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Home My WebLink AboutAUGUST 8, 2006 MINUTES CITY OF VIRGINIA BEACH "COMMUNITY FOR A LIFETIME" CITY COUNCIL MAYOR MEYERA E. OBERNDORF, At-Large VICE MAYOR LOUIS R. JONES, Bay.wde - District 4 WILLIAM R. DeSTEPH, At-Large HARRY E. DIEZEL, Kempsville - District 2 ROBERT M. DYER" Centervi//e - District 1 BARBARA M. HENLEY, Prmcess Anne- District 7 REBA S. McCLANAN, Rose Hall - District 3 JOHN E. UHRIN, Beach - District 6 RON A. VILLANUEVA, At-Large ROSEMARY WILSON, At-Large JAMES L. WOOD, Lynnhaven -District 5 CITY COUNCIL AGENDA CITY MANAGER - JAMES K SPORE CI7Y ATTORNEY - LESLIE L. LILLEY CiTY CLHRK - RUTH HODGES SMITH, MMC 8 AUGUST 2006 CITY HALL BUILDING 2401 COURTHOUSE DRIVE VIRGINIA BEACH, VIRGINIA 23456-8005 PHONE:(757) 385-4303 FAX (757) 385-5669 E-MAIL: Ctycncl@vbgov.com .... - Conference Room - 1 :30 PM I. CITY MANAGER'S BRIEFING A. RETIREE BENEFITS and UNFUNDED LIABILITIES Patricia Phillips, Director - Department of Finance Susan Walston, Chief of Staff II. CITY COUNCIL LIAISON REPORTS III. CITY COUNCIL COMMENTS IV. REVIEW OF AGENDA ITEMS V. INFORMAL SESSION - Conference Room - 3:00 PM A. CALL TO ORDER - Mayor Meyera E. Oberndorf B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION VI. FORMAL SESSION - Council Chamber - 6:00 PM A. CALL TO ORDER - Mayor Meyera E. Oberndorf B. INVOCATION: Reverend Jim Wolfcale Pastor Atlantic Shores Baptist 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 July 18, 2006 G. AGENDA FOR FORMAL SESSION H. MA YOR'S PRESENT A TION 1. 2. 3. 4. 2006 Little Miss Virginia Beach 2006 Preteen Miss Virginia Beach 2006 Teen Miss Virginia Beach 2006 Miss Virginia Beach Blair Morgan Mary Lukasiewicz Courtney Nicole Rodgers Ashley Christian Smith I. CONSENT AGENDA J. RESOLUTION/ORDINANCES 1. Resolution re a Pre-Opening Services Agreement for the Sandler Center for the Performing Arts; to AUTHORIZE the City Manager to execute the agreement; and, DEVELOP a Management Agreement with Global Spectrum LP for operation and maintenance of the SCP A. 2. Ordinance to TRANSFER $765,608 from the Department of Museums and Cultural Arts FY2006-07 operating budget to the Non-Departmental FY 2006-07 Operating Budget to better provide for the management and fund raising activities associated with the Sandler Center for the Performing Arts (SCP A) and other cultural activities. 3. Ordinance to AUTHORIZE a temporary encroachment into portions of the City's right-of- way at Brasileno Court by PATRICK J. and LISA M. HENEGHAN to construct a bulkhead, dock and boat lift. 4. Ordinances to ACCEPT and APPROPRIATE: a. $34,156 Grant from the Virginia Office of Emergency Medical Services (V aEMS) to the FY2006-07 operating budget of the Emergency Medical Services (EMS) re purchase of defibrillators in the "Four-for-Life" program. b. $15,000 from the Department of Criminal Justice for the Byrne/JAG Recruiting and Retention of Criminal Justice Professionals Grant to the Police Department's FY 2006-07 operating budget to more adequately represent the demographics ofthe City as a whole. K. PLANNING 1. Application of ROBERT M. ROUSSEAU for an Enlarf!ement of a Nonconforminf! Use at 403 16th Street to demolish an existing duplex dwelling damaged by fire, construct a single-family dwelling on the site, add a second story deck over an existing porch that is attached to the single-family dwelling already located on the site. (DISTRICT 6 - BEACH) RECOMMENDATION: APPROVAL 2. Application of OCEAN BAY HOMES, L.L.C. for a Variance to ~ 5B of the Site Plan Ordinance, Floodplain Regulations, at 314 A & B 29th Street to conform with the Federal Emergency Management Agency (FEMA) regulations. (DISTRICT 6 - BEACH) RECOMMENDATION: APPROVAL 3. Application of JANET KOTTKE for a Modification of Conditions for a Conditional Use Permit, (approved by City Council on February 12, 1990 and September 12, 1995), at 5009 Providence Road to extend the hours of operation to 6 P.M. Monday through Friday. (DISTRICT 2 - KEMPSVILLE) RECOMMENDATION: APPROVAL 4. Application of ST. MICHAEL LUTHERAN CHURCH for a Modification of Conditions for a Conditional Use Permit, (approved by City Council on October 12, 2004 and modified on August 9, 2005), at 2208 Princess Anne Road to reduce the maximum number from 150 to 100 children allowed for child care. (DISTRICT 7 - PRINCESS ANNE) RECOMMENDATION: APPROVAL 5. Application of NEW JERUSALEM CHURCH for a Conditional Use Permit re a church addition at 118 Erie Avenue to provide for appropriate family life activities, educational and administrative space for the present congregation. (DISTRICT 6 - BEACH) RECOMMENDATION: APPROVAL L. APPOINTMENTS BEACHES AND WATERWAYS COMMISSION BIKEWAYS AND TRAILS ADVISORY COMMITTEE BUILDING CODE OF APPEALS - New Construction BOARD OF ZONING APPEALS COMMUNITY MEDICAL ADVISORY COMMISSION COMMUNITY SERVICES BOARD DEVELOPMENT AUTHORITY EASTERN VIRGINIA HEALTH SYSTEMS AGENCY PARKS AND RECREATION PUBLIC LIBRARY BOARD REVIEW AND ALLOCATION COMMITTEE (COG) SOCIAL SERVICES BOARD SPORTS AUTHORITY OF HAMPTON ROADS M. UNFINISHED BUSINESS N. NEW BUSINESS O. ADJOURNMENT ********************************** PUBLIC COMMENTS Non-Agenda Items ********************************** ********* If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 385-4303 Hearing impaired, call: Virginia Relay Center at 1-800-828-1120 *********** Agenda 08/03/2006gw www.vbgov.com - 1 - MINUTES VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia 8 August 2006 Mayor Meyera E. Oberndorf called to order the City Manager's Briefing re RETIREE BENEFITS and UNFUNDED LIABILITIES in the City Council Conference Room, City Hall, on Tuesday, August 8, 2006, at 1:30 P.M. Council Members Present: Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Absent: William R. "Bill" DeSteph [Entered: 4:17P.M. - business meeting previously scheduled] Ron A. Villanueva [Entered: 4:40 P.M. - returning from meeting in Washington, D. C.] August 8, 2006 - 2 - CITY MANA GER 'S BRIEFING RETIREE BENEFITS and UNFUNDED LIABILITIES ITEM # 55468 1:30 P.M. The City Manager advised the City staff has been discussing the new accounting standards effective January 2007 for approximately the last year. These entail consequences to governments (both state and local). Virginia Beach is the first City in Hampton Roads to discuss this issue in comprehensive terms. The cost of benefits, as part of the total compensation package, is one of the large "budget drivers". The City Manager introduced Susan Walston, Chief of Staff, to further review the "cost of benefits". Mrs. Walston advised Retiree Benefits involve a broader context of total compensation. A competitive total compensation package has proven to be critical to recruit and retain the quality work force necessary to develop quality services to the community. Mrs. Walston advised there is also a changing worliforce. Patricia Phillips, Director of Finance, wished to create an awareness of financial issues. The Governmental Accounting Standards Board (GASB) establishes the financial standards for government. For comparison, the private side utilizes the Financial Accounting Standards Board (FASB). GASB Statement No. 45 is one other post employment benefits (Retire Health Care). This liability must be recognized for Financial Statements dated June 30, 2008. Retiree Benefits Part of the total compensation package Part of overall strategy to attract and retain a quality worliforce Requirements in reporting retiree benefits Reflect changes in worliforce demographics Mrs. Phillips reiterated the purpose of today 's briefing to promote an awareness of financial issues Retirement Benefits Virginia Retirement System - Defined Benefits Pension Service Basic: 50/30 or 65/5 Law Enforcement Officers (LEO) - 50/25 or 60/5 Disability Life Insurance Leave Payout - Annual and Sick Leave Health Insurance (until Medicare eligible) August 8, 2006 - 3 - CITY MANA GER 'S BRIEFING RETIREE BENEFITS and UNFUNDED LIABILITIES ITEM # 55468 (Continued) Upon retirement and until death, the employee will receive a certain amount of money each month, regardless of the investment performance of the fund. These funds are guaranteed. Princess Anne County joined the Virginia Retirement System (VRS) in 1958. The "old" City of Virginia Beach (prior to merging with Princess Anne County) joined the VRS in 1960. With the merger, the 1963 Consolidation Agreement moved forward the concept. The Virginia Retirement System (VRS) was established in the 1950's and evolved from the Teacher Retirement System established in 1908. Life Insurance, after retirement, is double the reduced salary, but will remain after retirement. The retiree will be paid for a maximum 400 hours of annual leave (normal rate of pay). Retirees are compensated for sick leave (at the rate of $28. 00 per day (8 hours). There is no limit on the number ofhours. Calculation of the Service Retirement Benefit Average Final Compensation (AFC) X 1.7% X Years of Service *A 0.5%/month reduction is applied to the unreduced benefit for each of the first sixty (60) months and 0.4% for any additional months short of meeting age or service requirements for unreduced benefits. Mrs. Phillips displayed charts titled; Virginia Beach Annual Contribution - VRS Pension and Life Insurance, City Annual Pension Contribution, The increase in the Unfunded Pension Liability is driving VRS rates up. The City is expected to pay Virginia Retirement System for FY 2007 - $51,211,000 (more than double $24,411,000 paid in FY 2004). Just between FY 2006 and FY 2007, there has been a thirty-jive percent (35%) increase in the Virginia Retirement System. The employee does not make a contribution to VRS (100% paid by the City). Concerning the City's Annual Pension Contribution, effective July 1, 2006, the rate paid VRS is 18.3% of payroll. FY 2005 is the highest unfunded liability to date at $237-MILLION. The annual contribution includes amortization of the unfunded liability. Unfunded liability is really driving the cost of the Virginia Retirement System (VRS). Causes of VRS Rate Increases Increases in the unfunded liability caused by: Increases in pay greater than assumptions - Assumption 3% Lower than projected return on investments (2001-03) Assumption 7.5% Increases in life expectancy; and therefore living longer in retirement Younger retirement ages Disability retirements August 8, 2006 - 4- C IT Y MANA G E R 'S B R IE FIN G RETIREE BENEFITS and UNFUNDED LIABILITIES ITEM # 55468 (Continued) Minimum Disability Retirement Benefit Job-related Disability 2/3 salary, taxfree; (50% if Social Security Disability received) Refund of a portion of City-paid VRS contributions Line-ol-duty health insurance for retiree and dependents until death Full life insurance until age 65 Regular Disability 50% salary, taxable (33.3% if Social Security Disability received) 10 ee Retirin on Job-Related Disabif 32.8 ears $ 82,000 $ 26,000 $103,000 $ 97,500 $226,500 Total Free Annual Pension (662/3%) $ 54,670* *Offset by portion of Workers Compensation, then full benefit received Mrs. Phillips advised the next chart illustrates that 19% of all retirements in Virginia Beach in the 1992- 2004 time period were job-related disability. Mrs. Phillips cited the comparisons with other municipalities: Chesapeake Hen rico 9% 8% State employees hired since 1999 are in the Virginia Sickness and Disability Program instead of the Virginia Retirement System Disability. Therefore, do not have the same type of disability utilized by localities. The standard for disability is very broad in the VRS system. There is no distinction made as to type of disability. Regardless of disability, the pension is the same. Mrs. Phillips categorized the percentage of individuals under the job related disability retirement: Police Fire Sheriff All Other Departments 53.4% 11.4% 6.7% 28.5% 42.8% of Police retirements are job-related disability (1992-2005) 23.4% of the Fire retirements are job- rated disability (1992-2005). The final determination concerning permission to retire with disability is made by VRS. August 8, 2006 - 5 - CITY MANA GER 'S BRIEFING RETIREE BENEFITS and UNFUNDED LIABILITIES ITEM # 55468 (Continued) Cost of Disability Retirements as a Percent of Total Retiree Retirements 35% retiree pension costs are for disability retirements Compared to: 5.5%for VaLORS (prison guards, etc.) 12.5% for State Police 18.8% for Chesapeake The main causes of Disability Retirements in Virginia Beach: back/shoulder, training, heart/lung. Some job-related disabilities may be attributable to an aging worliforce. Most disability retirees are in their late forties. Retiree Health Insurance All retirees eligible to continue on City plan up until the time they are eligible for Medicare City supplementfor those employed twenty-jive (25) years or more with the City/School and retire (or retire on a job-related disability with jive (5) or more years of City service). If not qualifYing for City supplement, retiree pays full premium City 2006 Health Premium Annual Cost $4,585 Retiree Cost +60 $4,645 GASB 45 - Accounting for Post Employment Benefits Other than Pensions Other Post-Employment Benejits (OPEB) are those the employee receives in retirement - like health insurance Will need to record a liability for the difference between PayGo and the calculated amortization (ARC) The existence of a large liability will adversely impact most governments' credit rating and ability to issue debt if there is no plan to address same. August 8, 2006 - 6 - CITY MANA GER 'S BRIEFING RETIREE BENEFITS and UNFUNDED LIABILITIES ITEM # 55468 (Continued) Summary of Vireinia Beach Other Post-Employment Benefits (OPEB) Liability Citv Schools Total Actuarial Liability $ 170.2 $ 191.3 $ 361.5 Annual Required 18.3 24.2 42.5 Contribution Pay-Go 4.2 6.2 10.4 Net Contribution increase $ 14.1 $ 18.0 $ 32.1 if ARC fully paid Council Lady McClanan inquired relative the localities which are not a part of the Virginia Retirement System. Mrs. Phillips advised, if the locality is not a member of the Virginia Retirement System, then by State law, the locality must have a comparable plan. The Benefits Executive Committee has been workingfor several months to develop strategies to reduce or manage the cost. The State's retiree health care liability is over $2-BILLlON. Mrs. Phillips advised, under the Law Enforcement Officer (LEO) disability benefits, there is a $10,000 plus year supplement to pension. This benefit might be lost, if a non-LEO position were taken. Next Steps Develop basic principles to reflect our goals and to incentivize healthy behaviors Improve internal management of disability issues Develop a more stringent prevention program Implement internal policies on return-to-work Identify potential items for Legislative Package Recommend JLARC do a comprehensive study of VRS benefits to include law enforcement benefits disability provisions, return-to-work and defined contribution plans Continue staff review to address retiree health options and unfunded liability as part of budget driver process Councilman Diezel advised solutions need to be examined re the growth of the compensation package. Councilman Diezel suggested, as an example, there is no reason the annual sick and annual leaves could not be contributed to a retirement process as opposed to a cash payout. This is permissible to some extent under Virginia Retirement System rules. Full duty or no duty could also be reviewed. In Fairfax, if one retires on disability, it must be a catastrophic disability. By Code, Virginia Beach is able to define our disability differently. The City Manager advised as recently as 2001, the City was 100%funded in the retirement system. At the present time, the City has a $237-MILLION liability. August 8, 2006 - 7 - CITY COUNCIL COMMENTS 2:30P.M. ITEM # 55469 Councilman Dyer announced the First Annual Level Green Civic League Picnic on Saturday, August 12, 2006, 12:00 NOON to 7:00 P.M. ITEM # 55470 Council Lady Wilson referenced attendance during National Night Out 2006. Tuesday, August 1, 2006. Virginia Beach joined forces with thousands of communities nationwide for the 23rd Annual National Night Out - "America's Night Out Against Crime ". City Council chose a very good time for their annual vacation. To assure future participation by City Council, Mayor Oberndorf noted future City Council vacations will be scheduled to assure no Council meeting will conflict with the First Tuesday in August, the nationally scheduled National Night Out. ITEM # 55471 Council Lady McClanan referenced the Sunday July 30, 2006, issue of The Washington Post, TRA VEL section. Council Lady McClanan referenced the descriptive article noting 6 hours travel time from Washington, D.C. to Virginia Beach. The traveler had inquired of AAA 's middle Atlantic office how to avoid the "200-mile parking lot". This type of publicity is not needed. Mayor Oberndorf suggested this article be included within the package to the General Assembly. The City Manager shall include this article in the City Manager's Update. The City has responded back to the writer of the article with some pertinent suggestions. Approximately 300,000 visitors per year are lost due to this perception and reality of the traffic congestion. ITEM # 55472 Mayor Oberndorf referenced the excellent Editorial letter in The Virginian Pilot (August 8, 2006) from the General Education Advisory - Bryant and Stratton College. August 8, 2006 - 8 - AGENDA RE VIE W SESION 2:35 P.M. ITEM # 55473 Resolution REITERATINGfull supportfor Old Dominion University's opening of a four-year campus at the Virginia Beach Higher Education Center Mayor Oberndorf distributed this Resolution and requested the item be ADDED-ON to the Agenda. All City Council members concurred with their support of the Resolution and will add their names to the request. ITEM # 55474 J. RESOLUTION/ORDINANCE 1. Resolution re a Pre-Opening Services Agreement for the Sandler Center for the Performing Arts; to AUTHORIZE the City Manager to execute the agreement; and, DEVELOP a Management Agreement with Global Spectrum LP for operation and maintenance of the SCP A. 2. Ordinance to TRANSFER $765,608 from the Department of Museums and Cultural Arts FY2006-07 operating budget to the Non-Departmental FY 2006-07 Operating Budget to better provide for the management and fund raising activities associated with the Sandler Center for the Performing Arts (SCP A) and other cultural activities. Mayor Oberndorf and Councilman Wood, Liaisons to the Sandler Center for Performing Arts, requested a Briefing re the Sandler Center, the Management Agreement and Transfer of Funds be scheduled for the Formal Session. Patricia Phillips, Director of Finance, and Emily L. Spruill, Cultural Arts Coordinator, are developing the power point for their presentation in the Formal Session. ITEM # 55475 BY CONSENSUS, the following shall compose the CONSENT AGENDA: J. RESOLUTIONS/ORDINANCES 3. Ordinance to AUTHORIZE a temporary encroachment into portions of the City's right-ol-way at Brasileno Court by PATRICK J. and LISA M. HENEGHAN to construct a bulkhead, dock and boat lift. 4. Ordinances to ACCEPT and APPROPRIATE: a. $34,156 Grantfrom the Virginia Office of Emergency Medical Services (VaEMS) to the FY2006-07 operating budget of the Emergency Medical Services (EMS) re purchase of defibrillators in the "Four-for-Life" program. b. $15,000 from the Department of Criminal Justice for the Byrne/JAG Recruiting and Retention of Criminal Justice Professionals Grant to the Police Department's FY 2006-07 operating budget to more adequately represent the demographics of the City as a whole. August 8, 2006 - 9 - AGENDA RE VIE W SESION ITEM # 55476 BY CONSENSUS, the following shall compose the PLANNING BY CONSENT AGENDA: K. PLANNING 1. Application of ROBERT M. ROUSSEAU for an Enlarf!ement of a Nonconforminf! Use at 403 16th Street to demolish an existing duplex dwelling damaged by fire, construct a single-family dwelling on the site, add a second story deck over an existing porch that is attached to the single-family dwelling already located on the site. (DISTRICT 6 - BEACH) 2. Application of OCEAN BAY HOMES, L.L.C.for a Variance to ~ 5B of the Site Plan Ordinance, Floodplain Regulations, at 314 A & B 21h Street to conform with the Federal Emergency Management Agency (FEMA) regulations. (DISTRICT 6 - BEACH) 3. Application of JANET KOTTKE for a Modification of Conditions for a Conditional Use Permit, (approved by City Council on February 12, 1990 and September 12, 1995), at 5009 Providence Road to extend the hours of operation to 6 P.M. Monday through Friday. (DISTRICT 2 - KEMPSVILLE) 4. Application of ST. MICHAEL LUTHERAN CHURCH for a Modification of Conditions for a Conditional Use Permit, (approved by City Council on October 12, 2004 and modified on August 9, 2005), at 2208 Princess Anne Road to reduce the maximum number from 150 to 100 children allowed for child care. (DISTRICT 7 - PRINCESS ANNE) 5. Application of NEW JERUSALEM CHURCH for a Conditional Use Permit re a church addition at 118 Erie Avenue to provide for appropriate family life activities, educational and administrative space for the present congregation. (DISTRICT 6 - BEACH) August 8, 2006 - 10- ITEM # 55477 Mayor Meyera E. Oberndorf entertained a motion to permit City Council to conduct its CLOSED SESSION, pursuant to Section 2.1-3711 (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)(1) Council Appointments: Boards, Commissions, Committees, Authorities and Agencies PUBLIC CONTRACT: Discussion of the award ofapublic contract involving the expenditure of public funds, and discussion of the terms and scope of such contract, where discussion in an open session would adversely affect the bargaining position or negotiating strategy of the public body, pursuant to Section 2.2-3711 (A) (30) TPC Legislative Services Contract PUBLICL Y-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). Norfolk-Southern Right-aI-Way and TPC LEGAL MA TTERS: 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 SPSA Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council voted to proceed into CLOSED SESSION (2:40 P.M.). August 8, 2006 - 11 - ITEM # 55477 (Continued) Voting: 9-0 Council Members Voting Aye: Harry E. Diezel, Robert M. Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: William R. "Bill" DeSteph [Entered: 4:17P.M - business meeting Previously scheduled) Ron A. Villanueva [Entered: 4:40 P.M - returningfrom Meeting in Washington, D.C.) (Closed Session: 2:40 P.M. - 5:40 P.M.) (Dinner: 5:40 P.M. -5:59 P.M.) August 8, 2006 - 12 - FORMAL SESSION VIRGINIA BEACH CITY COUNCIL August 8, 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, August 8, 2006, at 6:00 P.M Council Members Present: William R. "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Absent: None INVOCATION: Reverend Huge Doyle Atlantic Shores Baptist 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 accounting firm of Goodman and Company and is directly and indirectly involved in many of Goodman and Company's transactions. However, due to the size of Goodman and Company and the volume of transactions it handles in any given year, Goodman and Company has an interest in numerous matters in which her husband is not personally involved and of which she does not have personal knowledge. In order to ensure her compliance with both the letter and the spirit of the State and Local Government Conflict of Interests Act, it is her practice to thoroughly review the agenda for each meeting of City Council for the purpose of identifying any matters in which she might have an actual or potential conflict. If, during her review she identifies any matters, she will prepare and file the appropriate disclosure letter to be recorded in the official records of City Council. Council Lady Wilson regularly makes this disclosure. Council Lady Wilson's letter of January 27,2004, is hereby made a part of the record. Council Lady Rosemary Wilson DISCLOSED she is a real estate agent affiliated with Prudential Decker Realty. Because of the nature of Real Estate Agent affiliation, the size of Prudential, and the volume of transactions it handles in any given year, Prudential has an interest in numerous matters in which she is not personally involved and of which she does not have personal knowledge. In order to ensure her compliance with both the letter and the spirit of the State and Local Government Conflict of Interests Act, it is her practice to thoroughly review the agenda for each meeting of City Council for the purpose of identifying any matters in which she might have an actual or potential conflict. If, during her review she identifies any matters, she will prepare and file the appropriate disclosure letter to be recorded in the official records of City Council. Council Lady Wilson regularly makes this disclosure. Council Lady Wilson's letter of January 27, 2004, is hereby made a part of the record. August 8, 2006 - 13 - Item V-E. CERTIFICATION OF CLOSED SESSION ITEM # 55478 Upon motion by Councilman Wood, seconded by Councilman Dyer, City Council CERTIFIED THE CLOSED SESSION TO BE IN ACCORDANCE WITH THE MOTION TO RECESS. Only public business matters lawfully exemptfrom 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, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Abstaining: William R. "Bill" DeSteph Council Members Absent: None Councilman DeSteph ABSTAINED as he arrived late from a business meeting, August 8, 2006 RESOLUTION CERTIFICATION OF CLOSED SESSION VIRGINIA BEACH CITY COUNCIL WHEREA.9. The Virginia Beach City Council convened into CLOSED SESSION, pursuant to the affirmative vote recorded in ITEM # 55477, Page 10, and in accordance with the provisions of The Virginia Freedom of Information A~ and, WHEREA.9. Section 2.2-3712 of the Code of Virginia requires a certification by the governing body that such Closed Session was conducted in conformity with Virginia law. NOW; THEREFORE, BE IT RESOL VEn 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. th Hodges Smith, MMC City Clerk August 8, 2006 - 14 - Item V-F.1.. MINUTES ITEM #55479 Upon motion by Councilman Dyer, seconded by Council Lady Wilson, City Council APPROVED Minutes of the INFORMAL and FORMAL SESSIONS of July 18, 2006. Voting: 11-0 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None August 8, 2006 - 15 - Item V-G. ADOPT AGENDA FOR FORMAL SESSION ITEM #55480 BY CONSENSUS, City Council ADOPTED: AGENDA FOR THE FORMAL SESSION ADDED: Resolution REITERA TING full support for Old Dominion University's opening of a four-year campus at the Virginia Beach Higher Education Center. August 8, 2006 - 16 - Item V-H.J. RECOGNITION ITEM #55481 Mayor Oberndorf recognized the following Boy Scouts in attendance to fulfill requirements for their badges: Troop 700 Atlantic Shores Baptist Church Brian Cadenhead Christopher Wallace Jacob Messier Nicholas Anderson David Anderson Christopher Kopiczak Johnathan Overton Victoria Overton Treasurer Kirsten Kopiczak Secretary Alisa Cadenhead Activities Chair - Citizenship of the Community Robert Messier Committee Member Wayne Wallace Committee Member Chuck Anderson Committee Member August 8, 2006 - 17 - Item V-H. 2. MAYOR'S PRESENTATION ITEM #55482 Polly Pearce, Executive Director - Miss Virginia Beach Pageant, introduced Deborah Helton, new Co- Director. She has been chaperoning the Beauty Pageant contestants to Roanoke for the past fifteen (15) years. Polly Pearce recognized: 2006 Little Miss Virginia Beach Blair Morgan 2006 Preteen Miss Virginia Beach Mary Lukasiewicz 2006 Teen Miss Virginia Beach Courtney Nicole Rodgers 2006 Miss Virginia Beach Ashley Christian Smith Mayor Oberndorf PRESENTED the City Seal Pewter Cup to Blair, Mary, Courtney and Ashley. August 8, 2006 - 18 - Item V-I. ADD-ON ITEM #55483 Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council ADDED to the Agenda: Resolution REITERA TING full support for Old Dominion University's opening of a four-year campus at the Virginia Beach Higher Education Center Voting: 11-0 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None August 8, 2006 - 19 - Item V-J. PRESENTATION ITEM #55484 SANDLER CENTER FOR THE PERFORMING ARTS The City Manager referenced distribution of the Pre-Opening Services Agreement - The Sandler Center for the Performing Arts at Virginia Beach (which is hereby made a part of the record). Mayor Oberndorf and Councilman Wood, Liaisons to The Sandler Center for Performing Arts requested a Briefing re the Sandler Center, the Management Agreement and Transfer of Funds. The City Manager introduced Emily L. Spruill, Cultural Arts Co-ordinator. Mrs. Spruill displayed the Virtual Tour of The Sandler Center for the Performing Arts. The Virtual tour displays an exact replica of the Theatre in 2007. FOUNDATION PROGRESS i. f Achievements: · Received over $8.5-Million in cash and pledges · Raised almost 70% of fund raising goal · Secured naming rights for Grand Staircase Current Activities: · Cultivating other named gifts · Expanding Capital Campaign leadership and gifts · Developed virtual tour of facility · Developed newsletter PROJECT STATUS November 2004: Design-Build Team chosen using PPEA Budqet Land Garage Clancy & Theys Contract Contingencies Total Budget $ 0.4 3.9 40.3 2.1 $46-Million Fundinq City Other/Private $35.0 11.7 -Million August 8, 2006 - 20- Item V-J. PRESENTATION ITEM #55484 (Continued) SANDLER CENTER FOR THE PERFORMING ARTS A pledge in the amount of $750,000 has been received from Mrs. Julia Riddle (naming the Grand Staircase in memory of her husband, Tom Riddle - Riddle Automotive. $1.4-MILLION has been secured from the State of Virginia Operating Budget. The quarterly newsletter "Center Stage" will be distributed to one thousand (1,000) households, providing updates on the design andfundraising. A 3-D scale model of The Sandler Center for the Performing Arts is being completed. The model will first be displayed in the lobby of the Amada-HojJler Tower and then subsequently displayed throughout Hampton Roads. Mrs. Spruill displayed a photograph of the Construction status as of July 31,2006. Project Status - Design-Build Team Clancy & Theys Construction Company Construction Manager CMSS Architects Architect - Site Design and Theatre Shell Philip Johnson-Alan Ritchie Architects Theater Interior Auerbach, Pollock, Friedlander Theatre Consultant Kirkegaard Associates Acoustic Consultant RFP SELECTION PROCESS ...\/! . {911"" ((;/'1."'/' '" ... .UlItWII )tt.1~_' .a~I.~ . Selection Committee made up of volunteer leadership from the Theatre Advisory Committee, Virginia Beach Performing Arts Center Foundation and City Staff . RFP Issued on April 4, 2005 . Interviewed proposers . Involved local arts organizations . Established criteria by which we will preserve booking priorities for local arts groups August 8, 2006 - 21 - Item V-J. PRESENTATION ITEM #55484 (Continued) SANDLER CENTER FOR THE PERFORMING ARTS Mrs. Spruill advised Global Spectrum is a member of the Comcast Family of companies, a subsidiary of Comcast-Spectator. RECOMMENDATION \ 'j J C(. ': 'l 1 (I' .../' . ./.... .., " 'IB~lJ_~~tut"'I~ _"~~ Contract with Global Spectrum for following reasons: · Extensive facility management experience · Extensive booking experience - established contacts · Does not add numerous, permanent City staff · Corporate competitive advantage - numerous facilities for multiple bookings · Established software systems Patricia Phillips, Director of Finance, provided a synopsis of the contracts and costs involved. PRE-OPENING SERVICES CONTRACT ._\. ') . C /. 1, / ~. ,,;' r;/~," '~~t" I ~tfl'I"_ I _~t'm.;~~~m · Review of Facility design & construction ~ Hardware schedules, interior finish schedules, graphics and signage, recommend FF&E, coordinate transitions from construction project to operating facility . Fine tune operating pro-form as . Develop operating & maintenance manual · Book & schedule events (as outlined in Booking Policy) . Develop reporting system & accounting systems . Develop marketing plan & advertising campaign · Plan Grand Opening events . Hire staff Pre-Opening Services Management Fee: (April 2006-August 2007) = $99,000 Direct Operating Expenses = $531,000 August 8, 2006 - 22- Item V-J. PRESENTATION ITEM #55484 (Continued) SANDLER CENTER FOR THE PERFORMING ARTS MANAGEMENT CONTRACT · Manage all aspects of Facility: >> To include managing events, purchasing, payroll, fire prevention, security, crowd control, routine repairs, preventive maintenance, janitorial services, promotions, advertising, energy conservation, box office, and admission procedures · Book & schedule events (as outlined in Booking Policy) · Maintain detailed, accurate financial and other records · Submit monthly reports to City · Manage & operate concessions FY08 Management Fee: $120,000 + (incentive fee) CITY'S RIGHTS & RESPONSILBITIES City's Rights: · Monthly reporting and oversight by City's Contract Administrator · Annual report to City Council through City Manager · Periodic reports through Council liaisons · Office space for City staff · Use of Center by City & Schools City's Responsibilities: · Capital needs · Net operating costs & management fee August 8, 2006 - 23 - Item V-J. PRESENTATION ITEM #55484 {Continued} SANDLER CENTER FOR THE PERFORMING ARTS TOTAL ESTIMATED COSTS Pre-Opening Costs Management Fee $ 15,000 $0 $ 15,000 $ 72,000 $ 351,000 $ 423,000 $ 12,000 $ 184,000 $ 196,000 Operating Costs Total Management Contract Management Fee N/A N/A $ 125,000 Operating Loss N/A N/A $ 499,334 * Total N/A N/A $ 624,334 *Excludes grand opening and special service costs (est.) $500,000: Capital reserves may be necessary Emily Spruill advised Maestro David Kunkel- Virginia Beach City Symphony, has decided not to schedule a Christmas Performance due to lack of audience. Coming Attractions August 8, 2006 Fall 2006 Fall 2007 Execute Per-Opening Services Contract Execute Management Contract Grand Opening Events August 8, 2006 - 24- Item v'J. RESOLUTIONS/ORDINANCES ITEM #55485 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council APPROVED IN ONE MOTION Resolutions/Ordinances 1, 2, 3, 4a/b and 5 (ADD-ON). Voting: 11-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McC/anan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None August 8, 2006 - 25 - Item v'J.l. RESOLUTIONS/ORDINANCES ITEM #55486 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED: Resolution re a Pre-Opening Services Agreement for the Sandler Center for the Performing Arts; to A UTHORIZE the City Manager to execute the agreement; and, DEVELOP a Management Agreement with Global Spectrum LP for operation and maintenance of the SCP A. Voting: 11-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None August 8, 2006 1 2 3 4 5 A RESOLUTION APPROVING A PRE-OPENING SERVICES AGREEMENT FOR THE SANDLER CENTER FOR THE PERFORMING ARTS AND AUTHORIZING THE CITY MANANGER TO EXECUTE THE AGREEMENT FOR THE CITY 6 WHEREAS, the Sandler Center for the Performing Arts (SCPA), 7 a 1200 seat performance hall located in Town Center, is 8 scheduled to open in the fall of 2007; 9 WHEREAS, following a Request for Proposal (RFP) , a 10 selection committee presented its recommendation to the City 11 Council that the City contract with Global Spectrum. L. P. for 12 the operation, programming and maintenance of the SCPA; 13 WHEREAS, the City Council agrees with the recommendation of 14 the selection committee and desires that the City Manager 15 develop a management agreement with Global Spectrum, L. P. for 16 the operation, programming and maintenance of the SCPA; and 17 WHEREAS, prior to the preparation of the management 18 agreement, the City Council desires to engage the services of 19 Global Spectrum, L.P. for the performance of certain pre-opening 20 services. 21 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY 22 OF VIRGINIA BEACH, VIRGINIA THAT: 23 1. The Pre-Opening Services Agreement presented to the 24 City Council and on file with the City Clerk is approved and the 25 City Manager is authorized to execute same on behalf of the City 26 of Virginia Beach. 27 2 . The City Manager is authorized to develop a Management 28 Agreement with Global Spectrum, L. P. to address the operation, 29 programming and maintenance of the SCPA when it opens, and the 30 City Manager shall present the Management Agreement to the City 31 Council for its approval. 32 Adopted by the City Council of the City of Virginia Beach, 33 Virginia, on this 8th day of August , 2006. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: tZi\; c~io~ce Arts CA-10096 PA/GG/ordres/Global Spectrum RES August 1, 2006 R-3 SUMMARY OF CONTRACT TERMS Pre-opening Services Agreement for the Sandler Center for the Performing Arts. Parties: City and Global Spectrum, L.P., a Delaware limited partnership Purpose: Global Spectrum has been selected to manage the operations of the Sandler Center when it opens. The parties recognize that Global Spectrum should be engaged to perform certain pre-opening services to assure an orderly opening. Services to be provided by Global Spectrum pursuant to the Pre-Opening Services Agreement: . Review of Facility design & construction . Hardware schedules, interior finish schedules, graphics and signage, recommend FF &E, coordinate transitions from construction project to operating facility . Fine tune operating pro-formas . Develop operating and maintenance manual . Develop plan for concessions operations . Oversee booking and scheduling of events (as outlined in Booking Policy) . Develop reporting system and accounting systems . Develop marketing plan, advertising campaign and materials . Maintain ongoing community relations and exposure . Plan Grand Opening events . Hire staff . Provide monthly reporting to City's Contract Administrator . Provide periodic reports to City Council through Council Liaisons . Provide Annual Report to City Council through City Manager Cost: Pre-opening Services Management Fee (April 2006 - August 2007) Direct Operating Expenses $ 99,000 $531,000 Other Terms: Global Spectrum indemnifies and holds harmless the City and its employees; Global Spectrum to maintain appropriate levels of insurance coverage; Global Spectrum is an independent contractor and will hire its own employees; Standard non-discrimination, drug free workplace and choice of lawlvenue clauses; The City's Contract Administrator will be the City Manager or his designee; and The parties agree to negotiate in good faith a management agreement for the management and operation of the Sandler Center when it opens. PRE-OPENING SERVICES AGREEMENT THE SANDLER CENTER FOR THE PERFORMING ARTS AT VIRGINIA BEACH This Pre-Opening Services Agreement for the Sandler Center for the Performing Arts at Virginia Beach ("Agreement") is made as of the 21 st day of July, 2006 ("Effective Date"), by and between the City of Virginia Beach, a body politic and corporate and political subdivision of the Commonwealth of Virginia ("City"), and Global Spectrum, L.P., a Delaware limited partnership ("Manager"). RECITALS WHEREAS, the City has engaged a third party to plan, engineer, design (both exterior and interior), and construct a twelve hundred seat (1200) professional quality performance hall in the City of Virginia Beach, Virginia, for concerts, performances and family shows, to be known as the Sandler Center for the Performing Arts at Virginia Beach ("Facility"); and WHEREAS, the Facility is scheduled to open to the public for event performances on October 1, 2007; and WHEREAS, the City desires to engage Manager to perform certain specified pre-opening services with respect to the Facility, such services commencing upon the Effective Date and ending on the date on which the Facility opens to the general public for an event performance (the "Opening Date"), and Manager desires to accept such engagement, pursuant to the terms and conditions contained herein; and WHEREAS, the City has selected Manager to manage the operations of the Facility following the Opening Date, pursuant to the terms and conditions contained in the City's Request for Proposal dated April 5, 2005 ("RFP"), and Manager's Response to the RFP dated May 27,2005 ("RFP Response"), and the parties agree that, promptly following execution of this Agreement, they will negotiate in good faith a written management agreement reflecting such terms and conditions, and any other terms the parties mutually agree to include in such written agreement; and NOW THEREFORE, for and in consideration of the foregoing, the mutual covenants and promises hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows: ARTICLE I THE FACILITY Section 1.1. Description of the Facility. All references to the Facility in this Agreement shall be deemed to include, and Manager's duties hereunder shall cover, the outdoor performance plaza, lobby areas, performance theatres, lounges, performer support areas, rehearsal halls, stage support areas, meeting rooms, common areas, executive and other offices, storage and utility facilities, box offices, and the entrances, grounds, and sidewalks surrounding the Facility and adjacent thereto, and any other spaces in the Facility. Section 1.2. Definitions. For the purposes of this Agreement and the various covenants, conditions, terms and provisions which follow, the d~finitions and identifications set forth below are considered to be correct and true and are agreed upon by the parties. "Affiliate" shall mean any entity that directly or indirectly, through one or more intermediaries, controls or is controlled by Manager. For purposes of this definition, "control" means the ownership of equity securities or other ownership interests that represent more than 40% of the voting power of the controlled entity. For purposes of this Agreement, any entity controlled by Manager's parent, Comcast-Spectacor, L.P., or its parent, Comcast Corporation, shall be considered an "Affiliate" of Manager. "City Contract Administrator" shall mean the City Contract Administrator described in Section 6.1. "Environmental Law" or "Environmental Laws" shall mean any and all federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees or requirements of any Governmental Authority with jurisdiction over the City or the Facility regulating, relating to or imposing liability or standards of conduct concerning any Hazardous Materials or Petroleum Products or environmental protection as in effect at the Effective Date hereof or at any time in the future_ "Financing Documents" shall mean any of the agreements, instruments or other documents pursuant to which, or in connection with which, the Tax-Exempt Bonds have or will be issued to finance a portion of the cost of the construction of the Facility. "Governmental Authority" shall mean any Federal, State, municipal or other governmental department, commission, board, bureau, agency or instrumentality, or any court, in each case, of the United States. "Hazardous Materials" shall mean any hazardous material, hazardous waste, infectious medical waste, or hazardous or toxic substance defined or regulated as such in or under any Environmental Law, including, without limitation, materials exhibiting the characteristics of igniteability, corrosivity, reactivity or extraction procedure toxicity, as such terms are defined in connection with hazardous materials or hazardous wastes or hazardous or toxic substances in any Environmental Law. "Minority-owned Business" or "Minority-owned Businesses" shall mean a business or other entity that is at least fifty-one (51) percent owned and controlled by one or more socially and economically disadvantaged person(s). For purposes of this definition, the term "control" shall mean exercising the power to make policy decisions and being actively involved in day-to- day management. Such disadvantage may arise from cultural, racial, chronic economic circumstances or background, or other similar cause. Such persons include, but are not limited to, Black Americans, Hispanic Americans, Asian Americans, Eskimos, and Aleuts. "Woman-owned Business" or "Woman-owned Businesses" shall mean a business or other entity that is at least fifty-one (51) percent owned and controlled by a woman or women. For purposes of this definition, the term "control" shall mean exercising power to make policy decisions and being actively involved in day-to-day management. 2 "Petroleum Products" shall mean gasoline, diesel fuel, motor oil, waste or used oil, heating oil, kerosene and any other petroleum products. "Procurement Laws" shall mean the Virginia Public Procurement Act (Va. Code S2.2- 4300 et seq.) and the procurement laws of the City (Virginia Beach City Code Article VI, Chapter 2). "Tax-Exempt Bonds" shall have the meaning assigned to such term in Section 18.1. ARTICLE II SCOPE OF SERVICES Section 2.1. Engagement. City hereby engages Manager during the Term (as defined in Section 4.1 below) to perform the pre-opening services described in Section 2.2 below. Manager hereby accepts such engagement and agrees to perform and furnish necessary pre- opening services in the most efficient manner consistent with the pre-opening services of other first-class performance halls and in compliance with all applicable statutes, ordinances, laws, rules, regulations and requirements of Federal, State, City and other local authorities having jurisdiction over the Facility and its use, all pursuant to the terms and conditions contained herein, and subject at all times to the limitations of the Expense Budget. Section 2.2. Pre-Opening Duties of Manager. Prior to the Opening Date, Manager agrees to provide, if requested by the City, the following pre-opening services in order to facilitate a proper and orderly opening of the Facility: (a) Pre-opening Review of Facility Design and Construction. Manager shall perform the following pre-opening consulting services related to the review of the Facility design and construction: (i) Advise the City on any construction and operational issues with respect to the Facility that may arise during the pre-opening period. The City acknowledges that Manager's employees, agents and subcontractors are not, nor do they purport to be, certified architects, engineers or general contractors, and that any advice concerning construction shall be limited to the operational aspects of such construction. The City shall not be obligated to implement Manager's construction or operational suggestions. (ii) Review the hardware schedules for the Facility and make recommendations for a keying plan to be utilized, emphasizing the development of a long-term focus on promoting building security and safety needs. (iii) Review the interior finish schedule and plan for the Facility and provide comments and recommendations, emphasizing the need for cost-effective and durable surfaces, equipment and materials. (iv) Review the graphics and signage package in and around the Facility to ensure that the package meets the need of the anticipated Event schedule and related vehicle-patron traffic patterns. 3 (v) Provide recommendations to the City on the design and construction documents as they relate to operational issu{1S. Such recommendations shall be provided in a preliminary written report ("Preliminary Report") to be delivered by Man~ger to the City within 30 days following the Effective Date. A final written report shali be delivered to the City within 90 days following delivery of the Preliminary Report ("Final Report"). A plan design review team consisting of Manager's operations executives shall review the components of the overall design and shall make recommendations to the City regarding the design and construction documents. The plan design review, the Preliminary Report and the Final Report shall analyze the following components ofthe design and construction documents: 1) Show promoter requirements; 2) Patron services and amenities; 3) Food, beverage and catering services; Ll'\ P<lr1...;nn <Inri h"e n;"1..._,,n <Inri rlrron_AfT n<lr1...;nn <Inri t.-"Ff1,.. ., ..... u..&...I."-......I...I.6 L4....I.~ v__v .t'..I.-..I."- ......y '1..4-......'-"" ,,-,"..I.'-'.t-' '-'..I..L, yu........lrt....I..I..l.6 '-4.1...1.'-1. \."'U..L.I..I.'-" management; 5) Security services and public safety; 6) Information technology requirements; 7) Event staging/set-up requirements; 8) Requirements of potential prime tenants and community usage expectations; 9) Storage (basic requirements and ability to meet the challenges of rapid changeover); 1 0) Utility consumption and control; 11) Revenue opportunities (signage, food and beverage, merchandising, parking); 12) Operational efficiencies with regard to housekeeping, maintenance, and traffic flow, especially show move-in and move-out access; 13) Applicable codes, especially as they relate to user requirements and the maintenance of necessary aisle ways and routes of passage as they affect capacity and public safety; 14) Communications systems (including alarm systems); 15) ADA and OSHA compliance; 16) Medical/first aid services; 17) Staffing levels and how they are impacted by design elements; and 18) TV/Media broadcasting and facility hook-ups services. (vi) Review and comment on reports and studies provided by the City's consultants which are required for the design of the Facility and which affect operations, including, but not limited to, an acoustical study and other related studies or reports. (vii) Develop and recommend a proposed inventory of furniture, fixtures and equipment to be used at the Facility, and assist the City with its procurement of such furniture, fixtures and equipment. 4 (viii) Observe the construction process with scheduled Facility VISItS with the City's representatives and conduct various site tours for individuals and groups. (ix) Coordinate transition from construction project to an operating Facility. (b) Pre-Opening Proiect Coordination Consulting. Manager shall develop the following operational pro formas: (i) Projected number of annual events or performances, projected attendance at each event or performance, and other relevant event-related information. (ii) Staff organizational chart, job descriptions, salaries and benefits and a staffing phase-in plan. (iii) First full operating-year revenue and expense projections. (c) Pre-Opening Operational Consulting. Manager shall perform the following consulting services related to the pre-opening operational start-up of the Facility: (i) Prepare within one hundred eighty (180) days after the Effective Date an Operations Manual for the Facility ("Operations Manual"), and submit the same to the City for its approval. The City shall be entitled to require revisions to the Operations Manual prior to granting such initial approval, which revisions Manager hereby agrees to implement, provided that any additional operational costs resulting from such revisions shall be reflected in an amendment to the Expense Budget. Following initial approval thereof, the Operations Manual may thereafter be amended pursuant to such procedures as are set forth therein for such amendment, subject in all respects to the approval of the City Contract Administrator. The parties acknowledge that the Operations Manual is intended to be an on-going work in process that shall be continuously updated. The Operations Manual shall include, without limitation: 1) A priority booking policy for the Facility, a copy of which is attached hereto as Exhibit A. The booking policy may be modified from time to time by the mutual agreement of the parties. Manager must obtain the approval of the City prior to booking events in the categories set forth in Section I of Exhibit A-I. Manager will at no time enter into exclusive event booking contracts without approval by the City. 2) A show producer's guide and user rental contract meeting the requirements of Section 7. L 3) Policies, procedures, service pricing, lease agreement terms and conditions, and prices, rates and rate schedules for the licenses, agreements, contracts and other commitments relating to the Facility to be negotiated by Manager in the course of its management, operation and promotion of the 5 Facility. In determining such prices and rate schedules, Manager shall evaluate c~mparable charges for similar goods and services at similar and/or competing facilities. 4) House policies (rules and regulations of usage). (ii) Procure, negotiate, execute in its own name and its capacity as manager of the Facility, deliver and administer - in compliance with procurement procedures set forth in Exhibit B which procedures shall be incorporated into the Operations Manual - any and all licenses, occupancy agreements, rental agreements, booking commitments, advertising agreements, concession agreements, supplier agreements, service contracts (including, without limitation, contracts for utility service; cleaning, decorating and set-up; interior and exterior landscaping; snow removal; general maintenance; maintenance and inspection of HV AC systems, elevators, stage equipment, fire control panel and other safety equipment; staffing and personnel needs, including guards and ushers; and other services which are necessary or appropriate) and all other contracts and agreements in connection with the management, promotion and operation of the Facility. If any such license, agreement, commitment or contract other than those involving the license, lease or rental of the Facility in the ordinary course of business has a term that expires more than three (3) years after the Opening Date, such license, agreement, commitment or contract shall be approved in advance by the City. Manager hereby agrees that it shall inform the City about and obtain prior approval before entering or proposing to enter into any contract, license or agreement with an Affiliate, which contract, regardless of the City's approval thereof, shall be at terms and for prices not greater than those customarily charged by such Affiliate for comparable goods and services elsewhere and which are competitive within the industry. Except for the procurement of goods and services in an amount of $1,000 or less, documentation shall be submitted in a timely manner to the City Contract Administrator evidencing the competitive nature of all goods or services obtained by Manager in its capacity as manager of the Facility and the basis for the selection of such goods and services. Prior to procuring any such services, Manager shall coordinate with the City to determine if the City already has an established vendor(s) that can provide any or all of the above- referenced services at a favorable cost. All such agreements shall provide for termination in the event (i) the City, in its sole discretion, decides not to build or not complete the building of the Facility, or (ii) the Facility is otherwise not constructed, for any reason. (iii) Develop personnel policies for its employees. (iv) Establish charts of accounts and a total accounting system including: 1) Payroll processing, 2) Accounts receivable and payable, 3) Bank accounts, 4) Financial reports, and 5) Box office controls. 6 (v) Develop comprehensive emergency plans (fire, bomb threat, hazardous materials, flood, terrorism, etc.). (vi) Establish preventative maintenance systems for all Systems and mechanical and electrical equipment. (vii) Acquire necessary permits, or assist the City in its acquisition of necessary permits, as applicable. (viii) Develop plan for conceSSIOns operations and reVIew food and beverage service plan, including: 1) Layout, location, and design of concession stands, 2) Catering facilities, 3) Portable outlets, 4) Support and preparation areas, 5) Smallwares, and 6) Furniture, fixtures and equipment. (ix) Require that all material vendor/license agreements entered into by Manager during the Term contain standard indemnification and insurance obligations on the part of each vendor/licensee for the benefit of the City and Manager, and provide the City with a copy of all such agreements, if possible, thirty (30) business days prior to the date any such agreement becomes effective or, othetwise, the date of the event that is the subject of such agreement, as applicable. (x) Identify risk management and insurance needs at the Facility, as more fully described in Article IX below. (d) Pre-Opening Venue Marketing and Scheduling Consulting. Manager (either itself or through Virginia Arts Festival, Inc. ("V AF")) shall perform the following consulting services related to pre-opening marketing of the Facility, with the City hereby acknowledging that V AF will be performing certain of the services relating to event booking, scheduling, marketing and promotions, although Manager shall at all times remain primarily responsible to the City for the performance of such services: (i) Conduct situational analyses and survey competition. (ii) Develop a marketing plan for the Facility's use and create an in- house advertising capability. (iii) Notify the City of events to be booked in the Facility after the Opening Date, which bookings shall be made subject to the terms of this Agreement and the booking schedule attached hereto, targeting national, Virginia, Hampton Roads and Virginia Beach markets. 7 (iv) Develop materials necessary to support the marketing plan, including, but not limited to, videos, virtual tours, direct mailers, Facility newsletters, and promotional and advertising items and/or gifts. (v) Develop, with input from community leaders, prime tenant(s), the Convention and Visitors Bureau of various cities in the Hampton Roads area, the City's Office of Special Events, the Department of Museums and Cultural Arts, and other appropriate internal City departments, and submit to the City pre-opening and operational sales, marketing, public relations, advertising, promotion, and event booking strategies and plans aimed at maximizing revenues from the Facility. (vi) Identify, in coordination with the City, potential advertisers, sponsors, equity partners and event producers. Develop, in consultation with the City, sponsorship values for Facility naming opportunities. (vii) Maintain ongoing community relations and exposure to industry via media releases, speakers bureau, paid advertising and direct mail. Develop membership and group sales databases. (viii) Plan, promote and execute, in conjunction with the City, Grand Opening events to maximize market impact and community relations, as outlined in the RFP Response. (ix) Maintain booking calendar, schedule and contract events. Schedule and promote special events to round out programming. (x) Engage a third party to develop a Facility website within 120 days of execution of this Agreement, in consultation with the City. The web site shall include information on the Virginia Beach Performing Arts Center Foundation, how to make donations to the Virginia Beach Performing Arts Center Foundation, and information on the Center Stage Capital Campaign. Manager shall also maintain and update (or engage a third party to maintain and update) the website. All costs related to the development and maintenance of the website shall be operating expenses of the Facility. (xi) Meet with the Virginia Beach Performing Arts Center Foundation, the Virginia Beach Performing Arts Center Advisory Committee, and resident status organizations, and accompany Foundation members on meetings with potential donors from time to time, as reasonably requested by the City, on dates mutually agreeable to the parties. (xii) Subject to applicable law, make available to the City marketing information for donor solicitations. (e) Pre-Opening Communications and Information Technology Service. The parties' agreement with respect to information technology services is set forth in Exhibit C, attached hereto. 8 (f) Manner of Performing Services. (i) In rendering consulting services, Manager shall work with representatives, consultants and agents of the City (including the City Contract Administrator), in accordance with the terms and conditions of this Agreement (ii) If requested by the City, Manager shall make appropriate personnel available to the City Contract Administrator on a reasonable basis, from time to time, to consult with and provide periodic reports regarding the performance of the consulting servIces. (iii) Manager shall supervise and direct all its personnel at the Facility that Manager deems necessary to perform the pre-opening services described herein, and conduct staff planning, retention and training programs with respect to such personnel as determined to be necessary by Manager. All employees hired by Manager to perform such services shall be employees of Manager, and not of the City. (iv) Manager shall maintain detailed, accurate and complete financial and other records of all its activities under this Agreement in accordance with generally accepted accounting principles, which records shall be made available to the City upon request (v) Manager shall submit to the City in a timely manner monthly financial and other reports and forecasts detailing Manager's activities in connection with the Facility. (vi) Manager shall cause such other acts and things to be done with respect to the Facility as determined by the mutual agreement of Manager and the City to be necessary for the management and operation of the Facility prior to the Opening Date. Section 2.3. Compliance With Laws. In connection with Manager's performance of its duties hereunder, Manager shall comply with all applicable statutes, ordinances, laws, rules, regulations and requirements under Federal, State, City and other local authorities having jurisdiction over the Facility and its use. Section 2.4. Pre-Opening Expense Budget Attached hereto as Exhibit D is the expense budget ("Expense Budget") prepared by Manager in connection with its pre-opening services. The Expense Budget details the projected employee costs, including salary, benefits (including 401(k) employer matching contributions), reasonable relocation costs, bonus and related costs, as well as travel costs, operating costs, marketing costs, and other expenses of Manager (including the Pre-Opening Services Fee as defined in Section 3.1) in connection with its obligations hereunder prior to the Opening Date. Such Expense Budget is deemed approved by the City by virtue of the City's execution of this Agreement; provided, however, Manager shall, subject to the prior approval of the City, update and amend the Expense Budget within sixty (60) days after the beginning of the Term, and provide the City with written justification for such amendments. 9 ARTICLE III COMPENSATION; FUNDING OF EXP/ENSES Section 3.1. Pre-Opening Services Fee: Funding of Expenses. (a) As consideration for the performance of Manager's pre-opening obligations hereunder, the City shall pay Manager, on a monthly basis, a pre-opening services fee ("Pre-Opening Services Fee") of six thousand dollars ($6,000) per month, during the period that begins on July 1, 2006, and terminates on the Opening Date. The Pre-Opening Services Fee shall be payable to Manager in advance, on the first (1 st) day of each month, and shall be prorated with respect to partial months. In addition, City shall pay to the Manager an amount equal to $15,000 and representing pre-opening services provided by Manager for the period of April 1, 2006, through and including June 30,2006. Such $15,000 shall be payable by the City within twenty (20) days of Manager's submission of an invoice detailing such pre-opening services during such period. (b) The City agrees to pay all expenses incurred by Manager in connection with the performance of its obligations under this Agreement prior to the Opening Date, in accordance with this Section 3.l(b). Upon execution hereof, Manager shall open a bank account ("Pre-Opening Expense Account"), in its own name and federal identification number, and the City shall transfer to such account an amount equal to the projected expenses of Manager for the first three (3) months of this Agreement (other than the Pre-Opening Services Fee), as set forth in the Expense Budget. On or before the first day of the fourth (4th) month hereunder, and again on the 1 st day of each subsequent three (3) month period thereafter, the City shall transfer to the Pre- Opening Expense Account an amount equal to the projected expenses for such three (3) month period (other than the Pre-Opening Services Fee), as set forth in the Expense Budget, less any non-committed funds in the Expense Account as of such date. Manager shall use the amounts in the Pre-Opening Services Account exclusively for the purpose of withdrawing funds to pay expenses hereunder. Manager shall provide to the City, within thirty (30) days following the end of each month during the Term, financial reports for the Facility including a balance sheet, aging report on accounts receivable, and statement of revenues and expenditures (budget to actual) for such month and year to date in accordance with generally accepted accounting principles. Manager shall also provide to the City a summary of bookings for each such month. Manager shall submit to City, or shall cause the applicable public depository utilized by Manager to submit to the City, on a monthly basis, copies of all bank statements concerning the Pre-Opening Expense Account. Any amounts remaining in the Pre-Opening Expense Account at the end of the Term shall be promptly transferred to the City. (c) The City's agreement to make payments under this Agreement is in consideration of the continuing pre-opening services rendered to the City by Manager in accordance with the terms hereof and is conditioned upon the continuing rendering of such servIces. Section 3.2. Delay in Opening Date. (a) The parties acknowledge that the Opening Date is anticipated to occur on October I, 2007. The parties, however, understand the possibility exists that the Opening Date 10 may be delayed due to delays in construction, a delay in obtaining a certificate of occupancy or temporary certificate of occupancy, lack of funding, necessary insurance requirements not being met in relation to completion of the Facility, or another reason outside of the control of the City. (b) If there is a delay or projected delay in the opening of the Facility both parties will endeavor to keep costs to a minimum and aggressively control staffing levels. A delay in the opening of the Facility is not a reason or condition for termination of this Agreement. ARTICLE IV TERM; TERMINATION Section 4.1. Term. The term of this Agreement shall begin on the Effective Date and, unless sooner terminated pursuant to the provisions of Section 4.2 below, shall expire at 12:01 a.m. on the Opening Date ("Term"). Section 4.2. Termination. (a) This Agreement may be terminated (i) by either party upon thirty (30) days written notice, if the other party fails to perform or comply with any of the material terms, covenants, agreements or conditions hereof, and such failure is not cured during such thirty (30) day notification period, or (ii) by the City immediately by written notice upon Manager being adjudged bankrupt or insolvent, or if any receiver or trustee of all or any part of the business property of Manager shall be appointed and shall not be discharged within ninety (90) days after appointment, or if Manager shall make an assignment of its property for the benefit of creditors or shall file a voluntary petition in bankruptcy or insolvency, or shall apply for bankruptcy under the bankruptcy or insolvency laws now in force or hereinafter enacted, Federal, State or otherwise, or if such petition shall be filed against Manager and shall not be dismissed within ninety (90) days after such filing. (b) In the event this Agreement expires or is terminated prior to the end of the Term, unless otherwise prohibited by the terms of this Agreement, the City shall promptly pay Manager all fees due Manager up to the date of termination or expiration, computed on a pro-rata basis (if applicable), and reimbursement of all expenses incurred by Manager up to the date of termination, in accordance with the terms hereof. (c) Upon termination or expiration of this Agreement for any reason, Manager shall (unless it has been engaged to manage the Facility following the Opening Date, in which case the terms of subsections (ii) and (iii) of this paragraph shall not apply): (i) promptly discontinue the performance of all services hereunder, (ii) assign to the City (which shall accept and assume, or cause another entity to accept and assume, responsibility to perform under) all contracts and agreements relating to the operation of the Facility properly entered into by the Manager in furtherance of its duties hereunder, except software licenses that are not assignable and (iii) deliver or otherwise make available to the City all data, electronic files, documents, procedures, reports, estimates, summaries, and other such information and materials as may have been accumulated by Manager in performing its obligations hereunder, whether completed or in process, unless such information constitutes proprietary or confidential information of Manager, 11 as determined by Manager in its reasonable discretion. With respect to any such use of proprietary or confidential information of Manager, Manager shall advise the City in advance of the general nature of such information and shall provide the City with an explanation of why it reasonably considers the information to be proprietary. Additionally, Manager agrees to notify the City prior to its use of such proprietary or confidential information (describing only the general nature of such information), and the City reserves the right to approve such use. (d) In the event prior to the Opening Date the City ceases construction of the Facility and permanently places the project on hold (as opposed to a delay in the construction or opening of the Facility, as described, for example, in Section 3.2(a) above) and the City certifies such fact to Manager in writing, this Agreement shall remain in effect, but all obligations of the parties hereunder shall be tolled until the time the City decides to recommence construction of the Facility, at which time all obligations of the parties hereunder shall recommence, subject to negotiation at such time of the remaining term of the Agreement to be in compliance with applicable IRS rules and regulations, which terms shall be determined by mutua! agreement of the parties. In the event the City has not decided to recommence construction of the Facility within two (2) years after its decision to cease construction of the Facility, this Agreement shall automatically terminate at the end of such two (2) year period, without payment of any amounts set forth in Section 4.2(b) or any other damages, other than (i) amounts due Manager up to the date of the written certification, which shall be paid promptly following Manager's receipt of such written certification, and (ii) reimbursement for reasonable costs actually incurred by Manager in connection with its withdrawal from the Facility, including, without limitation, reasonable relocation costs for employees who previously relocated to the Virginia Beach area in order to perform services under this Agreement (but only to the extent such relocation costs were not previously paid pursuant to Section 3.1(b)), and severance pay for senior management-level employees (i.e., the General Manager and any department heads), not to exceed four (4) months. (e) The remedies described in this Section 4.2 shall be in addition to any other remedies the parties may be entitled to, either by virtue of the terms of this Agreement, at law or in equity, as a result of a breach or termination of this Agreement. ARTICLE V PERSONNEL Section 5.1. Generally. (a) Except as provided in Section 5_1(b), all personnel operating at the Facility shall be engaged or hired by Manager (or an agent or contractor of Manager), and shall be employees, agents or independent contractors of Manager (or an Affiliate), and not of the City. As outlined in the RFP Response, Manager shall select the number, function, qualifications, and compensation, including salary and benefits, of its employees and shall control the terms and conditions of employment relating to such employees. Manager agrees to use reasonable and prudent judgment in the selection and supervision of such personnel, including the use of background and reference checks, as applicable. Except as provided in Sections 5.2 and 5.3, City shall have no right to supervise or direct the hiring or firing of any such personnel but, in the event that the City notifies Manager that it desires the removal from the Facility of any Manager employee and sets forth in such notice the specific reasons for such 12 request, Manager agrees to meet with representatives of the City to discuss the matter. Any decision to remove the individual shall be made by Manager, but in making such decision Manager agrees to act reasonably and take into account the views expressed by the City. (b) Any City personnel working out of the Facility including, without limitation, the City Contract Administrator, shall remain employees, agents, or independent contractors of the City in all respects, and not of Manager. Such employees shall not be involved in the day-to-day management or operation services for which Manager is being engaged to perform hereunder, but may oversee Manager's duties hereunder on behalf of the City. The City shall consider, at the request of Manager, the removal of any such personnel who fail to comply with Manager's rules and regulations. Section 5.2. General Manager. Personnel supplied by Manager will include an individual with managerial experience in similar facilities to serve as a full-time on-site general manalZ:er of the Facilitv ("General Manmrer"). HirinlZ: of the General Manager bv ManaQ"er ~ha1J ....... ~ ... ........"........ __ 0/ U - - -- - require the prior approval of the City, which approval shall not be unreasonably withheld or delayed. The General Manager will have general supervisory responsibility for Manager and will be responsible for day-to-day operations of the Facility, supervision of Manager's employees, and management and coordination of all activities associated with events taking place at the Facility. In the event the current General Manager ceases to be employed by Manager at the Facility for any reason, Manager may, without the prior approval of the City, appoint an interim general manager, provided that Manager shall use its best efforts to promptly appoint a permanent replacement (who shall be appointed with the City's prior approval, not to be unreasonably withheld or delayed). Section 5.3. Prohibition on Hiring. During the Term and for a period of one (1) year after the end of the Term, neither party shall, without the prior written consent of the other party (which consent shall not be unreasonably withheld or delayed), hire as an employee, consultant or other agent or contractor any senior management employee or agent of such other party with whom the City or Manager has had dealings with by virtue of the engagement of Manager hereunder. In the event of a breach of this Section 5.4 with respect to any such employee or agent of the parties, the breaching party shall pay the non-breaching party as liquidated damages an amount equal to one year's salary and benefits for such employee or agent. The parties agree that such amount is an estimate of the actual damages the non-breaching party will suffer as a result of a breach of this Section 5.4, and shall be deemed to constitute liquidated damages and not a penalty of any kind. For purposes of this paragraph, "senior management employees" of (1) Manager shall mean the General Manager and any department head employed by Manager at the Facility and (2) the City shall mean the Contract Administrator, the Project Director and the Capital Campaign Coordinator. ARTICLE VI AGREEMENT MONITORING AND GENERAL MANAGER Section 6.1. City Contract Administrator. The City shall monitor Manager's compliance with the terms of this Agreement through the "City Contract Administrator," who shall be the City Manager or his/her designee, and at present is Emily Spruill (subject to change by written notice to Manager). Any and all references in this Agreement requiring City 13 participation or approval shall mean the partIcIpation or approval of the City Contract Administrator. The City Contract Administrator shall be the lia.ison between Manager and the City on all matters relating to this Agreement, shall ensure that any information supplied by Manager is properly distributed to the appropriate City departments, and shall be responsible for the monitoring and assessment of contract compliance by Manager. Section 6.2. Manager Representative. Manager shall monitor the parties' compliance with the terms of this Agreement through the "Manager Designee". Manager Designee at present is Doug Higgons (subject to change by written notice to the City). Such Manager Designee shall be the day-to-day liaison between the City and Manager on all matters relating to this Agreement. ARTICLE VII USER/RENTAL AGREEMENTS Section 7.1. Manager shall have the authority to execute user/rental agreements for the use of the Facility in materially the form approved by the Contract Administrator and the City Attorney as the standard Facility occupancy agreement (the "Standard Facility Agreement"). Concurrently with its approval of the model Standard Facility Agreement, the Contract Administrator shall be entitled to notify Manager of those material sections or provisions found therein that cannot be modified without the prior consent of the Contract Administrator (collectively, the "Standard Provisions"), and any proposed Standard Facility Agreement that deviates from the Standard Provisions must be approved in advance by the Contract Administrator. Manager acknowledges that the Contract Administrator may consult with the City Attorney or other applicable City employees for the purpose of determining whether to approve any such changes to the Standard Provisions. Provided that none of the Standard Provisions are amended or modified, Manager may make changes in the Standard Facility Agreement on a case-by-case basis as it deems reasonable. The Contract Administrator, upon request, shall be provided with copies of all Standard Facility Agreements. Manager shall charge such rates for use of the Facility as are established by Manager in accordance with the Operations Manual, and any deviation from such established rates shall be approved in advance by the Contract Administrator. ARTICLE VIII INDEMNIFICATION Section 8.1. Indemnification by Manager. Manager agrees to indemnify and hold harmless the City and its agents, servants and employees against any claims, causes of action, costs, expenses (including reasonable attorneys' fees), liabilities, or damages (collectively, "Losses") suffered by such parties, arising out of or in connection with any (a) negligent act or omission, or intentional misconduct, on the part of Manager or any of its employees or agents in the performance of its obligations under this Agreement, (b) breach by Manager of any of its representations, covenants or agreements made herein, or ( c) claim, demand or cause of action of whatever kind or nature arising out of any conduct or misconduct of Manager not covered by ( a) or (b) of this Section 8.1 and for which the City, its agents, servants or employees are alleged to be liable. Notwithstanding the foregoing, Manager shall have no duty to indemnify the City under this Section 8.1 for Losses that arise out of or are connected with (x) a negligent or 14 intentional act on the part of the City or its agents, servants or employees, (y) a structural or building defect in the Facility or (z) any act or omission taken by Manager (i) following mutual agreement by the City and Manager to any such act or omission or (ii) in those instances in which (A) first, Manager has delivered a prior written objection to the City's directive that Manager act or refrain from acting and (B) second, Manager has received written direction from the City to proceed following Manager's delivery of its written objection. The provisions of this Section 8.1 shall survive the expiration or earlier termination of this Agreement for a period of five (5) years. Section 8.2. Limitation on Manager's Liability. Manager shall have no liability, and shall not be responsible for, claims (or associated costs) under third party contracts entered into by Manager pursuant to this Agreement if such claims arise out of a failure by the City to fund expenses under such contracts for which the City has approved funding pursuant to the provisions of Sections 2.4 and 3.1. ARTICLE IX INSURANCE; BONDS Section 9.1. Types and Amount of Coverage. Manager agrees to obtain insurance coverage in the manner and amounts as set forth in Exhibit E, attached hereto, and shall provide to the City promptly following the Effective Date a certificate or certificates of insurance evidencing such coverage. Manager shall maintain such referenced insurance coverage at all times during the Term, and will not make any modification or change from these specifications without the prior approval of the City. Each insurance policy shall include a requirement that the insurer provide Manager and the City at least thirty (30) days written notice of cancellation or change in the terms and provisions of the applicable policy. The cost of all such insurance shall be an operating expense of the Facility, reimbursable to Manager by the City. Section 9.2. Rating; Additional Insureds. All insurance policies shall be rated no less than A VIII in the most recent "Bests" insurance guide, shall be issued by insurance companies licensed in the Commonwealth of Virginia or as otherwise agreed by the parties, and shall be in such form and contain such provisions as are generally considered standard for the type of insurance involved. The commercial general liability policy, automobile liability insurance policy and umbrella or excess liability policy to be obtained by Manager hereunder shall name City as an additional insured. The workers compensation policy to be obtained by Manager hereunder shall contain a waiver of all rights of subrogation against the City. Manager shall require that all users of the Facility, including without limitation licensees, third party ushers and security personnel, and concessionaires, provide to Manager certificates of insurance evidencing insurance appropriate for the types of activities such user is engaged in. Upon request, Manager shall provide copies of such certificates to the City. If Manager subcontracts any of its obligations under this Agreement, Manager shall either: (a) cover all subcontractors under its policies of insurance, or (b) require each subcontractor not so covered to secure insurance that will protect against applicable hazards or risks of loss as and in the minimum amounts designated herein, and name Manager and the City as additional insureds. 15 ARTICLE X FACILITY MANAGEMENT FOLLOWING OJ?ENING DATE Section 10.1. Agreement to Engage Manager to Operate the Facility. The City acknowledges that it has selected Manager to manage and operate the Facility following the Opening Date, on the material terms and conditions contained in the RFP and the RFP Response. The parties shall, promptly following execution of this Agreement, negotiate in good faith a written management agreement reflecting such terms and conditions from the RFP and the RFP Response, and any other terms and conditions the parties mutually agree to include in such written agreement. ARTICLE XI COMPLIANCE WITH EQUAL OPPORTUNITY LAWS, REGULA nONS, RULES AND OTHER LA WS Section 11.1. During the performance of this Agreement, Manager agrees that it: (a) will not discriminate against any employee or applicant for employment because of race, religion, color, sex, disability, national origin, ancestry, physical handicap, age, or any other basis prohibited by the laws of the Commonwealth of Virginia relating to discrimination in employment, except where there is a bona fide occupational qualification reasonably necessary to the normal operation of Manager. Manager agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause. (b) will state in all solicitations or advertisements for employees placed by or on behalf of Manager, that it is an equal opportunity employer. Notices, advertisements and solicitations placed in accordance with Federal law, rule or regulation shall be deemed sufficient for the purpose of meeting the requirements hereof. (c) that it will provide a "drug-free workplace" for its employees and will state in all solicitations or advertisements for employees placed by or on behalf of Manager that it maintains a "drug-free workplace" being defined as a site for the performance of work where the employees are prohibited from engaging in the unlawful manufacture, sale, distribution, dispensation, possession or use of any controlled substance or marijuana during the performance of the contract. (d) 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 the contractor's or subcontractor's workplace and specifying the actions that will be taken against employees for violations of such prohibition. Section 11.2. Manager shall include the prOVISIOns of Section 11.1 hereof in every subcontract or purchase order over $10,000, so that the provisions will be binding upon each such subcontractor or vendor. 16 Section 11.3. Manager shall be required to provide the City with its Federal employer identification number. ARTICLE XII PROHIBITION AGAINST CONTINGENT FEES Section 12.1. Manager warrants that it has not employed or retained any company or person, other than V AF or a bona fide employee working for Manager, to solicit or secure this Agreement, and that it has not paid or agreed to pay any company or person, other than V AF or a bona fide employee, any fee, commission, percentage, brokerage fee, gifts, or any other consideration (collectively, a "Contingent Fee") contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, the City may terminate this Agreement without liability or may, in its discretion, otherwise recover the full amount of such Contingent Fee. Section 12.2. Manager warrants that it will not accept any Contingent Fee from any third party for the performance of any work under this Agreement except from artists, promoters or their respective representatives in accordance with industry custom and practice. ARTICLE XIII PERMITS, LICENSES, TAXES AND LIENS; ADA COMPLIANCE Section 13.1. Permits and Licenses. Manager shall use reasonable efforts to procure any permits and licenses required for the business to be conducted by it hereunder. The City shall cooperate with Manager in applying for such permits and licenses. Manager shall deliver copies of all such permits and licenses to the City Contract Administrator. Manager shall pay promptly all taxes, excises, license fees and permit fees of whatever nature arising from its operation, promotion and management of the Facility. Manager shall prevent mechanic's or materialman's or any other lien from becoming attached to the premises or improvements at the Facility, or any part or parcel thereof, by reason of any work or labor performed or materials furnished by any mechanic or materialman engaged by Manager. ARTICLE XIV INDEPENDENT CONTRACTOR Section 14.1. Independent Contractor. Manager is an independent contractor and as such is not an employee of the City. Manager is responsible for any and all Federal, State and local taxes required by law and resulting from the compensation paid to Manager hereunder. Such taxes will not be in addition to the compensation received by Manager hereunder but rather will be the sole obligation of Manager, which shall indemnify, defend and hold the City harmless from any and all such taxes. Nothing herein contained is intended or shall be construed in any way to create or establish the relationship of partners or a joint venture between the City and Manager. None of the officers, agents or employees of Manager shall be or be deemed to be employees of the City for any purpose whatsoever. 17 ARTICLE XV COMPLIANCE WITH ENVIRONMENTAL LAWS Section 15. L Manager shall not use or permit the Facility or any part thereof to be used to generate, manufacture, refine, treat, store, handle, transport or dispose of, transfer, produce or process Hazardous Materials or Petroleum Products, except, and only to the extent, if necessary to maintain the Facility and then, only in compliance with applicable Environmental Laws, nor shall it knowingly permit, as a result of any intentional or unintentional act or omission on its part or by any tenant, subtenant, licensee, guest, invitee, contractor, employee or agent, the storage, transportation, disposal or use of Hazardous Materials or Petroleum Products on, from or beneath the Facility excluding, however, those Hazardous Materials and Petroleum Products in those amounts ordinarily found in the inventory of or used in the operation of facilities of the type of the Facility, the use, storage, treatment, transportation and disposal of which shall be in compliance with applicable Environmental Laws. Upon knowledge of the occurrence of any release or tpseatened release of Hazardous ~,,1aterials or Petroleum Products, l'v1anager shall promptly notify the City. Section 15.2. Manager shall comply with, and take reasonable actions to ensure that its agents, licensees, employees, and contractors comply with, applicable Environmental Laws so as to keep the Facility free and clear of any violation of such Environmental Laws. Upon receipt of notice from any person with regard to the release of Hazardous Materials or Petroleum Products on, from or beneath the Facility, Manager shall give prompt written notice thereof to the City. Section 15.3. All expenses incurred by Manager in ensuring compliance with the terms and conditions set forth in this Article XV shall be considered operating expenses of the Facility, reimbursable to Manager by the City, except to the extent that such expenses (including, without limitation, expenses incurred to clean up and remove any Hazardous Materials or Petroleum Products from the Facility) result from Manager's failure to comply, or to ensure the compliance by others, with such terms and conditions. ARTICLE XVI NAME AND LOGOS Section 16. L Use of City and Facility Names and Logos. Manager and its Affiliates shall be permitted to use the name and logo of the Facility and the City (but not the City Seal) for the purpose of promoting the Facility, subject to the approval of the City Contract Administrator. Manager agrees that it shall not license or otherwise grant use of the City and Facility names and logos (i) to any third party vendors, suppliers or service providers of Manager or the Facility, or (ii) to any third party to be used on any novelties or merchandise. ARTICLE XVII MINORITY PARTICIPATION REQUIREMENTS Section 17. L Manager shall comply with the requirements of Virginia Beach City Code S2-224.l through g2-224.8 pertaining to minority participation in City contracting. Section 17.2. By executing this Agreement, Manager accepts the right of the City to appoint a representative to monitor Manager's compliance with the commitments and 18 requirements of this Article. The City or its designee shall have the right to review all relevant documents of Manager relating to the participation of Minority-owned Businesses and W oman- owned Businesses on an ongoing basis. Section 17.3. The City reserves the right to evaluate Manager's performance with regard to the commitments and requirements of this Article on an annual basis. ARTICLE XVIII TAX EXEMPTION COVENANT - FINANCING DOCUMENTS Section 18.1. Tax-Exempt Bonds. Manager acknowledges that the City is financing the Facility through the issuance of tax-exempt bonds ("Tax-Exempt Bonds"), the interest on which is excludable from gross income for Federal income tax purposes under Section 103(a) and related provisions of the Internal Revenue Code of 1986, as amended (the "Code"), and applicable rules and regulations. Manager agrees that, in addition to other contracts requiring the approval of the City, the Manager will not execute any of the following described contracts unless it has received the City's written approval: (i) Any contract relating to the Facility that grants a leasehold interest, term for years, or other real estate interest in the Facility, or grants a right to use the Facility on a basis different from that of the general public, unless such use satisfies a short-term use exception as described in Section I.l41-3( d)(3) of the Treasury Regulations. (ii) Any contract for the use of the Facility for shows, programs, conventions and other events (A) where the term of such use exceeds fifty (50) days in the aggregate, including all renewal options or (B) where the compensation for such use is on a basis other than at fair market value (as such term is used for Federal income tax purposes). (iii) Any contract for the use of the Facility for shows, programs, conventions and other events where the right of the user to the Facility is that of a full legal possessory interest in the Facility, rather than that of a transient occupant, unless such contract provides for use on a fixed fee basis (excluding the sale of merchandise or concessions in respect thereto which may be on a percentage of merchandise or concession revenues). Section 18.2. Financing Documents. The City shall provide Manager, upon execution of this Agreement, with a copy of the relevant provisions of the Financing Documents that impose limitations, restrictions or conditions upon the use and operation of the Facility. Manager and the City each agree to operate and use the Facility in accordance with such proVISIOns. ARTICLE XIX MISCELLANEOUS Section 19.1. Force Maieure. Except as otherwise provided herein, neither party shall be obligated to perform, and neither party shall be deemed to be in default of its performance, if 19 prevented by: (a) fire, earthquake, hurricane, wind, flood, act of God, riot, terrorism, or civil commotion occurring at the Facility, or (b) by law, ordinance, lillIe, regulation, or order of any public or military authority stemming from the existence of economic or energy controls, hostilities, war or govemmentallaw and regulation, or ( c) labor dispute which results in a strike or work stoppage affecting the Facility or services described in this Agreement. Section 19.2. Assignment. The City is entering into this Agreement in recognition of and in reliance on the expertise, reliability and competence of Manager and its management in matters pertinent thereto. The performance of the obligations imposed upon Manager under this Agreement will not be assignable by it to any other party unless the City, within its sole discretion, consents to such assignment in writing. Any purported assignment in contravention of this Section shall be void. Furthermore, the services to be provided by Manager may not be subcontracted without the City's prior written consent, which may be withheld in its sole discretion, except that the City acknowledges and agrees that V AF will be performing certain services set forth hereunder. Notwithstanding the foregoing, nothing herein shall be construed to prohibit Manager from engaging in transactions or reorganizations involving Affiliates which are intended to accomplish internal corporate purposes and which do not materially alter or affect the manner in which services are provided by Manager hereunder. Section 19.3. Notices. All notices required or permitted to be given pursuant to this Agreement shall be in writing and delivered personally or sent by registered or certified mail, return receipt requested, or by generally recognized, prepaid, overnight air courier services, to the address and individual set forth below. All such notices to either party shall be deemed to have been provided when delivered, if delivered personally, three (3) days after mailed, if sent by registered or certified mail, or the next business day, if sent by generally recognized, prepaid, overnight air courier services. If to the City: Emily Spruill City of Virginia Beach 717 General Booth Blvd. Virginia Beach, Virginia 23451 If to Manager: Global Spectrum, L.P. c/o Michel F. Sauers 780 94th Ave. North, Suite 107 St. Petersburg, Florida 33702 With a copy to: City of Virginia Beach Office of the City Attorney Municipal Center-Building 1 2401 Courthouse Drive Virginia Beach, Virginia 23456-9004 With a copy to: Philip I. Weinberg, Esquire Comcast Spectacor, L.P. 3601 South Broad Street Philadelphia, Pennsylvania 19148-5290 The designation of the individuals to be so notified and the addresses of such parties set forth above may be changed from time to time by written notice to the other party in the manner set forth above. Section 19.4. Severability. If a court of competent jurisdiction or an arbitrator determines that any term of this Agreement is invalid or unenforceable to any extent under 20 applicable law, the remainder of this Agreement (and the application of this Agreement to other circumstances) shall not be affected thereby, and each remaining term shall be valid and enforceable to the fullest extent permitted by law. Section 19.5. Governing Law. The Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the Commonwealth of Virginia, without regard to its conflict of laws principles. Section 19.6. Amendments. Neither this Agreement nor any of its terms may be changed or modified, waived, or terminated (unless as otherwise provided hereunder) except by an instrument in writing signed by an authorized representative of the party against whom the enforcement of the change, waiver, or termination is sought. Section 19.7. Waiver; Remedies. No failure or delay by a party hereto to insist on the strict performance of any term of this Agreement, or to exercise any right or remedy consequent to a breach thereof, shall constitute a waiver of any breach or any subsequent breach of such term. No waiver of any breach hereunder shall affect or alter the remaining terms of this Agreement, but each and every term of this Agreement shall continue in full force and effect with respect to any other then existing or subsequent breach thereof. The remedies provided in this Agreement are cumulative and not exclusive of the remedies provided by law or in equity. Section 19.8. Entire Agreement. This Agreement, including the Operations Manual, the exhibits and the schedules attached hereto and forming a part hereof, sets forth all the covenants, promises, agreements, conditions and understandings between the Manager and the City concerning the subject matter of the Agreement, and there are no covenants, promises, agreements, conditions or understandings, either oral or written, between them other than as set forth herein. In case of conflict, this Agreement will take precedence over the RFP or the RFP Response. Section 19.9. Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same document. 21 IN WITNESS WHEREOF, each party hereto has caused this Agreement to be executed on behalf of such party by an authorized representative as of the date first set forth above. CITY OF VIRGINIA BEACH By: City of Virginia Beach GLOBAL SPECTRUM, L.P. By: Global Spectrum, Inc., its general partner By: Name: James Spore Title: City Manager By: Name: Sanford Lipstein Title: Vice President ATTEST: ATTEST: Name Name Approved as to Content: Department of Museums and Cultural Arts Approved as to Legal Sufficiency: Office of the City Attorney 22 CORPORATE ACKNOWLEDGMENT COMMONWEAL TH OF PENNSYLVANIA ) )ss. CITY/COUNTY OF PHILADELPHIA ) IN WITNESS WHEREOF, on this _ day of July, 2006, before me, the undersigned, a Notary Public in and for the City/County and State aforesaid, came Sanford Lipstein, Vice President of Global Spectrum, Inc., a corporation duly organized, incorporated and existing under and by virtue of the laws of the State of Delaware; who is personally known to me to be such officer and who is personally known to me to be the same person who executed as such officer of the corporation the within instrument on behalf and as general partner of Global Spectrum, L.P., and such person duly acknowledged the execution of the same to be the act and deed of said corporation. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal the day and year last above written. Notary Public My Appointment Expires: 23 EXHIBIT A BOOKING POLICY Booking Guidelines Purpose of Booking Policy: To obtain maximum utilization of the Sandler Center for the Performing Arts ("Facility") and to provide fair and equitable availability to a broad spectrum of cultural and performing arts producers. First Priority: 1. In-house productions for maximum revenue potential. 2. Organizations with Resident Company Status. * 3. The Facility's "Great Performance Series" or "Celebrity Series." Organizations which fall within the "First Priority" category will each be assigned specific periods of time in the Facility during which they have right of first refusal for dates. These times will be established at a collective scheduling meeting facilitated by the General Manager of the Facility, which will take place no later than 18 months prior to the start of each new season (i.e. March 2006 prior to September 2007 season opening). There is no hierarchy of priority within these events or organizations. All dates for the season will be available to the Resident Companies at this time with the exception of up to ten (10) weeks of programming for other 151 priority events scheduled by the Facility's management. All Resident Companies, as well as the City of Virginia Beach's Contract Administrator. will be invited to this meeting. Groups must confirm their dates with a written contract twelve (12) months in advance in order to guarantee the Facility's availability for their events. Once the l2-month advance notice period has passed, dates that had been held but not confirmed for Resident Companies become available for second and third priority events (with Resident Companies still offered right of first refusal). Second Priority: Established regional arts organizations and former tenants of the Pavilion Theatre, who do not fall under Resident Company Status. Third Priority: Community organizations and events. 24 Facility and date scheduling commitments for second and third priority events can be confirmed no more than twelve (12) months in advance in order to insure availability for first priority events. *Resident Company Status (by application) Organizations must meet all five (5) of the following criteria to have "Resident" status: 1. Be an incorporated, non-profit 50l(c)(3) organization. 2. The primary activity/mission must be to produce or present performing arts events that are open to the public. 3. Plans to contract for a volume of no less than $5,000 worth of time in the facility for one season; or Plans to produce or present a season of three (3) or more different productions with a total of five (5) or more public performances in one season. 4. Markets a season ticket. (Season or series ticket is defined as ticket or tickets for admittance to a predetermined group of events, usually sold at a savings to the patron and for one seat location.) 5. Current on payment of invoices to the Facility and/or its subcontractors. The following are grandfathered in as Resident Companies of the Facility: City of Virginia Beach, City of Virginia Beach Public Schools, Hurrah Players, Virginia Arts Festival, Virginia Beach Chorale, Virginia Beach Forum, Virginia Beach Symphony Orchestra, Virginia Musical Theatre, and Virginia Symphony. 12/29105 25 EXHIBIT A-l BOOKING - CATEGORIES OF EVENTS REQUIRIlNG CITY APPROVAL Part of the consideration inherent to the City entering into this Agreement is the fact that the Facility is a significant public community asset. It is imperative that programming at the Facility upholds community standards and is balanced in substantially the manner hereinafter provided. It is the stated goal of the parties hereto to each use their reasonable efforts to cause the Facility's programming to be appropriate, decent and balanced so as to ensure a reasonable blend of cultural experiences, recognizing and accepting the fact that some (e.g., so called, "high arts") may not be as profitable as others (e.g., "contemporary pop music"). For purposes of this Agreement, "balance" shall mean a reasonable assortment, in Manager's sole, but good faith judgment, of varied tastes of the general population including, without limitation, classical, folk, jazz, soul, blues, rock and roll, popular, country music, family shows and comedy. All events that are clearly inappropriate for children shall be posted as such in advance of ticket sales. I. Event categories requiring prior City approval: 1. Any co-promoted or in-house promoted events that place the City at financial risk. 2. Any event which, in the professional opinion of Manager, possesses a clear security risk to the City and/or its property, personnel and/or immediate neighbors, as well as the Facility's ticket buyers. 3. Events whereby Manager is serving as the co-promoter or independently as the third party promoter. Given the nature of the industry, and the highly competitive event booking process, the City agrees to provide Manager with its approval or rejection within two (2) business days of any request for approval by Manager. II. For clarification purposes, the parties agree that Manager may book events in the following event categories without first obtaining the approval of the City (the procedures for booking such events shall be as set forth in the Facility's booking policy, a copy of which is attached hereto as Exhibit A): 1. Performing Arts and Theatrical Events 2. Community Events 3. Family Shows 4. Concerts 5. Meetings and Seminars 6. Banquets and other food functions. 7. Any of the categories in I above that Manager agrees to co-promote by risking guaranteed rent only (percentage rent will still be charged). 26 EXHIBIT B $0 - $1,000 . No competition is required to purchase goods or services under $1,000. Global Spectrum is encouraged to seek out minority or woman owned businesses for these transactions. $1,001 - . Global Spectrum solicits either telephone or written quotations, $30,000 depending on dollar volume and amount of competition. When practicable, Global Spectrum solicits minimum of three (3) written quotations, depending on dollar volume and amount of competition. Of the trliee (3) quotations solicited, the Global Spectrum will solicit at least one bid from a minority or woman owned business if available. $30,001 - . Global Spectrum solicits written informal quotations. When $50,000 practicable, Global Spectrum solicits written informal quotations to a minimum of four (4) bidders). Of the four quotations solicited, Global Spectrum will solicit at least two bids from minority or woman owned businesses if available. $0 - $1,000 . Maintenance contract and repairs for office equipment and shop equipment under $1,000 do not require competition. . Subscriptions for publications under $1,000 do not require competition. ::: $50,000 . Global Spectrum solicits competitive formal bids. Global Spectrum will include at least three minority or woman owned businesses that are included on the list maintained by the City Purchasing Division. This bidder listing will be made available for use by Global Spectrum. None . Global Spectrum procures the goods/services from the sole source vendor and documents the basis for sole source. 27 None . Global Spectrum shall secure, by open market procedure, at lowest obtainable price, any supplies or contractual services, regardless of the amount. · Global Spectrum shall maintain a report documenting the circumstances of the emergency. *Notwithstanding the foregoing, (i) Global Spectrum shall not be required to solicit quotations or h;r1c fAr n1prlt!:a 1"\nrro},gcPQ {p n hlH1C n-f t-i't..t"u3,JC'n~,.....p 1n npnlQ't"\o:l"t"'\ar .....'.),,.1;,, -i.....ta........a+ +alo.''U~C'''I~r'lo_ \ .......... IV..'........., ....'-'. ............,............. y_...""'.....u..u.J_u \......6. ""U-J U '-'.L ~....l......._, 1oJ.t'"""''''' .......1 ..1..1._ yy .:Jt'u.yV.l., .lU.U.lV, .l..l.ll.""'..l.l.l\";L, L'-'J.\,.; v .l.:;).1V.1J.j, V.1 purchases of artist or performer services, and (ii) Global Spectrum is entitled to use criteria such as experience, quality of services, references, among others, in awarding contracts and Global Spectrum shall not be obligated to rely on price as the sole determining factor in awarding bids to, or otherwise selecting, any service providers. 28 EXHIBIT C COMMUNICA TIONS AND INFORMATION TECHNOLOGY SERVICE The parties agree to the following terms with respect to pre-opening communications and information technology services at the Facility: (i) Manager shall, upon consultation with the City, prepare a design for the network infrastructure necessary to support data service at the Facility. Such network infrastructure shall include, but shall not be limited to, wiring, cabling, switches, and routers. Manager may hire a third party contractor to prepare the design for the network infrastructure. Expenses incurred by Manager in preparing the design and/or engaging the third-party contractor shall be included in Manager's Expense Budget and shall be funded by the City. The design shall comply with the City's Network Standards. (ii) The City shall review and approve all designs prior to installation. (iii) The City shall be responsible for installation of the cabling for all data networks at the Facility. (iv) The City shall be responsible for all components of the City's trusted network at the Facility ("Trusted Network"). The City shall maintain ownership of all components of its Trusted Network. (v) The City shall operate and maintain all components of its Trusted Network, and shall provide Internet access, standard City desktop productivity software, desktop computers, and printers exclusively to City employees located at the Facility. (vi) Manager shall not be responsible for any expenses incurred by the City in operating or maintaining any of the components listed in item (v) above. Such expenses shall be paid by the City through its Department of Museums and Cultural Arts. (vii) Manager shall install (excluding network cabling), operate, and maintain all components of its network infrastructure located at the Facility ("Manager's Network"). Manager shall sustain all components of Manager's Network through maintenance agreements with the manufacturers and version upgrades. Manager shall sustain all components of Manager's Network to the current product version. All expenses associated therewith shall be included in Manager's Expense Budget and funded by the City. Manager shall obtain prior approval from the City for any changes or modifications to Manager's Network or to the Facility's physical plant. (viii) In the event that Manager desires to provide Internet access to its employees, agents, and subcontractors located at the Facility ("Manager's Employees"), or to 29 other third parties utilizing the Facility for Facility-related business ("Third Parties"), Manager shall be responsible for providing Internet access for Manager's Employees and/or Third Parties, the costs of which shall be included in Manager's Expense Budget and funded by the City. Manager, Manager's Employees and Third Parties shall not have access to the City's Trusted Network. (ix) In the event that Manager desires to provide Internet access to the public at the Facility, Manager shall be responsible for providing such Internet access to the public. The public shall not have access to the City's Trusted Network. (x) All expense incurred by Manager, Manager's Employees, and Third Parties for Internet access at the Facility shall be included in Manager's Expense Budget and funded by the City. (xi) Manager shall purchase, install, operate and maintain furniture, fixtures. and equipment ("FF &E") for the Facility, to include network components (excluding network cabling), and desktop computer hardware and software. The purchase of such FF&E shall be subject to the approval of the City. The cost of the FF&E shall be included in Manager's Expense Budget and funded by the City. (xii) Manager shall purchase, operate and maintain (or engage a third party to maintain) specific business software applications, application servers, printers, and any other ancillary hardware and software necessary for the performance of Manager's duties under this Agreement. Such business software applications shall reside on the Facility's computer hardware and Manager's Network, not on the City's computer hardware or Trusted Network. All the costs associated with the foregoing shall be included in the Manager's Expense Budget and funded by the City. (xiii) Manager shall be responsible for licensing all software installed at the Facility on Manager's computer hardware and in Manager's Network. For the purposes of software licensing and adherence to intellectual property laws, the Facility is not considered part of the City's information technology enterprise or the City's Microsoft Enterprise Agreement. Accordingly, Manager shall not have access to any of the City's information technology licenses. Manager shall maintain ownership of all business software applications and associated hardware. All the costs associated with the foregoing shall be included in the Manager's Expense Budget and funded by the City. (xiv) Manager shall provide to the City, upon request, access to Manager's non- proprietary data relating to the Facility. Such data shall include, without limitation, information relating to ticketing, marketing, sales, accounting, utilities consumption, and customer or exhibition lists or similar materials for the use of the Facility. Manager shall provide data to the City within fifteen (15) days of receipt of such request. Manager shall provide data in a non-proprietary, open standard electronic format that is readable by the City. 30 (xv) The City shall install and maintain a telephone system at the Facility. The telephone system shall be utilized by City employees, Manager and Manager's Employees, and Third Parties. The City shall be responsible for the installation of the cabling for the telephone system. The City shall own all components of the telephone system. (xvi) The City shall provide telephone service to the Facility and shall issue standard City telephone equipment for use at the Facility. (xvii) Manager, Manager's Employees, and Third Parties shall utilize the City's telephone system at the Facility only for conducing Facility-related business. (xviii) A single telephone bill shall be submitted monthly by the City's Department of Communications and Information Technology to the City's Department of Museums and Cultural Arts for payment. The bills shall include all expense incurred by the City, Manager, Manager's Employees, and Third Parties for telephone service at the Facility. Manager shall not be responsible for payment of expenses related to telephone service at the Facility. 31 EXHIBIT D EXPENSE BUDGET SANDLER CENTER FOR THE PERFORMING ARTS - CITY OF VIRGINIA BEACH Global Spectrum / Virginia Arts Festival Pre-Opening Budget Totals * Revised July 28, 2006 Apr - Jun Jul-Jun Jul - Aug TOTAL 3 12 2 -- months months months FY06 FY07 FY08 FT Staff Costs (including benefits) $0 $148,113 $69,120 $217,233 Support Staff $0 $37,500 $9,167 $46,667 PT Staff Costs $0 $0 $21,600 $21,600 TOTAL STAFFING $0 $185,613 $99,887 $285,499 General & Administrative Postage/Delivery $0 $4,500 $1,000 $5,500 Office Rental Space (if needed) - provided by City $0 $0 $0 $0 Office Supplies $0 $5,000 $2,500 $7,500 Advertising & Public Relations $0 $43,300 $12,300 $55,600 Information Technology / Telecommunications $0 $20,000 $5,000 $25,000 Travel & Related Expenses $0 $27,000 $15,000 $42,000 Copies/Printing/Brochures, Collateral Material $0 $12,500 $16,000 $28,500 Office Equipment Rental $0 $9,000 $2,000 $11,000 Dues, Subscriptions, Memberships $0 $1,000 $2,500 $3,500 Relocation Expenses $0 $26,000 $0 $26,000 Management Fees $15,000 $72,000 $12,000 $99,000 Insurance $0 $7,500 $7,500 $15,000 Contingency $0 $10,000 $20,000 $30,000 TOTAL G&A $15,000 $237,800 $95,800 $348,600 TOTAL PRE-OPENING EXPENSES $15,000 $423,413 $195,687 $634,099 0 * Does not include Grand Opening Expenses 0 32 EXHIBIT E INSURANCE At all times during this Agreement, Manager shall: (a) maintain commercial general liability insurance, including products and completed operations, bodily injury and property damage liability, contractual liability, independent contractors liability and personal and advertising injury liability against claims occurring on, in, or about the Facility, or otherwise arising under this Agreement; (b) maintain umbrella or excess liability insurance; (c) maintain commercial automobile liability insurance, including coverage for the operation of owned, leased, hired and non-owned vehicles; (d) maintain appropriate workers compensation and employer's liability insurance as shall be required by and be in conformance with the laws of the Commonwealth of Virginia; and (e) coverage. maintain professional liability insurance including employment practices liability Such liability coverage shall be maintained in the following minimum amounts throughout the Term: A. COMMERCIAL GENERAL LIABILITY $1,000,000 per occurrence $1,000,000 personal and advertising injury $2,000,000 general aggregate $1,000,000 products-completed operations aggregate B. AUTOMOBILE LIABILITY $1,000,000 per accident (PI and PD combined single limit) $1,000,000 uninsured/underinsured motorist C. UMBRELLA OR EXCESS LIABILITY $5,000,000 per occurrence and aggregate 33 D. WORKERS COMPENSATION: STATUTORY E. EMPLOYER'S LIABILITY $100,000 each accident-bodily injury by accident $500,000 policy limit-bodily injury by disease $100,000 each employee-bodily injury by disease F. PROFESSIONAL LIABILITY/ERRORS & OMISSIONS (Claims Made) $1,000,000 each occurrence/aggregate Policy is to include: Entity Coverage Employment Practices Liability G. CRIME COVERAGE Coverage on all Manager employees Limit: $1,000,000 34 - 26- Item V, J. 2. RESOLUTIONS/ORDINANCES ITEM #55487 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED: Ordinance to TRANSFER $765,608 from the Department of Museums and Cultural Arts FY2006-07 Operating Budget to the Non- Departmental FY 2006-07 Operating Budget to better provide for the management and fund raising activities associated with the Sandler Center for the Performing Arts (SCP A) and other cultural activities. Voting: 11-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None August 8, 2006 ~~"c" ~..!'~I"-. ..L'.n, /9''1''--; ... \'t>', (,),.:. . .2:) (O~ :s;, ~. ,.",- ;.> ,\--- - ~1j -=',". ...........0:. ~~~~~ ""-"^" CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Transfer $765,608 from the Department of Museums FY 2006- 07 Operating Budget to the Non-Departmental FY 2006-07 Operating Budget. MEETING DATE: August 8,2006 . Background: Since the formation of the Department of Museums and Cultural Arts, City Council has created and funded the Sandler Center for the Performing Arts, a major cultural arts initiative. It is necessary to transfer certain budget units from the Department of Museums and Cultural Arts to a separate non- departmental section of the operating budget to better provide for the management and fund raising activities associated with the Sandler Center for the Performing Arts and other cultural activities. . Considerations: The following budget units will be transferred from the Department of Museums and Cultural Arts to the Non-Departmental Operating Budget: Budget Unit FY 2006-07 Operating Budget $308,695 $50,500 Cultural Activities Cultural Activities- TG I F Sandler Center for the Performing Arts Total: $406,413 $765,608 . Public Information: Public information will be handled through the normal Council agenda process. . Recommendations: Approval. . Attachments: Ordinance Recommended Action: Approval Submitting Department/Agency: Department of Museums City Manage~ LL . ~~ 1 2 3 4 AN ORDINANCE TO TRANSFER $765,608 FROM THE DEPARTMENT OF MUSEUMS FY 2006-07 OPERATING BUDGET TO THE NON-DEPARTMENTAL FY 2006-07 OPERATING BUDGET 5 WHEREAS, it is necessary that specific funding previously 6 appropriated to the Department of Museums FY 2006-07 Operating 7 Budget be transferred to the non-departmental section of the FY 8 2006-07 Operating Budget. 9 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 10 OF VIRGINIA BEACH, VIRGINIA: 11 That $765,608 is hereby transferred within the FY 2006-07 12 Operating Budget from the Department of Museums to the Non- 13 Departmental Operating Budget. 14 Adopted by the Council of the City of Virginia Beach, 15 Virginia on the day of , 2006. Approved as to Content Approved as to Legal Sufficiency J\';r\dQ. ~ Management Servlces CA10098 PA/orders/Office of Cultural Affairs August 2, 2006 R-3 - 27 - Item v'J.3. RESOLUTIONS/ORDINANCES ITEM #55488 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED: Ordinance to AUTHORIZE a temoorarv encroachment into portions of the City's right-of-way at Brasileno Court by PATRICK J. and LISA M. HENEGHAN to construct a bulkhead, dock and boat lift. The following conditions shall be required: 1. The temporary encroachment shall be constructed and maintained in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach and in accordance with the City's specifications and approval. 2. The temporary encroachment shall terminate upon notice by the City to the applicant and, within thirty (30) days after such notice is given, the temporary encroachment must be removed from the encroachment area by the applicant and the applicant will bear all costs and expenses of such removal. 3. The applicant shall indemnifY and hold harmless the City, its agents and employees from and against all claims, damages, losses and expenses, including reasonable attorney's fees in case it shall be necessary to file or defend an action arising out of the location or existence of the temporary encroachment. 4. Nothing herein contained shall be construed to enlarge the permission and authority to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified herein, nor to permit the maintenance and construction of any encroachment by anyone other than the applicant. 5. The applicant agrees to maintain the temporary encroachment so as not to become unsightly or a hazard. 6. Nothing herein contained shall be construed to enlarge the permission and authority to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified herein, nor to permit the maintenance and construction of any encroachment by anyone other than the applicant. 7. The applicant agrees to maintain the temporary encroachment so as not to become unsightly or a hazard. 8. The applicant must obtain and keep in force all risk property insurance and general liability or such insurance as is deemed necessary by the City, and all insurance policies must name the City as additional insured or loss payee, as applicable. The applicant agrees to carry comprehensive general liability insurance in an amount not less than Five Hundred Thousand Dollars ($500,000), combined single limits of such insurance policy or policies. The applicant will provide endorsements providing at least thirty (30) days' written notice to the City prior to the cancellation or termination of, or material change to, any of the insurance policies. The applicant assumes all responsibilities and liabilities, vested or contingent, with relation to the temporary encroachment. August 8, 2006 - 28 - Item V, J. 3. RESOLUTIONS/ORDINANCES ITEM #55488 (Continued) 9. The City, upon revocation of such authority and permission so granted, may remove the temporary encroachment and charge the cost thereof to the applicant and collect the cost in any manner provided by law for the collection of local or state taxes; may require the applicant to remove such temporary encroachment; and, pending such removal, the City may charge the applicant for the use of such portion of the City's right-ol-way encroached upon the equivalent of what would be the real property tax upon the land so occupied if it were occupied by the applicant,' and if such removal shall not be made within the time ordered herein above, the City may impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that such temporary encroachment is allowed to continue thereafter; and, shall collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. Voting: 11-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None August 8, 1006 1 Requested by Department of Public Works 2 3 AN ORDINANCE TO AUTHORI ZE 4 TEMPORARY ENCROACHMENTS INTO 5 PORTIONS OF THE 100' CITY 6 DRAINAGE EASEMENT LOCATED 7 BEHIND 912 BRASILENO COURT BY 8 PATRICK J. HENEGHAN, II, AND 9 LISA M. HENEGHAN 10 11 12 13 WHEREAS, on September 13, 2005, Patrick J. Heneghan, II, and 14 Lisa M. Heneghan did receive approval from the City to construct 15 a bulkhead wi thin a portion of an existing City 100' drainage 16 easement (GPIN 2424-02-4573) behind their property located at 912 17 Brasileno Court, Virginia Beach, Virginia 23456 (GPIN 2414-92- 18 49 09); and 19 WHEREAS, Patrick J. Heneghan, II, and Lisa M. Heneghan 20 entered into an Agreement with the City regarding the bulkhead 21 encroachment and the said Agreement was recorded on October 7, 22 2005 as Instrument No. 200510070163860 in the Office of the 23 Clerk of the Circuit Court of the City of Virginia Beach, 24 Virginia; and 25 WHEREAS, Patrick J. Heneghan, II, and Lisa M. Heneghan now 26 desire to construct and maintain a wooden dock and boat lift 27 with associated access to the wooden dock within portions of the 28 City's same 100' drainage easement located behind 912 Brasileno 29 Court. 30 WHEREAS, City Council is authorized pursuant to ~~ 15.2- 31 2009 and 15.2-2107, Code of virginia, 1950, as amended, to 32 authorize temporary encroachments into the City's 100' drainage 33 easement subj ect to such terms and conditions as Council may 34 prescribe. 35 NOW, THEREFORE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 36 VIRGINIA BEACH, VIRGINIA: 37 That pursuant to the authority and to the extent thereof 38 contained in ~~ 15.2-2009 and 15.2-2107, Code of Virginia, 1950, 39 as amended, Patrick J. Heneghan, II, and Lisa M. Heneghan, their 40 heirs, assigns and successors in title are authorized to 41 construct and maintain a wooden dock and boat lift with 42 associated access to the wooden dock wi thin portions of the 43 44 45 46 47 City's 100' drainage easement as shown on those five (5) exhibit plats entitled: "PROPOSED BULKHEAD, DOCK & BOAT LIFT IN A CANAL @ LAGOMAR PROJECT LOCATION: 912 BRASILENO COURT VA BEACH, VA 23456 APPLICANT: LISA HENEGHAN 912 BRASILENO COURT VA BEACH, VA 23456" copies of which are on file in the Department of Public 48 Works and to which reference is made for a more particular 49 description; and 50 BE IT FURTHER ORDAINED, that the temporary encroachments 51 are expressly subj ect to those terms, condi tions and criteria 52 contained in the Agreement between the Ci ty of Virginia Beach 53 and Patrick J. Heneghan, II, and Lisa M. Heneghan (the 54 "Agreement"), which is attached hereto and incorporated by 55 reference; and 56 BE IT FURTHER ORDAINED, that the City Manager or his 57 authorized designee 1S hereby authorized to execute the 58 Agreemen t ; and 59 BE IT FURTHER ORDAINED, that this Ordinance shall not be in 60 effect until such time as Patrick J. Heneghan, II, and Lisa M. 61 Heneghan and the City Manager or his authorized designee execute 62 the Agreement. 63 Adopted by the Council of the City of Virginia Beach, 64 virginia, on the 8th day of August , 2006. APPROVED AS TO CONTENTS ~ts C. ~Sl", S NATURE Fro REd E'dcJ-t DEPARTMENT APPROVED AS TO LEGAL ~!~FORM . d ~"Q('LI C{)i.U\~ CITY ATTORNEY CA-9880 X:\OID\REAL ESTATE\Encroachments\PW Ordinances\CA9880 Heneghan Ordinance.doc R-l June 30, 2006 PREPARED BY VIRGINIA BEACH CITY A TIORNEY'S OffiCE EXEMPTED FROM RECORDA nON TAXES 58.1-81 1 (c)(4) -tJ.. A - THIS AGREEMENT, made this J(g day of -DP(i \ , 2006, by and between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation, Grantor, "City", and PATRICK J. HENEGHAN. II AND LISA M. HENEGHAN, THEIR HEIRS, ASSIGNS AND SUCCESSORS IN TITLE, "Grantee", even though more than one. WIT N E SSE T H: That, WHEREAS, the Grantee is the owner of that certain lot, tract, or parcel ofland designated and described as "LOT 269" as shown on that certain plat entitled "SUBDIVISION OF LAGOMAR, SECTION 6, PHASE 3, PART C, NOVEMBER 29,1993 SHEET 1 OF 5 PRINCESS ANNE BOROUGH VIRGINIA BEACH, VIRGINIA" and being further designated and described as 912 Brasileno Court, Virginia Beach, Virginia 23456 (GPIN 2414-92-4909); and WHEREAS, on September 13,2005, the Grantee did receive approval from the City to construct a bulkhead within a portion of an existing City 100' drainage easement (GPIN 2424- 02-4573) adjacent to their property aforesaid; and WHEREAS, the Grantee entered into an Agreement with the City regarding the bulkhead encroachment, and the said Agreement was recorded on October 7,2005, as Instrument No. 200510070163860 in the Office of the Clerk of the Circuit Court of the City of Virginia Beach, Virginia; and GPINs 2414-92-4909 and 2424-02-4573 WHEREAS, it is proposed by the Grantee to construct and maintain a wooden dock and boat lift with associated access to the wooden dock, "Temporary Encroachment", in the City of Virginia Beach; and WHEREAS, in constructing and maintaining the Temporary Encroachment, it is necessary that the Grantee encroach into a portion of the aforesaid existing City 100' drainage easement, "The Encroachment Area"; and WHEREAS, the Grantee has requested that the City permit a Temporary Encroachment within The Encroachment Area. It is expressly understood and agreed that the Temporary Encroachment will be constructed and maintained in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach, and in accordance with the City's specifications and approval and is more particularly described as follows, to wit: A Temporary Encroachment into The Encroachment Area as shown on those certain plats entitled: "PROPOSED BULKHEAD, DOCK & BOAT LIFT IN A CANAL @ LAGOMAR PROJECT LOCATION: 912 BRASILENO COURT VA BEACH, VA 23456 APPLICANT: LISA HENEGHAN 912 BRASILENO COURT VA BEACH, VA 23456" Said pI ats are dated 04/18/05, were last revised 03/23/06 and consist of a total of five (5) sheets, copies of which are attached hereto collectively as Exhibit "A" and to which reference is made for a more particular description. It is further expressly understood and agreed that the Temporary Encroachment herein authorized terminates upon notice by the City to the Grantee, and that within thirty (30) days after the notice is given, the Temporary Encroachment must be removed from The Encroachment Area by the Grantee; and that the Grantee will bear all costs and expenses of such removal. 2 It is further expressly unders tood and agreed that the Grantee shall indemnify and hold harmless the City, its agents and employees, from and against all claims, damages, losses and expenses including reasonable attorney's fees in case it shall be necessary to file or defend an action arising out of the location or existence of the Temporary Encroachment. It is further expressly understood and agreed that nothing herein contained shall be construed to enlarge the permission and authority to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified herein, nor to permit the maintenance and construction of any encroachment by anyone other than the Grantee. It is further expressly understood and agreed that the Grantee agrees to maintain the Temporary Encroachment so as not to become unsightly or a hazard. It is further expressly understood and agreed that the Grantee must obtain a permit from the Office of Development Services Center/Planning Department prior to commencing any construction within The Encroachment Area. It is further expressly understood and agreed that the Grantee must obtain and keep in force all-risk property insurance and general liability or such insurance as is deemed necessary by the City, and all insurance policies must name the City as additional named insured or loss payee, as applicable. The Grantee also agrees to carry comprehensive general liability insurance in an amount not less than $500,000.00, combined single limits of such insurance policy or policies. The Grantee will provide endorsements providing at least thirty (30) days written notice to the City prior to the cancellation or termination of, or material change to, any ofthe insurance policies. The Grantee assumes all responsibilities and liabilities, vested or contingent, with relation to the Temporary Encroachment. 3 It is further expressly understood and agreed that the City, upon revocation of such authority and permission so granted, may remove the Temporary Encroachment and charge the cost thereofto the Grantee, and collect the cost in any manner provided by law for the collection of local or state taxes; may require the Grantee to remove the Temporary Encroachment; and pending such removal, the City may charge the Grantee for the use of The Encroachment Area, the equivalent of what would be the real property tax upon the land so occupied if it were owned by the Grantee; and if such removal shall not be made within the time ordered herein above by this Agreement, the City may impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that the Temporary Encroachment is allowed to continue thereafter, and may collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. IN WITNESS WHEREOF, Patrick J. Heneghan, II and Lisa M. Heneghan, the said Grantee, have caused this Agreement to be executed by their signature(s) and seal(s) duly affixed. Further, that the City of Virginia Beach has caused this Agreement to be executed in its name and on its behalfby its City Manager and its seal be hereunto affixed and attested by its City Clerk. CITY OF VIRGINIA BEACH By City Manager/Authorized Designee of the City Manager (SEAL) ATTEST: City Clerk 4 ~.~-;.-. Patf . . Heneghan, ~ ~,u ~. ~ Lisa M. Heneg an ' STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this day of , 2006, by , CITY MANAGER! AUTHORIZED DESIGNEE OF THE CITY MANAGER. 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 for the CITY OF VIRGINIA BEACH. Notary Public My Commission Expires: 5 STATE OF CITY/COUNTY OF Vz1t6."IN'Z.f /):;adS , to-wit: ,4f(lz1.. The foregoing instrument was acknowledged before me this Z~ day of , 2006, by Patrick 1. Heneghan, II. ~~- My Commission Expires: ~ Hel'&;!''\ Is i&y aI V!~Ja WOW\I F\ll1!!c !\)~ - 9 ~ ~res: _~_"t.L#Gd .... ~ ...."'<,,, .,.. .., MARY I\'. ,:;.~" "'i"" STATE OF CITY/COUNTY OF V A tJe~ , to-wit: --H#/- The foregoing instrument was acknowledged before me this 2~ , 2006, by Lisa M. Heneghan. ~~ day of My Commission Expires: ComfOOjIW:~i;'<" Uy~0I1 ;;':,l;';'k2.~~ MARy P.. BROGA!\! APPROVED AS TO LEGAL SUFFICIENCY AND FORM APPROVED AS TO CONTENT ~,['~ c. <iXuls",- il':> TY REAL ESTATE AGENT ~JjG{(/ 'If'(tUC~ CITY ATTORNEY 6 EXHIBIT "A" LOCATION MAP NOT TO SCALE 1 ~ PERMIT #: VB05-117 REVISED: 03/23/06 .,f.QR BANK STABILIZATION. DOCK & BOAT LIFT PROPOSED BULKHEAD, DOCK & BOAT LI FT IN A CANAL @ LAGOMAR PROJECT LOCATION: 912 BRASILENO COURT VA BEACH. VA 23456 APPLICANT; LISA HENEGHAN 912 BRASILENO COURT VA BEACH. VA 23456 DATE: 04/18/05 SHEET 1 OF 5 ADJACENT PROPERlY OWNERS: 1) DAVID NELSON 2) ELDON GRIGGS toILW-o.O L 100' DRAINAGE EASEMENT 7 TOP OF BANK J- ----- --- --- e 5' L==37 60' '00. E 62.4- - -'-, .-!' ,!,4:f- - - - - -R==700.00 - .. FENCE, lYP g \ I g I~ .- 912 BRASILEN902 4CT9'09 \ \ &. ~ GPIN: 2414 \~_ '0\ \ g. ~I ~ I~ ~ \ I'" z\ \~ \ \~. \ \ \ fj ~ \ ~~ \ I. ~W I ~ ~o \ ~ \ \ L""Z5.87' ....J.- \ . " "'r . '. . _ _ - -1l.- ~ R=;375.00' ~ - S 84'32'00. VI 74.18' -BRASILENO COURT- 1) DAVID NELSON 916 BRASILENO CT. VA BEACH, VA 23456 GPIN: 2414 92 3908 G.RAPHIC SCALE 151 0 15' 30' ~~~~ I I 1" = 30' EXISTING SITE PLAN SCALE: 1 "=30' -EBB") L-FLOOD- ~ Vl o a:: ~~ :::E go t ~ FENCE. lYP 2) ELDON GRIGGS 908 BRASILENO CT. VA BEACH. VA 23456 GPIN: 2414 93 5010 t..: PROPERlY UNE PERMIT #: VB05-117 REVISED: 03/23/06 ,'. ;": ~ -, . -".,," PROJECT PURPOSE: CONSTRUCT 8ULKl:lEAD~FOR BANK STABILIZATION, DOCK & BOAT LIFT ADJACENT PROPERlY OWNERS: PROPOSED BULKHEAD, DOCK & BOAT LIFT IN A CANAL @ LAGOMAR PROJECT LOCATION: 912 BRASILENO COURT VA BEACH, VA 23456 APPLICANT: USA HENEGHAN 912 8RASlLENO COURT VA BEACH, VA 23456 DATE: 0./18/05 SHEET 2 OF 5 1) DAVID NELSON 2) ELDON GRIGGS t.lLW-O.O ENCROACtiM.Etill PROPOSED S'X16' DOCK, 21.25' FROM PROPERTY LINE t ~ It: PROPERTY UNE ~ INTlCATES PHOTO . GRAPHIC SCALE 10' 0 10' 20' ~~~a~ I I 1" = 20' N ~ PROPOSED S'X1S' DOCK \ \ \ PROPOSED SITE SCALE: 1"-20' PLAN PERMIT #: VB05-11 7 REVISED: 03/23/06 PROJECT PURPOSE: CONSTRUCT BU~::~i,Q PROPOSED BULKHEAD. DOCK & BOAT 1I FT IN A CANAL @ LAGOMAR PROJECT LOCATION: 912 BRAS1LENO COURT VA BEACH. VA 23456 ADJACENT PROPERlY OWNERS: 1) DAVID NELSON 2) ELDON GRIGGS t.lLW-O.O APPLICANT: LISA HENEGHAN 912 BRASILENO COURT VA BEACH VA 23456 DA1E: 04{18{05 SHEET 3 OF 5 ~ 1. ALL WOOD (PIUNG & FRAMING) TO BE TREATED (2.25 pef, CCA). 2. ALL HARDWARE TO BE HOT DIP GALVANIZED. 3. SEED ALL DISTURBED GROUND SURFACES. 4. INSTALL 36" HIGH SILT FENCE SEAWARD OF ALL DISTURBED AREAS AT CONCLUSION OF EACH WORK DAY. EMBED 4-" HORIZONTALLY AND 4" VERTICAllY AND PROPERLY MAINTAIN. ~2'-1 I I I I I I I I I :=n "\ \ *" DIAM. TIE \ RODS 0 EACH \ " PILE \ V5' EXIST. GRADE FINISH GRADE. SLOPE TO DRAIN l' MIN. COVER OVER PILE 8" DIAM. X 10':i: LONG BATTER PILE, TYP. Ii) EACH TIE ROD PERMIT #: YB05-117 REVISED: 03/23/06 ADJACENT PROPERlY OWNERS: 1) DAVID NELSON 2) ELDON GRIGGS NQIE; T8M EL.=6.S', POOL CONC. DECK REMOVE EXIST. FENCE & RE-INSTALL AS REQUIRED a... f? ", :10::: CI CI ~~ ~L5 tnm ~~ - lL. 0 ..J C5 0 2: ffi L ' I {; 2"X8" CAP WI 2-20d 2 -, NAILS @ 2' O.C. I I %.. DIAM. BOLTS @ I I MIDPOINT BETWEEN PILES , ----EL=6.0' 2-2"X8" WALER - - - EL.=4.S' 2"X8" CONT. 2-2"xa" WALER - - - - MHW=2.0' I 12' :i: PROPOSED 2"X10" T&G TIMBER BULKHEAD, 50% EMBEDMENT, MIN. PROPOSED WOOD PILES. 8" DIAM. @ 5'-4" D.C., EMBED 50%, MIN. BULKHEAD SCALE: 1/.....1' GRAPHIC SCALE o r ~ ~HI~~~ 1/"'. =1'-0. & PROJECT LOCATION: 912 BRASILENO COURT VA BEACH, VA 23456 APPLICANT: USA HENEGHAN 912 BRASILENO COURT VA BEACH, VA 23456 DATE: 04/18/05 SHEET ... OF 5 - . 8" UFT PILES, 50% BOAT LIFT PROPOSED 8'X16' EMBEDMENT. CUT-OFF 8' 4-, 16' DOCK -, EL. 12.00' 6'- x J r1O' \ x ~ (X) 1 X xxxx x x Y"VV 5TH N xx xxxxx y "'--NW CO~NER OF \ 16' 4 L BULKHEAD. U "- 2' BOAT UFT ACCESS CONSTRUCTlO BULKHEAD -- 2X8" STRINGERS. 4. INSTALL BOAT LIFT lAW TYP. MANUFACTURER'S INSTRUCTIONS BULKHEAD UNDER CONSTRUCTION. GRAPHIC SCALE SEE SHEET 4 o 2' ." ~HH~ 1/." -1'-0" ~ 1" ALL WOOD (PILING & FRAMING) TO BE TREATED (2.25 PCF, CCA). ALL HARDWARE TO BE HOT DIP GALVANIZED. 2. SEED ALL DISTURBED GROUND SURFACES. 3. INSTALL 36" HIGH SILT FENCE SEAWARD OF ALL DISTURBED AREAS AT CONCLUSION OF EACH WORK DAY. EMBED 4" HORIZONTALLY AND 4" VERTICALLY AND PROPERLY MAINTAIN. PROPOSED 2 500 LB f NDER N PROPOSED DOCK-PLAN GRAPHIC SCALE SCALE: 1/8.=1' o 4' 8" IiH-I j.-.j j.-.j j.-.j 1/8" =1'-0. I 8' I 5/8" DIAM. THRU BOLT W/ OGEE & I TYP. I PLATE WASHERS, I I TYP. ----------r-~a=w 2XS" JOISTS, TYP. I - MHW=2.0' - MLW=O.O' EXIST. BOTTOM WOOD PILES. 8. DIAM. @ 8':1: O.C., 50% MIN.PENETRATION, TYP. SECTION SCALE: 1/4"=1' PERMIT #: VB05-117 REVISED: 03/23/06 PROJECT PURPOSE: CONSTRUCT BULKHEAD FOR BANK STABILIZATION, DOCK & BOAT LIFT PROPOSED BULKHEAD, DOCK & BOAT L1Ff IN A CANAl @ LAGOMAR ADJACENT PROPERlY OWNERS: 1) DAVlD NELSON 2) ELDON GRIGGS ULW-o.O PROJECT LOCATION: 912 BRASILENO COURT VA BEACH. VA 23456 APPLICANT: USA HENEGHAN 912 BRASILENO COURT VA BEACH, VA 23456 DATE: 04/18/05 SHEET 5 OF 5 o . c,J .- -. ti'! f!o ...~ ~1 0& -0 .... Co. . Uta -c w- -I E.c o. .. - 1L1: -:I ~O &~ o c .. . CL= ..- Of! ..... . c. ~I 21 - - :J~ E! o ::1 i~ ~CI - C ....- ~ ,;..:8 o=. '01: s:::.:I a.8 a . ! . at e 1 .c . - 1:: ::I o U o e ~ ! III ("III ... . - ~ 8. 2 G. a .. . e . U E o .. .... e Ii! ...0 . ~I .r:.0 Q..~ e- .0 .t::c ~c: - !i ..t:: at~ c_ -. 1.5 .t::1!I -. ~.5. gi 0_ 02 CA ~.. ...!! .- mS - 8. ." . -c- ..~ :!!"o :.e" Ii!. ~..- c.! o gc: ~I,)at 1:cc fJ! 25.11 ".co i"JI 1,):. .!..t::.!! 'U oX C::. c-_ ::I- . . .a ti .~ C") .. 0 o:!.a OS~ .r::. _ . a..a. ....:. "c c 0 ... t:l .5: .&:1 !::E ..... ..5,... at,... .. . ... EO .~ =1:: S:a .0 .u .0 .&:c ... . - _11 '&:-1) .... .t!o- CIDi; . ('Ill A 0""1 .- 2 i1 0"0 -.i; ~Ii l2. 2 AI! a.._ >,C1 .a0 ..... lfi" Z.i -,X ~"JI ole ..."c1l o,Xo ~:i- a...aa. LOCATION MAP SHOWING ENCROACHMENT REQUESTED BY PATRICK J. HENEGHAN, II AND LISA M. HENEGHAN FOR A WOODEN DOCK AND BOAT LIFT WITH ASSOCIATED WOODEN DOCK ACCESS 912 BRASILENO COURT GPIN 2414-92-4909 SCALE: 1" = 200' 912 BRASILENO BOAT L1Fr.DGN M.J.S. PREPARED BY pJW ENG. CADD DEPT. APRIL 25,2006 - 29- Item V.J.4.a.b. RESOLUTIONS/ORDINANCES ITEM #55489 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED: Ordinances to ACCEPT and APPROPRIATE: a. $34,156 Grant from the Virginia Office of Emergency Medical Services (VaEMS) to the FY2006-07 operating budget of the Emergency Medical Services (EMS) re purchase of defibrillators in the "Four-for-Life" program. b. $15,000 from the Department of Criminal Justice for the Byrne/JAG Recruiting and Retention of Criminal Justice Professionals Grant to the Police Department's FY 2006-07 operating budget to more adequately represent the demographics of the City as a whole. Voting: 11-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None August 8, 2006 1 2 3 4 5 6 7 8 AN ORDINANCE TO ACCEPT AND APPROPRIATE $34/156 FROM THE VIRGINIA OFFICE OF EMERGENCY MEDICAL SERVICES TO THE FY 2006-07 OPERATING BUDGET OF THE EMERGENCY MEDICAL SERVICES DEPARTMENT FOR THE PURCHASE OF DEFIBRILLATORS BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA 9 BEACH 1 VIRGINIA: 10 1) That $34/156 in additional state revenue is hereby 11 accepted from the Virginia Office of Emergency Medical Services 12 and appropriated to the FY 2006-07 Operating Budget of the 13 Emergency Medical Services Department to assist with the 14 purchase three 12 lead defibrillators and three automatic 15 external defibrillatorsl with state revenue increased 16 accordingly. 17 2) That $32/506 is hereby transferred from the Reserve 18 for Contingencies to the Department of Emergency Medical 19 Services and $11651 is hereby transferred within the Department 20 of Emergency Medical Services to purchase three 12 lead 21 defibrillators and three automatic external defibrillators. 22 Adopted by the Council of the City of Virginia Beachl 23 Virginia on the 8th day of August 1 2006. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: J3w Q Q .,Nlh Management serv~ CAI0093 V:citylaw\00018160.DOC R-3 July 28, 2006 Robert Straube, M.D. M.P.H. State Health ComJl1issioner COMMONWEALTH of VIRGINIA Department of Health Office of Emergency Medical Services P.O_ Box 2448 Richmond, VA 23218-2448 109 Governor St.. Suite LJ 8-55 Richmond. VA 23219 Gary R. Brown Director I-HOO-523-6019 (VA only) 804-864- 76()0 FAX: 804-864-7580 P. Scott Wi nston Assistan1 Director July l, 20() 6 Kathryn Brooks City of V A Beach Dept of EMS 1917 Arctic Avenue Virginia Beach, VA 23451 Dear Grant Administrator: The Office of Emergency Medical Services (OEMS) is pleased to announce that your agency has been awarded funding from the OEMS Consolidated Grants Program. The attached Award Page itemizes the actual dollar value and item(s) your agency has been awarded under this program. In order to provide the best possible customer service, please take time to read all grant award documentation. Please provide the grant number on all correspondence to OEMS and contact our office if you have any questions. . Award Acceptance Form (Agreement for Services): mu st be returned within 60 days of grant award. Original or faxed copies will be accepted. **Note: all forms are available for downloading on our website: www.vdh.virginia.govloems. . Instructions for Grant Reimbursement. . Reimbursement Checklist: AIl items must be submitted in order to process your reimbursement. . Conditions: A condition has been placed on some grant awards. Any and all conditions must be met in order to receive reimbursement. . Vehicles: All vehicles awarded under this grant must be alJailableforservice 24 hours a day - 7 days a week. . PPCRlPPDR submission is required. Grant reimbursements will NOT be processed for any agency not fully compliant. . For communications equipment purchases, we recommend that you check the STARS contract for pricing. It would be in your agency's best interest to purchase awarded item(s) by December 31, 2006 for the best price advantage, but no later than June 30, 2007. Contact Carol S. Morrow, OEMS Grant Program Manager at (804) 864-761101' Linwood P. Pulling, Grant Specialist at (804) 864-7612 or 1-800-523-6019 for additional grant information. Congratulations, 4-t&{ G&R. Brown Director Enclosures If VIRGINIA "; DEI'ARrMi:I~T OF UEAI.lI-I Prull.>r:1in8 You and YOUt fnv;runmenf \v\V\Y. vdh ,virgini }l.goV/Of:rnS \0/ Office of Emergency Medical Services Consolidated Grant Program AWARD PAGE July I, 2006 - June 30, 2007 Grant Period Agency Name: CITY OF VA BEACH DEPT OF EMS Grant Number: TI-C07/06-06 Code Items Requested Status G 15809 Brochures NOT FUNDED G 15810 Recruitment Booth G 15811 (AED/Manual) with 12 lead G 15812 Automatic External Defibrillat NOT FUNDED FUNDED FUNDED Quantity Funded Funding C % Level T 3 50 50 # Amount Funded 3 $32,506.50 $1,650.00 $34,156.50 G - Rescue Squad Assistance Fund R - Recruitment and Retention T - ALS 'Train.ing Fund 1 2 3 4 5 6 AN ORDINANCE TO ACCEPT AND APPROPRIATE $15,000 FROM THE DEPARTMENT OF CRIMINAL JUSTICE FOR THE BYRNE/JAG RECRUITING AND RETENTION OF CRIMINAL JUSTICE PROFESSIONALS GRANT TO THE POLICE DEPARTMENT'S FY 2006-07 OPERATING BUDGET 7 WHEREAS, the Police Department has identified $5,000 in 8 matching funds to support the Byrne/JAG Recruiting and Retention of 9 Criminal Justice Professionals Grant. 10 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 11 VIRGINIA BEACH, VIRGINIA: 12 That $15,000 is hereby accepted from the Department of 13 Criminal Justice and appropriated to the Police Department's FY 14 2006-07 Operating Budget, wi th federal revenue increased 15 accordingly. 16 17 Adopted by Virginia, on the the 8th Council day of of the Auqust City of Virginia , 2006. Beach, Requires an affirmative vote by a majority of the members of the City Council. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: ~~~~~ J@~ C!(~ City Attorney's ffice CA10094 V:\citylaw\00018163.DOC R-2 July 27, 2006 ~. COMMONWEALTH of VIRGINIA Leonard G. Cooke Director Department of Criminal Justice Services June 28, 2006 202 N. Ninth Street Richmond, Virginia 23219 (804) 786-4000 FAX (804) 371-8981 TOO (804) 386-8732 Mr. James K. Spore City Manager City of Virginia Beach 2401 Courthouse Drive Virginia Beach, VA 23456 Title: Byrne/JAG - Recruiting & Retention of Crim. Just. Professionals Dear Mr. Spore: I am pleased to advise you that grant number 07-A5209AD05 for the above-referenced grant program has been approved in the amount of $15,000 in Federal Funds and $5,000 in Local Match for a total award of $20,000. Enclosed you will find a Statement of Grant Award and a Statement of Grant A ward Special Conditions. To indicate your acceptance of the award and conditions, please sign the award acceptance and return it to Janice Waddy, Grants Administrator, at the Department of Criminal Justice Services (DCJS). Please review the conditions carefully; as some require action on your part before we will disburse grant funds. Also, enclosed are the Post Award Instru~ions and R~nortin~ ReQuirements. Please refer to and read this information carefully as it contains details on processing financial and progress reports, as well as requesting awarded funds. Remember all financial and progress reports, budget amendment requests and request for funds must be processed through our Grants Management Online Information System (GMIS). We appreciate your interest in this grant program and will be happy to assist you in any way we can to assure your project's success. If you have any questions, please call Kathi Lee at (804) 786-4303. Yours very truly, l~~(O. ~ Leonard G. Cooke I, , 1 .~ ';' i '1 " ;!; Enclosures cc: Mr. Ray Greenwood, Training Director Mr. Tom Mitchell, Budget Manager Kathi Lee, DCJS I' : \J U L 1 0 2006 ',':... , :\ Crlt'(linal Justice Service Board' Committee on Training' Advisory Committee on Juvenile Justice Advisory Committee to Court Appointed Special Advocate and Children's Justice Act Programs Private Security Services Advisory Board, Criminal Justice Information Systems Committee - 30- Item v'J.5. ADD-ON RESOLUTIONS/ORDINANCES ITEM #55490 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED: Resolution REITERA TING full support for Old Dominion University's opening of a four-year campus at the Virginia Beach Higher Education Center Voting: 11-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None August 8, 2006 Requested by MAYOR OBERNDORF, VICE-MAYOR JONES, and COUNCILMEMBERS DeSTEPH, DIEZEL, DYER, HENLEY, McCLANAN, UHRIN, VILLANUEVA, WILSON, and WOOD 1 2 3 4 5 6 7 A RESOLUTION REITERATING FULL SUPPORT FOR OLD DOMINION UNIVERSITY'S OPENING OF A FOUR-YEAR CAMPUS AT THE VIRGINIA BEACH HIGHER EDUCATION CENTER WHEREAS, on January 11, 2006, Old Dominion University 8 announced plans to expand its offerings at the Virginia Beach 9 Higher Education Center, concentrating on bachelor's and master's 10 degree programs in health services and education and counseling; 11 WHEREAS, approximately 4500 Old Dominion University students 12 live in Virginia Beach; 13 WHEREAS, the taxpayers of Virginia Beach subsidize Virginia's 14 public colleges and uni versi ties, but until now they have been 15 unable to earn a degree at one of those colleges or universities 16 without commuting to another city or town; 17 WHEREAS, the presence of a four-year campus will allow 18 Virginia Beach's young people an opportunity to earn their degrees 19 here, in their hometown; 20 WHEREAS, the presence of a four-year campus will increase 21 opportunities for adults to further their education, which will 22 result in the City having a stronger workforce; 23 WHEREAS, the absence of a four-year public uni versi ty In 24 Virginia Beach is an impediment to the City's continued economic 25 development and vitality; 26 WHEREAS, the City has extensively supported Tidewater 27 Community College's Virginia Beach campus since its inception; 28 WHEREAS, the City's support for Tidewater Community College 29 ("TCC") includes providing TCC with all of the land on which its 30 Virginia Beach campus is situated; 31 WHEREAS, the City's direct financial support to TCC during the 32 past three decades totals more than $35 million for both capital 33 projects and operations, including more than $13 million for TCC's 34 Advanced Technology Center; 35 WHEREAS, City Council does not support TCC's attempts to 36 prevent Old Dominion University from offering the courses necessary 37 for Old Dominion University to have four-year programs in Virginia 38 Beach; and 39 WHEREAS, despite arguments to the contrary, TCC branches not 40 only can co-exist with a four-year public university in the same 41 city, but TCC branches can thrive in such cities, as evidenced by 42 TCC's continued success in Norfolk, which is home to not one but 43 two four-year public universities; 44 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 45 VIRGINIA BEACH: 46 1. That the City Council hereby reiterates its continued full 47 support for Old Dominion University's efforts to provide access to 48 education through the expansion of programming at the Virginia 49 Beach Higher Education Center; and 50 2. That the City Council finds that the presence of a four-year 51 campus in Virginia Beach will not be harmful to Tidewater Community 52 College's continued growth and success in Virginia Beach. 53 54 Adopted by the Council of the City of Virginia Beach, 55 Virginia, on the Rth day of , 2006. AlllJl1St APPROVED AS TO LEGAL SUFFICIENCY z~ :?- City Attorney's Office CA-I0089 H:/P&A/OrdRes/ODU TCC res.doc August 8, 2006 R-5 - 31 - Item V-K. PLANNING ITEM # 55491 1. ROBERT M. ROUSSEAU ENLARGEMENT OF A NONCONFORMING USE 2. OCEAN BAY HOMES, L.L.C. VARIANCE 9 5B of the Site Plan Ordinance, Floodplain Regulations 3. JANET KOTTKE MODIFICATION OF CONDITIONS CONDITIONAL USE PERMIT (approved February 12,1990/ September 12,1995) 4. ST. MICHAEL LUTHERAN CHURCH MODIFICATION OF CONDITIONS CONDITIONAL USE PERMIT (approved October 12, 2004/modijied August 9, 2005) 5. NEW JERUSALEM CHURCH CONDITIONAL USE PERMIT August 8, 2006 - 32 - Item v,K. PLANNING ITEM # 55492 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council APPROVED IN ONE MOTION Items 1, 2, 3, 4 and 5 afthe PLANNING BY CONSENT AGENDA. Voting: 11-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None August 8, 2006 - 33 - Item v'K.l. PLANNING ITEM # 55493 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED a Resolution upon application of ROBERT M. ROUSSEA U for an Enlarf!ement of a Nonconforminf! Use at 403 16th Street to demolish an existing duplex dwelling damaged by fire, construct a single-family dwelling on the site, add a second story deck over an existing porch that is attached to the single-family dwelling already located on the site: Application of Robert M. Rousseau for a Conversion and Enlargement of a Nonconforming Use on Property located at 403 16th Street (DISTRICT 6 - BEACH) The following conditions shall be required: 1. The site shall be developed substantially in accordance with the submitted exhibit site plan entitled "ROUSSEAU RESIDENCE, LOT - 3, BLOCK - 24, VIRGINIA BEACH, VA. " Prepared by WPL, and dated 6/8/06. Said plan has been exhibited to the Virginia Beach City Council and is on file in the Virginia Beach Planning Department. 2. The proposed single-family dwelling shall be constructed substantially in accordance with the submitted elevation, designated as "houseplans.bhg.com/024d-0038". The applicant shall use high-quality building materials such as hardi-plank siding, brick, and metal standing seam roof system or architectural grade roofing shingles. Exterior trim shall be wrapped with vinyl. Porch floors shall be composite materials or concrete. The use of vinyl siding on the body of the building is strongly discouraged. Said plan has been exhibited to the Virginia Beach City Council and is on file in the Virginia Beach Planning Department. 3. The exterior color scheme for the existing and proposed single-family dwellings shall be compatible. 4. The proposed second story deck over the existing open porch attached to the existing single-family dwelling shall be constructed of composite materials. Voting: 11-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None August 8, 2006 1 2 3 4 5 6 A RESOLUTION AUTHORIZING A CONVERSION AND ENLARGEMENT OF A NONCONFORMING USE ON PROPERTY LOCATED AT 403 16TH STREET, IN THE BEACH DISTRICT WHEREAS, Robert Rousseau, (hereinafter the "Applicant"), 7 has made application to the City Council for authorization to 8 demolish a nonconforming duplex, replace it with a single-family 9 dwelling, and enlarge the other single-family dwelling situated 10 on a certain lot or parcel of land having the address of 403 16th 11 Street, in the A-12 Apartment District; and 12 WHEREAS, the said single-family dwelling and duplex are not 13 permitted uses together on the same zoning lot in the A-12 14 Apartment District; and 15 WHEREAS, pursuant to Section 105 of the City Zoning 16 Ordinance, the conversion and enlargement of a nonconforming use 17 are unlawful in the absence of a resolution of the City Council 18 authorizing such action upon a finding that the proposed use, as 19 changed, will be equally appropriate or more appropriate to the 20 zoning district than is the existing use; 21 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY 22 OF VIRGINIA BEACH, VIRGINIA: 23 That the City Council hereby finds that the proposed use, 24 a single-family dwelling and the enlargement of the other 25 single-family dwelling located on the lot will be equally 26 appropriate to the district as is the existing use. 1 27 BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF 28 VIRGINIA BEACH, VIRGINIA: 29 That the proposed demolition of the Applicant's 30 nonconforming duplex and its replacement with a single-family 31 dwelling, and the enlargement of the other single-family 32 dwelling are hereby authorized with the following conditions: 33 1. The site shall be developed substantially in 34 accordance with the submitted exhibit site plan entitled 35 "ROUSSEAU RESIDENCE, LOT - 3, BLOCK - 24, VIRGINIA BEACH, VA." 36 prepared by WPL, and dated 6/8/06. Said plan has been exhibited 37 to the Virginia Beach City Council and is on file ln the 38 Virginia Beach Planning Department. 39 2. The proposed single-family dwelling shall be 40 constructed substantially in accordance with the submitted 41 elevation, designated as "houseplans.bhg.com/024d-0038". The 42 applicant shall use high-quality building materials such as 43 hardi -plank siding, brick, and metal standing seam roof system 44 or architectural grade roofing shingles. Exterior trim shall be 45 wrapped with vinyl. Porch floors shall be composite materials or 46 concrete. The use of vinyl siding on the body of the building is 47 strongly discouraged. Said plan has been exhibited to the 48 Virginia Beach City Council and is on file in the Planning 49 Department. 2 50 3. The exterior color scheme for the existing and 51 proposed single-family dwellings shall be compatible. 52 4. The proposed second story deck over the exiting open 53 porch attached to the existing single-family dwelling shall be 54 constructed of composite materials. 55 56 Adopted by the Council of the City of Virginia Beach on the 57 Rrh day of Augustt 2006. CA-10091 OID\Ordres\nonconforming-rousseau.doc R-3 July 28t 2006 APPROVED AS TO CONTENT: AP1JJd'<tTO/rj[7Y' City Attorneyts Office 3 - 34- Item v'K.2. PLANNING ITEM # 55494 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council APPROVED application of OCEAN BAY HOMES, L.L.C. for a Variance to Section 5B of the Site Plan Ordinance, Floodplain Regulations Application of Ocean Bay Homes, L.L. C. for a Variance to Section 5B of the Site Plan Ordinance, Floodplain Regulations on property located at 314 A & B 29'h Street (GPINs 2428010189; -0271). DISTRICT 6 - BEACH Voting: 11-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None August 8, 2006 - 35 - Item v'K.3. PLANNING ITEM # 55495 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council MODIFIED Conditions upon application of JANET KOTTKE re Conditional Use Permit (approved by City Council on February 12, 1990 and September 12, 1995) to extend the hours of operation to 6 P.M. Monday through Friday. ORDINANCE UPON APPLICATION OF JANET KOTTKE FOR A MODIFICATION OF CONDITIONS FOR A CONDITIONAL USE PERMIT APPROVED BY CITY COUNCIL ON FEBRUARY 12, 1990 AND SEPTEMBER 12, 1995 Ordinance upon application of Janet Kottke for a Modification of Conditions for a Conditional Use Permit approved by City Council on February 12, 1990, and September 12, 1995, on property located at 5009 Providence Road (GPIN 1466827779). DISTRICT 2 - KEMPSVILLE. The following conditions shall be required: 1. All conditions, with the exception of Number 1, attached to the Conditional Use Permit granted by the City Council on February 12, 1990, and as subsequently modified, remain in affect. 2. Condition Number 1 of the February 12, 1990, Conditional Use Permit is deleted and replaced with the following: Hours of operation shall be limited to (Monday through Friday): a. 175 students - 7:00 am -12:00 Noon b. 140 students -12:00 Noon - 3: 15 pm c. 70 students - 3: 15 - 6:00 pm d. Evening meetings, not to exceed 30 families or staff members, are permitted. Voting: 11-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None August 8, 2006 - 36 - Item v'K.4 PLANNING ITEM # 55496 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council MODIFIED Conditions upon application of ST. MICHAEL LUTHERAN CHURCH re Conditional Use Permit (approved by City Council on October 12, 2004, and Modified on August 9, 2005) to reduce the maximum number from 150 to 100 children allowed for child care. ORDINANCE UPON APPLICATION OF ST. MICHAEL LUTHERAN CHURCH FOR A MODIFICATION OF CONDITIONS FOR A CONDITIONAL USE PERMIT APPROVED BY CITY COUNCIL ON OCTOBER 12, 2004, AND AS MODIFIED ON AUGUST 9, 2005 Ordinance upon application of St. Michael Lutheran Church for a Modification of Conditions for a Conditional Use Permit approved by City Council on October 12, 2004, and as Modified on August 9, 2005. Property is located at 2208 Princess Anne Road (GPIN 2404963184). DISTRICT 7 - PRINCESS ANNE The following conditions shall be required: 1. All conditions, with the exception of Condition Number 2 and Condition Number 3, attached to the Modification of Conditional Use Permit granted by the City Council on August 9,2005, remain in affect. 2. Condition Number 2 of the August 9,2005, Modification of Conditional Use Permit is deleted and replaced with the following: A maximum of 100 children in the range from two and one-half through twelve years may be cared for at this site. 3. Condition Number 3 of the August 9,2005, Modification of Conditional Use Permit requiring a right-turn lane is deleted. Voting: 11-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None August 8, 2006 - 37 - Item V.K.5. PLANNING ITEM # 55497 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council ADOPTED an Ordinance upon application of NEW JERUSALEM CHURCH for a Conditional Use Permit re a church addition: ORDINANCE UPON APPLICATION OF NEW JERUSALEM CHURCH FOR A CONDITIONAL USE PERMIT FOR A CHURCH ADDITION R080634170 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of New Jerusalem Church for a Conditional Use Permit for a church addition on property located at 118 Erie Avenue (GPINs 2417536173,' 2417536197; 2417537230,' 2417536203; 2417536237; 2417536370; 2417537338; 2417535389). DISTRICT 6 - BEACH The following conditions shall be required: 1. The development of the site shall substantially conform to the submitted "CONCEPT PLAN ADDITIONS TO NEW JERUSALEM CHURCH", prepared by Gallup Surveyors and Engineers, LTD, and dated March 8, 2005. Said plan has been exhibited to the Virginia Beach City Council and is on file in the Virginia Beach Planning Department. 2. The exterior of the building shall substantially conform to the submitted elevation plan prepared by Verebely and Associates, Architects. Said plan has been exhibited to the Virginia Beach City Council and is on file in the Virginia Beach Planning Department 3. The applicant shall submit a proposed building materials list and list of proposed building colors to the Virginia Beach Planning Department for review and approval during the detailed site plan review process. The applicant shall comply with sound attenuation requirements as specified in the City Zoning Ordinance and the Virginia Uniform Statewide Building Code 4. The applicant shall submit a photometric plan for review and approval by the Virginia Beach Planning Department/Current Planning Division. All fixtures shall be of an appropriate height and design so as to prevent any direct reflection or glare towards adjacent uses and City streets. Lighting should be directed down at the ground and not horizontally or up in the air. 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 Eighth of August Two Thousand Six. August 8, 2006 - 38 - Item v,.K. 5. PLANNING ITEM # 55497 (Continued) Voting: 11-0 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M. Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None August 8, 2006 Item V-L.l. APPOINTMENTS - 39 - ITEM # 55498 BY CONSENSUS, City Council RESCHEDULED: BEACHES AND WATERWAYS COMMISSION BIKEWA YS AND TRAILS ADVISORY COMMITTEE BUILDING CODE OF APPEALS - New Construction BOARD OF ZONING APPEALS COMMUNITY MEDICAL ADVISORY COMMISSION COMMUNITY SERVICES BOARD DEVELOPMENT AUTHORITY EASTERN VIRGINIA HEALTH SYSTEMS AGENCY PARKS AND RECREATION PUBLIC LIBRARY BOARD REVIEW AND ALLOCATION COMMITTEE (COG) SOCIAL SERVICES BOARD SPORTS AUTHORITY OF HAMPTON ROADS August 8, 2006 - 40- Item V-O. ADJOURNMENT ITEM # 55499 Mayor Meyera E. Oberndorf DECLARED the City Council Meeting ADJOURNED at 6:48 P.M. (12~___~,_!j<!.~_ Beverly 0. Hooks, CMC Chief Deputy City Clerk ~~i;t:::1:~~ City Clerk Meyera E. Oberndorf Mayor City of Virginia Beach Virginia After ADJOURNMENT, Public Comments relative Non Agenda Items were heard and adjourned 7:50 P.M. August 8, 2006 - 41 - OPEN DIALOGUE Non Agenda Items Leona Schuler, 2448 Rose Hall Drive, Phone: 481-5371, President of Trantwood Lake Corporation, advised today was the first meeting with the City. Mrs. Schuler expressed concerns re the services of the Beaches and Waterways Commission no longer being required. Mrs. Schuler displayed a poster entitled Virginia Beach's "Little Dig" displaying employees of Public Works hand dredging a section of Lake Trant.. Margaret Armstrong, 2308 Mossy Hollow Place, Phone: 496-2774, accompanied by Juel Loughney, property owners on Lake Trant - Alignment G. A photograph displaying the Cove with dumped dredge material forming a sandbar was distributed and is hereby made a part of the record. It has been a year since the instance of illegal dumping. James A. MacDonald, 1269 Mossy Oaks Court, Phone: 481-0886, distributed information entitled "Lake Trant Dredging Project - Perspective of this resident ". Said information is hereby made a part of the record. Mr. MacDonald purchased his property thirty (30) years ago. Of the original 158 feet of waterfront, Mr. MacDonald has approximately 25 feet left at the start of the project last year. Charles Meyer, Chief Operating Officer, advised the City Council requested the Beaches and Waterways Commission evaluate the process and procedures re storm water improvement projects of this nature. The suggestion was made to the Chair of the Beaches and Waterways Commission to defer their review of Lake Trant until September in order for staff to complete their initial process. Public Works is removing material from the Lake for the purpose of increasing storm water management capacity. The City Attorney's office has contracted for outside engineering counsel to evaluate the performance of the contractor. A plan has been prepared by Public Works and submitted to the Virginia Department of Environmental Quality. Relative the poster distributed, the Public Works crew was picking up "jloatables ", debris that was dislodged in the dredged process and jloated into some of the inlets. Mark B. Gemender, Operations Engineer - Public Works, advised the design of the Lake Trant project was purely a Storm Water Best Management Plan (BMP) Maintenance Project. Lake Trant is a privately owned lake. Public Works, because of the strength of their design and methods used to determine completion, was able to get the Contractor remobilized within two (2) months. The Contractor returned to the site and re-dredged almost the entire lake. The contractor will again be remobilized to complete areas of further concern. The original cost of dredging was approximately $1-MILLION. $720,000 has been paid to the contractor. The City Manager, City Attorney, Public Works, Chair of the Beaches and Waterways Commission and a representative of Lake Trant shall meet and report to City Council by October relative a plan. August 8, 2006