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Home My WebLink AboutMAY 26, 2009 CITY OF VIRGINIA BEACH "COMMUNITY FOR A LIFETIME" CITY COUNCIL MAYOR WILLIAM D. SESSOMS JR., At-Large VICE MAYOR I.OurS R. JONES, Bayside - District. GLENN R DAVIS, Rose Hall- District 3 WII-LIAM R DeS7JiPH, At-Large HARRY E. DIE1.EL, Kempsville - Dlstrrct 2 ROB!;'/?T M. !Jl'ER, Centervllle - I),strrct! BARBARA M. HhNL/:'Y. Prll1cess Anne IJwrrct 7 JOHN F UHRIN, Beach Distrrct (, RON A VII-LANUFVA, AI-Large ROS/:'MARY W1l50N, At-I,arge JAMES L WOOD, I,ynnhawn -Dlstrrct 5 .c' CITY COUNCIL APPOINTEES CITY MANAGhR JAMES K. SPORE CITY ATTORNEY MARK D. STILES CITY ASSESSOR JERALD BANAGAN CITY AUDITOR - LYNDON S. REMIAS C17Y CLERK RUTH HODGES FRASER, MMC CITY COUNCIL AGENDA 26 MAY 2009 I. CITY MANAGER'S BRIEFINGS - Conference Room - A. HIGH SPEED RAIL Robert Matthias, Assistant to the City Manager B. INTERIM FINANCIAL STATEMENT Patricia Phillips, Director - Finance II. CITY COUNCIL COMMENTS III. CITY COUNCIL AGENDA REVIEW IV. INFORMAL SESSION - Conference Room - A. CALL TO ORDER - Mayor William D. Sessoms, Jr. B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION iii II II CITY HALL BUILDING 2401 COURTHOUSE DRIVE VIRGINIA BEACH. VIRGINIA 23456-9005 PHONE.(757) 385-4303 FAX (757) 385-5669 E- MAlL: ctycncl@vbgov.com 3:00 PM 4:30 PM .1 II V. FORMAL SESSION AGENDA - Council Chamber - 6:00 PM A. CALL TO ORDER - Mayor William D. Sessoms, Jr. B. INVOCATION: Edward L. Moore, Pastor Grace Covenant Presbyterian Church C. PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA D. ELECTRONIC ROLL CALL OF CITY COUNCIL E. CERTIFICATION OF CLOSED SESSION F. MINUTES 1. SPECIAL FORMAL SESSION May 5,2009 2. INFORMAL and FORMAL SESSIONS May 12,2009 G. MAYOR'S PRESENTATION 1. RESOLUTION re SPECIAL OLYMPICS H. PUBLIC HEARINGS 1. LEASE OF CITY-OWNED PROPERTY a. Dolphin Run - 3rd Street and Atlantic Avenue b. Theme Restaurants, Inc. (t/a II Giardino Ristorante) - 910 Atlantic Avenue 2. EXCESS CITY PROPERTY - Interfacility Traffic Area Conveyance of easements - Indian River, Landstown and Salem Roads I. AGENDA FOR FORMAL SESSION J. CONSENT AGENDA ,I II K. ORDINANCESIRESOLUTIONS 1. Ordinance to AMEND the City Code: a. SS 5-602, 12.43.2 and 38-3 re the regulation and control of animals and birds b. S 6-120-2 re the regulation of personal watercraft rentals 2. Resolution COMMENDING Robert S. Miller III, for his Twenty-Eight (28) Years of V olunteer Service to the Special Olympics 3. Ordinance to DECLARE restrictive easements over thirteen (13) City-owned properties in the Interfacility Traffic Area (IT A) to be EXCESS property and AUTHORIZE the City Manager to convey these properties to the United States of America Department of the Navy (USN) for $,4,050,000: 3592 Indian River Road Landstown Road 2433 Salem Road Salem Road, Parcel B Salem Road, Parcel A 2561 Salem Road Salem Road ( 6 parcels) 2437 Salem Road 4. Ordinance to GRANT Theme Restaurants, Inc., t/a II Giardino Ristorante two five (5) year Franchise Agreements for open air cafes at the Resort Area. 5. Ordinance to AUTHORIZE the City Manager to execute a four (4) month lease for vehicular parking with the Dolphin Run Condominium Association, Inc. at 3rd Street and Atlantic A venue 6. Resolution of the CITY OF VIRGINIA BEACH re Spot Blight Abatement (City Code ~ 16-39) Determination at 620 Counselor Square. DISTRICT 3 - ROSE HALL RECOMMENDA nON APPROV AL 7. Ordinance to AUTHORIZE the acquisition of blighted property by eminent domain at 620 Counselor Square for the purpose of rehabilitation to a qualified builder, developer or other entity and APPROPRIATE $82,778 needed for acquisition. 8. Ordinance to AUTHORIZE temporary encroachments into a portion of City right-of- way for JAMES M. ARNHOLD at 4332 Sandy Bay Drive to construct and maintain three (3) parking areas and two (2) four (4") inch conduits. DISTRICT 4 - BA YSIDE 9. Ordinance to APPROPRIATE $660,901 Federal Stimulus funds from the American Recovery and Reinvestment Act (ARRA) under the Community Development Block Grant to the Department of Housing and Neighborhood Preservation's FY 2008-09 operating budget re rehabilitation of eligible owner-occupied housing units. 10. Ordinance to APPROPRIATE $70,000 from the fund balance of the General Fund to provide an interest-free loan to the Plaza Volunteer Rescue Squad for the purchase of a replacement ambulance. L. PLANNING - NO ACTION NECESSARY 1. Ordinance to AMEND Appendix C, Site Plan Ordinance, Section 5B, re floodplains and the requirements of the National Flood Insurance Program. 2. Application of the CITY OF VIRGINIA BEACH for a Change of Zoning District Classification from R-5D Residential Duplex to 1-1 Light Industrial at 212-228 Fair Lady Road and 2305 Potters Road. (Deferred by the Planning Commission) DISTRICT 6 - BEACH M. PLANNING 1. Application of the CITY OF VIRGINIA BEACH for a street closure (unimproved) at Terrell Avenue to incorporate the right-of-way into surrounding property owned by the City. DISTRICT 6 - BEACH RECOMMENDA TION APPROV AL 2. Application of the CAVALIER GOLF and YACHT CLUB for the closure of a portion of Cardinal Road from the north side of Starling Court to its terminus. DISTRICT 5 - L YNNHA VEN RECOMMENDATION APPROV AL 3. Application of ELLIS-GIBSON DEVELOPMENT GROUP I LAKE GEM II, LLC for a Conditional Use Permit re a seasonal outdoor "green" market at 2181 Upton Drive. DISTRICT 7 - PRINCESS ANNE RECOMMENDATION APPROV AL 4. Application of NEW CINGULAR WIRELESS PCS, LLC (T/A AT&T) for a Conditional Use Permit re a communication tower at 6009 Blackwater Road. DISTRICT 7 - PRINCESS ANNE RECOMMENDA nON INDEFINITE DEFERRAL 5. Application of CHESTER and VIVIAN TUCKER for a Conditional Use Permit to convert their single family residence into a Country Inn at 1557 Sandbridge Road. DISTRICT 7 - PRINCESS ANNE RECOMMENDA TION APPROV AL ,I 6. Application of FLORDELIZA and DANIEL BA Y ANGOS, JR., DBA LIZA'S RESIDENTIAL CARE for a Conditional Use Permit re senior residential care at 5084 Langston Court. DISTRICT 2 - KEMPSVILLE RECOMMENDA TION APPROV AL 7. Application of PRINCESS ANNE CHURCH OF CHRIST for a Conditional Use Permit re a church at 3016 Virginia Beach Boulevard. DISTRICT 5 - L YNNHA VEN RECOMMENDATION APPROV AL 8. Application of the CITY OF VIRGINIA BEACH for a Change of Zoning District Classification from R-5D Residential Duplex and A-12 Apartment to 1-1 Light Industrial at London Bridge and Potters Road. (AICUZ) DISTRICT 6 - BEACH RECOMMENDATION APPROV AL 9. Application of RICHMOND 20MHz, LLC, Modification of Conditions No.1 and 3 (approved by City Council on November 22,2005) re location and the number of antenna arrays allowed on the tower at 1000 Great Neck Road. DISTRICT 5 - L YNNHA VEN RECOMMENDATION APPROV AL 10. Ordinance to AUTHORIZE a new Official Zoning Map, which shall replace the existing Map, due to a change in the computer mapping format used to store the data and develop the printed copies. There are no changes between the current and proposed maps in regard to the Zoning Districts or to their existing locations. RECOMMENDATION ADOPTION N. APPOINTMENTS BA YFRONT ADVISORY COMMITTEE BIKEWAYS AND TRAILS ADVISORY COMMITTEE CHESAPEAKE BAY ALCOHOL SAFETY PROGRAM EASTERN VIRGINIA MEDICAL SCHOOL HAMPTON ROADS PLANNING DISTRICT COMMISSION (HRPDC) HUMAN RIGHTS COMMISSION MINORITY BUSINESS COUNCIL SOCIAL SERVICES BOA TRD TIDEWATER COMMUNITY COLLEGE BOARD TIDEWATER REGIONAL GROUP HOME COMMISSION II, ;II O. UNFINISHED BUSINESS P. NEW BUSINESS Q. ADJOURNMENT ********* If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 385-4303 * * * * * * * * * * * Agenda OS/26/2009.gw www.vbgov.com - 1 - II" III II MINUTES VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia May 26, 2009 Mayor William D. Sessoms, Jr., called to order the CITY MANAGER'S BRIEFING re HIGH SPEED RAIL in the City Council Conference Room, Tuesday, May 26,2009, at 3:00 P.M Council Members Present: William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Absent: Glenn R. Davis [Entered: 3: lOP. MJ May 26, 2009 Iii II - 2 - C I T Y MANA G E R 'S B R I E FIN G HIGH SPEED RAIL 3:00 P.M. ITEM # 58834 Robert Matthias, Assistant to the City Manager, advised the Souths ide Mayor's and Chairs organization has become very interested in High Speed Rail. Mayor Sessoms, at the first meeting of the Mayor's and Chairs, placed this as one of his priority issues. Mr. Matthias spoke with the Congressional Delegation concerning this item. Mayor Sessoms has requested a Resolution URGING the Commonwealth of Virginia and Congress to make the advancement of high speed passenger rail service from Richmond to Southside Hampton Roads a high priority. What is President Obama's High Speed Rail Proposal? @ President Obama has announced a vision to transform the Nation's transportation system. He proposes rebuilding existing rail infrastructure while launching 100-600 mile high speed rail corridors to connect major population hubs. @ $8-BILLION "down payment" through American Recovery and Reinvestment Act (ARRA) plus $1-BILLION/year for next 5 years Proposed High Speed Corridors VISI01'ifi~" HIGH-SPEED RAIL v"AMERICA k.-- ....~I..~.lllltl. 1\- '\ High Speed Rail Facts @ In the United States, high speed rail is defined as "traveling at least 125 mph". Elsewhere in the world, it means faster speeds Market Definition: @ High-Speed Rail, sometimes called High-Speed Ground Transportation, is self-guided intercity passenger ground transportation that is time-competitive with air and/or autos on a door-to- door basis for trips in the approximate range of 100 to 500 miles. This is a market-based, not a speed-based definition: it recognizes that the opportunities and requirements for High-Speed Rail differ markedly among different pairs of cities. May 26, 2009 - 3 - C IT Y MANA G E R 'S B R IE FIN G HIGH SPEED RAIL ITEM # 58834 (Continued) High Speed Rail Facts (Continued) International Examples of High Speed Rail Japan France Germany United China United States Kingdom Date of Initiation 1964 1981 1988 2003 207 1969/2000 System length 1,360 1,180 798 70 588 457 (route miles) Top operating 188 199 186 186 186 125/150 speed (mph) HRS Ridership 300 100 67 8 No data 11 (MILLIONS) @ Only "high speed" rail in the United States is in the Northeast corridor . Acela: Top speed limited by infrastructure to 135 mph (Average 86 mph) @ High speed requires separate track and all grade separated crossings @ "Higher" speed rail is what will likely be built on existing lines May 26, 2009 " II I I - 4 - C I T Y MANA G E R 'S B R IE FIN G HIGH SPEED RAIL ITEM # 58834 (Continued) High Speed Rail Facts (Continued) Benefits of High/Higher Speed Rail- Travel Costs @ Taking Amtrak round trip between: @ · Richmond, VA, and Washington, DC, is 39.56% cheaper compared to paying mileage · Williamsburg, V A, and Washington, DC, is 51.88% cheaper compared to paying mileage · Newport News, VA, and Washington, DC, is 53.94% cheaper · Washington, DC, and Richmond, VA, is 91.13% cheaper thanjlying Source: Richmond-/Hamp/on Roads Passenger Rail Projec/-2009 Benefits of High/Higher Speed Rail- Environmental @ Intercity passenger trains average 51 mpg per passenger mile compared to 40 mpg per passenger mile for automobiles @ Freight trains average 20.25 mpg compared to tractor-trailers that average 6.75 mpg @ One railway track mile uses 0.42 football field(s) worth of land compared to one highway mile that equals 1.10 @ One Virginia Railway Express commuter train can equal as many as 800 cars taken off the highway Benefits of High/Higher Speed Rail- Investment @ Railways cost $2-to $6-MILLION per track mile compared to $11-MILLION or more per highway mile May 26, 2009 i II I II - 5 - C IT Y MANA G E R 'S B R IE FIN G HIGH SPEED RAIL ITEM # 58834 (Continued) Hampton Roads and Higher Speed Rail @ Two alternatives under study · CSX Corridor from Richmond to Newport News · Norfolk-Southern Corridor from Richmond to Norfolk area @ Chaste... l ( 'f.1CQIl>l!lal Halghts Ettrick'" "'~ \. ~r"~ " ~ 4l!" __ Pentnsula. CSX Ahvnme"t -- Soulhstde. Norfolk Southern Altunmenl Pe'ef"sbu"Q AUg-nment & Station Loc:.aHon 10 be du-Iermined in Future Study o Proposed 8'a1l011 lOi::.ation . Cities Major Roads :tb. WaleI' T :) 10 201180,,,,,, " '\~ ~~;~;!,!!!~~fi~J!!~!!d , . [;75 @3 Virginia 8each fm @ ~H____ [ill @ i ~......_____S__.__ Issues to be Addressed to make Norfolk Southern Freight Line Higher Speed Compatible @ Environmental Issues · 27 Flood plain crossings · 584 Wetland acres (within 300ft of center line) · 98 At grade crossings · 34 Endangered species @ Construction Issues · Signaling system must be upgraded · Freight train conflicts-very variable-longer trains · Petersburg bottleneck · Third track needed in many areas (allows passing) · POE yard (outside of Petersburg) issues-very congested Source: Richmond to South Hampton Roads High-Speed Rail Feasibility Study, Parsons 2002 May 26, 2009 II - 6 - C IT Y MANA G E R 'S B R IE FIN G HIGH SPEED RAIL ITEM # 58834 (Continued) Current Draft Environmental Impact Statement (DEIS) Study Status Project Schedule Spring-Summer 2009 · Finalize detailed evaluation of the alternatives · Complete the Draft Environmental Impact Statement (EIS) Summer 2009 · Draft EIS available for public review · Public Hearings and comment period Fall 2009 · Final EIS prepared and submitted to the Federal Railroad Administration (FRA) · FRA Record of Decision on the Final EIS Projected Costs and Ridership Route 460 957,800 1,017,700 Year 2000 Dollars Does not include Richmond to Petersburg improvements Source: Richmond to Southampton Roads High-Speed Rail Feasibility Study, Parsons 2002 Next Steps 1. Adopt Resolution supporting high(er) speed rail to South Hampton Roads 2. Closely monitor completion of on-going DEIS study by Virginia Department of Rail and Public Transportation 3. Work with Congressional and General Assembly Delegations to move projectforward 4. Work with Governor's Office and others as necessary Mr. Matthias referenced the $8-BILLION President Obama has set aside in the Federal Stimulus Bill, and advised that because of where this proposal is in the "pecking order ", the area probably would not be eligible for any of this funding. There are a certain number of projects which are "ready to go" and the guidelines are coming out either June Seventeenth or June Twenty-fifth. Many jurisdictions have plans ready. Mayor Sessoms advised all of the Council's in Southside Hampton Roads will be voting on a Resolution re high speed rail. The biggest fear in the organization is you can have high speed rail from Richmond to Raleigh which does not involve Hampton Roads. The City needs to waive its flag strongly that if High Speed Rail occurs, Southside Hampton Roads must be a part of that plan. May 26, 2009 ,i I III - 7 - C IT Y MANA G E R 'S B R IE FIN G INTERIM FINANCIAL STATEMENT 3:25 P.M. ITEM # 58835 Patricia Phillips, Director of Finance, presented the Interim Financial Statements for the past ten (10) months ending April 30, 2009. Ms, Phillips referenced the Ratings of the Bond Agencies:, Standard and Poors -AAA; Moody's -Aa1 and Fitch: AA+. Draft reports have been receivedfrom Fitch and Moody's re the diversified and economic base ongoing. Town Center is in its final stages and a proposed light rail system would further expand the economic base and support development throughout the City. Private investments in hotel renovations and construction along the Beachfront must continue. Per capita personal income levels in Virginia Beach are on par with the Commonwealth and above the National average. Mrs. Phillips recognized Don Barnett - Comptroller, Miryam Woodson - Principal Accountant, Wendy Hu - Accountant IV, and Loretta Brown - Executive Assistant. Mrs. Phillips expressed appreciation to Richard N Dunford, Debt and Financial Services Administrator, who has been working on the Bonds. The books will be closed officially August 15, 2009, ~ General Fund - Update FY 2009 Revenues FY 2009 Expenditures Projections ~ Next Steps FY2009 Year To Date General Fund Revenues Compared to Historic Trend April 30, 2009 100% 100.0% 80% .. ., " 60% c ~ Ill: ]j ~ 40% ... 0 .. c ~ ., ll. 20% 0% Jul Aug Sep Oct Nov .......Hlstorlc Trend Dee Jan Feb Mar -)(- Percent of FYOg Budget Apr I May Jun ~ Total Revenues are $619.5 million - 57.9% ~ Slightly below historical average (58.6%) ; behind compared to 2008 (58.5%) ~ Many items are on a 2-month lag ~ Personal Property tax due June 5 ~ Interest rate environment ~ Economy May 26, 2009 , II - 8 - C IT Y MANA G E R 'S B R IE FIN G INTERIM FINANCIAL STATEMENT ITEM # 58835 (Continued) (IN MILLIONS) Budget Actual Variance % of Budget FY 2007 $ 963.6 $ 970.2 $ 6.6 0.7% FY 2008 $ 1,026.4 $ 1,018.4 $ (0.8) (0.8%) The trend line continues to do well and real estate revenues will be over budget. $100 no $80 $70 ~ ~ :e $60 .. w G ~ $60 ~ ~ ~ $40 $30 no $10 $0 Real Estate Revenues April 30" 2005 - 2009 $600 100% FAVORABLE TREND 90% BUDGET $500 ---------------------------------------------------------------------------'$m:s--------------------------- 80% $439.0 $0 0% 70% $400 54.2% 60% 50% 40% $200 on 30% 20% 10% FY 2005 FY 2006 FY 2007 FY 2008 FY 2009 ~nnual Collections _no -<>-% of Total] Personal Property Taxes - Local (nelude, I'I'TRA) April 30,2005 - 2009 100% UNFAVORABLE TREND BUDGET _________________________________________________________________________________________________________________Ull.;!.______________ $71.6 76% 60% 26% 0% FY 2006 FY 2006 FY 2007 FY 2008 FY 2009 L ~Annual ~~;;;;tiOn$ _~ -<>':::-:-k ~~ Total ] ~- .,.__.__._---~-_.,..--- -~ May 26, 2009 ,I II 1111 - 9 - C IT Y MANA G E R 'S B R IE FIN G INTERIM FINANCIAL STATEMENT ITEM # 58835 (Continued) The Commissioner of the Revenue has mailed the Personal Property Taxes notices. This was budgeted at $ 78. 3-MILLION and is expected to be $11-$12-MILLION under budget. The PPTRA chart is presentedfor information. The Personal Property Tax Relief Act (State portion) is no longer tied to the collection at the local level. Budget for FY 2009 $53.4-MILLION Projected Schedule for FY 2009 1'1 Payment, November 15, 2008 $ 6.5-MILLION 2nd Payment, July 31, 2009 $42.5-MILLION 3rd Payment, August 15, 2009 $ 4.4-MILLION Risk PERSONAL PROPERTY TAX RELIEF ACT (PPTRA) - STATE General Sales Taxes April 30, 2005 - 2009 $100 100% $90 ------------------------------------------------------_____m_____________m______________________ 90% UNFAVORABLE TREND $80 ------75:O"!O--------------74:7%""-------------70"'"------70:wr.-------------------- 80% ~ ~ ~ ~ $70 ________________________________________________m_____-----------""'0-711:0%- 70% BUDGET $60 ---------------------------------------------------------------------------------------------------------------_.-.- 60% $50 - 50% $40 --- 40% $30 $20 $10 10% $0 0% FY 2005 FY 2006 FY 2007 FY 2008 FY 2009 ~Annual Collections _VTD -Q-% of ~ The General Sales Tax is approximately 3.9% down from the prior year. May 26, 2009 II II 1111 - 10- C IT Y MANA G E R 'S B R IE FIN G INTERIM FINANCIAL STATEMENT ITEM # 58835 (Continued) Utility Taxes include Telecommunications Taxes. Mrs. Phillips advised this is an unfavorable trend and believed to be under budget by $1.6-MILLION. Utility Taxes A nril 30. 2005 - 2009 $60 ~."~-~'---~ ,~~~---_.~,.~"--,-"-~-~-~-,._~---~~-----_.~.._,----_.~ 100% UNFAVORABLE TREND BUDGET 90% $49.1 $49.4 $49.0 $50 80'10 70% $40 60% $30 50% 40% $20 30% 20% $10 10% $0 0% FY 2005 FY 2006 FY 2007 FY 2008 FY 2009 l ~~~~~~~~~tions _VTO ~% of TotalJ Business Licenses (BPOL) April 30, 2005 - 2009 $50 $45 $40 $35 $25 $20 $15 $10 $5 $0 FY 2005 FY 2006 FY 2007 FY 2008 100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% FY 2009 I Eml'iDAnnual Collections _YTD -0-% of Total I Business License BPOL renewals in March: The Actual collections down 2.7% compared to FY08 The Commissioner of Revenue projects $2M to $2. 5M under budget due to economics. May 26, 2009 " II - 11 - C IT Y MANA G E R 'S B R IE FIN G INTERIM FINANCIAL STATEMENT ITEM # 58835 (Continued) Hotel Taxes are down 3%. However, last year these taxes experienced a record high. Hotel Room Taxes Auril30.. 2005 - 2009 $35 --- ---.-------.---- 1000/0 1111 900;. 80% 70% 60% 50% 40% 30% 20% 10% 0% Restaurant Meal Taxes are experiencing an acceptable trend and revenues are expected close to Budget. UNFA VORABLE TREND $30 $25 c: ~ i ... $20 ~ ~ ~ c: ~ ~ a: 85.0% 85.0% 85.0% 85.9% -----'(; ~ ---- --co' ')-'-"- -------m=::;Tf1l"r.--- BUDGET $24.1 ______________________m__________m_____________________---------------------------l73".'6'"----------m--------------------- $22.6 $21.0 $5 $0 FY 2005 FY 2006 FY 2007 FY 2008 FY 2009 c::::JAnnual Collections _VTD -0-% o~ Tot~~ Restaurant Meal Taxes April 30, 2005 - 2009 $80 ACCEPTABLE TREND 90% $70 ------------lI2.+~-------m-------er.e%_----------------Il:J:'O.".---------------'ll3:U"r,----------------82'.-i.ii,----- <:; ~ ~ ;> <; $60 _______________________________________________m_________________________________________________ BUDGET $50 $40 $30 $20 $10 $0 FY 2005 FY 2006 FY 2007 FY 2008 FY 2009 I Ullll:IAnnual Colloc1lon. _YTD ...0;)-% of Total] 100% 80% 70% 60% 40% 30% 20% 10% 0% May 26. 2009 , II III - 12 - C IT Y MANA G E R 'S B R IE FIN G INTERIM FINANCIAL STATEMENT ITEM # 58835 (Continued) Permits and Licenses have continued to stay down and are experiencing an unfavorable trend. Building Permits have increased approximately 23 to 28%. according to the various types. Permits and Licenses April 30, 2005 - 2009 $7 100% BUDGET $6 ---------...1.3!lO-----..-$5.8..-"1!ct._------------------------------..-----~--------~~:-~--------.. 4 77.9% UNFA VORABLE TREND 90% 80% 70% 60% 50% 40% 30% 20% 10% $0 0% FY 2005 FY 2006 FY 2007 FY 2008 FY 2009 I ~Annual Collection. _VTD -0-% of TotalJ City Tax on Deeds is also experiencing an unfavorable trend. City Tax on Deeds April 30, 2005 - 2009 $14 FY 2005 FY 2006 FY 2007 FY 2008 100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% FY 2009 UNFA VORABLE TREND $12.3 $12 $10 $0 I c::::JAnnualCollectlonl _VTD -o-%OfTotall May 26, 2009 III - 13 - C I T Y MANA G E R 'S B R I E FIN G INTERIM FINANCIAL STATEMENT ITEM # 58835 (Continued) Summary of General Fund Revenues April 30, 2009 (In Millions) Local Revenues Real Estate Taxes $479.2 259.9 54.2% 52.9% F $8.2 Personal Property Taxes 78.3 17.0 21.6% 23.6% U (12.0) ,Personal Property - PPTRA 53.4 6.5 12.2% 12.2% A 00 jGeneral Sales Taxes 56.0 39.2 70.0% 75.4% U 0.6) JUtility Taxes 49.0 33.3 67.9% 72.1% U (1.6) !Restaurant Meal Taxes 48.7 40.0 l'Q,2% 83.0% A 0.0 I Business Licenses 43.2 39.0 90.3% 95.9% U (3.1) Hotel Room Taxes 24.1 19.7 81.8% 85.9% U (1.3) \Cigarette Taxes 13.2 9.6 72,X% 78.4% U (0.3) ; Automobile Licenses 9.0 6.5 72.Y% 744% U (0.5) City Tax on Deeds H.O 4.5 56.0% 73.2% U (19) Interest Income 7.0 4.6 65.6% H7.3% U (0.8) Public Service (RE and PP) 6.1 3.6 5~(()% 52.7% F 1.1 Amusement Taxes 5.6 46 H13% 7H.9% F 0.0 Rental Income 4.5 3.H H3.X% 76.7% F (05) 'Permits and Licenses 5.H 3.4 58.5% 81.6% U (1.7) iRed Light Violations 1.6 U (1.5) IVirginia Aquarium 7.2 4.1 57.1% 70.9% U (1.4) ;PoJice False Alarms 1.1 0.1 9.0% 69.3% U (0.4) iOther Local Revenues 43.2 25.1 58.1% 54.5% F (2.2) iState Revenues 102.9 78.2 76.1% 71.5% F 0.4 IFederal Revenues "1 fl ~ 71.0% 75.4% --1!..- (2.0) I L__~~_~... $1 0707 ~ 57.9% 58.5% ~ 1$2'; ()) I ='_~'^"'^.=-~'","""~='''n'''''~_U'',^_',^~^, """,^_h,~~'^~'__ ""~,^h~""'.'__""~_''',^_'w"'',_",,,.~~~~~.~_._.,,.~. ,,,_..1 >I< Reflects reductions in Recordation Fees and State Aid Law Enforcement funding. Excludes School Revenues 15 FY2009 Year To Date General Fund Expenditures Compared to Historic Trend April 30, 2009 100,0% 100% 21 i3 80% '6 c: i!i .lj ~ 60% ~ '0 1: ~ & 40% 20% 0% Jul Aug Sep Oct Nov Dee Jan Feb Mar Apr May Jun ....... Historic Trend -:l(-Percent of FY09 Budget May 26, 2009 III - 14 - C I T Y MANA G E R 'S B R IE FIN G INTERIM FINANCIAL STATEMENT ITEM # 58835 (Continued) General Fund FY 2009 Expenditures ~ Total at April 30, 2009: $925.5M, or 81.2% ~ Historical Trend 84.1% ~ Projected Expenditures at June 30. 2009 = $1,107 M ~ Budgeted Expenditures = $1, 139M ~ Historical Comparison ~ Budget to Actual S' (1 MILLIONS) avmgs n Total % of Total % of City Bud~et City Bud~et Schools 2007 (Actual) $ 41.7 4.1% $ 25.9 3.8% $ 15.8 2008 (Actual) $ 60.3 5.6% $ 25.0 3.5% $ 35.3 Recap General Fund Projections for June 30, 2009 At April 30, 2009 (in millions) Revenues $1,071 .$J.....U2 $1,046 $1.107 <$25> Expenditures (including SPSA) $32 Planned Reduction in Fund <$68> Balance Projected Fund Balance (after reservations) FY2010 Revised Revenue Budget <$61> ~ $90.1- $91.2 8.62% - 8.73% Policy 8-12% Reservations of Fund Balance General Fund (in millions) 2010 Capital Program (adopted) 2010 Operating Budget (adopted) $33.9 4.8 Loans (actual) 11.3 Encumbrances (estimated) Carryforwards and Other Reservations (estimated) Total 5.0 -6.JL $61.0 May 26, 2009 " II II II - 15 - C IT Y MANA G E R 'S B R IE FIN G INTERIM FINANCIAL STA TEMENT ITEM # 58835 (Continued) Mrs. Phillips advised Purchase Orders were "cut off" May 15, 2009, rather than the early part of June, with the idea of trying to reduce the amount of encumbrances that are carried over. When a Purchase Order is issued, the funds are encumbered in accounts, so that it is reserved and cannot be expended on something else. It is part of the Department's responsibility to manage their budget so it does not impact the subsequent year. Undesignated General Fund Balance 150 16.0% 200 12.0% o III Q) ::I 8.0% ~ ~ lL Cl 4.0% * Cl 'C ::I lD '0 ~ 00% . .. c o =100 ~ f! ~ ;3 50 2001 2002 2003 2004 2005 2006 2007 2008 ProJ 2009 - Undesignated GF Balance -%ofBudgeted GF Revenue Next Steps ~ Continue to Monitor Revenues in FY 2009 o Business Licenses - Continuous Monitoring of Future Cash Receipts Personal Property - May-June Real Estate - June ~ Report Again Next Month May 26, 2009 1111 - 16 - CITY COUNCIL COMMENTS ITEM # 58836 3:37 P.M. Council Lady Wilson advised she and Mayor Sessoms were fortunate a couple of weekends ago to visit with the Scroll and Roll group, who presented an A ward of Recognition to the City of Virginia Beach: 2009 AWARD OF RECOGNITION PRESENTED TO CITY OF VIRGINIA BEACH A LOCAL CHAMPION FOR THE EMPLOYMENT OF INDIVIDUALS WITH DISABILITIES YOUNGLIFE CAPERNAUM OF HAMPTON ROADS ITEM # 58837 Councilman Dyer referenced Councilman Villanueva's suggestion to move the City Council Retreat from August 3-4 to June or July. Councilman Dyer concurred as it is essential to have all Members in attendance. Councilman DeSteph advised he had planned his vacation to Europe in August and would not be here August 3-4. The Retreat dates will be consideredfor rescheduling. ITEM # 58838 Council Lady Henley noticed the Buffington House entrance had a sign that said Mill Dam Park not West Neck Park. The City Manager advised this is a sample of their new Park signage that the City is considering. The name has not been changed. This is just a prototype for comparison to the old sign ITEM # 58839 Mayor Sessoms expressed appreciation to the Mayor's Veterans Committee and City staff re the inspiring Memorial Day Ceremony, May 25, 2009. May 26, 2009 1II1 - 17 - CITY COUNCIL COMMENTS ITEM # 58840 Council Lady Henley referenced a memorandum re the Uranium Mining Study. Tom Leahy, Director of Public Utilities, has made a tremendous accomplishment and is "staying on top" of this situation. However, from the article in the newspaper, she did not know if the City Council was successful re having concerns heard. The City Manager advised Mr. Leahy is preparing a memorandum re the newspaper article and will distribute same in City Council's Friday package. May 26, 2009 " II 1II1 - 18 - AGE N DA REV IE W S E S S ION 3:43 P.M. ITEM # 58841 K.1.b. Ordinance to AMEND the City Code 9 6-120-2 re the regulation of personal watercraft rentals Councilman DeSteph suggested referring this Ordinance to the Beaches and Waterways Commission for their review. Vice Mayor Jones suggested this Ordinance be ADOPTED and then referred to Beaches and Waterways, for their evaluation. This Ordinance can be amended. ITEM # 58842 K. 3. Ordinance to DECLARE restrictive easements over thirteen (13) City-owned properties in the Interfacility Traffic Area (ITA) to be EXCESS property and A UTHORIZE the City Manager to convey these properties to the United States of America Department of the Navy (USN) for $4,050,000: 3592 Indian River Road Landstown Road 2433 Salem Road Salem Road, Parcel B Salem Road, Parcel A 2561 Salem Road Salem Road (6 parcels) 2437 Salem Road Council Lady Henley referenced Item K.3. re the Interfacility Traffic Area and expressed concern as live stock production is prohibited at one of the ITA levels. The Wildlife Rehabilitators are interested in using one of these parcels. Deputy City Attorney Rebecca Kubin advised the Navy has reviewed the proposal and is agreeable with the concept. The City would not go forward with the Ordinance without having the signed documentation from the Navy confirming their agreement. ITEM # 58843 Councilman Wood distributed a proposed ADD-ON Resolution: Resolution DIRECTING the Department of Planning to produce a Policy in regard to the use of "Chinese Drywall" in construction projects in Virginia Beach ITEM # 58844 BY CONSENSUS, the following items shall compose the CONSENT AGENDA: K. ORDINANCES/RESOLUTIONS 1. Ordinance to AMEND the City Code: a. H 5-602, 12.43.2 and 38-3 re the regulation and control of animals and birds b. 9 6-120-2 re the regulation of personal watercraft rentals May 26, 2009 II I' - 19 - AGE N DA REV IE W S E S S ION ITEM # 58844 (Continued) 2. Resolution COMMENDING Robert S. Miller II/, for his Twenty-Eight (28) Years of Volunteer Service with the Special Olympics 3, Ordinance to DECLARE restrictive easements over thirteen (13) City-owned properties in the Interfacility Traffic Area (ITA) to be EXCESS property and A UTHORIZE the City Manager to convey these properties to the United States of America, Department of the Navy (USN) for $4,050,000: 3592 Indian River Road Landstown Road 2433 Salem Road Salem Road, Parcel B Salem Road, Parcel A 2561 Salem Road Salem Road (6 parcels) 2437 Salem Road 4. Ordinance to GRANT Theme Restaurants, Inc., t/a II Giardino Ristorante two five (5) year Franchise Agreements for open air cafes at the Resort Area. 5. Ordinance to AUTHORIZE the City Manager to execute afour (4) month lease for vehicular parking with the Dolphin Run Condominium Association, Inc. at 3rd Street and Atlantic Avenue 6. Resolution of the CITY OF VIRGINIA BEACH re Soot Blight Abatement (City Code 916-39) Determination at 620 Counselor Square. DISTRICT 3 - ROSE HALL 7. Ordinance to A UTHORIZE the acquisition of blighted property by eminent domain at 620 Counselor Square for the purpose of rehabilitation to a qualified builder, developer or other entity and APPROPRIATE $82, 778 neededfor acquisition. 8. Ordinance to AUTHORIZE temporary encroachments into a portion of City right-ofway for JAMES M. ARNHOLD at 4332 Sandy Bay Drive to construct and maintain three (3) parking areas and two (2) four (4 ") inch conduits. DISTRICT 4- BA YSIDE 9. Ordinance to APPROPRIATE $660,901 Federal Stimulus funds from the American Recovery and Reinvestment Act (ARRA) under the Community Development Block Grant to the Department of Housing and Neighborhood Preservation's FY 2008-09 operating budget re rehabilitation of eligible owner- occupied housing units. 10. Ordinance to APPROPRIA TE $ 70, 000 from the fund balance of the General Fund to provide an interest-free loan to the Plaza Volunteer Rescue Squadfor the purchase of a replacement ambulance. Resolution DIRECTING the Department of Planning to produce Policy in regard to the use of "Chinese Drywall" in construction projects in Virginia Beach (ADD-ON) May 26, 2009 !I II II - 20 - AGE N VA REV IE W S E S S ION ITEM # 58844 (Continued) Councilman DeSteph will vote a VERBAL NA Y on Item K. 1 b (personal watercraft rentals). Councilman Wood DISCLOSED in accordance with the Virginia State and Local Government Conflict of Interests Act re Item K 10. Ordinance to APPROPRIATE $70,000 from the fund balance of the General Fund to provide an interest-free loan to the Plaza Volunteer Rescue Squadfor the purchase of a replacement ambulance. Councilman Wood's wife is a member of the Plaza Volunteer Rescue Square and currently serves as Administrative Second Lieutenant/Treasurer. She participated in the preparation of the rescue squad's successful application for a State Rescue Squad Assistance Fund Grant. She is a volunteer and receives no compensation. Councilman Wood wishes to voluntarily disclose the facts. The City Attorney's Office has advised him that the Conflict of Interests Act provides that I may vote on, and participate in discussions of this ordinance without restriction. Councilman Wood's correspondence of May 26, 2009, is hereby made a part of the record. May 26, 2009 II II - 21 - AGE N DA REV IE W S E S S ION ITEM # 58845 NO ACTION BY CONSENSUS L. PLANNING - NO ACTION NECESSARY 1. Ordinance to AMEND Appendix C, Site Plan Ordinance. Section 5B. re floodplains and the requirements of the National Flood Insurance Program. (Expedited and Adopted 4/28/09 Item #58765) 2. Application of the CITY OF VIRGINIA BEACHfor a Change of Zoning District Classification from R-5D Residential Duplex to I-I Light Industrial at 212-228 Fair Lady Road and 2305 Potters Road. (Deferred by the Planning Commission) DISTRICT 6 - BEACH ITEM # 58846 BY CONSENSUS, the following items shall compose the PLANNING BY CONSENT AGENDA: M PLANNING 1. Application of the CITY OF VIRGINIA BEACH for a street closure at Terrell Avenue (unimproved) to incorporate the right-of-way into surrounding property owned by the City. DISTRICT 6 - BEACH 2. Application of the CA V ALlER GOLF and YACHT CL UB for the closure of a portion of Cardinal Road from the north side of Starling Court to its terminus. DISTRICT 5 -LYNNHAVEN 3. Application of ELLIS-GIBSON DEVELOPMENT GROUP / LAKE GEM II, LLC for a Conditional Use Permit re a seasonal outdoor "green" market at 2181 Upton Drive. DISTRICT 7 - PRINCESS ANNE 4. Application of NEW CINGULAR WIRELESS PCS, LLC (T/A AT&T) for a Conditional Use Permit re a communication tower at 6009 Blackwater Road. DISTRICT 7 - PRINCESS ANNE 5. Application of CHESTER and VIVIAN TUCKER for a Conditional Use Permit to convert their single family residence into a Country Inn at 1557 Sandbridge Road. DISTRICT 7 - PRINCESS ANNE May 26. 2009 II II - 22 - AGE N DA REV I E W S E S S ION ITEM # 58846 (Continued) 6. Application of FLORDELIZA and DANIEL BAYANGOS, JR., DBA LIZA'S RESIDENTIAL CARE for a Conditional Use Permit re senior residential care at 5084 Langston Court. DISTRICT 2 - KEMPSVILLE 7. Application of PRINCESS ANNE CHURCH OF CHRIST for a Conditional Use Permit re a church at 3016 Virginia Beach Boulevard. DISTRICT 5 - LYNNHA VEN 8. Application of the CITY OF VIRGINIA BEACH for a Change of Zoning District Classification from R-5D Residential Duplex and A-12 Apartment to I-I Light Industrial at London Bridge and Potters Road. (AICUZ) DISTRICT 6 - BEACH 9. Application of RICHMOND 20MHz, LLC, Modification of Conditions No. 1 and 3 (approved by City Council on November 22, 2005) re location and the number of antenna arrays allowed on the tower at 1000 Great Neck Road. DISTRICT 5 - LYNNHA VEN 10. Ordinance to A UTHORIZE a new Official Zoning Map, which shall replace the existing Map, due to a change in the computer mapping format used to store the data and develop the printed copies. There are no changes between the current and proposed maps in regard to the Zoning Districts or to their existing locations. Item M4.( New Cingular Wireless PCS, LLC (T/A AT & T) will be DEFERRED INDEFINITELY, BY CONSENT. Mayor Sessoms DISCLOSED and will ABSTAIN pursuant to Section 2,2-3115(E), Code of Virginia re Item M3. (Ellis-Gibson Development Group/Lake Gem JJ, LLC). Mayor Sessoms will ABSTAIN from voting on this transaction because he is an Officer of TowneBank, which is located at 297 Constitution Drive, and the applicant may obtain financing from TowneBank. Mayor Sessoms' correspondence of May 26, 2009, is hereby made a part of the record. May 26, 2009 1,1 II - 23 - ITEM # 58847 Mayor William D. Sessoms, Jr. entertained a motion to permit City Council to conduct its CLOSED SESSION, pursuant to Section 2.2-3711 (A), Code of Virginia, as amended, for the following purpose: PERSONNEL MATTERS: Discussion, consideration of or interviews of prospective candidates for employment, assignment, appointment, promotion, performance, demotion, salaries, disciplining or resignation of specific public officers, appointees or employees pursuant to Section 2.2-3711 (A)(1) Council Appointments: Boards, Commissions, Committees, Authorities, Agencies and Appointees PUBLICLY-HELD PROPERTY: Discussion or consideration of the, acquisition, or of the disposition of publicly-held property, where discussion in an open meeting would adversely affect the bargaining position or negotiating strategy of the public body pursuant to Section 2.2-3711 (A)(3). Acquisition/Disposition of City Property: Norfolk Southern Right-of Way Lynnhaven District Princess Anne District Upon motion by Council Lady Wilson, seconded by Councilman Dyer, City Council voted to proceed into CLOSED SESSION at 4:04 P.M. Voting: 11- 0 Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None (Closed Session: 4:10 P.M. - 5:08 P.M.) (Dinner: 4:05 P.M. - 4:10 P.M.) 5:08 P.M. - 5:50 P.M.) (Break: May 26, 2009 1II1 I - 24- FORMAL SESSION VIRGINIA BEACH CITY COUNCIL May 26, 2009 6:00 P.M. Mayor William D. Sessoms, Jr. called to order the FORMAL SESSION of the VIRGINIA BEACH CITY COUNCIL in the Council Chamber, City Hall Building, on Tuesday, May 26,2009, at 6:00 P.M Council Members Present: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Absent: None INVOCATION: Pastor Edward L. Moore Grace Covenant Presbyterian Church PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA Mayor Sessoms DISCLOSED as an officer of TowneBank (which has a corporate office located at 297 Constitution Drive in Virginia Beach), he is directly and indirectly involved in many of TowneBank's transactions. However, due to the size of TowneBank and the volume of transactions it handles, TowneBank has an interest in numerous matters in which he is not personally involved and of which he does not have personal knowledge. In that regard, he is always concerned about the appearance of impropriety that might arise if he unknowingly participates in a matter before City Council in which TowneBank has an interest. Mayor Sessoms also has similar concerns with respect to Prudential Towne Realty, which is an affiliate of TowneBank. In order to ensure his compliance with both the letter and spirit of the State and Local Government Conflict of Interests Act (the "Act'), it is his practice to thoroughly review each City Council agenda to identify any matters in which he might have an actual or potential conflict. If, during his review of an agenda, he identifies a matter in which he has a "personal interest ", as defined by the Act, he will either abstain from voting, or file the appropriate disclosure letter with the City Clerk to be included in the official records of City Council. Mayor Sessoms' letter of March 24, 2009, is hereby made a part of the record. 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. 1n 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. May 26, 2009 1II1 - 25 - Council Lady Rosemary Wilson DISCLOSED her husband is a principal in the accounting firm of Goodman and Company and is directly and indirectly involved in many of Goodman and Company's transactions. However, due to the size of Goodman and Company and the volume of transactions it handles in any given year, Goodman and Company has an interest in numerous matters in which her husband is not personally involved and of which she does not have personal knowledge. In order to ensure her compliance with both the letter and the spirit of the State and Local Government Conflict of Interests Act, it is her practice to thoroughly review the agenda for each meeting of City Council for the purpose of identifying any matters in which she might have an actual or potential conflict. if, during her review she identifies any matters, she will prepare and file the appropriate disclosure letter to be recorded in the official records of City Council. Council Lady Wilson regularly makes this disclosure. Council Lady Wilson's letter of January 27, 2004, is hereby made a part of the record. Council Lady Rosemary Wilson DISCLOSED she is a Real Estate Agent affiliated with Prudential Decker Realty. Because of the nature of Real Estate Agent affiliation, the size of Prudential, and the volume of transactions it handles in any given year, Prudential has an interest in numerous matters in which she is not personally involved and of which she does not have personal knowledge. In order to ensure her compliance with both the letter and the spirit of the State and Local Government Conflict of Interests Act, it is her practice to thoroughly review the agenda for each meeting of City Council for the purpose of identifying any matters in which she might have an actual or potential conflict. if, during her review she identifies any matters, she will prepare and file the appropriate disclosure letter to be recorded in the official records of City Council. Council Lady Wilson regularly makes this disclosure, Council Lady Wilson's letter of January 27, 2004, is hereby made a part of the record. May 26, 2009 II II - 26 - Item V-E. CERTIFICA TION ITEM # 58848 Upon motion by Councilman Dyer, seconded by Council Lady Wilson, City Council CERTIFIED THE CLOSED SESSION TO BE IN ACCORDANCE WITH THE MOTION TO RECESS. Only public business matters lawfully exempt from Open Meeting requirements by Virginia law were discussed in Closed Session to which this certification resolution applies. AND, Only such public business matters as were identified in the motion convening the Closed Session were heard. discussed or considered by Virginia Beach City Council. Voting: 11-0 Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D, Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None May 26, 2009 II II RESOLUTION CERTIFICATION OF CLOSED SESSION VIRGINIA BEACH CITY COUNCIL WHEREAS: The Virginia Beach City Council convened into CLOSED SESSION, pursuant to the affirmative vote recorded in ITEM #58847, Page 23, and in accordance with the provisions of The Virginia Freedom of Information Act, and, WHEREAS: Section 2.2-3712 of the Code of Virginia requires a certification by the governing body that such Closed Session was conducted in conformity with Virginia law. NOfY, THEREFORE, BE IT RESOL VED: That the Virginia Beach City Council hereby certifies that, to the best of each member's knowledge, (a) only public business matters lawfully exempted from Open Meeting requirements by Virginia law were discussed in Closed Session to which this certification resolution applies; and, (b) only such public business matters as were identified in the motion convening this Closed Session were heard, discussed or considered by Virginia Beach City Council. ~~ th Hodges Fraser, MMC City Clerk May 26, 2009 1,1 II - 27 - Item V-F.1. ITEM # 58849 Upon motion by Councilman Dyer, , seconded by Council Lady Wilson, City Council APPROVED the MINUTES of the SPECIAL FORMAL SESSION of May 5, 2009, and FORMAL SESSION of May 12, 2009. Voting: 11-0 Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None May 26, 2009 1,1 II - 28 - Item V-G. MAYOR'S PRESENTATION ITEM # 58850 Mayor Sessoms PRESENTED a Resolution COMMENDING Robert S. Miller III, Special Olympics This Resolution recognized Robert S. Miller, 111 for his twenty-eight (28) years of Volunteer Service to the Special Olympics. Special Olympics is a year-round international program of sports training and athletic competition for children and adults with intellectual disabilities with a goal of helping to bring persons with such disabilities into the larger society under conditions whereby they are accepted, respected and given the chance to become useful and productive citizens. Mr. Miller's efforts on behalf of the disabled also include his support of the BIZNET Residential Village for adults with disabilities, his work with People First and Aktion Club of Virginia Beach. a Kiwanis program for adults with disabilities. Mr. Miller expressed appreciation to the Mayor and City Council. Nancy Creech. President - Neptune Festival, King Neptune and a host of supporters were in attendance. Mr, Miller recognized his coaches, athletes and their parents in attendance. Mr. Miller advised in twenty-eight (28) years, he has never had an athletic or parent come to him and ask: "Why did this happen to me?" May 26, 2009 1II1 - 29 - Item V-G. 2. MAYOR'S RECOGNITION ITEM # 58851 Mayor Sessoms RECOGNIZED Diana Watson's Princess Anne High School Government Class in attendance for the City Council Session of May 26, 2009: Pratyush Agarwal Joseph Newton Krystopher Barnard Kevin Mitchell Brandon Carter John Delos Reyes Jamie Dailey Brooke Neubauer Allison Peters Sandy Williams Kerry Hughes Eden Undeman Kaitlin Kelly Kelly Bryant Rachel Tucker Brooke Howerin Paula Wiley Brittany Kolodziejczyk Jeremiah Cahill Miranda Bellamy Kelsey Ryan Victoria Goodman Rachel Stein Alex Lichtenstein Cacian Forres Tianran Song Taylor Spooner Elizabeth Connor Meghan Pryear Joseph Malfitano Councilman DeSteph sponsored the students. May 26, 2009 - 30 - Item V-H.1.a.b. PUBLIC HEARING ITEM # 58852 Mayor Sessoms DECLARED A PUBLIC HEARING: FY 2009-2010 RESOURCE MANAGEMENT PLAN a. Dolphin Run - 3rd Street and Atlantic Avenue b. Theme Restaurants, Inc. (t/a II Giardino Ristorante) - 910 Atlantic Avenue There being no speakers, Mayor Sessoms CLOSED THE PUBLIC HEARING. 1II1 May 26, 2009 II II II - 31 - Item V-H.2. PUBLIC HEARING ITEM # 58853 Mayor Sessoms DECLARED A PUBLIC HEARING: 2. EXCESS CITY PROPERTY - Interfacility Traffic Area Conveyance of easements - Indian River, Landstown and Salem Roads There being no speakers, Mayor Sessoms CLOSED THE PUBLIC HEARING. May 26, 2009 II II - 32 - Item V-I.l. ADD-ON ITEM # 58854 Upon motion by Vice Mayor Jones, seconded by Councilman Wood. City Council ADDED to the Consent Agenda as Item 11. Resolution DIRECTING the Department of Planning to produce a Policy in regard to the use of "Chinese Drywall" in construction projects in Virginia Beach. Voting: 11-0 Council Members Voting Aye: Glenn R. Davis. William R. "Bill" DeSteph, Harry E. Diezel. Robert M Dyer. Barbara M Henley. Vice Mayor Louis R. Jones. Mayor William D. Sessoms, Jr.. John E. Uhrin, Ron A. Villanueva. Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None May 26. 2009 - 33 - Item V-L2. ADOPT AGENDA FOR FORMAL SESSION ITEM # 58855 BY CONSENSUS, City Council ADOPTED: AGENDA FOR THE FORMAL SESSION ADDED: Resolution DIRECTING the Department of Planning to produce a Policy in regard to the use of "Chinese Drywall" in construction projects in Virginia Beach. II II May 26, 2009 1,1 I - 34 - Item V-K. ORDINANCES/RESOLUTIONS ITEM # 58856 Upon motion by Vice Mayor Jones, seconded by Councilman DeSteph, City Council APPROVED in ONE MOTION Items IaI, 2, 3, 4, 5, 6,7,8,9,10 and 11 (ADD-ON) of the CONSENT AGENDA. Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph. Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None Councilman Wood DISCLOSED in accordance with the Virginia State and Local Government Conflict of Interests Act re Item K 10. Ordinance to APPROPRIATE $70,000 from the fund balance of the General Fund to provide an interest-free loan to the Plaza Volunteer Rescue Squad for the purchase of a replacement ambulance. Councilman Wood's wife is a member of the Plaza Volunteer Rescue Square and currently serves as Administrative Second Lieutenant/Treasurer. She participated in the preparation of the rescue squad's successful application for a State Rescue Squad Assistance Fund Grant. She is a volunteer and receives no compensation. Councilman Wood wished to voluntarily disclose the facts, The City Attorney's Office has advised him that the Conflict of Interests Act provides that he may vote on, and participate in discussions of this ordinance without restriction. Councilman Wood's correspondence of May 26, 2009, is hereby made a part of the record. May 26, 2009 II I - 35 - Item V-K.l.a. ORDINANCES/RESOLUTIONS ITEM # 58857 Upon motion by Vice Mayor Jones, seconded by Councilman DeSteph, City Council ADOPTED: Ordinance to AMEND the City Code 995-602, 12.43,2 and 38-3 re the regulation and control of animals and birds Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None May 26, 2009 III 1 AN ORDINANCE TO AMEND SECTIONS 5- 2 602, 12-43.2 AND 38-3 OF THE CITY CODE 3 PERTAINING TO REGULATION AND 4 CONTROL OF ANIMALS AND BIRDS 5 6 SECTIONS AMENDED: ~~5-602f 12-43.2 and 38.3 7 8 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 9 BEACH, VIRGINIA: 10 11 That Sections 5-602, 12-43.2 and 38.3 of the Code of the City of Virginia Beach, 12 Virginia, are hereby amended and reordained to read as follows: 13 14 Sec. 5-602. Killing or injuring birds, etc. 15 16 f9l It shall be unlawful for any person to kill or injure any bird or to destroy the 17 nests or eggs of any bird, except starlings, in the bird sanctuary established by section 18 5-600; provided that such restrictions shall not prevent the lawful hunting of game birds 19 under authority of a permit issued pursuant to the provisions of section 38-3 of this 20 Code. 21 22 i.Q2 The provisions of this section shall not be applicable to any federal, state 23 or local qovernment animal or fowl manaqement aqency aqents actinq within the scope 24 of their lawful duties and as permitted under the provisions of the Federal Miqratory Bird 25 Treaty Act. 26 27 Sec. 12-43.2. Fireworks and pyrotechnic displays unlawful; exceptions. 28 29 (a) Except as otherwise provided in this section it shall be unlawful for any 30 person to transport, manufacture, assemble, store, sell, offer or display for sale, or to 31 buy, use, possess, ignite or explode any firecracker, torpedo, sky rocket, sparkler, or 32 other substance or device that contains any explosive or flammable compound or 33 substance, and is intended or commonly known as fireworks, and which explodes, rises 34 into the air or travels laterally, fires projectiles or discharges sparks into the air. 35 36 (b) The provision of this section shall not be applicable to ffiany organization 37 or group of individuals which has been granted a permit by the fire official for the public 38 or private display of fireworks or pyrotechnics, provided that such fireworks are stored, 39 handled, transported and used in compliance with the terms and conditions of such 40 permit; or (2) any federal, state or local qovernment animal or fowl manaqement aqency 41 aqents actinq within the scope of their lawful duties. Such aqents shall provide the Fire 42 Marshall's Office with at least 24 hours notice of intent to possibly employ pyrotechnic 43 tactics. 44 III 45 (c) The fire marshal or any law enforcement officer shall be authorized to 46 seize, take, remove or cause to be removed, at the expense of the owner, all fireworks 47 offered or exposed for display or sale, stored or held in violation of this section. 48 49 (d) Violation of any provision of this section shall constitute a Class 1 50 misdemeanor. 51 52 Sec. 38-3. Discharge of firearms, air guns, etc. 53 54 (a) It shall be unlawful for any person to discharge any firearm, spring- 55 propelled rifle or pistol or air-propelled rifle or pistol, from or across any land or water 56 north or west of the trace of the line beginning at the intersection of North Landing Road 57 and the Chesapeake-Virginia Beach city boundary line; thence northwardly along North 58 Landing Road to Indian River Road; thence eastwardly along Indian River Road to New 59 Bridge Road; thence northeastwardly along New Bridge Road to Sandbridge Road, 60 thence eastwardly along Sand bridge Road to its intersection with the Atlantic Ocean, or 61 across any land north of False Cape State Park and east of Shipps Bay and Point 62 Creek. This prohibition shall not apply to shotguns discharging pellets under the 63 following conditions: 64 65 (1) On land that is fifty (50) acres or more of contiguous area, or less than 66 fifty (50) acres of contiguous area south of the trace of the line beginning 67 at the intersection of Elbow Road and the Chesapeake-Virginia Beach city 68 boundary line; thence northeastwardly along Elbow Road to Salem Road; 69 thence southeastwardly along Salem Road to North Landstown Road; 70 thence northeastwardly along Landstown Road to Princess Anne Road; 71 thence southeastwardly along Princess Anne Road to Sand bridge Road; 72 thence eastwardly along Sandbridge Road to its intersection with the 73 Atlantic Ocean; and 74 (2) Under one (1) ownership; and 75 (3) Used primarily for agricultural purposes; and 76 (4) The landowner has applied for an annual permit from the city manager to 77 use his property for this purpose, which permit shall be granted by the city 78 manager if the applicant meets the requirements of this section; and 79 (5) The person discharging a shotgun as herein set forth shall, at all times 80 while engaged in such activity, have in his possession written permission 81 from the landowner to discharge such weapon on the premises; and 82 (6) All permits shall expire on the next June 30 after the date of issuance. 83 84 (b) Notwithstanding the provisions of subsection (a)(4) above, no permit shall 85 be issued to a landowner if it is determined by the city manager or his duly authorized 86 agent that the issuance of such permit would be detrimental to the public safety, and 87 any permit that has been issued and is in effect may be revoked by the city manager if it 88 is determined by the city manager or his duly authorized agent that conditions have 89 changed since the date of issuance of the permit that cause the continued use of the 90 land for the permitted purpose to be detrimental to the public safety. II I 91 92 (c) It shall be lawful to discharge firearms of .22-caliber or less south of the 93 trace line enumerated in subsection (a) subject to the provisions of this section. It shall 94 be unlawful to discharge any firearms greater than .22-caliber any place within the city; 95 provided, however, that muzzleloading rifles using a charge of black powder or black 96 powder equivalent may be used to hunt deer during the open season prescribed 97 therefor by the Department of Game and Inland Fisheries south of the trace of the line 98 described in subsection (a)(1). For purposes of this section, a muzzleloading rifle shall 99 mean a single-shot flintlock or percussion rifle, .45 caliber or larger, firing a single lead 100 projectile or sabot with a .38 caliber or larger nonjacketed lead projectile of the same 101 caliber loaded from the muzzle of the weapon and propelled by at least fifty (50) grains 102 of black powder or black powder equivalent. 103 104 (d) Notwithstanding any other provisions of this section, it shall be unlawful for 105 any person to discharge any firearm, spring-propelled rifle or pistol, or air-propelled rifle 106 or pistol from, on, across or within one hundred fifty (150) yards of any building, 107 dwelling, street, sidewalk, alley, roadway or public land or public place within the city 108 limits. 109 110 (e) The prohibitions of this section shall not apply to the operation of a 111 shooting event that is sponsored by an organized group, provided, the written approval 112 of the chief of police as to the safety and location of the event is obtained prior to the 113 event. 114 115 (f) Nothing in this section shall be construed to prohibit the discharge of 116 firearms and other weapons by ill law enforcement agoncies and officers; (2) military 117 forces personnel; or (3) federal, state or local qovernment animal or fowl manaqement 118 aqencv aqents in the city as part of authorized training or in the performance of their 119 duties. 120 121 (g) A violation of any provision of this section shall constitute a Class 1 122 misdemeanor. 123 Adopted by the City Council of the City of Virginia Beach, Virginia, on this 26th day of May ,2009. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: '-:];7/1/''/ 4- C(,-"7-d'~ Police Department ~~.~ II I - 36 - Item V-K.l.b. ORDINANCES/RESOLUTIONS ITEM # 58858 Attorney Lisa Murphy, LeClair Ryan, 283 Constitution Drive, Suite 525, Phone: 271-4537, represented Bell Air, Inc. Attorney Murphy registered in OPPOSIION. The present Section 29.1-749.2 of the State Statute authorizes the City to regulate jet skis in the City, and limits the Jet Ski operations now to 800 cc 'so Attorney Murphy advised in order to change the City's Jet Ski regulations to make them less stringent would require a change to that enabling legislation at the General Assembly. Attorney Murphy understands the operation next to her client's business has three (3) jet skis that meet the requirements. The operation has bought jet skis that do not meet the requirements. There is no mechanical device that can regulate a jet ski's speed. Attorney R.E. Bourdon, Pembroke Office Park. Building 21, 281 Independence Boulevard, Phone: 499- 8972, represented Rudee Inlet Jet Skis Rental, and spoke in SUPPORT of the Ordinance. The jet ski manufacturers ceased to manufacture two-stroke engines for jet skis in 2004. The regulations that were in place were approved in 1998. The four-stroke engines which is all that is manufactured now, are much more environmentally friendly from a water and air quality standpoint. All of Rudee Inlet Jet Skis have rev limiters and can limit the speedfrom 35 to 38 miles an hour. This ordinance corrects the problem. Upon motion by Councilman Uhrin, seconded by Councilman Davis, City Council ADOPTED: Ordinance to AMEND the City Code ~ 6-120-2 re the regulation of personal watercraft rentals Staffwas directed to refer the Ordinance to the Beaches and Waterways Commission for evaluation. Voting: 9-2 Council Members Voting Aye: Glenn R. Davis, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: William R. "Bill" DeSteph and Harry E. Diezel Council Members Absent: None May 26, 2009 "I 1 AN ORDINANCE TO AMEND SECTION 6- 2 120.2 OF THE CITY CODE PERTAINING TO 3 REGULATION OF PERSONAL 4 WATERCRAFT RENTALS 5 6 SECTION AMENDED: S 6-120.2 7 8 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 9 BEACH, VIRGINIA: 10 11 That Section 6-120.2 of the Code of the City of Virginia Beach, Virginia, is hereby 12 amended and reordained to read as follows: 13 14 Sec. 6-120.2. Regulation of personal watercraft rentals. 15 16 (a) Any business which offers personal watercraft for rent shall require any 17 person to whom a personal watercraft is rented, and any other person who will operate 18 the personal watercraft, to fill out and sign a rental agreement or application. Such 19 agreement or application, which must include the full legal name, address, date of birth 20 and social security number of the renter and any other operator(s), shall be kept on file 21 for a minimum of ninety (90) days. 22 23 (b) Any business which offers personal watercraft for rent shall also require 24 any person to whom a personal watercraft is rented, and any other person who will 25 operate the personal watercraft, to present, prior to such rental or operation, a 26 government-issued identification card containing his or her photograph, and shall retain 27 such identification card, or a copy thereof, during the time the personal watercraft is 28 being rented. 29 30 (c) No person who rents, leases or operates a personal watercraft shall 31 knowingly misrepresent any material fact or falsify any information requested on the 32 rental agreement or application. 33 34 (d) Any business which offers personal watercraft for rent on a short-term 35 basis (e.g., by the hour or half-hour) shall have at least one motorboat of at least fifty 36 (50) horsepower operated by an employee or agent of the business, in order to monitor 37 and ensure the safe operation of the personal watercraft. 38 39 (e) No business which offers personal watercraft for rent shall rent a personal 40 watercraft that has an engine displacement which exceeds eight hundred (800) cubic 41 centimeters unless the personal watercraft is equipped with a mechanical device that 42 cannot be disabled or removed by a renter of the watercraft and that limits the maximum 43 attainable speed of the watercraft to no more than 40 miles per hour. 44 45 (f) Any business which offers personal watercraft for rent shall have at tease 46 least two (2) marine VHF radios in operation during the time that a personal watercraft II I 47 rental is being operated, and such radios shall monitor channel 16 whenever they are 48 not being actively used on a working channel. 49 50 (g) No business which offers personal watercraft for rent shall rent a personal 51 watercraft to any person who IS prohibited by state law from operatinq a personal 52 watercraft. 53 54 ib.l A violation of any provision of this section shall constitute a Class 3 55 misdemeanor. Adopted by the City Council of the City of Virginia Beach, Virginia, on this 26th day of May, 2009. II !' - 37 - Item V-K.2. ORDINANCES/RESOLUTIONS ITEM # 58859 Upon motion by Vice Mayor Jones, seconded by Councilman DeSteph, City Council ADOPTED: Resolution COMMENDING Robert S. Miller III, for his twenty-eight (28) years of Volunteer Service to the Special Olympics Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None May 26, 2009 II I Requested by Mayor Sessoms, Vice-Mayor Jones, and Councilmembers Davis, DeSteph, Diezel, Dyer, Henley, Uhrin, Villanueva, Wilson, and Wood 1 A RESOLUTION COMMENDING ROBERT S. 2 MILLER, III FOR HIS lWENTY-EIGHT YEARS OF 3 VOLUNTEER SERVICE TO THE SPECIAL 4 OLYMPICS 5 6 WHEREAS, Robert S. Miller III is a life-long resident of Virginia Beach; and 7 8 WHEREAS, Mr. Miller's volunteer service to his community include his work on 9 behalf of the Virginia Beach Foundation, the Pembroke Kiwanis Club, Virginia Beach 10 Vision, and eight years of service on the Virginia Beach Planning Commission; and 11 12 WHEREAS, for twenty-eight years, his most significant volunteer work has been 13 on behalf of children and adults with disabilities through the Virginia Special Olympics 14 and Area 2 Special Olympics programs; and 15 16 WHEREAS, Special Olympics is a year-round international program of sports 17 training and athletic competition for children and adults with intellectual disabilities with 18 a goal of helping to bring persons with such disabilities into the larger society under 19 conditions whereby they are accepted, respected, and given the chance to become 20 useful and productive citizens; and 21 22 WHEREAS, Mr. Miller has expanded his support of the Virginia Special Olympics 23 by reaching out to involve many diverse members of the community including 24 volunteers and leadership of the Virginia Beach Neptune Festival who have, for fourteen 25 years, joined with him in supporting the athletic events thereby educating many in the 26 needs and understanding of persons with disabilities and providing an avenue for 27 increased participation for the community as a whole; and 28 29 WHEREAS, Mr. Miller's efforts on behalf of the disabled also include his support 30 of the BIZNET Residential Village for adults with disabilities and his work with People 31 First and Aktion Club of Virginia Beach, a Kiwanis program for adults with disabilities; 32 and 33 34 WHEREAS, his volunteer efforts reflect his deep commitment to improve the 35 quality of life for all of our citizens, especially those with special needs. 36 37 NOW THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 38 VIRGINIA BEACH, VIRGINIA: 39 40 That the City Council hereby commends Robert S. Miller, III for his twenty-eight 41 years of volunteer service to the Special Olympics. 42 43 Adopted by the City Council of the City of Virginia Beach, Virginia, this 26th 44 day of March , 2009. II I APPROVED AS TO LEGAL SUFFICIENCY: 1nv-/~ b ,~____. City Attorney's Office CA 11132 R-3 May 20, 2009 , I, II I - 38 - Item V-K.3. ORDINANCES/RESOLUTIONS ITEM # 58860 Upon motion by Vice Mayor Jones, seconded by Councilman DeSteph. City Council ADOPTED: Ordinance to DECLARE restrictive easements over thirteen (13) City- owned properties in the Interfacility Traffic Area (ITA) to be EXCESS property and AUTHORIZE the City Manager to convey these properties to the United States of America, Department of the Navy (USN) for $4,050,000: 3592 Indian River Road Landstown Road 2433 Salem Road Salem Road, Parcel B Salem Road, Parcel A 2561 Salem Road Salem Road (6 parcels) 2437 Salem Road Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None May 26, 2009 II I 1 2 ORDINANCE TO DECLARE RESTRICTIVE EASEMENTS OVER 3 THIRTEEN (13) CITY-OWNED PROPERTIES IN THE 4 INTERFACILlTY TRAFFIC AREA (ITA) TO BE EXCESS 5 PROPERTY AND AUTHORIZE THE CITY MANAGER TO 6 CONVEY SAME TO THE UNITED STATES OF AMERICA 7 8 WHEREAS, the City of Virginia Beach (the "City") is the owner of thirteen (13) 9 certain parcels of land (collectively, the "Properties") located in the Inter-facility Traffic 10 Area (the "ITA") in the City of Virginia Beach, Virginia, which Properties are identified 11 (by location, size and GPIN) as follows: 12 13 3592 Indian River Road, 51.84 acres, 1483-38-6300; 14 2561 Salem Road 18.45 acres, 1484-22-6306; 15 Salem Road 12.428 Acres, 1484-21-5994; 16 Salem Road Parcel B, 17.38 Acres, 1484-41-0190; 1 7 Salem Road Parcel A 1.11 Acres 1484-30-8994; 18 Salem Road 9.56 Acres 1484-31-9964; 19 Salem Road 16.526 Acres 1483-59-8490; 20 Salem Road 1.531 Acres 1484-50-8055; 21 Salem Road 23.882 Acres 1484-60-3726; 22 Landstown Road 31.85 Acres 1484-61-2506; 23 Salem Road 19.733 Acres 1484-21-6047; 24 2433 Salem Road 2.072 Acres 1484-23-6232; and 25 2437 Salem Road 6.137 Acres 1484-23-8037; 26 27 WHEREAS, on September 27, 2007, the City and the United States of 28 America, Department of the Navy (the "Navy") entered into an agreement (the 29 "Encroachment Partnering Agreement") to partner to acquire property in the ITA; 30 31 WHEREAS, the terms and provisions of the Encroachment Partnering 32 Agreement provide that the City will sell to the Navy restrictive easements (the 33 "Restrictive Easements") over property the City acquires in the ITA, and in exchange the 34 Navy will pay to the City the fair market value of the Restrictive Easements, up to 50% 35 of the City's acquisition cost of each ITA property; 36 37 WHEREAS, the City acquired the Properties pursuant to the ITA 38 Acquisition Program and the APZ-1/Clear Zone Acquisition Program; 39 40 WHEREAS, the City funded the acquisition of ten (10) of the Properties 41 through a partnership with the Commonwealth of Virginia (the "Commonwealth"), with 42 the City and the Commonwealth each contributing fifty percent (50%) of the acquisition 43 funds; 44 45 WHEREAS, the City Council of the City of Virginia Beach finds that the 46 Restrictive Easements over the Properties are in excess of the City's needs and finds 47 that the sale of the Restrictive Easements over the Properties to the Navy, pursuant to 48 the terms of the Encroachment Partnering Agreement entered into in 2007, will allow , I "I 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 the City and the Commonwealth to recoup up to 50% of the purchase price of these Properties; NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: 1. That Restrictive Easements over the following Properties located in the ITA are hereby declared to be in excess of the needs of the City of Virginia Beach: 3592 Indian River Road, 51.84 acres, 1483-38-6300; 2561 Salem Road 18.45 acres, 1484-22-6306; Salem Road 12.428 Acres, 1484-21-5994; Salem Road Parcel B, 17.38 Acres, 1484-41-0190; Salem Road Parcel A 1 .11 Acres 1484-30-8994; Salem Road 9.56 Acres 1484-31-9964; Salem Road 16.526 Acres 1483-59-8490; Salem Road 1.531 Acres 1484-50-8055; Salem Road 23.882 Acres 1484-60-3726; Landstown Road 31.85 Acres 1484-61-2506; Salem Road 19.733 Acres 1484-21-6047; 2433 Salem Road 2.072 Acres 1484-23-6232; and 2437 Salem Road 6.137 Acres 1484-23-8037. 2. That the City Manager is hereby authorized to execute any documents necessary to convey the Restrictive Easements over the Properties to the United States Navy, in substantial conformity with the terms and provisions of the Encroachment Partnering Agreement dated September 27, 2007, as amended, and such other terms, conditions or modifications as are deemed necessary and sufficient by the City Manager and in a form deemed satisfactory by the City Attorney. 3. That the revenue from the sale of each of the Restrictive Easements (up to the total amount of $3,843,302) shall be received by the City and appropriated as follows: a) the proceeds from the sale of easements over any property acquired with funds from the Commonwealth of Virginia shall be appropriated 50% to the Oceana and ITA Conformity and Acquisition Project (CIP #9-060) and 50% to Various Site Acquisitions (CIP #3-368); and the City Manager shall thereafter refund the Commonwealth's portion of such revenue in the total amount of $1 ,458,251.25 from CIP #9-060); and (b) the proceeds from the sale of easements over any property acquired solely with City funds shall be appropriated to Various Site Acquisitions (CIP #3-368). This ordinance shall be effective from the date of its adoption. "I 95 Adopted by the Council of the City of Virginia Beach, Virginia, on the 96 26th day of Mav ,2009. R-1 5/19/2009 CA11015 \ \vbgov .com\dfs 1 \applications\citylawprod\cycom 32\wpdocs\dOO 1 \p004\00011299.doc APPROVED AS TO CONTENT ~f7fk C, quws~ blic Works APPROVED AS TO CONTENT /;'. )' .., /.....;' )I ; , I #: ,'/w' ,.,,'..t. Jr I ,/ Xj...-~:;~. ,,(:"'J'<~-r :JJ "v\, {Managemen Services- .. APPROVED AS TO LEGAL SUFFICIENCY ~ .4U City Attorney's ice III .. , EXHIBIT A To Grant of Easement Table from CZO S 1804 TABLE 1 - AIR INST ALLA TIONS COMPATIBLE USE ZONES LAND USE COMP A TIBILITY IN NOISE ZONES Land Use Land Use Compatibility Land Use Name 70-75 dB >75 dB DNL DNL Residential and Related Single-family dwellings N N Semidetached dwellings N N Attached dwellings/townhouses N N Duplexes N N Multiple-family dwellings N N Dormitories and other group quarters N N Mobile home parks N N Hotels and motels N N Other residential uses N N Manufacturing Food & kindred products; manufacturing Y Y Textile mill products; manufacturing Y Y Apparel and other finished products; products made from fabrics, Y Y leather and similar materials; manufacturing Lumber and wood products (except furniture); manufacturing Y Y Furniture and fixtures; manufacturing Y Y Paper and allied products; manufacturing Y Y Printing, publishing, and allied industries Y Y Chemicals and allied products; manufacturing Y Y Petroleum refining and related industries Y Y Rubber and misc. plastic products; manufacturing Y Y Stone, clay and glass products; manufacturing Y Y II Primary metal products; manufacturing y y Fabricated metal products; manufacturing y y Professional scientific, and controlling instruments; photographic y y and optical goods; watches and clocks Miscellaneous manufacturing y y Transportation, communication and utilities Railroad, rapid rail transit, and street railway transportation Y y Motor vehicle transportation Y y Aircraft transportation Y y Marine craft transportation Y y Highway and street right-of-way y y Automobile parking y y Communication y y Utilities y y Other transportation, communication and utilities y y Trade Wholesale trade y y Retail trade - building materials, hardware and farm equipment y y Retail trade - general merchandise y y Retail trade - food y y Retail trade - automotive, marine craft, aircraft and accessories y y Retail trade - apparel and accessories y y Services Retail trade - furniture, home, furnishings and equipment y y Retail trade - eating and drinking establishments y y Other retail trade y y Finance, insurance and real estate services y y Personal services y y "I .' f Cemeteries y y Business services Y Y Warehousing and storage Y Y Repair services y y Professional services Y y Hospitals, other medical fac. y N Nursing homes N N Contract construction services Y Y Government services y y Educational services y N Miscellaneous Y y Cultural, entertainment and recreational Cultural activities (& churches) y N Nature exhibits N N Public assembly halls N N Auditoriums, concert halls y N Outdoor music shells, amphitheaters N N Outdoor sports arenas, spectator sports Y N Other outdoor recreational facilities y y Indoor recreational facilities Y y Campgrounds y N Parks y N Other cultural, entertainment and recreation y N Resource Production and Extraction Agriculture (except live stock) y y Livestock farming y N Animal breeding y N Agriculture related activities y y III , , " I Forestry activities Y Y Fishing activities y y Mining activities y y Other resource production or extraction Y y II I SUMMARY OF TERMS OF ENCROACHMENT PARTNERING AGREEMENT: Parties: The City of Virginia Beach and The United States of America, acting through the Department of the Navy Term of Aareement: The term of the agreement is 5 years, unless sooner terminated by either party, upon 30 days' notice to the other party. The agreement may be renewed or extended as the parties agree. Other Terms 1. If the City purchases property from willing sellers in the ITA, then the Navy will purchase from the City a restrictive easement over that property limiting its use to those uses marked with a "Y" in the Table set forth in City Zoning Ordinance Section 1804 as enacted on the date of the Multi-Year Agreement (copy attached hereto as Exhibit A"): a. If the property is in 65-70 and 70-75 dB DNL Noise Zones, then the property would be limited to the allowed uses in 70-75 dB DNL Noise Zone, as stated in the Table; b. If the property is in >75 dB DNL, then the property would be limited to the allowed uses in >75 dB DNL Noise Zone; 2. The Navy will pay 100% of the appraised value of the restrictive easement or 50% of the City's fee simple purchase price, whichever is less. After the appraisals are completed, the City can decide on a case- by-case basis whether to sell an easement to the Navy. 3. The Navy will fund this arrangement with $3 million 1, plus the Marshview property (the Navy will convey Marshview, in fee, to the City in exchange for the City placing restrictive easements over its ITA properties ). 4. The Navy and the City will share the costs of the appraisals. 5. The City shall provide surveys necessary to delete all standard exceptions for title insurance as to surveys. I Increased to $4,050,000 by ORD-3053C adopted September 23,2008 and by the Amended Encroachment Partnering Agreement entered into on December 23,2008. EI-11283 Prepared by: United States of America Commanding Officer (Altn: Code OPHRRES) Naval Facilities Engineering Command Mid Atl'lntic 9742 Mmyland Avenue, Norfolk, VA 23511-3095 All correspondence pertaining to this Easement should reference No. N40085-09-RP-OOI64 EXEMPTED FROM RECORDATION TAXES UNDER SECTIONS 58.1-811 (A)(3) AND 58.1-81 I (C)(4) EXEMPT PURSUANT TO ~7.1-22(c) GRANT OF EASEMENT THIS EASEMENT, made this 3rd day of June, 2009, by and between the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, hereinafter called the GRANTOR, and the UNITED STATES OF AMERICA, hereinafter called the GOVERNMENT ("the GRANTEE"); WITNESSETH: WHEREAS, the GRANTOR is the sole owner in fee simple of certain property ("Property"), hereinafter described as a tract of land containing 27.95 acres, more or less, located in the City of Virginia Beach, State of Virginia and situated near Naval Air Station, Oceana, Virginia Beach, Virginia and Naval Auxiliary Landing Field, Fentress, Chesapeake, Virginia, hereinafter called the INSTALLATIONS; WHEREAS, it is in the public interest to limit development or use of the Property in the vicinity of the INST ALLA TrONS that would be incompatible with its mission and/or might interfere, whether directly or indirectly, with current or anticipated military training, testing or operations on such INSTALLATIONS; and WHEREAS, the GRANTOR and GOVERNMENT have entered into a Multi-Year Agreement pursuant to 10 U.S.C. 2684a to acquire property interests that would be incompatible with the mission of the INSTALLATIONS and otherwise meet the mutual objectives of the GRANTOR and GOVERNMENT. NOW THEREFORE, in consideration of the sum of Six Hundred Fifty Thousand and Noll 00 Dollars ($650,000.00), the receipt and sufficiency of which are hereby acknowledged, the GRANTOR does hereby grant and convey to the GOVERNMENT, a perpetual easement GPIN: 1484-31-9964,1484-41-0190 and 1484-30-8994 1 EI-11283 appurtenant to restrict the use and development of said Property that would encumber, impede, limit or otherwise be incompatible, as defined herein, with the mission ofthe INST ALLA TIONS, and to provide for ingress and egress for the purpose of monitoring compliance with the easement, on, over and across said Property more particularly described as: Easement on, over and across: PARCEL NO.1: ALL THAT certain piece or parcel of land sihlate, lying and being in the City of Virginia Beach, Virginia, designated and described as "PARCEL B AREA = 757,062 SF or 17.380 AC GPIN: 1484-41- 0190", as shown on that certain plat entitled "RESUBDIVISION OF 'SURVEY OF PROPERTY OF GIDEON BROCKETT ESTATE' (INSTRUMENT NO. 200210033043211) AND 'PROPERTY OF l.C. BROCKETT LOCATED ON SALEM RD. IN PRINCESS ANNE CO., VA.' (MB. 75, PG. 49) VIRGINIA BEACH, VIRGINIA", made by MSA, P.C. dated December 20, 2005, said plat being recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia as Instrument No. 20060717001075800. PARCEL NO.2: ALL THAT certain piece or parcel of land comprising 1.01 acres, more or less, situate, lying and being in the City of Virginia Beach, Virginia designated and described as "N/F JOHNNIE C. BROCKETT PARCEL A (DB. 2457, PG. 149, PLAT) GPIN: 1484- 30-8994", as shown on that certain plat entitled, "RESUBDIVISION OF 'SURVEY OF GIDEON BROCKETT ESTATE' (INSTRUMENT NO. 200210033043211) AND 'PROPERTY OF lC. BROCKETT LOCATED ON SALEM RD. IN PRINCESS ANNE CO., VA.' (MB. 75, PG. 49) VIRGINIA BEACH, VIRGINIA", made by MSA, P.C., dated December 20, 2005 and recorded in the aforesaid Clerk's Office as Instrument Number by 20060717001075800. PARCEL NO.3: ALL OF THAT that certain piece or parcel of land, situate, lying and being in the City of Virginia Beach, Virginia, designated and described as "SALEM ROAD ASSOCIATES LLC INSTR. #200401220012435 (DEED) (PARCEL THREE) M.B. 17 PG. 31 GPIN 1484-31-9964 AREA = 416,291 SQ. FT. = 9.55672 ACRES" as shown on that certain plat entitled "PLAT SHOWING PROPERTY TO BE ACQUIRED 2 I EI-11283 FROM SALEM ROAD ASSOCIATES, LLC BY CITY OF VIRGINIA BEACH VIRGINIA B EACH, VIRGINIA", dated August 14, 2008, prepared by Department of Public Works/Engineering Division/Survey Bureau City of Virginia Beach, Virginia, said plat being recorded in the aforesaid Clerk's Office as Instrument No. 20080902001035790. IT BEING an easement over the same property acquired by the GRANTOR by deed from Salem Road Associates, L.L.C., a Virginia limited liability company recorded in the Clerk Office of the Circuit Court of the City of Virginia Beach, as Instrument Number 20080909001067470. The Easement and rights for restrictions, ingress and egress are described as follows: 1. Restricted Uses and Development Ri2hts. Any activity or use of the Property inconsistent with the purpose of this Easement is prohibited. Without limiting the generality of the foregoing, and except as specifically permitted, the following activities and uses are expressly prohibited: a. All activities EXCEPT those listed as compatible (Y) in the City Zoning Ordinance (Appendix A to the Code of the City of Virginia Beach) (CZO), as enacted as of the date ofthe date ofthe Multi-Year Agreement, by and between the City and the Government, as executed on September 25, 2007, a copy of which is attached hereto as Exhibit A and incorporated herein by this reference, as follows: 1. For Property within the 65-70 db DNL and 70-75 dB DNL Noise Zone, those uses listed as compatible with the 70-75 dB DNL Noise Zone in Table 1 within CZO ~ 1804, as enacted as of the date of the date of the Multi-Year Agreement, by and between the City and the Government, as executed on September 25, 2007. 11. For Property within the >75 dB DNL Noise Zone, those uses listed as compatible with the >75 dB DNL Noise Zone in Table 1 within CZO ~ 1804, as enacted as of the date ofthe date of the Multi-year agreement, by and between the City and the Government, as executed on September 25,2007. b. Human Habitation. The Property may not be used for human habitation, including but not limited to nursing homes and temporary accommodations such as cabins, trailers, R V s, tents, etc. 3 EI-11283 c. Height Restrictions. No structure which on. the basis of its height would constitute an obstruction to air navigation pursuant to Part 77 of the Federal Aviation Administration Regulations, 14 CFR. d. Lighting. All lighting equipment, including but not limited to floodlights and searchlights, and all protective lighting, such as streetlights, shall have positive optical control that shines downward so that no direct light is emitted above the horizontal plane. e. Other Operational & Training Hazards. No operations of any type are permitted that produce smoke, glare or other visual hazards, or encourage concentrations of birds, such as bird feeding stations, ponds, (except as otherwise allowed herein) and mature crops left un-harvested, that may be dangerous for aircraft operating from the INST ALLA TIONS. Controlled bums for agricultural purposes, habitat improvement and mitigation of fire hazards must be agreed to in writing by all parties to this Easement prior to commencing said activities. f. Construction. New construction of any structure or edifice, and any other additions to, or alterations of the Property are prohibited except for those improvements or alterations deemed to be reasonably necessary to the allowed uses of the Property defined within this paragraph1, and to address any storm water management issues on or affecting the Property authorized pursuant to paragraph 2(c). GRANTOR shall provide GOVERNMENT written notice of GRANTOR's intention to undertake any such construction, together with information on its size, function, capacity and location, not less than ninety days (90) prior to the commencement thereto in accordance with paragraph 3 below. All authorized uses shall be consistent with applicable environmental laws. 2. Reserved Ri2hts. GRANTOR reserves to itself, its successors and assigns, all rights accruing from its ownership of the Property that are not expressly prohibited herein and are not inconsistent with the purposes of this Easement, including but not limited to: a. Controlling predatory and problem animals by the use of selective control techniques. b. Managing and harvesting of all forests on the Property consistent with Virginia State Forestry Department Guidelines, as they may be amended from time to time. c. Establishing retention or detention ponds or impoundments to ameliorate storm water runoff on or affecting the Property. GRANTOR, in consultation with and with prior approval of GOVERNMENT, will be permitted to create such storm water impoundments on the Property, provided they are not enhanced for the attraction of waterfow1. However, should the impoundments or other improvements made attract such a concentration of birds to the extent that they cause a training or operational 4 EI-11283 hazard, the GRANTOR, upon the request of the GOVERNMENT, shall remove the improvements to the extent required to ameliorate the training or operational hazard created. Such removal work shall be at the sole cost of the GRANTOR. 3. Notification Provisions. a. Notice ofIntent to Undertake New Uses and Construction. Whenever GRANTOR plans to undertake a new use or perform new construction on the Property, GRANTOR will notify the GOVERNMENT in writing by certified mail not less than ninety days (90) prior to the date that GRANTOR intends to undertake the activity in question. The notice shall describe the nature, scope, design, location, timetable, and any other material aspect ofthe proposed activity in sufficient detail to permit the GOVERNMENT to make an informed judgment as to its consistency with the purpose of this Easement. Failure of GRANTOR to give such notice shall be deemed a breach of the terms of this Agreement. Furthermore, should GRANTOR undertake to make any improvements to control storrnwater runoff pursuant to paragraph 2(c) above, the provisions ofthis paragraph shall apply. b. GOVERNMENT 's Approval. Within ninety (90) days of receipt of the request, the GOVERNMENT will grant or withhold its approval in writing. The GOVERNMENT IS approval may be withheld only upon a reasonable determination by the GOVERNMENT that the use or construction proposed would be inconsistent with the purpose ofthis Easement and the restrictions on the use of the Property included herein. 4. Monitoring. Enforcement and Remedies. a. The GOVERNMENT may enter upon the Property on an annual basis in order to monitor GRANTOR's compliance with the terms ofthis Easement or at any time upon an event of noncompliance with the terms ofthis Easement to enforce the term of this Easement; provided that GOVERNMENT will provide at least ten (10) days notice of such entry to GRANTOR, except when there is a threat of imminent harm of personal injury or property damage. GOVERNMENT shall not unreasonably interfere with GRANTOR's use and quiet enjoyment of the Property. b. In the event of breach by GRANTOR of any terms, conditions, or obligations created by this Easement, the GRANTOR shall be afforded ninety (90) days from the receipt of GOVERNMENT's notice of non-compliance to cure the subject breach, except where irreparable harm may result from any delay in curing a breach. The GOVERNMENT may grant a reasonable extension of time to complete the cure if it is determined by the GOVERNMENT to be necessary. In the event that the non-compliance is not cured within the ninety (90) day time frame, or extension of time if granted by the GOVERNMENT, the GOVERNMENT may: 5 , I EI-11283 i. take necessary actions to correct the non-compliance and upon request by GOVERNMENT, GRANTOR shall reimburse GRANTEE for its reasonable actual costs incurred to correct the non-compliance; and/or ii. institute mediation or other alternative dispute resolution strategy that is agreed to by the parties; or iii. institute suits to enjoin any breach or enforce any term by injunction. The GOVERNMENT's remedies shall be cumulative and shall be in addition to any other rights and remedies available to the GOVERNMENT at law or equity. Enforcement of the terms of this Easement shall be at the discretion of the GOVERNMENT. No failure on the part of the GOVERNMENT to enforce any term hereof shall discharge or invalidate such term or any other term hereof or affect the right of the GOVERNMENT to enforce the same in the event of a subsequent breach or default. 5. Costs and Liabilities. GRANTOR retains all responsibilities and shall bear all costs and liabilities of any kind related to the ownership and maintenance of the Property. 6. Subsequent Transfers. GRANTOR agrees to incorporate the terms of this Easement in any deed or other legal instrument by which it divests itself of any interest in the Property, including a leasehold interest. GRANTOR further agrees to give written notice to the GOVERNMENT of the conveyance at least 30 days prior to the date of conveyance. 7. Notices. Notice shall be considered as provided upon delivery to the respective owners of record for interests in property, unless otherwise agreed to in writing. Any notice, approval or communication that the GRANTOR is required to give to the GOVERNMENT in writing may be served personally or mailed to: To GRANTOR: City Manager's Office City of Virginia Beach 2401 Courthouse Drive, Building 1 Virginia Beach, VA 23456 With copy to: City Attorney's Office City of Virginia Beach 2401 Courthouse Drive, Building 1 Virginia Beach, VA 23456 6 EI-11283 To GOVERNMENT: Commanding Officer Naval Air Station, Oceana 1750 Tomcat Boulevard Virginia Beach, Virginia 23460 With copy to: Commanding Officer (ATTN: OPHRRES) Naval Facilities Engineering Command, Mid-Atlantic 9742 Maryland Avenue Norfolk, Virginia 23511-3095 The GRANTOR is responsible for ensuring that the GOVERNMENT's address is current at the time of any notification. The GOVERNMENT is responsible for ensuring that the GRANTOR's address is current at the time of any notification. The GRANTOR covenants with the GOVERNMENT that it is seized of said Property in fee simple; that GRANTOR has the right to convey, and voluntarily conveys for the agreed upon price, this Easement with the additional authority for the GOVERNMENT to control and restrict the use and development of GRANTOR's Property as provided in this Easement; that GRANTOR has done nothing to impair such title as GRANTOR received; and the GRANTOR will warrant and defend the title against the lawful claims of all persons claiming by, under or through GRANTOR. IN WITNESS WHEREOF, the GRANTOR has caused this GRANT OF EASEMENT to be executed as of the day and year first written. UNITED STATES OF AMERICA DEP ARTMENT OF THE NAVY BY:~~ Real Estate Contracting Officer By direction, Naval Facilities Engineering Command, Mid-Atlantic 9742 Maryland Avenue Norfolk, Virginia 23511-2699 7 State of Virginia ) ) City of vrle6IJJI)) ,enu_l-I ) EI-11283 I, (JAlXJ..Uyf fitoK.L , a Notary Public for the State at Large, hereby certify that Matthew D. Kurtz, whose name as such is signed to the foregoing Easement has this day acknowledged the same before me in the City and State aforesaid. Given under my hand this ;3, 4 day of VtLlJtP , 200~. fJakt4J )nOW- yj(iJtl~ Notary Public My Commission expires: Registration number: (, --:1IJ ~01 a 1~9y.i 8 EI-11283 CITY OF VIRGINIA BEACH APPROVED AS TO CONTENT ~ I ~ i' B. ~ L. ~1)fJt Attes : BIf-='~.11YmG APPROVED AS TO LEGAL SUFFICIENCY ;[J(JV ;t ( / OA~, City Attorney's Office --~ State of Virginia ) ) ) City of JtJ;te6-:OJ.m IJeA-GH I, (Jf-}TfLzcm NDDU mK;r-NS , a Notary Public for the State at Large, hereby certify that v{tMGS k. sPtJ/te . whose name as such is signed to the foregoing Easement has this day acknowledged the same before me in the City and State aforesaid. ""....t'1i.'ft'J) under my hand this 3-,~ day of VlL/Je ,2001. ( ......' ~OOR~ 'I, ~ . " \~ .......~. li4 "I f) ~...~G""NOTARY"'/~'~ \.' ~ ~lJJL Yiu~u~ : ~... PUBLIC ".~ ~ '. C//' = Q: REG 11 212944 ~ <fJ 7: Notary PublIc : ~ MY COMMISSION': ::; . o. ~I~ .::!;" -- 0 . .0 . -. . ~ ~"'. I o.~ ~~~~~n expIres: '" O"h1}6gH;t~~t~.;i\umber: '1111 tAL n-\ 0 "\,,, "'''''HI;I ur.3{} ~(J'1 ~d1. 94 'f 9 State of Virginia ) ) City of iJ':Cr<c..;'m.t: I:J IEl'ilCfl ) I, fhTP...J (l-:;'74./"ItJt:.VlE I~ XnJ ~ , aN otary Public for the State at Large, hereby certify that ~uTl-I l-IoD6-G:5 PI2l15i3l~..J whose name as such is signed to the foregoing Easement has this day acknowledged the same before me in the City and State aforesaid. 3Jtdday of~, 200~. Yri-k~ lJ)POhl--. fJ.uJl~ Notary Public Given under my hand this 0.."1111" ", 1'1 .....' MOORj,~' :J:J~ .... (}r. ,...". ",1....)..; .'~ ,:-" ~ ,""NOTAF<y..~t;/ <:, .. ~.. pl. I"'" " i-:. ~ .. :'\. vOL,\.- . ~/ ... .. Q . '''__ 'U : : REG If 212944 ~ UJ ~: : () : MY CcM~3&~inisSi.on expires: {p -SO -OcJ ~ ~ \. oE6,W~tr~i~jlUmber: flj /l/i4-'-I -:. ~ .. ~oJ2Uiig., r.< ,.' 1# v" If' ^':-l-t. ..., ~A~If.llll""" ,\\,,-,'~. ""."t. A Or.. ," '"'' "1 L TH ' ,\b~ "'"11"" 10 III EI-11283 EXHIBIT A To Grant of E .asement Table from CZO S 1804 TABLE 1 - AIR INST ALLA TIONS COMP A rIBLE USE ZONES LAND USE COMPATIBILITY IN NOISE ZONES Land Use Land Use Compatibility Land Use Name 70-75 dB >75 dB DNL DNL Residential and Related Single-family dwellings N N Semidetached dwellings N N Attached dwellings/townhouses N N Duplexes N N Multiple-family dwellings N N Dormitories and other group quarters N N Mobile home parks N N Hotels and motels N N Other residential uses N N Manufacturing Food & kindred products; manufacturing Y Y Textile mill products; manufacturing Y Y Apparel and other finished products; products made from fabrics, Y y leather and similar materials; manufacturing Lumber and wood products (except furniture); manufacturing Y y Furniture and fixtures; manufacturing y y Paper and allied products; manufacturing Y y Printing, publishing, and allied industries Y Y Chemicals and allied products; manufacturing Y Y Petroleum refining and related industries Y Y Rubber and misc. plastic products; manufacturing Y y Stone, clay and glass products; manufacturing Y Y Primary metal products; manufacturing y y Fabricated metal products; manufacturing y y Professional scientific, and controlling instruments; photographic y y and optical goods; watches and clocks Miscellaneous manufacturing y y Transportation, communication and utilities Railroad, rapid rail transit, and street railway transportation Y Y Motor vehicle transportation y Y Aircraft transportation y Y Marine craft transportation y Y Highway and street right-of-way y y Automobile parking y y Communication y y Utilities y y Other transportation, communication and utilities y Y Trade Wholesale trade y y Retail trade - building materials, hardware and farm equipment y y Retail trade - general merchandise y y Retail trade - food y Y Retail trade - automotive, marine craft, aircraft and accessories Y y Retail trade - apparel and accessories y y Services Retail trade - furniture, home, furnishings and equipment y y Retail trade - eating and drinking establishments y y Other retail trade y y Finance, insurance and real estate services y y Personal services y y Cemeteries y y Business services Y Y Warehousing and storage Y y Repair services Y Y Professional services y y Hospitals, other medical fac. y N Nursing homes N N Contract construction services y y Government services Y Y Educational services Y N Miscellaneous Y y Cultural, entertainment and recreational Cultural activities (& churches) y N Nature exhibits N N Public assembly halls N N Auditoriums, concert halls y N Outdoor music shells, amphitheaters N N Outdoor sports arenas, spectator sports Y N Other outdoor recreational facilities Y Y Indoor recreational facilities Y Y Campgrounds Y N Parks Y N Other cultural, entertainment and recreation Y N Resource Production and Extraction Agriculture (except live stock) y y Livestock farming Y N Animal breeding y N Agriculture related activities Y y Forestry activities y y Fishing activities y Y Mining activities y y Other resource production or extraction Y Y EI-EI-11401 Prepared by: United States of America Commanding Officer (Artn: Code OPHRRES) Naval Facilities Engineering Command Mid Atlantic 9742 Maryland A venue, Norfolk, VA 23511-3095 All correspondence pertaining to this Easement should reference No. N40085-09-0 1166 EXEMPTED FROM RECORDATION TAXES UNDER SECTIONS 58.1 -811 (A)(3) AND 58.1-81 I (C)(4) EXEMPT PURSUANT TO ~7.1-22(c) GRANT OF EASEMENT THIS EASEMENT, made this 3rd day of June, 2009, by and between the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, hereinafter called the GRANTOR, and the UNITED STATES OF AMERICA, hereinafter called the GOVERNMENT ("the GRANTEE"); WITNESSETH: WHEREAS, the GRANTOR is the sole owner in fee simple of certain property ("Property"), hereinafter described as a tract ofland containing 41.939 acres, more or less, located in the City of Virginia Beach, State of Virginia and situated near Naval Air Station, Oceana, Virginia Beach, Virginia and Naval Auxiliary Landing Field, Fentress, Chesapeake, Virginia, hereinafter called the INSTALLATIONS; WHEREAS, it is in the public interest to limit development or use of the Property in the vicinity of the INST ALLA TIONS that would be incompatible with its mission and/or might interfere, whether directly or indirectly, with current or anticipated military training, testing or operations on such INSTALLATIONS; and WHEREAS, the GRANTOR and GOVERNMENT have entered into a Multi-Year Agreement pursuant to 10 U.S.C. 2684a to acquire property interests that would be incompatible with the mission of the INST ALLA TIONS and otherwise meet the mutual objectives of the GRANTOR and GOVERNMENT. NOW THEREFORE, in consideration of the sum of Six Hundred Twenty-Nine Thousand Ninety-Eight and 50/1 00 Dollars ($629,098.50), the receipt and sufficiency of which are hereby acknowledged, the GRANTOR does hereby grant and convey to the GOVERNMENT, a GPIN: 1483-59-8490; 1484-50-8055; and 1484-60-3726 EI-EI-11401 perpetual easement appurtenant to restrict the use and development of said Property that would encumber, impede, limit or otherwise be incompatible, as defined herein, with the mission of the INST ALLA TIONS, and to provide for ingress and egress for the purpose of monitoring compliance with the easement, on, over and across said Property more particularly described as: Easement on, over and across: GPIN: 1483-59-8490: ALL OF THAT certain lot, piece or parcel of land, situate, lying and being in the City of Virginia Beach, Virginia, more particularly described as "GPIN No. 1483-59-8490" and further described as "GPIN 1483-59-8490 719,890 SQ. FT. 16.526 ACRES" on that certain plat entitled, "PLAT SHOWING PROPERTY TO BE ACQUIRED FROM MILL DAM LANDING ASSOCIATES, L.L.C. BY THE CITY OF VIRGINIA BEACH FOR CIP 9-060.002 VIRGINIA BEACH, VIRGINIA," Scale: 1" = 1 00', Dated July 15, 2008, prepared by Rouse-Sirine Associates, Ltd., which plat is recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, as Instrument Number 20080925001128450, to which reference is made for a more particular description. GPIN: 1484-50-8055 ALL OF THAT certain lot, piece or parcel of land, situate, lying and being in the City of Virginia Beach, Virginia, more particularly described as "GPIN No. 1484-50-8055" and further described as "GPIN 1484-50-8055 66,676 SQ. FT. 1.531 ACRES" on that certain plat entitled, "PLAT SHOWING PROPERTY TO BE ACQUIRED FROM MILL DAM LANDING ASSOCIATES, L.L.C. BY THE CITY OF VIRGINIA BEACH FOR CIP 9- 060.002 VIRGINIA BEACH, VIRGINIA," Scale: 1" = 1 00', Dated July 15, 2008, prepared by Rouse-Sirine Associates, Ltd., which plat is recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, as Instrument Number 20080925001128450, to which reference is made for a more particular description. GPIN: 1484-60-3726 ALL OF THAT certain lot, piece or parcel of land, situate, lying and being in the City of Virginia Beach, Virginia, more 2 EI-EI-11401 particularly described as "GPIN No. 1484-60-3726" and further described as "GPIN 1484-60-3726 1,040,290 SQ. FT. 23.882 ACRES" on that certain plat entitled, "PLAT SHOWING PROPERTY TO BE ACQUIRED FROM MILL DAM LANDING ASSOCIATES, L.L.C. BY THE CITY OF VIRGINIA BEACH FOR CIP 9-060.002 VIRGINIA BEACH, VIRGINIA," Scale: 1" = 1 00', Dated July 15, 2008, prepared by Rouse-Sirine Associates, Ltd., which plat is recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beacb, Virginia, as Instrument Number 20080925001128450, to which reference is made for a more particular description. IT BEING an easement over the same property acquired by the GRANTOR by deed from Mill Dam Landing Associates, L.L.C., a Virginia limited liability company, recorded in the Clerk Office of the Circuit Court of the City of Virginia Beach, as Instrument Number 20080926001133820. The Easement and rights for restrictions, ingress and egress are described as follows: 1. Restricted Uses and Development Rights. Any activity or use ofthe Property inconsistent with the purpose of this Easement is prohibited. Without limiting the generality ofthe foregoing, and except as specifically permitted, the following activities and uses are expressly prohibited: a. All activities EXCEPT those listed as compatible (Y) in the City Zoning Ordinance (Appendix A to the Code ofthe City of Virginia Beach) (CZO), as enacted as of the date of the date of the Multi-Year Agreement, by and between the City and the Government, as executed on September 25, 2007, a copy of which is attached hereto as Exhibit A and incorporated herein by this reference, as follows: 1. For Property within the 65-70 db DNL and 70-75 dB DNL Noise Zone, those uses listed as compatible with the 70-75 dB DNL Noise Zone in Table 1 within CZO g1804, as enacted as of the date of the date ofthe Multi-Year Agreement, by and between the City and the Government, as executed on September 25, 2007. 11. For Property within the >75 dB DNL Noise Zone, those uses listed as compatible with the >75 dB DNL Noise Zone in Table 1 within CZO S1804, as enacted as of the date of the date of the Multi-year agreement, by and between the City and the Government, as executed on September 25,2007. 3 EI-EI-11401 b. Human Habitation. The Propeliy may not be used for human habitation, including but not limited to nursing homes and temporary accommodations such as cabins, trailers, R V s, tents, etc. c. Height Restrictions. No structure which on the basis of its height would constitute an obstruction to air navigation pursuant to Part 77 of the Federal Aviation Administration Regulations, 14 CFR. d. Lighting. All lighting equipment, including but not limited to floodlights and searchlights, and all protective lighting, such as streetlights, shall have positive optical control that shines downward so that no direct light is emitted above the horizontal plane. e. Other Operational & Training Hazards. No operations of any type are permitted that produce smoke, glare or other visual hazards, or encourage concentrations of birds, such as bird feeding stations, ponds, (except as otherwise allowed herein) and mature crops left un-harvested, that may be dangerous for aircraft operating from the INSTALLATIONS. Controlled burns for agricultural purposes, habitat improvement and mitigation of fire hazards must be agreed to in writing by all parties to this Easement prior to commencing said activities. f. Construction. New construction of any structure or edifice, and any other additions to, or alterations of the Property are prohibited except for those improvements or alterations deemed to be reasonably necessary to the allowed uses ofthe Property defined within this paragraphl, and to address any storm water management issues on or affecting the Property authorized pursuant to paragraph 2(c). GRANTOR shall provide GOVERNMENT written notice of GRANTOR's intention to undertake any such construction, together with information on its size, function, capacity and location, not less than ninety days (90) prior to the commencement thereto in accordance with paragraph 3 below. All authorized uses shall be consistent with applicable environmental laws. 2. Reserved Rie.hts. GRANTOR reserves to itself, its successors and assigns, all rights accruing from its ownership of the Property that are not expressly prohibited herein and are not inconsistent with the purposes of this Easement, including but not limited to: a. Controlling predatory and problem animals by the use of selective control techniques. b. Managing and harvesting of all forests on the Property consistent with Virginia State Forestry Department Guidelines, as they may be amended from time to time. c. Establishing retention or detention ponds or impoundments to ameliorate storm water runoff on or affecting the Property. GRANTOR, in consultation with and with prior 4 EI-EI-11401 approval of GOVERNMENT, will be permitted to create such storm water impoundments on the Property, provided they are not enhanced for the attraction of waterfowl. However, should the impoundments or other improvements made attract such a concentration of birds to the extent that they cause a training or operational hazard, the GRANTOR, upon the request ofthe GOVERNMENT, shall remove the improvements to the extent required to ameliorate the training or operational hazard created. Such removal work shall be at the sole cost of the GRANTOR. 3. Notification Provisions. a. Notice ofIntent to Undertake New Uses and Construction. Whenever GRANTOR plans to undertake a new use or perform new construction on the Property, GRANTOR will notify the GOVERNMENT in writing by certified mail not less than ninety days (90) prior to the date that GRANTOR intends to undertake the activity in question. The notice shall describe the nature, scope, design, location, timetable, and any other material aspect of the proposed activity in sufficient detail to permit the GOVERNMENT to make an informed judgment as to its consistency with the purpose of this Easement. Failure of GRANTOR to give such notice shall be deemed a breach of the terms of this Agreement. Furthermore, should GRANTOR undertake to make any improvements to control stormwater runoff pursuant to paragraph 2(c) above, the provisions of this paragraph shall apply. b. GOVERNMENT 's Approval. Within ninety (90) days of receipt of the request, the GOVERNMENT will grant or withhold its approval in writing. The GOVERNMENT 's approval may be withheld only upon a reasonable determination by the GOVERNMENT that the use or construction proposed would be inconsistent with the purpose of this Easement and the restrictions on the use of the Property included herein. 4. Monitorin1!. Enforcement and Remedies. a. The GOVERNMENT may enter upon the Property on an annual basis in order to monitor GRANTOR's compliance with the terms of this Easement or at any time upon an event of noncompliance with the terms of this Easement to enforce the term of this Easement; provided that GOVERNMENT will provide at least ten (10) days notice of such entry to GRANTOR, except when there is a threat of imminent harm of personal injury or property damage. GOVERNMENT shall not unreasonably interfere with GRANTOR's use and quiet enjoyment of the Property. b. In the event of breach by GRANTOR of any terms, conditions, or obligations created by this Easement, the GRANTOR shall be afforded ninety (90) days from the receipt of GOVERNMENT's notice of non-compliance to cure the subject breach, except where irreparable harm may result from any delay in curing a breach. The GOVERNMENT 5 EI-EI-11401 may grant a reasonable extension of time to complete the cure if it is determined by the GOVERNMENT to be necessary. In the event that the non-compliance is not cured within the ninety (90) day time frame, or extension oftirne if granted by the GOVERNMENT, the GOVERNMENT may: i. take necessary actions to correct the non-compliance and upon request by GOVERNMENT, GRANTOR shall reimburse GRANTEE for its reasonable actual costs incurred to correct the non-compliance; and/or ii. institute mediation or other alternative dispute resolution strategy that is agreed to by the parties; or iii. institute suits to enjoin any breach or enforce any term by injunction. The GOVERNMENT's remedies shall be cumulative and shall be in addition to any other rights and remedies available to the GOVERNMENT at law or equity. Enforcement of the terms of this Easement shall be at the discretion of the GOVERNMENT. No failure on the part of the GOVERNMENT to enforce any term hereof shall discharge or invalidate such term or any other term hereof or affect the right of the GOVERNMENT to enforce the same in the event of a subsequent breach or default. 5. Costs and Liabilities. GRANTOR retains all responsibilities and shall bear all costs and liabilities of any kind related to the ownership and maintenance of the Property. 6. SubseQuent Transfers. GRANTOR agrees to incorporate the terms of this Easement in any deed or other legal instrument by which it divests itself of any interest in the Property, including a leasehold interest. GRANTOR further agrees to give written notice to the GOVERNMENT of the conveyance at least 30 days prior to the date of conveyance. 7. Notices. Notice shall be considered as provided upon delivery to the respective owners of record for interests in property, unless otherwise agreed to in writing. Any notice, approval or communication that the GRANTOR is required to give to the GOVERNMENT in writing may be served personally or mailed to: To GRANTOR: City Manager's Office City of Virginia Beach 2401 Courthouse Drive, Building 1 Virginia Beach, V A 23456 6 EI-EI-11401 With copy to: City Attorney's Office City of Virginia Beach 2401 Courthouse Drive, Building 1 Virginia Beach, VA 23456 To GOVERNMENT: Commanding Officer Naval Air Station, Oceana 1750 Tomcat Boulevard Virginia Beach, Virginia 23460 With copy to: Commanding Officer (ATTN: OPHRRES) Naval Facilities Engineering Command, Mid-Atlantic 9742 Maryland Avenue Norfolk, Virginia 23511-3095 The GRANTOR is responsible for ensuring that the GOVERNMENT's address is current at the time of any notification. The GOVERNMENT is responsible for ensuring that the GRANTOR's address is current at the time of any notification. The GRANTOR covenants with the GOVERNMENT that it is seized of said Property in fee simple; that GRANTOR has the right to convey, and voluntarily conveys for the agreed upon price, this Easement with the additional authority for the GOVERNMENT to control and restrict the use and development of GRANTOR's Property as provided in this Easement; that GRANTOR has done nothing to impair such title as GRANTOR received; and the GRANTOR will warrant and defend the title against the lawful claims of all persons claiming by, under or through GRANTOR. 7 EI-EI-11401 IN WITNESS WHEREOF, the GRANTOR has caused this GRANT OF EASEMENT to be executed as of the day and year first written. UNITED STATES OF AMERICA DEPARTMENT OF THE NAVY By tfl{~~----;' Matthew D. Kurtz Real Estate Contracting Officer By direction, Naval Facilities Engineering Command, Mid-Atlantic 9742 Maryland Avenue Norfolk, Virginia 23511-2699 State of Virginia ) ) ) City of V.d!6J;VaJ- ~7'tcf/ I, fJ4T1UCRfJ NDoU 11191l!(..nls , a Notary Public for the State at Large, hereby certify that Matthew D. Kurtz, whose name as such is signed to the foregoing Easement has this day acknowledged the same before me in the City and State aforesaid. ."fl11H -1..1.""- .."", MO~oo,J1nder my hand this ~ day of 'v UAht:" , 200~t. ........ CJ\i>- ...... f;.: " ~ JZt ~ J:w,J ~... ~,,"'NOTARY<:J" ":... . VI. : ~.. PUBLIC "\ '::. a(;L U'; ~ Q..:" REG # 212944 ~ (j) ':~ Notary Public : (') : MY COMMISSION : :~ ~ 0 ". EXPIRES ,;' ::S.: ~~ ....oM~;@m1l1~ston expires: (p -30 '-0') ",,~1t,f:ket!t~t~~i/i1Umber: ,()I eX 7 1ft.! ,,/l::AL i1-1 0'"( ~\~. ""lfHII" 8 'I EI-EI-11401 CITY OF VIRGINIA BEACH APPROVED AS TO CONTENT By~L~~ Attest: B'J=r~ 1JlWtL APPROVED AS TO LEGAL SUFFICIENCY iLcfJiRJ\ ~ City Attorney's Office State of Virginia City of V~fl6:PJ.z:T-t t€'JcnoJ ) ) ) I, (JfJiR-~ flood /J:JtJHrJJ~ , a Notary Public for the State at Large, hereby certify that rAtnG6 1<.. ,jpoJlG . whose name as such is signed to the foregoing Easement has this day acknowledged the same before me in the City ~'Sof&t~ tlfp.resaid. .... \/I \) i?[" ", 0:-'" ,}i^ ........ J.;<! '.. i'~~,""'=.Ji?'~~~my hand this ;fAd day of .;JtL;J~ ,200J : 4:: REG # 212944 .~ (f) ';; f I~ 'J,.,~ rll,) ; C"l ~MYCOMMISSIQN} 'J: ~~ \., t!w! (!Yj~ Nod~ ,:,. 9-". EXPIRES :.:-;: 1t P bl' .~, '1', ". 06/30/2009 ... ~ ~:;' otary u lC ....:,.. /") '-. .-' r[.::; ,'.. ..',\..,-!..! ........ \~...' .. ,'. ' "1-:r::- TJ:t...a!. '. .j' 'MY;'1$:-{\l.\I.'\-sSlOn expires: Registration number: q -.30 .- t) 1 .1//2. () Jf1 9 State of Virginia ) ) ) City of 1I17l6':FJJ.:rn- BOJcH I, fJATtUC-t.71/ll)N!E /-)A J.)I<:nJ.5, a Notary Public for the State at Large, hereby certify that Jet/TN fh Dot::.; FIMScF;() . whose name as such is signed to the foregoing Easement has this day acknowledged the same before me in the City and State aforesaid. .,....Gi)l,yn under my hand this Jtca day of ." I" ..... ~OORE It. " ..- '\~ ...... .... 1",/ .~.... ~ :-SJ .'"NOTARY ....'1;- -:. ... f!! .. P\JBLlC '. 'I ~. = · .<f)~ = Cl i REG#212944: -:;; : : MY COMMISSION : ~ :,; -; '6.... M~gfu~@1fll expires: (p "-3D .-()? ~.. ~"'.~e'~~~ti'n.~tnnnber: a../:)'9H "70IfAA~<9.... <:~v.. ""i; YVE A L T'rI 0:",.... '",,,..,,,, \Tt.u) If" , 200 1- y1ah?-tta) >n ~'- f}od~ Notary Public 10 II EI-EI-11401 EXHIBIT A To Grant of Easement Table from CZO g 1804 TABLE 1 - AIR INST ALLA TIONS COMPATIBLE USE ZONES LAND USE COMPATIBILITY IN NOISE ZONES Land Use Land Use Compatibility Land Use Name 70-75 dB > 7 5 dB DNL DNL Residential and Related Single-family dwellings N N Semidetached dwellings N N Attached dwellings/townhouses N N Duplexes N N Multiple-family dwellings N N Dormitories and other group quarters N N Mobile home parks N N Hotels and motels N N Other residential uses N N Manufacturing Food & kindred products; manufacturing Y Y Textile mill products; manufacturing Y Y Apparel and other finished products; products made from fabrics, Y y leather and similar materials; manufacturing Lumber and wood products (except furniture); manufacturing y y Furniture and fixtures; manufacturing Y Y Paper and allied products; manufacturing y Y Printing, publishing, and allied industries Y Y Chemicals and allied products; manufacturing y Y Petroleum refining and related industries Y Y Rubber and misc. plastic products; manufacturing Y Y Stone, clay and glass products; manufacturing Y y Primary metal products; manufacturing y y Fabricated metal products; manufacturing Y y Professional scientific, and controlling instmments; photographic y y and optical goods; watches and clocks Miscellaneous manufacturing y y Transportation, communication and utilities Railroad, rapid rail transit, and street railway transportation Y y Motor vehicle transportation Y y Aircraft transportation Y y Marine craft transportation Y y Highway and street right-of-way y y Automobile parking y y Communication Y y Utilities Y y Other transportation, communication and utilities Y y Trade Wholesale trade y y Retail trade - building materials, hardware and fann equipment Y y Retail trade - general merchandise y y Retail trade - food y y Retail trade - automotive, marine craft, aircraft and accessories y y Retail trade - apparel and accessories y y Services Retail trade - furniture, home, furnishings and equipment Y y Retail trade - eating and drinking establishments Y y Other retail trade y y Finance, insurance and real estate services Y y Personal services y y 'I Cemeteries y y Business services y y Warehousing and storage y y Repair services y y Professional services y y Hospitals, other medical fac. y N Nursing homes N N Contract construction services Y y Government services y y Educational services Y N Miscellaneous y y Cultural, entertainment and recreational Cultural activities (& churches) y N Nature exhibits N N Public assembly halls N N Auditoriums, concert halls y N Outdoor music shells, amphitheaters N N Outdoor sports arenas, spectator sports Y N Other outdoor recreational facilities Y y Indoor recreational facilities y y Campgrounds y N Parks y N Other cultural, entertainment and recreation Y N Resource Production and Extraction Agriculture (except live stock) y y Livestock farming y N Animal breeding y N Agriculture related activities y y Forestry activities Y Y Fishing activities y y Mining activities y y Other resource production or extraction Y y EI-11282 Prepared by: United States of Amelica Commanding Officer (Attn: Code OPHRRES) Naval Facilities Engineering Conunand Mid Atlantic 9742 Malyland Avenue, Notfolk, VA 23511-3095 All cOlTespondence pCltaining to this Easement should reference No. N40085-09-RP-00162 EXEMPTED FROM RECORDA TlON TAXES UNDER SECTIONS 58. 1-8] ] (A)(3) AND 58.1-81 1 (C)(4) EXEMPT PURSUANT TO g7.1-22(c) GRANT OF EASEMENT THIS EASEMENT, made this 3rd day of June, 2009 by and between the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, hereinafter called the GRANTOR, and the UNITED STATES OF AMERICA, hereinafter called the GOVERNMENT ("the GRANTEE"); WITNESSETH: WHEREAS, the GRANTOR is the sole owner in fee simple of certain property ("Property"), hereinafter described as a tract ofland containing 30.878 acres, more or less, located in the City of Virginia Beach, State of Virginia and situated near Naval Air Station, Oceana, Virginia Beach, Virginia and Naval Auxiliary Landing Field, Fentress, Chesapeake, Virginia, hereinafter called the INSTALLATIONS; WHEREAS, it is in the public interest to limit development or use of the Property in the vicinity of the INSTALLATIONS that would be incompatible with its mission and/or might interfere, whether directly or indirectly, with cun-ent or anticipated military training, testing or operations on such INSTALLATIONS; and WHEREAS, the GRANTOR and GOVERNMENT have entered into a Multi-Year Agreement pursuant to 10 U.S.C. 2684a to acquire property interests that would be incompatible with the mission of the INSTALLATIONS and otherwise meet the mutual objectives of the GRANTOR and GOVERNMENT. NOW THEREFORE, in consideration of the sum of Seven Hundred Thousand and Noll 00 Dollars ($700,000.00), the receipt and sufficiency of which are hereby acknowledged, the GRANTOR does hereby grant and convey to the GOVERNMENT, a perpetual easement GPINs: 1484-21-5994 and 1484-22-6306 1 EI-11282 appurtenant to restrict the use and development of said Property that would encumber, impede, limit or otherwise be incompatible, as defined herein, with the mission of the INSTALLATIONS, and to provide for ingress and egress for the purpose of monitoring compliance with the easement, on, over and across said Propeliy more particularly described as: Easement on, over and across: GPIN: 1484-21-5994: ALL OF THAT certain lot, piece or parcel of land, situate, lying and being in the City of Virginia Beach, Virginia, more particularly described as GPIN No. 1484-21-5994 on that certain physical survey dated July 1, 2003 prepared by Midgette & Associates, P.C. entitled, "Physical Survey of GPIN-1484-21- 5994, D.B. 816 PG. 195, Virginia Beach, Virginia" made for Claudia M. Guitierrez, which survey is recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, as Instrument Number 200308050120523, to which reference is made for a more particular description. GPIN: 1484-22-6306 ALL OF THAT certain lot, piece or parcel of land, situate, lying and being in the City of Virginia Beach, Virginia, more particularly described as GPIN No. 1484-22-6306 on that certain physical survey dated February 20, 2003 prepared by Midgette & Associates, P.C. entitled, "Physical Survey of GPIN-1484-22- 6306, D.B. 1703 PG. 476, Virginia Beach, Virginia" made for Claudia M. Guitierrez, which survey is recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia, as Instrument Number 200308050120522, to which reference is made for a more particular description. IT BEING an easement over the same property acquired by the GRANTOR by deed from AGAR, L.L.C., a Virginia limited liability company, dated September 9, 2008 and recorded in the aforesaid Clerk's Office as Instrument Number 20080912001082060. 2 EI-11282 The Easement and rights for restrictions, inf,Tress and egress are described as follows: 1. Restricted Uses and Development Rh?:hts. Any activity or use of the Property inconsistent with the purpose of this Easement is prohibited. Without limiting the generality of the foregoing, and except as specifically pennitted, the following activities and uses are expressly prohibited: a. All activities EXCEPT those listed as compatible (Y) in the City Zoning Ordinance (Appendix A to the Code of the City of Virginia Beach) (CZO), as enacted as ofthe date of the date of the Multi-Year Agreement, by and between the City and the Government, as executed on September 25,2007, a copy of which is attached hereto as Exhibit A and incorporated herein by this reference, as follows: 1. For Property within the 65-70 db DNL and 70-75 dB DNL Noise Zone, those uses listed as compatible with the 70-75 dB DNL Noise Zone in Table 1 within CZO 91804, as enacted as of the date of the date ofthe Multi-Year Agreement, by and between the City and the Government, as executed on September 25,2007. 11. For Property within the >75 dB DNL Noise Zone, those uses listed as compatible with the >75 dB DNL Noise Zone in Table 1 within CZO 91804, as enacted as of the date of the date of the Multi-year agreement, by and between the City and the Government, as executed on September 25,2007. b. Human Habitation. The Property may not be used for human habitation, including but not limited to nursing homes and temporary accommodations such as cabins, trailers, R V s, tents, etc. c. Height Restrictions. No structure which on the basis of its height would constitute an obstruction to air navigation pursuant to Part 77 of the Federal Aviation Administration Regulations, 14 CFR. d. Lighting. All lighting equipment, including but not limited to floodlights and searchlights, and all protective lighting, such as streetlights, shall have positive optical control that shines downward so that no direct light is emitted above the horizontal plane. e. Other Operational & Training Hazards. No operations of any type are pennitted that produce smoke, glare or other visual hazards, or encourage concentrations of birds, such as bird feeding stations, ponds, (except as otherwise allowed herein) and mature crops left un-harvested, that may be dangerous for aircraft operating from the INSTALLATIONS. Controlled burns for agricultural purposes, habitat improvement and mitigation of fire hazards must be agreed to in writing by all parties to this Easement prior to commencing said activities. 3 EI-11282 f. Construction. New construction of any structure or edifice, and any other additions to, or alterations of the Property are prohibited except for those improvements or alterations deemed to be reasonably necessary to the allowed uses of the Property defined within this paragraph1, and to address any storm water management issues on or affecting the Property authorized pursuant to paragraph 2( c). GRANTOR shall provide GOVERNMENT written notice of GRANTOR's intention to undertake any such construction, together with information on its size, function, capacity and location, not less than ninety days (90) prior to the commencement thereto in accordance with paragraph 3 below. All authorized uses shall be consistent with applicable environmental laws. 2. Reserved Rh!:hts. GRANTOR reserves to itself, its successors and assigns, all rights accruing from its ownership of the Property that are not expressly prohibited herein and are not inconsistent with the purposes of this Easement, including but not limited to: a. Controlling predatory and problem animals by the use of selective control techniques. b. Managing and harvesting of all forests on the Property consistent with Virginia State Forestry Department Guidelines, as they may be amended from time to time. c. Establishing retention or detention ponds or impoundments to ameliorate storm water runoff on or affecting the Property. GRANTOR, in consultation with and with prior approval of GOVERNMENT, will be permitted to create such storm water impoundments on the Property, provided they are not enhanced for the attraction of waterfowl. However, should the impoundments or other improvements made attract such a concentration of birds to the extent that they cause a training or operational hazard, the GRANTOR, upon the request of the GOVERNMENT, shall remove the improvements to the extent required to ameliorate the training or operational hazard created. Such removal work shall be at the sole cost of the GRANTOR. 3. Notification Provisions. a. Notice ofIntent to Undertake New Uses and Construction. Whenever GRANTOR plans to undertake a new use or perfonn new construction on the Property, GRANTOR will notify the GOVERNMENT in writing by certified mail not less than ninety days (90) prior to the date that GRANTOR intends to undertake the activity in question. The notice shall describe the nature, scope, design, location, timetable, and any other material aspect of the proposed activity in sufficient detail to permit the GOVERNMENT to make an informed judgment as to its consistency with the purpose of this Easement. Failure of GRANTOR to give such notice shall be deemed a breach of the terms of this Agreement. Furthermore, should GRANTOR undertake 4 EI-11282 to make any improvements to control stonnwater runoff pursuant to paragraph 2(c) above, the provisions of this paragraph shall apply. b. GOVERNMENT 's Approval. Within ninety (90) days of receipt of the request, the GOVERNMENT will grant or withhold its approval in writing. The GOVERNMENT 's approval may be withheld only upon a reasonable determination by the GOVERNMENT that the use or construction proposed would be inconsistent with the purpose of this Easement and the restrictions on the use of the Property included herein. 4. Monitoring;. Enforcement and Remedies. a. The GOVERNMENT may enter upon the Property on an annual basis in order to monitor GRANTOR's compliance with the tenns of this Easement or at any time upon an event of noncompliance with the terms of this Easement to enforce the term of this Easement; provided that GOVERNMENT will provide at least ten (10) days notice of such entry to GRANTOR, except when there is a threat of imminent harm of personal injury or property damage. GOVERNMENT shall not unreasonably interfere with GRANTOR's use and quiet enjoyment of the Property. b. In the event of breach by GRANTOR of any terms, conditions, or obligations created by this Easement, the GRANTOR shall be afforded ninety (90) days from the receipt of GOVERNMENT's notice of non-compliance to cure the subject breach, except where irreparable harm may result from any delay in curing a breach. The GOVERNMENT may grant a reasonable extension oftime to complete the cure if it is determined by the GOVERNMENT to be necessary. In the event that the non-compliance is not cured within the ninety (90) day time frame, or extension of time if granted by the GOVERNMENT, the GOVERNMENT may: i. take necessary actions to correct the non-compliance and upon request by GOVERNMENT, GRANTOR shall reimburse GRANTEE for its reasonable actual costs incurred to correct the non-compliance; and/or ii. institute mediation or other alternative dispute resolution strategy that is agreed to by the parties; or iii. institute suits to enjoin any breach or enforce any term by injunction. The GOVERNMENT's remedies shall be cumulative and shall be in addition to any other lights and remedies available to the GOVERNMENT at law or equity. Enforcement of the terms of this Easement shall be at the discretion of the GOVERNMENT. No failure on the part ofthe GOVERNMENT to enforce any tenn hereof shall discharge or invalidate such term or any other 5 EI-11282 term hereof or affect the right of the GOVERNMENT to enforce the same in the event of a subsequent breach or default. 5. Costs and Liabilities. GRANTOR retains all responsibilities and shall bear all costs and liabilities of any kind related to the ownership and maintenance of the Property. 6. Subsequent Transfers. GRANTOR agrees to incorporate the terms of this Easement in any deed or other legal instrument by which it divests itself of any interest in the Property, including a leasehold interest. GRANTOR further agrees to give written notice to the GOVERNMENT of the conveyance at least 30 days prior to the date of conveyance. 7. Notices. Notice shall be considered as provided upon delivery to the respective owners of record for interests in property, unless otherwise agreed to in writing. Any notice, approval or communication that the GRANTOR is required to give to the GOVERNMENT in writing may be served personally or mailed to: To GRANTOR: City Manager's Office City of Virginia Beach 2401 Courthouse Drive, Building 1 Virginia Beach, VA 23456 With copy to: City Attorney's Office City of Virginia Beach 2401 Courthouse Drive, Building 1 Virginia Beach, VA 23456 To GOVERNMENT: Commanding Officer Naval Air Station, Oceana 1750 Tomcat Boulevard Virginia Beach, Virginia 23460 With copy to: Commanding Officer (ATTN: OPHRRES) Naval Facilities Engineering Command, Mid-Atlantic 9742 Maryland A venue Norfolk, Virginia 23511-3095 6 EI-11282 The GRANTOR is responsible for ensuring that the GOVERNMENT's address is current at the time of any notification. The GOVERNMENT is responsible for ensuring that the GRANTOR's address is current at the time of any notification. The GRANTOR covenants with the GOVERNMENT that it is seized of said Property in fee simple; that GRANTOR has the right to convey, and voluntarily conveys for the agreed upon price, this Easement with the additional authority for the GOVERNMENT to control and restrict the use and development of GRANTOR's Property as provided in this Easement; that GRANTOR has done nothing to impair such title as GRANTOR received; and the GRANTOR will warrant and defend the title against the lawful claims of all persons claiming by, under or through GRANTOR. IN WITNESS WHEREOF, the GRANTOR has caused this GRANT OF EASEMENT to be executed as of the day and year first written. UNITED STATES OF AMERICA DEPARTMENT OF THE NAVY By:~ Matthew D. Kurtz Real Estate Contracting Officer By direction, Naval Facilities Engineering Command, Mid-Atlantic 9742 Maryland Avenue Norfolk, Virginia 23511-2699 ) ) City of V XfC.6:P).'P} l8e71ef/ ) I, fh771~m-I100v A/)IJfb::ps , a Notary Public for the State at Large, hereby certify that Matthew D. Kurtz, whose name as such is signed to the foregoing Easement has this day acknowledged the same before me in the City and State aforesaid. Given under my hand this ~) day of Jv...#JG ,2009. ........... ~I!t&( J7u.,lL YkIuJ "" I", . ........ ~??~~.~,</1;. ".... Notary Pubhc i c)~"':\O,t>,R'{ ....12, "-:, .. " . \' yV~ .''0> -- . ff ~! W}~ W~l1issi~ expires: 02 / a 71fL/ ~ CL ~ :;gooiS,tm8.~P ~lijnber: t; llb } ~ 5 _ ,....,.. c:",?\RlS : -.;;: :: f I , ....,. L-/" 9' r~ ~ -:, 0" nGI'.)I)1'2()U.' r:z- ~.. '", ;~.:'..\j ..... ~;. .;.1) '., ''70 ....... ~.~' J", 1\.~An:' l'n" () u'''' 'i IVCfJ... ' Itl' ""IHI\\\ I State of Virginia 7 APPROVED AS TO CONTENT APPROVED AS TO LEGAL SUFFICIENCY Ciry~'~ State of Virginia City of V:rteG-nJ.m l3a:Jcfl EI-11282 CITY OF VIRGINIA BEACH B~k.~~ Attest: B~~d1n1'-0 ) ) ) I, (J~T~a-~ I-Io/),{[ ll/JtJx,:Ws , a Notary Public for the State at Large, hereby certify that\TIo/YJ~6 K- I 0PDIZG . whose name as such is signed to the foregoing Easement has this day acknowledged the same before me in the City fWd.~t~, aforesaid. .....'" ~OORE: /J""" .... \\'- ........ '7,<///(. .... ~ ;f) ,"N01.€)q'1V~ 111na~r my hand this ~ 1...:,'" PUBLIC ..:f., '-:, - ~ . 2129 A.4 . I ... :: Q: REG # '+"t: ~: : : MY COMM\SSION: q:,: : (1 -:. EXP\RES .:~: ,.'.;' -:. 0 .. II~ ('/-...: :/ .. ~ ". 06;30/2009.. "~) :: ',/;l,. _.. ..& \'~ _.r "/0 ....e... ~''''' ....1. """,~ACnn1,Wi:ssion expires: !.ill .~~ Ke~iMtation number: JAc.( day of .;Ju.p6" ,2009. ytdf~&~Jtt~ 'lJadluJ Notary Public t, ~ .30-0 'j 9./ f).,91ft1 8 I, Ihrhe~ fl1t'OIZC I-!/JN~~ a Notary Public for the State at Large, hereby certify that ffu11-I !laJ)(jes; t=t2(1.Sc.KJ . whose name as such is signed to the foregoing Easement has this day acknowledged the same before me in the City .iJM..~~ate aforesaid. "~I I" ..", ~OORE' ti "', ..........~~:..NOTA~er;~der my hand this .11\(;1 day of :: f!:.. PUBLIC '. ~t- ~. _"<'1'-. _cJ1M : cL: REG '# 212944'. -: : : MY COMMISSION': <( :,: :: 0 ~ EXPIRES : > ~ .... 0 . I . :=::::- o:a ':;. 'r;t .... 06/30/2009 ....9:S> ..:: "''',0 .... "...... ~-..;;: ..~ 'I, ~.l.'A:ifV.T~0tiQ;Mssion expires: I" vt:"At. ", '~~Mlttation number: State of Virginia ) ) ) City of V..J:/2.6:n):m ftAttJ ~- 30..-01 ,~V9. 9'1'1 EI-11282 c , 200.! .JI.lIJ6 ~t-dhfMMe, ;jcu-b~J Notary Public 9 EXHIBIT A To Grant of Easement Table from CZO S 1804 TABLE 1 - AIR INSTALLATIONS COMPATIBLE USE ZONES LAND USE COMPATIBILITY IN NOISE ZONES Land Use Land Use Compatibility Land Use Name 70-75 dB >75 dB DNL DNL Residential and Related Single-family dwellings N N Semidetached dwellings N N Attached dwellings/townhouses N N Duplexes N N Multiple-family dwellings N N Dormitories and other group quarters N N Mobile home parks N N Hotels and motels N N Other residential uses N N Manufacturing Food & kindred products; manufacturing Y Y Textile mill products; manufacturing Y Y Apparel and other finished products; products made fi'om fabrics, y Y leather and similar materials; manufacturing Lumber and wood products (except furniture); manufacturing y Y Furniture and fixtures; manufacturing y Y Paper and allied products; manufacturing y Y Printing, publishing, and allied industries Y Y Chemicals and allied products; manufacturing Y Y Petroleum refining and related industries Y Y Rubber and misc. plastic products; manufacturing y Y Stone, clay and glass products; manufacturing Y Y :1 Primary metal products; manufacturing y y Fabricated metal products; manufacturing y y Professional scientific, and controlling instruments; photographic y y and optical goods; watches and clocks Miscell aneous manufacturing y y Transportation, communication and utilities Railroad, rapid rail transit, and street railway transportation y y Motor vehicle transportation y y Aircraft transportation y y Marine craft transportation y y Highway and street right-of-way y y Automobile parking y y Communication y y Utilities y y Other transportation, communication and utilities y y Trade Wholesale trade y y Retail trade - building materials, hardware and farm equipment Y Y Retail trade - general merchandise y y Retail trade - food y y Retail trade - automotive, marine craft, aircraft and accessories y y Retail trade - apparel and accessories y y Services Retail trade - furniture, horne, furnishings and equipment y y Retail trade - eating and drinking establishments y Y Other retail trade y y Finance, insurance and real estate services y y Personal services y y Cemeteries Y Y Business services y y Warehousing and storage Y y Repair services y y Professional services Y y Hospitals, other medical fac. y N Nursing homes N N Contract construction services Y y Government services y y Educational services y N Miscellaneous y y Cultural, entertainment and recreational Cultural activities (& churches) y N Nature exhibits N N Public assembly halls N N Auditoriums, concert halls y N Outdoor music shells, amphitheaters N N Outdoor sports arenas, spectator sports y N Other outdoor recreational facilities y y Indoor recreational facilities y y Campgrounds y N Parks y N Other cultural, entertainment and recreation y N Resource Production and Extraction Agriculture (except live stock) y y Livestock farming y N Animal breeding y N Agriculture related activities y y I Forestry activities y y Fishing activities y y Mining activities y y Other resource production or extraction y y EI-10153 Prepared by: United States of America Commanding Officer (Attn: Code OPHRRES) Naval Facilities Engineering COIlU11and Mid Atlantic 9742 Maryland Avenue, Norfolk, VA 23511-3095 All correspondence pel1aining to this Easement should reference No. N40085-09-RP-00161 EXEMPTED FROM RECORDA TION TAXES UNDER SECTIONS 58.1-81 1 (A)(3) AND 58.1-81 1 (C)(4) EXEMPT PURSUANT TO g7.1-22(c) GRANT OF EASEMENT THIS EASEMENT, made this 3rd day of June, 2009 by and between the CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia, hereinafter called the GRANTOR, and the UNITED STATES OF AMERICA, hereinafter called the GOVERNMENT ("the GRANTEE"); WITNESSETH: WHEREAS, the GRANTOR is the sole owner in fee simple of certain property ("Property"), hereinafter described as a tract ofland containing 51.844 acres, more or less, located in the City of Virginia Beach, State of Virginia and situated near Naval Air Station, Oceana, Virginia Beach, Virginia and Naval Auxiliary Landing Field, Fentress, Chesapeake, Virginia, hereinafter called the INSTALLATIONS; WHEREAS, it is in the public interest to limit development or use of the Property in the vicinity of the INSTALLATIONS that would be incompatible with its mission and/or might interfere, whether directly or indirectly, with current or anticipated military training, testing or operations on such INST ALLA TIONS; and WHEREAS, the GRANTOR and GOVERNMENT have entered into a Multi-Year Agreement pursuant to 10 U.S.C. 2684a to acquire property interests that would be incompatible with the mission of the INSTALLATIONS and otherwise meet the mutual objectives ofthe GRANTOR and GOVERNMENT. NOW THEREFORE, in consideration of the sum of Seven Hundred Twenty-Three Thousand Six Hundred Seventy-Four and 501100 Dollars ($723,674.50), the receipt and sufficiency of which are hereby acknowledged, the GRANTOR does hereby grant and GPIN: 1483-38-6300 EI-10153 and convey to the GOVERNMENT, a perpetual easement appurtenant to restrict the use and development of said Property that would encumber, impede, limit or otherwise be incompatible, as defined herein, with the mission of the INSTALLATIONS, and to provide for ingress and egress for the purpose of monitoring compliance with the easement, on, over and across said Property more particularly described as: Easement on, over and across: ALL THAT certain lot, piece or parcel of land, lying, situate and being in the City of Virginia Beach, Virginia and designated and described as "PROPERTY TO BE ACQUIRED BY THE CITY OF VIRGINIA BEACH AREA = 51.84356 ACRES GPIN 1483-38- 6300," on that certain plat entitled, "PLAT SHOWING A TRACT OF LAND TO BE ACQUIRED BY THE CITY OF VIRGINIA BEACH FROM HARRY A. POTTER, VIRGINIA BEACH, VIRGINIA," Scale: l' = 200', dated June 5, 2007, prepared by Survey Bureau, Engineering Division, Department of Public Works, City of Virginia Beach, Virginia, which plat is duly recorded in the Clerk's Office of the Circuit Comi of the City of Virginia Beach, Virginia as Instrument 20070808001080320, to which reference is made for a more particular description. IT BEING an easement over the same property acquired by the GRANTOR by deed from Harry A. Potter recorded in the Clerk Office of the Circuit Court of the City of Virginia Beach, as Instrument Number 20070829001181280. The Easement and rights for restrictions, ingress and egress are described as follows: 1. Restricted Uses and Development Rights. Any activity or use of the Property inconsistent with the purpose of this Easement is prohibited. Without limiting the generality of the foregoing, and except as specifically permitted, the following activities and uses are expressly prohibited: a. All activities EXCEPT those listed as compatible (Y) in the City Zoning Ordinance (Appendix A to the Code of the City of Virginia Beach) (CZO), as enacted as of the date of the date of the Multi-Year Agreement, by and between the City and the Government, as executed on September 25, 2007, a copy of which is attached hereto as Exhibit A and incorporated herein by this reference, as follows: 1. For Property within the 65-70 db DNL and 70-75 dB DNL Noise Zone, those uses listed as compatible with the 70-75 dB DNL Noise Zone in Table 1 within CZO S 1804, as enacted as of the date of the date of the 2 EI-10153 Multi- Year Agreement, by and between the City and the Government, as executed on September 25, 2007. 11. For Property within the >75 dB DNL Noise Zone, those uses listed as compatible with the >75 dB DNL Noise Zone in Table 1 within CZO S 1804, as enacted as of the date of the date of the Multi-year agreement, by and between the City and the Government, as executed on September 25,2007. b. Human Habitation. The Property may not be used for human habitation, including but not limited to nursing homes and temporary accommodations such as cabins, trailers, R V s, tents, etc. c. Height Restrictions. No structure which on the basis of its height would constitute an obstruction to air navigation pursuant to Part 77 of the Federal Aviation Administration Regulations, 14 CFR. d. Lighting. All lighting equipment, including but not limited to floodlights and searchlights, and all protective lighting, such as streetlights, shall have positive optical control that shines downward so that no direct light is emitted above the horizontal plane. e. Other Operational & Training Hazards. No operations of any type are permitted that produce smoke, glare or other visual hazards, or encourage concentrations of birds, such as bird feeding stations, ponds, (except as otherwise allowed herein) and mature crops left un-harvested, that may be dangerous for aircraft operating from the INSTALLATIONS. Controlled bums for agricultural purposes, habitat improvement and mitigation of fire hazards must be agreed to in writing by all parties to this Easement prior to commencing said activities. f. Construction. New construction of any structure or edifice, and any other additions to, or alterations of the Property are prohibited except for those improvements or alterations deemed to be reasonably necessary to the allowed uses of the Property defined within this paragraph1, and to address any storm water management issues on or affecting the Property authorized pursuant to paragraph 2(c). GRANTOR shall provide GOVERNMENT written notice of GRANTOR's intention to undertake any such construction, together with information on its size, function, capacity and location, not less than ninety days (90) prior to the commencement thereto in accordance with paragraph 3 below. All authorized uses shall be consistent with applicable environmental laws. 3 EI-10153 2. Reserved Ril!hts. GRANTOR reserves to itself, its successors and assigns, all rights accruing from its ownership of the Property that are not expressly prohibited herein and are not inconsistent with the purposes of this Easement, including but not limited to: a. Controlling predatory and problem animals by the use of selective control techniques. b. Managing and harvesting of all forests on the Property consistent with Virginia State Forestry Department Guidelines, as they may be amended from time to time. c. Establishing retention or detention ponds or impoundments to ameliorate storm water runoff on or affecting the Property. GRANTOR, in consultation with and with prior approval of GOVERNMENT, will be permitted to create such storm water impoundments on the Property, provided they are not enhanced for the attraction of waterfowl. However, should the impo undments or other improvements made attract such a concentration of birds to the extent that they cause a training or operational hazard, the GRANTOR, upon the request of the GOVERNMENT, shall remove the improvements to the extent required to ameliorate the training or operational hazard created. Such removal work shall be at the sole cost ofthe GRANTOR. 3. Notification Provisions. a. Notice ofIntent to Undertake New Uses and Construction. Whenever GRANTOR plans to undertake a new use or perform new construction on the Property, GRANTOR will notify the GOVERNMENT in writing by certified mail not less than ninety days (90) prior to the date that GRANTOR intends to undertake the activity in question. The notice shall describe the nature, scope, design, location, timetable, and any other material aspect of the proposed activity in sufficient detail to permit the GOVERNMENT to make an informed judgment as to its consistency with the purpose of this Easement. Failure of GRANTOR to give such notice shall be deemed a breach of the terms of this Agreement. Furthermore, should GRANTOR undertake to make any improvements to control stormwater runoff pursuant to paragraph 2(c) above, the provisions ofthis paragraph shall apply. b. GOVERNMENT's Approval. Within ninety (90) days of receipt of the request, the GOVERNMENT will grant or withhold its approval in writing. The GOVERNMENT's approval may be withheld only upon a reasonable determination by the GOVERNMENT that the use or construction proposed would be inconsistent with the purpose of this Easement and the restrictions on the use of the Property included herein. 4 EI-10153 4. Monitoring:. Enforcement and Remedies. a. The GOVERNMENT may enter upon the Propeliy on an annual basis in order to monitor GRANTOR's compliance with the terms of this Easement or at any time upon an event of noncompliance with the terms of this Easement to enforce the term of this Easement; provided that GOVERNMENT will provide at least ten (10) days notice of such entry to GRANTOR, except when there is a threat of imminent harm of personal injury or property damage. GOVERNMENT shall not unreasonably interfere with GRANTOR's use and quiet enjoyment ofthe Property. b. In the event of breach by GRANTOR of any terms, conditions, or obligations created by this Easement, the GRANTOR shall be afforded ninety (90) days from the receipt of GOVERNMENT's notice of non-compliance to cure the subject breach, except where irreparable harm may result from any delay in curing a breach. The GOVERNMENT may grant a reasonable extension of time to complete the cure ifit is determined by the GOVERNMENT to be necessary. In the event that the non-compliance is not cured within the ninety (90) day time frame, or extension of time if granted by the GOVERNMENT, the GOVERNMENT may: i. take necessary actions to correct the non-compliance and upon request by GOVERNMENT, GRANTOR shall reimburse GRANTEE for its reasonable actual costs incurred to correct the non-compliance; and/or ii. institute mediation or other alternative dispute resolution strategy that is agreed to by the parties; or iii. institute suits to enjoin any breach or enforce any tenn by injunction. The GOVERNMENT's remedies shall be cumulative and shall be in addition to any other rights and remedies available to the GOVERNMENT at law or equity. Enforcement of the terms of this Easement shall be at the discretion of the GOVERNMENT. No failure on the part ofthe GOVERNMENT to enforce any tenn hereof shall discharge or invalidate such term or any other term hereof or affect the right of the GOVERNMENT to enforce the same in the event of a subsequent breach or default. 5. Costs and Liabilities. GRANTOR retains all responsibilities and shall bear all costs and liabilities of any kind related to the ownership and maintenance of the Property. 6. Subsequent Transfers. GRANTOR agrees to incorporate the tenns of this Easement in any deed or other legal instrument by which it divests itself of any interest in the Property, including a leasehold interest. GRANTOR further agrees to give written notice to the GOVERNMENT of the conveyance at least 30 days prior to the date of conveyance. 5 EI-10153 7. Notices. Notice shall be considered as provided upon delivery to the respective owners of record for interests in property, unless otherwise agreed to in writing. Any notice, approval or communication that the GRANTOR is required to give to the GOVERNMENT in writing may be served personally or mailed to: To GRANTOR: City Manager's Office City of Virginia Beach 2401 Courthouse Drive, Building 1 Virginia Beach, VA 23456 With copy to: City Attorney's Office City of Virginia Beach 2401 Courthouse Drive, Building 1 Virginia Beach, V A 23456 To GOVERNMENT: Commanding Officer Naval Air Station, Oceana 1750 Tomcat Boulevard Virginia Beach, Virginia 23460 With copy to: Commanding Officer (A TIN: OPHRRES) Naval Facilities Engineering Command, Mid-Atlantic 9742 Maryland Avenue Norfolk, Virginia 23511-3095 The GRANTOR is responsible for ensuring that the GOVERNMENT's address is current at the time of any notification. The GOVERNMENT is responsible for ensuring that the GRANTOR's address is current at the time of any notification. The GRANTOR covenants with the GOVERNMENT that it is seized of said Property in fee simple; that GRANTOR has the right to convey, and voluntarily conveys for the agreed upon price, this Easement with the additional authority for the GOVERNMENT to control and restrict the use and development of GRANTOR's Property as provided in this Easement; that GRANTOR has done nothing to impair such title as GRANTOR received; and the GRANTOR 6 EI-10153 will warrant and defend the title against the lawful claims of all persons claiming by, under or through GRANTOR. IN WITNESS WHEREOF, the GRANTOR has caused this GRANT OF EASEMENT to be executed as of the day and year first written. UNITED STATES OF AMERICA DEPARTMENT OF THE NAVY By: &W1~~ -> Matthew D. Kurtz Real Estate Contracting Officer By direction, Naval Facilities Engineering Command, Mid-Atlantic 9742 Maryland Avenue Norfolk, Virginia 23511-2699 State of Virginia ) ) ) Cityof !/~J4J ~I "',......,, ", "I,/)_ . - AI J L . "......,"?- ~??~E.~}.~.zo.nJ- &ctt~ f1HIVK.:z:Nf , a Notary Public for the State at Large, l~""NO~bj..~~y that Matthew D. Kurtz, whose name as such is signed to the foregoing Easement g if f RE~f~{J2~.bis'~y~cknow1edged the sam7 before me in the City and State aforesaid. : :MYCOMMIS~~t@$dermyhand this $~( daYOf~ ,2oo'l . ;'0 \ EXPIRES .:~: -" - ~ -:. ~ ". 06/30/2009... 0l ......,}~,.'o~..........<..~/;f....... &'IJL hll12/f{ J0l./ , 0'<; ," I"" ALl'" "..,... Notary Public "."..", My Commission expires: ~ ,-30" c) 9 Registration number: a...1 ,J} if 'fY 7 APPROVED AS TO CONTENT ~ Planning e APPROVED AS TO CONTENT P APPROVED AS TO LEGAL SUFFICIENCY , ;t~ ((YJ City Attorney's Office State of Virginia City of II.PeGpj:I:)1 I3e'lfCH EI-10153 CITY OF VIRGINIA BEACH :~~~~ B7~~firrnC ) ) ) I, fJA112.zt-:nt ;'!tXJ!GC J..IMX.rNS , a Notary Public for the State at Large, hereby certify that vtWes K SfJd~e , whose name as such is signed to the foregoing Easement has this day acknowledged the same before me in the City and State aforesaid. ",."."'~ ~. ........,~~~.~:~~~l.~~~~nder my hand this ~d day of l "'~ ..' NU1A:"/">":[~, ~, .": C! ... PUBLIC "."::~, ':. :: : REG il 'P9'1 ~ .') ::' :: n : MY COI\fl~~I;:-I'U-l' : ~ ~ _. ''-'0 l"l. .. ~ '1:'. EXPiRES : ~ .':: -:;...%.....~~/~~orllih..iision expires: ~ .- 3() ..0 <; ""~~A'l1e.ij~ttfbon number: :;),,; ~ 9'1'"1 I, ClH ~~ "'"1$11"- JUIJt5 , 200q yJak~ fJ;~.L yj~iUtJ Notary Public 8 State of Virginia ) ) ) City of !/ZICGWa7 i!Ja:JCH 1,1 EI-10153 I, !htfl:1:.f.;m NOlJeE /-IrJ-JI1WS , a Notary Public for the State at Large, hereby certify that tfa-n--I ;Joj)(..:..e..s FfV.JSE/'CJ . whose name as such is signed to the foregoing Easement has this day acknowledged the same before me in the City and State aforesaid. """""'1 " " ....,,, ~OO RE' '" ...... c;,~"'en~~_tf1)Y hand this ~ r0 .' NOTAR '. '/ '" : i::::.' PUBLIC '. '-t- -:. . .(jJ~. = c{ i REG # 212944.: ~ : : MY COMMISSION : ~ .: :: 00.., EXPIRES : :?: :: ... 9'0" -=:.....~.. 06/30/200 ... gj. ,~ !lr'J,?~rmnl~b~.i:rxpires: q - 3tJ-O 9 Re~~tH~~llb~ber: ~/9.- q+"f 3\~~ day of va-AN;" ,2002- ~'7n()&A.L jJ{l~ Notary Public 9 EXHIBIT A To Grant of Easement Table from CZO S 1804 TABLE 1 - AIR INST ALLA TIONS COMPATIBLE USE ZONES LAND USE COMPATIBILITY IN NOISE ZONES ". Land Use Land Use Compatibility Land Use Name 70-75 dB >75 dB DNL DNL Residential and Related Single-family dwellings N N Semidetached dwellings N N Attached dwellings/townhouses N N Duplexes N N Multiple-family dwellings N N Dormitories and other group quarters N N Mobile home parks N N Hotels and motels N N Other residential uses N N Manufacturing Food & kindred products; manufacturing Y Y Textile mill products; manufacturing y y Apparel and other finished products; products made from fabrics, y y leather and similar materials; manufacturing Lumber and wood products (except furniture); manufacturing Y y Furniture and fixtures; manufacturing Y y Paper and allied products; manufacturing y y Printing, publishing, and allied industries Y Y Chemicals and allied products; manufacturing y y Petroleum refining and related industries Y y Rubber and misc. plastic products; manufacturing y y Stone, clay and glass products; manufacturing y y Primary metal products; manufacturing y y Fabricated metal products; manufacturing y y Professional scientific, and controlling instruments; photographic y y and optical goods; watches and clocks Miscellaneous manufacturing y y Transportation, communication and utilities Railroad, rapid rail transit, and street railway transportation y y Motor vehicle transportation y y Aircraft transportation y y Marine craft transportation y y Highway and street right-of-way y y Automobile parking y y Communication y y Utilities y y Other transportation, communication and utilities y y Trade Wholesale trade y y Retail trade - building materials, hardware and farm equipment y y Retail trade - general merchandise y y Retail trade - food y y Retail trade - automotive, marine craft, aircraft and accessories y y Retail trade - apparel and accessories y y Services Retail trade - furniture, home, furnishings and equipment y y Retail trade - eating and drinking establishments y y Other retail trade y y Finance, insurance and real estate services y y Personal services y y Cemeteries y y Business services y y Warehousing and storage y y Repair services y y Professional services y y Hospitals, other medical fac. y N Nursing homes N N Contract construction services y y Government services y y Educational services y N Miscellaneous y y Cultural, entertainment and recreational Cultural activities (& churches) y N Nature exhibits N N Public assembly halls N N Auditoriums, concert halls y N Outdoor music shells, amphitheaters N N Outdoor sports arenas, spectator sports y N Other outdoor recreational facilities y y Indoor recreational facilities y y Campgrounds y N Parks y N Other cultural, entertainment and recreation y N Resource Production and Extraction Agriculture (except live stock) y y Livestock farming y N Animal breeding y N Agriculture related activities y y Forestry activities y y Fishing activities y y Mining activities y y Other resource production or extraction y y II - 39 - Item V-K.4. ORDINANCES/RESOL UTIONS ITEM # 58861 Upon motion by Vice Mayor Jones, seconded by Councilman DeSteph, City Council ADOPTED: Ordinance to GRANT Theme Restaurants, Inc., t/a II Giardino Ristorante two five (5) year Franchise Agreements for open air cafes at the Resort Area. Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None May 26, 2009 ,,' III 1 AN ORDINANCE GRANTING THEME 2 RESTAURANTS, INC., TIA IL GIARDINO 3 RISTORANTE, TWO FRANCHISE 4 AGREEMENTS FOR AN OPEN AIR CAFE IN 5 THE RESORT AREA 6 7 WHEREAS, by resolution adopted November 15, 1985, City Council ("Council") 8 authorized the City Manager to promulgate Open Air Cafe Regulations, which have 9 been amended from time to time, for the operation of open air cafes on public property; 10 and 11 12 WHEREAS, the City has developed a franchise agreement for the regulation of 13 open air cafes, which grantees are required to execute as a condition of the grant; and 14 15 WHEREAS, Theme Restaurants is seeking two franchise agreements for the 16 operation of (1) an Atlantic Avenue Side Walk cafe; and (2) an Atlantic Avenue Side 17 Street cafe; and 18 19 WHEREAS, the Convention and Visitors Bureau recommends that Theme 20 Restaurants be granted two five-year franchise agreements for the operation of an 21 Atlantic Avenue Side Walk cafe and an Atlantic Avenue Side Street cafe. 22 23 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 24 VIRGINIA BEACH: 25 26 That the City Council hereby grants two five-year franchise agreements to 27 Theme Restaurants, Inc., t/a II Giardino Ristorante, subject to the terms and conditions 28 of the franchise agreements and all ordinances, resolutions, and regulations applicable 29 to open air cafes. 30 31 Adopted by the City Council of Virginia Beach, Virginia on this 26th day of May, 32 2009. A9Lfto~ Convention and Visitors Bureau L' Office CA 11125 R-4 May 12, 2009 III Iii - 40- Item V-K5. ORDINANCES/RESOLUTIONS ITEM # 58862 Upon motion by Vice Mayor Jones, seconded by Councilman DeSteph, City Council ADOPTED: Ordinance to AUTHORIZE the City Manager to execute a four (4) month lease for vehicular parking with the Dolphin Run Condominium Association, Inc. at 3rd Street and Atlantic Avenue Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James 1. Wood Council Members Voting Nay: None Council Members Absent: None May 26, 2009 i, 1;1' 1 AN ORDINANCE AUTHORIZING THE CITY 2 MANAGER TO EXECUTE A SHORT-TERM LEASE 3 (4 MONTHS) WITH THE DOLPHIN RUN 4 CONDOMINIUM ASSOCIATION, INC., A VIRGINIA 5 NON-STOCK CORPORATION, FOR A O.09-ACRE 6 PARCEL OF CITY-OWNED LAND LOCATED AT 3m 7 STREET AND ATLANTIC AVENUE 8 9 10 WHEREAS, the City of Virginia Beach ("the City") is the owner of that 11 certain 0.09 acre of land located at 3rd Street and Atlantic Avenue, Virginia 12 Beach, Virginia (the "Premises"); 13 14 WHEREAS, the Dolphin Run Condominium Association, Inc. ("Dolphin 15 Run"), a Virginia non-stock corporation, has agreed to pay the City $4,320 for the 16 use of the Premises for a four-month period; 17 18 WHEREAS, Dolphin Run would like to enter into a formal lease 19 arrangement with the City for use of the Premises shown on Exhibit A; 20 21 WHEREAS, the Premises will be utilized as an overflow parking lot for the 22 registered guests of Dolphin Run, and for no other purpose; 23 24 NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE 25 CITY OF VIRGINIA BEACH, VIRGINIA: 26 27 That the City Manager is hereby authorized to execute a lease for a term 28 of less than five years, between the Dolphin Run Condominium Association, Inc., 29 a Virginia non-stock corporation, and the City, for the 0.09 acre of land located at 30 3rd Street and Atlantic Avenue (the "Premises") in accordance with the Summary 31 of Terms attached hereto as Exhibit B and such other terms, conditions or 32 modifications as may be acceptable to the City Manager and in a form deemed 33 satisfactory to the City Attorney. 34 35 Adopted by the Council of the City of Virginia Beach, Virginia on the 26th day of 36 May, 2009. 1,1 CA-10989 R-1 5/13/09 \ \vbgov .com\dfs 1 \applications\citylawprod\cycom32\Wpdocs\D007\P005\00011835. DOC APPROVED AS TO LEGAL SUFFICIENCY AND FORM APPROVED AS TO CONTENT ~ ~\ W\k Signatur si~b3J7 I)M S ! ~ ( . -hc-'> ,v[ ~ +_ Department !il III EXHIBIT B SUMMARY OF TERMS LEASE FOR THE USE OF 0.09 ACRE CITY-OWNED PROPERTY LESSOR: City of Virginia Beach LESSEE: Dolphin Run Condominium Association, Inc. PREMISES: Approximately .09-acre parcel of City-owned property located at the comer of 3rd Street and Atlantic Avenue, known as GPIN: 2427-32-0138 TERM: May 15, 2009 through September 15,2009 RENT: Rent shall be $4,320, payable either in a lump sum or in equal monthly installments of $1,080. RIGHTS AND RESPONSmILITIES OF DOLPHIN RUN CONDOMINIUM ASSOCIATION, INC.: . Will use the Premises for overflow parking for its guests and for no other purpose. . Will keep, repair, and maintain the Premises at its expense and will do so in a workmanlike manner. . Will maintain commercial general liability insurance coverage with policy limits of not less than one million dollars ($1,000,000) combined single limits per occurrence, issued by an insurance company licensed to conduct the business of insurance in Virginia. Such insurance shall name the City of Virginia Beach as an additional insured. Lessee shall provide a certificate evidencing the existence of such insurance. . Will maintain Automobile Liability Insurance including coverage for non-owned and hired vehicles in an amount not less than five hundred thousand dollars ($500,000) combined single limits per occurrence, issued by an insurance company licensed to conduct the business of insurance in Virginia. Licensee shall provide a certificate evidencing the existence of such insurance. . Will assume the entire responsibility and liability for any and all damages to persons or property caused by any act or omission of the Lessee or its agents, etc. associated with the use of the Premises. . Will comply with all applicable laws, ordinances, and regulations in the performance of its obligations under the Lease. RIGHTS AND RESPONSmILITIES OF THE CITY: . Will have access to the Premises at any time, without prior notice, in the event of an emergency or public necessity. 1,1 . Will have the right to require Dolphin Run Condominium Association, Inc. to surrender possession and control of the Premises to the City upon forty-eight (48) hours' notice in the discharge ofthe City's powers, purposes, or responsibilities. . Will have the right to grant easements and rights of way across the Premises for streets, alleys, public highways, drainage, and other similar purposes. TERMINATION: The City may terminate the Lease upon providing thirty (30) days' written notice to Dolphin Run Condominium Association, Inc. II - 41 - Item V-K.6. ORDINANCES/RESOL UTIONS ITEM # 58863 Upon motion by Vice Mayor Jones, seconded by Councilman DeSteph, City Council ADOPTED: Resolution of the CITY OF VIRGINIA BEACH re Spot Blif!ht Abatement (City Code <S 16-39) Determination at 620 Counselor Square. D/STRICT 3 - ROSE HALL Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None May 26, 2009 I" 1,1' 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 A RESOLUTION OF THE PLANNING COMMISSION RECOMMENDING THAT THE PROPERTY AT 620 COUNSELOR SQUARE BE DECLARED BLIGHTED AND THE PROPERTY ACQUIRED WHEREAS, the property located at 620 Counselor Square in the City of Virginia Beach (lithe Property") was placarded as unsafe and the owner, Marlena Evans, notified by mail of the violations of the Property Maintenance Code; WHEREAS, the violations were that the Property was vacant and open, and that the roofing system was collapsing; , , WHEREAS, since January 2002, the Department of Housing and Neighborhood Preservation ("DHNP") has issued 28 notices of violations, and the owner has responded to none of these; WHEREAS, the initial spot blight letter requesting the owner to present a plan within 30 days was issued January 6, 2009, and there has been no response; and WHEREAS, DHNP's plan for the Property is that the property should be acquired by the city and then resold. The structure should be brought into code compliance by the new owner; as either owner occupied or resold for rent as a quality, affordable housing unit. NOW, THEREFORE, BE IT RESOLVED BY THE PLANNING COMMISSION OF THE CITY OF VIRGINIA BEACH, VIRGINIA: 1. 36-49; That the Property is blighted, within the meaning of Virginia Code Section 2. That the owner of the Property has failed to cure the blight or present a reasonable plan to do so; 3. That the plan for the repair or other disposition of the Property is in accordance with the Comprehensive Plan, City Zoning Ordinance and other applicable land use regulations; and 4. That the Property is not located within an area listed on the National Register of Historic Places; FURTHER, THE PLANNING COMMISSION RECOMMENDS: That the City Council approve the plan presented by the Department of Housing and Neighborhood Preservation for the repair or other disposition of the Property, to-wit: The property should be acquired by the city and then resold. The structure should be brought into code compliance by the new owner; either as owner occupied or resold for rent as a quality, affordable housing unit. This recommendation is based on the , II 48 appraised value of the property, on the type and cost of comparable housing in the 49 area, and on the very unusual opportunity to provide affordable housing. 50 Adopted by the Planning Commission of the City of Virginia Beach, Virginia on the 26th day of May ,2009. L- APPROVED AS TO LEGAL SUFFICIENCY: (JJ{~ m;JJd: City Attorney's Office APPROVED AS TO CONTENT: Gm'1".H..~ORS I It"A}' ~.ll /.", 'C::O~ C,::J ~ C0 c:::, Spot Blight II #1 April 8, 2009 Public Hearing APPLICANT: CITY OF VIRGINIA BEACH PROPERTY OWNER: MARLENA EVANS STAFF: Wells Freed, Dept of Housing and Neighborhood Preservation Sharon Prescott, Dept of Housing and Neighborhood Preservation REQUEST: Spot Bliqht Abatement Determination ADDRESS I DESCRIPTION: 620 Counselor Square GPIN: 1486269112 ELECTION DISTRICT: BA YSIDE SITE SIZE: AICUZ: 2,416.03 square feet Less than 65 dB DNL SUMMARY OF REQUEST This property is the subject of possible acquisition under the "spot blight authority" provided for under Section 16-39 of the City Code. It is being recommended for acquisition due to its existing condition and its continuing status as a 'problem property.' Under the process required by the City Code, both the Planning Commission and the City Council must hold public hearings, determine that the property meets the definition of blight, and that the owner has failed to remedy or present a plan to remedy the blight. The property was placarded as unsafe on June 26,2007, as it was vacant and the roofing system was collapsing. Since January 2002, the Department of Housing and Neighborhood Preservation (DHNP) I Code Enforcement Division has issued 28 notices of violation, including 25 property maintenance notices and three notices for exterior code violations. The property owner has responded to none of these notices. As a result, DHNP/Code Enforcement has been maintaining the exterior of the property. CITY OF VIRGINIA BEACH - SPOT BLIGHT Agenda Item 1 Page 1 1,1 Key Facts - 620 Counselor SQ. Date Determined Unsafe June 26, 2007 Number of Code Enforcement Notices Issued 28 Assessed Value $138,800 Land Value $62,700 Buildinq Value $76,100 Delinauent Taxes $4,248 Liens Due $3,976 Estimated Repairs Needed $42,000 LAND USE AND ZONING INFORMATION EXISTING LAND USE: Townhouse SURROUNDING LAND USE AND ZONING: North: South: East: West: . Townhouse / A-12 Residential District . Townhouse / A-12 Residential District . Townhouse / A-12 Residential District . Townhouse / A-12 Residential District NATURAL RESOURCE AND CULTURAL FEATURES: Developed site. No known significant natural resource or cultural features. EVALUATION AND RECOMMENDATION Plan for Use of Prooertv - The initial notice in the spot blight process was issued on January 6, 2009, notifying the property owner that they must present a plan to correct blighted conditions within thirty days. To date, there has been no response from the owner to this notice. If a spot blight determination is made, the City can proceed with a plan for use of the property. Staff concludes that the property should be acquired by the City. It is recommended that the property should then be declared as excess property and offered for sale. The rehabilitation requirements to bring the property into compliance with the Code can be part of the sales agreement. Once fully rehabilitated by the new owner, the property could be owner-occupied or resold as a quality, affordable housing unit for either owner-occupancy or rental. The Department of Housing and Neighborhood Preservation will monitor the rehabilitation to ensure the property is brought into full Code compliance. This recommendation is based on the assessed value of the property, on the type and cost of comparable CITY OF VIRGINIA BEACH - SPOT BLIGHT Agenda Item 1 Page 2 II housing in the area, and on the very unusual opportunity to provide affordable housing. It is recommended that Public Works Real Estate handle the advertising and sale of the property. Cost and Fundina - Total cost to the City will include acquisition, advertising, legal and appraisal costs, possible short-term holding costs, and repair costs to stabilize the property until it is resold. The following charts provide a cost estimate based on the City's assessed value and the estimated repair costs. Cost Estimates Item Amount Explanation Advertising, legal, appraisal $4,000 and holdina costs Acquisition Cost $110,500 Appraised value of $152,500 when fully repaired, less est. repair cost of $42,000 Contingency for unanticipated 2,500 expenses Total Project Cost $117,000.00 Funding Requirements Item Amount Explanation Current Spot Blight CIP $13,000 This amount is unencumbered and can be balance applied to this proiect once authorized Appropriation requested $104,000 Total $117,000.00 Use of Disposition Proceeds Amount Dependent on sale price Use Reimbursement of appro riation The Planning Commission is required to make the following findings to make a spot blight determination: 1. Is the property bliahted? The property meets the criteria for blight as outlined in the Spot Blight Ordinance adopted by City Council as noted below. . This property has been vacant for over seven years. . This property has been the subject of 28 Code enforcement notices in the past seven years. . The property is in poor condition and is affecting adjacent properties. The roofing system is compromised and the property is an eyesore to the neighborhood. The owners of this property have consistently failed to maintain the property. . The owners of this property are in arrears in their taxes and owe $3,976.51 in liens to the Department of Housing and Neighborhood Preservation. 2. Has the owner cured the bliaht or presented a reasonable plan to do so? No. On January 6, 2009, the property owner was issued a notice that they must present a plan to correct blighted conditions within thirty days. To date, there has been no response from the owner on this notice. CITY OF VIRGINIA BEACH - SPOT BLIGHT Agenda Item 1 Page 3 1,1 3. Is the City's plan for repair or disposition in accordance with the Comprehensive Plan and the Zoninq Ordinance? After acquisition, the City would issue a Request for Proposals (RFP) for the sale and rehabilitation of the property. The entire structure would be required to be brought into compliance with all applicable codes. Any code violations present on the exterior premises would also be required to be corrected (such as junk, weeds, fencing, accessory structures, etc.) The RFP would allow a contractor or private individual to purchase and rehabilitate the structure, with the final disposition of the property being as an owner-occupied home. Based on the adjoining property values, this property would be affordable to households at 80% to 100% of area median income. 4. Is the property within an area listed on the National Reqister of Historic Places? No. In conclusion, Staff recommends that the Planning Commission make a determination of spot blight for this property, and that the proposed plan for disposition be forwarded to City Council with a recommendation for approval. CITY OF VIRGINIA BEACH - SPOT BLIGHT Agenda Item 1 Page 4 II AERIAL OF SITE LOCATION CITY OF VIRGINIA BEACH - SPOT BLIGHT Agenda Item 1 Page 5 I,ll CITY OF VIRGINIA BEACH - SPOT BLIGHT Agenda Item 1 Page 6 II CITY OF VIRGINIA BEACH - SPOT BLIGHT Agenda Item 1 Page 7 " 1,1, CITY OF VIRGINIA BEACH - SPOT BLIGHT Agenda Item 1 Page 8 , 1,1 Department of Housing and Neighborhood Preservation Housing Development Division 1MtIt'lllz~ GriN # Ioto ~ $-G.. David W. A~ker"'lI D'NA Property Addr. COD.tnldlOII s~ #ofStDries~ S1nIctveTypllWF .orBedl'OHUl~ YearBuilt~~ YES~' CODdidoDIObeen'" Fair Estimate Sheet l> 1,. f tr;t{ 1-.dL_ .._/' , .--1 ! - "4 ~.~ D as ;;;;;;;---- . '~., 19e-- T.ota!~ost ~:'t!ma~___ Current Assessment ~ (,(/,10 $ lJ 'DO 1171 7t>() ;;If~;:r '977- JtUA taP f/;JII<IK€N~ ~ _n_ _1 CITY OF VIRGINIA BEACH - SPOT BLIGHT Agenda Item 1 Page 9 III ARTICLE VI. HOUSING AND BUILDING MAINTENANCE CODE Page 1 of2 ARTICLE VI. HOUSING AND BUILDING MAINTENANCE CODE Sec. 16-39. Spot blight abatement. (a) The City of Virginia Beach, in accordance with Code of Virginia sections 36-49.1: 1 et seq. may acquire or repair any blighted property, as defined in (b) below, by exercise of the powers of eminent domain provided in title 25.1 of Code of Virginia, and further, shall have the power to hold, clear, repair, manage, or dispose of such property for purposes consistent with this section. In addition, the city may recover the cost of any repair or disposal of such property from the owner, or owners of record at their last known address as contained in the records of the treasurer or the current real estate tax assessment records. (b) "Blighted property" means any individual commercial, industrial, or residential structure or improvement that endangers the public's health, safety, or welfare because the structure or improvement upon the property is dilapidated, deteriorated, or violates minimum health and safety standards, or any structure or improvement previously designated as blighted under the process for determination of "spot blight". (c) The city manager or his designee shall make a preliminary determination that a property is blighted in accordance with this section. The city manager or his designee shall notify the owner, or owners of record as determined in (a) above, specifying the reasons why the property is considered blighted. The owner or owners shall have thirty (30) days from the date the notice is sent within which to respond in writing with a spot blight abatement plan to address the blight within a reasonable time. A spot blight abatement plan is a written plan prepared by the owner or owners of record of the real property to address spot blight. (d) If the owner or owners of record fail to respond within the thirty-day period with a written spot blight abatement plan that is acceptable to the city manager or his designee, the city may (i) request the planning commission to conduct a public hearing and make findings and recommendations that shall be reported to city council concerning the repair or other disposition of the property in question and (ii) in the event a public hearing is scheduled, shall prepare a written spot blight abatement plan for the repair or other disposition of the property. (e) No spot blight abatement plan shall be effective until notice has been sent to the property owner or owners of record as determined in (a) above and an ordinance has been adopted by city council. Not less than three (3) weeks prior to the date of the public hearing before the planning commission, the commission shall provide by regular and certified mail, notice of such hearing to (i) the owner of the blighted property or the agent designated by him for receipt of service of notices concerning the payment of real estate taxes within the locality; (ii) the abutting property owners in each direction, including those property owners immediately across the street or road from the property; and (iii) the representative neighborhood association, if any, for the immediate area. The notice shall include the plan for the intended repair or other disposition of the property. The notice of the public hearing shall be published at least twice, with not less than six (6) days elapsing between the first and second publication in a newspaper published or having general circulation in the locality in which the property is located. The notice also shall be posted on the property. The notice shall specify the time and place of the hearing at which persons affected may appear and present their views, not less than six (6) days nor more than twenty-one (21) days after the second publication. (f) The planning commission, at this public hearing, shall determine whether: (1) The property is blighted; (2) The owner has failed to cure the blight or present a reasonable plan to do so; http://library4.municode.com/default-testJDocView/l 0 122/1/ 1 09/ 115 3/31/2009 CITY OF VIRGINIA BEACH - SPOT BLIGHT Agenda Item 1 Page 10 II ARTICLE VI. HOUSING AND BUILDING MAINTENANCE CODE Page 2 of2 (3) The plan for the repair or other disposition of the property is in accordance with the city's comprehensive plan, and the comprehensive zoning ordinances; and (4) The property is located within an area listed on the National Register of Historic Places. In such instances, the planning commission shall consult with the architectural review board, regarding the proposed repair or other disposition of the property by city council. (g) The planning commission shall report its findings and recommendations concerning the property to city council. City council, upon receipt of such findings and recommendations, may after an advertised public hearing, affirm, modify, or reject the planning commission's findings and recommendations. If the repair or other disposition of the property is approved, the city manager or his designee may carry out the approved plan to repair or acquire and dispose of the property in accordance with the approved plan, the provisions of this section, and applicable law. If the ordinance is adopted by city council, the city shall have a lien on all property so repaired or acquired under an approved spot blight abatement plan to recover the cost of (i) improvements made by the city to bring the blighted property into compliance with applicable building codes and (ii) disposal, if any. The lien authorized by this section shall be filed in the circuit court of the City of Virginia Beach and shall be subordinate to any prior liens of record. City council may recover its costs of repair from the owner or owners of record of the property when the repairs were made at such time as the property is sold or disposed of by such owner or owners. If the property is acquired by the city through eminent domain, the cost of repair may be recovered when City council sells or disposes of the property. In either case, the costs of repair shall be recovered from the proceeds of any such sale. (h) If the blighted property is occupied for personal residential purposes, city council, in approving the spot blight abatement plan, shall not acquire by eminent domain such property if it would result in a displacement of the person or persons living in the premises. The provisions of this subsection shall not apply to acquisitions, under an approved spot blight abatement plan, by the city of property which has been condemned for human habitation for more than one year. In addition, if the city is exercising the powers of eminent domain in accordance with title 25.1 of Code of Virginia, it may provide for temporary relocation of any person living in the blighted property provided the relocation is within the financial means of such person. (i) In lieu of the acquisition of blighted property by the exercise of eminent domain and in lieu of the exercise of other powers granted in subsections (a) through (g), city council by ordinance, may declare any blighted property to constitute a nuisance, and thereupon abate the nuisance pursuant to Code of Virginia section 15.2-900 or section 15.2-1115. Such ordinance shall be adopted only after written notice by certified mail to the owner or owners of the property at the last known address of such owner as shown on the current real estate tax assessment books or current real estate tax assessment records. 0) The provisions of this section shall be cumulative and shall be in addition to any remedies for spot blight abatement that may be authorized by law. (Ord. No. 2613, 9-12-2000; Ord. No. 2963, 11-28-06) http//library4.municode.com/default-test/DocView/l0 122/1/1 09/115 3/31/2009 CITY OF VIRGINIA BEACH - SPOT BLIGHT Agenda Item 1 Page 11 101 Item # 1 City of Virginia Beach Spot Blight Abatement Determination 620 Counselor Square District 4 Bayside April 8, 2009 REGULAR Janice Anderson: The last items are the items that we're going to hear, and as soon as the majority gets out the door, we'll get started on that. Don Horsley is the Secretary of the Planning Commission, but he is out today. So, Gene Crabtree has volunteered to be our Secretary. I believe the first matter to be heard is agenda item 1. That's the application of the City of Virginia Beach for Spot Blight Abatement on property at 620 Counselor Square. Could the applicant come forward? Wells Freed: Good afternoon Madame Chair and members of the Commission, my name is Wells Freed. I'm the Code Enforcement Administrator for the Virginia Beach Department of Housing and Neighborhood Preservation. I'm here today to provide some background on this case. Provided in the written packet is a description of the proposal. This property has been a long term problem property. It was condemned in June 2007 for being open and vacant. And at this time it is considered unsafe, and is starting to become structurally unsound. Since 2007, our department has issued 25 property maintenance notices and three notices for exterior code violations. The property owner has not responded to any of these notices. We have issued summons to the property owner, who currently lives in Pennsylvania, and the summons at this time are outstanding and are unserved. The Police Department has been involved with this case. They have expressed their concern to us regarding the nuisance that this property presents. As you can see from the pictures that we have provided, the front and rear exterior roofing system is failing. It has allowed a large pigeon population to inhabit the property, which is a potential health risk to the neighbors. The interior surfaces of the property are subject to severe water damage and mold infestation. There is also evidence of termite infestation imposing a risk to the structure and to the adjoining units as well. The exterior is subject to continual abatement processes by our department to include the removal of severe poison ivy growth and noxious weeds and grass. At this time, we have exhausted all possible avenues to obtain compliance from the owner. Without prompt intervention to prevent further deterioration, health and safety hazards will become more severe. Therefore, I'm before you today based on the current Spot Blight Abatement Ordinance, and requesting that the Commission make the following determinations. One, that the property is blighted; two, that the owner has failed to cure the blight or present a plan to do so; and three, the plans to repair or dispose of the property is in accordance with City's Comprehensive Plan and Zoning Ordinances. This plan is included in the written package that was provided to you. The final determination is that the property is not located within an area listed on the National Register of Historic Places. So, at this time, I would like for Sharon Prescott to come and discuss the abatement plan and disposition. II Item # 1 Spot Blight Abatement Determination Page 2 Janice Anderson: Thank you. Are there any questions ofMr. Freed at this time? Thank you. Wells Freed: Thank you. Sharon Prescott: Good afternoon Madame Chairman and members of the Commission. My name is Sharon Prescott. I am the Housing Development and Program Administrator for the City's Department of Housing. This property is obviously in need of serious repair. The structure is about 32 years old, which by regulatory standards would be in need of some major work, but because of the neglect, it is in serious need of work. What we are proposing in the disposition plan is that the City would offer this property for sale. And that the buyer of this property would be required to bring the entire structure to code. The construction and repair would be monitored by not only Permits and Inspection but by our department to make sure that the plan that is proffered by whoever buys this property is fully carried out and the structure is fully stored. And we are recommending that the end results of the property can either be owner occupied or for rent. Janice Anderson: Are there any questions of Ms. Prescott? Go ahead. Ronald Ripley: Sharon, the Department of Housing and Neighborhood Preservation, how often have you invoked both his code as far as enforcement in the City of Virginia Beach? Sharon Prescott: This will be the third property that we have brought to the Planning Commission for a declaration of being a spot blight property. There were two, probably about three years ago that went before the Planning Commission and to City Council that were declared blighted. The City acquired the property through a condemnation process and the properties have since been cured of the blight. Ronald Ripley: Would you consider this your very last result in trying to resolve this housing problem with the City? Sharon Prescott: Absolutely. As Mr. Freed said, we have been trying to work with the owner for several years now to try and get them to respond to notices that Code Enforcement has sent out over a period of years. They just absolutely failed to respond to any of our notices to take any action whatsoever to make any improvements or repairs needed to the structure. This is our last resort. Ifwe don't get a Declaration of Spot Blight, then the house will continue to deteriorate. Ronald Ripley: It's a townhouse. In your opinion, could you remove the townhouse and rebuild it or do you have to renovate the townhouse? Sharon Prescott: At this point in time, the structure is still feasible for rehab. Ifwe don't take action now, it could get to the point where you would have to demolish it, which is problematic within a townhouse situation. Ronald Ripley: Thank you. II I Item # 1 Spot Blight Abatement Determination Page 3 Janice Anderson: I just wanted to confirm with you that the owner of the property and your staff has actually talked to her and you know she has actual notice ofthese proceedings. She has signed certified receipts? Sharon Prescott: That is correct. Janice Anderson: Okay. Thank you. Are there any other questions? Thank you. Sharon Prescott: Thank you. Eugene Crabtree: Madame Chairman, we have one speaker in support. Nancy O'Shee. Janice Anderson: Welcome. State your name for the record. Nancy O'Shee: I'm Nancy O'Shee. I do live on Counselor Square. Unfortunately, this has been going on for almost ten years, where it has been abandoned. Not only do we have the problem of the property falling apart but we also have rats coming from this property. We also have water damage where it's going into the house because the runoff is going into the property also. My question is how much longer do you think we're going to have to wait for something to be done to this even if you go ahead and agree to have a spot blight done on this home? Janice Anderson: Maybe I get Ms. Prescott. Sharon or Freed? How long is the process? I know that this goes to Council next month. They will have to vote on it, and then the condemnation time. Bill Macali, do you know how long this takes? Sharon Prescott: It's the combination process that will take some time. Bill Macali: Well, when the owner doesn't appear, it takes a lot less time. Once the Council approves it, we have to go ahead and jump through some procedural hoops in a condemnation case. We need an appraisal. We need to make an offer to the property owner. If the property owner doesn't respond, then we have to file the action. Probably more than anything else, it depends on how quickly the court has an available court date, but I can pretty much assure you all that we will make the court aware of the condition of the property and the affect that it is having on the other homes in the area, and ask for a very quick court date. It could be a matter of several months though, but it all depends on when we can get a court date, but we will do everything that we can to expedite the process. Nancy O'Shee: The other problems that we're having are teenagers and adults that go in the home. There is drug abuse going on in there. There are problems in the community as it is. So, this doesn't help it any at all. And the quicker it could be rectified, we really appreciate it. Janice Anderson: Okay. As probably a suggestion if you contact your local precinct. II Item # 1 Spot Blight Abatement Determination Page 4 Nancy 0' Shee: Oh, we have. Janice Anderson: You have? Okay. Nancy O'Shee: We have many a time. I think they're tired of hearing from us. Janice Anderson: Hopefully, this matter will alleviate the problem for you. Nancy O'Shee: Thank you. Janice Anderson: Thank you. Eugene Crabtree: Madame Chairman, there are no speakers. Janice Anderson: I'll open it up for discussion. Joseph Strange; I have a question for Sharon. Janice Anderson: Sharon? Joseph Strange: When something like this happens in a community, the townhouse community, and it is doing damage to the other neighbor's homes, like the water damage that she said. Is there any avenue for them to get some type of restitution for their expenses to get their property fixed? Sharon Prescott: I believe that would be a civil matter. Joseph Strange: A civil matter? So there is no money that comes out of the money you collect? Sharon Prescott: No. Joseph Strange: Okay. Sharon Prescott: I will say we have learned a lot from the first two spot blights, and once the city acquires the property, we will be able to move quickly to dispose of it, and get it under construction. Joseph Strange: Okay. Thank you. Bill Macali: Mr. Strange? There is a remedy. If the person who is suffering the damage sues the property owner and obtains a judgment, that judgment could be recorded and it would provide a lien on the property, which would be taken care of during the condemnation case. More than that, I can't really say because I don't know how quickly that could be done or anything, but there is that legal avenue that is out there. II Item # 1 Spot Blight Abatement Determination Page 5 Joseph Strange: Yeah. I just think that because ofthe suffering that the neighbors have gone through in this deal if there is some kind of remedy for them, even if is just a little financial help them with their repairs and stuff. I'm sure they would appreciate any help they could get. So, I just wanted to kind of help them out a little bit there. Janice Anderson: Jay? Jay Bernas: Just as a point, I just wanted to voice my concern that I think that $117,000 that I think is in the plan is high, and as it goes through the condemnation process, I understand that the fair market value as the condition of it exists, is what the City actually pays for it, because I think the City would not want to buy this for $117,000. That is just way too much, and that it should be valued in its current condition, and that is what it should be condemned as. My biggest fear is that the taxpayers footing the bill for a lot of this. We shouldn't be rewarding this person for letting it go down hill, and giving her such a high market value for the property. But I understand that should all be taken care of during the condemnation process. But I just wanted to voice my concern that I think that $117,000 is very high. Janice Anderson: Bill? Bill Maca1i: Mr. Bernas, I was going to answer what you mentioned. But as you noted, the condemnation award would not be based upon any presupposition that the repairs would be made. In fact, I would suspect that probably when we handle that condemnation case, we would ask either the judge or the commissioners who sit as the jury to take a look at the property, which is permitted, and that will sure have quite an effect on them in determining the value, which we expect to be considerably less than $117,000. Janice Anderson: Go ahead Dave. David Redmond: Just very briefly and for the record. I want to echo to what Mr. Bernas said. If! were a neighbor of this property, I would be absolutely furious and up all night concerned with what might be going on in there with vermin, and all those other sort of crime problems. Nonetheless, it is not the citizens of Virginia Beach responsibility to pay large amounts of money to someone who has been derelict in the management and ownership of their own property. I would just hope that we go about this in such a way, expeditiously and quickly and frankly, not just in this case but every single place we find it in the city. My concern is that it seems like it is taking a long time to deal with it. And I know that the neighbors probably feel that too, but in such a way that we don't penalize taxpayers, and have people who are irresponsible in the management of their properties, whether they be vacant or occupied, and think, oh well, the City will come in and throw some money at it and fix it, so I don't have too. I don't want to see that occur in this case. It doesn't sound like listening to Mr. Maca1i that it will in this case, but I share Mr. Bernas' view, I think probably about 99.9 percent of the taxpayers view, that we be careful not to view this City's coffers as a limitless way to be able to solve this. We ought to do it in the right way and a smart way, and a way that also protects the taxpayers when we go forward. Thank you. II I Item # 1 Spot Blight Abatement Determination Page 6 Janice Anderson: Thank you Dave. Are there any other questions or comments? Bill Macali: Madame Chairman, what's a little unusual about this is there is an actual resolution for the Commission to consider rather than just the usual grant or denying. So, the motion would be to adopt the resolution as it appears in your agenda. Janice Anderson: Okay. Thank you. Do I have a motion? David Redmond; Madame Chairman, I move that we adopt the resolution as it appears in our agenda. Janice Anderson: I have a motion by Dave Redmond and a second by Ron Ripley. AYE 10 NAY 0 ABSO ANDERSON AYE BERNAS AYE CRABTREE AYE HENLEY AYE HORSLEY KA TSIAS AYE LIV AS AYE REDMOND AYE RIPLEY AYE RUSSO AYE STRANGE AYE ABSENT 1 ABSENT Ed Weeden: By a vote of 10-0, the Board has adopted the resolution as indicated in the agenda for the spot blight abatement at 620 Counselor Square. Janice Anderson: Thank you. II I CITY OF VIRGINIA BEACH - SPOT BLIGHT M F-8 C . .~ T 7." " " B h Moo N~~ to Scol.. ttv 01 ".. tr1!tnta eac j J J7l.J1 \{l:Zl'1 II fll I \ I I ..1/ ~ 0 ........... ~~ L I =-\W J) GOVFJ~.NORS WAY I 1. I" ~- 1 ~-+tl-:tt'1 'c l~rr \.. I. I.l\P;:::1 \-TW~ riI r6 _. ~ \ 1 1\ h ,-++-1- L-/ m.. --rI"" - TlI ~/ IICl ~ WALK ~t:: =r: ..' ~ - I~~ ~ ~ ~Ii\~ H ~S's O C Q' ~r -<. n_''\ 1\ \U Jl.., ~2 ell- -...... W ~O ] c;- ~ KI 1 - '-' '" ~lt,., ~,~ !!'>;:~~~v ~ n: . ~ ht \1 D~r-- ~..,. ~~ f)~'" 7:0 cc ~ ~ L J ~~ l.wseJ:~ -J ~ f:1;:):: J~ ()s1! ~ l)5: ~ ~ Ir M ~ '7""':-:- ~ ) ~~ ff~J. jt 0,/ t--~ ~~ nj~'_-:lr~~~T;$.:~7fl ~)P~1L~ ~ '~r ~>.'?'-0;cytti1:J r 0", ~d~t{or '~J r ~ ~~- ~c:~o O~~ ~il" (OCJQ~J."~ ~ ~J I J /~ ~~ ~'~!fGP//D))~ Spot Blight Relevant Information: " Rose Hall District · This property is the subject of possible acquisition under the "spot blight authority" provided for under Section 16-39 of the City Code. It is being recommended for acquisition due to its existing condition and its continuing status as a 'problem property.' · Under the process required by the City Code, both the Planning Commission and the City Council must hold public hearings, determine that the property meets the definition of blight, and that the owner has failed to remedy or present a plan to remedy the blight. Evaluation and Recommendation: " Planning Staff recommended approval · Planning Commission recommends approval (10-0). Consent agenda 1,1 i - 42 - Item V-K.7. ORDINANCES/RESOLUTIONS ITEM # 58864 Upon motion by Vice Mayor Jones, seconded by Councilman DeSteph. City Council ADOPTED: Ordinance to A UTHORIZE the acquisition of blighted property by eminent domain at 620 Counselor Square for the purpose of rehabilitation to a qualified builder, developer or other entity and APPROPRIATE $82, 778 neededfor acquisition. Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph. Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None May 26, 2009 I, 1,1 I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 AN ORDINANCE AUTHORIZING THE ACQUISITION OF PROPERTY LOCATED AT 620 COUNSELOR SQUARE AND APPROPRIATING $82,778 TO CAPITAL IMPROVEMENT PROJECT #9-336 WHEREAS, on April 8, 2009, in accordance with Virginia Code Section 936- 49.1:1, and following a public hearing, the Virginia Beach Planning Commission made the following findings regarding the property located at 620 Counselor Square, in the City of Virginia Beach (GPIN 1486-26-9112) (the "Property"): 1. That the Property is blighted, within the meaning of Virginia Code Section 936-49; 2. That the owner of the Property has failed to cure the blight or present a reasonable plan to do so; 3. That the plan for the repair or other disposition of the Property is in accordance with the comprehensive Plan, City Zoning Ordinance and other applicable land use regulations; and 4. That the Property is not located within an area listed on the National Register of Historic Places; and WHEREAS, the Planning Commission recommended that the City Council approve the plan presented by the Department of Housing and Neighborhood Preservation for the repair or other disposition of the Property, to-wit: that the Property should be acquired by the City of Virginia Beach through eminent domain and then resold. The structure should be brought into code compliance by the new owner; as either owner occupied or resold for rental as a quality, affordable housing unit; and WHEREAS, the Property has been condemned for human habitation for a period in excess of one (1) year; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: FIRST That the City Council hereby affirms the aforesaid findings and recommendations of the Planning Commission; and SECOND That the City Council hereby finds that the Property should be acquired by the City for the preservation of the safety, health, peace, good order, comfort, convenience " II 47 and welfare of the people of the City of Virginia Beach and other related public 48 purposes, and hereby authorizes the acquisition of the Property in fee simple by 49 purchase or condemnation pursuant to Section 936.49.1: 1 and Chapter 2 (925.1-200 et. 50 seq.) of Title 25.1 of the Virginia Code; and 51 52 THIRD 53 54 That the City Manager is hereby authorized to make, or cause to be made on 55 behalf of the City of Virginia Beach, to the extent that funds are available, a reasonable 56 offer for the purchase of the Property to the owners or persons having an interest in the 57 Properties. If such offer is refused, the City Attorney is hereby authorized to institute 58 and prosecute proceedings to condemn the Property; and 59 60 FOURTH 61 62 That upon acquisition of the Property, the City shall resell the Property for 63 purposes of rehabilitation to a qualified builder, developer or other entity, with 64 appropriate provisions in any such contract of sale to ensure that the property will be 65 timely rehabilitated or reconstructed and thereafter sold to a qualified owner-occupant or 66 as a rental property; and 67 68 FIFTH 69 70 That $82,778 is hereby appropriated to Capital Improvement Project #9-336 71 (Spot Blight Abatement), and estimated revenue from Sale of Property-Spot Blight is 72 hereby increased by $82,778. 73 74 Adopted by the Council of the City of Virginia Beach, Virginia, on the 26th day 75 of May , 2009. 76 77 Requires an affirmative vote by a majority of all the members of City Council. 78 APPROVED AS TO CONTENT: of Housing and od PreseNation APPROVED AS TO CONTENT: B~f\(>>Q ~ Management SeNices APPROVED AS TO LEGAL St0IC,IENCY: City Attorney CA 11 058/R-6/May 15, 2009 ,.....~:;JIit.".~.~.....-It; :1""rNJ~~A:~"k~"'t.., \!, .....~-"'f.4.....^'cf. II I CITY OF VIRGINIA BEACH Spot Blight Report 620 Counselor Square City Council - OS/26/2009 Staff: Andrew Friedman, Dept of Housing and Neighborhood Preservation The following report is provided as an attachment to the City Council agenda request for this item. LOCATION: GPIN AND OWNER: ~mmmm~m1l1;1l1i~j1j~j~;~;tmm~;mmmmm;tmm~;tt~tl~tl~1~1~l :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::i:;:~:~:~:~:~:l:~:l:l:l:j:j:;:j:;:j:;:;:;:;:;:;:m:;:i:;:;:i:i:;:;:;:;:i:;:;;;~t~~:~~~~1~~j~jj~1~ Location and General Information ..::;::t 620 Counselor Square tellJ.1;J;"0"?'::':~'5=;~~'~.!';' ( ,..... · ......'...... ........ .' ,. . . , ... ... ........... . ....'...... ..... ... . .......'.........j.......................... :;".fi \;"t:;.,~; '. "",,, ' :;,i:7()' "'{Ii' j~~t~~,1~jT<i;;'~I'I~t~)I~~i c.... ,.~ .....38].:.".:,: ~..c.. "". . ..~I",,,:::.,,. , .C'C"'~ .,: 14862691120000 Marlena Evans . - ...... . . ... ... ..... ..., .. . ..' .. ..... ., . . '. . . ... ,.. .. ... ... . .. ... .... ... .......... CITY OF VIR~J.NIABE~CH SP9~alight R~p'ort.. . .... ..c'e~~~..1 Ii 1,1' COUNCIL ELECTION DISTRICT: District 3 SITE SIZE: 2,416.03 square feet EXISTING LAND USE: Single-family residential/1 03 Townhouse SURROUNDING North: . Single-family residential! A 12 Residential District LAND USE AND South: . Single-family residential! A 12 Residential District ZONING: East: . Single-family residential! A 12 Residential District West: . Single-family residential! A 12 Residential District The Windsor Oaks West Townhouse neighborhood is bordered by Windsor Oaks Blvd to the West, Holland Road to the South and Single Family R-75 Residential District to North and East. AICUZ: N!A Key Facts - 620 Counselor Square Date Determined Unsafe June 26, 2007 Number of Code Enforcement Notices 28 Issued Assessed Value $138,800 Land Value $62,700 Building Value $76,100 Appraised Value Based on Current $83,000 Condition Delinquent Taxes $4,302 Liens Due $3,976 Estimated Repairs Needed $42,000 (per third-party repair estimate) "," - '." ......:. ','-:.- '.':-.': . . ... ....... ....... . CITY OF VI~~JNIAB~CH Sp:9~Blight ~~port 'He~g~g II 1'1 'RR~_S;;;~. This property is the subject of possible acquisition under the "spot blight authority," Section 16-39 of the City Code. It is being recommended for acquisition due to its condition and long-term problem property status. Under the process required by the City Code, both the Planning Commission and the City Council must hold public hearings, determine that the property meets the definition of blight and that the owner has failed to remedy or present a plan to remedy the blight. This property was placarded as unsafe on June 26, 2007, as it was vacanU open and the roofing system was collapsing. Since January 2002, the Department of Housing and Neighborhood Preservation (DHNP) I Code Enforcement Division has issued 28 notices of violation, including 25 property maintenance notices and 3 notices for exterior code violations, none of which the owner has responded to. Therefore, DHNP/Code Enforcement has been maintaining the exterior premises. The initial notice in the spot blight process was issued on January 6, 2009, notifying the property owner that they must present a plan to correct blighted conditions within thirty days. To date, there has been no response from the owner to this notice. ~m;m~~;j;j~j;j;~;1;1;mmmmmmm~mm~~~m~~m~1i~I~~~;~t;m1: 1Mm~~1;1~ .;.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.;.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.;.:.:.:.:.:.:.:.:.:.:.:.:.;.:.;.:.:.:.:.:.:.:.:*:;:;:;:;:;:;:;:;:;:;:;:;:::;:;:;:::::::;:;:;:;:;:::;:;:;:;:;:;:::;::::::::::::::::::::::::::::::: '.:...:.:.:.:.:.:.: Major Issues "::::"m, Plan for Use of Property - The property should be acquired by the city. It is recommended that the property then be declared excess property and offered for sale, with specified rehabilitation requirements to bring the property into code compliance as part of the sales agreement. Once fully rehabilitated by the new owner, the property could be owner occupied or resold without restriction for either owner occupancy or rental. DHNP will monitor the rehabilitation to ensure the property is brought into full code compliance. Cost and Fundina - Our goal for this action is to recover all costs from the proceeds of the resale of the property to a private owner. . .. .. .-, " . ... . " . . .. .. . . CITY OF VIR$'NIABg~CHH Sp~~alight Report. .. ',R~g~::.3 ..' .... .... .. .. .......... 1,1 III', ,--~ Total costs to the City will include acquisition, advertising, legal and appraisal costs, and possible short term holding costs. The following charts detail the costs and the funding requested to carry out this action. Item Advertising, legal, appraisal and holding costs Acquisition Cost Contingency for unanticipated expenses Delinquent Taxes Liens Due Total Project Cost Item Current Spot Blight CIP balance Appropriation requested Total Requested Funding Costs Amount Explanation $2,000 Third-party appraisal based on $83,000 "AS-IS" condition. $2,500 $4,302 $3,976 $95,778 Funding Amount Explanation This amount is unencumbered and can be applied to this $13,000 project once authorized $82,778 $95,778 Use of Disposition Proceeds All funds from the sale of the property will be used to reimburse the Spot Blight CIP account. The balance in this account can then be applied to future actions, or can be transferred to the general fund, depending on future needs and circumstances. .. ... . . . .".. . . . . n.. .. . .. . .. .... . . . . ........... :-~.. .... '",. .: ..".;.. '.";:.' . . '... '. .' . '.' " .."." ,.;. . .. .... . . . '. ... "C'.,' '.'. ,- ,....... ".. .. ..". . .... ... ',' ..' . ',' ....... . -.. ......, .......... CITY OF VIR~lNIABt::~CH Sp~tali9ht R~PQrt ." . '/Page 4 .... . '" . . - .". .....;.: ' '- ;~: : : ;'.:. . . I 1,1 :1 1III """''''''''c;~p;~~ The Comprehensive Plan recognizes this site and the surrounding area as a Primary Residential Area. The policies for this area recognize the need to preserve and protect the character and aesthetic quality of neighborhoods. Planning Commission Action The Planning Commission held a public hearing on April 8, 2009 and made the following determinations: 1. That the property is bliqhted. The property meets the criteria for blight as outlined in the Spot Blight Ordinance adopted by City Council as noted below. . This property has been vacant for over seven years . This property has been the subject of 28 code enforcement notices in the past seven years . The property is in poor condition and beginning to affect adjacent properties. The roofing system is compromised and the property is an eyesore to the neighborhood. The owners of this property have consistently failed to maintain the property. . The owners of this property are in arrears in their taxes and owe $3,976.51 in liens to the Department of Housing and Neighborhood Preservation. 2. That the owner has failed to cure the bliqht and failed to present a reasonable plan to do so. The property owner received notice of the Spot Blight Abatement on January 14, 2009. The notice stated that they must present a plan to correct blighted conditions within thirty days. To date, there has been no response from the owner on this notice. 3. That the City's plan for repair or disposition is in accordance with the Comprehensive Plan and the Zoninq Ordinance. After acquisition the city would issue a Request for Proposal for the sale and rehabilitation of the property. The entire structure would be required to be brought into compliance with all applicable codes. Any code violations present on the exterior premises would also be required to be corrected (junk, weeds, fencing, accessory structures, etc.) The RFP would allow a contractor or private individual to purchase and rehabilitate, with the final disposition of the property being an owner occupied home or resold as a for owner occupancy or rental. Based on the adjoining property values, this property would be affordable to households at 80 to 100% of area median income. 4. That the property is NOT located within an area listed on the National Reqister of Historic Places. . .. .. ..... ... ..' -. ..... . .. ... .. . -... ,-. .. ... '. . .. . '. . . ... ...... .... CITY OF VIf{GJNIAB~CH Sp~~Blight R~p.ort . .page..5. Iii III The Planning Commission made the determination of spot blight on this property and recommended that the proposed plan for disposition be adopted by City Council. Attachments: Photographs of the subject property follow . . . .. . ... .... '.,... . . '.' . ". . . .. . . .. .. .'. ...... . : ':. '-:'. ..' . .' ........;. ".' ...," . . ..' ., .. .. ... .. '.. .. ."'.'. ...... . .. '. '. .'~ ..... .. ;.; :.,' '.- .... :;;;;:: '.' ':-" .. .';: ..:,'.:.:.-.: ':.,.: ..... .::..:':."/:::':...:.:.::;:: ; :.' , CITY OF VIRGINIA BJ;,ACH SpptBlight R~pqrt . 'R~gE?9 . I" 1,1 Exhibits . .. . .. H ... ". .. .. . . . . .... . . . . ... . . . .. . .' .... .. ..... . .. .... .. . ... .... '.' . . . . . ..... .. .- . . ... .. ..... . '. . .. .... . .. ......... . .. .... . . . .' .. ...... '.... .. . ...n. . .. .... 'P' 0' .' .... . . --. ,. ..... .. . .. .. '..... .. . . .. . '.... .. . ... .. . .. . -. . .... .. . ........ CITY OF VIR~INIABE~CH Sp~~alight ~~port. R$g~7 .... ,i III III ,I ... . . . .. -'.. . . .. . . .. .. ." .. ... . . . . ... . . . . . .. '. . . . . .. . '. . . .... . . .... .. . . .. _n .. n. , . . .. '. . .... . .. ....... . . . - .... . ". .. .... . . ..'. _n. O' .. .... . . .'. .. ..... n._ . .' ., ....... .. ..". . . .... ... . ... .. '. .. '. .... '. ...... ........ CITY OF Vlg~JNIA BJ;8CH Spot Blight f{~pqrt Ri)9~:~. . II ...........,."...,.. .................. ........'.'.',','..,'.'......."... ..................-.---...... .................................. ............,.......,........................................... .. ............................ ..... .."H....................... .................................... ...................................... ...................................... .... .. ......................... .... ....."....... .........",.""....... ................."..... ...........,...",...... ......"............. . . . . . . . . ... ... ..................... ""................. ..................... ..",................ ,,,................. ,..."."........ . ... .. ..... .... . . . .... . . . '. .. .. ,-.... .. ' ... "H .. ... .... .. ,....., ... . CITY OF VIR~JNIAB~~CH Spot Blight R~port . .R;3g~>~ i, 1,1,1 ~;;:irl:.""~"':::..I':"''''''~I'''''':''''''':' ~:::::: : :0:':':':. _:. . '" I ,~:~; ... :111 "::::::::\?",'}7;~~"""""'~:'~ ........... ..:. . ." .. ...., ...- . .. .. .. ...... .. ...". ....,.. .. ... ... , . .. ... ..., . . ... ....... ....... ... . . CITY OF VIR~JNIA B~CH SpptBlight R~p.ort ." .' '.:., ..P9Q~.to. . III I . ." " ..... ".. . . '... '. ,... .. . . . . '.... .. . .. . .... . .. .... . 'H . ....... .. ...._... CITY OF VI~~INIABEhiCH Sp~talight R~port. ." .. ~9ij~:::1~ I, IIII .. .. . .. . . . .... ,... . d . . ,_ . . .. .. ... .'.. .~ .. . ..' . .. .. . ",". . .. , .. . . .. .... .- .. . .... .. .. .... . . . .. ... . . ........... . .... . . ... . .. ..... '.." ".. . . ..... .. . ,-. ....... ... ." ,,- ,... .- . , . .,', ,',' .... ...- . . .. .. . ..... .. .. .. '. . '" . . ... .... ... . .. .. .... . .. ....... .. . ... CITY OF VI~~JNIABE~CH SP9tBlight R~p'ort ." . "Pag"e12 .- -:.-.:.'....-:...;..,'... I111 . '" ". ..... ..... . -.. ..... .. . . -. , ,-,. . . ' . . . . .. ... .... . . ..... .. . CITY OF VIR~JNIA BEACH. Spot 'Blight R~port. . P9~~:1.:~ . Illi ::::::::~:~~~~~:::::::t'l(:;:;:;:;:;:W::Jll;~lii~*ii:if::::::::~:::;;:::::'~:;;',;;;;;;;;::;~:;.:i;' ... n... . . . . . . . .... . .. .. .. .. . . . . .. . ." . . . .' .. . . . ... .... .. .. .. . ... . " . . . . .... . . . '.. . .. .' , ... . . ' . . . . . '.' .. . ..... . . .. . . P' . . . .. ." ..... . . . ... . . . ., . . .. ... .. . .... .. .. .....n...... .. .' .... . . .. .... .... . .. 0.' .... '" . .,', ,',', .....' .... . . .. . .... .. . . . ,"... ,-, n .. . __ ._.. . .. . -. ..~ .... ... ......... ... CITY OF VI.RG'NIABE:~CH Spp~Blight R~port ." 'Pag~1~. III - 43 - Item V-K.8. ORDINANCES/RESOLUTIONS ITEM # 58865 Upon motion by Vice Mayor Jones, seconded by Councilman DeSteph, City Council ADOPTED: Ordinance to AUTHORIZE temporary encroachments into a portion of City right-ofway for JAMES M. ARNHOLD at 4332 Sandy Bay Drive to construct and maintain three (3) parking areas and two (2) four (4 ") inch conduits. DISTRICT 4 - BAYSIDE The following conditions shall be required: 1. The temporary encroachment will be constructed and maintained in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach and in accordance with the City's specifications. 2. Nothing herein shall prohibit the City from immediately removing, or ordering the Grantee to remove, all or any part of the Temporary Encroachmentfrom the Encroachment Area in the event of an emergency or public necessity and Grantee shall bear all costs and expenses of such removal. 3. It is further expressly understood and agreed that the Temporary Encroachment herein authorized terminates upon notice by the City to the Grantee and that within thirty (30) days after the notice is given the Temporary Encroachment must be removedfrom the Encroachment Area by the Grantee and that the Grantee will bear all costs and expenses of such removal. 4. It is further expressly understood and agreed that the Grantee shall indemnify~ fH'IfI-hold harmless and delend the City, its agents and employees from and against all claims, damages, losses and expenses, including reasonable attorney's fees, in case it shall be necessary to file or defend an action arising out of the construction, location or existence of the Temporary Encroachment. 5. It is further expressly understood and agreed that nothing herein contained shall be construed to enlarge the permission and authority to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified herein, nor to permit the maintenance and construction of any encroachment by anyone other than the Grantee. 6. It is further expressly understood and agreed that the Grantee agrees to maintain the Temporary Encroachment so as not to become unsightly or a hazard. 7. It isfurther expressZv understood and agreed that the Grantee must submit and have approved a Traffic Control Plan before commencing work in the Encroachment Area. 8, It isfurther expressly understood and agreed that the Grantee agrees that no open cut of the public roadway will be allowed, except under extreme circumstances. Requests for exceptions must be submitted to the Highway Operations Division, Department of Public Works, for final approval. 9. It is further expressly understood and agreed that the Grantee must obtain a permit from the Office of the Planning Department prior to commencing any construction within the Encroachment Area. ^;("" '"J';' '"Jfllln III I - 44 - Item V-K.8. ORDINANCES/RESOLUTIONS ITEM # 58865 (Continued) 10. It is further expressly understood and agreed that prior to issuance of a right-of way/utility easement permit, the Grantee must post a bond or other security in the amount of two times their engineer's cost estimate to the Office of Planning Department to guard against damage to City property or facilities during construction. 11. It is further expressly understood and agreed that the Grantee shall not erect signage of any type indicating that the said parking areas as shown on the aforesaid f.exhibit (the "Parking Spaces ") are private parking, nor shall the Grantee prohibit, in any way, the usage of those parking spaces by the general public, notwithstanding the fact that portions of such parking spaces are on private property. Furthermore, the Grantee must allow parking by the members of the general public on any parking area where ~pavers are installed, except for that portion of the Grantee's driveway necessary to gain access to the garage. For the purposes of this Agreement, attempts to prohibit the public from parking within the parking spaces created by the Temporary Encroachment shall include verbal requests/statements to members of the public not to park in the parking spaces, obstructing the parking spaces with physical barriers, posting signs stating "no parking", "no trespassing", "towing enforced". or similar phrases, askingfor vehicles to be towed from such parking spaces or any other action the reasonable effect of which is to prevent or dissuade members of the general public from parking in the parking spaces. 12. It is further expressly understood and agreed that the Grantee must obtain and keep in force all- risk property insurance and general liability or such insurance as is deemed necessary by the City and all insurance policies must name the City as additional named insured or loss payee, as applicable. The Grantee also agrees to carry comprehensive general liability insurance in an amount not less than $500,000.00, combined single limits of such insurance policy or policies. The Grantee will provide endorsements providing at least thirty (30) days written notice to the City prior to the cancellation or termination oj. or material change to, any of the insurance policies. The Grantee assumes all responsibilities and liabilities, vested or contingent, with relation to the construction, location and/or existence of the Temporary Encroachment. 13. It is further expressly understood and agreed that the Temporary Encroachment must conform to the minimum setback requirements as established by the City. 14. It is further expressly understood and agreed that the Grantee must submit for review and approval a survey of the Encroachment Area, certified by a registered professional engineer or a licensed land surveyor. and/or "as built" plans of the Temporary Encroachment sealed by a registered professional engineer. if required by either the City Engineer's Office or the Engineering Division of the Public Utilities Department. 15. It is further expressly understood and agreed that the City. upon revocation of such authority and permission so granted, may remove the Temporary Encroachment and charge the cost thereof to the Grantee, and collect the cost in any manner provided by law for the collection of local or state taxes; may require the Grantee to remove the Temporary Encroachment and pending such removal, the City may charge the Granteefor the use of the Encroachment Area. the equivalent of what would be the real property tax upon the land so occupied if it were owned by the Grantee and ffsuch removal shall not be made within the time ordered hereinabove by this Agreement, the City may impose a penalty in the sum of One Hundred Dollars ($100,00) per day for each and eve,:v day that the Temporary Encroachment is allowed to continue thereafter and may collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. - 45 - Item V-K.8. ORDINANCES/RESOLUTIONS ITEM # 58865 (Continued) Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones. Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None II I May 26, 2009 III i 1 Requested by Department of Public Works 2 3 AN ORDINANCE TO AUTHORIZE 4 TEMPORARY ENCROACHMENTS 5 INTO A PORTION OF CITY RIGHT OF 6 WAY KNOWN AS SANDY BAY DRIVE 7 FOR JAMES M. ARNHOLD 8 9 WHEREAS, JAMES M. ARNHOLD desires to install, construct and maintain 10 three (3) parking areas designed with pavers, stone paving, landscaping, piping and 11 yard inlets, and two (2) 4" conduits within a portion of the City's right of way of Sandy 12 Bay Drive, and located adjacent to his property located at 4332 Sandy Bay Drive, in the 13 City of Virginia Beach, Virginia. 14 15 WHEREAS, City Council is authorized pursuant to SS 15.2-2009 and 15.2-2107, 16 Code of Virginia, 1950, as amended, to authorize temporary encroachments upon the 1 7 City's right of way subject to such terms and conditions as Council may prescribe. 18 19 NOW, THEREFORE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 20 VIRGINIA BEACH, VIRGINIA: 21 That pursuant to the authority and to the extent thereof contained in SS 15.2- 22 2009 and 15.2-2107, Code of Virginia, 1950, as amended, JAMES M. ARNHOLD, his 23 heirs, assigns and successors in title are authorized to construct and maintain 24 temporary encroachments for three (3) parking areas designed with pavers, stone 25 paving, landscaping, piping and yard inlets, and two (2) 4" conduits into a portion of the 26 City's right of way as shown on those three (3) maps collectively marked Exhibit "A" and 27 entitled: "EXHIBIT "A", SHOWING ENCROACHMENTS INTO THE RIGHT-OF-WAY 28 OF SANDY BAY DRIVE FOR LOT 48, BA YLAKE BEACH" a copy of which is on file in 29 the Department of Public Works and to which reference is made for a more particular 30 description; and 31 32 BE IT FURTHER ORDAINED, that the temporary encroachments are expressly 33 subject to those terms, conditions and criteria contained in the Agreement between the 34 City of Virginia Beach and JAMES M. ARNHOLD, (the "Agreement"), which is attached 35 hereto and incorporated by reference; and 36 37 BE IT FURTHER ORDAINED, that the City Manager or his authorized designee 38 is hereby authorized to execute the Agreement; and 39 40 BE IT FURTHER ORDAINED, that this Ordinance shall not be in effect until such 41 time as JAMES M. ARNHOLD and the City Manager or his authorized designee 42 execute the Agreement. 43 44 Adopted by the Council of the City of Virginia Beach, Virginia, on the 26th day 45 of May ,2009. 1 CA-10991 V:lapplicalionslcilylawprodlcycom32lWpdocslD004lP004100011331.DOC R-1 PREPARED: 04/22/2009 APPROVED AS TO CONTENTS arm~ c. P ic Works, Real Estate III I APPROVED AS TO LEGAL SUFFICIENCY AND FORM (~:LJk~ Nell L. Ford, Special Counsel for the City Attorney 2 PREPARED BY VIRGINIA BEACH CITY ATTORNEY'S OFFICE (BOX 31) EXEMPTED FROM RECORDATION TAXES UNDER SECTION 58.1-811(C) (4) THIS AGREEMENT, made this 1st day of April, 2009, by and between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation of the Commonwealth of Virginia, Grantor, "City", and JAMES M. ARNHOLD, HIS HEIRS, ASSIGNS AND SUCCESSORS IN TITLE, "Grantee". WIT N E SSE T H: That, WHEREAS, the Grantee is the owner of that certain lot, tract, or parcel of land designated and described as "Lot 48", as shown on that certain plat entitled: "Baylake Beach" and said plat is recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Map Book 41, at page 31, and being further designated, known, and described as 4332 Sandy Bay Drive, Virginia Beach, Virginia 23455; WHEREAS, it is proposed by the Grantee to construct and maintain 3 parking areas designed with pavers, stone paving, landscaping, piping and yard inlets, and 2 4" conduits, collectively, the "Temporary Encroachment", in the City of Virginia Beach; WHEREAS, in constructing and maintaining the Temporary Encroachment, it is necessary that the Grantee encroach into a portion of an existing City right of way known as Sandy Bay Drive, the "Encroachment Area"; and WHEREAS, the Grantee has requested that the City permit the Temporary Encroachment within the Encroachment Area. GPIN: (CITY RIGHT OF WAY - NO GPIN REQUIRED OR ASSIGNED) 1570.81.8343.0000 NOW, THEREFORE, for and in consideration of the premises and of the benefits accruing or to accrue to the Grantee and for the further consideration of One Dollar ($1.00), in hand paid to the City, receipt of which is hereby acknowledged, the City hereby grants to the Grantee permission to use the Encroachment Area for the purpose of constructing and maintaining the Temporary Encroachment. It is expressly understood and agreed that the Temporary Encroachment will be constructed and maintained in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach, and in accordance with the City's specifications and approval and is more particularly described as follows, to wit: A Temporary Encroachment into the Encroachment Area as shown on that certain plat, consisting of three (3) sheets entitled: "EXHIBIT "An, SHOWING ENCROACHMENTS INTO THE RIGHT-OF-WAY OF SANDY BAY DRIVE FOR LOT 48, BA YLAKE BEACH" copies of which are attached hereto collectively as Exhibit "A" and to which reference is made for a more particular description. Providing however, nothing herein shall prohibit the City from immediately removing, or ordering the Grantee to remove, all or any part of the Temporary Encroachment from the Encroachment Area in the event of an emergency or public necessity, and Grantee shall bear all costs and expenses of such removal. It is further expressly understood and agreed that the Temporary Encroachment herein authorized terminates upon notice by the City to the Grantee, and that within thirty (30) days after the notice is given, the Temporary Encroachment must be removed from the Encroachment Area by the Grantee; and that the Grantee will bear all costs and expenses of such removal. It is further expressly understood and agreed that the Grantee shall indemnify, hold harmless, and defend the City, its agents and employees, from and against .all claims, 2 damages, losses and expenses, including reasonable attorney's fees, in case it shall be necessary to file or defend an action arising out of the construction, location or existence of the Temporary Encroachment. It is further expressly understood and agreed that nothing herein contained shall be construed to enlarge the permission and authority to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified herein, nor to permit the maintenance and construction of any encroachment by anyone other than the Grantee. It is further expressly understood and agreed that the Grantee agrees to maintain the Temporary Encroachment so as not to become unsightly or a hazard. It is further expressly understood and agreed that the Grantee must submit and have approved a traffic control plan before commencing work in the Encroachment Area. It is further expressly understood and agreed that the Grantee agrees that no open cut of the public roadway will be allowed except under extreme circumstances. Requests for exceptions must be submitted to the Highway Operations Division, Department of Public Works, for final approval. It is further expressly understood and agreed that the Grantee must obtain a permit from the Office of Planning Department prior to commencing any construction within the Encroachment Area. It is further expressly understood and agreed that prior to issuance of a right of way/utility easement permit, the Grantee must post a bond or other security, in the amount of two times their engineer's cost estimate, to the Office of Planning Department to guard against damage to City property or facilities during construction. 3 III I It is further expressly understood and agreed that the Grantee shall not erect signage of any type indicating that the said parking areas as shown on the aforesaid Exhibit (the "Parking Spaces") are private parking, nor shall the Grantee prohibit in any way the usage of those Parking Spaces by the general public, notwithstanding the fact that portions of such Parking Spaces are on private property. Furthermore, the Grantee must allow parking by the members of the general public on any parking area where pavers are installed, except for that portion of the Grantee's driveway necessary to gain access to the garage. For the purposes of this Agreement, attempts to prohibit the public from parking within the Parking Spaces created by the Temporary Encroachment shall include verbal requests/statements to members of the public not to park in the Parking Spaces, obstructing the Parking Spaces with physical barriers, posting signs stating "no parking", "no trespassing", "towing enforced", or similar phrases, asking for vehicles to be towed from such Parking Spaces, or any other action the reasonable effect of which is to prevent or dissuade members of the general public from parking in the Parking Spaces. It is further expressly understood and agreed that the Grantee must obtain and keep in force all-risk property insurance and general liability or such insurance as is deemed necessary by the City, and all insurance policies must name the City as additional named insured or loss payee, as applicable. The Grantee also agrees to carry comprehensive general liability insurance in an amount not less than $500,000.00, combined single limits of such insurance policy or policies. The Grantee will provide endorsements providing at least thirty (30) days written notice to the City prior to the cancellation or termination of, or material change to, any of the insurance policies. The Grantee assumes all responsibilities and liabilities, vested or contingent, with relation to the construction, location, and/or existence of the Temporary Encroachment. 4 It is further expressly understood and agreed that the Temporary Encroachment must conform to the minimum setbacks requirements, as established by the City. It is further expressly understood and agreed that the Grantee must submit for review and approval, a survey of the Encroachment Area, certified by a registered professional engineer or a licensed land surveyor, and/or lias built" plans of the Temporary Encroachment sealed by a registered professional engineer, if required by either the City Engineer's Office or the Engineering Division of the Public Utilities Department. It is further expressly understood and agreed that the City, upon revocation of such authority and permission so granted, may remove the Temporary Encroachment and charge the cost thereof to the Grantee, and collect the cost in any manner provided by law for the collection of local or state taxes; may require the Grantee to remove the Temporary Encroachment; and pending such removal, the City may charge the Grantee for the use of the Encroachment Area, the equivalent of what would be the real property tax upon the land so occupied if it were owned by the Grantee; and if such removal shall not be made within the time ordered hereinabove by this Agreement, the City may impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that the Temporary Encroachment is allowed to continue thereafter, and may collect such compensation and penalties in any manner provided by law for the collection of local ot state taxes. IN WITNESS WHEREOF, JAMES M. ARNHOLD, the said Grantee, has caused this Agreement to be executed by his signature. Further, that the City of Virginia Beach has caused this Agreement to be executed in its name and on its behalf by its City Manager and its seal be hereunto affixed and attested by its City Clerk. 5 III I CITY OF VIRGINIA BEACH By (SEAL) City Manager/Authorized Designee of the City Manager STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this day of , 2009, by , CITY MANAGER/AUTHORIZED DESIGNEE OF THE CITY MANAGER OF THE CITY OF VIRGINIA BEACH, VIRGINIA, on its behalf. He/She is personally known to me. (SEAL) Notary Public Notary Registration Number: My Commission Expires: (SEAL) ATTEST: City Clerk/Authorized Designee of the City Clerk STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this day of , 2009, by , CITY CLERK/AUTHORIZED DESIGNEE OF THE CITY CLERK OF THE CITY OF VIRGINIA BEACH, VIRGINIA, on its behalf. She is personally known to me. (SEAL) Notary Public Notary Registration Number: My Commission Expires: 6 "I I TE OF VIRGINIA CITY VIRGINIA BEACH, to-wit: VIRGINIA BEACH. oing instrument was acknowledged before me t . day of CITY OF Public STATE OF Yi Ie-'t iN i 4 13. CITY/COUNTY OF YiR.1iAJ14 ~lt!:J/tO-Wit: 'r The foregoing instrument was acknowledged before me this / $ day of f}f~iL , 2009, by JAMES M. ARNHOLD. ~!!ic~~ ~ ,. Notary Pu c ? Notary Registration Number: 3 ~ 31~7 My Commission Expires: FE' /j ;(; ( c20 II BETTY CJENKINS NOTARY PUBLIC Commonwealth of Virginia Reg. #323757 My Commission Expires Feb,28, 2011 (REMAINDER OF PAGE INTENTIONALLY LEFT BLANK) 7 APPROVED AS TO CONTENTS APPROVED AS TO LEGAL SUFFICIENCY AND FORM era-- c ~ 51 NATURE rID I(('A) ('side. DEPARTMENT l,X) rrwJuJ ",\"Cl,,~(l~ X:\Projects\Encroachments\Applicants\Arnhold, James M\Agreement Encroachment.doc 8 SEE SHEET 2 FOR DIMENSIONS _m_______ AND MATERIAL FOR ------- ADDITIONAL eARKING-- __ SEE SHEET 3 FOR LANDSCAPE PLAN WITHIN THE RIGHT-OF-WAY 4336 SANDY BAY DRIVE LOT 47 CPIN 1570-81-7357 Nlr JAMES c. & MARY ANNE CARLSON ~NST/ 20040511000734750) III II S 63'22'50" - 100.00 /" / / ...-"""./ a IlIl it/) :1'-.:> :en l::j i~- 4328 SANDY BAY DRIVE [e:> I; LOT 49 ! CPIN 1570-81-9330 i~ AI IJ'f !!J1 IV; I \& CLARENCE A. & MARY B. II HOLLAND I (DB. 1001, Pc. 238) III IlIl i i i II I: li ......__u_.____n_....-.o... __ -- "--0- S --sANDY BAY DRIVE S(5O'R7~- · - -..- M - .'It. - M -~"-M-"~~---="'M- Nt .-ii:--=====--jj,~..1i.--;=:::==:.-.M-===::::::.:....ii.--=:-:::.:. If. I( (el) SITE DATA & NOTES THE SUBDIVISION PlAT FOR THIS PROPERlY WAS RECORDED IN MAP BOOK 41, PAGE 31. GPIN 1570-81-8343, LOT 48 "BAYLAKE BEACH" SITE ADDRESS IS 4332 SANDY BAY DRIVE ZONING R-15 (SEfBACKS: FRONT 30', SIDE 10', REAR 20') THE PROPERlY FALLS IN THE CHESAPEAKE BAY WATERSHED. THE PROPERlY DOES FALL IN A SPECIAL FLOOD HAZARD AREA AS SHOWN ON THE FEMA NFIP FIRM FOR THE CllY OF VIRGINIA BEACH, COMMUNllY PANEL NUMBER 515531-0004E, DATED DECEMBER 5, 1996. THE PROPERlY FALLS IN FLOOD ZONE 'YE", BASE FLOOD ELEVATIONS 9 - 12. THE PROPOSED DWELUNG IS LOCATED IN A SPECIAL FLOOD HAZARD AREA. EXHIBIT "AU SHOWING 80 ENCROACHMENTS INTO THE RIGHT-OF-WAY I OF feet SANDY BAY DRIVE FOR LQT 48, BAYLAKE BEACH (M.B. 41, PAGE 31) VIRGINIA BEACH, VIRGINIA SCALE: 1 "=40' DATE: 08/29/08 SHEET 1 OF 3 40 I o scale 40 SITE IMPR"" Cfvil Engineers, SUl'leyois EMAll: ccdd@sileimprovemenl.nel Office: 757_671.9000 . cax: 757.671.9268 EOO J'Jr~oer Crescent, Suite A . Chesapeake, Va. 23320 SIA Ii 0317-4- B~ (/1"4.. 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W I- ~ ..q-~ Z II (j) ~ Q (j) I-~ (9 :: ::::iE ()'----' CL ~ :c -' > .. c...> W <( -1 o 2\....... <( 0:: '" <1> 0 (.) <1> (f) Z "- lJJ ~ J- f-- - o N - ~ a ,.- o o ....- ~ l<i r; ::!: ~ ~ I~ ~ Q) oJg N ~ = C'-I <'0 <'0 C'-I g$ro C'-I >- ~ <15- ~~.>o<:: ro r-- ro <==ro ~ r-: g. cv LD en E r-- Q) ~xB e~ E · ~ ~- ,- . --e 2 <c "'=:"_:1~ 'c:r; = cv ?-- (9)= = ~ :g~c75 u.l~ B;::~' I:-- ' . cO (l) Iln i~l~ ~ ~, = V1 = ~ ~~, 11111 June 2, 2008 Mayor Meyera Obemdorf Virginia Beach City Council City Hall Building Virginia Beach, Virginia 23456 SUBJECT: Encroachment Request Located at 4332 Sandy Bay Drive, BayIake Beach, for Mr. James Arnhold - Improved Parking Areas in City Right-Of-Way Dear Mayor Oberndorf: We, the undersigned adiacent property owners. are writing to show our support for Mr. Jim Arnhold's encroachment request for the improved parking areas and columns within the City's right-of-way. Mr. Arnhold has worked closely with the adjacent property owners and advised us of the various details of the construction of this beautiful new residence. We feel that the new home and the additional improvements he proposes will be an excellent addition to the neighborhood. Furthermore, we feel that parking would take place in the identified areas regardless of the materials used within the right-of-way. It can certainly be argued that the materials that Mr. Arnhold proposes greatly enhance the streets cape at this location. Therefore, we strongly support Mr. Arnhold's encroachment request and respectfully ask that City Council consider approving the encroachments as submitted. Sincerely, Name:e L 1~,2.FAC F-- A rtc") U /)./l, f) Printed Address: lJ. -2,"2. V S A /V D V . q:>~ A-V I ~ K. VA ' ~ f=-Acf-I (liP-. -:::2"54 J---=r Name: j"" Avv\, 0 6... CAfU-<b~ Printed Address: f~~ h V\1/ni~ (.J .-fL--f1-~~ Signed ~~ ~"': ~;. t -. . '. . ;.. ~~:.~ ~ ., ',' :;j:":~~ . III II - 46- Item V-K.9. ORDINANCES/RESOLUTIONS ITEM # 58866 Upon motion by Vice Mayor Jones, seconded by Councilman DeSteph, City Council ADOPTED: Ordinance to APPROPRIATE $660,901 Federal Stimulus funds from the American Recovery and Reinvestment Act (ARRA) under the Community Development Block Grant to the Department of Housing and Neighborhood Preservation's FY 2008-09 operating budget re rehabilitation of eligible owner-occupied housing units Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None May 26, 2009 III II 1 AN ORDINANCE TO APPROPRIATE FEDERAL STIMULUS 2 FUNDS TO THE FY 2008-09 OPERATING BUDGET OF 3 THE DEPARTMENT OF HOUSING AND NEIGHBORHOOD 4 PRESERVATION 5 6 7 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 8 VIRGINIA: 9 10 That $660,901 provided to the City under the American Recovery and 11 Reinvestment Act (ARRA) under the Community Development Block Grant is hereby 12 appropriated, with federal revenue increased accordingly, to the FY 2008-09 Operating 13 Budget of the Department of Housing and Neighborhood Preservation for rehabilitation 14 of eligible owner-occupied housing units. 15 16 Adopted by the Council of the City of Virginia Beach, Virginia on the 26th day 17 of May , 2009. 18 19 Requires an affirmative vote by a majority of all the members of City Council. APPROVED AS TO CONTENT: SU FFICI ENCY: APPROVED AS TO LEGAL ~CJ~(l. ~- Management Services -v /~t: ~------- City ~tt rney's Office CA11135 R-2 May 15, 2009 ':1 III II - 47- Item V-K.IO ORDINANCES/RESOL UTIONS ITEM # 58867 Upon motion by Vice Mayor Jones, seconded by Councilman DeSteph, City Council ADOPTED: Ordinance to APPROPRIATE $70,000 from the fund balance of the General Fund to provide an interest-free loan to the Plaza Volunteer Rescue Squad for the purchase of a replacement ambulance. Voting: IO-O (By Consent) Council Members Voting Aye: Glenn R. Davis. William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer. Barbara M Henley. Vice Mayor Louis R, Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva and Rosemary Wilson Council Members Voting Nay: None Council Members Abstaining: James L. Wood Council Members Absent: None Councilman Wood DISCLOSED in accordance with the Virginia State and Local Government Conflict of Interests Act re Item K 10. Ordinance to APPROPRIATE $70,000 from the fund balance of the General Fund to provide an interest-free loan to the Plaza Volunteer Rescue Squadfor the purchase of a replacement ambulance. Councilman Wood's wife is a member of the Plaza Volunteer Rescue Square and currently serves as Administrative Second Lieutenant/Treasurer. She participated in the preparation of the rescue squad's successful application for a State Rescue Squad Assistance Fund Grant. She is a volunteer and receives no compensation. Councilman Wood wishes to voluntarily disclose the facts. The City Attorney's Office has advised him that the Conflict of Interests Act provides that he may vote on, and participate in discussions of, this ordinance without restriction. Councilman Wood's correspondence of May 26,2009, is hereby made apart of the record. May 26, 2009 III I Citye>f Virgi:r1ia Beach JAMES L. WOOD COUNCILMAN - DISTRICT 5 - L VNNHAVEN PHONE: FAX: (757) 340-8411 (757) 340-2082 In Reply Refer to 0039038 May 26, 2009 Mrs. Ruth Hodges Fraser, MMC City Clerk Municipal Center Virginia Beach, Virginia 23456 Re: Disclosure Letter Dear Mrs. Fraser: In accordance with the Virginia State and Local Government Conflict of Interests Act, I make the following declarations: 1. I am executing this written disclosure regarding City Council's discussion and vote on an ordinance to appropriate $70,000 to provide an interest-free loan to the Plaza Volunteer Rescue Squad for the purchases of a replacement ambulance. 2. My wife is a member of the Plaza Volunteer Rescue Squad. She currently serves as Administrative Second Lieutenant/Treasurer, and she participated in the preparation of the rescue squad's successful application for a state Rescue Squad Assistance Fund grant of $65,658.50. The rescue squad intends to purchase the replacement ambulance using a combination of the loan funds, the state grant, funds donated to the rescue squad, and proceeds from the sale or trade-in of the ambulance that will be replaced. 3. My wife is a volunteer with the rescue squad and receives no compensation for her volunteer service. 4. Although the City Attorney's Office has advised me that the Conflict of Interests Act provides that I may vote on, and participate in discussions of, this ordinance without restriction, I nevertheless wish to voluntarily disclose the facts detailed above. 3778 PRINCE ANDREW LANE, VIRGINIA BEACH, VA 23452 III Mrs. Ruth Hodges Fraser 2 May 26, 2009 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, JL W /RRI III 1 AN ORDINANCE TO APPROPRIATE FUNDS TO PROVIDE 2 AN INTEREST-FREE LOAN TO THE PLAZA VOLUNTEER 3 RESCUE SQUAD FOR THE PURCHASE OF A 4 REPLACEMENT AMBULANCE 5 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 6 VIRGINIA: 7 8 1. That $70,000 is hereby appropriated from the fund balance of the General 9 Fund for an interest-free loan to the Plaza Volunteer Rescue Squad for the purchase of 10 a replacement ambulance, contingent upon execution of the attached agreement. 11 12 2. That this loan is to be repaid by Plaza Volunteer Rescue Squad over three (3) 13 years, pursuant to the terms of the attached promissory note. 14 15 Adopted by the Council of the City of Virginia Beach, Virginia on the 26th day 16 of May ,2009. 17 18 Requires an affirmative vote by a majority of all members of the City Council. Approved as to Content: Approved as to Legal Sufficiency: D~;) 0 Management Services 12! ~---- ity ttorn y s 0 ice CA11134 R-1 May 14, 2009 III II PROMISSORY NOTE $70,000 Virginia Beach, Virginia May 26, 2009 FOR VALUE RECEIVED, PLAZA VOLUNTEER RESCUE SQUAD, ("Maker"), promises to pay, without offset, to the order of the City of Virginia Beach, ("Noteholder") at Municipal Center, Virginia Beach, V A, or such other place as Noteholder may designate in writing, the principal sum of SEVENTY THOUSAND DOLLARS ($70,000) together with interest thereon. From the date of this Note, interest on the unpaid principal balance shall accrue at the rate of ZERO Percent (0%) per annum. Payment on principal shall be as follows: On or before June 1,2010 - $23,500 On or before June 1,2011 - $23,500 On or before June 1,2012 - $23,000 This note may be prepaid in whole or in part without penalty. Any such prepayments shall be applied to principal. If the Noteholder has not received the full amount of the annual payment by the end of 15 calendar days after the date it is due, Maker will pay a late charge to the Noteholder. The amount of the charge will be 15% of any overdue payment of principal. Maker will pay this late charge promptly but only once on each late payment. If Maker does not pay the full amount of each annual payment on the date it is due, Maker will be in default, and the entire principal amount hereof, together with all accrued interest and late charges, shall become immediately due and payable at the option of the Noteholder. Failure to exercise this option upon any default shall not constitute or be construed as a waiver of the right to exercise such option subsequently. Presentment, demand, protest, notices of dishonor and of protest, and all defenses and pleas on the ground of any extension or extensions of the time for payment or of the due dates of this note, the release of any parties who are or may become liable hereon, in whole or in part, before or after maturity, with or without notice, are waived by the Maker and are jointly and severally waived by any endorsers, sureties, guarantors and assumers hereof. It is further agreed by each of the foregoing parties that they will pay all expenses incurred in collection this obligation, including reasonable attorney's fees, if this obligation or any part hereof is not paid when due. WITNESS the following signature(s). PLAZA VOLUNTEER RESCUE SQUAD (SEAL) By: Mark Collins, Lieutenant III II Agreement Between the City of Virginia Beach and the Plaza Volunteer Rescue Squad THIS AGREEMENT is made and entered into this __ day of 2009, by and between the CITY OF VIRGINIA BEACH, VIRGINIA ("CITY") and the Plaza Volunteer Rescue Squad ("RESCUE SQUAD"), in accordance with the provisions of Code of Virginia SS 27-15.2 and 27-23.6. WHEREAS, the RESCUE SQUAD maintains equipment and personnel for emergency medical services within the City of Virginia Beach; and WHEREAS, the RESCUE SQUAD desires to provide the CITY with qualified and certified volunteer personnel and equipment to provide emergency medical services, and WHEREAS, the CITY hereto desires to support the volunteer emergency medical services in Virginia Beach provided by the RESCUE SQUAD; and WHEREAS, it is mutually deemed sound, desirable, practicable, and beneficial for the parties to enter into this agreement to render support and services to one another in accordance with these terms. WITNESSETH For and in consideration of the mutual promises and covenants set forth herein, and for other valuable consideration related to the acquisition of a vehicle, the parties enter into the following agreement as defined below: RESPONSIBILITIES OF THE CITY A. Provide a no interest loan for the purchase of the vehicle. B. Provide standardized equipment required for operations within the City including but not limited to mobile communications devices, pagers, and map books. C. Provide or pay for insurance covering emergency service and support vehicles owned by the RESCUE SQUAD. D. Provide fuel for the vehicle. E. Provide all vehicle maintenance and inspection services, including payment of the annual maintenance fee, in support of the vehicle through the CITY's Division of Automotive Services, so long as the vehicle remains a CITY -insured vehicle. The 1 III II Division of Automotive Services shall maintain maintenance records and allow the RESCUE SQUAD's officers access to those records. RESPONSIBILITIES OF THE RESCUE SQUAD A. The RESCUE SQUAD shall repay the loan for the vehicle according to the Promissory Note. The RESCUE SQUAD shall have the ability to request reasonable relief on the due date/amount should extenuating circumstances occur. This request for extension shall be made to the EMS Chief no less than 30 days prior to the payment due date. B. If the vehicle is sold, after satisfying all conditions of the loan, including repayment, the CITY -owned equipment shall be removed and returned to the CITY prior to the sale of the vehicle, unless prior arrangements have been made to reimburse the CITY for the fair market value of the CITY -owned equipment. C. If, notwithstanding the provisions of subsection E in the prior section, the RESCUE SQUAD elects not to use the services of the CITY's Division of Automotive Services for any and all maintenance and inspection services, it shall be the responsibility of the RESCUE SQUAD to maintain the vehicle in accordance with the manufacturer's recommended maintenance schedule and procedures. The RESCUE SQUAD shall pay for all necessary maintenance and repairs and shall only use repair shops that are acceptable to the EMS Chief. DEF AUL T AND MODIFICATION A. In the event that the RESCUE SQUAD defaults on the loan, the CITY may in its sole discretion agree to a modification of this agreement, in accordance with the modification procedure set forth in the next subsection. If the parties do not agree in writing to a modification of this agreement, then, upon default of the loan, ownership of the vehicle shall revert to the CITY. The CITY shall provide a rebate to the RESCUE SQUAD based on the net difference between the fair market value of the vehicle and the unpaid portion of the loan. If the CITY and the RESCUE SQUAD are unable to agree upon the fair market value of the vehicle, the parties shall select a third party who is acceptable to both the CITY and the RESCUE SQUAD to determine the vehicle's fair market value. B. This agreement may be reviewed at any time upon the direction of the City Manager. Each party must agree in writing to any subsequent modifications. 2 III II IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written. CITY OF VIRGINIA BEACH, VIRGINIA James K. Spore, City Manager ATTEST: City Clerk PLAZA VOLUNTEER RESCUE SQUAD By: Title: APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: Virginia Beach Management Services City Attorney's Office Virginia Beach Risk Management Virginia Beach EMS Chief 3 III I PLAZA V(lLUNTEER RESCUE SQUAD P.O. Box 2128 \' irginia Beach. V;\, 23450 Chief Department of EMS 1917 Arctic Avenue Virginia Beach, VA. 23451 May 11,2009 The Plaza Volunteer Rescue Squad needs to replace its aging 1999 International 4700 Ambulance (1621) with a new Ambulance. This will ensure continuation of quality emergency services with state of the art equipment. Ambulance 1621 is the oldest of four ambulances in the Plaza Rescue Squad inventory. Over the past year we have experienced increased mechanical problems including brake, suspension and electrical failures resulting in towing service and unscheduled periods of down time. We attribute this, in part, to the following: . Electrical problems include outdated lighting which creates a larger draw on the electrical system resulting in premature failure of the Ambulance batteries. . Air Conditioning is not adequate to handle the summer temperatures which create scheduling problems during the summer days. . Maintenance costs are now twice as the other ambulances and is only used 18 percent of the time trying to save unnecessary costs. Unit 1621 is a 1999 model year chassis and is now 9 years old and in dire need of replacement. In addition to the aforementioned outdated lighting, the flooring is also in need of replacement. It is not cost effective to rechasis this unit, as the flooring, electrical systems, air conditioning, and upholstery all need replacement. At its present mileage of 200,000+ with the aforementioned problem areas it has become undependable. Plaza Volunteer Rescue Squad has researched and priced ambulances and has decided on another ambulance with a Chevrolet truck chassis. Plaza Rescue Squad currently has three (3) ambulances with the same chassis type in its inventory and its members are familiar with the driving and handling of this type ambulance chassis. Also with the current Chevrolet chassis' in the inventory the maintenance facilities utilized by Plaza Rescue are already in place. III II The proposed cost to purchase a new Ambu]ance is $] 56,832.00 Of this cost Plaza V 0] unteer Rescue Squad has applied for a RSAF grant from the state office of EMS and had been awarded a grant in the amount $65,568.50. Plaza Rescue Squad will be applying $21,263.50 from donations towards the cost plus the sale or trade of the current 1621 (price to be determined). Current budget constraints limit Plaza Rescue Squad's ability to fund this new ambulance without the assistance of the City of Virginia Beach. Plaza Volunteer Rescue Squad is requesting the city of Virginia Beach to augment the state grant and its funds for the purchase of a new ambulance with a no-interest loan of $70,000.00. We are further requesting to pay back this loan over a period of three (3) years at $23,333.33 per year. We request the first payment to be one year after the loan is secured. William J. Walker President III - 48 - Item V-K 11. ORDINANCES/RESOLUTIONS ITEM # 58868 ADD-ON Upon motion by Vice Mayor Jones, seconded by Councilman DeSteph. City Council ADOPTED: Resolution DIRECTING the Department qf Planninf? to produce a Policy in regard to the use of "Chinese Drywall" in construction projects in Virginia Beach. Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph. Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None May 26, 2009 III II REQUESTED BY COUNCILMEMBERS WOOD and DeSTEPH 1 A RESOUTION DIRECTING THE DEPARTMENT OF 2 PLANNING TO PRODUCE A POLICY IN REGARD TO THE 3 USE OF "CHINESE DRYWALL" IN CONSTRUCTION 4 PROJECTS IN VIRGINIA BEACH 5 6 WHEREAS, gypsum wallboard imported from China, commonly referred to as 7 "Chinese drywall," has been associated with negative health effects and adverse effects 8 upon electrical systems and other structural components in residences and other 9 structures in which such drywall has been installed; and 10 11 WHEREAS, "Chinese drywall" has not been determined to be in compliance with 12 applicable code provisions and standards contained in the Uniform Statewide Building 13 Code ("USBC"); and 14 15 WHEREAS, the City's Building Code Official has the authority to ban the use of 16 such material, under the authority of the USBC, until such time as the material is tested 17 and approved; and 18 19 WHEREAS, the use of unauthorized building material may subject the contractor 20 to numerous penalties under the USBC, including suspension of the building permit; 21 and 22 23 WHEREAS, City Council desires to protect the health and safety of its citizens 24 from the dangers posed by use of this unauthorized product. 25 26 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 27 VIRGINIA BEACH: 28 29 That the Department of Planning, Division of Permits and Inspections, shall 30 forthwith develop and implement a policy that bans the use of "Chinese drywall" in 31 construction in Virginia Beach unless and until such material is determined to be in 32 compliance with all applicable USBC requirements. Adopted by the Council of the City of Virginia Beach, Virginia on this 26th day of May , 2009. APPROVED AS TO LEGAL SUFFICIENCY: ~~ City Attorney's Office ~ CA 11146 R-3 May 26, 2009 1III1 - 49- Item V-LIM. PLANNING ITEM # 58869 NO ACTION NECESSARY 1. Ordinance to AMEND Appendix C, Site Plan Ordinance, Section 5B, reflood plains and the requirements of the National Flood Insurance Program. (Expedited and Adopted 4/28/09 Item #58765) 2. Application of the CITY OF VIRGINIA BEA CH for a Change of Zoning District Classification from R- 5D Residential Duplex to I-I Light Industrial at 212-228 Fair Lady Road and 2305 Potters Road. (Deferred by the Planning Commission) DISTRICT 6 - BEACH 1. CITY OF VIRGINIA BEACH STREET CLOSURE 2. CA VALIER GOLF and YACHT CLUB STREET CLOSURE 3. ELLIS-GIBSON DEVELOPMENT GROUPI LAKE GEM II, LLC CONDITIONAL U8SE PERMIT 4. NEW CINGULAR WIRELESS PCS, LLC (TIA AT & T CONDITIONAL USE PERMIT 5. CHESTER and VIVIAN TUCKER CONDITIONAL USE PERMIT 6. FLORDELIZA and DANIEL BAYANGOS, JR., DBA LIZA'S RESIDENTIAL CARE CONDITIONAL USE PERMIT 7. PRINCESS ANNE CHURCH OF CHRIST CONDITIONAL USE PERMIT 8. CITY OF VIRGINIA BEACH CHANGE OF ZONING 9. RICHMOND 20 MHz, LLC MODIFICATION OF CONDITIONS No.1 and 3 (approved by City Council 1112212005) 10. OFFICIAL ZONING MAP AUTHORIZE May 26, 2009 Item V-L.1. PLANNING - 50 - ITEM # 58870 NO ACT/ON NECESSARY NO ACT/ON BY CONSENSUS Ordinance to AMEND Appendix C, Site Plan Ordinance, Section 5B, re floodplains and the requirements of the National Flood Insurance Program. (Adopted by City Council April 28, 2009, Item #58765) "11 May 26, 2009 Item V-L.2. PLANNING - 51 - ITEM # 58871 NO ACTION NECESSARY NO ACTION BY CONSENSUS Application of the CITY OF VIRGINIA BEACHfor a Change of Zoning District Classiticationfrom R- 5D Residential Duplex to I-I Light Industrial at 212-228 Fair Lady Road and 2305 Potters Road. (DEFERRED BY PLANNING COMMISSION) DISTRICT 6- BEACH 11111 May 26, 2009 11II1 - 52 - Item V-M. PLANNING ITEM # 58872 Upon motion by Vice Mayor Jones, seconded by Councilman DeSteph, City Council APPROVED in ONE MOTION Items 1, 2,3, 4, 5,6, 7,8,9 and 10 of the PLANNING BY CONSENT AGENDA. Item M. 4 (NEW CINGULAR WIRELESS PCS, LLC (T/A AT & T) was DEFERRED INDEFINITELY, BY CONSENT. Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None Mayor Sessoms DISCLOSED and will ABSTAIN pursuant to Section 2.2-3115(E), Code of Virginia re Item M3. (Ellis-Gibson Development Group/Lake Gem I/, LLC), Mayor Sessoms will ABSTAIN from voting on this transaction because he is an Officer of TowneBank, which is located at 297 Constitution Drive, and the applicant may obtain financing from TowneBank. Mayor Sessoms' correspondence of May 26, 2009, is hereby made a part of the record. May 26, 2009 11I1 - 53 - Item V-M.l. PLANNING ITEM # 58873 Upon motion by Vice Mayor Jones, seconded by Councilman DeSteph, City Council ADOPTED the Ordinance upon application of the CITY OF VIRGINIA BEACH for a street closure at Terrell Avenue (unimproved) to incorporate the right-ofway into surrounding property owned by the City ORDINANCE UPON APPLICATION OF THE CITY OF VIRGINIA BEACH FOR THE CLOSURE OF A PORTION OF TERRELL A VENUE EAST OF LONDON BRIDGE ROAD. Ordinance upon application of the City of Virginia Beach for the closure of a portion of Terrell Avenue east of London Bridge Road. (GP IN: South of 14979276410000, and north of 14979284620000, 14979274750000,14979274020000 and 14979264530000) DISTRICT 6 - BEACH The following conditions shall be required: 1. The City Attorney's Office will make the final determination regarding ownership of the underlying fee. The purchase price to be paid to the City is normally determined according to the "Policy Regarding Purchase of City's Interest in Streets Pursuant to Street Closures, " approved by City Council. Copies of the policy are available in the Planning Department. No purchase price shall be charged in this street closure, however, because the City is both the owner of the underlyingfee and the applicant seeking this street closure. 2. The applicant shall resubdivide the property and vacate internal lot lines to incorporate the closed area into the adjoining parcels. The plat must be submitted and approved for recordation prior to final street closure approval. 3. The applicant shall verify that no private utilities exist within the right-ofway proposed for closure. Ifprivate utilities do exist, easements satisfactory to the utility company must be provided. 4. Closure of the right-ofway shall be contingent upon compliance with the above stated conditions within 365 days of approval (May 25, 2010) by City Council. If the conditions noted above are not accomplished and the final plat is not approved within one year of the City Council vote to close the right-ofway, this approval shall be considered null and void. May 26, 2009 III - 54 - Item V-M.l. PLANNING ITEM # 58873 (Continued) Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None May 26,2009 III 1 APPLICATION OF THE CITY OF VIRGINIA BEACH 2 FOR THE CLOSURE OF A PORTION OF TERRELL 3 AVENUE EAST OF LONDON BRIDGE ROAD. 4 5 WHEREAS, City of Virginia Beach (the "Applicant") applied to the Council 6 of the City of Virginia Beach, Virginia, to have the hereinafter described unimproved 7 right-of-way discontinued, closed, and vacated; and 8 9 WHEREAS, it is the judgment of the Council that said right-of-way be 10 discontinued, closed, and vacated, subject to certain conditions having been met on or 11 before one (1) year from City Council's adoption of this Ordinance; 12 13 NOW, THEREFORE, BE IT ORDAINED by the Council of the City of 14 Virginia Beach, Virginia: 15 16 SECTION I 17 18 That the hereinafter described right-of-way be discontinued, closed and 19 vacated, subject to certain conditions being met on or before one (1) year from City 20 Council's adoption of this ordinance: 21 22 All that certain piece or parcel of land situate, lying and being 23 in the City of Virginia Beach, Virginia, designated and 24 described as "AREA OF TERRELL AVENUE FOR 25 PROPOSED CLOSURE = 9,573 SQUARE FEET OR 0.220 26 ACRES" shown as the cross-hatched area on that certain 27 plat entitled: "EXHIBIT DEPICTING PORTION OF 28 TERRELL AVENUE FOR PROPOSED STREET CLOSURE 29 VIRGINIA BEACH, VIRGINIA" Scale 1"=50', dated April 13, 30 2009, prepared by LandMark Design Group, a copy of which 31 is attached hereto as Exhibit A. 32 33 SECTION II 34 35 The following conditions must be met on or before one (1) year from City 36 Council's adoption of this ordinance: 37 38 GPIN(S): 1497-92-6671-0000; 1497-92-7641-0000; 1497-92-8462-0000; 1497-92-7475- 39 0000; 1497-92-7402-0000; 1497-92-6453-0000 40 1 III I 41 1. The City Attorney's Office will make the final determination regarding 42 ownership of the underlying fee. The purchase price to be paid to the City is normally 43 determined according to the "Policy Regarding Purchase of City's Interest in Streets 44 Pursuant to Street Closures," approved by City Council. Copies of the policy are 45 available in the Planning Department. No purchase price shall be charged in this street 46 closure, however, because the City is both the owner of the underlying fee and the 47 applicant seeking this street closure. 48 49 2. The applicant shall resubdivide the property and vacate internal lot lines to 50 incorporate the closed area into the adjoining parcels. The plat must be submitted and 51 approved for recordation prior to final street closure approval. 52 53 3. The applicant shall verify that no private utilities exist within the right-of 54 way proposed for closure. If private utilities do exist, easements satisfactory to the utility 55 company must be provided. 56 57 4. Closure of the right-of-way shall be contingent upon compliance with the 58 above stated conditions within 365 days of approval by City Council. If the conditions 59 noted above are not accomplished and the final plat is not approved within one year of 60 the City Council vote to close the right-of-way this approval shall be considered null and 61 void. 62 63 SECTION III 64 65 1. If the preceding conditions are not fulfilled on or before May 25, 2010, 66 this Ordinance will be deemed null and void without further action by the City Council. 67 68 2. If all conditions are met on or before May 25, 2010, the date of final 69 closure is the date the street closure ordinance is recorded by the City Attorney. 70 71 3. In the event the City of Virginia Beach has any interest in the 72 underlying fee, the City Manager or his designee is authorized to execute whatever 73 documents, if any, that may be requested to convey such interest, provided said 74 documents are approved by the City Attorney's Office. 75 76 SECTION IV 77 78 A certified copy of this Ordinance shall be filed in the Clerk's Office of the 79 Circuit Court of the City of Virginia Beach, Virginia, and indexed in the name of the CITY 80 OF VIRGINIA BEACH as "Grantor" and CITY OF VIRGINIA BEACH, as "Grantee." 81 82 Adopted by the Council of the City of Virginia Beach, Virginia, on this 83 26th day of May, 2009. 2 CA11012 I Ivbgov .comldfs 1 lapplicationslcitylawprodlcycom321 WpdocslDO 141P0051000 12699. DOC R-1 May 14, 2009 11111 APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: WC{Cv q. VV~ City Attorney 3 III - 55 - Item V-M.2. PLANNING ITEM # 58874 Upon motion by Vice Mayor Jones, seconded by Councilman DeSteph, City Council ADOPTED the Ordinance upon Application of the CA VALIER GOLF and YACHT CLUB for the closure of a portion of Cardinal Road from the north side of Starling Court to its terminus. ORDINANCE UPON APPLICATION OF CAVALIER GOLF & YACHT CLUB, STREET CLOSURE. PORTION OF CARDINAL ROAD FROM THE NORTH SIDE OF STARLING COURT TO ITS TERMINUS. Ordinance upon application of CAVALIER GOLF & YACHT CLUB. Street Closure. portion of Cardinal Road from the north side of Starling Court to its terminus. (GPIN: 24182465840000) DISTRICT 5 - LYNNHA VEN The following conditions shall be required: 1. The City Attorney's Office will make the final determination regarding ownership of the underlyingfee, The purchase price to be paid to the City shall be determined according to the "Policy Regarding Purchase of City 's Interest in Streets Pursuant to Street Closures" approved by City Council. Copies of the policy are available in the Planning Department. 2. The applicant shall resubdivide the property and vacate internal lot lines to incorporate the closed area into the adjoining parcels. The plat must be submitted and approved for recordation prior to final street closure approval. 3. The applicant shall verifY that no private utilities exist within the right-of-way proposed for closure. If private utilities do exist, easements satisfactory to the utility company must be provided. 4. Closure of the right-of-way shall be contingent upon compliance with the above stated conditions within 365 days of approval by City Council (May 25. 2010). If the conditions noted above are not accomplished and the final plat is not approved within one year of the City Council vote to close the right-of-way. this approval shall be considered null and void. May 26, 2009 - 56 - Item V-M.2. PLANNING ITEM # 58874 (Continued) Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph. Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None ,II II May 26, 2009 III II 1 APPLICATION OF CAVALIER GOLF & YACHT 2 CLUB FOR THE CLOSURE OF A PORTION OF 3 CARDINAL ROAD FROM THE NORTH SIDE OF 4 STARLING COURT TO ITS TERMINUS. 5 6 WHEREAS, Cavalier Golf & Yacht Club (the "Applicant") applied to the 7 Council of the City of Virginia Beach, Virginia, to have the hereinafter described right-of- 8 way discontinued, closed, and vacated; and 9 10 WHEREAS, it is the judgment of the Council that said right-of-way be 11 discontinued, closed, and vacated, subject to certain conditions having been met on or 12 before one (1) year from City Council's adoption of this Ordinance; 13 14 NOW, THEREFORE, BE IT ORDAINED by the Council of the City of 15 Virginia Beach, Virginia: 16 17 SECTION I 18 19 That the hereinafter described right-of-way be discontinued, closed and 20 vacated, subject to certain conditions being met on or before one (1) year from City 21 Council's adoption of this ordinance: 22 23 All that certain piece or parcel of land situate, lying and being 24 in the City of Virginia Beach, Virginia, designated and 25 described as "INDICATES 77,649.5 SQ. FT. PARCEL 26 KNOWN AS A PORTION OF CARDINAL ROAD TO BE 27 CLOSED" shown as the cross-hatched area on that certain 28 plat entitled: "PLAT SHOWING PORTION OF CARDINAL 29 ROAD TO BE CLOSED BY THE CITY OF VIRGINIA 30 BEACH VIRGINIA BEACH, VIRGINIA" Scale 1"=100', dated 31 December 19, 2008, prepared by Gallup Surveyors & 32 Engineers, LTD., a copy of which is attached hereto as 33 Exhibit A. 34 35 SECTION II 36 37 The following conditions must be met on or before one (1) year from City 38 Council's adoption of this ordinance: 39 40 GPIN: 2418-24-6584-0000 41 1 III II 42 1. The City Attorney's Office will make the final determination regarding 43 ownership of the underlying fee. The purchase price to be paid to the City shall be 44 determined according to the "Policy Regarding Purchase of City's Interest in Streets 45 Pursuant to Street Closures," approved by City Council. Copies of the policy are 46 available in the Planning Department. 47 48 2. The applicant shall resubdivide the property and vacate internal lot 49 lines to incorporate the closed area into the adjoining parcels. The plat must be 50 submitted and approved for recordation prior to final street closure approval. 51 52 3. The applicant shall either dedicate an easement for the existing water 53 line and sanitary sewer line located within the right-of-way proposed for closure, subject 54 to the approval of the Department of Public Utilities and the City Attorney's Office, which 55 easement shall include a reasonable right of ingress and egress, or the applicant shall 56 relocate the taps and connections associated with the existing water line and sanitary 57 sewer line, subject to the approval of the Department of Public Utilities. 58 59 4. The applicant shall verify that no private utilities exist within the right of 60 way proposed for closure. Preliminary comments from the utility companies indicate that 61 there is a gas line that runs along a portion of the right-of-way proposed for closure. If 62 private utilities do exist, easements satisfactory to the utility companies must be 63 provided. 64 65 5. Closure of the right-of-way shall be contingent upon compliance with 66 the above stated conditions within 365 days of approval by City Council. If the 67 conditions noted above are not accomplished and the final plat is not approved within 68 one year of the City Council vote to close the right-of-way, this approval shall be 69 considered null and void. 70 71 SECTION III 72 73 1. If the preceding conditions are not fulfilled on or before May 25, 2010, 74 this Ordinance will be deemed null and void without further action by the City Council. 75 76 2. If all conditions are met on or before May 25, 2010, the date of final 77 closure is the date the street closure ordinance is recorded by the City Attorney. 78 79 3. In the event the City of Virginia Beach has any interest in the 80 underlying fee, the City Manager or his designee is authorized to execute whatever 81 documents, if any, that may be requested to convey such interest, provided said 82 documents are approved by the City Attorney's Office. 83 84 SECTION IV 85 2 III I 86 A certified copy of this Ordinance shall be filed in the Clerk's Office of the 87 Circuit Court of the City of Virginia Beach, Virginia, and indexed in the name of the CITY 88 OF VIRGINIA BEACH as "Grantor" and CAVALIER GOLF & YACHT CLUB, as 89 "Grantee." 90 Adopted by the Council of the City of Virginia Beach, Virginia, on this 91 26thdayof May ,2009. 92 93 THIS ORDINANCE REQUIRES AN AFFIRMATIVE VOTE OF THREE- 94 FOURTHS OF ALL COUNCIL MEMBERS ELECTED TO COUNCIL. CA10997 \ \vbgov .com\dfs 1 \applications\citylawprod\cycom32\ Wpdocs\D007\P005\OOO 11889 .DOC R-1 May 7, 2009 APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: W{UL(f AAii!Ow City Attorney 3 11111 - 57 - Item V-M.3. PLANNING ITEM # 58875 Upon motion by Vice Mayor Jones, seconded by Councilman DeSteph. City Council ADOPTED an Ordinance upon application of ELLIS-GIBSON DEVELOPMENT GROUP / LAKE GEM II, LLC for a Conditional Use Permit re a seasonal outdoor "green" market at 2181 Upton Drive. ORDINANCE UPON APPLICATION OF ELLIS-GIBSON DEVELOPMENT GROUP / LAKE GEM II, LLC, CONDITIONAL USE PERMIT, SEASONAL OUTDOOR 'GREEN'MARKET, 2181 UPTON DRIVE. R050935341 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of ELLIS-GIBSON DEVELOPMENT GROUP / LAKE GEM II, LLC, Conditional Use Permit, seasonal outdoor 'green' market, 2181 Upton Drive. (GPIN: 24142499220000) DISTRICT 7 - PRINCESS ANNE The following conditions shall be required: 1. The activities of the Green Market shall occur in the area of the parking lot on the southern side of the retail strip designated as D8E-1. 2. Operation of the market shall occur only once per week, on Saturday, between 8:00 A.M. and 1:00 P.M. during the period between the traditional Memorial Day weekend and the last Saturday in September. 3. Trash and recycling receptacles shall be located at the entrances to the market. The site shall be cleared of trash at the conclusion of each market day and all receptacles shall be removed and contents properly disposed of at the end of each market day. 4. Parking for the market shall occur in the parking area at the east side of the retail strip as allowed by agreement between the applicant and those property owners, 5. The market shall be only for the sale of local agricultural, seafood, related organic food products and hand-made craft items. Pet-friendly businesses, non-profit organizations and health & wellness experts may also operate within the market area. 6. The Zoning Administrator shall review this Use Permit on an annual basis to determine if there have been any issues during the prior season of operation that negatively impact on the compatibility of the use with the surrounding area to the extent that a re-evaluation of the Use Permit is necessary. If so, the Use Permit shall be re-evaluated by the Planning Department staff who shall recommend appropriate action to the Planning Commission and City Council. This Ordinance shall be effective in accordance with Section 107 (f) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-sixth of May, Two Thousand Nine May 26, 2009 III II - 58 - Item V-M.3. PLANNING ITEM # 58875 (Continued) Voting: 10-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph. Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, John E. Uhrin. Ron A, Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Abstaining: Mayor William D. Sessoms, Jr. Council Members Absent: None Mayor Sessoms DISCLOSED and ABSTAINED pursuant to Section 2.2-3115(E}, Code of Virginia re Item M3. (Ellis-Gibson Development Group/Lake Gem II, LLC). Mayor Sessoms ABSTAINED from voting on this transaction because he is an Officer of TowneBank, which is located at 297 Constitution Drive, and the applicant mav obtain financing from TowneBank. Mayor Sessoms' correspondence of May 26, 2009, is hereby made a part of the record. May 26, 2009 III City c:>f Vi:rgi~ia Beach WilLIAM D. SESSOMS, JR. MAYOR VBgov.com MUNICIPAL CENTER BUILDING 1 2401 COURTHOUSE DRIVE VIRGINIA BEACH, VA 23456-9000 (757) 385-4581 FAX (757) 385-5699 wsessoms@vbgov.com In Reply Refer to 0039039 May 26, 2009 Mrs. Ruth Hodges Fraser, MMC City Clerk Municipal Center Virginia Beach, Virginia 23456 Dear Mrs. Fraser: Re: Abstention Pursuant to Conflict ofInterests Act S 2.2-3115 (E) Pursuant to the State and Local Government Conflict ofInterests Act, I make the following declaration: 1. I am executing this written disclosure regarding City Council's discussion and vote on the application of Ellis-Gibson Development Group/Lake Gem II, LLC for a conditional use permit for a seasonal outdoor market at 2181 Upton Drive. 2. I have a personal interest in this transaction because I am an officer of TowneBank, which is located at 297 Constitution Drive in Virginia Beach, and TowneBank may provide financing for this project. -==--- 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. Mrs. Ruth Hodges Fraser -2- Re: Abstention Pursuant to Conflict of Interests Act S 2.2-3115 (E) Thank you for your assistance and cooperation in this matter. #4h William D. Sessoms Mayor WDS/RRI III II May 26, 2009 III II - 59 - Item V-M.4. PLANNING ITEM # 58876 Upon motion by Vice Mayor Jones, seconded by Councilman DeSteph, City Council DEFERRED INDEFINITELY an Ordinance upon application of NEW CINGULAR WIRELESS PCS, LLC (TIA AT&T) for a Conditional Use Permit re a communication tower at 6009 Blackwater Road. ORDINANCE UPON APPLICATION OF NEW CINGULAR WIRELESS PCS, LLC (TIA AT&T) FOR A CONDITIONAL USE PERMIT RE A COMMUNICATION TOWER AT 6009 BLACKWATER ROAD Ordinance upon application of NEW CINGULAR WIRELESS PCS, LLC (TIA AT&T) for a Conditional Use Permit re a communication tower at 6009 Blackwater Road. DISTRICT 7 - PRINCESS ANNE Voting: I 1-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None May 26. 2009 III II - 60- Item V-M.S. PLANNING ITEM # 58877 Upon motion by Vice Mayor Jones, seconded by Councilman DeSteph, City Council ADOPTED an Ordinance upon application of CHESTER and VIVIAN TUCKER for a Conditional Use Permit to convert their single family residence into a Country Inn at 1557 Sandbridge Road ORDINANCE UPON APPLICATION OF CHESTER AND VIVIAN TUCKER FOR A CONDITIONAL USE PERMIT TO CONVERT THEIR SINGLE FAMILY RESIDENCE INTO A COUNTRY INN AT 1557 SANDBRIDGE ROAD R050935342 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of CHESTER and VIVIAN TUCKER for a Conditional Use Permit to convert their single family residence into a Country Inn at 1557 Sandbridge Road (GPIN: 2418854670000) DISTRICT 7 - PRINCESS ANNE The following conditions shall be required: 1. A Certificate of Occupancy for the change of use must be obtained from the Building Official's Office prior to operating the residence as a Country Inn. 2. A Tourist Establishment Permit must be obtained from the Virginia Department of Public Health. 3. Approval from the Health Department shall be obtained for water and sewage disposal, as City water and sewer service are not currently provided to this site, and any modifications to the exiting septic system shall be installed as deemed necessary by the Health Department prior to the issuance of the final occupancy. 4. The Country Inn is limited to no more than five (5) guest rooms. 5. Food service shall be limited to breakfast and a light fare menu of sandwiches, salads, soups, fruit and cheese plates and snacks provided only for the guests of the inn. 6. The development of the site shall substantially adhere to the site plan entitled "Site Plan, Lot 2, Subdivision of Portion of Property Owned by David B. Hill, Jr., et. al. " prepared by Gallup Surveyors & Engineers, Ltd. dated June 30, 1987, with the exception of addition(s) to the dwelling. The site plan has been exhibited to City Council and is onfile in the Planning Department. 7. Any additions to the dwelling shall comply with the regulations of the Floodplain Ordinance and any other City Ordinances and regulations. 8. Any additions to the dwelling shall be in substantial conformance with the architectural design and with the same building materials and colors as the existing residential structure and shall be submitted to the Planning Director for review and approval prior to the issuance of a building permit. May 26, 2009 III II - 61 - Item V-M.5. PLANNING ITEM # 58877 (Continued) 9. Sign age shall be limited to one (1) identification sign no more than nine (9) square feet in area. There shall be no other signage in or on the windows, doors or exterior of the building other than emergency or directional signs that may be required by the Building Official's Office. 10. The applicant shall meet with the Fire Marshal to review the site, the building and the site plan and implement recommended fire safety measures deemed necessary and enforceable by the Fire Marshal for the facility. This Ordinance shall be effective in accordance with Section 107 (f) of the Zoning Ordinance, Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-sixth of May, Two Thousand Nine Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None May 26, 2009 III II - 62 - Item V-M.6. PLANNING ITEM # 58878 Upon motion by Vice Mayor Jones, seconded by Councilman DeSteph, City Council ADOPTED an Ordinance upon application of FLORDELIZA and DANIEL BAYANGOS, JR., DBA LIZA'S RESIDENTIAL CARE for a Conditional Use Permit re senior residential care at 5084 Langston Court, ORDINANCE UPON APPLICATION OF FLORDELIZA AND DANIEL BAYANGOS, JR., DBA LIZA'S RESIDENTIAL CARE FOR A CONDITIONAL USE PERMIT RE SENIOR RESIDENTIAL CARE AT 5084 LANGSTON COURT. R050935343 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of FLORDELIZA and DANIEL BAYANGOS, JR., DBA LIZA'S RESIDENTIAL CARE for a Conditional Use Permit re senior residential care at 5084 Langston Court (GPIIN: 14667099830000). DISTRICT 2 - KEMPSVILLE The following conditions shall be required: 1. The Conditional Use Permit shall be for Assisted Living Care of up to five (5) seniors as defined by the City of Virginia Beach Zoning Ordinance within three (3) bedrooms of the dwelling located on the parcel. 2. The applicants shall file an application with the State Department of Social Services to be licensed as a Assisted Living Facility Home. Ijthe applicant is not licensed as an Assisted Living Facility, the applicant shall care for only three (3) individuals consistent with the regulations of the State Department of Social Services. 3. All necessary alteration permits and a Certificate of Occupancy for the use shall be obtained from the Department of Planning / Permits and Inspections Division before occupancy of more than three (3) seniors. 4. Only one (1) employee (aide), not including the applicants, may be on the site at anyone time. 5. The applicants shall meet with the City Fire Marshall to review the building and site plans and shall agree to fire safety measures for the facility that are satisfactory to and enforceable by the Fire Marshall. 6. The facility shall meet the building provisions of the Americans with Disabilities Act or the applicants shall require that the residents be ambulatory. 7. The building shall be protected by centrally-monitored alarm systems. Bedrooms and bathrooms shall be served by a centrally-monitored call-for-aid system 8. The house numbers on the front of the residence shall be clearly visible and unobstructed at all times so that emergency personnel can quickly find the house. 9. This Conditional Use Permit shall be administratively reviewed in two (2) years for compliance with these conditions. May 26. 2009 III II - 63 - Item V-M.6. PLANNING ITEM # 58878 (Continued) This Ordinance shall be effective in accordance with Section 107 (/) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-sixth of May, Two Thousand Nine Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None May 26, 2009 11I11 - 64- Item V-M. 7. PLANNING ITEM # 58879 Upon motion by Vice Mayor Jones, seconded by Councilman DeSteph, City Council ADOPTED an Ordinance upon application of PRINCESS ANNE CHURCH OF CHRIST for a Conditional Use Permit re a church at 3016 Virginia Beach Boulevard: ORDINANCE UPON APPLICATION OF PRINCESS ANNE CHURCH OF CHRIST FOR A CONDITIONAL USE PERMIT RE A CHURCH AT 3016 VIRGINIA BEACH BOULEVARD R050935345 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of PRINCESS ANNE CHURCH OF CHRIST for a Conditional Use Permit re a church at 3016 Virginia Beach Boulevard: DISTRICT 5 - LYNNHA VEN The following conditions shall be required: 1. The number of individuals attending a service shall not exceedfifty (50), or the number established by the City's Fire Marshall, with the lower number of the two (2) being the maximum. 2. The applicant shall not use the space within the building for church purposes until all requirements of relevant Building Code provisions pertaining to a church have been satisfied and a Certificate of Occupancy for the use of the space as a church has been obtained from the Department of Planning / Permits and Inspections Division. This Ordinance shall be effective in accordance with Section 107 (f) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-sixth of May, Two Thousand Nine Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph. Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None May 26, 2009 II III - 65 - Item V-M.8. PLANNING ITEM # 58880 Upon motion by Vice Mayor Jones, seconded by Councilman DeSteph, City Council ADOPTED, with DEED RESTRICTIONS, an Ordinance upon application of the CITY OF VIRGINIA BEACHfor a Change of Zoning District Classification from R-5D Residential Duplex and A-I2 Apartment to I-I Light Industrial at London Bridge and Potters Road. (AIC02) ORDINANCE UPON APPLICATION OF THE CITY OF VIRGINIA BEACH FOR A CHANGE OF ZONING DISTRICT CLASSIFICATION FROM R-5D RESIDENTIAL DUPLEX AND A-I2 APARTMENT TO I-I LIGHT INDUSTRIAL A T LONDON BRIDGE AND POTTERS ROAD. (AICUZ) Z0509I226 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH. VIRGINIA Ordinance upon application of the CITY OF VIRGINIA BEACH for a Change of Zoning District Classification from R-5D Residential Duplex and A-I2 Apartment to I-I Light Industrial at London Bridge and Potters Road. (AICUZ) DISTRICT 6 - BEACH Deed Restrictions shall be recorded with the Clerk of Circuit Court. This Ordinance shall be effective in accordance with Section 107 (j) of the Zoning Ordinance. Adopted by the Council of the City of Virginia Beach, Virginia, on the Twenty-sixth of May, Two Thousand Nine Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None May 26, 2009 III II - 66- Item V-M.9 PLANNING ITEM # 58881 Upon motion by Vice Mayor Jones, seconded by Councilman DeSteph, City Council ADOPTED Ordinance upon application of RICHMOND 20MHz, LLC, Modification of Conditions No. 1 and 3 (approved by City Council on November 22, 2005) re location and the number of antenna arrays allowed on the tower at 1000 Great Neck Road ORDINANCE UPON AP PLICA TION OF RICHMOND 20MHZ, LLC, MODIFICATION OF CONDITIONS NO. 1 AND 3 (APPROVED BY CITY COUNCiL ON NOVEMBER 22,2005) RE LOCATiON AND THE NUMBER OF ANTENNA ARRAYS ALLOWED ON THE TOWER AT 1000 GREAT NECK ROAD Ordinance upon application of RICHMOND 20MHz, LLC, Modification of Conditions No. 1 and 3 (approved by City Council on November 22, 2005) re location and the number of antenna arrays allowed on the tower at 1000 Great Neck Road (GPIN: 24081377690000) DISTRICT 5 - LYNNHA VEN The following conditions shall be required: 1. All conditions, with the exception of Number 1 and Number 3 attached to the Conditional Use Permit granted by the City Council on November 22, 2005, remain in effect. 2. Condition Number 1 of the November 22, 2005, Conditional Use Permit is deleted and replaced with the following: The tower shall be constructed substantially in adherence to the site plans entitled "nTelos, NR-5434 Colonial Oaks 1000 North Great Neck Road Virginia Beach, VA 23454, Sheets T-1, N-1, N-2, N-3, C-1, C-2, C-2A, C-3, C-4, C-5" prepared by ALLPRO Consulting Group, Inc. and dated Revision 2 12/01/08 Zoning. This site plan has been exhibited to City Council and is on file with the Department of Planning 3. Condition Number 3 of the November 22, 2005, Conditional Use Permit is deleted and replaced with the following: The tower shall be constructed to accommodate equipment for three (3) additional wireless providers as depicted on the submitted site plans May 26, 2009 - 67 - Item V-M.9 PLANNING ITEM # 58881 (Continued) Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph. Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None III II May 26, 2009 III II - 68 - Item V-M. 10. PLANNING ITEM # 58882 Upon motion by Vice Mayor Jones, seconded by Councilman DeSteph, City Council ADOPTED Ordinance to A UTHORIZE a new Official Zoning Map, which shall replace the existing Map, due to a change in the computer mapping format used to store the data and develop the printed copies. There are no changes between the current and proposed maps in regard to the Zoning Districts or to their existing locations. Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None May 26, 2009 III II 1 AN ORDINANCE TO ADOPT A NEW OFFICIAL 2 ZONING MAP 3 4 WHEREAS, the public necessity, convenience, general welfare and good zoning 5 practice so require; 6 7 WHEREAS, the City of Virginia Beach has determined to change the computer 8 mapping format used to store and print the maps and other data contained in the official 9 zoning map; and 10 11 WHEREAS, no district boundaries or other substantive data have been changed on 12 the new zoning map; 13 14 NOW, THEREFORE, BE IT ORDAINED BYTHE CITY COUNCIL OFTHE CITY OF 15 VIRGINIA BEACH, VIRGINIA: 16 17 That the official zoning map of the City of Virginia Beach be, and hereby is, 18 readopted, as shown on a series of sheets that have been marked and identified as such, 19 have been displayed before the City Council this date, and are on file in the Department of 20 Planning. 21 Adopted by the City Council of the City of Virginia Beach, Virginia on this 26Uday of May ,2009. Approved as to Content: Approved as to Legal Sufficiency: ;vdlW( Iii; t!rutti City Attorney's Office CA-11115 R-3 April 27, 2009 Item #16 City of Virginia Beach An Ordinance to Adopt a New Official Zoning Map May 13, 2009 CONSENT Joseph Strange: The next matter is item 16. An Ordinance to adopt a new Official Zoning Map which shall replace the existing Official Zoning Map due to a change in the computer mapping format used to store the map data and develop a printed copy. There are no changes to the zoning districts or to their existing locations. Is there any opposition to this matter being placed on the consent agenda? The Chair has asked Dr. Stephen White to review this item. Stephen White: Thank you Mr. Strange. Item16 sounds ominous when you say "adopting a new Official Zoning Map", but it is not ominous at all. The reason why we're doing this is the zoning map that we currently have is on an antiquated computer system. It is time for the Planning Department and the City to put the zoning map into the 21 sl Century. So, were moving it from what's called a CAD System into a GIS, which will make it smarter. We will be able to do some calculation and analysis with it. It will also allow the public to be able to view the zoning maps online, on the Internet on the City's website, something that can't be done now very easily. There are no changes to any of the boundaries. No changes to district designations, but the maps are certainly a lot better looking. Joseph Strange: Okay. Thank you Stephen. Stephen White: You're welcome. Joseph Strange: Madame Chair, I have a motion to approve item 16. Janice Anderson: I have a motion by Joe Strange. Do I have a second? We have a second by Don Horsley. AYE 10 NAY 0 ABSO ANDERSON AYE BERNAS AYE CRABTREE HENLEY AYE HORSLEY AYE KA TSIAS AYE LIV AS AYE REDMOND AYE RIPLEY AYE RUSSO AYE STRANGE AYE ABSENT 1 ABSENT Ed Weeden: By a vote of 10-0, the Board has approved item 16 for consent. Item N. 1. APPOINTMENTS - 69- ITEM # 58883 BY CONSENSUS, City Council RESCHEDULED the following APPOINTMENTS: BIKEWAYS AND TRAILS ADVISORY COMMITTEE HUMAN RIGHTS COMMISSION PARKS and RECREATION COMMISSION SOCIAL SERVICES BOARD TIDEWATER COMMUNITY COLLEGE BOARD II III II May 26, 2009 - 70 - Item N.2. APPOINTMENTS ITEM # 58884 Upon NOMINATION by Vice Mayor Jones. City Council: REAPPOINTED: James M. Arnhold Scott P. Ayers Alaura R. Guion Charles R. Malbon, Jr. APPOINTED: Charles Gee Faison, Jr. 3 year term 07/01/2009 - 06/30/2012 BA YFRONT ADVISORY COMMITTEE Voting: 11-0 Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel. Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin. Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None III II May 26. 2009 - 71 - Item N.3. APPOINTMENTS ITEM # 58885 Upon NOMINATION by Vice Mayor Jones, City Council: REAPPOINTED: George L. Grinnan, MD, Bayside District S. Brady Vicce/lio, Lynnhaven District Rodney A. Voelker, Centerville District APPOINTED: Charles W. Guthrie, Jr., At Large Wesley B. Laine, Beach District 3 year term 07/01/2009 - 06/30/2012 BEACHES and WATERWAYS COMMISSION Voting: 11-0 Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None III II May 26. 2009 - 72- Item N.4. APPOINTMENTS ITEM # 58886 Upon NOMINA TION by Vice Mayor Jones, City Council APPOINTED: Chief Alfred M. Jacocks, Jr. Unexpired term through 06/30/2011 CHESAPEAKE BA Y ALCOHOL SAFETY PROGRAM Voting: 11-0 Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None II III II May 26. 2009 - 73 - Item N. 5. APPOINTMENTS ITEM # 58887 Upon NOMINATION by Vice Mayor Jones, City Council REAPPOINTED: Robert M. Dyer Barbara M. Henley James K. Spore 2 year term 07/01/2009 - 06/30/2011 HAMPTON ROADS PLANNNING DISTRICT COMMISSION Voting: 11-0 Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None III II May 26, 2009 - 74 - Item N. 6. APPOINTMENTS ITEM # 58888 Upon NOMINATION by Vice Mayor Jones, City Council REAPPOINTED: Wanda J. Cooper Delceno C. Miles Prescott Sherrod Edwin G. Tirona John M. Williams APPOINTED: Mark J. Lilly 2-year term 06/01/2009 - 05/31/2011 MINORITY BUSINESS COUNCIL Voting: 11-0 Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Dieze!, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None II III II May 26, 2009 - 75 - Item N. 7. APPOINTMENTS ITEM # 58889 Upon NOMINATION by Vice Mayor Jones, City Council REAPPOINTED: Michael E. Sawyer 4 year term, 07/01/2009 - 06/30/2013 TIDEWATER REGIONAL GROUP HOME COMMISSION Voting: 11-0 Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None III II May 26, 2009 II III II - 76- Item V. Q. ADJOURNMENT ITEM # 58890 Mayor William D. Sessoms, Jr. DECLARED the City Council Meeting ADJOURNED at 6:29 P.M. ~ ~ ~d' ~~___-P'_:_L'Y?J /~ Beverly o.Hooks, CMC Chief Deputy City Clerk (2~?!??~ :;;;;;;:;~ges Fraser, MMC City Clerk William D. Sessoms, Jr. Mayor City of Virginia Beach Virginia May 26, 2009 II III - 76 - Item V. Q. ADJOURNMENT ITEM # 58890 Mayor William D. Sessoms, Jr. DECLARED the City Council Meeting ADJOURNED at 6:29 P.M. ~___i?~___tja/'" Beverly 0. Hooks, CMC Chief Deputy City Clerk /2_'7-7(-1-: -k2;J~ ~r::::ser, MMC City Clerk William D. Sessoms, Jr. Mayor City of Virginia Beach Virginia May 26, 2009