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Home My WebLink AboutMARCH 23, 2010CITY OF VIRGINIA BEACH "COMMUNITY FOR A LIFETIME" CITY COUNCIL MAYOR W/LLIAlvl D. SESSOMS, JR, At-Large VICE MAYOR LOUIS R. JONES, Bayside -District 4 RITA SWEET BELLITTO, Ar-Large GLENN R DAV/S, Rose Hall -District 3 WILLIAM R. DeSTEPH, At-Large HARRY E. DIEZEL, Kempsville -District 2 ROBERT M DYER, Centerville -District l BARBARA M HENLEY, Princess Anne -District 7 JOHN E. UHRIN, Beach -District 6 ROSEMARY WILSON, At-Large JAMES L. WOOD, Lynnhaven -District 5 CITY COUNCIL APPOINTEES CITYMANAGER -JAMES K. SPORE CITYATTORNEY - MARK D. STILES CITYASSESSOR - JERALD BANAGAN CITYAUDITOR--LYNDONS. REM/AS CITYCLERx-RUTHHODGESFRASERMMC CITY COUNCIL AGENDA 23 MARCH 2010 I. CITY MANAGER'S BRIEFINGS: -Conference Room - CITYHALL BUILDING 2401 COURTHOUSE DRIVE VIRGINIA BEACH, VIRGINIA 23456-8005 PHONE: (757) 385-4303 FAX (757) 385-5669 E- MAIL: Ctycncl@vbgov.com 4:00 PM A. NEIGHBORHOOD PRESERVATION PATTERN BOOK Sharon Prescott, Housing Development Administrator -Housing and Neighborhood Preservation Olin Walden, Housing Program Coordinator -Housing and Neighborhood Preservation 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 5:00 PM C. RECESS TO CLOSED SESSION V. FORMAL SESSION -City Council Chamber - 6:00 PM A. CALL 7~0 ORDER -Mayor William D. Sessoms, Jr. B. INVOCATION: Reverend Ted Richardson Christ Gospel Church C. PLEDGE; OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA D. ELECTRONIC ROLL CALL OF CITY COUNCIL E. CERTIFICATION OF CLOSED SESSION F. MINUTES 1. INFORMAL and FORMAL SESSIONS March 9, 2010 G. FORMAL SESSION AGENDA H. PUBLIC COMMENT 1. MONUMENT AND LED SIGNS I. CONSENT AGENDA J. ORDINAIVCES/RESOLUTIONS 1. Ordinances to AMEND the City Code: a. § 23-11.3 re directing the beam from a laser pen, flashlight or similar device into the eyes of another person b. § 23-39 re cutting, trimming, damaging, defacing or removing of trees, shrubs or other vegetation on City property without written authorization of the Landscape Services Administrator or City Arborist c. §23-50 re penalty for failure to comply with cutting excessive growth of weeds or grass d. §23-50.1 re penalty for failure to comply in the removal of certain trees e. § 23-61 re electronic view at adult movie arcades 2. Ordinance to AUTHORIZE the General Obligation Guazanty by the City of the timely payment of a portion of principal of and interest of certain guaranteed Subordinated Revenue Bonds and Senior Subordinated Revenue Bonds previously issued by the Southeastern Public Service Authority (SPSA) of Virginia 3. Resolution recognizing Captain William "Bill" Crow for his "Joint Basing" of the Naval Amphibious Base Little Creek and Fort Story now known as the "Joint Expeditionary Base Little Creek-Fort Story" 4. Resolution to RE-ESTABLISH the Clean Community Commission as an advisory Commission to City Council Resolution to RENAME the Animal Control Building to the Virginia Beach Animal Care and Adoption Center (presented at City Council's Workshop Mazch 16, 2010) K. 6. Ordinance to AUTHORIZE the City Manager to EXECUTE the Virginia Beach Field House Emergency Shelter Agreement re an emergency shelter in the event of a natural disaster 7. Ordinance to AUTHORIZE existing temporary encroachments into a portion of City- owned right-of--way for JANE W. SEINHILBER to maintain a serpentine brick wall, four (4) brick columns and landscape boulders at 4821 Lauderdale Avenue. DISTRICT 4 - BAYSIDE 8. Ordinances to ACCEPT and APPROPRIATE: a. $240,000 reimbursement from the State Compensation Board to the Clerk of the Circuit Court's FY 2009-10 Technology Trust Fund b. $24,450 Grant Funds from Smart Beginnings South Hampton Roads to the Library Department's FY 2009-10 Operating Budget PLANNING 1. Application of TAMI WALKER MOOK for a Conditional Use Permit re small engine repair at 501 Virginia Beach Boulevard. DISTRICT 6 -BEACH DEFERRED RECOMMENDATION FEBRUARY 23, 2010 APPROVE 2. Application of ROBERT RAMSAY for a Conditional Use Permit re a firewood preparation at 3025 New Bridge Road. DISTRICT 7 -PRINCES ANNE S'TAFF'S RECOMMENDATION APPROVE PLANNING COMMISSION'S RECOMMENDATION DENY 3. Ordinance to AMEND § 111 and ADD §217 of the City Zoning Ordinance (CZO) re requirements for monument and electronic display signs (LED) (deferred Februazy 9 azid March 9, 2010). RECOMMENDATION L. APPOINTMENTS SOCIAL SERVICES BOARD M. UNFINISIIED BUSINESS N. NEW Bi;'SINESS O. ADJOUF;NMENT DEFER TO MARCH 30, 2010 FY 2010-2011 Budget Schedule DATE TIME :EVENT LOCATION March 30 ~ 4:00-6:00 PM ;City Manager Presents -City Council Conference Special Formal ~ Budget Room Session Apri18 _.. 4.00-Ei.00PM ._I ;Workshop Apri113 1 hr before Informal :Workshop April 20 400-E:00 PM ~ Workshop April 22 6 00 PM ;Public Hearing April 27 1 hr before Informal ;Public Hearing April 27 6.00 PM 'Public Hearing May 4 _ ' 4:00-E~ 00 PM :Workshop May 11 6:OOPIIA `ADOPTION City Council Conference Room City Council Conference Room City Council Conference Room __ _ . Tallwood High School City Council Conference Room City Council Chamber _ __. City Council Conference Room City Council Chamber cITY cou~clL MID-YEAR RETREAT *~~~~~~ if }~~c~u are phy~sicatly disabled or visually impaired and need assistance at this meeting, ,lease call the CITY CLERi~'S OFFICE at 3$5-~iM3 I. CITY MANAGER'S BRIEFINGS: -Conference Room - 4:00 PM A. NEIGHBORHOOD PRESERVATION PATTERN BOOK Sharon Prescott, Housing Development Administrator -Housing and Neighborhood Preservation Olin Walden, Housing Program Coordinator -Housing and Neighborhood Preservation B. INTERIM FINANCIAL STATEMENT Patricia Phillips, Director -Finance II. CITY COUNCIL COMMENTS III. CITY COUNCIL AGENDA REVIEW IV. INFORMAL SESSION -Conference Room - 5:00 PM A. CALL TO ORDER -Mayor William D. Sessoms, Jr. B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION V. FORMAL SESSION -City Council Chamber - 6:00 PM A. CALL TO ORDER -Mayor William D. Sessoms, Jr. B. INVOCATION: Reverend Ted Richardson Christ Gospel Church C. PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA D. ELECTRONIC ROLL CALL OF CITY COUNCIL E. CERTIFICATION OF CLOSED SESSION F. MINUTES 1. INFORMAL and FORMAL SESSIONS March 9, 2010 G. FORMAL SESSION AGENDA ~r~n1~t#tnn CERTIFICATION OF CLOSED SESSION VIRGINIA BEACH CITY COUNCIL WHEREAS: The Virginia Beach City Council convened into CLOSED SESSION, pursuant to the affirmative vote recorded here 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. NOW, THEREFORE, BE IT RESOLVED: That the Virginia Beach City Council hereby certifies that, to the best of each member's knowledge, (a) only public business matters lawfully exempted from Open Meeting requirements by Virginia Law were discussed in Closed Session to which this certification resolution applies; and, (b) only such public business matters as were identified in the motion convening this Closed Session were heard, discussed or considered by Virginia Beach City Council. H. PUBLIC COMMENT 1. MONUMENT AND LED SIGNS ~c+u ee,~ ~.~+ w ...yiih o _ '~ 3 ~ ~w:s~ ~; - _, ~~., CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Amend City Code § 23-50.1 Pertaining to the Removal of Certain Trees MEETING DATE: March 23, 2010 ^ Background: The City Code provides that if a tree, by reason of disease, death, injury, infirmity or other condition, presents a danger to property or the health or safety of people or other trees or vegetation, the City shall serve notice on the owner of the land that the tree must be removed within a reasonable period of time (not sooner than seven days from the notice but no later than thirty days from the notice). If the danger posed by the tree can be eliminated by removing only a portion or portions of the tree, then the notice will specify that only those portions must be removed. ^ Considerations: Currently, failure to remove such a tree (or portions thereof) within the time prescribed by the notice is punishable as a Class 4 misdemeanor (conviction of which is subject to a fine of up to $250). This ordinance would instead provide that failure to comply with the notice shall be punishable by a civil penalty not to exceed $250. The Code would continue to provide that the City may remove such a tree (or portions thereof) at the property owner's expense, along with an administrative fee of $150. ^ Public Information: This item will be advertised in the same manner as other agenda items. ^ Attachments: Ordinance Requested by Councilmember DeSteph REQUESTED BY COUNCILMEMBER DeSTEPH 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 AN ORDINANCE TO AMEND CITY CODE §23-50 PERTAINING TO REMOVAL OF CERTAIN TREES SECTION AMENDED: §23-50.1 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That Section §23-50.1 of the City Code is hereby amended and reordained to read as follows: Sec. 23-50.1. Removal of certain trees. (a) Upon determination by the code enforcement administrator or the city arborist, or the officers or employees of their respective departments, that there exists upon any land or premises within the city any tree which, by reason of disease, death, injury, infirmity or other condition, presents a danger to property or to the health and safety of persons or other trees or vegetation, notice shall be served upon the owner of such land or premises or his or her agent or upon the occupant thereof to cause such tree to be removed within a reasonable period of time, not less than seven (7) days nor more than thirty (30) days, specified in such notice. If the danger presented by such tree may be eliminated by the removal of a portion of such tree, the notice shall specify the portion or portions of the tree to be so removed. For purposes of this section, the term "tree" shall be construed to include the plural of the term. (b) Service of the notice provided for herein shall be by personal service or by certified or registered mail. In the event the land or premises are vacant and the owner thereof or his or her agent cannot be found by the exercise of due diligence, such notice shall be given by certified or registered mail to the last- known residence or post office box address of the owner and, in addition thereto, shall be posted in a conspicuous place upon the premises. Service of such notice upon one owner or occupant in any manner provided for herein shall be sufficient in the event such land or premises is owned or occupied jointly. (c) Failure to comply with the terms of a notice issued and served as provided in this section within the time prescribed by such notice shall be punishable ~~-a-Mass 4~Q~T~T ~ a civil penalty not to exceed $250.00. In addition to any fire civil penalty imposed hereunder, the code enforcement administrator may, in the name of the city, institute legal action to enjoin the continuing violation of this section and may remove or contract for the removal of any such tree or portion thereof, in which event the cost of such removal, including an administrative fee in the amount of one hundred fifty dollars ($150.00), shall be charged to the person or persons named in the notice and collected by action at law or as 45 delinq~,aent real estate taxes are collected, or both. The remedies provided for 46 herein shall be cumulative in nature. 47 48 (d) The provisions of this section shall not apply to any parcel of land greater than 49 one a~:.re in size which is located in an agricultural zoning district and used 50 principally for agricultural or horticultural purposes. 51 52 The effective date of this ordinance shall be July 1, 2010. 53 54 Adopted by the Council of the City of Virginia Beach, Virginia, on the day 55 of , 2010. APPROVED ~4S TO LEGAL SUFFICIENCY: 7 ~~- ~, City Attorney': Office CA11325 R-3 January 29, 2011) rr~~.n a~Ch a ~+ 4 ~~~ .... '...- S~ t.s' ~f~ ~~~% CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Amend Section 23-61 of the City Code Pertaining to Adult Movie Arcades MEETING DATE: March 23, 2010 ^ Background: In 1993 Council passed an ordinance prohibiting the operation of "movie arcades" that operated "film or videotape viewing devices" where the viewing area was limited to no more than 5 people. With a careful reading of the ordinance, one can ascertain that this ordinance pertains to what is commonly known as a "peep show." ^ Considerations: This amendment clarifies that its provisions specifically apply to adult-type viewing venues, commonly known as "peep shows", and updates the language of the ordinance in keeping with technological advances that have taken place since this ordinance passed in 1993. Further, it removes the 30-day "grace period" provision that was applicable when the ordinance was originally enacted. ^ Public Information: Public information will be handled through the normal Council agenda process. ^ Attachments: Ordinance Requested by Councilmember DeSteph 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 Requested by Councilmember DeSteph AN ORDINANCE TO AMEND SECTION 23-61 OF THE CITY CODE PERTAINING TO ADULT MOVIE ARCADES SECTION AMENDED: § 23-61 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That Section 23-61 of the Code of the City of Virginia Beach, Virginia, is hereby amended and reordained to read as follows: Sec. 23-61. Adult movie arcades. (a) For purposes of this section, the following words and phrases shall be construed as follows: (1) Adult Movie arcade. The term "adult movie arcade" means any business wherein an electronic viewing device is operated, generally for the purpose of viewing sexually oriented images. ~~ (2) ~i~-ef-videotape Electronic viewing device. The term #~-ef-v+deeta~e electronic viewing device" a~eafls includes but is not limited to any electrical or mechanical device in a business, which projects or displays any live feed, digital image, film, videotape or reproduction into a viewing area obscured by a curtain, door, wall, or other enclosure which is designed for occupancy by no more than five (5) persons, and is not visible from a continuous main aisle. (3) Viewing area. The term "viewing area" means the area where a patron or customer would ordinarily be positioned while watching a-#il e images from an electronic viewing device. (b) It shall be unlawful for any person in the city to own, maintain or operate, for himself or as an employee or agent an adult movie arcade where the viewing area is not visible from a continuous main aisle and is obscured by any curtain, door, wall, or other enclosure. (c) Any person who violates the provisions of this section shall be guilty of a Class 1 misdemeanor. COMMENT 46 This amendment clarifies that its provisions specifically apply to adult-type viewing venues, 47 commonly known as "peep shows", and updates the language of the ordinance in keeping with 48 technological ad~~ances that have taken place since this ordinance passed in 1993. Further, it 49 removes the 30-d,ay "grace period" provision that was applicable when the ordinance was originally 50 enacted. 51 52 Adopted by the City Council of the City of Virginia Beach, Virginia, on this 53 day of , 2010. APPROVED A:i TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: City Atto 's ce R-4 March 10, 2010 CA11448 N.~,,,~ .o ~~ 2 f~ ~ ~ ~) CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Amend Section 23-11.3 of the City Code Pertaining to Directing Beam of a Laser Pen, Flashlight or Similar Device Into Eyes of Another Person or Law-Enforcement Officer MEETING DATE: March 23, 2010 ^ Background: City Code Section 23-11.3, which was first enacted in August, 1998, makes it unlawful to point a laser type light into anyone's eyes, or to point one generally at a law enforcement officer. Today's lasers are very powerful and may cause blindness if pointed into a person's eyes. ^ Considerations: Because of the dangers associated with modern lasers, the Code's prohibition against pointing a laser into anyone's eye is amended to make this act a Class 1 misdemeanor instead of a Class 2 misdemeanor. The offense of generally pointing a laser at a law enforcement officer (as opposed to into his/her eyes) remains a Class 2 misdemeanor as required by the state code. A Class 1 misdemeanor is punishable by confinement in jail for not more than one year and/or a fine of not more than $2500, and a Class 2 misdemeanor is punishable by confinement in jail for not more than six months and/or a fine of not more than $1000. ^ Public Information: Public information will be handled through the normal Council agenda process. ^ Attachments: Ordinance Requested by Councilmember DeSteph ___.. __........ .}ry.~.,{E.~n..v.-..wa.4wsk 1. I . 1 Requested by Councilmember DeSteph 2 3 AN ORDINANCE TO AMEND SECTION 23- 4 11.3 OF THE CITY CODE PERTAINING TO 5 DIRECTING BEAM OF A LASER PEN, g FLASHLIGHT OR SIMILAR DEVICE INTO 7 EYES OF ANOTHER PERSON OR LAW- S ENFORCEMENT OFFICER 9 10 SECTION AMENDED: § 23-11.3 11 12 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 13 BEACH, VIRGINIA: 14 15 That Section 23-11.3 of the Code of the City of Virginia Beach, Virginia, is hereby 16 amended and reordained to read as follows: 17 18 Sec. 23-11.3. Directing beam of laser pen, flashlight or similar device into eyes of 19 another person; pointing laser at law-enforcement officer. 20 21 (a) It shall be unlawful and a Class ~1 misdemeanor for any person to 22 intentionally, and without good cause, direct the beam from a laser pen, flashlight or 23 similar device into the eyes (or eye) of another person. 24 25 (b) It shall be unlawful and a Class 2 misdemeanor for any person, knowing or 26 having reason to know another person is alaw-enforcement officer as defined in Code 27 of Virginia section 18.2-57, a probation or parole officer appointed pursuant to Code of 28 Virginia section 53.1-143, a correctional officer as defined in Code of Virginia section 29 53.1-1, or a person employed by the state department of corrections directly involved in 30 the care, treatment or supervision of inmates in the custody of the department engaged 31 in the performance of his public duties as such, to intentionally project at such other 32 person a beam or a point of light from a laser, a laser gun sight, or any device that 33 simulates a laser. COMMENT Because of the dangers associated with today's lasers, paragraph (a) is amended to make the pointing of a laser into the eye of another a Class 1 misdemeanor. Adopted by the City Council of the City of Virginia Beach, Virginia, on this day of , 2010. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: City Att y's O ' e R-3 March 9, 2010 CA11445 '~ i o~ ~. 2~ i3y y ~f>j ~'l.~ ~MM~~.J~ ~~ CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Amend Section 23-39 of the City Code Pertaining to Cutting of Trees, Shrubs or Other Vegetation Upon City Property MEETING DATE: March 23, 2010 ^ Background: City Code Section 23-39 makes the unauthorized act of cutting, trimming, damaging, defacing or removing any tree, shrub or other vegetation upon City property a Class 1 misdemeanor. The punishment for a Class 1 misdemeanor is up to one year in jail and/or up to a $2,500 fine. ^ Considerations: This amendment would change the offense of cutting, trimming, damaging, defacing or removing trees, shrubs and other vegetation on City property from a jailable, Class 1 misdemeanor to a non jailable, Class 3 misdemeanor ($500 maximum fine). Further, this amendment provides for a punishment that mirrors the state code provision prohibiting such acts on lands maintained by the Commonwealth. ^ Public Information: Public information will be handled through the normal Council agenda process. ^ Attachments: Ordinance Requested by Councilmember DeSteph 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 Requested by Councilmember DeSteph AN ORDINANCE TO AMEND SECTION 23-39 OF THE CITY CODE PERTAINING TO CUTTING OF TREES, SHRUBS OR OTHER VEGETATION UPON CITY PROPERTY SECTION AMENDED: § 23-39 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That Section 23-39 of the Code of the City of Virginia Beach, Virginia, is hereby amended and reordained to read as follows: Sec. 23-39. Cutting, etc., of trees, shrubs or other vegetation upon city property. (a) It shall be unlawful and a Class ~3 misdemeanor for any person to cut, trim, damage, deface or remove any tree, shrub or other vegetation upon city property, or to cause, procure or direct the cutting, trimming, damaging, defacing or removal of any such tree, shrub or other vegetation, without the written authorization of the landscape services administrator or the city arborist. If any person shall commit any of the acts prohibited herein upon more than one tree or shrub, a separate violation of this section shall be deemed to have occurred with respect to each such tree or shrub. (b) The provisions of this section shall not apply to any cutting or trimming of vegetation required by section 23-50 of this Code or to routine trimming of shrubbery upon city property, and shall not apply to city personnel engaged in the performance of their duties. COMMENT This amendment changes the offense of cutting, trimming, damaging, defacing or removing trees, shrubs and other vegetation on city property from a jailable, Class 1 misdemeanor to a non- jailable, Class 3 misdemeanor ($500 maximum fine). Further, this amendment provides for a punishment that mirrors the state code provision prohibiting such acts on lands maintained by the Commonwealth. Adopted by the City Council of the City of Virginia Beach, Virginia, on this day of , 2010. _~,, APPROVED A~> TO CONTENT: Police ~partm~ent CA11447 R-3 March 9, 2010 APPROVED AS TO LEGAL SUFFICIENCY: City Att y's 'ce Nu 4:~ 04 +,,'~+y7~y ~~ '" =~'S 4;,;~~;, .~- CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Amend City Code § 23-50 Pertaining to Excessive Growth of Weeds or Grass MEETING DATE: March 23, 2010 ^ Background: City Code Section 23-50 provides that upon determination there exists on any land or premises within the city, including the area between such land or premises and the curb line, any grass, weeds, brush or similar vegetation in excess of ten (10) inches in height, notice shall be served on the owner of such land or premises or his or her agent, or on the occupant thereof, or both, to cause such grass, weeds, brush or similar vegetation to be cut and removed from such land or premises within seven (7) days from the date of such notice. This ordinance was deferred by City Council twice (January 26, 2010 until February 23, 2010 and February 23, 2010 until March 23, 2010). ^ Considerations: Currently, failure to comply with cutting excessive weeds or grass after a notice is issued and served is punishable as a Class 2 misdemeanor (conviction of which is punishable by confinement in jail for not more than six months and/or a fine of up to $1000). Convictions of certain misdemeanors are reportable to the statewide Central Criminal Records Exchange and are included in criminal history reports, but violations of the City's excessive grass and weeds ordinance is not reportable to the state and thus is not included in statewide or national criminal history reports. Nevertheless, a conviction is a matter of record with the courts, and a conviction of this section remains a part of the Virginia Courts Case Information System for ten years from the date of conviction. The Virginia Courts Case Information System is an online database searchable by anyone with Internet access. Finally, applicants for employment or professional licensure, or those who seek to adopt children or become a foster parent, for example, may be required to disclose whether they have ever been convicted of a crime. All misdemeanors are crimes, regardless of whether they are reportable to statewide central database, so such applicants would be required to disclose a conviction of this code provision. This ordinance would provide that failure to comply with notices for excessive weeds or grass shall be punishable by a Class 4 misdemeanor (conviction of which is punishable by a maximum fine of up to $250 with no possible jail time). The Code would continue to provide that the City may remove weeds and grass at the property owner's expense, along with an administrative fee of $150. The effective date of the ordinance shall be July 1, 2010. ^ Public Information: This item will agenda items. This item was previousl February 23, 2010 City Council agendas. ^ Attachments: Ordinance be advertised in the same manner as other y advertised in the January 26, 2010 and Requested by Councilmember DeSteph REQUESTED BY COUNCILMEMBER DeSTEPH 1 AN ORDINANCE TO AMEND CITY CODE §23-50 2 PERTAINING TO EXCESSIVE GROWTH OF 3 WEEDS OR GRASS 4 5 SECTION AMENDED: §23-50 6 7 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 8 BEACH, VIRGINIA: 9 10 That Section §23-50 of the City Code is hereby amended and reordained to read 11 as follows: 12 13 Sec. 23-50. Accumulations of trash, garbage, etc., or excessive growth of weeds 14 or grass. 15 16 (a) Except as provided in subsection (e) hereof, upon determination by the 17 director of housing and neighborhood preservation, the code enforcement administrator, 18 or any inspector of the department of housing and neighborhood preservation, whether 19 temporarily or permanently employed as such, that there exists upon any land or 20 premises within the city, including the area between such land or premises and the curb 21 line, any trash, garbage, refuse, litter or similar substances, except as may be placed 22 thereon for purposes of collection in accordance with chapter 31 of this Code, notice 23 shall be served on the owner of such land or premises or his or her agent, or on the 24 occupant thereof, or both, to cause such trash, garbage, refuse, litter or similar 25 substances to be removed from such land or premises within seven (7) days from the 26 date of such notice. 27 28 (b) Except as provided in subsections (e) and (f) hereof, upon determination 29 by the director of housing and neighborhood preservation, the code enforcement 30 administrator, or any inspector of the department of housing and neighborhood 31 preservation, whether temporarily or permanently employed as such, that there exists 32 on any land or premises within the city, including the area between such land or 33 premises and the curb line, any grass, weeds, brush or similar vegetation in excess of 34 ten (10) inches in height, notice shall be served on the owner of such land or premises 35 or his or her agent, or on the occupant thereof, or both, to cause such grass, weeds, 36 brush or similar vegetation to be cut and removed from such land or premises within 37 seven (7) days from the date of such notice. 38 39 (c) Service of the notice provided for in subsections (a) and (b) shall be by 40 first-class mail, personal delivery or posting in a conspicuous place upon the land or 41 premises; provided, however, that if the land or premises are unoccupied and the owner 42 or his or her agent cannot be found by the exercise of due diligence or are unknown, 43 such notice shall be sufficient against the owner if given by first-class mail to the 44 owner's last known mailing address and posted in a conspicuous place upon the land or 45 premises. The' code enforcement administrator and inspectors of the department of 46 housing and neighborhood preservation are hereby authorized to deliver or post such 47 notices. One notice (as provided for in subsection (b)) per growing season is hereby 48 deemed reasonable notice to owners of vacant developed or undeveloped property to 49 authorize the city to remove or contract for the removal of any excessive growth of 50 grass, weeds, brush or similar vegetation for the entire growing season. 51 52 (d) Failure to comply with the terms of a notice issued and served as provided 53 in this section within the time prescribed in such notice shall constitute a Class ~ 4 54 misdemeanor. In addition to any penalties imposed hereunder, the city may institute 55 legal action to enjoin the continuing violation of this section and may remove or contract 56 for the remov~~l of such trash, garbage, refuse, litter or similar substances or grass, 57 weeds, brush or similar vegetation, in which event the cost and expenses thereof, 58 including an administrative fee in the amount of one hundred fifty dollars ($150.00), 59 shall be chargE:able to and paid by the owner or occupant of the land or premises. Any 60 such charge which is not paid within thirty (30) days of the date on which it is billed to 61 the owner of such land or premises shall constitute a lien upon the property and may be 62 collected in any manner provided by law for the collection of taxes; provided, however, 63 that no such lien shall be valid against any owner of land or premises who was not 64 served with they notice prescribed in subsection (a) or (b) hereinabove, as the case may 65 be. 66 67 (e) The provisions of this section shall not apply to any parcel of land greater 68 than one (1) acre in size which is (1) located in an agricultural zoning district or enrolled 69 in the land use assessment program and (2) used principally for agricultural, silvicultural 70 or horticultural (purposes. 71 72 (f) Tl~e provisions of subsection (b) shall not apply to the following areas: 73 74 (1) Portions of undeveloped lots, parcels or tracts of land which are not 75 located within one hundred fifty (150) feet of a paved road; 76 (2) Portions of undeveloped lots, parcels or tracts of land which are not 77 located ~nrithin one hundred fifty (150) feet of any other property, developed or 78 undeveloped, located in a Residential, Apartment, Business, Office, Resort 79 Tourist or Industrial Zoning District; 80 (3) Portions of undeveloped lots, parcels or tracts of land which are 81 inaccessible to power mowing equipment; 82 (4) Areas required by the Chesapeake Bay Preservation Area 83 Ordinance [appendix F] or the Southern Watersheds Management Ordinance 84 [appendixx G] to be vegetated; 85 (5) Vegetated wetlands, as defined in the Wetlands Zoning ordinance 86 [appendi:~c A, article 14]; 87 (6) Nontidal wetlands located within Resource Protection Areas; 88 (7;) Coastal primary sand dunes; 89 (8;1 State-designated Wildlife Habitat Areas; 90 (9) Banks of detention ponds, streams, and other bodies of water, 91 natural or manmade; 92 (10) Banks of drainage easements; g3 (11) Wooded areas, including understory vegetation; and 94 (12) Any other area required to be vegetated by reason of the 95 application of the City Zoning Ordinance [appendix A], Subdivision Ordinance 96 [appendix B], Site Plan Ordinance [appendix C], Stormwater Management 97 Ordinance [appendix D], Chesapeake Bay Preservation Area Ordinance 98 [appendix F], Southern Watersheds Management Ordinance [appendix G], or 99 any other ordinance or provision of law. 100 101 102 103 104 105 106 107 108 109 110 (g) As used in this section, the term "developed" shall refer to any lot, parcel or tract of land upon any portion of which there has been placed any building, structure or other improvement or upon any portion of which there has been any land-disturbing activity, including, without limitation, paving, filling, grading, dredging, clearing or excavating. The effective date of this ordinance shall be July 1, 2010. Adopted by the Council of the City of Virginia Beach, Virginia, on the of _ , 2010. APPROVED AS TO LEGAL SUFFICIENCY: City Attorney's Office day CA11366 R-3 March 8, 2010 .,,i yy ~~ Z~ t;...-..- --~~ '~4 u.~aaM^J" ~Ji `ti. J CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Authorize the General Obligation Guaranty by the City of the Timely Payment of a Portion of Principal of and Interest on Certain Guaranteed Subordinated Revenue Bonds and Senior Subordinated Revenue Bonds Previously Issued by the Southeastern Public Service Authority of Virginia MEETING DATE: March 23, 2010 ^ Background: The Southeastern Public Service Authority of Virginia ("SPSA") has total debt outstanding of approximately $218.8 million, including approximately $140.7 million in bonds owed to the Virginia Resources Authority ("VRA"). SPSA has entered into an agreement with Wheelabrator Technologies, Inc. in connection with the potential sale (the "WTE Sale") of SPSA's RDF Plant and Power Plant, for $150 million. A portion of the proceeds of this sale will be applied to payment of SPSA debt. As a condition to VRA's consent for the Wheelabrator transaction, VRA is requiring the remaining amount owed to VRA be severally guaranteed by each member community, including Virginia Beach. The amount to be guaranteed by each member reflects a proportional share of the total remaining VRA debt principal of no more than $50 million. For Virginia Beach, this principal amount is $15,170,000, which is 30.34% of $50 million. It is anticipated the total outstanding amount of VRA debt principal will be approximately $47 million, of which $14.25 will be the pro rata portion guaranteed by the City. ^ Considerations: The guaranty required by VRA includes a pledge of the full faith and credit of the City. Such a pledge will require the City to treat this guaranty in the same manner as general obligation debt, and the amount of the guaranty will be included in the City's debt statement. However, the General Assembly enacted special legislation in 2003 providing that a guaranty of this type shall not be considered City debt for purposes of Virginia Constitution and City Charter debt limitations. This guaranty would be subject to several conditions, including SPSA completing its due diligence on the Wheelabrator transaction (e.g. IRS Closing Agreement, volume cap allocation, etc.), unanimous approval of a guaranty by all other SPSA member communities, and payment in full of SPSA's indebtedness to Virginia Beach pursuant to the Forbearance Agreement. Additionally, the attached ordinance requires the approval of the Guaranty Agreement by the City Attorney prior to execution by the City Manager. Last, while the City is guarantying a maximum principal amount of $15,170,000 the total value of this guaranty, after including interest, will exceed the principal amount. However, the City would pay on this guaranty only after SPSA had failed to make a payment, and SPSA is required by law (Va. Code § 15-5136) to charge fees in an amount sufficient to pay its debts. In addition to the Guaranty Agreement, a Reimbursement Agreement will be executed by each locality which obligates SPSA to repay each locality should there be a payment made on the Guaranty. ^ Public Information: Because the guaranty has many of the same legal characteristics of general obligation debt, this item was advertised for two consecutive weeks in the \/irginia Pilot (February 18th and February 25th) with a public hearing held on at the Man~h 9th Council Formal Session. This item will also be part of the normal agenda advertising process. ^ Alternatives: No prorata guarantee of SPSA's VRA debt will result in failure to receive VRA approval of the Wheelabrator transaction, which will result in higher tipping fees and would also delay payment to the City of the amounts attributable to the forbearance acareement. ^ Recommendations: Approve the attached ordinance. ^ Attachments: Ordinance; Draft of the Guaranty and Reimbursement Agreements Recommended Action: Approval Submitting DE~partment/Agency: Department of Finance City Manager: ~ ~ ~~ AN ORDINANCE TO AUTHORIZE THE GENERAL OBLIGATION GUARANTY BY THE CITY OF THE TIMELY PAYMENT OF A PORTION OF PRINCIPAL OF AND INTEREST ON CERTAIN GUARANTEED SUBORDINATED REVENUE BONDS AND SENIOR SUBORDINATED REVENUE BONDS PREVIOUSLY ISSUED BY THE SOUTHEASTERN PUBLIC SERVICE AUTHORITY OF VIRGINIA WHEREAS, the Southeastern Public Service Authority of Virginia ("SPSA") was created pursuant to the Virginia Water and Sewer Authorities Act by its member jurisdictions (the "Owner Communities"), which are the Cities of Chesapeake, Franklin, Norfolk, Portsmouth, Suffolk and Virginia Beach, and the Counties of Isle of Wight and Southampton; WHEREAS, SPSA is currently indebted to the Virginia Resources Authority ("VRA") in the amount of approximately $140.7 million on bonds, consisting of guaranteed subordinated revenue bonds and senior subordinated revenue bonds, issued to finance and refinance various capital expenditures (collectively, the "SPSA Local Bonds"), including $71,985,000 in SPSA Local Bonds (the "2009 SPSA Local Bonds") purchased by VRA on June 17, 2009 to restructure and refund certain outstanding SPSA Local Bonds as well as certain SPSA bonds not held by VRA; WHEREAS, SPSA has entered into a purchase and sale agreement with Wheelabrator Technologies, Inc. ("Wheelabrator") in connection with the potential sale (the "WTE Sale") of SPSA's RDF Plant and Power Plant (collectively, the "WTE Facilities"); WHEREAS, a portion of the proceeds of the WTE Sale are expected to be applied to the prepayment of a portion of the SPSA Local Bonds; WHEREAS, Section 6.1(b) of the Financing Agreement entered into by VRA and SPSA in connection with the 2009 SPSA Local Bonds (the "Financing Agreement") provides that SPSA may not sell, exchange, lease (as lessor), pledge, encumber, cease to operate, enter into a management agreement to operate or otherwise dispose of or alienate in whole or in part either the Disposal System (including the RDF Plant) or the Power Plant System (including the SPSA Power Plant, all as defined in the Financing Agreement) without the prior written consent of VRA subject to certain limited exceptions not pertinent to this Resolution; WHEREAS, as a condition to VRA's consent to the WTE Sale, VRA has required that the timely payment of principal of and interest on the SPSA Local Bonds remaining after the WTE Sale (the "Remaining SPSA Local Bonds") be severally guaranteed by a moral obligation pledge of Southampton and the general obligation pledge of the other Owner Communities, including the City of Virginia Beach, Virginia (the "City"); WHEREAS, the terms of such guarantees are set forth in a Guaranty Agreement between the Owner Communities, U.S. Bank National Association, as trustee (the "Trustee") and SPSA (the "Guaranty Agreement"), the form of which has been presented to this meeting; \\10697185\3 WHERIEAS, the terms of the repayment to the Owner Communities of any payments made by the Owner Communities under the Guaranty Agreement are set forth in a Reimbursement Agreement among SPSA and the Owner Communities (the "Reimbursement Agreement" and, together with the Guazanty Agreement, the "Guaranty Documents"), the form of which has been presented to this meeting; WHERI~AS, Chapter 872 of the 2003 Acts of the Assembly provides that a City contractual obligation to make payments over a period of more than one year to SPSA to guarantee SPSA.'s bond obligations shall not be considered a debt of the City for the purpose of Virginia Constitution or City Charter debt limitations; WHEREAS, the maximum principal amounts provided herein do not include amounts attributable to i~lterest, and the total portion guazanteed by the City -principal plus interest - could exceed $15, 170,000 and $50,000,000, respectively; WHEREAS, the City Council of the City (the "Council") has determined that it is advisable to pledge the full faith and credit of the City to severally guazanty the timely payment of a portion of the principal of and interest on the Remaining SPSA Local Bonds pursuant to the Guaranty Documents; and WHER>E;AS, a public hearing on the guazanty of the City was held on Mazch 9, 2010 after notice was published in accordance with the requirements of Section 15.2-2606 of the Code of Virginia of 1550, as amended. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BE~~CH, VIRGINIA THAT: 1. Authorization of Guazanty. The Council hereby determines that it is advisable and ire the best interest of the City to severally guaranty the timely payment of a portion of the principal of and interest on the Remaining SPSA Local Bonds, subject to the conditions outlir.~ed in Section 3, in the maximum principal amount of $15,170,000 pursuant to the Guaranty D~~cuments; provided, however, the principal amount of the Remaining SPSA Local Bonds shall not exceed $50,000,000. 2. Pledge of Full Faith and Credit. The full faith and credit of the City are hereby irrevocably pledged for the payment when due of any amounts payable by the City under the Guazanty Agreement. The Council shall levy and collect annually, at the same time and in the same manner as other taxes of the City are assessed, levied and collected, a tax upon all taxable property within the City, over and above all other taxes, authorized or limited by law and without limitation as to rate or amount, sufficient to pay when due any amounts payable by the City under the Guaranty Agreement unless other funds are lawfully available and appropriated for the timely payment thereof. 3. Conditions to Guazanty. The guaranty authorized in Section 1 above is expressly conditioned upon the following: (a) Timely participation by VRA with SPSA, prior to the WTE Sale closing, in seeking; a closing agreement with the Internal Revenue Service to protect the existing -2- tax status of the Remaining SPSA Local Bonds and all other SPSA indebtedness not retired by the WTE Sale; (b) Timely participation by VRA with SPSA, prior to the WTE Sale closing, in requesting an allocation of volume cap in such amount as is required to preserve the tax status of the interest on the Remaining SPSA Local .Bonds and all other SPSA indebtedness not retired by the WTE Sale; (c) Unanimous approval and execution by all Owner Communities and SPSA of each of the Guazanty Documents; (d) Release of Chesapeake and Norfolk from their existing guazanties of Wachovia Bank, National Association debt under that certain Guaranty Agreement among SPSA, Chesapeake and Norfolk dated May 15, 2009 (the "Wachovia Guazanty Agreement") and concurrent termination of the Wachovia Guaranty Agreement; (e) Release of the Franklin, Portsmouth, Suffolk, Isle of Wight and Southampton from their existing guazanties of the 2009 SPSA Local Bonds under that certain Guazanty Agreement among SPSA, U.S. Bank National Association, the City, Franklin, Portsmouth, Isle of Wight and Southampton dated June 1, 2009 (the "2009 VRA Guaranty Agreement") and concurrent termination of the 2009 VRA Guaranty Agreement; (f) Application of the proceeds from the WTE Sale to pay off and satisfy all amounts owed by SPSA to the City (the "VB Repayment") under that certain Forbearance Agreement among SPSA and the City dated as of May 15, 2009 (the "Forbearance Agreement") and the concurrent termination of the Forbeazance Agreement; and (g) Application of the proceeds from the WTE Sale remaining after the VB Repayment exclusively to pay down existing indebtedness of SPSA, including the SPSA Local Bonds. 4. Designation of City Representative. For the purposes set forth in this ordinance, the term "City Representative" shall mean the City Manager of the City and the Finance Director of the City, either of whom may act. 5. Approval of Guaranty Documents. The Guaranty Documents in substantially the forms presented to this meeting are hereby approved, and the City Representative is authorized and directed to execute, such execution is conditioned upon review and approval by the City Attorney for legal sufficiency, and deliver each of the Guazanty Documents with such completions, omissions, insertions and changes as may be approved by such City Representative, such execution and delivery to conclusively evidence such approval. 6. Further Actions. The City Representative and such officers and agents of the City as the City Representative may designate aze authorized and directed to take such further action as they deem necessary regarding the execution and delivery of the Guaranty Documents, and all such actions previously taken by such officers and agents are ratified and -3- ~- confirmed. The authorizations granted in this ordinance to City Manager and Director of Finance may be carried out by any Deputy or Assistant City Manager or any Assistant, Interim or Acting Director of Finance, as appropriate, in the absence of the primary officers. 7. Effective Date. This ordinance shall be effective upon its passage and shall not be publ',ished. Requires an affirmative vote by a majority of all of the members of City Council. Adopted by the Council of the City of Virginia Beach, Virginia on the day of 2010. APPROVED AS TO CONTENT: Finance APPROVED AS TO LEGAL SUFFICIENCY: City ey's Office -4- DRAFT DATED March 09, 2010 1:33 PM 1 GUARANTY AGREEMENT 2 dated as of _, 2010 3 Re: Not to Exceed $50,000,000 in Aggregate Principal 4 Amount s Southeastern Public Service Authority of Virginia 6 Senior Subordinated and Guaranteed Subordinated Bonds s 9 10 11 12 13 14 15 16 17 is 19 20 21 22 by and among CITY OF CHESAPEAKE, CITY OF FRANKLIN, CITY OF NORFOLK, CITY OF PORTSMOUTH, CITY OF SUFFOLK, CITY OF VIRGINIA BEACH, COUNTY OF ISLE OF WIGHT, and COUNTY OF SOUTHAMPTON as Guarantors, SOUTHEASTERN PUBLIC SERVICE AUTHORITY OF VIRGINIA, and U.S. BANK NATIONAL ASSOCIATION, as Trustee, for the benefit of the VIRGINIA RESOURCES AUTHORITY n2ss~ DRAFT DATED March 09, 2010 1:33 PM 1 TABLE OF CONTENTS 2 3 Page 4 Recitals ........................................................................................... 2 5 ........................................... ....... 6 Section 1. Notice of Failure to Make Monthly Deposits ................................:.................... .......7 7 Section 2. Payments on Guaranteed Bonds ......................................................................... .......7 8 Section 3. C~ilculation and Notice of Guaranty Payments ................................................... .......9 9 Section 4. Saurce of Guaranty Payments ............................................................................ .....10 10 Section 5. Tree Guaranty, Absolute and Unconditional ..................................................~..... .....10 11 Section 6. V1ZA as Third Party Beneficiary ......................................................................... .....12 12 Section 7. Acceptance by the Trustee of Duties Hereunder ................................................ .....12 13 Section 8. Trustee under Guaranty Agreement same as Trustees under Bond Resolutions .....13 14 Section 9. Covenants ........................................................................................................... .....13 15 Section 10. St~~te Aid :[ntercept .............................................................................................. .....14 16 Section 11. Effective Date; Expiration Date .......................................................................... .....14 17 Section 12. Arnendments ....................................................................................................... .....15 18 Section 13. Notices; Wire Instructions ...........................................:...................................... .....15 19 Section 14. A~~plicable Law ...............................................................................:........................18 20 Section 15. Cc~unteiparts .............................................................................................................18 21 Exhibit A - VR~~ Release of 2009 VRA Guaranty Agreement .....................................................28 22 Exhibit B - Waclhovia Release of 2009 Wachovia Guaranty Agreement ......................................31 23 Exhibit C - Virglinia Beach Release of Forbearance Agreement ...................................................34 24 Schedule 1 - SP',~A Indebtedness to VRA as of , 2010 .......................................................36 25 Schedule 2 -Application of pro rata portions of Cash Consideration 26 to SPSA Indebtedness ........................................................................................................37 27 Schedule 3 - SP>A Remaining Indebtedness to VRA ............................................................... ....38 28 Schedule 4 -SPSA Post-Purchase Remaining Indebtedness to VRA ....................................... ....39 29 i 7228599 DRAFT DATED March 09, 2010 1:33 PM 30 GUARANTY AGREEMENT 31 Re: Not to Exceed $50,000,000 in Aggregate Principal Amount 32 Southeastern Public Service Authority of Virginia 33 Senior Subordinated and Guaranteed Subordinated Bonds 34 THIS GUARANTY AGREEMENT is made and entered into as of the day of 35 , 2010, by and among the Guarantors (as hereinafter defined), which shall include all 36 of the CITY OF CHESAPEAKE, the CITY OF FRANKLIN, the CITY OF NORFOLK, the 37 CITY OF PORTSMOUTH, the CITY OF SUFFOLK and the CITY OF VIRGINIA 38 BEACH, all municipal corporations of the Commonwealth of Virginia (the "Commonwealth"), 39 the COUNTY OF ISLE OF WIGHT, a county of the Commonwealth that in accordance with 40 the provisions of Article VII, Section 10(b), Constitution of Virginia 1971, as amended, has 41 elected to become a municipal corporation for purposes of incurring indebtedness, and the 42 COUNTY OF SOUTHAMPTON, a county of the Commonwealth (collectively, the 43 "Guarantors"), SOUTHEASTERN PUBLIC SERVICE AUTHORITY OF VIRGINIA, a 44 public body politic and corporate ("SPSA") created and existing under the Virginia Water and 45 Waste Authorities Act, being Chapter 51, Title 15.2, Code of Virginia, 1950, as amended (herein 46 sometimes called the "Act"), and U.S. BANK NATIONAL ASSOCIATION, a national 47 banking association qualified under Virginia law to provide trust services, and currently the 48 trustee under the Bond Resolutions hereinafter mentioned (the "Trustee"), as fiscal agent 49 hereunder, this Guaranty Agreement to be effective on the Effective Date (hereinafter defined), 50 to be supplemented on the New Schedule Date (hereinafter defined) and to expire on the 51 Expiration Date (hereinafter defined), all as provided in Section 11(b) hereof but subject to 52 earlier termination as provided in Section 11(c) hereof. ~zzss9v DRAFT DATED March 09, 2010 1:33 PM 53 RECITALS 54 R-1. SPSA provides and operates a regional system for the reception, transfer, 55 processing, combusting and disposal of such solid waste ("System"), which includes a Refuse 56 Derived Fuel Plant and a Power Plant (collectively, the "Waste-to-Energy Facilities"), transfer 57 stations and a regional landfill and related facilities and equipment. 58 R-2. SPSA has agreed to sell to Wheelabrator Technologies, Inc. ("Wheelabrator") 59 SPSA's Waste-~:o-Energy Facilities and related facilities (collectively, the "WTE Facilities") 60 under an agreennent by the terms of which SPSA will receive $150,000,000 cash (the "Cash 61 Consideration") and other consideration including a Service Agreement by the terms of which, 62 among other thiings, the purchaser of the WTE Facilities has agreed to accept and process 63 municipal solid ~Naste generated in SPSA's service area (the "Service Agreement"). 64 R.-3. SPSA has indebtedness outstanding under three resolutions authorizing bonds for 65 purposes of the System (one adopted on August 16, 1989 and last amended and restated on May 66 14, 2009 and lciiown as the "Senior Bond Resolution," a second adopted on February 25, 1998 67 and last amends;d and restated on May 14, 2009 and known as the "Senior Subordinated Bond 68 Resolution," acid the third adopted on May 14, 2009 and known as the "Guaranteed 69 Subordinated Bend Resolution" (all three resolutions, collectively, the "Bond Resolutions" and 70 the Senior Subordinated Bond Resolution and the Guaranteed Subordinated Bond Resolution, 71 collectively, the "Junior Bond Resolutions")). Such indebtedness is shown on Schedule 1. 72 R-4. In accordance with the terms of an Intercreditor Agreement, of even date herewith 73 ("Intercreditor .Agreement"), among SPSA and its principal creditors, including Virginia 74 Resources Authority ("VRA"), SPSA has agreed to apply the Cash Consideration to the 75 redemption, prepayment, defeasance, purchase or payment at maturity ("Retirement") of certain 2 7228599 DRAFT DATED March 09, 2010 1:33 PM 76 of its indebtedness, ratably in accordance with the relative proportions of its indebtedness held 77 or enhanced by such creditors as shown in Schedule 2. 78 R-5. Under the terms of the Intercreditor Agreement, SPSA has agreed to obtain the 79 agreement of the Guarantors to enter into this Guaranty Agreement and severally guarantee the 80 full and timely payment to, or for the account of, VRA of all of SPSA's indebtedness not paid 81 or defeased and held by VRA after the application of the Cash Consideration to the Retirement 82 of SPSA indebtedness, the aggregate principal amount of such SPSA indebtedness to VRA 83 having the benefit of this Guaranty Agreement not to exceed $50,000,000 ("SPSA's Remaining 84 VRA Indebtedness"). Schedule 3 shows SPSA's Remaining VRA Indebtedness as of the date 85 hereof. 86 R-6. Each of the Guarantors has entered into an agreement ("Use and Support 87 Agreement") with SPSA for the acquisition, construction and operation by SPSA of the System, 88 and each of the Guarantors has agreed to deliver or cause to be delivered to the System 89 substantially all of the solid waste (excluding hazardous solid waste) under its control and, 90 subject to certain exceptions and limitations, to pay SPSA tipping fees for its disposal of such 91 solid waste. 92 R-7. Chapter 544, Virginia Acts of Assembly, 1977, as amended and reenacted by 93 Chapter 872, Virginia Acts of Assembly, 2003, both enacted pursuant to Article VII, Section 94 10(a)(4) of the Constitution of Virginia 1971, as amended, authorizes the Guarantors, except the 95 County of Southampton, to contract obligations to provide payments over a period or periods of 96 more than one year to guarantee the payment of all or any part of the principal of and the interest 97 on bonds issued by SPSA on account of the System and provides that such payments shall be an 3 7228599 DRAFT DATED March 09, 2010 1:33 PM 98 excluded indebtedness within the meaning of and for the purposes of Article VII, Section 10(a) 99 of the Constitution of Virginia 1971, as amended. 100 R-8. ',iection 15.2-5114.9 of the Act authorizes the County of Southampton to lend, 101 advance or give money to SPSA. 102 R-9. I3y the entry of the Guarantors into this Guaranty Agreement, VRA will be 103 induced to enter into, and SPSA will be enabled to meet the requirements of, the Intercreditor 104 Agreement. By its compliance with the terms thereof, SPSA can effect the sale of the WTE 105 Facilities, recei~re the Cash Consideration and apply the Cash Consideration to the reduction of 106 its indebtedness,. By the entry of SPSA, VRA and SPSA's other principal creditors into the 107 Intercreditor Agreement and the application made possible thereby of the Cash Consideration to 108 the reduction of SPSA's indebtedness and thereby the mitigation of the tipping fees the 109 Guarantors would otherwise pay and the continuation of the service provided by SPSA through 110 (i) the System, a.s modified by the sale of the WTE Facilities, and (ii) the Service Agreement, the 111 Guarantors will be induced to enter into this Guaranty Agreement. 112 R-10. SPSA intends to endeavor to purchase with the Cash Consideration such portion 113 of its indebtedness outstanding under its Bond Resolutions that it can purchase at a net cost that 114 is less than the cost to SPSA of redeeming, prepaying, defeasing or paying at maturity such 115 indebtedness, sL~ch that to the extent that SPSA purchases any of SPSA's Remaining VRA 116 Indebtedness ("Purchased VRA Indebtedness"), the aggregate indebtedness (principal and 117 interest) described in Schedule 3 to this Guaranty Agreement (the "Current Schedule") that 118 would otherwise be guaranteed by the Guarantors under this Guaranty will be reduced. SPSA's 119 efforts to purchase and retire its indebtedness will commence on the Effective Date and conclude 120 within 90 days after the Effective Date (the "New Schedule Date"), after which SPSA will 4 7228599 DRAFT DATED March 09, 2010 1:33 PM 121 provide to the Trustee, the Guarantors and VRA Schedule 4 (the "Revised Schedule")that will 122 describe SPSA's Remaining VRA Indebtedness less the Purchased VRA Indebtedness in the 123 same detail provided in the Current Schedule, and the Revised Schedule will replace the Current 124 Schedule and become a part of this Guaranty Agreement the same as if were a part hereof on the 125 Effective Date. On the Effective Date, SPSA's Remaining VRA Indebtedness shown in the 126 Current Schedule shall have the benefit of this Guaranty Agreement, and, from and after the date 127 that SPSA delivers the Revised Schedule to the Trustee, VRA and the Guarantors, SPSA's 128 Remaining VRA Indebtedness less the Purchased VRA Indebtedness shall have the benefit of 129 this Guaranty Agreement. 130 R-11. The Cities of Franklin, Portsmouth and Suffolk and the Counties of Isle of Wight 131 and Southampton (the "2009 VRA Guarantors") delivered for the benefit of VRA a Guaranty 132 Agreement, dated as of June 1, 2009 (the "2009 VRA Guazanty"), by which the 2009 VRA 133 Guazantors severally agreed to make certain payments in the event that SPSA failed to do so 134 under its Guaranteed Subordinated Bond Resolution, and VRA has agreed, in consideration of 135 SPSA's and the Guarantors' delivery of this Guaranty Agreement, to release the 2009 VRA 136 Guazantors and SPSA from their respective obligations under the 2009 VRA Guaranty and to 137 join with the 2009 VRA Guarantors and SPSA in directing the Trustee (as therein defined) in 138 executing the release appended to this Guazanty Agreement as Exhibit A and to mazk 139 "Canceled," and return to the 2009 VRA Guazantors and SPSA, the 2009 VRA Guazanty for 140 destruction. 141 R-12. Each of the Cities of Chesapeake and Norfolk (the "2009 Wachovia Guarantors") 142 delivered for the benefit of Wachovia Bank, National Association ("Wachovia"), a Guaranty 143 Agreement, dated as of May 15, 2009 (the "2009 Wachovia Guaranty"), by which the 2009 5 7228599 DRAFT DATED March 09, 2010 1:33 PM 144 Wachovia Guarantors severally agreed to make certain payments in the event that SPSA failed to 145 do so on its promissory note to Wachovia in respect of a line of credit extended to SPSA by 146 Wachovia, and Wachovia has agreed, in consideration of SPSA terminating its right to draw on 147 the line of credit (no amounts being due on SPSA's promissory note), to release the 2009 148 Wachovia Guazantors from their obligations under the 2009 Wachovia Guaranty and to join with 149 the 2009 Wachovia Guarantors and SPSA in executing the release appended to this Guaranty 150 Agreement as F;xhibit B and to mark "Canceled," and return to SPSA for destruction, the 2009 151 Wachovia Guaz~anty and SPSA's promissory note secured thereby. 152 R-13. T'he City of Virginia Beach ("Virginia Beach") and SPSA entered into a 153 Forbearance Agreement, dated as of May 15, 2009 (the "2009 Forbearance Agreement"), under 154 which Virginia lBeach agreed, among other things, to forbear from exercising its rights to receive 155 certain payments from SPSA, and SPSA issued its Junior Subordinated Revenue Note to 156 Virginia Beach to evidence its obligation to make certain payments to Virginia Beach, and 157 Virginia Beach ihas agreed, in consideration of SPSA's payment of all amounts owing under the 158 Forbearance Agreement and the Junior Subordinated Revenue Note, to release SPSA from its 159 obligations undE;r the 2009 Forbearance Agreement, to execute the release appended to this 160 Guaranty Agreement as Exhibit C and to mark "Canceled," and return to SPSA for destruction, 161 the 2009 Forbearance Agreement and SPSA's Junior Subordinated Revenue Note secured 162 thereby. 163 R-14. Each Guarantor has determined that it is necessary and proper and in its best 164 interest to enter Tinto this Guaranty Agreement and to agree severally to make, from time to time, 165 payments to, or for the account of, VRA to pay in full, as and when they are scheduled to 166 become due and. payable, the principal of and the interest on bonds described in the Current 6 7228599 DRAFT DATED March 09, 2010 1:33 PM 167 Schedule (or the Revised Schedule from and after the time that it shall replace the Current 168 Schedule) (the "Guaranteed Bonds"), and thereby to guarantee the full and timely scheduled 169 payments of such principal and interest ("Debt Service") on the Guaranteed Bonds. 170 NOW, THEREFORE, in consideration of and as an inducement to VRA to execute and 171 deliver the Intercreditor Agreement, the Guarantors do hereby severally covenant and agree with 172 SPSA and the Trustee, and SPSA does hereby covenant and agree with the Guarantors and the 173 Trustee, as follows: 174 Section 1. Notice of Failure to Make Monthly Deposits. 175 (a) Deposit Day. Under the Bond Resolutions, SPSA is obligated to transfer to the 176 Trustee amounts at least sufficient for the Trustee to make, not later than the 12~h day of each 177 calendar month (a "Deposit Day"), deposits to special accounts under and in accordance with all 178 three Bond Resolutions in the respective amounts equal to the accrued Debt Service on SPSA's 179 indebtedness outstanding thereunder. 180 (b) Notice. In the event that SPSA has not made, by the 16`h day of any month, a 181 transfer to the Trustee sufficient for the Trustee to make all the deposits described in subsection 182 (a) of this Section 1, then both SPSA and the Trustee, independently, shall notify the Guarantors 183 and VRA of the existence of the insufficiency, the total amount thereof and the account or 184 accounts in which a deficiency exists and the amount thereof. 185 Section 2. Payments on Guaranteed Bonds. If, in the determination of the 186 Trustee, (i) a deficiency exists on the 5`~~ "Business Day" immediately prior to a "Payment Date" 187 on the Guaranteed Bonds in the amounts (A) on deposit in the Senior Subordinated Obligations 188 Subaccount in the Subordinated Obligations Account under the Senior Subordinated Bond 189 Resolution and/or (B) on deposit in the Guaranteed Subordinated Obligations Subaccount in the 7 7228599 DRAFT DATED March 09, 2010 1:33 PM 190 Subordinated Obligations Account under the Guaranteed Subordinated Bond Resolution, and (ii) 191 there are not, under the Bond Resolutions, other funds legally available to the Trustee sufficient 192 for. the Trustee to make the payments of Debt Service due on the Guaranteed Bonds on such 193 Payment Date, the Trustee shall give notice thereof, as described in Section 3(a), to the 194 Guarantors, and. the Guarantors hereby severally agree to make, all as provided hereinafter in this 195 Guazanty Agreement, on or before such Payment Date, payments to, or for the account of, VRA 196 as provided in Section 3 in the amount of such deficiency ("Debt Service Deficiency") and for 197 the credit of SP;~A. Not later than simultaneously with its making such payment, each Guarantor 198 shall notify VR~~, the Trustee and SPSA of such payment and the date and amount such payment 199 was or is being made. It shall not be a default under this Guaranty Agreement if any Guarantor 200 shall fail to give any notice required by the preceding sentence. If prior to the Payment Date, 201 SPSA shall otherwise provide to the Trustee funds sufficient to remedy the Debt Service 202 Deficiency in the accounts described in clause (i)(A) and (B) above, then the Trustee shall 203 promptly so no~:ify the Guazantors and return to such of them as shall have made payments 204 pursuant to the third preceding sentence the amount of such payments but without interest. 205 A.s used in this Guaranty Agreement, 206 "Business Day" means a calendar day that is not a Saturday or Sunday or a 207 legal holiday in the Commonwealth or a day on which banks doing business in the 208 Commonwealth are authorized to close. 209 "Payment Date" means as to the Guaranteed Bonds the date on which 210 interest or principal and interest thereon is scheduled to become due and payable to VRA. 211 8 ~zzssv9 DRAFT DATED March 09, 2010 1:33 PM 212 Section 3. Calculation and Notice of Guaranty Patents. 213 (a) Allocation of Deficiency. If the Trustee shall have determined that a Debt Service 214 Deficiency, described in Section 2, exists, the Trustee shall include in the notice the amount of 215 each Guarantor's "Allocable Portion" of the deficiency (determined by multiplying the 216 "Applicable Percentage," as defined below, for such Guarantor by the aggregate amount of the 217 Debt Service Deficiency). Each Guarantor hereby agrees to make, without further notice or 218 demand therefor, on or before the applicable Payment Date, payment to the Trustee in the 219 amount of its Allocable Portion of such Debt Service Deficiency. 220 (b) Applicable Percentages. The Applicable Percentages for the Guarantors, shall be as 221 follows: Guarantor Applicable Percentage City of Chesapeake 22.49% City of Franklin 0.97% County of Isle of Wight 3.98% City of Norfolk 16.98% City of Portsmouth 10.27% County of Southampton 2.10% City of Suffolk 12.87% City of Virginia Beach 30.34% 222 (c) Reimbursement for Guaranty Payments. To the extent that a Guarantor shall have 223 made a payment to VRA, or to the Trustee for the account of VRA, pursuant to this Section, such 224 Guarantor shall be subrogated to the rights of VRA as against SPSA and thereby entitled to 225 reimbursement from SPSA (i) in accordance with the provisions of the Reimbursement 226 Agreement of even date herewith between SPSA and the Guarantors and (ii) subject to, in the 9 7228599 DRAFT DATED March 09, 2010 1:33 PM 227 case of SPSA's Senior Subordinated Revenue Bond, Series 22 and allonges thereto, the amount, 228 if any, owing thereon to Wachovia on account of SPSA's obligation to reimburse Wachovia for 229 any draws on Wachovia's letter of credit, or a comparable facility, issued to the Virginia 230 Department of Environmental Quality to meet its requirements for "financial assurance" relating 231 to the capital coasts associated with the closure of SPSA's landfill and other facilities. 232 Section 4. Source of Guaranty Payments. Any amount required to be paid by 233 a Guarantor pursuant to Section 2 hereof may be paid from any funds of such Guarantor legally 234 available therefor; provided, however, that if no other funds are legally available for such 235 payment, such amount shall be paid from ad valorem taxes levied or to be levied on all taxable 236 real and tangible personal property within such Guarantor, and each Guarantor (except the 237 County of Southampton) hereby pledges its full faith and credit to the payment of such amount. 238 The obligation ~~f the County of Southampton to provide for such payment is subject to the 239 appropriation by its Board of Supervisors of funds from which such payment obligation may be 240 made. Each Gu;~rantor hereby covenants that promptly after receiving a notice from the Trustee 241 of a Debt Service Deficiency pursuant to Section 2 of this Guaranty Agreement, such Guarantor 242 will amend its current budget, if and as necessary, to include an amount sufficient to make its 243 Allocable Portion of such Deficiency as provided in Section 3(a). 244 Section 5. The Guaranty, Absolute and Unconditional. Each Guarantor 245 hereby absolutely and unconditionally agrees to pay its Allocable Portion of any Debt Service 246 Deficiency menl:ioned in Section 3(a) of this Guaranty Agreement as provided in any notice 247 provided by the Trustee pursuant to Section 2(a) without regard to the cause of such Debt 248 Service Deficiency; provided, however, that the obligation of the County of Southampton to 249 provide for sucr~ payment is subject to the appropriation of funds from which such payment 10 7228599 DRAFT DATED March 09, 2010 1:33 PM 250 obligation can be met. Each Guarantor further agrees that its agreement to pay its Allocable 251 Portion of any Debt Service Deficiency shall not be subject to diminution by set-off, 252 counterclaim, abatement or any other rights which the Guarantor may have against the Trustee or 253 VRA or SPSA or any other Guarantor pursuant to the Bond Resolutions, the Use and Support 254 Agreements, the Service Agreement or any other contract relating to the System, this Guaranty 255 Agreement or any other agreement or any law for reimbursement of all or any part of such 256 payment. Default by one or more of the Guarantors with respect to their obligations hereunder 257 shall not release any other Guarantor from its obligations hereunder. 258 The Guarantors agree that this Guaranty Agreement and the obligations of the 259 Guarantors hereunder shall be unconditional and shall not in any manner be impaired, modified, 260 or affected if, among other things, (i) any event of default described in any of the Bond 261 Resolutions or in any of the Financing Agreement, dated as of June 1, 2009, as amended, 262 between VRA and SPSA, the Use and Support Agreements or the Service Agreement shall 263 occur, (ii) the Bond Resolutions, or any of them, the Use and Support Agreements, or any of 264 them, the Service Agreement or any other contract relating to the System shall be amended or 265 supplemented in accordance with the Bond Resolutions, (iii) the Bond Resolutions, or any of 266 them, or the Use and Support Agreements, or any of them, the Service Agreement, or any other 267 contract relating to the System shall be determined by a court of competent jurisdiction to be null 268 and void or otherwise unenforceable in whole or in part, (iv) any sale, lease, or other disposition 269 or change in the ownership or control or abandonment of, or any damage or destruction to, all of 270 any portion of the System shall occur, (v) any diminution in SPSA's or Wheelabrator's ability to 271 provide, or cause to be provided, the solid waste disposal services required under the Use and 272 Support Agreements and the Service Agreement shall occur, or (vi) SPSA shall delay or omit to 11 7228599 DRAFT DATED March 09, 2010 1:33 PM 273 exercise any right or power or perform any duty or obligation under the Bond Resolutions, the 274 Use and Support Agreements, the Service Agreement or any other contract relating to the System 275 or this Guaranty Agreement. 276 'T'his Guaranty Agreement shall be construed as a guaranty of payment and, in the 277 event of a Debt Service Deficiency or any other event of default described in clause (i) of the 278 preceding sente~ice, neither VRA nor the Trustee shall be required to institute or complete any 279 efforts of collection against SPSA prior to proceeding against the Guarantors. 280 For avoi~3ance of doubt, if any event of default described in either or both of the Junior 281 Resolutions shall have occurred and be continuing and the Trustee under either or both of the 282 Junior Resolutions shall have declared that the principal of all the bonds outstanding under such 283 resolution or res~~lutions to be due and payable immediately, such declaration shall have no force 284 or effect on the obligation of the Guarantors under this Guaranty Agreement, which obligation 285 shall remain to lay their Allocable Portions of any Debt Service Deficiency on or before each 286 Payment Date as the same shall occur without regard to any acceleration of principal of or 287 interest on the Guaranteed Bonds. 288 SE;ction 6. VRA as Third Party Beneficiary The Guarantors, SPSA and the . 289 Trustee each hereby acknowledge that VRA, and no other person, is the third party beneficiary 290 of this Guaranty .Agreement. 291 Section 7. Acceptance by the Trustee of Duties Hereunder. U.S. Bank 292 National Association hereby accepts the duties and responsibilities imposed upon the Trustee by 293 this Guaranty ~~greement, upon the terms and conditions, including indemnification and 294 compensation, provided in Article IX of the Senior Subordinated Bond Resolution and Article IX 295 of the Guaranteed Subordinated Bond Resolution. 12 7228599 DRAFT DATED March 09, 2010 1:33 PM 296 Section 8. Trustee under Guaranty Agreement same as Trustees under Bond 297 Resolutions. The Trustee for purposes of this Guaranty Agreement shall at all times be the same 298 as the Trustee or Trustees under the Junior Bond Resolutions and, to that end, should the Trustee 299 under both the Junior Bond Resolutions resign or be removed, the Trustee hereunder shall be 300 deemed, ~ facto, to have resigned or to have been removed, and the successor trustee under 301 the Junior Bond Resolutions, upon its acceptance of the trusts thereunder and hereunder, shall 302 become automatically the Trustee hereunder; provided, however, that if the trustee under one but 303 not both Junior Bond Resolutions resigns or is removed as trustee thereunder, then SPSA shall 304 appoint another bank or trust company meeting the qualifications of the trustee under the 305 applicable Junior Bond Resolution, and the provisions of this Guaranty Agreement applicable to 306 the Trustee shall apply to, the word "Trustee" thereunder shall refer to, and the provisions of 307 Section 7 shall apply to, such successor Trustee. 308 Section 9. Covenants. 309 (a) Enforcement of Service Agreement and Use and Support Agreements. SPSA 310 covenants, for the benefit of the Guarantors, the Trustee, and the holders from time to time of its 311 Guaranteed Bonds, that SPSA will defend and enforce the provisions of (i) the Service 312 Agreement and (ii) the Use and Support Agreements with each of the Guarantors in accordance 313 with their respective terms. 314 (b) Additional Indebtedness. SPSA covenants, for the benefit of the Guarantors, the 315 Trustee and VRA that SPSA will borrow no money and in evidence thereof issue any bonds, 316 notes or other evidences of indebtedness, enter into any installment purchase, lease purchase, 317 sale or lease-leaseback transactions or incur any additional certificated indebtedness 318 (collectively, "Additional Indebtedness") except in accordance with the provisions of the Act, 13 7228599 DRAFT DATED March 09, 2010 1:33 PM 319 including in particular and without limitation, the provisions of clauses 8 and 9 of Section 15.2- 320 5102.1, Code of Virginia 1950 as amended. 321 Section 10. State Aid Intercept. The Guarantors each hereby acknowledge that 322 VRA and the 'T'rustee may take any and all actions available to them under the laws of the 323 Commonwealth., including the invocation of the "state-aid intercept" provisions of Section 62.1- 324 216.1 of the Virginia Resources Authority Act and, except in the case of the County of 325 Southampton, Section 15.2-2659 of the Public Finance Act, to obtain any payment of the 326 principal of and premium, if any, and interest on the Guaranteed Bonds or any payment due 327 under this Guaranty Agreement. 328 Section 11. Effective Date; Expiration Date. 329 (a) Effective Date. This Guaranty Agreement shall become effective on the date (the 330 "Effective Date") that SPSA shall receive the Cash Consideration, SPSA shall transfer title to the 331 WTE Facilities to or at the direction of the purchaser thereof and the Service Agreement shall 332 become effective;; provided that on or prior to such date, the governing body of each Guarantor 333 shall have authorized such Guarantor to execute and deliver this Guaranty Agreement and each 334 such Guarantor shall have executed and delivered this Guaranty Agreement, and certified copies 335 of the proceedin€;s of each Guarantor evidencing such authorization, together with an opinion or 336 opinions of coun,~el nationally recognized in the field of municipal bond law, addressed to the 337 Trustee and to VlltA, to the effect that this Guaranty Agreement is valid and binding on each 338 such Guarantor iii accordance with its terms, shall have been delivered to the Trustee. 339 (b) Expiration Date. This Guaranty Agreement shall expire on the final stated 340 maturity date of ~~the Guaranteed Bonds, or, if all amounts of principal and interest owing on the 341 Guaranteed Boncls shall not have been paid or defeased on their final stated maturity date, then 14 7228599 DRAFT DATED March 09, 2010 1:33 PM 342 on such later date as all of the Guaranteed Bonds shall have been paid or defeased in accordance 343 with their respective terms. Notwithstanding any other provision of this Guaranty Agreement, the 344 provisions of this Section 11(b) are in all respects subject to the provisions of Section 11(c). 345 (c) Early Termination. In the event that all of the Guaranteed Bonds shall have been 346 retired or defeased prior to the last stated maturity date of the Guaranteed Bonds in accordance 347 with their applicable Junior Resolution, this Guaranty Agreement shall terminate as of such 348 earlier date. 349 Section 12. Amendments. This Guaranty Agreement may not be amended or 350 supplemented except by a supplemental guaranty agreement executed by all of SPSA, the 351 Guarantors and the Trustee and approved by VRA. 352 Section 13. Notices: Wire Instructions. 353 (a) Notices. Unless otherwise provided in this Guaranty Agreement, all demands, 354 notices, approvals, consents, requests and other communications under this Guaranty Agreement 355 shall be in writing and shall be given first by electronic or facsimile transmission and shall be 356 confirmed and deemed to have been given when delivered in person or mailed via overnight 357 delivery addressed as set forth below: 358 If to a Guarantor, at: 359 City of Chesapeake, Virginia 360 306 Cedar Road 361 Chesapeake, Virginia 23322 362 Attention: City Manager 363 Facsimile: (757) 382-6507 364 E-mail: weharrellncityofchesapeake.net 365 15 7228599 DRAFT DATED March 09, 2010 1:33 PM 366 City of Franklin, Virginia 367 207 W. Second Avenue 368 Franklin, Virginia 23851 369 ~?,ttention: City Manager 370 Facsimile: (757) 562-7982 371 E.-mail: jfleming(a~franklinva.com 372 County of Isle of Wight, Virginia 373 17090 Monument Circle 374 I;~le of Wight, Virginia 23397 375 Attention: County Administrator 376 Facsimile: (757) 357-9171 377 E-mail: dcaskev cr.isleofwiehtus.net 378 City of Norfolk, Virginia 379 810 Union Street 380 City Hall Building 381 Norfolk, Virginia 23510 382 Attention: City Manager 383 Facsimile: (757) 664-4424 384 E-mail: rvkwilliamsna,norfolk.gov 385 City of Portsmouth, Virginia 386 801 Crawford Street, 6"' Floor 387 Portsmouth, Virginia 23704 388 Attention: City Manager 389 F:~csimile: (757) 393-5241 390 E-mail: chandlerknportsmouthva.gov 391 County of Southampton, Virginia 392 2ti022 Administration Center Drive 393 Courtland, Virginia 23837 394 Attention: County Administrator 395 Facsimile: (757) 653-0227 396 E•-mail: mikejohnson ,co.southampton.state.va.us 397 City of Suffolk, Virginia 398 4~L1 Market Street 399 Sixffolk, Virginia 23434 400 Attention: City Manager 401 F~icsimile: (757) 539-2621 402 E••mail: SCGlenn ~L,citv.suffolk.va.us 403 16 7228599 DRAFT DATED March 09, 2010 1:33 PM 404 City of Virginia Beach, Virginia 405 2401 Courthouse Drive 406 Municipal Center Building 1 407 Virginia Beach, Virginia 23456 408 Attention: City Manager 409 Facsimile: (757) 427-5626 410 E-mail: jspore cr,vbaov.com 411 If to VRA, at: 412 Virginia Resources Authority 413 1111 East Main Street, 19th Floor 414 Richmond, Virginia 23219 415 Attention: Executive Director 416 Facsimile: 417 E-mail: 418 If to the Trustee, at: 419 U.S. Bank National Association 420 1021 East Cary Street, 18th Floor 421 Richmond, Virginia 23219 422 Attention: Corporate Trust Department 423 Facsimile: 424 E-mail: 425 If to SPSA, at: 426 Southeastern Public Service Authority 427 723 Woodlake Drive 428 Chesapeake, Virginia 23320 429 Attention: Executive Director 430 Facsimile: (757) 424-4133 431 E-mail: rtaylornsnsa.com 432 VRA, each of the Guarantors, SPSA and the Trustee may designate, by notice given hereunder, 433 any further or different addresses to which subsequent demands, notices, approvals, consents, 434 requests or other communications shall be sent or persons to whose attention the same shall be 435 directed. 436 (b) Wire Instructions. Payments owing by the Guarantors hereunder shall be 437 made by wire transfer for the account of VRA as follows: 17 7228599 DRAFT DATED March 09, 2010 1:33 PM 438 [to come] 439 VRA may designate, by notice given hereunder, any further or different instructions as to where 440 subsequent payments shall be sent or persons to whose attention the same shall be directed. 441 Section 14. Applicable Law. This Guaranty Agreement shall be governed by 442 and construed ire accordance with the laws of the Commonwealth. 443 Section 15. Counterparts. This Guaranty Agreement may be executed in 444 multiple counterparts, each of which shall be regarded for all purposes as an original; and such 445 counterparts shall constitute but one and the same instrument. 446 by WITNESS WHEREOF, each of the Guarantors, being the City of 447 Chesapeake, the; City of Franklin, the City of Norfolk, the City of Portsmouth, the City of 448 Suffolk, the City of Virginia Beach, the County of Isle of Wight, and the County of 449 Southampton, his caused this Guaranty Agreement to be executed on its behalf by its mayor or 450 county or city .manager or administrator, as the case may be, and its corporate seal to be 451 impressed hereon and attested by its clerk, Southeastern Public Service Authority of Virginia has 452 caused this Guaranty Agreement to be executed on its behalf by its Executive Director and its 453 corporate seal to be impressed hereon and attested by its Secretary or an Assistant Secretary, and 454 U.S. Bank National Association has caused this Guaranty Agreement to be executed on its behalf 455 by its duly authorized tn.~st officer, all as of the date and year first written above. 456 18 7228599 457 DRAFT DATED March 09, 2010 1:33 PM CITY OF CHESAPEAKE, VIRGINIA 458 BY~ 459 460 (Corporate seal) 461 ATTEST: 462 463 Clerk 464 Approved as to form: 465 466 City Attorney 467 19 7228599 468 DRAFT DATED March 09, 2010 1:33 PM CITY OF FRANKLIN, VIRGINIA 469 gy; 470 471 (Corporate seal) 472 ATTEST: 473 474 Clerk 475 Approved as to i:orm: 476 477 478 City Attorney 20 7228599 479 480 481 482 (Corporate seal) 483 ATTEST: 484 485 Clerk 486 Approved as to form: 487 488 County Attorney 489 7228599 DRAFT DATED March 09, 2010 1:33 PM COUNTY OF ISLE OF WIGHT, VIRGINIA By: 21 DRAFT DATED March 09, 2010 1:33 PM 490 CITY OF NORFOLK, VIRGINIA 491 ~ gy. 492 493 (Corporate seal) 494 ATTEST: 495 496 Clerk 497 Approved as to i:orm: 498 499 City Attorney 500 22 7228599 501 502 503 504 (Corporate seal) 505 ATTEST: 506 507 Clerk 508 Approved as to form: 509 510 City Attorney 511 7228599 DRAFT DATED March 09, 2010 1:33 PM CITY OF PORTSMOUTH, VIRGINIA By: 23 512 513 514 515 (Corporate seal) 516 ATTEST: 517 518 Clerk 519 Approved as to iEorm: 520 521 County Attorne}~ 522 523 7228599 DRAFT DATED March 09, 2010 1:33 PM COUNTY OF SOUTHAMPTON, VIRGINIA By: 24 524 525 526 527 528 ~ (Corporate seal) 529 530 531 ATTEST: 532 533 534 Clerk 535 536 537 Approved as to form: 538 539 540 City Attorney 541 7228599 DRAFT DATED March 09, 2010 1:33 PM CITY OF SUFFOLK, VIRGINIA By: 25 DRAFT DATED March 09, 2010 1:33 PM 542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 557 558 559 560 561 CITY OF VIRGINIA BEACH, VIRGINIA (Corporate seal) ATTEST: Clerk Approved as to form: City Attorney ~zzss~ By: 26 DRAFT DATED March 09, 2010 1:33 PM 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 577 578 579 SOUTHEASTERN PUBLIC SERVICE AUTHORITY OF VIRGINIA By: Its: Executive Director (Corporate seal) ATTEST: [Assistant] Secretary 27 7228599 DRAFT DATED March 09, 2010 1:33 PM S80 581 582 583 584 7228599 U. S. BANK NATIONAL ASSOCIATION By: 28 DRAFT DATED March 09, 2010 1:33 PM 585 586 Exhibit A 587 RELEASE 588 dated as of _, 2010 589 590 of the 591 GUARANTY AGREEMENT 592 dated as of June 1, 2009 593 among 594 City of Franklin, 595 City of Portsmouth, 596 City of Suffolk, 597 County of Isle of Wight, and 598 County of Southampton, 599 (Guaranteeing Units), 60o Southeastern Public Service Authority of Virginia 601 (Beneficiary), and 602 U.S. Bank National Association, 603 as Fiscal Agent and Trustee, 604 605 for the benefit of 606 Virginia Resources Authority 607 (Third Party Beneficiary) 608 29 7228599 DRAFT DATED March 09, 2010 1:33 PM 609 610 RECITALS 611 R-l. On June 13, 2009, Virginia Resources Authority ("VRA") purchased from 612 Southeastern Public Service Authority of Virginia ("SPSA") SPSA's Guazanteed Subordinated 613 Revenue Bond, Refunding Series 2009 (Taxable), in the principal amount of $71,985,000 (the 614 "Guaranteed Band") in part in reliance on, and secured by, a Guaranty Agreement dated as of 615 June 1, 2009 (the "2009 VRA Guaranty Agreement"), by and among the City of Franklin, the 616 City of Portsmouth, the City of Suffolk, the County of Isle of Wight, and the County of 617 Southampton (each a "Guaranteeing Unit" and, collectively the "Guaranteeing Units"), SPSA 618 and U.S. Bank national Association, as fiscal agent thereunder (the "Trustee"). 619 620 R-2. `'RA, the Guazanteeing Units and SPSA have entered into subsequent agreements 621 by the terms of which SPSA will defease, redeem or purchase certain outstanding indebtedness, 622 including bonds of VRA, the proceeds of which VRA applied to fund the purchase price of the 623 Guaranteed Bond and thereby, in the form of an allonge, receive a credit against the principal 624 and interest otherwise due on the Guaranteed Bond; the Guaranteeing Units and the City of 625 Chesapeake, the City of Norfolk and the City of Virginia Beach (collectively, the "Guarantors") 626 have entered into a Guazanty Agreement, dated as of _, 2010 (the "New Guaranty 627 Agreement"), with SPSA and the Trustee by the terms of which the Guazantors, in accordance 628 with the terms of the New Guaranty Agreement, have severally agreed to guarantee to the 629 Trustee for the l;~enefit of VRA the full and timely payment of the remaining unpaid debt service 630 on the Guazantee~d Bond as amended by an allonge thereto. 631 632 R-3. One condition to the delivery by the Guazantors of the New Guazanty Agreement 633 is that the Guaz;~nteeing Units and SPSA be relieved of their respective obligations under the 634 2009 VRA Gu~~ranty Agreement simultaneously with their delivery of the New Guaranty 635 Agreement, and VRA, as the third party beneficiary of the 2009 VRA Guazanty Agreement, be 636 willing to release its rights under such agreement and join the Guaranteeing Units and SPSA in 637 requesting and dlirecting the Trustee to release such agreement, and VRA and the Trustee are 638 delivering this release in evidence of their relinquishment of their respective rights under the 639 2009 VRA Guaz~~nty Agreement. 640 641 [End of page; this space intentionally left blank] 642 30 7228599 DRAFT DATED March 09, 2010 1:33 PM 643 644 645 646 647 648 649 650 651 652 653 654 655 656 657 658 659 660 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 678 679 680 681 682 683 684 685 686 687 688 Now, therefore, VRA hereby releases (i) all of its rights as third party beneficiary under the 2009 VRA Guaranty Agreement and (ii) the Guaranteeing Units and SPSA from their respective obligations under the 2009 VRA Guaranty Agreement, and VRA hereby requests and directs the Trustee to acknowledge such release and to provide a counterpart of this Release to each Guaranteeing Unit and to SPSA. Dated this _ day of , 2010. VIRGINIA RESOURCES AUTHORITY By: Dr. Sheryl Bailey, Ph.D Executive Director Acknowledged and agreed: U.S. BANK NATIONAL ASSOCIATION By: Authorized Representative Received and accepted: SOUTHEASTERN PUBLIC SERVICE AUTHORITY OF VIRGINIA By: Authorized Representative Received and accepted: CITY OF FRANKLIN By: Authorized Representative Received and accepted: CITY OF PORTSMOUTH By: Authorized Representative Received and accepted: CITY OF SUFFOLK By: Authorized Representative Received and accepted: COUNTY OF ISLE OF WIGHT By: Authorized Representative Received and accepted: 31 COUNTY OF SOUTHAMPTON By: Authorized Representative ~zzssv9 DRAFT DATED March 09, 2010 1:33 PM 689 690 Exhibit B 691 a9_ RELEASE 693 dated as of _, 2010 694 695 of the 696 (sUARANTY AGREEMENT 697 dated as of May 15, 2009 698 among 699 700 701 Southeastern Public Service Authority of Virginia 702 (Beneficiary) 703 and 704 City of Chesapeake 705 and 706 City of Norfolk, 707 (Guarantors) 708 709 710 ~ for the benefit of 711 ~~Vachovia Bank, National Association 712 (Third Party Beneficiary) 713 32 7228599 DRAFT DATED March 09, 2010 1:33 PM 714 715 RECITALS 716 R-1. On May 15, 2009, the City of Chesapeake and the City of Norfolk delivered to 717 Wachovia Bank, National Association ("Wachovia") a Guaranty Agreement dated as of May 15, 718 2009 (the "2009 Wachovia Guaranty Agreement"), by and among Southeastern Public Service 719 Authority ("SPSA"), the City of Chesapeake and the City of Norfolk (each City a "Guarantor" 720 and, collectively, "Guarantors") by the terms and conditions of which the Guarantors severally 721 agreed to guarantee certain payments by SPSA owing to Wachovia on SPSA.'s promissory note, 722 in the principal amount of up to $17,200,000, evidencing unpaid draws by .SPSA on a line of 723 credit extended by Wachovia to SPSA. 724 725 R-2. Virginia Resources Authority ("VRA"), the Guarantors, SPSA's other six 726 members and SPSA have entered into subsequent agreements by the terms of which SPSA will 727 defease or redeem or purchase certain outstanding indebtedness, and the Guarantors and the City 728 of Franklin, the City of Portsmouth, the City of Suffolk, the City of Virginia Beach, the County 729 of Isle of Wight and the County of Southampton (collectively, the "New Guarantors") have 730 entered into a Guaranty Agreement, dated as of _, 2010 (the "New Guaranty 731 Agreement"), with SP5A and the Trustee under SPSA's Senior Subordinated Bond Resolution 732 and Guaranteed Senior Subordinated Bond Resolution, by the terms and conditions of which the 733 New Guarantors have severally agreed to guarantee to the Trustee, for the benefit of VRA, the 734 full and timely payment of the remaining SPSA debt to VRA. 735 736 R-3. One condition to the delivery by the Guarantors and SPSA of the New Guaranty 737 Agreement is that the Guarantors and SPSA be relieved of their respective obligations under the 738 2009 Wachovia Guaranty Agreement prior to or simultaneously with the delivery of the New 739 Guaranty Agreement, and Wachovia, as the third party beneficiary of the 2009 Wachovia 740 Guaranty Agreement, be willing to release its rights under and execute a release of such 741 agreement, and Wachovia is delivering this release in evidence of its relinquishment of its rights 742 under the 2009 Wachovia Guaranty Agreement. 743 [End of page; this space intentionally left blank] 744 33 7228599 DRAFT DATED March 09, 2010 1:33 PM 745 746 747 748 749 750 751 752 753 754 755 756 757 758 759 760 761 762 763 764 765 766 767 768 769 770 771 772 773 774 775 Now, therefore, Wachovia hereby releases (i) all of its rights as third party beneficiary under the 2009 Wachovia Guaranty Agreement and (ii) the Guarantors and SPSA from their respective obligations under the 2009 Wachovia Guaranty Agreement. Dated this _ d~iy of , 2010. WACHOVIA BANK, NATIONAL ASSOCIATION By: Received and accepted: SOUTHEASTERN PUBLIC SERVICE AUTHORITY OF VIRGINIA By: Authorized Representative Received and accepted: CITY OF CHESAPEAKE By: Authorized Representative Received and accepted: Authorized Representative 7228599 Vanessa G. Wilson/Stephanie L. Foster Vice President 34 CITY OF NORFOLK By: DRAFT DATED March 09, 2010 1:33 PM 776 777 Exhibit C 778 779 780 781 RELEASE and TERMINATION 782 783 dated as of _, 2010 784 785 786 of the 787 7s8 FORBEARANCE AGREEMENT 789 dated as of May 15, 2009 790 791 792 between 793 794 City of Virginia Beach, 795 796 and 797 79s Southeastern Public Service Authority of Virginia 799 35 7228599 DRAFT DATED March 09, 2010 1:33 PM 800 801 802 803 804 805 806 807 808 809 810 811 812 813 814 815 816 817 818 819 820 821 822 823 824 825 826 827 828 829 830 831 832 833 834 835 836 RECITALS R-1. C)n May 15, 2009, the City of Virginia Beach (the "City) and the Southeastern Public Service ~~uthority of Virginia ("SPSA") entered into a Forbearance Agreement dated as of May 15, 2009 (the "Forbearance Agreement"), and SPSA simultaneously issued to the City SPSA's "Non-Transferable Junior Subordinated Revenue Note also dated as of May 15, 2009 (the "Note"), all to evidence the agreement by the City to defer its right to receive certain amounts owing to the City under the terms of the Agreement for Disposal of Ash and Process Residue dated a;~ of August 8, 1984 (the "Ash Agreement") between the City and SPSA, and the agreement of SPSA to repay certain amounts on terms set forth in the Forbearance Agreement and the Note. R-2. A.s of the date hereof, SPSA has paid the City all amounts owing under the Forbearance Agreement and the Note and, in consideration of its receipt of such payment, the City has agreed to release the Forbearance Agreement and to cancel and return the Note, as provided herein. Now, therefore, the City of Virginia Beach hereby (i) acknowledges the receipt of $ in full satisfaction of all amounts owing by SPSA to the City under the Forbearance Agreement, (ii) ;agrees that all of SPSA's obligations under the Forbearance Agreement and the Note have been Maid, satisfied and discharged, (iii) releases all of its rights under the Forbearance Agreement, (iv) has canceled and returned to SPSA the Note, and (v) agrees that the Forbearance Agreement is terminated as of the date of this Release. CITY OF VIRGINIA BEACH By: James K. Spore City Manager SOUTHI_;ASTERN PUBLIC SERVICE AUTHORITY OF VIRGINIA hereby acknowledges receipt of this Release and the return of its Non-Transferable Junior Subordinated Revenue Note, appropriately canceled and agrees to the termination of the Forbearance Agreement. By: nzssv9 36 Authorized Representative DRAFT DATED March 09, 2010 1:33 PM 837 Schedule 1 83g SPSA Indebtedness as of [April 2], 2010 2011 - 6,050,000 4,485,000 4,080,000 14,615,000 6.67% 2012 255,000 11,385,000 6,205,000 9,260,000 - 27,105,000 __ 12.38% 2013 270,000 5,895,000 6,455,000 __ 13,680,000 _ _.. - _ 26,300,000 _ 12.01% 2014 285,000 9,480,000 1,783,000 14,100,000 - __. _ 25,648,000 11.71% _ 2015 15,935,000 ..........._....._ - __.. ............._.___.. . - 2,525,000 8,540,000 27,000,000 12.33% 2016 _ 16,765,000 _ ....._ - _ - _ 8,2,10,000 9,785,000 __ 34,760,000 _ __ 15.87% _ 2017 - - - 9,910,000 27,520,000 37,430,000 17.09% 2018 - - - - 26,]40,000 26,140,000 11.94% Total 33,510,000 32,810,000 18,928,000 61,765,000 _ _ 71,985,000 _ 218,998,000 100.00% _ __ Of Total . ~~.~.e.... ~ 15.30% w_.~....,. _._. ~........ , 14.98% _...., , 8.64% 28.20% 32.87% 100.00% Note: Assumes Wachovia loan due in FY2012 will be amortized in equal amounts in FY2010 and FY2011. Excludes certain maturities for which funds have already been deposited with the Trustee. 839 840 ` 1998 SPSA bonds insured by Ambac Assurance Corporation. 22008 $12,100,000 SPSA bonds held by Wachovia and $20,700,000 SPSA variable rate bonds secured by a direct pay letter of credit from Wachovia. 3 Amounts payable to Virginia Beach in accordance with the Forbearance Agreement. 37 7228599 DRAFT DATED March 09, 2010 1:33 PM 841 842 Schedule 2 843 844 Application of pro rata portions of Cash Consideration to SPSA Indebtedness 845 AMBAC _ _ .._ 24,25~.(,~i~ 16% Wachovia e.. _.. _ . . _ _ .. _ 13,860,000 ._ _ _ _ __ 9% VA Beach 18,928,000 __ 12% VRA Subordinate __ 43,839,768 __ 29% VRA Guaranteed ._ _ _ 51,286,104 _ __ __ .._.._ ......... 34% Total 152,196,522 100% Note: Total includes proceeds released from Series /998 Debt Service Reserve Fund. 846 847 38 7228599 DRAFT DATED March 09, 2010 1:33 PM 848 849 Schedule 34 850 SPSA's Remaining Indebtedness to VRA 851 (Guaranteed Bonds) 852 [Is shown below in the highlighted columns headed 853 VRA Subordinate and VRA Guaranteed) 854 [Estimate as ofmid-February 2010] 2011 - __ .... _ - 4,080,000 _ - 4,080,000 5.27% 2012 90,000 __ 5,230,000 _ __ - 3,250,000 - 8,570,000 11.07% 2013 95,000 5,260,000 - 4,805,000 - __ 10,160,000 13.13% 2014 100,000 8,460,000 ___ - 2,045,000 __ - 10,605,000 13.70% 2015 5,590,000 . __......... _. .................. __ - .....__. - 885,000 3,000,000 9,475,000 12.24% 2016 ___ 5,885,000 - - 2,$80,000_ 3,435,000 12,200,000 15.76% 2017 - - - 3,480,000 9,650,000 ___ 13,130,000 16.97% 2018 - - - - 9,170,000 9,170,000 1185% Total 11,760,000 18,950,000 - 21,425,000 25,255,000 77,390,000 _ __ 100.00% _ __ % of Total 15.20% ... 24.49% , ~ _ .. _ 0.00% 27.6$% _..., .. __~__ . _ W _~ _ 32.63% __ .,,, _ __ 100.00% .. . _..._.._ _. _ . ,...~ .. Note: Excludes certain maturities for wh ich funds have already been deposited with the Trustee. 855 856 a This Schedule 3 will be amended to show only SPSA's Remaining Indebtedness to VRA (Guaranteed Bonds). In this draft, SPSA's remaining AMBAC insured and Wachovia owned or enhanced bonds are also shown. 39 7228599 DRAFT DATED March 09, 2010 1:33 PM 857 858 859 Sl'SA Post-Purchase Remaining Indebtedness to VRA 860 861 862 863 864 865 866 867 868 Schedule 4 40 7228599 DRAFT DATED February 25, 2010 3:44 PM 1 REIMBURSEMENT AGREEMENT BETWEEN 2 THE SOUTHEASTERN PUBLIC SERVICE AUTHORITY OF VIRGINIA 3 AND ITS MEMBERS WITH RESPECT TO A GUARANTY AGREEMENT 4 5 6 THIS REIMBURSEMENT AGREEMENT, made this day of , 7 2010, between the SOUTHEASTERN PUBLIC SERVICE AUTHORITY OF VIRGINIA 8 ("SPSA"), on the one hand, and its eight members, the CITY OF CHESAPEAKE, ,the CITY 9 OF FRANKLIN, the CITY OF NORFOLK, the CITY OF PORTSMOUTH, the CITY OF 10 SUFFOLK, the CITY OF VIRGINIA BEACH, the COUNTY OF ISLE OF WIGHT and the 11 COUNTY OF SOUTHAMPTON, on the other hand, in their capacity of several guarantors 12 ("Guarantors") under the Guaranty Agreement of even date herewith ("Guazanty Agreement"), 13 among the Guarantors, SPSA and U.S. Bank National Association (the "Trustee"), for the benefit 14 of the Virginia Resources Authority ("VRA"): 15 Recitals 16 R-1. Under the Guazanty Agreement, the Guarantors have severally agreed to 17 make payments ("Guazanty Payments") if and to the extent that SPSA shall not make the same in 18 respect of its (i) Senior Subordinated Revenue Bonds and/or (ii) its Guaranteed Subordinated 19 Revenue Bonds, in each case, held by or for the account of VRA and described in Schedule 3 or 2 0 Schedule 4 to the Guazanty Agreement. 21 R-2. If and to the extent that the Guazantors shall have made Guazanty Payments 2 2 under the Guazanty Agreement, the Guarantors shall to such extent be subrogated to VRA in respect 2 3 of the amount of such Guaranty Payments, and the Guarantors and SPSA have determined to enter 2 4 into this Reimbursement Agreement to provide for the repayment to the Guarantors of the amounts I-889899.4 11/03!2009 7234810 02/25/2010 DRAFT DATED February 25, 2010 3:44 PM 2 5 of their several (JUaranty Payments to VRA for the account of SPSA. 2 6 rIOW THEREFORE, in consideration of the Guarantors' several commitments 2 7 set forth in the (Juaranty Agreement, SPSA and the Guarantors agree as follows: 28 Section 1. REPAYMENT. 2 9 (~~) SPSA shall repay the Guarantors any and all amounts of Guaranty 3 0 Payments paid by the Guarantors pursuant to their respective obligations under the Guaranty 31 Agreement, including any and all related costs reasonably incurred by the Guarantors in 3 2 fulfillment of said obligations. To the extent more than one Guaranty Payment is made by the 3 3 Guarantors, or Amy of them, each individual Guaranty Payment shall be treated as a separate 3 4 repayment obligation governed by the terms of this Reimbursement Agreement. 3 5 (tI) Tlhe entire amount of any Guaranty Payment made by a Guarantor shall be 3 6 repaid by SPSA. to each Guarantor making such payment in monthly installments with each 3 7 installment being equal to the Guaranty Payment divided by the number of months in the 3 8 "Repayment Termm," defined below. 3 9 (c) In addition to the repayment obligation recited at subsection (b) above, 4 0 SPSA shall pay t~~ each Guarantor interest on the unreimbursed portion of its Guaranty Payment at 41 an annual rate equal to the "Repayment Interest Rate," defined below, as well as any and all costs 4 2 reasonably incurred by the City as a consequence of its compliance with the Guaranty Agreement. 4 3 (d) Repayment under subsections (b) and (c) above shall be due on the first, or 4 4 if the first is not ~i business day then the next business day after the first, of each month during the 4 5 Repayment Term, defined below. 46 I-889899.4 2 l 1/03/2009 DRAFT DATED February 25, 2010 3:44 PM 4 7 Section 2. REPAYMENT TERM AND RATE. 4 8 (a) The "Repayment Term" shall be the lesser of thirty-six (36) months or the 4 9 number of months remaining to and including December 31, 2017, or as otherwise agreed by the 5 0 parties by written addendum hereto. Repayment shall be made by SPSA on a monthly basis in an 51 amount calculated in accordance with Section 1 above, to include reasonable costs and interest, and 5 2 the first month of the Repayment Term shall be the second month following a Guarantor's 5 3 payment of any Guaranty Payment. Failure of SPSA to make any repayment in full in a timely 5 4 manner shall constitute default. 5 5 (b) The Repayment Interest Rate shall be a fluctuating rate of interest equal to 5 6 the LIBOR ("London interbank offered rate") Market Index Rate, plus two percent (2.00%), as 5 7 that rate may change from day to day in accordance with changes in the "LIBOR Market Index 58 Rate". The "LIBOR Market Index Rate" for any day is the rate for 1-month U.S. dollar deposits 5 9 as reported on Telerate page 3750 as of 11:00 a.m., London time for such day, provided that if 6 0 such day is not a London business day, the rate is set by the immediately preceding London 61 business day (or, if not so reported, then as determined by the City from another recognized 62 source or inter-bank quotation). Interest will accrue on any non-business day at the rate in effect 6 3 on the immediately preceding business day. 64 Section 3. PRIORITY OF OBLIGATIONS. The obligations imposed upon 65 SPSA by this Reimbursement Agreement shall be junior and subordinate to the lien of "4`" Tier 6 6 Subordinated Debt" and on a parity with the lien or liens of "5`h Tier Subordinated Debt" as 67 each of those two terms are defined in the Guaranteed Subordinated Bond Resolution adopted by 68 SPSA on May 14, 2009. I-889899.4 3 11 /03/2009 DRAFT DATED February 25, 2010 3:44 PM 6 9 Section 4. COVENANTS. 7 0 (a) Rate Covenant. SPSA shall, from time to time, fix and revise rates and charges 71 for the services and facilities of the Disposal System that in the aggregate, together with its 7 2 reserves, will be sufficient to meet all of its obligations allocable to the Disposal System, 7 3 including its obligations under this Reimbursement Agreement. 7 4 (1>) Enforcement of Use and Support Agreements. SPSA covenants, for the 7 5 benefit of the Guarantors, that the Authority will defend and enforce the provisions of the Use 7 6 and Support Agreements with each of its members in accordance with its terms. 77 (c.) Compliance with and Enforcement of the Service Agreement. SPSA 7 8 covenants, for the benefit of the Guarantors, that SPSA will comply with, and defend and 7 9 enforce, the pro~risions of the Service Agreement dated as of September 9, 2009, as amended, 8 0 with Wheelabrat~~r Technologies, Inc. 81 (d.) Additional Indebtedness. SPSA covenants, for the benefit of the 8 2 Guarantors, that SPSA will borrow no money and in evidence thereof issue any bonds, notes or 8 3 other evidences of indebtedness, enter into any installment purchase, lease purchase, sale or 8 4 lease-leaseback transactions or incur any additional certificated indebtedness (collectively, 8 5 "Additional Indebtedness") without the prior consent of each Guarantor; provided, however, that 8 6 SPSA may, without such prior consent, issue any Additional Indebtedness in the following 8 7 circumstances: (i) for any lawful purpose of the Authority, not to exceed $10,000,000 in 8 8 aggregate principal amount outstanding at any one time, and, (ii) direct and indirect obligations 8 9 incurred, as required by the Virginia Department of Environmental Quality, for financial 9 0 assurance relatin;; to the capital costs associated with the closure of the Authority's landfill and 1-889899.4 4 11/03/2009 DRAFT DATED February 25, 2010 3:44 PM 91 other facilities. 92 Section 5. TERMINATION. This Reimbursement Agreement shall remain in 9 3 effect at all times during which the Guaranty Agreement remains in effect and during which any 9 4 repayments remain due hereunder. g 5 Section 6. AMENDMENTS. This Reimbursement Agreement may not be 9 6 amended or supplemented except by written agreement of both parties. 97 Section 7. SEVERABILITY. If any clause, provision, or section of this 9 8 Reimbursement Agreement shall be held illegal or invalid by any court, the illegality or 9 9 invalidity of such clause, provision, or section shall not affect any of the remaining clauses, 10 0 provisions, or section hereof, and this Reimbursement Agreement shall be construed and 101 enforced as if such illegal or invalid clause, provision, or section had not been contained herein. 102 In case any question should arise as to whether any provision contained herein shall be in 10 3 violation of law, then such provision shall be construed to be the agreement of the parties hereto 10 4 to the full extent permitted by law. 105 Section 8. GOVERNING LAW. This Reimbursement Agreement shall be 10 6 governed by and construed in accordance with the laws of the Commonwealth of Virginia. 10 7 Section 9. COUNTERPARTS. This Reimbursement Agreement may be 10 8 executed in several counterparts, each of which shall be deemed an original copy and all of 10 9 which together shall constitute one agreement binding on the parties hereto. 110 Section 10. NO THIRD PARTY BENEFICIARIES. This Reimbursement 111 Agreement is solely for the benefit of the parties hereto, and no other person shall have any 112 rights or benefit of the terms and provisions hereof. I-889899.4 5 11/032009 DRAFT DATED February 25, 2010 3:44 PM 113 ~~ection 11. NOTICES. Any notice given under this Reimbursement Agreement 114 shall be given in the same manner and to the same addresses as provided in the Guaranty 115 Agreement. 116 117 i-ss9s99.a 6 11/03/2009 DRAFT DATED February 25, 2010 3:44 PM 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 SOUTHEASTERN PUBLIC SERVICE AUTHORITY OF VIRGINIA By: Executive Director (Corporate seal) ATTEST: [Assistant]Secretary [-889899.4 11/03/2009 7 DRAFT DATED February 25, 2010 3:44 PM 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 ATTEST: City Clerk APPROVED A,S TO FORM: Deputy City Attorney I-889899.4 11/03/2009 8 CITY OF CHESAPEAKE, VIRGINIA By: Title: DRAFT DATED February 25, 2010 3:44 PM 161 CITY OF FRANKLIN, VIRGINIA 162 BY~ 163 164 (Corporate seal) 165 ATTEST: 166 167 Clerk 16 8 Approved as to form: 169 17 0 City Attorney 171 t-ss9s99.a 9 11/03!2009 DRAFT DATED February 25, 2010 3:44 PM 172 173 174 175 17 6 (Corporate seal) 177 ATTEST: 178 17 9 Clerk 18 0 Approved as to i orm: 181 18 2 City Attorney 183 CITY OF NORFOLK, VIRGINIA By: --ss9s~.a 10 > vo3noo9 DRAFT DATED February 25, 2010 3:44 PM 184 185 186 18 7 (Corporate seal) 18 8 ATTEST: 189 19 0 Clerk 191 Approved as to form: 192 193 City Attorney 194 I-889899.4 1 U03/2009 CITY OF PORTSMOUTH, VIRGINIA By: 11 DRAFT DATED February 25, 2010 3:44 PM 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 (Corporate seal) ATTEST: Clerk Approved as to i:orm: City Attorney I-889899.4 11/03/2009 CITY OF SUFFOLK, VIRGINIA By: 12 DRAFT DATED February 25, 2010 3:44 PM 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 CITY OF VIRGINIA BEACH, VIRGINIA (Corporate seal) ATTEST: Clerk Approved as to form: City Attorney I-889899.4 11/03/2009 By: 13 DRAFT DATED February 25, 2010 3:44 PM 2 3 3 COUNTY OF ISLE OF WIGHT, VIRGINIA 234 gy. 235 2 3 6 (Corporate seall 237 ATTEST: 238 2 3 9 Clerk 2 4 0 Approved as to :form: 241 2 4 2 County Attorney 243 t-ss9s99.a 14 11/03/2009 DRAFT DATED February 25, 2010 3:44 PM 244 245 246 2 4 7 (Corporate seal) 248 ATTEST: 249 250 Clerk 2 51 Approved as to form: 252 2 5 3 County Attorney I-889899.4 11/03!2009 COUNTY OF SOUTHAMPTON, VIRGINIA By: 15 ~esalutinn WHEREAS: On October 1, 2009, Captain William W. Bill" Crow, after much forward thinking, successful execution and o winning combination of def ense dollars, hosted the long awaited "Joint Bosing" of the Naval Amphi6lous Base little Creek and Fort Story, now known as the Joint Expedkionary Base Llttk Crcek-Fort Story" !n the City of Vlrglnla Beach; WHEREAS: Coptaln Crow was born and raised Tn Morganfkld, Kentucky, graduated and earned his Bachebr of Science degree from the United States Naval Academy in 1980, he attended the Notional Defense University Industrial College of the Armed forces and was awarded o Master of Science degree In 1997; WHEREAS: Hls of-sea assignments Include Oiviskm OJrlcer billets, Chief Engineer !n USS PHARRIS; Assistant Operations Commander Destroyer Squadron Twenty-Six; extended Department Head tour as Chkf Engineer in USS BR/SCOE; Material Officer for Commander Destroyer Squadrons Ten and Two; Executive Officer of USS PETERSON; Commanding Officer of USS AUSTIN; and, Trolninp and Readiness Assistant Chkf of Staff for Commander Amphibious Group Two. Ashore, he served as Instructor at SWOSCLCOM for Steam Enpineering; SWO Programs Officer for COMNAVSURFLANT,• ChleJStafJ Officer to the Commandant Naval Oistrkt Washington; COMOPTEVOR Surface Warfare Director; and, as Executive Officer Naval Station Norfolk. He assumed duty as Commanding OJfker, Novo/ Amphibious Base Llttk Crcek in December 2006 and become the Commanding Officer, Joint Expeditionary Base Llttk Crcek-Fart Story, with its official opening October First, Two Thousand Nine; WHEREAS: Coptaln Crow's personal awards Include Jive Meritorious Service Medals Jhrc Navy and Marine Corps Commendotlon Medo/s; and, two Novy and Marine Corps Achkvement Medals; WHEREAS: Coptaln Crow is married to the formerJeonne Boucher oJChesapeoke and they hove two aduk children: a son, John, and o daughter, Koren, os well as two college student children, o daughter, Sara, and a son, Kevin; and, WHEREAS: Coptaln Crow was very Instrumental in consolidoting the delhrery of Installation Support Junctions, significant Jlnonclal savings and more flexibility Jor best business practices to ensure war fighting capabilities arc preserved in this h(storlc military Clry of Vlrglnla Beach. Since 2007, B(ll worked diligently, first to ensure the defense, second the safety and third the least impact on personnel of little Creek and FoR Story to bring this /olnt Bose to fruklon. NOW, THEREFORE, BF IT RESOLVED: That the Vlrglnla Beach Clty Council rccopniie Coptaln Bill Crow as the LEADER OF THE DAY" and express sincere gratitude to him for his foresight his tenacity to manage every minute detail of this Joint Basing and ensuring this milltory Installation H of its rlphtful krcation, Vlrglnla Beath. BE /T FURTHER RESOLVED: That the City Council express sincere congrotu/atlons to our Friend, Blll Crow, on the occasion of h/s retirement with an exemplary caner in the United States Navy. ~~ ~~ ~jt~SwAet~tto t Lo ~`` G R. Dovls a H611 District 9 Fr VJ(fiWr "D eph-At La ge a E. -Kern 1 Di id Po r<M. " yer-Centerville District 1 r Ia . H le Princess Anne .o R. !ones - ' yslde glstrlct 4,- Vke Mayor n - och District 6 Rosemary Wilson {g(Lorge ~ ~ ~ / ,~j ~ ~ "„ _ James y("Jl-h~Wood - L ynnhoven District S Wll/lon. D. 1N111" Sessoms -Mayor Ku e£~+ ~r & ~ ~~~~v CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: A Resolution to Establish the Clean Community Commission as an Advisory Commission to City Council MEETING DATE: March 23, 2010 ^ Background: More than thirty years ago, the then-mayor of Virginia Beach, Mayor Standing, created the Virginia Beach Mayor's Clean Community Commission. Its task was to promote litter prevention, recycling, beautification and general environmental awareness through educational projects. As a result of a series of events over the past several years, the commission changed from a commission appointed by the Mayor into one in which the current membership selects its own members and neither the Mayor nor City Council plays any role in appointments. ^ Considerations: This resolution will establish the Clean Community Commission as an official advisory commission to City Council. The commission will consist of up to eleven members, all of whom shall be appointed by City Council. Initial appointments will be staggered; thereafter, members shall be appointed to three-year terms. City Council will appoint the first chairperson; thereafter, the members of the commission will elect one of the members to serve as chairperson. ^ Public Information: This item will be advertised in the same manner as other agenda items. ^ Attachments: Resolution Requested by Councilmember Dyer REQUESTED BY (;OUNCILMEMBER DYER 1 A RESOLUTION TO ESTABLISH THE CLEAN 2 COMMUNITY COMMISSION AS AN ADVISORY 3 COMMISSION TO CITY COUNCIL 4 5 6 BE IT F;ESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 7 VIRGINIA: 8 9 That City Council hereby establishes the Clean Community Commission as an 10 advisory commission to City Council. The commission shall consist of up to eleven 11 members, all c-f whom shall be appointed by City Council. Of those first appointed, 12 three members shall be appointed for a term of one year; four for a term of two years; 13 and four for a term of three years. Thereafter, all appointments shall be made for three 14 years. City C~~uncil shall appoint one of the eleven members to serve as the first 15 chairperson. The Council-appointed chairperson shall serve in that capacity until June 16 30, 2011. Thereafter, the commission shall elect one of its members to serve as 17 chairperson. Tl~e commission also may elect avice-chairperson and such other officers 18 as the commission may deem appropriate. Adopted by the Council of the City of Virginia Beach, Virginia on the day of , 2010. APPROVED A~i TO LEGAL SUFFICIENCY: ~~/ City Attorney's Offic CA11475 R-1 March 17, 2010 ~.^~,/~~ Mk~y~ z i!= ~ ,.. '~. ..~ CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: A Resolution to Change the Name of the Animal Control Building to the "Virginia Beach Animal Care and Adoption Center" MEETING DATE: March 23, 2010 ^ Background: The City of Virginia Beach's Animal Control Building has been in place since the mid-1970s. Recently, reorganization has taken place which has separated the enforcement component from the care of animals that occurs in this building. Knowing the functions of the former Animal Control Bureau were going to be altered, the Police Department solicited input from citizens as to what the facility should be called to better represent its current mission. The name which received the highest number of votes was "Virginia Beach Animal Care and Adoption Center." ^ Considerations: This new name will be placed on the existing building and any future building with like missions. ^ Public Information: Public information will be provided through the normal Council agenda process. ^ Recommendations: Approval. ^ Attachments: Resolution and Location map. Recommended Action: Approval Submitting DepartmentlAgency: c~~w.~, City Manager: k' '~~' Management Se ce(s/F ilities Management Office 1 l~ RESOLUTION TO CHANGE THE NAME OF THE 2 ~~NIMAL CONTROL BUILDING TO THE "VIRGINIA 3 E3EACH ANIMAL CARE AND ADOPTION CENTER" 4 5 6 BE IT I~ESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 7 VIRGINIA: 8 9 That thE: name of the Animal Control Building is changed to the "Virginia Beach 10 Animal Care aind Adoption Center." 11 12 Adopted by the City Council of the City of Virginia Beach, Virginia, this 13 day of , 2010. APPROVED AS TO CONTENT: ~~~' Management Service APPROVED AS TO LEGAL SUFFICIENCY: :~ . City Attorney's Office CA11437 R-1 March 11, 201() ~<.. r ~°~ b~h1~ 4' ~ z ~i _ _~ ,.. °~~w a....,~' CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance Authorizing the City Manager to Execute the Virginia Beach Field House Emergency Shelter Agreement with Virginia Beach Field House, L.L.C. MEETING DATE: March 23, 2010 ^ Background: The City of Virginia Beach has leased 12.7 acres of property adjacent to the Sportsplex to Virginia Beach Field House, L.L.C. ("VBFH") for the construction and operation of a privately owned indoor field house (the "Field House"). The Field House is currently under construction and is expected to be open to the public in September of 2010. City staff identified the Field House as a potential site for use as an emergency shelter in the event of a natural disaster or severe weather event. City staff and representatives of VBFH have agreed to certain design changes and enhancements to the Field House to render it more suitable for use as an emergency shelter in the event of a natural disaster or other emergency (the "Shelter Improvements"). The Shelter Improvements are proposed to be paid for by the City at a cost not to exceed $410,000. City Council approved the creation of CIP 3-150, Virginia Beach Field House Emergency Shelter, to fund the Shelter Improvements. City staff and representatives of VBFH have also agreed to certain terms and conditions governing the City's use of the Field House as an emergency shelter after the construction of the Shelter Improvements. The agreement for the construction of the Shelter Improvements and the subsequent use of the Field House as an emergency shelter is set forth in the proposed Virginia Beach Field House Emergency Shelter Agreement (the "Shelter Agreement"), as described in the Summary of Terms. ^ Considerations: Use of the Field House as an emergency shelter would allow the City to provide a needed service to its citizens in the event of a natural disaster. The Shelter Improvements would result in the Field House being able to withstand more severe weather conditions than any other shelter available in the City. ^ Public Information: Advertisement of the City Council agenda. ^ Recommendations: Adopt the ordinance authorizing the City Manager to enter into the Shelter Agreement. ^ Attachments: Ordinance Summary of Terms Recommended Action: Approval Submitting DE~partment/Agency: City Manager City Managed rr-QS ~~- ~M 1 AN ORDINANCE AUTHORIZING THE CITY 2 MANAGER TO EXECUTE THE VIRGINIA BEACH 3 FIELD HOUSE EMERGENCY SHELTER 4 AGREEMENT WITH VIRGINIA BEACH FIELD 5 HOUSE, L.L.C. 6 7 WHEREAS, the City of Virginia Beach (the "City") has leased approximately 12.7 8 acres of property adjacent to the Sportsplex to Virginia Beach Field House, L.L.C. ("VBFH") 9 for the purpose of the construction and operation of an indoor field house (the "Field 10 House"); and 11 12 WHEREAS, the City and VBFH have negotiated for certain design changes and 13 improvements to the Field House for the purpose of making the Field House appropriate 14 for use by the City as an emergency shelter (the "Shelter Improvements"); and 15 16 WHEREAS, in Ordinance ORD-3102P, the City Council approved the creation of 17 CIP3-150, Virginia Beach Field House Emergency Shelter, to fund the Shelter 18 Improvements; and 19 20 WHEREAS, the City and VBFH have agreed to certain terms and conditions 21 governing the City's use the Field House as an emergency shelter as set forth in the 22 Virginia Beach Field House Emergency Shelter Agreement, as summarized, along with a 23 summary of the Shelter Improvements, on the Summary of Terms attached hereto as 24 Exhibit A; and 25 26 WHEREAS, the use of the Field House as an emergency shelterwill allow the City 27 to better provide for the general health, safety and welfare of the residents of the City. 28 29 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 30 VIRGINIA BEACH, VIRGINIA: 31 32 That the City Manager, or his designee, is hereby authorized to execute an 33 agreement with Virginia Beach Field House, L.L.C. for the construction of additional 34 improvements to the field house adjacent to the Sportsplex (the "Field House"), and forthe 35 use by the City of the Field House as an emergency shelter, in accordance with the 36 Summary of Terms, attached hereto as Exhibit A and made a part hereof, and such other 37 terms, conditions or modifications as may be acceptable to the City Manager and in a form 38 deemed satisfactory by the City Attorney. 39 40 Adopted by the Council of the City of Virginia Beach, Virginia, on the day of 41 , 2010. APPROVED AS TO CONTENT: T ~~ City Man ger's Office APPROVED AS GAL SUFFICIENC City Attorney's Office CA-11395 V:\applications\citylawprod\cycom32\W pdocs\D012\P003100059809. DOC R-1 3/17/10 EXHIBIT A SUMMARY OF TERMS DEVELOPER/ OPERATOR: Virginia Beach Field House, L.L.C. ("VBFH") SCOPE OF CITY-FUNDED IMPROVEMENTS TO FIELD HOUSE: (1) Exterior Improvements to windows and doors to allow Field House to withstand sustained winds up to 110 m.p.h., and three second wind gusts of up to 130 m.p.h, and impact of flying debris of up to 9 pounds at 44 m.p.h. (2) Enhanced electrical components to allow City to power entire Field House with an appropriately sized mobile external generator (to be provided by City as needed) and allow City use as emergency shelter. Electrical system to be tested for City's needs prior to final payment to VBFH. CITY-FUNDED COSTS: Costs of upgrades to the Field House, to make it suitable for use as an Emergency Shelter, not to exceed $410,000. Costs to be verified by City prior to payment. CHANGE ORDERS: Costs associated with any Change Order will be negotiated at the time of the discovery of an unforeseen condition or at the time of any City-initiated request for a change. Change Orders must be in writing and be mutually agreed on. Change Orders may not exceed the total amount to be paid by the City by more than $50,000 or twenty-five percent (25%) of the original amount of the construction contract, whichever is greater, without the advance written approval of City Council. TERMS AND CONDITIONS OF CITY'S USE OF FIELD HOUSE AS SHELTER: City has right to use Field House after declaration of State of Emergency by City Manager. VBFH to provide facility manager, maintenance supervisor and kitchen staff to assist City staff. Page 1 of 2 City to pay VBFH $10,000 per day for use of Field House as a Shelter. This amount shall compensate VBFH for all labor and utility costs incurred. City shall pay for all material (food, paper products, etc.) consumed. City to restore Field House to substantially same condition after use as a shelter. Page 2 of 2 ~°~ 4` ~ i ~;,w` CITY OF VIRGINIA BEACH AGENDA ITEM J ITEM: An Ordinance to authorize existing Temporary Encroachments into a portion of the City Right-of-Way known as Lauderdale Avenue, for Jane W. Steinhilber MEETING DATE: March 23, 2010 ^ Background: Jane W. Steinhilber has requested permission to maintain an existing serpentine brick wall, 4 brick columns, and landscape boulders, all in a portion of the City's right-of-way known as Lauderdale Avenue, and located adjacent to Ms. Steinhilber's property of 4821 Lauderdale Avenue, Virginia Beach, Virginia. This encroachment came about by a complaint received in the Public Works Real Estate office. Upon investigation of the property an encroachment of an existing serpentine brick wall, 4 brick columns, and landscape boulders were all found in a portion of City right-of-way. The property owner was notified and subsequently submitted an encroachment application. S M Masonry constructed the wall on August 25, 2008. No record of any permits being issued was found. There are no other encroachments of this nature located in the right-of-way in the area. ^ Considerations: City Staff has reviewed the requested encroachments and has recommended denial based on the following: • This encroachment is approximately 17.6' from the property line into the right-of-way at the closest point. Also, the current wall appears to be about 3' from the sanitary sewer at the closest point. A separation of 10' must be maintained from the existing sanitary sewer main to allow for safe excavation when repairs are necessary. • The proposed brick walls and brick columns are too close to the roadway pavement and there are large rocks/stones (landscape boulders) in the right-of-way. These items cause a safety clear zone issue. The brick walls should be at least 7' away from the edge of the road and the large rocks/stones should be removed from the right-of-way. • The frontage of the property is approximately 50 feet and the existing encroachment has eliminated approximately five (5) perpendicular parking spaces and three (3) parallel parking spaces in this area. • The height of the brick columns in the wall range from 4.0' to 5.4'. The maximum height for awall/fence in a front yard is 4'. Since this encroachment creates an extended front yard into the public right-of-way, the encroachment within the right-of-way should not exceed 4' in height. ^ Public Information: Adverti:~ement of City Council Agenda. ^ Alternatives: ApprovE~ the encroachments as presented, deny the encroachments, or add conditions as desired by Council. ^ Recomimendations: Deny the request. ^ Attachrnents: Ordinance, Agreement, Plat, Pictures and Location Map Recommended Action: Denial of the ordinance. Submitting DE~partment/Agency: Public Works/Re state l+Gky f. L`"7 - ~i-, City Manageri ~.a.S ~ ,~~ 1 Requested by Department of Public Works 2 3 AN ORDINANCE TO AUTHORIZE EXISTING 4 TEMPORARY ENCROACHMENTS INTO A 5 PORTION OF THE RIGHT-OF-WAY KNOWN 6 AS LAUDERDALE AVENUE, FOR JANE W. ~ STEINHILBER 8 9 WHEREAS, Jane W. Steinhilber desires to maintain an existing serpentine brick 1 o wall, 4 brick columns, and landscape boulders, all within a portion of the City's right-of- 11 way known as Lauderdale Avenue, in the City of Virginia Beach, Virginia; and 12 13 WHEREAS, City Council is authorized pursuant to §§ 15.2-2009 and 15.2-2107, 14 Code of Virginia, 1950, as amended, to authorize temporary encroachments upon the 15 City's right-of--way, subject to such terms and conditions as Council may prescribe. 16 17 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 18 VIRGINIA BEACH, VIRGINIA: 19 That pursuant to the authority and to the extent thereof contained in §§ 15.2- 20 2009 and 15.2-2107, Code of Virginia, 1950, as amended, Jane W. Steinhilber, her 21 heirs, assigns and successors in title, is authorized to maintain existing temporary 22 encroachments for a serpentine brick wall, 4 brick columns, and landscape boulders, in 2 3 a portion of the City's right-of-way as shown on the map marked Exhibit "A" and entitled: 24 "EXHIBIT A SHOWING RIGHT-OF-WAY ENCROACHMENTS OF LOTS 29 & 30, 25 BLOCK 17 CHESAPEAKE PARK INTO LAUDERDALE AVENUE VIRGINIA BEACH, 26 VIRGINIA," a copy of which is on file in the Department of Public Works and to which 2 7 reference is made for a more particular description; and 28 29 BE IT FURTHER ORDAINED, that the temporary encroachments are expressly 30 subject to those terms, conditions and criteria contained in the Agreement between the 31 City of Virginia Beach and Jane W. Steinhilber (the "Agreement"), which is attached 32 hereto and incorporated by reference; and 33 34 BE IT FURTHER ORDAINED, that the City Manager or his authorized designee 35 is hereby authorized to execute the Agreement; and 36 37 BE IT FURTHER ORDAINED, that this Ordinance shall not be in effect until such 38 time as Jane W. Steinhilber and the City Manager or his authorized designee execute 3 9 the Agreement. 40 41 Adopted by the Council of the City of Virginia Beach, Virginia, on the day 4 2 of _ _, 2010. CA-11002 X:lO1D\REAL ESTATE1Encroachments\PW Ordinances\CA11002 Steinhilber Ordiance.doc V:lapplications\dtylawprod\cycom32\W pdoc51D024\P006\00045392.1100 R-1 PREPARED: 1 /25/10 APPROVED AS TO CONTENTS C' . C~c~,~.scr, BLIC WORh~S, REAL APPROVED AS TO LEGAL FFICIENCY AND FORM Nel .Ford, Special Council for the City Attorney 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 1~ day of , 2009, by and between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation of the Commonwealth of Virginia, Grantor, "City", and JANE W. STEINHILBER, HER HEIRS, ASSIGNS AND SUCCESSORS IN TITLE, "Grantee", even though more than one. WITNESS ETH: That, WHEREAS, the Grantee is the owner of those certain lots, tracts, or parcels of land designated and described as "Lot 29 and Lot 30", in Block 17, as shown on that certain plat entitled: "CHESAPEAKE PARK Property of LYNNHAVEN REALTY CORPORATION 319-321 Seaboard Bank Bldg. NORFOLK, VA." and "CHESAPEAKE PARK PRINCESS ANNE Co. Va." and said plats are recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Map Book 4, at page 47 and in Map Book 6, at page 123, respectively, and being further designated, known, and described as 4821 Lauderdale Avenue, Virginia Beach, Virginia 23455; WHEREAS, it is proposed by the Grantee to maintain an existing serpentine brick wall, 4 brick columns, and landscape boulders, collectively, the "Temporary Encroachment", in the City of Virginia Beach; WHEREAS, in maintaining the existing Temporary Encroachment, it is necessary that the Grantee encroach into a portion of an existing City right-of-way known as Lauderdale Avenue, the "Encroachment Area"; and GPIN: 1570-52-3519-0000; City Right-of Way NO GPIN ~J1/HEREAS, the Grantee has requested that the City permit the Temporary Encroachment within the Encroachment Area. ~JOW, "~l'HEREFORE, 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 hared 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 sF~own on that certain plat entitled: "EXHIBIT A SHOWING RIGHT-OF-WAY ENCROACHMENTS OF LOTS 29 & 30, BLOCK 17 CHESAPEAKE PARK INTO LAUDERDALE A\/ENUE VIRGINIA BEACH, VIRGINIA," a copy of which is atl;ached hereto as Exhibit "A" and to which reference is m~~de 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. 2 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, 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 constnaction 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 Department of Planning 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 3 the amount of two times their engineer's cost estimate, to the Department of Planning to guard against damage to City property or facilities during construction. 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 naimed insured or loss payee, as applicable. The Grantee also agrees to cant' comprel~ensive 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 endorsement;> 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 assui~nes all responsibilities and liabilities, vested or contingent, with relation to the construction, location, and/or existence of the Temporary Encroachment. It is further expressly understood and agreed that the Temporary Encroachment: must conform to the minimum setback requirements, as established by the City. li: 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 (amity 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 4 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 pena Ity in the sum of One Hundred Dollars ($100.00) per day for each and every day that the Temporary Encroachment is allowed to continue thereafter, and may collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. IN WITNESS WHEREOF, Jane W. Steinhilber, the said Grantee, has caused this Agreement to be executed by her 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. (THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK) 5 CITY OF VIRGINIA BEACH By STATE OF VIIRGINIA CITY OF VIRGINIA BEACH, to-wit: (SEAL) City Manager/Authorized Designee of the City Manager The foregoing instrument was acknowledged before me this day of _, 2010, by CITY MANAGER/AUTHORIZED DESIGNEE O~F THE CITY MANAGER OF THE CITY OF VIRGINIA BEACH, VIRGINIA, on its behalf. He/ShE; is personally known to me. Notary Registration Number: My Commission Expires: (SEAL) ATTEST: City Clerk/Authorized Designee of the City Clerk STATE OF VIFGINIA CITY OF VIRGINIA BEACH, to-wit: Notary Public (SEAL) The foregoing instrument was acknowledged before me this day of _, 2010, 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. Notary Public Notary Registr~ition Number: My Commission Expires: (SEAL) 6 ,/ ~V ' J e W. Steinhilber STATE OF V L~ ('° 1. ~ ~ ^ CITY/COUNTY OiJ ~u~ ~ . , to-wit: The foregoing instrument was acknowledged before me this ~~day of 2009, by Jane W. Steinhilber. ~., (SEAL) Notary P blic Notary Registration Number: ~ "l3y l ~~~~y~..,...., I ~ J ~ ~ ~ `~~ NATAUE '~ My Commission Expires: ~ ~. M, ~g . . Z ~ 110.1pN~ i '• ~~~ APPROVED AS TO CONTENTS c . ,~ NATURE APPROVED AS TO LEGAL SUFFICIENCY AND FORM ~~ Nell .Ford, Special Counsel for the City Attorney Ply Kf.~j ~s~E DEPARTMENT X:\Projects\Encroachments\Applicants\Steinhilber, Jane - KMJ\CA11002 Steinhilber Encroachment Agreement-NFL Revised Final 05-21-2009[1].doc 7 LOT ci 0.2' IN LOT 31 6' WOOD FENCE LOT 10 LOT 11 = LOT ~ 30 : :LOT 29;''• CQNC~ 8R CK _~ J 't i. t1, LEGEND ~ =LANDSCAPE BOULDER [4.1'] ' W~AL~L ME~ASURaEDU~F"RO~M ADJACENT GROUND 0.9' OUT 0.2' IN EDGE OF PAVEMENT n 0 2.8' 2T o 0 ~ FR~EY co ~ 4821 .. r- [4.1'] [4.11 TH qp'1 ~~d V WARD M. HOLME:- ~w uc. No.1403 y 1 LOT 12 -(~ LOT 28 0.5' OUT ~ BOULD~R ~ ~ ai of ^5.3'] [4.0'~ BRICK COLUMN L~4 UDERDALE A I/ENUE EXHIBIT A [2.8'] SHOWING RIGHT-OF-WAY 3.1'] ENCROACHMENTS OF LOTS 29 & 30, BLOCK 17 CHESAPEAKE PARK INTO LAUDERDALE AVENUE VIRGINIA BEACH, VIRGINIA 8-26-09 S'~JIE, S , ~ ~Cy' ''~ ~~ ~~~-~ ~_~ CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Accept and Appropriate State Reimbursements to the Clerk of the Circuit Court's FY 2009-10 Technology Trust Fund MEETING DATE: March 23, 2010 ^ Background: The Clerk of the Circuit Court assesses court technology fees in the manner provided by law. The technology fees assessed by the Clerk are paid to the state. The State Compensation Board provides these funds to the City to reimburse the City for purchases and/or ongoing system maintenance fees made for technology purposes. For FY 2009-10, the Clerk's Office has been approved for $240,000 in funding from the Technology Trust Fund. This funding will support the Clerk's Office annual software maintenance for the AiLIS (Land Records system), for the software maintenance for the AiCMS (Case Management system), and computer equipment, installation, and software change orders. ^ Considerations: This appropriation will not require any additional funding from the City. The appropriation gives the Clerk's Office the ability to spend the funds with state revenue offsetting the appropriation. ^ Public Information: Public information will be handled through the normal Council agenda process. ^ Alternatives: Not appropriating the funding will result in loss of state revenues for use in technology. ^ Recommendations: Accept and appropriate $240,000.00 in state revenue to the Clerk of the Circuit Court's Technology Trust Fund. ^ Attachments: Ordinance Recommended Action: Approval Submitting DepartmentlAgency: Clerk of the Circuit Court City Manager: S ~ , ~( ~. ~ i~N ORDINANCE TO ACCEPT AND APPROPRIATE 2 STATE REIMBURSEMENTS TO THE CLERK OF 3 "THE CIRCUIT COURT'S FY 2009-10 TECHNOLOGY 4 "f RUST FUND 5 6 WHEREAS, the Clerk of the Circuit Court has received $240,000 of 7 reimbursements from the Virginia Compensation Board for technology purposes. 8 9 NOW, "THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 10 VIRGINIA BE~~CH, VIRGINIA: 11 12 That state reimbursements in the amount of $240,000 are accepted and 13 appropriated, with a corresponding increase in state revenues, to the Clerk of the Circuit 14 Court's FY 2009-10 Technology Trust Fund. Adoptecl by the Council of the City of Virginia Beach, Virginia on the day of , 2010. Requires ~~n affirmative vote by a majority of all of the members of City Council. APPROVED A'S TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: ~~.. . Management Services C' y's Office CA11469 R-2 March 2, 2010 ru ee',~ ~~~~~ s CITY OF VIRGINIA BEACH AGENDA ITEM __ ITEM: An Ordinance to Accept and Appropriate Grant Funds from Smart Beginnings South Hampton Roads to the FY 2009-10 Operating Budget of the Library Department MEETING DATE: March 23. 2010 ^ Background: In August 2009, the Virginia Beach Public Library was awarded $122,700 from Smart Beginnings South Hampton Roads (SBSHR) and $5,000 in matching funds from the Friends of the Virginia Beach Public Library. The $122,700 was part of a five-year, $500,000 grant from SBSHR. The $122,700 award was a portion of the first year during which the City could apply for a total of $180,000, which required a $20,000 match from the City. SBSHR requested that the Virginia Beach Public Libraries submit a revised proposal for the shared professional development portion of the grant. This revised proposal was submitted in December 2009. As a result of these revisions, SBSHR granted an additional $24,450, bringing the total grant award for year one to $147,150. The revised proposal also includes the remaining year one local match of $15,000, of which $2,000 is being provided by the Virginia Beach City Public Schools and the remaining $13,000 is comprised of in-kind contributions from the City's GrowSmart program. ^ Considerations: This five-year grant opportunity for the City of Virginia Beach requires a local match of $500,000 over the life of the grant. A portion of this match will be in the form of in-kind contributions in the first two years of the grant, and funds from the GrowSmart (formerly Ready to Learn) operating budget can be used in years three through five. The Friends of the Virginia Beach Public Library have agreed to fund an additional $5,000 in matching funds in year two of the grant. If sufficient matching funds cannot be obtained through these means, the Library Department is prepared to reallocate resources from the Department's operating budget in order to meet the matching requirements of the grant. Although the City will not be applying for the full $180,000 available in year one of the grant, SBSHR has assured staff that the remaining $32,850 will be available to be applied for in future years of the grant. ^ Public Information: Public information will be handled through the normal Council agenda process. ^ Recommendations: Accept and appropriate the grant of $24,450 from SBSHR. ^ Attachments: Ordinance Recommended Action: Approval ,,.~ S Submitting Department/Agency: Virginia Beach Department of Public Libraries City Manager: 1 k ~ ~,.~ 1 .AN ORDINANCE TO ACCEPT AND APPROPRIATE GRANT 2 FUNDS FROM SMART BEGINNINGS SOUTH HAMPTON 3 ROADS TO THE FY 2009-10 OPERATING BUDGET OF 4 'THE LIBRARY DEPARTMENT 5 6 WHEREAS, Smart Beginnings South Hampton Roads has awarded the City an 7 additional $24,450, bringing the total grant award for FY 2009-10 to $147,150; and 8 9 WHEREAS, the remaining matching funds for FY 2009-10 are available in the 10 amounts of $x!,000 from the Virginia Beach City Public Schools and $13,000 in the form 11 of in-kind contributions from the City's GrowSmart program. 12 13 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 14 VIRGINIA BE~~CH, VIRGINIA: 15 16 That $x!4,450 is hereby accepted from Smart Beginnings South Hampton Roads 17 and appropri~~ted, with estimated revenues increased accordingly, to the FY 2009-10 18 Operating Budget of the Library Department. Adopte~j by the Council of the City of Virginia Beach, Virginia, on this day of , 2010. Requires .an affirmative vote by a majority of all of the members of City Council. APPROVED A,S TO CONTENT - ~ ~ ~~ C~ ~~ _~- ~ ~ ~, Management ~~ervices APPROVED AS TO LEGAL SUFFICIENCY: City ney s ffice CA11473 R-2 March 11, 2010 K. PLANNING 1. Application of TAMI WALKER MOOK for a Conditional Use Permit re small engine repair at 501 Virginia Beach Boulevard. DISTRICT 6 -BEACH DEFERRED FEBRUARY 23, 2010 RECOMMENDATION APPROVE 2. Application of ROBERT RAMSAY for a Conditional Use Permit re a firewood preparation at 3025 New Bridge Road. DISTRICT 7 -PRINCES ANNE STAFF'S RECOMMENDATION APPROVE PLANNING COMMISSION'S RECOMMENDATION DENY 3. Ordinance to AMEND § 111 and ADD §217 of the City Zoning Ordinance (CZO) re requirements for monument and electronic display signs (LED) (deferred February 9 and March 9, 2010). RECOMMENDATION DEFER TO MARCH 30, 2010 ,,~ i ~~! '.F~~M~\;~Y 1 ..'~~T w f NOTICE OF PUBLIC HEARING '~;rginia Beach City Council will meet in the Chamber at City Hall, Municipal Center, ::401 Courthouse Drive, Tuesday, :March 23, 2010, at 6:00 p.m. The following applications wrll be heard: PRINCESS ANNE DISTRICT Robert Ramsay Aaplication: Conditional Use Permit for a firewood preparation facility at 3025 New Bridge Road. All interested citizens are invited to attend. Ruth Hodges Fraser, MMC City Clerk Copies of the proposed ordinances, resolutions and amendments are on file and may be examined in the Department of Planning or online at 1-ttu://www.vbaov.com/oC For information :all 385-4621. If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFlCE at 385-4303. Beacon March 7 & 14, 2010 21081232 -64- Item K 6. PLANNING ITEM # 59696 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council DEFERRED TO March 23, 2010, BY CONSENT, Ordinance upon application of TAMI WALKER MOOK for a Conditional Use Permit re small engine repair at S01 Virginia Beach Boulevard. Ordinance upon application of TAMI WALKER MOOK for a Conditional Use Permit re small engine repair at SOl Virginia Beach Boulevard. GPIN# 24270636540000 DISTRICT 6 -BEACH Voting: 11-0 (By Consent) Council Members Voting Aye: Rita Sweet Bellitto, 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, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None February 23, 2010 slap AI-( yap Not tc Scale Tami W~ilzPr Mnn f3 i ..,~ RT3 RT3. ~t = ~ i s 1 a ._~ 1 ! `-_ { ti a ~`~ z °~ 11 \ ,Rrj ,,t` ~ t ',~ ~ _ _m~ ~.;~ ;, ~ ~5D i ,, i .- j 1 ' ti L. 1 ..-~L 1 i I~r , _ t t ~ rl., :~~ ~ ~, _ ti~ 1 Ly . , ,~~ ,< . ~~-~= R5S ` R5S ~~ a~~r ~ \ ~~ -~ i ~ ,_ 1 ~ , ~ ~y ~ ~~,~ ~~~~ ~ ~ -_ " ""' ` ""'^ ' """` "'' "" """ CUP for Small Engine Repair Establishmer u ~~ ~~ ~ ~~; :~,,., CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: TAMI WALKER MOOK, Conditional Use Permit, small engine repair, 501 Virginia Beach Boulevard. BEACH DISTRICT. MEETING DATE: March 23, 2010 ^ Background: The applicant requests a Conditional Use Permit to allow small engine repair in conjunction with her existing motorcycle apparel business. The applicant has been in business selling motorcycle apparel since June 2006. The applicant began operation of the service department in December 2006 but was unaware of the requirement for a Conditional Use Permit for the repair business. This item was deferred by the City Council on February 23, 2010. ^ Considerations: The service department includes standard servicing and repair of motorcycles, as well as customizing. Painting and powder coating are not done on the premises; those are sub-contracted out and done in other locations. The businesses are located in an older retail strip that houses one additional business. There is sufficient parking for both businesses in front and along one side of the building. The retail portion is approximately 1,548 square feet. The service department is approximately 1,500 square feet. There is approximately 800 square feet of storage used for both businesses. There was opposition to the request. ^ Recommendations: The Planning Commission passed a motion by a recorded vote of 11-0, to recommend approval of this request to the City Council with the following conditions: The hours of operation for the retail and service department are Monday, Tuesday, Thursday and Friday from 10:00 a.m. until 6:00 p.m., and on Saturdays from 10:00 a.m. until 5:00 p.m. 2. There shall be no outside repair of engines and motorcycles on the site. Tami Walker Mook Page2of3 3. There shall be no outside storage of equipment, engines, tools, fuel, or nnotorcycles on the site. 4. Engine repair work is to be done with the doors and windows closed. 5. The applicant shall provide additional sound insulation along the walls and the ceiling of the area where the engines are in use to muffle the sounds of engine motors. 6. A, Certificate of Occupancy shall be obtained from the Building Official for tl~e appropriate use group. 7. This uses shall be administratively reviewed in one year to insure a~mpliance with these conditions. ^ Attachments: Staff Review and Disclosure Statements Minutes ~~f Planning Commission Hearing Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Department City ManagerC ~ ~ ,~ 0+~'L. 10 January 13, 2010 Public Hearing APPLICANT: TAMI WALKER MOOK PROPERTY OWNER: FRIENDS SCHOOL, INC. STAFF PLANNER: Karen Prochilo REQUEST: Conditional Use Permit (small engine repair establishment) ADDRESS 1 DESCRIPTION: 501 Virginia Beach Boulevard GPIN: ELECTION DISTRICT: SITE SIZE: AICUZ: 24270636540000 BEACH 27,714 square feet 65 dB DNL - 70 d6 DNL LEASE SPACE: Sub-Area 1 Retail: 1,548 SF Service: 1,514 SF Storage: 800 SF SUMMARY OF REQUEST The applicant requests a Conditional Use Permit to allow small engine repair in conjunction with her existing motorcycle apparel business. The applicant has been in business selling motorcycle apparel since June 2006. The applicant began operation of the service department in December 2006 but was unaware of the requirement for a Conditional Use Permit for the repair business. The service department includes standard servicing and repairs of motorcycles as well as customizing. Painting and powder coating are not done on the premises but are sub-contracted out. The hours of operation for the retail and service department are Monday, Tuesday, Thursday and Friday from 10:00 a.m. until 6:00 p.m., and on Saturdays from 10:00 a.m. until 5:00 p.m. Both the apparel and the repair businesses are closed on Wednesdays and Sundays. The businesses are located in an older retail strip that houses one additional business. There is sufficient parking for both businesses in front and along one side of the building. The retail portion is approximately 1,548 square feet. The service department is approximately 1,500 square feet. There is approximately 800 square feet of storage used for both businesses. TAMI WALKER MOOK Agenda Item 10 Page 1 LAND USE AND ZONING INFORMATION EXISTING LA~JD USE: Retail commercial and motorcycle repair and service SURROUNDINIG LANG North: Car wash / RT-3 Resort Tourist District USE AND ZONING: South: . Residential dwellings / A-12 Apartment District East: Across Baltic Avenue, a retail shop / RT-3 Resort Tourist District West: Car repair service / RT-3 Resort Tourist District NATURAL RE~50URCE AND The majority of the site is impervious as it is developed with a structure CULTURAL FE?ATURES: and parking lot. There are no known significant natural resources or cultural features associated with this site. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP1 /CAPITAL IMPROVEMENT PROGRAM (CIP): This site is located at the iintersection of Virginia Beach Boulevard and Baltic Avenue, with access on Virginia Beach Boulevard. Virginia Beach Boulevard is a four-lane minor urban arterial roadway with an 80-foot wide right-of- way. Baltic Avenue is a two-lane minor urban arterial with a 60-foot wide right-of-way. No CIP projects are currently programmed for either of these streets. TRAFFIC: Street Name Present Present Capacity Generated Traffic Volume Virginia Beach Blvd 11,900 ADT 14,800 ADT (Level of Existing Land Use - (2008) Service "C") 1,050 ADT 22,800 ADT' (Level of Proposed Land Use 3- Service "D") Capacity 80 ADT (9 Peak Hour) 27,400 ADT' (Level of Service "E" Baltic Avenue 2,700 ADT 7,300 ADT (Level of (2006) Service "C") 10,700 ADT' (Level of Service "D") Capacity 13,100 ADT' (Level of Service "E" Average Daily Trips ' 0.64 acres of RT-3 zoning 31,500 SF s ecial retail and 1,500 SF automobile care center WATER and SEWER: This site is connected to City water and City sanitary sewer. TAMI WALKER MOOK Agenda Item 10 Page 2 EVALUATION AND RECOMMENDATION Recommendation: Staff recommends approval of this request with the conditions below. Evaluation: Staff finds this request for small engine repair to be in conformance with the Comprehensive an providing all work is preformed within the repair facility; however, there is still some concern about the engine noise that may occur. The increased noise level may come from patrons leaving the shop who find it more convenient to turn on to the residential section of 16th Street or it may come from the repair facility itself if doors or windows are left open and insulation is not sufficient to muffle the sounds. Though the City cannot monitor each patron leaving the facility, the owners of the small engine repair should encourage their patrons to exit by way of Virginia Beach Blvd to avoid any conflict. The applicant should also insulate the area where the engines are tested to muffle any loud engine sounds. CONDITIONS 1. The hours of operation for the retail and service department are Monda;~ Tuesday Thursday and Friday from 1000 a m. until 6:00 .m. and on Saturdays from 10.00 a.m. until 5 00 p m 2. There shall be no outside repair of engines and motorcycles on the site. 3. There shall be no outside storage of equipment, engines, tools, fuel, or motorcycles on the site. 4. Engine repair work is to be done with the doors and windows closed. 5. The applicant shall provide additional sound insulation inside the area where the engines are in use to muffle the sounds of the 'revving' of engine motors. 6. A Certificate of Occupancy shall be obtained from the Building Official for the appropriate use group. 7. This use shall be administratively reviewed in one year to insure compliance with these conditions. NOTE: Further conditions maybe required during the administration of applicable City Ordinance's and Standards. Any site plan submitted with this application may require revision during detailed site plan review to meet all applicable City Codes and Standards. All applicable permits required by the City Code, including those administered by the Department of Planning /Development Services Center and Department of Planning /Permits and Inspections Division, and the issuance of a Certificate of Occupancy, are required before any uses allowed by this Use Permit are valid. The applicant is encouraged to contact and work with the Crime Prevention Office within the Police Department for crime prevention techniques and Crime Prevention Through Environmental Design (OPTED) concepts and strategies as they pertain to this site. TAMI WALKER MOOK Agenda Item 10 Page 3 AERIAL OF SITE LOCATION TAMI WALKER MfOK Agenda Item 1D Page 4 I', F l ~ ,• ~, i ."f' ~~ I tir ~~ z.. ,t F zi + ~ ~F'iK i rCf 5tb1.{ ..'J ~g i, < . , ~ ' :4 r.Y ~ a. -Gd-~i.?3~1 o~v p+13''` t -3~?f•, x,, ~ ~ . s.. ~3 t •::~ta A. a~3«. u"r _,aa.>i ~! t .. ~ ~ ~, 1 ~. e r ~~, . ~ ~ .. :. .._ 1 ,- .._ ,p .,. , -.- .. r T~ a .... <.{ ~ tM _, ., .. aa: ~ ~ ;,':u ~~i ~u,a:r f ._.. _ . I - -~-. - _ ~ , .~~~ r~ ~~ ~ ~~~ ~ xt _~ - L~G~T-a''-a^ ~~ ~ LC7T_-4 ~' ~~r. LOT-B LGiT°8 BLK -2l5 ~ ~ BLK.-2~ '"'~, ~~~ . I -K`~ ~ ~ . ~ ~ j L~catian of repait facility .~ 4 g y ~ _ rr~ ~ ~ f ANf 17; ~ ~ ~f.. Lk. E .i. _c ~~~ t 'ell ~~ ~, o, ~, r:v _j. ~'.., ' '. "~ I ~~ 1i ;t ~ . r ~ ea R;'F'k>' s :~,. ,. t ~~ ECEV.• ~.38~ ,r , E~. h ~rx ~a 1 ~r-._ _ ~„ .,~ ~L } ~ ~, _ - _ ~ ,A ~. ~. _ ~.: -..-..-r.-~. ..... _, .y ___,__ , .~ e ~ ~ ~ ,. t. - _, _ - a .., ~ w ,~, - - - .~~• ~ ~~ - _ __ __ ~ _3 ~ _ _ ~ .~. ~-- -~- ,~, _ .„,, _,,~ . -,,,, - _ ~/1F-T~1Nt.4 BEACH HDtlL~t/~RC1 _ ~ - - - ..~ - , > : ~ . reo• Rn~~ cw g ,. ~~. ski .,- r. ~ _ ___ __ ...... .._.__._ ~; , ~, SITE LOCATION TAMI WALKER MOOK Agenda Item 10 Page 5 EXTERIOR PHOTOGRAPHS TAMI WALKER MOOK Agenda Item 10 Page 6 INTERIOR PHOTOGRAPH TAMI WALKER MOOK Agenda Item 10 Page 7 1 0808/06 Non-conformin Granted 2 07.22/02 Conditional Rezonin A-12 to RT-3 Withdrawn before PC 3 03i 10/98 Street Closure Granted ZONING HISTORY TAMI WALKER MC?OK Agenda Item 10 Page 8 DISCLOSURE STATEMENT APPLICANT DISCLOSURE If the applicant is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the applicant name followed by the names of all officers, members, trustees. partners, etc. below: (Attach list if necessary) ~~~-UYlod~ ; ,~-ps 2. List all businesses that have aparent-subsidiary' or affiliated business entityz relationship with the applic'a^nt1(Attach list if necessary) Y ~'' ^ Check here if the applicant is NOT a corporation, partnership, firm, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Compiete this section only if property owner is different from applicant. If the property owner is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the property owner name followed by the names of all officers, members, trustees, partners, etc. /below: (Attach list if nec/e~ ssary) C~w~,/~ ~ I70~l1 ihr,e.r ~P~~ ~1" S ~.•a l _ ;~ s B ~ ~ rKs 2. List all businesses that ave aparent-subsidiary' or affiliated business entityZ relationship with the applicant: (Attach list if necessary) ~ ~/~ ^ Check here if the property owner is NOT a corporation, partnership, firm, business, or other unincorporated organization. 8 See next page for footnotes Does an official or employee of the City of Virginia Beach have an interest in the subject land? Yes No If yes, what is the name of the official or employee and the nature of their interest? Conditional Use Permit Application Page 9 of 10 Revised 7I3I2007 ~~ V r-a F"'~ ~--~ w ~r w ~-~ 0 ••-~ V TAMI WALKER MOOK Agenda Item 10 Page 9 1 ~• C- 1~~1 ~~ Qj ~_' ~~ ~I ~` ~1 ~~ I~~l ~I Fill WI ~I WI ~I ~' I ~l O) ~~~~ ~~ ~~~~ ~I ~I OI V~ DISCLOSURE STATEMENT ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will provide services with respect to the requested property use, including but not limited to the providers of architectural services, real estate services, financial services, accounting services, and legal services: (Attach list if neceAessary) 1` ' "Parent-subsidiary relationship" means "a relationship that a xists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation." See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. z "Affiliated business entity relationship" means "a relationship, other than parent- subsidiary relationship, that exists when (i) one business entity has a controlling ownership interest in the other business entity , (ii) a controlling owner in one entity is also a controlling owner in the other entity, or (iii) there is shared management or control between the business entities. Factors that should be considered in determining the existence of an affiliated business entity relationship include that the same person or substantially the same person own iar manage the two entities; there are common or commingled funds or assets; the business entities share the use of the same offices or employees or otherwise share activities, resources or personnel on a regular basis; or there is otherwise a close working relationship between the entities." See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and accurate. 1 understand that, upon receipt of notification (postcard) that the application has been scheduled for public hearing, I am responsible for obtaining and posting the required sign on the subject property at least 30 days prior to the scheduled public hearing according to the instructions in this package. The undersigned also consents to entry upon the subject property by employees of the Department of Planning to photograph and view the site for purposes of processing and evaluating this aoolication 4~l ~-i~-'~.. Print Name // L,~w~l,-.d .3 f/v~~-n~rY Print Name Conditional Use Permit Application Pafle 10 of 10 Revised 713/2007 TAMI WALKER MOOK Agenda Item 10 Page 10 Item # 10 Tami Walker Mook Conditional Use Permit 501 Virginia Beach Boulevard District 6 Beach January 13, 2010 REGULAR Al Henley: The next item to be heard is agenda item 10, Tami Walker Mook. An application of Tami Walker Mook for a Conditional Use Permit for a small engine repair on property located 501 Virginia Beach Boulevard. Tami Mook: Hi, my name is Tami Walker Mook. I am the owner of Diva Customs located at 501 Virginia Beach Boulevard. Even though Diva Customs has been an operating shop for 3'/Z years, as a retail and service department for motorcycles there has been a bit confusion on the service department end of it. Actually, believe it or not my accountant brought it to my attention that my business license did not have the term service on it. It was only retail. As I was here in this building getting some personal DMV work done, I decided to stop by the business office license just to make sure everything was cleared up, and they were pleased to put service department on my business license. That kind of opened up the door of how you've had a service department for 3'/2 years and we didn't know about it. So I actually, through all of this, did go back through some paperwork because when I applied for a business license I did mention that I was going to have a service department there. I'm not sure if you remember the building at 501 Virginia Beach Boulevard but it used to be Things Unlimited. It was a pretty rough building. It took a long time to kind of clean it up. It took two months just to get the front end of the place cleaned, and it took about six months to get the back opened up and running the service department. Being a woman, I have a whole new appreciation for men and their tools because I thought that my $5,000 limit on tools would actually fill a service department, and was greatly wrong. That barely pays for the box to hold them in. It took a while to actually afford to establish the service department. But I did go back. I originally got my business license for retail in March 2006, and 1 did go back in November 2006 to apply for the service department business license. I do have copies. I didn't know there were so many members so I didn't make a whole bunch of copies but I do have copies of the business license. I have copies of what my shop looks like. I'm often referred to as the Biker Boutique because it is a very, very pretty motorcycle shop. It is very misleading. People don't think that when they see the front of the shop that we actually work on motorcycles as it is a very pretty shop. I've brought some copies. And, I also know there have been a couple of complaints of noise and issues concerning my shop. I know that a neighbor has sent in a couple of emails. What I have done, and one of the things that was brought up to me that I rev up motorcycles up until midnight, and driving illegal motorcycles in front of their home. First, I want to address the issue about illegal motorcycles. My husband is a police officer and has been a police officer for 10 years. We would never risk his job or the shop trying to ride an illegal motorcycle. In fact you have to be pretty good and pretty sharp to even spot what is illegal on a motorcycle as it flies past your house, and the issue about retying motorcycles up until midnight. My hours are unti16:00 p.m. during the week and 5:00 p.m. on Item # 10 Tami Walker Mook Page 2 Saturdays. I do not have any employees there until midnight. And, I would love to know if somebody was a1: my shop retying up their motors. In my defense, I have brought copies of my security log, which shows and I've actually highlighted them in red that I do close at 5 or 6 o'clock every da;y. There is nobody there. If they had to come into my shop to work on a bike it would show up on the security documents. I'll pass this to you. And, also on my behalf is I am concerned that pE~ople might have an issue with the sound. I have been there for 3% years. I've have no one ever come into my shop. No one every send me an email. No one ever called me saying they were complaining about any noise. I have also included my own petition with surrounding businesses and residents. I have a couple of emails attached also. This one particular petition is very important. This is the group that is connected to our building. It is the Virginia Beach Recovery Center. They are there in the evenings when I'm not there. If I am bothering anybody up until midnight these are the people that would know about it, and they have signed on may behalf. I also have a letter that this is the woman who lives the closest to our building. You literally can reach your hand out and touch her apartment that she leases. This is a letter stating th~it she has lived there for 4 years and has had no complaints about the noise coming from the shop. That's it. Joseph Strange: Okay. Thank you. Does anyone have any questions? Okay, if you stand by we have one person in opposition. Al Henley: We h;~ve one speaker and it would be a Kevin Payne Kevin Pyne: Pyne. Al Henley: Pyne. Kevin Pyne: Goad afternoon. Ed Weeden: State: your name for the record please. Kevin Pyne: Yeah. Pardon me. Kevin Pyne, 503 16t" Street, directly behind Diva Customs or almost direct behind. I'm also speaking on behalf of at least 7 other families who live right around, within 300 feet, and that is notarized and sworn too. First of all just to comment on the midnight thing. 1`lobody around there ever mentioned midnight. Both Kurt and I, Kurt lives at 507 16t" Street, just two doors down. He and his wife mentioned, and as a matter of fact, this is how this started. Donald Horsley: Just pull it right off. The little black thing and point it over there. Kevin Pyne: Okay. Kurt is right there. The 4`" one in, and I'm the second one in. Susan is the first one in but an:y way. We did hear them carry on until 9:00 p.m. one time. But before I even get to that, when eve moved in 10 years, the neighborhood was pretty rough. It has improved significantly. As a. matter of fact, everybody that is on that list are all professionals, who are attorneys, nurses, teachers, CPAs, business owners, such as Kurt. You must have read his thing. He is a defense contractor, a Naval Commander, and so on, and so forth. We're all professional Item # 10 Tami Walker Mook Page 3 people. Our property values have tripled, land value, even my existing house. I got an increase. It appreciated rather than depreciated. Of course our taxes went up likewise but who cares. We realize our values have gone up. The houses that were put up next to me at 505 and 507, and I don't know if you want me to keep going back to there. Right there at 505 and 507 (pointing to PowerPoint). Those units sell for over $700,000. Kurt, in 507 bought the whole thing for a million, and as an investment property. Okay? The whole area was kind of noisy. We had a lot of noise and it wasn't just jets. We had noise from the car wash across the way here with the car stereos, and that would go on all night long. Even the school that who had outdoor HVAC unit was approved by the Council 10 years ago. That had problems in the school system. The engineers admitted it and have been working on it and so forth. But nonetheless, all of these things, the drunks, the drug users and there used to be people that used to fight in the street all night long, basketball games on the school, Cooke School, which is over here that went on all night long. All that sort of saying with the help of the city codes, and the laws, the neighbor had gradually improved. So, we have this pretty fairly nice neighborhood. People moving in who took care of their houses. I don't know if you can see them. Right there. Susan, she is a real estate agent. She wants a million and half. Her property is also on the historical register. The first house in Virginia Beach, and I'm right there. These, we hope to get at least $600,000. These are all well care for houses with nice gardens and things like that. We got a nice neighborhood. We got neighbors that talk to each other, and no one of us began all this. We thought we were up the creek when they moved in, Diva Customs. We thought it was going to be bad. It was zoned for light commercial, as I was told, which are stores and things like that. Okay. No big deal. We didn't know it was going to be motorcycle repair. And of course we didn't say anything again that motorcycle repair didn't start some months afterwards. Once it started, it was extremely loud. These things were big. We're you at the holiday parade at all? The motorcycles? Was anybody there? Janice Anderson: Too cold. Kevin Pyne: Okay. These are loud. The smallest one that I've ever seen there was probably around 650 to 700 something CCs. If you know anything about motorcycles or the big Harleys, the 1200, the 1300s and up, which rumble your house, bringing the increasing motorcycle traffic in general in the back area, nobody back there, going all the way back to 10th Street, which is way up there, there is only one person that lives there, and it somewhere around 12th or 13th that has a motorcycle. But we had a lot more motorcycle traffic back there, day and night. Test riding? Being tested, whether it was them during repair or people getting on their bikes, and ride down and ride back, so it was pretty sure it was test riding, and the noise? It started to get bad but then it got worse when they got this new machinery. A dynamiter, which they have to rev up the bike as loud as it will go, and then it winds down. Then it goes up again and then it goes down again. I heard one particular bike. It had to be the same because you tell by the sound of the engine, it took all afternoon. It kept going up and down, and they were working on my computer, and you could hear it in my house. Okay? Now granted noise you can hear jets in my house. Sure. Even the navy did something to improve that. Okay? I spoke to someone personally at the Pentagon to see that it got done. Like I said, we dealt with the all the noise issues in the neighborhood. When you can hear it in your house constantly, it gets a little after a while. It is not like that parade once in a while or the concert venue at the Beach once in a while Item #10 Tami Walker Mook Page 4 during the summer. It was like constant. It is every day. My wife was a corporate attorney who works out of the Home also. When she is not at home, she is at work at home. She is going nuts with what is goin;; on. I can't stand this. I can't stand this. She can't work, like wise with myself. But anyv~~ay, we were concerned primarily with our property values. I would not have bought had they been there. Not at all, and neither my wife or myself. I know Kurt wouldn't have, and he put trig money into that two unit condo there as an investment. Okay? There were people on the street that really didn't care. I talked to the girl. She talked to her right behind her the renter. She told me slie wanted to sign it but she says I really can't. I went over there. I like them. My four brothers are bikers. So, that was that. Iran into a couple of other people that didn't care either. Iran into one person who completed blew me off by saying you're probably one of those people who don't like jet noise. W hat are you going to do? So, that's not the case. This is cruel and unusual, and without some sort of, and the building is not designed for it. I seriously doubt it has OSHA or EPA approval but sound blocks for these things. It is not designed for it. These are not little engines. These are very loud engines. In my email, I said and my mechanic is right down the street at the gas station, the Exxon-Mobil there. Even over there it is not that loud. You know? Bikes are much louder than the cars. I've heard them on the freeways and whatever. Please take this into account. It is not just me. It is not just my wife. It is those people th~it have signed. I only went to 11 houses. That is hitting 80 percent. It is also and I pulled this off their website. Just to give you an idea of the size. These are good size bikes. Okay. These things are not quiet. It is not just repair. It is manufacturing. Joseph Strange: Gan you kind of wrap of things? Your time is up. Kevin Pyne: Okay. Thank. you. I think I've got everything. Joseph Strange: Alright. Are there any questions? Ronald Ripley: Oh by the: way, your house looks great. The houses that were built down the street, we looked pit them the other day. It is very impressed. Good example of what should occur throughout the neighborhood, quite frankly. Good job. My question is and you may have said it during your discussion there. Maybe you missed it. The service has been operating for a little bit of time naw, have you been over there to talk to them about say, what can we do to kind of mitigate this so you can live there and they can reside there, and maybe you guys can get along? Tell me about that. Kevin Pyne: I we~it over there twice. I don't know if anyone else went over there. I went twice and both times I was completely ignored. She just looked at me like, get out of here you know. didn't get a response. As far as the other people, I don't know if anybody went or not. Ronald Ripley: D~~ you see any medium ground though if there was something that could be worked out that you would be happy with? Kevin Pyne: Speal~:ing for myself, if they stay there, there has to be some sound proofing and speaking on behalf~of some of the people there, we don't want the bikes in the neighborhood. Okay? We don't vvant them to be test ridden. I would say most of the people agree with that. Item #10 Tami Walker Mook Page 5 As far as listening to it in my house, I don't want to hear it. Okay? And actually, my house is pretty soundly built too but I am pretty much right behind them. And, it is really awful. I have a nice garden in the back that I like to work in. I really can't. I mean, God, this is constant. You know, it's not like the lawnmower once in a while. Joseph Strange: We have another question for you. Jan? Janice Anderson: Yes Mr. Pyne. One of the conditions is they provide additional sound installation in that area to try and cut down on that, so that would be one of the requirements. The second thing is that the conditions didn't have any time limitation. She did mention what her hours were but we're going to add another condition that would limit the hours so you wouldn't have anything past like 6:00 p.m. where you would hear any kind of sound from there. Kevin Pyne: Right. But you also got Saturdays. Again, I'm not speaking for myself. I'm giving you everybody's concerns here. There are some adamantly against it because of property value issues. Okay? Kurt called. He is a little bit more passionate even. There are some people that are concerned about that so I can't say these conditions will meet our conditions. Some may meet my conditions and that is the sound proofing sort of situation, and riding the bikes on the back streets. I would be willing to give it a go if that was the case. Alright? Even though I still really don't care to see all the bikes around there, I'm afraid that someone is going to do like I would do and say I don't want to buy this place, not with that there. Alright? Not in this price range. We are looking for people that are going to buy our property are going to have to be like us, somebody like you, you, professional people. Right? Janice Anderson: Thank you very much. Kevin Pyne: Thank you. Joseph Strange: Are there any other questions? I have one question. Have you ever called the police or anybody and complained about the noise? Kevin Pyne: We talked. I'm on the Second Precinct CAC. We talked with Barbara Clark, Captain Zucaro. We discussed it but we figured from the time they moved in, there was nothing we could do about anything. The noise is not really a noise issue because they are bound by the other existing, and it wouldn't be considered unreasonable. Unless, I mean, there is an unreasonable noise section 8(6) or 8(2). I forget. Their definition before they can do something they have to have a solid definition. It just doesn't work that way. Joseph Strange: Alright. Thank you very much. Kevin Pyne: Okay. As far as those signatures, do you need that? I'm not sure I have a copy. Janice Anderson: Mr. Ripley, it might have ended up with him. Do you have the petition? Right there. Item # 10 Tami Walker Mook Page 6 Ronald Ripley: City attorney. Janice Anderson: Mr. Macali's got it. Bill Macali: The~;e we ne;ed. Kevin Pyne: But ~Ne have all the signatures. May I have a copy? Joseph Strange: PJe have one other speaker in support. Bill Macali: Take them over to Mr. White. Al Henley: We have another speaker in support Mr. Edward Hollinger. Edward Hollinger: Mr. Chairman and members of the Commission, good afternoon. My name is Edward Hollinger. I'm the Head of Friends School, Inc. We are the owner of this particular property. I reside at 505 Southside Road, here in Virginia Beach. The location of our office is at 1537 Laskin Road, here in Virginia Beach. I wish to speak in favor of granting the Conditional Use Permit for this operation. I'm here to testify too this afternoon that the applicant has been a responsible tenant: for the 3 %Z years she has occupied this building. I believe the operation is in keeping with the f;ssentia;l character along Virginia Beach Boulevard, and the use serves well the needs of this corrnmunity. The applicant in the years of occupying this building has done much to improve the building both to the interior and the exterior. I'm confident that the continued use of this operation at this site would not be detrimental to the character of the neighborhood. Further, I'm confident that: the applicant will be an excellent neighbor, an excellent tenant, and doing whatever is neces~~ary to maintain the integrity of the structure, and to address whatever noise issues that you would need necessary. And that would continue to the quality of the neighborhood. So, I urge your approval of the Conditional Use Permit in this case. Thank you for your time and the opportunity to speak to you this afternoon. Thank you. Tami Mook: Tarrii Walker Mook again. I would just like to address a couple of issues with the sound. First of al]I just to clarify anything, this is actually the first time that I even laid eyes on Mr. Pyne. He has never come into my shop and addressed me about the issues he's had. The piece of machinery that he is talking about is a dynamiter. We use it for diagnostics on motorcycles. I call it a treadmill basically for a motorcycle. We barely use it two or three times a week. We do not even use it every single day. It is an enclosed room surrounded with sound proof insulation inside. It has an air vent inside that when the dynamiter is running we turn them on to help with the exhaust fumes. Since I have taken over the building, the back believe it or not was in worse ;shape than the front. We actually installed insulation. We put new sheetrock up. We removed gill the windows and installed unbreakable glass and insulated windows so we have done very much to try insulate and take care of the sound. But, we are a very welcoming shop. We have pf;ople came in all the time. We would not be able to operate if we constantly have a motorcyclf; running in the back. It is absolutely untrue that for the 8 or 9 hours that we are there that we ~~re having motorcycles being revved up and run. First of all, we have a great exhaust system bit it is not that great. We could not just keep a motorcycle running for 8 hours, Item #10 Tami Walker Mook Page 7 plus the only thing that separates our service department from the front part of our shop are two glass plain doors, French doors, very beautiful doors. They are not going to protect the sound and keep the sound out from the back to the front. So, because of the front, we would not just be able to keep a motorcycle running in the back. I have absolutely no control over who rides motorcycles in the back of the shop. We have asked that people please leave out through the front and don't go to the back. There is a gentleman that owns a motorcycle. He owns the car dealership at Mediterranean and Virginia Beach Boulevard. He does have a motorcycle. We've asked him not to; please go the back route. Not down 16`h and to remain on Virginia Beach Boulevard. I've also contribute quite a bit to the community. We have been a part of Holiday at the Lights, the parade that he had brought up. We helped the beach events with an antique car and motorcycle show that they had at the boardwalk. The City came to me because they do not have the greatest turnout for the motorcycles the year before, and asked for my help. We were able to have 30 something bikes included on there. I, actually along with a few other members of my crew, I actually judged the show. Like I said, we have sponsored numerous motorcycle events, charities. We have given thousands and thousands of dollars and products to charities for the Virginia Beach area, and at most. We have been because of my husband being a police officer, we do a memorial ride for fallen officers, either begin or ended or had the entire memorial at Diva Customs. I will do the best that I can. I'm sorry if I've disturbed anybody. This is actually that I first that I've heard-truly of any complaints about sound, but I will go above and beyond to make sure that we try even harder to make sure we don't disturb anybody in the area. Joseph Strange: Are there any questions? Janice Anderson: The conditions require you to add additional insulation. Have you looked into that yet? Tami Mook: I can look and see what more we can do. I can show you right here. If we can go back to the aerial view of this I can show you. Okay. This is the building right here. The white part that I'm shaking on right here is actually the recovery center. I am next to them right here. actually have right there, I don't have the entire back part of the building. I have to about where the pointer is right now. We extended, I think about 16 feet back, which is storage. That is probably the only place that we have not included anymore extra insulation in because it is storage. We don't run any kind of motorcycles back there. But with this, I can show you that this is Mr. Pyne's house. It is not like we abut against him. We actually a nice little distance away from hm. But, I would try to at least take the extra room that we have taken over and see what we can do about adding some more insulation, and see if we can buffer it a little bit more. Janice Anderson: Could there be just another layer of insulation in your existing work? Tami Mook: Absolutely. We do have the sound proof panels against the wall but I don't think they are on the ceilings so we can provide them on the ceiling, and that would add a little bit more. Item # 10 Tami Walker Mook Page 8 Janice Anderson: Okay. What are you hours for engine repair? Are they less than the store is open because I`m just trying to see if we can limit them a little. Tami Mook: No. They are the same. We are open from 10:00 to 6:00, Monday, Tuesday, Thursday, and Fri~3ay. We are closed on Wednesdays and 10:00 to 5:00 on Saturdays. And we are closed on Suniiays. Janice Anderson: Okay. And that is when you work your workshop to within those hours. Tami Mook: Yes ma'am. Joseph Anderson: Are there any other questions? Do you have anything else new sir? Ed Weeden: Come back to the microphone. State your name for the record again. Kevin Pyne: Keviin Pyne, 503 16`h Street. Anyway, nobody said they were revved constantly all day long. In other words, they do take a break every few minutes. Joseph Strange: Thank yc-u. Kevin Pyne: Okay. But, they work with the garage door open. I don't know about the exhaust but they work with the garage door open. I've gone over there and seen it. Joseph Strange: We're going to address that. Kevin Pyne: Okay. And the noise, you can hear it down the street. Joseph Strange: V~e're gaing to address that. Kevin Pyne: Tharilc you. Joseph Strange: Thank yau. I'll open it up for discussion. Janice Anderson: ]['m very familiar with this location, and with Mr. Pyne's property. The neighborhood has increasf;d in values, and is being renovated. There are nice homes being constructed there or additions. The issue here, and we're going to see this more and more down at the Oceanfront, this neighborhood abuts right up to commercial property. There is commercial property on Virgir-ia Beach Boulevard. This is going to be commercial property whether it is Diva Customs or s~omethirig else. So, what I'm looking at is trying to buffer it as much as we can. There is going to be some noise there. It is near the Oceanfront. The Oceanfront itself during the summer is noisy. There is a school right next door to it. You've got school children playing outside on the field. They are loud too. Mr. Pyne, there is some noise that he hears from this facility, so I want to try to lessen that noise to him, and see if we can't do it in the conditions. This is a high noise zone noise too. We've got airplanes flying above so there is a lot going on. It is a great place to live. :[t is a great area, but I think both of these entities can live together Item #10 Tami Walker Mook Page 9 here, and I'm just trying hopefully we can find a resolution. The Diva Customs, they have done an amazing job to this property. I remember when it was the thrift store. I'm sure it took you more than two days or two weeks to clean that facility up. It is a very unique shop. It is very popular with the tourists. It is clean and very well taken. I knew there were some repairs back in there, and this is the first time that I've heard of any kind of complaint. So, far as the noise, there is going to have to be some additional. I would suggest that a requirement be there would be additional sound proofing on the roof and inside. Also, Mr. Pyne mentioned that some work has been done with the doors opened. It probably has and that is probably where he is hearing most of the noise. The conditions are they would have to closed. Everything would have to be inside. If it is done inside and you need a more extensive exhaust system then that is going to have to be a cost that you are going to have to bare. It is a nice neighborhood. They don't need to listen to an open door because that noise will carry. Also, I would like the condition, like I mentioned earlier during the informal to limit it to those working hours, so someone can't work on a bike late at night or after 6:00. The other thing, as so far as Mr. Pyne mentioned motorcycles going up and down his street. I don't know what we can do about that. There are several motorcycle owners in my neighborhood, you definitely heare when they leave the house. But unfortunately the owner of the shop has asked them to take Virginia Beach Boulevard out and not 16`h Street, so I don't they there is any kind of condition I could help Mr. Pyne with that. But, I would be willing to approve the application with the owner knowing how concern the neighbors are, and how it important it is, and with those extra conditions. David Redmond: I mean, a motorcycle properly licensed is a legal vehicle on the street. It is not like we can make them go away. I was just going to suggest and I read it in the write-up too. You mentioned it yourself that you encourage your patrons to head out by Virginia Beach Boulevard. In situations like this where people kind of bump up against one another, sometimes that is as much as you can do. I don't know a thing about sound insulation or sound attenuation, so I'm not going to pretend that I do or where it might go or the rest of it. But I do think to the extent to which you can press upon your patrons, please go that way. It makes a different. Really press upon it. Stick a sign behind the counter or whatever when they get rung up in their repairs. That will, to some extent, that human beings can control, hopefully mitigate some of the conflicts. I think it is a wonderful, thriving, viable business. I hate to try and hem a wonderful thriving, viable businesses and I commend you for that. I just urge you to do your utmost to ask your patrons that if you like it here, and you like my repair work, head that way please because that does make a big difference. Thank you. With that said, I understand the noise everybody, and in'the modern world it is very difficult to get away from it. The gentleman who spoke and opposed it, I can certainly feel for him to extent to which you can work with the sound. Again, I don't know anything about how you limit sound within a building like that. It is my hope that you will do your best there too. Nobody would like that. Joseph Strange: Are there any other comments? I would just like to say that this is a viable business but they didn't have a license to do service there. Therefore, the community does need some type of protection. It doesn't make any difference whether they are $600,000 homes or $200,000 homes. They are still people living there, and they need a certain amount of protection. I can support this application with the additional insulation not only in the walls but in the Item # 10 Tami Walker Mo~~k Page 10 ceiling, and do everything we possibly can with the doors shut, and if anyone wants to make a motion to that effi~ct, I'll be happy to support it. Janice Anderson: Chairman, I make a motion to approve with the modified condition requiring additional insulation. It is already required that all work be done inside with the doors closed, the windows closE;d, and the limitation of any work being done on the motorcycles to the store hours as listed. Joseph Strange: eve have a motion made by Jan Anderson with the modifications. Do I have a second? We have a second by Kathy Katsias. A~i'E 11 NAY 0 ABS 0 ANDERSON A~'E BERNAS AY'E FELTON AY'E HENLEY AYE HORSLEY AYE KATSIAS AYE LIVAS AYE REDMOND AYE RIPLEY AY E RUSSO AYE STRANGE AYE ABSENT 0 Ed Weeden: By a vote of 11-0, the Board has approved the application of Tami Walker Mook with the modified conditions as stated. ~~ To: The Virginia Beach Planning Commissioners and Council Members: We, the undersigned residents and home owners of 16th Street and Baltic Avenue do hereby protest the granting of any conditional use permit or variance to Diva Customs located at SOlA 17th Street for the purpose of small engine repair (motorcycles). Diva Customs generates very loud noise from their repairing motorcycles at their location and by test driving them on our streets. We aze located nearest Diva Customs and no further than six houses away. Homeowners: Signature Printed Name Address Date - -~~ ., ~~ .~~ NE ~~ os ~~r T C~ IS Zy lSgL !'~ C ,4,.,~ . ~~. ~ /L ~ ~s- C~ /r-- ,/ %G/ inr la- ~07'"l~ /~ ~ 1~~i7 ~~j r~ ` C c~~~~ ~f ~/ ~ 6~ ~ ~-- ,~-~- 0 9 h"n L-es;~yv~k.~ ~-Iq (~o`~^ ~ i/I2~io _~ -- ~'I~ 1 ~-%G~s ~ !~~zlr~ ~, : ~,,~,~r.~o,~7t~{Lf' S~ Printed Name Address Date O~ ~,~ I~.n J., I~iP Ylnr~ ~,c~P S ~S I (~ ~~C, ~~ ~ ~~.ti~--Y~ ~ ~ ~~ ~~~~ a [~I~-~ GENERAL AFFIDAVIT Commonwealth of Virginia City of Virginia Beach I, the undersigned affiant, KEVIN D. PYNE, of Virginia Beach, Virginia, hereby swear and testify that I personally collected each and every signature on the attached Petition pertaining to "Diva Customs", 501-A 17th Street, Virginia Beach, Virginia 23451, and further state that each and every person who signed said Petition is personally known to me to be z~ neighbor either owning, or renting residential property within 300 feet of "Diva Customs," a motorcycle shop. Dated: _~,%Z - ZSZ~~Z Affi :Kevin D. Pyne I, Dale V. Berning, Esquire, the undersigned Notary Public in and for the City and State aforesaid, hereby certify that Kevin D. Pyne, whose name is signed to the foregoing General Affidavit, personally appeared before me and signed and acknowledged the same before me this 12~' day of January, 2010. ```{~\\\\{ I I I 1111 l/////,,' . 8ER ., [Notary`,~~~.~oNwE,;~k/,ti~~%,, 24~' ~ = NOTARY PUBLIC NK COMM. E~RES 0?/28/2013 ~'•, My com"~i3isy~c~q~myp1 ~:\~~.~`~ ~Ia~ L-1-~ P1 R~0 AG1 AG1 r e ~~~ ~ ~. r ' y`. ~ ( ,3 f~ `~ i1V IlCI l I<dltl~~i ~' 11 j I f I 1'Ui !'~ ~'1 AG2 o J~` AG2 ' .~~ ~~;~` .. -AG1 _ e~ ~ ~, ~ ~.. i AG2 ~~ X } ~.:, i ~.~ ~% ~. ~ .., AG1 / ~~' ...) b~ N f~~ ~! ii ` II ~ (i ~~ CUP far Ftrewaod Preparation Facifi~ ..~, ~~~u ~yy~ Sao f,g~ . ~~- •~~'~ ~~ CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: ROBERT RAMSAY, Conditional Use Permit, firewood preparation facility, 3025 New Bridge Road. PRINCESS ANNE DISTRICT. MEETING DATE: March 23, 2010 ^ Background: The applicant requests a Conditional Use Permit to allow firewood preparation and storage to occur on this agriculturally zoned site. The applicant lives on the site with his family and owns a tree service business. The logs for the firewood preparation facility are brought in from the applicant's tree service jobs. The applicant has no permanent employees and uses temporary day labor on an as- needed basis. ^ Considerations: The existing one-story home sits over one hundred feet from New Bridge Road. The asphalt drive leads past the home to the detached garage and wood privacy fence. Behind the privacy fence is the work area for the firewood preparation and the equipment is stored. The actual operation of splitting the logs occurs behind a detached garage in a designated work area towards the rear of the site. This work area is accessed via the existing residential drive and is partially surrounded by a six feet high wood stockade fence on two sides. The other two sides of the work area are treed. The location criteria provided in Section 233.2 of the City of Virginia Beach Zoning Ordinance notes that firewood preparation facilities should be located only where the traffic, noise, and other effects of the operation will not adversely affect nearby residents. Staff does have concerns that the operation of a chain saw and log splitter cannot be done in harmony with the residential dwellings in close proximity to the property, particularly the dwelling located immediately to the south. The adjacent property owner sent a letter indicating the applicant's proposal would be acceptable if certain conditions were attached to the use permit. Those conditions are included with staffs recommendation. At the November 2009 Planning Commission, the application was requested for deferral so the applicant could continue the cleanup process. Since then, the applicant has made a significant improvement in the overall appearance of the site despite the wet Robert Ramsay Page 2 of 2 conditions that have made the remaining clean-up difficult. The applicant will be completing the clean-up process once the ground dries sufficiently to maneuver vehicles around this area. There w,~s no apposition to the request. ^ Recomnnendations: The Planning Commission passed a motion by a recorded vote of 10-0, to recommend denial of this request to the City Council. ^ Attachmients: Staff Review and Disclosure Statements Minutes of Planning Commission Hearing Location IVlap Recommended .Action: Staff recommends approval. Planning Commission recommends denial. Submitting Dep~artment/Agency: Planning Department City Managers ~-~ ~ "CJ ""r'~-" Robert Ramsa ' ,Uap A~a'o Scale P1 R30 AG1 /, I --- --- ~ i G~ « AGZ I / -~ I - i `` rr -~ AG1 c ~ AG2~` ``~` _ _` ~~_ AG1`~ O _^._._./ AG2 ~. ~, ,~~ / ~ 1 ~- "- CUP for Firewood Preparaflon Facurty REQUEST: Conditional Use Permit for Firewood Preparation Facility ADDRESS /DESCRIPTION: 3025 New Bridge Road GPIN: ELECTION DISTRICT: 241383286100000 PRINCESS ANNE 7 February 10, 2010 Public Hearing APPLICANT: ROBERT RAMSAY PROPERTY OWNER: ANNIE RAMSAY - BISHOP STAFF PLANNER: Karen Prochilo SITE SIZE: AICUZ: 66181.56 square feet Less than 65 d6 DNL / 1.5 acres APPLICATION HISTORY: The applicant requested deferral prior to being heard at the September 9, 2009 Planning Commission in order to get a letter of support from the adjacent property owner. A letter from the adjacent property owner was received with a request for revisions to the conditions of the September staff report. These revisions have been incorporated into the current conditions. At the November 2009 Planning Commission, the application was requested for deferral so the applicant could continue the cleanup process. SUMMARY OF REQUEST The applicant requests a Conditional Use Permit to allow firewood preparation and storage to occur on this agriculturally zoned site. The applicant lives on the site with his family and owns a tree service business. The logs for the firewood preparation facility are brought in from the applicant's tree service jobs. The applicant has no permanent employees and uses temporary day labor on an as-needed basis. The actual operation of splitting the logs occurs behind a detached garage in a designated work area towards the rear of the site. This work area is accessed via the existing residential drive and is partially surrounded by a six feet high wood stockade fence on two sides. The other two sides of the work area are treed. ROBERT RAMSAY /ANNIE RAMSAY-BISHOP Agenda Item 7 Page 1 The existing one story home sits over one hundred feet from New Bridge Road. The asphalt drive leads past the home: to the detached garage and wood privacy fence. Behind the privacy fence is the work area for the firewood preparation and the equipment is stored. LAND USE AND ZONING INFORMATION EXISTING LAND USE: Single-family dwelling SURROUNDIIVG LAND North: Cultivated farm land / AG-2 Agricultural District USE AND ZONING: South: . Rural residential and cultivated farm land / AG-2 Agricultural District East: • Across New Bridge Road, Rural residential and cultivated field in ARP / AG-2 Agricultural District West: Agricultural land / AG-1 and AG-2 Agricultural Districts NATURAL RESOURCE AND The site is within the Southern Watershed Management Area. The rear CULTURAL FEATURES: of the site is wooded. There does not appear to be any significant cultural features on the site. The parcel across New Bridge Road is within the Agricultural Reserve Program (ARP). IMPACT ON CITY SERVICES MASTER TR~-NSPORTATION PLAN (MTP) /CAPITAL IMPROVEMENT PROGRAM (CIPI: New Bridge Road in the vicinity of this application is a rural two-lane highway. There is currently no roadway CIP projects scheduled for this portion of New Bridge Road. The Master Transportation Plan does not show future plans for New Bridge Road. TRAFFIC: Street Name Present Volume Present Capacity Generated Traffic New Bridge Road 2,200 ADT 8,700 ADT (Level of Existing Land Use - (2008) Service "C") 25 ADT 11,200 ADT' Capacity Proposed Land Use - (Level of Service "D") The scale of the operation is such that any additional enerated traffic is minimal Average Daily Trips : as defined b 1.5 acre AG-2 sin le-famil dwellin WATER 8 SENUER: City water and sewer are not available to this site. FIRE: Outside storage of combustible materials shall not be located within 10 feet of a property line or other building on site;. Additionally, storage in the open shall not exceed 20 feet in height. ROBERT RAMSAY /ANNIE RAMSAY-BISHOP Agenda Item 7 Page 2 HEALTH DEPT: The residence is served by an on-site sewage disposal system and a private well. The department recommends that the existing septic tank system (including the drainfield) and water supply be protected from any part of the proposed firewood operation. EVALUATION AND RECOMMENDATION Recommendation: Staff recommends approval of this request for a firewood preparation facility with the following conditions. Evaluation: When the proposal was initially discussed with the applicant's representative, staff was told that the adjacent neighbor located immediately to the south was in support of this request and a letter would be provided indicating their support. A letter had not been received at the time of the September Planning Commission Hearing. A letter has now been received by the adjacent property owner with the request for revisions to the conditions of the September staff report. These revisions have been incorporated into the proposed conditions provided below. The location criteria provided in Section 233.2 of the City of Virginia Beach Zoning Ordinance notes that firewood preparation facilities should be located only where the traffic, noise, and other effects of the operation will not adversely affect nearby residents. Staff does have concerns that the operation of a chain saw and log splitter cannot be done in harmony with the residential dwellings in close proximity to the property, particularly the dwelling located immediately to the south. Staff recently visited the site and noticed a significant improvement in the overall appearance of the site despite the wet conditions that have made the remaining clean-up difficult. The applicant will be completing the clean-up process once the ground dries sufficiently to maneuver vehicles around this area. Based on the September 20, 2009 letter, recent conversation with the adjacent property owner concerning the firewood preparation operation and noise associated with preparing the firewood, as well as Staffs recent site visit, approval of this application with the following conditions is recommended. CONDITIONS 1. The firewood preparation facility shall be conducted within the fenced interior of the property behind the house and garage. 2. Retail sales of firewood, mulch, and farm products are prohibited. 3. Fire Department access shall be provided at all times to any structure located on the property. The on- site road surface shall be maintained and shall be capable of supporting a 75,000 pound load. 4. Hours of operation will be Monday through Saturday from 8:00 a.m. until 7:00 p.m. only. 5. All junk, debris, parts, old tires, other discarded items, inoperable vehicles, boats, and equipment not ROBERT RAMSAY /ANNIE RAMSAY-BISHOP Agenda Item 7 Page 3 associated with the firewood preparation facility shall be removed from the site. 6. All tree service equipment and vehicles except for the two used by the resident of the property shall be removed from the site. 7. The Zoning Administrator shall annually evaluate whether the conditions have been adhered to. If the evalu~3tion reveals that the conditions are being met, the use permit shall be renewed for an additional year, ~~rith an annual evaluation thereafter. If the evaluation reveals that the conditions are not being met, tihe Zoning Administrator shall refer the use permit to the City Council for revocation. NOTE: Further conditions maybe required during the administration of applicable City Ordinances and Standards. Any site plan submitted with this application may require revision during detailed site plan review to meet all applicable City Codes and Standards. All applicable permits required by the City Code, including those administered by the Department of Planning /Development Services Center and Department crf Planning /Permits and Inspections Division, and the issuance of a Certificate of Occupancy, ~~re required before any uses allowed by this Use Permit are valid. ROBERT RAMSAY /ANNIE RAMSAY-BISHOP Agenda Item 7 Page 4 F}JP/ N --~.~. w.~w_ R ~. ...~..,r._.~_~,. ,~,-= • r, ~, . ~~ ,~ s~ .. ;~~ _ aJ ~ :.. ~~ ~~ r ~` -~~ ~` AERIAL OF SITE LOCATION ROBERT RAMSAY /ANNIE RAMSAY-BISHOP Agenda Item 7 Page 5 .,,~ ~ ~~~~ •« ~~% 8~ s a~ ~~ ~~ ~ /, ~/ ~ ,,tip l ~~~ ~$ ~ ~~ !' ~~80 ~I ~q I}~ ~~ . Location of firewood ~ ~~ ~ `' ~ ~ ~ ~ ~ ~ ~ ~ preparation facility ~ ~~, ..--- ~ ~~ ~. ~ I a'~' y ~~ / ~ '~ ~ ~/~~ ~, ~ ' t ~~~~ , ~~ ~`"~~a ~+ ~~~ ~'$~ a .../ . `~ ~tl ~ ~$ ~ e ~ H r~ 'L $~g+~ ti ~ "~ ~~ y y ~ BII~Z1~`¢~ ~ ~ j Y: 1~dP ~~~ f ~ a s SITE PLAN' ROBERT RAMSAY /ANNIE RAMSAY-BISHOP Agenda Item 7 Page 6 ROBERT RAMSAY /ANNIE RAMSAY-BISHOP Agenda Item 7 Page 7 EXISTING SITE PHOTOGRAPHS SITE PHOTOGRAPHS ROBERT RAMSAY /ANNIE RAMSAY-BISHOP Agenda Item 7 Page 8 Photo taken 07/13/2009 Photo taken 01/25/2010 SITE PHOTOGRAPHS.....:..... ROBERT RAMSAY /ANNIE RAMSAY-BISHOP Agenda Item 7 Page 9 Photo taken 07/13/2009 Photo taken 01/25/2010 Mnn 1 Jd r~ r r~ Not to Scole p 1ls~tcto Scale ~~-HG ~ tR-30} 2] Pp-H N tP-1}[2] nuv~ri Hums At:-1 A~-2 °°' AG-2 •: ~ 0 ~ AG-~ AR ~ ARP ARP AR AG-1 RFARPARFA AR ~ R ARF ARP ARF A PAR ARP ARP ARPARPA PAR ARP ARP ARP ARP RP ARP PARP ARP ARP ARP ARP RP AR ARP ARF RP ARP ARP ARP ARP ARP ARP P ARP ARP ARPARPA ~A ~~ ARP ARP A ARP ARP A A ARP AR ~s RP ARP AR ARP A A ms ARP ARF ARP RP ARP A ARP ARP A P PARP~A~P PARP PARP ARP ARP AG-~ ~~~ ~ RP ARP ARP ARP ARP ARP A PARP ARP CUP fnr Frrewnnd Pren_ Facility ~- Submitted 08!08/07 Conditional Rezonin from AG-1 /AG-2 to R-20 On Hold ZONING HISTORY ROBERT RAMSAY /ANNIE RAMSAY-BISHOP Agenda Item 7 Page 10 DISCLOSURE STATEMENT APPLICANT DISCLOSURE If the applicant is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the applicant name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) Robert Ramsay 2. List all businesses that have aparent-subsidiary' or affiliated business entityz relationship with the applicant (Attach fist if necessary) ® Check here if the applicant is NOT a corporation, partnership, firm, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only if property owner is different from applicant. If the property owner is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the property owner name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) Annie Ramsay-Bishop 2. List all businesses that have aparent-subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) ® Check here if the property owner is NOT a corporation. partnership, firm, business, or other unincorporated organization. 8~ See next page for footnotes Does an official or employee of the Cjty of Virginia Beach have an interest in the subject land? Yes No If yes, what is the name of the official or employee and the nature of their interest? Conditional Use Permit Applicatwn Pape 9 of 10 Revised 7/312007 Z ---~ ~--~ a w w z 0 A O V ROBERT RAMSAY /ANNIE RAMSAY-BISHOP Agenda Item 7 Page 11 ~--~ F"'~ --~-~ W W O F--+ .--. A O V DISCLOSURE STATEMENT ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will provide services with respect to the requested property use, including but not limited to the providers of architectural services, real estate services, financial services, accounting services, and legal services: (Attach list if necessary) ' "Parent-subsidiary relationship" means "a relationship that a xists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation." See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. z "Affiliated business entity relationship' means "a relationship, other than parent- subsidiary relationship, that exists when (i) one business entity has a controlling ownership interest in the other business entity , (ii) a controlling owner in one entity is also a controlling owner in the other entity, or (iii) there is shared management or control between the business entities. Factors that should be considered in determining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entities; there are common or commingled funds or assets; the business entities share the use of the same offices or employees or otherwise share activities, resources or personnel on a regular basis: or there is otherwise a close working relationship between the entities." See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and accurate. I understand that, upon receipt of notification (postcard) that the application has been scheduled for public hearing, I am responsible for obtaining and posting the required sign on the subject property at least 30 days prior to the scheduled public hearing according to the instructions in this package. The undersigned also consents to entry upon the subject property by employees of the Department of Planning to photograph and view the site for purposes of processing and evaluating this application. !'r~" JJi 7 (;~ /I~Bc~~zT~,vr~~~7 App~carit's ignatur~ Print Name '' l1 ~j Property Owner's Signature (if differcrnt than applicalit) Print Name Conditional Use Permit Application Pape 10 of 10 Revised 7/3/2007 ROBERT RAMSAY /ANNIE RAMSAY-BISHOP Agenda Item 7 Page 12 Item #7 Robert Ramsay Conditional Use Permit 3025 New Bridge Road District 7 Princess Anne February 10, 2010 REGULAR Al Henley: The next item is item 7. An application of Robert Ramsay for a Conditional Use Permit for a firewood preparation facility on property located at 3025 New Bridge Road, District 7, Princess Anne. It has seven conditions. There are no speakers. Joseph Strange: There are no speakers. There is no representative. Karen Prochilo: I don't see the applicant here. Joseph Strange: Okay. We'll just open it up for discussion. Al Henley: I guess I will start it off. As stated in the informal session, any time we look at an application for a wood cutting or processing situation, there is always associated with that a lot of noise, and not to mention on top of that an awful lot of debris that is result of the processing of wood, chain saws, and I don't know what the decibel noise level on that but it is quite disturbing if you're anywhere close to that. I think if the applicant was at a different location set farther from the roadway, on the public highway that you would not visibly see this. If it was secluded with a group of trees I think it would put a whole new light on the application. But, I won't dwell on it any further. But I can't support this application. Thank you very much. Joseph Strange: Is there any other discussion? Donald Horsley: Mr. Chairman, I will echo Mr. Henley's sentiments. He is a close neighbor. He is well aware of this situation. You know there have been a lot of unsightly things that have been cleaned up partially. I know it has been hard to do much cleaning up this winter that way it has been and all. But, a lot of times when you clean up a site like this to get an approval, and then year's end, it will be back like it was. I think that is kind of the reputation that has been established on this site. So, I would echo Mr. Henley's sentiments on that. Joseph Strange: Is there any other discussion? Do I have a motion? Al Henley: I would like to make a motion to disapprove the application. David Redmond: Second. Joseph Strange: We have a second by Dave Redmond. We're ready for a vote. Item #7 Robert Ramsay Page 2 AYE 10 ANDERSON BERNAS AYE FELTON AYE HENLEY AYE HORSLEY AYE KATSIAS AYE LIVAS AYE REDMOND AYE RIPLEY AYE RUSSO AYE STRANGE AYE NAY 0 ABS 0 ABSENT 1 ABSENT Ed Weeden: By a vote of 10-0, the Board has denied the application of Robert Ramsey. t ~~~~~ Karen Prochilo From: Karen Prochilo Sent: Friday, January 29, 2010 7:58 AM fo: 'Sharon Newton Subject: RE: Robert Ramsay Conditional Use Permit Sharon - I received your email and appreciate you taking the time to reply back after speaking wit your tenant. As we discussed yesterday, the conditions will have the time limit from 8:00 a.m. until 7:00 p.m. as well as an annual review period. Sincerely Karen Prochilo Virginia Beach Department of Planning Municipal Center - Bldg 2 voice 757.385.4298 fax 757.385.5667 kprochil(~vbaov.cam -----Original Message----- From: Sharon Newton [mailto:snewton9@cox.net] Sent: Thursday, January 28, 2010 8:40 PM To: Karen Prochilo Subject: RE: Robert Ramsay Conditional Use Permit Karen, I was able to talk to my tenants this evening. They said that so far they have no complaints with the noise next door. As I stated earlier when talking to you today I am pleased with the progress that I have seen so far. I believe that if all conditions are met that you say will be listed on his case that I will be ok with the operation of his business. Thank you for giving me the opportunity to comment on this use permit again. Please let me know if there will be any changes in what we discussed today. Thank you, Sharon N. Newton --Original Message----- From: Karen Prochilo [mailto:KProchil@vbgov.com] Sent: Monday, September 21, 2009 8:04 AM To: Sharon N. Newton Subject: RE: Robert Ramsay Conditional Use Permit Ms. Newton - Your email with the attached letter was received. Thank you. Karen Prochilo Virginia Beach Department of Planning Municipal Center - Bldg 2 voice 757-385-4298 fax 757-385-5667 kprochil(lvb~ov.com ~ -----Original Message----- From: Sharon N. Newton [mailto:snewton9@cox.net] Sent: Sunday, September 20, 2009 8:53 PM 1 To: Karen Prochilo Subject: Robert Ramsay Conditional Use Permit Karen please let me Ilcnow you received this a-mail. Please see my attached letter. Thank you for all your help. Sharon N. Newton F 2 -74- Item V-K.9.c. PLANNING ITEM # 59650 Upon motion by Vice Mayor Jones, seconded by Councilman Wood, City Council DEFERRED INDEFINITELY.• City Zoning Ordinance (CZO): AMEND §! 11 and ADD §217 re requirements jor monrtntent and electronic display signs Voting: 10-0 (By Consent) Council Members Voting Aye: Gleinn 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., Jofu~r E. Uhrin, Rosemary Wilson and James L. Wood Council Member.~~ Voting Nay: None Council Members Absent: None c_~._..,..... n ~n~n u ~' ~ `".« ~,. ~ ~ ~ ` ~~ CITY OF VIRGINIA BEACH AGENDA .ITEM J ITEM: An Ordinance to Amend Section 111 and Add New Section 217 to the City Zoning Ordinance, Defining Monument Signs and Electronic Display Signs and Establishing Requirements for Such Signs MEETING DATE: March 23, 2010 ^ Background: This item was deferred by the City Council on February 9 to provide a subcommittee of the City Council time to meet and review the proposed ordinance in light of various issues expressed by City Council members during the Informal Council Session on February 9. The City of Virginia Beach currently has no regulations specific to signs that utilize these technologies. The Zoning Ordinance is silent on the use of electronic display elements as part of a sign. As a result, electronic display elements, as part of a sign or as an entire sign face, have made a steady advance across the city when new signs have been installed. As noted above, with the increased sophistication of digital sign technology, the slowly decreasing costs, and the plethora of advertising alternatives electronic display signs offer, such signs are becoming, if not are, the standard for signage. The ordinance will not be voted on at the March 23 meeting, but will be the subject of a public hearing on that date. The City Council is scheduled to vote on the ordinance at the special meeting to be held on March 30. ^ Considerations: The attached comparison table summarizes the two most recent alternative ordinances developed by the City Council subcommittee. The following provides the chronology of the development of the amendments: • August 25, 2009 -City Council refers ordinance to the Planning Commission • September to November 2009 -Planning Commission holds public workshops and meetings • January 13, 2010 -Planning Commission recommends more restrictive "Alternate Ordinance" to City Council • February 9, 2010 -City Council defers ordinance for briefing • February 16, 2010 -City Council briefing; subcommittee formed City of Virginia IBeach -• Electronic Display Signs Amendment Page2of2 • F=ebruary 19, 2010 -First subcommittee meeting • February 26, 2010 -Second subcommittee meeting • ~Aarch 9, 2010 -Briefing to City Council on City Council subcommittee version. There i;~ opposition. ^ Recomimendations: There i~; no recommendation at this time, as the City Council will be holding a public hearing ~to receive comment on the amendments. The City Council is scheduled to vote on the ordinance at the special meeting to be held on March 30. After receiving public comment, a deferral to March 30 is recommended since the amendment was legally advertised for action at the March 23 meeting. ^ Attachnnents: Compari:~on Table `City Council Subcommittee' Ordinances Minutes ~~f Planning Commission Hearing Recommended Action: Deferral to the March 30 special meeting Submitting Dep~artment/Agency: Planning Department City Managers Y„~s 6L ~ ~2. 1 AN ORDINANCE TO AMEND SECTION 111 AND ADD 2 NEW SECTION 217 TO THE CITY ZONING ORDINANCE, 3 DEFINING MONUMENT SIGNS AND ELECTRONIC 4 DISPLAY SIGNS AND ESTABLISHING REQUIREMENTS 5 FOR SUCH SIGNS 6 7 Section Amended: City Zoning Ordinance Section 111 8 g Section Added: City Zoning Ordinance Sections 217 10 WHEREAS, signs that are capable of changing messages by electronic means 11 (electronic display signs) are desigi ebriohteraandnmorev isbletfrotm g~eate~tdistances 12 other passers-by and are genera y g 13 than ordinary signs; and 14 15 WHEREAS, while such signs are capable of providing a greater amount o 16 information than ordinary signs by virtue of their visibility and changeability, and 17 therefore serve a valuable purpose to consumers and other persons desiring to have 18 such information and to the own ct motorusts andnto adversely affect the appearance 19 unregulated, to unreasonably distra 20 of the City; and 21 22 WHEREAS, the City Council deems traffic safety and community appearance, 23 including the economic benefits accruing to the City as a result of its attractiveness to 24 visitors and businesses, to be important governmental interests deserving of protection; 25 and 26 27 WHEREAS, the City Council finds that the regulation of electronic display signs 28 provided by this Ordinance will substantially protect and advance the interests in traffic 29 safety and community appearance of the City, its residents and its businesses by 30 limiting the number, size, height, location, brightness, frequency of message changes 31 and other characteristics of such signs; and 32 33 WHEREAS, it is not the purpose of the City Council in adopting this Ordinance 34 to regulate the content of the messages displayed on such signs in a manner 35 inconsistent with the protections afforded by the Constitutions of the United States and 36 Commonwealth of Virginia, but rather to do so in a manner in which the regulations set 37 forth herein (1) are content-neutral; (2) are narrowly tailored to serve the aforesaid 38 governmental interests and (3) allow ample alternative means of communication; 39 40 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY 41 OF VIRGINIA BEACH, VIRGINIA: 42 43 That Section 111 of the City Zoning Ordinance is hereby amended and 44 reordained, and a new Section 217, pertaining to electronic display signs, is hereby 45 added, to read a:~ follows: 46 47 Sec. 111. Definiitions. 48 For the purpose of this ordinance, words used in the present tense shall include 49 the future; words used in the singular number include the plural and the plural the 50 singular; the usE; of any gender shall be applicable to all genders; the word "shall" is 51 mandatory; the word '''may" is permissive; the word "land" includes only the area 52 described as being above mean sea level; and the word "person" includes an individual, 53 a partnership, association, or corporation. 54 55 In addition, the following terms shall be defined as herein indicated: 56 .••• 57 Sign, electronic display Asian containing light emitting diodes (LEDs), fiber 58 optics, light bulks lasma dis la screens or other illumination devices or a series of 59 vertical or horizontal slats or cylinders that are capable of being rotated at intervals, that 60 are used to ch~inae the messages intensity of light or colors displayed by such si n. 61 The term shall not include signs on which lights or other illumination devices display 62 only the temperature or time of day in alternating cycles of not less than five (5) seconds 63 or only motor vehicle fuel prices displayed continuously. 64 65 Sign, monument. A freestanding sign supported primarily by internal structural 66 framework or integrated into landscaping or other solid structural features other than 67 support poles, ;and the base of which is at least seventy-five (75) percent of the total 68 width of the sign. Monument signs have the following additional characteristics: 69 70 (a) Ttie width of the base does not exceed twice the height of the total s9n 71 structure and d~ees not extend more than one (1) foot beyond either outside edge of the 72 face of the sign; 73 74 fib) Tl~e height of the base is between eighteen (18) inches and four (41 feet; 75 and 76 77 ~c~ The maximum height of the sign as measured from around level, does not 78 exceed eight (FI feet. 79 80 81 2 82 COMMENT 83 The amendments in Lines 33-39 define the term "electronic display sign." Specifically 84 excluded from the definition are ordinary time/temperature signs that do not alternate cycles more 85 frequently than every five seconds and signs continuously displaying only gasoline prices. The 86 remaining amendments to the section refine the definition of the term "monument sign." 87 88 •••• 89 90 91 ARTICLE 2. GENERAL REQUIREMENTS AND PROCEDURES APPLICABL 92 TO ALL DISTRICTS 93 94 •••• 95 96 B. SIGN REGULATIONS 97 98 •••• 99 100 Sec 217 Electronic displav signs. 101 102 a Electronic dis la si ns shall conform to the rovisions of this section all 103 a livable general sign regulations set forth in Part B of Article 2 and all applicable sign 104 regulations of the district in which an electronic displav scan is located. 105 106 fib) Electronic displav signs shall be allowed: 107 108 1 In the B-1 A B-2 B-3 and B-4 Business Districts• 109 110 2 In conjunction with hotels in the RT-1 Resort Tourist District• 111 112 (3) In conjunction with schools or other public uses in any zoning 113 district' provided that electronic displav suns m conjunction with 114 ublic parks shall be allowed only with the approval of the City 115 Council 116 117 4 In the B-3A Pembroke Central Business Core District and the B-4C 118 Central Business Mixed Use District with the approval of the City Council; 119 120 (5) By conditional use permit in conjunction with religious uses located 121 in a Residential or Apartment District; and 122 123 (6) In the PDH 1 Planned Unit Development District by modification to 124 the land use plan. 125 3 126 c No electronic display sign shall be allowed in conjunction with any use or 127 establishment unless such use or establishment is allowed to have a freestanding sign 128 under applicable district sign regulations and no such sign shalt be allowed in any 129 Historic and Cultural District In addition notwithstanding the provisions of subdivision 130 X10) of subsection (d) no electronic display sign within or visible from any portion. of a 131 Residential or Apartment District or any portion of PDH-1 Planned Unit Development 132 District other than a commercial area shall be illuminated between the hours of 10.00 133 p.m. and 6:00 a.ir. 134 135 Ld1 Electronic display signs shall conform to the following requirements: 136 137 ~ No more than one such sign shall be permitted on any zoning lot; 138 139 ~ No such sign shall exceed a height of eight !8) feet; 140 141 ~ The area encompassed by an electronic display shall- not exceed 142 three fourths (3/4) of the total area of the scan face or thirty-two (32) 143 square feet per face whichever is less The electronic display 144 panel shall have a minimum border width on all sides equivalent to 145 ten per cent (10%) of the total width of the electronic display panel. 146 Such border shall not be included in determining the area of the 147 sign; 148 149 X4;1 Such signs shall be monument -style in accordance with section 150 111 rovided however that in the B-3A Pembroke Central 151 Business Core District and B-4C Central Business Mixed Use 152 District the City Council may allow an establishment to have one 153 wall mounted (1) electronic display scan m lieu of a bwldm~lc 154 identification sign; 155 156 ~) No such sign shall advertise or direct the attention of the general 157 ublic to an establishment business or service that is located on a 158 separate site from the zoning lot on which the sign is located; 159 160 f Ei) The electronic display portion of such signs may not display any 161 pictures other graphic elements or any matter other than text and a 162 single loco without background illumination The logo displayed 163 shall be shown on the application for a sign permit required by 164 Section 210.1; 165 166 ~i') The pixel pitch of the electronic display portion of such signs shall 167 be nineteen (19) millimeters or smaller; 168 169 8 All electronic dis la s shall remain static fora eriod of at least one 170 (1) hour, and change sequences shall be accomplished by means 171 of instantaneous re-pixelization. Scrollmg flashing, blmkma or any 172 other type of intermittent illummation of elements of the display 173 shall be prohibited; 174 +~ such signs shall 175 (9) Audio speakers on or electronically connected 176 not be permitted: 177 178 10 Such si ns shall not exceed a maximum illumination of ive 179 thousand 5 000 candelas er s uare meter from sunrise to sunset 180 or five hundred 500 candelas er s uare meter between sunset 181 and sunrise as measured from the sin face at maximum 182 brightness and shall be equipped with a working dimmer control 183 device ca able of automaticall reducm the illumination to the 184 re uired sunset to sunrise level Prior to the issuance of a sign 185 permit the applicant shall provide written certification from the sign 186 manufacturer that the light intensity has been factory are set not to 187 exceed the maximum intensity level. 188 189 (11) The electrical service lines providing power to such signs shall e 190 underground. 191 192 COMMENT 193 194 195 The amendments allow electronic display signs by right only in certain zoning districts or m 196 conjunction with certain uses, such as schools and other public uses, with the exception of public 197 parks. In other places, such as public parks and religious uses in Residential and Apartment 198 Districts, electronic display signs are allowed with a City Council approval. 199 200 The amendments also provide that electronic display signs must, in addition tot e 201 provisions of this section, conform to the City's general sign regulations contained in Part B of 202 Article 2 of the City Zoning Ordinance and to the applicable sign regulations of the district in 203 which the sign is located. In particular, the ordinance makes it clear that an electronic display sign 204 is permitted only if a freestanding sign is allowed by the district regulations applicable to the site. 205 206 In addition, there are a number of requirements specific to electronic display signs t at height, 207 address the special characteristics of such signs. These requirements pertain to size, 208 frequency of message changes, wiring, sound and illumination. In addition, the ordinance prohibits 209 electronic display signs from advertising or directing the attention of the general public to an 210 establishment, business or service that is located on a separate site from the sign. This provision is 211 consistent with the City's prohibition of billboards. 212 213 Adopted by the City Coun~i010 the City of Virginia Beach, Virginia, on t e 214 day of 5 215 Approved as to (content: R-19 March 17, 2010 Approved as to legal Sufficiency: y ~` City Attorney's Office CA10718 N r t '~ s ~ ~ 3 R Z N v ~ ~ ~ ~ O .N : ~ ~ ~ ,~ Q Q O ~ Q ~ O ~ ~ (n ~ N N ~ N ~, ~ ~ ~ 'V C N ~ O 4- .r.. V ~ L r-+ .,.. v ~o ~~ ' ~ ~ w .~ ,~ o vi ~ ,~ .-. O •- ~ ~ ~ ~ ~ N ,.•~ c o o ca+. ~o~ ~ > ~ ~ ~ °' ~ ~T~ c ~~ m ~ X L > O t a~ ,, .,~ • ~~ ~N ~ ~~~ ~ ~ ~ ~3 a ~~-°c ~'~a p c ~ a ~ O ~ Q Q _ ~ d N _ ~ to N cv N +, O v o O . SZ u~ '~ N~ O -O C i O MW w„+ r ~. ~ ~_ y-.. ~ ,~ T ~ ~ ~ r ~ Q U C ~ ~ Q ~ ~ O ~ - ~ O I.L 'a ~ o E M tt3 ~ O ~ ca c..~ ~ O cv O N ~ V C O O ~ O .Q ~ ~ to - (0 ~ ~ > ~ ~ t6 a O U F O U c~ 3 "" O~ ~ O O p C O c 4 N ~ N ~ `~- N N p ~ ~ ~ ~ .~ N ~ •~ ~ L ~ O ~ ~ Z ~ > ~ ~ :~ ~- E n. E-- ~ m 3 ~ ~ ~ O~ ~ o +~ U ~ `~ ~ N ~~~OC o N _ `~-° ~ C O cn V ~.~ ~`/^~ V/ ~ .O ~ ~+ 0 ~ O ~ U ~ U L ~ ~ ~ ~ ~ ~ ~ V ~ ~= o ~ o~ ~ ~~~y~ o ~ 3 ~ O ~ ~ ~~~ cn p ~~ N~~~ N o m~ 0 0 .` o m° ~ Z(nQ N ~ N ~ a p . ~`-~' OQN~ p (~ ~ (n1,L~W~ vUc z ti r s v L L d r .~ V 7 N .~ C O V O v N' 3 0 U J C G ~ ~ ~ C G ~L Q Q Q Q ~ ~~ ~ ~ ~ ~ cv .~ L .~. o ~ ~ .~ ~L fn , ~ ~ O ~ ~ _ fA .~~ ~ ~ ~ ~ ~ (~ Q. ~ M W ~ (~ ~ o ~` ~ Q~ ~ m N c ~ ~ ,~ ~ ~ ~ ~ ~ .c . N cv c ~- ~ o .3 ~ _ ~ c ~ ~ M W C ~~ ~ ~ L ~ N C . fA ~ ca o o ~ ~ 00 ~ U ~ L o U ~ .~ ~ c ~ s ~ U . . L ~ ~ ~ ~~ ~ ~ ~ ~ O ~ - U F- ~ ~ o v~ -p c ~ ~-. ~ Y ~ ;~,, ~ ~ 3 ~~° ~ ~ a3 c ~ ~ o ~c ~a °- ~ ~ E ~ ~ 'c ~ 'v~~i ~ Q ° .-° N ~ ~ uoi ~ O ~. ~ m cn ~ m u~,~~ ~ ~ ~•- Q~ _ a~ 3 a~ N c ~ L a~ ~ o o ~Q z Z c ca 'U ~ U_ O ~ 'L N ~' ~_ 2U~ w w ~ N L .~ L 3 m c m im 3 a~ .~ U N ~_ L ^... G Q O ~C C r y-- O ~ ~ x ~a o c " 0 ~ ~' ~ i-. ~ 'p .a (a ~ U _' ~ ~ Q ~ ~ ti r t V L c~ L d .~ 0 N .~ c 0 v v d ~. 0 V 7 N 7 /O V w ~u w w w Q <L d Q Q c~ c~ cn cn c~ a~~ ~ >~ a~ ~ ~ L ca ~' s: ~ cn ~ cn _ ~ . L (n ~~ Q ` Q~ Q. ~c ~ ~ ~ - [_ Q~ ~ ~ ~ ~ p U U N N O (~ .c O ~ O ~ O ~ O N O ~ ~ ~ •~ ~ . ~ N cn ~ •L •~ ~ N ~ ~ ~ ~ ~ E ~ v . ~ ~ (n N L O ~ N ~ '~ ~ 'd ~ "~ ' Q 3 +~ ~ ~ .«, cep ~ •~ ~ ~ c c cn ~, '~a? 4: ~. ~ !~ ~ oai 1 ~ °C~ C ~ ~ c~ E _ vi E . . L ~ .~ ~ U' 3 m ~ N ~ O ~ ~. ~' ~ ~ o m w F ~~ ~~ ~ ~ City of Virgi riia B eacri k ~ .~ U :~ - -_~ - o; ' ?2 1,p ~ t.V ~.~ 0 N' OF OUR NANO V~}i1-V.l'W11 PLANNING DEPARTMENT/DEVELOPMENT SERVICES CENTER (DSC) MUNICIPAL CENTER PHONE (757)385-8277 BUILDING 2, ROOM 191 FAX (757) 385-5789 2405 COURTHOUSE DRIVE TDD 711 VIRGINIA BEACH, VA 234569040 INTER-OFFICE MEMORANDUM DATE: March 17, 2010 TO: James K. Spore, City Manager FROM: W. Jack Whitney, Planning Director SUBJECT: Electronic Display Signs, Proposed Amendment to the City Zoning Ordinance, Size I am writing in response to Councilman DeSteph's request that staff provide clear information regarding the size of an electronic display sign that will be allowed with the new compromise amendment (labeled R-19 or revision 19) by Councilwoman Wilson and Councilman Davis. In this version, 75% of the permitted sign area for a freestanding sign can be electronic display with a maximum of 32 square feet. A summary table follows: Use < 100' Frontage 100' to 200' Fronta e Over 200' Frontage Business uses in No freestanding Maximum 32 sq. ft. Maximum 75 sq. ft. the B-1A, B-2, B-3 sign allowed freestanding sign freestanding sign and B-4 Districts allowed allowed Maximum 24 sq. ft. Maximum 32 sq. ft. can be electronic can be electronic dis la dis la Hotels in the RT-1 No freestanding Maximum 32 sq. ft. Maximum 75 sq. ft. District sign allowed freestanding sign freestanding sign allowed allowed Maximum 24 sq. ft. Maximum 32 sq. ft. can be electronic can be electronic dis la dis la Use < 100' Frontage 100' to 200' Over 200' Frontage Fronta e Schools, public and Maximum 24 sq. ft. Maximum 24 sq. ft. Maximum 24 sq. ft. private in atl zoning freestanding sign freestanding sign freestanding sign districts allowed allowed allowed Maximum 18 sq. ft. Maximum 18 sq. ft. Maximum 18 sq. ft. can be electronic can be electronic can be electronic display display display Public parks As approved by City As approved by City As approved by City Council Council Council Religious User in i One freestanding One freestanding One freestanding Residential Di;~tricts sign per entrance sign per entrance sign per entrance with a maximum of with a maximum of with a maximum of 24 sq. ft. 24 sq. ft. 24 sq. ft. Maximum 18 sq. ft. Maximum 18 sq. ft. Maximum 18 sq. ft. can be electronic can be electronic can be electronic display display display Or as approved by Or as approved by Or as approved by City Council with the City Council with the City Council with the CUP CUP CUP In the PDH-1 As approved by City As approved by City As approved by City District Council Council Council L. APPOINTMENTS SOCIAL SERVICES BOARD M. UNFINISHED BUSINESS N. NEW BUSINESS O. ADJOURNMENT FY 2010-2011 Budget Schedule DATE _ TIME . .. March 30 4:00-6:OQ PM Special Formal Session . .w, . April 8 _ 0 4:00 6:OOPM April 13 1 hr before informal Apri120 4:00-6:00 PM __. April 22 6:00 PM Apri127 ~. hr before Informal ...... ... ..... Apri127 6:00 PM ._ May 4 4:00-6:00 PM ___.... May 11 6:OOPM -- .EVENT City Manager Presents Budget Workshop Workshop ~~~~~~ Workshop __ __ Public Hearing Public Hearing .. Public Hearing, Workshop ADOPTION - LOCATION ._.. _. City Council Conference Room _. City Council Conference Room City Council Conference Room ... __,_. City Council Conference Room Tallwood High School ~ ~~~~~ City Council Conference Room .... ... City Counci) Chamber . ~ ... City Council Conference Roam City Counci! Chamber CITY COUNCIL MID-YEAR RETREAT CITY OF VIRGINIA BEACH SUMMARY OF COUNCIL ACTIONS DATE: 3/9/2010 B PAGE: 1 E D S L E D H E W AGENDA L D S I E J S U I ITEM # SUBJECT MOTION VOTE I A T E D N O S H L W T V E Z Y L N O R S O T I P E E E E M I O O O S H L R Y S S N N D UA CITY COUNCII. BRIEFING: Bill Macali, LED S[GN Deputy City Attorney IUA CITY MANAGER'S BRIEFING: BOND SALES -NEW MONEY and Nancy Leavitt, REFUND~IG Debt Administrator, Finance III/IVNNI CERTIFICATE OF CLOSED SESSION CERTIFIED 9-0 Y Y A Y Y Y Y Y Y Y A E F-1 MINUTES -February 23„ 2010 APPROVED 9-0 Y Y A Y Y Y Y Y Y Y A G/H1 MAYOR'S PRESENTATIONS: PROCLAMATION -Girl Scouts 98's Troops 436, 471, 568 Birthday/Boy Scouts 2 RESOLUTION - Bayfront Advisory Committee/Shore Drive Community David Coalition Williams,VP, SDCC 3 RESOLUTION of Recognition and Appreciation Pastor Tommy Ta for Ul PUBLIC HEARINGS: SPSA Subordinated Revenue Bonds NO SPEAKERS 2 LEASE OF CITY PROPERTY North Landing and West Neck Roads NO SPEAKERS J/K/1 Ordinance to REPEAL City Code §23- ADOPTED, BY 9-0 Y Y A Y Y Y Y Y Y Y A 47/§§26-63 to 23-73 to remain re noise CONSENT regulations 2 Resolution AUTHORIZING issue/sale of ADOPTED, BY 9-0 Y Y A Y Y Y Y Y Y Y A GO Bonds, authorized May 12, 2009,of CONSENT $60.M to support CIP 3 Resolution to AUTHORIZE a Financing ADOPTED, BY 9-0 Y Y A Y Y Y Y Y Y Y A Plan with VBDA re refunding $85-M CONSENT earlier Bond issuances/issue "new money" Bonds not to exceed $17-M to fund Econ Dev proiects/equipment leases CITY OF VIRGINIA BEACH SUMMARY OF COUNCIL ACTIONS DATE: 3/9/2010 PAGE: 2 B E D S AGENDA L E D H E W ITEM # SUBJECT MOTION VOTE L I D S I E J S U I A T E D N O S H L W T V E Z Y L N O R S O T I P E E E ~ M I O O O S H L R Y S S N N D 4 Ordinance to AMEND Exchange ADOPTED, BY 9-0 Y Y A Y Y Y Y Y Y Y A Agreement with USN to include restricted CONSENT covenant in uitclaim Deed for Marshview 5 Ordinance to ACCEPT' from Va ADOPTED, BY 9-0 Y Y A Y Y Y Y Y Y Y A Gentlemen Foun. Construction/dedication CONSENT of JT's Grommet ParlJdonation of artwork re beach access for disabled 6 Ordinance to AUTHOIHZE I yeaz lease ADOPTED, BY 9-0 Y Y A Y Y Y Y Y Y Y A with E. R COCKRELL for farm land at CONSENT West Neck Road 7 Resolution to SUPPORT nomination of ADOPTED, BY 9-0 Y Y A Y Y Y Y Y Y Y A Bayfront Advisory Co:mttt/SDCC for CONSENT 2010 Governor's Translbrtation Safety Awazds 8 Resolution recognizing dedicated citizen ADOPTED, BY 9-0 Y Y A Y Y Y Y Y Y Y A for more than fifty years community CONSENT service 9 Ordinance to APPROPI[ZIATE $1,875,000 ADOPTED BY 9-0 Y Y A Y Y Y Y Y Y Y A from FEMA/$450,000 from CONSENT VDEM/TRANSFER $175,000 re Tropical Storm Ida (Nor'easter) Ul CAPE HENRY STATION, LLC CUP re APPROVED! 9-0 Y Y A Y Y Y Y Y Y Y A wind turbine on roof (WIECS) at 2817-2821 CONDITIONED, Shore Drive. District 5 - LYNNHAVEN BY CONSENT 2 WEST NECK PROPERTIES, APPROVED/ 9-0 Y Y A Y Y Y Y Y Y Y A JNCJROBERT ZIRPt)LI I1P re CONDITIONED, rnmmunity pier (private use) at BY CONSENT 1809/2933/2936 Estates Drive DISTRICT 5 - LYNNHAVEN 3 TOWN CENTER ASSOC, LLC to APPROVED/ 9-0 Y Y A Y Y Y Y Y Y Y A EXTEND closure of portion of Market CONDITIONED, Street (approved Mazch 24, 2009) BY CONSENT DISTRICT 5 - LYNNH/tVEN 4/a Ordinances of CITY/C2~O: ADOPTED BY 9-0 Y Y A Y Y Y Y Y Y Y A CONSENT AMEND §§111/211/21.7ADD 2l l.1 re roadside guide sigrt b AMEND/reduce setback: requirements for ADOPTED BY 9-0 Y Y A Y Y Y Y Y Y Y A in-ground swimming pools in R-SR neaz CONSENT Atlantic Ocean CITt'€»' 6'tRG7b'19 B73ACH s~-:~~~iax;° ~r~ ct~~i.'t~cr~ nc~rrv~~s C1.4T1:: 3t~)t2t3 (() 6 1'i1CiE: 3 ~ D L E l3 F{ C~ ~` xGRNDr~ L D S 1 E 1 S U 1 1TE:~1 # SUt3JECI' :y1OTtOt~ VOTE I A T E D N O S H L yy` T ~= E ~ Y t_ ti O R S U T I P E F. E E ni [ O U O S tl L R Y S S N N D . Ak1Ir.Pill 411 IIAT}ll 4217 rc L?EFERRED TU 9-tl Y Y A Y 5' ~' ~` Y ~' ~" r1 ~ amnamenUrteetroaicdaapiay suns 3t23t1C1. BY tde[crruJ February 9, 2C?10} COtiSEhT '~t :+~FYt)Ih'1'~3F;1\`TS: RESCHEDLLED Y C U N S E N S t1 S SUCIAL SERVICtS [3OARD }tEALTH SERViCF1S ADVISURY Apixrintcr~ ~)d) Y Y` a '~" ~' Y Y Y Y Y A SUA RD Laurie hlacphcrsan Reaplx~intc:d GlG,nn C, Snvders 3 Yr Terms ~Irrit~-3r3tt1-> Hi3'viA'~ RIGHTS C0;41I*<tISSiON :~inte~i r}_E} y` ~' A Y Y Y Y k' Y Y r1 F~I)t44an Perry 3 Y r Te7m 4JN[{}-3t~it13 SENIUR SER4`iCE5 OF :~pgx~inted ~-(1 Y Y A Y Y Y y Y k' Y A fiOt.3THE.4STERN V1RGIh1~ Michael Aschkenas t?ncxnir~d thru 12/31!1 titO/P AI}J()UR~:titI:NT: 7:2Ci F\4 PUBLIC cc~;~~'n~t~:'wTS Twd 'fan-.~renda Etems SPE~I{ERS ~:~ I -~1:32~'I F'Y ?~1A-2t)il Sadeet schedale DATE - TIME EVENT LOCATION w~.~ .... ... ,,. ,;~ E March 23 6:OO PM : ~~ Mana er Presents Bud et .~ ~. ~. i' ~ Gty Council,. ha~rcer _ _._ ,~_ ~....____.._ i MarcF~ 30 ... __ .. __ . __ _ _ _ 4:00-6.~ PM .~.,. . . `Workshop ~ City Coundl Conference Room ~_ ._ April $ 4:00-6:QOPM ~ ViorkshDp ... ~ _.. .-,d . City Council Conference Room . .. , ~ A rtl 23 1 hr before Informal Worksnap City Council Conference Room ! April ZO 4:00-6:00 PM Workshop ro~~ _ City CouncihConference Room ~. _ _ .. .~ ~ _ ~ A~rtl 22 ._ 6:Ot0 PM ~._ A ~uafic Hearing Tatlwoad High School Apri127 1 hr before Informal Public Heanng City Cauncii Conference Room Apri127 6.00 PM .. ~ _ _.. Public Wearing . ~.._..a_ _ City Council Chamber .~ ..~a. ._ _, _ .__. ~~ ,~__~ May 4 ~ 400-6:06 PM Workshop m......w_~...~~ City Council Conference Room ~ ___ ~...~ .~, ~~.. Ma 11 .. _.~..~-_._..____._ ~ 6:06PM __~ _ . ..o.~ ADQPTI4N ~.. ~, ._~.. City Council Chamber _.. _ .~. _ _ . ~_._ ,~.. ~»_. C'TT}` fIF' t'IItCrTi'47~i REAC7~ .ST>>'~2.~tA~R}" QI< G(1L.'4GTG AC'77!)ti,S P,~CiE: 4 Q 1=G t> S AG~?VI~.~ ~ E D H E`s tt` Pt'E?~1 # SC`t37CCT ?44QTt0'`i w't)TE L D S ~ f L J S C~ t t ;~ ry E C> ;~ ~} S H [, l~' T V F 7 Y` L iv Q Ft S C) T I P E ~ E E hf f t} (~ () S f-f 1. R Y S S '~ ti D CITY CC.II:~TCIL ~~IID-YEAR. RETREAT