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Home My WebLink AboutFEBRUARY 28, 2006 MINUTES CITY OF VIRGINIA BEACH " COMMUNITY FOR A LIFETIME CITY COUNCIL MAYOR MEYERA E. OBERNDORF, At-Large VICE MA YOR LOUIS R. JONES, Bayside - District 4 HARRY E. DIEZEL Kempsville - District 2 ROBERT M. DYER, Centerville - District I REBA S. McCLANAN, Rose Hall - District 3 RICHARD A. MADDOX, Beach - District 6 JIM REEVE, Princess Anne - District 7 PETER W SCHMIDT, At-Large RON A. VILLANUEVA, At-Large ROSEMARY WILSON, At-Large JAMES L. WOOD, Lynnhaven -District 5 CITY MANAGER - JAMES K. SPORE CITY ATTORNEY - LESLIE L. LILLEY City CLERK - RUTH HODGES SMITH, MMC CITY COUNCIL AGENDA 28 FEBRUARY 2006 I. CITY MANAGER'S BRIEFINGS - Conference Room - A. EMERGENCY MEDICAL SERVICES - Staffing and Deployment Bruce Edwards, Chief - EMS B. REAL ESTATE ASSESSMENT ANNUAL REPORT Jerry Banagan, Real Estate Assessor C. MINORITY SUBCONTRACTING - Proposed City Code Changes Patricia Phillips, Director - Department of Finance II. CITY COUNCIL COMMENTS III. REVIEW OF AGENDA ITEMS IV. INFORMAL SESSION - Conference Room - A. CALL TO ORDER - Mayor Meyera E. Oberndorf B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION V. FORMAL SESSION - Council Chamber - CITY HALL BUILDING 2401 COURTHOUSE DRIVE VIRGINIA BEACH, VIRGINIA 23456-8005 PHONE:(757) 427-4303 FAX (757) 426-5669 E-MAIL: Ctycncl@vbgov.com 1:30 PM 4: 00 1M 6:00 P.M. A. CALL TO ORDER - Mayor Meyera E. Oberndorf B. INVOCATION: Reverend Richard Keever Bayside Presbyterian Church C. PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA D. ELECTRONIC ROLL CALL OF CITY COUNCIL E. CERTIFICATION OF CLOSED SESSION F. MINUTES 1. INFORMAL AND FORMAL SESSIONS February 14, 2006 G. AGENDA FOR FORMAL SESSION H. PUBLIC HEARINGS 1. LEASE OF CITY PROPERTY Pieces of Eight, LLC at 2nd Street and Atlantic Avenue (DISTRICT 6 - BEACH) 2. BYRNE MEMORIAL JUSTICE ASSISTANCE GRANT Law enforcement and criminal processing ($102,106) 3. FY 2005-2006 CAPITAL BUDGET AMENDMENT $3,700,000 for ARP property acquisition in the Interfacility Traffic Area 1. CONSENT AGENDA J. ORDINANCES/RESOLUTIONS 1. Ordinances to AMEND the City Code: a. Section 35-182 re exemption of admission taxes for school related activities b. Section 18-75 re business licenses concerning gross receipts of all contractors c. Section 6-12 re riding horses or driving vehicles on the City's beach or dunes d. Section 21-1 to incorporate State Code provisions that prohibit driving while intoxicated (DWI) re Chapter 7, Title 46.2, Article 2 2. Ordinance to AUTHORIZE the City Manager to execute a lease for five and one-half months with PIECES OF EIGHT, LLC (Pirate Cruise) at 2nd Street and Atlantic Avenue at Rudee Loop 3. Ordinance to AUTHORIZE the City Manager to acquire 15.3875 acres of the Lake Smith Fishing Station and adjacent property from the City of Norfolk under the Open Space Acquisition Program to preserve properties surrounding Lake Smith and Lake Lawson 4. Ordinance ESTABLISHING "Transition Rules" re the development of property in the RT-2 Resort Tourist District 5. Ordinance to ACCEPT a donation ofCybex Fitness Equipment from Wareing's Gym to the Police Law Enforcement Training Center 6. Resolution AUTHORIZING the City Manager to expend $30,000 from the Tourism Growth Investment Fund (TGIF)-Oceanfront Special Events to the Virginia Beach Jaycees re the 44th Annual East Coast Surfing Championships (ECSC) 7. Resolution GRANTING Cox Communications of Hampton Roads, LLC (COX) a second extension to their Request for Formal Renewal Proposal to April 24, 2006 re their cable franchise K. PLANNING 1. Application of TIMOTHY B. and TANIA OLDFIELD for the discontinuance, closure and abandonment of a portion of an alley adjacent to Lot 13, Block 13, Croatan Beach, 829 V anderbilt Avenue, to extend the rear property line and incorporate the property into the existing single-family parcel. (DISTRICT 6 - BEACH) RECOMMENDATION: APPROV AL 2. Petition for a Variance to ~ 4.4(b) of the Subdivision Ordinance that requires all newly created lots meet all the requirements of the City Zoning Ordinance (CZO) for SIROUS SHOTORBAN and TARAH KISER at 1516 Mill Dam Road to subdivide an existing parcel into two lots for single-family dwellings. (DISTRICT 5 - L YNNHA VEN) RECOMMENDATION: APPROVAL 3. Application of SPRINT COM, INC. for a Conditional Use Permit re a communication tower at 5648 Campus Drive. (DISTRICT 4 - BA YSIDE) RECOMMENDATION: APPROVAL 4. Applications of HERON RIDGE PROPERTIES II, L.L.C. at 2817 Seaboard Road (DISTRICT 7 - PRINCESS ANNE) a. Change of Zoning District Classification from AG-1 and AG-2 Agricultural District to Conditional R-20 Residential District to develop single-family homes b. Variance to ~4.4 (b) of the Subdivision Ordinance that requires all newly created lots meet all the requirements of the City Zoning Ordinance (CZO) DEFERRED: RECOMMENDATION: February 14, 2006 APPROVAL 5. Applications of RH Builders, Inc. on the east side of Shurney Lane south of Wesleyan Drive (DISTRICT 4 - BA YSIDE) a. Change of Zoning District Classification from B-2 Community Business District to A-36 Apartment District to develop multi-family housing b. Conditional Use Permit re housing for seniors RECOMMENDATION: APPROVAL 6. Application of TANK LINES, INe. for a Change of Zoning District Classification from B-2 Community Business District to Conditional 1-1 Light Industrial District at 1357 Diamond Springs Road to construct an office/warehouse. (DISTRICT 4 - BA YSIDE) RECOMMENDATION: APPROV AL 7. Application of BELLAMY ASSOCIATES, L.C. for a Change of Zoning District Classification from R-7.5 Residential District to Conditional A-18 Apartment District at 4416 Princess Anne Road re multi-family dwellings. (DISTRICT 2 - KEMPSVILLE) RECOMMENDATION: DEFER TO MARCH 14,2006 L. APPOINTMENTS BEACHES and WATERWAYS COMMISSION INVESTMENT PARTNERSHIP ADVISORY COMMITTEE - PPEA MEALS TAX TASK FORCE RESORT ADVISORY COMMISSION (RAC) M. UNFINISHED BUSINESS N. NEW BUSINESS O. ADJOURNMENT THE MAY 2, 2006 SESSION IS CANCELLED DUE TO THE COUNCILMANIC ELECTION. ** * * * * * * * * If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 427-4303 Hearing impaired, call: TDD only 427-4305 (TDD - Telephonic Device for the Deaf) *********** Agenda 02/23/2006\gw www.vbgov.com - 1 - MINUTES VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia 28 February 2006 Mayor Meyera E. Oberndorf called to order the CITY MANAGER'S BRIEFING re EMERGENCY MEDICAL SERVICES in the City Council Conference Room, City Hal!, on Tuesday, February 28,2006, 1:30 PM Council Members Present: Harry E. Diezel, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Peter W Schmidt, Rosemary Wilson and James L. Wood Council Members Absent: Robert M. Dyer [Wife in hospital] Jim Reeve [Entered: 1:40 PM.] Ron A. Villanueva [Entered: Closed Session 4:00 P.M.] February 28,2006 - 2 - CITY MANA GER'S BRIEFING EMERGENCY MEDICAL SERVICES 1:30 P.M. ITEM # 54933 Mayor Oberndorf advised the City Manager was on vacation and recognized Charles Meyer, Chief Operating Officer, who introduced Chief Bruce W Edwards- Emergency Medical Services, to present the third in a series of briefings relative Public Safety Staffing and Deployment. Chief Edwards displayed a chart reflecting EMS Calls for Service by Volume (2001 - 2005). Since 2001, the City's calls for service have increased an average of 3. 5% or 1200 calls annually. This trend is expected to continue into the future. EMS Call Volume is the only public safety service demand that has increased in the last two consecutive years. The top five (5) call types dispatched are: unconscious, illness, cardiac, injurylfall and breathing difficulty. The other category consists of approximately 30 (thirty) call types i.e. seizures, burns, maternities, accidents, et cetera. The greatest number of calls are individuals from sixty-six years of age and older. These account for approximately one-third of all EMS calls. This patient group tends to have multiple or more complex problems. As the population ages, this percentage will only get larger. Emergency Medical Services is a full service department providing a range of special rescue services. EMS is proud of their special teams: Special Operations Incidents Deployments Marine Rescue Vehicle Entrapments SWAT Medics Bike Team SAR Team 221 229 197 38 4 Chief Edwards displayed a map reflecting Geographic Demand. The city is divided into grids of approximately one square mile. Utilizing the grids, the call demands and responses can be plotted to a particular area of the City. The busy zones are highlighted in "purple". Those grids depicted in "yellow" and "white" indicate areas with fewer calls for service. The highest concentration of service calls continues to be within three (3) miles of either side of Interstate 264. As ambulance deployment models are developed, this is an important consideration. Operating Philosophy Integrated system of First Response, Advanced Life Support, Transport Citywide ambulance response Performance measured at the 9(jh percentile level (no averages reported) Average response times are not utilized. EMS data reflects 90% achievement. The 90% percentile indicates the measurement of 90 out of 100 Calls for Service (includes all responses). This percentile measure is much greater than an average. This is a stringent measurement. The Volunteer Rescue Squad system remains strong. There was a net decline in membership during 2003 and 2004. This was attributed to several factors: negative attention impacted morale and some members transitioned to career positions. There has been a net increase in membership for 2005. February 28, 2006 - 3 - CITY MANA GER'S BRIEFING EMERGENCY MEDICAL SERVICES ITEM # 54933 (Continued) Volunteer retention programs have raised morale considerably. Expanded recruiting programs are paying off. (Orientation enrollment up 64%). The goal is to continue with this enrollment trend. Career Personnel Com osition 4 Bri ade Chie s hired in 2004 24 Medics hired in 2004 8 Medics hired in 2005 Advanced Life Support (ALS) delivery Rescue squad augmentation Weekday staffin Four (4) positions are assigned to a Monday through Friday workday schedule, which allows extra ambulances on the streets during the busiest time demand (power shift). Ambulance crews are scheduled under a model which balances a number offactors: geographic coverage, high demand areas and areas with longer travel times. Resources are adjusted in response to call demands. While responding to 2,288 additional calls in 2005 (6.8% increase from 2003), EMS was still able to decrease citywide response times by 19.5% and decrease rural response times by 28.9%. Additional ambulance staffing led to shorter travel times. At least one ambulance crew is assigned to the Shore Drive area. The bulk of service calls are along 1-264. Therefore, this area is assigned additional crews beyond the geographic baseline. There is always a paramedic assigned to Creeds to assist the Rescue Squads with immediate response of an ambulance. A chart indicating Demand vs. Ambulance Response Times was displayed. The response time graph has been overlaid onto the demand chart depicted earlier. As demands have increased since 2001, so did ambulance response times. However, at the addition of the ERS enhancements in 2004, there has been a significant dip in response times, which is related primarily to having more ambulances, and equates to shorter travel times. The data covers all types of calls from low priority illness to heart attacks. These have not been separated by priorities. A graph depicting "First Help and Ambulance" times did not reflect the police response to the most critical call of Cardiac Arrest. This response is consistently one full minute faster than Fire and EMS. Emergency Medical Service's goal is to have an ambulance arrive within six (6) minutes of the first help. However, Chief Edwards would prefer the Priority 1 and 2 achievements be lower. By efforts in the 911 Center, and getting the crews into the trucks faster, some seconds can be "shaved off". The travel time is the largest interval and where EMS will focus their energies. EMS Staffing and Deployment Technology Initiatives Automatic Vehicle Locators (A VL) GPS Mapping Systems Field Reporting Opportunities Princess Anne Commons Careplex Virginia Beach General Hospital Renovations Rapid Cardiac Intervention Project Challenges Increasing Call Demands Aging Population Road System Capacity February 28, 2006 - 4- CITY MANA GER'S BRIEFING EMERGENCY MEDICAL SERVICES ITEM # 54933 (Continued) On the Horizon New Medical Treatment Modalities American Heart Association Guidelines Advanced Airway Techniques Field supervisor force at maximum output Increased staff capacity required to meet increasing demands for the future Charles Meyer advised the pilot Global Positioning System (GPS) program has been funded. In discussions with Resource Management, EMS is attempting to include the GPS in the Automatic Vehicle Locator overall package. Chief Edwards advised the staff is reviewing concerns relative quicker response re ojjloading patients at hospital emergency rooms. The delay is due to hospital overload throughout the region. The new Princess Anne Commons Complex should provide some relief Electronic Field Reporting should also compress the time at the hospital. Chief Edwards was Co-Chair of the Tidewater Emergency Medical Services Regional Diversion Committee for the past two (2) years. Sentara Norfolk General Hospital was being overloaded in the Winter (flu season) and Sentara Virginia Beach General was being overloaded in the Summer (tourist season). Hospitals could not take ambulance patients so they were diverted to another hospital and thus lengthened the travel and response times for the Emergency Medical Services. After meeting with representatives of the hospitals, various processes were developed which eased this problem. Councilman Diezel expressed concern. Information shall be provided which supports eight (8) ambulances per day. Response times shall be depicted in a different format. The location of the ten (10) squads shall be depicted on a map with the four-minute response times blocked out. This would reflect the complexity with geographic and transportation lines. A briefing shall be provided relative this concept. The processing time of the 911 Center needs to be reviewed. With the exception of EMS, protocol screening exists. The only information needed immediately is the incident and address: i.e. house on fire, spouse chocking. After dispatch, the follow up screening could take place. February 28,2006 - 5 - C IT Y MANA G E R 'S B R IE FIN G REAL ESTATE ASSESSMENT ANNUAL REPORT 2:25 P.M. ITEM # 54934 Jerald D. Banagan, Real Estate Assessor, advised on March 3, 2006, the Assessor's Office will mail Notices of Assessment for the Fiscal Year 2007. The City has approximately 148,000 pieces of property with 135,000 homes. Approximately 0.1 % of all properties will receive a decrease in assessment and approximately 98% will receive an increase. The projected assessment is $45,582,234,063, which represents a 21.9% change. Each penny of the tax rate will generate $4,607,000 in revenue for a total tax of $471,734,000 at the current rate of $1.0239. The average assessment change for individual properties is approximately +19.61 %; however, this figure varies citywide depending on the age, type, quality, classification and location of the property. Average Assessment Changes Residential Apartment Commercial/industrial +22.15%, + 9.69% + 9.76% Assessments resulted primarily from sales data of July 2004 thru June 2005. There were 11,333 qualified residential sales with a median ratio of 97%, 265 qualified commercial sales with a median ratio of 96%. The average assessment for a single-family house is $298,900 with an average for all residences being $266,200. The largest assessment increases have been in the most modestly priced properties: town houses and condominiums. Mr. Banagan displayed a graph depicting Average Home Assessment. Over the last three (3) years, a 50% increase is reflected. New construction for the past twelve (J2) months amounted to $629,500,000, which is an increase of 25.8% from the previous year. Residential new construction amounted to 71.9% of the total yearly construction, while commercial/industrial represented 28.1 %. Notable Properties constructed in 2006 Cosmopolitan Apartments Town Center Hilton 3 rt Street/ taxable portion of shops and garage Ocean Beach Time Share Atlantic Avenue Salt Meadow Bay Apartments (only 40% of the project/portion built previous year) Crossings at Red Mill Apartments (portion built previous year) Life Net Building Resource Bank Princess Anne Country Club Residences Inn Atlantic Avenue Car Max $ 46 -MILLION $ 44 -MILLION $ 21 -MILLION $ 16 -MILLION $ 11 -MILLION $ 11 -MILLION $ 9.4 -MILLION $ 5.5 -MILLION $ 5.2 -MILLION $ 5 -MILLION The number of housing units increased which was driven by the 564 apartment units constructed February 28, 2006 - 6 - CITY MANA GER'S BRIEFING REAL ESTATE ASSESSMENT ANNUAL REPORT ITEM # 54934 (Continued) Mr. Banagan advised the Old Dominion Market Study was completed last week. The number of new houses in Hampton Roads has remained at 5,000 for the past few years. This contributed to the development policies and lack of land in the entire region. The average assessment on a new home is $438,000, an increase of 50% over a three-year time frame Fiscal Year 2006-2007 (Projected) Growth Appreciation Assessment Increase 1.6% 19.7% 21.3% TAX INCREMENT FINANCING and SPECIAL SERVICE DISTRICTS Lynnhaven Mall Shopping District TIF Base Year FY 1998 $ 225.3-MILLION Preliminary FY 2007 $ 450.0-MILLION Sandbridge District TIF and SSD Base Year FY 1998 $ 206. I-MILLION Preliminary FY 2007 $1.139 -BILLION Central Business District South TIF Base Year FY 1999 $ 151.8-MILLION Preliminary FY 2007 $ 499.5-MILLION Central Business District SSD Base Year FY 2003 $ 18.5-MILLION Preliminary FY 2007 $ 210.6-MILLION REAL ESTATE TAX EXEMPTION/DEFERRAL/FREEZE SENIOR CITIZENS/DISABLED PERSONS/Fiscal Year 2006 Senior Citizens Exemption 2,710 Freeze 536 Deferral ---11 TOTAL 3,277 Disabled Persons Exemption 1,166 Freeze 96 TOTAL 1,262 TOTAL PROGRAM Exemption 3,876 Freeze 632 Deferral -11 GRAND TOTAL 4,539 February 28, 2006 - 7 - CITY MANA GER 'S BRIEFING REAL ESTATE ASSESSMENT ANNUAL REPORT ITEM # 54934 {Continued} Exemption $ 6,026,651 Average Exemption $ 1,555 Freeze $ 121,152 Average Freeze $ 192 Deferral $ 72,806 Average Deferral $ 2,349 The current State limitations re the tax reliefprogram are income at $52,000 and net worth $200,000. There are several pending legislative Bills to amend this program. The City has reached the State Limits on income for two (2) of the City's programs, Freeze and Deferral, and net worth on all three (3) of the City's programs, Exemption, Freeeze and Deferral. February 28,2006 - 8 - MAY 0 R 'S IN T ROD U C T ION ITEM # 54935 Mayor Oberndoif invited Charles Meyer, Chief Operating Officer, and standing in for the City Manager, to introduce the City's newest member. Charles Meyer, Chief Operating Officer, introduced David Seamon, Sr., the City's new Chief Development Officer (effective February 27, 2006). Mr. Seamon will assist the City Manager by leading activities directly related to the health and growth of the local economy in the Departments of Planning, Economic Development, Conventions and Visitors Bureau, Agriculture, Housing and Neighborhood Preservation, and Museums and Cultural Arts Mr. Seamon was formerly Assistant City Manager for Development and Finance for the City of Kansas City, Missouri. Before this, he was Director of the Missouri Department of Economic Development's Division of Business Development and Trade from 2003 to 2005. David holds a Master of Business Administration degree from Wake Forest University and has completed coursework for a Master of Global Affairs degree from the Fletcher School of Law and Diplomacy at Tufts University. He has also studied European business at Oxford University. February 28,2006 - 9 - C IT Y MANA G E R 'S B R IE FIN G MINORITY SUBCONTRACTING 2:43 P.M. ITEM # 54936 Patricia Phillips, Director of Finance, presented information re Proposed Procurement Ordinance Changes to Encourage Contracting and Subcontracting with Woman-Owned and Minority-Owned Businesses. The proposed changes will require a Woman and Minority Participation Plan for construction contracts over $50,000 and all Request for Proposals. The awards will still be made to the lowest responsible and responsive bidder. The goal is to strengthen and clarify the City Code in this important area. In November 2004, the City's Minority Business Council (MBC) presented proposed initiatives to City Council. Currently, Minority-owned businesses receive about 2% of City business and woman-owned businesses receive about 1.8% of City business. Mrs. Phillips expressed appreciation to City Attorney Leslie Lilley, Assistant City Attorney Jaime Tyler, Purchasing Agent William Davis, Dean Block, Director - Department of Public Works, Phil Davenport - Public Works Business Manager, Tom Leahy, Director - Public Utilities, Gary Jones - Public Utilities, the Minority Business Council and Barbara Booker- Williams - Minority Business Coordinator. The Department of Economic Development is in the process of adding a business representative who would focus on Minority Businesses and this process is near conclusion. Proposed Amendment General Overview Require a Woman and Minority Participation Plan for all construction contracts in excess of$50, 000 and all Requestfor Proposals (RFP's). Notice to all Woman and Minority-Owned businesses in database regarding each construction Invitation for Bid (IRE) over $50,000 and for all Request for Proposals (RFP's). Invitation for Bid (IRE) for goods and services over $50,000 will be sent to at least three (3) woman or minority-owned businesses, if possible. Failure to submit a Woman and Minority Participation Plan shall result in a bid being declared nonresponsive. Mrs. Phillips defined "Minority-Owned Business": 51 % owned and controlled by one or more socially and economically disadvantage persons and includes (but not limited to) Black Americans, Hispanic Americans, Asian Americans, Eskimos and Aleuts. Mrs. Phillips distributed a Matrix to detail each proposed revision to the City Code. Said information is hereby made a part of the record. Currently the City Code does not provide a definition of Woman and Minority Participation Plan nor Woman-Owned Business. February 28,2006 - 10- C IT Y MANA G E R 'S B R IE FIN G MINORITY SUBCONTRACTING ITEM # 54936 (Continued) Definitions Proposed Amendment Adds Definition of Woman and Minority Participation Outlines ten (IO) issues a contractor must address Adds Definition of "Woman-Owned business" Business or other entity that is at least fifty-one percent owned and controlled by a woman or women. Current Good Faith efforts: defined to include sum total of efforts to provide for equitable participation of minority employees and subcontractors. Proposed Broaden definition of good faith efforts to include the sum total of efforts to provide for the equitable participation of woman employees and subcontractors Construction Contracts Current Notice to all minority-owned business on list for IFB in excess of $15,000 Proposed Noticefor IFB in excess of$50,000 Adds requirement for notice to Woman-owned business Current Every bid in excess of $15,000 is required to have a statement of good faith Minority-owned participation efforts Proposed Increase to $50,000 Require a Woman and Minority Participation Plan for all bids in excess of $50, 000 Current Failure to submit a statement of good-faith effort is treated as an informality Proposed Failure to submit a Woman and Minority Participation Plan shall result in a bid being declared nonresponsive Current Prior to final payment, all construction contractors must provide documentation regarding the actual good faith Minority-owned business participation efforts undertaken in connection with the contract February 28, 2006 - 11 - CITY MANA GER 'S BRIEFING MINORITY SUBCONTRACTING ITEM # 54936 (Continued) Proposed Prior to final payment, each construction contractor shall submit a report documenting its efforts undertaken in compliance with its Woman and Minority Participation Plan Current Failure to submit documentation of actual good faith Minority-owned business participation efforts prior to final payment is not addressed Proposed A contractor will not receive final payment until he submits documentation of actual woman and Minority-owned business participation efforts. If contractor fails to submit documentation of actual woman and Minority-owned business participation efforts prior to final payment, the contractor may be debarred from contracting with the City for a period of up to two (2) years. Current Compliance is not addressed Proposed If actual woman and minority participation substantially deviates below the levels outlined in the Woman and Minority Participation Plan, the contractor shall provide an explanation for the deviation. The City shall, in its sole discretion, determine whether reasonable justification for the deviation exits. In the event that there is not reasonable justification for the deviation, or in the event that the contractor fails to submit an explanation for the deviation. the contractor may be debarred from contracting with the City for a period of up to two (2) years. Requests for Proposals (RFPs) Current No notice is required to woman and Minority-owned businesses regarding requests for proposals for City contracts Proposed The purchasing agent shall provide notice of all Request For Proposal's (RFPs) to all woman and Minority-owned businesses on the list maintained by the purchasing agent. February 28,2006 - 12 - C IT Y MANA G E R 'S B R IE FIN G MINORITY SUBCONTRACTING ITEM # 54936 (Continued) Current Every proposal submitted in response to a request for proposals must contain a statement setting forth good faith Minority-owned business participation efforts Proposed All contractors responding to a Request For Proposal (RFP) must include a Woman and Minority Participation Plan Current Failure to submit a statement of good-faith efforts is treated as an informality Proposed Failure to submit a Woman and Minority participation Plan shall result in a bid being declared nonresponsive Current No requirement to provide documentation regarding the actual good faith Minority-owned business participation efforts undertaken in connection with the contract Proposed Prior to final payment, each construction contractor shall submit a report documenting its efforts undertaken in compliance with its final Woman and Minority Participation Plan. Current Failure to submit documentation of actual good faith Minority-owned business participation efforts prior to final payment is not addressed Proposed A contractor will not receive final payment until he/she submits documentation of actual woman and Minority-owned business participation efforts If a contractor fails to submit a documentation of actual woman and Minority-owned business participation efforts prior to final payment, the contractor may be debarred from contracting with the City for a period of up to two (2) years. Current Failure to comply with the statement of good faith efforts IS not addressed February 28, 2006 - 13 - C IT Y MANA G E R 'S B R IE FIN G MINORITY SUBCONTRACTING ITEM # 54936 (Continued) Proposed If actual woman and Minority participation substantially deviates below the levels in the Plan, the contractor shall explain the deviation. The City shall determine whether reasonable justification for deviation exits. In the event that there is not reasonable justification for the deviation, or in the event the contractor fails to submit an explanation for the deviation, the contractor may be debarred from contracting with the City for a period of up to two (2) years. Goods & Services Current Solicitations for contracts for the provision of goods and services for more than $15,000 shall include at least three (3) Minority-owned businesses Proposed Increase $15,000 to $50,000. Solicitations under $50,000 will be addressed in the Procurement Manual. Solicitations for contracts over $50,000 shall include at least three (3) woman-owned or minority-owned businesses. Ordinance Administration No change in award basis Contractors will be required to report on actual Woman and Minority participation compared to plan they submit Form will be provided Purchasing manual will be updated to reflect changes William Davis, Purchasing Agent, advised only one (1) contractor has been listed on the City's debarred list. Mrs. Phillips advised the staff wishes to take the least restrictive approach to encourage Minority participation. The low bid should receive the award. The challenge will be to encourage the subcontractors to be competitive. The City will not be aware of the bids in the Minority Business Participation Plan, but will request the contractor to disclose what Minority firms are intended to be utilized and their method payment. Associate City Attorney Rod Ingram advised debarment is subject to the Freedom of Information Act and would have to be disclosed. February 28, 2006 - 14- CITY MANA GER 'S BRIEFING MINORITY SUBCONTRACTING ITEM # 54936 (Continued) Barbara Booker- Williams, the Minority Business Coordinator, advised the challenges re not having an existing infrastructure re the utilization and availability of woman and Minority owned companies. Mrs. Booker- Williams has been meeting with companies and introducing them to the representatives of Public Works, Public Utilities. This is an incremental process and is contributing toward the growth of the data base. Council Lady McClanan referenced the Virginian-Pilot article of Friday, February 24, 2006 entitled: "In Beach and elsewhere, bidding process changes" by Marisa Taylor. Said article is hereby made a part of the record. Council Lady McClanan requested staff respond with data concerning former City employees bidding for City contract work. Information shall be provided. The City Attorney referenced an Ordinance ADOPTED July 8, 2003: Ordinance to AMEND the City Code by ADDING Sections 2-23,2-91 and 2-451 pertaining to post-employment activities of former Council Members, officers, employees and certain appointees The City Attorney will provide information and a copy of this ordinance. February 28, 2006 - 15 - CITY COUNCIL COMMENTS 3:37 P.M. ITEM # 54937 Councilman Diezel referenced at the Town Hall Meeting for the residents of Kempsville and Centerville, Thursday, February 23, 2006, Salem High School, at 7:00 P.M. The meeting commenced with a statement that everybody at this table had stated they were not for condemning homes for redevelopment by private developers. This was followed by a citation from the Comprehensive Plan interpreted that the Plan is encouraging a Redevelopment and Housing Authority. A question arose: "Would anyone take up the challenge to balance public comments with the written policy?" Councilman Diezel requested, after the results of the Referendum are published, City Council consider if the language in the Comprehensive Plan is at odds with the City Council's philosophical policy, then the Comprehensive Plan will need to be reviewed and/or changed. Mayor Oberndorf referenced attending the United States Conference of Mayor's Leadership Meeting. Two (2) items dominated the conversations: (a) horrendous decision by the Supreme Court and, (b) Port Security as has been reported in the newspaper. ITEM # 54938 Vice Mayor Jones and Councilman Wood, Liaisons, distributed a Summary Report of the Shore Drive Safety Task Force. The Resolution establishing the Shore Drive Safety Task Force was adopted on December 20, 2005. The Shore Drive Safety Task Force had their first meeting January 10, 2006. The purpose of the first meeting of the Task Force was to establish the area of Shore Drive to be studied and then brainstorm ideas for safety improvements. Meetings were conducted on January 31, February 17 and February 21,2006. After the final meeting, staff will prepare a draft report of the recommendations of the Shore Drive Safety Task Force to be presented to the Shore Drive Advisory Committee on March 16, 2006, and then to the City Council on March 28, 2006. The DRAFT report will include short, mid and long-term recommendations in the areas of regulatory, infrastructure and public information. Charles Meyer, Chief Operating Officer, was an excellent facilitator. This information is hereby made a part of the record. Robert Scott, Director of Planning, referenced the encroachments contained within the report. Shore Drive, when platted, was an irregular right-of-way. Railroad elements existed with circular areas and serve no particular function at the present time. There are approximately twelve (12) areas along Shore Drive containing encroachments on public property. The Don Julios right-of-way encroachments involving parking (indicated in "blue '') is probably one of the larger examples. All the encroachments should be addressed. February 28, 2006 - 16 - AGE N DA REV IE W S E S S ION 3:50 P.M. ITEM # 54939 1. Ordinance to AMEND the City Code: c. Section 6-12 re riding horses or driving vehicles on the City's beach or dunes Councilman Reeve advised Eugene W Hansen, President-elect Virginia Horse Council, and Member- City's Bikeways and Trails Advisory Committee had expressed concern. Mike Eason, Resort Services Co-ordinator, Convention and Visitors Bureau, had just been informed of Mr. Hanson's concerns. Associate City Attorney Rod Ingram just spoke to Mr. Hansen. A revision was distributed: "The provisions of this section shall not apply to conduct in the resort area that is explicitly authorized by a Special Events permit issued pursuant to City Code Section 6-12" This is a pilot program for evaluation utilizing a total of six (6) horses on a "trail" ride. Concerning waste on the beach, the horses wear a "bun". Councilman Maddox requested the Ordinance be further REVISED, to contain a sunset provision. "Unless otherwise extended by City Council, this subsection shall sunset effective February 28,2007. " The City Clerk advised Mr. Hansen had withdrawn his objection Council Lady McClanan shall vote a VERBAL NAY on this item. ITEM # 54940 2. Ordinance to A UTHORIZE the City Manager to execute a lease for five and one-half months with PIECES OF EIGHT, LLC (Pirate Cruise) at 2nd Street and Atlantic Avenue at Rudee Loop Councilman Maddox advised the City owns a vacant piece of unimproved real property approximately 0.34 acres and located at 2nd Street and Atlantic Avenue in the Rudee Loop area. Pieces of Eight, LLC has requested to lease the property to provide a satellite parking space for its new Pirate Cruise tourist attraction. The lease is for 5 Y2 months commencing on May 1 and ending on October 15, 2006. February 28, 2006 - 17 - AGE N DA REV IE W S E S S ION ITEM # 54941 3. Ordinance ESTABLISHING "Transition Rules" re the development of property in the RT-2 Resort Tourist District On December 20, 2005, the City Council adopted an Ordnance amending zoning regulations applicable in the RT-1, RT-2 and RT-3 Resort Tourist Districts. The ordinance amendments became effective as of the date of adoption. The proposed ordinance establishes Transition Rules for site plans and subdivision plats in he RT-2 Resort Tourist District. It provides that site plans and subdivision plats that are submitted by the close of business on May 1, 2006, shall be subject to the RT-2 District Zoning regulations that were in effect prior to the December 20, 2005 amendments. The City Attorney distributed a Revision as the Navy is concerned about density in the Resort Area. The following verbiage shall be added on line 51. d. "The application of these rules shall not result in any increase in density over that allowed by the ordinances and regulations of the City applicable to such property on December 19,2005." Councilman Maddox advised there were extenuating circumstances relative the application of Richard Kowalewitch. He submitted his plans in August or September 2005. Stephen White, Planning, advised the staff has been working with two (2) properties located in the RT-2 District and are in a similar situation as Mr. Kowalewitch. In order to have multi-family in the RT-2, another use must be present on the ground floor, i. e. retail/recreation (something other than residential use). These applicants are amending their plans. Mayor Oberndorf advised the Navy still has not "signed off" on the Joint Land Use Study. Mayor Oberndorf believes everyone will expect the same courtesy as Mr. Kowalewitch. Robert Scott, Director of Planning, expressed concern. Mr. Scott advised all the elements of Mr. Kowalewitch's plan can still be present, but must be arranged differently on the site. Councilman Maddox suggested this item be DEFERRED for one week. This item shall be discussed during the Formal Session. ITEM # 54942 6. Resolution AUTHORIZING the City Manager to expend $30,000 from the Teurism Grewt-h !1'l';cstmCflt Fund (TGIF) Oceanfrent Special E';cnts $15.000 from the Tourism Advertising Program Svecial Reserve Fund and $15.000 from the General Fund of the Citv of Virginia Beach to the Virginia Beach Jaycees re the 44th Annual East Coast Surfing Championships (ECSC) (Requested by Council Members Maddox, Reeve and Villanueva) A revision was distributed. February 28,2006 - 18 - AGE N DA REV IE W S E S S ION ITEM # 54943 BY CONSENSUS, the following items shall compose the CONSENT AGENDA: 1. ORDINANCES/RESOLUTIONS 1. Ordinances to AMEND the City Code: a. Section 35-182 re exemption of admission taxes for school related activities b. Section 18-75 re business licenses concerning gross receipts of all contractors c. Section 6-12 re riding horses or driving vehicles on the City's beach or dunes d. Section 21-1 to incorporate State Code provisions that prohibit driving while intoxicated (DWI) re Chapter 7, Title 46.2, Article 2 2. Ordinance to AUTHORIZE the City Manager to execute a lease for five and one-halfmonths with PIECES OF EIGHT, LLC (Pirate Cruise) at 2nd Street and Atlantic Avenue at Rudee Loop 3. Ordinance to AUTHORIZE the City Manager to acquire 15.3875 acres of the Lake Smith Fishing Station and adjacent property from the City of Norfolk under the Open Space Acquisition Program to preserve properties surrounding Lake Smith and Lake Lawson 5. Ordinance to ACCEPT a donation ofCybex Fitness Equipmentfrom Wareing's Gym to the Police Law Enforcement Training Center 6. Resolution AUTHORIZING the City Manager to expend 30,000 from the Te'blrism Grewth !1'l'.'estment F'blnd (TGIF) Ocearifrellt Special E'.'ents $15.000 from the Tourism Advertising Program Svecial Reserve Fund and $15.000 from the General Fund of the Citv of Virginia to the Virginia Beach Jaycees re the 44th Annual East Coast Surfing Championships (ECSC) 7. Resolution GRANTING Cox Communications of Hampton Roads, LLC (COX) a second extension to their Request for Formal Renewal Proposal to April 24, 2006 re their cable franchise Item 1.1c. shall be ADOPTED, AS REVISED, BY CONSENT. Council Lady McClanan will vote a VERBAL NA Y. Item 1.6. shall be ADOPTED, AS REVISED, BY CONSENT. February 28, 2006 - 19 - AGE N DA REV IE W S E S S ION ITEM # 54944 4. Applications of HERON RIDGE PROPERTIES II, L.L.C. at 2817 Seaboard Road (DISTRICT 7 - PRINCESS ANNE) a. Change of Zoning District Classification from AG-l and AG-2 Agricultural District to Conditional R-20 Residential District to develop single-family homes b. Variance to 94.4 (b) of the Subdivision Ordinance that requires all newly created lots meet all the requirements of the City Zoning Ordinance (CZO) Associate City Attorney Kay Wilson distributed a revised proffer. This item shall be discussed during the Formal Session. ITEM # 54945 BY CONSENSUS, the following items shall compose the PLANNING BY CONSENT AGENDA: K. PLANNING 1. Application of TIMOTHY B. and TANIA OLDFIELD for the discontinuance. closure and abandonment of a portion of an alley adjacent to Lot 13, Block 13, Croatan Beach, 829 Vanderbilt Avenue, to extend the rear property line and incorporate the property into the existing single-family parcel. (DISTRICT 6 - BEACH) 2. Petition for a Variance to 9 4.4(b) of the Subdivision Ordinance that requires all newly created lots meet all the requirements of the City Zoning Ordinance (CZO) for SIROUS SHOTORBAN and TARAH KISER at 1516 Mill Dam Road to subdivide an existing parcel into two lots for single-family dwellings. (DISTRICT 5 - LYNNHA VEN) 3. Application of SPRINTCOM, INC. for a Conditional Use Permit re a communication tower at 5648 Campus Drive. (DISTRICT 4 - BAYSIDE) 5. Applications of RH Builders, Inc. on the east side of Shurney Lane south of Wesleyan Drive (DISTRICT 4 - BAYSIDE) a. Change of Zoning District Classification from B-2 Community Business District to A-36 Apartment District to develop multi-family housing b. Conditional Use Permit re housing for seniors 6. Application of TANK LINES, INC. for a Change of Zoning District Classification from B-2 Community Business District to Conditional I-I Light Industrial District at 1357 Diamond Springs Road to construct an office/warehouse. (DISTRICT 4 - BAYSIDE) Mayor Oberndorf and Council Lady McClanan will vote a VERBAL NAY on Item K.5a.b. February 28,2006 - 20- ITEM # 54947 Mayor Meyer E. Oberndorf entertained a motion to permit City Council to conduct its CLOSED SESSION, pursuant to Section 2.1-344(A), Code of Virginia, as amended, for the following purpose: PERSONNEL MATTERS: Discussion, consideration or interviews of prospective candidates for employment, assignment, appointment, promotion, performance, demotion, salaries, disciplining or resignation of specific public officers, appointees or employees pursuant to Section 2.2-3711 (A) (I). To Wit: Appointments: Boards and Commissions: Beaches and Waterways Commission Investment Partnership Advisory Committee- PPEA Meals Tax Task Fore Resort Advisory Commission - RAC PUBLICLY-HELD PROPERTY: Discussion or consideration of the condition, acquisition, or use of real property for public purpose, or of the disposition of publicly-held property, or of plans for the future of an institution which could affect the value of property owned or desirable for ownership by such institution pursuant to Section 2.2-3711 (A)(3). Beach District LEGAL MATTERS: Consultation with legal counselor briefings by staff members, consultants, or attorneys pertaining to actual or probable litigation, or other specific legal matters requiring the provision of legal advice by counsel pursuant to Section 2.2-3711 (A)(7). BRAC Public Safety Employment Practices Upon motion by Councilman Schmidt, seconded by Councilman Wood, City Council voted to proceed into CLOSED SESSION (3:37 P.M.). Voting: 9-0 Council Members Voting Aye: Harry E. Diezel, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M Dyer [Wife in hospital] Ron A. Villanueva [Entered Closed Session: 4:00 P.M.] (Closed Session: 3:40 P.M. - 5:50 P.M.) (Break: 3:40 P.M. - 3:48 P.M.) Dinner: 5:50 P.M. - 6:00 P.M.) February 28, 2006 - 21 - FORMAL SESSION VIRGINIA BEACH CITY COUNCIL February 28, 2006 6:00 P.M. Mayor Meyer E. Oberndorf called to order the FORMAL SESSION of the VIRGINIA BEACH CITY COUNCIL in the Council Chamber, City Hall Building, on Tuesday, February 28, 2006, at 6:00 P.M. Council Members Present: Harry E. Diezel, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Absent: Robert M Dyer [Wife in hospital} INVOCATION: Reverend Richard Keever Bayside Presbyterian Church PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA Council Lady Rosemary Wilson DISCLOSED her husband is a principal in the accountingfirm of Goodman and Company and is directly and indirectly involved in many of Goodman and Company's transactions. However, due to the size of Goodman and Company and the volume of transactions it handles in any given year, Goodman and Company has an interest in numerous matters in which her husband is not personally involved and of which she does not have personal knowledge. In order to ensure her compliance with both the letter and the spirit of the State and Local Government Conflict of Interests Act, it is her practice to thoroughly review the agenda for each meeting of City Council for the purpose of identifying any matters in which she might have an actual or potential conflict. If, during her review she identifies any matters, she will prepare andfile the appropriate disclosure letter to be recorded in the official records of City Council. Council Lady Wilson regularly makes this disclosure. Council Lady Wilson's letter of January 27,2004, is hereby made a part of the record. Council Lady Rosemary Wilson DISCLOSED she is a real estate agent affiliated with Prudential Decker Realty. Because of the nature of Real Estate Agent affiliation, the size of Prudential, and the volume of transactions it handles in any given year, Prudential has an interest in numerous matters in which she is not personally involved and of which she does not have personal knowledge. In order to ensure her compliance with both the letter and the spirit of the State and Local Government Conflict of Interests Act, it is her practice to thoroughly review the agenda for each meeting of City Council for the purpose of identifying any matters in which she might have an actual or potential conflict. If, during her review she identifies any matters, she will prepare and file the appropriate disclosure letter to be recorded in the official records of City Council. Council Lady Wilson regularly makes this disclosure. Council Lady Wilson's letter of January 27, 2004, is hereby made a part of the record. February 28, 2006 - 22- Item V-E. CERTIFICATION OF CLOSED SESSION ITEM # 54948 Upon motion by Councilman Schmidt, seconded by Council Lady Wilson, City Council CERTIFIED THE CLOSED SESSION TO BE IN ACCORDANCE WITH THE MOTION TO RECESS. Only public business matters lawfully exempt from Open Meeting requirements by Virginia law were discussed in Closed Session to which this certification resolution applies. AND, Only such public business matters as were identified in the motion convening the Closed Session were heard, discussed or considered by Virginia Beach City Council. Voting: 10-0 Council Members Voting Aye: Harry E. Diezel, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M Dyer February 28, 2006 RESOLUTION CERTIFICATION OF CLOSED SESSION VIRGINIA BEACH CITY COUNCIL WHEREAS: The Virginia Beach City Council convened into CLOSED SESSION, pursuant to the aflirmative vote recorded in ITEM #5494~ page 20, and in accordance with the provisions of The Virginia Freedom of Information Act; and, WHEREAS: Section 2.2-3711 (A) of the Code of Virginia requires a certification by the governing body that such Closed Session was conducted in conformity with Virginia law. NOW, THEREFORE, BE IT RESOLVED: That the Virginia Beach City Council hereby certifies that, to the best of each member's knowledge, (a) only public business matters lawfully exempted from Open Meeting requirements by Virginia law were discussed in Closed Session to which this certification resolution applies; and, (b) only such public business matters as were identified in the motion convening this Closed Session were heard, discussed or considered by Virginia Beach City Council. ~4~.-=- uth Hodges Smith, MMC City Clerk February 28, 2006 - 23 - Item V-F. 1. MINUTES ITEM #54949 Upon motion by Council Lady Wilson, seconded by Councilman Schmidt, City Council APPROVED Minutes of the INFORMAL AND FORMAL SESSIONS of February 14,2006. Voting: 10-0 Council Members Voting Aye: Harry E. Diezel, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M. Dyer February 28,2006 Item V-G. ADOPT AGENDA FOR FORMAL SESSION BY CONSENSUS, City Council ADOPTED: - 24- ITEM #54950 AGENDA FOR THE FORMAL SESSION February 28, 2006 - 25 - Item V-H.1. PUBLIC HEARING ITEM #54951 Mayor Meyera E. Oberndorf DECLARED A PUBLIC HEARING: LEASE OF CITY PROPERTY Pieces of Eight, LLC at 2nd Street and Atlantic Avenue (DISTRICT 6 - BEACH They're being no speakers; Mayor Oberndorf CLOSED THE PUBLIC HEARING. February 28, 2006 - 26- Item V-H.2. PUBLIC HEARING ITEM #54952 Mayor Meyera E. Oberndorf DECLARED A PUBLIC HEARING: BYRNE MEMORIAL JUSTICE ASSISTANCE GRANT Law enforcement and criminal processing ($102,106) They're being no speakers, Mayor OberndorfCLOSED THE PUBLIC HEARING. February 28, 2006 - 27 - Item V-H.3. PUBLIC HEARING ITEM #54953 Mayor Meyera E. Oberndorf DECLARED A PUBLIC HEARING: FY 2005-2006 CAPITAL BUDGET AMENDMENT $3,700,000 for ARP property acquisition in the Interfaculty Traffic Area They're being no speakers; Mayor Oberndoif CLOSED THE PUBLIC HEARING. February 28,2006 - 28 - Item v.J. ORDINANCES/RESOLUTIONS ITEM # 54954 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council APPROVED IN ONE MOTION Items Ia/blc, Id (AS REVISED), 2, 3, 5, 6 (AS REVISED) and 7 of the CONSENT AGENDA. Voting: IO-O (By Consent) Council Members Voting Aye: Harry E. Diezel, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M Dyer Council Lady McClanan shall vote a VERBAL NAY on Item I.d. February 28, 2006 - 29- Item V.J.1.a/b/d ORDINANCES/RESOLUTIONS ITEM # 54955 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Ordinances to AMEND the City Code: a. Section 35-182 re exemption of admission taxes for school related activities b. Section 18-75 re business licenses concerning gross receipts of all contractors d. Section 21-1 to incorporate State Code provisions that prohibit driving while intoxicated (DWI) re Chapter 7, Title 46.2, Article 2 Voting: 10-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M Dyer February 28, 2006 1 2 3 4 AN ORDINANCE TO AMEND SECTION 35-182 OF THE CITY CODE PERTAINING TO ADMISSION TAXES SECTION AMENDED: ~ 35-182 5 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF 6 VIRG INIA BEACH, VIRGINIA: 7 That Section 35-182 of the City Code is hereby amended and 8 reordained, to read as follows: Sec. 35-182. Levy of taxes; administration. classification; amount; 9 10 11 12 (a) Classifications. Pursuant to Code of Virginia section 13 58.1-3817, events to which admission is charged are divided into 14 the following classes, and there are hereby imposed and levied 15 the following taxes: 16 (1) School-sponsored events. No tax shall be imposed or 17 levied on the admission charge to attend any event at a public or private elementary, secondary, or college 18 school-sponsored event, including any event sponsored 19 20 by a school-recognized student organization. lI. tax of 21 ten percent of the admiooion charge for attendance at 22 public and private ochool elementary, oecondary, and 23 college ochool 3pon3ored eJent3, including event3 24 oponoored by 3chool recognized otudent organization3. 25 (2) Museums, gardens and zoos. A tax of ten (10) percent 26 of the admission charge for entry into museums, 27 botanical or other similar gardens, and zoos. 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 (3 ) Participatory sports. A tax of five (5) percent of the amount charged to participate in the following participatory sports: golf courses, tennis, bowling, swimming, roller skating, billiards, and sport fishing boats. Admission charges for spectators who observe, but do not participate in, these sports shall be taxed at the rate imposed and levied by subsection 35- 182 (a) (4). The tax levied by this subsection applies only to the participatory sports enumerated above. (4) Admissions generally. A tax of ten (10) percent of the admission charge for all other admissions, including admissions to any place of amusement or entertainment. As used ln this section, "place of amusement or entertainment" shall mean any place or event open to the public and located in the city where amusements and entertainments, including but not limited to the following, conducted: are located, performed, exhibited or (i) Any motion picture, play, concert, dance or stageshow; (ii) Any sporting or athletic contest, exhibition or even t ; (iii)Any circus, carnival, fair or amusement park; 2 51 52 53 54 55 56 57 58 59 60 61 (iv) Any sporting or recreational activity, excluding any participatory sport enumerated in subsection 35-182 (a) (3), for which participants are charged to enter the arena or facility; (v) Any lecture, speech or dissertation; (vi) Any show, display or exhibition (e.g., antique show, art exhibition, boat show, car show, computer show, craft show, wine tasting, etc.); and (vii) or club. (b) Admissions; gross receipts to charities. Subject to Any restaurant, tavern, lounge, bar, cabaret 62 the conditions set forth below in subsection (d), no tax shall 63 be imposed or levied on the admission charge to attend an event 64 if, as described ln Code of Virginia section 58.1-3817, the 65 gross receipts from the event go wholly to charitable purposes. 66 (c) Admissions; net proceeds to charities. Subject to the 67 conditions set forth below in subsection (d), no tax shall be 68 levied on an event if, as described in Code of Virginia section 69 15.2-1104.1, its purpose is solely to raise money for charitable 70 purposes and the net proceeds derived from the event are 71 transferred to an entity exempt from sales and use tax pursuant 72 to Code of Virginia sections 58.1-609.4, 58.1-609.7, 58.1-609.9 73 or 58.1-609.10. For purposes of this subsection, "net proceeds" 74 means the gross receipts derived from an event less the direct, 3 75 ordinary and necessary costs associated with conducting the 76 event. The phrase "direct, ordinary and necessary costs," as 77 used herein, shall not include any allocable costs attributable 78 to the event organizer I s ongoing expenses, such as accounting 79 fees, insurance premiums or the salaries of officers and staff. 80 (d) Conditions and procedures relating to subsections (b) 81 and (c). An "event", as described in preceding subsections (b) 82 and (c), is an occasional or irregular fund-raising acti vi ty, 83 not exceeding forty-eight (48) hours ln length, the gross 84 receipts or net proceeds of which go wholly to "chari table 85 purposes" as defined in Code of Virginia section 57-48. The 86 following conditions and administrative procedures shall apply 87 to all such events: 88 89 90 91 92 93 94 95 96 97 98 (1) The gross receipts or net proceeds must go to an entity (i) organized exclusively for charitable purposes, as reflected in its articles of incorporation, charter or bylaws, (ii) designated by the Internal Revenue Service as a 50l(c)(3) organization to which contributions are tax deductible under 26 D.S.C. & 7701, and (iii) registered with, or granted Virginia an exemption from registration by, the Department of Agriculture and Consumer Services, Division of Consumer Affairs, Charitable Solicitation Section. Furthermore, any professional 4 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 solicitor conducting or promoting any such event shall also be required to provide evidence of registration with, or exemption from registration by, the Virginia Department of Agriculture and Consumer Services, Division of Consumer Affairs, Charitable Solicitation Section. (2) All determinations concerning the taxable status of events described in this subsection shall be made by the commissioner of the revenue on an event-by-event basis. (3) Any person or organization seeking a determination that an event is not subject to taxation pursuant to this subsection shall apply to the commissioner of the revenue's office at least thirty (30) days prior to such event. All such determinations shall be made only by the commissioner of the revenue. The applicant shall supply, on forms provided by the commissioner of the revenue, a description of the event, the cost of admissions to the even t , documentation of the chari table purpose (s) for which the proceeds will be used, a copy of any exemption from sales and use tax (if applicable), evidence of compliance with Code of Virginia section 57-49, and such other information as may be required by the commissioner of the revenue. 5 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 Within fifteen (15) days of receipt of an application, the comm1ss1oner of the revenue shall make a preliminary determination as to whether the proposed event is subject to the admissions tax. Within forty- five (45) days of conclusion of the event, the applicant shall provide documentation that the gross receipts or net proceeds of the event have been utilized in accordance with the requirements of subsection (b). The failure of any person to obtain a determination that an even t is no t subject to taxation, to supply evidence of compliance with Code of Virginia section 57-49, or to otherwise fail to comply with the requirements of this subsection, shall subject the event to being taxed at the rate provided by subsection (a) (4) . (4) Within sixty (60) days after the end of each fiscal year, the commissioner of the revenue shall provide the city manager a list of all events benefiting benefitting charity for which no admissions tax was paid, and an estimate of the total amount of tax that would have otherwise been paid. (e) All taxes levied by this section shall be paid by the 145 person who pays the charge for admission or participation. 6 146 (f) All determinations concernlng the classification of 147 events and the applicable tax rate shall be made by the 148 commissioner of the revenue. 149 Adopted by the Council of the City of Virginia Beach, 150 Virginia, on the ?Rt-h day of 1<'E'hrll<;lry , 2006. Approved As To Legal Sufficiency: Approved As to Content: :PI , Jd1n11 If ~ City Attorney's ffi~ CA9730 H:\PA\GG\OrdRes\Proposed\35-182 R-4 February 17, 2006 Admissions Tax Ord 7 1 AN ORDINANCE TO AMEND THE CITY CODE PERTAINING 2 TO BUSINESS LICENSES BY UPDATING PROVISIONS 3 CONCERNING CONTRACTORS 4 5 SECTION AMENDED: ~ 18-75 6 7 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 8 BEACH, VIRGINIA: 9 10 That Section 18-75 of the City Code is hereby amended and 11 reordained, to read as follows: Sec. 18-75. Contractors and persons constructing house13 for subsequent sale or rental. 12 13 14 15 (a) Subject to the provisions of section 58.1-3715 of the 16 Code of Virginia, the license tax rate for every person engaged in 17 any contracting service business shall be 0.16 percent of the gross 18 receipts in such business during the preceding calendar year. 19 Contract service businesses referred to in this subsection shall 20 include those businesses set out below and any miscellaneous 21 contract service business not elsewhere classified: 22 (1) General building contractors. 23 (2) Highway and street construction. 24 (3) Heavy construction. 25 (4) Special trade contractors: 26 a. Plumbing, heating and air-conditioning. 27 b. Painting, paper hanging and decorating. 28 c. Electrical. 29 d. Masonry, stone setting and other. 30 e. Stonework. 1 31 32 33 34 35 36 37 38 39 40 41 42 f. g. h. m. n. p. q. 1. Plastering and lathing. Terrazzo, tile, marble and mosaic work. Carpentering. Floor laying and other f1oorwork. Roofing and sheet metal work. Concrete work. Structural steel erection. Ornamental metal work. Glass and glazing work. Excavating and foundation work. Wrecking and demolition work. Removing contents of privies, cesspools, septic J . k. 1. o. 43 tanks and other similar facilities. 44 (b) l.:ny peroon engaged in the bU:Jineoo of erecting or 45 con3tructing office buildingo, mote10, hotelo, condominiumo, houoeo 46 or any other 3tructureo ouitable for habitation for the purpooe of 47 oelling the OUffie, not employing therefor 0. contractor or peroon \Jho 48 ohall act 0.0 ouperintendent 'i,;ho hao paid the licenoe tax required 49 by 1m.., ohall Persons who subdivide and improve real estate, and 50 speculative builders who build houses or other buildings with the 51 intention of offering the subdivided lots or completed buildings 52 for sale, shall be considered contractors and pay ft the license tax 53 as provided in subsection (a) of this section for 0. peroon engaged 54 in bU:Jine:J:J 0.0 0. contractor on the gross receipts from the sale of 55 the real estate or building(s); provided, however, if such person 2 56 maintains ownership of such structure and rents or leases rooms or 57 space in such structure, then the license tax rate for such person 58 shall be 0.16 percent of the actual cost of construction. No 59 license for the conduct of such business shall be transferred. 60 (c) A person shall not be deemed to be engaged in the 61 business of contracting solely because he acts as his own prime 62 contractor to build or lmprove a building which he intends to 63 occupy as his residence, office or other place of business, or 64 actually so occupied within a reasonable time prior to the sale of 65 the premises. 66 (eQ) Every person licensed under this section shall, within 67 thirty (30) days from the issuance of a building permit, furnish 68 the commissioner of revenue, on forms provided by him, the amount 69 of each subcontract, along with the names and addresses of all 70 subcontractors to be employed in the construction of the work 71 encompassed by such permit. Failure to comply with the provisions 72 of this subsection shall constitute a basis for the revocation of 73 the building permit and suspension of all work under such permit. 74 Adopted by the City Council of the City of Virginia Beach, 75 Virginia, on this 28th day of February, 2006. 3 1 AN ORDINANCE TO AMEND ~ 21-1 OF THE CITY CODE 2 TO INCORPORATE STATE CODE PROVISIONS THAT 3 PROHIBIT DRIVING WHILE INTOXICATED 4 5 SECTION AMENDED: ~ 21-1 6 7 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 8 BEACH, VIRGINIA: 9 10 That Section 21-1 of the City Code is hereby amended and 11 reordained, to read as follows: 12 Sec. 21-1. Adoption of Title 46.2 and Article 2 (S 18.2 - 266 et 13 seq.) of Chapter 7 of Title 18.2 of the state ~ code. 14 15 (a) Pursuant to the authority of ~ 46.2-1313 of the Code of 16 Virginia, 1950, as amended, all of the provisions and requirements 17 of the laws of the State contained in Title 46.2 and Article 2 (~ 18 18.2 - 266 et seq.) of Chapter 7 of Title 18.2 of the Code of 19 Virginia, as amended, and pursuant to ~ 1-220 of the Code of 20 Virginia as amended in the future, except those provisions and 21 requirements the violation of which constitutes a felony, and 22 except those provisions and requirements which, by their very 23 nature, can not have application to or within the City, are hereby 24 adopted and incorporated in this Chapter by reference and made 25 applicable within the City. Such provisions and requirements are 26 hereby adopted and made a part of this Chapter as fully as though 27 set forth at length herein, and it shall be unlawful for any person 28 within the City to violate or fail, neglect or refuse to comply 29 with any provision of the Code of Virginia, which is adopted by 30 this Section; provided, that in no event shall the penalty imposed 1 31 for the violation of any provision or requirement hereby adopted 32 exceed the penalty imposed for a similar offense under the Code of 33 Virginia. 34 (b) Any change to any Section of this Article resulting from 35 a future amendment to a state law that is adopted and incorporated 36 by reference shall become effective at the same time the amended 37 state law becomes effective. 38 (c) All definitions of words and phrases contained in the 39 State law hereby adopted shall apply to such words and phrases, 40 when used l.n this Chapter, unless clearly indicated to the 41 contrary. Reference to ~highways of the state" contained in such 42 provisions and requirements hereby adopted shall be deemed to refer 43 to the streets, highways and other public ways within the City. 44 45 BE IT FURTHER ORDAINED, this Ordinance shall become effective 46 March 1, 2006. 47 48 Adopted by the City Council of the City of Virginia Beach, 49 Virginia, on this 28th day of February, 2006. 2 - 30 - Item v.J.1.c. ORDINANCES/RESOLUTIONS ITEM # 54956 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED, AS REVISED*: Ordinance to AMEND the City Code: c. Section 6-12 re riding horses or driving vehicles on the City's beach or dunes *Section c, lines 23 thru 27: "The provisions of this section shall not applv to conduct in the resort area that is exvlicitlv authorized bv a Special Events permit issued vursuant to City Code Section 6-12. Unless otherwise extended bv City Council. this subsection shall sunset effective February 28. 2007. " Voting: 9-1 (By Consent) Council Members Voting Aye: Harry E. Diezel, Vice Mayor Louis R. Jones, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: Reba S. McClanan Council Members Absent: Robert M Dyer February 28,2006 ALTERNATE VERSION 2 1 AN ORDINANCE TO AMEND THE CITY CODE PERTAINING 2 TO RIDING HORSES OR DRIVING VEHICLES ON BEACH 3 OR DUNES 4 SECTION AMENDED: ~ 6-12 5 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 6 BEACH, VIRGINIA: 7 That Section 6-12 of the City Code 1.S hereby amended and 8 reordained, to read as follows: 9 Sec. 6-12. Riding horses or driving vehicles on beach or dunes. 10 a) It shall be unlawful for any person to ride a horse or 11 any other animal or to operate or drive a vehicle of any kind on 12 the public beaches or upon the sand dunes within the city, except 13 that area between the ocean and sand dunes south of the exit ramp 14 at the southern end of Little Island Recreation Park (now being 15 used as a public way to commute back and forth to a place of 16 residence). 17 b) The provisions of this section shall not apply to the 18 police mounted patrol, city vehicles operated while cleaning or 19 working on the beach, police and emergency vehicles, erosion 20 commission vehicles, vehicles of net fishermen operating under 21 proper permits, or vehicles operated by physically handicapped 22 persons by permission of the city manager or his designee. (c) The provisions of this section shall not apply to conduct 23 24 1.n the resort area that is explicitly authorized by a Special 25 Events permit issued pursuant to City Code ~ 4-1. Unless otherwise 26 extended by City Council, this subsection shall sunset effective 27 February 28, 2007. 28 Adopted by the City Council of the City of Virginia Beach, 29 Virginia, on this 28th day of February, 2006. - 31 - Item V, J. 2. ORDINANCES/RESOLUTIONS ITEM # 54957 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Ordinance to AUTHORIZE the City Manager to execute a lease for five and one-half months with PIECES OF EIGHT, LLC (Pirate Cruise) at 2nd Street and Atlantic Avenue at Rudee Loop Voting: 10-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M Dyer February 28,2006 1 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO 2 EXEUTE A LEASE FOR FIVE AND ONE HALF (5~) 3 MONTHS WITH PIECES OF EIGHT, LLC, A VIRGINIA 4 LIMITED LIABLITY COMPANY, FOR 0.34 ACRES OF 5 CITY OWNED LAND LOCATED AT 2ND STREET AND 6 ATLANTIC AVENUE IN THE CITY OF VIRGINIA 7 BEACH. 8 9 WHEREAS, the City of Virginia Beach (the "City") is the owner 10 of 0.34 acres of unimproved real property located at 2nd Street and 11 Atlantic Avenue (the "Premises"); 12 WHEREAS, Pieces of Eight, LLC, a Virginia limited liability 13 company ("Pieces of Eight"), would like to enter into a formal 14 lease arrangement with the City for the Premises shown on 15 Exhibit "A"; 16 WHEREAS, the Premises will be used by Pieces of Eight as a 17 satelli te parking lot for its customers participating on the 18 Pieces of Eight Pirate Cruise tourist attraction, and for no 19 other purpose; 20 WHEREAS, Pieces of Eight has agreed to pay the City 21 $24, 750.00 for the use of the Premises for a five and one half 22 month period; 23 NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE 24 CITY OF VIRGINIA BEACH, VIRGINIA: 25 That the City Manager is hereby authori zed to execute a 26 lease for a term of five and one half (5~) months, between 27 Pieces of Eight, LLC, a Virginia limited liability company, and 28 the City of Virginia Beach (the "City"), for lease of 0.34 acres 29 unimproved real property owned by the City and located at 2nd 30 Street and Atlantic Avenue at Rudee Loop in accordance with the 31 Summary of Terms attached hereto as Exhibit "B", and such other 32 terms, conditions, or modifications as may be satisfactory to 33 the City Manager and the City Attorney. 34 Adopted by the Council of the City of Virginia Beach, 35 Virginia on the 28th day of February , 2006 APPROVED AS TO CONTENT {;4~/~ Signat e / ;JtM~~cn /.5clZv ,cG<; / .f:4cJ-f-,~.5 (~f Department ( APPROVED AS TO LEGAL SUFFICIENCY AND FORM 'J~J cJ0d Signature CA-9864 X:\OID\REAL ESTATE\LEASES\Pieces of Eight\Pieces of Eight ordiance.rl.DOC R-1 February 10, 2006 COpy, THIS LEASE AGREEMENT ("Lease"), made this day of 2006, by and between the CITY OF VIRGINIA BEACH (GRANTOR/LESSOR), a municipal corporation of the Commonwealth of Virginia, hereinafter referred to as "City" or "Lessor," party of the first part, and PIECES OF EIGHT, LLC, a Virginia limited liability company (GRANTEE/LESSEE), hereinafter referred to as "Lessee," party of the second part. WITNESSETH 1. LEASED PREMISES. That for and in consideration of the rents, covenants and agreements hereinafter reserved and contained on the part of the Lessee to be observed and performed, LESSOR leases to Lessee and Lessee rents from LESSOR the following property, hereinafter referred to as the "Property", delineated as shaded area upon the attached map labeled "Exhibit A" entitled "EXHIBIT "A" "TO BE LEASED TO PIECES OF EIGHT BY THE CITY OF VIRGINIA BEACH"", reference being made to said exhibit for a more accurate description thereof and incorporated herein by reference thereto. LESSOR represents and warrants to Lessee, which representations and warranties shall survive the term hereof, that it is the record owner of the property and has full power and authority to enter into this Lease. 2. RENT. That for and in consideration of the sum of$24,750.00, payable in five (5) monthly payments of$4,500.00 and one (1) last payment of$2,250.00, no later than the 5th of each month, over the term of this Lease, LES SOR does hereby lease and demise unto Lessee the Property. Rent shall be remitted to LESSOR at the address provided in Paragraph 14 herein, or such other address as LESSOR advises Lessee in writing at least five (5) days prior to the due date of the next installment of rent. 3. TERM. The term ofthis Lease shall be for five and one half months commencing May 1,2006 and expiring October 15, 2006. 4. USE OF PROPERTY -PURPOSES. Lessee covenants that the Property shall be used solely for parking for clients participating on the Pieces of Eight cruise. Lessee shall use the Property only for the purposes listed herein and any other use thereof, unless necessarily incidental to such listed and allowed uses, shall constitute a breach of this Lease and cause its immediate termination. The Property is leased by LESSOR to Lessee "as is," and the sole responsibility for the maintenance and upkeep of the Property shall be with Lessee. Lessee shall also be responsible for and will make any necessary improvements to the Property to meet any zoning requirements pertaining to its use of the Property for parking. 5. ASSIGNMENT AND SUBLEASE. This Lease may not be assigned or transferred, and the Property shall not be sublet, either in whole or in part, by Lessee without LESSOR's prior written consent. 6. TERMINATION AND RIGHT OF ENTRY BY LESSOR. A. In the event that Lessee shall for any reason be in default of the terms of this Lease, the LESSOR may give Lessee written notice of such default by certified mail/return receipt requested at the address set forth in Paragraph 14 of this Lease. Unless otherwise provided, Lessee shall have ten (10) days from the date such notice is mailed in which to cure the default. Upon the occurrence of a default, in addition to all other rights and remedies as provided by law, the LESSOR shall have the right to: (a) terminate this Lease, whereupon Lessee shall quit and surrender the Property to the LESSOR and Lessee shall remain liable for all Rent that may be due up to the time this Lease terminates or the LESSOR takes possession of the Property; (b) reenter and repossess the Property and lock out the Lessee; and (c) cure the breach or default at Lessee's expense_ Lessee shall remain liable for all costs, fees and expenses incurred by the 2 LESSOR in curing the default and the same shall be additional Rent payable to LESSOR on demand. B. LESSOR reserves the right at any time, without prior written notice, to enter upon the property after it has been detennined that an emergency exists. C. The parties acknowledge that LESSOR has certain powers, purposes and responsibilities by virtue of being a municipality. To discharge its powers, purposes or responsibilities, LESSOR shall have the right to require Lessee to immediately dismantle and remove any and all improvements from the Property, within forty-eight (48) hours after notice is given to Lessee, or a longer period if forty-eight (48) hours is not commercially reasonable. Thereafter, LESSOR shall have the exclusive right to enter upon and use the Property, and Lessee shall surrender possession and control thereof to LESSOR. 7. MAINTENANCE. Lessee will keep all equipment and improvements, if any, placed upon the Property by Lessee, in a safe, clean, and orderly condition; be responsible for all activities on the Property that fall under its control; and will act immediately in response to any notices by LESSOR with reference to the forgoing, which equipment Lessee shall remove at the termination of this Lease. It is further understood and agreed as part of the consideration hereof, that Lessee shall be responsible for the maintenance and/or repair of the Property arising out of Lessee's use of the Property. Should any maintenance and/or repair work be deemed necessary, then the decision of LESSOR as to the scope of the required work and the amount of such liability shall control and be binding on Lessee. 8. LESSOR'S RIGHT TO GRANT EASEMENTS. LESSOR reserves the right to grant easements and rights of way across or upon the Property, for streets, alleys, public highways, drainage, utilities, telephone and telegraph transmissions lines, pipelines, irrigation 3 canals, and similar purposes; provided, that the grant and use of such easement will not adversely affect Lessee's use of the property. 9. INDEMNIFICATION/INSURANCE BY LESSEE. Lessee shall indemnify and save harmless LESSOR and all its officials, agents and employees from and against all losses and expenses incurred because of claims, demands, payments, suits, actions, recoveries, and judgments of every nature and description brought or recovered against them by reason of any injuries to property or person, including death, occurring on the Property, arising out of or in connection with Lessee's use of the Property. During the term of this Lease, Lessee shall obtain and keep in force the following policies of insurance: A. Worker's Compensation Insurance as required under Title 65.2 of the Code of Virginia. B. Commercial General Liability Insurance in an amount not less than one million dollars ($1,000,000) combined single limits (CSL). Such insurance shall name LESSOR as an additional insured. C. Automobile Liability Insurance including coverage for non-owned and hired vehicles in an amount not less than five hundred thousand dollars ($500,000) combined single limits (CSL); provided, that should Lessee enter into an arrangement with a third party to provide transportation to/from the Property to another location, such third party may satisfy the requirements of this Paragraph. All policies of insurance required herein shall be written by insurance companies licensed to conduct the business of insurance in Virginia and, acceptable to LESSOR, and shall carry the provision that the insurance will not be canceled or materially modified without thirty days (30) 4 prior written notice to LESSOR. Lessee shall provide a certificate evidencing the existence of such insurance. 10. APPLICABLE LAW. This Lease shall be deemed to be a Virginia Lease and shall be governed as to all matters whether of validity, interpretations, obligations, performance or otherwise exclusively by the laws ofthe Commonwealth of Virginia, and all questions arising with respect thereto shall be determined in accordance with such laws. Regardless of where actually delivered and accepted, this Lease shall be deemed to have been delivered and accepted by the parties in the Commonwealth of Virginia. 11. COMPLIANCE WITH ALL LAWS. Lessee shall comply with all laws, rules and regulations of LESSOR and all other governmental authorities respecting the use, operation and activities on the Property, including all applicable environmental Laws, and shall not make or be a party to any unlawful, improper or offensive use of such premises or nuisance thereon. LESSOR hereby represents to the Lessee, that to the best of the LESSOR's knowledge, without the requirement for independent investigation, no hazardous material such as petroleum products, asbestos and any other hazardous or toxic substance has been used, disposed of, or is located on the leased Property or the soil or groundwater on or under the leased Property. Any costs associated with violations of the law including, but not limited to, remediations, clean up costs, fines, administrative or civil penalties or charges, and third party claims imposed on the LESSOR by any regulatory agency or by any third party as a result of the noncompliance with federal, state or local environmental laws and regulations or nuisance statutes by the Lessee or by its employees, contractors, consultants, sub-consultants, or any other persons, corporations or legal entities retained by it for the leased Property, shall be paid by the Lessee. It is expressly understood and agreed that Lessee, in no way, represents or acts on behalf of LESSOR or any department thereof. 5 12. VENUE. Any and all suits for any claims or for any and every breach or dispute arising out of this Lease shall be maintained in the appropriate court of competent jurisdiction in the City of Virginia Beach, Virginia. 13. INVALIDITY. If any section, paragraph, subparagraph, sentence, clause or phrase of this Lease shall be declared or judged invalid or unconstitutional, such adjudication shall not affect the other sections, paragraphs, sentences, clauses or phrases. 14. NOTICES. Any notice which may be or is required to be given pursuant to the provisions of this Lease shall be delivered or sent by certified mail, prepaid, return receipt requested, and addressed as follows: Ifto Lessee, to: PIECES OF EIGHT, LLC 4308 ST. JAMES CIRCLE VIRGINIA BEACH, VA 23455 If to LESSOR, to: FACILITIES MANAGEMENT OFFICE CITY HALL BUILDING, ROOM 323 MUNICIP AL COMPLEX, BUILDING 1 VIRGINIA BEACH, VA 23456 15. ENTIRE AGREEMENT. This Lease contains the entire agreement between the parties hereto and may not be modified orally or in any manner other than an agreement in writing, signed by all the parties hereto and their respective successors in interest. This Lease shall inure to the benefit of and be binding upon the respective heirs, legal representatives, successors, and permitted assigns of the parties hereto. 16. SURVIVAL. The representations, warranties, and agreements of the parties contained in this Lease and in all other documents delivered in connection with this Lease shall survive the expiration or sooner termination of this Lease. 6 17. HOLDOVER. If Lessee fails to surrender the Property on the date that the Term of this Lease expires or terminates, Lessee's continued occupancy shall be deemed to be a tenancy-at-will (and not a tenancy from month-to-month or from year-to-year) cancelable by LESSOR upon forty-eight (48) hours prior oral or written notice, and such tenancy shall be subject to all of the provisions of this Lease, except that Rent during the holdover tenancy shall be equal to twice the Rent in effect immediately prior to the end of the Term. 18. NONDISCRIMINATION/DRUG-FREE WORKPLACE. During the duration and performance ofthis Lease, Lessee agrees as follows: 1. Lessee shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, national origin, age, disability, or any other basis prohibited by state law relating to discrimination in employment, except where there is a bona fide occupational qualification/consideration reasonably necessary to its normal operation. Lessee agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provision of this nondiscrimination clause. 2. Lessee, in all solicitations or advertisements for employees placed by or on behalf of Lessee, shall state that such Lessee 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 paragraph. 4. Lessee will provide a drug-free workplace for Lessee's employees. 5. Lessee will post in conspicuous places, available to employees and applicants for employment, a statement notifying employees that the unlawful manufacture, sale, distribution, dispensation, possession, or use of a controlled substance or marijuana is prohibited in Lessee's workplace and specifying the actions that will be taken against employees for violations of such prohibition. 6. Lessee will state in all solicitations or advertisements for employees placed by or on behalf of Lessee that Lessee maintains a drug-free workplace. 7. Lessee will include the provisions ofthe foregoing Subsections 1,2,3,4, 5, and 6 in every sub-lease, sub-contract, or purchase order 0 f over $10,000, pertaining to this Lease so that the provisions will be binding upon each sublettor, sub-contractor or vendor. 7 IN WITNESS WHEREOF, the parties hereto have each caused this Lease to be executed by their proper representatives, pursuant to due authority, as of the day and year first above written. CITY OF VIRGINIA BEACH By City Managerl Authorized Designee of the City Manager (SEAL) GOPy ATTEST: Ruth Hodges Smith City Clerk Lessee: PIECES OF EIGHT, LLC, a Virginia limited liability company By ru ~ ~ ,<A ~(SEAL) Name 1) t!JJJ \ ~ ~,(;..reu. 'i1.v.v - > Title }1~H~ APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: Facilities Management Office Department of Management Services Law Department APPROVED AS TO CONTENT: Risk Management 8 STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this _ day of , 2006, by , City Managerl Authorized Designee of the City Manager of the City of Virginia Beach, on its behalf. He/She is personally known to me. Notary Public My commission expires: STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this _ day of , 2006, by Ruth Hodges Smith, City Clerk of the City of Virginia Beach, on its behalf. She is personally known to me. Notary Public My commission expires: STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: fe1r. The foregoing instrument ~as acknowledged before me this ~day of UCU'k' 2006, by 1":Q\J\o.\-\.~((\\~{\Itt-Mr~\"~m~, of Pieces of Eight, LLC, a Virginia limite'd liability company, Lessee, on its beha f. elShe is persorJ known to me. ~t~ Notary blic My commission eXPire~vd(\ :) \ \ 7fJ:;lp F:\Data\ATY\OID\REAL ESTATE\LEASES\Pieces of Eight\Rudee Parcel- Pieces of Eight.r2.doc 9 - Interstate Primary Roads Streets Parcel . Water Bodies "EXHIBIT "A" "TO BE LEASED TO PIECES OF EIGHT BY THE CITY OF VIRGINIA BEACH" SCALE 1 : 1,868 ~~ i-1 I .., 100 0 100 200 FEET N I 300 A h++.......II_ir-. .....,..."...,,...../,..,,-.__.....1..1-. ___.:_1.___ _r Interstate Primary Roads Streets Parcel . Water Bodies "EXHIBIT "A" "TO BE LEASED TO PIECES OF EIGHT BY THE CITY OF VIRGINIA BEACH" SCALE 1 : 1,868 N r-'I ~ ~ I I I A 100 0 100 200 300 FEET EXHffiIT B SUMMARY OF TERMS LEASE FOR THE USE OF 0.34 ACRES OF CITY REAL PROPERTY LESSOR: City of Virginia Beach LESSEE: Pieces of Eight, LLC, a Virginia limited liability company PREMISES: Approximately 0.34 acres of City property located at 2nd Street and Atlantic A venue at Rudee Loop TERM: May 1, 2006, through October 15, 2006 RENT: Rent shall be $24,750.00, payable in 5 monthly installments of $4,500.00, and 1 last payment of $2,250.00. RIGHTS AND RESPONSIBILITIES OF PIECES OF EIGHT, LLC: · Will use the Premises for parking for its customers and for no other purpose. · Will keep, repair, and maintain the Premises at its expense and will do so in a workmanlike manner. Will be responsible for any necessary improvements to meet any zoning requirements pertaining to the use of the Premises for parking. · Will maintain commercial general liability insurance coverage with policy limits of not less than one million dollars ($1,000,000) combined single limits per occurrence, issued by an insurance company licensed to conduct the business of insurance in Virginia. Such insurance shall name the City of Virginia Beach as an additional insured. Lessee shall provide a certificate evidencing the existence of such insurance. · Will maintain Automobile Liability Insurance including coverage for non-owned and hired vehicles in an amount not less than five hundred thousand dollars ($500,000) combined single limits per occurrence, issued by an insurance company licensed to conduct the business of insurance in Virginia. Licensee shall provide a certificate evidencing the existence of such insurance. · Will assume the entire responsibility and liability for any and all damages to persons or property caused by any act or omission of the Lessee or its agents, etc. associated with the use of the Premises. · Will comply with all applicable laws, ordinances, and regulations in the performance of its obligations under the Lease. RIGHTS AND RESPONSIBILITIES OF THE CITY: . Will have access to the premises at any time, without prior notice, in the event of an emergency. . Will have the right to require Pieces of Eight, LLC, to surrender possession and control of the Premises to the City upon forty-eight (48) hours notice, or a longer period if forty-eight (48) hours is not commercially reasonable, in the discharge of its powers, purposes, or responsibilities. . Will have the right to grant easements and rights of way across the Premises for streets, alleys, public highways, drainage, and other similar purposes, provided such grant does not adversely affect use of the Premises by Pieces of Eight, LLC. TERMINATION: The City may terminate the Lease upon uncured default by Pieces of Eight, LLC. - 32 - Item v'J. 3. ORDINANCES/RESOLUTIONS ITEM # 54958 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Ordinance to AUTHORIZE the City Manager to acquire 15.3875 acres of the Lake Smith Fishing Station and adjacent property from the City of Norfolk under the Open Space Acquisition Program to preserve properties surrounding Lake Smith and Lake Lawson Voting: 10-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M. Dyer February 28, 2006 1 2 3 4 5 6 7 8 AN ORDINANCE TO AUTHORIZE ACQUISITION OF THE LAKE SMITH FISHING STATION AND ADJACENT PROPERTY TOTALING 15.3875 ACRES FOR $1, 406, 000 FROM THE CITY OF NORFOLK UNDER THE OPEN SPACE ACQUISITION PROGRAM. WHEREAS, 1n the op1n1on of the Council of the 9 City of Virginia Beach, Virginia, a public need exists for ]0 the acquisition of open space property in order to preserve 11 natural and undeveloped areas in the northern portion of 12 the City; 13 WHEREAS, the City of Norfolk 1S the owner of 14 certain property located 1n the City of Virginia Beach, 15 commonly referred to as the Lake Smith Fishing Station and 16 adjacent property totaling 15.3875 acres, which property is 17 shown on Exhibi t A attached to and made a part hereo f ( the 18 "Property") ; 19 WHEREAS, the City of Norfolk desires to sell the 20 Property to the City of Virginia Beach for a purchase price 21 of $1,406, 000; and 22 WHEREAS both the City of Norfolk and the City of 23 Virginia Beach believe a public necessity exists to 24 maintain the property adjacent to Lake Smith 1n its 25 natural, undeveloped state 1n order to protect and preserve 26 Lake Smith as a water source. 27 28 29 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: 1. That the Ci ty Council authorizes the 30 acquisition by purchase pursuant to Sections 15.2-1800, et 31 seq., Code of Virginia of 1950, as amended, of all that 32 certain real property in fee simple, owned by the City of 33 Norfolk, and located adjacent to Lake Smith In the City of 34 Virginia Beach, which property lS more particularly shown 35 on Exhibit A, attached hereto. 36 2. That the City Manager is hereby authorized to 37 make or cause to be made on behalf of the City of Virginia 38 Beach a Purchase and Sale Agreement for the property 39 previously described, for the sum of $1,406,000 and In 40 accordance with the terms contained In the Summary of 41 Terms, a copy of which is attached as Exhibit B. 42 3. That the City Manager is authorized to 43 expend $1,406,000 from CIP 4-004, Open Space Program Site 44 Acquisi tion, for the purchase of the property previously 45 described. 46 4. That the City Manager is further authorized 47 to do all things necessary and proper to effect the 48 purchase of the property and to carry out the terms of the 49 Purchase and Sale Agreement. 50 Adopted by the Council of the City of Virginia 51 Beach, Virginia, on the 28th day of FebruarL-, 2006. CA9703 H:\OID\REAL ESTATE\AcquisiLi()llS\WORKlNG DEEDS\Lakc Smith\CAl)70,1 Ordinalll:c.doc R-2 February 21, 2006 APPROVED AS TO CONTENTS ~~~ DEPARTMENT TO LEGAL AND FORM SELLER: PROPERTY: PURCHASE PRICE: ZONING CHANGE: RESTRICTIONS: RESALE OF PROPERTY: SETTLEMENT: LAKE SMITH ACQUISITION SUMMARY OF TERMS City of Norfolk 15.3875 Acres adjacent to Lake Smith $1,406,000 Agreement allows Norfolk to terminate the agreement in the event the application to rezone the property to P-l is not approved. No use of the Property is permitted that would adversely affect the use of the Lake as a water supply resource or adversely affect Norfolk's water system. Norfolk shall retain ownership of Lake Smith, the waters thereof, and a 25-foot buffer strip around the Lake over which the City of Virginia Beach shall have an easement. Use of Lake and Lake bottom will remain same as currently allowed. In addition to the 25-foot buffer strip, there shall be a 25-foot building setback wherein no improvements, fixtures, nor any structures may be placed unless related to storm water management, bank stabilization, or other water-access related improvements subject to the review of Norfolk. If Virginia Beach proposes to sell the Property to a third party, it must first offer to resell it to Norfolk at the same terms. Virginia Beach can dedicate or gift the Property for uses consistent with and subject to the terms of the Purchase Agreement with Norfolk. The closing shall be held on or before sixty (60) days from the end of the Due Diligence Period, or as soon thereafter as all legal documents can be prepared, the Property subdivided and title problems, if any, can be resolved. H:\OJD\REAL EST A TE\Acquisitions\WORKING - DEEDS\Lake Smith\Lake Smith SOT.doc - 33 - Item V.J.4. ORDINANCES/RESOLUTIONS ITEM # 54959 Upon motion by Councilman Maddox, seconded by Councilman Diezel, City Council DEFERRED until the City Council Session of March 7, 2006: Ordinance ESTABLISHING "Transition Rules" re the development property in the RT-2 Resort Tourist District Councilman Maddox advised the applicant, Richard Kowalewitch, requested DEFERRAL. Voting: 10-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M. Dyer February 28, 2006 - 34- Item v'J.5. ORDINANCES/RESOLUTIONS ITEM # 54960 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Ordinance to ACCEPT a donation of Cybex Fitness Equipment from Wareing's Gym to the Police Law Enforcement Training Center Voting: 10-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M. Dyer February 28, 2006 1 2 3 4 5 6 7 AN ORDINANCE TO ACCEPT A DONATION OF CYBEX FITNESS EQUIPMENT FROM WAREING'S GYM TO THE VIRGINIA BEACH LAW ENFORCEMENT TRAINING CENTER BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA 8 BEACH, VIRGINIA: 9 That a donation of Cybex Fitness Equipment valued at 10 approximately $6,500.00 from Wareing's Gym is hereby accepted. 11 This equipment will be used 1n the Virginia Beach Law 12 Enforcement Training Center. The City of Virginia Beach shall 13 not be responsible for the replacement of this equipment. 14 Adopted by the Council of the City of Virginia Beach, 15 Virginia on the 28th day of February, 2006. - 35 - Item V.J.6. ORDINANCES/RESOLUTIONS ITEM # 54961 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED, AS REVISED: Resolution AUTHORIZING the City Manager to expend 30,000 fr-em thc Teurism Grewth !n::cstmcnt Fund (TG!F) Occanfr-ent Spccial E','cnts $15,000 from the Tourism Advertising Program Special Reserve Fund and $15,000 from the General Fund of the Citv of Virginia to the Virginia Beach Jaycees re the 4llr Annual East Coast Surfing Championships (ECSC) (Requested by Council Members Maddox, Reeve and Villanueva) Voting: 10-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M Dyer February 28, 2006 ALTERNATE VERSION Requested by Councilmembers Maddox, Reeve, and Villanueva 1 2 3 A RESOLUTION DIRECTING THE EXPENDITURE THIRTY THOUSAND DOLLARS IN SUPPORT OF EAST COAST SURFING CHAMPIONSHIPS OF THE 4 WHEREAS, the East Coast Surfing Championships ("ECSC") are 5 North America's Oldest Running Surfing Competition and the 6 second oldest continuously run surfing contest in the world; 7 WHEREAS, the ECSC have been held annually in Virginia Beach 8 since 1963; 9 WHEREAS, more than one hundred of the world's top 10 professional surfers and an estimated three hundred amateur 11 surfers will travel to Virginia Beach to participate in the 44th 12 Annual ECSC on August 23-27, 2006; 13 WHEREAS, in addition to attracting tourists to the resort 14 area, the ECSC provides recreational activities for the City's 15 residents, including an oceanfront 5K run, skimboarding, 16 volleyball, and skateboarding; 17 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 18 OF VIRGINIA BEACH: 19 That the City Manager is hereby directed to expend $15,000 20 from the Tourism Advertising Program Special Reserve Fund and 21 $15,000 from the General Fund of the City to the Virginia Beach 22 Jaycees for the 44th Annual East Coast Surfing Championships. Adopted by the City Council of the City of Virginia Beach, Virginia, on this 2B~ day of r~~ \ , 2006. APPROVED AS TO LEGAL SUFFICIENCY: Z~?- City Attorney's Office CA-9924 H:\PA\GG\OrdRes\Proposed\ECSC resolution.doc R-5 February 28, 2006 - 36 - Item v.J. 7. ORDINANCES/RESOLUTIONS ITEM # 54962 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED: Resolution GRANTING Cox Communications of Hampton Roads, LLC (COX) a second extension to their Requestfor Formal Renewal Proposal to April 24, 2006 re their cable franchise Voting: 10-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. OberndorJ, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M Dyer February 28, 2006 1 2 3 4 5 6 A RESOLUTION GRANTING COX COMMUNICATIONS OF HAMPTON ROADS, LLC A SECOND EXTENSION TO RESPOND TO THE CITY' S REQUEST FOR FORMAL RENEWAL PROPOSAL REGARDING THE CITY'S CABLE FRANCHISE 7 WHEREAS, by resolution dated November 22, 2005, City 8 Council authorized the City Manager to issue a Request for 9 Formal Renewal Proposal to Cox Communications of Hampton Roads, 10 LLC ("Cox") regarding the City's cable franchise with Cox; and 11 WHEREAS, pursuant to the formal renewal process set forth 12 in 47 U.S.C. ~546, the City may establish a date by which Cox 13 must issue a response to the Request for Formal Renewal 14 Proposal; and 15 WHEREAS, the original deadline for Cox to issue a response 16 was January 23, 2006; and 17 WHEREAS, on January 24, 2006, Council adopted a resolution 18 extending the deadline for Cox to issue a response until 19 February 28, 2006; and 20 WHEREAS, Cox has again requested that the said deadline be 21 extended by the City. 22 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 23 OF VIRGINIA BEACH: 24 That City hereby extends the deadline for Cox to respond to 25 the City's Request for Formal Renewal Proposal until April 24, 26 2006. 27 Adopted by the City Council of Virginia Beach, Virginia on 28tl<!lay of February , 2006. 28 this APPROVED AS TO CONTENTS: APPROVED AS TO LEGAL SUFFICIENCY: 6~1(~ ,,-j [ I~ City Attorney s Offlce CA9918 H:\PA\GG\OrdRes\Proposed\Cox R-1 February 17, 2006 Amendment Res II Item V-K. PLANNING 1. TIMOTHY B. and TANIA OLDFIELD 2. SIROUS SHOTORBAN and TARAH KISER 3. SPRINTCOM,INC. 4. HERON RIDGE POPERTIES II, L.L.C. 5. RH BUILDERS, INC. 6. TANK LINES, INC. 7. BELLAMY ASSOCIATES, L.C. - 37 - ITEM # 54963 STREET CLOSURE VARIANCE CONDITIONAL USE PERMIT CONDITIONAL CHANGE OF ZONING VARIANCE CONDITIONAL CHANGE OF ZONING CONDIITONAL USE PERMIT CONDITIONAL CHANGE OF ZONING VARIANCE CONDITIONAL CHANGE OF ZONING February 28, 2006 - 38 - Item V-K. PLANNING ITEM # 54964 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council APPROVED IN ONE MOTION Items 1, 2, 3, 5a/b and 6 of the PLANNING BY CONSENT AGENDA. Voting: 10-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M Dyer Mayor Oberndorf and Council Lady McClanan will vote a VERBAL NA Y on Item K. 5 (RH Builders, Inc.) February 28, 2006 - 39 - Item V-K.1. PLANNING ITEM # 54965 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED an Ordinance upon application of TIMOTHY B. and TANIA OLDFIELD for the discontinuance, closure and abandonment of a portion of an alley adjacent to Lot 13, Block 13, Croatan Beach, 829 Vanderbilt Avenue: Ordinance upon application of Timothy B. & Tania Oldfield for the discontinuance, closure and abandonment of a portion of an alley located 100 feet north of Lockheed Avenue and extending 50 feet in a northerly direction. Property is adjacent to the rear of 829 Vanderbilt Avenue, Lot 13, Block 13, Croatan Beach. DISTRICT 6 - BEACH The following conditions shall be required: 1. The City Attorney's Office will make the final determination regarding ownership of the underlyingfee. The purchase price to be paid to the City shall be determined according to the "Policy Regarding Purchase of City's Interest in Streets Pursuant to Street Closures," approved by City Council. Copies of the policy are available in the Planning Department. 2. The applicant shall resubdivide the property and vacate internal lot lines to incorporate the closed area into the adjoining parcels. The plat must be submitted and approved for recordation prior to final street closure approval. 3. The applicant shall verify that no private utilities exist within the right-ofway proposed for closure. Preliminary comments from the utility companies indicate that there are no private utilities within the right-ofway proposed for closure. If private utilities do exist, easements satisfactory to the utility company must be provided. 4. Closure of the right-ofway shall be contingent upon compliance with the above stated conditions within 365 days (February 27,2007) of approval by City Council. If the conditions noted above are not accomplished and the final plat is not approved within one year of the City Council vote to close the right-ofway, this approval shall be considered null and void. 5. The approval is for the eastern half of the 15-foot wide alley, being seven (7) feet, six (6) inches by fifty (50) feet, adjoining the rear of Lot 13, Block 13, Croatan Beach. The fence depicted on the submitted exhibit entitled "Physical Survey of Lot 13, Block 13, Croatan Beach, 829 Vanderbilt Avenue, Virginia Beach, Virginia, for Tania Oldfield, Street Closure ", shall be relocated onto the applicant's property, out of the existing alley (right-ofway). February 14, 2006 - 40- Item V-K.1. PLANNING ITEM # 54965 (Continued) Voting: 10-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, Rosemary Wilson and James 1. Wood Council Members Voting Nay: None Council Members Absent: Robert M Dyer February 14, 2006 1 2 3 4 5 6 7 8 9 10 IN THE MATTER OF CLOSING, VACATING AND DISCONTINUING A PORTION OF THAT CERTAIN STREET KNOWN AS "7.5' X 50.0' PORTION OF ALLEY TO BE CLOSED 3,750 S.F." AS SHOWN ON THAT CERTAIN PLAT ENTITLED "PHYSICAL SURVEY OF LOT 13, BLOCK 13, CROATAN BEACH 829 VANDERBILT AVENUE VIRGINIA BEACH-VIRGINIA FOR TANIA OLDFIELD STREET CLOSURE" 11 WHEREAS, Timothy B. Oldfield and Tania Oldfield 12 applied to the Council of the City of Virginia Beach, Virginia, 13 to have the hereinafter described street discontinued, closed, 14 and vacated; and 15 WHEREAS, it is the judgment of the Council that said 16 street be discontinued, closed, and vacated, subject to certain 17 conditions having been met on or before one (1) year from City 18 Council's adoption of this Ordinance; 19 20 NOW, THEREFORE, BE IT ORDAINED by the Council of the 21 City of Virginia Beach, Virginia: 22 GPIN: 2426-37-6576 1 23 24 25 SECTION I 26 That the hereinafter described street be discontinued, 27 closed and vacated, subj ect to certain conditions being met on 28 or before one (1) year from City Council's adoption of this 29 ordinance: 30 31 All that certain piece or parcel of land 32 situate, lying and being in the City of 33 Virginia Beach, Virginia, designated and 34 described as "7.5' X 50.0' PORTION OF ALLEY 35 TO BE CLOSED 3,750 S.F." shown as the 36 hatched area on that certain plat entitled: 37 "PHYSICAL SURVEY OF LOT 13, BLOCK 13 CROATAN 38 BEACH 829 VANDERBILT AVENUE VIRGINIA BEACH- 39 VIRGINIA FOR TANIA OLDFIELD STREET CLOSURE" 40 Scale: 1"= 25', dated 09/07/05, prepared by 41 Engineering Services, Inc., a copy of which 42 is attached hereto as Exhibit A. 43 44 45 SECTION II 46 47 The following conditions must be met on or before one 48 (1) year from City Council's adoption of this ordinance: 49 1. The City Attorney's Office will make the final 50 determination regarding ownership of the underlying fee. The 51 purchase prlce to be paid to the City shall be determined 52 according to the "Policy Regarding Purchase of City's Interest 53 In Streets Pursuant to Street Closures," approved by City 54 Council. Copies of said policy are available in the Planning 55 Department. 2 56 57 2 . The applicant shall resubdi vide the property and 58 vacate internal lot lines to incorporate the closed area into 59 the adjoining parcels. The resubdivision plat shall be 60 submitted and approved for recordation prlor to final street 61 closure approval. 62 3. The applicant shall verify that no private 63 utili ties exist wi thin the right-of-way proposed for closure. 64 Preliminary comments from the utility companies indicate that 65 there are no private utili ties wi thin the right-of-way proposed 66 for closure. If private utilities do exist, the applicant shall 67 provide easements satisfactory to the utility companies. 68 4 . Closure of the right-of-way shall be contingent 69 upon compliance with the above stated conditions wi thin one (1) 70 year of approval by City Council. If all conditions noted above 71 are not in compliance and the final plat is not approved within 72 one (1) year of the City Council vote to close the street, this 73 approval will be considered null and void. 74 5. The approval lS for the eastern half of the 15- 75 foot wide alley, being seven (7) feet, SlX (6) inches by fifty 76 (50) feet, adjoining the rear of Lot 13, Block 13, Croatan 77 78 Beach. The fence depicted on the submitted exhibit entitled "Physical Survey of Lot 13, Block 13, Croat an Beach, 829 3 79 Vanderbilt Avenue, Virginia Beach, Virginia, for Tania Oldfield, 80 Street Closure", shall be relocated onto the applicant's 81 property, out of the existing alley (right-of-way). 82 83 84 SECTION III 85 86 1. If the preceding conditions are not fulfilled on 87 or before February 27, 2007, this Ordinance will be deemed null 88 and void without further action by the City Council. 89 2. If all conditions are met on or before February 90 27, 2007, the date of final closure is the date the street 91 closure ordinance lS recorded by the City Attorney. 92 3. In the event the City of Virginia Beach has any 93 interest in the underlying fee, the City Manager or his designee 94 is authorized to execute whatever documents, if any, that may be 95 requested to convey such interest, provided said documents are 96 approved by the City Attorney's Office. 97 SECTION IV 98 A certified copy of this Ordinance shall be filed In 99 the Clerk's Office of the Circuit Court of the City of Virginia 100 Beach, Virginia, and indexed in the name of the CITY OF VIRGINIA 101 BEACH as "Grantor" and TIMOTHY B. OLDFIELD and TANIA OLDFIELD as 102 "Grantee." 4 103 Adopted by the Council of the City of Virginia Beach, 104 Virginia, on this 28th day of ~~ruary , 2006. CA-9709 H:\OID\REAL ESTATE\Street Closure\forms\ORD.doc R-1 January 20, 2006 APPROVED AS TO CONTENT: ~ 1-Z.5"~.L Planning ~rtment APPROVED AS TO LEGAL SUFFICIENCY: Wwv q. VVhl}Wvv City Attorney 5 'NE HEREBY DECLARE THAT ON 5~P. 0" 2.006 'NE SURVEYED THE PROPERTY SHOWN HEREON, THAT THE TITLE LINES AND THE WALLS OF THE BUILDING(S) ARE AS SHOWN, THAT THE BUILDING(S) STAND STRICTLY WITHIN THE TITLE LINES AND THERE ARE NO ENCROACHMENTS OF OTHER BUILDINGS ON THE PROPERTY EXCEPT AS SHOWN, AND THAT THE PRINCIPLE STRUCTURES SHOWN APPEAR TO FALL WITHIN ZONE X ,AS SHOWN ON THE FEDERAL EMERGENCY MANAGEMENT AGENCY, FLOOD INSURANCE RATE MAP FOR THE CITY STATED BELOW. COMMUNITY NO, j; r 5 5 ~ I DATED 10 - 3 - 70 AND LAST REVISED I Z- 5' q" . NO TITLE REPORT WAS FUR I:) SURVEYOR PRIOR TO THE EXECUTION OF THIS SURVEY. q~ . ENGINEERING SERVICES, INC. - BY: . \, ..I::: .,. \ ....... o ..0 u.J ~ :2 .u :> < ::2 o t!i ::::2 - :t: V'l < 3: - 7..,,- ')< 5-0, " , I P",tiOt\ of A-lky to De.- e \ ose_c;lL 3, 'L.5'v s; P. .\lf1 ,I"' -f- '" ,,~ ~~ 15' o ...... . If) f'. 1~ 2-.4./' UNITS o o o o ~ 00 o o o o ic ~ . 11'I .,. -' ~ <: .' .. 3 - 5"TO~~ .. ~ .- r:rV,ML ,.: ~ .. .. " OJ uJ " N I 4 .. "l ,.or . , ot Il\ + . Itl cO " II) LI~ ,..If' 54' 14'15" L. 50.00' I',. l~' VIlNDERBILT hVE.NUf (80') PH'ISIChL SURVf" OF LOT 13, BLOCK 13 CROAT f1 N :BUlCH 8!q Vf1NOf.R6ILT f1\1f~UE. VIRGINIIi :!EIlCH-VIR(;INIf1 FOR ThN/f.1 OLDFIE.LD ST'Ri2cT CLDS~li<E engineering services inc CIVIL ENGINEERING - LAND SURVEYING 3351 STONESHORE ROAD VIRGINIA BEACH VIRGINIA 23452 (757) 468-6800 PROJ, 05181. DATE: Oq. 07. 05 SCALE: ''': Zo' DI/VN. ~,/L M.B. 24 PG. 37 (~ R ~ 7 ~ pr::: I.' \ ~ ~~W - 41 - Item V-K.2. PLANNING ITEM # 54965 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council APPROVED a Variance to ~ 4.4(b) of the Subdivision Ordinance that requires all newly created lots meet all the requirements of the City Zoning Ordinance (CZO) for SIROUS SHOTORBAN and T ARAH KISER: Appeal to Decisions of Administrative Officers in regard to certain elements of the Subdivision Ordinance, Subdivision for Sirous Shotorban & Tarah Kiser. Property is located at 1516 Mill Dam Road (GPIN 24082984840000). DISTRICT 5 - LYNNHA VEN The following conditions shall be required: 1. The subdivision of the property and the final subdivision plat shall substantially adhere to the submitted plan entitled "Preliminary SUBDIVISION OF PARCEL LABELLED "ANNIS HOLLOWAY, "prepared by Gallup Surveyors & Engineers, dated, September 19,2005. Said plan has been exhibited to the City of Virginia Beach City Council and is on file in the City of Virginia Beach Planning Department. 2. All conditions of the Chesapeake Bay Preservation Area Board's approval, dated October 24, 2005, shall also be conditions of approval of this Subdivision Variance. 3. There shall be only one (1) ingress/egress from this property onto Mill Dam Road. Voting: 10-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M Dyer February 28, 2006 - 42- Item V-K.3. PLANNING ITEM # 54966 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED an Ordinance upon application of SPRINTCOM, INC. for a Conditional Use Permit re a communication tower: ORDINANCE UPON APPLICATION OF SPRINTCOM, INC. FOR A CONDITIONAL USE PERMIT FOR A COMMUNICATION TOWER R020634147 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Application of SprintCom, Inc. for a Conditional Use Permit for a communication tower on property located at 5648 Campus Drive (GPIN 14681560210000). DISTRICT 4 - BAYSIDE The following conditions shall be required: 1. The tower shall be constructed substantially in adherence to the site plans entitled "N060XC833-C VEPCO Structure # 27/289 Sprint, Co-Location Transmission Tower", prepared by Alcoa Wireless Services, Inc., and dated 9/14/05 (issued for construction). This site plan has been exhibited to City Council and is on file with the Department of Planning. 2. The tower shall be limited in height to 105-feet. 3. Landscaping around the tower shall comply with the City of Virginia Beach requirements. 4. Unless a waiver is obtained from the City of Virginia Beach Department of Communications and Information Technology (COM IT), a radio frequency emissions study (RF Study), conducted by a qualified engineer licensed to practice in the Commonwealth of Virginia, showing that the intended user(s) will not interfere with any City of Virginia Beach emergency communications facilities, shall be provided prior to site plan approval for the tower and all subsequent users. 5. In the event inteiference with any City emergency communications facilities arise from the users of this tower, the user(s) shall take all measures reasonably necessary to correct and eliminate the inteiference. If the interference cannot be eliminated within a reasonable time, the user shall immediately cease operation to the extent necessary to stop the interference. 6. Should the antennae cease to be used for a period of more than one (1) year, the applicant shall remove the antennae and their supporting tower and related equipment. This Ordinance shall be effective in accordance with Section 107 (f) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-eighth of February, Two Thousand Six February 28, 2006 - 43 - Item V-K.3. PLANNING ITEM # 54966 (Continued) Voting: 10-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M Dyer February 28, 2006 - 44- Item V-K.4. PLANNING ITEM # 54967 Attorney R. E. Bourdon, Pembroke Office Park - Building One, 281 Independence Boulevard, Fifth Floor, Phone: 499-8971, represented the applicant and advised Wiliam E. Weddle and Jean Ray Weddle who have owned the property for over 27 years, and his clients desire to maintain the stately home built on this property as well as the beautiful specimen trees. To maintain the integrity of the home it is necessary to create a larger lot. As the proffers re the open space areas conflict with the policy and need to be amended, this application should be DEFERRED INDEFINITELY. The proffers state the open space will be utilizedfor the residents of the eight (8) homes. The following registered in OPPOSITION: Bernard Byrne, 2728 Esplanade Court, Phone: 430-0571, advised he did receive notice this application would be heard tonight, February 28,2006. Mr. Byrne advised he had not been contacted nor has he reviewed the revised plan to be submitted by the applicant meeting the Transition Area guidelines Rick Rivera, 3044 Heron Ridge Drive, phone: 721-6063, President - Heron Ridge Community Association, was concerned re the available open space and additional traffic into the community. Bobby Rountree, 2913 Couples Court, Phone: 721-3394, former Board Member- Heron Ridge Community Association, represented future residents of Oak Breeze. Mr. Rountree urged curbs and gutter instead of swales. Upon motion by Councilman Reeve, seconded by Council Lady Wilson, City Council DEFERRED INDEFINITELY Ordinances upon application of HERON RIDGE PROPERTIES II, L.L.c. for a Conditional Change of Zoning and Variance to ~4.4 (b) of the Subdivision Ordinance that requires all newly created lots meet all the requirements of the City Zoning Ordinance: ORDINANCE UPON APPLICATION OF HERON RIDGE PROPERTIES II, L.L.c. FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM AG-1 AND AG-2 AGRICULTURAL DISTRICT TO CONDITIONAL R-20 Ordinance upon Application of Heron Ridge Properties II, L.L. C. for a Change of Zoning District Classification from AG-1 and AG-2 Agricultural District to Conditional R-20 Residential District on property located at 2817 Seaboard Road (GPINs 24036750380000; 24036647250000). The Comprehensive Plan designates this site as being within the Princess Anne Transition Area, suitable for cluster housing using creative planning and development techniques. The purpose of this rezoning is to develop singlejamily homes. DISTRICT 7 - PRINCESS ANNE AND, Appeal to Decisions of Administrative Officers in regard to certain elements of the Subdivision Ordinance, Subdivision for Heron Ridge Properties II, L.L.c. for property located at 2817 Seaboard Road (GPINs 24036750380000;24036647250000). DISTRICT 7 - PRINCESS ANNE February 28, 2006 - 45 - Item V-K.4. PLANNING ITEM # 54967 (Continued) Voting: 10-0 Council Members Voting Aye: Harry E. Diezel, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W. Schmidt, Ron A. Villanueva, Rosemary Wilson and James 1. Wood Council Members Voting Nay: None Council Members Absent: Robert M Dyer February 28, 2006 - 46- Item V-K.5. PLANNING ITEM # 54968 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED Ordinances upon applications of RH BUILDERS, INC. for a Conditional Change of Zoning and Conditional Use Permit: ORDINANCE UPON APPLICATION OF RH BUILDERS, INC. FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM CONDITIONAL B-2 TO CONDITIONAL A-36 Z02061241 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Application of RH Builders, Inc. for a Change of Zoning District Classification from Conditional B-2 Community Business District to Conditional A-36 Apartment District on property located on the east side ofShurney Lane, 184.37 feet south of Wesleyan Drive (GPIN 14684482090000). The Comprehensive Plan designates this site as being within the Primary Residential Area. The purpose of this rezoning is to develop multi-family housing. DISTRICT 4 - BAYSIDE The follOWing condition shall be required: 1. An agreement encompassing proffers shall be recorded with the Clerk of the Circuit Court. AND, ORDINANCE UPON APPLICATION OF RH BUILDERS, INC. FOR A CONDITIONAL USE PERMIT FOR HOUSING FOR SENIORS R020634148 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of RH Builders, Inc. for a Conditional Use Permit for housing for seniors on property located on the east side of Shurney Lane, 184.37 feet south of Wesleyan Drive (GPIN 14684482090000). DISTRICT 4 - BAYSIDE. These Ordinances shall be effective in accordance with Section 107 (f) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-eighth of February, Two Thousand February 28, 2006 - 47 - Item V-.K.5. PLANNING ITEM # 54968 (Continued) Voting: 9-2 (By Consent) Council Members Voting Aye: Harry E. Diezel, Vice Mayor Louis R. Jones, Richard A. Maddox, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: Mayor Meyera E. Oberndorf and Reba S. McClanan Council Members Absent: Robert M Dyer February 28, 2006 RH BUILDERS, INC., a Virginia corporation FOOD LION, L.L.C., a North Carolina limited liability company TO (PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS) CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia THIS AGREEMENT, made this 19th day of January, 2006, by and between RH BUILDERS, INC., a Virginia corporation, party of the first part, Grantor; FOOD LION, L.L.C., a North Carolina limited liability company, party of the second part, Grantor; and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, party of the third part, Grantee. WITNESSETH: WHEREAS, the party of the second part is the owner of a parcel of property located in the Bayside District of the City of Virginia Beach, containing a total of approximately 2.822 acres as more particularly described in Exhibit "A" attached hereto and incorporated herein by reference, which parcel is referred to herein as the "Property"; and WHEREAS, the party of the first part, as contract purchaser of the Property has initiated a conditional amendment to the Zoning Map of the City of Virginia Beach, Virginia, by petition addressed to the Grantee so as to change the Zoning Classification of the Property from Conditional B-2 Commercial District to Conditional A-36 Apartment District; and WHEREAS, the Property was part of a larger tract and is subject to a previously proffered declaration of conditions and restrictions applicable to the larger tract, which is recorded in the Office of the Clerk of Circuit Court of the City of Virginia Beach, Virginia, in Deed Book 4023, at Page 1775; and GPIN: 1468-44-8209 PREPARED BY: SYKES, BOURDON, AHERN & LEVY, P.C. 281 INDEPENDENCE BOULEVARD PEMBROKE ONE, FIFTH FLOOR VIRGINIA BEACH, VIRGINIA 23462 1 WHEREAS, the Grantee's policy is to provide only for the orderly development of land for various purposes through zoning and other land development legislation; and WHEREAS, the Grantor acknowledges that competing and sometimes incompatible uses conflict and that in order to permit differing uses on and in the area of the Property and at the same time to recognize the effects of change, and the need for various types of uses, certain reasonable conditions governing the use of the Property for the protection of the community that are not generally applicable to land similarly zoned are needed to cope with the situation to which the Grantor's rezoning application gives rise; and WHEREAS, the Grantor has voluntarily proffered, in writing, in advance of and prior to the public hearing before the Grantee, as a part of the proposed amendment to the Zoning Map, in addition to the regulations provided for the A-36 Zoning District by the existing overall Zoning Ordinance, the following reasonable conditions related to the physical development, operation, and use of the Property tQ be adopted as a part of said amendment to the Zoning Map relative and applicable to the Property, which has a reasonable relation to the rezoning and the need for which is generated by the rezoning. NOW, THEREFORE, the Grantor, for itself, its successors, personal representatives, assigns, grantee, and other successors in title or interest, voluntarily and without any requirement by or exaction from the Grantee or its governing body and without any element of compulsion or quid pro quo for zoning, rezoning, site plan, building permit, or subdivision approval, hereby make the following declaration of conditions and restrictions which shall restrict and govern the physical development, operation, and use of the Property and hereby covenants and agrees that this declaration shall constitute covenants running with the Property, which shall be binding upon the Property and upon all parties and persons claiming under or through the Grantor, its successors, personal representatives, assigns, grantee, and other successors in interest or title: 1. When the Property is developed, it shall be substantially ill accordance with the Preliminary Site Plan entitled "RH BUILDERS, INC. INDEPENDENT SENIOR LIVING, Virginia Beach, Virginia", dated January 19, 2 2006, prepared by Engineering Resources Group, L.L.C., which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning ("Site Plan"). 2. When the Property is developed, the residential structure depicted on the Site Plan shall have the architectural design and utilize the building materials substantially as depicted and designated on the exhibit entitled "WESLEYAN PLACE SENIOR APARTMENTS - EXTERIOR ELEVATION", dated January 19, 2006, and prepared by Kroskin Design Group Architects, which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Planning Department ("Elevations"). 3. When the Property is developed, the fencing along the westem and southem property lines as designated on the Site Plan shall be of the design, material and color substantially as depicted on the exhibit entitled "Wesleyan Place SENIOR APARTMENTS FENCE DETAIL" dated November 11, 2005, which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Planning Department ("Fence Detail"). 4. When the Property is developed, there will be no more than ninety-two (92) independent senior housing units provided within the building depicted on the Site Plan. 5. With respect to the subject Property, these proffered covenants, restrictions and conditions supersede those previously recorded in the afore referenced Clerk's Office in Deed Book 4023, at Page 1775. 6. Further conditions may be required by the Grantee during detailed Site Plan review and administration of applicable City Codes by all cognizant City agencies and departments to meet all applicable City Code requirements. The above conditions, having been proffered by the Grantor and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, shall continue in full force and effect until a subsequent amendment changes the zoning of the Property and specifically repeals such conditions. Such conditions shall continue despite a subsequent amendment to the Zoning Ordinance even if the subsequent amendment is part of a comprehensive implementation of a new or substantially revised Zoning Ordinance until specifically repealed. The conditions, 3 however, may be repealed, amended, or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and executed by the record owner of the Property at the time of recordation of such instrument, provided that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of an ordinance or a resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee which was advertised pursuant to the provisions of Section 15.2-2204 of the Code of Virginia, 1950, as amended. Said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent, and if not so recorded, said instrument shall be void. The Grantor covenants and agrees that: (1) The Zoning Administrator of the City of Virginia Beach, Virginia, shall be vested with all necessary authority, on behalf of the goveming body of the City of Virginia Beach, Virginia, to administer and enforce the foregoing conditions and restrictions, including the authority (a) to order, in writing, that any noncompliance with such conditions be remedied; and (b) to bring legal action or suit to insure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages, or other appropriate action, suit, or proceeding; (2) The failure to meet all conditions and restrictions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) If aggrieved by any decision of the Zoning Administrator, made pursuant to these provisions, the Grantor shall petition the goveming body for the review thereof prior to instituting proceedings in court; and (4) The Zoning Map may show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the Property, and the ordinances and the conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department, and they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and indexed in the name of the Grantor and the Grantee. 4 WITNESS the following signature and seal: Grantor: :BUi:;;~??Zn Title: Pre.S;JeA+' (SEAL) STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing in~tru~<:r:t )V,s acknowledged before m~this t6th day of February, 2006, by 1- 0cC!f AiPlE'( r/ZESrcl.E.Jl.iT of RH Builders, Inc., a Virginia corpo~ation, Grantor. / 'if! 1;\/; /~!i.& tf ~/v .v"L.I./{A_ .f; '---i/.- irj !-{ - ',,-_1/t0 J//Vl Notary Public My Commission Expires: . I Ii. i. /1 !l,3ijOf{/ 5 WITNESS the following signature and seal: Grantor: Food Lion, L.L.C., a North Carolina limited liability company By: - ~ ~" Jo( . " L/ _i~/~ ,/,- . :;;,,-- ',J P "'--.-./ .....-:> I' . v . ' Managing Member (SEAL) STATE OF NORTH CAROLINA CITY jCOUNTY OF ,Aj-/!/<.-r'dt , to-wit: .>>'J...1Utft4he foregoing instrument was a~knowledged before me thi~ ../z:?'A'day of Novcn cr, 2006, by /(, 6' IRk, 't ?I, J.-mA . .?v, , Managmg Member of Food Lion, L.L.C., a North Carolina limited liability company, Grantor. /~7/U;;r;~ ~ - v Notary Public My Commission Expires: '""'f{ 6 EXHIBIT "A" ALL THAT certain lot, piece or parcel of land, lying and situate in the City of Virginia Beach, Virginia, with the improvements thereon and appurtenances thereunto belonging, known, numbered and designated as "Parcel A-3" as shown on that certain plat entitled "SUBDMSION PLAT OF WESLEYAN COMMONS, SUBDIVISION OF PART OF PROPERTY OF JOHN G. & MARY M. WILLIAMS (MB 197, PG 95-99 & MB 203, PG 72-74) VIRGINIA BEACH, VIRGINIA", prepared by Miller-Stephenson & Associates, P.C., dated August 23, 1999 and recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book 280, Pages 75 through 77. GPIN: 1468-44-8209 ConditionalRezone / RHBuilders /IndependentSeniorLiving/Proffer 7 - 48 - Item V-K.6. PLANNING ITEM # 54969 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADOPTED Ordinance upon application of TANK LINES, INC. for a Conditional Change of Zoning: ORDINANCE UPON APPLICATION OF TANK LINES, INC. FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM B-2 TO CONDITIONAL I-I Z02061242 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Application of Tank Lines, Inc. for a Change of Zoning District Classification from B-2 Community Business District to Conditional I-I Light Industrial District on property located at 1357 Diamond Springs Road (GPIN 14690099940000). The Comprehensive Plan designates this site as being within Strategic Growth Area #1, suitable for major corporate, employment and industrial uses. The purpose of this rezoning is to construct an office/warehouse. DISTRICT 4 -BAYSIDE The following condition shall be required: 1. An agreement encompassing proffers shall be recorded with the Clerk of the Circuit Court. This Ordinance shall be effective in accordance with Section 107 (j) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-eighth of February, Two Thousand Six Voting: 10-0 (By Consent) Council Members Voting Aye: Harry E. Diezel, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndorf, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: Robert M. Dyer February 28, 2006 CITY OF VIRGINIA BEACH INTER-OFFICE CORRESPONDENCE I n Reply Refer To Our File No. DF-6305 DATE: February 15, 2006 TO: FROM: Leslie L. Lilley ,~ B. Kay WiISO~ DEPT: City Attorney DEPT: City Attorney RE: Conditional Zoning Application; Tank Lines, Inc. The above-referenced conditional zoning application is scheduled to be heard by the City Council on February 28, 2006. I have reviewed the subject proffer agreement, dated August 29, 2005, and have determined it to be legally sufficient and in proper legal form. A copy of the agreement is attached. Please feel free to call me if you have any questions or wish to discuss this matter further. BKW /ks Enclosure cc: Kathleen Hassen TANK LINES, INC., a Virginia corporation TO (PROFFERED COVENANTS, RESTRICTIONS AND CONDITIONS) CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia THIS AGREEMENT, made this 29th day of August, 2005, by and between TANK LINES, INC., a Virginia corporation, Grantor; and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, Grantee. WITNESSETH: WHEREAS, the Grantor is the owner of a parcel of property located in the Bayside District of the City of Virginia Beach, containing approximately 2.399 acres of land and is more particularly described in Exhibit "An attached hereto and incorporated herein by this reference. Said parcel is herein referred to as the "Property"; and WHEREAS, the Grantor has initiated a conditional amendment to the Zoning Map of the City of Virginia Beach, Virginia, by petition addressed to the Grantee so as to change the Zoning Classification of the Property from B-2 Commercial District to Conditional I-I Industrial District; and WHEREAS, the Grantee's policy is to provide only for the orderly development of land for various purposes through zoning and other land development legislation; and WHEREAS, the Grantor acknowledges that the competing and sometimes incompatible uses conflict and that in order to permit differing uses on and in the area of the Property and at the same time to recognize the effects of change, and the need for various types of uses, certain reasonable conditions goveming the use of the Property for the protection of the community that are not generally applicable to land similarly zoned are needed to cope with the situation to which Grantor's rezoning application gives rise; and PREPARED BY: mm SYIlfS. ROURDON. mu .wrnN &1.M.P.c. GPIN: 1469-10-0907 1 PREPARED BY; ~m SYI([S. ROURDON. mil AlIffiN &. LM. P.c. WHEREAS, Grantor has voluntarily proffered, in writing, in advance of and prior to the publIc hearing before the Grantee, as a part of the proposed amendment to the Zoning Map, in addition to the regulations provided for the 1-1 Zoning District by the existing overall Zoning Ordinance, the following reasonable conditions related to the physical development, operation, and use of the Property to be adopted as a part of said amendment to the Zoning Map relative and applicable to the Property, which has a reasonable relation to the rezoning and the need for which is generated by the rezoning. NOW, THEREFORE, Grantor, for itself, its successors, personal representatives, assigns, grantee, and other successors in title or interest, voluntarily and without any requirement by or exaction from the Grantee or its goveming body and without any element of compulsion or quid pro quo for zoning, rezoning, site plan, building permit, or subdivision approval, hereby make the following declaration of conditions and restrictions which shall restrict and govem the physical development, operation, and use of the Property and hereby covenants and agrees that this declaration shall constitute covenants running with the Property, which shall be binding upon the Property and upon all parties and persons claiming under or through Grantor, its successors, personal representatives, assigns, grantee, and other successors in interest or title: 1. When the Property is developed, in order to achieve a coordinated design and development on the site in terms of vehicular access, parking, building orientation, building appearance and landscaping, the conceptual site plan and building elevation entitled "NEW SHELL OFFICE - WAREHOUSE BUILDING TANK LINES, Virginia Beach, Virginia" (pages 1 and 2), dated 8/30/2005, prepared by Lyall Design Architects, which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning ("Concept Plan") shall be substantially adhered to. 2. Further conditions may be required by the Grantee during detailed Site Plan review and administration of applicable City Codes by all cognizant City agencies and departments to meet all applicable City Code requirements. The above conditions, having been proffered by Grantor and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, 2 PREPARED BY: ~m SYl([S. ROURDON. mil AIImN & 1M. P.C shall continue in full force and effect until a subsequent amendment changes the zoning of the Property and specifically repeals such conditions. Such conditions shall continue despite a subsequent amendment to the Zoning Ordinance even if the subsequent amendment is part of a comprehensive implementation of a new or substantially revised Zoning Ordinance until specifically repealed. The conditions, however, may be repealed, amended, or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and executed by the record owner of the Property at the time of recordation of such instrument, provided that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of an ordinance or a resolution adopted by the goveming body of the Grantee, after a public hearing before the Grantee which was advertised pursuant to the provisions of Section 15.2-2204 of the Code of Virginia, 1950, as amended. Said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent, and if not so recorded, said instrument shall be void. Grantor covenants and agrees that: ( 1) The Zoning Administrator of the City of Virginia Beach, Virginia, shall be vested with all necessary authority, on behalf of the goveming body of the City of Virginia Beach, Virginia, to administer and enforce the foregoing conditions and restrictions, including the authority (a) to order, in writing, that any noncompliance with such conditions be remedied; and (b) to bring legal action or suit to insure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages, or other appropriate action, suit, or proceeding; (2) The failure to meet all conditions and restrictions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) If aggrieved by any decision of the Zoning Administrator, made pursuant to these provisions, Grantor shall petition the goveming body for the review thereof prior to instituting proceedings in court; and (4) The Zoning Map may show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the Property, and the 3 PREPARED BY: ~IB Syn:s. BOURDON. mll AHrnN & U:VY. P.c. ordinances and the conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department, and they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and indexed in the name of Grantor and the Grantee. 4 PREPARED BY: ~m STIrs. :ROURDON. mil AIlmN &. LM. P_L WITNESS the following signature and seal: Grantor: ! Tank Lines, Lact: a Virginia corporation 1h<;i!0 /JJ2 ~ !~/'./fItt)~ By: :'.~ 1( I Ii' (SEAL) tha.fles R. M on, Jr., President STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this 31 st day of August, 2005, by Charles R. Malbon, Jr., President of Tank Lines, Inc., a Virginia corporation, Grantor. ~ ~LI/ .~ . ~ ./.(!, I . ~ .--:;~. /- _',1 .---y;.; ~ Notary Public My Commission Expires: August 31, 2006 5 PREPARED BY: ~ SillS. ROURDON. 6JI A.HERN &LM.P.C EXHIBIT" A" ALL THAT certain tract, piece or parcel of land, lying, situate and being in the City of Virginia Beach, Virginia, designated as "PARCEL XLN-B", on that certain plat entitled "RESUBDNISION OF PARCEL XLN, AIRPORT INDUSTRIAL PARK - BAYSIDE (MB 116, PG 25) AND THE PROPERTY OF CLARA S. MALBON (Instrument No. 200310170169982) Virginia Beach, Virginia", prepared by Engineering Services, Inc., and duly recorded in the Clerk's office of the Circuit Court of the City of Virginia Beach, Virginia, as Instrument # 20051215002001950. GPIN: 1469-10-0907 ConditionalRezone ITankLines 1 Proffer3 Rev. 12/27 105 6 - 49- Item V-K. 7. PLANNING ITEM # 54970 The following registered in OPPOSITION: James Myers, 1105 Larkwood, Phone:467-8588, concerned relative density and traffic Debbie Westbrook, 1232 HeathclifJDrive, Phone: 495-7479, resident of Bellamy Woods, requested INDEFINITE DEFERRAL to study and redesign the proposed entrance of the application Josephine Krantz, 4833 Berrywood Road, Phone: 495-3577, Vice President - Bellamy Woods Civic League, requested INDEFINITE DEFERRAL Upon motion by Councilman Diezel , seconded by Councilman Schmidt, City Council DEFERRED INDEFINITEL Y Ordinance upon application of BELLAMY WOODS, L. C. for a Conditional Change of Zoning: ORDINANCE UPON APPLICATION OF BELLAMY ASSOCIATES, 1.c. FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM R- 7.5 RESIDENTIAL DISTRICT TO CONDITIONAL A-18 Ordinance upon Application of Bellamy Associates, 1. C. for a Change of Zoning District Classification from R-7.5 Residential District to Conditional A-18 Apartment District on property located at 4416 Princess Anne Road (GPIN 14766093400000). The Comprehensive Plan designates this site as being within the Primary Residential Area. The purpose of this rezoning is to develop multi-family dwellings. DISTRICT 2 - KEMPSVILLE Voting: 10-0 Council Members Voting Aye: Harry E. Diezel, Vice Mayor Louis R. Jones, Reba S. McClanan, Richard A. Maddox, Mayor Meyera E. Oberndoif, Jim Reeve, Peter W Schmidt, Ron A. Villanueva, Rosemary Wilson and James 1. Wood Council Members Voting Nay: None Council Members Absent: Robert M. Dyer February 28,2006 - 50- Item V-L.1. APPOINTMENTS ITEM # 54971 BY CONSENSUS, City Council RESCHEDULED: BEACHES and WATERWAYS COMMISSION HUMAN RIGHTS COMMISSION INVESTMENT PARTNERSHIP ADVISORY COMMITTEE - PPEA MEAL TAX TASK FORCE RESORT ADVISORY COMMISSION (RAC) February 14, 2006 - 51 - Item V-No ADJOURNMENT ITEM # 54971 Mayor Meyera E. Oberndorf DECLARED the City Council Meeting ADJOURNED at 7:33 P.M. /J ~_ 'L~_{)__>!i~~m____ Beverly 0. Hooks, CMC Chief Deputy City Clerk - Meyera E. Oberndorf Mayor City of Virginia Beach Virginia February 14, 2006