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HomeMy WebLinkAboutOCTOBER 12, 2010 AGENDA (2)CITY COUNCIL MAYOR WILLIAM D. SESSOMS, JR., At -Large VICE MAYOR LOUIS R. JONES, Bayside - District 4 RITA SWEET BELLITTO, At -Large GLENN R. DAVIS, Rose Hall - District 3 WILLIAM R. DeSTEPH, At -Large HARRY E. DIEZEL, Kempsville - District 2 ROBERTM. DYER, Centerville - District I BARBARA M. HENLEY, Princess Anne - District 7 JOHN E. UHRIN, Beach - District 6 ROSEMARY WILSON, At -Large .1AMES L. WOOD, Lynnhaven -District 5 CITY COUNCIL APPOINTEES CITY MANAGER -- JAMES K.SPORE CITY ATTORNEY - MARK D. STILES CITY ASSESSOR - JERALD BANAGAN CITY AUDIT OR - LYNDON S. REM/AS CITY CLERK - RUTH HODGES FRASER, MMC CITY OF VIRGINIA BEACH "COMMUNITY FOR A LIFETIME" CITY COUNCIL AGENDA 12 October 2010 I. CITY COUNCIL LIAISON REPORTS II. CITY COUNCIL COMMENTS III. CITY COUNCIL AGENDA REVIEW - Conference Room - IV. INFORMAL SESSION - Conference Room - A. CALL TO ORDER — Mayor William D. Sessoms, Jr. B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION CITY HALL BUILDING 2401 COURTHOUSE DRIVE VIRGINIA BEACH, VIRGINIA 23456-8005 PHONE. -(757) 385-4303 FAX (757) 385-5669 E-MAIL: Crycncl@vbgov.com 3:30 PM 5:00 PM I. CITY COUNCIL LIAISON REPORTS - Conference Room - 3:30 PM 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 11 V. FORMAL SESSION - City Council Chamber - 6:00 PM 11 A. CALL TO ORDER — Mayor William D. Sessoms, Jr. B. INVOCATION: Ms. Ruby Christian Chaplain, City of Virginia Beach C. PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA D. ELECTRONIC ROLL CALL OF CITY COUNCIL E. CERTIFICATION OF CLOSED SESSION F. MINUTES 1. INFORMAL and FORMAL SESSIONS September 28, 2010 G. FORMAL SESSION AGENDA H. PUBLIC HEARING LAKE GASTON INGRESS — EGRESS EASEMENT Ashley Harrell - 36156 Burdette Road, Southampton County GRANT OF EASEMENT OVER CITY PROPERTY TO ASHLEY M. HARRELL The Virginia Beach City Council will hold a PUBLIC HEARING Tuesday, October 12, 2010 at 6:00 p.m., in the Council Chamber of the City Hall Building (Bldg #1) at the Municipal Center, Virginia Beach, Virginia. The purpose of this hearing will be to obtain public comment on the City's proposal to grant an ingress and egress easement across the Lake Gaston water line at 36156 Burdette Road, Southampton County, Virginia, to Ashley M. Harrell. Any questions concerning this matter should be directed to the Department of Public Utilities, Building #2, at the Virginia Beach Municipal Center. The Department of Public Utilities telephone number is (757) 385-4171. If you are physically disabled or visually Impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 757- 3854303; Hearing impaired, call 711 (Virginia Relay - Telephone Device for the Deaf). Ruth Hodges Fraser, MMC City Clerk Beacon October 3, 2010 21786876 CONSENT AGENDA J. ORDINANCES/RESOLUTION 1. Ordinance to AUTHORIZE the City Manger to execute the necessary documents to convey a permanent ingress and egress easement across the Lake Gaston water line to ASHLEY HARRELL at 36156 Burdette Road, Southampton County 2. Resolution to AUTHORIZE the issuance, sale and execution of $20 -Million Series 2010A Storm Water Utility Revenue Bonds and Refunding Revenue Bonds Series 2010B not to exceed $8 -Million re storm water utility system improvements Resolution REQUESTING the City's Delegation to the 2011 General Assembly Session support legislation that will meet the City's goals and objectives set forth in the 2011 Legislative Agenda 4. Ordinance to AUTHORIZE the City Manger to execute the necessary documents to accept rehabilitated property from WM Jordan Company, Inc. for use as housing for the Disabled at 1457 Ewell Road 5. Ordinance to TRANSFER $377,518 from the Sheriff's Workforce Release Facility Design and Site Selection to the FY2010-11 Inmate Services Fund Reserves for Contingencies re inmate benefits 6. Ordinances to TRANSFER funds from the Reserve for Contingencies to the FY2010-11 Operating Budgets: a. $200,000 to the City Attorney re employing an Election Specialist to assist in redrawing the City's seven residence District Boundaries b. $175,000 to Housing and Neighborhood Preservation re enhanced Homeless assistance rS Nu j CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Authorize the Conveyance of a Permanent Ingress and Egress Easement Across the Lake Gaston Water Line MEETING DATE: October 12, 2010 ■ Background: The City of Virginia acquired approximately 329 acres of land in Southampton County, Virginia by deed from the Norfolk and Western Railway Company for use as the utility corridor for the Lake Gaston Water Supply Project, an underground pipeline providing up to 60 million gallons of water per day for citizens of Southeastern Virginia. The conveyance was made expressly subject to any and all easements, conditions, reservations and restrictions of record or as may be apparent from an examination of the land. A gravel driveway running south (across the current pipeline) from Burdette Road Route 169 to 36156 Burdette Road existed at the time of the conveyance to the City. The owner of 36156 Burdette Road would like the City to convey a 25' -wide permanent ingress and egress easement across the Lake Gaston Water Line, where the driveway is located. ■ Considerations: The driveway will not impact the City's ability to operate, maintain and repair the Lake Gaston Water Line, the owner of 36156 Burdette Road will (1) warrant that she will not damage or interfere with the Lake Gaston Water Line; (2) agree to indemnify the City from any liability resulting from the use of the ingress and egress easement; and (3) maintain the driveway. ■ Public Information: Advertisement of Public Hearing Advertisement of City Council Agenda ■ Recommendations: Authorize the City Manager to execute the necessary documents to convey a permanent ingress and egress easement. ■ Attachments: Ordinance, Exhibit Plat and Summary of Terms Recommended Action: Approval of the Ordinance Submitting Department/Agency: Department of Public Utilities City Manager: S K—. (2S6&1111 1 AN ORDINANCE TO AUTHORIZE THE 2 CONVEYANCE OF A PERMANENT INGRESS 3 AND EGRESS EASEMENT ACROSS THE LAKE 4 GASTON WATER LINE 5 6 WHEREAS, the City of Virginia Beach (the "City") owns approximately 329 7 acres of land (the "Property") in Southampton County, Virginia, which it acquired by 8 deed (the "Deed") from the Norfolk and Western Railway Company, recorded in Deed 9 Book 326, at page 827, in the Clerk's Office of the Circuit Court of Southampton County; 10 11 WHEREAS, City acquired the Property for use as the utility corridor for the 12 Lake Gaston Water Supply Project, an underground pipeline (the "Pipeline") providing 13 up to 60 million gallons of water per day for citizens of Southeastern Virginia; 14 15 WHEREAS, the Deed was made expressly subject to any and all 16 easements, conditions, reservations and restrictions as may appear of record or as may 17 be apparent from an examination of the premises; 18 19 WHEREAS, a gravel driveway (the "Driveway") running south (across the 20 current Pipeline) from Burdette Road Route 169 to 36156 Burdette Road, Southampton 21 County, Virginia, existed at the time of the Deed; 22 23 WHEREAS, Ashley M. Harrell ("Harrell"), the current owner of 36156 24 Burdette Road, would like the City to convey a permanent ingress and egress easement 25 across the portion of the Property where the Driveway is located, for the benefit of 26 Ashley M. Harrell and/or her successors and assigns. 27 28 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY 29 OF VIRGINIA BEACH, VIRGINIA: 30 31 1. That the City Council approves the conveyance of a permanent ingress 32 and egress easement (the "Easement") for the benefit of Ashley M. Harrell and/or her 33 successors and assigns for the purpose of providing access to 36156 Burdette Road, 34 Southampton County Virginia, shown as "25' Proposed Ingress & Egress Easement" on 35 that plat entitled "Exhibit Showing Easement for Ingress/Egress for Ashley M. Harrell 36 Located at 36156 Burdette Road Jerusalem Magisterial District Southampton County, 37 Virginia" attached hereto as Exhibit A, and a made a part hereof. 38 39 2. That the City Manager or his authorized designee is hereby authorized 40 to execute the Deed of Ingress and Egress Easement and any other documents 41 necessary and appropriate in connection with the Easement, so long as such 42 documents are in substantial conformity to the Summary of Terms attached hereto as 43 Exhibit B, and made a part hereof, and such other terms, conditions or modifications 44 deemed necessary and sufficient by the City Manager and in a form deemed 45 satisfactory by the City Attorney. 46 47 Adopted by the Council of the City of Virginia Beach, Virginia, on the 48 day of , 2010. CA -11643 \\vbgov.com\DFS1Wpl)licabons\CityLawProd\cycom32\Wpdocs\D026\P008\00068912.DOC R-1 DATE: 8/26/2010 APPROVED AS TO CONTENT Pub Ic Utilitie$ APPROVED AS TO LEGAL SUFFICIENCY uot,dl City Attorne Office EXHIBIT "A" W b 2 a N %G12648557[1,7 AV 52 W IRON PIN SET E 2471468.346il5 64' BY OLD GOWN PINE ti -.3 WGHT OF VER WATER SUPPLY d _ - �tj0'101 UTH, VA.1 NORFOLKORTSMO- y JOSEPH A.TALLEY I.P. 49 - 59 W.B.37 PC. 320 JACOB T. POND. III PATTIE S. POND 1 TAX PARCEL 49 - 58 TP. 49 - 36 ; 09.385 PG. 803 �o AREA = 5.184 AC. CtTY OF VIRGINIA BEACH \ o � nl � O v o THIS SURVEY IS SUBJECT TO ANY SUPPLY PROJECT EASEMENT OF RECORD AND OTHER P.O. 17PG. 7 PERTNIENT FACTS WHICH A TITLE SEARCH MIGHT DISCLOSE. I HEREBY CERT%Y THAT THE PROPERTY SHOWN ON TINS PLAT IS LOCATED NI ZONES "X' AND "AE* AS SHOWN ON THE FLOOD INSURANCE \POLE RATE MAP. COMMIMITY-PANEL NO. + 510315 0170 C. DATED SEPT. 4. \ 2002. POLE CURVE DATA Ot 11109R.E �/+ -- HOME IRON PRI SET tN BRANCH \N19'2C39"W 108.48' 30' MAPLE ON DITCH W10L0 FENCE N 24' 52' 18" W 42" SYCAMORE ON DITCH W/OLD FENCE N26' 51'G7"W' 39.84' 20- MAPLE ON DITCH Nt2'54'30"E 41.73' N37.413"EE 25.81' 8' ELM 09 7-4'13-125.81' L., N44'27'32'E 29.96' N 43' 57' 20" E 72.81' ALONG DTICH . N t0' 45' 25" E 102.28' POWER LINE SCALE -- _mow. o' 100' 200' IRON PNM SET p 2' 3T 49' IN CH R 3779.70' LONE` _ - i SERVICE POL T 132.68' r ZONE '� t ` _ l = 265.32' / it ° WEII 130.82' R .5829.70' C . 265.30' / z C.G.: N89'34'3Z"E Nt62054.7661r © K11 tis I i E 24715351722 ' R = 5779.70' W L = 265.32' 0.v 5779.70' I,' 11882 JIB t l :119F4- IRON PIM SET 1 o / I EOUMD III PIPE 75 E OETA0. i / CONSTRUCTION BASE LINE ` �� .&Kt GASTON WATER SUPPLY PROJECT CITY OF VIRGINIA BEACH 11 �,�, 49.17 PG. 7 h 1-5679.70, 1_ 0._5629 70' aTE.619 euR�EaO• R = 5779.70' \ L .26871 T1 CtTY OF VIRGINIA BEACH \ o LAKE GATON WATER SUPPLY PROJECT P.O. 17PG. 7 25 �\ PROPOSEDINGRESS S EGRESS EASEMENT'\ 1_ 1; al W •� h 111'[1 .OL,.O R . 5629.70' ^ . 253 YAWN 8 CANADA - LAND SURVEYING 25085 NEW MARKET RD. COURTLAND. VA. 23637 TEL.NO.757-562-4923 1212 5. CHURCH ST. SMITHFIELD, VA. 23430 TEL. NO. 757-357-3106 EXIAMT SHOWING EASEMENT FOR INGRESS/EGRESS FOR ASHLEY M. HARRELL LOCATED AT 36156 BUROETTE ROAD JERUSALEM MAGISTERIAL DISTRICT SOUTHAMPTON COUNTY. VIRGINIA SCALE 1" = 100' AUG. 17. 2009 t%STR. •t00000599 REFERENCE - D.B. 281 PG. 557 P.O. 4 PG. 134 P9.17 PG. 7 •- DENOTES IRON PIPE FOUND o- DENOTES IRON PIN SET THE UNDERSIGNED HEREBY AGREES TO THE 25' INGRESS 8 EGRESS EASEMENT. DATE REVISED APRIL 13, 2010DATE------ REVISED NOV. 13. 2009 F09414-5 53-50 REVISED OCT. 16, 2009 EXHIBIT `B" SUMMARY OF TERMS Conveyance of a Permanent Ingress and Egress Easement across the Lake Gaston Water Line GRANTOP:: City of Virginia Beach GRANTEE: Ashley M. Harrell PROPERTY: Portion of approximately 329 acres located in Southampton County, Virginia and acquired from Norfolk and Western Railway company by deed recorded in Deed 326, at page 827 LEGAL DESCRIPTION OF EASEMENT AREA: ALL THAT certain easement area (the "Easement Area") belonging, lying, situate and being in Southampton County, Virginia, and designated and described as "25' PROPOSED INGRESS & EGRESS EASEMENT" as shown on that plat entitled "EXHIBIT SHOWING EASEMENT FOR INGRESS/EGRESS FOR ASHLEY M. HARRELL LOCATED AT 36156 BURDETTE ROAD JERUSALEM MAGISTERIAL DISTRICT SOUTHAMPTON COUNTY, VIRGINIA", dated August 17, 2009 and revised through April 13, 2010, said plat being attached hereto as Exhibit A, to which reference is made for a more particular description. CONDITIONS OF EASEMENT: 1. Grantor shall have the right to construct, operate, maintain and repair the water pipeline and transmission facilities (the "Facilities"), located within the Easement Area and will assume no responsibility or liability if access of Grantee is disrupted by construction, repairs, maintenance, or condition of Grantor's property and Facilities; and will assume no responsibility or liability if access of Grantee is disrupted by construction, repairs, maintenance, or condition of Grantor's property and Facilities. 2:. Grantee will be allowed to have access over the Easement Area, but only to the extent described in the Deed of Easement; will warrant and guarantee that she will not damage in any way the Grantor's Facilities and property, or interfere with construction, operation or maintenance activities by the Grantor; will agree to indemnify, defend and save Grantor harmless from any liability to any third parties as a result of Grantee's use of this Easement; and will agree that the maintenance of the Easement Area is the responsibility of the Grantee and that restoration of the Easement Area due to pipeline repair will be at the cost of the Grantee. CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Resolution of the City of Virginia Beach, Virginia, to Provide for the Issuance and Sale of Storm Water Utility Revenue Bonds, Series 2010A, in an Aggregate Principal Amount of $20,000,000, and Storm Water Utility Refunding Revenue Bonds, Series of 2010B, in an Aggregate Principal Amount not to Exceed $8,000,000, Providing for the Form, Details and Payment Thereof to Finance and Refinance the Cost of Improvements to the City's Storm Water Utility System and Authorizing the Execution and Delivery of Certain Documents Related to Such Financing MEETING DATE: October 12, 2010 ■ Background: In accordance with the City's Capital Improvement Program, City Council periodically authorizes the issuance of storm water revenue bonds to finance certain capital improvements for the Storm Water Utility system. The Department of Finance, in conjunction with the Department of Public Works, has identified the need for such action and, with the Office of the City Attorney, has developed a financing plan that includes current refunding opportunities and the use of Build America Bonds to take advantage of favorable market rates. The new money portion of the sale will be for $20 million, utilizing previous Council storm water revenue bond authorizations (portions of 1998 through portions of 2006). The refunding portion is currently estimated to be $8.0 million, but the final number will be based on market conditions at the time of sale. ■ Considerations: The enclosed resolution provides for the issuance and sale of the 2010 Series of storm water revenue and refunding bonds. The resolution provides for the distribution of the Preliminary Official Statement (POS) along with other necessary actions. The resolution also amends the Agreement of Trust to provide for the 2010 series of bonds. The City's engineers have concluded that the existing storm water rates and charges are sufficient to support the debt service costs on the 2010 bonds. The bond sale is scheduled for November 9. The overall interest rate (true interest cost) will not exceed 5%. The results of the sale will be provided to City Council. After today's Council action no further vote of the Council will be necessary. ■ Public Information: Public information will be handled through the normal Council agenda process. Also, a Notice of Sale for the 2010 Series of bonds will be placed in The Bond Buyer. Copies of the Preliminary Official Statement and the Agreement of Trust can be found in the City Clerk's Office. ■ Recommendations: The enclosed Resolution providing for the sale of.storm water revenue and refunding bonds Series 2010 is recommended for approval by City Council. ■ Attachments: Resolution; Draft of Second Supplemental Agreement of Trust; Draft Notices of Sale (2); Draft of Continuing Disclosure Agreement. Copies of the Preliminary Official Statement and the Agreement of Trust can be found in the City Clerk's Office and on the Finance Department Web page at www.beachnet.vbgov.com. Recommended Action: Approval Submitting Department/Agency: Department of Finance City Manager- Sk-c RESOLUTION OF THE CITY OF VIRGINIA BEACH, VIRGINIA, TO PROVIDE FOR THE ISSUANCE AND SALE OF STORM WATER UTILITY REVENUE BONDS, SERIES 2010A, IN AN AGGREGATE PRINCIPAL AMOUNT OF $20,000,000, AND STORM WATER UTILITY REFUNDING REVENUE BONDS, SERIES 2010B, IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $8,000,000, PROVIDING FOR THE FORM, DETAILS AND PAYMENT THEREOF TO FINANCE AND REFINANCE THE COST OF IMPROVEMENTS TO THE CITY'S STORM WATER UTILITY SYSTEM AND AUTHORIZING THE EXECUTION AND DELIVERY OF CERTAIN DOCUMENTS RELATED TO SUCH FINANCING WHEREAS, the Council (the "Council") of the City of Virginia Beach, Virginia (the "City"), desires to issue its storm water utility revenue and refunding bonds to finance and refinance the costs of improvements and extensions to its storm water utility system (the "System"), including the redemption of all or a portion of the City's outstanding Storm Water Utility Revenue Bonds, Series 2000 (the "Series 2000 Bonds"), and to pay costs of issuing its bonds; WHEREAS, the Council adopted ordinances on May 12, 1998 (the "1998 Ordinance"), May 11, 1999 (the "1999 Ordinance"), May 9, 2000 (the "2000 Ordinance"), May 15, 2001 (the "2001 Ordinance"), May 13, 2003 (the "2003 Ordinance"), May 11, 2004 (the "2004 Ordinance"), May 10, 2005 (the "2005 Ordinance"), and May 9, 2006 (the "2006 Ordinance") (collectively, "the Ordinances"), authorizing the issuance of the City's storm water utility revenue bonds in the amounts of $9,100,000, $5,300,000, $3,900,000, $200,000, $580,000, $510,000, $2,420,000, and $2,510,000, respectively; WHEREAS, the Council has determined that it is in the best interests of the City to undertake the above-described financing by the issuance of $20,000,000 in maximum aggregate principal amount of its storm water utility revenue bonds, pursuant to the Ordinances ($5,028,440 authorized by the 1998 Ordinance, $5,300,000 authorized by the 1999 Ordinance, $3,900,000 authorized by the 2000 Ordinance, $200,000 authorized by the 2001 Ordinance, $580,000 authorized by the 2003 Ordinance, $510,000 authorized by the 2004 Ordinance, $2,420,000 authorized by the 2005 Ordinance, and $2,061,560 authorized by the 2006 Ordinance), this Resolution and applicable law; WHEREAS, the Council desires to authorize the City Manager, in collaboration with Government Finance Associates, Inc., the City's financial advisor (the "Financial Advisor"), to determine whether to designate a portion of such storm water utility revenue bonds as "Build America Bonds" within the meaning of Section 54AA of the Internal Revenue Code of 1986, as amended (the Code); WHEREAS, the Council desires to refund all or a portion of the City's Series 2000 Bonds, by the issuance of up to $8,000,000 in maximum aggregate principal amount of its storm water utility refunding bonds; and 1 WHEREAS, there have been presented to this meeting or otherwise made available the following documents and draft documents in connection with the undertaking of the above- described financing and refinancing and the issuance and sale of such bonds: (a) Agreement of Trust dated as of January 1, 2000, between the City and U.S. Bank National Association (as successor to First Union National Bank), as trustee (the "Trustee"), as previously supplemented (the "Master Agreement of Trust"); (b) Draft of Second Supplemental Agreement of Trust dated as of November 1, 2010, between the City and the Trustee (the "Second Supplemental Agreement" and, together with the Master Agreement of Trust, the "Agreement of Trust"), pursuant to which such bonds will be issued, and including the forms of such bonds as exhibits thereto; (c) Draft of Notice of Sale to be dated on or about October 27, 2010, to advertise such storm water utility revenue bonds for sale, and draft of Notice of Sale to be dated on or about October 27, 2010, to advertise such storm water utility refunding revenue bonds for sale (collectively, the "Notice of Sale"); (d) Draft of Preliminary Official Statement to be dated on or about October 27, 2010 (the "Preliminary Official Statement"), relating to the public offering of such bonds; and (e) Draft of Continuing Disclosure Agreement dated as of November 1, 2010 (the "Continuing Disclosure Agreement"), pursuant to which the City will agree to undertake continuing disclosure obligations pursuant to Rule 15c2-12 promulgated by the Securities and Exchange Commission, as amended (the "Rule"), for the benefit of the holders of such bonds. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: 1. Authorization of Bonds and Use of Proceeds. The City hereby authorizes the issuance and sale of its storm water utility revenue bonds and its storm water utility refunding revenue bonds in an aggregate principal amount not to exceed $28,000,000 (the "Bonds"), in one or more series, pursuant to the Constitution and statutes of the Commonwealth of Virginia, including the City Charter and the Public Finance Act of 1991, to finance the costs of improvements and extensions to the System, to redeem all or a portion of the Series 2000 Bonds, and to pay costs of issuing the Bonds. 2. Second Supplemental Agreement. The City Manager is hereby authorized and directed to execute and deliver the Second Supplemental Agreement, which shall be in substantially the form presented to this meeting, which is hereby approved, with such completions, ornissions, insertions and changes not inconsistent with this Resolution as the City 2 Manager may approve, including such changes as may be required if a portion of the storm water utility revenue bonds are not designated as 'Build America Bonds" as described in Section 3 of this Resolution. The execution of the Second Supplemental Agreement by the City Manager shall constitute conclusive evidence of his approval of any such completions, omissions, insertions and changes. 3. Bond Details. The Bonds shall be designated "Storm Water Utility Revenue Bonds, Series 2010A," and "Storm Water Utility Refunding Revenue Bonds, Series 2010B," or such other designations as may be approved by the City Manager, shall be dated the date determined by the City Manager, shall be in registered form, in denominations of $5,000 and multiples thereof, and shall be numbered RA -1 or RB -1 upward. Each Bond shall bear interest at such rate as shall be determined at the time of sale, payable semiannually on dates determined by the City Manager, calculated on the basis of a 360 -day year of twelve 30 -day months. The City Manager is authorized to determine, in collaboration with the Financial Advisor, to designate a subseries of the Series 2010A Bonds as 'Build America Bonds" within the meaning of Section 54AA of the Code and a subseries of the Series 2010A Bonds as tax-exempt obligations. The Council authorizes the issuance and sale of the Bonds in such principal amounts and upon such terms as shall be determined by the City Manager in collaboration with the Financial Advisor; provided that the Bonds shall (a) have a true interest cost not exceeding 5.00% per year (taking into account any original issue discount or premium and taking into account direct subsidy payments from the United States allocable to any Bonds designated as 'Build America Bonds"), (b) have a final maturity no later than the year 2035, (c) be sold at a price not less than 100% of the aggregate principal amount thereof, and (d) be in an aggregate principal amount not exceeding $28,000,000. 4. Preparation and Delivery of the Bonds. The Mayor is hereby authorized and directed to execute the Bonds by manual or facsimile signature, the City Clerk is hereby authorized and directed to countersign the Bonds and affix the seal of the City thereto or cause a facsimile thereof to be printed thereon, and the officers of the City are hereby authorized and directed to deliver the Bonds to the Registrar (as defined in the Agreement of Trust) for authentication and delivery to the purchaser. 5. Pledge of Security. The Bonds shall be limited obligations of the City, payable solely from Pledged Revenues (as defined in the Agreement of Trust) and the funds created by the Agreement of Trust and pledged to the payment of the Bonds, and nothing in the Bonds or the Agreement of Trust shall be deemed to create or constitute an indebtedness or pledge of the full faith and credit of the Commonwealth of Virginia or any political subdivision thereof, including the City. 6. Sale of Bonds. The Bonds shall be sold through two competitive sales. The City Manager, in collaboration with the Financial Advisor, is authorized and directed to take all proper steps to finalize and distribute, in accordance with standard practices of municipal securities, the Notice of Sale, which shall be in substantially the form presented to this meeting, which is hereby approved, with such completions, omissions, insertions and changes as the City Manager may approve to the reflect the terms of the Bonds determined in accordance with this Resolution. The City Manager is authorized to receive bids for the Bonds and to award the Bonds to the bidder providing the lowest true interest cost, subject to the limitations set forth in Section 3 of this Resolution. The actions of the City Manager in selling the Bonds by competitive sale shall be conclusive, and no further action with respect to the sale and issuance of the Bonds shall be necessary on the part of the Council. 7. Official Statement. The City Manager is hereby authorized and directed to approve the distribution of the Preliminary Official Statement to potential purchasers of the Bonds with such completions, omissions, insertions and other changes not inconsistent with this Resolution as the City Manager, in collaboration with the Financial Advisor and with Kaufman & Canoles, a Professional Corporation, as bond counsel for the Bonds ("Bond Counsel"), may consider appropriate to complete it as an official statement in final form. The City Manager is authorized, on behalf of the City, to deem the Preliminary Official Statement and the final Official Statement to be "final" as of.their dates within the meaning of the Rule, except for the omission from the Preliminary Official Statement of certain pricing and other information permitted to be omitted pursuant to the Rule. The City Manager is further authorized, on behalf of the City, to execute the final Official Statement. The distribution of the Preliminary Official Statement and the execution of the final Official Statement by the City Manager shall be conclusive evidence that each has been approved and deemed final. 8. Continuing Disclosure. The City Manager is hereby authorized and directed to execute and deliver the Continuing Disclosure Agreement, which shall be in substantially the form presented to this meeting, which is hereby approved, with such completions, omissions, insertions and changes not inconsistent with this Resolution as the City Manager may approve. The execution of the Continuing Disclosure Agreement by the City Manager shall constitute conclusive evidence of his approval of any such completions, omissions, insertions and changes. 9. Non -Arbitrage Certificate and Elections. Such officers of the City as may be requested by Bond Counsel are authorized and directed to (a) execute appropriate certificates setting forth the expected use and investment of the proceeds of the Bonds to show that such expected use and investment will not violate the provisions of Section 148 of the Code, and the regulations thereunder, applicable to "arbitrage bonds," (b) make any elections that such officers deem desirable, in consultation with Bond Counsel, regarding any provision requiring rebate to the United States of "arbitrage profits" earned on investment of proceeds of the Bonds, and (c) file Internal Revenue Service Form 8038-G and, with respect to any Bonds designated as 'Build America Bonds," Form 8038-B. The foregoing shall be subject to the advice, approval and direction of Bond Counsel. 10. Further Actions. All other actions of officers of the City that are in conformity with the purposes and intent of this Resolution and in furtherance of the issuance and sale of the Bonds, and the plan of financing and refinancing related thereto, are hereby approved and ratified. The officers of the City are authorized and directed to execute and deliver such further certificates and instruments and to take all such further actions as may be considered necessary or desirable in connection with the issuance, sale and delivery of the Bonds. 11. Effective Date. This Resolution shall take effect immediately. 4 Requires an affirmative vote by a majority of all of the members of City Council. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: /140 nf -AIA �%ll 114 -A4A Finance D end �Q� � City Att ice CAI 1616 R-1 29 September 2010 5 CERTIFICATE The undersigned Clerk of the City Council (the "Council") of the City of Virginia Beach, Virginia (the "City"), hereby certifies that: 1. A meeting of the Council was duly called and held on October 12, 2010 (the "Meeting"). 2 Attached hereto is a true, correct and complete copy of a resolution (the "Resolution") of the Council entitled "Resolution of the City of Virginia Beach, Virginia, to Provide for the Issuance and Sale of Storm Water Utility Revenue Bonds, Series 2010A, in an aggregate principal amount of $20,000,000, and Storm Water Utility Refunding Revenue Bonds, Series 2010B, in an Aggregate Principal Amount Not to Exceed $8,000,000, Providing for the Form, Details and Payment Thereof to Finance and Refinance the Cost of Improvements to the City's Storm Water Utility System and Authorizing the Execution and Delivery of Certain Documents Related to Such Funancing," as recorded in full in the minutes of the Meeting and duly adopted by a majority of the members of the Council present and voting during the Meeting. 3. A summary of the members of the Council present or absent at the Meeting, and the recorded vote with respect to the Resolution, is set forth below: Voting Member Name William D. Sessoms, Jr., Mayor Louis R. Jones, Vice Mayor Robert M. Dyer Harry E. Diezel Glenn R. Davis James L. Wood John E. Uhrin. Barbara M. Henley Bill R. DeSteph Rita Sweet Bellitto Rosemary Wilson Present Absent Yes No Abstaining 4. The Resolution has not been repealed, revoked, rescinded or amended, and is in full force and effect on the date hereof. WITNESS MY HAND and the seal of the City of Virginia Beach, Virginia, this day of October, 2010. (SEAL) Clerk, Council of the City of Virginia Beach, Virginia 7i gi DRAFT SECOND SUPPLEMENTAL AGREEMENT OF TRUST between CITY OF VIRGINIA BEACH, VIRGINIA and U.S. BANK NATIONAL ASSOCIATION, as Trustee Dated as of November 1, 2010 DRAFT 9/29/10 TABLE OF CONTENTS ARTICLE I SECOND SUPPLEMENTAL AGREEMENT Section 2.101. Authorization of Second Supplemental Agreement...............................................1 Section2.102. Definitions...............................................................................................................2 Section 2.103. Reference to Articles and Sections.........................................................................3 ARTICLE II AUTHORIZATION, DETAILS AND FORM OF SERIES 2010 BONDS Section 2.201. Authorization of Series 2010 Bonds.......................................................................3 Section 2.202. Details of Series 2010 Bonds..................................................................................3 Section 2.203. Form of Series 2010 Bonds.....................................................................................5 Section 2.204. Securities Depository Provisions............................................................................5 Section2.205. FCegistrar..................................................................................................................6 Section 2.206. Delivery of Series 2010 Bonds...............................................................................6 ARTICLE III REDEMPTION OF SERIES 2010 BONDS Section 2.301. Redemption Dates and Prices.................................................................................6 Section 2.302. Selection of Series 2010 Bonds for Redemption....................................................8 Section 2.303. Notice of Redemption.............................................................................................9 ARTICLE IV APPLICATION OF PROCEEDS OF SERIES 2010 BONDS Section 2.401. Application of Proceeds of Series 2010 Bonds and Related Amounts...................9 ARTICLE V FUNDS AND ACCOUNTS Section 2.501. 2:010 Project Account............................................................................................10 Section 2.502. Series 2010 Debt Service Reserve Account..........................................................10 Section 2.503. Refunding of Series 2000 Bonds..........................................................................10 ARTICLE VI SECURITY FOR SERIES 2010 BONDS Section 2.601. Security for Series 2010 Bonds.............................................................................1 l ARTICLE VII ARBITRAGE REBATE FUND Section 2.701. Rebate Requirement..............................................................................................11 I DRAFT 9/29/10 Section 2.702. Calculation and Payment of Series 2010 Rebate Obligation................................1 l Section 2.703. Reports by Trustee................................................................................................12 ARTICLE VIII MISCELLANEOUS Section 2.801. Limitations on Use of Proceeds............................................................................12 Section 2.802. Limitation of Rights..............................................................................................13 Section2.803. Severability...........................................................................................................14 Section 2.804. Successors and Assigns.........................................................................................14 Section2.805. Applicable Law.....................................................................................................14 Section2.806. Counterparts..........................................................................................................14 Exhibit A-1 Form of Series 2010A-1 Bond Exhibit A-2 Form of Series 2010A-2 Bond Exhibit B Form of Series 2010B Bond ii DRAFT 9/29/1() THIS SECOND SUPPLEMENTAL AGREEMENT OF TRUST dated as of the 1st day of November, :2010 (the "Second Supplemental Agreement"), by and between the City of Virginia Beach, Virginia, a political subdivision of the Commonwealth of Virginia (the "City"), and U.S. Bank National Association, Richmond, Virginia, a national banking association organized under the laws of the United States of America, with a corporate trust office in Richmond, Virginia, as successor trustee to First Union National Bank (in such capacity, together with any successor in such capacity, herein called the "Trustee"), provides: WHEREAS, the City and First Union National Bank entered into an Agreement of Trust dated as of January 1, 2000 (the "Agreement of Trust"), to provide for financing improvements and extensions -to the System (as defined in the Agreement of Trust) by the issuance of bonds payable solely firom Pledged Revenues (as defined in the Agreement of Trust); WHEREAS, within the limitations of and in compliance with the Agreement of Trust, the City issued an initial series of Bonds under the Agreement of Trust in the aggregate principal amount of $10,000,000 (the "Series 2000 Bonds"), to finance the costs of expansion and improvements to the System; WHEREAS, within the limitations of and in compliance with the Agreement of Trust, the City has determined to issue additional Bonds under the Agreement of Trust in the aggregate principal amount of $ 'including the City's $ Storm Water Utility Revenue Bonds, Series 2010A-1 (Tax -Exempt) (the "Series 2010A-1 Bonds"), its $ Storm Water Utility Revenue Bonds, Series 201OA-2 (Taxable -Build America Bonds) (the "Series 201OA-2 Bonds"), and its $ Storm Water Utility Refunding Revenue Bonds, Series 2010B (Tax -Exempt) (the "Series 2010B Bonds") (collectively, the "Series 2010 Bonds"), to finance and refinance the. costs of improvements and expansions to the System, including the redemption of the City's outstanding Series 2000 Bonds, and to pay costs associated with ;issuing the Series 2010 Bonds; and WHEREAS, the City has taken all necessary action to make the Series 2010 Bonds, when authenticated by the Trustee and issued by the City, valid and binding limited obligations of the City and to constitute this Second Supplemental Agreement a valid and binding agreement authorizing and providing for the details of the Series 2010 Bonds; NOW THEREFORE, in consideration of the premises and the mutual covenants and agreements hereinafter contained, the parties hereto agree, as follows: ARTICLE I SECOND SUPPLEMENTAL AGREEMENT Section 2.101. Authorization of Second Supplemental Agreement. This Second Supplemental Agreement is authorized and executed by the City and delivered to the Trustee pursuant to and in accordance with Articles III and XII of the Agreement of Trust. All terms, covenants, conditions and agreements of the Agreement of Trust shall apply 1 DRAFT 9/29/10 with full force and effect to the Series 2010 Bonds and to the holders thereof, except as otherwise provided in this Second Supplemental Agreement. Section 2.102. Definitions. Except as otherwise amended or defined in this Second Supplemental Agreement, terms defined in the Agreement of Trust are used in this Second Supplemental Agreement with the meanings assigned to them in the Agreement of Trust. (a) Amended Definition. The following definition set forth in the Agreement of Trust shall be amended by deleting such definition in its entirety and in place thereof inserting the following: "Business Day" shall mean any day on which banking business is transacted, but not including a Saturday, Sunday or legal holiday, or any day on which banking institutions are authorized by law to close in Richmond, Virginia. (b) Added Definitions. In addition, the following words as used in this Second Supplemental Agreement shall have the following meanings unless a different meaning clearly appears from the context: "2010 Project" shall mean improvements to and expansions of the System financed with the proceeds of the Series 2010A-1 Bonds and the Series 2010A-2 Bonds. "Letter of Representations" shall mean the Blanket Letter of Representations dated June 17, 1996, from the City to the Securities Depository and any amendments thereto or successor agreements between the City and any successor Securities Depository, relating to a book -entry system to be maintained by the Securities Depository with respect to the Series 2010 Bonds. Notwithstanding any provision of the Agreement of Trust, including Article XII regarding amendments, the Trustee may enter into any such amendment or successor agreement without the consent of Bondholders. "Rebate Amount Certificate" shall have the meaning set forth in Section 2.701. "Registrar" shall mean the City Treasurer or any successors serving as such hereunder. "Second Supplemental Agreement" shall mean this Second Supplemental Agreement of Trust between the City and the Trustee, which supplements and amends the Agreement of Trust, as amended. "Securities Depository" shall mean The Depository Trust Company, a corporation organized and existing under the laws of the State of New York, and any other securities depository for the Series 2010 Bonds appointed pursuant to Section 2.203, and their successors. 2 DRAFT 9/29/10 "Series 2010 Bonds" shall mean, collectively, the Series 201OA-1 Bonds, the Series 201OA-2 Bonds and the Series 2010B Bonds, authorized to be issued pursuant to this Second Supplemental Agreement. "Series 2010 Debt Service Reserve Account" shall mean the Series 2010 Debt Service Reserve Account established in Section 2.502 of this Second Supplemental Agreement. "Series 2010 Debt Service Reserve Requirement" for the Series 2010 Bonds, or a subseries thereof, shall be an amount equal to $ , which is the least of (a) the maximum principal and interest due on such Series 2010 Bonds in the current or any future Fiscal Year, (b) 10% of the original stated principal amount of such Series 2010 Bonds (or 10% of the issue price of such Series 2010 Bonds if required by the Code) or (c) 125% of the average annual principal and interest due on such Series 2010 Bonds in the current and each future Fiscal Year. "Series 201OA-1 Bonds" shall mean the City's $ Storm Water Utility Revenue Bonds, Series 201OA-1 (Tax -Exempt). "Series 201 OA -2 Bonds" shall mean the City's $ Storm Water Utility Revenue Bonds, Series 2010A-2 (Taxable -Build America Bonds). "Series 2010B Bonds" shall mean the City's $ Storm Water Utility Refunding Revenue Bonds, Series 2010B (Tax -Exempt). Section 2.103. Reference to Articles and Sections. Unless otherwise indicated, all references herein to particular articles or sections are references to articles or sections of this Second Supplemental Agreement. ARTICLE II AUTHORIZATION, DETAILS AND FORM OF SERIES 2010 BONDS Section 2.201. Authorization of Series 2010 Bonds. There are hereby authorized to be issued the Series 2010A-1 Bonds, the Series 201OA-2 Bonds and the Series 2010B Bonds in the aggregate principal amount of $ to (a) finance the Cost of the 2010 Project, which is hereby authorized, (b) redeem the outstanding Series 2000 Bonds and (c) finance costs associated with issuing the Series 2010 Bonds. The Series 2010 Bonds shall be issued pursuant to the Agreement of Trust and this Second Supplemental Agreement. Section 2.202. Details of Series 2010 Bonds. (a) The Series 201OA-1 Bonds shall be designated "Storm Water Utility Revenue Bonds, Series 201OA-1 (Tax -Exempt)," shall be dated the date of their issuance and delivery, shall be issuable only as fully registered bonds in denominations of $5,000 and multiples thereof, shall be numbered R(2010A-1)-1 upward and shall bear interest at the rates, payable 3 DRAFT 9/29/10 semiannually on May 15 and November 15, beginning May 15, 2011, until their final payment or maturity, and shall mature on November 15 in the years and the amounts, set forth as follows: Principal Interest Principal Interest Maturity Amount Rate Maturi Amount Rate (b) The Series 201OA-2 Bonds shall be designated "Storm Water Utility Revenue Bonds, Series 201OA-2 (Taxable -Build America Bonds)," shall be dated the date of their issuance and delivery, shall be issuable only as fully registered bonds in denominations of $5,000 and multiples thereof, shall be numbered R(2010A-2)-1 upward and shall bear interest at the rates, payable semiannually on May 15 and November 15, beginning May 15, 2011, until their final payment or maturity, and shall mature on November 15 in the years and the amounts, set forth as follows: Principal Interest Principal Interest Maturity Amount Rate Maturity Amount Rate (c) The Series 2010B Bonds shall be designated "Storm Water Utility Refunding Revenue Bonds, Series 2010B (Tax -Exempt)," shall be dated the date of their issuance and delivery, shall be issuable only as fully registered bonds in denominations of $5,000 and multiples thereof, shall be numbered RB -1 upward and shall bear interest at the rates, payable semiannually on May 15 and November 15, beginning May 15, 2011, until their final payment or maturity, and shall mature on November 15 in the years and the amounts, set forth as follows: Principal Interest Principal Interest Maturity Amount Rate Maturi Amount Rate Each Series 2010 Bond shall bear interest (a) from its date, if such Series 2010 Bond is authenticated prior to the first interest payment date, or (b) otherwise from the interest payment date that is, or immediately precedes, the date on which such Series 2010 Bond is authenticated; provided, however, that if at the time of authentication of any Series 2010 Bond payment of interest is in default, such Series 2010 Bond shall bear interest from the date to which interest has been paid. 4 DRAFT 9/29/10 Principal of and premium, if any, on the Series 2010 Bonds shall be payable to the registered owners upon the surrender of Series 2010 Bonds at the office of the Registrar. Interest on the Series 2010 Bonds shall be payable by check or draft mailed to the registered owners at their addresses as they appear on the fifteenth day of the month preceding the interest payment date on the registration books kept by the Registrar; provided, however, if the Series 2010 Bonds are registered in the name of a Securities Depository or its nominee as registered owner or at the option of a registered owner of at least $1,000,000 of Series 2010 Bonds, payment shall be made by wire transfer pursuant to the wire instructions received by the Registrar from such registered owner. Principal, premium, if any, and interest shall be payable in lawful money of the United States of America. Section 2.203. Form of Series 2010 Bonds. The Series 2010 Bonds shall be in substantially the forms set forth in Exhibit A-1, Exhibit A-2 and. Exhibit B. with such appropriate variations, omissions and insertions as are permitted or required by the Agreement of Trust and this Second Supplemental Agreement. Section 2.204. Securities Depository Provisions. Initially, one Series 2010 Bond certificate for each maturity of the Series 2010 Bonds will be issued and registered to the Securities Depository, or its nominee. The City has entered into a Letter of Representations relating to a book -entry system to be maintained by the Securities Depository with respect to the Series 2010 Bonds. In the event that (a) the Securities Depository determines not to continue to act as a securities depository for the Series 2010 Bonds by giving notice to the Registrar and the City discharging its responsibilities hereunder or (b) the City in its sole discretion determines (1) that beneficial owners of Series 2010 Bonds shall be able to obtain certificated Series 2010 Bonds or (2) to select a new Securities Depository, then the City shall attempt to locate another qualified securities depository to serve as Securities Depository or authenticate and deliver certificated Series 2010 Bonds to the beneficial owners or to the Securities Depository participants on behalf of beneficial owners substantially in the forms provided for in Exhibit A-1, Exhibit A-2 and Exhibit B; provided, however, that such form shall provide for interest on the Series 2010 Bonds to be payable (i) from its date, if it is authenticated prior to May 15, 2011, or (ii) otherwise from the May 15 or November 15 that is, or immediately precedes, the date on which it is authenticated (unless payment of interest thereon is in default, in which case interest on such Series 2010 Bonds shall be payable from the date to which interest has been paid). In delivering certificated Series 2010 Bonds, the Registrar shall be entitled to rely conclusively on the records of the Securities Depository as to the beneficial owners or the records of the Securities Depository participants acting on behalf of beneficial owners. Such certificated Series 2010 Bonds will be registrable, transferable and exchangeable as set forth in Section 204 of the Agreement of Trust. So long as there is a Securities Depository for the Series 2010 Bonds (A) it or its nominee shall be the registered owner of the Series 2010 Bonds, (B) notwithstanding anything to the k, DRAFT 9/29/10 contrary in this Second Supplemental Agreement, determinations of persons entitled to payment of principal, premium, if any, and interest, transfers of ownership and exchanges, and receipt of notices shall be the responsibility of the Securities Depository and shall be effected pursuant to rules and procedures established by such Securities Depository, (C) the City and the Registrar shall not be responsible or liable for maintaining, supervising or reviewing the records maintained by the Securities Depository, its participants or persons acting through such participants, (D) references in this Second Supplemental Agreement to registered owners of the Series 2010 Bonds shall mean such Securities Depository or its nominee and shall not mean the beneficial owners of the Series 2010 Bonds and (E) in the event of any inconsistency between the provisions of this Second Supplemental Agreement, other than those set forth in this paragraph and the preceding paragraph, and the provisions of the Letter of Representations, such provisions of the Letter of Representations shall control. Section 2.205. Regis The selection of the City Treasurer as Registrar is approved. Section 2.206. Delivery of Series 2010 Bonds. The Registrar shall authenticate and deliver the Series 2010 Bonds when there shall have been delivered to the Registrar a Request for Authentication stating that there have been filed with or delivered to the City Clerk all items required by Section 304 of the Agreement of Trust. ARTICLE III REDEMPTION OF SERIES 2010 BONDS Section 2.301. Redemption Dates and Prices. The Series 2010 Bonds may not be called for redemption by the City except as provided below: (a) Optional Redemption. Series 201OA-1 Bonds maturing on or before November 15, 2020, are not subject to optional redemption prior to their stated maturities. Series 2010A-1 Bonds maturing on or after November 15, 2021, are subject to redemption at the option of the City beginning on November 15, 2020, in whole or in part at any time (in any multiple of $5,000), without premium, upon payment of the principal amount of the Series 201OA-1 Bonds so redeemed plus interest accrued to the redemption date. Except in accordance with the extraordinary optional redemption provisions described below, Series 201OA-2 Bonds maturing on or before November 15, 2020, are not subject to optional redemption prior to their stated maturities. Series 201OA-2 Bonds maturing on or after November 15, 2021, are subject to redemption at the option of the City beginning on November 15, 2020, in whole or in part at any time (in any multiple of $5,000), without premium, upon payment of the principal amount of the Series 2010A-2 Bonds so redeemed plus interest accrued to the redemption date. 0 DRAFT 9/29/10 Series 2010B Bonds maturing on or before November 15, 2020, are not subject to optional redemption prior to their stated maturities. Series 2010B Bonds maturing on or after November 15, 2021, are subject to redemption at the option of the City beginning on November 15, 2020, in whole or in part at any time (in any multiple of $5,000), without premium, upon payment of the principal amount of the Series 2010B Bonds so redeemed plus interest accrued to the redemption date. (b) Extraordinary Optional Redemption. Series 2010A-2 Bonds are subject to redemption at the option of the City on any date prior to their maturity, in whole or in part (in any multiple of $5,000), upon the occurrence of an Extraordinary BAB Event (as defined below), at a redemption price equal to the greater of. (i) 100% of the principal amount of the Series 2010A-2 Bonds to be redeemed, and (ii) the sum of the present value of the remaining scheduled payments of principal and interest to the maturity date of the Series 2010A-2 Bonds to be redeemed, not including any portion of those payments of interest accrued and unpaid as of the date on which the Series 2010A-2 Bonds are to be redeemed, discounted to the date on which the Series 2010A-2 Bonds are to be redeemed on a semi-annual basis, assuming a 360 -day year consisting of twelve 30 -day months, at the Treasury Rate (as defined below), plus 100 basis points, plus, in each case, accrued interest on the Series 2010A-2 Bonds to be redeemed to the redemption date. An 'Extraordinary BAB Event" will have occurred if a material adverse change has occurred to Section 54AA or 6431 of the Code (as such Sections were added by Section 1531 of the American Recovery and Reinvestment Act, pertaining to 'Build America Bonds") or there is any guidance published by the Internal Revenue Service or the United States Treasury with respect to such Sections or any other determination by the Internal Revenue Service or the United States Treasury (which determination is not the result of any act or omission by the City to satisfy the requirements to qualify to receive the Federal Subsidy (as hereinafter defined) pursuant to which the subsidy payment from the United States Treasury) pursuant to which the subsidy payment: from the United States Treasury equal to 35% of the interest payable on the Series 2010A-2 Bonds (the "Federal Subsidy") is reduced or eliminated. The "Treasury Rate" means, with respect to any redemption date for a particular Series 2010A-2 Bond, the yield to maturity as of such redemption date of United States Treasury securities with a constant maturity excluding inflation indexed securities (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two business days prior to the redemption date or, if such Statistical Release is no longer published, any publicly available source of similar market data) most nearly equal to the period from the redemption date to the maturity date of such Series 2010A-2 Bond to be redeemed; provided, however, that if the period from the redemption date to such maturity date is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used. (c) Mandatory Redemption. [Series 2010A-1 Bonds maturing on November 15, 20 , are required to be redeemed on November 15 in years and amounts upon payment of 100% of the principal amount thereof plus interest accrued to the redemption date, as follows: 7 DRAFT 9/29/10 Year Amount Series 201OA-2 Bonds maturing on November 15, 20 , are required to be redeemed on November 15, in years and amounts upon payment of 100% of the principal amount thereof plus interest accrued to the redemption date, as follows: Year Amount Series 2010B Bonds maturing on November 15, 20_, are required to be redeemed on November 15, in years and amounts upon payment of 100% of the principal amount thereof plus interest accrued to the redemption date, as follows: Year Amount The amount of Series 2010 Bonds to be redeemed pursuant to this subsection may be reduced in accordance with the provisions of Section 605 of the Agreement of Trust.] Section 2.302. Selection of Series 2010 Bonds for Redemption. If less than all of the Series 2010 Bonds of a series are called for redemption, the Series 2010 Bonds of such series to be redeemed shall be selected by the City's Director of Finance in such a manner as he or she may determine to be in the best interest of the City. If less than all of the Series 201OA-1 Bonds or Series 2010B Bonds of a particular maturity of such series are called for redemption, the bonds to be redeemed shall be selected by DTC or any successor securities depository pursuant to its rules and procedures or, if the book - entry system is discontinued, by the Registrar by lot in such manner as the Registrar in its discretion may determine. If less than all of the Series 201OA-2 Bonds of a particular maturity are called for redemption, the particular Series 201OA-2 Bonds to be redeemed will be selected on a pro -rata basis. With respect to such Series 201OA-2 Bonds called for redemption, "pro rata" is determined, in connection with any mandatory sinking fund redemption or any optional 0 DRAFT 9/29/10 redemption in part, by multiplying the principal amount of such maturity to be redeemed on the applicable redemption date by a fraction, the numerator of which is equal to the principal amount of the Series 2010A-2 Bond of such maturity owned by the registered owner, and the denominator of which is equal to the total amount of the Series 2010A-2 Bonds of such maturity then outstanding, immediately prior to such redemption date, and then rounding the product down to the next lower integral multiple of $5,000; provided that the portion of any Series 2010A-2 Bonds to be redeemed are required to be in authorized denominations and all Series 2010A-2 Bonds of a maturity to remain- outstanding following any redemption are required to be in authorized denominations. Notwithstanding the foregoing, if the Series 2010A-2 Bonds are in book -entry form at the time of such redemption, the City will instruct DTC to instruct the DTC participants to select the specific Series 2010A-2 Bonds for redemption by lot within maturities among Bondholders, and the City shall not have any responsibility to ensure that DTC or the DTC participants properly select such Series 2010A-2 Bonds for redemption. The portion of any Series 2010 Bond to be redeemed shall be in a minimum principal amount of $5,000 or some multiple thereof. In selecting Series 2010 Bonds for redemption, each Series 2010 Bond shall be considered as representing that number of Series 2010 Bonds which is obtained by dividing the principal amount of such Series 2010 Bond by $5,000. If a portion of a Series 2010 Bond shall be called for redemption, a new Series 2010 Bond in principal amount equal to the unredeemed portion thereof shall be issued to the registered owner upon the surrender thereo E Section 2.303. Notice of Redemption. Notice of redemption of Series 2010 Bonds shall be given in the manner set forth in Section 402 of the Agreement of Trust. ARTICLE IV APPLICATION OF PROCEEDS OF SERIES 2010 BONDS Section 2.401. Application of Proceeds of Series 2010 Bonds and Related Amounts. Proceeds of the Series 2010 Bonds in the amount of $ [together with $ in funds from the Series 2000 Debt Service Reserve Account and $ in City funds,] shall be applied by the City Treasurer as follows: (a) $ in proceeds of the Series 2010A-1 Bonds and $ in proceeds of the Series 20110A-2 Bonds shall be deposited in the 2010 Project Account in the Construction Fund to be used to pay the Cost of the 2010 Project. (b) $ in proceeds of the Series 2010A-1 Bonds, $ in proceeds of the Series 201 OA -2 Bonds, and $ in proceeds of the Series 2010B Bonds shall be deposited in the Series 2010 Project Account to be used to pay costs of issuance of the Series 2010 Bonds. L9 DRAFT 9/29/10 (c) Proceeds of the Series 2010B Bonds in an amount not less than $ [, plus $ in funds transferred from the Series 2000 Debt Service Reserve Account, plus $ in City funds,] shall be deposited by the City in a special refunding expense account, the Interest Account and an escrow account, all as provided in Section 306 of the Agreement of Trust, to redeem the outstanding Series 2000 Bonds. (d) (i) [$ in City funds shall be deposited in the Series 2010A Debt Service Reserve Account of the Debt Service Reserve Fund.] (ii) [$ in funds transferred from the Series 2000 Debt Service Reserve Account, [plus $ in City funds,] shall be deposited in the Series 2010B Debt Service Reserve Account of the Debt Service Reserve Fund.] ARTICLE V FUNDS AND ACCOUNTS Section 2.501. 2010 Project Account. There shall be established within the Construction Fund a special account entitled "2010 Project Account." Portions of the proceeds of the Series 2010 Bonds specified in Section 2.401(a) and (b) above shall be deposited in the 2010 Project Account. Money in the 2010 Project Account shall be used to pay Costs, including Costs of the 2010 Project and costs of issuance of the Series 2010 Bonds, as evidenced by the requisitions provided by an Authorized Representative of Public Utilities to the Director of Finance in accordance with the provisions of Section 503 of the Agreement of Trust. Any balance remaining in the 2010 Project Account upon completion of the 2010 Project shall be- disposed of in accordance with the provisions of Section 504 of the Agreement of Trust. Section 2.502. Series 2010 Debt Service Reserve Account. There shall be established within the Debt Service Reserve Fund special accounts entitled the "Series 2010A Debt Service Reserve Account" and the "Series 2010B Debt Service Reserve Account" (collectively, the "Series 2010 Debt Service Reserve Account"), which will be funded as set forth in Section 2.401(d). Money in the Series 2010 Debt Service Reserve Account shall be used in accordance with the provisions of Section 607 of the Agreement of Trust. Section 2.503. Refunding of Series 2000 Bonds. There shall be established a special refunding expense account pursuant to Section 306(a)(1) of the Agreement of Trust and an escrow account pursuant to Section 306(a)(3) of the Agreement of Trust and the moneys deposited into such accounts and into the Interest Account in the Bond Fund pursuant to Section 306(a)(2) of the Agreement of Trust shall be used to redeem the outstanding Series 2000 Bonds in accordance with Section 306 of the Agreement of Trust on November [ 16], 2010, the date hereby designated as the redemption date for the Series 2000 Bonds to be redeemed. The Registrar is hereby directed to call the Series 2000 Bonds to be redeemed for optional redemption on such date. 10 DRAFT 9/29/10, ARTICLE VI SECURITY FOR SERIES 2010 BONDS Section 2.601. Security for Series 2010 Bonds. The Series 2010 Bonds shall be equally and ratably secured under the Agreement of Trust with the Outstanding Bonds of any other series issued pursuant to Article III of the Agreement of Trust, without preference, priority or distinction of any Bonds over any other Bonds, as provided in the Agreement of Trust, other than any Subordinate Debt. ARTICLE VII ARBITRAGE REBATE FUND Section 2..701. Rebate Requirement. Except with respect to earnings on funds and accounts qualifying for exceptions to the rebate requirement of Section 148 of the Code, the City shall pay the rebate obligations under the Code (the "Rebate Amount") to the United States of America, as and when due, in accordance with Section 148(f) of the Code, as provided in this Article, and shall retain records of all such determinations until six years after final payment of the Series 2010 Bonds. Section 2.702. Calculation and Payment of Series 2010 Rebate Obligation. (a) The City selects November 15 as the end of the bond year with respect to the Series 2010 Bonds pursuant to Treasury Regulations Section 1.148-1. (to) Within 30 days after the initial installment computation date, which is the last day of the fifth bond year (November 15, 2015), unless such date is changed by the City prior to the date that any amount with respect to the Series 2010 Bonds is paid or required to be paid to the United States of America as required by Section 148 of the Code, and at least once every five years thereafter, the City shall cause the Rebate Amount to be computed. Prior to any payment of the Rebate Amount to the United States of America as required by Section 148 of the Code. such computation (the "Rebate Amount Certificate") setting forth the Rebate Amount shall be prepared or approved by (1) a person with experience in matters of governmental accounting for Federal income tax purposes, (2) a bona fide arbitrage rebate calculation reporting service or (3) Bond Counsel. A copy of each such Rebate Amount Certificate shall be filed in the records of the City and with the Trustee. (c) No later than 60 days after the initial installment computation date, the City shall pay to the United States of America at least 90% of the Rebate Amount as set forth in the Rebate Amount Certificate prepared with respect to such installment computation date. At least once on or before 60 days after the installment computation date that is the fifth anniversary of the initial installment computation date and on or before 60 days every fifth anniversary date thereafter until final payment of the Series 2010. Bonds, the City shall pay to the United States of America not less than the amount, if any, by -which 90% of the Rebate Amount set forth in the 11 DRAFT 9/29/10 most recent Rebate Amount Certificate exceeds the aggregate of all such payments theretofore made to the United States of America pursuant to this Section. On or before 60 days after final payment of the Series 2010 Bonds, the City shall pay to the United States of America the amount, if any, by which 100% of the Rebate Amount set forth in the Rebate Amount Certificate with respect to the date of final payment of the Series 2010 Bonds exceeds the aggregate of all payments theretofore made pursuant to this Section. All such payments shall be made from any legally available moneys of the City. (d) Notwithstanding any provision of this Article to the contrary, no such calculation or payment shall be made if the City receives and delivers to the Trustee an opinion of Bond Counsel to the effect that (1) such payment is not required under the Code in order to prevent the Series 2010 Bonds from becoming "arbitrage bonds" within the meaning of Section 148 of the Code or (2) such payment should be calculated and paid on some alternative basis under the Code, and the City complies with such alternative basis. Section 2.703. Reports by Trustee. The Trustee shall provide the City within 10 days after each November 15 and within 10 days after the final payment of the Series 2010 Bonds with such reports and information with respect to earnings of amounts held by it under the Agreement of Trust and this Second Supplemental Agreement as may be requested by the City in order to comply with the provisions of this Article. ARTICLE VIII MISCELLANEOUS Section 2.801. Limitations on Use of Proceeds. The City covenants with the holders of the Series 2010 Bonds as follows: (a) There are no Prior Bonds currently outstanding. (b) The City shall not take or omit to take any action or approve the Trustee's taking any action or making any investment or use of the proceeds of any Series 2010 Bonds (including failure to spend the same with due diligence) the taking or omission of which would cause the Series 2010 Bonds to be "arbitrage bonds" within the meaning of Section 148 of the Code, including participating in any issue of obligations that would cause the Series 2010 Bonds to be part of an "issue" of obligations that are arbitrage bonds, within the meaning of Treasury Regulations Section 1.148-10 or successor regulation, or otherwise cause interest on the Series 2010A-1 Bonds or the Series 2010B Bonds to be includable in the gross income of the registered owners under existing law. Without limiting the generality of the foregoing, the City shall comply with any provision of law that may require the City at- any time to rebate to the United States of America any part of the earnings derived from the investment of gross proceeds of the Series 2010 Bonds. 12 DRAFT 9/29/10 (b) Barring unforeseen circumstances, the City shall not approve the use of the proceeds from the sale of any Series 2010 Bonds otherwise than in accordance with the City's "non -arbitrage" certificate or certificates delivered immediately prior to the issuance of the Series 2010 Bonds. (c) The City shall not permit the proceeds of the Series 2010 Bonds to be used in any manner that would result in either (1) 5% or more of such proceeds or the facilities being financed or refinanced with such proceeds being considered as having been used in any trade or business carried on by any person other than a governmental unit as provided in Section 141(b) of the Code, (2) 5% or more of such proceeds or the facilities being financed or refinanced with such proceeds being used with respect to any "output facility" (other than a facility for the furnishing of water) within the meaning of Section 141(b)(4) of the Code, or (3) 5% or more of such proceeds or the facilities being financed or refinanced with such proceeds being considered as having been used directly or indirectly to make or finance loans to any person other than a governmental unit, as provided in Section 141(c) of the Code. (d) The City shall not take any other action that would adversely affect, and shall take all action within its power necessary to maintain, the exclusion of interest on all Series 201OA-1 Bonds and Series 2010B Bonds from gross income for Federal income taxation purposes; provided, however, that if the City receives an opinion of Bond Counsel that compliance with any such covenant is not required to prevent the interest on the Series 201OA-1 Bonds or the Series 2010B Bonds from being includable in the gross income of the registered owners thereof under existing law, the City need not comply with such restriction. (e) The City shall not take or omit to take any action which would cause the Series 201OA-2 Bonds to fail to qualify as a "Build America Bond" under Section 54AA(g) of the Code, including, without limitation, any action that would (i) cause the Series 201OA-2 Bonds to fail to qualify as bonds the interest on which would (but for Section 54AA(g)) be excludable from gross income for federal income tax purposes under Section 103 of the Code, (ii) cause less than 100% of the excess of (A) the available project proceeds (as defined in Section 54A of the Code to mean sale proceeds of such issue less not more than two percent of such proceeds used to pay issuance costs plus investment proceeds thereon), over (B) the amounts in a reasonably required reserve fund (within the meaning of Section 150(a)(3) of the Code) with respect to such issue, to be used for capital expenditures, or (iii) cause the Series 2010A-2 Bonds to be "arbitrage bonds" within the meaning of Section 148 of the Code. Section 2.802. Limitation of Rights. With the exception of rights herein expressly conferred, nothing expressed or mentioned in or to be implied from this Second Supplemental Agreement or the Series 2010 Bonds is intended or shall be construed to give to any person other than the parties hereto and the holders of Series 2010 :Bonds any legal or equitable right, remedy or claim under or in respect to this Second Supplemental Agreement or any covenants, conditions and agreements herein contained since this Second Supplemental Agreement and all of the covenants, conditions and agreements hereof are intended to be and are for the sole and exclusive benefit of the parties hereto and the holders of Series 2010 Bonds as herein provided. 13 DRAFT 9/29/10 Section 2.803. Severability. If any provision of this Second Supplemental Agreement shall be held invalid by any court of competent jurisdiction, such holding shall not invalidate any other provision hereof and this Second Supplemental Agreement shall be construed and enforced as if such illegal provision had not been contained herein. Section 2.804. Successors and Assigns. This Second Supplemental Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. Section 2.805. Applicable Law. This Second Supplemental Agreement shall be governed by the applicable laws of the Commonwealth of Virginia. Section 2.806. Counterparts. This Second Supplemental Agreement may be executed in several counterparts, each of which shall be an original and all of which together shall constitute but one and the same instrument. [Signature page follows] 14 DRAFT 9/29/10 IN WITNESS WHEREOF, the City and the Trustee have caused this Second Supplemental Agreement to be executed in their respective corporate names as of the date first above written. CITY OF VIRGINIA BEACH, VIRGINIA By: City Manager U.S. BANK NATIONAL ASSOCIATION, as successor Trustee By: Trust Officer 15 DRAFT 9/29/10 EXHIBIT A-1 Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the issuer or its agent for registration of transfer, exchange, or payment, and any certificate is registered in the name of Cede & Co., or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein. REGISTERED REGISTERED R(2010A-1)- $ UNITED STATES OF AMERICA COMMONWEALTH OF VIRGINIA CITY OF VIRGINIA BEACH, VIRGINIA Storm Water Utility Revenue Bond Series 2010A-1 (Tax -Exempt) Interest Rate Maturity Date Dated Date CUSIP REGISTERED OWNER: CEDE & CO. Ia�0117A11:V-ale)OV" DOLLARS The City of Virginia Beach, Virginia (the "City"), for value received, hereby promises to pay upon surrender hereof solely from the source and as hereinafter provided, to the registered owner hereof, or registered assigns or legal representative, the principal sum stated above on the maturity date stated above, subject to prior redemption as hereinafter provided, and to pay, solely from such source, interest hereon semiannually on each May 15 and November 15, beginning May 15, 2011, at the annual rate stated above, calculated on the basis of a 360 -day year of twelve 30 -day months. Interest is payable (a) from the dated date stated above, if this bond is authenticated prior to May 15, 2011, or (b) otherwise from the May 15 or November 15 that is, or immediately precedes, the date on which this bond is authenticated (unless payment of interest hereon is in default, in which case this bond shall bear interest from the date to which interest has been paid). Interest is payable by check or draft mailed to the registered owner hereof at its address as it appears on the fifteenth day of the month preceding each interest payment date on registration books kept by the City Treasurer, who has been appointed paying agent and registrar (the "Registrar"); provided, however, that if the Bonds, as hereinafter defined, are registered in the name of a securities depository or its nominee as registered owner or at the option of a A-1-1 DRAFT 9/29/10 registered owner of at least $1,000,000 of Bonds, payment will be made by wire transfer pursuant to the most recent wire instructions received by the Registrar from such registered owner. Principal, premium, if any, and interest are payable in lawful money of the United States of America. Notwithstanding any other provision hereof, this bond is subject to book -entry form maintained by DTC, and the payment of principal, premium, if any, and interest, the providing of notices and other matters shall be made as described in the City's Letter of Representations to DTC. This bond is one of an issue of $ Storm Water Utility Revenue Bonds, Series 2010A-1 (Tax -Exempt) (the "Bonds"), of like date and tenor, except -as to number, denomination, rate of interest, privilege of redemption and maturity. The Bonds are issued under an Agreement of Trust dated as of January 1, 2000, between the City and U.S. Bank National Association, as successor trustee (the "Trustee"), as supplemented by a First Supplemental Agreement of Trust dated as of January 1, 2000, and as further supplemented by a Second Supplemental Agreement of Trust dated as of November 1, 2010 (collectively, the "Agreement of Trust"), and are equally and ratably secured on a parity as to the pledge of Pledged Revenues (as defined in the Agreement of Trust) with the Parity Obligations (as defined in the Agreement of Trust). Reference is hereby made to the Agreement of Trust for a description of the provisions, among others, with respect to the nature and extent of the security, the rights, duties and obligations of the City and the Trustee, the rights of the holders of the Bonds and the terms upon which the Bonds are issued and secured. Additional bonds secured by a pledge of Pledged Revenues on a parity with the Bonds and the Parity Bonds may be issued under the terms and conditions set forth in the Agreement of Trust. Subordinated Debt, as defined in the Agreement of Trust, may be issued under the terms and conditions set forth in the Agreement of Trust. The Bonds and the premium, if any, and the interest thereon are limited obligations of the City payable solely from Pledged Revenues, except to the extent payable from the proceeds of the Bonds, income from investments, certain reserves and proceeds of insurance, which Pledged Revenues and other moneys have been pledged as described in the Agreement of Trust to secure payment thereof. The Bonds and the premium, if any, and the interest thereon shall not be deemed to constitute a pledge of the faith and credit of the Commonwealth of Virginia or any political subdivision thereof, including the City. Neither the Commonwealth of Virginia nor any political subdivision thereof, including the City, shall be obligated to pay the principal of or premium, if any, or interest on the Bonds or other costs incident thereto except from Pledged Revenues and other moneys pledged therefor, and neither the faith and credit nor the taxing, power of the Commonwealth of Virginia or any political subdivision thereof, including the City, is pledged to the payment of the principal of or premium, if any, or interest on the Bonds or other costs incident thereto. The Bonds may not be called for redemption by the City except as provided herein and in the Agreement of Trust. Bonds maturing on or before November 15, 2020, are not subject to optional redemption prior to their stated maturities. Bonds maturing on or after November 15, 2021, are subject to redemption at the option of the City beginning on November 15, 2020, in A-1-2 DRAFT 9/29/10 whole or in part at any time (in any multiple of $5,000), without premium, upon payment of the principal amount of the Bonds so redeemed plus interest accrued to the redemption date. Bonds maturing on November 15, 20 , are required to be redeemed prior to maturity in part in accordance with the sinking fund requirements of the Agreement of Trust on November 15 in years and amounts upon payment of 100% of the principal amount thereof plus interest accrued to the redemption date, as follows: Year Amount The amount of the Bonds to be redeemed in accordance with the sinking fund requirements of the Agreement of Trust may be reduced in accordance with the provisions of Section 605 of the Agreement of Trust. If less than all the Bonds are called for redemption, they shall be redeemed from maturities in such order as determined by the City. If less than all of the Bonds of any maturity are called for redemption, the Bonds to be redeemed shall be selected by DTC or any successor securities depository pursuant to its rules and procedures or, if the book -entry system is discontinued, shall be selected by the Registrar by lot in such manner as the Registrar in its discretion may determine. The portion of any Bond to be redeemed shall be in the principal amount of $5,000 or some multiple thereof. In selecting Bonds for redemption, each Bond shall be considered as representing that number of Bonds which is obtained by dividing the principal amount of such Bond by $5,000. If any of the Bonds or portions thereof are called for redemption, the Registrar shall send notice of the call for redemption, identifying the Bonds or portions thereof to be redeemed, not less than 30 nor more than 60 days prior to the redemption date, by facsimile, registered or certified mail or overnight express delivery, to the registered owner of the Bonds. Provided funds for their redemption are on deposit at the place of payment on the redemption date, all Bonds or portions thereof so called for redemption shall cease to bear interest on such date, shall no longer be secured by the Agreement of Trust and shall not be deemed to be Outstanding under the provisions of the Agreement of Trust. If a portion of this bond shall be called for redemption, a new Bond in principal amount equal to the unredeemed portion hereof will be issued to DTC or its nominee upon the surrender hereof, or if the book -entry system is discontinued, to the registered owners of the Bonds. The registered owner of this bond shall have no right to enforce the provisions of the Agreement of Trust or to institute action to enforce the covenants therein or to take any action with respect to any Event of Default under the Agreement of Trust or to institute, appear in or defend any suit or other proceedings with respect thereto, except as provided in the Agreement of Trust. Modifications or alterations of the Agreement of Trust, or of any supplement thereto, may be made only to the extent and in the circumstances permitted by the Agreement of Trust. A-1-3 DRAFT 9/29/10 The Bonds are issuable as registered bonds in the denomination of $5,000 and multiples thereof. Upon surrender for transfer or exchange of this bond at the office of the Registrar, together with an assignment duly executed by the registered owner or its duly authorized attorney or legal. representative in such form as shall be satisfactory to the Registrar, the City shall execute, and the Registrar shall authenticate and deliver in exchange, a new Bond or Bonds in the manner and subject to the limitations and conditions provided in the Agreement of Trust, having an equal aggregate principal amount, in authorized denominations, of the same series, form and maturity, bearing interest at the same rate and registered in the name or names as requested by the then registered owner hereof or its duly authorized attorney or legal representative. Any such exchange shall be at the expense of the City, except that the Registrar may charge the person requesting such exchange the amount of any tax or other governmental charge required to be paid with respect thereto. The Registrar shall treat the registered owner as the person exclusively entitled to payment of principal, premium, if any, and interest and the exercise of all other rights and powers of the owner, except that interest payments shall be made to the person shown as owner on the fifteenth clay of the month preceding each interest payment date. All acts, conditions and things required to happen, exist or be performed precedent to and in the issuance of this bond have happened, exist and have been performed. This bond shall not become obligatory for any purpose or be entitled to any security or benefit under the Agreement of Trust or be valid until the Registrar shall have executed the Certificate of Authentication appearing hereon and inserted the date of authentication hereon. A-1-4 DRAFT 9/29/10 IN WITNESS WHEREOF, the City of Virginia Beach, Virginia, has caused this bond to be signed by its Mayor, to be countersigned by its Clerk, its seal to be affixed hereto, and this bond to be dated the dated date stated above. COUNTERSIGNED: (SEAL) Clerk, City of Virginia Beach, Virginia CERTIFICATE OF AUTHENTICATION Date Authenticated: November , 2010 Mayor, City of Virginia Beach, Virginia This bond is one of the Bonds described in the within mentioned Agreement of Trust. CITY TREASURER, Registrar Lo A-1-5 Authorized Officer DRAFT 9/29/10 ASSIGNMENT FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) unto (please print or typewrite name and address, including zip code, of Transferee) PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF TRANSFEREE the within Bond and all rights thereunder, hereby irrevocably constituting and appointing , Attorney, to transfer said Bond on the books kept for the registration thereof, with full power of substitution in the premises. Dated: Signature Guaranteed NOTICE: Signature(s) must be guaranteed by an Eligible Guarantor Institution such as a Commercial Bank, Trust Company, Securities Broker/Dealer, Credit Union, or Savings Association who is a member of a medallion program approved by The Securities Transfer Association, Inc. (Signature of Registered Owner) NOTICE: The signature above must correspond with the name of the registered owner as it appears on the front of this bond in every particular, without alteration or enlargement or any change whatsoever. A-1-6 DRAFT 9/29/10 EXHIBIT A-2 Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the issuer or its agent for registration of transfer, exchange, or payment, and any certificate is registered in the name of Cede & Co., or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein. REGISTERED REGISTERED R(201 OA -2)- $ UNITED STATES OF AMERICA COMMONWEALTH OF VIRGINIA CITY OF VIRGINIA BEACH, VIRGINIA Storm Water Utility Revenue Bond Series 2010A-2 (Taxable -Build America Bond) Interest Rate Maturity Date Dated Date CUSIP REGISTERED OWNER: CEDE & CO. PRINCIPAL AMOUNT: The City of Virginia Beach, Virginia (the "City"), for value received, hereby promises to pay upon surrender hereof solely from the source and as hereinafter provided, to the registered owner hereof, or registered assigns or legal representative, the principal sum stated above on the maturity date stated above, subject to prior redemption as hereinafter provided, and to pay, solely from such source, interest hereon semiannually on each May 15 and November 15, beginning May 15, 2011, at the annual rate stated above, calculated on the basis of a 360 -day year of twelve 30 -day months. Interest is payable (a) from the dated date stated above, if this bond is authenticated prior to May 15, 2011, or (b) otherwise from the May 15 or November 15 that is, or immediately precedes, the date on which this bond is authenticated (unless payment of interest hereon is in default, in which case this bond shall bear interest from the date to which interest has been paid). Interest is payable by check or draft mailed to the registered owner hereof at its address as it appears on the fifteenth day of the month preceding each interest payment date on registration books kept by the City Treasurer, who has been appointed paying agent and registrar (the "Registrar"); provided, however, that if the Bonds, as hereinafter defined, are registered in the name of a securities depository or its nominee as registered owner or at the option of a A-2-1 DRAFT 9/29/10 registered owner of at least $1,000,000 of Bonds, payment will be made by wire transfer pursuant to the most recent wire instructions received by the Registrar from such registered owner. Principal, premium, if any, and interest are payable in lawful money of the United States of America. Notwithstanding any other provision hereof, this bond is subject to book -entry form maintained by DTC, and the payment of principal, premium, if any, and interest, the providing of notices and other matters shall be made as described in the City's Letter of Representations to DTC. This bond is one of an issue of $ Storm Water Utility Revenue Bonds, Series 2010A-2 (Taxable -Build America Bonds) (the "Bonds"), of like date and tenor, except as to number, denomination, rate of interest, privilege of redemption and maturity. The Bonds are issued under anAgreement of Trust dated as of January 1, 2000, between the City and U.S. Bank National Association, as successor trustee (the "Trustee"), as supplemented by a First Supplemental Agreement of Trust dated as of January 1, 2000, and as further supplemented by a Second Supplemental Agreement of Trust dated as of November 1, 2010 (collectively, the "Agreement of Trust"), and are equally and ratably secured on a parity as to the pledge of Pledged Revenues (as defined in the Agreement of Trust) with the Parity Obligations (as defined in the Agreement of Trust). Reference is hereby made to the Agreement of Trust for a description of the provisions, among others, with respect to the nature and extent of the security, the rights, duties and obligations of the City and the Trustee, the rights of the holders of the Bonds and the terms upon which the Bonds are issued and secured. Additional bonds secured by a pledge of Pledged Revenues on a parity with the Bonds and the Parity Bonds may be issued under the terms and conditions set forth in the Agreement of Trust. Subordinated Debt, as defined in the Agreement of Trust, may be issued under the terms and conditions set forth in the Agreement of Trust. The Bonds and the premium, if any, and the interest thereon are limited obligations of the City payable solely from Pledged Revenues, except to the extent payable from the proceeds of the Bonds, income from investments, certain reserves and proceeds of insurance, which Pledged Revenues and other moneys have been pledged as described in the Agreement of Trust to secure payment thereof. The Bonds and the premium, if any, and the interest thereon shall not be deemed to constitute a pledge of the faith and credit of the Commonwealth of Virginia or any political subdivision thereof, including the City. Neither the Commonwealth of Virginia nor any political subdivision thereof, including the City, shall be obligated to pay the principal of or premium, if any, or interest on the Bonds or other costs incident thereto except from Pledged Revenues and other moneys pledged therefor, and neither the faith and credit nor the taxing, power of the Commonwealth of Virginia or any political subdivision thereof, including the City, is pledged to the payment of the principal of or premium, if any, or interest on the Bonds or other costs incident thereto. The Bonds may not be called for redemption by the City except as provided herein and in the Agreement of Trust. Except in accordance with the extraordinary optional redemption provisions described below, Bonds maturing on or before November 15, 2020, are not subject to optional redemption prior to their stated maturities. Bonds maturing on or after November 15, A-2-2 DRAFT 9/29/10 2021, are subject to redemption at the option of the City beginning on November 15, 2020, in whole or in part at any time (in any multiple of $5,000), without premium, upon payment of the principal amount of the Bonds so redeemed plus interest accrued to the redemption date. Notwithstanding the foregoing, the Bonds are subject to redemption at the option of the City on any date prior to their maturity, in whole or in part (in any multiple of $5,000), upon the occurrence of an Extraordinary BAB Event (as defined below), at a redemption price equal to the greater of. (i) 100% of the principal amount of the Bonds to be redeemed, and (ii) the sum of the present value of the remaining scheduled payments of principal and interest to the maturity date of the Bonds to be redeemed, not including any portion of those payments of interest accrued and unpaid as of the date on which the Bonds are to be redeemed, discounted to the date on which the Bonds are to be redeemed on a semi-annual basis, assuming a 360 -day year consisting of twelve 30 -day months, at the Treasury Rate (as defined below), plus 100 basis points, plus, in each case, accrued interest on the Bonds to be redeemed to the redemption date. An "Extraordinary BAB Event" will have occurred if a material adverse change has occurred to Section 54AA or 6431 of the Code (as such Sections were added by Section 1531 of the American Recovery and Reinvestment Act, pertaining to 'Build America Bonds") or there is any guidance published by the Internal Revenue Service or the United States Treasury with respect to such Sections or any other determination by the Internal Revenue Service or the United States Treasury (which determination is not the result of any act or omission by the City to satisfy the requirements to qualify to receive the Federal Subsidy (as hereinafter defined) from the United States Treasury) pursuant to which the subsidy payment from the United States Treasury equal to 35% of the interest payable on the Bonds (the "Federal Subsidy") is reduced or eliminated. The "Treasury Rate" means, with respect to any redemption date for a particular Bond, the yield to maturity as of such redemption date of United States Treasury securities with a constant maturity excluding inflation indexed securities (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two business days prior to the redemption date or, if such Statistical Release is no longer published, any publicly available source of similar market data) most nearly equal to the period from the redemption date to the maturity date of such Bond to be redeemed; provided, however, that if the period from the redemption date to such maturity date is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used. Bonds maturing on November 15, 20 , are required to be redeemed prior to maturity in part in accordance with the sinking fund requirements of the Agreement of Trust on November 15 in years and amounts upon payment of 100% of the principal amount thereof plus interest accrued to the redemption date, as follows: Year Amount A-2-3 DRAFT 9/29/10 The amount of the Bonds to be redeemed in accordance with the sinking fund requirements of the Agreement of Trust may be reduced in accordance with the provisions of Section 605 of the Agreement of Trust. If less than all the Bonds are called for redemption, they shall be redeemed from maturities in such order as determined by the City. If less than all of the Bonds of any maturity are called for redemption, the Bonds to be redeemed shall be selected on a pro -rata basis. "Pro rata" is determined, in connection with any mandatory sinking fund redemption or any optional redemption in part, by multiplying the principal amount of such maturity to be redeemed on the applicable redemption date by a fraction, the numerator of which is equal to the principal amount of the Bond of such maturity owned by the registered owner, and the denominator of which is equal to the total amount of the Bonds of such maturity then outstanding immediately prior to such redemption date, and then rounding the product down to the next lower integral multiple of $5,000; provided that the portion of any Bonds to be redeemed are required to be in authorized denominations and all Bonds of a maturity to remain outstanding following any redemption are required to be in authorized denominations. Notwithstanding the foregoing, if the Bonds are in book -entry form at the time of such redemption, the City will instruct DTC to instruct the DTC participants to select the specific Bonds for redemption by lot within maturities among Bondholders, and the City shall not have any responsibility to ensure that DTC or the DTC participants properly select such Bonds for redemption. The portion of any Bond to be redeemed shall be in a minimum principal amount of $5,000 or some multiple thereof. In selecting Bonds for redemption, each Bond shall be considered as representing that number of Bonds which is obtained by dividing the principal amount of such Bond by $5,000. If any of the Bonds or portions thereof are called for redemption, the Registrar shall send notice of the call for redemption, identifying the Bonds or portions thereof to be redeemed, not less than 30 nor more than 60 days prior to the redemption date, by facsimile, registered or certified mail or overnight express delivery, to the registered owner of the Bonds. Provided funds for their redemption are on deposit at the place of payment on the redemption date, all Bonds or portions thereof so called for redemption shall cease to bear interest on such date, shall no longer be secured by the Agreement of Trust and shall not be deemed to be Outstanding under the provisions of the Agreement of Trust. If a portion of this bond shall be called for redemption, a new Bond in principal amount equal to the unredeemed portion hereof will be issued to DTC or its nominee upon the surrender hereof, or if the book -entry system is discontinued, to the registered owners of the Bonds. The registered owner of this bond shall have no right to enforce the provisions of the Agreement of Trust or to institute action to enforce the covenants therein or to take any action with respect to any Event of Default under the Agreement of Trust or to institute, appear in or defend any suit or other proceedings with respect thereto, except as provided in the Agreement of Trust. Modifications or alterations of the Agreement of Trust, or of any supplement thereto, may be made only to the extent and in the circumstances permitted by the Agreement of Trust. The Bonds are issuable as registered bonds in the denomination of $5,000 and multiples thereof. Upon surrender for transfer or exchange of this bond at the office of the Registrar, together with an assignment duly executed by the registered owner or its duly authorized A-2-4 DRAFT 9/29/10 attorney or legal representative in such form as shall be satisfactory to the Registrar, the City shall execute, and the Registrar shall authenticate and deliver in exchange, a new Bond or Bonds in the manner and subject to the limitations and conditions provided in the Agreement of Trust, having an equal aggregate principal amount, in authorized denominations, of the same series, form and maturity, bearing interest at the same rate and registered in the name or names as requested by the then registered owner hereof or its duly authorized attorney or legal representative. Any such exchange shall be at the expense of the City, except that the Registrar may charge the person requesting such exchange the amount of any tax or other governmental charge required to be paid with respect thereto. The Registrar shall treat the registered owner as the person exclusively entitled to payment of principal, premium, if any, and interest and the exercise of all oilier rights and powers of the owner, except that interest payments shall be made to the person shown as owner on the fifteenth day of the month preceding each interest payment date. All acts, conditions and things required to happen, exist or be performed precedent to and in the issuance of this bond have happened, exist and have been performed. This bond shall not become obligatory for any purpose or be entitled to any security or benefit under the Agreement of Trust or be valid until the Registrar shall have executed the Certificate of Authentication appearing hereon and inserted the date of authentication hereon. A-2-5 DRAFT 9/29/10 IN WITNESS WHEREOF, the City of Virginia Beach, Virginia, has caused this bond to be signed by its Mayor, to be countersigned by its Clerk, its seal to be affixed hereto, and this bond to be dated the dated date stated above. COUNTERSIGNED: (SEAL) Clerk, City of Virginia Beach, Virginia CERTIFICATE OF AUTHENTICATION Date Authenticated: November _, 2010 Mayor, City of Virginia Beach, Virginia This bond is one of the Bonds described in the within mentioned Agreement of Trust. CITY TREASURER, Registrar Authorized Officer DRAFT 9/29/10 ASSIGNMENT FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) unto (please print or typewrite name and address, including zip code, of Transferee) PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF TRANSFEREE the within Bond and all rights thereunder, hereby irrevocably constituting and appointing , Attorney, to transfer said Bond on the books kept for the registration thereof, with full power of substitution in the premises. Dated: Signature Guaranteed NOTICE: Signature(s) must be guaranteed by an Eligible Guarantor Institution such as a Commercial Bank, Trust Company, Securities Broker/Dealer, Credit Union, or Savings Association who is a member of a medallion program approved by The Securities Transfer Association, Inc. FIRW� (Signature of Registered Owner) NOTICE: The signature above must correspond with the name of the registered owner as it appears on the front of this bond in every particular, without alteration or enlargement or any change whatsoever. DRAFT 9/29/10 La "41- 30 Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the issuer or its agent for registration of transfer, exchange, or payment, and any certificate is registered in the name of Cede & Co., or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein. REGISTERED REGIS ERED RB- $ UNITED STATES OF AMERICA COMMONWEALTH OF VIRGINIA CITY OF VIRGINIA BEACH, VIRGINIA Storm Water Utility Refunding Revenue Bond Series 2010B (Tax -Exempt) Interest Rate Maturity Date Dated Date CUSIP REGISTERED OWNER: CEDE & CO. PRINCIPAL AMOUNT: DOLLARS The City of Virginia Beach, Virginia (the "City"), for value received, hereby promises to pay upon surrender hereof solely from the source and as hereinafter provided, to the registered owner hereof, or registered assigns or legal representative, the principal sum stated above on the maturity date stated above, subject to prior redemption as hereinafter provided, and to pay, solely from such source, interest hereon semiannually on each May 15 and November 15, beginning May 15, 2011, at: the annual rate stated above, calculated on the basis of a 360 -day year of twelve 30 -day months. Interest is payable (a) from the dated date stated above, if this bond is authenticated prior to May 15, 2011, or (b) otherwise from the May 15 or November 15 that is, or immediately precedes, the date on which this bond is authenticated (unless payment of interest hereon is in default, in which case this bond shall bear interest from the date to which interest has been paid). Interest is payable by check or draft mailed to the registered owner hereof at its address as it appears on the fifteenth day of the month preceding each interest payment date on registration books kept by the City Treasurer, who has been appointed paying agent and registrar (the "Registrar"); provided, however, that if the Bonds, as hereinafter defined, are registered in the name of a securities depository or its nominee as registered owner or at the option of a NNI DRAFT 9/29/10 registered owner of at least $1,000,000 of Bonds, payment will be made by wire transfer pursuant to the most recent wire instructions received by the Registrar from such registered owner. Principal, premium, if any, and interest are payable in lawful money of the United States of America. Notwithstanding any other provision hereof, this bond is subject to book -entry form maintained by DTC, and the payment of principal, premium, if any, and interest, the providing of notices and other matters shall be made as described in the City's Letter of Representations to DTC. This bond is one of an issue of $ Storm Water Utility Refunding Revenue Bonds, Series 2010B (Tax -Exempt) (the 'Bonds"), of like date and tenor, except as to number, denomination, rate of interest, privilege of redemption and maturity. The Bonds are issued under an Agreement of Trust dated as of January 1, 2000, between the City and U.S. Bank National Association, as successor trustee (the "Trustee"), as supplemented by a First Supplemental Agreement of Trust dated as of January 1, 2000, and as further supplemented by a Second Supplemental Agreement of Trust dated as of November 1, 2010 (collectively, the "Agreement of Trust"), and are equally and ratably secured on a parity as to the pledge of Pledged Revenues (as defined in the Agreement of Trust) with the Parity Obligations (as defined in the Agreement of Trust). Reference is hereby made to the Agreement of Trust for a description of the provisions, among others, with respect to the nature and extent of the security, the rights, duties and obligations of the City and the Trustee, the rights of the holders of the Bonds and the terms upon which the Bonds are issued and secured. Additional bonds secured by a pledge of Pledged Revenues on a parity with the Bonds and the Parity Bonds may be issued under the terms and conditions set forth in the Agreement of Trust. Subordinated Debt, as defined in the Agreement of Trust, may be issued under the terms and conditions set forth in the Agreement of Trust. The Bonds and the premium, if any, and the interest thereon are limited obligations of the City payable solely from Pledged Revenues, except to the extent payable from the proceeds of the Bonds, income from investments, certain reserves and proceeds of insurance, which Pledged Revenues and other moneys have been pledged as described in the Agreement of Trust to secure payment thereof. The Bonds and the premium, if any, and the interest thereon shall not be deemed to constitute a pledge of the faith and credit of the Commonwealth of Virginia or any political subdivision thereof, including the City. Neither the Commonwealth of Virginia nor any political subdivision thereof, including the City, shall be obligated to pay the principal of or premium, if any, or interest on the Bonds or other costs incident thereto except from Pledged Revenues and other moneys pledged therefor, and neither the faith and credit nor the taxing, power of the Commonwealth of Virginia or any political subdivision thereof, including the City, is pledged to the payment of the principal of or premium, if any, or interest on the Bonds or other costs incident thereto. The Bonds may not be called for redemption by the City except as provided herein and in the Agreement of Trust. Bonds maturing on or before November 15, 2020, are not subject to optional redemption prior to their stated maturities. Bonds maturing on or after November 15, 2021, are subject to redemption at the option of the City beginning on November 15, 2020, in DRAFT 9/29/10 whole or in part at any time (in any multiple of $5,000), without premium, upon payment of the principal amount of the Bonds so redeemed plus interest accrued to the redemption date. Bonds maturing on November 15, 20_, are required to be redeemed prior to maturity in part in accordance with the sinking fund requirements of the Agreement of Trust on November 15 in years and amounts upon payment of 100% of the principal amount thereof plus interest accrued to the redemption date, as follows: Year Amount The amount of the Bonds to be redeemed in accordance with the sinking fund requirements of the Agreement of Trust may be reduced in accordance with the provisions of Section 605 of the Agreement of Trust. If less than all the Bonds are called for redemption, they shall be redeemed from maturities in such order as determined by the City. If less than all of the Bonds of any maturity are called for redemption, the Bonds to be redeemed shall be selected by DTC or any successor securities depository pursuant to its rules and procedures or, if the book -entry system is discontinued, shall be selected by the Registrar by lot in such manner as the Registrar in its discretion may determine. The portion of any Bond to be redeemed shall be in the principal amount of $5,000 or some multiple thereof. In selecting Bonds for redemption, each Bond shall be considered as representing that number of Bonds which is obtained by dividing the principal amount of such Bond by $5,000. If any of the Bonds or portions thereof are called for redemption, the Registrar shall send notice of the call for redemption, identifying the Bonds or portions thereof to be redeemed, not less than 30 nor more than 60 days prior to the redemption date, by facsimile, registered or certified mail or overnight express delivery, to the registered owner of the Bonds. Provided funds for their redemption are on deposit at the place of payment on the redemption date, all Bonds or portions thereof so called for redemption shall cease to bear interest on such date, shall no longer be secured by the Agreement of Trust and shall not be deemed to be Outstanding under the provisions of the Agreement of Trust. If a portion of this bond shall be called for redemption, a new Bond in principal amount equal to the unredeemed portion hereof will be issued to DTC or its nominee upon the surrender hereof, or if the book -entry system is discontinued, to the registered owners of the Bonds. The registered owner of this bond shall have no right to enforce the provisions of the Agreement of Trust or to institute action to enforce the covenants therein or to take any action with respect to any Event of Default under the Agreement of Trust or to institute, appear in or defend any suit or other proceedings with respect thereto, except as provided in the Agreement of Trust. Modifications or alterations of the Agreement of Trust, or of any supplement thereto, may be made only to the extent and in the circumstances permitted by the Agreement of Trust. [: 3 DRAFT 9/29/10 The Bonds are issuable as registered bonds in the denomination of $5,000 and multiples thereof. Upon surrender for transfer or exchange of this bond at the office of the Registrar, together with an assignment duly executed by the registered owner or its duly authorized attorney or legal representative in such form as shall be satisfactory to the Registrar, the City shall execute, and the Registrar shall authenticate and deliver in exchange, a new Bond or Bonds in the manner and subject to the limitations and conditions provided in the Agreement of Trust, having an equal aggregate principal amount, in authorized denominations, of the same series, form and maturity, bearing interest at the same rate and registered in the name or names as requested by the then registered owner hereof or its duly authorized attorney or legal representative. Any such exchange shall be at the expense of the City, except that the Registrar may charge the person requesting such exchange the amount of any tax or other governmental charge required to be paid with respect thereto. The Registrar shall treat the registered owner as the person exclusively entitled to payment of principal, premium, if any, and interest and the exercise of all other rights and powers of the owner, except that interest payments shall be made to the person shown as owner on the fifteenth day of the month preceding each interest payment date. All acts, conditions and things required to happen, exist or be performed precedent to and in the issuance of this bond have happened, exist and have been performed. This bond shall not become obligatory for any purpose or be entitled to any security or benefit under the Agreement of Trust or be valid until the Registrar shall have executed the Certificate of Authentication appearing hereon and inserted the date of authentication hereon. DRAFT 9/29/11) IN WIT114ESS WHEREOF, the City of Virginia Beach, Virginia, has caused this bond to be signed by its Mayor, to be countersigned by its Clerk, its seal to be affixed hereto, and this bond to be dated the dated date stated above. COUNTERSIGNED: (SEAL) Clerk, City of Virginia Beach, Virginia CERTIFICATE OF AUTHENTICATION Date Authenticated: November , 2010 Mayor, City of Virginia Beach, Virginia This bond is one of the Bonds described in the within mentioned Agreement of Trust. CITY TREASURER, Registrar Authorized Officer ME DRAFT 9/29/10 ASSIGNMENT FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) unto (please print or typewrite name and address, including zip code, of Transferee) PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF TRANSFEREE the within Bond and all rights thereunder, hereby irrevocably constituting and appointing , Attorney, to transfer said Bond on the books kept for the registration thereof, with full power of substitution in the premises. Dated: Signature Guaranteed NOTICE: Signature(s) must be guaranteed by an Eligible Guarantor Institution such as a Commercial Bank, Trust Company, Securities Broker/Dealer, Credit Union, or Savings Association who is a member of a medallion program approved by The Securities Transfer Association, Inc. (Signature of Registered Owner) NOTICE: The signature above must correspond with the name of the registered owner as it appears on the front of this bond in every particular, without alteration or enlargement or any change whatsoever. DOCSNFK-#1654137-v4-Second_Supplement_Agr—ent_of Trust_VB_Storm Water_2010.DOC DRAFT 9/29/10 OFFICIAL NOTICE OF SALE CITY OF VIRGINIA BEACH, VIRGINIA $20,000,000 STORM WATER UTILITY REVENUE BONDS, SERIES 2010A Electronic bids only will be received by the City of Virginia Beach, Virginia (the "City"), in accordance with this Official Notice of Sale until 11:30 A.M., Local Time, on Tuesday, November 9, 2010 (the "Date of Sale"). In the case of a malfunction in submitting an electronic bid, facsimile bids will be allowed, as more fully described below. Immediately thereafter, the bids will be publicly announced, and the City Manager will act upon the bids by 2:30 p.m., Local Time. Bidders must designate, through the submission of their bid, all of the Bonds (as defined below) as either tax-exempt bonds (the "Tax -Exempt Bonds'), federally taxable Build America Bonds (the "Taxable BAB Bonds'), or a combination thereof, as further described herein. See "Bidding Rules; Award of Bonds. " Bid Submission Solely as an accommodation to bidders, electronic bids via BIDCOMP/PARITY (the "Electronic Bidding System") will be accepted in accordance with this Official Notice of Sale. The City is using BIDCOMP/PARITY as a communication mechanism to conduct the electronic bidding for the sale of $20,000,000 Storm Water Utility Revenue Bonds, Series 2010A (the "Bonds"), as described herein. To the extent any instructions or directions set forth in BIDCOMR(PARITY conflict with this Official Notice of Sale, the terms of this Official Notice of Sale shall control. Each bidder submitting an electronic bid agrees (i) that it is solely responsible for all arrangements with BIDCOMP/PARITY, (ii) that BIDCOMP/PARITY is not acting as the agent of the City', and (iii) that the City is not responsible for ensuring or verifying bidder compliance with any of the procedures of BIDCOMP/PARITY. The City assumes no responsibility for, and each bidder expressly assumes the risks of and responsibility for, any incomplete, inaccurate or untimely bid submitted by such bidder through BIDCOMP/PARITY. Each bidder shall be solely responsible tFor making necessary arrangements to access the Electronic Bidding System for purposes of submitting its bid in a timely manner and in compliance with the requirements of this Official Notice of Sale. Neither the City nor the Electronic Bidding System shall have any duty or obligation to provide or assure such access to any bidder, and neither the City nor BIDCOMP/PARITY shall be responsible for proper operation of, or have any liability for, any delays or interruptions of, or any damages caused by, BIDCOMP/PARITY. For f irther information about BIDCOMP/PARITY, potential bidders may contact BIDCOMP/PARITY at 1359 Broadway, 2°d Floor, New York, New York 10018, telephone (212) 849-5021. The Bonds may be issued as one tax-exempt series, one taxable series, or a combination thereof, as further described herein. In the event of a malfunction of the Electronic Bidding System, facsimile transmission bids will be accepted up to 11:30 A.M., Local Time, on the Date of Sale. Bidders choosing to submit bids in the case of a malfunction by facsimile transmission shall use the following telecopier numbers for such transmission: (757) 385- 4302 or (757) 385-8894 (Attention: Patricia A. Phillips). Transmissions received after the deadline shall be rejected. It is the responsibility of the bidder to ensure that the bid is legible, that the bid is received not later than 11:30 A.M., Local Time, and that the bid is sent to one of the telecopier numbers set forth above. Illegible transmissions shall be rejected. The City's, financial advisor, Government Finance Associates, Inc. ("Financial Advisor") will, on behalf of DRAFT 9/29/10 the City, verify receipt of each bid submitted through facsimile transmission by contacting each bidder by telephone once the bid has been received. The Financial Advisor will in no instance correct, alter or in any way change bids submitted through facsimile transmission. Neither the City nor its Financial Advisor will be responsible for bids submitted by facsimile transmission not received in accordance with the provisions of this Official Notice of Sale. Bidders electing to submit bids via facsimile transmission will bear full and complete responsibility for the transmission of such bid. Each bid must be unconditional. Principal Redemption The Bonds will be limited obligations of the City, dated the date of delivery (the "Dated Date"), anticipated for Tuesday, November 16, 2010, and will mature serially or be subject to mandatory sinking fund redemptions on November 15 in the years and amounts shown below. Serial Bonds, Term Bonds and Mandatory Sinking Fund Redemptions Bidders may provide in the bid form for all of the Bonds to be issued as serial Bonds or may designate consecutive annual principal amounts of the Bonds to be combined into not more than two Term Bonds. In the event that a bidder chooses to specify a Term Bond, each such Term Bond shall be subject to mandatory sinking fund redemption commencing on November 15 of the first year which has been combined to form such Term Bond and continuing on November 15 in each year thereafter until the stated maturity of such Term Bond. The amount redeemed in any year shall be equal to the principal amount for such year set forth in the amortization schedule above. Bonds to be redeemed in any year by mandatory sinking fund redemption shall be redeemed at par and shall be selected by lot from among the maturities of the Term Bond being redeemed. Description of the Bonds; Book -Entry Only System The Bonds will be issued pursuant to an Agreement of Trust dated as of January 1, 2000, as previously supplemented and as further supplemented by a Second Supplemental Agreement of Trust dated as of November 1, 2010 (collectively, the "Agreement of Trust"), all between the City and U.S. Bank National Association (successor to First Union National Bank), Richmond, Virginia, as trustee (the "Trustee"). The Bonds will be issued by means of a book -entry system with no distribution of physical Bond certificates made to the public. One Bond certificate for each maturity will be issued to The Depository Trust Company, New York, New York ("DTC"), or its nominee, and immobilized in its custody. The book -entry system will evidence beneficial ownership of the Bonds in principal amounts of $5,000 or multiples thereof, with transfers of beneficial ownership effected on the records of DTC and its participants pursuant to rules and procedures established by DTC and its participants. Bond certificates registered in the name of Cede & Co. will be deposited with DTC. Interest on the 2 Preliminary Preliminary Due November 15 Amount Due November 15 Amount 2011 $530,000 2024 $760,000 2012 540,000 2025 800,000 2013 550,000 2026 840,000 2014 565,000 2027 880,000 2015 575,000 2028 925,000 2016 585,000 2029 970,000 2017 595,000 2030 1,020,000 2018 610,000 2031 1,070,000 2019 625,000 2032 1,125,000 2020 640,000 2033 1,180,000 2021 660,000 2034 1,240,000 2022 690,000 2035 1,300,000 2023 725,000 Serial Bonds, Term Bonds and Mandatory Sinking Fund Redemptions Bidders may provide in the bid form for all of the Bonds to be issued as serial Bonds or may designate consecutive annual principal amounts of the Bonds to be combined into not more than two Term Bonds. In the event that a bidder chooses to specify a Term Bond, each such Term Bond shall be subject to mandatory sinking fund redemption commencing on November 15 of the first year which has been combined to form such Term Bond and continuing on November 15 in each year thereafter until the stated maturity of such Term Bond. The amount redeemed in any year shall be equal to the principal amount for such year set forth in the amortization schedule above. Bonds to be redeemed in any year by mandatory sinking fund redemption shall be redeemed at par and shall be selected by lot from among the maturities of the Term Bond being redeemed. Description of the Bonds; Book -Entry Only System The Bonds will be issued pursuant to an Agreement of Trust dated as of January 1, 2000, as previously supplemented and as further supplemented by a Second Supplemental Agreement of Trust dated as of November 1, 2010 (collectively, the "Agreement of Trust"), all between the City and U.S. Bank National Association (successor to First Union National Bank), Richmond, Virginia, as trustee (the "Trustee"). The Bonds will be issued by means of a book -entry system with no distribution of physical Bond certificates made to the public. One Bond certificate for each maturity will be issued to The Depository Trust Company, New York, New York ("DTC"), or its nominee, and immobilized in its custody. The book -entry system will evidence beneficial ownership of the Bonds in principal amounts of $5,000 or multiples thereof, with transfers of beneficial ownership effected on the records of DTC and its participants pursuant to rules and procedures established by DTC and its participants. Bond certificates registered in the name of Cede & Co. will be deposited with DTC. Interest on the 2 DRAFT 9/29/10 Bonds will be paid semiannually on May 15 and November 15, beginning May 15, 2011, and principal on the Bonds will be paid annuailly on November 15, beginning November 15, 2011, to DTC or its nominee as registered owner of the Bonds. Transfer of principal and interest payments to beneficial owners by participants of DTC will be the responsibility of such participants and other nominees of beneficial owners. The City will not be responsible or liable for maintaining, supervising or reviewing the records maintained by DTC, its participants or persons acting through such participants. DTC may, discontinue providing its services as securities depository with respect to the Bonds at any time by giving reasonable notice to the City. Under such circumstances, in the event that a successor securities depository is not obtained, Bond certificates are required to be prepared, executed and delivered. The City,may decide to discontinue use of the system of book -entry transfers through DTC (or a successor securities depository). In that case, either a successor depository will be selected by the City or Bond certificates will be prepared, executed and delivered. Optional Redemption Optional.Redemption for Bonds Sold and Issued as Tax -Exempt Bonds Tax -Exempt Bonds that mature on or before November 15, 2020 are not subject to optional redemption prior to their stated maturities. Tax -Exempt Bonds that mature on and after November 15, 2021 will be subject to redemption beginning November 15, 2020, in whole or in part at any time, at the option of the City, upon payment of the par amount of the Tax -Exempt Bonds so redeemed plus interest accrued and unpaid to the redemption date. Extraordinary Optional Redemption for Taxable BAB Bonds Before November 15, 2020, any Bonds issued as Taxable BAB Bonds are subject to redemption on any date prior to their maturity at the option of the City, in whole or in part upon the occurrence of an Extraordinary Event, as defined below, at a redemption price equal to the greater of: (1) 100% of the principal amount of the Taxable BAB Bonds to be redeemed; or (2) the sum of the present value of the remaining scheduled payments of principal and interest to the maturity date of the Bonds to be redeemed, not including any portion of those payments of interest accrued and unpaid as of the date on which the Bonds are to be redeemed, discounted to the date on which the Bonds are to be redeemed on a semi-annual basis, assuming a 360 -day year consisting of hwelve 30 -day months, at the Treasury Rate, plus 100 basis points; plus, in each case, accrued interest on the Bonds to be redeemed to the redemption date. An `Extraordinary Event" will have occurred if the City determines that a material adverse change has occurred to Section 54AA or 6431 of the Code (as such Sections were added by Section 1531 of the Recovery Act, pertaining to "Build America Bonds") or there is any guidance published by the Internal Revenue Service or the United States Department of the Treasury with respect to such Sections or any other determination by the Internal Revenue Service or the United $tates Department of the Treasury, which determination is not the result of any act or omission by the City to satisfy the requirements to qualify to receive the 35% cash subsidy payment from the United States Department of the Treasury, pursuant to which the City's 35% cash subsidy payment from the United States Department of the Treasury is reduced or eliminated. "Treasury Rate" means, with respect to any redemption date for a particular Taxable BAB Bond, the yield to maturity as of such redemption date of United States securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519)) that has become publicly available at least two business clays prior to the redemption date (excluding inflation indexed securities or, if such Statistical Release is no longer published, any publicly available source of similar market data) most nearly equal to the period 3 DRAFT 9/29/10 from the redemption date to the maturity date of the Taxable BAB Bond to be redeemed; provided, that if the period from the redemption date to the maturity date is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used. Optional Redemption for Bonds Sold and Issued As Taxable BAB Bonds Taxable BAB Bonds maturing on and prior to November 15, 2020 will not be subject to redemption prior to maturity except pursuant to the extraordinary optional redemption provisions set forth above. Taxable BAB Bonds maturing after November 15, 2020 will be subject to redemption prior to maturity, at the option of the City, on or after November 15, 2020, either in whole or in part on a pro rata basis as described below at any time, at a redemption price of 100% of the principal amount of the Taxable BAB Bonds to be redeemed, plus accrued interest to the date set for redemption. Selection of Bonds to be Redeemed in Partial Redemption The following provisions shall apply to Bonds sold and issued as Tax -Exempt Bonds: If less than all of the Bonds are called for optional redemption, the Bonds to be redeemed shall be selected by the City's Director of Finance in such manner as may be determined to be in the best interest of the City. If less than all of the Bonds of a particular maturity are called for redemption, DTC or any successor securities depository will select the Bonds to be redeemed pursuant to its rules and procedures or, if the book -entry system is discontinued, the Bonds to be redeemed will be selected by the City Treasurer, who has been appointed registrar (the "Registrar"), by lot in such manner as the Registrar in its discretion may determine. In either case, each portion of the $5,000 principal amount is counted as one Bond for such purpose. The following provisions shall apply to Bonds sold and issued as Taxable BAB Bonds: If less than all of the Taxable BAB Bonds of a particular maturity are called for redemption, the particular Taxable BAB Bonds to be redeemed will be selected on a pro -rata basis. With respect to such Taxable BAB Bonds sold, "pro rata" is determined, in connection with any mandatory sinking fund redemption or any optional redemption in part, by multiplying the principal amount of such maturity to be redeemed on the application redemption date by a fraction, the numerator of which is equal to the principal amount of the Taxable BAB Bond of such maturity owned by the registered owner, and the denominator of which is equal to the total amount of the Taxable BAB Bonds of such maturity then outstanding immediately prior to such redemption date, and then rounding the product down to the next lower integral multiple of $5,000; provided that the portion of any Taxable BAB Bonds to be redeemed is required to be in authorized denominations and all Taxable Bonds of a maturity to remain outstanding following any redemption are required to be in authorized.denominations. Notwithstanding the foregoing, if the Taxable BAB Bonds are in book -entry form at the time of such redemption, the City will instruct DTC to instruct the DTC participants to select the specific Taxable BAB Bonds for redemption by lot within maturities among Beneficial Owners, and the City shall not have any responsibility to ensure that DTC or the DTC participants properly select such Taxable BAB Bonds for redemption. Notice of Redemption The City will cause notice of the call for redemption identifying the Bonds or portions thereof to be redeemed to be sent by the Trustee by facsimile transmission, registered or certified mail or overnight express delivery, not less than 30 nor more than 60 days prior to the redemption date, to the registered owner thereof. Neither the City nor the Trustee shall be responsible for mailing notice of redemption to anyone other than DTC or another qualified securities depository or its nominee unless no qualified securities depository is the registered owner of the Bonds. If no qualified securities depository is the registered owner of the Bonds, notice of redemption shall be mailed to the registered owners of the Bonds. If a portion of a Bond is called for redemption, a new Bond in principal amount equal to the unredeemed portion shall be issued to the registered owner upon the surrender thereof. 2 DRAFT 9/29/10 Security The Bonds are limited obligations of the City, payable solely from Pledged Revenues (as defined in the Agreement of Trust and as more fully described in the Preliminary Official Statement, dated , 2010 ). The Bonds shall not be deemed to constitute indebtedness of, or a pledge of the faith and credit of, the Commonwealth of Virginia nor the faith and credit of any county, city, town or other subdivision of the Commonwealth of Virginia, including the City. The issuance of the Bonds do not directly, indirectly or contingently obligate the Commonwealth or any other political subdivision of the Commonwealth, including the City, to levy and collect any taxes whatsoever or make any appropriation therefore except from the Pledged Revenues to the payment of the principal of and premium, if any, and interest on the Bonds. In the Agreement of Trust, the City covenants to fix, charge, collect and revise its fees, rates and other charges for the use of and for the services furnished by the System in each Fiscal Year so as to produce revenues sufficient to pay the cost of operation and maintenance, the cost of necessary replacements and improvements and debt service on the Bonds and on any other indebtedness of the City secured by such revenues, and to provide certain reserves therefore. Use of Bond Proceeds As described in more detail in the City's Preliminary Official Statement, dated , 2010, the Bonds are being issued to provide funds for various storm water construction projects in the City and to pay for certain costs of issuance related to the Bonds. Bidding Rules; Award of Bonds A bidder may choose to submit tax-exempt interest rates or taxable Build American Bonds (BAB) interest rates on a maturity by maturity basis. The Bonds may be issued as one tax-exempt series, one taxable BAB series, or a combination which would include a series of Tax -Exempt Bonds and a series of Taxable BAB Bonds. In the event the winning bid is a combination of Tax -Exempt Bonds and Taxable BAB Bonds, the Tax -Exempt Bonds will be identified as Series 2010A-1 (Tax -Exempt) and the Taxable BAB Bonds will be identified as Series 2010A-2 (Taxable — Build America Bonds). Bidders may only bid to purchase all of the Bonds. No bid for less than 100% of par (computed on the basis of a 360 -day year and twelve 30 -day months) shall be considered. Bidders are invited to name the rate or rates of interest per annum which the Bonds are to bear in multiples of one -twentieth (1/20th) or one-eighth (1/8th) of one percent. All Bonds maturing on the same date must bear interest at the same rate. Any number of rates may be named provided that (a) the highest rate of interest may not exceed the lowest rate of interest by more than 5 percentage points, and (b) the highest rate of interest stated for any maturity may not exceed 6.5% per annum. The rate limitation shall apply to both Tax -Exempt Bonds and to Taxable BAB Bonds; for purposes of the award, the interest rates on any Taxable BAB Bonds shall be reduced by 35% (reflecting the interest rate credit that the City will elect to receive as a result of the Bonds being qualified Build America Bonds). In no event shall the true interest cost for the issue received by the City exceed 5.0%. Bidders must provide to the City immediately upon award the reoffering price for such Bonds; for Taxable BAB Bonds, such reoffering price for each maturity cannot exceed the par amount of the individual maturity by more than 0.25 percent multiplied by the number of whole years to the maturity date of such Bonds. The City reserves the right to reject any or all bids (regardless of the interest rate bid), to reject any bid not complying with this Official Notice of Sale and, so far as permitted by law, to waive any irregularity or informality with respect to any bid or the bidding process. Unless all bids are rejected, the Bonds will be awarded to the bidder complying with the terms of this Official Notice of Sale and submitting a bid which provides the lowest "true" interest cost to the City. True interest cost shall be determined for each bid by doubling the semiannual interest rate, compounded semiannually, necessary to discount the debt service payments from the payment dates to the Dated Date and to the price bid. If more than one bid offers the same lowest true interest cost, the successful bid will be selected by the City Manager by lot. The City reserves the right to reject any or all bids and to waive any irregularity or informality with respect to any bid. 5 DRAFT 9/29/10 Bids for the Bonds shall not be conditioned upon obtaining insurance or any other credit enhancement. If a bidder proposes to obtain a policy of municipal bond insurance or any other credit enhancement, any such purchase of insurance or commitment therefor shall be at the sole option and expense of the bidder, and the bidder must pay any increased costs of issuance of the Bonds as a result of such insurance or commitment. Any failure by the bidder to obtain such a policy of insurance shall not in any way relieve such bidder of its contractual obligations arising from the acceptance of its bid for the purchase of the Bonds. As promptly as reasonably possible after the bids are received, the City will notify the bidder to whom the Bonds will be awarded, if and when such award is made. Such bidder, upon such notice, shall advise the City of the initial reoffering prices or yields to the public of each maturity of the Bonds (the "Initial Reoffering Prices or Yields") and details regarding the anticipated use of a municipal bond insurance policy, if any, in connection with the Bonds. The successful bidder must reasonably expect to sell to the public 10% or more in par amount of the Bonds from each maturity at the Initial Reoffering Prices or Yields. All bids will remain firm for a period of no less than three hours after the time specified for the opening of bids. An award of the Bonds, if made, will be made by the City Manager within such three hour period or, with the express consent of the bidders, such longer time period as deemed necessary. Good Faith Deposit The successful bidder for the Bonds is required to submit a Good Faith Deposit in the amount of $200,000 payable to the order of the City of Virginia Beach in the form of a wire transfer in federal funds, as instructed by the City's Financial Advisor. The successful bidder must submit the Good Faith Deposit not later than 11:30 A.M., Local Time, on the next business day following the award. The successful bidder shall provide the federal funds reference number upon request of the City. If the successful bidder fails to comply with the terms of its bid, the Good Faith Deposit shall be retained by the City as full liquidated damages; otherwise, the amount thereof will be applied to the purchase price of the Bonds at the time of delivery. No interest on the Good Faith Deposit will accrue to the successful bidder. Delivery of the Bonds The Bonds will be delivered at the expense of the City in New York, New York, through the facilities of DTC on or about Tuesday, November 16, 2010. Concurrently with the delivery of the Bonds, the City will furnish to the successful bidder without cost (a) a certificate dated the date of delivery of the Bonds, signed by the appropriate City officials and stating that no litigation of any kind is then pending or, to the best of their information, knowledge and belief, threatened against the City to restrain or enjoin the issuance or delivery of the Bonds and (b) certificates dated the date of delivery of the Bonds, stating that the descriptions and statements in the Official Statement (except in the sections entitled "Book -Entry System" and "Tax Matters" and in the columns "Price,/Yield" and "CUSIP No." on the inside cover), on the date of the Official Statement and on the date of delivery of the Bonds, were and are true and correct in all material respects, did not and do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make such descriptions and statements, in light of the circumstances under which they were made, not misleading. Such certificates will also state, however, that such City officials did not independently verify the information indicated in the Official Statement as having been obtained or derived from sources other than the City and its officers but they have no reason to believe that such information is not accurate. Certificate of Winning Bidder The successful bidder must, by facsimile transmission or overnight delivery received by the City within 24 hours after receipt of the bids for the Bonds, furnish the following information to the City to complete the Official Statement in final form, as described below: 0 DRAFT 9/29/10 A. The offering prices for the Bonds (expressed as the price or yield per maturity, exclusive of any accrued interest). B. Selling compensation (aggregate total anticipated compensation to the underwriters expressed in dollars, based on the expectation that all Bonds are sold at the prices or yields described in Subpart A above). C. The identity of the underwriters if the successful bidder is a part of a group or syndicate. D. Any other material information necessary to complete the Official Statement in final form but not tmown to the City. Prior to the delivery of the Bonds, the successful bidder shall furnish to the City a certificate in form acceptable to bond counsel, to the effect that the successful bidder has made a bona fide public offering of the Bonds at the initial public offering prices set forth in such certificate, that the successful bidder has complied with Rule G- 37 of the Municipal Securities Rulemaking Board (the "MSRB") with respect to the City and that a substantial amount of the Bonds of each maturity were sold to the public (excluding bond houses, brokers and other intermediaries) at such initial public offering prices. Such certificate shall state that (1) it is made on the best knowledge, information and belief of the successful bidder and (2) 10% or more in par amount of the Bonds of each maturity was reasonably expected to be sold on the Date of Sale to the public at the initial public offering price (such amount being sufficient to establish the sale of a substantial amount of the Bonds). CUSIP Numbers It is anticipated that CUSIP identification numbers will be printed on the Bonds, but neither the failure to print such numbers on any Bond nor any error with respect thereto shall constitute cause for failure or refusal by the successful bidder thereof to accept delivery of and pay for the Bonds in accordance with the terms of its bid. The City will assume responsibility for the expense of the initial printing of CUSIP numbers; provided, however, that the City assumes no responsibility for any CUSIP Service Bureau or other charges that may be imposed for the assignment of such numbers. All expenses in connection with the assignment of CUSIP numbers shall be paid by the successful bidder. It shall be the obligation of the successful bidder to furnish to DTC an underwriter questionnaire and to the City the CUSIP numbers for the Bonds within two business days following the date of award. Official Statement The City will furnish the successful bidder at the expense of the City up to 300 copies of the final Official Statement by the earlier of the closing date and seven business days from the date of the award of the Bonds, as specified in Rule 15c2-12, as amended (the "Rule"), of the Securities and Exchange Commission (the "SEC") and the rules of the MSRB provided that minor delays in furnishing such final Official Statement will not be a basis for failure to pay for and accept delivery of the Bonds. Additional copies will be made available at the successful bidder's request and expense. The City assumes no responsibility or obligation for the distribution or delivery of the Official Statement to anyone other than the successful bidder. The successful bidder agrees to provide one copy of the Official Statement to the Municipal Securities Rulemaking Board using its Electronic Municipal Market Access System upon receipt of the Official Statement from the City and two copies of the Official Statement (with any required forms) to the MSRB or its designee no later than ten business days following the Date of Sale. The successful bidder shall notify the City as soon as practicable of (1) the date which is the end of the underwriting period (such "underwriting period" is described in the Rule), and (2) the date of filing the Official Statement with the MSRB or its designee. If the Bonds are awarded to a syndicate, the City will designate the senior managing underwriter of the syndicate as its agent for purposes of distributing copies of the Official Statement to each participating underwriter. Any underwriter executing and delivering a bid form with respect to the Bonds agrees thereby that if its bid is 7 DRAFT 9/29/10 accepted it shall accept such designation and shall enter into a contractual relationship with all participating underwriters for the purposes of assuring the receipt and distribution by each such participating underwriter of the Official Statement, unless another firm is so designated by the syndicate in writing and approved by the City. Legal Opinion The approving opinion of Kaufman & Canoles, a Professional Corporation, Norfolk, Virginia, Bond Counsel, with respect to the Bonds will be furnished to the successful bidder at the expense of the City and will state that the Bonds constitute limited obligations of the City, payable solely from Pledged Revenues, as defined in the Preliminary Official Statement, dated , 2010, subject to the prior application thereof to the payment of Operating Expenses and reserves established under the Agreement of Trust on a parity with other storm water utility revenue bonds of the City. Federal and State Securities Laws No action has been taken to qualify the Bonds under the federal and state securities laws. Tax Matters The Preliminary Official Statement relating to the Bonds contains a discussion of the tax status of interest received on the Bonds, whether issued as Tax -Exempt Bonds or Taxable BAB Bonds. Continuing Disclosure To assist the successful bidder in complying with the Rule, the City will agree, pursuant to the Continuing Disclosure Agreement, to provide certain annual financial information and operating data and notices of the occurrence of certain events. A description of this undertaking is set forth in the Preliminary Official Statement for the Bonds and will also be set forth in the final Official Statement for the Bonds (See Appendix G of the Preliminary Official Statement, dated , 2010). Change of Date and Time for Receipt of Bids The City expects to take bids on the Bonds on November 9, 2010. However, the City reserves the right to postpone the date and time established for the receipt of bids. Any such postponement will be announced by the Thomson Municipal Newswire ("TM3"), or any other such service. If the receipt of bids is postponed, any alternative date for receipt of bids will be announced via TM3, or any other such service. Any bidder must submit a bid for the purchase of the Bonds on such alternative sale date in conformity with the provisions of this Official Notice of Sale, except for any changes announced via TM3, or any other such service used by the City for this purpose, as described therein. Additional Information For further information relating to the Bonds and the City, reference is made to the City's Preliminary Official Statement. The City has deemed the Preliminary Official Statement to be final as of its date within the meaning of the Rule, except for the omission of certain pricing and other information permitted to be omitted pursuant to the Rule. The Official Bid Form and the Preliminary Official Statement may be obtained from the City's Financial Advisor, Government Finance Associates, Inc. (telephone 212-521-4090). CITY OF VIRGINIA BEACH, VIRGINIA By: James K. Spore City Manager Dated: , 2010 DRAFT 9/29/10 OFFICIAL NOTICE OF SALE CITY OF VIRGINIA BEACH, VIRGINIA $7,105,000* STORM WATER UTILITY REFUNDING REVENUE BONDS, SERIES 2010B Electronic bids only will be received by the City of Virginia Beach, Virginia (the "City"), in accordance with this Official Notice of Sale until 12:30 P.M., Local Time, on Tuesday, November 9, 2010 (the "Date of Sale"). In the case of a malfunction in submitting an electronic bid, facsimile bids will be allowed, as more fully described below. Immediately thereafter, the bids will be publicly announced, and the City Manager will act upon the bids by 3:30 p.m., Local Time. Bid Submission Solely as an accommodation to bidders, electronic bids via BIDCOMP/PARITY (the "Electronic Bidding System") will be accepted in accordance with this Official Notice of Sale. The City is using BIDCOMP/PARITY as a communication mechanism to conduct the electronic bidding for the sale of $7,105,000* Storm Water Utility Refunding Revenue Bonds, Series 2010B (the "Bonds"), as described herein. To the extent any instructions or directions set forth in BIDCOMP/PARITY conflict with this Official Notice of Sale, the terms of this Official Notice of Sale shall control. Each bidder submitting an electronic bid agrees (i) that it is solely responsible for all arrangements with BIDCOMP/PARITY, (ii) that BIDCOMP/PARITY is not acting as the agent of the City, and (iii) that the City is not responsible for ensuring or verifying bidder compliance with any of the procedures of BIDCOMP/PARITY. The City assumes no responsibility for, and each bidder expressly assumes the risks of and responsibility for, any incomplete, inaccurate or untimely bid submitted by such bidder through BIDCOMP/PARITY. Each bidder shall be solely responsible for making necessary arrangements to access the Electronic Bidding System for purposes of submitting its bid in a timely manner and in compliance with the requirements of this Official Notice of Sale. Neither the City nor the Electronic Bidding System shall have any duty or obligation to provide or assure such access to any bidder, and neither the City nor BIDCOMP/PARITY shall be responsible for proper operation of, or have any liability for, any delays or interruptions of, or any damages caused by, BIDCOMP/PARITY. For further information about BIDCOMP/PARITY, potential bidders may contact BIDCOMP/PARITY at 1359 Broadway, 2nd Floor, New York, New York 10018, telephone (212) 849-5021. In the event of a malfunction of the Electronic Bidding System, facsimile transmission bids will be accepted up to 12:30 P.M., Local Time, on the Date of Sale. Bidders choosing to submit bids in the case of a malfunction by facsimile transmission shall use the following telecopier numbers for such transmission: (757) 385- 4302 or (757) 385-8894 (Attention: Patricia A. Phillips). Transmissions received after the deadline shall be rejected. It is the responsibility of the bidder to ensure that the bid is legible, that the bid is received not later than 12:30 P.M., Local Time, and that the bid is sent to one of the telecopier numbers set forth above. Illegible transmissions shall be rejected. Government Finance Associates, Inc. ("Financial Advisor") will verify receipt of each bid submitted through facsimile transmission by contacting each bidder by telephone once the bid has been received. The City's Financial Advisor will in no instance correct, alter or in any way change bids submitted through facsimile transmission. Neither the City nor its Financial Advisor will be responsible for bids submitted by facsimile transmission not received in accordance with the provisions of this Official Notice of Sale. Bidders electing to submit bids via facsimile transmission will bear full and complete responsibility for the transmission of such bid. * Preliminary; subject to change. DRAFT 9/29/10 Each bid must be unconditional. Principal Redemption The Bonds will be storm water utility refunding revenue bonds of the City, dated the date of delivery (the "Dated Date"), and will mature serially or be subject to mandatory sinking fund redemptions on September 1 in the years and amounts shown below. Preliminary Preliminary Due September 1 Amount* Due September 1 Amount* 2011 $ 470,000 2018 $ 500,000 2012 435,000 2019 510,000 2013 445,000 2020 525,000 2014 460,000 2021 535,000 2015 470,000 2022 565,000 2016 475,000 2023 595,000 2017 490,000 2024 630,000 Serial Bonds, Term Bonds and Mandatory Sinking Fund Redemptions Bidders may provide in the bid form for all of the Bonds to be issued as serial Bonds or may designate consecutive annual principal amounts of the Bonds to be combined into not more than two Term Bonds. In the event that a bidder chooses to specify a Term Bond, each such Term Bond shall be subject to mandatory sinking fund redemption commencing on September 1 of the first year which has been combined to form such Term Bond and continuing on September lin each year thereafter until the stated maturity of such Term Bond. The amount redeemed in any year shall be equal to the principal amount for such year set forth in the amortization schedule above. Bonds to be redeemed in any year by mandatory sinking fund redemption shall be redeemed at par and shall be selected by lot from among the maturities of the Term Bond being redeemed. Description of the Bonds; Book -Entry Only System The Bonds will be issued pursuant to an Agreement of Trust dated as of January 1, 2000, as previously supplemented and as further supplemented by a Second Supplemental Agreement of Trust dated as of November 1, 2010 (collectively, the "Agreement of Trust"), all between the City and U.S. Bank National Association (successor to First Union National Bank), Richmond, Virginia, as trustee (the "Trustee"). The Bonds will be issued by means of a book -entry system with no distribution of physical Bond certificates made to the public. One Bond certificate for each maturity will be issued to The Depository Trust Company, New York, New York ("DTC"), or its nominee, and immobilized in its custody. The book -entry system will evidence beneficial ownership of the Bonds in principal amounts of $5,000 or multiples thereof, with transfers of beneficial ownership effected on the records of DTC and its participants pursuant to rules and procedures established by DTC and its participants. Bond certificates registered in the name of Cede & Co. will be deposited with DTC. Interest on the Bonds will be paid semiannually on March 1 and September 1, beginning March 1, 2011, and principal on the Bonds will be paid annually on September 1, beginning September 1, 2011, to DTC or its nominee as registered owner of the Bonds. Transfer of principal and interest payments to beneficial owners by participants of DTC will be the responsibility of such participants and other nominees of beneficial owners. The City will not be responsible or liable for maintaining, supervising or reviewing the records maintained by DTC, its participants or persons acting through such participants. * Preliminary; subject to change. 2 DRAFT 9/29/10 DTC may discontinue providing its services as securities depository with respect to the Bonds at any time by giving reasonable notice to the City. Under such circumstances, in the event that a successor securities depository is not obtained, Bond certificates are required to be prepared, executed and delivered. The City may decide to discontinue use of the system of book -entry transfers through DTC (or a successor securities depository). In that case, either a successor depository will be selected by the City or Bond certificates will be prepared, executed and delivered. Optional Redemption The Bonds that mature on or before September 1, 2020 are not subject to optional redemption prior to their stated maturities. The Bonds that mature on and after September 1, 2021 will be subject to redemption beginning September 1, 2020, in whole or in part at any time, at the option of the City, upon payment of the par amount of principal so redeemed plus interest accrued and unpaid to the redemption date. Selection of Bonds for Redemption; Notice of Redemption If less than all of the Bonds are called for optional redemption, the Bonds to be redeemed shall be selected by the City's Director of Finance in such manner as may be determined to be in the best interest of the City. If less than all of the Bonds of a particular maturity are called for redemption, DTC or any- successor securities depository will select the Bonds to be redeemed pursuant to its rules and procedures or, if the book -entry system is discontinued, the Bonds to be redeemed will be selected by the City Treasurer, who has been appointed registrar (the "Registrar"), by lot in such manner as the Registrar in its discretion may determine. In either case, each portion of the $5,000 principal amount is counted as one Bond for such purpose. The City will cause notice of the call for redemption identifying the Bonds or portions thereof to be redeemed to be sent by the Trustee by facsimile transmission, registered or certified mail or overnight express delivery, not less than 30 nor more than 60 days prior to the redemption date, to the registered owner thereof. Neither the City nor the Trustee shall be responsible for mailing notice of redemption to anyone other than DTC or another qualified securities depository or its nominee unless no qualified securities depository is the registered owner of the Bonds. If no qualified securities depository is the registered owner of the Bonds, notice of redemption shall be mailed to the registered owners of the Bonds. If a portion of a Bond is called for redemption, a new Bond in principal amount equal to the unredeemed portion shall be issued to the registered owner upon the surrender thereof. Security The Bonds are limited obligations of the City, payable solely from Pledged Revenues (as defined in the Agreement of Trust and as more fully described in the Preliminary Official Statement, dated , 2010 ). The Bonds shall not be deemed to constitute indebtedness of, or a pledge of the faith and credit of, the Commonwealth of Virginia nor the faith and credit of any county, city, town or other subdivision of the Commonwealth of Virginia, including the City. The issuance of the Bonds do not directly, indirectly or contingently obligate the Commonwealth or any other political subdivision of the Commonwealth, including the City, to levy and collect any taxes whatsoever or make any appropriation therefore except from the Pledged Revenues to the payment of the principal of and premium, if any, and interest on the Bonds. In the Agreement of Trust, the City covenants to fix, charge, collect and revise its fees, rates and other charges for the use of and for the services furnished by the System in each Fiscal Year so as to produce revenues sufficient to pay the cost of operation and maintenance, the cost of necessary replacements and improvements and debt service on the Bonds and on any other indebtedness of the City secured by such revenues, and to provide certain reserves therefore. 3 DRAFT 9/29/10 Use of Bond Proceeds As described in more detail in the City's Preliminary Official Statement, dated , 2010, the Bonds are being issued for the purpose of providing funds for the refunding of all or a portion of the City's Storm Water Utility Revenue Bonds, Series 2000, and to pay the costs of issuance related to the Bonds. Bidding Rules; Award of Bonds Bidders may only bid to purchase all of the Bonds. Bidders are invited to name the rate or rates of interest per annum which the Bonds are to bear in multiples of one -twentieth (1/20th) or one-eighth (1/8th) of one percent. All Bonds maturing on the same date must bear interest at the same rate. Any number of rates may be named provided that (a) the highest rate of interest may not exceed the lowest rate of interest by more than 3 percentage points, and (b) the highest rate of interest stated for any maturity may not exceed 3.5% per annum, but in no event shall the "true" interest cost exceed 3.5%. No bid for less than par plus accrued interest (computed on the basis of a 360 -day year and twelve 30 -day months) shall be considered. The City reserves the right to reject any or all bids (regardless of the interest rate bid), to reject any bid not complying with this Official Notice of Sale and, so far as permitted by law, to waive any irregularity or informality with respect to any bid or the bidding process. As promptly as reasonably possible after the bids are received, the City will notify the bidder to whom the Bonds will be awarded, if and when such award is made. Such bidder, upon such notice, shall advise the City of the initial reoffering prices or yields to the public of each maturity of the Bonds (the "Initial Reoffering Prices or Yields") and details regarding the anticipated use of a municipal bond insurance policy, if any, in connection with the Bonds. The successful bidder must reasonably expect to sell to the public 10% or more in par amount of the Bonds from each maturity at the Initial Reoffering Prices or Yields. All bids will remain firm for a period of no less than three hours after the time specified for the opening of bids. An award of the Bonds, if made, will be made by the City within such three hour period or, with the express consent of the bidders, such longer time period as deemed necessary. Unless all bids are rejected, the Bonds will be awarded to the bidder complying with the terms of this Official Notice of Sale and submitting a bid which provides the lowest "true" interest cost to the City. True interest cost shall be determined for each bid by doubling the semiannual interest rate, compounded semiannually, necessary to discount the debt service payments from the payment dates to the Dated Date, which is the date of settlement, and to the bid price. If more than one bid offers the same lowest true interest cost, the successful bid will be selected by the City Manager by lot. The City reserves the right to reject any or all bids and to waive any irregularity or informality with respect to any bid. Bids for the Bonds shall not be conditioned upon obtaining insurance or any other credit enhancement. If a bidder proposes to obtain a policy of municipal bond insurance or any other credit enhancement, any such purchase of insurance or commitment therefor shall be at the sole option and expense of the bidder, and the bidder must pay any increased costs of issuance of the Bonds as a result of such insurance or commitment. Any failure by the bidder to obtain such a policy of insurance shall not in any way relieve such bidder of its contractual obligations arising from the acceptance of its bid for the purchase of the Bonds. Adjustment of Principal Amount Prior to the Opening of Bids: The preliminary aggregate principal amount of the Bonds and the preliminary annual principal maturities of the Bonds, each as set forth in this Official Notice of Sale, may be revised by the City before the receipt of bids. Any such revisions made prior to receipt of the bids will be published via TM3 Newswire (or some other municipal newswire recognized by the municipal securities industry) and via BIDCOMP/PARITY no later than 9:00 a.m. (Local Time) on the Date of Sale. In the event that no such revisions are made, the preliminary amounts will constitute the amounts that shall be used for the bid and award of the Bonds, subject to further adjustment, as described below. 4 DRAFT 9/29/10 Adjustment of Principal Amount After Award: The City reserves the right, after the award of the Bonds to the successful bidder, to increase or decrease by up to ten percent (10%) the principal amount of the Bonds being offered hereby. The City may choose not to exercise such right: to increase or decrease the principal amount of the Bonds being offered. Should the City decide to exercise this right, any such increase or decrease in the principal amount of particular maturities of the Bonds will be communicated to the successful bidder by 5:00 p.m., Local Time, on the Date of Sale. The dollar amount bid for the principal of the Bonds by the successful bidder will be adjusted as necessary to reflect any increase or decrease in the principal amount of the applicable maturities of the Bonds so adjusted, but the interest rates specified by the successful bidder for each maturity will not be altered. Such adjusted dollar amount bid will not change the successful bidder's compensation per $1,000 of par amount of the Bonds from that which would have resulted from the bid submitted. The successful bidder may not withdraw its bid as a result of any change made within the foregoing limits. Good Faith Deposit The successful bidder for the Bonds is required to submit a Good Faith Deposit in the amount of $70,000 payable to the order of the City in the form of a wire transfer in federal funds, as instructed by the City's Financial Advisor. The successful bidder must submit the Good Faith Deposit not later than 12:30 P.M., Local Time, on the next business day following the award. The successful bidder shall provide the federal funds reference number upon request of the City. If the successful bidder fails to comply with the terms of its bid, the Good Faith Deposit shall be retained by the City as full liquidated damages; otherwise, the amount thereof will be applied to the purchase price of the Bonds at the time of delivery. No interest on the Good Faith Deposit will accrue to the successful bidder. Delivery of the Bonds The Bonds will be delivered at the expense of the City in New York, New York, through the facilities of DTC on or about November 16, 2010. Concurrently with the delivery of the Bonds, the City will furnish to the successful bidder without cost (a) a certificate dated the date of delivery of the Bonds, signed by the appropriate City officials and stating that no litigation of any kind is then pending or, to the best of their information, knowledge and belief, threatened against the City to restrain or enjoin the issuance or delivery of the Bonds and (b) certificates dated the date of delivery of the Bonds, stating that the descriptions and statements in the Official Statement (except in the sections entitled "Book -Entry System" and "Tax Matters" and in the columns "Price/ Yield" and "CUSIP No." on the inside cover), on the date of the Official Statement and on the date of delivery of the Bonds, were and are true and correct in all material respects, did not and do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make such descriptions and statements, in light of the circumstances under which they were made, not misleading. Such certificates will also state, however, that such City officials did not independently verify the information indicated in the Official Statement as having been obtained or derived from sources other than the City and its officers but they have no reason to believe that such information is not accurate. Certificate of Winning Bidder The successful bidder must, by facsimile transmission or overnight delivery received by the City within 24 hours after receipt of the bids for the Bonds, furnish the following information to the City to complete the Official Statement in final firm, as described below: A. The offering prices for the Bonds (expressed as the price or yield per maturity, exclusive of any accrued interest). 5 DRAFT 9/29/10 B. Selling compensation (aggregate total anticipated compensation to the underwriters expressed in dollars, based on the expectation that all Bonds are sold at the prices or yields described in Subpart A above). C. The identity of the underwriters if the successful bidder is a part of a group or syndicate. D. Any other material information necessary to complete the Official Statement in final form but not known to the City. Prior to the delivery of the Bonds, the successful bidder shall furnish to the City a certificate in form acceptable to bond counsel, to the effect that the successful bidder has made a bona fide public offering of the Bonds at the initial public offering prices set forth in such certificate, that the successful bidder has complied with Rule G- 37 of the Municipal Securities Rulemaking Board (the "MSRB") with respect to the City and that a substantial amount of the Bonds of each maturity were sold to the public (excluding bond houses, brokers and other intermediaries) at such initial public offering prices. Such certificate shall state that (1) it is made on the best knowledge, information and belief of the successful bidder and (2) 10% or more in par amount of the Bonds of each maturity was reasonably expected to be sold on the Date of Sale to the public at the initial public offering price (such amount being sufficient to establish the sale of a substantial amount of the Bonds). CUSIP Numbers It is anticipated that CUSIP identification numbers will be printed on the Bonds, but neither the failure to print such numbers on any Bond nor any error with respect thereto shall constitute cause for failure or refusal by the successful bidder thereof to accept delivery of and pay for the Bonds in accordance with the terms of its bid. The City will assume responsibility for the expense of the initial printing of CUSIP numbers; provided, however, that the City assumes no responsibility for any CUSIP Service Bureau or other charges that may be imposed for the assignment of such numbers. All expenses in connection with the assignment of CUSIP numbers shall be paid by the successful bidder. It shall be the obligation of the successful bidder to furnish to DTC an underwriter questionnaire and to the City the CUSIP numbers for the Bonds within two business days following the date of award. Official Statement The City will furnish the successful bidder at the expense of the City up to 250 copies of the final Official Statement by the earlier of the closing date and seven business days from the date of the award of the Bonds, as specified in Rule 15c2-12, as amended (the "Rule"), of the Securities and Exchange Commission (the "SEC") and the rules of the MSRB provided that minor delays in furnishing such final Official Statement will not be a basis for failure to pay for and accept delivery of the Bonds. Additional copies will be made available at the successful bidder's request and expense. The City assumes no responsibility or obligation for the distribution or delivery of the Official Statement to anyone other than the successful bidder. The successful bidder agrees to provide one copy of the Official Statement to the Municipal Securities Rulemaking Board using its Electronic Municipal Market Access System upon receipt of the Official Statement from the City and two copies of the Official Statement (with any required forms) to the MSRB or its designee no later than ten business days following the Date of Sale. The successful bidder shall notify the City as soon as practicable of (1) the date which is the end of the underwriting period (such "underwriting period" is described in the Rule), and (2) the date of filing the Official Statement with the MSRB or its designee. If the Bonds are awarded to a syndicate, the City will designate the senior managing underwriter of the syndicate as its agent for purposes of distributing copies of the Official Statement to each participating underwriter. Any underwriter executing and delivering a bid form with respect to the Bonds agrees thereby that if its bid is accepted it shall accept such designation and shall enter into a contractual relationship with all participating underwriters for the purposes of assuring the receipt and distribution by each such participating underwriter of the Official Statement, unless another firm is so designated by the syndicate in writing and approved by the City. Cel DRAFT 9/29/10 Legal Opinion The approving opinion of Kaufman & Canoles, a Professional Corporation, Norfolk, Virginia, with respect to the Bonds will be furnished to the successful bidder at the expense of the City and will state that the Bonds constitute limited obligations of the City, payable solely from Pledged Revenues, as defined in the Preliminary Official Statement; dated , 2010, subject to the prior application thereof to the payment of Operating Expenses and reserves established under the Agreement of Trust on parity with other storm water utility revenue bonds of the City. Federal and State Securities Laws No action has been taken to qualify the Bonds under the federal and state securities laws. Tax Exemption The Preliminary Official Statement relating to the Bonds contains a discussion of the effect of the Internal Revenue Code of 1986, as amended, on the exclusion from gross income of interest on the Bonds and also containes the proposed form of the opinion of Kaufman & Canoles, a Professional Corporation, Norfolk, Virginia, insofar as it concerns such exclusion. Continuing Disclosure To assist the successful bidder in complying with the Rule, the City will agree, pursuant to the Continuing Disclosure Agreement, to provide certain annual financial information and operating data and notices of the occurrence of certain events. A description of this undertaking is set forth in the Preliminary Official Statement for the Bonds and will also be set forth in the final Official Statement for the Bonds (See Appendix G of the Preliminary Official Statement dated , 2010). Change of Date and Time for Receipt of Bids The City expects to take bids on the Bonds on November 9, 2010. However, the City reserves the right to postpone the date and time established for the receipt of bids. Any such postponement will be announced by the Thomson Municipal Newswire ("TM3"), or any other such service. If the receipt of bids is postponed, any alternative date for receipt of bids will be announced via TM3, or any other such service. Any bidder must submit a bid for the purchase of the Bonds on such alternative sale date in conformity with the provisions of this Official Notice of Sale, except for any changes announced via TM3, or any other such service used by the City for this purpose, as described therein. Additional Information For further information relating to the Bonds and the City, reference is made to the City's Preliminary Official Statement. The City has deemed the Preliminary Official Statement to be final as of its date within the meaning of the Rule, except for the omission of certain pricing and other information permitted to be omitted pursuant to the Rule. The Official Bid Form and the Preliminary Official Statement may be obtained from the City's Financial Advisor, Government Finance Associates, Inc. (telephone 212-521-4090). Dated: , 2010 CITY OF VIRGINIA BEACH, VIRGINIA By: James K. Spore City Manager h DRAFT 9/29/2010 CONTINUING DISCLOSURE AGREEMENT This CONTINUING DISCLOSURE AGREEMENT dated November _, 2010 (the "Disclosure Agreement"), is executed and delivered by the City of Virginia Beach, Virginia (the "City"), in connection with the issuance of the issuance of its $ Storm Water Utility Revenue [and Refunding] Bonds, Series 201OA-1 (Tax -Exempt), its $ Storm Water Utility Revenue Bonds, Series 201OA-2 (Taxable -Build America Bonds), and its $ Storm Water Utility Refunding Revenue Bonds, Series 2010B (Tax -Exempt) (collectively, the "Bonds"). The City hereby covenants and agrees as follows: Section 1. Purpose. This Disclosure Agreement is being executed and delivered by the City for the benefit of the holders of the Bonds and in order to assist the original purchasers of the Bonds in complying with the provisions of Section (b)(5)(i) of Rule 15c2-12, including the amendments thereto that will become effective on December 1, 2010 (the "Rule"), promulgated by the Securities and Exchange Commission (the "SEC") by providing certain annual financial information and event notices required by the Rule. Section 2. Annual Disclosure. (a) The City shall provide annually financial information and operating data in accordance with the provisions of Section (b)(5)(i) of the Rule as follows: (i) audited financial statements of the City's storm water enterprise fund, prepared in accordance with generally accepted accounting principles; and (ii) operating data with respect to the City's storm water disposal system of the type described in the City's Official Statement dated November _, 2010, under the captions "Storm Water Utility Fees," and "Pro Forma Calculation of Revenue Covenant." If the financial statements filed pursuant to Section 2(a) are not audited, the City shall file such statements as audited when available. (b) The City shall file annually with the Municipal Securities Rulemaking Board ("MSRB") the financial information and operating data described in subsection (a) above (collectively, the "Annual Disclosure") within 180 days after the end of the City's fiscal year, commencing with the City's fiscal year ending June 30, 2010. (c) Any Annual Disclosure may be included by specific reference to other documents previously provided to the MSRB or filed with the SEC; provided, however, that any final official statement incorporated by reference must be available from the MSRB. (d) The City shall file with the MSRB in a timely manner notice specifying any failure of the City to provide the Annual Disclosure by the date specified. Section 3. Event Disclosure. The City shall file with the MSRB in a timely manner not in excess of ten (10) business days after the occurrence of the event, notice of the occurrence of any of the following events with respect to the Bonds: (a) principal and interest payment delinquencies; (b) non-payment related defaults, if material; (c) unscheduled draws on debt service reserves reflecting financial difficulties; (d) unscheduled draws on any credit enhancement reflecting financial difficulties; (e) substitution of credit or liquidity providers, or their failure to perform; (1) adverse tax opinions, the issuance by the IRS of proposed or final determinations of taxability, Notices of Proposed Issue (IRS Form 5701- TEB) or other material notices or determinations with respect to the tax status of the Bonds, or other material events affecting the tax status of the Bonds; (g) modifications to rights of Bondholders, if material; (h) bond calls, if material, and tender offers; (i) defeasance of all or any portion of the Bonds; (j) release, substitution, or sale of property securing repayment of the Bonds, if material; (k:) rating changes; (T) bankruptcy, insolvency, receivership or similar event of the City; (m) the consummation of a merger, consolidation, or acquisition involving the City or the sale of all or substantially all of the assets of the City, other than in the ordinary course of business, the entry into a definitive agreement to undertake such an action or the termination of a definitive agreement relating to any such actions, other than pursuant to its terms, if material; and (n) appointment of a successor or additional trustee or the change of name of a trustee, if material. Section 4. Termination. The obligations of the City hereunder will terminate upon the redemption, defeasance (within the meaning of the Rule) or payment in full of all the Bonds. Section 5. Amendment. The City may modify its obligations hereunder without the consent of Bondholders, provided that this Disclosure Agreement as so modified complies with the Rule as it exists at the time of modification. The City shall within a reasonable time thereafter file with the MSRB a description of such modification(s). Section 6. Defaults. (a) If the City fails to comply with any covenant or obligation regarding Continuing Disclosure specified in this Disclosure Agreement, any holder (within the 2 meaning of the Rule) or beneficial holder of Bonds then outstanding may, by notice to the City, proceed to protect and enforce its rights and the rights of the holders by an action for specific performance of the City's covenant to provide the Continuing Disclosure. (b) Notwithstanding anything herein to the contrary, any failure of the City to comply with any obligation regarding Continuing Disclosure specified in this Disclosure Agreement (i) shall not be deemed to constitute an event of default under the Bonds or the resolution providing for the issuance of the Bonds and (ii) shall not give rise to any right or remedy other than that described in Section 6(a) above. Section 7. Filing Method. Any filing required hereunder shall be made by transmitting such disclosure, notice or other information in electronic format to the MSRB through the MSRB's Electronic Municipal Market Access (EMMA) system pursuant to procedures promulgated by the MSRB. Section 8. Additional Disclosure. The City may from time to time disclose certain information and data in addition to the Continuing Disclosure. Notwithstanding anything herein to the contrary, the City shall not incur any obligation to continue to provide, or to update, such additional information or data. Section 9. Counterparts. This Disclosure Agreement may be executed in several counterparts each of which shall be an original and all of which shall constitute but one and the same instrument. Section 10. Governing Law. This Disclosure Agreement shall be construed and enforced in accordance with the laws of the Commonwealth of Virginia. CITY OF VIRGINIA BEACH, VIRGINIA Mayor, City of Virginia Beach, Virginia City Manager, City of Virginia Beach, Virginia 3 +BE;� CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: A Resolution Adopting the City's 2011 Legislative Agenda MEETING DATE: October 12, 2010 ■ Background: City Council has a tradition of presenting a Legislative Agenda to the General Assembly each year. This Agenda provides the Virginia Beach Delegation with positions of the City Council on funding, legislation, public safety, and other issues that may be brought before the General Assembly. ■ Considerations: This Agenda was prepared based on input from Council Members, Department Directors, and City Council boards and commissions. ■ Public Information: An informal public meeting was held on August 19, 2010 with community leaders and representatives of various citizen groups, the City Council and the General Assembly Delegation to obtain items for inclusion in the 2011 Legislative Agenda. An opportunity for public comment will be held on September 28, 2010 in Council Chambers. ■ Recommendations: It is recommended that City Council approve the attached resolution that adopts the 2011 Legislative Agenda and requests the City's local Delegation to the General Assembly sponsor and/or support legislation that would carry out the goals and objectives set forth. ■ Attachments: Resolution and 2011 Legislative Agenda. Recommended Action: Approval Submitting Department/Agency: City Manager's Office City Manage . Sk, -�Jvy"L 1 A RESOLUTION ADOPTING THE CITY'S 2011 2 LEGISLATIVE AGENDA 3 4 WHEREAS, the City Council traditionally adopts a Legislative Agenda and 5 requests member of the City's local delegation to the General Assembly sponsor and/or 6 support legislation therein; and 7 8 WHEREAS, the City Council has considered a number of goals and objectives 9 for inclusion in the City's 2011 Community Legislative Agenda. 10 11 NOW THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 12 VIRGINIA BEACH, VIRGINIA: 13 14 That the., City Council hereby adopts the City's 2011 Legislative Agenda, which is 15 attached hereto as Exhibit A and is hereby incorporated by reference. 16 17 BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA 18 BEACH, VIRGINIA: 19 20 That the City's Delegation to the General Assembly is hereby requested to 21 sponsor and/or support legislation in the 2011 Session of the General Assembly that 22 would carry out the goals and objectives of the City as set forth in its Community 23 Legislative Agenda. 24 25 BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA 26 BEACH, VIRGINIA: 27 28 That the City Clerk is hereby directed to transmit a copy of this resolution to each 29 member of the City's local Delegation to the General Assembly. 30 31 Adopted by the City Council of the City of Virginia Beach, Virginia, this 32 day of , 2010. APPROVED TO CONTENT: CA11595 R-2 September 16, 2010 APPROVED AS TO LEGAL SUFFICIENCY: City Attorney's Office LEGISLATIVE AGENDA GENERAL ASSEMBLY SESSION 2011 CITY OF VIRGINIA BEACH LEGISLATIVE AGENDA GENERAL ASSEMBLY SESSION 2011 OCTOBER 12, 2010 CITY COUNCIL MEETING Preface...............,.....................................................................................................................................................................1-2 City of Virginia Beach 2011 Requested Code of Virginia Changes............................................................. 3 RecklessOperation of Paddleboards.......................................................................................................................... 3 Procedures for Notifying Accused of Certificate of Analysis; Waiver; Continuances ............................. 4 Ridingon Motorcycles, Generally................................................................................................................................. 5 Possessing Firearm While Under the Influence of Alcohol or Illegal Drugs ............................................... 6 Criminal History Record Information Check for Transfer of Certain Firearms ........................................ 7 Issuing Civil Summons Via Contractor Working on Behalf of a Municipality ............................................ 8 Disability Retirement: Ineligibility for Malfeasance in Office.......................................................................... 9 Statutory Restriction on Reducing, Eliminating or Diverting Local Revenue Streams ..................10 Sales Tax Capture for Hotel Development Adjacent or Connected to the Convention Center ........... 11 PostLabor Day Opening for Schools..........................................................................................................................12 CourtFines and Fees........................................................................................................................................................13 CourthouseMaintenance Fee.......................................................................................................................................14 Historical Property Tax Incentives.............................................................................................................................15 Expansion of the Virginia Human Rights Act.........................................................................................................16 PassingBicycles..................................................................................................................................................................17 State Legislation That Would Enable Localities to Have a Choice Between Providing New Employees with a Defined Benefit Retirement Plan or a Defined Contribution Retirement Plan.................................................................................................................................................................18-19 Conversion of the Virginia Beach Clerk of Circuit Court's Office to a City Agency...............:..................20 Cityof Virginia Beach Funding Items...........................................................................................................21 ContinuedFunding for BRAC Effort..........................................................................................................................21 The 2011 Session of the General Assembly will be, as always, very important to the Commonwealth. Although it is not likely there will be the $4 billion shortfall for the General Assembly to deal with as was the case with the 2010 session; the second year of the biennium budget will certainly be difficult, nontheless. After addressing the unprecedented revenue shortfalls during the last session, there is still great uncertainty with the economy as this is written. The possibility of a double dip recession is still quite strong and although the Commonwealth's unemployment rate at approximately 7% is very good considering other states east of the Mississippi, it is still too high for those that are unemployed. The housing industry, which is vitally important to the economy of the Commonwealth, it is still in the doldrums and will likely stay there for many months into the future. As always there will be policy decisions made during the 2011 session that will have tremendous impact on the lives of Virginians. The City is very appreciative of Governor McDonnell's efforts to reform State government in order to make it more effective; as well as his and Lieutenant Governor Boling's efforts to create more jobs throughout the Commonwealth. More jobs and a more effective government will assist in addressing additional economic issues and prepare the Commonwealth for quick growth as the economy overall improves. The City is concerned, as are all local governments, about the possibility of ABC privatization, however. Currently, approximately $220 million per year goes to the General Fund, which helps to fund schools, public safety and many other basic services. Also, there are questions about the local governments control over ABC stores if they were to be privatized. We ask that those concerns are foremost in the deliberations as we move forward with government reform and overhaul, especially the privatization of ABC stores. As the City has been saying for many years, the General Assembly has attempted repeatedly to address transportation and has been unsuccessful. Although HB3202 would have created tremendous amounts of new revenue for the Commonwealth and especially for Hampton Roads and Northern Virginia, those efforts went wasted because of the ruling of the State Supreme Court. The City of Virginia Beach now receives zero dollars from the Commonwealth for urban street construction, down from an amount in the mid $30 million amount just a few years ago. Transportation has become a quality of life issue and is leading to decreased economic development and productivity. What is most troubling about the inability of General Assembly to react to the transportation crisis, is senior officials of the Navy repeatedly saying that they would not support additional commands coming to Hampton Roads until we address our transportation issues. This must be addressed as soon as possible. 1 In last, as has been previously stated in the past, City Council continues to be concerned about the level of funding available for basic services like education, social services and public safety. Perhaps the Governors Reform Commission will determine more appropriate levels of State funding and responsibility for these services. This is an issue that should and must be addressed as soon as possible. We wish the General Assembly members the best in the upcoming 2011 session. 2 1. RECKLESS OPERATION OF PADDLEBOARDS Chief James A. Cervera Department of Police Background Information: Virginia Code §29.1-738 prohibits, among other things, the operation of surfboards or "similar devices" in a reckless manner so as to endanger the life, limb, or property of any person. Paddleboards are large, heavy boards used for recreational purposes in coastal waters. Because the use of paddleboards could create a safety hazard for swimmers or persons wading into the water, the City seeks an amendment to Virginia Code § 29.1-738 to clarify that the reckless operation of a paddleboard so as to endanger the life, limb, or property of any person will be treated under the law the same as the reckless operation of a surfboard. Request: We request that the General Assembly amend Virginia Code § 29.1-73.8 to define "similar device" so as to include paddleboards. See Appendix Item 1 (page 24) for the text of the requested legislative change. 3 2. PROCEDURES FOR NOTIFYING ACCUSED OF CERTIFICATE OF ANALYSIS; WAIVER; CONTINUANCES Chief James A. Cervera Department of Police Background hiformation: The issue involves giving notice to a person that the arresting officer intends to use a certificate of analysis in court. The code currently requires a copy to be filed with the court the same day it is given to the accused. An officer can't possibly comply with this requirement if a person is arrested on a Friday night and is given a copy of the certificate of analysis and notice. Since the notice form does not reach the clerk's office until Monday, it is several days late. This has resulted in several breath test results being thrown out of court and on some occasions the entire DUI case being lost. Request: We request that the General Assembly amend Virginia Code § 19.2-187.1 to give an officer 7 days to file the copy. See Appendix Item 2 (page 25) for text of the requested legislative change. 4 3. RIDING ON MOTORCYCLES, GENERALLY Chief James A. Cervera Department of Police Background Information: Increased fuel costs are causing an increase in motorcycle usage. We are also seeing an increase in passengers on motorcycles. Since there are no safety devices manufactured for children and toddlers, it is quite unsafe and impractical for a child under the age of 8 to ride on a motorcycle. It is also quite difficult for most children under the age of 9 to stay on the motorcycle while it is in operation. Request: We request that the General Assembly amend Virginia Code § 46.2-909 to prohibit any person under the age of 9 from riding on a motorcycle on any public street or highway. See Appendix Item 3 (page 26) for text of the requested legislative change. 5 4. POSSESSING FIREARM WHILE UNDER THE INFLUENCE OF ALCOHOL OR ILLEGAL DRUGS Chief James A. Cervera Department of Police Background Information: Police officers are increasingly coming into contact with individuals that are legally carrying a firearm while intoxicated. There is no practical difference between "open carry" and concealed carry if the possessor is intoxicated. We therefore request that Virginia Code § 18.2-308 be amended to prohibit openly carrying a firearm or having it in plain view in a vehicle while intoxicated. The current Code prohibits a person with a concealed handgun permit to carry the handgun if they are intoxicated but there is no prohibition for a person to possess a firearm in plain view or "open carry" if they are intoxicated. Request: We request that the General Assembly amend Virginia Code § 18.2-308 so that any person who is under the influence of alcohol or illegal drugs while possessing a firearm in a public place shall be guilty of a Class 1 misdemeanor. See Appendix Item 4 (page 27) for text of the requested legislative change. Cel 5. CRIMINAL HISTORY RECORD INFORMATION CHECK FOR TRANSFER OF CERTAIN FIREARMS Councilmember Bill DeSteph Background Information: State law requires a gun dealer selling a firearm to an individual to obtain criminal history record information from the Department of State Police prior to completing the sale. Certain individuals and transactions are exempt from the background check requirements. A person who purchases a handgun in a private sale is exempt from the background check requirements. Questions have arisen in enforcing this law as to whether a dealer can have "business inventory" and a separate "personal inventory" of firearms that may qualify for the private sale exemption. As currently written, the law references sales or transfers from a dealer's inventory, but does not distinguish between a dealer's business inventory and a dealer's personal inventory. Request: In an effort to better protect citizens and to clarify that criminal history record information checks are required for firearm sales by a gun dealer, regardless of whether those firearms are part of his business inventory or his personal inventory, we request that the General Assembly amend Virginia Code §§ 18.2-308.2:2(B)(1) and 18.2-308.2:2(C) to delete the three occurrences of the phrase "from his inventory.") See Appendix Item 5 (page 28) for text of the requested legislative change. 7 6. ISSUING CIVIL SUMMONS VIA CONTRACTOR WORKING ON BEHALF OF A MUNICIPALITY Tom Leahy Department of Public Utilities Background Information: Virginia Code § 15.2-2122 empowers localities and their employees to take certain steps to protect public :health, including the authority to establish civil penalties for violations of fats, oils, and grease standards. The state code provision currently only grants a municipal employee the authority to issue civil summonses. The City uses contractors in furtherance of its fats, oils, and grease regulations, so we are proposing a change to this state code provision that would authorize a contractor working on behalf of a municipality to issue civil summonses. The contractor will be required to have the appropriate certifications from the Virginia Department of Housing and Community Development; and the Director of the Department of Public Utilities or his designee must authorize for issuance of the civil summons by the contractor. Request: See Appendix Item 6 (page 29) for text of the requested legislative change. E:3 7. DISABILITY RETIREMENT: INELIGIBILITY FOR MALFEASANCE IN OFFICE Patti Phillips Department of Finance Background Information: Presently employees are entitled to disability retirement when an injury renders them unable to perform the essential functions of their specific job regardless of whether they were terminated or cause for termination existed due to egregious misconduct in office. Although this situation may not occur regularly, there have been instances where employees were ultimately granted disability retirement despite criminal convictions for illegal conduct that occurred in office or, perhaps less egregious, when cause for termination existed at the time of separation due to ongoing administrative investigations. While Virginia Code § 51.1-153(C) sets forth that "no member shall be entitled to the benefits of this subsection if his employer certifies that his service was terminated because of dishonesty, malfeasance or misfeasance in office", the disability retirement code section lacks similar provisions. Localities and citizens should not be taxed with providing disability retirement benefits for employees who have undertaken egregious indiscretions. Request: The General Assembly is requested to amend Virginia Code § 51.1-156 disability retirement to add a section as follows: No member shall be entitled to the benefits of this section if his employer certifies that the employee was separated from service because of dishonesty, malfeasance, or misfeasance in office or the member is convicted of a felony involving malfeasance, misfeasance or other abuse of office. 6 8. STATUTORY RESTRICTION ON REDUCING, ELIMINATING OR DIVERTING LOCAL :REVENUE STREAMS Councilmember Davis Background Information: The City, like other localities, relies heavily upon existing local revenue streams. A handful of the subjects of taxation are segregated for local taxation by the Virginia Constitution while other taxes and local revenue streams are separately authorized by the Virginia Code. However, local taxes are assessed and collected in such a manner and at such times as the General Assembly prescribes by general law. Thus, changes to these local revenue streams, such as Personal Property Tax Relief and the overhaul of the Telecommunications Tax, were felt most acutely at the local level. On April 3, 2007, the City Council adopted a resolution establishing a Blue -Ribbon Tax, Fee, and Spending Task Force to study means of reducing the City's dependence on the real estate tax as a revenue source. In its final report, the Task Force concluded that the City can reduce its reliance on the real estate tax by diversifying the City's revenue streams. To reach this goal and other budgetary requirements, the City requires predictability in existing revenue streams. The City recognizes that revisions to some of these revenue streams may be needed in light of changes in circumstances since the time when these revenue streams were first established, and the City is in the process of reviewing those revenue streams. Because of the local impacts of any such changes, however, the City believes that the difficult decisions affecting local revenues ought to be made; at the local level. Request. The City requests that the General Assembly enact a mandate that the State, through the General Assembly, not take any action to reduce, eliminate, or divert any existing revenue streams that flow directly to localities unless the General Assembly creates a new revenue stream, or enhances an existing revenue stream, to replace the eliminated revenue stream. This request expressly excludes any funding mechanism that flows through the State's General Fund. 10 9. SALES TAX CAPTURE FOR HOTEL DEVELOPMENT ADJACENT OR CONNECTED TO THE CONVENTION CENTER Patti Phillips Department of Finance Background Information: A number of localities, starting with Roanoke in 1995, have received authority from the General Assembly to capture a portion of the sales tax generated from a public facility such as an auditorium, a coliseum, a convention center, or a conference center. In the 2009 General Assembly Session, the City of Virginia Beach was added to the list of localities eligible for this sales tax capture. The definition of "public facility" provided for the sales tax capture in Virginia Code § 58.1- 608.3 includes "any hotel which is attached to and is an integral part of such facility." The City seeks a legislative clarification for a hotel that is both adjacent to a publicly owned convention center and is the result of a public-private partnership between a municipality and a private entity where the municipality contributes infrastructure, land or conference space. Additionally, the window of time for the issuance of bonds entitled to the sales tax capture will close on July 1, 2012. The City seeks an extension of this window to July 1, 2015. Request: The City requests that the General Assembly amend § 58.1-608.3 to clarify the definition of a "public facility" to include a hotel that is both adjacent to a publicly owned convention center and is the result of a public-private partnership between a municipality and a private entity where the municipality contributes infrastructure, land or conference space. The City also requests extending the window of time for the issuance of bonds from July 1, 2012 to July 1, 2015. See Appendix Item 9 (page 33) for text of the requested legislative change. 11 10. POST LABOR DAY OPENING FOR SCHOOLS Jim Ricketts Department of Convention and Visitors Bureau Background Information: The total economic impact of the tourism industry in Virginia Beach for calendar year 2008 was $1.42 billion, stimulating 13,600 jobs. Starting schools in Virginia Beach and other localities in the Commonwealth prior to Labor Day would have significant financial consequences in the long term. Beginning schools prior to Labor Day would effectively reduce the available vacation time in August by two weeks, which is prime family vacation time that cannot be replaced. If the Virginia Beach school system begins before Labor Day and other localities follow our lead, it will have a negative effect on the economic impact of the tourism industry. To a lesser extent, this will also have an impact on this industry by affecting the labor pool available prior to Labor Day. Request: The General Assembly is requested to maintain the existing legislation concerning post Labor Day opening of schools. This allows all schools to open after Labor Day except those given exemptions by the State Board of Education. 12 11. COURT FINES AND FEES James K. Spore City Manager Background: On April 3, 2007, Virginia Beach City Council appointed a Blue Ribbon Tax, Fee and Spending Task Force. It was created to identify alternative tax and fee funding sources and spending policies and strategies; moreover it was divided into revenue and expenditure committees. On November 30, 2007, the Task Force presented revenue generating recommendations to City Council. In the final report, they indicated a need to increase court fines and fees to offset the cost of police officer court appearances and overtime associated with their presence.' Presently, the fines and fees offset 100% of the courts' operating costs with an additional 2% for all other additional costs. While the 2% can be applied toward the cost of police officer presence, the offset is minimal. Request: Request that the General Assembly adjust the maximum misdemeanor fine schedule annually by the rate of inflation. 1 Blue Ribbon Tax, Fee and Spending Task Force Report to Council, November 30, 2007, Sec. 7.4j, p. 19. 13 12. COURTHOUSE MAINTENANCE FEE James K. Spore City Manager Background Information: On April 3, 2007, Virginia Beach City Council appointed a Blue Ribbon Tax, Fee and Spending Task Force. It was created to identify alternative tax and fee funding sources and spending policies and strategies; moreover it was divided into revenue and expenditure committees. On November '30, 2007, the Task Force presented revenue generating recommendations to City Council. In the final report, they indicated a need to increase the courthouse maintenance fee biennially to keep pace with the cost of maintaining the City's courthouse.Z Presently, the City of Virginia Beach's rate is $2/criminal or traffic case, and the City's caseload is the highest in the state. The cost of maintaining this heavily used facility is increasing. Request: In accordance with the Blue Ribbon Committee's suggestion, the City of Virginia Beach requests the General Assembly allow localities to adjust the Courthouse Maintenance Fee schedule to reflect a biennial increase based upon the rate of inflation. If the fee would have been indexed against inflation five years ago, the City would have increased revenues 5.18% and generated an additional $89,352. The table data in the below indicate the adjusted fee basted upon the rate of inflation for the past five years. 2 Blue Ribbon Tax, Fee and Spending Task Force Report to Council, November 30, 2007, Sec. 7.4a, p. 16. 14 Courthouse Maintenance Fees Fiscal Actual Inflated Revenue Percent Year CPIs Inflation Fee Revenues Revenues Change Change 201.0 z 216.74 2.38% 2.33 $ 126,904 $ 147,892 $20,988 16.549/. 20C19 214.66 2.28 164,935 187,743 22,808 13.83% 20018 211.70 6.38% 2.28 152,422 173,500 21,078 13.83 20017 204.14 2.14 149,636 160,111 10,475 7.00' 20C16 199.0 6.93% 2.14 202,021 216,025 14,004 6.93% 2005 191.7 2.00 199,620 199,620 - 0.00•D 2004 186.1 2.00 208,647 208,647 - 0.00•D Total $1,204,185 $1,293,537 $89,352 7.42% 1. Computed on a fiscal year basis. 2. represents unaudited revenue figures. Source: Virginia Beach Department of MonagementServices 2 Blue Ribbon Tax, Fee and Spending Task Force Report to Council, November 30, 2007, Sec. 7.4a, p. 16. 14 13. HISTORICAL PROPERTY TAX INCENTIVES Virginia Beach Historic Preservation Commission Background: Stronger incentives are needed for homeowners whose properties are listed on the state's historical register, officially known as The Virginia Landmarks Register, to voluntarily maintain the historical character and integrity of their homes. Such incentives for voluntary preservation are particularly critical in cities such as Virginia Beach in which historical properties are not clustered together and therefore do not lend themselves to the creation of historical districts in which preservation standards are typically maintained through ordinances. Current state laws allow municipalities to offer incentives in the way of historical tax abatements on certain types of capital improvements. Virginia Beach has enacted such ordinances over past years. However, the appeal of this program to qualifying private homeowners has been very weak, as evidenced by the fact that none have yet sought to participate. Request. Request that the General Assembly add a new code section, modeled after Virginia Code § 58.1-3221.2 ("Energy Efficient Buildings), creating a separate classification of real property for houses and other structures that are listed on The Virginia Landmarks Register. This classification would allow the City or any other Virginia locality to affix a tax rate that is either the same or less than the tax rate applicable to the general class of real property. It is estimated in Virginia Beach that there are no more than 50 private properties in terms of those which are either already on, or could qualify, for The Virginia Landmarks Register. Therefore, the impact on our total tax revenues would be minimal. On the other han-d,. since these are the only privately owned historical properties we have left in our City, the impact upon our history could be very great. 15 14. EXPANSION OF THE VIRGINIA HUMAN RIGHTS ACT Virginia Beach Human Rights Commission Background Information: The Virginia Human Rights Act (Va. Code §2.2-3900 et seq) currently prohibits discrimination based on race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability. The City of Virginia Beach has prohibited the aforementioned since 1994. Request. The City requests that the General Assembly amend the Virginia Human Rights Act to also prohibit discrimination based on sexual orientation. IV 15. PASSING BICYCLES Councilmember Bill DeSteph Background Information: State law currently provides that a driver overtaking a bicycle shall pass at least two feet to the left of the overtaken bicycle and not proceed to the right side of the highway until safely clear of the overtaken bicycle. A nationwide movement on behalf of bicyclists has sought to broaden the clearing distance to three feet, and such changes have been enacted in several other states. This change would better protect the safety of both bicyclists and motorists. Request: Change the passing distance from two feet to three feet. See Appendix Item 15 (page 36) for text of the requested legislative change. 17 16. STATE LEGISLATION THAT WOULD ENABLE LOCALITIES TO HAVE A CHOICE BETWEEN PROVIDING NEW EMPLOYEES WITH A DEFINED BENEFIT RETIREMENT PLAN OR A DEFINED CONTRIBUTION RETIREMENT PLAN Councilmember Glenn Davis Background. The City of Virginia Beach's employees participate in the defined benefit retirement plan that is offered by Virginia Retirement System ("VRS"). This defined benefit retirement plan is based on a formula that includes age at retirement, average final compensation, and years of service to calculate a retiree's benefit, but the benefit is not based upon accumulated contributions and gains or losses in each member's account. Every two years VRS actuarially computes the annual required rates of contributions for the City of Virginia Beach, as a separately rated employer, based upon an actuarial valuation of the retirement allowances and other defined benefits payable on behalf of active Virginia Beach employees in VRS. The valuation includes actual service and disability retirements, assumptions on life spans, disability rates, and turnover of the workforce. The City of Virginia Beach contributes both the employee portion (5%) as well as the employer portion of the contributions. Current combined rates for the employer and employee portion of VRS rates totals 16.48% of total covered palaoll, and is paid entirely by the City of Virginia Beach. This rate has increased substantially since Virginia Beach joined VRS in 1963, when the total rate was 10%. In addition, this rate is expected to increase further to compensate for market losses incurred by VRS. Currently, an employee becomes vested in their VRS defined benefit account after five years of service. When a vested employee leaves City of Virginia Beach employment prior to retirement, the employee has two options: (1) maintain the VRS account to be accessed at retirement based on VRS formulas; or (2) seek a refund of the 5% employee contributions; In a defined contribution plan: • individual employee accounts would be maintained, and in creating the plan a cap on the contributions either by individual employees or by aggregate cost can be imposed, thereby eliminating uncertainty about the City of Virginia Beach's future benefits obligation and reducing the uncertainty associated with the fluctuation in employer contributions under the current VRS defined benefit plan; • the benefit would be based upon the contributions, plus or minus any gains or losses in each employee's :individual account. Accordingly, the amount of the City's employer contribution would not change due to losses or gains in the employee accounts; • a defined contribution plan could provide employees with substantially more control over their investment options; • employees can be immediately vested in the assets contained in their individual accounts; the assets have greater portability and allow increased options for employees who may leave City employment prior to retirement, including the potential capability of rolling over funds N into a 401(k), 401(a), government 457, or IRA. Request: The City of Virginia Beach urges the General Assembly to amend the Code of Virginia to enable localities to have a choice between providing new employees with the current defined benefit retirement plan or a new defined contribution retirement plan to be administered by VRS; and that the new defined contribution retirement plan should be fully portable. Other localities have begun offering this to their employees, and Virginia localities should be able to offer similar benefits. If the General Assembly is unwilling to grant all localities this authority, then the City of Virginia Beach requests that it be given the authority to develop its own defined-ccontribution plan as a model for the state. 19 17. CONVERSION OF THE VIRGINIA BEACH CLERK OF CIRCUIT COURT'S OFFICE TO A CITY AGENCY Councilmember Glenn Davis Background Information: The State Code establishes an Office of the Clerk of the Circuit Court in each Virginia city and county. The Clerk is charged with the custody, safekeeping and proper indexing of legal documents deposited in her office. For those matters before the City's only court of record, the Clerk's Office is responsible for the filing of all civil suits, docketing and filing of criminal actions, filing divorce suits, and filing adoption petitions. The Second Judicial Circuit, which consists of Virginia Beach, has the second largest caseload in the State. Most offices, including Virginia Beach's, are state agencies. All of the fees collected by the Clerk's Office are paid into the State's General Fund. If the fees collected exceed the State's portion of salaries and other expenses associated with the Office, the State Code provides the excess fees to be partially returned to the locality. In the past, the City (by statute) kept two- thirds of these excess fees. However, due to a legislative change, the City's current portion of excess fees is one-third, with the State getting the other two-thirds. For FY 2009-10, the total budget for the Clerk's Office is almost $2.8 million. The State Compensation Board reimburses the City for a portion of that cost. The amounts reimbursed by the Board include the employee salaries of approved positions and some of the fringe benefits of the state -funded positions. The unreimbursed amounts paid by the City include five positions that are not funded by the Board, the City's portion of fringe benefits, the cost of vacation, compensatory and sick leave, and supplies and equipment. Due to recent state budget cuts, the Compensation Board has reduced its reimbursement by $259,122, which. left the Clerk of Circuit Court with no choice but to lay off eleven employees, or approximately 20% of her staff. The Clerk has had to reduce the hours of operation of her office. Despite the best efforts to meet the needs of the public, these reductions will ultimately have a cost in the form of customer services and timely legal process. Also, this reduction in funding came despite the fact that Virginia Beach's Clerk's Office, unlike most clerk's offices statewide, generates more in fines and fees than it expends on salaries and other expenses. For more than a decade, state law has provided that the offices of the clerks of circuit court in Newport News and in Richmond shall be city agencies, not state entities. This conversion has allowed those cities to better staff their clerks' offices, and, thus better meet the needs of the residents they serve. Request: The City requests that the General Assembly amend Virginia Code § 17.1-288 to add the City of Virginia Beach to the list of localities where circuit court clerk's offices are city agencies. 20 1. CONTINUED FUNDING FOR BRAC EFFORT James K. Spore City Manager Background Information: Since January, 2007, the City of Virginia Beach and the Commonwealth of Virginia have been partnering to address the concerns that were raised by the Base Realignment and Closure (BRAC) Commission in 2005. This partnership has involved the cost sharing of $15 million annually to purchase properties in the APZ-1 and Clear Zone areas around Naval Air Station (NAS) Oceana and in the Interfacility Traffic Area (ITA) between Oceana and the Naval Auxiliary Landing Field Fentress. The City has established a policy of spending $7.5 million per year in perpetuity to comply with the BRAC Order, with the expectation that the Commonwealth will provide matching funds for expenses associated with the acquisition of land in the APZ-1 and Clear Zone areas around Oceana and in the ITA. For FY 2010-11, the City has received a grant for $7.5 million from the Virginia National Defense Industrial Authority through its Military Strategic Response Fund (MSRF) appropriations; however, no funding has been made available through the MSRF for FY 2011-12. The City plans to continue its policy of spending $7.5 million each year and requests that the General Assembly provide a matching amount for FY 2011-12. Request: Request that the General Assembly provide funds through the Military Strategic Response Fund in FY 2011-12 to the City of Virginia Beach to meet the requirements of the BRAC Compliance Plan. Providing these funds will reinforce our message to the U.S. Navy that the Commonwealth and City of Virginia Beach are still dedicated to preserving Naval Air Station Oceana. 21 APPENDIX: DRAFTS OF PROPOSED LEGISLATION - KEYED TO REQUESTED CODE CHANGES LEGISLATIVE ITEM 1 RECKLESS OPERATION OF PADDLEBOARDS Chief fames A. Cervera Department of Police § 29.1-738. Operating boat or manipulating water skis, etc., in reckless manner or while intoxicated, etc. A. No person shall operate any motorboat or vessel, or manipulate any skis, surfboard, or similar device, or engage in any spearfishing while skin diving or scuba diving in a reckless manner so as to endanger the life, limb, or property of any person. "Similar device" shall include, but not be limited to stand -0 paddleboards prone paddleboards and other self-propelled watercraft. B. No person shall operate any watercraft, as defined in § 29.1-712, or motorboat which is underway (i) while such person has a blood alcohol concentration at or greater than the blood alcohol concentration at which it is unlawful to drive or operate a motor vehicle as provided in § 18.2-266 as indicated by a chemical test administered in accordance with § 29.1-738.2, (ii) while such person is under the influence of alcohol, (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to operate the watercraft or motorboat safely, (iv) while such person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to operate the watercraft or motorboat safely, or (v) while such person has a blood concentration of any of the following substances at a level that is equal to or greater than: (a) 0.02 milligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c) 0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood. C. For purposes of this article, the word "operate" shall include being in actual physical control of a watercraft or motorboat and "underway" shall mean that a vessel is not at anchor, or made fast to the shore, or aground. Any person who violates any provision of this section shall be guilty of a Class 1 misdemeanor. 23 LEGISLATIVE ITEM 2 PROCEDURES FOR NOTIFYING ACCUSED OF CERTIFICATE OF ANALYSIS; WAIVER; CONTINUANCES Chief James A. Cervera Department of Police § 19.2-187.1„ Procedures for notifying accused of certificate of analysis; waiver; continuances. A. In any trial and in any hearing other than a preliminary hearing, in which the attorney for the Commonwealth intends to offer a certificate of analysis into evidence in lieu of testimony pursuant to § 19.2-187the attorney for the Commonwealth shall: 1. Provide by mail, delivery, or otherwise, a copy of the certificate to counsel of record for the accused, or to the accused if he is proceeding pro se, at no charge, no later than 28 days prior to the hearing or trial; 2. Provide simultaneously with the copy of_ the certificate so provided under subdivision 1 a notice to the accused of his right to object to having the certificate admitted without the person who performed the analysis or examination being present and testifying; 2a. When the attorney for the Commonwealth intends to present such testimony through two-way video conferencing, attach to the copy of the certificate provided under subdivision 1 a notice on a page separate from the notice in subdivision 2 specifying that the person who performed the analysis or examination may testify by two-way video conferencing and that the accused has a right to object to such two-way video testimony; and 3. File a copy of the certificate and notice with the clerk of the court hearing the matter en the within seven (7) da ysof the day the accused was provided a coi2v of the certificate and notice. ate3revided to the accused. 24 LEGISLATIVE ITEM 3 RIDING ON MOTORCYCLES, GENERALLY ChiefJamesk Cervera Department of Police § 46.2-100 Riding on motorcycles, generally. Every person operating a motorcycle, as defined in § 46.2-100 excluding three -wheeled vehicles, shall ride only upon the permanent seat attached to the motorcycle, and such operator shall not carry any other person. No other person shall ride on a motorcycle unless the motorcycle is designed to carry more than one person, in which event a passenger may ride on the permanent seat if designed for two persons, or on another seat firmly attached to the rear or side of the seat for the operator. If the motorcycle is designed to carry more than one person, it shall also be equipped with a footrest for the use of such passenger. No person under the age of 9 shall ride on a motorcycle. 25 LEGISLATIVE ITEM 4 POSSESSING FIREARM WHILE UNDER THE INFLUENCE OF ALCOHOL OR ILLEGAL DRUGS Chief James A. Cervera Department of Police § 18.2-308 Any person possessing a firearm par mitted to eaFr-y a eonee led handgun, who is under the influence of alcohol or illegal drugs while possessing eating such handgun firearm in a public place, to include the interior spaces of a motor vehicle shall be guilty of a Class 1 misdemeanor. This -shag fi e- hese individual that have a valid e,eeale hdgun perm Conviction of any of the following offenses shall be prima facie evidence, subject to rebuttal, that the person is "under the influence" for purposes of this section: manslaughter in violation of § 18.2-36.1maiming in violation of § 18.2-51.4driving while intoxicated in violation of § 18.2-266. public intoxication in violation of § 18.2-388. driving after illegally consuming alcohol in violation of 4 18.2-266.1. or driving while intoxicated in violation of § 46.2-341.24. Upon such conviction that court shall revoke the person's permit for a concealed handgun and promptly notify the issuing circuit court, if applicable. A person convicted of a violation of this subsection shall be ineligible to apply for a concealed handgun permit, or possess a firearm for a period of five years from the date of conviction. W LEGISLATIVE ITEM 5 CRIMINAL HISTORY RECORD INFORMATION CHECK FOR TRANSFER OF CERTAIN FIREARMS Councilmember Bill DeSteph §§ 18.2-308.2:2(B)(1) and 18.2-308.2:2(C) Delete the three occurrences of the phrase "from his inventory." No dealer shall sell, rent or transfer fF@m his invent any firearm unless the dealer has conducted a criminal history record information check. 27 LEGISLATIVE ITEM 6 ISSUING CIVIL SUMMONS VIA CONTRACTOR WORKING ON BEHALF OF A MUNICIPALITY Tom Leahy Department of Public Utilities § 15.2-2122 Localities authorized to establish, etc., sewage disposal system; incidental powers. For the purpose of providing relief from pollution, and for the improvement of conditions affecting the public health, and in addition to other powers conferred by law, any locality shall have power and authority to: 1. Establish, construct, improve, enlarge, operate and maintain a sewage disposal system with all the necessary sewers, conduits, pipelines, pumping and ventilating stations, treatment plants and works, and other plants, structures, boats, conveyances and other real and personal property necessary for the operation of such system, subject to the approvals required by § 62.1-44.19. 2. Acquire as permitted by § 15.2-1800real estate, or rights or easements therein, necessary or convenient for the establishment, enlargement, maintenance or operation of such sewage disposal system and the property, in whole or in part, of any private or public service corporation operating a sewage disposal system or chartered for the purpose of acquiring or operating such a system, including its lands, plants, works, buildings, machinery, pipes, mains and all appurtenances thereto and its contracts, easements, rights and franchises, including its franchise to be a corporation, and have the right to dispose of property so acquired no longer necessary for the use of such system. However, any locality condemning property hereunder shall rest under obligation to furnish sewage service, at appropriate rates, to the customers of any corporation whose property is condemned. 3. Borrow money for the purpose of establishing, constructing, improving and enlarging the sewage disposal system and to issue bonds therefor in the name of the locality. 4. Accept gifts or grants of real or personal property, money, material, labor or supplies for the establishment and operation of such sewage disposal system and make and perform such agreements or contracts as may be necessary or convenient in connection with the procuring or acceptance of such gifts or grants. W 5. Enter on any lands, waters and premises for the purpose of making surveys, borings, soundings and examinations for constructing and operating the sewage disposal system, and for the prevention of pollution. 6. Enter into contracts with the United States of America, or any department or agency thereof, or any person, firm or corporation, or the governing body of any other locality, providing for or relating to the treatment and disposal of sewage and industrial wastes. 7. Fix, charge and collect fees or other charges for the use and services of the sewage disposal system; and, except in counties which are not otherwise authorized, require the connection of premises with facilities provided for sewage disposal services. Water and sewer connection fees established by any locality shall be fair and reasonable. Such fees shall be reviewed by the locality periodically and shall be adjusted, if necessary, to assure that they continue to be fair and reasonable. Nothing herein shall affect existing contracts with bondholders which are in conflict with any of the foregoing provisions. 8. Finance in whole or in part the cost of establishing, constructing, improving or enlarging the sewage disposal systems authorized to be established, constructed, improved or enlarged by this section, in advance of putting such systems in operation. 9. Fix, charge and collect fees and other charges for the use and services of sanitary, combined and storm water sewers operated and maintained by any locality. Such fees and charges may be fixed and collected in accordance with and subject to the provisions of § 15.2-2119. 10. Establish standards for the use and services of sanitary, combined and stormwater sewer systems, treatment works and appurtenances operated and maintained by any locality, including but not limited to implementation of applicable pretreatment requirements pursuant to the State Water Control Law (§ 62.1-44.2 et seq.) and the federal Clean Water Act (33 U.S.C. § 1251 et seq.). Such sewer use standards may be implemented by ordinance, regulation, permit or contract of the locality or of the wastewater authority or sanitation district, where applicable, and violations thereof may be enforced by the same subject to the following conditions and limitations: a. No order assessing a civil penalty for a violation shall be issued until after the user has been provided an opportunity for a hearing, except with the consent of the user. The notice of the hearing shall be served personally or by registered or certified mail, return receipt requested, on any authorized representative of the user at least 30 days prior to the hearing. The notice shall specify the time and place for the hearing, facts and legal requirements related to the alleged violation, and the amount of any proposed 29 penalty. At the hearing the user may present evidence including witnesses regarding the occurrence of the alleged violation and the amount of the penalty, and the user may examine any witnesses for the locality. A verbatim record of the hearing shall be made. Within 30 days after the conclusion of the hearing, the locality shall make findings of fact and conclusions of law and issue the order. b. No order issued by the locality shall assess civil penalties in excess of the maximum amounts established in subdivision (8a) of § 62.1-44.15except with the consent of the user. The actual amount of any penalty assessed shall be based upon the severity of the violations, the extent of any potential or actual environmental harm or facility damage, the compliance history of the user, any economic benefit realized from the noncompliance, and the ability of the user to pay the penalty, provided, however, that in accordance with subdivision 10 d, a locality may establish a uniform schedule of civil penalties for specified types of violations. In addition to civil penalties, the order may include a monetary assessment for actual damages to sewers, treatment works and appurtenances and for costs, attorney fees and other expenses resulting from the violation. Civil penalties in excess of the maximum amounts established in subdivision (8a) of § 62.1-44.15 may be imposed only by a court in amounts determined in its discretion but not to exceed the maximum amounts established in § 62.1-44.32. C. Any order issued by the locality, whether or not such order assesses a civil penalty, shall inform the user of his right to seek reconsideration or review within the locality, if authorized, and of his right to judicial review of any final order by appeal to circuit court on. the record of proceedings before the locality. To commence an appeal, the user shall file a petition in circuit court within 30 days of the date of the order, and failure to do so shall constitute a waiver of the right to appeal. With respect to matters of law, the burden shall bE! on the party seeking review to designate and demonstrate an error of law subject to review by the court. With respect to issues of fact, the duty of the court shall be limited to ascertaining whether there was substantial evidence in the record to reasonably support such findings. d. In addition, a locality may, by ordinance, establish a uniform schedule of civil penalties for violations of fats, oils, and grease standards; infiltration and inflow standards; and other specified provisions of any ordinance (other than industrial pretreatment requirements of the State Water Control Law (§ 62.1-44.2 et seq.) or federal Clean Water Act (33 U.S.C. § 1251 et seq.). The schedule of civil penalties shall be uniform for each type of specified violation, and the penalty for any one violation shall be a civil penalty of not more than $100 for the initial summons, not more than $150 for each additional summons and not more than a total amount of $3,000 for a series of specified violations arising from the same operative set of facts. The locality, or a private contractor hired by the locality in 30 accordance with the provisions of subdivision 10 g, may issue a civil summons ticket for a scheduled violation. Any person summoned or issued a ticket for a scheduled violation may make an appearance in person or in writing by mail to the treasurer of the locality prior to the date fixed for trial in court. Any person so appearing may enter a waiver of trial, admit liability and pay the civil penalty established for the offense charged. If a person charged with a scheduled violation does not elect to enter a waiver of trial and admit liability, the violation shall be tried in the general district court in the same manner and with the same right of appeal as provided for by law. In any such trial, the locality shall have the burden of proving by a preponderance of the evidence the liability of the alleged violator. An admission of liability or finding of liability under this section shall not -be -deemed an admission at a criminal proceeding, and no civil action authorized by this section shall proceed while a criminal action is pending. e. This subdivision shall neither preclude a locality from proceeding directly in circuit court to compel compliance with its sewer use standards or seek civil penalties for violation of the same nor be interpreted as limiting any otherwise applicable legal remedies or sanctions. Each day during which a violation is found to have existed shall constitute a separate violation, and any civil penalties imposed under this subdivision shall be applied to the purpose of abating, preventing or mitigating environmental pollution. f. For purposes of enforcement of standards established under this subdivision, "locality" shall mean the locality's director of public utilities or other designee of the locality with responsibility for administering and enforcing sewer use standards or, in the case of a wastewater authority or sanitation district, its chief executive. g A locality that has by ordinance established a uniform schedule of civil penalties pursuant to subdivision 10 d may enter into an agreement with a private contractor to perform inspections of properties subject to such ordinance and to issue civil summons tickets for violations specified in the uniform schedule. Employees of a private contractor who perform inspections or issue civil summons tickets pursuant to this subdivision shall have valid Core and Commercial Plumbing certifications issued by the Department of Housing and Community Development No such agreement shall contain any provisions whereby compensation paid to the contractor is based on the number of violations or monetary penalties imposed and no civil summons ticket shall be issued unless authorized by the locality's director of public utilities or other designee of the locality with responsibility for administering and enforcing sewer use standards. 31 LEGISLATIVE ITEM 9 SALES TAX CAPTURE FOR HOTEL DEVELOPMENT ADJACENT OR CONNECTED TO THE CONVENTION CENTER Patti Phillips Department of Finance § 58.1-608.3. Entitlement to certain sales tax revenues. A. As used in this section, the following words and terms have the following meanings, unless some other meaning is plainly intended: "Bonds" means any obligations of a municipality for the payment of money "Cost," as applied to any public facility or to extensions or additions to any public facility, includes: (i) the purchase price of any public facility acquired by the municipality or the cost of acquiring all of the capital stock of the corporation owning the public facility and the amount to be paid to discharge any obligations in order to vest title to the public facility or any part of it in the municipality; (ii) expenses incident to determining the feasibility or practicability of the public facility; (iii) the cost of plans and specifications, surveys and estimates of costs and of revenues; (iv) the cost of all land, property, rights, easements and franchises acquired; (v) the cost of improvements, property or equipment; (vi) the cost of engineering, legal and other professional services; (vii) the cost of construction or reconstruction,; (viii) the cost of all labor, materials, machinery and equipment, (ix) financing charges; (x) interest before and during construction and for up to one year after completion of construction; (xi) start-up costs and operating capital; (xii) payments by a municipality of its share of the cost of any multijurisdictional public facility; (xiii) administrative expense; (xiv) any amounts to be deposited to reserve or replacement funds; and (xv) other expenses as may be necessary or incident to the financing of the public facility. Any obligation or expense incurred by the public facility in connection with any of the foregoing items of cost may be regarded as apart of the cost. "Municipality" means any county, city, town, authority, commission, or other public entity. "Public facility" means (i) any auditorium, coliseum, convention center, sports facility that is designed for use primarily as a baseball stadium for a minor league professional baseball affiliated team or structures attached thereto, or conference center, which is owned by a Virginia county, city, town, authority, or other public entity and where exhibits, meetings, conferences, conventions, seminars, or similar public events may be conducted; (ii) any hotel which is owned by a foundation whose sole purpose is to benefit a state -supported university and which is attached to and is an integral part of such facility, together with any lands reasonably necessary for the conduct of the operation of such events; or (iii) any hotel which is adjacent or attached to and is an integral part of such facility, provided such hotel development is either owned in whole or in part by the municipality or is the result of a public-private partnership between the municipality and a private entity where the 32 municipality contributes cash or municipal debt for infrastructure, land or conference space. However, such public facility must be located in the City of Hampton, City of Newport News, City of Norfolk, City of Portsmouth, City of Richmond, City of Roanoke, City of Salem, City of Staunton, City of Suffolk, or City of Virginia Beach. Any property, real, personal, or mixed, which is necessary or desirable in connection with any such auditorium, coliseum, convention center, baseball stadium or conference center, including, without limitation, facilities for food preparation and serving, parking facilities, and administration offices, is encompassed within this definition. However, structures commonly referred to as "shopping centers" or "malls" shall not constitute a public facility hereunder. A public facility shall not include residential condominiums, townhomes, or other residential units. In addition, only a new public facility, or a public facility which will undergo a substantial and significant renovation or expansion, shall be eligible under subsection B of this section. A new public facility is one whose construction began after December 31, 1991. A substantial and significant renovation entails a project whose cost is at least 50 percent of the original cost of the facility being renovated and shall have begun after December 31, 1991. A substantial and significant expansion entails an increase in floor space of at least 50 percent over that existing in the preexisting facility and shall have begun after December 31, 1991; or an increase in floor space of at least 10 percent over that existing in a public facility that qualified as such under this section and was constructed after December 31, 1991. "Sales tax revenues" means such tax collections realized under the Virginia Retail Sales and Use Tax Act (§ 58.1-600 et seq.) of this title, as limited herein. "Sales tax revenues" does not include the revenue generated by the one-half percent sales and use tax increase enacted by the 1986 Special Session of the General Assembly which shall be paid to the Transportation Trust Fund as defined in § 33.1-23.03:1, nor shall it include the one percent of the state sales and use tax revenue distributed among the counties and cities of the Commonwealth pursuant to subsection D of § 58.1-638 on the basis of school age population. For a public facility that is a sports facility, "sales tax revenues" shall include such revenues generated by transactions taking place upon the premises of a baseball stadium or structures attached thereto. For a public facility that is a convention center with a hotel which is either adjacent or attached to and is an integral part of such facility. "sales tax revenues" shall include such revenues generated by transactions taking place upon the premises of the convention center or the hotel provided such hotel is either wholly owned by the municipality or is the result of a public-private partnership between the municipality and a private entity. B. Any municipality which has issued bonds (i) after December 31, 1991, but before January 1, 1996, (ii) on or after January 1, 1998, but before July 1, 1999, (iii) on or after January 1, 1999, but before July 1, 2001, (iv) on or after July 1, 2000, but before July 1, 2003, (v) on or after July 1, 2001, but before July 1, 2005, (vi) on or after July 1, 2004, but before July 1, 2007, or (vii) on or after July 1, 2009, but before July 1, 2012-2015, to pay the cost, or portion thereof, of any public facility shall be entitled to all sales tax revenues generated by transactions taking place in such public facility. Such entitlement shall continue for the lifetime of such bonds, which entitlement shall not exceed 35 years, and all such sales tax revenues shall be applied to repayment of the bonds. The State Comptroller 33 shall remit such sales tax revenues to the municipality on a quarterly basis, subject to such reasonable processing delays as may be required by the Department of Taxation to calculate the actual net sales tax revenues derived from the public facility. The State Comptroller shall make such remittances to eligible municipalities, as provided herein, notwithstanding any provisions to the contrary in the Virginia Retail Sales and Use Tax Act (§ 58.1-600 et seq.). No such remittances shall be made until construction is completed and, in the case of a renovation or expansion, until the governing body of the municipality has certified that the renovation or expansion is completed. C. Nothing in this section shall be construed as authorizing the pledging of the faith and credit of the Commonwealth of Virginia, or any of its revenues, for the payment of any bonds. Any appropriation made pursuant to this section shall be made only from sales tax revenues derived from the public facility for which bonds may have been issued to pay the cost, in whole or in part, of such public facility. 34 LEGISLATIVE ITEM 15 PASSING BICYCLES Council Member Bill DeSteph §46.2-839. Passing bicycle, electric personal assistive mobility device, electric power assisted bicycle, moped, animal, or animal -drawn vehicle. Any driver of any vehicle overtaking a bicycle, electric personal assistive mobility device,electric power -assisted bicycle, moped, animal, or animal -drawn vehicle proceeding in the same direction shall pass at a reasonable speed at least twe three feet to the left of the overtaken bicycle, electric personal assistive mobility device, electric power -assisted bicycle, moped, animal, or animal -drawn vehicle and shall not again proceed to the right side of the highway until safely clear of such overtaken bicycle, electric personal assistive mobility device, electric power -assisted bicycle, moped, animal, or animal -drawn vehicle. 35 s ay y ray CITY OF VIRGINIA BEACH \IAGENDA ITEM J ITEM: An Ordinance to Authorize the Acceptance of the Dedication of a 0.57 Acre +/- Parcel of Real Property Located at 1457 Ewell Rd., Owned by WM Jordan Company, Inc., for Use as a Single -Family Dwelling Housing Disabled Individuals MEETING DATE: October 12, 2010 Background: In 2009 Governor Kaine recommended that Southeastern Virginia Training Center ("SEVTC"), a 200 -bed regional facility for individuals with intellectual disabilities in Chesapeake, be closed. The Virginia General Assembly, in response to pressure from parents of SEVTC residents, authorized the downsizing of SEVTC and rebuilding it for the 75 residents in greatest need of institutional care, with the remaining residents being targeted for community placement. The SEVTC rebuilding, acquisition and construction of community homes will be funded with revenue bonds issued by the Commonwealth of Virginia, with $24 million targeted for SEVTC and $8.4 million targeted for community programs (the "Community Funds"). The Commonwealth has entered into an agreement with WM Jordan Company, Inc. ("WM Jordan") under Public Private Education Facilities and Infrastructure Act ("PPEA") where, among other things, WM Jordan will utilize a portion of the Community Funds to (i) acquire the 0.57 acre (+/-) parcel of real property located at 1457 Ewell Road (the "Property"); (ii) rehabilitate the existing house on the Property so it is suitable as a single-family dwelling to be used as housing for disabled individuals; and (iii) after the house is rehabilitated, dedicate the Property to the City of Virginia Beach. Considerations: If the property is accepted by the City, the home will be licensed by the Department of Behavioral Health and Developmental Services as a "single- family dwellings housing disabled individuals," and operated by the Developmental Services Division of the Department of Human Services. As a licensed home serving 8 or fewer people, the home will meet the definition of "family" for purposes of zoning. The home will be equipped with fire suppression equipment. A maximum of five persons will live in the home, and staff will provide supervision around the clock. The title to the Property will be transferred to the City, at no cost, with the stipulation that it be used by the City for the 20 -year term of the tax exempt revenue bonds being issued by the Commonwealth. Public Information: Advertisement of City Council Agenda. • Alternatives: Accept or decline dedication. • Recommendations: Authorize the City Manager to execute the appropriate documents -to accept the dedicated property known as 1457 Ewell Road. • Attachments: Ordinance Location Map Policy Report Recommended Action: Approval Submitting Department/Agency: Department of Human Servic %~j City Manager �� I. 1 AN ORDINANCE TO AUTHORIZE THE 2 ACCEPTANCE OF THE DEDICATION OF A 0.57 3 ACRE +/- PARCEL OF REAL PROPERTY LOCATED 4 AT 1457 EWELL RD., OWNED BY WM JORDAN 5 COMPANY, INC., FOR USE AS A SINGLE-FAMILY 6 DWELLING HOUSING DISABLED INDIVIDUALS 7 8 WHEREAS, The Commonwealth of Virginia has entered into an agreement with 9 WM Jordan Company, Inc. ("WM Jordan") for the acquisition and construction or 10 rehabilitation of homes in the Commonwealth to be used as dwellings for disabled 11 individuals (the "Dwellings"); 12 13 WHEREAS, the Dwellings are needed as a result of the Commonwealth's 14 decision to reduce the size of the Southeastern Virginia Training Center from 200 beds 15 to 75 beds; 16 17 WHEREAS, the Commonwealth and the City of Virginia Beach (the "City") have 18 identified the 0.57 acre (+/-) parcel of real property located at 1457 Ewell Road in the 19 City of Virginia Beach (the "Property") as a suitable location for one of the Dwellings; 20 21 WHEREAS, Using funds received from the Commonwealth, WM Jordan has 22 purchased the Property and will rehabilitate the existing home on the Property to make 23 it suitable for use by the City as one of the Dwellings; 24 25 WHEREAS, after the completion of the rehabilitation of the home on the 26 Property, Jordan proposes to dedicate the Property to the City for use as one of the 27 Dwellings; and 28 29 WHEREAS, acceptance of the dedication of the Property would enable the City 30 to better serve its disabled residents within the City. 31 32 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 33 VIRGINIA BEACH, VIRGINIA: 34 35 1. That the City Council accepts the dedication of the 0.57 acre (+/-) parcel of 36 real property located at 1457 Ewell Road (the "Property") from WM Jordan Company, 37 Inc., so long as the Property is in a condition deemed acceptable by the City Manager 38 for use as a single-family dwelling for use by disabled individuals. 39 40 2. That the City Manager or his designee is further authorized to execute any 41 and all documents necessary or appropriate in connection with the acceptance of the 42 dedication of the Property, so long as such documents are deemed necessary and 43 sufficient by the City Manager and in a form deemed satisfactory by the City Attorney. 44 Adopted by the Council of the City of Virginia Beach, Virginia, on the day 45 of '2010. APPROVED A' TO LEGAL SUFFICIENCY AND FORM i City Attorney APPROVED AS TO CONTENT Department of Human S ices CA11649 \\vbgov.com\DFSt \Application:,\CityLawProdkycom32\Wpd=\D027\P007\00073004. DOC R-1 October 1, 2010 LL Al go Z IL ri 40 4(tw T`7 1p N)e it �Aa A HOME AT 1457 EWELL ROAD TO BE USED AS A GROUP HOME. (City of Virginia Beach participation in the state initiative to downsize Southeastern Virginia Training Center) BACKGROUND A. System Service History Until the 1960s, most citizens of'Virginia with intellectual disabiiities (1D) were served in large state institutions located in Petersburg and Lynchburg. In the late 1960s, legislation was passed estabiishing Community Services Boards (CSB) and the Virginia Beach CSB was established by City Council in 1.970. During that time frame, the Tidewater Association of Retarded Children 1was the primary regional/local provider of early intervention, .educational, and adult services. In 1974, a; regional facility was constructed by the State in Chesapeake to serve 200 individuals and its initial function was -to prepare residents to returnto their home communities. In conjunction with the opening of Southeastern Virginia Training Center (SEVTC), community services were initiated by -the Virginia Beach -,',".SB focusing on service for infants, toddlers, and young adults finishing theirspeciai education services in the public school system that was now mandated to provide special education. to all eligibie children. During the following decade, individuals able to participate in community'life were discharged to their respective communities. The population at SEVTC has gradually changed and by the beginning of the new century, many residents at SEVTC were eithertoo medically fragile to be placed in the community orhad behaviors that made them a risk to themselves or others in the community settings. On a nationallevel, states were closing most of their larger facilities and utilizing funding to provide community services to even the most chailenging individuals in their service system. Virginia traditionally has ranked 47 in per capita funding for community ID services and as a result, community service initiatives were more difficult to implement, and the more Idifficult to serve individuals remained in state facilities. Despite these impediments to community service, the Virginia Beach CSB successfully reintegrated many of its institutional residents and developed new innovative resources for its medically fragile citizens. By 2010, there was only one Virginia Beach resident at Central Virginia 9!24/2010 Training Center in Lynchburg, 18 residents at SouthsideVrginia Training Center in Petersburg., and 25 Virginia Beach residents in SEVTC in Chesapeake. The Developmental Services (DS) Division of the Department of Human Services (DHS) now serves more than 1200 individuals annually, most of them having been educated in the Virginia Public School systems and raised at home with theirfam`iiies in Virginia Beach. B. Project Overview In 2009Governor !Caine recommended that SEVTC in Chesapeake be closed. This recommendation was consistent with the :national trend to provide services for individuals with ID in theirhome communities. The irginia-General Assembly, in:response to pressure from parents of SEVTC residents, authorized the downsizing of SEVTC and rebuilding. it for the 75 residents with the greatest neer} of institutional .care. The remaining residents would be targeted for community placement. Construction of both the SEVTC rebuilding and community homes would be funded with State revenue bonds., $24 million targeted for SEVTC and $8.3 million targeted for community programs. Twenty- five of the residents at SEVTC were referred to the facility by Virginia Beach DHS- and the expectation is for these individuals to return to,their home community. According to the State revenue bond regulations the owner:of°the community residence homes must_ be a public .entity, and under a Public=Private Education Facilities and Infrastructure Act agreement with the Commonwealth of Virginia, WM Jordan was awarded a contract for both the SEVTC rebuilding and the development of the community residences. The community component includes the purchase of orconstruction of six Medicaid waiver group homes in the region. These homes Would be given to participating CSBs and would be used as Medicaid waiver group homes for individuals returning to their home communities from. SEVTC and community group homes. One of the: community group homes was targeted for development in Virginia Beach -.-at. 4457 Ewell Road. This property has been purchased by VVM Jordan and is presently being renovated into a five bedroom home under the direction.of the State Department of General Services (DGS). C. Group Home Financing Model Background. A five year cost projection for the Ewell:Road group home has:been prepared based on the long-standing experience of the DS Division of DHS in operating four and five bedroom group homes. The division currently operates five group homes with a total -of 22 beds. The first year of the five year cost projection is based on occupancy of the Ewell Road home on February 1, 2011. The admission:process for the five residents would be staggered over the course of the month :of February. The five 9124/20/0 year projection includes five months of operation in FY11; and a'full 12 rnonths of operation for FY12 through FY15. (Unlike the intermediate care facilities which are self-supporting based on retrospective reimbursements, waiver group homes operated by the DS Division require a subsidy of state, local and other funds in addition to self -pay client fees and Medicaid waiver reimbursements to cover total annual personnel and operating costs. The required subsidy -to fully fund [:-well Road will make it necessaiy to close one of the four bed group .homes. The home that has been selected to be closed is Reasor group home. The four residents living at Reasor will be placed in other group homes that are:operated by licensed private providers. 2. l=inancing "rhe primary funding source for group homes operated by the DS Division is Medicaid waiver fees from the; Department of Medical Assistance :services .(DMAS). Home and Community Services—1915.(c) Waivers are optional programs that afford states the flexibility to develop and implement alternatives to institutionalization for target:populations (aged, disabled, and intellectual disabilities). Waivers are a partnership between a family support system and Medicaid service providers to safely support pan individual iiving in the community who might otherwise reside in an institution. One of the Home and Community Waiver services is: congregate residential support. Congregate residential or "group home residential service" is a service providing 24 hour.supervision in a community-based, home -like dwelling.. These services are provided for individuals needing assistance, counseling, and training in activities of daily living as identified in their individual. service plan. The current Medicaid waiver reimbursement rate for one hour -of congregate service is $15.1D. Billable hours are limited to those Hours when staff members provide assistance to the residents. The average annual Medicaid waiver billing is over $65,000 per resident, depending upon the resident's individual service plan. The FY12 Medicaid waiver reimbursement projection for five residents at the Ewell Road group home is $326,820. Residents pay a monthly fee ,of $590.00 for room and board. This fee is approved by the Virginia Beach CSB. The FY12 Self -pay Client Fee projection is $34;692. The combined revenue from these sources is $361,512. The estimated total costto operate Ewell Road in FY12 is 1 75,771. Therefore, a total of $114,259 -is needed instate, local and other funds to subsidize the revenue that is obtained from Medicaid waiver reimbursements and self -pay clientfees. 9/24/2010 3 Exhibit 1, Ewell RoadGroup Home Five Year Cost Projection, portrays a five year projection of expenditures and revenues for Ewell Road if the Reasor group home is closed on June 30, 2011. In this scenario, full-time and part-time staff would be transferred from Reasorto Ewell Road., and no new Full-time 'Equivalents (FTEs) would be required to operate Ewell Road.. Because there is no funding available to subsidize the FYI Self - Pay Client Fees and Medicaid Waiver reimbursements during the first year, the FYI Ewell Road operation is projected to have a deficit of $90,743. Once Reasor is closed, state, local and other funds would be transferred to the Ewell Road budget. These funds would help fully cover the estimated costs of Ewell Road during the period FYI FYI 5: _ 3. Operations FY11 - The DS Division would use existing group home staff to operate the new Ewell Road group home. No new FTEs would be needed to staff Ewell Road. A total of:six full-time and two part-time City employees would be transferred to the new home. It would be necessary to hire eight ARVON contract manpower :FTEs to staff Reasor until it is closed .on. June 3Q,2011. The following is a brief summary of the assumptions related to the estimated FYI expenditures and projectedrevenues included in the attached exhibit -for the. period January through June 2011. • Eight contract manpower MH/MR Assistants -would be hired in. January to staff the Reasor group home when full-time and part-time City staff are transferred to Ewell Road An additional $2.5,506 would be included in the contract manpower estimate to cover staffing contingencies during February through June 20'11 • One van with a wheelchair lift would be purchased • A Motor Poof vehicle would be used and paid for until the van is delivered • One: desktop computer and one :laptop would be purchased • The installation of all required telecommunication and cable systems for two telephones, two telephone lines, cable 'TV and WAN would be completed and paid for in FYI • One portable ARJO lift with accessories would: be- purchased • New appliances (stove, refrigerator,. microwave, dishwasher, washer, and dryer) would be purchased and installed Projected revenues from Client Fees and Medicaid Waiver reimbursements reflectthe staggered admission schedule in February. State, local and other revenues in -the FY11 Supportive Living Programs (SLP) -Homes- budget are needed to continue operating Reasor group home until the end of June. This revenue would be transferred to the 9/24/2010 4 finding base for Ewell Road in July 2011. The FYI Ewell Road deficit is projected to be $90,743. F"Y12 FY15 - The following>is a brief summary of the assumptions about the estimated costs and projected revenues (also on. Exhibit 1) for the four years following the start=up year in FY11.. • Salaries would remain flat. in FY12, and then increase by 3% in FYI 3, FY14 and FY15 • Fringe benefits would increase proportionately during FY13 — FY15 • Operating costs would increase by 2% each year beginning in FYI • Rental expense would not be included in the SLP=Homes budget for Ewell Road • An annual escrow account payment would not be included in the SLP - Homes budget to pay for the eventual replacement of the HVAC system,. roof, or other major repairs that may need to be made at Ewell Road in future years • Self -pay client fees would increase slightly in FY14 • Medicaid waiver reirnbursements would remain flat during the entire five year period 7-he:operation of the Ewell Road group home in FY12 would require a subsidy of more than $114,000 to cover total personnel and operating costs. The required subsidy would increase to over $152;000 by FY15.. CONSIDERAnoims It is requested that the City consider accepting the home at 1457 Ewell Road in Thoroughgood purchased and renovated by WM Jordan with funding from its contract with DGS to be operated as a five person group home for Virginia Beach residents returning from SEVTC. The Virginia Beach DHS is the lead agency for this project. The decision makers at the local level approving this project are the City's SPREAD Committee, the City Manager and City Councll. The CSB, in its administrative capacity, has been kept informed of project details since its inception by lead agency, staff. Ektemal stakeholders include families of residents targeted for placement in the home and residents of the neighborhood in which the home would be located. There are a number of issues to be considered by the City in evaluating this project, including: 1. The City's mission to be a community for a lifetime for its residents. 2. The City's responsibility -for cooperating with the State Department of Behavioral Health and Developmental Services (DBHDS) in developing resources for 9124(2010 Virginia Beach residents returning to their own communities as .a result of the SEVTC downsizing. These individuals had initially been referred to SEVTC by the Virginia Beach CSB when local resources were found to be insufficient to provide these individuals with needed supports and services. 3. The City would. receive a giftof a 5 -bedroom home estimated .at .$380,000 available for .individuals returning from SEVTC and for future generations of Virginia Beach residerits with .similar needs. Although the home at 145.7 Ewell Road would be fully renovated and in prime condition upon receipt by the City, there would be property maintenance costs projected at $2,412 per year. 4_ Medicaid waiver fu.nds are the funding source of this program but .historically have been inadequate to support the level of support required by high need individuals. There would be operational costs to run the program as described above (page 4, number 3). 5: Integration of the home in the Thoroughgood neighborhood. ALTERNATIVES 1. Add New Home but Close Reasor Home: This alternative would allow SLP to replace one existing rental home with one fully paid for and would involve a savings of approximately $35;000 in rental payments per yearAt would also eliminate the need for new .FTEs since City positions would be transferred to the Ewell Road home. The primary negative aspect of this model is the discharge of the four consumers presently being served in Reason and their placement with Private providers that do not offer the same level:of care as a City operated program 2 Contract Service -to a Private Providen The advantage of this model.is:that there would:not be a cost to the City other than maintenance. The negatives are many including the difficulty in identifying a high quality provider, the inadequacy of the existing waiver rate to cover all program costs and the City's responsibility in insuring that the provider is a good neighbor in the community. Typically, inadequate reimbursement gets translated into fewer support services for consumers and lower quality care, a phenomenon frequently observed in the private provider community. 3. NotAccepting the Home: Non -participation in the project would break the trust and -partnership that has existed with the State for the past 40 years between .the Virginia Beach CSB and 'the State DBHDS. Given the legislation passed by the General Assembly, SEVTC is only being built for 75 individuals., about 35% of its original capacity. There are:no other options for discharged -SEVTC residents other than community residential alternatives and the revenue bond regulations require that only public entities own the properties purchased or renovated. 9/24/2010 6 RECOMMENDATIONS Given the challenges being faced by Virginia Beach local government to sustain existing services in the present fiscal environment, Alternative 1 is the most viable alternative and the DHS recommendation. The City's SLP -Home program has a reputation for providing high quality %care, something that is required by the high -need individuals returning to the community from an institutional setting. If the City decides to make the: commitment to accept the home, it should be with the intent to offer the highest quality service possible. Exhibit (1) enclosed Prepared By: 47Jay Lazier, Date Division Director, Developmental Services Human Services 0'A i obertMorin, Director Date Human Services Reviewed By: City Attorney Date )f ) J f. r4 / Susie Walston, Deputy City [Manager Approved By: � c,`Z7,f 16, Date CityNanager ", Dite 9/24/2010 7 17-001 Pr1DJeeiad Revenues 1 1.39.373.1 430,949.1 432;149 1 433.372 1 434:621.11 Surplus/(Defrcl0 (9DJ43) (44;623) (56,279) (68;080) Note., The defn* that is shown trFYI1 may be reduced by:mbcating the Reasorgmup.home residents es soon. as possible rattw then waging untirMaylJune 2011. The deft that is shown for each of the foursubaequent fiscal yearn in this eshtbit will be oHsat by City general funds fiat vel be nwIlocated to Ewell Road fmm Reason. Exho Revenue Code Revenue Account Description FYi1 Projected "Revenue FY12 Projected Revenue FY13 Projected Revenue FYT4 !Projected Revenue' FY75 Projected Revenue .415047 Self-P.W. heniFees 13.010 34.69' 34,692 3508 35;868 22056 Stale General Funds 0 61 X97 63,198 63.245 64,494 422063 Medicaid SPO 0 7,439 7,439 7,439 7;439. L4 422092 Medicaid Waiver 126;363 328,820 326;820 326,620 '326;820 450001 CityGeneral Funds 0 =0 0 0 1 0 17-001 Pr1DJeeiad Revenues 1 1.39.373.1 430,949.1 432;149 1 433.372 1 434:621.11 Surplus/(Defrcl0 (9DJ43) (44;623) (56,279) (68;080) Note., The defn* that is shown trFYI1 may be reduced by:mbcating the Reasorgmup.home residents es soon. as possible rattw then waging untirMaylJune 2011. The deft that is shown for each of the foursubaequent fiscal yearn in this eshtbit will be oHsat by City general funds fiat vel be nwIlocated to Ewell Road fmm Reason. Exho �U °Etc s CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Transfer Funds from CIP #3-299 Workforce Release Facility Design and Site Selection to the Sheriffs Office Inmate Services Special Revenue Fund Reserve for Contingencies MEETING DATE: October 12, 2010 ■ Background: The Sheriffs Office began CIP #3-299, Sheriffs Workforce/Release Facility -Design & Site Selection, in FY 2006-07. This facility was to be built for the purpose of housing work release inmates as well as providing a facility for the Sheriffs Workforce. City Council appropriated a total of $600,000 for this capital project. Of the total, $500,000 came from the Sheriffs Office Inmate Services Special Revenue Fund- Fund Balance, and $100,000 came from the Sheriffs Office Special Revenue Fund -Fund Balance. The Design and Site Selection was planned to be the first phase of a larger project. As a result of inmate population not growing as planned and the inability to locate additional funding, the project of designing and selecting a site for the Sheriffs Workforce/Release Facility was never fully completed. The CIP has $377,518 in remaining, unexpended funds. ■ Considerations: The majority of the funding for CIP #3-299 originated from the Sheriffs Office Inmate Services Special Revenue Fund- Fund Balance. The Sheriffs Office Inmate Services Fund is to be used for the purpose of directly benefiting inmates of the jail. Therefore, it has been deemed appropriate that the remaining $377,518 should be returned to the Sheriffs Office Inmate Services Fund. ■ Public Information: Public information will be handled through the normal agenda process. ■ Recommendations: It is recommended that City Council approve the transfer. ■ Attachments: Ordinance Recommended Action: Approval of Ordinance Submitting Department/Agency: Management Service l/ City Manager. V : W1,1, 1 AN ORDINANCE TO TRANSFER FUNDS FROM CIP 2 # 3-299 WORKFORCE RELEASE FACILITY DESIGN 3 AND SITE SELECTION TO THE SHERIFF'S OFFICE 4 INMATE SERVICES SPECIAL REVENUE FUND 5 RESERVE FOR CONTINGENCIES 6 7 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: 8 9 That $377,518 is hereby transferred from CIP # 3-299 Workforce Release Facility 10 Design and Site Selection to the FY 2010-11 Sheriffs Office Inmate Services Fund 11 Reserves for Contingencies. Adopted by the Council of the City of Virginia Beach, Virginia on the day of , 2010. Approved as to Content: Approved as to Legal Sufficiency: Ao 17 )ze' Manage men :iervices r ey's Office CA11620 R-2 September 29, 2010 u s� y2 CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Transfer Funds from the Reserve for Contingencies to the FY 2010-11 Operating Budget of the City Attorney for the Purpose of Engaging the Services of an Election Specialist to Assist in Redrawing the Boundary Lines of the City's Seven Residence Districts MEETING DATE: October 12, 2010 ■ Background: Under the City Charter Section 3.01, the City of Virginia Beach is required to consist of seven evenly populated residence districts. The Virginia Constitution requires localities to reapportion local election districts after the decennial census. It is anticipated that in early spring 2011, the Census Bureau will release the results of the 2010 U.S. Census. After the Census numbers are provided and before the following election, the City of Virginia Beach will need to redraw the boundary lines of the residence districts to ensure they are evenly populated. ■ Considerations: The Office of the City Attorney engaged the services of an election specialist for the redistricting in 1996 and the reapportionment in 2000. For the upcoming reapportionment, the City Attorney's Office requests this transfer of funds to accomplish the mandatory redrawing of the boundary lines of the City's seven residence districts and approval by the U.S. Department of Justice of those lines pursuant to the Voting Rights Act. It is estimated that these services can be performed for a cost of $200,000. There is adequate funding in the City of Virginia Beach's FY 2010-11 Reserve for Contingencies to cover the cost of service. If the transfer is approved, the balance of the Reserve for Contingencies will be $ 961,468. ■ Public Information: Public information will be provided through the normal Council Agenda process. ■ Recommendations: It is recommended that City Council approve this transfer. ■ Attachments: Ordinance Recommended Action: Approval Submitting Department/Agency: Office of the City Attorney$4— City Manager: �, . V6, 1 AN ORDINANCE TO TRANSFER FUNDS FROM THE 2 RESERVE FOR CONTINGENCIES TO THE FY 2010-11 3 OPERATING BUDGET OF THE CITY ATTORNEY FOR THE 4 PURPOSE OF ENGAGING THE SERVICES OF AN 5 ELECTION SPECIALIST TO ASSIST IN REDRAWING THE 6 BOUNDARY LINES OF THE CITY'S SEVEN RESIDENCE 7 DISTRICTS 8 9 WHEREAS, in the spring of 2011, the Census Bureau will provide the 10 Commonwealth of Virginia the results of the 2010 Census to enable the Commonwealth to 11 redraw the boundaries of existing election districts; 12 13 WHEREAS, shortly thereafter, the City of Virginia Beach must use the results of the 14 2000 Census to redraw the boundaries of its seven residence districts to ensure that they 15 remain approximately equal in population; 16 17 WHEREAS, the assistance of an election specialist is necessary to properly analyze 18 the results of the 2010 Census and redraw the boundaries of the seven residence districts 19 in a manner which will comply with the Voting Rights Act and approved by the U.S. 20 Department of Justice; and 21 22 WHEREAS, the City Attorney has estimated that the total cost for the services of an 23 election specialist will be approximately $200,000. 24 25 NOW, THEREFORE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 26 VIRGINIA BEACH, VIRGINIA: 27 28 That $200,000 is hereby transferred from the Reserve for Contingencies to the FY 29 2010-11 Operating Budget of the City Attorney for the purpose of engaging the services of 30 an election specialist to assist in the redrawing the boundary lines of the City's seven 31 residence districts. Adopted by the Council of the City of Virginia Beach, Virginia on the day of 2010. Approved as to Content: c \ l Management Services CA11621 R-2 September 29, 2010 Approved as to Legal Sufficiency: O(� - IOffice CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Transfer Funds from the General Fund Reserve for Contingencies to the FY 2010-2011 Operating Budget of the Department of Housing and Neighborhood Preservation to Enhance Efforts for the Homeless MEETING DATE: October 12, 2010 ■ Background: In August, City Council requested public input and staff recommendations regarding enhanced funding for homelessness. On September 28, following staff's briefing and recommendations, Council directed staff to transfer General Fund, Reserve for Contingencies as follows: • $25,000 for basic living assistance, including medical, dental, pharmaceutical assistance, identification, transportation, and daily living supplies; • $50,000 for assistance with medical issues, including assistance with supplies, recovery, short-term housing, and transportation; and • $100,000 for assistance with the regional project to develop a "Healing Place" for planning, securing land, and related activities to help the project progress. ■ Considerations: The Department of Housing and Neighborhood Preservation will consult with a stakeholder committee in regard to the use of the basic living assistance and medical assistance funding. Funding for the "Healing Place" will be based on actual requests received from the Planning Council, acting on behalf of the "Regional Task Force for Ending Homelessness." Funding .is currently available in the FY 2010-11 General Fund, Reserve for Contingencies, and the remaining balance will be $786,468 after this transfer of appropriations. This total was calculated based on the current $1,161,468 in the Reserve for Contingencies minus the amounts transferred by this ordinance as well as the redistricting funding ordinance, which is also part of the October 12, 2010 Council Agenda. ■ Public Information: The City Council direction on the use of the $175,000 was the subject of an article in the Virginian -Pilot on Wednesday, September 29th. Key stakeholders received an email regarding this on that date as well. In addition, the normal public information process for Council agenda items will be followed. ■ Recommendation: Approval of the attached ordinance. ■ Attachments: Ordinance; staf )mmendation from September 28 briefin Recommended Action: Approva Submitting Department: Departme ousing and Neighborhood Preservation City Manager k, 1 2 3 4 5 6 7 8 9 10 11 12 13 AN ORDINANCE TO TRANSFER FUNDS FROM THE GENERAL FUND RESERVE FOR CONTINGENCIES TO THE FY 2010-11 OPERATING BUDGET OF THE DEPARTMENT OF HOUSING AND NEIGHBORHOOD PRESERVATION TO ENHANCE EFFORTS FOR THE HOMELESS BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: That $175,000 is hereby transferred from the General Fund Reserve for Contingencies to the FY 2010-11 Operating Budget of the Housing and Neighborhood Preservation to enhance efforts for the homeless. Adopted by the Council of the City of Virginia Beach, Virginia, on the day of , 2010. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: .D &"j o, �A Management Services CA11622 R-2 September 30, 2010 4itrAirWey's Office Ln Ln w Ln Ln E O Z O 4— Lnw i O cu DC cu V f6 W a 614, cc 0 • cc mCA � ... w cp C . "w- .- t4-1 "' C 0 E 5 cL ,a c Cu C C. 0 CL u— c LL c m a► CD 0 CU CL W cz 614, cc 0 cc mCA � ... w cp C . "w- .- t4-1 "' C 0 E 5 cL ,a c Cu C C. 0 CL u— c LL c m K. PLANNING 1. Application of S. DAWSON and SUSAN P. STERLING for a Nonconforming Use re expansion of an existing dwelling at 801 Baltic Avenue (deferred indefinitely 9/28/10) (DISTRICT 6 — BEACH) RECOMMENDATION DEFER TO 10/26/10 2. Application of VIRGINIA BEACH RAQUET CLUB NORTH ASSOCIATES for Modification of Conditions re proposals for improvements at the indoor and outdoor tennis courts and restrictions on the temporary inflatable covers at 1950 Thomas Bishop Lane (DISTRICT 5 — LYNNHAVEN) RECOMMENDATION APPROVAL 3. Application of NEW CINGULAR WIRELESS PCS, LLC and CITY OF VIRGINIA BEACH for a Conditional Use Permit re a communications tower at 1900 Sandbridge Road (DISTRICT 7 — PRINCESS ANNE) RECOMMENDATION APPROVAL 4. Application of KROGER LIMITED PARTNERSHIP I for a Conditional Use Permit re automobile service and fuel station at 1800 Republic Road (DISTRICT 6 — BEACH) RECOMMENDATION APPROVAL 5. Application of OLD DOMINION SOCCER CLUB (ODSC) and BROOK BAPTIST CHURCH for a Conditional Use Permit re use of church's open space for lighted Soccer fields at 4397 Wishart Road (Deferred 8/11/10) (DISTRICT 4 — BAYSIDE) RECOMMENDATION APPROVAL NOTICE OF PUBLIC HEARING Virginia Beach City Council will meet in the Chamber at City Hall, Municipal Center, 2401 Courthouse Drive, Tuesday, October 12, 2010, at 6:00 p.m. The following applications will be heard: PRINCESS ANNE DISTRICT New Cingular Wireless PCS, LLC/City of Virginia Beach Application: Conditional Use Permit for a communications tower at 1900 Sandbridge Road (GPIN 2414412649). BEACH DISTRICT Kroger Limited Partnership I Application: Conditional Use Permit for an automobile service station/fuel sales at 1800 Republic Road (GPIN 2407691178). S. Dawson & Susan P. Sterling Application: Nonconforming Use at 801 Baltic Avenue (GPIN 2427133700). LYNNHAVEN DISTRICT Virginia Beach Racquet Club North Associates Application: Modification of Conditions at 1950 Thomas Bishop Lane. (GPIN 1499567123;1499568379). SAYSIDE DISTRICT Old Dominion Soccer Club (ODSC)/Brook Baptist Church, Application: Conditional Use Permit for an outdoor recreational facility at 4397 Wishart Road (GPIN 1478765206). Deferred on August 11, 2010. All interested parties 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 http://www.vbgov.com/pc For information call 385-4621. If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 385-4303. BEACON: Sept 26 & Oct 3, 2010 Item V -L.1. PLANNING ITEM # 60317 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council DEFERRED INDEFINITELY, BY CONSENT, application of S. DAWSON and SUSAN P. STERLING for a Nonconforming Use to allow for an expansion of their existing dwelling at 801 Baltic Avenue. BEACH — DISTRICT 6 Application of S. DAWSON and SUSAN P. STERLING for a Nonconforming Use to allow for an expansion of their existing dwelling at 801 Baltic Avenue (GPIN #2427133700) BEACH— DISTRICT 6 Voting: 10-0 (By Consent) Council Members Voting Aye: Rita Sweet Bellitto, 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: Glenn R. Davis September 28, 2010 P - Cl LV to 5 r i �0,10 - t f J � s L if G r� f. —.f 1 1 Y—E to �h �J CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: A Resolution Authorizing the Conversion of a Nonconforming Use on Property Located at 801 Baltic Avenue for S. Dawson and Susan P. Sterling, 801 Baltic Avenue (GPIN 2427133700). BEACH DISTRICT. MEETING DATE: October 12, 2010 ■ Background: The applicants request a change of a nonconforming use to allow an expansion of their existing dwelling. ■ Considerations: Staff did not receive revised designs by the deadline. The purpose of the deferral is redesign the structure to comply with Old Beach Guidelines and discuss with the adjacent property owners. ■ Recommendations: Staff recommends deferral to the October 26, 2010 City Council Agenda. ■ Attachments: Location Map Recommended Action: Deferral. Submitting De en ncy: Planning Department 14y Manage `70C t--, Karen Prochilo Subject: FW: Sterling Importance: High From: Faith Christie Sent: Monday, September 27, 2010 9:27 AM To: Jan Anderson Cc: Karen Prochilo Subject: RE: Sterling Importance: High Good Morning Jan, Since I did not receive the new designs by the deadline of September 21St, the request cannot be heard by the Council on October 12th. Please advise of your client's intentions. Faith Christie, CZA, CBO Planner, City of Virginia Beach 2405 Courthouse Drive, Room 115 Virginia Beach, VA 23456 757-385-6379 From: Faith Christie Sent: Monday, September 13, 2010 1:16 PM To: Jan Anderson Subject: Sterling I think if you go back and take a look at the houses — maybe redesign them to comply with the Old Beach Design guidelines that would be helpful. I think you are correct in that it doesn't appear that anything you would propose will satisfy the neighbors. Sometimes that is just the way it is. Anyway, I'll move the request to the October 12 CC agenda. I'll need the new design no later than September 21. thanks Faith Christie, CZA, CBO Planner, City of Virginia Beach 2405 Courthouse Drive, Room 115 Virginia Beach, VA 23456 757-385-6379 - 9 - Item II -I.2. PLANNING ITEM # 25338 Attorney Grover Wright represented the applicant and presented City Council with a packet of information containing a letter from Dr. Harvey H. Shiflet, a principal in the Virginia Beach Racquet Club North Associates, outlining additional conditions which said applicant voluntarily proffered. A petition in favor of said application was also enclosed. (Said information is hereby made a part of the record) After the conditions were proffered, the following withdrew their OPPOSITION: Nina Austin Jeffrey Bergman Bob Briner Gregory M. Frech Upon motion by Councilman Fentress, seconded by Councilwoman Creech, City Council ADOPTED an Ordinance upon application of VIRGINIA BEACH RACQUET CLUB NORTH ASSOCIATES for a Conditional Use Permit: ORDINANCE UPON APPLICATION OF VIRGINIA BEACH RACQUET CLUB NORTH ASSOCIATES FOR A CONDITIONAL USE PERMIT FOR FOURTEEN (14) ADDITIONAL TENNIS COURTS R0586828 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of Virginia Beach Racquet Club North Associates for a Conditional use Permit for 14 additional tennis courts on certain property located on the east side of Thomas Bishop Lane, 540 feet more or less north of Great Neck Road. Said parcel contains 12.142 acres. Plats with more detailed information are available in the Department of Planning. LYNNHAVEN BOROUGH. The following conditions shall be required: 1. The twelve (12) tennis courts, which will be built on open space on the three acres on the northern side of the property, abutting Lots 14 through 16 on the east side on the Meadow Ridge plat will never be lighted for night use. 2. The property adjoining the court areas will be restricted to motor vehicles. 3. The tennis courts adjacent to the houses will be bermed and landscaped. This Ordinance shall be effective upon the date of adoption. Adopted by the Council of the City of Virignia Beach, Virginia, on the Fifth day of May, Nineteen Hundred and Eighty-six. Mav 5. 1986 -10 - Item II -I.2 PLANNIW ITEM # 25338 (Continued) Voting: 9-0 Council Members Voting Aye: John A.. Baum, Nancy A. Creech, Robert E. Fentress, Mayor Harold Heischober, Barbara M. Henley, Louis R. Jones, Vice Mayor Reba S. McClauan, J. Henry McCoy, Jr., D.D.S. and Meyers E. Oberndorf Council Members Voting Nay: None Council Members Abstaining: H Jack Jennings, Jr. and Robert G. Jones Council Members Absent: None May 5, 1986 2 CIN OF VIRGINIA BEACH AGENDA ITEM ITEM: VIRGINIA BEACH RACQUET CLUB NORTH ASSOCIATES, Modification of Conditions. 1950 Thomas Bishop Lane. (GPIN 1499567123; 1499568379). LYNNHAVEN DISTRICT. MEETING DATE: October 12, 2010 ■ Background: According to the applicant, the existing structure that covers 6 tennis courts located on the west side of Thomas Bishop Lane has exhausted its useful life. The applicant proposes to dismantle and remove the structure and replace it with either one or several temporary inflatable structures to keep the existing six courts protected from the elements through the winter. The plan is that on or after April 30, 2011, these courts will be converted to strictly outdoor play. The applicant also requests to add lighting to some of the existing outdoor courts to the property on the east side of Thomas Bishop Lane, specifically to add lights to 10 existing outdoor courts and to construct 2 additional lit courts, for a total of 12 outdoor, lighted courts. Five new junior practice courts and 65 new parking spaces are also proposed. Applicable landscaping requirements related to any new parking spaces will be reviewed during site plan review. The third request involves the construction of a new 81,950 square foot, indoor tennis building on the east side of Thomas Bishop Lane. The building is proposed to be located along the southern property line, with dimensions of 513 feet by 150 feet. This indoor tennis facility will house 10 tennis courts, spectator seating and concessions. The building will have 35 foot high exterior walls with a roof peak of 42 feet, requiring a Board of Zoning Appeals variance. The roof is proposed with a very gentle slope at a 1:12 pitch. The facades are typical of a large metal building, however, the facade facing Thomas Bishop Lane is proposed with some exterior material upgrades including the use of fiber cement panels simulating lap board siding, cedar shakes and CMU blocks at the bottom of the fagade. The exact color scheme has not been finalized but the applicant has indicated that earth tones are proposed. Although building signage is depicted on the building, the Zoning Ordinance does not allow signage, freestanding or otherwise, for commercial uses in residentially zoned districts. In addition to the indoor structure, a 5,000 square foot storage building will also be constructed at the time the indoor tennis building is built. Virginia Beach Racquet Club North Associates Page 2 of 4 The result of this request would be 39 tennis courts on the main property on the east side of Thomas Bishop Lane (18 outdoor lighted courts, 11 outdoor unlit courts, and 10 indoor courts) and 6 outdoor courts on the west side of Thomas Bishop Lane. ■ Considerations: As the applicant proposes to dismantle and remove the inflatable indoor tennis structure on the west property by April 30, 2011. Staffs position is that it is acceptable that either one or several temporary inflatable structures are allowed to keep the existing 6 courts protected from the elements through the winter. As such, Staff recommends a condition outlining the time frame for removal of any temporary replacement structure(s). The east property, or the club's main property, is proposed with several modifications: additional lighting for 10 existing outdoor courts, construction of 7 additional outdoor courts (2 with lights), additional parking and an 82,000 square foot indoor tennis facility with 10 courts. The total number of courts proposed on this eastern site is 39. The large building with dimensions of roughly 515 feet by 150 feet is proposed along the southern property line, adjacent to an existing water tower and the John B. Dey Elementary School. The Virginia Beach Racquet Club has been at this location since the 1970s. Changes to the club have occurred over the years as modifications and expansions were requested and approved by the City Council in 1978, 1983 and 1986. The applicant feels that the proposed improvements will encourage additional year round play, provide higher quality tournaments, and increase use by tennis players traveling to and through Virginia Beach. The result will be 39 tennis courts on the main property on the east side of Thomas Bishop Lane (18 outdoor lighted courts, 11 outdoor unlit courts, and 10 indoor courts) and 6 outdoor courts on the west side of Thomas Bishop Lane. The applicant met with adjacent property owners to review the proposed modifications. Adjustments to this original proposal have been made to accommodate concerns of adjacent property owners. For example, no additional lights will be added to existing courts immediately adjacent to properties that are addressed on Thomas Bishop Lane; 2 new lighted courts along the eastern property line were shifted to the south to increase the separation between the proposed courts and an existing dwelling; the applicant agreed to install additional evergreen vegetation to enhance the existing buffer along the southern property line of 1900 Thomas Bishop Court; and, the applicant agreed that the additional lights would be turned off by 10:00 p.m. The proposed new lights are box style that allow only minimal spillover and are similar to the lighting systems at the Princess Anne Country Club and the Greenbrier Country Club, both of which are located in residential settings. The outdoor lights proposed are an Virginia Beach Racquet Club North Associates Page 3 of 4 improvement above the old technology of the existing 30 year old lights currently at the club. Staff recommends approval of this requested modification, as conditioned below. Per the Planning Commission's request, the elevations have been revised. There was no opposition to the request. ■ Recommendations: The Planning Commission, passing a motion by a recorded vote of 10-0, recommends approval of this request to the City Council with the following conditions: 1. The indoor door tennis facility shall be constructed only at the location depicted on the exhibit referenced in condition 2 below and in substantial conformance with the elevations entitled, "New Court Facility for Virginia Beach Tennis and Country Club," prepared by Covington, Hendrix Anderson Architects, dated 08/13/10, which has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. The exterior building color scheme shall be limited to earth tones. 2. Any additional buildings, tennis courts and/or lighting not on the property located at 1950 Thomas Bishop Lane as of August 1, 2010, shall be constructed substantially in conformance with the improvements indicated on the exhibit entitled, "Use Permit Exhibit — Revised, Virginia Beach Tennis & Country Club," prepared by Martin Engineering, dated 08/16/10, which has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. 3. The additional lights as depicted on the exhibit referenced in condition 2 above shall be turned off by 10:00 p.m. 4. A single temporary structure or structures are permitted to be constructed at 1951 Thomas Bishop Lane in order to replace the existing inflatable, indoor tennis structure solely for protection from the elements during the winter 2010- 2011 season. On or before April 30, 2011, any temporary structure(s) on this property shall be removed. Subsequent to May 1, 2011, the club's property on the west side of Thomas Bishop Lane shall be limited to: 6 outdoor tennis courts, parking in number and configuration as of August 1, 2010, and change -over player seating. Lights on these courts shall be prohibited. 5. An additional row of large evergreen shrubs, installed consistent with standards set forth in the Virginia Beach Landscaping Guide, shall be installed on the club's property along the southern property line as shown on the exhibit referenced in condition 2 above. Said landscaping shall be depicted on the final site plan and approved by staff prior to approval of the site plan. The existing Virginia Beach Racquet Club North Associates Page 4 of 4 site plan and approved by staff prior to approval of the site plan. The existing wooded area on the club's property in this vicinity shall remain intact as shown on said plan and shall also be depicted as part of the tree protection strategy on the site plan and/or on the erosion and sedimentation plan. 6. Interior parking lot and streetscape landscaping shall be installed as required by City ordinances and consistent with the standards set forth in the Virginia Beach Landscaping Guide. 7. Consistent with the Zoning Ordinance, no signage, freestanding, on the building or otherwise, shall be permitted on the site. ■ Attachrnents: Staff Review, Disclosure Statements and Revised Building Elevations Minutes of Planning Commission Hearing Location Map Recommended) Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Department City Manager:' lL, Iro% 1-3 R40 Ire Airgiruia Beach Racquet (inb NorthAssociates AWfikation of Conditions 7 September 8, 2010 Public Hearing APPLICANT & PROPERTY OWNER: VIRGINIA BEACH RACQUET CLUB NORTH ASSOCIATES STAFF PLANNER: Carolyn A.K. Smith REQUEST: Modification of a Conditional Use Permit for an outdoor recreation facility (tennis courts) approved by the City Council originally in 1975 and was most recently modified in 1986. ADDRESS / DESCRIPTION: 1950 Thomas Bishop Lane. GPIN: ELECTION DISTRICT: SITE SIZE: AICUZ: 14995671230000 LYNNHAVEN 16.77 acres Less than 65 dB DNL 14995683790000 14994696410000 14995613570000 EXISTING LAND USE: Tennis club with swimming pool. SUMMARY OF REQUEST According to the applicant, the existing structure that covers 6 tennis courts located on the west side of Thomas Bishop Lane has exhausted its useful life. The applicant proposes to dismantle and remove the structure and replace it with either one or several temporary inflatable structures to keep the existing six courts protected from the elements through the winter. The plan is that on or after April 30, 2011, these courts will be converted to strictly outdoor play. The applicant also requests to add lighting to some of the existing outdoor courts to the property on the east side of Thomas Bishop Lane, specifically to add lights to 10 existing outdoor courts and to construct 2 additional lit courts, for a total of 12 outdoor, lighted courts. Five new junior practice courts and 65 new VIRGINIA BEACH RACQUET CLUB parking spaces are also proposed. Applicable landscaping requirements related to any new parking spaces will be reviewed during site plan review. The third request involves the construction of a new 81,950 square foot, indoor tennis building on the east side of Thomas Bishop Lane. The building is proposed to be located along the southern property line, with dimensions of 513 feet by 150 feet. This indoor tennis facility will house 10 tennis courts, spectator seating and concessions. The building will have 35 foot high exterior walls with a roof peak of 42 feet, requiring a Board of Zoning Appeals variance. The roof is proposed with a very gentle slope at a 1:12 pitch. The facades are typical of a large metal building, however, the facade facing Thomas Bishop Lane is proposed with some exterior material upgrades including the use of fiber cement panels simulating lap board siding, cedar shakes and CMU blocks at the bottom of the facade. The exact color scheme has not been finalized but the applicant has indicated that earth tones are proposed. Although building signage is depicted on the building, the Zoning Ordinance does not allow signage, freestanding or otherwise, for commercial uses in residentially zoned districts. In addition to the indoor structure, a 5,000 square foot storage building will also be constructed at the time the indoor tennis building is built. The result olf this request would be 39 tennis courts on the main property on the east side of Thomas Bishop Lane (18 outdoor lighted courts, 11 outdoor unlit courts, and 10 indoor courts) and 6 outdoor courts on the west side of Thomas Bishop Lane. LAND USE AND PLAN INFORMATION SURROUNDING LAND North: . Single family dwellings /R-20 Residential District USE AND ZONING: South: . John B. Dey Elementary School / R-40 Residential District East: . Single family dwellings /R-20 Residential District Great Neck Middle School / R-40 Residential District West: . Thomas Bishop Lane • Single-family homes / R-10 Residential District NATURAL RESOURCE AND There does not appear to be any significant environmental or cultural CULTURAL FEATURES: features on the property to the east of Thomas Bishop Lane. The existing inflatable structure on the west side of Thomas Bishop Lane is located within the Chesapeake Bay Preservation Area/Resource Protection Area. The applicant has met with the Chesapeake Bay Staff and understands that any land disturbance, including the replacement of the structure, must meet all applicable requirements for redevelopment as set forth in the Chesapeake Bay Preservation Area Ordinance. COMPREHENSIVE PLAN: The Comprehensive Plan identifies this site as being in the Suburban Area. The Plan recognizes the necessity of preserving and protecting the overall character, economic value, and aesthetic quality of the stable neighborhoods. Achieving the goals of preserving neighborhood quality requires a careful mix of land P x VIRGINIA BEACH RACQUET CLUB NORTWASSOCIAtES ;Agenda Itn 7 Pagp_2 uses while promoting compatibility with the surroundings in terms of proper buffering between non-residential and residential development, environmental responsibility, livability, and quality and attractiveness of site and buildings. CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) I CAPITAL IMPROVEMENT PROGRAM (CIP): Thomas Bishop Lane is a 2 lane undivided local street. It is not shown on the MTP and is not the subject of any CIP project. Approximately 630 feet south of the southern site entrance, Thomas Bishop Lane terminates at an unsignalized T -intersection with Great Neck Road. Great Neck Road is a suburban major arterial that has a divided 4 lane typical' section in front of the subject site. Based on traffic counts taken in 2009, this segment operates at a borderline F Level of Service. The MTP shows Great Neck Road as a divided facility with a bikeway in a 120 foot right-of-way. There are no roadway CIP projects in the vicinity. TRAFFIC: Street Name Present Volume Present Capacity Generated Traffic Great Neck Road 37,200 ADT 34,900 ADT (Level of Existing Land Use;'— Service "C") - 37,100 East: 1,160 ADT ADT' (Level of Service West: 232 ADT "E") Proposed Land Use 3 - East: 1,510 ADT West: 232 ADT Average Daily Trips ' East - as defined by existing 30 courts /West — as defined by 6 existing indoor courts 3 East - as defined by 39 tennis courts/West-as defined by 6 indoorloutdoor courts WATER & SEWER: This site is already connected to City water and sewer. The existing 2 inch water meter can be used or upgraded to accommodate the proposed expansion. The sanitary sewer and pump station, #266, may be required to be analyzed to determine if future flows can be accommodated. EVALUATION AND RECOMMENDATION As the applicant proposes to dismantle and remove the inflatable indoor tennis structure on the west property by April 30, 2011. Staffs position is that it is acceptable that either one or several temporary inflatable structures are allowed to keep the existing 6 courts protected from the elements through the winter. As such, Staff recommends a condition outlining the time frame for removal of any temporary replacement structure(s). VIRGINIA BEACH RACQUET CLUB NORTH:ASSOCOES { Agenda I 7 Pa& 3 4 The east property, or the club's main property, is proposed with several modifications: additional lighting for 10 existing outdoor courts, construction of 7 additional outdoor courts (2 with lights), additional parking and an 82,000 square foot indoor tennis facility with 10 courts. The total number of courts proposed on this eastern site is 39. The large building with dimensions of roughly 515 feet by 150 feet is proposed along the southern property line, adjacent to an existing water tower and the John B. Dey Elementary School. The Virginia Beach Racquet Club has been at this location since the 1970s. Changes to the club have occurred over the years as modifications and expansions were requested and approved by the City Council in 1978, 1983 and 1986. The applicant feels that the proposed improvements will encourage additional year round play, provide higher quality tournaments, and increase use by tennis players traveling to ,and through Virginia Beach. The result will be 39 tennis courts on the main property on the east side of Thomas Bishop Lane (18 outdoor lighted courts, 11 outdoor unlit courts, and 10 indoor courts) and 6 outdoor courts on the west side of Thomas Bishop Lane. The applicant met with adjacent property owners to review the proposed modifications. Adjustments to this original proposal have been made to accommodate concerns of adjacent property owners. For example, no additional lights will be added to existing courts immediately adjacent to properties that are addressed on Thomas Bishop Lane; 2 new lighted courts along the eastern property line were shifted to the south to increase the separation between the proposed courts and an existing dwelling; the applicant agreed to install additional evergreen vegetation to enhance the existing buffer along the southern property line of 1900 Thomas Bishop Court; and, the applicant agreed that the additional lights would be turned off by 10:00 p.m. The proposed new lights are box style that allow only minimal spillover and are similar to the lighting systems at the Princess Anne Country Club and the Greenbrier Country Club, both of which are located in residential settings. The outdoor lights proposed are an improvement above the old technology of the existing 30 year old lights currently at the club. Staff recommends approval of this requested modification, as conditioned below. CONDITIONS 1. The indoor door tennis facility shall be constructed only at the location depicted on the exhibit referenced in condition 2 below and in substantial conformance with the elevations entitled, "New Court Facility for Virginia Beach Tennis and Country Club," prepared by Covington, Hendrix Anderson Architects, dated 08/13/10, which has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. The exterior building color scheme shall be limited to earth tones. 2. Any additional buildings, tennis courts and/or lighting not on the property located at 1950 Thomas Bishop Lane as of August 1, 2010, shall be constructed substantially in conformance with the improvements indicated on the exhibit entitled, "Use Permit Exhibit — Revised, Virginia Beach Tennis & Country Club," prepared by Martin Engineering, dated 08/16/10, which has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. 3. The additional lights as depicted on the exhibit referenced in condition 2 above shall be turned off by 10:00 P.M. VIRGINIA BEACH RACQUET CLUB NORTH ASSOCIA ,ES i Agenda It 7 _ r PA&..4 1 s t 4. A single temporary structure or structures are permitted to be constructed at 1951 Thomas Bishop Lane in order to replace the existing inflatable, indoor tennis structure solely for protection from the elements during the winter 2010-2011 season. On or before April 30, 2011, any temporary structure(s) on this property shall be removed. Subsequent to May 1, 2011, the club's property on the west side of Thomas Bishop Lane shall be limited to: 6 outdoor tennis courts, parking in number and configuration as of August 1, 2010, and change -over player seating. Lights on these courts shall be prohibited. 5. An additional row of large evergreen shrubs, installed consistent with standards set forth in the Virginia Beach Landscaping Guide, shall be installed on the club's property along the southern property line as shown on the exhibit referenced in condition 2 above. Said landscaping shall be depicted on the final site plan and approved by staff prior to approval of the site plan. The existing wooded area on the club's property in this vicinity shall remain intact as shown on said plan and shall also be depicted as part of the tree protection strategy on the site plan and/or on the erosion and sedimentation plan. 6. Interior parking.lot and streetscape landscaping shall be installed as required by City ordinances and consistent with the standards set forth in the Virginia Beach Landscaping Guide. 7. No signage is allowed, freestanding or otherwise, for commercial uses in residentially zoned districts. Signage as depicted on the building elevation would be allowed. NOTE. Further conditions may be 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 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 (CPTED) concepts and strategies as they pertain to this site. r• � y VIRGINIA BEACH RACQUET CLUB NORTHiASSOCIA ES w t Agenda It, 7 Pia 5 .r H. F _ .ate d 'i a 1 03/13/07 05/11/81 Subdivision Variance Change of Zoning R-1 to R-2 Granted Granted 2 11/24/86 CUP church Granted 3 05/05/86 04/25/83 04/10/78 04/14/75 CUP (recreational facility) CUP (recreational facility) CUP (recreational facility) CUP recreational facility) Granted Granted Granted Granted 4 05/11/81 Change of Zoning R-1 to R-3 Granted 5 04/10/78 Change of Zoning R-1 to R-2 Granted 6 12/13/76 Change of Zoning R-1 to R-3 Granted 7 11/15/76 CUP recreational facility) Granted ZONING HIST' RY- VIRGINIA BEACH RACQUET CLUB NO C> 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 finecessary) Virginia Beach Racquet Club North Associates, a Virginia Lirriited Partnership: Dr. Harvey Shiflett, General Partner 2. List all businesses that have a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach fist ff necessary) O Check here if the applicant Is NOT a corporation, partnership, firm, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only ff property owner is dffferent 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 fist ff necessary) 2. List all businesses that have a parent -subsidiary' or affiliated business entlty2 relationship with the applicant: (Attach list ff necessary) © Check here if the property owner is NOT a corporation, partnership, firm, business, or other unincorporated organization. & See next pne for footnotes MWlk*W of k:owftons ApOcabon P*" 10 or 11 91,E 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 fist if necessary) Martin Engineering, Inc. Sykes, Bourdon, Ahem & Levy, P.C. 1 'Parent-subsidlary relationship" means "a relationship that exists when one corporation directly or indirectly owns sures 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. 2 "Affiliated business entity relationship" means "a relationship, other than parent -subsidiary relationship, that exists when (b) one business entity has a controlling ownership interest in the other business entity, (a) 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. f=actors 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 dose working relationship between the entities.' See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. CERTIFICATION: I car* 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 paokaW. Virgin' a cquet b o sociates By. Harvey Shiflett, General Partner Applicant Signature Print Name Property Owners Signature (if different than appficanQ Print Name Mo"Won on of GW41io+n Minn Pape 110111 Revised 911MU DISCLOSURE STATEMENT VIRGINIA BEACH RACQUET CLUB NORTH.ASSOCIAfES Agenda at 7 rage -!,-i 1'r- 4Rr 0 Q 05 V) J W 5n w N f- E. j m z_ r�h V t 13 Item #7 Virginia Beach Racquet Club North Associates Modification of Conditions 1950 Thomas Bishop Lane District 5 Lynnhaven September 8, 2010 APPROVED An application of Virginia Beach Racquet Club North Associates for a Modification of Conditions on property located at 1950 Thomas Bishop Lane, District 5, Lynnhaven. CONDITIONS 1. The indoor door tennis facility shall be constructed only at the location depicted on the exhibit referenced in condition 2 below and in substantial conformance with the elevations entitled, "New Court Facility for Virginia Beach Tennis and Country Club," prepared by Covington, Hendrix Anderson Architects, dated 08/13/10, which has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. The exterior building color scheme shall be limited to earth tones. 2. Any additional buildings, tennis courts and/or lighting not on the property located at 1950 Thomas Bishop Lane as of August 1, 2010, shall be constructed substantially in conformance with the improvements indicated on the exhibit entitled, "Use Permit Exhibit — Revised, Virginia Beach Tennis & Country Club," prepared by Martin Engineering, dated 08/16/10, which has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. 3. The additional lights as depicted on the exhibit referenced in condition 2 above shall be turned off by 10:00 P.M. 4. A single temporary structure or structures are permitted to be constructed at 1951 Thomas Bishop Lane in order to replace the existing inflatable, indoor tennis structure solely for protection from the elements during the winter 2010-2011 season. On or before April 30, 2011, any temporary structure(s) on this property shall be removed. Subsequent to May 1, 2011, the club's property on the west side of Thomas Bishop Lane shall be limited to: 6 outdoor tennis courts, parking in number and configuration as of August 1, 2010, and change -over player seating. Lights on these courts shall be prohibited. 5. An additional row of large evergreen shrubs, installed consistent with standards set forth in the Virginia Beach Landscaping -Guide, shall be installed on the club's property along the southern property line as shown on the exhibit referenced in condition 2 above. Said landscaping shall be depicted on the final site plan and approved by staff prior to approval of the site plan. The existing wooded area on the club's property in this vicinity shall remain intact as shown on said plan and shall also be depicted as part of the tree protection strategy on the site plan and/or on the erosion and sedimentation plan. 6. Interior parking; lot and streetscape landscaping shall be installed as required by City ordinances and consistent with the standards set forth in the Virginia Beach Landscaping Guide. Item #7 Virginia Beach Racquet Club North Associates Page 2 7. Consistent with the Zoning Ordinance, no signage, freestanding, on the building or otherwise, shall be permitted on the site. NOTE. Further conditions may be 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 CityCodes 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. AYE 10 NAY 0 ANDERSON AYE BERNAS AYE FELTON HENLEY AYE HORSLEY AYE KATSIAS AYE LIVAS AYE REDMOND AYE RIPLEY AYE RUSSO AYE STRANGE AYE ABS 0 ABSENT 1 ABSENT Eddie Bourdon appeared on behalf of the applicant. The applicant Dr. Harvey Shiflet was also present. d 9 � ■. =® rl s u• CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: NEW CINGULAR WIRELESS PCS, LLC/CITY OF VIRGINIA BEACH, Conditional Use Permit, communications tower, 1900 Sandbridge Road (GPIN 2414412649). PRINCESS ANNE DISTRICT. MEETING DATE: October 12, 2010 ■ Background: On July 6, 2010 City Council approved a lease agreement between the City and the applicant for the development of a communications tower within Red Mill Park. The applicant is now requesting the required Conditional Use Permit. This applicant has been working since 2007 to locate a tower within the vicinity to fill in a gap in the mobile wireless telephone coverage for this area, as shown on the Current Coverage map, contained within this report. The existing park contains two lighted baseball fields and play ground equipment. It is the intent of the applicant to replace an existing 60 -foot stadium light pole with a 140 -foot stealth "slick stick" type communications tower with a four foot lightning rod for a total height of 144 -feet. This tower will have internal antennas and can accommodate three additional users. The existing stadium lights will be relocated to the proposed tower. The submitted site plan depicts a 40 -foot by 40 -foot, 1,600 square foot lease area located adjacent to the northeast corner of the eastern ball field. The area will be enclosed by an eight foot high, black vinyl coated, chain-link fence. This lease area will primarily have a gravel surface with concrete slabs for the electronic and support related equipment. A 20 -foot access and utility easement containing a 12 -foot gravel road, running from the end of the eastern parking area to the lease area, will provide access to the site. The required Structural Report and RF Emissions Report for the proposed tower have been submitted and are acceptable. This site does have various site development issues. Those issues and how the issues will be addressed are as follows: ➢ The proposed tower is located in the line -of -sight between the City's E- 911 communications facilities located on the 29nd Street water tower to the E-911 facilities located on the City's Pleasant Ridge Road tower. See the maps located within this report. The applicant's engineers have New Cingular Wireless PCS, LLC/City of Virginia Beach Page 2 of 4 worked with the City's Radio Systems Engineer to insure that there will not be any interference to the City's emergency communications facilities. The Pleasant Ridge tower is 400 -hundred feet in height. To address any potential interference the applicant will relocate the City's E-911 facilities on the Pleasant Ridge Road tower from the current 135 -foot level to the 220 or 244 -foot level, whichever is deemed best from the final path calculations. This will allow the City's signal to pass over the applicant's proposed 144 -foot tower. A structural analysis of the Pleasant Ridge Road tower will be required for the relocation of this equipment. ➢ The lease area is located adjacent to a drainage canal. Areas adjacent to the canal are impacted by the Southern Watersheds Management Ordinance and are within the 100 -year floodplain. Approximately 428 square feet of the proposed improvements are located within the Southern Watersheds Management Area buffer. Section 12 of the Southern Watersheds Management Ordinance allows administrative variances when they are not contrary to the public interest. In this case, a minimal amount of encroachment is occurring and an administrative variance has been approved subject to 200 -percent of buffer mitigation. It has been determined that the buffer mitigation will consist of planting six Baldcypress trees within the park area, which is acceptable with the Parks and Recreation Department. Approximately 478 square feet of the proposed improvements are located within the 100 -year floodplain and will be filled with gravel. Section 513.5 of the Site Plan Ordinance allows an administrative variance if the affected area is less than five percent of the total floodplain area of the site and 100 -percent mitigation is provided. In this case, less than five percent of the total floodplain area, located within the park site, is- being filled and an administrative variance has been approved subject to 100 -percent mitigation. The mitigation area will be located adjacent to the drainage canal. ➢ The fenced compound area cannot meet the landscape requirements as per Section 232(f) of the Zoning Ordinance due to the adjoining ball field. However, this section does allow the standards to be modified by City Council when alternate landscaping satisfies the landscape requirements. In this case, plantings will be provided outside of the ball field area on the opposite side of the subject ball field in lieu of being directly adjacent to the compound area, as required, to screen the site from Sandbridge Road. Additionally, the landscaping staff with the Parks and Recreation Department has specified the location and species of plantings that can be accommodated within the park that will meet the landscape screening requirements. ■ Cons ide.,rations: New Cingular Wireless PCS, LLC/City of Virginia Beach Page 3 of 4 This request fills in a gap for the mobile wireless telephone coverage in this area. There are no existing towers for co -location or structures within the area with the height needed to provide an opportunity for building -mounted antennas. The applicant has worked with staff to resolve the site development and the City's emergency communications facilities line -of -sight issue associated with this site. Unfortunately, these issues were not discovered until this applicant was under review. Therefore, there has not been ample time for the applicant to prepare the necessary floodplain mitigation plan, landscape plan, complete the structure analysis for the Pleasant Ridge Road tower or complete the detailed engineering review concerning the line -of -sight issue. However, all preliminary analysis indicates that the issues can be resolved. Basically, the required plans and the detailed reports can be addressed with the site plan review process. The applicant has met with the various community organizations and has sent individual notices to adjoining property owners regarding the location, coverage areas, operation and design of the tower. Therefore, Staff recommends approval of the Use Permit subject to the following conditions. There was no opposition to the request. ■ Recommendations: The Planning Commission placed this item on the Consent Agenda, passing a motion by a recorded vote of 10-0, to recommend approval of this request to the City Council with the following conditions: 1. The lease area and access road shall be developed substantially in accordance with the submitted plan entitled "Red Mill Park Site No. NF307B 1900 Sandbridge Road, Virginia Beach, VA 23456", dated 05/14/08, and as revised 05/10/10, and prepared by Allpro Consulting Group, Inc. Said plan has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. 2. The submitted site plan states that the proposed chain-link fence will be ten (10) feet in height. The applicant has stated that this is a typographic error. When the plans are submitted for site plan review they must depict an eight foot high fence. 3. All costs associated with the relocation of the City's equipment if necessary and feasible on the Pleasant Ridge Road tower are the responsibility of the applicant. 4. The applicant shall notify the City's Radio Systems Engineer 48 -hours prior to any work being performed on the Pleasant Ridge Road tower. New Cingular "fireless PCS, LLC/City of Virginia Beach Page 4 of 4 5. The proposed tower shall not exceed 144 feet in overall height. 6. The applicant shall work with the Parks and Recreation Department's landscape staff to insure that the landscape plan meets specifications. 7. In the: event interference with any City emergency communications facilities arises from the user(s) of this tower, the applicant shall take all measures reasonably necessary to correct and eliminate the interference. If the interference cannot be eliminated within seven days, the applicant shall cease operation to the extent necessary to stop the interference. 8. In the: event that antennas on the tower and/or the tower are inactive for a period of one year, the tower shall be removed at the applicant's expense. ■ Attachments: Staff Review and Disclosure Statements Minutes of Planning Commission Hearing Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Department City Manager: k . 4�1" '?„ New Cingular Wireless PCS, LLC REQUEST: Conditional Use Permit (communications tower) ADDRESS / DESCRIPTION: 1900 Sandbridge Road 3 September 8, 2010 Public Hearing APPLICANT: NEW CINGULAR WIRELESS PCS, LLC PROPERTY OWNER: CITY OF VIRGINIA BEACH STAFF PLANNER: Ray Odom GPIN: ELECTION DISTRICT: SITE SIZE: AICUZ: 24144126490000 Princess Anne 18.28 acres 65-70 dB DNL SUMMARY OF REQUEST On July 6, 2010 City Council approved a lease agreement between the City and the applicant for the development of a communications tower within Red Mill Park. The applicant is now requesting the required Conditional Use Permit. This applicant has been working since 2007 to locate a tower within the vicinity to fill in a gap in the mobile wireless telephone coverage for this area, as shown on the Current Coverage map, contained within this report. The existing park contains two lighted baseball fields and play ground equipment. It is the intent of the applicant to replace an existing 60 -foot stadium light pole with a 140 -foot stealth "slick stick" type communications tower with a four foot lightning rod for a total height of 144 -feet. This tower will have internal antennas and can accommodate three additional users. The existing stadium lights will be relocated to the proposed tower. The submitted site plan depicts a 40 -foot by 40 -foot, 1,600 square foot lease area located adjacent to the northeast comer of the eastern ball field. The area will be enclosed by an eight foot high, black vinyl coated, chain-link fence. This lease area will primarily have a gravel surface with concrete slabs for the electronic and support related equipment. A 20 -foot access and utility easement containing a 12 -foot gravel road, running from the end of the eastern parking area to the lease area, will provide access to the NEW CINGULAR WIRELESS PCS,.,.LC Agenda It 3 Pale„ 7 site. The required Structural Report and RF Emissions Report for the proposed tower have been submitted and are acceptable. This site does have various site development issues. Those issues and how the issues will be addressed are as follows: ➢ The! proposed tower is located in the line -of -sight between the City's E-911 communications facilities located on the 29nd Street water tower to the E-911 facilities located on the City's Pleasant Ridge Road tower. See the maps located within this report. The applicant's engineers have worked with the City's Radio Systems Engineer to insure that there will not be any interference to the City's emergency communications facilities. The Pleasant Ridge tower is 400 - hundred feet in height. To address any potential interference the applicant will relocate the City's E-911 facilities on the Pleasant Ridge Road tower from the current 135 -foot level to the 220 or 244 -foot level, whichever is deemed best from the final path calculations. This will allow the City's signal to pass over the applicant's proposed 144 -foot tower. A structural analysis of the Pleasant Ridge Road tower will be required for the relocation of this equipment. ➢ The lease area is located adjacent to a drainage canal. Areas adjacent to the canal are impacted by the Southern Watersheds Management Ordinance and are within the 100 -year floodplain. Approximately 428 square feet of the proposed improvements are located within the Southern Watersheds Management Area buffer. Section 12 of the Southern Watersheds Management Ordinance allows administrative variances when they are not contrary to the public interest. In this case, a minimal amount of encroachment is occurring and an administrative variance has been approved subject to 200 -percent of buffer mitigation. It has been determined that the buffer mitigation will consist of planting six Baldcypress trees within the park area, which is acceptable with the Parks and Recreation Department. Approximately 478 square feet of the proposed improvements are located within the 100 -year floodplain and will be filled with gravel. Section 56.5 of the Site Plan Ordinance allows an administrative variance if the affected area is less than five percent of the total floodplain area of the site and 100 -percent mitigation is provided. In this case, less than five percent of the total floodplain area, located within the park site, is being filled and an administrative variance has been approved subject to 100 -percent mitigation. The mitigation area will be located adjacent to the drainage canal. The fenced compound area cannot meet the landscape requirements as per Section 232(f) of the Zoning Ordinance due to the adjoining ball field. However, this section does allow the standards to be modified by City Council when alternate landscaping satisfies the landscape requirements. In this case, plantings will be provided outside of the ball field area on the opposite side of the subject ball field in lieu of being directly adjacent to the compound area, as required, to screen the :site from Sandbridge Road. Additionally, the landscaping staff with the Parks and Recreation Department has specified the location and species of plantings that can be accommodated within the park that will meet the landscape screening requirements. LAND USE AND PLAN INFORMATION - EXISTING LAND USE: City park containing two lighted baseball fields and play ground equipment. SURROUNDING LAND North: USE AND ZONING: South: Single-family Homes / R-7.5 Residential District Sandbridge Road / Open-space/Single-family homes/R-20 and R-15 Residential Districts - •' r...r Y .fF `1r •� t NEW CINGULAR WIRELESS PCS,, LC +: Agenda It_; 3 4 �? 2 East: . Red Mill Elementary School/ R-15 Residential District West: . Church / R-20 Residential District NATURAL RESOURCE AND This site is located within the Back Bay watershed of the Southern CULTURAL FEATURES: Watersheds Management Area. A drainage canal traverses the eastern border of the park. Areas adjacent to the canal are within the Southern Watersheds Management Area 50 -foot buffer and are within the 100 - year floodplain. COMPREHENSIVE PLAN: This property is located with the Suburban Area with general planning principles that focus on preserving and protecting the overall character, economic value, and aesthetic quality of the stable neighborhoods. The purpose of these planning principles is to reinforce the suburban characteristics of commercial centers and other non-residential areas that make up part of the Suburban Area. This can be accomplished by having both new residential and non-residential development or uses maintain compatibility with the surroundings; propose high quality and attractive buildings and sites; employ environmentally responsible practices; and, establish adequate buffers between residential and nonresidential uses with consideration to the type, size and intensity of the proposed use and its relationship to the surrounding uses. EVALUATION AND RECOMMENDATION This request fills in a gap for the mobile wireless telephone coverage in this area. There are no existing towers for co -location or structures within the area with the height needed to provide an opportunity for building -mounted antennas. The applicant has worked with staff to resolve the site development and the City's emergency communications facilities line -of -sight issue associated with this site. Unfortunately, these issues were not discovered until this applicant was under review. Therefore, there has not been ample time for the applicant to prepare the necessary floodplain mitigation plan, landscape plan, complete the structure analysis for the Pleasant Ridge Road tower or complete the detailed engineering review concerning the line -of -sight issue. However, all preliminary analysis indicates that the issues can be resolved. Basically, the required plans and the detailed reports can be addressed with the site plan review process. The applicant has met with the various community organizations and has sent individual notices to adjoining property owners regarding the location, coverage areas, operation and design of the tower. Therefore, Staff recommends approval of the Use Permit subject to the following conditions. CONDITIONS 1. The lease area and access road shall be developed substantially in accordance with the submitted plan entitled "Red Mill Park Site No. NF307B 1900 Sandbridge Road, Virginia Beach, VA 23456", dated 05/14/08, and as revised 05/10/10, and prepared by Allpro Consulting Group, Inc. Said plan has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. 2. The submitted site plan states that the proposed chain-link fence will be ten (10) feet in height. The applicant has stated that this is a typographic error. When the plans are submitted for site plan review they must depict an eight foot high fence. f Y NEW CINGULAR WIRELESS PCS,, LC '_,Agenda Ite't 3 i .4 Pa 3 3. All costs associated with the relocation of the City's equipment if necessary and feasible on the Pleasant Ridge Road tower are the responsibility of the applicant. 4. The applicant shall notify the City's Radio Systems Engineer 48 -hours prior to any work being performed on the Pleasant Ridge Road tower. 5. The proposed tower shall not exceed 144 feet in overall height. 6. The applicant shall work with the Parks and Recreation Department's landscape staff to insure that the landscape plan meets specifications. 7. In the event interference with any City emergency communications facilities arises from the users) of this tower, the applicant shall take all measures reasonably necessary to correct and eliminate the interference. If the interference cannot be eliminated within seven days, the applicant shall cease operation to the extent necessary to stop the interference. 8. In the event that antennas on the tower and/or the tower are inactive for a period of one year, the tower shall be removed at the applicant's expense. NOTE. Further conditions may be 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 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 (CPTED) concepts and strategies as they pertain to this site. NEW CINGULAR WIRELESS PCS,_ LC agenda I 3 , Pla& 4 . x► �.: � - - '.'.mss' �� �, ti, .. .._ 4,e, ,�• _�`" "4.,- ,a,•. !rte ,; n ,k.." -. •,,. "` "=!�f`As, .,» Lam.- 1 • q�'_ �w � J ,. n ENLARGED SITE -PIAN MMHM W-Tt ACL atao r txnwc nou 70P OF VM 14W--Wt AM +_�Rd+ 1W. 12 AOL i� JIMMM i {MPOO )cid NCMmmm Y ow N t[ �jj; C61tT9T W FUTJK XNf{>rtA i N ��Id1D pFJtTEIt GF pTT NFl AN>F1NAS was ltt ' .M N N t► I MIS imi!Too.' i'1GP t tom a GWRATM ON Qo c PAD 1�R/7P6Stt7 HriRAYE SlfltiBE�ArtIplF OF OF FOU Cd6"m PMPCSD fewe am H-fm WON 11 mi -11 Uum la vil ..i ooh a TOWER ELEVATION TOWER SIMULATION GRAPHfG NEW CINGULAR WI Virglnb Beath Sim, Mkxuwaue PoOM aux! 1 Mile Rmlkw Shp E-911 LINE -OF -SIGH ENLARGED E-911 LINE-OF-SIfiHT MAP .'' CURRENT COVERAGE MAP COVERAGE WITH R MAP # pATE REQUEST APPLICANT ACTION 1 06/14/05 Use Permit (Child Care Education Facility) Rainbow Station, Inc. Approved 2 08/12/03 Conditional Rezoning (AG -1 & 2 to R-20) CUP's (Open Space Promotion &Outdoor Recreation Facility -Riding Academy) Riganto, LLC Approved 3 02/24/09 Condition Rezoning (AG -1 to B-2 & 0-2) Princessboro Development Company, Inc. Approved 4 11/12/63 Rezoning (R -S1, A -R & C -G1 to C-11 Douglas I. Shelton Approved 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 fist if necessary) Now Ci Volar Wireless PCS, LLC (fla AT&T) - Plesae see attached HsL 2. List all businesses that have a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list Nnecessary) AT&T MobAity ❑ Check here if the applicant is Afore corporation, partnership, firm, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only if property owner Is d (trent 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) City or Mrairia Beach 2. List all businesses that have a parent -subsidiary' or affifiated business enter relationship with the applicant: (Attach list Jf necessary) N/A ❑ Check here if the property owner is NOT a corporation, partnership, firm, business, or other unincorporated organization. & 2 See next papa for baimoles 0 Zoo - 0=1 01-4 2X14 PQ PQ CAP.) IrO Does an official or employee of the City of Virginia Beach have an Interest in the subject land? Yes —No X if yes, what is the name of the official or employee and the nature of their Interest? COWWWW Ir 11 �r pews of 10 Revived 713FLW NEW CINGULAR WIRELESS PCS, ILLC Agenda Ite 3 Pr rML♦ .1141 y Ennoaif 11110000014 0,,aaaf ► CW)` P000010{ Finsont 110000004 I IF{ room;) 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 servers, accounting services, and legal services: (Attach list If necessary) SAI Communications, Inc, LeClekRyan,, ARM Consulting Group. Inc EBI Consulting Haller Surveys, P.C. 1 *Parent-subsiciary relle6onsW mans "a relationship that exists when one corporation directly or indirectly owns shares possessing mot than 50 percent of the voting power of another corporation." See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. x'Affiliated business entity relationsW means "s relationship. Other than parent- subskilary relationship, that exists when (t) one business entity has a controlling ownership Interest In the other business entity, (tl) a Controlling owner In one entity is also a controlling owner in the other entity, or (int) there Is shared management or control between the business entity. Factors that should be considered to deterrnining the existence of an affiliated business entity relationship include that the same person or substantially the some person own or manage the two entities, there are common or commingled furans 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 Sete and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. CERTIFICATION: I certify that the kftnvtorh contained herein is true and accurate. I understand that, upon receipt of notification (postcard) that the application on has been scheduled for public hearing, i am responsible for obtainir g and posting the required sign an the suhjed property at least 30 days prior to the scheduled public hearing a=wdkhg to the instruction In thft package. The underskinsd also consents to entry upon the s property by employees of the Deparknent of Planer tcg to photograph and view the aft for purposes of ptocassing and eva&eang this applestion. plot's Signature Print Name JAMC-Z L 5PORE owners t than appkanQ Print Name CGOOM a use Appka#m Page 10 of 10 rimed 743=7 NEW CINGULAR WIRELESS PC v4genda P 3 Item #3 New Cingular Wireless PCS, L.L.C. Conditional Use Permit 1900 Sandbridge Road District 7 Princess Anne September 8, 2010 CONSENT An application of New Cingular Wireless PCS, L.L.C. for a Conditional Use Permit for a communication tower on property located at 1900 Sandbridge Road, District 7, Princess Anne. CONDITIONS 1. The lease area and access road shall be developed substantially in accordance with the submitted plan entitled "Red Mill Park Site No. NF307B 1900 Sandbridge Road, Virginia Beach, VA 23456", dated 05/14/08, and as revised 05/10/10, and prepared by Allpro Consulting Group, Inc. Said plan has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. 2. The submitted site plan states that the proposed chain-link fence will be ten (10) feet in height. The applicant has stated that this is a typographic error. When the plans are submitted for site plan review they must depict an eight foot high fence. 3. All costs associated with the relocation of the City's equipment if necessary and feasible on the Pleasant Ridge Road tower are the responsibility of the applicant. 4. The applicant shall notify the City's Radio Systems Engineer 48 -hours prior to any work being performed on the Pleasant Ridge Road tower. S. The proposed tower shall not exceed 144 feet in overall height. 6. The applicant shall work with the Parks and Recreation Department's landscape staff to insure that the landscape plan meets specifications. In the event interference with any City emergency communications facilities arises from the user(s) of this tower, the applicant shall take all measures reasonably necessary to correct and eliminate the interference. If the interference cannot be eliminated within seven days, the applicant shall cease operation to the extent necessary to stop the interference. 8. In the event that antennas on the tower and/or the tower are inactive for a period of one year, the tower shall be removed at the applicant's expense. Item #3 New Cingular Wireless PCS, L.L.C. Page 2 NOTE. Further conditions may be 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 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. AYE 10 NAY 0 ANDERSON AYE BERNAS AYE FELTON HENLEY AYE HORSLEY AYE KATSIAS AYE LIVAS AYE REDMOND AYE RIPLEY AYE RUSSO AYE STRANGE AYE ABS 0 ABSENT 1 Ms. Lisa Murphy, Leclair Ryan, appeared on behalf of the applicant. ABSENT KA 11 14", 17 F I � i 4- CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: KROGER LIMITED PARTNERSHIP I, Conditional Use Permit, automobile service station/fuel sales, 1800 Republic Road (GPIN 2407691178). BEACH DISTRICT. MEETING DATE: October 12, 2010 ■ Background: The applicant requests a Conditional Use Permit to allow development of a portion of the site for an automobile service station, i.e. fuel sales. The site, along Republic Road, is occupied by the Kroger Grocery Store. The site is basically rectangular in shape with access from Republic Road. The area proposed for the fueling facility would be the southwest corner of the site. Currently parking spaces and landscape islands exist in this area. While the area is delineated for parking, it is seldom used for that purpose since sufficient grocery store customer parking is much closer. Staff has visited the site and not seen any vehicles using the spaces. The applicant proposes to remove 62 parking spaces and four landscape islands to develop the area with a 24 -foot by 145 -foot canopy, five fueling stations, and an eight -foot by 14 -foot kiosk for employees. The canopy is designated as 21'- 4" feet in height. The canopy and kiosk will be constructed with materials to match the existing building. The roof on the canopy will be a mansard metal roof matching the color of the store's roof. The columns for the canopy and the kiosk will be faced in masonry to match the store. The five fueling dispensers will accommodate ten vehicles. Hours of operation for the fuel center will be 6:00 a.m. to 11:00 p.m., seven days a week. The fuel center kiosk will house one employee per shift. This employee will be responsible for monitoring fuel center operations, responding to any alarms or spills, taking cash for fuel purchases and selling various sundries out of the kiosk. ■ Considerations: The proposed location for the fueling facility is unobtrusive and currently underutilized. While development of the facility will eliminate 62 parking spaces, these spaces are generally not used. This proposal will relocate two landscape islands of the four that would be removed. A third area in the southwest corner of the site will provide an additional landscape bed. Kroger Limited Partnership I Page 2 of 3 Staff finds that this facility is proposed in an area that will not affect the operation of the retail store located on the site. Access and maneuverability to the site and on the site are acceptable. Some existing shrubs along the curved entrance way have become overgrown and may need to be relocated further back from the road or trimmed to allow good visibility of cars entering or leaving the fuel center. In addition the applicant has submitted an attractive plan for the canopy, which will match the existing building materials and colors. Supplemental landscape screening along the property lines with the adjacent residential is also needed to provide a better screening where old landscaping has died or is insufficient. Staff, therefore, recommends approval subject to the conditions listed below. There was opposition to the request. ■ Recommendations: The Planning Commission, passing a motion by a recorded vote of 10-0, recommends approval of this request to the City Council with the following revised conditions: 1. The site shall be developed substantially in accordance with the submitted "Conditional Use Site Plan", dated 6/30/10, and prepared by RLR Robertson Loia Roof Architects and Engineers. Signage depicted on the site plan is not approved. A separate sign package shall be submitted to the Current Planning Office for review and approval. Said plan has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. 2. The proposed canopy, fuel pumps, and kiosk shall be constructed in substantial accordance with the submitted elevation "Kroger Fuel R-533 1800 Republic; Road", dated July 1, 2010. Signage depicted on the elevations is not approved. A separate sign package shall be submitted to the Current Planning Office for review and approval. Said plan has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. 3. The applicant shall provide a photometric plan that also includes the canopy lighting for review and approval by City staff. Canopy lighting shall be recessed. All lighting on the site should be consistent with those standards recommended by the [Illumination Engineering Society. 4. Signage for the proposed use shall be limited to that which is allowed by the City Zoning Ordinance. Striping on the canopy shall be limited to 10 feet on each side of the canopy or one-quarter of the length of each side. Signage on the canopy shall not be externally illuminated. There shall be no other signs, neon signs or neon accents installed on any wall area of the building, on the windows and / or doors, on the canopy or the canopy columns, or light poles. Kroger Limited Partnership I Page 3 of 3 5. There shall be no pennants, banners, streamers, strings of lights, portable signs, electronic display_signs, or "flag" style signs on the site. 6. There shall be no outdoor vending machines, ice boxes, or the display of merchandise anywhere within the facility area. 7. The applicant shall provide on the site a hazard mitigation kit for fuel spills and an accessible telephone or notification system for emergency contact of the responsible party for the site. 8. Trim existing landscaping or relocate further back from the road to insure good site visibility of cars entering and leaving the fuel center. 9. The applicant shall install additional landscape planting to meet the required buffering / screening of the fuel center from the adjacent residential properties where existing landscaping is insufficient. 10. The applicant shall install a white vinyl privacy fence eight feet in height on adiacent residential properties with the property owner's consent. 11. Hours of operation of the fuel facility shall not be beyond the hours of operation of the -grocery store. ■ Attachments: Staff Review and Disclosure Statements Minutes of Planning Commission Hearing Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Department City Manager. 0vvt Ir REQUEST: Conditional Use Permit (Fuel Sales) ADDRESS I DESCRIPTION: 1800 Republic Road 6 September 8, 2010 Public Hearing APPLICANT: KROGER LIMITED PARTNERSHIP I PROPERTY OWNER: DDR-SAU VIRGINIA BEACH REPUBLIC STAFF PLANNER: Karen Prochilo GPIN: ELECTION DISTRICT: SITE SIZE: AICUZ: 2407691178,0000 BEACH 7.412 acres Greater than 75 dB DNL SUMMARY OF REQUEST The applicant requests a Conditional Use Permit to allow development of a portion of the site for an automobile service station, i.e. fuel sales. The site, along Republic Road, is occupied by the Kroger Grocery Store. The site is basically rectangular in shape with access from Republic Road. The area proposed for the fueling facility would be the southwest comer of the site. Currently parking spaces and landscape islands exist in this area. While the area is delineated for parking, it is seldom used for that purpose since sufficient grocery store customer parking is much closer. Staff has visited the site and not seen any vehicles using the spaces. The applicant proposes to remove 62 parking spaces and four landscape islands to develop the area with a 24 -foot by 145 -foot canopy, five fueling stations, and an eight -foot by 14 -foot kiosk for employees. The canopy is designated as 21'- 4" feet in height. The canopy and kiosk will be constructed with materials to match the existing building. The roof on the canopy will be a mansard metal roof matching the color of the store's roof. The columns for the canopy and the kiosk will be faced in masonry to match the store. The five fueling dlispensers will accommodate ten vehicles. Hours of operation for the fuel center will be 6:00 a.m. to 11:00 p.m., seven days a week. The fuel center kiosk will house one employee per shift. This employee will be responsible for monitoring fuel center operations, responding to any alarms or spills, taking cash for fuel purchases and selling various sundries out of the kiosk. r Y' l KROGER LIMITED PARTNERS _ IP 1 Agenda Ite 6 LAND USE AND PLAN INFORMATION EXISTING LAND USE: Kroger Grocery Store, associated parking, a stormwater management facility, and landscaping currently occupy the site. SURROUNDING LAND North: . Single-family homes / R-7.5 Residential District USE AND ZONING: South: . Across Republic Road, Medical office / B-2 Community Business District East: . Medical office / B-2 Community Business District West: . Single-family homes / R-7.5 Residential District NATURAL RESOURCE AND The site is mostly impervious, covered with building and parking lot, and CULTURAL FEATURES: has the minimum required landscaping. There are no natural resources or cultural features associated with the site. COMPREHENSIVE PLAN: Strategic Growth Area 7 — Hilltop Area This site is located in a portion of Hilltop north of 1-264 marked by four large retail quadrants that are bisected by arterial roads operating above capacity. Though this area is located within a high noise zone, it has additional development potential because of its existing commercial strength and its proximity to the Oceanfront Resort Area, NAS Oceana, and the 1-264 Interchange. (page 2-26) New development should achieve a well planned mix of high quality retail, office, institutional and other uses in a pedestrian -friendly environment. Proposed developments (or modifications) should apply appropriate site and building design principles as outlined in the Urban Area of the Special Development Guidelines within the Reference Handbook. (page 2-27) CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) / CAPITAL IMPROVEMENT PROGRAM (CIPI: Access to this site is from Republic Road, which is a two-lane local street with a center two -way -left -tum -lane and a 60' right- of-way width. Republic Road is approximately 2,000 ft in length and connects to both First Colonial Road and Laskin Road in the northwest quadrant of the intersection of these two major roadways. Republic Road is shown on the City's 2009 Master Transportation Plan (MTP) map as a four -lane minor urban collector with an eighty -foot (80') right-of-way width. There are currently no Capital Improvement Program projects scheduled for Republic Road. In this area, First Colonial Road is a four -lane divided major urban arterial with a variable (100'-130') right-of- way width. First Colonial Road is shown on the MTP map as a six -lane divided medium -level arterial with bikeways and an ultimate right-of-way width of 150'. There are currently no CIP projects scheduled for this portion of First Colonial Road. Laskin Road is currently a four -lane divided major urban arterial with a 150' right-of-way width, and is shown as a six -lane divided medium -level arterial with bikeways and an ultimate right-of-way width of 165' on the MTP map. Construction of the CIP project 2.156 Laskin Road Phase 1 is currently delayed to beyond 2016 due to lack of funding. KROGER LIMITED PARTNERS _ ,IP 1 4: -Agenda It 6 ' Pa 2 ti TRAFFIC: Street Name Present Volume Present Capacity Generated Traffic Republic Road No counts 28,200 ADT (Level of Existing Land Use — available Service "C") 333 ADT 30,600 ADT' (Level of Proposed Land Use 3_ Service"D") - Capacity 1,686 ADT 32,800 ADT' (Level of Service "E" First Colonial Road 42,800 ADT 17,300 ADT (Level of Service "C") 27,300 ADT' (Level of Service "D") - Capacity 31,700 ADT' (Level of Service "E" Laskin Road 28,800 ADT 17,300 ADT (Level of Service "C") 27,300 ADT' (Level of Service "D") - Capacity 31,700 ADT' (Level of Service "E" Average Daily Trips x as defined by 0.606 acres zoned B-2 ' as defined by 10 -pump service station An important consideration, however, is that the actual increase of traffic on Republic will be lower, because the nature of a gasoline station is such that as many as 85 percent of its trips will be either pass -by or internal capture trips. In pass -by trips, vehicles are already on the roadway en -route to another destination and will stop to obtain gasoline. Some trips may also be 'internal capture' where supermarket customers will visit the gasoline station before leaving the overall site. Thus, the additional ADT listed in the table above is likely to be lower than what is listed. WATER and SEWER: This site is connected to City water and City sewer. Analysis of Pump station #261 and the sanitary sewer collection system is required to ensure future flows can be accommodated. STORMWATER MANAGEMENT: There is a stormwater detention system located on the site. EVALUATION AND RECOMMENDATION The proposed location for the fueling facility is unobtrusive and currently underutilized. While development of the facility will eliminate 62 parking spaces, these spaces are generally not used. This proposal will relocate two landscape islands of the four that would be removed. A third area in the southwest comer of the site will provide an additional landscape bed. Staff finds that this facility is proposed in an area that will not affect the operation of the retail store located on the site. Access and maneuverability to the site and on the site are acceptable. Some existing shrubs along the curved entrance way have become overgrown and may need to be relocated further back from the road or trimmed to allow good visibility of cars entering or leaving the fuel center. Irl., - KROGER LIMITED PIARTNERSI_IP l <' , +kgenda 1 6 P.a ...__3 k addition the applicant has submitted an attractive plan for the canopy, which will match the existing building materials and colors. Supplemental landscape screening along the property lines with the adjacent residential is also needed to provide a better screening where old landscaping has died or is insufficient. Staff, therefore, recommends approval subject to the conditions listed below. CONDITIONS 1. The site shall be developed substantially in accordance with the submitted "Conditional Use Site Plan", dated 6/30/10, and prepared by RLR Robertson Loia Roof Architects and Engineers. Signage depicted on the site plan is not approved. A separate sign package shall be submitted to the Current Planning Office for review and approval. Said plan has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. 2. The proposed canopy, fuel pumps, and kiosk shall be constructed in substantial accordance with the submitted elevation "Kroger Fuel R-5331800 Republic Road", dated July 1, 2010. Signage depicted on the elevations is not approved. A separate sign package shall be submitted to the Current Planning Office for review and approval. Said plan has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. 3. The applicant shall provide a photometric plan that also includes the canopy lighting for review and approval by City staff. Canopy lighting shall be recessed. All lighting on the site should be consistent with those standards recommended by the Illumination Engineering Society. 4. Signage for the proposed use shall be limited to that which is allowed by the City Zoning Ordinance. Striping on the canopy shall be limited to 10 feet on each side of the canopy or one-quarter of the length of each side. Signage on the canopy shall not be externally illuminated. There shall be no other signs, neon signs or neon accents installed on any wall area of the building, on the windows and / or doors, on the canopy or the canopy columns, or light poles. 5. There shall be no pennants, banners, streamers, strings of lights, portable signs, electronic display signs, or "flag" style signs on the site. 6. There shall be no outdoor vending machines, ice boxes, or the display of merchandise anywhere within the facility area. 7. The applicant shall provide on the site a hazard mitigation kit for fuel spills and an accessible telephone or notification system for emergency contact of the responsible party for the site. 8. Trim existing landscaping or relocate further back from the road to insure good site visibility of cars entering and leaving the fuel center. 9. Provide additional landscape planting for buffering / screening of the fuel center from the adjacent residential properties where existing landscaping is insufficient. KROGER LIMITED PjgRTNERSAIP I f genda Item 6 Page 4 NOTE. Further conditions may be 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 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 (CPTED) concepts and strategies as they pertain to this site. KROGER LIMITED PARTNER _ ,�►genda 51_�IP Item 6 ;ale 5 PROPOSED SITTEPLAN Y a PROPOSED SHELTER ELEVATION-' # DATE REQUEST ACTION 1 05/23/1999 Conditional Rezoning (R10 to 132) Granted 2 09/12/1995 Conditional Rezoning (R10 to 132) Granted Street Closure Granted 3 11/26/91 Conditional Use Permit (Car Sales) Granted 4 12/20/82 Conditional Rezoning (132 to A18) Granted ZONING HISTORY 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 pnecessary) KRGP INC., an Ohio comwafn ss gerund partner W of oft re attached) 2. List all businesses that have a parent -subsidiary' or affiliated business entity relationship with the applicant: (Attach fiat if neoessary) 13 Chedc here if itie applicant is NOT a corporation, partnership, firm, business. or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only If property owner is diftent from applicant. If the property owner Is a corporation, partnership, fine, 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 fist ff necessary) DDR -W Vir mW beach Repubk LL.C., a Delaware limited company Lit of nw dw and oRiom attached. 2. Ust all businesses that have a parent -subsidiary' or affiliated business entity relationship with the applicant: (Attach fist ff necessary) Parent Commr.. DDR- AU ReW Fund, LLC., a Delaware ti *W Rablir comoanv A7Bllste enfily lid Mme- !• O Check here if the property owner is NOT a corporation, partnership, firm, business, or other unincorporated organization. 8 I see Head pays far bw otos 0 l�al V �i Does an official ore of the employee City of Virginia Beach have an interest in the subject land? Yes No x If yes, what is the name of the official or employee and the nature of their interest? CorNOWNl Un wont AP0001 n Pap aoflo Rr*W 713=7 DISCLOSURE STAT1:'U" KROGER LIMITED PARTNERS41P I ,Agenda It.. 6 Pa gg10 =1 cam;l DISCLOSURE STATEMENT ADMTK NAL MSC UMURES List a1 known contractors or btroirteeaes to him or w11 povlde swviom whh rasped to the mgmded property use, N dudirp but not Wn bd to the paviders of sr+d t cWW services, real estate services, lkwndd wvbes, aoommft wvloss, and Wqd services: (Attach 1st N neoemery) ' 'Pa►ertt-subeidlary rablorteWpr' mems'a nlationstrip that adds when one corpora m dkadly or h**ctly owns dem pwewI g mora tlan 90 psrmt of#w volrg power d wwther corporatlon ' See Stab and howl (idmmmeM Condon of kdmmb Act, Va. Cods § 2.2-3101. 2 'Affikftd b mlrm a wft ralal n Wp' nt m -a m diortehttp, oder than perwd- a*Wdiwy mbWns*, that eodeb when p) one buskwe entlly hoe a cw*o kg awnsmWp kderod in the other buskw wft (1) a oorttrolirg owner lnora enlly b ale a conbolWg owner inthe other eri ty, or (Wwra b shad ma mo mart or control between the buskwe entilat. Fedora that should be ooneidaad kt doo.itktirg t m et Wwm of an aBill d busktese eniky rsbVond* kt kNb that the wm person or rAmhmlaly the acne pomm own or mmape the two end bx #we ars oon m or conm*V ed fmWs or awb; the budnew enlfts Shea to use of to ere allose or snVWyam or ofterwbe stere acdvklm, resources or pmoomel on a rreguler basis; or two b o0a imlee a close work g ntaticreltip between the entlles.' See 8bb and Local C3mwmwnt Contliot of lidsnm b Ad, Va. Cods 3 CEtt71FICATION: I ow* tltet the kft a ft ooraekted ttxasin b true and =mreb. 11, i that upon rooW of rtotltia/ort (podwrd) Md tlta q*doslon hex been scheduled for low 30 dop prbrto the sdtxddxd pu i w ft 1 1 m p I biro mow in paeka 71a trd lig WsW oor- - 1- b «t► upon ms tmpft by aniployaex of to DeporbmM of P*--* p to prtaft aptt wW vkw the site for purposes ofproowkt0 and evakts" 1Wx appk lm done G U=m Prkd None LGg...�a)n'�(raNvne PriM Ntame .fl�.Vk Cmdo"UnFWMAepeedm KROGER LIMITED PARTNERS4'IP I Agenda It 6 4 Sid ! !1 '11 The undersigned, R. Edward Bourdon, Jr., attorney for Kroger Limited Partnership I, does hereby verify and admowledge that John C. Lucas is the Mid - Atlantic Real Estate Manager for Kroger limited Partnership I and as such has authority to execute applications for use permits on behalf of the Company. . 1 Jr. REBJr/arhm ca John G Lucas, Krona Food 9torea AM\Condft1ona1UEePa=\Kroger\s800 Republic RoadNwhitney-j& a-25-io doe v' KROGER LIMITED Pi4ci�TNERS IP I "> 4 -Agenda ItP496 w YA1 IS ,_ ATTORNEYS AND COUNSELORS AT LAW Pfemown OFF= PMR - BUIU)WQ ONE 261 NIDET?mosu E Bouu mm JON M. AHERN R. EDWARD BOURDON. JR. FIFTH FLOOR VIRGINIA BEACIL Vommm 26462.2969 JAMES T. CROMWELL STEVEN L. STEVEN EMMERT OERSHEH TIL04KM: 767-499-6671 DAVID S. HOLLAND 8. LEVY FACE.: 767-466-6H6KIRK August �5� 2010 MICHAEL J. LEY. ��ubmu�• HOWARD R. SYKES, JR. Via HandUerf>, , RECEIVED Jack Whitney, Director Department of Planning Building 2, Room 115 PLANNING Municipal Center Virginia Beach, Virginia 23456 Attn: Karen Prochilo Re: Audwriration of John C. Lucas to vwm to applications on behalf of Kroner limited Parmawdp I To Whom It May Concern: The undersigned, R. Edward Bourdon, Jr., attorney for Kroger Limited Partnership I, does hereby verify and admowledge that John C. Lucas is the Mid - Atlantic Real Estate Manager for Kroger limited Partnership I and as such has authority to execute applications for use permits on behalf of the Company. . 1 Jr. REBJr/arhm ca John G Lucas, Krona Food 9torea AM\Condft1ona1UEePa=\Kroger\s800 Republic RoadNwhitney-j& a-25-io doe v' KROGER LIMITED Pi4ci�TNERS IP I "> 4 -Agenda ItP496 w Item #6 Kroger Limited Partnership I Conditional Use Permit 1800 Republic Road District 6 Beach September 8, 2010 APPROVED An application of Kroger Limited Partnership 1 for a Conditional Use Permit for automobile service station(fuel sales) on property located at 1800 Republic Road, District 6, Beach. CONDITIONS 1. The site shall be developed substantially in accordance with the submitted "Conditional Use Site Plan", dated 6/30/10, and prepared by RLR Robertson Loia Roof Architects and Engineers. Signage depicted on the site plan is not approved. A separate sign package shall be submitted to the Current Planning Office for review and approval. Said plan has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. The proposed canopy, fuel pumps, and kiosk shall be constructed in substantial accordance with the submitted elevation "Kroger Fuel R-533 1800 Republic Road", dated July 1, 2010. Signage depicted on the elevations is not approved. A separate sign package shall be submitted to the Current Planning Office for review and approval. Said plan has been exhibited to the Virginia Beach City Council and is on file in the Planning Department. 3. The applicant shall provide a photometric plan that also includes the canopy lighting for review and approval by City staff. Canopy lighting shall be recessed. All lighting on the site should be consistent with those :standards recommended by the Illumination Engineering Society. 4. Signage for the proposed use shall be limited to that which is allowed by the City Zoning Ordinance. Striping on the canopy shall be limited to 10 feet on each side of the canopy or one-quarter of the length of each side. Signage on the canopy shall not be externally illuminated. There shall be no other signs, neon signs or neon accents installed on any wall area of the building, on the windows and / or doors, on the canopy or the canopy columns, or light poles. 5. There shall be no pennants, banners, streamers, strings of lights, portable signs, electronic display signs, or "flag" style signs on the site. 6. There shall be no outdoor vending machines, ice boxes, or the display of merchandise anywhere within the facility area. 7. The applicant shall provide on the site a hazard mitigation kit for fuel spills and an accessible telephone or notification system for emergency contact of the responsible party for the site. 8. Trim existing landscaping or relocate further back from the road to insure good site visibility of cars entering and leaving the fuel center. Item #6 Kroger Limited Partnership I Page 2 9. The applicant shall install additional landscape planting to meet the required buffering/ screening of the fuel center from the adjacent residential properties where existing landscaping is insufficient. 10. The applicant shall install a white vinyl privacy fence eight feet in height on adjacent residential properties with the property owner's consent. 11. Hours of operation of the fuel facility shall not be beyond the hours of operation of the grocery store. NOTE: Further conditions may be 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 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 (CPTED) concepts and strategies as they pertain to this site. AYE 10 NAY 0 ANDERSON AYE BERNAS AYE FELTON HENLEY AYE HORSLEY AYE KATSIAS AYE LIVAS AYE REDMOND AYE RIPLEY AYE RUSSO AYE STRANGE AYE ABS 0 ABSENT 1 ABSENT Eddie Bourdon appeared on behalf of the applicant. Thomas Ingalls appeared in opposition. a Nom' CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: OLD DOMINION SOCCER CLUB (ODSC)/BROOK BAPTIST CHURCH, Conditional Use Permit, outdoor recreational facility, 4397 Wishart Road (GPIN 1478765206). Deferred on August 11, 2010. BAYSIDE DISTRICT. MEETING DATE: October 12, 2010 ■ Background: The applicant requests a Conditional Use Permit to allow the Old Dominion Soccer Club to utilize the church's open space for lighted soccer fields. The soccer club began with three teams in the late 1990s.'Now this travel soccer club has 34 teams with approximately 500 kids, ages 9 to 18. The Old Dominion Soccer Club markets itself as being the affordable alternative to travel soccer programs in Virginia Beach. According to the applicant, this club offers a low cost alternative to disadvantaged children, or simply those who cannot afford the higher fees of other travel clubs in the City. This field, on church property, is used to rotate teams and to receive coaching from the Director of Coaching. The soccer club's need for lights is typically during the weekday from 6:00 p.m. to 9:00 p.m. in the months of March through May and then again in the Fall, months August to November. The club uses other non -lit fields in the City, however, at this time there are no lighted, publicly owned, City fields available for the club's use. Based on complaints received concerning the lights and the noise from the generators, the Zoning Office issued the church a notice that a Conditional Use Permit is required for an outdoor recreational facility. Neither the church nor the club realized the need for such a permit and has now submitted this application for consideration. ■ Considerations: The Old Dominion Soccer Club markets itself as being the affordable alternative to other, more expensive travel soccer programs in Virginia Beach. With over 34 teams, the club uses the field at the church to rotate teams in to receive specialized coaching from the Director of Coaching. The soccer club and the church were unaware of the need for a Conditional Use Permit for use of the property for organized soccer play. Several complaints were received and a Zoning Inspector informed the church for the need for the Conditional Use Permit. As a result, the soccer club resorted to renting fields at the National Field Hockey Training center at a "significant cost." Staff has coordinated with the Old Dominion Soccer Club (ODSC)/Brook Baptist Church Page 2of3 Department of Parks and Recreation to assist the club in finding lighted fields to suit their needs but, unfortunately, the City does not have any available lighted fields for the club to use at this time. The soccer club fears that they will have no choice but to increase fees in order to continue to offer evening practices under the lights during the Spring and Fall months. The portable lights used at the church field are 30 feet high when fully extended. In an effort to thwart the noise from the diesel generators, bales of straw were placed around the base of the lights, however, according to neighbors this did little to mitigate the noise. Several neighbors also claimed that when the lights were on, they were distractive and hazardous to passing motorists. Staff has not been able to substantiate this as the lights are now removed and practically unnecessary this time of year. Staff was hopeful that perhaps the lights could be relocated away from existing dwellings and even modified with light guards or shields to alleviate the spillover, however, due to the size of the field and the type of lighting this does not seem likely. Unfortunately, due to the growing popularity of soccer, the City simply cannot accommodate the needs of every club. In this case, the result is spillover into a neighborhood that has caused inconvenience and according to several neighbors, a reduced ability to enjoy their properties. Based on this evaluation, Staff recommends that the Conditional Use Permit for the outdoor recreational facility without the lights be approved with the following conditions. Since the Planning Commission hearing, the applicant has agreed to all conditions as recommended by the planning staff. There was opposition to this request. ■ Recommendations: The Planning Commission, passing a motion by a recorded vote of 7-3, to recommend approval of this request to the City Council with the following conditions: 1. No lighting fixtures, portable or permanent, shall be utilized for outdoor recreational purposes for the soccer club or any other organized recreation league. 2. All parking for activities associated with the soccer club shall be accommodated on site. Old Dominion Soccer Club (ODSC)/Brook Baptist Church Page 3 of 3 ■ Attachments: Staff Review and Disclosure Statements Minutes of Planning Commission Hearing Location Map Recommended Action: Staff recommends approval. Planning Commission recommends approval. Submitting Department/Agency: Planning Department City Manager: l�— • �W� "SP F °s Old Dominion Soccer Club (ODSC) SITE SIZE: AICUZ: 14787652060000 BAYSIDE 4.9 acres Less than 65 dB DNL R40 RSD- 71 - sA.RO t rd7 { a40' �w R30. -""r•�`•••••••oan w+sr Z CUA Or ooiReiaearliorn/Fxfl1ly ata-wmwwc.r,d REQUEST: Conditional Use Permit (outdoor recreational facility) ADDRESS / DESCRIPTION: 4397 Wishart Road 10 September 8, 2010 Public Hearing APPLICANT: .OLD DOMINION SOCCER CLUB PROPERTY OWNER: BROOK BAPTIST CHURCH STAFF PLANNER: Carolyn A.K. Smith GPIN: ELECTION DISTRICT: SITE SIZE: AICUZ: 14787652060000 BAYSIDE 4.9 acres Less than 65 dB DNL SUMMARY OF REQUEST The applicant requests a Conditional Use Permit to allow the Old Dominion Soccer Club to utilize the church's open space for lighted soccer fields. The soccer club began with three teams in the late 1990s. Now this travel soccer club has 34 teams with approximately 500 kids, ages 9 to 18. The Old Dominion Soccer Club markets itself as being the affordable alternative to travel soccer programs in Virginia Beach. According to the applicant, this club offers a low cost alternative to disadvantaged children, or simply those who cannot afford the higher fees of other travel clubs in the City. This field, on church property, is used to rotate teams in to receive coaching frorn the Director of Coaching. The soccer club's need for lights is typically during the weekday from 6:00 p.m. to 9:00 p.m. in the months of March through May and then again in the Fall, months August to November. The club uses other non -lit fields in the City, however, at this time there are no lighted, publicly owned, City fields available for the club's use. Based on complaints received concerning the lights and the noise from the generators, the Zoning Office issued the church a notice that a Conditional Use Permit is required for an outdoor recreational facility. Neither the church nor the club realized the need for such a permit and has now submitted this application for consideration. EXISTING LAND USE: church with parking lot and open Feld SURROUNDING LAND North: Wishart Road USE AND ZONING: Wooded area, single family dwellings / R40 Residential District South: a Lake East: . Single family dwellings / R-20 Residential District West: . Single family dwelling, Lynnhaven House historic property / R- 20 Residential District NATURAL RESOURCE AND CULTURAL FEATURES: The site is located within the Chesapeake Bay watershed. COMPREHENSIVE PLAN: This property is located with the Suburban Area with general planning principles that focus on preserving and protecting the overall character, economic value, and aesthetic quality of the stable neighborhoods. The purpose of these planning principles is to reinforce the suburban characteristics of commercial centers and other non-residential areas that make up part of the Suburban Area. This can be accomplished by having both new residential and non-residential development or uses maintain compatibility with the surroundings; propose high quality and attractive buildings and sites; employ environmentally responsible practices; and, establish adequate buffers between residential and nonresidential uses with consideration to the type, size and intensity of the proposed use and its relationship to the surrounding uses. IMPACT ON CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) / CAPITAL IMPROVEMENT PROGRAM (CIP): The site is located on the south side of Wishart Road, a two-lane local street that runs east/west between Independence Boulevard and North Witchduck Road. Wishart Road is not shown on the MTP Map nor are any CIP projects planned for this roadway. TRAFFIC: Street Name Present Volume Present Capacity Generated Traffic Wishart Road No Data 6,200 ADT (Level of Existing Land Use — 86 Available Service "C") - 9,900 weekday ADT ADT' (Level of Service Proposed Land Use 3— 230 "D") ADT Average Daily Trips ' as defined by 9,400 square foot church a as defined by the addition of 2 soccer fields r-OW,W 4 EVALUATION AND RECOMMENDATION The Old Dominion Soccer Club markets itself as being the affordable alternative to other, more expensive travel soccer programs in Virginia Beach. With over 34 teams, the club uses the field at the church to rotate teams in to receive specialized coaching from the Director of Coaching. The soccer club and the church were unaware of the need for a Conditional Use Permit for use of the property for organized soccer play. Several complaints were received and a Zoning Inspector informed the church for the need for the Conditional Use Permit. As a result, the soccer club resorted to renting fields at the National Field Hockey Training center at a "significant cost." Staff has coordinated with the Department of Parks and Recreation to assist the club in finding lighted fields to suit their needs but, unfortunately, the City does not have any available lighted fields for the club to use at this time. The soccer club fears that they will have no choice but to increase fees in order to continue to offer evening practices under the lights during the Spring and Fall months. The portable lights used at the church field are 30 feet high when fully extended. In an effort to thwart the noise from the diesel generators, bales of straw were placed around the base of the lights, however, according to neighbors this did little to mitigate the noise. Several neighbors also claimed that when the lights were on, they were distractive and hazardous to passing motorists. Staff has not been able to substantiate this as the lights are now removed and practically unnecessary this time of year. Staff was hopeful that perhaps the lights could be relocated away from existing dwellings and even modified with light guards or shields to alleviate the spillover, however, due to the size of the field and the type of lighting this does not seem likely. Unfortunately, due to the growing popularity of soccer, the City simply cannot accommodate the needs of every club. In this case, the result is spillover into a neighborhood that has caused inconvenience and according to several neighbors, a reduced ability to enjoy their properties. Based on this evaluation, Staff recommends that the Conditional Use Permit for the outdoor recreational facility without the lights be approved with the following conditions. CONDITIONS 1. No lighting fixtures, portable or permanent, shall be utilized for outdoor recreational purposes for the soccer club or any other organized recreation league. 2. All parking for activities associated with the soccer club shall be accommodated on site. NOTE. Further conditions may be 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 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 (CPTED) concepts and strategies as they pertain to this site. r' FIELD OLD DOMINION S Agenda 1 07/09/02 Subdivision Variance Granted CUP (open spacepromotion) 2 12/12/00 CUP museum, artgallery) Granted ZONING, HISTORY F-(72Z1WdV#m yam, APPLICANT �t�5 thelicant is a poi )tion, partnership, It, bii y tr unincorporated kV organization. complete UIQ 1LR�« e applicant: name followed by the nannies of all officers. members, trustees, rs, etc. below. (Attach fist 9 na essmy) Dm*van n Soccer {tea: Jas ( Q. Mica Vsr (we Pn*k 4, .ani t % Mary than (Treasurer). Susan Muneil (fit asati Diane oft Mocretary) 2. Last all:buusses #tat have a parent -subsidiary' or affitlatietl btWnsa er re lab on:W* with the t (Attach fist if necessary) 0 Check here If the applicant Is NOT a coipoathon, partnership, *M, bushnnes, or other nsncorporated orgarszatim. PROPERTY OYMER DISCLOSURE Comptete this section os y I pnWedy owner is dent from apphcant. If etre T y owner is a corporation, partnership, firm, business, or c ftw unincorporaW organization, complete the follonr g« 1. List tMa property owner name followed by the names of all offers, membem, trustee, partnets, atc. below. (Attach list if necessary) JX Bob Swain (true), t}rnrid Howard (Padw). Tins Howard (Church secretary) c 2. List all businesses that have a parent iary' or affiliated business entltyz with the applicant (Atli fist #necessary) 0 Check here if the property owner is NOT a corpow mt, partnership, firm„ but*xm, or ottw unincorporaW organization. n Does an official or employee of the 0ty of Virginia aeach have an interest in the Sd*vd nd? Yes N xxx If yes, mit is the nem of the official or employee and the natures of their interest? yr DISCLOSURE STATEMENT',,',, 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 servers: (Attach fist if necessary) ' 'Parent -subsidiary relationship" means 's relationship that exists when one corporation direly or indirectly owns shares possessing more than Sb percent of the voting power of another ion." See State aux! Local Government Conflict of Interests Act, Va. Code S 2.2-3101, P '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 ttne otfw entity, or (III) there is shared management or control between the business entitles, Factors that should be considered in determining the existence of an affiliated business erdity relationWo Include that the some person or substantially the saner person own or manage the two entities; there are common or commingled funds or assets; the business entities share the use of the some offices or employees or otherwise share activities, resources or personnel on a regular basis; or there is otherwise a dose wrote relationship between the entities.* See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. CERTIFICATION: i fro" that the Lntomration contained herein is In* and a=ffate. I undwstartd flat, upon recelpt of notification (postcard) that the application has been scheduled for public'hearkV, I arm responsible for ung and poebw the sign on the vjbjW property at West 30 yrs prig to the WNKkAW plc hewft 6=wdft to the tit hwtians in this pacluW. The uncie►sWied also orients to entry upon Etre u4ect Property by errvi ees of the Departrnent of Plano ft to photogr ► p2d view the site for purposes of processing and a tttds applica tti . Print Narne Print Name Use Pop 10 Of 10 Revised 7WW DISCLOSURE OLD DOMINION SO( Agenda lb ER '© Page 8 Item #10 Old Dominion Soccer Club (ODSC) Conditional Use Permit 4397 Wishart Road District 4 Bayside September 8, 20110 APPROVED An application of Old Dominion Soccer Club (ODSC) for a Conditional Use Permit for a outdoor recreational facility on property located at 4397 Wishart Road, District 4, Bayside. CONDITIONS 1. No lighting fixtures, portable or permanent, shall be utilized for outdoor recreational purposes for the soccer club or any other organized recreation league. 2. All parking for activities associated with the soccer club shall be accommodated on site. NOTE: Further conditions may be 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 of Planning / Permits and Inspections Division, and the issuance of a Certiflcate 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 (CPTED) concepts and strategies as they pertain to this site. Darrell Nolan appeared on behalf of the applicant. Marc Allen, Harriet Frenzel, Robert Frenzel, Kathleen Losey, June Myers, Georgia Fletcher, Chuck Plimpton all appeared in opposition. AYE 7 NAY 3 ABS 0 ABSENT 1 ANDERSON AYE BERNAS NAY FELTON ABSENT HENLEY NAY HORSLEY AYE KATSIAS NAY LIVAS AYE REDMOND AYE RIPLEY AYE RUSSO AYE STRANGE AYE Darrell Nolan appeared on behalf of the applicant. Marc Allen, Harriet Frenzel, Robert Frenzel, Kathleen Losey, June Myers, Georgia Fletcher, Chuck Plimpton all appeared in opposition. L. APPOINTMENTS ENERGY ADVISORY COMMITTEE HEALTH SERVICES ADVISORY BOARD HUMAN RIGHTS COMMISSION TIDEWATER YOUTH SERVICES COMMISSION VIRGINIA BEACH TOMORROW COMMISSION WETLANDS BOARD M. UNFINISHED BUSINESS N. NEW BUSINESS O. ADJOURNMENT PUBLIC COMMENT Non -Agenda Items Each Speaker will be allowed 3 minutes and each subject is limited to 3 Speakers CITY COUNCIL RETREAT 8:30 AM — 5:00 PM FRIDAY and SATURDAY January 21-22, 2011 CONFERENCE ROOM Suite 1000 222 Central Park Avenue TOWN CENTER CITY COUNCIL WORKSHOP CANCELLED NOVEMBER 2, 2010 GENERAL AND LOCAL ELECTIONS CITY COUNCIL / SCHOOL BOARD "FIVE YEAR FORECAST" Building No. 19 TUESDAY, NOVEMBER 16, 2010 CITY OF VIRGINIA BEACH BRIEFINGS: SUMMARY OF COUNCIL ACTIONS UNAUDITED FY 2010 FINANCIAL Patricia Phillips, DATE: 09/28/2010 B STATEMENT Director — PAGE: 1 E D S Finance 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 I/A BRIEFINGS: UNAUDITED FY 2010 FINANCIAL Patricia Phillips, STATEMENT Director — Finance B VRS DEFINED BENEFITS vs. DEFINED Patricia Phillips, CONTRIBUTION OPTIONS Director— Finance C HOMELESS ASSISTANCE UPDATE Andy Friedman, Director — Housing and Neighborhood Preservation 1UII1/IV/V/ CERTIFICATE OF CLOSED SESSION CERTIFIED 10-0 Y A Y Y Y Y Y Y Y Y Y E F- I MINUTES — September 14, 2010 APPROVED 10-0 Y A Y Y Y Y Y Y Y Y G/H-I MAYOR'S PRESENTATIONS RESOLUTIONS IN RECOGNITION a. Chesapeake Bay Wine Classic Foundation b. Max Bartoli and Ethan Marten — "Atlantis Down" 2 RESOLUTION TO DECLARE: Sept 28""VB City Public Schools Day" 3 WESTERN BAYSIDE SUMMER CAMPS Barbara A. Brinson, Youth Opportunities Coordinator I-1 PUBLIC HEARINGS: LEGISLATIVE AGENDA FOR 2011 4 Speakers GENERAL ASSEMBLY 2 PERSONAL PROPERTY TAX No speakers EXEMPTIONS a. Back Bay Restoration Foundation Ltd. b. Lynnhaven River Now C. REN Group d. Virginia Beach Police Foundation, Inc. 3 DEPARTMENT OF JUSTICE No speakers Byme Memorial Justice Assistance Grant CITY OF VIRGINIA BEACH Ordinances to EXEMPT certain ADOPTED, BY 10-0 Y A Y Y Y Y Y Y SUMMARY OF COUNCIL ACTIONS Y organizations from Personal Property CONSENT DATE: 09/28/2010 B Taxes: PAGE: 2 E D S a. Back Bay Restoration Foundation, Ltd. 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 1 O O O S H L R Y S S N N D J/K-1 Ordinances to EXEMPT certain ADOPTED, BY 10-0 Y A Y Y Y Y Y Y Y Y organizations from Personal Property CONSENT Taxes: a. Back Bay Restoration Foundation, Ltd. b. Lynnhaven River Now c. REN Group d. Virginia Beach Police Foundation, Inc. 2 Ordinance to AMEND the Eco Dev EDIP ADOPTED, BY 10-0 Y A Y Y Y Y Y Y Y Y Y Policy/Procedure/AUTHORIZE amended CONSENT Policy 3 Ordinance to AUTHORIZE/EXECUTE ADOPTED, BY 10-0 Y A Y Y Y Y Y Y Y Y Y Mutual Aid Agreement for Emergency CONSENT Fire/EMS with Currituck County, North Carolina 4 Resolution to DIRECT City Auditor to ADOPTED, 10-0 Y A Y Y Y Y Y Y Y Y Y conduct audit of the Procurement Card BYC ONSENT Program 5 Resolution to ENCOURAGE ADOPTED, BY 10-0 Y A Y Y Y Y Y Y Y Y Y preservation of Historic Brick Sidewalks CONSENT at Cavalier Shores 6 Ordinances to ADOPTED, BY 10-0 Y A Y Y Y Y Y Y Y Y Y ACCEPT/APPROPRIATE: CONSENT a. $314,485 from Federal revenue to Housing/Neighborhood Preservation to assist Homeless Veterans/individuals b. $198,676 from US Dept of Justice Edward Byrne Assistance Grant re: Public Safety/Criminal Processing: (1) $50,000 to Police/Sheriff re: Law Enforcement Training Academy (2) $44,496 to Police re: Digital Storage (3) $24,000 to Circuit Court Clerk re: Office Assistant (4) $44,000 to Sheriff re: Courthouse Security (5) $18,720 to Juvenile Domestic Relations Court re: Records Expungement (6) $15,050 to Community Corrections/and Pretrial re: Barterer's Intervention (7) $2,410 to Community Corrections/Pretrial re: Intoxilyzer c. $1,000 from National Library Service (NLS)/$1,085 in donations to Library Gift Fund re talking books /playback marhinex CITY OF VIRGINIA BEACH Ordinance to TRANSFER $26,512 from ADOPTED, BY 10-0 Y A Y Y Y Y Y Y SUMMARY OF COUNCIL ACTIONS Y Y General Fund Reserve to Clerk of the CONSENT DATE: 09/28/2010 B Circuit Court/ reinstate full-time City PAGE: 3 E D S position in the Clerk's Office L E D H E W AGENDA L D S I A E J S U I Y 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 1 O O 10-0 O S H L R Y S S N N D 7 Ordinance to TRANSFER $26,512 from ADOPTED, BY 10-0 Y A Y Y Y Y Y Y Y Y Y General Fund Reserve to Clerk of the CONSENT Circuit Court/ reinstate full-time City position in the Clerk's Office 8 Resolution to DECLARE September 28, ADDED and 10-0 Y A Y Y Y Y Y Y Y Y Y 2010 "Virginia Beach City Public Schools ADOPTED, BY Day" CONSENT 9 Resolution RECOGNIZING Chesapeake ADDED and 10-0 Y A Y Y Y Y Y Y Y Y Y Bay Wine Classic Foundation's 20'h ADOPTED, BY Anniversary and more than $3-M charitable CONSENT funds raised 10 Resolution RECOGNIZING Max Bartoli ADDED and 10-0 Y A Y Y Y Y Y Y Y Y Y and Ethan Martin for the filming of ADOPTED, BY "Atlantis Down" in Virginia Beach CONSENT L-1 S. DAWSON/SUSAN P. STERLING DEFERRED 10-0 Y A Y Y Y Y Y Y Y Y Y Nonconforming Use to allow expansion of INDEFINITELY existing dwelling at 801 Baltic Avenue. BY CONSENT BEACH — DISTRICT 6 2 BEN JOHNSON Modification of APPROVED/ 10-0 Y A Y Y Y Y Y Y Y Y Y Condition No. 1 at 612 Nevan Road to CONDITIONED expand tattoo parlor LYNNHAVEN — BY CONSENT DISTRICT 5 3 CAVALIER GOLF & YACHT CLUB/ APPROVED/ 10-0 Y A Y Y Y Y Y Y Y Y Y JOHN MILLESON, SR. CUP re outdoor CONDITIONED recreation at 1052 Cardinal Road. BY CONSENT LYNNHAVEN - DISTRICT 5 4 GAIL HARTS PERFORMING ARTS APPROVED, 10-0 Y A Y Y Y Y Y Y Y Y Y GROUP, INC./TIBBITT PROPERTIES BY CONSENT ACREDALE, L.L.C. CUP re indoor recreation at 5224 Indian River Road, 113-116. KEMPSVILLE - DISTRICT 2 5 OCEAN RENTAL PROPERTIES, LLC APPROVED/ 10-0 Y A Y Y Y Y Y Y Y Y Y Modification of Conditional COZ approved PROFFERED September 12, 2000) at 3202 Holly Road to BY CONSENT modify all previously approved Proffers to allow access from Holly Road in lieu of access through Huntwick Condominium development. BEACH - DISTRICT 6 6 GEO I, L.L.C. c/o JOHN GEORGHIOU DEFERRED 10-0 Y A Y Y Y Y Y Y Y Y Y COZ from R-10 to Conditional R-51) INDEFINITELY (WF) at 4480/4488 Indian River Road to BY CONSENT allow residential development with workforce housing. CENTERVILLE — DISTRICT 1 7 LITTLE THEATRE OF VIRGINIA APPROVED/ 10-0 Y A Y Y Y Y Y Y Y Y Y BEACH at 550 Barberton Drive to allow CONDITIONED roadside guide signs in public r -o -w along BY CONSENT Birdneck/Laskin Roads. BEACH — DISTRICT 6 CITY OF VIRGINIA BEACH APPOINTMENTS: SUMMARY OF COUNCIL ACTIONS RESCHEDULED B Y C O N DATE: 09/28/2010 B N S U S ENERGY ADVISORY COMMITTEE PAGE: 4 E D S HEALTH SERVICES ADVISORY L E D H E W AGENDA L D S I E J S U I ITEM 4 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 M APPOINTMENTS: RESCHEDULED B Y C O N S E N S U S ENERGY ADVISORY COMMITTEE HEALTH SERVICES ADVISORY BOARD HUMAN RIGHTS COMMISSION VIRGINIA BEACH TOMORROW COMMISSION HISTORICAL REVIEW BOARD Reappointed 2 year term Sheila P. Braithwaite 11/01/10— 1/01/10— I Marjorie Marjorie B. Smallie 10/31/12 N/O/P ADJOURNMENT 6:34 PM