearing interest at the same rate and registered in the name as requested by the then registered owner thereof or its duly authorized attorney or legal representative. Any such transfer or exchange shall be at the expense of the City, except that the Registrar may charge the person requesting such transfer or exchange the amount of any tax or other governmental charge required to be paid with respect thereto. The Registrar shall treat the registered owner as the person or entity exclusively entitled to payment of principal, premium, if any, and interest and the exercise of all other rights and powers of the owner, except that interest payments shall be made to the person or entity shown as owner on the registration books as of the Record Date. 8. Sale of Bonds. The City Council approves the following terms of the sale of the Bonds. The Bonds shall be sold by competitive bid in a principal amount to be determined by the City Manager, in collaboration with the Financial Advisor, and subject to the limitations set forth in Sections 1 and 2, and the City Manager shall receive bids for the Bonds and award the Bonds to the bidder providing the lowest "true" or "Canadian" interest cost, subject to the limitations set forth in Section 2. Following the sale of the Bonds, the City Manager shall file a certificate with the City Clerk setting forth the final terms of the Bonds. The actions of the City Manager in selling the Bonds shall be conclusive, and no further action with respect to the sale and issuance of the Bonds shall be necessary on the part of the City Council. 9. Notice of Sale; Bid Form. The City Manager, in collaboration with the Financial Advisor, is authorized and directed to take all proper steps to advertise the Bonds for sale substantially in accordance with the forms of the Official Notice of Sale and the Official Bid Form, which forms are attached as an Appendix to the draft of the Preliminary Official Statement described in Section 10 below, and which forms are approved; provided, that the City Manager, in collaboration with the Financial Advisor, may make such changes in the Official Notice of Sale and the Official Bid Form not inconsistent with this Resolution as he may consider to be in the best interest of the City. 10. Official Statement. A draft of a Preliminary Official Statement describing the Bonds, a copy of which has been provided or made available to each member of the City Council, is approved as the form of the Preliminary Official Statement by which the Bonds will be offered for sale, with such completions, omissions, insertions and changes not inconsistent with this Resolution as the City Manager, in collaboration with the Financial Advisor, may consider appropriate. After the Bonds have been sold, the City Manager, in collaboration with the Financial Advisor, shall make such completions, omissions, insertions and changes in the Preliminary Official Statement not inconsistent with this Resolution as are necessary or desirable to complete it as a final Official Statement for the Bond, execution thereof by the City Manager to constitute conclusive evidence of his approval of any such completions, omissions, insertions and changes. The City shall arrange for the delivery to the purchaser of the Bonds of a reasonable number of copies of the final Official Statement by the earlier of seven business days after the Bonds have been sold or the date of issuance thereof, for delivery to each potential investor -5- requesting a copy of the Official Statement and for delivery to each person to whom such purchaser initially sells Bonds. 11. Official Statement Deemed Final. The City Manager is authorized, on behalf of the City, to deem the Preliminary Official Statement and the Official Statement in final form for the Bonds, each to be final as of its date within the meaning of Rule 15c2-12 ("Rule 15c2-12") of the Securities and Exchange Commission (the "SEC"), except for the omission in the Preliminary Official Statement of certain pricing and other information permitted to be omitted pursuant to Rule 15c2-12. The distribution of the Preliminary Official Statement and the Official Statement in final form shall be conclusive evidence that each has been deemed final as of its date by the City, except for the omission in the Preliminary Official Statement of such pricing and other information permitted to be omitted pursuant to Rule 15c2-12. 12. Preparation and Delivery of Bonds. After bids have been received and the Bonds have been awarded to the winning bidder, the officers of the City are authorized and directed to take all proper steps to have the Bonds prepared and executed in accordance with their terms and to deliver the Bonds to the purchaser thereof upon payment therefor. 13. Arbitrage Covenants. The City covenants that it shall not take or omit to take any action the taking or omission of which will cause the Bonds to be "arbitrage bonds" within the meaning of Section 148 of the Internal Revenue Code of 1986, as amended, and regulations issued pursuant thereto (the "Code"), or otherwise cause interest on the Bonds to be includable in the gross income of the registered owners thereof under existing laws. Without limiting the generality of the foregoing, the City shall comply with any provision of law that may require the City at any time to rebate to the United States any part of the earnings derived from the investment of the gross proceeds of the Bonds, unless the City receives an opinion of nationally recognized bond counsel that such compliance is not required to prevent interest on the Bonds from being includable in the gross income of the registered owners thereof under existing law. The City shall pay any such required rebate from its legally available funds. 14. Non-Arbitrage Certificate and Elections. Such officers of the City as may be requested are authorized and directed to execute an appropriate certificate setting forth the reasonably expected use and investment of the proceeds of the Bonds in order to show that such reasonably expected use and investment will not violate the provisions of Section 148 of the Code, and any elections such officers deem desirable regarding rebate of earnings to the United States, for purposes of complying with Section 148 of the Code. Such certificate and elections shall be in such form as may be requested by bond counsel for the City. 15. Limitation on Private Use. The City covenants that it shall not permit the proceeds of the Bonds or the facilities financed or refinanced with the proceeds of the Bonds to be used in any manner that would result in (a) 5% or more of such proceeds or of the facilities financed or refinanced with such proceeds being used in a trade or business carried on by any person other than a governmental unit, as provided in Section 141(b) of the Code, (b) 5% or more of such proceeds or the facilities being financed with such proceeds being used with respect to any output facility (other than a facility for the furnishing of water), within the meaning of Section 141(b)(4) of the Code, or (c) 5% or more of such proceeds being used directly or indirectly to -6- make or finance loans to any person other than a governmental unit, as provided in Section 141(c) of the Code; provided, that if the City receives an opinion of nationally recognized bond counsel that any such covenants need not be complied with to prevent the interest on the Bonds from being includable in the gross income for federal income tax purposes of the registered owners thereof under existing law, the City need not comply with such covenants. 16. Investment Authorization. The City Council hereby authorizes the Director of Finance to direct the City Treasurer to utilize either or both of the State Non-Arbitrage Program of the Commonwealth of Virginia ("SNAP") and the Virginia Arbitrage & Investment Management Program ("AIM") in connection with the investment of the proceeds of the Bonds, if the City Manager and the Director of Finance determine that the utilization of either SNAP or AIM is in the best interest of the City. The City Council acknowledges that the Treasury Board of the Commonwealth of Virginia is not, and shall not be, in any way liable to the City in connection with SNAP, except as otherwise provided in the SNAP Contract. 17. Continuing Disclosure Agreement. The Mayor, the City Manager and such officer or officers of the City as either may designate are hereby authorized and directed to execute and deliver a continuing disclosure agreement setting forth the reports and notices to be filed by the City and containing such covenants as may be necessary to assist the purchaser of the Bonds in complying with the provisions of Rule 15c2-12. Such continuing disclosure agreement shall be substantially in the form attached as an Appendix to the draft of the Preliminary Official Statement described in Section 10 above, which form is approved with such completions, omissions, insertions and changes that are not inconsistent with this Resolution. 18. Build America Bond Authorization. In connection with the issuance of the Bonds, the City Manager is authorized, in consultation with tl~e Financial Advisor, if it is determined to be in the City's best interest to do so, to designate and issue all or any portion of the Bonds as "Build America Bonds" pursuant to the federal American Recovery and Reinvestment Act of 2009, as to which the federal government pays 35% of each interest payment as a direct subsidy to the City. In connection with such determination, the City Manager and the officers of the City are authorized to enter into such covenants and agreements regarding the use, investment- and expenditure of the proceeds of such Build America Bonds as may be requested by bond counsel, and are further authorized make such elections, designations and filings as are necessary or appropriate to issue Build America Bonds, to comply with on-going reporting requirements and to receive interest subsidy payments from the federal government. Notwithstanding other provisions of this Resolution, Bonds issued as Build America Bonds shall be subject to optional redemption, including extraordinary optional redemption, on terms the City Manager, in consultation with the Financial Advisor, shall deem appropriate for such taxable bonds; provided such bonds shall be subject to optional redemption beginning no later than March 15, 2020 and shall contain provisions satisfactory to the City Manager preserving the City's right to redeem such bonds in the event of non-payment of the interest subsidy by the federal government. Redemption provisions for Build America Bonds similar to those contained in the draft of the Preliminary Official Statement provided or made available to Council are hereby approved. 19. Other Actions. All other actions of officers of the City and of the City Council in conformity with the purposes and intent of this Resolution and in furtherance of the issuance and -7- sale of the Bonds are hereby ratified, approved and confirmed. The officers of the City are authorized and directed to execute and deliver all certificates and instruments and to take all such further action as may be considered necessary or desirable in connection with the issuance, sale and delivery of the Bonds. 20. Repeal of Conflicting Resolutions. All resolutions or parts of resolutions in conflict herewith are repealed. 21. Effective Date. This Resolution shall take effect immediately. Exhibit A -Form of Bond -8- Exhibit A -Form of Bond Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (~~DTC"), to the issuer or its agent for registration of transfer, exchange or payment, and this certificate is registered in the name of Cede & Co., or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein. REGISTERED No. R- UNITED STATES OF AMERICA COMMONWEALTH OF VIRGINIA REGISTERED CITY OF VIRGINIA BEACH INTEREST RATE General Obligation Public Improvement Bond Series 2010A MATURITY DATE DATED DATE March 15, 20_ _, 2010 CUSIP 927734 - REGISTERED OWNER: CEDE & CO. PRINCIPAL AMOUNT: DOLLARS The City of Virginia Beach, Virginia (the "City"), for value received, promises to pay, upon surrender hereof to the registered owner hereof, or registered assigns or legal representative, the Principal Amount stated above on the Maturity Date stated above, subject to prior redemption as hereinafter provided, and promises to pay interest hereon from the Dated Date stated above on each March 15 and September 15, beginning September 15, 2010, at the annual Interest Rate stated above, calculated on the basis of a 360-day year of twelve 30-day months. Principal, premium, if any, and interest are payable in lawful money of the United States of America by the City Treasurer, who has been appointed Registrar (the "Registrar"). The City may appoint a qualified bank as successor paying agent and registrar for the bonds. Notwithstanding any other provision hereof, this bond is subject to a book-entry system maintained by The Depository Trust Company ("DTC"), and the payment of principal, premium, if any, and interest, the providing of notices and other matters shall be made as described in the City's Blanket Issuer Letter of Representations to DTC. This bond is one of an issue of $60,000,000 General Obligation Public Improvement Bonds, Series 2010A (the "Bonds"), of like date and tenor, except as to number, denomination, rate of interest, privilege of redemption and maturity, and is issued pursuant to the Constitution and statutes of the Commonwealth of Virginia, including the City Charter and the Public Finance Act of 1991. The Bonds have been authorized by ordinances adopted by the City Council of the City of Virginia Beach (the "City Council") on May 13, 2008 and May 12, 2009, and are being issued pursuant to a resolution adopted by the City Council on March _, 2010 (the "Bond Resolution"), to finance various public, school, road and highway, coastal, economic and tourism, building and parks and recreation improvements and to pay costs of issuance of the Bonds. The Bonds maturing on or before March 15, 2020, are not subject to optional redemption prior to maturity. The Bonds maturing on or after March 15, 2021, are subject to redemption prior to maturity at the option of the City on or after March 15, 2020, in whole or in part at any time (in any multiple of $5,000), upon payment of the following redemption prices (expressed as a percentage of principal amount of the Bonds to be redeemed) plus interest accrued and unpaid to the date fixed for redemption: Period During Which Redeemed Redemption (Both Dates Inclusive) Price The Bonds maturing on 20 ,are required to be redeemed in part before maturity by the City on in the years and amounts set forth below, at a redemption price equal to 100% of the principal amount of the Bonds to be redeemed, plus interest accrued and unpaid to the date fixed for redemption: Year Amount Year Amount The Bond Resolution provides for a credit against the mandatory sinking fund redemption of the Bonds maturing on , 20 in the amount of Bonds of the same maturity that have been optionally redeemed or surrendered for cancellation and have not been applied previously as such a credit. If less than all of the Bonds are called for optional redemption, the maturities of the Bonds to be redeemed shall be selected by the City's Director of Finance in such manner as may be determined to be in the best interest of the City. If less than all the Bonds of a particular maturity are called for redemption, the Bonds within such maturity to be redeemed shall be selected by DTC or any successor securities depository pursuant to its rules and procedures or, if the book entry system is discontinued, shall be selected by the Registrar by lot in such manner as the Registrar in its discretion may determine. In either case, (a) the portion of any Bond to be redeemed shall be in the principal amount of $5,000 or some integral multiple thereof and (b) in selecting Bonds for redemption, each Bond shall be considered as representing that number of Bonds that is obtained by dividing the principal amount of such Bond by $5,000. The City shall cause notice of the call for redemption identifying the Bonds or portions thereof to be redeemed to be sent by facsimile transmission, registered or certified mail or overnight express delivery, not less than 30 nor more than 60 days prior to the redemption date, to DTC or its nominee as the registered owner hereof. If a portion of this bond is called for A-2 redemption, a new Bond in the principal amount of the unredeemed portion hereof will be issued to the registered owner upon surrender hereof. The full faith and credit of the City are irrevocably pledged for the payment of principal of, premium, if any, and interest on this bond. Unless other funds are lawfully available and appropriated for timely payment of this bond, the City Council shall levy and collect an annual ad valorem tax, over and above all other taxes authorized or limited by law and without limitation as to rate or amount, on all taxable property within the City sufficient to pay when due the principal of, premium, if any, and interest on this bond. The Registrar shall treat the registered owner of this bond as the person or entity exclusively entitled to payment of principal of and interest on this bond and the exercise of all other rights and powers of the owner, except that interest payments shall be made to the person or entity shown as the owner on the registration books on the first day of the month preceding each interest payment date. In the event a date for the payment of principal, redemption price, or interest on this bond is not a business day, then payment of principal, redemption price, and interest on, this bond shall be made on the next succeeding day which is a business day, and if made on such next succeeding business day, no additional interest shall accrue for the period after such payment or redemption date. All acts, conditions and things required by the Constitution and statutes of the Commonwealth of Virginia to happen, exist or be performed precedent to and in the issuance of this bond have happened, exist and have been performed, and the issue of Bonds of which this bond is one, together with all other indebtedness of the City, is within every debt and other limit prescribed by the Constitution and statutes of the Commonwealth of Virginia. A-3 IN WITNESS WHEREOF, the City of Virginia Beach, Virginia, has caused this bond to be signed by its Mayor, to be countersigned by its Clerk, its seal to be affixed hereto, and this bond to be dated the Dated Date stated above. COUNTERSIGNED: (SEAL) Clerk, City of Virginia Beach, Virginia Mayor, City of Virginia Beach, Virginia A-4 ASSIGNMENT FOR VALUE RECEIVED the undersigned sell(s), assign(s) and transfer(s) unto: (Please print or type name and address, including postal zip code, of Transferee) PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF TRANSFEREE: the within bond and all rights thereunder, hereby irrevocably constituting and appointing Attorney, to transfer said bond on the books kept for the registration thereof, with full power of substitution in the premises. Dated: Signature Guaranteed: NOTICE: Signature(s) must be guaranteed by an Eligible Guarantor Institution such as a Commercial Bank, Trust Company, Securities Broker/Dealer, Credit Union or Savings Association who is a member of a medallion program approved by The Securities Transfer Association, Inc. (Signature of Registered Owner) NOTICE: The signature above must correspond with the name of the registered owner as it appears on the front of this bond in every particular, without alteration or enlargement or any change whatsoever. A-5 Requires an affirmative vote by a majority of the members of the City Council. Adopted by the City Council of the City of Virginia Beach, Virginia, this day of March, 2010. APPROVED AS TO CONTENT: w Finance Department APPROVED AS TO LEGAL SUFFICIENCY: Ci ey's Office CERTIFICATE The undersigned Clerk of the City Council of the City of Virginia Beach, Virginia (the "City Council"), certifies that: 1. A meeting of the City Council was held on March _, 2010, at the time and place established and noticed by the City Council, at which the members of the City Council were present or absent as noted below. The foregoing Resolution was adopted by a majority of the members of the City Council, by a roll call vote, the ayes and nays being recorded in the minutes of the meeting as shown below: PRESENT/ABSENT: William D. Sessoms, Jr., Mayor / Louis R. Jones, Vice Mayor _ _ / Rita Sweet Bellitto _ _ / Glenn R. Davis _ _ / Bill R. DeSteph _ / Harry E. Diezel _ / Robert M. Dyer _ / Barbara M. Henley / John E. Uhrin _ / Rosemary Wilson / James L. Wood _ / - - / VOTE: 2. The foregoing Resolution is a true and correct copy of such Resolution as adopted on March _, 2010. The foregoing Resolution has not been repealed, revoked, rescinded or amended and is in full force and effect on the date hereof. WITNESS my signature and the seal of the City of Virginia Beach, Virginia, this day of March, 2010. Clerk, City Council of the City of Virginia Beach, Virginia (SEAL) 1923267v2 205182.000135 Richmond0l 1923267v2 205182.000135 ~lU BF~Ct i~~~ t t~ ~4~'';~ CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Resolution Approving a Plan of Financing with the City of Virginia Beach Development Authority, Approving Certain Documents Prepared in connection with Such Financing and Authorizing the Execution and Delivery of the Same MEETING DATE: March 9, 2010 ^ Background: City Council through the Capital Improvement Program and Tax Increment Financing Program has previously authorized the financing of various public facilities with the utilization of Public Facility Revenue Bonds (PFRB) through the Va. Beach Development Authority (VBDA). On four occasions - 2002, 2003, 2005 and 2007 -the Development Authority has issued bonds for such projects as the Convention Center, Town Center Garages, Museum Parking, etc. Due to the current low interest rate environment, it is now possible to refund a portion of the 2002A, 2003A, 2005A and 2007A bonds in an amount of up to $85 million to achieve significant debt service savings. The exact amount and issues to be refunded will be determined at a time closer to the sale date. In addition to the refunding, City Council requests that the VBDA issue "new-money" PFRBs to fund certain economic development projects and equipment leases in the amount not to exceed $17 million. It is possible to achieve interest rate savings by financing these projects together as one financing. ^ Considerations: As with the previous series, the 2010 series will be issued under the Master Agreement of Trust with a Fourth Supplemental Agreement. Under the plan of financing, a Third Supplemental Support Agreement between VBDA and the City will outline the City's annual payments to VBDA in amounts sufficient to pay the debt service on the bonds. The "new-money" PFRB bonds will be sold, electronically, by competitive bid on April 6, 2010, and the PFRB refunding bonds will be sold in the same manner on April 7, 2010 on such terms as shall be satisfactory to the City Manager, provided that the bonds shall have a true interest cost not to exceed 5.0%. The actions of the City Manager shall be conclusive and no further action shall be necessary on the part of City Council. The final terms of the bond sale will be provided to City Council. VBDA will review this issue for approval at its meeting on March 16. ^ Public Information: Public information will be handled through the normal Council agenda process. Additionally, the Resolution authorizes a distribution of the Preliminary Official Statement for marketing purposes, and a Notice of Sale will be placed in The Bond Buyer. ^ Alternatives: There are no alternative funding sources at this time. This request follows previously approved CIPs. ^ Recommendations: Approval of the enclosed Resolution approving a plan of Financing with VBDA and authorizing the execution of various financing documents associated with the Plan is recommended for approval by City Council. ^ Attachments: Resolution; Draft of Fourth Supplemental Trust Agreement; and Draft of Third Supplemental Support Agreement Recommended Action: Approval "' Submitting Dep ment/Agency: Finance (~~ `1- ~ -`V City Manage . l ~. .~~ RESOLUTION APPROVING A PLAN OF FINANCING WITH THE CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY, APPROVING CERTAIN DOCUMENTS PREPARED IN CONNECTION WITH SUCH FINANCING AND AUTHORIZING THE EXECUTION AND DELIVERY OF THE SAME WHEREAS, the City of Virginia Beach, Virginia (the "City"), desires to undertake, in connection with the City of Virginia Beach Development Authority (the "Authority"), the financing of various public facilities from time to time, including, the acquisition, replacement and/or upgrades of Public Safety Communications Equipment and Infrastructure, Energy Savings Equipment for City and Public School Facilities, Fire Safety Equipment, Internet-Based Software and related equipment, Revenue Assessment and Collection System Equipment, and acquisitions, equipment and infrastructure for the City's Strategic Growth Area Program(collectively, the "2010 Projects"); and WHEREAS, the City further desires to achieve debt service savings by refinancing all or portions of certain public facility revenue bonds, series 2002A, 2003A, 2005A and 2007A (the "Prior Bonds") previously issued by the Authority on behalf of the City to finance various public facilities; and WHEREAS, the Authority, pursuant to Chapter 643 of the Virginia Acts of Assembly of 1964, as amended (the "Act"), under which it is created, is authorized to acquire, improve, maintain, equip, own, lease and dispose of "Authority facilities," as defined in the act, to finance or refinance such facilities, to issue its revenue bonds, notes and other obligations from time to time for such purposes and to pledge all or any part of its assets, whether then owned or thereafter acquired, as security for the payment of the principal of and interest on any such obligations; and WHEREAS, in furtherance of the purposes of the Act, the City requests the Authority's assistance through the issuance of its public facility revenue bonds in the maximum principal amount of $17,000,000 and its public facility refunding revenue bonds in the maximum principal amount of $85,000,000 (collectively, the "Series 2010 Bonds") in financing the 2010 Projects, refinancing all or a portion of the Prior Bonds and paying costs of issuing the Series 2010 Bonds; and WHEREAS, there have been provided or made available to City Council of the City drafts of the following documents (the "Documents"), proposed in connection with the undertaking of the 2010 Projects and the issuance and sale of the Series 2010 Bonds: (a) Fourth Supplemental Agreement of Trust draft dated March 1, 2010 (the "Fourth Supplemental Agreement"), supplementing the Agreement of Trust dated as of September 1, 2003, as previously supplemented, including the form the Series 2010 Bonds (collectively, the "Trust Agreement"), all between the Authority and U.S. Bank National Association (successor to Wachovia Bank, National Association), as successor trustee (the "Trustee"), pursuant to which the Series 2010 Bonds are to be issued and which is to be acknowledged and consented to by the City; (b) Third Supplemental Support Agreement draft dated March 1, 2010, supplementing and amending the Support Agreement dated as of September 1, 2003, as previously supplemented and amended (the "Support Agreement"), all between the Authority and the City pursuant to which the City will make annual payments to the Authority in amounts sufficient to pay the principal of and interest on the Series 2010 Bonds; (c) Preliminary Official Statement draft dated March 1, 2010, of the Authority relating to the public offering of the Series 2010 Bonds (the Preliminary Official Statement"); and (d) Continuing Disclosure Agreement draft March 1, 2010, the form of which is appended to the Preliminary Official Statement, pursuant to which the City agrees to undertake certain continuing disclosure obligations with respect to the Series 2010 Bonds; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: 1. The following plan for financing the 2010 Projects and refunding the Prior Bonds is hereby approved. (a) The Authority will issue the Series 2010 Bonds in a maximum aggregate principal amount not to exceed $102,000,000, of which not more than $17,000,000 will be for the 2010 Projects and not more than $85,000,000 will be for refunding the Prior Bonds. The Authority will use the proceeds of the Series 2010 Bonds to finance the costs of the 2010 Projects, to refund all or a portion of the Prior Bonds within the limitations set forth in paragraph (b) below and to pay the costs of issuing the Series 2010 Bonds. Pursuant to the Support Agreement, the City will make Annual Payments and Additional Payments (as each is defined in the Support Agreement) to the Authority in amounts sufficient to amortize the Series 2010 Bonds and to pay the fees or expenses of the Authority and the Trustee. The obligation of the Authority to pay principal of and premium, if any, and interest on the Series 2010 Bonds will be limited to annual payments and additional payments received from the City. The Series 2010 Bonds will be secured by an assignment of the Annual Payments and certain Additional Payments due under the Support Agreement, all for the benefit of the holders of the Series 2010 Bonds. The undertaking by the City to make Annual Payments and Additional Payments will be subject to the City Council making annual appropriations in amount sufficient for such purposes. The plan of financing for the 2010 Projects shall contain such additional requirements and provisions as may be approved by the City. (b) In connection with the refunding of the Prior Bonds, the City Manager is authorized and directed to select the principal maturities of the Prior Bonds or portions of such maturities to be refunded and, working with the Authority, to cause to be called for optional redemption any such maturity or portion thereof to be redeemed prior to its stated maturity in accordance with the provisions of such bonds; provided such maturities or portions thereof selected aze expected in the aggregate to provide a minimum savings of 2.85% on a net present value basis as determined by the City's financial advisor, Government Finance Associates, Inc. 2 (the "Financial Advisor"). In connection with the refunding herein authorized, the City Manager, if determined necessary or appropriate in consultation with the Financial Advisor, is authorized to retain the services of independent consultants to provide verification reports (the "Verification Agent") on aspects of the refunding and is further authorized to retain the services of one or more escrow agents (the "Escrow Agent") and to enter into escrow agreements with them to the extent needed to hold portions of the proceeds of the Series 2010 Bonds and other funds as needed pending their application to refund the Prior Bonds or portions thereof selected to be refunded. 2. The City Council, while recognizing that it is not empowered to make any binding commitment to make appropriations beyond the current fiscal year, hereby states its intent to make annual appropriations in future fiscal years in amounts sufficient to make all payments due under the Support Agreement and hereby recommends that future City Councils do likewise during the term of the Support Agreement. 3. The City Manager is hereby authorized to execute the Documents, which shall be in substantially the forms provided or made available to City Council, which are hereby approved, with such completions, omissions, insertions and changes not inconsistent with this Resolution as may be approved by the City Manager, his execution to constitute conclusive evidence of his approval of any such completions, omissions, insertions and changes. 4. (a) In making completions to the Support Agreement, the City Manager, in collaboration with the Financial Advisor, shall provide for Annual Payments in amounts equivalent to, and at times sufficient to make, the payments on the Series 2010 Bonds, which shall be sold to the purchaser or purchasers thereof on terms as shall be satisfactory to the City Manager; provided the Series 2010 Bonds (i) shall mature not later than 2030, (ii) have a true or "Canadian" interest cost not exceeding 5.0% (taking into account any original issue discount and premium), and (iii) be sold to the purchaser or purchasers thereof at a price not less than par or 100% of the aggregate principal amount thereof (without taking into account any original issue discount or premium). The City Manager is further authorized to approve the principal amounts, maturity schedules, including serial maturities and any term maturities, for the Series 2010 Bonds and, in consultation with the Financial Advisor, to provide for the issuance of the Series 2010 Bonds in one or more series at the same time or at different times, with appropriate series designations, as the City Manager determines to be necessary or appropriate and in the best interest of the City. (b) The Series 2010 Bonds shall be sold by competitive bid in the principal amount determined by the City Manager, in collaboration with the Financial Advisor, and the City Manager shall receive bids and award the Series 2010 Bonds to the bidder providing the lowest "true" or "Canadian" interest cost, subject to the limitations set forth in the paragraph above. Following the sale of the Series 2010 Bonds, the City Manager shall file a certificate with the City Clerk setting forth the final terms of the Series 2010 Bonds. The actions of the City Manager in approving the terms of the Series 2010 Bonds shall be conclusive, and no further action shall be necessary on the part of the City Council. 5. The Preliminary Official Statement in the form provided or made available to City Council is approved with respect to the information contained therein pertaining to the City. The Preliminary Official Statement in form deemed to be "near final," within the meaning of Rule 3 15c2-12 of the Securities and Exchange Commission (the "Rule"), with such completions, omissions, insertions and changes not inconsistent with this Resolution as may be approved by the City Manager is authorized to be distributed in connection with the marketing and sale of the Series 2010 Bonds. Such distribution shall constitute conclusive evidence that the City has deemed the Preliminary Official Statement to be final as of its date within the meaning of the Rule, with respect to the information therein pertaining to the City. The City Manager is authorized and directed to approve such completions, omissions, insertions and other changes to the Preliminary Official Statement that are necessary to reflect the terms of the sale of the Series 2010 Bonds, determined as set forth in paragraph 4, and the details thereof and that are appropriate to complete it as an official statement in final form (the "Official Statement") and distribution thereof to the purchaser or purchasers of the Series 2010 Bonds shall constitute conclusive evidence that the City has deemed the Official Statement final as of its date within the meaning of the Rule. 6. The City covenants that it shall not take or omit to take any action the taking or omission of which shall cause the Series 2010 Bonds to be "arbitrage bonds" within the meaning of Section 148 of the Internal Revenue Code of 1986, as amended (the "Code), and regulations thereunder, or otherwise cause interest on the Series 2010 Bonds to be includable in the gross income for Federal income tax purposes of the registered owners thereof under existing law. Without limiting the generality of the foregoing, the City shall comply with any provision of law that may require the City at any time to rebate to the Unites States of America any part of the earnings derived from the investment of the gross proceeds of the Series 2010 Bonds. The City shall pay from its legally available general funds any amount required to be rebated to the United States of America pursuant to the Code. 7. Any authorization herein to execute a document shall include authorization to deliver it to the other parties thereto and to record such document where appropriate. 8. All other acts of the City Manager, the Director of Finance and other officers of the City that are in conformity with the purposes and intent of this Resolution and in furtherance of the issuance and sale of the Series 2010 Bonds, the undertaking of the 2010 Projects and the refunding of the Prior Bonds are hereby approved and ratified. 9. This Resolution shall take effect immediately. CERTIFIED TO BE A TRUE COPY OF AN RESOLUTION ADOPTED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA ON MARCH , 2010. Clerk, City Council of the City of Virginia Beach, Virginia 4 Adopted by the City Council of the City of Virginia Beach, Virginia, this day of March, 2010. APPROVED AS TO CONTENT: Finance Department APPROVED AS TO LEGAL SUFFICIENCY: City Attorney's Office 5 CERTIFICATE The undersigned Clerk of the City Council of the City of Virginia Beach, Virginia (the "City Council"), certifies that: 1. A meeting of the City Council was held on March _, 2010, at the time and place established and noticed by the City Council, at which the members of the City Council were present or absent as noted below. The foregoing Resolution was adopted by a majority of the members of the City Council, by a roll call vote, the ayes and nays being recorded in the minutes of the meeting as shown below: PRESENT/ABSENT: William D. Sessoms, Jr., Mayor Louis R. Jones, Vice Mayor Rita Sweet Bellitto Glenn R. Davis Bill R. DeSteph Harry E. Diezel Robert M. Dyer Barbara M. Henley John E. Uhrin Rosemary Wilson James L. Wood - /- - /- - /- - /- - /- - /- - /- -/- - /- - /- - /- VOTE: 2. The foregoing Resolution is a true and correct copy of such Resolution as adopted on March _, 2010. The foregoing Resolution has not been repealed, revoked, rescinded or amended and is in full force and effect on the date hereof. WITNESS my signature and the seal of the City of Virginia Beach, Virginia, this day of March, 2010. Clerk, City Council of the City of Virginia Beach, Virginia (SEAL) 1923493v4 6 DRAFT THIRD SUPPLEMENTAL SUPPORT AGREEMENT between CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY and CITY OF VIRGINIA BEACH, VIRGINIA Dated as of [March] 1, 2010 NOTE: THIS THIRD SUPPLEMENTAL SUPPORT AGREEMENT HAS BEEN ASSIGNED TO, AND IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, U.S. BANK NATIONAL ASSOCIATION, AS SUCCESSOR TRUSTEE UNDER AN AGREEMENT OF TRUST DATED AS OF SEPTEMBER 1, 2003, AS SUPPLEMENTED BY A FIRST SUPPLEMENTAL AGREEMENT OF TRUST DATED AS OF SEPTEMBER 1, 2003, A SECOND SUPPLEMENTAL AGREEMENT OF TRUST DATED AS OF MAY 1, 2005, A THIRD SUPPLEMENTAL AGREEMENT OF TRUST DATED AS OF JUNE 1, 2007 AND A FOURTH SUPPLEMENTAL AGREEMENT OF TRUST DATED AS OF [MARCH] 1, 2010, WITH THE CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY, AS AMENDED OR SUPPLEMENTED FROM TIME TO TIME. INFORMATION CONCERNING SUCH SECURITY INTEREST MAY BE OBTAINED FROM THE TRUSTEE AT RICHMOND, VIRGINIA. TABLE OF CONTENTS Parties ................................................................................................................................................. l ......................................................................................................................... Recitals. ""' 1 Granting Clauses ................................................................................................................................1 ARTICLE I DEFINITIONS AND RULES OF CONSTRUCTION Section 1.1 Definitions ............................................................................................................... 2 Section 1.2 Rules of Construction ............................................................................................. 3 ARTICLE II REPRESENTATIONS Section 2.1 Representations by Authority ................................................................................. 4 Section 2.2 Representations by City .......................................................................................... 4 ARTICLE III AGREEMENT TO ISSUE BONDS Section 3.1 Agreement to Issue Series 2010 Bonds .................................................................. 5 ARTICLE IV PAYMENT OBLIGATIONS; MASTER SUPPORT AGREEMENT AMENDMENTS Section 4.1 Amounts Payable .................................................................................................... 6 ARTICLE V PREPAYMENT AND REDEMPTION Section 5.1 Prepayment and Redemption .................................................................................. 6 i ARTICLE VI SERIES 2010 ARBITRAGE REBATE FUND Section 6.1 Series 2010 Arbitrage Rebate Fund ........................................................................ 6 Section 6.2 Rebate Requirements .............................................................................................. 7 Section 6.3 Calculation and Report of Rebate Amount ............................................................. 7 Section 6.4 Payment of Rebate Amount .................................................................................... 7 Section 6.5 Reports by Trustee .................................................................................................. 8 Section 6.6 Disposition of Balance in Series 2010 Arbitrage Rebate Fund .............................. 8 ARTICLE VII MISCELLANEOUS Section 7.1 Private Activity Covenants ................................................ 8 Section 7.2 Severability ..................................... Section 7.3 ............................................ Successors and Assigns ................................................................. 9 .......................... ................................................................. 9 Section 7.4 Counterparts ........................................... .................................. 9 Section 7.5 Governing Law ............................... Signatures ...................................... ................................................................. 9 10 Receipt 11 Exhibit A -Schedule or Payments Exhibit B -Description of Series 2010 Projects A-1 B-1 u THIS THIRD SUPPLEMENTAL SUPPORT AGREEMENT dated as of [March] 1, 2010, by and between the CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY, a political subdivision of the Commonwealth of Virginia (the "Authority"), and the CITY OF VIRGINIA BEACH, VIRGINIA, a political subdivision of the Commonwealth of Virginia (the "City"), provides: WITNESSETH: WHEREAS, the Authority is a political subdivision of the Commonwealth of Virginia duly created by Chapter 643 of the Virginia Acts of Assembly of 1694, as amended (the "Act"); and WHEREAS, the Act authorities the Authority to acquire, improve, maintain, equip, own, lease and dispose of "Authority facilities," as defined in the Act, to finance or refinance and lease facilities for use by, among others, a city, to issue its revenue bonds, notes and other obligations from time to time for such purposes and to pledge all or any part of its assets, whether then owned or thereafter acquired, as security for the payment of the principal of and interest on any such obligations; and WHEREAS, THE City desires to undertake a program of financing or refinancing the acquisition, construction and equipping of various public facilities that the City determines to undertake from time to time; and WHEREAS, in furtherance of the purposes of the Act, the City has requested the Authority to undertake one or more series of Projects (as defined in the Support Agreement, as hereinafter defined), and the Authority has determined to issue from time to time pursuant to the terms of an Agreement of Trust dated as of September 1, 2003 (the "Master Agreement of Trust"), between the Authority and U.S. Bank National Association (successor to Wachovia Bank, National Association), Richmond, Virginia, as successor trustee (the "Trustee"), as supplemented by the First Supplemental Agreement of Trust dated as of September 1, 2003, a Second Supplemental Agreement of Trust dated as of May 1, 2005, a Third Supplemental Agreement of Trust dated as of June 1, 2007 and a Fourth Supplemental Agreement of Trust dated as of [March] 1, 2010, all between the Authority and the Trustee (collectively, the "Agreement of Trust"), its public facility revenue bonds and to loan the proceeds thereof to the City to finance or refinance costs incurred in connection with such Projects and costs of issuing such bonds; and WHEREAS, in furtherance of the purposes of the Act, the Authority and the City have entered into a support agreement dated as of September 1, 2003, as supplemented and amended by a First Supplemental Support Agreement dated as of May 1, 2005 and a Second Supplemental Support Agreement dated as of June 1, 2007 (the "Master Support Agreement"), pursuant to which the Authority has agreed to loan from time to time such proceeds to the City, and the City has agreed to repay such loans, subject to appropriation by the City council from time to time of sufficient moneys for such purpose; and WHEREAS, within the limitations and in compliance with the Agreement of Trust, the City has requested the Authority to issue [three] series of Bonds in the aggregate principal amount of $ (the "Series 2010 Bonds") and to loan such proceeds to the City to finance the cost of the Series 2010 Projects and refund the Prior Bonds (as such terms are hereinafter defined) pursuant to the terms of this Third Supplemental Support Agreements; and WHEREAS, all acts, conditions and things required by law to happen, exist and be performed precedent to and in connection with the execution of and entering into this Third Supplemental Support Agreement have happened, exist and have been performed in regular and due time and in form and manner as required by law, and the parties hereto are now duly empowered to execute and enter into this Third Supplemental Support Agreement; NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter contained and other valuable consideration, the parties hereto covenant and agree as follows: ARTICLE I DEFINITIONS AND RULES OF CONSTRUCTION Section 1.1 Definitions. Unless otherwise defined in this Third Supplemental Support Agreement, all words used herein shall have the meanings assigned to such terms in the Agreement of Trust or the Master Support Agreement. The following words as used in this Third Supplemental Support Agreement shall have the following meanings unless a different meaning clearly appears from the context: "Agreement of Trust" shall mean the Agreement of Trust dated as of September 1, 2003, as previously supplemented, and as further supplemented by the Fourth Supplemental Agreement of Trust. "Basic Agreements" shall mean the Agreement of Trust and the Support Agreement. "Fourth Supplemental Agreement of Trust" shall mean the Fourth Supplemental Agreement of Trust dated as of [March) 1, 2010, between the Authority and the Trustee, which supplements the Agreement of Trust. "Master Support Agreement" shall mean the Support Agreement dated as of September 1, 2003, between the Authority and the City. "Prior Bonds" shall mean the Authority's Public Facility Revenue Bonds, Series "Series 2010 Bonds" shall mean the Series 2010A Bonds, the Series 2010B Bonds and the Series 2010C Bonds. 2 "Series 2010 Projects" shall mean the financing of the acquisition, construction and equipping of all or a portion of the projects as set forth on Exhibit B. "Series 2010 Arbitrage Rebate Fund" shall mean the fund established in section 6.1 "Series 2010A Bonds" shall mean the Authority's $ Public Facility Revenue Bonds, Series 2010A, authorized to be issued pursuant to the Fourth Supplemental Agreement of Trust. "Series 2010B Bonds" shall mean the Authority's $ Public Facility Refunding Revenue Bonds, Series 2010B, authorized to be issued pursuant to the Fourth Supplemental Agreement of Trust. `Series 2010C Bonds" shall mean the Authority's $ Public Facility Refunding Revenue Bonds, Series 2010C, authorized to be issued pursuant to the Fourth Supplemental Agreement of Trust. "Support Agreement" shall mean the Master Support Agreement as previously supplemented and amended and as supplemented and amended by this Third Supplemental Support Agreement. "Third Supplemental Support Agreement" shall mean this Third Supplemental Support Agreement dated as of [March] 1, 2010, between the Authority and the City, which supplements the Master Support Agreement. Section 1.2 Rules of Construction. The following rules shall apply o the construction of this Third Supplemental Support Agreement unless the context otherwise requires: (a) Words importing the singular number shall include the plural number and vice versa. (b) Words importing the redemption or calling for redemption of Bonds shall not be deemed to refer to or connote the payment of Bonds at their stated maturity. (c) Unless otherwise indicated, all references herein to particular Articles or Sections are references to Articles or Sections of this Third Supplemental Support Agreement. (d) The headings herein and Table of Contents to this Third Supplemental Support Agreement herein are solely for convenience of reference and shall not constitute a part of this Third Supplemental Support Agreement nor shall they affect its meaning, construction or effect. (e) All references herein to payment of Bonds are references to payment of principal of and premium, if any, and interest on the Bonds. 3 ARTICLE II REPRESENTATIONS Section 2.1 Representations by Authority. The Authority makes the following representations: (a) The Authority is a political subdivision of the Commonwealth of Virginia duly created under the Act; (b) Pursuant to the Act, the Authority ahs full power and authority to enter into the Basic Agreements and to perform the transactions contemplated thereby and to carry out its obligations thereunder and by proper action has duly authorized, executed and delivered the Basic Agreements. (c) The execution, delivery and compliance by the Authority with the terms and conditions of the Basic Agreements will not conflict with or constitute or result in a default under or violation of, (1) any existing law, rule or regulation applicable to the Authority, or (2) any trust agreement, mortgage, deed of trust, lien, lease, contract, note, order, judgment, decree or other agreement, instrument or other restriction of any kind to which the Authority or any of its assets is subject; (d) No further approval, consent or withholding of objection on the part of any regulatory body or any official, Federal state or local, is required in connection with the execution or delivery of or compliance by the Authority with the terms and conditions of the Basic Agreements, except that no representation is made as to the applicability of any Federal or state securities laws; and (e) There is no litigation at law or in equity or any proceeding before any governmental agency involving the Authority pending or, the knowledge of the Authority, threatened with respect to (1) the creation and existence of the Authority, (2) its authority to execute and deliver the Basic Agreements, (3) the validity or enforceability of the Basic Agreements, or the Authority's performance of its obligations thereunder, (4) the title of any officer of the Authority executing the Basic Agreements, or (5) the ability of the Authority to issue and sell its bonds. Section 2.2 Representations by City. The City makes the following representations: (a) The City is a political subdivision of the Commonwealth of Virginia; (b) The City has full power and authority to enter into the Basic Agreements to which it is a party and to perform the transactions contemplated thereby and to carry out its obligations 4 thereunder and by proper action has duly authorized, executed and delivered the Basic Agreements; (c) The City is not in default in the payment of the principal of or interest on any of its indebtedness for borrowed money and is not in default under any instrument under or subject to which any indebtedness for borrowed money has been incurred, and no event has occurred and is continuing that with the lapse of time or the giving of notice, or both, would constitute or result in an event of default thereunder; (d) The City is not in default under or in violation of, and the execution, delivery and compliance by the City with the terms and conditions of the Basic Agreements to which it is a party will not conflict with or constitute or result in a default under or violation of, (1) any existing law, rule or regulation applicable to the City or (2) any trust agreement, mortgage, deed of trust, lien, lease, contract, note, order, judgment, decree or other agreement, instrument or restriction of any kind to which the City or any of its assets is subject, and no event has occurred and is continuing that with the lapse of time or the giving of notice, or both, would constitute or result in such a default or violation; (e) No further approval, consent or withholding of objection on the part of any regulatory body or any official, Federal, state or local, is required in connection with the execution or delivery of or compliance by the City with the terms and conditions of the Basic Agreements to which it is a party; and (f) There is no litigation at law or in equity or any proceeding before any governmental agency involving the City pending or, to the knowledge of the City, threatened with respect to (1) the authority of the City to execute and deliver the Basic Agreements to which it is a party, (2) the validity or enforceability of the Basic Agreements or the City's performance Agreements, or (4) the ability of the City to undertake the Series 2010 Projects. ARTICLE III AGREEMENT TO ISSUE BONDS Section 3.1 Agreement to Issue Series 2010 Bonds. The Authority shall contemporaneously with the execution and delivery hereof proceed with the issuance and sale of the Series 2010 bonds bearing interest, maturing and having the other terms and provisions set forth in the Agreement of Trust. ARTICLE IV PAYMENT OBLIGATIONS; MASTER SUPPORT AGREEMENT AMENDMENTS Section 4.1 Amounts Payable. The Master Support Agreement is hereby amended to replace in its entirety the Exhibit A attached hereto with the new Exhibit A attached hereto. Pursuant to Article IV of the Master SuppoR Agreement and subject specifically to the limitation of Section 4.4 thereof, the City shall pay to the Authority or its assignee the Annual Payments specified in Exhibit A attached hereto on or before the due dates set forth in such exhibit. The annual Payments shall be payable without notice or demand at the designated corporate trust office of the Trustee. ARTICLE V PREPAYMENT AND REDEMPTION Section 5.1 Prepayment and Redemption. The City shall have the option to prepay an Annual Payment at the times and in the amounts as necessary to exercise its option to cause the Series 2010 Bonds to be redeemed as set forth in such Series 2010 Bonds. Such prepayments of Annual Payments shall be made at the times and in the amounts as necessary to accomplish the optional redemption of the Series 2010 Bonds as set forth in the Series 2010 Bonds. The Series 2010 Bonds shall be prepaid or redeemed in the manner and at the times set forth in the Series 2010 Bonds. Upon the exercise of such option, the City shall also pay as Additional Payments, the amounts necessary to pay the premium, if any, due on such Series 2010 Bonds on the date or dates of their redemption. The City shall give- the Trustee notice of any redemption of such Series 2010 Bonds at least 15 days prior to the latest date that notice of redemption may be given pursuant to Section 402 of the Master Agreement of Trust. Such notice to the Trustee shall specify the redemption date, the principal amount of Series 2010 Bonds to be redeemed, the premium, if any, and the section of the Agreement of Trust pursuant to which such redemption is to be made. ARTICLE VI SERIES 2010 ARBITRAGE REBATE FUND Section 6.1 Series 2010 Arbitrage Rebate Fund. There is hereby established the City of Virginia Beach, Virginia, Series 2010 Public Facility Revenue Bond Arbitrage Rebate Fund (the "Series 2010 Arbitrage Rebate Fund") to be held by or on behalf of the City. Subject to the limitation in Section 4.4 of the Master Support Agreement, the City shall deposit moneys in the Series 2010 Arbitrage Rebate Fund from time to 6 __ time for payment of the rebate obligations under the Code (the `'Rebate Amount"). The City may establish separate accounts in the Series 2010 Arbitrage Rebate Fund for such payments. Section 6.2 Rebate Requirements. Except with respect to earnings on funds and accounts qualifying the exceptions to the rebate requirement of Section 148 of the Code, the City shall pay, but solely from amounts in the Series 2010 Arbitrage Rebate Fund, the Rebate amount to the United States of America, as and when due, in accordance with Section 148(f) of the code, as provided in this Article, and shall retain records of all such determinations until six years after payment of the Series 2010 Bonds. Section 6.3 Calculation and Report of Rebate Amount. (a) The City selects March 15 as the end of the bond year with respect to the Series 2010 Bonds pursuant to Treasury Regulation Section 1.148-1'. (b) Within 30 days after the initial installment computation date which is the last day of the fifth bond year, unless such date is changed by the City prior to the date that any amount with respect to the Series 2010 Bonds is paid or required to be paid to the United States of America as required by Section 148 of the Code, and at least once every five years thereafter, the City shall cause the Rebate Amount to be computed and shall deliver a copy of such computation (the "Rebate Amount Certificate") to the Authority and the Trustee. Prior to any payment of the Rebate Amount to the United States of America as required by Section 148 of the Code, a Rebate Amount Certificate setting forth such Rebate Amount shall be prepared or approved by (1) a person with experience in matters of governmental accounting for Federal income tax purposes or (2) a bona fide arbitrage rebate calculation reporting service. Section 6.4 Payment of Rebate Amount. Not later than 60 days after the initial installment computation date, the City shall pay solely from amounts in the Series 2010 Arbitrage Rebate Fund to the United States of America at least 90% of the Rebate Amount as set forth in the Rebate Amount Certificate prepared with respect to such installment computation date. At least once on or before 60 days after the installment computation date that is the fifth anniversary of the initial installment computation date or on or before 60 days after every fifth anniversary date thereafter until final payment of the Series 2010 Bonds, the City shall pay to the United States of America not less than the amount, if any, by which 90% of the Rebate Amount set forth in the most recent Rebate Amount Certificate exceeds the aggregate of all such payments theretofore made to the United States of America pursuant to this Section. On or before 60 days after final payment of the Series 2010 Bonds, the City shall pay to the United States of America the amount, if any, by which 100% of the Rebate Amount set forth in the Rebate Amount Certificate with respect to the date of final payment of the Series 2010 Bonds exceeds the aggregate of all payments theretofore made pursuant to this Section. All such payments shall be made solely from amounts in the Series 2010 Arbitrage Rebate Fund. Notwithstanding any provision of the Support Agreement to the contrary, no such payment shall be made if the City receives and delivers to the Trustee and the Authority an opinion of Bond Counsel to the effect that (a) such payment is not required under the Code in order to prevent the Series 2010 Bonds from becoming "arbitrage bonds" within the meaning of Section 148 of the Code or (b) such payment should be calculated and paid on some alternative basis under the code, and the City complies with such alternative basis. The Authority covenants that, if so requested by the City, it shall execute any form required to be signed by an issuer of tax-exempt bonds in connection with the payment of any Rebate amount (including Internal Revenue Service Form 8038-T) based on information supplied to the Authority by the City. The City shall supply all information required to be stated on such form and shall prepare such form. Except for the execution and delivery of such form upon timely presentation by the City, the Authority shall have no responsibility for such form or the information stated thereon. Section 6.5 Reports by Trustee. The Trustee shall provide the City within 10 days after each July 1 and within 10 days after the final payment of the Series 2010 Bonds with such reports and information with respect to earnings of amounts held under the Agreement of Trust as may be requested by the City in order to comply with the provisions of this Article. Section 6.6 Disposition of Balance in Series 2010 Arbitrage Rebate Fund. After each payment required in Section 6.4 is made and any additional amount necessary to pay the full rebate obligation is retained, the remaining amount in the Series 2010 Arbitrage Rebate Fund shall be retained by the City and used for any lawful purpose. ARTICLE VII MISCELLANEOUS Section 7.1 Private Activity Covenants. The City covenants not to permit the proceeds of the Series 2010 Bonds to be used in any manner that would result in (a) 5% or more of such proceeds or the faculties financed with such proceeds being used in a trade or business carried on by any person other than a governmental unit, as provided in Section 141(b) of the Code, (b) 5% or more of such proceeds being used with respect to any "output facility" (other than a facility for the furnishing of water), within the meaning of Section 141(b)(4) of the Code, or (c) 5% or more of such proceeds being used directly or indirectly to make or finance loans to any persons other than a governmental unit, as provided in Section 141(c) of the Code; provided, however, that if the City receives an opinion of Bond Counsel that any such covenants need not be complied with to prevent the interest on the Series 2010 Bonds from being includable in the gross income for Federal income tax purposes under existing law, the City need not comply with such covenants. 8 Section 7.2 Severability. If any provision of this Third Supplemental Support Agreement shall be held invalid by any court of competent jurisdiction, such holding shall not invalidate any other provision hereof. Section 7.3 Successors and Assigns. This Third Supplemental Support Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. Section 7.4 Counterparts. This Third Supplemental Support Agreement may be executed in any number of counterparts, each of which shall be an original, all of which together shall constitute but one and the same instrument. Section 7.5 Governing Law. This Third Supplemental Support Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia. 9 IN WITNESS WHEREOF, the parties have caused this Third Supplemental Support Agreement to be duly executed by their duly authorized representatives as of the date first above written. CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY By: Chairman CITY OF VIRGINIA BEACH, VIRGINIA By: City Manager Seen and agreed to: U.S. BANK NATIONAL ASSOCIATION, As Trustee By: Title: 10 RECEIPT Receipt of the foregoing original counterpart of the Third Supplemental Support Agreement dated as of [March] 1, 2010, between the City of Virginia Beach Development Authority and the City of Virginia Beach, Virginia, is hereby acknowledged. U.S. BANK, NATIONAL ASSOCIATION, as Trustee By: Title: 11 EXHIBIT A SCHEDULE OF PAYMENTS A-1 EXHIBIT B DESCRIPTION OF SERIES 2010 PROJECTS The following sets forth brief descriptions of the Series 2010 Projects to be financed in whole or in part with the proceeds of the Series 2010 Bonds: 1926181v1 B-1 DRAFT FOURTH SUPPLEMENTAL AGREEMENT OF TRUST Between CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY And U.S. BANK NATIONAL ASSOCIATION, as successor Trustee Dated as of [March 1 ], 2010 TABLE OF CONTENTS Parties Recitals Granting Clause ARTICLE I FOURTH SUPPLEMENTAL AGREEMENT 1 1 1 Section 4-101. Authorization of Fourth Supplemental Agreement ............................................2 Section 4-102. Definitions ..........................................................................................................2 Section 4-103. Rules of Construction ........................................................................................3 ARTICLE II AUTHORIZATION, DETAILS AND FORM OF SERIES 2010 BONDS Section 4-201. Authorization of Series 2010 Bonds and Series 2010 Projects ..........................4 Section 4-202. Details of Series 2010 Bonds .............................................................................4 Section 4-203. Form of Series 2010 Bonds ................................................................................5 Section 4-204. Securities Depository Provisions .......................................................................5 Section 4-205. Delivery of Series 2010 Bonds ..........................................................................6 ARTICLE III REDEMPTION OF SERIES 2010 BONDS Section 4-301. Redemption Date and Price ...............................................................................6 Section 4-302. Selection of Series 2010 Bonds for Redemption ...............................................7 Section 4-303. Notice of Redemption ........................................................................................8 ARTICLE IV APPLICATION OF PROCEEDS OF SERIES 2010 BONDS Section 4-401. Application of Proceeds of Series 2010 Bonds ...................................................9 ARTICLE V ESTABLISHMENT OF ACCOUNT Section 4-501. Series 2010A Project Account ...........................................................................9 Section 4-502. Series 2010B Project Account ...........................................................................9 Section 4-503. Series 201 OC Project Account ...........................................................................9 ARTICLE VI SECURITY FOR SERIES 2010 BONDS Section 4-601. Security for Series 2010 Bonds ........................................................................10 ARTICLE VII MISCELLANEOUS Section 4-701. Limited on Use of Proceeds .............................................................................10 Section 4-702. Limitation of Right ..........................................................................................10 Section 4-703. SeverabilitY ......................................................................................................10 Section 4-704. Successors and Assigns ....................................................................................1 l Section 4-705. Applicable Law ................................................................................................1 l Section 4-706. Counterparts .....................................................................................................1 l Exhibit A -Form of Series 2010A Bond A-1 Exhibit B -Form of Series 2010B/201 OC Bond B-1 This FOURTH SUPPLEMENTAL AGREEMENT OF TRUST dated as of [March] 1, 2010, by and between the CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY, a political subdivision of the Commonwealth of Virginia (the "Authority"), and U.S. BANK NATIONAL ASSOCIATION (as successor to Wachovia Bank, National Association), a national banking association, having a corporate trust office in Richmond, Virginia, as trustee in such capacity, together with any successor in such capacity, herein called the "Trustee"), provides: WHEREAS, the Authority is a political subdivision of the Commonwealth of Virginia duly created by Chapter 643 of the Virginia Acts of Assembly of 1964, as amended (the "Act"); and WHEREAS, the Authority and the Trustee have entered into an Agreement of Trust dated as of September 1, 2003 (the "Master Agreement of Trust"), as supplemented by the First Supplemental Agreement of Trust dated as of September 1, 2003, the Second Supplemental Agreement of Trust dated as of May 1, 2005, and the Third Supplemental Agreement of Trust dated as of June 1, 2007 pursuant to which the Authority has agreed to issue from time to time public facility revenue bonds or notes and use the proceeds thereof to finance costs incurred in connection with certain Projects (as hereinafter defined) for the benefit of the City of Virginia Beach, Virginia (the "City); and WHEREAS, within the limitations of and in compliance with the Master Agreement of Trust, the City has requested the Authority to issue public facility revenue bonds to finance the costs of the Series 2010 Projects (as hereinafter defined) and public facility refunding revenue bonds to refund all or portions of the Authority's public facility revenue bonds Series 2002A, 2003A and 2005A to provide debt service savings; and WHEREAS, the Authority has agreed to issue the Series 2010 Bonds (as hereinafter defined) in the aggregate principal amount of $ ,secured by a pledge of the revenues and receipts derived from a Support Agreement dated as of September 1, 2003, as supplemented and amended by a First Supplemental Support Agreement dated as of May 1, 2005, a Second Supplemental Support Agreement dated as of June 1, 2007 and a Third Supplemental Support Agreement dated as of March 1, 2010 (the "Support Agreement"), between the Authority and the City, and the City has agreed, subject to the annual appropriation by the Council of the City, to make annual payments that will be sufficient to pay the principal of and premium, if any, and interest on such public facility revenue bonds as the same shall become due; and WHEREAS, the Authority has taken all necessary action to make the Series 2010 Bonds, when authenticated by the Trustee and issued by the Authority, valid and binding limited obligations of the Authority and to constitute this Fourth Supplemental Agreement a valid and binding agreement authorizing and providing for the details of the Series 2010 Bonds; NOW THEREFORE, in consideration of the premises and the mutual covenants and agreements hereinafter contained, the parties hereto agree as follows: ARTICLE I FOURTH SUPPLEMENTAL AGREEMENT Section 4-101. Authorization of Fourth Supplemental Agreement. This Fourth Supplemental Agreement is authorized and executed by the Authority and delivered to the Trustee pursuant to and in accordance with Articles III and X of the Master Agreement of Trust. All tenors, covenants, conditions and agreements of the Master Agreement of Trust shall apply with full force and effect to the Series 2010 Bonds and to the holder thereof, except as otherwise provided in this Fourth Supplemental Agreement. Section 4-102. Definitions. Except as otherwise defined in this Fourth Supplemental Agreement, words defined in the Master Agreement of Trust are used in this Fourth Supplemental agreement with the meanings assigned to them in the Master Agreement of Trust. In addition, the following words shall have the following meanings unless a different meaning clearly appears from the context: "Letter of Representations" shall mean the Blanket Letter of Representations dated July 11, 1997, from the Authority to the Securities Depository and any amendments thereto or successor agreements between the Authority and any successor Securities Depository with respect to the Series 2010 Bonds. Notwithstanding any provision of the Master Agreement of Trust, including Article X regarding amendments, the Trustee may enter into any such amendment or successor agreement without the consent of Bondholders. "Prior Bonds" shall mean the Authority's public facility revenue bonds. "Project" or "Projects" shall have the meaning set forth in the Support Agreement. "Securities Depository" shall mean The Depository Trust Company, a corporation organized and existing under the laws of the State of New York, and any other securities depository for the Series 2010 Bonds appointed pursuant to Section 1.204, and their successors. "Series 2010 Bonds" shall mean the Series 2010A Bonds, the Series 2010B Bonds and the Series 2010C Bonds. "Series 2010 Projects" shall mean have the meaning set forth in the Support Agreement. "Series 2010A Bonds" shall mean Authority's $ Public Facility Revenue Bonds, Series 2010A, authorized to be issued pursuant to this Fourth Supplemental Agreement. "Series 2010A Project Account" shall mean the Series 2010A Project Account established in Section 4-501 of this Fourth Supplemental Agreement. 2 "Series 2010B Bonds" shall mean Authority's $ Public Facility Refunding Revenue Bonds, Series 2010B, authorized to be issued pursuant to this Fourth Supplemental Agreement. "Series 2010B Project Account" shall mean the Series 2010B Project Account established in Section 4-502 of this Fourth Supplemental Agreement. "Series 2010C Bonds" shall mean the Authority's $ Public Facility Refunding Revenue Bonds, Series 2010C, authorized pursuant to this Fourth Supplemental Agreement. "Series 2010C Project Account" shall mean the Series 2010C Project Account established in Section 4-503 of this Fourth Supplemental Agreement. "Fourth Supplemental Agreement" shall mean this Fourth Supplemental Agreement of Trust between the Authority and the Trustee, which supplements and amends the Master Agreement of Trust. Section 4-103. Rules of Construction. The following rules shall apply to the construction of this Fourth Supplemental Agreement unless the context otherwise requires: (a) Words importing the singular number shall include the plural number and vice versa. (b) Words importing the redemption or calling for redemption of Series 2010 Bonds shall not be deemed to refer to or connote the payment of Series 2010 Bonds at their stated maturity. (c) Unless otherwise indicated, all references herein to particulaz Articles or Sections are references to Articles or Sections of this Fourth Supplemental Agreement. (d) The headings herein and Table of Contents to this Fourth Supplemental Agreement herein are solely for convenience of reference and shall not constitute a part of this Fourth Supplemental Agreement nor shall they affect its meaning, construction or effect (e) All references herein to payment of Series 2010 Bonds are references to payment of principal of and interest on the Series 2010 Bonds. 3 ARTICLE II AUTHORIZATION, DETAILS AND FORM OF SERIES 2010 BONDS Section ~t-201. Authorization of Series 2010 Bonds and Series 2010 Projects. There are hereby authorized to be issued the Series 2010A Bonds in an aggregate principal amount of $ Series 2010B Bonds in an aggregate principal of $ and Series 2010C Bonds in an aggregate principal of $ to finance the Cost of the Series 2010 Projects, (b) to refund the Prior Bonds and (c) costs incident to issuing the series 2010 Bonds, in accordance with Article IV hereof. Section 4-202. Details of Series 2010 Bonds. _ (a) finance (a) The Series 2010A Bonds shall be designated "Public Facility Revenue Bonds, Series 2010A," shall be the date of their delivery, shall be issuable only as fully registered bonds in denominations of $5,000 and integral multiples thereof and shall be numbered R-1 upwazd. The Series 2010A Bonds shall bear interest at rates, payable semiannually on each Mazch 15, and September 15, beginning September 15, 2010, and shall mature in installments on March 15 in years and amounts, as follows: Year Amount Rate 2011 2012 2013 2014 2015 (b) The Series 2010B Bonds shall be designated "Public Facility Refunding Revenue Bonds, Series 2010B," shall be the date of their delivery, shall be issuable only as fully registered bonds in denominations of $5,000 and integral multiples thereof and shall be numbered R-1 upwazd. The Series 201 OB Bonds shall bear interest at rates, payable semiannually on each March 15, and September 15, beginning September 15, 2010, and shall mature in installments on March 15 in years and amounts, as follows: Year Amount Rate 2016 2017 2018 2019 2020 Year Amount Rate 2011 2012 2013 2014 2015 Year Amount Rate 2016 2017 2018 2019 2020 o/a (c) The Series 2010C Bonds shall be designated "Public Facility Refunding Revenue Bonds, Series 2010C," shall be the date of their delivery, shall be issuable only as fully registered bonds in denominations of $5,000 and integral multiples thereof and shall be 4 numbered R-1 upward. The Series 2010C Bonds shall bear interest at rates, payable semiannually on each March 15, and September 15, beginning September 15, 2010, and shall mature in installments on March 15 in years and amounts, as follows: Year Amount Rate Year Amount Rate 2011 $ % 2016 $ 2012 2017 2013 2018 2014 2019 2015 2020 (d) Each Series 2010 Bond shall bear interest (a) from its date, if such Series 2010 Bond is authenticated prior to the first interest payment date, or (b) otherwise from the interest payment date that is, or immediately precedes, the date on which such Series 2010 Bond is authenticated; provided, however, that if at the time of authentication of any Series 2010 Bond shall bear interest from the date to which interest has been paid. Interest shall be calculated on the basis of a 360-day year of twelve 30-day months. (e) Principal of the Series 2010 Bonds shall be payable to the registered holder(s) upon the surrender of Series 2010 Bonds at the corporate trust office of the Trustee in Richmond, Virginia. Interest on the Series 2010 Bonds shall be payable by check or draft mailed to the registered owners at their addresses as they appear on the registration books kept by the Trustee on the first day of the month of each interest payment date; provided, however, if the Series 2010 Bonds are registered in the name of a Securities Depository or its nominee as registered holder or at the option of a registered holder(s) of at least $1,000,000 of Series 2010 Bonds, payment shall be made by wire transfer pursuant to the wire instructions received by the Trustee from such registered holder(s). If the nominal date for making any payment on the Series 2010 Bonds is not a Business day, the payment may be made on the next business Day with the same effect as if made on the nominal date, and no additional interest shall accrue between the nominal date and the actual payment date. Principal and interest shall be payable in lawful money of the United States of America. Section 4-203. Form of Series 2010 Bonds. The Series 2010A Bonds shall be in substantially the form set forth n Exhibit A and the Series 2010B and 2010C Bonds shall be in substantially the form set forth in Exhibit B, with such appropriate variations, omissions and insertions as are permitted or required by the Master Agreement of Trust and this Fourth Supplemental Agreement Section 4-204. Securities Depository Provisions Initially, one certificate for each maturity of each Series of the Series 2010 Bonds will be issued and registered to the Securities Depository, or its nominee. The Authority has entered into a Letter of Representations relating to a book-entry system to be maintained by the Securities Depository with respect to the Series 2010 Bonds. In the event that (a) the securities Depository determines not to continue to act as a securities depository for the Series 2010 Bonds by giving notice to the Trustee and the Authority discharging its responsibilities hereunder or (b) the Authority, at the direction of the City, determines (1) that beneficial owners of Series 2010 Bonds shall be able to obtain certificated Series 2010 Bonds or (2) to select a new Securities Depository, then the Trustee shall, at the direction of the authority, attempt to locate another qualified securities depository to serve as Securities Depository or authenticate and deliver certificated Series 2010 Bonds to the beneficial owners or to the Securities Depository participants on behalf of beneficial owners substantially in the form provided for in Exhibit A or Exhibit B, as applicable; provided, however, that such form shall provide for interest on the Series 2010 Bonds to be payable (i) from if it is authenticated prior to Mazch 15, , or (ii) otherwise from the Mazch 15 or September 15 that is, or immediately precedes, the date on which it is authenticated (unless payment of interest thereon is in default, in which case interest on such Series 2010 Bonds shall be payable from the date to which interest has been paid). In delivering certificated Series 2010 Bonds, the Trustee shall be entitled to rely conclusively on the records of the Securities Depository as to the beneficial owners or the records of the Securities Depository participants acting on behalf of beneficial owners. Such certificated Series 2010 Bonds will be registrable, transferable and exchangeable as set forth in Section 204 and 205 of the Master Agreement of Trust. So long as there is a Securities Depository for the Series 2010 Bonds (A) it or its nominee shall be the registered holder(s) of the Series 2010 Bonds, (B) notwithstanding anything to the contrary in this Fourth Supplemental Agreement, determinations of persons entitled to payment of principal and interest, transfers of ownership and exchanges and receipt of notices shall be the responsibility of the Securities Depository and shall be effected pursuant to rules and procedures established by such Securities Depository, (C) the Authority and the Trustee shall not be responsible or liable for maintaining, supervising or reviewing the records maintained by the Securities Depository, its participants or persons acting through such participants, (D) references in this Fourth Supplemental Agreement to registered holder(s) of the Series 2010 Bonds shall mean such Securities Depository or its nominee and shall not mean the beneficial owners of the Series 2010 Bonds and (E) in the event of any inconsistency between the provisions of this Fourth Supplemental Agreement, other than those set forth in this pazagraph and the preceding pazagraph, and the provisions of the Letter of Representations such provisions of the Letter of Representations shall control. Section 4-205. Delivery of Series 2010 Bonds. The Trustee shall authenticate and deliver the Series 2010 Bonds when there have been filed with or delivered to it all items required by Section 303 of the Master Agreement of Trust. ARTICLE III REDEMPTION OF SERIES 2010 BONDS Section 4-301. Redemption Date and Price. (a) Optional Redemption. The Series 2010 Bonds may not be called for redemption by the Authority except as follows. The Series 2010 Bonds maturing on or after March 15, 2021, may be redeemed by the Authority, at the direction of the City, on or after March 15, 2020, in whole or in part at any time (in increments of $5,000), at a redemption price of 100% of the principal amount, or portion thereof, of Series 2010 Bonds to be redeemed plus interest accrued to the redemption date. (b) j[Mandatory Redemption. The Series ~ Bonds maturing on March 15, , are required to be redeemed prior to maturity in part upon payment of 100% of the principal amount thereof plus interest accrued to the redemption date on March 15 in years and amounts, as follows: Year Amount The Series Bonds maturing on March 15, ,are required to be redeemed prior to maturity in part upon payment of 100% of the principal amount thereof plus interest accrued to the redemption date on March 15 in years and amounts, as follows:] Year Amount Section 4-302. Selection of Series 2010 Bonds for Redemption. If less than all of the Series 2010 Bonds are called for redemption, the Series 2010 Bonds to be redeemed shall be selected by the Securities Depository or any successor securities depository pursuant to its rules and procedures or, if the book-entry system is discontinued, shall be selected by the Trustee by lot in such manner as the Trustee in its discretion may determine. The portion of any Series 2010 Bond to be redeemed shall be in the principal amount of $5,000 or some multiple thereof. In selecting Series 2010 Bonds for redemption, each Series 2010 Bond shall be considered as representing that number of Series 2010 bonds which is obtained by dividing the principal amount of such Series 2010 Bonds by $5,000. If a portion of a Series 2010 Bond shall be called for redemption, a new Series 2010 Bond in principal amount equal to the unredeemed portion thereof shall be issued to the registered owner upon the surrender thereof. 7 Section ~1-303. Notice of Redemption. The Trustee, upon being satisfied as to the payment of its expenses and upon receiving the notice of redemption from the Authority not less than 45 days prior to the redemption date, shall send notice of the call for redemption, identifying the Series 2010 Bonds or portions thereof to be redeemed, not less than 30 nor more than 60 days prior to the redemption date, (a) by facsimile or electronic transmission, registered or certified mail or overnight express delivery, to the holder of each Series 2010 Bond to be redeemed at his address as it appears on the registration books kept by the Trustee, (b) by facsimile or electronic transmission, registered or certified mail or overnight express delivery, to all organizations registered with the Securities and Exchange Commission as securities depositories and (c) to each nationally recognized municipal securities information repository designated as such by the Securities and Exchange Commission. In preparing and delivering such notice, the Trustee shall take into account, to the extent applicable, the prevailing tax-exempt securities industry standards and any regulatory statement of any federal or state administrative bond having jurisdiction over the Authority or the tax-exempt securities industry, including Release No. 34-23856 of the Securities and Exchange Commission or any subsequent amending or superseding release. Failure to give any notice specified in (a) above, or any defect therein, shall not affect the validity of any proceedings for the redemption of any Series 2010 Bond with respect to which no such failure or defect has occurred. Failure to give any notice specified in (b) or (c) above, or any defect herein, shall not affect the validity of any proceedings for the redemption of any Series 2010 Bonds with respect to which the notice specified in (a) above is correctly given. Any notice mailed or provided herein shall conclusively be presumed to have been given whether or not actually received by any Series 2010 Bondholder. In the case of an optional redemption, the notice may state that (1) it is conditioned upon the deposit of moneys, in an amount equal to the amount necessary to effect the redemption, with the Trustee no later than the redemption date or (2) the Authority, as directed by the City, retains the right to rescind such notice on or prior to the scheduled redemption date (in either case, a "Conditional Redemption"), and such notice and optional redemption shall be of no effect if such moneys are not so deposited or if the notice is rescinded as described herein. Any Conditional Redemption in (2) above may be rescinded at any time prior to the redemption date if the Authority delivers a written direction to the Trustee directing the Trustee to rescind the redemption notice and any funds deposited with the Trustee in connection with such rescinded redemption shall be returned to the City. The Trustee shall give prompt notice of such rescission to the affected Series 2010 Bondholders. Any Series 2010 Bonds subject to Conditional Redemption where redemption has been rescinded shall remain Outstanding, and the rescission shall not constitute an Event of Default. Further, in the case of Conditional Redemption, the failure to the Authority to make funds available on or before the redemption date shall not constitute an Event of Default, and the Trustee shall give immediate notice to all organizations registered with the Securities and Exchange Commission as securities depositories or the affected Series 2010 Bondholders that the redemption did not occur and that the Series 2010 Bonds called for redemption and not so paid remain outstanding. ~ ,v , ARTICLE IV APPLICATION OF PROCEEDS OF SERIES 2010 BONDS Section 4-101. Application of Proceeds of Series 2010 Bonds. (a) The proceeds of the Series 2010A Bonds ($ )shall be paid to the Trustee and shall be transferred to the City for deposit into the Series 2010A Project Account in the Project Fund. (b) The proceeds of the Series 20108 Bonds ($ )shall be paid to the Trustee and shall be transferred to the City for deposit into the Series 20108 Account. (c) The proceeds of the Series 2010C Bonds ($ )shall be paid to the Trustee and shall be transferred to the City for deposit into the Series 2010C Account. ARTICLE V ESTABLISHMENT OF ACCOUNT Series 4-501. Series 2010A Project Account. There shall be established within the Project Fund a special account entitled "Series 2010A Project Account." The portion of the proceeds of the Series 2010A Bonds specified in Section 4.401(a), together with good faith deposit in the amount of $ previously paid to the City, shall be deposited by the City in the Series 20108 Project Account. Money in the Series 2010A Project Account shall be used in accordance with the provisions of Section 503 of the Master Agreement of Trust. Series 4-502. Series 20108 [Project] Account. There shall be established within the Project fund a special account entitled "Series 20108 [Project] Account." The portion of the proceeds of the Series 20108 Bonds specified in Section 4.401(b), together with the good faith deposit of $ previously paid to the City, shall be deposited by the City in the Series 20108 Account. Money in the Series 2010E Account shall be used in accordance with the provisions of Section of the Master Agreement of Trust. Series 4-503. Series 2010C [Project] Account. There shall be established within the Project fund a special account entitled "Series 2010C [Project] Account." The portion of the proceeds of the Series 201 OC Bonds specified in Section 4.401(c), together with the good faith deposit of $previously paid to the City, shall be deposited by the City in the Series 2010C Account. Money in the Series 2010C Account shall be used in accordance with the provisions of Section of the Master Agreement of Trust. 9 ARTICLE VI SECURITY FOR SERIES 2010 BONDS Section 4-601. Security for Series 2010 Bonds. The Series 2010 Bonds shall be equally and ratably secured under the Master Agreement of Trust with the Authority's $165,000,000 Public Facility Revenue Bonds, Series 2003A, its $94,900,000 Public Facility Revenue Bonds, Series 2005A, its $9,000,000 Taxable Public Facility Revenue Bonds, Series 20058, its. $96,835,000 Public Facility Revenue Bonds, Series 2007A and its $4,030,000 Taxable Public Facility Revenue Bonds, Series 20078 and any other series issued pursuant to Article III of the Master Agreement of Trust, without preference, priority or distinction of any Bonds over any other Bonds, except as provided in the Master Agreement of Trust. ARTICLE VII MISCELLANEOUS Section 4-701. Limited on Use of Proceeds. The Authority intends that interest on the Series 2010 Bonds shall be excluded from gross income for Federal income tax purposes. The Authority covenants with the holders of the Series 2010 Bonds not to take any action that would adversely atTect, and to take all action within its power necessary to maintain, the exclusion of interest on all Series 2010 Bonds from gross income for Federal income taxation purposes. Section 4-702. Limitation of Right. With the exception of rights herein expressly conferred, nothing expressed or mentioned in or to be implied from this Fourth Supplemental Agreement or the Series 2010 Bonds is intended or shall be construed to give to any person other than the parties hereto and the holders of Series 2010 Bonds any legal or equitable right, remedy or claim under or in respect to this Fourth Supplemental Agreement or any covenants, conditions and agreements herein contained since this Fourth Supplemental Agreement and all of the covenants, conditions and agreements hereof are intended to be and are for the sole and exclusive benefit of the parties hereto and the holders of Bonds as herein provided. Section 4-703. Severahility. If any provision of this Fourth Supplemental Agreement shall be held invalid by any court of competent jurisdiction, such holding shall not invalidate any other provision hereof and this Fourth Supplemental Agreement shall be construed and enforced as if such illegal provision had not been contained herein. 10 ~ ~ I ~, ,. -.~: »~e Section 4-704. Successors and Assigns. This Fourth Supplemental Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. Section 4-705. Applicable Law. This Fourth Supplemental Agreement shall be governed by the applicable laws of the Commonwealth of Virginia. Section 4-706. Counterparts. This Fourth Supplemental Agreement may be executed in several counterparts, each of which shall be an original and all of which together shall constitute but one and the same instrument. 11 IN WITNESS WHEREOF, the Authority and the Trustee have caused this Fourth Supplemental Agreement to be executed in their respective corporate names as of the date first above written. CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY sy: U.S. BANK NATIONAL ASSOCIATION, As Trustee By: Title: Acknowledged and Consented To: CITY OF VIRGINIA BEACH, VIRGINIA, By: Title: 12 EXHIBIT A Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the issuer or its agent for registration of transfer, exchange, or payment, and any certificate is registered in the name of Cede & Co., or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein. REGISTERED REGISTERED AR-1 UNITED STATES OF AMERICA COMMONWEALTH OF VIRGINIA S CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY Public Facility Revenue Bond, Series 2010A INTEREST RATE MATURITY DATE DATED DATE CUSIP March 15, , 2010 92774G REGISTERED OWNER: CEDE & CO. PRINCIPAL AMOUNT: DOLLARS The City of Virginia Beach Development Authority, a political subdivision of the Commonwealth of Virginia (the "Authority"), for value received, hereby promises to pay upon surrender hereof at the principal corporate trust office of U.S. Bank National Association (successor to Wachovia Bank, National Association), Richmond, Virginia, as trustee, or its successor in trust (the "Trustee"), under the Agreement of Trust (as hereinafter defined) solely from the source and as hereinafter provided, to the registered owner hereof, or registered assigns or legal representative, the principal sum stated above on the maturity date stated above, subject to prior redemption as hereinafter provided, and to pay, solely from such source, interest hereon on each March 15 and September 15, beginning 15, , at the annual rate stated above, calculated on the basis of a 360-day year of twelve 30-day months. Interest is payable (a) from , 2010, if this bond is authenticated prior to March 15, , or (b) otherwise from the March 15 or September 15 that is, or immediately precedes, the date on which this bond is authenticated (unless payment of interest hereon is in default, in which case this bond shall A-1 bear interest from the day to which interest has been paid). Interest is payable by check or draft mailed to the registered owner hereof at its address as it appears on the first day of the month of each interest payment date on registration books kept by the Trustee; provided, however, that at the option of a registered owner of at least $1,000,000 of Bonds (as hereinafter defined), payment will be made by wire transfer pursuant to the most recent wire instructions received by the Trustee from such registered owner. If the nominal date for making any payment on this bond a Business Day (as hereinafter defined), the payment may be made on the next Business Day with the same effect as if made on the nominal date, and no additional interest shall accrue between the nominal date and the actual payment date. Principal and interest are payable in lawful money of the United States of America. "Business Day" shall mean a day on which banking business is transacted, but not including a Saturday, Sunday or legal holiday, or any day on which banking institutions are authorized by low to close in the city in the Commonwealth of Virginia in which the Trustee has its principal corporate trust office. Notwithstanding any other provision hereof, this bond is subject to book-entry foam maintained by the Depository Trust Company ("DTC"), and the payment of principal and interest, the providing of notices and other matters shall be made as described in the Authority's Letter or Representations to DTC. This bond is one of an issue of $ Public Facility Revenue Bonds, Series 2010A (the "Bonds"), authorized and issued pursuant to Chapter 643 of the Virginia Acts of Assembly of 1964, as amended. The Bonds are issued under and secured by an Agreement of Trust dated as of September 1, 2003, between the Authority and the Trustee, as supplemented by a First Supplemental Agreement of Trust dated as of September 1, 2003, a Second Supplemental Agreement of Trust dated as of May 1, 2005, a Third Supplemental Agreement of Trust dated as of June 1, 2007 and a Fourth Supplemental Agreement of Trust dated as of March 1, 2010 (collectively, the "Agreement of Trust"). The Agreement of Trust assigns to the Trustee, as security for the Bonds, (a) the revenues and receipts derived from a Support Agreement dated as of September 1, 2003, as supplemented and amended by a First Supplemental Support Agreement dated as of May 1, 2005, and a Second Supplemental Support Agreement dated as of June 1, 2007 and a Third Supplemental Agreement of Trust dated as of March 1, 2010 (collectively, the "Support Agreement"}, each between the Authority and the City of Virginia Beach, Virginia (the "City"), and (b) the Authority's rights under the Support Agreement (except for the Authority's rights under the Support Agreement to the payment of certain fees and expenses and the rights to notices). Reference is hereby made to the Agreement of Trust for a description of the provisions, among others, with respect to the nature and extent of the security, the rights, duties and obligations of the Authority and the Trustee, the rights of the holders of the Bonds and the terms upon which the Bonds are issued and secured. The Bonds are equally and ratably secured on a parity basis with the Authority's $165,000,000 Public Facility Revenue Bonds, Series 2003A, its $94,900,000 Public Facility Revenue Bonds, Series 2005A, its $9,000,000 Taxable Public Facility Revenue Bonds, Series 20058, its $4,030,000 Taxable Public Facility Revenue Bonds, Series 20108, its $96,835,000 Public Facility Revenue Bonds, Series 2007A and its $4,030,000 Taxable Public Facility Revenue Bonds, Series 20078 (the ``Parity Bonds"). Additional bonds secured by a pledge of revenues and receipts derived from the City A-2 under the Support Agreement on a parity with the Bonds and the Parity Bonds may be issued under the terms and conditions set forth in the Agreement of Trust. Terms not otherwise defined herein shall have the meaning assigned such terms in the Agreement of Trust. The Bonds are issued to (a) finance the acquisition, construction and equipping of various capital improvements for the City and (b) pay costs incurred in issuing the Bonds, Under the Support Agreement, the City has agreed to make payments that will be sufficient to pay the principal of and interest on the Bonds as the same shall become due in accordance with their terms and the provisions and the terms of the agreement of Trust. The undertaking by the City to make payments under the Support Agreement does not constitute a debt of the City within the meaning of any constitutional or statutory limitation nor a liability of or a lien or charge upon funds or property of the City beyond any fiscal year for which the City has appropriated moneys to make such payments. THE BONDS AND THE INTEREST THEREON ARE LIMITED OBLIGATIONS OF THE AUTHORITY PAYABLE SOLELY FROM REVENUES AND RECEIPTS DERIVED FROM THE CITY RECEIVED BY THE AUTHORITY UNDER THE SUPPORT AGREEMENT, AND FROM CERTAIN FUNDS, AND THE INVESTMENT INCOME THEREON, HELD UNDER THE AGREEMENT OF TRUST, WHICH REVENUES, RECEIPTS AND FUNDS HAVE BEEN PLEDGED AND ASSIGNED TO SECURE PAYMENT THEREOF. THE BONDS AND INTEREST THEREON SHALL NOT BE DEEMED TO CONSTITUTE A GENERAL OBLIGATION DEBT OR A PLEDGE OF THE FAITH AND CREDIT OF THE COMMONWEALTH OF VIRGINIA OR ANY POLITICAL SUBDIVISION THEREOF, INCLUDING THE AUTHORITY AND THE CITY. NEITHER THE COMMONWEALTH OF VIRGINIA NOR ANY POLITICAL SUBDIVISION THEREOF, INCLUDING THE AUTHORITY AND THE CITY, SHALL BE OBLIGATED TO PAY THE PRINCIPAL OF OR INTEREST ON THE BONDS OR OTHER COSTS INCIDENT THERETO EXCEPT FRO THE REVENUES AND RECEIPTS PLEDGED AND ASSIGNED THEREFORE, AND NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE COMMONWEALTH OF VIRGINIA, OR ANY POLITICAL SUBDIVISION THEREOF, INCLUDING THE AUTHORITY AND THE CITY, IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THE BONDS OR OTHER COSTS INCIDENT THERETO. THE AUTHORITY HAS NO TAXING POWER. No covenant, condition or agreement contained herein shall be deemed to be a covenant, agreement or obligation of any present or future director, officer, employee or agent of the Authority in is individual capacity, and neither the Chairman of the Authority nor any officer thereof executing this Bond shall be liable personally on the Bonds or be subject to any personal liability or accountability by reason of the issuance thereof. The Bonds may not be called for redemption by the Authority except as provided herein and in the Agreement of Trust. The Bonds maturing on or after March 15, ,may be redeemed prior to their respective maturities on or after March 15, , at the option of the Authority, at the direction A-3 of the City, in whole or in part at any time at a redemption price of 100% of the principal amount, or portion thereof, of Bonds to be redeemed plus interest accrued to the redemption date. If less than all the Bonds are called for redemption, they shall be redeemed from maturities in such order as determined by the Authority. If less than all of the bonds of any maturity are called for redemption, the Bonds to be redeemed shall be selected by DTC or any successor securities depository pursuant to its rules and procedures or, if the book-entry system is discontinued, shall be selected by the Trustee by lot in such manner as the Trustee in its discretion may determine. The portion of any Bond to be redeemed shall be in the principal amount of $5,000 or some integral multiple thereof. In selecting Bonds for redemption, each Bond shall be considered as representing that number of Bonds which is obtained by dividing the principal amount of such Bond by $5,000. If any of the Bonds or portions thereof are called for redemption, the Trustee shall send notice of the call for redemption, identifying the Bonds or portions thereof to be redeemed, not less than 30 nor more than 60 days prior to the redemption date, by facsimile or electronic transmission, registered or certified mail or overnight express delivery, to the registered owner of the Bonds. Such notice may state that (1) it is conditioned upon the deposit of moneys, in an amount equal to the amount necessary to effect the redemption, with the Trustee no later that the redemption date or (2) the Authority retains the right to rescind such notice on or prior to the scheduled redemption date, and such notice and option redemption shall be of no effect if such moneys are not so deposited or if the notice is rescinded. Provided funds for their redemption are on deposit at the place of payment on the redemption date, all Bonds or portions thereof so called for redemption shall, cease to beaz interest on such date, shall no longer be secured by the Agreement of Trust and shall not be deemed to be Outstanding under the provisions of the Agreement of Trust. If a portion of the Bond shall be called for. redemption, a new Bond in principal amount equal to the unredeemed portion hereof will be issued to DTC or its nominee upon surrender hereof, or if the book-entry system is discontinued, to the registered owners of the Bonds. The registered owner of this Bond shall have no right to enforce the provisions of the Agreement of Trust or to institute action to enforce the covenants therein or to take any action with respect to any Event of Default under the Agreement of Trust or to institute, appeaz in or defend any suit or other proceedings with respect thereto, except as provided in the Agreement of Trust. Modifications or alterations of the Agreement of Trust or the Support Agreement, or of any supplement thereto, may be made only to the extent and in the circumstances permitted by the Agreement of Trust. The Bonds are issuable as registered bonds in the denomination of $5,000 and integral multiples thereof. Upon surrender for transfer or exchange of this Bond at the corporate trust office of the Trustee in Richmond, Virginia, together with an assignment duly executed by the registered owner or its duly authorized attorney or legal representative in such form as shall be satisfactory to the Trustee, the Authority shall execute, and the Trustee shall authenticate and deliver iri exchange, a new Bond or Bonds in the manner and subject to the limitations and conditions provided in the Agreement of Trust, having an equal aggregate principal amount, in authorized denominations, of the same series, form and maturity, bearing interest at the same rate A-4 ~ .ter .,~,. and registered in the name or names as requested by the then registered owner hereof or its duly authorized attorney or legal representative. Any such exchange shall be at the expense of the Authority, except that the Trustee may charge the person requesting such exchange the amount of any tax or other governmental charge required to be paid with respect thereto. The Trustee shall treat the registered owner as the person exclusively entitled to payment of principal and interest and the exercise of all other rights and powers of the owner, except that interest payments shall be made to the person shown as holder on the first day of the month of each interest payment date. All acts conditions and things required to happen, exist or be performed precedent to and in the issuance of this bond have happened, exist and have been performed. This Bond shall not become obligatory for any purpose or be entitled to any security or benefit under the Agreement of Trust or be valid until the Trustee shall have executed the Certificate of Authentication appearing hereon and inserted the date of authentication hereon. IN WITNESS WHEREOF, the City of Virginia Beach Development Authority has caused this Bond to be signed by its Chairman, its seal to be imprinted hereon and attested by its Secretary, and this Bond to be dated the date first above written. CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY (SEAL) By Attest: Secretary Chairman A-5 CERTIFICATE OF AUTHENTICATION Date Authenticated: This Bond is one of the Series 2010A Bonds described in the within mentioned Agreement of Trust. U.S. BANK NATIONAL ASSOCIATION, as Trustee By Authorized Officer A-6 ASSIGNMENT FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) unto (please print or typewrite name and address, including zip code, of Transferee) PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF TRANSFEREE The within Bond and all rights thereunder, hereby irrevocably constituting and appointing Attorney, to transfer said Bond on the books kept for the registration thereof, with full power of substitution in the premises. Date: Signature Guaranteed NOTICE: Signature(s) must be guaranteed by an Eligible Guazantor Institution such as a Commercial Bank, Trust Company, Securities Broker/Dealer, Credit Union, or Savings Association who is a member of a medallion program approved by The Securities Transfer Association, Inc. (Signature of Registered Owner) NOTICE: The signature above must correspond with the name of the registered owner as it appears on the front of this bond in every particular, without alteration or eniazgement or any change whatsoever. A-7 EXHIBIT B Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the issuer or its agent for registration of transfer, exchange, or payment, and any certificate is registered in the name of Cede & Co., or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein. REGISTERED BR-1 UNITED STATES OF AMERICA COMMONWEALTH OF VIRGINIA REGISTERED CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY Public Facility Refunding Revenue Bond, Series 2010B/2010C INTEREST RATE MATURITY DATE DATED DATE CUSIP March 15, , 2010 92774G REGISTERED OWNER: CEDE & CO. PRINCIPAL AMOUNT: DOLLARS The City of Virginia Beach Development Authority, a political subdivision of the Commonwealth of Virginia (the "Authority"), for value received, hereby promises to pay upon surrender hereof at the principal corporate trust office of U.S. Bank National Association (successor to Wachovia Bank, National Association), Richmond, Virginia, as trustee, or its successor in trust (the "Trustee"), under the Agreement of Trust (as hereinafter defined) solely from the source and as hereinafter provided, to the registered owner hereof, or registered assigns or legal representative, the principal sum stated above on the maturity date stated above, subject to prior redemption as hereinafter provided, and to pay, solely tcom such source, interest hereon on each March 15 and September 15, beginning 15, , at the annual rate stated above, calculated on the basis of a 360-day year of twelve 30-day months. Interest is payable (a) from , 2010, if this bond is authenticated prior to March 15, , or (b) otherwise from the March 15 or September 15 that is, or immediately precedes, the date on which this bond is authenticated (unless payment of interest hereon is in default, in which case this bond shall bear interest from the day to which interest has been paid). Interest is payable by check or draft mailed to the registered owner hereof at its address as it appears on the first day of the month of B-i each interest payment date on registration books kept by the Trustee; provided, however, that at the option of a registered owner of at least $1,000,000 of Bonds (as hereinafter defined), payment will be made by wire transfer pursuant to the most recent wire instructions received by the Trustee from such registered owner. If the nominal date for making any payment on this bond a Business Day (as hereinafter defined), the payment may be made on the next Business Day with the same effect as if made on the nominal date, and no additional interest shall accrue between the nominal date and the actual payment date. Principal and interest are payable in lawful money of the United States of America. "Business Day" shall mean a day on which banking business is transacted, but not including a Saturday, Sunday or legal holiday, or any day on which banking institutions aze authorized by low to close in the city in the Commonwealth of Virginia in which the Trustee has its principal corporate trust office. Notwithstanding any other provision hereof, this bond is subject to book-entry form maintained by the Depository Trust Company ("DTC"), and the payment of principal and interest, the providing of notices and other matters shall be made as described in the Authority's Letter or Representations to DTC. This bond is one of an issue of $ Public Facility Refunding Revenue Bonds, Series 2010B/2010C (the "Bonds"), authorized and issued pursuant to Chapter 643 of the Virginia Acts of Assembly of 1964, as amended. The Bonds are issued under and secured by an Agreement of Trust dated as of September 1, 2003, between the Authority and the Trustee, as supplemented by a First Supplemental Agreement of Trust dated as of September 1, 2003, a Second Supplemental Agreement of Trust dated as of May 1, 2005, a 'Third Supplemental Agreement of Trust dated as of June 1, 2007 and a Fourth Supplemental Agreement of Trust dated as of Mazch 1, 2010 (collectively, the "Agreement of Trust"). The Agreement of Trust assigns to the Trustee, as security for the Bonds, (a) the revenues and receipts derived from a Support Agreement dated as of September 1, 2003, as supplemented and amended by a First Supplemental Support Agreement dated as of May 1, 2005, and a Second Supplemental Support Agreement dated as of June 1, 2007 and a Third Supplemental Agreement of Trust dated as of March 1, 2010 (collectively, the "Support Agreement"), each between the Authority and the City of Virginia Beach, Virginia (the "City"), and (b) the Authority's rights under the Support Agreement (except for the Authority's rights under the Support Agreement to the payment of certain fees and expenses and the rights to notices). Reference is hereby made to the Agreement of Trust for a description of the provisions, among others, with respect to the nature and extent of the security, the rights, duties and obligations of the Authority and the Trustee, the rights of the holders of the Bonds and the terms upon which the Bonds aze issued and secured. The Bonds are equally and ratably secured on a parity basis with the Authority's $165,000,000 Public Facility Revenue Bonds, Series 2003A, its $94,900,000 Public Facility Revenue Bonds, Series 2005A, its $9,000,000 Taxable Public Facility Revenue Bonds, Series 20058, its $4,030,000 Taxable Public Facility Revenue Bonds, Series 20108, its $96,835,000 Public Facility Revenue Bonds, Series 2007A and its $4,030,000 Taxable Public Facility Revenue Bonds, Series 20078 (the "Parity Bonds"). Additional bonds secured by a pledge of revenues and receipts derived from the City under the Support Agreement on a parity with the Bonds and the Parity Bonds may be issued B-2 I . p,. _... .... under the terms and conditions set forth in the Agreement of Trust. Terms not otherwise defined herein shall have the meaning assigned such terms in the Agreement of Trust. The Bonds are issued to (a) finance the acquisition, construction and equipping of various capital improvements for the City, (b) to refund certain of the Authority's public facility revenue bonds and (b) pay costs incurred in issuing the Bonds, Under the Support Agreement, the City has agreed to make payments that will be sufficient to pay the principal of and interest on the Bonds as the same shall become due in accordance with their terms and the provisions and the terms of the agreement of Trust. The undertaking by the City to make payments under the Support Agreement does not constitute a debt of the City within the meaning of any constitutional or statutory limitation nor a liability of or a lien or charge upon funds or property of the City beyond any fiscal year for which the City has appropriated moneys to make such payments. THE BONDS AND THE INTEREST THEREON ARE LIMITED OBLIGATIONS OF THE AUTHORITY PAYABLE SOLELY FROM REVENUES AND RECEIPTS DERIVED FROM THE CITY RECEIVED BY THE AUTHORITY UNDER THE SUPPORT AGREEMENT, AND FROM CERTAIN FUNDS, AND THE INVESTMENT INCOME THEREON, HELD UNDER THE AGREEMENT OF TRUST, WHICH REVENUES, RECEIPTS AND FUNDS HAVE BEEN PLEDGED AND ASSIGNED TO SECURE PAYMENT THEREOF. THE BONDS AND INTEREST THEREON SHALL NOT BE DEEMED TO CONSTITUTE A GENERAL OBLIGATION DEBT OR A PLEDGE OF THE FAITH AND CREDIT OF THE COMMONWEALTH OF VIRGINIA OR ANY POLITICAL SUBDIVISION THEREOF, INCLUDING THE AUTHORITY AND THE CITY. NEITHER THE COMMONWEALTH OF VIRGINIA NOR ANY POLITICAL SUBDIVISION THEREOF, INCLUDING THE AUTHORITY AND THE CITY, SHALL BE OBLIGATED TO PAY THE PRINCIPAL OF OR INTEREST ON THE BONDS OR OTHER COSTS INCIDENT THERETO EXCEPT FRO THE REVENUES AND RECEIPTS PLEDGED AND ASSIGNED THEREFORE, AND NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE COMMONWEALTH OF VIRGINIA, OR ANY POLITICAL SUBDIVISION THEREOF, INCLUDING THE AUTHORITY AND THE CITY, IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THE BONDS OR OTHER COSTS INCIDENT THERETO. THE AUTHORITY HAS NO TAXING POWER. No covenant, condition or agreement contained herein shall be deemed to be a covenant, agreement or obligation of any present or future director, officer, employee or agent of the Authority in is individual capacity, and neither the Chairman of the Authority nor any officer thereof executing this Bond shall be liable personally on the Bonds or be subject to any personal liability or accountability by reason of the issuance thereof. The Bonds may not be called for redemption by the Authority except as provided herein and in the Agreement of Trust. The Bonds maturing on or after March 15, ,may be redeemed prior to their respective maturities on or after Mazch 15, , at the option of the Authority, at the direction B-3 of the City, in whole or in part at any tr deemedre us int res t ccrued to tOhe~ redemptpon datel amount, or portion thereof, of Bonds to be p If less than all the Bonds are called for redemption, they shall be redeemed from maturities in such order as determined by the Authority. If less than all of the bonds of any maturity are called for redemption, the Bonds to be redeemed shall be selected by DTC or any successor securities depository pursuant to its rules and procedures or, if the book-entry system is discontinued, shall be selected by the Trustee by lot in such manner as the Trustee in its discretion may determine. The portion of any Bond to be redeemed shall be in the principal amount of $5,000 or some integral multiple thereof. In selecting Bonds for redemption, each Bond shall be considered as representing that number of Bonds which is obtained by dividing the principal amount of such Bond by $5,000. If any of the Bonds or portions thereof are called for redemption, the Trustee shall send notice of the call for redemption, identifying the Bonds or portions thereof to be redeemed, not less than 30 nor more than 60 days prior to the redemption date, by facsimile or electronic transmission, registered or certified mail or overnight express delivery, to the registered owner of the Bonds. Such notice may state that (1) it is conditioned upon the deposit of moneys, in an amount equal to the amount necessary to effect the redemption, with the Trustee no later that the redemption date or (2) the Authority retains the right to rescind such notice on or prior to the scheduled redemption date, and such notice and option redemption shall be of no effect if such moneys are not so deposited or if the notice is rescinded. Provided funds for their redemption are on deposit at the place of payment on the redemption date, all Bonds or portions thereof so called for redemption shall cease to bear interest on such date, shall no longer be secured by the Agreement of Trust and shall not be deemed to be Outstanding under the provisions of the Agreement of Trust. If a portion of the Bond shall be called for redemption, a new Bond in principal amount equal to the unredeemed portion hereof will be issued to DTC or its nominee upon surrender hereof, or if the book-entry system is discontinued, to the registered owners of the Bonds. The registered owner of this Bond shall have no right to enforce the provisions of the Agreement of Trust or to institute action to enforce the covenants therein or to take any action with respect to any Event of Default under the Agreement of Trust or to institute, appeaz in or defend any suit or other proceedings with respect thereto, except as provided in the Agreement of Trust. Modifications or alterations of the Agreement of Trust or the Support Agreement, or of any supplement thereto, may be made only to the extent and in the circumstances permitted by the Agreement of Trust. The Bonds aze issuable as registered bonds in the denomination of $5,000 and integral multiples thereof. Upon surrender for transfer or exchange of this Bond at the corporate trust office of the Trustee in Richmond, Virginia, together with an assignment duly executed by the registered owner or its duly authorized attorney or legal representative in such form as shall be satisfactory to the Trustee, the Authority shall execute, and the Trustee shall authenticate and deliver in exchange, a new Bond or Bonds in the manner and subject to the limitations and conditions provided in the Agreement of Trust, having an equal aggregate principal amount, in authorized denominations, of the same series, form and maturity, bearing interest at the same rate B-4 _.w:4~,..,...w ..,..._........ and registered in the name or names as requested by the then registered owner hereof or its duly authorized attorney or legal representative. Any such exchange shall be at the expense of the Authority, except that the Trustee may charge the person requesting such exchange the amount of any tax or other governmental charge required to be paid with respect thereto. The Trustee shall treat the registered owner as the person exclusively entitled to payment of principal and interest and the exercise of all other rights and powers of the owner, except that interest payments shall be made to the person shown as holder on the first day of the month of each interest payment date. All acts conditions and things required to happen, exist or be performed precedent to and in the issuance of this bond have happened, exist and have been performed. This Bond shall not become obligatory for any purpose or be entitled to any security or benefit under the Agreement of Trust or be valid until the Trustee shall have executed the Certificate of Authentication appearing hereon and inserted the date of authentication hereon. IN WITNESS WHEREOF, the City of Virginia Beach Development Authority has caused this Bond to be signed by its Chairman, its seal to be imprinted hereon and attested by its Secretary, and this Bond to be dated the date first above written. CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY (SEAL) By Chairman Attest: Secretary B-5 CERTIFICATE OF AUTHENTICATION Date Authenticated: This Bond is one of the Series 2010B/2010C Bonds described in the within mentioned Agreement of Trust. U.S. BANK NATIONAL ASSOCIATION, as Trustee By Authorized Officer B-6 ~l~ ....eu..,,..,... ._ ,.... ASSIGNMENT FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) unto (please print or typewrite name and address, including zip code, of Transferee) PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF TRANSFEREE The within Bond and all rights thereunder, .hereby irrevocably constituting and appointing Attorney, to transfer said Bond on the books kept for the registration thereof, with full power of substitution in the premises. Date: Signature Guaranteed NOTICE: Signature(s) must be guaranteed by an Eligible Guarantor Institution such as a Commercial Bank, Trust Company, Securities Broker/Dealer, Credit Union, or Savings Association who is a member of a medallion program approved by The Securities Transfer Association, Inc. 1926195v1 (Signature of Registered Owner) NOTICE: The signature above must correspond with the name of the registered owner as it appears on the front of this bond in every particular, without alteration or enlargement or any change whatsoever. B-7 r4 '"- ~ ~~y~7 ~U_ ,~ ~'"`si . ~ ~ ,'LV:~` CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to amend ORD-3053A, which authorized the execution of an Exchange Agreement with the United States of America, to include a restrictive covenant in the Navy's Quitclaim Deed conveying Marshview. MEETING DATE: March 9, 2010 ^ Background: On September 23, 2008, the City adopted ORD-3053A (the "Exchange Ordinance") authorizing the conveyance to the City, in fee simple, surplus property the Navy owns in Virginia Beach, comprising 99 acres, more or less, and generally known as "Marshviev~' (the "Marshview Property"), subject to certain use restrictions limiting the property to park use, in exchange for a restrictive easement on property the City owns in the Interfacility Traffic Area. The Exchange Ordinance authorized the execution of an Exchange Agreement with the Navy pursuant to a summary of terms (the "Summary of Terms") attached to the Exchange Ordinance. The Summary of Terms provided that the Navy would convey the Marshview Property to the City by a quitclaim deed that contains restrictions limiting the use of the property to a public park and prohibiting certain activities or structures that would interfere with the Navy's operations at Naval Air Station Oceana. After the adoption of the Exchange Ordinance, the Navy informed the City that it will require another restrictive covenant to be included in the Navy's quitclaim deed, which covenant would pass along to the City responsibility for complying with federal requirements for archaeological surveys. The restrictive covenant (the "Survey Covenant") would require, among other things, the City to seek prior approval from the State Department of Historic Resources, which serves as the Virginia State Historic Preservation Office ("SHPO"), before commencing any land-disturbing activity requiring digging more than 6-inches deep, and to comply with recommendations by SHPO that an archaeological survey be conducted in order to preserve any as yet undiscovered, significant archaeological sites. The Survey Covenant would be a permanent restriction on the Marshview Property. A revised Summary of Terms (the "Amended Summary of Terms"), attached to the Ordinance, describes the Survey Covenant in more detail. ^ Considerations: The City's Outdoors Plan, its guidance document for open space acquisition and outdoor recreation planning, recommended the Marshview Property be acquired for a future public park. The Marshview Property is one of the largest tracts of undeveloped land at the Oceanfront and is conveniently located between the neighborhoods of Lands End, Salt Marsh Point, Seatack, and Shadowlawn on Lake Rudee. The Marshview Property would meet public needs by providing a unique upland, waterfront park property for Virginia Beach residents. ^ Public Information: Previous adoption and advertisement of ORD-3053A, and advertisement of Council Agenda and the Ordinance. ^ Recommendations: Approve the Ordinance and authorize the amendment of ORD-3053A ^ Attachments: Ordinance, Marshview Location Map, Amended Summary of Terms Recommended Action: Submitting Department/Agency: Parks & Recreatio ~~ City Manager: ~~~ ~ ~~~.. ~ ~~ 1 AN ORDINANCE TO AMEND ORD-3053A, 2 WHICH AUTHORIZED THE EXECUTION OF AN 3 EXCHANGE AGREEMENT WITH THE UNITED 4 STATES OF AMERICA, TO INCLUDE A 5 RESTRICTIVE COVENANT IN THE NAVY'S 6 QUITCLAIM DEED CONVEYING MARSHVIEW 7 8 9 WHEREAS, the City Council of the City of Virginia Beach has 1o authorized and funded CIP 9-060, the Oceana and Inter-Facility Traffic Area Acquisition 11 Program (the "Program"), for acquisition of property surrounding Oceana and in the 12 Inter-Facility Traffic Area ("ITA"); 13 14 WHEREAS, pursuant to the Program, the City acquired a 46.59- 15 acre parcel of land on Indian River Road in Virginia Beach, Virginia by Deed dated 16 March 23, 2007 and recorded in the Clerk's Office of the Circuit Court of the City of 17 Virginia Beach, Virginia as Instrument No. 20070515000660610 for $1,167,570 (the 18 "ITA Property") generally known as GPIN 1483-58-0100 (formerly 1483-48-9053); 19 2 p WHEREAS, as authorized by Ordinance 30008 adopted by the City 21 Council on September 25, 2007, the United States of America, Department of the Navy 22 (the "Navy") and the City entered into aMulti-Year Agreement on September 27, 2007, 23 in which the Navy and the City agreed that the City would convey to the Navy restrictive 24 easements over property the City acquires in the ITA, and the Navy would pay fair 2 5 market value of the easement or 50% of the City's acquisition cost of the ITA properties 2 6 (the "Encroachment Partnering Agreement'), with such compensation to also include a 2 ~ like-kind exchange of the Navy property generally known as Marshview (the "Marshview 2 8 Property") to the City; 29 3 o WHEREAS, as authorized by Ordinance 3053A adopted by the City 31 Council on September 23, 2008, the City Council authorized the execution of an 3 2 Exchange Agreement with the United States of America to acquire the Marshview 33 Property consistent with the Summary of Terms attached to Ordinance 3053A, which 34 included a provision that the Marshview Property would be restricted to limited park use; 35 3 6 WHEREAS, after the adoption of the Ordinance 3053A, the Navy 3 ~ informed the City that it will require another covenant to be included in the Navy's 3 8 quitclaim deed to the City for the Marshview Property, which covenant would pass along 3 9 to the City all responsibility for complying with federal requirements for archaeological 40 surveys; 41 42 WHEREAS, the added covenant (the "Survey Covenant") would 43 require, among other things, the City to seek prior approval from the State Department 44 of Historic Resources, which serves as the Virginia State Historic Preservation Office 45 ("SHPO"), before commencing any land-disturbing activity requiring digging more than 46 6-inches deep, and to comply with recommendations by SHPO that an archaeological 47 survey be conducted in order to preserve any as yet undiscovered, significant 48 archaeological sites, as more particularly described in the Amended Summary of Terms 49 attached hereto and made a part hereof; 50 51 WHEREAS, as the proposed amendment to the terms of the 52 Exchange Agreement represents a change in the substantive rights of the City in that 53 agreement, City Council approval of the Amended Summary of Terms is required prior 54 to execution of the Exchange Agreement; 55 56 WHEREAS, after the adoption of the Ordinance 3053A, the 57 Marshview Property was surveyed and an acquisition plat has been prepared, which 58 survey reflects that the size of the Marshview Property is approximately 98.664 acres, 59 rather than the 82 acres estimated in the original Summary of Terms; and 60 61 WHEREAS, the City Council finds that it is in the best interests of the City 62 to acquire the Marshview Property from the Navy and to amend Ordinance 3053A to 63 substitute the Revised Summary of Terms attached hereto, which includes the survey 64 covenant and a revised property description based on the new survey. 65 66 67 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 68 VIRGINIA BEACH, VIRGINIA: 69 7 0 1. The City Manager is hereby authorized to execute the Exchange Agreement in 71 accordance with the Amended Summary of Terms attached hereto as Exhibit A and 72 made a part hereof, as it may be modified or amended to include other terms and 73 conditions deemed necessary and sufficient by the City Manager and in a form deemed 7 4 satisfactory by the City Attorney; and 75 76 2. Except as modified on the Amended Summary of Terms, Ordinance 3053A shall 77 remain in full force and effect. 78 79 This ordinance shall be effective from the date of its adoption. 80 81 Adopted by the Council of the City of Virginia Beach, Virginia, on the 8 2 day of , 2010 83 84 85 86 87 88 CA 11225 \\vbgov.com\dfsl Wppliptions\citylawprod\cyoom32\wpdocsW011 \p0pT0003ggg3.doc R-1 February 25, 2010 APPROVED AS TO CONTENT ~. o Public Works APPR D AS TO CONTENT Pazks Re anon APPROVED AS TO LEGAL SUFFICIENCY ~~~ ~~ ity A[tto~ney's'dffice EXHIBIT A AMENDED SUMMARY OF TERMS MARSHVIEW EXCHANGE CITY - U.S. EXCHANGE AGREEMENT FOR MARSHVIEW PROPERTY Parties: United States of America, acting by and through the Commanding Officer, Naval Facilities Command, Mid-Atlantic, (the "Navy") and City of Virginia Beach (the "City') Transaction: The U.S. will exchange the Marshview Parcels for the ITA Easement, each as described below Property: Marshview Parcels: All that certain 98.664 acres of land, more or less, owned by the United States of America, located east of Birdneck Road and the Salt Marsh Point neighborhood in the City of Virginia Beach, identified as Parcels One through Eleven on Sheet 5 as more particularly depicted on Sheets 1-4 of that certain plat entitled PLAT SHOWING PROPERTY TO BE ACQUIRED FROM UNITED STATES OF AMERICA DEPARTMENT OF THE NAVY BY THE CITY OF VIRGINIA BEACH FOR CIP 4-004 VIRGINIA BEACH, VIRGINIA," dated March 17, 2009 and sealed by the surveyor Donald W. Shackelford on February 11, 2010, as said plat may be further revised. The property is further described as any interest the Nary may have in GPINs: 2417-63-8556; 2417-73-1546; 2417-63-8455; 2417-73-0186; 2417-73-4027; 2417-72-1866; 2417-72-4866; 2417-82-0890; 2417-62-5690; 2417-62-9740; 2417-72-4771; 2417-72-9577; 2417-62-5475; 2417-62-8462; 2417-72-4423; 2417-72-9477; 2417-62-5179; 2417-62-8177; 2417-72-4128; 2417-72-9178; 2417-61-5907; 2417-61-8978; 2417-71-5918; 2417-61-7659; 2417-71-3734; 2417-71-4742; 2417-71-4942; 2417-71-9838; 2417-81-0879; 2417-81-1611; 2417-81-2549; 2417-81-3504; 2417-81-3407; 2417-81-8250; 2417-81-7439; 2417-81-7518; 2417-81-6663; 2417-73-6469; 2417-62-1142; 2417-81-1567; 2417-81-6320; 2417-81-7377; 2417-81-5865; 2417-81-6078 Together with any interest the Navy may have in any rights-of-way, roads, or easements of any description, included within, adjacent to or benefitting said Property. Exchange: The Marshview Parcels will be conveyed to the City by Quitclaim Deed in exchange for a restrictive easement over City-owned property located in the ITA. The City property to be subject to the easement is located on Salem Road and was acquired by deed dated March 23, 2007, and recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach as Instrument No. 20070515000660610 (hereinafter, the "ITA Easement"). The ITA Easement will be conveyed in the form of the Grant of Easement previously agreed to by the Parties, which was attached as an exhibit to the Multi-Year Agreement By and Between the United States of America and City of Virginia Beach, executed September 27, 2007. Purchase Price: Like-kind exchange of Marshview Parcels for the ITA Easement. Use Restrictions on Marshview Parcels: The quitclaim deed conveying the Marshview Parcels to the City will reserve to the United States a perpetual easement and rights as follows: 1. Restricted Uses. All uses and activities, except for Limited Recreational Uses as defined herein, are prohibited. The term "Limited Recreational Use" shall include all passive recreational uses and permitted active recreational uses as follows: a. Passive Recreational Use. The term "Passive Recreational Use" means leisure activities such as, but not limited to, walking, jogging, hiking, wildlife observation, children's play areas, dog parks, general public recreation, fishing and the use of non-motorized watercraft, such as canoes and kayaks. b. Permitted Active Recreation Use. The term "Permitted Active Recreational Use" means recreational activities, such as practices and non-programmed participation, in ball field and court sports by the general public; non-motorized, wheeled activities, such as skateboarding, rollerblading/skating and bicycling. 2. Activities and Uses Exaressly Prohibited. The authorized use of the Property, described in Paragraph 1 above, shall not involve any of the following: a. Human Habitation: Human habitation, including but not limited to, temporary accommodations such as cabins, trailers, recreational vehicles, and tents. b. Programmed Activities: Team play or spectator sports, where the public is invited to view sporting activities such as games. Team practices and "pick up" games are permitted as a Permitted Active Recreation Use. c. Visual Hazards: Activities of any type that produce smoke, glare or other visual hazards; however, charcoal grills are permitted. d. Encouragement of Concentrations of Birds: Activities of any type that encourage concentrations of birds, such as bird feeding stations and ponds. 2 e. Dum°ing: Other than trash cans necessary to serve participants in Limited Recreational Use, the dumping of garbage is prohibited. This includes, but is not limited to, landfills, disposal, composting, recycling, burying, storage, or processing of garbage or waste materials. f. Other Prohibited Uses: Golfing; horseback riding; recreational campgrounds or marinas. 3. Improvements and New Construction Construction or improvements to the Property are prohibited except those necessary for or incidental to Limited Recreational Use as defined in herein. The following requirements and prohibitions apply to Limited Recreational Use construction and improvements: a. Height Restrictions. The erection, construction, installation, alteration of any structure, building, or other educe extending above 35 feet above sea level is prohibited. Trees shall not extend more than 150 feet above sea level. b. LiQhtino Prohibited. External lighting is prohibited. This includes, but is not limited to, lighted baseball or softball fields; lighted tennis courts; lighted basketball courts; lighted recreation areas; and lighted football or soccer fields. c. Permitted Improvements Incident to Limited Recreational Use Improvements and/or buildings necessary for or incidental to Limited Recreation Use as defined in Paragraph 1, are permitted, including but not limited to the following: i. picnic shelters; ii. gazebos, such as covered overlooks; iii. playgrounds; iv. dog parks; v. skate parks; vi. benches; vii.water fountains; viii. charcoal grills; ix. fences and restrooms; x. trails, walkways, vehicular access roads; xi. parking areas; xii.piers for fishing and non-motorized watercraft; xiii. park management ,maintenance and storage facilities; and xiv. Installation of public utilities, storm water.management facilities and water control structures are permitted to a scale that are designed and constructed only to serve the improvements that are permitted as listed above or otherwise control flooding on the subject Property. d. Meeting Places are prohibited The following improvements are prohibited: i. Clubhouses, meeting places, auditoriums, classrooms, game bleachers and similar facilities, except that small-scale bleachers for parents to view practices are permitted; ii. public utility substations; iii. public dredging operation staging areas; iv. borrow pits; v. watershed; vi. water reservoirs; vii. storm water management facilities and water control structures other than as noted in paragraph 3(c); viii. fish hatcheries or man-made ponds. 3 The U.S. shall have the right, by and through their agents and employees, to enter the Property at all reasonable times, with forty-eight (48) hours' prior notice to the Grantee, and for the purposes of determining compliance with the terms of this instrument. 4 New/Added Terms Survey Covenant In Quitclaim Deed on Marshview Parcels: The deed conveying the Marshview Parcels to the City will include a perpetual covenant by the City accepting responsibility for preserving and protecting any as yet undiscovered archaeological sites, to include the following responsibilities and any additions of similar responsibilities or modifications as may be required by the Navy and determined to be necessary and proper by the City Manager and in a form deemed sufficient by the City Attorney: 1. Notify and provide a written project assessment (to include any required archaeological survey) to the Virginia State Historic Preservation Office ("SHPO") prior to undertaking any ground- disturbing activities below the historic plow zone (defined as 6 inches below ground surface); 2. Take reasonable measures to avoid or minimize effects to any identified significant archaeological resources that will be affected by a project; 3. Prohibit disturbances to any archaeological site or object and provide expedited (within 1 day) review by a qualified archaeologist, if any such disturbance has occurred; and 4. Mitigate damage, restore site and report completed mitigation of any disturbance of a significant archaeological site, all in coordination with SHPO. 5 ~+rf'~: qty r°~ h~ ~5: s~ ,. _,~,~,. ,-<1 ~.~~.~~ CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance Authorizing the City Manager to Sign an Agreement between the City of Virginia Beach and Virginia Gentlemen Foundation, Incorporated for Construction and Dedication of Grommet Park, and Accepting a Donation of Artwork to be Installed on the Boardwalk Near First Street MEETING DATE: March 9, 2010 ^ Background: Virginia Gentlemen Foundation, Incorporated is a 501 (c)(3) non- profit corporation ("VGF') that has proposed to construct and dedicate JT's Grommet Island Beach Park and Playground ("Grommet Park") to the City of Virginia Beach ("City"). The concept for Grommet Park was developed by Virginia Beach businessman Bruce Thompson in response to the need for afully-accessible playground for persons with disabilities in an area that is especially challenging for persons with disabilities to access -the beach. City Council was briefed on Grommet Park on August 25, 2009. Grommet Park will be approximately 15,000 square feet in size, with a concrete slab base and a soft, poured-in-place finished surface with a perimeter boardwalk and walkways extending into the beach, covered by a synthetic shade canopy. The location for Grommet Park was selected through a joint recommendation by Councilman John Uhrin and Mr. Thompson. Grommet Park is estimated to cost in excess of one million dollars to construct. The construction costs for Grommet Park will be paid for by VGF. The City will have no responsibility for any construction-related costs for Grommet Park. VGF has also offered to donate to the City a sculpture known as the Anticipation Statue. The sculpture is approximately ten (10) feet in height, eleven (11) feet wide, eight (13) feet deep, and weighs approximately fourteen thousand (14,000) pounds. It is cast in bronze, and is valued at thirty thousand dollars ($30,000) by VGF. VGF has agreed to pay for installation. ^ Considerations: The City and VGF negotiated an agreement to construct Grommet Park on City property, and to dedicate Grommet Park to the City by July 1, 2010. The City has no responsibility for any construction-related costs for Grommet Park. The agreement contains no provision for maintenance of Grommet Park. The Department of Parks and Recreation is seeking funding for maintenance through the City's budget process. The following City Council-appointed commissions and committees have endorsed Grommet Park: Mayor's Committee for Persons with Disabilities, Resort Advisory Commission, and the Arts and Humanities Commission's Public Art Committee at public meetings. Per Administrative Directive 6.06, the Public Art Committee of the Virginia Beach Arts and Humanities Commission reviewed the sculpture donation proposal. After review and discussion with City staff, the Virginia Beach Arts and Humanities Commission recommended that the City of Virginia Beach accept the sculpture. The sculpture will be installed on the boardwalk near the 1 Sc Street landing area adjacent to the Rudee Inlet jetty. ^ Public Information: Public Information will be provided through the normal process of advertising the Council's agenda. ^ Attachments: Ordinance, Summary of Terms, Rendering of Anticipation Statute, Letter of Endorsement from Arts and Humanities Commission for Anticipation Statute. Submitting Department/Agency: Department of Parks and Recreation City Manager: n~ ~ . ~.k. 1 ~ lJ~ ~r 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO SIGN AN AGREEMENT BETWEEN THE CITY OF VIRGINIA BEACH AND VIRGINIA GENTLEMEN FOUNDATION, INCORPORATED FOR CONSTRUCTION AND DEDICATION OF GROMMET PARK, AND ACCEPTING A DONATION OF ARTWORK TO BE INSTALLED ON THE BOARDWALK NEAR FIRST STREET WHEREAS, the City of Virginia Beach ("City") and Virginia Gentlemen Foundation, Incorporated ("VGF") wish to enter into an agreement to construct a handicap accessible oceanfront playground called JT's Grommet Island Beach Park and Playground for EveryBODY ("Grommet Park"); and WHEREAS, Grommet Park will be located on the sandy beach owned by the City between 1St and 2"d Streets; and WHEREAS, Grommet Park will include accessible play systems to accommodate use by all children, accessible beach seating, sculptures, play surfaces, beach wheelchairs, canopies, ramps, and decks; and WHEREAS, VGF will be responsible for all construction costs related to Grommet Park, and the City shall have no responsibility for any construction costs related to Grommet Park; and WHEREAS, after completion of construction, VGF will dedicate Grommet Park to the City; and WHEREAS, Grommet Park is scheduled to open to the public in July 2010; and WHEREAS, VGF has offered to donate to the City a sculpture known as the Anticipation Sculpture; and WHEREAS, the sculpture is approximately ten (10) feet in height, eleven (11) feet wide, and eight (8) feet deep, and is cast in bronze; and WHEREAS, VGF has agreed to pay for the installation; and WHEREAS, pursuant to Administrative Directive 6.06, the Public Art Committee of the Virginia Beach Arts and Humanities Commission ("VBAHC") reviewed the proposed sculpture donation; and WHEREAS, after review and discussion with City staff, the VBAHC recommended that the City accept the sculpture; and WHEREAS, the sculpture will be installed on the boardwalk near the 1St Street landing area adjacent to the Rudee Inlet jetty. 50 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 51 VIRGINIA BEACH, VIRGINIA: 52 53 (1) The City Manager is hereby authorized and directed to execute the Agreement, 54 on behalf of the City of Virginia Beach, with Virginia Gentlemen Foundation, 55 Incorporated for the construction and dedication of Grommet Park. 56 57 (2) The City Council hereby accepts the donation of artwork entitled "Anticipation 58 Statue" from Virginia Gentlemen Foundation, Incorporated and directs that such artwork 59 be installed on the boardwalk near the 1St Street landing area adjacent to the Rudee 60 Inlet jetty. 61 62 Adopted by the Council of the City of Virginia Beach, Virginia on the day 63 of , 2010. Approved as to Content: ~~~ ParlSs~~a ecreati CA11439 February 24, 2010 R-3 Approved as to Legal Sufficiency: City Attorney's Office 2 SUMMARY OF TERMS Agreement between the City of Virginia Beach and Virginia Gentlemen Foundation, Incorporated for Construction and Dedication of Grommet Park ("Agreement") Parties: City of Virginia Beach ("City") Virginia Gentlemen Foundation, Incorporated ("VGF") Purpose: To memorialize the rights and responsibilities of each party with respect to JT's Grommet Island Beach Park and Playground for EveryBODY ("Grommet Park"), to be located on sandy beach owned by City between 1s1 and 2"~ Streets. Term: Agreement commences upon execution, and continues until the dedication and acceptance of Grommet Park. VGF's Responsibilities: • Cause design plans to be prepared for Grommet Park. • Obtain all permits necessary to construct Grommet Park. • Complete construction of Grommet Park in good and workman-like fashion. • Responsible for all construction costs related to Grommet Park. • Dedicate Grommet Park to the City. • Secure and maintain insurance during construction phase. • Any costs associated with violations of environmental laws will be paid by VGF. City's Responsibilities: • No responsibility for construction costs related to the Grommet Park. • Provide written acceptance of Grommet Park (dedication). Other Terms: • The agreement contains no provision for maintenance of Grommet Park. • Replacement: No obligation for either party to replace or rebuild Grommet Park in event of fire, flood, earthquake, hurricane, etc. destroys Grommet Park. • City has sole discretion to relocate Grommet Park, at City's expense. • Indemnification- VGF to indemnify and hold City harmless • Modification: MOA may only be modified by writing, executed by both parties. N1~ "~it~ u Z wis+ d~ ~ ~` CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance Authorizing the City Manager to Execute a Lease for One Year with E.R. Cockrell, Jr. for 14.5 Acres of City-Owned Property Located Near the Southwestern Corner of West Neck Road and the Future Nimmo Parkway (Portion of GPIN 1494-51-5393) MEETING DATE: March 9, 2010 ^ Background: Mr. E.R. Cockrell, Jr. has been farming City-owned land located near the southwestern intersection of West Neck Road and the future Nimmo Parkway (Portion of GPIN 1494-51-5393) pursuant to the terms of a lease with the City originally executed in 2004. The 2004 lease has expired, and Mr. Cockrell wishes to continue farming on the property pursuant to a new lease with the City. ^ Considerations: This term of the new lease would be one year, with four options to renew equal to one year each. The City has the right to terminate the lease upon ninety (90) days' written notice. For more specific terms, see attached Summary of Terms. ^ Public Information: Advertisement of Public Hearing Advertisement of City Council Agenda ^ Alternatives: Approve the terms of the Lease Agreement as presented, change conditions of the Lease Agreement or deny leasing of the subject property. ^ Recommendations: Approval ^ Attachments: Ordinance Summary of Terms Location Map Recommended Action: Approval Submitting Department/Agency: Management Servi Facilities Management Office City Manager: ~ j C~ Q ~ ~- 1 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO 2 EXECUTE A LEASE FOR ONE YEAR WITH E. R. 3 COCKRELL, JR. FOR 14.5 ACRES OF CITY-OWNED 4 PROPERTY LOCATED NEAR THE SOUTHWESTERN s CORNER OF WEST NECK ROAD AND THE FUTURE 5 NIMMO PARKWAY (PORTION OF GPIN 1494-51-5393) 7 8 WHEREAS, the City of Virginia Beach (the "City") is the owner of 14.5 acres of 9 land located near the southwestern corner of West Neck Road and the future Nimmo 1o Parkway (portion of GPIN 1494-51-5393) (the "Premises"); 11 12 WHEREAS, E. R. Cockrell, Jr. is the current tenant of the Premises pursuant to 13 the terms of snow-expired lease with the City originally executed in 2004; 14 1s WHEREAS, Mr. Cockrell desires to enter into a new lease with the City for the i6 Premises; 17 1s WHEREAS, Mr. Cockrell will continue to use the Premises for agricultural . 19 purposes and for no other uses; 20 21 WHEREAS, the term of the lease will be for one year, with four options to renew 22 of one year each; and 23 24 WHEREAS, Mr. Cockrell has agreed to pay $250 per year for the use of the 25 Premises for the first year of the term, with rental amounts being subject to negotiation 25 for each exercised renewal. 27 28 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 29 VIRGINIA BEACH, VIRGINIA: 30 31 That the City Manager is hereby authorized to execute a lease for a term of one 32 (1) year, with four (4) options to renew of one (1) year each, between E. R. Cockrell, Jr. 33 and the City, for the Premises in accordance with the Summary of Terms attached 34 hereto and made a part hereof, and such other terms, conditions or modifications as 35 may be acceptable to the City Manager and in a form deemed satisfactory by the City 36 Attorney. 37 38 Adopted by the Council of the City of Virginia Beach, Virginia on the day of 39 , 2010. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY AND FORM: Manage nt Services City Attorney's Office CA11232 \\vbgov.com\DFSt WpplicaGons\CityLawProdlcycom32\Wpdocs\D006\POO6W0037938.DOC R-1 February 25, 2010 SUMMARY OF TERMS Lease with E.R. Cockrell, Jr. fora 14.5 acre City-owned lot located near the southwestern corner of West Neck Road and the future Nimmo Parkway LESSOR: City of Virginia Beach LESSEE: E.R. Cockrell, Jr. PREMISES: 14.5-acre lot located near the southwestern corner of West Neck Road and the future Nimmo Parkway in Virginia Beach, Virginia (a portion of GPIN 1494-51-5393) TERM: 12 months: January 1, 2010 through December 31, 2010, with four options to renew of one year each RENT: $250 per year for the first year of the term, with rental amount to be subject to negotiation for any exercised renewal term RIGHTS AND RESPONSIBILITIES OF LESSEE: • Use Premises solely for agricultural purposes. • Maintain Premises. • Purchase commercial general liability insurance in an amount not less than $200,000 combined single limits. RIGHTS AND RESPONSIBILITIES OF CITY: • Reserve the right to grant easements and dedicate public rights-of-way across or upon the Premises for streets, alleys, public highways, drainage utilities, telephone, telegraph and cable transmission lines, pipelines, irrigation canals and similar purposes. • Reserve the right to enter upon the Premises without notice to Lessee in emergency situations. TERMINATION: City may terminate the Lease for any reason by giving ninety (90) days' written notice. In such event, if Lessee's crops have not been harvested, all rent paid in advance will be refunded to Lessee. LOCATION MAP / ~ /' ~ r . i ~ ~ ~ / ~ ~ ~ / ~ ~ ~ ~~ ~ ~ ~ .. .. N% • ~.. / ~ ~ . ... GPIN 1494-51-5393 ~~' I ~, ,~ ~ . 9 r6 ~ ~`y~ J~ `~~\\\ O 0 . ~ 1 ~` ~ O . ~ ~ oo ~~ ~ r 0 -o ,~ ~ - ~ ~ o \ °b ~°° °~ °~ ° ° ~ O °O ° o ° / (~ ~.p O~ O ° ~pr / ~° ~~~~°° ~~ EXHIBIT. "A" '° ,% ° 14.5 ACRES OF FARM LAND TO BE LEASED TO ° E.R. (DICK) COCKRELL, JR. °° BY THE CITY OF VIRGINIA BEACH ~~ ~ SCALE : 1 " = 400' ° ~ °~ °< COCKRELL.DGN M.J.S. ° °o PREPARED BY Pi1N ENG. CADD DEPT. MAR('N ~nn~ S1 u+u; N~l~r v ~,p !U i5, ,~._.ii ~4~ ' ~~ CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: A Resolution Supporting the Nomination of the Bayfront Advisory Committee and the Shore Drive Community Coalition for the 2010 Governor's Transportation Safety Awards MEETING DATE: March 9, 2010 ^ Background: The Governor's Transportation Safety Awards recognize individuals and organizations who have made contributions to transportation safety in Virginia. The awards are sponsored by the Virginia Board of Transportation Safety, comprised of citizens appointed by the Governor. All nominations for the 2010 awards must be postmarked by March 12, 2010. The Bayfront Advisory Committee and the Shore Drive Community Coalition worked on projects in 2009 to raise public awareness of the need for all roadway users to exercise alertness, skill and courtesy, and sought near and long term traffic safety improvements along the Shore Drive Corridor including speed limits, cross walks, and bicycle facilities. These organizations encourage and inspire community based solutions and raise public awareness for motorists, bicyclists and pedestrians using Shore Drive to share it safely. ^ Considerations: The attached resolution supports the nomination of the Bayfront Advisory Committee and the Shore Drive Community Coalition for the General Traffic Safety Award and E. Wallace Timmons Award for Pedestrian/Bicycle Safety. ^ Public Information: Public information will be provided through the normal Council agenda process. ^ Attachments: Resolution Requested by Councilmember DeSteph, Vice Mayor Jones, and Councilmember Wood 1 Requested By Councilmember DeSteph, Vice Mayor Jones, and Councilmember 2 Wood 3 4 A RESOLUTION SUPPORTING THE NOMINATION 5 OF THE BAYFRONT ADVISORY COMMITTEE AND 6 THE SHORE DRIVE COMMUNITY COALITION 7 FOR THE 2010 GOVERNOR'S TRANSPORTATION 8 SAFETY AWARDS 9 10 WHEREAS, the Shore Drive Corridor in Virginia Beach is a major part of the 11 City's transportation network supporting well over 20,000 average daily trips over its 12 eleven mile length; and 13 14 WHEREAS, Shore Drive is settled by a large number of single family homes, 15 apartments, condominiums, hotels, retail businesses, the military, and industry; and 16 17 WHEREAS, the beaches and parks along Shore Drive are major attractors for 18 the recreational pursuits of residents and visitors; and 19 20 WHEREAS, Shore Drive has experienced a significant number of motor vehicle, 21 bicycle, and pedestrian crashes in recent years, often with tragic results; and 22 23 WHEREAS, the Bayfront Advisory Committee is a Council appointed committee 24 serving the Bayfront community, which includes the Shore Drive Corridor; and 25 26 WHEREAS, in 2009, the Bayfront Advisory Committee facilitated the reduction of 27 the speed limit in a hazardous portion of Shore Drive and worked with City staff to 28 implement the provisions of the Shore Drive Safety Task Force; and 29 30 WHEREAS, the Shore Drive Community Coalition, which was established in 31 2001, worked diligently and effectively with the City during 2009 to improve traffic safety 32 conditions for all users of Shore Drive; and 33 34 WHEREAS, the Shore Drive Community Coalition through its Shore Drive Safety 35 Initiative '09 did raise substantial public awareness of the need for all roadway users to 36 exercise alertness, skill and courtesy, and sought near and long term traffic safety 37 improvements in speed limits, cross walks, and bike facilities. 38 39 NOW, THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY 40 OF VIRGINIA BEACH, VIRGINIA: 41 42 1. That the Mayor and City Council take great pleasure in nominating the 43 Bayfront Advisory Committee and the Shore Drive Community Coalition for 44 the 2010 Governor's Transportation Safety Awards in the categories of 45 General Traffic Safety and Bicycle-Pedestrian Safety; and 46 47 2. That the City Clerk is requested to submit, on behalf of the Mayor and City 48 Council, a nomination package to the Virginia Board of Transportation Safety 49 prior to the March 12, 2010 deadline. Adopted by the City Council of the City of Virginia Beach, Virginia, on this day of , 2010. Approved as to Legal Sufficiency ~~~ . City Attorney's Offic CA11442 R-5 March 3, 2010 ~rsnlutinn RESOLUTION SUPPORTING THE NOM/NATION Of THE BAYfRONT ADVISORY COMMITTEE AND THE SHORE DRIVE COMMUNITY COALITION fOR THE 2010 GOVERNOR'S TRANSPORTATION SAfETYAWARDS WHEREAS: The Shore Drive Corridor in Virgrnia Beach is o major port of the City's transportation network supporting well over 20,000 average doily [rips over Its a/even mile length; WHEREAS: Shore Drive is settled by o large number of single family homes, apartments, condominiums, hotels, retail businesses, the military and industry. The beaches and parks o/ong Shore Drive are major ottrot7ors jar the recreational pursuits of residents and visitors; WHEREAS: Shore Drive has experienced a significant number of motor vehicle, bicycle and pedestrian crashes in recent years, often with tragic resuhs; WHEREAS: The Boyfront Advisory Committee and the Shore Drive Community Coalition, established in 2001, has worked diligently and effectively with the City during 2009 to improve traffic safety conditions for all users ojShore Drive; and, WHEREAS: The Boyfront Advisory Committee and the Shore ONve Community Coalition, through its Shore Drive Safety Initio[ive '09, did raise substantial public awareness of the need jar all roadway users to exercise alertness, skill, courtesy and sought near, os well as long term, traffic safety improvements in speed limits, cross walks and bike facilities; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGlN1A: That the Mayor and Members of [icy Council take great pleasure in nominating the eoyjront Advisory Committee and the Shore Drive Community Coalition for the 2010 Governor's Transportation Safety Award in the categories of General Troffc Safety and Bicycle-Pedestrian Safety. BE IT FURTHER RESOLVED: That the Mayor will submit o Nomination Package to the Virginia Board of Tronsportotion Safety within the Commonwealth of Virginia's Deportment of Motor Vehicles under the guidelines jar this Award. Rita Sweet Be/litto - At large William R. Bill" DeSteph -At Large Robert M. 'Bob" Dyer - Centerville District 1 Louis R. /ones - Bayside District 4 -Vice Mayor Rosemary Wihon -At Large Glenn R, Davis -Rose Hall District 3 Harry E. Diezel - Kempsville District 2 Barbaro M. Henley -Princess Anne District 7 John E. irhrin -Beach District 6 Iarnt : L Jim" Wood - Lynnhoven District S William D. "Will" Sessoms - Mayor ~~ U °F ou''~t1°,.1 City of Virgiriia Beac~i VBgov.com WILLIAM D. SESSOMS, JR. MAYOR Ms. Audrey Odum Department of Motor Vehicles Commonwealth of Virginia Post Office Box 27412 Richmond, Virginia 23269-0001 10 March 2010 Re: Governor's Transportation Safety Awards Program Dear Ms. Odum: MUNICIPAL CENTER BUILDING 1 2401 COURTHOUSE DRIVE VIRGINIA BEACH, VA 23456-9000 (757) 385-4581 FAX (757) 385-5699 wsessoms®vbgov.com It is with great pleasure that I nominate the Bayfront Advisory Committee and the Shore Drive Community Coalition (SDCC) of Virginia Beach for this year's Governor's Transportation Safety Award [jointly) in the categories of General Traffic Safety and PedestrianBicycle Safety. The Bayfront Advisory Committee was established by City Council appointment November 28, 2006, to serve as the liaison between the Shore Drive Community and the governing body with specific duties and responsibilities. The Coalition was formed more than a decade ago and represents approximately thirty [30] Civic Leagues and Community Associations along the eleven mile Shore Drive Corridor of Virginia Beach. The Committee and this widely based Coalition continue to seek solutions for area improvements through the mutual collaboration with the City of Virginia Beach. One continuing principle objective has been to improve the safety along the Shore Drive Corridor for the community and its residents. By drawing upon the diversified backgrounds and talents of its engaged civic-minded residents, many issues have been effectively resolved directly improving the quality of life and safety for our residents and visitors throughout the City. With approximately twenty-five [25] percent of the City's population, Shore Drive supports over 20,000 average daily trips by car, and is used extensively by pedestrians and bicyclists traveling to and from beach and numerous park areas along the Chesapeake Bay. As one of the most heavily traveled routes in the City, Shore Drive has also been the site of numerous accidents, incurring a tragically high number of motor vehicle, bicycle and pedestrian fatalities over the past twenty [20] years. During 2009, the Advisory Committee and SDCC heavily promoted improved traffic safety measures for all users of Shore Drive through a number of key initiatives. These include: • The Shore Drive Safety Initiative 2009 (,SDSI `09) assessed and informed the citizens and businesses along Shore Drive on current traffic safety concerns, forged a community consensus for viable near and long term improvements, and continues to work with the City in the implementation of these improvements. Among their accomplishments: o Organized into three subcommittees; traffic, pedestrian and cyclist o Historic problem areas were identified, analyzed and then solutions were sought through a number of meetings between the SDSI Committee, traffic engineering, police and other City officials o Identified bike and pedestrian safety deficiencies along a curved one mile section of Shore Drive. Shoulder improvements are now underway as an interim measure and median improvements are being examined. o Collected historical data for a specific road where a high frequency of accidents had occurred for vehicles exiting the neighborhood onto Shore Drive. Made an excellent technical case for how lowering the speed limit to 35 mph would help reduce these accidents as well as create a better safety margin for residents crossing to and from nearby beach areas o Using a variety of communication methods, kept 13,000 residents informed on traffic safety concerns, the options available to remedy and forged a community consensus in support of a lower speed limit. An SDCC sponsored survey of over 700 residents in August showed an impressive 85% agreement with the proposed measures including the lowered speed limit • The Bayfront Advisory Committee and the Shore Drive Community Coalition encourage and inspire community based solutions. A member of the SDCC Board helped found an idea entitled `Share Shore Drive Day". The principal goal is to raise public awareness for motorists, bicyclists and pedestrians using Shore Drive to share it safely • Established and continues to maintain a Public Forum where residents can receive up-to-date information on roadway construction plans, significant crashes, long term trends and efforts to bring about safer traffic conditions as well as share concerns and disagreements The Bayfront Advisory Committee has worked diligently with the Shore Drive Community Coalition to provide an overview of the community group along with copies of newspaper and newsletter articles. SDCC has led initiatives that are reiterated in these subsequent pages. Thank you for your consideration. Sincerely, William D. "Will" Sessoms F, ~OMMONWE~LT~I CAF V~~R.GINIA F j. ~5 FZ J Y ~ }} f,~. i ~ ^. E '} r ~~ .F i .y ~ < i. h 4r.A t f~ •~ ~•~~ aTF. ~. j ~ ~ # *. x, v ~'` R ' ',! ` ~, ~A '.Yr G ~ ~~" ,SF s~~~1 iV~~. ~ ~ f w i;~e S~yp "~ ~' ~ t 1 1 • • •• • . ~ ' ~ :_~, , i Y ~.~ -t r :~.~ ~' ~['.. ~` .~ Virginia Department of Matar Vehicles ~- `Virginia Highway Safety:::. tfice -~~ ,, k ., , CC?MMONWEALTH OF VIRGINIA 2010 ~.~rOVERNOR'S TRAN~PC~RTATION SAFETY AWARDS The Governor`s Transportation. Safety ~< Awards recognize inditeduals and organizations who have made contributions to transportation safety in Virginia. The awards recognize accflmpllshments in the public and private sector by individuals, state and, fecal gavernrrtents, federal agencies, the military, businesses and organizations that promote transpart~~tian safety The awards are ripen to any arson or organization whc~ performs an outstanding transportation safety activityar .program daring the previous calendar year. `Fi~tis program is sponsored by the Virginia. ward of Transportation Safety, carnprised f 't' d b h G RULES Eligibility: Any individua{, organization, business or govern- ment agency is eligible. The nominee must have made an outstanding effort to change the attitudes and behaviors of motorists leading to the reduction of crashes, injuries and fa- talities associated with transportation in the Commonwealth of Virginia. Time Frame: Activities and programs must have taken place during calendar year 2009. Entries must be postmarked no later than March 12, 2010. Mail entries to the Governor`s Transportation Safety Awards, c/o Audrey Odum, Room 617, Post Office Box 27412, Richmond, Virginia 23269-0001. Criteria for Selection: The awards selection wiU be made by the Virginia Board of Transportation Safety. Entries will be judged on impact on the community; use of volunteers and private sector resources; creativity; imagination; and- uniqueness. Notification: Winners will be notified. in May 2010. Presentation: Awards will be pre~nted by the Virginia Board of Transportation Safety in June 2010. NOMINATION INSTRUCTIONS a cr ~zens appointe y t e overnor of Complete the nomination form on the following page. Virginia., Inctude with your nomination form the foHowin Awards will be presented from nantinations submitted in each category far individual andlor group accomplishments, majnr projects and outstanding programs. Send all entries to the Governor`s TranspQrtatianSafety Av~r°ards, c/a t~udrey Odum, Room 617, Past Office Box 27412, Richmond, Virginia 23269-0001, Entries must be postmarked by March 12, 2A10. g information in no more than six pages: 1. A brief description of the program. ` 2. Background information. on the program. Why did it occur and what made it uniquei' Include any relevant statistics on what problems existed and what you wanted ~' to accomplish. 3. Outstanding elements and accomplishments in the program (e.g., number of persons trained). 4. Approximate number of people impacted by the activity or program (e.g,, project provided 1(}0 free rides during New Years; program reached 10,000 teens statewide). 5. Describe any public/private resources used to implement ; the program (e.g., services, materials and/or funds raised t or donated). 6. De~ribe haw volunteers were used in the program (e.g., 100 fire and rescue personnel volunteered to inspect child safety seats). 7. Submit the on final and three co pies of the completed nomination form and supporting documentation. Please r do not send video tapes, CDs/diskettes or photographs. Virginia Department of Motor Vehicles ~ Virginia Highway Safety Office AWARD CATEGORIES A Lifetime Safety Achievement Presented for lifetime achievement in the area of transportation safety. Awarded to, Captain G. Howard Gregory (Retired), Virginia State Police. W. Calvin Falwell/Major Kenneth Rowe N D 20Cl~? AWARI} WINNERS Edgar P. Layman, jr. Award for Motor Carver Safety Presented for contributions in furthering the safety of the motor carrier industry through educational programs and activities. Awarded to Houff Transfer, Inc., Weyers Cave, Virginia. Award for Aviation Safety Presented for promoting air safety. Awarded to Michael Mills, Virginia Department of Motorcycle Safety Presented for persons educating motorists Aviation. and motorcyclists about motorcycle safety. Awarded to William "Doc" Brooks, III, Employer Safety Motorcycle Safety Center of Virginia. Presented for employers who take the extra initiative to promote traffic safety and Uccupant protection encourage their employees to practice Presented far promoting and encouraging safe driving behaviors. Awarded to The p; the u~ of safety behs and/ar child safety , t, Lynchburg Ctffice of Appalachian Power seats through creative and innovative Company. programs and activities. Awarded to Sergeant Chris Rinker, New Market Police General Traffic Safety Department Presented for outstanding efforts in - educating citizens and changing attitudes E. Wallace Timmons Award for and behaviors regarding transportation safety. Individuals/organizations Pedestrian/Bicycle Safety Presented for encouraging safe walking and demonstrating exemplary achievement bicycling. Awarded to Town of Blacksburg J. in the design, development and/or Blacksburg Transit / Kim irk. implementation of engineering techniques that reduce crashes on Virginia's highways Public Transportation Safety ` wit! also be considered for this award.. Presented for contributions made in Awarded to Albemarle County Police educating drivers oral riders about safety ,,~, Department,. on public transportation: No 2009 nom inatians. Empaired Driving Presented for encouraging the prevention Pupil Transportation Safety of drunk and/or drugged driving. Awarded .Presented for encouraging, educating and w Harrisonburg Police Department promoting safety in pupil transportation thus improving safety for drivers and Law Enforcement riders. Awarded to Christiansburg Police Presented to law.enforcement personnel Department. taking extra initiative to promote and encourage safety in their community. Awarded to Vicky tones, Buchanan County Rad Safety Presented for promoting safety on freight Sheriff's Office. and/ar passenger rail systems. No 2009 Legal Presented to attorneys or judges who actively support safety issues thus strengthening existing laws and creating new laws. Awarded to H. Lee Harrell, Wythe County deputy Commonwealth's Attorney. Media Presented to media representatives or a news outlet helping to spread the word about traffic safety through fair and accurate reporting or programming. Awarded to Lindsey Roberts, WVEC TV 13. nominations. Water Safety Presented for contributions made in improving safety for swimmers, boaters and fishermen. Awarded ^Go Robert N. Swinson, Virginia Department of Game and Inland Fisheries.. Youth Traffic Safety Presented far persons or programs educating youth and spreading the message on the importance of youth traffic safety. Awarded to "The ART of Driving", Fairfax, Virginia. COI~iMONWEALTH OF VIRGINIA 2010 GOVERNOR'S TRANSPORTATION SAFETY AWARDS Nomination Form i AWARD CATEGORY General Traffic Safe PERSON(S)/ORGANIZATION(S) NOMINATED Bayfront Advisory Commission Shore Drive Communi Coalition STREET/MAILING ADDRESS Post Office Boz 55254 CITY STATE ZIP CODE Vir inia Beach VA 23471 Submitted By: YOUR NAME Ma or and Members of Ci Council ORGANIZATION Ci of Vir inia Beach STREET/MAILING ADDRESS 2401 Courthouse Drive, Suite 281 CITY STATE ZIP CODE Vir inia Beach VA 32456 TELEPHONE NUMBER EMAIL ADDRESS 757 385-4303 rhfraser vb ov.com /~mr www.dmuN0l~l.com Virginia Department of Motor Vehicles Governor's Transportation Safety Awards c/o Audrey Odum, Room 617 Post Office Box 27412 Richmond, Virginia 23269-0001 About the Shore Drive Community Coalition Year Formed: 2001, as anon-profit Virginia Corporation Organization Composition: The Shore Drive Community Coalition is a diverse group of civic leagues, condos and community associations located along Shore Drive in Virginia Beach, VA Mission Statement/Objectives: 1. To provide a unified "Voice" for the community that will work hand in hand with the City of Virginia Beach and the Shore Drive Advisory Committee (if in existence) to better the quality of life along the Shore Drive corridor. 2. To provide proactive assessments and reactive solutions to civic issues concerning the entire Shore Drive neighborhood. 3. To organize and encourage participation in an annual local event that promotes community friendship and camaraderie. 4. To act as an effective communication tool that provides pertinent information to all of the Shore Drive corridor organizations Mail Address: P.O. Box 55254 Virginia Beach, VA 23471 Website: http://www.sdcc.info Officers: Ms. Grace Moran, President Mr. Dave Williams, Vice President Mr. Steve Kohler, Treasurer Mr. Todd Solomon, Secretary Mr. Tim Solanic, Web Communications Key Committees: Shore Drive Safety Initiative (SDSI); Chair: Mr. Dave Williams Number of member organizations: Approximately 30 Households reached: Over 13,000 Shore Drive Safety Initiative '09 Published to SDCC member organizations and Shore Drive residents in July 2009. By David Williams, Cape Henry Shores Civic Association Project Officer for SDSI '09 Monday, July 14 marked a subtle but what I think a significant date in the Virginia Beach civic calendar as 15 members of the Shore Drive Safety Initiative 2009 (SDSI'09) held their second meeting in two weeks to further develop a Plan of Action (POA) for their efforts to improve the safety along Shore Drive. I say this day is historic in that there was a subtle but perceptible shift in the atmosphere from the previous meeting on 6 July where two groups met, but both were not quite sure of the other group's motives. After more than three decades, much and varied efforts have been put into improving the safety along Shore Drive, but with limited success. Now, actual progress was being made at identifying and correcting our neighborhood's dangerous areas. While some groups see Shore Drive as a gateway to the oceanfront, other groups see this four lane road and highway as a keeper of the residential neighborhood's image. Some residents want faster commutes, while other residents want to be able to walk across Shore Drive without significantly endangering self, family and tethered canine. As a resident here, I feel that we should not be overly endangered while doing normal outdoor activities, such as walking the family to the beach. Change is difficult to achieve or accept depending on your perspective, but most agree, safety improvements are particularly needed along this section of Shore Drive. Monday's meeting brought representatives from the City and the combined interested citizen groups (Cape Henry Shores, Cape Story by the Sea, Shore Drive Community Coalition, Tidewater Bicycle Association, and Bayfront Advisory Committee together again to consider safety improvements. The Director of Public Works, Mr. Jason Cosby and Mr. Mike Shahsiah , Senior Traffic Engineer discussed possible solutions that could be implemented quickly and possible solutions that would take more study, time and funding approval. But, the key point made here by Mr. Shahsiah, was that safety improvements were doable. After listening to the residents along Shore Drive and understanding our concems, at least now the city was responding with the prospects of "doable", and not with the flat rejections as previous requests had met. We still do not have our speed limit reduction to 35 MPH from N. Great Neck Road to the entrance at First Landing State Park, but I think both the city and the residents have shared a better understanding of both the residents' safety concerns and the city's ability to implement those safety improvements. This safety effort started with some local residents, gained area support and traveled up through the offices of Vice Mayor Jones, Councilman Wood, and Councilman DeSteph who have collectively brought it into the light of city government and into the view of Mayor Sessoms. It is just such a great feeling to know that local government still works and responds with some efforts and some organization. We, the people, will get there safely. The Virginian-Pilot © July 22, 2009 VIRGINIA BEACH Motorists traveling on Shore Drive between North Great Neck Road and the entrance to First Landing State Park will have to slow down in August when the speed limit drops from 45 mph to 35 mph. The change will take place Aug. 3, but signs alerting motorists to the change will be in place beginning Wednesday, according to a news release from the city of Virginia Beach. ~I~ . ..~ ~3~ _.~°- ~~'~~: ~~~ ~~~; ...... ._ b.. __. _ , -.~., .._, ~~'iat3re 2_ _~e ~'st~ ~~.kes ~ctica F~~ure f SDSI members end city af~cia[s €~erforr~n a s~~fet1~ assessment can Staore ~ r~.: 6~ery ~~Jt}=s) Share Shore Drive Day ay Kann; ,aa~~s The Virginian-Pilot © July 12, 2009 A group of about 200 bicyclists rallied Saturday to promote making Shore Drive safer. They biked a 6-mile and 16-mile route, ending with a cookout at Kokoamos Island Bar, Grill & Yacht Club on Marina Shores Drive. The goal was to promote adding bike lanes to Shore Drive and reducing the speed limit to 35 mph, organizer Bill Hart said. "We just feel Shore Drive is very, very unsafe for everybody except drivers," he said. "People are not only getting killed, but they're getting injured, disabled, and we need to do something about it " Since May 2008, two cyclists have died in Vrginia Beach after collisions with vehicles. One was on Shore Drive, and one was on Witchdudc Road. Through mid-April, there were 16 crashes this year involving bicycles and motor vehicles, according to the Police Department. Kokoamos approached the event's organizers and offered to host apost-ride barbecue, Hart said. It provided hot dogs, hamburgers, juice and sodas, manager Aimee Wetzel said. "We do multiple facets of charity and are heavily into giving back to the community," she said. "Our main focus today was to make sure that everyone is safe down here on this corridor." If the Shore Drive area was safer for pedestrians and cyclists, more people could walk and bike to bars, stores and restaurants, Wetzel said. The League of American Bicyclists does not consider Virginia Beach a Bicycle Friendly Community, according to its Web site. The designation goes to communities that meet certain criteria, such as having bike lanes and enforcing bike-safety laws. In Vrginia, only Alexandria, Arlington and Charlottesville are considered Bicycle Friendly Communities, according to the Web site. Virginia Beach would benefit from being added to the list, Hart said. "I think they're hurting themselves in the long run," he said. "People are going green, and they're going to travel places where they can ride their bikes, and Virginia Beach has a reputation where you don't." ~CS u#inn WHEREAS: Tommy Joe Taylo- gave mans thou fifty years oJhis IIJe saving in the Baptist ministry, thirty of which were as the Senlo- Pastor of London Bridge Boptlst Church where he retired lonuory Tenth, Two Thousand Ten; WHEREAS: Tommy !oe Taylor was born in the cool mining Town of Norton, Vlrglnk, with humbk beg/nningt !n the /otter years of the Deprcssksn of the ThiKie; he spent lots of Hme skdding the winding roods of High Knob MountoM and first attended church at the age oJTen only because The Baptist Church hod a gym; WHEREAS: from the early age oJTen urrtll he was Twenty, Tommy !coined many a life's lesson through dolly delivery of the local newspaper to more thou one hundred customers in thh mountain town. He played Varsity Football and Basketball for J. 1. Burtat Hlgh School In Norton and groduattd !n 1957. He attended CRnch Va/ky College Jell-trine far two years while workhp JuB-ehne oe nighe to support hrs family and pay for hrs own mRege. After produotlon, of the age of 23, he become the Pastor M hb Jlrst church !n Corydon, Indiana, whrle attending Seminary. He groduoted from Coaon-Newman CoBtge rn /eJJerson Clry, Tennaset, with o BA in HhrMry !n 1961 and Jro-n Southern Seminary in LouisvlNe, Kentucky, with a Master of DhdnRy in 1966. After Seminary, he become the pottw of o church In FronkRn, Indbno, Pram 1966-1970. He moved to Loulsvr/k, Kentucky, and postored the Shively Ndghts Baptist church from 1971 to 1979. In Apra 1979, hs accepted the col!" to be the Senhsr Pastor at London Bridge Bopt/st Churdt !n VingMlo Beach when he saved unNringy and JalthJuUy f br man chore thl-ty years; WHEREAS: DuNnq hhr Pastorate of London Bridge BopHsG the church pnw from flue hundred ro three thousand member. The StaJJ pnw from three to man than f if ty today. The church constnrcted o 22110-seat Worship Center to rcpbce the 7D0-scot sanctuary In 2001. Mon than thirty men and women hove been called from this thurdr to Dull-elms mhr/stry or missionary duties. Durhtg his tenon, Tommy served on the NoHonol Baptist Sunday School Board and at the first Preslderrt of the Southern BopthK Conservathres oJVlryinla; and, WHEREAS: Tomm y Taylor Jell In leers and married his high schod swseN-tort, PhyRh Ann Tate earns fifty Jour yeoa oqo and they hove three chlldrert: Mary Beth, Mehrnk onclloth plus flue prondehNdren. NOW, THEREFORE, BE IT RESOLVED: That the Virginia Beach C/ry Coundl pouss ht !b dtllberoNont to recognise Reverend Tommy Jos Toy/or f br his Faith to occompRsh so mucky hhr dedication to h!s bslieJy, hhr willingness to serve hhr commun/ty and participate frequently over the years for the Invocotksn at this City Council and the many untiring, unselfish and dedkoted ways he has contributed ro the shaping oJso mar-y lives. BE IT FURTHER RESOLVED: That each Member of City Council affixes his or her signature ro this Resolution and that !t be spread upon the Minutes oJthis Formal Session on this Ninth day oJMarch, Two Thousand and Ten. Rita Sweet Bellltto -At Large Willkm R. "Bill" DeSt~ph - At I orgt Robert M. "Bob" Oyer- Centerville Dlstrkt 1 Laub R. !ones - Boyslde Olttrlct 1- Vlce Mayor Rosemary Wilson - At large Glenn R. Dovlt -Rose HaR Dlstrkt 9 Herery E. 91e:s1- Kempsvllk Dbtrh:t 2 Barbaro M. Hsnky -Princess Anne Dbtrkt 7 John E. Uhn!n - Beach Olttrkt 6 James L. lim"Wood - L ynnhaven District S William D. 'INIIP Sessoms -Mayor Hu'~ o ~ +.,4y u ~ a~s ~:, aJ ~' o, w., ...ar °~ J CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Appropriate Federal and State Funds and to Transfer City Funds for Recovery Expenses Associated with Tropical Storm Ida MEETING DATE: March 9, 2010 ^ Background: In November 2009, the City of Virginia Beach was hit by Tropical Storm Ida resulting in damage from high winds and flooding. Subsequently, the Federal Emergency Management Agency (FEMA) and the Virginia Department of Emergency Management (VDEM) announced that they would offer reimbursement aid to the City for damages and cleanup associated with the storm. For eligible expenses, FEMA will reimburse the City 75%, VDEM will provide reimbursement of 18%, and the City's portion of the cost is the remaining 7%. ^ Considerations: For an estimated total damage-related cost of $2,500,000, FEMA and VDEM together are expected to reimburse the City about $2.3 million for eligible damages and cleanup, with the City incurring about $175,000. The City's portion will be provided by a transfer from the General Fund Regular Reserve for Contingencies. After this transfer the balance in the Reserve for Contingencies will be $1,201,924. ^ Public Information: Public Information will be handled through the normal Council agenda process. ^ Alternatives: Since the damages incurred by Tropical Storm Ida needed to be repaired, there are no viable alternatives to seeking FEMA and VDEM reimbursement, unless the City bears the entire $2,500,000 expense associated with the recovery. ^ Recommendations: It is recommended that City Council appropriate $1,875,000 in estimated revenue from FEMA and $450,000 in estimated revenue from VDEM to the FY 2009-10 Operating Budget, and to transfer $140,000 within the FY 2009-10 Operating Budget to pay for eligible damages and cleanup from Tropical Storm Ida. ^ Attachments: Ordinance Recommended Action: Adopt Ordinance Submitting Department/Agency: Finance/Risk Management ~ City Manager: ~ ~ ~~- ~~/ 1 AN ORDINANCE TO APPROPRIATE FEDERAL AND 2 STATE FUNDS AND TO TRANSFER CITY FUNDS 3 FOR RECOVERY EXPENSES ASSOCIATED WITH 4 TROPICAL STORM IDA 5 6 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 7 VIRGINIA: 8 9 1. That $1,875,000 in estimated revenue from the Federal Emergency 10 Management Agency and $450,000 in estimated revenue from the Virginia Department of 11 Emergency Management are hereby appropriated to the FY 2009-10 Operating Budget 12 and that $175,000 from the General Fund Regular Reserve for Contingencies is hereby 13 transferred within the FY 2009-10 Operating Budget to pay for expenses incurred by City 14 agencies for recovery expenses associated with Tropical Storm Ida. 15 16 2. That federal and state revenues will be increased accordingly. Adopted by the Council of the City of Virginia Beach, Virginia on the day of 2010. Requires an affirmative vote by a majority of all the members of City Council. Approved as to Content: Approved as to Legal Sufficiency: ~J L ~' ~ < Management Services Ci ey's Office CA11441 R-3 February 24, 2010 L. PLANNING 1. Application of CAPE HENRY STATION, LLC for a Conditional Use Permit re a wind turbine on the roof (WECS) at 2817-2821 Shore Drive. District 5 - LYNNHAVEN RECOMMENDATION APPROVAL 2. Application of WEST NECK PROPERTIES, INC./ROBERT ZIRPOLI for a Conditional Use Permit re anon-commercial community pier (private use) at 1809, 2933 and 2936 Estates Drive (Deferred February 23, 2010). DISTRICT 5 - LYNNHAVEN RECOMMENDATION APPROVAL 3. Application of TOWN CENTER ASSOCIATES, LLC to EXTEND satisfaction of the conditions for twelve (12) months in the closure of a portion of Market Street (approved March 24, 2009) DISTRICT 5 - LYNNHAVEN RECOMMENDATION APPROVAL 4. Applications of CITY OF VIRGINIA BEACH re the City Zoning Ordinance (CZO): a. AMEND §§111, 211, 212 and ADD 211.1 re definition of roadside guide sign RECOMMENDATION APPROVAL b. AMEND by reducing setback requirements for in-ground swimming pools in R-SR Residential Districts near the Atlantic Ocean. RECOMMENDATION APPROVAL c. AMEND § 111 and ADD §217 re requirements for monument and electronic display signs (deferred February 9, 2010) RECOMMENDATION Defer to March 23, 2010 ~~ • :~ ~~ NOTICE OF PUBLIC HEARINGi Virginia Beach City Council will meet in the Chamber at City Hall, Municipal Center, 2401 Courthouse D-lve, Tuesday, March 9, 2010, at 6:00 p.m. The following applications will be heard: CITY OF VIRGINIA BEACH Ordinance to amend Sections 111, 211 and 212 of the City Zoning Ordinance and to add a new Section 211.1, defining the term "Roadside Guide Sign' and establishing requirements for allowing such signs in the public right-0f-way. Ordinarx:e to amend the City Zoning Ordinance by reducing setback requirements for in-ground swimming pools located on lots adjacent tv the beaches of the Atlantic Ocean in the R-5R Residentlat District. Ordinance to amend Section 111 and add new- Secdortb 217 to the City Zonin~ Ordinsr>ce dsftMng monument signs and electronic display signs and establishing requirements for such signs. LYNNHAVEN D18TRICT~ Cape Henry Station, LLC Application: Conditional Use Permit for a wind turbine at 2817 - 2821 Shore Drive. All interested citizens are irnited to attend. Ruth Hodges Freser, MMC City Clerk Copies of the proposed ordinances, resolutions and amendments are on file and may be examined In the Department of Planning or online at htto://www.vb>QOV.com/oc For information call 385-4621. If you are physkall~t disabled or vbuaN~t irrlTralirod and need assistance at this meeting, please call the CITY CL,ERK'R OFFlCE at 3854303. Beacon Feb. 21 & 28, 2010 21065235 CUP -Wind Energy System r ,~~NUl~j~yt ~``SF • yS ~ltt~) 4i~1 ~ tti (`•~ ! ~~~~ CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: CAPE HENRY STATION, LLC, Conditional Use Permit, wind turbine, 2817 - 2821 Shore Drive. LYNNHAVEN DISTRICT. MEETING DATE: March 9, 2010 ^ Background: The applicant requests a Conditional Use Permit to allow the installation of a wind energy conversion system (WECS) on the roof of the building located on the subject site. Due to the height of the proposed turbine above the level of the roof, a Conditional Use Permit is necessary. ^ Considerations: The applicant proposes to install a white aluminum alloy roof-mounted wind turbine on the northwest corner of the roof of the Cape Henry Plaza Shopping Center located along Shore Drive (above the Hot Tuna restaurant). The City Zoning Ordinance limits the height of roof-mounted wind energy conversion systems to eight feet, unless otherwise allowed by a Conditional Use Permit. The proposed vertical wind turbine, constructed of aluminum alloy, is proposed with a 16 foot high by 4 feet in diameter rotor on a monopole support with a total height of 19.8 feet. The vertical system is designed to catch wind from all directions - turbulent and gusting winds as well as winds as low as 10 miles per hour - to create electricity to power the complex's common area (parking lot lights). If the wind is not blowing, then the property is powered by the traditional energy grid as usual. According to the manufacturer, the design gives almost silent operation at less than five decibels above background noise and is safe for birds and bats. The 1,400 pound system has a purported design life of 30 years. No additional structures are proposed, as any equipment associated with the wind turbine will be housed inside the existing building. Staff concludes that the proposed wind energy conversion system meets the intent and requirements of Section 209 of the Zoning Ordinance, which regulate these systems, and, therefore, Staff recommends approval of this request with the following conditions. There was no opposition to the request. Cape Henry Station, LLC Page2of4 ^ Recommendations: The Planning Commission placed this item on the Consent Agenda, passing a motion by a recorded vote of 10-0, to recommend approval of this request to the City Council with the following conditions: 1. If the wind energy conversion system ceases to be operational for a period of one year, the system shall be removed at the applicant's expense. 2. The wind energy conversion system, including all associated equipment, shall be inspected by a wind energy system contractor two years from approval by City Council and then every two years subsequent, to ensure compliance with Section 209 of the Zoning Ordinance and with conditions set forth in the Conditional Use Permit. The findings of each inspection shall be submitted in writing to the City of Virginia Beach Planning Director. 3. All electrical connections from the wind turbine to the building shall be screened so as to be hidden from view. 4. No signage related to the wind energy conversion system shall be permitted other than safety and warning signage. 5. Noise associated with the wind energy conversion system shall not exceed a decibel level of 55dB (A) as measured at any adjoining property line. 6. No portion of the wind energy conversion system shall be illuminated unless required by the Federal Aviation Administration. 7. The height of the wind energy conversion system, including the pole, shall be no higher than 22 feet above the roofline. 8. The wind energy conversion system shall be equipped with a manual brake. 9. The wind energy conversion system shall be limited to the roof at the northwest corner of the building, above the existing restaurant known as "Hot Tuna" and shall be located no closer than 18 feet from the edges of the building. 10. A letter from the professional engineering company of McPherson Design Group, the firm who prepared the plans entitled, "HOT TUNA WIND TURBINE VIRGINIA BEACH, VA," sheets SK-1 through SK-7, shall be submitted to the Building OfficiaPs Office prior to the issuance of the Final Certificate, stating that all work to install the wind energy conversion system was done in accordance with said plans. Cape Henry Station, LLC Page 3 of 4 11. All other applicable requirements of the City of Virginia Beach Zoning Ordinance shall apply to the erection of the wind energy conversion system. ^ Attachments: Staff Review and Disclosure Statements Minutes of Planning Commission Hearing Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Department City Manager: l~ ~~ ~Jrt~,~ ~n. J ~ n ,r ncnr-~ ~~auon, ~_~,t B4 02 / /i% ~.c NF. rv . . ~' Gr- M - - f A36 - ' ~, - _. '~ ' ~"" R7.d B4 `~ sa ~;~ .. ~", CUP .Wind Energy System 3 February 10, 2010 Public Hearing APPLICANT 8~ PROPERTY OWNER: CAPE HENRY STATION, LLC STAFF PLANNER: Carolyn A.K. Smith REQUEST: Conditional Use Permit (wind energy conversion system) ADDRESS /DESCRIPTION: 2817-2820 Shore Drive GPIN: ELECTION DISTRICT: SITE SIZE: AICUZ: 15904016980000 LYNNHAVEN 225,632 square feet Less than 65 d6 DNL The applicant requests a Conditional Use Permit to allow a SUMMARY OF REQUEST wind energy conversion system (WECS). The applicant proposes to install a white aluminum alloy, 19.8 foot tall, roof-mounted wind turbine on the northwest corner of the roof of the Cape Henry Plaza Shopping Center located along Shore Drive. A Conditional Use Permit is required for roof-mounted systems that are more than eight feet above the roof. Ordinance Regulations Proposal's Compliance with Regulation Professional Engineer A professional engineer licensed by the Commonwealth of Virginia must Certifications certify that the tower, blades, etc. meet the requirements of the Building Code and the Federal Aviation Administration, and that the structure upon which the system is to be mounted has the structural integrity to carry the weight and wind loads of the system and will have minimal impacts. The applicant has submitted these certifications and has met these re uirements. Lot Area Roof-mounted WECS shall have a minimum lot area as specified in the district regulations. In the Business District, the minimum lot area is 20,000 s uare feet. The a licant has met this re uirement, as the lot is over CAPE HENRY STATION Agenda Item 3 Page 1 225,000 s uare feet. Setback Nos ecific setbacks are re wired for aroof-mounted WECS. Height The height of aroof-mounted WECS is limited to eight feet unless a Conditional Use Permit authorizes otherwise. As the proposed WECS is almost 20 feet, a condition has been recommended to limit the maximum hei ht of the entire s stem to no hi her than 22 feet above the roof line. Noise The highest level of noise generated by the system, as measured at any adjoining property line, cannot exceed an A-weighted decibel level of 55 d6(A). According the manufacturer's specifications, the design gives almost silent operation at less than five decibels above background noise. The a licant has met this re uirement. Illumination No portion of a WECS can be illuminated unless required by the Federal Aviation Administration. The applicant has met this requirement, as there will be no illumination of this s stem. Siting A WECS must be situated on a site in a manner that minimizes shadowing and flickering effects on any adjacent property. In this case, the height and location of the turbine will result in minimal shadowing and flickering on adjacent ro ert . The a licant has met this re uirement. Electrical Connections All electrical controls, control wiring, and power lines must be located under round or otherwise hidden. The a licant has met this re uirement. Braking Any WECS must be equipped with a redundant braking system that engages at wind speeds that the manufacturer specifies to minimize the potential for wind damage to the system and its supporting structure. According to the manufacturer, the design of this vertical system eliminates the need for this type of braking system as it can withstand 130 miles per hour wind. The manufacturer does recommend that for winds above 100 miles per hour, the unit be hinged down parallel to the roof. At 100 plus miles per hour, there is no power generated. The unit does have manual breaking capabilities that will stop the turbine for maintenance purposes and the manufacturer has offered to add this manual brake to meet this re uirement. LAND USE AND ZONING INFORMATION EXISTING LAND USE: Shopping center with parking lot SURROUNDING LAND North: Shore Drive USE AND ZONING: . Hotel, multifamily dwellings / B-4 Business District South: . Multifamily dwellings / A-36 Apartment District East: . Single-family dwellings / R-7.5 Residential District West: North Great Neck Road • Office, mixed-retail / B-2 Community Business District NATURAL RESOURCE AND The site is within the Chesapeake Bay watershed. There are no CAPE HENRY STATION Agenda Item 3 Page 2 CULTURAL FEATURES: significant environmental or cultural features on this site, as it is almost entirely impervious. IMPACT ON CITY SERVICES There are no expected impacts to City services based on this application. Recommendation: EVALUATION AND RECOMMENDATION Staff recommends approval of this request with the conditions below. Evaluation: The City Zoning Ordinance limits the height of roof-mounted wind energy conversion systems to eight feet, unless otherwise allowed by a Conditional Use Permit. The proposed, almost 20 foot tall, vertical wind turbine, constructed of aluminum alloy, is proposed with a 16 foot high by 4 feet in diameter rotor on a monopole support with a total height of 19.8 feet. The vertical system is designed to catch wind from all directions -turbulent and gusting winds as well as winds as low as 10 miles per hour - to create electricity to power the complex's common area (parking lot lights). If the wind is not blowing, then the property is powered by the traditional energy grid as usual. According to the manufacturer, the design gives almost silent operation at less than five decibels above background noise and is safe for birds and bats. The 1,400 pound system has a purported design life of 30 years. No additional structures are proposed, as any equipment associated with the wind turbine will be housed inside the existing building. The Comprehensive Plan acknowledges the need to develop new sources of energy, particularly those that are renewable. The Plan promotes energy conservation, provided safety, visual and environmental impacts are consistent with the Zoning Ordinance, and it recognizes the City's unique location to easily capture a readily available, renewable source of energy such as wind. Section 209 of the City Zoning Ordinance requires a certification from a professional engineer licensed in the Commonwealth of Virginia that the system complies with all applicable regulations and requirements of the Virginia Uniform Statewide Building Code and the Federal Aviation Administration. The Zoning Ordinance requires an additional certification that the structure upon which the wind energy conversion system is to be mounted will have the structural integrity to carry the weight and wind loads of the system and will have minimal impacts on the structure. All of these certifications have been submitted with the application and have been found to be in compliance with the requirements. The proposal also meets the ordinance's requirements related to: setbacks, lot area, height, signage, noise, illumination, siting, and appearance. The ordinance requires that all systems be equipped with a redundant braking system that engages at high wind speeds so as to minimize the potential for wind damage to the system or its supporting structure. According to the manufacturer, the design of this vertical system eliminates the need for this type of braking system, as it can withstand winds up to 130 miles per hour. However, in order to meet the City's requirements, the manufacturer will add a manual brake to meet this requirement. The system will be mounted on a hinged pole, which will allow it to be taken down and strapped to the roof in the event of a significant storm. When wind speed exceeds 100 plus miles per hour, there is no power generation. In addition, the unit comes with a Wind Monitoring System, which allows the applicant to predict exactly when the unit should be taken down and secured. The system transmits data to the manufacturer, Helix CAPE HENRY STATION Agenda Item 3 Page 3 Wind, and is available to applicant at anytime. Staff concludes that the proposed wind energy conversion system meets the intent and requirements of Section 209 of the Zoning Ordinance, and, therefore, Staff recommends approval of this request with the following conditions. CONDITIONS 1. If the wind energy conversion system ceases to be operational for a period of one year, the system shall be removed at the applicant's expense. 2. The wind energy conversion system, including all associated equipment, shall be inspected by a wind energy system contractor two years from approval by City Council and then every two years subsequent, to ensure compliance with Section 209 of the Zoning Ordinance and with conditions set forth in the Conditional Use Permit. The findings of each inspection shall be submitted in writing to the City of Virginia Beach Planning Director. 3. All electrical connections from the wind turbine to the building shall be screened so as to be hidden from view. 4. No signage related to the wind energy conversion system shall be permitted other than safety and warning signage. 5. Noise associated with the wind energy conversion system shall not exceed a decibel level of 55dB (A) as measured at any adjoining property line. 6. No portion of the wind energy conversion system shall be illuminated unless required by the Federal Aviation Administration. 7. The height of the wind energy conversion system, including the pole, shall be no higher than 22 feet above the roofline. 8. The wind energy conversion system shall be equipped with a manual brake. 9. The wind energy conversion system shall be limited to the roof at the northwest corner of the building, above the existing restaurant known as "Hot Tuna" and shall be located no closer than 18 feet from the edges of the building. 10. A letter from the professional engineering company of McPherson Design Group, the firm who prepared the plans entitled, "HOT TUNA WIND TURBINE VIRGINIA BEACH, VA," sheets SK-1 through SK-7, shall be submitted to the Building Official's Office prior to the issuance of the Final Certificate, stating that all work to install the wind energy conversion system was done in accordance with said plans. 11. All other applicable requirements of the City of Virginia Beach Zoning Ordinance shall apply to the CAPE HENRY STATION Agenda Item 3 Page 4 erection of the wind energy conversion system. NOTE: Further conditions maybe required during the administration of applicable City Ordinances and Standards. Any site plan submitted with this application may require revision during detailed site plan review to meet all applicable City Codes and Standards. All applicable permits required by the City Code, including those administered by the Department ofPlanning /Development Services Center and Department of Planning /Permits and Inspections Division, and the issuance of a Certificate of Occupancy, are required before any uses allowed by this Use Permit are valid. CAPE HENRY STATION Agenda Item 3 Page 5 T t5 Wr ~~ry l ~! fr ~ ~ i ~ I > ~1r~ ~/ ` ` ~ 4 f l ~ f `. . ~~ '~ Z N ~.,.,.~`,: ~~~,r~~ a~"„'< ,. ,.. _'" ~~ ~ `t~~ -:' r R ~~ ,~. ,. ~~ 1 ' Yi ~~ ~ K.'", ~~ ~:~.~. t' AERIAL OF SITE LOCATION CAPE HENRY STATION Agenda Item 3 Page 6 , ., , , I'. ~ i ~ ' ._ 8 ~ ~ ~ ~ ~ 1 r' ~ ~ ~ ~ H ~ ~i ~ ~ I g.r r ~a ~ i ` y ~ ~ f ~ ~ ~ o ~ ~ ~ t ~s ~,~ . a . __. a --- s 1 S~ ~~ ' ~ ~ N ~ ~'v5 s. ~'I t ~ ,.. ~ ~ ~ ~4 .~4 C;~ ~ ~~ :~ ~ y _ 4 i t s j ~= - ~°f c t l E~, ' ~ - s ~ ~ ~" ~ ~ ~ ~'~ ~ ~~ - E~. i _ >~ L:1 ._ a, ~ `"" •~ .~.+" ii _ J ~A ~~ _ t 1. ` ~ t ~ F. ~" ~~~ 4; ,.~ ~ • h `' S ~~' x ~ ~ ~~~: ~ ~~ ~~ ~ ~ 4~ ~ ~ ~ ~~~ ~ ~. S~ ~~#~..-1 - '~ ~_ .~ ` 1 +~; ~ moo„ ...~ ,... ~ x ~ a.- -1^ .~ ,:' =.5 ~~~ ,, ~ ~.~` ~_ --- ~, __ r '~~ s~ :,- ., .. ~~; ._v.~. ~~~' ~§ ~'~~i~ SITE PLAN SHOWING LOCATION OF WIND TURBINE (Star) CAPE HENRY STATION Agenda Item 3 Page 7 CAPE HENRY STATION Agenda Item 3 Page 8 PROPOSED WIND TURBINE ~. PROPOSED WIND TURBINE CAPE HENRY STATION Agenda Item 3 Page 9 .--. T~ Ct ~ _ L_' _ T T f .r l ,~ ate" ~ ~ ~ ~"~, ~\~` ~ ~~~,~.,.- ~~~ ~ ~ R'' F ,.: ~~ W ~~ '~ ~; ~V~ ~. '` ., v- ~~[ _.~- ~~ ~. 2 ~ ~_+ BjT /J J ` "~ ` ~. . r i ,,,.. .. ~t ,.. HC \ , ~ ,/,~ \ ~ f ~,I \ r stn ~•-" ~Z..r 1 `f Y gR`VE \\ .r ~'~ ~ ;, \,\ 1\ w~.~ ,~ ~ ~7:~ _,~.. ~~ t 6 T~ ~~1 ~ ~ CtJP - tNind FfT£'P"~`}t Sysf~m 1 10/23/07 CUP (multifamily dwellings) Granted 02/13/07 CUP (communication tower) Granted 03/07/83 Street Closure Granted 04/02/73 CUP hotel Granted 2 04/26/90 CUP (home for the aged) Granted 03/07/83 Street Closure Denied 3 08/22/95 Reconsideration of Conditions Granted 06/27/95 CUP (home for the aged) Granted 06/22/93 Change of Zoning (B-2 to B-4) Granted CUP home for the a ed 4 01/04/94 Change of Zoning (B-2 to A-18 & B-2 to PD- Granted H2) 02/25/85 Change of Zoning (B-2 to B-4) Denied 06/28/82 Chan a of Zonin B-2 to B-4 Denied 5 06/01/87 Change of Zoning (B-2 to A-4) Granted 02/25/85 Chan a of Zonin B-2 to A-4 Denied ZONING HISTORY CAPE HENRY STATION Agenda ltem 3 Page 10 C~~ ., __.' (se Prr~rit.~l*~,i~a~Cicn Pis: < 1; t <~PPL.H:A~"T M)I~t:LrJSi'L2C' 1. i.;~t the a~pliettnt r~anF~ :i~lls~«cs3 ix°_, : . r. ;;, s ,_ : ,,.~r ... . h~~:ners. sae. h~i~~~~~: ~Rpicant oasts.: <:'.1I'1_ EiT~'~hl '~"1";e "_ r;' rttpicer~: .iettr~~~ ~. IidFtii~F " _ , _. . K. clack l~titi. ~'ir; _.' Fcl ~<•cewttir ~I~nFb~r: lt~:isii~,~ii t1~~;.~ ~ l_.}>, ° ,.:. LISC .ail i)tF*:'.: >S~'> tLs3t isa~'.: ^ ~tLCt',fii *,J:'~S4iIl aC~ Z,. ~'. ! .,..~. .'E1a~? r~.:utic~nisiia c3 i:?s tlse arplicant: . {'.~~ >; i i:nr~ `itatiatt ~ Lf; i~ ~ suhit3 ar ~ <a°.•°~cgs~ 17 cu^~i : ... _ ~ I + .1'. . ~~siF ~1~. i~7 ~s ~ u~~idiset~ ~~f f'Ptiiti~a E:diss~rt LiFntt~c3 Pa;c.. C t_,~ H;:nr} 5tatizsi I L:(_" i~ ita zin 3tfitiated hu~i;l:-> r_:. ... .. 1~~lison c~ t:x~m~,an~ L,tcl. Phit3i~s Gc3i~c~n ~: C's~FFF~a;;,, _. .! .. !,• , ,.~,:~~ €h,F~i~~-~ r+i'Pir~'.:Fn4 f is<in f irYFi'_ ! 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' r ;sa as .• t+''ti,~ r~iticia3 tx cmFlae~c• :~ne'~ tiu• natssr_ .. _ . , DISCLOSURE STATEMENT CAPE HENRY STATION Agenda Item 3 Page 11 ~---+ w w cn DISCLOSURE STATEMENT ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will provide services with respect to the requested property use, including but not limited to the providers of architectural services, real estate services, financial services, accounting services, and legal services: (Attach list if necessary) me ~her5ar.t ~~tc-~ I C~-r2ot~n ' "Parent-subsidiary relationship" means "a relationship that exists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation." See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. Z "Affiliated business entity relationship" means "a relationship, other than parent- subsidiary relationship, that exists when (i) one business entity has a controlling ownership interest in the other business entity, (ii) a controlling owner in one entity is also a controlling owner in the other entity, or (iii) there is shared management or control between the business entities. Factors that should tie considered in determining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entities; there are common or commingled funds or assets; the business entities share the use of the same offices or employees or otherwise share activities, resources or personnel on a regular basis; or there is otherwise a close working relationship between the entities." See State and Locat Govemment Conflict of Interests Act, Va. Code § 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and accurate. I understand that, upon receipt of notification (postcard) that the application has been scheduled for public hearing, I am responsible for obtaining and posting the required sign on the subject property at least 30 days prior to the scheduled public hearing according to the instructions in this package. The undersigned also consents to entry upon the subject property by employees of the Department of Planning to photograph and view the site for purposes of processing and evaluating this application. ~~ e-- 0 A z 0 V Appli n ' nature Property Owner's Signature (if different than applicant) Print Name L !~ I~ l c /~ ~~ Print Name Conditional Use Permit Applicalion Page 10 of 10 Revised 7!3!2007 CAPE HENRY STATION Agenda Item 3 Page 12 Z ---a V .--. ~--a .--. W W cn ~--+ F-'~ .-.~ A Z O V 1 DISCLOSURE STATEMENT ;~ ;~ ADDITIONAL DISCLOSURES r>? al known contractors ~r businesses that have or will provide services with respect ttie requested property use. inGuding but not limned to the providers of architectural •,n'u:ns. real estate servces, financial services, accounting services, ana loyal ~rvu:PS (Attach~ist if nerxssary) ~~ ~ ,1 a ; ,1- l . , , . , . ~ . t-~ 'Parent-subsidiary relationship" means "a relationship that exists when one ,I,~,r>non direti uv a mdrrer'nv rwvns shares possessing more than 50 percent - ri the vctrng •w•~r of another ~ ~ rrj'ofat,(~r .;~~ State and Local Government Gonflict of interests pct va. . ruv 3 2 2-3101 "Affiliateri husiness erhh; relationship" means 'a relationship. other tnnr parent- . ~:~~rd~ary relation :hip, that r- ~~sts when (i) one business entity has a controNin:: axnnr;hrn arrest rn the othrr business entity (ii) a conudling owner in one entity is also a contro!hny ~~-rr•r m the ottte~ entity, or pu. there is Shared management or Control between the business •hnr ~; Factors ?nat shou~ri he rcnsidered in determining the existence of an a~filiated c:r~xt5s entity relat•onship irc~uce that the same person or substantially the same person mr r~- manage the two errtrt~es there are common or commingled funds or assets, the rsr,ess entities share the use, of the same offices or employees or otherwise snare :,ctivr6es, ~:: rvrr,rrs or persor'nel on a r 4,gular basis: or there 's otherwise a close workinra relatrnnship •twt~.-•r, the eMa~,~•~ See tit,te and Local Govemmerrt Conflict of Interests Act Va ;:ode § r E:RTIFICATION~ r certev rra• the information contained herein istrue and aeeura•e rr-er~tand that, ,rrr:~ recern• .t rkcr; ation (postcard) that the a~ppFcatwn has been cr -Nti-lr,lrat ~~r :n,< nearing, 1 ar~~ rPsponsrh ~ h,r obtaining and posting the required sgn on ttie sub~~ct pr;X~ry a~ ,~.t ~•~ days prior r~ the schai ,~rd oubl;c hearing according to the instructions in thr~ :~dc:kage rh.~ ,.y.• ~rgned also < ~~r'sent5 to r- ,try ,von the subject property by employees of the De~art'nerr of ' ,~ -,r~, l to photoc'.+nh and •r~ •.v r~r <ate for purposes of processing and evaluaLng ?tic. tcpiratrxi ;dn:~: ~l'x Sgnah • c _ -- --- Print Name -: ~~,.wr lc~wner ~c;n. ur- e ; to ~nt han applipnt) Pnnt Name V ~ r ~ - t~.-.S. ~~ f- Condih~r-al :, u• F .•^7•~ rs•;,riration :nge'JT?p ?r,.,scd !r$?777 CAPE HENRY STATION Agenda Item 3 Page 13 Item #3 Cape Henry Station, L.L.C. Conditional Use Permit 2817 - 2821 Shore Drive District 5 Lynnhaven February 10, 2010 CONSENT Jay Bernas: The next matter is agenda item 3. This is an application of Cape Henry Station, L.L.C. for a Conditional Use Permit for a wind turbine on property located at 2817-2821 Shore Drive, District 5, Lynnhaven. Is there a representative here on this application? Welcome. Please state your name. Barbara Thompson: Brenda Thompson. Jay Bernas: Are the conditions acceptable? Barbara Thompson: Yes sir, they are. Jay Bernas: Okay. Thank you. Barbara Thompson: Thank you. Jay Bernas: Is there any opposition to this matter being placed on the consent agenda? Hearing none, the Chairman has asked Commissioner Katsias to please review this item. Kathy Katsias: Good afternoon. This is an application from Cape Henry Station, L.L.C. for a request for a Conditional Use Permit to allow a wind energy conversion system. The applicant proposes to install a white aluminum alloy, 19 x 8 foot tall, roof mounted, wind turbine on the northwest corner of the roof at the Cape Henry Plaza Shopping Center located along Shore Drive. A Conditional Use Permit is required for aroof-mounted system that is more than 8 feet above the roof. Staff recommends approval. We concur with staff; so, therefore we have placed it on the consent agenda. Thank you. Jay Bernas: Thank you. I would like to make a motion to approve consent agenda item 3. Joseph Strange: Do I have a second? Kathy Katsias: Second. Joseph Strange: A motion has been made by Jay Bernas and seconded by Kathy Katsias to put item 3 on the consent agenda. Item #3 Cape Henry Station, L.L.C. Page 2 AYE 10 ANDERSON NAY 0 ABS 0 ABSENT 1 ABSENT BERNAS AYE FELTON AYE HENLEY AYE HORSLEY AYE KATSIAS AYE LIVAS AYE REDMOND AYE RIPLEY AYE RUSSO AYE STRANGE AYE Ed Weeden: By a vote of 10-0, the Board has approved item 3 for consent. -74- Item V-K 9. c. PLANNING ITEM # 59650 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council DEFERRED INDEFINITELY: City Zoning Ordinance (CZO): AMEND X111 and ADD §217 re requirements for monument and electronic display signs Voting: 10-0 (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, Rosemary Wilson and James L. Wood Council Members Voting Nay.• None Council Members Absent: None Fehruarv 9. 2010 -60- Item K.3. PLANNING ITEM # 59693 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council DEFERRED to March 9, 2010, BY CONSENT, Ordinance upon application of WEST NECK PROPERTIES, INC. /ROBERT ZIRPOLI for a Conditional Use Permit re anon-commercial community pier (private use) at 1809, 2933 and 2936 Estates Drive. DISTRICT S - LYNNHAVEN Ordinance upon application of WEST NECK PROPERTIES, INC./ROBERT ZIRPOLI for a Conditional Use Permit re a non- commercial community pier (private use) at 1809, 2933 and 2936 Estates Drive. GPIN # 14991467120000; 14991447520000; 14991416420000 DISTRICT S - LYNNHAVEN Voting: I1-0 (By Consent) Council Members Voting Aye: Rita Sweet Bellitto, 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, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None February 23, 2010 Iap H-3 t~ 7~ ~..L ~T _ _ ~ _ r .. rviaprvaro~ca~e r~CJI l~Cl;li rrU CCTIeS lllC. ~ Bay i :- ' . / i - ~,.. c, `~ ,~ ~ ~,\ i - i ~j ,\`\ ~ ~~ ~ ., ~ ~ ` ~ i CUP Community Pier Nu 1 ~~w ~yy' 1 4:,--~ ~: `~: ',~, CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: WEST NECK PROPERTIES, INC. /ROBERT ZIRPOLI, Conditional Use Permit, non-commercial community pier (private use), 1809 Estates Court, 2933 8~ 2936 Estates Drive. LYNNHAVEN DISTRICT. MEETING DATE: March 9, 2010 ^ Background: The applicant requests a Conditional Use Permit for anon-commercial community boat dock. The applicant is proposing a pier that will be shared by the owners of Lots 16A (1809 Estates Court) and 15A (2933 Estates Drive), an~f which crosses Lot 14A (2936 Estates Drive), in the neighborhood known as Estates on the Lynnhaven. Since the pier is being shared, the Zoning Ordinance classifies the pier as a community boat dock, which requires a Use Permit. This item was deferred by the City Council on February 23, 2010. ^ Considerations: The applicant proposes to construct afive-foot wide pier over 500 feet in length with a 75 foot by 5 foot (75'x5') wide floating pier and two boat lifts. The pier will be accessed directly from Lots 16A and 15A; however, approximately 500 feet of the pier traverses the southern side of Lot 14A adjacent to a flag of Lot 16A that extends to the water. According to the applicant's representative, Lot 14A will continue to utilize an existing pier located on the opposite side of that parcel. Staffs position is that in lieu of two additional piers, one each on Lot 15A and 16A, a shared pier is preferred for both visual and navigation purposes. The proposed pier will be used exclusively by the applicants, and no commercial use of the pier will be permitted. The pier will not have a sewer pump out facility nor will petroleum products be dispensed or stored on site. The applicant is currently seeking approval through the Joint Permit Application (JPA) process, and no construction will be permitted until the JPA is approved. There was opposition to the request. ^ Recommendations: The Planning Commission passed a motion by a recorded vote of 11-0, to recommend approval of this request to the City Council with the following conditions: West Neck Properties, Inc. Page2of3 Permits shall be secured from all appropriate regulatory agencies through the Joint Permit Application (JPA) process prior to any development or construction of the pier and boatlifts. 2. The boat dock revisions and extensions shall be substantially constructed as depicted on the plan entitled "PROPOSED PIER, LIFTS AND PILES, PURPOSE: BOATING ACCESS," prepared by Professional Construction Consultants, LLC, dated 10/23/09, or as modified as required by the JPA Permit. 3. No commercial use of the dock shall be permitted. 4. A plat shall be recorded, prior to issuance of site plan approval, depicting a legal means of ingress/egress for Lot 15A and 16A to gain access to the pier on Lot 14A, as shown on the plan identified in condition 2 above. 5. The setback of the pier from the property line between Lot 14A and 15A is determined to be acceptable; however, there shall be no covered boat lifts, covered docks, or other covered structures located anywhere on or adjacent to the pier. ^ Attachments: Staff Review and Disclosure Statements Minutes of Planning Commission Hearing Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Department ~~ City Manager: /~ h1 • ~Y~-~ D_ 6v' ~ CUP Community Pier r z -s ~ : ~ ~ ~- ~ :a • • T mop n ~ lia~ N~: :_+ S-blv West Neck Pro ernes Inc. • .,a --,- ~; ; .o~ ,. , ,. . . . a ,, , - ~ Q ~ Q . a ; ,. ,~ ,. ;a w,~~, ,' ~, ;ao ,. ', ~,% `,4 ~ a~ ! J Q~ ~~\ ,~',~` ~ 1 \ ~~ ~ ,. Ct.+P Community Pifr i January 13, 2010 Public Hearing APPLICANT: WEST NECK PROPERTIES, INC PROPERTY OWNER: WEST NECK PROPERTIES, INC. & ROBERT ZIRPOLI STAFF PLANNER: Carolyn A.K. Smith REQUEST: Conditional Use Permit (community boat dock) ADDRESS /DESCRIPTION: 1809 Estates Court and 2933 and 2936 Estates Drive GPIN: ELECTION DISTRICT: SITE SIZES: AICUZ: 14991467120000 LYNNHAVEN 43,042 square feet Less than 65 d6 DNL 14991447520000 48,205 square feet 14991416420000 191,545 square feet SUMMARY OF REQUEST The applicants request a Conditional Use Permit to allow for a shared pier by the owners of Lots 16A (1809 Estates Court), 15A (2933 Estates Drive), and 14A (2936 Estates Drive) in the neighborhood known as Estates on the Lynnhaven. The applicant proposes to construct afive-foot wide pier over 500 feet in length with a 75 foot by 5 foot (75'x5') wide floating pier and two boat lifts. The pier will be accessed directly from Lots 16A and 15A; however, approximately 500 feet of the pier traverses the southern side of Lot 14A adjacent to a flag of Lot 16A that extends to the water. According to the applicant's representative, Lot 14A will continue to utilize an existing pier located on the opposite side of that parcel. The applicant is also seeking a variation to the side yard requirement for the pier. This request is further discussed in the Evaluation section of this report. WEST NECK PROPERTIES, INC. / ZIRPOLI Agenda Item 1 Page 1 LAND USE AND ZONING INFORMATION EXISTING LAND USE: One site consisting of an undeveloped single-family dwelling site and two sites developed with existing single-family dwellings. SURROUNDING LAND North: • Single-family dwellings / R-40 Residential District USE AND ZONING: South: • Single-family dwellings / R-40 Residential District East: • Single-family dwellings / R-40 Residential District West: Lynnhaven River • Single-family dwellings / R-40 Residential District NATURAL RESOURCE AND The properties are within the Chesapeake Bay watershed and are CULTURAL FEATURES: specifically located in the Resource Protection Area, the more stringently regulated portion of the Chesapeake Bay Preservation Area. All three sites have wooded, naturalized buffers along the shoreline. IMPACT ON CITY SERVICES This request for a shared pier with boatlifts will have no significant impact to City services. Recommendation: EVALUATION AND RECOMMENDATION Staff recommends approval of this request with the conditions below. Evaluation: The request to construct afive-foot wide pier, over 500 feet in length, with a 75-foot by 5-foot (75'x5') wide floating pier with two boat lifts is recommended for approval. The pier is proposed with upland access from Lots 16A and 15A, each having a separate access point; however, approximately 500 feet of the shared pier traverses Lot 14 A. An existing pier, located on the northern side of Lot 14A opposite the location of the propose community pier, will remain for the exclusive use of the owner of Lot 14A. As this request for a community boat dock traverses Lot 14A, this property owner is party to the request. Staffs position is that in lieu of two additional piers, one each on Lot 15A and 16A, a shared pier is preferred for both visual and navigation purposes. The proposed pier will be used exclusively by the applicants, and no commercial use of the pier will be permitted. The pier will not have a sewer pump out facility nor will petroleum products be dispensed or stored on site. The applicant is currently seeking approval through the Joint Permit Application (JPA) process, and no construction will be permitted until the JPA is approved. Also requested by the applicant is a variation to the required side yard setback for the pier. Such variations are permissible as part of a Conditional Use Permit by the provisions of Section 221(e) of the City Zoning Ordinance. That section notes that such variations may be approved, but there must be a determination that the "conditions attached to its approval satisfactorily offset the negative effects inherent WEST NECK PROPERTIES, INC. / ZIRPOLI Agenda Item 1 Page 2 in the area or dimensional deficiency." Currently, any portion of a pier over 16 inches in height and above mean low water, must meet required yard setbacks. The subject parcels are zoned R-40 Residential District, which requires a 20-foot side yard setback. In this case, Lots 15A and 16A have a very limited amount of actual water frontage, and thus, cannot meet such side yard setback requirements. A recent amendment to the Zoning Ordinance now allows piers to extend into required yards if the pier is uncovered, no more than four feet in width, and does not have any structures attached to it except for uncovered boat lifts. By not allowing covered boat lifts, covered docks, or other structures, the impact on adjacent properties is reduced. In this case, the applicant desires to maintain a pier width of five feet, and as a result, this new provision of the Zoning Ordinance cannot be used for the reduced side yard setback. Staff concludes, however, that the setback as shown on the submitted plan is acceptable, as the ten-foot wide flag of Lot 16A adjacent to the proposed pier provides a buffer between the pier and adjacent properties to the south. Additionally, staff is recommending a condition prohibiting covered boat lifts, covered docks, or other covered structures from being built on the pier as a means of further reducing potential impacts on adjacent properties. In sum, Staff finds that the construction of anon-commercial community pier for the private use of the future homeowners of Lots 15A and 16A is compatible with other neighboring properties and is recommended for approval as conditioned below. CONDITIONS 1. Permits shall be secured from all appropriate regulatory agencies through the Joint Permit Application (JPA) process prior to any development or construction of the pier and boatlifts. 2. The boat dock revisions and extensions shall be substantially constructed as depicted on the plan entitled "PROPOSED PIER, LIFTS AND PILES, PURPOSE: BOATING ACCESS," prepared by Professional Construction Consultants, LLC, dated 10/23/09, or as modified as required by the JPA Permit. 3. No commercial use of the dock shall be permitted. 4. A plat shall be recorded, prior to issuance of site plan approval, depicting a legal means of ingress/egress for Lot 15A and 16A to gain access to the pier on Lot 14A, as shown on the plan identified in condition 2 above. 5. The setback of the pier from the property line between Lot 14A and 15A is determined to be acceptable; however, there shall be no covered boat lifts, covered docks, or other covered structures located anywhere on or adjacent to the pier. NOTE: Further conditions maybe required during the administration of applicable City Ordinances and Standards. Any site plan submitted with this application may require revision during detailed site plan review to meet all applicable City Codes and Standards. All applicable permits required by the City Code, including those administered by the Department of Planning /Development Services Center and Department of Planning /Permits and Inspections Division, and the issuance of a Certificate of Occupancy, are required before any uses allowed by this Use Permit are valid. WEST NECK PROPERTIES, INC. / ZIRPOLI Agenda Item 1 Page 3 ` _ ~ .° ~ ~, > ~t .. ~ - L ,. .M ~ ~_~ ~ ~ Y i~;~ ~ ~ ~ ~1 ~~- ; -, ~ ~.. :~> `:} , ;~{~. q t t ~ , "~.. r a ~ ~~5i 6: »,.< 'q. AERIAL OF SITE LOCATIE~N WEST NECK PROPERTIES, LNC. / ZIRPOLI Agenda Item 1 Page 4 LYNNHAVEN E3AY N earara• w ,~.ar --:.t.~ TIEDOWN REFEREtVCEs aa~ ~, ~ww #2 `A: 2a' 3t' ~ 84' S6' C: 93' 96' ~: tOp' 103` E: 99' t04' F: 696• 602' G: B00' 603' b: 59A' Af)A' APO 1 NJF WOODHOUSE FALNLY LxItTED CRUST 1805 ESTATES CT. GPIN: 1499 t4 5390 PROPOSED MOORING PILES (4} PROPOSt~ 5'x75' FLOATING PIER .~ N bY4t'04• w ~-- ar-.sr ~RN•-•~..., BOAT UF7S TO BE •..~ R15fAIJ.ED W ADrORDA1tCE '~. ~.~ • _ _ j i _ ~..~ NRM uA1A471CIURFR'S ~"~ . . i ! - ~~ SPEI~ICAT~lFS. S p ~ .._ ~~ ~,~., ~ ,-._..~. - _ ~ Pty PARA13E1. TO Nro s N.w. ~ %~ " . . ~ " - ~ ~ ! "'~ ~ , ~ , = 1 NDTE: Av~ex. s~D' ! ~ ! ; : ~ uLW TO MLw \ ~' •f .: ~ ! i 1 l; _.. = % PIER EXTENDS 1 O5• ~ ~% sEAwARD of uLW j •, ~' . f` (15.8x) a. y .% SRE ACCESS ErY WATER ~' AND ACCESS ROUTE SHOWN ,~ NOTE 11 C»- i2U0212193982949): -~ ND ENCROACFN/EM (L~. PERMAIKNT _j OR TEMiORARY ABDYE GRADE . jr STRt1CNRE5) WLF. if. ALLOWED WRHa1 ~ LRILRY EASEMFMS LM(LESS~ ~ ~ Y D1~ DET+ARt1REIiT OF Pty N pF ~PL~ '1 zo' Pl~lk oRAwACE EASEMENT \ } (O6T. izaezlZta3oazws) 'Z \\ :~' • • ~ LOT 14A R{{~IAR T. 6AR11ETT ~' ~ ~ `, Lic. No. 18335 =• - -c, ,d ~ ~ ~ ~ ~" ~~~ '~\ SOON A L F'~ ar'1 ~~ ~~ S X2933 ~~ ~~ ~+~4~ LOT t4A r SAFETY FENCE (lYP) ~ ~'~' ~ 8 Af'0 2 I s ~"~ S~ ~i4~ 1,~0 ~, t16U. 2932 ~A~TES~DRNE 1 ~' DINE CoMMa+cE IMIY. Au. GPIN; 1499 t4 1952 ~ PEAMIIS NA14: ~tl ~ ~ ~'~ LOT 15A ,~ ~ - N ~ WD DN LOT tSA - 4835 N ~+ ~' E6TATE5 ORWE. 0 1O0' 20O' LOT 16A ~' ,,, ~, ~~ ~ 111 "~- I~ It3Y.27' sue, L .,, ~+Z~ts; ~ ~.3w~~T~R.zs.oa t" 100' TT ~~f R.~'~ ~ `W~_ ENGtl$ERB~ SERVNX.S pROUNxtA (rY; •" ~ ~~c• W' ~ ~' A REV. 10/23/09 PRO ~sij n~a-~ ~awi ~~c~ue.ca APO'S: PROJECT LOCATION: LYNNHAVEN 8AY PROPOSED PIER, LIFTS AND PILES . 1. WMODDHOItSE~AMILY FOR: WEST NECK PROP, INC. PURPOSE: 80ATING ACCESS ;j 1809 ESTATES CT. - 2933. 2935 ESTATES DR. DATUM: MLW 0.00 2. R. ZIRPOLI VIRGINIA BEACH, VA 23454 DATE 10/14/09 SHEET 1 OF PROPOSED SITE PLAN WEST NECK PROPERTIES, INC. / ZIRPOLI Agenda Item 1 Page 5 ZONING HISTORY WEST NECK PROPERTIES, INC. / ZIRPOLI Agenda Item 1 Page 6 1 11/24/09 CUP communit boat dock Granted "°'A DISCLOSURE STATEMENT APPLICANT DISCLOSURE If the applicant is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the applicant name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) WEST NECK PROPERTIES, INCORPORATED -ROBERT ZIRPOLI, PRESIDENT 2. List all businesses that have aparent-subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) NIA ^ Check here if the applicant is NOT a corporation, partnership, firm, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only if property owner is different from applicant. If the property owner is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the property owner name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) 2936 ESTATES DRIVE-0WNER ROBERT ZIRPOLI 2. List all businesses that have aparent-subsidiary' or affiliated business entityZ relationship with the applicant: (Attach list if necessary) N/A ® Check here if the property owner is NOT a corporation, partnership, firm, business, or other unincorporated organization. 8 See next page for footnotes Does an official or employee of the City of Virginia Beach have an interest in the subject land? Yes No X If yes, what is the name of the official or employee and the nature of their interest? N/A Conditional Use Permd Application Page 9 of 10 z 0 o~ w a.. w z 0 ~Z 0 v DISCLOSURE STATEMENT WEST NECK PROPERTIES, INC. / ZIRPOLI Agenda Item 1 Page 7 0 a a z 0 0 V DISCLOSURE STATEMENT ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will provide services with respect to the requested property use, including but not limited to the providers of architectural services, real estate services, financial services, accounting services, and legal services: (Attach fist if necessary) FLINT CONSTRUCTION COMPANY ' 'Parent-subsidiary relationship" means "a relationship that exists when one corporation diredly or indiredly owns shares possessing more than 50 percent of the voting power of another corporation." See State and Local Government Conflid of Interests Ad, Va. Code § 2.2-3101. s "Affiliated business entity relationship" means "a relationship, other than parent- subsidiary relationship, that exists when (i) one business entity has a controlling ownership interest in the other business entity, (ii) a controlling owner in one entity is also a controlling owner in the other entity, or (iii) there is shared management or control between the business entities. Factors that should be considered in determining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entities; there are common or commingled funds or assets; the business entities share the use of the same offices or employees or otherwise share activities, resources or personnel on a regular basis; or there is otherwise a dose working relationship between the entities.' See State end Local Government Conflid of Interests Ad, Va. Code § 2.2-3101. CERTIFICATION: I certify that the information contained herein is true end accurate. I understand that, upon receipt of notification (postcard) that the application has been scheduled for public hearing, I am responsible for obtaining and posting the required sign on the subject property at least 30 days prior to the scheduled public hearing according to the instructions in this package. The undersigned also consents to entry upon the subject property by employees of the Department of Planning to photograph and view the site for purposes of processing and evaluating this application. '~ ~~~~ Applicant's Signature l ~~-~~ Property Owner's Signature (rf different than applicant) WEST NECK PROP., INC. /ROBERT 1~1RY0(.1 Print Name Print Name t~'r ~r~ > ,~~. Condkional Use Permd Application Page 10 of 10 DISCLOSURE STATEMENT WEST NECK PROPERTIES, INC. / ZIRPOLI Agenda Item 1 Page 8 Item #1 West Neck Properties, Inc. Conditional Use Permit 1809 Estates Court, 2933 & 2936 Estates Drive District 5 Lynnhaven January 13, 2010 REGULAR Joseph Strange: We now address the remaining matters on our agenda. I will ask our Secretary to call the first item. Al Henley: The first item is West Neck Properties. And we have a speaker in opposition Sarah Woodhouse. West Neck Properties, Inc. Sarah Woodhouse: Pardon me? I'm opposed. Joseph Strange: Is there a representative on this application? Janice Anderson: The representative is going to speak first. Sarah Woodhouse: Well, okay. I thought he was calling me up? Janice Anderson: Yes, he did. Al Henley: I apologize. Joseph Strange: Is there a representative on this item? Chris Flint: Good afternoon members of the board. Chairman Strange, I'm Christ Flint, Flint Construction. I'm the contractor and the agent for Mr. Zirpoli. He is present here at the hearing. Joseph Strange: Did you want to make any statement? Christ Flint: I agree with the Planning Department's 1 through 5 suggestions for approval of the pier. Joseph Strange: Okay. Is there anyone here to speak in support of the application? Al Henley: We have three speakers in support. The first one is Vanessa Dallas in support. Joseph Strange: Please step to the podium please. Vanessa Dallas: Planning Commission, thank you for letting me speak. I would like you to ( know that I am the only. Item # 1 West Neck Properties, Inc. Paget Ed Weeden: Ma'am, state your name for the record. Vanessa Dallas: I'm sorry. Vanessa Dallas. I live at 2928 Estates Drive, and I am the only owner occupant adjacent to Mr. Zirpoli's property. Donald Horsley: Can you show us? Vanessa Dallas: Sure. Donald Horsley: There is a pointer right there. Ed Weeden: There is a pointer next to the microphone. Vanessa Dallas: I'm not familiar with all of these procedures. Is this it? All these kids would know all about this stuff. Let's see. Where am I? I am right there (pointing to PowerPoint). am Lot 12. Joseph Strange: Okay. Vanessa Dallas: I think Lot 15 & 16, are the lots in question here. It is my understanding through the Wetlands, my understanding about wetlands rule is the lot is allowed to have a pier. Well, there are two lots here that are asking for one joint pier versus two piers. I think that is a benefit to our neighborhood. Also, Mr. Flint has built every other pier in our neighborhood, and he has done a beautiful job. They have cleaned up after themselves. To my knowledge, we have not had any complaints. I haven't heard Mrs. Woodhouse's complaints but the fact that even the Woodhouse's are here, I have to find amusing because I have lived with the Woodhouse tenants for three years. They have asingle-family property that has two rental properties on it. It is a 1940s house, and I'm not sure the age of the other house. We have people speeding in and out of the neighborhood that live back there. They have motorcycle groups that go in and out of there. I hear chain saws. I've had to call the fire department on them burning trash and leaves on the property. Simply put, and this is a total understatement, the Woodhouse property is the scourge of the neighborhood. Joseph Strange: Ma'am, could stick to the matter at hand? Vanessa Dallas: So, I'm just going to let that lie. Joseph Strange: Can you direct your comments towards the application itself? Vanessa Dallas: Well, I just wanted to let you know the history. There was also a specific performance law suit between the developer and the Woodhouse family, so there is some bad blood there, but having said that, the Flints do a beautiful job. I'm in favor of a joint pier between Lots I S & 16. I'm sorry I didn't get in about the tenant carrying guns. But anyway, I think it would be a good thing. It will help property values and increase our tax base, which is good for ~_ everybody in the city. Thank you. Item # 1 West Neck Properties, Inc. Page3 Joseph Strange: Thank you very much for coming. Chris Flint: Sorry, Mr. Chairman, I didn't realize it was my chance to speak. I'll give you a little background on what we propose to do here. Mr. Zirpoli actually lives right here (pointing to PowerPoint). That is his personal house. He developed the entire neighborhood over here, and cleaned up all that farmland. These two properties right here are actually under the development by Mr. Zirpoli. Joseph Strange: Sir, please could you identify yourself again? Chris Flint: Excuse me? Joseph Strange: Could you identify yourself again? Chris Flint: My name is Chris Flint. I'm the agent. I'm with Flint Construction. Sorry. Anyway, what we are doing here and we have worked with staff, and we're trying to create a dual pier, dual; access for two owners. And what is happening here is we're trying to move it over on Mr. Zirpoli's actual lot to keep it out of the creek. That keeps the beauty of the creek, and the wildlife and all the other stuff. The dual access pier would be built to come down here with two boat lifts that these two people would share. And basically that is the argument. I guess the opposition is asking that we actually, and if you could go back to that one shot? That one is fine. I think that we actually build a walk path through Mr. Zirpoli's lot and then start over here with the pier. Beside intrude on Mr. Zirpoli's actual property that he hasn't approved on the other side of the trees, I would be tearing up all the trees into the CBPA area. If I follow the rules with it being 4 feet tall, then it allows the grass and everything to continue to grow under the pier. There is one argument about being four foot wide versus five foot wide. Four foot wide is okay on a normal pier two but when you're talking 600 and 700 feet long, and you have a family with you, two people can walk comfortably down a five foot wide pier, with their children if you want to hold their hand or something. You can't walk two people down a four foot wide pier. Mr. Zirpoli would actually save money by doing a foot less width, but that consideration was taken for the safety of the future residents. That is all that I have to say. I'm here for any questions. Joseph Strange: Okay. Thank you. Chris Flint: Yes sir. Al Henley: The next speaker in support would be Robert Zirpoli. Robert Zirpoli: Thank you for having me. My name is Robert Zirpoli, and I appreciate you having me here. I'm the developer. I developed Estates on the Lynnhaven, and I tried to incorporate everything that was perfect in that development. I think we've done a pretty darn good job there. We've built probably ten docks, and they're mostly fixed, and they're floating at the end. I want to have this cove, so it's opened so people that are going in there, they don't buy it from me, and build two piers going down there. I move the pier completely on my side of the Item #1 West Neck Properties, Inc. Page4 property so it is on my side of the cove. Some of it is over land so everybody has their own view. They both will share the pier. They both will have their boat docks so later on down the road I don't have two piers going down hoping that, and I want these people to look out their back door and have a beautiful view. It is a fantastic area, and that is what I'm trying to do instead of trying to do two. I'm trying to make it better instead of worse. Are there any questions? Thank you. Joseph Strange: Thank you. Al Henley: Okay, the next speaker in opposition is Mrs. Sarah Woodhouse. Sarah Woodhouse: Hi. That was lovely. Joseph Strange: Please identify yourself for us. Sarah Woodhouse: I'm Sarah Woodhouse. Joseph Strange: Thank you. Sarah Woodhouse: How long do I have to talk? Joseph Strange: Are you the only opposition? Sarah Woodhouse: I think so. Joseph Strange: You have as much as ten minutes. Sarah Woodhouse: Okay. First, I just want to thank you all for allowing me to come this morning and hear the briefing, and to be here today to express my concern about this matter. You all seem to be passionate about your work at the beach, and I appreciate that. I remember riding the rides at Seaside Park myself. In the interest of full disclosure, I do want to say that we do have tenants living on that property. My family has long roots of Virginia Beach. None of us are currently living here but we're still very emotionally attached to the beach and to that property. And pay $23,731 in taxes this year on the property that we have. I was sorry to hear the concerns about our tenants because we had just gotten rid of some tenants, and moved in new families and the houses that are there, and have done a lot of work on both houses. Maybe that is old news that was being shared earlier. I want to clarify one point from my letter. I think, when I had suggested the alternative plan, I think that some of the members of the Commission thought that I was suggesting that the two lots there be able to use Mr. Zirpoli's existing pier, which wasn't my intention. What I was suggesting was that rather than go through that inlet with that big pier that runs its entire length along our property line that they go around that little inlet, and have their floating boat ramp, sort of where it is now. But it just wouldn't go all the way through that cove. I don't know how many of you were able to go on the tour to see that little inlet but I think the situation is really unique, and is different from some of the other piers that people have __ built. Can you put that other slide up that just shows the plan? Just the drawing? So, I was Item # 1 West Neck Properties, Inc. Pages thinking that instead of having this long pier that really and totally is, and nothing against Flint Construction. I know nothing about them. I don't wish Mr. Zirpoli any ill either. It is just huge. This is like more than 600 feet of length of pier going across which is just a lovely little inlet. What I was hoping was there could be a path or a just if people prefer walking on a wooden pier that could come perhaps to this point then just have the pier cross here with the floating pier there. And to me, I feel like that would be better for everybody. I mean, this lot has been vacant since Mr. Zirpoli developed things. I believe, and I may be incorrect here but I believe that this is the Stackhouse that has been sitting there for a couple of years at least. It is so interesting that he would like to make these more marketable. If I were looking at either this lot or this house, I would prefer not to have this whole pier thing because it is really very beautiful. And, with this plan, I was just wondering if they couldn't have access to the bay, and people could still pull up their lawn chair, throw out their kayak and just enjoy this beauty without this massive expansion pier. See, this is running right along our property line in its full extent. So, I just want to clarify that I wasn't suggesting that they be able to use his existing pier but then maybe we could have a situation that would sort of work well for everybody. Earlier at the meeting, Carolyn said that you all had just approved a similar pier in the same neighborhood, and I'm just hoping that maybe isn't exactly true because I suspect that the situation is different in maybe one or more ways. One, I'm wondering if there was a third party whose property would be adversely affected as ours is by this. We still own the predominate section of that little inlet. I think no matter how nice a pier it is, it would clearly be marred by a pier going straight through it. So, I'm wondering if there was a third party who is as adversely affected? I'm wondering if the length of that other pier was in its tota1664 feet. Did it run the entire length of someone else's property? And did it traverse an actual gorgeous inlet. I mean that is my main thing it is just mamng the beauty of this inlet, and that is just running right next to our property. And she suggested that these lots both have riparian rights. I would suggest that is kind of what continual riparian rights are. Maybe there are riparian rights when you have a big waterfront acreage, and maybe it is something different when your lot narrows down to a tiny little flagpole that is only ten feet wide. So, I am kind of curious about that. And, one of the people at the meeting wisely wondered why it had to be shifted over. And I think it is because of the narrowness of those two lots. In the staff report, the evaluation it said they feel that Lot 16A, which is adjacent and is ten feet wide provides a buffer between the pier and the adjacent property to the south, which I'm saying that as the property owner to the south, we don't agree with that. We don't think it is a sufficient buffer, and we don't really see why they should get a variance from the 20 foot side yard setback. And, this isn't the first time that I had to come down here to sort of fend a proposal for a pier when I came once before, the Zoning Board actually found in our favor. And I guess it would be just great if we could just come up with a plan that would work for everybody so we can stop making these visits. So, in summary what is really important to my family is this is a unique case. We're concerned that this pier goes straight through this beautiful inlet, and we just would prefer a path around or a wooden walkway around ending close to the same point but does not go through that beautiful inlet. It might preserve the inlet for everyone's enjoyment including the potential new owners of that lot and that house. So, thanks for your time. Joseph Strange: Okay. Thank you. Item # 1 West Neck Properties, Inc. Page6 Donald Horsley: I have a question. Ms. Woodhouse, you said the pier is along your property line? Would you show us your property line? Sarah Woodhouse: Our property line is this. But this is only ten feet. I think. So, this is our property over here. And, so this is our property line. Then right there is the pier. Right here, so technically it is one lot over, but because these lots were drawn in a really strange way. It is not really any distance away. Donald Horsley: Can you show us the two houses that you have? Sarah Woodhouse: Yes. Can you go back to the other one? Yes sir. Okay. This is the old farm house and this is the cottage. Kathy Katsias: Now show us your property line now? Sarah Woodhouse: This is the property line in question. I'm not exactly sure where the property line is. Kathy Katsias: So, when you were showing us on the other plat, it was turned around. Sarah Woodhouse: But I think I had it right. Kathy Katsias: No. Joseph Strange: She did. Donald Horsley: I understand where you're coming from. Sarah Woodhouse: Okay. Donald Horsley: But the pier is not by your property line. It is one lot from the removing with the stem, counting the stem is what I'm talking about. Okay. Sarah Woodhouse: But, I mean the stem is all there is at that point. So, technically it is one lot. But it is also less the distance from here to there. The other question that I have is, and you mentioned it, that you would rather have a wooden walkway through there? Sarah Woodhouse: On the other side like not through the inlet. Not through that little inlet. Donald Horsley: Through Mr. Zirpoli's property you just would rather have a wooden walkway to go through there? Sarah Woodhouse: Right. Just because it is just so intrusive to have, and I think a lot of people may agree with me. I think it is very intrusive to have a pier that goes through an inlet. Item #1 West Neck Properties, Inc. Pagel Donald Horsley: I thought that was his reason for moving it over on the property to stay out of the inlet. Is it? Sarah Woodhouse: It does move it more to the edge but look back at the other one again? It is still going through it here. Donald Horsley: Okay. I don't have any other questions. Sarah Woodhouse: Okay, thank you very much. Joseph Strange: Okay. Thank you. The applicant now has three minutes. Chris Flint: Yes sir, just a couple of rebuttal items. The City and the Army Corp have both verified it. Ed Weeden: Your name? Chris Flint: I'm sorry. I have to say that each time. I apologize. Chris Flint, with Flint Construction, and I represent Mr. Zirpoli. The City and the Army Corps have verified. They are both riparian homeowners. Actually, could you go back to the plan drawing please? Those are some good shots showing the woods. I'm going to get these property lines straightened for you all. This is the property line that goes right here and it jots straight out. Okay. This is the property next door. This is Mr. Zirpoli's lot. His pier is totally on the other side of the property. This lot right here is undeveloped because of the economy of course. Ed Weeden: Chris, come back to the microphone and talk about this. Use the laser pointer. Chris Flint: This gets kind of confusing because it is really tight in there. The line right here plus I'm shaking. The line right here the pier actually crosses over into this middle lot and then goes over onto. I can't see it myself it is so tight. Okay. The pier is actually on Mr. Zirpoli's property, and it is just outside of the creek if you're facing the waterway to the right. And, the City of Virginia Beach and the Army Corps have made rules that when you build piers over marsh grass to protect the environment it has to be a certain height. Now all of those rules are going to be followed, so we're not doing any damage to any kind of wetlands. The more detrimental damage would be forme to go through the woods into Mr. Zirpoli's actual property through his woods and build a structure on top of that. That would destroy trees and everything else. So, the way that we are doing it across this marsh grass is approved by all three agencies, and that is how they protect the grass. It grows under. We're not killing anything. I'm just going to drive woodpile through the grass and that is it. That is all that I have to say. Joseph Strange: Does anyone else have any questions? Janice Anderson: I think what we cleared up from this diagram right here is that his property line includes part of that cove. Is that correct? Item #1 West Neck Properties, Inc. Page8 Chris Flint: Yes ma'am. His very left hand edge if he is facing the water includes part of the cove. Janice Anderson: The cove. Chris Flint: He has let that pier come over as close to his property as possible within the rights of this jurisdiction to allow the creek to stay open so it is just on the right hand side of the creek. Janice Anderson: Is there any other questions? Phil Russo: If I understand correctly, I think Ms. Woodhouse was asking that the pier actually be started farther down the property line. Chris Flint: Actually, she is asking that the pier start right here. Phil Russo: Yeah. Chris Flint: Well, that would mean that we would have to build something through all of these woods to support the structure. Phil Russo: Right. ~_ Chris Flint: And that would actually be on Mr. Zirpoli's property. Phil Russo: And I think what your saying is... Chris Flint: Were just to the right of his actual property. Phil Russo: But I think you're also saying that would actually create more environmental impacts. Chris Flint: Absolutely. I would be trampling over roots and whatever trees I didn't have to take out in my way, the piling could kill the roots and the trees would die in a year or two. Joseph Strange: Okay. Al? Al Henley: Mr. Flint, one last question. Chris Flint: Yes sir. Al Henley: The creek as we refer to it, on low tide is that amicable? Chris Flint: During the summer. Right now, no, because right now because during December, January, and February the tides are running a foot lower than normal. In the summer, you're talking inches. He could get a canoe in there but no boat. Item # 1 West Neck Properties, Inc. Page9 Robert Zirpoli: In the past two years there have been at least two feet of water in there. Joseph Strange: Identify yourself please. Robert Zirpoli: Robert Zirpoli. I'm the land owner. For the past two years, since we've dredged, it's gotten fuller and fuller in there, and basically I own half the cove. I've moved all the way over to the right side to get it out of the cove and to get everybody we knew further and further away from Mr. & Mrs. Woodhouse's property. That is it in a nutshell. Chris Flint: We can't move it any farther away basically. Robert Zirpoli: And, I've had a 25 foot boat there in and out many, many times. Joseph Strange: Are there any other questions? Al Henley: There are no other speakers. Joseph Strange: I'll open it up for questions. Jay Bernas: A quick question. In the application it says that you're applying for a JPA. Has that been approved yet? Chris Flint: No sir. The Planning Department won't approve that without this approval. Joseph Strange: Repeat that. Robert Zirpoli: They won't approve it until you all do. Chris flint: That is correct. The City part but the Army has approved it, and the State has approved it, and all that is being verified on this decision. Joseph Strange: Are there any other questions? Thank you very much. Chris Flint: Yes sir. Just to reiterate. I agree with the Planning Department's five conditions. Joseph Strange: We're going to open it up for discussion now among the Commissioners. Ron? Ronald Ripley: Mr. Whitney, if these two lots came in and asked for a separate pier for each lot would they have the right to have those. Jack Whitney: They would not have to come before this Commission. The only reason why they are here is because technically a joint pier is considered for the purposes of the Zoning Ordinance to be a community boat dock/pier. And that requires a use permit. If they wanted to come in individually they would not have to come before the Commission. Item # 1 West Neck Properties, Inc. Page10 ~ Ronald Ripley: I think for the reasons that the staff has stated in there, when you're ready for a motion, I'll be happy to make it on this application. Joseph Strange: Is there any other discussion? Okay Ron? Ronald Ripley: A motion to approve. Joseph Strange: A motion has been made by Ron Ripley and a second by Dave Redmond. AYE 11 NAY 0 ABS 0 ABSENT 0 ANDERSON AYE BERNAS AYE FELTON AYE HENLEY AYE HORSLEY AYE KATSIAS AYE LIVAS AYE REDMOND AYE RIPLEY AYE RUSSO AYE ,- STRANGE AYE Ed Weeden: By a vote of 11-0, the Board has approved the application of West Neck Properties, Inc. v~~Sr N~.U~-~~-~PL~~~.S ivls Angela Vtlelker; _ Pz~jeet. Coortlirrato ~lht G~stniction 371: ~d Wit. P`ortsin+~uth:, V'r~giua~~7E} ' - ^ r.. ~ _ t ~~~~ ~) ~ ZQq~ ~ti~ve~~er' ~"7, 2flll9 ~~~~ ~F CSR-~~~z.. Tlian~ off. v :ntuci~. for sen~itixg us a copy of fittest l~Ieck; Pmperttes, Tnc's p]a~_to b~]d ~': ~'1' pier add ac~rit ~ o~tr property ~zx the _Lynn~aen 'Bay; grid for ~ziving ~ the op'prirty lo. respoia~ #o your lr. :4s my clawlater ~a~h eaiuedd to you ~ _~ phone co~u~rsat~onrs ~o~ an October ~. ~:~....~ ~:..... 30~`and ~+inveml~er 2'~~, vcre der object to. the proposed p'Ean .off' West 1~leck Froperties.Inc~ to~. build a pier through the: eow~ anal wetlands ac~;jaieent't©; atF:r }mp!er~.y a~ ~ 815 ~st~te~s Coertt. Iti ar~drti'ot to explaining ocr ob,}ee~ion ~we wtiatltl like toy use this appoirtuaaity to suggest an aite~aiive mew fo acaass the:~ver which, wcrnid.:be sigt~t~candy more e~virorin~eirtally sensi~ve ahd more nei~Yrborly as swell. Qtu-stzgge,~tQ~ is thaf rather than. er~al~ng biildittg ~ais_arriassive pier aca~oss tie cc~^ve n~ tftr~ottgh the we#~aazds,; that:they irtst~ad create a. sinarple, atti~~tive, functional, ~d ~rolitrusive path; around lvlr ~i~rpol's side ~of tlae co~r±e sand oqt ~ a drier i~. ~e gay lx their. ~1 pat{i- like this. could:.spaz~ tlre' cove; wetlazids ~c~ the hettihs anr~ o~ier~ld]s`fe who nub thus appealiirg;cove their hare; from the°earorrxrous shading arrci envir~rzaFnen#a] dibakx~~tlaat~wat~]d i2e:caused. ~iy-a pier gas Iarge as this.. ~.eir prc~po!s~ calf f+~r.a piex whose rx~ain porn. t~van].d be 5U(3 ~ by S' ft, and whack woutd~ have two sh4.ar~ t1~t ~oulc~ ~ 8~5 l~ isy ~ ft mad 79~~ ~~hy 5 ft. Veen t~itsg, to~ visuals how long this wo~Id be, ix't~rrns fluf it. is tla~~length of carte entire, foofba~]: field gl~;tvw© thirds tyre ledglh oaf amather .foatball.frcld. ~ fact, tnge'~lier with ilie shoes pieces:t3epiedwoulcl le~.longer Haan the length~oft;vo £aofba[l fi'e]ds. Best we can tell,, because of the odd way lots #16Ar and #fI:~A were dra~w€i, this whale :_„ ,~ massrv'e;errs~ wtan];d': b$ ring bong s~dea,our~y and.'tr~Iy a'~ut ~ ~ feet ~ _.... am property irne tlae eirtt~ way In fast wlaext you st+~dy ~ way these Iots v~re~re d~a~a,. rt is.reasonhble•to q~esti:on w]aetlrer or not these two lots:.have r~gar~:an rights.at al].. 'fey took irtore I~lc~~~ad~"renal st~ttxlrvi~on ~l-cle-sad low with stye ~tarravu pra~ttasinns that don°t provide aaiy real ~r~terlrozrt' footage. ~ Zirpt~li's +awn let; #l4A(293~ is clearl~- a waterfront lnt ~.~ expansive i~ra#erfrv~t footage and if it is t~:,~ intention. to .provide ae~ss t~a~pier for the potential future purehasers~c~f ]ats ~.6A and 1;~~1:, theca the most ab~ous and:~six~gh~~irtivatd suititc~n appears to iae t€~~prc~vide that acces~a around liis szt~e of the`~cove. . '~ wfsl ~V~r:~a~:'~rcll.tin ~ti;s efforts tc~ se~.i tkr~ t~ loth is ~uvn anti ii~i~erstartdat. ilia sal i:~`lilCeiy m.v'fra#ri his ns~ire iii Make'tliesc lots m~a~ rettii to' f ~.~.- I ~ ~ ~~ =~1ZI~5 w~~r N~'~ ~ ~2~~ . pc~~tenfial fi~.itt~ ~putchas~s by; ~ra~c~i~ soYrie~$ccess to tiie v~ater:fvr tl~es~ lots. ~o fe~i tlia€i ~ prc~?asal cauiti pra~vzde access but alsa ~eai~xtaite tk~e prime beauity of ~e C,ttve ti3ai ~zoult~ be desyed: were~e to buiitt~ pier tv~a fc~tb~t fields m iei~~i ac~o~s ~t. 'fliax~it you for yqur time for pass~ig ala~g our.cancems tti tiae V~"m~a l~i~vie Re~so.~rce ~ri~iaission, tiie Army ~otp of igi~ieess and i~ie City of '~~~;Bcaeh. If t~iere: is anj!one else~that I. need .tom be :ln contact:i~ritk~ pled let me icnc~v+i: S ii~cex~'1;y ~~, Cteneral Fortner ~'oa~~iuse Fay Partnerslii 9l4 ~ald~i~ Itd Rtchrx~car-d, VA 2322 ... _. ~.: :7~ a :.,. ~ ~ ; ~ 4 ~i{.~ ~. ~. f ... 1~ ~~ :~ ~ 'FAY%'~ ... f:; i .:. ,...~..~.... .. l -68- Item V-K S. PLANNING ITEM # 58661 (Continued) Voting: 10-0 (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, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Ron A. Villanueva -67- Item i~ K.S. PLANNING ITEM # 58661 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED the Ordinance upon application TOWN CENTER ASSOC, L.L.C. re closure of portion of Market Street at Columbus Street. Ordinance upon application oJTOWN CENTER ASSOCIATES, L.L.C., re closure of a portion of Market Street, located at the northeast corner of the intersection of Market Street and Columbus Street. DISTRICT S - LYNNHAVEN DISTRICT. The following conditions shall be required.. 1. The City Attorney's Office will make the final determination regarding ownership of the underlying fee. The purchase price to be paid to the City is normally determined according to the "Policy Regarding Purchase of the City's Interest in Streets Pursuant to Street Closures, "approved by City Council. Copies of the policy are available in the Planning Department. No purchase price shall be charged in this street closure, however, because the Development Authority (the current owner of the property affected by the street closure) shall reconvey to the City, as consideration for this street closure, any interest in subjacent air space that no longer needs to be reserved by reason of this street closure. 2. The applicant shall resubdivide the property and vacate internal lot lines to incorporate the closed area into the adjoining parcels. The plat must be submitted and approved for recordation prior to final street closure approval. 3. The applicant shall verify that no private utilities exist within. the right-of--way proposed for closure. Preliminary comments from the utility companies indicate that there are no private utilities within the right-of--way proposed for closure. If private utilities do exist, easements satisfactory to the utility company must be provided. 4. The applicant shall cause to be conveyed to the City any interest in adjoining subjacent air space that is no longer needed by reason of this street closure. In exchange, the City shall convey to the Development Authority the closed portion of Market Street together with the closed portion of subjacent air space, subject to the same terms and conditions set forth in those Deeds of Dedication recorded in the Clerk's Oj~ce of the Circuit Court as Instrument Numbers 200212313087765 and 200402100024237. S. Closure of the right-of--way shall be contingent upon compliance with the above stated conditions within three hundred sixty ftve (365) days of approval by City Council. If the conditions noted above are not accomplished and the final plat is not approved within one year (March 24, 2010) of the City Council vote to close the right-of--way, this approval shall be considered null and void. 6. If required by the Public Works Department, the applicant shall relocate, in a manner satisfactory to the Public Works Department, the existing traffic signal pole and any other signal equipment now located within the right-of--way proposed for closure. Ste` `"^°~~~ f0~ ?' ~ ~T ' i~ ~~ ,~ ~~; ~ ~"` ri 44 r ~~ ~~ CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance extending the date for satisfying the conditions in the matter of closing, vacating and discontinuing a portion of that certain street known as "Portion of Market Street to be Closed Area = 8 Square Feet" as shown on that certain plat entitled "PLAT SHOWING PORTION OF MARKET STREET TO BE CLOSED, VIRGINIA BEACH, VIRGINIA". (Town Center -Block 9, GPIN 1477-54- 1429) MEETING DATE: March 9, 2010 ^ Background: On March 24, 2009, City Council approved the closure of an 8 square foot portion of Market Street right-of-way and 7 square feet of adjoining subjacent air space for the purpose of constructing a 15-story building consisting of apartment units, hotel, conference center and retail space. ^ Considerations: There were six conditions to the approval of the street closure: 1. The City Attorney's Office will make the final determination regarding ownership of the underlying fee. The purchase price to be paid to the City is normally determined according to the "Policy Regarding Purchase of City's Interest in Streets Pursuant to Street Closures," approved by City Council. Copies of the policy are available in the Planning Department. No purchase price shall be charged in this street closure; however, because the City of Virginia Beach Development Authority (the current owner of the property affected by the street closure) shall reconvey to the City, as consideration for this street closure, any interest in subjacent air space that it no longer needs to be reserved by reason of this street closure. 2. The applicant shall resubdivide the property and vacate internal lot lines to incorporate the closed area into the adjoining parcels. The plat must be submitted and approved for recordation prior to final street closure approval. 3. The applicant shall verify that no private utilities exist within the right-of-way proposed for closure. Preliminary comments from the utility companies indicate that there are no private utilities within the right-of-way proposed for closure. If private utilities do exist, easements satisfactory to the utility company, must be provided. Market Street -Town Center Block 9 Page2of2 4. The applicant shall cause to be conveyed to the City of Virginia Beach any interest in adjoining subjacent air space that is no longer needed by reason of this street closure. In exchange, the City shall convey to the City of Virginia Beach Development Authority the closed portion of Market Street together with the closed portion of subjacent air space, subject to the same terms and conditions set forth in those Deeds of Dedication recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach as Instrument Numbers 200212313087765 and 200402100024237. 5. Closure of the right-of-way shall be contingent upon compliance with the above stated conditions within 365 days of approval by City Council. If the conditions noted above are not accomplished and the final plat is not approved within one year of the City Council vote to close the right-of-way this approval shall be considered null and void. 6. If required by the City of Virginia Beach Public Works Department, the applicant shall relocate, in a manner satisfactory to the City of Virginia Beach Public Works Department, the existing traffic signal pole and any other signal equipment now located within the right-of-way proposed for closure. The applicant has worked to satisfy the conditions but requires additional time to complete satisfaction of conditions 2, 3, 4, 5 & 6. Staff concludes that the request for additional time is reasonable. ^ Recommendations: Allow an extension of 12 months for satisfaction of the conditions. ^ Attachments: Staff Review Location Map Disclosure Statement Planning Commission Minutes Ordinance Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Department City Manager:~~ PK, Item #18 Town Center Associates, L.L.C. Discontinuance, closure and abandonment of a portion of Market Street Northeast corner of the intersection of Market Street and Columbus Street District 5 Lynnhaven February 11, 2009 CONSENT Joseph Strange: The next item is item 18, an application of Town Center Associates, L.L.C. for a discontinuance, closure, and abandonment of a portion of Market Street located at the northeast corner of the intersection of Market Street and Columbus Street, District 5, Lynnhaven with six (6) conditions. Mike Nuchols: Good afternoon for the record, Mike Nuchols representing the applicant. The applicant is in agreement with alI the conditions. Joseph Strange: Thank you very much. Is there any opposition to this matter being placed on the wnsent agenda? If not, the Chaianan lzas asked Ron Ripley to review this item. Ronald Ripley: Thank you Joe. This is really a housekeeping matter too_ It's a discontinuance, closure, and abandonment of a little small portion, actually the northeast corner of Market Street and Columbus Street at the Town Center, It really kind of squares the block off for this next development that Armada Hofller will be developing, which is a 208-unit apartment building, a hotel, and some retail component. It does include adjacent air space, which is, in the case of zero lot line developments like this, where you build right up to the right-of-way. Sometimes you might impede the right-of-way with your foundations or your beams and this basically it avoids those conflicts. There is method worked out for the City. So, it was very minor matter, and we felt that it ought to go on consent. Joseph Strange: Thank you Ron. Madame Chairman, I make a motion to approve item 18 Janice Anderson: We have a motion by Joy Strange and a second by Gene Crabtree. Mr. Redmond? David Redmond: Madame Chairman, I will be abstaining on item 18, as I have a business conflict. Janice Anderson: Thank you. AYE 10 NAY 0 ABS 1 ABSENT 0 ANDERSON AYE BERNAS AYE Item #18 Town Center Associates, L.L.C. Page 2 CRABTREE AYE HENLEY AYE HORSLEY AyE KATSL~,S AYE LIVAS A~ REDMOND RIPLEY AYE RUSSO AyE STRANGE AYE ABS Ed Weeden: By a vote of 10-Q, with the abstention so noted, the Board has approved item 18 for consent. #18 February 11, 2009 Public Hearing APPLICANT: TOWN CENTER ASSOCIATES, LLC PROPERTY OWNER: VIRGINIA BEACH DEVELOPMENT AUTHORITY STAFF PLANNER: Carolyn A.K. Smith REQUEST: Discontinuance. closure and abandonment of a portion of right-of-way known as Market Street, and subjacent air space, at the northeast comer of Columbus Street and Market Street ADDRESS /DESCRIPTION: Property located on the northeast corner of comer of Columbus Street and Market Street GPIN: ELECTION D (STRICT: SITE SIZE: AICUZ: 1477541429 LYNNHAVEN 8 square feet: portion Less than 65 d6 DNL of Market Street 7 square feet: subjacent air space SUMMARY OF REQUEST The applicant requests closure of a very small portion of the Market Street right-0f-way and subjacent air space in order to square off the comer and ultimately construct a 15-story building consisting of a retail component and up to 208 units as a mix of hotel and apartments. A Conditional Use Permit is required, and follows, to construct this structure. Specifically, the request is to close eight (8) square feet at the corner of Columbus and Market Streets and to close seven (7) square feet of subjacent air space, for improvements to the site. As part of this agreement, the City will receive 36 square feet of subjacent airspace to be conveyed by the Virginia Beach Development Authority. TOWN CENTER ASSOCIATES /VEDA Agenda Item 1:8 Page 1 LAND USE AND ZONING INFORMATION EXISTING LAND USE: Undeveloped vacant site SURROUNDING LAND North: USE AND ZONING: Commerce Street, restaurant and retail / B-3A Business District South: Columbus Street, office, open space / B-3 Business District East: Central Park Avenue, apartments / B-3A Business District West: Market Street, hotel and apartments / B-3A Business District NATURAL RESOURCE AND CULTURAL FEATURES The site is within the Chesapeake'Bay watershed. There do not appear : to be any significant environmental or cultural features on the site. IMPACT ON CITY SERVICES WATER 8 SEWER: There are no water or sewer lines in the area proposed for closure. PRIVATE UTILITES: Preliminary comments from private utility companies indicate that there are no private utilities within the area proposed for closure. Recommendation: EVALUATION AND RECOMMENDATION Staff recommends approval of this request with the conditions below. Evaluation: The Street Closure Viewers met and determined that no public inconvenience will result by approving the requests to close eight (8) square feet of the right-of way and seven (7) square feet of subjacent air space at the northeast comer of Columbus and Market Streets. Most of the streets in Town Center were dedicated with subjacent rights, meaning, a differentiation is made between ownership of property above, below, and at grade. As the subjacent rights are those under the land that, in this case, the City owns, the dosure of the right-of--way includes property below grade as well as above grade in order to avoid possible future legal encroachment issues with underground supporting structures and utilities serving the improvements constructed on adjacent blocks. As many of the buildings in Town Center are constructed with a zero setback from the right-of--way, the foundations for the buildings (some of which are constructed on deeply driven pilings that may not be TOWN CENTER ASSOCIATES / VBDA .Agenda Item 18 -Page 2 driven exactly vertical) and utility facilities serving the buildings may protrude beneath the surface of the adjacent streets. The request to vacate the seven (7) square feet of subjacent air space means that the City will relinquish its rights to the property beneath a small portion of the right-of--way to the Virginia Beach Development Authority (VEDA). Upon closure of the eight (8) square feet of Market Street and the City's relinquishment of its subjacent air rights, the underlying area in which any supporting structures and utilities may be located can be done so without constituting encroachment. As part of this agreement, the Virginia Beach Development Authority (VEDA) will also convey 36 square feet of subjacent airspace to the City. This area was reserved by the VBDA per the 2002 Phase 1-A subdivision plat and related Deed of Dedication. A 2004 resubdivision plat and related Deed of Dedication dedicated an 18-foot wide strip of Market Street immediately to the north of this area, leaving out this portion of the subjacent area. This action will simply clean up and finish off what probably should have been included in the 2004 resubdivision. Staff recommends approval of both the closure of eight (8) square feet and seven (7) square feet of subjacent airspace at the northeast comer of Columbus and Market Streets subject to the conditions below. CONDITIONS 1. The City Attorney's Office will makes the final determination regarding ownership_of the underlying fee. The purchase price to be paid to th a City is normally determined according to the "Policy Regarding Purchase of City's Interest in Streets Pursuant to Street Closures," approved by City Council.. Copies of the policy are available in the Planning Department. No purchase price shall. be charged~in.this street closure; however, because the City of Virginia Beach Development Authority (the current owner of the property affected by the street closure) shall reconvey to the City, as consideration for this street closure, any interest in subjacent air space that no longer needs to be reserved by reason of this street closure. 2. The applicant shall resubdivide the property and vacate internal Iqt lines to incorporate the closed area into the adjoining parcels. The plat must be submitted and approved for recordation prior to final street closure approval. 3. The applicant shall verify that no private utilities exist within the right-of--way proposed for closure. Preliminary comments from the util ity companies indicate that there are no private utilities within the right-of--way proposed for closure. If private utilities do exist, easements satisfactory to the utility company, must be provided. 4. The applicant shall cause to be conveyed to the City of Virginia Beach any interest in adjoining subjacent air space that is no longer needed by reason of this street closure. In exchange, the City shall convey to the City of Virginia Beach Development Authority the closed portion of Market Street together with the closed portion of subjacent air space, subject to the same terms and conditions set forth in those Deeds of Dedication recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach as Instrument Nurnloers 200212313087765 and 200402100024237. 5. Closure of the right-of-way shall be contingent upon compliance with the above stated conditions TOWN CENTER ASSOCIATES /VBDA Agenda Item 9 8 -Page 3 within 365 days of approval by City Council. If the conditions noted above are not accomplished and the final plat is not approved within one year of the City Council vote to close the right-of-way this approval shall be considered null and void. 6. If required by the City of Virginia Beach Public Works Department, the applicant shall relocate, in a manner satisfactory to the City of Virginia Beach Public Works Department, the existing traffic signal pole and any other signal equipment now located within the right-of-way proposed for closure NOTE: Further conditions maybe required during the adminisfration of applicable City Ordinances. Plans submitted with this rezoning app/ication may require revision during detailed site plan review to meet all applicable City Codes and Standards. TOWN CENTER ASSOCIATES / VBDA Agenda .Item. 18 Page 4 AERIAL OF SITE LOCATION TOWN CENTER ASSOCIATES / VBDA Agenda Item 18 Page 5 VIRGINIA BEACH BLVD tea' fn v ~p~2~ ' U O\i z ~~ ~~ 1- N t<Il ~~ S ~ ^~ a .. 50UTHfRN e~w I.oeATION MAP - san~E: 1` d Gg1A1IE]P1'.L<' S7REF7' ~Bl ~,Q/wJ y~ r~ss (~vsr. ~ctascr2asar~z.~sy (MCSr. ~cn~o2~acn2,~sr~ r af+~7aAn snl~-r~ ~vst. urc~axs~o~ (~~"J - 99' 5' ' "' E------L_ -200.26'--- N 3,47.4,694.1.037 N 3 474 388,5046 E 12,175,006.2284 E' 12;175,206.4635 I r sr,~c>~r aw sp,~r~ f~nrsr. ias~,~~) (,w.sr ,I2ao~aa~+~x.~rl I lavsz ,claarar~eee~+~J (npl 11DYYN CENTER BLOCK 9 (1NST. ~420040R060083049) AREA= 44.062 SF OR 1.012 AC OPIN:1477 54-14?9 NOTE: 1AERIDIAN SHOWN HEREON IS BASED ON THE VIRgN1A STAY PLANE' COORDINATE SYSTEM. SOI7TH ZONE, NORTH AMERICAN DATUM 1983/1993 HARK (NAD 83/93. ~ HARK) ANp REFERENOED TO VIRgN)A BEACH q'S STATIONS "4737-1744' 4c `4793'. G Rqr/T-Qr !>pfYLdEgT~.TIAAV (11S'T. /~A2?b11'A21.iP74SPf .-SIDE DETAIL 'A' r----,eewr-o~ .war ar;u~~v n, a Vi W tN w- -~'L{J.OJ ~- -s1 f arula~is sna~-r (Y~w any (.~ Irv. sac ~xJ (AVSr, zaazr2.xe~ae~~a„r~ ~ AS PER CLIENT KCR 1-2 PLAT SHOWING PORTION OF MARKET S'1REET TO BE CLQSEO VIRGINIA BEACH, VIRG/NIA ~~ ~~ ~(f) PROd N0.:06161B DRAWN; KCR DATE: 12-t8-2008 SCALE; 1' SURVEY OF AREA TO BE CLOSED TOWN CENTER ASSOCIATES / VBDA Agenda Item 18 Page 6 CURVE TABLE CURVE. RADIUS LENGTH T .GENT CNDRD BEARING DELTA Ct 25.Op 90:>8 5.48 10.70 S 12'42'38' E 24'42'36' C2 Z6.00 10.71 6.42 10.85 S 11'19'42" E. 2185'04" ~ 28.00 3.42 1.71 3,43 N 28iD1`48' W 7'60'21" UNE TABLE c LENCn1 L1 ' " 10.45 L2 2, ~ '0.97 L4 3.00 ~ 11:08 l.6 N • 1272 3 I o ~~ SUBJACENT AIR 9PAGE TO BE OLOSED. Y AREA - 7 SQUARE E FE T ~ 3U8JAGENT AR1 SPACE TO BE CONVEYED g D . /$, = TO THE dTY OF NRGINM BEACH. ~.,~ AREA = 36 SQUARE FEET PORTION OF MARKET S ' TREET AND 3 PUBLIC 8 ~SS/Lt ' 8tE53 AND UTILITY BEE OLOSED, AREA - 8 ~ N 00'24'10' W ~ APt7 81'/ 1 S ~ 1a4s' ~1 +~+~T-a-~trar~,oav ~ L8 r 1~zT?Jt~DI~CJJ ` ~' Sr L3 N 8933''33` E r_ ~l LS N 9~3'b3" ~,, J' ~K' ~ U/Y/J7'EA~ ' ' ~ VT ~ ~NL2NT AAP .A°AG~ 2.28 w 1~17!1~7?!2JliSNTAf'S) (iK1;7. lA~g2I?,17f l~vs''°~aar°a~ (~J ' ~ l ~'+a ~ ~iraJ ,AETAa A 5'CAtL r• a 10' 1 REV AS PER CLIENT ~~ 7_, PLAT SMOMBNC PORTION OF MARKET STREET TO BE CLOSED VIRGINIA BEACH, V1RGtN1A SHEET 2 ~ PROJ. H0,:.08161B DRAWN: KCR OATE: 12-18-2006 SCALE: 1' DETAIL: SURVEY OF AREAS TO BE CLOSED. TOWN CENTER ASSOCIATES / VBDA Agenda Item 18 .Page 7 ELEVATION OF BUILDING PROPOSED (LOOKING AT CORNER OF COLUMBUS STREET AND CENTRAL PARK AV'ENUEI TOWN CENTER ASSOCIATES /VEDA Agenda Item 18 Page 8 1 03/09/04 CHANGE OF ZONING B-3 to B-3A) Granted 2 03/11/03 STREET CLOSURE Granted 09/24/02 CUP multifamil dwellin s Granted _ 3 _ 05/10/05 CHANGE OF ZONING B-3 to B-3A Granted 4 06/28/05 _ CUP muftifamil dwellin s Granted 5 02/08/00 Creation of B-3A Pembroke Central Business _ Granted Core District ZONING HISTORY TOWN CENTER ASSOCIATES / VEDA Agenda item 18 Page 9 ~"~ _._ DiSCL:OSUR~ S'TA"I"EMEiVT ~: APP !C 1, ANT pISCLUSURE 1f the applicant ie a corporatfUn, partnership, filrm, business, or other unincorporated organiaattgn, complets,the following: 1. List the applicant Hams (allowed by the names of all officers, members, trustees, ....partners, etc:.below; (Attach !!st if nt?cessary) Towo Ceater`Aysvcates, L.L.G, MemUers; City Center Associates, LLC and Arroadd Hoffler Propert~.es, h.T..C,; Managers: Loins 'S . Haddad, Anthony P. Nero end Gerald-S Uivaris 2. Llstall businesses.-that have aparent-subsidiary' or affiliated business-entiry2 tetatgnship with the appticartt: (Attach Jrst lfnecessary) Armada/Hoffler sntit~es and nu®ervus Tvwn Center-related and oxher unrelated husiness entities ere affiliated >w3.th -the ApRllcant through ks print pa s; an e v er, - ussel it 'an nt an. AItd hi"va~ig mntftbpx thfriftnh S~ ~Lr~rin..1 f'raral~~ nitnrY _ ~Y[J; D Ch~xck Mara ii'the appiicant~s AIDTa~t~rporation, partnership, film, busiress, or othecunincorpora#ed argarizatiori. PROPERTY©WN~Ft pISCI_QSURE Complete this s~~tion.c3nly if p~vperfy ownArls ditl`eidnt from appliearrt. If h® property owner is a carpa>'atian, partnership, firm, huslness,'orother ~unlncnrporated arganiz~tion, complete the following: 1. Lisl the property.owner nar-n a followed by he names of all officers, members, trustees, partners, etc, below: (Attach list if necessary) :City of Virginia Beach 1)e,welopment Authority (tee ii.st of members 'F~ttact~ed ea.rxhibt ~~~,,~ ~. List III businesses that fiav~ a parent-subsidia ' or affiliated business emit ry y2 relationship with the applic~nt:,(Attech Us! FnecessaryJ -~_.. _.. ~ Check here if the ;property owner is Nd7 a corforation, partnershrp, :firm, business, .or other. unincorporated organization. see next,pacte ror foci'tnole6 Does an official ar em(~loyee otf -the City of ViCginie Beach have an iia.terest:ira he subject lead? ~ Yes No If yes,. what is the na~ie of the official or en-~ployee and the nature, of their interest? (':rJe hi. r i _ kn-rise?1 i13A1.7 TOWN CENTER ASSOCIATES /VEDA Agenda Item,,9.8 Page 10 DISCLOSURE STAT)EMt~~IT' AD[71TIONAL DtSCLOSt1F2E5 Listall known contractors or b-~siriesses fhot have or will provide sentices with respoct to the requested.property use, including but not limited to;the prpvlders ,7f architectural services, rest estate setvtces, financial services, accounting services, and legal services; tAttaCh Ilst if necessary) Totm Center Asaocietes L L C t'agtasrt $ Frieden P C MsA P C, I)ivaris Real ZzStete, Inc.; Cherry, Bek~aYt ~ Nol3and; Armada/Noffler t'onstruction Co.; Ilaattv'Narvey & Associat:®s Architects ' "Partsrit-subsidiary'relationship" means's retationt;hip that axtats when one corporation diteotly arindirecdly awns shares possessing more than 5ti percent of the voting power of another corporation;` See S.tata and ioc21 Qovemment Conflict of interests Act; Va: Code §, 2.2-3101.. z "AfOliated business entity relations hip" means "a relationship, other than parent- subsidiary rolatlonship,.that exlafs when (i) onn business entity hAS a eontrolling Qwnership tnierest to the,other business otttily, ail) a cotltrolling owner in one entity is also a arontrQll~ng owner in the alher.entlry; or #iif~ there is shat'ed management or control-batwe®n'the business entitles. ~,yatots'that should be ~onsiciered in dotem~ining the e~tstence of a^ ari0iaied 6uelness eMily rglationship Ihcludo that the< same person ar substantially Nte santo person awn or-'mana~e~the twaentitles;` iierQ are ~rotnmonw contming(dd "funde-qr easels; ~thtr husin®ss entities shore the use of the sarrt~ oittces nremployges or otherwlsr~ share actlvitles, resource:3~ar pdraonne) on >a regular boels• or there is ntherwlse a close. tivorkinq, reietianship batWee3n qrA entlttA6." Soe State rand t.acat GovarnnlertConflicl of Interests Act, 1/a. Code § 2.~-314i . C~RTIF1GATtt;}N: i cenlfy that -the Intotmat~ton carnained herein is true and accurate, I understand that;,uponrr:aaipt ainottftcatian (prtaatoard) that the tapptlCOtlan h~ bean scheduled tnr publrchearing, 1 am respohsibte tor.abtalning al--~dpostlnp the regUfrad'slgn on the subieCl property al least 3Q days prior to the snt~edulod public hearing accord!ng to the instructions In this ~eckage. The undersigned alto consents to entry upon the au~eet,proporty by employees of the Oepartmentot Planning to photograph and viewthe-site tor:putF'nose5 of processing and avaluStlnfl this apphoalion. Town ~entar A~socletes. L.L.c.;. _ -- =AppGcant'sSgnafura -' rink) City of Virginia-Beach [>evelopment ~~ lZ-, ~ Althori y Property burner's Si ndl (if dlBe~ent ihan'ap~t~cantj ~ /~ l~ [, , _~ + , ~.~l~tir Y ~ ~ ana s~. ~ f I? i (Print) r. yu 11 Of 11 FZevlsel r; 3:17: O ..~ a a~ ~"'~ c D a U F~-~ W TOWN CENTER ASSOCIATES 1 VEDA Agenda Item 18 Page 11 ~;xhil>ii , 13, List of ,~11'mhtlx Ilfthe ('it-' of ~~il-~itti;l Ilen1•I- 1)1~~~cl~tilmcntAi~lllbrih~ S <;II~lH+3K~,S~14~;1rhibnll;i.jhlufPA1]i]A1eNNhrs;,dtti DISCLOSURE STATEMENT TOWN CENTER ASSOCIATES /VEDA Agenda Item 18 Page 12 1 AN ORDINANCE EXTENDING THE DATE FOR 2 SATISFYING THE CONDITIONS IN THE MATTER OF 3 CLOSING, VACATING AND DISCONTINUING A PORTION 4 OF THAT CERTAIN STREET KNOWN AS "PORTION OF 5 MARKET STREET TO BE CLOSED AREA = 8 SQUARE 6 FEET" AS SHOWN ON THAT CERTAIN PLAT ENTITLED 7 "PLAT SHOWING PORTION OF MARKET STREET TO BE 8 CLOSED, VIRGINIA BEACH, VIRGINIA". (TOWN CENTER g -BLOCK 9) 10 11 WHEREAS, on March 24, 2009, the Council of the City of Virginia Beach 12 acted upon the application of Town Center Associates, L.L.C., for the closure of a 13 portion of Market Street and its subjacent air space at the southwestern corner of Block 14 9 at Town Center as shown on Exhibit "A"; 15 16 WHEREAS, on March 24, 2009 the Council adopted an Ordinance to 17 close the aforesaid street, subject to certain conditions being met on or before March 18 24, 2010; and 19 20 WHEREAS, on January 20, 2010, the applicant requested an extension of 21 time to satisfy the conditions attached to the aforesaid street closure. 22 23 NOW, THEREFORE, BE IT ORDAINED by the Council of the City of 24 Virginia Beach, Virginia: 25 26 That the date for meeting conditions of closure as stated in the Ordinance 27 adopted on March 24, 2009, upon application of Town Center Associates, L.L.C., is 28 extended to March 24, 2011. 29 30 Adopted by the Council of the City of Virginia Beach, Virginia, on this 31 day of , 2010. 32 33 GPIN:1477-54-1429 CA-11386 \\vbgov.com\DFS1 Wpplications\CityLawProd\cycom32\Wpdocs1D022\P007\00045046.DDC R-1 February 24, 2010 APPROVED AS TO LEGAL SUFFICIENCY: ~t (~ ~~~ ~~ . ~~121~1e~/ City Attorney APPROVED AS TO CONTENT: EXHIBIT ~1, -Page 1 of 2 ;. !r r f vii _¢ v z~ ~°~ IU W J 2 a ~o 1a- N N Q = Z C9 N S ~ ~ ~ ~~ ~~o ~$~ N ~~~ ~~~ ~~ 84.85' VIRGINIA BEACH BLVD ~~ ~ C-~-~ ~C7¢ / ~ptil~n 0~ L m BANK v~ ST Y ~ 1~ V~W~Q ~ o LCD-M.ME-RC-EJ ~ ST J o ~. J. ERRETHERa w ~Z SITE ~ ~ * ~ °z COLUMBUS ST ~ N 0 q~0 SUR~E~O SOUTHERN BLVD LOCATION MAP -SCALE: 1" = 2,000' .~' PUBVC /NGyPESS/~'GRESS Cr~llMERG~' STREET (B1. RI~'J ANO UAL/rr EASEMENT (/NST. ,~?Q040106002.3.049J (iNSr. ,*2oaao2~aolv2.~1.~7~ (FCI~~ERt r C~E-gzANO sn~ pNST. f2aa¢o~aBOOSS24o~ ~rrP) f- -N 89'35'57" E -~- -200.26' ~ ~ N 3,474,594.1037 ~ N 3,474,595 50461 .I E 12,175,006.2284 E 12.175,206.4835 .~• S7/B~/i4G~7VT A/R, SPACE (/NST. ,~2gp21?J>.TQ87765~ INST. ,~Za10~40210101p242,T7f (iNSr. ,~zal~a~anss2,~J (mil o TOWN CENTER BLOCK 9 N (INST. X200402060023049) AREAa 44.062 SF OR 1.012 AC 3 GPIN:1477-54-1429 o NOTE: MERIDIAN SHOWN HEREON IS BASED ON THE VIRGINIA STATE PLANE COORDINATE SYSTEM, SOUTH ZONE, o NORTH AMERICAN DATUM 1983/1993 HARN (NAD 83/93, o HARN) AND REFERENCED TO VIRGINIA BEACH GPS STATIONS "4737-1744" &"4793"_ _ Q`~~l \ ~' GYICUMBUS STREET (VAR fylpny R/!yJ (MB »O, PG ~ t2~ (/NST. 200212,70.JOB6483~ REV ~ AS PER CLIENT PREI~IAUS R/GJ'/T-Gl~ {f~i4Y0E0/CAAGW (/NST. ,ip~01A600?.T049J --SEE DETAIL •A' PREI40~/S S 44'35'53" W R/Q'1T-per KAY DEq/CAT/pN /NST. , j7002f2.T0.T086483~ 10.38' sl-S 89 35 53 W -tan a~ _ KCR 11-26- ~N(F) I I ~~ ~o ~ N ~ N I ~ ~O ~~ I ~~ W i., ~ ~ o o I IPIN~F) SHEET 1 OF PLAT SHOWING PORTION OF MARKET STREET TO BE CLOSED ENVIRONMENTAL SCIENCES •GEOSgENCES PLANNING • SURVEYING •ENgNEERING •LANDSCAPE ARCHITECTURE 5033 ROUSE DRIVE, VIRGINIA BEACH, VA 23~ 757-490-9264 (OFCI 757-49r~na:e !c. PROJ. NO.: EXHIBIT A -Page 2 of 2 CURVE C1 RADIUS 25 LENGTH TANGENT CHORD BEARING DELTA .00 10.78 5.48 10.70 S 12'42'36" E 24'42'36" C2 28.00 10.71 5.42 10.65 S 11"19'42" E 21'55'04" C3 25.00 3.42 1.71 3.42 N 29'01'48" W 7'50'21" LINE TABLE LINE BEARING LENGTH L1 N 00'24'10" W 10.45 ~ S 89'35'53" W 2.02 ~ S 89'35'53" W 0.97 L4 S 00'24'10" E 3.00 LS S 89'35'53" W 11.08 L6 N 89'35'53" E 12.72 i~ f ,~ O~ ~g 3~ ~~ h ~~~ w o SUBJACENT AIR SPACE TO BE CLOSED. I 3 ® ~ AREA = 7 SQUARE FEET 'NOO ® SUBJACENT AIR SPACE TO BE CONVEYED TO THE CITY OF VIRGINIA BEACH. 1B' z AREA = 36 SQUARE FEET Q\~ll ~ PUBUCINGRESS/EGRESS AND UTILITY EASEMENT TO BE CLOSED. AREA = 8 ~ SQUARE FEET N 00'24'10" W N ~ PRENAUS 10.6 5' ;~ Q~llt ~ (7 ~T ,~ZADYl2.~0,7g96483~ L5 .~' S7JB„G41.~7VT A/R .S~°AGL~ 2.28' (iNSr. #~v~~2.~~.~asnssJ (avsr. oz~aavz4l.>T~J (uvsr. ,~av4o¢a~anssz~oJ (rrPJ N 89 35'53' E .7' PU/BVC /NG7PESS/~QPESs AND U7~/TY EA.SirAIENT (~ivsT. ,~aaro~~aloio~¢2.~~J (INST. ~2aa¢o~asanss24oJ (m°J DETA/L A scatE ~• = to' ~~n OF {~ ~_ FR'~ \`-HZ(a- 09 ~ ~` SUR~E~~ REV AS PER CLIENT ~KCR I1-26 PLAT SHOWING PORTION OF MARKET STREET TO BE CLOSED SHEET 2 OF ENVIRONMENTAL SGENCES •q:OSgp~~ PLANNING • SURVEYING •ENgNEERING •LANDSCAPE ARCHITECTURE 5033 ROUSE DRIVE, VIRGINIA BEACH, VA 23~ 757-490-9264 (OFC) 757-490-0634 (FA www.msaontine com PROD. N0::061618 DRAWN KrR 1~ s,~+~Nw yl ~ ~~ ~~f CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: CITY OF VIRGINIA BEACH, Ordinance to amend Sections 111, 211, and 212 of the City Zoning Ordinance and to add a new Section 211.1, defining the term "Roadside Guide Sign" and establishing requirements for allowing such signs in the public right-of-way. MEETING DATE: March 9, 2010 ^ Background: On December 8, 2009, the City Council referred to the Planning Commission the attached ordinance for its consideration and recommendation. The ordinance referred to the Planning Commission by the resolution pertains to the establishment of requirements for allowing roadside guide signs to be located in the public right-of-way. Such roadside guide signs can only be used for cultural, literary, scientific, or artistic establishments that are not-for-profit and will require approval of City Council. ^ Considerations: The specific requirements for such signs are as follows: a) Signs will be allowed only by resolution of the City Council upon the application of the owner or operator of a use or establishment operated exclusively for cultural, literary, scientific or artistic purposes and on a not-for- profit basis; b) Applications for such signs will be made to the Director of Planning and the application fee will be $250; c) No signs can be larger than five square feet in area or higher than nine and one-half feet above ground level, and the sign must have a minimum clearance from ground level to the bottom of the sign face of seven feet; d) No use or establishment can have more than three roadside guide signs; however, the City Council may allow additional signs if it finds that three signs will not be sufficient to provide motorists with adequate guidance to the use or establishment; e) Only the name of the use or establishment, a logo or other graphic symbol indicating the type of use or establishment, a directional arrow and the City of Virginia Beach -Roadway Guide Signs Page 2 of 2 mileage to the use or establishment can be displayed. The lettering, graphic elements and background will be approved by the Director of Public Works or his designee in accordance with the standards for such signage adopted by the Department of Public Works; f) Signs will be erected only in the specific locations approved by the City Council as necessary to provide route confirmation and continuity of guidance to the use or establishment. The Department of Public Works may relocate a sign if necessary to accommodate public signage requirements; and g) Signs must be maintained in good condition at all times. Any sign not in good condition will be subject to removal and disposal by the Department of Public Works. There was no opposition to the proposed amendments. ^ Recommendations: The Planning Commission placed this item on the Consent Agenda, passing a motion by a recorded vote of 10-0, to recommend approval the proposed amendments. ^ Attachments: Minutes of Planning Commission Hearing Ordinance Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Department City Manager Q ' 1 /J t ~ ~ 1 1 REQUESTED BY COUNCILMEMBERS JOHN E. UHRIN AND GLENN B. DAVIS 2 3 4 AN ORDINANCE TO AMEND SECTIONS 111, 211 AND 5 212 OF THE CITY ZONING ORDINANCE AND TO ADD A 6 NEW SECTION 211.1, DEFINING THE TERM "ROADSIDE 7 GUIDE SIGN" AND ESTABLISHING REQUIREMENTS FOR 8 ALLOWING SUCH SIGNS IN THE PUBLIC RIGHT-OF-WAY 9 10 Sections Amended: City Zoning Ordinance Sections 111, 11 211 and 212 12 13 Section Added: City Zoning Ordinance Section 211.1 14 15 WHEREAS, the public necessity, convenience, general welfare and good zoning 16 practice so require; 17 18 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 19 BEACH, VIRGINIA: 20 21 That Sections 111, 211 and 212 of the City Zoning Ordinance of the City of 22 Virginia Beach, Virginia, are hereby amended and reordained, and a new Section 211.1 23 is hereby added, to read as follows: 24 25 Sec. 111. Definitions. 26 27 For the purpose of this ordinance, words used in the present tense shall include 28 the future; words used in the singular number include the plural and the plural the 29 singular; the use of any gender shall be applicable to all genders; the word "shall" is 30 mandatory; the word "may" is permissive; the word "land" includes only the area 31 described as being above mean sea level; and the word "person" includes an individual, 32 a partnership, association, or corporation. 33 34 In addition, the following terms shall be defined as herein indicated: 35 36 .... 37 38 Sign, roadside guide. Asian, located within a public right-of-way. indicating the 39 direction in which a use or establishment. other than a use or establishment owned or 40 operated by a governmental entity, is located. 41 42 .... 43 44 45 COMMENT 46 47 The amendment defines the term "roadside guide sign." The term is reserved for signs 48 relating to uses or establishments not owned or operated by governmental entities. The regulations 49 pertaining to roadside guide signs are set forth in the proposed new Section 211.1 of the City 50 Zoning Ordinance, set forth below. 51 52 Sec. 211. Signs permitted in all districts. 53 54 The following types of signs are exempted from all of the provisions of this 55 ordinance, except for illumination, construction, and safety regulations and the following 56 standards: 57 58 .... 59 60 (k) Roadside guide signs. Roadside guide signs subiect to the provisions of 61 section 211.1. 62 63 COMMENT 64 65 The amendment allows roadside guide signs in all zoning districts. The regulations 66 pertaining to such signs are set forth in the proposed new Section 211.1 of the City Zoning 67 Ordinance, set forth below. 68 69 70 Sec. 211.1. Roadside guide signs. 71 72 Roadside guide signs shall be permitted subiect to the following provisions' 73 74 (a) Signs shall be allowed only by resolution of the Citv Council upon the 75 application of the owner or operator of a use or establishment operated exclusively for 76 cultural, literary. scientific or artistic purposes and on snot-for-profit basis 77 78 (b) Applications for such signs which shall include an application fee in the 79 amount of Two Hundred Fifty Dollars ($250.00) shall be made to the Director of 80 Planning on forms prescribed by him; 81 82 (c) No signs shall be larger than five (5) square feet in area or higher than 83 eight (8) feet above ground level: 84 85 (d) No use or establishment shall be the subiect of more than three (3) 86 roadside guide signs; provided, however, that the Citv Council may allow additional 87 signs if it finds that three (3) signs are insufficient to provide motorists with adeauate 88 guidance to the use or establishment: 89 90 (e) Onlv the name of the use or establishment a logo or other graphic symbol 91 indicating the type of use or establishment, a directional arrow and the mileage to the 2 92 use or establishment may be displayed. The lettering, graphic elements and 93 background shall be approved by the Director of Public Works or his designee in 94 accordance with the standards for such signaqe adopted by the Department of Public 95 Works; 96 97 ff) Signs shall be erected only in the specific locations approved by the City 98 Council as necessary to provide route confirmation and continuity of Guidance to the 99 use or establishment. The Department of Public Works may relocate a sign if 100 necessary to accommodate public signaqe requirements; and 101 102 ja) Signs shall be maintained in good condition at all times. Any sign not in 103 good condition shall be subject to removal and disposal by the Department of Public 104 Works. 105 106 COMMENT 107 108 The proposed section sets forth the requirements for roadside guide signage. Among those 109 requirements is that such signage is subject to approval by the City Council. The $250.00 110 application fee is the identical amount required for encroachments pursuant to City Code Section 111 33.1-113. 112 113 Sec. 212. Prohibited signs. 114 115 The following signs shall be prohibited: 116 117 .... 118 119 (c) Signs in any public right-of-way, except as provided in section 211(a) or 120 section 211(k). 121 122 .... 123 COMMENT 124 125 The amendment conforms this section to the provisions of the proposed new section 211.1. 126 Adopted by the City Council of the City of Virginia Beach, Virginia, on this day of , 2009. APPR V D ~4 TO LE A S F ICIEN City Attorney's Office CA-11326 R-2 November 25, 2009 3 Item #4 City of Virginia Beach An Ordinance to amend Sections 111, 211 and 212 of the City Zoning Ordinance and add new Section 21 1.1 defining the term "Roadside Guide Sign" and establishing requirements for allowing such signs in the public right-of--way February 10, 2010 CONSENT Jay Bernas: The next matter is agenda item 4. This is an application of the City of Virginia Beach. It's an ordinance to amend sections 111, 211, and 212 of the City Zoning Ordinance and to add new Section 211.1 defining the term "Roadside Guide Sign" and establishing requirements for allowing such signs in the public right-of--way. Is there any opposition to this matter being placed on the consent agenda? Hearing none, the Chairman has asked Deputy City Attorney Bill Macali to please review this item. Bill Macali: Mr. Chairman and members of the Board. This is an ordinance that would allow a very limited number of signs, which we've called "roadside guide signs" because all they do is show the name of an establishment, perhaps a logo or other graphic representation and a directional arrow as well as mileage, which helps motorists arrive at the location they are seeking. These signs are allowed only with the approval of the City Council. There is no such thing as to be able to put one up by-right. And only upon the application of the owner or operator of a user establishment that is operating exclusively for cultural, literary, scientific or artistic purposes, and on anot-for-profit basis. So, you can see that these signs are for a very, very small group of organizations. We don't expect there will be a great number of them. They must have the approval of the City Council. There are other things in here, to ensure they will be small and unobtrusive. They cannot be any greater than 5 square feet in area, 8 feet high including the pole on which they have been placed. The lettering, graphic elements and background have to be approved by the Department of Public Works, and the signs may be put only in the specific locations approved by the City Council. So, we feel that this is not really a very far reaching amendment. It just accommodates certain non-profit scientific, literary, cultural or artistic organizations that are located in places that are pretty much off the main road, and are difficult to find for people who want to find them. So, it was, by the way, the request of two of the members of City Council identified on the ordinance, and referred to the Planning Commission for action by the entire City Council. Jay Bernas: Mr. Chairman that was the last item on the consent agenda. I would like to make a motion to approve consent agenda item 4. Joseph Strange: Do I have a second? Kathy Katsias: Second. Joseph Strange: A motion has been made by Jay Bernas and seconded by Kathy Katsias to put item 4 on the consent agenda. Item #4 City of Virginia Beach Page 2 AYE 10 ANDERSON NAY 0 ABS 0 ABSENT 1 ABSENT BERNAS AYE FELTON AYE HENLEY AYE HORSLEY AYE KATSIAS AYE LIVAS AYE REDMOND AYE RIPLEY AYE RUSSO AYE STRANGE AYE Ed Weeden: By a vote of 10-0, the Board has approved item 4 for consent. Joseph Strange: Thank you. ~~'"~" t",tiy~', ~~~ 4. li~ ~J CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: CITY OF VIRGINIA BEACH, Ordinance to amend the City Zoning Ordinance by reducing setback requirements for in-ground swimming pools located on lots adjacent to the beaches of the Atlantic Ocean in the R-5R Residential District. MEETING DATE: March 9, 2010 ^ Background: The attached proposal to amend the Zoning Ordinance is proposed as a means of addressing requests to the Board of Zoning Appeals for variances to the current setback requirement of 30 feet from the ocean for lots adjacent to the Atlantic Ocean within the R-5R Residential District. ^ Considerations: The proposed amendment establishes a five foot minimum setback from the property line adjacent to the Atlantic Ocean beach for in-ground swimming pools in the R-5R Residential Resort District. The original intent of the increased setback from the ocean appears to have been to protect views. Since in-ground swimming pools do not negatively impact views, the North Beach Civic League supports this amendment. Public Works has reviewed the change and concludes that the reduced setback for pools will not conflict with City seawall projects or negatively impact beach protection. There was no public opposition to the proposed amendments. ^ Recommendations: The Planning Commission, by a recorded vote of 7-3, voted to recommend approval the proposed amendments. ^ Attachments: Minutes of Planning Commission Hearing Ordinance Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Department City Manager: ~ ~ , _ ~1 _ 'T.t~~.~ ~'f Item #6 City of Virginia Beach An Ordinance to amend the City Zoning Ordinance by reducing setback requirements for in-ground swimming pools located on the lots adjacent to the beaches of the Atlantic Ocean in the R-SR Residential District February 10, 2010 REGULAR Joseph Strange: Now we will address the remaining matters on our agenda. I'm going to ask our Secretary Al Henley to handle this portion of the agenda. Al Henley: Thank you Joe. The first item is item 6, the City of Virginia Beach. An ordinance to amend the City Zoning Ordinance to reduce the setback requirements for in-ground swimming pools located on lots adjacent to beaches of the Atlantic Ocean in the R-SR Residential District. Mr. Macali. Mr. Macali: Ms. Lasley will address this. Al Henley: I'm sorry. Okay. Karen Lasley: Would you like me to summarize the amendment? Al Henley: Yes. Karen Lasley: This is an amendment to the Zoning Ordinance pertaining to setbacks from the Oceanfront only for in-ground swimming pools in the R-SR Residential District at the north end. At the north end, the R-SR zoning is unique in that there is a special setback, a 30-foot setback required from the rear property line that abuts the Atlantic Ocean, and that applies to all structures. And what this regulation has done is prevent people from putting in-ground swimming pools in their backyards because they don't have the room with that setback. The 30- foot setback was designed to prevent structures from going into that area closest to the ocean that would obstruct people's views of the ocean. In-ground swimming pools, of course do not cause that problem. So there have been a number of property owners asking for this amendment. Three years ago, we had a package of R-SR amendments, and this swimming pool setback was part of that package, but a lot of things in that package were controversial, and this got deferred along with that. So, today we are just bringing you back this amendment that pertains only to the in- ground swimming pools. Are there any questions that I can answer for you? Joseph Strange: Are there any questions for Ms. Lasley? Okay. Thank you Karen. Karen Lasley: Thank you. Eddie Bourdon: Mr. Chairman, my name is Eddie Bourdon, a Virginia Beach attorney, and I represent some of the folks at the north end who have been trying to get this done for the last three years to put in in-ground swimming pools in the north end. There is no objection to it. As Ms. Lasley indicated the special rules at the north end was put in, this 30 foot no structure rule was put in, in my view because of the significant number of variances that have been granted Item #6 City of Virginia Beach Page 2 over the years. This goes back probably a couple of decades for structures and getting closer and closer to the Atlantic Ocean so they could preserve the views. No one was thinking about in- ground swimming pools, and the fact that it doesn't have any effect on views. This setback, this 5-foot rear yard setback for in-ground swimming pool is the same setback that applies to an in- ground swimming pool in every other residential district, including the R-SR Residential District if you are at Chesapeake Beach, or anywhere else, Croatan, which is R-10 and Sandbridge, which is R-20 all the way around the City, and the 5-foot setback for an in-ground swimming pools if you are on the bay front or the beach front. It is only at the north end that it is different. It wasn't ever intended to be that way, in my opinion to begin with. This just straightens that out, and treats the north end, the ocean front properties the same as any other ocean front, bay front or waterfront property anywhere in the city. Now, when I say waterfront, we do now have the Chesapeake Bay Preservation Area Ordinance which deals with issues on waterfront inland properties and does create some issues with regard to swimming pools. I don't want to misconstrue that but the setback, which is all were talking about here, now would be the same for in-ground swimming pools in every ocean front and bay front community. That is all this is about. Joseph Strange: Thank you Eddie. Are there any questions for Eddie? Eddie Bourdon: Thank you. Joseph Strange: Since there are no questions, we will now open this item up for discussion among the Commissioners. Al Henley: There are no other speakers. Joseph Strange: Chris? Chris Felton: I understand that many different agencies and different individuals have approved this, and say it won't damage the dune line or the stonmwater drainage that is going on. But, just in my point of view and ethically, I cannot vote for this change. I understand that it is there to preserve the views but I'm looking more at preserving the ecological stability that is down there as well. And, then at the same time, I would have probably, if I was back in the day approving the Sandbridge and the Chesapeake Bay, I probably would have done the same thing because I just don't feel right encroaching on those areas. And many of the discussions that we had in the informal brought up a lot of good points. If the City had to go and do some repairs or stuff to the bulkheads, if there was any kind of damage to these underground facilities, would the City have to deal with the cost of fixing those or just the battle and the nuisance of dealing with those damages that happen? Eddie Bourdon: May I approach Mr. Chairman? Joseph Strange: Go ahead Eddie. Eddie Bourdon: I'm just going to suggest to the Commissioner that none of this has any impact on the Coastal Primary Sand Dune Protection Act, which would preclude any alteration of a sand Item #6 City of Virginia Beach Page 3 dune including the rear side of a sand dune for any swimming pool. So there can't be any impact on the sand dunes as a result of this change whatsoever, so just to make that clear. Joseph Strange: Okay. Thank you. Is there any other discussion? Jay Bernas: I would like to make a motion to approve. Joseph Strange: Okay. We have a motion by Jay to approve. Donald Horsley: Second. Joseph Strange: We have a second by Don Horsley. AYE 7 NAY 3 ABS 0 ABSENT 1 ANDERSON ABSENT BERNAS AYE FELTON NAY HENLEY NAY HORLSEY AYE KATSIAS AYE LIVAS AYE REDMOND AYE RIPLEY AYE RUSSO NAY STRANGE AYE Ed Weeden: By a vote of 7-3, the Board has approved the application of the City of Virginia Beach for requirement of in-ground swimming pools has been approved. 1 AN ORDINANCE TO AMEND THE CITY ZONING 2 ORDINANCE BY REDUCING SETBACK 3 REQUIRMENTS FOR IN-GROUND SWIMMING 4 POOLS LOCATED ON LOTS ADJACENT TO THE 5 BEACHES OF THE ATLANTIC OCEAN IN THE R-5R 6 RESIDENTIAL RESORT DISTRICT 7 8 Sections Amended: City Zoning Ordinance Sections 201 and 502 9 10 11 WHEREAS, the public necessity, convenience, general welfare and good zoning 12 practice so require; 13 14 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 15 BEACH, VIRGINIA: 16 17 That Section 201 and 502 of the City Zoning Ordinance, pertaining to in-ground 18 swimming pools located on lots adjacent to the Atlantic Ocean in the R-5R Residential 19 Resort District, is hereby amended and reordained to read as follows: 20 21 ARTICLE 2. GENERAL REQUIREMENTS AND PROCEDURES APPLICABLE TO 22 ALL DISTRICTS. 23 24 .... 25 26 Sec. 201. Yards. 27 28 (a) General. All required yards shall be unobstructed by any structure or other 29 improvement which exceeds sixteen (16) inches in height as measured from ground 30 elevation; provided, however, the following improvements may be located in a yard: 31 32 (1) In-ground swimming pools, Jacuzzis, hot tubs or similar structures 33 may extend to within five (5) feet of any side or rear property line, 34 provided however, that no in-ground swimming pool, Jacuzzis, hot 35 tubs or similar structures shall extend into any required yard adjacent 36 to a street, except that swimming pools, Jacuzzis, hot tubs or similar 37 structures may be located no closer than twenty (20) feet to any 38 property line to the rear of any principal structure on a through lot. 39 Notwithstanding any contrary provision of this ordinance, in-around 40 swimming pools located on property in the R-5R Residential Resort 41 District adjacent to the public beach of the Atlantic Ocean shall be set 42 back no less than five (5) feet from the property line adjacent to the 43 beach. For purpose of this section "beach" shall include anv 44 bulkheaded area contiguous to and anv unimproved public right-of- 45 way within, the sandy beach. 46 47 COMMENT 48 49 The proposed amendment establishes alive-foot minimum setback from the property line 50 adjacent to the beach for in-ground swimming pools on oceanfront property in the R-SR 51 Residential Resort District. 52 53 .... 54 55 56 ARTICLE 5. RESIDENTIAL DISTRICTS 57 58 .... 59 60 Sec. 502. Dimensional Requirements [Residential Zoning Districts]. 61 62 The following chart lists the requirements within the R-40 through R-5S 63 Residential Districts for minimum lot area, width, yard spacing and maximum lot 64 coverage for single-family dwellings. 65 66 (a) For single-family dwellings: 67 68 Residential Districts 69 70 R-40 R-30 R-20 R-15 R-10 R-7.5 R-5D R-5R R-5S 71 72 .... 73 74 75 (11) As an exception, 76 the minimum setback #ef 77 in any yard adjacent to the 78 Atlantic Ocean for any 79 structures, except in-Around 80 swimming pools, shall be 81 30 feet in the R-5R District N/A N/A N/A N/A N/A N/A N/A 30 N/A 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 COMMENT The proposed amendment conforms this section to the provisions of Section 201 (a) (1), which establishes a required setback of 5' from the property line adjacent to the Atlantic Ocean beach for in-ground swimming pools on oceanfront property in the R-SR Residential Resort District. The following chart lists the requirements within the R-5R Residential District for minimum lot area, width, yard spacing and maximum lot coverage for duplex and semidetached dwellings. (b1) For duplex and semidetached dwellings in the R-5R Residential District: Duplexes Semidetached (8) Minimum rear yard (9) As an exception, the minimum setbacks in any yard adjacent to the Atlantic Ocean for any structures1 except in-Around swimming pools, shall be 30 feet in the R-5R District COMMENT 20 20 The proposed amendment conforms this section to the provisions of Section 201 (a) (1), which establishes a required setback of 5' from the property line adjacent to the Atlantic Ocean beach for in-ground swimming pools on oceanfront property in the R-5R Residential Resort District. 123 of Adopted by the Council of the City of Virginia Beach, Virginia, on the day 2010. APPROVED AS TO CONTENT: PI nning epartment CA11057 APPROVED AS TO LEGAL SUFFI ENCY: t J V ~ w(~ City Attorney's Office R-3 January 21, 2010 s `r'u ~~~ ((~ ~ ~_~ lV ~..... S:, y ~~rJ CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to amend Section 111 and add new Section 217 to the City Zoning Ordinance, defining monument signs and electronic display signs and establishing requirements for such signs MEETING DATE: March 9, 2010 ^ Background: The Zoning Ordinance has no specific regulations pertaining to the use of electronic display elements as part of a sign. As a result, electronic display elements, as part of a sign or as an entire sign face, have made a steady advance across the city when new signs have been installed. As noted above, with the increased sophistication of digital sign technology, the slowly decreasing costs, and the plethora of advertising alternatives electronic display signs offer, such signs are becoming, if not are, the standard for signage. The near future could see the replacement of standard plastic-based sign faces that are internally illuminated with electronic display faces consisting of images that can be easily manipulated. ^ Considerations: On August 25, 2009, the City Council referred to the Planning Commission suggested amendments to the Zoning Ordinance intended to provide regulations for Electronic Display Signs. The Planning Commission, after extensive review and public comment, developed an Alternate Version of the amendments, and at their hearing on January 13, 2010, recommended the Alternate Version of the amendments to the City Council. On February 9, 2010, the City Council deferred action on the amendments and requested a briefing from staff summarizing the issue and the amendments. Staff provided that briefing on February 16, 2010. The City Council subsequently appointed a subcommittee consisting of two members to work with staff on developing a version of the amendments that would be reflective of various issues and concerns expressed during a discussion that occurred after staff's briefing. The intent was to have City Council act on this revised version of the ordinance at the March 9 meeting; thus, the item was advertised for hearing on March 9 as required by Virginia State Code. ^ Recommendations: Since then, two meetings have been held by the subcommittee, with members of staff and the Planning Commission's subcommittee on this issue in attendance. The meetings have resulted in a new alternative version of the amendments. That version will be discussed during City Council's informal session, with the City of Virginia Beach -Electronic Display Signs Amendment Page2of2 intent of voting on the amendments during City Council's March 23 formal session. Recommended Action: Deferral to March 23, 2010 meeting Submitting Department/Agency: Planning Department City Manager. ~, ~~~ L ~ M. APPOINTMENTS HEALTH SERVICES ADVISORY BOARD HUMAN RIGHTS COMMISSION SENIOR SERVICES OF SOUTHEASTERN VIRGINIA SOCIAL SERVICES BOARD N. UNFINISHED BUSINESS O. NEW BUSINESS P. ADJOURNMENT *~~~'c~c~'c~'c~c~c~'c~'c~~'c~~c~'c~c~c*~'c~c~'c*~**~c9c~c*~~c~'c PUBLIC COMMENT Non-Agenda Items Each Speaker will be allowed 3 minutes and each subject is limited to 3 Speakers FY 2010-2011 Budget Schedule - DATE . ~_. ~ __ = TIM~~ March 23 6:00 PM March 30 ._. ..~ 4:00-6:00 PM . Apri18 ___. . 4:00-6:OOPM Apri113 1 hr before Informal Apri120 .. 4:00-6:00 PM Apri122 6:00 PM Apri127 1 hr before Informal April 27 6:00 PM May 4 _._ ~ 4:00-6:00 PM May ii ~~_ . 6:OOPM EVENT __ - . ..- . _ . ~. ~ ,,,. ._ _- _, OCATIQN City Manager Presents Budget City Council Chamber Workshop City Council Conference Room Workshop :City Council Conference _. Room Workshop ,,. _ _ City Council Conference e __ Room Workshop City Council Conference Room Public Hearing ~ ~ ~ ~ ~ Tallwood High School ~~ ~~~ Public Hea ring __ ~_ _ _ __..~,.~ _._ City Council Conference .. ~ Room Public Hearing _. .. City Council Chamber , ~, _ e_...,, ... Workshop City Council Conference Room ADOPTION City Council Chamber CITY CDUI~CIL MID--YEAR RETREAT ***~**** 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 3/9/lost www.vbaov.cam C/TY OF VIRGINIA BEACH SUMMARY OF COUNCIL ACTIONS DATE: 2/23/2010 B PAGE: 1 E D S L E D H E W AGENDA ITEM # SUBJECT MOTION VOTE L I D A S T I E D E N J O S S U H I L W T V E Z Y L N O R S O T I P E E E E M I O O O S H L R Y S S N N D VA CITY COUNCIL'S BRIEFING: REAL ESTATE ASSESSMENTS Jerald Banagan, Real Estate Assessor IUA CITY MANAGER'S BRIEFINGS SHOPPING CENTER REVITALIZATION Warren Harris, Director - Department of Economic Develo ment B INTERIM FINANCIAL STATEMENT Patti Phillips, Director - Finance De artment IIUIVN/ CERTIFICATE OF CLOSED SESSION CERTIFIED 11-0 Y Y Y Y Y Y Y Y Y Y Y VIE F-1 MINUTES -February 9, 2010 APPROVED 10-0 A Y Y Y Y Y Y Y Y Y Y B S T A I N E D G/H_1 VA LAW ACCREDITATION (VALEAC) RESCHEDULED B Y C O N S E N S U S UJ_1 Ordinance to TRANSFER $244,800 re REMOVED 11-0 Y Y Y Y Y Y Y Y Y Y Y local match for Virginia Beach Transit FROM Extension AGENDA, BY CONSENT 2 Ordinances to AMEND the City Code: DEFERRED TO 11-0 Y Y Y Y Y Y Y Y Y Y Y 3/23/2010 a. §23-50.1 re penalty for failure to comply -trees b. §23-50 re penalty for failure to comply - weeds/ rass 3 Resolution to SUPPORT offshore oiV ADOPTED, AS 8-3 Y Y Y N Y N N Y Y Y Y natural gas exploration re alternative REVISED, WITH energy with royalty payments/REQUEST TERM Congress/ V Gen Ass provide legislation to SHEET/MAP dedicate ro allies to fund trans rtation 4 Ordinance to AMEND Ordinance to revise ADOPTED, BY 10-1 Y Y Y Y Y N Y Y Y Y Y Lease at Sportsplex to Va Beach Field CONSENT House, L.L.C./AUTHORIZE the Lease CITY OF VIRG/NlA BEACH SUMMARY OF COUNC/L ACTIONS DATE: 2/23/2010 B PAGE: 2 E D S AGENDA L E D H E W ITEM # SUBJECT MOTION VOTE L I D A S T I E D E N J O S S U H 1 L W T V E Z Y L N O R S O T I P E E E E M I O O O S H L R Y S S N N D Ordinance to AUTHORIZE acquisition of ADOPTED, BY t 1-0 Y Y Y Y Y Y Y Y Y Y Y 1907 Baltic Ave from CONSENT Stevens/White/Stevens/White re poteetial 5 develo ment at the Oceanfront 6 Resolution to AUTHORIZE ADOPTED, BY 11-0 Y Y Y Y Y Y Y Y Y Y Y Intergovernmental Agreement between CONSENT Va Agriculture and Consumer Services/City re ARP easements 7 Ordinance to AUTHORIZE encroachment DEFERRED 11-0 Y Y Y Y Y Y Y Y Y Y Y into portion of City-owned property for INDEFINITELY, Forest E./Judy P. Williams to construct BY CONSENT permeable paver parking spaces/paver walk at 308 49'" Street 8.a Ordinances to APPROPRIATE: ADOPTED,BY 11-0 Y Y Y Y Y Y Y Y Y Y Y CONSENT $7,200,000 from SPSA to Public Works re dis sal costs b. $25,579 from Oyster Heritage Trust Fund ADOPTED, BY 11-0 Y Y Y Y Y Y Y Y Y Y Y to Planning re oyster habitat in Lynnhaven CONSENT River watershed/continuing Oyster Shell Rec clin 9 Ordinance to TRANSFER $250,000 for ADOPTED, BY 11-0 Y Y Y Y Y Y Y Y Y Y Y public safety air cards CONSENT ADD-ON Resolution REQUESTING General APPROVED 11-0 Y Y Y Y Y Y Y Y Y Y Y Assembly/Governor continue funding for BRAC com liance K-1 GEORGE R./JANE C. WEBB for APPROVED/ 11-0 Y Y Y Y Y Y Y Y Y Y Y Nonconformin¢ Structures at 110 74'" St to CONDITIONED, renovate dwelling/garage DISTRICT 5 - BY CONSENT LYNNHAVEN 2 REBKEE CO/JONES REAL ESTATE APPROVED, AS i t-0 Y Y Y Y Y Y Y Y Y Y Y INVESTMENT CO LLC for Modification PROFFERED, of Proffers (approved September 8, 2009) BY CONSENT for change in building site layout at 2236- 2240 General Booth Boulevard DISTRICT 7 -PRINCESS ANNE 3 WEST NECK PROPERTIES, DEFERRED TO 11-0 Y Y Y Y Y Y Y Y Y Y Y INC./ROBERT ZIRPOLI CUP re non- 3/9/2010, BY commercial community pier (private use) CONSENT at 1809 Estates Court/2933 and 2936 Estates Drive. DISTRICT 5 - LYNNHAVEN CITY OF VIRGINIA BEACH SUMMARY OF COUNC/L ACTIONS DATE: 2/23/2010 B PAGE: 3 E D S L E D H E W AGENDA L D S I E J S U 1 ITEM # SUBJECT MOTION VOTE I A T E D N O S H L W T V E Z Y L N O R S O T [ P E E E E M I O O O S H L R Y S S N N D 4 WINNER'S REAL ESTATE APPROVED/ 11-0 Y Y Y Y Y Y Y Y Y Y Y HOLDINGS, LLC, for CUP re motor CONDITIONED, vehicle sales/rentaUservice/repair at 5070 BY CONSENT Virginia Beach Boulevard. DISTRICT 4 - BAYSIDE 5 STRAWBRIDGE ANIMAL APPROVED/ 11-0 Y Y Y Y Y Y Y Y Y Y Y CARE/FAT BOYZ, INC. CUP re CONDITIONED, Veterinary establishment for animal BY CONSENT rehabilitative therapy at 2584 Aviator Drive. DISTRICT 6 -BEACH 6 TAMI WALKER MOOK CUP re small DEFERRED TO I1-0 Y Y Y Y Y Y Y Y Y Y Y engine repair at 501 Virginia Beach 3/232010, BY Boulevard. DISTRICT 6 -BEACH CONSENT 7 AUTOBELL CAR WASH, APPROVED/ 11-0 Y Y Y Y Y Y Y Y Y Y Y INC./MESSER 10601NDEPENDEIYCE CONDITIONED, BOULEVARD, LLC CUP re automated BY CONSENT car wash at 1060/1064 Independence Boulevard. DISTRICT 4 - BAYSIDE 8 KARINPHILLIP, INC./PARR DEFERERD 11-0 Y Y Y Y Y Y Y Y Y Y Y PROPERTIES, LLC at 114 South INDEFINITELY, Witchduck Road (SGA4-Pembroke) re BY CONSENT tattoo parlor: DISTRICT 2 - KEMPSVILLE a. COZ from I-1 Conditional B-2 b. CUP 9 MORRIS H. FINE and ROBERT F. APPROVED, AS 11-0 Y Y Y Y Y Y Y Y Y Y Y HAGANS COZ from R-15/ AG-1/AG-2 PROFFERED, Conditional R-15 at 3807/3809 Indian BY CONSENT River Road. DISTRICT 1 - CENTERVILLE 10 AUTOZONE DEVELOPMENT APPROVED, AS 11-0 Y Y Y Y Y Y Y Y Y Y Y CORD/LAND BUILDING IV, L.C. PROFFERD, BY Modification of Proffers (approved March CONSENT 28, 2000/May 24, 2005) at 5221 Indian River Road. DISTRICT 1 -CENTERVILLE C/TY OF VIRG/N/A BEACH SUMMARY OF COUNCIL ACTIONS DATE: 2/23/2010 B PAGE: 4 E D S AGENDA L E D H E W ITEM # SUBJECT MOTION VOTE L I D A S T I E D E N J O S S U H I L W T V E Z Y L N O R S O T I P E E E E M 1 O O O S H L R Y S S N N D L APPOINTMENTS RESCHEDULED B Y C O N S E N S U S SENIOR SERVICES OF SOUTHEASTERN VIRGINIA HEALTH SERVICES ADVISORY Reappointed: 10-0 Y Y Y Y Y Y Y A Y Y Y BOARD 3 year term 04/0 i/2010 - 03/31/2013 Kathryn B. Hill, Chris M. Savvides, Helen P. Shropshire, Susan D. Vierra HUMAN RIGHTS COMMISSION Reappointed: 10-0 Y Y Y Y Y Y Y A Y Y Y 3 year term 04/01/2010 - 03/31/2013 Gregory D. Goldfarb, William Rice Appointed: 3 year term 04/01/2010 - 03/31/2013 Vivian E. Blaize THE PLANNING COUNCIL Reappointed: 1 IO-0 Y Y Y Y Y Y Y A Y Y Y year term 04/01/2010 - _ 03/31/2011 Glenn R. Davis SOCIAL SERVICES BOARD Appointed: 4 year 10-0 Y Y Y Y Y Y Y A Y Y Y term 02/23/2010 - 06/30/2014 Rowena G. Wilson, Ph.D. VIItGIN1A BEACH COMMUNITY Appointed: 10-0 Y Y Y Y Y Y Y A Y Y Y DEVELOPMENT CORPORATION Unexpired term (VBCDC) thru 12/31/2013 David Doucette M/N/O ADJOURNMENT: 6:36 PM