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Home My WebLink AboutOCTOBER 9, 2007 MINUTES CITY OF VIRGINIA BEACH "COMMUNITY FOR A LIFETIME" CITY COUNCIL MAYOR MEYERA E. OBERNDORF, At-Large VICE MAYOR LOUIS R. JONES, Bayside - District 4 WILLIAM R. DeSTEPH, At-Large HARRY E. DIEZEL, Kempsville - District 2 ROBERT M. DYER" Centerville - District I BARBARA M. HENLEY, Princess 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 CITY ATTORNEY - LESLIE L. LILLEY CITY CLERK - RUTH HODGES FRASER, MMC 09 OCTOBER 2007 CITY HALL BUILDING 2401 COURTHOUSE DRIVE VIRGINIA BEACH, VIRGINIA 23456-8005 PHONE:(757) 385-4303 FAX (757) 385-5669 E-MAIL: Ctycncl@vbgov.com I. CITY MANAGER'S BRIEFINGS - Conference Room 3:00 PM A. SANDLER CENTER MANAGEMENT AGREEMENT Emily Spruill, Director - Cultural Affairs Patricia Phillips, Director - Finance B. CELL TOWERS William J. Whitney, Director - Planning Stephen J. White, Planning Evaluation Coordinator C. NOISE ORDINANCE Mark Stiles, Deputy City Attorney II CITY COUNCIL COMMENTS III AGENDA REVIEW IV INFORMAL SESSION - Conference Room 5:30 PM A. CALL TO ORDER - Mayor Meyera E. Oberndorf B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION V. FORMAL SESSION - Council Chamber - 6:00 PM A. CALL TO ORDER - Mayor Meyera E. Oberndorf B. INVOCATION: Reverend Thomas Powell Calvary Chapel of Virginia Beach 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 October 2, 2007 G. AGENDA FOR FORMAL SESSION H. PUBLIC HEARING 1. 15th STREET PIER - Proposed Franchise 1.. CONSENT AGENDA J. RESOLUTION/ORDINANCES 1. Resolution re an Operating Agreement for the Performing Arts to AUTHORIZE the City Manager to execute the necessary documents with the SANDLER CENTER 2. Resolution requesting Members of the City's local General Assembly Delegation sponsor and/or support legislation that will realize the goals and objectives set forth in Virginia Beach's 2008 Community Legislative Agenda [deferred September 11, 2007] 3. Ordinance to GRANT a FRANCHISE to ENTERTAINMENT, INC. for the use of City property at the Oceanfront and 15th Street re the operation of the Virginia Beach Fishing Pier. 4. Ordinance to AUTHORIZE the Commonwealth's Attorney to ACCEPT additional positions from the State Compensation Board; APPROPRIATE $327,330 in additional State revenue; and, TRANSFER $145,212 from the General Fund Reserve for Contingencies to their FY 2007-8 Operating Budget K. PLANNING 1. Variance to S 4.4(b) ofthe Subdivision Ordinance that requires all newly create ad lots meet the requirements of the City Zoning Ordinance (CZO) for PYONG TU CHO at 1212 North Inlynnview Road to subdivide the existing two lots and develop a new lot with a single family dwelling. (deferred indefinitely by City Council on January 9,2007 and August 14, 2007) DISTRICT 5 - L YNNHA VEN RECOMMENDATION DENIAL 2. Application ofCH&B ASSOCIATES, L.L.P. re a conceptual Site Plan addressing the site and building design elements consistent with the existing commercial designation at the Northeast corner of Princess Anne Road and South Plaza Trail in accordance with proffers previously approved by City Council on September 9, 2003. DISTRICT 2 - KEMPSVILLE RECOMMENDATION APPROV AL 3. Application of COLLEGE PARK, L.L.c. for a Modification of Proffers to cover the parking spaces with a "carport" and add a maintenance structure at 6226 Providence Road (approved by City Council on January 23,2007). DISTRICT 1 - CENTERVILLE RECOMMENDATION APPROVAL 4. Application of ST. MICHAEL LUTHERAN CHURCH for a Modification of Conditions to enclose the existing storage and picnic shelter at 2208 Princess Anne Road (approved by City Council on April 25, 1988). DISTRICT 7 - PRINCESS ANNE RECOMMENDATION APPROV AL 5. Application of VICTORIOUS LIVING CHURCH for a Conditional Use Permit re a church at 2180 McComas Way, Suite 113. DISTRICT 7 - PRINCESS ANNE RECOMMENDATION APPROVAL 6. Application of WILLIE DONALD MARTIN, JR. for a Conditional Use Permit re an auto repair garage at 1128 Barrs Road. DISTRICT 4 - BA YSIDE STAFF RECOMMENDATION: RECOMMENDATION INDEFINITE DEFERRAL APPROVAL 7. Application of RAPP AHANNOCK SPORTS, L.L.C. for a Conditional Use Permit re an indoor recreation facility at the Southeast intersection of Holland Road and Warwick Drive. DISTRICT 6 - BEACH RECOMMENDATION APPROV AL 8. Application of CINGULAR WIRELESS for a Conditional Use Permit re a communication tower, antennas and equipment building at 4021 Charity Neck Road. DISTRICT 7 - PRINCESS ANNE RECOMMENDATION APPROV AL 9. Application of GREG SMITH for a Conditional Use Permit re a home occupation (making and selling glass head pendants in the garage) at 594 Van Buren Court. DISTRICT 3 - ROSE HALL RECOMMENDATION APPROV AL 10. Application of MATHEWS GREEN ASSOCIATES, L.L.C. for a Change of Zoning District Classification from R-20 Residential District with a PD-H2 Overlay to P-l Preservation District at 2217 Mathews Green. [Conditional Zoning approved with Proffers August 22, 2006] DISTRICT 7 - PRINCESS ANNE. RECOMMENDATION APPROV AL 11. Application of KOTARIDES DEVELOPERS for a Change of Zoning District Classification from B-2 Community Business District to Conditional A-24 Apartment District re rental apartments within twelve buildings at 920 South Military Highway. DISTRICT 1 - CENTERVILLE RECOMMENDATION APPROVAL L. APPOINTMENTS WORKFORCE HOUSING ADVISORY BOARD M. UNFINISHED BUSINESS N. NEW BUSINESS O. ADJOURNMENT CITYWIDE TOWN MEETINGS Octoher 16,2007 Virginia Beach Convention Center - 7:15 pm FY 2008-2010 Budget Location to he Announced -7:15 pm Swrmwa~rPfflnsandFundmg January 15, 2008 CITY COUNCIL's WORKSHOP 16 OCTOBER 2007 CANCELLED [IN LIEU OF THE CITY-WIDE TOWN MEETING] ********* If you are physically disahled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 385-4303 ********** Agenda 1O/09/07/gw www.vbl!ov.com - 1 - MINUTES VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia October 9, 2007 Mayor Oberndorf called to order the CITY MANAGER'S BRIEFING Fe SANDLER CENTER MANAGEMENT AGREEMENT in the City Council Conference Room, City Hall, on Tuesday, October 9, 2007, at 3:00 P.M Council Members Present: William R. "Bill" DeSteph, 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: Harry E. Diezel [Entered: 5:28 P.M Delayed in meeting] October 9, 2007 - 2 - CITY MANA GER'S BRIEFING SANDLER CENTER MANAGEMENT AGREEMENT 3:00 P.M. ITEM # 56912 Dorothy L. Wood, Vice Chair, Sandler Center for the Peiforming Arts Foundation and Chair - Citizens Committee, she was advised also representing the Chair of the Foundation - Linwood 0. Branch, III Ms. Wood was proud to work with Mr. Branch over the past few years. Mrs. Wood expressed appreciation for having a small part in the "birth" of the Sandler Center. Art and Steve Sandler not only provided the $5-MILLION to commence the project but have assisted in securing many of the contributions. Emily Spruill, Project Director - Sandler Center for the Performing Arts Theatre, provided the status report. Project Status Achievements: Received over $14. O-MILLION in cash & pledges Current fundraising to build endowment for education and performances Strong subscription and ticket sales Upcoming Events: November - Grand Opening Month Dedication Ceremony - November 1, 2007 at 10:30 a.m. Opening Night with Itzhak Perlman - November 3, 2007 at 7:30 p.m. Construction is 99% complete. The staff moved into the building and the box office should open next week. They are currently installing theatrical/acoustical drapes and curtains. Touches to woodwork and metal rails are beingfinished. Request For Proposal (RFP) Selection process . Selection Committee made up of volunteers from the Theatre Advisory Committee, Virginia Beach Peiforming Arts Center Foundation and City Staff · RFP Issued on April 4, 2005 · Interviewed those making proposes Involved local arts organizations . Established criteria by which City will preserve booking priorities for local arts groups . In August 2006, City Council was briefed on Committee recommendations and entered into the Pre- Opening Services Agreement with Global Spectrum Global also operates the Ted Constant Center for Old Dominion University. Ms. Spruill outlined the Booking Policy: . Purpose: to maintain maximum utilization and to provide fair and equitable availability · First Priority: 1. In-house productions for maximum revenue potential 2. Resident organizations 3. Great Performers Series · Second Priority: 1. Established Regional Arts Groups and Former Tenants of Pavilion Theatre · Third Priority: 1. Community Organizations and Events October 9, 2007 - 3 - CITY MANA GER'S BRIE FING SANDLER CENTER MANAGEMENT AGREEMENT ITEM # 56912 (Continued) Global Spectrum selected: . Extensive facility management experience . Extensive booking experience - established contacts Does not add numerous, permanent City staff . Corporate competitive advantage - numerous facilities for multiple bookings Extensive facility management experience · Established software systems Ms. Spruill introduced Doug Higgons, Regional Vice President - Global Spectrum. Mr. Higgons referenced Global Spectrum is a subsidiary ofComcast-Spectacor . Comcast-Spectacor owns Wachovia Center and Spectrum NHL Phildelphia Flyers NBA Philadelphia 76ers AHL Philadelphia Phantoms ***2005 Calder Cup Champions Flyers Skate Zone Comcast SportsNet Ovations Food Services New Era Tickets October 9, 2007 -4- CITY MANAGER'S BRIEFING SANDLER CENTER MANAGEMENT AGREEMENT ITEM # 56912 (Continued) Mr. Higgons stipulated the Theatrical Experience and Global has the best relationships in the industry. Seven (7) Global Spectrum managed facilities present theatrical events on a regular basis: FARGODOME -Gate City Bank Theatre (4,200 seats) John Labatt Centre -RBC Theatre (2,800 seats) Old Dominion University Ted Constant Convocation Center/Theatre - theatrical set-up (4,000 seats) Portland Rose Quarter -Theatre of the Clouds (6,300 seats) Sovereign Bank Arena - theatrical set-up (3,500 seats) Temple University Liacouras Center -Ester Boyer Theatre (1,960 seats) University of Massachusetts Mullins Center - theatrical set-up (4,000 seats) Global Spectrum will be the contracting entity with the City of Virginia Beach. The Virginia Arts Festival will be a sub-contactor of Global Spectrum. The Virginia Arts Festival will take the leading role in the programming and marketing of the Grand Opening and the creation of an annual series featuring nationally recognized artists. Global Spectrum will take the leading role in the day-to-day operation of the building. Rob Cross, Executive Director - Virginia Arts Festival, was unable to attend. Virginia Arts Festival was founded and incorporated in December 1995. The first full season was in the Spring of 1997. Mr. Higgons stated the Virginia Arts Festival's Mission: Present the world'sfinest performing artists in cities throughout Southeastern Virginia Enrich the lives of Hampton Roads children through the arts Promote the Hampton Roads region as a rising cultural destination throughout the Mid-Atlantic in order to generate cultural tourism and its resulting positive economic impact on the area Mr. Higgons referenced the excitement of the Inaugural Season and the Grand Opening Events (Itzhak Perlman, Tony Bennett, Bonnie Raitt, Pat Metheny, Virginia Symphony). To date, approximately 8,000 tickets have been sold. Global has reachedfifty percent (50%) of their budgeted goal for these events. Patricia Phillips, Director of Finance, reviewed the contracts with Global Spectrum, L.P. Pre-Opening Services Performed Through October 2007 . Reviewed facility design & construction ~ Hardware schedules, interior finish schedules, graphics and signage, recommend FF &E, coordinate transitions from construction project to operating facility . Fine tuned operating pro-formas . Developed operating & maintenance manual . Booked & scheduled events (as outlined in Booking Policy) . Developed reporting system & accounting systems . Developed marketing plan & advertising campaign . Planned Grand Opening events · Hired staff October 9, 2007 - 5 - CITY MANA GER'S BRIEFING SANDLER CENTER MANAGEMENT AGREEMENT ITEM # 56912 (Continued) Pre-Opening Services Management Fee: (April 2006 - October 2007) totaled: $111,000 Mrs. Phillips extended appreciation to the City Attorney, Leslie L. Lilley, and Aimee Knapp, Associate City Attorney, for their dedicated efforts concerning this contract. Mrs. Phillips itemized the Management Contract and the "Day-to-Day" Administrative responsibilities. . Promote, operate and manage all aspects of Sandler Center . Book and schedule events (as outlined in Booking Policy) . Provide day-to-day administrative services . Execute marketing plan, advertising campaign and materials . Maintain ongoing community relations and exposure Maintain detailed, accurate financial and other records Submit monthly reports to City · Manage & operate concessions · Ticket sales (held in trust) . Comcast-Spectacor guarantees Global Spectrum's performance . Employ, supervise and direct all of Global Spectrum employees · Manage procurement Purchasing · Payroll · Fire prevention Security and crowd control · Traffic management · Parking management and coordination Routine repairs · Preventative maintenance · Janitorial and housekeeping services Energy conservation · Admission procedures . Accommodate the needs of the mobility impaired and handicapped patrons Ticket Sales Non-Resident Organizations Ticket sales held in trust until settlement after each event Protects ticket buyers · Protects City Ticket Sales Resident Organizations · Ticket sales will be held by Resident Organizations · Symphonicity (Virginia Beach Symphony) · Virginia Arts Festival · Virginia Beach Chorale · Virginia Beach Forum · Virginia Musical Theatre · Virginia Symphony This enables these long-standing groups to operate, pay employees, etc. CITY MANAGER'S BRIEFING October 9, 2007 - 6- CITY MANA GER'S BRIEFING SANDLER CENTER MANAGEMENT AGREEMENT ITEM # 56912 (Continued) City's Rights and Responsibilities 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 TOTAL ESTIMATED COSTS ~~J_~~~fJ~j~f r Ml~_~~ Pre-Opening Contract and Management Contract Costs Net Revenue N/A $ 717,366 $ 767,581 Management Fee. $ 87,000 $ 152,000.. $ 197,760 Estimated Incentive Fee N/A $ 48,651 $ 31,570 Total Operating $ 212,944 $ 1,796,720.** $1,719,009 Expenses Operating Loss $ 299,944 $ 1,280,005 $1,180,758 $ 790,609 $ 203,693 $ 32,517 $ 1,758,579 $1,204,180 * Adjusted annually applying consumer price index. ** Includes both pre-opening and operating management fees. *** Includes both pre-opening and operating expenses. Capital reserves may be necessary. October 9, 2007 - 7 - CITY MANA GER'S BRIEFING SANDLER CENTER MANAGEMENT AGREEMENT ITEM # 56912 (Continued) ESTIMATED INCENTIVE FEE* FY09: 1st Full Operating Year 12% of F&B Revenue over $100,000 12% of ValellParking Revenue 12% of Reimbursed Expenses/Markup 12% of Box Office Rebate Revenue 12% of Gross Sponsorship over $100,000 $ 12,521 $ 4,036 $ 635 $ 2,287 $ 5,911 $ 6180 $ 31,570 12% of Combined Rental Revenue over $250,000 * Incentive fee is contingent on Global Spectrum achieving in each operating year the aggregate budgeted revenue from the operating revenue categories on which the incentive fee is calculated. In addition to rental income and ticket sales, Sandler Center will generate the following additional revenue streams to the General Fund: City Admission Tax (10%) City Facility Fee * 150,440 $160,971 $ 165,800 Total $339,385 $ 363,143 $ 374,037 *$1-$2 included in ticket price *Request has been submitted to Commonwealth of Virginia for $300,000 to offset operations Coming Attractions . October 9,2007: City Council approves Operating Agreement and authorizes the City Manager to execute Operating Agreement . November 1, 2007 at 10:30 a.m.: Dedication Ceremony November 3,2007 at 7:30 p.m.: Opening Night with Itzhak Perlman www.sandlercenter.org October 9, 2007 - 8 - CITY MANA GER'S BRIEFING SANDLER CENTER MANAGEMENT AGREEMENT ITEM # 56912 (Continued) Mr. Higgons advised there is no charge for parking; however, Valet Service will be available. Ms. Spruill advised the Sandler Center for the Performing Arts will have 148 performance days The City Manager advised the City has requested $300,000 in funding from the State. Information re funding provided to the Chrysler Museum shall be provided. October 9, 2007 - 9 - CITY MANA GER'S BRIEFING CELL TOWERS ITEM # 56913 3:44 P.M. Jack Whitney, Director - Planning, advised cell phones have changed the way people work and live, as well as the landscape. To ensure the operation of the cell phones requires a fairly extensive infrastructure (towers, antennas and related equipment.). Currently there are one hundred thirty-eight (138) active cell towers, with five (5) more under consideration. These towers require a Conditional Use Permit. Mr. Whitney advised members of the cell phone industry are also in attendance to respond to City Council inquiries Stephen J White, Planning Evaluation Coordinator, itemized thefour (4) main points: · CITY REGULATION What do we require? What are the criteriafor evaluation? LOCATIONS APPLICATION INCREASE Demand Funding 911 . ALTERNATIVES / STEALTH LOCATIONS/STEALTH City Regulation . Section 232 of the City Zoning Ordinance provides the standards to be used in evaluating Use Permit applications for communication towers. . Federal Telecommunications Act of 1996 places limitations on what the City can consider in determining whether to approve a Use Permit for a tower. City Regulation of Towers An Application must include: Site plan drawn to scale with details of tower, buildings, fencing and landscaping Report from a registered structural or civil engineer as to the tower construction Statement from a registered engineer that the NIER (nonionizing electromagnetic radiation) does not exceed the lowest exposure standard established by the federal government. Satisfactory evidence from the applicant of the lack of space on suitable existing towers, buildings, or other structures October 9, 2007 - 10- CITY MANA GER'S BRIEFING CELL TOWERS ITEM # 56913 (Continued) · Requirements: Side and rear yard setback are 50 feet in Residential and Agricultural Districts and 25 feet in all other Zoning Districts No tower may be located closer to an existing residential structure than the distance equal to one hundred twenty-five (125) percent of the total height of the tower and all antennae Towers must be painted and illuminated in accordance with FAA regulations Landscape plantings must be provided, with the type, size and location dependent on the type and height of tower Mr. White displayed an example of a map re a cell tower, which had been proposed, but not approved. These maps are required to assure there is a need for a tower in a certain location. Mr. White displayed a map of Existing Towers. The "blue" dots indicated proposed tower applications. Concerning co-locations, Mr. White displayed a very large map by COMIT (Communications and Information Technology). This map also contains the water towers within the City, some of which have antennas. Eighty (80%) to ninety percent (90%) are co-located. Monopoles are utilized for a specific user (filling in a gap) i.e the Little Neck Swim and Racquet Club monopole. All of the City water towers do not currently have cell phone antennas. Councilman DeSteph believes because of the height of the water towers, utilization of these towers for cell phones would eliminate other cell phone towers. Mr. White advised concerns of the Director - Public Utilities, re maintenance and security issues. Concerning cell phone towers resembling trees, he advised the majority of the trees in the City are up to 80 feet tall. These towers, made to look like trees, are almost 200 feet tall. Thus, with the City's flat topography, the "cell tower trees" will be very much taller than all the other trees. October 9, 2007 - 11 - CITY MANA GER'S BRIEFING CELL TOWERS ITEM # 56913 (Continued) Councilman DeSteph referenced correspondence from Glen Knutson, which is hereby made a part of the record. Mr. Knutson stated co-location should be practically mandatory with it being cheaper for them to build towers than lease space. Said letter is hereby made a part of the record. Mr. White advised a cell phone provder submitting an application has always expressed preference to a location enabling lease of space. Building a tower is very expensive. Mr. White will review co-location of police towers. COMIT is concerned with frequencies utilized interfering with 911 and emergency communications. Council Lady Henley referenced the City's tower on Pleasant Ridge Road is much taller, very unsightly and extremely visible. Max Bartholomew, Dominion Virginia Power, advised his willingness to work with the City re utilization of their large new transmission line in the Southern portion of the City. Their telecommunications division could be the contact. There is much capability within these transmission lines and substations to cite these facilities. Mr. White displayed a map re Future towers? (AT & T Wireless Network) Primary Tower Construction Firms · Crown Castle International: www.crowncastle.com · SBA - Site Locator: htto://mao.sbasite.com . American Tower - Site Locator: www.americantower.comlOasisPublic/Maoooint/default.aso Increase in Applications Steadily increasing number of users and more minutes per user . New equipment to utilize radio spectrum acquired at most recent FCC auction . Increased demandfor video and services that require high bandwidth (iPhone / AT&T) . New emphasis on the residential customer ("The Last Frontier') . Increase infunding (industry recovering from the "Tech Crash" at the end of the 1990s) Wireless 911 . Over 70% of the population has a cell phone. Wireless providers are required to ensure cell phones can reach emergency services using 911. to June 2007) WIRELESS 911 'BB TOTAL 9,550 2,120 69,666 WIRE LINE 911 7,430 6,327 7,622 7,521 8,110 8,640 5,650 *Usually, more than one (1) call per incident is reported via wireless -for example, a traffic accident can result in more than one (1) call. October 9, 2007 - 12 - CITY MANA GER'S BRIEFING CELL TOWERS ITEM # 56913 (Continued) Mr. White displayed photographic examples of "Stealth" Alternatives. Water Towers The City was one of the first to use municipal water towers for the location of cell antennas. There have, however, been issues pertaining to maintenance of the antennas and security of our towers. As a result, we are now discouraging providers from considering the water towers. . Public Utilities is currently drafting a policy regarding the use of the towers for cell antennas. Water towers are not a preferred solution. Mayor Oberndorf advised Public Utilities is reviewing this problem re utilization of water towers with the Water Task Force. Attorney Leslie Murphy represented AT and T, and advised there are three (3) active sites originally planned for water tanks: Witchduck, Shore Drive, and Sandbridge Water Tank.. The Bay Colony Water Tank is shorter than many of the Water Tanks and has been off limits for a while. The Water Tank on Great Neck does not have any antennas. Each carrier requires at least a 12 x 20 space on the ground to place equipment that operate the antennas on top. Therefore, quite a bit of ground space must be utilized. The following Planning Item will be DEFERRED forty-five days, until the City Council Session of November 27, 2007, to allow Water Tower Policy Briefing by Public Utilities K.8 Application ofCINGULAR WIRELESSfor a Conditional Use Permit re a communication tower, antennas and equipment building at 4021 Charity Neck Road. DISTRICT 7 - PRINCESS ANNE Mr. White advised re the tall white poles in the City's parks, a couple of cell phone providers have approached the City re the possibility of locating on these poles. The Department of Parks and Recreation had indicated they were not interested. Mr. White believes this might also be a security issue. The City Manager believes the Cell Tower Policy is pushing co-location to the maximum extent possible and was surprised City departments were not co-operating. October 9, 2007 - 13 - CITY MANAGER'S BRIEFING NOISE ORDINANCE 4:48 P.M. ITEM # 56914 Associate City Attorney Mark Stiles advised the purpose of the presentation is to provide an ordinance revising the noise regulations in the City. The City has had a Noise Ordinance since the early 1980 'so Existing Ordinance . Section 23-47 . Objective or "reasonable man" standard . Utilized extensively throughout Virginia, in mostly smaller and more rural jurisdictions . Has been sustained against numerous court challenges, but challenges continue . Difficult to enforce because there are no specific factors defining violation Deputy City Attorney Mark Stiles advised the proposed ordinance is based on a model ordinance prepared by the International Municipal Lawyers Association (IMLA) with certain changes made to address unique characteristics of Virginia Beach. Changes are intended to retain "reasonable man" standard while providing additional information to citizens, law enforcement and the courts to aid in compliance, enforcement and conviction decisions Decibel Meters . Proposed ordinance does not include decibel limits as a standard for determining violations . Most citizens do not have decibel meters and would not know when their conduct violated the ordinance . Police department does not favor use of decibel meters . Decibel meters cannot readily differentiate between sound sources, leading to enforcement difficulty . Costs: purchase of decibel meters, ongoing calibration for use in court, ongoing training and certification of officers . Decibel limit ordinances also have been susceptible to attack in the courts There are two (2) separate provisions in the Proposed Noise Control Standards (General Prohibition utilizing reasonable man standard (* 23-67) and Specific Prohibitions (* 23-68) Proposed Section 23-67 (General Prohibition) (a) No person shall intentionally make, continue, or cause or allow to be made or continued any unreasonably loud or raucous noise or any noise that unreasonably disturbs, injures or endangers the comfort, repose, health, peace or safety of reasonable persons of ordinary sensitivity. (b) Factors for determining whether a person has violated subsection (a) include, without limitation: (1) The proximity of the noise to sleepingfacilities, whether residential or commercial (2) The predominate land use of the area from which the noise emanates and of the area where it is audible (3) The time of day or night during which the noise occurs (4) The duration of the noise (5) Whether the noise is recurrent, intermittent or constant. October 9, 2007 - 14- C IT Y MANA G E R <S B R IE FIN G NOISE ORDINANCE ITEM # 56914 (Continued) Changes from Existing Ordinance . Discontinues use of the term "unnecessary noise, " which is difficult to objectively define and has been successfully challenged in other courts . Includes new subsection (b), which identifies specific factors for law enforcement and the courts to consider when evaluating potentially unreasonable noise . Factors: proximity to sleeping areas, predominate land use where noise is created and audible, time of day, duration Citations could be written under either & 23-67 or & 23-68, but we would expect that the General Prohibition of & 23-67 would be used primarily in clear cases of loud and raucous noise resulting in citizen complaints for which no specific category of & 23-68 applied Penalty . A first offense under this ordinance would be Class 3 Misdemeanor punishable by a fine of up to $500 . A second or subsequent offense within one year would be a Class 2 Misdemeanor punishable by a fine of up to $1,000 and/or a jail term of up to six months . In addition, the City may seek an injunction against continuing violations of the ordinance October 9, 2007 - 15 - C IT Y MANA G E R 'S B R IE FIN G NOISE ORDINANCE ITEM # 56914 (Continued) The Oceanfront has different zonings, a mix of commercial and residential. Councilman Villanueva believes the ordinance should be crafted towards specific zoning areas. Councilman Villanueva requested information re the particular areas, i.e. the Oceanfront, concerning statistics re the noise ordinance and where the majority of tickets are issued in violation. Councilman Villanueva referenced the noise issue re Hunt Club Forrest Halloween Celebration. Deputy Chief James A. Cervera, will research and provide the data for City Council's review. However, the Resort Area does contribute to many of the noise issues, particularly in the Summer months. Deputy City Attorney Stiles advised typically decibel meter restrictions are based on zoning. Where there is a mix of uses within a zoning classification, such as the Resort Area (residential and commercial together), makes the preciseness of the decibel meter limits difficult. Council Lady Henley advised the decibel meter also has a "down side". What is noise to someone, may be pleasing to another. Noise has a spill over effect and is not confined to the property on which it occurs. Council Lady Henley referenced fireworks on private property in the rural area. Councilman Uhrin does not recommend the decibel level. Councilman Uhrin advisedfour (4) of the parks providing entertainment at the Resort Area limited to certain hours of operation and does not exceed the 11:00 P.M closing. There may be other opportunities the staff may review in the Specific Prohibitions (~ 23-68) which could actually identify additional issues. Council Lady McClanan advised much residential development is being placed in areas where this residential did not previously exist. Noise problems are resulting from bars nearby and disturbing sleep. October 9, 2007 - 16 - CITY COUNCIL COMMENTS 5:28 P.M. ITEM # 56915 Councilman DeSteph complimented the news article in "The Virginian-Pilot", this morning, October 9, 2007, quoting The Honorable Calvin Coolidge: "Collecting more taxes than absolutely necessary is legalized robbery". ITEM # 56916 Councilman Villanueva referenced the significant economic development announcement in the Princess Anne Commons area re Operation Smile. The announcement will be on Thursday, October 11, at 1:30 P.M., in the Advanced Technology Center's Tech Theater, Room 265. ITEM # 56917 Council Members DeSteph and Wood, Liaisons to The Virginia Aquarium and Marine Science Center, referenced the renovations. A more detailed report will be provided later. The Sting Ray Aquarium has been relocated. The restrooms have been reopened as well as the new gift shop. There are two (2) cobras, three (3) Komodo Dragons and two (2) alligators. The most important aspect is the Capital Campaign, and the challenge grant by Michigan based Kresge Foundation. The Kresge Foundation issued the $650,000 challenge to help the Aquarium's Foundation complete its $27.3-MILION Capital Campaign begun in 2004. ITEM # 56918 Council Lady Wilson advised Friday morning, October 5, 2007, Councilman Barclay C. Winn called and inquired if Virginia Beach would work with the City of Norfolk concerning non-smoking in Virginia Beach's restaurants as proposed in Norfolk.. Council Lady Wilson advised support of the Virginia Beach Restaurant Association and the Resort Advisory Commission. Council Lady Wilson advised of the Virginia Code change request - Smoke-Free Restaurants contained in the City's 2008 Community Legislative Agenda. Virginia Beach's City Charter will not allow this limitation as it is currently written. Council Lady Wilson advised Mr. Winn that perhaps the City's Legislative Delegation could work with Norfolk's Delegation to help accomplish this goal. An Affirmation Resolution shall be SCHEDULED for the City Council Session of October 23, 2007. Mayor Oberndorf advised the Norfolk restaurant owners do not wish the non-smoking ban adopted, as they perceive their customers will go to another City to have their meals where smoking is allowed.. ITEM # 56919 Mayor Oberndorf referenced the success of Norfolk's light rail funding. Mayor Oberndorf suggested light rail be considered as a topic of discussion for City Council's Retreat (November 3 and 4, 2007). October 9, 2007 - 17 - AGE N DA REV IE W S E S S ION 5:35 P.M. ITEM # 56920 BY CONSENSUS, the following items shall compose the CONSENT AGENDA: J. RESOLUTION/ORDINANCES 1. Resolution re an Operating Agreementfor the Performing Arts to AUTHORIZE the City Manager to execute the necessary documents with the SANDLER CENTER 2. Resolution requesting Members of the City's local General Assembly Delegation sponsor and/or support legislation that will realize the goals and objectives set forth in Virginia Beach's 2008 Community Legislative Agenda, including amendments to the City c."z6H"wr [deferred September 11, 2007J 3. Ordinance to GRANT a FRANCHISE to ENTERTAINMENT, INC. for the use of City property at the Oceanfront and 15th Street re the operation of the Virginia Beach Fishing Pier. 4. Ordinance to AUTHORIZE the Commonwealth's Attorney to ACCEPT additional positions from the State Compensation Board; APPROPRIATE $327,330 in additional State revenue; and, TRANSFER $145,212from the General Fund Reservefor Contingencies to their FY 2007-8 Operating Budget Council Members DeSteph and McClanan shall vote a VERBAL NAY on Item 2 (2008 Community Legislative Agenda) Council Lady Wilson shall ABSTAIN on Item J.3. (Virginia Beach Fishing Pier), pursuant to Section 2.2-3115 (E), Code of Virginia. Entertainment, Inc. is a client of Goodman and Company, an accounting firm. Her husband is a principal in the firm and personally provides accounting services to Entertainment, Inc. October 9, 2007 - 18 - AGE N DA REV IE W S E S S ION ITEM # 56921 BY CONSENSUS, the following shall compose the PLANNING BY CONSENT AGENDA: K. PLANNING 2. Application ofCH&B ASSOCIATES, L.L.P. re a conceptual Site Plan addressing the site and building design elements consistent with the existing commercial designation at the Northeast corner of Princess Anne Road and South Plaza Trail in accordance with proffers previously approved by City Council on September 9, 2003. DISTRICT 2 - KEMPSVILLE 3. Application of COLLEGE PARK, L.L. C. for a Modification of Proffers to cover the parking spaces with a "carport" and add a maintenance structure at 6226 Providence Road (approved by City Council on January 23, 2007). DISTRICT 1 - CENTERVILLE 4. Application of ST. MICHAEL LUTHERAN CHURCH for a Modification of Conditions to enclose the existing storage and picnic shelter at 2208 Princess Anne Road (approved by City Council on April 25, 1988). DISTRICT 7 - PRINCESS ANNE 5. Application of VICTORIOUS LIVING CHURCH for a Conditional Use Permit re a church at 2180 McComas Way, Suite 113. DISTRICT 7 - PRINCESS ANNE 7. Application of RAPPAHANNOCK SPORTS, L.L.C.for a Conditional Use Permit re an indoor recreation facility at the Southeast intersection of Holland Road and Warwick Drive. DISTRICT 6 - BEACH 8. Application of CINGULAR WIRELESS for a Conditional Use Permit re a communication tower, antennas and equipment building at 4021 Charity Neck Road. DISTRICT 7 - PRINCESS ANNE 9. Application of GREG SMITH for a Conditional Use Permit re a home occupation (making and selling glass bead pendants in the garage) at 594 Van Buren Court. DISTRICT 3 - ROSE HALL 11, Application of KOTARIDES DEVELOPERSfor a Change of Zoning District Classification from B-2 Community Business District to Conditional A-24 Apartment District re rental apartments within twelve buildings at 920 South Military Highway. DISTRICT 1 - CENTERVILLE Council Lady Henley shall vote a VERBAL NAY on Item K.2 (CH& B ASSOCIATES, L.L.P) Item K.8 (CINGULAR WIRELESS) was DEFERRED, BY CONSENT, forty-five (45) days to November 27, 2007. Item K. 7 (RAPPAHANNOCK SPORTS, L.L.C.) shall be DEFERRED INDEFINITELY, BY CONSENT Council Lady McClanan shall vote a VERBAL NAY on Item Kll (KOTARIDES DEVELOPERS) October 9, 2007 - 19 - FORMAL SESSION VIRGINIA BEACH CITY COUNCIL October 9, 2007 6:10 P.M. Mayor Meyera E. Oberndorf called to order the FORMAL SESSION of the VIRGINIA BEACH CITY COUNCIL in the Council Chamber, City Hall Building, on Tuesday, October 9, 2007, at 6:10 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. OberndorJ, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Absent: None INVOCATION: Reverend Thomas Powell Calvary Chapel of Virginia Beach PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA Vice Mayor Jones DISCLOSED, for many years, he served on the Board of Directors of Resource Bank. Three (3) years ago, Fulton Financial Corporation ("Fulton Financial '') purchased Resource Bank. On March 31, 2007, Vice Mayor Jones retired from the Board of Directors. Although, he is no longer a Board Member, he owns stock in Fulton Financial, and that stock ownership causes him to have a "personal interest" in Fulton Financial. However, due to the size of Fulton Financial and the volume of transactions it handles in any given year, Fulton Financial, or any of the banks that are owned by Fulton Financial, may have an interest in numerous matters in which Vice Mayor Jones has no personal knowledge. In order to ensure his compliance with both the letter and the spirit of the State and Local Government Conflict of Interests Act, it is his practice to thoroughly review the agenda for each meeting of City Council for the purpose of identifYing any matters in which he might have an actual or potential conflict. If, during his review, he identifies any matters, Vice Mayor Jones will prepare and file the appropriate disclosure letter to be recorded in the official records of City Council. Vice Mayor Jones regularly makes this disclosure. Vice Mayor Jones' letter of April 10, 2007, is hereby made a part of the record. 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. October 9, 2007 - 20- FORMAL SESSION VIRGINIA BEACH CITY COUNCIL (Continued) 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. October 9, 2007 - 21 - Item V-E. CERTIFICATION OF CLOSED SESSION ITEM # 56922 The City Council did not conduct a CLOSED SESSION October 9, 2007 - 22- Item V-F.1. MINUTES ITEM # 56923 Upon motion by Councilman Wood, seconded by Council Lady Wilson, City Council APPROVED the Minutes of the INFORMAL and FORMAL SESSIONS of October 2, 2007. Voting: 10-0 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, 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: Robert M Dyer Council Members Absent: None Councilman Dyer ABSTAINED, as he was ill and not in attendance during the City Council Session of October 2, 2007. October 9, 2007 - 23 - Item V-G 1. ADOPT AGENDA FOR FORMAL SESSION ITEM 56924 BY CONSENSUS, City Council ADOPTED: AGENDA FOR THE FORMAL SESSION October 9, 2007 - 24- Item V-G 2. MAYOR'S PRESENTATION ITEM 56925 Mayor Oberndorfrecognized the following Boy Scouts in attendance tofulfill requirementsfor their Communication and Citizenship in the Community merit badges: Troop 587 All Saints Episcopal Church Rick Maynard Scout Master Charlie Roberts Chris Sleg J. C. Stant Michael DeSteph Mayor Oberndorf presented the Scouts with City Seal pins October 9, 2007 - 25 - Item V-H. PUBLIC HEARING ITEM 56926 Mayor Oberndorf DECLARED A PUBLIC HEARING: 15TH STREET PIER - Proposed Franchise There being no speakers, Mayor OberndorfCLOSED THE PUBLIC HEARING October 9, 2007 - 26- Item v.J. RESOLUTION/ORDINANCES ITEM #56927 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council APPROVED IN ONE MOTION Resolution/Ordinances 1, 2, 3 and 4 of the 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 Council Members McClanan and DeSteph voted a VERBAL NAY on Item 2 (2008 Community Legislative Agenda) Council Lady Wilson ABSTAINED on Item J.3. (Virginia Beach Fishing Pier), pursuant to Section 2.2- 3115 (E), Code of Virginia. Entertainment, Inc. is a client of Goodman and Company, an accounting firm. Her husband is a principal in the firm and personally provides accounting services to Entertainment, Inc. October 9, 2007 - 27- Item V-J.1. RESOLUTION/ORDINANCES ITEM #56928 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED: Resolution re an Operating Agreement for the Performing Arts to AUTHORIZE the City Manager to execute the necessary documents with the SANDLER 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 October 9, 2007 1 A RESOLUTION APPROVING AN OPERATING 2 AGREEMENT FOR THE SANDLER CENTER FOR THE 3 PERFORMING ARTS AND AUTHORIZING THE CITY 4 MANAGER TO EXECUTE THE AGREEMENT ON BEHALF 5 OF THE CITY 6 7 WHEREAS, the Sandler Center for the Performing Arts ("SCPA"), a 1200 seat 8 performance hall located in Town Center, is scheduled to open in November 2007; 9 1 0 WHEREAS, following the City's issuance of a request for proposals, a selection 11 committee presented its recommendation to the City Council that the City contract with 12 Global Spectrum, L.P. ("Global") for the operation, programming and maintenance of 13 the SCPA; 14 15 WHEREAS, the City Council agreed with the recommendation of the selection 16 committee and authorized the City Manager to execute a pre-opening services 17 agreement with Global for the operation, programming and maintenance of the SCPA 18 on August 8, 2006; and 19 20 WHEREAS, City staff has worked diligently with Global throughout the last year 21 to negotiate an operating agreement for the promotion, operation, and management of 22 the SCPA when it opens in November 2007; and 23 24 WHEREAS, the City and Global have agreed to the terms of a proposed 25 operating agreement for the SCPA. 26 27 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 28 VIRGINIA BEACH, VIRGINIA THAT: 29 30 The Operating Agreement presented to the City Council and on file with the City 31 Clerk is approved and the City Manager is authorized to execute same on behalf of the 32 City of Virginia Beach. 33 34 Adopted by the City Council of the City of Virginia Beach, Virginia on this .9J:h_ 35 day of October, 2007. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: ~ Office of Itu a Arts A. Il-,~ 0111 v-- City Attorney' Office CA10512 September 28, 2007 R2 SUMMARY OF TERMS Operating Agreement for the Sandler Center for the Performing Arts at Virginia Beach Parties: City and Global Spectrum, L.P., a Delaware limited partnership ("Global") Purpose: Global has been selected to promote, manage and operate the Sandler Center for the Performing Arts ("SCP A"). Term: 3 years; may be renewed for 2 additional I-year periods Services to be provided by Global pursuant to the Operating Agreement: · Promote, operate and manage the SCP A. . Manage the SCP A in accordance with the operations manual, to include purchasing, payroll, ticketing, fire prevention, security, crowd control, traffic management, parking management and coordination, routing repairs, preventative maintenance, janitorial and housekeeping services, energy conservation, admission procedures, and general user services. . Procure, negotiate and execute, in its own name and its capacity as manager, all licenses, agreements, and contracts, and deliver and administer those documents. . Maintain the SCP A and all fixtures, equipment, systems and materials in the SCP A. · Book and schedule events (as outlined in the City's booking policy). · Provide day-to-day administrative services. · Employ, supervise and direct all ofSCPA's employees. · Maintain reporting system and accounting systems. · Execute marketing plan, advertising campaign and materials. · Maintain ongoing community relations and exposure. Cost: Fixed Fee: $16,000 per month during initial operating year. (Thereafter, adjusted annually applying consumer price index.) Incentive Fee: For each operating year, incentive fee may be paid equal to 12% of the following operating revenues: 1. Rental Income - theater and rehearsal studio in excess of $250,000; 2. Net food and beverage sales income in excess of$100,000; 3. Net valet parking revenue; 4. Global's mark-up on expenses reimbursed by users/promoters; 5. Box office rebate revenue; and 6. Advertising sales and sponsorship income in excess of $100,000. * Incentive fee is contingent on Global achieving in each operating year the aggregate budgeted revenue from the operating revenue categories on which the incentive fee is calculated. Other Terms: . City retains ownership of SCP A at all times. City Contract Administrator has the right to enter the facility to inspect at any time. . Global shall provide an Annual Plan to the City for each operating year. Annual Plan consists of marketing plan, market research, marketing objectives and strategies, booking priorities, targeted events, and advertising opportunities. . Global shall provide an annual Operating Budget to the City for year operating year for operation, management, promotion and maintenance of the SCP A. . Global or its affiliate shall be responsible for ticket sales (other than events sponsored by resident companies). Global shall hold ticket sale revenues for upcoming events in trust for the protection of ticket purchasers. . All personnel operating the SCP A shall be hired by Global and shall be employees of Global, not of the City. . Global shall execute user/rental agreements for the use of the SCP A in the form approved by the City. . Global indemnifies and holds harmless the City and its employees. . Global to maintain appropriate levels of insurance coverage. . Standard non-discrimination, drug free workplace and choice of law/venue clauses. . Global shall comply with applicable environmental laws. . Global shall be permitted to use the name and logo of the SCP A for purpose of promoting the SCPA, subject to City's approval. . Global shall comply with City's minority participation requirements. . Global shall comply with the spending limitations imposed in the City's approved budget. In the event Global incurs expenditures or commits to expend sums in excess of amount permitted in the approved budget, Global is liable for such expenditures. . Global's parent company, Comcast-Spectacor, L.P., provided a guarantee of performance to the City that guarantees Global's performance under this Agreement. 2 OPERATING AGREEMENT SANDLER CENTER FOR THE PERFORMING ARTS A T VIRGINIA BEACH TABLE OF CONTENTS ARTICLE I THE FACILITY.........................................................................................................1 ARTICLE II SCOPE OF SERVICES.............................................................................................4 ARTICLE III COMPENSATION................................................... ...............................................8 ARTICLE IV TERM; TERMINATION ........................................................................................9 ARTICLE V OWNERSHIP..... ....................................................................................................1 0 ARTICLE VI ANNUAL PLAN AND OPERATING BUDGET.................................................ll ARTICLE VII PROCEDURE FOR HANDLING INCOME....................................................... 14 ARTICLE VIII FISCAL RESPONSIBILITy..... ..................... ....... ........ ................ .... .................17 ARTICLE IX CAPITAL IMPROVEMENTS ...... ................... ......... ................................. ......... ..20 ARTICLE X [RESERVED]........................................................................................................ .21 ARTICLE XI PERSONNEL...................................................................................................... ..21 ARTICLE XII AGREEMENT MONITORING AND GENERAL MANAGER........................22 ARTICLE XIII USER/RENTAL AGREEMENTS ......................................................................23 ARTICLE XIV INDEMNIFICATION.........................................................................................23 ARTICLE XV INSURANCE; BONDS........................ .............................................................. .24 ARTICLE XVI COMPLIANCE WITH EQUAL OPPORTUNITY LAWS, REGULATIONS, RULES AND OTHER LAWS............................................................................................... ...... ..25 ARTICLE XVII PROHIBITION AGAINST CONTINGENT FEES ..........................................25 ARTICLE XVIII FUND IN G CONTINGENCy........................................................................ ..26 ARTICLE XIX PERMITS, LICENSES, TAXES AND LIENS ..................................................26 ARTICLE XX INDEPENDENT CONTRACTOR..................................................................... .26 ARTICLE XXI COMPLIANCE WITH ENVIRONMENTAL LAWS .......................................27 ARTICLE XXII NAME AND LOGOS.............................................................................. .........27 ARTICLE XXIII MINORITY P ARTICIP A TION REQUIREMENTS .......................................28 ARTICLE XXIV TAX EXEMPTION COVENANT - FINANCING DOCUMENTS ...............28 -1- ARTICLE XXV GUARANTY OF PERFORMANCE ................................................................29 ARTICLE XXVI MISCELLANEOUS........................................................................................29 -11- OPERATING AGREEMENT SANDLER CENTER FOR THE PERFORMING ARTS AT VIRGINIA BEACH This Operating Agreement for the Sandler Center for the Performing Arts at Virginia Beach ("Agreement") is made as of the _ day of , 2007 ("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 City has previously engaged Manager to perform certain specified pre- opening services with respect to the Facility pursuant to a Pre-Opening Services Agreement dated as ofthe 21 st day of July, 2006 (the "Pre-Opening Agreement"), WHEREAS, the Pre-Opening Agreement terminates on the date on which the Facility opens to the general public for an event performance (the "Opening Date"), which date is expected to be October 1,2007; and WHEREAS, the City has selected Manager to manage the operations of the Facility following the Opening Date, and Manager desires to accept such engagement, pursuant to the terms and conditions contained herein; 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 plazas, 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 definitions and identifications set forth below are considered to be correct and true and are agreed upon by the parties. 1 "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. "Annual PIan" has the meaning set forth in Section 6.1 hereof. "Appropriation Deficiency Notice" has the meaning set forth in Section 7.2 hereof. "Approved Budget" means any budget submitted by Manager and approved by the City in accordance with Section 6.2 hereof, as such budget may be amended from time to time in accordance with the provisions of Section 6.3 and 6.4 hereof. "Capital Expenditures" means all expenditures for purchases of additional or replacement furniture, fixtures, machinery, or equipment, the cost of which is in excess of $5,000 and the depreciable life of which, according to generally accepted accounting principles, is in excess of one (1) year and any other item of expense that, according to generally accepted accounting principles, is in excess of $5,000 and not properly deducted as a current expense on the books of Manager, but rather should be capitalized. "Cash Flow Shortfall" has the meaning set forth in Section 7.1 hereof. "City Contract Administrator" shall mean the City Contract Administrator described in Section 12.1. "Consumer Price Index" shall mean the average Consumer Price Index for All Urban Consumers (CPI-U) for the U.S. City Average for All Items for the twelve (12) months immediately preceding the applicable Operating Year, as published by the Bureau of Labor Statistics. "Current Term" means the period beginning on November 1, 2007, and ending on October 31, 2010. "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. "Event Operating Account" means the account by that name established pursuant to Article VII hereof, which account shall consist of two (2) sub accounts designated as the "Resident Company Subaccount" and the "Non-Resident Company Subaccount." "Facility Operating Account(s)" means the account(s) by that name established pursuant to Article VII hereof. -2- "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 ofthe Facility. "Fixed Fee" has the meaning set forth in Section 3.1 hereof. "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 ignitability, 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. "Incentive Fee" has the meaning set forth in Section 3.2 hereof. "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. "Operating Expenses" has the meaning set forth in Section 8.10 hereof. "Operating Revenues" has the meaning set forth in Section 8.9 hereof. "Operating Term" means the Current Term and all Subsequent Extension Term(s), if any. "Operating Year" means the eight (8) month period of time during which the Facility is operated commencing on November 1, 2007, and ending on June 30, 2008, each twelve (12) month period oftime thereafter ending June 30, 2009, and June 30,2010, and the four (4) month period beginning July 1, 2010, and ending October 31,2010. "Operations Manual" means that certain existing operations manual for the Facility developed by Manager and approved by the City, as the same may be amended from time to time in accordance with the provisions of this Agreement, and which includes, without limitation, a priority booking policy/schedule for the Facility, a schedule of rates to be charged for the use of the Facility and a policy on reducing or waiving such rates in appropriate circumstances, and a description of the process to be used to measure customer satisfaction with the Facility and Manager's maintenance and operation thereof. "Petroleum Products" shall mean gasoline, diesel fuel, motor oil, waste or used oil, heating oil, kerosene and any other petroleum products. -3- "Procurement Laws" shall mean the Virginia Public Procurement Act (Va. Code g2.2- 4300 et seq.) and the procurement laws of the City (Virginia Beach City Code Article VI, Chapter 2). "Resident Company" shall mean organizations that meet each of the following five (5) criteria: 1. Be an incorporated, non-profit 501(c)(3) organization. 2. Have a primary activity/mission to produce or present performing arts events that are open to the public. 3. Have plans to contract for a volume of no less than $5,000 worth of time in the Facility for one season; or Have 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. Market a season ticket. (Season or series ticket meaning a 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. Be current on payment of all invoices to the Facility and/or such Resident Company's subcontractors. Each of the following shall be deemed a Resident Company for purposes of this Agreement: 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. "RFP Response" shall mean the Manager's Response dated May 27, 2005, to the City's Request for Proposal dated April 5,2005. "Subsequent Extension Term" has the meaning set forth in Section 4.1 hereof. "Tax-Exempt Bonds" shall have the meaning assigned to such term in Section 24.1 hereof. "Virginia Arts Festival" or "V AF" shall mean Virginia Arts Festival, Inc. "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. ARTICLE II SCOPE OF SERVICES Section 2.1. The City hereby engages Manager to promote, operate and manage the Facility during the Operating Term upon the terms and conditions hereinafter set forth, and Manager hereby accepts such engagement and agrees to perform and furnish necessary management services, systems and materials as appropriate to operate, supervise, manage and maintain the Facility in the most efficient manner consistent with the operations of other first- -4- class performance halls and in compliance with all applicable statutes, ordinances, laws, rules, regulations and requirements under Federal, Commonwealth of Virginia, City of Virginia Beach 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 Approved Budget. Subject to the terms of this agreement, Manager shall be the sole and exclusive managing agent of the City to manage, operate and promote the Facility during the Operating Term; provided, however, that Manager shall comply with and be subject to existing contracts for the Facility and all policies, procedures, budgets and guidelines established by the City (including, without limitation, any methodology pertaining to the allocation of costs and expenses by the City to the Facility as permitted herein), which policies and procedures may be established or modified by the City from time to time, subject to the terms of this Agreement. Section 2.2. Without limiting the generality of the foregoing, Manager's obligations hereunder shall include, but shall not be limited to, the performance of the following obligations, subject to controls and restrictions as stated elsewhere in this Agreement and/or the Operations Manual: (a) Manage the Facility in accordance with the Operations Manual, the Annual PIan (including the Approved Budget) and the terms of this Agreement, including, but not limited to, the provision of the following services either directly or through the use of independent contractors: purchasing, payroll, fire prevention, security, crowd control, traffic management, parking management and coordination, routine repairs, preventative maintenance, janitorial and housekeeping services, energy conservation, admission procedures, and general user services. Means and methods of management will effectively accommodate the needs of the mobility impaired and handicapped patrons. (b) 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 E - 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 ofthe Facility. (i) 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, or a talent contract in connection with an event in the Facility, has a term that extends beyond the remaining Operating Term hereof, such license, agreement, commitment or contract shall be approved in advance by the City. (ii) 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 -5- Affiliate for comparable goods and services elsewhere and which are competitive within the industry. (iii) Consistent with Exhibit E hereto, 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 ofthe above referenced services at a favorable cost. (iv) Unless the City agrees in advance to waive any or all of the following, any such license, agreement, commitment or contract (A) shall provide that any payment due thereunder shall be contingent upon the City Council's annual appropriation of funds for such purposes, (B) shall contain no agreement or other provision by which the City, as assignee or otherwise, would be obligated to indemnify any party thereto or any of such party's agents, servants and employees and (C) shall contain no agreement or other provision by which the City, as assignee or otherwise, would be obligated to pay the legal fees of any party thereto or any of such party's agents, servants and employees. (c) Require that all users of the Facility execute rental/user agreements in accordance with the requirements of Article XIII hereof. (d) Maintain the Facility and all fixtures, equipment, systems and materials located therein in the condition received by Manager, normal wear and tear excepted. At all times, equipment maintenance shall meet or exceed manufacturer's recommendations therefor. Manager shall provide the City Contract Administrator with an annual preventative maintenance schedule for the Facility. In addition, Manager shall provide the City Contract Administrator with a report on the last day of each quarter detailing all Facility maintenance that was performed during the preceding quarter. This report shall include a list of breakdowns of all major pieces of installed and portable equipment during such quarter. Manager shall provide the City with access to the Facility without notice for routine maintenance inspections. (e) Schedule Events at the Facility in accordance with the priority booking policy set forth in the Operations Manual. (f) Provide the City Contract Administrator with a "flash" report within five (5) days - or if the same cannot be completed within such five (5) day period, then as soon as practical thereafter but in no event to exceed fifteen (15) days - following the conclusion of an event at the Facility. (g) Provide day-to-day administrative services in support of its management activities pursuant to the Approved Budget and the Annual Plan described herein, including, but not limited to, the acquisition of services, equipment, supplies and facilities; internal budgeting and accounting; maintenance and property management; personnel management; record-keeping; collections and billing; and similar services. -6- (h) Employ, supervise and direct all of its employees and personnel consistent with the provisions of this Agreement. (i) Maintain detailed, accurate and complete financial and other records of all its activities under this Agreement in accordance with generally accepted accounting principles. The City Contract Administrator and other representatives of the City shall have access to such records at all times. In furtherance of the services to be provided hereunder, Manager may use computer software programs that it also licenses for use at various facilities other than the Facility, which in such event shall remain the sole property of Manager. (j) Promptly notify the City Contract Administrator of any injuries, property damage, claims, losses or damages relating to the Facility or the use thereof. Manager shall also promptly inform the City Contract Administrator of the necessity of, and assist the City Attorney with, instituting legal actions or proceedings to collect charges, rentals or other income due to the City, or to cancel, terminate or sue for damages under any license, use or concession agreement for the breach thereof or default thereunder by any licensee, user, advertiser, or concessionaire of the City. (k) Submit a written report to the City Contract Administrator on at least a monthly basis, or as otherwise voluntarily agreed to between the parties, no later than the close of the following month concerning its activities in the operation, management and supervision of the Facility and the administrative services performed by Manager in conjunction therewith. Such report shall, among other things, set forth bookings, receipts from all sources, expenditures, and such other and further information as the City may require or request. (I) Prepare a proposed annual operating budget for the Facility, as detailed in Section 6.2 hereof, in accordance with the City's approved format, and submit such budget to the City upon a schedule determined by the City Manager or his designee. (m) Comply with the spending limitations imposed in the Approved Budget, including any amendment(s) thereto as authorized, subject to Section 6.6. However, if extraordinary events occur which could not reasonably be contemplated at the time the Approved Budget was prepared, Manager may submit an amendment to the Approved Budget to the City for review and approval or denial. (n) Pay, when due, all Operating Expenses for the Facility from accounts established under this Agreement. (0) Deposit and hold in trust in the applicable subaccount of the Event Operating Account or such other interest-bearing account in a local qualified public depository as the City shall direct, any ticket sale revenues which it receives in the contemplation of or arising from an event pending the completion of the event, as more fully provided in Section 7.4 hereof and in the Operations Manual. Notwithstanding any other provision of this Agreement, except as provided in the Service and Usage Agreement dated _, 2007, between Manager and Patron Solutions, L.P., d/b/a New Era Tickets ("New Era Tickets") or with respect to ticket sales by any Resident Company (which the parties hereto agree may sell directly season and single event tickets to their events). Manager shall not contract to a third-party any of its -7- duties or responsibilities in connection with the receipt of ticket sales revenues for any such events. (p) Establish and maintain an ongoing relationship with the City and its committees and departments, the Virginia Beach Performing Arts Center Foundation, the Virginia Beach Performing Arts Center Advisory Committee, and any other organization as designated by the City, including attendance and participation of all scheduled meetings of the Foundation. (q) Require that the General Manager or hislher designee attend all scheduled meetings of the City regarding the Facility. (r) Conduct staff planning, retention and training. (s) Assist the City, if requested, with the supervision and maintenance of risk management and Facility insurance functions. (t) Supervise box office, parking, concession, catering, food service, novelty, and other related services and administer related contracts. If mutually agreed by the parties, Manager may provide food and beverage service directly or through an Affiliate. (u) Maintain and update the web site, which shall include information provided by the Virginia Beach Performing Arts Center Foundation regarding the Foundation, how to make donations to the Virginia Beach Performing Arts Center Foundation, and information on the Center Stage Capital Campaign. (v) Propose and undertake such sales, marketing, promotional and advertising efforts for the Facility as are budgeted and necessary to ensure that Operating Revenues generated from the use of the Facility are maximized and that broad community support for the Facility is cultivated. (w) Cause such other acts to be undertaken and completed with respect to the Facility consistent with the foregoing obligations, as mutually determined to be necessary for the management and operation of the Facility. Section 2.3. The parties' agreement with respect to technology services is set forth in Exhibit A. ARTICLE III COMPENSATION As total compensation to Manager for its services hereunder, the City shall pay to Manager a fee composed of a Fixed Fee, and an Incentive Fee as follows: Section 3.1. Fixed Fee. The City shall pay Manager a fixed fee (the "Fixed Fee") of $16,000.00 per month for each month during the initial Operating Year hereunder, with such monthly fee being adjusted for each Operating Year thereafter by applying the Consumer Price Index for each such Operating Year. On or before the last day of each month, Manager will -8- submit to the City an invoice for the Fixed Fee due for the following month, and the City will pay Manager such amount within ten (10) days following the end of the preceding month. Section 3.2. Incentive Fee. The City shall pay Manager an incentive fee ("Incentive Fee") with respect to each Operating Year hereunder in an amount equal to the sum of (a) the amount calculated as the sum of twelve percent (12%) of the following Operating Revenues: . Rental income - theater and rehearsal studio in excess of $250,000; . Net food and beverage sales income in excess of$100,000; . Net valet parking revenue; . Manager's mark-ups on expenses reimbursed by users/promoters; and . Box office rebate revenue . Advertising sales and sponsorship income in excess of $1 00,000. The Incentive Fee shall in no event during any Operating Year exceed 100% of the Fixed Fee payable pursuant to Section 3.1 hereof for any such Operating Year. Manager's right to receive payment of the Incentive Fee, or any portion thereof, shall be subject to Manager achieving in each such Operating Year the aggregate budgeted revenue from the Operating Revenue categories on which the Incentive Fee is calculated. The Incentive Fee determined to be payable hereunder shall be payable to Manager at the end of each Operating Year within thirty (30) days of the City's receipt from Manager of an invoice for the Incentive Fee. Promptly following the availability of the audited financial statements described in Article XIII for a Fiscal Year, Manager shall recalculate the Incentive Fee payable hereunder based on the audited financial statements and, in the event the Incentive Fee paid pursuant to this Section based on Manager's invoice differs from such recalculated amount, then within thirty (30) days of such recalculation Manager shall remit to the City any excess amount that was paid to Manager, or the City shall pay to Manager the shortfall, as the case may be. ARTICLE IV TERM; TERMINA nON Section 4.1. Term. (a) The term of this Agreement shall consist of the Current Term and the Subsequent Extension Term(s), if any. (b) Unless sooner terminated or extended pursuant to the provisions hereof, the term of this Agreement shall expire on the last day ofthe Current Term, October 31,2010. ( c) The term of this Agreement may be extended by the City at the expiration of the Current Term for up to two (2) additional one (1) year extension periods (each a "Subsequent Extension Term"). (d) In order to extend the Current Term or any Subsequent Extension Term(s) hereunder, the City shall provide Manager with no less than three (3) months written notice of its -9- intention to so extend the term of this Agreement. In the event Manager does not wish to accept the proffered extension for the Subsequent Extension Term(s), Manager shall notify the City of such determination in writing within ten (10) days after receipt of such written notice from the City, whereupon this Agreement shall terminate at the conclusion of the then-current term hereof. The compensation to be received by Manager during any Subsequent Extension Term(s) hereunder shall be the same as set forth herein for the Current Term (subject to continuing the annual CPI increases of the Fixed Fee as set forth in Section 3.1 hereof) unless otherwise agreed in writing by Manager and the City. 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 Operating 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 (1) shall promptly discontinue the performance of all services hereunder and (2) Manager shall assign to the City (which shall accept and assume, or cause the successor manager of the Facility to accept and assume, responsibility to perform under) all contracts and agreements relating to the operation of the Facility properly entered into by Manager as permitted by the terms of this Agreement (including, without limitation, the terms of Section 2.2(b )(i) through (iv) hereof), except software licenses that are not assignable. (d) 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 OWNERSHIP Section 5.1. The City will retain the ownership of the Facility at all times during the Operating Term hereof, including, but not limited to, real estate, improvements, technical and office equipment and facilities, furniture, displays, fixtures, vehicles and similar tangible -10- property. The City shall own all data and other electronic files generated by Manager in operating the Facility through the use of either the City's or Manager's data processing programs and software. Section 5.2. Manager may not take or use, for its own purposes, customer or exhibitor lists or similar materials developed by the City unless prior written consent thereto is granted by the City. Section 5.3. The City Contract Administrator and hislher designees shall have the right, without advance notice to Manager and at all appropriate times, to enter all portions of the Facility to inspect the same; to observe the performance of Manager of its obligations hereunder; to install, remove, adjust, repair, replace or otherwise handle any equipment, utility lines, or other matters in, on, or about the Facility; or to do any act or thing which the City may be obligated or have the right to do hereunder or otherwise. Nothing contained in this Section is intended or shall be construed to limit any other rights of the City hereunder. The City shall not unreasonably interfere with the activities of Manager hereunder, and the City's actions shall be conducted such that disruption of Manager's work shall be kept to a minimum. Nothing contained in this Section shall impose or be construed to impose upon the City any independent obligation to construct, maintain or make repairs, replacements, alterations, additions or improvements to the Facility or any of the equipment, fixtures, furnishings or materials located therein or create any independent liability for any failure to do so. Section 5.4. The ownership of and title to all intellectual property rights of whatsoever value held in the name of any of the parties hereto shall remain the sole property of such party. The ownership of consumable assets (such as office supplies and cleaning materials) purchased with Operating Revenues or other City funds shall remain with the City, but such assets may be utilized and consumed by Manager in the performance of services under this Agreement. The ownership of equipment, furnishings, materials, or fixtures not considered to be real property and other personal property purchased by Manager with Operating Revenues or other City funds for use at and for the Facility shall vest in the City automatically and immediately upon purchase or acquisition. The assets of the City as described herein shall not be pledged, liened, encumbered or otherwise alienated or assigned other than in the ordinary course of business of the Facility without the prior approval of the City. Manager shall promptly notify the City of any losses in inventory of City-owned equipment. ARTICLE VI ANNUAL PLAN AND OPERATING BUDGET Section 6.1. Manager shall provide to the City, (i) on or before September 1, 2007, in the case of the initial Operating Year that begins November 1, 2007, and (ii) except as otherwise provided herein, on or before November 1 of each Operating Year thereafter, an annual management plan (the "Annual Plan") for the next Operating Year. The Annual Plan shall include the following components: (a) Marketing Plan - Manager shall provide the City with an update of Manager's marketing plans for the Facility, which update shall contain, but shall not be limited to, the following elements: -11- (i) Market research; (ii) Market position; (iii) Marketing objectives; (iv) Marketing strategies; (v) Booking priorities; (vi) Targeted events - local, regional, national and international; (vii) Event management and marketing as well as corporate sponsorships; (viii) Event marketing; (ix) Internal and external support staff; (x) Advertising opportunities at 10cal, regional and national level; and (xi) Attendance at various trade shows, conventions and seminars. In connection with the Manager's marketing of the Facility, the Manager shall also perform the following services: A. Notify the City of events to be booked in the Facility, 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. B. Develop materials necessary to support the marketing pIan, including, but not limited to, videos, virtual tours, direct mailers, Facility newsletters, and promotional and advertising items and/or gifts. C. 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. D. Identify, III coordination with the City, potential advertisers, sponsors, equity partners and event producers. Develop, in consultation with the City, sponsorship values for Facility naming opportunities. E. Maintain ongoing community relations and exposure to industry via media releases, speakers bureau, paid advertising and direct mail. Develop membership and group sales databases. F. 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. G. Maintain booking calendar, schedule and contract events. Schedule and promote special events to round out programming. -12- (b) Annual Operating Budget - Manager agrees that by November 1 of each Operating Year, it will prepare and present to the City a summary of the annual operating budget described herein for the next Operating Year. Thereafter, by February 1 of each Operating Year, Manager agrees that it will prepare and present a line-item annual operating budget for the operation, management, promotion and maintenance of the Facility during the next Operating Year in compliance with such procedures, and containing such items, as required by this Agreement. Said budget shall include, at a minimum, a projected income and expense statement compared to the Approved Budget for the immediately preceding Operating Year, with an explanation of variances. The annual budget shall also include a list of anticipated events at the Facility and anticipated advertising and promotional activities. (c) List and Budget for Recommended Capital Expenditures. (d) Preventative Maintenance Plan. ( e) Operations Manual - Manager shall conduct an annual review of the Operations Manual and, to the extent it deems necessary, make recommendations for modifications thereto. Similarly, the City shall review the Operations Manual prior to the beginning of each Operating Year hereunder and shall be entitled to request amendments thereto, which amendments shall be incorporated therein by Manager. Any such amendments to the Operations Manual resulting in additional operating costs shall be reflected in an amendment to the Annual Operating Budget. The Operations Manual, and any amendments thereto, shall be deemed a part of this Agreement and shall be incorporated herein by this reference. (f) In addition to the foregoing, the Annual Plan shall be supplemented with the Manager's projections of the Operating Budget and Capital Expenditures required for the period of the remaining Operating Years assuming the term of this Agreement is extended to include all Subsequent Extension Terms contemplated by Section 4.1(c). The City acknowledges that such projections will be provided in good faith, will constitute estimates only and shall be subject to change. Section 6.2. The Annual Plan shall be subject to review, revision and approval by the City. Within thirty (30) days of its receipt of the Annual Plan, the City shall notify Manager of any changes to such Annual Plan, including, without limitation, the proposed annual operating budget. Manager shall have twenty (20) days within which to incorporate the City's suggested revisions into the Annual Plan, to discuss the same with the City Contract Administrator and to submit the Annual Plan, as revised, to the City for final approval. Upon final approval by the City of the Annual Plan, as revised (which approval shall not be unreasonably withheld), the same shall constitute the operating program for Manager for the next Operating Year and the annual operating budget approved in connection therewith shall be the "Approved Budget" for the next Operating Year. Section 6.3. Manager may submit to the City at any time prior to the close of an Operating Year a supplemental or revised annual operating budget for such Operating Year. Upon the approval by the City Manager or City Council, as the case may be under City policies for budget amendment authorization, of such supplemental or revised annual operating budget, the Approved Budget for such Operating Year shall be deemed amended to incorporate such -13- supplemental or revised annual operating budget. The Approved Budget may only be amended in the manner set forth in the two preceding sentences or Section 6.4. Section 6.4. In the event that it appears reasonably likely, in any Operating Year hereunder, that the actual net operating loss/profit for such Operating Year will be larger, in the case of a net operating loss, or smaller, in the case of a net operating profit, than projected in the Approved Budget for such Operating Year, the City may request from Manager a plan for reduction of Operating Expenses to a level consistent with the budgeted net operating loss/profit amount. Manager shall forthwith comply with any such expense reduction requested by the City, and the Approved Budget for such Operating Year shall be modified accordingly. Section 6.5. Manager shall ensure that its representatives are present at all City meetings where budgets for the Facility are to be discussed. Section 6.6. Manager, in its reasonable discretion and in furtherance of its obligations under this Agreement, may reallocate funds among the Operating Expense line-item category amounts set forth in the Approved Budget (and subsequently expend such amounts on Operating Expenses hereunder) in an aggregate amount not to exceed $100,000 without the prior approval of the City provided that in so doing, Manager informs the City Contract Administrator of such changes and does not cause the actual net operating loss for the then-current Operating Year to exceed the amount projected in the Approved Budget for such Operating Year. Where Manager determines, or is informed in writing by the City, that the actual net operating loss for the then- current Operating Year appears reasonably likely to exceed the amount projected in the Approved Budget for such Operating Year, Manager shall not exceed, commit or contract to expend any sums in excess of the original Operating Expense line-item category amounts set forth in the Approved Budget without the prior written approval of the City Contract Administrator. In the event Manager incurs expenditures or commits to expend sums in excess of amounts permitted by the terms of this Agreement without the prior written approval of the City, Manager agrees that it shall be liable for any such expenditure and further agrees that the City shall have no liability with respect thereto. ARTICLE VII PROCEDURE FOR HANDLING INCOME Section 7.1. Subject to Section 7.2 and Article XVIII hereof, following the establishment of the Approved Budget for an Operating Year, the City shall make available to Manager all funds necessary to pay all Operating Expenses incurred or accrued in such Operating Year within the Approved Budget. To the extent that Operating Revenues during a calendar quarter period are insufficient, or expected to be insufficient, to cover Operating Expenses (a "Cash Flow Shortfall") for such period, the City shall advance funds to Manager as follows: thirty (30) days prior to the beginning of each quarter of the fiscal year during the Operating Year, Manager will submit to the City an invoice for the projected Cash Flow Shortfall for such quarter and the City will transfer such funds to Manager within five (5) days after the start of such fiscal year quarter. Such funds shall be deposited by Manager in the Facility Operating Account(s) and shall be used by Manager solely for the payment of Operating Expenses hereunder. -14- Section 7.2. The City shall have no obligation to provide funds for the payment of Operating Expenses incurred or committed for by Manager after the date Manager receives written notice (an "Appropriation Deficiency Notice") from the City of the fact that insufficient funds or no funds have been appropriated for the Facility. Such Appropriation Deficiency Notice shall specify the date on which funds for the Facility will be exhausted and an order of priorities for expenditure of the remaining City funds. Section 7.3. Upon delivery of the Appropriation Deficiency Notice, the City shall pay all Operating Expenses incurred or committed for by Manager prior to the date Manager received such Appropriation Deficiency Notice. Any failure by the City to provide funds (beyond the aggregate level of appropriated funds) for the payment of Operating Expenses incurred or committed for by Manager after Manager receives such Appropriations Deficiency Notice shall not constitute a breach of or default by the City under this Agreement. Any failure by Manager to perform its obligations under this Agreement shall not be a breach of or default under this Agreement if such breach or default results from the City's failure to appropriate sufficient funds for the management, operation and promotion ofthe Facility. Section 7.4. Ticket sale revenues and similar event-related revenues that Manager receives in contemplation of or arising from an event to be held at the Facility shall be deposited by Manager as soon as practicable upon receipt (but in any event within three (3) business days of receipt by Manager) into the Event Operating Account or such other interest-bearing account in a local qualified public depository as the City shall direct pending the completion of such event, with ticket sales revenues and similar event-related revenues attributable to Resident Company events being deposited in the Resident Company Subaccount and all other ticket sales revenues and similar event-related revenues being deposited to the Non-Resident Company Subaccount. Such moneys will be held in trust for the protection of ticket purchasers, the City and Manager, and to provide a source of funds for payments to performers and promoters and for payment of expenses in connection with the presentation of such events. Following satisfactory completion of the event, Manager shall make a deposit into the Facility Operating Account of the amount in such Event Operating Account (and each subaccount therein) and shall provide the City with a draft event "flash" report within five (5) business days and a final event "flash" report within thirty (30) days. Interest earned on amounts deposited in the Event Operating Account shall be considered Operating Revenues. Bank service charges, if any, on such account shall be considered an Operating Expense. In the event that the Non-Resident Company Subaccount does not contain sufficient funds to reimburse ticket purchasers for events (other than Resident Company events) that are cancelled or otherwise not held or completed and for which such ticket purchasers are entitled by law to a refund, Manager shall be responsible for any such reimbursement to ticket purchasers who purchased tickets from Manager or New Era Tickets, the entities authorized under this Agreement to handle such ticket sales, and the City shall have no liability in respect thereof. Manager shall have no liability for reimbursement to ticket purchasers of Resident Company events. Section 7.5. Except as otherwise provided in this Agreement, including, without limitation, Section 7.4 hereof, all Operating Revenues collected by Manager from the operation of the Facility shall be deposited into the Facility Operating Account as soon as practicable upon receipt (but in any event within three (3) business days of receipt by Manager). Except as otherwise provided in this Agreement, including, without limitation, Section 7.4 hereof, Manager -15- shall use funds in the Facility Operating Account to pay for Operating Expenses hereunder. All Operating Revenues and other revenues collected by Manager arising from operation of the Facility, including revenues from Facility or equipment rentals, utility rental agreements, food and beverage concessions, or any other source, are the sole property of the City and shall be held in trust by Manager for the City for application as provided herein. On the first (l st) business day of each calendar quarter or at such other time as may be provided in the Operations Manual, uncommitted amounts in the Facility Operating Account in excess of the budgeted amount of Operating Expenses, as set forth in the Approved Budget, for such fiscal year quarter may be applied by the City in such manner as the City may determine in its sole discretion, including but not limited to, retained in the Facility Operating Account for the payment of future Operating Expenses or transferred by the City to any other fund or account. Section 7.6. Each of the Facility Operating Account(s), the Event Operating Account(s) and any other account established hereunder or pursuant to the Operations Manual shall be opened by Manager, in its own name and federal identification number. Manager shall designate no more than four (4) employees of Manager to be authorized signatories on the accounts. In addition, such accounts shall permit two authorized City signatories. Any amounts remaining in such accounts upon the expiration or earlier termination of this Agreement for any reason, after payment of all outstanding Operating Expenses, shall be promptly paid by Manager to the City. Upon the expiration or earlier termination hereof, Manager shall remove Manager's designated signatories from all such accounts. Similarly, upon the termination of employment of any of Manager's designated signatories, Manager shall notify the City Contract Administrator thereof and shall remove such designated signatory from all such accounts. Section 7.7. In addition to the reports specified in Section 8.2 hereof, within sixty (60) days after the end of each Operating Year hereunder, Manager will provide the City with a complete unaudited financial statement for each account, which accounts shall be subject to audit by the City at any time. Section 7.8. It is the intent of this Agreement that cash control for Facility operations shall be accomplished through a combination of rigid accounting procedures and internal audit tests and an annual audit by an independent public accounting firm approved by the City. As more fully provided in this Agreement and in the Operations Manual, separate bank accounts shall be utilized for Operating Revenues and box office receipts. Payrolls shall be processed through the Facility Operating Account, reconciled monthly and tested via internal control procedures. Each event shall be accounted for using an event accounting system, with budgets and final reports prepared for each event as provided in the Operations Manual, and Operating Expenses for each event shall be coded for accurate accumulation to ensure all applicable costs shall be paid by the users of the Facility. Advance deposits covering rentals and estimated costs shall be required as provided in the Operations Manual to minimize collection programs. When deemed necessary by Manager, credit references shall be checked on clients when deposits are not being collected to cover rental costs and ancillary expenses for the event. -16- ARTICLE VIII FISCAL RESPONSIBILITY Section 8.1. Manager agrees to keep and maintain during the Operating Term hereunder, separate and independent records, in accordance with generally accepted accounting principles, devoted exclusively to its activities at the Facility. Said books, ledgers, journals, accounts, and records shall contain all entries reflecting the activities of Manager under this Agreement and shall be maintained in Manager's office in the Facility during the Operating Term. Upon expiration or earlier termination of this Agreement, Manager shall deliver to the City copies of all such books and records. All of the foregoing records shall be open for examination and audit by the City Contract Administrator and other City designated and authorized agents or personnel during Manager's ordinary business hours on demand and without the provision of advance notice, provided the City shall schedule such audits so as to minimize any interruption to Manager's operations. Manager shall keep and preserve for at least three (3) years following each Operating Year all sales slips, rental agreements, purchase orders, sales books, credit card invoices, bank books or duplicate deposit slips, and other evidence of Operating Revenues and Operating Expenses for such Operating Year, provided that Manager shall have no obligation to maintain such materials following the end of the Operating Term in the event Manager delivers all such materials to the City upon expiration or earlier termination hereof. Section 8.2. Manager agrees to render, within thirty (30) days after the end of each month during the Operating Term hereof, financial reports for the Facility including a balance sheet, an aging report on accounts receivable, and a statement of revenues and expenditures (budget to actual) for the current month and year to date in accordance with generally accepted accounting principles. In addition, Manager will provide separate cash receipts and disbursements reports for each event held at the Facility during such month. In addition, Manager will immediately upon request by the City, the City Contract Administrator or hislher designee provide information on the Facility Operating Account(s) and the Event Operating Account(s). Section 8.3. Manager agrees to meet with the City Contract Administrator and other City designated and authorized agents or personnel on request to answer questions relating to the operation of the Facility and the financial reports submitted by Manager in relation thereto. In addition, Manager agrees within ninety (90) days following the end of each Operating Year hereunder to provide to the City a balance sheet, a statement of profit or loss and a statement of cash flows for the Facility for the preceding Operating Year, prepared in accordance with generally accepted accounting principles and accompanied by an independent auditor's report prepared by a nationally recognized, independent certified public accountant that has been approved in advance by the City. The audit shall contain an opinion expressed by the independent auditor of the accuracy of the financial records kept by Manager. The audit shall also provide a certification of Operating Revenues and Operating Expenses for such Operating Year. Notwithstanding anything to the contrary contained herein, the costs of such audit shall be deemed an Operating Expense hereunder. A letter from such accounting firm expressing its opinion as to the effectiveness of internal controls and a management letter will accompany the audit report. -17- Section 8.4. Manager agrees to use forms, accounting methods, internal controls and procedures for its reports that are acceptable to the City and in particular report in conformance with the chart of accounts attached hereto as Exhibit B. The City hereby agrees that the forms generated by Manager's use of MAS 200 are acceptable. Section 8.5. The City, the City Contract Administrator and other City designated and authorized agents or personnel may request additional financial or statistical reports with respect to the Facility, and Manager shall promptly provide such reports to the City. It is agreed that such requests by the City will be reasonable with respect to timing and frequency and shall not require Manager to incur additional out-of-pocket expense. Section 8.6. The parties shall together, one time during each Operating Year, conduct an inventory of equipment and fixed assets of the Facility. Section 8.7. Any data, equipment or materials furnished by the City to Manager and any such data, equipment or materials that may be acquired by Manager from Operating Revenues or other City funds to be used at the Facility shall remain the property of the City, and when no longer needed for the performance of this Agreement, shall be returned to the City. Section 8.8. All Manager employees handling moneys or designated as authorized signatories on any Facility accounts shall be sufficiently covered, as an Operating Expense hereunder, by crime insurance, to protect Manager's and the City's interests. Such crime insurance shall be in the amounts set forth in Exhibit B attached hereto and shall name the City as loss payee as its interest may appear. Section 8.9. Operating Revenues for the Facility shall be defined to include, but shall not be limited to, the following: . Rental Income; . Equipment Rental fees; . Manager's mark-ups on expenses reimbursed by users/promoters; . Lease income; . Commission revenue; . Interest/Miscellaneous Operating income; . Net Valet Parking Revenue; . Advertising sales and Sponsorship income; . Food and Beverage sales income; . Merchandise sales income; and . Box Office Rebate revenue. Operating Revenues shall not include any of the following: . applicable excise, sales, occupancy and use taxes, or similar government taxes, duties, levies or charges collected directly from patrons or guests, or as a part of the sales price of any goods, services, or displays, such as gross receipts, admission, cabaret, or similar or equivalent taxes; -18- . any gratuities collected (or to be collected) for the benefit of and paid to any of Manager's personnel, unless such gratuities are collected as part of a service charge; . Event ticket proceeds collected (or to be collected) for the benefit of and actually paid to a third party event promoter (i.e., promoter proceeds); . rent paid by the City for office space and use of parking spaces in the Facility; and . moneys collected from the sale of naming rights and other corporate sponsorship opportunities for the Facility where Manager or its contractor has not participated in the sale of such items. Section 8.10. Operating Expenses shall be defined as all expenses incurred by Manager in connection with its operation, management and promotion of the Facility, and shall include, but shall not be limited to, the following: . Payroll, benefits, bonuses and related costs; . Operating supplies; . Advertising, marketing and promotion costs; . Cleaning; . Data processing; . Printing and stationary costs; . Dues, subscriptions and memberships; . Postage and freight costs; . Equipment and rental costs; . Minor repairs and maintenance, not inclusive of Capital Expenditures; . Security expenses; . Travel and Entertainment; . Cost of office supplies; . Telephone charges; . Cost of employee uniforms; . Exterminator and trash removal costs; . Parking expenses; . Utility expenses; . Audit; . Insurance costs; . Taxes; and . Commissions to third parties. Section 8.11. Travel expenses of Manager's employees shall be paid as Operating Expenses hereunder when included in the Approved Budget. Such expenses shall be prorated if Manager's employees conduct business on behalf of Manager or other facilities. All non- budgeted travel expenses shall be paid as Operating Expenses hereunder only to the extent that it appears reasonably likely at the time such expense is incurred that the actual net operating loss for the then-current Operating Year will be smaller than the amount projected in the Approved Budget for such Operating Year; otherwise, such non-budgeted travel expenses shall be paid as Operating Expenses hereunder only with the prior written consent of the City Contract Administrator.i -19- Section 8.12. Unless included in the Approved Budget, relocation expenses of Manager's employees shall not be considered Operating Expenses hereunder without the prior written approval of the City Contract Administrator. Section 8.13. Reasonable and actual1egal expenses incurred by Manager in connection with required collection efforts or other matters directly related to Facility operations shall be considered Operating Expenses hereunder, provided Manager shall confer with the City Contract Administrator and the City Attorney prior to incurring any such expenses. In no event, however, shall legal expenses incurred by Manager in proceedings instituted by Manager against the City be considered an Operating Expense hereunder. ARTICLE IX CAPITAL IMPROVEMENTS Section 9.1. The City will retain the responsibility for making Capital Expenditures for the Facility; however, the City shall be under no obligation to make any Capital Expenditures during the Operating Term hereof. Manager agrees to provide to the City, in accordance with and as part of the Annual Plan, Manager's recommendation for Capital Expenditures to be accomplished during the next Operating Year and shall be accompanied by an estimate of the cost of all such items and projects and a request that the City budget funds therefor. The City shall retain the discretion to determine whether, and to what level, to fund Capital Expenditures to the Facility. All routine and minor repairs, maintenance, preventative maintenance, and equipment servicing shall be the responsibility of Manager as Operating Expenses. Section 9.2. Except for expenditures properly made in accordance with Section 9.4 hereof, Manager shall obtain prior approval from the City Contract Administrator for necessary repairs that are made to the Facility, the cost of which exceeds Two Thousand Five Hundred Dollars ($2,500.00). Manager shall cause all necessary minor repairs and improvements to be made to the Facility using moneys available in the Approved Budget. Section 9.3. Manager shall be responsible for ensuring that all repairs, replacements, and maintenance activities shall be of a quality and class at least equal to the original work. Any replacement of an item contained on the inventory schedule attached hereto as Exhibit C or any new item added to such inventory schedule shall be deemed the sole and exclusive property of the City. Section 9.4. Manager shall have the right to take such actions as it deems necessary, without the consent of the City, in situations where Manager determines there is an emergency with respect to the safety, welfare and protection of the general public, which actions shall include spending and committing funds held in the Facility Operating Account, even if such expenses are not budgeted as part of the Annual Budget. Immediately following such action, Manager shall inform the City Contract Administrator of the situation and the action(s) taken, and the City shall pay into the Facility Operating Account the amount of funds, if any, spent or committed by Manager pursuant to this Section in excess of budgeted amounts therefor. -20- Section 9.5. The parties agree that in the event Manager requests a capital improvement, the City will give reasonable consideration to such request(s) in formulating its budget in light of competing financial considerations. ARTICLE X [RESERVED] ARTICLE XI PERSONNEL Section 11.1. Generally. (a) Except as provided in Section 11.1(b), all personnel operating at the Facility shall be engaged or hired by Manager (or an Affiliate, agent or contractor of Manager), and shall be employees, agents or independent contractors of Manager (or an Affiliate, agent or contractor of Manager), 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. The City specifically agrees that Manager shall be entitled to pay its employees, as an Operating Expense, compensation in accordance with Manager's then current employee manual, which may be modified by Manager from time to time in its sole discretion. A copy of Manager's current employee manual shall be provided to the City upon request. Manager agrees to use reasonable and prudent judgment in the selection and supervision of such personnel, including the use of background (including, without limitation, criminal background) and reference checks, as applicable. Manager shall comply with all applicable laws including, without limitation, the immigration laws of the United States in its selection and hiring practices. Except as provided in Sections 11.2 or 11.3, 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 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. Due to the direct contact with the public, Manager shall not employ or assign employees at the Facility who are known by Manager to have been convicted of a felony or a misdemeanor deemed to be a crime against persons under the Virginia Code, or who have been convicted of any sexual molestation charge against children. Further, any employee who is charged with any of such offenses, pending adjudication of such charges, shall not be permitted in the Facility. (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. -21- (c) In the event Manager utilizes the services of volunteer workers at the Facility, Manager agrees to apply the same selection and hiring practices to such volunteer workers as it applies to paid employees, all as more further described in (a) above including, without limitation, compliance with all applicable labor and employment laws. Further, such volunteer workers shall be subject to the limitations and restrictions described in (a) above in respect of any criminal violations or charges. Section 11.2. 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 manager of the Facility ("General Manager"). Hiring of the General Manager by Manager shall require the prior approval of the City, which approval shall not be unreasonably withheld or delayed. The City hereby approves of Paul Lasakow as Manager's initial General Manager. 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 11.3. Prohibition on Hiring. During the Operating Term hereof and for a period of one (1) year thereafter, 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 11.3 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 11.3, 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 City Contract Administrator, the Project Director and the Capital Campaign Coordinator. ARTICLE XII AGREEMENT MONITORING AND GENERAL MANAGER Section 12.1. 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 hislher designee, and at present is Emily Spruill (subject to change by written notice to Manager). Any and all references in this Agreement requiring City participation or approval shall mean the participation or approval of the City Contract Administrator. The City Contract Administrator shall be the liaison between Manager and the City on all matters relating to this Agreement, shall ensure that any information supplied by -22- Manager is properly distributed to the appropriate City departments, and shall be responsible for the monitoring and assessment of contract compliance by Manager. Section 12.2. 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. Section 12.3. Complaints. Complaints received by the City regarding the conduct or the manner of operation ofthe Facility or of Manager's employees, including, without limitation, the General Manager, shall be promptly addressed by Manager. ARTICLE XIII USER/RENTAL AGREEMENTS Section 13.1. Manager shall have the authority to execute user/rental agreements for the use of the Facility in materially the form approved by the City 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 City 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 City 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 City Contract Administrator. Manager acknowledges that the City 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 City 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 City Contract Administrator. ARTICLE XIV INDEMNIFICATION Section 14.1. 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 or (b) breach by Manager of any of its representations, covenants or agreements made herein. Notwithstanding the foregoing, Manager shall have no duty to indemnify the City under this Section 14.1 for Losses that arise out of or are connected with (x) a negligent or 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 -23- 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 14.1 shall survive the expiration or earlier termination of this Agreement for a period of five (5) years. Section 14.2. Limitation on Manager's Liability. Manager shall have no liability, and shall not be responsible for, claims (or associated costs including, without limitations, attorney fees, court costs or damages assessed) 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 Section 2.2. ARTICLE XV INSURANCE; BONDS Section 15.1. Types and Amount of Coverage. Manager agrees to obtain insurance coverage in the manner and amounts as set forth in Exhibit C, 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 Operating 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 15.2. 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. -24- ARTICLE XVI COMPLIANCE WITH EQUAL OPPORTUNITY LAWS, REGULATIONS, RULES AND OTHER LAWS Section 16.1. 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 16.2. Manager shall include the proVISIOns of Section 16.1 hereof in every subcontract or purchase order over $10,000, so that the provisions will be binding upon each such subcontractor or vendor. Section 16.3. Manager shall be required to provide the City with its Federal employer identification number. ARTICLE XVII PROHIBITION AGAINST CONTINGENT FEES Section 17.1. 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 -25- Agreement without liability or may, in its discretion, otherwise recover the full amount of such Contingent Fee. Section 17.2. 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 XVIII FUNDING CONTINGENCY Notwithstanding anything contained herein to the contrary, the City's obligation to make payments to Manager hereunder shall be contingent upon the City Council's annual appropriation of funds for such purposes. The City contemplates that funding for the payments to Manager called for hereunder shall be obtained from Operating Revenues for the Facility. To the extent that Operating Revenues do not provide adequate funding for the payments to Manager called for hereunder, the City's obligations to make any payments due or otherwise payable hereunder shall be dependent upon City Council appropriating additional funds for such purpose. If such additional funding is not appropriated, the City will give prompt written notice thereof to the General Manager as provided in Section 7.2, which notice shall relieve the City from the obligation to make any further payments to Manager in accordance with the provisions of Sections 7.2 and 7.3. Upon its receipt of such written notice from the City, Manager shall have the right to terminate this Agreement immediately upon delivery of written notice thereof to the City, which termination shall be governed by the provisions set forth in Section 4.2 hereof. The City agrees that it will not withhold funding for the Facility solely in an effort to cause the termination of this Agreement. ARTICLE XIX PERMITS, LICENSES, TAXES AND LIENS 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. The cost of all such permits, licenses and taxes (other than taxes on compensation paid to Manager hereunder) shall be an Operating Expense. Manager shall use reasonable efforts to 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, provided that this provision shall not prevent Manager from contesting any lien resulting from work Manager believes, in good faith, was not performed adequately. ARTICLE XX 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 -26- 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. ARTICLE XXI COMPLIANCE WITH ENVIRONMENTAL LAWS Section 21.1. 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 threatened release of Hazardous Materials or Petroleum Products, Manager shall promptly notify the City. Section 21.2. 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 21.3. All expenses incurred by Manager in ensuring compliance with the terms and conditions set forth in this Article XXI 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 XXII NAME AND LOGOS 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. -27- ARTICLE XXIII MINORITY P ARTICIP A TION REQUIREMENTS Section 23.1. Manager shall comply with the requirements of Virginia Beach City Code g2-224.1 through g2-224.8 pertaining to minority participation in City contracting. Section 23.2. By executing this Agreement, Manager accepts the right of the City to appoint a representative to monitor Manager's compliance with the commitments and 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 23.3. 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 XXIV TAX EXEMPTION COVENANT - FINANCING DOCUMENTS Section 24.1. 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, 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 1.141-3( 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 24.2. Financing Documents. The City has provided Manager with a copy of the relevant provisions of the Financing Documents that impose limitations, restrictions or -28- 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 XXV GUARANTY OF PERFORMANCE Section 25.1. Comcast-Spectacor, L.P. is delivering, contemporaneously herewith, in the form attached hereto as Exhibit F, an executed agreement (the "Performance Guaranty") to the City pursuant to which Comcast-Spectacor, L.P. is guaranteeing the performance of Manager under this Agreement, including, without limitation, payment of any amounts owed by Manager to the City. Manager acknowledges that such Performance Guaranty must remain in effect at all times during the Operating Term. ARTICLE XXVI MISCELLANEOUS Section 26.1. 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 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, rule, regulation, or order of any public or military authority stemming from the existence of economic or energy controls, hostilities, war or governmental law and regulation, or (c) labor dispute which results in a strike or work stoppage affecting the Facility or services described in this Agreement. If all or substantially of the Facility is destroyed, damaged or rendered materially untenantable by fire, storm or other casualty or by any governmental or regulatory action, or if title to or the use of all or part of the Facility is taken under the exercise of eminent domain, or lost because of failure of title, the City may terminate this Agreement upon thirty (30) days written notice to Manager, whereupon the City shall be released from all further obligations to Manager including, without limitation, payment of such compensation as required under Section 3 hereof. Section 26.2. 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 consent may be withheld in its sole discretion, except that the City acknowledges and agrees that V AF has provided services pursuant to the terms of the Pre-Opening Agreement and that V AF may provide similar services under this Agreement on behalf of Manager, including, without limitation, services related to event booking and scheduling, marketing, promotion, event management and fundraising. 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. -29- Section 26.3. 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 P.O. Box 66129 Virginia Beach, Virginia 23466-6129 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 If to Manager: Global Spectrum, L.P. 3601 South Broad Street Philadelphia, Pennsylvania 19148 Attn: Chief Operating Officer 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 26.4. Severability. If a court of competent jurisdiction determines that any term of this Agreement is invalid or unenforceable to any extent under 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 26.5. 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 26.6. 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 26.7. 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. -30- Section 26.8. 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 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 26.9. 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. -31- 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: Title: ATTEST: ATTEST: Name Name Approved as to Content: Office of Cultural Affairs Approved as to Legal Sufficiency: Office of the City Attorney -32- CORPORATE ACKNOWLEDGMENT COMMONWEALTH OF PENNSYLVANIA ) ) CITY/COUNTY OF PHILADELPHIA ) IN WITNESS WHEREOF, on this _ day of 2007, before me, the undersigned, a Notary Public in and for the City/County and State aforesaid, came of Global Spectrum, Inc., a corporation duly organized, incorporated and existing under and by virtue of the laws of the Commonwealth of Pennsylvania; 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: -33- EXHIBIT A COMMUNICATIONS AND INFORMATION TECHNOLOGY SERVICE The parties agree to the following terms with respect to communications and information technology services at the Facility. (i) City Trusted Network a. 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. b. The City shall operate 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. c. The City shall maintain the Trusted Network and all expenses related to any modifications and/or additions shall be billed to the City's Office of Cultural Affairs d. Manager shall not be responsible for any expenses incurred by the City in operating or maintaining any of the components listed in item (c) above. Such expenses shall be paid by the City through its Office of Cultural Affairs. (ii) Facility / Manager's Network a. 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. b. Manager shall not make any additions and/or modifications to the Manager's Network infrastructure without prior consultation and approval of the City's Department of Communications and Information Technology Systems Support Division. Such network infrastructure shall include, but shall not be limited to, wiring, cabling, switches, and routers. Expenses incurred to make modifications or additions to the network infrastructure shall be billed to the City's Office of Cultural Affairs. All additions or modifications shall comply with the City's Network Standards. -34- c. Manager shall obtain prior approval from the City for any changes or modifications to the Facility's physical plant. d. Internet Access 1. In the event that Manager desires to provide Internet access to its employees, agents, and/or subcontractors located at the Facility ("Manager's Employees"), or to 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. 11. 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. 111. All expenses incurred by Manager, Manager's Employees, and Third Parties for Internet access at the Facility shall be included in Manager's Expense Budget and shall be subject to funding by the City. e. 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 shall be subject to funding by the City. f. 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 shall be subject to approval and funding by the City. g. 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. -35- Accordingly, Manager shall not have access to any of the City's information technology licenses. The City shall maintain ownership of all business software applications and associated hardware funded by the City, subject to the provisions of Section 2.2(i) of the Operating Agreement to which this Exhibit A is an integral part. All the costs associated with the foregoing shall be included in the Manager's Expense Budget and shall be subject to approval and funding by the City. h. 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. (iii) City Telephone System a. The City shall maintain the City installed 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 cabling for the telephone system. The City shall own all components of the telephone system. b. The City shall provide telephone service to the Facility and shall issue standard City telephone equipment for use at the Facility. c. Manager, Manager's Employees, and Third Parties shall utilize the City's telephone system at the Facility only for conducing Facility-related business. d. A single telephone bill shall be submitted monthly by the City's Department of Communications and Information Technology Telecommunications Division to the City's Office of Cultural Affairs for payment. The billing amounts will be based on the same rates offered to all City agencies. The bills shall include all expenses incurred by the City, Manager, Manager's Employees, and Third Parties for telephone service at the Facility. e. The City shall provide the same telephone services offered to other City agencies such as: Long Distance, Voice Mail, ACD, telephone system maintenance, moves, adds, changes and trouble ticket processing. f. The City shall maintain the voice and data cabling and all expenses related to any modifications and/or additions shall be billed to the City's Office of Cultural Affairs. -36- EXHIBIT B CHART OF ACCOUNTS -37- EXHIBIT C INSURANCE; BONDS At all times during this Agreement, Manager shall: (a) maintain commercial generalliability 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 Ii ability insurance as shall be required by and be in conformance with the laws ofthe Commonwealth of Virginia; and ( e) maintain professional liability insurance including employment practices liability coverage. Such liability coverage shall be maintained in the following minimum amounts throughout the Operating Term and shall include endorsements naming the City as joint loss payee with respect to any funding relating to this Agreement: 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 $10,000,000 per occurrence and aggregate D. WORKERS COMPENSATION: STATUTORY -38- 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 (Including Commercial Crimes and Employee Dishonesty) Coverage on all Manager employees Limit: $1,000,000 -39- EXHIBIT D INVENTORY SCHEDULE -40- EXHIBIT E INVENTORY SCHEDULE GlobalSpectrum Methods of Procurement The Sandler Center For The Performing Arts* Limits Procedures Small Purchases $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 wri tten $30,000 quotations, 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 three (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. $50,000 When practicable, Global Spectrum solicits wri tten 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. Formal Bids 2: $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. Sole Source Procurements None . Global Spectrum procures the goods/services from the sole source vendor and documents the basis for sole source. Emere:encv Purchases 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. 41 *Notwithstanding the foregoing, (i) Global Spectrum shall not be required to solicit quotations or bids for media purchases (e.g. buys of time/space in newspaper, radio, internet, television), or 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. -42- 22764.000268 RICHMOND 1908812v12 - 28 - Item V-J.2. RESOLUTION/ORDINANCES ITEM #56929 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED: Resolution requesting Members of the City's local General Assembly Delegation sponsor and/or support legislation that will realize the goals and objectives set forth in Virginia Beach's 2008 Community Legislative Agenda [deferred September 11,2007]. Voting: 9-2 (By Consent) Council Members Voting Aye: Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor Meyera E. Oberndorf, John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: William R. "Bill" DeSteph and Reba S. McClanan Council Members Absent: None October 9, 2007 1 A RESOLUTION ADOPTING THE CITY'S 2008 2 COMMUNITY LEGISLATIVE AGENDA AND 3 REQUESTING THAT MEMBERS OF THE CITY'S 4 LOCAL DELEGATION TO THE GENERAL 5 ASSEMBLY SPONSOR AND/OR SUPPORT 6 LEGISLATION THAT WOULD CARRY OUT THE 7 GOALS AND OBJECTIVES SET FORTH THEREIN 8 9 WHEREAS, the City Council traditionally adopts a Community Legislative 10 Agenda and requests member of the City's local Delegation to the General Assembly 11 sponsor and/or support legislation therein; and 12 13 WHEREAS, the City Council has considered a number of goals and objectives 14 for inclusion in the City's 2008 Community Legislative Agenda; and 15 16 WHEREAS, the City Council also solicited input from community groups in order 17 to advise its General Assembly Delegation of the goals and objectives of those 18 organizations; and 19 20 WHEREAS, City Council received the Community Group Items which are 21 included in a separate section of the City's 2008 Community Legislative Agenda and 22 Council appreciates the thoughtful participation of community groups in the community 23 legislative agenda process. 24 25 NOW THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 26 VIRGINIA BEACH, VIRGINIA: 27 28 1. That the City Council hereby adopts the City's 2008 Community 29 Legislative Agenda, which is attached hereto as Exhibit A and is hereby incorporated by 30 reference. 31 32 2. That the City Council hereby forwards the Community Group Items, 33 without endorsing them, to the City's Delegation to the General Assembly for their 34 consideration. 35 36 BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA 37 BEACH, VIRGINIA: 38 39 That the City's Delegation to the General Assembly is hereby requested to 40 sponsor and/or support legislation in the 2008 Session of the General Assembly that 41 would carry out the goals and objectives of the City as set forth in its Community 42 Legislative Agenda. 43 44 BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA 45 BEACH, VIRGINIA: 46 47 That the City Clerk is hereby directed to transmit a copy of this resolution to each 48 member of the City's local Delegation to the General Assembly. 49 50 Adopted by the City Council of the City of Virginia Beach, Virginia, this9th 51 day of --Octobor ,2007. APPROVED TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: ;::e~ City Attorney's OffiCY CA 10492 October 3, 2007 R-3 CITY OF VIRGINIA BEACH COMMUNITY LEGISLATIVE AGENDA AND COMMUNITY GROUP ITEMS 2008 GENERAL ASSEMBLY SESSION ~~~ -., iIOF ~' '~2WJj":P.2L?fl~H~.:F~---.! j ..-'^ BUILDING ~~A COMMUNITY FOR A LIFETIME" MUNICIPAL CENTER BUILDING ONE 2401 COURTHOUSE DRIVE, SUITE 234 VIRGINIA BEACH, VIRGINIA 23456 FI! 2008 COMMUNITY LEGISLATIVE AGENDA CITY OF VIRGINIA BEACH TABLE OF CONTENTS TABLE OF CONTENTS PREFACE VIRGINIA CODE CHANGE REQUESTS 1. Tax, Fee & Spending Task Force - Place Holder 2. Changes to Animal Fees - Place Holder 3. Environmental Impact Report for 100% Locally Funded Highway Projects 4. Loss of Medicaid Eligibility for Teens in Foster Care with Earned Income 5. Weapons in Public Buildings Where Health Services are Provided 6. Achieving Revenue Neutrality for Local Telecommunications Taxes 7. Definition of "Firearms" 8. Reimbursement for Transportation During Civil Admissions 9. Smoke-Free Restaurants 10. Creation of a State Insurance "Wind Pool" FUNDING ITEMS 1. BRAC Funding 2. Additional Group-Home Beds in Locality for Youth Out of Home Placement 3. CSA Administrative Allocation 4. Support for Additional State General Fund Dollars for CSB Programs 5. Funding for Public Health Services 6. Virginia Beach Lifelong Learning Center (Joint Use Library) 7. Pleasant Hall Purchase 8. Adam Thoroughgood House, Ferry Plantation House and Lynnhaven House 9. Virginia Aquarium & Marine Science Center 10. Sheriffs Work Release Facility 11. Virginia Beach Convention Center Funding 12. Sandler Center for the Performing Arts 1 2-11 2 2-5 5-6 6-7 7 7-9 9-10 10 1 0-11 11 12-22 12 13 13-14 14 14-15 15-16 16-17 17-18 18-19 20 20-21 21-22 2008 COMMUNITY GROUP ITEMS CITY OF VIRGINIA BEACH TABLE OF CONTENTS COMMUNITY GROUP ITEMS 1. Adequate Public Facilities 2. Funding for Mass Transit 3. Public Meeting Notice & Participation 4. Motorized Vehicle Use by Minors 5. Enforcement of Environmental Laws 6. Equalization of Penalties for Driving 7. Public Disclosure of Half-Way or Transitional Housing 8. Bayside Recreation Center 9 . Wetlands Board 23-26 23 23 24 24 25 25 25-26 26 26 2008 COMMUNITY LEGISLATIVE AGENDA CITY OF VIRGINIA BEACH PREFACE The 2007 Session of the General Assembly was a watershed for action by the General Assembly on transportation. By allowing Hampton Roads to establish a transportation authority with certain fees and the ability to toll major projects, the region can better control its destiny when it comes to transportation infrastructure improvements. For this action, this City Council is very appreciative. However, the statewide funding program still remains inadequate, especially with the possible loss of the civil penalties monies and the dependence on a surplus in the General Fund for a portion of the new statewide transportation funding program thought to not exist for the next biennium. Furthermore, although the General Assembly has put substantial funds into maintenance, the natural growth of maintenance funding needs will very shortly deplete those additional funds. There will again be a call on the construction budget to fund maintenance, which will decrease funding for transportation, including urban allocations. Much work remains to be done. Furthermore, although the re-benchmarking of education will mean an additional $1.2 billion or more for local governments over the next biennium, the true cost of re- benchmarking is perhaps 2-3 times that amount. This is evident when the City of Virginia Beach expends $160 million into education above what is required by the Standards of Quality. These funds are not to meet "local aspirations" as some in the General Assembly have categorized them; they are there to provide a quality education for our children so that they may be competitive in the world marketplace. The General Assembly needs to strive to fully fund the true cost of education. There continues to be a call by all local governments for the General Assembly to fully fund all the traditional State government services, such as Courts, Corrections, Mental Health, etc. With localities increasingly being called upon to provide funds that the State should be responsible for, the local governments must fall back on the one tax source available and that is the property tax. Although the General Assembly is moving toward a Homestead Exemption, this will only exacerbate the problem for local governments. The General Assembly needs to truly and fully fund the cost of statewide services and responsibilities. City Council, in concert with members of the General Assembly, has created a Tax and Revenue Task Force, which will be making detailed requests to the General Assembly in the near future. CITY OF VIRGINIA BEACH 2008 REQUESTED CODE OF VIRGINIA CHANGES 1. TAX, FEE & SPENDING TASK FORCE - PLACE HOLDER Background: The City of Virginia Beach has created a taskforce to review revenues and expenses. This group will report later this year and therefore a "place holder" is inserted for its future recommendations. 2. CHANGES TO ANIMAL FEES Dave Hansen Chief of Finance & Technology City Manager's Office Background: The City would like amendments to the Code of Virginia provisions dealing with pet license fees, impounding fees and cremation of animals. Current licensing compliance rates within the municipality are below 10%. The City's existing animal control facility is almost 40 years old and no longer meets the needs of our citizens. Adjusting the fee caps would allow the City to appropriately plan and resource the life cycle replacement of the facility, equipment, and vehicles necessary to provide this critical public service. Also enclosed is a request to establish an escalating recovery fee when animals are impounded. By increasing the fee for each subsequent impoundment, we will reinforce that owners are responsible for controlling their pets. The City has no capability for providing for large animal disposal. Current practices require private citizens to bury remains or, at huge expense, contract privately for disposal. By eliminating the incineration fee cap, the City could calculate the operational and capital costs needed to make the proper investment to support this growing requirement. This will ensure that the City's true cost for disposal of deceased animals, both large and small, is being covered by a realistic fee structure. Increasing the cap for non-altered dog and cat licenses will allow the City to enhance the incentive for citizens to neuter and spay their pets. It would be the intent of the City to raise the neutered and spayed pet license fee to $7/dog/ and $5/cat, and the non-neuteredlnon-spayed dog and cat fees to $25. 2 Request: 1. Remove the cap rate on cremation fees of $25.00 for small animals and $75.00 for large animals. Removing the cap would allow localities to charge fees to recoup the funds they spend on cremating animals. Each locality could then set fees as req uired. State Law: 18.2-510. Burial or cremation of animals or fowls which have died A. When the owner of any animal or grown fowl which has died knows of such death, such owner shall forthwith have its body cremated or buried, and, if he fails to do so, any judge of a general district court, after notice to the owner if he can be ascertained, shall cause any such dead animal or fowl to be cremated or buried by an officer or other person designated for the purpose. Such officer or other person shall be entitled to recover of the owner of every such animal so cremated or buried the actual cost of the cremation or burial, not to exceed seyent)' five dollars, and of the owner of every such fowl so cremated or buried the actual cost of the cremation or burial, not to exceed five dollars, to be recovered in the same manner as officers' fees are recovered, free from all exemptions in favor of such owner. Any person violating the provisions of this section shall be guilty of a Class 4 misdemeanor. 2. Increase the fee cap for dog and pet licenses to $25.00. The current cap of$10.00 is pre-1993. State Law: S 3.1-796.87. Amount oflicense tax. The governing body of each county or city shall impose by ordinance a license tax on the ownership of dogs and cats within its jurisdiction. The governing body of any county, city or town which has adopted an ordinance pursuant to subsection B of S 3.1-796.85 shall impose by ordinance a license tax on the ownership of cats within its jurisdiction. The governing body may establish different rates of taxation for ownership of female dogs, male dogs, spayed or neutered dogs, female cats, male cats, and spayed or neutered cats. The tax for each dog or cat shall not be less than one dollar and not more than tell- dollars for each year. If the dog or cat has been spayed, the tax shall not exceed the tax provided for an unaltered dog or cat._Any ordinance may provide for a license tax for kennels of ten, twenty, thirty, forty or fifty dogs or cats not to exceed fifty dollars for anyone such block of kennels. 1984, cc. 248,492, S 29-213.57; 1986, c. 169; 1987, c. 488; 1993, c. 817; 1994, c. 108; 2006, c. 836.) 3. Authorize localities to assess an additional recovery fee when a dog/cat is impounded for running at large. Such a fee shall not exceed $50 on the first occasion the dog/cat is impounded, $75 on the second occasion the dog/cat is 3 impounded, or $!SO on the third or subsequent occasion the dog/cat is impounded. This assessment shall be in addition to any fine or penalty imposed by a court as well as the actual expenses incurred of keeping the animal impounded. S 3.1-796.96. County or city pounds; confinement and disposition of animals; affiliation with foster care providers; penalties; injunctive relief. A. The governing body of each county or city shall maintain or cause to be maintained a pound and shall require does/cats running at large without the tag required by S 3.1- 796.92 or in violation of an ordinance passed pursuant to S 3.1-796.93 to be confined therein. Nothing in this section shall be construed to prohibit confinement of other companion animals in such a pound. The governing body of any county or city need not own the facility required by this section but may contract for its establishment with a private group or in conjunction with one or more other local governing bodies. The governing body shall require that: 1. The pound shall be accessible to the public at reasonable hours during the week; 2. The pound shall obtain a signed statement from each of its directors, operators, staff, or animal caregivers specifying that each individual has never been convicted of animal cruelty, neglect, or abandonment, and each pound shall update such statement as changes occur; 3. If a person contacts the pound inquiring about a lost companion animal, the pound shall advise the person if the companion animal is confined at the pound or if a companion animal of similar description is confined at the pound; 4. The pound shall maintain a written record of the information on each companion animal submitted to the pound by an animal shelter in accordance with subsection D of S 3.1-796.96:2 for a period of 30 days from the date the information is received by the pound. If a person contacts the pound inquiring about a lost companion animal, the pound shall check its records and make available to such person any information submitted by an animal shelter or allow such person inquiring about a lost animal to view the written records; 5. The pound shall maintain a written record of the information on each companion animal submitted to the pound by a releasing agency other than a pound or animal shelter in accordance with subdivision F 2 of S 3.1-796.96:5 for a period of 30 days from the date the information is received by the pound. If a person contacts the pound inquiring about a lost companion animal, the pound shall check its records and make available to such person any information submitted by such releasing agency or allow such person inquiring about a lost companion animal to view the written records; and 6. The pound shall maintain a written record of the information on each companion animal submitted to the pound by an individual in accordance with subdivision A 2 of S 3.1-796.96:7 for a period of 30 days from the date the information is received by the 4 pound. If a person contacts the pound inquiring about a lost companion animal, the pound shall check its records and make available to such person any information submitted by the individual or allow such person inquiring about a lost companion animal to view the written records. B. An animal confined pursuant to this section shall be kept for a period of not less than five days, such period to commence on the day immediately following the day the animal is initially confined in the facility, unless sooner claimed by the rightful owner thereof. The operator or custodian of the pound shall make a reasonable effort to ascertain whether the animal has a collar, tag, license, tattoo, or other form of identification. If such identification is found on the animal, the animal shall be held for an additional five days, unless sooner claimed by the rightful owner. If the rightful owner of the animal can be readily identified, the operator or custodian of the pound shall make a reasonable effort to notify the owner of the animal's confinement within the next 48 hours following its confinement. If any animal confined pursuant to this section is claimed by its rightful owner, such owner may be charged with the actual expenses incurred in keeping the animal impounded. Such an owner may be chareed an additional fee not to exceed $50 the first time the doe/cat is impounded. $75 the second time the doe/cat is impounded. and $MO~)~ the third or subsequent time the doe/cat is impounded pursuant to this section. This fee shall be in addition to any fine or penaltv imposed bv the court. 3. ENVIRONMENTAL IMPACT REpORT FOR 100% LOCALLY FUNDED HIGHWAY PROJECTS Phil Davenport Interim Director Department of Public Works Background: During the last General Assembly session, HB3202 was passed which amends State Code section 10.1 -1188 to require that even 100% locally funded highway projects (and only highway/road projects - all other types of local projects, regardless of impact, remain exempt) of $100,000 or more must develop and submit an environmental impact report to the Virginia Department of Transportation (VDOT). This legislation needs to be repealed for the following reasons: 1. Local projects of any type, if they have environmental impacts, must go through the appropriate state and federal environmental agencies to obtain the needed environmental permits. The localities perform this coordination directly. The environmental agencies carefully review the project environmental impacts (and often require an environmental document/report) and frequently require modifications to the 5 project design to minimize impacts before issuing the necessary environmental permits. Unless VDOT is being authorized to not only require an environmental report for its review, but also to issue the needed permits, requiring the City to submit an environmental reput to VDOT, offers no value. In fact, this will needlessly add time, expense and red tape to any local highway project of $1 00,000 or more. 2. VDOT charges fees to review various plans (such as site plans within the limits of a VDOT project); if VDOT intends to charge fees for review of legislatively mandated local environmental reports for local highway projects, the locality's cost for the project has just been increased. 3. Major projects are defined as those costing $100,000 or more. If the legislation must remain, this amount needs to be significantly increased. Just as gas no longer costs 30 cents a gallon, $100,000 won't even pay for a signal installation. It should be raised to at least $1,000,000 and preferably $5,000,000. So in summary, unless VDOT has been authorized to issue all required state environmental permits when it accepts a local environmental highway project report, the requirement for localities to submit environmental reports to VDOT for 100% locally funded highway projects is redundant (because localities already must deal directly with state and federal environmental agencies) this legislation will add significant costs and time to all affected locally funded highway projects. Change in the Code or Acts of Assembly required, if applicable: Repeal this legislation or greatly increase the monetary value of projects that are subject to this requirement. 4. Loss OF MEDICAID ELIGIBILITY FOR TEENS IN FOSTER CARE WITH EARNED INCOME Dr. Terry Jenkins Department Director Department of Human Services Background: Under current Virginia law (12V AC 30-40-280), the local Department of Social Services must discontinue Medicaid to a foster care child between the ages of 19 and 21 if the foster child earns more than $193.74 in gross income per month. These foster children need to have the benefit of Medicaid to cover the cost of their medical expenses, and they also need to have the opportunity to earn income beyond the current limitations. This law appears to be in direct conflict with the independent living program for foster children, which was designed to assist children in foster care aged 16-21 in becoming self- sufficient. Achieving the goal of self-sufficiency must include the opportunity for youth to earn income that will prepare them for survival in an independent living situation. 6 Request: The City requests that the General Assembly adopt legislation to allow foster children between the ages of 19-21 to be exempt from the income limitation, thus allowing them to remain eligible for Medicaid. This would give older foster children the opportunity to earn the income necessary to achieve the goal of self-sufficiency. 5. WEAPONS IN PUBLIC BUILDINGS WHERE HEALTH SERVICES ARE PROVIDED Dr. Terry Jenkins Department Director Department of Human Services Background: The General Assembly passed legislation in 2003 (codified at Virginia Code g 15.2-915) which prevents localities from prohibiting or restricting the carrying of weapons into City buildings. As a result, the City may no longer prohibit people from bringing firearms into facilities run by Mental Health, Mental Retardation and Substance Abuse Services and Social Services. Request: The City requests that the General Assembly is requested to amend the Code of Virginia to authorize localities to prohibit firearms, pellet guns, air guns, or other weapons on the premises of facilities operated by Mental Health, Mental Retardation and Substance Abuse Services and Social Services, except when in the possession of licensed security personnel or law enforcement officers. 6. ACHIEVING REVENUE NEUTRALITY FOR LOCAL TELECOMMUNICATION TAXES James K. Spore City Manager City of VirKinia Beach Background: Telecommunication companies have been lobbying the General Assembly for several years to replace local taxing structures for telecommunications with a uniform tax. In the past, telecommunication services were provided by very few companies. Deregulation and technological advancements ushered in new opportunities for telecommunications companies. In Virginia Beach, for example, there are more than thirty of these companies compared to only 2 ten years ago. Each local government in Virginia imposed its own 7 unique telecommunication taxing structure, and the telecommunications companies believed this myriad of tax structures represented a burden to this growing industry. From the perspective of local governments, the existing taxing structure was not suitable for capturing the evolution in deregulation and technology either. For example, Vonage's voice-over-internet-protocol (VOIP), was not subject to the existing telecommunications tax, nor was satellite TV. Both of these were siphoning business from traditional telecommunication/cable companies, and, subsequently, tax revenue from localities. Further, it appeared that more people, particularly those who are young and single, were canceling their land-line service and using only their mobile service. This is not a case in which the City benefits from an extra cell phone tax; these residents already owned a cell phone. As a result of these two forces, the telecommunications portion of our Utility tax has declined by an average of 3.4% for four consecutive years. Cable revenues and cell phone revenues were still experiencing increases while E 911, which is primarily tied to land lines, was also decreasing. Collectively, these forces brought about legislative action. In the 2006 General Assembly session, legislation was enacted (HB 568) that replaced local telecommunication taxes with a statewide Communication Sales and Use Tax of 5 percent, effective January 1, 2007. The legislation eliminated local taxes on telephone services, wireless telephone services, and cable franchise fees!. The Communication Sales and Use Tax of 5 percent is now applied to these services as well as satellite TV and radio, long distance charges, and Internet telephone services. In addition, the legislation replaces the local E-911 fee with a state-wide fee of$0.75 per telephone line. Since January 1, 2007, the 5 percent Communication Sales and Use Tax and the E-911 fee have been remitted to the Virginia Department of Taxation. The Department of Taxation then distributes funds to localities based on the locality's percentage of total FY 2006 state-wide collections of old communication taxes2. The redistribution of these taxes was intended to be revenue neutral to localities. The hope was that revenue from taxes on new sources such as satellite TV and radio will offset the reduced tax rate on current sources, on a state-wide basis. Unfortunately, through the first four months of the new taxing structure, the City's receipts are down $1.264 million from revenue neutrality (assuming no growth from FY '05-'06 to FY '06-'07). Although state audits may uncover underpayments from particularly the first month of this tax, the past three payments are consistently under the level of revenue neutrality by 1 % to 8%. The estimated annualized shortfall on the stabilized revenue is $1.677 million. 1 This legislation also replaced local cable franchise fee agreements but allows existing agreements to continue until their expiration dates; however, these agreements cannot be renewed. (Virginia Beach's agreement with Cox is in place through May 23, 2016.) 2 A portion will be used to cover administrative costs, and another portion for the Virginia Relay Center costs to help the hearing impaired. The telecommunications taxes and fees collected statewide from local governments for the July 1, 2005 through July 30, 2006 totaled $451.6 million, of which Virginia Beach's share comprised $28.2 million, or 6.25%, In the future, Virginia Beach will receive 6.25% of the total to be distributed 8 Our preliminary analysis is that revenue neutrality is being roughly achieved for residential telecommunication taxes, but not on the commercial side, where our local rate was reduced from 20% (with a cap) to 5% (with no cap). Also, the state's E-9ll rate of only $.75 is substantially below the City's previous rate of$2.60. Request: The legislation (HB 568) was supported by localities because it was portrayed as revenue neutral. Therefore, the City urges the General Assembly to modify the tax structure to achieve the promised revenue neutrality. 7. DEFINITION OF "FIREARMS" Chief A.M. Jacocks Police Department Background: Arrests and successful prosecution of cases involving firearms and similar weapons are being seriously hampered by the various definitions of what constitutes a "firearm" under the different code sections. Virginia Code 918.2-282 (Brandishing) incorporates language for firearms, air or gas operated weapons or objects similar in appearance. A "firearm" is defined as something that expels a projectile due to the explosion of a combustible material. Unfortunately, Virginia Code 9918.2-308 (Concealed Weapon), 18.2-308.1 (Possession of a firearm on school grounds), and 18.2-308.2 (Possession of a firearm by a convicted felon) only incorporate language defining a "firearm" and do not address weapons powered by air or gas or items that look identical to a defined firearm. There have been incidents where officers observe what they believe to be firearms only to discover they are air or gas-operated weapons similar in appearance to "firearms." Secondly, there have been numerous robberies committed by offenders carrying air or gas-operated weapons or weapons of like appearance. If an officer locates an air or gas weapon concealed on an offender, the officer is unable to charge the offender with carrying a concealed weapon because the weapon does not fall under the definition of a "firearm." Also, if an offender takes an air or gas weapon onto school grounds, the offender cannot be charged with carrying a "firearm" on school grounds, as the weapon does not meet the definition of a firearm. 9 Request: The City requests that Virginia Code g 18.2-308, S 18.2-308.1 and S 18.2-308.2 be amended to incorporate language adding air or gas-operated weapons, or objects similar in appearance, to the list of prohibited items. 8. REIMBURSEMENT FOR TRANSPORTATION DURING CIVIL ADMISSIONS Chief A.M. Jacocks Police Department Background: Law enforcement agencies incur expenses for fuel, vehicle maintenance, and employee overtime due to the requirements of Virginia Code S 37.2-810, which requires law enforcement agencies to transport persons subject to a magistrate's temporary detention order ("TDO"). There is currently a mechanism in place to cover transportation costs of these subjects under certain circumstances. Virginia Code S 37.2-829 provides: "In cases where the sheriff of the jurisdiction of which the person is a resident is more than 100 miles from the nearest boundary of the jurisdiction in which the proceedings took place, it shall be the responsibility of the sheriff of the latter jurisdiction to transport the person. The cost of transportation of any person so applying or certified for admission pursuant to 937.2-814 or 937.2-821 shall be paid by the Commonwealth from the same funds as for care in jail." Law enforcement agencies other than sheriff s departments receive no reimbursement from the Commonwealth for these transportation costs. The Virginia Beach Police Department has been required to transport subjects from Virginia Beach to as far away as Richmond, Fredericksburg, Petersburg, the Eastern Shore, and Staunton. Request: The City requests that all transportation costs incurred by law enforcement agencies during the TDO process under Virginia Code S 37.2 -810 be reimbursed to cover the costs of transportation. 9. SMOKE-FREE RESTAURANTS City Council City of Virginia Beach Background: City Council previously has requested that the General Assembly prohibit smoking in restaurants statewide or to enact legislation to enable localities to prohibit smoking in restaurants by local ordinance. In response to concerns raised during the last legislative session, there recently have been proposals regarding the definition of "restaurants" 10 versus "eating establishments." "Restaurants" are closed spaces serving food, and "food establishments" would be food carts and other outdoor vendors where smoking would be allowed. The City Council supports this legislation in the interest of public health, not only for the citizens who might want to go to a smoke-free establishment, but also for hospitality workers who are exposed to secondhand smoke. Request: The City requests that the General Assembly prohibit smoking in restaurants statewide or enact legislation to enable localities to prohibit smoking in restaurants by local ordinance. 10. CREATION OF A STATE INSURANCE "WIND POOL" City Council City of Virginia Beach Background: Property owners in Virginia Beach, particularly at the oceanfront, are able to purchase insurance for wind damage from the secondary insurance market at high rates and with high deductibles. Many other coastal states have established a "wind pool" insurance program that is available in specific geographic areas, and the resulting policies have been provided at more reasonable rates and with more reasonable deductibles. Wind has become, to most insurance carriers, the biggest risk in the Virginia Beach area. A $25 million piece of property could have a two percent wind deductible making the deductible payment $500,000. This is in great contrast to the more reasonable $5,000 deductible that was available just a few years ago. The wind insurance premium increases must also be considered as many Virginia Beach businesses are being forced to pay 300 percent increases. Request: The General Assembly is requested to pass legislation to create a state insurance "wind pool" so that wind damage insurance can be provided at a more reasonable cost and with lower deductibles. 11 CITY OF VIRGINIA BEACH 2008 FUNDING ITEMS 1. BRAe FUNDING James K. Spore City Manager City of Virginia Beach Background: The City of Virginia Beach and the Commonwealth of Virginia have been partnering to address the concerns raised by the Base Realignment and Closure Commission (BRAe) in 2005. This partnership has included cost-sharing of a $15 million purchase of a property in the flight path for NAS Oceana in 2005. Subsequent to that the City established a policy of spending $7.5 million per year in perpetuity to comply with the BRAC Order. The expectation is that the Commonwealth will provide a matching amount of funds to buy land and reduce density in the APZ and Clear Zone around NAS Oceana and also in the interfacility traffic area between Oceana and Fentress. There are also some overhead costs involved in marketing/managing the properties purchased with these funds. In the current biennium the City has been successful in receiving a grant for $7.5 million per year from the Virginia National Defense Industrial Authority through its Military Strategic Response Fund Appropriations. The General Assembly has appropriated substantial funds to this organization which is used to address BRAC issues. The City plans to continue its policy of spending $7.5 million per year and requests that the General Assembly provide a matching amount. Request: Request that the General Assembly provide funds either directly to the City of Virginia Beach for the BRAC Compliance Plan in the amount of $7.5 million per year over the biennium or to direct that those funds flow through the Military Strategic Response Fund of the Virginia National Defense Industrial Authority. Providing these funds will send a strong message to the U.S. Navy that the Commonwealth and City of Virginia Beach are serious about preserving NAS Oceana. The City would also wish to have the General Assembly direct NVIDA to allow the funds to be used in the Interfacility Traffic Area. 12 2. NEED FOR ADDITIONAL GROUP-HOME BEDS IN THE LOCALITY FOR YOUTH NEEDING OUT-OF-HoME PLACEMENT Dr. Terry Jenkins Department Director Department of Human Services Background: Efforts have been under way for the last several years to develop a 12-bed Group Home adjacent to the Juvenile Detention Center for teens needing out of home placement. This site has been approved previously and a conditional use permit was issued, however, funding for construction remains a need. The proposed facility would become a city- owned building, to be operated by the Department of Human Services directly or via contract with an approved provider, setting up a fee structure with the Comprehensive Services Act to cover the operational costs using child-specific billing for services. The adolescents served would be CSA-mandated older adolescents in foster care, and there would be some capacity to accept court-involved youth utilizing Juvenile Court Services and other funding sources for non-mandated youth. HB 577 now requires CSA to justify out-of-jurisdiction placements. In FY 2005, Virginia Beach youth were served in thirteen (13) Group Homes outside the city limits at a cost of $1,036,542. Development of this site would better enable us to serve youth within the city limits. We would also build in mental health services provided by Human Services as needed. Funding was requested in the amount of $1,000,000 several years ago for this project. Due to rising construction costs, this estimate has nearly doubled. Request: The General Assembly is requested to approve an appropriation of $1.9 million dollars for the construction of a 12-bed facility to be used as a group home for CSA-mandated and non-mandated youth needing out-of-home placement. Operational costs would be paid with CSA and Juvenile Court Services funds and other fee revenue. 3. CSA ADMINISTRATIVE ALLOCATION Dr. Terry Jenkins Department Director Department of Human Services Background: The funding formula to carry out the provisions of the Comprehensive Services Act defines the formula for local administrative costs based upon pool allocations from 1997. The maximum allocation any locality can receive for administrative costs is $50,000. This amount has not increased in the past eight years, despite continuing increases in the oversight responsibilities of CSA. FY 06 expenditures for CSA in Virginia Beach were 13 $8,541,406, which required a supplemental request of additional state and local dollars. For FY 07, the CSA allocation is $11,748,425. Covering additional administrative costs on top of the local share of any supplemental request for child-specific services is an undue hardship. Request: The General Assembly is requested to amend Title 2.2, Chapter 52 of the Code of Virginia to eliminate the maximum administrative allocation of $50,000 in order to improve the ability of localities to meet the administrative requirements of the CSA and to permit a maximum amount equal to 2% of the allocation in the amount of $234,968, to be used for administrative costs. 4. SUPPORT FOR ADDITIONAL STATE GENERAL FUND DOLLARS FOR CSB PROGRAMS Dr. Terry Jenkins Department Director Department of Human Services Background: There continues to be substantial need in the community for mental health, mental retardation and substance abuse services, as evidenced by growing waiting lists for community-based care. There also continues to be substantial needs in child-care, housing, employment, health care, and transportation for low-income and disabled families. Request: The City of Virginia Beach is requesting that the General Assembly fully fund the mental health, mental retardation, and substance abuse system to meet the needs of children and adults on waiting lists for services. Additionally, the City requests that funds be made available to meet the needs of low- income families to include child care, affordable housing, employment, health care, and transportation. 5. FUNDING FOR PUBLIC HEALTH SERVICES Venita Newby-Owens, M.D., M.P.H. Department Director Department of Health Background: Costs to provide much needed services have steadily increased in Virginia Beach for public health. These include not only the traditional services to indigents, but also 14 services relating to vector control, West Nile Virus, and weapons of mass destruction. The dollars provided by the Commonwealth have become more inadequate over the years, and the disparity between Virginia Beach per capita funding for public health care is woefully inadequate compared to other cities. In order to improve child health and school readiness and to prevent child abuse and neglect, equalized funding is requested. Request: The General Assembly is requested to fully fund the Virginia Beach Public Health Department and equalize funding for Virginia Beach on a per capita basis to match Norfolk and Portsmouth. 6. VIRGINIA BEACH LIFELONG LEARNING CENTER (JOINT USE LIBRARY: A PARTNERSHIP BETWEEN THE CITY OF VIRGINIA BEACH AND TIDEWATER COMMUNITY COLLEGE- VIRGINIA BEACH CAMPUS) Marcy Sims Department Director Department of Public Libraries Background: Planning for the Tidewater Community College (TCC)/City Joint Use Library began in 2001 when it was realized that the City of Virginia Beach was planning the construction of a branch library directly across Rosemont Road from the site of TCC's proposed Learning Resource Center. City and TCC staff researched other collaborative joint use library projects throughout the country, identified the factors for success of those projects and engaged the consulting services of architects and planners of perhaps the most successful of joint library projects, San Jose State University and City of San Jose Joint Use Library. More than 60 representatives from TCC, Old Dominion University, Norfolk State University, City of Virginia Beach, Virginia Beach City Public Schools and the community met in facilitated meetings over the course of a year, culminating in the publication of a report titled Virginia Beach Lifelong Learning Center: Joint Use Library Feasibility Analysis, which is available for review. The vision for this facility is not just an academic library nor a public library, but rather a community lifelong learning center open to all: students, faculty, preschoolers and their parents, teens, seniors, and self-directed learners of all ages. TCC benefits by broader exposure of the opportunity for classes and degree programs to the thousands of people who use the public library and who may feel that higher education is beyond their means. Citizens benefit by experiencing a library with greater depth and breadth of collections, services, technology resources and longer hours of service. The Commonwealth would benefit by establishing an efficient model of library collaboration that could be replicated in other communities. 15 Request: The General Assembly is requested to include funding of $46 million in the budget for the 2008-2010 biennium for Tidewater Community College's share of the Joint Use Library. The City of Virginia Beach has approved the City's share of the capital costs, which is approximately $10 million. 7. PLEASANT HALL PURCHASE Lynn Clements Department Director Museums Background: Pleasant Hall is a circa 1769 historic building originally the residence of local merchant George Logan. It is located on Princess Anne Road one block west of the Witchduck Road/Kempsville Road intersection. It was restored in the 1990s, a project that included construction of a modem addition containing a large assembly space, rest rooms, etc. The building is the most visible and recognizable of the two surviving colonial era buildings in what was the Kempe's Landing settlement. It is listed on the National Register of Historic Places (1973) and is most famous for having served briefly as the headquarters for Virginia Colonial Governor Lord Dunmore in 1775. The Princess Anne/Witchduck intersection re-alignment road project is moving toward construction in 2009/2010. It will move heavily traveled Princess Anne Road from in front of Pleasant Hall to behind the Episcopal Church, which is currently across Princess Anne Road from Pleasant Hall. A new land use plan - the Historic Kempsville Master Plan - for the area around the intersection is being promoted by the Departments of Planning and Economic Development. Pleasant Hall is the historical cornerstone of this proposed mixed-use redevelopment. Request: The City of Virginia Beach would like to purchase Pleasant Hall and the cost is $1 million. The City would match the Commonwealth's commitment of $500,000 in order to purchase the house and property. This commitment would make Pleasant Hall the centerpiece of the Historic Kempsville Master Plan as a historic house museum and visitor center. The building would be open for tours, special programs and events. It would also be available for rental for social functions and receptions. Information services would be provided to orient visitors to the new "historic" Kempsville area. The City of Virginia Beach's Department of Museums would have a few years to increase operations and develop exhibits. It would be anticipated that the formative Virginia Beach Historic Sites Foundation would actively support the efforts to develop a full-time operation. Initial operations in FY08 would be weekend tours and programs 16 plus the social rentals. A special event for the skirmish of Kempe's Landing could be coordinated with the City of Chesapeake for the Battle of Great Bridge. 8. ADAM THOROUGH GOOD HOUSE, FERRY PLANT A TlON HOUSE AND L YNNHA VEN HOUSE HISTORIC PRESERVATION FUNDING FOR ENVIRONMENTAL MONITORING, WINDOWS, CHIMNEYS, PEST CONTROL, ROOFING AND PORCH RESTORATION Lynn Clements Department Director Museums Background: The Virginia Beach Historic Houses request $350,000 to support the preservation of the Adam Thoroughgood House, the Ferry Plantation House and the Lynnhaven House. The City of Virginia Beach acquired the Adam Thoroughgood House in 2003 from the City of Norfolk/Chrysler Museum of Art. The City has executed an agreement (July 2007) with APV A Preservation Virginia for transfer of the Lynnhaven House property within 180 days. The City has stepped forward to preserve these important historic sites, as their previous owners have been unable to keep up with maintenance and preservation needs. Both houses are important architectural treasures representing some of the earliest surviving brick construction in Virginia. The Adam Thoroughgood House (circa 1720) is a National Historic Landmark. It had a major restoration 50 years ago funded by the Adam Thoroughgood House Foundation under the leadership of Henry Clay Hofheimer II. The organization dissolved in the early 1960s after the property was deeded to Norfolk. Upon taking title, Virginia Beach funded emergency masonry repointing. Virginia Beach was awarded a federal grant for a conservation assessment in 2004 and funded an environmental monitoring program as the first step in addressing the report's recommendations. Virginia Beach was also awarded a $150,000 2004 Save America's Treasures Grant and provided the $150,000 match to make additional repairs and replace the building's electrical and HV AC systems. The Association for the Preservation of Virginia Antiquities restored the Lynnhaven House (circa 1725) in the 1970s. It is listed on the National Register of Historic Places. A federally funded conservation assessment was also done for the Lynnhaven House in 2004. Very little has been done to address the problems found during the assessment. With the City's acquisition at the beginning of 2008, there are significant building problems that need to be addressed. The City acquired the Ferry Plantation House in 1996 at the behest of a citizen's organization, "The Friends of Ferry Plantation House, Inc.," that planned to open the house to the public for educational purposes. The "Friends" agreed to assume 17 responsibility for the restoration and maintenance of the circa 1830 building, which had been boarded up for nearly a decade. The City provided a $68,550 capital improvement appropriation from a related land sale to help get them started. A TEA-21 grant ($115,000) was received for stucco restoration and that project is in the design stage. The "Friend's" efforts have proven to be worthwhile as the building was placed on the National Register of Historic Places in 2005. They now open the building to the public three days per week. With everything that has been accomplished, the volunteer organization has not been able to keep up with all of the building's maintenance needs. Request: The Virginia Beach Historic Houses are asking the General Assembly for $350,000 to make needed repairs and preservation improvements to the Adam Thoroughgood House, Ferry Plantation House and the Lynnhaven House. The funding will provide for implementation of a 12 month environmental monitoring program at the Lynnhaven House, including an analysis/diagnostic report from a professional firm; replacement of the cedar roof at Lynnhaven House; pest control for powder post beetles and other pests at the Lynnhaven House and Ferry Plantation House; repairs and repointing, both exterior and interior, of two massive chimneys at the Lynnhaven and Thoroughgood houses to eliminate water infiltration during rain storms and falling brick and mortar; repair/replacement to the lead came casement windows at these two houses and installation of an ultraviolet filter system for the windows; and replacement of the porches at Ferry Plantation. Implementation of these preservation repairs will assist the City of Virginia Beach in catching up to the maintenance needs of these three significant historic houses. 9. VIRGINIA AQUARIUM & MARINE SCIENCE CENTER - OCEAN IN MOTION AQUARIUM TRUCK Lynn Clements Department Director Museums Background: The Virginia Aquarium & Marine Science Center requests $900,000 to support the Ocean in Motion program, which carries marine science education to schools and festivals across the Commonwealth of Virginia. The current Ocean in Motion aquarium truck has been bringing live marine animals and interactive programming to students since 2001. In that time, we have reached 175,377 students from the Coastal Plain to far reaches of Southwest Virginia. In 2006, Ocean in Motion visited 75 schools and 25,213 students. We traveled to more than 55 Virginia cities and covered 21,900 miles. Investing in the Ocean in Motion program will ensure that students across the state have the continued opportunity to see some of what makes the Chesapeake Bay and Atlantic Ocean special places, even if they can't leave their school grounds. As we face new environmental challenges such as global warming, schools must have resources such as 18 Ocean in Motion that enhance their science curriculum and inspire future scientists. We provide an experience that no textbook can duplicate - sea stars and horseshoe crabs to touch in the classroom and native fishes to watch aboard the truck. Without this type of experiential learning, students do not build emotional connections to the bay and ocean, only intellectual ones. According to Richard Louv in his book Last Child in the Woods: Saving Children from Nature Deficit Disorder, individuals with emotional connections to the environment are the ones most likely to develop a strong stewardship ethic. This funding would allow Ocean in Motion to continue as a key educational component for fostering stewardship of the Chesapeake Bay and the ocean in our young people. This traveling aquarium allows aquarium educators to reach students who might not have the opportunity to see the ocean or the Chesapeake Bay in person. This experience is critical to developing "bay and ocean literacy" in our citizens. Ocean literacy is an understanding of the ocean's influence on you and of your influence on the ocean. If you are ocean-literate, you understand how the ocean functions, can communicate about the ocean in a meaningful way, and are able to make informed decisions about the ocean and its resources. This concept was developed in 2004 by 100 ocean science and education professionals under the guidance of The National Geographic Society and NOAA. The work addresses the state of ocean and aquatic science in the classroom: It is one of the most "under-taught" subjects in K-12. The current reality is that citizens are not properly educated to deal with issues related to the ocean and to the Chesapeake Bay, both of which are important resources to the state. Request: The Virginia Aquarium is asking the General Assembly for $900,000 to purchase a replacement Ocean in Motion vehicle outfitted with state-of-the art aquariums; upgrade the vehicle's on site "docking" facilities; expand the holding systems for marine species used in outreach; and support the staffing critical to the success of the program. Mileage and salt water have begun to take their toll on the existing vehicle, which will need to be replaced within two years. We will add a large "truck port" to protect the vehicle from the elements and provide shelter for staff doing weekly maintenance. We plan to increase the number of animals carried aboard the truck and will need additional holding space for them in our upcoming Marine Animal Care facility. Finally, the success of the program hinges on having qualified staff to coordinate with schools, conduct the programs, handle routine vehicle maintenance, and provide care to the animals and life- support systems. 19 10. SHERIFF'S WORK RELEASE FACILITY Dave Hansen Chief of Finance & Technology City Manager's Office Background: Currently the City of Virginia Beach Sheriffs Work Release Facility is housed in a leased space and the Sheriffs Workforce is housed in a landscape services building. While the City in cooperation with the Commonwealth completed a major jail expansion, there is still a need for additional bed space for prisoners. Co-locating both the Sheriffs Work Release and Workforce programs in a new facility would allow these programs the space necessary to operate at greater efficiencies. Request: The total estimated cost for design, site selection and construction of a facility is $6.7 million. Total project costs are subject to change pending the completion of the design work and bid of the project. In 2005-2006, $600,000 of City funding was allocated for preliminary design work and site selection of the facility. State funding for this project was recently eliminated from the biennial budget and the City is requesting that in the interest of public safety the General Assembly fund at least 25% of the total project. This can be an authorization with funding to come as a reimbursement in FY 2010-11. 11. VIRGINIA BEACH CONVENTION CENTER FUNDING James Ricketts Department Director Convention & Visitors Bureau Background: In 2005, the City of Virginia Beach opened the first phase of the new Virginia Beach Convention Center. The new facility replaces the Pavilion Convention Center and was designed by the architectural firm of Skidmore, Owings & Merrill (SaM). The old center had a total of 188,000 square feet and lacked the amenities essential for today's meeting planners. The new facility has a total of 516,000 square feet. This includes 150,000 square feet of exhibition space, over 31,000 sq. ft. of ballroom space and approximately 29,000 sq. ft. of meeting space. The total cost of the facility is $202.571 million. The new convention center is putting Virginia on the map as a viable convention state. According to the Feasibility Study conducted by PricewaterhouseCoopers, the Commonwealth will realize the following economic benefits: Incremental tax revenues 20 (in 2002 dollars) $1.2 to $2 million annually, between 900 and 1,500 additional jobs and from $27.7 million to $44.8 million in incremental direct expenditures new to the Commonwealth (not a transfer from other localities in the Commonwealth). The economic impact for Hampton Roads is $50.5 million to $79.3 million in incremental direct expenditures and between 1,700 and 2,700 new jobs. This is in addition to the $2.1 million incremental tax revenue to the City of Virginia Beach, $97 million in sales and 1,900 additional jobs. Request: The General Assembly is requested to provide the remainder of $10 million, beyond what has been appropriated. This is in keeping with the benefits to the Commonwealth based on the amount of state tax revenue that will be generated from the new facility over a ten- year period and the precedent set in funding the Richmond Convention Center. 12. SANDLER CENTER FOR THE PERFORMING ARTS Emily Spruill Cultural Arts Coordinator Office of Cultural Affairs Background: The Sandler Center for the Performing Arts, a professional-quality, 1,300-seat, 84,000- square-foot facility, will be the cultural centerpiece of Virginia Beach, located at the core of the City's emerging Town Center. When it opens in November 2007, the center will have enlarged spaces for performances and public and performer support, and it will give the opportunity to expand the type and diversity of the performing arts programs in Hampton Roads and the State of Virginia. The $47-million facility, built under the General Assembly's PPEA process, will have a full range of amenities, meeting the needs of today and tomorrow. As a tangible demonstration of its commitment, the Virginia Beach City Council dedicated $35 million of City funds to the project. Fundraising for capital and an endowment fund is being led by the Virginia Beach Performing Arts Center Foundation, a non-profit organization spearheaded by some of the City's top civic and business leaders. The Sandler Center for the Performing Arts will have a dramatic impact on the State of Virginia's tax base, generating over $2.2 million for the construction phase and $35,500 in annual state tax revenue. We ask the state to strengthen its commitment and investment to the future of this cultural landmark and to the City as a whole, by appropriating $300,000 for the operations of the Center. 21 The new center will become a defining asset for social development for the City and Hampton Roads. It will become a focal point for social activities from education to the arts and entertainment and will illustrate the region's dedication to furthering the cultural life of its citizens. Request: The General Assembly is requested to appropriate $300,000 needed for the operations of the Sandler Center for the Performing Arts. 22 CITY OF VIRGINIA BEACH 2008 COMMUNITY GROUP ITEMS The following requests were made during the City's outreach process to the community groups and came from civic leagues and associations as well as interested individuals from the community. 1. ADEQUATE PUBLIC FACILITIES Community Groups City of Virginia Beach Background: Adequate public facilities statue is a perennial issue with the General Assembly. Request: Request that there be a requirement that rezoning not be granted until adequate public facilities are in place to support existing and the new development or that these infrastructures be provided for by the developer. 2. FUNDING FOR MASS TRANSIT Community Groups City of Virginia Beach Background: Currently 80% of the transportation trust fund goes to roads. 14.7% goes to mass transit and the remaining percentage is split among ports and airports. Increasing the amount from 14.7% to 19% that would go to mass-transit, while holding the other modes like rail and ports and airports harmless, would cause a like decrease in the amount of money available for road construction. Request: Request to increase the amount of money from the transportation trust fund to the mass transit fund from 14.7% to 19%. 23 3. PUBLIC MEETING NOTICE & P ARTICIP A TION Community Groups City of Virginia Beach Background: Public meetings are being called and held at times and places that prevent those who work and have other obligations during the day from attending, and likewise public meetings have been held at the state and local level where public is invited but has no avenue to address the board, commission or legislative body on the issue. There is a need for more public input on the process. Request: Hold meetings requesting public input at times after 7:00 p.rn. on weeknights and at central locations, i.e., those with public transportation access. Furthermore, a standard format should be developed for the public's ability to comment. 4. MOTORIZED VEHICLE USE BY MINORS Community Groups City of Virginia Beach Background: Sales of motorized vehicles, including motorized skateboards and mini bikes, have increased in recent years. Many of the persons targeted for purchasing these vehicles are minors under 10 years of age. These underage drivers have no training or understanding of traffic laws of consequences or operating these vehicles. Request: Remove loopholes from laws involving the use of motorized vehicles on streets and roadways by minors. Restrict sales of such vehicles to licensed outlets that comply with standards for vehicle sales. Such vehicles should only be sold to adults and disclosure statements should be signed off by the adult acknowledging responsibility to restrict the use of such vehicles to off-road environments. Parents should be held responsible. 24 5. ENFORCEMENT OF ENVIRONMENT AL LAWS Community Groups City of Virginia Beach Background: Violations of state and local laws on illegal dumping, littering and the Chesapeake Bay Preservation Act are not being prosecuted and as a result perpetrators of such crimes are faced with little to no sanctions for their crimes. Cost of remediation and cleanup of communities are being warned by the municipality, and laws against littering and illegal dumping and non-permitted destruction of wetlands are ignored. Request: Provide legislation and judicial support for enforcement and persecution of violators with the goal being to correct behavior and have violators pay to remediate areas damaged and destroyed by their acts. 6. EQUALIZATION OF PENAL TIES FOR DRIVING Community Groups City of Virginia Beach Background: This is related to the enhanced civil penalties portion of the HB 3202 passed by the General Assembly. Request: Amend the law to provide equity to in-state versus out-of-state violators or eliminate the penalties for Virginia residents. This is currently under court review. 7. PUBLIC DISCLOSURE OF HALF-WAY OR TRANSITIONAL HOUSING Community Groups City of Virginia Beach Background: Over the past few years there have been incidents involving opportunities for additional housing communities. The public is not aware of contractor-operated facilities providing services in the City which are located in their neighborhoods. These are primarily mental retardation and mental health group homes that are being opened and operated without knowledge of the neighborhood homeowner's association, etc. 25 Request: Direct that state departments providing funding for programs and engaging in dialogue including the public and all interested agencies to provide input and publicity on such housing. Legislation should include all agencies and non-profits that provide services under contracts whether federal, state or local law enforcement, mental health and mental retardation departments. 8. BAYS IDE RECREATION CENTER Community Groups City of Virginia Beach Background: There is a request for the City to lease the former Farmer Jack Grocery in the Bayside area and to provide an interim Community Recreation Center until a permanent Bayside Recreation Center can be constructed. Request: Members of the House Appropriations Committee representing Norfolk and Virginia Beach have suggested that the City could request reimbursement for the expenses to convert the former grocery into an interim recreation center. 9. WETLANDS BOARD Community Groups City of Virginia Beach Background: There is lack of funding from the Virginia Institute of Marine Science for them to provide technical support to the Wetlands Board across the state. Request: Provide more funding to them so that they can provide the required technical support to the Wetlands Boards and other local agencies. 26 - 29- Item V-J.3. RESOLUTION/ORDINANCES ITEM #56930 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED: Ordinance to GRANT a FRANCHISE to ENTERTAINMENT, INC. for the use of City property at the Oceanfront and 15th Street re the operation of the Virginia Beach Fishing Pier. Voting: 10-0 (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 and James L. Wood Council Members Voting Nay: None Council Members Abstaining: Rosemary Wilson Council Members Absent: None Council Lady Wilson ABSTAINED, pursuant to Section 2.2-3115 (E), Code of Virginia. Entertainment, Inc. is a client of Goodman and Company, an accountingfirm. Her husband is a principal in the firm and personally provides accounting services to Entertainment, Inc. Council Lady Wilson's correspondence of October 9, 2007, is hereby made a part of the proceedings. October 9, 2007 City c>f Virgi:rl..ia Beach ROSEMARY WILSON COUNCIL LADY - AT-LARGE PHONE: (757) 422-0733 FAX: (757) 426-5669 In Reply Refer to 0034435 October 9, 2007 Mrs. Ruth Hodges Fraser, MMC City Clerk Municipal Center Virginia Beach, Virginia 23456 Re: Abstention Pursuant to Section 2.2-3115(E), Code of Virginia Dear Mrs. Fraser: Pursuant to the Virginia Conflict ofInterests Act, Section 2.2-3115(E), Code of Virginia, I make the following declaration: 1. I am executing this written disclosure regarding City Council's discussion and vote on an ordinance to grant a franchise to Entertainment, Inc. to operate the Virginia Beach Fishing Pier at 15th Street. 2. Entertainment, Inc. is a client of Goodman and Company, an accounting firm. My husband is a principal in the firm. 3. My husband personally provides accounting services to Entertainment, Inc. 3. I wish to disclose this interest and abstain from City Council's consideration of this matter. Accordingly, I respectfully request that you record this declaration in the official records of City Council. 1304 WREN PLACE, VIRGINIA BEACH, VA 23451 Mrs. Ruth Hodges Fraser -2- October 9, 2007 Re: Abstention Pursuant to Section 2.2-3115(E), Code of Virginia Thank you for your assistance in this matter. Sincerely, ) "' / . ! .I . /;; /(/ ;/_ /'(iJ-UW-C'C L{ ,,-, CL~vC/ Rosemary A. Wilson Councilmember RA W IRRI 1 AN ORDINANCE TO GRANT A FRANCHISE TO 2 ENTERTAINMENT, INC. FOR THE USE OF CITY 3 PROPERTY AT THE OCEANFRONT AND 15TH 4 STREET FOR THE OPERATION OF THE VIRGINIA 5 BEACH FISHING PIER 6 7 8 WHEREAS, on May 11, 1962, the City Council originally granted a twenty- 9 year franchise to Virginia Beach Pier and Amusement Company ("VBPAC") at the 1 0 oceanfront and 15th Street for the construction and operation of a fishing and 11 amusement pier (the "Virginia Beach Fishing Pier"); 12 13 WHEREAS, since the expiration of the original twenty-year franchise, 14 additional five-year franchises and one three-year franchise have been granted to the 15 VBPAC's successor, Entertainment, Inc.; 16 17 WHEREAS, the current franchise has expired and Entertainment, Inc. has 18 expressed a desire to continue to operate the pier and its related facilities; 19 20 WHEREAS, City staff has recommended to the City Council that a 21 franchise be awarded to Entertainment, Inc. for a two-year period; and 22 23 WHEREAS, based on the staff's recommendation and the pier's long-time 24 existence, the City Council finds that granting a two-year franchise for the operation of 25 the Virginia Beach Fishing Pier will promote the public interest and serve to enhance the 26 festive atmosphere at the oceanfront. 27 28 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 29 OF VIRGINIA BEACH, VIRGINIA: 30 31 1. That a franchise is hereby granted to Entertainment, Inc. to operate 32 the Virginia Beach Fishing Pier at its existing location from October 10, 2007 until 33 October 31,2009 in accordance with all terms and conditions thereof. 34 35 2. That the City Manager, or his designee, is hereby authorized to 36 execute the franchise agreement with Entertainment, Inc. in accordance with the 37 Summary of Terms attached hereto. 38 1 39 Adopted by the Council of the City of Virginia Beach, Virginia, on this 40 _9thfl.ayof Or.rohpr ,2007. CA 10330 V:lapplicationslcitylawprodlcycom32lWpdocslD026lP002100040994. DOC R-1 October 2, 2007 APPROVED AS TO LEGAL SUFFICIENC~. . 491) City Attorney 2 Proposed Short-Term Franchise For Virginia Beach Fishing Pier SUMMARY OF TERMS Grantor: City of Virginia Beach Grantee: Entertainment, Inc. Franchise Property: See Exhibit A property designated as "Pier Property" Term: October 10, 2007 through October 31,2009. Franchise Fee: Grantee shall pay to Grantor $14,000 annually, payable on a quarterly basis Responsihilities of Grantee: . shall keep Pier and Pier Property in good condition and repair. . shall provide commercial liability coverage including product liability coverage in the amount of not less than $1,000,000 (CSL). . shall indemnify and hold harmless the Grantor for all claims, damages or losses resulting from Grantee's operation, occupancy and use of the Pier and Pier Property or the conduct of its operation, or resulting from the negligence or intentional acts or omissions of the Grantee. Permitted Uses: . rental and sale of bait and tackle for fishing. . one or more restaurants with a maximum area of 4,600 square feet each. . retail stores engaged in the sale of tourist-related merchandise, goods and/or services. However, the sale oftime shares shall be permitted only from a specified kiosk on the Pier. Rights and Responsihilities of Grantor: . shall have the right to inspect the Pier and the Pier Property at all reasonable times with or without notice to the Grantee. . shall have the right to cancel and terminate the franchise on written notice to the Grantee upon failure of the Grantee to cure a default or a breach of the terms and conditions of the franchise. . shall have the right, with no compensation to the Grantee, to photograph the Pier, including the interior and exterior thereof, any persons on and about the Pier and the name ofthe Grantee's establishments, and to use any such photographs in any of the Grantor's publicity or advertising. Special Conditions: . from November 1 through January 6 each year, the Grantor shall have the right to place on the Pier electric lights, electrical wiring, temporary junctions or fuse boxes and such other equipment needed by Grantor in connection with a holiday light display on the Virginia Beach oceanfront boardwalk of the type currently known as "Holiday Lights at the Beach". . Franchise is assignable upon written consent ofthe City. The City may consent or decline to consent to any such assignment. V :\applications\citylawprod\cycom32\ Wpdocs\D026\P002\00041 006.DOC Exhibit A The pier property, generally known as the "15th Street Pier", extending from the Boardwalk over the sandy beach and into the Atlantic Ocean generally east of 15th Street in the City of Virginia Beach, more particularly described as follows: PIER PROPERTY All that certain strip, tract or parcel of land lying in the City of Virginia Beach, Virginia, lying east of the Entertainment, Inc. Tract (as defined below), being bounded on the west by the Entertainment, Inc. Tract, on the east by the 10w water mark of the Atlantic Ocean, on the north by an extension into the Atlantic Ocean of the northern line of the Entertainment, Inc. Tract, and on the south by the extension into the Atlantic Ocean of the southern line of the Entertainment, Inc. Tract, together with all ways, water courses, riparian rights, privileges and appurtenances to the same belonging. ENTERTAINMENT INC. TRACT All that certain tract, piece or parcel of land, together with the all buildings, appurtenances and riparian rights thereto belonging, including all piers, wharves and structures thereon and extending eastwardly therefrom, located in the City of Virginia Beach, Virginia, and described as follows: Beginning at a point in the eastern line of Atlantic Avenue 92 feet and 6 inches north of the intersection of the northern line of 14th Street with the eastern line of Atlantic Avenue, and running thence northwardly along the eastern line of Atlantic Avenue 289 feet and 6 inches to a point in the eastern line of Atlantic Avenue; thence eastwardly and parallel with 14th Street 150 feet to a point; thence southwardly parallel with Atlantic Avenue 289 feet and 6 inches to a point; thence westwardly parallel with 14th Street, 150 feet to the point of beginning; it being a portion of Block 1 as shown on the plat of property of Norfolk and Southern Railroad dated April 2, 1914, and recorded in the aforesaid Clerk's Office in Map Book 6 at page 320. - 30 - Item V-J.4. RESOLUTION/ORDINANCES ITEM #56931 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED: Ordinance to AUTHORIZE the Commonwealth's Attorney to ACCEPT additional positions from the State Compensation Board; APPROPRIATE $327,330 in additional State revenue; and, TRANSFER $145,212from the General Fund Reserve for Contingencies to their FY 2007-8 Operating Budget. 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: October 9, 2007 1 AN ORDINANCE TO ACCEPT EIGHT POSITIONS FROM 2 THE STATE COMPENSATION BOARD, APPROPRIATE 3 $327,330 IN ADDITIONAL STATE REVENUE, AND 4 TRANSFER $145,212 FROM THE GENERAL FUND 5 RESERVE FOR CONTINGENCIES TO THE FY 2007-08 6 OPERATING BUDGET OF THE COMMONWEALTH'S 7 ATTORNEY'S OFFICE 8 9 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 10 VIRGINIA: 11 12 1. That eight additional full-time positions, including five attorneys, two paralegals, 13 and an office assistant, are hereby accepted from the State Compensation 14 Boa~; 15 16 2. That $327,330 in additional revenue from the state is hereby accepted and 17 appropriated to the FY 2007-08 Operating Budget of the Commonwealth's 18 Attorney's Office to provide funding towards the salaries and fringe benefits of 19 the additional positions, with revenue from the state reflected accordingly; and 20 21 3. That $145,212 is hereby transferred from the General Fund Reserve for 22 Contingencies to the FY 2007-08 Operating Budget of the Commonwealth's 23 Attorney's Office to provide the required match for the salaries and fringe 24 beneftts. 25 26 Requires an affirmative vote from the majority of the members of City Council. Adopted by the Council of the City of Virginia Beach, Virginia on the 9 day of October 2007. APPROVED AS TO CONTENT APPROVED AS TO LEGAL SUFFICIENCY ?~ City Attorney's OffiCY- oAJG. CA 10513 R-3 October 1, 2007 - 31 - None Item V-K. PLANNING ITEM #56932 1. PYONG TUCHO VARIANCE 2. CH&B ASSOCIATES, L.L.P. CONCEPTIONAL SITE PLAN 3. COLLEGE PARK, L.L.C. MODIFICATION OF PROFFERS (Conditional Zoning Approved: 1/23/2007) 4. ST. MICHAEL LUTHERAN CHURCH MODIFICATION OF CONDITIONS (Approved: April 28, 2008) 5. VICTORIOUS LIVING CHURCH CONDITIONAL USE PERMIT 6. WILLIE DONALD MARTIN, JR. CONDITONAL USE PERMIT 7. RAPPAHANNOCK SPORTS, L.L.c. CONDITIONAL USE PERMIT 8.CINGULAR WIRELESS CONDITIONAL USE PERMIT 9. GREG SMITH CONDITIONAL USE PERMIT 10. MATHEWS GREEN ASSOCIATES, L.L.C. CONDITIONAL ZONING 11. KOTARIDES DEVELOPERS CONDITIONAL CHANGE OF ZONING October 9, 2007 - 32 - Item V-K.. PLANNING ITEM #56933 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council APPROVED IN ONE MOTION Items 2, 3, 4, 5, 7 (DEFERRED), 8 (DEFERRED), 9 and I I of the Planning By Consent Agenda. Item K 7 (RAPPHANNOCK SPORTS, L.L.C.) was DEFERRED INDEFINITELY, BY CONSENT) Ite4m K8 (CINGULAR WIRELESS) was DEFERRED, BY CONSENT, forty-five (45) days to November 27,2007.) 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 Council Lady Henley voted a VERBAL NAY on Item K.2. (CH&B ASSOCIATES, L.L.P) Council Lady McClanan voted a VERBAL NAY on Item K.11 (KOTARIDES DEVELOPERS) October 9, 2007 - 33 - Item V-K.l. PLANNING ITEM #56934 The following registered in SUPPORT: Attorney Les Watson, One Columbus Center, Suite 1100, Phone: 497-6633, represented the Chofamily As he has for the last twenty-five (25) years. It is the intent of the applicant to subdivide the existing lot into two lots and develop the new lot with a single-family dwelling. The applicant has submitted a revised subdivision plat that reduces the size of the proposed house. Individual letters from ten (10) residents and twenty-five (25) signatures of adjacent residents in SUPPORT were presented and are hereby made a part of the record. Petition containing over 402 signatures in SUP PORT from citizens of Virginia Beach was also presented and made part of the record. Richard Bartlett, 5316 Brockie Street, Engineer, represented the applicant Don Rhodes, former Council Member and Judge, 1251 North Inlynnview, Phone: 481-9192, resident of the area since 1975, registered in SUPPORT. Dee Rose, 1249 North Inlynnview Road, Phone: 321-5235, Gregory Weate, 2601 Britannica Place, Phone; 412-2213 Mark M Kenney, 2604 Britannica Place, Phone: 481-6251, Lewis Mitchell, 3500 Cedar Grove Circle, Phone: 340-4377 Glenda Abraham, 3666 Hill Breeze Road, Phone: 486-1934 Captain David Price, USN Retired, 2167 Lords Landing, Phone: 496-4014 The following registered in OPPOSITION: Gary Tuthill, 1220 North Innlynview Road, Phone: 496-8628, presented letter and Petition of adjacent residents in OPPOSITION. Said information is hereby made a part of the record. Armand Beaudoin, 1205 North Inlynnview Road, Phone: 620-1283 John Kuklica, 1217 North Inlynnview Road, Phone: 621-5200 Upon motion by Councilman Diezel, seconded by Councilman Dyer, City Council APPROVED Variance to ~ 4.4(b) of the Subdivision Ordinance that requires all newly created lots meet the requirements of the City Zoning Ordinance (CZO) for PYONG TU CHO: Appeal to Decisions of Administrative Officers in regard to certain elements of the Subdivision Ordinance, Subdivision for Pyong Tu Cho. Property is located at 1212 North Inlynnview Road (GPIN 1498459841). DISTRICT 5 -LYNNHAVEN October 9, 2007 - 34 - Item V-K.l. PLANNING ITEM #56934 (Continued) Voting: 8-3 Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, , Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin and Ron A. Villanueva Council Members Voting Nay: Vice Mayor Louis R. Jones, Rosemary Wilson and James L. Wood Council Members Absent: None October 9, 2007 - 35 - Item V-K.2. PLANNING ITEM #56935 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED the application of CH&B ASSOCIATES, L.L.P. re concevtual Site Plan addressing the site and building design elements consistent with the existing commercial designation at the Northeast corner of Princess Anne Road and South Plaza Trail Application of CH&B Associates, L.L.P. for approval of a conceptual site plan addressing the site and building design elements consistent with the existing commercial designation of property at the northeast corner of Princess Anne Road and South Plaza Trail in accordance with proffers previously approved by City Council on September 9, 2003. (GPIN -1476612829). DISTRICT 2 - KEMPSVILLE The following conditions shall be required: 1. The site shall be developed in substantial conformance with the concept plan entitled "Brenneman Farm Retail, Master Plan, Option J", dated August 30, 2007, submitted to and onfile with the Department of Planning. 2. The site shall be landscaped in substantial conformance with the concept plan entitled "Brenneman Farm Retail, Conceptual Planting Plan, Option J", dated August 15, 2007, submitted to and on file with the Department of Planning. The streetscape plantings and features shall consist of the plantings described on such plan and as depicted on the rendering entitled "Conceptual Perspective, October 12, 2006", by Hines Design, submitted to and on file with the Department of Planning. 3. The architectural design elements, exterior material finishes, and exterior colors of all buildings located on the site shall be substantially as shown on the renderings submitted to and onfile with the Department of Planning. 4. The primary identification signs for the development shall be located at the points shown on the plan described in Condition 1. Such signs shall be monument-style and shall be substantially as depicted on the rendering entitled "Conceptual Perspective, October 12, 2006", by Hines Design, submitted to and on file with the Department of Planning. In no case, however, shall signage for the site exceed the requirements of the City Zoning Ordinance. 5. Identification signs for the individual businesses within the buildings shown on the plan described in Condition 1 shall be located on the buildings substantially as shown on the renderings submitted to and on file with the Department of Planning. There shall be no neon signs or neon accents installed on any wall area of the building, on or within any windows and / or doors, awnings, light poles or any other portion of the site. This Ordinance shall be effective in accordance with Section 107 (j) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Ninth of October Two Thousand Seven October 9, 2007 - 36 - Item V-K.2. PLANNING ITEM #56935 (Continued) Voting: 10-1 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, 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: Barbara M Henley Council Members Absent: None October 9, 2007 - 37 - Item V-K.3. PLANNING ITEM #56936 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council MODIFIED conditions upon application of COLLEGE PARK, L.L.C to cover the parking spaces with a "carport" and add a maintenance structure at 6226 Providence Road (approved by City Council on January 23, 2007). ORDINANCE UPON APPLICATION OF COLLEGE PARK, L.L.C.for a MODIFICATION OF CONDITIONS on a request approved by City Council on January 23, 2007 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGNIA BEACH, VIRGINIA Ordinance upon application of College Park, L.L.c. for a Modification of Conditions on a request approved by City Council on January 23, 2007. Property is located at 6226 Providence Road (GPIN 1456335185). DISTRICT 1- CENTERVILLE. The following condition shall be required: 1. An Agreement encompassing proffers shall be recorded with the Clerk of Circuit Court. 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 Ninth of October Two Thousand Seven 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 October 9, 2007 CITY OF VIRGINIA BEACH INTER-OFFICE CORRESPONDENCE In Reply Refer To Our File No. OF-6842 FROM: Leslie L. Lilley B. K~YWilSO~ DATE: September 26, 2007 DEPT: City Attorney TO: DEPT: City Attorney RE: Conditional Zoning Application; College Park, LLC The above-referenced conditional zoning application is scheduled to be heard by the City Council on October 9,2007. I have reviewed the subject proffer agreement, dated June 29,2007 and have determined it to be legally sufficient and in proper legal form. A copy of the agreement is attached. Please feel free to call me if you have any questions or wish to discuss this matter further. BKW/als Enclosure cc: Kathleen Hassen PREPARED BY: II sYns. ROURDON. ADrnN & liVY. P.c. FIRST AMENDMENT TO PROFFERED COVENANTS, RESTRICTIONS AND CONDmONS COLLEGE PARK, L.L.C., a Virginia limited liability company TO (PROFFERED COVENANTS, RESTRICTIONS AND CONDmONS) CITY OF VIRGINIA BEACH THIS AGREEMENT, made this 29th day of June, 2007, by and between COLLEGE PARK, L.L.C., a Virginia limited liability company, Grantor; and THE CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, Grantee. WITNESSETH: WHEREAS, the Grantor is the owner of that certain parcel of property located in the Centerville District of the City of Virginia Beach, Virginia, containing a total of approximately 4.00 acres as more particularly described in Exhibit "A" attached hereto and incorporated herein by reference, which parcel is referred to herein as the "Property"; and WHEREAS, the Grantor has initiated a modification to a conditional amendment to the Zoning Map of the City of Virginia Beach, by petition addressed to the Grantee so as to modify conditions to the Zoning Classification of the Property; and WHEREAS, the Grantor has requested Grantee to permit this modification of the previously proffered Covenants, Restrictions and Conditions dated June 25, 2006 (hereinafter "2006 Proffers"), to reflect amendments applicable to the land use plan on the Property; and WHEREAS, the Grantee's policy is to provide only for the orderly development of land for various purposes through zoning and other land development legislation; and GPIN: 1456-33-5185 1 WHEREAS, the Grantor acknowledges that the competing and sometimes incompatible development of various types of uses conflict and that in order to permit differing types of uses on and in the area of the Property and at the same time to recognize the effects of change that will be created by the proposed modification of conditions to the zoning, certain reasonable conditions governing the use of the Property for the protection of the community that are not generally applicable to land similarly zoned are needed to resolve the situation to which the application gives rise; and WHEREAS, the Grantor has voluntarily proffered, in writing, in advance of and prior to the public hearing before the Grantee, as a part of the proposed modification to the existing zoning conditions with respect to the Property, the following reasonable conditions related to the physical development, operation, and use of the Property to be adopted, which conditions have a reasonable relation to the proposed modification and the need for which is generated by the proposed modification. NOW, THEREFORE, the Grantor, its successors, personal representatives, assigns, grantees, and other successors in title or interest, voluntarily and without any requirement by or exaction from the Grantee or its governing body and without any element of compulsion or quid pro quo for zoning, rezoning, site plan, building permit, or subdivision approval, hereby makes the following declaration of conditions and restrictions which shall restrict and govern the physical development, operation, and use of the Property and hereby covenants and agrees that this declaration shall constitute covenants running with the Property, which shall be binding upon the Property and upon all parties and persons claiming under or through the Grantor, its successors, personal representatives, assigns, grantees, and other successors in interest or title: 1. Proffer number "1" in the 2006 Proffers is amended to read: When the Property is developed, it shall be substantially in accordance with the Site Layout Plan entitled "THE RENAISSANCE SENIOR APARTMENTS, 6226 Providence Road, GPIN 1456-33-5185", dated 03/19/07, prepared by Engineering Services, Inc., which has been exhibited to the Virginia Beach City Council and is on file with the Virginia Beach Department of Planning ("Site Plan"). 2. When the Property is developed, the 44 parking spaces designated on the PREPARED BY: Site Plan as "COVERED SP ACES- TYP" shall be improved and landscaped substantially as I: svns. ROURDON. depicted and described on the exhibit entitled "RENAISSANCE SENIOR APARTMENTS AlIrnN & LM. P.C 2 PREPARED BY: I SillS. BOURDON. AHrnN & lIVY. P.c. WITH COVERED PARKING", dated June 28, 2007, which has been exhibited to the Virginia Beach City Council and is on file with the Department of Planning. 3. All of the terms, conditions, covenants, servitudes and agreements set forth in the 2006 Proffers recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, as Instrument #20070125000118060, save and except, Proffer 1, as specifically amended and modified herein, shall remain in force and effect, running with the Property and binding upon the Property and upon all parties and persons claiming under, by or through the Grantor, its heirs, personal representatives, assigns, tenants, and other successors in interest or title. The Grantor further covenants and agrees that: All references hereinabove to the A-36 Apartment District and to the requirements and regulations applicable thereto refer to the Comprehensive Zoning Ordinance and Subdivision Ordinance of the City of Virginia Beach, Virginia, in force as of the date of approval of this Agreement by City Council, which are by this reference incorporated herein. The above conditions, having been proffered by the Grantor and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, shall continue in full force and effect until a subsequent amendment changes the zoning of the Property and specifically repeals such conditions. Such conditions shall continue despite a subsequent amendment to the Zoning Ordinance even if the subsequent amendment is part of a comprehensive implementation of a new or substantially revised Zoning Ordinance until specifically repealed. The conditions, however, may be repealed, amended, or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and executed by the record owner of the Property at the time of recordation of such instrument, provided that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of an ordinance or a resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee which was advertised pursuant to the provisions of Section 15.2-2204 of the Code of Virginia, 1950, as amended. Said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent, and if not so recorded, said instrument shall be void. (1) The Zoning Administrator of the City of Virginia Beach, Virginia, shall be vested with all necessary authority, on behalf of the governing body of the City of Virginia 3 PREPARED BY: I_ Sms. ROURDON. , ADrnN & IIVY. P.C Beach, Virginia, to administer and enforce the foregoing conditions and restrictions, including the authority (a) to order, in writing, that any noncompliance with such conditions be remedied; and (b) to bring legal action or suit to insure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages, or other appropriate action, smt, or proceeding; (2) The failure to meet all conditions and restrictions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) If aggrieved by any decision of the Zoning Administrator, made pursuant to these provisions, the Grantors shall petition the governing body for the review thereof prior to instituting proceedings in court; and (4) The Zoning Map may show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the Property, and the ordinances and the conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department, and they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, and indexed in the names of the Grantors and the Grantee. 4 PREPARED BY: ma SYk':tS. ROURDON. m AHrnN & liVY. P.C WITNESS the following signature and seal: Grantor: I, College Park/; ....i.c., a Virginia limited liability compan~ 1/. ,/ /. j;' I I ;' / / / I // /1/ By:/ ' / (SEAL) ~ STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to wit: The foregoing instrument was acknowledged before me this 2nd day of July, 2007, by Eric G. Olson, Member of College Park, L.L.C., Grantor. /1--y,7ft ,/ t mcf!4M Notary Public My Commission Expires: August 31, 2010 5 PREPARED BY: I, Sms. ROURDON. . AHrnN & LM. P.c. EXHIBIT "A" ALL THAT certain lot, piece or parcel of land, lying, situate and being in the City of Virginia Beach, Virginia, containing 4 acres, as shown on that certain plat (the "Plat") entitled, "Subdivision of Property for COLEMAN FARMS, INC., Kempsville Borough - Virginia Beach, Virginia Scale: 1" = 100' December, 1976", made by John E. Sirine and Associates, Ltd., Surveyors & Engineers, Virginia Beach, Virginia; then Plat is intended to be recorded contemporaneously herewith in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia; said property being more particularly bounded and described with reference to the Plat as follows: To ascertain the point of beginning (the "Point of Beginning"), state at the southwest intersection of (Old) Providence Road and Providence Road; thence N 790 36' 39" Walong the southern line of (Old) Providence Road a distance of 166.28 feet to a point; thence continuing along said southern line of (Old) Providence Road N 780 45' 31" W a distance of 336.88 feet to a point; thence continuing along said southern line of (Old) Providence Road N 760 12' 24" W a distance of 183.93 feet to a point; thence continuing along said southern line of (Old) Providence Road, along a curve to the right having a radius of 500 feet, an arc distance of 18.24 feet to the Point of Beginning; thence from the Point of Beginning S 160 48' 55" E a distance of 652.39 feet to a point in the northern line of Providence Road; thence along the northern line of Providence Road, along a curve to the right having a radius of 931.42 feet, an arc distance of 378-40 feet to the property designated as Banbury Lake Village Section 1 on the Plat; thence the following courses and distances along said Banbury Lake Village Section 1: N 100 53' 30" W a distance of 80 feet to a point, N 130 14' 48" E a distance of 147.05 feet to a point, N 030 55' 41" W a distance of 130.73 feet to a point, N 870 22' 49" E a distance of 41.44 feet to a point, N 030 53' 41" W a distance of 377.15 feet to a point, N 250 29' 10" W a distance of 31.65 feet to a point, N 260 16' 59" E a distance of 65.34 feet to a point in said southern line of (Old) Providence Road; thence continuing along said southern line of (Old) Providence Road S 630 43' 01" E a distance of 36.93 feet to a point; thence continuing along said southern line of (Old) Providence Road, along a curve to the left having a radius of 500 feet, an arc distance of 90.75 feet to the Point of Beginning. GPIN: 1456-33-5185 ModitionstoProffers/CollegeParkj'TheRenaissance/Proffer 6 - 38 - Item V-K.4.. PLANNING ITEM #56937 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council MODIFIED Conditions upon application of ST. MICHAEL LUTHERAN CHURCH for a Modification of Conditions to enclose the existing storage and picnic shelter at 2208 Princess Anne Road (approved by City Council on April 25, 1988). ORDINANCE UPON APPLICATION OF ST. MICHAEL LUTHERAN CHURCH FOR A MODIFICA TION OF CONDITIONS on a request approved by City Council on April 25, 1988 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGNIA BEACH, VIRGINIA Ordinance upon application of St. Michael Lutheran Church for a Modification of Conditions on a request approved by City Council on April 25, 1988. Property is located at 2208 Princess Anne Road (GPIN 2404952881). DISTRICT 7 - PRINCESS ANNE The following conditions shall be required: 1. All conditions attached to the Modifications of the Conditional Use Permit granted by the City Council August 8, 2006 remain in affect. 2. The exterior of the proposed enclosed shelter shall be designed to be compatible with the existing exterior materials on the existing building on the site. 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 Ninth of October Two Thousand Seven 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 October 9, 2007 - 39 - Item V-K.5. PLANNING ITEM #56938 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED an Ordinance upon application of VICTORIOUS LIVING CHURCH for a Conditional Use Permit re a church: ORDINANCE UPON APPLICATION OF VICTORIOUS LIVING CHURCH FOR A CONDITIONAL USE PERMIT FOR A CHURCH R0100734241 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGNIA BEACH, VIRGINIA Ordinance upon Application of Victorious Living Church for a Conditional Use Permit for a church on property located at 2180 McComas Way, Suite 113 (GPIN 2404977494). DISTRICT 7 - PRINCESS ANNE. The following conditions shall be required: 1. The applicant shall comply with all applicable City requirements for building codes, includingfire safety and suppression, requiredfor a change of use from commercial to a place of assembly prior to the issuance of an Occupancy Permit for this unit. This includes obtaining a Fire Inspection, a Fire Code Permit, and a Certificate of Occupancy from the Building Official's Office. 2. The number of congregants at any service shall not exceed the occupancy number for the unit as established by the City's Fire Marshall. 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 Ninth of October Two Thousand Seven 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 October 9, 2007 - 40- Item V-K.6. PLANNING ITEM #56939 Joyce Keeling Martin, 3632 Pamlico Circle, Phone: 857-1184, represented the applicant, her son, Willie Donald Martin, Jr. Upon motion by Vice Mayor Jones, seconded by Council Lady Wilson, City Council DEFERRED INDEFINITELY an Ordinance upon application of WILLIE DONALD MARTIN, JR. for a Conditional Use Permit re an auto repair garage: City Council directed the City Manager to work with the applicant re relocation and/or property exchange. ORDINANCE UPON APPLICATION OF WILLIE DONALD MARTIN, JR. FOR A CONDITIONAL USE PERMIT FOR AN AUTOMOBILE REPAIR GARAGE Ordinance upon application of Willie Donald Martin, Jr. for a Conditional Use Permit for an automobile repair garage on property located at 1128 Barrs Road (GPIN 1459700591). DISTRICT 4 - BAYSIDE. Voting: 9-0 Council Members Voting Aye: William R. "Bill" DeSteph, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Reba S. McClanan, Mayor Meyera E. Oberndorf, John E. Uhrin Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay: None Council Members Abstaining: James L. Wood Council Members Absent: Harry E. Diezel Councilman Wood ABSTAINED, pursuant to Section 2.2-3115 (E), Code of Virginia. Willie Donald Martin, Jr., currently operates his business on Connie Lane and Connie Way. He rents the space for his business from Connie One, L.L.C and ifhis application is granted, he will terminate the rental agreement with Connie One, L.L.C Councilman Wood is a member of Connie One, L.L.C, which is located at 208 Ash Avenue, Suite 101, and has a personal interest in the corporation. Councilman Wood's correspondence of October 9, 2007, is hereby made a part of the proceedings. October 9, 2007 City e>f Virgi:C1ia Beach JAMES L. WOOD COUNCILMAN - DISTRICT 5 - LYNNHAVEN PHONE: FAX: (757) 340-8411 (757) 340-2082 In Reply Refer to 0034421 October 9, 2007 Mrs. Ruth Hodges Fraser, MMC City Clerk Municipal Center Virginia Beach, Virginia 23456 Re: Abstention Pursuant to Section 2.2-3115(E), Code of Virginia Dear Mrs. Fraser: Pursuant to the Virginia Conflict ofInterests Act, Section 2.2-3115(E), Code of Virginia, I make the following declaration: I. I am executing this written disclosure regarding City Council's discussion and vote on the application of Willie Donald Martin, Jr. for a Conditional Use Permit for an automobile repair garage at 1128 Barrs Road. 2. Mr. Martin currently operates his business on Connie Lane and Connie Way. He rents the space for his business from Connie One, L.L.C., and if his application is granted, he will terminate the rental agreement with Connie One, L.L.C. 3. I am a member of Connie One, L.L.C., which is located at 208 Ash Ave Suite 101 23452, and I have a personal interest in the corporation. 3. I wish to disclose this interest and abstain from voting on this matter. Accordingly, I respectfully request that you record this declaration in the official records of City Council. 3778 PRINCE ANDREW LANE, VIRGINIA BEACH, VA 23452 Mrs. Ruth Hodges Fraser -2- Re: Abstention Pursuant to Section 2.2-3115(E), Code of Virginia Thank you for your assistance in this matter. Sincerely, JL W /RRI October 9, 2007 - 41 - Item V-K. 7. PLANNING ITEM #56940 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council DEFERRED INDEFINTELY an Ordinance upon application of RAPPAHANNOCK SPORTS, L.L.C. for a Conditional Use Permit for an indoor recreation facility: ORDINANCE UPON APPLICATION OF RAPPAHANNOCK SPORTS, L.L.c. FOR A CONDITIONAL USE PERMIT FOR AN INDOOR RECREATION FACILITY Ordinance upon application of Rappahannock Sports, L.L. C. for a Conditional Use Permit for an indoor recreation facility on property located at the southeast intersection of Holland Road and Warwick Drive (GPIN 1495086742). DISTRICT6-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 October 9, 2007 - 42- Item V-K.8. PLANNING ITEM #56941 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council DEFERRED 45 DA YS until the City Council Session of November 27,2007, an Ordinance upon application ofCINGULAR WIRELESS for a Conditional Use Permit re a communication tower, antennas and equipment building at 4021 Charity Neck Road ORDINANCE UPON APPLICATION OF CINGULAR WIRELESS FOR A CONDITIONAL USE PERMIT FOR A COMMUNICATION TOWER Ordinance upon application of Cingular Wireless for a Conditional Use Permit for a communication tower on property located at 4021 Charity Neck Road (GPIN 2411550252). AICUZ is Less Than 65 dB DNL. DISTRICT 7 - PRINCESS ANNE. 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 October 9, 2007 - 43 - Item V-K.9. PLANNING ITEM #56942 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED an Ordinance upon application of GREG SMITH for a Conditional Use Permit re a home occupation (making and selling glass bead pendants in the garage) at 594 Van Buren Court. ORDINANCE UPON APPLICATION OF GREG SMITH FOR A CONDITIONAL USE PERMIT FOR A HOME OCCUPATION (MAKING AND SELLING GLASS BEAD PENDANTS) R0100734241 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGNIA BEACH, VIRGINIA Ordinance upon application of Greg Smith for a Conditional Use Permit for a home occupation (making and selling glass bead pendants) on property located at 594 Van Buren Court (GPIN 1486576552). DISTRICT 3 - ROSE HALL. The following conditions shall be required 1. In accordance with Section 234 of the City Zoning Ordinance, not more than twenty (20) percent of the floor area of the dwelling unit and accessory structure shall be used in conjunction with the home occupation. 2. No signs advertising the business shall be permitted on the premises or installed on the lot or buildings on the lot at any time. 3. There shall be no individuals employed by the applicant to assist with the home occupation other than one family. 4. Sales to the general public of product or merchandise shall not be permitted on the property. 5. The home occupation shall not create noise, dust, vibration, smell, smoke, glare, electrical interference, fire hazard or any other hazard or nuisance to any greater or more frequent extent than would normally be expected in the neighborhood under normal circumstances wherein no home occupation exists. 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 Ninth of October Two Thousand Seven October 9, 2007 - 44- Item V-K.9. PLANNING ITEM #56942 (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 1. Wood Council Members Voting Nay: None Council Members Absent: None October 9, 2007 - 45- Item V-K.10. PLANNING ITEM #56943 Attorney R. J. Nutter, 222 Central Park Avenue, Phone: 682-7500, represented the applicant Upon motion by Council Lady Henley, seconded by Councilman DeSteph, City Council ADOPTED an Ordinance upon application of MATHEWS GREEN ASSOCIATES, L.L.e. for a Change of Zoning District Classification from R-20 Residential District with a PD-H2 Overlay to P-1 Preservation District: ORDINANCE UPON APPLICATION OF MATHEWS GREEN ASSOCIATES, L.L.c. FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM R-20 RESIDENTIAL DISTRICT WITH A PD- H2 OVERLAY TOP-1 PRESERVATION DISTRICT Z01 0071286 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGNIA BEACH, VIRGINIA Ordinance upon application of Mathews Green Associates, L.L.c. for a Change of Zoninf! District Classification from R-20 Residential District with a PD-H2 Overlay to P-1 Preservation District on property located at 2217 Mathews Green (GP IN 2404949948). DISTRICT 7 - PRINCESS ANNE. TYPE OF EMERGENCY ACCESS GATE, TO BE DETERMINED BY F1RE AND PLANNING DEPARTMENTS, SHALL BE PROVIDED 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 Ninth of October Two Thousand Seven October 9, 2007 - 46- Item V-K.IO. PLANNING ITEM #56943 (Continued) Voting: IO-O Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, 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: Vice Mayor Louis R. Jones Council Members Absent: None Vice Mayor Jones DISCLOSED and ABSTAINED pursuant to Conflict of Interests Act re Mathews Green Associates, L.L.c. 's for a Conditional Change of Zoning application located at 2217 Matthews Green; and, discontinuance, closure and abandonment of portions of Matthews Green east of Princess Anne Road. Property owned by Holloman-Brown Funeral Home - Bayside Chapel, Inc. is located across the street from property that is the subject of Mathews Green Associates, L.L.c. 's applications. Vice Mayor Jones has an ownership interest in Holloman-Brown Funeral Home, Inc. The City Attorney has advised Vice Mayor Jones he does not have a personal interest in this transaction and is s able to participate in the discussion and vote fairly, objectively and in the public interest. Vice Mayor Jones's letter of August 22, 2006, is hereby made a part of the record. October 9, 2007 City e>f Virgi:r1ia. Bea.ch LOUIS R. JONES VICE MAYOR PHONE: FAX: (757) 583-0177 (757) 588-4659 August 22, 2006 Mrs. Ruth Hodges Smith, MMC City Clerk Municipal Center Virginia Beach, Virginia 23456 Dear Mrs. Smith: Re: Disclosure of Interest in Property I make the following declaration: 1. I am executing this written disclosure regarding Matthews Green Associates, L.L.c.' s applications for (1) a change of zoning district classification on property located at 2217 Matthews Green (GPIN 2404949948); and (2) discontinuance, closure and abandonment of portions of Matthews Green east of Princess Anne Road. 2. Property owned by Holloman-Brown Funeral Home-Bayside Chapel, Inc. ("Bayside Chapel") is located across the street from property that is the subject of Matthews Green Associates, LLC's applications. Bayside Chapel is a subsidiary of Holloman- Brown Funeral Home, Inc. I have an ownership interest in Holloman-Brown Funeral Home, Inc. that exceeds 3% of the corporation's total equity. 3. Planning Director Robert Scott has opined that it is not reasonably foreseeable that Bayside Chapel would realize a direct or indirect benefit or detriment as a result of this transaction, and that it would be speculative to conclude otherwise. 4. The City Attorney has reviewed the provisions of the State and Local Government Conflict ofInterests Act (Va. Code 9 2.2-3000 et seq.) and has concluded that I do not have a "personal interest in [this] transaction." 1008 WITCH POINT TRAIL, VIRGINIA BEACH, VA 23455-5645 Ruth Hodges Smith 2 August 22, 2006 5. Nevertheless, I wish to publicly disclose my interest ill the above-referenced properties and businesses. Accordingly, I respectfully request that you record this declaration in the official records of City Council. Thank you for your assistance in this matter. Sincerely, ~Jf- Louis R. J Vice Mayo LRJ/RRI - 47- Item V-K II. PLANNING ITEM #56944 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ORDINANCE UPON APPLICATION OF KOTARIDES DEVELOPERS FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM B- 2 COMMUNITY BUSINESS DISTRICT TO CONDITIONAL A-24 APARTMENT DISTRICT Z010071287 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGNIA BEACH, VIRGINIA Ordinance upon application of Kotarides Developers for a Chanfle of Zoninfl District Classification from B-2 Community Business District to Conditional A-24 Apartment District on property located at 920 South Military Highway. (GPIN 1456230589). DISTRICT 1- CENTERVILLE. The following condition shall be required: 1. An Agreement encompassing proffers shall be recorded with the Clerk of Circuit Court. 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 Ninth of October Two Thousand Seven Voting: 10-1 (By Consent) Council Members Voting Aye: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, ,Mayor Meyera E. Oberndorf John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: Reba S. McClanan Council Members Absent: None October 9, 2007 CITY OF VIRGINIA BEACH INTER-OFFICE CORRESPONDENCE In Reply Refer To Our File No. DF-6731 DATE: September 26, 2007 TO: FROM: Leslie L Lilley .to.::\ B. Kay WilsonW DEPT: City Attorney DEPT: City Attorney RE: Conditional Zoning Application; Kotarides Developers LLC The above-referenced conditional zoning application is scheduled to be heard by the City Council on October 9,2007. I have reviewed the subject proffer agreement, dated August 28,2007 and have determined it to be legally sufficient and in proper legal form. A copy of the agreement is attached. Please feel free to call me if you have any questions or wish to discuss this matter further. B KW/a Is Enclosure cc: Kathleen Hassen PING PING, LLC and KOTARIDES DEVELOPERS, LLC, a Virginia limited liability company To CITY OF VIRGINIA BEACH a Municipal Corporation of the ~ommonwealth of Virginia THIS PROFFER AGREEMENT ("Agreement") made this 28th day of August, 2007, by and among PING PING. LLC and KOTARIDES DEVELOPERS. LLC. a Virginia limited liability company (collectively, the "Grantor"); and THE CITY OF VIRGINIA BEACH. a municipal corporation of the Commonwealth of Virginia (the "Grantee"), with an address of 2405 Courthouse Dr., Municipal Center, Virginia Beach, VA 23456. RECITALS: A. Kotarides Developers, LLC ("Kotarides") is the contract purchaser of a certain parcel of property located in the City of Virginia Beach, herein known as Exhibit A (the "Property"), less and except all that certain parcel of land leased by Goodrich and Associates to Seaboard Citizens National Bank described in a Memorandum of Lease dated August 15, 1967, and recorded in the Clerk's Office of the Circuit Court for the City of Virginia Beach in Deed Book 1020 at page 49, which shall be severed from the Property pursuant to a subdivision plat approved by the City of Virginia Beach as more particularly set forth herein. PREPARED BY: ANN K. CRENSHAW, ATTORNEY AT LAW, KAUFMAN & CANOLES. P.C. GPIN NO. 1456-23-0589-000 B. Grantor has initiated an amendment to the Zoning Map of the City of Virginia Beach by petition of Grantor addressed to Grantee to change the zoning classification of the Property from B-2 to Conditional A-24 Apartments. The proposed amendment is made pursuant to the terms of the City Zoning Ordinance of the City of Virginia Beach, adopted April 18, 1988, as amended and in effect on the date of this Agreement (the "City Zoning Ordinance''). C. Grantee's policy is to provide for the orderly development of land for various purposes, including commercial purposes, through zoning and other land development legislation. D. Grantor acknowledges that in order to prevent incompatible land use, reasonable conditions governing the use of the Property, in addition to the regulations generally applicable to land zoned A-24 Apartments as specified in the City Zoning Ordinance, are required to address the project proposed in Grantor's rezoning application. E. Grantor has voluntarily proffered in writing, prior to the public hearing before Grantee, as a part of the proposed amendment to the Zoning Map and in addition to the regulations specified in the City Zoning Ordinance for the A-24 Apartment zoning district, reasonable conditions outlined in this Agreement related to the development and operation of the Property. These conditions will be adopted as a part of the amendment to the Zoning Map relative to the Property, and have a reasonable relation to the use of the Property as rezoned A-24 Apartment and are needed as a result of the rezoning. F. The conditions outlined in this Agreement have been proffered by Grantor and allowed and accepted by Grantee as a part of the amendment to the City Zoning Ordinance and the Zoning Map. These conditions shall continue in full force and effect until a subsequent amendment changes the zoning of the Property; provided, however, that such conditions shall 2 continue if the subsequent amendment is part of the comprehensive implementation of a new or substantially revised zoning ordinance of Grantee. NOW, TIIEREFORE, Grantor, its heirs, successors, assigns, grantees and other successors in title or interest to the Property, voluntarily and without any requirement by or exaction from Grantee or its governing body and without any element or compulsion or auid pro quo for zoning, rezoning, site plan, building permit or subdivision approval, makes the following declaration of conditions and restrictions governing the use and physical development and operation of the Property, and covenants and agrees that this declaration and the further terms of this Agreement shall constitute covenants running with the Property, which shall be binding upon the Property, and upon all persons and entities claiming under or through the Grantor, its heirs, successors and assigns, grantees and other successors in interest or title to the Property; namely: 1. The Property shall be used for the purposes and uses permitted in the A-24 Apartment District. Grantor agrees to a density not to exceed 18.5 apartment units per acre for a total number of apartments not to exceed 300 units. The maximum height of the buildings shall not exceed forty-five (45) feet. 2. A subdivision plat approved by the City of Virginia Beach shall be duly recorded to sever all that certain parcel of land leased by Goodrich and Associates to Seaboard Citizens National Bank described in a Memorandum of Lease dated August 15, 1967, and recorded in the Clerk's Office of the Circuit Court for the City of Virginia Beach in Deed Book 1020 at page 49 (the "Leasehold Parcel") from the Property. The subdivision plat shall comply with applicahle City Ordinances, including but not limited to the minimum lot size requirements. 3 3. Grantor shall comply with reasonable comments offered by the City. Grantor shall comply with all terms and conditions of all City Ordinances related to matters of Public Works, Traffic Engineering, Public Safety, Public Utilities and Storm Water Management. Grantor shall dedicate an additional right of way as more particularly set forth in the Site Plan. An application for an administrative variance to the Chesapeake Bay Preservation Act to encroach into the Variable Width Buffer has been submitted by the Grantor. 4. In order to provide for the coordinated development of the Property, the Property shall be developed in substantial conformity with that certain plan entitled "SCHEMATIC SITE PLAN, BELMONT AT PROVIDENCE" dated August 24, 2007, prepared by WPL (the "Site Plan"), a copy of which is on file with the City of Virginia Beach, Department of Plamring, with regard to layout, ingress and egress, and landscaping. Grantor shall comply with all terms and conditions of all City Ordinances and Guidelines pertaining to landscape design. Category IV landscaping and fencing, as more particularly described in the Site Plan, and the color coordinated rendering exhibit prepared by Kotarides entitled "BELMONT AT PROVIDENCE CROSS SECTION SHOWING CATEGORY 4 LANDSCAPING ADJACENT TO BURLINGTON PLAZA" will be installed on all adjacent parcels zoned for business uses. Foundation planting beds, as more particularly described in the Site Plan, shall be five (5) feet from front to back. The landscaping shall substantially conform to the Site Plan and other exhibits submitted to City Council and the Planning Department for the City of Virginia Beach. 5. The exterior of the typical apartment building shown upon the Site Plan shall be substantially similar in appearance to the color coordinated rendering exhibits prepared by Kotarides, said exhibit being the same exhibits as the color coordinated exhibit submitted to the City Council and on file in the Planning Department of the City of Virginia Beach, Virginia and 4 being composed of the same building materials and elevations as reflected upon the said elevation exhibit on file in the Planning Department of the City of Virginia Beach, Virginia (the "BELMONT AT PROVIDENCE TYPICAL BUILDING ELEVATION"). The building materials for the dwelling units will include brick veneer on the lower level, picket railings on the balconies, and horizontal lapped siding. 6. Belmont at Providence shall include a Clubhouse with an exercise facility, a kitchen, a swimming pool, central mail boxes and a business office. The Clubhouse shall be developed with architectural features that are substantially similar in appearance to those depicted on the color coordinated rendering exhibit prepared by Kotarides entitled "BELMONT AT PROVIDENCE CLUBHOUSE". The footprint of the Clubhouse shall be substantially similar in appearance to the Site Plan submitted to the City Council and on file in the Planning Department of the City of Virginia Beach, Virginia and being composed of substantially similar building materials and elevations as reflected upon the color coordinated rendering exhibit of the Clubhouse which is on file in the Planning Department of the City of Virginia Beach, Virginia. Building materials for the Clubhouse will be brick and siding materials. 7. The swimming pool shall include decorative water features, fencing, and a pergola. The pool will be developed with architectural features that are substantially similar to the color coordinated photograph of the swimming pool submitted to City Council and on file with the Planning Department of the City of Virginia Beach and being comprised of substantially similar building materials and elevations as reflected therein. Building materials for the pool will be brick, masonry and concrete. The fencing surrounding the pool will be black anodized aluminum. 5 8. Private recreational amenities shall include a Picnic Shelter, a Tot Lot and gazebos for the residents of Belmont at Providence. The gazebos shall be developed with architectural features that are substantially similar to the photograph of the gazebo submitted to the City Council and on file with the Planning Department of the City of Virginia Beach and being comprised of substantially similar building materials and elevations as reflected therein. The Department of Parks and Recreation shall assist in reviewing the plans for the development of recreational amenities and trails. 9. Pedestrian trails will be constructed by utilizing environmentally friendly pervious materials to encoUrage the residents' interaction with the natural beauty of the site. The trails shall he developed with features that are substantially similar in appearance to the color coordinated rendering exhibit submitted to the City Council and on file with the Planning Department of the City of Virginia Beach, Virginia (the "BELMONT AT PROVIDENCE VIEW OF PEDESTRIAN TRAIL and ACTIVE OPEN SPACES") prepared by Kotarides. As a matter of public safety, pedestrian trails shall be designed to maximize sight lines and surveillance opportunities by users, while keeping with the natural appearance of the open space. Pedestrian trail landscaping within eight (8) feet of the pathways will be kept low, less than three (3) feet, and tree canopies shall be raised up to seven (7) feet. The Department of Parks and Recreation shall assist in reviewing the plans for the development of recreational amenities and trails. 10. The community sign at Military Highway and the community sign and fencing will be built with architectural features that are substantially similar to the photographic exhibit of the signage and fencing submitted to the City Council and on file with the Planning Department of the City of Virginia Beach and being comprised of substantially similar building materials and elevations as reflected upon the color photographic renderings. The community 6 sign shall be externally lighted and constructed primarily of brick. The landscaping surrounding the community sign shall be substantially similar to that set forth in the Site Plan. 11. Open space shall be provided as shown upon the Site Plan, a copy of which is on file with the City of Virginia Beach, Department of Planning. The open space will not be open to the public at large. The open space shall be owned and maintained by the owner. 12. A Photometric Plan shall be submitted for review and approval. Full cut-off fixtures shall be used for parking lot lighting. All lighting on the site shall be consistent with those standards recommended by the Illuminating Engineering Society of North America. 13. Further lawful conditions or restrictions against the Property may be required by Grantee during the detailed Site Plan review and administration of applicable codes and regulations of Grantee by all 'appropriate agencies and departments of Grantee, which shall be observed or performed by Grantor. Grantor acknowledges that additional further lawful conditions or restrictions may be imposed by Grantee as a condition of approvals, including but not limited to final Site Plan approval. 14. All references hereinabove to zoning districts and to regulations applicable thereto, refer to the City Zoning Ordinance of the City of Virginia Beach, in force as of the date the conditional rezoning amendment is approved by the Grantee. 15. The Grantor covenants and agrees that (1) the Zoning Administrator of the City of Virginia Beach, Virginia, shall be vested with all necessary authority on behalf of the governing body of the City of Virginia Beach, Virginia, to administer and enforce the foregoing conditions and restrictions specified in this Agreement, including (a) the ordering in writing of the remedying of any noncompliance with such conditions, and (b) the bringing of legal action or suit to ensure compliance with such conditions, including mandatory or prohibitory injunction, 7 abatement, damages or other appropriate action, suit or proceedings; (2) the failure to meet all conditions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) if aggrieved by any decision of the Zoning Administrator made pursuant to the provisions of the City Code, the City Zoning Ordinance or this Agreement, a petition shall be filed to the governing body for the review thereof prior to instituting proceedings in court; and (4) the Zoning Map shall show by an appropriate symbol on the Map the existence of conditions attaching to the zoning of the subject Property on the Map and that the ordinance and conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Plamring Department and that they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and indexed in the name of the Grantor and Grantee. REMAINDER OF PAGE LEFT INTENTIONALLY BLANK 8 WITNESS the following signs and seals: PING PING LLC, a Virginia limited liability company COMMONWEALTH OF VIRGll'ilA CITY OF~~CI~o-wit: I, S\(~h~~ ~c.hr . the undersigned, a Notary Public in and for the City and State aforesaid, .do hereby certify that \U1~UA <!:t<.- . whose name is signed to the foregoing instrument as Manager of Ping Ping LL , a Virginia limited liability company, has sworn to, subscriJ>~, and ""~edged the same before me in the City and Commonwealth aforesaid this ~ay of _ u,;} , 2007 on behalf of said limited liability company. . MY~SiOn~~ \0% RegIstration No.: 'i) MELINDA TUCKER r _ Co Notary Public My C::alth of Virginia Exps. Feb. 29, 200B 9 KOT ARIDES DEVELOPERS, LLC, a Virginia limited liability company COMMONWEALTH OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: I, /)f/(N t. t/ANlJ,4tJ<l1l , the un<l~rsi~ed, a Motary Public in and for the City and State aforesaid, do hereby certify that Ale< /f!Af; ~Atl~hose name is signed to the foregoing instrument as Manager of Kotarides Developers, LLC, a Virginia limited liability company, has sworn to, subscri~g, and acknowledged'the same before me in the City and Commonwealth aforesaid this .il!!... day of ~~ . 2007 on behalf of said limited liability company. NO~iC ~...v- My commission eXJ>ires: ~. ~ I. ~ I (). Registration No.: 1D' a64. / 10 EXHIBIT A LEGAL DESCRIPTION PARCEL ONE: (Small Golf Parcel) Beginning at a point on the Easterly right-of-way line of Military Highway and the intersection of the common boundaries of Leasehold D, Leasehold C-l, and Leasehold C-2; as shown on "ALTAlACSM Land Title Survey of a Portion of Tract "A" as described in (D.B. 3089, PG. 0333) for Indian River Family Golf Centers, Inc., Kempsville Borough, Virginia Beach, Virginia" dated 5/16/96; thence leaving the Easterly right-of-way line of Military Highway, South 05007' 14" West, 39.28' to a point; thence along a curve to the right having a central angle of 18004'48", a radius of39.31', an arc length of 12.40', and a chord bearing of South 75050' 23" West to a point; thence continuing along a curve to the right having a central angle of 730 OS' 39", a radius of 13.01', an arc length of 16.59', and a chord bearing of South 30015' 09" East to a point; thence South 060 17' 39" West, 65.80' to a point; thence South 000 41' 38" East, 40.21' to a point; thence South 060 45' OS" East, 39.14' to a point; thence South 14046' 16" East, 88.15' to a point; thence South 120 06' 32" East, 35.76' to a point; thence South 050 30' 00" East, 45.67' to a point; thence South 080 07' 02" East, 36.13' to a point; thence South 10009' 22" East, 251.38' to a point; thence South 24035' 13" East 189.24' to a point; thence along a curve to the left having a central angle of 720 54' 43'\ a radius of 100.00', an arc length of 127.26' and a chord bearing of South 610 02' 34" East; thence South 540 09' 37" East, 56.74' to a point on the Northerly side right-of-way line of Old Providence Road; thence along the Northerly side right-of-way line of Old Providence Road, South 780 03' 56" West, 518.06' to a point; thence leaving the Northerly right-of-way line of Old Providence Road, North 110 56' 04" West, 46.73' to a point; thence North 300 28' 42" East, 200.00' to a point; thence North 150 41' 56" East, 331.49' to a point; thence North 04054' 28" West, 423.74' to a point on the right-of-way line of Military Highway; thence along the Easterly right-of-way line of Military Highway; North 300 28' 42" East, 68.99' to a point which marks the point of beginning. The above described parcel contains 3.115 acres, more or less. PARCEL TWO: (Large Golf Parcel) Beginning at a pin found on the Easterly right-of-way line of Military Highway and the common boundary line of Leasehold C-1 and Leasehold D as shown on "ALTAlACSM Land Title Survey of a Portion of Tract "A" as described in (D.B. 3089, PG. 0333) for Indian River Family Golf Centers, Inc., Kempsville Borough, Virginia Beach, Virginia" dated 5/16/96; thence along the Easterly right-of-way line of Military Highway North 300 28' 42" East, 41.94' to a point; thence leaving the right-of-way line of Military Highway, South 590 31' 18" East, 138.42' to a point; thence South 130 12' 32" West, 207.36' to a point; thence South 590 32' 58" East, 40.00' to a point; thence South 05059' 38" East, 250.00' to a point; thence North 840 00' 22" East, 150.00' to a point; thence North 050 59' 38" West, 63.29' to a point; thence North 840 00' 22" East, 533.61 to a point; thence South 080 32' 34" East, 66.75' to a point; thence South 580 55' 01" East, 190.88' to a point; thence South 150 58' 59" East, 172.26' to a point on the Northerly side right- of-way line Old Providence Road; thence along the Northerly side right-of-way of Old Providence Road the following courses and distances, South 72034' 51" West, 50.19" to a point; thence South 390 16' 51". West, 206.36 to a point; thence along a carve to the right having a central angle of 380 47' OS", a radius of 268.18', an arc length of 181.54', and a chord bearing of South 580 40' 24" West to a point; thence South 780 03' 56" West, 494.57' to a point; thence leaving the Northerly side right-of.way line of Old Providence Road, North 540 09' 37" West, 56.74' to a point; thence along a curve to the right having a central angle of 720 54' 43", a radius of 100.00', an arc length of 127.26', and a chord bearing of North 61002' 34" West to a point; thence North 240 35' 13"..West, 189.24' to a point; thence North 100 09' 22" West, 251.38' to a point; thence North 08007' 02" West, 36.13' to a point; thence North 05030' 00" West, 45.67' to a point; thence North 12006' 32" West, 35.76' to a point; thence North 14046' 16" West, 88.15' to a point; thence North 060 45' 05" West, 39.14' to a point; thence North 000 41' 38" West, 40.21' to a point; thence North 060 17' 39" East, 65.80' to a point; thence along a curve to the left having a central angle of 730 05' 39" a radius of 13.01', an arc length of 16.59', and a chord bearing of North 30015' 09" West to a point; thence continuing along a curve to the left having a central angle of 18004' 48", a radius of 39.31', an arc length of 12.40', and a chord bearing of North 750 50' 23" West to a point; thence North 050 07' 14" East, 39.28' to a point on the Easterly right-of-way line of Military Highway; thence leaving the Easterly right-of-way line of Military Highway, South 470 28' 09" East, 95.35' to a point; thence South 590 31' 18" East, 66.00' to a point; thence North 720 10' 42" East, 47.00' to a point; thence North 130 12' 32" East, 176.79' to a point; thence North 590 31' 18" West, 138.02' to a point on the Easterly right-of-way line of Military which marks the point of beginning. The above described parcel contains 13.825 acres. It being the same property conveyed to Ping Ping, LLC, by deed from Weiguo Ge and Ping Ping Fan, husband and wife, dated February 7, 2006, recorded as instrument nwnber 20060302000329280. Assignment of landlord's interest in leases assigned from Weiguo Ge and Ping Ping Fan to Ping Ping, LLC by instrument dated February 28,2006, recorded as instrument nwnber 20060302000329290. Less and except that all that certain parcel of land leased by Goodrich and Associates to Seaboard Citizens National Bank described in a Memorandwn of Lease dated August 15, 1967, and recorded in the Clerk's Office of the Circuit Court for the City of Virginia Beach in Deed Book 1020 at page 49. 8266356\\ 2 - 48 - APPOINTMENTS ITEM #56945 Upon NOMINATION by Councilman Uhrin, City Council APPOINTED: Gerrie West, Architect i-year iO/Oi/2007fflru09/30/2008 WORKFORCE HOUSING ADVISORY BOARD 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 Item V-O October 9, 2007 - 49- Item V-O ADJOURNMENT ITEM # 56946 Mayor Meyera E. Oberndorf DECLARED the City Council Meeting ADJOURNED at 7:51 P.M. v?~__~~_~~_(~ Beverly 0. Hooks, CMC Chief Deputy City Clerk ---- -~ --------------------------------- th Hodges Fraser, MMC City Clerk Meyera E. Oberndorf Mayor City of Virginia Beach Virginia October 9, 2007 Q~ Virginia Coastal Access Now "Helping provide public access to Virginia's Coast" October 12, 2007 Mr. James K. Spore, City Manager City of Virginia Beach City Manager's Office Municipal Center, Bldg. 1 2401 Courthouse Drive, Suite 234 Virginia Beach, VA 23456 RE: VCAN Note of Apology Dear Mr. Spore, Our public access non-profit group Virginia Coastal Access Now (VCAN) would like to apologize to you for the inappropriate conduct by our member Nlr. Beach while discussing the legal and safe wade fishing of Lynnhaven Inlet at last Tuesday's City Council meeting. Mr. Beach's frustration with and passion for this public access issue led to his confrontational behavior with you and for that we offer our sincerest apologies. Our non-profit, its members, and residents of Virginia Beach have been co-operatively working with the City on other public access projects like the North End parking issue. There are several other public access issues we are working on with the City right now that we expect to effectively carry out with the City's leadership. VCAN looks forward to working positively with you and the City of Virginia Beach on this and future public access issues. Should you have any questions or need additional information, pleased let me know (757) 410-3180 or Respectfully, /lI-d+-Jk~ Mark Feltner, President Virginia Coastal Access Now cc: Virginia Beach City Council 1356 Pamlico Blvd. Chesapeake, VA 23322 vcan@cox.net www.vcanaccess.com