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HomeMy WebLinkAboutMARCH 13, 2012 AGENDACITY OF VIRGINIA BEACH "COMMUNITY FOR A LIFETIME" CITY COUNCIL MAYOR WILLIAM D. SESSOMS, JR., At -Large VICE, MAYOR LOUIS R. JONES, Bayside -District 4 GLENN R. DAVIS, Rose Hall -District 3 WILLIAM R. DeSTEPH, At -Large HARRY E. DIEZEL, Kempsville -District 2 ROBERT M. DYER, Centerville - District I BARBARA M HENLEY, Princess Anne — District 7 JOHN D. MOSS, At -Large JOHN E. UHRIN, Beach — District 6 ROSEMARY WILSON, At -Large JAMES L. WOOD, Lynnhaven -District 5 CITY COUNCIL APPOINTEES CITY MANAGER -JAMES K. SPORE CITY ATTORNEY - MARK D. STILES CITY ASSESSOR - JERALD D. BANAGAN CITY AUDITOR-LYNDONS. REMIAS CITY CLERK - RUTH HODGES FRASER, MMC CITY COUNCIL AGENDA 13 MARCH 2012 I. CITY MANAGER'S BRIEFINGS -Conference Room - A. LYNNHAVEN SGA Final Draft Jack Whitney, Director — Planning Department II. III IV M B. NEIGHBORHOOD DREDGING SSD PROJECTS David L. Hansen, Deputy City Manager 1. Chesopeian Colony 2. Shadowlawn/Harbour Point CITY HALL BUILD 2401 COURTHOUSE D1 VIRGINIA BEACH, VIRGINIA 234564 PHONE: (757) 385 FAX (75 7) 385-: E- MAIL: Ctycncl@vbgov. TPO LIGHT RAIL Public Private Partnership Request — (requested by Councilman John Moss) CITY COUNCIL LIAISON REPORTS CITY COUNCIL COMMENTS CITY COUNCIL AGENDA REVIEW VI. INFORMAL SESSION -Conference Room - A. CALL TO ORDER — Mayor William D. Sessoms, Jr. B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION 4:00 PM 5:00 PM VII. FORMAL SESSION - City Council Chamber - 6:00 PM A. CALL TO ORDER — Mayor William D. Sessoms, Jr. B. INVOCATION: Chaplain George Chandler Virginia Beach Police 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 G. FORMAL SESSION AGENDA 1. CONSENT AGENDA I. MAYOR'S PRESENTATION 1. RESOLUTION IN RECOGNITION a. American Red Cross Month February 28, 2012 J. PUBLIC HEARING 1. ELECTION POLLING LOCATION CHANGE - Lexington Precinct Change from Kempsville Church of God to Larkspur Middle School K. ORDINANCES/RESOLUTIONS 1. Ordinances to AMEND the City Code: a. Section 10-1 re Changing the polling location of the Lexington Precinct b. Section 5-531 re Keeping dogs under restraint — Leash Law C. Sections 27-21, 27-22 and 27-25 re the disposal of unclaimed property d. ADD Chapter 35.4 re "Tourism Zones" and CREATE the Resort Tourism Zone e. ADOPT policy to provide evaluation GUIDELINES for the Tourism Project Gap Financing Program C', 2. Resolution to PROVIDE the issuance and sale of General Obligation Bonds in the amount of $72 -Million and General Obligation Public Improvement Refunding Bonds in the amount of $60 -Million to refund previously authorized and issued 3. Resolution to AUTHORIZE the City Manager to establish Post -Issuance Compliance Policies and Procedures for tax-exempt Bonds 4. Ordinance to ESTABLISH "CIT-UASI Interoperable Communications Technology expansion", ACCEPT $2.1 -Million from the U.S. Department of Homeland Security and APPROPRIATE these funds for the implementation of the Hampton Roads Overlay Regional Interoperability Network (ORION) 5. Ordinance to AUTHORIZE a temporary encroachment into a portion of City -owned right-of-way for 56th STREET DEVELOPMENT COMPANY, L.L.C. to construct and maintain a conduit casing pipe re an irrigation line at Matthews Green Road 6. Ordinances and Resolution re PLEASURE HOUSE POINT: a. AUTHORIZE the City Manager to EXECUTE an Agreement of Purchase and Sale with The Trust for Public Land re acquisition b. ESTABLISH a Capital Improvement Project (CIP) to ACCEPT and APPROPRIATE various grants and TRANSFER funds from "Open Space Site Acquisition — Phase P' Issuance and sale of General Obligation Bonds, not to exceed $6 -Million, to the Virginia Water Facilities Revolving Fund 7. Ordinances to ACCEPT and APPROPRIATE funds from the Virginia Department of Criminal Justice Services to the Department of Human Services (DHS) and TRANSFER funds to the DHS FY2011-12 Operating Budget: a. $25,000 re enhanced prevention of juvenile delinquency b. $38,482 re youth multi -systemic therapy in the Juvenile Court Services Unit L. PLANNING 1. Application of SENIOR'S UNLIMITED LIFESTYLES, INC./WILLIE DONALD MARTIN, SR. for a Modification of Condition No. 6 of a Conditional Use Permit (approved January 26, 2010) re a senior housing facility at 5827 Burton Station Road DISTRICT 4 - BAYSIDE RECOMMENDATION APPROVAL 2. Application of MID ATLANTIC AUTO/DZR, LLC for a Conditional Use Permit re bulk storage/auto repair/truck rental at 184 South Plaza Trail DISTRICT 3 - ROSE HALL RECOMMENDATION APPROVAL 3. Ordinance To AMEND Section 902(b)(7) of the City Zoning Ordinance (CZO) re the maximum density of multifamily dwellings RECOMMENDATION M. APPOINTMENTS APPROVAL BOARD OF BUILDING CODE APPEALS COMMUNITY SERVICES BOARD HEALTH SERVICES ADVISORY BOARD HUMAN RIGHTS COMMISSION LED SIGNS MILITARY ECONOMIC DEVELOPMENT ADVISORY COMMITTEE PARKS and RECREATION COMMISSION PERSONNEL BOARD THE PLANNING COUNCIL N. UNFINISHED BUSINESS O. NEW BUSINESS P. ADJOURNMENT If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 385-4303 PUBLIC COMMENT Non -Agenda Items Each Speaker will be allowed 3 minutes and each subject is limited to 3 Speakers FY 2 012-2 013 BUDGET HEARINGS March 27 Proposed Budget Presented to City Council - Council Chamber April 3 Budget Workshop - Council Chamber - Time TBD April 5 Budget Open House (all departments) - Convention Center — 6:00-8:00 PM April 10 Budget Workshop - Council Chamber - Time TBD April 17 Budget Workshop - Council Chamber - Time TBD April 18 Budget Public Hearing - Cox High School - 6:00 PM April 24 Budget Workshop - Council Chamber - Time TBD April 24 Public Hearing - Council Chamber - 6:00-8:00 PM May I Budget Reconciliation Workshop - Council Chamber - Time TBD May 8 BudgetAdoption - Council Chamber - 6:00 PM 2012 CITY HOLIDAYS Monday, May 28 Wednesday, July 4 Monday, September 3 Monday, November 12 Thursday, November 22 Friday, November 23 Monday, December 24 Tuesday, December 25 Agenda 03/13/2012gw Memorial Day Independence Day Labor Day Veteran's Day Thanksgiving Day Day After Thanksgiving Christmas Eve (half-day) Christmas Day I. CITY MANAGER'S BRIEFINGS -Conference Room- 4:00 PM A. LYNNHAVEN SGA Final Draft Jack Whitney, Director — Planning Department B. NEIGHBORHOOD DREDGING SSD PROJECTS David L. Hansen, Deputy City Manager 1. Chesopeian Colony 2. Shadowlawn/Harbour Point II. TPO LIGHT RAIL Public Private Partnership Request — (requested by Councilman John Moss) III. CITY COUNCIL LIAISON REPORTS IV. CITY COUNCIL COMMENTS V. CITY COUNCIL AGENDA REVIEW VI. 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 VII. FORMAL SESSION - City Council Chamber - 6:00 PM A. CALL TO ORDER — Mayor William D. Sessoms, Jr. Bo INVOCATION: Chaplain George Chandler Virginia Beach Police 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 February 28, 2012 G. FORMAL SESSION AGENDA H. CONSENT AGENDA MAYOR'S PRESENTATION 1. Resolution in Recognition a. American Red Cross Month -WHEREAS. The .American Red Cross has touchedmany lives in `Virginia Beach, the Coastal 'Virginia Region as tive[[as those in needacross the country andaroundthe tivor[ci- -WHERE S: During "American Red Cross Month", tine thank those who contribute to the mission of the Red Cross, -whether through time, money or blood; andtive invite others to support the Red Cross in helping people in needdown the street, across the country and around the wor[4- -WHEREAS: The .American Red Cross is synonymous with he[pingpeop[e andhas been doing so for more than one HundredThirty years. Throughout the past year, the American Red Cross launched hundreds of disaster relief oyerations in the United States to hep people affectedby fires, floods, hurricanes andtornadoes. The American Red Cross also supported major international disasters, including response to both the Japan earthquake and tsunami while continuing its work on the 2010 3{aiti earthquake response andrecovery; 'WHEREAS. In the Coastal'Virginia Region, the Red Cross works tirelessly through its ', dedicatedstaff andvolunteers to support us when disaster strikes, when someone needs life- saving blood or the comfort of a helping hand. It provides 24-hour support to members of the military, veterans and their familtes, andprovides training in CPR, aquatics safety andfirst ai4- an,� ^WHEREAS: For nearly loo years, 'United States Presidents have ca[[edon the American people to support the Red Cross andits humanitarian mission. Our community depends on the American Red Cross andbecause it is not agovernment agency, the Red Cross depends on support from the public to continue its humanitarian work. This is especially important in these cha[[enging economic times which impact the Red Cross andmany people in our community and across the nation. NO -W, T3[ERE-TORE, BE IT RESOLVED, that the 'Virginia Beach City Council, by virtue of the authority vested in each of us by the Constitution and[ativs of the Commonwealth hereby encourage all Americans to support this organization and its noble humanitarian mission in declaring March 2012 as a AMERICANRED CROSS MOTPT5f IN^WITN'ESS "WHEREOF, tine have hereunto set our hands andseals this 13`h day of March, in the year of our LordTtivo Thousand2`welve. Councilman Glenn R Davis Councibnan 9&r y Dieze[ Counci[Lady Barbara Henley Councilman yohn D. Mass Counci[Lady Rosemary' Wilson Councilman William R °Bill° DeSteph Councilman Robert M `Bob" Dyer V -e Mayor Louis R Jones Councibnan5ohn B. 41hrin Councilman games L. Wood Mayor Wi[liam D. 'Will'sessoms PUBLIC HEARING 1. ELECTION POLLING LOCATION CHANGE - Lexington Precinct Change from Kempsville Church of God to Larkspur Middle School .r q amu,,, ,i♦ PUBLIC HEARING CHANGING POLLING LOCATION CITY OF VIRGINIA BEACH The City Council of Virginia Beach, Virginia at its formal session on Tuesday, March 13, 2012, at 6:00 P.M. will consider an ordinance to make changes to the polling location for the Lexington Precinct. The ordinance proposes that the Lexington Precinct polling place be moved from Kempsville Church of God at 4422 Princess Anne Road to Larkspur Middle School at 4696 Princess Anne Road. After adoption by City Council, these changes will become effective following approval by the United States Department of Justice, pursuant to the Voting Rights Act of 1965, as amended. A description and map of the polling place change, as well as a copy of the aforesaid ordinance, may be inspected in the Voter Registrar's Office, which is located at 2449 Princess Anne Road, Municipal Center, Building 14, Virginia Beach, Virginia, 23456. The Public Hearing will be conducted in the City Council Chamber of the Administration Building (Building #1) at the Municipal Center. If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 385-4303; Hearing impaired, call: TDD only 711 (TDD — Telephonic Device for the Deaf). Ruth Hodges Fraser, MMC City Clerk VP March 4, 2012 22922562 K. ORDINANCES/RESOLUTIONS 1. Ordinances to AMEND the City Code: a. Section 10-1 re Changing the polling location of the Lexington Precinct b. Section 5-531 re Keeping dogs under restraint — Leash Law C. Sections 27-21, 27-22 and 27-25 re the disposal of unclaimed property d. ADD Chapter 35.4 re "Tourism Zones" and CREATE the Resort Tourism Zone e. ADOPT policy to provide evaluation GUIDELINES for the Tourism Project Gap Financing Program 2. Resolution to PROVIDE the issuance and sale of General Obligation Bonds in the amount of $72,000,000 and General Obligation Public Improvement Refunding Bonds in the amount of $60,000,000 to refund previously authorized and issued Bonds 3. Resolution to AUTHORIZE the City Manager to establish Post -Issuance Compliance Policies and Procedures for tax-exempt Bonds 4. Ordinance to ESTABLISH "CIT-UASI Interoperable Communications Technology expansion", ACCEPT $2,100,000 from the U.S. Department of Homeland Security and APPROPRIATE these funds for the implementation of the Hampton Roads Overlay Regional Interoperability Network (ORION) 5. Ordinance to AUTHORIZE a temporary encroachment into a portion of City -owned right-of-way for 56th STREET DEVELOPMENT COMPANY, L.L.C. to construct and maintain a conduit casing pipe re an irrigation line at Matthews Green Road 6. Ordinances and Resolution re PLEASURE HOUSE POINT: a. AUTHORIZE the City Manager to EXECUTE an Agreement of Purchase and Sale with The Trust for Public Land re acquisition b. ESTABLISH a Capital Improvement Project (CIP) to ACCEPT and APPROPRIATE various grants and TRANSFER funds from "Open Space Site Acquisition — Phase P' C. Issuance and sale of General Obligation Bonds, not to exceed $6 -Million, to the Virginia Water Facilities Revolving Fund 7. Ordinances to ACCEPT and APPROPRIATE funds from the Virginia Department of Criminal Justice Services to the Department of Human Services (DHS) and TRANSFER funds to the DHS FY2011-12 Operating Budget: a. $25,000 re enhanced prevention of juvenile delinquency b. $38,482 re youth multi -systemic therapy in the Juvenile Court Services Unit CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Amend Section 10-1 of the City Code to Change the Polling Location of the Lexington Precinct MEETING DATE: March 13, 2012 ■ Background: Kempsville Church of God has served as the polling location for the Lexington Precinct for many years. Larkspur Middle School is willing to serve as the polling location for the Lexington Precinct. ■ Considerations: This precinct change will be made based on the request of the current precinct location. Larkspur Middle School meets the requirements of the Americans with Disabilities Act. If adopted by Council, this change will become effective upon approval by the U.S. Department of Justice, pursuant to the Voting Rights Act of 1965, as amended, beginning with the Primary Election, June 12, 2012 (if held). ■ Public Information: Public notice of the proposed change was published in the Beacon on March 4 and March 11, and this item also was advertised in the same manner as all other agenda items. All voters in the precinct will receive new voter cards with the name and address of the new polling location. Finally, advertisements will be placed in the newspaper prior to the June Primary Election. ■ Attachments: Ordinance and Map Recommended Action: Approval Submitting Department/Agency: Voter Registrar City Manager: S - -'c')rt 1 AN ORDINANCE TO AMEND SECTION 10-1 OF THE CITY 2 CODE TO CHANGE THE POLLING LOCATION OF THE 3 LEXINGTON PRECINCT 4 5 SECTION AMENDED: § 10-1 6 7 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 8 BEACH, VIRGINIA: 9 10 That Section 10-1 of the City Code is hereby amended and reordained, to read 11 as follows: 12 13 Sec. 10-1. Establishment of precincts and polling places. 14 15 There are hereby established in the city the following precincts and their 16 respective polling places, as set forth below: 17 18 Precinct Polling Place 19 20 Alanton Alanton Elementary School 21 Aragona Kemps Landing Magnet School 22 Arrowhead Arrowhead Elementary School 23 Avalon Avalon Church of Christ 24 Baker Ebenezer Baptist Church 25 Bayside Bayside Elementary School 26 Bellamy Salem Middle School 27 Blackwater Blackwater Fire Station 28 Bonney Holland Road Baptist Church 29 Brandon Brandon Middle School 30 Brookwood Bow Creek Recreation Center 31 Buckner Green Run Baptist Church 32 Cape Henry Research and Enlightenment Building (Edgar 33 Cayce Library) 34 Capps Shop Back Bay Christian Assembly 35 Centerville Centerville Elementary School 36 Chesapeake Beach Bayside Baptist Church 37 Chimney Hill Congregation Beth Chaverim 38 College Park College Park Elementary School 39 Colonial Colonial Baptist Church 40 Colony Lynnhaven Colony Congregational Church 41 Corporate Landing Corporate Landing Middle School 42 Courthouse Courthouse Fire Station 43 Creeds Creeds Fire Station 44 Cromwell Salem United Methodist Church 45 Culver Ocean Lakes High School 46 Dahlia Green Run High School 47 Davis Corner Bettie F. Williams Elementary School 48 Eastern Shore Eastern Shore Chapel 49 Edinburgh St. Aidan's Episcopal Church 50 Edwin Kempsville Recreation Center 51 Fairfield Kempsville Presbyterian Church 52 Foxfire Princess Anne Middle School 53 Glenwood Glenwood Elementary School 54 Great Neck All Saints Episcopal Church 55 Green Run Green Run Elementary School 56 Haygood Haygood United Methodist Church 57 Hillcrest Victory Baptist Church 58 Holland Holland Elementary School 59 Homestead Providence Presbyterian Church 60 Hunt Princess Anne Recreation Center 61 Indian Lakes Indian Lakes Elementary School 62 Kings Grant St. Nicholas Catholic Church 63 Kingston King's Grant Presbyterian Church 64 Lake Christopher New Convenant Presbyterian Church 65 Lake Joyce Morning Star Baptist Church 66 Lake Smith Bayside Church of Christ 67 Landstown Landstown Community Church 68 Larkspur St. Andrews United Methodist Church 69 Lexington Kempsville GhUFGh of 70 Larkspur Middle School 71 Linkhorn Virginia Beach Community Chapel 72 Little Neck Lynnhaven United Methodist Church 73 London Bridge London Bridge Baptist Church 74 Lynnhaven First Landing Fire Station 75 Magic Hollow Virginia Beach Moose Family Center 76 Malibu Malibu Elementary School 77 Manor Providence Elementary School 78 Mt. Trashmore Windsor Woods Elementary School 79 Newtown Good Samaritan Episcopal Church 80 North Beach Galilee Episcopal Church 81 North Landing Hope Haven 82 Ocean Lakes Ocean Lakes Elementary School 83 Ocean Park Bayside Community Recreation Center 84 Oceana Scott Memorial United Methodist Church 85 Old Donation Old Donation Center for Gifted 86 Pembroke Pembroke Elementary School 87 Pinewood Lynnhaven Presbyterian Church 88 Plaza Lynnhaven Elementary School 89 Pleasant Hall Kempsville Baptist Church Pleasant Hall Annex 90 Point O'View Kempsville Church of Christ 91 Red Wing Fraternal Order of Police, Lodge #8 92 Rock Lake Salem Elementary School 93 Rosemont Forest Rosemont Forest Elementary School 94 Roundhill 95 Rudee 96 Timberlake 97 Seatack 98 Shannon 99 Shelburne 100 Shell 101 Shelton Park 102 Sherry Park 103 Sigma 104 South Beach 105 Stratford Chase 106 Strawbridge 107 Tallwood 108 Thalia 109 Thoroughgood 110 Timberlake 111 Trantwood 112 Upton 113 Village 114 Windsor Oaks 115 Witchduck 116 Wolfsnare 117 Central Absentee Voter 118 Precinct 119 Satellite Absentee Voter 120 Precincts (only for November 121 Elections and Presidential 122 Primaries) Salem High School Virginia Beach Volunteer Rescue Building Mount Olive Baptist Church Church of the Ascension Christopher Farms Elementary School Unity Church of Tidewater Shelton Park Elementary St. Matthews Catholic Church Red Mill Elementary School Contemporary Art Center of Virginia Community United Methodist Church Strawbridge Elementary School Tallwood Elementary School Thalia Elementary School Independence Middle School White Oaks Elementary School Virginia Beach Christian Church Three Oaks Elementary School Thalia Lynn Baptist Church Windsor Oaks Elementary School Bayside Presbyterian Church Virginia Beach Christian Life Center Agriculture/Voter Registrar Building Squad Courthouse Fire Station, Department of Motor Vehicles Office—Donna Drive, Department of Motor Vehicles Office—Buckner Boulevard Adopted by the City Council of the City of Virginia Beach, Virginia, on this day of 12012. APPROVED AS TO CONTENT: �_ _' �ACLJ cr^— Voter egi rar CA1221 R-1 March 2, 2012 APPROVED AS TO LEGAL SUFFICIENCY: J Cit tt ey's Office H BROAD ST IC 2H Sr _ - VOTU Ai N 'Ty.'^"'�c'• CUL BUS SILYl f �w t'J� POTOMAC 5 .�^ .. .., -CN- " LDyy.us 5T CT r R "IMG ON ' LEXINGTON PRECINCT Pao WL' coLuneus _ MAN GAM RU Cx "'NaDR P NT m P, SEG°°�` ,1FF SStE PIER 4t a°UT ' POLLING LOCATION CHANGE `��- CONFSTOGA RD INOI qP A- NG -E F = o SUE T/LLNAN OR � a �!,},q (; .� O d ¢, ? � c Cunn�F•- . 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QR'O\ GLLLiN,G L FNC Cf Z�F'L RP EYGgy E RO ION TCT ILDCA • FROM: Kempsville Church of God nGF EN 6E LFRRR o q Tp•N 4422 Princess Anne Road 81 /S Y SDF s"Q q EALA o-1 MF'r A � � SET l� 'D £ w 0.R APPLE ,� .IALWOQr� .G' kY v 4 CQ' C%G�. 4 W1riDf P Zq c B!8 CT •f' EYc F1, I� S. ri F� SITP CHAND Lf P, BLOSSpqt~„ o Ci cY �C t `4: CH � � ,_.. O - tY 4 ti A� C, R•B o RO V- ('•!O NN(!.. IJ`55 C1 '�S .y'c H p° CIfE Bf 9 W ¢`oQ F RDBJ' C\C �: Z4 pO O � 4 D 9 P'^ C g i B04�PA `k' O V oIx/OR BF VWO FbF S s �N F C (WP1G ITk FRRE LL - AD nE 80 E:Y Ci CkF SCEXT POINTE t q V OC 'AO ,�, WG00 RSL ` CHA GNA ONARF Kb n '� Hq LOAG V HW PN f.Rl`h �,(• Dk ,: 0 NFf LEO f 111 LO. HAI �f CJO OF a CJ yq COH R\`f - _.o. au• >,..&'n .A ""' f O 14(NRO .� �.�is' ryoA�yAA aE� `1yY0 x Fi F .Nar' Al OCN c �. E j RATER L2 0 45 C NG ROI FAL Y. 1" 4`N?SP .l' s _ 1 CI F AAL mD AON�> PL �N CJ TNTRfE � vRD ,T+.f WELLF51{y'•�L BEC TRIM SAN 7 X694 !/0 NEWPO Tpp C9TH,TRE o _N o��' AlL9 C7 FWPIO Z! g 'v DR, NAREtlNF Pn•£ •,. CS Y&L, `" l 1•WVNU CR ISTj� CT b0 YWO/ .' ROr \•N� w; " ! lz L �,G pl. A7P, FpX !FF yNAM �T C V CO RSVEPs D G P 1 3' MAPA C - LA WlLBP z 'n 45 SON OM0. T rry� jiy, EC[T[T'TECT "'C iR Tq` 6" �. LAMY OR. w /'�(G.ENY' f4G N6- - U T OC ilk■ �'r BO '`LN oZ Z 6-CRApY E{YppILL q9E Ng1f�r.(FlN "T `t a 7'POPi17` F q/ O k s dBYU ��4 COV NGTO CHATE N CT ,q. c V"p DR ?C >. _ c 52 :``,¢ N ,ww V 5 ..A%A%0A NAS5ANU CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Amend Section 5-531 of the City Code Pertaining to Keeping Dogs Under Restraint; Leash Law MEETING DATE: March 13, 2012 ■ Background: The City currently requires dogs to be on a leash while on any public street, sidewalk or right-of-way. There is no such requirement for dogs in City parks. It has been a long-standing policy in the City's parks to require dogs to be on leashes, however, the policy is unenforceable. When complaints are received, Animal Control officers or Police officers need enforcement authority. This is a particular problem in the many unstaffed parks throughout the City. This item was deferred on February 28, 2012. ■ Considerations: This amendment will require dogs to be on a leash while on city park property, and clarifies the requirement is applicable to owners and custodians of the dogs. ■ Public Information: Public information will be handled through the normal agenda process. ■ Recommendations: Approval ■ Attachments: Ordinance Recommended Action: Approval' Submitting Department/Agency: Police City Managertzz: " IL , �wt 1 AN ORDINANCE TO AMEND SECTION 5-531 2 OF THE CITY CODE PERTAINING TO 3 KEEPING DOGS UNDER RESTRAINT 4 5 SECTION AMENDED: § 5-531 6 7 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 8 BEACH, VIRGINIA: 9 10 That Section 5-531 of the Code of the City of Virginia Beach, Virginia, is hereby 11 amended and reordained to read as follows: 12 Sec. 5-531. - Keeping dogs under restraint; leash law. 13 (a) It shall be unlawful for the owner or custodian of any dog to permit the 14 dog to go upon any city park, public street, sidewalk or right-of-way, excluding the public 15 beaches of the city, unless it is kept secured by a leash or lead or other means of 16 restraint not harmful or injurious to the dog and under the control of a responsible 17 person capable of physically restraining the dog. 18 (b) Any person who does not restrain his dog, in accordance with this 19 section, whether such person be the owner or custodian of such dog, shall be guilty of a 20 class 4 misdemeanor. The animal control officer or police officer may issue a summons 21 to any person he finds in violation of this section. 22 (c) For the purpose of this section "city park" means any city -owned and 23 operated property open to the public for general recreational use including, but not 24 limited to traditional park areas canoe and kayak launch areas and the disabled 25 children's beach playground known as Grommet Park. 26 (ed) Exceptions. 27 (1) This section shall not apply to any person who uses a dog under his direct 28 supervision while lawfully hunting, while engaged in a supervised formal 29 obedience training class or show, or during formally sanctioned field trials. 30 (2) This section shall not apply to any person south of the trace line beginning 31 at the intersection of Elbow Road and the Chesapeake -Virginia Beach City 32 boundary line; thence northeastwardly along Elbow Road to Salem Road; thence 33 southeastwardly along Salem Road to North Landstown Road; thence 34 northeastwardly along Landstown Road to Princess Anne Road; thence 35 southeastwardly along Princess Anne Road to Sandbridge Road; thence 36 eastwardly along Sandbridge Road to its intersection with the Atlantic Ocean; 37 with the excEaption of the subdivisions of Bellwood Estates, Foxfire and Three 38 Oaks and the communities of Sandbridge and Lag O Mar, and any other areas 39 zoned for residential use. 40 (3) This section shall not apply to any fenced area within a city park 41 designated and posted as a dog park. Adopted by the City Council of the City of Virginia Beach, Virginia, on this day of 12012. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: C olice D6partment City At ey's O ce CA12128 R-3 February 16, 2012 .�o° CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Amend the City Code by Amending Sections 27-21, 27-22 and 27-25 Pertaining to the Disposal of Unclaimed Property MEETING DATE: March 13, 2012 ■ Background: The Police Department frequently receives property owned by others. Such property includes stolen property, lost property turned over to the department by the finder of the property, and property in the possession of persons who are arrested. Extensive efforts are made to return the property to its rightful owner prior to a lawful auction, but property with little or no resale value cannot be successfully auctioned. The City Code currently only provides for the disposal of unclaimed property in the possession of the department by public auction or by returning the property to the finder who turned over lost property into the department. The department has become inundated with property that is unsuitable for resale, but the City Code currently does not authorize the department to discard such property. ■ Considerations: This ordinance would authorize the Police Department to destroy or otherwise dispose of property that has not been claimed after ninety (90) days when that property is unsuitable for resale. In cases where police are left to store property in the possession of arrested persons, those persons will be provided written notice that they or a designated third party must pick up the property within ninety (90) days or that property will be subject to public auction or other disposal. The arrested person will also be sent a letter via first class mail to the address provided at the time of arrest when the holding period nears an end. This ordinance is similar to the direction provided by state law to the State Treasurer and Administrator with respect to the destruction or disposal of property that has insubstantial commercial value however the state only requires a sixty (60) day holding period were this ordinance requires a ninety (90) day holding period prior to destruction. These amendments define property of "insubstantial commercial value" as items that are unsuitable for resale, or items with a value less than the cost of giving notice and holding a sale, and the amendments will allow the Police Department to destroy or discard such items rather than storing them indefinitely. These amendments also incorporate the state code authorization for the department to retain items that have a legitimate law enforcement use. ■ Public Information: Public information will be handled through the normal agenda process. ■ Attachments: Ordinance. Recommended Action: Approval Submitting Department/Agency: Police Department^� City Manager� �� 1 AN ORDINANCE TO AMEND SECTIONS 27- 2 21, 27-22 AND 27-25 OF THE CITY CODE 3 PERTAINING TO DISPOSAL OF UNCLAIMED 4 PROPERTY 5 6 SECTIONS AMENDED: § 27-21, 27-22 and 7 27-25 8 9 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 10 BEACH, VIRGINIA: 11 12 That Sections 27-21, 27-22 and 27-25 of the Code of the City of Virginia Beach, 13 Virginia, are hereby amended and reordained to read as follows: 14 Sec. 27-21. - Disposal of unclaimed property in possession of police. 15 (a) Any unclaimed personal property which has been in the possession of the 16 department of police and remains unclaimed for a period of more than sixty (60) days 17 may be sold at public auction or retained for use by the Police Department in 18 accordance with the provisions of this article. As used herein, "unclaimed personal 19 property" shall be any personal property belonging to another which has been acquired 20 by a law enforcement officer pursuant to his duties, which is not needed in any criminal 21 prosecution, which has not been claimed by its rightful owner and which the state 22 treasurer has indicated will be declined if remitted under the Uniform Disposition of 23 Unclaimed Property Act of the Code of Virginia. 24 (b) Notwithstanding the provisions of subsection (a) above, bicycles and 25 lost/found property may be disposed of in accordance with sections 27-24 and 27-25. 26 (c) Any unclaimed personal property, as described in subsection (a) above, 27 that has insubstantial commercial value may be destroyed or otherwise disposed of 28 after it remains unclaimed for a period of more than ninety (90) days. For the purpose 29 of this subsection "insubstantial commercial value" includes items that are unsuitable for 30 resale or items deemed to have a value less than the cost of giving notice and holding 31 a sale. 32 Sec. 27-22. - Requirements prior to sale or retention by Police Department. 33 (a) Prior to the sale or retention by Police Department of any unclaimed item 34 the chief of police or his duly authorized agent shall make reasonable attempts to notify 35 the rightful owner of the property, obtain from the commonwealth's attorney in writing a 36 statement advising that the item is not needed in any criminal prosecution, and cause to 37 be published in a newspaper of general circulation in the locality once a week for two (2) 38 successive weeks, notice that there will be a public sale of unclaimed personal property. 39 Such property shall be described generally in the notice, together with the date, time 40 and place of the sale. The chief of police, or his duly authorized agent, shall pay from 41 the proceeds of the sale the cost of advertisement, removal, storage and investigation 42 as to ownership and liens, and notice of sale. The balance of the funds shall be held by 43 such officer for the owner and paid to the owner upon satisfactory proof of ownership. 44 (b) Any unclaimed item retained for use by the Police Department shall 45 become the property of the City and shall be retained only if, in the opinion of the chief 46 of police or his designee there is a legitimate use for the property by the department 47 and retention of the item is a more economical alternative than purchase of a similar or 48 eauivalent item. 49 Sec. 27-23. - Disposition of funds from sale. 50 If no claim has been made by the owner for the proceeds of such sale within sixty 51 (60) days of the sale, the remaining funds shall be deposited in the general fund of the 52 city. Any such owner shall be entitled to apply to the city within three (3) years from the 53 date of the sale and, if timely application is made therefor, the city shall pay the 54 remaining proceeds of the sale to the owner without interest or other charges. No claim 55 shall be made nor any suit, action or proceeding be instituted for the recovery of such 56 funds after three (3) years from the date of the sale. 57 Sec. 27-24. - Disposal of bicycles and other wheeled devices or vehicles. 58 Any bicycle, electric personal assistive mobility device, electric power -assisted 59 bicycle, electric -powered wheeled device, gas -powered wheeled device, golf cart, 60 surrey or moped which has been in the possession of the department of police, 61 unclaimed, for more than thirty (30) days may be sold at public auction or donated to a 62 charitable organization. If such wheeled device or vehicle is sold at public auction, the 63 provisions of sections 27-22 and 27-23 shall apply. If such wheeled device or vehicle is 64 donated to a charitable organization, the notice provisions of section 27-22 shall apply. 65 Sec. 27-25. - Disposal of lost/found property. 66 Any person who initially found and turned over to the department of police, 67 property which otherwise remains unclaimed for a period of sixty (60) days (thirty (30) 68 days for bicycles and other wheeled devices and vehicles as set forth in section 27-24), 69 may make claim for the return of such property, prior to its sale, to the chief of police or 70 his duly authorized agent. The chief of police or his duly authorized agent may elect to 71 return such property to the finder making such claim or proceed under the provisions of 72 sections 27-21 or 27-24. Strict records of each such disposal shall be kept. if the ffinder 73 dees not make Glairn for the return of the propeFty, the propeFty may be sold at publiG 74 allGtffigR in nnGrrl nne w0th the M nrnviei�nc• in sentiens 27.22 anti 27 23 Adopted by the City Council of the City of Virginia Beach, Virginia, on this day of 12012. APPROVED AS TO CONTENT: Police Department CA12127 R-5 February 29, 2012 APPROVED AS TO LEGAL SUFFICIENCY: - ON —c 0 CITY OF VIRGINIA BEACH AGENDA ITEM ITEMS: 1. An Ordinance to Amend and Reordain the Code of the City of Virginia Beach, by adding Chapter 35.4, "Tourism Zones" and to Create the Resort Tourism Zone 2. A Resolution Adopting a City Council Policy for Consideration of Tourism Projects for the Tourism Project Financing Program MEETING DATE: March 13, 2012 ■ Background: The City Council adopted the Resort Area Strategic Action Plan ("RASAP") in December 2008. This plan included various projects the City believed would enhance the Resort Area and stimulate tourism. The General Assembly has provided an additional tool for the encouragement of tourism projects, such as the priorities established in the RASAP. Section 58.1-3851.1 of the Virginia Code provides a mechanism for providing funding streams for tourism projects that meet a void in a locally adopted plan, such as the RASAP. This development tool provides a mechanism to use a portion of the sales and other taxes generated on the premises (1 cent of the state sales tax with an equal contribution in local taxes and an equally sized "access fee") to pay for the project. For a qualifying tourism project, the funding streams must be directed to support the project's need for "gap financing," as that term is defined by statute. This gap financing is not City or State debt. Any debt belongs to the project and the developer. In order for the City to be eligible to participate in the incentive provided by § 58.1-3851 of the Virginia Code, the City must have established a tourism zone. Section 58.1-3851 of the Code of Virginia authorizes localities to establish tourism zones. A tourism zone is a portion of the City where the City Council desires to promote tourism related businesses. The establishment of one or more zones allows the City to provide various financial incentives including the reduction of user fees, the reduction of permit fees, and the reduction of business license taxes. Once established, the City Council may enact future ordinances if it desires to establish more than one tourism zone. Currently, the City has one similar type of incentive zone. In March 2006, the Council established the APZ-1 Technology/Business Opportunity Zone. This Zone was created to encourage the establishment and growth of businesses that are compatible with aircraft operations at Naval Air Station Oceana and other uses in the APZ-1. ■ Considerations: This agenda item has two parts. First, there is an ordinance to establish a tourism zone, the Resort Tourism Zone. Second, there is a resolution to adopt procedures for the consideration of tourism projects. The tourism zone ordinance has two articles. Article I provides the general rules and definitions applicable to the establishment of tourism zones in the City. Article Il provides the establishment of the City's first tourism zone, the Resort Tourism Zone. The general rules applicable to tourism zones are provided in Article I including: • A statement of the intent of the City to encourage capital investment and employment opportunities; • The administration of a tourism zone; and • The process for establishing a tourism zone including the boundaries and the incentives. The establishment of the Resort Tourism Zone in Article II provides the physical location of the zone. No incentives are provided for this Tourism Zone at this time because this Zone is established to allow the City to pursue the tourism project financing program provided in § 58.1-3851.1 of the Virginia Code. The resolution provides for adoption of a Council Policy containing procedures for the consideration of tourism projects. This policy will allow staff to evaluate projects before such projects are brought to City Council for approval. The City Council approval of such projects is required before any project is forwarded to the Virginia Tourism Authority and the State Comptroller for review and approval. Upon completion of the state and local approvals, the developer of the project would enter into a performance agreement with the Virginia Beach Development Authority. The performance agreement serves three functions. First, the performance agreement requires the project developer to impose an "access fee" that will provide a portion of revenues from the project to be directed toward the "gap financing." Second, the performance agreement sets forth the development requirements for the project. Third, the performance agreement provides the mechanism for the State, local, and "access fee" revenue streams to be directed to pay the "gap financing." ■ Public Information: Public information will be provided by the normal Council agenda process. City Council was briefed on this item at its February 7th Council workshop. Additionally, a hearing was held at the February 28th Council Formal Session to seek public input. ■ Attachments: Tourism Zone Ordinance (with attached map of the proposed Tourism Zone); Resolution to Adopt City Council Policy (with attached City Council Policy) Recommended Action: Approval Submitting Department/Agency: Strategic Growth Area/Economic Developm n City Manager: �, 1 AN ORDINANCE TO AMEND AND REORDAIN 2 THE CODE OF THE CITY OF VIRGINIA BEACH, 3 VIRGINIA, BY ADDING CHAPTER 35.4, 4 "TOURISM ZONES" AND TO CREATE THE 5 RESORT TOURISM ZONE 6 7 SECTIONS ADDED: 35.4-1; 35.4-2; 35.4-3; 35.4- 8 4; 35.4-5; 35.4-10; 35.4-11 9 10 WHEREAS, Code of Virginia (1950), as amended, § 58.1-3851 authorizes 11 localities to establish one or more tourism zones; and 12 13 WHEREAS, the City Council desires to promote tourism related business; and 14 15 WHEREAS, the City Council has determined that it would be advantageous and 16 appropriate to establish a Tourism Zone within the City to encourage capital investment 17 and the creation of jobs; and 18 19 WHEREAS, on December 2, 2008, the City Council amended the City 20 Comprehensive Plan to incorporate the Resort Area Strategic Action Plan; and 21 22 WHEREAS, the City Council of the City of Virginia Beach believes that 23 establishing the Resort Area Tourism Zone is in the best interest of the public and is a 24 reasonable exercise of the City's authority to promote general welfare, including 25 commerce and industry of the City and the inhabitants thereof; 26 27 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 28 VIRGINIA BEACH, VIRGINIA: 29 30 That in furtherance of the above -stated desire and intent of the City Council, the 31 Code of the City of Virginia Beach, Virginia is hereby amended and reordained by 32 adding thereto a new Chapter 35.4 to read as follows: 33 34 CHAPTER 35.4 TOURISM ZONES 35 36 ARTICLE I. IN GENERAL 37 38 Section 35.4-1. Purpose and intent. 39 40 The city council of the City of Virginia Beach finds that the development of its 41 tourism related tax base requires the establishment of tourism zones as -guided and 42 authorized by section 58.1-3851 of the Code of Virginia. The city council finds that the 43 establishment of tourism zones will foster the development of tourism related 44 businesses which will increase capital investment and create mobs. 1 45 46 Section 35.4-2. Administration. 47 48 This article shall be administered and enforced by the city manager or his 49 designee Any application required by this chapter shall be on forms approved by the 50 city manager or his designee. 51 52 Section 35.4-3. Burden. 53 54 Any business applying for the benefits afforded by this Chapter shall have the burden of 55 proving qualification. 56 57 Section 35.4-4. Boundaries of tourism zones. 58 59 The tourism zones shall be established by city council by ordinance upon 60 findings that the incentives provided therein will enhance the establishment and growth 61 of tourism related businesses within the area under consideration. As tourism zones 62 are established by city council they shall be further identified by reference to the map 63 entitled "Virginia Beach Tourism Zones" which shall be incorporated into and made a 64 part of this chapter and all future ordinances establishing a tourism zone. 65 66 Section 35.3-5. Incentives. 67 68 (a) Any ordinance establishing a tourism zone may provide incentives authorized 69 by section 581-3851 of the Code of Virginia and qualification for such 70 incentives by tourism businesses Any incentive provided within a tourism 71 zone shall be for a period not to exceed 10 years from the date of application. 72 (b) The entitlement to any incentive authorized by this chapter shall be 73 conditioned upon the applicant paying any tax imposed by the City including 74 but not limited to business license taxes business personal property, meals, 75 transient occupancy and admissions taxes by the date upon which the tax is 76 due In the event a business is 30 or more days delinquent on any local tax, 77 such business forfeits any entitlement to any incentive authorized by this 78 chapter. 79 80 ARTICLE II. RESORT AREA TOURISM ZONE 81 82 Section 35.4-10. Intent; findings. 83 84 (a) It is the intent of the city council in establishing the Resort Area Tourism Zone 85 to: 86 1. Facilitate the establishment and growth of businesses that increase capital 87 investment and create lobs; and 88 89 90 91 92 93 94 95 96 97 98 99 100 2. Increase the inventory of tourism related businesses, with the goal of extending the length of stay of visitors to the City. (b) The city council finds that: 1. The establishment of a tourism zone in the Resort Area will foster the development of business and benefit the public health safety, welfare and convenience through the enhancement of public revenues and the creation of employment opportunities. Section 35.4-11. Establishment of the Resort Area Tourism Zone. The Resort Area Tourism Zone is hereby established. The zone shall consist of the area described in detail by the map attached to this ordinance. Adopted by the Council of the City of Virginia Beach, Virginia on the day of , 2012. APPROVED AS TO CONTENT: APPROVED AS TO CONTENT: bra - ..y - Economic Development APPROVED AS TO LEGAL SUFFICIENCY: CA11796 R-3 February 28, 2012 GI TY OF VIRGINIA BEACH RESORT TOURISM ZONE MAP February 28, 2012 ,=Tourism Zone Property Lines Scale: 1"=1200' 0 600 1,200 2,400 Feet 1 A RESOLUTION ADOPTING A CITY COUNCIL 2 POLICY PROVIDING EVALUATION 3 GUIDELINES FOR THE TOURISM PROJECT 4 GAP FINANCING PROGRAM 5 6 WHEREAS, the City of Virginia Beach faces demands to provide new services to 7 its population and visitors that cannot be met through its existing tax base; and 8 9 WHEREAS, tourism is a vital component of the City's existing tax base; and 10 11 WHEREAS, the City should encourage private sector investment in tourism 12 projects that increase tourist length -of -stay and enjoyment of time spent in the City; and 13 14 WHEREAS, the General Assembly has provided a mechanism whereby private 15 investment in tourism projects that require "gap financing" may qualify for specific 16 sources of funding; and 17 18 WHEREAS, for purposes of such a program, the General Assembly has defined 19 the term "gap financing" to mean "debt financing to compensate for a shortfall in project 20 funding between the expected development costs of an authorized tourism project and 21 the debt and equity capital provided by the developer of the project" (Va. Code § 58.1- 22 3851.1); and 23 24 WHEREAS, the mechanism for payment of "gap financing" requires equal 25 contributions from the State, the City, and the qualifying tourism project in an amount 26 that equals one penny of the state sales and use tax; and 27 28 WHEREAS, the City Council desires to adopt a policy for the evaluation of 29 potential tourism projects to determine whether a project meets the criteria for the "gap 30 financing" assistance provided by the General Assembly and the priorities of the City for 31 the Resort Area as set forth in the Resort Area Strategic Action Plan; and 32 33 WHEREAS, when evaluating potential tourism projects, it is prudent for the City 34 to follow guidelines designed to ensure that any qualifying tourism project is in the best 35 interest of the City. 36 37 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY 38 OF VIRGINIA BEACH, VIRIGNIA: 39 40 1. That City Council hereby adopts the policy "Guidelines for Evaluation of 41 Tourism Projects," a copy of which is attached hereto as Exhibit A; and 42 43 2. That the City Manager and staff are hereby directed to use the process 44 outlined in the City Council Policy in the evaluation of a tourism project seeking to utilize 45 the "gap financing" program described in Virginia Code § 58.1-3851.1. Adopted by the Council of the City of Virginia Beach, Virginia on the of 12012. APPROVED AS TO CONTENT: APPROVED AS TO CONTENT: egi Economic Development APPROVED AS TO LEGAL SUFFICIENCY: -E A s ffice CA12107 R-1 February 1, 2012 day - d �3 City Council Policy Title: Guidelines for the Tourism Project Gap Financing Program Index Number: Date of Adoption: Date of Revision: Page 1 of 6 1.0 Purpose and Need To transform the Virginia Beach Resort from a seasonal venue to a year- round destination, private development will be necessary; however, some potential tourism projects have experienced difficulty obtaining the financing necessary to make the projects a reality. A means for bridging the financing gap was established by the General Assembly, codified as § 58.1-3851.1 of the Virginia Code. This program provides additional funding — in the form of cash flows — once projects are operational that may be directed to closing a financing gap between the debt and equity a developer currently has and the total financing required by a tourism project. This program may generally be referred to as "Tourism Project Gap Financing Program" or, as hereinafter referred to as, the "Program." 2.0 Policy Statement The purpose of this policy is: a) To provide guidance to City staff for the evaluation of proposed tourism projects that seek to utilize the Program; b) To signal to the development community the types of tourism projects that would be eligible for the Program and the various steps required for final approval; and c) To inform the broader community of the public purpose advanced by the Program. Title: Adoption Guidelines for the Tourism Development Financing Program Index Number: Date of Adoption: I Date of Revision: Page 2 of 6 3.0 Definitions 3.1 Gap Financing — debt financing to compensate for a shortfall in project funding between the expected development costs of an authorized tourism project and the debt and equity capital provided by the developer of the project. Gap financing shall not exceed 20% of the total debt and equity required for a tourism project. 3.2 Performance Agreement — an agreement between the developer and development authority. The Performance Agreement shall affirmatively state that the Agreement does not create debt of the State or the City. The agreement has three functions. First, the Performance Agreement requires the developer to impose an "access fee" in the amount of 1% of all transactions occurring on the project premises. Second, the Performance Agreement establishes minimum performance requirements for the tourism project including capital investment, new jobs, or other measureable criteria. Third, the Performance Agreement sets forth the payment of the revenue streams in the amounts and for the purposes provided by § 58.1-3851.1 of the Virginia Code. 3.3 Tourism Development Financing Program — a program provided by the General Assembly allowing state tax, local tax, and private developer "access fee" revenue streams to be directed to gap financing. This Program does not allow the creation of new state or local debt either through debt issuance or loan guarantee(s). 3.4 Tourism Marketing Plan — a strategic plan adopted by the City Council and required by Virginia Tourism Authority, which describes the City's action plan for tourism related development. 3.5 Tourism Zone — a zone designated by the City Council to encourage tourism related economic activities as provided by § 58.1-3851 of the Virginia Code. 3.6 Qualifying Tourism Project — a project that fills a void identified by the Tourism Development Plan, is located in the Tourism Zone, meets the approval of City staff based on the evaluation factors identified in this policy, has been endorsed, by ordinance by the City Council, has been approved by the Virginia Tourism Authority, and has been certified by the State Comptroller as qualifying for the entitlement to tax revenues authorized by § 58.1-3851.1 of the Virginia Code. Title: Adoption Guidelines for the Tourism Development Financing Program Index Number: Date of Adoption: Date of Revision: Page 3 of 6 4.0 How the Program Works 4.1 Debt Responsibility. The Program does not create State or City Debt. 4.2 Revenue Flows. The amount of revenue is keyed to one cent of the sales and use taxes generated on the tourism project premises. This amount is provided from the Tax Commissioner on a quarterly basis. The amount of the local tax portion and the "access fee" are equal to the amount provided by the Tax Commissioner. After the completion of all steps set forth herein, the flow of revenues is as follows: a) State Sales Taxes (certified by the Tax Commissioner) --> State Comptroller remits these revenues to the City 4 City remits to the Development Authority 4 Development Authority, pursuant to the Performance Agreement, pays to the Gap Financing. b) Local Taxes (in an amount equal to the amount certified by the Tax Commissioner) 4 City remits to the Development Authority 4 Development Authority, pursuant to the Performance Agreement, pays to the Gap Financing. c) "Access Fee" (imposed by project developer and memorialized in the Performance Agreement; in an amount equal to the amount certified by the Tax Commissioner) --> Developer remits to the City 4 City remits to the Development Authority --> Development Authority, pursuant to the Performance Agreement, pays to the Gap Financing. 4.3 Prerequisites. Section 58.1-3851.1 of the Virginia Code requires the following prerequisites: a) The City Council has to adopt a Tourism Marketing Plan. The Tourism Marketing Plan provides a description of the types of tourism projects the City desires as a matter of strategic priority. A Qualifying Tourism Project must fill a void identified by the Tourism Marketing Plan. b) The City Council had to adopt a Tourism Zone. A Qualifying Tourism Project must be located in the Tourism Zone. c) To qualify for the Program, the project developer must demonstrate a shortfall in project funding between the expected development costs of the proposed tourism project and the debt and equity capital provided by the developer of the project. Title: Adoption Guidelines for the Tourism Development Financing Program Index Number: Date of Adoption: Date of Revision: Page 4 of 6 This shortfall may not exceed 20% of the total project costs. Proof of such shortfall must be demonstrated in writing by a financial institution and meet the satisfaction of the City's Director of Finance. If this writing contains confidential information, it should be so marked for purposes of the Freedom of Information Act. 5.0 Process 5.1 Application - Developers seeking to utilize the Program shall submit an application to the City of Virginia Beach Strategic Growth Area Office. • The application will include project description, conceptual design, geographic parcel identification number (GPIN), anticipated economic impact, potential spin-off business synergy, effect upon tourism, competitive venues, risk factors, any Virginia Tourism Authority fees, as applicable, and potential remedies for risk. • The application must meet the three requirements set forth in subsection 4.3, supra. 5.2 Evaluation - Each application will be reviewed by a staff review committee. The review will determine whether the project: a) Has a minimum capital investment of $30 million; b) Will provide taxable sales in the amount of at least $ 1 million per year; c) Will increase year-round employment; d) Fills a void in the Tourism Marketing Plan; e) Is located in the Tourism Zone; f) The proof of the need for Gap Financing meets the approval of the City's Director of Finance; g) Does not require a prohibitive amount of City investment, including roadways, parking, and other infrastructure. 5.3 Briefing — After City staff have reviewed the application, a representative from the Strategic Growth Area Office or other related office will provide a briefing to the City Council. At this briefing, the Staff will require informal direction as to whether there is preliminary support for the proposed tourism project. If there is support by the City Council, Staff will provide a similar briefing to the Development Authority. Title: Adoption Guidelines for the Tourism Development Financing Program Index Number: Date of Adoption: Date of Revision: Page 5 of 6 5.4 Development of a Performance Agreement — After preliminary approval by the City Council and the Development Authority, Staff and the tourism project developer will begin work on a Performance Agreement. The Performance Agreement will do the three functions described in Section 3.2, supra. Final execution of the Performance Agreement will be conditioned upon the project receiving approval by the Virginia Tourism Authority and certification by the State Comptroller as qualifying for the entitlement to tax revenues authorized by § 58.1-3851.1 of the Virginia Code. 5.5 Project Endorsement Ordinance — Prior to the completion of the Performance Agreement, City Staff will present an ordinance to the City Council. The ordinance will provide for the endorsement of the proposed tourism project by the Council and the willingness, subject to approval by the State and execution of the Performance Agreement, of the City to allow the project to receive an amount of local tax revenues equal to one cent of the Virginia Sales and Use Tax for all transactions occurring on the project premises. 5.6 Project Submission to the Virginia Tourism Authority — After the Council approval of the ordinance endorsing the proposed tourism project, the City will forward the application and ordinance(s) to the Virginia Tourism Authority and to the State Comptroller, as required. 5.7 Execution of Performance Agreement by Project Developer — After the project has been approved by the Virginia Tourism Authority and the State Comptroller, the Performance Agreement, in final form, will be provided to the project developer for execution. 5.8 Development Authority Approval — After approvals at the state level and execution by the project developer, the Development Authority will be presented with a resolution to approve the Performance Agreement in final form. 5.9 Final Approval - If this resolution is approved by the Development Authority, the Chair of the Development Authority will execute the Performance Agreement. Title: Adoption Guidelines for the Tourism Development Financing Program Index Number: Date of Adoption: Date of Revision: Page 6 of 6 Approved as to Content: Approved as to Content: Financial Impact: Approved as to Legal Sufficiency: Reviewed by: APPROVED BY CITY COUNCIL: Strategic Growth Area Office Date Director Economic Development Date Department Director Finance Director City Attorney City Manager Mayor Date Date Date Date 7� CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Resolution of the City of Virginia Beach, Virginia, Providing for the Issuance and Sale of General Obligation Public Improvement Bonds, Heretofore Authorized, in the Maximum Amount of $72,000,000, and General Obligation Public Improvement Refunding Bonds in the Maximum Principal Amount of $60,000,000 to Refund Previously Authorized and Issued Bonds, and Providing for the Form, Details and Payment Thereof MEETING DATE: March 13, 2012 ■ Background: Based on a review of capital project expenditures, the Department of Finance has begun preparations for a general obligation new money bond sale in the maximum amount up to $72,000,000. The bond sale is composed of portions of the FY2011 and FY2012 Charter Bond Authorizations previously approved by Council on May 11, 2010 and May 10, 2011, respectively. The bond proceeds from this issuance and sale will reimburse previously authorized expenditures for CIP projects. Based on current market conditions, the City's Financial Advisor, Public Resources Advisory Group ("PRAG"), have recommended that this sale take place on April 4, 2012. In addition to the new money sale, the Department of Finance and the City's Financial Advisor recommend that the City issue refunding bonds to save on the costs of future debt service. For the bonds that are candidates for refunding, favorable market conditions allow the City to redeem these bonds and issue refunding bonds at a significant debt service savings. ■ Considerations: The new money sale represents the City's annual general obligation bond sale. The City's Bond Counsel has prepared the enclosed resolution authorizing the issuance and sale of the bonds. The bonds will be sold electronically by competitive bid, with the actions of the City Manager being conclusive; provided however, that the bonds shall have a true interest cost not to exceed 4.0%. For the refunding bonds, there is no issuance of new debt. The City will size the refunding in a manner that will allow the City to save on debt service payments. As with previous refunding sales, the Department of Finance will report to Council savings that result from the refunding. ■ Public Information: Public information will be handled through the normal Council agenda process. The original Charter Bond Authorizations were part of the public information process of the City's Resource Management Plan (Budget/CIP). In addition, the Resolution authorizes the distribution of the Preliminary Official Statement for marketing purposes. Also, a Notice of Sale will be placed in The Bond Buyer, a daily newspaper for the tax-exempt bond market. ■ Alternatives: There are no practical alternative funding sources at this time. This request follows previously approved CIPs. ■ Attachment: Resolution, Project List Recommended Action: Approval Submitting Department/Agency: Finance tL City Manager: "--68v�t IF 1111 [C -A � RESOLUTION OF THE CITY OF VIRGINIA BEACH, VIRGINIA, PROVIDING FOR THE ISSUANCE AND SALE OF GENERAL OBLIGATION PUBLIC IMPROVEMENT BONDS, HERETOFORE AUTHORIZED, IN THE MAXIMUM AMOUNT OF $72,000,000, AND GENERAL OBLIGATION PUBLIC IMPROVEMENT REFUNDING BONDS IN THE MAXIMUM PRINCIPAL AMOUNT OF $60,000,000 TO REFUND PREVIOUSLY AUTHORIZED AND ISSUED BONDS, AND PROVIDING FOR THE FORM, DETAILS AND PAYMENT THEREOF The issuance of $68,180,000 of bonds of the City of Virginia Beach, Virginia (the "City") was authorized by an ordinance adopted by the City Council of the City of Virginia Beach, Virginia (the "City Council") on May 11, 2010, without being submitted to the qualified voters of the City, to finance various public improvements, including schools, roadways, coastal projects, economic and tourism projects, building and parks and recreation projects, $36,418,112 of which have been issued and sold. The issuance of $65,500,000 of bonds of the City was authorized by an ordinance adopted by the City Council on May 10, 2011, without being submitted to the qualified voters of the City, to finance various public improvements, including schools, roadways, coastal projects, economic and tourism projects, building and parks and recreation projects, none of which bonds have been issued and sold. It has been recommended to the City Council by representatives of Public Resources Advisory Group (the "Financial Advisor") that the City issue and sell a series of general obligation public improvement bonds in the maximum principal amount of $72,000,000. The City Council has determined it is in the City's best interest to issue and sell the remaining balance, $31,761,888, of the bonds authorized on May 11, 2010; and up to $40,238,112 of the bonds authorized on May 10, 2011. The City has previously issued its $50,000,000 General Obligation Public Improvement Bonds, Series 2003A (the "Series 2003A Bonds") of which $17,500,000 is outstanding; $65,000,000 General Obligation Public Improvement Bonds, Series 2004A (the "Series 2004A Bonds") of which $19,500,000 is outstanding; and its $80,000,000 General Obligation Public Improvement Bonds, Series 2005 (the "Series 2005 Bonds") of which $40,000,000 is outstanding. It has been recommended to the City Council by the Financial Advisor that the City may achieve certain debt service savings by refunding all or a portion of the Series 2003A Bonds, Series 2004A Bonds and Series 2005 Bonds (collectively, the "Prior Bonds") through the issuance of general obligation public improvement refunding bonds in the maximum aggregate principal amount of $60,000,000. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA: 1. Issuance of Bonds. There shall be issued, pursuant to the Constitution and statutes of the Commonwealth of Virginia, including the City Charter (Chapter 147 of the Acts 4822-0535-5278.2 of the General Assembly of 1962, as amended) and the Public Finance Act of 1991 (Chapter 26, Title 15.2, Code of Virginia of 1950, as amended), general obligation public improvement bonds of the City in the maximum principal amount of $72,000,000 (the "Public Improvement Bonds") and general obligation public improvement refunding bonds of the City in the maximum principal amount of $60,000,000 (the "Refunding Bonds," and collectively with the Public Improvement Bonds, the "Bonds"). The proceeds of the Public Improvement Bonds will be used to provide funds to finance, in part, the costs of various public, school, road and highway, coastal, economic and tourism, building and parks and recreation improvements, as more fully described in the ordinances authorizing the Public Improvement Bonds adopted on May 11, 2010 and May 10, 2011. The proceeds of the Refunding Bonds will be used to refund the Prior Bonds or selected maturities or portions of maturities thereof as herein authorized. Proceeds of the Public Improvement Bonds and Refunding Bonds may also be applied to the costs incurred in connection with issuing such obligations. 2. Bond Details. The Bonds may be issued in one or more series and shall be designated "General Obligation Public Improvement Bonds; provided any Bonds issued as Refunding Bonds shall also contain the word "Refunding" in such designation. The Bonds shall contain the series designation 2012 or the such other designation as may be determined by the City Manager, shall be in registered form, shall be dated such date as may be determined by the City Manager, shall be in denominations of $5,000 and integral multiples thereof and shall be numbered R-1 or RF -1 upward as appropriate. The Bonds if issued as separate series may be issued at the same time or at different times as determined by the City Manager in consultation with the Financial Advisor, and the principal amount of each series of Bonds shall be determined by the City Manager in his discretion in consultation with the Financial Advisor. Subject to Section 9, the issuance and sale of the Bonds are authorized on terms as shall be satisfactory to the City Manager; provided, that the Bonds (a) shall have a "true" or "Canadian" interest cost not to exceed 4.0 % (taking into account any original issue discount or premium), (b) shall be sold to the purchaser thereof at a price not less than par or 100% of the principal amount thereof, (c) shall be subject to optional redemption beginning no later than and continuing after April 1 , 2022, at an optional redemption price of no more than 102% of the principal amount to be redeemed plus accrued interest to the optional redemption date, and (d) shall mature annually in installments through serial maturities or mandatory sinking fund payments beginning no later than April 1, 2013, and ending no later than April 1, 2032. Principal of the Bonds shall be payable annually on dates determined by the City Manager, which principal payment dates need not be the same for each series. Each Bond shall bear interest at such rate as shall be determined at the time of sale, calculated on the basis of a 360 -day year of twelve 30 -day months, and payable semiannually on dates determined by the City Manager. Principal shall be payable to the registered owners upon surrender of Bonds as they become due at the office of the Registrar (as hereinafter defined). Interest shall be payable by check or draft mailed to the registered owners at their addresses as they appear on the registration books kept by the Registrar on a date prior to each interest payment date that shall be determined by the City Manager (the "Record Date"). Principal, premium, if any, and interest shall be payable in lawful money of the United States of America. Initially, one Bond certificate for each maturity of the Bonds shall be issued to and 4822-0535-5278.2 2 registered in the name of The Depository Trust Company, New York, New York ("DTC"), or its nominee. The City has heretofore entered into a Blanket Issuer Letter of Representations relating to a book -entry system to be maintained by DTC with respect to the Bonds. "Securities Depository" shall mean DTC or any other securities depository for the Bonds appointed pursuant to this Section 2. In the event that (a) the Securities Depository determines not to continue to act as the securities depository for the Bonds by giving notice to the Registrar, and the City discharges its responsibilities hereunder, or (b) the City, in its sole discretion, determines (i) that beneficial owners of Bonds shall be able to obtain certificated Bonds or (ii) to select a new Securities Depository, then the City's Director of Finance shall, at the direction of the City, attempt to locate another qualified securities depository to serve as Securities Depository and authenticate and deliver certificated Bonds to the new Securities Depository or its nominee, or authenticate and deliver certificated Bonds to the beneficial owners or to the Securities Depository participants on behalf of beneficial owners substantially in the form provided for in Section 5; provided, that such form shall provide for interest on the Bonds to be payable (A) from the date of the Bonds if they are authenticated prior to the first interest payment date, or (B) from the interest payment date that is or immediately precedes the date on which the Bonds are authenticated (unless payment of interest thereon is in default, in which case interest on such Bonds shall be payable from the date to which interest has been paid). In delivering certificated Bonds, the City's Director of Finance shall be entitled to rely 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 Bonds will then be registrable, transferable and exchangeable as set forth in Section 7. So long as there is a Securities Depository for the Bonds, (1) it or its nominee shall be the registered owner of the Bonds, (2) notwithstanding anything to the contrary in this Resolution, 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, (3) the Registrar and the City 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, (4) references in this Resolution to registered owners of the Bonds shall mean such Securities Depository or its nominee and shall not mean the beneficial owners of the Bonds, and (5) in the event of any inconsistency between the provisions of this Resolution and the provisions of the above -referenced Blanket Issuer Letter of Representations, such provisions of the Blanket Issuer Letter of Representations, except to the extent set forth in this paragraph and the next preceding paragraph, shall control. 3. Refunding Provisions. The City Manager is authorized and directed to select the principal maturities of the Prior Bonds or portions of such maturities to be refunded and to cause to be called for optional redemption any such maturity or portion thereof to be redeemed prior to its stated maturity in accordance with the provisions of such bonds; provided such maturities or portions thereof selected are expected in the aggregate to provide a minimum savings of 3.0% on a net present value basis as determined by the Financial Advisor. In connection with the refunding herein 4822-0535-5278.2 3 authorized, the City Manager, if determined necessary or appropriate in consultation with the Financial Advisor, is authorized to retain the services of independent consultants to provide verification reports (the "Verification Agent") on aspects of the refunding and is further authorized to retain the services of one or more escrow agents (the "Escrow Agent") and to enter into escrow agreements with them to the extent needed to hold and provide for investment of all or portions of the proceeds of the Refunding Bonds and other funds as needed pending their application to refund the Prior Bonds or portions thereof selected to be refunded. 4. Redemption Provisions. (a) Optional Redemption. The Bonds shall be subject to redemption prior to maturity at the option of the City Manager, in whole or in part, at any time on and after dates, if any, determined by the City Manager, with the first such optional redemption date beginning no later than April 1, 2022 as set forth in Section 2 at a redemption price equal to the principal amount to be redeemed, together with any interest accrued to the date fixed for redemption, plus a redemption premium, if any, not to exceed 2% of the principal amount to be redeemed, such redemption premium to be determined by the City Manager. (b) Mandatory Sinking_ Fund Redemption. Any term bonds may be subject to mandatory sinking fund redemption upon terms determined by the City Manager. If so determined by the City Manager, the Bonds may provide that the City may take a credit against the mandatory sinking fund redemption obligation of any maturity of term Bonds in the amount of Bonds of the same maturity that have been optionally redeemed or surrendered for cancellation and have not been applied previously as such a credit. If the City wishes to take such a credit, on or before the 70th day next preceding any such mandatory sinking fund redemption date, the City's Director of Finance may instruct the Registrar to apply a credit against the City's mandatory sinking fund redemption obligation for any Bonds of the applicable maturity that have been optionally redeemed or surrendered for cancellation by the City and have not been previously applied as a credit against any mandatory sinking fund redemption obligation for that maturity of the Bonds. Each Bond so previously optionally redeemed or surrendered shall be credited at 100% of the principal amount thereof against the principal amount of such maturity of the Bonds required to be redeemed on such mandatory sinking fund redemption date or dates for such maturity as may be selected by the Director of Finance. (c) Selection of Bonds for Redemption. If less than all of the Bonds are called for optional redemption, the maturities of 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 a particular maturity of the Bonds are called for redemption, the Bonds within such maturity to be redeemed shall be selected by the 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 In either case, (a) the portion of any Bond to be redeemed shall be in the principal amount of $5,000 or some integral multiple thereof and (b) in selecting Bonds for redemption, each Bond shall be considered as representing that number of Bonds that is obtained by dividing the principal amount of such Bond by $5,000. (d) Redemption Notices. The City shall cause notice of the call for redemption identifying the Bonds or portions thereof to be redeemed to be sent by facsimile transmission, registered or certified mail or overnight express delivery, not less than 30 nor more than 60 days 4822-0535-5278.2 4 prior to the redemption date, to the registered owner of the Bonds. The City shall not 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 thereof will be issued to the registered owner upon the surrender thereof. 5. Execution and Authentication. The Bonds shall be signed by the manual or facsimile signature of the Mayor or Vice -Mayor, shall be countersigned by the manual or facsimile signature of the City Clerk or Deputy Clerk, and the City's seal shall be affixed thereto or a facsimile thereof printed thereon; provided, that if both of such signatures are facsimiles, no Bond shall be valid until it has been authenticated by the manual signature of the City Treasurer, as Registrar, or an authorized officer or employee of any bank or trust company serving as successor Registrar and the date of authentication noted thereon. 6. Bond Form. The Bonds shall be in substantially the form attached to this Resolution as Exhibit A, with such completions, omissions, insertions and changes not inconsistent with this Resolution as may be approved by the officers signing the Bonds, whose approval shall be evidenced conclusively by the execution and delivery of the Bonds. 7. Pledge of Full Faith and Credit. The full faith and credit of the City are irrevocably pledged for the payment of the principal of, premium, if any, and interest on the Bonds. Unless other funds are lawfully available and appropriated for timely payment of the Bonds, the City Council shall levy and collect an annual ad valorem tax, over and above all other taxes authorized or limited by law and without limitation as to rate or amount, on all locally taxable property in the City sufficient to pay when due the principal of, premium, if any, and interest on the Bonds. 8. Registration, Transfer and Owners of Bonds. The City Treasurer is appointed paying agent and registrar for the Bonds (the "Registrar"). The City may appoint a qualified bank or trust company as successor paying agent and registrar of the Bonds. The Registrar shall maintain registration books for the registration and registration of transfers of the Bonds. Upon presentation and surrender of any Bonds at the office of the Registrar, or at its designated corporate trust office if the Registrar is a bank or trust company, together with an assignment duly executed by the registered owner or his 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, if required by Section 5, and shall deliver in exchange, a new Bond or Bonds having an equal aggregate principal amount, in authorized denominations, of the same form and maturity, bearing interest at the same rate and registered in the name as requested by the then registered owner thereof or its duly authorized attorney or legal representative. Any such transfer or exchange shall be at the expense of the City, except that the Registrar may charge the person requesting such transfer or 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 or entity exclusively entitled to payment of principal, premium, if any, and interest and the exercise of all other rights and 4822-0535-5278.2 5 powers of the owner, except that interest payments shall be made to the person or entity shown as owner on the registration books as of the Record Date. 9. Sale of Bonds. The City Council approves the following terms of the sale of the Bonds. The Bonds shall be sold by competitive bid in a principal amount to be determined by the City Manager, in collaboration with the Financial Advisor, and subject to the limitations set forth in Sections 1 through 3, and the City Manager shall receive bids for the Bonds and award the Bonds to the bidder providing the lowest "true" or "Canadian" interest cost, subject to the limitations set forth in Section 2. Following the sale of the Bonds, the City Manager shall file a certificate with the City Clerk setting forth the final terms of the Bonds. The actions of the City Manager in selling the Bonds 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 City Council. 10. Notice of Sale; Bid Form. The City Manager, in collaboration with the Financial Advisor, is authorized and directed to take all proper steps to advertise the Bonds for sale substantially in accordance with the forms of the Official Notice of Sale and the Official Bid Form, which forms are attached as an Appendix to the draft of the Preliminary Official Statement described in Section 11 below, and which forms are approved; provided, that the City Manager, in collaboration with the Financial Advisor, may make such changes in the Official Notice of Sale and the Official Bid Form not inconsistent with this Resolution as he may consider to be in the best interest of the City. 11. Official Statement. A draft of a Preliminary Official Statement describing the Bonds, a copy of which has been provided or made available to each member of the City Council, is approved as the form of the Preliminary Official Statement by which the Bonds will be offered for sale, with such completions, omissions, insertions and changes not inconsistent with this Resolution as the City Manager, in collaboration with the Financial Advisor, may consider appropriate. After the Bonds have been sold, the City Manager, in collaboration with the Financial Advisor, shall make such completions, omissions, insertions and changes in the Preliminary Official Statement not inconsistent with this Resolution as are necessary or desirable to complete it as a final Official Statement for the Bond, execution thereof by the City Manager to constitute conclusive evidence of his approval of any such completions, omissions, insertions and changes. The City shall arrange for the delivery to the purchaser of the Bonds of a reasonable number of copies of the final Official Statement by the earlier of seven business days after the Bonds have been sold or the date of issuance thereof, for delivery to each potential investor requesting a copy of the Official Statement and for delivery to each person to whom such purchaser initially sells Bonds. 12. Official Statement Deemed Final. The City Manager is authorized, on behalf of the City, to deem the Preliminary Official Statement and the Official Statement in final form for the Bonds, each to be final as of its date within the meaning of Rule 15c2-12 ("Rule 15c2-12") of the Securities and Exchange Commission (the "SEC"), except for the omission in the Preliminary Official Statement of certain pricing and other information permitted to be omitted pursuant to Rule 15c2-12. The distribution of the Preliminary Official Statement and the Official Statement in final form shall be conclusive evidence that each has been deemed final as of its date by the City, except for the omission in the Preliminary Official Statement of such pricing and other information permitted to be omitted pursuant to Rule 15c2-12. 4822-0535-5278.2 13. Preparation and Delivery of Bonds. After bids have been received and the Bonds have been awarded to the winning bidder, the officers of the City are authorized and directed to take all proper steps to have the Bonds prepared and executed in accordance with their terms and to deliver the Bonds to the purchaser thereof upon payment therefor. 14. Arbitrage Covenants. The City covenants that it shall not take or omit to take any action the taking or omission of which will cause the Bonds to be "arbitrage bonds" within the meaning of Section 148 of the Internal Revenue Code of 1986, as amended, and regulations issued pursuant thereto (the "Code"), or otherwise cause interest on the Bonds to be includable in the gross income of the registered owners thereof under existing laws. 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 any part of the earnings derived from the investment of the gross proceeds of the Bonds, unless the City receives an opinion of nationally recognized bond counsel that such compliance is not required to prevent interest on the Bonds from being includable in the gross income of the registered owners thereof under existing law. The City shall pay any such required rebate from its legally available funds. 15. Non -Arbitrage Certificate and Elections. Such officers of the City as may be requested are authorized and directed to execute an appropriate certificate setting forth the reasonably expected use and investment of the proceeds of the Bonds in order to show that such reasonably expected use and investment will not violate the provisions of Section 148 of the Code, and any elections such officers deem desirable regarding rebate of earnings to the United States, for purposes of complying with Section 148 of the Code. Such certificate and elections shall be in such form as may be requested by bond counsel for the City. 16. Limitation on Private Use. The City covenants that it shall not permit the proceeds of the Bonds or the facilities financed or refinanced with the proceeds of the Bonds to be used in any manner that would result in (a) 5% or more of such proceeds or of the facilities financed or refinanced with such proceeds being used in a trade or business carried on by any person other than a governmental unit, as provided in Section 141(b) of the Code, (b) 5% or more of such proceeds or the facilities being financed 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 (c) 5% or more of such proceeds being 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; provided, that if the City receives an opinion of nationally recognized bond counsel that any such covenants need not be complied with to prevent the interest on the Bonds from being includable in the gross income for federal income tax purposes of the registered owners thereof under existing law, the City need not comply with such covenants. 17. Continuing Disclosure Agreement. The Mayor, the City Manager and such officer or officers of the City as either may designate are hereby authorized and directed to execute and deliver a continuing disclosure agreement setting forth the reports and notices to be filed by the City and containing such covenants as may be necessary to assist the purchaser of the Bonds in complying with the provisions of Rule 15c2-12. Such continuing disclosure agreement shall be substantially in the form attached as an Appendix to the draft of the Preliminary Official Statement described in Section 11 above, which form is approved with such completions, omissions, insertions and changes that are not inconsistent with this Resolution. 18. Other Actions. All other actions of officers of the City and of the City Council 4822-0535-5278.2 7 in conformity with the purposes and intent of this Resolution and in furtherance of the issuance and sale of the Bonds are hereby ratified, approved and confirmed. The officers of the City are authorized and directed to execute and deliver all certificates and instruments and to take all such further action as may be considered necessary or desirable in connection with the issuance, sale and delivery of the Bonds. 19. Investment Authorization. The City Council hereby authorizes the Director of Finance to direct the City Treasurer to utilize the State Non -Arbitrage Program of the Commonwealth of Virginia ("SNAP") in connection with the investment of the proceeds of the Bonds, if the City Manager and the Director of Finance determine that the utilization of SNAP is in the best interest of the City. The City Council acknowledges that the Treasury Board of the Commonwealth of Virginia is not, and shall not be, in any way liable to the City in connection with SNAP, except as otherwise provided in the SNAP Contract. 20. Repeal of Conflicting Resolutions. All resolutions or parts of resolutions in conflict herewith are repealed. 21. Effective Date. This Resolution shall take effect immediately. Exhibit A — Form of Bond 4822-0535-5278.2 Exhibit A — Form of Bond 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 this 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 No UNITED STATES OF AMERICA COMMONWEALTH OF VIRGINIA CITY OF VIRGINIA BEACH [General Obligation Public Improvement [Refunding] Bond Series 2012 REGISTERED 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, promises to pay, upon surrender hereof to the registered owner hereof, or registered assigns or legal representative, the Principal Amount stated above on the Maturity Date stated above, subject to prior redemption as hereinafter provided, and promises to pay interest hereon from the Dated Date stated above on each and , beginning 1, 2012, at the annual Interest Rate stated above, calculated on the basis of a 360 -day year of twelve 30 -day months. Principal, premium, if any, and interest are payable in lawful money of the United States of America by the City Treasurer, who has been appointed Registrar (the "Registrar"). The City may appoint a qualified bank as successor paying agent and registrar for the bonds. Notwithstanding any other provision hereof, this bond is subject to a book -entry system maintained by The Depository Trust Company ("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 Blanket Issuer Letter of Representations to DTC. 4822-0535-5278.2 This bond is one of an issue of $ [General Obligation Public Improvement [Refunding] Bonds, Series 201 2(the "Bonds"), of like date and tenor, except as to number, denomination, rate of interest, privilege of redemption and maturity, and is issued pursuant to the Constitution and statutes of the Commonwealth of Virginia, including the City Charter and the Public Finance Act of 1991. The Bonds have been authorized by ordinances adopted by the City Council of the City of Virginia Beach (the "City Council") on May 11, 2010 and May 10, 2011, and, [The Refunding Bonds] are being issued pursuant to a resolution adopted by the City Council on March , 2012 (the "Bond Resolution"), to finance [various public, school, road and highway, coastal, economic and tourism, building and parks and recreation improvements,] [to refund $ of the City's General Obligation Bonds, Series ] and to pay costs of issuance of the Bonds. The Bonds maturing on or before [ , 20221, are not subject to optional redemption prior to maturity. The Bonds maturing on or after �_ , 20231, are subject to redemption prior to maturity at the option of the City on or after [ , 20221, in whole or in part at any time (in any multiple of $5,000), upon payment of the following redemption prices (expressed as a percentage of principal amount of the Bonds to be redeemed) plus interest accrued and unpaid to the date fixed for redemption: Period During Which Redeemed (Both Dates Inclusive) Redemption Price The Bonds maturing on , 20_, are required to be redeemed in part before maturity by the City on , 20 in the years and amounts set forth below, at a redemption price equal to 100% of the principal amount of the Bonds to be redeemed, plus interest accrued and unpaid to the date fixed for redemption: Year Amount Year Amount The Bond Resolution provides for a credit against the mandatory sinking fund redemption of the Bonds maturing on , 20 in the amount of Bonds of the same maturity that have been optionally redeemed or surrendered for cancellation and have not been applied previously as such a credit. If less than all of the Bonds are called for optional redemption, the maturities of 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 the Bonds of a particular maturity are called for redemption, the Bonds within such maturity 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 In either case, (a) the portion of any Bond to be redeemed shall be in the principal amount of $5,000 or some integral multiple thereof and (b) in selecting Bonds for redemption, each Bond shall be considered as representing that number of 4822-0535-5278.2 A-2 Bonds that is obtained by dividing the principal amount of such Bond by $5,000. The City shall cause notice of the call for redemption identifying the Bonds or portions thereof to be redeemed to be sent 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 DTC or its nominee as the registered owner hereof If a portion of this bond is called for redemption, a new Bond in the principal amount of the unredeemed portion hereof will be issued to the registered owner upon surrender hereof. The full faith and credit of the City are irrevocably pledged for the payment of principal of, premium, if any, and interest on this bond. Unless other funds are lawfully available and appropriated for timely payment of this bond, the City Council shall levy and collect an annual ad valorem tax, over and above all other taxes authorized or limited by law and without limitation as to rate or amount, on all taxable property within the City sufficient to pay when due the principal of, premium, if any, and interest on this bond. The Registrar shall treat the registered owner of this bond as the person or entity exclusively entitled to payment of principal of and interest on this bond and the exercise of all other rights and powers of the owner, except that interest payments shall be made to the person or entity shown as the owner on the registration books on the first day of the month preceding each interest payment date. In the event a date for the payment of principal, redemption price, or interest on this bond is not a business day, then payment of principal, redemption price, and interest on, this bond shall be made on the next succeeding day which is a business day, and if made on such next succeeding business day, no additional interest shall accrue for the period after such payment or redemption date. All acts, conditions and things required by the Constitution and statutes of the Commonwealth of Virginia to happen, exist or be performed precedent to and in the issuance of this bond have happened, exist and have been performed, and the issue of Bonds of which this bond is one, together with all other indebtedness of the City, is within every debt and other limit prescribed by the Constitution and statutes of the Commonwealth of Virginia. 4822-0535-5278.2 A_3 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 Mayor, City of Virginia Beach, Virginia 4822-0535-5278.2 A_4 ASSIGNMENT FOR VALUE RECEIVED the undersigned sell(s), assign(s) and transfer(s) unto: (Please print or type name and address, including postal 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. 4822-0535-5278.2 A-5 Requires an affirmative vote by a majority of the members of the City Council. Adopted by the City Council of the City of Virginia Beach, Virginia, this day of March, 2012. APPROVED AS TO CONTENT: (2&w, a - - Finance Department 4822-0535-5278.2 A-6 APPROVED AS TO LEGAL SUFFICIENCY: C* e ffice T atyMx* _ CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: Resolution of the City Council of the Manager or Designee to Establish Procedures for Tax -Exempt Bonds MEETING DATE: March 13, 2012 City of Virginia Beach Authorizing the City Post -Issuance Compliance Policies and ■ Background: The City issues general obligation and other tax advantaged debt to pay for capital projects. To maintain the tax-exempt status of such bonds, a number of tax rules need to be followed after the debt is issued. These rules are provided by sections 141-150 of the Internal Revenue Code. When the City issues a series of bonds, it covenants that it will perform all acts necessary to maintain the tax advantaged status of the bond. Specifically, the City agrees to avoid the two primary rules related to arbitrage and private use. The arbitrage rule is designed to discourage the use of tax- exempt debt proceeds to acquire investments with higher yields. The private use rule requires the bond proceeds be used for public projects. In addition to these two rules, there are record-keeping and annual disclosure processes. ■ Considerations: The Department of Finance currently undertakes these activities, but the policies and procedures will consolidate the various activities into a single document. In addition to the resolution, this agenda item includes a draft of the proposed Post -Issuance Compliance Policies and Procedures. Upon adoption of this resolution, the City Manager through the Director of Finance will finalize the Post - Issuance Compliance Policies and Procedures, so that these written procedures are complete prior to the next bond closing, which is anticipated in April. ■ Public Information: Public information will be provided by the regular Council agenda process. ■ Attachments: Resolution; Post -Issuance Compliance Policies and Procedures Recommended Action: Approval Submitting Department/Agency: Finance Department 9"R4tv City Manager:, 1 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF 2 VIRGINIA BEACH AUTHORIZING THE CITY MANAGER 3 TO ESTABLISH POST -ISSUANCE COMPLIANCE 4 POLICIES AND PROCEDURES FOR TAX-EXEMPT 5 BONDS 6 WHEREAS, the City of Virginia Beach, Virginia (the "City") has previously issued 7 and will in the future issue governmental purpose bonds or other tax-exempt obligations 8 (the "Tax -Exempt Bonds") the interest on which is excluded from gross income of the 9 owners thereof pursuant to Sections 103 and 141-150 of the Internal Revenue Code of 10 1986, as amended (the "Code"); and 11 WHEREAS, the City has also previously issued governmental purpose tax credit 12 bonds (the "Tax Credit Bonds"), and may do so in the future to the extent permitted by 13 federal tax law, that entitle the City, the owners of the Tax Credit Bonds, or any other 14 permitted party to either a credit against federal income tax liability or a refundable 15 credit from the United States Treasury; and 16 WHEREAS, the Tax -Exempt Bonds and the Tax Credit Bonds may be referred to 17 collectively as the "Tax -Advantaged Bonds"; and 18 WHEREAS, in connection with the issuance of each series of Tax -Advantaged 19 Bonds, the City has executed or will execute covenants and certificates wherein the City 20 represents that it expects and intends to be able to comply with and will, to the extent 21 permitted by law, comply with the provisions and procedures set forth in such covenants 22 and certificates and will do and perform all acts and things necessary or desirable in 23 order to assure for as long as such bonds are outstanding either (i) that the interest on 24 the series of Tax -Exempt Bonds to which such covenants and certificates relate will be 25 excluded from gross income of the owners thereof for federal income tax purposes or 26 (ii) that the Tax Credit Bonds to which such covenants and certificates relate will remain 27 eligible for the applicable federal income tax credit; and 28 WHEREAS, upon the advice of the City's Bond Counsel, the City has determined 29 that it is advantageous and in the best interests of the City and the owners of the Tax - 30 Advantaged Bonds to establish certain post -issuance compliance policies and 31 procedures (the "Post -Issuance Compliance Policies and Procedures") to comply with 32 recent informational statements released by the Internal Revenue Service ("IRS") and 33 related changes made by the IRS to its information reporting forms for Tax -Advantaged 34 Bonds requiring bond issuers to indicate whether they have established written 35 procedures for monitoring and tracking the use and investment of proceeds of Tax - 36 Advantaged Bonds, and for monitoring the use of the projects financed with the 37 proceeds of such bonds; and 38 WHEREAS, the City has historically monitored its Tax Advantage Bonds and the 39 projects financed with such bonds post issuance to ensure compliance with IRS 40 requirements, but has not developed written procedures for such purpose, and City 41 Council desires that the City have in place written Post -Issuance Compliance Policies 42 and Procedures as recommended by the IRS, and directs the City Manager in 43 consultation with the Director of Finance and the City's General Obligation Bond 44 Counsel to establish and adopt such policies and procedures. 45 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY 46 OF VIRGINIA BEACH, VIRGINIA, THAT: 47 1. The City Council hereby directs the City Manager in consultation with the 48 Director of Finance and the City's General Obligation Bond Counsel to establish written 49 Post -Issuance Compliance Policies and Procedures which satisfy IRS guidelines and 50 requirements; 51 2. The Post Issuance Policies and Procedures shall be administered by the 52 Director of Finance and such other officers and staff as the Director of Finance may 53 designate and authorize for such purpose. Such policies and procedures may be 54 modified or amended from time to time as the City Manager and Director of Finance 55 determine appropriate; provided any modification or amendment thereto is in 56 compliance with then current IRS requirements and guidelines; 57 3. The City Manager, the Finance Director and other officers and staff 58 designated by such officers are authorized to take such additional action as may be 59 necessary or appropriate to establish the Post -Issuance Policies and Procedures 60 authorized by this Resolution, and all related actions previously taken by officers of the 61 City are hereby ratified and confirmed; and 62 4. This Resolution shall take effect immediately. Adopted by the Council of the City of Virginia Beach, Virginia, on the day of , 2012. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: Finance Depa-rtment CA12132 R-1 February 10, 2012 r City At ice EXHIBIT A WRITTEN POST -ISSUANCE COMPLIANCE POLICIES AND PROCEDURES I. Purpose A. In General. The Internal Revenue Service (the "IRS") has strongly recommended that issuers of municipal bonds assist with the efforts to administer the income tax laws by adopting written policies and procedures that are intended to assure that appropriate compliance measures are implemented by such issuers after their bonds have been issued. This document constitutes and is intended to memorialize formally the written post - issuance compliance policies and procedures (the "PICPP") that the City Council of the City of Virginia Beach, Virginia (the "Issuer") has previously followed in connection with the issuance of the Issuer's Tax -Advantaged Bonds (as defined herein). B. Definitions. 1. "Authorized Representative" means the Post -Issuance Compliance Officer of the Issuer designated in II below and any officer or staff of the Issuer designated by the Post -Issuance Compliance Officer to perform any of the functions described in this PICPP. 2. "Bad Use" means expenditure on projects to be used by other than a governmental user, a loan to a non-governmental person or use of a bond -financed facility by a non-governmental person. As indicated herein, such use may arise pursuant to a management agreement, research agreement, naming rights agreement, lease or any similar agreement relating to a bond -financed facility. 3. "Bad Payments" means any payments derived from Bad Use of bond financed property. 4. "Bond Counsel" means any nationally recognized bond counsel engaged by or on behalf of the Issuer to review or opine on matters covered by this PICPP. 5. "Code" means the Internal Revenue Code of 1986, as amended. 6. "Governing Body" means the City Council of the Issuer. 7. "Regulations" means the Income Tax Regulations promulgated pursuant to the Code. 8. "Tax -Advantaged Bonds" means, collectively, any of the Issuer's Tax Credit Bonds and Tax -Exempt Bonds. 9. "Tax Closing Documentation" means any and all covenants, certificates, instructions and information reporting documentation contained in the closing transcript 1 or record of proceedings for any series of Tax -Advantaged Bonds, whether executed in connection with the issuance of any such series of obligations or executed post -closing. 10. "Tax Credit Bonds" means the one or more series of governmental purpose tax credit bonds or other form of obligations that the Issuer has previously issued or may in the future issue that entitle the Issuer, the owners of the Tax Credit Bonds, or any other permitted party to either a credit against federal income tax liability or a refundable credit from the United States Treasury. 11. "Tax -Exempt Bonds" means the one or more series of governmental purpose bonds or other form of tax-exempt obligations that the Issuer has previously issued or may in the future issue, the interest on which is excludable from gross income of the owners thereof pursuant to Sections 103 and 141-150 of the Code and Regulations. C. Incorporation of Tax Closing Documentation. This PICPP shall be deemed to include and hereby incorporates all Tax Closing Documentation for each issue of the Issuer's Tax -Advantaged Bonds. D. Incorporation of Appendices. This PICPP shall be deemed to include and hereby incorporates all special post -issuance compliance policies and procedures set forth in each of the Appendices hereto. Il. Overall Responsibility for Compliance A. Assignment of Responsibility. Oversight responsibility for post -issuance compliance is assigned to the Debt Administrator. Such officer is hereby designated the Post -Issuance Compliance Officer ("PICO"). Certain specific compliance responsibilities may be assigned by the PICO to a designated Authorized Representative of the Issuer as stated below. B. Consultation with Outside Professionals. The PICO and any Authorized Representative may consult with any Bond Counsel or other municipal finance advisors or professionals that they deem appropriate to meet the requirements of this PICPP. III. Tax Documentation Assembly and Closing Filing Requirements A. Tax Documentation Assembly. The PICO will assemble and document to his or her satisfaction the location of all Tax Closing Documentation for each issue of Tax - Advantaged Bonds of the Issuer. The PICO will keep all post -closing documentation as a supplement to the Tax Closing Documentation. Source: Bond Transcripts B. Closing Filing Requirements. The PICO will confirm to his or her satisfaction the filing of the appropriate Form 8038-G or Form 8038 -TC no later than the 15th day of the second calendar month after the close of the calendar quarter during which bonds are issued. Source: Bond Transcripts C. Recordkegping. All documentation relating to the Tax -Advantaged Bonds assembled pursuant to the tax document assembly referred to above or pursuant to any or 2 any other compliance topic in this PICPP will be subject to the General Recordkeeping Requirements and Records Retention requirements set forth below. D. Coordination with Accounting Systems. With respect to all compliance topics set forth in this PICPP and where relevant, the Debt Administrator, in coordination with the Comptroller, will confirm recording of all information relating to any of the compliance topics set forth in this PICPP in either the Issuer's or any third -party or trustee accounting system. If a trustee has been engaged, and there is a change in the trustee, the Debt Administrator will consult with the new trustee to ensure that all investment records have been transferred and are being maintained. IV. Arbitrage Investment Limitations and Rebate Requirements A. Assignment of Compliance Duty. With respect to this compliance topic, the PICO will coordinate compliance for each issue of Tax -Advantaged Bonds under this PICPP and the Tax Closing Documentation for each such issue. The PICO designates the Comptroller, Financial Advisor, and Bond Counsel to assist complying with this topic. B. Information Assembly Collection and Procedures. If not already set forth in the Tax Closing Documentation for an issue, Debt Administrator will determine and record the following information and establish the following procedures: 1. Basic Information. (a) Determine whether the Tax -Advantaged Bonds are a fixed yield issue of bonds or a variable yield issue of bonds. Source: Bond Transcripts (b) Determine whether the bonds are secured by a bond insurance policy, letter of credit, or other form of credit enhancement or liquidity facility. Source: Bond Transcripts With respect to all bond insurance, letter of credit, other credit enhancement or liquidity facilities entered into with respect to the bonds, determine or confirm with Bond Counsel the impact of such a transaction on the bonds prior to entering into or amending or terminating any such credit enhancement. 2. Arbitrage Investment Limitation Information. (a) Identify or provide for the computation of the bond yield for each issue of the Tax -Advantaged Bonds. Source: Final Sources and Uses t (b) Identify each fund or account containing "gross proceeds" of the bonds (as that term is defined in the Regulations), including any fund or account established under agreements other than the bond ordinance, resolution, indenture or Tax Closing Documentation, particularly any fund or account that may be expected to be used to pay debt service on the bonds. Source: Debt Administration (c) Identify the applicable temporary periods and investment yield restrictions with respect to each such fund or account, including the investment yield restrictions applicable at the end of each temporary period. Sources: Final Sources and Uses, State Non - Arbitrage Program, Debt Administration (d) Confirm that the size of any "reasonably required reserve fund" for the bonds (as that term is defined in the Regulations) has not been funded in an amount more than 10% of the issue price or principal amount of the bonds as may be applicable. Identify any investment yield restrictions applicable for deposits of any other moneys into such a reserve fund in excess of the applicable limits for such reserve fund as set forth in the Tax Closing Documentation. Source: Debt Administration and Financial Advisor (e) Record each type of investments in which gross proceeds have been invested. Source: State Non -Arbitrage Program Record whether investments were purchased at a fair market value and whether they were purchased on a negotiated basis or were put out for bid. If by bid, obtain all documentation relating to whether there was compliance with the bidding rules established for the specific investment. Consult with Bond Counsel and/or financial advisors, if needed. (f) Provide for the documentation, computation and payment of any yield reduction payments in the same manner as set forth for rebate payments below. Source: State Nan -Arbitrage Program 3. Rebate Information. (a) Determine for each issue of Tax -Advantaged Bonds no later than the date set forth in the Tax Closing Documentation (and in no event later than the fifth anniversary date of the date of issuance of each issue), if a rebate consultant needs to be retained and the timing for hiring of such a rebate consultant. Obtain a copy of all rebate reports provided by a rebate consultant. Source: Debt Administration and State Non -Arbitrage Program E (b) Establish whether each issue is eligible for any spending or small issuer exception to the rebate requirements. Source: Debt Administration and State Non -Arbitrage Program (c) Except as may otherwise be provided in the Tax Closing Documentation, establish a calendar of each date for each of the Issuer's bond issues that the Issuer will be required to make any rebate payment to the United States (generally, every 5 years and upon final payment of all bonds). Such a calendar must recognize that the dates of any required rebate payment to the United States must be adjusted to reflect any redemption date of a bond issue prior to final maturity. Source: Debt Administration and State Non - Arbitrage Program (d) Provide a procedure for timely filing of any required rebate payment to the United States, including the completion of any IRS Form 8038-T. Source: Debt Administration 4. Special Arbitrage and Rebate Spending Procedures. To the extent that any bond proceeds are used to reimburse the issuer for expenditures paid prior to the date of issuing the bonds, the PICO will assure that such proceeds are allocated to the reimbursement of such expenditures no later than 18 months after the later of (i) the date the expenditure was paid, or (ii) the date that the project was placed in service, but in no event more than 3 years after the expenditure was paid. Source: Debt Administration and Comptroller 5. Error Correction Procedures. The PICO will document, as soon as practicable after bond closing, all steps to be taken in order to correct any investment and rebate compliance errors. These steps may include, but are not limited to, consultation with Bond Counsel or any of the procedures described in section VII below as may be applicable. Source: Debt Administration and Bond Counsel V. Bond Proceeds Spending Requirements A. Assignment of Compliance Duty. With respect to this compliance topic, the PICO will coordinate compliance for each issue of Tax -Advantaged Bonds under this PICPP and the Tax Closing Documentation for each such issue. B. Information Assembly Collection and Procedures. If not already set forth in the Tax Closing Documentation for an issue, the PICO will determine and record the following information and establish the following procedures: E 1. Basic Information. Sources: Debt Administration. Financial Advisor. Bond Counsel, Bond Transcripts (a) Assemble a list of all purposes and projects to be financed by the bonds, including information on the expected useful lives of projects. (b) Designate which of these purposes represent capital expenditures or working capital. (c) Establish the exact amount of bond proceeds and all other sources of funding for the project. In connection with this procedure, the PICO will document all requirements applicable to such other sources of funding. (d) Determine the amount, if any, of bond proceeds that may be expended on payment of interest on the bonds (i.e., capitalized interest) and all applicable spending and time limits applicable to such payment of interest on the bonds. (e) Identify and calendar any time periods that may be applicable as to when bond proceeds must be spent. 2. Spending Limitation Procedures Source: Debt Administrator, Comptroller, State Non -Arbitrage Program (a) The PICO will establish such accounting controls as are necessary to guarantee that no more than the lesser of (i) 10% of the net proceeds or (ii) $15 million will be expended on projects used by persons other than a governmental unit. (b) The PICO will establish such accounting controls as are necessary to guarantee that no more than 5% of net proceeds of the bonds may be used for a purpose that is unrelated to, or disproportionate to, the governmental purpose of the bond issue (e.g., a privately operated cafeteria in a government office building is generally related use; leasing of space in the government office building to private commercial tenants is unrelated use). (c) The PICO will establish such accounting controls as are necessary to guarantee that no more than 5% of net proceeds of the bonds are loaned to a non-governmental person. (d) The PICO will establish such accounting controls as are necessary to assure that all costs of issuance that are paid with bond proceeds are so paid no later than 180 days after the date of issuing the bonds. R The PICO will establish such accounting controls as are necessary to identify to the PICO whether there is a variance of greater than 10% in the amount of costs of issuance, credit enhancement costs and refunding or new money uses reported on the IRS Form 8038- G for the bond issue. (e) The PICO will establish such accounting controls, calendars and reporting procedures as are necessary to confirm that any time periods limiting spending have been met. In connection with this procedure, for new money issues, the PICO will establish such accounting reports as are necessary to determine at least annually the amounts and percentages of bond proceeds that have been spent on the intended projects. (f) The PICO will establish such accounting controls as are necessary to confirm that the proceeds are spent on the approved projects. (g) The PICO will establish such accounting and review procedures as are necessary to record and approve a change from an expected qualified project to a qualified substitute project. (h) The PICO will establish such accounting and review procedures as are necessary to arrange for qualified expenditures of any unspent moneys that remain after completion of the original list of projects to be financed by the Tax -Advantaged Bonds. In connection with this procedure, the PICO will prepare a written, detailed explanation regarding why such proceeds remain unspent. In connection with this procedure, if a significant amount (i.e., more than 15%) of Tax -Exempt Bond proceeds or any amount of Tax Credit Bond proceeds remain unexpended as of the third anniversary date of the date of issue of the bonds, the PICO will confirm with Bond Counsel the proper steps to take to protect the qualified status of such bonds (including but not limited to the continued investment of such amounts) and will confirm with Bond Counsel whether the existence of such unspent proceeds impacts the ability of the Issuer to issue any new issue of Tax - Advantaged Bonds. (i) The PICO will establish such accounting controls, calendars and reporting procedures and such other review procedures as are necessary to confirm the actual expenditure or deemed allocation to expenditure of all bond gross proceeds by the date that is no later than 18 months after the later of the date the expenditure is paid or the date any project that is financed by the issue is placed in service. A final record of all actual expenditures or deemed 7 allocations to expenditures must in all events be made by the date that is 60 days after the fifth anniversary date of the issuance of the bonds or 60 days after the retirement of the bonds, if earlier. VI. Use of Bond Financed Property and Bad Use or Bad Payments Limitations A. Assiwnment of Compliance Duty. With respect to this compliance topic, the PICO will coordinate compliance for each issue of Tax -Advantaged Bonds under this PICPP and the Tax Closing Documentation for each such issue. B. Information Assembly Collection and Procedures. If not already set forth in the Tax Closing Documentation for an issue, the PICO will determine and record the following information and establish the following procedures: 1. Basic Information Source: Debt Administrator (a) Determine as of the date of issue of the bonds how each source of funding is to be expended on or allocated to any Bad Use. (b) Determine the amount of bond proceeds loaned or granted to non- governmental entities. (c) Determine the list of payments to be derived from operation of the bond financed property and whether the bond financed property secures the repayment of the bonds. 2. Bad Use and Bad Payments Control Procedures. (a) The PICO will establish such monitoring procedures as are necessary to bring to the attention of the PICO for approval prior to execution any lease, sales contract or other disposition of tax- exempt bond financed property. Source: Debt Administrator; policy to be developed (b) With respect to the operation of tax-exempt bond financed property, the PICO will establish such monitoring procedures as are necessary to bring to the attention of the PICO for approval prior to execution any naming rights, sales or licensing contract; any management or service contract, research contract; any output contracts; cell phone tower agreements; solar power contracts or windmill -generation contracts or similar types of contracts. Source: Debt Administrator; procedure to be developed (c) Immediately upon the execution of any lease, sale or other disposition that constitutes a Bad Use, and in all events no less than annually during the term of any bond issue, the PICO will provide a calculation of the amount of Bad Use and Bad Payments with respect to bond financed property. Source: Debt Adininistration (d) Should the amount of Bad Use and Bad Payments approach the limits described above, the PICO will refer to the Change in Use and Remediation requirements of this PICPP and shall immediately consult with Bond Counsel as to the best course of action to respond to such a situation. Source: Debt Administration VII. Change in Use and Remediation A. Assignment of Compliance Duty. With respect to this compliance topic, the PICO will coordinate compliance for each issue of Tax -Advantaged Bonds under this PICPP and the Tax Closing Documentation for each such issue. B. Information Assembly Collection and Procedures. If not already set forth in the Tax Closing Documentation for an issue, the PICO will determine and record the following information and establish the following procedures: 1. Basic Information. The PICO will locate any information with respect to this compliance topic including any list of options stated in the Tax Closing Documentation that is available to remediate excess Bad Use (and Bad Payments). 2. Change in Use and Remediation Procedures. Source: Debt Administrator, Bond Counsel (a) Should the information collected by the PICO with respect to Bad Use and/or Bad Payments indicate that the use or payments are in excess of the prescribed limits for the bond issue, the PICO will consult with Bond Counsel as to the remedial actions available under the Regulations to correct such excess use or payments. (b) Should the information collected by the PICO with respect to Bad Use and/or Bad Payments indicate that the use or payments are in excess of the prescribed limits for the bond issue and the remedial actions set forth in the Regulations are not applicable, the PICO will consult with Bond Counsel as to the options that are available for voluntary correction of failures by entering into a closing agreement under the Tax -Exempt Bonds Voluntary Closing Agreement Program described in IRS Notice 2008-31. 0 VIII. Refundings A. Assignment of Compliance Duty. With respect to this compliance topic, the PICO will coordinate compliance for each issue of Tax -Advantaged Bonds under this PICPP and the Tax Closing Documentation for each such issue. B. Information Assembly Collection and Procedures. If not already set forth in the Tax Closing Documentation for an issue, the PICO will determine and record the following information and establish the following procedures: 1. Basic Information. Source: Bond Transcripts (a) Determine the redemption dates for all refunded bonds. (b) Determine the list of projects being refinanced with proceeds of the bonds and any Bad Use or Bad Payments incurred with respect to such bond financed property. 2. Refunding_ Procedures Source: Debt Administrator, Bond Counsel (a) The PICO will establish such accounting reporting procedures as are necessary to assure that any refunded bonds are redeemed or retired within 90 days of the date of issue of the refunding bonds or, if the refunded bonds are not callable within 90 days, that such refunding is permitted under the Tax Closing Documentation or the Regulations and that such call date is the first call date for the refunded bonds required by the Tax Closing Documentation or the Regulations. (b) The PICO will apply the same policies and procedures as set forth in sections IV-V of this PICPP to any refunding bonds. With respect to this procedure, the PICO will ensure that any final rebate calculations for the refunded bonds will be performed within 60 days of redemption of refunded bonds and timely filing of Forms 8038-T or Forms 8038-R with such payment as may be required, as appropriate, will be made. (c) The PICO will apply the same policies and procedures as set forth in sections VI -VII of this PICPP to the property being refinanced by the refunding bonds. 10 IX. Modification of Bond Terms and Events of Default A. Assignment of Compliance Duty. With respect to this compliance topic, the PICO will coordinate compliance for each issue of Tax -Advantaged Bonds under this PICPP and the Tax Closing Documentation for each such issue. B. Information Assembly Collection and Procedures. If not already set forth in the Tax Closing Documentation for an issue, the PICO will determine and record the following information and establish the following procedures: 1. Basic Information. The PICO will assemble, and make all gathered information and documentation regarding the modification of bond terms or events of default, part of the Issuer's books and records. 2. Modification of Bond Terms and Events of Default Procedures. Source: Debt Administrator (a) The PICO will establish such accounting and reporting procedures as are necessary to confirm that any tax levy, tax credits or other revenues securing the bonds have been received and that the debt service on the Tax -Advantaged Bonds has been paid and compliance with non-payment covenants with respect to the Tax - Advantaged Bonds has occurred. In the event that any payment or other type of default occurs, the PICO will consult with Bond Counsel. (b) The PICO will establish such reporting requirements and information gathering procedures as are necessary to identify whether any events have occurred that would have or could have triggered a deemed discharge or reissuance of the bonds. Such reporting requirements will include assembling, prior to execution, if possible, information concerning (i) changes (modifications) of any of the contractual terms of the bonds (including modifications of the bond interest rates, maturity dates or payment schedule), (ii) changes to the credit enhancement of or liquidity facility for the bonds, (iii) changes in the nature of the security for the bonds, (iv) purchase of the Tax -Advantaged Bonds by the Issuer, or (v) any deferral or default of payment of principal and interest due on the Tax -Advantaged Bonds. With respect to this procedure, PICO should consult with Bond Counsel as to the options that are available to the Issuer for dealing 11 with such events, including acquiring any bond security from a federal agency or instrumentality. X. General Recordkeeping Requirements and Records Retention A. Assignment of Compliance Duty. Source: Debt Administration With respect to this compliance topic, the PICO will coordinate compliance for each issue of Tax -Advantaged Bonds under this PICPP and the Tax Closing Documentation for each such issue. B. Information Assembly Collection and Procedures. If not already set forth in the Tax Closing Documentation for an issue, the PICO will determine and record the following information and establish a General Recordkeeping Requirement and Records Retention Procedure. Pursuant to this procedure, the PICO will record in a retrievable paper or electronic form all of the information required by this PICPP. At a minimum for each issue of Tax -Advantaged Bonds, the PICO shall record and keep copies of. • the bond transcript of proceedings; • all resolutions (including reimbursement resolutions) and minutes pertaining to the projects financed, if not included in the bond transcript; • all surveys, feasibility or demand studies and any publications, brochures and newspaper articles with respect to the bonds, if not included in the bond transcript; • all bond yield computations including supporting certificates and investment records (including trustee records) pertaining to the issue price of the bonds, proceeds of the bonds, investment agreements and related bidding documents, credit enhancement and liquidity documents, swap documents, rebate reports and rebate payments; • all documents pertaining to the expenditure or granting of bond proceeds for the acquisition, construction or renovation of bond financed property including any trustee records, requisitions, reimbursements, draw schedules, draw requests, construction contracts, invoices, bills, land/project related appraisals, payment records, requisition statements, reimbursement records, cancelled checks, a final schedule of property financed by the bonds and final allocations of bond proceeds; • all formal elections made for the bond financing (e.g., an election to employ an accounting methodology other than specific tracing) • all records of trade or business use, purchase, lease, sublease or sale of bond financed property including any leasehold improvement contracts and ownership documentations such as joint venture arrangements, limited liability corporation arrangements or partnership arrangements; 12 • all management contracts and other service agreements, research contracts, naming rights contracts and those contracts listed in section VLB.2.(b) of this PICPP; • all accounting audits for bond financed property; • all information reports filed for the bonds; • all documentation pertaining to any prior IRS examination of Issuer and/or tax-exempt bonds; and • all correspondence related to the above (faxes, emails and letters) C. The PICO will develop such procedures as are necessary to document the payments made of all principal, interest and any redemption payments on the Tax - Advantaged Bonds. D. All records accumulated for the bond issue shall be maintained for a period of [three/four] years following the later of (i) final maturity of the bonds or (ii) any Tax - Advantaged Bonds issued to refund the bonds. XI. IRS Correspondence and Audits The PICO will consult with Bond Counsel immediately upon receipt of any correspondence from, or opening of an examination of any type, with respect to Tax -Advantaged Bonds by the IRS. XIII. Training Requirements The PICO will develop a training program that is designed to inform any successor PICO of the requirements of this PICPP and periodically to train all Authorized Representatives of their duties under this PICPP. Such a training program may be developed with internal materials or those supplied by Bond Counsel and shall include a review of the Code and the IRS's web site established for the use of the tax-exempt bond community located at http://www.irs.gov/taxexeml2tbond/index.html?navmenu=menul. XIV. Revision of PICPP The PICO will periodically seek the advice of Bond Counsel or other municipal finance advisors or professionals that he or she deems appropriate to revise the terms of this PICPP. 13 EXHIBIT II POST -ISSUANCE SECURITIES LAW REQUIREMENTS A. In each year that the Issuer has Tax -Advantaged Bonds or taxable obligations outstanding subject to SEC Rule 15c2-12, no later than the date 270 days after the end of the Issuer's fiscal year (the "Annual Report Due Date"), the PICO shall file, or cause its dissemination agent, if applicable, to file, its annual report (the "Annual Report") with the Municipal Securities Rulemaking Board (the "MSRB") through its Electronic Municipal Market Access facility for municipal securities disclosure ("EMMA"). In preparing its Annual Report, the PICO shall review each of its outstanding continuing disclosure undertakings (collectively, the "Undertakings") to determine the quantitative financial information and operating data which, together with the audited financial statements, shall constitute the content of the Annual Report. B. For its Undertakings with respect to bonds or other obligations issued before December 1, 2010, the PICO shall monitor the following events and provide notice of such events to the MSRB through EMMA as required by the applicable Undertaking: 1. Principal and interest payment delinquencies 2. Non-payment related defaults 3. Unscheduled draws on debt service reserves reflecting financial difficulties 4. Unscheduled draws on credit enhancements reflecting financial difficulties 5. Substitution of credit or liquidity providers, or their failure to perform 6. Adverse tax opinions or events affecting the tax-exempt status of the security 7. Modifications to the rights of security holders 8. Bond calls 9. Defeasances 10. Release, substitution or sale of property securing repayment of the securities 11. Rating changes. C. For its Undertakings with respect to bonds or other obligations issued on or after December 1, 2010, the PICO shall monitor the following events and provide notice of such events to the MSRB through EMMA as required by the applicable Undertaking, but not later than 10 business days after occurrence: 1. Principal and interest payment delinquencies 2. Nonpayment -related defaults, if material 1 3. Unscheduled draws on debt service reserves reflecting financial difficulties 4. Unscheduled draws on credit enhancements reflecting financial difficulties 5. Substitution of credit or liquidity providers, or their failure to perform 6. Adverse tax opinions, the issuance by the Internal Revenue Service 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 security, or other material events affecting the tax status of the security 7. Modifications to rights of security holders, if material 8. Bond calls, if material, and tender offers 9. Defeasances 10. Release, substitution or sale of property securing repayment of the securities, if material 11. Rating changes 12. Bankruptcy, insolvency, receivership or similar event of the Issuer* 13. The consummation of a merger, consolidation or acquisition involving the Issuer or the sale of all or substantially all of the assets of the Issuer, 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 14. Appointment of a successor or additional trustee or the change of name of a trustee, if material. This event is considered to occur when any of the following occur: the appointment of a receiver, fiscal agent or similar officer for the Issuer in a proceeding under the U.S. Bankruptcy Code or in any other proceeding under state or federal law in which a court or governmental authority has assumed jurisdiction over substantially all of the assets or business of the Issuer, or if such jurisdiction has been assumed by leaving the existing governing body and officials or officers in possession but subject to the supervision and orders of a court or governmental authority, or the entry of an order confirming a plan of reorganization, arrangement or liquidation by a court or governmental authority having supervision or jurisdiction over substantially all of the assets or business of the Issuer. •t sj CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Establish CIP #3-062, "CIT-UASI Interoperable Communications Technology Expansion," in the Capital Budget and to Accept and Appropriate Grant Funds for the Implementation of the Hampton Roads Overlay Regional Interoperability Network (ORION) MEETING DATE: March 13, 2012 ■ Background: The City of Virginia Beach, in coordination with the Hampton Roads Planning District Commission, has taken the lead in administering a program to expand and implement emergency communications between the cities of Hampton Roads. This role for this grant originally belonged to the City of Hampton, which is no longer able to do so due to staffing changes. In August 2011, the City applied for a grant from the U.S. Department of Homeland Security, processed through the Virginia Department of Emergency Management (VDEM). A resolution of support was provided by City Council on September 13, 2011. The funds will be used to acquire and deploy new P25 subscriber radios, to ensure adequate emergency communications interoperability and to acquire related support and maintenance contracts. This grant will improve Public Safety Answering Point (PSAP/911) and Overlay Regional Interoperability Network (ORION) capabilities and regional communications plans. On February 6, 2012, VDEM informed the City of a grant award totaling $2,500,000. The award was subsequently adjusted to $2,100,000 to be used as shown below. The grant does not require a local match. Item Amount P25 subscriber radios -portable accessories $110,000.00 P25 subscriber mobile radios 230,769.00 P25 subscriber portable radios 759,229.50 P25 700MHz remote Radio Site equipment/services-dual path microwave 100,000.00 P25 700MHz remote Radio Site equipment/services-five base radios 75,000.00 P25 700MHz remote Radio Site equipment/services-bridging equipment 375,000.00 P25 700MHz remote Radio Site equipment/services-antenna solution 50,001.50 Communications Exercise 200,000.00 Procure Consultant Services 200,000.00 Total $2,100,000.00 ■ Considerations: The attached ordinance has been prepared to establish and appropriate $2,100,000 of federal revenue to capital project 3-062, CIT-UASI Interoperable Communications Technology Expansion. As noted above, there is no local match required. ■ Public Information: Public information will be handled through the normal Council agenda process. ■ Attachments: Ordinance Recommended Action: Approval Submitting Department/Agency: Communications and Information Technolog City Manager - j , 1 AN ORDINANCE TO ESTABLISH CIP #3-062, "CIT - 2 UASI INTEROPERABLE COMMUNICATIONS 3 TECHNOLOGY EXPANSION" IN THE CAPITAL 4 BUDGET AND TO ACCEPT AND APPROPRIATE 5 GRANT FUNDS FOR THE IMPLEMENTATION OF 6 THE HAMPTON ROADS OVERLAY REGIONAL 7 INTEROPERABILITY NETWORK (ORION) 8 9 WHEREAS, the City of Virginia Beach has taken the lead in administering the 10 federal grant to expand and implement emergency communications between Hampton 11 Roads cities; and 12 13 WHEREAS, the City of Virginia Beach in coordination with the Commonwealth of 14 Virginia and the Hampton Roads Planning District Commission (HRPDC) in support of a 15 regional effort, will provide equipment and training for the regional communication 16 network. 17 18 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 19 VIRGINIA BEACH, VIRGINIA: 20 21 1. That CIP #3-062, "CIT-UASI Interoperable Communications Technology 22 Expansion," is hereby established in the Capital Improvement Program for the 23 expansion and implementation of the Hampton Roads Overlay regional interoperability 24 network (ORION); and 25 26 2. That $2,100,000 in grant funds are hereby accepted from the U.S. 27 Department of Homeland Security and appropriated, with federal revenues increased 28 accordingly, to CIP #3-062. Adopted by the Council of the City of Virginia Beach, Virginia, on the day of , 2012. Requires an affirmative vote by a majority of all of the members of City Council APPROVED AS TO CONTENT: Management Services CA12199 R-1 February 29, 2012 APPROVED AS TO LEGAL SUFFICIENCY: FZ��N �o - ss Ck X, m� a a ' z 0 CD N J u i x U Cl W W ii o L D a�U OcNo� Q N I LU Q M L C ' 4 3 °w CL a Q=f/1�� a UU ai 3Ncm OQD E- o O M(V z w U L Z i/� V) N LL W W 4-0 to g � a N � O O LL a` x FZ��N �o - ss Ck X, m� a a ' z 0 CD N J u i I W CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to authorize the Temporary Encroachment into a portion of the City right-of-way known as Mathews Green Road, for 56th Street Development Company, L.L.C. RACCTiur_ neTF- KAnrrh 11 2012 ■ Background: 56th Street Development Company, L.L.C. has requested permission to construct and maintain a 70' - 3" HDPE conduit casing pipe for a 1.5" irrigation line in a portion of the right-of-way known as Mathews Green Road. ■ Considerations: City Staff has reviewed the requested encroachment and has recommended approval of same, subject to certain conditions outlined in the Agreement. ■ Public Information: Advertisement of City Council Agenda ■ Alternatives: Approve the encroachment as presented, deny the encroachment, or add conditions as desired by Council. ■ Recommendations: Approve the request subject to the terms and conditions of the Agreement. ■ Attachments: IL Ordinance, Agreement, Exhibit, Pictures and Location Map Recommended Action: Approval of the ordinance. Submitting Department/Agency: Public Works/Real Estate, City Manager: S 1L 1 Requested by Department of Public Works 2 3 AN ORDINANCE TO AUTHORIZE 4 TEMPORARY ENCROACHMENTS INTO 5 A PORTION OF THE CITY RIGHT -OF - 6 WAY KNOWN AS MATHEWS GREEN 7 ROAD, FOR 56TH STREET 8 DEVELOPMENT COMPANY, L.L.C. 9 10 WHEREAS, 56th truct and Street Development Company, L.L.C. desires to cons 11 maintain a 70' - 3" HDPE conduit casing pipe for a 1.5" irrigation line within the City's 12 right-of-way known as Mathews Green Road, in the City of Virginia Beach, Virginia; and 13 14 WHEREAS, City Council is authorized pursuant to §§ 15.2-2009 and 15.2-2107, 15 Code of Virginia, 1950, as amended, to authorize temporary encroachments upon the 16 City's right-of-way subject to such terms and conditions as Council may prescribe. 17 18 NOW, THEREFORE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 19 VIRGINIA BEACH, VIRGINIA: 20 That pursuant to the authority and to the extent thereof contained in §§ 15.2- 21 2009 and 15.2-2107, Code of Virginia, 1950, as amended, 56th Street Development 22 Company, L.L.C., its assigns and successors in title are authorized to construct and 23 maintain a temporary encroachment for a 70' - 3" HDPE conduit casing pipe for a 1.5" 24 irrigation line within the City's right-of-way as shown on the two (2) sheet exhibit marked 25 Exhibit "A" and entitled: "EXHIBIT "A" ENCROACHMENT FOR 56TH STREET 26 DEVELOPMENT COMPANY, L.L.C. CROSSING OF MATHEWS GREEN ROAD 27 AUGUST 18, 2011, Scale: 1" = 200'," a copy of which is on file in the Department of 28 Public Works and to which reference is made for a more particular description; and 29 30 BE IT FURTHER ORDAINED that the temporary encroachments are expressly 31 subject to those terms, conditions and criteria contained in the Agreement between the 32 City of Virginia Beach and 56th Street Development Company, L.L.C. (the "Agreement"), 33 which is attached hereto and incorporated by reference; and 34 35 BE IT FURTHER ORDAINED that the City Manager or his authorized designee is 36 hereby authorized to execute the Agreement; and 37 38 BE IT FURTHER ORDAINED that this Ordinance shall not be in effect until such 39 time as 56th Street Development Company, L.L.C. and the City Manager or his 4o authorized designee execute the Agreement. 41 42 Adopted by the Council of the City of Virginia Beach, Virginia, on the day 43 of 12012. CA -12140 R-1 PREPARED: 2/23/12 APPROVED AS TO CONTENTS cv PUBLIC WORKS, REAL ESTATE�`� APPROVED AS TO LEGAL SUFFICIENCY AND FORM �T%R Ed 0'4 .. • , _ . PREPARED BY VIRGINIA BEACH CITY ATTORNEY'S OFFICE (BOX 31) EXEMPTED FROM RECORDATION TAXES UNDER SECTION 58.1-811(C) (4) THIS AGREEMENT, made this 15th day of February, 2012, by and between the CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation of the Commonwealth of Virginia, Grantor, "City", and 56TH STREET DEVELOPMENT COMPANY. L.L.C., a Virginia limited liability company, ITS ASSIGNS AND SUCCESSORS IN TITLE, "Grantee", even though more than one. WITNESSETH: WHEREAS, the Grantee is the owner of that certain lot, tract, or parcel of land designated and described as "Lots OS -B and OS -F", as shown on that certain plat entitled: "SUBDIVISION OF MATHEWS GREEN, PHASE 1 (M.B. 29, P. 6; INSTR. # 20070820001133510) VIRGINIA BEACH VIRGINIA SCALE: 1" = 60', 25 SEPTEMBER, 2007 SHEET 1 OF 9, prepared by KELLAM GERWITZ ENGINEERING - SURVEYING - PLANNING," and said plat is recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia as Instrument Number 20080627000758540, and being further designated, known, and described as vacant and unimproved property, Virginia Beach, Virginia 23456; WHEREAS, it is proposed by the Grantee to construct and maintain a 70'- 3" HDPE conduit casing pipe for a 1.5" irrigation line, the "Temporary Encroachment", in the City of Virginia Beach; and GPIN'S: (CITY RIGHT-OF-WAY — NO GPIN REQUIRED OR ASSIGNED) 2404-94-3762-0000; (Lot OS -B, Vacant — Unimproved Property) and 2404-94-5963-0000; (Lot OS -F, Vacant — Unimproved Property) WHEREAS, in constructing and maintaining the Temporary Encroachment, it is necessary that the Grantee encroach into a portion of an existing City right-of-way known as Mathews Green Road the "Encroachment Area"; and WHEREAS, the Grantee has requested that the City permit the Temporary Encroachment within the Encroachment Area. NOW, THEREFORE, for and in consideration of the premises and of the benefits accruing or to accrue to the Grantee and for the further consideration of One Dollar ($1.00), cash in hand paid to the City, receipt of which is hereby acknowledged, the City hereby grants to the Grantee permission to use the Encroachment Area for the purpose of constructing and maintaining the Temporary Encroachment. It is expressly understood and agreed that the Temporary Encroachment will be constructed and maintained in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach, and in accordance with the City's specifications and approval and is more particularly described as follows, to wit: A Temporary Encroachment into the Encroachment Area as shown on that certain exhibit plat entitled: "EXHIBIT "A" ENCROACHMENT FOR 56TH STREET DEVELOPMENT COMPANY, L.L.C. CROSSING OF MATHEWS GREEN ROAD SCALE: 1" = 200' AUGUST 18, 2011,"said exhibit plat consists of two (2) sheets, copies of which are attached hereto as Exhibit "A" and to which reference is made for a more particular description. Providing however, nothing herein shall prohibit the City from immediately removing, or ordering the Grantee to remove, all or any part of the Temporary Encroachment from the Encroachment Area in the event of an emergency or public necessity, and Grantee shall bear all costs and expenses of such removal. 2 It is further expressly understood and agreed that the Temporary Encroachment herein authorized terminates upon notice by the City to the Grantee, and that within thirty (30) days after the notice is given, the Temporary Encroachment must be removed from the Encroachment Area by the Grantee; and that the Grantee will bear all costs and expenses of such removal. It is further expressly understood and agreed that the City shall have the right to repair or remove the Temporary Encroachment (specifically private sewer force main and appurtenances) in the event of an emergency or public necessity or public safety, and Grantee shall bear all costs and expenses of such repair and removal. It is further expressly understood and agreed that the Grantee shall indemnify, hold harmless, and defend the City, its agents and employees, from and against all claims, damages, losses and expenses, including reasonable attorney's fees, in case it shall be necessary to file or defend an action arising out of the construction, location or existence of the Temporary Encroachment. It is further expressly understood and agreed that nothing herein contained shall be construed to enlarge the permission and authority to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified herein, nor to permit the maintenance and construction of any encroachment by anyone other than the Grantee. It is further expressly understood and agreed that the Grantee agrees to maintain the Temporary Encroachment so as not to become unsightly or a hazard. It is further expressly understood and agreed that the Grantee must submit and have approved a traffic control plan before commencing work in the Encroachment Area. 3 It is further expressly understood and agreed that the Grantee agrees that no open cut of the public roadway will be allowed except under extreme circumstances. Requests for exceptions must be submitted to the Highway Operations Division, Department of Public Works, for final approval. It is further expressly understood and agreed that the Grantee must obtain a permit from the Department of Planning prior to commencing any construction within the Encroachment Area (the "Permit"). It is further expressly understood and agreed that prior to issuance of a right-of-way/utility easement Permit, the Grantee must post a bond or other security, in the amount of two times their engineer's cost estimate, to the Department of Planning to guard against damage to City property or facilities during construction. It is further expressly understood and agreed that the Grantee must obtain and keep in force all-risk property insurance and general liability or such insurance as is deemed necessary by the City, and all insurance policies must name the City as additional named insured or loss payee, as applicable. The Grantee also agrees to carry comprehensive general liability insurance in an amount not less than $500,000.00, combined single limits of such insurance policy or policies. The Grantee will provide endorsements providing at least thirty (30) days written notice to the City prior to the cancellation or termination of, or material change to, any of the insurance policies. The Grantee assumes all responsibilities and liabilities, vested or contingent, with relation to the construction, location, and/or existence of the Temporary Encroachment. It is further expressly understood and agreed that the Grantee agrees to jack or bore proposed water lines under driveways. 11 It is further expressly understood and agreed that the Grantee must submit for review and approval, a survey of the Encroachment Area, certified by a registered professional engineer or a licensed land surveyor, and/or "as built" plans of the Temporary Encroachment sealed by a registered professional engineer, if required by either the City Engineer's Office or the Engineering Division of the Department of Public Utilities. It is further expressly understood and agreed that the City, upon revocation of such authority and permission so granted, may remove the Temporary Encroachment and charge the cost thereof to the Grantee, and collect the cost in any manner provided by law for the collection of local or state taxes; may require the Grantee to remove the Temporary Encroachment; and pending such removal, the City may charge the Grantee for the use of the Encroachment Area, the equivalent of what would be the real property tax upon the land so occupied if it were owned by the Grantee; and if such removal shall not be made within the time ordered hereinabove by this Agreement, the City may impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that the Temporary Encroachment is allowed to continue thereafter, and may collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. IN WITNESS WHEREOF, the said 56th Street Development Company L.L.C., a Virginia limited liability company, has caused this Agreement to be executed on its behalf by Robert S. Kellam, Manager / Managing Member of 56th Street Development Company L.L.C., a Virginia limited liability company, with due authority to bind said limited liability company. Further, that the City of Virginia Beach has caused 5 this Agreement to be executed in its name and on its behalf by its City Manager and its seal be hereunto affixed and attested by its City Clerk. (THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK) R CITY OF VIRGINIA BEACH By (SEAL) City Manager/Authorized Designee of the City Manager STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: The foregoing instrument was acknowledged before me this day of , 2012, by , CITY MANAGER/AUTHORIZED DESIGNEE OF THE CITY MANAGER OF THE CITY OF VIRGINIA BEACH, VIRGINIA, on its behalf. He/She is personally known to me. Notary Public Notary Registration Number: My Commission Expires: (SEAL) ATTEST: City Clerk/Authorized Designee of the City Clerk STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to -wit: (SEAL) The foregoing instrument was acknowledged before me this day of , 2012, by , CITY CLERK/AUTHORIZED DESIGNEE OF THE CITY CLERK OF THE CITY OF VIRGINIA BEACH, VIRGINIA, on its behalf. She is personally known to me. Notary Registration Number: My Commission Expires: 7 Notary Public (SEAL) 56th Street Development Company, L.L.C., a Virginia limited liability company ByZA (SEAL) Robert S. Kellam, Manger / Managing Member STATE OF V CITY'S OF , to -wit: The foregoing instrument was acknowledged before me this of (-eh- , 2012, by Robert S. Kellam, Manager / Managing Member of 56th Street Development Company, L.L.C., a Virginia limited liability company. EAL) Notary Public C Notary Registration Number: -3qO 6 Z3 - My 3My Commission Expires: t -t Yl�-� 3©/ 012 APPROVED AS TO CONTENTS k SIGNATURE�- DEPARTMENT APPROVED AS TO LEGAL SUFFICIENCY AND FORM A T T ITY ATTORNEY �P4 VETERINARY WAY - - - - - / OSD \ `-' - C \ 35 1 36 \ 4 \ 37 PS -1 \ 13 \ 3 \ 32 �� 14 \ \i ' \ �31 OS -E \ i 10 16 WORK AREA, 39 9 �o ' Ty / 40 OSF 29 �iI / 41 / \ \ \ / 8 28 �� \ / � 17 27 OS -8 18 / 26 Q 42 THREE OAKS__ \ 199 43 7 _ 25 - / � 20 \ f�24 44 / � 6 \ \ 2., I I 23 \ 5 I I \v/ \ \ 4 / GRAPHIC SCALE 50 0 5.0510 200 400 I ' FEET' 1 _ 1 INCH = 200 FEET EXHIBIT "A" ENCROACHMENT FOR 56 T"STREET DEVELOPMENT COMPANY, L.L.C. CROSSING OF MATHEWS GREEN ROAD SHEET 1 OF 2 AUGUST 18, 2011 ELLAM ERWITZ ENGINEERING - SURVEYING - PLANNING 500 CENTRAL DRIVE - SUITE 113 - VIRGINIA BEACIL VA 23454 (757) 340-0829- FAX (757) 340-1603 LOT 8... 25' PUBLIC DRAINAGE EASEMENT 25.00 `11 111.1 �1111111i11iIIl I, 1 IEx-421RCP li l� iU.00, 17 00 17 05. 3" HDPE CONDUIT IPOSED sIR�tIGAbON UNE -r�'t{/1l1 DRAINAGE EASEMENT N 3 � °0 00 :x — 42" RCPwiiwm • i, MATHEWS GREEN ROAD HORIZONTAL SCALE zo o to zo 4o so FEET 1 INCH= 20 FEET VERTICAL SCALE Ip 10 z0 40 FEET R/W 1 INCH= 10 FEET R/W 10 10 14 12 MATHEWS GREEN ROAD 12 10 10 8—EX 8" WATER UNE —�� S —70'-3" HDPE CASING PIPE FOR 1.5" IRRIGATION UNE 4 T '—EX 8" SEWER LINE (-2) (-2) EXHIBIT "AI' ENCROACHMENT FOR 56 T"STREET DEVELOPMENT COMPANY, L.L.C. CROSSING OF MATHEWS GREEN ROAD SHEET 2 OF 2 /, ;. 11111111111 ;1;11111111 ili�illlll�� IIIIII11111. lillillililili• IIII11111111 �ilillillillilll, 11111111111 III1111111111 11111111111 rill 111111111111 .11 it illill IIIIIIJ� TWO FOOT VERTICAL SEPARATION FROM BOTH THE EXISTING WATER AND SEWER LINES IS REQUIRED. 9ERWITZ LLAM ENGINEERING - SURVEYING - PLANNING 500 CENTRAL DRIVE - SUITE 113 - VIRGINIA BEACH• VA 23454 (757) 340-0828 - FAX (757) 340-1603 AkLb� 77.4 W—.1r.glao 4Mhl :7N41 M 10 4_0 ✓'r _mac � Sl r .e :1 ti CITY OF VIRGINIA BEACH AGENDA ITEM ITEMS: (1) An Ordinance Authorizing the City Manager to Execute an Agreement of Purchase and Sale Between the Trust for Public Land and the City, for the Acquisition of Property Known as Pleasure House Point (2) An Ordinance to Establish CIP #4-518, "Pleasure House Point Acquisition," and to Accept and Appropriate Various Grant Funds for this Project (3) A Resolution of the City of Virginia Beach, Virginia, Providing for the Issuance and Sale of a General Obligation Bond in the Principal Amount Not to Exceed $6,000,000 to the Virginia Water Facilities Revolving Fund for the Pleasure House Point Project, and Providing for the Form, Details and Payment Thereof MEETING DATE: March 13, 2012 ■ Background: Redus VA Housing, LLC, a Virginia limited liability company and wholly owned subsidiary of Wells Fargo, N.A. ("Wells Fargo") is the owner of 122 acres, more or less, commonly known as Pleasure House Point (the "Property"). The City has prioritized preserving the Property as a natural area for the benefit of the public for more than ten years, as identified in the 2000 and 2008 Virginia Beach Outdoors Plan. In furtherance of that goal, on August 22, 2011, The Trust for Public Land, a non-profit California public benefit corporation ("TPL"), Chesapeake Bay Foundation, a Maryland corporation, ("CBF"), and the City entered into a Memorandum of Understanding (the "MOU") setting forth the parties' intention to work together for the purpose of acquisition of the Property by the City and CBF, pursuant to an Ordinance adopted by City Council on August 9, 2011 (ORD -3195C). Under the terms of the MOU, TPL would purchase the Property from Wells Fargo. Thereafter, the City would purchase the majority of the Property consisting of 112 acres (the "City Parcels") from TPL, and CBF would acquire a 10 -acre portion of the Property from TPL to construct an environmental education center (the "CBF Parcel"). TPL entered into a contract in December 2011 to purchase the Property from Wells Fargo for $13,000,000. The City now desires to enter into a Purchase Agreement with TPL to acquire the City Parcels from TPL for park use, open space, public natural area, passive recreation, wetlands mitigation, water access, environmental education, and oyster restoration and other public purposes. The terms for the City's purchase are summarized in a Summary of Terms attached to the Ordinance. ■ Considerations: The total purchase price for the City Parcels by the City is $12,000,000 to be funded as follows: $4,000,000 to be funded through the Open Space Program; $1,000,000 to be funded by a grant from U.S. Fish and Wildlife Services/National Coastal Wetlands Program Grant; $500,000 to be funded by a grant from the Virginia Land Conservation Foundation; $500,000 will be directly contributed by TPL, representing a gift from Dominion Foundation; and $6,000,000 to be funded by a low-interest (.25%) loan from the Virginia Clean Water Revolving Loan Program. In addition to agreeing to purchase the City Parcels, the City will commit to purchase the CBF Parcel in the event CBF is unable to get necessary zoning approvals for its environmental center to be constructed on the CBF Parcel. The acquisition of this 10 - acre parcel, if it occurs, will be funded by Open Space funding of $1,000,000. In addition to the ordinance providing for the purchase of the property, this package includes a budget ordinance and a resolution. The budget ordinance establishes Capital Project #4-518, "Pleasure House Point Acquisition," in the Capital Improvement Program, and it appropriates the grant from the U.S. Fish and Wildlife Services/National Coastal Wetlands Project Grant and from the Virginia Land Conservation Foundation. The resolution provides for the issuance and sale of a general obligation bond for the Virginia Clean Water Revolving Loan Program. As noted above, this bond will be for the principal amount of not to exceed $6,000,000, and it will have an annual rate of .25%. The City's responsibilities related to this bond are further set forth in the Financing Agreement, which is incorporated by reference and attached. ■ Public Information: Public Information will be provided through the normal process of advertising the Council's agenda. ■ Attachments: Ordinances (2) Resolution Summary of Terms Location Map Financing Agreement Recommended Action: Approval I "I in Department/Agency: Parcreationk e Submitting_ , City Manage .rs �_:Z�6m 1 AN ORDINANCE AUTHORIZING THE CITY 2 MANAGER TO EXECUTE AN AGREEMENT OF 3 PURCHASE AND SALE BETWEEN THE TRUST FOR 4 PUBLIC LAND AND THE CITY, FOR THE 5 ACQUISITION OF THE PROPERTY KNOWN AS 6 PLEASURE HOUSE POINT. 7 8 WHEREAS, Redus VA Housing, LLC, a Virginia limited liability company and 9 wholly owned subsidiary of Wells Fargo, N.A. ("Wells Fargo") is the owner of 122 acres, 10 more or less, commonly known as Pleasure House Point (the "Property"), which 11 Property is more particularly described on the Summary of Terms attached hereto as 12 Exhibit A and made a part hereof; 13 14 WHEREAS, the City has prioritized preserving the Property as a natural area for 15 the benefit of the public for more than ten years, as identified in the 2000 and 2008 16 Virginia Beach Outdoors Plan; 17 18 WHEREAS, on August 22, 2011, The Trust for Public Land, a non-profit 19 California public benefit corporation ("TPL"), Chesapeake Bay Foundation, a Maryland 20 corporation ("CBF"), and the City entered into a Memorandum of Understanding (the 21 "MOU") setting forth the parties' intention to work together for the purpose of acquisition 22 of the Property by the City and CBF, pursuant to an Ordinance adopted by City Council 23 on August 9, 2011 (ORD -3195C); 24 25 WHEREAS, under the terms of the MOU, TPL would purchase the Property from 26 Wells Fargo and, thereafter, the City would purchase the majority of the Property, 27 consisting of 112 acres (the "City Parcels"), from TPL, and CBF would acquire a 10 -acre 28 portion of the Property from TPL to construct an environmental education center (the 29 "CBF Parcel"); 30 31 WHEREAS, in December 2011, TPL executed a contract to purchase the 32 Property from Wells Fargo for $13,000,000; 33 34 WHEREAS, the City now desires to enter into a Purchase and Sale Agreement 35 (the "Agreement") with TPL to acquire the City Parcels from TPL for park use, open 36 space, public natural area, passive recreation, wetlands mitigation, water access, 37 environmental education, and oyster restoration and other public purposes; 38 39 WHEREAS, CBF will acquire the 10 -acre CBF Parcel for an environmental 40 center, pursuant to a separate agreement with TPL; 41 42 WHEREAS, in addition to agreeing to purchase the City Parcels, the City will 43 commit to purchase the CBF Parcel in the event CBF is unable to get necessary zoning 44 approvals for its planned environmental center to be constructed on the CBF Parcel, 45 which acquisition, if it occurs, will be funded by Open Space funding of $1,000,000; and 46 WHEREAS, the terms of the Agreement between the City and TPL are set forth 47 in the attached Summary of Terms. 48 49 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 50 VIRGINIA BEACH, VIRGINIA: 51 52 1. That the City Manager or his designee is hereby authorized to execute an 53 Agreement of Purchase and Sale with The Trust for Public Land for: 54 a. the acquisition of the City Parcels, more particularly identified on the 55 Summary of Terms attached hereto as Exhibit A and made a part 56 hereof (the "Summary of Terms"), and 57 b. the acquisition of the CBF Parcel, more particularly identified on the 58 Summary of Terms, in the event CBF does not acquire the CBF 59 Parcel, 60 all substantially in accordance with the Summary of Terms, and such other 61 terms, conditions or modifications as may be acceptable to the City Manager 62 and in a form deemed satisfactory by the City Attorney. 63 64 2. That the City Manager or his designee and the City Attorney are hereby 65 authorized to execute any instruments or documents necessary and 66 appropriate to implement the acquisition of the City Parcels and the CBF 67 Parcel so long as such documents are substantially in accordance with the 68 Summary of Terms, and such other terms, conditions or modifications as may 69 be acceptable to the City Manager and in a form deemed satisfactory by the 70 City Attorney. 71 72 Adopted by the Council of the City of Virginia Beach, Virginia on the day 73 of 12012. Approved as to Content: Approved as to Legal Sufficiency: Prks & Recreation City At r Office ---,� CA12138 \\vbgov.com\dfs I \applications\citylawprod,cycom32\wpdocs\d024\p0I 1 \00003295.doc R-1 2/14/12 2 EXHIBIT A SUMMARY OF TERMS Between the City of Virginia Beach and The Trust for Public Land Buyer: City of Virginia Beach ("City") Seller: The Trust for Public Land, a non-profit California public benefit corporation ("TPL") Property: 112 of the 122 acres, more or less, commonly known as Pleasure House Point, GPINs: 1489-47-1735; 1489-47-1881; 1489-47-2725; 1489-47- 2788; 1489-47-3733; 1489-47-3795; 1489-47-4751; 1489-47-5704; 1489- 47-5750; 1489-47-6704; 1489-47-6669; 1489-47-7705; 1489-47-7679; 1489-47-8715; 1489-47-8667; 1489-47-9713; 1489-47-9655; 1489-57- 0711; 1489-57-0654; 1489-57-1628; 1489-57-1671; 1489-57-2628; 1489- 57-2661; 1489-57-3616; 1489-57-3558; 1489-57-4614; 1489-57-4546; 1489-57-5601; 1489-57-5544; 1489-57-5598; 1489-57-6532; 1489-57- 6596; 1489-57-7541; 1489-57-8502; 1489-57-8570; 1489-57-6732; 1489- 28-1544; 1489-28-3534; 1489-47-2243; 1489-57-1517; 1489-57-9518; 1489-67-1436 (the "Property") The Property will be resubdivided into five (5) parcels, as shown on that certain exhibit plat entitled "Preliminary Subdivision Plat Pleasure House Point Property" prepared by WPL (the "Exhibit Plat") a copy of which is on file in the Department of Parks and Recreation. The City will purchase those certain parcels identified as "Parcel I", "Parcel 2", "Parcel 4", and "Parcel 5" on the Exhibit Plat, together comprising 112 acres, more or less (collectively, the "City Parcels"). CBF Parcel: The Chesapeake Bay Foundation ("CBF"), under separate agreement, will purchase the remaining 10 acres +/- of the Property, identified and described as "Parcel 3" on the Exhibit Plat (the "CBF Parcel") for the purpose of constructing an environmental center and to conduct environmental education on and from the site. The CBF Parcel will be subject to a conservation easement. The City will acquire the CBF Parcel from TPL (Parcel 3 on the Exhibit Plat) if CBF does not get its needed zoning approvals for its environmental education center on or before March 31, 2013. Easements: City will purchase the City Parcels, together with an easement or deed dedication, or other permanent dedication to the City for public access and use along the entire shoreline of Parcel 3, for all reasonable shoreline public access and use, including but not limited to wading, fishing, 1 walking, jogging, bird -watching, studying nature and wildlife, and similar activities, subject to reasonable controls by CBF to prevent interference with CBF's use of the CBF Parcel and CBF's environmental education activities. Parcel 1 will be conveyed subject to a comprehensive conservation easement, which will be required to be placed on the property in order to receive a low-interest loan and grant funding to be used to purchase Parcel 1. In addition, Parcel 1 will be conveyed to the City subject to the following easements for the benefit of CBF: a. Pier Access Easement: For pedestrian ingress and egress. b. Pier Easement: For construction, maintenance and use of a pier, boat docking platform, dock boxes, canoe/kayak boat house and/or canoe/kayak racks. c. Beach Access Easement: For use related to the conduct of field education classes. The Pier Easement and Pier Access Easement will be established so long as they do not interfere with City's ability to obtain desired grant or state loan funding. Parcel 2 will be conveyed to the City subject to the following easements that will be for the benefit of the CBF Parcel: a. Access Drive Easement: To provide pedestrian and vehicular ingress and egress to and from the CBF Parcel. b. Utilities Easement: to the extent necessary, for the installation and maintenance of connections to public utilities. Purchase Price for the City Parcels: Twelve Million and 00/100 Dollars ($12,000,000). TPL will bring $500,000 to closing/escrow as a contribution toward the purchase price, which amount represents a gift from Dominion Foundation towards the purchase price of the Property. Closing: Closing on the City Parcels to be held on or before July 10, 2012. 2 Post -Closing Right of Purchase and Right of First Refusal: In the event that TPL conveys the CBF Property to CBF, the deed of conveyance shall contain a right of first refusal and right of purchase in favor of Buyer. Pursuant to said deed, the City will have a right to purchase the CBF Parcel for $1 million in the event CBF has not commenced construction of its planned environmental center on the CBF Parcel within 10 years or substantially completed construction within 12 years from the date CBF acquires the CBF Parcel. The City will have a right of first refusal to purchase the CBF Parcel. CBF will give the City notice of any letter of intent and/or offer it intends to accept. City will have 45 days to notify CBF if it intends to exercise its right of first refusal. Signage: The City will agree to acknowledge TPL and Dominion Foundation on any sign erected on the City Parcels to recognize the funding sources used by the City to acquire the property. 1 AN ORDINANCE TO ESTABLISH CIP #4-518, "PLEASURE 2 HOUSE POINT ACQUISITION" AND TO ACCEPT AND 3 APPROPRIATE VARIOUS GRANT FUNDS AND 4 TRANSFER FUNDS FROM CIP #4-004, "OPEN SPACE 5 SITE ACQUISITION — PHASE I," FOR THIS PROJECT 6 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 7 VIRGINIA, THAT: 8 9 10 11 12 13 14 15 16 17 18 19 20 1. CIP #4-518, "Pleasure House Point Acquisition," is hereby established in the Capital Improvement Program; 2. $1,000,000 is hereby accepted from the U.S. Fish and Wildlife Services/National Coastal Wetlands Program Grant and appropriated, with estimated federal revenue increased accordingly, to CIP #4-518; 3. $500,000 is hereby accepted from the Virginia Land Conservation Foundation and appropriated, with estimated state revenues increased accordingly, to CIP #4-518; and 4. $4,000,000 is hereby transferred from CIP #4-004, "Open Space Site Acquisition — Phase I," to CIP #4-518. Adopted by the Council of the City of Virginia Beach, Virginia on the day of 2012. Requires an affirmative vote of a majority of all of the members of City Council. APPROVED AS TO CONTENT: r �.- A Management Services CA12192 R-2 March 1, 2012 APPROVED AS TO LEGAL SUFFICIENCY: RESOLUTION OF THE CITY OF VIRGINIA BEACH, VIRGINIA, PROVIDING FOR THE ISSUANCE AND SALE OF A GENERAL OBLIGATION BOND IN THE PRINCIPAL AMOUNT NOT TO EXCEED $6,000,000 TO THE VIRGINIA RESOURCES AUTHORITY AS THE ADMINISTRATOR OF THE VIRGINIA WATER FACILITIES REVOLVING FUND FOR THE PLEASURE HOUSE POINT PROJECT, AND PROVIDING FOR THE FORM, DETAILS AND PAYMENT THEREOF The issuance of $65,500,000 of general obligation bonds of the City was authorized by an ordinance adopted by the City Council of the City of Virginia Beach, Virginia (the "City Council") on May 10, 2011, without being submitted to the qualified voters of the City, to finance various public improvements, including schools, roadways, coastal projects, economic and tourism projects, building and parks and recreation projects, up to $40,238,112 of which bonds have been authorized to be issued and sold by resolution of the City Council. The City has applied to the Virginia Water Facilities Revolving Fund (the "Revolving Fund") through the Virginia Resources Authority ("VRA") for a loan in amount up to $8,000,000 to purchase land for a project known within the City as the Pleasure House Point land conservation project (the "Project"), which loan has been approved on behalf of the Revolving Fund by VRA as part of the Lynnhaven Oyster Restoration and Estuary Protection Project. VRA has required that the City evidence the loan through the issuance of a City's general obligation bond to be issued in accordance with the terms of a Financing Agreement to be dated as of a date specified by VRA, between the VRA and the City (the "Financing Agreement"), the form of which has been presented to this meeting. The City Council has determined it is in the City's best interest to issue and sell up to $6,000,000 of the general obligation debt authorized on May 10, 2011 for the Project. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY: 1. Issuance of Bond. There shall be issued, pursuant to the Constitution and statutes of the Commonwealth of Virginia, including the City Charter (Chapter 147 of the Acts of the General Assembly of 1962, as amended) and the Public Finance Act of 1991 (Chapter 26, Title 15.2, Code of Virginia of 1950, as amended), a general obligation bond of the City in the maximum principal amount of $6,000,000 (the "Bond"). The proceeds of the Bond will be used to pay or reimburse the costs of acquiring the Project and may also be used to pay certain costs of issuance of the Bond. 2. Authorization of Financing Agreement. The form of the Financing Agreement submitted to this meeting is hereby approved. The City Manager is authorized to execute the Financing Agreement in substantially such form, with such completions, omissions, insertions and changes not inconsistent with this Resolution as may be approved by such official, whose approval shall be evidenced conclusively by the execution and delivery thereof. The issuance and sale of the Bond to VRA, and application of the proceeds thereof, shall be upon the terms 4825-09244686.1 and conditions of the Financing Agreement, subject to paragraph 3 below. All capitalized terms used but not otherwise defined herein shall have the same meaning as set forth in the Financing Agreement. 3. Bond Details. The Bond shall be designated a "General Obligation Bond," containing the series designation 2012 or such other designation as may be determined by the City Manager, shall be in registered form in the manner required by VRA and determined by the City Manager and shall be numbered R-1. The Bond may also be issued in more than one series if so determined by the City Manger. The City Council authorizes the issuance and sale of the Bond on terms as shall be satisfactory to the City Manager; provided, however, that the Bond shall (i) be in the principal amount equal to the principal amount of the loan from VRA not to exceed the amount set forth in paragraph 1 above; (ii) mature no later than 11 years after the date of initial delivery; (iii) bear interest at an annual rate not to exceed 0.25% (exclusive of late payments and Additional Payments, if any, under the Financing Agreement); and (iv) be subject to optional redemption upon the terms set forth in the Financing Agreement. Subject to the preceding terms, the City Council further authorizes the City Manager to establish the amortization schedule (including the principal installment dates and amounts) for the Bond in such manner as the City Manager shall determine to be in the best interest of the City. The actions of the City Manager in determining the final terms of the Bond shall be conclusive, and no further action shall be necessary on the part of the City. The principal of and premium, if any, and interest on the Bond shall be payable in lawful money of the United States of America. 4. Payment Provisions. The principal of and premium, if any, and interest on the Bond shall be payable as set forth in the Bond and the Financing Agreement. As set forth in the Financing Agreement, the City agrees to pay from legally available funds the Additional Payments. 5. Execution and Authentication. The Bond shall be signed by the manual or facsimile signature of the Mayor or Vice -Mayor, shall be countersigned by the manual or facsimile signature of the City Clerk or Deputy Clerk, and the City's seal shall be affixed thereto or a facsimile thereof printed thereon; provided, that if both of such signatures are facsimiles, the Bond shall not be valid until it has been authenticated by the manual signature of the City Treasurer, as Registrar, or an authorized officer or employee of any bank or trust company serving as successor Registrar and the date of authentication noted thereon. 6. Bond Form. The Bond shall be in substantially the form attached to this Resolution as Exhibit A, with such completions, omissions, insertions and changes not inconsistent with this Resolution as may be approved by the officers signing the Bond, whose approval shall be evidenced conclusively by the execution and delivery of the Bond. 7. Pledge of Full Faith and Credit. The full faith and credit of the City are hereby irrevocably pledged for the payment of principal of and premium, if any, and interest on the Bond. Unless other funds are lawfully available and appropriated for timely payment of the Bond, the City Council shall levy and collect an annual ad valorem tax, over and above all other taxes authorized or limited by law and without limitation as to rate or amount, on all locally taxable property in the City sufficient to pay when due the principal of and premium, if any, and interest on the Bond. 2 4825-0924-4686.1 8. Registration, Transfer and Owners of Bond. The City Treasurer is appointed paying agent and registrar for the Bond (the "Registrar"). The City may appoint a qualified bank or trust company as successor paying agent and registrar of the Bond. The Registrar shall maintain registration books for the registration and registration of transfers of the Bond. Upon presentation and surrender of any Bond at the office of the Registrar, or at its designated corporate trust office if the Registrar is a bank or trust company, together with an assignment duly executed by the registered owner or his 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, if required by Section 5, and shall deliver in exchange, a new Bond or Bond having an equal aggregate principal amount, in authorized denominations, of the same form and maturity, bearing interest at the same rate and registered in the name as requested by the then registered owner thereof or its duly authorized attorney or legal representative. Any such transfer or exchange shall be at the expense of the City, except that the Registrar may charge the person requesting such transfer or 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 or entity 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 or entity shown as owner on the registration books as of the Record Date set forth in the Bond. 9. Mutilated, Lost or Destroyed Bond. If the Bond has been mutilated, lost or destroyed, the City shall execute and deliver a new Bond of like date and tenor in exchange and substitution for, and upon cancellation of, such mutilated Bond or in lieu of and in substitution for such lost or destroyed Bond; provided, however, that the City shall so execute and deliver only if the registered owner has paid the reasonable expenses and charges of the City in connection therewith and, in the case of a lost or destroyed Bond, (a) has filed with the City evidence satisfactory to the City that such Bond was lost or destroyed and (b) has furnished to the City satisfactory indemnity. 10. Preparation and Delivery of Bond. The officers of the City are authorized and directed to take all proper steps to have the Bond prepared and executed in accordance with their terms and to deliver them to VRA as the purchaser thereof upon receipt of the loan proceeds from VRA as set forth in the Financing Agreement. 11. Program Compliance Documentation. Such officers of the City as may be requested are authorized and directed to execute and deliver any documentation necessary to establish that the proceeds of the Bond are intended to be used in compliance with the requirements of VRA and the Revolving Fund. 12. Limitation on Private Use. The City covenants that it shall not permit the proceeds of the Bond or the facilities financed with the proceeds of the Bond to be used in any manner that would result in (a) 5% or more of such proceeds or the facilities financed with such proceeds being used in a trade or business carried on by any person other than a governmental unit, as provided in Section 141(b) of the Code, (b) 5% or more of such proceeds or the facilities financed 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 (c) 5% or 3 4825-0924-4686.1 more of such proceeds being used directly or indirectly to make or finance loans to any persons other than a governmental unit, as provided in Section 141(c) of the Code; provided, however, that if the City receives an opinion of nationally recognized bond counsel that any such covenants need not be complied with to prevent the interest on tax-exempt governmental obligations from being includable in the gross income for federal income tax purposes of the registered owners thereof under existing law, the City need not comply with such covenants. 13. Investment Authorization. The City Council hereby authorizes the Director of Finance to direct the City Treasurer to utilize the State Non -Arbitrage Program of the Commonwealth of Virginia ("SNAP") in connection with the investment of the proceeds of the Bond, if the City Manager and the Director of Finance determine that the utilization of SNAP is in the best interest of the City. The City Council acknowledges that the Treasury Board of the Commonwealth of Virginia is not, and shall not be, in any way liable to the City in connection with SNAP, except as otherwise provided in the SNAP Contract. 14. Other Actions. All other actions of officials of the City in conformity with the purposes and intent of this Resolution and in furtherance of the issuance and sale of the Bond are ratified, approved and confirmed. The officials of the City are authorized and directed to execute and deliver all certificates and other instruments considered necessary or desirable in connection with the issuance, sale and delivery of the Bond pursuant to this Resolution and the Financing Agreement. 15. Repeal of Conflicting Resolutions. All resolutions or parts of resolutions in conflict herewith are repealed. 16. Effective Date. This Resolution shall take effect immediately. El 4825-09244686.1 REGISTERED No. R - UNITED STATES OF AMERICA COMMONWEALTH OF VIRGINIA CITY OF VIRGINIA BEACH General Obligation Bond Exhibit A — Form of Bond REGISTERED (Pleasure House Point Project) Series 2012 INTEREST RATE MATURITY DATE DATED DATE CUSIP _,2012 N/A REGISTERED OWNER: PRINCIPAL AMOUNT: The City of Virginia Beach, Virginia (the "City"), a political subdivision of the Commonwealth of Virginia, for value received, acknowledges itself in debt and promises to pay to the Virginia Resources Authority ("VRA") as the administrator of the Virginia Water Facilities Revolving Fund, or its registered assigns or legal representative, solely from the sources hereinafter described and pledged to the payment of this bond the principal sum of SIX MILLION DOLLARS ($6,000,000) or such lesser amount as may have been advanced under the Financing Agreement (herein defined). Principal of this bond shall be payable in semi-annual installments in the amounts and on the dates set forth in Schedule I attached hereto. Interest on this bond shall be payable on each and , commencing , , computed on the basis of a 360 -day year of twelve 30 -day months as forth in Schedule I hereto. If any installment of principal of and interest on this bond is not paid to the registered owner of this bond within ten days after its due date, the City shall pay to such registered owner a late payment charge in an amount equal to five percent (5%) of the overdue installment. Subject to the provisions of the Financing Agreement dated as of (the "Financing Agreement"), between VRA and the City, so long as this bond is held by VRA or its registered assigns or legal representative, interest is payable by check or draft mailed to the registered owner of this bond at the address that appears on the day of the month preceding each interest payment date (the "Record Date") on the registration books kept by Treasurer of the City, who has been appointed registrar and paying agent, or any successor bank or trust company (the "Registrar"). Principal of and premium, if any, and interest on this bond shall be payable in A-1 4825-09244686.1 lawful money of the United States of America. In case any payment date on this bond shall not be a Business Day (as defined below), then payment of principal, premium, if any, and interest need not be made on such date, but may be made on the next succeeding Business Day, and, if made on such next succeeding Business Day, no additional interest shall accrue for the period after such payment date. "Business Day" means any Monday, Tuesday, Wednesday, Thursday or Friday on which commercial banking institutions generally are open for business in New York and Virginia. This bond has been authorized by a resolution adopted by the City Council of the City on March _, 2012 (the "Resolution"), and is issued pursuant to the Constitution and statutes of the Commonwealth of Virginia, including the City Charter (Chapter 147 of the Acts of the General Assembly of 1962, as amended) and the Public Finance Act of 1991 (Chapter 26, Title 15.2, Code of Virginia of 1950, as amended) and the Financing Agreement. Proceeds of this bond will be used to provide funds to finance the Project as defined in the Resolution and may also be used to pay all or a portion of the issuance and financing costs incurred in issuing this bond. The full faith and credit of the City are irrevocably pledged for the payment of principal of and premium, if any, and interest on this bond and the performance of the City's obligations under the Financing Agreement. Unless other funds are lawfully available and appropriated for timely payment of this bond, the City Council of the City shall levy and collect an annual ad valorem tax, over and above all other taxes authorized or limited by law and without limitation as to rate or amount, on all locally taxable property in the City sufficient to pay when due the principal of and premium, if any, and interest on this bond. The City agrees to pay from legally available funds the Additional Payments as defined in the Financing Agreement. This bond may be redeemed at the option of the City upon the terms set forth in the Financing Agreement. This bond is issuable as a fully registered bond. Upon surrender of this bond at the Registrar's office, together with an assignment duly executed by the registered owner or such owner's 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 Resolution, having an equal aggregate principal amount, in authorized denominations, of the same series, form and maturity, bearing interest at the same rates and in the same manner, and registered in such names as requested by the then registered owner of this bond or such owner's duly authorized attorney or legal representative. Any such exchange shall be at the City's expense, 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 to it. The Registrar shall treat the registered owner of this bond 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 day of the month preceding each interest payment date. I- J 4825-0924-4686.1 All acts, conditions and things required by the Constitution and statutes of the Commonwealth of Virginia to happen, exist or be performed precedent to and in the issuance of this bond have happened, exist and have been performed, and this bond, together with all other indebtedness of the City, is within every debt and other limitation prescribed by the Constitution and statutes of the Commonwealth of Virginia. 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 Mayor, City of Virginia Beach, Virginia A-3 4825-0924-4686.1 ASSIGNMENT FOR VALUE RECEIVED the undersigned sell(s), assign(s) and transfer(s) unto (Please print or type name and address, including postal 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. 4825-0924-4686.1 (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. SCHEDULEITO CITY OF VIRGINIA BEACH, VIRGINIA GENERAL OBLIGATION BOND (PLEASURE HOUSE POINT PROJECT) SERIES 2012 Principal Principal Principal Installment Installment Installment Number Amount Due Date A-5 4825-09244686.1 Interest Rate Requires an affirmative vote by a majority of the members of the City Council. Adopted by the City Council of the City of Virginia Beach, Virginia, this day of March, 2012. APPROVED AS TO CONTENT: QA&&1'0Q"A't Finance Department 4825-0924-4686.1 APPROVED AS TO LEGAL SUFFICIENCY: Cjty-10Office CERTIFICATE The undersigned Clerk of the City Council of the City of Virginia Beach, Virginia (the "City Council"), certifies that: 1. A meeting of the City Council was held on March —, 2012, at the time and place established and noticed by the City Council, at which the members of the City Council were present or absent as noted below. The foregoing Resolution was adopted by a majority of the members of the City Council, by a roll call vote, the ayes and nays being recorded in the minutes of the meeting as shown below: William D. Sessoms, Jr., Mayor Louis R. Jones, Vice Mayor Glenn R. Davis Bill R. DeSteph Harry E. Diezel Robert M. Dyer Barbara M. Henley John E. Uhrin John D. Moss Rosemary Wilson James L. Wood PRESENT/ABSENT: VOTE: 2. The foregoing Resolution is a true and correct copy of such Resolution as adopted on March _, 2012. The foregoing Resolution has not been repealed, revoked, rescinded or amended and is in full force and effect on the date hereof. WITNESS my signature and the seal of the City of Virginia Beach, Virginia, this day of March, 2012. Clerk, City Council of the City of Virginia Beach, Virginia (SEAL) 4825-09244686.1 DRAFT FINANCING AGREEMENT dated as of 1, 2012 BETWEEN VIRGINIA RESOURCES AUTHORITY, as Administrator of the Virginia Water Facilities Revolving Fund AND CITY OF VIRGINIA BEACH, VIRGINIA Virginia Resources Authority Virginia Water Facilities Revolving Fund Loan No. C-515488-01 TABLE OF CONTENTS Page [To Be Updated] ARTICLE I DEFINITIONS Section1.1. Definitions.......................................................................................................1 Section 1.2. Rules of Construction......................................................................................3 ARTICLE II REPRESENTATIONS Section 2.1. Representations by Borrower..........................................................................3 ARTICLE III ISSUANCE AND DELIVERY OF THE LOCAL BOND Section 3.1. Loan to Borrower and Purchase of the Local Bond ....................................... 5 Section 3.2. Conditions Precedent to Purchase of the Local Bond....................................5 ARTICLE IV USE OF LOCAL BOND PROCEEDS AND CONSTRUCTION OF PROJECT Section 4.1. Application of Proceeds..................................................................................6 Section4.2. Permits.............................................................................................................7 Section 4.3. Borrower Required to Complete Project........................................................7 ARTICLE V PLEDGE OF FULL FAITH AND CREDIT Section 5.1. Pledge of Full Faith and Credit ..................................................... Section 5.2. Sources of Funds........................................................................... - 1 - 7 7 Section 6. 1. Section 6.2. Section 7.1. Section 8.1. Section 8.2. Section 8.3. Section 9.1. Section 9.2. Section 9.3. Section 9.4. Section 9.5. Page ARTICLE VI PAYMENTS Paymentof Local Bond...................................................................................7 Payment of Additional Payments.................................................................... 8 ARTICLE VII PREPAYMENTS Prepayment of Local Bond .......................... ARTICLE VIII OPERATION OF PROJECT Ownership of Project.......................................................... Inspection of Project and Borrower's Books and Records Sale or Encumbrance......................................................... ................ 8 ARTICLE IX INSURANCE. DAMAGE AND DESTRUCTION Insurance........................................................................................... Requirements of Policies................................................................... Notice of Damage, Destruction and Condemnation ......................... Damageand Destruction................................................................... Condemnation and Loss of Title ....................................................... - 11 - .. 9 .. 9 10 Page ARTICLE X SPECIAL COVENANTS Section 10.1. Maintenance of Existence.............................................................................12 Section 10.2. Financial Records and Statements................................................................12 Section 10.3. Certificate as to No Default...........................................................................12 Section 10.4. Further Assurances........................................................................................13 Section 10.5. Other Indebtedness........................................................................................13 Section 10.6. Assignment by Borrower..............................................................................13 Section 10.7. Continuing Disclosure Obligations...............................................................13 ARTICLE XI DEFAULTS AND REMEDIES Section 11.1. Events of Default...........................................................................................17 Section11.2. Notice of Default...........................................................................................18 Section 11.3. Remedies on Default......................................................................................18 Section11.4. Delay and Waiver...........................................................................................18 Section 11.5. State Aid Intercept..........................................................................................18 ARTICLE XII MISCELLANEOUS Section 12.1. Successors and Assigns.................................................................................19 Section12.2. Amendments.................................................................................................19 Section 12.3. Liability of Officials, etc................................................................................19 Section12.4. Applicable Law.............................................................................................19 Section12.5. Severability....................................................................................................19 Section12.6. Notices...........................................................................................................19 Section 12.7. Right to Cure Default....................................................................................20 Section12.8. Headings........................................................................................................20 Section 12.9. Term of Agreement.......................................................................................20 Section 12.10. Commitment Letter.......................................................................................20 Section12.11. Counterparts..................................................................................................21 EXHIBITS Exhibit A - Form of Local Bond Exhibit B - Project Description Exhibit C - Project Budget Exhibit D - Opinion of Borrower's Bond Counsel Exhibit E - Form of Requisition Exhibit F - Operating Data -iv- FINANCING AGREEMENT THIS FINANCING AGREEMENT is made as of this first day of , 2011, between the VIRGINIA RESOURCES AUTHORITY, a public body corporate and a political subdivision of the Commonwealth of Virginia (the "Authority"), as Administrator of the VIRGINIA WATER FACILITIES REVOLVING FUND, and the CITY OF VIRGINIA BEACH, VIRGINIA, a political subdivision of the Commonwealth of Virginia (the "Borrower"). Pursuant to Chapter 22, Title 62.1 of the Code of Virginia (1950), as amended (the "Act"), the General Assembly created a permanent and perpetual fund known as the "Virginia Water Facilities Revolving Fund" (the "Fund"). In conjunction with the State Water Control Board, the Authority administers and manages the Fund. From the Fund, the Authority is authorized to make loans to local governments and certain other entities in furtherance of the land conservation provisions of the Act. The Borrower has requested a loan from the Fund and will evidence its obligation to repay such loan by the Local Bond the Borrower will issue and sell to the Authority, on behalf of the Fund. The Borrower will use the proceeds of the sale of the Local Bond to the Authority to finance that portion of the Project Costs not being paid from other sources, all as further set forth in the Project Budget. ARTICLE I DEFINITIONS Section 1.1. Definitions. The capitalized terms contained in this Agreement and not defined above shall have the meanings set forth below unless the context requires otherwise and any capitalized terms not otherwise defined herein shall have the meaning assigned to such terms in the Act: "Additional Payments" means the payments required by Section 6.2. "Agreement" means this Financing Agreement between the Authority and the Borrower, together with any amendments or supplements hereto. "Annual Administrative Fee" means the portion of the Cost of Funds specified in Section 6.1(a)(ii) payable as an annual fee for administrative and management services attributable to the Local Bond. "Authorized Representative" means any member, official or employee of the Borrower authorized by resolution, ordinance or other official act of the governing body of the Borrower to perform the act or sign the document in question. "Board" means the State Water Control Board. "Closing Date" means the date of the delivery of the Local Bond to the Authority. "Commitment Letter" shall mean the commitment letter from the Authority to the Borrower dated October 24, 2011, and all extensions and amendments thereto. "Conservation Easement" means the Deed of Easement on the Project granted by the Borrower to or for the benefit of the "Cost of Funds" means interest, including the part thereof allocable to the Annual Administrative Fee, payable as set forth in Section 6.1. "Default" means an event or condition the occurrence of which would, with the lapse of time or the giving of notice or both, become an Event of Default. "Department" means the Department of Environmental Quality, created and acting under Chapter 11. 1, Title 10. 1, of the Code of Virginia, as amended. "Event of Default" shall have the meaning set forth in Section 11.1. "Fiscal Year" means the period of twelve months established by the Borrower as its annual accounting period. "Insurance Consultant" means an independent insurance consultant who has a favorable reputation for skill and experience in such work. "Local Bond" means the bond in substantially the form attached to this Financing Agreement as Exhibit A issued by the Borrower to the Authority pursuant to this Agreement. "Local Bond Proceeds" means the proceeds of the sale of the Local Bond to the Authority pursuant to this Agreement. "Local Resolution" means all resolutions or ordinances adopted by the governing body of the Borrower approving the transactions contemplated by and authorizing the execution and delivery of this Agreement and the execution, issuance and delivery of the Local Bond. "Net Proceeds" means the gross proceeds from any insurance recovery or condemnation award remaining after payment of attorneys' fees and expenses of the Authority and all other expenses incurred in the collection of such gross proceeds. "Opinion of Counsel" means a written opinion of recognized bond counsel, acceptable to the Authority. "Project" means the particular project described in Exhibit B, the costs of the acquisition of which are to be financed or refinanced in whole or in part with the Local Bond Proceeds. -2- "Project Budget" means the budget for the financing or the refinancing of the Project, a copy of which is attached to this Agreement as Exhibit C, with such changes therein as may be approved in writing by the Authority. "Project Costs" means the costs of the acquisition of the Project, as further described in the Project Budget, and such other costs as may be approved in writing by the Authority, provided such costs are permitted by the Act. Section 1.2. Rules of Construction. The following rules shall apply to the construction of this Agreement unless the context requires otherwise: (a) Singular words shall connote the plural number as well as the singular and vice versa. (b) All references in this Agreement to particular Sections or Exhibits are references to Sections or Exhibits of this Agreement unless otherwise indicated. (c) The headings and table of contents as used in this Agreement are solely for convenience of reference and shall not constitute a part of this Agreement nor shall they affect its meaning, construction or effect. ARTICLE II REPRESENTATIONS Section 2.1. Representations by Borrower. The Borrower makes the following representations as the basis for its undertakings under this Agreement: (a) The Borrower is a duly created and validly existing "local government" (as defined in Section 62.1-224 of the Act) of the Commonwealth of Virginia and is vested with the rights and powers conferred upon it by Virginia law. (b) The Borrower has full right, power and authority to (i) adopt the Local Resolution and execute and deliver the Conservation Easement, this Agreement and the other documents related thereto, (ii) issue, sell and deliver its Local Bond to the Authority, on behalf of the Fund, (iii) acquire, occupy and use the Project (as described in Exhibit B) and finance and refinance the Project Costs by borrowing money for such purpose pursuant to this Agreement and the issuance of its Local Bond, and (iv) carry out and consummate all of the transactions contemplated by the Local Resolution, the Conservation Easement, this Agreement and the Local Bond. (c) This Agreement and the Local Bond were duly authorized by the Local Resolution and are in substantially the same form as presented to the governing body of the Borrower at its meeting at which the Local Resolution was adopted. -3- (d) All governmental permits, licenses, registrations, certificates, authorizations and approvals required to have been obtained as of the date of the delivery of this Agreement have been obtained for (i) the Borrower's adoption of the Local Resolution, (ii) the execution and delivery by the Borrower of the Conservation Easement, this Agreement and the Local Bond, (iii) the performance and enforcement of the obligations of the Borrower thereunder, and (iv) the acquisition, occupation and use of the Project. The Borrower knows of no reason why any such required governmental permits, licenses, registrations, certificates, authorizations and approvals not obtained as of the date hereof cannot be obtained as needed. (e) The Conservation Easement and this Agreement have been executed and delivered by duly authorized officials of the Borrower and constitute the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their terms. (0 When executed and delivered in accordance with the Local Resolution and this Agreement, the Local Bond will have been executed and delivered by duly authorized officials of the Borrower and will constitute a legal, valid and binding limited obligation of the Borrower enforceable against the Borrower in accordance with its terms. (g) The issuance of the Local Bond and the execution and delivery of the Conservation Easement and this Agreement and the performance by the Borrower of its obligations thereunder are within the powers of the Borrower and will not conflict with, or constitute a breach or result in a violation of, (i) to the best of the Borrower's knowledge, any Federal, or Virginia constitutional or statutory provision, including the Borrower's charter or articles of incorporation, if any, (ii) any agreement or other instrument to which the Borrower is a party or by which it is bound or (iii) any order, rule, regulation, decree or ordinance of any court, government or governmental authority having jurisdiction over the Borrower or its property. (h) There are not pending nor, to the best of the Borrower's knowledge, threatened, any actions, suits, proceedings or investigations of a legal, equitable, regulatory, administrative or legislative nature, in which a judgment, order or resolution may have a materially adverse effect on the Borrower in its business, assets, condition (financial or otherwise), operations or prospects or in its ability to perform its obligations under this Agreement or the Local Bond. (i) No material adverse change has occurred in the financial condition of the Borrower as indicated in the financial statements, applications and other information furnished to the Authority. 0) No Event of Default or Default has occurred and is continuing. -4- ARTICLE III ISSUANCE AND DELIVERY OF THE LOCAL BOND Section 3.1. Loan to Borrower and Purchase of the Local Bond. The Borrower agrees to borrow from the Authority and the Authority agrees to lend to the Borrower, from the Fund, the principal amount equal to the sum of the principal disbursements made pursuant to Section 4. 1, but not to exceed $ , for the purposes herein set forth. The Borrower's obligation shall be evidenced by the Local Bond, which shall be in substantially the form of Exhibit A attached hereto and made a part hereof and delivered to the Authority on the Closing Date. The Local Bond shall be in the original principal amount of the loan and shall mature, bear Cost of Funds and be payable as hereinafter provided. Section 3.2. Conditions Precedent to Purchase of the Local Bond. The Authority shall not be required to make the loan to Borrower and purchase the Local Bond unless the Authority shall have received the following, all in form and substance satisfactory to the Authority: (a) The Local Bond. (b) A certified copy of the Local Resolution. (c) A certificate of appropriate officials of the Borrower as to the matters set forth in Section 2.1 and such other matters as the Authority may reasonably require. (d) Evidence satisfactory to the Authority that all governmental permits, licenses, registrations, certificates, authorizations and approvals for the Project required to have been obtained as of the date of the delivery of this Agreement have been obtained and a statement of the Authorized Representative that he knows of no reason why any future required governmental permits, licenses, registrations, certificates, authorizations and approvals cannot be obtained as needed. (e) Evidence satisfactory to the Authority that the Borrower has obtained or has made arrangements satisfactory to the Authority to obtain any funds or other financing for the Project as contemplated in the Project Budget. (f) Evidence satisfactory to the Authority that the Borrower has performed and satisfied all of the terms and conditions contained in this Agreement to be performed and satisfied by it as of such date. (g) An Opinion of Counsel, substantially in the form of Exhibit D, addressed to the Fund and the Authority. (h) An opinion of counsel to the Borrower in form and substance reasonably satisfactory to the Authority. -5- (i) Evidence satisfactory to the Authority that the Borrower has complied with the insurance provisions set forth in Sections 9.1 and 9.2 hereof. 0) Arrangements satisfactory to the Authority providing for the recordation of the Conservation Easement, as approved by the Department, in the appropriate land records for the Project immediately following the recordation of the warranty deed transferring title to the Project to the Borrower. (k) Evidence satisfactory to the Authority that the Borrower has fee simple, marketable title to the Project. (1) Such other documentation, certificates and opinions with respect to the Borrower and the financing of the Project as the Authority, the Board or the Department may reasonably require. ARTICLE IV USE OF LOCAL BOND PROCEEDS AND CONSTRUCTION OF PROJECT Section 4.1. Application of Proceeds. The Borrower agrees to apply the Local Bond Proceeds solely and exclusively to the payment, or to the reimbursement of the Borrower for the payment, of Project Costs and further agrees to exhibit to the Department or the Authority receipts, vouchers, statements, bills of sale or other evidence of the actual payment of such Project Costs. The Authority shall disburse money from the Fund to or for the account of the Borrower not more frequently than once each calendar month (unless otherwise agreed by the Authority and the Borrower) upon receipt by the Authority (with a copy to be furnished to the Department) of a requisition (upon which the Authority, the Board and the Department shall be entitled to rely) signed by an Authorized Representative and containing all information called for by, and otherwise being in the form of, Exhibit E to this Agreement. Upon receipt of each such requisition and accompanying certificate or certificates and approval thereof by the Department, the Authority shall disburse Local Bond Proceeds hereunder to or for the account of the Borrower in accordance with such requisition in an amount and to the extent approved by the Department and shall note the date and amount of each such disbursement on a schedule of principal disbursements to be included on the Local Bond. The Authority shall have no obligation to disburse any such Local Bond Proceeds if the Borrower is in default hereunder nor shall the Department have any obligation to approve any requisition if the Borrower is not in compliance with the terms of this Agreement. The Authority shall have no obligation to disburse Local Bond Proceeds in excess of the amount necessary to pay for approved Project Costs. If principal disbursements up to the maximum authorized amount of the Local Bond are not made, principal installments due on the Local Bond shall be reduced in accordance with Section 6.1. Section 4.2. Permits. The Borrower, at its sole cost and expense, shall comply with, and shall obtain all permits, consents and approvals required by local, state or federal laws, ordinances, rules, regulations or requirements in connection with the acquisition, occupation and use of the Project. The Borrower shall, upon request, promptly furnish to the Authority and the Department copies of all such permits, consents and approvals. The Borrower shall also comply with all lawful program or procedural guidelines or requirements duly promulgated and amended from time to time by the Department in connection with the acquisition, occupation and use of projects financed from the Fund under the Act. The Borrower shall also comply in all respects with all applicable federal laws, regulations and other requirements relating to or arising out of or in connection with the Project and the funding thereof from the Fund. Section 4.3. Borrower Required to Complete Project. If the Local Bond Proceeds are not sufficient to pay in full the cost of the Project, the Borrower will complete the Project at its own expense and shall not be entitled to any reimbursement therefor from the Fund, the Authority, the Department or the Board or any abatement, diminution or postponement of the Borrower's payments under the Local Bond or this Agreement. ARTICLE V PLEDGE OF FULL FAITH AND CREDIT Section 5.1. Pledge of Full Faith and Credit. Under the Local Resolution, the Borrower has pledged its full faith and credit to secure the payment of the principal of the Local Bond of the Borrower and the performance of its obligations under this Agreement. The Borrower agrees, unless other funds are lawfully available and appropriated for timely payment of the Local Bond, to levy an annual tax upon all property subject to local taxation in its jurisdiction sufficient to pay the principal of and the Cost of Funds on the Local Bond. Section 5.2. Source of Funds. Notwithstanding anything to the contrary contained in this Agreement, the obligations for the payment of money set forth in this Agreement (as opposed to the Local Bond), except for the obligations under Section 6. 1, shall be payable only from legally available and appropriated funds. ARTICLE VI PAYMENTS Section 6.1. Payment of Local Bond. (a) The Local Bond shall be dated the date of its delivery to the Authority. The Cost of Funds of the Local Bond shall be computed on disbursed principal balance thereof from the date of each disbursement at the rate of twenty-five one -hundredths percent (0.25%) per.. annum, consisting of the following: (i) interest of five one -hundredths percent (0.05%) per annum payable for the benefit of the Fund, and -7- (ii) twenty one -hundredths percent (0.20%) per annum payable as an Annual Administrative Fee. (b) The Cost of Funds only on all amounts disbursed under the Local Bond shall be due and payable on 1, 20_. Commencing 1, 20_, and continuing semi-annually thereafter on 1 and 1 in each year, principal and the Cost of Funds due under the Local Bond shall be payable in equal installments of $ , with a final installment of $ due and payable on 1, 20_, when, if not sooner paid, all amounts due hereunder and under the Local Bond shall be due and payable in full. Each installment shall be applied first to payment of the Cost of Funds accrued and unpaid to the payment date and then to principal. If principal disbursements up to the maximum authorized amount of the Local Bond are not made, the principal amount due on the Local Bond shall not include such undisbursed amount. However, unless the Borrower and the Authority agree otherwise in writing, until all amounts due hereunder and under the Local Bond shall have been paid in full, less than full disbursement of the maximum authorized amount of the Local Bond shall not postpone the due date of any semi-annual installment due on the Local Bond, or change the amount of such installment. If any installment of principal or the Cost of Funds on the Local Bond is not paid within ten (10) days after its due date, the Borrower agrees to pay to the Authority a late payment charge in an amount equal to five percent (5.0%) of the overdue installment. Section 6.2. Payment of Additional Payments. In addition to the payments of principal and the Cost of Funds on the Local Bond, the Borrower agrees to pay on demand of the Authority the following Additional Payments: (1) The costs of the Fund, the Authority, the Department or the Board in connection with the enforcement of this Agreement, including the reasonable fees and expenses of any attorneys used by any of them; and (2) All expenses, including reasonable attorneys' fees, relating to any amendments, waivers, consents or collection or enforcement proceedings pursuant to the provisions hereof. The Borrower agrees to pay interest on any Additional Payments enumerated in (1) or (2) above not received by the Authority within ten (10) days after demand therefor at a rate of five percent (5.0%) per annum of the overdue installment from its due date until the date it is paid. ARTICLE VII PREPAYMENTS Section 7.1. Prepayment of Local Bond. (a) At its option and after giving at least ten (10) days' written notice to the Authority, the Borrower may prepay the Local Bond at any time, in whole or in part and without penalty. Such written notice shall specify the date on which the Borrower will make such prepayment and whether the Local Bond will be prepaid in full or in part, and if in part, the principal amount to be prepaid. Any such partial prepayment shall be applied against the principal amount outstanding under the Local Bond but shall not postpone the due date of any subsequent payment on the Local Bond, or change the amount of such installment, unless the Borrower and the Authority agree otherwise in writing. (b) Promptly following receipt by the Borrower of any grant funding obtained with respect to the Project or any other amounts that are hereafter specifically pledged towards the Project (the "Grant Funds"), but in any event no later than fifteen (15) days after the receipt of the Grant Funds, the Borrower shall apply the Grant Funds (net of any customary expenses, reasonably acceptable to the Authority, incurred by the Borrower in connection with the receipt of the Grant Funds) towards the prepayment of the outstanding principal amount of the Local Bond. The Borrower shall provide the Authority with at least ten (10) days prior written notice of the anticipated receipt of any Grant Funds. (c) Any partial prepayment shall be applied against the principal amount outstanding under the Local Bond but shall not postpone the due date of any subsequent payment on the Local Bond, or change the amount of such installment (except to the extent provided in Section 6. 1), unless the Borrower and the Authority agree otherwise in writing. ARTICLE VIII OWNERSHIP OF PROJECT Section 8.1. Ownership of Project. Except as may otherwise be approved by the Authority, the Project at all times shall be owned and controlled by the Borrower and shall not be owned or controlled by any other entity or person. The Borrower covenants that it is lawfully possessed of the Project as presently existing and that it will continually defend its interest in the Project and every part thereof for the benefit of the Authority against the claims and demands of all persons whomsoever. If any defect (other than such permitted encumbrances as shall be reasonably acceptable to the Authority) shall be discovered in the title to the Project, the Borrower shall promptly take such action as may be necessary or proper to remedy or cure the same. The Borrower shall comply with all lawful requirements of any governmental authority regarding the Project whether now existing or subsequently enacted, whether foreseen or unforeseen or whether involving any change in governmental policy, irrespective of the cost of making the same. Section 8.2. Inspection of Project and Borrower's Books and Records. The Authority and the Board and their duly authorized representatives and agents shall have such reasonable rights of access to the Project as may be necessary to determine whether the Borrower is in compliance with the requirements of this Agreement and shall have the right at all reasonable times and upon reasonable prior notice to the Borrower to examine and copy the books and records of the Borrower insofar as such books and records relate to the Project and the Project Costs. Section 8.3. Sale or Encumbrance. The Borrower shall not sell, lease, sublease or otherwise dispose of any of the real properties constituting the Project without simultaneously with such sale, lease, sublease or disposition, defeasing or prepaying the Promissory Note by the amount of proceeds received from the sale, lease, sublease or disposition of any of the real properties constituting a portion of the Project upon terms and conditions satisfactory to the Authority in its discretion. Notwithstanding the foregoing, the Borrower may enter into unrecorded lease agreements concerning the use of a portion of the Project for farming, recreational, silvicultural or agricultural activities consistent with the terms of the applicable Conservation Easement. ARTICLE IX INSURANCE, DAMAGE AND DESTRUCTION Section 9.1. Insurance. The Borrower continuously shall maintain or cause to be maintained insurance against such risks as are customarily insured against by public bodies similar in size and character to the Borrower, including, without limitation: (a) Comprehensive general liability insurance with a combined single limit of $1,000,000 per year against liability for bodily injury, including death resulting therefrom, and for damage to property, including loss of its use, arising out of the ownership, maintenance, operation or use of the Project. (b) Unless the Borrower qualifies as a self -insurer under Virginia law, worker's compensation insurance. The Authority shall not have any responsibility or obligation with respect to (i) the procurement or maintenance of insurance or the amounts or the provisions with respect to policies of insurance or (ii) the application of the proceeds of insurance. The Borrower shall provide, upon the Authority's written request, a certificate or certificates of the respective insurers evidencing the fact that the insurance required by this Section is in force and effect. Section 9.2. Requirements of Policies. All insurance required by Section 9.1 shall be maintained with generally recognized responsible insurance companies selected by the Borrower and reasonably acceptable to the Authority. Such insurance may be written with deductible amounts comparable to those on similar policies carried by public bodies similar in size and character to the Borrower. If any such insurance is not maintained with an insurer licensed to do business in Virginia or placed under the requirements of the Virginia Surplus Lines Insurance Law, Article 5, Chapter 7. 1, Title 38.1, Code of Virginia of 1950, as amended, or any successor statute, the Borrower shall provide evidence reasonably satisfactory to the Authority that such insurance is enforceable under Virginia law. In lieu of obtaining any of the policies of insurance required by Section 9. 1, the Borrower may adopt alternative risk management programs which it determines to be reasonable, -10- including, without limitation, to self -insure in whole or in part, individually or in connection with other units of local government or other institutions, to participate in programs of captive insurance companies, to participate with other units of local government or other institutions in mutual or other cooperative insurance or other risk management programs, to participate in State or Federal insurance programs, to take advantage of State or Federal laws now or hereafter in existing limiting liability, or to establish or participate in other alternative risk management programs, all as may be reasonable and appropriate risk management by the Borrower and that provide comparable coverages required by such sections. In addition, any insurance coverage pursuant to this Article may be pursuant to a program whereby the Borrower self -insures against certain losses up to a stated loss amount, and retains excess coverage from an insurer meeting the requirements of this Article. Any self-insurance plan or alternative risk management program maintained by the Borrower with respect to the Project will be a Qualified Self -Insurance Plan. A "Qualified Self - Insurance Plan" means any plan or program of self-insurance regarding which the Borrower shall have received an opinion of an Insurance Consultant that the Borrower has established an adequate, actuarially sound program for the funding of reserves for such self-insurance. The Borrower agrees to comply with such program unless a change therein is recommended by the Insurance Consultant. The Borrower agrees to cause the Insurance Consultant to review any Qualified Self -Insurance Plan at least annually and to make written recommendations as to what funding levels are adequate to protect against the risks covered by the plan. The Borrower agrees to follow such recommendations. Section 9.3. Notice of Damage, Destruction or Condemnation_. In case of (i) any damage to or destruction of any material part of the Project, (ii) a taking of all or any part of the Project or any right in it under the exercise of the power of eminent domain, (iii) any loss of the Project because of failure of title, or (iv) the commencement of any proceedings or negotiations which might result in such a taking or loss, the Borrower shall give prompt notice to the Authority describing generally the nature and extent of such damage, destruction, taking, loss, proceedings or negotiations. Section 9.4. Damage and Destruction. If all or any part of the Project is destroyed or damaged by fire or other casualty, and the Borrower shall not have exercised its option, if such option is available, to prepay the obligations under this Agreement pursuant to Section 7. 1, the Borrower shall restore promptly the property damaged or destroyed to substantially the same condition as before such damage or destruction, with such alterations and additions as the Borrower may determine and which will not impair the capacity or character of the Project for the purpose for which it then is being used or is intended to be used. The Borrower may apply so much as may be necessary of the Net Proceeds received on account of any such damage or destruction to payment of the cost of such restoration, either on completion or as the work progresses. If such Net Proceeds are not sufficient to pay in full the cost of such restoration, the Borrower shall pay so much of the cost as may be in excess of such Net Proceeds. Section 9.5. Condemnation and Loss of Title. If title to or the temporary use of all or any part of the Project shall be taken under the exercise of the power of eminent domain or lost because of failure of title, and the Borrower shall not have exercised its option, if such option is -11- available, to prepay the obligations under this Agreement pursuant to Section 7. 1, the Borrower shall cause the Net Proceeds from any such condemnation award or from title insurance to be applied to the restoration of the Project to substantially its condition before the exercise of such power of eminent domain or failure of title. If such Net Proceeds are not sufficient to pay in full the cost of such restoration, the Borrower shall pay so much of the cost as may be in excess of such Net Proceeds. ARTICLE X SPECIAL COVENANTS Section 10.1. Maintenance of Existence. The Borrower shall maintain its existence as a "local government" (as defined in the Act) of the Commonwealth of Virginia and, without consent of the Authority and the Department, shall not dissolve or otherwise dispose of all or substantially all of its assets or consolidate or merge with or into another entity. Notwithstanding the foregoing, the Borrower may consolidate or merge with or into, or sell or otherwise transfer all or substantially all of its assets to a political subdivision of the Commonwealth of Virginia, and the Borrower thereafter may dissolve, if the surviving, resulting or transferee political subdivision, if other than the Borrower, assumes, in written form acceptable to the Authority and the Department, all of the obligations of the Borrower contained in the Local Bond and this Agreement, and there is furnished to the Authority and the Department an Opinion of Counsel acceptable to the Authority and the Department, subject only to customary exceptions and qualifications, to the effect that such assumption constitutes the legal, valid and binding obligation of the surviving, resulting or transferee political subdivision enforceable against it in accordance with its terms. Section 10.2. Financial Records and Statements. The Borrower shall maintain proper books of record and account in which proper entries shall be made in accordance with generally accepted government accounting standards, consistently applied, of all its business and affairs related to the Project. The Borrower shall have an annual audit of the financial condition of the Borrower made by an independent certified public accountant, within one hundred and eighty (180) days after the end of each Fiscal Year. The annual audit shall be conducted in accordance with the provisions of the Single Audit Act of 1984, 31 U.S.C. §§ 7501 et seq., as amended, and the regulations promulgated thereunder, including OMB Circular No. A-133. The Borrower shall furnish to the Authority copies of such report immediately after it is accepted by the Borrower. Such report shall include statements in reasonable detail, certified by such accountant, reflecting the Borrower's financial position as of the end of such Fiscal Year and the results of the Borrower's operations and changes in the financial position of its funds for the Fiscal Year. Section 10.3. Certificate as to No Default. The Borrower shall deliver to the Authority, within one hundred and eighty (180) days after the close of each Fiscal Year, a certificate signed by an Authorized Representative stating that, during such year and as of the date of such certificate, no event or condition has happened or existed, or is happening or existing, which constitutes an Event of Default or a Default, or if such an event or condition has -12- happened or existed, or is happening or existing, specifying the nature and period of such event or condition and what action the Borrower has taken, is taking or proposes to take to rectify it. Section 10.4. Further Assurances. The Borrower shall to the fullest extent permitted by law pass, make, do, execute, acknowledge and deliver such further resolutions, acts, deeds, conveyances, assignments, transfers and assurances as may be necessary or desirable for the better assuring, conveying, granting, assigning and confirming the rights granted or assigned by this Agreement, or as may be required to carry out the purposes of this Agreement. The Borrower shall at all times, to the fullest extent permitted by law, defend, preserve and protect all rights of the Authority, the Department and the Board under this Agreement against all claims and demands of all persons. Section 10.5. Other Indebtedness. The Borrower agrees to pay when due all amounts required by any other bonded indebtedness and to perform all of its obligations in connection therewith. Section 10.6. Assignment by Borrower. The Borrower may not assign its rights under this Agreement without the prior written consent of the Authority and the Department. If the Borrower desires to assign its rights under this Agreement to another "local government" (as defined in the Act), the Borrower shall give notice of such fact to the Authority and the Department. If the Authority and the Department consent to the proposed assignment, the Borrower may proceed with the proposed assignment, but such assignment shall not become effective until the Authority and the Department are furnished (i) an assumption agreement in form and substance satisfactory to the Authority and the Department by which the assignee agrees to assume all of the Borrower's obligations under the Local Bond and this Agreement, and (ii) an Opinion of Counsel to the assignee, subject to customary exceptions and qualifica- tions, that the assumption agreement, the Local Bond and this Agreement constitute legal, valid and binding obligations of the assignee enforceable against the assignee in accordance with their terms and that the assignment and assumption comply in all respects with the provisions of this Agreement. Notwithstanding the foregoing, the assignment of the rights of the Borrower under the Local Bond and this Agreement or the assumption of the obligations thereunder by the assignee shall in no way be construed as releasing the Borrower's obligations. Section 10.7. Continuing Disclosure Obligations. (a) For purposes of this section, the following terms and phrases shall have the following meaning: "Annual Financial Information" with respect to any Fiscal Year for the Borrower, means the following: (i) the financial statements (consisting of at least a balance sheet and statement of revenues and expenses) of the Borrower, which financial statements must be (A) prepared annually in accordance with generally accepted accounting principles in effect from time to time consistently applied (provided that nothing in this clause (A) will prohibit the Borrower after the date of this Agreement from changing such other principles so as to comply with generally accepted accounting principles as then in effect or to comply with a change in applicable law) and (B) audited by an independent certified public accountant or firm of such - 13 - accountants in accordance with generally accepted auditing standards as in effect from time to time (provided that if audited financial statements are not available for filing when required by this Section or the Rule (as defined herein), unaudited financial statements will be filed and audited financial statements will be filed as soon as possible thereafter); and (ii) operating data of the type set forth in Exhibit F. "Dissemination Agent" shall mean any person, reasonably acceptable to the Authority, whom the Borrower contracts in writing to perform its obligations as provided in subsection (b) of this section. "Leveraging Bonds" means the bonds and other evidences of indebtedness issued and sold by the Authority pursuant to the Virginia Resources Authority Act, Chapter 21, Title 62.1 of the Code of Virginia (1950), as amended, the Act, and any successor provisions of law, including without limitation the bonds and other evidences of indebtedness issued by the Authority under the Amended and Restated Master Indenture of Trust dated as of April 1, 2010, between the Authority and U.S. Bank National Association, as trustee, as supplemented and amended, and the Third Supplemental Series Trust Indenture dated as of September 1, 2011, between the Authority and U.S. Bank National Association, as trustee, as supplemented and amended, or any successors thereto. "Local Government" shall have the meaning set forth in Section 62.1-199 of the Code of Virginia of 1950, as amended. "Local Obligations" shall mean any bonds, notes, debentures, interim certificates, bond, grant or revenue anticipation notes, leases or any other evidences of indebtedness of a Local Government evidencing a loan made by the Authority to a Local Government from the Fund or the proceeds of Leveraging Bonds. "Make Public" or "Made Public" shall have the meaning set forth in subsection (c) of this Section. "Material Local Government" shall mean a Local Government that satisfies a set of objective criteria established by the Authority at the time of sale of each series of Leveraging Bonds and based on the level of participation of each Local Government in the aggregate outstanding principal amount of all Local Obligations. For all Leveraging Bonds currently outstanding as of the date of this Agreement, a Material Local Government is any Local Government whose aggregate outstanding principal amount of Local Obligations represents twenty percent (20%) or more of the aggregate outstanding principal amount of all Local Obligations. "Rule" means Rule 15c2-12, as it may be amended from time to time, under the Securities Exchange Act of 1934 and any similar rules of the SEC relating to disclosure requirements in the offering and sale of municipal securities, all as in effect from time to time. -14- "SEC" means the U.S. Securities and Exchange Commission. (b) The Borrower shall Make Public or cause to be Made Public: (1) Within 270 days after the end of the Borrower's Fiscal Year (commencing with the Fiscal Year in which the Closing Date occurs), Annual Financial Information for such Fiscal Year as of the end of which the Borrower constitutes a Material Local Government. Annual Financial Information may be set forth in the documents Made Public or may be included by reference in a document Made Public to any document previously filed with the SEC. If the document referred to is a final official statement within the meaning of the Rule, then it must be available from the Municipal Securities Rulemaking Board ("MSRB"). (2) In a timely manner, notice of any failure by the Borrower to Make Public or cause to be Made Public Annual Financial Information pursuant to the terms of part (1) of this subsection. (c) For purposes of this Section, information and notices shall be deemed to have been Made Public if transmitted to the Authority and to the MSRB for publication on its Electronic Municipal Market Access system ("EMMA"). (d) The Borrower shall also notify the Authority as promptly as possible upon becoming aware of any of the following events that may from time to time occur with respect to the Local Bond: (1) principal and Cost of Funds payment delinquencies; (2) non-payment related defaults; (3) unscheduled draws on debt service reserves reflecting financial difficulties; (4) unscheduled draws on any credit enhancement reflecting financial difficulties; (5) substitution of credit or liquidity providers, or their failure to perform; (6) adverse tax opinions, the issuance by the Internal Revenue Service of proposed or final determinations of taxability, Notices of Proposed Issue (IRS Form 5701-TEB) or other notices or determinations with respect to the tax status of the Local Bond, or other events affecting the tax status of the Local Bond; (7) modifications to rights of the holders of the Local Bond; (8) bond calls and tender offers; -15- Local Bond; (9) defeasances of all or any portion of the Local Bond; (10) release, substitution, or sale of property securing repayment of the (11) rating changes; (12) bankruptcy, insolvency, receivership or similar event of the Borrower*; (13) the consummation of a merger, consolidation or acquisition involving the Borrower or the sale of all or substantially all of the assets of the Borrower, 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; and (14) appointment of a successor or additional trustee or the change in the name of a trustee. (e) Notwithstanding anything in this Agreement to the contrary, the Borrower need not comply with the provisions of subsections (a) through (d) above unless and until the Authority has notified the Borrower that it satisfied the objective criteria for a Material Local Government as of the end of the Authority's immediately preceding fiscal year. (f) The obligations of the Borrower under this Section will terminate upon the redemption, defeasance (within the meaning of the Rule) or payment in full of all of the Leveraging Bonds. (g) The Borrower may modify its continuing disclosure obligations in this Section without the consent of holders of the Leveraging Bonds provided that this Section as so modified complies with the Rule as it exists at the time of modification. The Borrower shall within a reasonable time thereafter send to the Authority and the MSRB through EMMA a description of such modification(s). (h) (1) If the Borrower fails to comply with any covenant or obligation set forth in this Section, any holder (within the meaning of the Rule) of Leveraging Bonds then Outstanding may, by notice to the Borrower, proceed to protect and enforce its rights and the rights of the holders by an action for specific performance of the Borrower's covenants or obligations set forth in this Section. * This event is considered to occur when any of the following occur: the appointment of a receiver, fiscal agent or similar officer for the Borrower in a proceeding under the U.S. Bankruptcy Code or in any other proceeding under state or federal law in which a court of governmental authority has assumed jurisdiction over substantially all of the assets or business of the Borrower, or if such jurisdiction has been assumed by leaving the existing governing body and officials or officers in possession but subject to the supervision and orders of a court of governmental authority, or the entry of an order confirming a plan of reorganization, arrangement or liquidation by a court or governmental authority having supervision or jurisdiction over substantially all of the assets or business of the Borrower. -16- (2) Notwithstanding anything herein to the contrary, any failure of the Borrower to comply with any obligation regarding Annual Financial Information specified in this Section (i) shall not be deemed to constitute an Event of Default under this Agreement and (ii) shall not give rise to any right or remedy other than that described in part (h)(1) of this Section. (i) The Borrower may from time to time disclose certain information and data in addition to that required under this Section. Notwithstanding anything in this Agreement to the contrary, the Borrower shall not incur any obligation to continue to provide, or to update, such additional information or data. 0) The Borrower may, from time to time, appoint or engage a Dissemination Agent to assist it in carrying out its obligation to Make Public the Annual Financial Information, and may discharge any such Agent, with or without appointing a successor Dissemination Agent. ARTICLE XI DEFAULTS AND REMEDIES Section 11.1. Events of Default. Each of the following events shall be an "Event of Default": (a) The failure to pay when due any payment of principal and Cost of Funds due hereunder or to make any other payment required to be made under the Local Bond or this Agreement; (b) The Borrower's failure to perform or observe any of the other covenants, agreements or conditions of the Local Bond or this Agreement and the continuation of such failure for a period of thirty (30) days after the Authority gives the Borrower written notice specifying such failure and requesting that it be cured, unless the Authority shall agree in writing to an extension of such time prior to its expiration; provided, however, if the failure stated in the notice is correctable but cannot be corrected within the applicable period, the Authority will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by the Borrower within the applicable period and diligently pursued until the Default is corrected; (c) Any warranty, representation or other statement by or on behalf of Borrower contained in this Agreement or in any instrument furnished in compliance with or in reference to this Agreement or in connection with the issuance and sale of the Local Bond is false or misleading in any material respect; (d) The occurrence of a default by the Borrower under the terms of any general obligation indebtedness to which it has pledged its full faith and credit, and the failure to cure such default or obtain a waiver thereof within any period of time permitted thereunder; -17- (e) Any proceeding shall be instituted, with the Borrower's consent or acquiescence, for the purpose of effecting a composition between the Borrower and its creditors or for the purpose of adjusting the claims of such creditors, pursuant to any federal or state statute now or hereafter enacted, if the claims of such creditors are under any circumstances secured by the Borrower's full faith and credit; or (0 Any bankruptcy, insolvency or other similar proceeding shall be instituted by or against the Borrower under any federal or state bankruptcy or insolvency law now or hereinafter in effect and, if instituted against the Borrower, is not dismissed within sixty (60) days after filing. Section 11.2. Notice of Default. The Borrower agrees to give the Authority prompt written notice if any order, decree or proceeding referred to in Section 11.1(e) or (f) is entered or instituted against the Borrower or of the occurrence of any other event or condition which constitutes a Default or an Event of Default immediately upon becoming aware of the existence thereof. Section 11.3. Remedies on Default. Whenever any Event of Default referred to in Section 11.1 shall have happened and be continuing, the Authority shall, in addition to any other remedies provided herein or by law, including rights specified in Section 62.1-228 of the Act, have the right, at its option without any further demand or notice, to take one or both of the following remedial steps: (a) Declare immediately due and payable all payments due or to become due on the Local Bond and under this Agreement, and upon notice to the Borrower, the same shall become immediately due and payable by the Borrower without further notice or demand; and (b) Take whatever other action at law or in equity may appear necessary or desirable to collect the payments then due and thereafter to become due on the Local Bond and under this Agreement or to enforce any other of the Fund's, the Authority's, the Department's or the Board's rights under this Agreement or to enforce performance by the Borrower of its covenants, agreements or undertakings contained herein or in the Local Bond. Section 11.4. Delay and Waiver. No delay or omission to exercise any right or power accruing upon any Default or Event of Default shall impair any such right or power or shall be construed to be a waiver of any such Default or Event of Default or acquiescence therein, and every such right or power may be exercised from time to time and as often as may be deemed expedient. No waiver of any Default or Event of Default under this Agreement shall extend to or shall affect any subsequent Default or Event of Default or shall impair any rights or remedies consequent thereto. Section 11.5. State Aid Intercept. The Borrower acknowledges that the Authority may take any and all actions available to it under the laws of the Commonwealth of Virginia, including Section 62.1-216.1 of the Virginia Code, to secure payment of the principal of and the - 18 - Cost of Funds on the Local Bond, if payment of such principal and Cost of Funds shall not be paid when the same shall become due and payable. ARTICLE XII MISCELLANEOUS Section 12.1. Successors and Assigns. This Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. Section 12.2. Amendments. The Authority and the Borrower, with the written consent of the Department, shall have the right to amend from time to time any of the terms and conditions of this Agreement, provided that all amendments shall be in writing and shall be signed by or on behalf of the Authority and the Borrower. Section 12.3. Liability of Officials, etc. In the absence of fraud, no present or future director, official, officer, employee or agent of the Borrower shall be liable personally in respect of this Agreement or the Local Bond or for any other action taken by such individual pursuant to or in connection with the financing provided for in this Agreement or the Local Bond. Section 12.4. Applicable Law. This Agreement shall be governed by the applicable laws of Virginia. Section 12.5. Severability. If any clause, provision or section of this Agreement shall be held illegal or invalid by any court, the illegality or invalidity of such clause, provision or Section shall not affect the remainder of this Agreement which shall be construed and enforced as if such illegal or invalid clause, provision or section had not been contained in this Agreement. If any agreement or obligation contained in this Agreement is held to be in violation of law, then such agreement or obligation shall be deemed to be the agreement or obligation of the Authority and the Borrower, as the case may be, only to the extent permitted by law. Section 12.6. Notices. Unless otherwise provided for herein, all demands, notices, approvals, consents, requests, opinions and other communications under the Local Bond or this Agreement shall be in writing and shall be deemed to have been given when delivered in person or mailed by first class registered or certified mail, postage prepaid, addressed as follows: Fund: Virginia Water Facilities Revolving Fund c/o Virginia Resources Authority 1111 East Main Street, Suite 1920 Richmond, VA 23219 Attention: Executive Director Authority: Virginia Resources Authority 111 I East Main Street, Suite 1920 Richmond, VA 23219 Attention: Executive Director -19- Department State Water Control Board and Board: Department of Environmental Quality P. O. Box 1105 Richmond, VA 23218 Attention: Executive Director Borrower: City of Virginia Beach, Virginia Municipal Center Building 1, Room 234 2401 Courthouse Drive Virginia Beach, Virginia 23456-9001 Attention: City Manager A duplicate copy of each demand, notice, approval, consent, request, opinion or other communication given by any party named in this Section shall also be given to each of the other parties named. The Authority, the Department, the Board and the Borrower may designate, by notice given hereunder, any further or different addresses to which subsequent demands, notices, approvals, consents, requests, opinions or other communications shall be sent or persons to whose attention the same shall be directed. Section 12.7. Right to Cure Default. If the Borrower shall fail to make any payment or to perform any act required by it under the Local Bond or this Agreement, the Authority without prior notice to or demand upon the Borrower and without waiving or releasing any obligation or default, may (but shall be under no obligation to) make such payment or perform such act. All amounts so paid by the Authority and all costs, fees and expenses so incurred shall be payable by the Borrower as an additional obligation under this Agreement, together with interest thereon at the rate of interest of five percent (5.0%) per annum until paid. The Borrower's obligation under this Section shall survive the payment of the Local Bond. Section 12.8. Headings. The headings of the several articles and sections of this Agreement are inserted for convenience only and do not comprise a part of this Agreement. Section 12.9. Term of Agreement. This Agreement shall be effective upon its execution and delivery, provided that the Local Bond shall have been previously or simultaneously executed and delivered. Except as otherwise specified, the Borrower's obligations under the Local Bond and this Agreement shall expire upon payment in full of the Local Bond and all other amounts payable by the Borrower under this Agreement. Section 12.10. Commitment Letter. The Commitment Letter is an integral part of this Agreement and shall survive closing hereunder. -20- Section 12.11. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which together shall constitute but one and the same instrument. [Signature Page Follows] -21- WITNESS the following signatures, all duly authorized. VIRGINIA RESOURCES AUTHORITY, as Administrator of the Virginia Water Facilities Revolving Fund Stephanie L. Hamlett Executive Director CITY OF VIRGINIA BEACH, VIRGINIA Its: -22- EXHIBIT A FORM OF LOCAL BOND CITY OF VIRGINIA BEACH, VIRGINIA C-515488-01 [To come from Borrower's Bond Counsel] EXHIBIT B PROJECT DESCRIPTION CITY OF VIRGINIA BEACH, VIRGINIA C-515488-01 The Project includes financing the acquisition of property related to the Lynnhaven Oyster Restoration and Estuary Protection Project, together with related expenses. EXHIBIT C PROJECT BUDGET CITY OF VIRGINIA BEACH, VIRGINIA C-515488-01 COST CATEGORY Total AMOUNT EXHIBIT D OPINION OF BORROWER'S BOND COUNSEL CITY OF VIRGINIA BEACH, VIRGINIA C-515488-01 [To come from Borrower's Bond Counsel] EXHIBIT E FORM OF REQUISITION CITY OF VIRGINIA BEACH, VIRGINIA C-515488-01 [LETTERHEAD OF BORROWER] [Date] Walter A. Gills, Program Manager Construction Assistance Program Department of Environmental Quality P. O. Box 1105 Richmond, VA 23218 Re: City of Virginia Beach, Virginia Loan No. C-515488-01 Dear Mr. Gills: This requisition, Number , is submitted in connection with the Financing Agreement dated as of 1, 2011 (the "Financing Agreement"), between the Virginia Resources Authority, as Administrator of the Virginia Water Facilities Revolving Fund (the "Authority"), and the City of Virginia Beach, Virginia (the "Borrower"). Unless otherwise defined in this requisition, all capitalized terms used herein shall have the meaning set forth in Article I of the Financing Agreement. The undersigned Authorized Representative of the Borrower hereby requests disbursement of loan proceeds under the Financing Agreement in the amount of $ for the purposes of payment or reimbursement of the Project Costs as set forth in Schedule 1 attached hereto. The undersigned certifies that (a) the amounts requested by this requisition will be applied solely and exclusively to the payment, or to the reimbursement of the Borrower for the payment, of Project Costs, and (b) any materials, supplies or equipment covered by this requisition are not subject to any lien or security interest or such lien or security interest will be released upon payment of the requisition. Sincerely, (Authorized Representative of the Borrower) Attachments cc: DEQ Regional Engineer (with all attachments) P. MOVE �I I i a ¢ o� A � a � 3 a x x U w F�1 ¢ i O t a 00 00 � U z O O _ rJi a C� fYl a U H �I I i A 3 a a � O 69 6R 69 69 EXHIBIT F OPERATING DATA CITY OF VIRGINIA BEACH, VIRGINIA C-515488-01 Description of Borrower. A description of the Borrower including a summary of its form of government, budgetary processes and its management and officers. Debt. A description of the terms of the Borrower's outstanding tax -supported and other debt including a historical summary of outstanding tax -supported debt; a summary of authorized but unissued tax -supported debt; a summary of legal debt margin; a summary of overlapping debt; and a summary of annual debt service on outstanding tax -supported debt as of the end of the preceding Fiscal Year. The Annual Financial Information should also include (to the extent not shown in the latest audited financial statements) a description of contingent obligations as well as pension plans administered by the Borrower and any unfunded pension liabilities. Financial Information and Operating Data. Financial information and operating data respecting the Borrower including a description of revenues and expenditures for its major funds and a summary of its tax policy, structure and collections as of the end of the preceding Fiscal Year. �sy AIA B c CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Accept and Appropriate Grant Funds to the Department of Human Services (DHS) and to Transfer Funds within DHS for a Program to Reduce Juvenile Delinquency MEETING DATE: March 13, 2012 ■ Background: The Virginia Department of Criminal Justice Services awarded a grant to the Virginia Beach Department of Human Services. The Juvenile Justice and Delinquency Prevention Title V: Steps To Respect grant includes a three-year delinquency prevention plan, which will reduce juvenile delinquency by identifying and addressing risk factors within the community. This grant provides funding for prevention services for youth in the Juvenile Court Services Unit. ■ Considerations: The grant provides $25,000 of federal funding and requires a $12,516 match, which will be funded through the FY 2011-12 Operating Budget of the Department of Human Services. ■ Public Information: Public information will be provided through the normal Council Agenda process. ■ Recommendations: It is recommended that City Council accept and appropriate the grant award of $25,000. ■ Attachments: Ordinance Recommended Action: Approval -_2 W�5Submitting Department/Agency: Department of Huma ,services 1 City Manager: 1_a Z 1 AN ORDINANCE TO ACCEPT AND APPROPRIATE GRANT 2 FUNDS TO THE DEPARTMENT OF HUMAN SERVICES 3 (DHS) AND TO TRANSFER FUNDS WITHIN DHS FOR A 4 PROGRAM TO REDUCE JUVENILE DELINQUENCY 5 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, e3M,1 -11 7 1. That $25,000 is hereby accepted from the Virginia Department of Criminal 8 Justice Services and appropriated, with estimated state revenues increased 9 accordingly, to the FY 2011-12 Operating Budget of the Department of Human 10 Services for enhanced prevention of juvenile delinquency, with estimated state 11 revenues increased accordingly. 12 13 2. That $12,516 is hereby transferred within the FY 2011-12 Operating Budget 14 of the Department of Human Services for the required match. Adopted by the Council of the City of Virginia Beach, Virginia on the day of 2012. Requires an affirmative vote by a majority of all of the members of City Council. APPROVED AS TO CONTENT: Management Services CA12197 R-1 February 29, 2012 APPROVED AS TO LEGAL -SUFFICIENCY: 1ACa s zr y CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: An Ordinance to Accept and Appropriate Grant Funds to the Department of Human Services (DHS) and to Transfer Funds within DHS for Youth Multi - Systemic Therapy in the Juvenile Court Services Unit MEETING DATE: March 13. 2012 ■ Background: The Virginia Department of Criminal Justice Services awarded a grant to the Virginia Beach Department of Human Services. The Juvenile Accountability Block Grant provides grants for programs that seek to reduce juvenile delinquency for people with intense mental health disabilities. ■ Considerations: The grant provides $38,482 of federal pass-through funding and requires a $4,276 match. The local match will be provided by a transfer within the FY 2011-12 Operating Budget of the Department of Human Services. ■ Public Information: Public information will be provided through the normal Council Agenda process. ■ Recommendations: It is recommended that City Council accept and appropriate the grant award of $38,482. ■ Attachments: Ordinance Recommended Action: Approval Submitting Department/Agency: Department of Human Servi sr City Manager: y -� 1 AN ORDINANCE TO ACCEPT AND APPROPRIATE GRANT 2 FUNDS TO THE DEPARTMENT OF HUMAN SERVICES 3 (DHS) AND TO TRANSFER FUNDS WITHIN DHS FOR 4 YOUTH MULTI -SYSTEMIC THERAPY IN THE JUVENILE 5 COURT SERVICES UNIT 6 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 7 VIRGINIA: 8 9 10 11 12 13 14 15 1. That $38,482 is hereby accepted from the Virginia Department of Criminal Justice Services and appropriated, with estimated state revenues increased accordingly, to the FY 2011-12 Operating Budget of the Department of Human Services for multi -systemic therapy services for youth in the juvenile court services unit and prevention services. 2. That $4,276 is hereby transferred within the FY 2011-12 Operating Budget of the Department of Human Services for the required match. Adopted by the Council of the City of Virginia Beach, Virginia on the day of 2012. Requires an affirmative vote by a majority of all of the members of City Council. APPROVED AS TO CONTENT: Management Services CA12198 R-1 February 29, 2012 APPROVED AS TO LEGAL SUFFICIER City Atto L. PLANNING Application of SENIOR'S UNLIMITED LIFESTYLES, INC./WILLIE DONALD MARTIN, SR. for a Modification of Condition No. 6 of a Conditional Use Permit (approved January 26, 2010) re a senior housing facility at 5827 Burton Station Road DISTRICT 4 - BAYSIDE RECOMMENDATION 01MIA-1 2. Application of MID ATLANTIC AUTO/DZR, LLC for a Conditional Use Permit re bulk storage/auto repair/truck rental at 184 South Plaza Trail DISTRICT 3 - ROSE HALL RECOMMENDATION . 61"I Ordinance To AMEND Section 902(b)(7) of the City Zoning Ordinance (CZO) re the maximum density of multifamily dwellings RECOMMENDATION APPROVAL NOTICE OF PUBLIC HEARING The regular meeting of the City Council of the City of Virginia Beach will be held in the Council Chamber of the City Hall Building, Municipal Center, Virginia Beach, Virginia, on Tuesday, March 13, 2012, at 6:00 p.m., at which time the following applications will be heard: ROSE HALL DISTRICT Mid Atlantic Auto/DZR, LLC Application: Conditional Use Permit re a bulk storage/auto repair/auto truck rental at 184 South Plaza Trail (GPIN 1487826690). BAYSIDE DISTRICT Senior's Unlimited Lifestyles, Inc./Willie Donald Martin, Sr. Application: Modification of a Conditional Use Permit at 5827 Burton Station Road (GPIN 1458884739). CITY OF VIRGINIA BEACH Ordinance to Amend Section 902(b)(7) of the City Zoning Ordinance pertaining to the Maximum Density of Multifamily Dwellings. All interested citizens are invited to attend. Ruth Hodges Fraser, MMC City Clerk Copies of the proposed ordinances, resolutions and amendments are on file and may be examined in the Department of Planning or online at httD://www.vb ov.conl-t2c 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 Feb. 26 & March 4, 2012 22904384 -68 - Item V -M.8. PLANNING ITEM # 59595 (Continued) This Ordinance shall be effective in accordance with Section 107 (n of the Zoning Ordinance. Adopted by the City Council of the City of Virginia Beach, Virginia, on the Twenty-sixth of January Two Thousand Ten Voting: 10-0 (By Consent) Council Members Voting Aye.- Glenn ye:Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M. Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None January 26, 2010 -67 - Item i- M.8. PLANNING ITEM # 59595 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED, BY CONSENT, an Ordinance upon application of SENIOR'S UNLIMITED LIFESTYLES, INC. / WILLIE DONALD MARTIN, SR. for a Conditional Use Permit, senior housing facility, 5827 Burton Station Road. BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of SENIOR'S UNLIMITED LIFESTYLES, INC. / WILLIE DONALD MARTIN, SR. for a Conditional Use Permit, senior housing facility, 5827 Burton Station Road. GPIN: 14588847390000 DISTRICT 4 — BAYSIDE 8021035393 The following conditions shall be required: 1. The site shall be developed substantially in accordance with the submitted site plan entitled, "Tranquility at The Lakes, Seniors Unlimited Lifestyles, Inc.; Phase One ", prepared by Pentecost Deal & Associates. Said plan is on file in the City of Virginia Beach Planning Department. 2. The proposed buildings shall be constructed substantially in accordance with the submitted elevation entitled "Tranquility at The Lakes, Senior's Unlimited Lifestyles, Inc. ", Prepared by Pentecost Deal & Associates. 3. Every effort shall be taken to retain mature trees located within the proposed open space/ parking lot street frontage area along Burton Station Road. 4. A minimum four (4) foot tall evergreen hedge, branching to the ground, shall be installed along the southeastern property line. The width of the planting area shall be a minimum of three (3) feet. 5. Foundation landscaping shall be required. A minimum of fifty (50) percent of any side of a building facing Burton Station Road shall be planted. A minimum of thirty-three (33) percent of any side of a building facing the proposed road located northwest of site shall be planted. Plantings shall be placed adjacent to building sides or provided in planters near building sides. Planted areas shall be a minimum of three (3) feet in width. One(]) tree or one (1) shrub shall be required for every fifteen (15) square feet of total required landscape area. 6. At least one (1) member of the family living in each unit shall be age sixty-two (62) or older. If the proposed roadway along the northwestern side of the property is not constructed by the end of 2011, the applicant shall seek an Encroachment Agreement with the City of Virginia Beach to provide a driveway from Burton Station Road to the drive aisle located on the northern side of the building. January 26, 2010 - I.LL- I I' U 4 r U a PW a •po E •po PM 9 T Lal W N Q �) 4 le � iia+.. �•� CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: SENIOR'S UNLIMITED LIFESTYLES, INC. / WILLIE DONALD MARTIN, SR., Modification of Conditional Use Permit, 5827 Burton Station Road (GPIN 1458884739). BAYSIDE DISTRICT. MEETING DATE: March 13, 2012 ■ Background: The Conditional Use Permit allowing an Independent Living Senior Housing Facility was approved by the City Council on January 26, 2010. The Conditional Use Permit has seven conditions. Condition 6 requires that at least one member of the family living in each unit be age 62 or older. The applicant desires to allow disabled individuals to also live at the housing facility; thus, Condition 6 is requested for modification such that at least one member of the family either be disabled or 62 years or older. No modifications to the building elevation or site plan are proposed. ■ Considerations: The requested modification is consistent with the Comprehensive Plan's recommendations for this area and is consistent with the Northampton/Burton Station SGA Plan. Additionally, this modification is not expected to have an impact on City services and the parking requirement for an independent living facility is the same as the parking requirement for housing for disabled individuals; therefore, there are no changes to the required parking needs for this site. 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 11-0, to recommend approval of this request to the City Council with the following conditions (Condition 6 of the January 26, 2010 Conditional Use Permit is modified as indicated below by the italic text): 1. The site shall be developed substantially in accordance with the submitted site plan entitled, "Tranquility at The Lakes, Seniors Unlimited Lifestyles, Inc.; Phase One", prepared by Pentecost Deal & Associates. Said plan is on file in the City of Virginia Beach Planning Department. 2. The proposed buildings shall be constructed substantially in accordance with the submitted elevation entitled "Tranquility at The Lakes, Senior's Unlimited Lifestyles, Inc.", Prepared by Pentecost Deal & Associates. _ Senior's Unlimited Lifestyles, Inc. Page 2 of 2 3. Every effort shall be taken to retain mature trees located within the proposed open space/ parking lot street frontage area along Burton Station Road. 4. A minimum four (4) -foot tall evergreen hedge, branching to the ground, shall be installed along the southeastern property line. The width of the planting area shall be a minimum of three (3) feet. 5. Foundation landscaping shall be required. A minimum of fifty (50) percent of any side of a building facing Burton Station Road shall be planted. A minimum of thirty-three (33) percent of any side of a building facing the proposed road located northwest of site shall be planted. Plantings shall be placed adjacent to building sides or provided in planters near building sides. Planted areas shall be a minimum of three (3) feet in width. One (1) tree or one (1) shrub shall be required for every fifteen (15) square feet of total required landscape area. 6. At least one (1) member of the family living in each unit shall be either disabled or age sixty-two (62) or older. 7. If the proposed roadway along the northwestern side of the property is not constructed by the end of 2011, the applicant shall seek an Encroachment Agreement with the City of Virginia Beach to provide a driveway from Burton Station Road to the drive aisle located on the northern side of the building. ■ 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;,, Senior's Unlimited Lifestyles, Inc. �">• R50 ROD, 02 14588847390000 BAYSIDE 1.57 acres Less than 65 dB DNL �y R5D `Pv 82 Ri ze.u�.nn CaMMoruPMM,oP.. WdHication of Conditions yar.PronotiwerPM1 N+rry. 6 February 8, 2012 Public Hearing APPLICANT: SENIOR'S UNLIMITED LIFESTYLES, INC. PROPERTY OWNER: WILLIE DONALD MARTIN SR. STAFF PLANNER: Leslie Bonilla REQUEST: Modification of a Conditional Use Permit for an independent senior housing facility — approved by the City Council on January 26, 2010 ADDRESS / DESCRIPTION: 5827 Burton Station Road GPIN: ELECTION DISTRICT: SITE SIZE: AICUZ: 14588847390000 BAYSIDE 1.57 acres Less than 65 dB DNL SUMMARY OF REQUEST The Conditional Use Permit allowing an Independent Living Senior Housing Facility was approved by the City Council on January 26, 2010. The Conditional Use Permit has seven conditions. Condition 6 requires that at least one member of the family living in each unit to be age 62 or older. The applicant wishes to allow disabled individuals to live at the housing facility; thus, Condition 6 is requested for modification such that at least one member of the family either be disabled or 62 years or older. No modifications to the building elevation or site plan are proposed. LAND USE AND PLAN INFORMATION EXISTING LAND USE: Undeveloped vacant site SURROUNDING LAND North: . Vacant undeveloped land / R -5D Residential District USE AND ZONING: . Vacant undeveloped land / 0-2 Office District SENIOR'S UNLIMITED LIFESTYLES, N1Q-. Agenda Item 6 Page 1 South: • Lake Wright Golf Course / R -5D Residential District East: • Single-family homes / R -5D Residential District West: 0 Single-family homes and undeveloped vacant land / R -5D Residential District NATURAL RESOURCE AND The majority of the site is a vegetated field. There are also mature trees CULTURAL FEATURES: located throughout the site. COMPREHENSIVE PLAN: The Comprehensive Plan designates this area of the subject site as the Burton Station Village, located within the Northampton/Burton Station Strategic Growth Area (SGA) #1. The boundary for the Northampton/Burton Station SGA is generally the area adjacent to the eastern side of Norfolk International Airport north to Shore Drive, the Diamond Springs Road area, the area south of Bayside Road, and along the Northampton Blvd corridor. The area is predominantly industrial, but also has significant tracts devoted to residential and commercial uses. The conceptual plan for the Burton Station Village depicts single- family dwellings, a corner shop, a community center, a memorial park, and a senior housing center. The Housing and Neighborhoods component of the Comprehensive Plan provides the following goals applicable to this request: • Address future housing demand through provision of an adequate supply of safe, decent, attractive and diverse housing, with a range of values, including owner -occupied and rental units, for the purpose of accommodating the present and future needs of all Virginia Beach residents; and • Implementing ways to assist those requiring special housing. Policies associated with these goals are as follows: • Areas planned for housing should be attractive and affordable to a range of income groups, ages, cultures and household types; and • Allow and encourage the type and location of housing for seniors designed to meet their special needs and services including, but not limited to, independent living, assisted living and nursing facilities (pp. 8-7 to 8-9). CITY SERVICES There are no expected impacts to City services as a result of the proposed modification. EVALUATION AND RECOMMENDATION The requested modification is consistent with the Comprehensive Plan's recommendations for this area and is consistent with the Northampton/Burton Station SGA Plan. Additionally, this modification is not expected to have an impact on City services and the parking requirement for an independent living facility SENIOR'S UNLIMITED LIFESTYLES, 1K.,, Agenda Item 6 Page 2 is the same as the parking requirement for housing for disabled individuals; therefore, there are no changes to the required parking needs for this site. In sum, staff concludes the request is acceptable. Affordable housing for seniors and disabled individuals is always in demand. The applicant has designed a project that provides a service that is greatly needed in the city. Staff, therefore, recommends approval of this requested modification of the Use Permit, as conditioned below. CONDITIONS The following conditions are recommended for approval with this request. All conditions with the exception of Number 6 attached to the Conditional Use Permit granted by the City Council on January 26, 2010 remain in affect. Condition 6 of the January 26, 2010 Conditional Use Permit is modified as indicated below. 1. The site shall be developed substantially in accordance with the submitted site plan entitled, "Tranquility at The Lakes, Seniors Unlimited Lifestyles, Inc.; Phase One", prepared by Pentecost Deal & Associates. Said plan is on file in the City of Virginia Beach Planning Department. 2. The proposed buildings shall be constructed substantially in accordance with the submitted elevation entitled "Tranquility at The Lakes, Senior's Unlimited Lifestyles, Inc.", Prepared by Pentecost Deal & Associates. 3. Every effort shall be taken to retain mature trees located within the proposed open space/ parking lot street frontage area along Burton Station Road. 4. A minimum four (4) -foot tall evergreen hedge, branching to the ground, shall be installed along the southeastern property line. The width of the planting area shall be a minimum of three (3) feet. 5. Foundation landscaping shall be required. A minimum of fifty (50) percent of any side of a building facing Burton Station Road shall be planted. A minimum of thirty-three (33) percent of any side of a building facing the proposed road located northwest of site shall be planted. Plantings shall be placed adjacent to building sides or provided in planters near building sides. Planted areas shall be a minimum of three (3) feet in width. One (1) tree or one (1) shrub shall be required for every fifteen (15) square feet of total required landscape area. 6. At least one (1) member of the family living in each unit shall be disabled or age sixty-two (62) or older. 7. If the proposed roadway along the northwestern side of the property is not constructed by the end of 2011, the applicant shall seek an Encroachment Agreement with the City of Virginia Beach to provide a driveway from Burton Station Road to the drive aisle located on the northern side of the building. SENIOR'S UNLIMITED LIFESTYLES;:.tNC. :Agenda Item 6 Page 3 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. SENIOR'S UNLIMITED LIFESTYLES,':INc. Agenda Item 6 Page 4 AERIAL OF SITE LOCATION SENIOR'S UNLIMITED LIFESTYLES, INC.:; Agenda Item 6 Page 5 o � � t 0YG 1011W19 H21WOM 2010 CITY COUNCIL APPROVED SITE PLAN SENIOR'S UNLIMITED LIFESTYLES, INC. ;l Agenda Item 6 Page 6, F�l rl D �! I coo 2010 CITY COUNCIL APPROVED SITE PLAN SENIOR'S UNLIMITED LIFESTYLES, INC. ;l Agenda Item 6 Page 6, F- ilJ 0 z N� WZ) _a pO w cU a z z a zLLI c7 a �o 2010 CITY COUNCIL APPROVED ELEVATIONS SENIOR'S UNLIMITED LIFESTYLES, INC. ;,Agenda Item 6 Page 7y iP 4,F BAYSIDE ►.J�.111V1 7 Vlllllllll�.11 Lll�.vl: ��-.�� ___�-� R5D Z D j� f R5D Zoning with ConditionsProffers, Open Modification of Conditions Space Promotion or PDH -2 Overlays ZONING HISTORY # DATE REQUEST ACTION 1 01/26/2010 Use Permit (independent senior housing facilit Approved 2 02/13/2001 02/13/2001 Use Permit (hotel) Rezoning B-2, 0-2 & 1-1 to Conditional 1-1 Approved Approved 3 06/13/2006 Rezoning R -51D to Conditional 1-1 Approved 4 01/25/2005 01/25/2005 Use Permit (hotel) Rezoning 0-2 to Conditional 1-1 Approved Approved 5 09/10/1996 =Use Permit motel, truck wash facility & bulk storage and A proved a SENIOR'S UNLIMITED LIFESTYLES, INS ,Agenda Item 6 Page 8, R _ � �i� ,k 't 4��•d DISCLOSURE STATEMENT © APPLICANT DISCLOSURE If the applicant is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the applicant name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) '%Nlors' �♦ (See attachment) 2. List all businesses that have a parent -subsidiary' or affiliated business entit/ relationship with the applicant: (Attachllis�t if necessary) V, 1,J 1- lir ❑ Check here if the applicant is NOT a corporation, partnership, firm, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only if property owner is different from applicant. If the property owner is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the property owner name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) 1/1,11.111y. ' C-)AaU No SR . 2. List all businesses that have a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) We'Check here if the property owner is NOT a corporation, partnership, firm, business, or other unincorporated organization. & See next page for footnotes Does an official or employee of the Ci of Virginia Beach have an interest in the subject land? Yes No If yes, what is the name of the official or employee and the nature of their interest? Modifiation of Conditions Application Page 10 of 11 Revised 7rM7 DISCLOSURE STATEMENT SENIOR'S UNLIMITED LIFESTYLES, -INC. Agenda Item 6 Page 9 DISCLOSURE STATEMENT ADDITIONAL DISCLOSURES List all known contractors or businesses that have or will provide services with respect to the requested property use, including but not limited to the providers of architectural services, real estate services, financial services, accounting services, and legal services: (Attach list if necessarv) • , ., . 1 . i ' "Parent -subsidiary relationship" means "a relationship that exists when one corporation directly or indirectly owns shares possessing more than 50 percent of the voting power of another corporation." See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. 2 "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, („) a controlling owner in one entity is also a controlling owner in the other entity, or (iii) there is shared management or control between the business entities. Factors that should be considered in determining the existence of an affiliated business entity relationship include that the same person or substantially the same person own or manage the two entities; there are common or commingled funds or assets; the business entities share the use of the same offices or employees or otherwise share activities, resources or personnel on a regular basis; or there is otherwise a close working relationship between the entities.” See State and Local Government Conflict of Interests Act, Va. Code § 2.2-3101. CERTIFICATION: I certify that the information contained herein is true and accurate. I understand that, upon receipt of notification (postcard) that the application has been scheduled for public hearing, I am responsible for obtaining and posting the required sign on the subject property at least 30 days prior to the scheduled public hearing according to the instructions in this package. The undersigned also consents to entry upon the subject property by employees of the Department of Planning to photograph and view the site for purposes of processing and evaluating this application. 'i / Applican ' Signature Print Name & P.QcR.i P" / t'i LLr,& /til.. W 0s' 'L Q_ Property Owner's Signature (i ifferent than applicant) Print Name Modification of Conditions Application Page 11 of 11 Revised 7/3/2007 DISCLOSURE STATEMENT SENIOR'S UNLIMITED LIFESTYLESANC Agenda Item 6 Page 10 Board Members President ......................... Edna Murrell Vice President .................. Gerald Porter Secretary ........................ Norman Dove Treasurer ........................ Michael Miller James Creecy Evelyn Cooper Thomasena Mason Consultant Rebecca McCaden Project Development Officer Christopher C. Sterling Virginia Community development Corp. CEO Angela Whitehead Senior's Unlimited Lifestyles Inc. DISCLOSURE STATEMENT SENIOR'S UNLIMITED LIFESTYLES; 1NC., ,Agenda Item 6 Page 11 Item #6 Senior's Unlimited Lifestyles, Inc. Modification of a Conditional Use Permit 5827 Burton Station Road District 4 Bayside February 8, 2012 CONSENT An application of Senior's Unlimited Lifestyles, Inc. for a Modification of a Conditional Use Permit for an independent senior housing facility approved by City Council on January 26, 2010 on property located at 5827 Burton Station Road, District 4, Bayside. GPIN: 1458-88-4739-0000. CONDITIONS The following conditions are recommended for approval with this request. All conditions with the exception of Number 6 attached to the Conditional Use Permit granted by the City Council on January 26, 2010 remain in affect. Condition 6 of the January 26, 2010 Conditional Use Permit is modified as indicated below. 1. The site shall be developed substantially in accordance with the submitted site plan entitled, "Tranquility at The Lakes, Seniors Unlimited Lifestyles, Inc.; Phase One", prepared by Pentecost Deal & Associates. Said plan is on file in the City of Virginia Beach Planning Department. 2. The proposed buildings shall be constructed substantially in accordance with the submitted elevation entitled "Tranquility at The Lakes, Senior's Unlimited Lifestyles, Inc.", Prepared by Pentecost Deal & Associates. 3. Every effort shall be taken to retain mature trees located within the proposed open space/ parking lot street frontage area along Burton Station Road. 4. A minimum four (4) -foot tall evergreen hedge, branching to the ground, shall be installed along the southeastern property line. The width of the planting area shall be a minimum of three (3) feet. Item #6 Senior's Unlimited Lifestyles, Inc. Page 2 5. Foundation landscaping shall be required. A minimum of fifty (50) percent of any side of a building facing Burton Station Road shall be planted. A minimum of thirty- three (33) percent of any side of a building facing the proposed road located northwest of site shall be planted. Plantings shall be placed adjacent to building sides or provided in planters near building sides. Planted areas shall be a minimum of three (3) feet in width. One (1) tree or one (1) shrub shall be required for every fifteen (15) square feet of total required landscape area. 6. At least one (1) member of the family living in each unit shall be disabled or age sixty-two (62) or older. 7. If the proposed roadway along the northwestern side of the property is not constructed by the end of 2011, the applicant shall seek an Encroachment Agreement with the City of Virginia Beach to provide a driveway from Burton Station Road to the drive aisle located on the northern side of the building. 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 11 NAY 0 ABS 0 ABSENT 0 BERNAS AYE FELTON AYE HENLEY AYE HODGSON AYE Item #6 Senior's Unlimited Lifestyles, Inc. Page 3 HORSLEY AYE LIVAS AYE REDMOND AYE RIPLEY AYE RUCINSKI AYE RUSSO AYE THORNTON AYE By a vote of 11-0, the Commission approved item 6 by consent. Kedron Springer appeared on behalf of the applicant. Z �^moi �u - St! CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: MID ATLANTIC AUTO/DZR, LLC, Conditional Use Permit, bulk storage/auto repair/auto truck rental, 184 South Plaza Trail (GPIN 1487826690). BEACH DISTRICT. MEETING DATE: March 13, 2012 ■ Background: The applicant requests a Conditional Use Permit to allow motor vehicle rentals for up to 20 trucks. All rental trucks will be stored within a truck storage area located on east side of the property and enclosed with an eight -foot tall solid fence. The applicant will also repair the rental trucks onsite and will also provide motor vehicle repair service to the surrounding community. Hours of operation for the motor vehicle repair facility are the same as the hours of operation of the truck rental business. Approximately four to five employees per shift are anticipated to be onsite at any one given time. The site consists of a 2,828 square foot one-story building with a 1,026 square foot canopy. An antenna, approximately 100 -foot tall, is located east of the building (the antenna is owned by a different property owner and cannot be removed at this time). Three sheds are located along the northern property line and a one-story garage is positioned east of the building. ■ Considerations: The applicant proposes the following improvements to the site: • A minimum of 51 shrubs and 10 trees along Continental Street and South Plaza Trail will be planted; • An eight -foot tall solid fence will be installed along the perimeter of the truck storage yard; • The southernmost access point on South Plaza Trail will be removed and replaced with sidewalk, landscaping, and curb and gutter; • Installation of five planters along the south side of the building; • Removal of the existing free-standing pole sign and installation of a five-foot tall monument style sign in its place; • Reconfiguration of the parking area (new striping and pavement); and • Painting of the building an neutral earth tone color. The site currently is a vacant taxi garage and automobile repair facility. The applicant's proposed use is not consistent with the recommendations of the Comprehensive Plan as it pertains to the South Plaza Trail Neighborhood Development Initiative Area, which is discussed in the Rosemont Strategic Growth Area Master Plan. The Plan notes that "this area is [intended] for a new residential neighborhood consisting of townhouses developed along South Plaza Trail. The plan proposes a transition to quiet residential uses with small neighborhood parks," (p. 46). Mid -Atlantic Auto Page 2 of 4 Staff's evaluation of the Conditional Use Permit, however, determined that the applicant's proposed use is so similar to the use previously located on the site and the proposed site and building improvements so minor, that the use can be viewed as an interim one. Eventually, as the Rosemont SGA develops consistent with the recommendations of the Master Plan, the value of the subject site will increase such that the site will develop with uses as described in the previous paragraph. In sum, staff finds that the changes will result in an improvement to the site. The applicant worked closely with the adjacent neighborhood to assure the residents that the business will be an asset to the community and that the improvements will change a negative into a positive for the area. 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 11-0, to recommend approval of this request to the City Council with the following conditions: The site shall be developed in substantial conformance to the marked -up survey entitled "Preliminary Concept of 184 South Plaza Trail" dated August 23, 2011, and last revised December 15, 2011, with the exception that (a) no fencing shall be located within the front yard and side yard adjacent to the streets and (2) the northwestern entrance driveway on South Plaza Trail shall be modified with a geometric layout that meets Public Works Standards. 2. The site shall be landscaped in substantial conformance to the survey referenced in Condition 1, with the exception that the landscaping adjacent to the proposed eight - foot tall fence along Continental Street shall have Category VI landscape material between the fence and public right-of-way. In addition, the proposed landscaping along South Plaza Trail shall be installed east of the existing sidewalk, within a planting bed of at least five feet in width. A landscape plan shall be submitted for review and approval to the Planning Department/Development Services Center Division. 3. No more than a total of twenty motor vehicles/trailers for rent shall be allowed on the site at any one time. Rental trucks and trailers shall be parked and/or stored within the enclosed gravel and fenced area on the site that has been designated as the `truck and trailer parking area' on the survey as identified in the above Condition 1. 4. The truck and trailer parking area, as shown within the survey identified within the above Condition 1, shall consist of at least six -inches of aggregate and shall be delineated with base- boards, curb stops, or some other City -approved material to contain the aggregate on-site. Prior to the commencement of any land disturbing activity, a storm water plan shall be submitted and approved by the Planning Department/Development Services Center. Mid -Atlantic Auto Page 3 of 4 5. The truck rental, truck storage, and automotive repair facility hours of operation shall be between 9:00 a.m. and 6:00 p.m., Monday through Saturday. 6. Any trucks or trailers returned to the site during non -business hours shall be moved to the truck and trailer parking area, as shown on the survey identified within the above Condition 1, no later than two hours after the commencement of any business on-site. 7. All automotive repairs must take place inside the building. 8. All car washing, automotive detailing, and maintenance of motor vehicles shall take place inside the building. 9. No tires for sale, merchandise, or other discarded items shall be displayed or stored outside. 10. There shall be no signs placed within the windows or on the doors of the rental vehicles. There shall be no pennants, banners, streamers or portable signs placed on the site or on the vehicles. 11. No paging system shall be permitted. 12. All outdoor lighting shall be shielded to direct light and glare onto the premises; said lighting and glare shall be deflected, shaded, and focused away from adjoining property. Any newly installed outdoor lighting fixtures shall not be erected any higher than 14 feet. 13. No outside storage of vehicles in a state of obvious disrepair shall be permitted. If vehicles in this condition require storage, then such vehicles shall be stored within the building. 14. The existing pole sign shall be removed from site and shall be replaced with a sign that complies with sign regulations outlined in the Zoning Ordinance, except the sign shall be a monument type sign no taller than six feet in height. No electronic display signs shall be permitted and the free-standing monument style sign shall be in substantial conformance with the submitted sign elevation entitled, "Mid Atlantic" and dated May 10, 1999. 15. Within 30 days of City Council approval of this Use Permit, the applicant or property owner shall provide the Planning Department / Current Planning Division with a copy of the current lease agreement for the use of the tower and antennas, as well as current licenses granted by the Federal Communication Commission (FCC) for use of the tower and antennas. The applicant or property owner shall provide the City of Virginia Beach Planning Department / Current Planning Division with any changes, renewal, termination, or new lease agreements for this antenna. 16. Should the existing roof -mounted antenna cease to be used for a period of more than one year by an operator licensed by the FCC for use of the tower, the applicant or property owner shall remove the antenna and related equipment. In such case, the applicant or property owner shall also remove the building's canopy, support Mid -Atlantic Auto Page 4 of 4 structures for the canopy, and the concrete islands in which the support structures are attached. 17. This use permit is for the rental, storage, and repair of automobiles only. Sale of automobiles shall not be permitted on the site. 18. The principal building, canopy, and supporting canopy structures shall be painted in a muted earth -tone color(s). ■ 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: "- - - --- "-- rul-I A tlnntir A ntn 13 February 8, 2012 Public Hearing APPLICANT: MID -ATLANTIC AUTO PROPERTY OWNER: DZR, LLC STAFF PLANNER: Leslie Bonilla REQUEST: Conditional Use Permit (truck rental, automobile service, and automotive/bulk storage) ADDRESS / DESCRIPTION: 184 South Plaza Trail GPIN: ELECTION DISTRICT: SITE SIZE: AICUZ: 1487826690 BEACH 1.3 acres 65 to 70 dB DNL Sub Area 3 This application, when submitted, was located in the Rose Hall Election District. Since that time, new City Council Election Districts have been approved by the U.S. Department of Justice. The site of this application is now located in the Beach District due to the boundary changes. APPLICATION HISTORY: At the January 11, 2012 Planning Commission Hearing, this item was deferred to provide the applicant an opportunity to meet with the civic league in the surrounding area, which the applicant has done. Staff has been informed by the applicant the applicant's presentation of the proposed use was favorably received by the civic league; however, staff has also been informed by those in attendance at the meeting that the favorable result was not resounding. SUMMARY OF REQUEST The applicant requests a Conditional Use Permit to allow motor vehicle rentals for up to 20 trucks. All rental trucks will be stored within a truck storage area located on east side of the property and enclosed with an eight -foot tall solid fence. Hours of operation for the truck rental business are Monday through Friday from 9:00 a.m. to 6:00 p.m. and Saturday from 9:00 a.m. to 2:00 p.m. The applicant will also repair the rental trucks onsite and provide motor vehicle repair service to the surrounding community. Hours of operation for the repair facility are the same as the hours of operation of the truck rental business. Approximately four to five employees per shift are anticipated to be onsite at any one given time. MID -ATLANTIC AUTO 'Agenda Item 13 Page 1 The site consists of a 2,828 square foot one-story building with a 1,026 square foot canopy. An antenna, approximately 100 -foot tall, is located east of the building. Three sheds are located along the northern property line and a one-story garage is positioned east of the building. Eleven parking spaces are currently provided south and west of the building. A six-foot tall chain-link fence encloses the site's rear yard. The applicant proposes the following improvements to the site: • The existing 1,026 square foot canopy and 100 -foot tall antenna will be removed from the site when the antenna ceases to be in use for a period of longer than one year; • A minimum of 51 shrubs and 10 trees along Continental Street and South Plaza Trail will be added. • An eight -foot tall solid fence will be added to the perimeter of the truck storage yard in order to screen the trucks from view of the streets; • The southernmost access point along South Plaza Trail will be removed and replaced with sidewalk, landscaping, and curb and gutter; • Five planters are proposed along the south side of the building; • The existing pole sign will be removed and replaced with a five-foot tall monument style sign; • The parking lot will be re -striped to accommodate traffic and aesthetic concerns; and • The building will be painted an earth tone color. LAND USE AND PLAN INFORMATION EXISTING LAND USE: Undeveloped vacant site SURROUNDING LAND North: • Retail shops / B-2 Community Business District USE AND ZONING: South: • Self -standing church / R-7.5 Residential District East: • Self -standing church / B-2 Community Business District West: • Single-family homes / R-7.5 Residential District NATURAL RESOURCE AND There are no known natural resources or cultural features associated CULTURAL FEATURES: with this site. COMPREHENSIVE PLAN: The Comprehensive Plan designates this site as being in the Urban Area, Strategic Growth Area (SGA) 5, Rosemont. The Rosemont SGA Master Plan, adopted September 2011 is one of eight strategic growth areas within the city identified to provide opportunities for continued physical and economic growth; protect established neighborhoods from incompatible development; maximize infrastructure efficiency and create unique and exciting urban destinations. The vision for the Rosemont SGA is a transit - oriented residential village with complementary mix -use and office (p. 2-2). The Rosemont SGA Master Plan identifies this site as being within the South Plaza Trail Neighborhood Development Initiative area. The plan for this area is for a new residential neighborhood consisting of townhouses developed along South Plaza Trail. The plan proposes a transition to quiet residential uses with small neighborhood parks (p. 46). MID -ATLANTIC AUTO Agenda Item 13 Page 2 CITY SERVICES MASTER TRANSPORTATION PLAN (MTP) /CAPITAL IMPROVEMENT PROGRAM (CIP): South Plaza Trail is a suburban minor arterial that changes its typical section at Continental street. North of the intersection it has four lanes; south of the intersection it has two. The generalized capacities reported below are for two lanes. The Master Transportation Plan Major Street Network Ultimate Rights -of -Way lists the ultimate build -out for South Plaza Trail as a four lane collector in an 80' right-of-way. There are no CIP projects in the area. TRAFFIC: Street Name Present Present Capacity Generated Traffic Volume South Plaza Trail 9,400 ADT 15,000 ADT (Level of No Change Service "D") 2011 Average Daily Trips PUBLIC WORKS/TRAFFIC ENGINEERING: The proposed conditional uses are equivalent for trip generation purposes to the prior land use and no change to trip generation is expected. Because the southern existing entrance on South Plaza Trail creates a safety hazard; it must be removed as shown on the applicant's Preliminary Concept. However, the remaining driveway along South Plaza Trail will need to be modified with a geometric layout that satisfies Public Works standards. Also, the two parking spaces closest to the entrance along the northern edge of the parking lot should be removed as vehicles maneuvering into and out of them would be in conflict with traffic entering and exiting the site. WATER: This site must connect to City water. There is a 10 -inch City water line in South Plaza Trail. SEWER: This site must connect to City sanitary sewer. Sanitary sewer and pump station analysis for Pump Station #504 is required to determine if future flows can be accommodated. EVALUATION AND RECOMMENDATION The site currently is a vacant taxi garage and automobile repair facility. Although the proposed use is not consistent with the Comprehensive Plan's land use policies for the South Plaza Trail Neighborhood Development Initiative area within the Rosemont Strategic Growth Area, the proposed conditional use permit for bulk storage, auto repair and truck rental is similar to the preceding taxi car garage and repair facility. Allowing an automotive repair shop and truck rental business that is similar to the previous use should not adversely affect the community and will restore the site to a use that serves the surrounding area. To improve the site, the applicant proposes to remove existing safety hazards as identified by the City's Public Works/Traffic Engineering Division. The southern entrance on South Plaza Trail will be removed MID -ATLANTIC AUTO Agenda Item 13 Page 3 and replaced with sidewalk, landscaping, and curb and gutter. The remaining driveway along South Plaza Trail will also be modified with a geometric layout that satisfies Public Works standards. Two parking spaces closest to the entrance along the northern edge of the parking lot will be removed to reduce the current interference with traffic entering and exiting the site. Staff supports these modifications to improve the safety of the site. The applicant has also agreed to improve the site's appearance. The existing six-foot chain-link fence does not adequately screen the gravel yard from view of the public rights-of-way, thus the applicant has proposed to install a solid eight -foot tall fence with additional landscaping to minimize the view of the gravel yard and parking areas from the public rights-of-way. The existing pole sign, that is over 12 feet tall, will be replaced with a five-foot tall, monument -style sign that is in keeping with the adjacent residential community. Foundation landscaping is proposed along the south side of the automotive repair building. The existing building and 100 -foot tall antenna will be removed if the antenna ceases to be in use for a period of more than a year. Overall, staff finds that the changes will result in an improvement to the site, and recommends approval of this request as conditioned below. CONDITIONS 1. The site shall be developed in substantial conformance to the marked -up survey entitled "Preliminary Concept of 184 South Plaza Trail" dated August 23, 2011, and last revised December 15, 2011, with the exception that (a) no fencing shall be located within the front yard and side yard adjacent to the streets and (2) the northwestern entrance driveway on South Plaza Trail shall be modified with a geometric layout that meets Public Works Standards. The site shall be landscaped in substantial conformance to the survey referenced in Condition 1, with the exception that the landscaping adjacent to the proposed eight -foot tall fence along Continental Street shall have Category VI landscape material between the fence and public right-of-way. In addition, the proposed landscaping along South Plaza Trail shall be installed east of the existing sidewalk, within a planting bed of at least five feet in width. A landscape plan shall be submitted for review and approval to the Planning Department/Development Services Center Division. 3. No more than a total of twenty motor vehicles/trailers for rent shall be allowed on the site at any one time. Rental trucks and trailers shall be parked and/or stored within the enclosed gravel and fenced area on the site that has been designated as the 'truck and trailer parking area' on the survey as identified in the above Condition 1. 4. The truck and trailer parking area, as shown within the survey identified within the above Condition 1, shall consist of at least six -inches of aggregate and shall be delineated with base- boards, curb stops, or some other City -approved material to contain the aggregate on-site. Prior to the commencement of any land disturbing activity, a storm water plan shall be submitted and approved by the Planning Department/Development Services Center. 5. The truck rental, truck storage, and automotive repair facility hours of operation shall be between 9:00 a.m. and 6:00 p.m., Monday through Saturday. 6. Any trucks or trailers returned to the site during non -business hours shall be moved to the truck and trailer parking area, as shown on the survey identified within the above Condition 1, no later than two hours after the commencement of any business on-site. 7. All automotive repairs must take place inside the building. MID -ATLANTIC AUTO Agenda Item 13 Page 4 8. All car washing, automotive detailing, and maintenance of motor vehicles shall take place inside the building. 9. No tires for sale, merchandise, or other discarded items shall be displayed or stored outside. 10. There shall be no signs placed within the windows or on the doors of the rental vehicles. There shall be no pennants, banners, streamers or portable signs placed on the site or on the vehicles. 11. No paging system shall be permitted. 12. All outdoor lighting shall be shielded to direct light and glare onto the premises; said lighting and glare shall be deflected, shaded, and focused away from adjoining property. Any newly installed outdoor lighting fixtures shall not be erected any higher than 14 feet. 13. No outside storage of vehicles in a state of obvious disrepair shall be permitted. If vehicles in this condition require storage, then such vehicles shall be stored within the building. 14. The existing pole sign shall be removed from site and shall be replaced with a sign that complies with sign regulations outlined in the Zoning Ordinance, except the sign shall be a monument type sign no taller than six feet in height. No electronic display signs shall be permitted and the free-standing monument style sign shall be in substantial conformance with the submitted sign elevation entitled, "Mid Atlantic" and dated May 10, 1999. 15. Within 30 days of City Council approval of this Use Permit, the applicant or property owner shall provide the Planning Department / Current Planning Division with a copy of the current lease agreement for the use of the tower and antennas, as well as current licenses granted by the Federal Communication Commission (FCC) for use of the tower and antennas. The applicant or property owner shall provide the City of Virginia Beach Planning Department / Current Planning Division with any changes, renewal, termination, or new lease agreements for this antenna. 16. Should the existing roof -mounted antenna cease to be used for a period of more than one year by an operator licensed by the FCC for use of the tower, the applicant or property owner shall remove the antenna and related equipment. In such case, the applicant or property owner shall also remove the building's canopy, support structures for the canopy, and the concrete islands in which the support structures are attached. 17. This use permit is for the rental, storage, and repair of automobiles only. Sale of automobiles shall not be permitted on the site. 18. The principal building, canopy, and supporting canopy structures shall be painted in a muted earth - tone color(s). MID -ATLANTIC Agenda I ITO sm 13 'age 5 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. MID -ATLANTIC AUTO Agenda Item 13 Page 6 •x '� � y � 4.i k ! �. f CotTtin a r-. y4y C) Q w 4wo MKNPNNW *owr unser PROPOSED SITE PLAN MID -ATLANTIC AUTO Agenda Item 13, Page 8 W as ra 11 R &A 0 116 M � 1 laarYirn � 1 •Y�f Omum iEFSE r 1 ♦ ' C"M sal Fi A{S M7t. r I pt Rao tl e a r i r a Truck and Trajler _ _ _ _ Parking Area r +, a+ awswm a sa @ cow RIOXE tx r-. y4y C) Q w 4wo MKNPNNW *owr unser PROPOSED SITE PLAN MID -ATLANTIC AUTO Agenda Item 13, Page 8 W End View PROPOSED FREE-STANDING SIGN Front and Back View • 9'-0" �{ SIGN ELEVATIONS -1'��N1A'�EAn MID -ATLANTIC AUTO Agenda Item 13 Page 9. DISCLOSURE STATEMENT APPLICANT DISCLOSURE If the applicant is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the applicant name followed by the names of all officers, members, trustees, partners, etc. below: (Attach list if necessary) !! c� 2. List all businessets that have a parent -subsidiary' or affiliated business entity2 relationship with the applicant: (Attach list if necessary) F]Check here if the applicant is NOT a corporation, partnership, firm, business, or other unincorporated organization. PROPERTY OWNER DISCLOSURE Complete this section only if property owner is different from applicant. If the property owner is a corporation, partnership, firm, business, or other unincorporated organization, complete the following: 1. List the property owner name followed by the names of all officers, members, A ustees, partners, etc. below: (Attach list if necessary) 2. List all bus inesses`that have a rent -subsidiary' or affiliated busines4 entity2 relationship with the applicant: (Attach list if necessary) Check here if the property owner is NOT a corporation, partnership, firm, business, or other unincorporated organization. & 2See next page for footnotes O Does an official orIT yee of ity of Virginia Beach have an interest in the 1��1 subject land? Yes No If yes, what is the name of the official or employee and the nature of their interest? Conditional Use Permit Application Page 9 of 10 Revised 7/3/2007 DISCLOSURE STATEMENT MID -ATLANTIC AqTO Agenda Itel _13 Page 12 �•.j���,�y.CH4 `Ot S }i• CITY OF VIRGINIA BEACH AGENDA ITEM ITEM: CITY OF VIRGINIA BEACH — ORDINANCE TO AMEND SECTION 902(b)(7) — An Ordinance to Amend Section 902(b)(7) of the City Zoning Ordinance pertaining to the Maximum Density of Multifamily Dwellings. MEETING DATE: March 13, 2012 ■ Background: This amendment clarifies that the method for determining density for multifamily dwellings is the same in the B -4C Central Business Mixed Use District and the B - 4K Historic Kempsville Area Mixed Use District. For the purpose of calculating maximum density, Section 902(b)(7) of the City Zoning Ordinance currently provides the following: The maximum allowable density for the B -4C and B -4K Districts is listed in the two columns farthest to the right. The `Dimensional Description,' however, in the left column mentions only the B -4C District, which has resulted in confusion. Discussion between staff and the City Attorney's Office resulted in the conclusion that in 2006, when the amendments to the Zoning Ordinance were adopted establishing the B -4K District, the maximum density was provided (right column of 902(b)(7), but an omission resulted in "B -4K" not being added to the first sentence of the left column. ■ Considerations: The mixed-use nature of the B -4K District, as well as the other zoning districts that allow a mixture of uses (B -4C, RT -2, RT -3, and B -3A), necessitates that the method for calculating the maximum density consider the role of the non- B -3A B -4C B -4K Maximum density per acre of multifamily dwellings in the B -4C District. Density shall N/A 36 18 be determined based on the area of the entire zoning lot, even if such lot is partially occupied by other principal uses or conditional uses. For every 10,000 square feet of commercial space in a given development project, an additional dwelling unit per acre beyond that allowed by the maximum density may be built. The maximum allowable density for the B -4C and B -4K Districts is listed in the two columns farthest to the right. The `Dimensional Description,' however, in the left column mentions only the B -4C District, which has resulted in confusion. Discussion between staff and the City Attorney's Office resulted in the conclusion that in 2006, when the amendments to the Zoning Ordinance were adopted establishing the B -4K District, the maximum density was provided (right column of 902(b)(7), but an omission resulted in "B -4K" not being added to the first sentence of the left column. ■ Considerations: The mixed-use nature of the B -4K District, as well as the other zoning districts that allow a mixture of uses (B -4C, RT -2, RT -3, and B -3A), necessitates that the method for calculating the maximum density consider the role of the non- City of Virginia Beach/CZO Amendment Page 2 of 2 residential part of the development in the calculation. All of the zoning districts mentioned above, except the B -3A, calculate maximum residential density using the entire zoning lot, regardless of whether there are other non-residential uses located on the lot. The B -3A District for the Town Center, however, determines residential density with a slightly different method, allowing a specific number of dwelling units for a specific square feet of commercial floor area that is provided. The rationale for the different method in the B -3A is to ensure commercial use remains the prominent land use in Town Center. The proposed amendment, therefore, corrects the omission described above, adding "B -4K" to the first sentence of the left column. The correction is consistent with the original intent of the Zoning Ordinance amendments establishing the 13- 4K Historic Kempsville Area Mixed Use District and is also consistent with the method of determining maximum residential density in other zoning districts where mixed-use is permitted. 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 11-0, to recommend approval of this request to the City Council. ■ 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 Avv City Manager: V I 10 February 8, 20112 Public Hearing CITY OF VIRGINIA BEACH AMENDMENT TO SEC. 902 OF CZO REQUEST: An Ordinance to amend Section 902(b)(7) of the City Zoning Ordinance pertaining to maximum density of multifamily dwellings. SUMMARY OF AMENDMENT This amendment clarifies that the method for determining density for multifamily dwellings is the same in the B4C Central Business Mixed Use District and the B -4K Historic Kempsville Area Mixed Use District. For the purpose of calculating maximum density, Section 902(b)(7) of the City Zoning Ordinance currently provides the following: The section, however, while providing the maximum allowable density for the B -4C and B -4K Districts, the 'Dimensional Description' in the left column mentions only the B -4C District. Discussion between staff and the City Attorney's Office resulted in the conclusion that when the amendments to the Zoning Ordinance were adopted for the establishment of the B -4K District, the maximum density was provided (right column of 902(b)(7), but "B -4K" was not added to the first sentence of the left column. The proposed amendment, therefore, adds "B -4K" to the first sentence of the left column, which clarifies the original intent of the Zoning Ordinance amendments establishing the B -4K Historic Kempsville Area Mixed Use District. RECOMMENDATION Staff recommends approval of the amendment, as it is a clarification of the original intent, and is thus, a 'housekeeping' amendment. CITY OF VIRGINIA BEACH / CZO AMENDMENT Agenda Item 10 Page 1 B -3A B -4C B -4K Maximum density per acre of multifamily dwellings in the B -4C N/A 36 18 District. Density shall be determined based on the area of the entire zoning lot, even if such lot is partially occupied by other principal uses or conditional uses. For every 10,000 square feet of commercial space in a given development project, an additional dwelling unit per acre beyond that allowed by the maximum density may be built. The section, however, while providing the maximum allowable density for the B -4C and B -4K Districts, the 'Dimensional Description' in the left column mentions only the B -4C District. Discussion between staff and the City Attorney's Office resulted in the conclusion that when the amendments to the Zoning Ordinance were adopted for the establishment of the B -4K District, the maximum density was provided (right column of 902(b)(7), but "B -4K" was not added to the first sentence of the left column. The proposed amendment, therefore, adds "B -4K" to the first sentence of the left column, which clarifies the original intent of the Zoning Ordinance amendments establishing the B -4K Historic Kempsville Area Mixed Use District. RECOMMENDATION Staff recommends approval of the amendment, as it is a clarification of the original intent, and is thus, a 'housekeeping' amendment. CITY OF VIRGINIA BEACH / CZO AMENDMENT Agenda Item 10 Page 1 1 AN ORDINANCE TO AMEND SECTION 902 2 (b)(7) OF THE CITY ZONING ORDINANCE 3 PERTAINING TO THE MAXIMUM DENSITY 4 OF MULTIFAMILY DWELLINGS 5 6 Section Amended: § 902 (b)(7) 7 8 WHEREAS, the public necessity, convenience, general welfare and good zoning 9 practice so require; 10 11 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VIRGINIA 12 BEACH, VIRGINIA: 13 14 That Section 902 (b)(7) of the City Zoning Ordinance is hereby amended and 15 reordained to read as follows: 16 17 ARTICLE 9 — BUSINESS DISTRICTS 18 19 .... 20 21 Sec. 902. Dimensional requirements. 22 23 .... 24 25 (b) The following chart lists the requirements within the B -3A Pembroke Central 26 Business Core District, B -4C Central Business Mixed Use District, and B -4K 27 Historic Kempsville Area Mixed Use District for minimum lot area, width, and yard 28 spacing for all uses and structures: 29 30 .... 31 B- B -4C B -4K 3A (7) Maximum density per acre of multifamily dwellings in the B -4C N/A 36 18 and B -4K Districts. Density shall be determined based on the area of the entire zoning lot, even if such lot is partially occupied by other principal uses or conditional uses. For every 10,000 square feet of commercial space in a given development project, an additional dwelling unit per acre beyond that allowed by the maximum density may be built. 32 33 34 COMMENT 35 This amendment clarifies that the method for determining density for multifamily dwellings 36 is the same in the B -4C Central Business Mixed Use District and the B -4K Historic Kempsville 37 Area Mixed Use District. Adopted by the Council of the City of Virginia Beach, Virginia, on the day of , 2012. APPROVED AS O CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: Planning City Attorney's Office CA12094 R-2 December 29, 2011 Item #10 City of Virginia Beach Ordinance to amend Section 902(B)(7) February 8, 2012 CONSENT An Ordinance to amend Section 902(b)(7) of the City Zoning Ordinance pertaining to maximum density of multifamily dwellings. SUMMARY OF AMENDMENT This amendment clarifies that the method for determining density for multifamily dwellings is the same in the B -4C Central Business Mixed Use District and the B -4K Historic Kempsville Area Mixed Use District. For the purpose of calculating maximum density, Section 902(b)(7) of the City Zoning Ordinance currently provides the following: The section, however, while providing the maximum allowable density for the 13- 4C and B -4K Districts, the `Dimensional Description' in the left column mentions only the B -4C District. Discussion between staff and the City Attorney's Office resulted in the conclusion that when the amendments to the Zoning Ordinance were adopted for the establishment of the B -4K District, the maximum density was provided (right column of 902(b)(7), but "B -4K" was not added to the first sentence of the left column. B -3A B -4C B -4K Maximum density per acre of multifamily dwellings in the B -4C District. Density shall be determined N/A 36 18 based on the area of the entire zoning lot, even if such lot is partially occupied by other principal uses or conditional uses. For every 10,000 square feet of commercial space in a given development project, an additional dwelling unit per acre beyond that allowed by the maximum density may be built. The section, however, while providing the maximum allowable density for the 13- 4C and B -4K Districts, the `Dimensional Description' in the left column mentions only the B -4C District. Discussion between staff and the City Attorney's Office resulted in the conclusion that when the amendments to the Zoning Ordinance were adopted for the establishment of the B -4K District, the maximum density was provided (right column of 902(b)(7), but "B -4K" was not added to the first sentence of the left column. Item #11 Reed Enterprises, Inc. Page 2 The proposed amendment, therefore, adds "B -4K" to the first sentence of the left column, which clarifies the original intent of the Zoning Ordinance amendments establishing the B -4K Historic Kempsville Area Mixed Use District. AYE 11 NAY 0 BERNAS AYE FELTON AYE HENLEY AYE HODGSON AYE HORSLEY AYE LIVAS AYE REDMOND AYE RIPLEY AYE RUCINSKI AYE RUSSO AYE THORNTON AYE ABS 0 ABSENT 0 By a vote of 11-0, the Commission approved item 10 by consent. Stephen White appeared before the Commission on behalf of the City. M. APPOINTMENTS BOARD OF BUILDING CODE APPEALS COMMUNITY SERVICES BOARD HEALTH SERVICES ADVISORY BOARD HUMAN RIGHTS COMMISSION LED SIGNS MILITARY ECONOMIC DEVELOPMENT ADVISORY COMMITTEE PARKS and RECREATION COMMISSION PERSONNEL BOARD THE PLANNING COUNCIL N. UNFINISHED BUSINESS IFO. NEW BUSINESS ADJOURNMENT F VIRGINIA BEACH CITY MANAGER'S BRIEFINGS: Y OF COUNCIL ACTIONS I A. INTERIM FINANCIAL Patricia Phillips, 2012 F S Director — Finance D E D H E W Department D S I E J S U I SUBJECT MOTION VOTE A T E D N O M S H L W V E Z Y L N O O R S O 1 P E E E E S M I O O S H L R Y S S S N N D CITY MANAGER'S BRIEFINGS: I A. INTERIM FINANCIAL Patricia Phillips, STATEMENT Director — Finance Department B. MID -YEAR ENERGY UPDATE Lori Herrick, Energy Management Administrator IUIII/IV/V- CERTIFICATION OF CLOSED CERTIFIED 10-0 Y YY Y Y Y Y A Y Y Y E SESSION F MINUTES —February 14, 2012 APPROVED 10-0 Y Y Y Y Y Y Y A Y Y Y G/H/1-1 PUBLIC COMMENT VIRGINIA TOURISM ZONE GAP 3 Speakers FINANCING J-1 PUBLIC HEARING LEASE OF CITY -OWNED PROPERTY No Speakers — Virginia Beach Farmers Market a. Skipper Farms b. Seasons Best Bakery, LLC K-1 Ordinances to AMEND the City Code: ADOPTED/ 10-0 Y Y Y Y Y Y Y A Y Y Y AMENDED, BY a. Section 4-1 re Special Events Permits CONSENT b. Section 5-531 re keeping dogs under DEFERRED TO 10-0 Y Y Y Y Y Y Y A Y Y Y restraint — Leash Law 03/13/2012, BY CONSENT c. ADD Chapter 25.1 of the City Code re ADOPTED, BY 10-0 Y Y Y Y Y Y Y A Y Y Y precious metal and gem dealers CONSENT 2 Ordinances to AUTHORIZE Leases at ADOPTED, BY 10-0 Y Y Y Y Y Y Y A Y Y Y Farmers Market: CONSENT a. Linda K./William E. Skipper (t/a Skipper Farms) b. Seasons Best Bakery, LLC 3 Resolution to ESTABLISH the STONE ADOPTED, BY 10-0 Y Y Y Y Y Y Y A Y Y Y AMBULANCE SERVICE, INC./an CONSENT annual EMS Permit re private ambulance services 4 Resolution to REMOVE the Maple ADOPTED 10-0 Y Y Y Y Y Y Y A Y Y Y Street site as a potential dredge spoils site CITY OF VIRGINIA BEACH Ordinances to ADOPTED, BY 10-0 Y Y Y Y Y Y Y A SUMMARY OF COUNCIL ACTIONS Y Y ACCEPT/APPROPRIATE: CONSENT DATE: 02/28/2012 a. $1,549,138 from FEMA to PAGE: 2 D S ESTABLISH the Severe Repetitive E D H E W AGENDA D S I E J S U I ITEM # SUBJECT MOTION VOTE A T E D N O M S H L W V E Z Y L N O O R S O I P E E E E S M I O O S H L R Y S S S N N D 5 Ordinances to ADOPTED, BY 10-0 Y Y Y Y Y Y Y A Y Y Y ACCEPT/APPROPRIATE: CONSENT a. $1,549,138 from FEMA to ESTABLISH the Severe Repetitive Loss Grant Program/AUTHORIZE a Grant Agreement/remaining $172,127 will be responsibility of property owners b. $31,135 from US Homeland Security ADOPTED, BY 10-0 Y Y Y Y Y Y Y A Y Y Y through Va Emergency Mgmt to Fire CONSENT re Citizen Corps Council/Community Emergency Response Team c. $31,226 from Sheriff's Office Special ADOPTED, BY 9-I Y Y Y Y Y Y N A Y Y Y Revenue/$21,276 in estimated State CONSENT Revenue re a Public Safety Analyst 6 Ordinance to TRANSFER $100,000 from ADOPTED, BY 9-1 Y Y Y Y Y Y N A Y Y Y 19th St Corridor to Rudee Inlet CONSENT Connector Walk, Phase I L-1 Va BEACH FINANCIAL APPROVED/ 10-0 Y Y Y Y Y Y Y A Y Y Y SERVICE/EDWARD HALLORAN re CONDITIONED, Variance to Section 5B of Site Plan Ord to BY CONSENT preserve historic structure at 5241 Princess Anne Road re the Floodplain KEMPSVILLE DISTRICT 2 COURTHOUSE SELF -STORAGE APPROVED/ 10-0 Y Y Y Y Y Y Y A Y Y Y ASSOC Street Closure re portion of CONDITIONED, James Madison Boulevard BY CONSENT PRINCESS ANNE DISTRICT 3 TKC LAND DEVELOP II, LLC CUP APPROVED/ 10-0 Y Y Y Y Y Y Y A Y Y Y re retail store/bulk storage at Princess CONDITIONED, Anne/Sandbridge Roads BY CONSENT DISTRICT 6 - PRINCESS ANNE 4 INLAND DIVERSIFIED REAL APPROVED/ 10-0 Y Y Y Y Y Y Y A Y Y Y ESTATE SERVICES, L.L.C. CUP re CONDITIONED, outdoor recreation at 3300-3388 BY CONSENT Princess Anne Road. PRINCESS ANNE DISTRICT 5 CITY COZ from R-10 to P-1 HK at 524 APPROVED, BY 10-0 Y Y Y Y Y Y Y A Y Y Y Kempsville Road re a public park CONSENT DISTRICT 2 - KEMPSVILLE 6 MCQ BUILDERS, LLC. —1 from APPROVED, BY 10-0 Y Y Y Y Y Y Y A Y Y Y PDH -2 to P-1 at 467/473 North CONSENT Witchduck Road. BAYSIDE DISTRICT CITY OF VIRGINIA BEACH Ordinance to AMEND Sect 111/1001 ADOPTED, BY 10-0 Y Y Y Y Y Y Y A SUMMARY OF COUNCIL ACTIONS Y Y of CZO re high and low explosives CONSENT DATE: 02/28/2012 M APPOINTMENTS RESCHEDULED B Y PAGE: 3 O D S E N S U S BOARD OF BUILDING CODE E D H E W AGENDA D S I E J S U I ITEM # SUBJECT MOTION VOTE A T E D N O M S H L W V E Z Y L N O O R S O I P E E E E S M I O O S H L R Y S S S N N D 7 Ordinance to AMEND Sect 111/1001 ADOPTED, BY 10-0 Y Y Y Y Y Y Y A Y Y Y of CZO re high and low explosives CONSENT M APPOINTMENTS RESCHEDULED B Y C O N S E N S U S BOARD OF BUILDING CODE APPEALS COMMUNITY SERVICES BOARD HEALTH SERVICES ADVISORY BOARD MILITARY ECONOMIC DEVELOPMENT ADVISORY COMMITTEE THE PLANNING COUNCIL CLEAN COMMUNITY COMMISSION Reappointed: 3 year term — 04/01/2012 — 03/31/2015 Beth Bailey, Kathleen M. Reed, Christina M. Tra ani HUMAN RIGHTS COMMISSION Reappointed: 3 year term — 04/01/2012 — 03/31/2015 Beatriz Amberman, William Hearst, Dr. Agnes Moon PARKS and RECREATION Appointed: COMMISSION Unexpired term thru 08/31/2014 Michelle Johnson PERSONNEL BOARD Reappointed: 3 year tern — 03/01/2012 — 02/18/2015 Ruby Christian SOCIAL SERVICES BOARD Appointed: Unexpired term thru 06/30/2014 Donna S. Morris N/O/P ADJOURNMENT 6:21 PM