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APRIL 17, 1989 @f NTir-"-i@iEl E3@&t@" 'WORLD'S LARGEST RESORT CITY" CITY COLNCIL MA- M@E@ E, OBE@@-, Al 11- -YOR ROM@' J.- A -ROM .IX.-R, @l P@@- A.- JOHN D M@. K--. -1 K@ P-R, @l JOHN L 'E-. ,- -1- @ -OMS, JR, A. 281 CITY HALL BUILDING MUNICIPAL CENTER AU.UY V. --S, IR@, @ill --l CITY COUNCIL AGENDA VIRGINIA BEACH, VIRGINIA 23456-1/202 1 @@ B'..', Ii,, Al- (SN) 427-4303 R@H -11 April 17, 1989 ITEM 1. CITY COUNCIL WORKSHOP - Conference Room 11:00 AM A. FY 1989-1990 OPERATING BUDGET 1. CITY BUDGET ITEM 11. COUNCIL CONFERENCE SESSION - Conference Room 1:00 pM A. CITY COUNCIL CONCERNS ITEM 111. INFORMAL SESSION - conference Room 1:30 PM A. CALL TO ORDER - Mayor Meyera E. Oberndorf B. ROLL CALL OF COUNCIL C. RECESS TO EXECUTIVE SESSION ITEM IV. FORMAL SESSION - Council Chamber 2:00 PM A. INVOCATION: Reverend Richard J. Keever Bayside Presbyterian Church B. PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA C. ELECTRONIC ROLL CALL OF CITY COUNCIL D. MINUTES 1. INFORMAL & FORMAL SESSIONS - April 10, 7989 E. CITY MANAGERIS PRESENTATION 1. NONTIDAL WETLANDS REGULATIONS Federal and State Perspectives F. RESOLUTIONS/ORDINANCE 1. INDUSTRIAL DEVELOPMENT REVENUE BOND: Dynaric, Inc. $7,000,000 2. Resolution authorizing the issuance, sale and award of a $13,000,000 Water and Sewer Revenue Bond, Series of 1989, of the City of Virginia Beach, and providing for the form, details and payment thereof. 3. Ordinance to AMEND and REORDAIN the Code of the City of Virginia Beach by ADDING Sections 2-195, 2-196, 2-197, 2-198, and 2-199 re the Capital Improvement Program. G. CONSENT AGENDA Al I matters I isted under the Consent Agenda are considered in the ordinary course of business by City Council and will be enacted by one motion In the form listed. If an item is removed from the Consent Agenda, it wi I I be discussed and voted upon separately. 1. Resolutions requesting the Virginia Department of Transportation to accept: a. Corrections to the revised road Inventory (additional .16 lane miles to urban streets Inventory and additional 4.36 lane miles to arterial streets inventory, both beginning July 1, 1989); AND, b. Additional streets (75.81 lane mi les of urban streets and 5.82 lane miles of arterial streets, both beginning July 1, 1989); AND, c. To begin urban maintenance payments to the City of Virginia Beach based upon the established rate ot the above revisions. 2. Resolution protecting the fisheries resources and overall environmental quality of Lake Joyce. 3. Ordinance to AMEND and REORDAIN Article I I I of Cbapter 30 of the Code of the City of Virginia Beach re Erosion and Sediment Control. 4. Ordinance authorizing acquisition of property In fee simple for right-of-way for left turn lane/bypass lane and Incidental drainage on Seaboard Road at Foxfire Subdivision, either by agreement or condemnation. 5. Ordinance authorizing the City Manager to apply for $25,000 frorn the Yirginia Housing Partnership Fund Finergency Home Repair Grant Program for low and moderate income citizens. 6. COST PARTICIPATION AGREE)4ENTS: a. WALLY'S DAY CARE $10,920.00 Sewer (CIP 6-316) b. ALEXANDRIA SECTION 11 $47,000.00 Water (CIP 5-306) 7. Ordinance awarding Chesapeake and Potomac Telephone Company of Virginia a franchlse tor the use of public property for the installation and operation of public telephone service. 8. Ordinance upon FIRST READING to ACCEPT and APPROPRIATE a $4,000 State Literary Grant by the Cornmonwealth Into the FY 1988-89 Operating Budget of the Library Department. 9. Ordinance upon FIRST READING to authorize and agree to APPROPRIATE $232,000 for the purchase of a fire statlon site in Oceana West Industrial Park from the Virginia Beach Development Authority. 10. Ordinance to TRANSFER $84,000 to Project 2-089 Southeastern Expressway (Pine Ridge, Section 5, Parcel A), for the purchase of property along the proposed Expressway alignment (Deferred April 3, 1989). 11. Ordinance authorizing and approving, upon cond-itions, encroachments by a building canopy and awning on the premises of Forbes Candies, Inc., Atlantic Avenue and 22nd Street (VIRGINIA BEACH BOROUGH). 12. LOW BIDS: A & W CONTRACTORS, INC. $176,000.00 (North Seaboard Road Water and Sewer Project) STEVE OWENS and AFFORDABLE CONTRACTING/ $192,000.00 BRUCE EXUM (For the removal of underwater obstruction from the Atlantic Ocean at 7th Street) 13. RAFFLF/BINGO PEFVAITS FAIRFIELD ELEMENTARY PTA Raffle KEMPSVILLE ELEMENTARY PTA Raffle LARKSPUR RECREATION ASSOCIATION Raffle MULTIPLE SCLEROSIS SOCIETY Raffle GREEN RUN LITTLE LEAGUE Bingo/Raffle H. UNFINISHED BUSINESS NEW BUSINESS 1. INTERIM FINANCIAL STATEMENTS July 1, 1988 - February 28, 1989 r,iles G. Dodd, Assistant City Manager, Finance 2. NOISE ABATEMENT C. Oral Lambert, Director, Public Works j. ADJOURNMENT FY 1989-1990 OPERATING BUDGET SCHEDULE APRIL 18, 1989 7:00 PM PUBLIC HEARING - FY 1989-1990 OPERATING BUDGET Princess Anne High School APRIL 24, 1989 3:00 PM - 5:00 PM CITY COUNCIL WORKSHOP FY 1989-1990 OPERATING BUDGET APRIL 25, 1989 7:00 PM PUBLIC HEARING FY 1989-1990 OPERATING BUDGET (Pavilion - Meeting Ro-S) MAY 1, 1989 11:00 AM - 1:00 PM RECONC I L I AT I ON WORKSHOP FY 1989-1990 OPERATING BUDGET MAY 8, 1989 2:00 PM PUBLIC HEARING AND FIRST READING APPROPRIATION ORDINANCE FY 1989-1990 OPERATING BUDGET (Formal City Counci I Session) MAY 15, 1989 2:00 PM SECOND READING AND ADOPTION BY CITY COUNCIL FY 1989-1990 OPERATING BUDGET (Formal City Council Session) (All other Sessions will be in accordance with the City Code) M I N U T E S VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia April 17, 1989 The FY 1989-1990 OPERATING BUDGET WORKSHOP of the VIRGINIA BEACH CITY COUNCIL was called to order by Vice Mayor Robert E. Fentress in th, Conference Room, City Hall Building on Monday, April 17, 1989, at 11:00 A.@l. Council @lembers Present: Albert Ii Balko, John A. Baum, Vice Mayor Robert E. Fentress Harold Heischober, Barbara M. Henley, Reba S. @IcClanan, John D. Moss, Nancy K. Parker and Iiilliam D. Sessoms, Jr. Council Members Absent: iMayor Meyera E. Oberndor" (ENTERED: 11:30 A.M.) (Mayor Oberndorf was attending the SPSA Recycling demonstration.) John L. Perry (ENTERED: 11:08 A.Ii.) - 2 - C ON C E R N S OF T HE MAYOR ITEM # 31060 Mayor Oberndorf apologized for entering the City Council Session late. The Southeastern Public Service Authority initiated its program relative curbside recycling. Clear glass and plastic bottles, aluminum cans and newspapers will be recycled. Receptacles will be provided. The neighborhoods were chosen based upon whether they were middle or upper inco.,ne and had wide streets. Virginia Beach's neighborhoods chosen for this program were: Wellington Woods, Great Neck Meadows, Forest Park, Lake Trant, Colonial Oaks and Laurel Cove. Pick-up of the items to be recycled will be on Tuesdays. The approximate cost of the trucks is $69,000. Mayor Oberndorf has the information relative the annual operating cost and the estimated revenue of this program. ITE14 # 31061 Mayor Oberndorf displayed a gift of Third Graders from College Park Elementary School. A map was drawn of Virginia Beach. The children listed all the reasons they loved Virginia Beach. - 3 - C I T Y C 0 U N C I L C 0 N C E R N S ITEM # 31062 Councilwor,ian Henley referenced the WORKSHOP relative GROWTH MANACEMM SCHEDULED for Tuesday, April 18, 1989, at 5:00 P.M., Room 234, Princess Anne High School. Councilwoman Flenley further advised to receive input and answer questions on an informal basis regarding the GROWTH MANAGEMENT currently being developed for the southern part of the City, officials will be at the Creeds Activity Center, Thursday, April 20, 1989 from 9:00 A.Ii. to 9:00 P.M. City Councii was invited to participate at their convenience. ITFI,l # 31063 Vice i@4ayor Fentress distributed a REVISED version of an Ordinance to AMEND and REORDAIN the Code of the City of Virginia Beach by ADDING Sections 2-195, 2- 196, 2-197, 2-198, and 2-199 re the Capital Improvement Program. (See Item IV- F.3 RESOLUTIONS/ORDI14ANCE). Section 2-195 - Submittal shall be on or before the second regular meeting of the City Council in September of each year. Section 2-198 - Adoption shall be no later than the first regular meeting of the City Council in December of each year. ITEM # 31064 Councilwoman Parker referenced the possibility of City sewerage at Sandbridge. The City Manager advised Civic groups were circulating petitions. At such time as the 51% threshold was reached, the City would be required to bring the iten back to the City Council with identification of the service area and the cost. ITEM # 31065 The City Clerk referenced a REVISED version of an Ordinance upon FIRST READING to ACCEPT and APPROPRIATE a $4,000 State Literary Grant by the Commonwealth into the FY 1988-89 Operating Budget of the Library Department (See Item IV-G.6 of the CONSENT AGENDA). ITEM # 31066 Councilman Perry referenced a letter from Clyde W. Hassell relative problem areas on Burton Station Road. Mayor Oberndorf advised she responded to Clyde Hassell on April Fifth. A copy of said letter is hereby made a part of the record. There is an on-going communications program that elicits dialogue with communities so that problems like Mr. Hassell's may be alleviated. The neighborhood representative in Burton Station is Issac Herbert, President of the Burton Station Civic League. - 4 - ITEM # 31067 The INFORMAL SESSION of the VIRGINIA BEACH CITY COUNCIL was called to order by Mayor Meyera E. Oberndorf in the Conference Room, City Hall Building, on Monday, April 17, 1989, at 1:20 P.M. Council Members Present: Albert W. Balko, John A. Baum, Vice Mayor Robert E. Fentress, Harold Heischober, Barbara M. Henley, Reba S. McClanan, John D. Moss, Mayor Meyera E. oberndorf, Nancy K. Parker, John L. Perry and William D. Sessoms, Jr. Council Members Absent: None A ril 17 1 8 - 5 - ITEM # 31068 Mayor Meyera E. Oberndorf entertained a motion to permit City Council to conduct its EXECUTIVE SESSION, pursuant to Section 2.1-344, Code of Virginia, as amended, for the following purposes: 1. PERSONNEL 14ATTERS: Discussion or consideration of employment, assignrient, appointment, promotion, performance, demotion, salaries, disciplining or resignation of public officers, appointees or employees. 2. PUBLICLY HEID PROPERTY: Discussion or consideration of the condition, acquisition or use of real property for public purpose, or of the disposition of publicly field property, or of plans for the future of an institution which could effect the value of property owned or desirable for ownership by such institution. 3. LEGAL MATTERS: Consultation with legal counsel or briefings by staff members, consultants or attorneys, pertaining to actual or potential litigation, or other legal matters within the jurisdiction of the public body pursuant to Section 2.1-344 (a) (6). Upon motion by Councilwoman Henley, seconded by Vice Mayor Fentress, City Council voted to proceed into EXECUTIVE SESSION. Votin-.: 11-0 Council Members Voting Aye: Albert W. Balko, John A. Baum, Vice Mayor Robert E. Fentress, Harold Heischober, Barbara @l. @@lenley, Reba S. McClanan, John D. Moss, Mayor Meyera E. Oberndorf, Nancy K. Parker, John L. Perry and William D. Sessoms, Jr. Council Members Voting Nay: None Council Members Absent: None A ril 17, 1989 - 6 - F 0 R M A L S E S S I 0 N VIRGINIA BEACH CITY COUNCIL April 17, 1989 2:00 P.@l. Mayor Meyera E. Oberndorf called to order the FORMAL SESSION of the VIRGINIA BF-ACH CITY COUNCIL in the Council Chambers, City Hall Building, on Monday, April 17, 1989, at 2:00 P.M. Council Members Present: Albert W. Balko, John A. Baum, Vice Mayor Robert E. Fentress, Harold Heischober, Barbara M. Henley, Reba S. McClanan, John D. Moss, Mayor Meyera E. Oberndorf, Nancy K. Parker, John L. Perry and William D. Sessoms, Jr. Council Members Absent: None INVOCATION: Reverend Richard J. Keever Bayside Presbyterian Church PLEDGE OF ALLEGIANCE TO THE FLAG OF TIIE UNITED STATES OF AMERICA A ril 17, 1989 7 Item IV-D.I. MINUTES ITEM 31069 Upon motion by Councilrqan Sessoms, seconded by Vice Mayor Fentress, City Council APPROVED the MINUTES of the INFORMAL AND FORMAL SESSIONS of the City Council Meeting of April 10, 1989, as DEFINED: Page 27, ITEM # 31051 The following comments shall be DEFINED to correctly read: iies4!ellell to-mh@4 *4@ 4@ r@il@@t ligofi Br+dr,e Roed that h&5 bee" refroved. e4aFtge4 r.lie pEeseNt Feat B@td6@ RI.d. Councilwoman McClanan wished the record to reflect she is not in favor of removing that Section of London Bridge Road between Shipps Corner Road and Dam Neck Road (indicated in paragraph 2 of Amendment 4). Councilwoman McClanan believed the map should be changed to reflect the present route of London Bridge Road as selected by the City Council. Voting: 11-0 Council Members Voting Aye: Albert W. Balko, John A. Baum, Vice Mayor Robert E. Fentress, Harold Heischober, Barbara M. Henley, Reba S. McClanan, John D. l@ioss, Mayor Meyera E. Oberndorf, Nancy K. Parker, John L. Perry and William D. Sessoms, Jr. Council Members Voting Nay: None Council Members Absent: None 8 Item IV-E.l. CITY t4ANAGER'S PRESENTATION ITEM 31070 NON-TIDAL WETLANDS REGULATIONS Jack Whitney, Administrator - Office of Environmental Management, introduced the subject of NON-TIDAL WETLANDS REGULATIONS by presentations from representations of agencies most closely associated with current activities. Steve Walls, Environmental Scientist with the United States Army Corps of Engineers, advised the Corps of Engineers basically regulates wetlands commencing in 1975. The initial method utilized in delineating wetlands was each field scientist to go into the fields and look for vegetation and hydrology. In the early 1980's, there was an attempt to standardize this delineation procedure. Wetlands are those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soils. Steve Walls identified the three mandatory criteria delineatin.@ wetlands: Hydrophytic vegetation Hydric Soils Hydrology By the assistance of slides, Steve Walls, identified Non-tidal Wetlands: Rivers, streams, lakes, impoundments and their adjacent wetland systems Headwater streams and Wetlands - Nationwide 26 Isolated Wetlands There are problem areas which do not resemble wetlands. There might be a wooded area with water within a foot of the surface only a week or two weeks of the year. The rest of the year it is essentially dry and appears to be a building site. Approximately eighty to ninety percent of the area south of the Green Line has hydric soils. If there are unaltered hydric soils, it can be assumed the hydrology is present to presume the vegetation will be sufficient to classify as a wetland. Up to 60% of the sails in the entire City of Virginia Beach are hydric soils. Steve Walls advised there is a difference between scientifically delineating wetlands and regulating them. The Corps is aware of the fact different types of wetlands have different values and are aware of those values which are deemed significantly important by Congress to protect. Those values are water quality benefits and unique habitat values. The Corps is sensitive to the fact that these encompass many private properties and they basically hold the future of that property in abeyance. Scott Crafton, Chief of Technical Services for the Chesapeake Bay Local Assistant Department, presented information relative the State activities of the NON-TIDAL WETLANDS AREA. The Chesapeake Bay Local Assistant Department was created recently with the adoption of the Chesapeake Bay Preservation Act. Scott Crafton distributed information relative Chesapeake Bay Preservation Areas. (Said information is hereby made a part of the record.) 9 Item IV-E.l. CITY MANAGER'S PRESENTATION ITEM # 31070 (Continued) NON-TIDAL WETLANDS REGULATIONS The Chesapeake Bay Preservation Areas were proposed to be delineated into two components: Resource Protection Areas and Resource Management Areas. Resource Protection Areas include: Tidal wetlands Non-tidal wetlands adjacent to other RPA's or Tributary streams Tidal shorelines. Vegetative buffer zones (along the outside edge of the above features. Near Tidal waters this would be 100-feet wide. The protection of existin-. vegetation would be encouraged within this zone). Resource Management Areas include: Non-tidal wetlands bounded by or adjacent to R14As or otherwise determined to provide significant water quality benefits Floodplains Highly erodible soils and steep slopes Highly permeable soils Outside of the Buffer zone, the Chesapeake Bay Local Assistant Department is directing local governments to map the Resource Management Areas. Virginia has slightly more than one million acres of wetlands, more than 75% of which are inland wetlands. Between 1956 and 1977, over 63,000 acres of coastal and inland vegetated wetlands were lost. Inland forested wetlands were most threatened, experiencing a 9% loss in 21 years. Direct conversion of wetlands to cropland accounted for almost one-half of the loss of inland vegetated wetlands. The 1985 Federal Farm Bill has a "swamp buster" provision that basically says if the farmer does convert those wetlands then he may lose his other USDA entitlements. The Section 404 program focused on disturbances characterized mainly by dredging or filling of wetlands. The program does not address draining wetlands or other kinds of alterations that can cause the same amount of losses of wetlands as the dredging and filling. Those kind of alterations of wetlands that can result in wetland losses are becoming a greater focus of newer wetlands programs both at the State and Federal Level. Some of which were addressed in House Bill 1037. At the state level, the policy direction is to look at regulations which will prevent further losses of wetlands and to the greatest extent possible will allow for gain in that resource. The Administration proposed to the General Asseinbly the alternative program would be implemented by the State Water Control Board through their 401 Certifications. A Bill which passed the General Assembly this past session requires the Water Control Board to issue permits for any activities that would receive a 401 Certification. The 401 Certifications have certain limitations as they are basically directed at Federally permitted projects. The Chesapeake Bay Local Assistant Department is proposing some methodology to regulate non-tidal wetlands within Chesapeake Bay Preservation areas in the interim until the Water Control Board Program is developed and the Wetlands Study Commission makes its proposals next session to the General Assembly. A ril 17 1989 - 10 - Item IV-E.l. CITY MANAGER'S PRESENTATION ITE@L # 31070 (Continued) NON-TIDAL WETLANDS REGULATIONS Under the Act, the criteria are to safeguard the clear waters of the Commonwealth and prevent any increase in pollution. Non-tidal wetlands help to perform these functions. The wetlands provision of the Chesapeake Bay Implementation Program calls for no net loss, and to the extent possible, a net gain of wetlands. Compensation of non-tidal wetlands in Resource Management Areas at a 1:1 ratio if disturbance or alteration is greater than 10,000 square feet. Non-tidal wetlands in Resource Protection Areas are to be compensated at no less than a 2:1 ratio for disturbance or alteration of any area. Evidence of all applicable non-tidal wetlands permits is to be submitted to localities before grading will be authorized. Scott U-rafton outlined the assistance to Localities from the Chesapeake Bay Local Assistance Department: Mapping National Wetland Inventory Maps Enhanced mylars from the Virginia Rivers Inventory Project through the Council on the Environment. Department Staff Department will atterqpt to hire a wetlands specialist to assist in the on site identification of non-tidal wetlands where needed for plan preparation or review. Department will review non-tidal wetlands compensation plans on request. Publications New wetland delineation manuals from the U.S. Army Crops of Engineers will be provided by the Department. Wetland plant lists for Virginia from the U.S. Fish and Wildlife Service will be provided by the Department. Training Department will make training available in wetland plant identification, wetland delineation and wetland compensation Computer Software Department will assist localities and Planning District Commissions with software development to track non-tidal wetland disturbances and compensation. The proposed regulations will be printed in the Virginia Register, April 24, 1989. There will be a sixty day written comment period with nine (9) Public Hearings Scheduled. Hopefully, ADOPTION will be by July First. Item IV-E.l. CITY MANAGER'S PRESENTATION ITEM # 31070 (Continued) NON-TIDAL WETLANDS REGULATIONS Louis Cullipher, Director of Agriculture, discussed (with graphics) preliriinary impacts to tlie City by virtue of these new legislative initiatives. Louis Cullipher displayed a map depicting 80-85% of the soil in Virginia Beach as being hydric. The other map displayed the Resource Protection Area. The areas outside this area would be the Resource Management Area. The City Staff will prepare a graphic from the proposed regulations depicting the impact of said regulations along with other existing regulations. - 12 - Item IV-F.1 RESOLUTIONS/ORDINANCE ITEM # 31071 Upon motion by Councilwoman Parker, seconded by Councilr@ian Perry, City Council ADOPTED Resolution approving the issuance of INDUSTRIAL DEVELOPMENT REVENUE BOND: Dynaric, Inc. $7,000,000 Voting: 11-0 Council Members Voting Aye: Albert W. Balko, John A. Baum, Vice Mayor Robert E. Fentress, Harold Heischober, Barbara M. @ienley, Reba S. @IcClanan, John D. Moss, Mayor Meyera E. Oberndorf, Nancy K. Parker, John L. Perry and William D. Sessoms, Jr. Council Members Voting Nay: None Council Members Absent: None A ril 17 1989 4/25/84 EXHIBIT F SUMMARY SHEET CITY OF VIRGINIA BEACH DEVELOPMENT AUTHORITY INDUSTRIAL DEVELOPMENT REVENUE BOND 1. PROJECT NAME: Dynaric, Inc. the east side of Bayside Court approximately 575 feet from the 2. LOCATION: intersecj:ion of Bayside Court and Bayside Avenue in the City of Vi ItiBeach, Virainia Ac:t!lza; on, construction and equipping of 162,000 sq. ft. structure to house 3. DESCRIPTION OF PROJECT: a facility for the manufacturing of non-metallic strapping ma@eria printing blanket material and o .;her in@ce@ with office an ware ouse ac. ;.nt thereto 4. AMOUNT OF BOND ISSUE: $7,000,000 5. PRINCIPALS: Dynaric, Inc. DIC Americas, Inc. 6. ZONING CLASSIFICATIONI a. Present zoninq classification of the Property Industrial - 1 b. Is rezoning proposed? Yes No XX C. If so, to what zoning classification? EXHIBIT E RESOLUTION APPRCVING THE ISSUANCE OF INDUSTRIAL DEVELOPMENT REVENUE BONDS FOR DYNP,RIC, INC. WHEREAS, the City of Virginia Beach Developnent Authority (the Authority) has considered the application of DYNPRIC, INC. (the Company) for the issuance of the Authority's industrial development revenue bonds in an arount not to exceed $7,000,000 (the Bonds) to assist in the financing of the Company's acquisition, construction, and equipping of a facility for the manufacturing of non-metallic strapping material, printing blanket material and other items with office and warehouse space incident thereto (the Facility) to be located on the east side of Bayside Court approximately 575 feet from the intersection of Bayside Court and Bayside Road, in the City of Virginia Beach, Virginia, and has held a public hearing thereto on April 11, 1989; and WHEREAS, the Authority has requested the City Council (the Council) of Virginia Beach, Virginia (the City), to approve the issuance of the Bords to comply with Section 103(k) of the Internal Revenue Code of 1954, as amended; and WHEREAS, pursuant to SS15.1-1378.1, Code of Virginia, 1950, as amended, a copy of the Authority's resolution approving the issuance of the Bonds, subject to terms to be agreed upon, and a reasonably detailed sumnary of the comrnents expressed at the public hearing, if any, have been filed with the Council of the City of Virginia Beach, Virginia; THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: 1. The Council of the City of Virginia Beach, Virginia, approves the issuance of the Bonds by the City of Virginia Beach Development Authority for the benefit of DYNARIC, INC., to the extent of and as required by Section 103(k) of the Internal Revenue Code, to permit the Authority to assist in the financing of the Facility. 2. The approval of the issuance of the Bonds, as required by section 103(k), does not constitute an endorsement of the Bonds or the creditworthiness of the Company; but, pursuant to Chapter 643, Virginia Acts of Assembly of 1964, as amended, the Bonds shall provide that neither the City nor the Authority shall be obligated to pay the Bonds or the interest thereon or other costs incident thereto except from the revenues and moneys pledged therefor, and neither the faith or credit nor the taxing power of the Cominonwealth, the City, or the Authority shall be pledged thereto. 3. The Council further resolves to petition the Virginia Department of Housing and Community Development (the Department) requesting that the Department award a portion of its private activity bond allocation for industrial revenue bonds in an amount not to exceed the principal amount of the Bonds. 4. This Resolution shall take effect immediately upon its adoption. Adopted by a majority of a quorum of the Council of the City of Virginia Beach, Virginia, on April 17, 1989 1989. -2- Fxhibit D FISCAL IMPACT STATEMENT FOR PROPOSED INDUSTRIAL REVENUE BOND FINANCING DATE: March 9, 1989 TO: THE CITY COUNCIL OF VIRGINIA BEACH, VIRGINIA PROJECT NAME: DYNARIC, INC. TYPE OF FACILITY: Manufacturing, warehouse and offices 1. Maximum amount of financing sought $ 7,000,000 2. Estimated taxable value of the facility's real property to be constructed in the municipality $ 5,800,000 3. Estimated real property tax per year using present tax rates $ 44,000 4. Estimated personal property tax per year usinq present,tax rates $ 1 3 , 0 0 0 5. Estimated merchants' capital (business license) tax per year using present tax rates $ N/A 6. Estimated dollar value per year of goods and services that will be purchased locally $ 250,000 7. Estimated number of regular employees on year round basis $ 85-100 8. Average annual salary per employee $ 2 2 . '108 - 0 0 The information contained in this Statement is based solely on facts and estimates provided by the Applicant, and the Authority has made no independent investigation with repect thereto. City oE Virginia Beach Development Authority By Chd,irm-an Economic Impact Statament $7,400,000 1. Amount Of invastment 2. Amount of industrial revenue bond financing soughc $ 7,000,000 3. Estimated taxable value of the facility's real property to be constructed ir @he City of Virginia Beach s 4. Estimated real property tax per year using present tax rate $ A4. 000 5. Estimated personal property tax $ 1 3 , 0 00 6. Economic impact statement demoustrating the overall return to tha city: A. Number of new jobs 1.5 -. t)ossible B. Payroll ganerated $ .3 0 0, 0 0 0 kv. Wag* 2 0 0 0 C. Number of jobs retained .85 D. Pay-roll retained S 1,896,157 Av. Wage S 22,308.00 E. Estimate Sf tho value of goods and services purchased within the Scographic bouudary of V@inia Beach by type (inventory, machinery. profassional services., insurance, motor vohicles, atc.): Ty,po Value miscellaneous offi@e $ equipment, plant services, accountinq $*, nd legal services, insurance, etc. $ 250,000 $ TOT,&L s 250,000 Estimated building Pa-it fee and other municipal fees $ 01000 G. Estimated const-ction payroll $2,000,000 ii. Estimated valup- of construction material to be purchased within the City of Virginia Beach $ 3 000 000 Estimated number of consrruction jobs 0 j. Any other items which the applicanc feels the Authority should be made aware of in t will Permit the evaluating the project '2he projec corporate citizen to exdand while remaining in he City 7. is the sits currently zoned for the SP&Cific use being Zoued proposad for industrial revonue baud finilucing? Yes x No 8. Has a bond purchasa agreement/commitment boan accepted by No x ( ending) the applicant? t(attar-h a copy) Yes - p 9. will the bond fiuanring r-lose within 90 days from tha date of adoption Of the induce-nt resolutiotl? yes X (possibly co id@be 180 days) No 10. Location of projact (att&Cll locatiotl MAP)T @meist siap 0 Bayside Court approximately 575 fee the intersection of Bayside Court a Bayside Ro 11. Uplgn&tion of alteruative financing that has been raviowed for project none at this tirne- I hereby certify that the information stated in the above Economic Impact Statement is accurate and true in all respects. DYNARIC, T-A Subsccibed and sworn to before me this /@@day of 1989. ho Notary Pub@ic my Commission Expires: -Iw-e 9 03 EXHIBIT G CREE, COVE H.,b., D.f... U@,, PROJECT: Dynaric, Inc. LOCATION OF PROJECT: on the east side of Bayside Court approximately 575 feet from the intersection of Bayside Court and Bayside Road in Virginia Beach, Virginia TYPE OF PROJECT: manufacturing facility - 13 - Item IV-F.2. RESOLUTIONS/ORDINANCES ITEM # 31072 Upon motion by Vice Mayor Fentress, seconded by Councilwoman Parker, City Council ADOPTED: Resolution authorizing the issuance, sale and award of a $13,000,000 Water and Sewer Revenue Bond, Series of 1989, of the City of Virginia Beach, and providing for the form, details and payment thereof. The City Clerk referenced distribution of EXHIBIT A, which should accompany the financing agreement. Voting: 11-0 Council i@@embers Voting Aye: Albert W. Balko, John A. Baum, Vice Mayor Robert E. Fentress, Haroid Ileischober, Barbara @l. Henley, Reba S. McClanan, John D. i@loss, Mayor Meyera E. Oberndorf, Nancy K. Parker, John L. Perry and William D. Sessoms, Jr. Council Members Voting Nay: None Council Members Absent: None A ril 17 1989 RESOLUTION AUTHORIZING THE ISSUANCE, SALE AND AWARD OF A $13,000,000 WATER AND SEWER REVENUE BOND, SERIES OF 1989, OF THE CITY OF VIRGINIA BEACH, VIRGINIA, AND PROVIDING FOR THE FORM, DETAILS AND PAYMENT THEREOF WHEREAS, the issuance of $5,500,000 water and sewer revenue bonds of the city of Virginia Beach, Virginia (the "City"), was authorized by an ordinance adopted by the City Council on September 21, 1987, and the issuance of $17,800,000 water and sewer revenue bonds of the City was authorized by an ordinance adopted by the City Council on December 19, 1988, all for the purpose of continuing a program of improvements and extensions to the City's water and sewer system (the "System") as more fully described in the Financing Agreement, as hereinafter defined, none of which bonds have been issued and sold; WHEREAS, it appears to be in the best interest of the City and its residents to borrow $13,000,000 to finance the Project, as defined in the Financing Agreement, and to pledge the revenues of the System to the payment thereof on a parity with its out- standing water and Sewer Revenue Bonds (P A Corp.), dated November 1, 1977, its Water and Sewer Revenue Notes (P A Corp.), dated December 15, 1977, its Drought Relief Revenue Bonds, dated February 1, 1978, its Water and Sewer Revenue Notes (Kempsville Utilities), dated August 31, 1982, and its Water and Sewer Reve- nue Notes (County Utilities), dated August 31, 1982 (collective- ly, the "Prior Bonds"); WHEREAS, the City has determined to issue a $13,000,000 water and sewer revenue bond, consisting of $5,500,000 authoriza- tion from the ordinance adopted on September 21, 1987, and $7,500,000 authorization from the ordinance adopted on December 19, 1988; and WHERFAS, the City has applied to Virginia Resources Authori- ty ("VRA") to purchase the City's $13,000,000 water and sewer revenue bond, and VRA has agreed to do so from the proceeds of its Water and Sewer System Revenue Bonds (Pooled Loan Program), 1986 Series A (the "VRA Bonds"), and pursuant to a Financing Agreement dated May 1, 1989, between VRA and the City (the "Fi- nancing Agreement"), the form of which has been presented to this meeting; BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: 1. There is hereby authorized to be issued and sold to VRA a $13,000,000 water and sewer revenue bond of the City. 2. The form of the Financing Agreement submitted to this meeting is hereby approved. The City Manager of the City is hereby authorized to execute the Financing Agreement in substantially such form, with such completions, omissions, inser- tions and changes not inconsistent with this resolution as may be approved by the City manager, whose approval shall be evidenced conclusively by the execution and delivery thereof. 3. The bond shall be designated "Water and Sewer Revenue Bond, Series of 1989," shall be dated may 1, 1989, and shall be in fully registered form in the denomination of $13,000,000. The bond shall be payable in installments on November 1 in years and amounts, together with interest at rates, both as shall be deter- mined by VRA and approved by the City manager; provided, however, that the bond shall have an average interest coupon rate not to exceed 10% per year and shall mature not later than 20 years after its issuance. Notwithstanding the foregoing, the City Council shall ratify the maturity schedule and the interest rates on the bond prior to its issuance. In addition, the City shall pay a late payment charge as provided in the Financing Agreement if any payment of principal or interest is not received within five days of its due date. The City intends that interest on the bond will be included in gross income for Federal income tax pur- poses. 4. The bond shall be equally and ratably secured on a pari- ty with the Prior Bonds. Principal of and premium, if any, and interest on the bond shall be payable as provided in the Financ- ing Agreement in lawful money of the United States of America, but solely from Revenues, as defined in the Financing Agreement (except to the extent such payments shall be made from the pro- ceeds of the bond, certain escrow funds established pursuant to the Financing Agreement or the income, if any, derived from the investment thereof), which Revenues are pledged therefor in the Financing Agreement on a parity with the Prior Bonds. Neither the Commonwealth of Virginia nor any political subdivision there- of, including the City, shall be obligated to pay the principal of or premium, if any, or interest on the bond or other costs in- cident thereto except from the Revenues and other moneys pledged thereto, and neither the faith nor credit of any political subdi- vision thereof, including the City, is pledged to the payment of the principal of or premium, if any, or interest on the bond or other costs incident thereto. 5. The bond shall be subject to prepayment as set forth in the Financing Agreement. 6. The bond shall be signed by the Mayor or Vice Mayor, shall be countersigned by the Clerk, and the City's seal shall be affixed thereon. The bond shall be substantially in the form of Exhibit A to the Financing Agreement, with such completions, omissions, insertions and changes not inconsistent with this res- olution as may be approved by the officers signing the bond, wbich approval shall be evidenced conclusively by the execution and delivery of the bond. -2- 7. The City hereby appoints the City Treasurer as registrar (the "Registrar") for the bond. The Registrar shall maintain registration books for the registration of the bond. Upon sur- render of the bond at the office of the Registrar, 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 Registrar shall authenticate and deliver in exchange, a new bond having an equal aggregate principal amount, of the same form and maturity, bearing interest at the same rates, and registered in such name as requested by the then registered owner or his duly authorized attorney or legal representative. Any such exchange shall be at the expense of the City, except that the Registrar may charge the person requesting such 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 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 shown as owner on the registration books on the 15th day of the month preceding each Monthly Payment Date, as defined in the Financing Agreement. 8. The City hereby covenants that it will not permit the gross proceeds of the bond to be used in any manner that would result in (a) 5% or more of 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 Internal Revenue Code of 1986, as amended (the "Code"), or (b) 5% or more of such gross 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, (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, and (d) the bond being deemed to be a "pri- vate activity bond" in any other manner as provided in Section 141 of the Code; provided, however, that if the City receives an opinion of nationally recognized bond counsel acceptable to VRA that any such restriction is not required to prevent the interest on the VRA Bonds from being includable in the gross income of the registered owners thereof under existing law, the City need not comply with such covenant. 9. All other actions of officers of the City in conformity with the purposes and intent of this resolution and in further- ance of the issuance and sale of the bond are hereby approved and confirmed. The officers of the City are hereby authorized and directed to execute and deliver all certificates and other in- struments considered necessary or desirable in connection with the issuance, sale and delivery of the bond pursuant to this resolution and the Financing Agreement. -3- 10. The Clerk, in collaboration with the City Attorney, is hereby authorized and directed to see to the immediate filing of a certified copy of this resolution with the Circuit Court of the City of Virginia Beach, Virginia, and within ten days thereafter to cause to be published once in a newspaper having general cir- culation in the City a notice setting forth (a) in brief and gen- eral terms the purposes for which the bond is issued and (b) the amount of the bond. 11. All resolutions or parts of resolutions in conflict herewith are hereby repealed. 12. This resolution shall take effect immediately. ADOPTED: April 17, 1989 -4- FINANCING AGREEMENT BETWEEN VIRGINIA RESOURCES AUTHORITY AND CITY OF VIRGINIA BEACH, VIRGINIA Virginia Resources Authority $100,000,000 Water and Sewer System Revenue Bonds (Pooled Loan Program) 1986 Series A TABLE OF CONTENTS Page ARTICLE I DEFINITIONS ARTICLE II REPRESENTATIONS Section 2.1. Representations by Authority ............. 6 Section 2.2. Representations by Borrower .............. 6 ARTICLE III ISSUANCE AND SALE OF THE LOCAL BOND Section 3.1. Purchase of the Local Bond ............... 8 Section 3.2. Conditions Precedent to Purchase of the Local Bond ........................... 9 ARTICLE IV USE OF LOCAL BOND PROCEEDS; ESCROW FUND Section 4.1. Loan to Borrower ......................... 11 Section 4.2. Establishment of Escrow Fund; Disbursements from Escrow Fund ........... 11 Section 4.3. Agreement to Accomplish Project .......... 15 Section 4.4. Permits .................................. 15 Section 4.5. Construction Contractors ................. 15 Section 4.6. Engineering Services ..................... 16 Section 4.7. Borrower Required to Complete Project .... 16 Section 4.8. Payments and Rights Assigned ............. 16 ARTICLE V PLEDGE, REVENUES AND RATES Section 5.1. Pledge of Revenues ....................... 16 Section 5.2. Annual Budget ............................ 17 ARTICLE VI PAYRENTS Section 6.1. Payment of Monthly Finance Payments ...... 18 Section 6.2. Calculation of Interest .................. 20 Section 6.3. Payment of Additional Payments ........... 20 ARTICLE VII PREPAY14ENTS Section 7.1. Prepayment of Fixed Rate Local Bond ...... 21 Section 7.2. Provisions Applicable to All Prepayments .............................. 21 ARTICLE VIII OPERATION AND USE OF SYSTEM Section 8.1. Maintenance .............................. 22 Section 8.2. Additions and Modifications .............. 22 Section 8.3. Use of System ............................ 22 Section 8.4. Inspection of System and Borrower's Books and Records ........................ 22 Section 8.5. Ownership of System ...................... 22 Section 8.6. Sale or Encumbrance ...................... 23 Section 8.7. Collection of Revenues ................... 23 Section 8.8. No Free Service .......................... 23 Section 8.9. No Competin(g Service ..................... 24 Section 8.10. Mandatory Connection ..................... 24 Section 8.11. Lawful Charges ........................... 24 ARTICLE IX INSURANCE, DAMAGE AND DESTRUCTION Section 9.1. Insurance ................................ 25 Section 9.2. Requirements of Policies ................. 25 Section 9.3. Notice of Damage, Destruction and Condemnation ............................. 26 r Section 9.4. Damage and Dest u c tion ................... 26 Section 9.5. Condemnation and Loss of Title ........... 26 ARTICLE X SPECIAL COVENANTS Section 10.1. Arbitrage Covenant ....................... 27 Section 10.2. Maintenance of Existence ................. 27 Section 10.3. Financial Records and Statements ......... 27 Section 10.4. Certificate as to No Default ............. 28 Section 10.5. Additional Indebtedness .................. 28 Section 10.6. Parity Bonds ............................. 28 Section 10.7. Further Assurances ....................... 29 Section 10.8. Other Indebtedness ....................... 29 Section 10.9. Assignment by Borrower ................... 29 Section 10.10. Purchase of Authority Bonds .............. 30 Section 10.11. Use of Local Bond Proceeds ............... 30 ARTICLE XI DEFAULTS AND RE14EDIES Section 11.1. Events of Default ........................ 30 Section 11.2. Notice of Default ........................ 31 Section 11.3. Remedies on Default ...................... 31 Section 11.4. Delay and Waiver ......................... 32 ARTICLE XII MISCELLANEOUS Section 12.1. Successors and Assigns ................... 32 Section 12.2. Amendments ............................... 32 Section 12.3. Limitation of Borrower's Liability ....... 32 Section 12.4. Applicable Law ........................... 33 Section 12.5. Severability ............................. 33 Section 12.6. Notices .................................. 33 Section 12.7. Right to Cure Default .................... 34 Section 12.8. Headings ................................. 34 Section 12.9. Term of Agreement ........................ 34 Section 12.10. Counterparts ............................. 34 Exhibit A - Form of Local Bond Exhibit B - Project Description Exhibit C - Project Budget Exhibit D - Opinion of Borrower's Counsel Exhibit E - Requisition Exhibit F - Parity Indebtedness FINANCING AGREEMENT THIS FINANCING AGREEKENT is made this 1st day of May, 1989, between the VIRGINIA RESOURCES AUTHORITY, a public body corporate and 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 "Borrower"). On July 15, 1986, the Authority issued its Water and Sewer System Revenue Bonds (Pooled Loan Program), 1986 Series A, in the aggregate principal amount of $100,000,000 (the "Authority Bonds"), pursuant to the terms of an Indenture of Trust dated as of July 1, 1986, between the Authority and United Virginia Bank, Richmond, Virginia (now Crestar Bank), as trustee (the "Trustee"). The Authority is using the proceeds of the Authority Bonds to make loans to and acquire obligations of local governments in Virginia from time to time to finance or refinance the costs of water supply or wastewater treatment facilities within the meaning of Section 62.1-199 of the Act. The Borrower has requested a loan from the Authority and will evidence its obligation to repay such loan by the Local Bond the Borrower will issue and sell to the Authority. The Borrower will use the proceeds of the sale of the Local Bond to the Authority to finance that portion of the Project Costs not being paid from other sources as set forth in the Project Budget. ARTICLE I DEFINITIONS The capitalized terms contained in this Agreement shall have the meanings set forth below unless the context requires otherwise and any capitalized terms not otherwise defined herein shall have the meaning assigned to such terms in the Indenture: "Act" means the Virginia Resources Authority Act, Chapter 21, Title 62.1 of the Code of Virginia of 1950, as amended. "Additional Payments" means the payments required by Section 6.3. "Agreement" means this Financing Agreement between the Authority and the Borrower, together with any amendments or supplements hereto. "Authority" means the Virginia Resources Authority, a public body corporate and a political subdivision of the Commonwealth of Virginia. -1- "Authority Bonds" means the Virginia Resources Authority Water and Sewer System Revenue Bonds (Pooled Loan Program), 1986 Series A, in the aggregate principal amount of $100,000,000. "Authorized Representative" means any member, official or employee of the Borrower authorized by resolution of the governing body of the Borrower to perform the act or sign the document in question. "Bond Counsel" shall have the rneaning set forth in the Indenture. "Borrower" means the City of Virginia Beach, Virginia, a political subdivision of the Commonwealth of Virginia. "Borrowers" means the Borrower and the other issuers of Local Bonds purchased by the Authority with the proceeds of the Authority Bonds. "Business Day" means a day of the year which is not a Saturday or Sunday or a day on which banking institutions located in Pennsylvania, New York or Virginia are required or authorized to remain closed or on which the Remarketing Agent or the New York Stock Exchange is closed. "Capital Reserve Fund" shall have the meaning set forth in the Indenture. "Capital Reserve Fund Bonds" shall have the meaning set forth in the Indenture. "Capital Reserve Fund Investment Agreement" shall have the meaning set forth in the Indenture. "Closing Date" means the date of the purchase of the Local Bond pursuant to this Agreement and Section 801 of the Indenture. "Code" means the Internal Revenue Code of 1954, as amended and in force on July 15, 1986, and applicable regulations, proposed regulations, procedures and rulings thereunder. "Consulting Engineer" means (i) the firm of independent consulting engineers of recognized standing and experienced in the field of water system or sanitary engineering (as appropriate) and registered to do business in Virginia, or (ii) the Utilities Engineering Manager or the bureau chiefs of utilities engineering of the Department of Public Utilities of the Borrower, or the corresponding officers of any successor department, who are (a) experienced in the fields of water system and sanitary engineering, and (b) licensed and registered as professional engineers in Virginia. The Consulting Engineer shall be designated from time to time by the Borrower in a written notice to the Authority and the Trustee and shall be subject to the reasonable approval of the Authority. -2- "Corresponding Bonds" means the Authority Bonds in an aggregate principal amount equal to the original principal amount of the Local Bond that were converted to bear interest at Fixed Rates on the Closing Date. "Crestar Prime Rate" means the interest rate per annum announced from time to time by Crestar Bank, Richmond, Virginia, or its successors as its prime rate, which interest rate is to change automatically as of the opening of business on the effective date of any change. "Current Parity Indebtedness" means that indebtedness of the Borrower, further described in Exhibit F, with which the Local Bond is issued on a parity basis. "Default" means an event or condition the occurrence of which would, with the lapse of time or the giving of notice or both, become an Event of Default. "Escrow Agent" means as escrow agent for the Escrow Fund identified in Section 4.2. "Event of Default" shall have the meaning set forth in Section 11.1. "Fiscal Year" means the period of twelve months established by the Borrower as its annual accounting period. "Fixed Rate" shall have the meaning set forth in the Indenture. "Fixed Rate Interest Period" means a period commencing on (and including) the first day of the calendar month in which any Monthly Finance Payment is due and continuing to (and including) the last day of such calendar month. "Government Obligations" shall have the meaning set forth in the Indenture. "Indenture" means the Indenture of Trust dated as of July 1, 1986, between the Authority and the Trustee, together with any amendments or supplements thereto. "Interest Payment Date" shall have the meanincj set forth in the Indenture. "Loan Fund" means the fund by that name established by Section 701 of the Indenture. "Loan Servicing Fee" means the monthly fee for the Authority's servicing of the Local Bond and this Agreement in an amount determined by multiplying the outstanding principal balance -3- of the Local Bond on the last day of each calendar month, commencing with the calendar month immediately following the calendar month in which the Closing Date occurs, by .0001041, which fee is payable by the Borrower to the Trustee as part of each Monthly Finance Payment commencing with the Monthly Finance Payment due in the second calendar month following the calendar month in which the Closing Date occurs. "Local Bond" means the bond in substantially the form attached to this Financing Agreement as Exhibit A issued by the Borrower and purchased by the Authority pursuant to this Agreement. "Local Bonds" means all of the obligations of the Borrowers, including the Local Bond, purchased by the Authority with the proceeds of the Authority Bonds. "Local Bond Prepayment Price" means the amount which the Borrower may or is obligated to pay to the Trustee to prepay in full or in part the Local Bond and all of the other obligations of the Borrower under this Agreement, which amount shall be calculated pursuant to Section 7.1. "Local Bond Proceeds" means the proceeds of the sale of the Local Bond to the Authority pursuant to this Agreement and the Indenture. "Local Resolution" means the resolution or ordinance adopted by the governing body of the Borrower approving the transactions contemplated by and authorizing the execution and delivery of this Agreement and the execution, issuance and sale of the Local Bond. "Monthly Finance Payments" means the payments required under Section 6.1. "Monthly Payment Date" shall have the meaning set forth in Section 6.1. "Net Proceeds" means the gross proceeds from any insurance recovery or condemnation award remaining after payment of attorneys' fees and expenses of the Trustee or the Borrower and all other expenses incurred in the collection of such gross proceeds. "Net Revenues Available for Debt Service" means the Revenues of the System less amounts necessary to pay Operation and Maintenance Expenses of the System. "Non-Asset Bonds Amount" shall have the meaning set Eorth in the Indenture. "Operation and Maintenance Expense" means the costs of operating and maintaining the System determined pursuant to generally accepted accounting principles, exclusive of (i) -4- interest on any debt payable from Revenues; (ii) depreciation and any other items not requiring the expenditure of cash; (iii) any amounts expended for capital replacements, repairs and maintenance not recurring annually or reserves therefor; and (iv) reserves for administration, operation and maintenance occurring in the normal course of business. "Opinion of Counsel" shall have the meaning set forth in the Indenture. "Project" means the particular project described in Exhibit B to be constructed, acquired or improved by the Borrower with, among other funds, the Local Bond Proceeds, with such material changes thereto as may be approved in writing by the Authority, which approval will not be unreasonably withheld; provided that, after such changes, such project is included in the definition of "project" set forth in Section 62.1-199 of the Act. "Project Budget" means the budget for the Project, a copy of which is attached to this Agreement as Exhibit C, with such material changes therein as may be approved in writing by the Authority, which approval will not be unreasonably withheld. "Project Costs" means the costs described in the Project Budget and such other costs permitted by the Act as may be approved in writing by the Authority, provided such costs are included in the definition of "cost" set forth in Section 62.1-199 of the Act. "Prorata Share" means from time to time a fraction the numerator of which is the outstanding principal amount of the Local Bond and the denominator of which is the aggregate outstanding principal amount of all Local Bonds acquired by the Authority with the proceeds of the Authority Bonds plus the amount, if any, in the Loan Fund and the Non-Asset Bonds Amount. "Rating Agency" shall have the meaning set forth in the Indenture. "Remarketing Agent" shall mean Painewebber Incorporated. "Revenue Fund" shall have the meaning set forth in the Indenture. "Revenues" means: (i) all rates, fees, rentals, charges, income and money properly allocable to the System in accordance with generally accepted accounting principles or resulting from the ownership or operation of the System, excluding customer and other deposits subject to refund until such deposits have become the property of the Borrower; (ii) the proceeds of any insurance covering business interruption loss relating to the System; (iii) interest on any money or securities related to the System held by -5- or on behalf of the Borrower except as otherwise provided by the Indenture; and (iv) any other money from other sources pledged by the Borrower to the payment of its Local Bond. "Subordinate Bonds" means bonds, notes or other evidence of indebtedness of the Borrower secured by a pledge of Revenues expressly made subordinate to the pledge of Revenues to secure the payment of the Local Bond. "System" means all plants, systems, facilities, equipment or property, of which the Project constitutes the whole or is a part, owned, operated or maintained by the Borrower and used in connection with the supply, treatment, storage or distribution of water and the collection and treatment of wastewater. "Trustee" means Crestar Bank, Richmond, Virginia, or its successors serving as such under the Indenture. "Trustee's Annual Fee" means an amount, payable in arrears on November 1 of each year, commencing November 1, 1986, equal to $9,250. ARTICLE II REPRESENTATIONS Section 2.1. Representations by Authority. The Authority makes the following representations as the basis for its undertakings under this Agreement: (a) The Authority is a duly created and validly existing political subdivision of the Commonwealth of Virginia vested with the rights and powers conferred upon it under the Act. (b) The Authority has complied in all respects with the Act in issuing, selling and delivering the Authority Bonds and has full right, power and authority to: (i) lend a portion of the proceeds of the issuance and sale of the Authority Bonds to the Borrower under the terms of the Local Bond and this Agreement to finance all or a portion of Project Costs; (ii) acquire the Local Bond; and (iii) carry out and consummate all other transactions contemplated by this Agreement. (c) This Agreement has been duly executed and delivered by the Authority and constitutes a legal, valid and binding obligation of the Authority enforceable against the Authority in accordance with its terms. Section 2.2. Ret)resentations by Borrower. The Borrower makes the following representations as the basis for its undertakings under this Agreement: -6- (a) The Borrower is a duly created and validly existing political subdivision of the Commonwealth of Virginia vested with the rights and powers conferred upon it by the laws of Virginia. (b) The Borrower has full right, power and authority to: (i) adopt the Local Resolution and execute and deliver this Agreement and the other documents related thereto; (ii) issue, sell and deliver its Local Bond to the Authority; (iii) construct, own and operate the Project and to finance the Project Costs by borrowing money for such purpose pursuant to this Agreement and the Local Bond; and (iv) carry out and consummate all of the transactions contemplated by the Local Resolution, this Agreement and the Local Bond. (c) This Agreement and the Local Bond were duly authorized by the Local Resolution and are in substantially the same form as presented to the governing body of the Borrower at its meeting at which the Local Resolution was adopted. (d) All permits, licenses, registrations, certificates, authorizations and approvals required to have been obtained as of the date of the delivery of this Agreement have been obtained for the execution and delivery by the Borrower of this Agreement and the Local Bond, the performance and enforcement of the obligations of the Borrower thereunder and the acquisition, construction, equipping, occupation, operation and use of the Project, and the Borrower knows of no reason why any future required permits or approvals cannot be obtained as needed. (e) This Agreement and the Local Bond have been executed and delivered by duly authorized officials of the Borrower and constitute the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their terms. (f) There are not pending nor, to the best of the Borrower's knowledge, threatened, any actions, suits, proceedings or investigations of a legal, equitable, regulatory, administrative or legislative nature in which a judgment, order or resolution may have a materially adverse effect on the Borrower in its business, assets, condition (financial or otherwise), operations or prospects or in its ability to perform its obligations under this Agreement or the Local Bond. (g) There have been no defaults by any contractor or subcontractor under any contract made in connection with the construction or equipping of the Project. (h) No material adverse change has occurred in the financial condition of the Borrower as indicated in the financial statements, applications and other information furnished to the Authority. -7- (i) There is no indebtedness of the Borrower secured by a pledge of Revenues prior to the pledge securing the Local Bond. (j) No Event of Default or Default has occurred and is continuing. ARTICLE III ISSUANCE AND SALE OF THE LOCAL BOND Section 3.1. Purchase of the Local Bond. (a) The Local Bond is to be in substantially the form attached to this Agreement as Exhibit A. (b) The Borrower agrees to issue and sell and the Authority agrees to purchase the Local Bond in the principal amount of $13,000,000 at a price equal to $ . The difference between the Local Bond's original principal amount and its purchase price shall be equal to the sum of the following amounts: (1) A fee to the Remarketing Agent for remarketing the Corresponding Bonds of $ (. % of the aggregate principal amount of the Corresponding Bonds); (2) Trustee's loan origination fee of $300; (3) Fees and expenses of any counsel to the Authority, including its Bond Counsel, and the Authority's financial advisor of $ 1 incurred in connection with the issuance and sale of the Local Bond and the conversion of the Corresponding Bonds to Fixed Rates; and (4) Expenses of printing in the amount of (c) On the Closing Date the Trustee shall disburse from the Loan Fund on behalf of the Borrower to the appropriate payees the fees specified in subsections (1) through (4) of Section 3.1(b). (d) The Borrower shall deposit with the Trustee on the Closing Date an amount determined by dividing the principal payment due on the Local Bond on the next ensuing November 1 by the number of calendar months following the calendar month in which the Closing Date occurs up to and including the calendar month in which such first principal payment is due. (e) The Borrower shall deposit with the Trustee on the Closing Date an amount equal to the interest to accrue on the Local Bond Erom and including the Closing Date to and including the last day oE the calendar month in which the Closing Date occurs. (f) The Borrower shall deposit with the Trustee on the Closing Date an amount determined as of the Closing Date by dividing the Borrower's Prorata Share of the Trustee's Annual Fee payable on the next ensuing November 1 by the number oE calendar months following the calendar month in which the Closing Date occurs up to and including the calendar month in which the Trustee's Annual Fee is payable. (g) The Borrower shall deposit with the Trustee on the Closing Date an amount equal to the Borrower's Prorata Share oE the interest to accrue on the Capital Reserve Fund Bonds less the Borrower's Prorata Share of the interest to accrue under the Capital Reserve Fund Investment Agreement during the period commencing on (and including) the Closing Date and continuing to (and including) the last day of the calendar month in which the Closing Date occurs. Section 3.2. Conditions Precedent to Purchase of the Local Bond. The Authority shall not be required to purchase the Local Bond unless the Authority has received the following, all in form and substance satisfactory to the Authority: (a) Certified copies of all resolutions and ordinances of the Borrower relating to this Agreement and the Local Bond. (b) A certificate of appropriate officials of the Borrower as to the matters set forth in Section 2.2 and such other matters as the Authority may reasonably require. (c) A contract or contracts for the construction and equipping of the Project or the Consulting Engineer's estimate of the Project Costs, which are acceptable to the Authority and which are in an amount and otherwise compatible with the plan of financing described in the Project Budget. (d) A certificate of the Consulting Engineer to the effect that in the opinion of the Consulting Engineer (i) the Project will be a part of the System; (ii) the Local Bond Proceeds and funds available from the other sources specified in the Project Budget will be sufficient to pay the estimated Project Costs; and (iii) during the first two Fiscal Years of the Borrower following completion of the Project, the projected Net Revenues Available for Debt Service will satisfy the rate covenant made by the Borrower in Section 5.1. In providing this certificate, the Consulting Engineer may take into consideration future System rate increases, provided that such rate increases have been duly approved by the governing body of the Borrower and any other person or entity required to give approval for the rate increase -9- to become effective. In addition, the Consulting Engineer may take into consideration additional future revenues to be derived under the existing contractual arrangements entered into by the Borrower and from reasonable estimates of growth in the consumer base of the Borrower. (e) Evidence satisfactory to the Authority that all governmental permits or approvals for the Project required to have been obtained as of the date of the delivery of this Agreement have been obtained and a statement of the Consulting Engineer that he knows of no reason why any future required governmental permits or approvals cannot be obtained as needed. (f) Evidence satisfactory to the Authority that the Borrower has obtained or has made arrangements satisfactory to the Authority to obtain any other financing for the Project as contemplated in the Project Budget. (g) Evidence satisfactory to the Authority that the Borrower has performed and satisfied all of the terms and conditions contained in this Agreement to be performed and satisfied by it as of such date. (h) Either a certificate of an independent certified public accountant or an opinion of Counsel, selected by the Borrower and acceptable to the Trustee and the Authority, to the effect that any indebtedness to be refinanced, whether directly or by reimbursement, with Local Bond Proceeds, was initially incurred by the Borrower, and that the proceeds of such indebtedness were fully expended to finance Project Costs, and also, if applicable, evidence satisfactory to the Authority that the issuance of the Local Bond to effect such refinancing has been approved by the State Council on Local Debt. (i) A certificate of the Consulting Engineer as to the date the Borrower is expected to complete the acquisition and construction of the Project, which shall in no event be later than (j) An Opinion of Bond Counsel, substantially in the form of Exhibit D, addressed to the Authority and the Trustee. (k) Such other documentation, certificates and opinions as may be reasonably required by the Authority. ARTICLE IV USE OF LOCAL BOND PROCEEDS: ESCROW FUND Section 4.1. Loan to Borrower. Subject to the terms and conditions of this Agreement, the Authority agrees to pay the purchase price of the Local Bond set forth in Section 3.1 of this -10- Agreement by causing the Trustee to transfer the purchase price of the Local Bond to the Escrow Agent pursuant to Section 4.2 and to make the payments provided for in Section 3.1(c). Section 4.2. Establishment of Escrow Fund; Disbursements from Escrow Fund. The Authority shall cause the Trustee on the Closing Date to transfer to the Escrow Agent the purchase price of the Local Bond. The Escrow Agent shall deposit the rnoneys transferred from the Trustee in a trust fund to be designated "City of Virginia Beach, Virginia Escrow Fund" ("Escrow Fund"). The Escrow Agent shall use money in the Escrow Fund in the manner hereinafter provided for payment of Project Costs. All money paid to the Escrow Agent for the account of the Escrow Fund shall be held in escrow separate and apart from other funds of the Authority, the Borrower and the Escrow Agent. There is hereby created a security interest in favor of the Authority and the Trustee in the money and investments in the Escrow Fund as security for the Borrower's obligations under this Agreement and the Local Bond, and this Agreement shall be deemed to be a security agreement with respect to such security interest. Upon the occurrence of an Event of Default, the Trustee, as the assignee of the Authority, shall have all rights and may exercise all remedies available to a secured party under the Uniform Commercial Code of Virginia with respect to the money and investments held in the Escrow Fund. The Borrower agrees to apply the Local Bond Proceeds solely and exclusively to the payment, or the reimbursement of the Borrower for the payment, of Project Costs and further agrees, upon the request of the Escrow Agent, the Trustee or the Authority, to exhibit to the Escrow Agent, the Trustee or the Authority receipts, vouchers, statements, bills of sale or other evidence of the actual payment of such Project Costs. The Escrow Agent shall disburse money from the Escrow Fund to or for the account of the Borrower not more frequently than once each calendar month (unless otherwise agreed by the Authority, the Escrow Agent and the Borrower) upon receipt by the Escrow Agent (with a copy to be furnished to the Authority) of the following: (a) A requisition (upon which the Escrow Agent and the Authority shall be entitled to rely) signed by an Authorized Representative and the Consulting Engineer and containing all information called for by, and otherwise being in the form of, Exhibit E to this Agreement; (b) If any requisition includes an item for payment for labor or to contractors, builders or materialmen, (1) a certificate, signed by the Consulting Engineer, stating that such work was actually performed or such materials, supplies or equipment were actually furnished or installed in or about the construction of the Project; and (2) a certificate, signed by an Authorized Representative, stating either that such materials, supplies or equipment are not[, to the best of such Authorized Representative's knowledge,] subject to any lien or security interest or that such lien or security interest will be released or discharged upon payment of the requisition. (c) If any requisition includes an item for payment of the cost of acquisition of any lands or easements, rights or interests in or relating to lands, there shall also be attached to such requisition: (1) a certificate, signed by the Consulting Engineer, stating that such lands, easements, rights or interests are being acquired and are necessary or convenient for the construction of the Project; and (2) an Opinion of Counsel stating that upon payment therefor the Borrower will have title in fee simple to, or easements, rights or interests sufficient for the purposes of, the Project over and through such lands. Upon receipt of each such requisition and accompanying certificate or certificates, the Escrow Agent shall disburse money to or for the account of the Borrower from the Escrow Fund in accordance with such requisition. The Escrow Agent shall in no event disburse money from the Escrow Fund after The Escrow Agent shall apply any balance remaining in the Escrow Fund after the earlier of the date the final disbursement is made or I to prepayment of the Local Bond pursuant to Article VII of this Agreement on the earliest date such prepayment may be made without premium or penalty. Notwithstanding the foregoing, before such prepayment the Borrower may direct that the fees and expenses of the Escrow Agent be paid to the Escrow Agent out of such balance. Any money held in the Escrow Fund may be separately invested and reinvested by the Escrow Agent, as directed by the Borrower, in: (a) Government Obligations or the securities of any open-end or closed-end management type investment company investing exclusively in Government Obligations and registered under the Investment Company Act of 1940; (b) Bonds, notes and other evidences of indebtedness to which the full faith and credit of the Commonwealth of Virginia or of any political subdivision thereof are pledged for the payment of the principal and interest or which are issued by the Commonwealth of Virginia, any agency or political subdivision -12- thereof or any district, authority or other political body of the Commonwealth of Virginia and which are rated AA or higher by at least one of the nationally recognized rating agencies; (c) Bonds, notes and other obligations of the Government National Mortgage Association, Farmers' Home Administration and the Export-Import Bank of the United States; (d) Bonds, notes, debentures, participations and other obligations issued by the Federal National Mortgage Association to the extent such obligations are guaranteed by the Government National Mortgage Association; (e) Any other obligation of the United States of America or any Federal agencies except the Farm Credit System, that may then be purchased under Section 2.1-327 of the Code of Virginia of 1950, as amended, with public sinking funds; and (f) Interest-bearing time deposits and certificates of deposit of national banks located within the Commonwealth of Virginia and of banks organized pursuant to Chapter 2, Title 6.1 of the Code of Virginia of 1950, as amended, provided that such deposits are secured as provided by the Virginia Security for Public Deposits Act. Any investments described in subsections (a), (b) and (c) of this Section may be purchased by the Escrow Agent pursuant to a repurchase agreement with any bank, including the Escrow Agent or any affiliate of the Escrow Agent, as principal and not as agent, within or without the Commonwealth of Virginia having a combined capital, surplus and undivided profits of not less than $50,000,000 and acceptable to the Escrow Agent. Such repurchase agreement shall be considered a purchase of such securities even if title to and/or possession of such securities is not transferred to the Escrow Agent so long as (i) the repurchase obligation of the bank is collateralized by the securities themselves, (ii) such securities have on each day the repurchase agreement is in effect a fair market value equal to at least 100% of the amount of the repurchase obligation of the bank, including principal and interest, and (iii) (A) such securities are held by the Escrow Agent or a third party as agent for the benefit of the Escrow Agent as fiduciary for the Trustee, as holder of the Local Bond, and not as agent for the bank serving as Escrow Agent in its commercial capacity or any other party and are segregated from securities owned generally by such third party, or (B) a perfected security interest in such securities is created for the benefit of the Trustee, as holder of the Local Bond, under the Uniform Commercial Code of Virginia or book entry procedures prescribed at 31 C.F.R. 306.1 et seq. or 31 C.F.R. 350.0 et seq., as amended. In addition, an investment in a money market fund registered under the Virginia Securities Act or the Investment Company Act of 1940, the investments of which fund are exclusively in obligations or -13- securities described in subsections (a), (b) or (c) of this Section, shall be considered an investment in obligations described in subsections (a), (b) or (C) Of this Section. All such investments shall be held by or under the control of the Escrow Agent and while so held shall be deemed a part of the Escrow Fund. The interest accruing thereon and any profit realized from such investments shall be credited to the Escrow Fund and used to pay the Project Costs, and any loss resulting from such investments shall be charged to the Escrow Fund. The Escrow Agent shall sell and reduce to cash a sufficient amount of such investments whenever the cash balance in the Escrow Fund is insufficient for its purposes. Notwithstanding anything to the contrary contained in this Agreement, all money held in the Escrow Fund on and after July 15, 1989, including any "investment proceeds" (as defined in Treasury Regulation Section 1.103-13(b)(ii)), shall be invested and reinvested at rates not in excess of the "yield" on the Authority Bonds or in obligations described in Section 103(a)(1) or (2) of the Code, the interest on which is excludable from the income of the holder thereof for federal income tax purposes, including certificates or units of or in any entity that (A) is treated as a "grantor trust" under Subchapter J, Part I, Subpart E of the Code in which the certificate holders are treated as owners of all assets owned by such trust and (B) invests exclusively in obligations described in Section 103(a)(1) or (2) of the Code, the interest on which is excludable from the income of the holder thereof for federal income tax purposes. The term "yield" shall have the same meaning as stated in Section 103(c) of the Code and the applicable regulations. The Authority shall determine and notify the Borrower in writing of the "yield" on the Authority Bonds on July 15, 1989, and from time to time thereafter as necessary to maintain compliance with Section 103(c) of the Code. Since the making of such investments from time to time will be subject to the Borrower's direction, the Authority and the Trustee, without thereby affecting the limitation of their liability set forth elsewhere in this Agreement, specifically disclaim any obligation to the Escrow Agent or the Borrower for any loss arising from investments pursuant to the provisions of this Section. The Escrow Agent shall not be responsible for any losses on investments made in accordance with this section and shall not be liable for any actions taken hereunder except for its negligence or willful misconduct. All reasonable fees and expenses of the Escrow Agent for acting as such shall, upon demand, be paid by the Borrower. Section 4.3. Agreement to Accomt)lish Proiect. The Borrower agrees to cause the Project to be acquired, constructed, expanded, renovated or equipped as described in Exhibit B and in acccrdance -14- with plans, specifications and designs prepared by the Consulting Engineer. Upon the reasonable request of the Authority, the Authority may review such plans, specifications and designs. The Borrower shall use its best efforts to complete the Project by the date set forth in the certificate provided to the Authority pursuant to Section 3.2(i). All plans, specifications and designs shall be approved by all applicable regulatory agencies. The Borrower agrees to maintain complete and accurate books and records of the Project Costs and permit the Authority, the Trustee or the Escrow Agent through their duly authorized representatives to inspect such books and records at any reasonable time. The Borrower, with the consent of the Authority, may amend the description of the Project set forth in Exhibit B. When the Project has been completed, the Borrower shall promptly deliver to the Authority, the Trustee and the Escrow Agent a certificate signed by an Authorized Representative of the Borrower and by the Consulting Engineer stating (i) that the Project has been completed substantially in accordance with this Section and in substantial compliance with all material applicable laws, ordinances, rules and regulations; (ii) the date of such completion; (iii) that all certificates of occupancy or other material permits then necessary for the use, occupancy and operation of the Project have been issued or obtained; and (iv) the amount to be reserved for payment of Project Costs. Section 4.4. Permits. The Borrower shall at its sole cost and expense obtain all permits, consents and approvals required by local, state or federal laws, ordinances, rules, regulations or requirements in connection with the acquisition, construction, equipping, occupation, operation or use of the Project. The Borrower shall, upon request, promptly furnish to the Authority and the Trustee copies of all such permits, consents and approvals. Section 4.5. Construction Contractors. Each construction contractor employed in the accomplishment of the Project shall be required in the construction contract to furnish a performance bond and a payment bond each in an amount equal to one hundred percent of the particular contract price. Such bonds shall list the Borrower, the Authority and the Trustee as beneficiaries. Each contractor shall be required to maintain during the construction period covered by the particular construction contract builder's risk insurance, worker's compensation insurance, public liability insurance, property damage insurance and vehicle liability insurance in amounts and on terms satisfactory to the Consulting Engineer. Section 4.6. Engineering Services. The Borrower shall retain a Consulting Engineer to provide engineering services covering the supervision and inspection of the construction of the Project and the operation of the System. The Consultincj Engineer shall certify to the Authority, the Trustee and the Escrow Agent as to the various stages of the ccmpletion of the Project as -15- disbursements of Local Bond Proceeds from the Escrow Fund are requested, as required by Section 4.2, and shall upon completion of the Project provide to the Authority and the Trustee the certificate required by Section 4.3. Section 4.7. Borrower Required to Comyl If the Local Bond Proceeds are not sufficient to pay in full the cost of the Project, the Borrower will complete the Project at its own expense and shall not be entitled to any reimbursement therefor from the Authority or any abatement, diminution or postponement of its payments under the Local Bond or this Agreement. Section 4.8. Payments and Rights Assigned. The Borrower consents to the assignment to the Trustee of the Local Bond and the rights of the Authority under this Agreement and agrees to pay directly to the Trustee all amounts payable by the Borrower thereunder. ARTICLE V PLEDGE, REVENUES AND RATES Section 5.1. Pledge of Revenues. Subject to the right of the Borrower to apply Revenues to the payment of Operation and Maintenance Expense, the Revenues are hereby pledged to secure the payment of the principal of and premium, if any, and interest on the Local Bond and the performance of the Borrower's obligations under this Agreement. This pledge shall be valid and binding from and after the execution of this Agreement by the Borrower. The Revenues, as received by the Borrower, shall immediately be subject to the lien of this pledge without any physical delivery thereof or further act. The lien of this pledge, on a parity with the Current Parity Indebtedness, shall, subject to the right of the Borrower to apply Revenues to the payment of Operation and Maintenance Expense, have priority over all other obligations and liabilities of the Borrower, and the lien of this pledge shall be valid and binding against all parties having claims of any kind against the Borrower regardless of whether such parties have notice of this pledge. (a) The Borrower covenants and agrees that it will fix and collect rates, fees and other charges for the use of and for services furnished or to be furnished by the System, and will from time to time revise such rates, fees and other charges in such manner that in each Fiscal Year the Net Revenues Available for Debt Service will equal at least (i) 115% oE the maximum annual amount required to pay the Monthly Finance Payments, the Additional Payments and all other indebtedness of the Borrower, including without limitation, indebtedness under leases which are treated as capital leases under generally accepted accounting principles, payable solely from Revenues, including the Current Parity Indebtedness and (ii) 100% of the maximum annual amount required to pay any other indebtedness of the Borrower, including -16- without limitation indebtedness under leases which are treated as capital leases under generally accepted accounting principles, and indebtedness to which the Borrower has pledged its full faith and credit and is also payable from Revenues. In the event, for any reason, the Revenues are insufficient to satisfy the foregoing covenant, the Borrower shall within ninety days adjust and increase its rates, fees and other charges or reduce its Operation and Maintenance Expense so as to provide sufficient Revenues to satisfy such requirement. Nothwithstanding the foregoing, such rate covenant shall not apply to indebtedness of the Borrower secured by (i) a pledge of the Borrower's full faith and credit, and (ii) a pledge of Revenues subordinate to that securing the Local Bond and the Current Parity Indebtedness. (b) Within 120 days after the close of each of the Fiscal Years, or such later date as the Authority may approve, the Borrower shall deliver to the Authority and the Trustee a certificate of the Consulting Engineer, an independent certified public accountant or other consultant acceptable to the Authority to the effect that (i) during the preceding Fiscal Year, the Borrower satisfied the rate covenant made by the Borrower in subsection (a) of this Section, or, if not, the amount of the deficit in Net Revenues Available for Debt Service which existed and the rates, fees and other charges which must be established by the Borrower to cure such deficit; and (ii) during the Fiscal Year in which the certificate is delivered, the projected Net Revenues Available for Debt Service will satisfy the rate covenant made by the Borrower in subsection (a) of this Section, or, if not, the rates, fees and other charges which must be established by the Borrower so that such rate covenant will be satisfied. (c) On or before the last day of each of the Fiscal Years, the Borrower shall review the adequacy of its rates, fees and other charges for the next Fiscal Year, and, if such review indicates the Borrower's rates, fees and other charges are insufficient to satisfy the rate covenant made by the Borrower in subsection (a) of this Section, the Borrower shall promptly take appropriate action to increase its rates, fees and other charges to cure any deficiency. Section 5.2. Annual Budget. Not less than forty-five days before the commencement of each Fiscal Year, the Borrower shall obtain a report from the Consulting Engineer giving advice and making recommendations as to the proper maintenance, repair, replacement and operation of the System during such Fiscal Year and estimating the cost thereof and as to the rates, fees and other charges which should be established by the Borrower in order to satisfy the rate covenant made by the Borrower in Section 5.1. A copy of such report shall be furnished by the Borrower to the Authority and the Trustee. Based on such report and such other information as the Borrower deems appropriate, the Borrower shall cause to be prepared a preliminary annual budget for such Fiscal Year setting forth a schedule of the rates, fees and other charges to be imposed by the Borrower, the Revenues estimated to be -17- generated thereby and the expenditures anticipated by the Borrower for operations, maintenance, repairs, replacements, improvements, debt service and other purposes. A copy of such preliminary budget shall be submitted to the governing body of the Borrower and to the Authority and the Trustee not less than fifteen days before the first day of each Fiscal Year. The Borrower agrees before the first day of each Fiscal Year to adopt a budget for such Fiscal Year containing the information required to be included in the preliminary budget. Such budget as approved by the governing body of the Borrower is referred to in this Agreement as the Annual Budget. The Borrower may at any time during any Fiscal Year amend the Annual Budget for such Fiscal Year so long as such amendment does not result in a default under this Agreement. A copy of the Annual Budget and any amendments thereto shall be submitted by the Borrower to the Authority and the Trustee. ARTICLE VI PAYKENTS Section 6.1 Payment of Monthlv Finance Pavments. The Borrower shall pay to the Trustee the principal of and interest on the Local Bond and all other amounts payable under this Agreement in lawful money of the United States of America. Such amounts shall be paid in Monthly Finance Payments, consisting of: (a) Commencing with the first calendar month immediately following the Closing Date and continuing Eor each calendar month thereafter to and including the next ensuing October, a deposit in an amount determined by dividing the principal payment due on the Local Bond on the next ensuing November 1 by the number of calendar months following the calendar month in which the Closing Date occurs up to and including the calendar month in which such first principal payment is due. Thereafter, commencing with the Monthly Finance Payment due in the calendar month of November immediately following the Closing Date and continuing as a part of each Monthly Finance Payment thereafter, a deposit equal to one-twelfth of the principal amount due on the Local Bond on the next ensuing November 1. (b) Interest on the Local Bond for the Fixed Rate Interest Period calculated as provided in Section 6.2. (c) Commencing with the first calendar month immediately following the Closing Date and continuing for each calendar month thereafter to and including the next ensuing October, a deposit in an amount determined by dividing the Borrower's Prorata Share of the Trustee's Annual Fee payable on the next ensuing November 1 by the number of calendar months following the calendar month in which the Closing Date occurs up to and including the calendar month in which the Trustee's Annual Fee is payable. Thereafter, commencing with the Monthly Finance Payment due in the calendar month of November immediately -18- following the Closing Date and continuing for each Monthly Finance Payment thereafter, a deposit in an amount equal to one-twelfth of the Borrower's Prorata Share of the Trustee's Annual Fee payable on the next ensuing November 1. (d) Commencing with the Monthly Finance Payment due in the second calendar month immediately following the Closing Date and continuing for each Monthly Finance Payment thereafter, the Loan Servicing Fee due for the immediately preceding calendar month. (e) Commencing with the first calendar month immediately following the Closing Date and continuing as a part of each Monthly Finance Payment thereafter, the Borrower's Prorata Share of the interest accrued on the Capital Reserve Fund Bonds for the period commencing on (and including) the first day of the applicable calendar month and continuing to (and including) the last day of such calendar month, less the Borrower's Prorata Share of the interest accrued, if any, under the Capital Reserve Fund Investment Agreement during such period. The Trustee shall determine each Monthly Finance Payment on or before the fifth day of each month, or the preceding Business Day if such fifth day if not a Business Day ("Payment Determination Date"), in the manner specified above and in Sections 6.2 and 6.5 and shall notify the Borrower of the amount of each Monthly Finance Payment not more than seven days following each Payment Determination Date. The Monthly Finance Payment shall be due on the twentieth day of each calendar month ("Monthly Payment Date"), commencing June 20, 1989, and continuing to and including October 20, 2008, unless (i) the Borrower redeems the Local Bond in full or (ii) the due date of the Monthly Finance Payments is accelerated pursuant to Section 11.3. The Trustee shall apply all deposits made by the Borrower to payment of the amounts due and payable under this Agreement and the Local Bond. Exceot in the case of a prepayment of the Local Bond pursuant to Article VII, no reduction in the outstanding principal amount of the Local Bond shall be deemed to have occurred as a result of the Monthly Finance Payment until the November 1 on which the related principal payment is due and paid under the terms of the Local Bond. Upon payment or prepayment of the Local Bond in full, the Trustee shall remit to the Borrower the amount by which all amounts deposited or paid pursuant to the Local Bond or this Agreement exceed the amount required to make the payments described in the Local Bond and this Agreement. The Trustee shall remit such amount to the Borrower not later than the date that would have been the next Monthly Payment Date had the Borrower not paid or prepaid the Local Bond in full. In the event any Monthly Finance Payment is not paid when due, such Monthly Finance Payment, exclusive of (i) the principal component thereof, which shall continue to bear interest -19- calculated in accordance with Section 6.2, and (ii) the interest component thereof, shall bear interest from its due date until paid at the Crestar Prime Rate. In addition to the Monthly Finance Payment, the Borrower agrees to pay to the Trustee (i) a late charge for any Monthly Finance Payment that the Trustee receives more than five days following the applicable Monthly Payment Date, such late charge to be in an amount equal to five percent of such overdue Monthly Finance Payment, and (ii) if the Borrower has caused the Trustee to withdraw funds from the Capital Reserve Fund due to the Borrower's failure to pay in a timely manner any Monthly Finance Payment an amount equal to the potential earnings lost on amounts so withdrawn as determined by the Trustee, which determination shall be binding upon the Borrower absent manifest error. Section 6.2. Calculation of Interest. The outstanding principal amount of the Local Bond shall bear interest at a fixed rate or rates determined as described below from and including the Closing Date. The rate or rates of interest on the Local Bond shall be set forth in Schedule I to the Local Bond and determined based on the Fixed Rates of the Corresponding Bonds. Section 6.3. Payment of Additional Payments. In addition to the Monthly Finance Payments, Borrower agrees to pay on demand of the Authority or the Trustee the following Additional Payments: (a) Borrower's Prorata Share of all fees and expenses of the Trustee for the Authority Bonds not included in the regular annual fees referred to in Section 6.1(c); (b) All fees and expenses of the Authority or the Trustee relating to the Local Bond or this Agreement, including, but not limited to: (1) The costs of the Authority and the Trustee in connection with the enforcement of this Agreement, including the reasonable fees and expenses of any attorneys used by the Authority or the Trustee; and (2) All expenses, including reasonable attorneys' fees, relating to any amendments, waivers, consents or collection or enforcement proceedings pursuant to the provisions hereof. Borrower agrees to pay interest on any Additional Payments enumerated in (a) or (b) above not received by the Authority or Trustee within ten (10) days of demand therefor at a rate equal to the Crestar Prime Rate. -20- ARTICLE VII PREPAYMENTS Section 7.1. Prepayment of Fixed Rate Local Bond. At its option and after giving at least forty-five days' written notice to the Authority and the Trustee, the Borrower may prepay the Local Bond on any Interest Payment Date on which Corresponding Bonds may be redeemed pursuant to Section 901(b) of the Indenture by paying to the Trustee the Local Bond Prepayment Price. Such written notice shall specify the date on which the Borrower will make such prepayment ("Prepayment Date") and whether the Local Bond will be prepaid in full or in part, and, if in part, the principal amount to be prepaid. Any prepayment of the principal amount of the Local Bond in part shall be in an amount equal to $100,000 and integral multiples of $5000 thereafter. Not less than 15 days before the Prepayment Date, the Trustee shall calculate the Local Bond Prepayment Price, which shall be the sum of the following amounts: (a) All past-due Monthly Finance Payments or other past-due payments under this Agreement and the Local Bond; (b) The principal amount of the Local Bond to be prepaid (against which, if the Borrower shall prepay the Local Bond in full, there shall be credited the aggregate amount of any deposits made by the Borrower pursuant to Section 6.1(a) that shall not have been applied to the principal amount of the Local Bond as of the Prepayment Date); (c) If the Borrower shall prepay the Local Bond in full, an amount equal to the interest portion of the Monthly Finance Payment which would have been due in the calendar month immediately following that in which the prepayment shall occur; (d) Any fees and charges incurred in connection with the prepayment of the Local Bond and any amounts due or to become due to the Authority or the Trustee under this Agreement; and (e) The premium, if any, applicable to the Corresponding Bonds to be redeemed on the next date the Corresponding Bonds are subject to optional redemption. Not less than fifteen days before the Prepayment Date, the Trustee shall send written notice of the Local Bond Prepayment Price to the Borrower and the Authority. The Borrower shall deposit the Local Bond Prepayment Price with the Trustee not less than ten days before the Prepayment Date. Section 7.2. Provisions Avt)licable to All Prepayments. All prepayments of the Local Bond shall be applied to the obligations due under the Local Bond in inverse order of maturity. Upon prepayrnent in full of the Local Bond and all other amounts due or to become due under this Agreement as provided for in this Article -21- VII, this Agreement shall terminate. The Local Bond may not be prepaid in whole or in part except as provided in this Article Vii. ARTICLE VIII OPERATION AND USE OF SYSTEM Section 8.1. Maintenance. At its own cost and expense the Borrower shall operate the System in a proper, sound and economical manner in compliance with all legal requirements and shall maintain the System in good repair and operating condition and from time to time shall make all necessary repairs, renewals and replacements. Section 8.2. Additions and Modifications. At its own expense the Borrower from time to time may make any additions, modifications or improvements to the System that it deems desirable and that do not materially reduce the value of the System or the structural or operational integrity of any part of the System, provided that all such additions, modifications or improvements comply with all applicable federal, state and local laws, rules, regulations, orders, permits, authorizations and requirements. All such renewals, replacements, additions, modifications and improvements shall become part of the System. Section 8.3. Use of System. The Borrower shall comply with all lawful requirements of any governmental authority regarding the System, whether now existing or subsequently enacted, whether foreseen or unforeseen or whether involving any change in governmental policy or requiring structural, operational and other changes to the System, irrespective of the cost of making the same. Section 8.4. Inspection of System and Borrower's Books and Records. The Authority, the Trustee and their duly authorized representatives and agents shall have such reasonable rights of access to the System as may be necessary to determine whether the Borrower is in compliance with the requirements of this Agreement and shall have the right at all reasonable times and upon reasonable prior notice to the Borrower to examine and copy the books and records of the Borrower insofar as such books and records relate to the System. Section 8.5. Ownershil) of System. The Borrower shall not construct, reconstruct or install any part of the System on lands, unless title to or perpetual easements over such land, in either case sufficient for the purposes of the Borrower, is owned or can be acquired by the Borrower, or unless such part of the System is lawfully located in a public street or highway or is a main, conduit, pipeline, main connection or facility located on land in which a right or interest less than a fee simple or perpetual -22- easement has been acquired and such lesser right or interest has been approved by written Opinion of Counsel to the Borrower as sufficient for the purposes of the Borrower. Section 8.6. Sale or Encumbrance. No part of the System shall be sold, exchanged, leased, mortgaged, encumbered or otherwise disposed of unless the proceeds thereof are sufficient to pay the Local Bond Prepayment Price and are used to prepay the Local Bond under Article VII; provided, however, that the Borrower may grant easements, licenses or permits across, over or under parts of the System for streets, roads and utilities as will not adversely affect the use of the System, and provided further, that upon compliance with the provisions of this Section the Borrower may sell or otherwise dispose of any property constituting a part of the System that (i) is either no longer needed or useful therefor or is replaced from the proceeds of such disposition and any other necessary money with property serving the same or similar function, or (ii) would not materially adversely affect the revenue generating capabilities of the System. No such property shall be sold or otherwise disposed of unless there is filed with the Trustee a certificate of the Borrower, signed by an Authorized Representative, stating that (i) such property is no longer needed or useful in the operation of the Systern (and, if the proceeds to be received for such property shall exceed $25,000, there shall also be filed with the Borrower and the Trustee a certificate of the Consulting Engineer stating that such property is no longer needed or useful in the operation of the System) or that such property will be replaced from the proceeds of the disposition and any other necessary money with property serving the same or similar function, or (ii) that such sale or disposition would not materially adversely affect the Revenue generating capabilities of the System. Any proceeds to be received from such sale or disposition not used to replace such property shall be applied first to cure any default that may exist in the payment of the principal of or interest on the Local Bond or any amount due under this Agreement, and then shall be applied to the prepayment of the Local Bond pursuant to Article VII hereof, and any proceeds of any lease shall be included by the Borrower as a part of Revenues. Section 8.7. Collection of Revenues. The Borrower shall use its best efforts to collect all rates, fees and other charges due to it, including, without limitation, by perfecting liens on premises served by the System for the amount of all delinquent rates, fees and other charges where such action is permitted by law. The Borrower shall, to the full extent permitted by law, discontinue and shut off, or cause to be discontinued and shut off, services and facilities of the System, and use its best efforts to cause to be shut off water service furnished otherwise than through the System, to customers of the System who are delinquent beyond any customary grace periods in the payment of rates, fees and other charges due to the Borrower. -23- Section 8.8. No Free Service. The Borrower shall not permit connections with or the use of the System, or furnish any services afforded by the System, without making a charge therefor based on the Borrower's uniform schedule of rates, fees and charges. Section 8.9. No Comi3eting Service. The Borrower shall not provide, grant any franchise to provide or give consent for anyone else to provide, any services that would compete with the System. Section 8.10. Mandatory Connection. The Borrower shall adopt and enforce rules and regulations, consistent with applicable laws, requiring the owner, tenant or occupant of each lot or parcel of land served or that may reasonably be served by the System and upon which lot or parcel a building shall have been constructed for residential, commercial or industrial use, to connect such building to the System. Section 8.11. Lawful Charges. The Borrower shall pay when due all taxes, fees, assessments, levies and other governmental charges of any kind whatsoever (collectively, "Governmental Charges") that are (i) assessed, levied or imposed against the System or the Borrower's interest therein, or (ii) incurred in the operation, maintenance, use and occupancy of the System. The Borrower shall pay or cause to be discharged, or shall make adequate provision to pay or discharge, all lawful claims and demands for labor, materials, supplies or other objects that, if unpaid, might by law become a lien upon the System or any part thereof or the Revenues (collectively, "Mechanics' Charges"). The Borrower, however, after giving the Authority and the Trustee ten days' notice of its intention to do so, at its own expense and in its own name, may contest in good faith any Governmental Charges or Mechanics' Charges. In the event of such a contest, the Borrower may permit the same to remain unpaid during the period of the contest and any subsequent appeal unless, in the reasonable opinion of the Authority or the Trustee, such action may impair the lien on Revenues granted by this Agreement, in which event such Governmental Charges or Mechanics' Charges promptly shall be satisfied or secured by posting with the Trustee or an appropriate court a bond in form and amount satisfactory to the Trustee. Upon request, the Borrower shall furnish to the Trustee proof of payment of all Governmental Charges and the mechanics' Charges required to be paid by the Borrower under this Agreement. -24- ARTICLE IX INSURANCE, DAKAGE AND DESTRUCTION Section 9.1. Insurance. Unless the Authority otherwise agrees in writing, the Borrower continuously shall maintain or cause to be maintained insurance against such risks as are customarily insured against by public bodies operating systems similar in size and character to the System, including without limitation: (a) Insurance in the amount of the full replacement cost of the insurable portions of the System against loss or damage by fire and lightning, with broad form extended coverage endorsements, covering damage by windstorm, explosion, aircraft, smoke, sprinkler leakage, vandalism, malicious mischief and such other risks as are normally covered by such endorsements (limited only as may be provided in the standard form of such endorsements at the time in use in Virginia), provided that during the construction of the Project, the Borrower may provide or cause to be provided, in lieu of the insurance in the amount of the full replacement cost of the Project, builders' risk or similar types of insurance in the amount of the full replacernent cost thereof. The determination of replacement cost shall be made by a recognized appraiser or insurer selected by the Borrower and acceptable to the Trustee. (b) Comprehensive general liability insurance with a combined single limit of $1,000,000 per year against liability for bodily injury, including death resulting therefrom, and for damage to property, including loss of use thereof, arising out of the ownership, maintenance, operation or use of the System. (c) Unless the Borrower qualifies as a self-insurer under the laws of Virginia, worker's compensation insurance. Neither the Authority nor the Trustee shall have any responsibility or obligation with respect to (i) the procurement or maintenance of insurance or the amounts or the provisions with respect to policies of insurance, or (ii) the application of the proceeds of insurance. Upon the written request of the Authority or the Trustee, the Borrower shall provide a certificate or certificates of the respective insurers evidencing the fact that the insurance required by this Section is in force and effect. Section 9.2. Requirements of Policies. All insurance required by Section 9.1 shall be maintained with generally recognized, responsible insurance companies selected by the Borrower and reasonably acceptable to the Authority. Such insurance may be written with deductible amounts comparable to those on similar policies carried by other utility systems of like size and character to the System. If any such insurance is not -25- maintained with an insurer licensed to do business in Virginia or placed pursuant to the requirements of the Virginia Surplus Lines Insurance Law (Chapter 48, Title 38.2, Code of Virginia of 1950, as amended) or any successor provision of law, the Borrower shall provide evidence reasonably satisfactory to the Authority that such insurance is enforceable under the laws of the Commonwealth of Virginia. In lieu of insurance written by commercial insurance companies, the Borrower may maintain a program of self insurance or participate in group risk financing programs, including without limitation sponsored insurance programs, risk pools, risk retention groups, purchasing groups and captive insurance companies, and in state or federal insurance programs; provided, however, that the Borrower shall obtain and maintain on file a favorable written opinion, in form and substance satisfactory to the Authority, of either the Department of Risk Management of the Commonwealth or aqualified independent insurance consultant that such alternative is reasonably acceptable under all the circumstances. Section 9.3. Notice of Damage, Destruction and Condemnation. In the case of (i) any damage to or destruction of any material part of the System, (ii) a taking of all or any part of the System or any right therein under the exercise of the power of eminent domain, (iii) any loss of the System because of failure of title or (iv) the commencement of any proceedings or negotiations that might result in such a taking or loss, the Borrower shall give prompt notice thereof to the Authority and the Trustee describing generally the nature and extent of such damage, destruction, taking, loss, proceedings or negotiations. Section 9.4. Damage and Destruction. If all or any part of the System is destroyed or damaged by fire or other casualty, and the Borrower shall not have exercised its option, if such option is available, to redeem the Local Bond pursuant to Article VII, the Borrower shall restore promptly the property damaged or destroyed to substantially the same condition as before such damage or destruction, with such alterations and additions as the Borrower may determine and that will not impair the capacity or character of the System for the purpose for which it then is being used or is intended to be used. The Borrower may apply so much as may be necessary of the Net Proceeds of insurance received on account of any such damage or destruction to payment of the cost of such restoration, either on completion or as the work progresses. If such Net Proceeds are not sufficient to pay in full the cost of such restoration, the Borrower shall pay so much of the cost as may be in excess of such Net Proceeds. Any balance of such Net Proceeds remaining after payment of the cost of such restoration shall promptly be applied to prepayment of the Local Bond pursuant to Article VII. -26- Section 9.5. Condemnation and Loss of Title. If title to or the temporary use of all or any part of the System shall be taken under the exercise of the power of eminent domain or lost because of failure of title, and the Borrower shall not have exercised its option, if such option is available, to redeem the Local Bond pursuant to Article VII, the Borrower shall cause the Net Proceeds from any such condemnation award or from title insurance to be applied to the restoration of the System to substantially its condition before the exercise of such power of eminent domain or failure of title. If such Net Proceeds are not sufficient to pay in full the cost of such restoration, the Borrower shall pay so much of the cost as may be in excess of such Net Proceeds. Any balance of such Net Proceeds remaining after payment of the cost of such restoration shall promptly be applied to the prepayment of the Local Bond pursuant to Article VII. ARTICLE X SPECIAL COVENANTS Section 10.1. Arbitrage Covenant. The Borrower shall not take or approve any action, investment or use of Local Bond Proceeds that would cause the Authority Bonds to be "arbitrage bonds" within the meaning of the Code and the regulations thereunder. Section 10.2. Maintenance of Existence. The Borrower shall maintain its existence as a political subdivision of the Commonwealth of Virginia and, without consent of the Authority and the Trustee, shall not dissolve or otherwise dispose of all or substantially all of its assets or consolidate or merge with or into another entity. Notwithstanding the foregoing, the Borrower may consolidate or merge with or into, or sell or otherwise transfer all or substantially all of its assets to, a political subdivision of the Commonwealth of Virginia, and the Borrower thereafter may dissolve, if (i) the surviving, resulting or transferee political subdivision, if other than the Borrower, assumes, in written form acceptable to the Authority and the Trustee, all of the obligations of the Borrower contained in the Local Bond and this Agreement, and there is furnished to the Authority and the Trustee an Opinion of Counsel acceptable to the Trustee subject to customary exceptions and qualifications to the effect that such assumption constitutes the legal, valid and binding obligation of the surviving, resulting or transferee political subdivision enforceable against it in accordance with its terms, and (ii) the Borrower shall have delivered to the Authority and the Trustee written evidence from the Rating Agency that the consolidation or merger or the sale or transfer will not adversely affect the rating then assigned by the Rating Agency to the Authority Bonds. -27- Section 10.3. Financial Rec ements. The Borrower shall maintain proper books of record and account in which proper entries shall be made in accordance with generally accepted accounting principles, consistently applied, of all its business and affairs related to the System. The Borrower shall have an annual audit of the financial condition of the Borrower (and at the reasonable request of the Authority, of the System) made by an independent certified public accountant and, within 120 days after the end of each of its Fiscal Years, shall furnish to the Authority and the Trustee copies of the report of such accountant, including statements in reasonable detail, certified by such accountant, reflecting the financial position of the Borrower as of the end of such Fiscal Year and the results of the operations of the Borrower and changes in the financial position of its funds for the Fiscal Year. The Borrower shall also furnish to the Authority and the Trustee a certificate of such accountant to the effect that during the course of such accountant's regular examination of the financial condition of the Borrower nothing came to such accountant's attention that would const'tute an Event of Default or a Default. Section 10.4. Certificate as to No Default. Within 120 days after the close of each of the Borrower's Fiscal Years the Borrower shall deliver to the Authority and the Trustee a certificate signed by an Authorized Representative stating that, during such year and as of the date of such certificate, no event or condition has happened or existed, or is happening or existing, that constitutes an Event of Default or a Default, or, if such an event or condition has happened or existed, or is happening or existing, specifying the nature and period of such event or condition and what action the Borrower has taken, is taking or proposes to take with respect thereto. Section 10.5. Additional Indebtedness. The Borrower shall not incur any indebtedness or issue any bonds, notes or other evidences of indebtedness secured by a pledge of Revenues, except Subordinate Bonds or Parity Bonds. Section 10.6. Parity Bonds. The Borrower may issue bonds, notes or other evidences of indebtedness ("Parity Bonds") ranking on parity with the Local Bond with respect to the pledge of Revenues for the purpose of (i) paying Project Costs to complete the Project; (ii) paying the cost of extensions, replacements, equipment or betterments and of any property, rights or easements deemed by the Borrower to be necessary, useful or convenient for the System, or (iii) for the purpose of refunding the Current Parity Indebtedness, or any Parity Bonds, provided in each case the following conditions are satisfied. Before any Parity Bonds are issued or delivered, the Borrower shall deliver to the Authority and the Trustee the following: (a) Certified copies of all resolutions and ordinances of the Borrower authorizing the issuance of the Parity Bonds. -28- (b) A certificate of an appropriate official of the Borrower setting forth the purposes for which the Parity Bonds are to be issued and the manner in which the proceeds from the issuance and sale of the Parity Bonds will be applied. (c) If the Parity Bonds are authorized for any purpose other than the refunding of the Current Parity Indebtedness or Parity Bonds, a certificate, in form and substance satisfactory to the Authority, of the Consulting Engineer to the effect that in the opinion of the Consulting Engineer (i) the improvements or property to which the proceeds from the issuance of the Parity Bonds are to be applied will be a part of the System; (ii) the funds available to the Borrower from the issuance of the Parity Bonds and other specified sources will be sufficient to pay the estimated costs of such improvements or property; (iii) the period of time which will be required to complete such improvements or property; and (iv) (A) such improvements or property are necessary to complete the Project, or (B) the failure to make such improvements or acquire such property will result in an interruption or reduction of Revenues, or (C) during the first two Fiscal Years following the completion of the improvements or the acquisition of the property, the projected Net Revenues Available for Debt Service will satisfy the rate covenant made by the Borrower in Section 5.1. In providing this certificate, the Consulting Engineer may take into consideration future System rate increases, provided that such rate increases have been duly approved by the governing body of the Borrower and any other person and entity required to give approval for the rate increase to become effective. In addition, the Consulting Engineer may take into consideration additional future revenues of the System to be derived under then existing contractual agreements entered into by the Borrower and from reasonable estimates of growth in the customer base of the Borrower. (d) An opinion of Bond Counsel to the Authority subject to customary exceptions and qualifications stating that the terms and provisions of the resolution authorizing the issuance of the Parity Bonds conform with the requirements of this Agreement, that the certificates and documents delivered to the Trustee and the Authority constitute compliance with the provisions of this Section and that the issuance of the Parity Bonds will not adversely affect the tax-exempt status of the Authority Bonds. Section 10.7. Further Assurances. The Borrower shall to the full extent permitted by law pass, make, do, execute, acknowledge and deliver such further resolutions, acts, deeds, conveyances, assignments, transfers and assurances as may be necessary or desirable for the better assuring, conveying, granting, assigning and confirming the rights, Revenues and other funds pledged or assigned by this Agreement or as may be required to carry out the purposes of this Agreement. The Borrower shall at all times, to the full extent permitted by law, defend, preserve and protect the -29- pledge oE the Revenues and other Eunds pledged under this Agreement and all rights of the Authority and the Trustee under this Agreement against all claims and demands of all persons. Section 10.8. Other Indebtedness. The Borrower agrees to pay when due all amounts required by any Subordinate Bonds and Parity Bonds and to perform all oE its obligations in connection therewith. Section 10.9. Assigriment by Borrower. The Borrower may not assign its rights under this Agreement without the prior written consent oE the Authority and the Trustee. If the Borrower desires to assign its rights under this Agreement to another local government, as defined by the Act, the Borrower shall give notice oE such Eact to the Authority and the Trustee and shall furnish to the Authority and the Trustee written evidence from the Rating Agency that the proposed assignment will not adversely afeect the rating then being assigned by the Rating Agency to the Authority Bonds. If the Authority and the Trustee consent to the proposed assignment, which they may not do without the written evidence from the Rating Agency referred to above, the Borrower may proceed with the proposed assignment, but such assignment shall not become effective until the Authority and the Trustee are furnished: (i) an assumption agreement in form and substance satiseactory to the Authority and the Trustee by which the assignee agrees to assume all of the obligations of the Borrower under the Local Bond and this Agreement; (ii) an opinion of Counsel to the assignee, subject to customary exceptions and qualifications, that the assumption agreement, the Local Bond and this Agreement constitute legal, valid and binding obligations of the assignee enforceable against the assignee in accordance with their terms and that the assignment and assumption complies in all respects with the provisions oE this Agreement; and (iii) an Opinion of Bond Counsel to the Authority, subject to customary exceptions and qualifications, that the assignment oE the rights and the assumption of the obligations under the Local Bond and this Agreement will not adversely affect the tax-exempt status of the Authority Bonds. Notwithstanding the foregoing, the assignment of the rights of the Borrower under the Local Bond and this Agreement or the assumption of the obligations thereunder by the assignee shall in no way be construed as releasing the obligations oE the Borrower. Section 10.10. Purchase of Authority Bonds. The Borrower agrees that it will not pursuant to any formal or informal arrangement purchase Authority Bonds in an amount related to the amount of the Local Bond. Section 10.11. Use of Local Bond Proceeds. The Borrower shall not use or permit the use of the Local Bond proceeds in any manner which would result in (i) 10% or more of such proceeds being considered as having been used directly or indirectly in any trade or business carried on by any person other than a governmental unit as provided in Section 141(b) of the Internal -30- Revenue Code of 1986, as amended (the "1986 Code"), (ii) 5% or more of such proceeds being considered as having been used directly or indirectly to make or finance loans to any person other than a governmental unit as provided in Section 141(c) of the 1986 Code, or (iii) the Local Bond being deemed to be a "private activity bond" in any other manner provided for under Section 141 of the 1986 Code. ARTICLE XI DEFAULTS AND RF-MEDIES Section 11.1. Events of Default. Each of the following events shall be an "Event of Default" hereunder: (a) Failure by Borrower to pay any Monthly Finance Payment, Additional Payment or other payment required to be paid under the Local Bond or this Agreement on or before the date on which such payment is due and payable, without regard to any payments made under any letter of credit or other credit facility securing the Local Bond; (b) The failure of the Borrower to perform or observe any of the other covenants, agreements or conditions of the Local Bond or this Agreement and the continuation of such failure for a period of thirty (30) days after the Authority or the Trustee gives the Borrower written notice specifying such failure and requesting that it be cured, unless the Authority and the Trustee shall agree in writing to an extension of such time prior to its expiration; provided, however, if the failure stated in the notice is correctable but cannot be corrected within the applicable period, the Authority and the Trustee shall not unreasonably withhold their consent to an extensicn of such time if corrective action is instituted by Borrower within the applicable period and diligently pursued until the Default is corrected; (c) Any warranty, representation or other statement by or on behalf of Borrower contained in this Agreement or in any instrument furnished in compliance with or in reference to this Agreement or in connection with the issuance and sale of the Local Bond is false or misleading in any material respect; (d) The occurrence of a default by the Borrower under the terms of any Subordinate Bonds, Parity Bonds or any other bonded indebtedness with which the Local Bond is issued on a parity basis and which is secured by a pledge of the Revenues and the failure to cure such default or obtain the waiver thereof within any period of time permitted thereunder; (e) An order or decree shall be entered, with the consent or acquiescence of the Borrower, appointing a receiver or receivers of the System or any part thereof or of the Revenues thereof, or if such order or decree, having been entered without -31- the consent or acquiescence of the Borrower, shall not be vacated, discharged, or stayed on appeal within sixty days after the entry thereof; (f) Any proceeding shall be instituted, with the consent or acquiescence of the Borrower, for the purpose of effecting a composition between the Borrower and its creditors or for the purpose of adjusting the claims of such creditors, pursuant to any federal or state statute now or hereafter enacted, if the claims of such creditors are under any circumstances payable from the Revenues of the System; or (g) Any bankruptcy, insolvency or similar proceeding shall have been commenced by or against the Borrower under any federal or state bankruptcy or insolvency law now or hereafter in effect, and, if instituted against the Borrower, shall not have been dismissed within sixty days from the date of filing. Section 11.2. Notice of Default. The Borrower agrees to give the Trustee, the Authority and, if applicable, the Escrow Agent prompt written notice of the entry of any order or decree referred to in Section ll.l(e) against the Borrower or of the occurrence oE any other event or condition that constitutes a Default or an Event of Default immediately upon becoming aware of the existence thereoe. Section 11.3. Remedies on Default. Whenever any Event of Default referred to in Section 11.1 shall have happened and be continuing, the Authority or the Trustee shall, in addition to any other remedies provided herein or by law, have the right, at its or their option without any further demand or notice, to take one or both of the following remedial steps: (a) Declare all payments due or to become due on the Local Bond and under this Agreement to be immediately due and payable, and upon notice to Borrower the same shall become immediately due and payable by Borrower without further notice or demand; and (b) Take whatever other action at law or in equity may appear necessary or desirable to collect the payments then due and thereafter to become due on the Local Bond and this Agreement or to enforce any other of the Trustee's or the Authority's rights under this Agreement. Section 11.4. Delay and Waiver. No delay or omission to exercise any right or power accruing upon any Default or Event of Default shall impair any such right or power or shall be construed to be a waiver of any such Default or Event of Default or acquiescence therein, and every such right and power may be exercised from time to time and as often as may be deemed expedient. No waiver of any Default or Event of Default under -32- this Agreement shall extend to or shall affect any subsequent Default or Event of Default or shall impair any rights or remedies consequent thereto. ARTICLE XII MISCELLANEOUS Section 12.1. Successors and Assigns. This Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. Section 12.2. Amendments. The Authority and the Borrower, with the written consent of the Trustee, shall have the right to amend from time to time any of the terms and conditions of this Agreement, provided that all amendments shall be in writing and shall be signed by or on behalf of the Authority and the Borrower. Section 12.3. Limitation of Borrower's Liability. Notwithstanding anything in the Local Bond or this Agreement to the contrary, the obligations of the Borrower are not general obligations of the Borrrower, but are limited obligations payable solely from the Revenues which are specifically pledged for such purpose. Neither the Local Bond nor this Agreement shall be deemed to create or constitute a debt or a pledge of the faith and credit of the Borrower and the Borrower shall not be obligated to pay the principal of or premium, if any, or interest on the Local Bond or other costs incident thereto except from the Revenues and other funds pledged therefor. In the absence of fraud or misconduct, no present or future director, official, officer, employee or agent of the Borrower shall be liable personally in respect of this Agreement or the Local Bond or for any other action taken by such individual pursuant to or in connection with the financing provided for in this Agreement or the Local Bond. Section 12.4. Apr)licable Law. This Agreement shall be governed by the applicable laws of Virginia. Section 12.5. Severability. If any clause, provision or section of this Agreement shall be held illegal or invalid by any court, the illegality or invalidity of such clause, provision or Section shall not affect the remainder of this Agreement, which shall be construed and enforced as if such illegal or invalid clause, provision or section had not been contained in this Agreement. If any agreement or obligation contained in this Agreement is held to be in violation of law, then such agreement or obligation shall be deemed to be the agreement or obligation of the Authority and the Borrower, as the case may be, only to the extent permitted by law. Section 12.6. Notices. Unless otherwise provided for herein, all demands, notices, approvals, consents, requests, opinions and other communications under the Local Bond or this -33- Agreement shall be in writing and shall be deemed to have been given when delivered in person or mailed by first class registered or certified mail, postage prepaid, addressed as follows: Authority: Virginia Resources Authority P. 0. Box 1300 Richmond, VA 23210 Attention: Executive Director Trustee: Crestar Bank P. 0. Box 26665 Richmond, VA 23261 Attention: Corporate Trust Department Escrow Agent: Attention: Borrower: City of Virginia Beach Municipal Center Virginia Beach, VA 23456 Attention: Assistant City Manager- Administration A duplicate copy of each demand, notice, approval, consent, request, opinion or other communication given by any party named in this Section shall also be given to each of the other parties named. The Authority, the Trustee and the Borrower may designate, by notice given hereunder, any further or different addresses to which subsequent demands, notices, approvals, consents, requests, opinions or other communications shall be sent or persons to whose attention the same shall be directed. Section 12.7. Right to Cure Default. If the Borrower shall fail to make any payment or to perform any act required by it under the Local Bond or this Agreement, the Authority or the Trustee, without prior notice to or demand upon the Borrower and without waiving or releasing any obligation or default, may (but shall be under no obligation to) make such payment or perform such act. All amounts so paid by the Authority or the Trustee and all costs, fees and expenses so incurred shall be payable by the Borrower as an additional obligation under this Agreement, together with interest thereon at the Crestar Prime Rate until paid. The Borrower's obligation under this Section shall survive the payment of the Local Bond. Section 12.8. Headings. The headings of the several articles and sections of this Agreement are inserted for convenience only and do not comprise a part of this Agreement. Section 12.9. Term of Agreement. This Agreement shall be effective upon its execution and delivery, provided that the Local Bond previously or simultaneously shall have been executed and -34- delivered. Except as otherwise specified, the Borrower's obligations under the Local Bond and this Agreement shall expire upon payment in full of the Local Bond and all other amounts payable by the Borrower under this Agreement. Section 12.10. . This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which together shall constitute but one and the same instrument. WITNESS the following signatures, all duly authorized. VIRGINIA RESOURCES AUTHORITY By Executive Director CITY OF VIRGINIA BEACH, VIRGINIA By Its -35- The Escrow Agent, by the execution hereof, accepts the duties imposed on it by this Agreement. , Escrow Agent By Its -36- Exhibit B CITY OF VIRGINIA BEACH, VIRGINIA PROJECT LISTING FOR VIRGINIA RESOURCE AUTHORITY PROGRAM FY 1987-1988 Revenue Bonds: Water Utility Projects: 5-025 Alanton -51% Type $ 1,848,250 5-026 Bellamy Manor - 51% Type 349,700 5-029 Linkhorn Point - 51% Type 137,250 5-030 River Road - 51% Type 182,250 5-031 Shorehaven - 51% Type 266,800 5-033 weaverville - 51% Type 129,450 Sewer Utility Projects: 6-935 Broad Bay Colony 1,369,300 6-945 Larkspur 1,020,000 6-952 Lakeside Drive/Poplar Point Road 197,000 FY 1988-1989 Revenue Bonds: Water Utility Projects: 5-029 Linkhorn Point - 51% Type 70,000 5-039 Broad Bay Colony - 51% Type 260,000 5-713 Landstown Suction 575,000 5-836 Landstown Yard Improvements 450,000 5-938 Kempsville Suction - Phase I 230,000 5-939 Kempsville Suction - Phase II 110,000 5-966 Atlantic Avenue Improvements 480,000 5-968 Control Center Modernization 825,000 5-977 Kempsville Pump Station Modifications 270,000 Sewer Utility Projects: 6-828 Landstown Yard Improvements 450,000 6-925 Atlantic Avenue Improvements 426,000 6-943 Linkhorn Point 830,000 6-945 Larkspur 445,000 6-980 River Road 815,000 6-981 Shorehaven 1,150,000 6-982 Dwyer Road 230,000 6-930 Lynnhaven Acres 878,000 Total Water and Sewer Utility Projects $13,994,000 04/12/89:JPM/VRA/PROJLIST EXHIBIT E REQUISITION FOR DISBURSE14ENT FROM ESCROW FUND Requisition No. Date: Attention: This requisition is submitted in connection with the Financing Agreement, dated as of May 1, 1989 ("Financing Agreement") between the Virginia Resources Authority and the City of Virginia Beach, Virginia ("Borrower"). Unless otherwise defined in this Requisition, all capitalized terms used herein shall have the meaning set forth in Article I of the Financing Agreement. The undersigned Authorized Representative of the Borrower hereby requests payment of the following amounts from the Escrow Fund created under the Financing Agreement. Payee: Address: Amount to be Paid: Purpose (in reasonable detail) for which obligation(s) to be paid were incurred: Attached hereto is an invoice (or invoices) relating to the items for which payment is requested. The undersigned certifies that (a) the amounts requested by this Requisition will be applied solely and exclusively to the payment, or the reimbursement of the Borrower for the payment, of Project Costs, (b) any materials, supplies or equipment covered by this Requisition are not subject to any lien or security interest or such lien or security interest will be released upon payment of the Requisition, (c) this Requisition contains no items representing payment on account of any retained percentage entitled to be retained at this date, and (d) all permits, licenses, registrations, certificates, authorizations and approvals required to have been obtained as of this date have been obtained, and, to the best of my knowledge, there is no reason why any future required governmental permits or approvals cannot be obtained. The attached Certificate of the Consulting Engineer must be completed. Authorized Representative of Borrower CERTIFICATE OF CONSULTING ENGINEER The undersigned Consulting Engineer for the Borrower hereby certifies that (a) insofar as the amounts covered by this Requisition include payments for labor or to contractors, builders or materialmen, such work was actually performed or such materials, supplies or equipment were actually furnished to or installed in the Project, (b) insofar as the amounts covered by the Requisition include payments for land or easements, rights or interests in or relating to lands, such lands, easements, rights or interests are being acquired and are necessary or convenient for the construction of the Project, and (c) all permits, licenses, registrations, certificates, authorizations and approvals required to have been obtained as of this date have been obtained, and, to the best of my knowledge, there is no reason why any future required governmental permits or approvals cannot be obtained. Date: Consulting Engineer EXHIBIT F CURRENT EXISTING PARITY INDEBTEDNESS Water and Sewer Revenue Bonds (P. A. Corp.), dated November 1, 1977, in the approximate outstanding principal balance of Water and Sewer Revenue Notes (P. A. Corp.), dated December 15, 1977, in the approximate outstanding principal balance of Drought Relief Revenue Bonds, dated February 1, 1978, in the approximate outstanding principal balance of $ Water and Sewer Revenue Notes (Kempsville Utilities), dated August 31, 1982, in the approximate outstanding principal balance of Water and Sewer Revenue Notes (County Utilities), dated August 31, 1982, in the approximate outstanding principal balance of - 14 - Item IV-F.3. RESOLUTIONS/ORDINANCES ITF14 # 31073 Upon motion by Vice Mayor Fentress, seconded by Councilman Sessoms, City Council ADOPTED, as REVISED*: Ordinance to AMEND and REORDAIN the Code of the City of Virginia Beach by ADDING Sections 2-195, 2-196, 2-197, 2-198, and 2-199 re the Capital Improvement Program. "Section 2-195 - for sub@mittal: "On or before the second regular meeting of the City Council in September of each year.." *Section 2-198 - for adoption: "...no later than the first regular meeting of the City Council in December of each year." Voting: 10-1 Council Members Voting Aye: Albert W. Balko, John A. Baum, Vice Mayor Robert E. Fentress, Harold Heischober, Barbara M. Henley, Reba S. McClanan, iliayor Meyera E. Oberndorf, Nancy K. Parker, John L. Perry and William D. Sessoms, Jr. Council Members Voting Nay: Jolin D. Moss Council Members Absent: None A ril 17 1 1 ?\N ORDINANCE TO AMEND AND REORDAIN 2 THE CODE OF THE CITY OF VIRGINIA 3 BEACII, VIRGINIA, BY ADDING SECTIONS 4 2-195, 2-196, 2-197, 2-198, AND 5 2-199 PERTAINING TO THE CAPITAL 6 IMPROVEMFNT PROGRAM 7 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF 8 VIRGINIA BEACH, VIRGINIA: 9 That the Code of the City of Virginia Beach, Virginia, 10 is hereby amended and reordained by adding Sections 2-195, 2-196, 11 2-197, 2-198, and 2-199, pertaining to the Capital Improvement 12 Program, and shall read as follows: 13 Section 2-195. Preparation of capital improvement program. 14 on or before the second regular meeting of the City i5 Council in September of each year, the City Manager shall prepare 16 and submit to the City Council a capital improvement program, 17 which shall include the City Manager's recormnendations and 18 estimates of the cost of proposed capital improvements and the 19 means of financing them, to be undertaken in the current fiscal 20 year and in a period not to exceed the next nine (9) years. 21 Section 2-196. Introduction of capital budget. 22 At the same time that the City Manager submits the 23 capital improvement program, the City Manager sball introduce and 24 recommend to the Council an appropriation ordinance, based upon 25 the current fiscal year of the capital improvement program, which 26 shall be the capital budget. The City Manager shall also 27 introduce at that same time any ordinance levying a new tax or 28 altering the rate on an existing tax and introduce any ordinance 29 for the authorization of bonds or any other ordinances required 30 for balancing the capital budget. In no event shall the 31 expenditures recommended by the City Manager in the capital 32 budget exceed the receipts estimated. 33 Section 2-197. Capital improvement program and capital budget- 34 public hearing. 35 The Council shall hold a public hearing on the capital 36 improvement program and the capital budget as submitted, at which 37 time any citizen of the city shall have the right to attend and 38 state his views thereon. 39 The Council shall cause a brief synopsis of the capital 40 improvement program and a descriptive notice of the proposed 41 capital budget to be published in a newspaper having general 42 circulation in the city, once a week for two successive weeks 43 prior to the date set for such hearing. The second publication 44 shall not be sooner than seven (7) days after the first 45 publication and the public hearing shall not be sooner than 46 seven (7) days after the second publication. 47 The publication shall include a statement that a copy 48 of the full text of the capital improvement program and capital 49 budget are on file and available for public inspection at the 50 City clerk's office and the City Manager's office. 51 The publication and notice shall be for informative and 52 fiscal planning purposes only. The Council may recess or adjourn 53 from day to day or time to time during such hearing or hearings. 54 After the public hearing, the Council may make such changes in 55 the capital improvement program and capital budget as it may 56 determine. 57 Section 2-198. Adoption. 58 (a) The capital improvement program and capital 59 budget shall be adopted by the vote of at least a majority of 60 all of the members of the Council no later than the first regular 61 meeting of the Cit7 Council in December of each year. In no 62 event shall the Council adopt a capital budget in which the 63 estimated expenditures exceed receipts, unless at the same time 64 it adopts measures to provide additional revenue estimated to be 65 sufficient to make up the difference. 2 66 (b) Adoption shall require consideration at two (2). 67 separate meetings, the second of which may not be sooner than 68 three (3) days after the first. 69 (c) The capital improvement program and capital 70 budget shall become effective upon adoption. However, in no 71 case shall preparation, publication and approval of the capital 72 improvement program be deemed to be an appropriation. 73 Section 2-199. Amendments - Capital improvement program; capital 74 budget. 75 (a) The City Council may amend the capital improvement 76 program and capital budget appropriation ordinance from time to 77 time to increase the aggregate amounts thereof, provide for 78 supplemental appropriations from available revenue, add or delete 79 projects and transfer funds between projects. 80 (b) Supplemental appropriations to the capital budget 81 shall be adopted by the vote of at least a majority of all of the 82 members of Council and shall require consideration at two (2) 83 separate meetings, the second of which may not be sooner than 84 three (3) days after the first. However, any such supplemental 85 appropriation which exceeds one percent of the total revenue 86 shown in the current fiscal year capital budget may only be 87 accomplished after providing a public hearing on the proposed 88 amendment. Notice shall be given by publishing a notice of a 89 meeting and public hearing once in a newspaper having general 90 circulation in the city, seven (7) days prior to such public 91 hearing and meeting. The notice shall state the Council's 92 intent to amend and include a brief synopsis of the proposed 93 amendment. 94 (c) Subject to any applicable restrictions of law or 95 restrictions of any bonds or bond issue, amendrnents which do not 96 require supplemental appropriations, but which involve a transfer 97 of funds between projects or additions or deletions of projects 98 or in the case of the capital improvement program an increase in 99 the aggregate amount thereof, may be made without requirement of 100 a public hearing by a majority of all of the members of City 3 101 Council at the same meeting at which such amendment is 102 introduced. Furthermore, subject to any applicable restrictions 103 of law or of any bonds or bond issue, the City manager is 104 authorized to transfer funds between projects in amounts not to 105 exceed $10,000. 106 Adopted by the Council of the City of Virginia Beach, 107 Virginia on the 17th day of Ai)ril 1989. 108 LLL/lmt/sam/emp 109 01/19/89 110 02/01/89 ill 03/17/89 112 03/20/89 113 04/13/89 114 CA-03124 115 \ordin\proposed\02-195etc.pro 4 - 15 - item IV-G. CONSENT AGENDA ITEM # 31074 Upon motion by Vice Mayor Fentress, seconded by Councilman Sessoms, @lity Council APPROVED in ONE MOTION Items 1, 5, 6, 7, 8, 9, 11, 12 and 13. Item IV-G.3 was DEFERRED INDEFINITELY. Items IV-G.2, 4, and 10 were pulled for a separate vote. Voting: 11-0 Council Members Voting Aye: Albert W. Balko, John A. Baum, Vice Mayor Robert E. Fentress, flarold Heischober, Barbara M. Henley, Reba S. ficclanan, John D. iqoss, Mayor tieyera E. Oberndorf, Nancy K. Parker, John L. Perry and Williar.-i D. Sessoms, Jr. Council Members Abstaining: Albert W. Balko VERBALLY ABSTAINED on Item IV-G.7 as he is retired from Chesapeake & Potomac Telephone Company Council Members Voting Nay: None Council Members Absent: None - 16 - Item IV-G.L CONSENT AC M A ITEM # 31075 Upon motion by Vice Mayor Fentress, seconded by Councilman Sessoms, City Council ADOPTED: Resolutions requesting the Virginia Department of Transportation to accept: Corrections to the revised road inventory (additional .16 lane miles to urban streets inventory and additional 4.36 lane miles to arterial streets inventory, both beginning July 1, 1989); AND, Additional streets (75.81 lane miles of urban streets and 5.82 lane miles of arterial streets, both beginning July 1, 1989); AND, To begin urban maintenance payments to the City of Virginia Beach based upon the established rate of the above revisions. Voting: 11-0 Council @lembers Voting Aye: Albert W. Balko, John A. Baum, Vice Mayor Robert E. Fentress, Harold Heischober, Barbara 14. Henley, Reba S. McClanan, John D. Moss, Mayor Meyera E. Oberndorf, Nancy K. Parker, John L. Perry and William D. Sessoms, Jr. Council flembers Voting Nay: iNone Council Members Absent: None A ril 17, 1989 RESOLUTION WHEREAS, the Virginia Department of Highways and Transportation requires a council resolution prior to accepting additional streets for urban maintenance payments; and WHEREAS, the attached streets have been constructed in accordance with standards established by the Virginia Department of Highways and Transportation; and WHEREAS, the City of Virginia Beach has accepted these streets and has agreed to maintain these streets; and WHEREAS, a representative from the Virginia Department of Highways and Transportation has inspected and approved these streets; now THEREFORE BE IT RESOLVED, that tbe Council of the City of Virginia Beach, Virginia does hereby request the Virginia Department of Highways and Transportation to accept these streets and to begin paying urban maintenance payments to the City of Virginia Beach based on the established rate. Adopted this 17 day of April 1989 CITY OF VIRGINIA BEACH, VIRGINIA By A BR V. WAT+/-S, JR. CITY MANAGER ATTEST @TH HODGES- SMITH CMC/AAE CLERK OF COUNCIL RESOLUTION WHEREAS, the Virginia Department of Transporation requires a council resolution prior to accepting deletions and corrections to the revised road inventory for urban maintenance payments; and WHEREAS, the attached streets have been constructed in accordance with standards established by the Virginia Department of Transportation; and WHEREAS, the city of Virginia Beach has accepted these streets and has agreed to maintain these streets; and WHEREAS, a representative from the Virginia Department of Transportation has inspected and approved these changes; now THEREFORE BE IT RESOLVED, that the Council of the City of Virginia Beach, Virginia does hereby request the Virginia Department of Transportation to accept these corrections and to begin paying urban maintenance payments to the city of Virginia Beach based upon the established rate. Adopted this 17 day of April 1989 CITY OF VIRGINIA BEACH By AUBRF,Y V. WATTS, JR. CITY MANAGER ATTEST ,RTJTH HODGES- SMITH CMC/AAE CLERK OF COUNCIL - 17 - Item IV-G.2. CONSENT AGENDA ITF14 # 31076 Upon motion by Councilman Perry, seconded by Councilman Heischober, City Council ADOPTED: Resolution protecting the fisheries resources and overall environmental quality of Lake Joyce. Voting: 9-2 Council Members Voting Aye: Albert W. Balko, John A. Baum, Vice Mayor Robert E. Fentress, Harold Heischober, Barbara M. Henley, Reba S. McClanan, Mayor Meyera E. Oberndorf, John L. Perry and William D. Sessoms, Jr. Council Members Voting Nay: John D. Moss and Nancy K. Parker Council Members Absent: None 1 A RESOLUTION PROTECTING THE FISHERIES 2 RESOURCES AND OVERALL ENVIRONMENTAL QUALITY 3 OF LAKE JOYCE 4 WHEREAS, the City of Virginia Beach is endowed with 5 numerous natural amenities including Lake Joyce; and 6 WHEREAS, the City is committed to ensuring a high 7 quality environment for the enjoyment and benefit of all citizens 8 and visitors through careful stewardship of its resources; and 9 WHEREAS, a balance of fish species is required for a 10 healthy lake ecosystem; and 11 WHEREAS, over-fishing of certain species can lead to an 12 imbalance of a lake's ecosystem and/or the decline of certain 13 fish populations. 14 15 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF 16 THE CITY OF VIRGINIA BEACH, VIRGINIA: 17 That in an effort to prevent over-fishing in Lake Joyce 18 and thereby protect its fisheries resources and overall 19 enviroriment quality, City Council encourages all persons fishing 20 in or from the shores of this lake to release and return all fish 21 caught or otherwise taken from its waters. 2 2 23 Adopted by the City Council of the City of Virginia 24 Beach, Virginia, on the 17 day of Ai)ril 1989. 25 KJC/dhh 26 04/11/89 27 CA-89-3262 28 LKJOYCE.RES - 18 - Ite.-n IV-G.3 CONSENT AGENDA ITF14 # 31077 Upon motion by Vice Mayor Fentress, seconded by Councilman Sessoms, City Council DEFERRED INDEFINITELY: Ordinance to AMEND and REORDAIN Article III of Chapter 30 of the Code of the City of Virginia Beach re Erosion and Sediment Control. Voting: 11-0 Council Members Voting Aye: Albert W. Balko, John A. Baum, Vice Mayor Robert E. Fentress, Harold Heischober, Barbara M. Henley, Reba S. McClanan, John D. @loss, Mayor Meyera E. Oberndorf, Nancy K. Parker, John L. Perry and William D. Sessoms, Jr. Council Members Voting Nay: None Council Members Absent: None April 17, 1989 - 19 - Item IV-G.4. CONSENT AGENDA ITFIQ # 31078 Upon motion by Councilman Baum, seconded by Councilman Balko, City Council ADOPrED: Ordinance authorizing acquisition of property in fee simple for right-of-way for left turn lane/bypass lane and incidental drainage on Seaboard Road at Foxfire Subdivision, either by agreement or condemnation. Voting: 7-4 Council @lembers Voting Aye: Albert W. Balko, John A. Baum, Vice @layor Robert E. Fentress, Harold Heischober, Reba S. McClanan, John L. Perry and William D. Sessoms, Jr. Council Members Voting Nay: Barbara M. Henley, John D. Moss, Mayor Meyera E. Oberndorf, and Nancy K. Parker Council Members Absent: None 1 AN ORDINANCE TO AUTHORIZE ACQUISITION OF 2 PROPERTY IN FEE SIMPLE FOR RIGHT OF WAY FOR 3 LEFT TURN LANE/BYPASS LANE AND INCIDENTAL 4 DRAINAGE ON SEABOARD ROAD AT FOXFIRE 5 SUBDIVISION, EITHER BY AGREEMENT OR 6 CONDEMNATION 7 8 WHEREAS, in the opinion of the Council of the City of 9 Virginia Beach, Virginia, a public necessity exists for the 10 construction of these important improvements to provide 11 transportation and for other public purposes for the preservation 12 of the safety, health, peace, good order, comfort, convenience, 13 and for the welfare of the people in the City of Virginia Beach: 14 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 15 VIRGINIA BEACH, VIRGINIA: 16 Section 1. That the City Attorney is hereby authorized and 17 directed to acquire by purchase or condemnation pursuant to 18 Sections 15.1-236, et seq., 15.1-898, 15.1-899, and Section 33.1- 19 89, et seq., Code of Virginia of 1950, as amended, all that 20 certain real property in fee simple, including temporary and 21 permanent easements of right of way as shown on the plans 22 entitled "LEFT TURN LAND/BY-PASS LANE AT FOXFIRE SUBDIVISION, 23 these plans being on file in the Office of Real Estate Department 24 of Public Works, Virginia Beach, Virginia. 25 Section 2. That the City Attorney is hereby authorized to 26 make or caused to be made on behalf of the City of Virginia 27 Beach, to the extent that funds are available, a reasonable offer 28 to the owners or persons having an interest in said lands, if 29 refused, the City Attorney is hereby authorized to institute 30 proceedings to condemn said property. 31 That an emergency is hereby declared to exist and this 32 ordinance shall be in force and effect from the date of its 33 adoption. 34 Adopted by the council of the City of Virginia Beach, 3 5 Virginia, on the 17 day of April 19 89 3 6 3 7 38 3 9 40 41 42 4 3 44 45 46 JAR/ih 47 DATE: 4/3/89 48 CA-3171 49 \ordin\noncode\seaboard.ord TO C" PPROVED - 20 - Ite@n IV-G.5. CONSENT AGENDA ITF21 # 31079 Upon motion by Vice Mayor Fentress, seconded by Councilman Sessoms, City Council ADOPTED: Ordinance authorizing the City Manager to apply for $25,000 from the Virginia Housing Partnership Fund Emergency Home Repair Grant Program for low and noderate income citizens. Voting: 11-0 Council Members Voting Aye: Albert W. Balko, John A. Baum, Vice Mayor Robert E. Fentress, Harold Heischober, Barbara M. Henley, Reba S. PicClanan, John D. Moss, Mayor t@leyera E. Oberndorf, Nancy K. Parker, John L. Perry and William D. Sessoms, Jr. Council Members Voting Nay: None Council 14embers Absent: None A ril 17 1989 ORDINANCE TO AUTHORIZE THE CITY MANAGER TO APPLY FOR $25,000 FROM THE VIRGINIA HOUSING PARTNERSHIP FUND EMERGENCY HOME REPAIR GRANT PROGRAM WHEREAS , t he C ommonw eal th of Vi rg in ia has es tab l ished the Virginia Housing Partnersbip Fund to encourage the improvement of housing opportunities for low-income Virginians; and WHEREAS, the Virginia Department of Housing and Community Development has announced the availability of and requested applications for funds for the Emergency Home Repair Grant Program; and WHEREAS, such funds can be used to provide grants for the benefit of low and moderate income residents of Virginia Beach; and WHEREAS, such grants require a local match that will be provided by CDBG funds, weatherization grants, private funds and labor; and WHEREAS, the City of Virginia Beach agrees to administer a program to provide such grants to eligible residents in conformance with the regulations and guidelines of the State Department of Housing and Community Development; Now, therefore be it ordained that the Council of the City of Virginia Beach authorizes and directs the City Manager to apply for $25,000 for tbe purpose of making grants to eligible citizens of Virginia Beach under the Emergency Home Repair Grant Program. 17 Adopted by the Council of the City of Virginia Beach on tbe ----- day of April 1 1989. APPROVED AS TO CONTKNY: APPROVED AS TO FORM: r City A t rney Community Development - 21 - Iter@i IV-G.6. CONSENT AGENDA ITENI # 31080 Upon motion by Vice Mayor Fentress, seconded by Councilman Sessoms, City Council APPROVED: COST PARTICIPATION AGREEMENTS: IqALLY'S DAY CARE $10,920.00 Sewer (CIP 6-316) ALEXANDRIA SECTION II $47,000.00 Water (CIP 5-306) Voting: 11-0 Council Members Voting Aye: Albert W. Balko, John A. Baum, Vice iqayor Robert E. Fentress, Harold fleischober, Barbara M. Henley, Reba S. McClanan, John D. Moss, Mayor Meyera E. Oberndorf, Nancy K. Parker, John L. Perry and William D. Sessoms, Jr. Council Members Voting Nay: None Council Members Absent: None AN ORDINANCE TO AUTHORIZE AND DIRECT THE CITY MANAGER TO EXECUTE COST PARTICIPATION AGREEMENT WHEREAS, Mike Bell Building Corporation is developing certain property in the Kempsville Borough in accordance with the terms and conditions of city ordinances, and WHEREAS, in order for the developer to provide sewer service to this project, it is necessary for the developer to construct certain sewer facilities, and WHEREAS, the city has requested that the developer lower the sewer main in order to extend sewer service to the surrounding area, and WHEREAS, such construction is beyond the scope of the developer's project but will provide for future city needs and will prevent the city from incurring additional costs at a later date, and WHEREAS, the city desires to enter into a cost participation agreement with the city's share of the costs at $10,920 with such costs to be charged to capital project 6-316 Various sewer Projects. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA that the City Manager is hereby authorized and directed to enter into a cost participation agreement with Mike Bell Building Corporation for construction of certain sewer facilities. Said proposed agreement is hereby approved and attached. This ordinance shall be effective from the date of its adoption. Adopted by the Council of the City of Virginia Beach, Virginia on the 17 day of April 1 19 89. DALE C GRAVITY SANITARY SWE, R DEEP@@D BY AGB=M,NT DOVE IGYL TON WALLY'S DAY CARE SITE WALLY'S DAY CARE S @ R COST PARTICIPATION scALE ill = 16ool Fll-31 3/9/89 MHR:ps WALLY'S DAY CARE SEWER COST PARTICIPATION AGREEMENT COST BENEFIT ANALYSIS Sewer Cost per agreement $ 10,920.00 Alternative #1 - Relay gravity sanitary sewer main at maximum depth and minimum slope. Remove B" PVC 400' @ $5.00/L.F. $ 2,000.00 Install O" PVC 400' @ $33.00/L.F. 13,200.00 Install 2 -4' Dia. Manholes 18 V.F. Total @ $200/V.F. 3,600.00 Install 2 -Manhole Frames Cover $215/EA 430.00 Install Stone Aggregate 400' @ $5.00/L.F. 2,000.00 Replace Pavement 50' @ SIO.OO/L.F. 500.00 Total $ 21,730.00 Alternative 02 - New pumping reqtiired to serve area south of this site. Using the assumptions of 8% time value of money and 5% inflation in the cost of operating and maintaining a pumping station, and the pumping station would not be built for 5 years; the cost of operating the station for 30 years from today is: $150,522.18. Net Savings to City Minimum $ 21,730.00 - $10,920.00 = s 10,810.00 Maximum $150,522.18 - $10,920.00 = $139,602.le MHR:mc 3/10/B9 F 11-31 CITY OF VIRGI@IIA BEACtl DEPARTMENT Of-- PIJ[31. IC U] 11- I T I ES COST PARTICIPATIOIA AGREEIIIEfql (SEWER) THIS AGREEMENT, liade thi'3 _23 day of -br.uary- I'@09, by aricl -Ee between Mik-e-B-ell -B@l-di-ng Corpor-ati..on---.--- liere@irtafter referred to as "OwvieT and tlie CITY OF VIF?Gll,110 EIEOI.,H VIR(31NIO. hereinaftei- referred to as thE' '@City". WHEREAS, Ownei- is seized in fee 5imple c,f and Wt!EREAS, Owrier i@ desirot.is cif i;npro,/iyicl t@ie ProjE?ct iti a(:cordance witt) ttie tei-ms and conditicins of ttie ('ity u)idiT)@)ir-rs i@)d aciicP-s to :,Drifurm to 5aid ordinances; ayicj WHEREAS, in order for Owner to provicle se4@)Lr SR-r,,icE@ I;f) this Pro,iect, it is riecl-ssary fD, Owilef- to coristrLiFt ce-i tai,) seer facilitic--,s; avid WHEREAS, the Eii;y has reque,.,ted i.liat 7uch con5truction bF2 Q,-eatel- ill scope than is iil-ces@ary to provide @ervicl to tilis PF(),i(-,ct; anci WHEREAS, such coristruction is of valk'L Lo LI)L- LitY ill Plavidirig si?rvice to customers other than t[io@e witili@l the Pi-L)ject Iiinits" NOW, T[iEREI:DRE, in con5i(IL@ratin,, of tt@@ @ijt,ial pro,(ii@,e7, inci li(@riefits ac;c:rtjirig liereto, the parties aqyee ttl,3t: 1. Oner sliall constrlict a se-ei- s@,@,[;em (lilfeiriafter ttip- "S@,stp,!n") accc)rding to plans and SPLLificati,)ns appru,,cci bv tt,c@ f)LpartiTleflt Of PLiblic LJtilities, a copy of which is an filp witli ttie Dc,.partment. 2, The City s@iall ma@e castt payroent to owner in t[IF2 ainourit of $-, Ten Thousand Nine Hundred Twenty Dollars and No Cents aftei sliccessful completioll of ttip- Systpfn and acceptance therE.,Of by t@IP Citv ir@ aclortia,icp witti app,-Oved F)Icin@. I 3 The City E-,hall liave@ Llie riqlifi at any timl, to make, carincct. or permit the conriec:tion of any ottier s(@wei- facility to the Sy@teffi. (),iv stict, connt,ction may be at any point, @i,ici @lle City shal,] llavl t@le rlgtlt at all%' time to use tl)p System tg sp ,y vp pc?rs,),is tqi tli in @,,d wi tvio,-i L thr@ ject I i mi ts . 1, [Jpon succe5sf@il cc)mpltLio,i of tlie Sy@itpm ind accpptailce ttie,eof by ttic2 City, D@qner @i2rpby Eicjrees that tiie Syste,,i, inclucjing but not liff,ilucj tO Se.E?r con,iections, -,Lt@er flia i ri, , I a 1,3 , p i pe@ , and -i 1 1 c, ttict facilities, shall be cleemed dedicate?ci to ttie City ()f vi,-Giy)ia Beacli as of tl)r? d-3te of the City's writtl-ri a(-c:eptarre. tiiev-(@of. 5. Owner st@al I indep,nify ar,(J l,olci tl,@2 Citv fro(f) ayi@, d),(-i all liabili,ty if tqliatpver na tUT E? lr i -- i 110 OIA t of t, he desiqti, appi-oval, ctin,truction and/or iri,,tallation of tl,c? SyEtLfi. fri thr, Pvent a@iy claini is made agairist tlie City, eittiet- indelie,iclpiitly c), jointly iqii,h les@,P-e, or ptirchaser an account hereof, thc? L)tqviL, it its @olt@ cost shill clpfpncl tlie City against sucli claims. 6. This Agreemeiit shall intirp. tc., ttip I)etiF@fit of and tip tiiiidifi@) tlpdti the par-ties hereto aiid ttIE2ir T-e5pE'rti'ye t@eirs, @ucc-@@,,@ors i3nd a.@signs. 7. Upori executio@, of t@iis Agr,@emer@t, it shall be fec,)I-dP@d ty ttle City in ttie Clerk ',, Office of tlic Ci,-ckjit Coir t of Llie City of @Jirgirlia Beach, at Ownet-'s expense. 2 IN WITNIESS WHEREOP, Llie. pE)rtic@, tir@rlt@ (,,ecutL(J all(i sealpd this AgreemF?rit 3s of ttie day anci year I i,-st @lbov2 Ly it@ten. F.IT'@ OF VIRGINIA DET@CH. VIRGlhllt) ay, (Citv Mariager@ DATE ATIEST: City Clerl< gy nt T F I T -T. SEAL Secretary APPROVED AS CONTEIQTS: es APPROVED AS TO FORM: ty At Office CERTIFIED AS Tf) AVAILOBILITY DF FUt,[DS: Depart,nent of FiriaticeW-) SIAIE OF CITY OF N=NIA.-BEACH----.- 1, -Ch]-iatine-Daughtxy=Pc)pa__, a l@,)Lavy Pi-IL)IiF- ill aild IOT CiLv and State aforesaid, do herebv certify til@'t - DIvid--M.--Bell-,- ,,,d Janet S. Bell i rJ it ar,d 5ELFy cta, y , i esppl@t iv, l y1) f The Mi.ke Bell Conpany, Inc-, w@iose names a, p 5 i onlti t@ c) ttie vir i t i fig above bparirig date of 2/2 3,:k.@tot%,Ip(lcjed the somp [)Pffire ri)e ii, my City and State afore-slid. GiVe@, LiTlIJ2?- (ny hand thi@ 1909 diy @l- rly CommissioTi Expires STATE OF VIRGINIO CITY OF VIRGINIA BEAC:@i, to-wit: The foreg(jing instrument @ia5 ac@frio,,IE@dgpd [)E'fore me by Oubrey V. Watts, Jr - and Rut@i Hodges Snii tti, tl,E, (,i ty ManagF?r @ind Ci ty ClprP , r El@ SPLIC t i Ile I Y, 'If tilp C i t y of V i @ q i r) iLlea(-Il, clay of 1989. ['lo t a, ), PLIB 1 i C My Commissioii Expirps: CITY OF VIRGlklli) DEOC[I DEPARTI,iENT OF I'LIBI I 1-1 I 1 L I I I Fs COST PARIICIPAII(lii OCIFEErlEWT (SEWER@ TIIIS A13REEME[IT, Madc2 t@iis 23_ __ ri,3y of .FebrU@ry_, 1909, by and [)etween Mike Bell Building Corporatio,,n. te, ----- --- -- iefLrrpd tt) as "O.r,er and tl)t, I f Y OF VIRGII@110 13LAC:Fi, VIRGlhllA, liereinaftL,, efe, rr@d to as the "i-itv". WtiEREAS. Owner is seizf?d i,, fLe Lf - ------ -- Wally's Day Care 3nd WHEREAS, Owtipr is d@,il okj@, of ia,provi,ig tticL Pr,,jLct ir% ac( orcjance witFi the terms and coriditions of tlic City ardinilice@ and agrees to c on for m to @aid ordinance5; aiici WHEREAS, iii t)t-cier for 13wncr to prc,,,ide seve, @iE?I-vice t;n L@,is F'ro,icc-t, it is necessary for Ow"(@r to constrilct cerlii,i sewer fa@ilitie@; @lyltj WHEREAS, the City has requestld tt,,3t- @Lic@l coll@3tTL@LtiOll bf' (11 Cal;el- ill 5cope thari is necessary to provide sci-vi,-p f.o tl,i-, Pi-L).iC-ct; ;3ncJ WHEREAS, sucti construr-tioll i 5 0 f @a I Llt, Lo Ll,e C-itv in pi-c,viding 5ervice to cugtoml-rs cttier tliar, tho,3p Ll,e [@ruj(?ct liff,il@s; NOW, THEREFORE, in considc2raLio,, of tt,t? fftittial pi-,imises a,),j I)enefit@3 ac:cruing hereto, t[it? parties agree, t@taf,- 1. Owner- shall construct @l setier (IILrein@aftei- tlie "Sy@,t;em") ac:cording to pl@3i,,, 3nd specificatioii@; a@3pFo,,Pcl l,v th(, DP-@)ar taie@it u f Flu[) I ic lJtilities. a copy of wiiicll is 0,1 f!IR ,,itil t@IF2 DeparLple@t. 2. Tlie City ,h,311 aia@,e casti pay(nent t@o i,i tl,P iaiouiit of Ten Thousand Nine Hundred Twenty Dollars and No Cents -@($-I.01-92,0--O,O) a f tc@t- @@l(-c Lss fil I c on,l) I 2 t 1 ilti of Svstem and acceptance there,of by tlie City i@l itli appi-o,L'ci pl;ins. 3 TtiL@ City shall havp t[li@ , iglit; at ,r,y timr Lo m,31<c, c( rinrct, of permit the corinpc-tiori uf @3ny oth(?r sf7t@,c,'- facilit@.@ tu) @he Sy,,t;ein. O,iy stiF.Ii (-onn(-,ction niay bE? 3t awiy @)oir,t, iiici tt)R Cli@y @il@ll 11,3V2 tlie rigtit@ at a,iy time La use tl)e Sysi,em to @r@rve p[,,-,-.on7, t,) i t 1, i -t aiid w i ti,C)U L till@ Prr,,ipct limits,. 4. Upon successful crimpletion ol tlie SystLm and acceptatice L[iereof by the City, Oner fierebv agree, tlial ti,e Sv5teffi, ir,Lludi,ig but riot lifflited to sewer cotiner:tion-,, sewpr mailis, Ilipe@, arid a I I t[ier- facilitie,.,, sliall be de@emed cledicated lo I:IIE- City c)f VirgiyijLl B('.Icll as of ttiL, datp of thp, City's writtpn tlipt c,nf . 5. Owner ;ti@il I indem@iify a,id lic)ld the (-,ity frcir@ ar)y a,ici all liability of tqhatever iiattil e at i'3ilig ot@t of ttie? d(@sigii, ap[)i-c.)val , construction @ind/or in5tallation of t[,(? Sv,3t:cai. l,i t[iL Fveiit any claim is made against the City, either indlpeiicip-iitly or j,)irltly witli tlwiiel-, legsee, or purcha@er on acrount here?of, t[iL@ @t it@ solf@ co@t @ltall df?ferid tlie City against @uch claims. 6. T[iis Agreement sliall inure, t.o Ll,e @,,E,.efit C)f an@] [)E, t)ititiinq LIPFit) the parties [)Preto and tticir vesipcctivp 5ucccssoi-@@ ai,d 7. Llpo,i execution of tl)is Aqrc@efiterit, it .Iiall t@)e recorc.Jpd t@y tl)c City in t@iF@ CILI I< 's OfficL of tlie Ciy-cui t, Coi.i,-t@ of A.IIL- Ci ty of Vi, q i Iia Bea(:h, at Otner's LYpeiise. 2 STATE OF CITY OF -BA 1, a @],Dtary Pt.itili[: in and for L@,L City ayid Stat(, iforesaid, dc) herpby ce,-tify Divid--M. atid P,e!3id,?,it 3T,cl SccrE-@.aiy, yp,,@,ectivpl,,,, of .110SL -3re @iqi@ed to t@lie ritii-ig above, bearit,g datp of -2/25 I,avp I;he same liefnrp. nie in my City arici Stat;e afdresaid. Give,i @inde-r ny liand this d,3v c, f 1 98, @ly (-ommissic)n Expif-ps @3TATE OF VIRGINIA CITY OF VIRGINIA BEAT-H, to-viit: T@ie foreqoitig instrL]MeTIt V)aS @(-I@@IC),,,Iedged before f,,p by Aubrey V. Watt's, Ji-. aiici Ruth liodgc?s Smitl), the City Manager and City CIF2rl<, re5pecti,elv, of tl)EI City of Vi, gi,ii@) BLa, 11, @,I)is (jav of 1989. Public My Commission Expires: CITY OF VIRGII@IIA B[--ACH DEPARTMENI OF PUBLIC URIL.ITIES COST PARTICIPATIO@L AGREE@iEhIT (SEWC@@ 1HIS AGREEME14T, Ma(le thi5 _ 23_._.. day of F-ebr@ary_._, 1909, by and bet @4Eeyi -,---M-i,ke-B-e,@u-tUi-ng--Cor.poratio Fiet-e i na f tLr referre(I to as "Ovner". anct tlic,, CITY OF VIRGINIA IIEOCH, VIRGINIA, liereir)after refe,red to 87, tlle " CitY". WHEREAS, Oviner i@i seized in fev sifpr,le Lif Wally' y re anJ WHEREAS, Owner is desiro,i@ of imp,o,ing the Project iii accordance with the tev-ms afid c:on,litions of fhe Ci@,v @ii Jinances, ar,d aqv to cjfoy-m to said ordir)ances@ avid WHEPEA5, in order for Owiipr to I)i,,vide -,ewe)- service to tliis PI-OJL@t, t i@ riecessary for OvinE@r to coi@@@truct , e,- tai,, faci I itie7.; @li'Ll W[4EREAS, the City has -PquLsteti [:hat sur-h C.QnTtytjctio,i lip qipater in 5cope than is nece@@,ar-y to pro,idi? sL@rvic:-L t(i tiii,; Proi(@ct; aiid WtiEREA5, SL@ch construt-tiol) is of value to tlie Cit@/ iii p,-o@iding service to customers othei- than tlicsl@ ,;itllin tlic, Project lia,it,: NOW, TI-IEREFORE, iri caiisideratiot) of tt,p f,)utual i)romi-es a,id benefits 8CC'Llii,q lierelc,, th(2 partie@, IgrLE I o.nli- 511all co@Ft@uct a (I)ErFillaltLi- tl,e "SystL-Ill"@ acrordi@g to plans and specificaticins ipprcve@ci b@, the Depa,tmerit of PLI@)IIC Utilities, a copy of w@,icii is on file -itti tli,? Departaietit. 2. The City shall mal<E@ cash @iaymeiii; to O@,nc-r iii thp amount C)f Ten Thousand Nine Hundred Twenty Dollars and No Cents aftpi- st.iccessful comj)letion of tlle System and acceptince therf?of by Llip City i,i 3c-cordar,(-e @.,itti approvfd plans. I 3 T@IL- Ci ty E41al I liave t@le i iglit at 3ny timl to make, coiinoct, o, pern,it thp coniipction t)f any othtr ficility to thu, Sy-teni. Oiiy uc@i co,iii(?c:tic,it m@ly be @il; @iny point, aiid the City I have th@ righl at, ayiy time to u5,e the System to ser,,e ppy saw,s vii tl,j r) @i,i,i wi tl,ou L ttte f,rnjE-,Ci; I i m i t , . 4. Upon successful co,nplpi,io, cif t;he Sy@tpm and th.P-,-C',Of by thE@ City7 Owner ficrpriy agreps tti@il thL, @,vs@te(n, incltidirici but riot Iiiiiited to sptqer cc)nyiectic)ns, sever main@ , later al s, p ipe, and a I I n tlipr facilities, shall bF, deemed declicatpd to tl)e Ci ty c)f @)irginii Beacl, as of thc? tiate of the City's writtpn ac(-ept,3yicp tht-?r@-?of . !5. Owner sliall indpmnify a,id tiold t@ic, City @iarml[?SS fr-cim any and all liability of whatever na@,ure irisitig ou@, of t@ie (ie,@igi,, appioval, to,,sti-tictio@i anci/or i@stallation of the Sygtem. Iri the e\,E,nt any claim i-@ made ag,3it)st the City, either indef)er,dpntly oi jointly with Owner, lessee, or ptirchaeier (in accouvit hereof, the at it@s -ole cost shall d@-fend the City against sucli claims. 6. This Aqreement shall intit e tr, t@l,p- I]Eiic-7fit of tind be biiidiTIg LIPOrl tlie pirties herlto ant@l thei( r-cspective @,eirs, -5uccE?,.Soy,3 @ind aFsi(In!5. 7. Upoii exfcutiaii of t@iis (Agreement, it st,all I-iE-' r@.co@-(Ied [)y tlic City in the Cle,-@.'s Office of tlir Cir,-k.lit Court; (if Lhe Cit@, c)f Virgi,iia Reach, at Owne,'s expeiise. IN WIT@IESS WIIEREC)F. thp p,3rties lierp-tc) l,ave executecl Eind '-,L'alpd tliis Agi-eemprit as of the day 3nd veiv- first above @,,Titten. CITY OF VIRG]Nlv) BEACH, VIRf3lNlr, 2-@ (Ci ty@laiac lp, ATTEST: City Clerk BY DATE T ST. (SEAL y APPROVED AS TO CO@IT I i t i es A.PPROVED AS TO PORfl; City Attor-ney's Office CERTIFIED AS TO AVAILABILITY OF F-UNDS: Department of Financ .3TATE OF _3L R(IINIA---- C I TY OF VIRQI I - R L 1, .-@-datinp--J)aUghtry-pQpe__, a Notavy Public i,i for tt,t? CiL@, and State afo,esaid, do @,ereby cer@,ify ttial DI.@_@_Bell_ _ and Pfec;ider,t anci SE@c,&.tary, esppctively, of Th@Mi-KQ@l@C -OmDa@@@@ whose names @i e s i q riL,,] to tlie writiriq abovl', bearirig datp of @25/8_9 have jcl,T,c)@iledg@d t@ie s,,m@ hpforp m, in my Cii;v and State aforpsaid. Given under my hand this clav o,f 1 9f39. r,ly Commi,3sion Expires STAIE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: Tlie foi-egoi,)g iiistrLimeTit wa- acl@notqledged before@ u@e ily Aubrey V. Watts-,, Jr. and l@uth Flc)dgc@s '-,mith. tfie Citv Ilanag(,i- ar,d City Clerl,, @espectively, c)f thF? City of Virgii,ii L)Par.[,, ttlis cif 1989. [Jotary P,tblic @ly Commission Expir-es: AN ORDINANCE TO AUTHORIZE AND DIRECT THE CITY MANAGER TO EXECUTE COST PARTICIPATION AGREEMENT WHEREAS, H.W. Cube Inc. is developing certain property in the Kempsville Borough in accordance with the terms and conditions of city ordinances, and WHEREAS, the city has requested that the developer provide additional water mains to serve the surrounding area, and WHEREAS, such construction is beyond the scope of the developer's project but will provide for future city needs and will prevent the city from incurring additional costs at a later date, and WHEREAS, the city desires to enter into a cost participation agreement with the city's share of the costs at $47,000 with such costs to be charged to capital project 5-306 Water Request and Agreement Projects. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA that the city Manager is hereby authorized and directed to enter into a cost participation agreement with H.W. Cube Inc. for construction of certain water facilities. Said proposed agreement is hereby approved and attached. This ordinance shall be effective from the date of its adoption. Adopted by the Council of the City of Virginia Beach, Virginia on the 1 7 day of April , 19 89. CBN University WATFR nUN MTENSION BY AG C7 OVERSIZED WATER MATN BY AGRM@ SIL ALEXANDRIA SECTION IT ci A SECTTON II ME WATER COST PARTICIPATION SCALE 111 = 1600' Bll-12 3/9/89 MER:ps ALEXANDRIA SECTION II WATER COST PARTICIPATION AGREEMENT COST BENEFIT ANALYSIS Water Cost per agreement $47,000.00 Assumptions Given ttie anticipated demand W[lich prompted oversizing the water main inside Alexandria Section II from B" to 10", if the proposed main were not oversized a new parallel 6" water main would have been needed. 1220' 6" D.I. water main @ $18/L.F. $21,960.00 3 6" Gate Valves @ $357/EA 1,071.00 410 S.Y. Pavement Replacement @ $13/S.Y. 5,330.00 Stibtotal $28,361.00 The 12" water main iti Kempsville Road would have been the total responsibility of the City. 960' 12" D.I. Water Mairi @ $25/L.F. $24,000.00 2 12" Butterfly Valves @ $830/EA 1,676.oO 320 S.Y. Pavement Replacemerit @ $13/S.Y. 1+,160.00 3 3/4" Service Lines-20 L.F. @ $10/L.F. 600.00 3 Water Meter Boxes @ $44/EA 132.00 Subtotal $30,560.00 Total Cost to City without Agreement $38,-729.00 Savings to City $5B,929.00 - $47,000.00 $11,929.00 MHR:mc 3/9/89 (B 11-12) CITY OF VIRGINIA BEACH DEPARTMENT OF PUBLIC UTILITIES COST PARTICIPATION AGREEMENT (WATER) THIS AGREEMENT, Made this day of 19E*, by and between H. W. Cube, Inc. hereinafter referred to as "Owner", and the CITY OF VIRGINIA BEACH, VIRGINIA, hereinafter referred to as the "City. WHEREAS, Owner is seized in fee simple of Alexandria subdivision, Virginia Beach, Section II and WHEREAS, Owner is desirous of improving the Project in accordance with the terms and conditions of the City ordinances and agrees to conform to said ordinances; and WHEREAS, in order for Owner to provide water service to this Project, it is necessary for Owner to construct certain water facilities; and WHEREAS, the City has requested that such construction be greater ir] scope than is necessary to provide s2rvice to t@iis Project; and WHEREAS, such construction is of value to the City in providing service to customers other than those within the Project limits; NOW, THEREFORE, in consideration of the mutual promises and benefits accruing hereto, the partie5 agree that; 1. Owner shall construct a water system (@iereinafter the "Syst2M") according to plans and specifications approved by the Department of Public Utilities, a copy of which is on file with the Department. 2. The City shall make cash payment to Owner in the amount of For .1@ousand Dollars and, C,,ts !U@"V&8 Vv@r successful completion of the SystLm and acceptancl thereof by the City in accordance with the approved plans. I 3. The City shall have the right at any time to make, connect, or permit the connection of any other water facility to the 5y5tem. Any such connection may be at any point, and the City shall have the right at any time to use the System to serve persons within and witliout the Project limits. 4. Upon successful completion of thL System and acceptance thereof by the City, Owner hl-reby agrees that the System, including but not limited to water connections, water mains, valves, fittings and all other facilities, shall be deemed dedicated to the City of Virginia Beach as of the date of the City's written acceptance thereof. 5. Owner shall indemnify and hold the City harmless from any and all liability of whatever nature arising out of the design, approval, construction, and/or installation of the system. In the event any claim is made against the City, either indepl-ndently or jointly with Owner, lessee, or purchaser on account hereof, tlie Owner at its sole cost shall defend the City against such claim. 6. This Agreement shall iriurl to ttie benefit of and be binding upon the parties hereto and their respective heirs, successors, and assigns. 7. Upon execution of this Agreeinent, it shall be recorded by the City in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, at Owner's expense. 2 IN WITNESS WHEREOF, the partils liereto have executed and sealed this Agreement as of the day and year first above written. CITY OF VIRGINIA BEACH, VIRGINIA anager) DATE ATTEST: -(SEAL) City Clerk Byed. Pre5ident DATE EAL) c e APPROVED AS T,6 CONTE Dep'artme'nt of Pubb@ utiiitiL.S- APPROVED AS TO FORM: City Attorney's Office CERTIFIED AS TO AVAILABILITY OF FUNDS: Department of Finance(x,'O) 3 STATE OF CITY OF I, (i a Notary Public in and for the City and State aforesaid, do hereby certify that President and Secretary, respectively, of @,,Pl @@,whose names are signed to the writing above, bearing date of -,4 -/ -,?r@ - have acknowledged the same before me in my City and State aforesaid. Given under my hand this d.y of 198@. My Commission Expires Notary Public STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me by and Ruth Hodges Smith, the City Manager and City Clerk, respectively, of the City of Virginia Beach, this day of 1988. Notary Public My Commission Expires: 3/88 4 CITY OF VIRGINIA BEACH DEPARTMENT OF PUBLIC UTILITIES COST PARTICIPA-RION AGREEMENT (WATER) /,5/. THIS AGREEMENT, Made this day ofI 198?, by and between H. W. Cube, Inc. hereinafter referred to as "Owner", and the CITY OF VIRGINIA BEACH, VIRGINIA, hereinafter referred to as the "City. WHEREAS, Owner is seized in fee 5imple of AlQxandria Virginia Beach, Section and WHEREAS, Owner is desirous of improving the Project in accordance with the terms and conditions of tlie City ordinances and agrees to conform to said ordinances; and WHEREAS, in order for Owner to provide water service to this Project, it is necessary for Owner to construct certain water facilities; and WHEREAS, th2 City has requested that such construction be greater in scope than is necessary to provide service to this Project; and WHEREAS, such construction is of value to the City in providing service to customers other than those within thL- Project limits; NOW, THEREFORE, in consideration of the mutual promises and benefit5 accruing hereto, the parties agree that; 1. Owner shall construct a water systeni (hereinafter the "System") according to plans and specifications approved by the Department of Public Utilities, a copy of which is on file with the Department. 2. The City shall make cash pa ment to Owner in the amount of ($) Forty-Seven Thousand Dollars and No @ents $47 000.00 af ter successful completion of the System and acceptance thereof by the City in accordance with the approved plans. 1 3. The City shall havl the right at any time to make, connect, or permit the connection of any other water facility to the System. Any such connection may be at any point, and the City shall have th2 right at any time to use the System to serve persons within and wittiout th2 Project limits. 4. Upon successful completion of the Sy5tem aiid acceptance thereof by the City, Owiier hereby agrees tliat the System, including but not limited to water connections, water mains, valves, fittings and all other facilities, shall be deemed dedicated to the City of Virginia Beach as of the date of the City's written acceptance thereof. 5. Owner shall indemnify and hold the City harmless fi-om any and all liability of whatever nature arising out of the design, approval, construction, and/or installation of the system. In the event any claim is made against the City, either independently or jointly with Owner, leSS2e, or purchaser on account her2Df, the Owner at its sole cost shall defend the City against such claim. 6. This Agreement Bhall inurl to the ber,Lfit of and be binding upon the parties hereto and their respective heirs, successors, and assigns. 7. Upon execution of this Agreement, it shall be recorded by the City in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, at Owner's expense. 2 IN WITNESS WHEREOF, the parties hereto tiave executed and sealed this Agreement as of the day and year first abovl writteri. CITY OF VIRGINIA BEACH, VIRGINIA 'C@ty M.@.gr) DATE ATTEST: (SEAL) City Clerk E3Y- ent DATE ATTEST: L) Se r.A. APPROVED ep rte, liti2S APPROVED AS TO FORM: City Attorney's Office CERTIFIED AS TO AVAILABILITY OF FUNDS: @ Al' Department of Financ 3 STATE OF&@ CITY OF a Notary Public in and for the City and State aforesaid, do hereby certify that and President and Secretary, respectivlly, of whose names are signed to the writing above, bearing date of have acknowledged the same before me in my City and State aforesaid. Given under my hand this day of@ My Commission Expires Notary Public STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me by and Ruth fiodges Smith, the City Manager and City Clerk, respectively, of the City of Virginia Beach, this day of 1988. Notary Public My Commission Expires: 3/88 4 CITY OF VIRGINIA BEACH DEPARTMENT OF PUBLIC UTILITIES COST PARTICIPATION AGREEMENT (WATER) I THIS AGREEMENT, Made this d a y c) fi @6, l@,'- 19E)g, by and between H. W C,,h@ Tnc, hereinafter referred to as "Owner", and the CITY OF VIRGINIA BEACH, VIRGINIA, hereinafter referred to as the "City. WHEREAS, Owner is seized in fee simpl, ,f Alexandria subdivision, Virginia Beach, Section II and WHEREAS, Owner is desirous of improving the Project in accordance with the terms and conditions of the City ordinances and agrees to conform to said ordinances; and WHEREAS, in order for Owner to provide water service to this Project, it is necessary for Owner to construct certain water facilities; and WHEREAS, the City tias requested tliat such construction be grpater in scope than is necessary to provide service to this Project; and WHEREAS, such construction is of value to the City in providing service to customers other than those within the Project limits; NOW, THEREFORE, in consideration of the mutual promi5es and benefits accruing hereto, the parties agree tllat; 1. Owner shall construct a water 5ystem (hereinafter the "System") according to plans and specifications approved by the Department of Public Utilities, a copy of which is on file witli the Department. 2. The City shall make cash payment to Owner in tlie amount of ($) Forty-Seven Thousand Dollars and No Cents $47,000.00 after succe5sful completion of the System and acceptance thereof by the City in accordance with the approved plans. I 3. The City 5hall have the right at any time? tO make, connect, Or permit the connlction of any other water facility to the System. Any such connection may be at any point, and the City shall have the right at any time to use the System to serve persoiis within and without the Project limits. 4. Upon successful completion of the System and acceptarice thereof by the City, Owner hereby agrees that the System, including but not limited to water connections, water mains, valves, fittings and all other facilities, shall be deemed dedicated to t[ie City of Virginia Beach as of the date of the City's written acceptance thereof. 5. Owner shall indemnify and hold the City harmle55 from any and all liability of whatever nature arising out of the design, approval, con5truction, and/or installation of the system. In the event any claim is made against the City, 2ither indep2ndently or jointly witti Owner, lessee, or purchaser on account hereof, the Owner at its sole cost shall defend the City against such claim. 6. This Agreement shall iriure to tlie benefit of and be binding upon the parties hereto and their respective heirs, successors, and assigns. 7. Upon execution of this Agreement, it shall be recarded by the City in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, at Owner's expense. 2 IN WITNESS WHEREOF, the parties hereto have executed and sealed this Agreement as of the day and year first above written. CITY OF VIRGINIA BEACH, VIRGINIA nager) DATE--- ATTEST: (SEAL) City Clerk BY- President DATE ATTES // (SEAL) //ril(tkrv L" v v V(, bpc APPROVED AS(TO CONTFVTS: D ,,@t@e, f P,, Utilities APPROVED AS TO FORM: City Attorney's Office CERTIFIED AS TO AVAILABILITY OF FUNDS: Department of Finance @4P'o 3 STATE OF CITY OF-@, I, a Notary Public in and for tt)e City and State, aforesaid, do hereby cer ti f y that I @- / /@, (11 y and@ te @, /1) (i@- " PrL-sident and Secretary, respectively, of ,// --/ @j I @W, JJII-("-@whose names are signed to the writing above, bearing date of I - - I have aci<nowledged ttie same before me in my City and State aforesaid. Given under my hand this day of 1986. My Commission Expires Notary Public STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me by and Ruth Hodges Smith, the City Manager and City Clerk, respectively, of the City of Virginia BL-ach, this day of Notary Public My Commission Expires: 3/88 4 - 22 - Item IV-G.7. CONSENT AGENDA ITF14 # 31081 Upon notion by Vice Mayor Fentress, seconded by Councilman Sessoms, City Council ADOPTED: Ordinance awarding Chesapeake and Potomac Telephone Company of Virginia a franchise for the use of public property for the installation and operation of public telephone service. Voting: 10-0 Council Menbers Voting Aye: John A. Baum, Vice Mayor Robert E. Fentress, Harold Heischober, Barbara M. Henley, Reba S. McClanan, John D. Moss, Mayor Meyera E. Oberndorf, Nancy K. Parker, John L. Perry and William D. Sessoms, Jr. Council Menbers Voting Nay: None Council Members Abstaining: Albert W. Balko Council Members Absent: None "Councilman Balko ABSTAINED as he is retired from Chesapeake & Potomac Telephone Company 1 AN ORDINANCE AWARDING TO CHESAPEAKE AND 2 POTOMAC TELEPHONE COMPANY OF VIRGINIA A 3 FRANCHISE FOR THE USE OF PUBLIC PROPERTY FOR 4 THE INSTALLATION AND OPERATION OF 2UBLIC 5 TELEPHONE SERVICE 6 WHEREAS, the city of Virginia Beach has previously 7 solicited bids for the awarding of a franchise for the use of 8 public property for the installation and provision of public 9 telephone service; and 10 WHEREAS, Chesapeake and PotomaC Telephone Company of 11 Virginia, a Bell Atlantic Company, was the bidder which offered 12 the highest commission payable to the City and the best quality 13 of service in its bid; and 14 WHEREAS, the awarding of the said franchise will be of 15 substantial benefit to the citizens of, and visitors to, the City 16 of Virginia Beach; 17 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF 18 THE CITY OF VIRGINIA BEACH: 19 That the City Manager be, and hereby is, authorized and 20 directed to execute the attached contract between the City of 21 Virginia Beach and Chesapeake and Potomac Telephone Company of 22 Virginia, providing for the installation and operation of public 23 telephones on public property. 24 Adopted by the City Council of the City of Virginia 25 Beach, Virginia, on the 17th day of April 1989. 26 WMM/dhh 27 02/21/89 28 0 3 /0 3 /89 ROV D A NTI 29 CA-89-3156 30 \ordin\noncode\payphone.orn ,SIGNAT'URE DEPARTMENT APPROVED AS TO LEGAL IU711CI@NCY N @/0 l@M CITY ATTORNEY FRANCHISE AGREEMENT FOR PUBLIC TELEPHONE SERVICE ThiS Franchise Agreement, dated .. ....... by and between Chesapeake and Potomac Telephone Company of Virginia, a Bell Atlantic Company (hereinafter referred to as "Telephone Company"), and City of Virginia Beach (hereinafter referred to as "City"), is for the right to use certain property of the City for the installation and operation of Public Telephone Service. ARTICLE I - SCOPE OF OPERATION A. Responsibilities of the Telephone Company. The Telephone Company shall: 1. install, collect, and operate its public telephones, enclosures, and associated wiring at the City's premises; 2. maintain the public telephones, enclosures and associated wiring in proper working order and, when notified, repair such equipment within one business day, unless prevented from doing so by events not within its control (weekend/holiday repair service will be based on City's service needs); 3. be responsible for all taxes/permits applicable to the installation, use, control, and maintenance of the public telephone equipment; 4. act as prime contractor and be responsible for the performance of the provisions of this Agreement. Responsibility for resolution of conflicts between Telephone Company and its subcontractors, including Contel of Virginia, rests with Telephone Company. B. Responsibilities of the City. The City shall: 1. provide suitable space, safe convenient access, and electric power at City's expense for lighting necessary for the use of the public telephones; promptly report any hazardous conditions or service failures to the Telephone Company; and allow Telephone Company access during normal business hours to repair, maintain or collect coins from its equipment or to remove equipment upon disconnection of service; 2. display all mutually agreeable signs and not affix or permit to be affixed to the public telephone equipment any other signs, equipment, or information. ARTICLE II - TERM OF AGREEMENT This Agreement shall be in effect for a term of 60 months commencing on ------------ and extending to and including ARTICLE III - COMMISSION A. Commission. For providing public telephone service under this Agreement, the Telephone Company shall pay the City, as a commission, a percentage of billable gross revenues, less taxes, for each public telephone based on Cash Calls, Calling Card Calls, Collect Calls, Third Party Calls, and Other Operator Assisted Long Distance Calls for each month this Agreement remains in effect. Said commission payment shall be paid to the City within 30 days of the end of each month and be based upon a commission percentage of 9%. B. In the event that Telephone Company provided billing and collection services, including recording of interexchange carrier-handled traffic, is discontinued or materially changed with respect to interexchange traffic originated from Telephone Company's public telephones which are the subject of this Agreement, Telephone Company will develop an alternate commission plan under which Telephone Company will provide commission payments comparable to those paid under thiS Agreement, with no lapse in payments. C. In addition to, and not withstanding Article III(B) above, in the event that either (1) existing regulatory procedures previously issued by the FCC or state regulatory commissions are modified or voided or (2) the Telephone Company offers City the ability to select a primary interexchange carrier to handle interexchange traffic originating from Telephone Company's public telephones which are the subject of this Agreement, then Telephone Company will continue to pay commission at the same percentage rate agreed to herein; however, such payments shall be made only with respect to calls which are wholly transported by Telephone Company. D. The Telephone Company will provide a monthly statement of commission and revenue to the City. The City can exercise the right to review pertinent revenue information by providing the Telephone Company thirty (30) days written notice. ARTICLE IV - TELEPHONE DESIGN/PLACEMENT AND CAPABILITIES A. Telephone Design/Placement. All telephones shall be standard in design and placement. Their installation and enclosure shall be readily noticeable and clearly identified. B. Telephone CapabilitieS. Telephone Company shall provide telephones that shall have the following capabilities: 1. Local Calling 2. IntraLATA Calls 3. interLATA Calls 4. Collect Calls - Local and Toll 2 5. Credit Cards 6. Time and Charges 7. Third Number Billed 8. 911 Emergency Calls Without Needing A Coin 9. 800 Number Calls 10. Directory Assistance 11. Local Directory ASSistance - No Charge 12. Surcharge for Long Distance 13. Handicap Capabilities When Applicable a. Lowered Unit b. Coin Slot At 54" C. Volume Control d. Longer Handset Cord ARTICLE V - INSTALLATION, RELOCATION AND DELETION A. Initial Quantities. This Agreement applies to the operation of ninety-six (96) public telephones and associated enclosures of the type and in the locations set forth in Attachment A hereto. B. Additional installations. Upon mutual agreement of both parties, the Telephone Company may install additional public telephones on or in the premises covered by this Agreement. All terms of this Agreement shall apply to any additional public telephones installed under this Agreement. C. Special Events. Upon mutual agreement of both parties, the Telephone Company shall add and delete telephones on an as needed basis for special events and functions that may require additional phones. D. Relocation. No public telephone or enclosure shall be moved from the location in which it is installed, unless mutually agreed upon by both parties. E. Deletion of Telephones. (1 ) The City may, in its sole discretion, cause no more than ten per cent (10%) of the number of telephones subject to this Agreement to be deleted. The City may also, for reasonable cause, or by mutual agreement of the parties, cause a greater number of telephones subject to this Agreement to be deleted. For purposes of this Agreement, "reasonable cause" shall include the closure of any facility at which such a telephone is located; the comprehensive redesign of any public area or areas, including, without limitation, the boardwalk and adjacent areas of the Virginia Beach resort area; the repeated use of any such telephone for illicit activities or in such manner as to constitute a public or private nuisance; or any other condition or situation in which the use of any such telephone is detrimental to the public health, safety or welfare. (2) In the event of the deletion of any telephone pursuant to the provisions of subsection (1) hereof, the City shall 3 not, within the term of this Agreement, replace, or cause the replacement of, any such deleted telephone by any entity other than the Telephone Company or its successor in interest. ARTICLE VI - CANCELLATION OF AGREEMENT. A. Cancellation of Agreement. In the event of a material breach of this Agreement by either party, and the failure of such party to remedy such breach within fifteen (15) days' from the receipt of written notice specifying the nature of the breach, the aggrieved party may cancel the Agreement by giving written notice to the other party in accordance with the provisions of Article X (E) of this Agreement. In the event the City is the breaching party, it shall reimburse the Telephone Company for the full cost of installing and removihg all public telephone equipment installed by it pursuant to this Agreement after the effective date thereof. ARTICLE VII - INDEMNIFICATION AND LIABILITY A. Indemnification. The Telephone Company agrees to indemnify and hold harmless City against claims, loss, or liability arising from changes to or destruction of property or injury to persons occurring as a result of negligent installation, operation, maintenance, or repair of the public telephone equipment provided herein. B. Liability. Except as provided in Article VII, Section A hereof, City agrees that no liability shall attach to the Telephone Company for interruption of service from any cause; nor shall any other liability in any other case attach to Telephone Company. In no event shall the Telephone Company be liable for incidental or consequential damages, including lost station revenues. C. Insurance. A Certificate of Insurance written by a company or companies acceptable to the City of Virginia Beach or certification of self insurance shall be submitted to the City prior to beginning work under this Agreement and no later than ten days after the signing of the Agreement. Such insurance shall be maintained during the entire term of the contract and shall be in the forms and at the limits shown below: Form Limits Workmen's Compensation Statutory Comprehensive General Liability $1,000,000 C.S.L. Automobile Liability $1,000,000 C.S.L. ARTICLE VIII - RULES AND REGULATIONS A. System Guidelines/Rules. Telephone Company shall abide by all guidelines and interim rules issued by the Virginia 4 State Corporation Commission that affect services to be performed under this agreement. B. Laws and Regulations. Telephone Company shall abide by all applicable state laws, municipal ordinances, and rules and regulations of all authorities having jurisdiction over the services to be performed. ARTICLE IX - EQUAL EMPLOYMENT A. Equal EMployment. During the performance of the Agreement, Telephone Company agrees as follows: 1. Telephone Company shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, national origin, or handicap except where religion, sex, national origin, or handicap is a bona fide occupational qualification reasonable necessary to its normal operation ' Telephone Company agrees to post in conspicuous places available to employees and applicants for employment notices setting forth the provisions of this nondiscrimination clause. 2. Telephone Company, in all solicitations or advertisements for employees placed by or on behalf of Telephone Company, shall state that such Telephone Company is an equal opportunity employer. 3. Notices, advertisements, and solicitations placed in accordance with federal law, rule, or regulation shall be deemed sufficient for the purpose of meeting the requirements of this section. B. Subcontractors. Telephone Company will include the provisions of the foregoing paragraphs, 1, 2 and 3 in every subcontract or purchase order of over ten thousand dollars ($10,000.00), so that the provisions will be binding upon such subcontractor or vendor. ARTICLE X - MISCELLANEOUS A. Premises Ownership. City hereby warrants that it has the right of possession to the premises on which the Telephone Company shall install the public telephones and enclosures which are the subject of this Agreement, or has the authority to enter into this Agreement on behalf of the owner of said premises. B. Choice of Law. The construction, interpretation, and performance of this Agreement and all transactions hereunder shall be governed by the domestic laws of the Commonwealth of Virginia. 5 C. This Agreement may not be assigned by either party without at least thirty (30) days prior written consent of the other. D. Entire Agreement. This instrument contains the entire Agreement by and between the parties hereto. E. Notices. All notices required to be in writing herein shall be delivered by each party to the other party, either in person or by registered mail at the addresses specified below. To: 13e44 91 a A16-1@,e '56et4@ To: (Contractor) (City) (Street) (Street) ,,2 @4-@ n@l (City) (StaVe) (Zip) (City) (State) (Zip) Attn: m . @ (Name and Title) - - (Name and Title) Each party shall notify the other of any change of address by providing the other party thirty (30) days prior written notice. IN WITNESS WHEREOF, the following signatures and seals: City of Virginia Beach, a municipal corporation By City Manager ATTEST: City Clerk Chesapeake and Potomac Telephone Company By ATTEST: TO C-.,N 6 r T!@ ATTACHMENT A ATTACHMENT A PAGE 1 OF 6 c&p OF VIRGINIA TELEPHONES LOCATION TELEPHONE NUMBER Mt. Trashmore Edwin Drive 497-9011 Social Services 3432 Va. Beach Blvd. 340-9533 Health Dept. 19th & Arctic Avenue 42B-9468 Police Dept. 926 Independence Blvd. 464-9946 Police Dept. 425-9809 319 18th Street Lynnhaven Marina Vista Circle 481-9851 Library Dept. 1251 Bayne Drive 481-9756 Library Dept- 832 Kempsville Road 467-9894 Visitor Information Ctr. 1900 Pacific Avenue 428-9420 Visitor information Ctr. igoo PacifiC Avenue 428-9435 Dome 19th & PacifiC Ave. 428-9661 Dome 19th & Pacific Ave. 428-9529 Land Fill 1601 Centerville Turnpike 420-8834 Redwing Golf Course lo8o Prosperity Rd. 42a-9707 Bow Creek Community Ctr. 3425 Club House Road 340-9500 Bow Creek Golf Course 340-9430 3425 Club House Road Pavilion looo igth Street 425-9876 , I - - @ @ - I @ I I - , I @" PAGE 2 OF 6 C&P OF VIRGINIA TELEPHONES LOCATION TELEPHONE NUMBER Pavilion 1000 19th Street 425-9898 Pavilion 1000 19th Street 425-9787 Norfolk & Pacific Ave. 425-9884 14th & Pacific 425-9885 67th & Atlantic 425-9680 67th & Atlantic 425-9877 56th & Atlantic 428-9634 56th & Atlantic 428-9421 Bay Colony Dr. & Atlantic 425-9810 30th & Ocean Front 425-9774 30th & Ocean Front 425-9542 29th & Ocean Front 42B-9733 29th & Ocean Front 425-952B 28th & Ocean Front 425-9759 28th & Ocean Front 428-9514 27th & Ocean Front 425-9696 27th & Ocean Front 428-9668 32nd & Pacific 425-9756 Recreation Dept. 800 Monmouth Lane 467-9871 Recreation Dept. 800 Monmouth Lane 467-9872 Recreation Dept. 800 Monmotith Lane 467-9870 ATTACHMENT A PAGE 3 OF 6 C&P OF VIRGINIA TELEPIIO14ES LOCATIOV TELEPIIONE NUMBER 25th & Pacific 425-9702 25th & Atlantic 428-9818 25th & Atlantic 428-9821 24th & Atlantic 425-9889 24th & Atlantic 428-9878 24th & Atlantic 428-9897 22nd & Atlantic 425-9731 20th & Ocean Front 425-9569 19th & Atlantic 428-9596 18th & Atlantic 428-9768 Va. Beach Blvd. & Ocean Front 428-9808 Va. Beach Blvd. & Ocean Front 4128-9855 16th & Ocean Front 4/25-9723 Between 14th & 15th St. & Ocean Front 425-9628 13th & Ocean Front 425-9642 12th & Ocean Front 425-9550 10th & Ocean Front 425-9581 6th & Atlantic 425-9730 ATTACII@IENT A PAGE 4 OF 6 C&P OF VIRGINIA TELEPtiONES LOCATIOti TELEPHON BER Pavilion 425-9860 looo 19th Street Pavilion 425-9829 looo 19th Street Pavilion 425-9522 looo 19th Street Pavilion 425-9713 iooo 19th Street Pavilion 425-9737 looo 19th Street 4100 Va. Beach Boulevard 498-9966 (Central Library) 4100 Va. Beach Boulevard 498-9967 (Central Library) 4100 Va. Beach Boulevard 498-996B (Central Library) 4100 Va. Beach Boulevard 498-9998 (Central Library) ATTACHMENT A PAGE 5 OF 6 CONTEL TELEPHONES I,OCATION TELEPHONE NUMBER Jail/1st Floor 427-9959 School Board/1st Floor 427-9962 Public Safety Bldg. 427-9967 General District Court 427-9975 Circuit Court Bldg. 427-9986 Circuit Court 427-9987 Little Island Park 721-9916 Little Island Park 721-9930 Munden Point Park 721-9946 Munden Point Park/Snack Bar 721-9985 Operations Bldg./Ist Floor 427-9820 Operations Bldg./lst Floor 427-9821 Operations Bldg./3st Floor 427-9822 Operations Bldg./3st Floor 427-9823 Highway Maintenance Landstown Road 427-9840 Chief Magistrate 427-9842 Courthouse Bldg. 427-9904 General District Court 427-9923 General District Court 2nd Floor 427-9924 City Hall 427-9925 A'E'PACii@lL@N'P A PAGE 6 OF 6 CONTEL TELEPHONES LOCA@ION TELEPHONE NUMBER City Hall 427-9926 City liall 427-9927 City Hall 427-9928 Public Safety Bldg. 427-9929 School Board 427-9938 General District Court 427-9943 Public Safety Bldg. 427-9946 Public Safety Bldg. 427-9948 Jail/2nd Floor/Portable 427-9956 Jail/Front Lobby 427-9957 Jail/Front Lobby 427-9958 - 23 - Iter,i IV-G.8. CONSENT AGENDA ITDI # 31082 Upon motion by Vice Mayor Fentress, seconded by Councilman Sessoms, City Council APPROVED upon FIRST READING, AS REVISED: Ordinance to ACCEPT and APPROPRIATE a $4,000 State Literary Grant by the Commonwealth into the FY 1988-89 Operating Budget of the Library Department. Voting: 11-0 Council Members Voting Aye: Albert W. Balko, John A. Baum, Vice Mayor Robert E. Fentress, Harold Heischober, Barbara ti. Henley, Reba S. iIcClanan, John D. Moss, Mayor Meyera E. Oberndorf, Nancy K. Parker, John L. Perry and William D. Sessoms, Jr. Council Mer@ibers Voting Nay: None Council Members Absent: None A ril 17 1 AN ORDINANCE TO ACCEPT AND APPROPRIATE $4,000 IN A STATE GRANT INTO TIIE FY 1988-89 OPERATING BUDGET OF TIIE LIBRARY DEPARTMENT WHEREAS, the Commonwealth of Virginia has implemented an initiative program designed to attack and reduce literacy throughout the state, and WHEREAS, the Library Department has received permission to apply for grant funding under the state approved Literacy Grant program, and WHEREAS, the state has accepted the Literacy Grant application and approved funding of $4,000 for the Library Department, and WHEREAS, this approved funding will be used to hire a Literacy Trainer to conduct training sessions and to print literacy information. NOW, THEREFORE, BE 1T ORDAINED BY TIIE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA, that $4,000 made available from the Literacy Grant by the Commonwealth, be accepted and appropriated into the FY 1988-89 operating budget of the Library Department to be used to hire a Literacy trainer. This ordinance shall be in effect from the date of its adoption. Adopted this _ day of 1989, by the Council of the City of Virginia Beach, Virginia. First Reading: April 17, 1989 Second Reading: APPRovED AS TO CONTENTS MLS/LIBGRANT.ORD 5IGNATUII@E DE PA 'I'l APPRO L!':GAL - 24 - Item IV-G.9. CONSENT AGENDA ITFI-I # 31083 Upon motion by Vicc Mayor Fentress, seconded by Councilman Sessoms, City Council APPROVED upon FIRST READING: Ordinance to authorize and agree to APPROPRIATE $232,000 for the purchase of a fire station site in Oceana West Tndustrial Park from the Virginia Beach Development Authority. Voting: 11-0 Council Members Voting Aye: Albert W. Balko, John A. Baum, Vice Mayor Robert E. Fentress, Harold Heiscliober, Barbara Ill. Henley, Reba S. McClanan, John D. Moss, Mayor Meyera E. Oberndorf, Nancy K. Parker, John L. Perry and William D. Sessoms, Jr. Council Members Voting Nay: None Council Members Absent: None APPROVED AS TO CtD@4TE@4TS @GNATURE DEPART@Ar" First Reading April 17, 1989 t --@RnVED AS TC) LEGAL Second Reading U FICIENCY AND FORM AN ORDINANCE AUTHORIZING AND 2 AGREEING TO THE PURCHASE OF A 3 FIRE STATION SITE IN OCEANA WEST 4 INDUSTRIAL PARK FROM THE VIRGINIA 5 BEACH DEVELOPMENT AUTHORITY AND 6 APPROPRIATING FUNDS FOR THE 7 PURCHASE OF THAT SITE 8 9 10 WHEREAS, the Fire Department of the City of Virginia 11 Beach has determined that a need exists for an additional fire 12 station in the oceana West Industrial Park area; and 13 WHEREAS, the Development Authority of the City of 14 Virginia Beach has agreed to sell a 2.9 acre site in Oceana West 15 Industrial Park to the City of Virginia Beach, as more 16 specifically shown on the attachments, for use as a fire station 17 site; and 18 WHEREAS, the Authority has agreed to allow the City to 19 credit the principal amount on certain notes owed to the City by 20 the Authority as payment for this site in the amount of $80,000 21 per acre, or $232,000 for the site; and 22 WHEREAS, the City desires to accept the Authority's 2---' offer in this matter: 24 25 NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE 26 CITY OF VIRGINIA BEACH, VIRGINIA: 27 1. The City hereby accepts the Authority's offer to 28 purchase the 2.9 acre site in Oceana West Industrial Park for 29 $232,000, with payment being made to the Authority in the form of 30 a credit to the outstanding principal of the Authority's notes to 31 the City in an amount of $232,000. 32 2. The City Council hereby authorizes $232,000 in 33 appropriations from the General Fund balance for the purchase of 34 that site and directs that principal amount of the Authority's 35 notes to the City be reduced by $232,000. 1 Adopted by the City Council of the City of Virginia 2 Beach, Virginia, on the day of , 1989. 3 4 KJC/dhh 5 04/06/89 6 04/12/89 7 FIRESTAT.ORD 8 2 NOVEMBER 8, 1988 2 MINUTES 3 VIRGINIA BEACH DEVELOPMENT AUTHORITY 4 TUESDAY, NOVEMBER 8, 1988 5 6 The regular monthly meeting of the 7 Virginia Beach Development Authority was held on Tuesday, November 8, 1988, at 8 ll:,35 a.m., Lynnhaven Corporate Center, 779 Lynnhaven Parkway, suite 200, Virginia 9 Beach, Virginia, pursuant to notice given by the Chairman. 10 11 MEMBERS PRESENT: 12 Van H. Cunningham, Chairman 13 Clenton W. Shanks, Vice Chairman M. J. 'Boyd' Cololate, Sr., Secretary 14 Frederick W. Twyman, III, Treasurer Kenenth Palmer 15 Andrew S. Fine 16 MEMBERS ABSENT: 17 Alfred M. Randolph 18 19 ADVISORS: 20 James T. Davis, III, Industrial Coordinator Larry Barry, Consulting Engineer 21 A. James DeBellis, Director, Economic Development Kevin J. Cosgrove, Assistant City Attorney 2 2 2 3 2 4 25 REPORTED BY: Diane Mason Gray, RPR COMMONWEALTH REPORTING SERVICES iuVE,'@IBER 8, i988 13 1 MR. CUNNINGHAM: Those in favor of 2 the motion, say aye. Opposed? Passed. 3 MR. TWYMAN: Mr. chairman, I did 4 have one other item under finance that I 5 forgot about with regards to the fire 6 station property. 7 MR. CUNNINGHAM: All right. 8 MR. TWYMAN: The committee has 9 reviewed and authorized the property off 10 of Voyager Court -- Central Drive to be 11 given to the city for $80,000 an acre 12 provided that the value offsets principal 13 on notes that are due the city, and we 14 would like to recommend that to the full 15 Authority. 16 biR. CUNNINGHAM: You've heard the 17 motion. Is there a second? 18 MR. FINE: Second. 19 MR. CUNNINGHAM: Any discussion? 20 Those in favor, say aye. Opposed? 21 Anything else? 22 MR. TWYMAN: I think that's it. 23 MR. CUNNINGHAM: Engineering 24 items, Mr. Barry? 25 MR. BARRY: We have nothing this COMMONWEALTH REPORTING SERVICES P6 rn ai ;o z 61 If: A@- 51, I E-< z z :c m z -u x 71 SITE @ OCEANA S@WK CIRCLE TIOP VICINITY MAP (NO SCALE) - 25 - Item IV-G.10 CONSENT AGENDA ITEM # 31084 Upon motion by Vice Mayor Fentress, seconded by Councilman Perry, City Council ADOPTED: Ordinance to TRANSFER $84,000 to Project 2-089 Southeastern Expressway (Pine Ridge, Section 5, Parcel A), for the purchase of property along the proposed Expressway alignment (Deferred April 3, 1989). Voting: 8-3 Council Members Voting Aye: Albert W. Balko, John A. Baum, Vice @iayor Robert E. Fentress, Harold Heischober, Barbara M. Henley, Mayor Meyera E. Oberndorf, John L. Perry and William D. Sessoms, Jr. Council N'embers Voting Nay: Reba S. McClanan, John D. Vioss and Nancy K. Parker Council Members Absent: None A ril 17, 1989 AN ORDINANCE TO TRANSFER IN THE OF 0,84,000 TO 2-089 SOUTHEASTERN Y FOR THE E OF PROPERVY ALONG @ PROPOSED Y AJJ WHEREAS, in January, 1988, the developers of the Pine Ridge subdivision submitted a preliminary subdivision of Pine Ridge Section Five, and WHEREAS, in the review process of the p subdivision, it was de that lots 6 and 7 fell within the p aligrmient of the Southeast- ern Expressway, and , to protect the expressway ali t, council directed that the city pursue the acquisition of the parcels with an appraised value of $84,000, and WHEREAS, the necessary funds for the purchase of the parr-els my be obtained by the transfer of appropriations fram project 2-036 Roadways Advanced Land Acquisition. NOW, RE, BE IT 0 BY @ CUNCIL OF THE CITY OF BEACH, @INIA that funds in the amount of $84,000 are hereby transferred frcin project 2-036 Roadways Advanced Land Acquisition to project 2-089 Southeastern Expressway for the purchase of property along the proposed expre-ssway aligmmt. This ordinance shall be effective from the date of its adoption. Adopted by the Council of the City of Virgi-nia Beach, Virginia on the 17 day of April , 1989. - 26 - Item IV-G.11. CONSENT AGENDA ITEM # 31085 Upon motion by Vice Mayor Fentress, seconded by Councilman Sessoms, City Council ADOPTED: Ordinance authorizing and approving, upon conditions, encroachments by a building canopy and awning on the premises of Forbes Candies, Inc., Atlantic Avenue and 22nd Street (VIRGINIA BEACH BOROUGII). The following conditions shall be required: 1. All nonconforming signage to be removed and all signs thereafter to meet all pertinent City sign regulations. 2. Signage on the canopy to be recessed as much as reasonably possible, and in no event to protrude beyond the face of the canopy. 3. Building facade to be maintained in compliance with appropriate provisions of the Resort Area Facade Program Design Guidelines. 4. Authorization to be revocable at the pleasure of the City or the General Assembly (Virginia Code Section 15.1-376 requires this). 5. Applicant not to be relieved of any liability for negligence on account of the encroachments. 6. Applicant to execute written agreement stating all conditions of approval. Voting: 11-0 Council Members Voting Aye: Albert W. Balko, John A. Baum, Vice Mayor Robert E. Fentress, Harold Heischober, Barbara M. Henley, Reba S. McClanan, John D. Moss, Mayor Meyera E. Oberndorf, Nancy K. Parker, John L. Perry and William D. Sessoms, Jr. Council @lembers Voting Nay: None Council Members Absent: None A ril 17 1 T APPROVED AS TO LEGAL 1 AN ORDINANCE AUTHORIZING AND APPROVING, UPON 2 CONDITIONS, ENCROACHMENTS BY A BUILDING 3 CANOPY AND AWNING ON THE PREMISES OF FORBES 4 CANDIES, INC., ATLANTIC AVENUE AND 22ND 5 STREET, IN THE BOROUGH OF VIRGINIA BEACH 6 WHEREAS, Forbes candies, Inc. (hereinafter referred to 7 as "Forbes") is the operator of a certain retail establishment 8 located at Atlantic Avenue and 22nd Street in the Borough of 9 Virginia Beach; and 10 WHEREAS, Forbes has applied to the City of Virginia 11 Beach for approval to maintain an existing encroachment by a 12 building canopy and signage on the northern and eastern facades 13 of the premises; and 14 WHEREAS, Forbes has also applied for approval to erect 15 an encroaching awning on the aforesaid premises; and 16 WHEREAS, the said building canopy is an integral 17 portion of the remainder of the building in which Forbes Candies 18 is located; and 19 WHEREAS the proposed awning and the signage on the 20 existing canopy may not lawfully be approved administratively 21 because they do not conform to the specific requirements of the 22 Resort Area Facade Program Design Guidelines pertaining to 23 signage and awnings; 24 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF 25 THE CITY OF VIRGINIA BEACH, VIRGINIA: 26 That Forbes Candies, Inc. be, and hereby is, granted 27 approval and authority to maintain an encroachment by the 28 existing building canopy on the premises of Forbes Candies, 29 Atlantic Avenue and 22nd Street, in the Borough of Virginia 30 Beach, and to place signage on the said building canopy, upon and 31 only upon the conditions set forth hereinbelow. 32 It is further ORDAINED, that Forbes Candies be, and 33 hereby is, granted approval and authority to erect and maintain 34 an encroachment by an awning on the aforesaid premises, upon and 35 only upon the conditions set forth hereinbelow. 36 The conditions for the approval and authority hereby 37 granted shall be as follows: 38 1. All nonconforming signage shall be eliminated, such 39 that signage on the aforesaid premises shall at all times conform 40 to all pertinent City sign regulations, including, but not 41 limited to, the RT-2 Resort Tourist District sign regulations set 42 forth in Section 1513 of the City Zoning Ordinance; 43 2. Signage on the building canopy shall be recessed 44 into the canopy as far as is reasonably possible and shall in no 45 event protrude outside of the face of the canopy; 46 3. The facade of the building shall at all times be 47 maintained in compliance with the provisions of the Resort Area 48 Facade Program Design Guidelines pertaining to maintenance of 49 building facades; 50 4. Pursuant to Section 15.1-376 of the Code of 51 Virginia, this granting of authority and approval for the 52 aforesaid encroachments shall be in the nature of a license only, 53 and shall be revocable at the pleasure of the City or the General 54 Assembly; 55 5. Forbes shall not be relieved of any liability for 56 negligence on account of the encroachments herein authorized. 57 6. Forbes shall execute an agreement stating all of 58 the aforesaid conditions of approval. 59 Adopted by the City council of the city of Virginia 60 Beach, Virginia, on the 17 day of April 1989. 61 WMM/dhh 62 04/10/89 63 CA-89-3261 64 \ordin\proposed\forbes.orn 2 - 27 - Item IV-G.12. CONSENT AGENDA ITEL # 31086 Upon motion by Vice Mayor Fentress, seconded by Councilman Sessoms, City Council APPROVED: LOW BIDS: A & W CONTRACTORS, INC. $176,000.00 (North Seaboard Road Water and Sewer Project) STEVE OVIENS and AFFORDABLE CONTRACTING/ $192,000.00 BRUCE EXUM (For the removal of underwater obstruction from the Atlantic Ocean at 7th Street) Voting: 11-0 Council llembers Voting Aye: Albert W. Balko, John A. Bauri, Vice Mayor Robert E. Fentress, Harold Heischober, Barbara 111. Henley, Reba S. McClanan, -lohn D. Moss, Mayor imeyera E. Oberndorf, Nancy K. Parker, John L. Perry and William D. Sessoms, Jr. Council Members Voting Nay: None Council Members Absent: None - 28 - Item IV-G.13. CONSENT AGENDA TTFI@L # 31087 Upon motion by Vice Mayor Fentress, seconded by Councilman Sessoms, City Council APPROVED: RAFFLE/BINGO PERMITS FAIRFIELD ELAIENTARY PTA Raffle KFiqPSVILLE ELEMENTARY PTA Raffle LARKSPUR RECREATION ASSOCIATION Raffle MULTIPLE SCLEROSIS SOCIETY Raffle GREEN RUN LITTLE LEAGUE Bingo/Raffle Voting: 11-0 Council Members Voting Aye: Albert W. Balko, John A. Baum, Vice Mayor Robert E. Fentress, Harold Heischober, Barbara M. Henley, Reba S. McClanan, JohR D. Moss, flayor Meyera E. Oberndorf, Nancy K. Parker, John L. Perry and William D. Sessoms, Jr. Council I'leribers Voting Nay: lione Council Members Absent: None - 29 - Item IV-I.I. @5 IIEL f @itv i@gni@pr for vAg in Attpn@Antp to respond to inquires relative the INTERIM FINANCIAL STATEMENTS July 1, 1988 - February 28, 1989. Said Statements are hereby made a part of the record as distributed to City Council on April 10, 1989. - 29 - Item IV-I.l. NEW BUSINESS ITEM # 31088 Giles Dodd, Assistant City Manager for Administration, was in attendance to respond to inquires relative the INTERIM FINANCIAL STATEMENTS July 1, 1988 - February 28, 1989. Said Statements are hereby made a part of the record as distributed to City Council on April 10, 1989. - 30 - Item IV-I.2. NEW BUSINESS ITFPI # 31089 C. Oral Lambert, Jr. , Director of Public Works, advised as projects in the highway construction program proceed through the design phase into the construction phase, there is an increased concern among residents adjacent to several of the projects about the potential increase in highway-generated noise levels and the impact on adjacent properties. In August 1988, the Commonwealth Transportation Board adopted a Statewide Noise Abatement Policy which becomes effective on January 1, 1989. Jeff Waller, Civil Engineer with Public Works - Engineering, presented technical information relative the Noise Abatement Ordinance and Noise Abatement Policy. The Noise Abatement Ordinance pertains to Virginia Departrqent of Transportation (VDOT) highway projects. The Noise Abatement Policy pertains to Highway Projects funded exclusively by the City. The acceptable standard noise level at the exterior of a house, according to the Federal Standards, is 67 decibels and that level can only be exceeded no more than 10/- of the time. For any projects that include federal funds, noise abatement measures will be included in accordance with the Federal Highway Administration standards. For any projects that do not include federal funds, noise abater@ient will be included if the following prerequisites are met: 1. The local jurisdiction, through which the project r,asses, will pay 50% of the noise abatement cost; and, 2. The local jurisdiction will already have an ordinance requiring developers to include noise abatement measures in their plans for residential and other noise-sensitive developments adjacent to existing highway and future highway alignments previously adopted by the Commonwealth Transportation Board. VDOT will consider noise abatement measures on a project if the projected noise levels emanating from the highway during the design year equal or exceed the Federal Highway Administration Noise Abatement Criteria, the measures provide a mininium 5 dB (a) attenuation (positive noise benefit), and the abatement measures cost does not exceed $20,000 per receptacle (e.g. a house). ADVANTAGES 1. By adopting the ordinance, the City will be able to have VDOT pay 50cts of the cost of any justified noise abatement measures to be installed on state highway projects DISADVANTAGES 1. If the City pursues adopting this Ordinance and VDOT starts including noise abatement measures with their projects, it is anticipated that these projects will be walled highways, which are aesthetically unappealing to many people. 2. If a noise wall is used, the estimated cost is $16 per square foot. VDOT's environmental office has advised our staff to use a 10-foot high wall for planning purposes when analyziig the cost of a noise wall ($16/s.f. x 10 ft. = $160/linear foot). The current C.I.P. includes 12 VDOT projects that have an aggregate length of 22.7 miles. If 10% of the total length were walled, both the city and VDOT share would be $1.9-Million. - 31 - Itei.q IV-I.2. NEW BUSINESS ITF14 # 31089 (Continued) 3. If a developer has to build a noise wall that costs $260 per linear foot, the added cost to a development with 1,000 feet of frontage would be $160,000. This cost will be passed on to the buyers as an increased cost per dwelling. 4. If a wall is installed, there will be annual maintenance costs. If the wall is in the public right-of-way, this will be a cost to the City. It may be possible to install the ivall on private property in an easement and have the adjacent property owner assu.,.Ie the annual maintenance responsibility 5. VDOT's allocation in Virginia Beach is fixed. if VDOT's total cost per highway mile is increased in the City for any reason, VDOT can build fewer projects per year. This will adversely affect the City's highway program. 6. If noise abatement measures will be analyzed on @qore projects, the City will have to provide training to staff, hire new staff with expertise in noise and noise abaterient, or contract with a private noise expert. The alternative to adopting the ordinance is not adopting the ordinance. if the City does not adopt the ordinance, Staff will continue to consider noise abatement on VDOT projects on a case-by-case basis. If the City wants noise abaterient measures installed on a project, the cost will be 100% city funds. Jeff Waller referenced the various Alternative Noise Abatement measures: Continue to evaluate each project on a case-by-case basis. Use noise abatement walls on projects. Use dense landscaping on projects. Increase building setbacks along major highway corridors. With new residential developments, encourage developers to move the dwelling units away from the highways. Some combination of the above. A